Brothel Gate Day 11

1HIS HONOUR:

Right.

2MS SOFRONIOU: 3

If it please the court Your Honour.

appearing today on behalf of certain subpoenaed parties.

4HIS HONOUR:

Yes.

5MS SOFRONIOU: 6

I am

I notice that the matter has been called as

continuing but in any event today - - -

7HIS HONOUR:

It's really a - it's to hear the application which

8

you have made - or which has been made on behalf of

9

certain subpoenaed parties who set aside some subpoenas.

10

Is that right?

11MS SOFRONIOU: 12HIS HONOUR:

Yes that's so Your Honour.

13

Filed as summonses.

Mr Turnbull you're here for

the plaintiff?

14MR TURNBULL:

Yes.

15HIS HONOUR:

And I see that Mr Johnson is here.

16MR JOHNSON:

Good morning Your Honour.

17HIS HONOUR:

Yes well I'll extract those summonses.

18MS SOFRONIOU: 19HIS HONOUR:

I'm moving on two summonses Your Honour. Two summonses, is that right?

20MS SOFRONIOU: 21HIS HONOUR:

Each dated 3 February 2009. Yes that's right, I have them.

22MS SOFRONIOU:

Thank you Your Honour.

I'm not sure whether

23

Your Honour also has on the court file copies of the

24

subpoenas in issue that are sought to be set aside.

25HIS HONOUR:

Yes I have been able to locate them.

26

sure that I've got them here.

27

addressed to Ms Newcombe - - -

28MS SOFRONIOU:

These are subpoenas

To Mr Richard Anderson - -

29HIS HONOUR:

- - - to Mr Richard Anderson and a - - -

30MS SOFRONIOU: 31HIS HONOUR:

I'll just be

- - - and Mr Colin Twigg. - - - Mr Colin Twigg, they're the three subpoenas

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DISCUSSION

1

are they?

2

them to one side.

3MS SOFRONIOU:

And there are a number of others but I can put

Thank you Your Honour.

I'm not sure whether

4

Your Honour's copy of the subpoenas comes complete with a

5

cover letter, whether that's been filed with the court

6

addressed to the parties subpoenaed or whether Your

7

Honour has only the subpoena - - -

8HIS HONOUR:

No.

9MS SOFRONIOU:

A cover letter from whom?

From Mr Johnson?

From Mr Johnson.

10HIS HONOUR:

No, no I do not have that letter.

11MR JOHNSON:

Excuse me Your Honour, if I can assist.

My

12

affidavit of Tuesday 2 February is in part an affidavit

13

of service and you do Your Honour have copies of all the

14

affidavits - - -

15HIS HONOUR:

Well Mr Johnson - - -

16MR JOHNSON:

- - - Exhibit No.40 Your Honour.

17HIS HONOUR:

Yes well can I say this Mr Johnson, we have

18

received I think what might be described as almost an

19

avalanche of affidavits from you.

20

them because I'm at the moment part heard in a witness

21

action involving issues of credibility and it would be

22

wrong for me to look at affidavits filed in the court by

23

a person who's given evidence before me so that I have

24

not looked at those affidavits at the moment.

25MS SOFRONIOU:

Thank you Your Honour.

I have not looked at

Your Honour the grounds

26

for setting aside this application to set aside the

27

subpoenas is twofold.

28HIS HONOUR:

Now getting back to your question - - -

29MS SOFRONIOU: 30HIS HONOUR: 31

Yes. - - - I have not got a copy of some letter you

refer to.

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DISCUSSION

1MS SOFRONIOU: 2HIS HONOUR:

Yes thank you Your Honour I understand. Yes.

3MS SOFRONIOU: 4

There is a general and a specific ground if I

can put it that way.

5HIS HONOUR:

Yes.

6MS SOFRONIOU:

The general ground arises out of Your Honour's

7

familiarity with the conduct of the proceedings to date

8

where Mr Johnson was good enough to adumbrate before the

9

court his intention to subpoena various parties.

Your

10

Honour might recall that both on the final day of hearing

11

on 12 December and also the day before some part of the

12

court's time was taken up with as it were, discussion I

13

think is the fairest word to do that.

14

given some indicative position and certainly the role of

15

Messrs Colin Twigg and Richard Anderson in terms of being

16

recipients of subpoenas were referred to and I'll take

17

Your Honour to that transcript.

18MR JOHNSON:

Your Honour had

Yes.

19MS SOFRONIOU:

So on a general level I stand here to set the

20

subpoenas aside as a logical step following on from that

21

discussion and I'll take Your Honour to that.

22

specifically, in the case of Ms Newcombe, who is my

23

instructing solicitor in these proceedings from Lander

24

& Rogers, she had not been foreshadowed as the potential

25

recipient of a subpoena.

26

be by the way but - - -

27HIS HONOUR:

More

I'm not saying that she had to

No, I follow.

28MS SOFRONIOU:

- - - I just say that the transcript references

29

won't relate to her and in her case Mr Johnson has set

30

out in a covering letter that accompanies the subpoena to

31

her, the basis on which it's sought so since I've

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DISCUSSION

1

ascertained that Your Honour doesn't have that may I hand

2

up copy of Sutton Lawyers letter to Ms Newcombe dated

3

26 January 2009.

4HIS HONOUR:

Yes thanks Ms Sofroniou.

5MS SOFRONIOU: 6

Once Your Honour has a chance to read that I'll

address Your Honour.

7HIS HONOUR: Yes. 8MS SOFRONIOU: 9

I don't think it's necessary to hand up cover

letters with respect to the other gentleman.

It's

10

sufficient I think to assume that Mr Johnson's intention

11

in subpoenaing those is those that he's indicated in the

12

court to date and I'm certainly proceeding upon that

13

basis.

14HIS HONOUR:

Yes.

15MS SOFRONIOU:

Your Honour we don't accept that the subpoenas

16

were properly served inasmuch as personal service wasn't

17

effected, however I'm instructed to tell the court that

18

we don't rely on that as itself being a ground of setting

19

aside since all of the recipients are officers of the

20

court and certainly adequate notice was given.

21

filed certainly within Your Honour's directions so we

22

make no further point about it.

23HIS HONOUR:

Yes thanks Ms Sofroniou.

24MS SOFRONIOU: 25

They were

Perhaps I can deal with the subpoena to

Ms Newcombe first.

26HIS HONOUR:

That's just to give evidence.

27MS SOFRONIOU:

Is that right?

28HIS HONOUR:

That's to give evidence Your Honour, yes. Yes.

29MS SOFRONIOU:

And at Paragraph 2 of the covering letter I

30

handed up to Your Honour, I'm not sure whether Your

31

Honour needed to mark that in this application or not.

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120

DISCUSSION

1HIS HONOUR:

Perhaps what I'll do is I'll simply mark that as

2

Exhibit A on this application will be the copy letter

3

from Sutton Lawyers to Ms Lisa Newcombe, N-e-w-c-o-m-b-e

4

dated 26 January 2009 together with the attachments to

5 that letter. 6 7#EXHIBIT A Copy letter from Sutton Lawyers to Lisa 8 Newcombe dated 26/01/09 together with 9 attachments to letter. 10MS SOFRONIOU: 11HIS HONOUR:

If it please the court. Yes.

12MS SOFRONIOU:

Having regard to that Exhibit A in this

13

application Your Honour, Paragraph 2 of the letter is

14

where Sutton Lawyers have stated that the basis for the

15

subpoena being issued to Ms Newcombe, is to give evidence

16

in respect of her dealings with Mr Graham Devries,

17

counsel for the plaintiff appearing in these proceedings

18

and/or her dealings with the - I think that says three

19

defendants by a counterclaim in respect of the

20

proceedings.

21

but that on its face, the idea that my instructing

22

solicitor could be required to give to the court evidence

23

in these proceedings relating to Mr Devries who's

24

conducting the proceedings on behalf of another party is

25

not - - -

26HIS HONOUR:

Your Honour I don't have much more to add

Very hard to see the relevance of that to the

27

claim by under Part 9 of the Property Law Act and the

28

four causes of action that have been litigated in the

29

counterclaim.

30MS SOFRONIOU: 31

Thank you Your Honour that's the only submission

I'd seek to make.

32HIS HONOUR:

Yes.

33MS SOFRONIOU: 1.NS:BG 05/02/09 2Cressy

Secondly, inasmuch as they relate to dealings FTR:5-6

121

DISCUSSION

1with the three defendants by counterclaim, I understand that 2

Your Honour wouldn't make in the usual case, a

3

preliminary finding as to potentially privileged

4

questions until they were asked, however in my submission

5

it's an abusive process of the court to require

6

Ms Newcombe to give such evidence in circumstances where

7

no collateral or other issue is arising that could be

8

illuminated by her discussion with them, so first of all

9

it would be privileged, but even before we get to that

10

point, once again it would fall within Your Honour's

11

categorisation as not being germane to the issues.

12

have to confess that it seems such an obvious case that I

13

really can't put anything further to adumbrate it in

14

respect to Ms Newcombe.

15HIS HONOUR:

Well I agree with that.

I

It's certainly the point

16

could be shortly stated and (indistinct) Mr Johnson, by

17

succinct and relevant argument to persuade me that as to

18

why Ms Newcombe's been subpoenaed.

19MS SOFRONIOU: 20

Now would Your Honour prefer to deal with the

subpoena seriatim or - - -

21HIS HONOUR: 22

I think it's - well what do you say - I think it's

probably better to do them one at a time.

23MS SOFRONIOU: 24HIS HONOUR:

Yes.

25

Well it certainly seems to be Ms Newcombe's may be

in a slightly different category to the other two.

26MS SOFRONIOU: 27HIS HONOUR:

Indeed that's what I propose to do.

28

Deal with the Ms Newcombe one and then deal with

the other two together.

29MS SOFRONIOU: 30HIS HONOUR: 31

Thank you. That might be best.

Thanks Ms Sofroniou.

Mr Turnbull, you don't have anything in relation - - -

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DISCUSSION

1MR TURNBULL: 2

for me to say unless you find - - -

3HIS HONOUR: 4MR TURNBULL: 5

No, in fact Your Honour there's probably nothing

No. - - - unless you find after some attraction in Mr

Johnson's argument.

6HIS HONOUR:

Yes or unless there's something that you wish to

7

put forward.

I'll hear from Mr Johnson thanks.

Now

8

Mr Johnson what has been put is that the purpose which

9

you have - for which you have stated you have subpoenaed

10

Ms Newcombe the purposes are both irrelevant and

11

secondly, insofar as you seek to ask - educe evidence

12

from Ms Newcombe in relation to what you call her

13

dealings with the defendants by counterclaim, they being

14

her clients, any such question asked by you would

15

immediately attract the privilege - the legal

16

professional privilege.

17MR JOHNSON:

Your Honour I'm at a few disadvantages.

Firstly I

18

wasn't aware for reasons I hope we don't need to go in

19

to, that this matter was being heard this morning until

20

about quarter past three yesterday afternoon when

21

Mr Richards advised me.

22

paperwork.

23

appeared to be sandwiched with only half an hour from my

24

reading of the list, that was a little confusing.

I've had a quick look at

I looked at the daily list last night and we

25HIS HONOUR:

Well we're not sandwiched.

26MR JOHNSON:

(Indistinct) any appointments - - -

27HIS HONOUR:

We're not sandwiched but the fact is the point

28

seems to be a short point.

29

year about the way you have been using court's time and

30

I'd ask you simply to indicate - you must know why you

31

have subpoenaed Ms Newcombe.

1.NS:BG 05/02/09 2Cressy

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123

I have cautioned you last

Can you explain to the DISCUSSION

1

court what evidence you wish to adduce from her and how

2

it is relevant to this proceeding and in relation to what

3

you seek to ask about her dealings with her clients, why

4

that is not the subject to privilege.

5MR JOHNSON:

I can explain that very simply Your Honour.

6HIS HONOUR:

Good.

7MR JOHNSON:

Your Honour referred constantly during the first

8

nine days of the trial in December to the paucity of the

9

evidence which I take to be a reference to the paucity

10

of the plaintiff's evidence.

There have been three waves

11

of caveats on my properties.

There have been two

12

interlocutory relief applications.

13

representatives ran a whole trial without, I submit,

14

putting any evidence hence your reference to paucity of

15

the evidence.

16

substantial that I had to go to great difficulty to

17

duplicate because large tracks of it were stolen and

18

concealed by the plaintiff which is in my affidavits I've

19

filed this year Your Honour.

The plaintiff's legal

All of my documentary evidence which is

I'll come to it presently.

20HIS HONOUR:

Mr Johnson - - -

21MR JOHNSON:

(Indistinct) that she - - -

22HIS HONOUR:

Mr Johnson, can you direct your mind to the

23

subpoena to Ms Newcombe?

24MR JOHNSON: 25

my affidavit of - - -

26HIS HONOUR: 27

The subpoena to Ms Newcombe, as I say on p.24 of

I have told you, I have not read your affidavit.

It would be wrong for me to read it.

28MR JOHNSON:

I wish to call Lisa Newcombe, Ms Sofroniou's

29

instructing solicitor in these proceedings to give

30

evidence of her participation in the above discussions

31

with myself and Richard Ingleby.

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124

In my haste in DISCUSSION

1

producing with very scant financial resources and serving

2

those subpoenas myself Your Honour, there's some

3

inaccuracies - inaccuracies have crept in to that

4

covering letter.

5

the first practice court hearing which was resumed before

6

Mr Justice Whelan on 19 February I had a discussion with

7

Ms Sofroniou who I'll be asking to step in to the box on

8

Monday to confirm this, and Ms Newcombe, to the effect

9

- this is after we'd been stood down - we had a

10

Now the point I wish to make is that on

discussion at the courtyard.

11

My words were, "Ladies I'm very pleased to meet you.

12

I'm very pleased you're here because it's good that

13

Harwood Andrews are getting independent, competent legal

14

advice because that's something that they can't source

15

in-house".

16

go-get - right - 19 February 2008 and even before the

17

plaintiff's statement of claim was issued in these

18

proceedings Harwood Andrews, my good friends, neighbours

19

and employees for almost a decade Your Honour - taking

20

over a million dollars in fees from me in my government,

21

legal, in-house role annually - solely because of local

22

content requirements thrust on me - they knew right from

23

the go-get this lady was a fraud.

24

counterclaim against them.

25

will take only minutes for Ms Sofroniou and Ms Newcombe

26

to - - -

27HIS HONOUR:

My point is Your Honour that right from the

That ties in to my

It's a very simple point.

It

Well how are they - even if that issue is relevant

28

at this proceeding, that is as to Harwood Andrews'

29

knowledge of Ms Cressy, about which I must say you didn't

30

- you declined to cross-examine Ms Cressy at all - how is

31

Ms Sofroniou or Ms Newcombe relevant to that?

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DISCUSSION

1MR JOHNSON:

Because they can establish from that conversation

2

that certainly there I put Harwood Andrews for the fifth

3

or sixth time on notice that they were dealing with a

4

fraudster.

5

good, sensible, professional - - -

They did not do any of the things that any

6HIS HONOUR:

I don't see the logic - - -

7MR JOHNSON:

- - - would do - - -

8HIS HONOUR:

I don't see the logical connection in that at all.

9MR JOHNSON:

Forgive me Your Honour but if a lady walks in off

10

the street and I'm quoting your words from the morning of

11

12 December last year - makes all these allegations, that

12

could be my claim, my counterclaim - indeed it is

13

- that she was simply a fraudster.

14

There are three waves of caveats of my properties.

15

They're - - -

She has no claim.

16HIS HONOUR:

That is not what I said.

17MR JOHNSON:

- - - (indistinct) applications.

18HIS HONOUR:

That is not what I've said.

19

You've totally

misquoted me - - -

20MR JOHNSON:

No I haven't, you were - - -

21HIS HONOUR:

Twice you've misquoted me this morning.

I'm not

22

going to get in to an argument with you.

23

relevant for you to call Ms Newcombe and Ms Sofroniou?

24

certainly would not permit you to cause mischief to this

25

trial by calling Ms Sofroniou unless there was proper

26

reason shown.

27MR JOHNSON:

Why is it I

On the simple fact that the Harwood Andrews

28

lawyers and the barrister - and I've recounted a

29

conversation with Dr Richard Ingleby on p.23 of my

30

affidavit of Tuesday this week which is the one I

31

referred to the above discussion - - -

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DISCUSSION

1HIS HONOUR:

I haven't read that affidavit and not going to.

2MR JOHNSON:

Your Honour I am severely handicapped if you don't

3

read the affidavit I - - -

4HIS HONOUR:

You tell me - I don't need to read affidavits by

5

you for you to tell me the relevance to the proceedings

6

in this court of the subpoena you have directed to

7

Ms Newcombe.

8MR JOHNSON:

These lawyers were - - -

9HIS HONOUR:

Well the fact is you've introduced yourself on

10

19 March 2008 to Ms Newcombe and said, "I'm glad you're

11

in the proceeding".

12MR JOHNSON:

These lawyers were - - -

13HIS HONOUR:

Is that all you're going to ask her?

14MR JOHNSON:

These lawyers were on notice - - -

15HIS HONOUR:

Just answer my question.

16

so.

Have the courtesy to do

Is that all you're going to ask her?

17MR JOHNSON:

I shall Your Honour but that is - - -

18HIS HONOUR:

How on earth has that got to do with this

19

proceedings?

20MR JOHNSON:

As I've tried to say a number of times Your

21

Honour, excuse me, these lawyers were on notice that they

22

had a fraudster for a client.

23

evidence, even at the conclusion of the plaintiff's

24

case - - -

They had no tangible

25HIS HONOUR:

Well there's a logical purpose in that, but - - -

26MR JOHNSON:

- - - of 4 December.

27HIS HONOUR:

- - - in any event, your attack on Harwood Andrews

28

goes back to the stage does it not, as to the lodging of

29

the caveats which precedes the 19 March 2008 and to the

30

taking by the plaintiff of some documents from the

31

premises at Dorrington Street, which certainly precedes

1.NS:BG 05/02/09 2Cressy

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127

DISCUSSION

1

that date.

2

to Ms Newcombe in March 2008 can bear on that matter.

3MR JOHNSON:

Now I do not see how you introducing yourself

A number of cases including Callanan's case which

4

was the Queensland Supreme Court.

It was White

5

Industries v. Flower and Hart the second case.

6

of cases on malfeasance by barristers and solicitors who

7

referred to Halsbury's Laws of Australia, the very cases

8

that I had allocated today to research up on so I could

9

discuss them with you sensibly next week Your Honour

A number

10

- make it very clear that it is misconduct for a

11

barrister or a solicitor to issue, promote, continue

12

legal proceedings where they know that there is no

13

prospect to the case.

14

lawyer should do when a client walks in =- - -

Now the very first thing that a

15HIS HONOUR:

What legal proceedings are you now talking - - -

16MR JOHNSON:

- - - (indistinct) allegations.

17HIS HONOUR:

What legal proceedings were issued by Harwood

18

Andrews?

19MR JOHNSON:

Proceedings 9665 of 2007 which were (indistinct)

20

Your Honour.

21

it was 6 February 2007.

22HIS HONOUR:

The interlocutory application of - I think

But there's no proceeding against Harwood Andrews

23

or anyone else in this case relating to the issue of

24

these proceedings.

25MR JOHNSON: 26

Your Honour.

27HIS HONOUR: 28

There is my case against them, my counterclaim

Your counterclaim against them, which I reminded

you - - -

29MR JOHNSON:

(Indistinct) to these proceedings.

30HIS HONOUR:

- - - just a month.

31

Do not be rude.

Do not

interrupt, you've told me you know everything about

1.NS:BG 05/02/09 2Cressy

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128

DISCUSSION

1

ethics.

2

white in writing.

3

It does not relate to the issue you've just adumbrated.

4MR JOHNSON:

Your counterclaim is contained in black and It sets out the four causes of action.

Forgive me Your Honour it does and my counterclaim

5

is in writing, unlike the statement of claim which was

6

orally amended in my cross-examination by Mr Devries

7

several days after having made a formal, written

8

amendment to the statement of claim on the morning that

9

they closed the case.

10HIS HONOUR: 11

Well at the moment, you have not persuaded me has

the subpoena to Ms Newcombe - - -

12MR JOHNSON:

I can not - - -

13HIS HONOUR:

- - - can relate to any relevant issue.

14MR JOHNSON:

I cannot persuade you Your Honour while you shut

15

your eyes and you shut out my affidavit of 18 January,

16

sorry my affidavit of 16 January this year.

17

last year about huge tracks of documents - original

18

contracts that the plaintiff stole.

19

Three bags full Your Honour.

20HIS HONOUR:

When did you recover them.

21MR JOHNSON:

On Boxing Day.

22

We talked

I recovered them.

I went to my vacant house.

It's

all in my affidavit - - -

23HIS HONOUR:

So you've got - all right well let's get on to

24

something relevant.

You've found further documents

25

relevant to this proceeding, have you?

26MR JOHNSON:

Absolutely Your Honour.

27HIS HONOUR:

Well that's got nothing to do with Ms Newcombe but

28

if they are relevant when the trial resumes on 9 February

29

subject to what I hear from the other side, if those

30

documents are relevant I'll permit you to put them before

31

the court by way of admissible evidence.

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129

DISCUSSION

1MR JOHNSON: 2

I'm grateful Your Honour.

I'm not sure on - do I

need to go back in go the box?

3HIS HONOUR:

Well we'll work that out on Monday but what I'd

4

suggest you do in the meantime is indicate to your

5

opponents the documents that you have found and as to

6

what they are so that they're not taken by surprise by

7

them and so that - it may even be that they might be able

8

to be tendered by consent.

9

strayed from Ms Newcombe.

I do not know but we have now I'm unpersuaded by you that

10

what you foreshadowed is relevant.

11

Ms Sofroniou as to what I want to do about that.

12MS SOFRONIOU:

I'll hear from

13HIS HONOUR:

Yes Your Honour. Ms Sofroniou, it's unusual to set aside a subpoena

14

on that basis.

15

subpoenas ad duces tecum.

16

a subpoena - the appropriate way generally is for the

17

witness to be subpoenaed, questions asked if they're

18

relevant you object as I expect you will and I've already

19

warned Mr Johnson to be bringing Ms Newcombe to court to

20

ask irrelevant question which not only would no doubt

21

- may lead to repercussions in terms of costs, but could

22

be deemed to be an abuse of the process of this court.

23

Now Mr Johnson's on warning in relation to that.

24MS SOFRONIOU:

One certainly sets aside plenty of I'd be reluctant to set aside

It's a high call in some respect Your Honour and

25

the application to set aside isn't generally made because

26

of that ground.

27

application and say that the matter does fall on the line

28

in this case is twofold.

29

because the grounds I had understood Mr Johnson to be

30

relying on in fact I had taken from his letter that I've

31

handed up.

1.NS:BG 05/02/09 2Cressy

The reason that we have made the

FTR:5-6

First, I should apologise

130

DISCUSSION

1HIS HONOUR:

Yes.

2MS SOFRONIOU:

He's actually raised a different issue.

I

3

understood what Mr Johnson has just said to be that the

4

desirability was that the court hear evidence from Ms

5

Newcombe, and indeed from myself, that Mr Johnson had

6

been claiming that Ms Cressy's case was a fraudulent one.

7HIS HONOUR:

I don't think he's even gone that far.

All he's

8

said is he's going to call evidence from you and from Ms

9

Newcombe to say he's very glad the two of you are in the

10

proceeding, at least someone's now got an independent

11

mind to bear on this.

12MS SOFRONIOU:

because they couldn't do it themselves.

I don't

13

know if this gives Mr Johnson any comfort, he's been

14

making that protest in writing in this - Your Honour has

15

heard that, we in the court room have heard that.

16

know that he is maintaining that that is his point of

17

view.

18

reason for the subpoena Your Honour can set that aside on

19

the basis that it isn't in fact going to anything in

20

issue or of interest to the court.

We

If that's the case Your Honour - and if that's the

21HIS HONOUR:

Or of relevance.

22MS SOFRONIOU:

It's not a matter for evidence in other words.

23

Mr Johnson may make a submission that he doesn't believe

24

the plaintiff has any ultra vires, if this is in fact

25

what it's really going to and he has done so - - -

26HIS HONOUR:

That the plaintiff has any - sorry?

27MS SOFRONIOU:

Sorry Your Honour, no bona fides - I'm getting

28

my Latin confused - there's no bona fides in her claim.

29

If that's the case it is only a matter of submission.

30

course it will be decided upon real and admissible

31

evidence.

1.NS:BG 05/02/09 2Cressy

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If we are meant to have been over-hearers of FTR:5-6

131

DISCUSSION

1

him maintaining that view to Dr Ingleby - well Your

2

Honour has heard him maintaining that view - - -

3HIS HONOUR:

In 2008.

4MS SOFRONIOU: 5HIS HONOUR:

- - - in 2008.

6

It won't - - -

Doesn't advance the case any more than as you say

- I've heads that protest in court.

7MS SOFRONIOU:

Yes and I think that that probably puts this in

8

to a category of subpoena that doesn't even address

9

evidence at all and that's what makes a difference and

10

that it should be set aside.

11HIS HONOUR:

Yes I agree.

12MS SOFRONIOU:

It would almost be as if Mr Johnson were

13

requiring evidence to prove some totally collateral

14

point.

15

in any event he's covered by his own submissions that he

16

will be making.

17

It won't in fact even play a role in his case and

In my submission, that is what - especially in light

18

of the time this trial has already taken and the manner

19

in which the trial is run.

20

be here if required, but it actually is a nonsense to

21

even go through the process, and my submission is that

22

the court process shouldn't be put to that use,

23

especially when no unfairness will result, because if

24

Mr Johnson wants to tell the court that he expressed that

25

view to Dr Ingleby, Your Honour may reject it as relevant

26

or irrelevant, but the idea that someone overheard that

27

won't assist him or yourself.

28HIS HONOUR:

Ms Newcombe, of course, can

Yes, I follow that.

29MS SOFRONIOU:

So on that basis, I do press for this less usual

30

course to be taken with respect to Ms Newcombe's

31

affidavit.

1.NS:BG 05/02/09 2Cressy

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DISCUSSION

1HIS HONOUR:

Yes, thanks, Ms Sofroniou.

2MR JOHNSON:

Your Honour, may I reply briefly?

3HIS HONOUR:

You may respond since you've answered, but you can

4

have a very short response.

5MR JOHNSON:

Thank you, Your Honour.

My learned friend is very

6

good but she's missing my point.

My point is that at

7

which stage in this trial process were Harwood Andrews or

8

a reasonable, competent and ethical law firm put on

9

notice that they should do some investigations of - - -

10HIS HONOUR:

What trial process - - -

11MR JOHNSON:

(Indistinct).

12HIS HONOUR:

What trial process are you talking about?

13MR JOHNSON:

The issue of maintenance of the proceedings in the

14

Titles Offices, the caveats, the issue and the

15

maintenance of these proceedings - - -

16HIS HONOUR: 17

There were no proceedings in the Titles

Office - - -

18MR JOHNSON:

Your Honour - - -

19HIS HONOUR:

Just a moment.

You're just misleading me.

There

20

was a caveat in the Titles Office, and that was lodged

21

back in 2007.

22

2008.

23MR JOHNSON:

You're referring to a conversation in

Your Honour, early 2008 midway, after the first

24

wave of caveats before the 2nd and before the 3rd.

The

25

simple point is at what point in this process would a

26

reasonable, intelligent lawyer request of the plaintiff

27

making the - the client making well and substantiated

28

allegations and substantiation.

29

birth certificates, request bank statements, tax returns,

30

receipts.

31

court.

Look at her children's

Your Honour, none of that was presented in

I had to go to a lot of trouble back to my

1.NS:BG 05/02/09 2Cressy

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133

DISCUSSION

1

mortgage brokers and my banks and my tax agents to

2

duplicate things that the plaintiff stole from me.

3

had no such impediment.

4

material, how could they claim to be responsible,

5

reasonable, sensible lawyers between them, these two law

6

firms.

7

leave applications with an affidavit stating that she's

8

penniless and can't pay lawyers, let alone give

9

undertakings to damages, and run a whole trial without

She

Why did they not produce that

Three raised a caveat, two wanted (indistinct)

10

any tangible evidence, just wild, unsubstantial

11

allegations - - -

12HIS HONOUR:

Thank you, Mr Johnson.

13MS SOFRONIOU:

Your Honour, I may be able to shorten this.

I

14

can tell the court that on coming into a case and reading

15

the pleadings, that is not the case that has been

16

prepared before Your Honour on this counterclaim.

17

lest Mr Johnson jump up and down and protest that, it

18

would appear that Mr Johnson has seen fit to start

19

alternative proceedings that are not before Your Honour,

20

and there's a familiar ring of some of the statements

21

he's making here that are set out in that.

22HIS HONOUR: 23

Now,

The point he is making to me is totally irrelevant

to these proceedings.

24MS SOFRONIOU:

And I can tell Mr Johnson now through Your

25

Honour, if Your Honour would permit it, that this is not

26

within the scope of the applications or basis on which

27

this case on this counterclaim has been argued.

28

wants to try to raise the matters he just has before Your

29

Honour in another place, then presumably in another place

30

and another time, there can be responses made to that.

31

But I, for one, have not prepared or - - -

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134

If he

DISCUSSION

1HIS HONOUR:

Well, they're not pleaded.

I have, time and

2

again, stated this case is run on the pleadings.

3

Ms Sofroniou.

Thanks,

4(RULING FOLLOWS) 5

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DISCUSSION

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 1.NS:BG 05/02/09 2Cressy

FTR:5-6

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RULING

1 2 3 4 5 6

- - -

7

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RULING

1MS SOFRONIOU: 2

If it please the court.

We would seek the costs

to follow the event in that regard, Your Honour.

3HIS HONOUR:

Yes.

4MS SOFRONIOU:

But one aspect I should draw Your Honour's

5

attention to in the summons relating to Ms Newcombe is

6

Paragraph 2.

7

that Your Honour would not wish that wording, that - - -

8HIS HONOUR:

Sorry, where's this?

9MS SOFRONIOU:

The summons to set aside - - -

10HIS HONOUR:

I'm sorry, the summons.

11MS SOFRONIOU: 12

If Your Honour has that handy, it may be

We've sought two orders, Your Honour.

One to

set aside the subpoena which Your Honour has done.

13HIS HONOUR:

Yes.

14MS SOFRONIOU:

Secondly, although it states that the plaintiff

15

by counterclaim pay Lander & Rogers and Ms Newcombe's

16

costs, my submission is that the proper order would not

17

include the firm.

18HIS HONOUR:

No, I agree with that.

19MS SOFRONIOU:

It is only Ms Newcombe whom I represent, and

20

it's her costs and the basis for that is just for costs

21

following the event in the normal course.

22HIS HONOUR:

Yes, I'll order that the plaintiff by

23

counterclaim, Mr Johnson, pay the costs of the

24

application by Ms Newcombe to set aside the subpoena.

25MS SOFRONIOU:

If it please the court, Your Honour.

That

26

brings us to the next two - the next summons, Your

27

Honour, which is addressed in relation to the subpoenas

28

to both Mr Twigg and Mr Anderson.

29HIS HONOUR:

Yes.

30MS SOFRONIOU: 31

In order to assess whether this subpoena should

be set aside, it is effectively the same grounds,

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138

DISCUSSION

1

different particulars, namely that the evidence that

2

these gentlemen will give will not go to a fact in issue

3

before Your Honour, and therefore is vexatious and

4

oppressive for that reason.

5

been minded to, as it were, wait and see to allow the

6

witnesses to be called and the process gone through, I

7

think it appropriate to draw Your Honour's attention to

8

the transcript discussion that did occur last year.

9

not sure - - -

10HIS HONOUR:

However, had Your Honour

I'm

So you seek to set aside these in their totality?

11MS SOFRONIOU: 12HIS HONOUR:

Yes. To give evidence and also to produce documents?

13MS SOFRONIOU:

And to produce the documents.

14

Honour.

I'm not sure whether Your Honour has transcript

15

handy?

16HIS HONOUR:

That's so, Your

Of which day was it?

17MS SOFRONIOU:

Of - it would be part of 11 December and of

18

12 December.

19

convenient just to take it up from 12 December, Your

20

Honour, the final day, so 1068 onward, if that's

21

convenient.

22

Honour, there was a witness that Mr Johnson was to call,

23

a Mr Peter Cockram.

24HIS HONOUR:

From p.1062 onward.

It's probably actually

At this stage of the proceedings, Your

Yes.

25MS SOFRONIOU:

And Your Honour had, at that stage, been

26

assessing the future case management of the matter with

27

the view that an adjournment was inevitable and that we'd

28

be resuming in February.

29

case, and I had already put to Your Honour quite openly

30

that in my view this was a tactic, as it were, although

31

borne perhaps of anxiety rather than - I'm not implying

1.NS:BG 05/02/09 2Cressy

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Mr Johnson had not closed his

139

DISCUSSION

1

any dishonesty in that regard, but that it was an issue

2

before Your Honour as to when the case would be closed.

3

In my submission, Your Honour has been scrupulously more

4

than fair and just in permitting Mr Johnson to raise any

5

further evidence, any other evidence, and that's - - -

6HIS HONOUR: 7

Yes.

on - - -

8MS SOFRONIOU: 9

I didn't force him to close his case

Not in the least.

However, the other side of

that balance for the rest of the parties who, as it were,

10

would be roped in at Mr Johnson's mercy, waiting for him

11

to close, we didn't have any say in it, of course.

12HIS HONOUR:

No.

13MS SOFRONIOU:

We didn't have any control over it, Your Honour

14

didn't push him to close quite appropriately, with

15

respect, but Your Honour did say in order to still manage

16

the case, would Mr Johnson outline then what his plans

17

were, which subpoenas he was planning to issue - - -

18HIS HONOUR:

Who he was going to call and the like.

19MS SOFRONIOU:

Yes.

Now, in my submission the reason I've gone

20

into all of that is to say that that must have been for

21

some purpose.

22

that if Mr Johnson decides he wants to keep calling

23

witnesses, which is no doubt his democratic right,

24

nonetheless, the other parties have rights too, and that

25

Your Honour had agreed with an approach that said that in

26

order to do so, Mr Johnson was to give an indication as

27

to what the subpoenas were going to so that Your Honour

28

could be sure that Your Honour wasn't being, as it were,

29

part of this idea that the case never closes.

30HIS HONOUR: 31

Now, the management of the case is such

I recollect having a discussion with Mr Johnson.

I think there were about two - there were a number of

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140

DISCUSSION

1

witnesses foreshadowed.

2

no relevance and I think there were two or three which

3

seemed to me may have gone to some relevant issues.

4MS SOFRONIOU:

That's right.

In receipt of them I could see

Having stated that generally,

5

Your Honour, Mr Anderson and Mr Nelson were in fact

6

- Mr Johnson was good enough to identify those.

7HIS HONOUR:

Yes.

8MS SOFRONIOU: 9

And they were referred to at 1070 of the

transcript.

10HIS HONOUR:

If Your Honour has it - - -

Yes.

11MS SOFRONIOU:

- - - Your Honour sees around Line 20 and

12

Your Honour had asked Mr Johnson, "What do you wish to

13

subpoena Mr Anderson for?"

14

Honour, in case my fellow parties don't have this before

15

them.

16HIS HONOUR:

I'm reading this, Your

Yes.

17MS SOFRONIOU:

Mr Johnson said, "They are relevant to the

18

second and third defendants by counterclaim's arguments

19

as foreshadowed of a no case action.

20

my credibility and the suggestion that there's been some

21

sort of bullying or on a (indistinct) type."

22

page, Your Honour had explained in response to that at

23

1071 that the questions that had been put to Mr Johnson

24

about threatening action against Harwood Andrews were

25

not, at Line 9, "I do not see how Richard Anderson or

26

Warwick Nelson could give evidence in relation to that.

27

Secondly, the matter's simply put as to your credit so

28

that it's a collateral issue on which extrinsic evidence

29

is not admission."

30

- eight, I think it is.

31

Also the issue of

Over the

Your Honour had taken the view by 107

Sorry Your Honour 1078 of the transcript they were

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DISCUSSION

1

mentioned again at Line 24.

"Richard Anderson and

2

Warwick Nelson" - Your Honour said, "In relation to what

3

some of the materials that are in exhibit has been

4

correspondence passing between myself and those" and then

5

the transcript is indistinct.

6

documents are in".

7

sending and receipting, not as to the contents" and Your

8

Honour explained again that the contents speak for

9

themselves and at 1079, Line 9, "I don't see any

Your Honour said, "Those

Mr Johnson said, "Yes but only as to

10

relevance in" I think that should read Mr Anderson Your

11

Honour rather than Henderson, "Or Mr Nelson."

12

of all of this discussion was at 1109 of the transcript

13

Your Honour.

14

The upshot

At Line 21 Mr Johnson said, 'Where we will go from

15

here is that I will issue a subpoena for those of Ms

16

Cressy's solicitors who have sworn affidavits in support

17

of her proceedings."

18

you issue subpoenas which are an abuse of a process of

19

this court" and then at Line 30, "Then you will be liable

20

for the costs of that on an indemnity basis so that you

21

should bear in mind the helpful remarks I have advanced

22

to you today concerning my view as to the potential

23

relevance because firstly if they are an abuse of the

24

process I would set them aside and order for costs as it

25

usually occurs" sorry Your Honour, "And order costs as it

26

usually occurs.

27

a threat but as a fair warning."

28

need to go in to ulterior purpose issues for this

29

application.

30

in reading out all of that is to say that there has been

31

an attempt to contain the management of this case, both

1.NS:BG 05/02/09 2Cressy

Your Honour said, "Mr Johnson, if

Given that ... (reads) ...

say that as

Now Your Honour I don't

The reason I've taken up the court's time

FTR:5-6

142

DISCUSSION

1

in fairness to Mr Johnson there were some proposed

2

subpoenas that Your Honour had in fact taken a different

3

view about that they could be relevant so it's not as

4

though Your Honour has been shutting anyone down.

5

only step that the other parties are able to take where

6

Mr Johnson, nonetheless decides that it's as though Your

7

Honour never said a word about Mr Nelson and Mr Anderson,

8

he's going to go ahead and do it anyway, then all that

9

remains for the - for my side to do is to seek to set

10

them aside because if that doesn't happen and they're

11

called in anyway and they go in to the box anyway and

12

there is nothing that has been indicated that it would go

13

to any relevant matter on the counterclaim then that is

14

going to subvert the purpose of trying to manage the

15

proceedings.

16

anything that in any event could be relevant.

17HIS HONOUR: 18

Mr Anderson.

Is that right?

No it's Mr Anderson and Mr Twigg.

20HIS HONOUR:

Mr Twigg, yes.

21MS SOFRONIOU:

Yes that's right.

Mr Twigg falls within the

category of solicitors who have sworn affidavits.

23HIS HONOUR: 24

That then raises the question well is there

Well Mr Nelson has not been subpoenaed, just

19MS SOFRONIOU:

22

The

Who is Mr Twigg?

Is he a member of Harwood

Andrews?

25MS SOFRONIOU:

Yes he is and he falls in the category - I

26

should have made it explicit Your Honour that the portion

27

I read at 1109.

28

Cressy's solicitors who have sworn affidavits in support

29

of her proceedings in interlocutory steps in the court."

30

That's my fault Your Honour, I should have said that

31

covers him.

1.NS:BG 05/02/09 2Cressy

"I will issue a subpoena for those of Ms

Your Honour has said it's not relevant and FTR:5-6

143

DISCUSSION

1

that Your Honour doesn't see the issue, subject to what

2

Mr Johnson says now.

3

the subpoenas rather than go through the motion anyway,

4

then it means that this attempt at management will fail.

5

We're nonetheless dragged in to wait for it.

6

If Your Honour doesn't set aside

I wouldn't normally even make the application but

7

for the fact that Mr Johnson takes the view that despite

8

Your Honour's telling him in many ways now that he is

9

confined to the counterclaim as written and that this is

10

the counterclaim that's been prepared before Your Honour

11

and that any complaint he has about Harwood Andrews in

12

these other matters might have to await another day, he

13

has nonetheless decided, it seems, to ignore all that and

14

to proceed and to use these proceedings in that way.

15

my submission Your Honour, Your Honour can only deal with

16

this by setting aside the subpoenas with my submission

17

that that won't cause Mr Johnson any unfairness in the

18

running of this case at all.

19HIS HONOUR:

Thanks Ms Sofroniou.

In

Those are my submissions. Mr Johnson, going one at a

20

time, what is the - what do you seek to adduce in terms

21

of evidence from Mr Anderson?

22MR JOHNSON:

It is the simple fact that Richard should have

23

known immediately I spoke with him - him knowing me and

24

being as I said, my friend, neighbour and employee for

25

pretty much a decade - that I am on the level and that

26

his firm's client - it's very shaded that they took

27

instructions from her in the first place, given my

28

relationship with the firm - was a fraudster.

29

on notice of fraud and therefore when it comes to issues

30

of costs, (indistinct) principles, let alone damages,

31

which may need to be taken at - - -

1.NS:BG 05/02/09 2Cressy

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144

They were

DISCUSSION

1HIS HONOUR:

What was she - - -

2MR JOHNSON:

(Indistinct) - - -

3HIS HONOUR:

Mr Anderson wasn't the person acting for Ms Cressy

4

was he?

5MR JOHNSON:

Richard is - - -

6HIS HONOUR:

Mr Hanlon is the man about - against whom you made

7

the allegations.

8MR JOHNSON:

Yes Hanlon the employee - - -

9HIS HONOUR:

And the allegation against Mr Hanlon is he

10

shouldn't have lodged the two caveats.

11MR JOHNSON:

The allegation is that immediately I contacted him

12

with tangible evidence that his client was a fraud, he

13

should have - he should have dealt with it differently.

14HIS HONOUR:

You contacted who - Mr Anderson?

15MR JOHNSON:

Mr Hanlon to begin with.

16HIS HONOUR:

Well no, we're just relating at the moment to

17

There was - - -

Mr Anderson - what's he got to do with all this?

18MR JOHNSON:

Mr Anderson as I said is my friend, neighbour and

19

employee for pretty much a decade, also chairman of the

20

firm.

21

partner is deemed to know what the employee does, are in

22

joint (indistinct) liability - - -

23HIS HONOUR: 24

Now I believe the firm is simply a firm.

The

So because Mr Anderson knows you and knows you're

a good person, means that if - - -

25MR JOHNSON:

And they've got crazy allegations - - -

26HIS HONOUR:

Means that if someone makes a Part 9 application

27

against you or actually in fact simply claims an

28

entitlement under a constructive trust, that has to be a

29

fraud.

30

that's the basis upon you wish to seek to call Mr

31

Anderson, that he's known you over these years?

Seems to me to be a logical casus in that but

1.NS:BG 05/02/09 2Cressy

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DISCUSSION

1MR JOHNSON:

And it is on the point on Callanan's principles in

2

this instance that a lawyer should, even without being

3

tipped off by someone that he's known well for a decade,

4

should make some sensible inquiries as to claims put by a

5

client.

6

look at birth certificates, titles, offers, (indistinct)

7

statements, receipts, you don't go throwing caveats

8

willy-nilly, that's a contravention of statute of frauds,

9

Charter of Human Rights and Responsibilities Act.

They should look for hard evidence.

At least

You

10

don't do that based on what someone walks in off the

11

street and says Your Honour.

12

behaved that way.

13

forensic, show me the evidence.

14HIS HONOUR: 15

Imagine if every lawyer

Didn't go out and do the proper

It was Mr Hanlon who lodged the caveats

was it not?

16MR JOHNSON:

Mr Hanlon lodged the caveat for Ms Cressy.

17HIS HONOUR:

What's Mr Anderson got to do with that?

18MR JOHNSON:

Mr Anderson as chairman I think is the gentleman

19

who the buck stops here in the firm.

He is legally

20

liable for the actions of his employee.

Mr Hanlon - - -

21HIS HONOUR:

Well if Mr Anderson was handling - - -

22MR JOHNSON:

- - - (indistinct) of his own Your Honour.

23HIS HONOUR:

Was Mr Hanlon a partner or an employee?

24MR JOHNSON:

He's the chairman.

25HIS HONOUR:

Mr Hanlon?

26MR JOHNSON:

They have a corporate structure which may or

27

may not - - -

28HIS HONOUR:

Mr Hanlon?

29MR JOHNSON:

Hanlon is an employee Your Honour.

30HIS HONOUR:

Employee.

31MS SOFRONIOU: 1.NS:BG 05/02/09 2Cressy

He's an employee Your Honour. FTR:5-6

146

DISCUSSION

1HIS HONOUR:

Right.

2MS SOFRONIOU: 3HIS HONOUR:

But that's his evidence Your Honour - - If you're basing some liability of Harwood Andrews

4

of which Mr Anderson's a partner under vicarious

5

liability then you don't need to call Mr Anderson.

6MR JOHNSON: 7

It is on the point of at what point in this

horrible - - -

8HIS HONOUR:

It's irrelevant.

9MR JOHNSON:

- - - process were they or a reasonable law firm

10

on notice that they - they certainly had no evidence.

11

There was a paucity of evidence.

12

unsubstantial allegations by this young lady.

13

didn't do - they didn't do any homework Your Honour.

14

Three wave of caveats during 2007 and up to August 2008.

15HIS HONOUR:

There were wild, They

So what are you going to ask - not the precise

16

questions, but what are the topics on which you ask all

17

the questions of Mr Anderson?

18MR JOHNSON: 19

"When did you or anyone in your firm first

identify that this lady was a fraud" Your Honour.

20HIS HONOUR:

You're going to ask him that?

21MR JOHNSON:

I will start with the question based on s.92 of

22

the constitution.

23

to Ms Cressy have you ever had any trade, commerce or

24

intercourse with any other prostitutes."

25

opening question Your Honour.

26HIS HONOUR: 27

I'll be asking Mr Hanlon this.

Well I would not permit that.

"Prior

That will be my

I'd rule that that

was a scandalous question and could - - -

28MR JOHNSON:

Well s.92 of the constitution - Federal

29

Constitution - it's not a scandalous document Your

30

Honour.

31HIS HONOUR:

Mr Johnson you are - as I've remarked before - a

1.NS:BG 05/02/09 2Cressy

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147

DISCUSSION

1

very intelligent man.

You've deliberately misconstrued

2

that.

3

to me to be an entirely question.

4

it will be overruled.

The reference to Ms Cressy's occupation - it seems You ask that question

Mr Anderson - - -

5MR JOHNSON:

Your Honour may I say - - -

6HIS HONOUR:

Mr Johnson use your intelligence and try and

7

direct - you say that Mr Anderson had some knowledge that

8

the plaintiff's claim that was asserted under the caveat

9

was not a bona fide client.

10MR JOHNSON:

Is that what you're saying?

I was in shock that my good friends, neighbours

11

and employees were issuing proceedings on behalf of this

12

woman against me, given her colourful background, to use

13

a non scandalous language.

14HIS HONOUR:

Well Mr Johnson - - -

15MR JOHNSON:

Given her colourful background (indistinct) had to

16

do with this.

17HIS HONOUR: 18

Mr Johnson you're talking me out of permitting you

to call - - -

19MR JOHNSON:

Well I don't want to do that Your Honour.

20HIS HONOUR:

- - - Mr Anderson.

You're doing - actually as a

21

devil's advocate I couldn't see one do a better job.

22

you're able to indicate - - -

If

23MR JOHNSON:

May I - thank you Your Honour.

24HIS HONOUR:

- - - a broad topic, I'm loathe to shut you out

25

from calling Mr Anderson in advance and that's why I'm

26

trying to assist you by getting you to direct your mind

27

to a topic which might have some sort of relevance to

28

this case.

29MR JOHNSON:

May I ask that - - -

30HIS HONOUR:

If you don't want that assistance I'll just site

31

here mute and then just strike out the subpoena.

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DISCUSSION

1MR JOHNSON:

No we need not do that Your Honour.

May I ask

2

Ms Sofroniou to hand up as additional exhibits B and C I

3

guess my facsimile letters of service to Mr Anderson and

4

to Mr Twigg or they're all locked up in Exhibit 42.

5

don't have copies I'm afraid.

6

facsimile.

7HIS HONOUR:

I

I have served them by

Yes I received these letters.

What I need to know

8

is, is there going to be a worthwhile purpose relevant to

9

these proceedings in you calling Mr Anderson to give

10

evidence?

11

concerning his previous knowledge of you.

12MR JOHNSON:

You say you wish to ask him the questions Is that right?

"At what point was your firm or anyone in your

13

firm put on notice that your plaintiff's claim was

14

fraudulent?"

15

independent investigates of statutory records".

16

you have asked her for third party tangible evidence to

17

substantiate her claims?"

18HIS HONOUR: 19

"At what point should you have done some "Should

Well I don't see much relevance in that.

(Indistinct) Ms Sofroniou you're - - -

20MR JOHNSON:

Your Honour - - -

21HIS HONOUR:

Just a moment - I'm disinclined to, at this stage,

22

rule out the subpoena because Mr Anderson was a

23

correspondent with you in this matter.

24

warning that you will need to direct your mind to asking

25

relevant, admissible questions.

26

year, for a person who says he's never practised in court

27

before, when you apply a mind to it and you know that it

28

assists your case, you're very good at adhering to the

29

rules of evidence and relevance, but when you wish to

30

seize control of this case and derail it, you also have a

31

peculiarly good confidence in doing that.

1.NS:BG 05/02/09 2Cressy

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149

I put you on fair

As I have remarked last

Now if you try DISCUSSION

1

to go down that course you'll get very short shrift from

2

me, but if you wish to ask Mr Anderson relevant

3

admissible questions, I would not at this stage be

4

inclined to shut you out from doing so by setting aside

5

that part of the subpoena that requires him to give

6

evidence.

7

that point of view.

I suggest you don't try to persuade me out of

8MR JOHNSON:

Thank you Your Honour, I'm indebted Your Honour.

9HIS HONOUR:

All right now Ms Sofroniou - - -

10MR JOHNSON:

But may I please hand up the full exhibit?

11

is my facsimile.

12

Richard's office.

13

me because he was on his way up to a meeting.

This

I physically served the documents at He wasn't able to come out and greet

14HIS HONOUR:

Yes well I received that partly I think.

15MR JOHNSON:

This is the only copy I have.

You do have a copy

16

I handed to Mr Richards yesterday afternoon Your Honour.

17

I would need this back if - - -

18HIS HONOUR:

What is this?

Is this a letter is it?

19MR JOHNSON:

Yes it's the letter of service that corresponded

20

to Exhibit A of Ms Sofroniou's but as well as sending,

21

because I wanted to make sure that the - particularly the

22

people whose hands I didn't shake.

23HIS HONOUR:

Well you'd better be carefully in handing it to

24

me, you don't talk me out of the view I've just

25

expressed.

26

(indistinct) - - -

27MR JOHNSON:

It's up to you.

I'll receive it but be it

It's in your hands already Your Honour.

28HIS HONOUR: All right, it is now. 29 30#EXHIBIT B Copy letter of Sutton Lawyers to Richard 31 Anderson dated 26/01/09 with attachment. 32HIS HONOUR:

Yes.

1.NS:BG 05/02/09 2Cressy

I don't see how that advances the case, but FTR:5-6

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DISCUSSION

1

as I said, I will not strike out that part of the

2

subpoena to Mr Anderson.

3

disinclined to do that.

4MS SOFRONIOU:

I'll hear for myself, and I'm

And I note that's the intention that Your Honour

5

- there are two things that I'd seek to put in response

6

to that is that this - there is no indication that

7

Mr Anderson has had any involvement in these proceedings

8

whatsoever.

9

that he's based in Geelong.

10

No evidence has been given to the contrary.

The

only evidence given so far - - -

13MS SOFRONIOU:

Indeed.

14HIS HONOUR: 15

He's one of the litigation

lawyers but - - -

11HIS HONOUR: 12

I can tell Your Honour from the Bar table

- - - by Mr Johnson is that he said that they

corresponded with each other.

16MS SOFRONIOU:

There are two - and I understand Your Honour

17

wouldn't prejudge that, but the two matters I raise that

18

do warrant the striking out of the subpoena, one is that

19

the issue of the Cressy caveats plays no part in the

20

counterclaim before Your Honour as against my clients.

21

Your Honour will recall that the allegation made against

22

Mr Hanlon, that the firm Harwood Andrews is that they

23

wrongfully placed the Harwood Andrews caveat, and so

24

inasmuch as that's got anything to do with their conduct

25

in relation to the other caveats, it's just not in the

26

counterclaim as it relates to my clients.

27HIS HONOUR:

I suppose it could be said though that the Harwood

28

Andrews' caveat was postulated on an interest asserted by

29

Ms Cressy, because what she purported to do was charge

30

her equitable interest in the property to Harwood

31

Andrews, and it was that charge that was sought to be

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DISCUSSION

1

protected by the Harwood Andrews caveat.

2MS SOFRONIOU:

However, it's not being stated that the basis of

3

any misfeasance, this almost Star Chamber investigation

4

that Mr Johnson now ceases to run, he's pulling himself

5

up by his bootstraps, asking the question, "What

6

investigations did you do?

7

make", is not something that any party is entitled to

8

have a witness come along to be interrogated at the whim

9

of the questioner.

What types of steps did you

I was going to say no lawyer would

10

reasonably do such a thing, use the court's coercive

11

processes to have called someone whose steps he doesn't

12

like, have to be justified before a court, so if it were

13

a clear argument on the counterclaim, I could understand

14

it.

15

insufficient research, enquiry and investigation and the

16

rest of it.

Not only is it not raised that they have done

17

Mr Johnson goes one further, and this really does

18

smack of something quite serious.

19

submitting that people friendly toward him have done

20

something legally wrong by having the temerity to issue

21

proceedings against him.

22

Mr Johnson right now that signing Bar roles, signing

23

legal professional roles of any kind puts a

24

responsibility on advocates, on litigators, on lawyers of

25

all kinds, on judges, to act without fear or favour,

26

without compunction, without any kind of favouritism and

27

people can do things that may offend their friends if

28

they are within the bounds of the law.

29HIS HONOUR:

He seems to be

Stopping there, I can tell

Well, you're bound by your instructions, you're

30

only - and that's really what you're putting, is that if

31

Ms Cressy went to Harwood Andrews and gave them

1.NS:BG 05/02/09 2Cressy

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152

DISCUSSION

1

instructions which gave rise to an arguable case for the

2

constructive trust, then they were bound by those

3

instructions.

4

that rule, of course, is where, particularly on a

5

pleading or indeed in correspondence, allegations of

6

fraud, malice, misconduct or criminality are made, then

7

the rules of ethics binding barristers and solicitors

8

forbid a barrister or solicitor to make that allegation

9

without cogent evidence.

10MS SOFRONIOU:

The one exception or ethical exception to

And Mr Johnson can't have it in reverse, that

11

because he doesn't like - that his apparent friends about

12

which I make no admission, Your Honour, are taking this

13

step, therefore they must be fraudulent, and Your Honour

14

I'd like to draw a distinction in this regard between the

15

firm that may have a liability if the claim goes against

16

it and the individuals for whom I appear who are

17

subpoenaed as individuals to give evidence before the

18

court, there is no evidence that Mr Anderson has played a

19

role.

20

approval make himself accountable to court process and be

21

questioned because Mr Johnson can't swallow that someone

22

who knows him in a favourable light would dare to have

23

his firm issue proceedings is an outrageous - in fact, I

24

could probably go further, but won't.

25

Why he should come along and with the court's

It certainly cannot be used ad valorem when you're

26

effectively offended by your acquaintance's actions

27

toward you, and in my submission, this court can't

28

contemplate any of that.

29

had been some evidence educed by Mr Johnson that there

30

was some kind of fraud of the manner that he's adumbrated

31

now to Your Honour, but he has repeatedly said to this

1.NS:BG 05/02/09 2Cressy

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It would be different if there

153

DISCUSSION

1

court in the hearing so far that he does not say that

2

Mr Hanlon had actual notice of malfeasance.

3

cross-examine - - -

4HIS HONOUR:

He didn't

Yes, he - - -

5MS SOFRONIOU: 6HIS HONOUR:

- - - Ms Cressy in that - - - - - 12 December - - -

7MS SOFRONIOU:

And he said that in fact he was, if anything, a

8

reluctant cross claimant, so we're miles away from any

9

kind of legitimate fraud enquiry.

It hasn't been pleaded

10

that way.

It's been quite clearly Mr Hanlon's conduct

11

and even that, as Your Honour says, has been retreated

12

from.

13

requirement to have Mr Anderson before him is what he

14

said to Your Honour quite squarely.

The engine that seems to be firing Mr Johnson's

15HIS HONOUR:

Yes, I have noticed now and you've drawn my

16

attention to it, Paragraph 22 refers to the conduct of

17

Hanlon.

18MS SOFRONIOU: 19HIS HONOUR:

Yes, Your Honour. And nothing to do with Anderson at all.

20MS SOFRONIOU:

No.

Whatever the firm's liability may be, it

21

doesn't affect his requirement to be brought to give

22

evidence before Your Honour.

23HIS HONOUR:

Yes, I follow that.

24MS SOFRONIOU: 25

And in my submission, this is dangerous and

distasteful use of a subpoena in fact, Your Honour.

26HIS HONOUR:

Mr Johnson?

27MR JOHNSON:

Thank you, Your Honour.

Ms Sofroniou, I think,

28

has done it, but if I could - we've just spent many

29

minutes totally mis-describing my counterclaim against

30

Harwood Andrews.

31

put Richard in the witness box because he was my friend

1.NS:BG 05/02/09 2Cressy

I'm not saying, Your Honour, I want to

FTR:5-6

154

DISCUSSION

1

and he's been mean to me.

2

I'm saying is that this law firm - and it's the words,

3

just the words a reasonable arguable case, Your Honour.

4

How could any law firm form the view, given what you

5

refer to constantly on these nine days in December as the

6

paucity of - - -

7HIS HONOUR: 8

Not at all, not at all.

What

Can I just put that furphy to rest at the moment?

I've heard you misquote me a number of times - - -

9MR JOHNSON: 10HIS HONOUR:

The paucity - the evidence - - Would you be quiet a moment and let me complete

11

just for once.

12

solicitor or barrister admitted to practice as you have.

13

The paucity of evidence I refer to constantly directed to

14

Mr Devries related to the current status of the property.

15

In other words, which ones have been sold, which ones

16

were subject to mortgagee sales, and the amount of debts

17

outstanding.

18

has confronted this case.

19

I have, on a number of occasions, said there was a

20

paucity.

21

those - the formal documents which in fact your witness

22

was good enough to produce a number, but particularly

23

what their current status is because in fact there are

24

quite detailed evidence as to this background of this

25

case which I have part heard and listened to, and let's

26

get back onto the point.

27

you read your counterclaim, it alleges that either the

28

plaintiff or Hanlon procured Harwood Andrews to

29

fraudulently and maliciously execute and lodge that

30

caveat.

31MR JOHNSON:

I have never been so interrupted by a

That has been the difficulty, I think, that That is the evidence to which

That is relating to the documents pertaining to

The fact of the matter is if

It has got nothing to do with Anderson at all. You're wrong, Your Honour.

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155

I would have thought DISCUSSION

1

the chairman of the firm is the (indistinct) of the firm,

2

is the firm.

3

fact that they did all of these things, three rounds of

4

caveats, two rounds of interlocutory relief applications,

5

so you run a whole case without getting any tangible

6

evidence to substantiate the plaintiff's wild and, as it

7

turns out, unsubstantiated allegations.

8

into my office and says, "I'm a de facto of Mr Justice

9

Kaye."

10

The fraud and the malice comes from the

That he walks

I say, "All right, I'll take your answer", I say,

"Where's your evidence?"

11HIS HONOUR:

The solicitor is bound by his or her instructions.

12MR JOHNSON:

But not to become - - -

13HIS HONOUR:

Just a moment, Mr Johnson.

Is there any authority

14

you called here to the contrary.

15

stand in judgment of your client.

16

corruption of the legal system, because I have said there

17

is without an important ethical exception where, for

18

example, you allege that people act fraudulently,

19

maliciously or criminally and that is where you are not

20

simply bound by an instructor, but you must seek

21

evidence.

22

caveat is simply was based on a claim by Harwood Andrews

23

for - under a charge executed by Ms Cressy, and the

24

charge has been tendered to me, that charge being

25

postulated on a claim by Ms Cressy to a constructive

26

trust.

27MR JOHNSON:

You're not allowed to That would be a

No such allegation is made in the caveat.

The

Your Honour, this woman walks in off the street

28

and says, "I contributed to the purchase, maintenance and

29

improvement of these properties", verbal.

30

unsubstantiated allegation.

31

"Well, OK, show me the receipts, show me the title

1.NS:BG 05/02/09 2Cressy

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156

It's a wild,

The solicitor surely says,

DISCUSSION

1

documents.

2

hard evidence because I'm a professional man, I can't

3

become the unwitting dupe and an instrument of a

4

trickster.

5

need to have evidence on which to run three rounds of

6

caveats, two rounds of interlocutory relief applications

7

in the Supreme Court, and run a Supreme Court trial."

8MS SOFRONIOU: 9 10

I can give you professional services, but I

Your Honour, if I may in response to that, if

such a conversation does or doesn't take place, it's a privileged conversation to start with.

11HIS HONOUR:

Yes.

12MS SOFRONIOU:

And secondly, Mr Anderson is not that man.

13HIS HONOUR:

I agree.

14MS SOFRONIOU: 15

Show me your tax returns, and show me the

Mr Johnson is confusing the idea of legal

liability and evidence under subpoena.

16HIS HONOUR:

I agree with that.

17MR JOHNSON:

Your Honour, it's a very scary thought that anyone

18

can walk into any solicitor's office and the solicitors

19

can collectively run up 300 grand worth of recorded legal

20

fees for only 300 hard cash down, and can do the things

21

such as what Ms Cressy has done with no hard evidence,

22

even their fishing trip subpoenas at my banks didn't turn

23

up anything to support that case.

24

They simply had no evidence to justify any of the things

25

that they did, and the fraud comes up because of the lack

26

of due diligence on the part of this so called

27

professional.

28

legal proceedings in the Titles Office three times over

29

in the Supreme Court, three times over on the basis of

30

what this woman said, no matter how lovely she might look

31

and how lovely she might speak.

1.NS:BG 05/02/09 2Cressy

Quite the contrary.

You can't just go and launch all these

FTR:5-6

157

You've got to have some DISCUSSION

1

real tangible evidence to hang onto, and certainly before

2

you go throwing 300 grand of clocked up time and only

3

requiring $3000 down, which is the affidavit I want to

4

question Mr Colin Twigg on, because when I - - -

5HIS HONOUR: 6

Never mind about Mr Twigg yet.

Is that all you

wish to say about Mr Anderson?

7MR JOHNSON:

I would like, Your Honour, because I have – in my

8

affidavits of 16 January this year and 2 February this

9

year, I have done a very good job that the Attorney

10

General under his model litigation rules would be very

11

proud of, I think and I hope I'm not taking this - - -

12HIS HONOUR: 13

All I'm asking you at the moment, I'm not

interested in what the Attorney General believes - - -

14MR JOHNSON:

Your Honour, it's set out - - -

15HIS HONOUR:

All I've asked you is to adumbrate to me the

16

evidence you seek to adduce from Mr Anderson who

17

(indistinct) reminded myself of the allegations and the

18

counter claim and her submissions from Ms Sofroniou would

19

seem to be irrelevant as a witness in relation to the

20

counter claim or the response to the plaintiff's claim.

21MR JOHNSON:

Your Honour, if I may answer, I will read from

22

p.24 of my affidavit of 2 February where I outline this

23

to my colleagues at the Bar table and it's in evidence

24

Your Honour.

25

understand it and I - - -

It's an open model litigation process as I

26HIS HONOUR:

Just read it.

27MR JOHNSON:

I wish to call Richard Anderson, Chairman of

28

Harwood Andrews Lawyers to give evidence in these

29

proceedings.

30

known me on a first name relationship with me, with me as

31

in-house senior legal counsel for Barwon Regional Water

1.NS:BG 05/02/09 2Cressy

I wish Richard to give evidence of his

FTR:5-6

158

DISCUSSION

1

Corporation and Richard Anderson and Harwood Andrews

2

receiving over a million dollars annual in legal fees for

3

services that are provided to the authority as my

4

external legal counsel.

5

of my attempts during 2000 and 2008 to explain to David

6

William Hanlon and to him the extent of the plaintiff's

7

treachery and fraud, (as clearly demonstrated by the

8

written materials exhibited to my affidavit of 16 January

9

2009), there's other exhibit material to this affidavit,

I wish Richard to give evidence

10

Exhibit 39.

11

misconduct by David William Hanlon in issuing land titles

12

office and in issuing Supreme Court Proceedings against

13

me and in maintaining those actions against me.

14

Richard to give evidence of the extent of credit given by

15

that firm to the plaintiff without which he would not

16

have been able to issue or continue these fraudulent and

17

damaging claims against me.

18

But they don't mention that there.

And the

I wish

Your Honour, may I say that given the case is

19

presented by the plaintiff, I don't know how you could

20

conceivably find in her favour – that gives you judgment

21

in my favour against a plaintiff who's got nothing but

22

the charity, whatever residue of my charity over the last

23

nine years.

24

legal costs.

25

makes it a thousand times nastier that what was taken

26

issue with in time - - -

27HIS HONOUR: 28

That's the nasty element of the scam that

You're now debating the obvious – you're now

debating the case itself.

29MR JOHNSON: 30

She can't pay compensation, she can't pay my

I don't know how not to, Your Honour.

It's that

level of - - -

31HIS HONOUR:

Because all I've asked you is the relevance of

1.NS:BG 05/02/09 2Cressy

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DISCUSSION

1

Mr Anderson, you've read me your affidavit, thank you,

2

Mr Johnson.

3(RULING FOLLOWS) 4

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DISCUSSION

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 1.:RC 05/02/09 2Cressy

FTR:11-12

161

RULING

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 1.:RC 05/02/09 2Cressy

FTR:11-12

162

RULING

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

- - -

25

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163

RULING

1MS SOFRONIOU: 2

Your Honour, could I then please – may it please

the court.

3HIS HONOUR: 4MS SOFRONIOU:

Yes.

5

Could I then turn to the document production

aspect of the – of the subpoena?

6HIS HONOUR: 7MS SOFRONIOU:

Yes. The schedule refers to an attached list which

8

Your Honour should find as the fifth page of the subpoena

9

to Mr Anderson.

10HIS HONOUR: 11

If Your Honour has that - - -

List of documents and things for production.

Richard Peter Anderson.

12MS SOFRONIOU:

Thank you Your Honour.

The first – in my

13

submission is a pointless exercise, Paragraphs 1 and 2,

14

because it requests correspondence received by Harwood

15

Andrews from Mr Johnson himself.

16HIS HONOUR: 17

And - - -

Yes, a number of those letters have already been

tendered in evidence.

18MS SOFRONIOU:

They have, there's nothing to suppose that the

19

court would be benefited by having correspondence that

20

Mr Johnson himself has sent coming from Mr Anderson.

21HIS HONOUR: 22MS SOFRONIOU:

No, I agree with that. Secondly the correspondence is sent by Harwood

23

Andrews to Mr Johnson.

24

running any case that Mr Johnson did or didn't receive

25

correspondence from it, so the cost involved in dragging

26

that out, why Mr Anderson is the recipient of this when

27

he's got no involvement in the file as far as we know,

28

makes it a futile request.

29

arising supposing that the production of those documents

30

at this stage, would – would benefit the parties or the

31

court.

1.:RC 05/02/09 2Cressy

Again Harwood Andrews is not

There hasn't been an issue

Thirdly, Your Honour, I don't mean to be wilfully FTR:11-12

164

DISCUSSION

1

misunderstanding Mr Johnson, but any attempt in

2

Paragraph 3 of this subpoena to be implying that the fact

3

that Harwood Andrews has provided legal services to

4

Barwon Region Water Corporation might in any way play a

5

part as to any matter relevant before this court.

6

irrelevant and it could even be worse than that.

7

doesn't matter how many millions of dollars may or may

8

not be done, between a lawyer and a client, that doesn't

9

– and won't have it said against this firm that that

It's It

10

would unduly influence them prejudice them or anything

11

like that at all.

12

of conflict - - -

13HIS HONOUR: 14

There's no question relevant question

It's not only not relevant, and I agree with that.

But there affects some issues of privilege in that - - -

15MS SOFRONIOU:

Indeed and the idea that it's even of relevance

16

at all, is potentially a distasteful proposition.

17

four and five, affidavits sworn or affirmed are not

18

evidence before the court unless they are filed and

19

accepted and if they are filed then they're with the

20

court file.

21HIS HONOUR:

As to

I agree with that, but it's in this case, I mean

22

(a) Mr Johnson presumably has got the affidavits if he

23

hasn't got some of them, he could have a request to have

24

a copy made from any that are on the court file.

25MS SOFRONIOU: 26

So it's not for Mr Anderson to have to produce

them.

27HIS HONOUR: 28MS SOFRONIOU:

No, I agree with that.

29HIS HONOUR:

So in my submission - - And the same would apply to the Magistrates'

30

Court.

31

proceeding in which Mr Johnson's a party?

1.:RC 05/02/09 2Cressy

I take it they are the Federal Magistrates' Court

FTR:11-12

165

DISCUSSION

1MS SOFRONIOU: 2HIS HONOUR:

I presume that's the case, Your Honour. I'll ask him what that proceeding is but if that's

3

right, he's a party in that.

4

anyway.

5MS SOFRONIOU:

He'd have the affidavits

So in my submission it would be inappropriate to

6

require Mr Anderson to produce any of these documents in

7

my submission Your Honour.

8HIS HONOUR: 9

Thanks Ms Sofroniou.

Mr Johnson, you've got all

those letters, and if you going to call one and two, why

10

do you need to subpoena the letters, you've already

11

tendered a number of them.

12

yourself and Howard Andrews, haven't you got them all?

13MR JOHNSON:

The correspondence between

Your Honour, the simple fact is that the Harwood

14

Andrews lawyers had a fraudster for a client, a person of

15

great credibility and long standing acquaintance with

16

that - - -

17HIS HONOUR:

Can I just say this.

I think you should be very

18

careful using terms in the Bar table such as fraudster, I

19

just caution you for your own good.

20MR JOHNSON:

I have evidence Your Honour.

You have evidence.

21HIS HONOUR:

Well, I think you should be very careful, you can

22

do what you like, but if you do that, you are simply

23

putting yourself in further jeopardy.

Proceed - - -

24MR JOHNSON:

May I refer - - -

25HIS HONOUR:

Why do you need to subpoena the letters in

26

Paragraphs 1 and 2 of your subpoena?

27MR JOHNSON:

I repeat my last statement, Your Honour.

28HIS HONOUR:

But why do you need them?

29

them?

You are a party to that correspondence.

30

has taken the best evidence rule on that, you've been

31

permitted to tender copies, you don't need the originals.

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166

You've already got No one

DISCUSSION

1

What is the purpose of seeking Mr Anderson to bring to

2

court - - -

3MR JOHNSON:

If I may – look, this is throwing me a bit of a

4

curve ball, but for example, the Federal Magistrates'

5

Court's documents, I supposedly am at risk of three years

6

imprisonment or a $25,000 fine if I tender any Federal

7

Magistrates' Court material to you.

8

Federal Magistrate Damien O'Dwyer which we discussed at

9

the very outset.

10HIS HONOUR:

The orders of

But subpoenaing you won't – won't – if you're

11

right on that, subpoenaing those documents won't

12

assist you?

13MR JOHNSON:

I'm not producing them if they're subpoenaed.

14HIS HONOUR:

But if they're subpoenaed they don't become

15

evidence.

16

think you misconceive what a subpoena in due case

17

(indistinct) is.

18

the court.

19

and usually when a document is tendered to court, the

20

party who has issued the subpoena, sorry – has been

21

produced on a subpoena, then the party that issued the

22

subpoena seeks release of that document for it's

23

inspection and then they decide whether they wish to

24

tender their document in evidence.

25

actually – if you have that apprehension, that won't kill

26

your problem.

27MR JOHNSON:

They just simply be produced to the court.

I

That's simply to bring the documents to

That does not have them tendered in evidence

So it doesn't

Your Honour, it's very difficult for me to address

28

you when you have not reviewed my affidavits of 16

29

January or 2 February.

30

stolen off my that I recovered Boxing Day last year, I

31

also uncovered, I think it was 14 pages, of Ms Chrissy's

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As well as the stolen documents,

167

DISCUSSION

1

– a little bit fictional, but there's a lot of factual in

2

there, memoirs she started writing and amongst other

3

things like calling herself a beautiful liar, she totally

4

contradicts everything that she said in the box.

5HIS HONOUR:

Well, that may or may not be so - - -

6MR JOHNSON:

My – my statement that she's - - -

7HIS HONOUR:

- - - but what's that got to do – we're just at

8

the moment focussing on the subpoena.

9MR JOHNSON:

Your Honour, it frightens me that there seems to

10

be a suggestion that lawyers can just jot down and act on

11

their clients instructions without having to bring - - -

12HIS HONOUR:

No, you are deliberately evading the point.

13MR JOHNSON:

The subpoena is to cause my friend Richard to

14

address his mind to these sorts of things.

15HIS HONOUR:

Well, I have already struck out the subpoena on

16

that basis, that it's an abuse of process.

17

part of the subpoena that requires him to come to court

18

and give evidence - - -

19MR JOHNSON:

Your Honour - - -

20HIS HONOUR:

- - - just a moment.

Now, that's a

21We are now addressing the part of the subpoena that requires 22

you to bring to this court and produce to the court when

23

the subpoena is called five categories of documents.

24

That will not make them evidence, that simply, physically

25

gets them in to court.

26

this matter sequentially do you need to subpoena to this

27

court correspondences between yourself and Harwood

28

Andrews?

29

You've in fact tendered a lot of it.

30MR JOHNSON: 31

Now I've asked you why working

You've got the copies of the correspondence.

I don't have all of these documents.

You're

talking a specific category in that list - - -

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DISCUSSION

1HIS HONOUR:

I'm looking at firstly the Categories 1 and 2.

2MR JOHNSON:

I've given you my only copy of the document Your

3

Honour.

4

don't have a copy.

5HIS HONOUR:

You have two copies before you I believe.

6

You have not got a copy of some of the document

you've tendered.

7MR JOHNSON: 8

I don't have a copy of the document you're looking

at Your Honour, with the list of documents.

9HIS HONOUR:

Well this is your subpoena.

10MR JOHNSON:

Yes, yes I gave you my only copy.

11HIS HONOUR:

I'll return for the time being a copy of

12

that - - -

13MR JOHNSON:

You have your own copy of the file I trust Your

14

Honour.

15

have handed to - - -

You also have your own copy in the materials I

16HIS HONOUR: 17

I

Well there you are, you can have that back for the

time being.

18MR JOHNSON:

I am a little confused Your Honour and - - -

19HIS HONOUR:

Yes well look at - - -

20MR JOHNSON:

- - - second page because I think - - -

21HIS HONOUR:

Well let's - look we're at the moment debating the

22

subpoena which you have served on Mr Richard Anderson.

23

Now that subpoena in fact is for a dual purpose.

24

to give evidence and to the extent that it requires

25

Mr Anderson to come to court to give evidence I have set

26

the subpoena aside but it also requires Mr Anderson to

27

produce documents set out in your schedule.

28

follow?

29

to court, that simply requires a person to answer that

30

subpoena, come to the fore of the court and produce

31

certain categories of documents to the court.

1.:RC 05/02/09 2Cressy

One is

Do you

Now when you issue a subpoena to bring documents

FTR:11-12

169

They are DISCUSSION

1

listed in Categories 1-5 of your list there.

2

still intending to call Mr Anderson - or require

3

Mr Anderson to bring all those five categories of

4

documents to this court?

5MR JOHNSON:

Are you

Your Honour if Richard isn't going to be in the

6

box to discuss them with me I don't see the point in

7

bringing them.

8

are at the margins of relevance Your Honour.

9

fact is if I may go back to the first and second

They are - except what - which is - these The simple

10

category, the first and second items.

11

that these people were on inquiry.

12

itself, that they didn't do any independent investigate.

13HIS HONOUR:

That's my point

The matter speaks for

Well you've tendered letters already.

Well you

14

don't intend - you're not intending to call the subpoena

15

so far as it requires Mr Anderson to bring five

16

categories of documents to the court?

17MR JOHNSON:

Your Honour I think if it's shut out in the first

18

part it's shut out in the second part and perhaps to be

19

reviewed upstairs.

20HIS HONOUR:

Well excellent.

So what I will do therefore is I

21

will set aside the subpoena in its entirety.

22

move next - thank you Mr Johnson.

23MS SOFRONIOU: 24

Now we'll

And Your Honour will make a costs following the

event order in - - -

25HIS HONOUR: 26MS SOFRONIOU:

In relation to that so I will - - I'm sorry Your Honour I'm - thank you.

The

27

position with respect to Mr Twigg's subpoena Your Honour

28

is there's nothing further that I can add in advance.

29

I've taken Your Honour I think to the transcript

30

references where Mr Twigg had been foreshadowed as having

31

been a solicitor who swore an interlocutory affidavit in

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170

DISCUSSION

1

these proceedings.

2HIS HONOUR:

That's at Transcript 1073, Line 2.

3MS SOFRONIOU:

Line? Line 2.

Mr Twigg's mentioned where Your Honour

4

had asked about subpoenas and Mr Johnson was saying the

5

solicitors, David Hanlon and Colin Twigg and former

6

solicitor (indistinct) swore affidavits to support her

7

case particularly interlocutory proceedings, they should

8

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

9

affidavits.

As I understand it, subject to what Mr

10

Johnson says it again doesn't go to and in fact an issue,

11

there's no issue of Mr Twigg's interaction with Harwood

12

Andrews' caveats or anything that could give rise to a

13

cogent issue in these proceedings Your Honour.

14HIS HONOUR:

(Indistinct) did Mr Twigg (indistinct)?

15MR JOHNSON:

Your Honour may I firstly say that Ms Sofroniou

16

was taking a very narrow interpretation of my pleadings

17

which I've said all along we never finalised and that's

18

something that I guess may need to be reviewed upstairs

19

or beyond.

20

responsible for Ms Cressy's file at Harwood Andrews.

21

name is on a little bit of correspondence I believe that

22

emanated from Harwood Andrews when they had carriage of

23

the matter.

24

task of any independent investigate or verification of

25

the plaintiff's wild and unsubstantiated claims

26

presumably his supervisor should have given him some

27

instruction and training in direction to do so.

28

Honour I shake, I quiver, I am appalled at the suggestion

29

that a professional man should just do whatever his

30

unprofessional client tells - non professional client

31

tells him, without bearing any independent line of

1.:RC 05/02/09 2Cressy

Mr Twigg is relevant because he's the partner His

Presumably if Mr Hanlon wasn't up to the

FTR:11-12

171

Your

DISCUSSION

1

investigates.

2

Australia to say that's a no-no.

3

There are paragraphs in Halsby's Laws of

Every ethics book I've look at says it's a no-no.

4

don't have an ethics book.

5

Honour.

6

manipulated as a dupe of your client.

7

protect yourself from your client No.1, you've got to

8

investigate their claims before you go rushing off and

9

issuing titles office proceedings three times four,

I have an ethics library Your

You can't become - allow yourself to be You've got to

10

Supreme Court proceedings three times over Your Honour.

11

I'm really frightened by what I heard in court this

12

morning.

13

- all professions to do that, that's really scary.

If it's OK for a professional - a lawyer of all

14HIS HONOUR:

Yes thanks Mr Johnson.

15MR JOHNSON:

Thank you Your Honour.

16MS SOFRONIOU:

Your Honour inasmuch as that relayed to handling

17

of matters generally I think again that probably falls

18

within the attempted umbrella of Mr Johnson's other

19

proceedings.

20HIS HONOUR: 21

Well it certainly doesn't fall within this

proceeding.

22MS SOFRONIOU: 23

I

I'm not sure if there's anything more I can

usefully add - - -

24(RULING FOLLOWS) 25

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172

DISCUSSION

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20

- - -

21

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173

RULING

1MS SOFRONIOU:

If it please Your Honour.

Does Your Honour need

2

to hear subsections as to documents for production in

3

relation to Mr Twigg's - - -

4HIS HONOUR: 5

Well I would have expected the same response would

be received of Mr Johnson.

6MR JOHNSON:

Mr Twigg is a little bit different Your Honour.

7

should have read from p.25 of my affidavit of 2 February

8

of this year.

9HIS HONOUR: 10

Were you asking - you wish him to bring those

documents to court do you?

11MR JOHNSON: 12

I actually have the affidavit where - and this

comes to a number of points I've raised which - - -

13HIS HONOUR:

I have struck out the subpoena relating to

14

Mr Twigg so far as your requiring him to give evidence.

15

Dou require him nonetheless to attend at this court to

16

produce - physically produce to this court - the

17

categories of documents set out in the list of documents

18

which was attached to that subpoena.

19MR JOHNSON:

I wish to have the document in Item No.2 in

20

evidence in court and I have actually done that.

21

exhibited as part of - I think it's Exhibit 40 to my

22

affidavit of - - -

23HIS HONOUR:

It's

No it's not an exhibit in this court, but by

24

subpoenaing it, it would not make it an exhibit to the

25

court in any event, as I have - - -

26MR JOHNSON:

Your Honour this - - -

27HIS HONOUR:

I have very carefully explained to you this

28

I

morning.

29MR JOHNSON:

I'm not sure I need the repeated explanation Your

30

Honour.

I think it might be at cross purposes.

31

affidavit of 2 February 2009 there are a number of

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174

In my

DISCUSSION

1

exhibits.

2

Mr Turnbull on my left and also an affidavit by Mr Twigg

3

that's set out and there's a whole lot of time sheets.

4

Some of them are defamatory of me unnecessarily.

5

pointing out that the (indistinct) substantial amount and

6

my guesstimate on that which is the only evidence I have

7

is about $300,000 for all of these actions that she and

8

her lawyers have maintained - - -

9HIS HONOUR:

Exhibit 40 includes an affidavit by

I'm

Well you've got a copy of that affidavit do you?

10MR JOHNSON:

You have a copy as well Your Honour.

11HIS HONOUR:

No, I'm not reading it.

12MR JOHNSON:

Well I don't know - - -

13HIS HONOUR:

It's not evidence in the case yet.

If you wish to

14

get that affidavit put in evidence in this case then you

15

need - - -

16MR JOHNSON:

I wish the subpoena to stand on Point 2.

17HIS HONOUR:

I'd like to be able to complete one sentence.

If

18

you wish that affidavit of Mr Twigg to be tendered in

19

evidence in this case, then you may apply to do that on

20

Monday when the trial or the case resumes.

21

is - today - is whether I should set aside the subpoena.

22

If you've already got a copy of that affidavit, why do

23

you have to subpoena it out of Mr Twigg?

24MR JOHNSON:

The question

Your Honour I do wish to question Mr Twigg about

25

that affidavit when the trial resumes.

I believe,

26

although I've not been introduced to him, he's in court

27

once again today and was the most of December during the

28

hearing.

29

I'm in Your Honour's hands whether that means that the

30

subpoena must stand for that to happen or whether we can

31

rely on the copy that I've exhibited as part of Exhibit

I do wish to discuss that affidavit with him.

1.NS:JAG 05/02/09 2Cressy

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175

DISCUSSION

1

40 to my affidavit this - - -

2HIS HONOUR:

I have said yet again and I'll repeat it yet

3

again, that affidavit is not yet an exhibit in this

4

proceeding.

5MR JOHNSON:

Now is that all you have to put Mr Johnson?

Your Honour that affidavit outlines my submissions

6

and I've done, I believe what the Attorney General's

7

department calls a model litigator process in outlining

8

to the other lawyers involved in presenting materials to

9

you, what the rest of my case will be when we resume on

10

Monday.

11HIS HONOUR:

Thank you Mr Johnson.

12MR JOHNSON:

Thank you Your Honour.

13HIS HONOUR:

Yes well nothing Mr Johnson has advanced has

14

persuaded me out of the view I've already taken, that is

15

that the affidavit - that Mr Twigg would be irrelevant in

16

any evidence that was sought to be adduced - I'll put

17

that again.

18

Twigg would be irrelevant.

19

the need to - for Mr Twigg to answer that part of the

20

subpoena relating to the documents.

21MS SOFRONIOU:

Any evidence sought to be adduced from Mr He has not persuaded me as to

Thank you Your Honour.

I was going to say, for

22

the comfort of the court in that regard, Harwood Andrews

23

have not retained the file in fact, that say Paragraph 3

24

goes to, it's with the current lawyers so there is in any

25

event, nothing that could be produced by Mr Twigg.

26HIS HONOUR:

Yes thank you, so those documents would be of no

27

assistance at all in the proceeding, indeed it seems the

28

document he's most anxious to have put before this court

29

is one that he already has, that is an affidavit sworn in

30

the Federal. Court proceeding.

31

admissible or whether it is tendered in evidence in this

1.NS:JAG 05/02/09 2Cressy

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Whether that document is

DISCUSSION

1

case is a matter for the - for decision and debate when

2

the trial of this action resumes on Monday next, on 9

3

February.

4

addressed to Mr Twigg on the basis as I've already

5

outlined.

6

costs that Mr Twigg of his application set it aside.

7MS SOFRONIOU:

Accordingly I shall set aside the subpoena

I order that the defendant Mr Johnson, pay the

May it please the court Your Honour, that's the

8

close of the application in respect of the subpoenas to

9

the parties whom I represent.

I understand that this

10

maybe a subcategory of other subpoenas that have in fact

11

been issued before the court.

12

responding in court for that on Monday or today, I'm

13

unaware of.

14HIS HONOUR:

Whether there are people

15MS SOFRONIOU:

I see.

16HIS HONOUR:

I'm unaware of any return date. I see, yes, I'd noticed there are a number of

17

other subpoenas, thanks for drawing that to my attention.

18

Now Ms Sofroniou, I understand you have a bit of

19

difficulty, you can still - you stand or sit.

20MS SOFRONIOU: 21HIS HONOUR:

I apologise Your Honour for the embarrassment. Ms Sofroniou, we have a judge in this court who

22

has to stand all the time, from time to time I find I

23

have to do it too, it's a lawyer and judges' problem.

24

feel free to do whichever you wish.

25MS SOFRONIOU: 26HIS HONOUR:

So

Thank you very much. Now I see a gentleman at the back, I was going to

27

say is there anyone else here to answer subpoenas today

28

or to make applications in respect thereof.

29MR OVER:

Your Honour, my name is Mr Over and I appear - - -

30HIS HONOUR: 31MR OVER:

Mr?

Over, O-v-e-r, I'm briefed by the Legal Services

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177

DISCUSSION

1

Commissioner who's also subject to a subpoena.

2

wish to bring the application today but to give notice

3

both to the court and also to Mr Johnson that on Monday

4

an application will be made to set aside the subpoena

5

against the Legal Services Commissioner on the basis that

6

it's an abuse of process, vexatious and oppressive and

7

that there will be an application seeking the costs.

8

the event that the application succeeds, the Legal

9

Services Commissioner will seek from Mr Johnson the costs

10

I don't

In

of setting aside the subpoena.

11HIS HONOUR:

Yes, well thank you very much for bringing that to

12

my attention Mr Over, that's of assistance and no doubt

13

Mr Johnson will think very carefully about it.

14

Mr Johnson, you've heard from Mr Over, now I suggest that

15

you give very careful thought as to whether you wish to

16

call the row of subpoenas, all of them that you have

17

issued. There maybe some that are relevant but bear in

18

mind as you understand it, I'm running this case pursuant

19

only to relevant issues as set out in the pleadings.

20

Whether you like that or not that is the way a common law

21

court proceeds and will always proceed.

22

Now if the matters are irrelevant, if you seek to

23

adduce from the Legal Services Commissioner are

24

irrelevant to that then you should quickly withdraw the

25

subpoenas so you simply don't put yourself through the

26

process of having it struck out, and also you won't have

27

to be subject to an order for costs.

28

in your hands but pay very careful attention to that.

29

All right?

I will leave that

30

Now the other matter that you've drawn to my

31

attention is apparently you've unearthed some more

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DISCUSSION

1

documents over the summer break.

2MR JOHNSON:

Yes Your Honour.

3HIS HONOUR:

As I said to you before I think it would assist

4

the disposition of this case if you could draw those to

5

the attention of the other parties so that there isn't an

6

untoward delay in having them photocopied and the parties

7

read them before you seek to tender them in evidence on

8

Monday.

Do you follow?

9MR JOHNSON: 10

I did that 18 days ago Your Honour and you have an

affidavit - - -

11HIS HONOUR: 12

Yes, well if you could have some sets available to

what - - -

13MR JOHNSON:

- - - available to Your Honour.

14HIS HONOUR:

Yes but I won't look at them because they're not

15

in evidence yet but I suggest if you would, you draw them

16

to the attention of the other parties so they have an

17

idea what they are.

18

week.

19

anyone else here to answer subpoenas or raise subpoenas?

Is there any other matter today, there isn't

20MS SOFRONIOU:

No thank you.

21HIS HONOUR: 22

I wish to complete this case next

If there's any application to set aside subpoenas

I will hear it first thing on Monday Mr Over.

23MR OVER:

Thank you Your Honour.

24HIS HONOUR:

I've been reminded, thanks.

Exhibit 46 in this

25

proceeding was a Medicare card that was tendered by

26

Mr Johnson.

27

because it's still a current card back so he could use it

28

for medical treatment and without consulting the parties

29

I permitted that to occur and a photocopy has been

30

substituted as the exhibit.

31MS SOFRONIOU:

Yesterday Mr Johnson sought that card

Thank you Your Honour, from our part we would

1.NS:JAG 05/02/09 2Cressy

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179

DISCUSSION

1

have made no objection in any event.

2HIS HONOUR: 3

No thanks Ms Sofroniou, and I take it there's no

difficulty with that Mr Turnbull?

4MR TURNBULL: 5HIS HONOUR:

No there isn't, thank you Your Honour. Mr Richards was good enough to make a colour

6

photograph and to attend to the return of that item to

7

Mr Johnson for his use, so Exhibit 46 will now be a

8

photocopy of the Medicare card.

9MR JOHNSON:

Excuse me Your Honour, I will return it on Monday

10

because the age of the card is quite important in

11

the - - -

12HIS HONOUR: 13

entitled to do that.

14MR JOHNSON: 15

You wish that still to be the exhibit, you're

Yes, I'm in the process of getting a new card

issued, thank you.

16HIS HONOUR:

Right.

Monday at 10.30 thanks.

17ADJOURNED UNTIL MONDAY 9 FEBRUARY 2009

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DISCUSSION