Any reference to CASACIR or its directors, shareholders, owners or operators relates to pre-14 February 2024 when the company was sold. In no way can anything said relate to the company or its new owners, operators, directors, and shareholders after that sale.
I had previously been attacked by man X, man Y and CASACIR and their then legal team because I was the person who could have and would have stopped the quarry. Now I was being attacked for telling the truth about one of the perpetrators in what happened in the injustice system. We ought to have been able to have honest debate, but I was denied that right – it was either do it their way or be attacked by being litigated against.
In spite of the fact that everything I said about what Barrister ABC had done was the truth and that I was justified in saying what I did, he decided to take action against me and he used the company of Nicholas O’Donohue & Co (principally Mark Schofield (“Schofield”)), as well as senior barrister Craig Harrison (“Harrison”) and junior barrister Sonari Fernando (“Fernando”) as his legal representatives.
Barrister ABC used his legal representatives to make false claims and produce documents meant to try to force and bully me into removing the webpage I wrote about him. I had already been around that track once with man X and man Y but Barrister ABC was clearly unaware that I was not going to be bullied into it again. This left him in a very bad place because he didn’t actually want to take me to court for a serious case because he knew that (1) he couldn’t prove his case, but (2) I could prove that what I wrote about him was true and that I was justified in writing it.
He even stitched himself up by admitting to the court that Spencer had told him about the webpage bearing his name in 2018, and that it purportedly contained defamatory matters about him. Barrister ABC claimed that he had been too busy to look at it for 3 years (until told about the webpage again in January 2021). This is extraordinary conduct given that he claims to be a barrister specialising in defamation. Given the amount of other inaccurate “facts” he told the court as absolute truth, it is my contention that he did indeed look at it in 2018 and found that it was not defamatory and didn’t know what to do about it at the time. He further told the court as absolute fact that Spencer had told him that there were many other legal professionals who were joining together to take action against me for what I wrote about them. However, given that not one has approached me personally or legally, this too was a lie – they all know that what I wrote is the truth and that truth is easily proved in each case.
Barrister ABC told the court a very small and selected part of the history, with a large portion either false or misleading. Whilst it was not the basis of this case, it was nonetheless important to have a more involved glimpse into the history: In 2002 we bought our property. The land to the north of us had been a quarry in the 1970s and 1980s, but the licence had been handed back in to the authorities, the quarry had been closed, and the land completely rehabilitated and used for a neighbour’s dairy enterprise for many years at the time of our purchase. In 2006 Barrister ABC’s former clients (man X and man Y) bought the land to the north of us and decided to commence a new quarry on the land through their company, CASACIR[1] of which man X and man Y were both directors. Man X and man Y were fully aware that in stage 2 of their quarry plan they had to destroy the waterway locally known as Kookaburra Creek, as well as the aquifers which fed it, the spring at which it commenced, and the majority of its surface catchment area. This Kookaburra Creek was the flow of water on which our property depended and the use of which we had a legal right under s8 of the Water Act 1989. Also under the Water Act is the requirement for a permit for any works proposed to be performed on a waterway. Man X, man Y and CASACIR (1) knew we had the right to the use of the water and (2) knew and admitted that they had to obtain a permit prior to any such works. They also knew that in order to legally have a chance at continuing their quarry into stage 2, they had to find a way to get rid of me. They obtained a permit and work authority in 2009 and commenced works in early August 2009. Within days of commencing they commenced their illegal works by excavating through Kookaburra Creek and piping a section of it without having even applied for a permit. They then dug a deep hole so that the flow emitting at the end of the pipe no longer flowed into the old bed and banks of the creek bed, thereby ensuring that the flow went underground and that we no longer had the use of the flow any more. When challenged by me on what they had done, they retrospectively applied for and received a permit for the piping of the flow, but did not apply for or receive a permit for the illegal deviation of the flow and refused to reinstate the flow. This was just one of the many illegal works and activities done by CASACIR and its directors. We took action against man X, man Y and CASACIR for their illegal activities and Barrister ABC acted for them on 4 occasions (18 and 25 September 2009, 20 November 2009 and 27 July 2010).
I can go into more detail on the 2009 hearings if the court would like, but the 27 July 2010 hearing was in relation to the water claim against man X, man Y and CASACIR because they had stolen our water; and that particular hearing was in relation to man X, man Y and CASACIR’s continued non-compliance with VCAT orders and directions. Barrister ABC was fully aware that allegations had been made over man X, man Y and CASACIR’s illegal activities and that his clients had repeatedly failed to comply with VCAT directions and orders.
In 2011 I commenced a website called quarryfight.com because of (1) the way man X, man Y and CASACIR had continually disregarded compliance with their permit, work authority and a number of sections of the law in general, (2) the way they had lied to VCAT, including under oath, and (3) how member Byard, after instructing me no less that 5 times to take out enforcement orders then accused me of being vexatious for doing so, and awarded costs against me as a result.
Just as Barrister ABC doesn’t like being exposed for his activities and part in it all, man X, man Y and CASACIR each took legal action against me, with the admitted real plan being to actually get the website to be taken down and to cause me financial damage. Man X, man Y and CASACIR commenced their strategy with the able assistance of Barrister ABC. This continued with them asking for his input, and his input was to author the letter dated 19 August 2011 in which he wrote a number of fraudulent misrepresentations as absolute truth (he claims that he wrote it under precise instructions, but the file notes indicate otherwise), then, knowing what Barrister ABC had written was false, man X and man Y used the letter as truth and fact and were awarded hundreds of thousands of dollars based on the lies in that letter, as well as ones that man X and man Y told (including by lying under oath). So, that is the background.
Back to case in question, the fact is that I had given grace to Barrister ABC by stating in the webpage that he had acted under instructions in writing the letter, but that didn’t stop him from taking action against me.
Barrister ABC admitted to having authored the letter, and even provided a copy of it in his affidavit dated 25 March 2021. He admitted to having acted for his then clients in VCAT in 2009 and 2010. As we have seen from the relevant webpage about that letter, the letter was full of lies and, whether or not what he told the tribunal was under instructions, he nonetheless told the VCAT member that a particular document was not ready when it had actually been ready for filing and serving for at least 6 weeks. The facts are the facts, the truth is the truth, and that is what matters – well, that it what matters to me.
Barrister ABC lied in his documents presented to the court as absolute fact, he provided two affidavits which contain much in the way of falsely sworn evidence (and one affidavit was sworn the day after it was filed (very interesting fact, that!!)), he swayed and changed what he was trying to claim against me, and repeatedly tried to get the court to make decisions against me without any proof or testimony and without running a real case. I don’t know what the court thinks of all that, but in my opinion it is unconscionable conduct and I have to wonder if he is actually a fit person to be a legal practitioner and officer of the court (but you make your own decision).
Although Barrister ABC was one of the previous perpetrators, he has tried hard to come across as the victim and, by his actions, is again a perpetrator by making the deliberate decision to victimise me yet again by taking false action against me.
I told him on 4 February 2021 that I would counterclaim if he took action against me but, in spite of knowing that, on 18 May 2021, I was served by email (not properly by service on me personally as required by law). The documents were sealed by the court and comprised of:
- a summons dated 11 May 2021 (the same contents as in the summons as provided to me undated previously – see the webpage on Mark Schofield),
- a writ dated 11 May 2021,
- an affidavit dated 25 March 2021 (the same contents as in the affidavit as provided to me unsigned previously),
- a “proper basis certification” signed by Schofield (that had no actual proper basis),
- a statement of claim dated 11 May 2021 (the same contents as in the statement of claim as provided to me undated previously), and
- a court order dated 17 May 2021 allowing an adjournment of a hearing that had been set for 18 May 2021 (clearly further proving there was absolutely no rush to have the matter dealt with).
A new hearing had been set, with me (1) not aware that I had to get my defence filed and served that quickly, and (2) not having enough time to prepare one that soon. I did, however, file and serve two affidavits that I had prepared after first being made aware of the possibility of Barrister ABC taking action – those affidavits proved that what Barrister ABC claimed about me was false, and that what I had published was true and factual and that I had been justified in writing it – interestingly, none of Barrister ABC or his legal team disputed anything I said, they just claimed I was malicious in saying it!
Nowhere in Barrister ABC’s statement of claim, writ, summons, or affidavit, did he or his legal team clearly identify the cause of action they were taking. It could be read that they were taking defamation action but, if so, they were out of time given that any such action had to be taken within one year of the publication being made, with a possible extension of a further two years if there were extreme extenuating circumstances. The action was being undertaken in excess of the 3 years since publication (uploading to the internet, and 3 years since I claim that Barrister ABC first downloaded it), and Barrister ABC confessed to having known about the publication for over 3 years and also confessed to having done nothing about it. He even claimed that he had not even read it in all that time. Now they were taking action? Really?
One minute prior to the 26 May hearing commencing, I was handed their submissions – how unfair was that? I was expected to read it and be prepared to respond to it in one minute! This is sadly typical of the injustice I have been subjected to. Additionally, the submissions claimed as fact, that the sole action was for “injurious (malicious) falsehood, and nothing else (i.e. not defamation) – this was a complete game-changer.
At the new hearing on 26 May 2021 (with Schofield and Barrister ABC sitting there close by (Harrison was missing in action)), Fernando told the court that they were “seeking a permanent injunction”[2] – clearly expecting the judge to ignore the fact that they had not proved anything but just that they wanted the webpage removed regardless that such a request was an injustice and against procedural fairness. When challenged by the judge, Fernando came back with [emphasis mine] “Well we seek an interim injunction, Your Honour, or a permanent injunction”[3]. The judge, the Honourable Justice Gorton (“Gorton J”), then pointed out that [emphasis mine] “Well there’s no way I could give you a permanent injunction today, is there? There’s not even a defence. I know that the summons expresses that, but I have assumed that what you’re seeking is an injunction, pending the determination of the matter at trial … It would be like a summary judgment application then, if we were – and it just doesn’t seem to me appropriate that I make a – I couldn’t give a final injunction without making final findings today, on whether your client’s statement of claim succeeds or not. And in circumstances where there’s no defence yet been filed, I really can’t see how I can do that, just on affidavits that have been filed. Ordinarily of course, there would be oral evidence and the like”[4] (it must be remembered that both Schofield and Barrister ABC are self-proclaimed specialists in defamation law and know the processes, yet they wanted to abuse the court’s processes in this manner). The hearing did not proceed any further and we were given until the following Monday (31 May 2021) to prepare for another hearing.
At the next hearing, on 31 May 2021 (in which Schofield did not participate or even attend), instead of seeking an injunction as claimed in their summons, statement of claim, and verbally before Gorton J, Barrister ABC had instructed Harrison to instead seek the de-identification of himself, Schofield, and Schofield’s company. When Gorton J asked the reason for Schofield seeking to have himself and his company de-identified, the reason given by Harrison was that so that Barrister ABC couldn’t be identified that way (presumably Barrister ABC has worked as a barrister for Schofield and his company previously in the Supreme Court and County Court[5]). I contend that the real reason Schofield wanted to be de-identified was that he hated what I had already said about him (see the webpage “Mark Schofield”), and was also afraid of what I might further say abut him.
Gorton J clarified in a nut-shell what Barrister ABC and his team wanted now: “[What] they’re seeking now is a situation where [Barrister ABC]’s name is replaced by initials until the court can get to the bottom of where the truth lies in this case” – it is my opinion that Barrister ABC and is team did not want him de-identified “until the court could get to the bottom of the truth in the case”, because they did not want the truth to come out at all, they just wanted to have him de-identified full-stop so that they could avoid a court case and having their false claims exposed. I agreed to the de-identification on a short-term basis – that would have annoyed them greatly because they still had to run their case.
As noted earlier, the statement of claim prepared by Schofield bore no clear cause of action against me. Even Gorton J was unclear as to what they were definitely claiming: “I think they’re probably – on the pleadings, as I read it, both of those arguments are potentially alive against you… Well, I must say when I first read the statement of claim, I thought it was a defamation statement of claim, and then when I read the submissions I saw that it also was – it seemed to be both, because in paragraph 7 they say the publication was published by you maliciously, and intending to cause damage. And then in paragraph 8 they say alternatively, the publication is defamatory. So I think the statement of claim does allow them to bring both actions … What action they emphasise for the purpose of today, I’m not quite sure at the moment [6]”
The fact is that, having initially hinted at defamation being the basis of their claim against me, even though Schofield and Barrister ABC knew that they were out of time according to the statute of limitations, they then decided that they would also threaten, bully and intimidate me with a potential claim of injurious falsehood. This was particularly strange given that they admitted that they had the arduous and impossible task of proving that (a) what I wrote was false, (b) that I wrote what I wrote out of malice, and (c) that what they claimed was false actually caused serious harm to Barrister ABC’s business. Given that what I wrote was true and I was justified in writing it, that I only wrote it as part of the injustice perpetrated against me, that I wrote it unemotionally, and that they have proved that there was no damage done to Barrister ABC by any false publications (because what I wrote was true), they had no case.
In fact, they were so desperate to try to drum up something that they used words against me that I had written in my affidavit (words that certainly did not prove what they claimed, and did prove what I claimed) and in a letter to Schofield (a private letter) – neither the words in the affidavits or the letter to Schofield were in the public domain so were therefore entirely irrelevant (and the words they claimed I wrote to Schofield were twisted from what I actually said). Having taken me on though, they were left with one of two options: (1) they could seek the court’s permission to drop the case, or (2) continue with the case in the knowledge that they would fail. Either way, they would lose and look stupid.
As mentioned, I had filed and served two affidavits proving that what I had published was the truth and that I was justified in writing it, but Barrister ABC called me malicious by having done that! – clearly I was being malicious in defending myself, according to him!
Harrison told Gorton J as fact that Barrister ABC wanted to have the matter dealt with quickly, but Barrister ABC and his team then went on to repeatedly try to delay the processes. Harrison dropped out of the case – whether by choice or not, I don’t know.
I was aware that the court would require consent orders for the progress of the matter, so I contacted Schofield with some suggestions to get the ball rolling so we could hit the ground running: on 1 June 2021 I sent Schofield an email detailing my suggestions, but I received no reply – no surprises there).
On 22 June 2021, the court ordered that Schofield and I prepare consent orders for approval of a schedule. The following occurred: (1) on 22 June 2021 I prepared and emailed a proposal to Schofield forwarding my suggestions for timings, but received no reply – no surprises there; (2) on 23 June 2021, I requested a confirmation of receipt of my 22 June email, but received no reply (no surprises there); (3) on 25 June 2021 I requested a confirmation of receipt of my 22 June email, but received no reply (no surprises there); (4) on 1 July 2021 I requested a confirmation of receipt of my 22 June email, but received no reply (no surprises there); and (5) on 2 July 2021, I posted a formal copy of my proposal, ready for their signature, but received no reply (no surprises there). It is my contention that the reason for this stony silence was because (a) Schofield was angry that I had refused to de-identify him and his company, and (2) they didn’t want to proceed with the case and didn’t know how to get out of it and agreeing to a schedule was putting the pressure on them. It is my personal opinion and, if my contention was true, that this would have been unprofessional conduct as well as being downright petty. In fact, it took Schofield until 12 July to respond, but even then it was only to say that he would refer it to Barrister ABC to see what Barrister ABC said about my proposal.
On 14 July I realised that I had used the wrong form for my consent orders, so re-did them and sent them to Schofield as word and pdf versions (no reply and no surprises there).
On 22 July they finally sent me a schedule in proposed consent orders, but it lacked a date for answers to requests for further and better particulars and included (a) the need for interrogatories, (b) the need for mediation, and (c) allowed for Barrister ABC to file and serve an amended statement of claim (without providing any details of what changes he proposed to make). I did tracked changes and added the need for Barrister ABC to file and serve his overarching obligation certification (which he had continued to refuse to file and serve to date), added a date for the answers to requests for further and better particulars, deleted the need for interrogatories and mediation (given that: (1) if answers to requests for further and better particulars were given there would be no need for interrogatories, and (2) Barrister ABC had made it very clear that there was nothing to mediate – it was either his way or the highway), and that if Barrister ABC intended to amend his statement of claim, the court and I had to be made aware of proposed changes prior to granting permission for him to do so (in fact, during the previous hearing during which the issues with their statement of claim had been discussed, during that hearing he could have asked for permission to amend it, but did not – then, 8 weeks later, he was seeking orders to amend it, but was not saying how he wanted to amend it, and no drafts were supplied (even man X, man Y and CASACIR provided me with drafts when they took action)). Additionally, he wanted me to file and serve a defence (not an amended defence), when he knew that I had filed and served my defence on 10 June. My contention is that his intended amended statement of claim was going to be so different as to entirely recast his action – and he wanted the court (and me) to approve it without having seen it or even being told what was in it or information about the changes they proposed (no surprises there) – it was following the line as with the initial injunctions – he just expected the court to just sign off on it without any knowledge!
The court directions handed down directions on 22 June stated that either consent orders signed by both sides, or reasons why there were no consent orders, had to be provided to the court no later than 4.00pm on 28 July (and it was bolded to ensure compliance). Therefore, not having heard from Schofield, on 28 July at just after 2pm I forwarded my tracked changes copy of the proposed consent orders to the court, together with my reasons for not being above to come to agreement with Barrister ABC and his team.
I provided Barrister ABC (through Schofield) an open offer to settle. This offer was, while the temporary de-identification I had previously agreed to on a temporary basis would be reversed, if he withdrew his action against me I would not identify him in this webpage about the action and that we would both wear our own costs. Fernando came back and said (1) Barrister ABC rejected my offer and (2) that if I had a webpage with any information about Barrister ABC, or if any of them were defamed, they would be taking out an injunction against me. I responded by pointing out that for it to be defamatory it had to be false – i.e.as long as what I said was the truth, it was not defamatory. That shut them up because they knew that everything I had written was the truth, and everything in this page is the truth and easily proved.
I produced a further amended schedule, which Barrister ABC refused, but Barrister ABC did agree to not require the mediation given that I was bankrupt at that time (they knew this from the beginning, so what was the change other than Barrister ABC would have to pay the entire costs of it). I notified court that we had not been able to come to an agreement and provided the reasons (as requested by the court). The court then stated that, because we could not come to agreement, that it would make the decision. At 5.00pm on 28 July (out of time for compliance), Schofield provided an email stating that they agreed with the majority of my tracked changes (but did not provide a copy with any accepted changes). They still insisted that they wanted an amended statement of claim allowed, and undertook to provide a copy “by Friday” – silly me, I thought they actually meant Friday 30 July i.e. before the orders would be handed down on 4 August. Of course Barrister ABC and his legal team did not provide the amended statement of claim (in spite of the undertaking to the court and me to do so). Then Barrister ABC, through Schofield, made an undertaking to both the court and me to, by a certain date, provide a draft copy of the amended statement of claim he wanted to have filed and served. However, he didn’t fulfil his undertaking – no surprises there because he wanted it filed and served without the court or me having any prior knowledge as to what he wanted to claim now (he had certainly made it clear in my opinion that that was what he wanted) – of course the proposed amendments to the statement of claim were not provided to either the court or me. After I emailed Schofield twice in one morning, reminding him that he had lied to court by saying that Barrister ABC would provide the court and me with the proposed amended statement of claim (and copying court in on my emails), Schofield suddenly notified me that Barrister ABC was not going to amend his statement of claim after all and that we could come to consent for the orders. Really? Was Barrister ABC ever actually going to amend his statement of claim? – I don’t believe so – it is my personal belief that it was yet another stall and stress tactic (because: why didn’t he amend it if it was so all-fired important? I believe it was because they couldn’t get permission to make the amendments without supplying the details first).
Having told the court and me as fact that Barrister ABC agreed to my suggestions for the schedule (because he had later withdrawn the ones he had not agreed with), Schofield then sent me his proposed consent orders only minus the amended statement of claim paragraph, and leaving in all the ones I had disputed and which they said they agreed to change. Schofield told me to sign it and send it back to him. As if that was going to happen! What can I say? It is my personal opinion (you can have your own opinion), that either they are grossly incompetent (and I doubt that), or they are playing some game and hoping that, having made the false claims of acceptance of my suggestions, that I wouldn’t read what he produced, would believe they had done what they said, and that I would just sign the form – as if I could or would ever trust them (they had a track record of doing this sort of thing to me). What more can I say – they made my job more and more easy.
The court notified us that, because we had not been able to come to consent, there was a directions hearing scheduled for the next day before Judicial Registrar Baker. In a final ditch effort I sent Schofield an accepted copy of my tracked changes on his consent orders, based on his statement that Barrister ABC accepted my changes, and he signed what I sent through. So then we just needed the court to accept them so that we didn’t still have to attend the virtual hearing the next day. Schofield and I had both agreed to Baker JR making orders on the papers
Baker JR’s orders came back and, apart from the inclusion of the requirement for mediation, the orders were exactly as I submitted them. I was very interested to see how Barrister ABC did with compliance with this court order given that he has failed to comply with an earlier court order and with court directions and took umbrage about me making note in the webpage specifically about him in relation to where he knowingly made the false claim that his clients had not ignored tribunal directions and orders, but where Barrister ABC actually personally acted for them in one of the non-compliance hearings – because they had failed to comply with tribunal directions and orders!
So then it all began: in spite of Barrister ABC’s determined efforts to not have to file and serve his required overarching obligations certification, he had to do so and actually did comply. Barrister ABC had been in possession of my defence for the previous 8 weeks, but he had been given a further 4 weeks (until 2 September) to file and serve any reply (but he didn’t serve me with one at all – and Barrister ABC didn’t ever file or serve any reply and, as it turned out, he had no intention of doing so when he authorised Schofield signing the consent orders). By 16 September we had to each file and serve any requests for further and better particulars regarding the other’s documents – I filed and served mine, but Barrister ABC didn’t ever filed or serve any and, as it turned out, he had no intention of doing so when he authorised Schofield signing the consent orders. By 23 September we had to each file and serve any answers to the requests for further and better particulars – I filed and served Barrister ABC with mine, but he didn’t ever file or serve any on me and, as it turned out, he had no intention of doing so when he authorised Schofield signing the consent orders. By 30 September we each had to make discovery of all relevant documents (both for and against our claims) – I served Barrister ABC with my affidavit of documents, but he didn’t ever serve me with his and, as it turned out, he had no intention of doing so when he authorised Schofield signing the consent orders. By 14 October we had to complete inspection of these documents – all the documents I had listed were already in the possession of Barrister ABC but, because he hadn’t provided me with any affidavit of documents, I had no idea of what documents he would be using, so I remained in the dark. By 3 November we had to have attended mediation (I didn’t know what value that would be because Barrister ABC is adamant that either I remove the webpage and all mention of him, or that I de-identify him on a permanent basis while I believe that I have a right to tell my true story and am not willing to do either of the things that Barrister ABC demands – clearly there was no room for any give or take. Even if I was willing to give a bit, he was clearly not) – regardless, in spite of my frequent requests for him to commence the mediation process, he not only didn’t do so, but refused to even respond to my requests.
I contacted Schofield and told him that I didn’t know the rules of the game he was playing, and asked if he would give me the rules so I could play along. This was actually not a true statement for me to make to him because I don’t play games – to me this is an extremely serious matter. Perhaps that’s the difference between us, because it is my opinion that, having brought the action against me, Barrister ABC, Schofield and Fernando were not taking it seriously and they were treating it as a game – surely that is contempt of court and an abuse of the court’s processes.
Amazingly, the order set the date for trial over 19 months out: 17 April 2023.
As said, dates requiring action came and went without Barrister ABC complying with the orders (sadly no surprises there). I filed and served a summons against Barrister ABC because he was in disobedience contempt of the orders and, when asked abut his position for not having complied with the orders in relation to the further and better particulars and the question of discovery, the unbelievable reason he gave was:
We haven’t even – we’ve got a trial in 2023. We’re now in the process of filing an application for summary judgment. We haven’t closed the pleadings. Now, again, we’re reluctant to engage with [her] given the toxic nature of the relationship, but there’s no need to provide discovery until we know the end of the pleaded case.… So certainly in terms of discovery, that’s off, as indeed is mediation. These things happen from time-to-time.[7]
So, he thereby admits that he authorised his solicitor to sign consent orders which contained a specified timetable when he knew that he would not be complying with the resultant orders! He claims that he had not closed his pleadings yet expected me to provide a defence on a moving target. If he hadn’t closed his pleadings he meant to either just add more pleadings with out court permission or to amend his statement of claim when he has been given the opportunity to do so and had declined to say what he was proposing! If he had intended to actually be honest about it he could have said to the court that it was too early to set the schedule – but he chose disobedience contempt as the appropriate way forward. Sadly the court unbelievably just let him off the hook – no wonder he seems to believe he can get away with almost anything.
I had only told the truth and had actually been very circumspect in what I said about Barrister ABC. I had stated what Barrister ABC did and said, and I didn’t embellish it and did not make any of the very valid comments I could have made about my view of his integrity in doing what he did – yet he and his legal team made such horrible disparaging claims about me that had no validity, and did so without qualm.
Barrister ABC couldn’t make up his mind: he said that I defamed him by saying that he didn’t use his forensic decision-making skills because he had only acted under instructions, yet conversely he claimed it was defamatory of me to say he did use his own decision-making skills when he did what he did and said what he did. I simply can’t win – how can you win against such what I personally consider to be “irrational” thinking?
Barrister ABC lied at some level in much of his two affidavits – he did so knowingly and in spite of his affidavits clearly specifying that to do so was perjury and he would be subject to the penalties of perjury. The Crimes Act says that to lie in under oath or affirmation, whether verbally or in writing, is perjury, yet, as an officer of the court and who the court trusts to be honest, Barrister ABC obviously believed it was a fine and acceptable thing to do in order to get the result he wanted. I really don’t understand this attitude.
In thinking about it and the fact that they didn’t want to actually run a case against me (Barrister ABC and his legal team just wanted the court to cower and agree to give them what they wanted without having heard evidence or following due process), perhaps they actually want a dismissal so that they don’t have to run the case and they don’t have to ask to have it withdrawn – that way they are fooled into believing they can save face (just a hypothesis of mine, but as if that could happen anyway).
By telling the truth, proving I told the truth, and clarifying issues, Barrister ABC, Schofield and Fernando accused me of being malicious! Of course they would say that because the truth was bringing their case undone.
Although Harrison only did one cameo appearance and that was to insist in the outline of submissions that he and Fernando created, that the case was actually about, and only about, injurious falsehood (i.e. not defamation):
The claim is based on the tort of injurious (or malicious) falsehood. … The plaintiff must establish: (1) a false statement of or concerning the plaintiff’s goods or business; (2) publication of that statement by the defendant to a third person; (3) malice on the part of the defendant; and (4) proof by the plaintiff of actual damage (which may include a general loss of business) suffered as a result of the statement.[8]
Barrister ABC then continued his swinging from defamation to injurious falsehood claims – whichever suited him best on any given day at any given moment. He even said that he didn’t have to choose which cause of action he was relying on at any given time, that he could use them alternatively if he so chose to do so (remembering that both Barrister ABC and Schofield claim to be specialists in defamation):
The statement [of] claim is split into two courses of action which are in the alternative. I don’t have to elect at this stage as to which I’ll be relying on. But the first course is defamation. Now defamation damages are at large so I don’t need to prove anything. And injurious falsehood. There is case law to say where the person making the falsehood is actuated by malice, again you don’t need to prove loss. But ordinarily with injurious falsehood you would have to do that. That’s not my intention to do that here. I don’t have to.[9]
- and they did swing between the two as suited them at any given time. And they wondered why I found it impossible to mount a proper defence: every time I moved one way they swung the other, and around and around we went!
So, when it came before Dixon J on 9 November 2021 for Barrister ABC’s next attempt at a permanent injunction (still without the court having heard any evidence or testimony), without being quite that blunt, Dixon J fully and carefully explained the fact that Barrister ABC, Harrison, Fernando and Schofield clearly had absolutely no idea what they were doing by claiming injurious falsehood:
There has been a lot of talk that I can see in the documents in relation to the case so far about injurious falsehood as a cause of action. I don’t know why that’s so. It’s not raised on the pleadings. It’s a complete red herring.[10]
Because my view at the moment, subject to any submission that [Barrister ABC] wants to put to me, is that that concept is misconceived.[11]
[I]f [Barrister ABC] wants to maintain a proceeding in injurious falsehood, we will go back to the start and he can amend his statement of claim to properly raise the question of injurious falsehood and he can take on-board the way that that affects who is required to prove what is false and what is not and who is malicious and who is not and what damages have been suffered and what is not because between the two proceedings, those issues are quite different.[12]
[T]he court’s approach is not to listen to what’s said about things but to read what the documents say. The claim that’s before the court is the claim that’s set out in the statement of claim. … And the court won’t allow at the trial the parties to wander off and contest other and different matters. You will be confined to what is stated.[13]
[I[t ought to be clear to anybody reading that statement of claim that it does not make out a claim for injurious falsehood. And if it was put that it did, you’d be entitled to ask that that claim be struck out. It’s embarrassing.[14]
I offered [Barrister ABC] the chance to do that, but he now says, ‘No, no, it’s just defamation.’ So in my view, the authorities are pretty clear that in order to prove a case of injurious falsehood, you have to allege actual damage suffered as a result of the malicious statement. Now, this doesn’t allege actual damage.[15]
Technically, he is bound by what he says in his statement of claim. He knows that. And he is telling me now, ‘I’m not relying on injurious falsehood. There is no injurious falsehood in there.’ That’s the position.[16]
So we had Barrister ABC adamantly claiming “I’m certainly not pursuing injurious falsehood” (in spite of definitely and absolutely and provably having done so; and his Honour missed the fact that Barrister ABC clearly kept his options open when he continued “and not for the purposes of today, Your Honour”, meaning that away from Dixon J’s oversight Barrister ABC would most likely continue with the injurious falsehood claims (this continued Barrister ABC’s attitude of “Your Honour, we do maintain the position that the statement of claim pleads both causes of action, namely defamation and injurious falsehood”[17] and his ability to swing between the claim that defamation and injurious falsehood are in the alternative, not that he is claiming both [emphasis mine]: “The statement claim is split into two courses of action which are in the alternative. I don’t have to elect at this stage as to which I’ll be relying on.”)[18]
And this is just a very small sample of what I had to deal with!
Barrister ABC also made it very clear that, regardless that Dixon J had given me an opportunity to file and serve a new defence, he was never going to approve it. Dixon J and Barrister ABC had the following conversation about it:
Dixon J: [Y]ou say that it doesn’t matter how many chances the court gives [her], she is just not going to be able to particularise a defensive truth?
Barrister ABC: That’s correct, your Honour.
As if Barrister ABC was ever going to approve it no matter how good it was.
Dixon J suggested that we negotiate a deal to finalise the matter. So I made an offer to remove the webpage about Barrister ABC, to not replace it with anything that could identify it as being about him, to ensure that any other reference to him in the website was non-defamatory, that I would not seek costs or counterclaim against him – all on the proviso that he did not seek damages or costs from me, that he withdrew his action against me, and that he agree to the order made before Gorton J (the temporary de-identification) be withdrawn. On the 14th day he rejected my offer and said that he countered with an “offer” that the order of Gorton J be made permanent and that he would not claim costs. He also said that he would not claim the two lots of costs awarded against me, although this was not an official part of his “offer”. I said I wanted to see the actual consent orders he was suggesting but then thought that he wouldn’t supply then so I took the initiative to write them up. I also added that I wouldn’t counterclaim, he couldn’t claim damages (he had told the court as fact that he wasn’t claiming damages anyway) and, because he was being de-identified, that he couldn’t sue about what I said in relation to him as the de-identified person. He rejected this offer – this proved to me the accuracy of my suspicion that he had another agenda altogether.
All of this and the basis of it all is that he claimed that he didn’t write the letter, that he was just acting under instructions. However, I had said in the webpage about him that he had written the letter under those exact instructions, so his claim against me was not only inaccurate, but was, in my personal opinion, knowingly fraudulent.
We finally settled the matter, although it is a shame because Dixon J had made it clear that I would have had to tell the court, inter alia, how Barrister ABC is a dishonest barrister. Because I am allowed to keep the webpage now permanently named “Barrister ABC”, and Barrister ABC has clearly stated that he doesn’t care what I put on that page, I have added the information there.
Some of the main things I have learnt through this episode is:
- don’t be reactive, be proactive, and
- read what they say and understand what they don’t say.
It would all have gone very differently if I had done those things at the beginning instead of at the end when it was too late because we settled the matter.If anyone else sticks their hand up to take action, I’ll certainly take those things on board.
[1] An admitted acronym for “Crush Any Shit And Call It Rock” and that it was well known throughout the industry– I really wonder why anyone would want to buy rock from them knowing the name!
[2] T1:29-30 (26 May 2021)
[3] T2:1-2 (26 May 2021)
[4] T2:3-23 (26 May 2021)
[5] T4:4-8 (31 May (2021): “a search of that firm will reveal [Barrister ABC]s name. If a search were to be done of either the Supreme Court or the County Court, it would likely reveal Mr Barrister ABC’s name as appearing on various pleadings and documents within those courts”.
[6] T9:6-19, 23-24 (31 May 2021).
[7] T29:8-22 (13 October 2021 before Baker JR)
[8] Barrister ABC’s outline of submissions dated 25 May 2021, prepared by Harrison and Fernando.
[9] T12:21–T13:1 (13 October 2021 before Baker JR)
[10] T3:1-5 (9 November 2021)
[11] T4:2-2 (9 November 2021)
[12] T9:28–T10:5 (9 November 2021)
[13] T41:22-29 (9 November 2021)
[14] T41:31–T42:4 (9 November 2021)
[15] T42:10-16 (9 November 2021)
[16] T42:14-17 (9 November 2021)
[17] T10:2-6 (Mr Harrison acting for Barrister ABC on 31 May 2021 before Gorton J).
[18] T12:21-24 (Barrister ABC before Baker JR on 13 October 2021).