Courts on Trial

Justice Osborn's "Authenticated Orders" were so cohesively wrong that I do not believe it possible that they were "authenticated" by accident or "slip" as the Supreme Court quaintly calls it.

You be the judge.

Justice Osborn's "Authenticated Orders" containing complimentary "errors"

This page describes the circumstances around the issue of two "Authenticated Orders", each containing complimentary "errors" which would render my appeal against Justice Osborn's orders invalid.

Osborn had fabricated his Reasons for Judgment. These supposed "Authenticated Orders" had the effect of rendering my appeal invalid.

Layman's Synopsis

Justice Osborn was scheduled to hand down his judgment on 29th November 2006. On the way to the Court I was delayed and unable to attend the session. Justice Osborn issued his Reasons for Judgment, which found against me, and adjourned til the following week to enable me to attend.

When I read the Reasons for Judgment, I was outraged at their "wrongness" and prepared a submission pointing out the "wrongness" of the Reasons in no uncertain terms. At the session the following week, Justice Osborn read my submission and then went on to make orders.

The transcripts of both sessions showed Justice made no orders on 29th November, other than to adjourn the session for 8 days, and all orders were made on 7th December.

I lodged an appeal within the required 14 days from 7th December. The lawyers for the Council and Water Authority then applied to the Court to force me to pay for the costs of the appeal up front.

Some time later I got a letter from the lawyers for the Council and Water Authority saying my appeal had been filed too late. This was some five months after my appeal had been filed and after the lawyers had applied for security for costs of the appeal. Enclosed were copies of two "Authenticated Orders" by Justice Osborn which appeared to make my appeal invalid.

These "Authenticated Orders" contained complimentary "errors". The first "Authenticated Order" of the 29th November contained an order that had not been made on that day. The second "Authenticated Order" of the 7th December omitted an order that had been made on that day.
The combined effect of these "errors" was to make it appear that my appeal was filed too late. Only after I complained loudly to the Court about the "errors" were new Authenticated Orders made and my appeal allowed to stand.

Background

The hearing before Justice Osborn was held over two days, 31st October and 1st November 2006. After the hearing Justice Osborn adjourned to consider his determination.

I received notice that his Judgment would be handed down on 29th November 2006. I was flying to Melbourne to attend the Court however, when I was about 10 minutes out of Melbourne, a large weather front came through and I had to divert to Mangalore. Upon landing I called my Melbourne agent, Mr. Daniel Isakow, and asked him to attend Court to explain my absence. Mr. Isakow attended, not as my solicitor, because he was not, but as a "friend of the Court" to explain my absence.

Mr. Isakow telephoned me and told me that Justice Osborn had handed down his written Reasons for Judgment and that he had found against me. He also told me that the Court had adjourned for eight days so that I could attend for argument with respect to costs. I formed the view that orders disposing of my proceeding had been made on that day.

I flew home later that day and Mr. Isakow faxed me a copy of the Reasons for Judgment. I was outraged at the manifest wrongs of the Reasons for Judgment which were instantly apparent (and now, in part, set out in this website).

I decided to make a very strong written submission as to these wrongs. I wrote my submission in the firm belief that orders disposing of the matter had been made on 29th November and my submission reflected that belief. The submission was a submission that Justice Osborn not make costs orders, pending appeal.

I attended Court on 7th December 2006 and I handed up my submission before any costs orders were made. Justice Osborn adjourned to read my submission. After reconvening he then made his orders. I was surprised to find, as it appeared to me, he was again making orders disposing of the matter and then making the costs orders which included indemnity costs orders.

I then obtained a copy of the transcript of 29th November 2006 and learned that no orders had been made on that day other than to adjourn for seven days. The orders disposing of the matter were all made on 7th December.

This was good for me because a notice of appeal must be lodged within 14 days of the orders appealed from. I had eight extra days than I originally thought to do this. I filed my appeal on the 14th day after the 7th December.

The Council and Water Authority then made application to the Court of Appeal that I lodge money with the Court as security for costs of the appeal.

Some time later, I received a letter from Mr. Steven Edward, solicitor for the Water Authority. This letter asserted that my appeal had been filed out of time and this assertion was based upon two supposed "Authenticated Orders" of the Supreme Court of Victoria.

The first of these "Authenticated Orders" said that the appeal had been dismissed on the 29th November and the second only said that orders for costs were made on 7th December.

The effect of this was to make my appeal filed too late. If this was true, how could the lawyers have missed it? Why would they even bother to apply for security for costs? The lawyers are diligent people, had they thought that my appeal had been filed too late. They would have had the appeal immediately dismissed on that basis.

Now, the demonstrable fact is that both of these "Authenticated Orders" were manifestly wrong. The real question is whether:

(a) The "errors" are genuine "errors" which occurred by accident or "error" or "slip"; or

(b) The "errors" were deliberate and the "Authenticated Orders" were fabricated for ulterior purpose.

The evidence - you be the judge...

Authenticated Orders are very serious documents, they are not made carelessly or lightly.
On 29th November 2006, Justice Osborn handed down his written Reasons for Judgment. On the last line, these written reasons contain the words:
- "In all the circumstances the appeal from the Master should be dismissed."
No orders were made on 29th November at all, apart from adjourning the hearing. [see last page of transcript] [full transcript here]
On 7th December 2006, before any orders were made, I made a strong written submission to Justice Osborn which explicitly said that his Reasons were "manifestly wrong and without any basis in fact or reason". [see paragraph 2]
My written submission provided substantial comment and documentary evidence as to the wrongness of Justice Osborn's Reasons. (The submission also said "your Honour should consider resigning" however I blacked that out at the last minute. [see page 7] )
After reading my costs submission Justice Osborn made Court orders against me. The orders made on 7th December were:
- ... firstly that the appeal be dismissed.
- ... secondly that there be judgment for the defendants.
- ... thirdly that the plaintiffs pay the defendant's costs of the proceeding including the costs of the appeal on an indemnity basis.
My Notice of Appeal was filed within 14 days of the 7th December 2006 when the order disposing of the matter was made.
The lawyers notified me on 5th January 2007 of their intention to apply for security for costs.
Mr. Edward's letter of 7th May 2007 stated my appeal had been filed out of time and included copies of two supposed "Authenticated Orders". The security for costs application had already been instigated.
The first "Authenticated Order" represented that on the 29th November 2006 Justice Osborn ordered:

"1. The appeal should be dismissed and there be judgment for the Defendants"
"2. The further hearing of this matter with respect to costs is adjourned to 7 December 2006 at 9.30 am"
The second "Authenticated Order" represented that on the 7th December 2006 Justice Osborn ordered:

"1. The Plaintiffs pay the Defendants' costs of the appeal on an indemnity basis"
Both of these "Authenticated Orders" contain "errors" which compliment one another.
- The "Authenticated Order" of 29th November contains an error of addition as the fact is that no orders disposing of the matter were made on that day.
- The "Authenticated Order" of 7th December omits the first order which was in fact made on that day and only contains costs orders made on that day.
- The first "Authenticated Order" could not stand without the omission in the second "Authenticated Order" and vice versa.
Justice Osborn was aware that, at the time of writing my submissions to him, I believed that orders disposing of the matter were made on 29th November. [see paragraph 1]. The only orders referred to in my costs submission were costs orders [see paragraph 5, and last page] [full costs submission here]
The "Authenticated Orders" coincide with my expressed, but mistaken, belief that orders disposing of the matter were made on 29th November.
The order set out in the "Authenticated Order" of 29th November is not and cannot be construed to be an order of the Court. The words "should be dismissed" are totally ineffectual and do not include the meaning "is dismissed".
The words of the supposed order of 29th November were never uttered in Court. These words are an exact copy of the last line of the Reasons for Judgment.
Had these "Authenticated Orders" been allowed to stand, that would have been the end of my appeal.

The lawyers for the Council and Water Authority sought to rely on these "Authenticated Orders" to have my appeal invalidated. These lawyers were in the Court on 29th November and 7th December and they knew full well what orders were made and when. I had to fight the Court and the lawyers to have the true and correct orders issued. New Authenticated Orders were eventually issued, purportedly under the "slip" rule. The reality is however there was no "slip" the so called "Authenticated Orders" containing complimentary errors could not have occurred by accident or slip. They were deliberate omission and addition.

At the security for costs hearing before Justices Buchanan and Redlich Justice Buchanan said to the effect "there was nothing in my allegations about the Authenticated Orders". I say that there is something in the mere fact of these "Authenticated Orders" let alone the whole of the facts and circumstances surrounding them. A valiant ettempt was made by the lawyers to have my appeal disallowed on the basis of them.

I believe Justice Osborn's "Authenticated Orders" were fabricated in an attempt to prevent my appeal from being heard in order to avoid scrutiny of his Reasons for Judgment. Having regard to all the matters and things set out on this website, I believe these "Authenticated Orders" were not an isolated "error", they were a further fabrication.

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