Fiona Spencer (“Spencer”) replaced Kaye as junior barrister when Kaye went on maternity leave in July 2013.
There were many times where Spencer, by her tacit silent consent, and by her clear and unmistakable assistance in providing Southall and their clients with information, assistance, draft documents, and backup, provided knowingly misleading and fraudulent misstatements to the court, and she has not corrected them.
Spencer actively initiated and supported fraudulent conduct when she prepared documents used by Southall and upon which she gave advice, that:
- made a considerable number of significantly derogatory and totally unwarranted statements which vilified, insulted and injured me;
- falsely made accusations that I had been guilty of misconduct, and
- falsely attempted to discredit me before the court and their Honours
- fraudulently told the court that the website was false, entirely false, was without foundation and was baseless when it was entirely true and accurate.
- fraudulently told the court that the causes of action that had been removed were true and that they had basis, when they were untrue claims and denials – and that was the reason they were removed.
I consider that Spencer’s instigation of, and agreement with, this behaviour contributed to it being scandalous, belittling and abusive, and arguably made her as culpable as Southall.
As seen from Spencer’s conduct, she had actively and/or passively assisted her clients as well as Ken Smith & Associates (“KSA”), Ken Smith (“Smith”), and Southall, to be dishonest.
Spencer was fundamental to the appeal proceedings. An incomplete list follows, and contains the following work done by Spencer according to the appropriate bill of costs, dated September 2015, detailing her work:
- In August 2013:
- she drew advice on applications for extensions of time and leave to appeal brought by me and her clients on 18 to 19/8/13;
- she drew memorandum recording instruction; and conferred with Southall to settle advice on 20/8/13;
- she reviewed my offer of compromise; and drew further affidavit of Smith on 21/8/13;
- she prepared advice concerning my offer of compromise on 27/8/13
- she reviewed further documents provided by instructors and further amended them; and amended advice on conferral with Southall on 28 to 29/8/13;
- In September 2013:
- she conferred with Southall re hearing on 19/9/13;
- she prepared for and appeared at hearing of applications before the Court of Appeal on 20/9/13
- In February 2014:
- she reviewed detailed email from instructor re my further amended proposed and further amended proposed index on 25/2/14;
- she responded to instructor and Southall re emails from 25 to 28/2/14;
- In March 2014:
- she reviewed detailed email from instructor re my further amended proposed and further amended proposed index; proposed amendments to my further proposed note; and held detailed liaison with instructor and Southall re my further proposed note on 3/3/14;
- she further amended proposed Note and advised re same; and reviewed further documents for AB [Appeal Book?] provided by instructor on 4/3/14.
- she drafted the summary on 27 to 29/3/14
- she liaised with Southall and further amended the summary on 30/3/14
- she sent settled summary to instructor and emailed re same and reviewed instructor’s response on 31/3/14
- In April 2014:
- reviewed email from instructor with my response and responded to she drew submissions on 7 to 10/4/14;
- she reviewed further documents re submissions; amended the summary re my proposed amendments; she liaised with Kaye re my proposed amendments; obtained further documents and reviewed same from Kaye; and liaised with instructor re submissions on 10/4/14
- she finalised submissions and drew list of authorities on 11/4/14
- she drew list of authorities; drew submissions; reviewed my further amendments and Court email re same; settled Court orders, amended summary; liaised with Southall re submissions and list of authorities; emailed instructor her response to Court; and sent details to instructor re amended summary on 14/4/14;
- she further amended summary on; and liaised with Southall and instructor re amended summary on 15/4/14;
- she further amended summary and draw table of disputed parts and respondents’ contentions re same; reviewed my further proposed changes; liaise with instructor re same; she further amended the summary and drew table of disputed parts and her clients’ contentions re same; reviewed my further proposed changes; and liaised with instructor re proposed changes to summary on 16/4/14;
- she conducted email correspondence with instructor; and provided advice re email to Court on 17/4/14;
- she reviewed my response letter to the Court; and advised re my letter and drew proposed email to Court on 22/4/14;
- In May 2014:
- she reviewed email instructor re need to file revised appeal/application book on 7/5/14;
- she reviewed my amendments and instructor and emailed re court response; drew revised index; she liaised with instructor re contents of index; requested and revised document to be included; and liaised with Southall re documents to be included on 8/5/14;
- she reviewed my response; revised note accordingly; and drew detailed response to me; and emailed instructor re my response on 12/5/14;
- she reviewed email from instructor; and responded to email from instructor and liaised with instructor on 13/5/14 (this included her fraudulent actions in removing a document from the list without discussion and substituting it without discussion, notification or consent, notification or consent. This also included her further fraudulent actions in removing a different set of documents from the list – in spite clear directions from the court that they must be included);
- she reviewed my further revisions; and drew email to Court; and sought instructions re same; she further revised index on 14/5/14;
- she reviewed response from Court and instructor email; she amended note accordingly, she drew further email to Court on 20/5/14 ;
- she reviewed the her clients’ submissions and List of Authorities; and liaised with instructor re final form of note on 21/5/14;
- she liaised with instructor re contents of AB [Appeal Book?] on 22/5/14;
- In June 2014:
- she amended list of authorities following email from Southall re Court of Appeal decision in Belbin on 10/6/14;
- In July 2014:
- she reviewed correspondence from instructor re summary on 1/7/14;
- In August 2014:
- she reviewed email correspondence from instructor re appeal book on 22/8/14;
- she reviewed email correspondence from instructor re appeal book on 25/8/14;
- In October 2014:
- she prepared for hearing including preparation of speaking notes, emails to instructor re authorities and additional documentation required and conference with Southall on 30/10/14;
- she prepared for hearing including preparation of speaking notes, emails to instructor re authorities and additional documentation required and conference with Southall on 31/10/14;
- In November 2014:
- she prepared for hearing including preparation of speaking notes emails to instructor re authorities and additional documentation required and conference with Southall on 1, 2, 4 and 5/11/14;
- she appeared before Court of Appeal on 6/11/14;
- she drew submissions responding to orders made on 6 November 2014 and conferred with Southall re same on 8-10/11/14;
- In April 2015:
- she emailed correspondence with Southall and instructor concerning outstanding judgment and enforcement of damages awards/costs on 13/4/15;
- she sent emails and had telephone conferences with Southall re same on 23/4/2015
- she prepared for and attended a conference with Southall on 22/4/2015;
- she researched and prepared outline of submissions on costs offers of compromise, interest etc for hearing on handing down of judgment;
- she reviewed correspondence re the s29 application; she emailed Southall re orders and reserved costs issue; and she perused judgment; she reviewed email from Southall re matters to follow up and response from instructor and orders on 27/4/15;
- she reviewed correspondence from the Court re the s29 application; and prepared for and had conference with Southall on 28/4/15
- she reviewed Court of Appeal transcript from handing down of judgment; she researched reserved costs issue and emails to Southall and instructor re same on 29 & 30/4/15; and advised re response to my letter re proposed orders on s29 application on 29 & 30/4/15
- In May 2015:
- she had a conference with Southall and instructor and client on 5/5/15.
In summary, Spencer:
- collaborated with her clients, KSA, Smith, Kraan, Southall and, on at least one occasions, with Kaye; and
- prepared, amended and in some instances settled, documentation with fraudulent content; and
- gave advice, the outcomes of which resulted in fraudulent misrepresentations.
Spencer was paid at least $28,359.29 for her conduct in this matter.
Spencer was fundamental to the appeal proceeding S APCI 2013 0120. An incomplete list follows, and contains the following work done by Spencer according to the appropriate bill of costs, dated September 2015, detailing her work:
- In August 2013:
- on 16/8/13 – she conferred with Southall and instructors; and draw memorandum recording instruction;
- on 18-19/8/13 – she drew advice on applications for extensions of time and leave to appeal brought by me and her clients;
- on 20/8/13 – she conferred with Southall to settle advice; and conferred with Southall re hearing;
- In September 2013:
- on 20/9/13 – she appeared at hearing of applications before the Court of Appeal, including preparation;
- on 30/9/13 – she drew Notice of Appeal;
- on 1/10/13 – she conferred with Southall re Notice of Appeal and amend same;
- In October 2013:
- on 7/10/13 – she reviewed email from instructor with draft proposed index and respond to email from instructor re same with detailed advice re amendment;
- on 10/10/13 – she reviewed further draft index, she amended same, she liaised with Southall and instructor re same;
- on 11/10/13 – she reviewed further documents for index provided by instructor; further review and amend index; and liaised with instructor re amended index;
- on 16/10/13 – she had correspondence with instructor re contents of appeal book; and responded to registry, she provided advice re contents of appeal book
- on 17/10/13 – she reviewed email from instructor
- on 18/10/13 – she responded to instructor and further correspondence with instructor re response to me
- In February 2014:
- on 25/2/14 – she reviewed my further amended proposed index and detailed email from instructor re same
- on 28/2/14 – she responded to instructor and Southall re emails from 25 Feb
- In March 2014:
- on 3/3/14 – reviewed my further proposed note; proposed amendments to same; detailed liaison with instructor Southall re same
- on 4/3/14 – reviewed further documents for AB [Appeal Book?] provided by instructor; she further amended proposed Note; she advised re same
- on 5/3/14 – she reviewed email from instructor with my response and responded to same
- on 27 to 29/3/14 – she drafted and amend Summary
- on 30/3/14 – she liaise with Southall and further amend summary
- on 31/3/14 – she sent settled summary to instructor and email re same; she reviewed instructor’s response
- In April 2014:
- on 7 to 10/4/14 –she draw submissions
- on 10/4/14 – she liaised with instructor re same, she reviewed further documents re same; amended summary re my proposed amendments, she liaised with instructor, Southall and Kaye (previous junior) re same; she obtained further documents and reviewed same from Kaye; and drew submissions and list of authorities; she conferred with Southall re same;
- on 11/4/14 – she finalised submissions and draw list of authorities;
- on 14/4/14 –she liaised with Southall re submissions and list of authorities; reviewed my further amendments and Court email re same; emailed instructor response to Court; settled Court orders, amended summary; and sent details to instructor re same;
- on 15/4/14 – she further amended summary and liaises with Southall and instructor re same;
- on 16/4/14 – she reviewed my further proposed changes; she liaised with instructor re same; and further amended summary and drew table of disputed parts and appellants’ contentions re same;
- on 17/4/14 –she had email correspondence with instructor; and provided advice re email to Court;
- on 22/4/14 – she reviewed my response letter to the Court; and advised re same and drew proposed email to Court;
- In May 2014:
- on 21/5/14 she reviewed her clients’ submissions and List of Authorities;
- on 7/5/14 – she reviewed email from instructor re need to file revised appeal/application book index;
- on 8/5/14 – she drew revise index; she liaised with instructor re same; requested and revised document to be included; liaised with Southall re same; and reviewed my amendments and instructor email re Court response:
- on 12/5/14 – she reviewed my response; emailed instructor re same; revised note accordingly; and drew detailed response to me;
- on 13/5/14 – she reviewed email from instructor; and responded to same and liaised with instructor;
- on 14/5/14 – she reviewed my further revisions; she sought instructions re same; she further revise index; and drew email to Court;
- on 20/5/14 – she reviewed response from Court and instructor email; she amended note accordingly, and drew further email to Court ;
- on 21/5/14 – she liaised with instructor re final form of note;
- on 22/5/14 –she liaised with instructor re contents of AB [Appeal Book?];
- In June 2014:
- on 10/6/14 she amend list of authorities following email from Southall re Court of Appeal decision in Belbin;
- In July 2014:
- on 1/7/14 she reviewed email correspondence from instructor re summary;
- In August 2014:
- on 22 and 25/8/14 – she reviewed email correspondence from instructor re appeal book;
- In October 2014:
- on 30 & 31/10/14 – she prepared for hearing including by the preparation of speaking notes, emailed to instructor re authorities and additional documentation required and attended a conference with Southall;
- In November 2014:
- on 1, 2, 4 and 5/11/14 – she prepared for hearing including by the preparation of speaking notes, emailed to instructor re authorities and additional documentation required and attended a conference with Southall;
- on 6/11/14 – she appeared before Court of Appeal;
- In April 2015:
- On 13/4/15 – she had email correspondence with Southall and instructor concerning outstanding judgment and enforcement of damages awards/costs;
- on 21-23/4/15 – she prepared for and attended conference with Southall on 22 April, she researched and prepared outline of submissions on costs offers of compromise, interest etc for hearing on handing down of judgment; she emailed and had telephone conferences with Southall re same on 23 April;
- on 27/4/15 – she perused judgment; she reviewed email from Southall re matters to follow up and response from instructor and orders; she reviewed correspondence re the s29 application; email Southall re orders and reserved costs issue;
- on 28/4/15 – she reviewed correspondence from the Court re the s29 application; and prepared for and attended conference with Southall
- on 29 & 30/4/15 – she reviewed the Court of Appeal transcript from handing down of judgment; researched reserved costs issue and emails to Southall and instructor re same; and advised re response to my letter re proposed orders on s29 application;
- In May 2015:
- on 5/5/15 – she attended a conference with Southall and instructor and clients;
In summary, Spencer:
- Collaborated, colluded and conspired with her clients, KSA, Smith, Kraan, Southall and, on at least one occasions, with Kaye; and
- prepared, amended and in some instances settled, documentation with fraudulent content; and
- gave advice, the outcomes of which resulted in fraudulent misrepresentations.
Spencer was paid at least $31,063.44 for her conduct in this matter.
Spencer was fundamental to the s29 application under the Civil Procedure Act 2010 (CPA”) in relation to the trial. An incomplete list follows, and contains the following work done by Spencer according to the appropriate bill of costs, dated April 2017, detailing her work:
- In 24 September 2013:
- on 24/9/2013 – she conferred with Southall re directions hearing;
- on 26/9/2013 – she prepared for and appeared at directions hearing before Daly AsJ;
- In November 2013:
- on 28/11/2014 – she reviewed correspondence concerning section 29 application from me, instructor and the Court;
- In December 2013:
- on 3/12/2013 – she further reviewed correspondence concerning section 29 application from me, instructor and the Court;
- In April 2015:
- on 27/4/15 she perused judgment in the Appeal matters; she reviewed email from Southall re matters to follow up and response from instructor and orders; she reviewed correspondence re the section 29 application; she emailed Southall re orders and reserved costs issue
- on 28/4/15 she reviewed correspondence from the Court re the section 29 application; she prepared for and attended conference with Southall;
- on 29 and 30/4/2015 – she reviewed the Court of Appeal transcript from handing down of judgment; researched reserved costs issue and emails to Southall and instructor re same; and advised re response to my letter re proposed orders on section 29 application;
- In May 2015
- on 1/5/2015 – she further reviewed the Court of Appeal transcript from handing down of judgment; she further researched reserved costs issue and emails to Southall and instructor re same; and further advised re response to my letter re proposed orders on section 29 application;
- on 5/5/15 she attended conference with Southall and instructor and clients;
- on 7/5/15 she prepared for and attended conference with Southall; she prepared for directions hearing including reviewing documentation filed in the section 29 application and relevant orders and drafting proposed orders; emailed to instructor re same; reviewed my “submissions” concerning the directions hearing; and reviewed email from instructor;
- on 8/5/15 she attended hearing; reviewed email from instructor concerning matters raised at the directions hearing; and reviewed the hearing transcript
- on 25, 27 and 29/5/2015 – she reviewed email from instructor re email correspondence from Southall re same; and reviewed email from instructor re section 29 application documents filed by me.
- In June 2015:
- on 3/6/15 she provided correspondence to Southall and instructor concerning affidavit evidence for section 29 application;
- on 4/6/15 she provided further correspondence re my section 29 application material and her clients’ response and strategy with Southall and instructor;
- on 5/6/15 she commenced perusing my three folders of affidavits and extensive email correspondence with instructor re instructions re same for response;
- on 6/6/15 – she finalised perusing my affidavits; and commenced the drafting of the affidavit in response;
- on 7/6/2015 – she finalised the drafting of the affidavit in response;
- on 26/6/2015 – she perused my submissions;
- on 30/6/2015 – she reviewed Southall’s notes on my affidavits;
- In July 2015:
- on 3 to 9/7/2015 – she researched and drew submissions on my section 29 of the CPA application; conferred with Southall re same and correspondence with instructor re instructions and documents for same; and drew supplementary affidavit of Ken Smith;
- In October 2015:
- on 23 and 25/10/2015 – she prepared for hearing including preparing speaking notes and conference with Southall;
- on 26/10/2015 – she appeared before McDonald J on hearing of section 29 application with Southall;
- In February 2016:
- on 5/2/16 – she prepared for and appearance to receive judgment on 5 February 2016;
- on 11/2/16 – she settled the affidavit as to costs; and drew the submissions as to costs;
- on 12/2/16 – she finalised preparation of submissions as to costs and confer with Southall re same;
- on 22/2/16 she perused my submissions as to costs;
- In March 2016:
- on 11/3/16 she appeared to receive judgment as to costs;
In summary, Spencer:
- collaborated with her clients, KSA, Smith, (presumably) Kraan, and Southall; and
- prepared, amended and in some instances settled, documentation with grossly erroneous content; and
- gave advice, the outcomes of which resulted in grossly erroneous misrepresentations.
Spencer was paid at least $38,606.25 for her conduct in this matter.
Spencer was fundamental to the appeal of the s29 application under the Civil Procedure Act 2010 (CPA”). An incomplete list follows:
- As this matter is not yet billed, based on the previous bills, she would have:
- attended and collaborated with her clients, KSA, Smith and Southall in conferences;
- presented memorandums of advice;
- perused, viewed, reviewed, commented on, advised on each document supplied by me;
- drafted, prepared her clients’ documents, responded to instructions;
- she certainly did attend the hearing on 11 October 2016, and
- she certainly did attend the handing down of the judgment on 14 December 2016.
Thus, according to the bills, Spencer was paid at least $90,028.98 for her conduct in 3 matters, and that is without the fees for her participation in the appeal of the s29 application.
Spencer chose to remain silent during some extraordinary conduct of, in particular, Southall. You can see from the above interactions, communications, and conferences between Southall and Spencer, that she had a lot of input into the grossly erroneous misrepresentations made by Southall. She could have brought the truth to bear but made the decision to support the grossly erroneous conduct rather than to try to stop it. She had the authority and the right as evidenced by Southall on one of the extremely few times she did correct him (T65:22-23 (6 November 2014)):
I’m sorry, I’m reminded by my learned junior in relation to a question from Your Honour, Justice Ginnane …
Spencer was a crucial part of the process and assisted in the production and presentation of the grossly erroneous evidence and information that contributed to her clients being awarded an additional $120,000 in damages, together with interest and costs (including on an indemnity basis), totalling hundreds of thousands of dollars – and, as identified above, she was grandly rewarded for her conduct by being paid significant fees, and by the recognition of having been part winning the case by her silence and blatant collaboration in, and acceptance of, grossly erroneous conduct.