Justice Osborn's Reasons dissected
(for the die-hard reader... and the lawyers with fine tooth combs)
I provide the following commentary for those who read Justice Osborn's Reasons for Judgment in their entirety.
Justice Osborn's full Reasons for Judgment [also available on austlii database]
Paragraphs 3 to 16 - Justice Osborn's factual background was in fact not fact, see Random Wrongs and paragraph 18 & 19 below
Paragraphs 18 and 19 - See here.
Paragraph 54 to 60 - Dealt with here.
Paragraph 62 - Relies upon paragraphs 54 to 60, see releases
Paragraphs 63 to 71 - Dealt with here. These paragraphs rely on omission.
Paragraph 73 - Relies upon a false assertion in footnote 11 [here]
Paragraphs 74 to 80 - Refer to circumstances created from the fact of the unlawful "potable" water supply and "Water Supply Agreement" and which unlawfulness is effectively ignored, denied or concealed by Justice Osborn.
Paragraph 81 - Wrongly asserts that I sought to resile from the terms of settlement for the 1995 Woodleigh Heights proceeding whereas the record clearly shows that I sought to have them set aside on the grounds that they had been deceitfully obtained.[see releases]
Paragraph 82 - Simply a nonsense and wrong. It is manifest that the assertion by Justice Osborn that the "present proceeding arises out of the same matrix of facts" as the two previous proceedings is simply false [refer here and here]. In addition it is simply a nonsense to assert that sealing was unlawful [refer s.569B(10) of the Local Government Act.] The fact is, at law, once sealed all things, for all purposes are lawful including the sealing. I did not assert, imply or allege any such thing either in the previous proceedings or in the 2005 proceeding. In the 2005 proceeding I alleged that the Council sealed the plans in contravention of its duty to refuse to seal them. This simply is not an allegation of unlawful sealing and no such allegation was expressed or implied in either of the two previous proceedings.
Paragraph 87 to 89 - These paragraphs allude to, but avoid, the fact that Master Efthim was misled.
Paragraph 94 to 95 - Correctly articulate the true "causes of action" which were demonstrably not articulated by the lawyers for the Council and Water Authority.
Paragraphs 96 to 100 - A partial, unrepresentative regurgitation of my submissions.
Paragraph 101 - Justice Osborn comes to the conclusion that the Tylden Rd claim cannot succeed.
(a) This assertion by Justice Osborn depends upon his misrepresentations as to the 1988 Tylden Rd proceeding.
(b) This assertion also depends upon his misrepresentations as to the 1988 Tylden Rd proceeding, his misrepresentations providing verisimilitude to Master Efthim's Reasons and other misrepresentations by him.
(c) No concealment??? Only the perjury and falsification of documents before the Magistrates Court and Justice Kaye and the eight separate false admissions in the County Court and the falsification of documents in the County Court, none of which get a mention in Justice Osborn's Reasons. [see concealment]
(d) False, Osborn misrepresented the facts and then said that they should have been known. Let him set out the true facts known to him and then say this, refer 1988 Tylden Rd proceeding.
(e) This assertion by Justice Osborn again depends Justice Osborn's misrepresentations and his overt denial by omission of the fact of the overt fraudulent concealment.
Paragraph 102 - Here Osborn comes to a number of conclusions re Woodleigh Heights.
(a) This paragraph was based upon the fabrications of the lawyers and Master Efthim's misunderstanding. Does anyone really believe that the "complete plan" led to an understanding of the Woodleigh Heights "cause of action"?
(b) False, see here
(c) False, see here
(d) Based upon Osborn's fabrications.
(e) More of the same, this paragraph is based upon his misrepresentations as to the gravamen.
(f) Ditto
Paragraph 103 - refers to a release given in respect to the Magistrates Court proceeding. There was no such release. Assuming and allowing that Justice Osborn meant the release given in the 1988 County Court proceeding then the matters here put an end to that. Justice Osborn misrepresented the facts of the 1988 Tylden Rd proceeding.
Paragraph 104 - Dealt with here
Paragraphs 106 and 107 - Depend upon the same things and are dealt with here
Paragraph 115 (a) - False, refer here and here
Paragraph 115 (b) - That the plans did not show all roads is evidence of nothing except contrived plans.
Paragraph 115 (c) - False, refer here and here
Paragraph 116 - False, refer here and here
Paragraph 117 - False, this is Justice Osborn on the Book of Pleadings which was used to mislead Master Efthim.
Paragraphs 118 (a), (b) and (c) - True extracts from the Book of Pleadings however they are evidence of nothing except the overt omissions of osborn.
Paragraph 118 (d) - A fabrication, it is false. Nothing of the sort is expressed or implied in the Book of Pleadings and additionally the Amended Statement of Claim which was prepared after the Book of Pleadings specifically alleges at its paragraph 7 that the Notice of Requirement requiring construction of roads was served. The evidence which was squarely before Justice Osborn demonstrates the exact opposite of what he says. [complete Book of Pleadings here]
Paragraph 126 - The "Black Book" contained documents discovered in the 1988 Tylden Rd proceeding, these discovered documents included the documents fabricated for the purpose of deceiving the Magistrate and Justice Kaye and additionally included a copy of the 18-lot plan with the handwritten words "Original Sealed ... " and a Thirtieth Schedule Notice with the handwritten words "Plan submitted in 5 sections" - these were overt misrepresentations designed and intended to mislead me and they did. [see concealment] Osborn's Paragraph 126 is additionally dealt with under Prejudice v truth
Paragraphs 127 to 129 - Refer comments re paragraph 126
Paragraph 130 - A fabrication which relies upon the things set out in Osborn and the 1988 Tylden Rd proceeding page.
Paragraph 143 - Refer paragraphs 126 and 130
Paragraph 144 - My understanding that the water mains were not laid at Woodleigh Heights flowed from my understanding that the Notice of Requirement had not been served in relation to Tylden Rd. Get real Osborn. Even in the context of the rest of Osborn's fabrications this one is, well........
Paragraph 147 - Here Osborn goes again, potable, potable, potable. My 1995 Statement of Claim said no such thing. The 1982 supply was nothing more than an unlawful supply. Osborn's "not extended to the plaintiffs' allotments" is rubbish. It ran as close to some of my allotments as to the allotments of WHRD. This is just further fabrication by Osborn to suit his scheme.
Paragraph 148 - See Woodleigh Heights Gravamen
Paragraph 151 - The Council and Water Authority possessed this plan and additionally the facts evinced by it, namely that the 1978 water mains were not installed, are admitted by the Council and Water Authority in their strike-out grounds, and being admitted I did not have to adduce evidence. The proceeding before Osborn was merely to determine when I first knew of the fact, not to prove the fact.
Paragraph 152 - See paragraph 151
Paragraph 153 - Potable, potable, non-potable etc. refer Osborn and the planning permit.
Paragraph 154 - An outright fabrication, I submitted no such thing, see also Osborn and the planning permit
Paragraph 155 - Evidence was not required at the hearing before Osborn. That the mains were not laid was admitted. The Statement of Claim pleaded both deliberate and careless.
Paragraph 156 - Refer Osborn and the planning permit
Paragraph 157 - See the Council and Water Authority's submission to the Planning Appeals Tribunal at star. This was just a further fabrication of, raised and determined by Osborn and which flew in the face of the facts.
Paragraph 160 - Rubbish - see Osborn and the planning permit.
Paragraph 161 - Rubbish - refer para 160
Paragraph 162 - Careless was pleaded in the alternative.
Paragraph 163 - See paragraph 181 below.
Paragraph 164 - The misconceptions are Osborn's fabrications re the planning permit and "potable" water. As to no new evidence of fact, Osborn knew full well that the new fact was that the water mains had not been laid and this fact was admitted to in the grounds for strike out. In addition the fact that I learned this from the "Reticulation Plan" shown to me in the Practice Court was also admitted. [see paragraph 86 of Council's outline]
Paragraph 165 - Sure, Osborn analysed the 1995 Woodleigh Heights proceeding but he fabricated the gravamen
Paragraph 166 - In Osborn's own words "for the supply of water to the whole of the land". This is exactly why the water supply agreement was unlawful, I owned some of the land. This was the very basis for the fraud and Osborn knew it. In addition the agreement was for the supply of water to the "Boundary" of the land and did not provide for internal distribution or reticulation [see Water Authority Minute of 10th April 1986]
Paragraph 167 - I made no such submission. This is a self serving fabrication. My submission was that the agreement and the water supply were "unlawful" not "potable".
Paragraph 168 - So now Osborn's a water engineer. The fact is that the Water Authority could not provide water at sufficient pressure and the supply from the Water Authority was a trickle supply to the header tanks on the far corner of the land, particularly at night and the demand flow to the subdivision was from the far corner.
Paragraph 169 - Osborn and his "potable" supply. My letter of August 1987 clearly and unequivocally set out my knowledge of an "unlawful" water supply. This letter contains no evidence of anything to do with the 1978 water supply because the detail of that supply was concealed from me until August 1995.
Paragraph 170 - More of the same.
Paragraph 171 - More of the same, refer gravamen
Paragraph 173 - Certainly no evidence of concealment of the facts as fabricated by Osborn.
Paragraph 174 - The grounds for strike-out included an admission as to the fact of the "causes of action" - No evidence was required, the question before Osborn was when I knew of the fact.
Paragraph 175 - "if however, I am wrong....." If ??? How wrong can one be? hmm... In addition, if this is the clincher, why bother with the things he might be wrong about? This paragraph depends upon Osborn's misrepresentations as to the gravamen.
Paragraph 176 - The "subject matter" of the 1995 proceeding and the "subject matter" of the 2005 proceeding could not be more exclusive of each other. In the 1995 proceeding it was alleged that the 1978 water supply did exist and in the 2005 proceeding that it did not exist. One couldn't get more mutually exclusive if one tried. The 1995 proceeding was based on the fraudulent misrepresentations of the Council and the 2005 proceeding on those things concealed by those fraudulent representations.
Paragraph 177 - More of the same, refer gravamen
Paragraph 178 - More of the same, potable, non-potable, this paragraph depends upon Osborn's misrepresentations as to the planning permit and the gravamen.
Paragraph 179 & 180 - See releases.
Paragraph 181 - Justice Osborn's summary with respect to Woodleigh Heights
a) The subject of the conditions of the planning permit was not in dispute between the parties. In the absence of relevant submissions from the Council and Water Authority, Justice Osborn raised this question without notice and basically ambushed me. He then said that the question of the planning permit would not be determined at this time [see transcript at star]. He then concluded as set out in the planning permit page. His findings fly in the face of the law and the facts before him. In addition both the Council and Water Authority had given written evidence to the contrary to the Planning Appeals Tribunal [second star]. Had the lawyers for the Council and Water Authority tried to introduce this they would have been estopped from doing so. Justice Osborn said that the question of the planning permit would not be determined but he went on to do so in the complete absence of submissions.
(b) Irrelevant this reticulated supply was specifically approved by the Council for the purpose of its planning scheme/policy and for the issue of building permits. [see background section here]
(c) Precisely my "cause of action", the 1978 water supply was not reticulated. If Justice Osborn intended to say "whether or not" then there is ample evidence that it was not reticulated, however that was not the question before Osborn. The question was when I knew it was not reticulated. [see causes of action]
In addition there was no need for such evidence before Justice Osborn. The Council and Water Board based their strike-out application on the premise that the "cause of action" was known too long ago and had been openly disclosed by the Council and Water Authority. These things include an admission as to the predicating facts of the "cause of action".
(d) The "potable" water supply was nothing more than an unlawful water supply provided fraudulently. Neither I nor WHRD were entitled to it. Justice Osborn's Reasons depended upon his misrepresentations as to the 1982 supply. [see gravamen]
(e) The 1995 Woodleigh Heights proceeding was allowed to proceed at that time because the defendants had, until August 1995, fraudulently concealed the fact that the 1978 water supply was a water supply approved for the purpose of the Council's planning scheme. This fact was also concealed from the Minister for Water and the Minister for Local Government at the time of the Ministerial inquiries [see para 4 of writ in 1995 proceeding]. Neither the Council, Water Authority or Justice Osborn can now deny this fraudulent concealment. [complete writ here]
Subsequent to August 1995 and during the entire period the 1995 proceeding remained on foot, the fact that the 1978 reticulated water supply did not exist was concealed. [see concealment]
(f) This statement by Justice Osborn is dependant upon his misrepresentation as to the gravamen of the 1995 proceeding. The 1995 Woodleigh Heights proceeding clearly alleged that the water mains were present. That they were not present is manifestly a new fact in relation to the gravamen of the previous proceeding compared to the 2005 proceeding. This assertion by Osborn again depends upon his misrepresentations as to the previous gravamen. The Council and Water Authority admit to the fact that the Reticulation Plan was shown to me at the time of the Practice Court Hearing. [see Council's Outline at para 86] [complete Outline here]
(g) This statement by Justice Osborn is dependant upon his misrepresentation as to the gravamen of the 1995 proceeding. [see gravamen]
(h) This statement by Justice Osborn is dependant upon his misrepresentation as to the gravamen of the 1995 proceeding. [see gravamen]
Osborn's Reasons were but a house of cards with the joker supporting the lot. |
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