Brothel Gate Day 1 Full Day

1MR DEVRIES: 2

May it please Your Honour, I appear for the

plaintiff in that matter.

3HIS HONOUR:

Thank you Mr Devries.

4MS SOFRONIOU:

May it please the court Your Honour,

5

Rena Sofroniou for the 2nd and 3rd defendants by

6

counterclaim.

7HIS HONOUR:

Thank you Ms Sofroniou - Sofroniov?

8MS SOFRONIOU: 9

Sofroniou or variations all welcomed Your

Honour - - -

10HIS HONOUR:

(Indistinct).

11MS SOFRONIOU: 12HIS HONOUR: 13

- - - I've heard them all, that's fine. That's all right.

Now is there any appearance of

the defendant?

14MR DEVRIES:

It appears not Your Honour.

Until I turned up to

15

court it wouldn't have surprised me that he wasn't here

16

because he hasn't turned up to other proceedings.

17HIS HONOUR:

Yes.

18MR DEVRIES:

Other courts, but there's a number of persons who

19

are here in response to subpoenas that he's issued which

20

would seem to suggest that it's possible that he may

21

turn up.

22

he's usually early.

Although I've got to say when he does turn up

23HIS HONOUR:

Is he?

24MR DEVRIES:

Perhaps at the very least Your Honour if he could

25

be called out to (indistinct).

26HIS HONOUR:

Yes.

27MR DEVRIES:

It's a bit difficult - - -

28HIS HONOUR:

I'll ask - - -

29MR DEVRIES:

It's a bit difficult getting to this court.

30

lost on the way here because of corridors that are

31

closed off and so (indistinct) been removed.

1.MJ:ASC 02/12/08 2Cressy

FTR:1

1

I got

DISCUSSION

1HIS HONOUR:

Yes well this courts have been undergoing

2

renovation for as long as I've been here and this

3

(indistinct) doesn't make life any easier.

4

associate call Mr Johnson outside court.

5

Johnson if you would.

6MR DEVRIES:

If Your Honour pleases.

7HIS HONOUR:

Thanks Mr Richards.

8

Harold James

I take it you're the

defendant?

9MR JOHNSON: 10

I'll have my

Yes, defendant (indistinct) counterclaim

(indistinct) Your Honour.

11HIS HONOUR:

Yes thank you Mr Johnson.

You may be seated.

12MR JOHNSON:

Thank you.

13HIS HONOUR:

The other - Mr Devries and Ms Sofroniou have

14

announced their appearances.

Now Mr Devries there are a

15

number of, I think you've told me, there are a number of

16

people subpoenaed by Mr Johnson is that right?

17MR DEVRIES:

There are Your Honour.

18HIS HONOUR:

Yes.

19MR DEVRIES:

I'm obliged Your Honour I believe to raise one

20

matter with Your Honour which I have (indistinct) in

21

earlier stages of these proceedings and that is the

22

question of whether Mr Johnson needs a litigation

23

guardian or not.

24

of the people that Mr Johnson's chosen to subpoena was

25

Dr David List, a psychologist - - -

It's fortuitous Your Honour that one

26HIS HONOUR:

David, sorry?

27MR DEVRIES:

Dr David List.

28HIS HONOUR:

Yes.

29MR DEVRIES:

Psychologist, who is the gentleman sitting at the

30

far end of the front row.

31

psychiatrist gave evidence in related proceedings in the

1.MJ:ASC 02/12/08 2Cressy

FTR:1

2

He gave - he and a

DISCUSSION

1

Federal Magistrates' Court about Mr Johnson's

2

psychological and psychiatric state.

3

not here.

4

which I can hand up if it is of assistance Your Honour.

5

But we tender Dr List's evidence and Dr Impus' evidence

6

was

7

that - - -

Now Dr Impus is

I have a report that Dr Impus will prepare

8HIS HONOUR:

I'm sorry could you speak up a bit?

9MR DEVRIES:

Yes sorry.

I'm usually told that I shout.

The

10

tenor of the evidence of both Dr List and Dr Impus or

11

Dr Impus being the psychiatrist is that Mr Johnson is

12

not a person fit to represent anyone because of his

13

psychological condition and perhaps Your Honour may be

14

assisted by some evidence of Dr List about that.

15HIS HONOUR: 16

Well what are the provisions relating to this?

Can I do this off my own motion?

17MR JOHNSON:

Your Honour may I - - -

18MR DEVRIES:

I believe Your Honour can.

19MR JOHNSON:

May I speak Your Honour?

I'm not sure if Your

20

Honour received the submission I faxed through this

21

morning?

22HIS HONOUR:

No, I have read the pleadings in the case.

23MR JOHNSON:

Your Honour that's just really about 7.30 this

24

morning I think it was.

25HIS HONOUR:

Well - - -

26MR JOHNSON:

Basically I, I had some concerns.

I surprisingly

27

enough am quite satisfied as to my competency although I

28

am obviously reluctant and distressed that I have to

29

represent myself in these proceedings.

30

about Mr Devries' capacity and also this of Mr List's

31

capacity to represent in the professional capacity as

1.MJ:ASC 02/12/08 2Cressy

FTR:1

3

I have concerns

DISCUSSION

1

they represent themselves.

May I hand up to Your Honour

2

the submission?

3

procedural issues which have a bearing on whether this

4

matter should proceed at all today, to trial.

5

is that the court has been misled

It's basically I think four or five

My view

6

by Mr Cressy's legal representatives, Mr Devries and Master

7

Kings at the last directions hearing at which I was

8

given no prior notice and didn't attend, into believing

9

that this might be a two day trial.

I don't know what

10

allocation of time Mr Devries plans to give to

11

Ms Cressy but I can assure you my cross-examination

12

would take at least three days.

13

in-chief will require at least three days and I suspect

14

that Dr List will be in the box for at least two days as

15

well.

16

Ms Cressy's lawyers have well known that this is a trial

17

of three to four weeks (indistinct).

18

- -

I believe my evidence-

I've said all the way along as

I have issued a -

19HIS HONOUR:

Have you told the listing master that?

20MR JOHNSON:

I've not had an opportunity Your Honour.

21HIS HONOUR:

But you did not appear when the matter was set

22

down for trial?

23MR JOHNSON:

I simply wasn't aware of the hearing and it's not

24

until it was two months later when the Prothonotary's

25

office was able to give me copies - - -

26HIS HONOUR:

Well let's - - -

27MR JOHNSON:

- - - of these orders.

28HIS HONOUR:

If I could just attend to the latter matter first

29

because I have - - -

30MR JOHNSON:

(Indistinct).

31HIS HONOUR:

No, but I've been provided this case on the basis

1.MJ:ASC 02/12/08 2Cressy

FTR:1

4

DISCUSSION

1

it would take two days.

2

which involves - - -

There is a matter next Monday

3MR JOHNSON:

(Indistinct).

4HIS HONOUR:

Just a moment, I'm talking - it's a dying

5

plaintiff.

6

then I may need to have to tend to that.

7

be available to hear this case through its duration.

8

How many witnesses would you be calling in this case?

9MR JOHNSON:

If that case doesn't resolve in the meantime Otherwise I'd

I issued 20 subpoenas - - -

10HIS HONOUR:

How many witnesses - - -

11MR JOHNSON:

In all fairness, I'd probably need 40 witnesses.

12

I believe that only six of those subpoenas which were

13

issued at the last moment have actually been served.

14

There are other proceedings in this honourable court

15

involving exactly my same property, one of the

16

properties that is affected by these proceedings.

17HIS HONOUR:

What is your application to me Mr Johnson?

18MR JOHNSON:

I am seeking clarification of some of the -

19

firstly I'm seeking to have the two matters in this

20

court, the same land of mine of which I am the only

21

common party, to be heard together.

22HIS HONOUR:

So there's another proceeding, is there?

23MR JOHNSON:

Yes, Your Honour

24HIS HONOUR:

We received some email from I think Master Daly's

25

associate - - -

26MR JOHNSON: 27

It was listed before Master Daly yesterday Your

Honour.

28HIS HONOUR:

- - - about some application and no one turned up.

29MR JOHNSON:

I was quite anxious because of some - - -

30HIS HONOUR:

What is the nature of the other application - the

31

other - - -

1.MJ:ASC 02/12/08 2Cressy

FTR:1

5

DISCUSSION

1MR JOHNSON:

It is an application seeking position for me of

2

property which I was evicted from by orders made by

3

Justice Cavanough in a full day hearing.

4HIS HONOUR:

Yes.

5MR JOHNSON:

A full day plus hearing - - -

6HIS HONOUR:

You have a separate proceeding, do you?

7MR JOHNSON:

They were issued against me in late October and

8

served in early November Your Honour.

9HIS HONOUR:

Who issued those proceedings against you?

10MR JOHNSON:

My mortgagee of that property Your Honour.

11

actually - - -

12HIS HONOUR: 13

I am

It was a matter for you to make a timely

application to have that - - -

14MR JOHNSON:

Your Honour, I'm - - -

15HIS HONOUR:

Just a moment.

16MR JOHNSON:

I'm sorry.

17HIS HONOUR:

You're admitted to practice as a barrister so you

18

know that when a judge talks, you listen and then you

19

will be given an opportunity to talk.

20

for you as an interlocutory application to seek to have

21

the two matters heard together and that has not been

22

done yet.

23

seems that you're all foreshadowing a plethora of

24

preliminary applications and I haven't heard from Ms

25

Sofroniou yet but I hope she hasn't got any.

26

from Mr Devries first and then I'll hear from you on

27

yours, all right?

It was a matter

Now what I think I'd better firstly is it

28MR JOHNSON:

Your Honour, I just explain - - -

29HIS HONOUR:

Mr Johnson, would you please sit down.

30

hear from you in a moment.

31

Mr Devries to get some order into this.

1.MJ:ASC 02/12/08 2Cressy

FTR:1

6

I'll hear

I will

I just want to hear from Now Mr Devries, DISCUSSION

1

do you have an application relating to the status of

2

Mr Johnson in this proceeding?

3MR DEVRIES:

I do Your Honour.

4HIS HONOUR:

Firstly, why wasn't this application brought

5

before the Master?

6MR DEVRIES:

Why did we wait til today?

Your Honour, there are a number of reasons for

7

that.

Firstly, it was believed that Mr Johnson wouldn't

8

be turning up because of his habit of not turning up to

9

other proceedings that have been - - -

10MR JOHNSON:

Your Honour, that's - - -

11HIS HONOUR:

You can respond to that in a moment.

Make notes

12

and you will have a right to respond.

If that is right

13

and if Mr Johnson - there's a concern Mr Johnson could

14

not defend himself and this application has been made

15

earlier.

16

say how - I have to do this off my own bat?

But now it's been brought to my attention, you

17MR DEVRIES:

You do Your Honour.

18HIS HONOUR:

What's the rule?

19MR DEVRIES:

Rule 15.03 Your Honour.

20HIS HONOUR:

Now does everyone who's been subpoenaed here today

21

affected by this?

22

have better things to do then sit around waiting for

23

their subpoenas to be heard.

24

can be called who are unaffected by this application?

25MR DEVRIES:

There's a lot of people who probably

Is anyone whose subpoenas

Your Honour, I can't - sorry, I didn't mean to

26

interrupt.

27

know whom Mr Johnson's subpoenaed except for Dr List.

28HIS HONOUR: 29

And Dr List is obviously relevant to the

application.

30MR DEVRIES: 31

I can't answer the question because I don't

And Mr Enright who's principal of the school of

the children of my client and the child of the parties.

1.MJ:ASC 02/12/08 2Cressy

FTR:1

7

DISCUSSION

1

I might say Your Honour, I cannot presently conceive how

2

either of those two people, being only the two that I

3

note can give any evidence in this matter that is

4

remotely relevant to a Part 9 application before Your

5

Honour.

6HIS HONOUR:

I'm not in a position to assist at the moment.

7

But I was just wondering if there was anyone here whose

8

subpoena we could call on at the moment to avoid giving

9

inconvenience to them so we can let them go on their

10

way.

11MR DEVRIES: 12

There seem to be a lot of people Your Honour.

I

don't - - -

13HIS HONOUR:

I think what I'll do is I'll just try and sort out

14

what we're going to do with today's case.

15

it's Order 15 - - -

16MR DEVRIES:

Well you say

Can I say Your Honour that if Your Honour was to

17

grant that application that would obviously mean with

18

respect that - - -

19HIS HONOUR:

It seemed to me the proceeding will go off.

20MR DEVRIES:

Part of the proceeding would go off.

There is an

21

application made by Mr Johnson that has been referred by

22

Master Evans to this court which relates to the

23

properties and I'll be asking Your Honour to meet orders

24

that basically protect the proceeds of the sale of those

25

properties - - -

26HIS HONOUR:

Yes, I'll hear from - - -

27MR DEVRIES:

- - - but apart from that this proceeding would

28

have to go off if Your Honour is minded to - - -

29HIS HONOUR:

Appoint a litigation guardian.

I understand that.

30

Well there are a number of procedures that need to be

31

attended to are there not?

1.MJ:ASC 02/12/08 2Cressy

FTR:1

8

There really needs to be a DISCUSSION

1

proper application made.

2

short on this application.

3MR DEVRIES:

Mr Johnson is probably caught

It being foreshadowed in each of the other times

4

that we've been before this court Your Honour.

5

mentioned it in the Practice Court on at least two

6

occasions.

7

Master in the very first trial.

8HIS HONOUR: 9

I've

I certainly didn't mention it to the Listing

It's a pity the application hadn't been made

earlier.

10MR DEVRIES:

Can I say Your Honour - - -

11HIS HONOUR:

It's a question whether I deal with it or whether

12

I simply refer this matter back to the Listing Master

13

for her to deal with this application first and any

14

other applications.

15MR DEVRIES:

Can I say Your Honour one of the reasons for the

16

delay in taking it further was that we were expecting a

17

decision last Friday in the Federal Magistrates' Court

18

where one of the principal issues that was litigated

19

there was the psychiatric and psychological condition of

20

Mr Johnson but unfortunately at the last moment the

21

listing for the decision of that matter was vacated and

22

we had expected that we would have a decision which

23

would clearly go through all the evidence that was

24

before His Honour Federal Magistrate O'Dwyer.

25

communicated to Your Honour Dr List who is one of the

26

two persons who gave evidence on that matter is present

27

in court fortuitously today.

28

there's no reason why in my respectful submission Your

29

Honour can't hear the evidence and make that

30

determination.

31HIS HONOUR:

But as I

With respect Your Honour

I understand that the application is normally made

1.MJ:ASC 02/12/08 2Cressy

FTR:1

9

DISCUSSION

1

on behalf of the party himself not by a party adverse to

2

him.

3MR JOHNSON:

Thank you, Your Honour.

4MR DEVRIES:

I'm not making a formal application in my own - in

5

my client's right.

What I'm trying to do Your Honour is

6

draw to you attention - - -

7HIS HONOUR:

Yes.

8MR DEVRIES:

- - - the situation that Mr Johnson requires a

9

litigation guardian and I was going to draw Your

10

Honour's attention to a number of documents that are on

11

the court file that have emanated from Mr Johnson as

12

well as the evidence that was before Federal Magistrate

13

O'Dwyer.

14

I'm raising it now.

15HIS HONOUR:

It's a matter of courtesy to Your Honour that

I understand that.

Who do you say should be - if

16

I uphold your application who should be appointed a

17

litigation guardian?

18MR DEVRIES:

I have to say that's not a matter that I should be

19

making any comment on because it should be with respect

20

somebody appointed by the court itself and it would be

21

improper for my client to have any say in who that

22

person is but it would need in my respectful submission

23

to be either a lawyer or perhaps the Public Trustee.

24HIS HONOUR: 25

Now you were going to draw my attention to some

documents.

26MR JOHNSON:

Your Honour, I'm sorry and I'm sorry for talking

27

over but I believe that this is an irrelevant exercise

28

Mr Devries is taking you through and the explanation of

29

this is in the submission that I faxed to Your Honour at

30

7.30 this morning so I beg you please to read the

31

submission perhaps before I even need to respond to some

1.MJ:ASC 02/12/08 2Cressy

FTR:1

10

DISCUSSION

1 2

of - - -

3HIS HONOUR: 4

Well I'll read your submission.

Have you provided

a copy to your opponents?

5MR JOHNSON:

I'm providing it now, Your Honour, and I'm sorry

6

but my learned friend at the end of the Bar table I've

7

not been introduced.

8

madam, you are?

9MS SOFRONIOU: 10

I think we've (indistinct) in

OK perhaps not this time.

Yes, thank you.

Thank

you.

13MR DEVRIES: 14

Rena Sofroniou.

earlier directions hearing.

11MR JOHNSON: 12

I don't recognise - I'm sorry,

It's going to take me a few minutes to get on top

of this, Your Honour.

15HIS HONOUR:

Me too.

16MR JOHNSON:

Your Honour, I realise these are quite a lengthy

17

submission and I realised on the drive in this morning

18

there were at least two important points that I left out

19

which I might address when I respond to Mr Devries's

20

allegations this morning.

21HIS HONOUR:

Yes.

A lot of these go the substance.

The

22

preliminary issue raised for me is your capacity, with

23

or without a litigation guardian to adequately defend

24

these proceedings in your own interests.

Matters have

25

been brought to my attention by counsel.

The best thing

26

for me to do is to hear whatever evidence Mr Devries

27

thinks I ought to hear.

28

issue.

29

your submission goes to the next stage, that is what I

30

should do with the proceeding having heard the

31

preliminary matter raised by Mr Devries.

I'll hear from you on that

I'll determine that issue.

1.MJ:ASC 02/12/08 2Cressy

FTR:1

11

Your issue goes -

DISCUSSION

1MR JOHNSON: 2

comments.

3HIS HONOUR: 4

Your Honour, may I then quickly respond to those In my submission - - -

Mr Devries has not completed - you can respond but

we'll do this in an orderly way.

5MR JOHNSON:

Sir - - -

6HIS HONOUR:

Mr Johnson, do you mind.

Mr Devries, you wish to

7

bring my attention to some matters - some material

8

first, do you.

9MR DEVRIES:

Yes.

At an earlier proceeding in the Practice

10

Court before His Honour Justice Cavanough, Mr Johnson

11

sent to him - to His Honour's chambers two media

12

releases.

13

a look at those.

14

also been exhibited in part in some of Mr Johnson's very

15

many, very lengthy affidavits.

16

remain on the court file but - - -

And I'd ask Your Honour first of all to have One was dated 14 July 2008.

They've

I don't know if they

17MR JOHNSON:

They're media releases.

18HIS HONOUR:

Sorry.

19MR DEVRIES:

I'll hand up - I can wave my hands very quickly on

20

one of them.

21HIS HONOUR:

There's two media releases you said.

22MR DEVRIES:

Yes.

23MR JOHNSON:

Your Honour, may I view the document to make sure

24

Purported media releases I think.

it's an accurate representation please.

25HIS HONOUR:

I'm sorry?

26MR JOHNSON:

In previous affidavits, Mr Devries' instructor has

27

misled the court as to the length of content of one of

28

my media releases, a one paged media release which he's

29

proposed was two pages long which was clearly wrong.

30HIS HONOUR:

Which is sorry?

31MR JOHNSON:

A media release of 14 July which I issued, I would

1.MJ:ASC 02/12/08 2Cressy

FTR:1

12

DISCUSSION

1 2 3

really like to talk at length on this and the mayhem that Mr Devries has caused from it.

And also point out

that in one of his instructions - - -

4HIS HONOUR:

Now just a moment.

I'm hearing - as you know as a

5

lawyer, I hear one side at a time.

6

putting to me to material.

7

material is misleading, you can draw my attention to

8

that when your turn will rise shortly.

9MR JOHNSON: 10

If you say that that

And therefore I would like to see it now to

see that this is exactly the one page - - -

11HIS HONOUR: 12

Sir.

Now Mr Devries is

Yes.

Mr Devries, would you show Mr Johnson the

document that is about to be handed to him.

13MR JOHNSON:

No again Your Honour, he's adding extra in these

14

materials.

He's giving you three pages when the media

15

release is only one page.

16

why as is instructed to do in an earlier affidavit,

17

they're submitting (indistinct) for two weeks.

18

not part of any media release I've issued.

Quite clearly.

I don't know

This is

19HIS HONOUR:

Well is any - - -

20MR DEVRIES:

What my instructor has just supplied by the court

21

is the document that Mr Johnson had - - -

22HIS HONOUR:

I've seen that and Mr Johnson had put before me

23

the material he says he handed to the court.

I receive

24

this as an exhibit on this preliminary application.

25MR DEVRIES: Yes, thank you. 26 27#EXHIBIT A Three page media release dated 14 July 2008. 28HIS HONOUR: 29

And I'll note what you have foreshadowed in the

motion to that Mr Johnson - - -

30MR JOHNSON:

I'm grateful sir.

31HIS HONOUR:

- - - and you can bring that to my attention when

32

you rise to address me on this issue.

1.MJ:ASC 02/12/08 2Cressy

FTR:1

13

DISCUSSION

1MR DEVRIES:

Your Honour I should say at this stage I object on

2

my own behalf and on behalf of my instructors to all of

3

the suggestions that Mr Johnson has made and will make

4

during the course of today about the propriety of the

5

actions of my instructors and myself.

I - - -

6HIS HONOUR:

Thank you Mr Devries.

7MR DEVRIES:

Yes sorry.

8MR JOHNSON:

Your Honour I'll be asking you to explain this.

9

It makes no sense to me.

I'm just reading this.

Objecting to things that

10

haven't been assessed, that's a bit crazy I think Your

11

Honour.

12HIS HONOUR:

Yes now did you say there's another document

13

Mr Devries?

14

Justice Cavanough?

15MR DEVRIES: 16

What was the date of the proceedings before

Around about 20 June this year Your Honour.

20 June.

17HIS HONOUR:

Now is there another document Mr Devries?

18MR DEVRIES:

Yes I'm endeavouring to locate it specifically to

19

one of Mr Johnson's affidavits.

20

affidavit sworn by him on 20 August 2008.

21HIS HONOUR: 22

I believe it was an

I think that might be on the court file.

Well do

you have a copy of that here Mr Johnson?

23MR JOHNSON:

Your Honour I only ever issued the one

24

(indistinct).

25

never been issued but I did give a copy to Mr Justice

26

Hansen.

27HIS HONOUR: 28

I have a two page draft release which has

On the sixth - he heard an application on 16 July,

is that the document - - -

29MR JOHNSON:

No forgive me.

I made a copy of this draft

30

release available to Master Kings by facsimile on the

31

morning of that so called directions hearing, at which

1.MJ:ASC 02/12/08 2Cressy

FTR:1

14

DISCUSSION

1

no directions were given on 28 July.

2

matter's adjourned off - - -

I believe that

3HIS HONOUR:

Well what are you handing to me?

4MR JOHNSON:

I'm not sure what Mr Devries - - -

5HIS HONOUR:

Well if you be seated at the moment I think we'll

6

just deal with what Mr Devries wishes to put before me

7

then I'll hear from you.

8MR JOHNSON:

All right, thank you.

9HIS HONOUR:

You just make a note of everything you want to say

10

to me in response, thank you.

11MR DEVRIES: 12

You can wait your turn.

This is the media release that he dated 28 July

2008, that's three pages.

13HIS HONOUR:

Yes, have you shown that to Mr Johnson?

14MR DEVRIES:

Sorry.

15

handed to me.

16MR JOHNSON: 17

Again Your Honour there's an extraneous third

page.

18HIS HONOUR: 19

Ensure Mr Johnson that's what's to be

Right and you make a note of that for me and you

can make that to me in a moment, all right?

20MR JOHNSON:

Thank you sir.

21HIS HONOUR: Thanks. 22 23#EXHIBIT B Three page media release dated 28 July 2008. 24MR DEVRIES:

Sorry Your Honour.

The other material I was going

25

to refer Your Honour to were the various affidavits that

26

Mr Johnson's made in this matter and I'd be submitting

27

to Your Honour that to some extent, they speak for

28

themselves in terms of their format, their - - -

29HIS HONOUR:

But I've noticed but not read a large number of

30

affidavits on the file.

31

should read?

32MR DEVRIES:

Is there any particular that I

They're all similar in style and content.

1.MJ:ASC 02/12/08 2Cressy

FTR:1

15

But

DISCUSSION

1

perhaps Your Honour might be quicker if I had - if I was

2

to call Dr List to give - - -

3HIS HONOUR:

Yes.

4MR DEVRIES:

That might be - - -

5MR JOHNSON:

Your Honour, is that appropriate because I will be

6

calling him later in the proceedings - - -

7HIS HONOUR:

I'll be hearing from Dr List - Mr Devries is

8

calling Dr List.

9

application.

10

I'll hear from him on this

On your application, you can feel free to

call him, all right?

11MR JOHNSON:

May I anticipate that I have grave misgivings

12

about this man's capacity and his honesty and his

13

credibility.

14

proceedings which by virtue of applications that

15

Mr Devries has made in the Federal Magistrates' Court,

16

I'm actually prohibited by that court from raising in

17

this court although the prohibition applies to me, not

18

to Mr Devries or his client.

19

I've raised in my submissions - - -

20HIS HONOUR:

In his written evidence in other

That's one of the matters

I don't see that as an objection of a - a valid

21

objection to calling Dr List on this application.

22

hear from him.

23

address the evidence he gives to me.

24MR JOHNSON:

I'll

You can ask him relevant questions and

My concern is that to demonstrate his lack of

25

fides and professionalism.

26

full two - - -

I need to submit him to the

27HIS HONOUR:

I'm sorry.

28MR JOHNSON:

I expect I will need to take him lengthily through

29

a substantive, I believe, 43 paged written report that

30

he has made.

31HIS HONOUR:

It will take me two hours of - - -

Mr Johnson, this will go only to relevance as to

1.MJ:ASC 02/12/08 2Cressy

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16

DISCUSSION

1

your current capacity to defend yourself in your own

2

interests.

3MR JOHNSON: 4

Now - - -

Your Honour, isn't this a scandalous application

for a plaintiff to make just to - - -

5HIS HONOUR:

No, it's a matter - - -

6MR JOHNSON:

- - - my right to defend myself.

7HIS HONOUR:

No.

It's a matter of counsel bringing to my

8

attention a matter as to whether you have the capacity

9

to defend yourself in your own interests.

Now I

10

understand from the pleadings, this concerns your

11

interest in six properties and I do not wish to hear a

12

case in which I don't think you've got a fair

13

opportunity to defend yourself.

14MR JOHNSON:

Thank you Your Honour.

15HIS HONOUR:

I'll hear from Dr List and you can ask him

16

relevant questions, all right?

17MR JOHNSON:

Your Honour, at the risk of - - -

18HIS HONOUR:

Thanks Mr Johnson.

Dr List if you will.

19
Mr Devries.

21MR DEVRIES:

Could you state to the court your full name?

22

---David Jacob List.

23Your occupation?---I'm a clinical psychologist. 24And your business address?---Park Street Consulting, 276 Park 25

Street, North Fitzroy.

26And in the course - sorry, can you tell His Honour what your 27

qualifications are?---I have a BA in Psychology from the

28

State University of New York and a PHD in Clinical

29

Psychology from the California Graduate Institute.

30

a member of the Australian Psychological Society and

31

former state president of the College of Clinical

1.MJ:ASC 02/12/08 2Cressy

FTR:1

17

I'm

DISCUSSION

1

Psychologists.

I am a diplomat of the International

2

Academy of Professional Counselling and Psychotherapy.

3

A clinical member of the Victorian Association of Family

4

Therapists.

5

jurisdictions including the Family Court and Supreme

6

Court for the better part of 30 years and I have had

7

statutory appointments including the - I'm the immediate

8

past president of the Psychologists Registration Board

9

of Victoria and I hold current statutory appointments

10

which are probably relevant here to the Mental Health

11

Review Board, the Multiple and Complex Needs Panel.

12

am a member of VCAT.

13

the Disciplinary Appeals Board which is not relevant to

14

this.

I have provided evidence in various

I

And I'm also a statutory member of

15In the course of your professional career, were you engaged to 16

provide some reports or a report for family law

17

proceedings involving Mr Johnson and Ms Cressy?---Yes.

18Did you prepare any written reports?---I prepared one report. 19And did you give any evidence in that matter?---I did. 20And between - for the purposes of preparing your reports and 21

giving your evidence, did you at any stage see

22

Mr Johnson?---Yes.

23And for how long did you see Mr Johnson?---I can't be precise 24

about it but it was certainly quite a number of hours

25

one way or another over the course of the assessment.

26HIS HONOUR:

When did you conduct that assessment Doctor?

27

may - - -?---That was in November and early December

28

last year Your Honour.

29

face with Mr Johnson since that time.

30MR DEVRIES: 31

You

And I've had no contact face to

Did you have the opportunity to see any documents

prepared by Mr Johnson between when you saw him at the

1.MJ:ASC 02/12/08 2Cressy

FTR:1

18

DISCUSSION

1

end of 2007 and when you gave your evidence in September

2

this year?---Yes, I was provided with a number of

3

documents including affidavit material provided by him

4

and other documents.

5Did you form a view as to Mr Johnson's psychiatric state as a 6

result, sorry, of you seeing him and reading those

7

documents?---As a result of seeing him Your Honour, I

8

formed the view that he had serious - that he certainly

9

has a psychiatric disorder.

At the time I had - when I

10

prepared the assessment, I had very considerable

11

concerns about him on that basis.

12

haven't had the opportunity to assess him further and so

13

I can't specifically draw conclusions about his current

14

state on the basis of an assessment, interview or a

15

mental status examination or anything else.

16

that, having seen the documents that he has prepared,

17

they appear at first blush - - -

18HIS HONOUR:

Since that time, I

Having said

That is the media releases and the - - -?---And

19

the affidavit material which - that it raises grave

20

questions for me about his capacity to practice

21

certainly as well as his functioning.

22

to the court when specifically asked by the federal

23

magistrate was that my own preference would be that he

24

be - that he undertake a voluntary admission to a

25

residential facility or an inpatient facility at which

26

he could be formally assessed at some length and

27

appropriate management planned on his behalf.

28

great sympathy for him and at the same time, I'm gravely

29

concerned about his functioning.

My recommendation

I have

30Now I'm concerned of course with his capacity to do himself 31

justice in this court in the proceeding involving him to

1.MJ:ASC 02/12/08 2Cressy

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19

DISCUSSION

1

properly understand the proceeding and to make proper

2

answer to it in his best interests.

3

assessment of him, I appreciate it's a year ago, but

4

your opportunity also to read documents that he has

5

authored since, what is your view in relation to

6

that?---I cannot be confident that he would be able to

7

represent himself effectively.

8

unsafe to conclude then.

9HIS HONOUR:

Based on your

I think it would be

There are plenty of people who are unable to

10

represent themselves effectively because of lack of

11

skill but I take it you're referring to his mental state

12

when you - - -?---I am, Your Honour.

13How substantial are your misgivings in that respect?---They are 14

substantial.

They're very substantial.

15I take it you have some idea of the issues in this case, filed 16

a claim by the plaintiff to an interest in properties in

17

which Mr Johnson, as I understand it, holds legal

18

interest?---I wasn't specifically aware.

19

contact Mr Johnson many times over the past week since I

20

was subpoenaed and was unable to – he didn't respond.

21

So I was unable to discuss with him the nature of the

22

hearing.

I attempted to

23Now, bearing in mind their very broad description of the 24

proceeding - - -?---Well it's in the commercial list so

25

I – and property, so I presumed that but I knew no more.

26And - - -?---And I was unable to ascertain, for example, given 27

the question that you're raising, Your Honour, what

28

relevance my presence had on that kind of an issue.

29Well I'm not too sure myself.

But based on that would you

30

still have substantial misgivings in relation to his

31

capacity to properly defend himself - - -?---Yes, I

1.MJ:ASC 02/12/08 2Cressy

FTR:1

20

DISCUSSION

1

would, Your Honour.

2In relation to a claim by Ms Cressy to an interest in those 3

properties?---Yes.

4Yes, thanks Doctor. 5

Mr Devries, do you have any other

questions of - - -

6MR DEVRIES:

Just a couple questions, Your Honour.

7HIS HONOUR:

Yes.

8MR DEVRIES:

You gave evidence as to the nature of Mr Johnson's

9 10

condition, if I can use that terminology, do you recall giving that evidence?---Yes, I do.

11And can you tell His Honour what your view is as to the nature 12

of the psychiatric condition or conditions that

13

Mr Johnson may suffer from?---There were some questions

14

arising from both my evidence and the report which I

15

read and the evidence which I didn't hear of

16

Dr Entwhistle, the psychiatrist in the matter, and there

17

were three fundamental realms that were addressed and

18

without final conclusions being drawn.

19

was in the realm of a narcissistic personality disorder.

20

The second was an affective disorder, more – presumably

21

more manic.

22

form, particularly in the paranoid framework.

23

unable to - particularly given the length of time since

24

I'd seen him and what appeared to be on the papers, as

25

it were, a significant deterioration over the period of

26

time, I was unable to provide a more coherent final

27

diagnostic classification.

28HIS HONOUR: 29

And one of them

And the third was in psychosis of whatever And I was

What period of time are you talking about

where - - -?---Well I hadn't seen – I haven't seen - - -

30You saw the deterioration?---Well it's a year from – a year ago 31

now.

So as of September it was nine months or ten

1.MJ:ASC 02/12/08 2Cressy

FTR:1

21

DISCUSSION

1

months approximately.

2So you see a significant deterioration in that period?---Well I 3

see what appears to be that in the form of the papers,

4

in the materials that he's provided which present an

5

apparent increase in apparent delusional thinking.

6That would go to the third matter mainly or - - -?---Well yes 7

and - - -

8The psychosis?---Yes. 9Do you understand Mr Johnson ever to have any treatment or had 10

any treatment for any of this?---I understand that he

11

had not but I know no more than that.

12

not be correct.

13MR DEVRIES:

And even that may

Could you give His Honour a nutshell description

14

of narcissistic personality disorder?---It refers to

15

someone that does not have a coherent sense of self.

16

And in that context either tends to idealise other

17

people or to take a grandiose view of oneself as a way

18

of protecting one's own psychological integrity as it

19

were.

20

have very little or no capacity to tolerate ambivalent

21

relationships which occur with everyone else virtually.

22

So that, for example, Your Honour, if you were married

23

then you may love your wife and you may also at times

24

feel very aggrieved with her or annoyed with her and

25

still know at the same time that you love her at the

26

same time.

27

have – if you're suffering from a narcissistic

28

personality disorder, it tends to be that a person is

29

your friend or your enemy, with nothing in the middle,

30

and that's a very troubling way to live one's life.

And in that context persons who suffer from that

Whereas if you are a narcissistic – if you

31How amendable to treatment is narcissistic personality 1.MJ:ASC 02/12/08 2Cressy

FTR:1

22

DISCUSSION

1

disorder?---Well any personality disorder is problematic

2

in that the distinction between a normal what we call

3

neurotic level of dysfunction and personality disorder

4

is significant.

5

has internal conflicts and resolves those through a

6

variety of symptoms but they suffer from those symptoms

7

and they don't like them and they wish they would go

8

away.

9

check the gas on the stove to make sure that it was out

10

nine times before he leaves the house every - every day

11

and he - he would know that it was unnecessary and he

12

would know that it was just a compulsion and it would

13

cause him to suffer and he would want help in dealing

14

with that and he could well seek treatment for that.

15

on the other hand it was his personality then he would

16

say well everyone should check the gas nine times before

17

they leave the house and he would have no reason to seek

18

treatment and he would have no interest in treatment

19

because why seek treatment for something that is only

20

what everyone should be doing anyway.

21

you're dealing with someone who has a personality

22

disorder they are typically much less willing to seek or

23

sustain treatment because they're not interested in it.

24

They have no understanding that there's a reason for it.

25

They're not feeling like they're suffering in the same

26

way that other people are.

27

Then you have the narcissistic aspect of it in

28

particular, Your Honour, and in that regard the idea of

29

something wrong and particularly in that domain of

30

narcissism is something that a person would find

31

extremely difficult to - to accept and it would be in a

In a normal neurotic condition a person

So for example if Mr Devries was compelled to

1.MJ:ASC 02/12/08 2Cressy

FTR:1

23

If

And so when

So that's that part of it.

DISCUSSION

1

sense a narcissistic wound.

The idea of that diagnosis

2

it would represent a wound to one's sense of self and

3

that would presumably make it even more problematic to

4

entertain - entertain seriously the idea of treatment.

5What about accepting authority of the court and views that are 6

different to his own?---That could also be problematic,

7

yes.

8Did you see the report of Dr Entwhistle in that other matter? 9 10

---I did see it although I haven't looked at it since that time.

11Do you have a copy of that?---I believe I do. 12

sure where it is.

13

it.

I'm not quite

I can - I can - I'm happy to look at

14I have a copy I can show Dr List. 15MR JOHNSON:

Excuse me, Your Honour, I have never seen it and

16

I've been told that that report doesn't even exist so

17

may I have a copy please?

18HIS HONOUR: 19

Yes, certainly.

Is there a spare copy of that

report for Mr Johnson?

20MR DEVRIES:

At present that's the only copy I have Your

21

Honour.

22

report was that he chose to leave the proceedings five

23

minutes after they started - - -

24HIS HONOUR: 25

The reason Mr Johnson never saw a copy of the

Well look that doesn't matter.

That fact that he

hasn't seen it - - -

26MR DEVRIES:

He hasn't.

27HIS HONOUR:

- - - is a matter of natural justice.

28MR DEVRIES:

Yes, certainly.

29HIS HONOUR:

He should be able to have a look at any document

30

in which the witness expresses any views.

31

copy of it there Doctor so you can read it while or have

1.MJ:ASC 02/12/08 2Cressy

FTR:1

24

Do you have a

DISCUSSION

1

a look at it while Mr Johnson looks at it?

2MR JOHNSON:

Your Honour, might I also mention that if I was to

3

make use of any of the documents in the Federal

4

Magistrates' Court proceedings I would be in breach of

5

orders that the federal magistrate made on 9 September

6

this year at the behest of Mr Devries and I believe

7

notwithstanding that those orders were not within the

8

jurisdiction of the federal magistrate on that day

9

because they are repugnant to s.121 of the Family Law

10

Act.

I'm impeded nevertheless while those orders are on

11

foot and I don't have an opportunity yet to appeal them.

12

Again I'm just pointing out the inequity in the rules of

13

evidence that seem to apply here.

14

playing field.

15

magistrate put on me has not been put on Mr Devries

16

who's made liberal use including - and I'll be referring

17

to this when I respond as best I can given my limited

18

skills and limited mental capacity by referring to

19

Exhibit C1 which Mr Devries handed up to Justice

20

Cavanough on 20 June which is - - -

There's no level

The prohibition that the federal

21HIS HONOUR:

Well I'm just - - -

22MR JOHNSON:

- - - one of my affidavits in those Federal

23

Magistrates' Court proceedings.

24HIS HONOUR:

All right.

Now at the moment I'm just concerned

25

with the report of Dr Entwhistle.

26

the report of Dr Entwhistle?

27MR DEVRIES:

Mr Devries, what was

Was that - - -

It's a psychiatric assessment of both my client

28

and Mr Johnson and Dr Entwhistle gave viva voce

29

evidence.

30HIS HONOUR: 31

To whom?

But who did he provide the assessment

to?---The independent children's lawyer.

1.MJ:ASC 02/12/08 2Cressy

FTR:1

25

DISCUSSION

1Was that in another proceeding? 2MR DEVRIES: 3

That was in the same proceeding that Dr List gave

his - - -

4HIS HONOUR: 5

Well I'm not too sure how documents like those can

be used in this proceeding.

6MR DEVRIES:

Yes.

Unfortunately Dr List's report was the

7

subject of an affidavit in the other proceeding because

8

of - - -

9HIS HONOUR:

Dr List is giving viva voce evidence here as to

10

his examination or consultation with Mr Johnson last

11

year and what documents he's seen from Mr Johnson since

12

then.

13

to that.

I think we're probably safer just simply sticking

14MR DEVRIES:

If Your Honour pleases.

15HIS HONOUR:

My major concern is really the state of Mr Johnson

16

here and now and so of course could be based on the past

17

but Dr List has given or stated a number of years

18

particularly that he has a substantial concern whether

19

Mr Johnson can properly protect his own interests in

20

this current piece of litigation.

21

have.

That's the concern I

22MR DEVRIES:

Yes Your Honour.

23HIS HONOUR:

And perhaps I should just ask you, is that - are

24

those all the questions you wish to ask?

25MR DEVRIES:

Yes they are Your Honour.

26HIS HONOUR:

Ms Sofroniou do you wish to ask any questions of

27

the doctor before Mr Johnson?

28MS SOFRONIOU: 29HIS HONOUR:

No Your Honour. Thanks.

Thanks Ms Sofroniou.

Now Mr Johnson you

30

understand that all that is - I'm being asked or has

31

been brought to my attention is a concern as to your

1.MJ:ASC 02/12/08 2Cressy

FTR:1

26

DISCUSSION

1

capacity to defend yourself and look after yourself in

2

this proceeding.

3

interests.

4

in relation to that, but you did a moment ago state that

5

you did have concerns about your own mental capacity.

So in a sense it's been done for own

Now you're entitled to ask Dr List questions

6MR JOHNSON:

No sir.

7HIS HONOUR:

Now that's a matter for you but you're entitled to

8

ask Dr List questions.

You can do that but can you

9

please keep it relevant to that issue.

Do you follow?

10MR JOHNSON:

I - - -

11HIS HONOUR:

I'm not hearing the basic case at the moment.

12

It's simply a preliminary matter as to your capacity.

13

Now off you go.

14MR JOHNSON:

Thank you Your Honour.

I believe we're on the

15

same wavelength.

I have no doubts about my mental

16

capacity.

17

commercial and government lawyer of 18 plus years good

18

standing.

What I'm concerned about is being a

I have next to no litigation experience.

19HIS HONOUR:

Yes.

20MR JOHNSON:

And I am representing myself out of hardship

21

caused by the caveats that were lodged in May 2007.

22

Vexatious in my view and all those who I've spoken to

23

about them, including I believe Mr Hanlon who is of the

24

same view or at least (indistinct) instructed before

25

Justice Whelan in the second of the five practice courts

26

(indistinct) we've had in this matter on the, I think

27

that was 18 February this year.

28

made it quite clearly in his submission that he knew

29

that the claims were vexatious.

30

the fact that I'm precluded by those orders of

31

Magistrate O'Dwyer on 9 September this year from even

1.MJ:ASC 02/12/08 2Cressy

FTR:1

27

Mr Ingleby of counsel

Now I've pointed out

DISCUSSION

1

giving you a copy of the order.

Mr Devries is not under

2

any such impediments so could I ask you first to request

3

Mr Devries to give you a copy of those orders so you can

4

review them?

5HIS HONOUR:

What orders are those?

6MR JOHNSON:

They're the orders - - -

7HIS HONOUR:

You don't - - -

8MR JOHNSON:

- - - which prohibit me using any documents

9

including Mr List's report.

10HIS HONOUR:

Just a moment Mr Johnson.

At the moment you

11

understand I'm offering you the opportunity to question

12

Dr List.

13MR JOHNSON:

That was very clumsy in the (indistinct) wasn't

14

it?

15

caught out by this because I have correspondence with me

16

from the independent children's lawyer which I'm not

17

allowed to refer to in these proceedings according to

18

(indistinct) O'Dwyer.

19

Dr Impus did not prepare a written report so I am

20

totally amazed that there is a written report.

21HIS HONOUR: 22

Your Honour may I provide the setting?

I have been

Putting in writing the fact that

Well at the moment I have in fact directed

Mr Devries not to enter into that issue.

23MR JOHNSON:

Yes.

24HIS HONOUR:

But simply I'm interested to hear the views of

25

Dr List based on his consultation with you late last

26

year and his reading of documents authored by you since

27

then and he's expressed views relating to whether he

28

considers you are able of looking after yourself in this

29

proceeding based on your mental state.

30

you the opportunity to ask Dr List questions in relation

31

to that issue, do you follow?

1.MJ:ASC 02/12/08 2Cressy

FTR:1

28

Now I'm offering

DISCUSSION

1MR JOHNSON:

Thank you Your Honour.

Sorry I do need to detour

2

just a little bit.

3

give evidence in rebuttal of what Dr List has said.

4

of those psychologists is in court today.

5

report was issued on 17 December.

6

absolutely scandalous allegations about me and is on its

7

face flawed in intent, design and methodology.

8

psychologist is present in court, Marianne Love.

9HIS HONOUR: 10MR JOHNSON:

I do have two other psychologists to One

Dr List's

It contains some

The

Well you - - It doesn't speak - it doesn't (indistinct) with me

11

and you should have a report on 7 December 2007, ten

12

days before Dr List was published and she spent about 12

13

hours with me.

14HIS HONOUR:

Well you can call Ms Love in a moment.

This is

15

the third time I'm saying it here.

16

opportunity to cross-examine Dr List in relation to this

17

issue.

18MR JOHNSON:

I'm offering you the

Your Honour I wish to do that at considerable

19

length, as in a couple of days in the substantial

20

hearing.

21HIS HONOUR:

No - - -

22MR JOHNSON:

I'm not sure how to downsize particularly to this

23

issue.

24

be in breach of Federal Court orders by referring to it

25

in these proceedings.

26HIS HONOUR:

I can say Dr List prepared this report.

I may

No I'll permit you to do it because Dr List has

27

obviously refreshed his memory from that report and in

28

the rules of cross-examination you're entitled to cross-

29

examine him on issues relevant to this matter.

30MR JOHNSON:

All right Your Honour I - - -

31HIS HONOUR:

You understand I'm not hearing at the moment the

1.MJ:ASC 02/12/08 2Cressy

FTR:1

29

DISCUSSION

1

substantive matters in the proceeding between you and

2

Ms Cressy.

3MR JOHNSON:

We haven't moved to them yet.

Your Honour I need to produce the expert evidence

4

of the two other psychologists who provided reports,

5

both of which are exhibits already in this proceedings

6

to show that this is a bit of a fix between Mr Devries

7

and Dr List and his report is just flawed.

8
did you spend time with me to prepare your report?---I

11

saw you at, on one, two, three occasions over a period

12

of approximately a month.

13I guess 30 October, 12 November and 22 November, that's three 14

weeks and a day, that approximates a month.

Do you

15

recall the circumstances of that meeting?

16

who was present at that first meeting on 30 October and

17

the duration of the meeting?---There was you - there

18

were you and the mother and Matthew Leighty.

Do you recall

19Sir may I ask when you prepared these reports in your mind the 20

people that you're interviewing or reporting on, what

21

term do you give to them?

22

---I'm not sure what the question is.

How do you regard them?

23You're a mental health professional?---Yes. 24Do you regard the subjects of your reports as customers or 25 26Yes.

patients?---For the purposes of these, clients. When Ms Cressy, Mr Leighty and I attended your offices on

27

30 October 2007 at about 10 a.m., I was 15 minutes late

28

on the day because I couldn't find your office.

29

think that you were interviewing patients or customers?

30

Was there a doctor/patient relationship in your mind?

31

---There was the relationship of me as an appointed

1.MJ:ASC 02/12/08 2Cressy

FTR:1

30

Did you

DISCUSSION

1

expert by the court to assess the Family Court - the

2

family relationships and the welfare of the children.

3So that if I - so I put it to you that you didn't regard 4

yourself as a mental health professional providing

5

mental health services to patients?---I wasn't there to

6

provide treatment.

I was there to provide assessment.

7So the normal professional attributes of a doctor/patient 8

relationship didn't exist?---I'm not sure what you're

9

asking me.

10HIS HONOUR: 11

You weren't a treating doctor for Mr Johnson?

---No, I was not.

12And you didn't regard anything - that any of the subjects of 13

your report said to you as being subject to the normal

14

doctor/patient obligations of confidentiality even as a

15

general rule or when specifically it was asserted by one

16

of those people that what he, specifically me, was

17

telling you was on a confidential basis?---No, I made it

18

- no, I did not.

19

that everything was reportable.

20

writing a report.

It was quite clear at the beginning The purpose of it was

21Your Honour, I might just pause just to catch my breath.

I

22

just want to remind Your Honour that there is the report

23

that psychologist Marianne Love has (indistinct) in

24

court.

25HIS HONOUR:

Yes.

26MR JOHNSON:

Which is in total opposition with any suggestion

27

You'll be able to call her or - - -

by (indistinct) or Dr List - - -

28HIS HONOUR:

I'll consider that in due course - - -

29MR JOHNSON:

As to any issues of mental incapacity.

30HIS HONOUR:

Is there anything in relation to that report you

31

wish to put to the doctor by way of question?

1.MJ:ASC 02/12/08 2Cressy

FTR:1

31

DISCUSSION

1MR JOHNSON:

Marianne Love's report or Dr List's report?

2HIS HONOUR:

Have you had the opportunity to look at Ms Love's

3

report?---I'm - I had forgotten that it exists but I've

4

just seen that it's actually here but I haven't looked

5

at it for a very long time.

6MR JOHNSON:

Your Honour, I have even shorter report that I

7

would like to read.

8

a known psychologist who is on standby.

9

been caught surprised I thought it would be about Day 10

10

He is - I've

or 15 of the trial before I had to call him.

11HIS HONOUR: 12

It's only one and a half pages but

Do you wish to read that to Dr List and ask him to

express a view on nit?

13MR JOHNSON:

I would be most grateful Your Honour.

14HIS HONOUR:

You're entitled to do that.

If you read it to

15

Doctor, if the Doctor will listen to it and then the

16

Doctor can express his views on what this psychiatrists

17

says.

18MR JOHNSON:

Now who's this psychiatrist Mr Johnson? This is Mr Michael Clarebrough.

He's a

19

psychologist and principal of MJ Clarebrough Associates

20

Pty Ltd, occupational consulting services.

21

broad psychological advice to the legal profession.

22

and countless other lawyers have been referred to him by

23

the Law Institute.

24

consulting services for ambulance drivers - - -

He provides I

And he also provides equivalent

25HIS HONOUR:

Now is Clarebrough a psychiatrist or psychologist?

26MR JOHNSON:

He's a psychologist Your Honour.

27HIS HONOUR:

Now you wish to read his report to Dr List.

28MR JOHNSON:

Maybe I can read a couple of paragraphs of my

29

affidavit in the Federal Court proceedings 28 May 2008.

30

I would like some assurance, if that's possible, that I

31

am not going to be prosecuted in the Federal

1.MJ:ASC 02/12/08 2Cressy

FTR:1

32

DISCUSSION

1

Magistrates' jurisdiction from breaching those orders of

2

Federal Magistrate O'Dwyer of 9 September - - -

3HIS HONOUR:

I don't know what the orders are.

But a moment

4

ago, you wished to put to Dr List a competing view, you

5

say, from a psychologist.

6MR JOHNSON:

Yes, Your Honour - - -

7HIS HONOUR:

Now you're entitled under the rules of cross-

8

examination to do that.

9MR JOHNSON:

I would have thought I'm entitled under s.121 of

10

the Family Law Act as well but Mr Devries convinced

11

Federal Magistrate O'Dwyer, with no prior warning to me,

12

otherwise.

13

$20,000 and two years imprisonment.

14

waives his - - -

15HIS HONOUR: 16

about.

And so I'm at peril of a fine of up to If Mr Devries

I don't know - I can understand what this is Mr Devries, what is this about?

17MR DEVRIES:

Sorry?

18HIS HONOUR:

What's this about?

19MR DEVRIES:

First of all, Mr Johnson was given notice of this

20

application - that these orders would be sought from the

21

court because he was given a copy of - - -

22HIS HONOUR:

That's not what I'm asking you.

23MR DEVRIES:

Can I hand up - - -

24HIS HONOUR:

Mr Johnson is referring me to some report of

25

Mr Clarebrough.

26

he can't read that report to Dr List without incurring

27

some sort of penalty from the Family Court.

28MR DEVRIES:

As I understand it, he's concerned that

The report of Mr Clarebrough has got - with

29

respect to Mr Johnson, has got nothing to do with the

30

Federal Magistrates' Court proceedings.

31HIS HONOUR:

Right.

1.MJ:ASC 02/12/08 2Cressy

So he can refer to that with impunity?

FTR:1

33

DISCUSSION

1MR DEVRIES:

He can.

2HIS HONOUR:

Thank you Mr Devries.

3MR DEVRIES:

As - sorry, with respect Your Honour, I think

4

Mr Johnson was also wanting to read to Dr List from an

5

affidavit that he made - - -

6HIS HONOUR:

That whom made?

Mr Johnson made?

7MR DEVRIES:

That Mr Johnson made in the Federal Magistrates'

8

Court proceedings.

And orders were made by Federal

9

Magistrate O'Dwyer that prohibited the applicant by

10

himself, his other agents from publishing in any form

11

any part of his affidavits filed herein save as follows

12

and strictly - one exception is strictly for the purpose

13

of any litigation with the applicant and the first

14

respondent are the only - which is my client, are the

15

only parties in provide that in the prosecution such -

16

no aspects of these proceedings or the contents of any -

17

of the applicant's proceedings in these proceedings is

18

published beyond the court and legal proceedings in

19

those - legal advisers in those proceedings.

20

I can hand up a copy - a sealed copy of those orders.

21

The reason that the orders were made Your Honour is that

22

Mr Johnson had been making affidavits common to these

23

proceedings, intervention order proceedings taken out by

24

him and Federal Magistrates' Court proceedings

25

containing and publishing details of the parties and the

26

children in breach of the Act.

27HIS HONOUR:

I understand that.

Let's - I think what we'll do

28

is Mr Johnson, firstly, you wish to read to Mr Devries -

29

to Dr List a part of Mr Clarebrough's report, is that

30

right?

31MR JOHNSON:

Yes.

1.MJ:ASC 02/12/08 2Cressy

FTR:1

34

DISCUSSION

1HIS HONOUR:

Right.

2MR JOHNSON:

Thank you Your Honour.

3HIS HONOUR:

You can put that in cross-examination to Dr List.

4MR JOHNSON:

Thank you Your Honour.

5

Well you're entitled to do that.

I didn't see Mr Devries

actually hand a copy of the orders to you.

6HIS HONOUR:

I don't need that at the moment because Mr Devries

7

has told me that that order does not preclude you

8

referring to Mr Clarebrough's report.

9

entitled to read part of Mr Clarebrough's report.

10MR JOHNSON:

Now you're

Nor Your Honour does it prohibit Mr Devries from

11

handing up Exhibit C1 being one of my affidavits to

12

Justice Cavanough using it as a basis to get some

13

extraordinary interlocutory relief that his client

14

wasn't always entitled to - - -

15HIS HONOUR:

Right.

Now you're cross-examining - - -

16MR JOHNSON:

- - - which is a document that I want to read from

17

Your Honour.

18

allowed to read it in these proceedings he's just told

19

you.

20HIS HONOUR: 21

It's Mr Devries' own document and I'm not

What is going on Your Honour? Mr Johnson, I think you're losing track of what

you were doing.

22MR JOHNSON:

I'm not Your Honour.

I wish to read one of

23

Mr Devries' own documents as he submitted, Exhibit C1 to

24

Mr Justice Cavanough in Practice Court proceedings, a

25

full day and a bit Practice Court hearing

26

commencing - - -

27HIS HONOUR:

You wish to put to - - -

28MR JOHNSON:

I wish to read the plaintiff's own document as

29

submitted and Mr Devries, the plaintiff's counsel, has

30

just told you that I will be breaching Federal Court

31

orders if I read the plaintiff's own document in these

1.MJ:ASC 02/12/08 2Cressy

FTR:1

35

DISCUSSION

1

very proceedings.

2HIS HONOUR:

What is that Your Honour?

Just a moment Mr Johnson.

You're now dealing with

3

a second matter.

If there was a document that was filed

4

in the present proceeding, you're entitled to refer to

5

me that you wish to - - -

6MR JOHNSON:

Not according to those orders sir - - -

7HIS HONOUR:

Just a moment.

8

putting.

9MR JOHNSON: 10HIS HONOUR: 11

But I don't understand what you're

- - - that O'Dwyer made sir. Are you wishing to cross-examine Dr List with that

document that was put to Justice Cavanough?

12MR JOHNSON:

Your Honour, I wish to read this report and

13

perhaps also part of Marianne Love's report to put pay

14

to these suggestions that I'm narcissistic effective or

15

manic or I have psychosis or paranoia.

16

that they are legitimate.

17

narcissistic effective or manic sir.

18

a $20,000 fine and two years imprisonment and read this

19

document to you.

20

Supreme Court proceedings 9665 tendered by the counsel

21

for the plaintiff in Practice Court hearing on 20 June

22

2008.

I'm certainly not I'm going to risk

It's Exhibit C1 in Federal - sorry,

23HIS HONOUR:

It's Exhibit, I'm sorry, C1?

24MR JOHNSON:

C1 Your Honour.

25

I have concerns

It's Mr Devries' own document he

handed up - - -

26HIS HONOUR:

Just a moment - - -

27MR JOHNSON:

- - - and I'm not allowed to read it to you.

28HIS HONOUR:

It was tendered to Justice - - -

29MR JOHNSON:

You have a copy in front of you I hope Your

30

Honour.

Heading "Johnson Family Co-parenting Assessment

31

Report", Paragraph 1.

1.MJ:ASC 02/12/08 2Cressy

FTR:1

36

DISCUSSION

1MR DEVRIES:

Could I have a look at it - - -

2MR JOHNSON:

I have for some months - - -

3MR DEVRIES:

I have no idea what Mr Johnson's talking about.

4

If I could have a quick look at it, I might be able to

5

identify what he's talking about Your Honour and find my

6

own copy of it.

7HIS HONOUR:

I think the - - -

8MR JOHNSON:

Your Honour, who's lacking mental capacity here?

9

Me or Mr Devries.

10HIS HONOUR:

Just a moment Mr Devries.

Mr Johnson, for what

11

purpose are you seeking to read this document?

12

for the moment to cross-examine Dr List or some other

13

purpose?

14MR JOHNSON: 15

To help Mr List, doctors to come to more balance

for you and realise that his report based on - - -

16HIS HONOUR: 17

Is it

And you say this is a document that was tendered

before Justice Cavanough.

18MR JOHNSON:

Yes.

Exhibit C1 Your Honour.

19HIS HONOUR:

Can you just show it to Mr Devries.

He might be

20

able to find it so that he can show me a copy of what

21

you're about to tender.

22MR DEVRIES:

He won't hand it to me Your Honour.

23HIS HONOUR:

Can you show it to him so he can assist the court.

24

No Mr Johnson - - -

25MR DEVRIES:

I'll give him an expressed undertaking that when

26

I've looked at it, I'll return it to him Your Honour and

27

I give that undertaking to look at it as well.

28HIS HONOUR:

Just have a quick look at it Mr Devries.

29MR JOHNSON:

Your Honour, if there's not a copy readily

30

available on your file, perhaps your tipstaff - - -

31HIS HONOUR:

I'm not too sure what it is.

1.MJ:ASC 02/12/08 2Cressy

FTR:1

37

DISCUSSION

1MR JOHNSON:

It's an affidavit that I made on the - I think it

2

was on the 27th or for a hearing on 27 August in Federal

3

Magistrates' Court proceedings MLC10308 - - -

4HIS HONOUR: 5

And you say it was handed to Justice Cavanough,

27 August - - -

6MR JOHNSON:

Mr Devries handed it up to Mr Justice Cavanough.

7HIS HONOUR:

On 20 June.

8MR JOHNSON:

On 20 June, yes.

9HIS HONOUR:

And what's the date of your affidavit?

10MR JOHNSON:

I think it's dated 25 or 27 August.

11MR DEVRIES:

It was filed on 27 May 2008 in the Federal

12

Magistrates' Court.

13HIS HONOUR: 14

this proceeding.

15MR JOHNSON: 16

And was handed, you say, to Justice Cavanough in

Yes.

Yes.

And that very copy was made by

Mr Cavanough's tipstaff and handed to me.

17HIS HONOUR:

Just a moment.

I'll see what I've got here.

18MR DEVRIES:

Your Honour, I concede that this document, more

19

particularly exhibits to this document were handed up

20

to - - -

21HIS HONOUR:

Justice Cavanough.

22MR DEVRIES:

- - - Justice Cavanough.

23HIS HONOUR:

Thank you Mr Devries.

24MR DEVRIES:

And on that basis Your Honour, I'd be submitting

25

that as it's a document already in these proceedings,

26

it's not - it wouldn't offend Federal Magistrates' - - -

27HIS HONOUR: 28

Yes.

helpful.

Thank you very much Mr Devries, that's very

You may use it Mr Johnson.

29MR JOHNSON:

Thank you.

30HIS HONOUR:

Remember what you are doing at the moment, you are

31

questioning Dr List as to a matter raised about your

1.MJ:ASC 02/12/08 2Cressy

FTR:1

38

DISCUSSION

1

capacity to defend these proceedings.

2Thank you, Your Honour.

(To witness) Dr List, I'd ask you to

3

listen very carefully please.

4

the heading, "Johnson Family Co-parenting Assessment

5

Report".

6

attending on Mr Michael Clarebrough, psychologist and

7

principal of M J Clarebrough Associates Pty Ltd,

8

occupational consulting services".

9

request, on 29 April 2008, Michael Clarebrough met with

10

myself and Julie Johnson, my legally married wife of 19

11

years (ten years estranged)" – not the plaintiff in this

12

proceedings, another lady, Your Honour, "regarding our

13

co-parenting arrangements for our three children.

14

produced and shown to me and marked HJJ8-1", it being

15

the first exhibit to my eighth affidavit in those

16

proceedings, Your Honour, "is a true copy of the report

17

that Michael Clarebrough prepared titled, 'Co-parenting

18

Assessment Report' dated 25 May 2008 defined as the

19

Clarebrough report".

20

paragraph on the first page of the Clarebrough report

21

has not been reproduced clearly due to facsimile

22

transmission.

23

younger children learned to swim at their father's

24

apartment in Melbourne.

25

explanation, that's my oldest of my three or four

26

children, 'has expressed interest in becoming a chef and

27

is very taken on the subject of robotics'".

28

last three full paragraphs on the second page of the

29

Clarebrough report actually describe my successful

30

co-parenting arrangements with my wife:" – this is a

31

direct quote from the report, Your Honour, Dr List,

1.MJ:ASC 02/12/08 2Cressy

The document reads under

Paragraph 1, "I have for some months now been

Paragraph 2, "At my

Now

Paragraph 3, "I note that the last

I believe it reads as follows, 'The two

FTR:1

David' – and by way of

39

Four, "The

DISCUSSION

1

"Julie Johnson states that James pays her regularly with

2

regard to maintenance and other costs associated with

3

their children.

4

interests of their children have at all time been their

5

principal concern.

6

and to enjoy a good friendship.

7

me that the information she provided to me was voluntary

8

and was a factual representation of their co-parenting

9

arrangement".

Both James and Julie stated that the

James and Julie appear well adjusted Julie Johnson stated to

And then there's a heading, "Summary".

10

Continuing from the report, the penultimate paragraph,

11

"The Johnsons appear to be well adjusted and their

12

co-parenting arrangement has been successful for the

13

past ten years" – this is written in May 2008.

14

paragraph, "I see no reason why this successful

15

arrangement will not continue.

16

healthy and happy and importantly enjoy and are doing

17

well at their respective primary and high schools".

18

me read – there's only a couple of other paragraphs in

19

the report ahead of those ones.

20HIS HONOUR: 21

Last

Their children appear

Let

You're reading your affidavit, is that right,

Mr Johnson?

22MR JOHNSON:

That was my affidavit and a substantial slice, I

23

think about half of the Clarebrough report.

24

report, Sunday, 25 May 2008, Michael Clarebrough works

25

on Sundays and as well as paying house visits to the

26

Dandenongs.

27

Julie Johnson (address known to the writer).

28

Introduction.

29

at his request.

30

Julie Johnson, to provide an objective view as to the

31

co-parenting of their children.

1.MJ:ASC 02/12/08 2Cressy

"Co-parenting Assessment Report.

This is the

James and

This report is provided for James Johnson

FTR:1

I was asked to meet with his wife,

40

They have not lived DISCUSSION

1

together since 1998.

They are still married".

Both

2

those facts are still current.

3

children" – I'll skip their names to protect them.

4

"They're in Year 10, Grade 5 and Grade 3 respectively."

5

Under the heading, "Access.

6

fortnight as he has done since the separation.

7

arrangement for access is entirely voluntary between the

8

children's parents.

9

both parents.

10

interviewed.

11

parents report they are proud they are all doing well at

12

school.

13

and takes his children swimming.

14

is a maths champion.

15

known as the King of the Mountain.

16

enjoy art and swim regularly at a certain pool" – I'd

17

prefer not to name.

18

protective reasons, sirs.

19

that they enjoy with their father".

20

paragraphs I've read earlier out of the affidavit.

21

two younger children learnt to swim at their father's

22

apartment", et cetera, et cetera, "And there's no reason

23

that that happy relationship won't continue".

24

firstly, Dr List, I might point out that Mr Clarebrough

25

had spent probably three times as much time with me by

26

that point and probably that much time against since

27

when he prepared that report.

28

before the report and three times subsequently with the

29

total amount of time that you spent with me, most of it

30

we were not alone on a one to one basis, isn't that

31

correct?---I don't know.

"The Johnsons have three

James has his children each The

It has worked successfully stated

The children were observed but not They appeared happy and healthy.

Their

James Johnson stated he plays golf with David

1.MJ:ASC 02/12/08 2Cressy

FTR:1

He states that Dillon

They go to a chess competition Jessica and Dillon

"This is a regular" – for

41

"This is a regular routine The last few "The

Now,

So at least three times

DISCUSSION

1In respect of the latter, I ask you to accept my word, in the 2

absence of Michael Clarebrough at the moment to give

3

evidence, he will give evidence later.

4

met on three occasions, the first was I might say – and

5

I expressed this to you, didn't I, I was quite surprised

6

that there was a Mr Leighty present?---I don't recall.

I'm saying we

7I expressed considerable concern that a man that I hadn't seen 8

for five years was suddenly popping up in your office

9

unannounced to me in the context of you preparing a

10

family report in respect of my long term post separation

11

co-parenting arrangement with Ms Cressy in respect of

12

her three children by three different men.

13

material on that going backwards and forwards as to Ms

14

Christie's claim as to whether the children have two

15

fathers or three father between them.

16

considerable concern about that didn't I?

17

recall?---I

18

don't - - -

There's

I expressed You don't

19No?---I accept that you - that you may well have done that, 20

that you were concerned about in that time one way or

21

another.

22

recall it.

So I'm not disagreeing with you.

I don't

23OK let me - excuse me Mr Devries am I allowed to read from 24

Dr List's report or am I violating those suppression

25

orders that apply to me but don't apply anyway to stop

26

you from (indistinct) in that Federal Magistrates' Court

27

material in these proceedings?

28HIS HONOUR:

Dr List my understanding has refreshed his memory

29

from the report.

30

on it.

31MR JOHNSON:

You're entitled to cross-examine him

Thank you, Your Honour.

1.MJ:ASC 02/12/08 2Cressy

FTR:1

42

I'll take that I'm not DISCUSSION

1

going to be fined $20,000 or locked up for a couple of

2

years by Federal Magistrate O'Dwyer although it would

3

give me access to legal aid.

4HIS HONOUR:

Dr List - just a moment I want to ask the doctor a

5

question.

6

nominated by you, can they affect the ability of

7

Mr Johnson to address relevant issues in the case?---

8

Yes, absolutely.

9MR JOHNSON:

(To witness) Do any of the three conditions

Dr List, am I demonstrating any lack of ability to

10

represent myself in my questioning or materials I'm

11

putting forward to you so far?---It is - certainly it is

12

from what I've seen this morning you have experienced

13

very considerable difficulties in focusing upon the task

14

at hand.

15

remotely sure really where the relevance is of what I

16

wrote a year ago have to do with your current

17

functioning and your capacity.

You have - and I'm not entirely sure or even

18That's actually a very sensible comment that last - that last 19

phrase.

20

am I demonstrating any ability to represent myself or

21

any need for a litigation guardian?

22HIS HONOUR:

Otherwise I regret the question.

I'm very concerned Mr Johnson.

Your Honour

This case is

23

obviously of substance.

It affects your interests in

24

properties and I'm deeply concerned as to your capacity

25

to properly look after yourself.

26MR JOHNSON:

Your Honour all of the - - -

27HIS HONOUR:

My suggestion to you is that you should apply to

28

have a litigation guardian appointed - - -

29MR JOHNSON:

Your Honour, I have no desire to do anything to

30

(indistinct) if there's any mental incapacity.

31

read perhaps from Marianne Love's report which was

1.MJ:ASC 02/12/08 2Cressy

FTR:1

43

May I

DISCUSSION

1

issued ten days prior to Dr List's report?

2HIS HONOUR:

You may certainly do that.

Can I ask you this

3

Mr Johnson, do you have someone who you trust such as a

4

mother who could act as litigation guardian on your

5

behalf?

6MR JOHNSON:

Your Honour believe it or not - - -

7HIS HONOUR:

Someone appropriate - - -

8MR JOHNSON:

- - - but my - my mother has been posthumously

9 10

resurrected by the plaintiff in these proceedings on two occasions - - -

11HIS HONOUR:

All right.

12MR JOHNSON:

About ten years prior to the - - -

13HIS HONOUR:

I'm sorry to hear that.

14

Well she's deceased is she?

Is there anyone who you

know such as a trusted solicitor - - -

15MR JOHNSON:

Your Honour I simply - I don't need any - - -

16HIS HONOUR:

- - - who could act as litigation guardian in your

17

interests?

18MR JOHNSON:

Your Honour, I don't - I don't need that.

My -

19

any - any constraints I have on my ability to represent

20

myself come from lack of - lack of technical experience

21

and training not from any mental health issues.

22HIS HONOUR:

Yes.

23MR JOHNSON:

Your Honour, one of the things that concerns me I

24

Well you - - -

have - - -

25HIS HONOUR:

Well firstly have you - I'm sorry I diverted you.

26

Have you finished asking Dr List questions in relation

27

to this issue?

28MR JOHNSON:

No, no I haven't Your Honour.

(To witness)

29

Dr List is there anything in the one and a half reports

30

I read to you from Michael Clarebrough which causes you

31

to reassess the suggestions that I might be

1.MJ:ASC 02/12/08 2Cressy

FTR:1

44

DISCUSSION

1

narcissistic, effective, manic or suffer psychosis or

2

paranoia?---No.

3Your Honour, when I - I saw Dr List on the second occasion as 4

is stated on the cover of the report I attended with the

5

youngest of my four children - at least I believe she's

6

my child although Ms Cressy refused to provide

7

scientific proof of that.

8

confidence a number of concerns that I had that I

9

couldn't raise on the previous occasions regarding Ms

I mentioned to Dr List in

10

Cressy and some of her recent behaviours.

I couldn't

11

raise them previously because the third adult in those

12

proceedings Mr Leighty wasn't aware of them and I didn't

13

want to inflame the circumstances.

14

these facts on the basis that they were private and

15

confidential between me to inform him because in no way

I told Mr - Dr List

16

did I want them brought into legal proceedings because I was

17

concerned of possible ramifications for the violence

18

inflicted by Ms Cressy on the children.

19

evidence of that and an assault that took place on - by

20

Ms Cressy on her own children on 30 September including

21

an eyewitness report from a neighbour and also police

22

evidence.

23

dear, oh dear.

24

I thought confidential disclosures.

25

were that Ms Cressy was a prostitute.

26

admitted this via her counsel before Justice Cavanough.

27

She admitted via Dr - Mr Devries that she works as a

28

prostitute three days a week.

29

she works simultaneously in three brothels.

30

an hour stuff and maybe one or two dozen clients.

31

of the witnesses who I've not met who may have answered

1.MJ:ASC 02/12/08 2Cressy

There is

I explained to him - let me see this was - oh No this - OK, OK.

FTR:1

45

There were additional The disclosures She has since

My evidence shows that That's $100 One

DISCUSSION

1

his subpoena and be in court is actually a man who

2

followed her home from one of those brothels many years

3

ago and commenced sordid aggressive behaviours which I

4

was left to protect Ms Cressy from.

5

report makes a comment in fact that I'm a very

6

protective generous man.

7

aggressive, abusive all of those things.

8

a confidential basis.

9

on 26 November there was an additional issue, Ms Cressy

Marianne Love's

I'm not narcissistic, I put that on

On the third meeting with Dr List

10

broke into my home and burgled me on the evening of 15

11

November.

12

correspondence from her former solicitor and David

13

Hanlon and police records, there's four boxes, four

14

archive boxes of my stolen goods and materials.

15

70 per cent of the loot from that heist sitting in the

16

evidence room in the Federal Magistrates' Court as

17

testimony to that.

18

basis that he wouldn't raise those allegations with Ms

19

Cressy.

20

them.

21

you raise them in person or on the phone with Ms

22

Cressy?---I raised the - is this relevant Your Honour?

23

I'm trying - - -

It's admitted in affidavits that she swore,

About

Now I put that to Dr List on the

Lo and behold without telling me he did raise Now can you remember how you raised them?

Did

24HIS HONOUR:

No, I'm trying to follow the relevance too.

25MR JOHNSON:

Your Honour it's not - - -

26HIS HONOUR:

What is it relevant to these - - -

27MR JOHNSON:

It's not paranoia if people are actually getting

28

up on you.

29

really are going out to get you.

30

credibility and competence as well.

31

of a very sensitive nature to this man on the basis that

1.MJ:ASC 02/12/08 2Cressy

It's reality.

FTR:1

46

You're not paranoid if people It goes to this man's I put allegations

DISCUSSION

1

they were to just inform background.

I didn't know how

2

to deal with them.

3

court proceedings because they were negative, they were

4

nuclear, they were destructive.

I didn't want them brought up in any

5I was trying to get this settled.

Continue the co-parenting

6

arrangement that Ms Cressy and I had had in place for

7

five, six years.

8

Cressy in person as documented in this report and then

9

secondly went back on 10 December by telephone, which

Dr List raised this firstly with Ms

10

strikes me as very strange behaviour.

11

of her responses as Dr List has recorded Ms Cressy made

12

some amazing allegations about me, I don't know

13

(indistinct) aren't you?

14

these out.

15

now I've known Ms Cressy by many names but never as

16

Pippa.

17

survived a complicated and difficult relationship with

18

James only to be confronted by what she viewed as a

19

continuing campaign in which she effectively stalked

20

members of her family".

21

allegation.

22

to achieve his ends".

23HIS HONOUR:

Let me see.

And in the course

I'll read all of

At p.15, this is Dr List's report, "Pippa" -

"Pippa presented as a loving mother who has

Simply not true, a false

"Her workplace, the school and her in order

All right well Doctor I think the (indistinct)

24

from that there may be some sort of question as to did

25

you take sides, consciously take sides in the dispute

26

between Mr Johnson and Ms Cressy?---No.

27MR JOHNSON:

Your Honour Ms Cressy put some allegations - - -

28HIS HONOUR:

Just a moment?---I think Your Honour what

29

Mr Johnson is here is to be attempting to be saying I

30

might have this wrong, what he appears to be saying is

31

that, that it wasn't - he wasn't being paranoid by

1.MJ:ASC 02/12/08 2Cressy

FTR:1

47

DISCUSSION

1

making these allegations.

2

facts.

That he was actually stating

3Yes?---At least in particular instances and I think that's as 4

far as I can take it.

5MR JOHNSON:

Your Honour, yes thank you Your Honour.

What I'm

6

saying is that I put statements of fact, allegations,

7

call them what you will to Dr List on a confidential

8

basis about Ms Cressy's behaviour on the understanding

9

that she never (indistinct) they were confidential and

10

he would not raise them with her.

He raised them with

11

her.

12

extraordinary allegations about me, things that I've

13

never conceived that she, in spite of all the horrible

14

things that she'd said about me in the past, had not

15

made up anything of this calibre before.

She then took that opportunity to bring out some

16Now you'd think that some even-handedness of methodology, if my 17

allegations about her are put to her and she admitted

18

them all Your Honour.

19

she admitted the burglary, she admitted the battery.

20

OK?

21

allegations don't mean - Dr List just wrote them up and

22

clothed them as findings of fact without even putting

23

any of those allegations to me.

24

allegations if I read Dr List correctly - - -

Simple.

She admitted the prostitution,

Three allegations, three admissions.

Her

One of those

25HIS HONOUR:

Well Mr Johnson you are straying very - - -

26MR JOHNSON:

Number one is that I'm a (indistinct) paedophile.

27HIS HONOUR:

Mr Johnson, just to remind you that the way this

28

court operates.

29

relevance of this inquiry.

30

matter to Dr List as of the activity.

31

effectively and I've rounded the question up for you.

1.MJ:ASC 02/12/08 2Cressy

FTR:1

You are now straying very much from the

48

You're really putting a You've put that

DISCUSSION

1MR JOHNSON:

Yes.

2HIS HONOUR:

Just bear in mind what the focus of this inquiry

3

is.

4MR JOHNSON:

Your Honour simply this man has nothing

5

uncreditable or of quality to say and as I've just

6

demonstrated by his lack of even-handedness - - -

7HIS HONOUR: 8

at this stage in relation to this issue?

9MR JOHNSON: 10

Your Honour I had about two days worth of

Well I would not permit you to question on this

issue - - -

17MR JOHNSON: 18

I don't, but do you

questioning so - - -

15HIS HONOUR: 16

I'm not answering questions.

wish to put any further question to - - -

13MR JOHNSON: 14

Do I need to put any more questions to satisfy you

that I'm quite mentally capacitated to represent myself?

11HIS HONOUR: 12

Do you have any other question to put to Dr List

- - - (indistinct) hearing.

I have the

written - - -

19HIS HONOUR:

On a substantive hearing I understand that, but on

20

this hearing which goes purely to the views that the

21

doctor has expressed as to your ability to look after

22

yourself in this proceeding.

23

questions you wish to ask him?

24MR JOHNSON:

Do you have any other

Perhaps a two parted question.

Dr List do you

25

have anything to say about your lack of even-handedness

26

in putting my confidential allegations about Ms Cressy

27

to her and her admitting them, making outrageous

28

allegations about me that you never even bothered to run

29

past me - perhaps did you know that I could readily

30

dismiss them?

31

methodology in the preparation of your report?---In

1.MJ:ASC 02/12/08 2Cressy

Why didn't you apply a balanced

FTR:1

49

DISCUSSION

1

terms of the question of confidentiality, I never agreed

2

to keep anything confidential.

3

exercise was the writing of a report.

4

could be said that I took what you - the allegation you

5

made which was a serious one about the mother's

6

profession that I took it seriously enough to make sure

7

that I had examined that question to the best of my

8

professional ability and I took you seriously enough to

9

raise that with her.

The whole purpose of the If anything it

Beyond that I've made no findings

10

of that.

I was never in that position to do that and as

11

far as I'm concerned I was very even-handed and

12

concerned for both of you and more particularly for your

13

daughter.

14Dr List I have some further questions on that.

I would like to

15

examine your findings because clearly you weren't even-

16

handed.

17

p.19 of your report, Dr List's words Your Honour, "My

18

views are summarised as follows: (1) This dispute

19

presents as highly contentious with multiple cross

20

allegations including domestic violence that may

21

(indistinct) extensive testings and findings of that"

22

i.e. it's a complicated Federal Magistrates' Court

23

proceeding, that's what I've been saying.

Let me see.

Under the heading, "Discussion" on

24HIS HONOUR:

Well Mr Johnson - - -

25MR JOHNSON:

"(2)" - - -

26HIS HONOUR:

- - - you're straying very badly from the issue

27

which is important.

28MR JOHNSON:

Your Honour it goes - - -

29HIS HONOUR:

Do you have any questions in relation to that

30

issue to put to Dr List?

31MR JOHNSON:

It just goes to the quality of this man's work.

1.MJ:ASC 02/12/08 2Cressy

FTR:1

50

DISCUSSION

1

It's atrocious Your Honour.

Point 18 on p.21, "His

2

trivialisation of Matthew (indistinct) seems consistent

3

with his view of himself as a (indistinct) cast in the

4

role of champion and Matthew is an irrelevant almost

5

ghostly figure, hovering in the background.

6

minimised and disregarded the relationships and the

7

wishes of both boys in the bond with Matthew".

8

me read another paragraph where Dr List laments that he

9

wasn't able to avoid writing the effect that all three

Further he

Now let

10

adults including Matthew himself really admitted that

11

he'd been absent from his own son's life for years at a

12

time, OK?

13

Matthew admits that Dr List laments that - - -

14HIS HONOUR:

When I raise it I'm trivialising.

When

All right now you're just making a speech

15

Mr Johnson.

16

to ask any more questions of Dr List.

17

desire to ask any more questions then I'll ask Dr List

18

to stand down.

19MR JOHNSON:

I've offered you many times the opportunity If you don't

Your Honour may I ask one more question?

OK.

20

Point 30 on p.23 of your report, Dr List you write, "(a)

21

There is a genuine father daughter relationship that

22

deserves support, (b) There are aspects of

23

Mr James that convey a subtle incestuous quality such as

24

the alleged bra knicker set.

25

interested in home schooling, the allegation made by

26

Pippa about incestuous behaviour and the covert

27

haircutting".

28

contained in allegations Ms Cressy made to you.

29

clothe those in confidentiality?

30

allegations sufficiently serious to have to put them to

31

me for the ready easy rebuttals that I could have given

1.MJ:ASC 02/12/08 2Cressy

James reported by Liana

Now all of those were malicious slander

FTR:1

51

Did she

You didn't think those

DISCUSSION

1

you?

2

findings of fact.

3HIS HONOUR:

You just wrote them up and clothed them as You went on further - - -

Well just a moment.

Dr List is entitled to answer

4

that?---I never made findings of fact.

5

purpose of a report is to - - -

Clearly the

6MR JOHNSON:

May I interrupt you at that point?

7HIS HONOUR:

No you may not Mr Johnson.

8MR JOHNSON:

My views are there are - - -

9HIS HONOUR:

Mr Johnson, you asked a question.

You let the

10

witness respond?---The purpose of providing a report to

11

the court is to be of assistance to the court in making

12

a final view (indistinct).

13

carefully made no findings of fact.

14

give findings of fact and I presented them, the issue

15

(indistinct) allegations as requiring findings of fact

16

and I presented the allegations on both sides to the

17

extent that it was relevant in order that the court

18

could be assisted.

19

in making such findings.

20HIS HONOUR:

In that regard I quite I never intended to

Beyond that I had no role whatever

Now Mr Johnson at the moment you are simply

21

attacking the witness' credit.

22

is the witness is giving evidence simply in your

23

interest as a concern he has as to whether you are able

24

to defend yourself in this proceeding.

25

entitled to ask him questions that go to his credit they

26

really do not help in my assessment of the substantial

27

issue I need to decide.

28MR JOHNSON:

The fact of the matter

Your Honour this witness is not doing anything in

29

my interest.

30

to strike him out of defending myself.

31HIS HONOUR:

Whilst you are

It's in the interest of Mr Devries' client

It's not for - - -

1.MJ:ASC 02/12/08 2Cressy

FTR:1

52

DISCUSSION

1MR JOHNSON:

But the reasons that I put - - -

2HIS HONOUR:

- - - assist you to defend yourself.

3MR JOHNSON:

- - - in my 18 page (indistinct) this morning sir.

4HIS HONOUR:

I'm sorry?

5MR JOHNSON:

It's just consistent with this man's scheme of

6

behaviour as I've described in my - - -

7HIS HONOUR:

Well I think that you seem - - -

8MR JOHNSON:

May I just clarify the last point please sir if

9

Your Honour please?

10HIS HONOUR:

Yes.

11MR JOHNSON:

Now is this or is this not a finding of fact by

12

you?

And if it's not, how can you say it's not?

13

read it again.

14

are aspects of James that convey a subtle incestuous

15

quality such as the alleged bra and knicker set.

16

reported by Liana and the covert haircutting".

17

you make a view like that without implicitly making

18

findings of fact as to any of those allegations by

19

Pippa?---As a lawyer you would know they are made as

20

allegations.

21

Each one of you them says, "As conveyed by" or "Was

22

alleged by".

I'll

Paragraph 30, "My views are (b) There

James How can

They are not made as matters of fact.

They are not findings of fact on my part.

23Sir I suppose "subtle incestuous quality" is an aspect of me 24

based on a false allegations of a bra and knicker set,

25

put to you by Ms Cressy but I was given no opportunity

26

by you to address prior to you writing your report.

27

can you (indistinct) aspect of me that you have found is

28

not a finding of fact?---There is an aspect of you

29

that's conveyed by those elements and it would be a

30

matter for the court - - -

How

31There's an aspect of me conveyed by allegations made by 1.MJ:ASC 02/12/08 2Cressy

FTR:1

53

DISCUSSION

1

Ms Cressy - - - ?---- - - and to be - sorry if I can

2

finish my answer.

3HIS HONOUR:

Mr Johnson?---And clearly it would be a matter for

4

the court to determine, to make findings about whether

5

those allegations were accurate.

6MR JOHNSON:

Your Honour how could any man with any degree of

7

education suggest that an allegation, an untested

8

allegation by one person conveys an aspect about the

9

person the subject of those allegations?

10HIS HONOUR:

All right Mr Johnson you've pursued this credit

11

issue long enough.

12

to a substantial matter I'll ask Dr List to stand down.

13

Going to his assessment, what's your conditions?

14MR JOHNSON: 15

Your Honour, I don't want to speak to Dr List

again until - - -

16HIS HONOUR: 17

Now if you've not going to move on

Well thank you, Dr List, you may stand down?

---Your Honour, can I raise one quick matter?

18You may?---In relation to my costs, I raised the matter with 19

Mr Johnson by repeated phone messages prior.

I

20

understood from the previous hearing, (indistinct), but

21

I understood that he had not paid the fee for

22

Dr Entwhistle's report.

23

But that was my understanding.

24

that if he did not contact me that I would charge him

25

for a full day out of concerns about his lenience to

26

undertake that.

27

the court.

That may or may not be correct. I'd indicated to him

So I'd request that it be a matter for

28Well I don't know that I can do much at the moment because I 29

just - - -

30MR JOHNSON:

Your Honour, I - - -

31HIS HONOUR:

Just be quiet.

1.MJ:ASC 02/12/08 2Cressy

FTR:1

54

DISCUSSION

1MR JOHNSON:

I'm sorry, sir.

2HIS HONOUR:

I've just had this application before me.

I hear

3

what you say, Dr List, but I think I'll just deal with

4

this first issue first if you don't mind.

5

Dr List.

6

Thank you,

(Witness excused.)

7<(THE WITNESS WITHDREW) 8MR JOHNSON: 9

This is quite important.

10HIS HONOUR: 11

Sir, I have one question based on that please.

Well I'm not hearing any issue on costs.

Is it on

this issue of costs?

12MR JOHNSON:

No, no.

Dr List was aware that under the interim

13

orders, I was to meet the $3300 fee for his report.

14

was also aware that I was under extreme financial duress

15

at the time and simply didn't have the funds - - -

16HIS HONOUR:

He

Mr Johnson, I just indicated that that issue is

17

not relevant to what I'm trying to determine at the

18

moment.

19

Mr Devries thinks should be put before me in relation to

20

this issue?

I understand that's the material that

21MR DEVRIES:

That's correct, sir.

22MR JOHNSON:

Please, Your Honour, could I - - -

23HIS HONOUR:

Now, I think you've indicated you either wish to

24

put material before me or call Ms Love who's in court?

25MR JOHNSON:

I'm sorry, sir?

26HIS HONOUR:

Did you say you wished to call the witness on this

27

issue?

28MR JOHNSON:

Purely on this issue of my - - -

29HIS HONOUR:

Capacity?

30MR JOHNSON:

Capacity.

31HIS HONOUR:

Yes.

1.MJ:ASC 02/12/08 2Cressy

FTR:1

55

DISCUSSION

1MR JOHNSON: 2

This is outrageous.

3HIS HONOUR: 4

Your Honour, I'm disgusted I even need to do this.

Well do you wish to put any material before me or

call the witness?

5MR JOHNSON:

Yes, could I call Marianne Love please?

6HIS HONOUR:

Yes.

7MR JOHNSON:

Just on this issue but I will be requiring her to

8

give evidence on the substantive - - -

9HIS HONOUR: 10

I understand that.

But we're only dealing with

this issue at the moment.

11MR JOHNSON:

Your Honour, just tidying up that last point,

12

Dr List when he wrote the report knew I was in extreme

13

financial distress and yet one of his findings – a

14

finding of opinion, not a finding of fact, was that I

15

had substantial economic capacity to continue with some

16

sort of campaign that he thought that I was running

17

against Ms Cressy.

18HIS HONOUR: 19

Well I'll hear from Ms Love.

You wish to call

Ms Love go give evidence?

20MR JOHNSON:

Yes, I do, Your Honour.

21HIS HONOUR:

Just a moment.

Thank you.

22<MARIANNE CATHERINE LOVE, sworn and examined: 23HIS HONOUR: 24

Ms Love, is your full name Marianne Catherine

Love?---Yes, that's right.

25What is your address, your professional address? 26

---Professional address is 3/421 Blackshaws Road, North

27

Altona.

28And your occupation?---I'm a psychologist. 29What are your qualifications?---I've been – I'm a psychologist. 30

I've done my masters in counselling psychology and a

31

post grad dip in psychology and a bachelor of science

1.MJ:ASC 02/12/08 2Cressy

FTR:1

56

DISCUSSION

1

majoring in psychology.

2Are you a practising clinical psychologist?---No, I'm 3

classified as a psychologist.

4

counselling psychology.

5

psychologist.

I've done my masters in

So I'm not a clinical

I'm a psychologist.

6Now, Mr Johnson. 7MR JOHNSON:

Thank you, Your Honour.

(To witness) Marianne, do

8

you happen to have a copy of your report with you?---

9

Yes, I do.

10And this is a report dated 7 December 2007, is that right? 11

---Yes.

12And for the preparation of that report, approximately how much 13

time do you think you will have spent with me, how many

14

appointments?---I'd have to go off the top of my head

15

because all your files have been subpoenaed by the

16

Family Court so I didn't have the opportunity to look at

17

all that so I don't have any information in front of me

18

except for this report.

19

ten sessions I would say that we had individually.

20

That's - I'm guessing here but there would have been

21

approximately - - -

22HIS HONOUR:

There were probably at least

Approximately when was that, Ms Love?---That would

23

have been from – I'm not sure when we started.

24

have been – it might be in my report here.

25MR JOHNSON: 26

Yes, it is in your report, Marianne?---So

28 August 2007.

27HIS HONOUR: 28

It might

And when was the last session?---The last session

I had with him since this report?

29Yes. 30MR JOHNSON: 31

No, no, we had sessions into January this year,

remember?---Yes, I'm asking - - -

1.MJ:ASC 02/12/08 2Cressy

FTR:1

57

DISCUSSION

1HIS HONOUR: 2

When have you last seen Mr - - -?---It would have

been in January, I think, or - - -

3This year?---Yes. 4MR JOHNSON:

January, February, this year.

Ms Love's report is an exhibit to one of my

5

affidavits.

6

think it might be Exhibit No.20.

7MR DEVRIES: 8

I'm just trying to track down which one.

I

HJJ08 to Mr Johnson's affidavit of 7 March, Your

Honour.

9HIS HONOUR:

Of 2008?

10MR DEVRIES:

2008, sorry, yes.

11MR JOHNSON:

Thank you, Mr Devries.

(To witness) So

12

approximately ten - - -?---So I've got here it's five

13

sessions.

14Sorry?---Since our initial appointment I've actually written 15

here that we've had five sessions.

16So we had five sessions?---Yes. 17Each session of about an hour?---Yes. 18And most of those times you saw me on my own?---Yes. 19On some occasions, did I have children with me?---Not within 20

the session, no.

21That's correct, isn't it, the children were waiting on the 22

side.

And we did, on one instance, discuss giving some

23

child specialist services for one of my children?---Yes.

24Sorry, I'm skipping off the mark there. 25

(indistinct) for my copy.

26HIS HONOUR: 27

Sorry, what was that exhibit number

Mr Devries?

28MR DEVRIES:

HJJ008.

29HIS HONOUR:

Thank you very much.

30

I actually need to

Now do you wish me to read

that Mr Johnson?

31MR JOHNSON:

Would that suffice Your Honour?

1.MJ:ASC 02/12/08 2Cressy

FTR:1

58

I think that DISCUSSION

1

would be most sufficient, thank you.

2HIS HONOUR:

Might be best if I have a quick read.

3MR JOHNSON:

It is quite short.

4

Only three and a bit pages

Your Honour.

5HIS HONOUR:

The major issues I'm concerned with Ms Love, is

6

that raised by Dr List in his evidence today.

7

understand that?---Yes, I understand.

Do you

8Do you have, from your reviews of Mr Johnson and anything that 9

you have seen in court today, do you have any

10

professional view that you can express in relation to

11

what has been put to me by Dr List?---In all the time I

12

saw Mr Johnson, I didn't make any diagnosis of a

13

psychiatric disorder in the way that Dr List has.

14

honest, I probably am a little bit concerned that -

15

about the - Mr Johnson being unable to kind of really

16

stick to the questions that you're asking and to stay on

17

topic.

18Yes.

To be

That's why I've let some things go to just to get some

19

sort of an idea for myself whether it is as a result of

20

what Dr List has put to me that will affect the ability

21

of Mr Johnson to defend himself.

22

gleamed from your report, Mr Johnson is an intelligent

23

man.

Do you agree with that?---Yes, I agree with that.

24

Yes.

Highly intelligent.

25And he's articulate.

My understanding, I

From a layman's perspective, it does seem

26

to me there's something underlying his inability to stay

27

with the issues that have been fairly clearly

28

articulated to him?---There seems to be - he does seem

29

to have some difficulty with that.

30

today.

31MR JOHNSON:

I can see that just

Excuse me Your Honour, may I make a comment and

1.MJ:ASC 02/12/08 2Cressy

FTR:1

59

DISCUSSION

1

ask some questions.

The incapacity I feel under is of a

2

legal nature.

3

imposed on me by the orders of Federal Magistrate

4

O'Dwyer made, particularly the one-sided and the extreme

5

one-sided nature of those orders on

6

9 September this year.

7

unreasonable paranoid distress.

8

as I explained in my written submission this morning,

9

referring to any parts of my affidavits in the Federal

I'm quite stressed by the constraint

And I don't think that's an I am prohibited from,

10

Magistrates' Court proceedings.

11

cent commonality of issues between these proceedings

12

which is fact in these proceedings regarding the

13

property and those proceedings which were a child

14

protection application that I initiated.

15HIS HONOUR: 16

Now there's a 90 per

Do you firstly, wish to ask Ms Love some

questions?

17MR JOHNSON:

Yes, Your Honour I must.

(To witness) Ms Love,

18

you say on p.4 of your report under the last paragraph

19

under the heading "Relationship History", "James

20

discussed that he last broke up with Pippin in April

21

2007."

22

year co-parenting arrangement.

23

has come to a head in recent months since James has

24

pushed for co-parenting arrangements and its formal

25

arrangements and distribution of wealth disputes have

26

developed.

27

has stolen from him", which Ms Cressy has admitted in

28

her own documents in these proceedings and to Dr List as

29

recorded in his report, "made false allegations", while

30

some of those false allegations were admitted in her

31

documents in these proceedings and in Dr List's report.

That was effectively the break down of our five

1.MJ:ASC 02/12/08 2Cressy

And that the situation

James reported since this time that Pippin

FTR:1

60

DISCUSSION

1

"Physically attacked him", unfortunately there's not a

2

lot of evidence of that.

3

there was evidence, "damaged property", there's also

4

evidence and admissions "and withheld the children from

5

seeing him."

6

of those are (indistinct).

7

wouldn't it?---Yes, there's no doubt that that would

8

definitely create stress.

And "the children," of which

Again there's admissions of that.

So all

That would create stress,

9And being locked in to seven caveats over six - seven caveats 10

over - sorry, caveats over six properties looking you

11

into seven mortgages when you were unable to fund the

12

monthly payments on any of them, that would create

13

stress?---Yes, that's true.

14Particularly after six or seven months?---Yes. 15The caveats dating in early May 07.

My incapacity to pay the

16

amount of earnings starting in April 07.

My incapacity

17

to pay the amount of borrowed funds commencing in

18

November 07.

19

And this report prepared on

20

7 December?---M'mm.

Things were really serious at that stage.

21And you say despite all of that stress, "James presents as 22

intelligent, articulate man, his mid 40s, reporting

23

symptoms of stress such as difficulties with

24

concentrating and high levels of worry."

25

implication is that that's quite natural in the

26

circumstances?---M'mm.

The

27And that I might have considerable mental fortitude and 28

resilience to be managing all so well at that time,

29

wouldn't you say?---I definitely didn't diagnose you

30

with any psychosis - - -

31No you didn't. 1.MJ:ASC 02/12/08 2Cressy

AS you said in the next line of the report FTR:1

61

DISCUSSION

1

Ms Love, "These symptoms do not meet a psychiatric

2

diagnosis."

3

Clarebrough who I have been consulting with extensively

4

during the course of this year.

5

him out of his practice, you'll be surprised but I

6

believe he may be available.

7HIS HONOUR: 8

Now Your Honour, I am able to call Michael

If you wish me to call

I wouldn't deprive you of that opportunity.

I'm

concerned as to how long this application - - -

9MR JOHNSON:

I'm concerned if I need to because I think this is

10

disgraceful for a plaintiff's counsel to raise.

It's

11

not his case to raise and just imagine if every

12

plaintiff did this in every proceedings, "Your Honour,

13

we have to win our case because the defendant is a nut

14

case."

15

evidence about Dr List's physical and mental in

16

firmament as I've put in affidavits in these

17

proceedings.

Now I've put - Your Honour, there is as much

18HIS HONOUR:

Do you wish to call - - -

19MR JOHNSON:

As material - - -

20HIS HONOUR:

Do you wish to call any other evidence Mr Johnson?

21MR JOHNSON:

Only if you think it's relevant Your Honour

22

because I certainly don't.

23HIS HONOUR:

It's a matter for you.

Do you wish to call

24

further evidence in relation to this application - this

25

issue.

26MR JOHNSON:

Your Honour, I believe the application is made by

27

Mr Devries for ulterior purposes within the meaning of

28

that expression that was given by the Queensland Court

29

of Appeal in Callanan's case.

30

improper.

31

what Federal Magistrate O'Dwyer described as what might

1.MJ:ASC 02/12/08 2Cressy

I believe it's most

He has no standing to do it.

FTR:1

62

It's part of

DISCUSSION

1

be perceived as a process already in underway that Mr

2

Devries was perhaps inviting the Justice O'Dwyer -

3

Federal Magistrate O'Dwyer to participate in to

4

undermine my legal position.

5

by Mr Devries putting forward Mr David List who really

6

has nothing - - -

7HIS HONOUR: 8

I'll offer you the opportunity

Mr Johnson - - -

9MR JOHNSON: 10HIS HONOUR: 11

It's a beat up brought up

- - - nothing of quality or credibility - - Mr Johnson, do you wish to call Mr Clarebrough to

give evidence in this application?

12MR JOHNSON:

I'm happy for guidance from you Your Honour

13

whether you think that there's any need to disturb

14

Mr Clarebrough.

15HIS HONOUR:

I am concerned as to the evidence given by Dr

16

List, I'm concerned about your presentations today, I'm

17

concerned about your inability to address what is not a

18

difficult issue particularly in comparison with what I

19

would suspect to be more complex issues should the

20

substantive case commence.

21MR JOHNSON:

It would not be a difficult issue Your Honour but

22

for the orders - the one-sided draconian orders made by

23

Federal Magistrate O'Dwyer on 9 September 2008 which

24

Your Honour you still haven't seen a copy of from

25

Mr Devries.

26HIS HONOUR:

It's a matter for you Mr Johnson.

I will stand

27

the matter down to 2.15 if you wish to have the

28

opportunity to call Mr Clarebrough.

29MR JOHNSON:

Sir, may I ask you to read my submission please.

30HIS HONOUR:

The one you've just handed - - -

31MR JOHNSON:

The one that I faxed to your chambers - - -

1.MJ:ASC 02/12/08 2Cressy

FTR:1

63

DISCUSSION

1HIS HONOUR:

I've had a read of it.

That goes to the

2

substantive issues.

3

the preliminary matter that has been raised and about

4

which I have some real concerns.

5MR JOHNSON:

It does not seem to me to touch on

Perhaps before we recess, I can respond to some of

6

Mr Devries opening remarks so we at least get those out

7

of the way this morning sir.

8HIS HONOUR: 9

Yes, I can hear that.

Have you finished with the

evidence of Ms Love?

10MR JOHNSON:

I have yes, thank you Your Honour.

11HIS HONOUR:

Ms Love, is there anything you've seen this

12

morning that has caused you greater concern than you

13

observed in your counselling sessions?---I didn't see

14

Mr Johnson in the context of him reprimanding himself so

15

it's difficult for me to really think about that in the

16

context of counselling.

17

getting through stress and managing.

18HIS HONOUR: 19

It's more supportive and

Yes?---I guess what I said before which was my

only concern is staying on topic.

20Yes?---Yes, I don't have a doubt in his intellect and ability 21

to describe or reflect what he's thinking.

22MR JOHNSON: 23

Your Honour, excuse me a question by way of re-

examination if I may - - -

24HIS HONOUR: 25MR HEATH:

Just a moment - - -

26

Ms Love, do you have much experience of observing

lawyers in action in the court room?---No.

27Have you ever appeared in this context previously?---I have 28

come a couple of times.

29You have.

OK.

30HIS HONOUR:

Mr Devries, do you wish to ask any questions?

31MR DEVRIES:

Just one or two please.

1.MJ:ASC 02/12/08 2Cressy

FTR:1

64

DISCUSSION

1HIS HONOUR: 2

Yes.

I'll permit - Mr Johnson, I'll let

Mr Devries ask quickly.

3
disorder is, aren't you?---Yes.

6It's a label that's come from DSM4 revised, doesn't it? 7

---Yes.

8And isn't it true that one of the manifestations of that 9

condition is that the people who have it, are very, very

10

good at hiding it from their therapists?---I don't feel

11

I can comment on that.

I'm not sure.

12You don't know enough about the condition to comment on that? 13

---That's probably true.

I'm not a clinical

14

psychologist.

15

narcissistic personalities.

16

in private practice.

I haven't dealt with a lot of It doesn't present commonly

17You see I'm putting to you that one of the problems that people 18

who have a narcissistic personality disorder have is

19

that they can't get effective therapy because they've

20

convinced the therapist - first of all, they don't

21

accept that anyone knows anything better than they do.

22

Is that right?---M'mm.

23And if Mr Johnson has a narcissistic personality disorder, he's 24

not going to submit to anyone knowing anything better

25

than he does, isn't that correct?---But I'd still make

26

my assessment and I didn't make that assessment based on

27

other things that came up in the context of counselling.

28

I didn't make that assessment.

29But the reason you didn't make the assessment is you didn't 30

turn your mind to it, isn't it?---No, that's not true.

31See I suggest to you it's notorious with that condition that 1.MJ:ASC 02/12/08 2Cressy

FTR:1

65

DISCUSSION

1

people go through years and years of therapy with highly

2

qualified therapists and the therapists be fooled by the

3

person into believing that there's nothing wrong with

4

them.

5

---I'd have to look at the stats on that.

6

feel in a position to comment.

That's correct, isn't it?

7You should look at the reading on it. 8

There are some

very - - -

9HIS HONOUR:

Now you're getting away from questions.

10MR DEVRIES:

I'm sorry Your Honour.

11MR JOHNSON:

I'm confused Your Honour.

12

I don't

Is Mr Devries a legal

practitioner or a psychological - - -

13HIS HONOUR:

Just a moment I have just raised - - -

14MR JOHNSON:

How is he qualified to make those same assertions

15

from the Bar table?

16HIS HONOUR:

I've just raised the same objection Mr Johnson.

17MR JOHNSON:

We have the same personality - - -

18HIS HONOUR:

Do you profess any significant familiarity with

19

the people with narcissistic personality disorders?

20

---Only in the context of what I would see in private

21

practice and what I understand of the DSM4.

22

doesn't come up commonly.

23

private practice.

So it

It really doesn't in my

24Yes?---Not with the people that I see, yes. 25MR DEVRIES:

Just one more question, Your Honour.

26HIS HONOUR:

Yes.

27MR DEVRIES:

Mr Johnson self-evidently isn't coping with the

28

proceeding at the moment, isn't that correct, from your

29

observation as a psychologist?---Explain what you mean

30

by not coping and - - -

31Well he's not - he keeps interrupting His Honour is that 1.MJ:ASC 02/12/08 2Cressy

FTR:1

66

DISCUSSION

1

correct?

2MR JOHNSON: 3

Your Honour, isn't that a matter for your judgment

not the witness - - -

4HIS HONOUR: 5

You've seen that happen?

Yes well I think you've already addressed

what - - -?---What's the question?

6The relevant point and that is the difficulty to stay on line 7

with the relevant issues?---Yes, that was - - -

8MR DEVRIES:

I won't take it any further.

9HIS HONOUR:

I can cope with interruptions.

10MR JOHNSON:

I've had worse.

Excuse me sir should I submit for some blood

11

pressure test or GP test during the luncheon to show

12

that I'm physiologically coping fine.

13HIS HONOUR:

Mr Johnson that's not the point.

14MR JOHNSON:

I'm just surprised by the application.

15HIS HONOUR:

Thanks Ms Love.

You may stand down?---Thank you.

16<(THE WITNESS WITHDREW) 17HIS HONOUR:

Now did you say you wish to make some submissions

18

to me now or do you wish to perhaps use the interim to

19

try to get hold of Mr Clarebrough?

20MR JOHNSON: 21

to those preliminary - - -

22MR DEVRIES: 23

Sir, perhaps a couple of minutes to just respond

Just before we do that, Your Honour, I'm concerned

about the large number of witnesses in court - - -

24HIS HONOUR:

So am I.

25MR DEVRIES:

- - - and obviously for a lot of them economics

26

are ticking.

27HIS HONOUR:

Well I asked before are there any witnesses in

28

court to whom this issue is irrelevant.

29

better even ask anyone to come forward if they consider

30

- would you please come forward madam and let's see if

31

we can deal with them.

1.MJ:ASC 02/12/08 2Cressy

FTR:1

Perhaps I had

I apologise to keep you waiting 67

DISCUSSION

1

but I - just a moment, Mr Johnson, please.

2MR JOHNSON:

I was just going to say, Your Honour, in normal

3

court process all the witnesses should be outside of

4

court.

5HIS HONOUR: 6

None of them should be - - No, that's not right.

Now sorry, madam,

you're - - -

7MS BRIGGS (From the body of the court):

I'm Karen Briggs from

8

Melbourne Inner City Management from the rental

9

department.

10HIS HONOUR: 11MS BRIGGS:

You've been subpoenaed in relation to - - (Indistinct) subpoenaed documents from our office

12

which we sent to his office and he subpoenaed me to come

13

in to the court.

14

know - - -

15HIS HONOUR:

I'm not sure why.

Yes, well I think the best thing to do is to

16

adjourn your subpoena.

17

current issue today.

18

and excuse you from attendance.

19MS BRIGGS:

I don't even

Thank you.

20HIS HONOUR:

We won't be getting past this I'll simply adjourn that subpoena

So I can leave?

Yes, if you are notified that you're needed to

21

attend that will reactivate the subpoena.

22

right?

23MS BRIGGS: 24HIS HONOUR: 25

Is that all

OK thank you. Thank you very much.

I'm sorry to keep you

waiting so long.

26MR ENWRIGHT (From the body of the court):

Kevin Enwright

27

principal of the children's primary school.

28

quite sure - - -

29HIS HONOUR:

I'm not

We're very sorry to have kept you waiting.

30

apologise.

31

subpoenaed.

1.MJ:ASC 02/12/08 2Cressy

The same applies to you.

I

You've been

We will not be dealing with substantive FTR:1

68

DISCUSSION

1

issues.

I think the best thing is if I adjourn your

2

subpoena off.

3

need to attend if you could attend under the same

4

subpoena.

If and when you're notified there's a

Thank you.

5DR LIST (From the body of the court): 6

Your Honour I also think

I need to know where I stand in all - - -

7HIS HONOUR:

I agree.

Thank you you're excused from attending

8

further.

9

- I'll adjourn your subpoena off so that if you are

10

required to attend on the substantive issues if you

11

could treat - take notice of reactivation of the

12

subpoena.

13DR LIST:

Thank you, Your Honour.

14HIS HONOUR: 15

If the substantive issues reactivate then the

Thank you, Dr List.

Is there anyone else

who - - -

16MS LOVE (From the body of the court): 17

Do you need me to

stay - - -

18HIS HONOUR: 19MS LOVE:

No, the same applies to you.

Thanks Ms Love.

Thanks (indistinct).

20HIS HONOUR:

Anyone else?

21MR JOHNSON:

Sorry, Your Honour, there are a number of people

22

in court sitting behind me that I don't know.

23

wondering if they might identify themselves please.

24

don't know whether they're here in response to my

25

subpoenas or - - -

26HIS HONOUR:

I'm just I

I've already called for anyone who has been

27

subpoenaed and wish to be excused from further

28

attendance today to ask, they have done so.

29

open court - - -

This is an

30MR JOHNSON:

So I'm not - - -

31HIS HONOUR:

- - - and we don't normally require people - - -

1.MJ:ASC 02/12/08 2Cressy

FTR:1

69

DISCUSSION

1MR JOHNSON:

Thank you, Your Honour.

2HIS HONOUR:

- - - who attend to identify themselves.

3MR JOHNSON:

Thank you, Your Honour.

4HIS HONOUR:

Now do you wish to make any submissions at the

5

I don't - - -

moment on - - -

6MR JOHNSON:

Yes, I do.

I just wish to respond to some of

7

Mr Devries's comments.

Mr Devries is saying that he

8

thought that I wouldn't turn up, I don't - today.

9

That's why there will probably be a two day hearing.

I

10

don't know what led him to believe that.

11

and scandalous scuttlebutt.

12

appearance and my actual non-serving of the summons and

13

supporting affidavit and my substantial defence and

14

counterclaim in the other relevant proceedings,

15

Proceedings 9263 of 2008, I will apologise to Master

16

Daly for not appearing but I was concerned because I'm

17

constrained not only by those one sided orders by

18

Federal Magistrate O'Dwyer in the federal magistrate

19

jurisdiction.

20

That's bizarre

In terms of my non-

There are also some gagging orders by Mr Justice

21

Cavanough, in particular to a lesser extent Justice

22

Hansen, that Mr Devries secured for his client through a

23

one day plus

24

Practice Court hearing which every litigator I've spoken to,

25

double figures, since those dates just looks at me with

26

shock, slack jaw.

27

thing on the morning - - -

28HIS HONOUR:

As Mr Justice Cavanough said first

Now I do appreciate Mr Johnson all I'm asking you

29

do at the moment is to address this issue as to

30

your - - -

31MR JOHNSON:

I'm sorry, Your Honour.

1.MJ:ASC 02/12/08 2Cressy

FTR:1

70

I thought you were DISCUSSION

1

allowing me to address Mr Devries's opening remarks and

2

this issue of litigation guardian - - -

3HIS HONOUR: 4

Yes that's what I'm asking you to address.

You

say what you're putting is relevant to that topic?

5MR JOHNSON:

No, no.

I thought the litigation guardian

6

application I've been surprised with this morning, I

7

thought Your Honour was putting that off till 2.15.

8HIS HONOUR:

No, no.

9MR JOHNSON:

You're allowing me just to respond to

10

Mr Devries' opening comments?

11HIS HONOUR:

Well I don't - the opening comments were simply,

12

there was I think some concern as to whether you might

13

attend or not.

14

question, do you wish to make any remarks - make any

15

submissions relating to the litigation guardian?

Well you have attended.

Now the

16MR JOHNSON:

Not before 2.15.

17HIS HONOUR:

Did you want to respond to some other matters?

18MR JOHNSON:

I do want to explain why, why I didn't serve

19

the - - -

20HIS HONOUR:

Well you've made them.

21MR JOHNSON:

- - - pleadings and documents in the other matter

22

relevant to one of the properties which was the matter

23

listed before Master Evans yesterday and the reason is

24

because the orders Mr Justice Cavanough made on or after

25

20 June this year there were kind of two sets of orders,

26

there were his verbal orders that he made on the late

27

afternoon, early evening of 20 June being the Friday and

28

then the actual written ones that were produced undated

29

and I didn't get a copy of until 31 days later.

30

provided by a non party to the proceedings.

31

prohibit me from taking any active step to communicate

1.MJ:ASC 02/12/08 2Cressy

FTR:1

71

A copy

They

DISCUSSION

1

with et cetera, et cetera, et cetera encourage or lead

2

to my mortgagee taking action to take possession of that

3

property.

4

keeping your attention.

Now if I file a defence - sir I hope I'm

5HIS HONOUR:

Yes - - -

6MR JOHNSON:

If I file a defence which is 99 per cent

7

admission, isn't that taking an active step towards the

8

mortgagee taking possession of that property?

9

that a contravention of Justice Cavanough's order of 20

And isn't

10

June?

So again I'm in peril of breaching court orders

11

by doing the things that a defendant would normally do

12

to protect his own interests.

13

Devries has secured and I believe in a questionable

14

methodology as I put in my submission this morning and

15

in other affidavits and in materials that Mr Devries

16

himself provided to the legal services commissioner.

17

feel constrained by court orders.

One set of orders that Mr

I

18HIS HONOUR:

Well I think (indistinct) will be on Mr - - -

19MR JOHNSON:

My ability to represent myself, nothing to do with

20

any - - -

21HIS HONOUR:

What Mr - - -

22MR JOHNSON:

- - - emotional or intellectual capacity.

23HIS HONOUR:

- - - Devries might have said or didn't say this

24

morning, the main issue that's been raised is this

25

question of your capacity to defend yourself.

26

think the best thing to do is I'll stand the matter down

27

to 2.15, give you the opportunity firstly to obtain any

28

evidence in relation to that issue that you wish to and

29

secondly if you wish to formulate any submissions

30

focused on that issue because I have to tell you I am

31

concerned about that issue, but if you wish to put

1.MJ:ASC 02/12/08 2Cressy

FTR:1

72

What I

DISCUSSION

1

forward some evidence to assist it would be important in

2

your interest and in the interests of the court.

3MR DEVRIES:

Sir just before you rise.

4HIS HONOUR:

Yes.

5MR DEVRIES:

Can I just flag something that - so that

6

Mr Johnson can give some thought to that.

Your Honour

7

has also before you an application by Mr Johnson that

8

was referred to Your Honour by Master Evans and that -

9

essentially an application by Mr Johnson seems to have

10

the court direct mortgagees to take possession of the

11

property the subject of the proceedings before Your

12

Honour.

13

Honour is that my client would have no objection to

14

orders being made on that application that the

15

properties be sold out of court and that the proceeds of

16

sale be paid into court pending the outcome of these

17

proceedings.

18

cases mortgagees have entered into possession, in other

19

cases they may enter into possession but the longer

20

mortgage payments aren't being made the longer the

21

other - - -

22HIS HONOUR:

Your Honour what I would like to flag Your

The difficulty is Your Honour that in some

Are the properties the subject of Mr Johnson's

23

application?

24

mortgagees' actions at the moment?

25MR DEVRIES: 26

Some are.

We anticipate that some might be

but - - -

27HIS HONOUR: 28

Properties that are the subject of

And is Mr Johnson's application that those

properties be sold?

29MR DEVRIES:

His application was that the mortgagee, that the

30

mortgagees if they haven't already taken possession, be

31

ordered to take possession and sell the properties.

1.MJ:ASC 02/12/08 2Cressy

FTR:1

73

DISCUSSION

1HIS HONOUR:

You can't order them to take possession.

2MR DEVRIES:

No that's right.

But my client would be happy for

3

- sorry, would be content for an order that those

4

properties that aren't in the hands of mortgagees be

5

sold out of court and the proceeds be - net proceeds be

6

placed in the court fund.

7

being would be who has control of the sale.

8HIS HONOUR: 9

The only issue of controversy

Yes well I can hear the parties on that this

afternoon - - -

10MR DEVRIES:

But I'm just flagging to Mr Johnson that - - -

11HIS HONOUR:

Yes well - - -

12MR DEVRIES:

- - - that's where my client stands on that.

13HIS HONOUR:

Yes well there seems to be some common ground on

14

that.

I'll hear from the parties - I'm concerned

15

Mr Johnson that you have the opportunity to gather what

16

evidence you need to in relation to this first issue.

17

So that the longer we delay standing the matter down the

18

more difficult it might be for you to do that.

19

I'll do, I'll stand down to 2.15.

20

Devries flag what seems to be a fair bit of common

21

ground with you on your application and we can attend to

22

that after lunch.

23MR JOHNSON:

Sir may I respond?

24HIS HONOUR:

Briefly.

25MR JOHNSON:

Thank you.

26

What

You've heard Mr

Look it is my application and I

address it in my submission this morning.

27HIS HONOUR:

Yes.

28MR JOHNSON:

On precisely that point.

29HIS HONOUR:

Well I'll have a read of that, but if the parties

30

are in agreement that certain properties need to be

31

sold, would it not be best to - a mechanism be developed

1.MJ:ASC 02/12/08 2Cressy

FTR:1

74

DISCUSSION

1

that it be sold, appointment of an agent to sell them,

2

that mechanism for the agreement of a reserve price, for

3

the mortgagees to be paid out and the balance to be paid

4

into court?

5MR JOHNSON: 6

Your Honour I did all this 12 months ago and these

people blocked me and that caused me - - -

7HIS HONOUR:

Well are you - - -

8MR JOHNSON:

- - - over $300,000 of damage.

9

Effectively I'm

putting up security for costs for this vexatious claim.

10

I reckon that they should do likewise.

11

it goes to the issue and the cause.

12HIS HONOUR:

It goes to the -

All right, we'll deal with this after lunch.

I

13

don't think we're really addressing the point that I've

14

raised.

15MR JOHNSON:

I think I've (indistinct).

16HIS HONOUR:

I'll read it thank you Mr Johnson.

17MR JOHNSON:

Thank you sir.

18HIS HONOUR:

I'll stand down till 2.15.

19LUNCHEON ADJOURNMENT 20

1.MJ:ASC 02/12/08 2Cressy

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75

DISCUSSION

1UPON RESUMING AT 2.14 P.M.: 2HIS HONOUR: 3

Now I should just ask, Mr Johnson do you wish to

call any evidence in this preliminary matter?

4MR JOHNSON:

Sorry Your Honour?

5HIS HONOUR:

Do you wish to call any further evidence on this

6

preliminary matter?

7MR JOHNSON:

Mr Clarebrough or anyone like that?

I'm trying to contact Mr Clarebrough, I've left

8

messages and if Your Honour believes that would assist,

9

I'd certainly make him available.

10

He'll contact me as

soon as - - -

11HIS HONOUR:

Thank you very much, thanks.

Now I understand we

12

have someone from the public advocate has made themselves

13

available, Ms McNamara.

14MS McNAMARA: 15

Yes my name is Ms McNamara from the (indistinct)

public advocate.

16HIS HONOUR:

Yes.

Thank you for coming at short notice.

An

17

issue has been raised by counsel to the plaintiff in this

18

proceeding as to whether Mr Johnson ought to have the

19

litigation guardian available to him.

20

Mr Johnson has resisted to that.

21

put before me on which I'll need to make a decision.

22

question which really arises is there's no one who

23

springs to mind as to who would be a litigation guardian

24

were I to suggest or rule that one should be appointed.

25MS McNAMARA: 26

Some evidence has been The

Yes, Your Honour if I could perhaps just refer

you to s.66 in the Guardianship and Administration Act.

27HIS HONOUR: 28MS McNAMARA:

Yes. Which provides that a court may refer a matter to

29

the Victorian Civil and Administrative Tribunal for the

30

appointment of a guardian and/or administrator.

31HIS HONOUR:

Yes.

1.MJ:ASC 02/12/08 2Cressy

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76

DISCUSSION

1MS McNAMARA:

The position - our office is quite routinely

2

asked to be litigation guardian for litigants and we

3

have - - -

4HIS HONOUR: 5MS McNAMARA:

Yes. - - - a practice guideline that sets out our

6

understanding of the role and the circumstances in which

7

we would agree.

8

Administration Act it sets out that there is powers of an

9

administrator.

10HIS HONOUR: 11MS McNAMARA: 12

Further in that Guardianship and

Yes. And one of the powers of an administrator is to

bring and defend legal proceedings.

13HIS HONOUR: 14MS McNAMARA:

Yes. And the rules of the Supreme Court which provide

15

for the appointment of litigation guardian for a person

16

under a disability.

17

otherwise provided it says, "Except where otherwise

18

provided by or under any other Act, a person under a

19

disability shall commence or defend a proceeding by his

20

or her litigation guardian".

21

those rules is that the Guardianship and Administration

22

Act does otherwise provide (indistinct) alternative

23

effectively is for a person to have an administrator to

24

bring and defend legal proceedings rather than a

25

litigation guardian.

26

Guardianship and Administration Act for the appointment

27

of an administrator would need to be met but the first

28

step would be to make an application and the court, the

29

court can do that or really any person can make an

30

application to the tribunal.

31HIS HONOUR:

There's reference to that if

And our interpretation of

Clearly the requirements in the

Yes I follow.

1.MJ:ASC 02/12/08 2Cressy

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77

DISCUSSION

1MS McNAMARA:

The reason Your Honour that our office is

2

reluctant to take on these sorts of matters is we have no

3

particular expertise.

4HIS HONOUR: 5MS McNAMARA: 6HIS HONOUR: 7MS McNAMARA:

Yes. And - - Well that's a concern I have is that - - We have not been involved in - my understanding

8

of this matter is that it's a settlement, consequent to

9

relationship break - - -

10HIS HONOUR:

Breakdown of a relationship.

As I understand

11

Mr Johnson has a number of properties in his name.

12

plaintiff is seeking orders to adjust the interest in her

13

- in respect to those properties in her favour and I

14

would be concerned particularly is Mr Johnson does not or

15

he opposes this application, I'll be concerned not to

16

undertake anything that disadvantages defence rather than

17

to enhance his ability to defend the proceeding.

18MS McNAMARA:

The

The sorts of matters Your Honour that our office

19

has been litigation guardian and it's a fairly rare event

20

as I understand, have been the matters that we would

21

consider to be lifestyle type matters.

22

the business of our office in terms of guardianship

23

orders under the Guardianship and Administration Act.

24

we've been involved in proceedings under the Family Law

25

Act in relation to arrangements for children because

26

that's a matter that an administrator might be reluctant

27

to be involved in.

28

course for an administrator, certainly state trustees and

29

other professional type administrators to be involved in

30

these sorts of these proceedings as administrator.

31HIS HONOUR:

That really is

So

But I think it would be a matter of

Yes I follow.

1.MJ:ASC 02/12/08 2Cressy

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78

DISCUSSION

1MS McNAMARA: 2HIS HONOUR: 3

And they have the expertise. Yes.

No, well thank you very much for that.

That's of great assistance.

4MS McNAMARA:

If I may be excused?

5HIS HONOUR:

Yes, thank you.

6MR JOHNSON:

Excuse me Your Honour.

7HIS HONOUR:

Yes.

8MR JOHNSON:

Firstly may I ask, in the circumstances may I keep

9 10

You are excused.

my mobile phone switched on in case Mr Michael Clarebrough attempts to contact me?

11HIS HONOUR:

I have come to the view that I don't need to hear

12

from Mr Clarebrough, Mr Johnson.

13

turn it off.

14MR JOHNSON: 15

Thank you.

Thank you Your Honour.

So the answer's you may

May I also say that I do

have a very good friend on the way to court.

16HIS HONOUR:

Yes.

17MR JOHNSON:

Supposedly for moral support.

I believe we have a

18

long way to go and I have some submissions, which I hope

19

to satisfy you that I'm neither a minor or a handicapped

20

person within the meaning of your (indistinct).

21HIS HONOUR:

Yes.

Well can I say this, I have given the matter

22

careful consideration over lunch and I have come to the

23

conclusion you are not handicapped either.

24MR JOHNSON:

Thank you Your Honour.

25HIS HONOUR:

And I should explain the reasons why.

26

I suppose I

should give a ruling to the effect.

27(RULING FOLLOWS) 28

1.MJ:ASC 02/12/08 2Cressy

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79

DISCUSSION

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 1.MJ:DB 02/12/08 2Cressy

FTR:24

80

RULING

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 1.MJ:DB 02/12/08 2Cressy

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81

RULING

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 1.MJ:DB 02/12/08 2Cressy

FTR:24

82

RULING

1 2 3 4 5 6 7 8

1.MJ:DB 02/12/08 2Cressy

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83

RULING

1MR DEVRIES:

If it please Your Honour.

2HIS HONOUR:

Now, having reached that stage, I think Mr Johnson

3

has a preliminary application set out in his written

4

submissions, which I read over lunch.

5MR JOHNSON:

Thank you, Your Honour.

I think I can condense

6

these down into five basic procedural points.

Firstly,

7

Your Honour, I submit with as much respect as I can

8

muster, that it was a little bit naughty to represent

9

that this matter would be dealt with in a trial of two

10

days.

Of course the plaintiff and her legal

11

representatives had no knowledge of the new proceedings

12

that were served on me only a matter of weeks ago which

13

have the same subject matter and I believe need to be

14

consolidated in and jointly

15

heard - - -

16HIS HONOUR:

Well what are those other proceedings?

17MR JOHNSON:

That is an application by my mortgagee, Trust

18

Company Fiduciary Services Limited, which holds the

19

mortgage over two of my properties, the two at Point

20

Cook.

21HIS HONOUR:

Which ones are those?

22MR JOHNSON:

2 Dorrington Street and 7 Inverloch Drive.

23HIS HONOUR:

What was the first one?

24MR JOHNSON:

2 Dorrington Street, Point Cook.

25HIS HONOUR:

Dorrington Street.

26MR JOHNSON:

And 7 Inverloch Drive.

27

They're really one and the

same property.

28HIS HONOUR:

Yes, they connect.

29MR JOHNSON:

Yes, continuously fenced but two titles.

One's a

30

house, the other is a block of land.

31

difficulty I have in dealing with those proceedings is

1.MJ:DB 02/12/08 2Cressy

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84

You see the

DISCUSSION

1

those properties are subject to interlocutory orders made

2

by Justice Cavanough and Justice Hansen in the third and

3

fourth practice court hearings in these proceedings.

4

orders that

5

Mr Justice Cavanough made basically evicted me from the

6

property.

7

His Honour's jurisdiction, if only because, as he said at

8

the beginning of the hearing on the first day, that under

9

the court's rules or procedures, not that I've been able

Purported – now I believe they were outside

10

to track down written evidence of this, that practice

11

court hearings are restricted to two hours total.

12

Mr Cavanough's - - -

13HIS HONOUR:

Well let's just stick to the point.

14MR JOHNSON:

Thank you, Your Honour.

15

The

That's

I believe those orders

were - - -

16HIS HONOUR:

These are orders he made, so far as I could see,

17

giving Perpetual Trustees possession of the Queen Street

18

property - - -

19MR JOHNSON: 20

They were

orders - - -

21HIS HONOUR: 22

No, no, I'm sorry, Your Honour.

And giving the plaintiff vacant possession of

Dorrington Place.

23MR JOHNSON:

Yes, we have this musical chairs sort of process

24

that's gone on, Your Honour.

I tried to liquidate my

25

properties about 12 months ago, not being able to service

26

them.

27

under contract, unconditional contracts, top of the

28

market before the interest rake height and the

29

10 per cent market slump and well before the global

30

financial crisis.

31

properties sold fell on deaf ears.

And my timing was immaculate, I got them sold

1.MJ:DB 02/12/08 2Cressy

FTR:24

My attempts to negotiate to get those

85

I was thoroughly DISCUSSION

1

resisted, the opportunities were lost.

2

opportunity wiped $320,000 two-thirds of my net worth

3

off.

4HIS HONOUR: 5

Well I follow that.

And you've got a

counterclaim - - -

6MR JOHNSON:

Yes.

7HIS HONOUR:

- - - for damages.

8

That loss of

But can I ask you

this - - -

9MR JOHNSON: 10HIS HONOUR:

Thank you, Your Honour. - - - Mr Johnson, what is the nature of the

11

application by the trustee company against you in the

12

other proceeding?

13MR JOHNSON:

They are seeking orders that I hand over to them

14

vacant possession.

15

restrained, I believe, by Justice Cavanough's orders from

16

taking any step in those proceedings at the present time.

17HIS HONOUR: 18

I don't understand that.

I am

You're entitled to

defend them.

19MR JOHNSON: 20

I can dispossess myself.

No, no, if I may read – I've actually quoted in my

submission this morning - - -

21HIS HONOUR:

That doesn't seem to me to be a basis in any event

22

to consolidate the proceedings.

23

status of the other proceedings are, whether they're

24

ready to try or not.

25

argument to get on with these proceedings.

26MR JOHNSON: 27

It would seem to me rather a good

They're both at the same proceedings – at the same

stage, Your Honour.

28HIS HONOUR:

But - - -

29MR JOHNSON:

They're short and sweet.

30

I don't know what the

I've got nothing but

admissions - - -

31HIS HONOUR:

Why haven't you applied before today to

1.MJ:DB 02/12/08 2Cressy

FTR:24

86

DISCUSSION

1

consolidate them then?

2MR JOHNSON:

I'm sorry, Your Honour.

3HIS HONOUR:

Why have you not applied prior to - - -

4MR JOHNSON:

I did as soon as I filed my appearance.

Fifteen

5

days ago I discussed it with the Prothonotary's Office.

6

I was made aware that I could apply for a waiver of court

7

fees and that waiver was given to me - - -

8HIS HONOUR: 9

But what's the common issue?

The common issue in

this case is, as I understand it, you own – or are or

10

were the registered proprietor of six

11

properties - - -

12MR JOHNSON:

Correct, Your Honour.

13HIS HONOUR:

The plaintiff is seeking an adjustment of your

14

interest in her favour.

Now that's the heart of the

15

Part 9 application, you oppose it.

16

what you've told me, is a mortgagee seeking possession

17

because of a default in a mortgage.

The other case, from

18MR JOHNSON:

Correct, Your Honour, but - - -

19HIS HONOUR:

What's the necessity to combine the two

20

proceedings?

21MR JOHNSON:

There seems to be a lot of differences.

Your Honour, there's no difference because I have

22

also twice sought, before Master Evans and also on 7 May

23

this year in the practice court before Mr Justice Smith,

24

for orders that those properties be given up to the first

25

registered mortgagee for sale.

26

on 20 June gave Ms Cressy occupancy rights.

Now, Mr Justice Cavanough

27HIS HONOUR:

Yes.

28MR JOHNSON:

Now, I submit that those were ultra vires.

29

They

evicted me from the property - - -

30HIS HONOUR:

Well they're orders that - - -

31MR JOHNSON:

And they gave me - - -

1.MJ:DB 02/12/08 2Cressy

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87

DISCUSSION

1HIS HONOUR:

Just a moment.

They're orders that stand but they

2

would only stand to the completion of this trial.

3

you better off getting this trial completed?

4

then she loses them, otherwise if you don't win, that

5

clarifies the position.

6MR JOHNSON:

Aren't

If you win,

Your Honour, if this trial is to continue one of

7

my suggestions is to bring my mortgagee in as a party to

8

these proceedings and that can be readily done.

9

need documents that my mortgagee has that Ms Cressy has

10

Indeed I

dispossessed me of.

11HIS HONOUR:

Well you can subpoena the mortgagee.

12MR JOHNSON:

Your Honour, can I - may I also refer you to the

13

orders that Justice Hansen made on 14 July?

14HIS HONOUR:

Yes.

15MR JOHNSON:

I hope you have a copy available.

16HIS HONOUR:

16 July he - - -

17MR JOHNSON:

The hearing - - -

18HIS HONOUR:

The defendant give possession to the plaintiff of

19

Dorrington Street and Inverloch Drive - - -

20MR JOHNSON:

Forthwith, Your Honour.

21HIS HONOUR:

Those properties to be sold and the balance paid

22

into court.

23MR JOHNSON: 24

administration like a mortgagee.

25HIS HONOUR: 26

Yes, with - with Ms Cressy given powers of

Now what's happened in relation to the sale of

these properties?

27MR JOHNSON:

Ms Cressy has breached her obligations to

28

administer the sale of those properties.

29

totally unnecessary because there were good existent

30

contracts on foot at 11 January 08 prices for the sale of

31

both properties and I don't know why

1.MJ:DB 02/12/08 2Cressy

FTR:24

88

The orders were

DISCUSSION

1

Mr Justice Hansen was led into making those orders giving

2

not the registered proprietor - no the first registered

3

mortgagee, not the bona fide purchaser for value who had

4

a registered and valid caveat on the title, but the

5

caveat holder under an untested and I submit to be

6

established as - - -

7HIS HONOUR:

Well it's to be tested now.

8MR JOHNSON:

(Indistinct) control.

9HIS HONOUR:

You want to test it now.

It seems to me

10

everything you're putting to me bespeaks urgency on your

11

behalf to get this case heard and determined.

12MR JOHNSON:

There's - there's not so much urgency on me now

13

Your Honour because those properties the outstanding

14

indebtedness exceeds the market value.

15

counterclaim which I filed but not served in those

16

proceedings because I'd be seeking orders from Your

17

Honour to allow me to do that so that I'm not breaking

18

the orders made by Justice Cavanough.

19HIS HONOUR:

My defence and

Well you're not breaking any - I can't see how you

20

could break any orders by filing a defence and

21

counterclaim - - -

22MR JOHNSON:

You would think not but it lies in the wording of

23

those orders Your Honour.

I'm prohibited from taking any

24

active step towards the first registered mortgagee

25

exercising its securities over those properties.

26HIS HONOUR:

What does it say?

27MR JOHNSON:

It's quite extraordinary, Your Honour.

28HIS HONOUR:

You're entitled to - that would not stop you

29

defending a proceeding.

What's the order?

16 July - - -

30MR JOHNSON:

(Indistinct) common sense Your Honour - - -

31HIS HONOUR:

Just a moment.

1.MJ:DB 02/12/08 2Cressy

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89

DISCUSSION

1MR JOHNSON:

(Indistinct) the wording of the orders.

2HIS HONOUR:

It will be in one of these court files.

3

The

defendant give the plaintiff possession.

4MR JOHNSON:

And in any case there's the orders of - - -

5HIS HONOUR:

The defendant give possession - - -

6MR JOHNSON:

Now the written orders are different to the orders

7

that Mr Cavanough read out in court that - - -

8HIS HONOUR: 9

This is Justice Hansen you've been referring to.

Justice Hansen's report - - -

10MR JOHNSON:

No, no, no.

11HIS HONOUR:

Judgment does not restrain you to do anything.

12MR JOHNSON:

Your Honour, it's Order 7 in the undated printed

13

orders Mr Justice Cavanough made at a date between - - -

14HIS HONOUR:

Just a moment.

15MR JOHNSON:

- - - 20 June 2008 and 21 July 2008

16

(indistinct) - - -

17HIS HONOUR:

Just a moment.

18MR JOHNSON:

Point 7, Your Honour.

19HIS HONOUR:

Sorry?

20MR JOHNSON:

Point 7 Mr Justice Cavanough.

21HIS HONOUR:

Yes, I've got to find the orders I'm sorry.

22

court files are not easy to find their way around.

23MR JOHNSON: 24

Yes, they're voluminous, Your Honour.

I have it

ready to read out, Your Honour.

25HIS HONOUR: 26

These

Just let me find it.

What was the date of the

order?

27MR JOHNSON:

They're dated at the top as 20 June 2008 which was

28

the hearing day, but I know for a fact that they weren't

29

signed prior to 26 June and they may be signed as late as

30

21 July.

31HIS HONOUR:

You say Point 7?

1.MJ:DB 02/12/08 2Cressy

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90

DISCUSSION

1MR JOHNSON:

Yes, Your Honour.

2HIS HONOUR:

Was restrained from taking active steps to

3

encourage and (indistinct) mortgagee - - -

4HIS HONOUR:

"From taking any active step, dot, dot, dot."

So,

5

"Any active step to dot, dot, dot, cause the mortgagee of

6

the Point Cook property", which I think for these

7

purposes is only 2 Dorrington Street, "dot, dot, dot, to

8

enter into possession of that property".

9

Now if I file a defence which admits 99 per cent without

10

exception of the mortgagor's statement of claim, aren't I

11

taking a step that - - -

12HIS HONOUR:

No.

13MR JOHNSON:

I'm not.

14HIS HONOUR:

No, you're not.

15MR JOHNSON:

Thank you Your Honour.

16

No, you're not.

Then I shall forthwith

file - - -

17HIS HONOUR:

You'd better file a defence.

18MR JOHNSON:

Thank you Your Honour.

19HIS HONOUR:

Now it seems to me everything you've said to me

20

show that this case needs to be resolved quickly without

21

delay.

22

had a relationship over less than a decade.

23

that be disposed of in two days?

I see no - it's a fight between two people who

24MR JOHNSON:

Half a decade Your Honour.

25HIS HONOUR:

Half - yes.

26

28

Why can't that be done in two days?

You're an intelligent man.

27MR JOHNSON:

Why can't

Stay relevant - - -

Your Honour, the reasons that are summarised in

the submission I put forward this morning - - -

29HIS HONOUR:

I couldn't find much in there that really did

30

other than show to me reasons why this case ought to be

31

erred and determined quickly in the interests of all the

1.MJ:DB 02/12/08 2Cressy

FTR:24

91

DISCUSSION

1

parties.

2

what you want to do with your properties.

3

is kept waiting on her claim.

4

counterclaim are being kept in a proceeding.

5MR JOHNSON:

Otherwise it seems to me you're tied up doing The plaintiff

The defendants by way of

I'm concerned, not excessively, perhaps I can

6

think about but I really have - I have issued subpoenas -

7

28 subpoenas.

8

48 hours before they expired.

9HIS HONOUR:

Only six of those were served within the

The subpoenas have to relate to relevant issues in

10

the case.

11

matters, I'll apply for costs against you.

12MR JOHNSON: 13

You bring people to court on irrelevant

I have got no concerns about that Your

Honour - - -

14HIS HONOUR:

You'd better be careful.

15MR JOHNSON:

- - - relevant matters Your Honour.

16HIS HONOUR:

I must say - Mr Johnson, nothing you've advanced

17

to me justifies me making an order to adjourn this

18

proceeding so that it seems to me appropriate that we

19

proceed.

20

tipstaff and that is as I understand it, you're not

21

getting a transcript at the moment or you - - -

22MR JOHNSON: 23

Now there's one other matter raised by my

I've got no funds Your Honour.

I've already had a

waiver - - -

24HIS HONOUR:

Now I think I have power to direct that you be

25

provided with a transcript at the cost of the court.

26

if that is right, then I give that direction.

And

27MR JOHNSON:

Thank you Your Honour.

28HIS HONOUR:

Because otherwise you will be at a disadvantage to

29

the other parties.

30MR JOHNSON:

Your Honour, sorry I - - -

31HIS HONOUR:

Otherwise you will be at a disadvantage in

1.MJ:DB 02/12/08 2Cressy

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92

DISCUSSION

1

comparison to the other parties and I'm concerned you not

2

be.

3

the case.

All right, we'll hear from Mr Devries, he can open

4MR JOHNSON:

Sir, Your Honour, can I please - just a couple of

5

points.

6

haven't been able to find and summons and even a couple

7

of witnesses who were served didn't appear this morning

8

in (indistinct) summons.

9HIS HONOUR: 10MR JOHNSON:

I believe I am put at a disadvantage because I

Yes. And they are witnesses relevant to the nature of

11

the relations between Ms Cressy and I and also with

12

respect to my properties.

13

and her non-relationship - - -

14HIS HONOUR: 15

My relation with my properties

If you're unable to obtain witnesses at an

appropriate time, we'll deal with it then.

16MR JOHNSON:

All right.

May I also flag that in the other

17

proceeding 9623 as well as counterclaiming against the

18

plaintiff in those proceedings, one mortgagee, I have 13

19

defendants by counterclaim.

20HIS HONOUR:

Thank you.

21MR JOHNSON:

Including some of the parties that have spoken in

22

court today.

23HIS HONOUR:

I follow.

Thanks.

24MR JOHNSON:

Thank you sir.

25HIS HONOUR:

Thanks Mr Johnson.

26MR DEVRIES:

I've got to say sir, I am a little bit concerned

Mr Devries.

27

about what was just stated to Your Honour by Mr Johnson

28

and that is that it appears that whatever may be

29

litigated before Your Honour with respect, he intends to

30

re-litigate it all in the other proceeding.

31

would only add to costs.

1.MJ:DB 02/12/08 2Cressy

FTR:24

93

And that

DISCUSSION

1HIS HONOUR:

What do you want to do - what do you say we should

2

do?

Do you say the two proceedings are relevant and I

3

should adjourn this back to the listing master?

4MR DEVRIES: 5

Your Honour, I don't - sorry, Your Honour, I

haven't seen any documents in relation to - - -

6HIS HONOUR:

Mr Devries, we've used half a day of a two day

7

case.

There are other matters urgently waiting this

8

court's attention.

9

assurance it'll go for two days.

10

This case has been sat down on the Do you wish it to

proceed or not.

11MR DEVRIES:

Your Honour, I would like five minutes to look at

12

the document in the other matter just to find out what

13

the other matter is.

14

for me - - -

15HIS HONOUR: 16

All right.

It would not be fair to my client

I'll stand it down for five minutes.

But if I - - -

17MR DEVRIES:

I presume Mr Johnson's got a copy of the pleadings

18

in that matter.

19

standing it down Your Honour.

20MR JOHNSON:

If he hasn't then there's no point just

Your Honour, I have a copy with Mr Devries' name

21

on it who's I believe the seventh defendant by

22

counterclaim - instructed by the fifth defendant by

23

counterclaim Your Honour.

24MR DEVRIES:

This is extraordinary Your Honour.

25MR JOHNSON:

It's Callanan's case revisited Your Honour.

26MR DEVRIES:

I don't know what my position is Your Honour.

I

27

appear to be a party to proceedings but that may or may

28

not be related to this.

29

accepting service by way of - - -

I might say Your Honour, I'm not

30HIS HONOUR:

No, I understand that.

31MR JOHNSON:

So do I Your Honour.

1.MJ:DB 02/12/08 2Cressy

FTR:24

94

DISCUSSION

1HIS HONOUR: 2

Do you wish to have a look at whatever's being put

before you Mr Devries?

3MR DEVRIES:

That's going to take a bit more than five minutes.

4MR JOHNSON:

Should we adjourn til the morning Your Honour?

5MR DEVRIES:

If I can have five minutes Your Honour, that's all

6

I'll need.

7HIS HONOUR:

I'll quickly scan it - - -

I don't want to put you under too much pressure.

8

Ms Sofroniou, you've been sitting there suffering in

9

silence.

10MS SOFRONIOU:

Thank you Your Honour.

It's rare for me.

The

11

second and third defendants by counterclaim was to be

12

subject to what's just fallen to my learned friend that

13

we would object to any adjournment - - -

14HIS HONOUR:

Yes, I understand.

15MS SOFRONIOU:

- - - upon the basis that even if there was some

16

correlation between the matters, that would be a matter

17

for the second court if there were a res judicata or an

18

issue estoppel arising out of this one.

19HIS HONOUR:

Yes, I understand that.

20MS SOFRONIOU:

But of course having said that, the second and

21

third defendants by counterclaim or as it were a

22

collateral claim to all of this, if my friend actually

23

finds that he's listed as a party, then the only concern

24

and I'm certainly not in a position to put it any higher

25

than that is that such a strategy might, of itself, force

26

this matter to go off - - -

27HIS HONOUR:

No, I follow.

28MS SOFRONIOU:

- - - in which case the only thing we can do is

29

ask for some costs compensation but that's not of much

30

help to the court.

31HIS HONOUR:

No, I think the best thing - I think the best

1.MJ:DB 02/12/08 2Cressy

FTR:24

95

DISCUSSION

1

thing for me to do is I will stand the matter down.

2

don't want to put undue pressure on the parties.

3MS SOFRONIOU:

I

4HIS HONOUR:

Yes. I am concerned this matter be disposed of rather

5

than be left in the list.

It's not always easy to get

6

Supreme Court judge available.

7

happenstance that I'm available today and I may not

8

remain available for long in this case.

9

thing is I will stand the matter down.

It's only been

I think the best I'll give you to

10

three o'clock, I think it's more realistic, and if you

11

need longer than that Mr Devries, Ms Sofroniou, let me

12

know.

13MR DEVRIES:

Your Honour, my inclination at present is to have

14

this matter proceed, but I'd also request to know who the

15

six witnesses are that are going to be called by

16

Mr Johnson.

17

matter is going to take.

That will give us some idea of how long this I mean - - -

18HIS HONOUR:

How many witnesses do you have?

19MR DEVRIES:

I just have the one witness, Your Honour.

20MR SOFRONIOU:

I have one.

21HIS HONOUR:

Yes.

Mr Johnson, how many witnesses do you have?

22MR JOHNSON:

As I said there are 28 by subpoena.

There are two

23

not by subpoena.

My difficulty is that not all of the

24

persons subpoenaed have been served within the 48 hour

25

window I was given.

26

wasn't - - -

As late as 15 days ago I

27HIS HONOUR:

This case was set down some time ago.

28MR JOHNSON:

Your Honour, I did not get any wind of that until

29

18 September and then even as late as 15 days ago.

30

understand that there's been notice of trial set - notice

31

I

of trial filed by the plaintiff and this was set down

1.MJ:DB 02/12/08 2Cressy

FTR:24

96

DISCUSSION

1

conditional on that notice being filed by 15 September.

2

The registry I checked last on the 21st of this month no

3

record of that - - -

4HIS HONOUR:

All right well I'll stand the matter down.

I

5

don't think it's worthwhile trying to elucidate that

6

issue any longer.

7

do you want Mr Devries?

I'll stand the matter down.

8MR DEVRIES:

About five minutes, Your Honour.

9HIS HONOUR:

I'll give you five minutes.

10

If you need longer

you let Mr Richards now.

11MR DEVRIES: 12

How long

I will Your Honour, thank you.

(Short adjournment.)

13HIS HONOUR:

Mr Devries.

14MR DEVRIES:

Your Honour I think in the interest of my client

15

we really ought to proceed.

16

whether my client may feel that I have a conflict in

17

looking after my own interests and looking after hers.

18

did say to Mr Johnson very early on in these proceedings

19

that I would not withdraw from these proceedings as other

20

lawyers have (indistinct) me, just because he had made

21

accusations because that seemed to be a tactic he was

22

using to try and prevent my client from having legal

23

representation.

24

makes some very serious accusations against me

25

personally, against my instructors personally, against my

26

client personally and against my learned friends'

27

clients.

28

start the matter Your Honour and then take advice and

29

give consideration however the - after Your Honour rises

30

for the day.

31

time rather than - - -

1.MJ:DB 02/12/08 2Cressy

The only fear I have is

I

It's a very lengthy document and it

I think the best thing would be to actually

I think that might be the best use of the

FTR:24

97

DISCUSSION

1HIS HONOUR:

Are you content with that course?

2MR DEVRIES:

I am.

I haven't given my client any advice on the

3

matter and I'm not sure that I can give her advice on the

4

matter because if I am conflicted then I can't give her

5

advice.

6

whilst they're serious in some ways quite laughable if

7

they weren't so serious, weren't designed to put a spoke

8

in my past case.

9HIS HONOUR:

And neither can my instructor.

The accusations

Well I've actually not heard too much about it but

10

if you have a concern about your position I don't wish to

11

put pressure on you to go on, notwithstanding the loss of

12

the day, if you need to seek advice.

13MR DEVRIES:

But if - - -

I'm instructed - - -

14MS SOFRONIOU:

I beg your pardon.

I'm sorry, I apologise.

15HIS HONOUR:

If you do feel you can go on, then we'll commence.

16MR DEVRIES:

I think I'd like to go on Your Honour.

17HIS HONOUR:

Right, well we'll commence with the trial.

18MR DEVRIES:

Your Honour before we do that, can I seek

19

clarification of another matter.

20

4 September, Master Evans adjourned over to Your Honour

21

an application for summons by Mr Johnson and that summons

22

effectively seeks certain reliefs in respect to the

23

properties.

24

that summons?

25HIS HONOUR: 26

On 22 September - sorry

Has Your Honour had the opportunity to see

I've seen the summons, yes.

What's the date of it

again?

27MR DEVRIES:

The summons was dated 19 August 2008.

28HIS HONOUR:

Yes.

He seeks an order against himself too.

29

first three are orders against himself.

30

seen that.

31MR DEVRIES:

The

Yes see I've

In a sense Your Honour - - -

1.MJ:DB 02/12/08 2Cressy

FTR:24

98

DISCUSSION

1HIS HONOUR: 2

as part of the counterclaim really.

3MR DEVRIES: 4

That would seem to be - that could be dealt with

Except for the fact that it is directed to a

number of parties who are not parties here today.

5HIS HONOUR:

Well it can only be - I can only make rules so far

6

as it's not so directed, I would have thought.

7

on Mr Johnson (indistinct) proceeding, parties that are

8

relevant to that summons.

9

make the orders.

10MR DEVRIES:

It relies

If they're not here I can't

If Your Honour pleases.

And I was going to submit

11

Your Honour that in respect to some of the properties,

12

the mortgagees to my, on my instructions, have already

13

take possession and in respect to the others it probably

14

(indistinct) these proceedings.

15

claim made by the plaintiff under the - pursuant to the

16

provisions of Part 9 of the Property Law Act (1958) and

17

what she seeks is a division of these - of the parties or

18

either in pursuant to the provisions, pursuant to those

19

provisions and it's her case and it'll be her evidence

20

that the parties commenced living together as in a

21

domestic relationship as that term is defined within

22

s.275 of the Act from September 1998 until the month of

23

May 2007.

24

Your Honour this is a

An eight and a half year relationship.

Her evidence

25

will be that there is one child of that relationship,

26

first name Illyana and that she is a child of both of the

27

parties.

28

9 June 2000.

29

resided with the parties during the course of their

30

domestic relationship namely Treece, born

31

21 April 1995 and Skye, born 12 July 1998.

1.MJ:DB 02/12/08 2Cressy

And she was born on My client also has two other children who

FTR:24

99

DISCUSSION

1HIS HONOUR:

How do you spell Treece?

2MR DEVRIES:

T-r-e-e-c-e.

Both of them are male children.

3

Neither of those children, Treece or Skye, are natural

4

children of the defendant.

5

who my client will say is the father of both children and

6

is known by both children to be their father.

7

other party to the Family Law proceedings that Your

8

Honour has heard about where a decision has been

9

reserved.

There is a gentleman Mr Laity

He is the

Mr Johnson takes issue with Mr Laity being the

10

father of both of those children but that bears no

11

relevance to these proceedings.

12HIS HONOUR:

How do you spell Laity?

13MR DEVRIES:

L-a-i-t-y.

14

I'm having a mental block as to his

first name.

15HIS HONOUR:

It doesn't matter.

16MR DEVRIES:

I think it's Matthew.

My client's evidence will

17

be that the parties commenced living together at 12

18

Illoura Avenue, Grovedale which were premises then rented

19

by her.

20

Gheringhap Street, Geelong.

21

They then moved to other rented premises in 2001 in South

22

Yarra.

23

together at 2 Dorrington Street, Point Cook which is one

24

of the properties that Your Honour has heard about.

25

then for a period of time from September 2006 until

26

May 2007 they lived together at 166 Queen Street, Altona

27

which is another property that's been the subject of

28

these proceedings.

29

The whole of the domestic relationship was lived in

30

Victoria.

31

They then moved to other rented premises in That was in 1999 until 2001.

And from 2003 to September 2006 they resided

So that covers s.280(b)(1) of the Act.

And

The

relationship exceeded two years so that's gets my client

1.MJ:DB 02/12/08 2Cressy

FTR:24

100

DISCUSSION

1

past s.281 and the application was made within two years

2

of the termination or cessation of the relationship so

3

that covers the provisions of s.282.

4

respect, Your Honour, the jurisdictional provisions that

5

gets my client before this court.

6

few moments her evidence as to the contributions made by

7

her but the pool of the parties that's available to be

8

distributed are the equities that remained in a number of

9

properties, Your Honour, and they're conveniently listed

10

I'll spell out in a

in Mr Johnson's summons of 19 August.

11HIS HONOUR: 12

And they're, with

Well your statement of claim refers to five

properties I think?

13MR DEVRIES:

Sorry, Your Honour?

14HIS HONOUR:

The statement of claim from my count refers to

15

five properties, is that right?

16MR DEVRIES:

It does, Your Honour.

Until Mr Johnson filed this

17

summons my client was unaware of his interest in these

18

other - in at least two of these properties.

19HIS HONOUR:

Well you haven't amended your claim.

20MR DEVRIES:

I haven't Your Honour.

21HIS HONOUR:

The claim concerns the five properties as spelt

22

out in your statement of claim you make a claim under the

23

Property Law Act or alternatively by rights under a

24

constructive trust.

25MR DEVRIES:

That's correct, Your Honour.

Sorry, I'm reminded

26

by my instructor just to compound that problem that there

27

is a further property which Mr Johnson has interest in in

28

Endeavour Street, Torquay.

29HIS HONOUR:

Well I can only go on the pleadings.

At the

30

moment the claim you've asserted concerns a Dorrington

31

Street property, the Hawks Court - I can't read my own

1.MJ:DB 02/12/08 2Cressy

FTR:24

101

DISCUSSION

1

writing, Hawkshurst Court property, 12 Lisa Court,

2

7 Inverloch Drive and 166 Queen Street.

3

five properties in your claim.

4

client is going to assert a claim for an adjustment of

5

the interest in relation to any of the other properties

6

that will need to be spelled out by the appropriate

7

amendment.

8MR DEVRIES: 9

Yes.

Now they're the

If you wish to - if your

With respect, Your Honour, there are two

ways my client can go about it.

One is to seek an

10

adjustment in those additional properties or to seek an

11

adjustment in the properties that she's listed in the

12

claim - - -

13HIS HONOUR:

Taking into account the other - - -

14MR DEVRIES:

Taking into account the others.

15HIS HONOUR:

I follow.

16

What are the - are there some other

properties than those five?

17MR DEVRIES:

Sorry I didn't hear what Your Honour just said.

18HIS HONOUR:

I think I cut you off.

19

You said there was some -

the list of properties are those in the summons are they?

20MR DEVRIES:

Yes.

21HIS HONOUR:

So that's a comprehensive list of the properties

22

owned by Mr Johnson?

23MR JOHNSON:

Save that it - sorry I've lost my place.

Save for

24

there's an additional property I'm instructed at

25

Endeavour Road - sorry, no it's listed.

26

7A Endeavour Drive, Torquay.

Yes,

27HIS HONOUR:

Yes.

28MR JOHNSON:

They're the - - -

29HIS HONOUR:

Apart from the five in the statement of claim

30

there seem to be two others in this summons.

31

Endeavour Drive and the Gibson Street, Caulfield East.

1.MJ:DB 02/12/08 2Cressy

FTR:24

102

That's the

DISCUSSION

1MR DEVRIES:

That's correct, Your Honour.

2HIS HONOUR:

They're the two other properties that seem to be

3

referred to in the summons that aren't still found in the

4

statement of claim so far as I could see.

5MR DEVRIES:

Yes.

6HIS HONOUR:

But your client doesn't make any direct claim in

7

relation to them.

8MR DEVRIES: 9

With respect Your Honour that's correct.

Not at this stage in respect to the division of

the interest.

I will need to get some instructions from

10

her in respect to whether she wishes me to amend the

11

statement of claim.

As I said this came - - -

12HIS HONOUR:

Yes.

13MR DEVRIES:

I know it's very late in the piece Your Honour but

14

this came up very late in receiving the summons and to

15

some extent there's been a little bit of sitting back

16

waiting to see what happened to the properties because

17

there is a concern on her part and Mr Johnson keeps

18

reminding us of it that at the end of the day there might

19

not be anything in some of those properties.

20MR JOHNSON:

(Indistinct) Mr Devries.

21HIS HONOUR:

That's why I've been concerned about delaying this

22

matter but anyway we'll press on and see what happens

23

but - - -

24MR JOHNSON:

Your Honour, the damage is very much done.

25

question of who picks up the ticket for it.

26

delay has been fatal.

27HIS HONOUR:

All right.

It's a

The 12 month

Now Mr Devries is opening.

28

from you in due course.

29

are some seven properties that are irrelevant.

I'll hear

Anyway Mr Devries you say there

30MR DEVRIES:

Yes.

31HIS HONOUR:

In respect of five for which claims are made.

1.MJ:DB 02/12/08 2Cressy

FTR:24

103

DISCUSSION

1MR DEVRIES:

Now Your Honour I was going to go to the - sorry

2

Your Honour before I move off (indistinct) I should

3

advise Your Honour as to what it is believed is the

4

status of those properties.

5

that the mortgagee hasn't - sorry the relevant mortgagee

6

hasn't taken any action in respect to 10 Hawkhurst

7

Court - - -

8HIS HONOUR: 9

At this stage it's believed

Sorry the mortgagee has not taken action for the

Hawkhurst property?

10MR DEVRIES:

Hawkhurst Court property at Hoppers Crossing.

11

That's the first one in Mr Johnson's list.

12

Your Honour that this is against the background that once

13

these proceedings started Mr Johnson ceased making any

14

mortgage payments and Your Honour will have tendered to

15

Your Honour a letter written by Mr Johnson to one of the

16

mortgagees saying, "Whilst I have the ability to meet my

17

mortgage liabilities I'm not going to do so because I've

18

been advised if I don't do so effectively it will limit

19

the capacity of the plaintiff to recover".

20

come at a later stage to negative contributions that we

21

allege that Mr Johnson has made in respect to the

22

maintenance of these properties.

23HIS HONOUR: 24

I might say

That will

Well the mortgagee has not taken position the

Hawkeshurst Court property at Hoppers Crossing.

25MR DEVRIES:

Not yet anyway Your Honour.

26HIS HONOUR:

Yes, what else?

27MR DEVRIES:

There's a statutory notice that's been issued in

28

respect of 7A Endeavour Drive, Torquay.

29

and it's anticipated that the mortgagee which is the

30

Commonwealth Bank will move into possession of that

31

property.

1.MJ:DB 02/12/08 2Cressy

That's expired

It may well be, Your Honour, that there is a FTR:24

104

DISCUSSION

1

linkage between 7A Endeavour Drive, Torquay and 92 Gibson

2

Street, East Caulfield.

3

property is the Commonwealth Bank but it's believed that

4

no statutory notice is issued in respect to the Gibson

5

Street property yet.

And the mortgage of that

6HIS HONOUR:

Yes.

7MR DEVRIES:

The mortgagee is in possession of 2 Dorrington

8

Street, Point Cook and it is believed that 7 Inverloch

9

Drive, Point Cook has been sold.

Precise details of the

10

sale are not known to my client.

Again there were

11

subpoenas issued to the various mortgagees but some of

12

them are not returnable unfortunate for some time.

13

Queen Street, Altona, Your Honour, has been sold and the

14

mortgagee subject to orders of this court at an earlier

15

stage, will be paying the proceeds into court.

16HIS HONOUR:

It's after discharge of the mortgage, is it?

17MR DEVRIES:

After discharge of the mortgage.

166

And payment of

18

what appear to be some fairly considerable costs on the

19

part of the mortgagee.

20

the day, that's just about all of the proceeds that Your

21

Honour may be dealing with.

22

situation is with the Hawkeshurst, whether there's going

23

to be - - -

24HIS HONOUR: 25

And it may well be at the end of

We're not sure what the

What about Lisa Court, Hoppers Crossing, what's

happened to that?---

26MR DEVRIES:

That's been sold Your Honour sometime ago and I

27

don't believe there were any proceeds resulting from that

28

sale.

29HIS HONOUR: 30 31

So it's unlikely - it sounds from what you tell me

and I'll have to hear some evidence in relation to this, (indistinct) by way of residue on Queen Street?

1.MJ:DB 02/12/08 2Cressy

FTR:24

105

DISCUSSION

1MR DEVRIES:

The indication given Your Honour is that it'll be

2

about $48,000.

However it appears that the mortgagee is

3

claiming about $55,000 or that sort of order for costs

4

which may require an accounting at some stage to the

5

parties.

6

power or control of Mr Johnson are not known to my

7

client.

8

solicitors business.

9

honourable court that he was making about $360,000 per

The other assets that are in the possession,

But it is known that for a time, he conducted a He has previously advised this

10

annum from that business but his income from that

11

business ceased around about the time that these

12

proceedings commenced.

13

Now Your Honour, if I could turn now to what my client's

14

evidence is going to be with respect to her contributions

15

to the acquisition, maintenance and improvement of the

16

various properties.

17

Dorrington Street, Point.

18

The purchase of that property was completed in August

19

2002 and the purchase price was 89,950.

20

evidence will be that prior to the purchase of that

21

building it was - that property, sorry.

22

between the parties that my client who had more time

23

available during the day would look for appropriate

24

premises and she did that and put a lot of time, effort

25

and trouble into that.

26

client's evidence will be that she worked in a number of

27

jobs and her most recent and probably most remunerative

28

job was as a sex worker and Mr Johnson makes a big issue

29

of that, but it is a lawful occupation and it did provide

30

for the parties and I'll come to that in a moment.

31

Her task in respect to that property included obtaining

1.MJ:DB 02/12/08 2Cressy

FTR:24

And I'll deal first of all with 2

My client's

It was agreed

I might say Your Honour that my

106

DISCUSSION

1

the service of various tradesmen to modify and improve

2

the property, management of the tradesmen.

3

internal painting including painting of feature walls,

4

landscaping, mowing the lawns, general maintenance of the

5

property and with the assistance of her mother, rendering

6

brickwork, purchasing, installing curtains, internal

7

fittings and fixtures.

8

The deposit for the purchase of that property came from

9

income pooled - incoming resources pooled by the parties.

She did

10

In other words from joint resources and the balance of

11

the purchase price which was virtually the bulk of the

12

89,000 came from a mortgage given to the Trust Company

13

Fiduciary Services Ltd who I understand are the

14

plaintiffs in this other proceeding.

15

separation the defendant did make some payments on the

16

mortgage and then ceased to make payments in

17

circumstances I'll take Your Honour to shortly.

18

We now turn to 10 Hawkhurst Court, Hoppers Crossing.

19

with the previous property, the Dorrington Street

20

property, my client did the searching around for an

21

appropriate property, did the liaising with the agents,

22

did the inspections, selected in consultation with the

23

defendant the property and again she liaised and dealt

24

with tradespeople who quoted and undertook the

25

renovations, she managed the renovations.

26

was rented out.

27

She was involved in painting of the property, landscaping

28

the property and some renovations and repairs.

29

the other property, a small deposit from joint resources

30

and a mortgage which covered the bulk of the purchase

31

price from, in this case, AMP Bank.

1.MJ:DB 02/12/08 2Cressy

Following

As

The property

She dealt with the property managers.

FTR:24

107

As with

DISCUSSION

1HIS HONOUR:

What was the purchase price?

2MR DEVRIES:

I'm not - it was a house and land package which

3

was a little bit under $200,000 Your Honour.

12 Lisa

4

Court, Hoppers Crossing is the next one.

5

(indistinct) Your Honour.

6

completed about the same date as the other Hoppers

7

Crossing property, being February 2003.

8

client who took upon the joint (indistinct)

9

responsibility of searching out the property, finding the

I'm going to

That was the purchase that was

Again it was my

10

property, negotiating with the selling agency and she

11

readied the property for occupation for the property.

12

Lisa Court was roughly the same price as the other

13

Hoppers Crossing property, just under $200,000.

14

mortgaged to the AMP Bank for the bulk of the purchase

15

price and the deposit came from the pooling of the

16

parties' resources.

17

Turning now to 7 Inverloch Drive, Point Cook.

18

purchased in May - in or about May 2003.

19

searched out, did all the looking around for the property

20

and negotiations with the real estate agent to bring the

21

price down.

22

lawns, did general maintenance for the property and - if

23

I could just turn my back (indistinct).

24

vacant land Your Honour, purchased for approximately

25

$89,000 and that was sold at auction I'm instructed on 15

26

November and we're still trying to ascertain what it was

27

sold for

28

and - - Was that a mortgagee sale?

30MR DEVRIES:

Yes Your Honour.

Altona Your Honour.

1.MJ:DB 02/12/08 2Cressy

That was

Again my client

She landscaped the property, mowed the

29HIS HONOUR:

31

Again,

FTR:24

That was just

Now turning to 160 Queen Street,

That was purchased in or about June 108

DISCUSSION

1

2006 for $500,000.

Again my client located the property,

2

liaised with the estate agent, negotiated the estate

3

agent (indistinct) down from high 600,000 to the purchase

4

price of $500,000 and she paid half of the $50,000

5

deposit.

6

removing carpets, disposing of the carpets, liaising with

7

trades people, arranging for the polishing of the floors,

8

cleaning of the home including scrubbing the walls and

9

(indistinct) remove ingrained smoke stains and repairing

She did a lot of work on the property including

10

and repainting (indistinct) walls and feature walls,

11

arranging for the removal and replacing of light fittings

12

and power points, down lights, spot lights and she

13

removed - sorry, paid for the removal, replacement of an

14

installation of a kitchen of about $30,000.

15

of the purchase price came from a mortgage given to

16

Perpetual Trustee Victoria.

17

and that's the one where about $48,000 at least is

18

expected to be paid into court.

19HIS HONOUR: 20

The balance

That property has been sold

The mortgagee you say will claim the bulk if not

all of that?

21MR DEVRIES:

Yes.

It is a concern to my instructors and my

22

client that declaring something like $55,000 legal costs

23

for taking possession, but I think they were also

24

involved in some proceedings at some stage (indistinct)

25

proceedings.

26

Street, Caulfield was purchased on 22 June 2006.

27

- the purchase was fully funded by a mortgage and the

28

purchase of course took place before the parties - a year

29

before the parties separated.

Unit 2 - Unit 9 sorry Your Honour, 2 Gibson It was

What happened with that

30

property Your Honour is after separation my client had my

31

instructors - sorry (indistinct) my learned friend's

1.MJ:DB 02/12/08 2Cressy

FTR:24

109

DISCUSSION

1

client, lodge a caveat on the property and the defendant

2

requested the caveat be withdrawn to enable a sale that

3

he had notified them had taken place to proceed and be

4

completed.

5

Contrary to what was in his letter, there was no sale.

6

He refinanced the property to extract more equity from it

7

and it's believed that that may have been applied in some

8

form to 7A Endeavour Drive, Torquay.

9

the fact that 7A Endeavour Drive, Torquay was purchased

10

around about the time the parties separated, my client

11

has very little knowledge of the acquisition of that

12

property.

13

moment.

14

On 21 January this year, Mr Johnson wrote a letter to

15

challenge a mortgagee - mortgage and management stating -

16

who were the mortgagees of 166 Queens Street, Altona,

17

Victoria, and stated in part "While I have funds

18

available to me, outstanding mortgage payments, I've been

19

advised that the prudent course of action is to conserve

20

my cash and allow the mortgagee payments to capitalise

21

the mortgagee will agree to this.

22

this makes better use of the sale proceeds so that there

23

are smaller net sale proceeds from each sale which will

24

remain subject to the caveat claim."

25

by Mr Johnson.

26

And that, in part, goes to the negative contributions

27

that's alleged that Mr Johnson's made towards these

28

properties.

29

of me a few minutes ago that he says in that same letter,

30 31

Apart from that and

Would Your Honour just bare with me for one

The reason is that

And that's signed

It's apposite given what was thrust in front

"I note that the loan account is currently in arrears.

I

regret that this has become a necessity as the sale which

1.MJ:DB 02/12/08 2Cressy

FTR:24

110

DISCUSSION

1

I entered into - as has the sale which I entered into

2

with much reluctance, this is a recent result of my being

3

blackmailed by an ex-girlfriend who has come forward many

4

years after our relationship ended and filed a caveat

5

over six of my properties fraudulently claiming an

6

interest in the properties based on a falsely alleged

7

domestic relationship."

8

During the course of the - sorry, I mentioned that the -

9

there's a child born to the parties, Illyana.

It will be

10

my client's evidence that she was the principle - sorry,

11

she had the - made the principal contribution as parent

12

of Illyana and also for the other two children who were

13

part of the parties' household and that she was the

14

principal if not sole homemaker and therefore the

15

contributions of homemaker and parent were principally if

16

not solely made by her.

17

the following manner.

18

Early in the relationship she made - manufactured and

19

sold handmade jewellery at the SurfCo wholesale markets

20

in Geelong devoting all of her income from that pursuit

21

to the domestic relationship.

22

She also made contributions in

In between 1991 and 2001 she worked as a manager at a

23

gallery known as Artemis in Geelong, again devoting her

24

income to the relationship from that pursuit.

25

as a consultant at Le Reve, L-e R-e-v-e aromatherapy in

26

Melbourne between 2001 and 2003 devoting her income again

27

to the relationship.

28

assistant in the defendant's firm for a considerable

29

period of time effectively being paid less than the

30

appropriate rate and ploughing the remainder into the

31

defendant's law firm and made very significant

1.MJ:DB 02/12/08 2Cressy

FTR:24

She worked

She worked as a legal and clerical

111

DISCUSSION

1

contributions to his ability to earn income.

She also

2

worked for the large part of the relationship in the

3

adult services industry and I've mentioned that to Your

4

Honour and derived considerable income from that.

5

My client will give evidence that she is not able to

6

provide full specifics of her sex industry occupation

7

because the diaries she maintained she says were stolen

8

by the defendant as were all of her financial documents

9

and taxation documents and he's never made them available

10

to her.

She used her income, as I said, for the purpose

11

of the domestic relationship and in particular towards

12

purchasing food, going towards mortgage payments,

13

deposits on properties, paying for renovations and

14

improvements, household expenses, utilities, rates and

15

some of the expenses of the defendant's business.

16

also assisted the defendant in his business in attending

17

as his partner for lunches, hosting dinners for clients

18

and the like.

19

The defendant, Your Honour, also has three children by a

20

marriage that predated the domestic relationship.

21

children are David James Johnson, Dillon James Johnson

22

and Jessica James Johnson and they spent time with the

23

parties during the domestic relationship as the defendant

24

spent time with them.

25

access and my client assisted in the care and support of

26

those children when they stayed with the parties. Isn't it called access anymore?

28MR DEVRIES:

Time with, Your Honour.

with.

Those

The old phrase being, I think

27HIS HONOUR:

29

She

Communication and time

Communication being what used to be telephone access

30

or now electronic access I suppose and time with replaces

31

the old access.

1.MJ:DB 02/12/08 2Cressy

FTR:24

112

DISCUSSION

1HIS HONOUR:

Does custody still exist?

2MR DEVRIES:

No, that's live with.

It creates massive problems

3

in drawing court documents because the old terminology is

4

easier to use than the new terminology.

5

client will be giving considerable evidence about what

6

happened with respect to her occupancy at 166 Queen

7

Street, Altona and that led to the orders being made by

8

His Honour Justice Cavanough.

9

client was, by consent of the defendant, given, together

Your Honour, my

Save to summarise that my

10

with the children, the ability to reside at that place

11

until further notice.

12

Mr Johnson notwithstanding that placed the property on

13

the market and then gave undertakings that he wouldn't

14

continue to do that and you've heard the extract from the

15

challenger letter which followed that undertaking.

16

again more evidence of a negative contribution.

17

steps that he's taken he's effectively, on the evidence

18

of my client, reduced the equity in those various

19

properties.

20

I should advise Your Honour that Lisa Court which Your

21

Honour has made mention of was initially occupied by my

22

client's mother who paid market rental on the property

23

but notwithstanding that the defendant chose to have her

24

evicted from the home and she was then forced to be

25

supported by my client along with my client's sister at

26

my client's Altona residence.

27

the defendant's counterclaim but I'll address - if it's

28

convenient Your Honour I'll address that when you get to

29

the counterclaim.

Both the

My client is a party to

Obviously my learned friend represents

30

the other defendants by counterclaim to that

31

counterclaim.

1.MJ:DB 02/12/08 2Cressy

And

Now is it convenient Your Honour for me to

FTR:24

113

DISCUSSION

1

call - - -

2HIS HONOUR:

You won't be dividing your case though.

You'll be

3

calling all evidence relevant to the claim and the

4

counterclaim at one go won't you?

5MR DEVRIES:

I do believe so, Your Honour.

The counterclaim

6

suggests that my client along with her then lawyers

7

somehow conspired to illegally or unlawfully place a

8

caveat on the property.

9

not dividing my case.

There's a great overlap and I'm What I'm saying to Your Honour is

10

that I'll - basically what I'd be saying with respect are

11

more in the nature of addresses and it's not really

12

appropriate I think.

13HIS HONOUR:

No.

14MR DEVRIES:

Is it convenient to Your Honour if I call my

15

client now or - - -

16HIS HONOUR:

Certainly.

17MR DEVRIES:

Before I do that Your Honour given the number of

18

witnesses that Mr Johnson intends to call and we don't

19

know who they are so my instructor and I and the client

20

don't know who they are, I seek an order as to witnesses

21

at this stage, Your Honour.

22HIS HONOUR:

Yes, certainly.

You seek an order for witnesses

23

out of court other than the parties.

24

Mr Richards.

25

If you would please

(At this stage all witnesses were ordered out of court.)

26Thank you. 27
you prefer?---Thank you.

30MR DEVRIES: 31

Ms Cressy, you may be seated or stand whichever

Your full name is Pippin Patricia Cressy?

---That's correct.

1.MJ:DB 02/12/08 2Cressy

FTR:24

114

DISCUSSION

1And what is your address?---Currently it's 98A Railway Street 2

South, Altona.

3By occupation you're a sex worker is that correct?---Not any 4

more, no.

5Not any more. 6

in the banking sector.

7HIS HONOUR: 8

So what is your present occupation?---I'm still I'm - - -

Sorry?---Doing - sorry.

Banking, selling banking

products.

9MR DEVRIES:

Now I'm going to ask you to be impolite and look

10

towards His Honour or direct your voice over His Honour's

11

tipstaff's head?---Sure OK.

12And then we can all hear you and if you turn your shoulder to 13

me I won't be offended by that.

When did you first meet

14

Mr Johnson?---It was just before the Melbourne Cup in

15

1998.

16Where were you living when you met him?---Illoura Avenue in 17

Grovedale which is a suburb of Geelong.

18Was that a property owned by you or rented by you?---A rented 19

property.

20And when did you cease living in that property?---James and I 21

moved in together in 1999, we stayed in Geelong, that's

22

when we moved to Gheringhap Street.

23HIS HONOUR: 24

I'm sorry, did the defendant move in with you at

Allure Avenue?---Yes.

25When was that?---Approximately six weeks after we met. 26So that would be quite late 98 or early 99?---It would be 98. 27MR DEVRIES:

And when he moved in, who - sorry, once he moved

28

in, who resided at the property?---James, myself, and my

29

two young boys.

30Is he the father of either of your two young boys?---No, he is 31

not.

1.MJ:DB 02/12/08 2Cressy

FTR:24

115

DISCUSSION

1And are they Treece Cressy?---Correct. 2When was Treece born?---He was born on 21 April 1995. 3And the other one is Skye Cressy?---Yes, he is. 4Sorry?---Yes, he is. 5And when was he born?---He was born on 12 July 1998. 6Do you have any other children?---Yes, I do.

James and I have

7

a daughter together, Illyana Patricia Cressy, and her

8

birth date is 9 June 2000.

9And when - can you describe - sorry, can you tell the court the 10

nature of your relationship with Mr Johnson when he moved

11

in with you at 12 Allure Avenue, Grovedale?

12

---Well, initially we were boyfriend and girlfriend, he

13

left his wife soon after we started dating, we commenced

14

a domestic relationship from then on.

15

divorce her, he said that he would eventually do that,

16

but it was a money thing.

He didn't formally

17Did the domestic relationship commence before or after he moved 18

in, or at the time that he moved in?---Well, before he

19

moved in.

20And why do you say that?---Because although he wasn't living 21

there, he was there all the time, so - and doing things

22

for the family in a family sense.

23And when he commenced to live at 12 Allure Avenue, what were 24

you doing for a living?---I was working at the markets,

25

as is in my affidavit, making jewellery, handmade crafts

26

and the like, selling those at local markets.

27Your Honour, my client has just referred to an affidavit, what 28

she's referring to is not an affidavit, there is no

29

affidavit before the court, so if I can just correct

30

that, it's instructions to me that she's referring to.

31

Sorry, you were working in the market?

1.MJ:DB 02/12/08 2Cressy

FTR:24

116

DISCUSSION

1

---M'mm.

2Arts and crafts sort of thing?---Correct. 3How often did you attend the markets?---It would go from either 4

fortnightly to monthly, just depending on how much stuff

5

I'd made at the time, and also her two young children, so

6

there were time constraints.

7And how long prior to Mr Johnson moving in had you been doing 8

that sort of thing?---I'd been doing market work since I

9

was 11 years old, making arts and crafts, so quite a long

10

time.

11Was that your only source of income at the time that he moved 12

in?---Yes, it was.

I was also with some government

13

assistance at the time.

14Prior to him moving in, immediately prior to him moving in, was 15

your income from arts and crafts and government

16

assistance sufficient to maintain your household?

17

---Barely.

18After he moved in, did you continue to work in the arts and 19

crafts area?---Yes, I did.

20And for how much longer did you do that, roughly? 21

---Approximately a year and a half, perhaps.

22Did you take on any other employment or income receiving work 23

at that stage?---I did help him with some precedents that

24

he'd started doing when we moved to Gheringhap Street.

25Sorry, I'm just, at this stage, asking you to confine yourself 26

to the period you were at Allure Avenue?

27

---No, not while I was at Allure Avenue, no.

28You said - - 29HIS HONOUR:

What was Mr Johnson doing at that time, he's a

30

solicitor, was he?---He was working for Minter Ellison,

31

senior counsel, yes.

1.MJ:DB 02/12/08 2Cressy

FTR:24

117

DISCUSSION

1MR DEVRIES:

And did he put his income towards the household

2

while you were living at 12 Illoura Avenue?

3

---Not initially, no, no, he was still supporting his

4

estranged wife.

5Whilst you were at Illoura Avenue, did his children from his 6

marriage spend any time with you?---Yes, they did, but

7

not a lot at that early stage.

8Who look after them when they stayed with you?---We both did. 9And who did the housekeeping tasks at 12 Illoura Avenue? 10

---That was entirely up to me.

11And who looked after the externals of that house, the garden, 12

mowing, that sort of thing?---That was also me.

13You said that the property was rented, who was the - who took 14

out the lease, was it just you or was it you and somebody

15

else?---That was just me.

16Whilst you were at Illoura Avenue, did you receive any child 17

support or child maintenance from anyone in respect to

18

the two boys?---No, I did not.

19You moved to Gheringhap Street Geelong I think you said? 20

---Gheringhap.

21Sorry?---Gheringhap. 22You'll have to excuse my pronunciation, its not that good at 23

the best of times.

Was that a rented premises?

24

---Yes that was rented.

25Who took the lease out in that?---James did with that one. 26And how long did you live there with Mr Johnson?---I think we 27

were there just over a year before moving up to

28

Melbourne.

29And did you - apart from - sorry, did you continue when you 30

were there, your activities at the market?---No, I

31

started up a business which was an art gallery/fashion

1.MJ:DB 02/12/08 2Cressy

FTR:24

118

DISCUSSION

1

boutique called The Gallery of Artemis and started that

2

business up.

3

Water Authority, doing in-house legal for them so we were

4

just working down the road from each other.

James had moved to working for a Geelong

5And what did you do with your income from that gallery? 6

---Whatever didn't go back in to the business, went in to

7

the family.

8And who did the housekeeping whilst you were staying at those 9

premises?---That was all me.

10What about the externals again, the gardening, mowing, things 11

like that?---Again, me.

12Now, if we can go back to the Allure Avenue time, from the time 13

that he moved in until you moved to Gheringhap street,

14

were there any breaks in your relationship or any

15

separations or was that a continuous relationship?---We

16

had a rather intense fight when I was about four months

17

pregnant with my daughter Illyana.

18Was that whilst you were at Allure Avenue or Gheringhap 19

Street?---That's whiled we were at Allure Avenue and in -

20

that was in the interim period when we were actually

21

supposed to be moving in to Gheringhap Street.

22

have a really, really serious fight then, separated for

23

six to eight weeks and then we reunited.

We did

24When you were at Gheringhap Street, were there any breaks in 25

your relationship then?---We had a couple of fights, but

26

nothing of a long standing nature.

27Right, after Gheringhap, you moved to other premises.

Where

28

were those premises?---After Gheringhap Street we moved

29

up to Melbourne.

30

South Yarra.

We moved to 45 Nicholson Street in

31Were they - was that rented premises?---Again that was rented, 1.MJ:DB 02/12/08 2Cressy

FTR:24

119

DISCUSSION

1

yes.

James rented that.

2All right and how long were you there?---For 18 months to two 3

years.

4And who - sorry, I'll go back - when you were in Geelong, was 5

that when Illyana was born?---Yes Illyana was born in

6

Geelong.

7And did she live with you for a period of time at Gheringhap 8

Street?---Just as a - well yeah, maybe about three

9

months, yeah.

10HIS HONOUR: 11

She was born on 9 June 2000,

Is that right?

---Yes that's right.

12MR DEVRIES:

And who - between the time that she was born and

13

when you moved to South Yarra, who did the parenting of

14

Illyana?---I did.

15In the time that you were at Allure Avenue and at Gheringhap 16

Street, who parented your two boys?---I did.

17When you were at - in the South Yarra premises, who was the 18

housekeeper there?---I was.

19Who parented the children while you were there?---I did. 20Who did the external maintenance of the premises?---There were 21

no lawns to mow there but that was up to me.

22And what sources of income did you have when you were living in 23

the South Yarra premises?---I started the Le Reve

24

business consultancy for the Le Reve Aromatherapy company

25

because I could do that with the three children so I was

26

doing that and James started work for another company as

27

well as doing his Barwon Water work.

28And what did you do with the income from that business? 29

Sorry

- did you derive an income from that business?

30

---Yes.

Yes there was some income.

31

the household and to the family.

1.MJ:DB 02/12/08 2Cressy

FTR:24

120

That again went to

DISCUSSION

1Now when did you start working - well you've variously called 2

it adult services and sex industry worker, when did you

3

start that sort of work?---When - well basically as a

4

full time employment in 2006 after finishing my studies.

5And what about part time employment?---Earlier than that, 2002. 6And whilst you were part time employed in that industry, what 7

sort of income were you deriving from that work?---It's

8

quite varied because there were times when I studied that

9

I didn't really do much work at all.

10

But it could be

from $70,000-$100,000 per annum.

11Now 2 Dorrington Street, Point Cook - - 12HIS HONOUR: 13

That's part time?

Did you say that was part

time?---M'mm.

14MR DEVRIES:

So perhaps I withdraw the last question.

When you

15

moved to full time employment, what sort of income were

16

you deriving from your full time employment?

17

---Sorry, I'll take that back.

18

100,000 per annum if it was full time employment.

19

it's only part time - - -

That was more the 70,000So if

20So what was the part time?---Maybe 40. 21When did you start working - sorry, I'll withdraw that. 22

Dorrington Street, Point Cook?---M'mm.

23Who located that property?---We both did. 24

2

It's a Metricon

house.

25Sorry?---That was a Metricon house that was built for us. 26Yes?---We selected the land and selected the house and they 27

were packaged to go together.

28What did you do towards finding that property?---We went out to 29

Metricon, we drove around display homes, we chose the

30

particular house that we wanted which I think has a

31

Tuscan style to it which was what we were both into at

1.MJ:DB 02/12/08 2Cressy

FTR:24

121

DISCUSSION

1

the time.

We went out to the centre where you choose all

2

your colourings and your fittings and fixtures.

3

hours out there doing all that together.

4

the property was built, there were quite a few

5

adjustments that needed to be made.

6

been built properly.

7

not sure what to call him but the maintenance guy to fix

8

things up there.

We spent

And then after

Things that hadn't

So I dealt with the property, I'm

9Did you do any work on the property yourself?---Yes, I did. 10

There were lots of little things that weren't down like

11

towel rails for instance that needed to be installed and

12

lots of things like that throughout the whole house,

13

curtains, all that sort of stuff.

14What about painting?---Yes, painting feature walls. 15Who did that?---I did. 16And any work on brick work?---My mother and I rendered the 17

house, yes.

18And who - you said you installed the curtains, who purchased 19

the curtains?---I did.

20And what about the towel rails?---Yes, I purchased all of that. 21And were there any other fittings or fixtures that you either 22

purchased or installed or both?---Yes, lots of little

23

things all around the place.

24Can you give His Honour some general idea of what they were? 25

---The toilet roll holders for instance, you know stuff

26

like that wasn't supplied.

So I had to do that.

27What about the external part of the property? 28

Who looked after

the landscaping?---I did all of the landscaping.

29Sorry?---I did all of the landscaping.

There was a small

30

amount allocated when we first bought the property but it

31

was really just instant turf laid down so there was a lot

1.MJ:DB 02/12/08 2Cressy

FTR:24

122

DISCUSSION

1

to do.

2What sort of task did that involve?---I built rockery gardens, 3

planted vegetable gardens, put fruit trees in, bought the

4

letter box, all of that sort of work.

5

around the front yard.

I also did decking

6Anything else?---There's constant ongoing work with the gardens 7

so mowing, weeding, all that sort of stuff.

8Can you recall how much the property was purchased for? 9

---No, I can't.

It was a house and land packaged.

10

land would have been 80-90.

11

on top of that.

The

I think the house maybe 160

12And where did the money come from for the purchase of the land 13

first of all?---I think it was nearly 100 per cent

14

financed as a house and land package.

15

small amount of deposit towards that.

But we did pay a

16Where did the money for the deposit come from?---That was joint 17

funds.

18HIS HONOUR:

It was sorry?---Joint - joint funds.

19MR DEVRIES:

And where did the money come for the land - for

20

the building.

You said the land was about 80,000-90,000

21

I think you said, the house was about 160?

22

---That's just my division of the figures.

23

incorrect there but it was bought as a house and land

24

package through Metricon.

I may be

25I'm not sure what time Your Honour is - - 26HIS HONOUR:

I think 15 is normal.

27MR DEVRIES:

Sorry?

28

30

Is that right?

I was just a bit concerned when I saw the

tipstaff get up.

I believed he was trying to

make - - -

31HIS HONOUR:

No.

1.MJ:DB 02/12/08 2Cressy

No. FTR:24

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DISCUSSION

1MR DEVRIES:

- - - make a subtle comment to me Your Honour.

2HIS HONOUR:

No.

3

time.

4MR DEVRIES: 5

I'll make the unsubtle comment when it's

I didn't mean to put your tipstaff in any shape or

form Your Honour.

6HIS HONOUR:

It's good for him.

7MR DEVRIES:

Very dangerous thing for me to do.

How long did

8

you reside at Dorrington Street, Point Cook?

9

---Three to four years I think - I'm sorry, I can't be

10

quite sure.

11Approximately?---Yes, about three years. 12And did Mr Johnson's three children by his marriage stay with 13

you at any stage?---Yes, they were with us every

14

fortnight.

Every fortnightly weekend sorry.

15Now weekends mean different things to different people.

What

16

do you mean by weekends in this situation?---From

17

approximately 9 p.m. on Friday evenings when he would

18

arrive home with them from picking them up at Belgrave or

19

in Malvern at the Harold Holt pool until Sunday after

20

lunch when he'd take them home again back to Belgrave.

21What about school holidays?---We would normally just stick to 22

the fortnightly weekends still then.

Occasionally they'd

23

spend a little bit longer, have a couple of weekdays with

24

us and go to the zoo and stuff like that.

25Who cooked for them while they were staying with you?---I was 26

the cook in the house.

27Sorry, did you do any laundry for them?---Yes I did. 28What about cleaning up after them?---M'mm. 29Who did that?---Yes I cleaned up after all the six kids. 30When they were taken on - to places like the zoo which you've 31

just mentioned, who went along with them?---We all went

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DISCUSSION

1

as a family.

We actually had a membership so we went

2

there quite often.

3

went there quite often.

We had a membership to the zoo so we

4In the period that you were at Dorrington Street, Point Cook 5

were there any separations during the course of your

6

relationship then?---No.

7HIS HONOUR:

Where was Mr Johnson working?

Still at Barwon

8

Water?---He was still doing his work at Barwon Water and

9

he was also doing work for Primelife in the legal

10

department there.

11Primelife?---Primelife. 12MR DEVRIES:

Now when did Mr Johnson start out on his own, in

13

his own business?---I believe it was when we were in

14

Point Cook that he entered the office space in Bourke

15

Street because he did actually want to set up his own

16

firm and move his clients into this sort of private

17

practice and work more a consulting side of things, so I

18

think it would have been in 2006 that we sort of both

19

decided on this (indistinct) Johnson idea.

20And what involvement did you have with him starting up his own 21

business?---Well it was primarily him but we sort of

22

talked about names together.

23

law myself, wanting to study, getting my own degree.

24

Basically (indistinct) supported him setting up the

25

business, but it was his one man show, so.

He'd suggested me going to

26Did you ever work in his business?---Yes I did, yes. 27

As office

administration.

28Sorry?---Office administration. 29What did that entail?---That entailed doing shopping like 30

getting coffee and biscuits, going to supermarket, doing

31

his banking for him, doing accounting.

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All of that sort DISCUSSION

1

of - all that sort of stuff just to make things easier

2

for him so he could make the money.

3Did you spend any time at the premises where he ran his 4

business?---Yes.

5What sort of hours were you there?---Sort of two to - well, 6

normally about two days a week.

7

three, yes.

Normally from ten to

8Did he conduct any of his business from any of your 9

residences?---We had a home office at Point Cook, yes.

10

The kids commonly refer to it as the computer room

11

because when he wasn't working they'd be on the computer.

12Did you do any work for him in that office?---No, no. 13Who looked after that office in terms of keeping it clean and 14

tidy et cetera, et cetera?---I pretty much stayed out of

15

that office because that was his domain.

16You then moved from there to 166 Queen Street, Altona? 17

---That's right.

18How was that property located?---We'd actually spent a lot of 19

our weekends down in Altona because it was a nice beach

20

for us to go to with the children on the weekends.

21

I'd seen the area was developing rather nicely.

22

point in time, which was approximately 2005, water front

23

property was $600,000 down there and it's not 1.2 million

24

so I'd suggested to James it would be a really prudent

25

investment for us to find something down there.

26

couldn't afford the $600,000 at that point in time, but I

27

kept an eye on it and then this property came up.

I,

At that

We

28Before this property came up, did you look at any other 29

properties?---Yes.

30Together - - -?---Approximately five other properties. 31Together or alone or a bit of both?---By myself. 1.MJ:DB 02/12/08 2Cressy

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He was DISCUSSION

1

working.

2All right.

You're saying that this property then came up?

3

---Yes it did.

It had been on the market for a while.

4

I'd been watching it.

5

missed the first auction but the real estate agent called

6

me up and said would I like to have another look at it

7

and I said yes I would.

8

it would be high 600s at that stage, this was in 2006 a

9

year later.

It was extremely rundown.

I'd

He was asking or suggesting that

And I spoke to James about it and I said

10

look you know I think it would be really good but it's

11

really rundown we'd need to spend a lot on it to renovate

12

it to live in it before we could redevelop it later on.

13

And he said look we really couldn't afford 600,000 and he

14

said maybe five, that we could get finance for that, and

15

so I tried negotiating with the agent.

16

sort of went through this - this haggle.

17

540 and I said no I'd need at least 20 to do some

18

renovations so we could live in it.

19

that 520 will you take that and the next day he called

20

and said you know the owner is happy with that.

He asked - we He got down to

I said look I have

21Where did the - so how much deposit did you ultimately pay to 22

purchase that property?---I gave over $2000 cash to

23

Tasielle Hassan who was the real estate agent and then

24

James and I had about a week to get the other $50,000

25

together which I had 27 in my Westpac account and he had

26

some invoices due so we scraped it together just in time.

27In whose name was the purchase - who was the property 28

purchased?---In James's.

29Why was that?---Basically all of the financial stuff was left 30

up to him and that aspect for negative gearing if we ever

31

needed to rent the properties out so it would be tax

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DISCUSSION

1

efficient and I didn't have the income to borrow.

2

didn't have that borrowing capacity.

I

3Who looked after the preparation of your tax returns and things 4

like that?---James did all of that.

5

lawyer.

He's a taxation

That's his speciality.

6Now did you do any - you said the property was run down? 7

---Incredibly.

8Did you do anything to attend to that situation?---Well let's 9

put it this way it looked like an old pub when you first

10

walked in the door.

It had soggy carpets, yellow walls,

11

and I wanted to live in there with - with James and the

12

children so everything needed to be ripped out entirely.

13

The walls had to be scrubbed and cleaned and freshly

14

painted.

15Sorry, just slow down a bit. 16

Let's stick to the carpets for a

moment?---OK.

17Who ripped the carpets out?---I physically ripped them out, 18

pulled out all the wood off the floor, every single nail.

19What did you say about the wood on the floor sorry? 20

---Underneath the carpet there was wood over the

21

floorboards.

22Yes?---There were panels of wood that had been nailed in and I 23

had to physically rip all of those out as well.

24Did anything have to be done to the floorboards that were under 25

that wood?---They needed to be sanded yes.

26And who did that?---I hired a sanding guy, a local guy, to do 27

that.

It took five days to do that.

28Who organised to get him there?---I did. 29When he finished doing that did you replace the floor 30

coverings?---No, we polished the floors.

31All right.

What else had - you then talked about the walls and

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DISCUSSION

1

the ceilings of the property.

2

of that.

Who did that?---I did all

3What did that involve?---That involved sugar soaping the walls, 4

scrubbing them down at least three times.

I had to

5

actually physically mop the ceiling which was quite

6

difficult and give them all two to three coats of paint

7

to get the yellow effect away.

8Your Honour I know it's not quite a quarter past but there are 9

a couple of things I have to raise with Your Honour.

10HIS HONOUR: 11

Yes.

Is it a convenient time to complete the

evidence for the day?

12MR DEVRIES:

The evidence yes but there are a couple of things

13

I need to raise with Your Honour.

I know that the

14

witness has not been cross-examined and there's not a bar

15

to speaking to her, but I normally wouldn't speak to a

16

witness even being examined, but I will need to speak to

17

my client - - -

18HIS HONOUR:

The potential conflict issue.

19MR DEVRIES:

Yes.

20HIS HONOUR:

Yes.

21MR DEVRIES:

And I'll do that in the company of my instructor.

22HIS HONOUR:

Yes.

23MR DEVRIES:

And I will - I should flag Your Honour I will be

24

taken some advice form the Ethics Committee and I'm not

25

sure where that will place me tomorrow but I've been

26

thinking about it while I've been on my feet and my

27

concern is growing.

28HIS HONOUR: 29

We will face it tomorrow after you received

appropriate advice from the Ethics Committee.

30MR DEVRIES:

If Your Honour pleases.

31MR JOHNSON:

Excuse me, Your Honour?

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DISCUSSION

1HIS HONOUR:

Yes, Mr Johnson?

2MR JOHNSON:

Might I be allowed just a submission on that last

3

point.

I'd like to jog Mr Devries's memory because he

4

made a very clear strong statement and assurances to

5

Justice Cavanough on 20 June and they'll be clearly

6

stated in the transcript of that Practice Court hearing.

7

Mr Devries said words to the effect, "And even if

8

Mr Johnson issues proceedings against me or my instructor

9

we will almost definitely not cease to act for her.

We

10

will continue to act for her regardless because otherwise

11

she'll be unrepresented".

12

that - grateful for the plaintiff and or for the carriage

13

of the matter that Mr Devries gave those assurances to

14

Justice Cavanough on that day.

15HIS HONOUR:

And I'm actually fortified

Thank you for that Mr Johnson.

That does not

16

preclude Mr Devries seeking advice of the Ethics

17

Committee and he will be entitled to do so.

18MR DEVRIES:

Thank you, Your Honour.

19HIS HONOUR:

Anything else?

20MR DEVRIES:

No, Your Honour.

21HIS HONOUR:

Adjourn until tomorrow morning then.

22<(THE WITNESS WITHDREW) 23ADJOURNED UNTIL WEDNESDAY 3 DECEMBER 2008

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DISCUSSION