Caught by surprise

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.

The letter dated 19 August 2011

Southall entered the letter dated 19 August 2011 into submissions, addresses, examinations and cross-examination in spite of it not having been entered into evidence. There had been no notice[1] that this letter would become an integral part of their case or that they would rely upon it other than because of its existence. I was totally caught by surprise by this and had therefore not had the opportunity to prepare. In that letter were considerable false claims and denials, and the use of them as being real (contrary to fact and truth), caught me entirely by surprise. Southall’s further additional false claims in relation to that letter during the trial were horrendous, and I was unable to prepare for them also. The details of that letter are in the relevant webpage. 

The claims against me that were not pleaded in their documents

There were a number of matters brought into the proceedings that failed to meet the criteria of r.13.10 of the Rules, and thereby caught me by surprise. The Supreme Court (General Civil Procedure) Rules 2015 also state [emphasis mine]:

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, false intention or other condition of the mind, including knowledge or notice— 

which is alleged.

Man X, man Y and their team failed to provide the particulars of matters in relation to their false claims about my motives and conduct that subsequently caused me extreme surprise and thereby limited my ability to plead a defence to those issues or to properly prepare or to define adequate questions regarding those issues.

The delay in particularisation being used against me

As noted in r.13.10(1) and (2) above, man X, man Y and their legal team were required by law to provide the particularisations of their complaint. However, they deliberately delayed their particularisations as a whole and thereby cause me great surprise, great problems, and an inability to properly prepare. 

Other than false claims and denials in the letter of 19 August 2011, it did not particularise the words that were purported to be defamatory, and this was belatedly admitted – in spite of having falsely claimed before Pagone J that the letter did particularise what it required. Further, man X, man Y and their team used their deliberate delays against me. What they did was extraordinary and false and caused me significant surprise – the details are exhibited in the relevant webpage.

My apology

Man X, man Y and their team, especially Southall, exhibited an unwavering attempt to cauterise (and defame) me by repeatedly introducing the issue of my apology: he vacillated about the quality of my apology, and made many false claims regarding it and, as a result, I was caught entirely by surprise. Details are revealed within the relevant webpage.

The surprise caused by the false claims that the words on the website were false, entirely false, without foundation and/or were baseless

Man X, man Y and their team filed and served a notice of appeal and submissions in 2013 in their appeal of damages. In those documents, together with their addresses, they falsely made the entirely new claims that the website publications were false, entirely false, baseless and without foundation.

These false claims were made in the face of the knowledge of the accuracy of the publications, not their purported falsity. Such claims evidenced further unconscionable and absolutely deceptive conduct. Thus, they misled and deceived the court by not having a proper basis and making false claims regarding the website. They knew that if they had been honest, their case would have been thrown out and they would not have been granted damages or interest or costs, and would have had to pay my costs instead. Being caught by surprise I was unable to properly address the issue. The details of that failure to particularise those claims against me are in the relevant webpage.

The change in the claims of aggravated damages during the appeal process

I was caught by surprise by the change in the claims for aggravated damages in the trial compared to the appeal. There were issues that were dropped in the appeal (thereby proving that they were false in the case before Pagone J), and entirely new ones added (without requesting or obtaining the court’s permission). As a result, I was unprepared for this. Some of the details of their failure to particularise the claims against me are as follows.

I was caught by surprise by the change in the claims for aggravated damages in the trial compared to the appeal:

  • Their notice of appeal stated that: 

5(a) the … remarks were part of an overall campaign brought by the [me] that was calculated to “make things as difficult as possible” for the appellants;

5(b) the … remarks were entirely false and had no foundation;

5(c) the … remarks were published on a publicly available internet site for between five and seven months;

5(d) that [I] continued to add .. remarks after [man X and man Y’] solicitor had written to [me] complaining about defamatory aspects of the website;

5(e) [I] had continued to attempt to justify the … remarks throughout the hearing;

5(f) [I] attempted during the trial to construe words plainly intended to allege that [man X] had deliberately or intentionally lied under oath or intentionally lied under oath as meaning something otherwise and failed to apologise until the conclusion of [my] closing submissions.

  • In relation to 5(a), they removed the previously pleaded overriding purpose that had been stated in their statements of claim: “…her motive to cause ongoing injury to the Casacir quarry operation, in order to pressure Casacir to acquire the Shapher land from Shapher, alternatively [the defendant], at an inflated price. [the defendant’s] intention to pressure Casacir to acquire the Shapher land at an inflated price is evidenced by verbal and written communications between her and representatives of Casacir between approximately 2006 and 2010”. Ether way it was false but, by removing those words they completely changed their claim (proving that the motives they had attributed to me in trial were no longer claimed against me) and I was not able to properly prepare for the changed claims.
  • In relation to 5(b), this was a totally false claim (and knowingly so), and is further addressed in the relevant webpage.
  • In relation to 5(c), as pointed out previously, they did not particularise anything (other than false claims and denials) until February 2012 and the words were removed immediately they were particularised.
  • In relation to 5(d), it is the letter of 19 August 2011 to which they refer – it should be no surprise as to why I disregarded all the false content within the letter, yet have used it against me repeatedly, including in their notice of appeal. The letter is addressed in the relevant webpage.
  • In relation to 5(e), firstly, the words were true so to justify them is acceptable, and secondly, they had not been found to be defamatory at that time, and were only found to be defamatory due to the plaintiffs’ and their team’s false misrepresentations.
  • In relation to 5(f), there are three issues here:
    • Man X did lie under oath – he did so at repeatedly VCAT and he continued to do so at court;
    • I had not tried to imply that lying under oath was anything but lying under oath – it is man X, man Y and their team who made light of it and made their lies to be anything but, including that they were trifling and small matters with which the court should not bother itself[2];
    • The issue of my apology is detailed in the relevant webpage – but to reiterate – the apology was given on the very first day of my submissions.

None of those claims were as pleaded before Pagone J, and those changes gave a false footing for the appeal. I was surprised and unprepared for them, especially with a court appointed barrister who refused to address issues that were not strictly points of law, regardless of instructions.

The real reasons for the action against me (making the defamation action additionally false)

  1. One of the real reasons for the action against me was revealed during the trial, namely that the purpose was to have the entire website removed from the internet, and I was entirely caught by surprise. Another real reason for taking the action was admitted to be for the purpose of gaining access to my assets[3]. The third real reason was the need to get rid of me as soon as they could because I had the power to stop the quarry. I was totally unaware of any of those reasons at the time of the trial – therefore I had not had time to prepare for them and wasn’t fully conversant with the importance of them until after the trial had finished.
  2. It is clear from this that the very core of man X and man Y’ case against me was, at best, false, misleading and deceiving, and caused me to have to pay them many hundreds of thousands of dollars in damages, interest and costs. By acting in that grossly deceitful manner, in addition to being utterly false conduct, it was clearly an abuse of the court’s processes and revealed a gross and flagrant contempt of court. Their duplicitous actions caused a 7-day trial, in addition to appeals and action to be taken against them under s29 of the CPA. The more detailed information is in relevant webpages.

The defamatory and unwarranted and unsubstantiated attacks on my character

As identified previously, man X, man Y and their legal team had the clear onus to clearly identify any misrepresentation, fraud, breach of trust, willful default or undue influence, disorder or disability of the mind, malice, false intention or other condition of the mind, including knowledge or notice which they alleged against me. Hardly surprisingly, they did not comply with the Rules (because they could not) and did not make the majority of the required allegations in their pleadings. Thus, they greatly surprised and shocked me by their proliferation of false submissions, comments and allegations during the hearing, and thereby not allowing me to prepare any of the defences to which I was entitled. Further the accusations (made mostly by Southall) were defamatory, as well as being entirely unwarranted, unprofessional, snide, nasty, unfounded, hurtful, embarrassing, and were entirely unsubstantiated – and such diatribes are available to anyone who reads the transcripts or even the judgments. The details of that failure to particularise the claims against me are in the relevant webpages.

The repeated intrusion of other matters and issues not pleaded in any of their statement of claim 

In addition to the fundamental and underlying issue of wrongful intent on the scope of the case (i.e. it has been clearly identified that man X and man Y falsely made the removal of the entire website one of their core intentions), Southall repeatedly went well beyond the pleadings as articulated in the statement of claim ventilated at court, and he did this in spite of his Honour again and again making it absolutely clear he was not to do so. Details are within the relevant webpages. All that, and more, caught me by surprise and I did not have the time to prepare to fight it or prepare any defences against it.

Intimidation and bullying

Perhaps I should not have been surprised by their endeavours at intimidation and bullying in relation to the court proceedings given the previous prolific attempts at intimidation and bullying at community meetings, and by man X in his car (he blocked the narrow road on a number of occasions so I could not get past). Nevertheless, I had thought that in a legal proceeding they would conduct themselves with proper dignity and professionalism and would not stoop to such low tactics – I was entirely mistaken. However, I was totally surprised, devastated and horrified by their intimidating conduct and had not been able to prepare for it, or even to fully understand what they had done until afterwards when looking at the evidence. The details of their attempts to intimidate me are in the relevant webpages.

Caught by surprise at VCAT by the introduction of letters

What happened at VCAT was repeatedly brought into the defamation case by man X, man Y and their legal team. 

I had naively believed that the reason they were at VCAT was to have the issues of the accusations made against CASACIR heard. However, without warning or discussion and certainly with no permission, Peake[4] handed up letters from me (generally sent through my company, Shapher), that related to the offers of sale of the Shapher land (based on man X’s offer in 2005). Some of the letters were marked “without prejudice” and/or “in confidence”, therefore denying him the right to show them at all. For some reason, my barrister, Robert Sadler (Sadler), failed to refuse permission for them to be adduced into evidence, and I had no idea as to the ongoing false way the letters would be used, including by their subsequent introduction into the defamation proceedings (where Sadler also allowed the letters to be produced).

The purpose of sending the letters was threefold:

  • the first was that I and my related parties did not want to be near a quarry, especially one which had indicated so early on that it would not be complying – and which certainly did not comply; and 
  • so that I and my related parties could move away and not have to fight for our legislated rights – rights which the plaintiffs were ignoring, and were in fact trying to illegally remove; and
  • so that CASACIR could buy the property if it wanted to do so (following its (false) assertions that it would do so if someone wanted to sell because they did not want to be near the quarry), and thereby not be subjected to a neighbour fighting for her legislated rights.

Man X and man Y and their team used the letters to sidetrack the enforcement hearing and to falsely make accusations against me that stuck. In addition, because of their false claims, they gained significant costs (in excess of $100,000) for the hearing and appeal, and the impacts of their false misrepresentations also carried through to the subsequent court cases by polluting them.

The introduction of the letters into VCAT caused great surprise and I was not able to prepare for them. 

Caught by surprise at VCAT by the production of a document during CASACIR’s testimony

Discovery of documents had to be completed no less than business 10 days prior to the hearing. The order of member Potts provided the requirements of the practice note:

  1. It will be sufficient compliance with the requirements of Clause 4.2 of Practice Note PNPE-1 General Procedures for parties to file and serve the specified number of affidavits, reports or statements containing the evidence in chief of any witness, whether lay or expert, upon whose evidence they intend to rely at the hearing upon the following persons (as relevant):
  2. file 2 copies with the Tribunal;
  3. serve 1 copy on the Responsible Authority; and
  4. as appropriate for each party:
    1. serve 2 copies on Country Endeavours;
    1. serve 2 copies on Cascair Pty Ltd; and
    1. serve 2 copies on the Department of Primary Industries.  
  5. 2   Any such material to be filed and served must be filed and served 10 business days before the commencement date of the hearing.

As was typical, most of the documents were not served on me on time (ignoring yet another VCAT order), and the document in question was not served at all.

Man X’s evidence (made on behalf of CASACIR and with the full support and agreement of man Y) was on the last day of the hearing in the afternoon. Without warning, discussion, discovery or service in any form at any time prior, mid-way through man X’s evidence, Peake handed up a document that changed the entire hearing and for which neither I nor sadler had had any time to prepare.

This document was purportedly[5] a photocopy of a site diary produced by a staff member at the quarry; it also purportedly had entries by a neighbour who was said to be cutting hay at that time. Not one of the people who had supposedly made those entries was brought in to testify and not one produced an affidavit admitting that the entries were by them – therefore proving it was unreliable hearsay evidence.

Man X confessed to not knowing when the document was received (definite dates were given, but which were dates that were subsequently admitted to be such that it could not have had the document), although it did testify that it had had it for some time (proving it was clearly in breach of the order by member Potts). 

There was absolutely no reason to have deliberately withheld it from me when man X and man Y received it; there was absolutely no reason to have deliberately withheld it from me at the start of the hearing; there was absolutely no reason to have deliberately withheld it from me on the second day or the third day or the fourth day of the hearing; there was absolutely no reason to have deliberately not put it me during my sworn testimony; there was absolutely no reason to have deliberately withheld it from me on the fourth day or on the morning of man X’s testimony or even before lunch just before its testimony – there was absolutely no reason except that it gave them the surprise factor and thereby the upper hand, and caused me to be severely disadvantaged. 

As stated, that document assisted the letters in turning the entire case around from what they had or had not done, ignoring their multiplicity of breaches, to making them falsely appear to be the good guys – but that is what unconscionable and false conduct does.

In addition, this is the continued type of attitude and conduct that man X, man Y and their legal team have exhibited, and why I have been so wary of them and aware of their behaviour.

Summary

There were many issues that were brought before the court and VCAT which caught me by surprise and for which I was given no time to prepare. The majority of these had significant false content, and all were part of the process of swaying, misleading and deceiving the tribunal and the court, obtaining an judgment of defamation, and an award of significant damages, interest and costs – totalling many hundreds of thousands of dollars – by what I contend is their prolific unscrupulous and false conduct.


[1]   It was not listed as a relevant document in any of the 7 iterations of their statement of claim, or in their further and better particulars.

[2]   A reference to the submissions before Santamaria, Kyrou JJA and Elliott AJA on 11 October 2016

[3]   According to the bill of costs dated March 2017, at item 318

[4]   Under instruction of KSA, Smith and Kraan

[5]   But was not certified as such