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Court in the Act
26 March, 2003  
Mistakes, bias and plagiarism. Another awful assault on Howard Nathan

Another instance where the nitpickers on the Victorian Court of Appeal are being mean to Howard Nathan. It is said that in one judgment he made 50 mistakes of fact, plucked figures from the air, was biased and plagiarised the plaintiff’s submissions

Just how much can Howie Nathan stand from the misery-gutses on the Victorian Court of Appeal?

On the very same day that Ormiston JA was carrying on about one of Nathan’s “tasteless …flippant…and irrelevant” judgments and criticising his loose thinking on public morality (see earlier story), we find Charles, Buchanan and Chernov JJA also getting stuck into him for making 50 errors and plucking figures from the air in his judgment in Fletcher Construction v Lines, MacFarlane & Marshall

Here the architect of the Men’s Metropolitan Prison at Laverton, which became known as the Port Phillip Prison, was suing the construction company for unpaid work. The contractor counter-claimed that the architect left work unfinished and defective.

According to the Court of Appeal, Howie, who retired from the bench in 1997 and is now on the Supreme Court reserve list, doesn’t have a sufficient depth of understanding about what makes for a good lock-up.

Nathan preferred the architect’s story and gave the parties a brief oral summary of his reasons along with a draft of written reasons for judgment.

He did this because he thought the parties might appreciate knowing the “gist” of his findings. His final reasons were handed down five weeks later.

That approach was described by the killjoys on the Court of Appeal, in an earlier judgment, as “undesirable” and “unusual” and unsatisfactory to both parties.

Nathan AJ found that the architect had completed 93 per cent of the contracted work. In so doing he rejected in its entirety expert evidence led by the contractor.

The Court of Appeal said Howard’s judgment was “fundamentally flawed” and riddled with errors. They found he had selectively quoted from the evidence to support his findings and that he hadn’t a clue when it came to prisons and security.

Nathan had dismissed expert evidence led by the contractor on the high level of security required at a prison. Nelson thought such security facilities outside the design brief.

The Court of Appeal went so far as to suggest Nathan had it in for the contractor, saying there was a “striking” contrast in the manner in which he dealt with submissions from both parties.

“To the point that it appears that most of [the contractor’s] arguments and the evidence supporting its arguments were simply ignored by the judge.”

This was so unlike Nathan, who was once so thorough with evidence he ordered a biker club leader’s wife to bare her posterior in court so that police could search for a rose tattoo witnessed in the rape of another woman.

Even more mysterious was how Nathan had fixed on a figure of 93 per cent in the dispute over the construction of the prison. It is nigh impossible to work it out, the appeal types found.

They suggested he had either plucked the figure from the air or, at best, had relied on guess-work. Either way, it was a fundamental error on Nathan’s part, akin to the exercise of judicial discretion.

That was one of 50 crucial errors the court decided Nathan had made. Add to that the inference of plagiarism, after Charles, Buchanan and Chernov found the learned trial judge had adopted closing submissions for the architect in their entirety. He seemed to have cut and pasted more than 40 paragraphs for his judgment.

The whole thing was sent back for retrial.