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 relation to my offer of compromise, Southall repeatedly and deliberately gave grossly erroneous and misleading addresses and submissions. This was done under the instructions of Smith and Spencer, and with the approval of man X and man Y.
On 28 November 2012, I served an offer of compromise in the sum of $40,000 (plus costs) on Southall’s clients.
Three weeks later (on 19 December 2012), under a Calderbank offer document settled by Southall, I received an unequivocally rejection of my offer. In their Calderbank offer in response, having run up a further $10,000 in costs according to them, they offered to settle the proceedings for $125,000. Their “offer” stated that their costs to date were $75,000 and their offer (without the costs) was $50,000.
Given that my offer was $40,000 plus costs, with their costs stated as being $65,048.36 as of 13 November 2012 (just 2 weeks shy of my offer), that settlement would have resulted in a settlement of $105,048.36. By 19 December 2012, the amount of costs was an additional $20,000; so effectively their offer was close enough to the same as mine in total. Therefore, they should have accepted my offer.
On 15 March 2013, just days prior to the commencement of the trial, 4 months after receiving my offer and 3 months after having actively rejected it, Southall and Kaye settled[1] a very belated and little thought-out offer – identical to mine. They later claimed that this was a genuine offer:
[T]he plaintiffs’ offer was a genuine offer[2],
The details of what I allege is dishonest regarding that offer is towards the end of these pages – I didn’t accept their offer given that I believed that theirs was not a genuine offer at all. As a consequence, the trial proceeded.
Pagone J later told Southall and me that it would be good to have one more discussion prior to the end of the trial in order to hopefully settle the matters:
It would be worthwhile having one further internal discussion and one further discussion between you. All evidence is now finished, so the problems that the legal camp had with talking to [the defendant] has to some extent evaporated. You can – not necessarily you – but somebody can have a discussion if that’s what was the impediment here before.
Therefore, the next morning, a meeting was held in the court waiting room between myself and Southall, with me making it clear that I was reiterating my offer of $40,000 plus costs, with the difference to the offer of 28 November 2012 being the need to have the payment of the costs reliant upon the sale of the Shapher land [3]. Southall took my offer away and discussed it with is clients and came back and refused my offer.
I was not aware as to when offers of compromise had to be presented to Pagone J in relation to costs. On the last day of the trial I told Pagone J that I had an offer of compromise (separate from the offer of compromise of 28 November 2102) that I had presented to Southall the previous morning and which Southall (and his instructors and clients) had discussed and subsequently refused, but that I intended to have it properly drawn up and served. Pagone J rightly did not want to know about this new offer because he had not yet handed down his Judgment at that time. The conversation went as follows [emphasis mine]:
Me: In finishing: Yesterday I submitted the following document to the plaintiffs, with it being refused. I consider it an answer that solves all the problems and I’ll be having it formally and properly drawn up by a lawyer and filed with the court and served on the plaintiffs next week. Do you want to see that, your Honour, it was an offer of compromise?
His Honour: No, no, I certainly don’t, it’s not matter that I can take into account, I’m afraid… Just before you sit down, I think I should just qualify what I’ve just said. It’s not appropriate for an offer to be put at the very last thing of a closing address, because that would mean that part of your defence to the proceeding would rely upon a fact about which you have not tendered in evidence in the proper way, and Mr Southall hasn’t had any opportunity to think about it, contemplate it, have a response to it – it just isn’t appropriate to do. That’s not to say that it might not have been a relevant circumstance, in the same way that Mr Southall contends that a lack of an apology way back when was a relevant circumstance. Indeed, I suspect that he would say that the fact that you’re making an attempt to make a compromise at this point is something I should take against you. So, the best thing to do at this stage is for me just to say, it’s not something that I should take into account at all. I only qualified the answer because I didn’t want you to think that there might not have been circumstances when it might have been a relevant fact and, as with all of these things I can’t give you advice but you should, if you wish, take advice from somebody able to give it to you.
In spite of Pagone J stating that “Mr Southall hasn’t had any opportunity to think about it, contemplate it, have a response to it”, Southall allowed Pagone J to remain under a gross misapprehension that neither he nor his clients had seen it or discussed it. Southall did not correct his Honour and did not admit that they had seen and discussed the offer and that they had actively and deliberately rejected it (thereby actively and deliberately misleading and deceiving his Honour – to withhold the truth is to lie by omission).
At the handing down of the judgement, Southall’s clients were awarded a combined total of $20,000 in damages. My formal offer of 28 November 2012 was therefore double what was awarded.
Pagone J and Southall had the following conversation:
His Honour: 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 [the first plaintiff] in the amount of $12,000, and for [the second plaintiff] 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.
Then Southall went on to the issues of the s29 application[4], where Southall set out to make Pagone J believe that the s29 application was only about costs
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.
Southall went on to try to fraudulently make his Honour believe that I had not made my proper offer of compromise of 28 November 2012 which was higher than the awarded damages. He did this by strongly telling to his Honour in no uncertain terms that there had not been any such offer in spite of knowing full well that I had served the offer dated 28 November 2012[5], and that it was double the damages granted, plus costs according to the Rules. Southall persuasively and deceptively submitted to his Honour:
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[6] 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 he went on:
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.
That was absolutely fraudulent and it deliberately misled his Honour – his Honour was so swayed by Southall’s submission that he did not then seek to discover if there were any reasons that he should not award costs to the plaintiffs. In fact, given that Southall was so convincing in his fraudulence, Pagone J made interim orders giving the costs[7] to Southall’s clients.
Southall later admitted to their Honours of the 2014 Court of Appeal that he (Southall) had raised the issue, but he was grossly misleading as to the true context in which the issue was raised and how he misled Pagone J:
…not a lot occurred that day but what did …, giving rise … to the issue of the offer of compromise.
This proved that Pagone J had been swayed and Southall effectively admitted it to their Honours [emphasis mine]:
[T]he order for costs was made in fairly sudden circumstances …, that’s all I want to say.
Southall had raised the issue before Pagone J, but in the context as there not having been any offer that was greater than the award of damages – if he had admitted that my offer had been on the board for acceptance, that would have entirely changed Pagone J’s decision in two ways:
- he would not have been so quick to give costs to Southall’s clients, but would have done as he stated in the very last sentence of the very last Reason of his judgment:
I will otherwise hear the parties on the question of costs[8].
This is especially so given that he previously told both Southall and me that [emphasis mine]:
[T]he question of damages is as I understand it at large. … And at large means at large, and if I am persuaded by some of the matters that [the defendant] has urged upon me, that may translate into a very interesting dispute about costs hereafter even if you get an award on the defamation[9].
- he would have had to take into account the following demands in compliance of the r26.08 of the Supreme Court (General Civil Procedure) Rules 2005[10]:
(3) Where an offer of compromise is made by a defendant and not accepted by the plaintiff, and the plaintiff obtains a judgment on the claim to which the offer relates not more favourable to the plaintiff than the terms of the offer, then, unless the Court otherwise orders—
(a) the plaintiff shall be entitled to an order against the defendant for the plaintiff’s costs in respect of the claim before 11.00 a.m. on the second business day after the offer was served, taxed on the ordinarily applicable basis; and
(b) the defendant shall be entitled to an order against the plaintiff for the defendant’s costs in respect of the claim thereafter taxed on the ordinarily applicable basis.
Southall knew this full well and deliberately gave serious and knowingly fraudulent misrepresentations to Pagone J so as to avoid the severe consequences and impacts of having not accepted my offer – he would have also known that it may also have come back on him for his bad advice in advising his clients not to accept the offer. In fact, their Honours in the 2014 appeal stated:
As [the plaintiffs] collectively received less than half the settlement sum proposed by [the plaintiffs], [the defendant] seeks an order that [the plaintiffs] pay her costs in accordance with r 26.08(3).[11]
Their Honours thereby agreed that the plaintiffs had received half the amount of my offer.
Another serious issue arose with Southall having deceived the court by fraudulent conduct regarding offers of compromise – he knew that all offers made at the time of my offer were given to attract the addition of costs incurred. In fact, aside from personally being aware of this situation, Southall had been so advised when Ribbands[12] had previously advised their Honours [emphasis mine]:
The offer was made in November 2012, some six months prior to the trial. Under the Rules at the time, it provided for an offer of $40,000. It was provided as being in accordance – and I understand, Your Honours, that it’s subsequently been provided – I think it may all be, the actual offer of compromise is before you in the Appeal Book, yes. The Rules in force at the time Your Honour – – – … The offer at the time was made in accordance with the Rule 26.03(7) of the Rules then in force. I say then in force because there has been an amendment subsequently. In essence, the Rule provided that an offer of compromise is for a sum and costs follow that event. So the offer was expressed as offering $40,000 and acceptance of that offer would have entitled party/party costs consequent upon its acceptance
Therefore, Southall, knowing full well that although my offer had not specified that it was an “all inclusive” offer, deliberately and fraudulently deceived the court into believing that my offer did not allow the additional costs, but fraudulently claimed that my offer included costs when he claimed as fact [emphasis mine]:
The first is an offer of compromise as you’ll see, filed by Featherbys lawyers, dated 28 November 2012. That was paying to the first and second plaintiffs the sum of $40,000 – so that’s a collective offer.
Then a formal offer of compromise was the next relevant document, if the court pleases, dated 15 March from my client’s instructors, my instructing solicitors. And that is, that the first and second plaintiffs’ offered a compromise to the proceeding by accepting payment from the defendant of the sum of $40,000, plus – as opposed to inclusive which was in the first one from Featherbys – plus payment of plaintiffs’ costs by the defendant, pursuant to Rule 26.03.
This was obviously aimed at getting the court to believe that my actual offer was for basically nothing given that the costs would likely be extensive.
Of further importance is the fact that their Honours in the 2014 appeal stated:
[The defendant] submits that counsel for [the plaintiffs] at trial had been subject to an obligation, due to [the defendant’s] status as a self-represented litigant, to alert the court to relevant offers of compromise when costs came to be considered.[13]
Whether or not Southall had the onus of informing Pagone J of my offer, according to law, he most certainly did have the active duty to the court to not deliberately and determinedly deceive and mislead Pagone J about my offer the way he did.
If Southall told his clients this same lie, i.e. that my offer included costs, that could be why they didn’t accept my offer. If the case had settled in November 2012, Southall would have missed out on at least $111,710.00[14] in fees just in the trial before Pagone J, $97,742.50 in fees in the appeals, and $63,285.00 fees in the s29 application – that is well over $272,737.50 he would have otherwise have missed out if he hadn’t given his clients advice not to accept my offer (and that is without the significant additional fees for his work in the s29 appeal). Southall certainly had a vested interest in having the case continue – one has to question if there was a conflict of interest in addition to all his grossly erroneous conduct and misrepresentations.
Southall went on to further confuse their Honours of the 2014 appeal and the judgment noted their efforts:
[The plaintiffs] submit that although there were a number of complex matters which could potentially have been addressed before the judge concerning the costs of the proceeding, including reserved costs, what they described as ‘numerous offers of compromise and Calderbank offers’, and r 63.24(1.1) of the Rules of Court[15].
There were no ‘numerous offers of compromise and Calderbank offers’ before Pagone J’s judgment: (1) just my one in November 2012 that Southall pretended did not exist, (2) one Calderbank offer in reply that he did not bring to his Honour’s attention given that it was for 3.75 times the amount awarded, and (3) his clients’ offer of compromise that was twice the amount awarded – i.e. the only one that was relevant was my offer of 28 November 2012 and Southall deliberately and determinedly hid that from his Honour so his Honour would not make costs orders in favour of me.
As stated previously, the plaintiffs had served me with an offer of compromise on 15 March 2013. The offer was for $40,000 plus costs in addition to:
[The defendant] agreeing to not, whether by herself, her servants, agent or howsoever otherwise, reinstating the website www.quarryfight.com or other internet site of and concerning [the plaintiffs].
Southall declared that the offer was a genuine offer:
5(f) the [plaintiffs]’ offer was a genuine offer to compromise the full value of the claim which plainly reflected willingness to resolve the claim out of court. [The defendant]’s failure to accept it, or to at least explore the prospect of settlement out of court at that stage by counter offer, was unreasonable having regard to the objects of the Act, the likely time and cost of the impending trial, and the overarching obligation to use reasonable endeavours to resolve a dispute[16].
The plaintiffs’ offer was identical to the one I made some 4 months previously (which the plaintiffs had, in fact, outrightly rejected under letter of 19 December 2012). They agreed [emphasis mine]:
5(a) [The defendant] had herself only a few months earlier … agreed to compromise the proceeding for the same amount and on the same terms[17].
It is to be remembered that Pagone J, after hearing all the submissions, addresses, mitigations, examinations, cross-examinations, and re-examinations, awarded a total of $20,000.00 as damages – i.e. half that which I had offered 6 months previously.
By rejecting my offer, Southall proved the falseness of the plaintiffs’ claims in me having not accepted their offer as being “unreasonable having regard to the objects of the [Civil Procedure] Act, the likely time and cost of the impending trial, and the overarching obligation to use reasonable endeavours to resolve a dispute”. If those matters were truly of concern for them, they would have not run up further costs, would have accepted my earlier offer, and would have resolved the dispute by acceptance of my offer.
If, as claimed, it was an authentic claim:
- they would have accepted my offer of 28 November 2012 – unless they wanted to deliberately run up further costs (which they certainly did do),
- if they had accept my much earlier offer, it would all have been over back in November 2012 and we would not be where we are today;
- it is to be remembered that their offer was well after they had been served with my notice to admit and my affidavit of documents, and they had seen what I proposed to bring to the court’s attention;
- Southall spent very little time on the construction of his offer: they claim to have created and settled their offer on 14 March 2013 (the day before it was served on me) – so no great time was spent on it (he claims time for having settled it, but not for having constructed it – and no wonder since it is virtually a copy of my offer of 4 months earlier);
- Southall had a habit of making grossly erroneous claims[18] as fact and they wondered why I did not take the offer seriously.
In fact, one of the reasons I did not take their offer seriously was the fact that the plaintiffs had previously proved that their “offers” were in many cases groundless and not trustworthy or genuine. For example:
- they agreed to and signed a binding Terms of Settlement Agreement[19]:
- that they would restore the flow of Kookaburra Creek that they had unlawfully and without authorisation, diverted, and that they would do so by a certain date – but did not do restore the flow, and refused to do so, until well after being threatened with further legal action;
- where they unconditionally agreed to not interfere with the flow again – then later informed me and my related parties that they fully intended to remove the flow from my related party’s property and that they would destroy the spring, aquifers, and catchment, that fed the flow and, perhaps, replace the spring water flow with filthy drainage and quarry wastewater that was polluted with hydrocarbons (and who knew what else), and that they would do so in the face of our strong and continued opposition, thereby proving that the signing of a binding document meant nothing to them;
- CASACIR assured the authorities and VCAT members in binding documents that certain things would be done and that other things would certainly not be done at the quarry if a permit was issued – however, many of the things that were to be done were not done and many of the things that were not to be done were done: proving that even a binding document is irrelevant if it is deemed by them to be better if ignored, proving that their word was not necessarily trustworthy and was in fact very suspect;
- CASACIR regularly ignored legislation, binding documents such as court orders and directions, VCAT orders, their planning permit, their work authority, their planning report, witness statements, swearing under oath in affidavits and verbal testimony, and the like – proving that their word was not necessarily trustworthy and was in fact very suspect;
- Southall’s instructors, had previously provided figures in writing their clients would accept in settlement of other matters[20], only to change the figures when those figures were accepted – proving that their word was not necessarily trustworthy and was in fact very suspect;
- in the very actions relating to the offer, the plaintiffs had made fraudulent claims, including claimed losses of millions of dollars and then purportedly abandoned the claims – they would have retained the claims if thy had been genuine.
Therefore, there was no reason to believe that they would not change their minds this time, regardless of it being a so-called “binding” offer. Why then would I have believed that the plaintiffs would take that money if I had accepted the offer (particularly given that Southall had advised them not accepting my identical offer of months earlier).
The plaintiffs revealed the true reason that they refused my offer and proved the real reason that their offer was not really genuine: the bill of costs dated March 2017 states at item 318 under noted under fees claimed by Southall [emphasis mine]:
Discuss and settle memorandum of advice re strategy … for … access to [the defendant’s] assets.
They made the decision to take that strategy just two days after having received my offer – they did not want to take my offer of $40,000 plus costs, they wanted my assets (which they accomplished by their grossly erroneous conduct and claims.
This then gives more than adequate reason for me to not have accepted their offer and gives more than enough reason to believe that their’s was not genuine at all and therefore was just another grossly erroneous claim.
The facts proved that plaintiffs were aware that the misrepresentations were grossly erroneous:
- Their offer was admitted to have copied mine in “the same amount and on the same terms” and they therefore knew that they should have accepted hers but chose to run up more in costs instead. They had numerous discussions and a conference over my offer[21], and produced and read memorandums of advice regarding it;
- According to their bill, their stated costs up to and including 28 November 2012 were $53,255.46, and were $92,504.75 when they served me their offer – that is an increase in costs of $39,249.29. They knew that by refusing my offer, and by delaying their identical offer for months, they would have run up significant costs and would thereby have further access to my assets.
- The pattern of behaviour as exampled above proves that they knew that it was at best grossly erroneous – remembering that they seem to find nothing wrong with deliberately and repeatedly misleading and deceiving the court by grossly erroneous claims, denials, submissions, addresses and falsely sworn testimony.
I was penalised by the refusal to allow my appeal – because I had not produced my offer of compromise before Pagone J.
So, here we have Southall having taken the time to fraudulently submit to Pagone J that I hadn’t made the offer – yet (1) the plaintiffs’ offer, settled by Southall, was a copy of my offer, and (2) so convincing was Southall in his grossly erroneous misrepresentations that there had been no offers, that Warren CJ, Tate JA and Ginnane AJA actively excused Southall’s grossly erroneous misrepresentations [69]-[79], especially at [76]:
In those circumstances, it would be wrong to conclude that there had been any failure by counsel for [the plaintiffs] to discharge an obligation they owed to the Court.
Southall sought to make a reference to settlement offers. Certainly McDonald was swayed:
The plaintiffs submit that [the defendant’s] failure to agree to accept an offer to compromise for $40,000 plus costs and her agreement not to reinstate the website or another internet site concerning the plaintiffs was unreasonable.[22]
Given that I had identified the very valid reasons for not accepting the plaintiffs’ offer (as identified above), McDonald J was clearly swayed by Southall’s verbal rendition of their written submissions at paragraph 5. In fact, so convincing was Southall, that McDonald made the claim that on the face would seem reasonable but was in fact made due to the grossly erroneous claims that I had refused to agree to not reinstate the website, or another website, when:
- 18 months prior to the their claim, I had actually made that exact undertaking to the court[23], and
- 32 months earlier I had offered that self-same undertaking in the offer of compromise that they rejected.
In fact, Southall submitted to their Honours of the 2014 appeal that:
[The defendant] addressed last, and at 461 of the transcript she gave the [undertaking] between Lines 13 and [16].
Thereby proving that he knew that the undertaking had been given and that therefore the submissions he settled to be made before McDonald J were fraudulent when they stated:
The defendant’s failure to accept it, or to at least explore the prospect of settlement out of court at that stage by counter offer, was unreasonable[24].
They knew they were lying because I had been proactive in attempting to achieve a settlement out of court, and the terms of my offer were such that they should have accepted my offer given that they copied it in making their offer and that Pagone J awarded half my offer. Their grossly erroneous submissions swayed the court.
Southall’s grossly erroneous conduct in relation to the offers of compromise was possibly what swayed Warren CJ and Tate JA into refusing me leave to appeal, resulting in:
- the awarding of the additional amount of $120,000 in damages to the plaintiffs (bringing the total to $140,000),
- the right for the plaintiffs to seek interest (which they ultimately won in the amount of in excess of $15,000),
- the amount of $195,000 in costs of the appeals, and
- the right to seek costs for the hearing before Pagone J (with the end result of them claiming in excess of $230,000 in costs),
- the right to seek costs for the hearing before McDonald J (with the end result of them claiming in excess of $166,000 in costs).
[1] Proved by bill of costs served on me on 8 March 2017, at item 460: “14 March 2013 – Settle … Offer of Compromise”
[2] outline of submissions, paragraph 5(f)
[3] Which was being prepared for sale due to the conduct of Southall’s clients being such that it required the sale – CASACIR’s lying under oath at VCAT and its continued failure to comply with legislation and its permit and work authority conditions had forced us to pay in excess of $110,000 and the property had to be sold to pay the money.
[4] My application under s29 of the Civil Procedure Act 2010
[5] Bill of costs served on me on 8 March 2017, at item 318: “Confer with junior counsel re [my] Offer of Compromise and reply strategy”
[6] The Defamation Act 2005
[7] Other than in relation to aggravated damages
[8] Judgment, Reason at [58]
[9] It must be noted that Southall agreed that the damages was “at large” yet he appealed them – again proving that he deceived to Pagone J.
[10] Now the Supreme Court (General Civil Procedure) Rules 2015
[11] Judgment Reasons at [62]
[12] The court appointed barrister for my appeals proceedings
[13] Judgment, Reasons at [62]
[14] From 28 November 2012 to judgment
[15] Their footnote 100 states: “This provides: ‘Where in a proceeding for libel or slander the plaintiff recovers by judgment or otherwise an amount (exclusive of costs) not exceeding $50,000, the plaintiff shall, unless the Court otherwise orders, be entitled only to the costs to which the plaintiff would have been entitled if the plaintiff had brought the proceeding in the County Court less an amount equal to the additional costs properly incurred by the defendant by reason of the proceeding having been brought in the Supreme Court instead of the County Court, but shall not be required to pay the defendant any amount by which the additional costs exceed the costs payable to the plaintiff’”.
[16] The plaintiffs’ outline of submissions in relation to the s29 application.
[17] The plaintiffs’ submissions at paragraph 5(a)
[18] KSA put forward costs that they would accept in relation to the enforcement and its appeal, and, when accepted, then denied that the figures put forth were what would be accepted.
[19] Agreed to and signed at VCAT as being a binding document.
[20] Letter from KSA dated 10 February 2014.
[21] Bill of costs served 8 March 2017 identifies this at items 310 too 314 and 316 to 319.
[22] Judgment Reasons at [65]-[67], particularly at [67]
[23] Quoted in Pagone J’s judgment, Reasons at [57] “At the conclusion of her address [the defendant] said: ‘I agree to not, whether by myself, my servants, agents or however otherwise, reinstate the website quarryfight.com or other internet site concerning either [of the plaintiffs] personally’”
[24] The plaintiffs’ outline of submissions in relation to the s29 application before McDonald J, being part of paragraph 5(f).