100402-Vcat President Ross j -Re Asbestos - Ex Gratia Payment- Ultra Vires-etc

8/9/2019 100402-Vcat President Ross j -Re Asbestos - Ex Gratia Payment- Ultra Vires-etc

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p1 2-4-2010INSPECTOR-RIKATI on VCAT as a STAR CHAMBER & KANGAROO COURT-No1

A Book on DVD about the injustice upon Mr Francis James Colosimo ISBN 978-0-9803712-7-7PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, by fax0011-61-3-94577209 or E-mail [email protected] See also www.schorel-hlavka.com

WITHOUT PREJUDICEHis Honour Ross J, President VCAT [email protected] 2-4-2010.

Cc; * Mr & Mrs Colosimo, 72 Shuter Avenue, Greendale, Vic 3341 [email protected]* Deputy Registrar Ashe Whitaker VCAT Guardian List) [email protected]* Mr Brendan Hoysted [email protected]* Her Honour Harbison J C/o [email protected]* VCAT Senior Member Ms Preuss. C/o [email protected]* Victorian Government Solicitors Office, 107262810

C/o Monika Pekevska [email protected]* Director Victorian Legal Aid

C/o Mr Joel Townsend, Human Rights and Civil Law ServicesGPO Box 4380 Melbourne, Vic3001, Phone 1800 677 402,Email; C/o [email protected]

* Maddocks Lawyers (for Moorabool Shire Council) (Ref MYM:KJM:5285015Email [email protected]

* Moorabool Shire Council Councillors [email protected] Michael Tudball [email protected] Allan Comrie Cr Pat Griffin Cr Pat Toohey (mayor) Cr Tom Sullivan20Cr Russell Hendry Cr Philip Flack and/or any other councillor

* Mr Errol Higgins22 Bridge St., Morisset NSW 2264, or by phone on (02) 4970 5101.

Email; "Errol Higgins" [email protected]* MELTON MOORABOOL LEADER [email protected] Editor. A Jefferson25

.

Ref; G54449/00 (including V2/2007 & P194/2007 and other related proceedings) Mr Francis JamesColosimo Re -VCAT President ROSS J -Re ASBESTOS EX GRATIA Payment ULTRA VIRES-etc .

.

Sir,30As you may be aware I am representing within the meaning of s.62 of the

vcaata1998428 Mr Francis James Colosimo. As you are aware within s.143 of the vcaata Ihave the rights of a solicitor in representing Mr Francis James Colosimo.

.

On Monday 29 March 2010 Mr Francis James Colosimo made known to VCAT Senior Member35 ms Preuss that he had a job offered to him in removing ASBESTOS material. Now the thing isthat Mr Francis James Colosimo due to the ongoing protracted VEXATIOUS litigation has beenunable to work normal hours and now is in such financial mess that he has to take a verydangerous job.

40What however should be realised is that Mr Francis James Colosimo being forced to take on anywork as to try to earn monies to pay bills is clearly forced to do so because of the protractedvexatious litigation and as such in time this will be part of compensation to be claimed againstwho perpetrated this evil against him.


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Mr Francis James Colosimo did ask VCAT Senior member ms Preuss if VCAT could provideabout $100,000.00 in payment as he badly needed money, and while this might be extra ordinaryfor anyone to make such a request where VCAT in my view acted without jurisdiction all alongthen it must accept responsibility for the EMOTIONAL, MENTAL, and FINANCIAL harm is5inflicted upon Mr Francis James Colosimo.

As shown below in the quoted Kirk v Industrial Relations Commission; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) [2010] HCA 1 (3February 2010) case a Tribunal has limited jurisdiction and cannot have a prosecutor to call a10accused to give evidence against himself regardless if the accused agreed with it.

On 27 January 2010 VCAT Senior Member ms Preuss made it very clear that the reason shedidnt on 22 October 2009 order for Mr Brendan Hoysted duty officer of the Office of the PublicAdvocate to file and serve a list of witnesses, etc, is because she (VCAT Senior member Ms15Preuss) had taken over the case. Yet, on 29 March 2010 VCAT Senior Member Ms Preuss being

again confronted with submission to disqualify herself.

Some of the listed correspondences (written submissions) (BELOW) underline that VCATSenior Member Ms Preuss was requested time and time again to disqualify herself for a range of20issues but disregard to do so and in fact as shown on 29 March 2010 didnt seem to evenunderstand how to formally deal with matters. The following correspondence are some toindicate the various legal objections made which VCAT Senior Member Ms Preuss ignored timeand time again.

25090903-G54449-00-Ms Preuss-DISQUALIFICATION-etc

090916-G54449-00-Ms Preuss-BIAS-etc090924-G54449-00-Ms Preuss-FRATERNIZING-etc090925-G54449-00-Ms Preuss-reminder-etc091126-G54449-00-Ms Preuss-EVIDENCE-etc30091020-G54449-00-Ms Preuss-OBJECTION-etc091214-G54449-00-Ms Preuss-NO CASE TO ANSWER-etc100111-G54449-00-Ms Preuss-Dates -disqualification-etc100119-G54449-00-Ms Preuss-ISSUES OF EVIDENCE-etc100125-G54449-00-Ms Preuss-Mr F. J. Colosimo NOT NOTIFIED-etc35100127-G54449-00-Ms Preuss-Re DRAFT NOTICE OF ISSUES-etc (1)

100128-G54449-00-Ms Preuss-Recap 27-1-2010 hearing-etc100202-G54449-00-Ms Preuss-Re s62 representation-etc100203-G54449-00-Ms Preuss-Re cooperation-etc100207-G54449-00-Ms Preuss-Re Wilful contempt-etc40100215-G54449-00-Ms Preuss-Re NOTICE OF CONSTITUTIONAL MATTERS-etc100217-G54449-00-Ms Preuss-Re My position within s62 VCAATA-etc100223-G54449-00-Ms Preuss -TRANSCRIPTS-etc100315-G54449-00-Ms Preuss -Lack of power to remove-etc100325-G54449-00-Ms Preuss -UNDER PROTEST-etc45100326-(No.2)-G54449-00-Ms Preuss -NO LEGAL STANDING-BIAS-COMPETENCE-etc100326-G54449-00-Ms Preuss -BIAS-etc

100328-G54449-00-Ms Preuss -60A & 80-etc


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VCAT Senior Member Ms Preuss on 29 March 2010 announced that she herself had calledexpert witnesses without giving any prior notice about this. It is my view highly inappropriate fora judicial officer to act also as prosecutor and then secretly call in expert witnesses as to preventmyself representing Mr Francis James Colosimo to have sufficient advanced notification for this5as to prepare for cross-examination.

QUOTEVICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL ACT 1998

- SECT 10210Evidence

102. Evidence(1) The Tribunal must allow a party a reasonable opportunity-

(a) to call or give evidence; and15

(b) to examine, cross-examine or re-examine witnesses; and

(c) to make submissions to the Tribunal.

20(2) Despite sub-section (1), the Tribunal may refuse to allow a party to call evidence on a matter if the Tribunal

considers that there is already sufficient evidence of that matter before the Tribunal.

(3) Evidence in a proceeding-25

(a) may be given orally or in writing; and

(b) if the Tribunal requires, must be given on oath or by affidavitv.

(4) A member of the Tribunal may administer or cause to be administered an oath or take or cause to be taken30an affirmation for the purpose of taking and receiving evidence at a hearing.

END QUOTE

Again;QUOTE

102. Evidence35(1) The Tribunal must allow a party a reasonable opportunity-

END QUOTE

In my view the ability to prepare for cross-examination must be included in the above.

40Further more the transcript of the 29 March 2010 proceedings will show that VCAT Member MsPreuss made a ruling that she no longer could deal with any issue of orders unless the s.108

reconstitution of the tribunal had been dealt with but in the meantime she could still hear matters.

In my view VCAT Senior Member Ms Preuss could not ever conduct any further matters as the45moment any submission for BIAS, OBJECTION TO JURISDICTION, etc is made then thisstop any further hearing of matters and if such is made prior to commencement of a hearing thenthe hearing cannot proceed unless any submissions in that regard are defeated.

What was even more extra ordinary was that VCAT Senior Member Ms Preuss then requested50Mr Francis James Colosimo to give evidence. As VCAT Senior member ms Preuss was the

prosecutor (by her own claims) then clearly Kirk v Industrial Relations Commission; Kirk


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Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) [2010]

HCA 1 (3 February 2010) applies that regardless that Mr Francis James Colosimo and myselfconsented to this it was and remained invalid in law because of this.As such for all purposes and intent there was no evidence on 29 March 2010.

5More over VCAT Senior Member Ms Preuss had neither any authority to dismiss the applicationfor the Guardianship List on basis of the evidence given as she already had made clear not to

have any judicial powers to issue orders because of the pending s.108 hearing.

The same is with Her Honour Harbison J on 16 march 2009, when Her Honour Harbison J issued10orders to PERMANENTLY STAY the CONTEMPT proceedings even so (albeit this HerHonour Harbison J herself never was aware of) had never formally charged Mr Francis JamesColosimo with any CONTEMPT. As such holding 6 hearings without being formally chargedhardly shows a proper conduct of litigation.More over as the Prosecutor applied to have the matter withdrawn, which I opposed on legal15grounds, then Her Honour Harbison j instead should have invoked s.75, albeit not seeking toindicate Her Honour Harbison J had any jurisdiction as I merely use this if it were to have been

that her honour Harbison J had jurisdiction to be the proper course to follow where it was clearthat the entire litigation was based upon a concocted version of events.

20QUOTE VCAATA1998428

75Summary dismissal of unjustified proceedings

(1) At any time, the Tribunal may make an order summarily dismissing or striking outall, or any part, of a proceeding that, in its opinion

(a) is frivolous, vexatious, misconceived or lacking in substance; or25

(b) is otherwise an abuse of process.(2) If the Tribunal makes an order under subsection (1), it may order the applicant to

pay any other party an amount to compensate that party for any costs, expenses,loss, inconvenience and embarrassment resulting from the proceeding.

(3) The Tribunal's power to make an order under subsection (1) or (2) is exercisable30by

(a) the Tribunal as constituted for the proceeding; or

(b) a presidential member; or

(c) a member who is a legal practitioner.

(4) An order under subsection (1) or (2) may be made on the application of a party or35on the Tribunal's own initiative.

(5) For the purposes of this Act, the question whether or not an application isfrivolous, vexatious, misconceived or lacking in substance or is otherwise an abuseof process is a question of law.

END QUOTE VCAATA199842840

In my view Her Honour Harbison J faced by Maddocks lawyers solicitors for Moorabool ShireCouncil opposing orders of cost, then couldnt issue orders for cost to be reserved for Moorabool

Shire Council as this also defies s.74 provisions.


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Where solicitors are protracting VEXATIOUS litigation then where the application is sought tobe withdrawn it underlines that indeed the application was VEXATIOUS and any loss of incomeof the person against whom the CONTEMPT application was should then have this also includedin cost. What we now have is that Mr Francis James Colosimo, of senior age, now is left no5alternative but to obtain employment in a highly dangerous work and this because VCAT allalong disregarded to protect him against the protracted VEXATIOUS litigation and in fact also

compounded to this.

With the reason of judgment of VCAT member (architect and lawyer) Mr Philip Martin to rule10about a second dwelling even so no charge existed in regard of a second dwellingThen clear VCAT Senior Member Mr Philip Martin having ignored the OBJECTION TO

JURISDICTION already and so acting without jurisdiction for this also must also have beenconsidered to exceed any jurisdiction (not that it is conceded he invoked jurisdiction) by makinga ruling what was not supported by the evidence that was before him either. Again within the15 Kirk v Industrial Relations Commission; Kirk Group Holdings Pty Ltd v WorkCover

Authority of New South Wales (Inspector Childs) [2010] HCA 1 (3 February 2010) ruling

even if ordinary VCAT had purportedly had jurisdiction it would not have had any longer whereit was dealing with a NON-EXISTING charge, etc.

20With the Graves 29 October 2008 orders we have that someone who is a judicial officer dealingwith the Guardianship List supposedly having to care for those who are generally deemed to bein certain ill health to care for themselves then goes about disregarding entirely what isappropriate and escalate the problems as I view VCAT Member Graves did. So if both VCATMember Graves as well as the reviewing officer VCAT Senior Member Ms Preuss are25compounding the harm then what use indeed is the Guardianship List?

Anyone who were to consider the transcripts of 2 September 2009 and the 22 October 2009might just become aware that Ms Preuss didnt want me to be appointed as Enduring Power ofAttorney, at least that is how it came across to me, and on 2 September 2009 specifically30adjourned matters for that purpose even so I had personally no interest for being so appointedand neither have asked to be so. When Mr Wells counsel appearing for the State TrusteesLimited on 22 October 2009 then commenced to cross-examine Mr Francis James Colosimo,albeit without that VCAT Senior member Ms Preuss had allowed me as Mr Francis JamesColosimo to first examine-in-chief Mr Francis James Colosimo, then Mr Wells sought to elicit35that Mr Francis James Colosimo actually was conducting himself on the legal issues as Iunderstood it from his manner of cross-examination because of what I had somehow caused him

to do. Not only did Mr Francis James Colosimo deny this but finally when I was able to examenMr Francis James Colosimo he made known that he pursued constitutional issues years before heeven knew about me. As such VCAT Senior Member Ms Preuss was dealing with matters that40were in her mind rather then upon the evidence that was actually before her. In my view this is avery serious matter where a VCAT Senior Member who is to review a case then goes about insuch horrendous manner to inflict further uncalled EMOTIONAL, MENTAL, andFINANCIAL harm upon Mr Francis James Colosimo.

45Mr Francis James Colosimo instead of enjoying his twilight years in peace and tranquillity withhis family now was TERRORISED by the very people who were to be protecting him and

ensure his rights were catered for.


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Since 1982 I have been conducting a special lifeline service under the motto MAY JUSTICEALWAYS PREVAIL in regard of people contemplating suicide/murder I have had ample ofpeople so to say out of their wits and this because the way courts/tribunals rob them of their legalrights, etc. due to the confidentiality and nature of these matters I am ordinary not permitted to5disclose details and neither would contemplate doing so without the consent of each personconcerned. However I understand in general terms that Mr Francis James Colosimo is not the

only person who has so to say suffered at the hands of VCAT and in particularly also theGuardianship List and so also involving the office of the Public Advocate but that there appearsto me to be some modus operandi of so to say systematic abuses upon the rights of those most10vulnerable and I understand State Trustees Limited also has its input in this.

On 27 January 2009 Mr Peter Sier of State Trustees Limited gave me the understanding that inhis view Mr Francis James Colosimo simply refused to comply with legal provisions and thiswas the cause of his problems. I then made clear that I didnt see it this way at all as for so far I15could elicit he had acted all along lawfully. Yet, on 2 September 2009 VCAT Senior Member MsPreuss likewise accused Mr Francis James Colosimo of this and as such there appears to be some

kind of mutual understanding albeit without a shred of evidence that a person is mentally ill andneeds have his affairs administrated and as Mr Peter Sier of State Trustees Limited in his 21January 2009 correspondence to VCAT proved to do was to concoct that Her Honour Harbison J20had found that on every element of the CONTEMPT charge against Mr Francis James Colosimohad been found proven, this even so I discovered later from the transcripts of the 6 purportedCONTEMPT hearings that Her Honour Harbison J never even had formally charged Mr FrancisJames Colosimo. Now if this is to reflect how those who are subjected to Guardianship Listorders are being cared for then I view for this alone it would be better to close down VCAT and25leave it up to the courts to conduct appropriate legal proceedings as is constitutionally required.

If it wasnt for my investigative nature I doubt any other person who was to haverepresented Mr Francis James Colosimo would ever have detected the numerous issued Iwas able to detect.30

I view it to be utter scandalous that the numerous problems I detected all is relating to the oneperson Mr Francis James Colosimo! A man who did not legal wrong in erecting his shed but hadnearly suffered the ultimate price with paying for his life on two occasions and yet still there wasabsolutely no remorse by anyone one who had acted unlawfully against him. Indeed, their own35self interest seemed to be more important to maintain as I view it this kind of TERRORISM andthis includes Moorabool Shire Council, Maddocks Lawyers, the office of the Public Advocate,

State Trustees Limited and VCAT in separate sections and as a whole.What indeed is the value of having had His Honour Bell J of the Supreme Court of Victoriabeing the President of VCAT when under his leadership this escalated further?40What indeed is the value of having you as a President where still this continues?

As the Attorney-General proved that it refuses to intervene because it claims it is a matter beforethe courts even so it is not be fore a court but a tribunal and without legal jurisdiction.What a sheer and utter nonsense where the President of VCAT alerted formally by me simply45totally disregarded to act appropriately as to stop this kind of abuse and misuse of legalproceedings.


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VCAT standing for VULTURES, CROOKS and TERRORISM where the rights andentitlements of Mr Francis James Colosimo were about totally disregarded.

How can any judge who is after all a member of the Bar of the Supreme Court of Victoria hold to5supervise VCAT when all this goes on unchecked regardless of the complaints filed?

Who indeed is there to protect the vulnerable when the very Guardianship List VCAT Membersproved to do anything but to do so in regard of Mr Francis James Colosimo?

10What kind of system is operating within VCAT where a VCAT member and it must be statedVCAT Senior Member goes out on a limb to get me out of representing Mr Francis JamesColosimo because it is so to say to close to her comfort that I expose the rot?

Surely it never should have occurred in the first place and if anything VCAT (Senior) Members15

should therefore have applauded me to stand up and seek to protect an innocent man rather thento play along their dirty game to crucify this man?

In my view, what appears to me heartless conduct by so many must be stopped and as thepresident of VCAT I view you cannot afford to allow it to go on for even one day longer and20forget about you having time of to celebrate Easter while others are suffering because of lack ofproper conduct within VCAT!

While it may be argued that you are newly appointed and so may not know what is going on in

my view this is absolutely no excuse.25

I give you an example:When I was appointed to manage a factory I then went down to the factory and called all workerstogether and asked them to advise me of whatever they held was wrong within the factory and Iwould call them into my office so they could explain to me all their complaints and suggestions30so we could together get the factory running better and by this secure their jobs and my own job.And on a fortnightly basis I would have a meeting with the workers and because of this gained aconsiderable knowledge and was able to improve the factory and so the production in numerousareas. This is what you get when you are so to say a hands on supervisor and not one who

perhaps hold others are not worth to communicate with.35

In my view a President of VCAT must not just be there for the name of being a Presidentbut must be a hand on supervisor who is aware how VCAT operates and not just wait untilsomeone complaints and then even might just ignore it.

40What was the use of the 2009 VCAT President Review where despite my elaboratesubmission nothing came from setting up a system to stop this kind of rot I had set out wasgoing on?


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In my view as president of VCAT you shouldnt just know about the Kirk v Industrial Relations Commission; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South

Wales (Inspector Childs) [2010] HCA 1 (3 February 2010) decision but have this implementedthe very day you were appointed but in my view as it proved on 20 March 2010 VCAT SeniorMember Ms Preuss simply didnt seem to have a clue what really proper legal procedures are5about!

And this despite that I read out the following:QUOTE

When a party to proceedings makes an OBJECTION TO JURISDICTION as well as for10the judicial officer to disqualify herself as well as NO CASE TO ANSWER and appearingUNDER PROTEST as well as submit BIAS then the following applies..

UNDER PROTESTWith the attendance UNDER PROTEST the party has indicated to appear without giving15up any of his legal rights governing any objections. As such appearance must not be seen asto acknowledge jurisdiction, etc..

NO CASE TO ANSWERIf and only if the OBJECTCTION TO JURISDICTION as well as the BIAS20submissions fail then the NO CASE TO ANSWER is an issue that the judicial officermust consider that anything stated/produced by the respondent/defendant/accused cannot betaken against this person as evidence, neither anything stated/produced up to the point thatthe prosecutor/applicant completed his case and the respondent/defendant/accusedcommences his response to the case. Hence, any order or purported order to produce any25material cannot be used against the respondent/ defendant/accused as to purportedly provea case against him. Hence, any s.80 Guardianship and Administration Act order for therespondent/defendant/accused to produce details/information cannot be resulting in toprovide evidence against him and/or to assist the Applicant in the application for

Administration/Guardianship orders.30.

BIASThe first issue to be dealt with by the judicial officer is the issue of BIAS as if the judicialofficer can be shown to have been or appearing to a FAIR MINDED PERSON to be BIASthen the judicial officer must disqualify herself of the proceedings.35The judicial officer must first of all hear out all and any submissions of the party thatsubmit that the judicial officer is BIAS and then must formally consider this and respond byway of REASON OF JUDGMENT and ORDERS as to show LEGAL JUSTIFICATION asto why the judicial officer should or shouldnt disqualify herself. As such the REASON OFJUDGMENT must set out the reasons the party submitted that a FAIR MINDED PERSON40

may hold that the judicial officer was or appear to be BIAS. It is therefore not needed forthe party to prove BIAS as the appearance of BIAS is sufficient to disqualify the judicialofficer..If the judicial officer fails to disqualify herself then the party can submit that the judicial45officer disqualify herself for BIAS or appearing to a FAIR MINDED PERSON to be BIASand then submitting why the judicial officer appeared to be BIAS in failing to disqualifyherself. For example, if the judicial officer merely stated to dismiss the submission of BIASwithout giving sufficient consideration to the issues raised by the objector (the partysubmitting BIAS by the judicial officer) then the judicial officer must disqualify herself if50indeed she failed to consider each and every issue the objecting party submitted. If the


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judicial officer likewise denies the objecting party sufficient and appropriate opportunity tomake relevant submissions then that also in itself can be considered BIAS or theappearance of BIAS. It should be understood that any objection in regard of bias whenmade (even prior to the hearing in writing) must be addressed by the judicial officer and ifthe judicial officer at any time during a previous hearing failed to formally dismiss such5made SUBMISSION of BIAS then the judicial officer must DISQUALIFY HERSELF ashaving been or appearing to be BIAS has already been proven by the fact the judicialofficer failed to then formally deal with this issue. Again, it is not sufficient for the judicialofficer to assume she is not BIAS or APPEARING TO BE BIAS as she must at eachhearing that such an submission (in writing or orally) was made deal with this issue first.10

OBJECTION TO JURISDICTIONIf the submission of BIAS and/or APPEARANCE OF BIAS is formally dismissed then andonly then can the judicial officer deal with an OBJECTION TO JURISDICTION. Thejudicial officer can only invoke JURISDICTION if she formally by way of REASON OF15JUDGMENT and formal orders dismissed the OBJECTION TO JURISDICTION. She canonly do so having first allowed the Prosecutor/Applicant to make out his case why there isjurisdiction and for the objecting party to add any further issues upon which theProsecutor/Applicant may respond. It should be understood that the task is not for theobjecting party to disprove jurisdiction as no such legal duty exist. It is for the20Prosecutor/Applicant to prove jurisdiction. The judicial officer can only deal with anOBJECTION TO JURISDICTION upon consideration of all details/information of theparties and address each issue in a REASON OF JUDGMENT and ORDERS as to dismissor uphold the OBJECTION TO JURISDICTION.It is therefore not good enough for the Prosecutor/Applicant to say that there is legislation25and so there is jurisdiction because the legislation itself is meaningless unless theProsecutor/Applicant can show that the legislation is legally applicable. For example theProsecutor/Applicant must canvas also any reasons the objecting party may have notedmust defeat each and every ground relied upon by the objecting party as to why there is no

JURISDICTION and the judicial officer cannot assume jurisdiction merely because she has30 always dealt with cases because the judicial officer is not there to present evidence or tohave an input in the case for the Prosecutor/Applicant but must deal with the matterimpartially, as failing to do so she would be BIAS or APPEAR TO BE BIAS.To give an example: The Supreme Court of Victoria made clear that a judicial officer ofVCAT cannot in CONTEMPT proceedings order suspended sentence because the vcaata35doesnt allow for any appeal in regard of a suspended sentence. Hence it struck down thesuspended sentence order for this. As such any OBJECTION TO JURISDICTIONregarding a suspended sentence would have been justified to be made even so the judicialofficer may belief that she has that power, as the prosecutor must prove such powersexist. Such OBJECTION TO JURISDICTION can be made at any time by the party even at40

the time the judicial officer handed down her orders for a suspended sentence!.The judicial officer cannot deal with an OBJECTION TO JURISDICTION where thematter is beyond her judicial powers. For example where it involves a court or tribunal thatcannot invoke federal jurisdiction and one or more issues regarding the OBJECTION TO45JURISDICTION relates to federal issues then the judicial officer must make known to theProsecutor/Applicant that all proceedings are at a hold and she can only adjourn mattersuntil or unless the Prosecutor/Applicant can obtain an order of a Court of law that caninvoke federal jurisdiction to deal with the relevant issues. As such the onus is upon theProsecutor/Applicant to prove JURISDICTION and if this means to take the matter before50the Supreme Court of Victoria and/or the High Court of Australia then the onus is upon the


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Prosecutor/Applicant to do so and failing this the judicial officer must uphold theOBJECTION TO JURISDICTION in that regard and dismiss any charges/application.Again, the judicial officer cannot merely assume jurisdiction as unless an appropriateCourt of law that can invoke jurisdiction can make a formal ruling to that there is for thejudicial officer jurisdiction all and any proceedings are to a halt and any orders issued5without formally having invoked JURISDICTION are without legal force.

END QUOTE

I am not aware that so to say there are training wheels for a President of VCAT to so to say notappropriately supervising what goes on within VCAT until he finally got his act together.10Hence, I view that as you were claimed to be the newly appointed President of VCAT then fromthat moment it should have been your business to know what goes on and how to address issuesas I indicated when I was appointed to manage a factory I did it as the first thing to check outwhat were problems and possible problems.

15On 29 March 2010 VCAT Senior Member ms Preuss:

Failed from onset to deal with the issue of disqualification of BIAS. Failed to deal with the issue of OBJECTION TO JURISDICTION Failed to invoke jurisdiction

Failed to show legal justification why at all she should continue with the VEXATIOUS20litigation let alone pursue my person to represent Mr Francis James Colosimo.

Failed to give prior notification of having called herself expert witnesses

Failed to have ruled on my various objections for those expert witnesses to have theirevidence considered as evidence

Failed to deal with the issue of the request of her Honour Harbison J of 12 June 2008 if Mr25Francis James Colosimo acted WILLFULLY in CONTEMPT

Failed to understand what was legally applicable and what was not

Failed to be aware that legal principles of courts are also applicable to VCAT Failed to adjourn matters when it finally drew to her that I pursued her to disqualify herself.

Failed to ensure that before conducting any hearing further she provided me with the files30as directed during the 27 January 2009 hearings so I could prepare for any defence

Failed to provide me with a copy of the 27 January 2009 orders and also any correctedversion where the original sealed orders were incorrectly drafted.

Failed to adhere to her own decision that I would first be allowed to examine-in-chief MrFrancis James Colosimo during any giving of evidence by Mr Francis James Colosimo35

Failed to understand that as she had previously declared that she had taken over theApplication from the office of the Public Advocate as then both judicial officer as well asprosecutor there was a conflict of interest.

Failed to understand that as she had previously declared on 27 January 2010 that she hadtaken over the Application from the Office of the Public Advocate as then both judicial40officer as well as prosecutor she could not have Mr Francis James Colosimo givingevidence as she pursued and obtained.

Failed to understand that Application as she had previously declared on 27 January 2010that she had taken over the from the Office of the Public Advocate as then both judicialofficer as well as prosecutor she could not have Mr Francis James Colosimo giving45evidence as she pursued and obtained and conducted herself examination-in-chief of MrFrancis James Colosimo she thereby clearly did as if Mr Francis James Colosimo was herwitness rather then being the victim of the VEXATIOUS application!


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Failed to understand that within the vcaata1998 act there was no legal provision for VCATSenior Member Ms Preuss to take over the Application from the Office of the PublicAdvocate.

Failed to understand that Guardianship List proceedings arising out of a request by HerHonour Harbison J for an investigation as to establishing the conduct of Mr Francis James5Colosimo to have been WILLFUL conduct of CONTEMPT didnt allow any scope for theGuardianship List proceedings then to go outside this is because it would undermine andinterfere with the CONTEMPT procedures.

Failed to understand that the dismissal of the Application was without jurisdiction

Failed to understand that she had to follow proper legal procedures as to providing a10Reason of Judgment and formal orders each time a submission of an objection was maderegarding BIAS, OBJECTION TO JURSIDCTION, etc.

Failed to understand and apply that where as the representative of Mr Francis JamesColosimo I sought to make an objection she should have allowed me to make the objectionand not merely state not to interrupt her as this was in itself a gross violation of proper legal15procedures in particular also where contrary to her earlier ruling that I would be entitled todo an examination-in-chief of Mr Francis James Colosimo she nevertheless denied this andrefused me to state my objection about this.

Failing to understand that it was inappropriate to sear in Mr Francis James Colosimo at thebar table where there were no specific needs for doing so and violated the sanctity of the20bar table.

There were other failures but it should be clear that the list above can be extended withmany other but already ought to indicate far to many issues were questionable at the veryleast.

25As I understood it VCAT Senior Member Ms Preuss couldnt locate you and as such you were soto say MISSING IN ACTION when needed and to me this also is a serious issue as thiscompounded to the problems.

As I submitted to VCAT Senior Member Ms Preuss her adjournment from 27 January 2009 till 230September 2009 was a gross injustice upon Mr Francis James Colosimo and for not legaljustified reasons as the office of the Public Advocate was aware of the pending 27 January 2009review hearing and should have had his act together and it was a gross denial of NATURALJUSTICE to inflict the ongoing protracted VEXATIOUS litigation against him.

35And I could likewise have a long list of errors concerning the 16 march 2009 hearing before HerHonour Harbison J and where the transcript has recorded my various objections and that I

specifically explained to be unprepared because of files not having been provided and that MrFrancis James Colosimo didnt even know if it was a civil or criminal matter. How could hewhere it turned out afterwards that her Honour Harbison J was conducting some 6 CONTEMPT40hearings without having formally charged Mr Francis James Colosimo?

What kind of supervision was His Honour Bell J of the Supreme Court of Victoriaproviding when this kind of rot was going on, I may ask?

45


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And it certainly doesnt get you of the hook either as after all this PERMANENT STAY remainson foot now you are President of VCAT and for what? To continue this elaborate as I viewTERRORISM upon an innocent man?

QUOTE VCAATA19984285

75Summary dismissal of unjustified proceedings

(1) At any time, the Tribunal may make an order summarily dismissing or striking outall, or any part, of a proceeding that, in its opinion

(a) is frivolous, vexatious, misconceived or lacking in substance; or

(b) is otherwise an abuse of process.10

(2) If the Tribunal makes an order under subsection (1), it may order the applicant topay any other party an amount to compensate that party for any costs, expenses,loss, inconvenience and embarrassment resulting from the proceeding.

(3) The Tribunal's power to make an order under subsection (1) or (2) is exercisableby15

(a) the Tribunal as constituted for the proceeding; or

(b) a presidential member; or

(c) a member who is a legal practitioner.20

(4) An order under subsection (1) or (2) may be made on the application of a party oron the Tribunal's own initiative.

(5) For the purposes of this Act, the question whether or not an application isfrivolous, vexatious, misconceived or lacking in substance or is otherwise an abuseof process is a question of law.25

END QUOTE VCAATA1998428

Clearly, in my view, upon the submissions I made on 16 March 2009 Her Honour Harbison Jought to have invoked s.75 and dismissed the litigation instituted by Maddocks Lawyerssolicitors for Moorabool Shire Council for CONTEMPT as being VEXATIOUS and an abuse of30the legal processes!

In my view Her Honour Harbison J as an OFFICER OF THE COURT had an implied

obligation and duty to have matters reported to the authorities and the president for a fullinvestigation but it appears to me Her Honour Harbison J couldnt bother to do so.35

Well as the President of VCAT I hold you are legally accountable what is eventuating under yourwatch and not a single day should go by without you addressing these and numerous other issues,as after all there is no use in having a judge being a President if all the wrongdoings can continueunabated.40

And, what ought to be done is to set up not a formal hearing but a informal meeting (like the kind

I used to do with workers coming to my office without any fear that somehow I would use


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anything they said would be used against them) where the object would be for you to listen towhat is considered by people to be problems as then and only then can you show to be reallyinterested to resolve many of the issues to the best of your ability.

In my view there needs to be a retraining of VCAT (Senior) Members so they at the very least5have some basic understanding about legal issues concerning VCAT proceedings.

It should however kept in mind that Mr Francis James Colosimo now has to do a job inASBESTOS removal so he can earn some income to pay outstanding bills and in the meantimetries to keep the bank of his back from foreclosure because of VCAT having allowed some 1610protracted VEXATIOUS hearings that was made known time and time again prevented him towork to earn an decent income.

No use to say he can sue as he first needs the money to survive and as VCAT from onset itselfwas so to say a major player also in this elaborate INJUSTICE inflicted upon Mr Francis James15Colosimo then it should recognise this and provide a intermedia special funding to Mr Francis

James Colosimo as to show a token of remorse for the uncalled EMOTIONAL, MENTAL, andFINANCIAL harm inflicted upon Mr Francis James Colosimo so far and that continues whilematters remain to be unresolved.

20Hence, as President of VCAT you can now prove that you are not just a formal head of VCATwithout any so to say backbone and intelligence but that you will pursue immediate andappropriate action to at the very least relieve Mr Francis James Colosimo in the interim of hisfinancial difficulties.Do check the 29 March 2010 transcript that Mr Francis James Colosimo made the request for25financial assistance from VCAT and no use to argue about this not being within the scope of

VCAT because it and it alone presided over the ongoing rot ongoing and could have stopped itfrom onset way back in march 2007 but didnt and so I see absolutely no issue in VCAT throughthe State Government or otherwise to provide some from of interim financialcontribution/compensation so at the very least no further there are compounding problems and30Mr Francis James Colosimo is not going to have the bank foreclosing his property because due tothe protracted VEXATIOUS litigation of VCAT he was prevented to earn an income to servicehis bills.

It should be understood that for VCAT to have held VEXATIOUS hearing is a very serious35issue and must not be ignored. It is bad enough when Maddocks Lawyers solicitors for

Moorabool Shire Council filed its 22 January 2007 VEXATIOUS application but it becameworse for VCAT to add to this with its kind of VEXATIOUS hearings.

While State Trustees Limited and the Office of the Public Advocate may both view they are out40of the firing line reality is they are not because in my view they are also liable because of each intheir own way conduct to compound by this the uncalled EMOTIONAL, MENTAL, andFINANCIAL harm inflicted upon Mr Francis James Colosimo.

If everyone is going to wait for the other to so to say show its hand about providing an45interim (EX GRATIA) compensation (even if without admission of liability) then more then


14/64



likely none will and in the meantime Mr Francis James Colosimo will go further down andthen rest assure any ultimate compensation will be to include any further uncalledEMOTIONAL, MENTAL, and FINANCIAL harm inflicted upon Mr Francis JamesColosimo that could have been avoided if just some common decency was shown towardsMr Francis James Colosimo! In the circumstances I see absolutely no problem with you as5president of VCAT to request the State government to immediately provide for such apayment to relief Mr Francis James Colosimo in the interim of some of the stress andFINANCIAL burden.

Obviously as President you ought to declare without any undue delay that all and any VCAT10orders pertaining Mr Francis James Colosimo were without JURISDICTION as to avoid theVCAT member Mr Philip martin orders to remain on foot and be still attempted to be usedagainst Mr Francis James Colosimo as Maddocks Lawyers solicitors for Moorabool ShireCouncil as I understood it on 16 March 2009 made clear they intended still to use. And so theorders of Her Honour Harbison should be addressed by this as I view it is a total absurdity that15Her Honour Harbison J lend herself to still allow this kind of rot to continue against Mr FrancisJames Colosimo.

TAYLOR v. TAYLOR [1979] HCA 38; (1979) 143 CLR 1 (22 August 1979)QUOTE20

Similarly in Commissioner of Police v. Tanos (1958) 98 CLR 383, at p 395, Dixon C.J.and Webb J. said that "it is a deep-rooted principle of the law that before anyone can bepunished or prejudiced in his person or property by any judicial or quasi-judicialproceeding he must be afforded an adequate opportunity of being heard."

END QUOTE25

How can a person be heard of a CONTEMPT charge when no formal charge was made

out?

For what it is worth my wife, whos father was a lawyer, asked me if you were retired (she didnt30mean retired from your mind) for having been appointed as the president of VCAT, and Iexplained to her that I understood her question as to that there was a conflict of interest having asitting judge of the County Court of Victoria, as I understand you are, with an oath of office to beIMPARTIAL then as a so to say persona designata acting for the State government as presidentof VCAT.35

While Tribunals and inferior courts needs to be under supervision it ought to be understood thatthis should be done appropriately. For example I see no problem with a retired judge to bepresident of VCAT as to use his experiences at the bench to guide the process at VCAT but Iview a sitting judge cannot do so because of the CONFLICT OF INTEREST. As I understand40it Deputy President Helen Gibson made known to Mr Francis James Colosimo that she wasbound to comply with legislative provisions where as a sitting judge of a court is only bound forso far this is judicially acceptable because a judge can nullify legislation where it is undesirableto be applied in a case before the court, as happen on a daily basis throughout Australia when thecourts dismiss charges even so the charge was proven but the court holds that in the relevant45circumstances it is better to dismiss the charges. As such NULLIFICATION is alive and well just that most judicial officers to not understand that this is what they apply and this is an


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embedded legal principle in the constitution as the Framers of the Constitution made clear thatState courts had this power, even before federation as colonial courts!

Because any order issued without having invoked JURISDICTION is without legal force it istherefore open to you as President of VCAT to formally declare those orders to be ULTRA5VIRES and by this avoid any misuse of those purported orders. It would be an error to assumethat an appeal or some kind of rehearing would be needed because any order issued without

JURISDICTION is no order at all! All you therefore would do is to so to say place in concretethe position of the purported orders to safeguard Mr Francis James Colosimo of any danger thatsuch purported orders are misused./abused against him as Maddocks Layers as I understood it10from their 16 March 2009 submission still planned to do.

Take it from me if I were to be the president of VCAT I would first of all call all Memberstogether and lay down that they better make sure they are acting according to the RULE OFLAW and DUE PROCESS OF LAW and provide for NATURAL JUSTICE as there is no15place for those who are knowingly and deliberately acting in a unjustified harmful manneragainst any person. And I would make sure each member would be provided with a list of issues

they must attend to if applicable and in which manner so that never again a Member doesntknow how to conduct proceedings and goes on without invoking jurisdiction.

20Why not check the orders of VCAT Senior Member Philip Martin and see where in hisorders of 30 may2007 he ordered for Maddocks lawyers solicitors for Moorabool ShireCouncil to serve upon Mr Francis James Colosimo a copy of the 28 May 2007 swornAffidavit?

25Surely with your experiences as a judge of the county Court of Victoria you should be aware that

it is a total legal absurdity for EX PARTE proceedings to be held and even nearly three yearslater the person against whom the 28 May 2007 sworn Affidavit was used still was not served acopy of this 28 May 2007 sworn Affidavit and VCAT Senior member Mr Philip Martin (Iunderstand to be a lawyer) never seemed to bother about making orders to ensure that the 2830May 2007 sworn Affidavit was served upon Mr Francis James Colosimo.

When I read Colosimo v Moorabool SC [2007] VCAT 948 (30 May 2007) athttp://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/vic/VCAT/2007/948.html?query=title(COLOSIMO) I was

horrified how the Orders and reason of Judgment was pretending to set out a set of circumstances35not at all as such having been applicable.

As Mr Francis James Colosimo on 9 March 2007 had challenged the jurisdiction of VCAT andDeputy President Helen Gibson had failed to understand that unless and until this OBJECTIONwas formally overruled by way of REASON OF JUDGMENT and ORDERS she never invoked40JURISDICTION and hence any further litigation before VCAT was without JURISDICTION!As such, there was no legal obligation to Mr Francis James Colosimo to attend any furtherhearings because no JURISDICTION was ever invoked.And, obviously where VCAT nevertheless went on issuing orders in the manner it did it in myview began an elaborate conduct ofTERRORISM upon Mr Francis James Colosimo.45


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The following applies as much to Federal laws of the Commonwealth of Australia as it does tofederal laws in the USA; http://familyguardian.tax-tactics.com/Subjects/LawAndGovt/ChallJurisdiction/AuthoritiesArticle/AuthOnJurisdiction.htmQUOTE

37 Am Jur 2d at section 8 states, in part: "Fraud vitiates every transaction and all contracts.5Indeed, the principle is often stated, in broad and sweeping language, that fraud destroysthe validity of everything into which it enters, and that it vitiates the most solemn contracts,documents, and even judgments."

END QUOTEAnd10QUOTE

The general misconception is that any statute passed by legislators bearing the appearanceof law constitutes the law of the land. The U.S. Constitution is the supreme law of the land,and any statute, to be valid, must be in agreement. It is impossible for both the Constitutionand a law violating it to be valid; one must prevail. This is succinctly stated as follows:15

The general rule is that an unconstitutional statute, though having the form and nameof law, is in reality no law, but is wholly void, and ineffective for any purpose; sinceunconstitutionality dates from the time of its enactment, and not merely from the date

of the decision so branding it. An unconstitutional law, in legal contemplation, is asinoperative as if it had never been passed. Such a statute leaves the question that it20purports to settle just as it would be had the statute not been enacted.Since an unconstitutional law is void, the general principles follow that it imposes noduties, confers no rights, creates no office, bestows no power or authority on anyone,affords no protection, and justifies no acts performed under it. . .

A void act cannot be legally consistent with a valid one. An unconstitutional law cannot25operate to supersede any existing valid law. Indeed, insofar as a statute runs counter to thefundamental law of the land, it is superseded thereby.No one is bound to obey an unconstitutional law and no courts are bound to enforce it.

END QUOTE

Sixteenth American Jurisprudence30Second Edition, 1998 version, Section 203 (formerly Section 256)

Bowers v Smith (1953) 1 ALL ER 320 (Re Clarke Hall) and (Morrison on Children, 7 Ed ,P3)

"... the first business of the court is to try to issue whether or not the case is boughtwithin the terms of the statute, and only if this be proven by proper evidence can the35court proceed to decide upon treatment"(See CROSS v. DE VALLE, 68 U.S. 5 (1863))

Thompson v Tolmie 27 U.S. 157 (1829) Page 27 U.S. 157, 169QUOTE40

When a court has jurisdiction, it has a right to decide every question that occurs in thecause; and whether its decisions be correct or not, its judgment, until reversed, is regardedas binding in every other court. But if it acts without authority, its judgments andorders are regarded as nullities. They are not voidable, but simply void; and form nobar to a recovery sought in opposition to them even prior to a reversal.'45

END QUOTEAndQUOTE


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Where there is absence of jurisdiction, all administrative and judicial proceedings area nullity and confer no right, offer no protection, and afford no justification, and maybe rejected upon direct collateral attack.

END QUOTE

5TAYLOR v. TAYLOR [1979] HCA 38; (1979) 143 CLR 1 (22 August 1979) (Folder 1)

Similarly in Commissioner of Police v. Tanos (1958) 98 CLR 383, at p 395, Dixon C.J. andWebb J. said thatQUOTE

it is a deep-rooted principle of the law that before anyone can be punished or prejudiced in10his person or property by any judicial or quasi-judicial proceeding he must be affordedan adequate opportunity of being heard.

END QUOTE

Uniform Tax \case, 1942 (65CLR 373 at 408) 23-7-194215QUOTE

Common expressions such as: 'The Courts have declared a statute invalid'," says ChiefJustice Latham, "sometimes lead to misunderstanding. A pretended law made in excess ofpower is not and never has been a law at all. Anybody in the country is entitled todisregard it. Naturally, he will feel safer if he has a decision of a court in his favor, but20such a decision is not an element, which produces invalidity in any law. The law is notvalid until a court pronounces against it - and thereafter invalid. If it is beyond power it isinvalid ab initio.

END QUOTE

25Jurisdiction(Black's Law Dictionary): It is defined as:

QUOTEThe legal right by which judges exercise their authority. It is the authority by which

courts and judicial officers take cognizance of and decide cases. It is the authority,

capacity, power or right to act.30

END QUOTE

Main v. Thiboutot, 100 S. Ct. 2502 (1980).

QUOTE

he law provides that once State and Federal jurisdiction has been35

challenged, it must be proven.

END QUOTE

Hagens v. Lavine, 415 U.S. 533,

QUOTE40

- Once jurisdiction is challenged, it must be proven .END QUOTE

Standard v. Olsen, 74 S. Ct. 768,

QUOTE45


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- No sanctions can be imposed absent proof of jurisdiction.

END QUOTE

Basso v. Utah Power & Light Co., 495 2nd 906 at 910,

QUOTE5

- Jurisdiction can be challenged at any time, even on final determination.

END QUOTE

Re Wakim; Ex parte McNally; Re Wakim; Ex parte Darvall; Re Brown; Ex parte Amann; Spi[1999] HCA 27 (17 June 1999)10QUOTE

For constitutional purposes, they are a nullity . No doctrine of res judicata or issue

estoppel can prevail against the Constitution. Mr Gould is entitled to disregard the ordersmade in Gould v Brown. No doubt, as Latham CJ said of invalid legislation, "he will feel

safer if he has a decision of a court in his favour". That is because those relying on the15earlier decision may seek to enforce it against Mr Gould.

END QUOTE

The obligation that rested upon Deputy president Helen Gibson was to make clear to theProsecutor that the moment there is an OBJECTION TO JURISDICTION then it is not for the20judicial officer to assume JURISDICTION but for the Prosecutor to prove JURISDICTION andwhere this relates to federal matters which are beyond the judicial capacity of VCAT not being acourt invested with Federal jurisdiction then the Prosecutor had to obtain a ruling about VCATsjurisdiction from a competent court of law!If a VCAT Depute President cannot even understand this simply legal principle then how many25other cases are likewise suffering the same injustices?

Neil v Nott (1994) 68 ALJR 509 at 510 (High Court) (See Folder 01 on the CD)

QUOTEA frequent consequence of self representation is that the court must assume the burden of30endeavouring to ascertain the rights of the parties which are obfuscated by their ownadvocacy.

END QUOTE

Just that in this case it were each and every VCAT (Senior) member that seemed to have the35problems to understand and comprehend what was legally appropriate and required to be done.

If VCAT Member Philip Martin doesnt understand that an sworn Affidavit has no legalmeaning unless it has been served upon the opponent party either prior to the hearing takingplace or in certain circumstances by order of the Court/Tribunal immediately and without undue40delay after the hearing.

While Maddocks Lawyers may claim they served a copy of the Affidavit of Coral LynnetteYoung upon Mr Francis James Colosimo prior to the hearing by prepaid post, it should beobvious that if a copy was posted prior to the hearing date and the Affidavit was sworn on the45


19/64



hearing date then the purported copy was no copy at all and could not have either been asealed copy of an sworn Affidavit and as such no serve was affected.

For the record I once conducted by telephone hearings a case where the opponent lawyers soughtto use Affidavit but upon my objection that the documents were not copies of Affidavits because5they didnt show any signature and neither the required seal of the Court to show it was filed thenno service was affected and His Honour then realising that the lawyers had twice tried to so to

say hoodwink him then ordered that the opponent party and so their lawyers were restrained infiling any further applications unless first having obtained the leave of a judge of the court, andits application was struck out10

As such, when Maddocks Lawyers failed to serve the 28 May 2007 sworn Affidavit of CoralLynnette Young upon Mr Francis James Colosimo and to my knowledge never did ever since butonly provided Mr Francis James Colosimo with a DRAFT of the Affidavit then surely this showhow little regard VCAT Member Mr Philip Martin had about following proper legal procedures.15Surely he should have realised that where the Affidavit was sworn on 28 May 2007, the day ofthe hearing, and Mr Francis James Colosimo was not present then by his own account in his

REASON OF JUDGMENT he would have known no such service could have taken place earlierthat day after the 28 may 2007 Affidavit was sworn. As such, for all purposes and intent thefailure to ever serve a copy of the 28 may 2007 sworn Affidavit in itself undermines the validity20of the 30 May 2007 orders of VCAT Member Mr Philip Martin.

Let me explain why one never can rely upon a so to say unsworn Affidavit being a DRAFT of anAffidavit. When I assist a party in their litigation then when they are served a copy of a swornAffidavit I urge them to obtain from the Court file a photo copy of what was on file. Then check25it against what was served. This, as I discovered that lawyers would file one copy in court whilehaving a different version served upon the other party. As such, if the opponent party states, for

example: I do not dispute Paragraph 3 of the Affidavit but are unbeknown that paragraph 3 oncourt file may have an opposite meaning then what was served upon the respondent then a gravemiscarriage of JUSTICE eventuate. Also, after a party did obtain copies of the Affidavit that30was filed and he then filed his response I asked him to again go down to the court files and obtainyet another copy of the Affidavit on court file. It was then shown that various alterations weremade to the Affidavit that was on court file but the Affidavit was not re-sworn or served againbut simply the lawyers of the other party had gone down to the court files and made unauthorisedalterations so that the Affidavit on file had a different meaning then that the respondent had.35Judges used to be darn annoyed about the fact that I used to check each and every Affidavitduring a trial and compare then and then actually point out that unauthorised alterations weremade. As such on many occasions I actually proved in court that the court files had been

tampered with by the lawyers who represented an opponent party.It is therefore very clear that no unsupervised access of lawyers to court files should be permitted40but most Registrars will allow this because it being lawyers they trust them and so deny by thisthe opponent a fair and proper trial.

To me lawyers who engage in such practices are guilty of conduct unbecoming to an OFFICEROF THE COURT and place the Supreme Court of Victoria in disrepute by this conduct where45they are OFFICERS OF THE COURT by membership of the Bar of the Supreme Court ofVictoria.


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What we have however is that VCAT Member Mr Philip Martin placed on the Internet aREASON OF JUDGMENT that I view was slanderous upon Mr Francis James Colosimo as itwas a gross deception of the truth and as it was issued without invoking JURISDICTION it wasnot within the ordinary protection of that being of an judicial officer within the meaning of s.143of the vcaata1998428.5

When the vcaata1998428 provides that VCAT can do without certain legal formalities but still

must provide for NATURAL JUSTICE I for one do not accept that this kind of conduct as tonot serve a copy of a sworn Affidavit is excusable and then subsequently issue an order for cost$11,426.50 by way of 1 August 2007 order, in relation to VEXATIOUS litigation not even10permitted to be held by the Infringement Act 2006 in VCAT! But VCAT extended its REIGNOF TERROR over Mr Francis James Colosimo to persist in holding not less then 6 purportedCONTEMPT hearings without bothering to formally charge him and threatening him withimprisonment, etc, and then to order administration orders to ensure that this REIGN OFTERROR is executed to the maximum and if you take it that as President of VCAT can continue15to ignore this then I can assure you I for one will not.

Kikonda Butema Farms Ltd v The Inspector General of Government HCT-00-CV-MA-593-2003QUOTE20

The purpose of a review is to correct a glaring absurdity in light of discovery of newfacts and circumstances. It is in light of the above that even courts of law also reviewtheir judgments and orders.

END QUOTE

25This is not an issue about you being blamed for what happened prior to your appointment asPresident but for what is continuing since you became President of VCAT.

Basically it is all about leadership and the question therefore is what kind of leadership canyou provide as so far I am one not at all impressed that the rot continues on your watch!30

Scuderi v Morris [2001] VSCA 190 (29 October 2001QUOTE

In order to resolve this appeal and to determine the relevant principles, we have had tolook at a considerable number of additional reported decisions as well as a variety of35text books, many of which we have had to find for ourselves with the invaluable assistance

of the researchers engaged by the Court.END QUOTE

Those who may dislike my elaborate writings may have to understand that if they had not in the40first place misused and abused legal processes to unduly inflict EMOTIONAL, MENTAL andFINANCIAL harm upon Mr Francis James Colosimo then he would never have needed myassistance to represent him to sort out this elaborate mess.

R v. Lusink and another; Ex Parte Shaw (1980) 6 FLR 235 and 236 High Court of Australia45

QUOTE


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The critical question, however, is not whether a judge believes he or she has prejudged aquestion, but whether that is what a party or the public might reasonably suspect has occurred(see per Lord Denning MR in Metropolitan Properties Co. (FGC Ltd v Lannon (1969) 1QB 577 at 599, (See Folder 10 also)

END QUOTE5

Well when on check the transcript such as that of 29 March 2010 then it must be clear that there

was a lot wrong in the way VCAT Senior Member Ms Preuss conducted matters. The question iswhen will it stop?

10While VCAT Senior Member Ms Preuss made it an issue time and time again, even to involvethe Victorian Government Solicitors Office to try to get me to remove my lawful publishedmaterial I view that as an OFFICER OF THE COURT she rather ought to have been pleasedthat I sought to clean up the rot, even so she was part of it, because after all why have anycourts/tribunals at all if all it does is to abuse and misuse legal proceedings? Why indeed bother15having all those parliamentarians being paid to legislate for legal provisions and not just leave itup to the lawyers to do whatever they want? Why indeed bother about legal processes if in the

end it counts for nothing in VCAT as the cases involving Mr Francis James Colosimo proved?

No matter how much VCAT Senior Member Ms Preuss may despise me after all it should be20recognised that if she had in the first place acted legally appropriate then it never would havecome to the publications and as such she rather ought to blame herself and other and be lessinterested in seeking to look after her own skin and more concerned to do the job she is paid for.

I am well aware that a State government wouldnt want me to be the president of VCAT as it25would be well aware I would clean out the rot and have it running according to law and this is

what the Government doesnt desire. This is not some unproven bold statement but evidence bythe fact that neither the Premier of Victoria and/or the Attorney-General wanted to seek leave tointervene to stop this REIGN OF TERROR upon Mr Francis James Colosimo despite of theelaborate details provided to them. Within the legislative provisions the Attorney-General could30have applied to intervene but clearly couldnt care less about doing so and rather left the REIGNOF TERROR to continue upon Mr Francis James Colosimo.

The citizens of the State of Victoria do not need some weakling as a President of VCAT who willnot act to ensure that JUSTICE DOES PREVAIL as they are entitled to have someone who35earn his keeps and if taking an appointment act accordingly to all duties and obligations and if

not being able to do so being it MISSING IN ACTION then let this person vacate the job to aperson who is more competent to conduct the supervision of VCAT!

I request you to provide me with all transcript of the hearings, other then the 6 transcript40already provided by Her Honour Harbison J orders albeit the 16 March 2009 transcriptneed to be corrected and finally also all files held in the different cases involving MrFrancis James Colosimo so I can explore more issues. For sure it might so to say hurtVCAT a bit more but then again this is a brilliant opportunity to have it all placed onrecord so you can address the issues and therefore it is essential that I do appropriately45investigate matters and not obstructed in this by the denial of transcripts and files. Only byfacing the truth of matters can one seek to resolve the issues. Keeping matters hidden


22/64



means there is no genuine interest to appropriately supervise VCAT as you cannot possibledo so unbeknown to the modus operandi that is existing, and to what extend this further isan abuse and misuse of power.The numerous issues I have raised in my writings since January 2009 only can indicate ascandalous conduct the way VCAT operates and the truth and nothing but the truth must be5allowed to surface and that it is essential that the transcripts for this also are provided. After all,was it not for Her Honour Harbison J having provided the transcript of the 6 purportedCONTEMPT hearings no one would have been the wiser that Her Honour Harbison J actuallynever had formally charged Mr Francis James Colosimo.Was it not for the transcripts that I could prove what Her Honour Harbison J stated on 16 March102009 in which she category denied having found all elements proven of the CONTEMPT as wasalleged by Mr Peter Sier of State Trustees Limited in his 21 January 2009 correspondence toVCAT then again no one would have been the wiser for it.And likewise with the 28 May 2007 transcript it is essential that I am the one to explorewhat went on during the hearing as to be able to expose any perjury that went on, etc. as15well as what if any misconduct VCAT Member Philip martin was or might have beeninvolved with.

It should be understood that the numerous inappropriate/unlawful conduct by so many againstMr Francis James Colosimo begs the question what on earth was VCAT doing? How on earth20could this REIGN OF TERROR be continually perpetrated upon this totally innocent man andeven a sitting judge of the County Court of Victoria as I understand Her Honour Harbison J is,failing to report the matters to the relevant Authorities and to take appropriate action as anOFFICER OF THE COURT and not to just stand by and even cooperate for this rot tocontinue? And it worsened even now while you are president of VCAT as was proven on 2925March 2010!

I will now quote the judgment referred to previously and have to some extend highlighted some

matter in colour albeit the whole of the judgment ought top be considered..30

Kirk v Industrial Relations Commission; Kirk Group Holdings Pty Ltd v WorkCover Authority

of New South Wales (Inspector Childs) [2010] HCA 1 (3 February 2010)

QUOTE

Kirk v Industrial Relations Commission; Kirk Group Holdings Pty Ltd v WorkCover Authorityof New South Wales (Inspector Childs) [2010] HCA 1 (3 February 2010)35

Last Updated: 3 February 2010

HIGH COURT OF AUSTRALIAFRENCH CJ,GUMMOW, HAYNE, HEYDON, CRENNAN, KIEFEL AND BELL JJ

40Matter No S106/2009

GRAEME JOSEPH KIRK & ANOR APPELLANTS

AND45

INDUSTRIAL RELATIONS COMMISSION OF

NEW SOUTH WALES & ANOR RESPONDENTS


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Matter Nos S347/2008 & S348/2008

KIRK GROUP HOLDINGS PTY LTD & ANOR APPLICANTS5

AND

WORKCOVER AUTHORITY OF NEW SOUTHWALES (INSPECTOR CHILDS) RESPONDENT

10

Kirk v Industrial Relations Commission of New South Wales

Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs)

[2010] HCA 13 February 201015S106/2009, S347/2008 & S348/2008

ORDER20Matter No S106/2009

1. Appeal allowed.2. Set aside the orders of the Court of Appeal of the Supreme Court of New SouthWales made on 3 July 2008 and in their place order that:25

(a) the orders of the Industrial Court of New South Wales made on 9 August 2004, and on 24

January 2005 and the orders of the Full

Bench of the Industrial Court of New South Wales made on 15 November 2006, and on 8 May2007 be quashed; and

30(b) the second defendant, the WorkCover Authority of New South Wales, pay the plaintiffs' costs.

3. Second respondent to pay the appellants' costs in this Court.4. Amend the title of the proceedings in this Court by deleting "Industrial RelationsCommission of New South Wales" and substituting "Industrial Court of New South35Wales".

Matter No S347/2008

Application for special leave to appeal dismissed.40

Matter No S348/2008

Application for special leave to appeal dismissed.

45On appeal from the Supreme Court of New South Wales and the Industrial Court of New SouthWales

Representation50


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G J Hatcher SC with C S Ward for the appellants in S106/2009 and the applicants in S347/2008and S348/2008 (instructed by David Lardner Lawyers)

Submitting appearance for the first respondent in S106/20095

M G Sexton SC, Solicitor-General for the State of New South Wales and J V Agius SC with P MSkinner and A M Mitchelmore for the second respondent in S106/2009, for the respondent inS347/2008 and S348/2008 and intervening in each matter on behalf of the Attorney-General forthe State of New South Wales (instructed by WorkCover Authority and Crown Solicitor (NSW))

10S J Gageler SC, Solicitor-General of the Commonwealth with S J Free intervening in each matteron behalf of the Attorney-General of the Commonwealth (instructed by Australian GovernmentSolicitor)

M G Hinton QC, Solicitor-General for the State of South Australia with S A McDonald15intervening in each matter on behalf of the Attorney-General for the State of South Australia(instructed by Crown Solicitor (SA))S G E McLeish SC with C O H Parkinson intervening in each matter on behalf of the Attorney-

General for the State of Victoria (instructed by Victorian Government Solicitor)20

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior topublication in the Commonwealth Law Reports.

CATCHWORDS25

Kirk v Industrial Relations Commission of New South WalesKirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (InspectorChilds)

Occupational health and safety Statutory duty Occupational Health and Safety Act198330(NSW), ss 15 and 16 provided duties of employer to "ensure the health, safety and welfare atwork of all the employer's employees" and that "persons not in the employer's employment arenot exposed to risks to their health or safety arising from the conduct of the employer'sundertaking" Section 53(a) provided a defence where it was "not reasonably practicable ... tocomply with the provision of this Act" Breach of duty criminal offence Statement of offences35as particularised did not identify what measures defendant could have taken but did not take tofulfil duty Whether statement of offence must identify act or omission said to constitutecontravention of s 15 or s 16 Whether failure to charge act or omission an error of law Whether error on the face of the record Whether jurisdictional error.

40Evidence Competence and compellability of accused persons Joint trial Industrial RelationsAct1996 (NSW), s 163(2) required hearing to be conducted in accordance with the rules ofevidence Evidence Act1995 (NSW), s 17(2) provided that a defendant is not competent to giveevidence as witness for prosecution No power of Industrial Court of New South Wales todispense with s 17(2) Defendant called as witness for prosecution Whether jurisdictional45error Whether error on the face of the record.

Administrative law Jurisdictional error Error of law on the face of the record Whetherorders in nature of certiorari available.

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Statutes Privative clause Industrial Court of New South Wales Construction of privativeclause Whether privative provision effective to prevent review for jurisdictional error Whether effective to prevent review for error of law on the face of the record Relevance ofexclusion of right to appeal to Supreme Court of New South Wales and to High Court ofAustralia.5

Constitutional law (Cth) Chapter III State Supreme Courts Power of State Parliament toalter defining characteristic of Supreme Court of a State Supervisory jurisdiction Whether adefining characteristic is power to confine inferior courts and tribunals within limit of theirauthority to decide.10

Procedure Costs Appellate court exercising supervisory not appellate jurisdiction Appellate court makes orders in nature of certiorari Whether appellate court has power to makeorders in place of orders quashed.Words and phrases "act or omission", "certiorari", "description of offence", "error of law on the15face of the record", "jurisdictional error", "privative provisions", "reasonably practicable","superior court of record", "Supreme Court of a State", "the record".

Constitution, Ch III, ss 71, 73, 75(v).Criminal Procedure Act1986 (NSW), s 11.20Evidence Act1995 (NSW), ss 17(2), 190.Industrial Relations Act1996 (NSW), ss 179, 163(2).Occupational Health and Safety Act 1983 (NSW), ss 15, 16, 53.Supreme Court Act1970 (NSW), s 69.Supreme Court (Summary Jurisdiction) Act 1967 (NSW), ss 4, 6.25

1. FRENCH CJ, GUMMOW, HAYNE, CRENNAN, KIEFEL AND BELL JJ. TheCourt heard together three related proceedings. The first (No S106 of 2009) is an appealfrom the Court of Appeal of the Supreme Court of New South Wales. The ultimate

question in the appeal is whether the Court of Appeal erred in refusing orders in the30nature of certiorari to quash the orders for the convictions of the appellants in what is nowthe Industrial Court of New South Wales ("the Industrial Court") [1] for offences againstthe Occupational Health and Safety Act1983 (NSW) ("the OH&S Act")[2].2. The other two proceedings (Nos S347 and S348 of 2008) are applications forspecial leave to appeal against, respectively, a decision of the Full Bench of the Industrial35Court given on 15 November 2006 and a subsequent decision of the Full Bench given on8 May 2007.3. If the appeal succeeds and the convictions of the appellants are quashed by orderof this Court, the occasion for detailed consideration of the special leave applications willbe removed and they should be dismissed. In the reasons which follow attention is given40

first to the disposition of the appeal and the conclusion reached is that the appeal shouldbe allowed and the convictions quashed.4. The appellants contend that in ordering their convictions the Industrial Court fellinto jurisdictional error in several respects and that the Court of Appeal accordinglyshould have made an order to quash. They further contend that upon the proper45construction of the relevant legislation there was no "privative provision" effective toexclude the exercise of that jurisdiction by the Court of Appeal. In construing such aprivative provision the appellants point to the jurisdiction of the Supreme Court atfederation as superintendent of tribunals and other courts of New South Wales, and to theavenue for appeal to this Court from decisions of the Supreme Court which is mandated50by s 73(ii) of the Constitution[3].


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The facts

5. The appellant company, Kirk Group Holdings Pty Ltd ("the Kirk company"), wasthe owner of a farm near Picton, New South Wales. Mr Kirk was a director of thatcompany, but did not take an active part in the running of the farm. He had no farming5experience and was not in good health. He left the day to day operation of the farm toMr Graham Palmer, who was employed by the Kirk company as a farm manager.Mr Palmer had run a large property of his own and Mr Kirk considered him to be a verycompetent person.6. An All Terrain Vehicle ("the ATV") was purchased by the Kirk company in June101998 on Mr Palmer's recommendation. On 28 March 2001, the date the subject of theoffences, Mr Palmer used the ATV to deliver three lengths of steel to fencing contractorswho were working in the far back paddock of the farm. He secured the steel to carry racksat the rear of the ATV. A formed road led to the area where the contractors were working.Mr Palmer left that road and proceeded on the ATV down the side of a hill. There was no15formed track on the slope and it was steep. It was unnecessary for Mr Palmer to take thisroute given the existence of the road. At first instance, in the Industrial Court, Walton Jobserved that nobody knew why Mr Palmer had elected to drive the ATV down the side

of the hill. The ATV overturned and Mr Palmer was killed.The OH&S Act20

7. Part 3 of the OH&S Act contained provisions relating to the health, safety andwelfare of employees and other persons at a workplace. Division 1 of Pt 3 concerned thegeneral duties of employers and employees in that regard. The o

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