Ken Smith & Associates - Caught in the Injustice System

Ken Smith & Associates (“KSA”) was the entity through which Ken Smith (“Smith”) operated. Smith’s correspondence goes out on the KSA letterhead. KSA’s name is in tramtracks of court documents. Phone calls are to its office. Service of documents is to its office.

The amount of information I could give about KSA and Smith is profound, so I have limited it to a few issues only. I can, if needed, produce the entirety of their conduct.

It was identified that legal persons had a significant responsibility to provide honest assistance to the court (in agreement with the legislation and Rules) [emphasis mine]:

His Honour: He has a duty to his client but he also has a duty to the court so if what I’ve said about 40.10 to you is wrong, even though it suits his client, he has a duty to tell me that I’m wrong about it.[1]

His Honour: … in addition to the duty you’ve got to your client… remember the duty you’ve got to the court.[2]

[A legal representative] would be bound by professional obligations such as duties to the court and to the law.[3]

KSA and Smith have been CASACIR’s solicitors for many years. The question was asked in examination by Southall at court: “Had Mr Smith been your solicitor and the Casacir solicitor for a number of years?” The answer, given under oath was: “He has”.

Smith acted for man X , man Y and CASACIR in relation to the tribunal actions and was, of course, a focal and fundamental part of the process given that, for example (but certainly not limited to):

all functions were performed by Smith or by others under his direction and oversight, and with his authority:
- all documents and correspondence were prepared by Smith in KSA’s name, some with the knowingly inaccurate content;
- they wrote, engrossed, prepared, filed and served man X , man Y and CASACIR’s documents, which contained inaccurate claims and denials;
- they wrote, engrossed, filed, prepared, filed and served man X , man Y and CASACIR’s 2 sworn affidavits for VCAT that knowingly contained significant incorrect claims and denials (the second affidavit of which was witnessed by Smith) – the truth about those documents was at the foundation of the later website publications, and man X , man Y and CASACIR’s later objections to the identification of the truth in the website publications was the foundation of their action against me in court;
- proceedings were initiated and/or defended by them – including by inaccurate representations; and
- they, either directly or by way of Kraan, instructed in the VCAT proceedings.

KSA and Smith, together with man X, man Y and CASACIR, each refused to comply with directions and orders of the tribunal so as to further impact my case. This issue became an issue on my previous website – and they denied having done so. Further, they stated that (1) it was defamatory to have said so, (2) that it was an injurious falsehood, (3) that it was misleading and deceptive, and (4) that it caused significant financial losses to man X , man Y and CASACIR. It was, however very true and they all continued the ignoring of directions and orders into and through the court processes. More will be said about that elsewhere in this website.

The fraudulent conduct of KSA and Smith at VCAT contributed strongly to the failure of enforcement orders against man X, man Y and CASACIR, and which resulted in the award of costs to man X, man Y and CASACIR, ultimately of over $110,000 in relation to the VCAT hearing and the appeal on VCAT costs.

Smith and KSA generally ran matters for man X, man Y and CASACIR outside of legal actions.

After Smith and KSA discovered my former website, and after man X, man Y and CASACIR had stated their objections to having the facts of their quarry activities revealed, Smith organised Barrister ABC (a short-term pseudonym required by court action) to provide advice on whether some information was defamatory. The result of those instructions was that Barrister used his forensic decision-making skills to author a letter – that letter contained many inaccurate claims and denials, one of which he personally knew to be untrue. Smith approved the letter, dated it 19 August 2011 and engrossed it and then posted it. He delayed posting it thereby ensuring that I received it after the time limit specified in it. He knew this letter contained a significant number of inaccurate claims and denials, yet persisted with it anyway. In that letter he instructed me to retract as false matters he knew to be true – which would have entailed me lying on my website which I refused to do. I addressed each item in the letter on the website as instructed – a fact which he and his team later used against me. Apart from matters that were true but which they denied and demanded be removed, there were no particularisations of anything on the website that they considered offensive.

Because I had not retracted the truth, Smith and KSA acted for their clients, man X, man Y and CASACIR, and took action against me for defamation, injurious falsehood and misleading and deceptive conduct. This was in spite of knowing that what was written on the website was both true and factual.

As part of the process, Smith of KSA prepared and signed a certification of proper basis in line with the demands of the Civil Procedure Act 2010 (“the CPA”):

42 Proper basis certification

(1) A legal practitioner acting for or on behalf of a party to the proceeding must file a proper basis certification which complies with this section in the following circumstances—

(a) on the filing of a party’s first substantive document in a civil proceeding;

…

(1A) In the case of a civil proceeding which involves allegations of fact, a legal practitioner making a proper basis certification must certify that on the factual and legal material available—

(a) each allegation of fact in the document has a proper basis;  

(b) each denial in the document has a proper basis;  

(c) there is a proper basis for each non-admission in the document.  

(1B) In the case of a civil proceeding commenced by originating motion seeking a particular legal relief or remedy, a legal practitioner making a proper basis certification must certify, as the case requires, that on the factual and legal material available—

(a) the claim in the document, or a response to a claim in the document, has a proper basis; or  

(b) the question posed by the party to the court in the document, or a response to a question posed, has a proper basis…. 

(2) A proper basis certification must be in accordance with the rules of court.

(3) For the purposes of this section, a determination by a legal practitioner—

(a) as to whether any allegation or denial of fact has a proper basis, on the factual and legal material available, must be based on a reasonable belief as to the truth or untruth of the allegation or denial; or  

(b) as to the proper basis of any non-admission is that the legal practitioner does not know, and therefore cannot say, whether a fact alleged or denial is true or untrue; or  

(c) as to whether any claim, response to a claim, question posed or response to a question posed has a proper basis, on the factual and legal material available, must be based on a reasonable belief that the claim, response to a claim, question or response to a question has a proper basis.

The proper basis certification signed by Smith was dated 5 December 2011, and was signed as knowing that:

each allegation of fact in the document has a proper basis.

The court then (1) trusted that the claims and denials produced, filed and swerved by Smith and KSA were truthful and (2) was led astray by the inaccurate misrepresentations.

Man X, man Y and CASACIR knew the correct circumstances at the quarry, as did Kraan (their planning specialist, project manager and general adviser). Man X, man Y, CASACIR and Kraan gave the information to KSA and Smith in the preparation of the documents, and Southall and Kaye settled the documents – they had all seen the folder of website downloads showing that what I had published was correct, including noting that there were photos proving what I said was true. Smith signed as knowing that the facts they claimed or denied were correct, so was misleading and deceptive in having signed the certification. It was all done knowing that their allegations were gravely dishonest, would actively mislead and deceive the court, did not have a proper basis, and were inaccurate at best.

KSA and Smith prepared an overarching obligations certification signed on behalf of man X , man Y and CASACIR, agreeing to the binding overarching obligations to (inter alia) be honest and to not do anything to mislead or deceive, or that may mislead or deceive – yet produced no less than 7 iterations of their statement of claim (one on average every 2.5 months) all of which contained a significant number of knowingly and deliberate inaccurate claims and denials. They produced them as being true and factual. Just a few of the inaccurate claims were that:

by flying over the site in a small aeroplane, blasting was held up. If that is true then I saved the lives of at least 6 people and saved vehicles and machinery from destruction because there were 5 people preparing the hole for blasting and a person operating an excavator nearby, as well as other vehicles and machinery;
that the website has stopped man X, man Y and CASACIR from obtaining a permit for an office block and weighbridge – whereas in reality, man X, man Y and CASACIR had held the endorsed permit for some 6 weeks prior to the fraudulent claim, and Kraan admitted to the community that the delay was actually caused by rain;
that the multi-million dollar company, CASACIR (which at that time owned and operated 4 quarries, 2 concrete plants and an asphalt plant), was basically worthless because of my previous website;
that the Neerim North property was also basically worthless in spite of it being acknowledged that it contained some $165m worth of resources;
that the authorities had checked man X, man Y and CASACIR’s sworn affidavits and testimony at VCAT, and yet the authority representatives swore under oath and/or affirmation in court that that was not true;
that man X, man Y and CASACIR had not been served with any 110 Notices for any lack of compliance, and particularly no 110 Notices for dust or blasting – when in fact man X , man Y and CASACIR had been served with Notices for both contraventions.

And so it went on and on with inaccurate claims, many of them absolutely outrageous and entirely unbelievable. Needless to say, they dropped a number of the claims and denials, but certainly not all of the inaccurate ones.

KSA and Smith repeatedly refused to comply with directions and orders of the court so as to further impact my case:

In one such instance, when ignoring directions from the court, Smith authorised the statement:

We do not agree to include Exhibit 2 because it is not relevant to the appeal or application[4].

This inaccurate claim was made in spite of his Honour having previously been extremely clear that Exhibit 2 was fundamental to both Smith’s clients’ case and my case [emphasis mine] (I was the defendant, Smith and Southall’s clients were the plaintiffs):

… 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 [man X and man Y]. 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.

Mr Southall, the matter may be quite important, it may be quite important because your client has placed great emphasis upon what it says has been a collateral reason of [her] to secure an outcome by putting something on the website to which she is not entitled. [Man Y’s] testimony seems to ignore a piece of evidence which might indicate that he has not come as openly about that matter as he ought to have. It may be significant. If it is significant, it’s also significant to do it properly, and I do want you to do it properly. At the moment I am, I must say, gravely concerned about how it is that you have been put in the position of not seeing a document which at the moment strikes me as being relevant to the heart of your client’s on aggravated damages without you knowing about it. [Man Y’s] evidence may be helpful, it may make things worse, but I’m still left with how it is that the very people instructing you – Mr Smith of Ken Smith  & Associates – had not brought to your attention apparently the letter from 16 March.

As well as pointing out the absolute importance of the documents, Pagone J pointed out the fact that (1) Smith and Southall’s clients (man X and man Y) had been dishonest about it in sworn testimony, (2) KSA and Smith had not revealed it to Southall, and (3) that there was something seriously wrong with what had happened. It is assumed that his Honour moving from the Supreme Court to the Federal Court stopped him from investigating the inaccurate claims himself.

Further, in relation to the issue of the above documents, when Southall inaccurately stated that he had no idea of the existence of them (he reviewed the documents just days prior to making this claim), Smith did not correct him as to some of the documents actually being in the affidavit of documents that KSA and Smith had engrossed, prepared, witnessed, filed and served – and were being used in court.

In another case, KSA and Smith were instructed to comply with court directions and orders regarding the filing and service of documents in relation to their application for extension of time/leave to appeal/appeal and they consistently ignored those orders and directions. Smith even authorised Schivo telling me that it didn’t matter if the instructions in the orders and directions were ignored, and he gave me permission to do as he and KSA were doing – ignoring the timeframes set by the court.

The affidavit of Smith dated 12 August 2013 (used in their appeal) was considerably devoted to the results of the VCAT case – this affidavit was to further the case that the VCAT hearing was integral to their application in support of their objection to my application for an extension of time for leave to appeal Pagone J’s judgment and order – this is in spite of Southall clearly declaring that he knew that the VCAT issues had absolutely no relevance, and to which Pagone J agreed [emphasis mine]:

His Honour: So what I’m saying to you is, each time you point to other consequences, like the Marshalls & Dent thing, which is not referable to the defamation.

Mr Southall: Yes, or the tribunal proceedings.

His Honour: Or the tribunal proceedings, of which there is a great deal and you wanted to put in even more.

In spite of hearing Southall and Pagone J’s discussion above, and in spite of having read the transcript, it also shows that KSA and Smith’s inaccurate misrepresentations at VCAT had widely reverberating and aggravating consequences into the defamation proceeding and appeal because KSA and Smith deliberately raised the issue again.

KSA and Smith were, of course, a focal and fundamental part of the court processes given that, for example (but certainly not limited to):

all documents and correspondence were prepared by Smith in KSA’s name, with the knowingly inaccurate content, and all functions were performed by Smith or by others under his direction and oversight, and with his authority:
they were part of the collaboration in the collusion to deliberately delay the finalising, filing and serving of the first statement of claim;
they were party of the collaboration in the collusion to deliberately conceal and delay the particularisation of the words they purportedly objected to;
they wrote, engrossed, prepared, filed and served the originating writ, and summons, which contained the inaccurate claim for injunctions which they knew they could not obtain as well as knowing that each claim had no proper basis and was inaccurate;
they wrote, engrossed, prepared, filed and/or served each of the first 5 iterations of the statement of claim, including with all their known inaccurate claims and denials (including each making the inaccurate claim for injunctions which they knew they could not obtain, and the last 3 iterations making such outlandishly inaccurate claims that the website had stopped them obtaining a permit they had already had in their possession for the past 6 weeks, the claim that Orica was going to deliberately blow up the benches that their own workers were still on but for me flying overhead in a aeroplane at that time, and that man X and man Y’s multi-million dollar company, CASACIR. was all but worthless due to the website and their Neerim North property was all but worthless because of the website when it had resources under ground that were worth some $165m);
they wrote, engrossed, prepared, filed and served each of the last 2 iterations of the statement of claim, still containing inaccurate claims (including the inaccurate claim for injunctions which they knew they could not obtain and the knowingly fraudulent claims that I had defamed man X and man Y);
they wrote, engrossed, prepared, filed and served a request for further and better particulars, knowing that the injurious falsehood and misleading and deceptive conduct causes of action and CASACIR would all be overtly withdrawn at a much later date, but covertly continued with, and which contained many claimed inaccurate “facts”;
they wrote, engrossed, prepared, filed and served answers to requests for further and better particulars, including with all their inaccurate claims and in fact exacerbating the inaccurate claims and denials of their statements of claim, including knowing that the injurious falsehood and misleading and deceptive conduct causes of action and CASACIR would all be overtly withdrawn at a much later date, but covertly continued;
they wrote, engrossed, prepared, filed and served man X and man Y’s affidavit of documents, knowing that there were documents within it that revealed that there were items that proved there was inaccurate content in their claims and denials;
they wrote, engrossed, prepared, filed and served man X and man Y’s notice to admit, knowing that there were items that proved there was inaccurate content in the claims;
they wrote, prepared, filed and served appeal books and fought to hide documents that revealed their conduct;
they wrote, engrossed, prepared, filed and served documents in relation to their response to my application under s29 of the CPA, knowing that there were inaccurate claims and that there were lies by omission;
they instructed at directions hearing in relation to my application under s29 of the CPA;
proceedings were initiated and/or defended by them – including by inaccurate representations;
they instructed in court proceedings;
they gave advice on my notice under r.40.10 of the Rules;
they produced a purported Calderbank offer, but which (1) only allowed 26 hours to make a decision, (2) which was threatening, and (3) which failed to meet the criteria of stating that it was “without prejudice other than for costs”;
they frequently colluded, collaborated and conspired with man X and man Y and each of the other members of the team and made decisions to support the inaccurate misrepresentations put forward as unequivocal fact;
they supported and instructed their clients’ case in mediations in court; and
they otherwise supported and instructed their clients in court and appeals.

Their own misleading and deceptive conduct and support of others’ such conduct commenced at the tribunal and continued into and through the trial, the s29 application and the appeals, and continues to to-date (as far as I am aware).

Their claims and denials were part of the inaccurate evidence and information that contributed to their clients being awarded $140,000 in damages, together with interest and costs (including on an indemnity basis), totalling hundreds of thousands of dollars at court.

KSA and Smith were each a crucial part of the various proceedings at court and actively assisted in the inaccurate use of material and information, thereby assisting in winning the cases for man X, man Y and CASACIR. KSA and Smith were grandly rewarded for their conduct, including for their inaccurate conduct, by being paid significant fees. Known fees paid to KSA and Smith for their inaccurate conduct, just in relation to some of the court and VCAT cases (without the un-yet bill appeal of the s29 application), is in the known total of $251,184.38 for their support of, and willing and knowing participation, collusion, collaboration and conspiracy in, inaccurate misrepresentations that perverted the course of justice.

Remember that this is just a snap-shot of their conduct.

[1] T61:16-19

[2] T64:17-18

[3] Email from the office of KSA under oversight of Smith (ref:KES:mac:22499), dated 19 November 2013 at 9.37am

[4] Email from one of Smith’s employees, Schivo, to me dated 13 May 2014 at 2.06pm