I had commenced an application under s29 of the Civil Procedure Act 2010 (“my s29 application”), due to Southall’s (and others’) breaches of their overarching obligations (more on that sage on the relevant web page).
I observed that Southall, in great disregard for the truth, did mislead his Honour as to claims about my s29 application. He did so by declaring as fact that [emphasis mine]:
Under s.29 of the Civil Procedure Act, all of which relates to overarching obligations – all of which the application relates to overarching obligation, no other impropriety, and ultimately, if you like, becomes a question of [the defendant] seeking to argue the question of costs on that basis.
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.
Southall claimed that the s29 application related to “no other impropriety”, and only to costs, which was totally and knowingly untrue, and I most ardently gainsay him on that false claim.
Following Southall having mislead his Honour by assuring him that the application was only about costs and that there was no claim of any impropriety, Southall then swung the situation around as best suited him, at a time that best suited him, when he contradicted himself by admitting before Pagone J (as well as later before Daly AsJ, Santamaria JA, Tate JA, Ginnane AJA, and even Warren CJ) that his conduct as well as that of others was at stake, and thereby admitting that he knew that what he had submitted as fact to Pagone J about the application being only in relation to costs was fraudulent and not the case at all [emphasis mine]:
Your Honour would not – may not know and would not know that indirectly at least, whilst it is directed against the defendants – the plaintiffs, my clients – indirectly, it seeks to impugn conduct of myself and to a lesser extent my junior.
… my learned junior and I are here courtesy of the ethics committee, because if I can take you to paragraph 7 of that application at the bottom, there’s a number of allegations relating to myself. The last paragraph, “In fact, Mr Southall QC is himself bound by overarching obligations and the plaintiffs’ supporting legal team, Ms Kaye, barrister, and Ken Smith & Associates, are also bound by overarching obligations with Mr Smith of Ken Smith having signed a proper basis of certification.” The next page, “The defendant asked for orders under section 29 in her favour on the grounds that the plaintiffs and their legal representatives have contravened their overarching obligations as follows,” and bearing in mind, Your Honour, the summons is directed only at the plaintiffs but in effect it brings in the conduct of myself and my junior.
There are a number of other allegations against myself and in respect of my junior.
In fact, the reality is that, given the position of myself and junior counsel, junior counsel particularly for different reasons, we can’t keep coming back.
At 599 of VG5 I refer to the application by [the defendant], not only against my clients but against our instructing solicitor and also against myself and my junior Ms Kaye, under s.29 of the Civil Procedure Act, alleging breach of overarching obligations.
… on one view my conduct is very much under scrutiny there
Your Honours will have read the transcript at 599, it was a matter of some embarrassment as to what it was alleging inter alia against my junior and myself. Not my present junior, it was Ms [Kaye] who counselled at the time…
It should be noted that, in spite of knowing and acknowledging that his conduct had been called into question, Southall continued with the same fraudulent conduct throughout the cases, proving that it is endemic to his character. Because he has been significantly rewarded for it to date[1], something of momentous magnitude will have to take place for him to even consider changing his conduct.
It appears that Southall made submissions to the Ethics Board[2] about my accusations – it would be most interesting to compare reality with what he claimed in those submissions.
[1] Many hundreds of thousands of dollars in fees.
[2] On 22 and 29 May 2013, according to the bill of costs served on me on 5 April 2017