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.
Some time had been spent on the issue of party versus witness before the 2016 Court of Appeal. Their Honours came to the conclusion that whether a party or not, when in the witness box, a person was a witness and therefore under the law as to conduct by or against them. Intimidation by way of humiliation of a witness was not allowed, as explained by Kyrou JA [emphasis mine]:
Kyrou JA: … The other aspect, is that, my recollection is that the Evidence Act which deals with witnesses and imposes some obligations on witnesses and gives them certain protections as well – for example, shields them from offensive cross-examination, humiliation, etc., etc. – there’s no reason why those protections and those obligations in the Evidence Act would not apply also to a party in the capacity of a witness. It just wouldn’t be rationale to say that a normal independent witness can be cross-examined with a view to humiliating them, whereas a party can be cross-examined to that effect. That might be something in support of your primary argument… The Evidence Act provides that you can’t cross-examine inappropriately with a view to insulting the witness… Humiliating them gratuitously if it’s got nothing to do with … any credit, in terms of the veracity of their evidence, or any issue in dispute in the case, that’s the sort of thing that I’m getting at.
In addition, Mr Steve Mark, the then NSW Legal Services Commissioner stated in his 2009 Ethics in Litigation and Court Proceedings:
In Australia there exists a positive obligation on all practitioners in Australia to ensure that their communications are courteous and that each practitioner avoids offensive or provocative language or conduct.
It is important to note that both Rule 25 and Rule 31 only deal with the obligation of courtesy between practitioner/practitioner. There is no obligation under the Conduct Rules, which stipulates that a practitioner must act courteously toward his/her client or other third parties. [However, t]he Statement of Principles prefacing the section of the Rules dealing with Relations with Third Parties merely states:
Practitioners should, in the course of their practice, conduct their dealings with other members of the community, and the affairs of their clients which affect the rights of others, according to the same principles of honesty and fairness which are required in relations with the courts and other lawyers and in a manner that is consistent with the public interest.
Southall largely ignored this when it came to me, and he did this by attempts at intimidation (as well as, inter alia, blatant dishonest claims and denials, and by deliberately defaming me). In fact, he exhibited some of what I consider to be outrageous conduct in relation to the judges (see other pages for details).
Southall gave advice to his instructors and clients to commence a malicious prosecution against me. Having succeeded in getting a small number of his claims to court (largely because of my previous team’s failure to follow my instructions), in spite of legislation banning him from such practices (and Kyrou’s subsequent clarifications above), Southall repeatedly tried to humiliate me – especially when cross-examining me – including basically calling me a liar by repeatedly asserting things that he knew were not true. Southall knew that if the truth was to come out that his entire case would fall and his clients would be liable for the costs and subject to humiliation.
Therefore, in great disregard for the truth, Southall unlawfully tried to intimidate me by making his clients’ case appear stronger than it was in circumstances where the evidence could not support it without using such tricks as intimidation (along with his defamatory conduct, and his deceptions and other misleading conduct). Perhaps I shouldn’t have been surprised by Southall’s endeavours at intimidation, particularly in cross-examination, given that:
- he had instructed Kraan and man X to publically embarrass and humiliate me in front of a community gathering (comprised of many community members, regulatory authority officers, and councillors) by publicly informing me that Southall had told them to not accept any questions from me at the public meetings (which was a breach of CASACIR’s permit conditions as well as being a clear attempt at intimidation),
- he had done so in front of Emerton J as discussed in the relevant pages, and
- he had basically admitted at court that he had tried to intimidate me at the mediation held 13 November 2012.
Nevertheless, I had naively and wrongly thought that in an actual legal proceeding Southall would conduct himself with proper dignity and professionalism and would not stoop to such low tactics. One has to say that he has been both consistent and persistent with his goal, and this is yet another ingrained pattern of behaviour. And, the noted examples are just some of the ways he has tried to intimidate me.
In addition, he caught me by surprise by his further attempts at intimidation:
- the deception in his clients’ letter of 19 August 2011, and his own use of the threats, irrespective of the grossly erroneous content, were an attempt to intimidate me[1];
- a letter undated but posted 15 December 2016 (unsurprisingly with a bogus address and sender) – by a small-minded, irrational, nasty and unintelligent troll in his group who intimately knows the cases;
- attempts at intimidation by the use of the threat of injunctions he later admitted he knew they could not obtain;
- his serious, repeated and grossly erroneous attacks my character and reputation[2];
- in an intimidating manner during cross-examination, Southall virtually admitted that he believed he had significantly intimidated me at mediation:
I would have thought that was – and I put to you that that [the reason you removed the entire website] was a direct consequence of what you were told at the mediation by me.
Since Southall entered the issues and details of mediations into cross-examination[3], it is entirely relevant to note that he settled, presented and articulated a mediation position paper that clearly but grossly and erroneously:
- stated that I still continued to make defamatory allegations in the website when he admitted before Pagone J that I had not (he either lied to the mediator or to Pagone J);
- stated that the further allegations in my website were false, misleading and deceptive – yet he deliberately did not raise those issues before Pagone J in spite of the fact that his paper declared that he intended to seek a further amendment to his statement of claim to add the purported entries (proving that he lied to the mediator);
- denied having given permission for me to contact CASACIR’s specialists, when their answers to my request for further and better particulars clarified their claims in the first 3 of their statements of claim by specifically stating that I should have already done so, and that I was derelict in my duty for not having done so;
- told the mediator that they claimed injunctions – in spite of assuring Pagone J as unequivocal fact that they did not;
- admitted that he knew about the fax dated 23 August 2011, but erroneously told the mediator that there had been no further response to the letter of 19 August 2011 when he knew that I had responded on the website, as the fax foretold; and
- made allegations relating to aggravated damages when he knew that his claims were not true (Pagone J later agreed that they were false, and the claims were dropped in their appeal, thereby proving that they were false).
Those were just some of the grossly erroneous issues that he raised before the mediator.
Southall stated at court that he believed those were the reasons why I removed the website from the internet – i.e. that I had removed the website due to the intimidation (of his lies, and grossly erroneous claims). He claimed:
I would have thought that was – and I put to you that that [the removal of the entire website] was a direct consequence of what you were told at the mediation by me.
Southall also additionally tried to intimidate me by a statement read out in mediation but expressed in his mediation position paper:
At trial, the Plaintiffs will apply to amend further the Statement of Claim in order to add allegations relating to the more recent publications.
This was clearly untrue given that he did not request permission to grant permission to amend the statement of claim on that basis in spite of creating, filing and/or serving a further 4 iterations of the statement of claim, and attending at 2 directions hearings – all after the mediation hearing.
In fact, who knows what else he told the mediator given that he had a number of lengthy communications with the mediator to which neither I, nor my then legal team, had any participation or knowledge [emphasis mine]:
9 November 2012 – Confer / discuss mediation with Mediator (Gibson)
12 November 2012 – Long telephone conference and exchange of emails with Mediator Gibson re pleadings and issues in contention; Discuss with him procedure, content, format and strategy for mediation
In fact, his notes on those discussions have been deliberately withheld from me in spite of requests for copies.
Southall’s intimidation continued by taking me to court in relation to:
- defamation, when he knew that I had not actually defamed his clients (because they proved that they were not the honest men they swore they were given that they, inter alia, repeatedly lied under oath – at times collaboratively), and
- his entirely unwarranted and knowingly untrue claims of injurious falsehood and misleading and deceptive conduct; and
- the initial, and then continued, insertion of CASACIR into the case in order to intimidate me by the excessive, unreasonable and grossly erroneous claims that he put against me.
These were just some of Southall’s clear attempts to intimidate me into pulling my very revealing website from the internet – in fact, this was one of their belated stated purposes for the action they took (see the pages on the real reasons they took action against me).
His intimidation continued by the production in court of without prejudice and in confidence correspondence in a manner that was (1) without permission, and (2) not of any relevance to the matters at hand (and that was proved by (a) Pagone J stating that they were not an avenue that I had used to try to force Southall’s clients to purchase the land and (b) Southall himself told the Appeal Court that his clients did not rely upon any of those matter any more);
Southall tried to get me to withdraw my application under s29 of the CPA by threatening me in the following manner (these were threats because they were not carried through):
- by Southall telling the judge that he was going to apply to have my application dismissed when he had no actual intention of doing so because he did not do so:
Your Honour, our primary position on that summons and supporting submission, or application, is that we would seek to urge Your Honour to find that it is an abuse of process and to dismiss it in the inherent powers of the court inter alia under Rule 23.
We would say that there is no substance [to the allegations in the application].
- by settling a letter from KSA and Smith to me that was sent and received 30 May 2013 at 1.13pm by email, giving just 26 hours to make a crucial decision – if that is not an attempt at intimidation, what is? In the letter Southall settled, he stated [emphasis mine]:
Our clients vigorously dispute that there was a breach of any overarching obligation within the meaning of the CPA….
… It is our clients’ position that your summons and supporting material are not only misconceived, but also unsustainable …The matters which you raise in your supporting documents are matters which could go only to the determination of the substantive defamation proceeding, if indeed they were relevant to the proceeding, which is in any event denied.
In these circumstances, our clients’ intent to apply to the Court at the earliest opportunity for orders that your summons be struck out, with consequential orders as to costs.
He apparently did not advise any action since no action was taken – therefore, the purpose was for intimidation.
As I have said, perhaps I shouldn’t have been surprised by Southall’s endeavours at intimidation, nevertheless, I had erroneously thought that in a legal proceeding Southall would conduct himself with proper dignity and professionalism and would not stoop to such low, awful and unlawful tactics. However, I was totally surprised by his intimidating conduct and had not been able to prepare for it, or even to fully understand what he had done until afterwards when looking at all the evidence. One has to say that he has been both consistent and persistent with his goal, and this is another ingrained pattern of behaviour. And, those exampled are just some of the ways Southall has tried to intimidate me.
[1] The letter is detailed in a separate page
[2] As referred to in a separate page
[3] He also breached legislation by, without any prior discussion with me, examining the first plaintiff in relation to details of the mediations held at VCAT.