In great disregard for the truth, Southall drew documents and used documents that were not for the primary purpose they stated – the intent was to hide the real purpose of the action against me. The real purposes of the case against me were admitted to be (1) to have my former website entirely removed from the internet and (2) to gain access to my assets[1], both of which they have accomplished through their repeated and knowingly grossly erroneous misrepresentations. The intent was also to intimidate me, which Southall admitted to having tried to do and which he believed he had accomplished[2]. He has repeatedly admitted that the case was for the purposes of removal of the website, and he has admitted the aim, after having the website removed totally, was thereinafter to gain access to my assets.
One of the real reasons for the action against me was revealed during the trial and I was entirely caught by surprise – therefore had not had time to prepare for it and wasn’t fully conversant with the importance of it until after the trial had finished.
Southall cross-examined me so as to try to induce a belief in the minds of the court and me that facts were different to reality when he proved that the case was not just about defamation at all, but had far more reaching purposes and he proved this, inter alia, when he asked me in cross-examination:
…so you just thought it was about defamation?
Southall thereby clearly identified that there were other reasons for the action, making the action for defamation duplicitous. I had come to answer specific charges and here we have Southall admitting to ulterior and ancillary motives – motives that were further clarified in the following.
Southall made it clear in examination, addresses and submissions that it was a matter of great importance and even of urgency that he and his clients had had to do whatever it took to have the entire website removed [emphasis mine]:
Now on the 16th we had this matter mediated before Mr Geoffrey Gibson of counsel. That mediation didn’t succeed. And then – sorry the 13th, 13 November. Then three days later we had – the website was removed which is basically what we’ve been after …
The second thing that it’s important for is that it seeks appropriate relief and undertakings and, in particular, the removal of the website as a matter of some urgency.
Mr Southall: Did you immediately contact Mr Smith for the purposes of sending a letter?
The second plaintiff: Yes.
Mr Southall: For the purpose of trying to stop the website?
The second plaintiff: That’s right.
That is true, the words complained of were removed but what we sought was a removal of the website in that letter from Mr Smith and the website was not removed, significantly, until November 2012, only a few months ago, I think a day or two after a mediation of this case occurred on 13 November 2012, at which [the defendant] was represented by both senior and junior counsel. So the website came down within a day or two of that mediation, not, as was sought in the letter from Mr Smith, at a short time after the sending of the letter in August 2011.
The fact is that Southall and his clients saw that the truth contained in the website was more than uncomfortably revealing of them and they wanted it removed, albeit that they did not request that it be removed in its entirety. One of Southall’s clients stated in his sworn testimony that he was unhappy that the website made their actions widely visible to “everybody”, and it further summed up his team’s attitude to the website very eloquently for us when he testified [emphasis mine]:
…after a visit you would upgrade the website and we knew there was a new round of enquiries from all the government authorities… We have always done something but you’ve had to bring it to our attention and everybody’s attention again.
In spite of the entirety of the website not having been pleaded, Southall repeatedly referred to the entire website being on the internet for over a year and that it was the entire website that caused his clients’ problems and concern and, as seen, they desperately wanted it entirely removed [emphasis mine]:
That between 12 September 2011 and 11 October 2012 there were, according to the document discovered by [the defendant], this witness, there were visits to the website, the Quarry Fight website.
It is also relevant that website was on the internet for a lengthy period of time – over a year on total.
His Honour: What’s the position at the moment about what you allege to be defamatory? Are the statements still on the website?
Southall: No.
His Honour: They are all gone?
Southall: The whole lot of them were taken down, the website was taken down one or two days after the mediation on 13 November last year, 2012. The offensive, allegedly defamatory statements or what we say are the defamatory statements were allegedly removed as per the particulars to paragraph 16 of the extant defence, were removed in or about February of last year, 20 February I think it is, 2012. So the website remained but the words complained of were removed.
His Honour: So there’s no continuing – from your point of view, there’s no continuing defamation?
Southall: No…
… indeed, the website remained in whole and indeed continued to be added to – or the website did, I’m not saying the offence of – but the website continued to be upgraded after the letter from Mr Smith was sent on 26 August, …. So six months they were on the web, and then for another nine months until mid-November 2011 the whole of the website, apparently less the offending remarks, …, they remained on the website for people to read for another nine months. So overall 15 months from the date when the letter was first sent.
… No, we’re not [complaining about the other remarks apart from these remarks]. People who read the defamatory remarks would know that they’re associated with … Casacir, and there are references to those entities continuing whilst that remained on the website. … Absent the defamation, yes.
We say that the extent of the dissemination of this harmful website is apparent from the evidence.
It’s a letter written in clear terms by Ken Smith & Associates, the solicitors for both my clients and it sets out, and very soon after this website had appeared, it sets out the clients’ real concern about what was contained in her website at that time, but subsequently added to by further uploading, not known then.
… the damages that His Honour found of 12000 and 8000 respectively for [my clients], we say that’s evidence, it’s manifest that he must have erred in the disentangling exercise because he must have excluded from his assessment any harm that another contributing cause, concurrent contributing cause, such as a website and other causes…
It’s also relevant, in paragraph 29, that the website was on the internet for a lengthy period of time. I’m putting to one side the aggravation in terms of it staying there, … [it] remained in operation … for another nine months until November 2011 [sic] when they were taken down in mid-November by [the defendant].
Nevertheless the website remained in active form until the middle of November 2012.
In fact, the entire website was required for the claims of injurious falsehood and misleading and deceptive conduct that had been purportedly withdrawn!
It was falsely testified to the Court under oath by one of Southall’s clients that [emphasis mine]:
… there were site visits conducted because of the website
Not only did he know that this was falsely sworn testimony (and the authorities confirmed that his written claim and his sworn testimony was falsely sworn; the website had nothing to do with any site visits – in fact, Ms Bignell testified that there were less site visits since the website), but the testimony was about the entire website and not the words complained of, and proved that it was the entire website that was the problem, and not the words they complained about.
Southall exhibited a letter from Marshalls & Dent (in relation to one of Southall’s clients’ customers who was extremely dissatisfied with his company’s work and personal grossly erroneous misrepresentations to her). Regarding that letter, Southall continued to assert that the words complained of had remained in spite of knowing full well that they had been removed [emphasis mine]:
His Honour: So it’s not the defamation that’s caused the problem in that letter?
Southall: It’s the website that [previously] contain[ed] the defamations that’s caused the problem.
Southall’s claim was made in spite of the fact that the words found to be defamatory had been removed months prior to this issue of this letter and, in any event, that section of the website had never contained any words that had been objected to. In addition, Pagone J made it clear that this letter had absolutely no relevance to the case:
[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.
Not having been content to continue to wrongfully and erroneously insert the entire website into the trial, Southall then went on to insert it into his clients’ appeal, regardless of it never having been pleaded, and in spite of Pagone J having been very clear that the entirety of the website was totally irrelevant[3].
However, his Honour’s dictates that the entire website was irrelevant did not stop Southall [emphasis mine]:
Mr Southall: Those extracts were handed up to the court with no problem, no difficulty, for His Honour to consider in quite a thick folder of all the relevant sections of the Quarry Fight website, whereas, in this Appeal Book are just those pages containing the defamatory imputations which I’ve handed up on effectively a one page document earlier.
Ginnane AJA: But the website had lots of other things on it, did it?
Mr Southall: Lots of other things. It was a large and protracted website, and it was uploaded progressively for almost 12 months, but the defamatory aspects, His Honour correctly found, if I might say so, ran from five to seven months, until they were taken down, I think, early in 2012.
Above, Southall had himself noted the innocuousness of the words found to be defamatory [emphasis mine]:
…just those pages containing the defamatory imputations which I’ve handed up on effectively a one page document.
Southall effectively admitted that he believed that he had succeeded in intimidating me into removing the entire website because of his threats [emphasis mine]:
Southall: Nevertheless the website remained in active form until the middle of November 2012. That is correct?
Me: That’s correct.
Southall: Was it mere coincidence you took them down two or three days after the mediation before Mr Gibson in last November. Was that mere coincidence?
Me: It was mere coincidence.
Southall: Mere coincidence?
Me: If I can elaborate.
Southall: Please do.
Me: Yes, the legal team and I got together and said, “Okay what’s the best thing to do, do I really have to have it up”, you know, “We don’t want to be causing dramas”, and I said, “Okay, I’ll pull it down”, and that’s why I pulled it down.
Southall: Our respective views as to what constitutes a coincidence obviously varies. I would have thought that was – and I put to you that that was a direct consequence of what you were told at the mediation by me.
I pointed out to the Court and his Honour that Southall’s focus was on the entire website, and this was not gainsaid by Southall [emphasis mine]:
Mr Southall went on about the rest of the website. The remainder of the website had no relevance to the case and was not pleaded to. It was agreed that it no longer held any alleged defamatory material, so how long it remained up is of no consequence to the case, the claim, or your Honour’s determination.
On the one hand, Southall told Pagone J, as fact, that [emphasis mine]:
We are not seeking to persuade your Honour that the website at large is the defamatory document.
On the other hand, Southall’s repeated real declared purpose was for the removal of the entire website. In fact he stated:
We say the fact that [the defendant] removed the website in late – I think it was the 15th of November, 14 or 15 November 2012 within days of the original unsuccessful mediation of this matter, in the context of this proceeding constitutes we say, apart from going to the questioning of aggravation of damages, and I don’t want to go into that just yet your Honour, but we say that that constitutes in effect an admission on her part that the website contained defamatory publications against each of [the plaintiffs].
So Southall really was trying to erroneously say that the entire website was defamatory.
Pagone J noted Southall’s attempts to assign blame on the entire website, and the length of time the remainder of the website was on the internet (long after the words complained of were removed) [emphasis mine]:
Under the claim for general damages, Senior Counsel for [the plaintiffs] added that it was “also relevant… that [the] website was on the internet for a lengthy period of time – over a year in total”. The fact asserted in the submissions, so stated, is not quite accurate and requires some modification. It is accurate to say that the website as a whole may have been on the internet for over a year in total but it is not accurate to understand from that statement that the offending words were on the website for the whole of that time that the website was on the internet. The domain name was obtained by [the defendant] on 10 June 2011 and she admitted in her defence that she uploaded and modified text on the website from about that date. The first words complained of, however, did not appear until August 2011. The website was removed on 15 November 2012 but the words particularised as defamatory had been removed in February 2012. Thus the website (and its irritating effect) may have been operative for “over a year in total” …[4]
The evidence of [the defendant], which I accept, is that on or about 23 February 2012 she received a folder … highlighting the words said to be defamatory and cross-referenced to the paragraphs in the statement of claim alleging the defamation. [The defendant] gave evidence that she immediately deleted the offending words from the Quarry Fight website upon receipt of the folder and the legal advice as soon as the offending words were identified. That account of the facts gives a somewhat different impression from the submission by Counsel that the website had been on the internet for over a year in total.[5]
Southall admitted that one of the principal purposes of the action was the removal of the entire website (in spite of having admitted that it was not defamatory). It is contended that he has tried to use this to get yet further unwarranted financial benefit for his clients and for himself, and to try to drag me down further than he already had. Truth appears to be a very capricious matter to him. The removal of the words he specified as having found offensive (although true) was one of the ruses by which he ultimately obtained his real primary objective – the removal of the entire website (th e others were by intimidation and bullying me). The awards of many hundreds of thousands of dollars in damages, interest and costs was the icing on the cake – and, having achieved his real goal, he replaced it with another – as revealed in the bill of costs served on me on 8 March 2017, where it said that Southall’s strategy was to “access [the defendant’s] assets”[6] – which he has certainly succeeded in doing.
It is clear from the above that the very core of Southall’s case against me was, at best, erroneously misleading and deceiving. By acting in that deceitful manner, in addition to being grossly grossly erroneous conduct, it is clearly an abuse of the court’s processes and reveals his contempt of court. Southall’s duplicitous actions caused a 7-day trial as well as appeals and actions undertaken against his clients under the CPA. Southall colluded, collaborated, and conspired with his clients and others to mislead and deceive the court and denigrate and harangue me – and amply succeeded, but at great risk to his integrity.
[1] Bill of costs served on 8 March 2017, item 318 under work performed and charged by Southall [emphasis mine]: “settle memorandum of advice re strategy generally for further conduct of litigation and access to [my] assets”
[2] “I would have thought that was – and I put to you that that was a direct consequence of what you were told at the mediation by me.”
[3] Reasons at [31] & [34]
[4] Judgment Reasons at [31].
[5] Judgment Reasons at [34].
[6] Item 318