Brothel Gate Day 12 Full Day

1MR DEVRIES:

The matter is still proceeding Your Honour.

2HIS HONOUR:

Thank you Mr Devries.

We seem to have in court a

3

large number of people and I have on the court file a

4

large number of subpoenas that have subpoenaed to the

5

court by Mr Johnson I think.

6

effectively take a roll call from who is here and see

7

what is occurring in relation to those subpoenas.

8

each of you could step forward one after the other we

9

will try and sort this out.

10DR INGLEBY: 11

It might be best if I

Good morning Your Honour.

If

My name is Dr Richard

Ingleby of counsel.

12HIS HONOUR:

Yes.

13DR INGLEBY:

My name will be familiar to you because I drew the

14

statements of claim.

15HIS HONOUR:

Yes.

16DR INGLEBY:

I appeared on behalf of the plaintiff in two

17

pre-trial procedures before Justice Mandie on or around

18

19 February and before Justice Whelan on or about

19

12 March.

20HIS HONOUR:

Yes.

21DR INGLEBY:

I have been subpoenaed.

22HIS HONOUR:

You've been subpoenaed.

23DR INGLEBY:

I haven't been properly served but I attend

24

because I have been given a document which - it was put

25

on my desk and has the name of subpoena so as a courtesy

26

to Your Honour I am here.

27HIS HONOUR: 28

Do you wish to make any application in relation to

that subpoena?

29DR INGLEBY:

Paragraph 2 says I will be required to give

30

evidence in respect of my dealings as previous counsel

31

for the plaintiff with Harwood Andrews with Mr Graham

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DISCUSSION

1

Devries, counsel and with the plaintiff.

2

I applied to set it aside.

3HIS HONOUR:

You will be applying to set it aside?

4DR INGLEBY:

Yes.

5HIS HONOUR:

Perhaps if we just take a roll call first thanks

6

Dr Ingleby.

7

application to set it aside.

8MS REES: 9 10

Rees.

Just a moment.

Yes?

I am a member of counsel.

I was the mediator in

this matter on 26 June 2008.

12MS REES:

In this court or in another court Ms Rees?

This Supreme Court proceeding.

13HIS HONOUR:

In these proceedings and you've been subpoenaed

here by Mr Johnson?

15MS REES: 16

You will be making

If Your Honour pleases, my name is Katherine Rose

11HIS HONOUR:

14

Thank you for that.

I have Your Honour.

My involvement with the matter

is in relation to the mediation.

17HIS HONOUR: 18MS REES:

Do you make any application?

Your Honour, according to the mediation agreement

19

signed on that day, the mediation was without prejudice

20

and confidential.

21HIS HONOUR: 22MS REES: 23

And it is only by order of the court that I can be

ordered to say anything about what happened on that day.

24HIS HONOUR: 25

The first time Your Honour - - -

27HIS HONOUR: 28MS REES:

Do you make any application in relation to - - -

I would like to be excused from giving evidence in

relation to that Your Honour.

30HIS HONOUR: 31

You would have been - could only be the party to

privileged communications between the parties?

26MS REES:

29

It is privileged.

Again, if I could note that and we'll just have to

get some order into this chaos.

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181

I will just see what DISCUSSION

1

else is in line.

2

a moment thanks Ms Rees.

3MS REES:

Would you mind just standing there for

If Your Honour pleases.

4HIS HONOUR: 5MR BERRY:

Thank you for your attendance. If Your Honour pleases, my name is Peter Bernard

6

Berry.

7

solicitors for Ms Cressy and I will be seeking an order

8

that the subpoena be set aside.

9HIS HONOUR: 10

Thanks Mr Berry.

Yes Your Honour.

12HIS HONOUR: 13MR OVEN:

Thank you very much.

I am the counsel for the Legal Services Commissioner

who is present in court today.

15HIS HONOUR: 16MR OVEN:

Yes.

An application to set aside the subpoena.

17HIS HONOUR: 18

Could you also wait in line

please?

11MR BERRY:

14

I'm the principal of Berry Family Law, the

Yes and you foreshadowed this last Thursday didn't

you Mr Oven?

19MR OVEN:

Yes I did.

20HIS HONOUR:

Thanks Mr Oven.

Without wishing to invite anyone

21

else, is anyone else here in answer to a subpoena?

22

is the full gamut of them.

23

those four subpoenas Mr Johnson?

24MR JOHNSON: 25

That

Do you press the call of all

Indeed, and the ones that we discussed on Thursday

last week Your Honour.

I press those also.

26HIS HONOUR:

Which ones are those?

27MR JOHNSON:

The ones which Your Honour ruled on and as I

28

informed Your Honour's associate on Friday afternoon, I

29

will be appealing those orders.

30HIS HONOUR:

That is entirely a matter for you.

31MR JOHNSON:

Thank you Your Honour.

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DISCUSSION

1HIS HONOUR:

We didn't discuss them.

I heard legal arguments

2

and I ruled that the three of them should be struck out

3

so that is the status of those three subpoenas.

4

In relation to the other four, is there anyone who

5

can have a claim of urgency for me to hear their

6

application first?

7MR JOHNSON:

Excuse me Your Honour, I do have some questions

8

about the procedure this morning.

I realise it is quite

9

extraordinary and particularly how this corresponds with

10

the fact that you have already heard three such

11

applications and Your Honour and my learned friends as of

12

now are on notice also that I am appealing those

13

decisions.

14HIS HONOUR:

Yes.

15MR JOHNSON:

I'm just wondering, is it a sensible use of Your

16

Honour's time to be hearing these objections even pending

17

the Court of Appeal determination - - -

18HIS HONOUR:

Mr Johnson, you have brought four people to court

19

- four people who are busy.

20

court for a legitimate purpose then you have a right to

21

call and give evidence before me and you will be calling

22

them to give evidence no doubt shortly.

23

If they've been brought to

If however, you cannot persuade me that any of their

24

evidence is either relevant or otherwise admissible, then

25

the subpoenas will be set aside.

26

when we adjourned last year that we had a discussion

27

which I tried to assist you in which you foreshadowed a

28

number of subpoenas.

29

I warned you about this

I assisted you by identifying I think three who I

30

thought might be relevant for your case.

31

on the description that you told me then seemed to be

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183

The others who

DISCUSSION

1

entirely irrelevant.

2

It is entirely appropriate that I hear any

3

application.

4

brought to court by subpoena which is an order of this

5

court to have that subpoena set aside and I intend to do

6

that now.

7MR JOHNSON:

The witnesses have been compulsorily

Your Honour, I really wish - I believe it is my

8

duty to ask the question for future reference.

9

another young lady, a police inspector who has been

10

There is

subpoenaed and she will be attending at 2.15.

11HIS HONOUR:

Yes, thank you.

12MR JOHNSON:

I didn't want to waste too much of her day.

May I

13

ask in the process - reading over the transcript for

14

Friday - I give a little bit of background Your Honour.

15

The first morning of the first trial and Mr Devries'

16

preliminary application I am sure Your Honour will

17

recall.

18HIS HONOUR:

Yes.

19MR JOHNSON:

I certainly will never forget it.

One of the

20

expert witnesses, Ms Marianne Love gave some very

21

compelling and credible expert testimony which Your

22

Honour ultimately agreed with but Ms Love was in court

23

while we had a number of very complicated legal

24

submissions argued that I submit Ms Love simply wasn't

25

able to keep up with.

26

They confused her.

I submit that some of the lawyers in court probably

27

weren't able to keep up with it either and as a result

28

not only that but also hearing the testimony by Dr List

29

the witness who spoke before her - that had an

30

unfortunate colouring in Ms Love's evidence, not relevant

31

to the outcome of that application but it traces through

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DISCUSSION

1

and it is very noticeable in the terms of your ruling

2

that day Your Honour and so I would say that rather than

3

having all of these witnesses in court hearing very

4

complicated submissions of each other, I would say please

5

inform me what the relevant procedure is?

6

these applications be heard separately - - -

7HIS HONOUR:

Should each of

In a rather complicated way you have put to me as

8

I understand it, an application that as one witness is

9

asked to be excused from their subpoena, the others

10

should remain outside court.

11

me?

Is that what you are asking

12MR JOHNSON:

Yes Your Honour exactly.

13HIS HONOUR:

Yes.

That would seem to me to a reasonable

14

request and will do that.

15

for the inconvenience.

16

I apologise to those in court

I think in fairness, Mr Oven foreshadowed his

17

application so I'll simply hear that first.

18

will hear unless any of the counsel need to be in court

19

this morning or this afternoon I'll hear seriatim but

20

judging on past experience, I can give you not before

21

times if that assists.

22

to your feet.

23MR INGLEBY:

The others I

Mr Ingleby, you are about to get

I'm not in court today.

I'm booked out to prepare

24

for a trial in May.

I can be on ten minutes' notice

25

because I'm just in another office in the Central

26

Business District.

27HIS HONOUR:

Yes.

28MR INGLEBY:

My application will take 60 seconds.

29HIS HONOUR:

I understand that for you (indistinct) but my

30

experience and we went through three took a couple of

31

hours on Thursday.

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DISCUSSION

1MR INGLEBY:

Can I come back at 12 noon?

2HIS HONOUR:

What I think I'll do is I'll put you on notice.

3

I'll drop you to the last wicket down and when the second

4

last one is heard, if you could be on notice that you

5

will be needed at court.

6MR INGLEBY: 7

I'll leave my mobile number with Your

Honour's - - -

8HIS HONOUR:

I'll do that Dr Ingleby.

9MR INGLEBY:

Thank you.

10HIS HONOUR:

Subject to that I'll hear Mr Oven and then I'll

11

just go down the order in which people stepped forward

12

today.

13

Ms Rees, Mr Berry and then Dr Ingleby.

Ms Rees I would think - safely I can say not before

14

quarter past 11.

15

all.

16MS REES:

I don't know if that assists you at

Yes Your Honour.

17HIS HONOUR:

I apologise for the inconvenience.

Mr Berry, I

18

think we can safely say probably not before at least

19

11.30.

20MR BERRY:

I don't know again if that is any comfort to you.

It makes no different.

21HIS HONOUR:

Would I would ask, pursuant to the request by

22

Mr Johnson, if Dr Ingleby, Ms Rees and Mr Berry could

23

kindly step outside while the first application is being

24

heard.

25 26

Mr Oven, this rather large pile of subpoenas before me, find the one that affects your client.

27MR OVEN:

Here it is.

If it is any use it is dated 20 January 2009.

28MR JOHNSON:

Excuse me Your Honour, it may assist the court if

29

you are aware that I have not received any material

30

(indistinct) Commissioner in opposition to this

31

application.

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DISCUSSION

1

There was an attempt to send me an email with some

2

attachments which I don't have the technical resources to

3

receive.

4

like the hearing on Thursday morning that Ms Sofroniou

5

brought, I haven't seen materials for this morning's

6

opposition to my subpoena Your Honour.

7HIS HONOUR:

That was done on Thursday 5 February so much

You were put on notice last Thursday and you've

8

been put on notice since last December by me that I would

9

not be surprised if parties who come to court in answer

10

to subpoenas such as the ones you've foreshadowed, may

11

well make such an application.

12

notice in relation to this one and I'll hear it.

13

Mr Oven, thank you?

14MR OVEN:

17

Is this just - - -

No, it's to give - - -

15HIS HONOUR: 16MR OVEN:

You are certainly on

To give evidence and produce documents.

Perhaps if I could deal with the first part?

To give

evidence.

18HIS HONOUR: 19MR OVEN:

Yes.

The Commissioner seeks to set it aside on the basis

20

that it is a process vexatious and oppressive for three

21

reasons.

22

The first of the reasons is that it seeks evidence

23

which is not relevant to any issue in this proceeding.

24

By way of background, Mr Johnson made a complaint against

25

Mr Hanlon who as I understand it is the 2nd defendant to

26

the counterclaim.

27

Mr Hanlon has made a complaint against Mr Johnson

28

and Mr Devries who is the counsel for the plaintiff, has

29

made a complaint against Mr Johnson, all of those to the

30

Legal Services Commission and the Commissioner - a

31

delegate of the Commissioner has dismissed those three

1.LL:MM 09/02/09 2Cressy

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DISCUSSION

1

complaints ostensibly on the basis that the complaints

2

concern with some respect matters currently on foot in

3

this proceeding or in the Federal Magistrates' Court

4

proceeding.

5

proceedings, depending on what the findings are to make

6

the complaint again.

7HIS HONOUR: 8MR OVEN: 9

There is an invitation at the end of those

Yes.

In terms of why Mr Johnson wants to call the

Commission, if I could hand up a bundle of documents

10

including a covering letter from Mr Johnson which came

11

with the subpoena - - -

12MR JOHNSON:

May I examine those please Your Honour?

13HIS HONOUR:

I'm sorry?

14MR JOHNSON:

May I have a look at those please?

15HIS HONOUR:

What were these documents again Mr Oven?

16MR OVEN: 17

There are three documents.

going to take you to is a letter dated - - -

18HIS HONOUR: 19MR OVEN: 20

The first one that I was

Did you say these came with the subpoena did you?

No, the first document.

Which is dated – a letter

dated 22 January 2009.

21HIS HONOUR: 22MR OVEN:

That came with - - -

That came with the subpoena.

23HIS HONOUR:

Right.

Now, that's a letter, Mr Johnson, Sutton

24

Lawyers to Ms Victoria Marles, Legal Services

25

Commissioner, 22 January 2009, right?

26MR JOHNSON: 27

like to have a glance at it to visually identify - - -

28MR OVEN:

If I

29HIS HONOUR: 30

There have been many letters, Your Honour, I would

could - - -

Do you have a spare copy?

Thank you very much,

Mr Oven.

31MR OVEN:

The second document is - - -

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DISCUSSION

1MR JOHNSON:

Your Honour, Your Honour, this is, on the face of

2

it, a facsimile of 20 pages, I believe you've only been

3

handed about ten pages.

4

exhibit to my affidavit of 2 February, so you do have the

5

full 20 pages available.

6

of documents being handed up in evidence, as you know,

7

Your Honour.

8MR OVEN:

The full copy is actually an

I get very nervous about parts

If I could continue - - -

9HIS HONOUR:

Yes, now, you can response in a moment,

10

Mr Johnson.

11

that one party goes at a time.

12MR OVEN: 13

You know sufficient about court procedure

The letter is a – the first document is a letter

dated 22 January.

14HIS HONOUR: 15MR OVEN:

Yes.

It is a two page document, and then attached to that

16

is a further facsimile that Mr Johnson sent to Mr Colin

17

Neve - - -

18HIS HONOUR: 19MR OVEN:

Yes.

That consist of the entire first document.

The

20

second document is a defence and counterclaim that

21

Mr Johnson has filed in Supreme Court proceeding 1963 of

22

2008, it's a document that Mr Johnson has prepared and

23

filed with the court, you should be familiar with it.

24HIS HONOUR: 25MR OVEN: 26

Yes.

The third document is an excerpt from the Legal

Profession Act, Division 2 of Part 6.4.

27HIS HONOUR: 28MR OVEN:

Yes.

And it concerns an obligation, a statutory obligation

29

of confidentiality that the Commission has, and which I

30

wish to address the court on.

31HIS HONOUR:

Yes, I follow.

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DISCUSSION

1MR OVEN:

The - - -

2HIS HONOUR: 3

say?

4MR OVEN:

What does he seek to subpoena the Commissioner to Has he indicated in his letter?

Well, the covering letter on the first page says the

5

reasons are set out in the attached letter to the

6

Chairman of the Legal Services Commission, or the Legal

7

Services Board, it should be, and then in Paragraph 4, it

8

says, "You ever for a second doubted that your office has

9

the functions, powers, and responsibilities granted by

10

very clear and extensive statutory provisions, Chapter 4

11

of the Legal Practice Act 2004, or you ever seriously

12

thought than a non-reported, ill considered, single judge

13

Supreme Court decision could in some ... (reads) ...

14

commence legal proceedings, a test case to answer those

15

doubts", and extensively, he wants to ask questions about

16

that, and if I can go to p.4 of the attached letter, it

17

says, "I've worn out His Honour's voice, and both his and

18

mine patience, in trying to explain the Legal Services'

19

absurd legal position of" – I take it "or" should be

20

"of", "Running away from jurisdiction" - - -

21HIS HONOUR: 22MR OVEN:

On p.7.

23HIS HONOUR: 24MR OVEN:

27

Of the letter to Mr - - -

To Mr Neve.

25HIS HONOUR: 26MR OVEN:

Sorry, where are you, page?

No.

Sorry, Your Honour.

With a seven up the top there?

It's got a seven in the middle of the page, and then

on the first full paragraph has a no. 8 next to it.

28HIS HONOUR: 29MR OVEN:

Yes, you're quite right.

So there he says, "I've worn out His Honour's voice,

30

and both his and mine patience, in trying to explain the

31

Legal Services' absurd legal position of running away

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DISCUSSION

1

from jurisdiction and statutory powers and

2

responsibilities, so I instead leave it to the Legal

3

Services Commissioner to come before Mr Justice Stephen

4

Kaye when the trial of these proceedings resumes, and she

5

can explain her absurd and embarrassing position, should

6

she wish to do so".

7

seeking is to have the Commissioner come into court and

8

discuss what her powers are under the Legal Profession

9

Act 2004 in the context of complaints that have been

So extensively, what Mr Johnson is

10

made.

11

case at all.

12

a case which Mr Johnson has bought a counterclaim against

13

the Legal Services Commissioner as the tenth named

14

defendant, and I've provided you with an excerpt

15

from - - -

16HIS HONOUR: 17MR OVEN:

That's simply not an issue that's relevant to this It is relevant to another case, and that's

Yes.

What is a 156 page document.

You'll note – if I can

18

ask Your Honour to turn to p.89 of that document, which

19

is the third page in the excerpt I've given you.

20HIS HONOUR: 21MR OVEN:

Yes.

You'll see that there, it's pleaded that basically

22

since the issuing of the proceedings, these proceedings

23

have spawned three different sets of complaints which

24

have been sent to the attention of the Legal Services

25

Commissioner, the rest of the pleading then goes on to

26

deal with those, and perhaps if I could just deal with

27

the last one mentioned there, which is the complaint by

28

Mr Johnson regarding the conduct of Mr Hanlon.

29

He sets out in Paragraph 163 a letter that the Legal

30

Services Commissioner sent in response to that complaint,

31

and then, at the top of p.191, in Paragraph 164, it says

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DISCUSSION

1

– the defendant says that the Legal Services

2

Commissioner, by virtue of receiving defendant's

3

complaint materials about Hanlon & Harwood, was under

4

statutory duty to investigation those allegations of

5

misconduct against them to the full extent of her powers

6

and responsibilities (indistinct) act, but has instead

7

failed to do her statutory duty under that Act.

8 9

Paragraph 165 expands on that, and talks about misinterpretations and powers of responsibilities, and

10

Paragraph 166 seems to be a claim for breach of statutory

11

duty.

12

to the extent that there is evidence relevant about

13

statutory powers and so on, it's relevant to the other

14

proceeding, it's not relevant to this proceeding at all,

15

and it is abuse of the process of the court to seek – to

16

issue a subpoena in a proceeding for the purpose of

17

obtaining evidence or information which will be used in

18

another proceeding.

19

aside – the Commissioner seeks to set aside the subpoena

20

to give evidence arises from the Legal Professional Act

21

2004.

22

up - - -

23HIS HONOUR: 24MR OVEN:

Now, the reason why I raise that is that this is –

The last ground which we seek to set

Does Your Honour have the excerpt that I've handed

Yes, I've just - - -

You'll note that in Part 6.4.5, it's provided that

25

this section applies to a person who is or has been, and

26

in sub-Paragraph B, it refers to the Commissioner.

27

Turning over the page to sub-s.2 of that section,

28

provided that a person to whom this section applies, must

29

not directly or indirectly make a record of, disclose, or

30

communicate to any person any information relating to the

31

affairs of any person or law practice acquired in the

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DISCUSSION

1

performance of functions under this Act.

2

follows in – firstly in sub-Paragraph A of sub-s.2 are

3

two exceptions, and likewise, in sub-s.3, there's two

4

further exceptions, and perhaps if I could deal with

5

those each in this case?

6HIS HONOUR: 7MR OVEN:

Then what

Yes.

The first one is necessary to do so for the purpose

8

of or in connection with the performance of a function

9

under this Act.

That doesn't apply in relation to this

10

subpoena.

11

information relates gives written consent to the making

12

of the record, disclosure, or communication, no such

13

written consent has been given, though it was conceded

14

that people could provide that written consent at a later

15

stage.

16

giving evidence to a court or tribunal in the course of

17

criminal proceedings, or proceedings under this Act, this

18

proceeding is not a criminal proceeding, nor is it a

19

proceeding under the Legal Profession Act 2004, and then

20

the last one (indistinct) is the suspected offence to the

21

police or assisting in the investigation is not relevant

22

as well.

23

The second one, the person to whom the

In terms of sub-s.3(a), producing a document or

So in terms of the subpoena to give evidence, we say

24

that should be satisfied on those three grounds, that is

25

that it's not – it seeks evidence that – not relevant to

26

this proceeding, that it seeks evidence, while not

27

relevant to this proceeding, is relevant to another

28

proceeding, and thirdly, it seeks to – a breach of the

29

obligation of confidentiality the commissioner owes under

30

the Legal Profession Act 2004.

31HIS HONOUR:

Well, your client, by statute, is proscribed from

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DISCUSSION

1

giving evidence of the type sought to be elicited under

2

subpoena.

3MR OVEN: 4

If it's restricted only to giving evidence about

what - - -

5HIS HONOUR: 6MR OVEN: 7

- - - functions are under the Legal Profession Act,

and that would not - - -

8HIS HONOUR: 9MR OVEN: 10

General duties.

Yes.

Run up against the confidentiality provision, but

again, what is the relevance of that to this proceeding?

11HIS HONOUR:

Well, I agree with that.

If it goes to issues

12

relating to conduct of practitioners, that has no

13

relevance to this proceeding, so far as I can see, but

14

it's also proscribed.

15MR OVEN: 16

Indeed, and that's particularly relevant in relation

to the subpoena to produce.

17HIS HONOUR: 18MR OVEN:

If Your Honour looks at the subpoena - - -

19HIS HONOUR: 20MR OVEN:

Just a moment.

To produce, does Your Honour have the subpoena?

21HIS HONOUR: 22MR OVEN:

Yes.

I do.

You'll notice there's a list of documents and things

23

for production, and what they are in the first paragraph

24

is effectively complaints received by the Legal Services

25

Commissioner, if those documents exist, received by the

26

Legal Services Commissioner, in the context of her

27

obligations under the Act, now, they would all be covered

28

by the statutory obligation of confidentiality.

29

Likewise, the second category of documents, copies of all

30

correspondence sent by the Legal Services Commissioner

31

basically in response to the complaints, that too would

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DISCUSSION

1

be covered by the obligation of statutory confidentiality

2

referred to before.

3

Again, none of those documents would be relevant to

4

any issue in this proceeding, and there is one extra

5

ground on which we seek to set aside that subpoena, which

6

is that Mr Johnson already has those documents in his

7

possession because he's been involved in the complaints

8

procedure, and if I could illustrate that by going back

9

to the counterclaim filed by Mr Johnson?

10HIS HONOUR: 11

So he would have all the documents in the

Categories 1(a) to (e) in his possession?

12MR OVEN:

Well, the – in terms of his - - -

13HIS HONOUR: 14MR OVEN:

In relation to correspondence?

- - - I'm instructed that there were documents which

15

meet the description in 1(a), (b), and (e), but there are

16

documents which meet the description - - -

17HIS HONOUR: 18MR OVEN:

- - - in (d), (e), or (f).

19HIS HONOUR: 20MR OVEN:

In terms of the complaints procedure, when a

complaint is made, a copy of that is provided.

25HIS HONOUR: 26MR OVEN: 27

Corresponding to what's set out in Paragraph 2 in

his possession.

23MR OVEN: 24

Yes, so he has all the documents in any event.

Well, as - - -

21HIS HONOUR: 22

No, I see.

Yes.

As part of the complaint procedure, and the response

is also provided.

28HIS HONOUR: 29MR OVEN:

Yes.

Statutory obligation.

I could take you to the

30

counterclaim and show how he's referred to those

31

documents in the counterclaim.

1.LL:MM 09/02/09 2Cressy

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DISCUSSION

1HIS HONOUR: 2MR OVEN: 3

Yes.

And said that copies of those documents can be

obtained from his solicitor's office.

4HIS HONOUR: 5MR OVEN:

M'mm.

If it's suggested that, in reply, that he doesn't

6

have those documents, then I may take you through that

7

exercise, but otherwise, I'll leave it at that.

8HIS HONOUR: 9MR OVEN:

No, I understand that.

Thank you.

10HIS HONOUR:

Were provided to – were they provided pursuant to

11

simply good practice, or pursuant to a statutory

12

obligation?

13MR OVEN:

Both, there's a - - -

14HIS HONOUR: 15MR OVEN: 16

There's a requirement, generally, in terms of

providing complaints.

17HIS HONOUR: 18MR OVEN: 19

Both, yes, yes.

Yes.

But there's also requirements – statutory obligation

to notify in relation to the outcome of complaints.

20HIS HONOUR:

Yes, yes, I had some recollection of that.

Thank

21

you, Mr Oven, it's of great assistance.

22

you've heard the grounds upon which the Legal Services

23

Commissioner seeks to set aside the subpoena, both to

24

give evidence and to bring documents to this court.

25

do you say in response?

26MR JOHNSON:

Mr Johnson,

What

I'd like to thank Mr Oven for a very succinct and

27

helpful presentation.

28

clarify some of the documents Mr Oven handed up first,

29

and then I'll - - -

30HIS HONOUR: 31

I'd like to just go through and

I'm sorry, yes, I should in fact perhaps mark them

as exhibits in this voir dire.

1.LL:MM 09/02/09 2Cressy

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DISCUSSION

1 2#EXHIBIT A 3 4 5 6 7 8 9 10#EXHIBIT B 11 12

Copy letter from Sutton Lawyers to Victoria Marles, Legal Services Commissioner, dated 22/01/09, together with attached copy letter by Sutton Lawyers to Colin Neve, Chairman, Legal Services Commission, dated 22/01/09, and attachments thereto. Copy extracts from defence and counterclaim in respect of Supreme Court Proceeding 9263 2008.

13MR JOHNSON:

Thank you, Your Honour.

14HIS HONOUR:

Yes, sorry, Mr Johnson, now you proceed.

15MR JOHNSON:

I'll run through my notes of Mr Oven's

16

presentations Your Honour.

17

that my subpoena is an abuse of process, vexatious and

18

oppressive

19

that in respect of the plaintiff's statement of claim.

20

Mr Oven said - he asserts

and the hard problem I have is because I said

So I think that once you start an abuse of process,

21

I mean how do you cure it.

22

about whenever you have bad process or bad claims, the

23

only way to deal with it is by a bad defence argument.

24

Geoffrey Robertson talks

I'm not suggesting my defence argument is bad but

25

once a scandal opens, the only way to deal with a scandal

26

is inherent (indistinct).

27

In terms of the background to the complaints.

There

28

is actually a fourth complaint Mr Oven didn't mention.

29

It is in the materials he handed up to you, the letter of

30

22 January this year to Mr Colin Neave AM, the Chairman

31

of the Legal Services Board is many things, including a

32

complaint, a whistleblower's complaint regarding Victoria

33

Miles for the five reasons I set out very succinctly on

34

one page I fear (indistinct) reprisal actions from the

35

Legal Services Commission.

36

about Mr Devries substantial - you have those materials

1.LL:MM 09/02/09 2Cressy

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There is also a complaint

DISCUSSION

1

available to you Your Honour under one of the exhibits to

2

my affidavit of the 2nd of this month.

3

There are four complaints on foot Your Honour.

It

4

is also a complaint under the - I understand Victoria

5

Miles is an Australian law practitioner and so I'm also

6

making a (indistinct) whistleblowers and under her own

7

special legislation but under the general Chapter 4

8

provisions.

9

Your Honour, the concern I have - and it comes to

10

your barometer test of what is relevant in this case.

11

I can put this in very simple, non-lawyers' terms.

12

plaintiff's claim is in the language of Part 9 of the

13

Property Law Act v. Constructive Trust.

14

case.

15

My response is that's scandalous.

If

The

It is a property

I use the words

16

abuse of process, vexatious and oppressive claim.

17

fraud. It is criminal.

18

solicitors - I'm sorry Your Honour constantly - and I

19

realised this when I got home on Thursday.

20

barometer test for what is a relevant issue in this

21

proceeding seems to be too much emphasis on the Part 9 in

22

the claim - the cry out by the plaintiff and not looking

23

at the fraud or the misconduct in my response to those

24

claims.

25HIS HONOUR:

It is

It is misconduct by your

Your

I don't agree with that because time and again ad

26

nausea throughout this proceeding including last

27

Thursday, I have directed you specifically to the

28

pleadings both delivered by the plaintiff and to your own

29

pleadings.

30

is being run on the issues pertaining to the causes of

31

action and defences agitated in the pleadings.

1.LL:MM 09/02/09 2Cressy

I have reminded you time and again, this case

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DISCUSSION

1

This is a court of pleading.

It always has been and

2

that the parties have been required on all sides to

3

adhere to them and only to adduce relevant and admissible

4

evidence in relation to them.

5

You have drafted the counterclaim yourself.

I have

6

time and again reminded you the ambit of the counterclaim

7

which you have directed both to the plaintiff and also to

8

Mr Hanlon and to Harwood Andrews.

9MR JOHNSON:

Your Honour, I might address the second point

10

which was Mr Oven's suggestion that there were two

11

distinct, unconnected proceedings and I am somehow

12

fishing in these proceedings for evidence for the later

13

proceedings.

14

Firstly, let me hand you up because it is more than

15

160 pages - it's more like 300 pages.

This is the full

16

defence and counterclaim of Proceedings 9263 of 2008.

17HIS HONOUR:

That is a proceeding by a trust company - - -

18MR JOHNSON:

One of my mortgagees Your Honour initially against

19

me and once again I am cast in the role of the unwilling

20

hit upon defendant Your Honour.

I'm defending myself.

21HIS HONOUR:

What property does that relate to?

22MR JOHNSON:

That one is one of the Point Cook properties

23

Your Honour.

24HIS HONOUR:

Sorry?

25MR JOHNSON:

One of the Point Cook properties.

I expect all

26

the mortgagees will be joined very shortly and assorted

27

other characters.

28

Your Honour when this trial - if we can cast our

29

mind back to 2 December before we got sidetracked on a

30

morning and a bit wasted on an Order 15 application by a

31

person who didn't even have standing to bring it, I came

1.LL:MM 09/02/09 2Cressy

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DISCUSSION

1

along and said, "Your Honour, this has been set down for

2

two days.

It's been set down on a misleading basis for

3

two days.

There hasn't even been a proper discovery

4

process.

5

both these plus the other court proceedings to be heard

6

together".

7

The pleadings are settled.

There is a need for

There wasn't time for them to be combined.

There were also orders gagging me - orders made by

8

Justice Kavanagh and Justice Hansen in June and July of

9

last year - gagging me from even talking to the plaintiff

10

in those proceedings which is just extraordinary Your

11

Honour - extraordinary.

12

My submission was that the two matters should be

13

heard together.

14

bottom of the J curve although I didn't use that formal

15

language on the morning.

16

day Your Honour.

17

My financial rack and ruin was at the

I was a little unprepared that

There was no urgency for me prior to the proceedings

18

to proceed ahead of the proper proceedings.

19

everything that we have litigated in the past ten non-

20

consequential days is going to have to be re-litigated

21

anyway.

22

opportunity between the one hour at 3 a.m. on the

23

February morning when I drafted that particular

24

counterclaim document just as a holding thing, rushed to

25

get there before a Practice Court hearing before Justice

26

Mandie.

27

books Your Honour so it is still a very unenthusiastic,

28

amateur non-litigation pleading that document but it's

29

pretty thick.

30

acknowledged that the very evidence that I am asking

31

Legal Services Commissioner to produce would be relevant

Things are much better articulated.

I fear

I'd had an

I had a chance to look up some pleading text

1.LL:MM 09/02/09 2Cressy

It's pretty chunky.

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200

Mr Oven has obviously

DISCUSSION

1

in these proceedings if they heard concurrently with

2

those ones which was my initial application - - -

3HIS HONOUR:

I've rejected that application.

There are a

4

number of bases upon which it has been rejected.

5

aware of them.

6MR JOHNSON:

You are

The simple fact that there should not be two

7

proceedings can hardly used against me (indistinct) that

8

because they've been separated.

9

be joined.

I hope they'll shortly

That hearing part of the evidence of the

10

collected proceedings in this bit rather than all in the

11

latter bit is an abuse of process.

12

argument Your Honour.

It's an embarrassing

It's not a situation I created.

13

I'm grateful to my learned friend Mr Oven for

14

frankly admitting that the evidence that I wish the Legal

15

Services Commissioner to give this stay in this

16

proceeding is relevant to the true bigger proceeding.

17

I'll bear that in mind should it be necessary for me to

18

appeal the orders that you make on Mr Oven's application

19

Your Honour. I will bear that in mind.

20HIS HONOUR:

Good.

21MR JOHNSON:

In terms of saying that all of the documents are

22

confidential, with respect Mr Oven, he then corrected

23

that by saying that they are not confidential between the

24

parties.

25

I should have full copies of all the documents

26

listed in Item 1 of the list of documents.

In fact I

27

don't.

28

document - Item 1A - the letter from the Legal Services

29

Commissioner dismissing my complaint against Mr Harwood.

30

Not one complaint but three complaints.

31

order, they were Complaint No.1, Complaint No.2 and

I've twice asked for a copy of the cover letter

1.LL:MM 09/02/09 2Cressy

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201

In sequential

DISCUSSION

1

Complaint No.5.

2

and four because by the time I did I got this letter or

3

half of a letter saying "Mr Johnson, we are sorry but

4

there is this really old case that was decided, it is

5

unreported, 14 years before the Legal Services Commission

6

was even created which strips us of all our powers so you

7

have to take your concerns about Mr Hanlon's misconduct

8

and it has to be dealt exclusively by the judge".

9HIS HONOUR:

I never got around to writing up three

Mr Johnson - time and again Mr Johnson I have

10

reminded you of the issues in this case.

11

you are not addressing the points made by Mr Oven.

12

It seems to me

I put this to you simply to assist you because if

13

there is anything relevant to the issues in this case

14

that can be educed from Ms Miles, I'd be concerned you

15

have the opportunity to do it.

16

But Mr Oven has submitted that the evidence that you

17

have foreshadowed calling from Ms Miles is irrelevant.

18

That if it bears on anything, it could only bear on the

19

counterclaim that you have made in the other proceeding

20

and if you are seeking to adduce evidence in this

21

proceeding for use in that proceeding, it is patently an

22

abuse of the process and thirdly, that she is subpoenaed

23

would be under a statutory proscription from giving that

24

evidence.

25

The same objections plus a further one have been

26

made in relation to the documents sought to be brought to

27

court under the subpoena.

28

You are not assisting yourself and I've had to

29

remind you in order that you do yourself justice, you are

30

not assisting yourself by diverting on to other issues

31

which are not salient to this case.

1.LL:MM 09/02/09 2Cressy

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DISCUSSION

1

I've lost count of the times I've tried to help you

2

by pointing out what the issues are and that you must

3

focus your very commendable intellect on that.

4

do, you do yourself good in this case.

5

you constantly want to digress off them.

6 7

The difficulty is

To what issue pleaded in the claim or counterclaim are these matters relevant?

8MR JOHNSON: 9

When you

It is relevant to the maliciousness was the word I

used, malfeasance would have been a better word.

10

My whole case Your Honour is very simple.

It can be

11

very simply put.

12

filed back in February last year, drafted on a couple of

13

nights without sleep without even access to a book on

14

pleadings - I think it is a bit over-flattering to even

15

call it a counterclaim Your Honour.

16

I think calling the document that I

The claim is simply that I have no case to answer

17

and this is misconduct by the broader legal team

18

promoting this claim by Ms Cressy and there is only one

19

authority I need to cite, Callanan's case, White

20

Industries Pty Limited v. Flower and Hart, a Firm No.2

21

(1999) Qld State Reports.

22

Your Honour to say that I am entitled to costs - - -

23HIS HONOUR: 24

That is all I need to quote

It is a Federal Court decision.

I'm surprised

it's in the State reports - yes.

25MR JOHNSON:

I don't think it needed to go to the High Court on

26

that occasion.

27

simple.

28

forward evidence of malfeasance in these proceedings so

29

the bigger part of the bigger of the three issues is shut

30

out of these proceedings.

31

It was just so cut and dry.

It is very

Now, I am constantly shut out of bringing

I'm told by Your Honour, "I'm not interested in

1.LL:MM 09/02/09 2Cressy

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DISCUSSION

1

hearing problems, I just want to hear issues, trials,

2

pleadings.

3

other Australian legal practitioners at the Bar table or

4

in the gallery, you take it up with the Legal Services

5

Commissioner".

6

If you've got a complaint against any of the

The Legal Services Commissioner says, "I can't do

7

anything.

There is this really old case 14 years before

8

I was born that strips me of my 12 pages of statutory

9

powers and it means that I can't apply my $50m of

10

government annual budget and my 20 staff on my whole

11

floor of Level 9, 330 Collins Street".

12

I agree with you Your Honour, the primary

13

(indistinct) responsibility lies with the Commission but

14

they are derelict.

15

They are pointing to you.

So I am asking as one of my applications right from

16

the very start, is for some clear instruction from Your

17

Honour that that ridiculous little 18 year old case is

18

not and probably never was law in Victoria and certainly

19

can't overrule very clear 12 pages of legislation in the

20

Legal Practice Act of five years ago.

21

that Your Honour.

I am looking for

22

I'm also asking the Legal Services Commissioner -

23

this is the second time I've had to ask this for a full

24

copy of that bizarre little letter I got saying that the

25

Legal Services Commission couldn't investigate my

26

complaint against Mr Hanlon.

27

had to with no powers of investigation, no multi-million

28

dollar budget and I had to practically do the

29

investigation Your Honour. That's what the letter says.

30

It is frightening.

31

The judge had to and also I

It is frightening.

It leaves us in a position where Australian legal

1.LL:MM 09/02/09 2Cressy

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DISCUSSION

1

practitioners in Victoria are simply not regulated

2

because the court doesn't have the resources or the time

3

or the powers.

4

have a regulator that is derelict.

5

letter.

6

I readily concede that Your Honour and we As I said in that

I'm a man - you've indicated kindly enough - my

7

intellect and my abilities including my natural abilities

8

as an advocate bearing in mind that I've barely been an

9

advocate for - well just since this trial commenced - I

10

had many other hats.

11

over two decades.

12

can tell you that in all of my reading, writing and

13

teaching at university level, I've never come across an

14

example of a regulator who runs away from regulatory

15

powers.

16

power, you test it.

17HIS HONOUR:

I'm a (indistinct) economist of

An academic economist as well and I

The general practice is if you're unsure of your

Mr Johnson, I've let you go along enough to try to

18

see if somewhere in this forest of digression there's

19

some point you wish to make in favour of the subpoena.

20

And I cannot elicit any.

21

opportunity to make a submission in support of this

22

subpoena.

23

forum to criticise someone who you have brought to court,

24

to rail against her, and you're using this, and indeed

25

abusing your position as counsel, to try to do that

26

publicly, and you're wasting this court's valuable time.

27

Now, you must apply your mind to the issues I have

I've given you every

You wish at the moment simply to use this as a

28

pointed out to you.

29

you don't seem to want to do that, I can't assist you any

30

further.

31

support of the subpoena, and in particular, in answer to

1.LL:MM 09/02/09 2Cressy

When you do so, you do well.

But if

Is there anything you wish to say further in

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205

DISCUSSION

1

the points made by Mr Oven?

2MR JOHNSON:

Yes, Your Honour.

Mr Oven has readily and kindly

3

permitted that the evidence that I wish the Legal Service

4

Commissioner to give this day in this day is relevant to

5

the proceedings.

6

of the proceedings.

7

that this can somewhere be dealt with, these proceedings,

8

separately from the bigger picture.

9

Where we differ on is on the definition Mr Oven takes the view that you do,

I know not how.

These proceedings have ticked off on a flawed basis.

10

Pleadings were never finalised, Your Honour, I think

11

that's patent, that's why we're even discussing this.

12

There was no proper discovery process.

13

the court was misled, by the plaintiff's legal team as to

14

the expected duration.

15

days just discussing subpoena applications, Your Honour,

16

not two days for a full trial.

17

first 50 pages of transcript of the first morning of the

18

trial, and I can point out another dozen misleading

19

things that Mr Devries said to you.

20HIS HONOUR:

You were misled,

Now, we're going to spend two

And I can go through the

Your points about the pleadings were a little bit

21

at odds with what you said to me on 3 December when the

22

plaintiff applied to amend their plea.

23

in opposition to that application, p.156, Line 11, "I had

24

understood that the time for amending pleadings closed

25

some weeks before the trial days".

26

there submitting that the plaintiff should be bound to

27

her pleadings, and that I should not give her leave to

28

amend.

You said to me,

You were in fact

29MR JOHNSON:

I'm not suggesting that at all, Your Honour.

30HIS HONOUR:

The point you're making now is entirely

31

inconsistent with that, with you having any such

1.LL:MM 09/02/09 2Cressy

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DISCUSSION

1

understanding.

2MR JOHNSON:

I'm suggesting, Your Honour, that 2 December could

3

not conceivably be considered a proper trial date, when

4

discovery hadn't been completed.

5

of recovered stolen documents that weren't

6

disclosed - - -

7HIS HONOUR: 8

I brought in three bags

You're now digressing from the issue I

raised - - -

9MR JOHNSON: 10HIS HONOUR:

No, I'm just - - And that is - I'm talking - that is the point

11

relating to pleadings.

12

I'm concerned, the court, this case, is run on pleadings.

13MR JOHNSON:

I have reminded you, as far as

Which need to be finalised once discovery and

14

interrogatory, et cetera, et cetera.

15

happened, Your Honour.

16

basically a directions hearing.

17

the best, and it would probably take two days, given the

18

past history of this matter, and I was very surprised

19

that Your Honour was ready to go to trial, and I

20

certainly wasn't prepared, and I certainly couldn't

21

conceive of two sets of Supreme Court proceedings on the

22

same material and the same parties, proceeding - - -

23HIS HONOUR: 24

None of that

I though 2 December would be I though that would be

You've made that point efficiently.

Is there

anything else you wish to put?

25MR JOHNSON:

I would request a copy of that letter I mentioned,

26

Mr Oven, the one that fits into Item IA, of the list of

27

documents.

28

the Commissioner, or her delegate, telling me that I had

29

to conduct an investigation, and the royal commission,

30

and the brief, and hand that to the judge.

31

had to do the examination, investigation of Mr Hanlon,

1.LL:MM 09/02/09 2Cressy

That was the original rejection letter from

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207

And the judge

DISCUSSION

1

because it wasn't the Commissioner's responsibility.

2

if I get a full copy of that, not just every second page,

3

I'd be grateful.

4

enough, enough time.

5HIS HONOUR: 6MR OVEN:

Your Honour, I believe I've said

Yes, you have, thank you, Mr Johnson.

Your Honour, just one brief matter.

In terms of the

7

relevance of what evidence may be read from the

8

Commissioner in respect of the other proceeding, the

9

point I was trying to make - - -

10HIS HONOUR: 11MR OVEN:

So

Yes.

- - - is that the other proceeding involved issues

12

about the Commissioner's powers and extent, and it may

13

arise in that proceeding whether or not the Commissioner

14

can give relevant evidence about those, as opposed to the

15

statue itself setting up those powers.

16

to have it on the transcript in case that gets seized

17

upon at a later stage.

18

that, thank you.

19HIS HONOUR:

I just say that

And the – I think I'll rest with

No, I follow that.

I'll make a ruling.

20(RULING FOLLOWS) 21

1.LL:MM 09/02/09 2Cressy

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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.LL:ALM 09/02/09 2Cressy

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209

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.LL:ALM 09/02/09 2Cressy

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210

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.LL:ALM 09/02/09 2Cressy

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211

RULING

1 2 3

- - -

4

1.LL:ALM 09/02/09 2Cressy

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212

RULING

1MR OVEN:

The Commissioner seeks costs of this application.

2HIS HONOUR: 3

Yes, you do not say anything in opposition to an

application for costs?

8MR JOHNSON: 9

I will be appealing the order, anyway, Your

Honour.

6HIS HONOUR: 7

Mr Johnson, costs

normally follow the event.

4MR JOHNSON: 5

Yes, thank you, Mr Oven.

I'm in total opposition, Your Honour, but what

can I say?

10HIS HONOUR:

Thank you.

I will order firstly that the subpoena

11

directed by the defendant to the Legal Services

12

Commissioner, dated 20 January 2009, be struck out as

13

vexatious, oppressive, and an abuse of the process of the

14

court.

15

pay the costs, both relating to the subpoena and the

16

application to set aside the subpoena of the Legal

17

Services Commissioner.

18MR OVEN:

Secondly, the defendant, Mr Harold James Johnson,

If the court pleases.

19HIS HONOUR:

Thank you, Mr Oven.

I thank you for your

20

assistance in the matter, and you and the Commissioner

21

are excused.

22

Now, I think we had Ms Rees next in line?

23MR JOHNSON:

Thank you very much for your attendance.

If it please Your Honour, may I just ask one

24

question?

It's the same question I asked earlier this

25

morning.

26

subpoena applications that Your Honour has made and I

27

will be appealing, is there much value in going through

28

this process today, Your Honour?

Given that there are now four rulings on

29HIS HONOUR:

Of course there is.

30MR JOHNSON:

Very well.

31HIS HONOUR:

Because we will be proceeding with this trial, and

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213

DISCUSSION

1

if any of these witnesses are relevant, and I do not

2

strike out the subpoena, I expect you to be ready to call

3

them.

4

inconvenienced them, they'll go the witness box.

You've brought them to court, you've

5MR JOHNSON:

Thank you, Your Honour.

6HIS HONOUR:

Now, Ms Rees, you're now in court.

7

waiting outside.

8

subpoena.

9MS REES: 10

I'll just find – yes, here's the

Your Honour, I have a copy of the mediation agreement

here.

11HIS HONOUR: 12

Thank you for

It's just to attend to give evidence, it's not to

bring documents, is that right?

13MS REES:

It is yes, Your Honour.

14HIS HONOUR:

Does it foreshadow in the body of it what you've

15

been called to give evidence about?

16

only connection with the parties or the issues is that

17

you were the mediator in this proceeding I think you told

18

me on 26 June?

19MS REES:

On 26 June, yes Your Honour.

20HIS HONOUR: 21MS REES:

No. But you say your

Was that pursuant to court order?

It was Your Honour, and I didn't receive a copy of

22

Master Kings' orders until I think it was about 18 June

23

and I found out my name was actually in the order on that

24

date to be named as the - - -

25HIS HONOUR: 26MS REES:

Yes.

27HIS HONOUR: 28

Yes thank you.

Your application is to

set it aside?

29MS REES:

Yes Your Honour.

30HIS HONOUR: 31

Yes, as a mediator.

And you're going to produce to me the mediation

agreement?

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DISCUSSION

1MS REES:

Your Honour, I have the original mediation agreement

2

here and could I draw Your Honour's attention to

3

Paragraph 13 of that agreement which says that it's

4

confidential and without prejudice, the parties

5

themselves have a copy of this of course.

6HIS HONOUR:

I will need to make a copy of that or the original

7

an exhibit in this application, do you have a copy there

8

for yourself?

9MS REES:

I have a copy Your Honour.

10HIS HONOUR:

I mean if you would prefer to tender to me a copy

11

rather than the original I'm content with that and you

12

may need to keep the original for yourself, I think

13

that's a more appropriate way to do it.

14MS REES:

Thanks.

15HIS HONOUR: 16MS REES:

Thanks Ms Rees.

The confidentiality is Clause 13?

Yes Your Honour.

17HIS HONOUR:

Which says, "The mediation is conducted on a

18

confidential without prejudice basis and neither the

19

parties nor the mediator nor any other person in

20

attendance by agreement may disclose to anyone not

21

involved in the mediation any information or document

22

given to them during the mediation unless required by law

23

to make such a disclosure."

24MS REES:

Yes Your Honour.

25HIS HONOUR: Yes. 26 27#EXHIBIT A Copy mediation agreement between the 28 plaintiff Pippin Patricia Cressy, the 29 defendant Harold James Johnson and 30 Ms Kathryn R Rees, counsel mediator, 31 dated 26/06/08. 32MS REES:

Yes Your Honour.

On the basis of the confidentiality

33

Your Honour, I ask that I not be ordered to give evidence

34

of anything that happened.

1.LL:ALM 09/02/09 2Cressy

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DISCUSSION

1HIS HONOUR: 2

Yes, is there anything in the rules relating to

this?

3MR DEVRIES:

Section 23A of the Supreme Court Act Your Honour.

4HIS HONOUR:

Thanks Mr Devries, what does that say?

5MS REES:

Or s.24A Your Honour, "Where the court refers a

6

proceeding or any part of a proceeding to mediation

7

unless all the parties who attend the mediation otherwise

8

agree in writing, no evidence shall be admitted at the

9

hearing of the proceeding of anything said or done by any

10

person at the mediation."

11HIS HONOUR: 12

Yes, as you say this is - you were appointed

pursuant to the order of Master Kings dated?

13MS REES:

Dated 28 April 2008 Your Honour.

14HIS HONOUR:

Thank you very much.

So it goes beyond the

15

privilege - the objection, in fact there's a statutory

16

prescription on you giving evidence relating to the

17

mediation.

18MS REES:

Yes Your Honour.

But it was certainly known to

19

Mr Johnson as well because he signed the mediation

20

agreement.

21HIS HONOUR: 22MS REES:

Yes I noted that.

Anything else you wish - - -

No.

23HIS HONOUR:

Perhaps we will hear from Mr Johnson, thank you

24

Ms Rees for drawing those matters to my attention, thank

25

you Mr Devries, Mr Johnson.

26MR JOHNSON:

Thank you Your Honour, of course I take no

27

objection to the terms of the mediation agreement or

28

obviously the terms of the Supreme Court Act and rules.

29

Once again we have a divergence of concepts with Mr Over,

30

it was the proceedings whether they included all and the

31

two which we have together or whether it was just this

1.LL:ALM 09/02/09 2Cressy

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216

DISCUSSION

1

little bit that somehow preceded the real legal

2

proceedings.

3

mediation.

4

mediation and confidentiality is protected by the

5

legislation and the rules and the specific inter-party

6

agreements, terrorists burst into the room.

7

is that whatever happens during that terrorist episode,

8

that can't possibly be - you can't just say to a court,

9

well we can't produce that evidence, we can't - it's

10

covered by - it's nothing do with the mediation Your

11

Honour, it's outside the mediation.

12

said earlier when you were doing the roll call - - -

13HIS HONOUR:

I also have a different opinion on the Now Your Honour, if lawyers are in a

Now my view

Now Ms Rees when she

What evidence do you seek to elicit from Ms Rees,

14

without telling me the actual content, what's the

15

substance, what issue is it to go to?

16MR JOHNSON:

The evidence, Ms Rees said that mostly what

17

happened at the mediation was confidential, I want her to

18

give evidence about the bits that weren't confidential.

19HIS HONOUR:

What's that related to.

20MR JOHNSON:

I've described that in the letter of service that

21

I handed to Ms Rees.

22HIS HONOUR:

But what - - -

23MR JOHNSON:

I've described it in my affidavit of 2 - - -

24HIS HONOUR:

What actual evidence do you seek to adduce?

25MR JOHNSON:

I wish Mr Rees to give evidence of an

26

extraordinary episode where a man burst into the

27

mediation room and took over, interrupted, disturbed,

28

stopped the mediation for a few minutes.

29

to produce this evidence to you because the Legal

30

Services Commission tells me that if I don't raise every

31

issue with you Your Honour, Mr Over said I can after

1.LL:ALM 09/02/09 2Cressy

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217

I am required

DISCUSSION

1

court finishes then go and resubmit my complaint, but I

2

can only do that if I put every issue to you Your Honour.

3

So this is a misconduct issue that I need to put to you

4

in accordance with the Legal Services Commissioner or

5

when I go back and resubmit my complaint after this

6

hearing she will knock it back again on the grounds that

7

I didn't put every point Your Honour.

8

candidly and decently admitted that not everything that

9

occurred that day was confidential, it was mostly

Now Ms Rees has

10

confidential, they were her words Your Honour.

11

have evidence brought forward as I've described in the

12

relevant paragraphs of my affidavit of 2 February of

13

certain events that happened that day in Mr Rees's

14

presence which were not conceivably any part of any

15

lawful litigation and they're not protected by

16

confidentiality.

17HIS HONOUR: 18

I wish to

But how does that relate to the issues in the

claim and the counterclaim?

19MR JOHNSON:

In the layman's terms Part 9, constructive trust

20

as the complainant, oppressive, vexatious, abuse of court

21

process as the defendant, fraud, crime, malfeasance,

22

misconduct, Callinan's case, orders for costs and damages

23

against the legal practitioners who promote the

24

fraudulent, scandalous claim, that's where it all comes

25

in Your Honour.

26

about what is relevant.

27

constructive trust argument is the fact that if fails

28

miserably for lack of evidence, fails miserably for lack

29

of credibility of the unsubstantiated claims of the

30

plaintiff, therefore the only answer for why we're in

31

court today is the fraud and the misconduct and the

1.LL:ALM 09/02/09 2Cressy

It's this boundary issue we again have

FTR:7-8

The only relevance of the Part 9

218

DISCUSSION

1

malfeasance, 80/20 rule Your Honour, we've got the

2

balance around the wrong way you and I, that's what we

3

need to agree on, that's the substance of my appeal the

4

way that you handled the subpoena on Thursday Your

5

Honour, the parameter of what is relevant is you, I'm

6

sorry.

7HIS HONOUR:

Yes, thank you Mr Johnson.

8(RULING FOLLOWS) 9

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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.LL:MH 09/02/09 2Cressy

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220

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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221

RULING

1MS REES:

As Your Honour pleases.

2HIS HONOUR: 3MS REES:

Yes, do you seek any other orders Ms Rees?

No Your Honour, I was given $10 conduct money which I

4

don't need to walk across the road, and I'm quite happy

5

to hand that back if Your Honour pleases.

6HIS HONOUR:

Thank you Ms Rees, we may make restitution of

7

Mr Johnson, indeed you did not have to do that but it is

8

good of you to have done that.

9

formally order that the subpoena dated 20 January 2009

I shall therefore

10

directed by the defendant, Harold James Johnson to

11

Ms Kathryn Rees be struck out on the basis it is

12

vexatious, oppressive and an abuse of the process of this

13

court.

14MS REES:

As Your Honour pleases.

15HIS HONOUR: 16

I thank you for your assistance and your

attendance, Ms Rees, you are excused.

17MS REES:

Thank you Your Honour.

18HIS HONOUR:

Thank you.

I think the third person is Mr Berry.

19

Mr Berry, you too are the recipient of a subpoena, you

20

foreshadowed seeking to – an application to set that

21

subpoena aside?

22MR BERRY: 23HIS HONOUR:

That's correct, Your Honour.

24

So it's to give evidence and produce documents set

out in a schedule?

25MR BERRY:

Yes, Your Honour, in one sense, this issue has

26

already been argued before you by Mr Johnson in that the

27

subpoena, to me, is in identical terms to that addressed

28

to Mr Twigg of Harwood Andrews, who formally represented

29

Ms Cressy.

30

the evidence which he seeks that I give, it is

31

(indistinct) his affidavit, and it is at p.25 of

1.LL:SK 09/02/09 2Cressy

Indeed, Your Honour, insofar as it relates to

FTR:11-13

222

DISCUSSION

1

Mr Johnson's affidavit sworn 2 February 2000 and - - -

2HIS HONOUR:

Well, I have declined to read that affidavit on

3

the basis that Mr Johnson is a witness in this

4

proceeding, it would be wrong for me to read an out of

5

court affidavit, which is not evidence in this case, the

6

relevance of the subpoena must appear from evidence given

7

to me in admissible form in this case.

8MR BERRY: 9HIS HONOUR:

Thank you, Your Honour. Insofar as the affidavit, and he did read one

10

paragraph from it, it contains argumentative material,

11

he's entitled to make argument from the Bar table.

12MR BERRY:

All right, Your Honour, in that case, certain the

13

remainder of the subpoena is in identical terms to that

14

addressed to Mr Twigg, with the exception of where it

15

refers to Mr Twigg and Harwood Andrews, it refers it to

16

me and my firm, which is Berry Family Law, and Your

17

Honour, after hearing submissions from Mr Johnson, Your

18

Honour set the subpoena aside.

19HIS HONOUR: 20MR BERRY:

Yes.

21

And Your Honour, if you wish, I can – I believe I do

have the words used by Your Honour at this stage.

22HIS HONOUR: 23MR BERRY:

Yes. Your Honour found that it would be oppressive for

24

Mr Twigg to be required to answer the subpoena, and on

25

that basis, I shall set aside the subpoena, the basis

26

that it is oppressive, vexatious, and irrelevant, and

27

Your Honour, certainly my submission would be that

28

Mr Johnson's subpoena to me is equally as oppressive,

29

vexatious, and irrelevant.

30HIS HONOUR: 31

The – well, firstly, if you look at Category 4 of

the – the list of things for production seems to start

1.LL:SK 09/02/09 2Cressy

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DISCUSSION

1

with a Category 4, 5, and 6, is that right?

2MR BERRY: 3HIS HONOUR:

Look, yes, Your Honour, it does - - -

4

You look at Category 4, he would already have

those documents.

5MR BERRY:

Your Honour, I would think that on a literal

6

translation, he appears to seek that I produce the

7

original affidavits filed both in the Federal

8

Magistrates' Court - - -

9HIS HONOUR: 10MR BERRY:

Well, he can't do that.

11

I clearly can't do that, and otherwise, Your Honour,

I would submit that Mr Johnson must have copies.

12HIS HONOUR: 13MR BERRY:

Must have copies of four and five.

14HIS HONOUR:

Yes. Six relates to caveatable interests claimed by

15

your firm, well, that's got nothing to do with this

16

proceeding.

17MR BERRY:

It has nothing, Your Honour, let alone issues of

18

privilege in respect to what may have occurred between my

19

client and/or my firm's client and (indistinct) Cressy.

20

Most certainly it has no relevance to these proceedings,

21

Your Honour.

22HIS HONOUR: 23MR BERRY:

M'mm. And indeed, 6B(i), I would submit, is clearly

24

privileged information, it requires that I produce bank

25

statements, documents, income tax returns, payment

26

statements, et cetera, relating to - or evidence in a

27

recording of legal or beneficial or other interest.

28

Honour, insofar as any of those documents came into being

29

in the course of obtaining instructions, they're clearly

30

privileged.

31HIS HONOUR:

Your

Yes.

1.LL:SK 09/02/09 2Cressy

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DISCUSSION

1MR BERRY:

And Your Honour, I'd submit that they're not

2

relevant at this time.

3

otherwise recording any and all claims by my firm and

4

myself in respect to securing payment of costs.

5

Your Honour, I'd submit that that is privileged and

6

irrelevant to the matters before the court.

7

Paragraph 6C, which essentially seeks that I produce the

8

billings records of my firm, and again, I would submit

9

that that's privileged and irrelevant to the proceedings

10

B2 seeks documents evidencing or

Again,

Likewise,

before the court.

11HIS HONOUR:

Have you been given any indication, for what

12

purpose you've been asked to give evidence as distinct

13

from producing that array of documents?

14MR BERRY: 15HIS HONOUR:

Yes, Your Honour.

Mr Johnson wrote a letter to me.

16MR BERRY:

Yes. Dated 26 January.

Paragraph 2 of that letter says,

17

"You'll be required to give evidence in respect of your

18

dealings with Mr Graham Devries, counsel for the

19

plaintiff, appearing in this proceedings, and/or your

20

dealings with the plaintiff in respect of these

21

proceedings, and your fraudulent caveat taking

22

activities.

23

certainly not required to give evidence in respect of

24

those things, they are clearly matters which are

25

privileged.

26HIS HONOUR: 27MR BERRY:

Your Honour, again, I'd submit that I am

My dealings with counsel and - - -

Privileged and irrelevant. Exactly, Your Honour.

Your Honour, I must – I also

28

did write a letter to Mr Johnson which, in fact, his

29

letter dated 26 January was in reply to.

30

I pointed out the deficiencies in this subpoena.

31

invited to withdraw that subpoena, and, Your Honour, the

1.LL:SK 09/02/09 2Cressy

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225

In that letter, He was

DISCUSSION

1

fact that he requires my attendance here today,

2

particularly after a subpoena in identical terms to

3

Mr Twigg, has been dismissed, and has been found to be

4

vexatious, Your Honour, I would submit that Mr Johnson's

5

requirement that I attend here, being the principle of

6

the solicitors for the plaintiff in the course of trial

7

was intended not as any – for any genuine purpose, but

8

rather to try and place my client at a disadvantage, and

9

indeed, I would be submitting that his intent is to cause

10

grief to my firm for having had the temerity for acting

11

for the plaintiff, that would be my submission.

12HIS HONOUR:

Yes, I hear that submission, Mr Berry.

I think

13

it's probably better, since I'm (indistinct) I'll pass on

14

it, but I am troubled by the fact that this type of

15

subpoena has been directed to a solicitor who is acting

16

for a litigant to whom – that he – the defendant has –

17

he's a defendant against your client, it troubles me that

18

Mr Johnson, who has told me he has practiced as a

19

solicitor for 20 years, and that he has a profound

20

knowledge of the rules relating to conduct, should do

21

this, but I'll hear from him as to what relevance the

22

subpoena could have and why the matter sought are not the

23

subject of privilege.

24MR BERRY: 25HIS HONOUR:

Yes, Your Honour. I should also note I'm very troubled by the fact

26

that yet more court time has been consumed this morning,

27

so far on two subpoenas, which I've had to strike out.

28

Now, Mr Johnson, what is the relevance of the evidence

29

you seek to adduce from Mr Berry, and why are not a

30

number of the matters contained in them anything

31

(indistinct) would they not be the subject of legal

1.LL:SK 09/02/09 2Cressy

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DISCUSSION

1

professional privilege?

2MR JOHNSON:

Your Honour, on the legal professional privilege,

3

it has no legs because it's already been waived, but I'll

4

come to that.

5

response, and this is going to take about ten minutes.

I have about ten points I need to make in

6HIS HONOUR:

M'mm.

7MR JOHNSON:

I'm concerned, because there are a number of

8

points, I may forget to mention one or two at the end,

9

so - - -

10HIS HONOUR:

Yes, keep your voice up a - - -

11MR JOHNSON:

I'm sorry, Your Honour, I'm concerned, because

12

there are a number of points in (indistinct) I'm worried

13

I might forget to mention one or two, but - - -

14HIS HONOUR:

Yes.

15MR JOHNSON:

We'll make a go.

The letter of service dated

16

Australia Day, and Mr Berry read out the statement, the

17

main change from his letter of service to the other

18

gentleman, Mr Twigg, was I included – I want him to give

19

evidence about his fraudulent caveat taking activities.

20

What I found out on – I think this is 5 December last

21

year, was that a caveat, no. AG013148V, was registered at

22

the Land Titles Office at about 6 August 2008 in favour

23

of Peter Berry personally.

24

suspicious, as the words "trading as Berry Family Law"

25

were clearly crossed off the instrument twice.

26

I think that's very

So I've subpoenaed Mr Berry, not only as a solicitor

27

and principal and supervisor of Mr Turnbull in respect of

28

Ms Cressy's matter, but also in his personal capacity as

29

claiming a caveatable interest in my property, and I find

30

it really shocking, the suggestion that I'm not entitled

31

to any information about this claim against one of my

1.LL:SK 09/02/09 2Cressy

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DISCUSSION

1

assets that Mr Berry's making.

2

is some sort of connection, unless he has lent the

3

plaintiff money to pay his firm's legal fees, which I

4

believe are collectively across Harwood Andrews and Berry

5

Family Law, up over 300,000 now, Your Honour.

6

that Ms Cressy's only ever had to pay $3000.

7

Now, I assume that there

I believe

Now, I say that based on timesheets and tax invoices

8

that Mr Twigg – actually, Mr Turnbull was kind enough to

9

give me, an affidavit of Mr Twigg and also an affidavit

10

of his own, including things like engagement letters and

11

that sort of thing, which show all our fees, at that

12

stage, were about 50,000, just in respect of Family Court

13

proceedings, barely a quarter of the matter.

14

the (indistinct) principle point, I won't keep repeating

15

it out, the claim by the plaintiff is vexatious,

16

oppressive, and whatever the other word is, Your Honour.

17

The maintenance of the claim is, as were the three

It goes to

18

rounds of caveats, that's the last round.

19

to know what these people are claiming, I'm entitled to

20

see some – show me the evidence, Your Honour, I'm giving

21

them another opportunity to show me the evidence.

22

can they claim interests in my property?

23

out about this before 2 December, subject to one proviso,

24

they would have been joined as defendants by counterclaim

25

in these proceedings, in exactly the same situation as

26

the Harwood Andrews boys.

27

I'm entitled

How

If I had found

Now, I say with one proviso, because I did not

28

conceive on 2 December that pleadings were finalised, I

29

thought that would be just a simple – well, not simple, I

30

thought that would simply be a directions hearing,

31

because we still hadn't completed discovery,

1.LL:SK 09/02/09 2Cressy

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DISCUSSION

1

interrogatories.

I needed interrogatories, we discussed

2

that on 12 December before you, Your Honour, we stopped

3

it all night.

4

case, I apparently put - - -

She apparently couldn't understand my

5HIS HONOUR:

Can I ask you this, you said to me - - -

6MR JOHNSON:

- - - without answers to those interrogatories.

7HIS HONOUR:

- - - just a moment ago that you did not believe

8

on 2 December that pleadings had closed, is that right?

9MR JOHNSON:

Absolutely, Your Honour.

10HIS HONOUR:

Is that a true - - -

11MR JOHNSON:

I know, even today, my counterclaim has not been

12

finalised - - -

13HIS HONOUR: 14

Yes, Mr Johnson, again, I repeat, I remind you

what you said to me on 3 December - - -

15MR JOHNSON:

I am aware - - -

16HIS HONOUR:

Just a moment.

This is your own words, "I had

17

understood that the time for amending pleadings closed

18

some weeks before the trial date", you opposed an

19

application to amend.

Is that not inconsistent - - -

20MR JOHNSON:

That is not - - -

21HIS HONOUR:

- - - what you've just stated from the Bar table,

22

as a solicitor to me?

23MR JOHNSON:

With respect, Your Honour, that is embarrassingly

24

not correct.

25

amend the statement of claim, I think went and looked at

26

the Supreme Court orders regarding pleadings.

27

me, I can't remember what number it is.

28

I've looked at them since 1987, when I studied civil

29

procedure at university, Your Honour.

30

it had in there that pleadings had to close a certain

31

period from the trial commenced, that's my first point.

1.LL:SK 09/02/09 2Cressy

When Mr Devries made the application to

FTR:11-13

229

Forgive

The first time

I went back, and

DISCUSSION

1

I don't believe there's anything inconsistent in pointing

2

out a general pleading rule with the fact that my

3

pleadings are still not settled as of today, Your Honour,

4

I think it's quite clear.

5

Secondly, I did not oppose the amendment because we

6

were going helter-skelter to get all the evidence in,

7

because there was a promise held out of judgment and

8

justice before Christmas.

9

witnesses, I clipped cross-examination, I didn't do

I was hell bent, I clipped my

10

things that, at the time, I didn't know I should have

11

done, in terms of cross-examination of the plaintiff,

12

because we were dead set keen to finish by - - -

13HIS HONOUR: 14

Mr Johnson, your own behaviour before Christmas

completely contradicts that proposition.

15MR JOHNSON:

Well, I'm glad it's - - -

16HIS HONOUR:

You were set on delaying and protracting this case

17

time and again, and time and again, I warned you to stop

18

doing it.

19

Mr Berry, how do those matters relate to matters in issue

20

in this case, why are not a large number of the documents

21

and information sought to be adduced by you from Mr Berry

22

the subject of legal professional privilege?

23MR JOHNSON:

Now, how is the subpoena addressed by you to

Thank you for the question, I've already said that

24

it's not (indistinct) because they've been waived,

25

there's also – it's evidence relating to crimes that have

26

been committed, Your Honour, I don't believe privilege

27

applies to crimes, maybe it does, forgive me.

28

simple point is, Your Honour, the plaintiff is claiming

29

Part 9 constructive trust.

30

vexatious, scandalous abuse of court proceedings

31

(indistinct) extortion, crime.

1.LL:SK 09/02/09 2Cressy

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230

But the

I'm saying oppressive,

I'm saying misconduct by DISCUSSION

1

the people promoting your claims, where's the evidence?

2

They've not taken any evidence, they've not done any

3

of the things that a decent, honest, thorough

4

professional man will do to protect their own liability.

5

They haven't asked for tax returns from (indistinct) they

6

haven't asked for contracts with her names on them, they

7

haven't asked for her bank statements (indistinct) they

8

haven't asked for receipts, there's no evidence.

9

a lack of evidence, Your Honour, and it's that lack of

She has

10

evidence which proves not only the fraud, but the

11

misconduct, and here's another opportunity after they've

12

closed their case, I'm saying, "Boys, gather up, bring in

13

your evidence", they can't, they can't.

14

Because it is fraud and misconduct, and their inability

15

to answer the subpoena, just as their inability to

16

produce hard evidence, tax returns, contracts with her

17

names on them, bank statements, receipts for moneys

18

expended, it speaks for itself, res ipsa loquitur, Your

19

Honour.

20

Why not?

Now, I would just like to conclude Mr Berry referred

21

to his letter to me of 23 January, my affidavit of

22

2 February, Exhibit No. 43, is my response to that

23

letter, where I've noted my responses.

24

at least one copy available to him, may I read this to

25

Your Honour?

26HIS HONOUR:

Your Honour has

You may read it, I have told you why I will not

27

read affidavits sworn by a person who isn't a witness in

28

this case.

29

part, and if it's argument, I will listen to it.

30MR JOHNSON: 31

Honour.

If there's – you can read to me whatever

I'll response to that point presently, Your This letter, there's a number of points.

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DISCUSSION

1

Mr Berry claims I have to pay his fees for his turning

2

up, OK, that's a cute one, and there's a list of points

3

under - - -

4HIS HONOUR: 5

So what are you – you've got a letter there, have

you?

6MR JOHNSON:

Yes, Your Honour.

7HIS HONOUR:

I thought you said an affidavit.

8MR JOHNSON:

It's an exhibit to my affidavit, Your Honour.

9HIS HONOUR:

If you wish to tender that as a letter in this

10

application, I'll receive it.

11MR JOHNSON: 12

I would like it tendered, but this is so I can get

a copy back, Your Honour?

17HIS HONOUR: 18

All right, well, you read to me the relevant

parts.

15MR JOHNSON: 16

I would, but this is my

only copy.

13HIS HONOUR: 14

Thank you, Your Honour.

Well, do you want to read to me the relevant

parts, then I'll receive it as an exhibit?

19MR JOHNSON:

Thank you, Your Honour, thank you.

20MR DEVRIES:

Your Honour, I have a copy I'm quite happy to make

21

available to Your Honour or - - -

22HIS HONOUR: 23

assistance to expedite this matter, possibly.

24MR JOHNSON: 25

Thank you, Mr Devries, that would be of great

I shall read the note, Your Honour.

"Further,

Item 1", this is Mr Berry writing, "As you" - - -

26HIS HONOUR:

So this is a letter - - -

27MR JOHNSON:

- - - Mr Turnbull writing.

28HIS HONOUR:

Just a moment, this is a letter by you to - - -

29MR JOHNSON:

It's a letter by Mr Turnbull of Berry Family Law,

30

Your Honour, 23 January.

31HIS HONOUR:

I see, and then you've written notes all over, is

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DISCUSSION

1

that right?

2MR JOHNSON: 3

Yes, that's right, and provided my notes to

Mr Turnbull or Mr Berry by way of an exhibit to my

4 affidavit of 2 February. 5 6#EXHIBIT A Letter by Berry Law Firm to Sutton 7 Lawyers dated 23/01/09, together with 8 handwritten notations by Mr Johnson. 9Thank you, Your Honour.

Now, to Point 1, Mr Turnbull – no,

10

it's Mr Berry, it looks like a – yes, it's under

11

Mr Berry's name.

12

Mr Turnbull has had the primary carriage of this matter,

13

and there's no information which Mr Berry may give which

14

Mr Turnbull's not otherwise cognisant of".

15

confusing Mr Berry's referring to himself as third

16

person, but I can process that.

17

Point 1, as I read out earlier, Your Honour, Caveat

18

No. AG013148B was registered at the LTO, Land Titles

19

Office, about 06/08/08, 6 August 2008, in favour of Peter

20

Berry, personally, very suspiciously, as the words

21

"trading as Berry Family Law" were crossed off the

22

instrument, twice.

23

Mr Berry writes, "(1) as you're aware,

It's a little

My response to that is

JT, that's James Turnbull, who I mistakenly thought

24

wrote this letter, as he wrote all the others, should

25

clarify does he act for the plaintiff and represent Berry

26

Family Law and Peter Berry personally for the purpose of

27

these proceedings?

28

personal capacity as a caveator on a couple of my titles,

29

Your Honour, as well as in his capacity as a litigation

30

funder, substantial litigation funder for these wild,

31

unsubstantiated claims Ms Cressy's made against me.

32 33

I've subpoenaed Mr Berry in his

Now, Point 2, "You, requiring that Mr Berry produce original affidavits filed in both the Supreme Court and

1.LL:SK 09/02/09 2Cressy

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DISCUSSION

1

the Federal Magistrates' Court, patently cannot do so",

2

et cetera, et cetera.

3

were put together with limited resources and very little

4

time.

5

have been at the beginning of each of those items, as

6

they were in most of the affidavits.

7

there's a major issue in reading them as if - - -

Quite an exercise.

8HIS HONOUR: 9

Look, I agree, these subpoenas

The words "copies of" should

I don't think

Why do you need to – I've been through this with

you when we debated Mr – the subpoena to Mr Twig, they're

10

all proceedings in which you were a party, why are you

11

subpoenaing someone else to bring the affidavits to court

12

of which you have copies anyway?

13MR JOHNSON:

Thank you, thank you, Your Honour, that's a

14

helpful question.

15

gone out, and given the number of hearings which I wasn't

16

even giving notice of, I haven't received copies of all

17

the documents from the plaintiff.

18

surprised if I've got all of them.

19

most of them, but look, I honestly don't know, Your

20

Honour.

21

estimated trial, not withstanding there's a letter in the

22

court book, the last item in the court book prepared by

23

the defendants by counterclaim, which shows that I was

24

saying in April last year we're looking at four to six,

25

guys, and that was before a lot of the - - -

26HIS HONOUR: 27

29

I've probably got

The length of the trial's got nothing to do with Would you proceed with your argument?

It illustrates the fact that there are court

documents - - -

30HIS HONOUR: 31

I would be most

This matter was set down for a two day trial,

this subpoena.

28MR JOHNSON:

I am not confident the way these have

The length of the trial has largely been caused by

your filibustering, frankly, and I've referred to that

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DISCUSSION

1

before Christmas.

2

we can then proceed with the trial of this case?

3MR JOHNSON:

Now, can you continue your argument so

Point 2 – sorry, Point 3, "Mr Berry is aware that

4

Justice Kay", spelt K-a-y, "Has denied your many attempts

5

to put before the court the affidavit material previously

6

filed in these proceedings.

7

consistently, "Has clearly determined his interest only

8

in evidence viva voce", and my response, same as – sorry,

9

for Point 3 was, "Your many attempts are – the writer",

Justice Kay", spelt

10

mistakenly I said James Turnbull of Berry Family Law, "Is

11

being emotional drama queen, it's simply not true that

12

I've made many attempts or been denied by Your Honour to

13

put affidavit material in the court".

14

I'm surprised - there's a whole body of written

15

affidavits in exhibits, a whole body of evidence that

16

isn't before the court.

17

that about an hour after I stepped into the witness box

18

for evidence-in-chief on the fourth day of the trial.

19

That's certainly – I now realise that there is somewhat

20

of a gap in my cross-examination of the plaintiff,

21

because I thought all that material was in.

22

time, we're under pressure to try to finish it next

23

week - - -

I was surprised when I learned

Why waste

24HIS HONOUR:

Well, we are under pressure because - - -

25MR JOHNSON:

- - - why waste time asking her questions - - -

26HIS HONOUR:

- - - this court has a lot of deserving litigants

27

waiting, and you're still wasting time.

28

subpoena.

29

seriatim, you still have not answered the very simply

30

question as to how the matters to the subject of this

31

subpoena are relevant to this case, and why they are not

1.LL:SK 09/02/09 2Cressy

Now, address the

You don't have to address this letter

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DISCUSSION

1

the subject of legal professional privilege.

2

And I direct you back to that to assist you because

3

if there's anything relevant and admissible that maybe

4

adduced from Mr Berry, then he ought to give evidence

5

subject to the subpoena.

6

persuade me that that is the case - - -

So far you have failed to

7MR JOHNSON:

I believe I - sorry Your Honour.

8HIS HONOUR:

Therefore you do run the risk of having the

9

subpoena struck out unless you can point out me how

10

Mr Berry can give evidence or produce documents relevant

11

and admissible in this case.

12MR JOHNSON:

Your Honour, this case is about fraud, it is about

13

crime, it is about misconduct by lawyers, it is about

14

lawyers promoting unsubstantial - wild, unsubstantiated

15

and unsubstantiated claims, not doing basic leg work that

16

any half decent legal practitioner or other professional

17

would do.

18

case about constructive trust, the fact that it fails

19

miserably in terms of those languages of the law

20

demonstrates the fraud, the crime, the misconduct.

21

this affidavit, this material I want to be presented

22

shows that and I've said that a number of times.

23

that in respect of every subpoena application which you

24

have struck the subpoena out.

25

every appeal of every striking out Your Honour.

26

It is not a case about part loans, it is not a

Now

I said

I will be saying it on

Now I would like to continue.

My Point 4 was about

27

Your Honour, Mr Berry asserting is clearly to determine

28

his interests and only in evidence viva voce.

29

response there, as for 3, drama queen I say.

30

His Honour will be interested in the thousands of pages,

31

the three bags full I've got with me today Your Honour,

1.LL:SK 09/02/09 2Cressy

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My I'm sure

DISCUSSION

1

it nearly broke my back.

2

(sic) emphasising it's hard evidence, it's not he

3

said/she said stuff, hard evidence, all of which destroys

4

the plaintiff's case and exposes the plaintiff and Berry

5

family law and her original lawyers and past and present

6

legal counsel as frauds.

7

promoters of fraud.

8

Honour.

9

Dozens of pages of written

And I might have said and

That's what this case is about Your

There's nothing in any of the cases under Part 9 of

10

the Family Law Act or that gentleman who's the sex, lies

11

and video tape fellow whose case the decision was -

12

nothing has any relevance to this.

13

little explanation Thursday afternoon about what de facto

14

Mum and Dad would do if they had to split up a Tattslotto

15

winnings, you know, it almost woke me up.

16

with this case Your Honour, it's all irrelevant.

17

Unfortunately you're letting in stuff that's irrelevant

18

and you're shutting out the very stuff that is relevant.

19

Mr Devries's cute

Nothing to do

The very stuff that's complained about to a degree I

20

have it, I have uncertainty and lack of confidence that I

21

have all of it, it comes back simply to a case that's

22

being promoted by litigation funding, legal

23

practitioners, a woman whose claim fails for lack of

24

evidence, lack of credibility I might add.

25

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

26

my costs or damages.

27

way along, they drafted affidavits dated 6 June last year

28

stating that very point, they've pushed it anyway.

29

That's a much bigger abuse of process than Flower & Hart

30

and Dr Ian Callinan, although he wasn't tied, he gave

31

evidence in that court, much bigger abuse of process than

1.LL:SK 09/02/09 2Cressy

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She's

They very well know this all the

237

DISCUSSION

1

those gentlemen did in White Industries Pty Ltd v. Flower

2

and Hart (No.2), Callinan's principles, on facing a

3

vexatious, abuse of scandalous court proceeding with no

4

prospect of recovery when the plaintiff loses her case,

5

except from the lawyers, the promoters who push this case

6

that couldn't succeed.

7

Even after they've shut their case they nave not

8

produced the evidence to Your Honour that would be

9

necessary to justify a caveat, let alone three rounds of

10

them.

11

they were given let alone two rounds.

12

justify bringing a trial and the trial - - -

13HIS HONOUR:

The evidence to justify interlocutory relief that The evidence to

Mr Johnson, I have given you more than adequate

14

time to try to justify this subpoena, is anything

15

relevant to the subpoena other than making wild speeches

16

that you desire to put forward to assist.

17MR JOHNSON:

Your Honour, I will say I'm grateful to you for

18

the time you've given me to make my case felt this

19

morning, I'm not surprised by it the way that it has

20

proceeded, I'm not surprised by the upcoming outcome, I'm

21

not surprised by the necessity to have to appeal each of

22

these applications.

23

let me speak this morning.

24HIS HONOUR: 25

But I do thank you for your time to

Thank you Mr Johnson.

I needn't trouble you

Mr Berry.

26(RULING FOLLOWS) 27

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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.LL:MH 09/02/09 2Cressy

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RULING

1

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RULING

1HIS HONOUR: 2MR BERRY:

Mr Berry, do you have any other application?

3HIS HONOUR:

Yes Your Honour, I'd seek an order for my costs.

4

Yes, Mr Johnson, it would be difficult for you to

resist that given that costs normally follow the event.

5MR JOHNSON:

Your Honour, I totally oppose it as I have on all

6

previous occasions.

7

Ms Rees, that's all I need to say until the Court of

8

Appeal I guess Your Honour.

9HIS HONOUR:

I note the humanity and kindness of

Thank you Mr Johnson.

I shall order that the

10

defendant, Harold James Johnson pay the costs of Mr Berry

11

in relation to the subpoena and in relation to his

12

application to set that subpoena aside.

13

your attendance Mr Berry, you are excused.

14MR BERRY:

Thank you Your Honour.

15HIS HONOUR: 16

Than you for

Thank you for your assistance.

Dr Ingleby is it?

17MR INGLEBY:

The last one is

Mr Ingleby.

Your Honour, thank you for the indulgence.

I have

18

had two documents placed on the desk at my chambers in

19

the last couple of weeks, both describing themselves as a

20

subpoena.

21

"You will be required to give evidence in respect of your

22

dealings with Harwood Andrews as" - and then it says -

23

"either original or previous" - because it's in

24

manuscript I can't read it but nothing hangs on that, but

25

- "in respect of your dealings with" - and then there's

26

three people named, Harwood Andrews, in my capacity as

27

original counsel for the plaintiff, my dealings with

28

Mr Devries who appears before you in these proceedings,

29

and my dealings with the plaintiff.

30HIS HONOUR: 31

The most recent one states in Paragraph 2,

In other words - - -

I don't have a copy of that subpoena, I have a

copy of a more neutral subpoena simply asking you or

1.LL:MH 09/02/09 2Cressy

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DISCUSSION

1

directing you - requiring you to come to court to give

2

evidence.

3MR INGLEBY: 4

That was the first one and then I got sent a

second one which was this letter which I suspect - - -

5HIS HONOUR:

It's a letter is it?

6MR INGLEBY:

Yes, it's anticipating - - -

7HIS HONOUR:

What's the date of the letter Mr Ingleby?

8MR INGLEBY:

It's 26 January.

9HIS HONOUR:

Thanks, do you have a copy of that, I would

10

receive that as an exhibit on this application if you do,

11

thank you very much.

12MR INGLEBY:

I took this to be an attempt to remove possible

13

objections on the grounds of generality to the first

14

subpoena.

15HIS HONOUR: Yes thanks. 16 17#EXHIBIT A Copy of letter of Sutton Lawyers to Mr 18 Richard Ingleby dated 26/01/09. 19Thanks.

Now where does that - - -

20MR INGLEBY:

I just read to you Paragraph No.2.

21HIS HONOUR:

"You will be required to give evidence in respect

22

of your dealings with Harwood Andrews as" - what's the

23

next letter?

24MR INGLEBY:

I thought it was either "previous" or "original".

25HIS HONOUR:

Original it looks like, it's hard to tell,

26

"counsel for the plaintiff and with Mr Graham Devries

27

(counsel of the plaintiff)" - and the word "present" is

28

in the margin - "appearing in these proceedings and/or

29

your dealings with the plaintiff in respect of these

30

proceedings."

31MR INGLEBY: 32

Yes.

It's a matter of record Your Honour, that I

drew the statement of claim.

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DISCUSSION

1HIS HONOUR:

In rhe present proceeding?

2MR INGLEBY:

Yes.

And it's a matter of record that I appeared

3

in two Practice Court proceedings about a year ago.

I

4

don't have the exact dates but I've checked my fee book,

5

I appeared before Justice Mandie on or about 19 Feb 08

6

and I appeared before Justice Whelan on or about 12 March

7

08.

8HIS HONOUR:

Yes.

9MR INGLEBY:

That was in relation to an application to restrain

10

Mr Johnson from selling the home in which the plaintiff

11

resided.

12

which Mr Johnson seeks to question me about are matters

13

which are all covered by privilege, that privilege has

14

not been waived.

15

no useful purpose in me being called as a witness because

16

I cannot give evidence about anything that is relevant.

17

And the High Court has established that no inference can

18

be drawn from the reliance on that privilege.

Now the matters in Paragraph 2 of the letter

So my first submission is that there is

19HIS HONOUR:

Yes, indeed.

20MR INGLEBY:

I have the reference if that's convenient to Your

21

Honour, Giannarelli v. Wraith per Justice McHugh at 98

22

A.L.R. 10.

23HIS HONOUR:

It's a fairly well established proposition,

24

inference cannot be drawn against taking of a privilege

25

either against self incrimination or legal professional

26

privilege.

27MR INGLEBY:

Yes, so the first submission in support of my

28

application to set aside the subpoena is that no useful

29

purpose to the determination of the matters before Your

30

Honour can be served by me being called to give evidence

31

in relation to the matters that are referred to in

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DISCUSSION

1

Paragraph 2.

My second submission is that it is an abuse

2

of process for one party to the proceedings and/or the

3

lawyer for the other party to the proceedings, because

4

this letter seems to be written in both capacities - - -

5HIS HONOUR:

M'mm.

6DR INGLEBY:

To subpoena a practitioner on the other side of

7

the proceedings but can or might have the effect of

8

preventing the plaintiff in these proceedings from being

9

properly represented before Your Honour if her

10

practitioners are not able to appear before Your Honour

11

and perform the various duties they have to perform in

12

relation to other officers of the court and their client

13

without fear of intimidation as constituted by a subpoena

14

which threatens contempt law and on Paragraph 6 on the

15

next page impliedly refers to me by saying that it is a

16

violation of the office and the dignity of an officer of

17

this court for solicitors and barristers to promote,

18

issue or continue proceedings.

19

proposition.

20

It is quite an astounding

A statement of claim has been drawn and Your Honour

21

will decide that statement of claim on its merits.

22

That's how the system of justice works by evidence.

23

does not work by intimidating or attempting to intimidate

24

practitioners who do nothing more than draw legal

25

documents and appear on behalf of parties in this court.

26HIS HONOUR:

It

I should reserve that I have never ever known of a

27

member of the Victorian Bar to be intimidated and I never

28

will live to see the day Mr Ingleby so that rest assured.

29DR INGLEBY:

I'm not saying that I am intimidated - - -

30HIS HONOUR:

I understand what you are saying but I am drawn by

31

what you put as a possible purpose of this subpoena to

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DISCUSSION

1

make that observation in court.

2DR INGLEBY: 3

Mr Berry was here this morning and he is in a

similar capacity to me.

4HIS HONOUR:

I understand that.

5DR INGLEBY:

Those are my submissions Your Honour.

6HIS HONOUR:

Thank you Mr Ingleby.

7MR JOHNSON:

Thank you Your Honour.

Mr Johnson? Firstly, thank you to

8

Mr Ingleby for mentioning Giannarelli v. Wraith.

That

9

case is the - was the watershed up until 2005 of the

10

common law position that lawyers are not subject to the

11

laws of Donohue v. Stevenson.

12

discredited in every English speaking English law country

13

other than our own Your Honour.

14HIS HONOUR:

That case has now been

Mr Ingleby was referring to a different issue than

15

the one you are relating to.

16

refer if you would please to the subpoena.

17

the matters you seek to elicit Mr Ingleby clearly the

18

subject of legal professional privilege?

19

are they relevant?

20MR JOHNSON:

Let us stay relevant and Why are not

How on earth

As with Mr Rees, I wish Mr Ingleby to give

21

evidence of discussions that were certainly not

22

privileged.

23

very heart of the cover up.

24

They are relevant because they go to the

The awareness that this was a fraudulent, vexatious

25

and oppressive claim that was being promoted in the

26

(indistinct) against me and that was known and made

27

obvious in those discussions which were not protected

28

by privilege.

29

As early as the - I think it was 18 March 2008, it

30

was the adjournment of the first Practice Court

31

application which Justice Whelan all but threw out of

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245

DISCUSSION

1

court that day as an abuse of process, the Practice Court

2

application.

3

because I consented to them that he wouldn't have

4

otherwise made.

5

Made some minor orders for discovery

But it was clear those discussions were (a) not

6

privileged in any way shape or form.

7

knowledge within the legal team that they were promoting

8

a vexatious, oppressive and scandalous law suit

9

against me Your Honour.

10

They admitted

That is the evidence I wish to

have - - -

11HIS HONOUR:

Yes.

12MR JOHNSON:

May I read - "I intend to ask Richard to report to

13

the court two conversations that he and I had during the

14

course of" - sorry Your Honour 12 March 2008.

15

p.23 of my Pandora affidavit sworn by me as an employee

16

of the law firm representing me as defendant in these

17

proceedings and the affidavit - - -

18HIS HONOUR:

I have not received this affidavit.

This is

I've told

19

you, you can read parts in court if that does assist to

20

identify any relevant issue which thus far you have

21

failed to do to which Mr Ingleby can come to court to

22

give evidence in a trial in which I am hearing.

23MR JOHNSON: 24

re-catch my voice - - -

25HIS HONOUR: 26

I am speechless Your Honour but I will try to

The day that you are speechless Mr Johnson, I

don't think I will ever live to see it.

27MR JOHNSON:

Thank you Your Honour.

I need to start again.

28

intend to ask Richard to report to the court two

29

conversations that he and I had during the course of 12

30

March 2008.

31

precinct but were not on any stretch of the imagination

1.LL:MH 09/02/09 2Cressy

"I

Those conversations were within the court

FTR:14-15

246

DISCUSSION

1

without prejudice to (indistinct) because they had

2

nothing to do with any sort of settling of the

3

plaintiff's claims but rather everything to do with my

4

seeking to expose the fraudulent and deceptive nature of

5

those claims and the risks to the careers and the

6

reputations of her lawyers (indistinct).

7

Richard to tell the court of the first conversation when

8

David Hanlon returned to me outside of the entry to the

9

Courtroom 10 a bundle of original documents the plaintiff

I wish to ask

10

stole from me in her burglary of 16 November 2007".

11

got another bag full I recovered on Boxing Day last year

12

Your Honour.

13

my later conversation with him when I first spoke to Lisa

14

Newcombe" harping back to Thursdays applications Your

15

Honour.

16

and Harwood Andrews lawyers and Ms Sofroniou of counsel.

17

On that occasion I described William Hanlon and Harwood

18

Andrews as being little more than bush rangers with pen

19

and paper instead of guns and knives but still managing

20

to shoot themselves in the foot".

21

"feet" Your Honour.

22HIS HONOUR: 23

I've

"I wish to ask Richard to tell the court of

"Lisa Newcombe, the solicitors for David Hanlon

It should have been

I've already ruled that that conversation is

irrelevant.

24MR JOHNSON:

If I may continue, "I wish to ask Richard to tell

25

the court of later conversation between him and I that

26

afternoon" - there is a string intermission Your Honour

27

outside Courtroom 10, "When an exasperated, shaking and

28

heavily perspiring Richard" - I'm impressed by his

29

demeanour today Your Honour - "(a) admitted - this has

30

gone way too far and then he asked me, 'And where did

31

you meet her anyway'" - and they were his emphasis Your

1.LL:MH 09/02/09 2Cressy

FTR:14-15

247

DISCUSSION

1

Honour and again I repeat that none of those

2

conversations were on a without prejudice basis since

3

they were quite the opposite of anything like

4

negotiations to produce a settlement of the plaintiff's

5

claims.

6

Andrews was seeking to trick me into a situation where

7

they - not the plaintiff mind you but they - they control

8

this - the plaintiff is a lady hands down Order 15

9

applies to her Your Honour - hands down.

The gist of those discussions was that Harwood

That is clear

10

from her evidence in the box and the additional evidence

11

I have to put in that I have recovered from her.

12

Harwood Andrews, they not the plaintiff - Harwood

13

Andrews would instigate (indistinct) the sale of my

14

Altona property provided that the first $200,000 of the

15

sale proceeds - and there was barely that much probably

16

anyway but the whole net sale proceeds first had to be

17

given to them, 100 grand to cover their legals and

18

second, had to be spent by me to the other 100 grand on

19

someone else's legals.

20

So that $100,000 - the first $100,000 to them to

21

take up as legal fees presumably untaxed by the court and

22

charge at extortionist rates for ridiculous work that

23

should never conceivably have been done and with no

24

practical recourse by me when the plaintiff lost her

25

case.

26

The second $100,000, if there was that much produced

27

to be wasted by me on engaging independent lawyers to no

28

doubt pursue a similar exercise to what Howard Andrews

29

were doing.

30MS SOFRONIOU: 31

That was the basis of those conversations.

Sorry Your Honour, I should make a formal

objection inasmuch as this isn't evidence - - -

1.LL:MH 09/02/09 2Cressy

FTR:14-15

248

DISCUSSION

1HIS HONOUR:

I agree with that.

I totally agree with that.

2MR JOHNSON:

Your Honour, it goes to the fraud and misfeasance

3

and the only way I have of recovering the compensation

4

due to me which is by orders whether under 63(17) I think

5

it is against her present solicitors.

6

unfair.

7

present legal teams to the plaintiff so I am seeking

8

compensation on Callanan's principles.

9

Honour.

10HIS HONOUR:

I think that is

The damage should be spread between the past and

Very simple Your

You are seeking relief under your counterclaim.

11

None of the matters you've adumbrated to me relate to

12

your counterclaim.

13MR JOHNSON:

I am seeking relief on the basis I have no case to

14

answer against the plaintiff and I'm entitled to orders

15

for costs and damages against her past and present legal

16

team on Callanan principles - misfeasance principles.

17 18

The damages can leave to the other - the real hearing.

19HIS HONOUR:

You haven't got 20 issues of costs.

You've got to

20

win that claim first and if - let's just see if we can

21

press on with the trial and see who wins and who does

22

not.

23

this subpoena?

24MR JOHNSON:

Have you completed your submissions in relation to

I think I've totally explained the high relevance

25

and appropriateness of this evidence being given in these

26

proceedings Your Honour.

27HIS HONOUR:

Thank you Mr Johnson.

28MR JOHNSON:

Thank you.

29(RULING FOLLOWS) 30

1.LL:MH 09/02/09 2Cressy

FTR:14-15

249

DISCUSSION

1

(Unrevised)

2

(Kaye J)

3R U L I N G 4HIS HONOUR: 5 6

Mr Johnson has addressed Mr Richard Ingleby of

counsel under subpoena dated 20 January 2009. In a letter sent to Mr Ingleby dated 26 January he

7

has adumbrated the reasons why he then intended to call

8

Mr Ingleby notably to give evidence relating to his

9

dealings with Harwood Andrews.

10

As original counsel for the plaintiff and in respect

11

of his dealings with Mr Graham Devries who is currently

12

appearing before me on behalf of the plaintiff in these

13

proceedings and/or in relation to his dealings with the

14

plaintiff in respect of these proceedings.

15

Mr Ingleby is correct in pointing out that each of

16

those purposes would immediately invoke the right of the

17

plaintiff to object on the grounds of legal professional

18

privilege and that no waiver of that privilege has been

19

made by the plaintiff.

20

In argument before me Mr Johnson does not seem to

21

wish to press that matter but rather has sought to

22

justify bringing Mr Ingleby to court to give evidence

23

today on other bases.

24

He has firstly referred to a discussion which

25

occurred at the court between himself and the solicitor

26

before the plaintiff in relation to the return of

27

documents on/or about 12 March 2008.

28

Evidence has already been given as to what documents

29

were or were not returned on that date.

30

Mr Ingleby's evidence can assist in that matter.

31

I do not see how

Secondly, Mr Johnson seeks to call Mr Ingleby in

1.LL:MM 09/02/09 2Cressy

FTR:16-17

250

RULING

1

relation to a conversation he said he had with Mr Ingleby

2

and Ms Lisa Newcombe outside a court in which he

3

expressed relief that they were now acting in the

4

proceeding.

5

addressed to Ms Newcombe on the basis that the

6

conversation would be irrelevant to the matters in this

7

case.

8 9

I have already set aside the subpoena

Mr Johnson has also referred me to another conversation which he said with Mr Ingleby I think on the

10

same date although it was difficult to gather from the

11

way in which he has made his submissions to me today.

12

That conversation, if it occurred at all is entirely

13

irrelevant to the proceedings contained in the pleadings

14

in this case.

15

I have spent the whole of this morning pointing out

16

to Mr Johnson, as I have for two weeks last year during

17

this trial, that this is a court of pleading that I am

18

obliged to only hear and adjudicate on matters which are

19

the subject of the pleadings.

20

I cautioned Mr Johnson on 12 December that if he

21

were to issue and serve subpoenas compelling people to

22

come to court, that he must take care to ensure that

23

those people can give admissible evidence

24

these proceedings or produce documents which are relevant

25

to these proceedings.

26

relevant to

It has become evident from the subpoenas on which I

27

have ruled so far that Mr Johnson has deliberately and

28

intentionally ignored that proposition.

29

I have indicated time and again during this case

30

that it is clear that Mr Johnson is a man of high

31

intellect.

1.LL:MM 09/02/09 2Cressy

He is an experienced solicitor. FTR:16-17

251

When he has RULING

1

wish to do so he has been able to address the relevant

2

issues in this case and to do himself justice.

3

It seems to me he is deliberately trying to divert

4

this proceeding away from the relevant issues for his own

5

purposes and I have cautioned him and warned him time and

6

again that that does not redoubt to his advantage.

7

distracts him from attending to the relevant issues in

8

the case but it also runs a grave risk that I will draw

9

an adverse inference against him in relation to his

It

10

credibility because it does seem to me that his conduct

11

throughout this trial has been simply none other than

12

that of trying to delay and protract this case

13

deliberately.

14 15 16

It is most important that he makes one last attempt to attend to the relevant issues in this case. In conclusion, I should say one other matter.

A

17

subpoena addressed to a party or person is a order of

18

this court compelling that person to come to court.

19

Practitioners, day after day, issue subpoenas, and in

20

doing so, they take conscientious care to ensure that

21

they only bring to court, under a compulsion of this

22

court, people who can genuinely give evidence relevant to

23

cases.

24

The right to issue subpoenas carries with it

25

corresponding responsibilities to ensure that people are

26

not disrupted in their practices, and are not brought

27

without warning compulsively to court by a court document

28

to give evidence and produce documents that are entirely

29

irrelevant to the proceeding.

30

Mr Johnson bear that carefully in mind in relation to any

31

further subpoenas he sees fit to issue in this

1.LL:MM 09/02/09 2Cressy

FTR:16-17

252

It is most important

RULING

1

proceeding, otherwise clearly the inference will arise it

2

is deliberately breaching the privileged which he has in

3

issuing subpoenas.

4

Having said all that, it is clear that the subpoena

5

addressed to Mr Ingleby is oppressive, vexatious, an

6

abuse of the process of this court, and it will be struck

7

out on those bases.

8

- - -

9

1.LL:MM 09/02/09 2Cressy

FTR:16-17

253

RULING

1HIS HONOUR:

Mr Ingleby, do you make any other application?

2DR INGLEBY:

No, Your Honour.

3HIS HONOUR:

Thank you, thank you very much.

4DR INGLEBY:

Thank you.

5HIS HONOUR:

I shall therefore order, perhaps before you

6

depart, Mr Ingleby - - -

7DR INGLEBY:

Sorry, I do apologise.

8HIS HONOUR:

No, that's all right, I don't blame you for being

9

keen to get out of this court.

I shall order that the

10

subpoena to Mr Richard Ingleby dated 20 January 2009

11

shall be struck out on the basis that it is oppressive,

12

vexatious, and an abuse of process to this court.

13

you for your attendance, you're excused.

Thank

14DR INGLEBY:

Thank you, Your Honour.

15HIS HONOUR:

Mr Johnson, is there anyone at court who you have

16

subpoenaed to court, or anyone else who has come to court

17

today, to give further evidence in relation to your

18

counterclaim?

19MR JOHNSON: 20

I'm not expecting anyone until 2.15 today, Your

Honour.

21HIS HONOUR:

Who are you expecting at 2.15, Mr Johnson?

22MR JOHNSON:

A police officer, Constable Jennifer Locke.

23HIS HONOUR:

Jennifer Locke, you foreshadowed calling her last

24

year, that's right.

25MR JOHNSON:

Yes.

26HIS HONOUR:

Will you be calling any other witness in your

27

counterclaim?

28MR JOHNSON: 29

recovered stolen evidence that I mentioned.

30HIS HONOUR: 31

No, I won't, Your Honour, although I do have some

Yes, you told me that you had found further

documents.

1.LL:SK 09/02/09 2Cressy

FTR:18

254

DISCUSSION

1MR JOHNSON:

Yes.

2HIS HONOUR:

What I think you'll need to do is to presume your

3

evidence to give evidence as to where you found them, and

4

then we'll produce them, and subject to hearing from the

5

parties, I'll receive them as further exhibits in the

6

proceeding.

7MR JOHNSON:

Thank you.

8HIS HONOUR:

You follow that?

9MR DEVRIES:

Your Honour, I'm quite happy for Your Honour to

10

receive the bundles of what I understand are documents

11

relating to properties without any enquiry as to –

12

without any admissions as to their provenance.

13HIS HONOUR:

So you don't require any evidence to be given as

14

to where – where Mr Johnson found them?

15

some – I would need to be told, and there may be common

16

ground as to when he found them and physically where they

17

were.

18MR DEVRIES:

I would need

No, there was no common ground on that, there was

19

common ground as to the fact that he came – sorry, with

20

respect, Your Honour, he can tender those - - -

21HIS HONOUR:

Yes, well, part of his counterclaim is that your

22

client took his documents, and part of the response of

23

that has been, "Yes, we took them, and we've returned

24

them".

25

found more of them that were not returning on that basis.

26

Now, I may be misunderstanding him, is that what you're

27

saying, Mr Johnson?

28MR JOHNSON: 29

I've found two lots of loot, Your Honour.

One is

two bags of the contracts that were the subject of - - -

30HIS HONOUR: 31

Now, Mr Johnson seems to be saying that he's

Where did you – which document – where did you

find them?

1.LL:SK 09/02/09 2Cressy

FTR:18

255

DISCUSSION

1MR JOHNSON:

Should I be in the box - - -

2HIS HONOUR:

I think it is probably better you do that,

3

because, while Mr Devries has tried to shorten the

4

matter, I don't think you'll succeed in doing it.

5MR DEVRIES:

NO, it doesn't sound like it, Your Honour.

6HIS HONOUR:

I do think it's better to hear viva voce evidence

7

on this, Mr Devries.

8
(Indistinct) just about the oath process, because I

10

swore a special oath on 7 May 1990, the day I signed the

11

court roll, so I'm just wondering why doesn't – I think

12

that oath binds me on everything I do every day - - -

13HIS HONOUR:

No, the - - -?---Inside and outside of - - -

14The oath that you have been reminded of by Mr Richards today is 15

the oath which you took when you first gave evidence in

16

this trial to tell the truth, the whole truth, and

17

nothing but the truth?---Yes, your - - -

18Do you understand that?---Of course, and I take that – that's 19

what I regard as a common oath - - -

20I'm not interested - - -?---- - - under my special oath of 21

nearly 19 years standing - - -

22Mr Johnson, you're again deliberately wasting time.

Now, you

23

have entered the witness box to give further evidence.

24

What, you say you have found some further documents, is

25

that right?---Yes, Your Honour.

26

I swore dated 16 January this year which outlines the

27

evidence.

28

started, Ms Cressy started giving evidence, she gave

29

evidence to the fact that she was no longer at my house

30

at Point Cook.

31

of the property, Your Honour.

1.LL:SK 09/02/09 2Cressy

I have an affidavit that

Basically what happened is when the trial

What I did is I'm now back in possession

FTR:18

256

DISCUSSION

1Yes?---She's not there, it has to be used, and of course - - 2This is 2 Dorrington Street?---2 Dorringston Street, and 3 4(CNP:

7 Inverloch Drive. Yes?---It's one property on two titles, Your Honour)

5HIS HONOUR:

Yes?---It's one property on two titles, Your

6

Honour.

I went to the house on boxing day last year and

7

in my garage there's a frightful mess.

8

it up, but I'm still getting there.

9

of evidence, Your Honour.

I cleaned some of

I found three bags

Two bags are the documents

10

that were discussed before Justice Wheelan on 12 March

11

that were supposed to be given - - -

12Well, they're talking about Justice Wheelan, but what are 13

they?---Large tract of original contracts for their

14

construction purchase financing refinancing of my

15

property (indistinct) Your Honour.

16That's all?---Yes.

So I've got two bags – two bags here.

17

There is one – one of these folders already.

It's

18

sitting on your associate's desk, the blue one, Pointe

19

Cook, Inverloch Drive.

20

convenience if these two bags of documents be recorded as

21

Exhibits B and C or - - -

So I would ask just for

22Well, we'll see them in due course?---Yes. 23That I think - - -?---I do describe them. 24

I list the folder

names in my affidavit of 16 January.

25I think – was that the – did you say the one which is on my 26

associate's desk relates to 7 Inverloch Drive?---It's

27

this blue folder here, Your Honour.

28What Exhibit number?

Exhibit?

Exhibit 1 is recorded as being

29

the blue folder of documents relating to the purchase of

30

property at 7 Inverloch Drive, Hoppers Crossing.

31

originally tendered by identification and made

1.LL:SK 09/02/09 2Cressy

FTR:18

257

It was

DISCUSSION

1

(indistinct) absolutely (indistinct).

All right, so that

2

relates – and you said to me that you in fact had other

3

documents of that (indistinct) which were not made

4

available to you?---And a lot of them are here now, Your

5

Honour.

6Sorry?---A lot of them are here now, Your Honour. 7

– that is what I said.

8So what are they? 9

That's right

You've got folders for each of the

properties, do you?---Yes, Your Honour.

10I suggest you lie them down on the side or there's going to be 11

physical disaster?---I nearly broke my back bringing them

12

to court today Your Honour.

13

Crossing No.2, Hoppers Crossing No.3.

14

them in my affidavit.

There's a blue one, Hoppers I have indexed

15I think the best thing is – I should – I'll need to receive 16

these each as exhibits.

You say you found these in the

17

garage, they relate to different properties which are

18

simply given separate exhibit numbers, do you follow?

19

---But I would have thought that the – connected with one

20

– I mean these should have been given to me when I was

21

given one.

22

not quite sure how you describe how I received these,

23

Your Honour.

I was given one obviously by accident.

I'm

24Well, let's do them property by property as this – I'll receive 25

each one as a separate exhibit?---I think there's gaps

26

and it will take quite a bit of time but I have listed

27

them in my – in my affidavit.

28Well, what's the affidavit? 29

What date is this?---The 16

January Your Honour.

30I haven't – as I said, I've declined to free that because it 31

would not be right for me to do so.

1.LL:SK 09/02/09 2Cressy

FTR:18

258

Does that only DISCUSSION

1

relate to this list or what?---It covers these documents

2

that I found, it covers (indistinct) loot from the

3

burglary of 16 November.

4I think what we'll do there is I think we'll - - -?---And it 5

covers some other documents in this person's own

6

handwriting.

7- - - ask the question.

I think what we'll do – the documents

8

that you say you've found is on 26 December.

I'll

9

receive it – you've got a number of folders.

Are you

10

able to tender me the folders that relate to a specific

11

property or do they?---Yes.

12Well, which one?

Start with one, you can use?---Maybe I'm

13

being pedantic Your Honour, but they just look – we've

14

got Exhibit 1, so maybe they should be 1A, 1B, 1C to keep

15

them all together?

16If you think that will assist?---Exhibit 1 is all of the 17

original contracts that - - -

18No, it isn't.

Exhibit 1 just relates to 7 Inverloch Drive?

19

---Yes, that's right, but these are – I mean, these are

20

siblings.

21These are what?---Siblings? 22

They're part of the one set of

documents.

23Do they relate to 7 Inverloch Drive too?---One of them does, I 24

think.

I thought that was the only folder, but then I

25

found another one.

There you go.

26Mr Johnson, do you wish to tender them, you get them in order? 27

---Thank you, Your Honour.

Page 2 of my exhibit number,

28

35, to an affidavit of 16 January this year, that I'll

29

just go through the list.

30

- - -

Point Cooke, Dorrington Street

31So you're going to file it there relating to Dorrington 1.LL:SK 09/02/09 2Cressy

FTR:18

259

DISCUSSION

1

Street?---Yes.

2Let's pull that out on that Exhibit 1A. 3

Has counsel the

opportunity to see these documents?

4MR DEVRIES:

No, Your Honour, I'm aware of their existence.

5HIS HONOUR:

Yes, well, what I will do then is Exhibit 1A will

6

be a – this looks like a green folder?

(Indistinct) will

7

adjudicate on the colour scheme.

8

green folder of documents relating to – is this just the

9

construction of Dorrington Street, it looks like to me?

So this relates – the

10

---I haven't really looked at it, Your Honour.

11

so.

I think

12Well, I think it'll be – I'll put it generically, Exhibit 1A 13

will be a green folder of documents relating to the

14

purchase of in construction of the property at 2

15

Dorrington Street Hoppers Crossing.

16 17#EXHIBIT 1A 18 19

Green folder of documents relating to construction of 2 Dorrington Street, Hoppers Crossing.

20Next document, what have you got there?---This is Hoppers 21

Crossing 02, second folder in this series.

22When you say Hoppers Crossing, which property?---Ah, look it's 23

probably both because they were twins and I did them both

24

at the same time and – and a lot of the paperwork I did

25

(indistinct) was working longer.

26

cross filing.

So there's a lot of

I'm just taking - - -

27Do you mean Lisa Court and Hawkers?---Hawkers Court, yes, Your 28

Honour, yes.

29Well, Exhibit 1B will be a blue folder of documents?---It might 30

be worthwhile - - -

31These relate to other properties – Oakwood Estate?---No, no, 32

that was the original.

1.LL:SK 09/02/09 2Cressy

FTR:18

260

DISCUSSION

1I see?---There's Lot 48 and Lot 108. 2And then they renamed Lisa Court?---Yes, Your Honour. 3Well, Exhibit 1B will be a blue folder of documents relating to 4

the purchase, construction of the properties at all of

5

Lisa Court and 10 Hawkers Court Hoppers Crossing?

6

---It might be worthwhile to include the labels on the

7

folders and the exhibit names, Your Honour.

8The labels are on the outside?---They all have labels, Your 9 Honour, yes. 10 11#EXHIBIT 1B Blue folder of documents relating to 12 purchase, construction of properties in 13 Lisa Court/ Hawkers Court Hoppers 14 Crossing. 15Thank you, I thank you for drawing that to my attention. 16

Exhibit – I think that's fairly clear anyway?

17

---Thank you Your Honour.

18

Drive one.

19

there's a two and a three still missing.

20Yes.

Thank you.

This is the other Inverloch

That's labelled 04 which tells me that

21HIS HONOUR: Thank you. 22 23#EXHIBIT 1C Blue folder labelled Point Cook, 24 Inverloch Drive 04, relating to the 25 property, and 7 Inverloch Drive, Point 26 Cook. 27WITNESS:

Thank you, Your Honour.

The next one is Hoppers

28

Crossing, Wentworth.

29

of the houses, I can't remember which.

30HIS HONOUR: 31

That was the model design for one

So it's either Hawkhurst Court or Lisa Court?

---Yes.

32Thank you?---But again it kind of keeps documentation for both. 33

There's a home loan application form in there that I do

34

want to - that jogged my memory when I saw this, so you

35

want to come back - I put - - -

1.LL:SK 09/02/09 2Cressy

FTR:18

261

DISCUSSION

1Do you want to say something about that?---I do, Your Honour, 2

because it jogged my memory at one point.

3I'll just put a little note there. 4

application form.

There's a home loan

Once you finish this tendering, we'll

5 go back to it, all right?---Thank you. 6 7#EXHIBIT 1D Green folder labelled Hoppers Crossing 8 Wentworth relating to the purchase and/or 9 construction of the properties at Lisa 10 Court and Hawkhurst Court, Hoppers 11 Crossing. 12WITNESS: 13

At Hoppers Crossing 03, Your Honour, again the two

Hoppers Crossing properties.

14HIS HONOUR: Yes. 15 16#EXHIBIT 1E Folder Hoppers Crossing 03 relating to 17 the two Hoppers Crossing properties. 18WITNESS:

The last one is another property which I rented, it's

19

my virtual office which I still keep today, Osborne

20

Street, South Yarra.

It was in the bag, Your Honour,

21 I've just brought the bags and I found them. 22 23#EXHIBIT 1F Blue folder labelled Osborne Street 24 office. 25And the bag, Your Honour? 26HIS HONOUR: 27

Sorry?---This is the bag that I found them in.

I'm - - -

28(Indistinct), do we need that bag?

I think we'll just put them

29

in the - you've told - - -?---I brought them exactly as I

30

found them.

31

it sticker to the loan application to remind me - - -

The only thing I adopt - added is that sign

32No, I don't think we really need the blue bag.

You've told me

33

you found them in a blue shopping bag?---Yes.

34

we have the white Target bag.

And then

35So you tell me you found Exhibits 1A to 1F in a blue bag, and 36

now you've - - -?---Yes.

1.LL:SK 09/02/09 2Cressy

FTR:18

262

DISCUSSION

1- - - taken some folders out of a white bag?---This is the 2

original Point Cook, Dorrington Street, sequentially the

3

first property I purchased, and I think I said in

4

evidence that this was a pink folder, so my memory - - -

5Thank you. 6 7#EXHIBIT 1G 8

Pink folder labelled Point Cook, Dorrington Street.

9WITNESS: This is Dorrington Street again, 03. 10 11#EXHIBIT 1H Blue folder, Point Cook, Dorrington 12 Street 03. 13And this is Dorrington Street again, 04, Your Honour. 14HIS HONOUR: Thank you. 15 16#EXHIBIT 1J Blue folder, Point Cook, Dorrington 17 Street 04. 18WITNESS: 19

Thank you, Your Honour, and the last one is Hoppers

Crossing again, 04.

20HIS HONOUR: Thank you very much. 21 22#EXHIBIT 1K Blue folder, Hoppers Crossing 04. 23So they're all the documents - - -?---Yes, Your Honour. 24Now before we forget, is it useful to go back to 1D and you 25

tell me what you - - -?---Thank you, thank you.

26

at that folder - - -

I looked

27Perhaps if you - do you want to have a look at that?---Yes. 281D you flag is - if you show it perhaps to Mr - - -? 29

---That's - - -

30- - - you flag some home application, 1D relates to the Hoppers 31

Crossing properties?---Thank you, Your Honour.

32

original and current continuing banker, AMP Bank, for

33

these properties.

34

there's a copy here.

35

that address, the plaintiff's Salvation Army, so living

36

is not the right word, in Illouera Avenue.

1.LL:SK 09/02/09 2Cressy

FTR:18

My

I did the loan applications and There's a reference to me living at

263

DISCUSSION

1Illouera Avenue?---Yes, previous residential address, Illouera 2

Avenue, and according to this document, I moved there in

3

May 2000 and I was there for - no, sorry, according to

4

the document I moved there in November 2000 and then I

5

moved to what was my then address at South Yarra,

6

Nicholson Street.

7Whose handwriting is that document?---It's my handwriting but 8

the dates are wrong and I'm having trouble reading that.

9

Yes, I did have it the right way, I hate reading.

10

Previous residential address was - at the time I did the

11

application I was living at 45 Nicholson Street, South

12

Yarra.

13

that I moved there November 2000.

14

previous residential address and it says it's 45 Illouera

15

Avenue, Grovedale which is meant to be a reference to 5

16

Illouera Avenue, being the plaintiff's Salvation Army

17

home that she was renting, and that I moved there in May

18

2000, OK.

19

month before Illyana - Patricia Cressy was born and so

20

when Illyana was born in June of 2000 and the birth

21

certificate shows Mum's address as 5 Illouera Avenue,

22

Grovedale, and it shows my address as my home at that

23

point in Gheringhap Street, Geelong, 142 I think it was,

24

Gheringhap Street, Geelong.

25

not correct but it does show there's a six month claim on

26

that document that that was my previous residential

27

address.

28

year in evidence the difference between a residential

29

address and a living address.

30

years I've had six property addresses, this time last

31

year I had six business addresses.

I've listed that as my current address and said

1.LL:SK 09/02/09 2Cressy

The next then says

Now in point of reference, May 2000 was the

So that shows that that is

Now the dates are wrong, um, we discussed last

FTR:18

264

For most of the last eight

DISCUSSION

1MR DEVRIES:

These are submissions Your Honour, not evidence.

2HIS HONOUR:

He's giving an explanation?---Thank you.

3MR DEVRIES:

If Your Honour pleases.

4HIS HONOUR:

I disagree with the objection, Mr Johnson is

5

entitled to give an explanation?---Thank you Your Honour,

6

I did wonder whether this was an appropriate point or

7

not, but - - -

8Well you're giving evidence?---What happened is that I obtained 9

a drivers licence, I had to do a change of address,

10

between moving from Geelong to South Yarra, I'm trying to

11

think why, why did I have to do that.

12

Gheringhap Street, because the licence is in evidence,

13

it's an exhibit and it's got 5 Illouera Avenue on the

14

back with the VicRoads sticker, why did I do that.

15

at that time because I was moving to South Yarra and I

16

was trying to get out of the lease for the retail

17

premises I had which was 80 Little Malop Street in

18

Geelong.

19

both at the same time, and actually got out of

20

142 Gheringhap and I was kind of living - because I'm

21

working like 20 hours a day so I'm practically living

22

where I had my office set up.

23

Street down to Little Malop Street, the upper floor of a

24

retail spot on the corner.

25

there so I must have put down - because I didn't want to

26

use that address because I was leaving soon, leaving

27

Little Malop Street soon, got out of Gheringhap, leaving

28

Little Malop soon, but I didn't have any address to give

29

because I wasn't yet at South Yarra, hadn't yet like even

30

negotiated it.

31

Ms Cressy's address as my registered address for VicRoads

1.LL:SK 09/02/09 2Cressy

I moved from

Now

I'm thinking, you know - I'm trying to get them

Moved from Gheringhap

I was trying to get out of

So for a few months I was using

FTR:18

265

DISCUSSION

1

purposes and that's how that licence happened to have

2

that address on it even though I never lived there.

3

I realised that when I looked at this, but I still see

4

here the dates are wrong, um, I've referred to Illouera

5

Avenue, No.45 rather than 5 which was the Salvation Army

6

address.

7

application process - your address and your previous

8

address have to match up with what's on your licence,

9

that's the reason.

And

I've referred to that because the loan

So there's been a little bit of

10

confusion, mis-information crept in through that licence.

11

Now the really scary bit is that - or I alluded to this

12

in my evidence-in-chief and I invited Mr Devries to pick

13

this up, but I describe four occasions that Ms Cressy

14

burgled me over the years.

15

a rolling burglary and it was during the process of that

16

burglary, that's how she got my old licence Your Honour.

17

How else - why else would she be holding an old licence

18

of mine that expired years ago.

19

Point Cook yesterday and I found a whole lot of more

20

material, I found a whole lot of her lawyers' letters to

21

her - - -

22HIS HONOUR:

The earliest one was a bit of

I was at the property at

Now I think, I see the time?---Yeah, yes.

23Now I think completed the tender of this group of documents, 24

are there any other documents that you have uncovered

25

during - - -?---Yes there is - - -

26During the two month adjournment?---Yes. 27We will deal with them after lunch. 28MR DEVRIES:

Your Honour, just before we rise for lunch, can I

29

put Mr Johnson on record that I will be applying to Your

30

Honour to tender as part of my client's case, an order

31

made by His Honour Federal Magistrate O'Dwyer last Friday

1.LL:SK 09/02/09 2Cressy

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266

DISCUSSION

1

relating to parenting orders for the child Illyana and I

2

will be doing that on the basis of the decision in

3

(indistinct).

4HIS HONOUR:

Yes I see, well you've given him warning, you need

5

not respond at this stage but I hear what you say and we

6

can deal with that after lunch.

7MR DEVRIES: 8

I will have my instructor give Mr Johnson a copy

of that particular order.

9HIS HONOUR:

Thanks Mr Devries, I will now adjourn till 2.15, I

10

would think at 2.15 if the police officer Jennifer Locke

11

is here rather than inconvenience her, we will deal with

12

her evidence immediately, all right?---Thank you Your

13

Honour.

14We can resume your evidence when we have dealt with Ms Locke. 15

2.15 thanks.

16<(THE WITNESS WITHDREW) 17LUNCHEON ADJOURNMENT 18

1.LL:SK 09/02/09 2Cressy

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DISCUSSION