In great disregard for the truth, the following is evidence about Southall’s grossly erroneous claims as to the amount claimed in the VCAT hearing.
In order to try to further deceive the court over my offers dated 14 February 2011 (Sadler’s[1] email to Peake), 1 March 2011 (Sadler’s further email to Peake), and 16 March 2011 (my letter to KSA re-iterating Sadler’s offer), Southall grossly erroneous claimed that I knew in both February and March 2011 that the costs awarded against me in the VCAT enforcement hearing were known to be in the sum of $82,000:
A very significant amount of legal costs, I’m told, I’ve received a note, $82,000.
Southall was knowingly grossly and erroneously misconstruing amounts, dates and times because [emphasis mine]:
Me: I was referring to the offers. Now, whilst it wasn’t “$100,000” exactly – and I did mention yesterday that there were the two extra clauses. The fact that there were costs awarded against us, we had no idea what those costs were going to be, so we thought ballpark $50,000. So when I said $100,000, that was $50,000 that they had talked about plus the costs, which we estimated at about $50,000, so I ball parked it as $100,000.
Southall: [The defendant] just said “We didn’t know what the quantum of costs“, I think she said, “that had been ordered”
His Honour: That was at the mediation, and after the hearing you’re saying that this represents an increase in what had been put to the mediation, because there was then extant an order for costs in the order of about $70,000.
Southall: No, no, that’s not right. There was no extant order for costs, there was an extant judgment with costs reserved.
His Honour: Which you expect that you would have known what your costs were – – –
Southall: I’m not saying that. My clients might have expected the costs to be $150,000 for all they knew.
His Honour: You just said to me that the costs were in fact about $70,000.
Southall: The costs as they were subsequently fixed – arrived at after the VCAT proceeding, but since then there’s been another $40,000 or $50,000 in costs spent on the Supreme Court appeal, which [the defendant] also lost, so we’re talking about a sum of money exceeding six figures.
His Honour: But as at March 2011 what was purported to be accepted or put back to your client, had it reached your client’s attention was, we accept what you’ve suggested, what we want to do is include an order that each party pay their own costs; where each at that point, had you thought about it, you would have worked out would have been about $70,000. Your client seems to say, well, if you come back with an offer of the average of two plus $100,000 we probably would have accepted it.
Southall admits that his own clients did not know the total of the costs at the time of the offers, yet I was supposed to have known. Further, in order to try to add to it, Southall grossly and erroneously mentions the additional costs of the appeal that were not even on the horizon until 2012 (6 months after the website commenced and a year after the correspondence).
Southall’s conduct aggravated the situation by his continued and grossly erroneous claims. This is proved by the fact that the first time I knew of a claim for costs was on 11 May 2011[2] when they served me with a bill in the sum of $68,155.78 – and it is important to note that at that point no order had been handed down as any granting of costs because no hearing had been held – in fact, this was the date that they applied to VCAT for costs. In addition, 11 May 2011 was 4 months after Sadler’s email and 3 months after my letter. Further, the bill of costs claimed on 11 May 2011, and in the final bill of costs dated 28 February 2012 (over a year after Sadler’s email and 11 months after my letter), both included grossly erroneous charges for many items that were totally unrelated to the enforcement proceedings[3] (Southall’s clients later increased their bill to $82,357.66 and this amount was subsequently reduced to $57,961.30 at taxation). Because I was unprepared for Southall’s grossly erroneous submissions on this totally irrelevant issue, I did not have the figures and/or dates to hand at the time and was therefore entirely caught by surprise (with neither the issues nor the figures having been previously pleaded in any manner, and given the fact that the figures had nothing at all to do with the defamation case). I have since hunted through correspondence and discovered the bills evidencing the dates and amounts. Southall’s grossly erroneous submissions aggravated the situation by swaying his Honour and forming part of Pagone J’s judgment[4].
[1] Dr Robert Sadler was my and my related parties’ then barrister
[2] coincidently one month prior to my website going on line.
[3] But were, inter alia, related to the water claim where each side undertook to pay its own costs, and to costs that they had accumulated in preparing documents and reports solely for compliance with their planning permit.
[4] Judgment Reasons at [52]-[53]