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.
This was a case where Southall was defending CASACIR in 2012 against an appeal on a judgment of costs having been granted to his clients based on them winning the VCAT enforcement hearing.
I found it appalling that Southall addressed the court by providing much information that went beyond points of law, knowing that we couldn’t do likewise because we are limited to what is legally allowed. Obviously he did this to try to sway the judge who had to listen to everything Southall said and trust it as being true and factual. I can only imagine how Southall would have jumped in on my side if we had tried to do what he did! This was my first case against him and it revealed that he had the attitude of do as I say and not as I do.
Southall jumped in to represent about council’s costs, yet declared that he was not acting for them. If council’s costs had no relation to his case, then he should have let council’s issues alone since they did not want to represent themselves; and since he felt a need to jump to their defence, he was indeed representing council. He did it a number of times over the two-day hearing – no wonder they did not consider that they had to come and fight their own fight. This was yet more proof that there was a relationship between council and CASACIR – so why should we be surprised that council was bending over backwards to assist CASACIR and not rock the boat about the multitude of breaches – resulting in this very appeal.
I wonder how Southall would have coped without Roslyn Kaye (“Kaye”), the junior barrister (who was basically acting as a clerk), doing his fetching and finding things for him – while the instructing solicitor, Ken Smith (“Smith”) just sat there. I wonder how Kaye felt about her “clerk” role when she was actually the one doing most of the work.
Southall told Emerton J that she had to take in consideration “all relevant evidence”, yet CASACIR, itself, denied “all relevant evidence” in the enforcement hearing and on other occasions. I was accused alternatively of having a weak case but of having too much information. I was accused alternatively of being on a “fact finding” and “fishing” mission and yet of not having researched enough. I was accused of making “threats” by saying that we would be forced to take action to protect our legislated rights.
In desperation, Southall even went so far as to go back to repealed legislation (the Administrative Appeals Tribunal Act 1984) that was no longer existent (it was repealed on 1 July 1998 – repealed at least 14 years before Southall brought it into the court as being relevant) because the tribunal mechanism before VCAT was absorbed into VCAT and new legislation applied).
In great disregard for the truth, Southall made deliberately fraudulent submissions before Emerton J:
Southall had previously, deliberately and fraudulently, submitted to the court and the Honourable Justice Emerton[1], as absolute and unequivocal fact, that I had had to be physically and specifically removed from the quarry land by the police and that it had happened on multiple occasions. This was a deliberate misquote set to give a bad impression of me and to sway the judge (which succeeded) [emphasis mine]
[The defendant’s] conduct generally vis-à-vis the Casacir quarry we say, and particularly as described by VCAT in Paragraph 32 of its reasons, in the actual enforcement proceeding, again … which recite occasions on which the police were called in to remove [the defendant] from the Casacir quarry premises. [2]
This is an entirely fraudulent claim on at least three fronts, because:
- at no time was I ever removed by anyone from the quarry land[3] and certainly not on multiple occasions;
- at no time was I even asked by anyone to leave the quarry land;
- nowhere in the VCAT reasons, especially those quoted by Southall[4], did it say that the police had had to remove me from the quarry premises[5]; and
- Southall knew that what he proclaimed as unassailable truth was fraudulent and an outright lie, yet he deliberately chose to make this completely fraudulent claim in order to mislead and deceive the court, and by doing so, gained in excess of $100,000 in costs for the VCAT proceedings and the appeal.
The first plaintiff, although he tried to evade the question, nonetheless had to give testimony that proved that Southall had lied to the court in relation to Southall’s fraudulent submissions.
Me: Mr Southall, …told the court, not this court the costs court, that I had been removed from the Casacir property by the police, is that true? … I wasn’t actually removed from the Casacir land.
First plaintiff: It was the access road between our land, yes.
Me: It’s a public road?
First plaintiff: Yes.
In spite of the first plaintiff’s prevarications, it was clear that Southall had thus exhibited that he was clearly prepared to, and had (1) twisted matters to suit his own and his clients’ agenda and (2) was willing to give fraudulent and grossly misleading submissions to the court as absolute fact – in fact, Southall was paid $40,875.00 for his conduct in front of Emerton J. This conduct was part of the reason that I contend that much of Southall’s submissions in the defamation case and beyond were of similar ilk and should have be treated with more than just suspicion – it was fraudulent, and they were lies. On a side note, as seen above, the first plaintiff tried to protect Southall and thereby agreed with, collaborated with, and gave his approval to, Southall’s fraudulent submissions – even so, it was Southall’s own responsibility to tell the truth and be honest and he again chose not to do so.
Southall used such fraudulent claims about us as having been “advancing [our] economic interests”, being “in competition” with CASACIR, and trying to obtain “commercial advantage”.
He did admit that I:
[had] never [been] heard … on this so there’s no evidence in that regard.
But he then went on to brush off that fact and lump me in the same boat regardless by claiming that
Now we would say that that really does replicate this sort of case where you’ve go the hybrid situation of – and it’s clearly – the evidence is clearly before you and before Mr – more importantly before Mr Byard, that she was not only a concerned resident, as she puts it, but in terms of the element of, if not competition, advancing her economic interests.
He went on to fraudulently claim that
…clearly commercial advantage was the primary factor [for us having taken action] and the other aspects were, if you like, incidental.
There are a number of issues here:
(1) It must be determined from his comments and claims that he clearly believed that the excessive noise, the loss of air quality, the loss of safety, the loss of water, the polluted drainage being discharged into Kookaburra Creek and through our land, the loss of the ability to operate our farm, the visual impacts, the road failures, etc are all “other aspects” and are only “incidental”! I believe that if he owned our property and had to cope with what we had to, he would have a very different attitude and would probably bend over backwards to do what he could to remedy the situation and get his rights back. I do not believe for an instant that he would just relax back and say “oh, well, too bad for me”.
(2) Ours was a small company that ran a small beef operation until the advent of the quarry when it (for example) unlawfully and in an unauthorised manner: took our water from us, discharged polluted drainage into Kookaburra Creek and through our property, significantly detrimentally impacted the peace and amenity, the visual amenity and the air quality, etc. This was against a multi-million dollar company running a number of quarries and allied industries!
(3) We simply offered the property for sale to CASACIR based on its own suggestion that it would buy anyone’s property that did not want to have the quarry nearby (but when offered our property, CASACIR was very clear that it “would rather fight” us – its words, not mine).
(4) The sale price sought was based on the compensation clauses of the Mineral Resource (Sustainable Development) Act 1990 (MRSDA).
(5) In spite of CASACIR’s failure to want to buy the property we continued to offer it to so that we could move away and not have to fight for our legal rights that it had tried to remove from us without the legal authority to do so.
(6) We had even reduced the offer a number of times when alternative similar properties came on the market.
For Southall to make claims that we were trying to get the upper hand on a multi-million dollar company was, to say the least, extremely ludicrous and bizarre!
In addition, here was Southall fighting madly to get us to pay for CASACIR having breached their permit, work authority and legislation, and trying for as much money as he could get out of us. And CASACIR was still continuing to deny us the ability to operate our farm, and fully intended to continue to do so based on their own documentation and the impacts already sustained.
As seen, Southall gave a comparison between our situation:
- a small farm simply trying to get back some of the benefits it had had for over 7 years before CASACIR took them away, and the fact that we offered the property to his clients for sale in accordance with the MRSDA compensation clauses, against
- a multi-million dollar quarry that, in a number of regards, did not comply with its planning permit, its work authority, its work plan, the planning scheme and/or other legislation),
and he compared out situation against a situation where there were two neighbours who were both attempting subdivisions and where one objected simply as a neighbour to the other’s plans! And Southall obviously thinks that is equivalent or comparative! I still could not believe him: what commercial advantage? Us offering to sell our property to CASACIR – our little farm against one of the big boys? I bet he would not consider any offer he made in that situation was for an ulterior motive, or that any notification of a temporary reduction in price (i.e. that the price would go back to what it was or would increase in line with property price rises) to be threatening. Further, Southall also seemed to believe that to use the compensation clauses under the MRSDA was inappropriate and smacked of ulterior motive – that is a very strange attitude because those who created the law seem to believe that they were appropriate, including the 10% solatium! But then again, it is a very different prospect when you are being paid huge amounts to say what would get your mega-rich clients even more money from poor chumps who had naively believed that they could take action to simply protect their rights.
Southall later claimed that:
- to have reduced the offered price for our property for a time and then to say that the time for the reduction was up on a certain day,
- that then the price would go back up to what it was, and
- that they had left us no alternative but to fight for our rights,
was a “written threat”. So, taking him at his word, Southall deems that it is making threats to tell someone that they were placing us in the position of having to fight for our rights and it is not acceptable to lower the price and inform them that it would go up again on a certain date!
Southall spent a considerable amount of time discussing whether the Court had an original or a copy of Ken Smith’s affidavit – who cares? The Judge didn’t, yet Southall took many minutes discussing it regardless.
Southall implied to that the application for restitution of the water (when CASACIR illegally and in an unauthorised manner, diverted it so that it no longer flowed into and through our property) was not an appropriate application (even though he had not been acting in that case) and contributed to what he called being “vexatious”. How outrageous, but then again shows the attitude that we had been fighting and why they thought nothing of taking the water and the fact that they further and permanently intend to.
Further, they agreed with Byard that 200+ pages of FOI results and photos of the real situation is lacking in sufficient research – this was a claim made in spite of CASACIR having provided next to nothing!
Southall claimed that, because we did not object to the enforcement order and the joinder, that we did not care and therefore proved that we were vexatious. However, if we had taken action, they would have used that to say that we would do anything to stop the quarry! Damned if you don’t and damned if you do!
He tried to say that I didn’t have legal representation and acted out of (what is implied to be) vexatious behaviour in the first two hearings. In my opinion, he either has no idea of what really was the truth, has been fed rubbish, or is just trying to get costs for his client without much if any regard to the truth, especially given that I had had legal representation all the way through to that time..
Another of the many claims that are “inaccurate”, is their claim that we were trying to force CASACIR to sell their land to us, and we have never even discussed such an option with them let alone tried to force such any such sale/purchase!
He pointed out that we had produced a significant amount of material and quoted Byard’s Order noting that it was “encyclopaedic” yet also says that the case was untenable in fact or law, regardless of all the proof, regardless of the fact that both DPI and council have since stated that there were a number of breaches, and regardless of the fact that CASACIR were still in significant breach of their planning permit, their work authority and legislation including the planning scheme!
I found Southall’s claim that for the judge to find that we had not acted vexatiously would be “beyond rationality”, excessively controlling. It is also very demeaning to the Judge if she had chosen to make a contrary decision to Southall’s instructions!
Be very careful when talking to Southall (or anyone else where what you say could be used in a case, because if you say “yes” or “right” to merely indicate that you have heard and understood what was said by another, it could well be used against you as he has used it against us!
Further, from what he says, a case must be brought by a company and not a person in order to not have costs against the person him or herself! I’d like to see a company be able to bring action without a person being the spokesperson, signature, giving testimony etc! In addition, my husband and I have been dragged in by the actions of CASACIR taking a joinder action against us.
Southall accused us of having “clearly and disingenuously” tried to avoid costs, and, in fact, of having tried to do “anything” to avoid them. Fact is, I was the spokesperson and signatory because, unlike Southall suggests, we could not find a way to do it other than having a human do it. I signed the applications and was the spokesperson for our company, in an effort to have the amenity that we, as employees, had enjoyed for 7 years before the advent of the quarry destroyed it all by: the frequent and significant emissions of dust (which eventually resulted in a s110 Notice and the threat of a stop work order by DPI subsequent to the hearing), the frequent over the limit noise (including, but certainly not limited to, the use of the unsilenced drill for months, the unlined haul trucks, the blasting, the noise during the creation of the bunds, the machinery and equipment that were used without the required broadband beepers, etc), the loss of visual amenity, the loss of the flow of Kookaburra Creek (by unlawful and unauthorised works and which flow was only reluctantly and very belatedly restored under Agreement at the tribunal and threat of further legal action), the loss of quality of the flow of Kookaburra Creek and its tributary (because of the discharge of drainage from the site), and, and, and.
One other thing to remember is that (apparently – according to hearsay gossip – I have no knowledge fo the truth or otherwise of this) Southall was a fellow member at the tribunal with Byard – therefore, if that is the case, it would be no surprise that he would want to say what he can to uphold Byard’s decision.
The issue of Southall grossly and erroneously claiming to Emerton J that I had had to be removed from the CASACIR land is retold on a different page.
Desperate times call for desperate measures I guess, especially since I believe that he was also trying to set things up for the other case – which I believe was the intent (and I am allowed my opinion).
[1] The appeal of VCAT enforcement costs
[2] Note: I only went to the site office and, finding no-one there, went to look for the manager to ask about the works they had unlawfully performed on our waterway, and I did take photos while looking for him.
[3] On one occasion I was asked to move from a position on a public road that was deemed to be too close to the blasting (this road also led to our property).
[4] Or anywhere else in the reasons.
[5] I had been asked to move from where I was on the public roadway when the blasting was immanent.