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.
This relates to the conduct of Marcus Schivo (see the page on the legalities that are supposed to oversee Schivo’s conduct, not just in court but generally as a solicitor)
Based on the information provided in the defamation hearing, but certainly not limited to that information, there should be an assessment of “unsatisfactory professional conduct” or “professional misconduct” in relation to Schivo.
In the document, Ethic in Litigation and Court Proceedings by Steve Mark, NSW Legal Services Commissioner[1], told the participants that: “In Australia there exists a positive obligation on all practitioners in Australia to ensure that their communications are courteous and that each practitioner avoids offensive or provocative language or conduct.”
In a 2015 court case, John Ribbands of counsel told their Honours of the Victorian Court of Appeal that: “And the only other matter, Your Honours, was the decision that I referred to of Orin v. Tarantello, the media neutral citation is 2009 VSC 143. It was a decision of His Honour Justice Beech arising from an ex parte application for an injunction before His Honour, ironically, Justice Pagone, and it involved an application for costs against the barrister and the solicitor who appeared and represented the applicant for the ex parte application, and in essence what was said at Paragraph 33 is that the solicitor owed the same duty as that owed by counsel in ensuring that there was full and fair disclosure of all material facts to the court, and relevantly involved an issue of a letter which was known to be to impact significantly on the discretion of the ex parte application which counsel didn’t bring to the attention of the court and the solicitor sitting there hearing counsel make those submissions, didn’t prompt counsel and also bring it to the attention of the court. So I referred that as being analogous to what we would say is an all-embracing obligation on the parties’ practitioners to bring those matters to the court’s attention.[2]” Schivo failed in doing so.
The fact is that Schivo commenced as a law graduate and then went on to become a lawyer, previously employed by KSA. His activities were under the supervision of Smith and he was known to take part in the 2013 trial, 2 appeals, my application under s29 of the CPA in relation to the unlawful conduct during the trial, and my appeal of the 29 determination.
Schivo is and was also bound by the law as particularly defined in the Australian Solicitors’ Conduct Rules[3], and other defining Rules. A simple read of the law that is supposed to govern his conduct reveals a lot of breaches that apply specifically to him. In fact, he significantly failed in many of the Rules in spite of his admitted knowledge that he had duties [emphasis mine]: “[A legal representative] would be bound by professional obligations such as duties to the court and to the law.”[4]
It was identified that legal persons had a significant responsibility to provide honest assistance to the court (in agreement with the legislation and Rules): Justice Pagone stated: “I will ask [the legal representative] at some point to make sure that what I am saying about 40.10 is not wrong. 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.[5] …in addition to the duty you’ve got to your client, … remember the duty you’ve got to the court.[6]
But the fact is, he ignored his known and identified professional obligations to a considerable extent where it came to issues with and against me. This claim is easily proved, with just some of the instances being briefly addressed below (copies of all documents and correspondence are available for proof of the truth should they be required).
Schivo[7] was a fundamental part of the process given that, for example (but certainly not limited to) documents and correspondence prepared by, and/or supported by, Schivo, and by his own active, and/or support of, fraudulent, deceiving and/or misleading and/or threatening conduct:
- he supported the letter of 19 August 2011 which was full of lies, contained threats, and which deliberately withheld the particularisations of the words they purportedly found offensive;
- he wrote, prepared, filed, served and/or supported each of the last 2 iterations of man X and man Y’s statement of claim, still containing fraudulent claims (including, but certainly not limited to, the fraudulent claims for injunctions and aggravated damages which he knew they could not obtain;
- he wrote, prepared, filed, served and/or supported man X and man Y’s affidavit of documents discovered, and in doing so, concealed some documents and/or parts of documents, thereby knowing that there were documents that were required to be revealed by law but weren’t provided; and also proving within that affidavit that there were items that proved there was fraudulent content in his clients’ claims and denials; and by using letters and emails marked variously with “in confidence”, “without prejudice” and/or “confidential” (all without discussion and/or permission);
- he wrote, prepared, filed and/or served man X and man Y’s notice to admit, knowing that there were items that proved there was significant fraudulent content in his clients’ claims, and using letters and emails marked variously with “in confidence”, “without prejudice” and/or “confidential” (all without discussion and/or permission);
- he directly instructed in most of the court proceedings;
- he wrote, prepared, filed, served and/or supported documents in relation to man X and man Y’s response to my application under s29 of the CPA, knowing that they had made fraudulent claims and that there were significant lies by omission;
- he 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 one of the major criteria for a Calderbank offer;
- he made fraudulent accusations against me to the court, and when I did a “reply all” and responded to the accusations by revealing what they had done, he accused me of defaming him, his clients and Smith when all I had done was reveal the truth;
- he lied in correspondence in relation to what was wanted to be added to an affidavit;
- he wrote, prepared, filed, served and/or supported appeal books and fought to hide documents that revealed his and his clients’ fraudulence – he oversaw the changed appeal book and he made, or approved, changes by his side done without tracking the changes. The appeal book therefore had documents that were crucial to my case removed without any notification and without any discussion, and the inclusion of documents that had not been agreed or even discussed. He told the Court of Appeal that he was withholding his consent to the inclusion of my exhibition 2. 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 he vigorously opposed its inclusion, and did so in breach of the order to include material for “each party”. Further, Exhibit 2 was also particularly relevant to the their case, and this provides yet another reason for its inclusion, a view clearly shared and communicated by Pagone J. As well as pointing out the absolute importance of the documents, Pagone J pointed out the fact that (1) man Y had not been honest about it in his sworn testimony, (2) Schivo had not revealed it to Southall) in spite of sitting at the bar table instructing him), and (3) that there was something seriously wrong with what had happened. I assume that his Honour moving from the Supreme Court to the Federal Court stopped him from investigating the fraudulent claims[8] Further, in relation to the issue of the above documents, when Southall fraudulently stated that he had no idea of the existence of them[9], Schivo did not correct him as to them being in the affidavit of documents that Schivo had helped prepare, file and serve. Exhibit 2 was exceedingly reluctantly included. In fact, Exhibit 2 was so detrimental to his clients’ case that its inclusion meant that they removed the issue from their appeal in order to try to remove the impact of the documents: “… 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[10]”;
- he deliberately denied that the iteration of 23 November 2012 was filed when it had been, and denied that other iterations were served and/or filed when each of them was certainly filed and/or served. He thereby consciously did not check to ensue that he was giving the right information in relation to the number of iterations in spite of witnessing Smith’s affidavit acknowledging the existence of each of the versions he denied existed. He took great offence at me pointing out the truth when I sent him an email seeking answers: “Please clarify a situation for me: You told me that you didn’t lie to the Court of Appeal because you were not at Ken Smith & Associates when some of the [7] iterations [of the Statements of Claim] were filed and/or served and you stated that you therefore did not know if they had been filed and/or served. There are a number of problems with this attempt at logic and excuse. Firstly, I had made claims as to the number of iterations that were certainly served (and most of which were filed), and yet you claim you did not seek to discover whether what I alleged was true or not, but just made as absolute fact statements that my claims were false. Secondly, it appears that you did not ask Ken [Smith] if any of the iterations had been filed and/or served (he could have told you because each of the iterations is listed in Ken’s affidavit (albeit that he tried to minimise, mislead and deceive by falsely claiming that some were drafts when they were not which is giving false evidence in a sworn affidavit)). Thirdly, either [man X man Y and/or CASACIR] approved your actions or you acted without their consent because your clients’ file obviously shows that all the iterations that I claimed were filed and/or served, were in actual fact filed and/or served. Please clarify the true situation because whichever is the factual case, you failed in your duty to the Court to be truthful and to not even try to mislead or deceive, and you lied to the Court of Appeal and see nothing wrong with that. And you have the audacity to cast blame and aspersions on me for revealing the truth!”
- having given me an amount his clients were willing to accept to finalise some costs, upon my acceptance of the amount he had given me, he then changed and increased the amount significantly;
- he insisted on proceeding with a directions hearing when the result was exactly that which I had proposed in proposed consent orders but, because the hearing proceeded, he forced me to incur the additional costs of the hearing and his clients’ barrister;
- he has at times been nasty, down-right rude, denigrating and insulting to me, and on many occasions was even vindictive and bullying to me;
- he has tried to defame me to the court;
- he has tried to intimidate me by threatening warrants against me if I didn’t jump to his schedule rather than an agreed schedule;
- he tried to bully me into signing agreements that had not been agreed to;
- he initially refused to accept money by instalments, then told me that after payments were made that his office would certify that they were paid. However, once the amounts were paid, he denied having made the offer to certify payment;
- the affidavit of Smith dated 12 August 2013, witnessed by Schivo, was considerably devoted to the results of the VCAT case and the results of the fraudulent representations of man X, man Y, and their legal team (including Schivo himself) – that affidavit was to further the case that the VCAT hearing was integral to their appeal of the damages in relation to defamation – this is in spite of Pagone J clearly stating that the VCAT issues had absolutely no relevance, and to which Southall agreed, with Schivo instructing [emphasis mine]: Pagone J said: “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”. Southall answered: “Yes, or the tribunal proceedings”. Pagone J responded: “Or the tribunal proceedings, of which there is a great deal and you wanted to put in even more”[11]. It also shows that the fraudulent conduct of the man X, man Y and CASACIR, and their legal team, at VCAT had widely reverberating and aggravating consequences;
- he revealed his contempt for the court when he repeatedly refused to comply with court directions and orders, and he conducted himself in that manner so as to additionally further detrimentally impact my case. In fact, when confronted by me over having deliberately ignored court directions and orders, he sarcastically thanked me for pointing out that he was late in his service of an ordered document. Further note his attitude to compliance towards orders when he said he allowed me to be late and that being late and non-compliant made no difference whatsoever. It might have not made any difference to the documents, but it certainly made a difference in relation to compliance (his email to me of 15 February 2016 states: “Thank you for reminding everybody about [my failure to meet the timeline given in the orders]. 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” – he has clearly stated his opinion that failures to comply have “no effect whatsoever”, and this attitude was repeatedly proved by repeatedly ignoring a number of directions and orders);
- he was strictly instructed by me not to contact my previous costs lawyer, but contacted him in spite of being told he was no longer acting for me. When I confronted him over having done so, and said that I would be contacting Smith about it, Schivo replied that it was good that Smith was away and that my email would therefore be ignored. Interestingly, Schivo’s employment at Ken Smith & Associates terminated not long after that (I make no illusions as to the reason).
- the Court of Appeal gave clear directions regarding man X and man Y’s application for an extension of time for leave to appeal, yet Schivo (1) deliberately delayed serving me with the required documents until the court demanded for a second time that he serve me, and (2) deliberately delayed filing certain documents until the court demanded for a second time that he file them;
- he supported and instructed his clients’ case in mediations, in court, and otherwise supported and instructed his clients in relation to the matters between them and me; and
- in spite of the provable facts, he has denied that he or any of them had done anything wrong.
Schivo was a crucial part of various proceedings, actively assisting in the fraudulent use of material and information, the concealing of documents, as well as the lies, and misleading and deceptive conduct perpetrated against me thereby assisting in winning the cases for his clients. In fact, his conduct contributed strongly to man X and man Y being awarded $140,000 in damages, together with interest and costs (including on an indemnity basis), totalling many hundreds of thousands of dollars at court.
Therefore, Schivo was a definite part of the injustice perpetrated against me and also against the court.
[1] In his presentation to the Australian Young Lawyers Stream on 18 September 2009
[2] T110:18–T111:8 (6 November 2014)
[3] A Law Council of Australia document.
[4] Email to me from Schivo (then of the office of Ken Smith & Associates, man X, man Y and CASACIR’s solicitors), dated 19 November 2013 at 9.37am
[7] To a later and lesser extent – and only in relation to court
[8] Two of the documents were in the affidavit of documents discovered that were sworn to by man X and man Y, which was prepared, filed and served by Schivo.