I have observed that Southall misled the Court and his Honour by stating, as absolute fact, that there had not been the seven iterations of the man X and man Y’s statement of claim:
I should say your Honour, whilst Mrs Giles has been talking about six pleadings – it’s nothing like six pleadings. There were some different dates on them which we’ve determined, but I think it’s three – more like three, perhaps four …[1]
They continued this line of deceptive denial subsequent to the hearing:
There is no substance to [her] complaints about the statements of claim …. There were three, not six, filed versions of the statement of claim, the last of which implemented the discontinuance of the injurious falsehood and misleading and deceptive conduct claims.[2]
This is a gross and deliberate misleading submission because Southall made it in spite of them having knowingly and deliberately served me with statements of claim dated 29 November 2011, 20 February 2012, 2 March 2012, 22 November 2012 (this iteration was served on this date but was actually erroneously dated 21 December 2012), 23 November 2012 and 20 March 2013 – that is 6 iterations (and does not include the 7th iteration (dated 2 April 2013) which was pleaded at Court, but was not at any time served upon me), and Southall and Kaye settled each and every one of them. Southall actively tried to hide the fact that there were 7 iterations by submitting that “There were some different dates on them…”.
The first statement of claim was dated 29 November 2011 and was served on me on 15 December 2011.
The first amended statement of claim (dated 20 February 2012) had the additions of tab numbers against each pleading and materially amended the particulars of pleadings 26, 27 and 28.
The second amended statement of claim (dated 2 March 2012) had pleading 9A added, had pleadings 24 and 31 materially altered and further materially amended the particulars of pleadings 26, 27 and 28.
The third amended statement of claim (erroneously dated 21 December 2012 but served on 22 November 2012) had sections “C” (Injurious Falsehood) and “D” (Misleading and Deceptive Conduct) crossed through, and in the “prayers for relief”, the section relating to CASACIR had also been crossed out – the crossing out (falsely) indicating that those claims were no longer valid and had been withdrawn and discontinued.
The fourth amended statement of claim (dated 23 November 2012) had sections “C” (Injurious Falsehood) and “D” (Misleading and Deceptive Conduct) crossed through, and in the “prayers for relief” the sections relating to their pleadings from 16 onward were crossed out in addition to the entirety of those relating to CASACIR – the crossing out (falsely) indicating that those claims were no longer valid and had been withdrawn and discontinued.
The fifth amended statement of claim (alternatively dated 20 and 21 March 2013) had pleading 9B inserted and had removed the entirety of pleadings 7 through to 31 and the previously related prayers for relief.
The sixth amended statement of claim (alternatively dated 25 March and 2 April 2013) had the footer removed.
Each iteration bore the names of Mr Southall, Ms Kaye and Ken Smith & Associates as having created, altered and/or settled each and every one of the iterations.
I have observed that man X and man Y and their team specifically denied the existence of the amended statement of claim served upon me on 22 November 2012:
The appellants do not believe there is a further amended statement of claim of this date.[3]
This is in spite of having handed that same document up to his Honour, Justice Beach, on 23 November 2012:
Can I hand up to Your Honour a copy of the proposed amended pleading and just take Your Honour through it.[4]
His Honour even identified further mistakes in that amended statement of claim, requiring a yet further iteration:
Page 43 of your amended statement of claim, Mr Southall, requires further amendment. It would seem that a line should be put through “Pursuant to Paragraphs 26 to 31 and prayers for relief (d) and (e). … And the heading pursuant to Paragraphs 9 to 25 needs to be amended to nine to 16 it would seem.[5]
This further proves its existence, in spite of their false ongoing refusal to admit to it.
I observed that they repeatedly denied the existence of the amended statement of claim dated 23 November 2012 [emphasis mine]:
In light of the Judicial Registrar’s determination with respect to documents 52, 53 and 55, the appellants also query the retention of document 54 (now document 46) [the further amended statement of claim that was dated 23 November 2012 and served upon me on that date], being an [sic] superseded version of the statement of claim that was never filed.[6]
This (yet) further amended statement of claim (dated 23 November 2013) states unequivocally across the page above the tram-tracks[7] [emphasis theirs]:
FURTHER AMENDED STATEMENT OF CLAIM
(filed pursuant to the order of the Honourable Justice Beach made on 23 November
2012)
If this iteration was not filed with the Court, then they lied and misled and deceived me when they served that iteration of their statement of claim which contained that assertion.
Further, for them to subsequently admit that they had not filed the further amended statement of claim is to admit to that, having requested permission, and having received the Order, to yet further amend their statement of claim[8], nonetheless failed to do so in accordance with r36.02.
36.02 Failure to amend within time limited [emphasis mine]
An order giving a party leave to amend a document shall cease to have effect if the party has not amended the document in accordance with the order at the expiration of—
(a) the time limited by the order for making the amendment; or
(b) if no time was limited, 21 days from the date of the order.[9]
They claimed that there was no further amended statement of claim filed until 2 April 2013, being 130 days. Therefore, the Order ceased to have effect and they could not produce a further itereation.
They denied the reality of the yet further amended statement of claim dated 20 March 2013, which means that they actually maintained the injurious falsehood and misleading and deceptive conduct causes of action purportedly until 2 April 2013 – just 8 days prior to the commencement of the hearing (in breach of the law).
Further, the real effect of not having filed the 23 November 2013 further amended statement of claim means that, being out of time, the case was improperly run because the injurious falsehood and misleading and deceptive conduct claims could not be removed, and had to be run, which they were not – when I say “not” they were run covertly, but not openly.
The Court then should have determined that this was a mistrial. Truth would have had to be heard if the hearing was to have been run including their untruthful injurious falsehood and misleading and deceptive conduct claims. If it was a mistrial then the costs of that hearing are subject to payment by man X and man Y.
However, if they changed their mind and admitted to having filed this iteration, then by doing so they would have admitted to at least twice lying to the court in saying they had not filed it!
In addition, in spite of having ignored his Honour’s Orders of 23 November 2012, by the claim that this document was not filed, they were attempting to negate the fact that it was served, and were therefore deceitfully denying that costs did apply.
I observed that they repeatedly denied the existence of the amended statement of claim dated 20 March 2013. It is interesting to note that a slip of the tongue by Southall confirmed the existence of the 20 March 2013 iteration:
It’s underlined, hopefully underlined in the 20 March document ….[10]
Man X and man Y changed this iteration handed up to the court, without discussion, identification or notification to me that they wanted to do so, were going to do so, or had done so by replacing it with the iteration dated 2 April 2013. This iteration dated 2 April 2013 was never served on me and I was greatly surprised at court to see its production:
Me: The plaintiffs have served on me no less than six different statements of claim. I say that’s an abuse of process. They can’t seem to work out what they are claiming. Apparently, the latest one is dated 2 April. I don’t have one dated 2 April, I have one dated 20 March.
Southall: It’s the same.
Me: Yes, but you know, I don’t know that, I haven’t seen it.[11]
Further, they removed reference to this iteration from the draft agreed note of proposed contents of appeal book and inserted, instead, the proposed (draft) iteration dated 14 March 2013. To have done so was shameful and misleading and deceptive conduct.
They continued to be deceptive and misleading regarding the service of the number of iterations of the statements of claim:
We have included the three statements of claim you allege were served on you and caused you increased costs ….[12]
To say that I “alleged” their service is to imply that the documents did not exist, when they provably did and this is, in addition, both deceptive and misleading.
Man X, man Y and their legal team were, at best, confused by the number of iterations of the statements of claim they filed and/or served. This confusion showed when Southall made submissions to his Honour, Justice Beach, on 23 November 2012:
[The] 1st and 2nd plaintiffs file a further amended – that should read “Amended” statement of claim to reflect the matters – no, to further amend the further amended statement of claim to reflect the matters in Orders 1 and 2 hereof.[13]
The document produced to the court on that day (and served upon me the day prior) was, as Southall finally identified, a furtheramendment to the already further amended iteration. His statement proves that there were at least the original iteration, the amended iteration and further amended iterations – that is 3 iterations prior to the one handed up. Although subsequently denied, this was further admitted by Southall before Justice Beach [emphasis mine and note the plural]:
… the claims were issued, the statement of claim was annexed to the writ, and the further amendments occurred.[14]
I observed that, in spite of the number of times that they attempted to get their pleadings right, they had still failed because Southall tried on the very last day of the trial, during his submissions, to alter their statements of claim yet again because his Honour would not allow them to go beyond their pleadings:
His Honour: It may be, but it’s not in your pleading.
Southall: Your Honour, what, do we amend our pleading to put that in? …
His Honour: Well, it’s not in the pleading.
Southall: Well, I apply to amend the pleading to include that as a particular to paragraph 15.
His Honour: I’m not going to give you leave at this stage. That’s a very substantial change and it could have brought a completely different approach to the way the case was conducted.[15]
It took his Honour to bring the attempt to an end:
His Honour: You’ve identified what it is you rely upon in good faith, and this litigant has come to court to argue that case.[16]
I observed that the number of their statements of claim was totally unnecessary.
The requirement is clear that the pleadings had to be clearly particularised, and they were not. s3 of the CPA states that [emphasis mine]:
(b) (ii) a statement sufficient to give, with reasonable particularity, notice of the nature of the claim, its cause and the relief or remedy sought
Rule 13.10[17] states:
13.10 Particulars of pleading
(1) Every pleading shall contain the necessary particulars of any fact or matter pleaded.
(2) Without limiting paragraph (1), particulars shall be given if they are necessary—
(a) to enable the opposite party to plead; or
(b) to define the questions for trial; or
(c) to avoid surprise at trial.
(3) Without limiting paragraph (1), every pleading shall contain particulars of any—
(a) misrepresentation, fraud, breach of trust, wilful default or undue influence; or
(b) disorder or disability of the mind, malice, fraudulent intention or other condition of the mind, including knowledge or notice—
which is alleged.
However, in spite of the legislative requirements, the first statement of claim, dated 29 November 2011, did not contain any “reasonable particularity” of what they were claiming. Hence the requirement for the iteration dated 20 February 2012, which was the first time there was any particularity – and even that had to be demanded by my then legal team.
The (yet) further amended statement of claim dated 2 April 2013 was the iteration that was ventilated before his Honour and the court and therefore was the only one that should have been able to be claimed by man X, man Y and their legal team as relevant. Therefore, every one of the preceding iterations was totally unnecessary and a waste of the court’s and my resources and time, and was an abuse of the court’s processes and my money.
If they could not get their statements of claim right, then they should have had to pay my costs of such mistakes, negligence and gross ineptitude [emphasis mine].
63.17 Amendment
Where a pleading is amended (whether with or without leave) the costs of and occasioned by the amendment and the costs of any application for leave to make the amendment are the parties’ costs in the proceeding, unless the Court otherwise orders.
They served upon me no less than 6 iterations – not one of which was the iteration that was ventilated at court[18]. Therefore, they should have had to pay all the costs incurred by me in relation to each of those iterations. Rule 63.70 is clear, it states:
63.70 Unnecessary or careless work
(1) The Court by order or the Costs Court on a taxation may disallow the costs of any work which is not necessary or is done without due care.
(2) Where a document is of unnecessary length, for the purpose of paragraph (1) work which is not necessary shall include work for that part of the document which is not necessary.
(3) A party whose costs for work is disallowed under paragraph (1) shall, unless the Court or the Costs Court otherwise orders, pay costs for any work by another party occasioned by the work for which the costs were disallowed.
Further, because they were so inept, and continued to have to amend their claims, costs should have been be awarded to me on an indemnity basis – yet McDonald J failed to require them to pay anything (see the page that relates to McDonald J).
[1] T411:22-26.
[2] The plaintiffs’ submissions in relation to their appeal (S APCI 2013 0120) and they only note the statements of claim they admit to (dated 29 November 2011, 2 March 2012 and 2 April 2013).
[3] The “20140514 – their comments on disputed items in appeal – application book.
[4] T2:15-17 (23 November 2012).
[5] T4:20-T5:5 (23 November 2012)
[6] Email from Marcus Schivo of man X and man Ys’ solicitor’s office, to the Court, dated 21 May 2014, copy received by me at 9:39am.
[7] The iteration served 22 November 2012 (erroneously dated 21 December 2012, and produced before his Honour, Justice Beach, on 23 November 2012) also has the identical heading above the tram-tracks.
[8] See Order dated 23 November 2012, at [1], [2] and [3].
[9] Supreme Court (General Civil Procedure) Rules 2005
[10] T50:20-21
[11] T126:30 – T127:7
[12] Email from Marcus Schivo of the appellants’ solicitor’s office, dated 13 May 2014 and received by me at 2.06pm.
[13] T2:9-13 (23 November 2012).
[14] T3:3-6 (23 November 2012).
[15] T543:21–T544:1,
[16] T545:13-15
[17] Supreme Court (General Civil Procedure) Rules 2005
[18] The (7th) iteration was not served upon me, but was dated 2 April 2013 and was the one ventilated at Court.