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.
Man X, man Y and CASACIR, and their legal teams, had an on-going propensity to ignore orders and directions that was not limited to VCAT – they also ignored court orders and directions. This is an endemic pattern of behaviour as evidenced herein. The judiciary should not have been surprised though, given man X, man Y and CASACIR, and their legal practitioners’, history with orders and directions, and given Schivo and Southall’s personal clearly expressed attitudes. Some of their breaches of orders and directions, and therefore revealing their contempt of the court are listed below.
They fraudulently claimed[1] that my former website had falsely stated: “[That each of man X, man Y and CASACIR had] interpreted orders made by the Tribunal how [they] wanted to interpret them rather than how they should be interpreted”. And they clarified their stance[2] that: “[Man X, man Y and CASACIR] did not interpret orders made by VCAT how [they] wanted to interpret them rather than how they should be interpreted. All orders made by VCAT were implemented and followed by [Casacir, man X and man Y] ….” and “It is incorrect to allege that Casacir has interpreted orders made by the Tribunal how it wanted to interpret them rather than how they should be interpreted. All orders made by VCAT were implemented and followed by [Casacir, man X and man Y]…”
What I actually said in the website was: “Casacir (and therefore ([man X and man Y]) did not comply – again – this time with the Order. The excuse they provided today was that we had previously given dates [which they had not!] and therefore implied that they felt that they had the right to ignore that part of the Order. How pathetic, and again, interpreting thing how they wanted to”.
Let’s again see who told the truth:
Man X, man Y and CASACIR received a 2009 VCAT order granting them a permit to operate the quarry subject to very specific conditions. However, the truth is that man X, man Y and CASACIR exhibited a number of areas in which they demonstrated wrongful interpretation of VCAT orders and interpreted the conditions as they wanted to (a few of the many are listed here):
- Some of the conditions varied depending on whether the quarry was in “construction” or “use”. Man X, man Y and CASACIR applied an interpretation of the meaning of these two classifications that was inconsistent with the definitions provided in the permit, where the order and permit clearly stated that “use” was “the process of extracting, drilling, moving, processing (including but not limited to rock crushing and breaking) and transporting rock”. However, man X, man Y and CASACIR showed their interpretation of these activities (extracting, drilling …) as being in “construction” and not “use” when they wanted to so interpret it – this was evidenced in their affidavit dated 6 September 2010 which was sworn by man X with the admitted approval and authority of man Y and CASACIR. Man X further acknowledged under oath at the enforcement hearing that they commenced removal of overburden on 16 August 2009 [if not before], and that some of that rock from the drillings that commenced on 10 September 2009 was later sold, making 16 August 2009, or at the latest, 10 September 2009, the actualcommencement date of the “use” – but they claimed that “use” commenced 13 November 2009 when material went out the gate for sale – this is in spite of the 2008 members’ being very clear that the commencement of “use” was not “material out the gate”. But man X, man Y and CASACIR continued to use their own interpretation regardless – in fact, it has been pointed out that they did so in the full knowledge of their deceit when Kraan notified Peter McWhinney on 6 October 2009 that they knew that the blasting and drilling works claimed to be “construction” were actually “use”.
- Man X, man Y and CASACIR undertook to only use the specific drill identified at the VCAT hearing, namely the Atlas Copco Silenced ROC D9C SmartRig drill and, as a result of their undertakings, the VCAT order stated that that was the drill that had to be used. However, they admitted that they used a totally unsilenced drill for the first 4 to 6 months, and even then the silenced drill was often not used after that, thus interpreting the orders that they didn’t have to use the drill they nominated if they didn’t want to – regardless of the orders.
- And there were orders relating to other issues such as (but certainly not limited to) dust, noise and water, which were largely ignored.
The truth is that they also exhibited a number of other areas in which they clearly ignored VCAT orders (only summaries are provided):
VCAT orders for service of documents in 2008
In spite of the order that documents be filed and served no later than 10 days prior to the hearing, Kraan and Smith, on behalf of man X, man Y and CASACIR, failed to comply with this order, with the majority of documents being served late, and some of the listed documents not served at all, ever.
VCAT orders for service in relation to the 2010 water claim against them for their illegal work on Kookaburra Creek
VCAT ordered that CASACIR (and therefore man X and man Y) file and serve documents by a certain date. Not only did they not file or serve all the required documents, they completely ignored the orders in relation to a particular document they deliberately set out to conceal. VCAT sent them letters and further orders, and those letters and orders were ignored. VCAT held then held a compliance hearing against them and those orders were again ignored. Further VCAT letters were sent to them and those letters too, were ignored. A further compliance hearing was threatened before man X, man Y and CASACIR finally complied. Under oath at the Supreme Court man Y tried to avoid admitting to the non-compliance with those VCAT orders:
Me: It’s document 32 in the notice to admit and there are preceding ones. So if we actually look at documents 29, 30, 31, 32 and 33. … [man Y], under the, “Hearing type”, what does it say, please?
Man Y: Under?
Me: “Hearing type”, what does it say, please?
Man Y: Directions hearing.
Me: No, we are on document 32 which is – – -?
Man Y: I’m sorry, I’m on 29.
Me: 29 is the prelude to it, it’s says compliance hearing. It’s compliance hearing, they are compliance orders because Casacir hadn’t fulfilled the orders and letters from VCAT and even so, there was another requirement in document 33 for a further letter from VCAT before it was finally complied with. So I ask you again, has Casacir not complied with orders? Is that an interpretation that you don’t have to actually comply?
Man Y: You are asking me had I, not Casacir?
Me: You are a director of Casacir, Casacir can’t stand there and do something on its own, it’s an entity, not a person.
Man Y: I’m not suggesting that it can but I’m unfamiliar with this document.
Me: So not everything that goes on at the quarry is told to you then perhaps?
Man Y: Certainly not everything in the day to day, that’s why it has a general manager.
Me: I would have thought a compliance – – – .[3]
It was here that Southall clearly identified and revealed his attitude to VCAT orders by interrupting my cross-examination of man Y and then setting out to minimise man X, man Y and CASACIR’s non-compliance with the VCAT orders by trying to make the orders seem insignificant [emphasis mine]:
Mr Southall: Your Honour, I rise to object because the cross-examiner is conflating something about compliance by the quarry with an order – with directions of an interlocutory nature. Does Your Honour have that order in front of you? It says this, and this is part of the objection because the cross-examiner is conflating it in her cross-examination to [man Y] with non-compliance with the operation of the quarry in certain respects. The orders are that: “The respondent must file and serve its list of documents by 3 August 2010, inspection by 10 August 2010. 2. Respondent must file and serve its expert reports by 9 August 2010. Leave to the applicant to file and serve any further material in reply as soon as possible”, and that’s before Senior Member Walker at VCAT and it’s a hearing type called a compliance hearingand that’s consequent upon a document coming from the senior registrar which says at the heading: “Non-compliance with VCAT orders, notice of directions hearing. It appears from the tribunal’s file the following directions have not been complied with. Respondent, failing to file expert evidence by 5 July 2010; respondent failing to file list of documents by 10 May 2010″, and then it says the direction hearing’s been convened and listed on 22 July 2010 which is the provenance of the matters that I read out to you earlier.
Pagone J: So what’s the problem with the question?
Mr Southall: The question, in my respectful submission, as has so often happened during the course of cross-examination, particularly of [man Y] by [her], is that she is – is the word segueing or going from one topic of alleged non-compliance in this case with what I submit are the most ineffectual, inoffensive sorts of everyday direction orders made at VCAT into the conduct of the quarry and non-compliance with the quarry by others who are meant to be under your control and not under your control.
Pagone J: I don’t understand what the objection is. What’s your objection? It may be a good objection, I just don’t understand it.
Mr Southall: The objection is that the question is unfair.
Pagone J: Because?
Mr Southall: Because it’s too generalised, it’s not related to a specific issue of non-compliance.
Pagone J: Could I ask you, Mr Southall, can you identify the question which you tell me is unfair.
Mr Southall: The question, the preceding question emanated from a statement by the cross-examiner, …, about these documents at 29 and 30, I think, of her discovery which are referred to as different numbers in the notice to admit.
Pagone J: I tell you what, Mr Southall, the last question that had been asked was: “So not everything that goes on at the quarry is told to you then perhaps.” Then your client answered: “Certainly not everything you in the day to day, that’s why it has a general manager.” That was the last question and that was the last answer.
Mr Southall: The question related to orders of VCAT, non-compliance with orders at VCAT.[4]
Note particularly that Southall is sharing his personal attitude that “…non-compliance in this case with what [he] submit[s] are the most ineffectual, inoffensive sorts of everyday direction orders made at VCAT into the conduct of the quarry and non-compliance with the quarry…”. This not only clearly identifies Southall’s personal attitude with respect to VCAT directions and orders himself, but proves he strongly aligns with man X, man Y and CASACIR’s failures to comply. Regardless of whether Southall, man X, man Y and CASACIR consider that the orders were “just” “everyday” orders which can, according to them, be ignored, they were nonetheless orders of VCAT, and were orders which were ignored. Further, the VCAT member felt so strongly about the non-compliance that he initiated compliance measures that showed that he did not consider them to just be “everyday” kinds of orders that could be ignored.
Further, you can clearly see that Southall’s claims that “it’s too generalised, it’s not related to a specific issue of non-compliance” is fraudulent and absolute and clear nonsense since it is obvious from those very same documents that they relate to the very specific issue of failure to comply with orders relating to the filing and serving of documents related to that particular case – a case where man X, man Y and CASACIR had diverted the flow of Kookaburra Creek in an illegal and absolutely unauthorised manner – that was a legal action that had been necessitated against them to try to obtain remedy for that illegal and unauthorised act. It is also to be noted that man X, man Y and CASACIR (with the able assistance of Smith and Peake) then went on to commit fraud by signing a document that they would restore the flow and would never interfere with it again – they had no intention of restoring the flow in the short-term (and did not do so until further legal action was threatened) and had every intention of not only interfering with the flow again, but had the full intention of destroying the flow, the spring that fed it, as well as the upper catchment and aquifers. This was blatant, deliberate and knowing fraud.
VCAT ordered that smith, on behalf of man X, man Y and CASACIR, contact me and my related parties to determine a date for the hearing that was jointly suitable, but they repeatedly failed to contact us, thus ignoring the orders.
VCAT sent orders and directions for man X, man Y and CASACIR to contact me to gain agreed suggested dates for the hearing, and to then notify VCAT of the suggested dates. There was no attempt by man X, man Y and CASACIR to contact me so, having failed to get them to supply me with a list, I then sent a list of dates that were suitable for me to VCAT. Even when man X, man Y and CASACIR finally decided on some dates suitable to them, they did not approach me for agreement.
VCAT orders for service in the enforcement action against them in November 2010
In spite of the order that documents be filed and served no less than 10 days prior to the hearing, and in spite of Kraan’s clear undertaking that all documents would be served at least 10 days prior to the hearing, Kraan and Smith, on behalf of man X, man Y and CASACIR, failed to comply with this order and undertaking, with all the documents being served late, and with one document not being served at all (that document was deliberately concealed until the very last day during the sworn testimony of man X, where the document was produced and used as being a relevant document in spite of my objections).
The court is very clear that all orders and directions must be complied with.
The Supreme Court (General Civil Procedure) Rules 2005[5] state: “64.21 Directions and powers of Associate Judges and the Registrar (1) The Registrar or an Associate Judge may at any time of his or her own motion or on application give directions in relation to an appeal, application or other proceeding in the Court of Appeal”
The Honourable Justice Dixon was clear that [emphasis mine]: “Any practice of not obeying court directions … was contrary to the overarching obligations.”[6]
The orders of Beach J dated 24 February 2012 in relation to replies
The order handed down by the Honourable Justice Beach dated 24 February 2012 required that that man X, man Y and CASACIR, together with Southall, Smith, and Kaye, reply to my defence on or before 5 April 2012: “4. By 4.00 p.m. on 5 April 2012 the Plaintiffs file and serve their reply”, but they did not file any reply on or prior to that time and date; nor did they advise that they were not intending to so file. This occasioned my then legal team having to waste time and my costs instigating the question, then receiving man X, man Y, CASACIR, Southall, Smith, and Kaye’s response. Their further failure occasioned the need for a response to that letter in regard to my request for further and better particulars, which resulted in further otherwise unnecessary correspondence and in unwarranted costs.
The orders of Beach J dated 24 February 2012 in relation to requests for further and better particulars
His Honour made orders that man X, man Y and CASACIR, together with Southall, Smith, and Kaye, file and serve their requests for further and better particulars by 18 April and that the answers must be filed and served within 14 days of the request: “5. The parties file and serve any request for further and better particulars of pleading by 4.00 p.m. on 18 April 2012. Any answers thereto must be filed and served within 14 days of the request”. Because they had not advised me that they were not going to file a reply, and because I had been waiting for that reply before I did my request for further and better particulars, I did not file my request until 20 April 2012 (after receiving their letter telling me that they were not going to file a reply and giving permission for me to file at that later date). That meant that they had to file and serve their responses to my requests for further and better particulars on or prior to 4 May 2012. On 1 May 2012 my then legal team wrote to them and reminded them that the responses were required and that I would require two weeks after receipt to be in a position to go to mediation. They further delayed until 4 May 2102 (the very day their answers were due) to advise me that they were not intending to so file or serve on time (in further breach of the order). At that time man X, man Y, CASACIR, Southall, Smith, and Kaye advised me that they were asking for an extension because man Y and Kraan were purportedly unavailable (and presumably neither had any access to a fax machine, a telephone or email). It further appeared from the letter that there had been absolutely no attempt to have any of them even commence to respond to my requests prior to this date. This occasioned my legal team having to respond to that letter, which resulted in further unnecessary correspondence and further delays, all resulting in further unwarranted costs. Their delays also meant that the mediation could not take place in compliance with the order.
The orders of Beach J dated 24 February 2012 in relation to mediation
His Honour ordered that man X, man Y and CASACIR, together with Southall, Smith, Schivo, and Kaye, organise mediation to take place on or before 11 May 2012 [emphasis mine]: “…6. The proceeding be referred to a mediator to be appointed by agreement between the parties,…7. Such mediation be held on or before 11 May 2012. … 9. Subject to terms of this order, the solicitors for the Plaintiffs shall take all necessary steps to ensure that the mediation commences on the date and time appointed and deliver a copy of all pleadings to the mediator”. They waited from 24 February until 26 April 2012 (2 months) before even suggesting mediators or dates. And they repeatedly caused delays to the mediation, a number of the delays occurring without reason given (in spite of being asked for the reason). The delays were in yet further breach of the order and evidenced absolutely no effort to minimise delays, shorten the time taken, resolve or limit the issues – quite the contrary and all in breach of their overarching obligations, and proving that their claims of not failing to comply with orders was fraudulent.
The orders of Beach J dated 23 November 2012
The Supreme Court (General Civil Procedure) Rules 2005[7] state [emphasis mine]: “36.02 Failure to amend within time limited – An order giving a party leave to amend a document shall cease to have effect if the party has not amended the document in accordance with the order at the expiration of— (a) the time limited by the order for making the amendment; or (b) if no time was limited, 21 days from the date of the order”. His Honour handed down an order directing man X, man Y and CASACIR, together with Southall, Smith, Schivo, and Kaye, to create, file and serve a new (5th) iteration of their statement of claim that withdraw every one of their claims of injurious falsehood and misleading and deceptive conduct, and withdraw CASACIR as a plaintiff. Because the order did not have a compliance date on it, the 21 days limit applied. Therefore, the date on which a new statement of claim implementing the withdrawal of CASACIR and every one of the injurious falsehood and misleading and deceptive conduct claims of man X, man Y and CASACIR, was to be filed and served that was on or prior to 14 December 2012. In what is sadly typical fashion, they did not so file or serve. In fact, Southall told Pagone J as absolute truth on 10 April 2013[8] that 7thiteration of their statement of claim (dated 2 April 2013 – 109 days after it had, by law, to be filed and served) was created in order to apply the order of Beach J made 23 November 2012 – proving they had not only ignored the order, but also the law.
The Court of Appeal gave clear directions regarding man X, man Y and CASACIR’s application for an extension of time for leave to appeal
Man X and man Y, together with Southall, Smith, Schivo, and Spencer, completely disregarded court directions by: (i) failing to serve the Summons that they were directed by the court to serve on me by 14 August 2013; (ii) failing to file or serve their Affidavits in Support that they were directed by the court to file with the court and serve on me by 18 August 2013; (iii) failing to file or serve their Outline of Submissions that they were directed by the court to file and serve by 18 August 2013. They did not file until 23 August 2013; and (iv) telling the Court, as absolute fact, that they would serve the documents on me on 25 August 2013, but then not doing so until 26 August 2013 (12 days after they were first directed to serve the documents on me) and that service was by way of facsimile, thus causing me unnecessary costs by the use of considerable paper and ink (356 pages).
The Court of Appeal gave clear directions regarding man X and man Y’s application for leave to appeal
The court’s directions informed man X, man Y Southall, Smith, Schivo, and spencer of the need for inclusion of all exhibits tendered during the trial [emphasis mine]: “The Judicial Registrar requires all exhibits that were tendered at the lower court hearing to be included in the Notice of Proposed Content of Appeal Book.[9] 1. Any exhibits or pleadings which were tendered as evidence in the lower court hearing must be included.[10]” The court clarified the situation in a communication that included the order from JR Pedley [emphasis mine]: “7.1 include documents eachparty wishes to rely on in both proceedings …[11]” The communication was absolutely clear that the material was to include documents that either party wished to present as grounds for appeal. Man X, man Y, Southall, Smith, Schivo, and Spencer, had been directed to assemble one appeal book that incorporated material jointlyrepresenting man X and man Y, and me. However, they attempted to use the order by JR Pedley in a fraudulent manner that they implicitly argued gave them grounds to not include material unless it was relevant unless it related solely to their appeal, stating: “We do not agree to include Exhibit 2 because it is not relevant to the appeal or application…. Ms Woon’s [direction] has been overtaken by JR Pedley’s order of 26 March 2014 which provides that only those exhibits that relate to / are relevant to a ground or proposed ground of appeal are to be included[12]”.
I had very clearly communicated that Exhibit 2 was fundamental to my grounds of appeal, and therefore it unequivocally must be included from the outset, but they vigorously opposed its inclusion, in breach of the order to include material for “each party”. Further, Exhibit 2 was also particularly relevant to the their case, and this provided yet another reason for its inclusion, a view clearly shared and communicated by Pagone J [emphasis mine]: “… but the documents tendered by [her] were plainly relevant to [man X and man Y’s] case and the documents received by them ought to have been discovered by [them]. In my view they bear fundamentally upon the conclusions which [man X and man Y] seek the Court to draw about circumstances surrounding the publication of defamatory words which are said to justify an award of aggravated damages. The making of offers in February and March 2011 upon terms that built upon what had been offered by [man X and man Y] is, at the very least, an important step in the chain of circumstances reflecting upon [man X and man Y]. The documents ought to have been particularised is only as part of the documents said to be part of the correspondence from which the Court could evaluate the extent to which [she] was said to have been seeking inflated prices.[13] [14]”
They chose to ignore the directions (and order) of the court to include material relevant to both their and my grounds. They were subsequently and specifically ordered to include Exhibit 2 and very reluctantly eventually did so. In fact, Exhibit 2 was so important to their case that its inclusion meant that they removed the issue from their appeal: “… and we don’t rely, by the way, you may have read in the judgment there was considerable reference by His Honour to the negotiations over certain land. That point is no longer relied upon[15]”.
Court orders in relation to timing of service and filing
Schivo, under the supervision of Smith, acting for man X and man Y, sarcastically thanked me for pointing out that he was late in the service of an ordered document. Further note his attitude to compliance with orders when he said heallowed me to be late and that it made no difference. It might have not made any difference to the documents, but it certainly made a difference in relation to compliance: “Thank you for reminding everybody about this. I have no problem with you filing your submissions by&5pm this coming Friday, or even sometime on Saturday or Sunday. It really has no effect whatsoever[16]”.
Timing of Green’s documents in my application against them
Green, subsequently acting for man X, man Y and CASACIR, failed to file or serve their notice of appearance in time, and further did not file their defences and did not seek to have permission for any such delay, in time.
Timing of Green’s documents in summary dismissal
Green, acting for man X, man Y and CASACIR, admitted that he had breached the orders of Daly AsJ dated 17 September 2019, and he did so by agreeing that he had served the documents on 25 September rather than on 24 September, in spite of his document being dated 17 September 2019 – thereby making it a totally unnecessary, but sadly typical, breach.
Rashleigh’s documents in summary dismissal dated 17 Sept 2019)
Rashleigh acted for Southall and Smith in an action against them; his documents were ordered to not exceed 3 pages in length – however, in blatant breach, his submissions were 4 full pages in length, and he additionally provided an additional affidavit of 12 pages – a further breach of orders.
Summary
I have provided some of the ways that man X, man Y and CASACIR, and their legal teams, have ignored both directions and orders of, not just VCAT, but of the courts, and that, according to Dixon J, was a contravention of their overarching obligations. Further, It is appalling to note that they claimed that I was defamatory for pointing out that they had interpreted orders as they want to at VCAT and that they had failed to comply with orders and directions[17]. Theirs’ is ingrained and endemic behaviour, and it was not defamatory to have revealed it, but both truth and fact. Their interpretations and blatant disregard to compliance with directions and orders must surely be considered to be contempt of court, and their claims fraudulent.
Clearly they have made further fraudulent claims and denials, and, as we have seen, this is nothing new. The above is a strong indication about how relaxed they feel about making collaborated fraudulent claims and denials, and why they won the VCAT cases and costs, and also won hundreds of thousands of dollars in court in damages, interest and costs, including by some of them determinedly colluding to commit fraud.
[1] at 11(j)/17(j)/26(j), 12(c)/18(c)/27(c) and 19(r)/28(r), variously written, approved, authorised and settled, by man X, man Y, CASACIR, Smith, Southall /or Kaye
[2] at “As to [man X] …” 20(j)/29(j), “As to [man Y] …” 20(c)/29(c) and “as to CASACIR …” 20(r)/29(r), variously written, approved, authorised and settled, by man X, man Y, CASACIR, Smith, Southall /or Kaye
[3] T273:5-T274:3 (before Pagone )
[4] T274:4–T276:2 (before Pagone )
[5] Whilst the 2005 iteration was in use at the time, this rule is identical in the new 2015 iteration.
[6] “‘Timeliness in the Justice System’ Forum Reflections on recent cases and s 29 of the Civil Procedure Act 2010”, page 17
[7] Whilst the 2005 iteration was in use at the time, this rule is identical in the new 2015 iteration.
[8] T51:18-19 ( (before Pagone ) – at which time Southall also further lied and misled and deceived Pagone J regarding the circumstances about, and the purposes for, that iteration being created.
[9] Email from Sarah Woon of the Court of Appeal Registry, dated 16 October 2013
[10] Email from Sarah Woon of the Court of Appeal Registry, dated 11 November 2013
[11] Email from Sarah Woon of the Court of Appeal Registry, dated 17 March 2014, also included in the orders of JR Pedley.
[12] Email dated 13 May 2014 at 2.06pm.
[13] Judgment Reasons at [54]
[14] In fact, the letter of 16 March 2012 had indeed been discovered by them as it was in their Affidavit of Documents to be Discovered. Further, I stated this in closing (T589:5-9)
[15] T42:20-23 (6 November 2014)
[16] Schivo’s email to me dated 15 February 2016
[17] Statement of claim, at paragraphs 11(j) and 12(c).