The letter of 19 August 2011

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 of 19 August 2011 containing prolific falsity:

  • was constructed (under the forensic decision-making skills) and authored by Barrister ABC (a short-term pseudonym required by court action), according to him, under the instructions of Smith (and ultimately under the instructions of man X and man Y);
  • was authorised by man X and man Y and each approved of all the erroneous contents of the letter;
  • was produced and sent to me by Smith under the instructions of man X and man Y;
  • was used prolifically by Southall with the approval and authorisation of man X and man Y[1] during the trial and appeals in a grossly false and misleading manner – clearly man X and man Y were deeply involved in the decisions as to what would be produced in addresses and submissions and what evidence would be produced and used.

The letter contained a considerable number of deliberate and knowingly erroneous claims and denials masquerading as truth – the purported “defamatory” material the letter complained of was all lies: e.g. Barrister ABC and Smith (Barrister ABC and Smith may not have known the fraudulence of some of the claims), on behalf of man X and man Y claimed:

1. that it was defamatory for me to write on the website that CASACIR sold rock at a price that was not justified – however, man X publicly confessed this to a group of residents at a community meeting in 2005, and man Y admitted in sworn testimony that man X, through CASACIR, had tried to sell substandard rock to man Y’s other company, and that man Y’s engineers had had fights with man X about it:

My companies, Stabilime group, are and were major customers obviously of Casacir and the rock that we were producing or that [man X] on our behalf was producing out of Mount Speed was not the highest grade of stone. We weren’t buying necessarily VicRoads quality but it is a natural mudstone deposit and when you crush it, some parts of it tend to be softer than a basalt or a granite rock quarry and some of my engineers had some disputes with [man X] over the quality and it became known affectionately in our company as mount mud, purely internally, and we had to think of a name and I sat down one night and I certainly did come up with the acronym that is Casacir[2].

In addition, Kraan stated, as unequivocal fact in his planning report that was endorsed as fact as part of CASACIR’s planning permit, that [emphasis mine]:

3.3 The lower class products produced from this source will be used predominantly for road construction and maintenance, rebuilding of road shoulders [etc]

Kraan’s 2008 witness statement, filed with the tribunal as absolute fact, also confirmed that CASACIR did indeed intend to sell lower grade materials for roads [emphasis mine]:

4.3 The lower class products produced from this quarry will be predominantly used for road construction and maintenance, rebuilding of road shoulders [etc] 


thereby confirming that CASACIR did indeed sell lower grade materials for roads, and proving that it was not defamatory to say so in my former website.

2. that it was defamatory for me to write on my former website that each of man X and man Y (and man Y’s son) had continued to engage in unlawful activities through CASACIR – however, (1) man X, man Y and CASACIR had certainly broken the law, and had continued to do so (making it unlawful): they had blatantly and repeatedly disregarded their permit and work authority conditions; had continued to disregard the planning scheme; had illegally and without authorisation, diverted the flow of Kookaburra Creek (and refused to restore it until legal action was taken against them and then further legal action was threatened)[3]; and had taken and used water from Kookaburra Creek and the dam without a permit to take and use the water; they wantonly ignored legislation; and more; they committed fraud by signing (or authorising the singing) of a document they knew they would b=not be comlying with in the long-term; (how many more unlawful activities do you want listed?), and (2) I had never said anything about man Y’s son other than he was a shareholder in CASACIR. Therefore there was nothing defamatory in what was written in the website about these matters;

3. that it was defamatory for me to write on the website that that each of man X and man Y (and man Y’s son[4]) had ignored orders and directions of the tribunal – however, man X, man Y and CASACIR had done so[5], and done so repeatedly; with man Y effectively admitting under sworn oath in court to having done so[6]; and with Southall also admitting they had done so while trying to pretend that it was not a big deal[7]:

[The] topic of alleged non-compliance in this case with what I submit are the most ineffectual, inoffensive sorts of everyday direction orders made at VCAT into the conduct of the quarry and non-compliance with the quarry …

The reality is that the VCAT directions and orders were not deemed by the tribunal to be “ineffective or inoffensive” given that the VCAT member was so appalled at man X, man Y and CASACIR’s lack of compliance that he took enforcement action against them (with Barrister ABC representing them at one of those hearing and informing the tribunal member that a report man X, man Y and CASACIR had repeatedly refused to supply was not completed when (he says unbeknownst to him) it was completed and had been ready for filing and serving 6 weeks earlier), and then the tribunal member threatened further enforcement action for their continued non-compliance – what a vastly different attitude to that of man X, man Y, CASACIR and Southall! Further, this same conduct continued with man X, man Y, CASACIR, Smith and KSA (particularly through Schivo) continuing to ignore orders and directions of the court! Not only was there nothing defamatory in what was written in the website about these matters, but Barrister ABC had the personal knowledge of the claim he originated being an inaccurate claim when he made the accusation in the letter;

4. that it was defamatory for me to write on the website that CASACIR was the acronym for Crush Any Shit And Call It Rock – however, Southall admitted it in his address:

Casacir stands for the somewhat crude express, “crush any shit and call it rock” 


and man X and man Y admitted it under oath:

The [the acronym for the] name is certainly true.

I also told you about [the acronym for] Casacir, we can’t deny that.[8]

Which also goes back to the lack of quality of the rock. In fact, man Y proved the letter had lied when he testified[9] as follows:

Me: Is it a name that you wouldn’t want shared around?

Man Y: No, I don’t particularly care. It was in good humour that it was put together. We had to find a name, Casacir sounds fine to me and I wouldn’t have any intention of changing it. 


Me: But you don’t care who knows about it?

Man Y: It doesn’t matter whether I do or not, the industry knows. 


Me: So the whole industry knows?

Man Y: Yes[10].

Since the CASACIR acronym for the full name is admittedly known throughout the industry, and man Y doesn’t care who knows it, why did the letter erroneously say that it was defamatory for me to reveal it?

5. that it was defamatory for me to write on the website that Kraan had admitted to the acronym at VCAT – however, man X confessed under sworn oath that Kraan did tell VCAT.

Yes, that’s right, Jack Kraan did [reveal the acronym at the tribunal] and I also told you about Casacir[11]

Again, since what I wrote was true, and since it was admittedly known throughout the industry and he didn’t care who knew it, why did they say that it was defamatory for me to reveal it?

6. that it was defamatory for me to write on the website that the directors of CASACIR had distorted facts[12] and had misled the tribunal[13] – however, they had made false claims that they had not used others’ land for buffers when they were illegally doing so and it was acknowledged as a fact by their own specialists; they stated that they would only use a specific silenced drill and then admittedly and repeatedly failed to use that drill or any other such silenced drill for many months; that they would not allow dust off the site when they repeatedly did and did so in such amounts as to require a s110 Notice against them (and a number of DPI audits additionally confirmed the significant dust emissions at other times); they minimised and made false claims such as the size of the trucks only being 28 tonne and they went on to use 38-40+ tonne trucks for most of their work, (how many more instances do you need?). Therefore there was nothing defamatory in what was written in the website about these (or other) matters.

The points listed above were the purported defamatory material they stated they wanted retracted and removed – yet, as seen, every one of those denials were lies – it was therefore clearly not appropriate to chastise me for not removing the material they claimed was defamatory when it clearly was not, and when for me to remove it and write a retraction would have been for me to lie in order to cover their appalling conduct – for such a demand to be made and to be used against me by them was astonishing and bizarre.

In addition, that letter was posted to me 4 months prior to the commencement of the court proceedings[14], with a respond-by date and time that had already passed by the time and date I received it.

This letter was not pleaded in any of the seven iterations of their statement of claim, nor was it listed in their answers to my request for further and better particulars – further, not one of the claims in the letter said to be defamatory was used against me. Because the letter was created prior to the case commencing, it was not to be used in the trial or beyond. In 2016, Justice Santamaria and I had the following conversation [emphasis mine]:

Santamaria JA: What do you say about the proposition that conduct which precedes the commencement of a civil is proceeding falls outside the Act because, by definition, it’s not part of the conduct of a civil proceeding if it precedes it?

Me: I do understand that. I think there’s two issues there: that first of all, they brought it up as a focal point in the defamation proceeding.

Santamaria JA: Yes.

Kyrou JA: If they rely upon conduct after the commencement, that certainly would be conduct in the civil proceeding, but taking the letter of demand itself may not be[15].

Their Honours subsequently jointly agreed and clarified the situation in their judgment  [emphasis mine]:

[W]hile a letter before action might not engage a particular overarching obligation, any use or reliance on such a letter after the commencement of a proceeding may do so[16].

By so saying, their Honours made the point that the use of the letter brought it under the demands of the overarching obligations of the Civil Procedure Act 2010 (“CPA”), including in relation to overarching obligations in relation to honesty and the need to not do anything that would or could mislead or deceive. However, man X, man Y, CASACIR, Smith & KSA’s agreement in, and instructions as to, the prolific use of that letter by Southall breached the law and was not just false and mendacious, but succeeded in actively misleading and deceiving the court, as well as actually significantly aggravating the situation. If the truth of the contents of the letter had been clear at court, it would have contributed to different judgments. However, regardless of that fact, they deliberately used the letter to sway the judges and I was entirely caught by surprise by the introduction and prolific and misleading use of that letter and could not therefore prepare for it.

This letter was no legitimate demand made on behalf of man X and man Y for removal of allegedly defamatory words from the website. It is inaccurate to say the letter “may have” contained “errors[17]”, or to say that the court admitted there were “errors”. The so-called “errors” are detailed, and they are revealed to be blatant lies. Further, man X and man Y each confessed under sworn oath to some of the claims and denials in the letter (and in their actual pleadings) being lies (by admitting the truth of my accusations); and Southall, while prevaricating, did admit to some of the letter’s lies also (by the same means), and he also admitted that the letter had not disclosed their claims of defamation (except for their lies that they claimed were defamatory for me to have revealed).

The Defamation Act 2010 (Vic) states at s14:

(2) A notice is a concerns notice for the purposes of this section if the notice—

(a) is in writing; and

(b) informs the publisher of the defamatory imputations that the aggrieved person considers are or may be carried about the aggrieved person by the matter in question (the imputations of concern).

In the letter, man X and man Y failed to inform me with any precision of any defamatory imputations they considered to be of concern, other than the false ones they wanted retracted[18] (and they demanded that a notice of retraction addressing the things they wanted removed be placed on the website). Each of the parts they demanded be retracted were true and therefore were not removed. However, clarification was given on the website addressing each of their denials, as demanded by the letter. As stated above, to retract those matters would mean that I would have to lie in the website to cover for man X, man Y and CASACIR, and I was not prepared to do that. Although demanded by them in that letter, they later used my on-line explanations against me and this was part of the cause of significant awards in hundreds of thousands of dollars in damages, interest and costs. In addition, not one of the claims or denials in the letter was used in their case against me – proving that this letter was just rubbish.

The Defamation Act 2010 (Vic) also states at s14:

(3) If an aggrieved person gives the publisher a concerns notice, but fails to particularise the imputations of concern adequately, the publisher may give the aggrieved person a written notice (a further particulars notice) requesting the aggrieved person to provide reasonable further particulars about the imputations of concern as specified in the further particulars notice. 


(4) An aggrieved person to whom a further particulars notice is given must provide the reasonable further particulars specified in the notice within 14 days (or any further period agreed by the publisher and aggrieved person) after being given the notice. 


(5) An aggrieved person who fails to provide the reasonable further particulars specified in a further particulars notice within the applicable period is taken not to have given the publisher a concerns notice for the purposes of this section. 


Man X, man Y, Smith and Barrister ABC not only failed to provide any real or valid particularisations in the letter, man X, man Y, Smith, Southall, and Kaye also failed to provide any particularisations in the court actions of words purportedly objected to once they were demanded on 1 February 2012. In fact, the particularisations were not provided until 19 days later – not the 14 days demanded by law (in spite of their legal team having the particularisations documented, ready and available in October 2011 (2 months prior to their action commencing in December 2011, and 4 months prior to actually providing the particualrsiations). In their 2 February 2012 response to my demand, they effectively acknowledged they had breached the requirements of the Civil Procedure Act 2010, inter alia:

[I]n accordance with both [your] letter and the Civil Procedure Act 2010, we propose to provide you with an amended Statement of Claim together with the particulars (by way of annexures) prior to the Directions Hearing scheduled for 24 February 2012.

They falsely claimed that there was defamatory information on my former website, In fact, man X, man Y, KSA and Smith instructed Southall to tell their Honours that the letter did set out the defamation:

It set out the defamation[19]

This means that, even having the letter’s denials proven at court to be false, they then chose to falsely declare to their Honours of the Court of Appeal that all the above claims and denials in the letter were defamatory. Why were they so willing to use a letter with such a gross amount of known false content? It could only be because they did not see anything wrong in actively and deliberately deceiving and misleading the court by using such a despicable letter as being true.

The above are just some of the facts in relation to the absolute lack of veracity of the letter that they pretended was completely true and which they used so falsely against me. This is further proved when, on the instructions of man X, man Y, KSA, Smith, Southall erroneously submitted to the court as absolute fact that [emphasis mine]:

That letter is important for two reasons. The first reason is that it is a contemporaneous letter of 19 August which is two days after the first publication of the website, setting out in somewhat comprehensive form  but nevertheless succinct form the complaints of [man X and man Y] as expressed through their solicitor, Mr Smith, in what we will contend is an appropriate and very quick letter in order to place [her] on notice.[20].

It is therefore claimed as fact that Barrister ABC, Smith and KSA were comprehensive in their complaints – therefore there was nothing else they complained about and, as seen, everything they complained about was false.

Southall made a focal point of the letter in man X and man Y’s case, and did so in a further despicable manner: by erroneously claiming that this letter demanded an apology:

[It] sought … an apology[21]. 


[It] seeks an apology[22]. 


A simple reading of the letter reveals that there was no apology requested, nor was one appropriate given that all their claims were false. In addition, their bill of costs served on me on 8 March 2017 details what the letter said:

Item 3: Engrossing special letter to … [her], advising that act on behalf of [man X and man Y], noting that the website that she publishes called quarryfight.com contains information relating to a series of cases between [man X and man Y] and her or interests associated with her, that [man X and man Y] are concerned that a number of allegations published on the website contains imputations that go beyond fair comment and / or qualified privilege and consequently are defamatory of [ man X and man Y], setting out details of such allegations, seeking undertakings from [her] that she will remove all defamatory material from the website forthwith and will not [ man X and man Y] in the future, and putting her on notice that have instructions to institute proceedings for inter alia damages and injunctive relief if she does not provide such undertakings.

There is a clear lack of hint at, or request or demand for, an apology – therefore proving Southall’s claims to be false.

Southall and man Y erroneously claimed that this letter demanded that the entire website be removed.

The second thing that it’s important for is that it seeks appropriate relief and undertakings and, in particular, the removal of the website as a matter of some urgency[23].

So the website came down within a day or two of that mediation, not, as was sought in the letter from Mr Smith, at a short time after the sending of the letter in August 2011[24].

Southall: Did you immediately contact Mr Smith for the purposes of sending a letter?

Man Y: Yes.

Southall: For the purpose of trying to stop the website?

Man Y: That’s right[25]

A simple reading of item 3 of the bill of costs, where they clearly identified what they wanted, also clearly showed that the removal of my entire former website was also not demanded or hinted at – thereby proving their claims to be false, and that there was a despicable purpose for the letter – i.e. it was not sent for the purpose of claiming that the words complained of on website were defamatory, but because they needed to have the entirety of my former website removed because, inter alia, it revealed  their conduct and how they breached their own undertakings, broke the law, and refused to comply with the conditions that were supposed to regulate the operation of the quarry.

The undertakings demanded in the letter were that I retract the truth as lies, and that I do it on the website. The letter clearly stated, inter alia:

In addition we are instructed that our clients require an undertaking that you … will post a written notice on the web site retracting each of the assertions referred to…

In fact, throughout the trial and subsequent appeal, Southall kept referring to this letter and thereby proved that he was fully aware of its contents. This included knowing that the letter demanded that I enter information in the website (and thereby lie in my website by retracting matters[26] that were true so as to cover man X, man Y and CASACIR’s sometimes illegal conduct). Further, the letter threatened immediate retribution if those demands were not immediately complied with – how threatening and bullying! Further, Southall repeatedly used my compliance[27] of entering information regarding the letter into the website against me[28].

Southall submitted as unequivocal truth that:

In addition, we say – we know we haven’t pleaded it, but the letter of Mr Smith of 19 August 2011, it stands as an exhibit, it’s evidence in this proceeding; as is the reference by [her] to her astounding answer to that letter in the same website seven days later on 26 August 2011 which, she says, constituted her explanation – sorry, her reply to the letter. Certainly, in going on to paragraph 48, we contend that the letter is clear evidence of an attempt by [man X and man Y] to mitigate loss and damage prior to commencement of the proceeding. It was quick – as I have said, it was quick, it was concise, but it was nevertheless fulsome in terms of the complaints made and it’s all that can be expected of [a person[ who’s been grievously defamed[29].

It must also be noted that not one of the issues that were supposed[30] to be defamatory within that letter, or in my reply was used by man X or man Y (or by Southall representing them) in the defamation proceeding. This proves that, while man X, man Y and Smith were certainly not pleased with my response in the website (because their attempt at intimidation and bullying had spectacularly failed), it was actually my entire website that they wanted removed, and therefore their continued use of the letter was despicable. This is particularly so given the fact that the letter failed to have any proper basis because their claims and denials were false.

As stated, the letter threatened immediate retribution if the demands of the letter were not instantly complied with – yet they did not take action until December 2011 – i.e. until they had gathered more material to enable them to try to take action and then they subsequently used their own deliberate delays against me. The deliberate delay in taking action is clearly identified in their bill of costs dated March 2017.

In blatant and contumelious disregard for my rights and the truth, Southall not only made the letter dated 19 August 2011 a focal point in the proceedings, but he repeatedly cross-examined me so as to try to induce a misleading and deceiving belief in the minds of the court that facts were different to reality. In spite of the knowledge that the contents of the letter ran entirely contrary to his allegations, Southall knowingly and falsely cross-examined me as follows [emphasis mine]:

Southall: Getting back to what you did in response to the letter from Mr Smith. You’ve said that you uploaded those 15 pages on the website, and part of that – I think from, I counted pages 8-15 onwards was a form of reply to Mr Smith. That’s your evidence? … From about page – on this one it’s 6 of 15, 24 August 2011. Do you see that?

Me: Yes.

Southall: From there onwards is more or less your setting out of
 Mr Smith’s letter and underneath your responses to each of the propositions contained in that letter. Is that correct?

Me: The first two and a bit pages are just a verbatim letter.

Southall: The letter?

Me: So from page 8 under “response”, then onwards.

Southall: Your evidence to the court is that this constituted your response to the letter from Mr Smith. Is that your evidence?

Me: And I did send the fax, yes. …

Southall: Yet your response to this critical letter from Mr Smith was a continuation of the very website about which complaint was being made, wasn’t it? That’s your statement?

Me: Well, I wanted to clarify on the website the allegations, that they’ve said that they’ve made allegations and I’ve clarified them.

Southall: Consistently with the plethora of letters that you wrote with respect to the purchase of the land for example and other letters that we have seen some years earlier, why didn’t you just commit what was in the website into a private letter to Mr Smith in response to his letter of 26 August 2011?

Me: I could have done that; I assumed – – -


Southall: You could have done it, couldn’t you?

Me: Yes, I assumed that they were probably having a look at the site. As it turns out, they were, they’ve employed Mr Kraan who’s sitting at the back there for $295 an hour to do so.

Southall: Thank you for that.

Me: That’s all right.

Southall: You decided to go public by way of a website that had already been complained about, which you knew and intended to be disseminated to persons various around, not only the area but the state, you chose to go public in that way with your response rather than by sending a discrete private letter to Mr Smith to say, “I deny the allegations for the following reasons and I give my explanation for the following reasons, and I say that it’s fair comment for the following reasons.” You didn’t choose that, did you, you went public?

Me: I didn’t think about doing that. What I thought about was, there are allegations that they’re unhappy about on the website, therefore I will remedy it on the website. I will explain the situation.

Southall: So that was part- – -?

Me: So anybody who’s read it would know the explanations.

Southall: That was part of your remedy was it, that upload on the website, pages 1-15 behind tab 16, that was part of your remedy?

Me: Yes[31].

 

Southall: His letter was received by you on 26 August. So between late August 2011 and mid-December 2011 the only thing you did by way of any counter reaction was to do the upload on the Quarry Fight website, which purported to be a response to Mr Smith’s letter. Is that correct?

Me: It was a response. It didn’t purport to be – it was a response[32].

Southall knew that his submissions were false because the letter had instructed me to upload my response onto the website. However, with nasty intent, Southall made the accusations anyway:

For example, in our situation we would submit that the contents of her website reply to the letter of Mr Smith dated the 26th constitutes an occasion which would aggravate the damages[33].

[Her] astounding answer to that letter in the same website seven days later on 26 August 2011 which, she says, constituted her explanation – sorry, her reply to the letter[34]

Southall lied to the court by strongly implying as truth that he knew that my covering fax was not received:

Southall: Your evidence to the court is that this constituted your response to the letter from Mr Smith. Is that your evidence?

Me: And I did send the fax, yes.

Southall: Where is that fax?

Me: I haven’t got it here.

Southall: Did you keep a copy of it?

Me: It’s at home somewhere, yes.

Southall: Did you discover it in your discovery?

Me: No.

Southall: Why not?

Me: I didn’t think of it.

Southall: You didn’t think that a hard copy facsimile that responded to Mr Smith’s very strong letter of complaint about your defamatory statements on the website, you didn’t think that that was relevant to include in your discovery of documents? Is that what you’re saying?

Me: I’m only a novice at this Mr Southall, I’m not a legal person; I can’t think of everything.

Southall: With respect, your conduct thus far in this proceeding has indicated that you’re much more than a novice?

Me: Well, I am only a novice.

Southall: That’s your assertion. You were a legal secretary for a time, weren’t you?

Me: Yes, that’s typing up documents.

Southall: At the time that you gave discovery you were represented by Featherbys, and indeed you were represented also by senior counsel and junior counsel weren’t you?

Me: Yes, and they didn’t ask for it either.

Southall: Well, they wouldn’t have asked for it if they didn’t know about it, would they? Did you show it to them?

Me: No, I didn’t show it to them, but I told them the whole scenario.

Southall: Did you tell them about a fax that you responded to the letter with, from Mr Smith?

Me: I believe so.

Southall: You believe so?

Me: I believe so.

Southall: Are you being honest in giving that answer?

Me: Yes I am, I believe so. I can’t swear to it absolutely because I can’t absolutely recall. Yes, I’m being honest. I believe so.

Southall: What 
sort of fax was it, was it a fax header sheet or was it a one paged letter faxed through? What sort of fax was it?

Me: I can’t remember.

Southall: I’d suggest that you’re telling an untruth on oath by saying that you can’t remember, because it’s the very thing that you would have produced to your lawyers at the time you were requested to give discovery?

Me: Well, I’m telling you, I’m telling the truth.

Southall: They emphasised to you, did they not, the importance of producing documents which constituted an immediate or a contemporaneous response to the allegation that you’d committed defamation?

Me: Yes, they did. They said to me, “Have you got any letters from [man X and man Y]?”
And I said, “I’ve got this one here, 19 August.”

Southall: Did they ask you, did you respond to that?

Me: And I mentioned about the website. I think I mentioned about the letter – I can’t be sure.

Southall: Was it a short letter or a long letter?

Me: From memory it was a short one, just of, “I’ve uploaded the answer”, or “response” or something like that.[35]

 Not only did Southall strongly imply that the fax did not exist, and that I had lied about it, but:

  • I had earlier told Southall and the court that I had responded to Smith by fax, and Southall did not dispute it at that time:

I sent a fax to Mr Smith’s office and I said I would be responding on the website, and that’s what I did.[36]

  • Southall implied that the fax did not exist and that I had lied about it. He thereby lied to the court because he told the mediator in November of the previous year that he knew about my 23 August 2011 fax to his instructors:

By letter dated 23 August 2011: she said that she would address the issues raised, but nothing further was received by way of response.

Therefore, the nasty, venomous, spiteful things he accused me of, actually related to his own legal team and himself given that they apparently deliberately hid the document from discovery. Further, he therefore knew that the fax said that the response would be on the website (as instructed).

In spite of Southall’s personal knowledge that his aspersions were inaccurate, by his cross-examination of me, and by his erroneous submissions and addresses, he succeeded in swaying the court into believing that the letter supported allegations that it absolutely did not support, thereby causing an award of at least a portion of the damages because I had answered the false accusations on line as I was directed to by the letter. Pagone J proved that he was swayed by their examinations, cross-examinations, addresses and submissions when, in his Reasons, he addressed the fact that I had responded on-line[37]:

[32] [Her] response to the letter of 19 August 2011 was to publish on the Quarry Fight website rather than to respond by private correspondence. She received the letter of 19 August 2011 on 23 August 2011 and on that day she published on the Quarry Fight website the whole of the letter from [man X and man Y]s’ solicitors together with her response to the many statements in the letter. Much of [her] response continued the, by then, long and drawn out disputes with attempts by her to assert the accuracy of what she had said. In her response she sought to justify the matters about which [man X and man Y]s’ solicitors had complained.

[33] [She] sent a fax on 23 August 2011 to [man X and man Y]s’ solicitor informing him that her response to the letter of complaint was on the website. It seems that [she] may have inappropriately seen the letter of 19 August 2011 from  man X and man Y]s’ solicitors as itself a continuation of the dispute between them rather than as something which required immediate rectification on her part.

Southall then compounded that misleading and deceptive claim before their Honours of the Court of Appeal in November 2014 [emphasis mine]:

C1 to C8, Your Honour. C1 to C8 in Vol.3, and C9 through to C17, which has to be separated from the part that I just referred you to, is [her] response which she uploaded onto the web, that response being to the letter written by [Smith] in August 2011, setting out the defamatory imputations and setting out, sorry, withdraw that. it didn’t set out the defamatory imputations. It set out the defamation and it sought a retraction and an apology, whereas at those pages I referred you to, C9 and subsequently [she] responded by actually uploading a further part of the website in which she addressed that letter from Ken Smith & Associates. And His Honour referred to that as being an element to be taken into account. We would say it compounded the defamatory content of the previous pages, C1 to C8 that I earlier referred Your Honour to.[38]

That letter is at Appeal Book Vol.3, at C18-19. It’s a letter written in clear terms by Ken Smith & Associates, the solicitors for both my clients and it sets out, and very soon after this website had appeared, it sets out the clients’ real concern about what was contained in her website at that time, but subsequently added to by further uploading, not known then, and seeks retractions and seeks an apology. Thirdly, that’s the second issue that adds to general damages. [Her] response was to upload and respond to this letter on the website and that can be found at Appeal Book – I’ve already indicated this to His Honour, Justice Ginnane – at Appeal Book C9-C17. That response His Honour found continued [her] attempts to assert the accuracy of, if not justify, what she had already said. In other words, it adds to the hurt, we would say. That is in His Honour’s reasons at Paragraph 32.[39]

The letter did not set out any details of words purported to be defamatory other than the ones listed in (a) to (d) of the letter (many of which were agreed under oath by one or other of man X and man Y, or by Southall himself during addresses and submissions to be false – e.g. their knowingly false claims that CASACIR was not an acronym for Crush Any Shit And Call It Rock, that Kraan had not told VCAT that that was the acronym, and so on). In fact, Pagone J said:

[I]t must be said in fairness to [her] that the solicitors acting for [man X and man Y] did not identify which of the many words on the website were complained of as being defamatory[40]

Having being subjected to the false claims regarding the letter, their Honours of the 2014 Court of Appeal then went on to also be swayed by Pagone J who had been swayed by Smith and Southall [citations removed, emphasis mine]:

[Man X and man Y] rely also upon the response [she] made to their solicitor’s letter, in which concern was expressed about the defamatory remarks on the website. Her response was to continue to publish such remarks as well as uploading the letter itself, with a published response. Much of this response continued [her] attempt to assert the accuracy of, and to justify, the defamatory imputations.[41]

Moreover, [her behaviour] identified above, while not supporting an award of aggravated damages, should be taken into account in the award of compensatory damages. This is especially so in respect of [her]response to the letter from the solicitors for [man X and man Y]. Far from treating the letter with the seriousness it deserved, she] used the letter as providing a further opportunity for her to continue to publish the defamatory imputations, which she delayed in removing. In our view, an award of $75,000 for [man X] and $65,000 for [man Y] stands in an appropriate and rational relationship to the harm sustained. We would order that, in lieu of paragraph 1 of the orders, [she] is to pay damages in the amount of $75,000 to [man X] and damages in the amount of $65,000 to [man Y].[42]

This last quote was part of the Reasons granting of the elevated award (being an additional $120,000). All this was the result, not only of erroneous misrepresentations in submissions and addresses to their Honours of the Court of Appeal but, as we have seen, goes back to Southall’s erroneous claims in his cross-examination of me and in his submissions before Pagone J.

This letter and their use of it was typical of the standard of evidence upon which man X, man Y, CASACIR and their legal team built their case:

  • they erroneously claimed that true, known and subsequently admitted to facts, were defamatory; and
  • they claimed things as absolutely true when they were false.

When man X, man Y, CASACIR, KSA, Smith, and Southall started the action against me in mid December 2011, I could not conceive how they would have the gall to try to use the false claims and denials in that letter in a positive manner – therefore I did not prepare myself to fight it and was totally caught by surprise. Pagone J evidenced some surprise also:

It’s curious, isn’t it, that you haven’t pleaded this letter of 19 August 2011? 
… Indeed, even as part of your case. One might have thought that you would have pleaded this as being part of the basis of aggravation of damages but you’ve not pleaded it in the statement of claim at all.[43]

Man X and man Y each admitted to being a participant in the collusion, collaboration and conspiracy by admitting that they had each approved the letter:

Mr Southall: Did you immediately contact Mr Smith for the purposes of sending a letter?

Man X: Yes. …

Mr Southall: Had Mr Smith been your solicitor and Casacir’s and
[man Y’s] solicitor previously in the various VCAT proceedings, is that correct?

Man X: That’s correct, yes.

Southall: Did you approve – read and approve that letter before it went out from Mr Smith?

Man X: I did[44].

 

Southall: Did you see a draft of that letter before it went?

Man Y: I would have because I always do see drafts of these letters.

Southall: Had Mr Smith been your solicitor and the Casacir solicitor for a number of years?

Man Y: He has.

Southall: Did you approve the contents of the letter?

Man Y: Yes, definitely[45]

Kaye gave Southall advice and assisted in preparing his submissions and for examination and cross-examination, and Southall spent considerable time and effort inserting the letter into the proceedings, including in an erroneous manner, and thereby both of them were part of the collaboration, collusion and conspiracy.

The letter had been received, responded to, and dealt with, in August 2011. I had not looked it at again or taken any further notice of it:

  • because there was so much false content in it; and
  • there had been no immediate action against me as threatened – therefore I assumed that they were happy with my on-line response (particularly because they did not enter it or any of the purported (but not) defamatory remarks claimed into the much later court action).

Clearly they made false claims and denials. The above is a strong indication about how relaxed they felt about making such claims and denials, and why they won the VCAT cases and court cases.

By inserting this letter of 19 August 2011 with its false content, claims and denials into their affidavit of documents discovered[46] and notice to admit[47], it was part of the erroneous information that was used by Smith, KSA, Schivo, Southall and Kaye to gain man X and man Y an award of considerable damages, interest and costs (including on an indemnity basis), totalling many hundreds of thousands of dollars, and in Smith, Southall, and others, earning considerable fees.

[1]    The bill of costs dated 8 March 2017 states: “118 (29/2/12) – Confer with instructing … clients and advise in conference on strategy and future conduct of the litigation. 318 (30/11/12) – Discuss and settle memorandum of advice re strategy generally for further conduct of litigation. 341(18/12/12) – Further conference with … clients, … and advise in conference re strategy for hearing. 460 (14/3/13) – Confer with clients re strategy for trial, … potential evidence to be called at trial; Advise in conference as to tactics and strategy for trial.

[2]    T246:28–T247:10.

[3]    After vacillating and initially lying under oath, man X finally and very reluctantly admitted under oath that they had done the works on Kookaburra Creek without a permit (T164:28-31, T193:28–T197:27))

[4]    See note above, where I had not made any such accusations against man Y’s son at all

[5]    Ignoring directions to provide dates, and to supply documents, ignoring the order giving the conditions for their permit, and a lot more.

[6]    T273:5–T274:4 (he agreed to having ignored directions and orders by obfuscating his answer and not telling the truth, the whole truth and nothing but the truth – under oath)

[7]    T274:4–T276:2

[8]    The truth of this acronym was later confirmed by man X and man Y under oath and that man Y didn’t care that the “whole industry” knew the acronym (T174:1-2, 16-17; T246:11–T247:10, T254:17–T257:17), and by Southall in submissions and addresses (T98:29-31), at court in 2013.

[9]    Southall had input into man Y]s “proof of evidence” and therefore knew what he would testify to

[10]   T257:10-17

[11]   T174:16-17.

[12]   The website revealed that they had indeed repeatedly, consistently and erroneously distorted facts, and it was there in the website downloads for Barrister ABC, Smith and KSA to see.

[13]   There were so many issues in which man X, man Y and CASACIR misled the tribunal, but one of note is in relation to the drill – which was amply revealed in my former website downloads.

[14]   A bill of costs dated March 2017 puts the creation of the letter in the lap of Barrister ABC

[15]   T6:11-23  (2016 Court of Appeal)

[16]   Judgment, Reasons at [160]

[17]   What a nice way of putting blatant and deliberate lies.

[18]   Namely those in parts (a) to (d) of their letter – this letter was presumably purporting to be a “concerns notice”.

[19]   T27:11 (2014 Court of Appeal)

[20]   T47:26–T48:3

[21]   T27:11-12 (2014 Court of Appeal)

[22]   T34:19 (2014 Court of Appeal)

[23]   T48:5-7 (2013)

[24]   T48:21-24 (2013)

[25]   T223:11-14 (2013).

[26]   Only the matters listed in their (a) to (d)

[27]   In as much as I could, given the erroneous claims and denials within the letter.

[28]   T34:12-19 (2014 Court of Appeal)

[29]   T569:30–T570:13

[30]   But were not defamatory as was admitted during sworn testimony and during submissions

[31]   T394:2–T398:12 (2013)

[32]   T402:3-9 (2013)

[33]   T543:7-10 (2013)

[34]   T570:2-5 (2013)

[35]   T395:9–T396:31

[36]   T342:7-9

[37]   Judgment dated 2013

[38]   T27:3-19 (2014 Court of Appeal)

[39]   T34:12-29 (2014 Court of Appeal)

[40]   Judgment 2013, Reasons at 33

[41]   Judgment 2015, Reasons at [49]

[42]   Judgment 2015, Reasons at [83]

[43]   T48:25-31

[44]   T223:11-19

[45]   T241:15-16

[46]   Document 28

[47]   Document 1 of part B