Plaintiffs v Defendant

1 Following a seven day trial before Pagone J in April 2013, his Honour delivered judgment on 23 May 2013.[1] His Honour ordered:

(i) Mrs Virginia Giles to pay damages in the amount of $12,000 to Mr David Jeffrey and $8,000 to Mr Thomas Curnow; and

(ii) Mrs Giles to pay the plaintiffs' costs other than costs referable only to the issue of aggravated damages unless there be some further or other order made in connection with the summons and application filed on 17 May 2013 under s 29 of the Civil Procedure Act 2010 ('the Act').[2]

2 The plaintiffs appealed the quantum of the damages order. Mrs Giles sought leave to appeal in respect of the costs order. The Court of Appeal delivered judgment on 24 April 2015.[3] The plaintiffs' appeal was upheld. The damages ordered by Pagone J were set aside and in lieu thereof, Mr Jeffrey was awarded damages in the sum of $75,000 and Mr Curnow in the sum of $65,000. The Court ordered that the question of costs below and the question of interest payable on the awards of damages be referred to the judge hearing the application pursuant to s 29 of the Act. The Court of Appeal (Ginnane AJA dissenting) refused Mrs Giles' application for leave to appeal from the costs order made by Pagone J.

3 The application under s 29 of the Act referred to in the orders of Pagone J and the Court of Appeal, is an application filed by Mrs Giles on 17 May 2013 ('s 29 application'). The proceedings before Pagone J concluded on 18 April 2013. Hence, the s 29 application was filed some four weeks after the completion of the trial but six days prior to Pagone J delivering judgment. In her application, Mrs Giles seeks the following orders:

(i) an order that the plaintiffs pay some or all of the legal costs or other costs or expenses of the defendant arising from the contravention of the overarching obligations;

(ii) an order that the legal costs or other costs or expenses of the defendant be payable immediately and be enforceable immediately;

(iii) an order that the plaintiffs compensate the defendant for any financial loss or other loss which was materially contributed to by the contravention of the overarching obligations, including an order for penalty interests in accordance with the penalty interest rate in respect of any delay in the payment of an amount claimed in the civil proceeding;

(iv) an order that the plaintiffs take any steps specified in the order which are reasonably necessary to remedy any contravention of the overarching obligations by them or their legal representatives; and

(v) any other order that the Court considers to be in the interests of the defendant, who has been prejudicially affected by the plaintiffs contravention of their overarching obligations.

4 On 31 May 2013, Mrs Giles also filed a summons pursuant to r 46.04(1) of the Supreme Court (General Civil Procedure) Rules 2005 ('the Rules'). By her summons Mrs Giles sought orders that the plaintiffs pay her costs thrown away by reason of the plaintiffs abandoning claims for injurious falsehood and misleading and deceptive conduct. She also sought an order for indemnity costs based on an offer of compromise served on the plaintiff on 28 November 2012 in the sum of $40,000. When this matter was first listed for hearing before me on 8 May 2015, I advised the parties that I intended to deal with the relief claimed by Mrs Giles concurrently with determining her s 29 application. Neither the plaintiffs nor Mrs Giles objected to this course of action.

5 During the course of the hearing on 8 May 2015, Mrs Giles stated that she wished to amend her s 29 application. The following exchange took place between myself and Mrs Giles:

MS GILES: I want to take the details out of the actual application and put them into an affidavit.

HIS HONOUR: You have filed an affidavit. You have filed a detailed affidavit. Your paperwork is impeccable, it is in order. You have filed a summons under s 29.

MS GILES: Yes.

HIS HONOUR: The summons is in order.

MS GILES: Yes.

HIS HONOUR: As is required by the Rules, your summons is supported by an affidavit.

MS GILES: Right.

HIS HONOUR: You do not need to put in any other paperwork in order to enliven the court's jurisdiction under s 29. I have read your affidavit and I have read the document that you were required to file pursuant to an order of Associate Justice Daly, so I understand the basis, I understand the broad thrust of the application you are making and the basis upon which you were putting it.

MS GILES: Right. There's some additional information I'd like to put in.

HIS HONOUR: All right, I will grant you leave to file a further affidavit.

MS GILES: So I don't need to actually amend the application?

HIS HONOUR: No

MS GILES: Just put in an extra affidavit?

HIS HONOUR: There is no need to amend the application because the Court of Appeal has determined what are the matters to be dealt with under the application, Ms Giles, and I regard myself as needing to act in accordance with what the Court of Appeal has said.

MS GILES: Yes.

HIS HONOUR: So you want to put in some further material in support of your application?

MS GILES: That is correct.[4]

6 The exchange set out above was reflected in the orders made by the Court on 8 May 2015 whereby Mrs Giles was ordered to file and serve any further affidavit in support of her application by 4.00 pm on 29 May 2015. In fact, on 28 May 2015, Mrs Giles filed 10 further affidavits in support of her application. These affidavits were in addition to the 3 affidavits which had been filed prior to the hearing on 8 May 2015.

7 In addition to the issues raised by Mrs Giles' s 29 application there are two further issues which fall for determination as a result of the orders of the Court of Appeal. First, whether the plaintiffs should be awarded their costs, including reserved costs, on an indemnity basis. Second, whether the plaintiffs should be awarded interest pursuant to s 60(1) of the Supreme Court Act 1986 ('Supreme Court Act').

8 I have concluded that there is no basis for granting Mrs Giles any relief pursuant to her s 29 application. As to the plaintiffs' claim for indemnity costs, I have concluded that the plaintiffs should be awarded their costs on an indemnity basis pursuant to s 40(2)(a) of the Defamation Act 2005 ('Defamation Act'). Further, the plaintiffs are entitled to an award of interest pursuant to s 60(1) of the Supreme Court Act.

Mrs Giles' s 29 application

9 Before turning to a consideration of the material filed by Mrs Giles in support of her s 29 application it is necessary to make some observations regarding the original proceeding before Pagone J. Mrs Giles represented herself in the proceeding. The transcript of those proceedings runs for 607 pages. I have read the transcript carefully. Mrs Giles was afforded every opportunity to present her case. Senior counsel for the plaintiffs, Mr Southall QC, conducted himself properly throughout the trial. The trial was conducted over seven days. However, it is to be noted that on the second and fourth days of hearing, half of each day was taken up by mediation. Also, on the second day of hearing, time was taken up with the hearing of an application by Mrs Giles to amend her defence to plead the truth of the alleged defamatory publications. This application was refused.[5]

10 On the first day of hearing before Pagone J the following exchange took place between his Honour and Mrs Giles regarding the absence of any pleading in her defence of truth:

HIS HONOUR: I don't know why your legal team refused to run a defence of truth.

MS GILES: I don't know either.

HIS HONOUR: But it might be because they took the view that it was unarguable.

MS GILES: They said it was going to take probably 10 or more days and the cost was prohibitive.[6]

In the proceedings before me, Mrs Giles acknowledged that she had accepted the advice of senior and junior counsel who drafted the defence on her behalf, not to put in issue the truth of the alleged defamatory publications.[7]

11 Having elected not to put in issue the truth of the alleged defamatory publications at trial, by means of her s 29 application Mrs Giles has sought to do precisely that. This is a matter to which I shall need to return later in this judgment.

12 The exercise of the power conferred by s 29 of the Act is conditional upon the Court considering it 'appropriate in the interests of justice' to do so. If, contrary to the reasons set out below, I had considered there to be any merit in any of the grounds advanced by Mrs Giles, I would in any event have refrained from making any orders under s 29. The desirability of finality in litigation is a significant discretionary consideration which weighs against making any orders under s 29 in the circumstances of the present case. Many of the matters which Mrs Giles relies upon in support of her s 29 application could have been raised in the proceedings before Pagone J. It is contrary to the interests of justice and antithetical to the overarching purpose of the Act for an application under s 29 to be the vehicle for agitating matters which could have been ventilated at trial. This observation is brought into particularly sharp focus in the present proceedings by the 13 affidavits filed by Mrs Giles in support of her application.

13 In Burrell v R[8] the High Court stated in respect of the principle of finality:

... It is that the principle of finality serves not only to protect parties to litigation from attempts to re-agitate what has been decided, but also has wider purposes. In particular, the principle of finality serves as the sharpest spur to all participants in the judicial process, judges, parties and lawyers alike, to get it right the first time. Later correction of error is not always possible. If it is possible, it is often difficult and time-consuming, and it is almost always costly.[9]

14 In Snezana Angeleska (known as Slaveska) v State of Victoria & Ors[10] ('Slaveska') Warren CJ, Tate JA and Ginnane AJA held:

In the circumstances, we consider that to the extent that Mrs Slaveska's writ makes claims in relation to Incidents 5 to 10 (and indeed Incidents 1 to 4 and 12), it amounts to an attempt to re-litigate controversies that have been resolved by this Court in a proceeding in which Mrs Slaveska was intimately involved. Whatever her intentions were in filing her writ, to allow her now to proceed with her claims regarding the incidents dealt with in Mr Slaveski's proceeding would, in the circumstances, both create the appearance of and actually involve such a degree of re-litigation that it would bring the administration of justice into disrepute. Mrs Slaveska has had more than ample opportunity to make her allegations regarding Incidents 5 to 10. That opportunity has now passed.

...

It is entirely consistent with the Court's duty under the Civil Procedure Act that it prevent the arduous re-agitation of claims associated with incidents examined at great length in previous proceedings. This is especially so where the damages the plaintiff could recover are already limited. We would summarily dismiss Mrs Slaveska's claims arising out of Incidents 5 to 10 on the basis that they are an abuse of the Court's process.[11]

15 When Mrs Giles originally filed her s 29 application it was supported by one affidavit dated 12 May 2013. At the time of the Court of Appeal hearing on 6 November 2014, the application was supported by two further affidavits both dated 20 June 2013. However, by the time the matter was heard by me on 26 October 2015, the volume of material filed by Mrs Giles in support of her application had increased very significantly.

16 I have set out earlier in this judgment the exchange which took place between myself and Mrs Giles on 8 May 2015 during which Mrs Giles stated that she wished to 'take the details out of the actual application and put them into an affidavit'.[12] Taking this statement at face value, it indicated that Mrs Giles proposed to file one further affidavit in support of her application. This is reflected in the Court's order of 8 May 2015 which referred to Mrs Giles filing and serving 'any further affidavit in support of her application for orders under s 29'. In fact, Mrs Giles took the opportunity to file 10 further affidavits. Together with the annexures to these affidavits this material runs to hundreds of pages.

17 Mr Southall did not object to the admissibility of this evidence or submit that it went beyond the scope of the orders which were made by the Court on 8 May 2015. Notwithstanding the fact that the volume of the material filed goes well beyond that which was contemplated by the Court at the time Mrs Giles was given leave to file a further affidavit on 8 May 2015, I have considered the contents of the 10 further affidavits very carefully. In addressing the material contained in those 10 affidavits, I have endeavoured to act consistently with the overarching purpose of the Act which is to facilitate the just, timely and cost-effective resolution of the issues in dispute. Further, I have endeavoured to act consistently with the guidance provided by the Court of Appeal in Yara Australia Pty Ltd v Oswal:[13]

... But we would not wish it to be thought that a judicial officer at first instance must undertake a substantial inquiry when considering whether there has been a contravention of the Act. As the sanction for a breach will usually lie in an appropriate costs order, a judge may at the conclusion of the reasons for judgment immediately invite oral submissions as to why there should not be a finding that the Act was contravened. The judge may in a relatively brief way deal with that issue in providing succinct reasons for a finding that there has been a breach of the Act and how that finding affects the orders for costs that are to be pronounced.[14]

18 Mrs Giles' s 29 application was filed after the completion of evidence but prior to Pagone J delivering judgment. Plainly, Mrs Giles has a right to have her application heard and determined. However, any such determination must take into account the necessity for judicial resources to be deployed efficiently and in a manner which does not adversely impact upon the legitimate interests of other litigants. I have carefully considered the contents of the 13 affidavits filed by Mrs Giles in support of her application, while giving due weight to the guidance of the Court of Appeal in Slaveska of the importance of preventing the 'arduous re-agitation of claims associated with incidents examined at great length in previous proceedings'.[15]

19 One advantage of the approach adopted by Mrs Giles in filing separate affidavits dealing with separate subject matters in support of her application is that the individual affidavits assist in identifying the particular matters relied upon by Mrs Giles in support of her contention that the plaintiffs breached their overarching obligations under the Act. As such, I shall address matters raised by the affidavits filed by Mrs Giles.

Exhibit D5: Defendant's affidavit as to the real reasons for the plaintiffs' action

20 Mrs Giles, contends that the plaintiffs were dishonest as to the real reasons for bringing their claim against her. Mrs Giles contends that the real reason was to have the entire website, www.quarryfight.com.au, removed from the internet, as opposed to removing the particular words which were the subject of the plaintiffs' claims in defamation. Mrs Giles contends that the failure of the plaintiffs to honestly disclose the real reason for bringing the claim against her was a breach of their overarching obligation under the Act to be honest and truthful.

21 Mrs Giles' website was the vehicle by which she published seriously defamatory statements in respect of the plaintiffs. If the plaintiffs wanted to have the website shut down that is hardly surprising. Mrs Giles closed the website. It was not done as a result of any court order. Mrs Giles could, if she had been minded to do so, simply have removed from the website the defamatory statements.

22 Mrs Giles alleges a breach of the overarching obligations by reason of the plaintiffs' failure to disclose their intention of closing the website. Exhibit D5 includes candid statements on behalf of the plaintiffs disclosing their desire to have the website shut down. In his opening submission before Pagone J, Mr Southall referred to correspondence from the plaintiffs' solicitor to Mrs Giles on 19 August 2011. That correspondence sought the removal of the website as a matter of urgency.[16] Mr Jeffrey gave evidence in chief to the effect that his purpose in instructing Mr Smith, his solicitor, to send a letter to Mrs Giles was 'for the purpose of trying to stop the website'.[17] Plainly, there was no attempt on the part of the plaintiffs to conceal their desire to have the website removed. Mrs Giles' contention that the plaintiffs were dishonest by failing to disclose their intention to have the website removed is misconceived.

In spite of the entirety of the website not having been pleaded, the plaintiffs repeatedly refer to the entire website being on the internet for over a year and that it was the entire website that caused the plaintiffs' problems and concern...[18]

It is difficult to understand what point Mrs Giles seeks to advance. Plainly, the website was on the internet for over a year. What is equally clear is that the claim for defamation is confined to particular defamatory statements which were published by Mrs Giles via the website.

24 Mrs Giles summarises her position on this issue as follows:

The plaintiffs admitted that the principal purpose of the action was the removal of the entire website (in spite of having admitted that it was not defamatory). I contend they have tried to use this to get yet further unwanted financial benefit for themselves, and to try to drag me down further than they already had. Truth appears to be a very capricious matter to them. The removal of the words they specified as having found offensive (although true) was a ruse by which they ultimately obtained their real objective - the removal of the entire website.

The plaintiffs presented to the Court a statement of claim that purports to limit the case to defamation, relating to a very limited scope a small number of words on a very large website. However, they subsequently admitted in testimony and submissions that the removal of the entire website was the real purpose of the action.

The small number of publications were, in fact, innocuous, and the action was not about them at all. In addition I have proved that it was the entire website that the plaintiffs wanted pulled down and that this purported action in relation to defamation was the means by which they tried to accomplish their ultimate goal and hidden agenda and by which means they sought to penalise me for revealing who they were and what they were doing, or not doing, as the case may be.[19]

25 A number of observations may be made regarding the matters set out above. First, as with much of the material filed in support of her application, Mrs Giles has used the affidavits which she has filed in support of her application as a vehicle to repeat disparaging statements against the plaintiffs. Second, her statement that the publications on the website 'were in fact, innocuous'[20] discloses her failure to accept the findings of the Court of Appeal that the publications on the website constituted a serious defamation of the plaintiffs. Third, Mrs Giles fails to establish how any conduct on the part of the plaintiffs was in any way false and misleading.

Exhibit D6: Defendant's affidavit in relation to the plaintiffs' misleading and deceptive conduct

26 In a 42 page affidavit comprising 79 paragraphs and 18 exhibits Mrs Giles makes a raft of very serious allegations against the plaintiffs. At [4] of her affidavit she deposes:

This affidavit is particularly about the plaintiffs' breaches of their overarching obligations:

1. the plaintiffs' sworn testimony and, in particular, aspects that demonstrate that it was false and presumably knowingly so (which could be determined as being perjury);

1. evidence entered or given as both factual and true but that was actually deceptive and/or misleading; and

1. the plaintiffs' instructions to their legal team, and the plaintiffs' approval of their conduct.

I further contend that the plaintiffs' behaviour also demonstrates misrepresentation, breach of trust, contempt of Court, an abuse of process, and fraudulent intention, all going beyond "just" breaches of their overarching obligations.[21]

The above are but a small sample of the repeated efforts to erect a façade of honesty, decency and trustworthiness. It is my view that a Court should judge material presented based on an objective assessment of facts rather than one party's self-serving self-assessment of their own character. This affidavit, and the associated documentation, will demonstrate, Inter alia, repeated words and behaviour of the plaintiffs that is absolutely contrary to their claims of honest integrity. Now produced and shown to me and marked with the letters VG1 is a copy of further exhibits of their claim to a façade of respectability, including their assertions regarding their concern over their reputations. I will show you what the plaintiffs considered to be the "fair and honourable and honest way" and what their "faith" and "beliefs" are, and how they really "conduct themselves".[22]

28 In the proceedings before Pagone J, Mrs Giles was not permitted to put in issue the truth of the defamatory statements relied upon by the plaintiffs. However, Mrs Giles was permitted to put in issue the credit of the plaintiffs during her lengthy cross-examination of each of them. The plaintiffs had claimed aggravated damages. In support of this claim they pleaded unjustifiable conduct on the part of Mrs Giles. Prior to the commencement of the proceedings before Pagone J, Mrs Giles filed a notice pursuant to r 40.10 of the Rules. That notice permitted Mrs Giles to lead evidence, inter alia, with respect to the character of the plaintiffs. Accordingly, Mrs Giles was permitted to challenge the credit of the plaintiffs during cross-examination.[23] Having been permitted to challenge the credit of the plaintiffs, Mrs Giles seeks to re-agitate that same issue.

29 Under the heading 'Some of the plaintiffs' significant and deceptive hyperbole'[24] Mrs Giles sets out a raft of instances of alleged misleading evidence/conduct of the plaintiffs. Mrs Giles also identifies 49 separate matters in exhibit D6 which she contends constitute instances of alleged misleading evidence/conduct by the plaintiffs. Many of these matters were the subject of evidence in the proceedings before Pagone J. These 49 matters together with relevant transcript references from the proceedings before Pagone J are as follows:

The plaintiffs have not denied or refuted the allegations against them that they breached their overarching obligations.

The plaintiffs' religious beliefs and the consequential claim of truthfulness by the plaintiffs.

The plaintiffs' evidence that Mrs Giles contacted authorities on a daily basis.

The plaintiffs' evidence that Mrs Giles updated the website daily.

The plaintiffs' evidence that they could not obtain another work authority for 18 months.

Mr Jeffrey's claim that Mrs Giles had forced them into 8 years of litigation.

The statement to the Victorian Civil and Administrative Tribunal ('VCAT') that cases were continuing.

Gross exaggerations by David Jeffrey under oath including the following:

"the world can see it and the world are telling me they have seen it and industry wise, everybody knows about it";

"... and hurt feelings whenever he was out socialising"; and

"... there were site visits conducted because of the website ..."

Mr Curnow's evidence that Mrs Giles' property was less valuable than she claimed.

The evidence given in relation to the alleged meeting at Mr Curnow's office.

Evidence that Mrs Giles did not have a house on the property.

Mr Jeffrey's failure to provide straightforward answers.

Mr Jeffrey's claims that there has been no impact on the waterway.

The plaintiffs made false claims of having suffered financial detriment however the claim of injurious falsehood was dropped and there was no pleading of any financial loss by the plaintiffs.

The plaintiffs were deceptive about the quarry office plans.

The claims of any personal impact on the plaintiffs were false.

The plaintiffs failed to call any witnesses in relation to any injury to their credit or reputation.

Mr Jeffrey gave false evidence that the quarry was physically secured.

Mr Jeffrey claimed that Mr Giles wanted to accept the offer at mediation but Mrs Giles did not want to accept the offer.

The plaintiffs claimed that Mrs Giles had not succeeded in any VCAT applications.

Mr Jeffrey's statement that "we never seem to win anywhere" was incorrect.

The dishonesty by senior counsel about leave purportedly given by Beach J.

Claim by Mr Jeffrey that Mrs Giles mouthed "liar liar" at VCAT.

The plaintiffs gave differing evidence in relation to the quality of the rock products.

The evidence of any advice given to the plaintiffs by Victoria Police is hearsay.

Testimony by Mr Jeffrey that he was told by Mrs Giles' solicitor (Mr Callander) that Mrs Giles had "hoodwinked or bushwhacked" the plaintiffs.

Deception by the plaintiffs relating to an offer of compromise made by Mrs Giles.

The testimony of Mr Jeffrey that Mrs Giles had been removed from the property by Victoria Police.

The plaintiffs' counsel attempted to jeopardise Mrs Giles' case.

The apology given by Mrs Giles and the response of the plaintiffs.

The plaintiffs ensured that the judgment of Pagone J was put on the internet.

The claim by the plaintiffs that Mrs Giles had interpreted things not how they were, and the plaintiffs gave false sworn testimony.

The failure of the plaintiffs to consent to Mrs Giles' proposed amendment to her s 29 application.

Destruction of Mrs Giles' reputation and false allegations by the plaintiffs' legal team.

Ingrained behaviour of the plaintiffs and their legal team.

The plaintiffs' knowledge of exactly what they were doing due to their experience.

The repeated amendments to the statement of claim by the plaintiffs.

30 The overwhelming majority of items 1 to 49 were the subject of evidence as set out in the transcript references above. I do not propose to discuss each of the matters raised by Mrs Giles. To do so would be unwarranted in the circumstances. The serious allegations of misconduct which are made by Mrs Giles are subject to the Briginshaw[25] standard of proof.[26] I am not satisfied that in any instance Mrs Giles has discharged the onus of establishing that the plaintiffs gave deliberately false evidence or engaged in misleading conduct contrary to their obligations under the Act. Further, as is disclosed by the transcript references set out above, most of the matters relied upon by Mrs Giles were ventilated during the proceedings before Pagone J. It is not in the interests of justice to permit Mrs Giles to re-agitate those matters via her s 29 application.

Exhibit D7: Defendant's affidavit in relation to the plaintiffs' legal team's responsibilities and their breaches

31 Mrs Giles contends that the plaintiffs' legal representatives breached their obligations under the Act. In [3] of exhibit D7, Mrs Giles deposes:

I aver that each of the significant number of contraventions/breaches of overarching obligations and proper basis by the plaintiffs' legal team acting under the plaintiffs' direction, have significantly prejudiced my case, have deceived and misled the Court (including the Court of Appeal), have gained the plaintiffs costs and damages to which I contend they were not entitled and have evidenced a pattern of behaviour that I contend (1) demonstrates misrepresentation, breach of trust, possible fraudulent intention, (2) resulted in an abuse of process, which reveals contempt of Court, and (3) has gained the plaintiffs results that would not otherwise have been granted.[27]

The plaintiffs' Senior Counsel clearly expressed to the Court of Appeal that there were not the number of iterations of the plaintiffs' statement of claim that I say exist. Either:

1. he did not know - by not actually having settled each of those documents in spite of his name then being (therefore deceitfully) placed in each of those documents - and did not seek to discover the truth, or

1. he deliberately deceived the Honourable Justice Pagone and their Honours of the Court of Appeal (including the Honourable Chief Justice).[28]

The plaintiffs' Senior Counsel clearly expressed to the Court of Appeal that the website publications were false, entirely false, baseless and without foundation. Either:

1. he did know - by not seeking to discover the truth, or

1. he deliberately deceived their Honours of the Court of Appeal (including the Honourable Chief Justice), after not having pleaded any form of falsity, baselessness or lack of foundation before the Honourable Justice Pagone.

The plaintiffs' Senior Counsel should explain which of (a) or (b) in these two scenarios is correct. Either way these were, at best, two examples of breaches of his overarching obligations.[29]

34 There is no evidence to support Mrs Giles' contention that the plaintiffs' senior counsel misled the Court of Appeal in relation to the number of iterations of the plaintiffs' statement of claim. There are five versions of their statement of claim on the court file. The statement of claim was initially filed on 7 December 2011 comprising 30 paragraphs. An amended statement of claim was filed on 5 March 2012. It also comprised 30 paragraphs. However, it added more particulars of the claim, including of the specific publications and details relating to correspondence concerning the proposed purchase of land owned by an entity related to Mrs Giles. On 23 November 2012, the plaintiffs filed a further amended statement of claim which removed the third plaintiff, Casacir Pty Ltd ('Casacir'), as a plaintiff and deleted claims in injurious falsehood and for misleading and deceptive conduct. The consequence was that the number of paragraphs in the pleading was reduced from 30 to 16. On 27 March 2013, the plaintiffs filed a fourth version of the statement of claim. This version of the pleading added [9B] in the following terms:

Further or alternatively, the downloading and publication of the website publications is to be inferred from the following facts:

(a) the website publications were made on the worldwide web;

(b) the website publications were available to be viewed and downloaded by any member of the public at large, anywhere in the world.[30]

35 On 3 April 2013, the plaintiffs filed the fifth and final version of the pleading. This was identical to the pleading dated 27 March 2013 save for the removal of the reference to the pleading having been filed by consent, and the insertion of a reference to r 36.04(1)(b) of the Rules. Mrs Giles only filed one defence dated 23 March 2012. This pleading was responsive to the second version of the amended statement of claim dated 5 March 2012. The absence of any subsequent pleading on her part is an objective indicator that the subsequent variations to the statement of claim did not require her to file a further defence.

36 As noted above, on 23 November 2012 the plaintiffs filed a third version of the statement of claim. On the same day, Beach J made orders which granted leave to the third plaintiff, Casacir, to discontinue its claim and be removed as a party. His Honour also granted leave to the first and second plaintiffs to amend the further amended statement of claim to discontinue the claims in injurious falsehood and misleading and deceptive conduct. His Honour ordered that Casacir pay the defendant's costs of defending the claims made by it to be taxed in default of agreement on a party and party basis. Subsequently on 7 April 2014, Prothonotary Ratcliffe made an order by consent that Casacir pay Mrs Giles $10,000, being her costs of defending the claims made by Casacir.

37 Mrs Giles filed one version of a defence and has been paid, by consent, a sum of $10,000 in respect of the costs she incurred by reason of Casacir abandoning its claims against her. Mrs Giles has not been prejudiced by reason of there being five versions of the statement of claim. Notwithstanding that there were five versions of the statement of claim, the contents thereof only necessitated one defence being filed by her.

38 At [18], Mrs Giles deposes that the plaintiffs' senior counsel clearly expressed his opinion by snorting in derision in an entirely inappropriate manner.[31] This is correct. However, the transcript of proceedings records that Mr Southall immediately apologised for his conduct.[32] Save for this one incident, Mr Southall's conduct of the proceedings on behalf of the plaintiffs was exemplary.

39 At [19], Mrs Giles deposes in respect of her apology to the plaintiffs:

Further, the plaintiffs' Senior Counsel told the Court of Appeal as fact that:

One might even say that it would be better to have no apology at all, but that's an observation by me.

After I had given a sincere and heart-felt apology, the plaintiffs' Senior Counsel made that disparaging observation that, in his own words, is an observation representing his views, not those of his clients.[33]

40 If the Court of Appeal had considered that there was anything inappropriate in Mr Southall's submission as set out above, then the Court of Appeal was well placed to have dealt with the matter. It did not do so for the obvious reason that Mr Southall immediately qualified his submission by characterising it as an observation on his part.

41 Mrs Giles contends that the plaintiffs' senior counsel gave evidence both before Pagone J and in the Court of Appeal. As to the former, Mrs Giles refers at [20(a)] of her affidavit to a statement by Mr Southall:

The transcript of proceedings discloses that immediately thereafter Mr Southall proceeded:

I can say in submission for the benefit of the court and Mrs Giles ...[35]

As to the proceedings before the Court of Appeal, at [20(b)], Mrs Giles deposes to Mr Southall having made a submission:

... as is my recollection if I can give evidence from the bar table.[36]

Again, if the Court of Appeal had any problem with this submission they were well placed to do something about it. Plainly, on neither occasion set out above was Mr Southall purporting to give evidence.

42 It is unclear from the material filed by Mrs Giles how she contends there is any nexus between the conduct of which she complains and any loss or prejudice which she has sustained. Mrs Giles is the author of the defamatory statements which she published and which underpinned the Court of Appeal's damages award of $140,000. Nevertheless, she characterises the proceedings at first instance and on appeal as 'an entirely malicious prosecution and the plaintiffs' legal team knew it and twisted facts to benefit the plaintiffs, in spite of overarching obligations not to do so and in breach of their ethical requirements under law'.[37] This characterisation of the proceedings is entirely without substance. It serves to highlight her refusal to acknowledge her responsibility for the publication of seriously defamatory material on the website which she created.

Exhibit D8: Defendant's affidavit in relation to the plaintiffs having unnecessarily incurred costs

43 Unlike most of the material relied upon by Mrs Giles, the subject matter of this affidavit does enliven a field of inquiry which is of real potential relevance to the s 29 application. If, as a consequence of breaches of the Act, Mrs Giles could establish that she incurred costs over and above those which would otherwise have been incurred, she would have a sound basis for seeking compensation. The reality, however, is that the proceedings were conducted by the plaintiffs' legal representatives with commendable efficiency.

44 A cursory review of the transcript of proceedings before Pagone J discloses that Mrs Giles was extended considerable latitude in the conduct of her case. Her cross-examination of the plaintiffs was rambling and long-winded. Counsel for the plaintiffs was directed by Pagone J not to object to Mrs Giles' questioning but to let the cross-examination take its course.[38] In large measure, Mr Southall complied with this direction. Considering:

(i) that a full day of proceedings was taken up with a mediation over two half days;

(iii) further time was taken up with the Court's hearing and determination of Mrs Giles' application to amend her defence to allege truth;

(iii) Mr Southall had been directed by Pagone J to be fulsome in his opening submissions;[39] and

(iv) a total of eight witnesses were examined and cross-examined;

it cannot be said that the proceedings were conducted in anything other than an efficient manner.

Exhibit D9: Defendant's affidavit in relation to plaintiffs' claims in relation to Casacir, injurious falsehood and misleading and deceptive conduct

45 Mrs Giles' complaint in respect of the removal of Casacir as a plaintiff and the discontinuance of the claims for damages for injurious falsehood and misleading and deceptive conduct appears to be that:

(i) the plaintiffs falsely claimed to have removed Casacir as the third plaintiff and to have discontinued their claims in injurious falsehood and misleading and deceptive conduct; and

(ii) the plaintiffs continued to use Casacir as if it was still a plaintiff and continued to press the onerous claims of injurious falsehood and misleading and deceptive conduct as if they had never attempted to remove or discontinue them.

46 Mrs Giles' affidavit in support of the complaint summarised above is difficult to follow. I have set out earlier in this judgment the history in relation to the filing by the plaintiffs of various versions of the statement of claim, including the third version which deleted Casacir as a plaintiff and discontinued the claims in injurious falsehood and misleading and deceptive conduct. The removal of the claims in injurious falsehood and misleading and deceptive conduct was consistent with the plaintiffs' overarching obligations under s 23 of the Act to narrow the issues in dispute. Further, the removal of these claims reduced the length of the trial before Pagone J. As such, the removal was consistent with the plaintiffs' overarching obligations under s 24 of the Act to ensure that the costs of the proceeding were reasonable and proportionate.

47 I have referred earlier in this judgment to the sum of $10,000 which was paid to Mrs Giles pursuant to an order of Prothonotary Ratcliffe to compensate her for the costs thrown away by reason of her defending the claims brought by Casacir Pty Ltd. Although that costs order was confined to costs thrown away by reason of a discontinuance of the claim by Casacir, Mrs Giles has failed to establish that she incurred any additional costs (over and above those incurred in defending the claims of the third plaintiff) in defending the claims in injurious falsehood and misleading and deceptive conduct by the first and second plaintiffs. As I pointed out to Mrs Giles during the course of the hearing on 26 October 2015, her defence to the claims in injurious falsehood and misleading and deceptive conduct draws no distinction between the claims made on behalf of the first, second and third plaintiffs.[40] There is no evidence that the $10,000 which was paid to Mrs Giles to compensate her for the preparation of her defence to the claims in injurious falsehood and misleading and deceptive conduct brought by the third plaintiff, did not also compensate her for the costs of defending those claims as brought by the first and second plaintiffs.

Exhibit D10: Defendant's affidavit in relation to the excessive number of the plaintiffs' statements of claim

48 I have already set out above the history of the proceedings relating to the filing of various versions of the statement of claim by the plaintiffs and Mrs Giles' filing of a single defence. Insofar as the amendments to the pleadings had cost consequences as a result of the removal of Casacir as a plaintiff and the discontinuance of the claims in injurious falsehood and misleading and deceptive conduct, Mrs Giles has been compensated by the order that she be paid $10,000. It would, of course, have been desirable if there had not been multiple versions of the pleadings filed. However, to state this obvious proposition falls well short of accepting Mrs Giles' contention that the plaintiffs' conduct constitutes a breach of their obligations under the Act. The removal of Casacir as the third plaintiff and the removal of the claims in injurious falsehood and misleading and deceptive conduct was consistent with the plaintiffs' overarching obligations under ss 23 and 24 of the Act.

Exhibit D11: Defendant's affidavit in relation to the plaintiffs' claims that I threatened, blackmailed and/or used extortion to try to force them to buy the Shapher property

The following are some of my observations of the plaintiffs' breaches of their overarching obligations, and other deplorable conduct in relation to the offers for the sale of the Shapher property and their claims of aggravated damages as a result of the offers.[41]

50 The plaintiffs' claims for aggravated damages were rejected by Pagone J. His Honour dealt with the claims for aggravated damages comprehensively at [35] to [57] of his judgment. At [56] Pagone J stated:

...

I accept this evidence of what Mrs Giles 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 Mrs Giles 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 Mrs Giles' 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. [42]

51 Pagone J had the benefit of observing Mrs Giles give evidence in the witness box and being cross-examined in relation to the matters underpinning the plaintiffs' claims for aggravated damages. His Honour accepted Mrs Giles' evidence that her purpose in operating the website did not include the collateral purpose of placing pressure on the plaintiffs to purchase the Shapher land at an inflated price. The present proceedings provides no occasion for revisiting findings made by Pagone J.

52 Despite Pagone J's comprehensive findings in relation to the claim for aggravated damages, Mrs Giles now invites the Court to revisit precisely the same subject matter, and to make a series of adverse findings against the plaintiffs. Her affidavit contains a number of serious allegations, including:

• 'The plaintiffs made significant and unfounded claims';[43]
• 'The plaintiffs dishonestly told his Honour...';[44]
• 'This was pre-planned and deliberate deception';[45]
• 'The plaintiffs hid documents that revealed this fact';[46]
• 'Their submissions were deceptive and misleading';[47] and
• 'That is appalling conduct, is dishonest, misleading and deceptive, but sadly typical'.[48]

53 The fact that the plaintiffs' claim for aggravated damages was rejected does not mean that it was brought without any proper legal or factual foundation. Nothing in Pagone J's judgment lends support to such a finding. To the contrary, his Honour's judgment records:

On 31 July 2009 Shapher received a valuation from C.J.A. Lee Property Valuers and Consultants for the property at $600,000. On 2 February 2010 Mr Andrew Boer, solicitor of Moores Legal, wrote to the plaintiffs' solicitors on behalf of Shapher with an offer to sell the property at $1,201,684. The basis of this offer was explained in Mr Boer's letter as based on a pro rata value per acre of a property recently advertised for sale in Neerim South. A copy of the advertisement was subsequently supplied to the plaintiffs. It continued to express the view that Shapher should expect to receive compensation to enable the acquisition of a comparable property plus something by way of solatium and to cover the transaction costs. That very same offer was repeated by Mrs Giles directly to the plaintiffs' solicitors by letter dated 26 July 2010. On 15 February 2010 Mrs Giles had received a sworn valuation and report from Hay Property Group then valuing the property at between $680,000 (after taking account of the quarry) and $840,000 (before taking account of the existence of the adjoining quarry).[49]

54 Based on the matters set out above, it would appear that there was a 100% disparity between the valuation of the Shapher land provided by C.J.A Lee on 31 July 2009 and the $1,201,684 sought from the plaintiffs to acquire the land in February 2010. This disparity raises a legitimate question of whether the defamatory words which appeared on the website from August 2011 were intended to illicit an inflated price for the land. Pagone J concluded that this was not the case. Nevertheless, there was a proper factual and legal foundation for the claim in aggravated damages against Mrs Giles. If Pagone J had considered that there was not a proper factual and legal foundation for the claim he would have recorded this finding in his judgment.

55 Each matter in exhibit D11 which is relied upon by Mrs Giles could have been pursued by her during the proceedings before Pagone J. Mrs Giles filed a notice under r 40.10 of the Rules which Pagone J held permitted her to lead evidence as to, inter alia, the character of the plaintiffs. Mrs Giles' contention that the plaintiffs engaged in conduct of the type summarised above could have been pressed in the proceedings before Pagone J as part of an attack on the character of the plaintiffs. It is not in the interests of justice to permit Mrs Giles to re-agitate these matters in the present proceedings. In any event, I am not satisfied that the plaintiffs breached their obligations under the Act.

Exhibit D12: Defendant's affidavit in relation to the plaintiffs' failure to discover documents and the falsity of documents

The plaintiffs and their legal team failed to discover documents even though [sic] in their care and custody. They also failed to disclose their knowledge of those documents, and failed to have the required ongoing discovery and disclosure of documents...[50]

57 Mrs Giles alleges that the plaintiffs' senior counsel was dishonest when he submitted, based on instructions, that the plaintiffs had never been provided with a full copy of the Hay Property Group valuation. Mrs Giles contends:

... The full and complete Hay report was listed as document 19 in my amended affidavit of documents. If the plaintiffs did not have a full copy they would (or should) have asked for a full copy (especially given that they had asked for copies of their own documents)! ...[51]

58 There is no basis for the Court to conclude that the plaintiffs' senior counsel did not honestly convey to Pagone J his instructions when he stated that his clients had never received the full Hay Property Group report. I reject Mrs Giles' assertion that counsel was untruthful.

59 It is unclear what point Mrs Giles seeks to advance by raising this matter other than the allegation forming part of her wide-ranging attack on the honesty of the plaintiffs and their legal representatives. If Mrs Giles could establish that, by reason of the plaintiffs having failed to discharge their discovery obligations, she was prejudiced in the conduct of her defence this would be a matter which could justify orders pursuant to the Act. However, there is no basis for reaching such a conclusion. The Hay Property Group report is referred to in [49] of Pagone J's judgment. The document related to the plaintiffs' claim for aggravated damages, in particular, the contention that Mrs Giles published defamatory statements with a collateral purpose of placing pressure upon the plaintiffs to pay an inflated price for the Shapher land. This issue was resolved by Pagone J in Mrs Giles' favour. On no view can it be concluded that Mrs Giles suffered any prejudice in the conduct of her defence by reason of inadequate discovery on the part of the plaintiffs.

60 Mrs Giles alleges that 'the plaintiffs caused considerable costs by enlarging (rather than narrowing) the issues by falsely claiming aggravated damages because of my related party having offered its property for sale'.[52] Mrs Giles then proceeds at great length to try and make good the proposition that '... the plaintiffs must have instructed their Senior Counsel to mislead the Court in an attempt to divert matters away from correspondence that the plaintiffs did not want his Honour to see, to submit as fact that the plaintiffs had never received them, and even that they had no knowledge of them!'[53]

61 I have no hesitation in concluding that the material relied upon by Mrs Giles does not establish the very serious allegations she now makes against the plaintiffs and their legal representatives. The issues relating to the offer to sell the Shapher land are dealt with in detail in Pagone J's judgment. He records no findings critical of the plaintiffs and their lawyers of the type now sought by Mrs Giles.

Exhibit D13: Defendant's affidavit in relation to truth of website

62 As noted earlier in this judgment, Mrs Giles' defence does not plead the truth of the matters on the website. This was a consequence of Mrs Giles having accepted the advice of her senior and junior counsel, that to put truth in issue would significantly add to the length and expense of the trial. Pagone J rejected an application by Mrs Giles to amend her defence to plead the truth of the statements which he ultimately found to be defamatory. Notwithstanding this background, Mrs Giles now invites the Court, as part of the resolution of her s 29 application, to make findings that the statements found to have defamed the plaintiffs were truthful.

63 It is difficult to conceive of a more blatant abuse of the processes prescribed by s 29 of the Act. Doubtless, Mrs Giles perceives it to be in her interests to re-run her case on a basis other than that which was pleaded. However, it is plainly not in the interests of justice for her to be allowed to do so.

64 Mrs Giles' application for orders pursuant to s 29 of the Act is dismissed. I shall provide the parties with an opportunity to file submissions on the question of costs. I now turn to the balance of the matters remitted to the Court by the Court of Appeal for determination.

65 The plaintiffs seek a variation of paragraph 2 of the orders made by Pagone J on 23 May 2013, such that their costs for the defamation proceeding, including reserved costs, be paid on an indemnity basis. The plaintiffs seek indemnity costs on two alternative bases. First, pursuant to s 40(2) of the Defamation Act, by reason of Mrs Giles' failure to accept the plaintiffs' offer to compromise the proceedings for the sum of $40,000. Second, pursuant to r 26.08(2)(b) of the Rules or pursuant to the principles relating to Calderbank offers.

66 Section 40(2)(a) of the Defamation Act provides that if defamation proceedings are successfully brought by a plaintiff and costs are awarded to the plaintiff, a court must (unless the interests of justice require otherwise) order costs on an indemnity basis if the court is satisfied that the defendant unreasonably failed to agree to a settlement offer proposed by the plaintiff.

67 The plaintiffs submit that Mrs Giles' failure to agree to accept an offer to compromise for $40,000 plus costs and her agreement not to reinstate the website or another internet site concerning the plaintiffs was unreasonable. Mrs Giles acknowledged receipt of the plaintiffs' offer on 19 March 2013 but otherwise did not respond to the offer. The plaintiffs submit that her conduct in so doing was unreasonable for the following reasons:

1. the defendant had herself only a few months earlier - at a time when she was represented by a firm of solicitors and counsel, including senior counsel - agreed to compromise the proceeding for the same amount and on the same terms;

1. nothing occurred in the intervening period between the defendant's offer and the plaintiffs' offer that in any way reduced the plaintiffs' prospects of obtaining an award of damages of at least that amount;

1. the offer was in clear terms and left open for the period prescribed by the Rules;

1. as at the date of the offer, the plaintiffs' good prospects of obtaining an award of damages of at least $40,000 should have been apparent to the defendant given the stage of the proceedings and that her only real defence was a denial that the words bore the imputations pleaded, and in circumstances where she had only a short time earlier offered to compromise the proceedings for the same amount;

1. having regard to the damages ultimately awarded to the plaintiffs - well in excess of triple the plaintiffs' offer - that offer represented a significant compromise of their claim and it was unreasonable of the defendant not to have accepted it; and

1. the plaintiffs' offer was a genuine offer to compromise the full value of the claim which plainly reflected willingness to resolve the claim out of court. The defendant's failure to accept it, or at least to explore the prospect of settlement out of court at that stage by counter offer, was unreasonable having regard to the objects of the Act, the likely time and the cost of the impending trial, and the overarching obligation to use reasonable endeavours to resolve the dispute.[54]

68 I accept the submissions outlined above. In particular, when considering the reasonableness of Mrs Giles' refusal to accept the offer of compromise, it is legitimate to have regard to the fact that the Court of Appeal ultimately awarded the plaintiffs damages of $140,000. The $100,000 difference between the plaintiffs' offer of settlement and the damages ultimately awarded highlights both the reasonableness of the offer and the unreasonableness of Mrs Giles in failing to accept that offer. There will be an order setting aside paragraph 2 of the orders of Pagone J. In lieu thereof the Court shall order that the defendant pay the costs of the plaintiffs, including reserved costs, on an indemnity basis save only for those costs directly referable to the issue of aggravated damages.

69 The plaintiffs seek an order pursuant to s 60(1) of the Supreme Court Act for interest at a rate of 3.5% on the damages awarded of $140,000 from the commencement of the proceeding on 7 December 2011 until the date of the Court of Appeal's judgment on 24 April 2015.[55]

70 Section 60(1) of the Supreme Court Act provides as follows (emphasis in original):

The Court, on application in any proceeding for the recovery of debt or damages, must, unless good cause is shown to the contrary, give damages in the nature of interest at such rate not exceeding the rate for the time being fixed under section 2 of the Penalty Interest Rates Act 1983 as it thinks fit from the commencement of the proceeding to the date of the judgment over and above the debt or damages awarded.

71 At [57], the Court of Appeal (Warren CJ and Tate JA) stated:

... Given the confusion arising at the time of judgment, Jeffrey and Curnow should not now be precluded from persisting with an application for interest and we consider that it would be unjust not to permit them to do so. ...[56]

... During the course of the hearing of the s 29 application Giles can be afforded an opportunity to demonstrate that she has good cause why Jeffrey and Curnow should not be afforded the interest to which they are undoubtedly prima facie entitled. Any interest to be awarded would need to be calculated by reference to the award of damages that this Court determines is appropriate.[57]

73 Mrs Giles has not demonstrated that there is any reason why the plaintiffs should not be afforded the interest to which they are prima facie entitled. Accordingly, there shall be an award of interest pursuant to s 60(1) of the Supreme Court Act calculated by reference to the date of commencement of the proceedings on 7 December 2011 until the Court of Appeal's judgment on 24 April 2015. A rate of 3.5% per annum is appropriate in the circumstances.[58] However, as the plaintiffs submit, payments made by Mrs Giles during the relevant period must be taken into account.[59] It was agreed between the parties that Mrs Giles made the following payments between 7 December 2011 and 24 April 2015:

(k) $661.07 on 30 November 2013.[60]

74 Commencing with the amount of $140,000 and applying the rate of 3.5% per annum, the interest is as follows:

75 Damages totalling $140,000 were awarded: $75,000 to Mr Jeffrey and $65,000 to Mr Curnow. Accordingly, the total interest of $15,446.11 must be allocated as follows: $8,260.32 to Mr Jeffrey and $7,158.94 to Mr Curnow. There will be an order reflecting this outcome. However, prior to the Court making any orders the parties shall be afforded an opportunity to file written submissions, which are not to exceed 7 pages in length, as to the appropriate order for costs in respect of Mrs Giles' application. As the plaintiffs have been successful in resisting the s 29 application, it is appropriate that they should file submissions first and for Mrs Giles to reply. The Court directs that the plaintiffs are to file their submissions on costs by 4:00pm on 12 February 2016. Mrs Giles is to file any submissions in reply by 4:00pm on 19 February 2016.

[1] David Jeffrey & Anor v Virginia Giles [2013] VSC 268.

[3] David Jeffrey & Anor v Virginia Giles [2015] VSCA 70.

[4] Transcript of Proceedings, David Jeffrey & Anor v Virginia Giles (No.2) (Supreme Court of Victoria, S CI 2011 6654, McDonald J, 8 May 2015) T3 L23 - T4 L25.

[5] Transcript of proceedings, David Jeffrey & Anor v Virginia Giles (Supreme Court of Victoria, S CI 2011 6654, Pagone J, 11 April 2013) T128 LL12-13.

[6] Transcript of proceedings, David Jeffrey & Anor v Virginia Giles (Supreme Court of Victoria, S CI 2011 6654, Pagone J, 10 April 2013) T61 LL25-29.

[7] Transcript of Proceedings, David Jeffrey & Anor v Virginia Giles (No.2) (Supreme Court of Victoria, S CI 2011 6654, McDonald J, 26 October 2015) T36 L30 - T37 L1.

[8] [2008] HCA 34; (2008) 238 CLR 218.

[10] [2015] VSCA 140.

[12] Transcript of Proceedings, David Jeffrey & Anor v Virginia Giles (No.2) (Supreme Court of Victoria, S CI 2011 6654, McDonald J, 8 May 2015) T3 LL23-24.

[13] (2013) 41 VR 302.

[16] Transcript of proceedings, David Jeffrey & Anor v Virginia Giles (Supreme Court of Victoria, S CI 2011 6654, Pagone J, 10 April 2013) T47 L14 - T48 L7.

[17] Transcript of proceedings, David Jeffrey & Anor v Virginia Giles (Supreme Court of Victoria, S CI 2011 6654, Pagone J, 12 April 2013) T223 LL11-14.

[18] Exhibit D5: Affidavit of Virginia Giles in relation to "real reason for the plaintiffs' action" dated 18 May 2015, [10] (emphasis in original).

[19] Ibid [18]-[20] (emphasis in original).

[21] Exhibit D6: Affidavit of Virginia Giles titled "Defendant's affidavit in relation to plaintiffs' misleading and deceptive conduct" dated 25 July 2015, [4].

[22] Ibid [16] (emphasis in original).

[23] See for example Mrs Giles' cross-examination of Mr Jeffrey, Transcript of proceedings, David Jeffrey & Anor v Virginia Giles (Supreme Court of Victoria, S CI 2011 6654, Pagone J, 12 April 2013) T204 LL16-31.

[24] Exhibit D6: Affidavit of Virginia Giles titled "Defendant's affidavit in relation to plaintiffs' misleading and deceptive conduct" dated 25 July 2015, [17]-[27].

[25] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336.

[26] Singh v Nursing and Midwifery Board of Australia [2015] VSC 576, [42]-[46].

[27] Exhibit D7: Affidavit of Virginia Giles titled "Defendant's affidavit in relation to plaintiffs' legal team's responsibilities and their breaches" dated 18 May 2015, [3].

[28] Ibid [16] (emphasis in original).

[30] Further amended statement of claim amended pursuant to consent orders signed by the defendant and amended pursuant to rule 36.04 filed 27 March 2013, [9B].

[31] Exhibit D7: Affidavit of Virginia Giles titled "Defendant's affidavit in relation to plaintiffs' legal team's responsibilities and their breaches" dated 18 May 2015, [18].

[32] Transcript of proceedings, David Jeffrey & Anor v Virginia Giles (Supreme Court of Victoria, S CI 2011 6654, Pagone J, 16 April 2013) T459 LL25-29.

[33] Exhibit D7: Affidavit of Virginia Giles titled "Defendant's affidavit in relation to plaintiffs' legal team's responsibilities and their breaches" dated 18 May 2015, [19] (emphasis in original).

[35] Transcript of proceedings, David Jeffrey & Anor v Virginia Giles (Supreme Court of Victoria, S CI 2011 6654, Pagone J, 11 April 2013) T130 LL11-12.

[36] Exhibit D7: Affidavit of Virginia Giles titled "Defendant's affidavit in relation to plaintiffs' legal team's responsibilities and their breaches" dated 18 May 2015, [20(b)] (emphasis in original).

[38] Transcript of proceedings, David Jeffrey & Anor v Virginia Giles (Supreme Court of Victoria, S CI 2011 6654, Pagone J, 12 April 2013) T166 LL19-25.

[39] Transcript of proceedings, David Jeffrey & Anor v Virginia Giles (Supreme Court of Victoria, S CI 2011 6654, Pagone J, 10 April 2013) T5 LL1-3.

[40] Transcript of Proceedings, David Jeffrey & Anor v Virginia Giles (No.2) (Supreme Court of Victoria, S CI 2011 6654, McDonald J, 26 October 2015) T28 LL7-24.

[41] Exhibit D11: Affidavit of Virginia Giles in relation to plaintiffs' claim that "I threatened, blackmailed and used extortion to try and force them to buy the Schaffer property", [4] (emphasis in original).

[42] David Jeffrey & Anor v Virginia Giles [2013] VSC 268.

[43] Exhibit D11: Affidavit of Virginia Giles in relation to plaintiffs' claim that "I threatened, blackmailed and used extortion to try and force them to buy the Schaffer property", [9].

[49] David Jeffrey & Anor v Virginia Giles [2015] VSC 268, [49].

[50] Exhibit D12: Affidavit of Virginia Giles in relation to the plaintiffs' failure to discover documents and falsity of documents dated 20 May 2015, [6].

[54] Plaintiffs' Submissions filed 10 July 2015, [5] (citation omitted).

[55] Plaintiffs' Submissions filed 10 July 2015, 3-4 [9].

[56] David Jeffrey & Anor v Virginia Giles [2015] VSCA 70, [57].

[58] See, for example, Gluyas v Canby [2015] VSC 11, [53] (J Forrest J).

[59] Transcript of Proceedings, David Jeffrey & Anor v Virginia Giles (No.2) (Supreme Court of Victoria, S CI 2011 6654, McDonald J, 26 October 2015) T35 LL27-31.

[60] Email from Mrs Giles to the Chambers of Justice McDonald (copied to Mr Marcus Schivo), 26 October 2015 and reply email from Mr Marcus Schivo to the Chambers of Justice McDonald (copied to Mrs Giles), 28 October 2015.