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.
Court action has necessitated the removal of the name of this barrister and the replacement of it with “Barrister ABC”
Barrister ABC acted for CASACIR in the preliminary stages of the VCAT matter, P2421/2009 certainly on 18 and 25 September and 20 November 2009. On 18 September 2009 Barrister ABC actively ignored and excused the fact that his client had already blasted instead of waiting for a determination by VCAT. This, in part, resulted in costs against my related parties in the sum of in excess of $10,000 in relation to those two matters, which inturn reverberated into the enforcement application which resulted in CASACIR being awarded in excess of $110,000 in costs, and which further reverberated into the Supreme Court and Court of Appeal with the end result that his clients were awarded a total of close to $1m all-in.
Barrister ABC also acted for CASACIR in the W38/2020 VCAT water claim against them at VCAT. Barrister ABC acted on behalf of CASACIR at a compliance hearing held on 27 July 2010 – this non-compliance hearing was held because CASACIR had continued to refuse to file or serve its list of documents and specialist witness statement, and had not said when or even if it would be serving or filing the documents. Further, at the hearing Barrister ABC told the member (apparently based on instructions from his instructor) that the reason Craigie’s witness statement was not yet provided was because it was not yet completed, when in fact (apparently unbeknownst to Barrister ABC) it had been completed a month and a half earlier – as evidenced by the relevant bill of costs and the dated front page of the specialist’s report. The excerpt from the bill of costs served under letter dated 15 March 2013 stated (detailing the costs paid to Craigie 6 weeks prior to VCAT being told the witness statement was not done:
Item 41 7/6/10 Expert Witness Statement of N M Craigie in relation to surface water matters
Thereby revealing that the witness statement had been in fact not only ready for filing and service some 6 weeks earlier than Barrister ABC was instructed to tell the member as fact that it was not ready, but that Craigie had even been paid for his work at the time – therefore, the claim that the witness statement was not ready was clearly untrue (and costs were also included in the bill of costs as being paid to Peake for settling the report on the same date “7/6/10 Paid to Mr G Peake of counsel his fee to settle Statement”).
The letter of 19 August 2011, was used prolifically in both the Supreme Court and Court of Appeal in 2013, 2014 and 2015: Barrister ABC was apparently contacted by someone from CASACIR’s team and commissioned to prepare a letter to me which contained significant misrepresentations, claims and denials in response to my website. In the Ken Smith & Associates (“KSA”) bill of costs, served under letter to me dated 8 March 2017, the following were claimed:
Item 1: Email to [Barrister ABC] forwarding statement from [my] website with instructions to advise as to the defamatory nature of same.
Item 2: Scanning email from [Barrister ABC] forwarding proposed special letter to [me]. …
Item 4: Payment to [Barrister ABC] of counsel for the preparation of that letter of demand in the sum of $550.00 (GST inclusive).
There were no specific instructions listed as to what to put in the letter – therefore, it could reasonably be assumed that Barrister ABC made the claims and denials under instructions (as claimed) but without having taken the time to check the facts.
While the letter was prepared by Barrister ABC (the only reason I knew that Barrister ABC had anything to do with the letter was because the bill of costs identified him) under unknown instructions, it was actually signed by Ken Smith of KSA (and was acknowledged at the Supreme Court as ultimately being from Ken Smith), inter alia, it:
- erroneously claimed that Heath Curnow was a director of CASACIR – when he was not;
- erroneously claimed that CASACIR was not an acronym for Crush Any Shit And Call It Rock – and that such an allegation that that was the acronym was defamatory (when it had already been admitted as being such an acronym at VCAT, and was then later admitted at the Supreme Court by Southall (as replacement legal representative), as well as by the CASACIR directors under oath;
- erroneously claimed that Kraan had not admitted to the acronym at VCAT – and that such an allegation that Kraan had admitted to the acronym at VCAT was defamatory (see above);
- erroneously claimed that there was defamatory information on the website – without having identified or particularised any of the purported material (and the website was true);
- erroneously claimed that his clients had not distorted facts, and that such an allegation that that they had so acted was defamatory – whereas, the website revealed that they had indeed repeatedly, consistently and falsely distorted facts, and it was there in the website downloads for Barrister ABC to see when he prepared the letter (this conduct was later continued by KSA as well as by CASACIR and its directors into the court cases);
- erroneously claimed that his clients had not actively misled the tribunal, and that such an allegation that that they had so acted was defamatory – whereas, there were so many issues in which CASACIR misled the tribunal, but one of note is in relation to the drill, which was amply revealed in the downloads (including with photographs);
- erroneously claimed that his clients had not sold rock that was substandard, and that such an allegation that that they had sold rock that was substandard was defamatory – whereas, it was later made by admissions under oath that this was a fact and that engineers had had disagreements with CASACIR over the lack of quality. Further, Kraan admitted in at least two of his own documents that lower quality rock was sold by CASACIR for roads;
- erroneously claimed his clients did not do anything illegal – when they had broken the law; had blatantly and repeatedly disregarded their permit and work authority conditions; had continued to disregard the planning scheme; had unlawfully and without authorisation, diverted the flow of Kookaburra Creek; had taken and used water from Kookaburra Creek and the dam without a permit to take and use the water; and more. It was even very reluctantly admitted under oath that CASACIR had done the works on Kookaburra Creek without a permit and that they knew the law demanded that they had to have a permit prior to commencing the works;
- erroneously claimed that his clients had not ignored the orders and directions of the tribunal – when they had done so repeatedly and it was later effectively admitted under oath in 2013, with Southall also admitting CASACIR had done so while trying to pretend that it was not a big deal (“… [the] 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”). Additionally, as noted above, Barrister ABC actually acted for CASACIR in the 2010 non-compliance hearing and was aware that this claim was inaccurate.
The letter Barrister ABC was instructed to write, and has admitted writing, with all its erroneous claims and denials resulted in it being used in a manner that perpetuated man X, man Y and CASACIR’s fraud and significantly assisted his clients in gaining many hundreds of thousands of dollars awarded to them in damages, interest and costs. That letter was responsible for the resulting catastrophic impacts of its use.
Mr Mark Schofield of Nicholas O’Donohue and Co recently told me that Barrister ABC “acted in accordance with his instructions”, meaning that he apparently did not make the usual forensic decisions a barrister typically makes, and that Smith, man X, man Y and CASACIR gave the instructions to him to provide the lies and erroneous information that so biased the tribunal and courts against me. I beg to differ on the instructions (my opinion only) given in that the bill of costs provided by Smith shows his clear instructions were to just provide advice.
Barrister ABC’s known fees have not been significant: a total of over $4,000 were acknowledged (but this does not include the unknown fees for the water claim action)). Regardless, the impacts of his representations have been significant, and continue to reverberate.
I have not sought to malign Barrister ABC’s name or reputation in any manner, but have just stated the situation as I see it and as documents reveal it to me.
In settling the claim against me, Barrister ABC stated that he didn’t care what I said about him under this alias! Really!? Well, here goes.
Because Barrister ABC claimed that I had called him a dishonest barrister (which I had not), Dixon J said that, I had to prove that what Barrister ABC said was true (i.e. that Barrister ABC was indeed a dishonest barrister):
You have to identify what it is – what are the matters that the court needs to inquire into to reach the conclusion that it is true to say that he was a dishonest barrister[1].
Let’s go to the third imputation, ‘That he was a dishonest barrister’. Now, how are you going to put that, …? What do you say are the material facts that we would enquire into in deciding whether or not [Barrister ABC] was a dishonest barrister? How do you say it’s true that he was a dishonest barrister? How was he dishonest?[2]
The test is what would the ordinary, right-thinking reader of this think? They’d think you were saying he was dishonest. Ordinary, right-thinking people would think that it is dishonest to push fraudulent claims in a manner that perpetuates a fraud. Honest people don’t do that[3].
How are you going to say that [Barrister ABC] is a dishonest barrister? What are you asking the court to inquire into, to reach that conclusion[4]?
Before this I hadn’t looked on him actually as having been a dishonest barrister. However, by Barrister ABC taking this action against me, and by Dixon J forcing me me to address the issue, I had to look more deeply and thoroughly at Barrister ABC’s conduct, particularly in the current case. So, what I had subsequently prepared to tell the court were some of the ways in which I had perceived (in my opinion) that Barrister ABC was a dishonest barrister:
- My webpage clearly stated that Barrister ABC was commissioned by his instructors (Smith, Jeffrey, Curnow, and CASACIR) to write the fraudulent claims in the letter dated 19 August 2011 (see the relevant webpage about the letter). Barrister ABC agreed that this was the situation, yet he brought this action against me as if I did not make that concession in the webpage, thus being dishonest;
- Regardless of his instructions, Barrister ABC chose to insert the claim that it was defamatory of me to claim that CASACIR and its directors were guilty of having failed to comply with VCAT orders and directions when he had personal knowledge of their continued failure to comply (because he acted for them in the non-compliance hearing) and that such a claim by him was knowingly fraudulent, thus being dishonest;
- Barrister ABC claimed responsibility for having written the letter then, when called to account for its contents, claimed that he only acted under instructions:
- in spite of having the legal duty to be independent and use his forensic decision-making skills notwithstanding any instructions to the contrary – thereby Barrister ABC claimed to only act as an unthinking mouthpiece of his instructors;
- the bill of costs detailing his instructions was prepared by an independent costs lawyer and the item was based on the instructions as read from the instructor’s file – proving that the file told a completely different story to Barrister ABC, making Barrister ABC’s claim dishonest;
- Barrister ABC claims that he had no clear memory of his instructions, yet then almost immediately claimed his instructions were in accordance with the letter he drafted – this is a dishonest account of what happened;
- Barrister ABC made many claims as absolute fact that had no proper basis, and actively misled and deceived the court, thus being dishonest;
- Barrister ABC has exhibited conduct that was capable of constituting unsatisfactory professional conduct and professional misconduct, thus being more than “just” dishonest;
- Barrister ABC added claims to his pleadings without having sought the court’s permission to do so, including, but certainly not limited to, by claiming injurious falsehood when he had to right to make such claims when he had not pled those claims – by so doing he abused the court’s processes and wasted significant amounts of the court’s and my time and resources. Further, in spite of clearly and unmistakably inserting injurious falsehood into his submissions dated 25 May 2021[5] (and unmistakably stating that the responsibility for proving his case rested on him), his Honour, Dixon J noted that when he questioned Barrister ABC, that Barrister ABC had assured the court that there was indeed no claim for injurious falsehood:
But it ought to be clear to anybody reading that statement of claim that it does not make out a claim for injurious falsehood. … I offered [Barrister ABC] the chance to do that, but he now says, ‘No, no, it’s just defamation[6],
thereby proving that Barrister ABC had been clearly and unmistakably and deliberately dishonest in what he had claimed;
- Barrister ABC has sworn to the truth and accuracy of 2 affidavits in the knowledge that some of what he swore as being the truth and accurate was in fact knowingly false, inter alia:
- Barrister ABC claimed he was engaged to write the letter dated 19 August 2011, but the bill of costs from his instructor (who claims everything he can and much of what he can’t) details different instructions;
- In the full knowledge that he was complaining about what I said happened at the 27 July 2010 tribunal non-compliance hearing (required because of his former clients’ non-compliance with the tribunal’s orders and directions), Barrister ABC selectively ignored that date and what happened and deceptively refers instead to one of three unrelated 2009 tribunal hearings[7] at which he represented CASACIR and its directors, falsely indicating that he had no other dealings with the tribunal on his former clients’ behalf;
- Barrister ABC misleadingly indicated he did not take any part of the water claim proceeding at the tribunal when he was actually a pivotal part of his former clients avoiding enforcement orders and paying costs, thus being dishonest about his participation;
- Barrister ABC claimed that, although he was advised of the webpage in 2018 by Spencer, and was advised at that time that it contained (purportedly) defamatory material about him, he claimed he was too busy to look at it. As a self-proclaimed defamation specialist barrister, such a claim is so unlikely to be true as to cast considerable doubt on Barrister ABC’s honesty on this front alone – it is my contention that he claimed to not have read the webpage in order to by-pass the very strange internet download “publication” rule[8] – if this is true it makes his claim not only dishonest, but underhanded and a further abuse of the court’s processes;
- Barrister ABC provided a selectively cut exhibits and produced them as being the entire documents;
- Barrister ABC knowingly and deliberately lied about what I had said in my publication;
- Barrister ABC does appears unable to provide correct dates for correspondence when he refers to it;
- Barrister ABC twisted words I had said and used communications made in private to his solicitor as if they were out in the public domain;
- Barrister ABC falsely claimed that I had removed names of lawyers from my website and that it was only he that I had named (falsely trying to present himself as a victim and martyr). A simple look at the website reveals this to be an outright lie and falsely sworn statement;
- Barrister ABC claims that he didn’t write the letter using his own forensic decision-making skills and only wrote it under clear instructions (which I dispute), but then claims that it was defamatory or me to say that if his claim was true (that he only wrote what he did under instructions) then he didn’t use his forensic decision-making skills!
- Barrister ABC swore to one number of allegations in his first affidavit then swore to a very different number in his second – both can’t be true;
- Barrister ABC swore that I had accused him of being incompetent – while I had never made that accusation, or even insinuated it, it appears that it was very true nonetheless when you look at the case he brought against me (see this page and the webpage “The 2021 action against me”);
- Barrister ABC made claims that CASACIR had taken me on for defamation when it had not done so and, in fact, could not ever do so given that it was an excluded company (it had more than 10 employees);
- Barrister ABC continued to bring a series of matters that were totally unrelated into his affidavit (and which were either twisted or untrue in his telling of them);
- Barrister ABC swore his second affidavit the day after it was filed according to the date of swearing and the date of filing! Amazing feat that;
- Barrister ABC acknowledged that he was liable for the crime of perjury for anything false he wrote!
and then he stated he would be relying upon all those falsely sworn claims. This is a criminal offence, in addition to being dishonest;
- Barrister ABC approved the signing of consent orders in the full pre-knowledge that he would not be complying with them (and he refused to comply with them) – he was therefore guilty of disobedience contempt, in addition to being dishonest by inaccurately inferring his intention to comply; and
- Barrister ABC has shown himself to be recklessly indifferent and uncaring about the truth and will make claims that best suit him regardless of the facts, thus being dishonest.
Inter alia, each of the above contributes to indeed making Barrister ABC a dishonest barrister in my opinion.
[1] T6:10-13 (9 November 2021)
[5] Paragraph 1: “The claim is based on the tort of injurious (or malicious) falsehood”, and paragraph 2: “The plaintiff must establish: (1) a false statement of or concerning the plaintiff’s goods or business; (2) publication of that statement by the defendant to a third person; (3) malice on the part of the defendant; and (4) proof by the plaintiff of actual damage (which may include a general loss of business) suffered as a result of the statement”
[6] T41:31–TT42:2, T42:10-12 (9 November 2021 before Dixon J)
[7] 18 or 25 September, or 20 November 2009.
[8] The rule that publication occurs at the date of download, not when it is uploaded and made available on the internet for viewing and/or downloading.