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.
Exaggerations
One example of Southall’s great disregard for the truth by exaggeration is where he grossly and erroneously added to his client’s own exaggeration [emphasis mine]:
It had an adverse impact upon [man X’s] reputation as well as embarrassment and hurt feelings whenever he was out socialising.
“Whenever” could be every time, not sometimes! So, according to Southall, no matter whom man X was with, and wherever he was, he was embarrassed and hurt. So, sitting in a train surrounded by strangers; sitting in a restaurant surrounded by loved ones; walking down the road where no-one knew him and he knew no-one he was embarrassed and hurt! I find “whenever” highly unlikely, another gross exaggeration and another attempt by Southall to sway the court.
Deceptions about the addition of clause 9B to the 6th and 7th iterations of their statement of claim
In great disregard for the truth, Southall told Pagone J, as absolute fact, that the addition of paragraph 9B into the last two iterations of their statement of claim was done with the consent of my legal team, and under the orders of Beach J. In spite of the truth being entirely otherwise, Southall grossly and erroneously claimed [emphasis mine]:
Southall: In the statement of claim you will see that there’s a 9(b) at the foot of paragraph 3. It’s underlined, hopefully underlined in the 20 March document – sorry, 2 April document.
Pagone J: Yes, I saw that.
Mr Southall: It pleads: “Further and alternatively, the downloading and publication … (reads) … anywhere in the world.” Your Honour, that paragraph arose from a recent decision of Burns J of the Supreme Court of Australian Capital Territory and His Honour does refer to other authority which supports that very proposition, that you don’t have to only rely upon paragraph 9(a), which is also self-explanatory: “That the website publications were downloaded from in and around August 2011 by persons doing business”, et cetera. That’s, if you like, directly related to the authority of Dow v. Gutnick but the alternative is, if we need an alternative and we don’t, in our submission, it can be inferred, says Rowe and certain of the authorities referred to in it, that the website publications were downloaded by reason of the very fact that they were made on the – – –
Pagone J: Do you need 9(b)? Do you need this additional paragraph?
Mr Southall: We would prefer to have it in, Your Honour, leave’s been given.
Pagone J: Yes, but it’s not been pleaded to, has it?
Mr Southall: No, it has not.
Pagone J: Might that cause you a problem?
Mr Southall: No, it might cause the defendant a problem. It doesn’t cause us a problem at all. We amended pursuant to the order made by Beach J.
Pagone J: That was an order where 9(b) was present, was it?
Mr Southall: It was an order by consent, Your Honour, before Beach J.
Pagone J: Were they consenting to 9(b)?
Mr Southall: Yes, they were, the pleading was in front of them and in front of the court.
Pagone J: So those representing the defendant had a version of 9(b).
Mr Southall: Yes.
Pagone J: And it was consented to and no leave was sought to respond, is that what you are telling me?
Mr Southall: Apparently that’s so, Your Honour. I beg your pardon, when Your Honour used the term “those representing her”, she was self represented at that time.
Pagone J: So may not have understood the significance of what was happening.
Mr Southall: Possible, Your Honour, possible.
Pagone J: You might want to take on board whether you do need 9(b), it’s a forensic matter for you.
This was knowingly grossly erroneous for the following reasons:
- the first iteration of their statement of claim with 9B was dated 21 March 2013 and the second was dated 2 April 2013 (this is the iteration used at court);
- the directions hearing before Beach J was on 23 November 2012,
- that issue was not presented, ventilated or in any way discussed before Beach J,
- leave was not given by the court for its inclusion,
- the very first that I heard of it was under letter to me directly from KSA dated 15 March 2013 (4 months after the hearing before Beach J);
- it was not consented to by my then legal team, because they knew nothing of it as they had ceased to act a week prior to the first production of the issue,
- I was not self-represented until 8 March 2013[1].
Thus, yet again, Pagone J was seriously deceived and misled by Southall’s “inaccurate” submissions[2].
Southall’s deceptions about reliance upon hearsay and persons not giving evidence
In great disregard for the truth, Southall made submissions regarding non-reliance upon persons not at court. In doing so, he gave the following fraudulent binding undertaking before the judge:
I can assure [the defendant] that those who aren’t [witnesses] and who are not giving evidence, then their evidence will not be relied upon or referred to or what information.
Having made that grossly erroneous submission before Pagone J as absolute truth, Southall then went on to fully rely upon those self-same non-present persons and what they supposedly said, and did so by the significant amount of hearsay during his submissions and addresses, for example, but certainly not limited to the son of man Y where Southall gave 2.25 pages of transcript addresses relating to what the son thought and did, even though he was not a witness. In addition, in relation to others who were not witnesses [emphasis mine]:
In about August 2011 a website appeared, if I can put it this way, to the shock and horror of the plaintiffs and those with whom they worked and socialised.
This person advised him in about August 2011 that he had looked at a website – that he looked up Casacir quarry on the internet and he had been directed to the Quarry Fight website automatically when keying in the word “Casacir”… He was also told by a prominent quarry member, Mr Peter Barro of Barro[3] Quarries, that he had also seen and observed the Quarry Fight website on the web.
A couple of his employees at Quality Roads Pty Ltd, which is one of the group, have pulled him aside and made comments about, “Things must be pretty tough at the moment”, or words to the effect, in relation to the publication of the website: “They told me they had heard about the website through the rumour mill.”
So far as dissemination, on two or three occasions in the last few years he’s been at job interviews of potential new employees of Stabilime group where those potential employees have specifically mentioned having seen the Quarry Fight website online. He’s heard discussion around the industry about the website. For example he was president of AUSTAB, which is short for the Australian Stabilisation Association. In that capacity he’s had to attend a number of industry functions and people at those functions were talking about the Quarry Fight website when it was on the web between August 2011 and the end of 2012. By way of further example, he recalls customers and suppliers mentioning the website to him.
He’s aware of other employees in the Stabilime group who have been monitoring it and printing parts of the website for the group.
In particular, Southall submitted to Pagone J and their Honours of the Court of Appeal, as fact, that there were people who expressed their concern – that is clear hearsay (and even double hearsay) and was false given that he did not bring any of those people to give testimony confirming what they said. Note also Southall’s disparaging comments about the low level of intelligence of people (particularly employees) who believed the website or that it would have any impact [emphasis mine]:
He’s had people, particularly in his organisation who have made enquiries about the stability of the firm, their concern about – these are people at a lower level who might not be expected to have a high degree of insight and intelligence who have simply expressed worry about their position and about whether these downloads on the website represent a more general malaise in the company.
[R]eference was made to the evidence about the extent of gossip in the road making community. There was, I think, no doubt about the dissemination of the defamatory words within the industry and more broadly”. That was His Honour’s finding.
Secondly, at least one of [man Y’s] employees had called about concerns expressed by customers of the business including VicRoads and Baw Baw.
“A lot of people had mentioned the website” – this is an important reference. “A lot of people”, he said, “had mentioned the website to him including other employees, subcontractors and at least one customer”.
There’s one particularly graphic account of how Ms Bignall, who was the state government departmental representative in the area, how her 19 year old daughter – His Honour says, “Ms Bignall gave evidence that the website had been drawn to her attention both by a planning officer at the Department of Primary Industry and by her 19 year old daughter, who was a university student at the time and who happened to come across the website when seeking to find her mother’s phone number by a Google search.” Now one can only infer how many other instances similar to that occurred.
[A]nd again I refer to the graphic illustration of Mrs Bignall in relation to her 19 year old university student daughter.
Isn’t it interesting that Bignell’s daughter had such a poor relationship with her mother that she had to look up the internet to find a contact for her (and did not try the DPI site) – I found this testimony to be almost unbelievable.
Southall embellished when advising on the number of witnesses
Southall deliberately misled their Honours of the Court of Appeal by embellishing the number and status of the witnesses:
[W]ith the aid of the witnesses to whom Your Honour, Justice Ginnane, referred to, they were called and they were senior people both in private industry and in the local government community, and also in the state government department in their region, they all gave evidence of their knowledge of the website and also how they came to become aware of it.
It sounds as if there were a lot of high-ranking people, doesn’t it! However, the real situation was that there was only one person in the industry, one in local government, two in state government, and one employee (who presumably wanted to retain his job). There were 13 people proposed as witnesses, but 6 either refused to swear to what was proposed they swear to, or what they would be testifying to would not have been helpful to Southall and his clients, and may have even been harmful to their case, because those others were not brought forward as witnesses. Even McClure (the one and only industry witness) was asked by Pagone J:
His Honour: I just want to ask one or two things myself, if I may. Mr McClure, have you met [the defendant] before today?
Mr McClure: No.
His Honour: Never?
Mr McClure: No, never.
So very unhelpful to Southall’s clients was his testimony that Pagone J thought that he must have known me.
Southall’s deceptions over the claims of and who was responsible for them
In great disregard for the truth, under directions of Southall, the claims for injurious falsehood and misleading and deceptive conduct were purportedly withdrawn by man X, man Y and CASACIR. Southall made inaccurate misrepresentations about it to Pagone J i.e. claiming that those claims only related to CASACIR and not to either man X or man Y [emphasis mine]:
The reason why the order was made in respect of Casacir was that the second and third claims – that is, the injurious falsehood and misleading deceptive conduct, were claims which peculiarly Casacir was prosecuting. By reason of the amendment deleting those claims, the order was that the third plaintiff – that is, Casacir – pay the defendant’s costs of defending the claims made by it to be taxed in default of agreement on a party-party basis. I agree with you, that order doesn’t cover whatever costs have been incurred by the defendant in respect of other costs of and occasioned by the amendment, but one can’t readily conceive what other costs there would be.
This submission was made by Southall as absolute and unquestioning truth is in spite of man X personally having 12 claims and 12 denials in each withdrawn category (48 claims and/or denials over-all withdrawn claims and denials), and man Y personally having 3 claims and 3 denials in each category (12 claims and/or denials over-all withdrawn claims and denials). In fact, Smith swore an affidavit (with input from Southall[4]), which acknowledged that that there were costs caused by man X and man Y’s claims [emphasis mine]:
[A]fter hearing argument from Senior Counsel for the respective parties, [Beach J] ordered that Casacir Pty Ltd pay [the defendant’s] costs of defending the claims made by it … His Honour was otherwise not persuaded to make any order in respect of [man X and man Y’s] discontinuance of the injurious falsehood and misleading and deceptive conduct claims.[5].
Southall’s submission was made with the clear intent to stop costs being awarded against his remaining clients, regardless of the truth.
Southall deceived the court about matters disputed or not agreed with
Southall made inaccurate claims that I had not disputed testimony:
In relation to the publications pertaining to [man Y] – this is even more stark your Honour, and more clear – there can be no basis at all for making the allegations against him. Given that he gave sworn evidence, which [the defendant] did not attempt to undermine or contradict, [man Y] had never given evidence at VCAT and he had never attended any community meetings, notwithstanding the two most serious allegations against him related to those two issues.
By exemplar we say at footnote 14, for example the clear explanation given by [man X] when he was challenged about the security of the quarry site at transcript page 206 line 13-25. You will recall he gave the evidence which wasn’t questioned, which wasn’t gainsaid, that there were two separate roads, there were two separate gates, the gate to the quarry was locked with a chain on it, and the other gate was used by farmer Lockett who took his livestock through there.
Southall knew he was deliberately making inaccurate submissions here because, inter alia:
- I had most definitely made comment that [man Y] was just a guilty because he was a director, and that he had admitted to having checked and approved the (fraudulent) sworn information.
- I had actively and extensively challenged [man X] about the site security.
These were some of the multitude of Southall’s inaccurate claims that helped sway the court judgments.
In great disregard for the truth, Southall further lied to the court by making inaccurate claims of me having agreed to things that I most certainly did not agree with:
- Southall claimed that all my allegations in relation to my application under s29 of the CPA related to costs:
In all – could I say, all the allegations – and I do not think [the defendant] would gainsay me on this, all the allegations are going to an argument – her argument in relation to costs.
This inaccurate claim was made in order to sway Pagone J from looking at Southall’s conduct. It was entirely knowingly inaccurate because Southall subsequently admitted that the application was about his conduct and the conduct of others – i.e. it is not about conduct when he doesn’t want it to be and it is about conduct when he wants to appear horrified that his and/or others’ conduct has been questioned.
- Southall inaccurately claimed:
[The falsity of the publications] which has been sworn to by my clients and was never gainsaid by the defendant.
Southall claimed that (1) the entirety of the website publications were false when they were not – the publications were true and honest, (2) that man X and man Y had sworn to the falsity of the website publications – when they most certainly had not and, (3) that I had never gainsaid it, when I most certainly had and Southall had complained to the court that [emphasis mine]:
… her position would appear to indicate that she still retains anything that she can retain, including truth.
In addition, I had provided affidavits and complaints about their claims before the Court of Appeal that the website was false when they had not pleaded it in any way before Pagone J, and had in fact refused to allow the truth to be brought to bear. In fact, Southall assured his Honour, as fact in his submissions that:
Your Honour will note from the pleadings that we didn’t plead innuendo, either true or false innuendo, and we didn’t plead any subtle or specious or intellectual basis upon which the words would be considered
He said that neither truth nor falsity was pled, so it makes a mockery of his earlier submission.
Southall made the inaccurate submission that my team agreed that the website words were defamatory and that I had admitted it [emphasis mine]:
[The words complained of] were removed as a result of her receiving the writ, going to solicitors, going to counsel, and being told “Get rid of them, they’re defamatory”, and we know that, she said that.
I certainly did not agree that my legal team told me that the words were defamatory – because they most certainly did not say that (because the words were not defamatory), and I certainly did not ever say that they had told me that. The real fact is that the cross-examination went as follows:
Mr Southall: You only eliminated what you were advised were the offensive passages on 23 February 2012 after you had been advised by senior and junior counsel to do so. Is that correct?
Me: Well, I would have done it anyway. If it had been advised to me in August 2011 exactly what was offensive that I hadn’t addressed, I would have dealt with it then.
Mr Southall: How did you determine which were the – to use your words – the offending words? Which were the offending words, in order to download them on 23 February?
Me: They were highlighted.
Mr Southall: You removed the highlighted words, and you identified them as the offending words. Is that so?
Me: That was your claim. The amended claim said “tab this” and, you know, here’s your highlighted words.
Me: [T]he 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. Would you not agree with that?
Me: I disagree with that absolutely. It’s got nothing to do with it.
Mr Southall: So what’s it got to do with, that you were advised after the mediation to take the whole site down, were you?
Me: The legal team and I discussed, could we leave part of it up, could we pull it all down, and I said, “We’ll just pull it all down, end of story”, and I came straight home and I said to the person who was hosting it, “Pull it down.”[6]
As you can see, Southall had made completely inaccurate assertions to the court about this cross-examination.
Southall’s inaccurate claims in relation to his clients’ losses
In further great disregard for the truth, Southall inaccurately claimed that his clients had suffered no losses by the removal of the claims for injurious falsehood and misleading and deceptive conduct [emphasis mine]:
There’s absolutely nothing in the claim relating to the abandoned causes of action which relate to millions of dollars, whether it be $1 million or $20 million, nothing like that[7].
Southall inaccurate, absolutely and unequivocally stated that there had been no claim that related to a loss of even $1m – this was in spite of each and every one of the first 5 iterations of their statement of claim and/or their further and better particulars (each settled by Southall personally) respectively declaring and claiming as absolute and irrefutable fact that the website has caused:
Devaluation of Casacir’s business and goodwill by reason of the adverse publicity created in and by the website publication to the quarry market in Victoria…, causing diminution in value of the Casacir quarry operation and the Casacir quarry land, if placed on the market.[8]
Casacir’s business has become unsalable by reason of the harm caused by the website publications, alternatively saleable on the open market at a nominal value only. … Casacir’s business has become unsalable by reason of the harm caused by the website publications, alternatively at a nominal value only. … Casacir’s quarry land has become unsalable by reason of the harm caused by the website publications, alternatively saleable at a nominal value only.[9]
Bearing in mind that the CASACIR business was a multi-million dollar business (at that time it operated 4 operating quarries, an asphalt plant and 2 concrete plants), and the subject quarry land contained resources worth in the vicinity of $165m in 2011’s dollars, it is clear that Southall inaccurately depicted to Pagone J that I had lied. In addition, Southall tried to obfuscate, minimise and rationalise the facts, and tried to sway Pagone J to believe that Southall had removed the claims for a very small purported loss. If the millions of dollars in actual claimed losses that had been claimed were real, and if they could have proved the claimed losses, there is no way he would have suggested that his clients abandon the claims, and there is no way they would have abandoned them. The reality is that those claims were only used against me to bully and harass me into removing the entirely of my former website (they removed the claims immediately I removed the website).
Southall’s deceptions regarding what happened at the handing down of Pagone J’s judgment
In great disregard for the truth, Southall’s inaccurate claims of confusion over interest. Southall inaccurately claimed before Warren CJ, Tate JA and Ginnane AJA, that at the handing down of Pagone J’s judgment, discussions with Pagone J had been too confusing and that his Honour was unaware that interest was sought:
…not a lot occurred that … to the …issue of interest[10].
A simple reading of the transcript of the handing down of the judgment shows that there was no confusion, especially with Southall taking up 36% of the total discussions [emphasis mine]:
Pagone J: In the substantive matter, the orders that I propose to make, subject to any questions about costs, are that there be an award for damages for [man X] in the amount 10 of $12,000, and for [man Y] in the amount of $8,000. I should indicate, as it may be relevant to the question of costs, that I have made no allowance for costs on the head of aggravated damages, and I publish my reasons. There are, I think, now two matters that I need to deal with. I assume, Mr Southall that you will be seeking costs.
Mr Southall: Yes, Your Honour[11].
Pagone J: What I should do the that you have other than those referable only to the aggravated damages point will be paid by [her] – – –
Mr Southall: Yes.
Pagone J: – – – subject to – unless there is another order hereafter about costs.[12]
Pagone J: All right. The orders that I will make so far as costs are concerned, [the defendant], are that you pay the costs of [man X and man Y], other than those concerning only the aggravated damages, subject to – sorry, not subject to, unless there be some further or other order made in connection with or pursuant to the summons and application dated 17 May 2013 under s.29 of the Civil Procedure Act 2010. That, I think, preserves everybody’s position as best I think I am capable of doing.
Mr Southall: Yes. Your Honour, in respect of the order for costs, does Your Honour bear in mind and you may well, but s.40(2)(a) of the Act provides that “Without limiting sub-s.(1), a court must, unless the interests of justice otherwise require, (a) if defamation proceedings are successfully brought by a plaintiff” – whatever that might mean “and costs in the proceedings are to be awarded to the plaintiff, or to costs of an incidental to the proceedings to be assessed on an indemnity basis if the court is satisfied the defendant unreasonably failed to make a settlement offer or agree to a settlement offer proposed by the plaintiff”. Now, as I read that, I am being premature[13].
A simple reading of the judgment shows that his Honour was fully aware that Southall and his clients were applying for interest [emphasis mine]:
In this proceeding [man X and man Y] seek damages, including aggravated damages, a permanent mandatory injunction, interest and costs[14].
The fact that Pagone J did not award interest was therefore entirely relevant. Their Honours, Warren CJ, Tate JA and Ginnane AJA, were swayed by Southall’s inaccurate submissions and addresses:
No order for the payment of interest was made by the trial judge, despite a claim for interest having been made in the statement of claim[15].
As a result of Southall’s inaccurate claims, their Honours were led astray:
Suffice it to say here that we accept that there was a good deal of miscommunication at the time of the delivery of judgment, and this led to there being no proper opportunity afforded to [man X and man Y] to make a formal application for interest to give effect to the prayer for relief in their further amended statement of claim, if such a formal application is necessary[16].
[Man X and man Y] submit also that the circumstances in which judgment was delivered effectively precluded them from having any opportunity to make an oral application for interest[17].
This resulted in Southall’s inaccurate submissions leading to his clients being granted leave to belatedly apply for interest based on Southall’s inaccurate submissions and addresses, and they were subsequently granted interest by McDonald J:
2. [The defendant] is to pay interest to [man X] in the sum of $8,260.32 and to [man Y] in the sum of $7,158.94.
3. [The defendant] is to pay [man X and man Y’s] costs, including any reserved costs, of: (c) [man X and man Y’s] application for interest on the $140,000 damages awarded by the Court of Appeal
Accordingly, the total interest of $15,446.11 must be allocated as follows: $8,260.32 to [man X] and $7,158.94 to [man Y][19]
On 5 February 2016, the Court delivered judgment (‘the principal judgment’) in respect of:…
(iii) [man X and man Y’s] application for an order for interest at the rate of 3.5% on the damages of $140,000 awarded by the Court of Appeal from the commencement of the proceeding on 7 December 2011 until the date of the Court of Appeal’s judgment on 24 April 2015[20].
The orders of the Court shall be: …
(ii) [The defendant] is to pay interest to [man X] in the sum of $8,260.32 and to [man Y] in the sum of $7,158.94.
(iii) [The defendant] is to pay [man X and man Y’s] costs of: … [their] application for interest on the $140,000 damages awarded by the Court of Appeal[21].
In great disregard for the truth, Southall’s made grossly erroneous claims regarding injunctions
In each and every iteration of man X and man Y’s 7 statements of claim, each being settled by Southall, they stated that they sought [emphasis mine]:
B A permanent mandatory injunction requiring the defendant to remove the published materials from the internet.
C An interlocutory injunction requiring the defendant to remove the published materials from the internet.
In each one of the first 3 iterations of the statement of claim, each being settled by Southall, they stated that they additionally sought [emphasis mine]:
E Alternative to B and C, injunctive relief (including interlocutory injunction relief) pursuant to section 232 of the Australian Consumer Law.
G A permanent mandatory injunction requiring the defendant to remove the published materials from the internet.
H An interlocutory injunction requiring the defendant to remove the published materials from the internet.
J Alternative to G and H, injunctive relief (including interlocutory injunction relief) pursuant to section 232 of the Australian Consumer Law[22].
In their Summons dated 7 December 2011, presumably settled by Southall, they stated that they sought:
B A permanent mandatory injunction requiring the defendant to remove the published materials from the internet.
C An interlocutory injunction requiring the defendant to remove the published materials from the internet.
E Alternative to B and C, injunctive relief (including interlocutory injunction relief) pursuant to section 232 of the Australian Consumer Law.
G A permanent mandatory injunction requiring the defendant to remove the published materials from the internet.
H An interlocutory injunction requiring the defendant to remove the published materials from the internet.
J Alternative to G and H, injunctive relief (including interlocutory injunction relief) pursuant to section 232 of the Australian Consumer Law.
Southall made inaccurate submissions on injunctions that they (1) had no intention of pursuing, and (2) knew could not be obtained. In spite of the Summons and each and every one of the 7 iterations of their statements of claim (all settled by Southall personally) proclaiming that they most certainly sought both permanent mandatory and interlocutory injunctions, Southall knowingly, actively and fraudulently denied having ever sought any such injunctions [emphasis mine]:
[Y]our Honour we would say that it would be a very game senior counsel indeed to advise a client to seek an injunction to restrain this website from continuing. Now, true it is the relief was sought, and on one reading it could be read to include interlocutory injunction, but it also included permanent injunction. The fact is, no injunction was ever sought.[23]
This was in spite of having been consulted as to the injunction proceedings [emphasis mine]:
Drawing and engrossing brief to senior counsel to advise on defamation and injunction proceeding[24]
And Southall settled and re-settled each statement of claim with injunctions claimed[25]. Then he is forced to admit to having sought injunctions, but he still tries to slither away and limit it:
Mr Southall: That’s a permanent injunction.
Me: And an interlocutory one I think. …
His Honour: … However, I do see that you’re quite right, an interlocutory injunction was sought[26].
The injunctions were not pursued and, because Southall wanted to minimise the inclusion, he made the submission that such an inclusion was merely an “ambit claim”:
Not pursued your Honour, but that’s – we lawyers have understandings of prayers for relief. Prayers for relief are what’s called an ambit[27] claim.[28]
In other words, a claim that they had no intention of following through on – the claims were therefore fraudulent claims set to try to intimidate and bully me.
Smith’s affidavit dated 12 June 2015 at paragraph 41 (settled by Southall!) identified that:
[E]ach of the statements of claim included in the prayer for relief claims for interlocutory and mandatory injunctions requiring the defendant to remove the defamatory words from the internet.
Smith knew and identified the reality of the claims for injunctions, yet, as seen above, Southall had tried to worm his way out of it by his knowingly grossly erroneous misrepresentations.
Southall admitted that injunctions could not be obtained in defamation cases and that he knew that fact [emphasis mine]:
If she researched the law, which she could, she would know that the law is almost inescapably against granting relief of an injunction for defamation[29].
… there is of course unswerving authority in the law of defamation and the case that immediately comes to mind if one of what was then the Full Court of this court in GTV9 v. National Mutual that obtaining an injunction in defamation is almost impossible, the court won’t entertain that.[30]
Having already discussed the matter at length, Southall then went on to waste even more time by continuing to raise the subject. This is damning in the light of his declaration that he recognised that the injunctions were extremely unlikely to be successful if pursued:
Mr Southall: I’m handing up two cases. One is the one that I said, I think on the very opening day, GTV v. National Mutual. That was a case to restrain a libel arising out of an apprehended broadcast. In dismissing the appeal, the court held in headnote 1, following Bonnard v Perryman which is the seminal decision: “The correct approach in Victoria to an application to … (reads) … justice, favours the grant of injunction.” Well, one wonders whether those tests any longer apply: “In the case of an application to restrain … (reads) … only where it is very clear that it should be granted.” The relevant passage, your Honour, at page 754, his Honour Ormiston J’s decision at about point 3: “However, the real question on any application such as this … (reads) … particularly where damages are both normal and sufficient remedy.” Then at about the fourth-last line on that page, referring to Stocker v. McElhinney: “This would be in accordance with the general rule that injunctions should be granted only in very clear cases”, and that’s referring to defamation cases. Then at 763, it was the Full Court’s judgment from a judgment on appeal from Ormiston J, 763, line 40: “In our opinion his Honour’s approach to the question whether the court should … (reads) … passages in his reasons for that judgment”, and then his Honour proceeds to quote directly from his Honour’s judgment in relation to Bonnard v. Perryman, those further cases delighted there. On the following page, 764, at about point 4 of the page: “In a case of an application to restrain a libel … (reads) … so-called news media, should suffer restraint of free speech.” Then the more recent and possibly the most powerful authority is an equally well-known better known judgment, it’s the second case I’ve handed up of ABC v. O’Neill, that’s reported 227 CLR 57. In the headnote it was only surprisingly Kirby J and Heydon J dissenting, that the judge and the majority of the Full Court had erred in principle … in [failure] to take proper account … (reads) … only nominal damages might be awarded.” The relevant passages in the judgment are at page 73, paragraph 32 and at paragraph 34: “The primary judge, and the majority of the Full Court erred in principle … (reads) … defamation, only nominal damages might be awarded.” So the High Court allowed appeals in a case where injunctive relief had been granted at first instance and by the Full Court. And so, in those circumstances your Honour we would say that it would be a very game senior counsel indeed to advise a client to seek an injunction to restrain this website from continuing. Now, true it is the relief was sought, and on one reading it could be read to include interlocutory injunction, but it also included permanent injunction. The fact is, no injunction was ever sought and it wasn’t sought for the very good reason of the proposition as stated in O’Neill and in GTV.
His Honour: Except that this is a clear case though, isn’t it?
Mr Southall: What case is a clear case?
His Honour: Somebody getting up and saying somebody perjured themselves. This isn’t a case where there was any allegation of comment. In any case, I understand the submission you make.
Mr Southall: I take on board what you say.
His Honour: In the scheme of things it may not ultimately be a major point. It’s a factor. Everybody says it’s a factor to take into account.[31]
There are a number of issues here, two of which are:
(1) Southall clearly confused himself: either the injunctions were sought (“true it is the relief was sought”) or they were not (“no injunction was ever sought”)!
(2) the reading of the claims is clear – the claims expressly stated in “C” that it sought an “interlocutory injunction” – how can that be interpreted to mean “on one reading it could be read to include interlocutory injunction”?
There was no other way to read it. All this did was prove my point that Southall pleaded their request for an injunction when he knew, according to Southall himself, that they could not do so. So, not only was it a waste of the court’s and my time, but it was also fraudulent to have sought injunctions in each and every one of the 7 iterations of the statements of claim and their Summons when he knew they were not going to pursue them. Further, Southall did not seem to know what they had pleaded and what they had not – in documents he personally settled.
Southall told his Honour that I had kept bringing up the matter of injunctions (“the fourth time that I’ve counted”). The fact is that the transcripts reveal that I had only mentioned them once prior to that point.
Of course, Southall could have sought and theoretically possibly obtained injunctions in relation to the claims he instigated in relation to injurious falsehood – but he not only did not even attempt to do so in spite of maintaining those claims against me for just days short of a year, but he advised the removal of the very claims that could have granted that reprieve. However, he settled a letter in conjunction with Kaye that specifically told me and the court that they would not be seeking injunctions at the directions hearing on 24 February 2012 (when the claims for injurious falsehood were still active). This letter was followed by 4 further iterations of their statement of claim settled by Southall, and in each iteration they continued to seek injunctions.
I was an unrepresented litigant and I had had no idea that Southall would approve and settle the many iterations of documents that he knew would fraudulently seek something that he clearly knew they could not obtain. Each one of the 7 iterations of the statement of claim sought an interlocutory and a permanent injunction, so to say that they haven’t been sought, especially when His Honour had agreed that they had been sought, were not only fraudulent submissions but was effectively calling into dispute his Honour’s integrity.
In fact, when making his Judgment, Pagone J still recognised that they were seeking an injunction:
In this proceeding [man X and man Y] seek … a permanent mandatory injunction[32]
Prayers for relief
In great disregard for the truth, Southall gave inconsistent and contrary claims regarding “prayers for relief”, as it best suited him at the time. He simply can’t make up his mind about “prayers for relief” – he changes his attitude as to how it works best for his case, and does so with blatant disregard to honesty before the court.
As we have seen above, the claims for injunctions were included in their “prayers for relief” and in their summons, but were not pursued and, because Southall wanted to minimise the inclusion, he made the submission that such an inclusion was merely an “ambit claim”:
Not pursued your Honour, but that’s – we lawyers have understandings of prayers for relief. Prayers for relief are what’s called an ambit[33] claim.[34]
In other words, the injunctions were claims that they had no intention of following through and they were therefore fraudulent claims set to intimidate and bully me.
In relation to the interest claimed as part of the very same prayers for relief (and therefore part of the very same ambit claim), because he wanted the interest for his clients, he submitted to their Honours, including the Chief Justice, that [emphasis mine]:
…we still remain with our submission that it’s sufficient to have pleaded it the prayer for relief in the writ and its subsequent emendations.[35]
From this we see that Southall chooses whichever way he wants it to go – it is a serious claim if he wants to proceed with it, but it is a meaningless claim if these of it for the purposes of bullying and intimidation is no longer necessary, and he wants to get out of having to account for it – and both the court and I were supposed to just “know” which it is at any given point in time. I contend that this is further inaccurate conduct, and knowingly so. Thus we have seen that Southall’s submissions caused uncertainty, disorder and confusion, especially given his inaccurate clams that injunctions had never been sought.
Southall changed the claims for aggravated damages
I was caught by surprise by Southall’s inaccurate and great disregard for the truth when he changed the claims for aggravated damages made in the trial compared his subsequent claims in the appeal. There were issues that were dropped (thereby proving that they were grossly erroneous in the case before Pagone J), and entirely new ones added (without requesting or obtaining the court’s or my permission). As a result, I was entirely caught by surprise and unprepared for this. The details of the changes in pleadings are as follows.
The notice of appeal settled by Southall stated that:
5(a) the … remarks were part of an overall campaign brought by the [defendant] that was calculated to “make things as difficult as possible” for [man X and man Y];
5(b) the … remarks were entirely false and had no foundation;
5(c) the … remarks were published on a publicly available internet site for between five and seven months;
5(d) [The defendant] continued to add .. remarks after [man X and man Y’s] solicitor had written to her complaining about [purportedly] defamatory aspects of the website;
5(e) [The defendant] had continued to attempt to justify the … remarks throughout the hearing;
5(f) [The defendant] attempted during the trial to construe words plainly intended to allege that [man X] had deliberately or intentionally lied under oath or intentionally lied under oath as meaning something otherwise and failed to apologise until the conclusion of her closing submissions.
In relation to 5(a), Southall removed the previously pleaded overriding purpose that had been stated in their statements of claim: “…her motive to cause ongoing injury to the Casacir quarry operation, in order to pressure Casacir to acquire the Shapher land from Shapher, alternatively [the defendant], at an inflated price. [The defendant’s] intention to pressure Casacir to acquire the Shapher land at an inflated price is evidenced by verbal and written communications between her and representatives of Casacir between approximately 2006 and 2010”. Either way the claim was inaccurate, but by removing those words he completely changed the claim (proving that the motives he had attributed to me in trial were no longer claimed against me) and I was so surprised that I was not able to properly prepare for the changed claims.
In relation to 5(b), this was a totally inaccurate claim (and knowingly so) – proved by the photographs on the website.
In relation to 5(c), Southall approved of Kaye deliberately delaying the particularisation of the words they objected to (other than inaccurate claims and denials). The words were not identified until 20 February 2012 – and the words were removed immediately they were particularised. In addition, everything I wrote was true – and Southall knew it because he had copies of the relevant photos and website pages in his care and custody.
In relation to 5(d), it is the letter of 19 August 2011 to which they refer – it should be no surprise as to why I disregarded all the inaccurate content within the letter, yet Southall used it against me repeatedly, including in his notice of appeal. The letter is further addressed in the relevant web page.
In relation to 5(e), (1) the words were true so to justify them is acceptable, and (2) they had not been found to be defamatory at that time, and were only found to be defamatory due to the fraudulent conduct of Southall and others.
In relation to 5(f), there are three issues here:
- Man X did lie under oath – he did so at VCAT, and he continued to do so at court;
- man Y approved of man X lying under oath at VCAT, and he personally lied under oath at court;
- I had not tried to imply that lying under oath is anything but lying under oath – it is Southall who was making light of it and making his clients’, and his own, lies to be anything but lies[36];
- The issue of my apology is detailed in the relevant web page – but to reiterate – the apology for any hurt caused was sincere and given on the very first day of my submissions.
Not one of those claims was as pleaded in their documents before Pagone J, and those changes gave a further inaccurate footing for that appeal. I was surprised and unprepared for them, especially when I had been provided with a court appointed barrister who refused to take instructions and refused to address issues that were not strictly points of law, regardless of instructions, and regardless of Southall not restraining himself to points of law.
[1] There was a directions hearing which solely dealt with me becoming a self-represented litigant and the discharge and release of my then legal team, and the issue of clause 9B was not brought up by Southall at that time, nor were there any consent orders made or handed up
[2] I contend that the real purpose of the iteration 6 of the statement of claim dated 21 March (and the subsequent 7th iteration dated 2 April 2013), was to bury the injurious falsehood and misleading and deceptive conduct claims from sight so that (1) the need for explanations would also be removed, and (2) the court would then be unaware of the fact that some of the claims had been dragged back in without having been overtly pled.
[3] It must be noted that Peter Barro was one of the witnesses who had a conference and email communications with Southall and either refused to give evidence, or whose evidence was such that it would not have helped Southall’s clients or may have even hurt their case – either way, he did not give testimony and was not a witness.
[4] Bill of costs served on me on 5 April 2017, item 319: “Clerical attendance on senior counsel discussing … [man X, man Y and CASACIR’s] affidavit to be filed in reply”.
[5] Affidavit dated 12 June 2015, at paragraph 50.
[6] T403:7-24
[7] This was a fraudulent claim given that CASACIR is a multi-million dollar company and man Y admitted that they had paid in excess of a million dollars for their property – both the company and property were claimed as being virtually un-saleable because of the website – those are multi-million dollar losses.
[8] 24(v)/31(v)
[9] “Under paragraph [24(v)/31(v)] thereof” at (a), (b)/(c), (d)/(e)
[10] T108:26-29
[11] T598:7-17
[12] T602:27–T603:3
[13] T606:7-28
[14] Reason [1] of the judgment
[15] Reason [54] of the judgment
[16] Reason [57] of the judgment
[17] Reason [57] of the judgment
[18] Orders
[19] Judgment, Reasons at [75]
[20] Judgment, Reasons a [1]
[21] Judgment, Reasons a [12]
[22] The iterations dated 20 March and 2 April 2013.
[23] T574:14-20.
[24] Bill of costs served on Giles on 8 March 2017, item 7
[25] Ibid, items 27, 42, 44, 88, 118, 411, 460
[26] T460:17-23.
[27] The internet states that an “ambit claim” is one which is an extravagant initial demand made in the expectation of an eventual counter-offer or compromise; made in a situation where they knew that they will subsequently have to compromise; a claim considered to be exaggerated.
[28] T460:24-26.
[29] T459:31–T460:3.
[30] T286:6-11.
[31] T572:26–T575:2
[32] Judgment, Reasons at [1]
[33] The internet states that an “ambit claim” is one which is an extravagant initial demand made in the expectation of an eventual counter-offer or compromise; made in a situation where the they know that they will subsequently have to compromise; a claim considered to be exaggerated.
[34] T460:24-26.
[35] T108:30–T109:2.
[36] He told their Honours of the 2016 Court of Appeal that such were trifling or small matters that their Honours should not concern themselves with.