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.
The following is just one of the ways they misled and deceived the court:
In great and contumelious disregard for my rights and the truth, Southall repeatedly cross-examined me so as to induce a false belief in the mind of the court that facts were very different to reality.
Southall grossly and erroneously accused me of trying to intimidate his clients when he knew that it was not true. In fact, he spent 53% of the time cross-examining me repeatedly going over and over the issue of the offers for sale of my property, repeatedly cross-examining me so as to grossly and erroneously induce a belief in the minds of the court that I had tried to intimidate or force his clients to buy the land.
Southall made the following fraudulent claims during his cross-examination of me:
Southall: There was nothing in terrorem by saying that? Do you know what I mean by saying in terrorem?
Me: No, I don’t.
Southall: There was nothing by way of trying to intimidate them or to force them to buy by putting that?
Me: Absolutely not.
Southall: 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…
Southall: That was a clear intimidation, isn’t it?
There were no attempts by me to intimidate Southall’s clients into buying the land. I and my related parties had been anxious and fearful because of all the obvious lies in CASACIR’s original application for the quarry, and we were made further anxious and fearful by CASACIR’s severe lack of compliance with legislation, permit conditions and work authority conditions, as well a their lack of care about neighbours’ pre-existing legislated rights once they had their permit (proving or initial fears were well founded). I and my related parties just wanted to be out of there so that we could buy elsewhere, but we needed a fair price in order to be in a financial position to move.
If CASACIR had not lied, had complied with their legal requirements, and if they had been reasonable and honest, then I and my related parties would not have been placed in the untenable position we had been placed in. This included by CASACIR having illegally diverted the flow of Kookaburra Creek so that it no longer ran into and through my related party’s land – and then CASACIR refused to reinstate the flow until legal action was taken against them, and yet further legal action threatened[1]. Southall used this anxiety and fear against me (as had Graeme Peake[2] (“Peake”) in the VCAT proceedings before Southall was involved). Pagone J confirmed in his findings that I had not acted with lack of good faith or with anterior or ulterior motives, or unjustified or unreasonable conduct:
I do not think the website, or specifically the … words published on it, show a lack of good faith, the existence of a collateral or anterior purpose of exacting an inflated price for the Shapher property, or constitute unjustified or unreasonable conduct …[3].
The revelation of correspondence between two barristers[4] (previously hidden by Southall and his clients) showed that there was no case for me to answer, yet Southall had knowingly continued to interject it into over half of his cross-examination of me. Pagone J said:
[54] No criticism of Counsel is intended, but 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.
Southall himself later noted that they were no longer relying upon that issue before the Court of Appeal:
[Y]ou may have read in the judgment there was considerable reference by His Honour to the negotiations over certain land. That point is no longer relied upon.
In fact, their Honours of the Court of Appeal noted:
The judge’s finding that [the defendant] was not motivated by a collateral purpose is unchallenged on this appeal.[5]
Southall’s continued intrusion of the matters relating to the offers of sale of the Shapher land during cross-examination resulted in Pagone J having to expend (waste) some 38% of the Reasons in his judgment on that subject.
Southall further repeatedly used correspondence, documents and conversations in his cross-examination of me so as to falsely induce a belief in the mind of the court that things were contrary to the facts, and he often did so in a belittling, insulting or otherwise inappropriate manner[6].
Southall introduced correspondence that was “in confidence” and/or “without prejudice” without discussion with, and/or permission from, me. Such correspondence originated in response to CASACIR’s public 2005 statement that if anyone did not want to retain their property near the quarry that it would buy their properties for a proper valuation that ignored the quarry and its impacts. Therefore, my offers for sale were sent to simply to see if Southall’s clients were interested in buying my related party’s land so that I and my related parties did not have to waste time and energy in fighting the quarry and Southall’s clients because of their severe and on-going lack of compliance – but taking CASACIR at its word was used against me.
Southall repeatedly introduced the correspondence dated respectively 26 July and 26 August 2010 so as to grossly and erroneously induce the belief that they were separate letters and that they each, separately, put pressure on his clients so as to force them to buy the property that I was offering for sale. Cross-examination and discussions occurred about the two letters:
Mr Southall: Then go to No.7 in that bundle in exhibit A. Is that a letter from you this time personally, signed by you to Mr Ken Smith dated 26 July 2010?
Me: Yes.
Mr Southall: Then yet again one month later on 26 August 2010 is letter number exhibit 8. Again that’s a letter from you to Mr Smith this time – in fact both to Mr Smith. What was the purpose of sending those two almost identical letters a month apart?
Me: Actually, they weren’t a month apart at all. They’re dated a month apart but if you actually have a look at the top of No.8, it says the fax date is 26 July. I’d actually put the wrong date on it and I resent the letter with the correct date. So both off them – – –
Mr Southall: The one at No.7, the fax’s dated 19 August 2010?
Me: Well, I don’t know, but I sent the first letter dated August in July, and then I corrected – when I realised I corrected it and said I sent it with the wrong date on it. So they are actually the same letter.
Mr Southall: I see the contents appear to be the same?
Me: They’re identical apart from the date.
Mr Southall: I’m just curious as to how on number No.7 the fax date is 19 August, and on number 8 the fax date is 26 July. Should they perhaps be turned around in order?
Me: No. I would have sent a covering letter, which I haven’t got with me, to say it was the wrong date. It was a correction. There’s not two letters; it’s one letter with two different dates.
His Honour: Mr Southall, should you possibly provide the first page that was faxed?
Mr Southall: I haven’t got it, your Honour.
His Honour: You will see that document No.7 says “page 02”, the next page is “03”. I’m concerned.
Southall knew that the contentions he put to me in cross-examination were fraudulent. He knew this because:
- Document 20 of his clients’ affidavit of documents discovered, and document 7 of Southall’s clients’ notice to admit, settled by Southall himself, was a letter dated 26 July 2010. It shows at the top that it was faxed to KSA[7] on 19 August 2010 (sent as a corrected version of the letter that was inadvertently dated 26 August 2010); yet was knowingly and fraudulently used by Southall in cross-examination to say that it was an additional letter that was purportedly putting pressure on his clients to buy the land. Under cross-examination it was proved to that this letter was a letter simply correcting the date. In spite of this, Southall still continued to use it during his submissions to say that it was an additional letter; and
- Document 21 of the affidavit of documents discovered, and document 8 of Southall’s clients’ notice to admit, settled by Southall himself, is the letter dated 26 August 2010 that shows on the top that it was faxed on 26 July 2010, and proving that the letters of 26 July and 26 August were the same letter, but with one having the date corrected. However, as stated, Southall continued to knowingly fraudulently use both letters in cross-examination, and in later submissions and addresses, to convince the court that they were separate attempts to pressure the sale of the land.
In spite of the facts put before him by me, and in spite of his apparent agreement with my stance, Pagone J was notably swayed by Southall’s fraudulent misrepresentations about the 2 letters:
On 26 July 2010 and 26 August 2010, the Defendant wrote and asked the Plaintiffs to buy the Shapher land for $1,201,684[8].
Southall repeatedly and fraudulently introduced the Pilgrim and Butt appraisal into the cross-examination. He brought it in as having been initiated by me when it was not and he knew as fact that it was not:
Mr Southall: Can I take you to document 9. Do you see that?
Mr: Yes.
Mr Southall: Is that a Pilgrim & Butt Real Estate longhand letter with an annexed valuation?
Me: Estimation, yes. It’s not a valuation, it’s an estimation.
Mr Southall: “Opinion for current estimated selling price of real estate.” Does that have a date on it on the second folio of the estimation a date of 14 February 2007?
Me: That’s correct.
Mr Southall: Pilgrim & Butt, are they valuers or estimators or land valuers known to you?
Me: No. Well, only in the fact that we received this saying that the plaintiffs had asked, could they have Pilgrim & Butt come on to our property and they asked our permission.
Mr Southall: I see?
Me: So that’s the only, known to us, aspect.
Mr Southall: They’re certainly local estate agents and valuers aren’t they, in Warrigal, aren’t they?
Me: They’re estate agents. I don’t know if they’re valuers.
Mr Southall: You see the frontis piece of document 9 is in longhand signed by Mr Phillips, Geoff Phillips?
Me: That’s correct.
Mr Southall: It’s addressed to, “Dear Ginnie and John”?
Me: That’s correct.
Mr Southall: Does that refer to you, do you believe, to your husband and yourself?
Me: That’s correct.
Mr Southall: Mr Phillips says, “My estimation is based on recent sales in Neerim North and Allambee”?
Me: Yes.
The affidavit of documents discovered, settled by Southall himself, reveals that the email section of the correspondence relating to the Pilgrim & Butt appraisal dated 11 February 2007 states at the top:
Att: Jeff. As discussed, please see vendor’s permission for the appraisal at 140 Pearce Road Neerim Nth. Cheers Julie McGarry PH: 5633 1800.
Jeff was the Mr Phillips referred to by Southall in cross-examination, and Julie McGarry was (is?) the office manager at CASACIR – proving that not only was the appraisal organised by Southall’s own clients and not by me, but that Southall knew it – especially given that it was identified[9] that just days before the trial commenced, Southall reviewed all of his clients’ documentary evidence. So seemingly determined was Southall to deceive and mislead Pagone J that, in spite of all the proof that it was his clients who organised the Pilgrim & Butt appraisal, Southall still continued to try to cast doubt on my credibility:
Mr Southall: Valuation by Pilgrim & Butt provided to [the defendant and her husband] with a note saying, “Dear Ginnie and John”, with a note from local valuers, I think Warrigal based, of $310,000-$325,000.
His Honour: I think the evidence was that that had not been sought by them. I think the evidence was that it had been your client.
Mr Southall: Yes, that may have been the case. May have been nominated.
His Honour: Not “may have been”. The only evidence about that valuer was that your client had arranged for somebody to come along, and this chap turned up, and then sent this email or this fax to them.
Mr Southall: I can’t recall, I’m not sure where that evidence came from, it may have been [the defendant].
His Honour: It did come from [the defendant] – that’s the only evidence about it.
Mr Southall: I don’t think she put that to my clients.
His Honour: I think it was in response to questions that you had asked perhaps. In any event, why would there be a need to put it to your clients?
Mr Southall: To give them an opportunity to respond.
His Honour: To respond to what?
Mr Southall: To an allegation that it was they who retained Pilgrim & Butt.
His Honour: Let’s put it differently. You didn’t seek to cross-examine her about the evidence that she gave, that it was your client that had produced – – –
Mr Southall: That’s true. I accept that. So what your Honour says would have to be accepted.
In blatant and contumelious disregard for my rights and the truth and a fair trial, Southall not only made the letter dated 19 August 2011[10] a focal point in the proceedings, he repeatedly cross-examined me so as to falsely induce a incorrect belief that facts were different to reality when he gave deliberate grossly erroneous impressions when cross-examining me on the letter. Throughout the trial and subsequent appeal, Southall kept referring to this grossly inaccurate letter as being both factual and truthful and he also proved that he was fully aware of the contents. A more full disclosure about that letter is contained within the separate pages relating to the letter.
Southall repeatedly used hearsay in the trial but refused to listen to my answer when asked a specific question by him – an answer he did not want to hear and certainly did not want the court to hear. Southall had actively assisted both his clients to use hearsay. In direct contrast to that, even though I was talking about documents that were in Southall’s clients’ own affidavit of documents to be discovered (settled by Southall himself), Southall refused to allow me to continue [emphasis mine]:
Mr Southall: After the letter from you to Ken Smith dated 26 August 2010 there was no further correspondence relating to the sale and purchase of the property, was there?
Me: Yes, there actually was.
Mr Southall: There was. Can you00 identify it?
Me: Well, it’s actually in your affidavit of documents I believe, it’s listed. Our barrister at the point in time, Dr Robert Sadler, was apparently having conversations with Graeme Peake who was the plaintiff’s – – –
Mr Southall: We don’t want to hear hearsay conversations. I was asking you whether there was any correspondence between you and Casacir or between you and the plaintiffs concerning the buying and selling of the land?
Me: I don’t believe so.
Mr Southall: That’s the answer I wanted.
That certainly was the answer he wanted – he did not want to have revealed the correspondence that destroyed his clients’ claims for aggravated damages – correspondence that he knew they had in their possession[11] – but he was not prepared to allow what he called hearsay in that context (which, in that context was not hearsay). In addition, he deliberately changed his question so as to ensure the answer misled the court into believing facts that were not, and could not be, substantiated: i.e. that there was no additional communication when he knew full well there was.
Although I had done nothing to deserve his vitriolic outpourings, Southall repeatedly cross-examined me with particularly hostile and venomous verbal attacks and decided to go to whatever lengths he needed to in order to unwarrantedly disparage and denigrate me to the court. Without any proof of such claims, Southall fraudulently called me a liar before the court, and he did so as absolute and unequivocal fact:
- In relation to me not being a legally trained person [emphasis mine]:
Me: Well, I am only a novice.
Mr Southall: That’s your assertion.[12]
- In relation to a document that I had not discovered[13]:
Are you being honest in giving that answer? … I’d suggest that you are telling an untruth.
These fraudulent claims were made in the face of the fact that he knew that I had indeed sent that fax. He knew because it is in his clients’ later bill of costs served on me on 8 March 2017 at item 5, and because he told the mediator about it, as fact. Further, Southall knew that his clients and instructor had it in their possession, yet failed to disclose the document and therefore concealed it.
Southall admitted that the action had far more reaching purposes than defamation when he asked me in cross-examination:
…so you just thought it was about defamation?
It was really about obtaining an award for damages, interest, costs for his clients, significant fees for himself, and gaining access to my assets [emphasis mine]:
Discuss and settle memorandum of advice re strategy generally for further conduct of litigation and access to [my] assets[14]
Because their primary goal of having the entire website removed had already been attained previously, he used grossly erroneous misrepresentations and intimidation to achieve his admitted further goal.
Southall repeatedly cross-examined me using various nasty, false, belittling, humiliating, offensive, annoying, intimidating, oppressive and insulting tactics. He used repetitive tactics and effectively, without justification, called me a liar a number of times without reason. Further, his questions were misleading and confusing at times, in breach of the law that governs his conduct.
For further details, see the relevant pages.
[1] At which time they signed a binding terms of settlement agreement and refused to comply with it.
[2] Southall’s clients’ previous barrister
[3] Judgment, Reasons at [55]
[4] Peake (Southall’s clients’ then barrister) and Robert Sadler (my and my parties’ then barrister)
[5] Judgment, Reasons at [11]
[6] This was in blatant disregard for Vic Bar Rules 38(a), (b) and (c) & 41; ASC Rules 34, 34.1, 34.1.1, 34.1.3; and EA s41(3)(a), (b) & (c).
[7] Ken Smith & Associates: Southall’s instructors and his clients’ legal firm
[8] Judgment, Reasons at [37]
[9] Bill of costs dated 8 March 2017 at item 513.
[10] From his client’s solicitor, of KSA to me.
[11] He had settled the affidavit of documents that contained some of those letters, and he also had access to the file of the barrister who wrote and/or received that correspondence.
[12] Southall was clearly implying that I had more experience in legal matters than I actually had
[13] And that Southall’s team had not discovered, but certainly existed
[14] An excerpt from the bill of costs dated March 2017, at item 318, taken from Southall’s fee slip