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 Civil Procedure Bench Book from the Judicial College of Victoria states in 2.3 [emphasis mine]: “Section 26 of the Civil Procedure Act 2010 obliges those to whom the overarching obligations apply to disclose the existence of all documents that they are aware of which they consider, or ought reasonably to consider, are critical to the resolution of the dispute. ….The requirement that the party be ‘aware’ of the existence of the documents may be satisfied by actual or imputed knowledge. For example, where a barrister becomes aware of a document while on retainer for instructing solicitors, their knowledge will be imputed to the instructing solicitors regardless of the solicitors’ lack of actual knowledge (Hudspeth v Scholastic Cleaning and Consultancy Services Pty Ltd (Ruling No 8) [2014] VSC 567 at [223]-[225]).”
The Civil Procedure Bench Book also states in 2.4 [emphasis mine]: “Vickery J [stated] that ‘the public interest in ensuring that all relevant material is before a court to enable it to properly discharge its function’[1]. The common law right of parties to a fair trial (reinforced by s24(1) of the Charter) may be compromised and lead to a denial of justice if they are denied relevant documents[2].”
Additionally, John Ribbands of counsel told their Honours of the Victorian Court of Appeal [emphasis mine]: “And the only other matter, Your Honours, was the decision that I referred to of Orin v. Tarantello, the media neutral citation is 2009 VSC 143. It was a decision of His Honour Justice Beech arising from an ex parte application for an injunction before His Honour, ironically, Justice Pagone, and it involved an application for costs against the barrister and the solicitor who appeared and represented the applicant for the ex parte application, and in essence what was said at Paragraph 33 is that the solicitor owed the same duty as that owed by counsel in ensuring that there was full and fair disclosure of all material facts to the court, and relevantly involved an issue of a letter which was known to be to impact significantly on the discretion of the ex parte application which counsel didn’t bring to the attention of the court and the solicitor sitting there hearing counsel make those submissions, didn’t prompt counsel and also bring it to the attention of the court. So I referred that as being analogous to what we would say is an all-embracing obligation on the parties’ practitioners to bring those matters to the court’s attention.”[3]
However, in the case against me, the following documents were concealed, and/or made to appear as if they were made by, or for, me, and/or that the other side did not and do not have the documents.
In relation to what became my Exhibit 2 (emails and letters that Southall knew full well existed and yet tried to conceal and/or pretend that he didn’t know about them in spite of having charged for reviewing them just days earlier) [emphasis mine]:
Southall (cross-examining me): After the letter from you to Ken Smith dated 26 August 2010 there was no further correspondence relating to the sale and purchase of the property, was there?
Me: Yes, there actually was.
Southall: There was? Can you identify it?
Me: Well, it’s actually in your affidavit of documents I believe, it’s listed. Our barrister at the point in time, Dr Robert Sadler, was apparently having conversations with Graeme Peake who was the plaintiff’s – – –
Southall: We don’t want to hear hearsay conversations[4].
He asked the questions and then, not liking the way the answer was going, tried to shut it down saying it was hearsay when he had used prolific amounts of hearsay and even double hearsay himself. Then, when I produced the correspondence, he denied knowing anything about it when he had reviewed the documents just days earlier:
Me (to Pagone J): That’s an email between Mr Peake who was the plaintiff’s previous barrister and my barrister at the time, and a subsequent letter.
Southall: There may be privilege issues in the first, your Honour.
Me: That is what was sent, but that’s a larger copy of it. That’s Mr Peake’s reply.
Southall: I have no objection to that exchange of emails. I have got no objection your Honour, as long as [she] explains exactly the sequence and how the two communications juxtapose to one another.
Pagone J: Hand it up and I’ll have a look at it.
Me: The one with the staple in it, the one on the front is an email that was sent from Robert Sadler to Graeme Peake. The next page is, why I’ve included that is because it’s easier to read. At the bottom of the next page is actually that email, and then the reply immediately above that. The single page is, because we didn’t receive any reply, I then sent the letter to Mr Smith and just wanted to – so that we had actually dropped our price right down to what the plaintiffs were asking. The only difference was that we put in clause 5, which is, “Each party wears their own costs to date.” And No.6, “CASACIR and [me] and [our] associated interests provide mutual releases.” And we didn’t receive a reply.
Southall: The problem with it I suppose is that neither of my clients have had it put to them. This is being brought up very late in the conduct of proceedings.
Pagone J: But this is directly relevant to the questions you asked about whether she has been seeking an inflated price, and all she’s saying is, as it happens by 16 March 2011 so far as she was concerned she had dropped her price. Again, it just doesn’t matter what your clients say – this is a case about aggravated damages. Part of the case against [her] is about her behaviour. This reflects upon her behaviour, not your client’s behaviour.
Southall: That’s so.
Pagone J: So your current objection doesn’t seem to matter very much. How would it have been relevant to put this to your clients?
Southall: As to whether it was communicated to them and what was their attitude.
Pagone J: But why? How would that have been relevant to the question of aggravated damages?
Southall: If my clients had had the opportunity, if this had been put before them and they had an opportunity to respond – we don’t know whether they did or not because Mr Peake’s email says he’ll get back, “I’ll let you know as soon as I have instructions.” In my submission, clearly it would be of relevance and fairness if those matters were put to my clients and what their reactions were to it. That would have provided a further, if you like, link in the chain in relation to negotiations over the sale of this property.
Pagone J: I’m not sure what the proposition is Mr Southall. Is the proposition that it is relevant but that there is something else that is also relevant that I don’t know about?
Southall: No, I’m not putting that your Honour because I don’t know whether there is. I can’t say that.
Pagone J: So it is relevant and there might be something else that’s relevant?
Southall: Mmm-hmm.
Pagone J: Do you need to get instructions before you make the submission? At the moment the case that you put against [her] is that her behaviour is such concerning the price that she wanted that I should award against her very substantial damages. That’s your case.
Southall: It is.
Pagone J: And you put it strongly and understandably so. She says, well, when you take into account those factors, you also need to take into account that on that very topic there had been this communication from me. Now, I don’t know whether – – -
Southall: No, it’s from her barrister, purportedly on instructions from [her].
Pagone J: No, it’s more than that. It’s from her legal representative, namely her barrister, and in addition from [her company] signed by her in a separate letter. What it shows is a persistence to have put before your client, through two different sources, a proposition about reducing the price. And her case is, all this occurred over a year ago.
Southall: In early 2011, two years ago.
Pagone J: Exactly.
Southall: You mean over a year ago before the publications?
Pagone J: Yes[5].
Southall (pretending that the same correspondence was a surprise in spite of having reviewed it just days earlier): Your Honour, I think it’s probably best if we get some time and we look at the transcript, and also to put this matter to my client. It comes as a complete surprise.
Pagone J: I must say, if it does come as a complete surprise then I myself am completely surprised. What these documents show, if they be accurate, is that through two separate routes there was an attempt to get something to your clients which apparently you don’t know about, and that strikes me as being odd or an extraordinary forgery, which would be bizarre. [Then speaking to me] I see that you are being anxious about that. You need not be anxious about that, I’m not for a minute suggesting that it’s a forgery. On the contrary, they look on their face as they are perfectly genuine and for them to have been concocted by somebody would involve extraordinary skills and abilities and a bravado that’s unlikely to be seen in this court by these people. So, they have about them all of the aura of authenticity about them.
Southall: [T]here’s a passage, I think the relevant passage that your Honour is referring to is at page 258 – – –
Pagone J: No, try page 257, line 18. And then you’re quite right, at page 258 at line 13 she says, “We actually put an offer to you to say, too small, two qualified valuers.” And he says – – –
Southall: “I think it’s a pointless argument”.
Pagone J: “I am unaware of it. We got a straight no is my understanding”.
Southall: That’s at the very bottom.
Pagone J: That’s at the very bottom after a lengthy question. The bit about, “I think this is a pointless argument”, I think was you Mr Southall getting up and explaining.
Southall: No, no, it wasn’t me your Honour, that was the witness. I recall him saying it. Because what follows can only be consistent with the witness’s answer, not counsel’s submission.
Pagone J: I see.
Southall: Then the point you’re referring to is right on the start of the next page. I think it’s [her].
Pagone J: Yes, it is, “No, we did, we went back to Mr Peake.”
Southall: He came back and said that it was not accepted by you.
Pagone J: So it was put to your client.
Southall: “Was that in writing?” Now who asked that? Probably [man Y]. “Yes, it is, I am unaware of it”. Then it was finished up with [her], “I won’t take up the court’s time now but if I can have Monday – if I can Monday give it or I can do it, sort it out when we’re finished.” Then your Honour says, “I’m not sure what the relevance of this is.”
Pagone J: You need to get instructions about a couple of things I think.
Southall: From [man Y].
Pagone J: It might be interesting to know why this wasn’t in your discovered list.
Southall: I think it was.
Pagone J: You just told me this came as a surprise to you.
Southall: Yes. I think the exchange of emails. My junior’s looking. The document headed [with her company name] dated 16 March 2011 was in our discovery – that is, the letter that says, “The following was put by our barrister Mr Sadler to your client via Mr Peake, your client’s barrister, on 1 March 2011.” But the email from Robert Sadler to Graeme Peake and the chain of which it forms part, including Mr Peake’s reply, don’t seem to be in our discovery, your Honour.
Pagone J: I must say, this does disturb me a little bit. It disturbs me a little bit to find that, although it was in the discovery, when you saw it a few minutes ago it caused you some surprise. I’m not suggesting that you weren’t surprised, I’m suggesting on the contrary, that you were understandably surprised. But it also disturbs me a little bit more, indeed substantially more, that [man Y] gave evidence that all this was news to him, he was unaware of it. I am not sure what I am going to have to do about that. Certainly your case has been dependent to some extent upon the personal conduct of [her] in determinately seeking to extract from your clients more than she and her husband or, more accurately, their superannuation company was entitled to seek by reason of the conduct of the quarry, and this correspondence dated March 2011 – namely, a year before certain events and certainly two years before now would in any view bear upon those matters. I’m a little bit stunned to discover that a barrister acting for your clients in the past and a solicitor previously acting and now continuing to act did not raise these matters with your client, and it doesn’t reflect well on somebody.
Southall: I have got no explanation for it, your Honour. Can I say that my surprise was more motivated – or sprang from the fact of the late introduction of this. I didn’t know about – I certainly didn’t know about the exchange of emails, and I may have – I’m not sure what my recollection was about that [company] letter, your Honour.
Pagone J: Mr Southall, I can well understand that those instructing you would have given you the material upon which you then conducted the case, and I’m not making any personal criticism of you and you need to understand that. I’m accepting that you were surprised when you saw the letter – plainly you were. The fact that those instructing you did not draw this to your attention with large highlighting is a matter of concern. The fact that, for the very kinds of reasons that you were putting to [her] earlier on about why it was that she didn’t act upon something that had been put to her previously. But the fact that your client seems to have been unaware of it – I just must say at the moment that just sounds unlikely.
Southall: Well, I’ll have to get instructions, your Honour. It may be that he didn’t understand was what was being referred to. We’ll have to seek instructions on that your Honour.
Pagone J: By all means get instructions. At this stage though it seems to me that the material is plainly relevant, so I will allow their tender. I don’t see any reason why it shouldn’t be. Insofar as the objection was that it hadn’t been put to your client – well, it plainly had been put to your client when he was giving evidence.
Southall: The proposition had, but not the document.
Pagone J: No, the document hadn’t been – no, that’s true.
Southall: That’s the critical issue your Honour.
Pagone J: No, I don’t think so. I think the proposition is the critical issue, not the document. He didn’t say, “I can’t remember a document”. That was the proposition that was being put, and it was pretty clear that he was saying what he said. In any event, I’m not suggesting you don’t get instructions, by all means do get instructions about matters, but it won’t bear upon the admissibility of this[6].
Southall: Your Honour, there’s one matter however before I commence my submissions that I wish to address which is of great concern to the plaintiffs, and it arose yesterday in the transcript between pages 416-426. It was the issue when [she] shortly after lunch at line 12 of page 416 said, after exhibit 1 – that is, the letter from [her] to [man X] dated 4 January 2009 had been produced, “There’s only one other thing that I haven’t shown the plaintiffs either. He asked”, referring to me I think, “whether, was there anything subsequent in 2010 … (reads) … interested in hearing it and I forgot to bring it up.” For the following 10 pages there’s discussion about the email – firstly the email between Mr Peake, I presume Dr Sadler and Mr Peake, and there was the letter in identical terms on the heading of [her company]. I’d indicated to the court that the matter was a surprise to me, I hadn’t known about it, and that the matter hadn’t been put to [man Y]. Your Honour said it was relevant in two contexts, firstly in respect of the issue of aggravated damages pleaded in the particulars to paragraph 15 of the statement of claim. Towards the end, after referring to the testimony of the witnesses your Honour said this after I had said: “I’m not at all sure, nor can I recall whether there’s any direct conflict in the testimony between” – I’m sorry, I’m taking it a little bit later than I should. At approximately line 17 your Honour said, “I understand that. Just so…”
Pagone J: What page?
Southall: At page 426. I’d explained from lines 1 to 14 what our position was and your Honour said, “I understand that. Just so that there’s no doubt about the matter it’s also relevant to what conclusions … (reads) … and I just mention that so that there’s no doubt about that matter.” Then again on the top of page 427 lines 1-3, when I refer to my belief that there’s no previous conflict, you say: “No, that’s true, but insofar as there may need to be a finding … (reads) … that finding then this may be relevant.” Then your Honour as exhibit 2 put in those documents at lines 4-6 on page 427. You will recall that there was cognate discussion as to the testimony at page 257-258 of [man Y] commencing at line 21, it was cross-examination of [man Y] by [her]. [Man Y] had this to say, “The valuers in question, probably the one [she] is referring to, is probably on bank panels but the reason … (reads) … extra $50,000 on top of that to be reasonable. Had you been serious you perhaps”, referring to [her], “you could have come back and said, ‘Well why not allow $100,000 on top of it?'” In reply [she] says, “We did”. [Man Y] says, “I’m unaware of it. We got a flat, no, is my understanding.” She says, “No, we did, it went back to Mr Peake, he came back and said it was not accepted by you.” [Man Y] asked, “Was that in writing?” [She] says, “Yes, it is.” He says, “I am unaware of it.” [She] says, “I won’t take up the court’s time right now but if I can Monday … (reads) … it will only take a few minutes to find it.” Obviously, being a thorough person that she is, [she] was able by the following day to get her hands on that document and it appears that became exhibit 2. Your Honour, [man Y], and I seek leave –[man Y] desires to give evidence, and his evidence will be to this effect: That he can confirm that he didn’t receive anything in writing to that effect, but what he does know is – and I have a document here which I’ll seek to tender and it’s a document of common ground, it’s the determination of the Victorian Civil Administrative Tribunal chaired by Mr Byard with Mr Potts dated 7 February 2011 – that is to say, some weeks before, three weeks or so before this exchange of correspondence that went in as exhibit 2. In that proceeding – and on the frontispiece of the determination it says, “Date of hearing 22, 23, 24, 25 and 26 November 2010”, that is to say the previous year, and the date of the order is 7 February 2011. The order of the tribunal after that lengthy hearing is that the application – that is to say the application by [her] superannuation company – beg your pardon, the application by the lessee to the superannuation company, …, which is also a company owned and controlled by [her] and her husband – the application was refused and no enforcement order was made.
Me: Excuse me, your Honour, this enforcement application has absolutely nothing to do with the offers – – -
Southall: Can I be allowed to – – –
Pagone J: Mr Southall, I think actually what you should be allowed to do is to do this in a much more disciplined way. You’ve embarked in an enormously long discourses. If you’ve got an application that you want to make, I think the better course should be, you tell me what the application is and the basis of the application.
Southall: The application is to reopen our evidence and to call [man Y].
Pagone J: To say what and why?
Southall: I was explaining that to your Honour, to say what.
Pagone J: No, you were giving me the content of something; you weren’t giving me a why.
Southall: To say what and why, I’ll explain that, yes.
Pagone J: Let’s start shall we, with the basis upon which you can do this. What rule are you relying upon and what authorities?
Southall: Your Honour, the case is still on foot, the case hasn’t closed.
Pagone J: But your case is closed. You finished your case.
Southall: Yes.
Pagone J: So let’s look at the rules and the authorities to start with.
Southall: I haven’t looked at the rules, I’ve got to admit that.
Pagone J: Would you like some time to look to do so?
Southall: Yes.
Pagone J: I’ve got an unrepresented litigant – – -
Southall: Yes, I know.
Pagone J: And I need you to do this according to Hoyle.
Southall: I agree with that. Before I do that, can I take your Honour’s attention to the words in exhibit 2?
Pagone J: I want you to do this in a more structured fashion, Mr Southall. I’m not having you engaging in, from my point of view, a free-for-all discussion or an unfocused discussion. You get up, you make an application, you tell me the basis of the application and then we deal with it. I’m not having you do otherwise.
Southall: Well, I was in the course of making the application your Honour, but if you want me to refer to the rules.
Pagone J: You begin by making the application. It starts with, I make an application under rule X, Y or Z, and everybody can follow it.
Southall: If it please the court.
Pagone J: I’m not having you go into evidence and then I’m going to work out at the end what the application is relevant to. At the moment it seems as though you want two things: (A) to recall a witness to give testimony.
Southall: Yes.
Pagone J: (B) possibly tender a document.
Southall: Yes.
Pagone J: Tell me what the rules are, the basis of the rules.
Southall: No, no tendering of the document, your Honour, the document’s in.
Pagone J: Well in that case why were you reading out a tribunal determination?
Southall: I’m sorry, the tribunal determination – just for the very issue of the dates in the determination. I apologise, you’re quite right, yes. It’s just that determination dated 7 February 2011.
Pagone J: So all of this bit is completely irrelevant to your application to recall [man Y] about something that I haven’t yet been told and the reason I haven’t been told. Mr Southall, the matter may be quite important, it may be quite important because your client has placed great emphasis upon what it says has been a collateral reason of [her] to secure an outcome by putting something on the website to which she is not entitled. His testimony seems to ignore a piece of evidence which might indicate that he has not come as openly about that matter as he ought to have. It may be significant. If it is significant, it’s also significant to do it properly, and I do want you to do it properly. At the moment I am, I must say, gravely concerned about how it is that you have been put in the position of not seeing a document which at the moment strikes me as being relevant to the heart of your client’s on aggravated damages without you knowing about it. [Man Y]’s evidence may be helpful, it may make things worse, but I’m still left with how it is that the very people instructing you – Mr Smith of Ken Smith & Associates – had not brought to your attention apparently the letter from 16 March.
Southall: Well, there was a letter discovered. The letter was discovered, we said that yesterday. Perhaps there’s fault on the part of myself for not having read it or alternatively not having realised its apparent significance. If you just let me explain for one moment your Honour, the significance is clear. In the letter before you – – –
Pagone J: Is it a question of submissions or is it a question of application?
Southall: It could be a question of submissions.
Pagone J: You make your choice, it’s a forensic decision
for you to make; one or the other. If it’s an application, let’s do it properly.
Southall: I make the application to call [man Y].
Pagone J: Upon what rule and on what authorities?
Southall: If your Honour can stand the matter down, I’ll reopen the matter.
Pagone J: I will certainly give you a few minutes to do that. Adjourn the court until 11 o’clock. (Short adjournment)
Southall: Your Honour, having considered the matter and discussed it with clients and junior counsel, the application is not one to recall [man Y]. The application, notwithstanding what your Honour said yesterday is that: “Yes, I think it’s probably worth persisting with that, I don’t know whether you’ve got the transcript with you, but it might be worthwhile checking”, that was in answer to my suggestion at page 420, line 6: “In that case it’s best I think and safest if I could seek your Honour’s indulgence to stand it down to get instructions.” Well my instructions in standing it down – well, it didn’t get stood down until the end of the day – my instructions were initially to call [man Y]. All we now seek to do is something very simple, it’s probably under the inherent jurisdiction of the court in conjunction with rule 49 – there are a number of cases in Williams under rule 49 relating to modification of the order of proceedings in this court. That is simply to tender a document that has been discovered by [her] document as No.8 which I can call for…
Pagone J: I’ll hear what [she] has to say about the limited additional evidence you want to rely upon, but I didn’t understand the question to be asked and the answer to be given as contextually limited as you seem to submit.
Southall: Does your Honour mean the question by [her] of [man Y] at page 258-259 of the transcript?
Pagone J: Yes.
Southall: In that case, it’s an interpretation your Honour, but our explanation in our submission appears on the face of the documents themselves.
Pagone J: At the moment I find it staggering, in the face of exhibit 2, that the answer that [man Y] gave was given[7].
Southall: But your Honour, can I expand the application just a little bit more – not expand the nature of it but the reason for it. On the previous day [she] had cross-examined at the passages that we refer to – was cross-examining [man Y] commencing – – –
Pagone J: Just before you do that, may I remind you of what you said to me when I resumed a minute ago. You said, “All we now seek to do is something very simple” and you made references to the rule, inherent jurisdiction. “Simply to tender a document which has been discovered which you can call for it, and that is the determination of the tribunal which shows the relevance of dates in terms of when the hearing was.”
Southall: That’s true.
Pagone J: That’s what you said.
Southall: Yes.
Pagone J: Mr Southall, you tell me if that’s not the purpose of your application.
Southall: Yes, it is. It is.
Pagone J: Then how is it that what I said to [her] was inaccurate?
Southall: I wasn’t saying it was inaccurate, your Honour.
Pagone J: Incomplete.
Southall: I didn’t say it was incomplete, your Honour[8].
The Pilgrim & Butt letter and estimation that Southall, in the full knowledge that it was his own clients who requested the appraisal, tried to have a determination that it was me who requested it, so as to try to use it against me:
Southall: property valuation by Pilgrim & Butt Real Estate dated 14 February 2007, attachment 9[9]
Southall: Then, Your Honour, there are no further letters. The following document, 9 is a valuation from Pilgrim & Butt to “Dear Ginnie and John” from Mr Geoff Phillips of that firm. He says his estimation in the second paragraph is based on recent sales in Neerim North and Allambee and he puts a price on it as at 14 February 2007, between $310,000 to $325,000.[10]
Southall: Can I take you to document 9. Do you see that?
Me: Yes.
Southall: Is that a Pilgrim & Butt Real Estate longhand letter with an annexed valuation?
Me: Estimation, yes. It’s not a valuation, it’s an estimation.
Southall: “Opinion for current estimated selling price of real estate.” Does that have a date on it on the second folio of the estimation a date of 14 February 2007?
Me: That’s correct.
Southall: Pilgrim & Butt, are they valuers or estimators or land valuers known to you?
Me: No. Well, only in the fact that we received this saying that the plaintiffs had asked, could they have Pilgrim & Butt come on to our property and they asked our permission.
Southall: I see?
Me: So that’s the only, known to us, aspect.
Southall: They’re certainly local estate agents and valuers aren’t they, in Warrigal, aren’t they?
Me: They’re estate agents. I don’t know if they’re valuers.
Southall: You see the frontis piece of document 9 is in longhand signed by Mr Phillips, Geoff Phillips?
Me: That’s correct.
Southall: It’s addressed to, “Dear Ginnie and John”?
Me: That’s correct.
Southall: Does that refer to you, do you believe, to your husband and yourself?
Me: That’s correct.
Southall: Mr Phillips says, “My estimation is based on recent sales in Neerim North and Allambee”?
Me: Yes.
Southall: He puts a value, or an estimate I should say to be fair on the bottom of the entire document of between $310,000 and $325,000?
Me: That’s correct.
Southall: That document being dated 14 February, I take it that was a document that was part of the meeting at Mr Callander’s offices in March?
Me: Well, it was done for that meeting.
Southall: It was done for that purpose, thank you?
Me: That’s my understanding, yes.
Southall: Thank you?
Me: Even though I had pre-empted that by saying that “It wasn’t going to be based on the meeting – if you attend it’s not going to be based on valuation”.[11]
Southall: … Valuation by Pilgrim & Butt provided to [her and her husband] with a note saying, “Dear …”, with a note from local valuers, I think Warrigal based, of $310,000-$325,000.
Pagone J: I think the evidence was that that had not been sought by them. I think the evidence was that it had been your client.
Southall: Yes, that may have been the case. May have been nominated.
Pagone J: Not “may have been”. The only evidence about that valuer was that your client had arranged for somebody to come along, and this chap turned up, and then sent this email or this fax to them.
Southall: I can’t recall, I’m not sure where that evidence came from, it may have been [from her].
Pagone J: It did come from [her] – that’s the only evidence about it.
Southall: I don’t think she put that to my clients.
Pagone J: I think it was in response to questions that you had asked perhaps. In any event, why would there be a need to put it to your clients?
Southall: To give them an opportunity to respond.
Pagone J: To respond to what?
Southall: To an allegation that it was they who retained Pilgrim & Butt.
Pagone J: Let’s put it differently. You didn’t seek to cross-examine her about the evidence that she gave, that it was your client that had produced – – –
Southall: That’s true. I accept that. So what your Honour says would have to be accepted.[12]
This was, as said previously, all in spite of knowing full well that the appraisal was done at the behest of man X and man Y, Southall’s own clients. Man X and man Y had the email from CASACIR to Jeff Phillips of Pilgrim & Butt in their affidavit of documents and it was topped with the words: “Att Jeff, As discussed, please see Vendor’s permission for the appraisal at 140 Pearce Road Neerim Nth. Cheers, Julie McGary PH 5633 1800”, and it must be remembered that Southall charged his clients for having reviewed the affidavit of documents just days earlier to his claim under cross-examination that I had organised the appraisal, so he actually knew that his accusations were entirely unfounded, that he had deliberately hidden the true facts (including the incriminating letter), and that he was fraudulently trying to make me at fault. Further, he did not put the proposition to either man X or man Y as to whether or not they were the instigators of the estimate, yet was determined to use against me the fact that I did not cross-examine them on it when I had had no idea that it was even going to be a point of contention.
The fax in response to the fraudulent letter of 19 August 2011 was used against me by Southall:
Pagone J: Did you respond to the letter?
Me: On the website, I did. 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.
Pagone J: Did you tell them that you had changed the website?
Me: I believe so. So, I first became aware that [man X, man Y and CASACIR] were actually taking action on 15 December 2011 – that was almost four months after having been sent a letter, so I was quite surprised because I thought that, if there was a problem, they would have come back to me and said, “You haven’t addressed this or this”, so there was no [further] communication [from them] at all[13].
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?
Me: Well, without looking at the document I’d say so.
Southall: Have you got the document to look at?
Me: Only on the computer.
Pagone J: It’s part of the big exhibit, so if exhibit A, the folder of annexures is given to her – and I can’t remember off the top of my head what tab it is, but I think it might be tab 16.
Southall: That rings a bell, your Honour. If the witness could be shown that. That’s of course got one of the tabs that we now complain about[14], and that’s why we haven’t concentrated energy on it. It’s towards the end of the documents in that tab, your Honour. It’s hard to find.
Pagone J: I’ve got it, but I don’t understand that [she] was or could rely upon those pages in justification. What I understood her to say was: “When I got the letter, I responded”, and the fact of the response, not the details, but the fact of the response, she says, is a matter that I should take into account on the question of aggravated damages.
Southall: Yes, and I’m seeking to test her on that particular proposition, your Honour. Do you recall under tab 16 – can the witness be shown it your Honour, just to identify it?
Me: I have got it.
Southall: 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: 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 the plaintiffs?” 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.
Southall: What, making reference to the website?
Me: And our letter, yes.
Southall: We’ve seen from the documents which are annexed to the notice to admit, and we’ve seen from this morning when I’ve been cross-examining you, you’re capable of writing long letters, lucid letters?
Me: 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.[15]
Southall: Do you not think it would have been appropriate and it would have been a more genuine response to, firstly, to have written a letter of apology to Mr Smith, and secondly, to have openly apologised for the publications on the very medium in which you made the defamatory remarks – that is to say the Quarry Fight download?
Me: What I wanted to do was to find out what the proper things was, because I didn’t want to do something – now here’s legal proceedings that I thought well, if I do something, is it going to get me into more trouble, I need a lawyer to guide me. So I went by what they told me to do.
Southall: You only responded by going to your lawyers after the writ, not after the letter from Mr Smith?
Me: That’s correct.
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.[16]
Pagone J: Am I right in my recollection of your evidence before lunch that you amended the website, and the fax that you sent to Mr Smith was only a fax drawing to his attention that the website had been amended?
Me: That’s correct.
Pagone J: In whatever the fax was, it didn’t do anything more than just refer to the website as the source?
Me: That’s correct, yes[17].
Southall: 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 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.[18]
It must be remembered that Southall claimed costs for having reviewed this letter just days before his addresses, cross-examination and submissions on it, and therefore was fully conversant with its contents. He strongly and purposefully implied that my fax reply did not exist and that I had lied about it. He thereby knowingly and deliberately misled the court by lying to his Honour because he told the mediator[19] in November of the previous year that he knew that my 23 August 2011 fax to his instructors existed and that he and his instructors and clients had it in their possession: “By letter dated 23 August 2011: she said that she would address the issues raised, but nothing further was received by way of response [aside from her entries into the website].“
Therefore, the nasty, venomous, spiteful things he accused me of, actually related to his own legal team and himself and clients given that they all deliberately hid the document from discovery. In addition, because of his personal knowledge of the contents of the letter of 19 August 2011, he was entirely knowledgeable of the fact that the letter demanded that I actually put a response on the web, yet Southall berated me for actually having done so!
The letters of 26 July and 26 August 2010 were knowingly fraudulently used against me
These two letters were actually one and the same, with the July 2010 correcting the date of August 2010, and Southall knew it full well.
Southall: Then yet again one month later on 26 August 2010 is letter number exhibit 8. Again that’s a letter from you to Mr Smith this time – in fact both to Mr Smith. What was the purpose of sending those two almost identical letters a month apart?
Me: Actually, they weren’t a month apart at all. They’re dated a month apart but if you actually have a look at the top of No.8, it says the fax date is 26 July. I’d actually put the wrong date on it and I resent the letter with the correct date. So both of them – – –
Southall: The one at No.7, the fax’s dated 19 August 2010?
Me: Well, I don’t know, but I sent the first letter dated August in July, and then I corrected – when I realised I corrected it and said I sent it with the wrong date on it. So they are actually the same letter.
Southall: I see the contents appear to be the same?
Me: They’re identical apart from the date.
Southall: I’m just curious as to how on number No.7 the fax date is 19 August, and on number 8 the fax date is 26 July. Should they perhaps be turned around in order?
Me: No. I would have sent a covering letter, which I haven’t got with me, to say it was the wrong date. It was a correction. There’s not two letters; it’s one letter with two different dates.
Pagone J: Mr Southall, should you possibly provide the first page that was faxed?
Southall: I haven’t got it, your Honour.
Pagone J: You will see that document No.7 says “page 02”, the next page is “03”. I’m concerned.
Southall: It does. Your Honour, my instructor hasn’t got it, but I will definitely make exhaustive enquiries to enquire as to where that might be.[20]
Not surprisingly they failed to produce the “missing” pages. Since they had pages 2 and 3, they certainly had page 1 (but it was too revealing of the truth to present it so they continued to hide it).
Summary: Truth had no bearing in this case; I was not allowed to present the truth (in a court of law!!), and Southall and his team did what they could to hide the truth, both by documents, and by outright lies and deceptions. This conduct furthered the injustice against me.
[1] Quoting Ambridge Investments Pty Ltd v Baker & Ors (No 3) [2010] VSC 545 at [35], quoted in Barrow v McLernon & Anor [2012] VSC 134 at [30].
[2] Again quoting Ambridge Investments Pty Ltd v Baker & Ors (No 3) [2010] VSC 545 at [35], quoted in Barrow v McLernon & Anor [2012] VSC 134 at [30].
[3] T110:18–T111:8 (6 November 2014)
[4] T382:20-29 (16 April 2013)
[5] T416:17–T419:16 (16 April 2013)
[6] T421:6–T425:17 (16 April 2013)
[7] T465:2–T472:11, T473:24–T474:7 (17 April 2013)
[8] T475:2-27 (17 April 2013)
[9] T25:16-18 (10 April 2013)
[10] T94:26–T95:2 (10 April 2013)
[11] T365:29–T367:3 (16 April 2013)
[12] T547:30–T548:28 (17 April 2013)
[13] T342:7-17 (16 April 2013)
[14] This is one of the tabs that related to the injurious falsehood and misleading and deceptive conduct claims by CASACIR – CASACIR was voluntarily overtly removed as a plaintiff, as were each and every one of its claims, yet here they are re-introducing the tab.
[15] T394:2–T398:12 (16 April 2013)
[16] T401:20–T402:9 (16 April 2013)
[17] T466:6-10 (16 April 2013)
[18] T569:30–T570:5 (17 April 2013)
[19] Whilst it s generally forbidden to introduce matters raised at mediation, Southall himself raised the discussion and “opened the door” by his examination of his own clients and his cross-examination of me on matters that occurred in mediation.
[20] T379:8–T380:8 (16 April 2013)