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.
Southall settled or did the final settling of moist if not all the court documents and correspondence from 20 August 2011.
Southall drew and/or settled the 7 iterations[1] of his clients’ statements of claim[2], each carrying significant known grossly erroneous claims and/or denials.[3]
In great disregard to the truth, Southall advised who the plaintiffs to the claim were to be[4]. He also advised the inclusion of the additional grossly erroneous claims of injurious falsehood and misleading and deceptive conduct made by all three clients, a well as the grossly erroneous claims of defamation by each of the plaintiffs:
Mr Southall: Just on that same issue but you don’t need the letter, is it your recollection that with the assistance of Mr Smith, you and [the second plaintiff] attended upon myself and my junior soon thereafter[5] in terms of giving instructions for the purpose of proceedings to be issued?
The first plaintiff: We did, yes.
Because it would have required that they prove their grossly erroneous claims, after they had achieved their primary goal of having intimidated me into removing the entirety of my website from the internet, Southall later advised the removal of CASACIR and of all three plaintiffs’ claims for injurious falsehood and misleading and deceptive conduct.
Now, of course issues of proof in injurious falsehood as opposed to defamation are quite different. The onus is on the plaintiff to prove the falsehoods or to prove the facts underlying the falsehoods in the second cause of action. And, of course, the problems or the issues of proof in M and D conduct are different again but nevertheless involve an onus on the plaintiff to prove its case quite properly.
You are asking me why we withdrew those other Claims… Under legal opinion those other two cases were dropped because it would have incurred trying to prove that you had interrupted our business were other legal sides that we were – – – … For legal advice, we dropped those claims.
I felt the need that if you pay for a good Queen’s counsel and he gives you good advice and you don’t take it, then I think you are foolish. We took his advice.
It necessarily arises from advice given by and steps taken by his lawyers.
The first 5 iterations of their statements of claim, advised upon and settled by Southall, included many grossly erroneous and extraordinary claims and denials. Including, but certainly not limited to:
- The claims that CASACIR had been unable to procure a permit for office and weighbridge because of my previous website, when the true facts were that at the time of making the claims, CASACIR had had that permit in its possession for about 6 weeks at the time of making the claim. Obviously this was a claim that Southall would not have wanted to have heard before the court.
- The claims that CASACIR’s blasting was held up on 28 April 2011 because of me having flown over the site in a small aeroplane, when there were no less than 5 people still on the bench loading the holes, an excavator working close by, and other vehicles in close proximity. By so claiming, they were saying, as absolute and unequivocal fact, that Orica[6] would have blown up those people, as well as the other machinery and vehicles if I had not flown over at that time – clearly either Southall suggested and settled this knowingly fraudulent claim or I saved the lives of a number of people. Obviously this was also a claim that Southall would not have wanted heard before the court.
- The claims that my previous website had rendered the CASACIR company as basically worthless – in spite of it being acknowledged as a multi-million dollar company. Obviously this was also a claim that Southall would not have wanted heard before the court.
- The claims that my previous website had rendered the Neerim North land as basically worthless – in spite of it being acknowledged as containing some $165m in resources. In fact, the second plaintiff swore under oath that [emphasis mine]:
[S]uffice perhaps to say that our 288 acres with all that rock under it we paid $1.35 million for … and we had a lot of prime pastoral land.
[W]e paid $1.3 million for … most of which was good pasture and had beneath it a massive quantity of high grade basalt.
Obviously this was also a claim that Southall would not have wanted heard before the court.
A number of claims were made that the regulatory authorities had checked Southall’s clients’ sworn affidavits and testimony prior to such being given, filed or served. Clearly it was impossible for sworn testimony to be checked by anyone prior to it being given and, regardless, each of the regulatory authorities swore or affirmed that they had not checked the testimony or affidavits [emphasis mine]:
Me: When you were a party to the enforcement hearing, you would have received documentation from my side of things and from the other side of things; did you receive two affidavits from the other side? They were both from [the first plaintiff] on behalf of Casacir and himself and [the second plaintiff]?
Ms Bignell: I can’t say for sure because I didn’t necessarily see all the documents that were furnished because they went through our legal counsel.
Me: So there was no discussion with you about those documents by [the first plaintiff] or [the second plaintiff]?
Ms Bignell: No, there was no discussion. Even if I had seen them, there was no discussion. I have no recollection of that at all.
Me: What about with regard to [the first plaintiff]’s testimony, was there any discussion with you with regard to what was in it?
Ms Bignell: Not that I’m aware, not that I can recall.
Me: Did you ever see the two affidavits that [the first plaintiff] supplied to the enforcement hearing in 2010 regarding the enforcement of alleged breaches?
Mr Dunn: I don’t recall them, no.
Me: Were you ever consulted regarding the testimony that he was going to give?
Mr Dunn: No.
Me: There were two affidavits produced by [the first plaintiff] on behalf of he and [the second plaintiff] and Casacir for that hearing. Did you ever see those?
Mr McWhinney: I can’t recall seeing them, no.
Me: You can’t?
Mr McWhinney: No.
Me: So your advice wasn’t asked for regarding them?
Mr McWhinney: I can’t recall.
Me: Was there any discussion with you about what he would be testifying about?
Mr McWhinney: I can’t recall, I doubt it very much.
Proving that this was a yet further grossly erroneous misrepresentation.
A number of various other claims and denials that were similarly outrageous and downright grossly erroneous were made in spite of photos on the website proving the facts to the contrary (see the CASACIR pages for information on all its claims and denials).
In fact, even though removed, Southall continued to assert that the removed claims were true:
Simply because these claims were discontinued does not mean that they had no proper basis.
In great disregard for the truth, Southall made repeated and deliberate grossly erroneous assertions in relation to the number of iterations of the statement of claim. The bill of costs served on me on 8 March 2017 revealed that Southall had serious input into each and every one of the 7 iterations of their statement of claim, and each bore his name as having settled it. In relation to the multiple grossly erroneous claims by Southall that there were not the number of iterations served, their Honours of the 2016 Court of Appeal revealed the means by which they (and the other judges) had been deluded by Southall’s fraudulent submissions [emphasis mine]:
162 We will refer to an example which supports many of the above observations. In the course of the hearing of the defamation proceeding, senior counsel for the respondents said the following in relation to the number of versions of the statement of claim:
I should say your Honour, whilst [the defendant] has been talking about six pleadings — it’s nothing like six pleadings. There were some different dates on them which we’ve determined, but I think it’s three — more like three, perhaps four, but that’s a matter we can address in due course.
In fact, although the applicant was served with seven versions of the statement of claim, only four versions were filed, the original version and three amended versions. Viewed in this context, while the statement by the respondents’ senior counsel was imprecise, it could not amount to a breach of any overarching obligation.
In direct contradiction to Southall’s repeated grossly erroneous claim, their Honours acknowledged that I had been served with 7 iterations. However, they then went on to show how they were deceived: it is clear that their Honours were swayed by Southall repeatedly and grossly and erroneously twisting the facts – he had continued to refer to the number of statements of claim filed[7] because that was a much smaller number, while I was clearly claiming that I had been served with 7 iterations (and with the accumulated resulting costs). Southall deliberately and repeatedly aggravated the situation by his gross deception and by trying to reduce any costs that his clients might have to make because of the his own[8] and his clients, and the remainder of the team’s gross incompetence of having produced on average one iteration every 2.5 months[9] because they could not get their statement of claim right. It is also important to note that their Honours were very generous to Southall – this is made obvious by them having excused him by giving him the benefit of the doubt in spite of what was actually an active, concerted, and an obviously entirely successful effort to sway, deceive and mislead the court when he grossly and erroneously claimed [emphasis mine]:
…in addition, there’s an allegation there which we’ve denied, I should say, which is explained in Paragraph 30 of our submissions to this Court, which were ordered pursuant to the normal order which has not substance that there were not five or six iterations of the statement of claim, as is alleged.
I should say your Honour, whilst [the defendant] has been talking about six pleadings – it’s nothing like six pleadings. There were some different dates on them which we’ve determined, but I think it’s three – more like three, perhaps four, but that’s a matter we can address in due course.
But it was contained in the statement of claim. It was a claim in each and every statement of claim, in the original statement of claim in late 2011, and in the two subsequent amended versions of that statement of claim.
There is no substance to [my] complaints about the statements of claim and further and better particulars. There were three, not six, filed versions of the statement of claim.[10]
If the obfuscation of these clear and successful grossly erroneous denials had been seen more clearly earlier, it would have contributed to different judgments. Even Smith swore[11] to the existence and serving of each of the 7 iterations I had claimed I was served with, and Southall settled Smith’s affidavit! However, at no time did Southall ever correct the facts and admit that he had lied to and grossly misled the courts.
In great disregard for the truth, Southall drew and/or settled his clients’ answers to my request for further and better particulars, the answers containing a significant number of grossly erroneous claims and denials. Inter alia:
- Southall advised on and settled the document which made many claims and denials that he knew would not stand up to scrutiny before the courts and which were grossly erroneous, including, but certainly mot limited to: in relation to meetings that did not occur, conversations that did not take place, costs that had not been caused, inspections that had not taken place, devaluations that had not been caused, and impacts that had not happened, and so on.
- Southall knowingly made many grossly erroneous claims and denials in spite of photos on the website proving him wrong, and which were contained in the 309-page folder he later provided: proving the truth of the facts under publication, and the fact that his claims and denials were grossly erroneous.
Clearly there were many grossly erroneous claims within the documents that Southall advised on and settled – many so outrageous that they were preposterous and entirely unbelievable.
In great disregard for the truth, Southall drew and/or settled his clients’ affidavit of discovered documents each containing a significant number of grossly erroneous claims and denials. His subsequent claims that he was surprised by my production of some of those documents were grossly erroneous:
It comes as a complete surprise.
I’d indicated to the court that the matter was a surprise to me, I hadn’t known about it.
Those documents were put before the court by [the defendant] in cross – no, they weren’t put to him sorry. They were raised by [the defendant] on her feet in address immediately after lunch yesterday and we were taken by surprise.
This was grossly erroneous claimed in spite of two of the documents being in the affidavit of documents that Southall had personally advised upon and settled and had reviewed just days earlier. When forced to, he finally admitted to the reality of one, but continued to grossly and erroneously claim:
I think the exchange of emails. My junior’s looking. The document headed, “Shapher Pty Ltd” dated 16 March 2011 was in our discovery – that is, the letter that says, “The following was put by our barrister Mr Sadler to your client via Mr Peake, your client’s barrister, on 1 March 2011.” But the email from Robert Sadler to Graeme Peake and the chain of which it forms part, including Mr Peake’s reply, don’t seem to be in our discovery, your Honour.
I have got no explanation for it, your Honour. Can I say that my surprise was more motivated – or sprang from the fact of the late introduction of this. I didn’t know about – I certainly didn’t know about the exchange of emails, and I may have – I’m not sure what my recollection was about that Shapher letter, your Honour.
I’d indicated to the court that the matter was a surprise to me, I hadn’t known about it.
They were raised by [the defendant] on her feet in address immediately after lunch yesterday and we were taken by surprise.
The bill of costs served on me on 8 March 2017 clearly identifies this knowledge of the contents[12], and decisions about, the documents, commenced on at least 13 February 2013. In fact, on 3 April 2013, just days prior to his grossly erroneous misrepresentations, Southall claimed fees for “Review [his clients’] discovery and Affidavit of Documents” – proving that he knew exactly what was in his clients’ affidavit and should not have been surprised at all.
At first Pagone J was not convinced by Southall’s protestations:
I must say, if it does come as a complete surprise then I myself am completely surprised.
It disturbs me a little bit to find that, although it was in the discovery, when you saw it a few minutes ago it caused you some surprise.
His Honour: I’m a little bit stunned to discover that a barrister acting for your clients in the past and a solicitor previously acting and now continuing to act did not raise these matters with your client, and it doesn’t reflect well on somebody.
Mr Southall: I have got no explanation for it, your Honour. …
His Honour: Mr Southall, I can well understand that those instructing you would have given you the material upon which you then conducted the case. … The fact that those instructing you did not draw this to your attention with large highlighting is a matter of concern. The fact that, for the very kinds of reasons that you were putting to [the defendant] earlier on about why it was that she didn’t act upon something that had been put to her previously. But the fact that your client seems to have been unaware of it – I just must say at the moment that just sounds unlikely.
But Southall’s grossly erroneous act was so practised and proficient that he absolutely convinced Pagone J. Pagone J said as a result:
I’m not suggesting that you weren’t surprised, I’m suggesting on the contrary, that you were understandably surprised.
I’m accepting that you were surprised when you saw the letter – plainly you were.
Senior Counsel for the plaintiffs expressed surprise during the trial before me about the existence of these offers[13]
I have already discussed that Senior Counsel for the plaintiffs expressed surprise at the tender of the correspondence with occurred in February and March 2011 which had conveyed the offers by [the defendant]. Indeed, he first observed that the documents had not been discovered (by which I understood him to mean that they ought to have been discovered by [the defendant] rather than by the plaintiffs). 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[14].
The contents of the affidavit of documents discovered were largely (83%) about the offers for sale of my land, not about the purported defamation. Remembering that Pagone J went on to reject Southall’s grossly erroneous claims in relation to the offers for sale of the land:
I accept this evidence of what [the defendant] sought to do by and through the Quarry Fight website. As early as 16 August 2006 she had written to the plaintiffs indicating her firm determination to oppose the quarry with all of the resources she had available. Her opposition was to the quarry and its operation. The plaintiffs expressed some willingness to purchase the Shapher land and [the defendant] entertained that possibility albeit upon terms which were not agreed to. The bulk of the material from the Quarry Fight website tendered in evidence is consistent with [the defendant’s] oral testimony about her purpose in operating the website and the words expressed in it. In parts she used clearly inappropriate language but she was doing so in her expression of dissatisfaction and not with the intention of putting collateral pressure upon Casacir to acquire the Shapher land at an inflated price. Her purpose was, rather, to seek to ensure that the operation of the quarry complied with what she understood to be their obligations however irritating to regulators and to the quarry operators her chosen method may have been[15].
It is critical to note that each of the documents Southall claimed to know nothing about was in the care and control of his clients and instructors given that the bill of costs dated 8 March 2017 reveals[16] that they had received the documents from Peake, the barrister at VCAT [emphasis mine]:
[item] 181: 19/5/12 …in light of additional documents from G Peake’s files.
Thus we can see that Southall certainly knew about the documents and had meetings with Kaye two days later regarding them. The same bill of costs also reveals that the documents were sent to Southall and that he knew about them [emphasis mine]:
357: 16/1/13 Drawing and engrossing brief and memorandum to counsel to settle Affidavit of Documents
375: 6/2/13 Short letter to senior counsel forwarding copies of the Plaintiffs’ discovered documents (47 pages) and the Plaintiffs’ Affidavit of Documents (3 pages) to include in his brief
548: 10/4/13 Paid Mr Southall Southall Q.C.:
3 April 2013 – … Review plaintiff’s discovery and Affidavit of Documents.
I had already told Southall that at least one of the documents was in their affidavit of documents [emphasis mine]:
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 – – –
Document 25 of their affidavit of documents discovered (and advised upon by Southall) is an email from Peake to Sadler dated 30 September 2010, which was a very restrictive, unreasonable and unrealistic offer, and which was entirely ignored by Southall, the plaintiffs and the rest of the team. As I have identified elsewhere, Southall, in his cross-examination, did not want to hear about any correspondence between the time of the mediations and the commencement of the website. And the next document, number 26, was an email from Sadler to Peake with the continued discussions between the barristers. This email was clearly marked as being sent by Peake to his instructors, yet Southall fraudulently maintained that he knew nothing of it and that his clients certainly knew nothing of it – regardless that (1) this document was in their possession, and (2) that Southall had advised upon the affidavit himself and (3) had personally checked the documents just days earlier. The document in the affidavit of documents that Southall advised upon but ignored was headed:
Fwd to JK, DC & KS for instrs. 14.2.11[17]
The affidavit of discovered documents was sworn on oath by both the plaintiffs (man X and man Y) [emphasis mine]:
Affidavit of [the plaintiffs] sworn
We, [the plaintiffs]… jointly and severally make oath and say:
1. We are the abovenamed Plaintiffs.
2. We have in our possession, custody or power, the documents relating to the questions in this proceeding enumerated in Schedule 1.
First Schedule …
22. Email from Graeme Peake, as Counsel for Casacir Pty Ltd, to Robert Sadler, dated 27 August 2010, regarding the sale of 140 Pearce Road, Neerim North.
23. Email from Robert Sadler to Graeme Peake, dated 23 September 2010, regarding the offer of Shapher Pty Ltd to sell 140 Pearce Road, Neerim North, to Casacir Pty Ltd.
24. Email from Robert Sadler to Graeme Peake dated 30 September 2010, regarding the sale of 140 Pearce Road, Neerim North.
25. Email from Graeme Peake to Robert Sadler, dated 30 September 2010, regarding the sale of 140 Pearce Road, Neerim North.
26. Email from Robert Sadler to Graeme Peake, dated 14 February 2011, regarding the offer of Shapher Pty Ltd to sell 140 Pearce Road, Neerim North, to Casacir Pty Ltd.
27. Letter from the defendant, on behalf of Shapher Pty ltd, to Ken Smith & Associates, dated 16 march 2011, regarding the offer of Shapher Pty Ltd to sell 140 Pearce Road, Neerim North, to Casacir Pty Ltd
Based on the fact that their affidavit of documents revealed not only 2 of the documents that I revealed and entered into evidence as part of Exhibit 2, but that it also contained a further and additional 4 pieces of correspondence between Mr Peake and Dr Sadler[18] that Southall did not want exposed to the Court, I consider this to be extraordinarily duplicitous behaviour – particularly since it was a major grossly erroneous claim. Because Pagone J had every right to expect that Southall would be honest, he believed Southall’s blatant and deliberate lies.
Thus, Southall swayed his Honour by his grossly erroneous conduct. If Pagone J had known the truth it would have had the reverse outcome and Pagone J would have looked further into the matter and taken action.
In further great disregard for the truth, Southall advised on and/or settled his clients’ notice to admit containing a significant number of grossly erroneous claims and denials.
- Southall settled this notice to admit and therefore knew the documents within that notice[19]. His choice to include any of those documents was to choose documents that were entirely unrelated to what the case was supposed to be about, namely their claims for purported defamation – this was most likely because he was without any true proof of the claims he made on behalf of his clients regarding defamation. Instead, 9 of the 11 documents related to the issue of the offers of the land for sale.
- In the notice to admit, the other 2 documents were:
- the excerpt from the website revealing how [the second plaintiff] does not value his reputation because it showed the deplorable work done on the Neerim North Road by his company – thereby strongly indicating that he lied under oath in in writing and that Southall had advised on and settled documents with grossly erroneous content; and
- the letter of 19 August 2011 which contained considerably grossly erroneous claims and denials, and which Southall then went on to use in a deplorable manner.
Causing significant surprise[20], even though the letter from Marshall and Dent was not in their notice to admit, Southall used it as evidence even though it had absolutely nothing to do with the claims defamation and was a letter that unequivocally proved that [the second plaintiff] did not care about his reputation[21], and Southall himself admitted that:
It’s basically a letter of demand from Marshalls and Dent lawyers to [the second plaintiff] and it’s on behalf of a Mrs Caroline Duvoisin who is a person who engaged [the second plaintiff], one of [the second plaintiff]’s companies to lay an asphalt driveway at her home in Chirnside Park, Victoria. I’m not going to refer to it in detail, Your Honour can certainly do so, but they are pretty robust complaints about lack of competence and due care and skill in the laying of this road and then the demand on the bottom of page 2 about what the client wants.
It’s a letter from Marshalls & Dent Lawyers to the Stabilime Group of companies, … It contains some bitter statements about the quality of some driveway works that had been carried out.
Southall settled documents that contained knowingly grossly erroneous material without qualm or concern, and allowed them to be filed with the court.
[1] And at least 11 drafts
[2] Extraordinarily, on average one full iteration filed and/or served every 2.5 months (not including drafts)
[3] ASC Rules 19.1, 19.2, 21.2, 21.2.1, 21.2.2, 21.2.3, 21.3.1, 21.3.2, 21.3.3 & 21.3.4 and Vic Bar Rules 32, 34 & 42.
[4] The acronym chosen by the directors of the company – the name being Crush Any Shit And Call It Rock.
[5] After the letter from KSA to me dated 19 August 2011
[6] their blasting company
[7] Although he did not admit that it was the number filed that he was referring to
[8] Southall settled each of the 7 iterations and knew full well how many there were – he charged for his work on them.
[9] Not including the draft iterations
[10] The defendants’ submissions to their appeal at paragraph [30], and they identified those filed claims in their footnote 73 as being: Statements of claim dated 29 November 2011, 2 March 2012 and 2 April 2013 – i.e. purposefully identifying only 3 iterations out of the 7.
[11] His affidavit dated 12 June 2015
[12] Items 393, 474
[13] Judgment of Pagone J dated 23 May 2013, Reasons at [51]
[14] Ibid, Reasons at [54]
[15] Judgment Reasons at [56]
[16] Kaye’s paid fees
[17] “JK” is likely to be Kraan, “DC” is most probably the plaintiffs, and “KS” most likely being Smith of KSA
[18] Documents 22 to 25
[19] The bill of costs served on me on 8 March 2017 at item 393 (on 13 February and 20 February 2013), identifies Southall’s significant input, advice and settling of that document
[20] Which did not allow me the opportunity to prepare for its inclusion in the case.
[21] He promised his neighbour a driveway of the same quality as his own, but she had to take legal action because it cracked and he would not even answer her when she contacted him