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.
What do you think of people (parties and/or their legal team/s) who obstruct justice by, amongst other things, provably and absolutely committing fraud by authorising the signing of, and/or actually signing, a document that they know they will absolutely not be complying with on any lasting basis? (On a side note, the banks and AMP are currently being taken to task for something similar to this very thing, and it was called fraud in that situation).
What do you think of people (parties and/or their legal team/s) who abuse the court’s processes, by using claims and adding more and more claims (that they were never going to prosecute), to intimidate, bully and coerce another person to do something?
Both those things (and much, much more) happened to me.
It is only after recently sitting down in a quiet space and mulling over what happened that I realised the full and real reasons for man X and man Y’s decision (with the advice and assistance of their legal and quasi-legal team – amongst others: Smith, Peake, Kraan, Southall, Kaye and/or Spencer) to treat me as they have, and to take action against me as they have. At least some of the real reasons are as follows:
- because I had the ability to stop the quarry (and they knew it), they had to do what they could to stop me before I could stop the quarry;
- they had to intimidate me into removing my entire former website from the internet because it was too revealing about their conduct;
- they had to gain as much of my assets as they could for very clear and distinct purposes; and
- they wanted to make me insolvent in order to grind me into the ground (and they were in the Federal Court, and are currently in the Federal Circuit Court, trying to do so).
Firstly, they had to stop me before I stopped them
Firstly, I was not just a person who was calling man X, man Y and CASACIR to account for their actions, their lies, and their prolific failures to comply with legislation, their permit and work authority conditions, their own undertakings, and because of their severe detrimental impacts on me (and my related parties) – I was the person who could actually stop the quarry.
It therefore became incumbent upon them to try to “deal” with me by whatever means they could. Of course, they could have bought our property as man X had earlier suggested (but did not mean) in 2005, but they chose not to do so.
Initially man X, man Y and CASACIR tested me to see what I would do when they illegally deviated the flow of the waterway (locally known as “Kookaburra Creek”) while performing entirely illegal and unauthorised works on its bed and banks – they soon discovered that I would fight them, and fight them I did – taking it to VCAT. During the processes of this application a number of things happened:
- man X, man Y, CASACIR, Smith, and Peake stated that there was no waterway that ran through the our land (even though it was noted on many other documents they had in their care and control, and man X even retrospectively completed an application for a “works on waterway” permit);
- man X, man Y, CASACIR, Smith, and Peake claimed that, even if there was such a waterway, we did not have any right to use it (in spite of the Water Act 1989 (Vic) being very clear on our existing rights);
- man X, man Y, CASACIR, Smith, and Peake repeatedly refused to comply with VCAT orders, including the VCAT demand for the filing and serving of one of man X, man Y, CASACIR, Smith, and Peake‘s key documents, and which was a document that they already had in hand well before the first VCAT demand for it (with the result that VCAT issued non-compliance orders against them) – and they still refused to comply with the orders until further compliance orders were threatened, and to just prior to the hearing. In fact, on 27 July 2010, Barrister ABC told the VCAT member as fact that the report that was outstanding had not been completed when it has been (although I was not care of this fact for the next almost 3 years – not Barrister ABC may not have been aware of it having been ready either but, as a direct result of being told the report was not ready, the VCAT member did not hand down the enforcement orders he was going to hand down that day, so Barrister ABC assisted man X an Man Y to avoid the consequences of their actions);
- Just prior to the hearing in August 2010, as the result of hijacking the mediation for the enforcement application, they changed the focus of the mediation to dealing with the water claim because they most certainly did not want to have it go to a hearing scheduled for the next day. At that mediation, man Y, CASACIR, Smith, and Peake authorised and approved of man X signing a binding Terms of Settlement Agreement (“Terms”) that was very clear on a number of things, including:
- the restoration of the flow of Kookaburra Creek in a specifically timed manner – which man X, man Y and CASACIR then ignored until further legal action[1] was threatened. By the time the restoration was finally done, we had been without the flow for 18 months from the time of the illegal deviation and for 6 months after signing the Terms and, as a result, had been unable to operate our beef growing enterprise; and
- man X, man Y and CASACIR undertook to never again interfere with the flow of Kookaburra Creek; and
- they fully expected that I would believe the Terms were binding and that the water issues had been dealt with – and, stupid me – I did believe that they would have to abide by the Terms.
The fact is that (1) man X, man Y, CASACIR had only signed the Terms to avoid the hearing and the consequences of their conduct, (2) in a gross and blatant breach of ethics and morals, they had absolutely no intention of complying with the Terms on any sort of lasting basis, and (3) they then had to work even harder at getting rid of me because it meant that I could otherwise stop the quarry.
Thus, the water claim was set aside by the signing of the Terms, with no consequences for them, as was their clear intent.
In November 2010, an enforcement hearing[2] followed. At this hearing it was imperative to them that they mislead and deceive the members into believing that I was vexatious and was someone who just wanted to stop the quarry because I was a nasty person who was unhappy about having a quarry next door[3]. Instead of dealing with the accusations of their breaches (and my photos and FOI results proving their breaches), Smith, Peake, Kraan, man X, man Y and CASACIR worked hard to turn the tables on me and made it appear that I was just out to stop the quarry by whatever means I could. This included by way of the water situation that I had believed was resolved. Remembering that the following took place 3 months after the signing of the Terms where they signed that they were not going to interfere with the water ever again, the following cross-examination took place [emphasis mine]:
Mr Peake: Can I ask you, … when my client moves into stage two of the quarry and seeks permission – and it has planning permission but seeks the Water Act permission to excavate the spring, what are you going to do?
Me: Object because that would be affecting our water rights. We have – under s.8 we have water rights to that water, so will we be objecting? Yes. Our property needs that water, we can’t have a dam, we have to have that water[4].
Mr Peake: Then Condition 30 says again, “Prior to commencement of Stage 2 provision must be made for replacement flows into the gully to the south and to the northeast of the works authority area to the satisfaction of the responsible authority”. Now what that is talking about is when the spring is dug up that a replacement flow to the waterway, we’ll call it Kookaburra Creek for our purposes, is to be provided from the quarry land?
Me: Yes, by waste water and drainage, yes.
Mr Peake: And that’s not consistent with a closed system either is it?
Me: No it’s not. That’s a breach but that’s not until Stage 2, in the meantime it has got to be closed.
Mr Peake: So you allow for the fact that when the replacement flow is provided via the quarry pit dam dumping into the clean water dam, running through the wetlands and back to the waterway, that that’s okay?
Me: No, it’s not okay.
Mr Peake: That’s not okay?
Me: It won’t be okay, I can tell you.
Mr Peake: You can tell me?
Me: Yes, we’ll be fighting that.
Mr Peake: If that’s what the permit says that my client is required to do, why is that not okay?
Me: Because you’ll be taking away our rights under s.8 of the Water Act to the natural flow of Kookaburra Creek.
Mr Peake: So my client can be expecting to be back on another Water Act claim can we?
Me: I’m afraid so. We have legislated right – there has never been – you see one of the reasons why my opinion is that the Tribunal granted that is my memory of you making a statement saying there would be discussion and agreement with us and you’ve never – Casacir has never discussed it with us. It has all been put upon us that this is what you’re going to be lumped with, like it or lump it, too bad. Well, we do not agree to our water rights being taken away from us and we have every legislated right to fight it and we intend to.
Mr Peake: And I guess that will stop the quarry from operating won’t it?
Me: Well, if it does, it does. I mean the members pointed out in – I’ve forgotten which paragraph it is now, but they said that they didn’t think that, you know, it had to be sorted out immediately because [man X, man Y and CASACIR] in that case didn’t think it had to be looked at immediately and said words to the effect of, if this doesn’t – you know, if it can’t cut it then the quarry ceases. I think in 124 or something of the reasons. So Casacir is proceeding on that determination, they’re running the risk, as are we.
Mr Peake: So if my client, if it’s necessary, seeks a work on waterways licence in relation to the excavation of the spring, you’ll oppose that?
Me: Absolutely.
Mr Peake: When my client seeks to act in accordance with the permit conditions and provide a replacement flow via the clean water dam and the wetlands you’ll oppose that?
Me: Well, part of the problem there is – well, there’s a number of problems. One, there is absolutely no guarantee of any flow, if you want to call that, I’ll call it discharge. There is no guarantee of any timing, there is no guarantee of any quantity, there is no guarantee of any quality. None of that has been determined and we’re expected to just say, okay, we’ll wipe our s.8 water rights and take whatever you kindly give us of whatever quality, quantity, timing, whatever. We cannot run an agricultural enterprise under those conditions. We can’t have a dam. We rely on the flow of Kookaburra Creek otherwise our property is useless as an agricultural enterprise for what we want it for. I don’t know what else you could use it for[5].
In spite of my pre-existing legislated rights to the water from Kookaburra Creek, Smith, Kraan, man X, man Y and CASACIR had instructed and authorised Peake to imply that it was entirely unreasonable for me to want to protect my pre-existing water rights if it meant that the quarry would have to close, and later the VCAT members proved they had been suckered into believing it. However, my pre-existing rights to the flow of Kookaburra Creek are legislated and clear:
8 Continuation of private rights to water
(1) A person has the right to take water, free of charge, for that person’s domestic and stock use from a waterway or bore to which that person has access— …
(b) because that person occupies the land on which the water flows or occurs. …
(3) A person has the right to use—
(a) water taken by that person from a waterway … under a right conferred by subsection (1); or
(b) while it is within the waterway …, water which that person has the right to take under subsection (1)[6].
Kookaburra Creek certainly flowed through our land, dissecting it from close to the north-west corner to close to the south-east corner – thereby giving us the legal right to the flow. The 2008 VCAT members noted that:
102 It was Mr Porter’s[7] contention on behalf of [his client], that his client had a right to the water from Kookaburra Creek[8].
This was not contradicted at VCAT, and the only time it has been contradicted was when I was forced to take legal action[9] against man X and man Y (and CASACIR) for illegally removing the flow from our property by deviating it without a permit or licence to do so and in clear obstruction of justice and perversion of the course of justice. As stated earlier, they had to “deal” with me however they could because they would not get their permit to destroy the spring and the flow of Kookaburra Creek and, as acknowledged above by Peake, it would stop the quarry:
Mr Peake: And I guess that will stop the quarry from operating won’t it?
Me: Well, if it does, it does.
The 2008 VCAT Reasons state [emphasis mine]:
103 We find it essential that the environmental flows to Kookaburra Creek be maintained with water of the same quality as at present emerges from the spring. If the removal of the spring … requires a water licence then it is incumbent on [many X, many Y and CASACIR] to obtain one[10].
The 2008 VCAT order and the subsequent planning permit both demand that [emphasis mine]:
28. Prior to Stage 2 works a Works on Waterways Licence (under sections 160, 161 and 209, by-law 001 – Waterways Protection of the Water Act 1989) will be required.
The 2008 VCAT order and Reasons were handed down on 19 January 2009. We then had the situation where, almost 7 months prior to commencement of any works, man X, man Y and CASACIR absolutely knew that they had to get a licence or permit for the interference of Kookaburra Creek. Instead of discussions with us, or applying for a permit (which would have involved consultation with us anyway), they consciously and deliberately elected to commence the quarry and run the risk of having it shut down. In order to deal with issue, they then attacked me[11] repeatedly. They attacked me for trying to protect my pre-existing legislated rights by making it seem unreasonable for me to do so, and effectively claimed that I was in fact nasty, bitter and vexatious for trying to protect those rights. In fact, Smith, Peake, Kraan, man X, man Y and CASACIR did their very best to have VCAT ignore the real reasons we were at VCAT in 2010 (i.e. to deal with man X, man Y and CASACIR’s multitude of breaches of legislation, their planning permit and work authority, and their own undertakings), and, instead, they again turned it on to me for being vexatious enough to demand compliance. In fact, they made the blatant accusation that assisted in later turning the members against me:
Because I will be putting to you, sir, that … when it comes to planning enforcement [she] is probably the most unreasonable person that could be imagined and that rather than seeking to enforce the permit for the purpose of achieving the objectives of planning in Victoria and the policy outcomes sought in the Baw Baw Planning Scheme that it is part of an ongoing personal and vindictive campaign against [man X, man Y and CASACIR]. … Therefore the Tribunal can conclude that it’s actually a campaign against my client as opposed to an application based on sound and reasonable planning concerns[12].
Man X and man Y continued their accusations against me in their submissions:
1.4 Ultimately the [2008] Tribunal decided to grant the permit, subject to conditions.
1.10 In evidence, [she] avowed an intention to continue to bring various proceedings against Casacir [and therefore also man X and man Y] in the event that it continues to try to develop and use its land in accordance with the permit.
1.11 It is submitted that this Tribunal should draw the inference that these proceedings are part of a wider and ongoing campaign that arises not out of a genuine concern that [CASACIR] is failing to comply with the conditions of its permit, but arises of an ongoing dissatisfaction about the [2008] Tribunal’s merits decision to grant the permit.
2.5 [M]embers of the public (assuming that a breach of planning law is an offence of a public nature) have the power to step in and act.
2.6 Pursuant to section 117(2) the Tribunal may make any enforcement order that it thinks fit in accordance with section 119.
2.7 However, this is not an unfettered discretion. The power must be exercised for the purpose for which it is conferred, being to further the objectives of planning in Victoria by ensuring, in this case, that a permit holder complies with the conditions contained in the permit.
2.8 It is submitted that the application brought by [her] is not brought for that purpose. It is brought as a form of retaliation against the decision of the [2008] Tribunal to grant the permit and against the fact that Casacir has acted on that permit.
2.9 To this end, [she] demands an absolute compliance with every condition of the permit, as interpreted by her. It does not matter whether the relevant condition has any impact on her whether the breach is trivial or substantial …
The 2010 tribunal (in relation to the enforcement application) noted in its judgment:
20 The planning laws, including the planning schemes, are part of the public law of Victoria intended for the benefit of the public generally. Sometimes a citizen will commence an enforcement proceeding in the public interest although that may be combined with a personal or private interest. For example, the person may consider that he or she is suffering as a result of failure to comply with permit conditions inserted for that persons’ protection (whether individually or amongst others)[13].
21 Commencement of proceedings to protect the public and/or private interest of this sort appear to us to be appropriate and within the contemplated purpose of enabling “any person” to commence an enforcement application. Of course it is always possible for somebody to commence an enforcement application for ulterior motives going beyond those legitimate ones. Motives of vengeance or to frustrate, obstruct, annoy or to compel or induce a favourable financial arrangement would all be ulterior purposes in this sense.
22 It was suggested on behalf of Casacir [and therefore Man X and Y] that motivations behind this current proceeding extend beyond a proper protection of the public or private interests and are for other ulterior purposes.
28 [She] foreshadowed proceedings arising from an anticipated application for a licence in relation to allocation of water that will become necessary if the quarry project proceeds to its stage 2 as approved in the existing permit. Apparently her decision is already made on the basis of general understanding of what would be required without waiting for details and specifications that would enable an assessment of a specific application on its merits.
So convinced were the members by the submissions made under the authority and approval of man X, man Y and CASACIR, that the members entirely ignored the fact that I merely answered questions put to me by Peake (questions put to me for the purpose of making me appear to be unreasonable and vexatious), even though man X, man Y and CASACIR had been very clear that they intended to destroy the catchment, watertable, spring and flow of Kookaburra Creek in spite of having signed the Terms and in blatant breach of the Water Act. They worked hard at turning it on to me, and they won. How is that justice?
The fact is that they had only signed the Terms to avoid the hearing and the consequences of their conduct – they categorically had no intention of complying with the Terms as shown by:
- the deliberate delay in the restoration of the flow until further legal action was threatened;
- the intention to continue with their plans of destroying the catchment, watertable, spring and Kookaburra Creek’s flow – as clearly identified by Peake’s cross-examination 3 months after the Terms were signed (entirely regardless of having his clients having agreed to and signing the Terms, and in spite of Smith, and Peake himself, both having approved the documents and the signing of it);
- a later produced Spring Water Management Plan which identified the fact that the works to destroy Kookaburra Creek, its catchment, watertable and spring were all going to continue (entirely regardless of having agreed to and signed the Terms).
In fact, they could not comply with the Terms on any lasting basis because it meant that I had won and the quarry would have to stop if they could not interfere with the flow and proceed with their destruction.
Of course, this was not the end of it . Until we sold the property in February 2014[14] I still retained the right to object to the works that, according to Peake, would have stopped the quarry. Smith, Kraan, man X, man Y and CASACIR all knew it – which meant that whenever and however they could, they had to do what it took to knock me down and get me out of the way – and they did it, as seen in the sections below.
By signing the binding Terms in the full knowledge that they would not be complying with its terms and conditions again proved their obvious duplicity, the “level” of their moral and ethical integrity, as well as their obstruction of justice, misleading and deceptive conduct, perverting of the course of justice, abuse of the processes, as well as their fraud.
Secondly, they had to intimidate, bully and coerce me into removing my entire former website
As a result of man X and man Y’s[15] conduct at VCAT, they won. As a result of winning, they were then even more emboldened to do pretty much as they liked at the quarry – which meant further ignoring of legislation (including the planning scheme), further ignoring their work authority and permit conditions, and further ignoring their own undertakings – and certainly further ignoring our objections to their attempts to take our pre-existing legislated rights from us[16]. All this caused us severe damaging impacts (including anxiety, depression and severe financial strain – along with the detrimental noise, dust and water issues – amongst others)). As a result, in an act of desperation, I created a very factual former website (including posting photos) which exposed the activities, inter alia, of man X, man Y and CASACIR. Obviously man X and man Y took offence at having their conduct exposed to those who wanted, or chose, to read about it.
They say the truth hurts and I guess it did because, rather than changing their conduct, first of all they authorised Smith and Barrister ABC (a short-term pseudonym required by court action) to write a letter to me almost completely full of fraudulent denials and claims, and then, when that did not achieve the desired result, Smith, Kraan, Southall, Kaye, man X, man Y and CASACIR took action against me for defamation (by each of man X and man Y) and injurious falsehood and misleading and deceptive conduct (by each of man X, man Y, and CASACIR).
Through the obstruction of justice, Smith, Kraan, Southall, Kaye, man X, man Y and CASACIR used those claims and actions against me as a big stick to try to force, intimidate, scare and bully me into removing my former website in its entirety – it was actually never about some of the words they later complained about – and they abused the court’s processes in even attempting to gain, let alone actually gaining, their end goal[17].
To be clear, the reason for Smith, Kraan, Southall, Kaye, man X, man Y and CASACIR’s decision to take action against me was revealed during the trial and I was entirely caught by surprise – therefore I had not had any time to prepare for it and wasn’t fully conversant with the importance of it until after the trial had finished. How was I to know at the time that they had no intention of actually openly prosecuting the claims of injurious falsehood and misleading and deceptive conduct? How was I to know that they would not retain openly CASACIR as a plaintiff? CASACIR and all the claims of injurious falsehood and misleading and deceptive conduct were simply their way of bullying, scaring, forcing, coercing, and intimidating, me into the removal of my entire former website – not the words purportedly complained of.
Having said that, they fraudulently secretly ran those claims although having claimed to have withdrawn them – and that was virtually admitted in a number of ways.
Smith instructed in relation to, Kaye assisted in, and man X and man Y authorised and approved of, Southall’s method of cross-examination of me so as to induce a belief in the minds of the court, and even me myself, that facts were different to reality when he proved that the case was not just about defamation at all, but had far more reaching purposes. He proved this, inter alia, when he asked me in cross-examination:
[S]o you just thought [the trial and case] was about defamation?[18]
Man Y certainly made it clear in his testimony and, with Smith instructing and Kaye assisting, both man X and man Y authorised and approved of Southall claiming in addresses and submissions, that it was a matter of greatest importance and even urgency that they had to do whatever it took to have my entire former website removed [emphasis mine]:
Now on the 16th we had this matter mediated before Mr Geoffrey Gibson of counsel. That mediation didn’t succeed. And then – sorry the 13th, 13 November. Then three days later we had – the website was removed which is basically what we’ve been after …[19]
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.[20]
Mr Southall: Did you immediately contact Mr Smith for the purposes of sending a letter?
Man Y: Yes.
Mr Southall: For the purpose of trying to stop the website?
Man Y: That’s right.[21]
That is true, the words complained of were removed but what we sought was a removal of the website in that letter from Mr Smith and the website was not removed, significantly, until November 2012, only a few months ago, I think a day or two after a mediation of this case occurred on 13 November 2012, at which [she] was represented by both senior and junior counsel. 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.[22]
The fact is that man X and man Y saw that the truth contained in the former website was far more than uncomfortably revealing – they fiercely hated it. Man X stated in his sworn testimony that he was unhappy that my former website made their actions and inactions widely visible to “everybody”, and it further summed up their attitude to my former website very eloquently when he testified [emphasis mine]:
[A]fter a visit you would upgrade the website … We have always done something but you’ve had to bring it to our attention and everybody’s attention again.[23]
In spite of the entirety of the former website not having been pleaded in any regard or at any time, Smith instructed in relation to, Kaye assisted in, and man X and man Y authorised and approved of, Southall repeatedly referring to the entire former website being on the internet for over a year, and that it was the entire former website that caused man X, man Y and CASACIR’s problems and concern and, as seen, they desperately wanted it entirely removed [emphasis mine]:
That between 12 September 2011 and 11 October 2012 there were, according to the document discovered by [her], this witness, there were visits to the website, the Quarry Fight website.[24]
It is also relevant that website was on the internet for a lengthy period of time – over a year on total.[25]
His Honour: What’s the position at the moment about what you allege to be defamatory? Are the statements still on the website?
Mr Southall: No.
His Honour: They are all gone?
Mr Southall: The whole lot of them were taken down, the website was taken down one or two days after the mediation on 13 November last year, 2012. The offensive, allegedly defamatory statements or what we say are the defamatory statements were allegedly removed as per the particulars to paragraph 16 of the extant defence, were removed in or about February of last year, 20 February I think it is, 2012. So the website remained but the words complained of were removed.
His Honour: So there’s no continuing – from your point of view, there’s no continuing defamation?
Mr Southall: No…[26]
[I]ndeed, 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 [sic] August, …. So six months they were on the web, and then for another nine months until mid-November 2011 the whole of the website, apparently less the offending remarks, …, they remained on the website for people to read for another nine months. So overall 15 months from the date when the letter was first sent.[27]
No, we’re not [complaining about the other remarks apart from these remarks]. People who read the defamatory remarks would know that they’re associated with [man X and Y], and for that matter Casacir, and there are references to those entities continuing whilst that remained on the website. … Absent the defamation, yes.[28]
We say that the extent of the dissemination of this harmful website is apparent from the evidence.[29]
It’s a letter written in clear terms by Ken Smith & Associates, the solicitors for [Man X and Y] and it sets out, and very soon after this website had appeared, it sets out [Man X and Y’s] real concern about what was contained in her website at that time, but subsequently added to by further uploading, not known then.[30]
[T]he damages that His Honour found of 12000 and 8000 respectively for [Man X and Y], we say that’s evidence, it’s manifest that he must have erred in the disentangling exercise because he must have excluded from his assessment any harm that another contributing cause, concurrent contributing cause, such as a website and other causes…[31]
It’s also relevant, in paragraph 29, that the website was on the internet for a lengthy period of time. I’m putting to one side the aggravation in terms of it staying there, … [it] remained in operation … for another nine months until November 2011 [sic] when they were taken down in mid-November by [her].[32]
Nevertheless the website remained in active form until the middle of November 2012.[33]
Man X fraudulently testified to the Court that [emphasis mine]:
[T]here were site visits conducted because of the website[34]
Man X knew that this was deliberately false testimony (and the authorities confirmed that his written claim (filed with the court as truth and fact) and his sworn testimony (sworn to be the truth, the whole truth and nothing but the truth) was false: i.e. my former website had nothing to do with any site visits – in fact, Ms Bignell testified that there were less site visits since the former website). It must be noted that man X’s testimony was about my entire former website and not the words complained of, and proved that it was my entire revealing former website that was the problem, and not the words they belatedly complained about.
Man X and man Y exhibited a letter from a different solicitor (in relation to one of man Y’s customers who was extremely dissatisfied with his company’s work and man Y’s own personal misrepresentations to her). Regarding that letter, man X and man Y approved of Southall continuing to assert that the words had remained on the former website in spite of knowing full well that they had been removed [emphasis mine]:
His Honour: So it’s not the defamation that’s caused the problem in that letter?
Mr Southall: It’s the website that [previously] contain[ed] the [purported] defamations that’s caused the problem.[35]
Southall’s claim was made in spite of the fact that the words belatedly objected to had been removed months prior to the letter and, in any event, that section had never contained any of the words that man X and man Y had purportedly objected to.
Not having been content to continue to wrongfully insert the entire former website into the trial (and its preliminary hearings), Smith, Southall, Spencer, man X and man Y then went on to insert it into their appeal, regardless of it never having been pleaded, and in spite of Pagone J having been very clear that the entirety of the former website was entirely irrelevant[36].
However, his Honour’s dictates that the entire former website was irrelevant did not stop Southall (acting under the instructions of Smith, with the assistance of Spencer, and with the authority and approval of man X and man Y) [emphasis mine]:
Mr Southall: Those extracts were handed up to the court with no problem, no difficulty, for His Honour to consider in quite a thick folder of all the relevant sections of the Quarry Fight website, whereas, in this Appeal Book are just those pages containing the defamatory imputations which I’ve handed up on effectively a one page document earlier.
Ginnane AJA: But the website had lots of other things on it, did it?
Mr Southall: Lots of other things. It was a large and protracted website, and it was uploaded progressively for almost 12 months, but the defamatory aspects, His Honour correctly found, if I might say so, ran from five to seven months, until they were taken down, I think, early in 2012.[37]
Above, Southall had himself noted the innocuousness of the words subsequently found to be defamatory (because truth was not allowed to be presented at court – how extraordinary) [emphasis mine]:
[J]ust those pages containing the defamatory imputations which I’ve handed up on effectively a one page document.[38]
Southall effectively admitted that he believed that he had succeeded in intimidating and bullying me into removing the entire website because of his threats [emphasis mine]:
Mr Southall: Nevertheless the website remained in active form until the middle of November 2012. That is correct?
Me: That’s correct.
Mr Southall: Was it mere coincidence you took them down two or three days after the mediation before Mr Gibson in last November. Was that mere coincidence?
Me: It was mere coincidence.
Mr Southall: Mere coincidence?
Me: If I can elaborate.
Mr Southall: Please do.
Me: Yes, the legal team and I got together and said, “Okay what’s the best thing to do, do I really have to have it up”, you know, “We don’t want to be causing dramas”, and I said, “Okay, I’ll pull it down”, and that’s why I pulled it down.
Mr Southall: Our respective views as to what constitutes a coincidence obviously varies. I would have thought that was – and I put to you that that was a direct consequence of what you were told at the mediation by me.[39]
I pointed out to Pagone J that man X and man Y’s focus was on my entire former website, and this was not gainsaid [emphasis mine]:
Mr Southall went on about the rest of the website. The remainder of the website had no relevance to the case and was not pleaded to. It was agreed that it no longer held any alleged defamatory material, so how long it remained up is of no consequence to the case, the claim, or your Honour’s determination.[40]
Mr Southall went on about the rest of the website. The remainder of the website had no relevance to the case and was not pleaded to. It was agreed that it no longer held any alleged defamatory material, so how long it remained up is of no consequence to the case, the claim, or your Honour’s determination.[41]
Southall told Pagone J, as fact, that [emphasis mine]:
We are not seeking to persuade your Honour that the website at large is the defamatory document.[42]
So they really were, by osmosis, trying to fraudulently say that my entire former website was defamatory. It must be noted that consciously the removal of my entire former website was as an act of good will. However, after the case was finished and after reviewing all the issues, my feelings rose again, and I realised that I had removed the website as the result of their intimidation, bullying, coercion, and scare tactics through the introduction and maintenance of the injurious falsehood and misleading and deceptive conduct claims and CASACIR.
Pagone J noted man X and man Y’s attempts to assign blame on my entire former website, and on the length of time the remainder of my former website was on the internet (after the words complained of were removed) [emphasis mine]:
Under the claim for general damages, Senior Counsel for [man X and man Y] added that it was “also relevant… that [her] website was on the internet for a lengthy period of time – over a year in total”. The fact asserted in the submissions, so stated, is not quite accurate and requires some modification. It is accurate to say that the website as a whole may have been on the internet for over a year in total but it is not accurate to understand from that statement that the offending words were on the website for the whole of that time that the website was on the internet. The domain name was obtained by [her] on 10 June 2011 and she admitted in her defence that she uploaded and modified text on the website from about that date. The first words complained of, however, did not appear until August 2011. The website was removed on 15 November 2012 but the words particularised as defamatory had been removed in February 2012. Thus the website (and its irritating effect) may have been operative for “over a year in total” …[43]
[Her] evidence …, which I accept, is that on or about 23 February 2012 she received a folder … highlighting the words said to be defamatory and cross-referenced to the paragraphs in the statement of claim alleging the defamation. [She] 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 [for many X and man Y] that the website had been on the internet for over a year in total.[44]
Man X, man Y and Southall admitted that the covert principal purpose of the action was the removal of the entire former website (in spite of having admitted that it was not defamatory). It is contended that they tried to use this to get yet further unwarranted financial benefit for themselves, and to try to drag me down further than they already had. The removal of the words they specified as having found offensive (although true) was a ruse by which they abused the court’s processes to ultimately obtain their second objective – the removal of my entire former website. The awards of damages, interest and costs in the many hundreds of dollars were the icing on the cake for them.
Having achieved their goal of the removal of my former website, the very next day they overtly removed all the claims of injurious falsehood and misleading and deceptive conduct, and removed CASACIR – proving that they had only maintained them until they wore me down into removing my former website as a whole. Then, having achieved that goal, just 15 days later they revealed their explicit replacement goal – as revealed in the bill of costs served on me on 8 March 2017, where it admitted that the strategy was to “access [my] assets”[45] – which they have certainly succeeded in doing, and are still trying to achieve (more on that under the third reason for third action).
Of course, all that was also for the purposes of trying to drive me out so that I would not be in a position to object to their legally required application for the destruction of the Kookaburra Creek and the catchment area, watertable and spring with fed it – my objection would have, according to Peake, stopped the quarry.
It is clear from the above that the very core of Smith, Southall, Kaye and/or Spencer, and man X and man Y’s case against me was, at best, an obstruction of justice, an abuse of process, was inaccurate, misleading and deceiving, and caused me to have to pay them many hundreds of thousands of dollars in damages, interest and costs.
Thirdly, they had to gain as much of my assets as they could
Then they had to try to get as much of my assets as they could. This was not an arbitrary decision or an accident – it was a strategic move made with intent and purpose after discussion and with strategy and tactical sessions as how to accomplish their goal, and they each had a real financial incentive to keep the actions going.
In trying to get as much of the value of my assets as they could, by obstruction of justice, perverting and attempting to pervert the course of justice, abusing the processes and acting falsely:
- at VCAT: various of them actively lied to VCAT (including in sworn affidavits, in verbal testimony, in addresses and submissions and in documents – and won costs);
- at Court:
- various of them deliberately lied in relation in relation to the VCAT costs appeal at court (and won costs);
- various of them deliberately lied (including by lying under oath in verbal testimony, and twisted facts and actively hid the truth in submissions, addresses and in documents – and won damages and costs);
- back in the lower court in 2015 various of them lied (including by deliberately and twisting facts and actively hid the truth in submissions, addresses and documents – and won interest on the damages, and costs);
- at the Court of Appeal:
- various of them deliberately lied to the 2014 court of appeal (and twisted facts and actively hid the truth in submissions, addresses and documents – and won elevated damages and the right to interest, and costs);
- various of them lied to the appeal court in 2016 and 2017, by twisted facts, and actively hid the truth in submissions, addresses and documents (and won costs);
- at the Federal Court:
- man X and man Y instructed Green to lie by instructing him that I had not paid the money to them (that I had provably paid, and even the Legal Services Board said that I have paid), and that I had taken action against them for fraud over the previous 4-5 years (when there has been no such action to date) – all in an attempt to make me out to be a liar when it was them;
- at the Federal Circuit Court:
- man Y filed and served an affidavit proving that there was falsely sworn evidence in it. A hearing is being held in June at which time he will be cross-examined on the contents; and both man X and man Y will be cross-examined on their conduct and truthfulness (or otherwise).
It all worked exceedingly well for them. They did what they did to get as much of the value of my assets as they could, and they won – and man X and man Y (and/or CASACIR) were paid almost half a million dollars by me for their efforts. Further, they are claiming a further almost half a million dollars.
Why would we think that any of them would even consider stopping their conduct – their conduct helped them accomplish their goals. They are all entirely unapologetic and unremorseful, and why wouldn’t they be – why would they be sorry for getting what they wanted?
By this conduct before VCAT and the courts, man X and Y’s focus, intent, motive and goal was to try to do at least three things: (1) to try to teach me not to mess with them, but most importantly: (2) to limit my ability and will to fight them; and (3) to limit my funds (which they did by taking as much of the value of my assets as possible). By doing so they forced me to sell our land with two results:
- it meant that, because I had been forced to sell the property, I was no longer in a position to call them to account for their continued breaches because I no longer lived there; and
- it meant absolute success for them in that, again because I had been forced to sell the property, and because I no longer lived there, I was not in a position to be able to stop the quarry by my objection to the destruction of the catchment, watertable, spring and flow of Kookaburra Creek.
This was a massive win for them, being – far, far bigger even than winning the fraudulent defamation case with its many hundred of thousands of dollars in damages, interest and costs. This win meant well over a hundred and fifty million dollars in extracting the resources that they would otherwise have lost when the quarry was forced to stop – they had to stop me before I stopped them, and they succeeded.
Fourthly, they wanted to make me insolvent and bankrupt
I have maintained from the start that man X, man Y, CASACIR and their teams wanted to grind me into the ground. I don’t believe that they have had someone stand up to their bullying and attempts at intimidation the way I have, and they cannot stand it.
Man X and man Y are, as is clear, now taking me to court in an endeavour to make me bankrupt in an effort to try to further limit me in what I can do. Even Ryan R of the Federal Court acknowledged that [emphasis mine]:
[She] claims that [man X and man Y] were aware she was not capable of paying the debt at the time of the issuing of the bankruptcy notice and accordingly, it can be concluded that [man X and man Y] have issued the notice for an improper purpose. … An awareness by [man X and man Y] that [she] may be insolvent supports the conclusion that they were intending to invoke the insolvency jurisdiction of the Court rather than for some other purpose such as debt recovery[46].
Man X and man Y‘s efforts have been exposed and they can now be seen for who and what they really are – people who will gather those around them who will do whatever is needed to get the results man X, man Y and CASACIR want.
[1] The re-establishment of the water claim
[2] Required by the fact that man X and man Y (and CASACIR) had repeatedly and consistently failed to comply with many of the conditions of their permit and/or work authority (including conditions relating to noise, dust, water, pollution, visual amenity, and safety issues).
[3] On a side note, I have very little time for someone who buys next to a working industry and then complains about it – however, we owned our property for 3 years prior to man X and man Y even looking at the land they later bought with the prospect of opening a quarry there. Therefore, I had every right to complain about the way they (1) ignored my rights and (2) just did as they jolly well liked by effectively thumbing their nose to legislation and the law.
[4] T43:20-17 (24 November 2010)
[5] T88:8–T90:9 (24 November 2010)
[6] The Water Act 1989 (Vic)
[7] The then barrister acting for my related parties and me
[8] Their determination, dated 19 Jan 2009)
[9] Where they claimed that Kookaburra Creek didn’t even exist – in spite of their other documents acknowledging its existence
[10] Again, their determination dated 19 Jan 2009
[11] Verbally and in writing
[12] T107:19-27, T107:31–T108:3 (24 November 2010)
[13] Country Endeavours v Baw Baw SC (RBRD 070211)
[14] The sale was forced upon us by man X and man Y’s conduct outside of the quarry impacts resulting in the need to sell to cover costs, as well ad not wanting to be there because of the quarry impacts – with the sale resulting in a $365,000 loss. More on this later.
[15] Man X lied under oath in affidavits and verbally at VCAT, and man Y has confirmed that he checked and approved what was sworn to, while not actually giving any of the sworn testimony himself.
[16] Not just our water rights, but our rights in relation to noise and dust amongst many others.
[17] This was discussed at length and proved earlier in the affidavit.
[18] T364:4-5
[19] T4:5-10 (23 November 2012)
[20] T48:4-7
[21] T223:11-14
[22] T48:14-24
[23] T168:28-30, T220:14-16
[24] T407:18-21
[25] Man X and man Y’s closing submissions at [29].
[26] T125:25–T126:11
[27] T511:11–T512:8
[28] T512:11-21
[29] T538:18-19
[30] T34:13-17 (6 November 2014)
[31] T94:10-16 (6 November 2014)
[32] T540:21–T541:5
[33] T402:31–T403:1
[34] T146:13-14
[35] T517:14-17
[36] Judgment, Reasons at [31] & [34]
[37] T30:10-24 (6 November 2014)
[38] T30:13-15 (6 November 2014)
[39] T402:31–T403:15
[40] T587:31–T588:6
[41] T587:31–T588:6
[42] T532:17-19
[43] Judgment dated 23 May 2013, Reasons at [31].
[44] Judgment dated 23 May 2013, Reasons at [34].
[45] Item 318
[46] The un-numbered and un-paginated determination of Ryan R dated 30 January 2018, at page 5