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.
In great disregard for the truth, in addition to the fundamental and underlying issue of wrongful intent on the scope of the case, Southall blatantly disregarded Pagone J’s directions and instructions regarding background. In spite of his Honour again and again making it absolutely clear Southall was not to do so, instead of following his Honour’s instructions and directions, Southall gave him the fraudulent impression that he was complying. However, he continued to provide fraudulent and/or totally unnecessary information, and continued the intrusion of admitted irrelevant background not pleaded, and the intrusion of CASACIR, the Stabil-Lime Group and others who were not parties to the action.
In addition to the fundamental and underlying issue of fraudulent and wrongful intent on the scope of the case[1], Southall repeatedly went beyond the pleadings as articulated in the statement of claim ventilated at court, in spite of his Honour again and again making it absolutely clear he was not to do so [emphasis mine]:
I will certainly try to make sure that Mr Southall confines himself as strictly to the pleadings and strictly to the rules of evidence as they are now in force.
So anything they give evidence about will be restricted and limited to what you find in the statement of claim.
If it’s not in the pleading, … I will certainly not allow it to – I think Mr Southall is getting the very clear message that if it’s not in the pleading, I’m not going to hear it at all.
I am going to keep insisting that you keep within the pleadings, do avoid the background. I’m happy to lend you a red pen if you like. … It won’t take me very long to allow [the defendant] to go into other matters if you don’t confine yourself to the pleadings.
Yet Southall repeatedly went well beyond the pleadings and fraudulently changed his case considerably before Pagone J. Southall gave the following fraudulent undertakings before his Honour:
We are not changing the case of defamation as previously put.
However, that did not stop Southall ignoring his Honour’s previously noted stipulations, and his own undertakings. Southall himself noted that his addresses went beyond:
…but including of course … which weren’t included in the writ…
And Southall was still not finished ignoring his Honour’s stipulations. For example, the following interchange between his Honour and Southall took place, further showing that Southall liked to catch people by surprise by his examinations and by not having his clients’ claims clearly identified:
Mr Southall: Your Honour, the relevance of reference to these is to establish a sequence of events that I’ll be addressing.
His Honour: Where have you put this in your pleading?
Mr Southall: Your Honour, it’s part of – it’s ultimately part of our claim for aggravated damages.
His Honour: If it’s part of your claim for aggravated damages it would have been very helpful if this had all been identified clearly and for [the defendant] to be able to have tested some people on this material in advance. Where is it in your pleading?
Mr Southall: It’s not specifically identified in the pleading, your Honour.
His Honour: So you have not given this as particulars upon which you are going to be making the claim for aggravated damages?
Mr Southall: The particulars relate in particular to the correspondence that I’d been cross-examining on for the last hour or so – that is particularised.
His Honour: I’m taking [the defendant] to be making an objection, and I am upholding the objection.
Although catching me (and the court) by surprise, clearly Southall felt that he had the right to claim this matter, and other matters, although not pleaded. Further, in spite of his Honour repeatedly calling Southall to account, Southall still continued to go beyond the pleadings and knowingly wasted time with the un-pleaded intrusion of the Marshalls & Dent (Duvoisin) letter and the VCAT issues (neither of which was even causally related to the claim of defamation) [emphasis mine]:
Mr Southall: It of course is not a part that we specifically complain of in the pleadings, but it’s a part that Mrs Duvoisin has obviously had attention to under the heading “Quality Roads Quarry Fight”.
His Honour: [O]ne of the difficulties that I have is linking some of these consequences to a relevant cause. The Duvoisin letter is an example – the Marshalls & Dent letter is an example, because on the face of the letter such damage as is evidenced by the letter is not causally related to the defamation. It may be related to the website, but not to the defamation.
His Honour: So what I’m saying to you is, each time you point to other consequences, like the Marshalls & Dent thing, which is not referable to the defamation.
Mr Southall: Yes, or the tribunal proceedings.
His Honour: Or the tribunal proceeding, of which there is great deal and you wanted to put in even more – it does tend to say, well, I need to make some either discounting and I would find it helpful for – I’m looking as much as I can to you to assist me in satisfying the statutory obligation that I am sure that there is an appropriate and rational relationship between the harm sustained and the amount of damages.
Mr Southall: Yes, your Honour.
His Honour: I think we are straying bit, aren’t we, Mr Southall?
Mr Southall: Yes.
His Honour: How is this really relevant?
Mr Southall: No, I won’t pursue that, Your Honour.
CASACIR had purportedly been removed as the third plaintiff. If that was so, it was astonishing that Southall fraudulently went into such unnecessary lengths to bring CASACIR into the trial in excess of 100 times. CASACIR was never, and could never be, a party to defamation – but that proved no barrier to Southall. In addition, Southall repeatedly intruded the Stabil-Lime Group and its subsidiaries into the trial – neither the Stabil-Lime Group nor any of its subsidiaries had ever been a party to any part of the case and none of them could be a party to defamation – but this did not stop Southall. He also repeatedly intruded other people who had nothing to do with the claims and who had never been a party to the claims. In addition, these intrusions misled Pagone J in that he was overtaken by the repetitiveness of them and thereby included them in his judgment, thus influencing the awards granted to the plaintiffs[2].
A copy of some of the relevant information relating the further continued and unwarranted insertions of the irrelevant background information, including CASACIR, other companies and unrelated people in breach of their overarching obligations, follows:
Remembering that this was a specific defamation trial, Southall explicitly made a reference to the website in relation to CASACIR, as follows:
It, in fact, contained defamatory publications in respect of Casacir also. … Yes, and Casacir was a plaintiff and Casacir was a plaintiff because of the M and D conduct and the injurious falsehood allegations.
CASACIR could never be a plaintiff to defamation, yet Southall is clearly extending the defamation case by intruding CASACIR into it in spite of admitting that:
It was decided for the reasons I mentioned to you earlier that we would no longer proceed with that and we had the leave of the court but, therefore, Casacir had to fall away because section 9, I think it’s the 2005 defamation Act, says a company of more than 10 employees cannot bring an action or maintain an action for defamation and Casacir does have that with all its quarry workers.
Casacir has approximately 40 employees at the three quarries.
The second plaintiff testified that the number of Stabil-Lime Group employees was:
Between 200 and 250.
Remembering also that Southall has explicitly said “a company of more than 10 employees cannot bring an action or maintain an action for defamation”, it is quite extraordinary that Southall went into great lengths to bring in both CASACIR and the Stabil-Lime Group. Neither CASACIR nor the Stabil-Lime Group could be a party to defamation – this did not stop Southall from freely inserting them into the trial. One small example is as follows:
The first plaintiff, … and the second plaintiff, … are not only friends and colleagues from the Gippsland region, but are both directors of a company called Casacir Pty Ltd, which Your Honour may have seen referred to in various forms in the documents filed with the court. They jointly own and operate that company which is, primarily, Your Honour, a quarrying company and it’s a substantial quarrying company, it has three quarries. It has a basalt quarry at Mount Speed near Trafalgar in the State of Victoria; it has a granite quarry at Bairnsdale further east in Victoria; and what I will call the subject quarry because it’s the quarry that adjoins the land owned by the self managed superannuation fund controlled by [the defendant] and her husband John at Neerim North, that is a hard basalt quarry. However, in addition Casacir, ergo [the plaintiffs], operates other businesses which have a general combined synergy, that is to say there are two concrete plants and they are located at Trafalgar and at Paynesville down on the Gippsland Lakes respectively and an asphalt plant at Bairnsdale. That’s also part of Casacir’s overall business operations. The first plaintiff, … is, if you like, the quarry man. He’s been involved in quarries all his life and, indeed, his father certainly was also in Gippsland. I should add here that both [the plaintiffs’] families have been long ensconced in the Gippsland region. They go back a number of generations and it’s our case that they are well reputed and well regarded both on a personal level and in a business context, always having been for three generations at least been located in either the central or west Gippsland area, that is to say that part of Gippsland closer to Melbourne, but throughout Gippsland as a whole. … I’ve referred to [the first plaintiff] being the so-called – the quarry specialist. [the second plaintiff] is a road construction specialist. He has a number of groups of companies that are involved in road construction under the umbrella generally of what’s called the Stabilime group which operates a number of subsidiary road construction companies and much of their work is under contract with either called VicRoads or Roads Corporation or whatever its statutory name is from time to time. As I found out in a number of compensation cases, I’ve done over the years, it changes according to what statute’s brought in to govern its operation. At all events, much of the work of the Stabilime group, of which [the second plaintiff] is the guiding light, is done with VicRoads under contract and I think you can safely say that many of the roads you drive across in Gippsland have been constructed either by or through the subsidiaries of that group of companies.
I have observed that Southall continued to waste time and money by bringing in further background information, and information about CASACIR and the Stabil-Lime Group, as follows:
[The first plaintiff], who will give evidence of his involvement in the company Casacir and his involvement with … the second plaintiff, and the fact that they have operated consecutively and at the present time together three quarries, consecutively since the late 1990s but now altogether three quarries, that Casacir has approximately 40 employees at the three quarries and that [the plaintiffs] and each of them own an equal share in the Casacir quarry business.
I witnessed Southall continuing to go back into background again and again, forcing his Honour to have this following interaction with him, giving very clear instructions that background was not to be presented:
His Honour: Where does any of this go to?
Mr Southall: That’s background.
His honour: Let’s not have any witnesses give is background. Background is going to create a problem.
Mr Southall: I’ve already given background, you are right.
However, continuing to ignore his Honour’s very clear instructions, Southall then went on:
He will give evidence that he’s a third generation of the [first plaintiff’s] family to grow up in the Gippsland area where he was born and raised. He will give evidence of his strong relationship to the Gippsland area, that his grandfather was a well-known person in that area and he thereby, himself and his father, acquired reputations in the district both in the Morwell area and his place of birth, Yallourn, that they were involved in family businesses from a very early age and he, in fact, starting in the family earthmoving business from about 13 and attended Glen Ormiston.
[T]he second plaintiff, will give evidence that he grew up on a dairy farm south of Traralgon, that he set up a road stabilising company in 1976 and since that time has been involved heavily in road construction, including in that of course is the winning of rock base for the purpose of making roads, that he met – through that common activity, if you like, he came in contact with [the first plaintiff] and they came to a very amicable arrangement to create Casacir, the company which is or was the subject of these proceedings. He will say it runs three operational quarries at Mount Speed, Bairnsdale, that’s a granite – sorry, Mount Speed at Trafalgar, Bairnsdale and the subject quarry at Neerim North. He will say that Casacir also operates a quarry at Jindivick which is a town north of Drouin and at that place a weigh station for trucks is in operation rather than an operating quarry and it also operates two concrete plants at Trafalgar and Paynesville. He will say that he’s also managing director of the Stabilime group of companies which consists of some seven corporate entities including a firm called Quality Roads Pty Ltd. He’s never been the subject of any criminal prosecutions or in any trouble with the criminal law in any way, shape or form and he, through his involvement and that of his family in the Traralgon district has a strong reputation. He believes in the community. His group of companies, quite apart from Casacir, Your Honour, employ I think over 100 people – 200 people and he will give evidence as to the degree of gossip and the amount of gossip and distribution and, if you like, the grapevine effect that has occurred as a consequence of these downloads being read by others. His first contact with [the defendant] is that after purchasing the quarry land at Neerim North – – –
His Honour was forced to come back with:
We are not going back into background, are we?
Southall even admitted that:
So that’s the background to where we find ourselves but none of that, I readily concede, is relevant either technically or generally to the defamation proceeding other than by way of background.
Even such an admission did not stop him from continuing to intrude it into the trial and appeal.
Southall remained unable to obey his Honour’s clear and repeated instructions and could not stay out of background information and information about both CASACIR and the Stabil-Lime Group. and went into it again and again. In fact, it is critically important to note that Southall submitted to the Court and his Honour, as unequivocal fact, that the first plaintiff’s evidence and testimony, during his examination by Southall, was indeed background [emphasis mine]:
…he was channelling his personal feelings or his personal perceptions of his own family background, which he gave evidence of his strong family background…
His Honour was quite correct in that background would cause a problem. Although the background information was not pleaded in any of the seven iterations of their statement of claim, in addition to using it throughout the trial, Southall subsequently used it in their appeal, specifically in claiming that his Honour failed to give credit or give benefit to them in relation to the very information that had been given simply as unrelated and irrelevant background[3].
Southall submitted to the Court that Ms Bignell would testify that [emphasis mine]:
She says she’s aware that [the plaintiffs] are businessmen well-known within the local community, although the department and [the plaintiffs] do not always see eye to eye on quarry operations and environmental aspects and the like pertaining to quarry operations in the form of conditions, as people she will say they both have good reputations with the department and with her particularly. … She said what she obtained through reading the website has not affected her view of [the plaintiffs] because she already regarded them as people of good reputation.
However, when asked:
Are you familiar or are you aware of what their reputation generally in the industry and the area is?
Ms Bignell did not give such glowing remarks, instead testifying that:
I have no concerns as far as their standing in business, if that’s what you are asking. We have no concerns other than normal regulatory issues across any of the other sites managed by Casacir, so, no, no real concerns, no. They are known as business men in the area, neither one way or the other strong opinion.
Clearly Southall was willing distort projections of testimony and to lead his Honour astray then by his false opening addresses. Southall claimed that I should have brought in a number of witnesses, and tried to use the fact that I didn’t do so should have been used against me:
Mr Southall: Are Andrew and Karen fox still there?
Me: No, they’re not.
Mr Southall: Have you maintained contact with them?
Me: No, I haven’t.
Mr Southall: So David and Sally Thomas are no longer there?
Me: That’s correct.
Mr Southall: You haven’t maintained contact with him?
Me: Very infrequent.
Mr Southall: Are they aware of this proceeding?
Me: Yes, they are.
Mr Southall: Did you approach them to support you in your evidence in this proceeding?
Me: No.
Mr Southall: Did you approach Andrew and Karen Fox?
Me: No. Do you know the farmer who was identified in evidence by the first plaintiff, … a farmer Lockett(?)?
Me: Yes.
Mr Southall: Is he still there?
Me: Yes, as far as I know.
Mr Southall: Do you get on well with him?
Me: Not particularly. We’ve had some business dealings with him that haven’t been very good.
Mr Southall: You didn’t approach him to assist you I this case to give evidence?
Me: The reason – no, but the reason why – – –
Mr Southall: No, that’s all. I’ll let you explain that later on. What about a farmer by the name of Brown, Mr Brown?
Me: Don’t know Brown.
Mr Southall: What about Mr Ken Fraser who was also, I notice, a party in some of the VCAT proceedings?
Me: Yes, I know Ken.
Mr Southall: Does he still live there?
Me: Yes, as far as I know, yes.
Mr Southall: He was aware of your concerns because you were at VCAT on a number of occasions with Mr Southall: Mr Fraser, certainly early on where these concerns were all aired before- – -?
Me: He was only involved in the review hearing in 2008.
Mr Southall: But that was a long hearing involving a lot of evidence wasn’t it?
Me: Yes, it was.
Mr Southall: Have you approached Mr Fraser to come along and support what you’re saying about the impacts of this quarry on you and him?
Me: No, because none of these people have anything to do with this defamation case.
Mr Southall: No, but you’ve made it into a broader case than that, have you, by this morning and in your evidence and in your cross-examination expressing your concerns about dust and noise, vibration and various other matters that you say relate to the quarry – amenity concerns relating to the quarry?
Me: You gave background, so I gave background.
Mr Southall: Thank you for that. So you didn’t think it relevant to call Mr Fraser about those matters?
Me: No.
Mr Southall: He would have come along and given evidence, would he, had you called him?
Me: Probably, if he was able to.
…
Mr Southall: [Your husband] works in the city, does he not, as a consultant?
Me: On occasion. He’s not at the moment.
Mr Southall: He hasn’t been at court, has he?
Me: No.
Mr Southall: He could have given evidence for you both on that issue in particular and on the other issues that you have given evidence of to which he would have had knowledge, been here to support you?
Me: He could have, but he went through a very nasty divorce with his first wife, and even the thought of coming to court is extremely stressful to him.
Mr Southall: I see. So you asked him to give evidence to support your account in this defamation proceeding, but- – -?
Me: We discussed it.
Mr Southall: You discussed it?
Me: Yes.
Mr Southall: But he declined to support you. Is that correct?
Me: No, I suggested that he didn’t, for his welfare.
Mr Southall: Why did you suggest that?
Me: For his own welfare.
The fact is that there were no witnesses that could have been relevant in relation to the plaintiffs’ pleadings. The pleadings ventilated were only in relation to whether or not I had defamed the plaintiffs (which I had not given that the facts were true but were not allowed to be aired before the court). In fact, Southall had refused to allow me to amend my defence to that of truth and justification. Further:
- Andrew and Karen Fox had moved from the area just after the plaintiffs bought their land for a quarry, and before council made any determinations as to grant or otherwise of a permit, so for Southall to have claimed that the Fox’s participation was relevant was ludicrous. In fact, the Foxes had changed their attitude from one of absolute disgust at the thought of the quarry (the reason they sold) to one of absolute support for the plaintiffs – one has to wonder why). The Foxes tried to stop us telling their potential purchasers that there was a proposed quarry and matters became very acrimonious between us given that any prospective purchaser had the right to know, and in fact, the Foxes were legally bound to tell them.
- David and Sally Thomas had also moved from the area, but just after the plaintiffs bought the land for a quarry, and before council made any determinations as to grant or otherwise of a permit, so for Southall to have claimed that the Thomas’ participation was relevant was ludicrous.
- Gordon Lockett, while still being a farmer in the area, had sold a part of his land to the plaintiffs for a quarry (while falsely telling his neighbours that there would never be a quarry there), has (I have been led to believe) free leasing of some of the plaintiffs’ land and, I believe, receives royalties. So to have asked him to support my defence would have been ludicrous.
- Mr Brown was not, I understand, a farmer in the area. He ran one of the local timber mills and he also sold a part of his land to the plaintiffs and, I believe, also gets royalties. So to have asked him to support my defence would also have been ludicrous.
- Ken Frazer, while still living in the area, nonetheless, lived some 6 km away and was not privy to what was happening at the site.
Not one of those people was relevant to the issue of defamation (the purported sole action being taken by the plaintiffs). Further, to have Southall claim that these were people who could have been witnesses and who could have been bought in to agree that the plaintiffs “ran dodgy businesses and don’t deal fairly with the public” (his quote) is ridiculous. Even for Southall to claim that my husband could have been of assistance is ludicrous based on the fact that it was supposed to be a defamation case and my husband had nothing to do with the website. Further, Southall and the plaintiffs actively denied me the very means my which the witness of those people could have been relevant: i.e. an amended defence on truth and justification.
I pointed out to Southall that
… this is a case against me, it’s not against anybody else.
Southall’s response was:
Yes, don’t worry about that.
It appears that Southall is very willing to throw around accusations and innuendos, but when cornered by fact, had to change tracks in his cross-examination because he did not want me to say more on that issue. But, in spite of knowing that the case was about me and only me, and that I was the only relevant witness from my side, Southall continued to try to use my lack of other witnesses against me:
I raise this issue which needs to be raised: I put it to [the defendant] yesterday in evidence, she could have called her husband, she gave an excuse for that as to his sensitive perhaps temperamental state after personal events. There are others that she could have called, it’s on transcript. Mr Fraser is one who is a fellow traveller in some of the early VCAT proceedings, there were some other nearby neighbours that she could have called. She has called absolutely no-one to come along and say, look, forget what you hear about what’s said about these two fellows, they run dodgy businesses, they don’t deal fairly with the public. [4]
I have observed that Southall (1) repeatedly wasted the court’s and my time, (2) extended the issues instead of narrowing or seeking to resolve them in breach of the CPA and (3) ignored his Honour’s clear instructions, showing his contempt of court.
[1] Inter alia, it has been clearly identified that Southall grossly and erroneously made the removal of the entire website his core intention, and then moved his intent to the accessing of my assets once the website had been removed
[2] Judgment, Reasons at [2],
[3] For example, the plaintiffs’ Notice of Appeal at [1(a), 1(b), 1(c), 1(h),]
[4] There are many aspects where the plaintiffs have not dealt fairly with the public – this is especially true with regard to myself (and my related parties).