"The principle of public justice and open courts is designed constantly to submit the judges themselves to public scrutiny. Incompetent, dilatory, ill-tempered, prejudiced judges may deserve to be exposed so long as the object is truth not just entertainment at the behest of a disgruntled litigant whose views are given currency at the expense of a judge who cannot effectively answer back." The Hon Justice Michael Kirby AC CMG - ATTACKS ON JUDGES - A UNIVERSAL PHENOMENON |
Although laudable, the sentiments expressed by Justice Kirby fall a little short. Justice Kirby mentioned four undesirable qualities of Judges. He did not mention the fifth and most undesirable quality, dishonesty. I say that such Judges, particularly prejudiced and dishonest ones, ought and must be exposed, even if exposed by a disgruntled litigant. I am one such disgruntled litigant.
I also extend the sentiments expressed by Justice Kirby to include dishonest barristers and solicitors.
The 2005 Strike-out proceeding
The Appeal before Justice Osborn
Background
As outlined on The Story page, the Kyneton Council and Water Authority (now Macedon Ranges Shire Council and Coliban Water) conspired with one another and others for the purpose of the preventing the sale of my land in the Woodleigh Heights subdivision to anyone other than the timeshare company WHRD.
This conspiracy depended on concealing the fact that the Council had, in 1978, approved a "reticulated water supply" which was common property on the cluster subdivision and should have been available to all people (the 1978 water supply).
The conspiracy also depended upon the Council and Water Authority falsely representing that the water supply provided by the Water Authority to WHRD in 1982 was a lawful water supply provided pursuant to a lawful and enforceable "Water Supply Agreement" (the 1982 water supply).
The Council and Water Authority concealed the fact that the 1978 water supply was an approved water supply for the purpose of building permits and this concealment was the basis of the 1995 Woodleigh Heights proceeding, which was settled by supposed mediation in 1999.
Also, as outlined on the Tylden Rd page, the Council and Water Authority had required me to pay for roads and services to the Tylden Rd subdivision by unlawfully accepting and calling up my bank guarantees. In 1988, I issued proceedings in the County Court to recover this money. This was settled by agreement, where the Council and Water Authority effectively returned my money with interest, but no damages were paid.
In late August 2000, I discovered the true genesis of the fraud – a method to unlawfully "assist" the developer of both subdivisions. The Council had unlawfully sealed the plans of both the Woodleigh Heights and Tylden Rd subdivisions without the services being completed, nor any lawful way of compelling the services to be completed. This facilitated avoiding the "effect" of section 9 of the Sale of Land Act 1962.
The Council and Water Authority had then cooperated in a coordinated manner to protect themselves from discovery of their unlawful dealings.
In 2005, I issued Supreme Court proceedings against the Council and Water Authority in relation to both the Woodleigh Heights and Tylden Rd subdivisions. These new proceedings were based on facts that had been concealed by omission and/or perjury in the previous proceedings. [see overt concealment Tylden Rd here and Woodleigh Heights here]
The lawyers for the Council and Water Authority applied to have my proceeding struck out before trial. The grounds for that application were completely fallacious. The hearing came on before Master Efthim and as a consequence of having been comprehensively misled, he handed down Reasons for Decision which demonstrated that he did not adjudicate on the "causes of action" set out in the Statement of Claim but instead adjudicated upon the fabrications of the lawyers for the Council and Water Authority.
I appealed and the Appeal came on before Justice Osborn.
The misrepresentations before Justice Osborn
Dixon, Delany and Ahern repeated the misrepresentations which they had made to Master Efthim. [see Lying Lawyers Part Two page]
Greg Garde QC and Burchell repeated the written Outline which they had made to Master Efthim. [see details here]
Of particular note, at page 197 of the transcript, the Water Authority's QC, Mr. Garde, also repeated the misleading representations he previously made to the Planning Appeals Tribunal when he said:
“There was under the provisions of the Act a legally valid water agreement in existence between the board and the development company and that under the water agreement, the development company owned and operated the water supply reticulation system within the cluster subdivision.” (my emphasis) [see also teaser page]
In reply I set out the true "causes of action" and substantially detailed the misrepresentations which had been made by Garde, Delany and Middleton.
My submissions were principally made in two written submissions entitled "Plaintiffs' Appeal Submissions" part 1 and Part 2.
Part 1 explicitly set out the true causes of action, and also the fact that Master Efthim had been misled. Part 2 the fact that Mr. Greg Garde QC had also misled the Planning Appeals Tribunal by representing in his written submission [para 4.0] that the "Water Supply Agreement" was an enforceable legal agreement. [My submissions part 1 here, part 2 here - these are large documents]
Transcript for day 1 here and day 2 here.
Even if Master Efthim had been carelessly misled, the fact that he had been misled was known to the lawyers and Justice Osborn after my submission. On the first 8 or ten pages of part 1 of my submission I substantially outline the misrepresentations made to Master Efthim and, by then, repeated before Justice Osborn. In addition at pages 25 to 30 of part 1 of my submissions I provided a complete analysis of the relevant legislation including how 2-lot plans do not facilitate avoidance of section 9 of the Sale of Land Act and a description of avoiding the "effect' of section 9.
After my submissions Justice Osborn was squarely fixed with knowledge that the Lawyers had misled Master Efthim and himself. In addition, even if the lawyers had carelessly misled Master Efthim and Osborn the lawyers and Osborn were fixed with knowledge of the fact that the lawyers representations were misrepresentations.
Justice Osborn versus the facts
Justice Osborn could not confirm the Reasons for Decision of Master Efthim and he did not. Justice Osborn could not find against me based upon the submissions made by the lawyers for the Council and Water Authority and he did not. After my submissions, he was well aware of the misrepresentations made by the lawyers to Master Efthim and himself.
There are grounds for a belief that Osborn was prejudiced.
Justice Osborn determined to compromise justice itself rather than compromise the "friends of the court" that appeared before Master Efthim.
To find against me, Justice Osborn instead introduced, without notice, arguments of his own and then published Reasons for Judgment which substantially rely upon those arguments, and which contain reasons substantially wrong and which fly in the face of the law and the facts. The effect of this was to ignore, deny, conceal and/or make wrong the fact that the Council and Water Authority had acted fraudulently and the fact that they and their lawyers had consistently misled the Courts including the Court of Master Efthim.
The apparent scheme and purpose of Justice Osborn's Reasons appears to be to ignore, deny, conceal and/or make wrong:
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In the case of Tylden Rd, those things related to the Notice of Requirement referred to in the Council's Minutes of 20th February 1980 and related to the 18-lot plan of subdivision for Tylden Rd.
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In the case of Woodleigh Heights, the facts related to the 1978 water supply and the fact that the 1982 water supply and Water Supply Agreement were unlawful in all respects.
- The fact that the lawyers misled Master Efthim and himself.
The Reasons for Judgment published by Justice Osborne are not capable of being grounded on judicial reason.
In relation to Woodleigh Heights the scheme of Justice Osborn's Reasons for Judgment is indistinguishable from the scheme of the fraud by the Council and Water Authority:
- The scheme of the fraud was to:
- conceal the facts and circumstances of the 1978 Water Supply
- fraudulently represent that the 1982 "Water Supply Agreement" was a lawful and enforceable agreement which gave the timeshare company ownership and control of the water supply and reticulation system within the cluster subdivision.
- The scheme of Justice Osborn's Reasons for Judgment is:
It is not possible that either the Council, the Water Authority or Justice Osborn held a reasoned belief as to the truth of their respective respresentations.
Full details are contained in the remaining Osborn pages and elsewhere on this website.
Justice Osborn's Reasons for Judgment are so comprehensively and cohesively wrong You be the judge. |
Justice Osborn's full Reasons for Judgment [also available on austlii database]
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