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.
In great disregard for the truth, man X, man Y and CASACIR, together with their team colluded and conspired together to delay the particularisation of the words claimed to be offensive when they accused me of having defamed man X, man Y and CASACIR. They also colluded and conspired together to delay the filing and serving of the writ, summons and statement of claim. Southall, in collusion and collaboration with his clients, his instructors and certainly Kaye, deliberately used the delays against me.
None of their documents complied with the r. 13.10(1) which demanded that every pleading had to contain the necessary particulars of any fact or matter pleaded. The Supreme Court (General Civil Procedure) Rules 2015 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, fraudulent intention or other condition of the mind, including knowledge or notice—
which is alleged.
Not only were the claims and denials pleaded in their statement of claim largely fraudulent, they failed to provide the necessary particularisation of what the words were and where the words were.
They posted a letter of complaint dated 19 August 2011 to me (post-marked 22 August 2011) – that letter focused on matters that were blatantly untrue, but which were claimed as absolutely true. For better details of that letter, see the relevant website pages.
Other than the fraudulent claims and denials, their letter of 19 August 2011 did not particularise the words that were purported to be defamatory, and Southall belatedly admitted this to their Honours of the appeal court of 2014 [emphasis mine]:
[S]orry, [I] withdraw that, it didn’t set out the defamatory imputations.
– this was in spite of having fraudulently claimed before Pagone J that it did particularise the words [emphasis mine]:
[I]t 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 our clients as expressed through their solicitor, Mr Smith.
Man X, man Y and CASACIR and their team all colluded and collaborated together to delay taking action, and then to not provide the particularisations at any early stage. The bill of costs served on me on 8 March 2017 details the deliberate delays in particularisation among items 12 to 51. This is particularly so in item 38 where Kaye was paid for having collated, organised and tagged the website material and for revealing it to the plaintiffs and the other members of the team[1] on 14 October 2011 – 6 weeks before the first iteration of their statement of claim was finished, 7 weeks before it was filed and 2 full months before it was served.
The delay was therefore proved to be deliberate and this is revealed by the fact that, previous to finalising or filing or serving their first iteration of their statement of claim, Kaye had not only highlighted the words, but she had also tagged them [emphasis mine]:
12 October 2011 – Updating Statement of Claim; Collating and organising tags on website material in preparation for conference with the clients.
14 October 2011 – Conference with [Southall] in preparation for conference with [man X, man Y and CASACIR] and further amendments to Statement of Claim; Conference with [man X, man Y and CASACIR], {Smith of KSA (and most likely Kraan)] and [Southall][2].
But then, in spite of amending the draft statement of claim yet again, did not particularise the words – this collaboration and collusion and deliberate delay is proved by the following entries in their bill:
10/11/11 – Scanning email from counsel forwarding further draft statement of claim to include recent statements made by the Defendant on her website and memorandum of advice in relation to same; Perusing memorandum of advice prepared by senior and junior counsel in relation to the final draft statement of claim prepared by counsel; Copy memorandum for the solicitor’s file as received by email[3].
4 November 2011 – Read email correspondence from junior counsel and confer with her re further amended Statement of Claim; Settle further amended Statement of Claim with added particulars and imputations; 9 November 2011 – Confer with junior counsel re further final amendments to Statement of Claim updating same; Prepare memorandum to instructing solicitor re final form of pleadings and additional imputations[4].
3 November 2011 – updating statement of claim in light of discussion with J Kraan and website updates; 9 November 2011 – updating statement of claim[5].
24/11/11 – Scanning email from counsel forwarding final draft statement of claim and memorandum of advice in relation to recent statements made by the Defendant on her website; Perusing memorandum of advice prepared by senior and junior counsel in relation to the final draft statement of claim prepared by counsel; Copy memorandum for the solicitor’s file as received by email[6].
24/11/11 – Confer with junior counsel re further amendments to Statement of Claim and particulars, and her telephone conference with Jack Kraan; Settle memorandum of advice[7].
23 November 2011 – updating statement of claim in accordance with further instructions; 24 November 2011 – conference with senior counsel re updated statement of claim[8].
25/10/11 – ordinary letter to [man X, man Y and CASACIR] forwarding final draft statement of claim and memorandum of advice in relation to same and requesting instructions as to same; 10/11/11 – ordinary letter (email) to [man X, man Y and CASACIR] forwarding further amended statement of claim to include recent statements made by the Defendant on her website and memorandum of advice in relation to same and requesting instructions as to same[9].
Thus it is very clear there was no valid reason for the delay in particularisation of the words they claimed they said they found objectionable. Kaye knew the words and their location because she had personally identified the words and had tabbed them, Southall knew because Kaye had had conferences with him about it in preparation for the conference where Smith (and therefore KSA), man X, man Y and CASACIR, and Kraan[10] were all shown the words and taggings, and thereby knew in mid-October 2011 (1) the specific words and (2) exactly where they were in the website.
By letter dated 1 February 2012 my then legal team wrote to Smith of KSA and demanded the particulars. These were not provided for almost a further 3 weeks and immediately they were particularised the words identified were removed from the website. There was no delay.
Even when they did eventually provide the particularised words objected to, they swamped me with a folder of some 309 pages, only 7 of which had a few lines in which the words were appropriately identified – thus providing 98% of wasteful content. In addition, at the appeal of the s29 application, they went through the folder and highlighted many of the pages that had not been used or pleaded in any way, shape or form and had not been highlighted in the original – and they did so in an effort to try to delude their Honours into believing that the entire folder was of importance. This was new and revealed their ongoing and consistent fraudulent conduct.
Their delay in particularisation, as well as the delay in taking action, was actually all about trying to have more to try to use against me in an effort try to to strengthen their case. Such deliberate delays reveal that there were no real or actual impacts by way of injury in man X, man Y and CASACIR’s credit or reputation, they had not been brought into any public ridicule or contempt, they had not suffered any distress, embarrassment or humiliation, and there was no damage to reputations or business. In addition, and none of them had actually sustained any injury, loss, or damage – in fact, none of those claims were substantiated other than by way of self-serving comments and no other witnesses substantiated the claims. There were no added costs, downtime, inability to gain a permit, or devaluation of either company or land value – each one of those claims was blatantly, deliberately, and obviously fraudulent, and were withdrawn in spite of having been filed with the court as fact, but were later being claimed before the court as being true with no proof and without having been ventilated in any regard.
The fact that their lack of particularisation was used against me caught me by surprise, especially given that the timeline from the fraudulent letter of 19 August 2011 to when the words complained of were removed was at the base of damages awarded to man X and man Y – but, being entirely surprised by the fraudulent accusations, I was not prepared to fight the claims because it was not pleaded.
Here we have man X, man Y and CASACIR and their team deliberately causing a delay and then using it against me in a fraudulent manner:
In this case the offending material, to use the words of the defendant, or the offensive remarks that were highlighted, they remained on the web – indeed, the website remained in whole and indeed continued to be added to – or the website did, I’m not saying the offence of – but the website continued to be upgraded after the letter from Mr Smith was sent on 26 August, and I’ll get on to the reply from [her] via the internet, the same internet publication shortly, but it continued to remain in place for the whole of September, the whole of October, the whole of November, the whole of December. She says she received the statement of claim in mid-December, I think she said 15 December. It continued, it remained on for another month into January, that’s five months, and indeed it remained for another month into February, that’s six months. In effect these defamatory statements on this defamatory internet site remained in situ, in whole, for six months until I think it’s said 23 January when they were removed as a result of her receiving the writ, going to solicitors, going to counsel, and being told “Get rid of them, they’re defamatory”, and we know that, she said that[11]. So six months they were on the web.
5(c) the … remarks were published on a publicly available internet site for between five and seven months[12]
– and this fraudulent action swayed their Honours as noted in:
- Pagone J’s Judgment, at Reason [34] and [58]:
The next relevant step bearing on the question of the delay in the removal by [the defendant] of the defamatory words was the issue on behalf of [man X and man Y] (and at that time also on behalf of Casacir as a plaintiff) of the writ in this proceeding which, in addition to claims in defamation, sought relief for injurious falsehood and misleading and deceptive conduct. The writ dated 5 December 2011, was issued on 7 December 2011 and was served upon [the defendant] on the evening of 15 December 2011. On that day she contacted Dr Sadler, the barrister who acted for her in the past. He, in turn, immediately contacted Featherbys Lawyers, to act on her behalf. It seems that the first available time for [the defendant’s] lawyers to confer with her about the proceedings was in January 2012 when she conferred with her solicitors, K Judd S.C. and Dr Sadler. Requests were then made to [man X, man Y and CASACIR] on behalf of [the defendant] for [man X, man Y and CASACIR] to identify precisely the words said to be offensive. The evidence of [the defendant], which I accept, is that on or about 23 February 2012 she received a folder (a copy of which was subsequently tendered in evidence on behalf of the plaintiffs) highlighting the words said to be defamatory and cross-referenced to the paragraphs in the statement of claim alleging the defamation. [the defendant] gave evidence that she immediately deleted the offending words from the Quarry Fight website upon receipt of the folder and the legal advice as soon as the offending words were identified. That account of the facts gives a somewhat different impression from the submission by Counsel that the website had been on the internet for over a year in total. However, on any view, there were words on the website that could not justifiably have remained even for the shorter period of time between August 2011 and 23 February 2012. They ought to have been removed immediately from the website when complaint was made of their existence. There was no sufficient justification in [the defendant] waiting to obtain legal advice after receiving the writ and, in any event, she ought not to have waited for the writ. She was specifically on notice by 23 August 2011 that her website contained words which she should have removed.
- Warren CJ, Tate JA and Ginnane AJA in their Judgment, Reasons at [83]:
Moreover, the behaviour of [the defendant] 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 [the defendant’s] response to the letter from the solicitors for [man X, man Y and CASACIR]. Far from treating the letter with the seriousness it deserved, [the defendant] used the letter as providing a further opportunity for her to continue to publish the defamatory imputations, which she delayed in removing.
So we have man X, man Y and CASACIR and their legal team collaborating, colluding and conspiring in deliberately delaying particularisation so that they could fraudulently use their own conduct against me – and it worked well.
[1] Other than Spencer and, perhaps, Kraan
[2] Item 38 in their bill of costs dated March 2017 where it identifies some of Kaye’s activities for which she was paid.
[3] Ibid, at items 39-41 – detailing KSA and Smith’s part in the collaboration and collusion.
[4] Ibid, item 42 – detailing Southall’s part in the collaboration and collusion.
[5] Ibid, at item 43 – detailing Kaye’s part in the collaboration and collusion, and note Kraan’s part in the collaboration and collusion.
[6] Ibid, at item 44-46 – detailing KKA and Smith’s ongoing part in the collaboration and collusion.
[7] Ibid, at item 47 – detailing Southall’s ongoing part in the collaboration and collusion, and note Kraan’s ongoing part in the collaboration and collusion.
[8] Ibid, at item 48 – detailing Kaye’s ongoing part in the collaboration and collusion, and note Kraan’s ongoing part in the collaboration and collusion.
[9] Ibid, at item 516 – detailing man X, man Y and CASACIR’s ongoing part in the collaboration and collusion.
[10] in fact, Kraan gave advice on the words as identified in their bill of costs.
[11] Firstly, my legal team did not say that, so it was a lie; secondly, I did not say that, so that was yet another lie.
[12] Man X, man Y and CASACIR’s notice of appeal settled by Southall