Courts on Trial

Justice Osborn's Reasons for Judgment are so comprehensively and cohesively wrong
that I do not believe it possible that they were concluded by either judicial reason or accident.

You be the judge.

Justice Osborn and the Gravamen of the 1995 Woodleigh Heights proceeding
(Gravamen is the grievance complained of; the substantial cause of the action)

This page describes the aspect of Justice Osborn's Reasons for Judgement related to the gravamen of a previous proceeding in the Supreme Court. In essence, Justice Osborn misrepresented the gravamen of this proceeding, then relied on these misrepresentations to find the present action was barred because it had been set out in the previous hearing. This effectively ignored, denied, concealed and/or made wrong the fact that the "Water Supply Agreement" was unlawful, and that lawyers had been misrepresenting this fact since at least 1986.

Layman's synopsis

The lawyers for the Council and the Water Authority wanted my proceeding struck out on the basis that it had all been done before i.e. that I was arguing the same thing as I had in a previous proceeding in 1995.

The "cause of action" (or gravamen) in the 1995 proceeding, in respect to Woodleigh Heights, was that:

the "Water Supply Agreement" and the 1982 water supply were unlawful; BUT
there was another water supply that consisted of a lake and tanks etc. (the 1978 water supply) which had been approved as part of the planning permit, and I had always been entitled to that water supply.

The "cause of action" in the new proceeding in 2005 was based on my discovery that the reticulation system of the 1978 water supply had in fact not been completed when the plans were sealed, despite being required by the planning permit, and that the Council and Water Authority had concealed this from me and the Court in previous proceedings.
Justice Osborn, in his Reasons for Judgment, misrepresented that the gravamen of the 1995 proceeding as being related to the 1982 water supply, then said that the release in that proceeding (i.e. agreeing not to argue the same thing again) was a "complete bar to the present action".

In relation to Woodleigh Heights, at the hearing before Justice Osborn, Dixon Delany and Ahern repeated the overt fabrications which they had submitted to Master Efthim. These fabrication were repeated at paragraphs 94 to 98 of their Second Outline of Submissions [complete outline here]

Whereas Middleton, by his abject neglect had completely and utterly failed to put the true cause of action to Efthim I did not when it came to Osborn.

I spelled out in clear detail that the the question related to the 1978 reticulation system and that Dixon, Delany and Ahern had relied upon deception and obfuscation to deceive Master Efthim so even Justice Osborn with his dextrous sleight of mind could not rely on the deceptive submissions of Dixon, Delany and Ahern.

Osborn instead fabricated his own reasons to find against me however the reasons fabricated by Osborn depended upon holding as true the fabrications of Major General Garde to the effect that the 1982 Water Supply Agreement was lawful and enforceable and that the timeshare company WHRD owned and operated the water supply and reticulation system. [Garde's fabrications here]

In order to coordinate his fabrications as set out on this page Osborn also fabricated his Reasons in relation to the Planning Permit for the Woodleigh Heights subdivision.

Details

Under the heading Woodleigh Heights Factual Background, Justice Osborn said at his paragraph 18:

"following such purchase a dispute arose as to the withholding of reticulated water supply from the plaintiffs' land by the subdivider. Such water was supplied by the Water Board to this subdivision in 1982."

On the facts before and known to Justice Osborn, this statement is simply wrong:
- "the subdivider", Woodleigh Heights Resort Developments Pty. Ltd. (WHRD) could not, did not and did not purport to withhold the water supply.
- The Water Authority, not WHRD, purported to withhold the water supply, as it was the only entity with a statutory authority to supply and therefore also the only entity which could purport to withhold supply.
- The water supply and the "Water Supply Agreement" were both unlawful, the water was not lawfully provided. One cannot withhold that which cannot be lawfully provided.
- This representation by Justice Osborn appears to validate the misrepresentation of Mr. Garde QC but manifestly flies in the face of the law and the facts before him.
In the next paragraph, paragraph 19, Justice Osborn said:

"Ultimately the plaintiffs sued the Council and the Water Board in 1995 alleging that each had made fraudulent misrepresentations as to the plaintiffs' lack of entitlement to access to such water. As a result it was alleged the plaintiffs had suffered loss upon a mortgagee sale at which the land achieved values reflecting a lack of water supply when (it was alleged) the plaintiffs were in truth entitled to access to such water supply."

Again, on the facts before Justice Osborn, this statement is simply wrong:
- The words "such water" are a specific reference to the unlawful 1982 water supply as stated at his paragraph 18.
- Paragraphs 6 to 13 of the Amended Further Statement of Claim of the 1995 proceeding describes the 1978 water supply and paragraph 14 of that Statement of Claim plainly alleges that I had entitlement to that 1978 water supply.
- Paragraph 33(b) of the 1995 Statement of Claim sets out that the Council and Water Board represented that the "Water Supply Agreement" was lawful. Paragraph 57A(a) of that Statement of Claim specifically alleges that this representation was in fact false and that the "Water Supply Agreement" was therefore unlawful. There is nothing whatsoever in that Statement of Claim which alleges that I had an entitlement to the unlawful water supply provided pursuant to that unlawful "Water Supply Agreement".
- Paragraph 57A(b) of the 1995 Statement of Claim specifically states that the representations of the Council and Water Board set out in paragraphs 33(c), (di), (dii) and (e) are false because of the reasons set out in paragraphs 7 to 14 of that Statement of Claim. In other words, the Council and Water Board represented that, under the water agreement:
  - WHRD owned and operated the water supply in the subdivision; and
  - I did not have an entitlement to the water supply; and
  - I could not have access to the water supply; and
  - the body corporate was not entitled to a water supply.
  These representations by the Council and Water Authority were all false because all owners were entitled to a water supply - the 1978 water supply required by the planning permit as described in paragraphs 7 to 14 of that same Statement of Claim.
- There are no possible grounds for Justice Osborn's paragraph 19. Justice Osborn represents that my 1995 Statement of Claim alleged an entitlement to the water provided by the Water Board. The facts are that Statement of Claim manifestly alleges that the "Water Supply Agreement" was unlawful and further manifestly alleges an entitlement to the 1978 water supply which was approved by the Council and was body corporate property and not supplied by the Water Board
  .
Then at his paragraph 148 Justice Osborn consolidated the misrepresentations which he made at his paragraphs 18 and 19. At paragraph 148 Justice Osborn said:

"It was this latter water supply to which the plaintiffs were denied access. This denial formed the gravamen of the Woodleigh Supreme Court proceedings."

In this paragraph Justice Osborne concisely and unequivocally asserts that the "cause of action" in the 1995 Supreme Court proceeding was that I was denied access to the 1982 water supply provided by the Water Board. There are simply no grounds whatever for this assertion despite the fact that at his paragraph 165 Justice Osborn asserts that he "analysed" the Statement of Claim in the 1995 proceeding. He plainly did not conclude the "gravamen" set out by him from that analysis.

At his paragraph 63 Justice Osborn says:
"In 1995 the plaintiffs instituted proceedings in this Court in respect of the wrongful refusal of water supply to the Woodleigh land."

The fact is, however, there was no "wrongful refusal" alleged. The 1995 proceeding clearly alleged concealment of the rights to the 1978 water, not "wrongful refusal" of the 1982 water supply. Again Justice Osborn's statement is not true.

Then at his paragraphs 65 and 175 respectively, Justice Osborn says, of the 1995 proceeding:

"This claim was also settled for value and a release was executed by the plaintiffs which released the Council and the Water Board from "all actions, suits, demands and costs, arising out of or in any way related to the subject-matter of the proceedings."" (my emphasis); AND

"... ... in my view it is apparent that the release given with respect to the Woodleigh Supreme Court proceedings is a complete bar to the present action".

Justice Osborn purports to reach this "view" after misconstruing / misstating the "subject matter" / "gravamen" / "cause of action" of the 1995 proceeding to be denial of access to the 1982 water supply.

Additionally the "cause of action" of the 2005 proceeding is not even related to the 1982 water supply.

Then at his paragraph 152 Justice Osborn says:

"... ..... described what was done in 1982, namely the provision of a reticulated water supply to the cluster subdivision. It was after all denial of access to this water supply which formed the basis of the Plaintiff's actions". (my emphasis)

Again this paragraph is simply wrong - same thing, just more of it.

Of note, at paragraphs 63 to 71 of his Reasons, Justice Osborn purports to set out what the 1995 Statement of Claim alleged in relation to the 1978 water supply. His paragraphs set out what is contained within paragraph 8 to 13 of that Statement of Claim.

Justice Osborn omitted however to transcribe or set out what was contained in the very next paragraph. Had he done so he could not have represented that the gravamen of the 1995 proceeding was denial of entitlement to the 1982 supply. Paragraph 14 clearly states that I had a right to the 1978 water supply. This was the basis for the true gravamen. This must have been known to Justice Osborn.

Justice Osborn misrepresented the gravamen of the 1995 proceeding and then relied upon those misrepresentations to say that the release in the 1995 proceeding was a "complete bar to the present action". Justice Osborn did not adjudicate on the facts before him and I believe the facts show his "Reasons" were carefully constructed to deny, conceal, ignore and/or make wrong my allegations about misrepresentations to the Court. It is not possible to construe the gravamen of the 1995 Woodleigh Heights proceeding as done by Justice Osborn.

It is noteworthy and relevant that Justice Osborn also misrepresented the gravamen of the 1988 Tylden Rd proceeding by omitting paragraph 7 from the Statement of Claim in that proceeding. Osborn also omitted all relevant paragraphs from the "Book of Pleadings". His Reasons depend upon a combination of omissions and fabrications.

Had Greg Garde told the truth which was known to him, that the Water Supply Agreement was unlawful and unenforceable and that WHRD did not own and operate the water supply and retiulation system then Osborn's fabrications would not have been made. Osborn's fabrications had the clear effect of ignoring, denying and concealing the fact that the Major General habitually misleads the Courts. [see teaser page]

Full Amended Further Statement of Claim in the 1995 Woodleigh Heights proceeding may be viewed here.

Justice Osborn's full Reasons for Judgment [also available on austlii database]

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