Support of false testimony

Whilst there is no evidence that Southall actually gave instructions to anyone to lie under oath, he clearly evidenced that falsely sworn testimony was not of concern to him and that it should not be of concern to the court. Further, Southall not only failed to notify the court of falsely sworn testimony, he actually abetted the giving of that falsely sworn testimony[1] in spite of having confirmed his own knowledge that perjury was a crime [emphasis mine]:

You’re not suggesting that giving false evidence on oath is a little crime, are you?

So you were emphasising “proving” that he had committed the criminal offence of perjury at the tribunal

So you imported from one that it proved that he had committed the criminal offence of perjury at the tribunal?

perjured evidence being given at the tribunal is a serious matter. Yes, we agree it would be a criminal offence

Southall clearly and repeatedly identified that he knew to lie under oath was a crime, and thus he had the responsibility to inform his clients and his clients’ witnesses that to lie under oath was perjury and a criminal offence. I have ample evidence that demonstrates the willingness of Southall’s clients to grossly and repeatedly misrepresent the truth by lying under oath in testimony, and in evidence. It is to be noted that this wrongful behaviour is systemic, and has been observed not only in court, but also with his clients’ previous interactions at VCAT. Although there are more instances where Southall supported falsely sworn testimony, a small number of the examples are provided.

Southall interviewed witnesses and gave advice on (1) the evidence that they would swear to, and (2) the witness statements and proof of evidence they would and did provide. Indeed, he settled the witness statements and proof of evidence after a number of amendments. 6 of the 13 proposed witnesses were dropped, so it could be conceived that either their testimony would have been unhelpful to Southall’s clients, or that they were unwilling to swear to what the Southall required they swear to. Further, Jack Kraan (“Kraan”), who was in court every day and knew the facts, was either advised to not be a witness, or refused to be a witness.

Southall justified one example of his client’s knowingly falsely sworn testimony as a “throw away line”: His Honour was suitably affronted and very unimpressed [emphasis mine]:

Southall: Just going back to that, at transcript page 258 what [your client] said, he said nothing more or less than a throw-away line … He said that as a throw-away line in the witness box.

His Honour: It wasn’t a throw-away line.

Mr Southall: Well, it was a statement from the witness box.

His Honour: It was a bit of evidence from the witness box.

Southall knew (because he personally settled both documents) that in the statement of claim[2] and answers to my request for further and better particulars was very a specific (but fraudulent) claim about a purported meeting in one of Southall’s clients (second plaintiff)’s office between the second plaintiff and me (the defendant) that did not take place, and about a conversation between us that did not happen [emphasis mine]:

In or around 2008, [the defendant] stated to [the second plaintiff] that ‘it could all go away if you negotiate with me’.[3]

On a subsequent occasion, [the defendant] asked [the second plaintiff] to buy the Shapher land while in his office.

In spite of those clear, unambiguous and fraudulent documented claims filed with the court as absolute and unadulterated fact, the second plaintiff testified [emphasis mine]:

The second plaintiff: The only real contact I’ve had [with the defendant], other than that meeting in the solicitor’s office, has been at VCAT and at various mediation meetings.

 

Me: You said that we have only met a couple of times, basically at VCAT, the mediation and at Mr Callander’s office?

The second plaintiff: To the best of my recollection, yes.

Me: That’s to the best of my recollection also but I notice in your response to my request for better and further particulars that you actually said that we had a meeting in your office. I would like to know when that meeting took place and what it was regarding because I don’t even know where your office is, other than it’s in Lilydale.

The second plaintiff: I don’t recall it either.

Me: That makes two of us because that’s actually in your – – – … Under paragraph 15 thereof it says: “On the subsequent occasion the defendant asked the second plaintiff to buy the Shapher land while in his office”?

The second plaintiff: I think it might mean the other plaintiff was in my office.

Me: Because I’ve never been to your office.

The second plaintiff: I certainly hope not.

Me: I’m glad that we are in agreement there, but it does call into question things that are said.

Southall (who knew that the written claims were entirely fraudulent being that he had settled both documents), re-examined the second plaintiff by way of leading questions so as to elicit the following falsely sworn testimony:

Mr Southall: Just one question. Early on in the cross-examination…, it was pointed out correctly by [the defendant] that in paragraph 15(b) of the further and better particulars to the statement of claim there was a statement that there was a meeting where [the defendant] met you in your office. Do I understand from an answer you gave you don’t recall any such meeting?

The second plaintiff: That’s correct.

Mr Southall: It that was in the further and better particulars, does that appear to be a mistake?

The second plaintiff: Yes, without reading sitting down and reading it thoroughly, I would have interpreted it that the meeting what [sic] in my office between [the first plaintiff] and I regarding the issue.

The further and better particulars provided by Southall and his clients clearly and unambiguously stated that the alleged meeting took place with me – and my statement here is entirely consistent with their statement of claim. There can be no grounds for interpreting that the meeting took place between two of Southall’s clients, particularly given that it related to that specific alleged conversation that I was supposed to have had with the second plaintiff (but didn’t). What we can see from this is that when confronted by the fraudulence in the documentation he settled, Southall, in spite of knowing the truth[4], actively assisted the second plaintiff in lying under oath and in attempting to divert attention from the fraudulent claims settled by Southall himself, by presenting a totally implausible falsely sworn alternative “interpretation” under oath.

Southall told the court as absolute fact that the second plaintiff wanted to get back in the witness box and [falsely] swear that he knew nothing about documents that were in his care and control (and some of which were contained in the affidavit of documents that he personally swore to, and which Southall settled and reviewed just days before the trial) – Southall thereby supported proposed falsely sworn testimony [emphasis mine]:

Your Honour, [the second plaintiff], and I seek leave -
 [the second plaintiff] desires to give evidence, and his evidence will be to this effect: That he can confirm that he didn’t receive anything in writing to that effect.

Southall revealed his attitude to his own repeated and prolific grossly erroneous misrepresentations, and to his clients’ falsely sworn testimony, and the absolute need to hide the falsity from the court. Southall told their Honours that his clients’ lies under oath (as well as his own grossly erroneous claims and denials in submissions and addresses), were small or trifling matters that the court should not worry itself about [emphasis mine]:

[T]he purpose of finality is to put an end to the re-litigation of small matters, of minutiae I hesitate to use the expression – de minimis lex…. Or any matters, but in this case small matters such as the issue of who attended a mediation on a particular date; such as the weather there were 23 or 40 days spent at VCAT; whether there was dust being created at any particular time. In the context of this case, they are what could be said to be small matters, or trifling matters even. If they can give vent to are renewal of issue by way of re-litigation, then the principle of finality of litigation really is put in serious generally insofar as it constitutes a very proper and basic principle of law. … De minimus non curat lex means, the law does not deal with little things. … No, the point that I was making in this case, is that, it’s a situation where [the defendant] had raised these issues, which we contend – we’re not saying that they were found to be small, we contend they’re small matters, or trifling matters, before His Honour Justice Pagone, and again raised it in her argument in front of His Honour Justice McDonald and His Honour.

Southall aggravated the situation by clearly showing the court that, regardless that his clients’ had repeatedly and deliberately lied under oath (and that he, himself, had repeatedly given many knowingly grossly erroneous misrepresentations to the court by way of addresses and submissions), that the allegations against them were such that they even though they had repeatedly broken the law, it was a small, irrelevant or trifling matter that the court must not waste its time with. Southall even quoted a few of the instances of the falsely sworn testimony regarding:

  • the number of days in VCAT: while the number of days does not of itself matter, the fact that both the first and second plaintiffs each conspired and collaborated together and gave pre-planned false testimony does matter. It matters for two reasons: (1) that it was pre-planned and collaborative – and therefore deliberate – and, as a result, ought to pass the test for perjury, and (2) the intention was to use their falsely sworn testimony to grossly exaggerate their claims against me;
  • the grossly erroneous claim of the first plaintiff that he was privy to the conversations in a closed mediation meeting to which he was not a party does matter because (1) he deliberately lied under oath and (2) the intention was to further their grossly erroneous claims for aggravated damages, and (3) to grossly and erroneously try to discredit me; and
  • the matter of dust was one of the matters about which CASACIR had lied in sworn written and verbal testimony at VCAT, and to which the first and second plaintiffs had given their absolute and documented approval – being issues at the heart of the website which in turn was at the heart of the defamation case.

Southall’s attempt to sway their Honours from investigating his and his clients’ grossly erroneous conduct reveals, not just Southall’s sanction of such conduct, but his active participation, instigation, approval, and assistance in the covering up of such conduct. If Southall’s attitudes to others’ and his own grossly erroneous conduct and material had been this clear to the judges earlier, it would have contributed to different judgments. However, he aggravated the situation by making light of his own and his clients’ grossly erroneous conduct.

In fact, Southall tried to also make Pagone J think that no-one would be interested in the fact that there are people who, for example, run quarries and who sit in the witness box and lie – he did this by cross-examining me in the witness box in the following manner [emphasis mine]:

Southall: Your intention was to log a current situation in a time sequence, I think were the words that you said. Do you recall saying words to that effect?

Me: Words to that effect, yes. Basically to keep people – anybody interested updated as to what was going on.

Southall: How would it keep people interested and updated as to what was going on, can I put to you or ask you, for you to say that you were appalled that [the first plaintiff] had sworn to facts that were obviously untrue and proved to be so and that he knew they were untrue. How does that, in a neutral way, keep people up-to-date by way of a log?

Me: I also said before that words to the effect of, “It was to keep people aware of situations that could arise if you would buy land that could have a quarry next to you or a wind farm or whatever as to what people will do, authorities will do, business will do.”

Southall: So you thought it would give impact to your Quarry Fight update to say that [the first plaintiff] had given provably false sworn evidence?

Me: Well, just to let people know that this is what people do.

Clearly Southall wanted the court to believe his clients and not doubt the veracity of their sworn testimony and his own submissions and addresses, in spite of the truth being vastly different to that proclaimed by them.

[1]    Vic Bar Rule 29

[2]    Dated 2 March 2012

[3]    Statement of claim dated 2 March 2012, in the particulars of paragraphs 26, 27 & 28

[4]    In fact, just prior to the trial commencing, he reviewed those documents so was very familiar with them