Brothel Gate Day 10 Full Day

1MR DEVRIES:

Still proceeding, Your Honour.

2HIS HONOUR:

Thanks.

3

Now, Mr Johnson, has Mr Cockram arrived

at court?

4MR JOHNSON:

Mr Cockram was served last night and he is

5

expected at 9.30.

Before we call him, Your Honour, I'm

6

obliged to inform the court and my learned friends of

7

certain matters I believe regarding the continuation of

8

the defence's case.

9

yesterday with – I think it was referred to as Knight's

In light of my acquaintance

10

case, the requirement to foreshadow certain things to the

11

court and my learned friends.

12

Jones v. Dunkel as of last Friday.

13

fair warning that is given of his intended use of my

14

Family Law Act affidavit materials.

15

Also my acquaintance with Plaintiff's counsels

And the fact that this matter has to go forward to 9

16

February next year anyway, which is closer to my original

17

three to four week estimate, which as things have

18

progressed since the beginning of this year was probably

19

a bit skinny in any case.

20

close with Mr Cockram's evidence but I will be calling

21

necessary, expected and previously subpoenaed one or two

22

other witnesses when we resume in the new year.

23HIS HONOUR:

You should be applying to do this.

24

through this.

25

do with it?

26MR JOHNSON:

The defence case will not

Let's go

I don't see what Knight's case has got to

There was a suggestion that a rule mentioned

27

yesterday by Mr Devries that he had to give me fair

28

warning about use of some of the materials from the

29

Family Law Act proceedings, and so I'm providing fair

30

warning as well.

31

Law affidavits - - -

1.CI:CS 12/12/08 2Cressy

FTR:1

In terms of use of use of the Family

44

DISCUSSION

1HIS HONOUR:

I'm sorry.

Well, you given some warning.

2

got no reason to put the case over till tomorrow.

3

not sure what you're warning there.

That's I'm

4MR JOHNSON:

Your Honour - - -

5HIS HONOUR:

Knight's case involves certain costs and third

6

parties.

7MR JOHNSON: 8

There we go.

I'm only acquainted with the rule

from the fact that it was mentioned yesterday - - -

9HIS HONOUR:

What's Jones v. Dunkel got to do with it?

10

Mr Devries has said that he will not take Jones v. Dunkel

11

point against you.

12MR JOHNSON:

In respect of those four witnesses that we need

13

that agreement, and I perhaps made that a little hasty

14

because I should've negotiated for Your Honour to draw

15

positive inferences rather than zero inferences.

16

that as it may with the proposed use of the Family Law

17

affidavit material of mine, I intend to call

18

Ms Leanne Kelly my accredited family law specialist of

19

the period as my witness.

20

O'Dwyer who was amongst those I subpoenaed.

21

28 I subpoenaed on 28 November this year.

22HIS HONOUR:

But be

Also Federal Magistrate Amongst the

If you're going to call that subpoena I would

23

suspect there'll be an application to have it set aside.

24

Have you called that subpoena on?

25MR JOHNSON: 26

I suspect with some of the subpoenas that I will

call, they will be set aside.

27HIS HONOUR:

Yes, I would to.

28MR JOHNSON:

If I may - - -

29HIS HONOUR:

You wish to call Leanne Kelly in relation to the

30

Now, Leanne Kelly - - -

affidavit or - - -

31MR JOHNSON:

The wording of that, "Lived with or partly lived

1.CI:CS 12/12/08 2Cressy

FTR:1

45

DISCUSSION

1

with" - - -

2HIS HONOUR:

Is Ms Kelly available?

3MR JOHNSON:

I have not made enquiries overnight, Your Honour.

4HIS HONOUR:

Why not?

5MR JOHNSON:

Because she is one of a number of people I will be

6

calling.

7HIS HONOUR:

Where is Ms Kelly's offices?

8MR JOHNSON:

Either west of the Westgate Bridge or Moonee

9

Ponds, Your Honour.

10HIS HONOUR:

I'm sure that Ms Kelly, being an officer of this

11

court, if requested will come to court post haste if she

12

can.

13MR JOHNSON:

May I say I'm - - -

14HIS HONOUR:

I'd stand the matter down for you to telephone her

15

and ask her if she'd like to attend as soon as she can.

16MR JOHNSON:

There are several others that I – who are amongst

17

my 28 I subpoenaed on the 28th of the 11th, and I

18

foreshadow there'll be objections to the subpoena.

19

are my good friends Richard Anderson and Warwick Nelson

20

from Harwood Andrews.

Two

21HIS HONOUR:

What do you wish to subpoena Mr Anderson for?

22MR JOHNSON:

They are relevant to the 2nd and 3rd defendants'

23

by counterclaims arguments, as foreshadowed of a no case

24

action.

25

suggestion that there's some sort of bullying, or I'm a

26

Herscu type, Flower Hart, Callanan type of vexatious

27

bully claim in joining the 2nd and 3rd defendant by

28

counterclaim.

29HIS HONOUR: 30

Also the issue of my credibility and the

There may be others - - -

I don't see how they could give evidence in

relation to that.

31MR JOHNSON:

The question went – it was put - - -

They - - -

1.CI:CS 12/12/08 2Cressy

FTR:1

46

DISCUSSION

1HIS HONOUR:

Just let me finish first, Mr Johnson.

2MR JOHNSON:

Certainly, Your Honour.

3

It's complicated, Your

Honour.

4HIS HONOUR:

It's not complicated.

It's simply a matter of

5

listening or having the courtesy to do so.

The questions

6

that were put to you related to your motivation in

7

writing some letters, which contained certain paragraphs

8

threatening action against Harwood Andrews.

9

how Richard Anderson or Warwick Nelson could give

I do not see

10

evidence in relation to that.

Secondly they're matters

11

that effect – simply put as to your credit as I

12

understand it, so that it's a collateral issue on which

13

extrinsic evidence is not admissible.

14

Ms Sofroniou could not cross-examine or could not broach

15

an issue beyond cross-examining you, and you can't call

16

positive evidence on your credibility.

17

relevance apart from that would they have?

In other words

What other

18MR JOHNSON:

Your Honour has a number of correspondences - - -

19HIS HONOUR:

Do they have a relevance apart from that?

20MR JOHNSON:

Yes, Your Honour.

Relevant to my proposition that

21

to the contrary I was trying to negotiate a reasonable

22

outcome ex gratia, the plaintiff having no vindicatible

23

claim against me without the necessity for protracted

24

litigation and legal expenses, Your Honour.

25

make one other point which I think will bring this

26

altogether?

27

presentation yesterday afternoon.

28

advocate and adopt his analysis of the domestic

29

relationship, the conclusion is that for all of Calendar

30

Year 2004, 2005, 2006 and later I was in three domestic

31

relationships.

1.CI:CS 12/12/08 2Cressy

May I also

Drawing out of my learned friend Mr Devries' Now, if I play devil's

All three ladies were nourished

FTR:1

47

DISCUSSION

1

financially.

2

briefly with child by me.

3

Mr Devries' analysis were for periods of in excess of two

4

years, and ended less than two years ago.

5

ladies would have standing to bring de facto property

6

claims against me under the old Act Part 9, or under the

7

new Relationships Act.

8HIS HONOUR: 9

All three had or claimed to have or were if All three relationships on

All three

Now, as a serial monogamist - - -

That's a very dangerous admission you're making

but - - -

10MR JOHNSON:

As devil's advocate, Your Honour.

As - - -

11HIS HONOUR:

In relation to that – just calm down.

12MR JOHNSON:

Yes, Your Honour.

13HIS HONOUR:

In relation to that, what's relevant to that?

14MR JOHNSON:

As a serial monogamist, living alone in a

15

household of one for all of that three year period, I

16

submit that's an abomination that I could be legally held

17

to be in even one domestic relationship.

18HIS HONOUR: 19

That's a submission, and we aren't into

submissions yet.

20MR JOHNSON:

I intend to call my girlfriend of the period,

21

Elisabeth Erasmus as a witness to that relationship I had

22

with her - - -

23HIS HONOUR:

Was that - - -

24MR JOHNSON:

- - -and my living arrangements - - -

25HIS HONOUR:

- - - in 2004 to six wasn't it?

26MR JOHNSON:

Early 2004, all of 204, all of 205, all of 206,

27

and into 2007.

28

part of the arrangement - - -

29HIS HONOUR: 30

She can give evidence which - she's not

I understand what you'd be seeking to call her to

give evidence to.

31MR JOHNSON:

Thank you, Your Honour.

1.CI:CS 12/12/08 2Cressy

FTR:1

48

Also, I'd say that as DISCUSSION

1

part of the plaintiff's case her solicitors David Hanlon

2

and Colin Twigg and former solicitor, her current

3

solicitor James Turnbull, swore affidavits to support her

4

case, particularly interlocutory proceedings.

5

should have been made available to me to cross-examine on

6

their affidavits as part of the case - - -

They

7HIS HONOUR:

No, that's not how a common law trial proceeds.

8MR JOHNSON:

I will be calling on them by subpoena if necessary

9

to give evidence as hostile witnesses as - - -

10HIS HONOUR: 11

witnesses.

12MR JOHNSON: 13

They won't be hostile witnesses, they'll be your

Exactly, exactly, and no doubt they will seek to

contest those subpoenas also Your Honour.

14MR DEVRIES:

Can I be heard on this Your Honour.

15HIS HONOUR:

Yes, we'll do one at a time.

16MR JOHNSON:

I have a couple of other clear warnings - - -

17MR DEVRIES:

I'll put him finished, Your Honour.

18HIS HONOUR:

No he hasn't finished.

19MR JOHNSON:

I'm halfway through my pages of notes,

20

Your Honour, seven pages.

21MR DEVRIES:

May it pleases Your Honour.

22HIS HONOUR:

It doesn't please me Mr Devries, but I - - -

23MR DEVRIES:

Yes.

24MR JOHNSON:

Irrespective of any use Mr Devries or Ms Sofroniou

25

wish to make a judgment into that account, I'll be

26

submitting that that case is not now, if it ever was in

27

the previous 350 years good law in this jurisdiction,

28

because it's a back-door violation - - -

29MR DEVRIES: 30

It's a principle.

It's a submission for later on,

Your Honour.

31HIS HONOUR:

It's a submission for later.

1.CI:CS 12/12/08 2Cressy

FTR:1

49

DISCUSSION

1MR JOHNSON:

Very well, I'll pass that Your Honour.

2HIS HONOUR:

Jones v. Dunkel is still good law in civil trials,

3

it no longer applies in criminal trials.

4MR JOHNSON:

Continue on.

I'll be making similar submissions in respect of

5

the case's Generally v. Raithe and Daughter v. Denke, or

6

- I can't pronounce it.

7HIS HONOUR: 8

Generally v. Raithe has got nothing to do with

this case.

9MR JOHNSON: 10

It's a submission.

Thank you, Your Honour.

I give fair warning to

Mr Devries.

11HIS HONOUR:

It seems to me Mr Johnson that, particularly from

12

your last couple of items is that you're just simply just

13

filibustering.

14

application in relation to your case.

15

remarked on this before and I'll do it again.

16

perception of you, is that you are a, to put it mildly, a

17

very intelligent person.

18

could actually be put more highly than that.

You aren't now making a genuine You – I've My genuine

I wouldn't be surprised if it

19

You have thus shown, if I may say so, a remarkable

20

ability when you want to, to understand how this case is

21

run.

22

want to, you have displayed real natural skills in this

23

regard.

24

that, when you divert into irrelevancies and

25

filibustering like this, there's a clear inference that

26

you're doing it to waste time, and try to derail the

27

case, because you're too intelligent not to understand

28

that's what you're doing.

29

If you have not been an advocate before, or you

I mean that genuinely.

When you depart from

You're not assisting your case.

I've tried to

30

remind you of that, not simply to get this case finished,

31

but so you will in this case, do justice to yourself.

1.CI:CS 12/12/08 2Cressy

FTR:1

50

DISCUSSION

1

Because when I come to write my decision, I want to do it

2

in a way which is fair, not just to the plaintiff, but to

3

you.

4

on me.

5

around these courts all my professional life, and I can

6

see through this tactic and it doesn't divert me.

7

You're not assisting yourself trying these tactics I've told you, for better of for worse, I've been

You're better off sticking to sensible submissions

8

of which I know you are capable to assist yourself.

9

Having given you that bit of advice in your best

10

interests, can you now make to me a sensible submission

11

about what you want to do today, and what you want to do

12

about it.

13MR JOHNSON:

Given that we have to go into February in the new

14

year, my view is that these proceedings, and these second

15

proceedings should have proceeded together.

16

disadvantaged by - - -

17HIS HONOUR:

I've been

I've overruled that, because there's no way the

18

other proceedings could proceed with this.

19

there's a different plaintiff in them as I understand it.

20

Secondly, there are a series of defendants.

21

simply mold the two and bring them in here without any

22

notice.

23

that before this trial.

24

Firstly,

I can't

Thirdly, no application was properly made to do

No order to that effect had been made.

There seems

25

to me to be no disadvantage to you in having this case

26

proceed, and indeed it would seem to me despite your best

27

endeavours to the contrary to be in your very best

28

interest to have this case heard and determined and

29

disposed of.

30MR JOHNSON:

Your Honour, as I mentioned on the morning - - -

31HIS HONOUR:

Now you can get out of your head this - any idea

1.CI:CS 12/12/08 2Cressy

FTR:1

51

DISCUSSION

1

that I'm going to bring the other proceeding into this

2

proceeding.

3

is all.

I'm hearing Action No.9665 of 2007 and that

Now I'll just proceed with that.

4MR JOHNSON:

I have a copy - - -

5HIS HONOUR:

What witnesses do you say you now wish to call?

6

It seems to me to be the basis of an application by you

7

to put the matter over until next year or not to proceed

8

beyond today.

9MR JOHNSON: 10HIS HONOUR:

I believe natural justice requires - - And if you don't close the case today?

Who do you

11

wish to call?

You've foreshadowed one witness so I can

12

understand you may wish to call, that's Leanne Kelly.

13

You foreshadowed a second witness I understand you may

14

wish to call.

15MR JOHNSON:

Elisabeth Erasmus.

16HIS HONOUR:

Elisabeth Erasmus.

17

I can understand that she will

go to a relevant issue.

18MR JOHNSON:

Thank you Your Honour.

19HIS HONOUR:

Now keeping your high intellect steadily focussed

20

on the issues that are in this case, what other

21

witnesses, sensibly, do you wish to court.

22MR JOHNSON:

The Federal Magistrate, Damian O'Dwyer.

23HIS HONOUR:

Well, why do you wish to call His Honour?

24MR JOHNSON:

So we can discuss the hobbling based on orders

25

obtained by Mr Devries, 90 per cent drafted by him in

26

that jurisdiction.

27HIS HONOUR: 28

Well that's got nothing to do with the issues in

this case that would be relevant.

29MR JOHNSON:

It does go to a number of issues Your Honour.

30HIS HONOUR:

It goes to no issues.

31MR JOHNSON:

It goes to um - I had - I wish to give Mr Devries

1.CI:CS 12/12/08 2Cressy

FTR:1

52

What issue does it go to?

DISCUSSION

1

fair warning that I will be - and I can refer to a number

2

of examples even from yesterday afternoon's presentation.

3

I'll be asking Your Honour to consider your residual and

4

continuing jurisdiction under Chapter 4 of the Legal

5

Practice Act to deal with misconduct complaints which I

6

have made a number of times.

7HIS HONOUR:

That is not a matter before me.

My jurisdiction,

8

in this case, is to hear the claim and the counterclaim.

9

I've - - -

10MR JOHNSON:

Unfortunately - - -

11HIS HONOUR:

- - - you've already given me a bad throat, having

12

to remind you of that throughout this case.

13MR JOHNSON:

I apologise for having - - -

14HIS HONOUR:

I don't wish to strain my voice any further today

15

by having to constantly repeat that.

16

you had some sensible focus.

17

witnesses who it would seem to me to be relevant to call

18

in your own interests.

19

Erasmus.

20

to the claim against you or any of the causes of action

21

stated by you in your counterclaim?

22MR JOHNSON: 23

Now for a moment

You've identified two

Leanne Kelly and Elisabeth

Who else do you wish to call in relation either

Your Honour, there are the other witnesses that I

mentioned moments ago.

Your Honour - - -

24HIS HONOUR:

Who?

25MR JOHNSON:

The four people from Harwood Andrews - - -

26HIS HONOUR:

Sorry?

27MR JOHNSON:

- - - and Mr Turnbull as well.

28HIS HONOUR:

Which ones from Harwood Andrews?

29

You wish to call Mr Hanlon?

them.

Do you wish to call Mr - - -

Let's go through

30MR JOHNSON:

In chronicle order, David William Hanlon.

31HIS HONOUR:

Yes?

1.CI:CS 12/12/08 2Cressy

FTR:1

53

DISCUSSION

1MR JOHNSON:

Colin Twigg.

2HIS HONOUR:

You appreciate if you call Mr Hanlon, you cannot

3

cross-examine him?

4

non leading questions?

5MR JOHNSON: 6

That you'll only be able to ask him

Thank you Your Honour.

I - I didn't, but even as

a hostile witness - - -

7HIS HONOUR:

I think you did.

8MR JOHNSON:

- - - you can't.

9HIS HONOUR:

You would have to prove hostility in the technical

10

sense of that word.

11MR JOHNSON:

Thank you Your Honour.

12HIS HONOUR:

You can't simply call a witness for the purpose of

13

hostilling him.

14MS SOFRONIOU: 15

And I'd object to that course in due course Your

Honour.

16HIS HONOUR:

Well I'd hear from Ms Sofroniou.

17

submissions from you at the moment.

18

Mr Hanlon.

19MR JOHNSON: 20

M'mm.

I'm just getting

So we'll call

Mr Colin Twigg on exactly the same

principles, including an anticipated objection.

21HIS HONOUR:

I don't understand what Mr Twigg's got to do with

22

the case.

You haven't led any evidence as yet relating

23

to Mr Hanlon or Mr Twigg, but let's proceed on.

24MR JOHNSON:

Richard Anderson and Warwick Nelson.

25HIS HONOUR:

In relation to what?

26MR JOHNSON:

Some of the materials that are in exhibits, being

27

correspondence passing between myself and those

28

(indistinct).

29HIS HONOUR:

Those documents are in.

30MR JOHNSON:

Yes, but only as to sending and receipting, not as

31

to the contents Your Honour.

1.CI:CS 12/12/08 2Cressy

FTR:1

54

DISCUSSION

1HIS HONOUR:

The contents speak for themselves.

I can read.

2MR JOHNSON:

I just wasn't aware that you could draw inferences

3

of the fact out of the contents as the exhibits that have

4

been put to you Your Honour.

5HIS HONOUR:

I don't understand, part of the fact finding

6

process is drawing proper inferences, not guesses where

7

you establish principles.

8MR JOHNSON:

Thank you, Your Honour.

9HIS HONOUR:

I don't see any relevance in Mr Henderson or

10

Mr Nelson.

11MR JOHNSON: 12

I may wish to call one or more members of the

Victoria Police.

13HIS HONOUR:

To do with what?

14MR JOHNSON:

All such members were amongst my subpoenas.

15HIS HONOUR:

In relation to what?

16MR JOHNSON:

Certain actions of the parties during or Ms Cressy

17

in particular during the alleged period of this alleged

18

domestic relationship and subsequent.

19HIS HONOUR: 20

Identify what issue.

21MR JOHNSON: 22

One goes to that incident on the grand final

weekend 2007.

23HIS HONOUR: 24

Well, that's too vague a basis for adjournment.

That's irrelevant, that's outside any relevant

period.

25MR JOHNSON:

Another goes to the circumstances that Mr Peter

26

Cockram will give evidence about which was instrumental

27

in - - -

28HIS HONOUR: 29

plaintiff.

30MR JOHNSON: 31

Mr Cockram was allegedly having an affair with the

Amongst other things, Your Honour, which led to

my - - -

1.CI:CS 12/12/08 2Cressy

FTR:1

55

DISCUSSION

1HIS HONOUR: 2

I don't see any relevance in those witnesses being

subpoenaed.

3MR JOHNSON:

Your Honour, that's the turning point of which I

4

moved into my household of one, Your Honour, in Bourke

5

Street in the city.

6HIS HONOUR:

Apart from the police.

7MR JOHNSON:

Perhaps one or two health industry professionals,

8

Department of Human Services and/or hospital people.

9

Again relating to that grand final incident.

10HIS HONOUR: 11

That's got nothing to do with this case, this is

not the Family Law Court.

12MR JOHNSON:

It's a tipping point, Your Honour.

13HIS HONOUR:

Nothing to do with this case, I would rule that

14

evidence inadmissible.

15MR JOHNSON:

I wish to give a fair warning to Mr Devries and I

16

will specifically refer to a number of actions of

17

Mr Devries since the commencement of these proceedings to

18

support a basis for my application that Your Honour

19

consider your residual and continuing jurisdiction for

20

misconduct complaints under Chapter 4 of the Legal

21

Practice Act.

22HIS HONOUR: 23

I have no such jurisdiction as I can see it, my

reading is - - -

24MR JOHNSON:

It's clear in the legislation.

25HIS HONOUR:

- - - that dispute is if any complaint is made to

26

the Commission I would not deal with any complaint in

27

this proceeding.

28

is that some of the wild and unsubstantiated allegations

29

you have been making as a practitioner of 18 years

30

standing, as a man who says he has served on committees

31

for the Institute and who says he has in his bag or in

1.CI:CS 12/12/08 2Cressy

FTR:1

The only concern I have quite frankly

56

DISCUSSION

1

his possession a book on ethics.

That is why I raised

2

that with you yesterday, but that is not a matter for my

3

jurisdiction at all, other than it may go to issues of

4

credit.

Now, let us proceed.

5MR JOHNSON:

Your Honour, the problem here - - -

6HIS HONOUR:

Let us proceed.

7MR JOHNSON:

The problem here is there are overlapping

8

jurisdictions and I agree with you the Legal Services

9

Commissioner as the dominant jurisdiction.

10HIS HONOUR:

He does, I would not entertain it.

You are

11

wasting the court's time and it seems to me you are

12

discrediting your application.

13MR JOHNSON: 14

I would like to say that those allegations are

perhaps wild but they are also carefully substantiated.

15HIS HONOUR:

They are wild.

Mr - - -

16MR JOHNSON:

I may refer to a number of - - -

17HIS HONOUR:

Mr Johnson, it seems to me the more you beat on

18

this drum the more you are simply proving the lack of any

19

genuine intent in this application for an adjournment.

20MR JOHNSON: 21

May I give half a dozen examples, Your Honour,

just from when this trial proceedings commenced.

22HIS HONOUR:

If you want to persuade me to continuing today and

23

force me to close your case you can.

24

relevant.

25

accede to but I would entertain application not to

26

require you to close your case today, if you were able to

27

persuade me that you had some genuine witnesses who it

28

would advance your interests to call.

29

seems to me you have pointed to two, Leanne Kelly and

30

Elizabeth Erasmus.

31

the counter-claim, I want to hear from Ms Sofroniou on

1.CI:CS 12/12/08 2Cressy

This is not

I would entertain - I would not say I would

FTR:1

Now, so far it

Mr Hanlon, I assume, would relate to

57

DISCUSSION

1

that, but I would not allow him to be called simply to be

2

made hostile or an application for hostility simply

3

because he gives evidence you don't like.

4

have yet to discern any relevance.

5MR JOHNSON:

The rest I

Your Honour, doesn't the relevance speak for

6

itself where a solicitor swears an affidavit on behalf of

7

a client that that solicitor should be available for

8

cross-examination as part of the presentation of the

9

client's case?

10HIS HONOUR:

I have already explained what the position is,

11

there are no affidavits before me other than those that

12

have been put to you as an inconsistent statement.

13

you wish to call Mr Hanlon, subject to hearing from

14

Ms Sofroniou, you can call him, but you will not have a

15

right to cross-examine him.

16MR JOHNSON:

Thank you, Your Honour.

If

The absence of affidavits

17

from the plaintiff's side of the case was due to my not

18

knowing - and I believe that I have maybe not good but

19

reasonable excuse for not knowing that all of the

20

parties' affidavit materials are already before Your

21

Honour as part of the body of evidence.

22

know that I needed to cross-examine - - -

23HIS HONOUR: 24

I simply didn't

I don't know how many times I told you that the

affidavits are not before me as part of the evidence.

25MR JOHNSON:

But they were before Federal Magistrate O'Dwyer.

26HIS HONOUR:

Mr Johnson, you are wasting time and you're

27

beginning to talk me out of any inclination to grant your

28

application.

29

basis upon which you say you don't wish to close your

30

case today.

31

that Mr Richards would check to see if Mr Cockram is

1.CI:CS 12/12/08 2Cressy

Just simply identify to me the genuine

Perhaps while you are doing so do you think

FTR:1

58

DISCUSSION

1

outside court.

2

perhaps before he disappears we ought to hear from him.

3MR DEVRIES: 4

Mr Cockram has arrived.

Before we do, Your Honour, can I just rise to

mention one thing.

In my submission - - -

5HIS HONOUR:

If it's quick.

6MR DEVRIES:

It will be very quick.

7

It seems to me

In my submission the only

two relevant witnesses are Ms Kelly and Ms Erasmus - - -

8HIS HONOUR:

He hasn't finished yet.

9MR DEVRIES:

But, Your Honour, I would be submitting to Your

10

Honour that he should now call them and get them to

11

court, so that we can at least get them out of the way

12

today because he could have got them to court, they are

13

available.

14

solicitor unless she has gone on holidays and to adjourn

15

the matter just for those two and they are both present

16

and available.

17HIS HONOUR:

Certainly Ms Kelly would be available as a

Mr Devries, the matter has got to be adjourned

18

anyway because it won't on any view finish.

One of the

19

reasons it won't finish is because you are unavailable

20

next week.

21

Ms Erasmus and Ms Kelly now to see if they can come to

22

court now, we will deal with Mr Cockram.

I will ask the defendant to contact

23MR DEVRIES:

That's why I'm asking before we call Mr Cockram.

24HIS HONOUR:

Yes.

25MR DEVRIES:

That's all I'm asking Your Honour, and I apologise

26

if I have taken too much time to ask that.

27HIS HONOUR:

Well, I think I have wasted my time sitting long

28

hours, all I have done is destroyed my own health and I

29

won't do it again when this case resumes.

30

I'm going to rise.

31

Ms Kelly and Ms Erasmus to see if they can come to court

1.CI:CS 12/12/08 2Cressy

FTR:1

Mr Johnson,

I would direct you to telephone

59

DISCUSSION

1

today to give their evidence.

What happens if they are

2

part heard in their evidence Mr Devries?

3

here next week to do anything about it?

4

if you can get them in and otherwise we will hear from Mr

5

Cockram in 10 minutes.

6MR DEVRIES:

May it please Your Honour.

7MR JOHNSON:

Thank you Your Honour.

8

You won't be All right, see

(Short adjournment.)

9HIS HONOUR: 10MR JOHNSON:

Did you contact Ms Kelly and Ms Erasmus? I was unsuccessful in my two attempts to contact

11

Leesy, Elizabeth.

Ms Kelly, I spoke with her through the

12

intermediary of her own personal assistant.

13HIS HONOUR:

Yes.

14MR JOHNSON:

Ms Kelly is not available to attend court today

15

and she is adverse to the idea of giving evidence.

16

have certain issues, Ms Kelly and I, regarding her - - -

17HIS HONOUR:

I don't need to know that.

18MR JOHNSON:

Thank you, Your Honour.

19HIS HONOUR:

It's a matter for you.

20MR JOHNSON:

Also - sorry, Your Honour.

We

I'll give - - I did just introduce

21

myself to the witness, Peter Cockram who I had not met

22

until only a few moments ago.

23

that he is not going to be a cooperative witness, Your

24

Honour, and so I will need to have evidence given in the

25

same session by Constable Jennifer Locke from the

26

St Kilda - - -

27HIS HONOUR: 28

It seems quite clear to me

You may need to but I don't see any relevance.

You've subpoenaed Mr Cockram who will give evidence.

29MR JOHNSON:

He's not going to be cooperative, Your Honour.

30HIS HONOUR:

Mr Johnson, I don't know that.

31

I'm sure

Mr Cockram will do - he's here on subpoena, I'm sure that

1.CI:CS 12/12/08 2Cressy

FTR:1

60

DISCUSSION

1

he will tell the truth.

2

any more deliberate time wasting on your behalf.

3MR JOHNSON:

Let's call Mr Cockram without

As Your Honour pleases.

4
Mr Cockram, you may be seated.

Mr Cockram, your

full name is Peter?---Francis Cockram.

7Peter Francis Cockram.

Your address, it can be professional if

8

you don't wish to give your residential address?---I live

9

at 15 Feversham Avenue in Park Orchards.

10Yes, and what is your occupation?---I'm an accountant. 11Thanks, Mr Cockram.

Now, you probably know nothing about this

12

case and Mr Johnson - - -?---I don't know what I'm doing

13

here, Your Honour.

14No, and Mr Johnson has had served on you a subpoena to have you 15

brought to court today in this case.

16

your witness.

17MR JOHNSON:

Thank you, Your Honour.

Mr Johnson, he's

Can you tell His Honour

18

how long you have lived at that Park Orchards address?

19

---Um, I - I believe about 15 years, Your Honour.

20Have you ever been employed by or done any consulting work for 21

the Salvation Army?---I - I've been employed by the

22

Salvation Army.

23What was the duration of that employment, please, sir? 24

---Approximately four - four and a half years.

25Over what timeframe, Mr Cockram?---I left there last March so 26

that was four and a half years - - -

27That would be from September 2002 to March 2007?---That would 28

probably be it, yes.

29Thank you, sir.

I'm not sure of the appropriate warning, or

30

whether any warning's appropriate, Your Honour.

31

some of the questions I wish to as Mr Cockram - - -

1.CI:CS 12/12/08 2Cressy

FTR:1

61

Because

DISCUSSION

1HIS HONOUR: 2

will give it.

3MR JOHNSON: 4

Ask the questions, if any cautions are needed, I

Mr Cockram, do you or have you at any time known a

lady by the name of Pippin Cressy?---I don't know.

5You don't know if you've known her?---Your Honour, I had a 6

stroke and I'm already - has - has little - a lot - and

7

there's lots of things I don't remember in my life.

8HIS HONOUR: 9

When did you have your stroke, Mr - - -?---In

2002, Your Honour.

10And it's affected your ongoing memory?---Yes. 11MR JOHNSON:

Has that affected your memory of events before

12

2002 or after 2002?---Um, more so before because I'm

13

still gradually rebuilding my life.

14HIS HONOUR:

Yes.

15MR JOHNSON:

Mr Cockram, have you ever been known by or adopted

16

any other names other than Peter Francis Cockram?---I

17

wouldn't think so, why would I want to do that?

18Have you ever, at any time for any purpose, assumed my name, 19

James Johnson?---I've never met or known who you are.

20

I've got no idea what I'm doing here.

21That doesn't quite answer the question, Mr Cockram.

Have you

22

ever used my name, James Johnson, as if it were your

23

name?---No.

Not that I'm aware of anyway.

24I'd like to show the witness a document, Your Honour. 25

Mr Cockram, this document it's an email message, isn't

26

it?---Appears to be so.

27And it's sent from a James Johnson - - 28MR DEVRIES:

Your Honour?

29HIS HONOUR:

Yes?

30MR DEVRIES:

The witness should be asked if he has seen this

31

email as a - - -

1.CI:CS 12/12/08 2Cressy

FTR:1

62

DISCUSSION

1HIS HONOUR:

I don't know what it is.

Is it?

2MR DEVRIES:

Your Honour, he shouldn't be asked the contents

3

unless he first of all identifies whether he knows

4

anything about the document.

5MR JOHNSON:

I will come to that Your Honour.

6HIS HONOUR:

No, you will come to it now.

7MR JOHNSON:

He would not have seen this as such because it

8

would have been electronic.

9HIS HONOUR: 10

(Indistinct).

Well, you've put an email before Mr Johnson.

What

question do you ask before Mr Cockram?

11MR JOHNSON:

Interesting slip Your Honour.

I intend to ask him

12

whether he was the author and whether he sent this to me.

13

But I intend to do that later after this steps.

14HIS HONOUR:

Well you can ask him that now.

15MR JOHNSON:

Mr Cockram, did you write this email?---I couldn't

16

tell you that.

17Could you look at the date that the email was sent? 18

16 December 2003.

19

says on this document.

Tuesday

Isn't that correct?---That's what it

20If you had sent that email to me at that date, would you be 21

able to remember that, or would your memory be affected

22

by the stroke you said you had in 2002?---I don't

23

remember anything about this document at all.

24

(indistinct).

25May I ask you to read who it was sent from? 26MR DEVRIES:

Your Honour, I object.

Remember

James Johnson?

If he knows nothing about

27

this document, he cannot give any evidence about this

28

document.

29HIS HONOUR: 30

Well I agree, but I haven't heard the question yet

Mr Devries.

31MR DEVRIES:

You've just jumped the gun a shade.

I'm sorry Your Honour.

1.CI:CS 12/12/08 2Cressy

FTR:1

63

DISCUSSION

1HIS HONOUR:

Mr Johnson, what do you want him to do?

2MR JOHNSON:

I want to ask him about the Hotmail account from

3

which this email was sent.

4HIS HONOUR: 5

You can ask him if he identifies that Hotmail

account.

6MR JOHNSON:

Mr Cockram, can you identify that Hotmail account?

7

[email protected]?---I'm sorry Your Honour.

8

don't.

9HIS HONOUR:

You don't know anything about that Hotmail

10

account?---No Your Honour.

11

(indistinct) Your Honour.

12Yes.

No, if you don't recognise it, you don't recognise it.

13MR JOHNSON:

(Indistinct).

I've lost the

Do - is this something that you might have

14

forgotten, or do you have a clear?---I got nothing

15

(indistinct).

16HIS HONOUR:

I

I have no idea what I'm here for.

Mr Johnson - - -?---(Indistinct response).

17- - - you cannot ask him any questions about a document he has 18

not identified and if he doesn't identify it, he doesn't

19

identify it.

20MR JOHNSON: 21

Now don't get upset Mr Cockram.

We're actually at the point Your Honour where I

anticipated we would be before the witness was called.

22HIS HONOUR:

Well I didn't anticipate anything.

There's

23

nothing I could anticipate in this case, including its

24

conclusion, but what - you're bound by your witnesses's

25

answer.

He doesn't identify the document.

26MR JOHNSON:

And on that basis I have no - - -

27HIS HONOUR:

He has sworn he doesn't know.

28MR JOHNSON:

- - - more questions for this witness about this

29

document.

30HIS HONOUR:

Thank you Mr Johnson.

31MR JOHNSON:

Thank you Your Honour.

1.CI:CS 12/12/08 2Cressy

FTR:1

64

DISCUSSION

1HIS HONOUR: 2

Mr Devries, do you have any questions of

Mr Cockram?

3MR DEVRIES:

Absolutely not Your Honour.

4HIS HONOUR:

Ms Sofroniou?

5MS SOFRONIOU: 6HIS HONOUR:

No Your Honour. Thank you.

Mr Cockram, thank you for your

7

attendance.

It's all probably been very bemusing to

8

you?---I've got nothing.

9If I tried to explain to you about it, I don't think it would 10

probably clarify anything at all.

All I can say is it's

11

been an unusual case.

12

attendance.

13

pressure and you are now excused from attendance?---Thank

14

you Your Honour.

15

(Witness excused.)

Thank you very much for your

I trust that you weren't put under any

16<(THE WITNESS WITHDREW) 17MR JOHNSON:

There is one minor footnote to that evidence Your

18

Honour.

19

despite an affidavit of service being sworn by

20

Mr Wittekind was not actually served on that witness.

21

There was a second affidavit of service sworn by the same

22

process server, who the witness - actually my um,

23

concierge at my apartment, she tells me that she was in

24

Adelaide, so couldn't possibly have been served, so we

25

appear to have had two falsely sworn affidavits of

26

service by Mr Wittekind.

27HIS HONOUR: 28

It became clear that the original subpoena,

Well that's a matter for you to take up with the

authorities.

29MR JOHNSON:

I said to the - - -

30HIS HONOUR:

Now let us proceed with this case.

31MR JOHNSON:

Your Honour given that evidence I most definitely

1.CI:CS 12/12/08 2Cressy

FTR:1

65

DISCUSSION

1

need to call Miss Jennifer Locke of the St Kilda Road

2

Police Station, who wants to give evidence.

3HIS HONOUR:

For what subject?

4MR JOHNSON:

Contradicting the evidence that Mr Cockram has

5

given, and identifying Mr Cockram, and the investigation

6

that Constable Locke undertook.

7HIS HONOUR: 8

To prove what in relation to this issue?

This

case?

9MR JOHNSON:

To prove Your Honour that there was a

10

relationship, a domestic - sorry a sexual relationship, a

11

lengthy duration of relationship between the plaintiff

12

and that witness Your Honour.

13HIS HONOUR:

How would Ms Locke be able to prove that?

14MR JOHNSON:

By - virtue of her having interviewed the

15

plaintiff and Mr Cockram in respect of that relationship

16

during the early part of 2004 Your Honour.

17HIS HONOUR:

Well any out of court spoken by Mr Cockram would

18

be inadmissible as hearsay.

19

made by the plaintiff to that effect, that may have some

20

relevance.

21

matter that's of really rather than anticipating evidence

22

see what comes.

23

so manner, Mr Johnson seems to be stating that he cannot

24

close his case, not withstanding he's called Mr Cockram.

25

That fully doesn't affect you as much as it does

26

Ms Sofroniou and I, but he has obviously identified a

27

number of witnesses, the large majority of whom don't

28

seem to relate to this case at all, but there are three

29

who potentially may.

30

the affidavit on which the plaintiff relies as containing

31

an admission.

1.CI:CS 12/12/08 2Cressy

If there was any admission

I'll hear from Mr Devries on that.

It's a

In a confused and probably deliberately

That's Leanne Kelly in relation to

It goes to the existence of the domestic

FTR:1

66

DISCUSSION

1

relationship.

2

who may potentially be relevant to this issue, and so

3

(indistinct) Ms Sofroniou and Mr Hanlon and no doubt he

4

wishes to call in relation to the allegations made

5

against Ms Daniel and Harwood Andrews, as yet totally

6

unsubstantiated, so in the mean - the counterclaim,

7

Elisabeth Erasmus who would go to the -

The case isn't going to finish today anyway on any

8

stretch of the imagination so that it would seem to me,

9

subject to all probabilities of hearing from Ms Sofroniou

10

and from you, I don't see how I can force him to close

11

his case today or require him to do so.

12MR DEVRIES:

I don't believe - sorry, with respect Your Honour,

13

I don't believe I could even ask you to force Mr Johnson

14

to do that.

15

following, there is nothing to stop Mr Johnson here and

16

now calling Mr Hanlon, he is present in court and he is a

17

compellable witness.

18HIS HONOUR:

In respect to the witnesses is the

I will hear from Ms Sofroniou on that because she

19

foreshadowed an objection but I agree with that

20

otherwise.

21MR DEVRIES:

With respect, Your Honour, the objection arises as

22

soon as Mr Johnson made that application.

There is

23

nothing to stop him saying those words, "I call

24

Mr Hanlon," and we'll see what happens.

25

two witnesses, Mr Johnson has been aware of the issues

26

for a number of those.

27

he has decided he wants to call these people.

28

what the issues were - - -

As for the other

It's only last night he says that He knew

29HIS HONOUR:

I can't shut him out though because - - -

30MR DEVRIES:

I'm not suggesting that, Your Honour.

31HIS HONOUR:

So what is the point?

1.CI:CS 12/12/08 2Cressy

FTR:1

67

DISCUSSION

1MR DEVRIES:

The point is, Your Honour, I will be seeking my

2

client's costs of today because effectively they have

3

been wasted.

4HIS HONOUR: 5

I will hear your application, but it seems we have

got to go over from today anyway.

6MR DEVRIES:

We do, Your Honour.

7HIS HONOUR:

Yes, but let's not waste time now.

8MR DEVRIES:

Five hours of today has been wasted if Mr Johnson

9

can't go any further today.

10HIS HONOUR: 11

Let's just see.

It was an application rather than a speech, Your

Honour.

14HIS HONOUR: 15

Sorry,

Mr Devries, but - - -

12MR DEVRIES: 13

Without having speeches.

You foreshadowed an application, I will hear from

Ms Sofroniou.

16MR DEVRIES:

Thank you, Your Honour.

17MS SOFRONIOU:

Your Honour, there are two matters to address

18

Your Honour on, the first is the conduct of the matter

19

generally.

20

out of the course that Your Honour has adumbrated.

21

However, I think I owe it to the people sitting behind me

22

to just make a couple of points about that very shortly.

23

Your Honour, at the very opening of this case the first

24

day was taken up with applications concerning litigation

25

guardians.

26

application and Your Honour has ruled accordingly.

27

light of that my submission is, albeit his status as

28

litigant in person, and I hope the fairness that this

29

side, as well as the court, has tried to show him in that

30

regard there is no doubt about it an elephant in the room

31

that should be addressed.

1.CI:CS 12/12/08 2Cressy

It may be that I can't convince Your Honour

As was Mr Johnson's right he resisted that

FTR:1

68

In

DISCUSSION

1

My submission, and it's only my suggestion which

2

could be wrong, it's not a legal one, is that the act of

3

closing the defendants case is likely to be one of great

4

anxiety for Mr Johnson and one which perhaps

5

understandably he would seek to delay.

6

by way of criticism and I may be wrong about that.

7

However, in light of the speech he gave today where he

8

was going through a list of possible people who might be

9

summoned or since it was inevitable that the matter of

I don't say that

10

going to go to February, I draw on that to make that

11

submission to Your Honour.

12

The thing that is omitted in all of this is that the

13

position of the second and third defendants by counter-

14

claim is not the same as the other parties.

15

inevitable for us that the matter goes in to February.

16

Where I come from at least it's common among counsel that

17

if other counsel says they're unavailable that is given

18

respect to.

19

Wednesday are unavailable next week.

20

me that it's impossible, then I accept that.

21

saying is we actually don't understand why we have to

22

come back in February.

23

when one looks at the cross-claim itself, because I have

24

foreshadowed one of those rare applications, a no case to

25

answer submission, rarely even made let alone upheld, and

26

this is a screamingly cogent example of where an

27

application at least ought to be made, not wanting to

28

pre-empt it's outcome, the substance of the claim claims

29

malice and maleficence of a type that most - as Your

30

Honour has gleaned from Mr Johnson - most legal

31

practitioners don't even put on paper without having some

1.CI:CS 12/12/08 2Cressy

It is not

I am unaware of why Monday, Tuesday,

FTR:1

If my friend tells All I am

That position is strengthened

69

DISCUSSION

1

cogent evidence to back it.

2

Mr Johnson, and I am moving onto the second matter

3

now, is now purporting to call the party whom he has

4

accused of that because it has got something to do with

5

the counter-claim.

6

through on two different grounds.

7

Johnson has quite candidly complained that he hasn't had

8

an opportunity to cross-examine.

9

would have access to affidavits and cross-examination to

In my submission that should be seen First of all Mr

He thought that he

10

do that and he has been, as he may see it, stymied

11

because I am making an application that the case be

12

dismissed before I need to call him.

13

Honour that the request to call him is a pre-text.

14

an attempt to try to put to Mr Hanlon things that are

15

irrelevant, that are perhaps even scandalous and I have

16

some strength in making that submission because Your

17

Honour has seen enough of the correspondence and the

18

state of mind that has passed between those parties to

19

make it clear that this is a collateral device.

20

Furthermore, if Mr Johnson did wish to call Mr Hanlon, my

21

submission would be that if Your Honour didn't see it as

22

a pre-text and just say enough, this court is not going

23

to be used to continue whatever anxiety issues Mr Johnson

24

may have in this.

25

that way.

26

who have had to leave their practices, quite properly,

27

because they are parties to this case.

28HIS HONOUR:

I submit to Your It is

The court process will not be used

There are several legal practitioners in here

I have observed that.

29MS SOFRONIOU:

That the court will draw the line and say

30

enough, and if that's an appellable issue, it's an

31

appellable issue, but that is enough.

1.CI:CS 12/12/08 2Cressy

FTR:1

70

At the very least DISCUSSION

1

would Mr Johnson in respect of any of the further

2

witnesses he says he wishes to call, a conviction that is

3

by no means firm when he discusses them and which we have

4

already seen from Mr Cockram's useful evidence where the

5

man has almost had to be arrested that it was of no help

6

to the court at all, would Mr Johnson at the very least

7

provide this court with the detailed basis - maybe even

8

down to the questions that he proposes to ask these

9

witnesses, before he is given leave to do so, because in

10

the history and circumstances of this case my clients are

11

now going to be dragged back in February at the edge of a

12

no case submission.

13

submissions into one.

14HIS HONOUR:

I am sorry to roll both of those

No, I can understand, Ms Sofroniou, I will say

15

this that I have great sympathy for the position that

16

your client has been placed in, there being brought to

17

this court the type of allegations contained in the

18

counter-claim.

19

the Bar and the judiciary, I would not have seen even a

20

handful of times, if that, because of the ethics

21

In my long years in this area, both at

And I've waited for nine days to hear that evidence.

22

Mr Johnson deliberately expressly declined the

23

opportunity to cross-examine Ms Cressy when you had

24

elicited from her that he had absolutely nothing to do –

25

Mr Hanlon had nothing to do with the taking of the

26

documents in the other matters from Dorrington Street by

27

Ms Cressy.

28

everything but walk away from the allegations he was

29

making.

30MS SOFRONIOU: 31HIS HONOUR:

It seemed to me then Mr Johnson was doing

Indeed Your Honour. His desire now to call Mr Hanlon, in my view, does

1.CI:CS 12/12/08 2Cressy

FTR:1

71

DISCUSSION

1

invite the type of comment that you have addressed to me

2

as a perfectly proper comment you have, or submission you

3

have made.

4MS SOFRONIOU: 5HIS HONOUR:

If it please the court, Your Honour. The difficulty I do have is that one could only I

6

think in very rare occasions, refuse to permit a witness

7

to be called if the witness is patently irrelevant.

8

Mr Hanlon strictly can't be forced to go to the witness

9

box.

But

He can be invited to it, if he didn't do, so I

10

suppose Mr Johnson could subpoena him, and then you could

11

apply to set aside the subpoena.

12

Mr Johnson I suppose could erect some sort of

13

argument to say, "Well I wish to ask questions of

14

Mr Hanlon relating to the allegations of the

15

counterclaim".

16MS SOFRONIOU: 17

It's at that point, Your Honour, that my

submission comes in - - -

18HIS HONOUR:

As you could.

19MS SOFRONIOU:

Given the manner in which the counterclaim part

20

of his case is being conducted, for Mr Hanlon to be a

21

witness in his case, in my submission, Mr Johnson should

22

be asked to make that proposition - - -

23HIS HONOUR: 24

He should identify what issues he's going to ask

Mr Hanlon about.

25MS SOFRONIOU: 26

Yes, and not at the level of generality of, "Oh

it's about the counterclaim".

27HIS HONOUR:

It seems to me that that is not only improper, but

28

it is a very caging submission, and I agree with it, if

29

for no other reason that to try to get some sort of

30

management into this case.

31

address that issue now.

1.CI:CS 12/12/08 2Cressy

FTR:1

I think it's best that we

Thanks Ms Sofroniou, that's of 72

DISCUSSION

1

assistance.

2

Mr Johnson, Mr Hanlon is of course not compellable

3

at the moment.

But before I were to ask Ms Sofroniou to

4

accede to your request that he give evidence in your case

5

and against him, which you so far have to - seemed to me

6

expressly declined to address, you would need to put to

7

me proper basis upon which you wish him to be called.

8

What are the issues in which you wish to ask?

9

which I hasten to add, although it should be unnecessary

The issues

10

at this stage of the trial, issues in – which have been

11

pleaded in the action.

12

When I say pleaded, I mean set out in print, in

13

black and white in the claim which is a writ, a statement

14

of claim, and the amended defence and counterclaim.

15MS SOFRONIOU: 16

Do you wish Mr Hanlon to leave the room while

that answer's is heard?

17HIS HONOUR:

No, he's a party.

18MS SOFRONIOU: 19MR JOHNSON:

He's entitled to hear.

Fine. Thank you, Your Honour, I commend my learned

20

friend once again for an excellent set of submissions.

21

see exactly where she's coming from.

22

the situation from a little step around to the left.

23HIS HONOUR: 24

I

I'm just looking at

I'm not interested in your little processes.

What

I have done - - -

25MR JOHNSON:

Yes, Your Honour.

26HIS HONOUR: - - - before I even issue an invitation to 27

Ms Sofroniou to request her client to go into the witness

28

box as a witness in your case - - -

29MR JOHNSON:

Yes, Your Honour - - -

30HIS HONOUR:

What I wish to do, is to have some understanding

31

as to how that would be relevant rather than to subject

1.CI:CS 12/12/08 2Cressy

FTR:1

73

DISCUSSION

1

Mr Hanlon to the type of questions that we've just heard,

2

and the type of wild allegations that so far have been

3

made in this case without any object to substantiate

4

them.

5

Mr Hanlon?

Mr Johnson, what issues – what do you wish to ask

6MR JOHNSON:

There are two issues, Your Honour.

7HIS HONOUR:

Yes.

8MR JOHNSON:

Ms Sofroniou is in effect requesting that I

9

provide interrogatories.

10HIS HONOUR:

No, I'm asking – I'm not asking that.

What are

11

you – what do you wish to address, because all Mr Hanlon

12

is asked if he would be good enough to give evidence on

13

your behalf?

14MR JOHNSON:

Yes, these are two issues that I would require

15

those answers to those interrogatories before I could

16

plead this type of - - -

17HIS HONOUR:

What question?

18MR JOHNSON:

Claim properly.

19HIS HONOUR:

What question?

20MR JOHNSON:

They go to the independence of mind brought by the

They go to the - - -

21

legal practitioner to the claims of the client before

22

taking steps, or as soon as reasonably practical

23

thereafter.

24HIS HONOUR:

The first of those steps - - -

I'll just ask you why that's relevant - - -

25MR JOHNSON: - - -was the investigation of the claims set out in 26

the caveat, and therefore justifying the Callanan caveat

27

that Harwood Andrews lodged to support the equitable

28

charge of that period, which is of course the creation of

29

the security interest attaching to my asset.

30 31

Secondly, the investigations that a certain legal professional took into the relevance of the documents

1.CI:CS 12/12/08 2Cressy

FTR:1

74

DISCUSSION

1

removed from my home, recovered by the police to the

2

proceedings in the Family Law jurisdiction, in which they

3

were subpoenaed, and locked out of me when I only did

4

them for commercial purposes so that I could step back

5

into my legal practice that I'd been shaken out of for

6

more than 12 months, Your Honour.

7

Secondly, the relevance of that said body of my very

8

important commercial and personal records to these

9

proceedings.

I submit that there'd been no, or

10

negligible relevance to 90 per cent of those materials to

11

the Federal Magistrates' Court process in which they were

12

subpoenaed, or even indeed to these proceedings before

13

Your Honour today.

14HIS HONOUR:

It's got nothing – the counterclaim against

15

Mr Hanlon's got nothing to do with whether those

16

documents are relevant in this proceeding.

17

logical hiatus there.

There's a

18MR JOHNSON:

But there was valuable documents taken - - -

19HIS HONOUR:

I'll hear Ms Sofroniou about those two issues, sit

20

down.

21MR JOHNSON:

Thank you, Your Honour.

22MS SOFRONIOU:

As to the issues regarding the caveat,

23

Your Honour, it's not – let me put it this way.

24

the validity of the caveat that's actually the number for

25

the claim.

26HIS HONOUR:

It's not

No, I understand that.

27MS SOFRONIOU:

Whether or not there were grounds for a caveat

28

in the properties of the – with Mr Johnson generally, is

29

a matter that he's pleaded in Paragraph 21 of the

30

counterclaim against Ms Cressy.

31HIS HONOUR:

Yes.

1.CI:CS 12/12/08 2Cressy

FTR:1

75

DISCUSSION

1MS SOFRONIOU:

That in turn - it's not being said other than

2

that it was fraudulently and maliciously done.

3

heard Mr Johnson's response, what he wants to ask about

4

is in fact the substance of these proceedings.

5

have an adequate interest in the properties to justify

6

the placing of caveats?

7

Why was the caveat placed there?

As I've

Does she

It doesn't

8

actually go to the very matter that is not only the onus

9

on Mr Johnson, but is the only matter in the counterclaim

10

namely fraud and malice.

11HIS HONOUR:

I must say I have difficulty understanding the

12

counterclaim, but if you look at the caveat issue pleaded

13

in 22 to 26 - - -

14MS SOFRONIOU: 15HIS HONOUR:

Yes, Your Honour. He does allege that it was done fraudulently - - -

16MS SOFRONIOU: 17HIS HONOUR:

That's right - - -

18

- - -maliciously that Harwood Andrews lodged their

caveats.

19MS SOFRONIOU: 20HIS HONOUR:

Yes.

Now, Mr Johnson has put in evidence - - -

Now, I'm not sure about the cause of action,

21

whether that includes also a claim under s.118 of the

22

Transfer of Land Act.

23

claim.

24

at all.

25

Whether it's an intentional infliction of economic harm,

26

but a sort of conspiracy type cause of action, I don't

27

know - - -

It doesn't seem to me to have any clarity to it What the basis of the cause of action is?

28MS SOFRONIOU:

But in any event - - -

29HIS HONOUR: 30

It can't be an abuse of process

- - -but it doesn't seem to me to fit any of those

known causes of action that I've been able to find.

31MS SOFRONIOU: 1.CI:CS 12/12/08 2Cressy

Indeed, Your Honour, but I'm not even raising FTR:1

76

DISCUSSION

1

that sort of demurrer point.

2HIS HONOUR:

No, I understand that.

3MS SOFRONIOU:

Mr Johnson has put in evidence the Harwood

4

Andrews caveat referred to and he has fairly put in

5

evidence the equitable charge, which is the interest

6

described in the caveat.

7HIS HONOUR:

I follow that.

8MS SOFRONIOU: 9

Now, he then has filed a pleading which as I

understand it regardless of the taxonomy of it, says that

10

was maliciously and fraudulently done.

11

heard Mr Johnson say is that Mr Hanlon will be asked what

12

was his understanding - I'm paraphrasing, of the strength

13

of the plaintiff's case to warrant the placing of her

14

caveats on which the Harwood Andrew's caveat rests on

15

top.

16HIS HONOUR:

What I've just

Could it be argued though that if he knew that

17

Ms Cressy just did not at all have a viable claim under a

18

constructive trust, therefore the Harwood Andrews caveat

19

would be without content?

20MS SOFRONIOU:

That doesn't follow of course because caveats,

21

any caveat doesn't necessarily rest on a proven interest.

22

You'd need an arguable case effectively.

23HIS HONOUR:

This one would because Ms Cressy's not the

24

registered proprietor of the property.

25

would be at that time as an unregistered interest

26

pursuant to constructive trust.

27MS SOFRONIOU:

Indeed, Your Honour.

28HIS HONOUR: 29

And she's seeking really to charge that interest

to your client.

30MS SOFRONIOU: 31

Her interest

Now - - -

I think my proposition, Your Honour, is that

should that be a mistaken analysis of her interest - - -

1.CI:CS 12/12/08 2Cressy

FTR:1

77

DISCUSSION

1HIS HONOUR:

That doesn't matter.

2MS SOFRONIOU: 3HIS HONOUR:

It wouldn't - - That would not establish - - -

4MS SOFRONIOU: 5HIS HONOUR:

It would not - - -

6

That could not establish fraud or malice.

No, I

follow.

7MS SOFRONIOU:

That's my point, Your Honour, and so therefore

8

the rationale of the interest doesn't actually go to the

9

claim that Mr Hanlon has to meet as - - -

10HIS HONOUR:

I follow that.

Well, I understand the parameters

11

of Mr Johnson but if Mr Hanlon were to say that Ms Cressy

12

came into his door and said, "Look, I've never even met

13

Mr Johnson, but I'm going to claim that I've lived with

14

him seven years", or something that would something

15

different.

16MS SOFRONIOU: 17HIS HONOUR:

Yes.

18

But there's been never any suggestion of that.

It

wasn't put to the plaintiff.

19MS SOFRONIOU: 20HIS HONOUR:

That's the problem.

These sort of - - -

It is the problem but what do you say?

I mean if

21

he'd subpoenaed Mr Hanlon and Mr Hanlon sought to set

22

aside the subpoena, I think I'd be hard pressed to do

23

that wouldn't I?

24MS SOFRONIOU:

Your Honour, could – well, that's why I made the

25

lengthy submissions I just did, Your Honour.

26

Honour would have regard to was the styming of his

27

availability and cross-examination, and the matters that

28

I've just been adumbrating to you.

29HIS HONOUR:

I follow that.

30MS SOFRONIOU: 31HIS HONOUR:

What Your

It's a difficult issue.

Certainly, Your Honour. Particularly bearing in mind that one would like

1.CI:CS 12/12/08 2Cressy

FTR:1

78

DISCUSSION

1

to do one's best to ensure that the adjudication of this

2

case wasn't the subject of a subsequent adjudication,

3

four years later, in another place.

4MS SOFRONIOU: 5HIS HONOUR:

Yes, Your Honour, of course.

6

One needs to try to do one's best to ensure a

finality.

7MS SOFRONIOU: 8

I think it follows from that that the remaining

part of the counterclaim - - -

9HIS HONOUR: 10

- - -in which people with the status of the

defendant are accorded the utmost – yes.

11MS SOFRONIOU: 12

Yes, Your Honour.

and burglary issues?

13HIS HONOUR: 14

No, no.

He hasn't even adumbrated any questions

on that basis, and I know that that - - -

15MS SOFRONIOU: 16HIS HONOUR: 17

So it doesn't raise the theft

Those are my submissions, Your Honour. I noted that.

Mr Johnson.

I hear what you say, Ms Sofroniou.

Thanks, Ms Sofroniou.

18MR JOHNSON:

Yes, Your Honour.

19HIS HONOUR:

I cannot force Mr Hanlon to go into the witness

20

box on your behalf.

Indeed I could not draw an inference

21

against him if he declined to do it.

22

inappropriate in a case such as this to draw any such

23

inference at all, but I am prepared to invite him - - -

It would seem to me

24MR JOHNSON:

I'm sorry, Your Honour, could I ask - - -

25HIS HONOUR:

I am prepared to invite him but on the very strict

26

basis that the only questions you can ask of him are

27

questions-in-chief.

28

That they approach the relevant issues, which with your

29

intellect I'm sure you are well and truly familiar with.

30

It seems to me you're going to whether he had a genuine

31

belief in the validity of the Harwood Andrews caveat.

1.CI:CS 12/12/08 2Cressy

FTR:1

That you do not become abusive.

79

DISCUSSION

1MR JOHNSON:

Your Honour, if I may assist my learned friend I'm

2

not wishing to ask any questions in respect of the

3

outcome of Mr Hanlon's analysis of the claims Ms Cressy

4

had - - -

5HIS HONOUR:

No.

Well, you wouldn't be allowed to.

6MR JOHNSON:

I just want to ask, "What investigations did you

7

do?

What was your analysis process in respect of

8

Ms Cressy's claims to caveats?

9

did you do separate from what your client told you, and

What independent checks

10

likewise in respect to the subpoena documents?

11

independent process of analysis"?

12

Honour.

What

Not the outcome, Your

13HIS HONOUR:

"Process of analysis did you go through"? Even if there's a lack of independent

14

investigation, that's a long way from establishing fraud

15

and malice.

16MR JOHNSON:

I would say - I would say - - -

17MS SOFRONIOU: 18

This is a privileged - legally professionally

privileged - - -

19HIS HONOUR:

There is privilege and there may be an issue that

20

it's really Mr Devries' client's privilege that is at

21

stake in this.

22MR JOHNSON:

Your Honour, I would say that fraud requires

23

either actual knowledge or is so reckless that you ought

24

to know.

25

actual knowledge that Ms Cressy's caveat claims were

26

worthless or her - what she put in terms of the

27

proprietary of the taking - - -

Now, I'm not suggesting that Mr Hanlon had

28HIS HONOUR:

Sorry - - -

29MR JOHNSON:

- - - until subpoena.

I'm not suggesting that

30

Mr Hanlon had any actual knowledge or climbed into my

31

house in the dark of night.

1.CI:CS 12/12/08 2Cressy

FTR:1

80

It's an after the event. DISCUSSION

1

I'm not even challenging in the circumstances the fact

2

that Mr Hanlon put those caveats on.

3

challenging is that at the first reasonable opportunity

4

as a professional, he should not have been an automata of

5

the client, I don't know if it happened, Your Honour.

6

should have brought an independent frame of mind to the

7

claims, not allowed himself to become an instrument of

8

fraud of mischief or abuse of the Federal Magistrates'

9

Court's process in respect of the subpoenaing of

What I'm

He

10

materials and not have allowed himself, if this indeed

11

happened, I don't know, without the answers to these

12

interrogatories, and we had none of that discovery

13

process here.

14

interrogatory and that may be part of the basis of the

15

paucity of the plaintiff's evidence, Your Honour.

16

the answers to those questions in order to frame my - - -

We were just rushed to trial without

I need

17HIS HONOUR:

I understand you saying they're not suggesting?

18MR JOHNSON:

Any actual knowledge.

19HIS HONOUR:

Of Mr Hanlon of the lack of truth of the claim

20

made by Ms Cressy to have an interest in your property,

21

is that what you're saying?

22MR JOHNSON: 23

What - what I understand, Your Honour, is that

a - - -

24HIS HONOUR:

I'd like to have a yes or no answer before - - -

25MR JOHNSON:

If I may give some details, yes.

26HIS HONOUR:

You are saying that Mr Hanlon did not have any

27

knowledge?

28MR JOHNSON:

Any actual prior knowledge of the worthlessness of

29

Ms Cressy's claims embodied in her caveat or her claims

30

in regard to an appropriateness of Mr Hannon subpoenaing

31

those materials of mine off the Victoria Police and

1.CI:CS 12/12/08 2Cressy

FTR:1

81

DISCUSSION

1

putting them out of my use and control for months at a

2

very critical time in my deterioratoring or deteriorated

3

legal practice.

4

A number of legal practitioners here in court today

5

have been taken away from their legal practices and their

6

clients who need them.

I'm - - -

7HIS HONOUR:

It's by your making, Mr Johnson.

8MR JOHNSON:

No, I'm a defendant, I've been brought here.

9

I'm

not a plaintiff - - -

10HIS HONOUR:

No, you are, you're a plaintiff by counterclaim.

11MR JOHNSON:

A most reluctant one, Your Honour.

12HIS HONOUR:

I see no reluctance in the type of allegations

13

you've made.

Don't discredit yourself by making that

14

sort of comment.

15

that the evidence you wish to adduce is irrelevant.

It seems to me with that concession

16MR JOHNSON:

Not at all.

Callanan's type claim - - -

17HIS HONOUR:

You say there was no fraud and no - you're putting

18

to me there was no fraud and no malice, what does this go

19

to then?

20MR JOHNSON:

I say that there was fraud through knowledge

21

imputed by recklessness.

22

short time after - - -

23MS SOFRONIOU: 24MR JOHNSON:

Mr Hanlon should have known a

There's no such - there's no such - - Again, because I needed answers to interrogatories

25

before I could settle my pleadings.

26

of the fact that those pleadings have never been settled.

27

Much events that I've taken since they were drafted up in

28

a matter of minutes - - -

29HIS HONOUR:

I've made no secret

There's another issue involved in this and this

30

affects Mr Devries.

31

communicate with your client.

1.CI:CS 12/12/08 2Cressy

FTR:1

Mr Devries, you'll need to

82

She has a privilege in any DISCUSSION

1

advice that's given to her by Mr Hanlon and any

2

instructions given by her to Mr Hanlon for that advice in

3

relation to both the caveat and in relation to the

4

subpoena.

5

If Mr Hanlon were to give evidence and be asked

6

questions on this, the question I need to know is will

7

your client be objecting on the basis that it involves

8

the disclosure of privileged information?

9MR DEVRIES: 10

It would depend on the particular questions, Your

Honour.

11HIS HONOUR:

Yes.

12MR DEVRIES:

Your Honour, while I'm on my feet, I should have

13

mentioned this to you right at the outset.

14

left chambers, I was approached by a member of counsel

15

who runs the Victorian Bar Duty Barrister's Scheme and he

16

has said that if need be, somebody could be provided

17

amicus curio or otherwise to assist either the court or

18

Mr Johnson.

19

any part of today's proceeding - - -

20HIS HONOUR: 21

Just before I

Probably too late to get them involved for

That's irrelevant to what the - to the problem

I've got at the moment.

22MR DEVRIES:

No, no, but before I forget that.

23HIS HONOUR:

All right, don't worry about your memory.

24

trying to focus on this issue.

25MR DEVRIES: 26

I'm

Sure.

It depends on the question that's asked

but - - -

27HIS HONOUR:

I'll hear from Ms Sofroniou.

28MS SOFRONIOU:

Well, of course the answer is that Mr Hanlon

29

won't breach his client's privilege.

30

after that is a matter of waiver or whatever's forced on.

31

As to the - I'm indebted to Mr Johnson's explanation.

1.CI:CS 12/12/08 2Cressy

FTR:1

83

Whatever happens

DISCUSSION

1HIS HONOUR:

Yes.

2MS SOFRONIOU: 3

His position, I don't understand any negligence

or recklessness pleaded in the matter.

4HIS HONOUR:

No.

5MS SOFRONIOU:

So I don't really know how you jump from notions

6

of not properly doing your job if I could use that

7

neutral terminology to the particular attitude of mine

8

that malice and fraud require and it's, of course - - -

9HIS HONOUR: 10

It can't be malice, malice is an ulterior motive

and he hasn't even pretended to - - -

11MS SOFRONIOU:

Yes, and the sort of fraud that say the real

12

property acts of the various states impute constructive

13

fraud is not here what's pleaded in my submission.

14HIS HONOUR:

Well - - -

15MS SOFRONIOU: 16

It's not an equitable fraud in other words.

It's a - - -

17HIS HONOUR: 18

One takes fraud as an allegation of fraud which

one assumes is a state of mind - - -

19MS SOFRONIOU: 20HIS HONOUR:

That's right, Your Honour.

21

- - - he intentionally putting a caveat on which

he knows has no value?

22MS SOFRONIOU:

It sounds, from what Mr Johnson says, that given

23

that he has put into evidence the matrix of

24

circumstances.

25

that amounts to a certain - that that makes out his case

26

effectively.

27

Mr Hanlon's evidence can assist Your Honour in light of

28

what Mr Johnson has said.

29HIS HONOUR:

He, in submission, seeks to make out that

It doesn't appear to be a matter on which

Well, I agree with that.

Based on that I will not

30

invite him to or simply won't use my office to do that.

31

Where the matter proceeds from there is for Mr Johnson.

1.CI:CS 12/12/08 2Cressy

FTR:1

84

DISCUSSION

1MS SOFRONIOU:

Please the court.

2HIS HONOUR:

Now, where do we proceed from here, Mr Johnson?

3MR JOHNSON:

Your Honour, I have a number of submissions but

4

I'll just keep to one.

5

sorts of issues particularly the privilege point, an

6

advocate or any legal practitioner including of course

7

myself, we have two sets of duties.

8

client and the duty as an officer of the court, and every

9

ethics materials I've looked at hundreds of years into

10

I would submit that on these

The duty to the

the past - - -

11HIS HONOUR:

Yes, I notice you're - - -

12MR JOHNSON:

- - -the obligation to - - -

13HIS HONOUR:

I notice you're holding an ethics book there are

14

you?

15MR JOHNSON:

Yes, Your Honour.

16HIS HONOUR:

I'm pleased to see that.

17MR JOHNSON:

Our obligations as officers of the court to the

18

administration of justice are paramount to obligations to

19

our clients.

20HIS HONOUR:

I'm pleased that you understand that.

21MR JOHNSON:

Thank you, Your Honour.

Where we will go from

22

here is that I will issue a subpoena for those of

23

Ms Cressy's solicitors who have sworn affidavits in

24

support of her proceedings.

25HIS HONOUR: 26

I did have a - - -

Mr Johnson, if you issue subpoenas which are an

abuse of the process of this court - - -

27MR JOHNSON:

Yes, Your Honour, as I - - -

28HIS HONOUR:

- - -and I decide as such - - -

29MR JOHNSON:

- - -my documents - - -

30HIS HONOUR:

Then you'll be liable for the costs on that on an

31

indemnity basis.

1.CI:CS 12/12/08 2Cressy

FTR:1

So that you should bear in mind the 85

DISCUSSION

1

helpful remarks I have advanced to you today concerning

2

my view as to the potential relevance, because firstly if

3

they are an abuse of the process I would set them aside

4

and order costs as it usually occurs.

5

had advance notice of my preliminary views in relation to

6

the irrelevance of these subpoenas, you would be well and

7

truly on notice that no doubt if an application be made

8

on behalf of those subpoenaed for indemnity costs, if I

9

came to the view that subpoenas were being issued for an

Given that you've

10

ulterior purpose then I'd be obliged to refer these

11

papers to another organisation.

12

threat but as a fair warning.

I don't say that as a

13

There are a number of aspects about your conduct in

14

this court as a self professed officer of it that give me

15

grave disquiet, including the wild allegations pleaded in

16

your counterclaim which you have not substantiated which

17

now you've walked away from today.

18

from the Bar table from the privileged position of the

19

Bar table.

20

puts you on fair notice that if you continue this

21

behaviour, particularly if you abuse your right to

22

subpoena witnesses in circumstances where they're clearly

23

irrelevant to the issues in this case, then you put

24

yourself in jeopardy in issues as to costs and quite

25

possibly as to referral of these matters to appropriate

26

authority.

Wild allegations made

Now, I'll say no more because it just simply

27MR JOHNSON:

I'm indebted to Your Honour.

28HIS HONOUR:

Just bear that steadily in mind.

29MR JOHNSON:

I'm indebted to Your Honour for the quality of

30

those warnings.

31HIS HONOUR:

Your Honour, may I say - - -

In an endeavour to assist you to stay out of

1.CI:CS 12/12/08 2Cressy

FTR:1

86

DISCUSSION

1

trouble, Mr Johnson, because you've enough talent that if

2

you apply it productively I'm sure you could well in your

3

chosen career.

4

now?

5MR JOHNSON:

Now, Mr Johnson, what do you wish to do

I wish to make two quick points, Your Honour.

The

6

first is that I hold myself highly accountable to the

7

highest standards of the profession.

8

professional I do not discourage.

9

which may either be vindicated if I've done wrong, or I

As a true

I invite criticism

10

may be cleared of and – and elevate my regard within the

11

profession.

12

in – as an officer of the court but also in the tax

13

jurisdiction.

14

to my cross-examination on my income tax returns.

15

Secondly I wish to emphasise that the problem with some

16

of my pleadings is – and Your Honour caught it in a

17

nutshell; the conspiracy type aspect.

18

to interrogatories out of a discovery process which never

19

happened because of the way the plaintiff ran the case,

20

in order to settle my pleadings.

21HIS HONOUR:

And I make the same in respect of – not only

For example my frankness - of my answers

I needed answers

Also - - -

That's a very damaging admission by you.

If you

22

made allegations in pleadings of which you had no

23

evidence to support them, you as an officer of this court

24

know you had no right to do that.

25MR JOHNSON:

I did not say no evidence.

I said that I needed

26

answers in order to settle my pleadings, Your Honour.

27

Also - - -

28HIS HONOUR:

Mr Johnson, you haven't answered my question.

29

What are you going to do now in relation to your defence

30

and your defence in counterclaim?

31MR JOHNSON:

I wish the - - -

1.CI:CS 12/12/08 2Cressy

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87

DISCUSSION

1HIS HONOUR: 2

Are you going to closeout your case or what are

going to do?

3MR JOHNSON:

I wish to make one more submission, again

4

emphasising the fact that it's only information that's

5

come to hand to me - - -

6HIS HONOUR:

If you're not closing your case today you'll need

7

to make a sensible application for an adjournment,

8

because I will proceed to require to close your case and

9

I'll hear Ms Sofroniou - - -

10MR JOHNSON:

I will do that presently, Your Honour.

I just

11

want to point out that on the malice point, before I

12

request the closure I say that I can subpoena those –

13

it's four witnesses I intend to subpoena.

14

four given the quality of Your Honour's warnings to me.

15

I just want to point out that it has come to my attention

16

through affidavits I've received in these and the

17

proceedings in the other jurisdictions, from a

18

Mr Colin Twigg and Mr James Turnbull, that Ms Cressy has

19

been entirely funded by her lawyers in hundreds and

20

thousands of dollars of legal claims against me.

21

Probably only

And further that any adjustment Your Honour would

22

make to my assets would – in these proceedings would

23

result in basically the commercial effect that I'd be

24

left with zero.

25

those litigation funders would not even make a full

26

recovery.

27

course I had no evidence of.

28

Your Honour.

29

in the last few weeks, Your Honour.

30

Your Honour to contemplate that and also I wish - - -

31HIS HONOUR:

Ms Cressy would be left with zero and

Now, that is the ulterior motive which of That would be the malice,

I had no evidence of that until in – just Now, I would ask

I'm not contemplating anything.

1.CI:CS 12/12/08 2Cressy

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88

That allegation DISCUSSION

1

is again both wild and it's also it seems to me to be

2

irrelevant.

3MR DEVRIES:

It's also untrue, Your Honour.

4HIS HONOUR:

Yes, well, thank you for that, Mr Devries.

5MR JOHNSON:

That is the aspect that I would have liked to

6

cross-examined Mr Twigg and Mr Hanlon - - -

7HIS HONOUR:

Without wasting any further time, and I notice the

8

time is ten to 11, we'll achieve nothing today thanks to

9

your filibustering.

10MR JOHNSON:

What do you wish to do now?

I wish for the matter to be – I'm not sure of the

11

correct terminology but put forward until a specific date

12

at Your Honour's convenience so that I can issue those

13

four subpoenas against those four witnesses.

14HIS HONOUR:

Who will you be subpoenaing?

15MR JOHNSON:

Absolutely subpoenaing Leanne Kelly, Elisabeth

16

Erasmus.

17HIS HONOUR:

Just a minute, yes.

18MR JOHNSON:

David William Hanlon.

19MS SOFRONIOU: 20MR JOHNSON: 21

Which be done promptly to allow my learned friend,

Ms Sofroniou, to object to that.

22HIS HONOUR: 23

I object to that.

There may be an application to set that side if I

do.

24MR JOHNSON:

Yes, Your Honour - - -

25HIS HONOUR:

- - - the consequences.

26MR JOHNSON:

I'm an indebted to you.

27HIS HONOUR:

You are.

28MR JOHNSON:

Extremely indebted, and also Police Officer

29

Jennifer Locke - - -

30HIS HONOUR:

What's she got to do with it?

31MR JOHNSON:

- - -police station.

1.CI:CS 12/12/08 2Cressy

FTR:1

89

She can give evidence from DISCUSSION

1

having spoken with Ms Cressy and Mr Cockram I submit, as

2

to the nature of their relationship over a substantial

3

period - - -

4HIS HONOUR:

- - -what Mr Cockram did or did not say to a

5

Police Officer Locke is hearsay, inadmissible.

If

6

Ms Cressy made any admissions I suppose that might have

7

some relevance that a domestic existed; a domestic

8

relationship, and bring a busy police officer to this

9

court and don't adduce useful evidence from her that

10

would be an issue that no doubt the police would take up

11

with you on issues of costs.

12MR JOHNSON:

I am extremely mindful of that Your Honour.

13MS SOFRONIOU:

Also, Your Honour, subpoenas for parties to

14

bring them to court.

15

function whatsoever served by the document, he is a

16

party, he is present in court.

17HIS HONOUR:

Mr Hanlon is in court.

There is no

I haven't invited him to give evidence but that

18

doesn't mean Mr Johnson can't now ask him to give

19

evidence and then it's a matter for you and Mr Hanlon.

20MS SOFRONIOU: 21

Indeed, all I am saying is I can spare him the

issue of the paperwork.

22HIS HONOUR: 23

All right.

If that is so he can call Mr Hanlon

now if he wants to.

24MR JOHNSON:

I am not in a position, Your Honour, I am not

25

prepared or with the materials required to question

26

Mr Hanlon.

27MS SOFRONIOU:

Also in light of what Your Honour has said, I

28

understood I take Your Honour to take the view that in

29

calling him it would be irrelevant in light of the

30

concessions made.

31HIS HONOUR:

I would have to wait for the question.

1.CI:CS 12/12/08 2Cressy

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90

DISCUSSION

1MS SOFRONIOU: 2HIS HONOUR: 3

Yes, indeed. I can't really rule in advance, I don't have the

capacity to do that.

4MR JOHNSON:

Your Honour, I require - - -

5HIS HONOUR:

I regard that as extraordinary after you have

6

outlined to me what you want to ask Mr Hanlon, after

7

discussing it you must have given very careful thought to

8

why you require a solicitor who is the respondent to very

9

grave allegations made by you against him to give

10

evidence, you now don't know what you want to ask him.

11MR JOHNSON:

Your Honour, I acknowledge - - -

12HIS HONOUR:

I regard that as outrageous, frankly.

13MR JOHNSON:

Your Honour, I acknowledge what my learned friends

14

have said that I need to be wary and the appropriateness

15

of my questions with depend upon - - -

16HIS HONOUR:

What I will do is - - -

17MR JOHNSON:

I would like to take time.

18

a - - -

19HIS HONOUR: 20

How much time do you need to consider the

questions you are going to ask Mr Hanlon?

21MR JOHNSON: 22

I don't want to cause

I need to make sure that I have the materials with

me.

23HIS HONOUR:

How long do you wish - - -

24MR JOHNSON:

I would like to write the questions down and

25

provide them to Ms Sofroniou in advance and to Mr Devries

26

to make sure that I am not causing any undue anxiety for

27

Mr Hanlon, any tension between his duties to the client

28

and duties to the court.

29HIS HONOUR:

You can think through the questions you wish to

30

ask him, then you can call him to give evidence or get

31

this over with.

1.CI:CS 12/12/08 2Cressy

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91

DISCUSSION

1MR JOHNSON:

I have also - - -

2HIS HONOUR:

We have lost enough time today.

3MR JOHNSON:

I also wish to view - - -

4HIS HONOUR:

This is my court.

If you like I will stand the

5

matter down and give you sufficient time to think

6

carefully through the questions you are going to ask him.

7MR JOHNSON:

I need (indistinct) transcript.

8HIS HONOUR:

If Mr Hanlon is good enough to go into the witness

9

box and you ask him to do so and in that he must

10

understand that I do not make any requirement of you to

11

do that at all, and I would not draw any adverse

12

inference against him if he were to decline to do so.

13

But if he was good enough to do that, then it would seem

14

to me, having foreshadowed that, having made wild

15

allegations against him, the least you could do is call

16

him now.

17

with him.

18MS SOFRONIOU:

You must know what issues you wish to approach

19

He may indeed decline, Your Honour, I have not

asked him.

20HIS HONOUR:

I understand that.

21MS SOFRONIOU: 22MR JOHNSON:

Thank you, Your Honour. Your Honour, the questions need to be put

23

delicately for the reasons that I've said.

24

an opportunity to discuss them, forgive me, Your Honour,

25

with Ms Sofroniou, perhaps we can have a discussion that

26

might obviate the need whatsoever - - -

27HIS HONOUR: 28

I doubt Ms Sofroniou will wish to discuss the

matters with you.

29MS SOFRONIOU: 30HIS HONOUR: 31

I would like

No. No, she does not, you can sit down and think them

through and I will return to court in - I will give you

1.CI:CS 12/12/08 2Cressy

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92

DISCUSSION

1

half an hour which is more than generous.

If you wish to

2

call Mr Hanlon you will then call him.

3

call him then, and in the meantime if we adjourn the

4

case, and then subpoena him I will bear that in mind.

5

(Indistinct) the subpoena Mr Johnson.

If you decline to

6MR JOHNSON:

I understand that Your Honour and it may - - -

7HIS HONOUR:

It is now - by the court clock it is four minutes

8

to 11, I will adjourn until 11.30 and that will give you

9

an opportunity to gather your thoughts carefully and then

10

we will see where we go from there, all right.

11MR JOHNSON:

As Your Honour pleases.

12HIS HONOUR:

I am not going to waste the whole of today,

13

Mr Johnson (indistinct).

14MR JOHNSON:

As Your Honour pleases.

15HIS HONOUR:

I will be back exactly by the court clock at

16

11.30.

17MR DEVRIES: 18

May it please Your Honour.

(Short adjournment.)

19HIS HONOUR:

Mr Johnson.

20MR JOHNSON:

Thank you, Your Honour.

Your Honour, I note that

21

Mr Hanlon is in court today and he has been in court

22

every day of the trial.

23HIS HONOUR:

Yes, he has.

24MR JOHNSON:

One would expect him in court when we resume in

25

the New Year as well.

26

am optimistic or positive at least that I will be

27

represented by senior junior and/or senior senior

28

counsel.

29

had to someone, perhaps the President of my Law

30

Institute, who is informed of all of these proceedings

31

and has given me valuable support in that capacity in

1.CI:CS 12/12/08 2Cressy

When we resume in the New Year I

I will have given up my instructing solicitor

FTR:1

93

DISCUSSION

1

respect to these proceedings to date.

Now, my anxiety to

2

get justice and judgment pre-Christmas if possible, I

3

made that very clear on the first day of the trial and

4

even more clear yesterday when I suggested maybe

5

even - - -

6HIS HONOUR:

Actions speak louder than words, Mr Johnson.

7MR JOHNSON:

Absolutely, Your Honour, I have truncated

8

my - - -

9HIS HONOUR:

You have shown no desire to have this case

10

concluded before Christmas, you have wasted the court's

11

time including two hours today.

12

what you have.

13MR JOHNSON:

Now proceed and tell me

Given all of that and my anxiety to - willingness

14

to clip witnesses and case, we have lost that opportunity

15

for justice and judgment pre-Christmas.

16

expectations of being a client fully represented when we

17

resume in February, if I were to ask Mr Hanlon now to

18

enter the witness box I think I would further

19

unnecessarily clip my case.

20

better for Mr Hanlon to give evidence with or without

21

subpoena, I am ask him earlier in the New Year, along

22

with the other witnesses that will be called and Your

23

Honour, as will I, will have the benefit of hearing from

24

eminently qualified defence counsel at that time.

25HIS HONOUR: 26

Given my

I submit that it would be

Tell me this, you have just foreshadowed you are

going to have two silks and a junior to defend you.

27MR JOHNSON:

No, no.

28HIS HONOUR:

You have protested throughout this case you

29

haven't got the financial means to have even a solicitor

30

here for you.

31MR JOHNSON:

I personally don't, Your Honour, but given recent

1.CI:CS 12/12/08 2Cressy

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94

DISCUSSION

1

articles in the newspapers which I have circulated to my

2

learned friend and discussions, I am confident that I may

3

be able to tap into perhaps the pro bono barristers

4

scheme.

5

Legal Aid funding for these and the second proceedings.

6

We also have an opportunity over the summer - - -

7HIS HONOUR:

I have had discussions with barristers and/or

So what is your application?

Are you calling

8

Mr Hanlon today?

9

the witness box to give evidence on your behalf?

10MR JOHNSON: 11

Are you requesting him today to go into

I am not going to do that, Your Honour, I am going

to request that the matter be put forward - - -

12HIS HONOUR:

Just a moment, I am making a note of that.

So you

13

decline the opportunity to request Mr Hanlon to give

14

evidence.

15MR JOHNSON:

The opportunity will present itself naturally, I

16

may not need to issue a subpoena in February.

17

some time for discussions between the parties - - -

18HIS HONOUR:

We have

You have had the opportunity today to at least ask

19

Mr Hanlon to go into the witness box, you have not taken

20

that opportunity, I have made a note of that.

21

no doubt be a relevant circumstance should you see fit to

22

seek to subpoena Mr Hanlon next year.

That will

23MR JOHNSON:

I appreciate that, Your Honour.

24HIS HONOUR:

Still, notwithstanding your best efforts to burn

25

up the day with achieving nothing, we still have another

26

three hours to go, three and a half hours.

27

you had called Mr Hanlon, Mr Hanlon did go into the

28

witness box you could complete his evidence.

I am sure if

29MR JOHNSON:

I would prefer - - -

30HIS HONOUR:

You must know what you wish to adduce from him.

31

You would not have delivered this counter-claim without

1.CI:CS 12/12/08 2Cressy

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95

DISCUSSION

1

having some idea of what you were doing.

2MR JOHNSON:

I would prefer Mr Hanlon's evidence if he even

3

needs to be called.

4

parties that may obviate or reduce the duration of any

5

proceedings - - -

6HIS HONOUR:

We may have discussions between

I doubt it, nothing seems to have occurred in that

7

regard so far.

8

Mr Johnson, for me to other than draw a conclusion you

9

are deliberately wasting today and that will be reflected

10

You're running out of excuses,

in order for costs.

Today is wasted because of this.

11MR JOHNSON:

I will be asking also if - - -

12HIS HONOUR:

We achieved nothing today due to your obfuscation

13

obviously, the other side can't be required to bear the

14

costs of that.

15

to waste the time, busy time, much needed time of this

16

court.

Now, bear that in mind while you continue

17MR JOHNSON:

I will be - - -

18HIS HONOUR:

There are people in greater need for justice than

19

you, and you have eaten up the time of a judge,

20

barristers and particularly of this court and the

21

resources of this court with this chronic constant serial

22

time wasting and it is quite unconscionable.

23MR JOHNSON:

With respect, Your Honour, I am conscious - - -

24HIS HONOUR:

Now, proceed with your defence.

25

Are you going to

call any more witnesses today?

26MR JOHNSON:

Not today, Your Honour.

27HIS HONOUR:

Are you closing your case today?

28MR JOHNSON:

No, Your Honour, I wish to call the - - -

29HIS HONOUR:

So you are not in a position to proceed with your

30

defence today?

31MR JOHNSON:

No, Your Honour.

1.CI:CS 12/12/08 2Cressy

FTR:1

I would submit that there is no 96

DISCUSSION

1

need - - -

2HIS HONOUR:

I will hear from the other side.

3MS SOFRONIOU: 4

We are in the courts hands, Your Honour, we

request costs of today.

5HIS HONOUR:

I could require him to close, if he was

6

represented I could require him to close.

7

could have required him to close - - -

8MS SOFRONIOU: 9 10

10 years ago I

Sorry, Your Honour may have misheard me, I said

absolutely that's right, all we seek is the costs of today.

11HIS HONOUR:

The regrettable matter is the whole of today has

12

been wasted.

13

on - and no doubt you seek the same costs Mr Devries?

14MR DEVRIES:

Certainly I will order that costs be paid

I do and I also seek the payment of them as a pre-

15

condition of this matter proceeding on the adjourned

16

date, Your Honour.

17HIS HONOUR: 18

I am tempted to make that order but I won't.

What

basis do you seek them?

19MR DEVRIES:

Sorry, seek that part of the order or seek costs?

20HIS HONOUR:

No, what - - -

21MS SOFRONIOU: 22

We seek them on an indemnity basis, Your Honour,

that's the only way that it can make up the - - -

23HIS HONOUR:

I agree with that.

24MR DEVRIES:

I apply Your Honour.

25HIS HONOUR:

Yes, I will accede to that application.

26MS SOFRONIOU:

Excuse my not knowing this, Your Honour, do we

27

require an order that they be payable forthwith or would

28

that be in the normal course?

29HIS HONOUR:

I would not stay them but I would not make it a

30

precondition of anything, I could not do that.

31

do it but it would have unfortunate repercussions.

1.CI:CS 12/12/08 2Cressy

FTR:1

97

I could

DISCUSSION

1MS SOFRONIOU:

On that basis that means that the costs are only

2

assessed at the end of the trial.

3

making costs payable as a precondition to the matter

4

proceeding.

5

whether they - - -

6HIS HONOUR:

I am not talking about

I am wondering if they can be taxed now or

I think the Taxing Master would allow that,

7

wouldn’t they, that's probably more a matter for the

8

Taxing Master.

9MS SOFRONIOU:

In some places one has to make that as an

10

explicit order, I'm sorry if it is unnecessary Your

11

Honour.

12MR DEVRIES: 13

I'd be asking Your Honour to fix the costs of

today of certainly the plaintiff and the - - -

14HIS HONOUR:

If you're in a position to advise me, not as a

15

guesstimate but give me the details of those costs, I'd

16

be amenable to do - I'd better not.

17

do that, Mr Devries.

18

which you can resist an order for indemnity costs based

19

on the fact that today is now, on my calculation, the

20

sixth day on which you've been presenting your defence.

21

I don't think I'll

Mr Johnson, I see no basis upon

You've called five witnesses and yourself.

You've

22

had plenty of time to organise your witnesses.

23

repeatedly stated, you have shown much more familiarity

24

with the court processes and with the technique of

25

calling witnesses than you claim to have.

26

the case you would be required to call evidence today.

27

Indeed, last night you'd foreshadowed closing your case

28

today if Mr Cockram did not turn up.

29

As I have

You knew that

You have obviously changed your mind and I strongly

30

suspect it's for tactical purposes to forestall the

31

application being made on behalf of the second and third

1.CI:CS 12/12/08 2Cressy

FTR:1

98

DISCUSSION

1

defence of counterclaim.

2

court's time.

3

recovery.

You have totally wasted this

That regrettably cannot be a matter of

4MR DEVRIES:

The - - -

5HIS HONOUR:

I am still speaking.

6MR DEVRIES:

Sorry, Your Honour.

7HIS HONOUR:

But you have caused the parties, through no fault

8

of their own, to incur considerable costs.

9

is such that you are fortunate that I'm only making an

10

order for costs on indemnity basis.

11

propose to do.

12MR DEVRIES: 13

Your conduct

And that's what I

Mr Devries, what did you want?

I apologise for interrupting, I thought you were

looking to me, that's why I - - -

14HIS HONOUR:

No, I was just waiting for some peace and quiet.

15

It's unusual for people to talk across a judge while he's

16

delivering a ruling.

17

so - - -

18MR DEVRIES:

Everything's happened in this case

My instructor and I both apologise for that, Your

19

Honour.

My instructor was reminding me of something.

20

costs of today, my brief is two thousand - - -

21HIS HONOUR:

No, I think it's better though if you're taxed.

22MR DEVRIES:

If Your Honour pleases.

My

The other matter, Your

23

Honour, that I raise to - I'd better wait until Your

24

Honour determines what is to happen with this matter now.

25

I make the application in respect to one property.

26HIS HONOUR:

I intend to adjourn the matter to 9 February,

27

adjourn part heard.

28

Mr Harold James Johnson, pay the costs of the plaintiff

29

on a solicitor/own client basis of today.

30

that the defendant, Harold James Johnson, pay the costs

31

of the two defendants to the counterclaim - - -

1.CI:CS 12/12/08 2Cressy

FTR:1

I order that the defendant,

99

I'll order

DISCUSSION

1MS SOFRONIOU: 2HIS HONOUR:

The second and third if the court pleases. I'm sorry, the costs of the second defendant to

3

the counterclaim, Mr David Hanlon and the third defendant

4

to the counterclaim, Harwood Andrews Pty Ltd on a

5

solicitor/own client basis, the cost of today of

6

Mr Hanlon and Harwood Andrews.

7

directions which I need to give in relation to the

8

hearing next year?

9MS SOFRONIOU:

Are there any other

I'm aware of Your Honour's policy and want to

10

comply with it.

11

to make alternative arrangements for 13 February in which

12

case I should do that now?

13

Honour in a difficult position but I - - -

14HIS HONOUR:

No.

15MS SOFRONIOU:

Therefore, would Your Honour require me

I don't want to put Your

I don't want to be in this position but - - -

16HIS HONOUR:

Well, would - - Yes.

17MS SOFRONIOU:

Would Your Honour be willing not to sit on that

18

Friday or if that is an unfair request of the court then

19

I - - -

20HIS HONOUR:

No, I will do that, Ms Sofroniou.

21

your side have suffered enough.

22

this.

23MS SOFRONIOU: 24MR DEVRIES:

I think you and

Required to sit through

I'm grateful to the court and to Your Honour. As to directions, Your Honour, would Your Honour

25

consider making an order or a direction setting a date by

26

which any further subpoenas are to be taken out and

27

served?

28HIS HONOUR: 29

What do you say?

What do

you suggest?

30MR DEVRIES: 31

Yes, I could do that.

That a date towards the middle of January, Your

Honour.

1.CI:CS 12/12/08 2Cressy

FTR:1

100

DISCUSSION

1MS SOFRONIOU: 2HIS HONOUR:

No, earlier if we could please, Your Honour. I think realistically that any subpoenas - I'll

3

direct that any further subpoenas be issued on behalf of

4

the defendant be issued and served - - -

5MR JOHNSON:

May I speak on this, Your Honour?

6HIS HONOUR:

Yes?

7MR JOHNSON:

There is the Christmas interval and people are

8

hard to catch and there is a natural expiry date on the

9

subpoena process anyway.

10HIS HONOUR:

Yes.

11MR JOHNSON:

I'm happy to, rather than - not even waiting until

12

they've been formally served, I'm happy to let my learned

13

friends know and provide them with copies of subpoenas

14

when I file them with the court, Your Honour.

15HIS HONOUR:

He's got a subpoena in five days beforehand but I

16

will direct that the defendant give notice in writing to

17

the solicitors for the plaintiff and solicitors for the

18

second and third defendants on the counterclaim of the

19

names of any further witnesses who the defendant intends

20

to call in this proceeding no later than 23 January - - -

21MS SOFRONIOU:

Your Honour, is there any reason why they can't

22

be done - it's not Christmas tomorrow - by the end of

23

next week, 19 December if that please the court.

24MR JOHNSON:

Your Honour - - -

25MS SOFRONIOU:

Because then we'll be away but we'll know what

26

preparation we have to come back to.

It's not much point

27

finding out for the first time after all of the

28

time - - -

29HIS HONOUR:

Can you do that, Mr Johnson?

30MR JOHNSON:

I would prefer that not to be in the orders but I

31

would do that as a courtesy, Your Honour.

1.CI:CS 12/12/08 2Cressy

FTR:1

101

I'm happy to DISCUSSION

1

issue - - -

2HIS HONOUR:

I'm sure you will.

3MS SOFRONIOU: 4

I'll make it 15 January.

And I'm grateful to Mr Johnson, that would be

helpful.

5MR JOHNSON:

Thank you, Your Honour.

6HIS HONOUR:

Mr Johnson, you'll have to be very careful in your

7

consideration as to who you subpoena.

8MS SOFRONIOU: 9MR JOHNSON:

Your Honour, if I may that 15th - - -

10HIS HONOUR:

Indeed, Your Honour.

11

Bearing in mind, careful were the remarks I

addressed to you before.

12MS SOFRONIOU: 13HIS HONOUR:

I beg Your Honour's pardon. That's all right.

14MS SOFRONIOU:

15 January is the date of formal notification.

15

Is there a due date for them actually to be filed and

16

served in Your Honour's direction?

17

date?

18HIS HONOUR:

Is that the same

No there isn't – they have to be filed and served

19

five days before the hearing under the rules, do they

20

not?

21MS SOFRONIOU:

Yes, subject to Your Honour's direction earlier

22

I would have thought, or such earlier time as Your Honour

23

minds doing it.

24MR JOHNSON:

Your Honour, it's a notification point, and I

25

envisage as a courtesy, but not in the orders, informing

26

my learned friends well before 15 January.

27HIS HONOUR: 28

I want to make sure that all the witnesses don't

come here late.

29MS SOFRONIOU:

It's not that.

Yes - no I'm grateful to

30

Mr Johnson's efforts.

31

to come back and find that - - -

1.CI:CS 12/12/08 2Cressy

FTR:1

What I'm saying is we don't want

102

DISCUSSION

1HIS HONOUR:

What's the rule?

2MS SOFRONIOU: 3MR JOHNSON:

They've not been served or filed. It's Order 42 I believe, Your Honour.

4MS SOFRONIOU: 5

I understood they can't be required to be

present if they're given less than that notice.

6HIS HONOUR:

Less than five days notice.

7MS SOFRONIOU: 8HIS HONOUR:

But Your Honour can make a direction - - Five days is sufficient, is it not?

9MS SOFRONIOU: 10MR JOHNSON:

It's really - - My learned friend will be notified - - -

11MS SOFRONIOU: 12HIS HONOUR:

- - -the courts. Just a moment.

13MS SOFRONIOU:

It's the court's convenience I'm thinking of.

14

But if on, with those five days we come back on the 9th

15

to find that something's gone wrong with the service,

16

they're unaware, they're unavailable, it's more that that

17

I'm trying to have regard to.

18

out.

19HIS HONOUR:

What direction should I give then?

20MS SOFRONIOU: 21

If the subpoenas have gone

That subpoenas be filed and served on or

before - - -

22HIS HONOUR:

What's the last dates on which you can do that?

23MR JOHNSON:

Your Honour, we've already had problems with

24

Mr Wittekind, and I doubt that lightening will strike

25

twice.

26

follow, and as a courtesy I'll inform my learned friends

27

but - - -

I would just ask that the, that the normal orders

28HIS HONOUR:

Or directive issue - - -

29MR JOHNSON:

- - -and on the surface - - -

30HIS HONOUR:

I'll direct that any subpoena to be issued by the

31

defendant to any further witnesses be issued and served

1.CI:CS 12/12/08 2Cressy

FTR:1

103

DISCUSSION

1

no later than 31 January.

2MR JOHNSON:

Thank you, Your Honour.

3HIS HONOUR:

You'll need to issue them before then, because the

4

terms of that order, issued and served.

5

that?

Do you follow

6MR JOHNSON:

I'm grateful for that, Your Honour, thank you.

7HIS HONOUR:

Are there any other trial directions I can give?

8

Probably not.

9MR DEVRIES:

The only other order I'm seeking Your Honour, is

10

with respect to 10 Hawkhurst Court, Hoppers Crossing.

11

That's not a trial direction, but is it convenient to

12

raise it with Your Honour now?

13HIS HONOUR:

Yes.

14MR DEVRIES:

Your Honour, I'm instructed that all of the other

15

properties that are the subject of these proceedings are

16

either in the hands of mortgagees, about to go in the

17

hands of mortgagees, or subject to – in the process of

18

being subject to sale.

19

excepted from that are the Breezy Street, Brunswick

20

properties which probably nothing needs to be done, and

21

10 Hawkhurst Court, Hawkhurst Street, Your Honour.

The only properties that are

22HIS HONOUR:

What's the nature of your application?

23MR DEVRIES:

The property forthwith sold out of court,

24

Your Honour, and the proceeds – effective of the proceeds

25

after payment of the costs of sale and the mortgage.

26HIS HONOUR:

What's the basis of that application?

27MR DEVRIES:

To protect the property, Your Honour, and to

28

protect the proceeds, and also – that is the application,

29

effectively that's the application that - - -

30HIS HONOUR: 31

What's the material on which I can make such a

peremptory order without having decided this case?

1.CI:CS 12/12/08 2Cressy

FTR:1

104

DISCUSSION

1MR DEVRIES: 2

It's only the nature of the evidence that

Your Honour's had before you.

3HIS HONOUR:

I have little evidence.

That's the – it's really

4

been not a problem that the property was purchased,

5

settlement has taken place, on my recollection it means

6

that (indistinct).

7MR DEVRIES:

Your Honour, can I just - - -

8HIS HONOUR:

My recollection is that in fact the debt reduced

9

on that.

10MR DEVRIES:

Your Honour, perhaps there's another - - -

11HIS HONOUR:

Is there any evidence that that is at the moment a

12

property that's in danger, admissible evidence?

13MR DEVRIES:

Your Honour, perhaps I can do it this way with

14

respect.

There is a summons that's been referred to

15

Your Honour, that covers 10 Hawkhurst Court.

16HIS HONOUR:

Yes.

17MR DEVRIES:

Issued – that was a summons.

18HIS HONOUR:

Mr Johnson.

19

That type of exclamation does not

assist, as it doesn't affect me other than irritate.

20MR DEVRIES:

Dated 19 August 2008, Your Honour.

21HIS HONOUR:

19 August?

22MR DEVRIES:

Yes, Your Honour.

23HIS HONOUR:

It's the summons to - - -

24MR DEVRIES:

It may be – it's also I'm told in the court book

25

at p.46.

26HIS HONOUR:

That might be easier to find.

Was that you

27

summons seeking orders that the defendant give to the

28

mortgagee possession?

29MR DEVRIES:

Yes.

30HIS HONOUR:

That the mortgagee sale - sellage.

31

isn't here.

1.CI:CS 12/12/08 2Cressy

The mortgagee

I can't really join them in an order. FTR:1

105

DISCUSSION

1MR DEVRIES:

My instructions are to consent to all the orders

2

sought in respect to 10 Hawkhurst Court, Hoppers

3

Crossing.

If Your Honour has - - -

4HIS HONOUR:

Where's the AMP, they're not in - - -

5MR DEVRIES:

I have a difficulty with the absence of the AMP.

6HIS HONOUR:

It's not a difficulty, but they might not want to

7

take possession.

8MR DEVRIES:

I was going to come to that.

9HIS HONOUR:

Or does the possession have duties?

10

mightened want to take them on in this case.

11MR DEVRIES: 12

They

I kind of see that.

I was going to say - sorry I

keep getting distracted from my right Your Honour.

13HIS HONOUR:

Yes.

14MR DEVRIES:

That can be covered in my respectful submission by

15

an additional order that the AMP have a liberty to apply

16

in respect to the making of those orders.

17

way is that Your Honour could change AMP Bank effectors

18

be requested, but my client consents to the orders in

19

respect to - that are sought in respect to 10 Hawkhurst

20

Court, Hoppers Crossing.

21HIS HONOUR:

Or the other

At the moment the status of your client is the

22

person who is simply making a claim for an (indistinct)

23

interest, or alternatively for an adjustment of the legal

24

rights.

25

status quo in that respect, (indistinct).

26

to protect the status quo in that respect.

27

that power, particularly in this stage of the trial,

28

would enable me to direct a mortgagee to take possession

29

and if the mortgagee was here today, had been brought

30

here today, they might support such an application.

31

You'll be heard in a moment.

I would have power to make orders to protect the

1.CI:CS 12/12/08 2Cressy

FTR:1

106

I have power I doubt that

DISCUSSION

1MR JOHNSON:

Thank you Your Honour.

I'm indebted Your Honour.

2HIS HONOUR:

That's all right Mr Johnston.

You don't have to

3

jump up and down.

Otherwise you're asking me - if you

4

want some variant on that, it would have to be a

5

direction to the defendant to sell the property, which

6

would seem to me to invite difficulty.

7MR DEVRIES:

The alternative Your Honour - - -

8HIS HONOUR:

At this time of the year I'd be very doubtful that

9

with the proper auction period today is 12 December if

10

I've got it right.

11

You wouldn't want to sell it in January.

12

could be sold I would have thought responsibly would be

13

the end of February.

14MR DEVRIES:

You couldn't sell before Christmas. The earliest it

The only alternative that would protect my

15

client's interest Your Honour would be that an order

16

along the lines that should the mortgagee take possession

17

and sell the property that the net proceeds of sale be

18

paid into court.

19HIS HONOUR:

Yes.

I'd be prepared to make that order

20

obviously.

21

yes that's the order that Mr Johnson came here to ask

22

for.

23MR DEVRIES:

I think that's probably the order that Mr -

And a further order of injection preventing

24

Mr Johnson from dealing with or further encumbering that

25

property.

26HIS HONOUR:

Yes, I'd be prepared to protect whatever remaining

27

equity in the property there is.

28

hear from Mr Johnson, but it seems to me those are two

29

orders which ought to be made.

30MR DEVRIES:

May it please Your Honour.

31MR JOHNSON:

Thank you Your Honour.

1.CI:CS 12/12/08 2Cressy

FTR:1

107

In the meantime I'll

I object to the need for DISCUSSION

1

any orders because the status quo's already protected.

2

What my learned friend - - -

3HIS HONOUR:

How is the status quo protected?

4MR JOHNSON:

May I explain Your Honour?

My learned friend's

5

asking for judgment without the trial concluding just

6

like in the practice trials before the Practice Court.

7HIS HONOUR: 8

Well he won't get that, but what he's, and I've

already indicated - - -

9MR JOHNSON: 10HIS HONOUR:

Yes. - - - that I will not force a sale, what

11

Mr Johnson I think having rejected Mr Devries's

12

application without needing to call on you, his

13

alternative application is for an order that if the

14

property is sold before the case comes back on for trial,

15

that the net proceeds of any such sale be paid into court

16

or the court - - -

17MR JOHNSON:

I - - -

18HIS HONOUR:

- - - that you would be amenable to that

19

(indistinct).

20MR JOHNSON:

I submit totally unnecessary Your Honour.

21HIS HONOUR:

Yes.

22MR JOHNSON:

My summons I said right from the very start of the

23

trial, not required.

I would not have taken that out if

24

the plaintiff's solicitors - or by the court, I'd

25

received information that this had been set down for

26

hearing on 2 December anyway.

27

any desire for any orders under that summons.

28

that consistently from the start of the trial.

I totally withdraw any I've said

29HIS HONOUR:

All right.

30MR JOHNSON:

The status quo is protected - - -

31HIS HONOUR:

- - - having done that do you say you oppose any

1.CI:CS 12/12/08 2Cressy

FTR:1

Having done that - - -

108

DISCUSSION

1

order that if the property is sold in the meantime the

2

proceeds be paid into court?

3MR JOHNSON:

The status quo's protected Your Honour.

4HIS HONOUR:

Why do you oppose that order?

5MR JOHNSON:

Pardon?

6HIS HONOUR:

What would be wrong with that order?

7MR JOHNSON:

The status - because if at the conclusion of the

8

trial the plaintiff doesn't make out her claim, I get

9

order for - I get judgment and costs in my favour, and

10

that's a vexed issue.

11

interim, in the interlocutory process, as I have in the

12

Practice Court trials before Mr Justices Cavanough and

13

Hansen, and the plaintiff is a lady without means, which

14

is undisputed by the parties to meet any orders for

15

compensation.

16

his mind I guess Your Honour that there's no risk of in

17

his parlance Mr Johnson running away with the cash

18

because the property is protected by the plaintiff's

19

original caveat.

20

I would have suffered harm in the

Now Mr Devries it seems to have slipped

Also I understand that Mr Devries's instructors also

21

have an equitable charge or whatever they call the thing

22

and a caveat on the total as well.

23

need to disturb the status quo.

24HIS HONOUR:

Yes, well the latter point I'll raise with

25

Mr Devries.

26

caveat?

27

it.

28MR DEVRIES:

There's simply no

Mr Devries, aren't you protected by the

The property can't be sold with the caveat on

It can't be sold Your Honour, but if there is no

29

requirement for the money to be paid into court, and my

30

client doesn't release the caveat because the proceeds

31

aren't going to be paid into court, then she runs the

1.CI:CS 12/12/08 2Cressy

FTR:1

109

DISCUSSION

1

risk of first of all being put in the choice position of

2

the money - the net proceeds being paid to Mr Johnson and

3

Your Honour could understand that she doesn't trust

4

Mr Johnson or being liable for damages for frustrating

5

the sale.

6

protects her, but doesn't - - -

7HIS HONOUR:

That's the difficulty that the - the caveat

I don't think that that rationale would justify me

8

making - there is an alternative rationale and that is

9

that if in the meantime the commercial necessities are

10

that the property should be sold, it would seem to me to

11

be desirable that the property be sold and the proceeds

12

paid into court, and that would require your client to

13

lift the caveat.

14

make that order.

On that basis I would be disposed to

15MR DEVRIES:

If Your Honour pleases.

16MR JOHNSON:

Your Honour, may I be heard?

That would happen in

17

the ordinary course without an order, and is exactly what

18

happened almost a year ago with the Lisa Court property,

19

Your Honour.

20HIS HONOUR:

Yes, thanks.

21MR JOHNSON:

Thank you, Your Honour.

22HIS HONOUR:

What's the next page of that order?

23MR DEVRIES:

"That in the event that the property situator

I oppose that - - What's - - -

24

known as 10 Hawkhurst Court, Hoppers Crossing in the

25

State of Victoria be sold".

26

presume, "Until further order.

27

of that property after payment of the reasonable costs of

28

sale, and the moneys secured by the mortgage thereupon be

29

paid into court".

30HIS HONOUR: 31

Sorry, it should be I The proceeds of the sale

So, "The proceeds after payment of the reasonable

costs of sale" - - -

1.CI:CS 12/12/08 2Cressy

FTR:1

110

DISCUSSION

1MR DEVRIES:

And, "The moneys owing to the mortgagee".

2HIS HONOUR:

Yes, yes, that's your view is it, that you

3

request?

4MR DEVRIES:

If it's necessary that there be a further order

5

requiring my client to provide a withdrawal of caveat in

6

registrable form".

7

should consent to that as well.

8HIS HONOUR: 9

If that gives anyone any comfort you That's - - -

It could become problematic if the house is sold

for $15.

10MR DEVRIES:

Yes, Your Honour.

11HIS HONOUR:

I will until the hearing and determination of this

12

Perhaps I - - -

case - - -

13MR JOHNSON:

May I be heard, Your Honour?

I believe the two

14

need to go together because I submit that it's

15

unnecessary for Your Honour to make that order, but

16

making that order – it requires – it's not totally all

17

encompassing.

18

the other.

19

protected by her caveat and by her lawyers' caveat, so

20

perhaps it's unnecessary to call on the court to make the

21

first part of the order?

22

just like Justice Hansen and Justice Cavanough did in the

23

Practice Court trials, you would have to make the second

24

part - - -

25HIS HONOUR:

It requires cooperation from one party or

As a general principle I say the plaintiff is

What's the order you say I should make?

26

the nature of the order?

27

make it.

28MR DEVRIES:

But having made the first part

What's

If you're happy with it I'll

"That contemporaneously with the completion of the

29

sale of that property and the payment of the net proceeds

30

into court, the plaintiff shall cause to be provided in

31

registrable form a withdrawal of caveat lodged on her

1.CI:CS 12/12/08 2Cressy

FTR:1

111

DISCUSSION

1

behalf upon the title of that property".

And an

2

identical order except where it's got, "Plaintiff".

3

will be, "The plaintiff's solicitors", in respect to any

4

caveat they may have.

It

5HIS HONOUR:

I'll hear from Ms Sofroniou on that.

6MR DEVRIES:

Sorry, it's the plaintiff's solicitors not – I'm

7

not talking about the - - -

8HIS HONOUR:

I'm sorry, and the plaintiff's solicitors do what?

9MR DEVRIES:

Do the same thing.

10

You have a wording almost the

same but - - -

11HIS HONOUR:

I may be totally confused but I don't know what

12

you're – what do you want me to say?

I'll only make this

13

order if you – the interests of your client wish me to do

14

it.

15MR JOHNSON:

May I speak, Your Honour?

16HIS HONOUR:

No.

17MR DEVRIES:

Another form would be, "Contemporaneously with the

18

Just a moment.

complete" - - -

19HIS HONOUR:

Mr Devries, I'm not interested in other forms.

20

Could you – I'm totally confused as to what you want.

21

Can you work out what you want?

22MR DEVRIES:

It's the wording I've given to Your Honour and a

23

further order in exactly the same words except that

24

instead of, "Plaintiff", it's, "The plaintiff's

25

solicitors", provide a withdrawal of any caveat they have

26

on the property.

27HIS HONOUR:

Mr Turnbull has?

28MR DEVRIES:

Yes.

29HIS HONOUR:

I'll make those orders.

30MR DEVRIES:

May it please, Your Honour.

31HIS HONOUR:

So firstly until the hearing and determination of

1.CI:CS 12/12/08 2Cressy

Mr Johnson says that he has - - -

FTR:1

112

DISCUSSION

1

this proceeding or further order I shall order as

2

follows.

3

10 Hawkhurst Court, Hoppers Crossing be sold.

4

proceeds of the sale of that property after payment of

5

the reasonable costs of sale and after payment of any

6

moneys owing to the mortgagee be paid into court.

7

Secondly contemporaneously with the completion of the

8

sale of the property and the payment of those moneys into

9

court.

Firstly in the event that the property a The

The plaintiff shall provide in registrable form a

10

withdrawal of caveat in respect of the caveat lodged on

11

her behalf upon the title of the property.

12

contemporaneously with the completion of the sale of that

13

property the plaintiff's current solicitors shall provide

14

in registrable form a withdrawal of caveat in respect of

15

any caveat lodged by them on the title of the property.

16MR DEVRIES: 17

Then there was going to be the injunctions about

further dealing with property - - -

18HIS HONOUR: 19

Thirdly

How can I do that if he's going to sell it?

can't have your cake and eat it - - -

20MR DEVRIES:

Yes.

21HIS HONOUR:

Logically the two are inconsistent.

22MR DEVRIES:

That's only if he does – sorry, yes.

23

You

I won't take the matter further.

I won't take

the matter further, Your Honour.

24HIS HONOUR:

It's been a long week.

25MR JOHNSON:

Might I speak briefly, Your Honour?

26HIS HONOUR:

The word briefly?

27MR JOHNSON:

I am so grateful, Your Honour.

28HIS HONOUR:

- - -unusual - - -

29MR JOHNSON:

This is the trouble I've had trying to speak

30

commercially with these people for ages.

31

the door now for me to sell the property for $15 as you

1.CI:CS 12/12/08 2Cressy

FTR:1

113

They've opened

DISCUSSION

1

said.

2

such orders were required on the sale of the Lisa Court

3

property.

4

got no problem with the orders as made.

5

taking advantage of those - - -

6HIS HONOUR:

I of course won't take up that opportunity.

No

No such orders have been required here.

I've

I will not be

You have no problems with the orders, then there

7

you are.

No one's got a problem with them.

8

reservation about them but no one else does, so that's

9

all - - -

10MR JOHNSON:

Thank you, Your Honour.

11HIS HONOUR:

Now, is there anything else?

I have a

Mr Johnson, you have

12

done yourself no good today.

13

you are an intelligent man, you know when you wish to

14

focus on this case in your own interests to put, you

15

address the issues as pleaded and at large in this case,

16

all right.

17

don't do it there are two problems or a number of

18

problems.

19

which I will be deciding and that would do you no good,

20

obviously, it is important you focus on those issues,

21

keep your mind firmly planted on them so you do yourself

22

justice on them.

23

it is reflecting very badly on your credibility.

24

Thirdly, it will affect any orders for costs I make at

25

the completion of this proceeding whether you win, lose

26

or draw.

27MR JOHNSON: 28

As I keep saying to you,

When we return I expect you to do so.

If you

One is you will be failing to address issues

Secondly, if you continue to waste time

Do you follow that?

I am indebted to Your Honour, I follow the

directions.

29HIS HONOUR:

I cannot give you any stronger advice than that, I

30

suggest that you think hard about that.

31

the last nine days I would suggest wasted the bulk of it

1.CI:CS 12/12/08 2Cressy

FTR:1

114

You have over

DISCUSSION

1

by failing to listen to and follow the admonitions that I

2

have given you, which believe it or not are in your best

3

interests, as well in the interests of this court in

4

completing this case and the interests of all the

5

parties.

6MR JOHNSON:

As Your Honour pleases.

7HIS HONOUR:

Yes, there were some subpoenaed documents

8

yesterday that were released, I think they were to you

9

first Mr Devries.

10MR DEVRIES:

My instructor will deliver them to court by one

11

o'clock, Your Honour, I think they are still being

12

photocopied.

13HIS HONOUR: 14

Yes, well, bear in mind the undertaking given, I

expect documents to come back safely.

15MR DEVRIES:

Absolutely, Your Honour.

16MR JOHNSON:

Thank you, Your Honour.

On a similar note there

17

was an exhibit that I handed up in re-examination that

18

page 2 was missing.

19

it's not signed, it's a filed copy but it has the

20

missing - - -

21HIS HONOUR:

I have the full of that document,

Yes, that's at 58, isn't it, now can you show it

22

to Mr Devries and Ms Sofroniou to ensure that they are

23

content with it.

24

substituted, the existing 58.

25MR JOHNSON: 26

If they are then that can be

This one is unsigned, I guess it would be okay for

me to sign it now.

27HIS HONOUR:

What are you providing?

28MR JOHNSON:

Perhaps it's a second exhibit as it is a file copy

29

rather than a signed original Your Honour.

30MR DEVRIES: 31

The original exhibit missed a second page, Your

Honour, and what Mr Johnson is seeking to do is to

1.CI:CS 12/12/08 2Cressy

FTR:1

115

DISCUSSION

1

provide a complete version of that fax.

2

objection to that.

I have no

3HIS HONOUR:

As a substitute or a - - -

4MR DEVRIES:

As a substitute, Your Honour.

5MR JOHNSON:

As Your Honour pleases.

6HIS HONOUR:

It more affects Ms Sofroniou's client than yours,

7

I think.

8MS SOFRONIOU: 9

Yes, and I understand that it falls under Your

Honour's general ruling in respect of this.

10HIS HONOUR: 11

Yes.

I receive the fax for the communication, not

the - - -

12MS SOFRONIOU: 13HIS HONOUR:

Evidence it's contents. Evidence it's contents.

There was attached to the

14

other exhibit, that is of Mr Anderson and Ms Newcombe.

15

What I think I will do is make this into another exhibit.

16MS SOFRONIOU:

Perhaps 58A, Your Honour.

17HIS HONOUR: Yes, thank you. 18 19#EXHIBIT 58A Complete filed copy of the letter of the 20 defendant to Mr James Turnbull, Berry 21 Family Lawyers, dated 27/03/08. 22MR JOHNSON:

As Your Honour pleases.

Minus the bundle of

23

enclosures.

24

briefing materials for Mr Turnbull, Your Honour.

25HIS HONOUR: 26

It was a welcome letter with a whole lot of

Thank you.

Anything else?

Otherwise we will

adjourn until 9 February.

27ADJOURNED UNTIL MONDAY 9 FEBRUARY 2009

1.CI:CS 12/12/08 2Cressy

FTR:1

116

DISCUSSION