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.
Using much in the way of grossly erroneous aspersions, Southall knowingly, deliberately and personally embarrassed, vilified, harassed, insulted, and injured my reputation by publicly defaming me by repeatedly, and without any valid cause or reason, inter alia, using particularly hostile and venomous accusations, grossly and erroneously implying that I had tried to blackmail his clients (this from a man who used what I perceive is threats and intimidation in the documents he settled, that I had verbally and in written form, threatened his clients (this from a man who I perceived used intimidation and bullying against me), and that I was not a person who was to be trusted (this from a man who misled and deceived the court repeatedly).
Southall, as the person settling the documents, had the clear onus to clearly identify within each of the 7 iterations of his clients’ statement of claim what misrepresentation, fraud, breach of trust, willful default or undue influence, disorder or disability of the mind, malice, grossly erroneous intention or other condition of the mind, including knowledge or notice, which they alleged against me. By law he had to do this in order to allow me to properly and adequately plead any defences, to define relevant questions for trial, and to avoid me being taken by surprise. The Supreme Court (General Civil Procedure) Rules 2015 state [emphasis mine]:
13.10 Particulars of pleading
(1) Every pleading shall contain the necessary particulars of any fact or matter pleaded.
(2) Without limiting paragraph (1), particulars shall be given if they are necessary—
(a) to enable the opposite party to plead; or
(b) to define the questions for trial; or
(c) to avoid surprise at trial.
(3) Without limiting paragraph (1), every pleading shall contain particulars of any—
(a) misrepresentation, fraud, breach of trust, wilful default or undue influence; or
(b) disorder or disability of the mind, malice, fraudulent intention or other condition of the mind, including knowledge or notice—
which is alleged.
Southall did not comply with these Rules, thus greatly surprising and shocking me by his later grossly erroneous submissions, comments and allegations, and thereby not allowing me to prepare any of the defences to which I was entitled. Further, the accusations were entirely unwarranted, false, unprofessional, snide, nasty, unfounded, hurtful, embarrassing, and defamatory, and were entirely unsubstantiated – and such comments are available to anyone who reads the transcripts – which one of their navy, snide, unintelligent and irrational representatives has latterly confirmed [emphasis mine]:
It’s all on the internet for everyone to read …. All of the judgments let the world know…
Southall, rather than focussing on the legal issues at hand, repeatedly attempted to divert from those issues by personal attacks on me – this behaviour was highlighted in the interaction between Southall and Pagone J[1] where Southall repeatedly accused me of being disingenuous without cause or reason (other than his own nastiness in the situation). Pagone J identified the severity of such a claim (i.e. that it was an accusation that I was lying under oath), and repeatedly asked if Southall wanted to him to seek to make such a finding – Southall repeatedly responded “No”. Making his defamatory comments became very illuminating when he went on to state that his real reason for continuing to make the abhorrent and fraudulent claim was simply to lower my credit in this and other matters:
His Honour: Do you need a finding by me that she was disingenuous?
Southall: No, we don’t.
His Honour: Why do you say it in submission?
Southall: Because it lowers her credit and it lowers her credit in terms of other issues.
Given that the website was factual and accurate, and that I had been entirely truthful at court and in documents, evidence, testimony, addresses and submissions[2], I was caught entirely by surprise by the venom and the number of defamatory and outright dishonest and nasty aspersions aimed at me by Southall. These defamatory comments were of a pernicious substance, an attempt to cause me insidious ruin, were injurious, detrimental, destructive, and damaging – as was the admitted above-stated intention. As with his attempts at intimidation[3], Southall’s defamatory conduct was unprofessional, hurtful, noxious, vexatious and malicious. It was reasonable for me to expect to be treated with dignity by Southall.
Mr Steve Mark, the then NSW Legal Services Commissioner stated in his 2009 Ethics in Litigation and Court Proceedings:
In Australia there exists a positive obligation on all practitioners in Australia to ensure that their communications are courteous and that each practitioner avoids offensive or provocative language or conduct.
It is important to note that both Rule 25 and Rule 31 only deal with the obligation of courtesy between practitioner/practitioner. There is no obligation under the Conduct Rules, which stipulates that a practitioner must act courteously toward his/her client or other third parties. [However, t]he Statement of Principles prefacing the section of the Rules dealing with Relations with Third Parties merely states:
Practitioners should, in the course of their practice, conduct their dealings with other members of the community, and the affairs of their clients which affect the rights of others, according to the same principles of honesty and fairness which are required in relations with the courts and other lawyers and in a manner that is consistent with the public interest.
Therefore, for Southall to treat me in the manner he did was appalling and unacceptable conduct. Further, as stated previously, Southall’s conduct caught me entirely by surprise and I was not able to prepare for his repeated attacks.
Southall settled the documents which defamed me by inserting into the particulars to paragraph 15 of each and every one of the 7 iterations of their statements of claim [emphasis mine]:
… 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. [Her] 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.
Southall knew this was grossly erroneous because he also settled his clients’ affidavit of documents containing correspondence proving that the above was an entirely false claim. Further, Pagone J noted that the documents in the affidavit of documents that were hidden by Southall were entirely relevant to Southall’s case in trying to prove his and his clients’ assertions, and Pagone J noted that those documents did not prove Southall’s assertions[4], but countered it.
Southall further defamed me by having settled each and every one of the 7 iterations of his clients’ statements of claim with the paragraph 16 implication that not only had I blackmailed his clients, but that I intended to continue to try to blackmail them by the use of the website [emphasis mine]:
[The defendant] threatens and intends to continue website publications of the same or similar nature against [the plaintiffs] as those above complained of, unless restrained by the Court from doing so.
Southall knew this to be entirely untrue because he settled each of the last 5 statements of claim knowing that: (1) the words objected to were removed immediately they were finally particularised – which was particularly relevant given that the last 5 iterations were prepared, filed and/or served between 8 days and 11 months after the removal of the words and 11.5 months before the trial, (2) the website was pulled down in its entirety on 15 November 2012 – which was particularly relevant to the last 4 iterations that were prepared, filed and/or served between 1 and 4 months after the removals and 4.5 months before the trial;
Southall defamed me by having settled the first 5 iterations of their statements of claim and inserting the grossly erroneous claim that [emphasis mine]:
[The defendant]’s dominant motivation in making the website publications was in furtherance of her campaign to discredit and injure the [plaintiffs] and the Casacir quarry operation, and to thereby pressure Casacir to acquire the Shapher land from Shapher, alternatively [the defendant], at an inflated price.
Southall defamed me by having settled the first 3 (and arguably the first 5) iterations of the statements of claim with the claim that I was motivated by malice [emphasis mine]:
By reason of paragraphs 17 to 21 inclusive, it is to be inferred that in making and publishing [the plaintiffs’] Statements, [the defendant] was actuated by malice.
Southall defamed me by having settled by his submissions, addresses and cross-examinations of further purported threats of blackmail, extortion and intimidation [emphasis mine]:
Mr Southall: [the first plaintiff] will give evidence that by way of aggravated damages – seeking aggravated damages as background, and I actually haven’t opened this yet. I did advert to it in the particulars, those letters, there are some letters, that on at least three occasions and probably four we think or he recalls, offers have been made from [the defendant] to purchase the land. The first one was after a local council meeting in which they had discussions in the Baw Baw car park on the prospect of purchasing land. The second occasion at a meeting in the offices of [the defendant’s] former solicitors, Tom Callander of Rigby Cooke formerly Rigby Fielding, but Mr Callander informed [the first plaintiff] that there were a number of other people that [the defendant] had brought along and he felt that he had been ambushed and that didn’t proceed. The third occasion was during the two day mediation of the VCAT proceeding when he and [the second plaintiff] made certain offers to buy the land but [the defendant] was seeking a figure far beyond any quotation that had been obtained in respect of her land and he feels on his part, and he’s got little doubt, that she wrote – the letters that we will be putting – in fact, they are in evidence in the folder, that those letters written by her or on her behalf have clearly been sent in order to acquire – for them to acquire her land or the Shapher land and part of the reason for her conduct on many occasions in VCAT and publishing the website was to enforce a higher price for the land. That will be the substance.
His Honour: Where’s this in the pleading?
Mr Southall: It’s in the latter part. It’s paragraph 15 and when Your Honour raised before lunch the issue of why that letter of demand wasn’t there, I mentioned there’s a number of other correspondences are particularised to justify the aggravated damages and those particulars are set out on page 6: “[The defendant’s] lack of good faith is demonstrated by the volume of defamatory material published on her website”, et cetera, continued publication, general nature and tenor. Going further down: “And further by her motive to cause ongoing injury to the Casacir quarry operation … (reads) … the contents of which are self-explanatory and which are in the possession of the solicitor for [the plaintiffs].” If we can get those documents, those letters are severally – they are attached to the notice to admit which is exhibit A but marrying up exhibit A under section B with the particulars subjoined to paragraph 15, the first letter is 16 August 2006, that’s attachment 3; the second letter particularised is 14 April 2007, that’s attachment 5; the next letter is 2 February 2010, that’s attachment 6; and 26 August 2010, that’s attachment 8. So they are pleaded and they are particularised, Your Honour, and they are particularised in the context of demonstrating lack of good faith, existence of an anterior purpose and unjustified and unreasonable conduct and they constitute the template of a claim for aggravated damages and those letters, in our submission, are plain on their face.
Mr Southall: Then the next note is an email, it’s to [the first plaintiff] and it’s expressed to be from [the defendant’s husband] but, in fact, is signed by [the defendant] on page 2 of 4: “[T]his note will address two topics. The first is to inform you that we now have … (reads) … progressively at our convenience.” I might interpolate there, it seems to be said in terrorem: “The bottom line is we bought here to retire in peace and quiet … (reads) … get over all the other legislative issues.”
His Honour: Certainly your case has been dependent to some extent upon the personal conduct of [the defendant] in determinately seeking to extract from your clients more than she and her husband or, more accurately, their superannuation company was entitled to seek by reason of the conduct of the quarry, and this correspondence dated March 2011 – namely, a year before certain events and certainly two years before now would in any view bear upon those matters.
Mr Southall: There was nothing in terrorem by saying that? Do you know what I mean by saying in terrorem?
Me: No, I don’t.
Mr Southall: There was nothing by way of trying to intimidate them or to force them to buy by putting that?
Me: Absolutely not.
Southall was particularly hostile, venomous, belittling and mocking in his defamatory comments:
If [the defendant had] researched the law, which she could, she would know that the law is almost inescapably against granting relief of an injunction for defamation…
This was particularly nasty, unnecessary and disparaging since he identified that he knew that he could not get an injunction[5] but was being shifty in appearing to attempt to gain one (but he was trying to shift the blame on to me), and was continuing to claim it anyway. How was I, an untrained self-represented litigant, to know that he would be fraudulently claiming something he knew he could not be granted? And then to use it against me…
In further blatant and callous disregard for the truth, although I had done nothing to deserve these vitriolic outpourings, Southall continued his conduct by knowingly and grossly and erroneously embarrassing, vilifying, harassing, and insulting me, and injuring my reputation by defaming me. He did this by his repeated false and particularly nasty, hostile and venomous verbal attacks on me, when he decided to go to whatever lengths he needed to in order to unwarrantedly disparage and denigrate me to the court.
She is a lady who has demonstrated by the nature of her court documents and by the timing of her court tactics …
This lady, your Honour, is not a person motivated by the highest of principles that she espoused by quotes from Shakespeare and from Einstein, she is a lady who, whether it’s through gross and unreasoned prejudice – to quote a famous judgment of the House of Lords in Horrocks v. Lowe – or whether it’s for any other reason, whether it’s consciously or unconsciously, she is a lady who believes she has a licence to say that people lie and say that people lie under oath, and she’s done it.
… in particular the anterior motives of [the defendant].
As I said, the fluidity of her position would appear to indicate that she still retains anything that she can retain, including truth.
Your Honour ought to draw certain adverse inferences in respect of this lady’s conduct right up to the point of the conclusion of this proceeding.
Her evidence in the witness box when tested by myself and your Honour was disingenuous[6] and ought to be rejected… In that regard you are to see [the defendant] herself as an intelligent, if not somewhat disingenuous person.
It’s suggesting that she’s knowingly misconstruing the words for the purpose of her evidence and, if that’s untruthful, yes.
That’s your assertion.
Are you being honest? … I’d suggest that you are telling an untruth.
[The defendant], … either chooses not to know …
…she takes what one might call a fluid position… on most issues, and liability is part of that fluidity and her motive is part of that fluidity and her intent, …
… she was determined to adopt just about any measure she could at her disposal, I don’t say that in a pejorative sense, lawful measure at her disposal to prevent the quarry and operation proceeding on the site of Neerim North.
Talk about the pot calling the kettle… In great disregard to the truth, and in a yet further attempt to malign and defame me, Southall made the following uncalled for and unwarranted accusations before Emerton J in order to get the costs of the enforcement application (and the appeal) against me so as to get his clients yet more money from me:
Now my proposition to you, and it’s assertion only by way of submission, is that certainly [she] wouldn’t be prepared to admit it, but what we’ve got are the – are her own letters which clearly set it out, and they’re not – they’re not three line letters. They’re three page letters which clearly set that fact out and, without putting too fine a point on it, indulge in threats. Certainly verbal threats – written and verbal threats – I should say written threats.
It must be noted that the same issues were later raised before Pagone J and Pagone J made no such finding.
In great disregard for the truth, Southall continued to try to injure my reputation by repeatedly making derisive noises[7] about what she submitted, thereby inferring to the court that I was a liar:
His Honour: Well, Mr Southall, you need to be careful not to put off [the defendant] unnecessarily by allowing your natural instincts and reactions.
Mr Southall: Yes, your Honour, it’s probably the second or third time I’ve done it, and I apologise for that.
Southall further defamed me by claiming that she used force and threats to try to sell my land to Southall’s clients, and to cause problems for them [emphasis mine]:
So they are pleaded and they are particularised, Your Honour, and they are particularised in the context of demonstrating lack of good faith, existence of an anterior purpose and unjustified and unreasonable conduct and they constitute the template of a claim for aggravated damages…
All those documents are part of exhibit A appended the notice to admit and the documents are partly particularised under paragraph 15 and are partly particularised in further and better particulars dated 25 May 2012 by [the defendant]. We rely upon those as evidence of anterior motive for the purpose of aggravated damages.
Then we get down to the point of our contention, the circumstances justifying an award of aggravated damages. [The defendant’s] ulterior motive of attempting to secure the purchase by [the plaintiffs] of her adjacent property at an inflated price by putting pressure on [the plaintiffs] through her publication of the website. The evidence of this ulterior motive is apparent in the series of letters that she sent to [the plaintiffs] from 2006 onwards, as compared with the prices ascribed to her property in various valuations done for and commissioned by [the defendant] herself over that time.
… those letters written by her or on her behalf have clearly been sent in order to acquire – for them to acquire her land or the Shapher land and part of the reason for her conduct on many occasions in VCAT and publishing the website was to enforce a higher price for the land. That will be the substance.
Very much the core of your resolution of the matter was for them to buy your land in accordance with the prices contained in that letter…
Then we get down to the point of our contention, the circumstances justifying an award of aggravated damages. [The defendant’s] ulterior motive of attempting to secure the purchase by [the plaintiffs] of her adjacent property at an inflated price by putting pressure on [the plaintiffs] through her publication of the website. The evidence of this ulterior motive is apparent in the series of letters that she sent to [the plaintiffs] from 2006 onwards, as compared with the prices ascribed to her property in various valuations done for and commissioned by [the defendant] herself over that time.
I will be seeking to put this light on it, and this in my submission is the more force in relation to the document – that is that for many years almost unilaterally, almost unilaterally [the defendant], whether through herself or through Shapher, was seeking to treat to sell her land and originally sell the land of those surrounding her as well to our clients. She continued from in about 2007 up to 2011, and when things didn’t turn her way, when there was no response to that, she commenced publication of the website in the same year in August 2011, …
That was a clear intimidation, isn’t it?
… but [The defendant used] the website as a tool of waging the war so to speak that was engaged and continued… the prolongation of the website campaign,.
This wasn’t the first time Southall had, without cause or proof, declared that I was disingenuous and he declared that I knew things that I did not know. He made the same accusation to Emerton J in an effort to gain CASACIR the costs of the enforcement hearing, plus cost of the appeal:
[W]e say it’s a disingenuous position that she’s had all that time.
And, by his grossly erroneous, unsubstantiated, and defamatory accusations, he won the case for his clients, resulting in an award of in excess of $110,000 in costs of the VCAT hearing and the appeal.
One of the erroneously claimed instances used to try to infer that I had put “undue pressure” on Southall’s clients, or effectively tried to blackmail them, was on 24 January 2007, where they had claimed that I had initiated the meeting and had been confrontational about it. However, during examination and cross-examination of the first plaintiff about that meeting of 24 January 2007 he was clear that it was he who initiated the meeting, not me [emphasis mine]:
The first plaintiff: We were trying to get a work authority through, our application through the shire and [the defendant] and ourselves had presentations to a council meeting. We wanted them on board. After the meeting, one of the councillors said to me – – –
Mr Southall: Don’t worry about what he said.
The first plaintiff: So I went and saw [the defendant] and asked if she was in a position – – –
Mr Southall: In response to something a councillor mentioned to you?
The first plaintiff: Yes, which I did. I went and saw [the defendant] outside.
Mr Southall: Outside the council meeting?
The first plaintiff: Outside the council meeting.
Mr Southall: Was the substance of the discussion as best you can recall?
The first plaintiff: Whether she was interested in being bought out and how we proceeded from there.
Mr Southall: What did she say?
The first plaintiff: She would think about it but she thought she was interested and I think we even spoke that night about valuations. From that, [the defendant] got back to us and we, [the second plaintiff] and myself, went to see her at a solicitor’s office in town here somewhere, Tom Callander.
The first plaintiff: What you are talking about is after discussions with the council, they suggested I talk to you to see whether we could actually come to a compromise and make an offer to buy the place. I went out and saw you outside the council ….
This proved that some of the communication about the offer for sale was from Southall’s clients, not me, and that therefore this was further proof that Southall’s nasty and defamatory insinuations were fraudulent. In addition:
- there was correspondence that was concealed that proved that some of the letters were in response to letters from Southall’s clients;
- there were pieces of correspondence that Southall concealed and which proved that his claims for aggravated damages were fraudulent (but which took up, and wasted, in excess of a quarter of the trial); and
- there were Southall’s accusations of meetings with the purported threatening conversations that that were admitted under oath to not have taken place. One such example is where the respondents deliberately and fraudulently claimed that I had attended the second plaintiff’s office and made a further (purportedly threatening) “offer”, and they enhanced their claim in their response to my request for further and better particulars – the reality is that that meeting did not ever take place and there was no such conversation, and this was admitted by the second plaintiff under oath.
Southall submitted to the court, as absolute and unequivocal fact, that:
It’s common ground amongst people in the industries in Gippsland that Casacir stands for the somewhat crude express, “crush any shit and call it rock”
However, in a total about face following his own admission, and both his clients having confirmed it as fact under oath, Southall subsequently fraudulently denied it when he claimed [emphasis]:
It proceeds on an accepted statement of facts and we don’t accept – it was never accepted – it’s a product, in our submission, of [the defendant’s] mind.
In fact, Southall had submitted to the court that the second plaintiff admitted to and was entirely unworried about the acronym. Southall, reading from his witness statement/proof of evidence, told the court that the second plaintiff had admitted that:
He came – he needed another name for the Mount Speed quarry: “It was a very muddy quarry so it had acquired the nickname Mount Mud and I came up with Casacir from that nickname”.
That proved that it was not in my mind at all – this was yet another grossly erroneous misrepresentation produced and paraded by Southall as absolute truth. Southall clearly considers that truth is subjective and is whatever he wants it to be at any given time, especially when he wanted to defame me.
Southall was very happy to twist matters that happened in relation to Mr Dunn. He erroneously submitted, as absolute unequivocal fact, that:
[The defendant] was prepared to go public as it were in the nature of this court and say that Mr Dunn was telling lies at the time he was in the witness box.
The fact is that I merely answered a question put to me by his Honour:
Me: It relates to the relationship between Mr Dunn and [the plaintiffs], Your Honour.
His Honour: How?
Me: Because I submit that Mr Dunn has previously allowed unauthorised and unlawful works and the ones done in 2009, I’ve got photographic evidence, if you wanted to see it, that the works were well and truly finished before the application was applied for. Mr Dunn only went out and applied – told [the first plaintiff] that he had to apply for a permit because I said, “They have done these works without a permit”, so I submit that the evidence that Mr Dunn’s giving is not wholly truthful.
His Honour: I see. I understand that what you are trying to do is test the credibility of the witness, is that the point?
Me: Yes.
His Honour: I will allow the question.
However, Southall later still adamantly claimed that I had declared that Mr Dunn had lied under oath [emphasis mine]:
Mr Southall: Going to page 311, line 24, [the defendant said]: “Because I submit that Mr Dunn has previously allowed unauthorised and unlawful … (reads) … So I submit that the evidence Mr Dunn’s giving is not wholly truthful.” This is in the course of a submission to your Honour, and then your Honour quickly steps in: “I see, I understand what you’re trying to do is test the credibility of the witness. Is that the point?—Yes.” So your Honour, even during the course of the proceeding and even in respect of a person who is not a party to this proceeding, [the defendant] was prepared to go public as it were in the nature of this court and say that Mr Dunn was telling lies at the time he was in the witness box. My recollection is that he’d affirmed, so he was on oath, and so she was prepared on that basis and look at it in the context in which she was saying he had told an untruth, that she had photographs of works that had been carried out without a permit. Your Honour ought to draw certain adverse inferences in respect of this lady’s conduct right up to the point of the conclusion of this proceeding. …
His Honour: I must say, just so that you’re not mislead by the way I perceive it – and, like you, I don’t propose to interrupt your submissions on each occasion – but I rather took [the defendant’s] point was somewhat different there from the way you are putting it and that you may well be putting your case on this point much more highly than you can. What I thought she was trying to say was that there were occasions when work was done before permits had been either obtained or applied for – and I must say I thought that was his evidence. I think his evidence was, sometimes works get done because as a matter of sensible and sound administrative practice, something needs to be done. Everybody knows that a permit’s going to be given, except possibly [the defendant].
Mr Southall: He certainly said that, yes.
His Honour: So that all she was trying to test, I thought, was that proposition.
Mr Southall: My reading of the transcript, and completely refreshing my memory of his testimony, is that [the defendant] was questioning the truth of what he was saying in the witness box.
His Honour: None of that surprises me, nor does it surprise me that [the defendant] would want to say, isn’t the truth of the position that sometimes work was done before the permit was either obtained or applied for? I would have thought the answer to that question is, “Well, of course that happens in life.” She however wanted to say, “Well, there you go, that shows that sometimes what was said wasn’t quite as strictly said as it should have been.” A matter she’s capable to make in a submission. I don’t read any of that as being an assertion – this is the point – I don’t read any of that as an assertion by [the defendant] that Mr Dunn lied on oath.
Mr Southall: We’ll have to agree to disagree on that point your Honour, because whilst I accept the rest of your Honour’s explanation, the words that are used at the very foot of page 311, “They have done these works without a permit.” So I submit that the evidence that Mr Dunn’s giving, giving in the present tense – and they are were her words, I can recall that, it’s been correctly transcribed, is not wholly truthful.
His Honour: That’s right.
Mr Southall: That’s, the evidence is not wholly truthful.
His Honour: Because she’s testing the proposition about whether the works had been done without a permit.
Mr Southall: Yes.
His Honour: But not the lying on his oath.
Mr Southall: Well, he was on oath. He had affirmed.
His Honour: Not wholly truthful is the same as not entirely accurate. There are other bits of information.
Mr Southall: Yes, your Honour. I won’t proceed with that until – – –
His Honour: What’s more, nothing in her submissions yesterday has suggested that I should disbelieve anything that Mr Dunn said.
Mr Southall: No. That’s so, your Honour.
His Honour: What’s more, you didn’t put anything like that to her when you cross-examined her. You didn’t put to her, “Look, you say as part of your testimony that this man lied on his oath.” On the contrary, you asked questions about how everybody had been telling the truth and how she regarded it as important to be telling the truth and so on. You will recall that, I’m sure.
Mr Southall: I do. Thank you.
In spite of his Honour’s accurate clarifications that I had not accused Mr Dunn of lying under oath, and in spite of his own agreement to that fact, Southall then continued his grossly erroneous claim that I had called Mr Dunn a liar:
[The defendant] attempted to submit that Mr Dunn was not giving truthful evidence at transcript page 311 line 31 to 312 line 1-2.
In spite of having clearly stated to his Honour that:
We are not seeking to persuade your Honour that the website at large is the defamatory document,
in an effort to yet further malign me, Southall then, in what appears to be a typical turn around, stated as unequivocal fact that:
Can I also say that when she removed what she referred to in her evidence, that the offending parts were removed in February – the same year 2012, apparently on the advice of counsel, they also indicate – not only advice of counsel, but indicate a knowledge and consciousness and an admission that the allegations were defamatory.
The fact that [the defendant] removed the website in late 2012 – within days of the original (unsuccessful) mediation – in the context of this Court proceeding, constitutes, it is submitted, an admission on her part that the website contained defamatory publications against each of the [plaintiffs].
In spite of Southall’s grossly erroneous claims, there was no knowledge, consciousness or admission of any such thing because the website publications were true (and he knew it). I had removed the publications as an act of good faith and not for any other purpose than to try to stop the fight from my side of things. But, yet again Southall falsely and dishonestly assigned to me motives and thoughts that were not mine and I told His Honour this and it was not denied by Southall:
[Southall and his clients] have attributed to me motives that are not mine, they have put on me reasons that are not mine, and they are not valid yet they’re claimed as absolutes.
Southall deliberately, determinedly and repeatedly added to his defamatory remarks.
I was and am a self-represented litigant with no actual legal training[8]. Southall tried to defame me in order to try to jeopardise my case and deny me justice when he fraudulently submitted to Pagone J that:
… you should consider this lady not as a normal run of the mill self-represented person. … her ability to represent herself since then and her knowledge of court processes and tribunal processes would take her out of the range of the self-represented litigant in the sense that an ordinary and reasonable man or woman might contemplate that.
I responded to his Honour the next day:
Yesterday [Southall] tried to prejudice my case by saying you should not give me as much leeway, if you like, or assistance as you would a normal person.
Even Pagone J acknowledged that:
…it was … against your interest.
Not satisfied with his many other defamatory remarks, Southall made yet further derogatory aspersions against me:
Your Honour, I have to say in all honesty, I don’t envisage – particularly given the somewhat pessimistic remarks made yesterday afternoon at the reconvened mediation by his Honour about the chance of success, I don’t envisage trying to resurrect that avenue.
He also told his Honour that [emphasis mine]:
Actually, both Mr Harrison[9] and his Honour performed a very admirable job in very confined circumstances.
I found Southall’s implications extremely insulting: if indeed there were pessimistic comments or confined circumstances (which was hearsay), then it would have been because when the mediator had gone to discuss further negotiations with Southall and his clients, including the intention to hand over a hand-written copy of my apology, he found that all of Southall’s party had left, apparently without any warning. In addition, Southall spoke of matters in mediation without first obtaining my consent – which is, I understand, against the law (I speak of them now because Southall opened the door to do so).
The majority of the defamatory comments were made before the court, including Pagone J and his associate, a number of court staff, other persons in the courtroom (of which there were many), was also heard by the transcriptionists, and is available to anyone who reads the transcripts and judgment[10] in years to come[11]. Further, the judgment and transcripts have since been read by other judiciary and court staff in the course of other matters. There has never been any apology from Southall, either verbal or written, and that must be further counted against him.
As seen, Southall has repeatedly tried to defame me by making such absolutely unsubstantiated, unfounded and totally inaccurate allegations and has thereby played with my life as if it is a toy for his own personal enjoyment. His conduct shows his desperation, and yet further exemplified his appalling and sometimes fraudulent conduct.
Defaming someone is clearly not unusual or abhorrent for him, and particularly in relation to me. Interesting isn’t it that he was preeminent in taking action against me for purportedly defaming his clients by publishing factual information, and yet he doesn’t feel at all badly about repeatedly defaming me when what he claims is not true and he defames me in bad faith and with a clear, unambiguous and acknowledged ulterior purpose.
His Honour: Do you need a finding by me that she was disingenuous?
Mr Southall: No, we don’t.
His Honour: Why do you say it in submission?
Mr Southall: Because it lowers her credit and it lowers her credit in terms of other issues.
Southall has proved that he is willing, and actually wanting, to put the allegations out there, but was not willing to try to validate them.
It is self-evident that the words were said, and said in public given that they are on transcript and/or in the statements of claim filed with the court and/or used in the defamation proceedings against me, and are readily available to anyone to read.
It is submitted that the defamatory words used against me would lead any ordinary reasonable person to think less of me, and that there can be little question that in the minds of ordinary, reasonable persons, the words put a significant serious slur on my reputation.
The words he used are apparent, distinct and are self-evidently defamatory in their ordinary and natural meaning. In addition, they clearly satisfy the test under common law as being defamatory matter. Such examples are set out and explained, for example, by the High Court in Radio 2UE Sydney Pty Ltd v Chesterton[12].
The words are of a very seriously defamatory nature, in particular the fraudulent assertion before the court that I was disingenuous and that I gave false testimony under oath.
In defamation, it is trite law a person does not need to prove that damage had been done to their reputation, rather it is to be assumed as the natural or probable consequence of the defamatory words.
There is strong evidence that the words have caused me shock and distress just since the defamatory words:
- I have put on a lot of additional weight (in excess of 15kg on top of the 25kg I had already gained due to the stress they put me under by their lies);
- I have now developed type 2 diabetes; and had breast cancer leading to a bi-lateral mastectomy;
- I have found it difficult to breathe at times;
- I have had to continue with psychological assistance;
- I have had panic attacks, and suffer from a number of the symptoms of PTSD;
- I am not nearly as trusting or open with people;
- I feel tired, flat, useless and stupid;
- I have lost confidence in myself;
- I am humiliated and ashamed about what was said and written about me; and
- I found Southall’s written and verbal defamatory words to be both disgusting and appalling and was so surprised by them that I was unable to fight them or properly defend myself.
I was so surprised and has become so devastated by their virulent, snide and fraudulent defamatory conduct that I missed the timeline for taking action against Southall – unless the court would somehow allow an extension of time. However, should he ever with to take action against me for what I have written, I mis==ost certainly counter-claim fro all that he has put me through and done to me.
Who knows what detrimental impact Southall’s defamation of me had on the decisions of the court.
[1] T497:12–T501:28
[2] And I had been entirely honest at VCAT, even proving my case by 200 pages of photos and FOI results.
[3] Addressed in a different document
[4] Reasons at [54]: “the documents tendered by [the defendant] were plainly relevant to the plaintiffs’ case and the documents received by them ought to have been discovered by the plaintiffs. In my view they bear fundamentally upon the conclusion which the plaintiffs seek the Court to draw about circumstances surrounding the publication of defamatory words which are said to justify an award of aggravated damages. The making of offers in February and March 2011 upon terms that built upon what had been offered by the plaintiffs is, as the very least, an important step in the chain of circumstances reflecting upon the plaintiffs. The documents ought to have been particularised if only as part of the documents said to be part of the correspondence from which the Court could evaluate the extent to which [the defendant] was said to have been seeking inflated prices.”
[5] This topic is enlarged upon later in this document
[6] The dictionary meaning for disingenuous is: dishonest, insincere, untruthful, deceitful, hypocritical, misleading, duplicitous, and devious.
[7] Similar to what is generally termed “blowing a raspberry”
[8] I was a secretary in a legal firm for a few years, but with no specific legal training.
[9] The duty barrister kindly assigned to me by the Court
[10] Where Pagone J quotes from the documents created by or for Southall’s clients.
[11] With the judgment being up on the world wide internet, and anyone being able to obtain a copy of the transcripts.
[12] (2009)238 CLR 460 at [3]-[7]