Brothel Gate Day 15 Pm

1MR DEVRIES:

Your Honour, before Mr Johnson resumes, I've gone

2

through the transcript of my client's evidence a number

3

of times today whilst he was on his feet and over lunch.

4HIS HONOUR:

Yes.

5MR DEVRIES:

I cannot find a single reference to Mr Cockram and

6

her evidence.

7

appreciative of finding out.

8

says he asked her is impossible.

9HIS HONOUR: 10MR DEVRIES:

If there is a reference, I'd be greatly Otherwise, the question he

Yes I follow that. One other thing sir, while I'm on my feet, the way

11

this matter is going there's a fair chance that it'll be

12

going on the 19th of this month.

13

both Mr Johnson and I will have to beg a break from

14

Your Honour, because we'll be appearing in another part

15

of this court.

If that's the case,

16HIS HONOUR:

Right.

17MR DEVRIES:

On an application in the counterclaim in the other

18

matter.

19HIS HONOUR:

I follow.

20MR JOHNSON:

No, Your Honour, I'll be available for your court

21

on that day.

I don't have a - - -

22HIS HONOUR:

The 19th is - - -

23MR DEVRIES:

Next Thursday.

24HIS HONOUR:

Next Thursday.

This case will be finished before

25

then, Mr Devries which is probably a very brave

26

prediction, but I hear what you say.

27MR DEVRIES:

Yes.

28HIS HONOUR:

But we really – yes this case has to come

29

to a close.

30MR DEVRIES:

I believe it'll be in the Practice Court.

31HIS HONOUR:

Thank you.

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DISCUSSION

1MR DEVRIES:

I believe it'll be a strike-out application.

2HIS HONOUR:

Yes, I understand.

3

Thanks for that information,

Mr Devries.

4MR DEVRIES:

Thanks Your Honour.

5HIS HONOUR:

Mr Johnson.

6MR JOHNSON:

Thank you, Your Honour.

I'm indebted to

7

Mr Devries for doing that searching of the transcript.

8

couldn't find a reference to my putting that question

9

to - - -

I

10HIS HONOUR:

You couldn't either.

11MR JOHNSON:

I couldn't either.

12HIS HONOUR:

I think where you may be being confused, you put

13

the question to Mr Cockram.

14MR JOHNSON:

Yes.

15HIS HONOUR:

Whether he knew Ms Cressy, and I think he said,

16

his response was, "I didn't know anyone in the court", or

17

words to the effect.

18MR JOHNSON:

I don't really remember, if that's all right,

19

Your Honour.

20

advocate, that would have been my second or third day,

21

probably my – probably third day I think.

22

the Thursday morning.

23

had to go to the hospital on the Tuesday morning.

24

hadn't slept a wink the Monday night, the Tuesday night,

25

or the Wednesday night with chronic back pain.

26

certainly wasn't at my best.

27

In fairness to myself, I am an embryonic

I think it was

I'd been in considerable pain.

I

I

I

I didn't mean to violate the rule and I don't know

28

if I did that, but I'm putting it to Ms Cressy, I believe

29

the evidence of myself and Ms Locke still stands, even

30

though I didn't put a direct question to Ms Cressy on it.

31

Maybe it's of benefit for Ms Cressy in hindsight that I

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DISCUSSION

1

didn't put a question to her, because she might have

2

denied any knowledge of Mr Cockram, as Mr Cockram - - -

3HIS HONOUR: 4

You can't speculate Mr Johnson.

Let's rather move

on to what evidence was given.

5MR JOHNSON:

Yes.

6HIS HONOUR:

And - - -

7MR JOHNSON:

But I'm certainly not disputing what Mr Devries

8

says, that there was no reference to me questioning

9

Ms Cressy in cross-examination, Your Honour.

10HIS HONOUR:

Thank you.

Let's move on.

11MR JOHNSON:

Thank you, Your Honour.

Just still on the

12

credibility issues, and it goes into contributions, did

13

she have some cash that she could have brought evidence

14

to show that she contributed to my assets in any way?

15

There's a lot of confusion in the evidence from

16

Ms Cressy, and not assisted at all by Ms Cressy senior,

17

her mother as to when she started working as a

18

prostitute.

19

I've got some page reference here.

I think at p.245

20

of the transcript, Line 12.

Your Honour says to me that,

21

"You haven't noted her evidence that she started working

22

part-time", whatever that means, "As a prostitute in

23

2002".

24

prostitute in 2004".

Then, "Full-time", whatever that means, "As a

25HIS HONOUR:

2000 and, what was the second date?

26MR JOHNSON:

2004, I think Your Honour said.

27HIS HONOUR:

I think – well summarising earlier evidence given,

28

I think that Ms Cressy as one stage stated that she, yes

29

at p.120, "I commenced work", and this is my

30

paraphrasing, "I commenced work as a sex worker, part-

31

time 2002 in that capacity earning about $40,000 per

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DISCUSSION

1

annum in 2006.

2

full-time as a sex worker, and earned between 70 and

3

$100,000 per annum".

4

purposes of her evidence.

5MR JOHNSON: 6

After I finished my studies I worked

That was my paraphrasing for my own

I'm indebted to Your Honour for refreshing me on

that point.

7MR DEVRIES:

P.121, Your Honour.

8HIS HONOUR:

121 is it?

9MR DEVRIES:

With respect, Your Honour, you're pretty well

10

Yes, that's 120, 121.

accurate.

11HIS HONOUR:

Thanks,

12MR DEVRIES:

You switched a couple of phrases around, but apart

13

from (indistinct).

14MR JOHNSON: 15

Thank you, Mr Devries.

At p.247 of the

transcript, Line 22, I've got a reference now - - -

16HIS HONOUR:

247?

17MR JOHNSON:

Yes, 247, Line 22.

My notes are a little scrappy,

18

Your Honour.

There's a reference to Ms Cressy and

19

prostitution while living at 45 Nicholson Street.

20

was that my evidence, or was that Ms Cressy's evidence?

Now

21HIS HONOUR:

Just a minute.

I'll – let's have a look.

22MR DEVRIES:

It was cross-examination, Your Honour.

23MR JOHNSON:

Cross-examination.

24HIS HONOUR:

It was cross-examination.

25MR JOHNSON:

She said she started working as a prostitute in –

26

while living at Nicholson Street, as indeed she was

27

living in 2002.

28

out in my evidence in chief, the stalking behaviours by

29

Mr Cockram towards me commenced in December 2001, and

30

given that the evidence from - - -

31HIS HONOUR:

Now as my evidence, I'm sure I got this

I don't think there's any evidence of that - - -

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DISCUSSION

1MR JOHNSON:

- - -Senior Detective Jennifer Locke to the effect

2

that, to the effect that Ms Cressy had met Mr Cockram

3

before Mr Cockram started stalking her, and that

4

Ms Cressy had me Mr Cockram working in a brothel, Harem

5

International.

6

Harem International something or other.

7

exactly.

8 9

She called it something else, but it was I can't remember

That would put it that those two bits of evidence, Ms Cressy must have been working as a prostitute at Harem

10

International full-time, part-time or any other time

11

prior to the date she said in 2002 if there's any

12

consistency.

13MR DEVRIES:

Mr Johnson really should read the transcript

14

before he quotes it because then he might be able to

15

quote it accurately.

16

did she start working at Harem International and that's

17

when she said 2002, 2003.

18

nothing to do with when did she start working as a

19

prostitute.

The question she was asked was when

The question on that page had

20HIS HONOUR:

That's right.

It's p.247 - - -

21MR JOHNSON:

But, Your Honour.

22HIS HONOUR:

Two forty-seven, "Did you ever work at Harem

23

International?"

"Yes, I did."

24

working there?"

She said, "Maybe 2002, 2003."

25MR JOHNSON:

"When did you start

But there is evidence, Your Honour, from

26

Mr Johnson and Senior Detective Jennifer Locke from

27

Purana Taskforce - - -

28HIS HONOUR:

Yes.

29MR JOHNSON:

- - - that the man that Ms Cressy met at Harem

30

International was stalking her at that particular point.

31HIS HONOUR:

In 2002.

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DISCUSSION

1MR JOHNSON:

And my evidence, Mr Johnson's evidence-in-chief,

2

points to the stalking directed at Mr Johnson, who was an

3

occupant of that house, commenced in December 2001.

4HIS HONOUR: 5

Did you give evidence as to when it occurred?

I

don't recollect that at all.

6MR JOHNSON:

I believe I might - I believe I did, Your Honour.

7HIS HONOUR:

And Ms Locke was fairly vague as to dates.

8

think you led her on that, which is not - - -

9MR JOHNSON: 10HIS HONOUR: 11

I

That was a long time ago, Your Honour. I don't put that in criticism but she said, "About

2002."

So there's - - -

12MR JOHNSON:

A long time ago, Your Honour.

13HIS HONOUR:

I can't recall any evidence by you - you did give

14

evidence saying that or alleging a relationship between

15

Ms Cressy and Mr Cockram but - - -

16MR JOHNSON:

Your Honour, I do get confused in this process.

I

17

had the health problems of the first week of the trial,

18

including me rushing off to hospital on the second

19

morning.

20

financial strain for nearly two years, Your Honour, that

21

Marianne Love writes about in her report, Exhibit No. 65.

22

On top of that, with all respect to the procedures of

23

viva voce court process, it does make it a little bit

24

that when I speak to you as I now address you that the

25

special oath I swore on 7 May 1990 as an officer of this

26

court to do everything in my best abilities to assist and

27

facilitate the administration of justice, I would have

28

thought anything that I can say in this position carries

29

equal weight to if I say it in a witness box and - - -

I've also had all of the emotional and

30HIS HONOUR:

No, it does not.

31MR JOHNSON:

Because it can be used against me in evidence,

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DISCUSSION

1

Your Honour, what I say in submission from the Bar table,

2

I would have thought.

3HIS HONOUR:

You should be submitting - all you should be doing

4

at the moment is making submissions to me based on the

5

evidence hitherto given in the trial.

6

the Bar table is not evidence, just as much as what

7

Mr Devries might put on from the Bar table is not

8

evidence.

9MR JOHNSON: 10

What you say from

Your Honour, I'm raising a question of law,

practice and procedure that an officer of - - -

11HIS HONOUR:

Well, I've just answered it.

12MR JOHNSON:

- - - this court is on his feet, whether it's

13

under his oath of admission, a much more special and

14

powerful oath and binds me every day, every minute of

15

life, Your Honour, or under a common oath as a witness in

16

the box.

17HIS HONOUR: 18

Your oath is admission is to behave yourself

properly as an officer of this court.

19MR JOHNSON:

Yes.

20HIS HONOUR:

I make no observation as to your conduct and

21

whether you've lived up to that oath.

22

you gave evidence in the witness box was to tell the

23

truth in giving that evidence.

24

evidence you give is that which you gave - your evidence

25

is that which you gave when you were in the witness box.

26

You are now doing nothing more than filibustering and

27

point taking to waste time to try to fill the unfortunate

28

prediction of Mr Devries that we will still be here next

29

Thursday.

30

you can assist yourself by making a sensible submission.

31MR JOHNSON:

Your oath, when

As you fully know, the

Now, let's get back to the evidence and see if

Excuse me, Your Honour, is next Thursday the date

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DISCUSSION

1

you first gave us?

2HIS HONOUR:

I do not know.

Now, Mr Johnson, I've told you

3

before I'm not going to force you to make a final

4

address, I strongly recommend you do, but if you think

5

you can just stand there and waste my time I'll sit you

6

down.

7MR JOHNSON:

Your Honour, I will - - -

8HIS HONOUR:

Just focus on the points you want to make.

9

You've

made some useful points - - -

10MR JOHNSON:

Still completing - - -

11HIS HONOUR:

Stick to it.

12MR JOHNSON:

Still completing credibility issues, Your Honour.

13

Ms Cressy gives some evidence at p.247, Line 22, that at

14

the time she says first working at Harem International is

15

very distressed and mixed up in timing, that's all I want

16

to say, Your Honour.

17

given that she was working as a prostitute earlier than

18

that date at Harem International.

19

stories she told me of clients, members of the training

20

group of the Russian Olympic team who were billeted in

21

Melbourne, according to Ms Cressy's story - - -

It contradicts the evidence I've

I gave evidence of

22MR DEVRIES:

Which Your Honour ruled out.

23MR JOHNSON:

- - - in the year 2000 Olympics.

24MR DEVRIES:

That's irrelevant, Your Honour.

25HIS HONOUR:

Yes, thank you.

26MR JOHNSON:

I think that goes to credibility.

There's also my

27

story, the truth that I met this lady at approximately

28

2.20 a.m. on Saturday, 12 September 1998, in a brothel in

29

Geelong called "Lorraine Starr" where she was working as

30

a prostitute.

31

point but she was certainly a young lady - I later found

1.LL:DC 13/02/09 2Cressy

I didn't know her age at that particular

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159

DISCUSSION

1

out she was 19 - under the assumed name of Claudia, which

2

Boxing Day last year when I discovered her handwritten

3

semi-factional, little bit fictional memoirs, I

4

discovered Claudia happened to be the name she chose

5

because it was her confirmation name.

6

At p.249 of the transcript, Line 27, I asked

7

Ms Cressy when did she last work at Harem International

8

and she says, "A very, very long time ago."

9

Honour, at p.249, Line 27, if you would perhaps all turn

Now, Your

10

to that page in the transcript, and then she adds to

11

that, "I don't know, 2004, 2005."

12

proceeded to cross-examine Ms Cressy and asked her to

13

consult the extracts from her diary pages that showed

14

that she was indeed working at Harem International in

15

2008, August 2008.

16

commenced.

17

memory problem, Your Honour.

18

working at HI, Harem International, but three different

19

days in that one week she worked at three different

20

brothels, Your Honour.

21

ago in December 2008," she hadn't worked there since

22

2004, 2005 but she'd been there three months, four months

23

prior to stepping into the witness box, Your Honour.

24

goes to credibility.

25

Now, in - I then

That's only a few months before trial

So, there's either a credibility or a serious And not only was she

She says, "A very, very long time

It

The last point, the suggestion that she's finished

26

working, well, do we believe it or not?

27

no way I would have any evidence to - or indeed it has

28

any relevance to the case, does it, Your Honour?

29

Clearly there's

Page 248, Line 31, is Ms Cressy's story again that

30

the dingo stole her evidence.

31

Mr Devries, when I tendered Illyana Patricia Cressy's

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160

I'm very upset that

DISCUSSION

1

birth certificate, issued on 22 June 2007, said at that

2

point in my evidence-in-chief, "Oh, I need to look at

3

that, that was one of the stolen documents."

He repeated

4

his remark in this court today before lunch.

As I said

5

on the date, the date that this certificate was issued,

6

the person it was issued to over the counter must have

7

been in Australia.

8Now, if you look at those diary pages for Ms Cressy, she was 9

off in China with Mr Mark at that time.

She could not

10

possibly have been the person who purchased this

11

certificate over the counter from the Births and Deaths

12

Registry on 22 June 2007 because she was out of the

13

country, Your Honour.

14

So, once again, I am accused of be a stealing dingo,

15

a thieving lying dingo.

16

that when you've got a statutory record to prove, to

17

totally prove, that this is my document that I purchased.

18

I actually noticed looking through those diary pages that

19

there's a reference later in that month well after

20

22 June 2007 there's a little note there Ms Cressy wrote

21

something about birth certificates for all the children.

22

How wild and unsubstantiated is

Now, why would she have wrote a note to remind

23

herself to buy birth certificates if on 22 June 2007 she

24

already had them, Your Honour.

25

was a dingo, Your Honour.

26

but I think I've indicated the fact that I'm not that

27

lying thieving dingo Mr Devries has now twice accused me

28

of at the Bar table.

29

I don't think there ever

I can lead nothing either way

That in itself I think is a matter within your

30

residual inherent jurisdiction under Chapter 4 of the

31

Legal Practice Act, Your Honour.

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161

If you decline to take DISCUSSION

1

that up I will be simply, as Your Honour correctly

2

suggested, referring this bit of transcript to the Legal

3

Services Commissioner in due course.

4

to say about dingos and credibility and when did we

5

become full-time, part-time or any other time

6

prostitutes, that's just extraordinary.

7

That's all I want

I wish to turn to the other level of credibility.

8

Although in opening the plaintiff was to be the sole

9

witness for the prosecution case - forgive me, for the

10

plaintiff's case.

11

of the trial, the plaintiff's mother, another Ms Cressy,

12

gave evidence.

13

Ms Cressys, Your Honour.

14

On the, I think it was the third day

Now, credibility is an issue with both

I'd like to take you to pages of Ms Cressy Snr's

15

evidence.

I believe this was the afternoon of

16

4 December, Your Honour.

17

and totally paginated this.

18

mentioned earlier p.317 Line 26 of the transcript where

19

Ms Cressy Snr said that she first became aware Ms Cressy

20

was working as a prostitute when, I think her words were,

21

"When you were both living at Dorrington Street",

22

and I've mentioned that I think twice already this

23

morning, OK.

Forgive me, I haven't gone back There's a reference I

24HIS HONOUR:

Indeed.

25MR JOHNSON:

I think asked Ms Cressy Senior, "Well what about

26

when we were all, that's three adults and five children,

27

or three adults and six children if you want to double

28

count Ms Cressy Jnr, overall living together at South

29

Yarra", and she knew nothing about that.

30

Jnr has already admitted that she was living in my house

31

at South Yarra when Mr Cochram started – when she started

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Now, Ms Cressy

DISCUSSION

1

– well she was working at Harem at that time.

2

Now, the evidence of myself in-chief and Ms Locke

3

in-chief says that it was Harem International where

4

Mr Cochram tracked her down to South Yarra and began

5

stalking her.

6

passage in Ms Cressy's handwritten memoirs, fictional

7

factional memoirs, about being a hairist, not a racist,

8

and redheaded men are her nemesis, "He followed me home

9

from work then in South Melbourne and followed me taking

And then it's also confirmed in the

10

my kids to crèche", et cetera, et cetera, OK, all

11

confirms.

12

My evidence and also Ms Cressy Snr's

13

evidence-in-chief was to the effect that when Ms Cressy

14

was living at 5 Illoeura Avenue, Grovedale in 1998 when I

15

first met Ms Cressy Jnr, Ms Cressy Snr was living there

16

as well, along with Ms Cressy Snr's then boyfriend, a

17

young man about her daughter's age who was the father of

18

the youngest of her three daughters by three different

19

men.

20

sisters who I think is ten in June, Your Honour.

21

were all living there.

22

Ms Cressy, the plaintiff's youngest of three half They

So given that my evidence corroborated by

23

Ms Cressy's handwritten fictional factional memoirs put

24

her working at the brothel Lorraine Starr in 1998 at

25

2.20 a.m. on Saturday, 12 September 1998, to be precise,

26

Your Honour, I don't know how Ms Cressy Snr could claim

27

not to know that her daughter was working at Lorraine

28

Starr as a brothel[sic] at that time.

29

Unless of course I lack all credibility which would

30

– and my story is found untrue by Your Honour either

31

directly or by reason of Your Honour preferring an

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DISCUSSION

1

alternative story.

2

lawyers always tell the truth, prostitutes always tell

3

lies card.

4

distracted by some remarks - - -

5HIS HONOUR:

Now, I'm not going to call that

It's not for me to pull that card.

I'm being

Well I've told you before that that sort of

6

submission would simply have no acceptability with me at

7

all.

I do not judge people - - -

8MR JOHNSON:

Nor should - - -

9HIS HONOUR:

Just a moment.

I and no other judge of this court

10

would judge a person by the occupation that they have

11

outside court.

12

evidence that they give in this court, Mr Johnson.

13

also tend to judge them by how they conduct themselves in

14

court.

15

I judge them by the quality of the And I

And when they're officers of this court, I

16

particularly take a dim view of them of their

17

personality, their character and indeed their credibility

18

when they deliberately misconduct themselves and when

19

they so lower their standards as to try to belittle

20

another person because of his or her occupation and think

21

that that will have any appeal to a Supreme Court judge

22

of this court.

23

And that's how I will judge them in this case.

24MR JOHNSON:

That is how I judge people, Mr Johnson.

I'm grateful Your Honour does if that's

25

100 per cent correct as a matter of human dignity and

26

under the legal - - -

27HIS HONOUR:

You call yourself a human rights lawyer.

28MR JOHNSON:

Yes, Your Honour.

29HIS HONOUR:

You are simply an oxymoron in standing there when

30

you say that.

31

in terms when you deliberately insult another person

1.LL:DC 13/02/09 2Cressy

You are nothing more than a contradiction

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164

DISCUSSION

1

who's a litigant in this court because of their

2

occupation.

3MR JOHNSON:

I am saying I'm not pulling that card and no one

4

should, Your Honour.

What I'm saying is that a witness,

5

in this case the plaintiff, has given evidence in the box

6

which is contradicted by other evidence.

7

given by that witness in written form in the memoirs;

8

fictional, factual memoirs that are now tabled.

9

also contradicted by evidence given by a senior detective

Unintentionally

It's

10

of the Purana Taskforce, Your Honour.

I'll leave that

11

there.

12

be a question mark for Your Honour as to the veracity of

13

Miss Cressy Senior's evidence, given that she was not

14

aware that her daughter had worked as a prostitute until

15

2003, Your Honour.

And what I'm suggesting here is that there must

16HIS HONOUR:

Why would that be so?

That is to say - - -

17MR JOHNSON:

Because - - -

18HIS HONOUR:

- - - Miss Cressy had been working for some years

19

before that, just for argument's sake, as Miss Pippin

20

Cressy it's not necessary that her mother would know

21

that?

22MR JOHNSON: 23

Because they were living together in a house in

Grovedale.

24HIS HONOUR:

So?

25MR JOHNSON:

At 5 Illouera Avenue, Grovedale, from – at least

26

if not earlier than September 1998 - - -

27HIS HONOUR:

I find that argument is weak.

28MR JOHNSON:

Miss Cressy has two little boys, one only a few

29

months old and is working as a prostitute.

30

after the children?

31

they're looking after the children?

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Who's looking

Who would want explanations why

165

I put it to you that DISCUSSION

1

there's a question to be asked about Miss Cressy Senior's

2

evidence on that score, Your Honour.

3

more highly than that.

4

Senior's credibility, well, she admitted in the box that

5

she had a lease in respect of her residence at my

6

property – Mr Johnson's property, 12 Lisa Court, Hoppers

7

Crossing.

8

I want to put it no

Other issues going to Miss Cressy

She admitted in her evidence – this is under cross-

9

examination I believe that she didn't pay rent for the

10

first year because she had a big phone bill and she had

11

to buy a car.

12

which was only at half the market rental or thereabouts

13

anyway, from early March to the end of October 2007.

14

That's some seven months.

She admitted that she didn't pay rent

15HIS HONOUR:

I don't recall that but you may be right.

16MR JOHNSON:

There was an admission - - -

17HIS HONOUR:

I recall that allegation made by you at some stage

18

but I don't recall that being put to Miss Cressy in

19

cross-examination.

20MR JOHNSON:

I don't recall it.

You may be right.

I believe she admits that the VCAT Tribunal issued

21

in favour of me and ordered for possession of the house,

22

and - - -

23HIS HONOUR:

She said, at 314.

"Initially when I moved into

24

Lisa Court I did not pay the defendant rent.

I lived at

25

those premises for four years".

26

You'd have to have a look at what she said at p.314.

That's my summary.

27MR JOHNSON:

Sorry, was that 314, Your Honour?

28HIS HONOUR:

Around about there.

Now, my page references and

29

my notes sometimes are approximate.

30

didn't pay you rent for the first six to 12 months that

31

she was living there.

1.LL:DC 13/02/09 2Cressy

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She agreed that she

"Explained that in my letter to 166

DISCUSSION

1

you that I had to buy a car and there's some other things

2

I had to do that weren't part of the original set up and

3

agreement for when I moved in".

4

a phone.

Yes, and she had to get

So it's p.314.

5MR JOHNSON:

Thank you, Your Honour.

6HIS HONOUR:

So what's your point?

7MR JOHNSON:

This is a lady who doesn't respect - when a

8

gentlemen gives her a hand up by giving her a house to

9

live in at a very deeply subsidised rental basis.

10

doesn't respect that she doesn't pay the rent.

11

the first year.

12

Interesting way to live.

13

to having some mental health issues.

14

episodes.

15

She admitted that under cross-examination.

16MR DEVRIES: 17

She

Not for

Not for the bulk of the last year. Miss Cressy Senior also admits Serious depression

Some serious drug taking and alcohol problems.

To the contrary she denied drug problems.

She

didn't say she had serious mental health issues.

18HIS HONOUR:

No.

19MR DEVRIES:

She said she had depression.

20HIS HONOUR:

Some depression.

21MR DEVRIES:

Yes.

22HIS HONOUR:

That could hardly go to anyone's credit, that they

23

have depression.

24MR JOHNSON: 25

It would go to the quality of their recollections,

as to whether - - -

26HIS HONOUR:

Why?

27MR JOHNSON:

Then only in re-examination did she remember to

28

say anything to contradict her earlier evidence under

29

cross-examination, or in-chief I think, to the effect

30

that she was a tenant at that property on a very sweet

31

rental deal.

1.LL:DC 13/02/09 2Cressy

She said something about – and I'm doing

FTR:23AA

167

DISCUSSION

1

this from memory.

2

transcript, Your Honour.

3

Something like, "James and Pippin bought Lisa Court for

4

me and my two other daughters".

5

of evidence given in-chief or cross-examination, Your

6

Honour.

7

Senior's credibility.

8 9

I haven't tracked it back to the I apologise for that.

Hardly a clarification

I say there are issues about Miss Cressy I can say no more than that.

Now, let's go back to the lived with and I've said a few times that I don't have to prove where I lived or who

10

I lived with.

Miss Cressy has to make her case that I

11

lived at a particular residence, that we were both living

12

there and the nature of the living arrangements was a de

13

facto, bona fide de facto domestic relationship.

14

one of the issues is my apartment in Bourke Street.

15

it an office or was it a home where I did some office

16

work from?

17

that I did have staff coming in a few days a week.

18

Honour has an exhibit now which shows the floor plan

19

basically, 59A, which when I re-entered the box I

20

confirmed as an identical plan to 2502 apartment to 2302

21

apartment.

Now, Was

Now, there's no doubt in my evidence-in-chief Your

22

Now, as I said in my evidence-in-chief the first

23

time round, for much of my working life I have had two

24

offices; two main clients funding my practice.

25

a two client firm, Your Honour.

26

clients' offices where I'd have an office set up.

27

Treated like an in-house employee, Your Honour.

28

believe I tendered or tried to tender a Primelife firm

29

list to show that I'm Extension 3407, Your Honour.

30

been Extension 334 at Barwon Water for nine years, Your

31

Honour.

I've been

I would go to my

I

I've

I had no need to have an office set up in my

1.LL:DC 13/02/09 2Cressy

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168

DISCUSSION

1

apartment.

I'm spending most of my working hours in a

2

fully functional legal office within a listed company.

3

I said in South Melbourne, but originally they were

4

actually in Collins Street, corner of Collins and William

5

when I first moved into 909.

6

four days a week to get to Primelife.

7

would drive down to Geelong on a Wednesday and I had my

8

office down there.

9

909, it was purely residence Your Honour.

10

So I'd walk half a block, Barwon Water, I

I had no need to have an office at

I didn't give the detail on all of this, but it gets

11

to - skating to the edges of relevance, but yes I did

12

have staff coming into work in my office that I have set

13

up at 909.

14

multi-task, my couches pull out as beds of an evening

15

when I need them.

16

Honour.

17

There were two bedrooms.

I don't do beds, I

I'm an extremely tidy man, Your

You've got the dimensions and the luxury of my

18

Sub-penthouse 2302, from that plan, Exhibit 59A.

19

just drop down three levels and in there that's what I

20

have.

21

Whether it was or wasn't my home means absolutely

22

nothing.

23

Honour that I haven't given any evidence about.

24

You

I don't have to prove that it was my home.

I could have had a home somewhere else, Your

The plaintiff has to demonstrate that I lived at a

25

particular place, we both lived at that place and the

26

nature of the arrangements were a bona fide domestic

27

couple.

28

the two years - plus two years as required by s.285.

29

fails on each of those and given that she fails to show

30

any monetary contribution, which in the Baumgartner - the

31

Baumgartner error, 1987 was going to be the only way that

I'm telling Your Honour, she fails in terms of

1.LL:DC 13/02/09 2Cressy

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169

She

DISCUSSION

1

a lady and her de facto could actually get some equity in

2

the outcome.

3

My recollection, and I'm going back to 1984 property

4

law lectures before Mr Gimtay my lecturer, was that there

5

was nothing equivalent to Part 9 of the Property Law Act.

6

Now I may have a false memory.

7

1984 and so that a lot of those constructive trust cases,

8

including a homosexual case, the name I can't remember,

9

that Mr Justice fully gave it the short shift for reasons

This is going back to

10

perhaps he shouldn't, dealing with people's sexual

11

orientations.

12

The only way to get some equity in these sorts of

13

domestic living arrangements was by a constructive trust

14

only.

15

that it favours a constructive trust is a little bit

16

skewed, because that was the only path to redress an

17

inequity.

18

statutory Part 9 process as an alternative for a humane

19

method of addressing that sort of inequity was in

20

Baumgartner v. Baumgartner.

21

So the Baumgartner v. Baumgartner to these and

My recollection was that there was no

In terms of - I don't have to prove I lived at 909

22

and 2302 but I did, Your Honour.

23

it's what the managing agent said and to this the

24

evidence is very famed because no one jumped up and said,

25

"Yes I used to visit Mr Johnson regularly and I saw", no

26

one did that.

27

see and it wasn't abnormal.

28

was his managing agent when he was at 909.

29

really see him at 2302 but I knew he moved", because she

30

changed roles within her company.

31

inspections, yes I had desks.

1.LL:DC 13/02/09 2Cressy

This is what I said,

They all saw things that they expected to

FTR:23AA

170

Ms Briggs said that "Yes, I I didn't

She did the

Certainly, I had one room DISCUSSION

1

that was exclusively set up as a study, as an office.

2

It's where my PA came in a couple of days a week, but I'm

3

leading evidence from the Bar table, Your Honour.

4

The other room - student bedroom.

I believe I said

5

in evidence, you know where the couch that pulled out,

6

and a desk and the living area with the big wall screen

7

television that my children loved playing their

8

Playstation games on.

9

couch that folded out as well.

Bigger than real life.

It was Park Avenue living

10

and for my little darlings, they loved it.

11

it.

12

That had a

This is the Queen Street neighbour.

They loved

This is

13

interesting.

14

How does Ms Cressy prove that I lived at that place.

15

didn't she call any neighbours as witnesses?

16

socialised in this fantasy relationship for nine years,

17

we don't have any videos of children's parties or my 40th

18

party, or anything like that, what about the next door

19

neighbour.

20

suspicious, Jones v. Dunkel presumptions.

21

witness that should've been called must have been no good

22

to the case because they would've presented negative

23

evidence.

24

We're flicking back to the other scenario.

Not called, Your Honour.

Why

If we never

Isn't that Well, a

I did call a witness - as a witness a neighbour to

25

the property at 166 Queen Street.

26

very strange circumstances well after the date that the

27

relations that Ms Cressy and I had, had soured.

28

met in October 2007 and there was a lot of debate about

29

whether we did meet or had met before.

30

seen her at the house in Queen Street but I had been

31

visiting and she was visiting.

1.LL:DC 13/02/09 2Cressy

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171

A lady that I met in

A lady I

I had certainly

She gave quite a bit of DISCUSSION

1

evidence.

2

We covered this when I was giving evidence in chief

3

and when I was questioning Ms Dek-Fabrikant and there was

4

a lot of issue about a statement that Ms Dek-Fabrikant

5

made to my former lawyer, Ms Kelly and in the end, rather

6

than getting the full statement in evidence, and I don't

7

know why it wasn't wholly admissible, Your Honour, some

8

certain paragraphs of that statement were read out.

9

the gist of what Ms Dek-Fabrikant said was that she was a

10

regular visitor to 166 Queen Street, to the Cressy family

11

household who lived there.

12

And

She was aware of my existence in some gate sense.

13

Her impression was that I was a visitor and the Cressy

14

children used to love and come and stay with me in my

15

house in the city.

16

Mr Kevin Enright, the principal of the school, he

17

didn't socialise with us.

18

saw what appeared to be a Mum and appeared to be a Dad

19

and three kids.

20

presume.

21

He didn't assume anything.

He just presumed what any person would

Jennifer Locke - the senior for Jennifer Locke, she

22

smiled with a little whoopish grin, and said in the

23

witness box, "You were definitely a couple".

24

in late 2003/2004.

25HIS HONOUR: 26

Now this is

That's - - -

I didn't think she said that, she said she

appeared to you - to her to be a couple - - -

27MR JOHNSON: 28

He

Yes, Your Honour, but if you put it in its

timeframe we're talking early 2004.

29HIS HONOUR:

Yes.

30MR JOHNSON:

That's not relevant to the plaintiff's case in the

31

minimal that she must meet to present a case for me to

1.LL:DC 13/02/09 2Cressy

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172

DISCUSSION

1

answer.

She has to show that we were living - her and I

2

at a place together in a domestic, bona fide relationship

3

(indistinct) two years prior to 26 November 2007 when she

4

issued the writ.

5MR DEVRIES:

Your Honour perhaps - - -

6MR JOHNSON:

That means 26 November - if I may be allowed to

7

continue without interruption, 26 November 2005.

Miss

8

Locke's involvement goes back to - what was the date of

9

the intervention order, 22 January 2004.

That's 18

10

months, not more than that, prior to the relevant window

11

in terms of making a case under s.285 of the Property Law

12

Act.

13

advocate, i.e. if I'd thought of this at the time not an

14

hour after court closed on 9 February - 9 February, yes,

15

Your Honour, "Miss Locke did you ever attend any social

16

functions where the plaintiff and Mr Johnson were

17

together appearing as a couple?".

18

answer would have been.

19

be leading evidence from the Bar table.

20

where did these interviews take place?".

Further - now if I hadn't been such an embryotic

You know what the

I can't give it because it would "Miss Locke,

21MR DEVRIES:

This is totally irrelevant.

22HIS HONOUR:

What's this got to do with it Mr Johnson?

23MR JOHNSON:

I'm telling you that there are no witnesses, apart

24

from Miss Cressy's senior - - -

25HIS HONOUR:

Well I think the point you're making is Miss Locke

26

only had a very limited opportunity to make any

27

observation about whether you were a couple or not.

28

That's the short point you're making.

29MR JOHNSON:

Yes, Your Honour.

30HIS HONOUR:

All right, well just make it shortly.

31MR JOHNSON:

And it is emphasising the fact that Miss Cressy

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173

DISCUSSION

1

hasn't produced any evidence - nothing documentary to put

2

me as even living at 160 (indistinct) Street.

3

very simple answer of why she has no such evidence

4

leading from the Bar table (indistinct) be saying it, but

5

she doesn't have a case I'm living there.

6

living there at June 2006 when I moved her into the

7

house, I'm living in my apartment 909.

8 9

I know the

Now if I'm not

Now that takes up June 2006 to November - sorry May - I need to track back and say that well, all right, if

10

she's lost there, June 2006 I'm not living there, she

11

should have issued her - she was still OK, she had to

12

issue proceedings before June 2008, which she did, OK.

13

But she's still got to show a two year relationship of me

14

living at Point Cook with her in a bona fide domestic

15

relationship for two years prior to June 2006, OK.

16

mere fact that I wasn't living at Queen Street with her

17

in de facto relationship, or even living there at all

18

Your Honour, if you make that finding it doesn't destroy

19

her case.

20

destroy her case.

21

survive if she can show that I lived at Point Cook for -

22

in a - for two years - June to - June/July 2004 to

23

June/July 2006.

24

I - from July 2003 I was living in Bourke Street

25

Melbourne.

26

case that I was living at Dorrington Street for the two

27

financial years 2004 to 2006.

28

The

It destroys her credibility, and that may Her credibility and her case may

Now the difficulty there is Your Honour

So she then has to - she has to prove her

Now where's her evidence, where's the neighbours

29

from Dorrington Street, where's the social functions et

30

cetera?

31

that you would expect, those videos, those cards, they're

There's nothing Your Honour.

1.LL:DC 13/02/09 2Cressy

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174

Those witnesses

DISCUSSION

1

not there.

So she fails to make her case if I'm mute on

2

the issue.

I explained where I was for that period, so

3

she's got the added burden not only making her case,

4

she's got to dismiss my case.

5

exciting thing I think, and this is Exhibit F, the Kelly

6

factor.

7

This brings me to the very

A copy of the affidavit sworn by the defendant in

8

the Federal Magistrates' Court on 13 September 2007.

9

According to Federal Magistrate Damien[sic] O'Dwyer I

10

could be looked up for three years for having this

11

discussion with you right now Your Honour, because I'm

12

referring to a document that came of the Federal

13

Magistrates' Court.

14

the interim orders of 9 September 1998, but the final

15

orders of 6 February 2009.

16

2008 of course.

17

Now this is an amazing document, it's a document that was

18

prepared as I said in evidence in cross-examination -

19

under cross-examination of Mr Devries I believe, it was

20

prepared by Miss Kelly.

21

If you look at the words - I don't actually have the

22

affidavit in front of me, but it says something along the

23

lines of that between a lengthy period - - -

24MR DEVRIES: 25

I'm in violation of - well no longer

Sorry, I said 1998, I meant

The decades fly quickly Your Honour.

It was prepared in some haste.

I'll hand him a copy Your Honour so he doesn't get

it wrong.

26HIS HONOUR:

Yes, thanks Mr Devries, I'm grateful to you.

27MR JOHNSON:

There's an excess of caution but I'm grateful.

28HIS HONOUR:

Paragraph 2, "I commenced a relationship with the

29

respondent".

30MR JOHNSON:

Yes, a relationship, what sort of relationship?

31HIS HONOUR:

In November 2008 - (4) "the respondent and I have

1.LL:DC 13/02/09 2Cressy

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175

DISCUSSION

1

lived or partly lived together from December 98 to Jan

2

99, and from May 99 to June 2007".

3MR JOHNSON:

Yes, yes, and as I said in evidence-in-chief, I

4

did spend a few nights over Christmas 98 as a visitor

5

over-nighting with Miss Cressy junior and her two little

6

boys, and that was when I met her mother.

7

pregnant at the time, I didn't know.

8

junior's younger of two half sisters, and the then

9

boyfriend and the dad of Miss Cressy's youngest - sorry,

Her mother was

Miss Cressy's

10

the youngest of the three girls to Miss Cressy senior.

11

OK.

12

doesn't really say anything.

13

lawyer - Miss Kelly does claim to be an accredited family

14

law specialist.

15

charges at a - has a very high charge out rate.

16

commenced a relationship, what sort of relationship?".

17

I'll come back to that.

18

Paragraph 4, "The respondent and I have lived or partly

19

lived together from December 1998 (indistinct).

20

December 98 to January 1999,

21

This paragraph is gobbledygook Your Honour, and it It was written by a family

I hope I got that right.

She certainly "You

That was in Paragraph 2.

OK,

I look at that again and I don't like that, because

22

it says, "Lived or partly lived".

23

referring in my evidence to the sleeping over bits, and

24

Ms Cressy and the children would come and spend a weekend

25

with me at Gheringhap Street.

26

living or partly living?

27

the connection that you've had in the three little

28

children's lives, it's easier talked up a little.

29

Now that's kind of

Does that constitute

When you're very keen to make

The January 99 to the May 99, there's a gap.

That

30

was the period with no communication between Ms Cressy

31

and I whatsoever, OK.

1.LL:DC 13/02/09 2Cressy

FTR:23AA

Then the June 2007. 176

Now I don't DISCUSSION

1

know why that June 2000 – in April, May, June 2007 was

2

picked.

3

thought it would be.

4

This wasn't actually the affidavit that I

The difficulty I have here, Your Honour, is my

5

recollection is of another, I think another affidavit

6

which has very similar words.

7

respondent lived with me, or partly.

8

lived with the three children and the respondent

9

basically during those periods.

10

The three children and the I lived or partly

What I wish to say about that statement was well it

11

is true that I partly lived – sorry I did live with the

12

respondent during that period that we were at South

13

Yarra, and the little period at Dorrington Street.

14

The children continued – I continued to partly live

15

with them to the extent that they stayed with me over

16

that elongated period, including the periods when

17

Ms Cressy went overseas as per my evidence in chief, to

18

work in (indistinct) in Amsterdam, or to take the older

19

of the boys on a holiday to Singapore when the two little

20

ones would stay with me at the house in South Yarra, OK.

21

That was the first point I wanted to make.

22

The other point I want to make is Ms Cressy and I

23

had a relationship, there's no doubt about that.

24

have conceived a child, although Ms Cressy has protested

25

in every court of the land my request for DNA testing,

26

and the child's nomenclature doesn't have any reference

27

to my – me or my ancestors either.

28

We may

The word 'relationship', relationship, people can

29

live together for a variety of reasons, Your Honour.

30

What was the nature of my relationship with Ms Cressy?

31

When she was living with me at South Yarra, were we

1.LL:DC 13/02/09 2Cressy

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177

DISCUSSION

1

living as brother and sister?

2

wife?

3

age difference?

4

Ms Cressy and I is pretty close to the age difference

5

between Ms Cressy and her oldest child.

6

younger than the other.

7

Were we living as man and

Were we living as father and daughter given the Where are – the age difference between

One's slightly

Were we living together as employer and employee?

8

Were we living together as friends?

Were we living

9

together because I was her benefactor, because she was

10

out on the street from the Salvation Army with three

11

little children who had nowhere else to go?

12

a big tick in my evidence, Your Honour.

OK, that one

13

Were we living together as pimp and prostitute?

14

suggestion was put to me under cross-examination from

15

Mr Devries.

The

I put it to you that - - -

16HIS HONOUR:

I don't recall that.

17MR JOHNSON:

I put it to you that (indistinct) - - -

18HIS HONOUR:

What I do recall in your cross-examination was

19

that you made the concession that reasonable minds may

20

conclude that at least during that period you did have a

21

domestic relationship as defined in Part 9 with the

22

plaintiff.

23MR JOHNSON:

I said that reasonable minds could differ on that,

24

but my opinion is we did not, Your Honour.

25

– Peter Cockram experience, the Senior Detective Jennifer

26

Locke experience, all that counts against her.

27

Honour, I was barely ever at the house.

28

-

29HIS HONOUR:

I think that

Your

I'm working - -

You've been asking a series of irrelevant

30

rhetorical questions given the concession you made in

31

your cross-examination.

1.LL:DC 13/02/09 2Cressy

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178

DISCUSSION

1MR JOHNSON:

I'm sorry Your Honour.

2HIS HONOUR:

Move on.

3MR JOHNSON:

I'm sorry, Your Honour, I missed that point

4

because I was on to the next matter.

My point is

5

Your Honour, that Ms Cressy and I occupy the same house,

6

but there are a number of reasons to explain that.

7HIS HONOUR:

If they're not in the evidence - - -

8MR JOHNSON:

Ms Cressy - - -

9HIS HONOUR:

If they're not in the evidence now I won't accept

10

them.

11MR JOHNSON:

But it is Ms Cressy, she can't simply point to the

12

fact that she lived in a house with that person.

13

Ms Cressy senior lived in that house with me.

14HIS HONOUR:

Yes.

15MR JOHNSON:

Ms Cressy senior lived in the house at Point Cook

16

with me.

17

Am I in a de facto relationships with both of them?

18

Your Honour.

19

relationship can mean a lot of things.

20

relationship with you, Your Honour, and given the power

21

that you have, I will need a (indistinct) - - -

22HIS HONOUR: 23

I'm in relationships with both of them, but I discussed my

We do not have any relationship, that I can assure

You have a very powerful relationship over me,

Your Honour - - -

26HIS HONOUR:

I do not.

27MR JOHNSON:

(Indistinct) my children, my descendants.

28

No,

you.

24MR JOHNSON: 25

OK, I had two Ms Cressy's living in my house.

My

future and my present, and you can even (indistinct)- - -

29HIS HONOUR:

You're talking nonsense, Mr Johnson, now move on

30

and address if you have an issue.

31

you're making about South Yarra and the evidence was that

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179

Your point I think

DISCUSSION

1

there were a number of people living at the premises at

2

South Yarra.

3

against there being a domestic relationship between

4

yourself and Ms Pippin Cressy.

5

isn't it?

It wasn't at which it militates you say

That's your point,

6MR JOHNSON:

Yes, Your Honour.

7HIS HONOUR:

Right.

8MR JOHNSON:

Also it's the burden of proof point.

9 10

Merely

saying I lived in the same house as that man doesn't – a foregone conclusion we were de factos.

11Particularly when there are other reasons in the evidence to 12

explain how you can live under that same roof.

13

evicted from the house you'd been in for nearly three

14

years by the Salvation Army and unable to find anywhere

15

else for yourself and your three little children,

16

knocking on the door of the alleged father of the

17

youngest three, that would be a pretty strong reason why

18

I allowed Ms Cressy and the three children, took them in

19

with me, away from Grovedale when I moved from Gheringhap

20

Street up to South Yarra, Your Honour.

21

And being

All of that's in the period that's outside of the

22

two years plus two years, strictly the bare minimum that

23

the plaintiff has to demonstrate to prove her case.

24

again the point is that the plaintiff has to demonstrate

25

the case that the living together was on a bona fide

26

domestic basis.

27

Cochram relationship.

28

I am an embryonic advocate and I was under a lot of

29

emotional, medical and financial distress even while that

30

first week of the trial was unfolding.

31

But

Now, there's other evidence, the Peter Not presented in the best way but

A couple of questions perhaps, a failure to

1.LL:DC 13/02/09 2Cressy

FTR:23AA

180

DISCUSSION

1

cross-examine the plaintiff brought about by the fact

2

that I thought this court proceeded on the basis that all

3

the documents filed (indistinct) the body of evidence.

4

thought the judge read the depositions, Your Honour.

5

That's what they do, my limited experience is, in the

6

Federal Magistrates' Court.

7

reads all the depositions.

8

meant to be.

9

I

A federal magistrate And they growl if they're

I had no idea until I was already in the box,

10

Ms Cressy was well in the box, more than 24 hours, that

11

that whole body of what I regarded as evidence before the

12

court wasn't actually before the court at all.

13

that's – I think that's all I need to say about

14

Exhibit F.

15

OK,

OK, moving on, this is something that comes out of

16

Your Honour's judgment of 48 hours ago.

17

that the plaintiff may have had a right to come to

18

Dorrington Street, Point Cook and remove fire boxes of

19

documents and mobile phones, et cetera, et cetera.

20

The suggestion

Even on that issue of where you're looking, Your

21

Honour, at whether if the plaintiff by counterclaim could

22

establish the evidence is there a case to answer, I think

23

credibility comes into it.

24

things.

25

process up to that point, including the bizarre,

26

Mr Johnson's a solicitor of 18 years' good standing but

27

he's a crazy person, that's mental capacity and therefore

28

legal capacity I'm sprung on that notice.

29

discovery according to the rules - - -

30HIS HONOUR: 31

I think there were three

The witness' credibility, the defective court

The lack of

We've been through all this four or five

times - - -

1.LL:DC 13/02/09 2Cressy

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181

DISCUSSION

1MR JOHNSON:

I think that infects - that infects - - -

2HIS HONOUR:

At least Mr Devries - - -

3MR JOHNSON:

Thank you, thank you.

I'm glad I'm being listened

4

to, Your Honour.

I think that infects the analysis that

5

Your Honour has to go through in terms of the plaintiff's

6

claim about me about my simple statement that she doesn't

7

have a case I even need to defend and therefore it speaks

8

for itself that if we've got to trial and at the trial

9

stage and completion of the – there's no case for me to

10

answer, gee, suggest an ulterior purpose, Callinan's

11

motivation.

12

It's one thing to actually state in writing as

13

Flower and Hart and Dr Ian Callinan did that there's no

14

substance to the case that you're bringing, the

15

plaintiff's bringing, but I think it's much the same

16

thing if you get to the point where you're up and running

17

and it's on the basis well let's hope we get some

18

evidence before we go to trial boys or look, we really

19

should be aware that we don't, we haven't done the

20

enquiries, we don't have the evidence.

21

itself, Your Honour.

22

It speaks for

And just like, forgive me, Your Honour, but I don't

23

know how you could decide on the no case to answer for

24

the defendant's, second and third, by counterclaim

25

without hearing the submissions and without looking at

26

issues of witness credibility, the embryonic nature of

27

all of the pleadings, my defence and counterclaim half

28

baked as all counsel, I think, admitted except perhaps

29

Mr Devries and the defective process by which this was

30

brought to trial, set down on a scandalous estimate of

31

two days' duration, set down without affidavits of

1.LL:DC 13/02/09 2Cressy

FTR:23AA

182

DISCUSSION

1

document or interrogatories or either party settling

2

their pleadings.

3

being amended two to three days into the trial,

4

embryonic, Your Honour, defective process.

5

that fourth level of credibility in the way the

6

plaintiff's case deriving from the way that her legal

7

representatives have run it.

8 9

The plaintiff's statement of claim

As I say,

Now, we look at Ms Cressy's allegation.

Her

credibility not even cited as something to be considered

10

in the judgment Your Honour handed down 48 hours ago.

11

I'm upholding a no case to answer on the application to

12

strike out my counterclaims against the 2nd and 3rd

13

defendants.

14

impressive word to put to half baked pleadings, Your

15

Honour.

16

As I said, counterclaims is a pretty

Forgive me, Your Honour, but that involves

17

prejudging the very issue in the main process.

18

plaintiff claims that I'm stalking her.

19

(indistinct) claims of stalking.

20

President Barack Obama's grandfather, where's the proof?

21

Who has the burden of proof?

22

written down like Dr List, oh, Mum, says this so whatever

23

Mum says.

24

there.

25

The

Evidence

She could claim I'm

Can it be just assumed,

That's an aspect that Mr Johnson conveyed

I couldn't believe these words.

I'm Barack Obama's grandfather.

Dr List would say

26

well it's been said about you, this is an aspect of you

27

in that – conveyed in that.

28

burden of proof when making those allegations when the

29

opening position would be that she's not justified to be

30

there.

31

documents that she took.

Surely the plaintiff has a

She jointly claims ownership of those boxes of

1.LL:DC 13/02/09 2Cressy

FTR:23AA

Well can we test that? 183

None of

DISCUSSION

1

those documents were used in part of the plaintiff's

2

case.

3

documents.

None of them were attached to affidavit of

4

The plaintiff's guys had as much access, more

5

access, to those documents than me and they could afford

6

the 20 cents a page to photocopy them from the Federal

7

Magistrates' Court.

8

to the case?

9

affidavit of documents, the ones that she stole that she

I couldn't.

Were they even relevant

Well the documents attached to her

10

held back and were not given over to the police who

11

thought they collected everything, attached to her

12

affidavit of documents.

13

look at them, they've got no relevance to the Federal

14

Magistrate Court proceedings, they've got no relevance to

15

these proceedings.

16

How could they - how could they be jointly owned

17

documents?

18

interest on them?

19

property?

20

and at one stage Ms Cressy said under cross-examination,

21

I think the question from

22

Ms Sofroniou, p.206, Line 27 of the transcript, she

23

explained to Ms Sofroniou, p.206, Line 27, "It was a

24

joint property I'd just moved out of."

25

moved out of, she told Ms Sofroniou, when she went back

26

on 17 November 2007.

27

does she say anything but she let the property in June

28

2006 and moved to Altona, OK?

29

from the 6th month to the 11th month, 17 months.

30

just moved out 17 months ago?"

31

describes an event that happened 17 months earlier.

1.LL:DC 13/02/09 2Cressy

Your Honour, if you'd care to

Where's her name on them?

Where's her

Did she have the right to be at the

Well, that begs a really interesting question

FTR:23AA

So, she had just

Now, low and behold, where else

184

June 2006, June 2007, go "You've

"Just moved out," she

DISCUSSION

1

That's how she described it to Ms Sofroniou.

2

have a right to be there?

3

that property in the interval, tenants that were in a

4

long term lease and were kind enough to move out for me,

5

I'm leading evidence from the Bar table, and I had moved

6

back into that house.

7

Did she

Your Honour, I had tenants in

It is in my evidence-in-chief that I was living in

8

that house on that night in 2007 when she came in and

9

aggravatedly burglared me doing some sort of anti-

10

discovery process.

11

prove her case.

12

office for documents that might have something to say

13

about her income that she might have contributed to me

14

and my properties?

15

documents that might have something to say about her

16

income that might have contributed to me or my assets?

17

Why didn't she write to Harem International or Gotham

18

City or Le Boudoir or Lorraine Starr or several other

19

brothels that I haven't even bothered to bring in

20

evidence about, most of which I don't even know their

21

names, Your Honour, escort agencies, Paramour, that's a

22

cute one.

23

write to all those people and ask for copies of payslips

24

if she wanted documents that might be helpful to her to

25

make a case that she had some income?

26

would have done, Your Honour.

27

somehow that income to my properties or to me.

28

didn't do any of that.

29

dingo, she jumped over the fence and she stole some

30

documents.

31

right to be there, I'd only just moved out," 17 months

1.LL:DC 13/02/09 2Cressy

She was looking for documents to

Why didn't she ring or write to the tax

Why didn't she write to her bank for

Paramour, what's a paramour?

Why didn't she

And that's all I

She's then got to link

What did she do?

She

She played

She then tries to say, "Well, I had every

FTR:23AA

185

DISCUSSION

1 2

earlier, Your Honour. Now, how many issues I've discussed with you today

3

does that go to?

It goes beyond credibility, Your

4

Honour.

5

don't, I don't know whatever will, Your Honour.

6

joint assets?

7

a relationship?

8

contents of the document, does it bear, is it evidence?

9

No, nothing, nothing relevant.

Does it go to contempt and perjury?

If it Are they

Well, it begs the $64 question, was there Was it a de facto relationship?

The

I mean of the aspersions

10

about me for not running down to the Federal Magistrate's

11

Court and using all my 20 cents to copy my documents, I

12

don't need my 95 tax return, Your Honour, for those

13

proceedings or these proceedings.

14

card statements from 2003, that's ridiculous, ridiculous.

15

I don't need to credit them.

I don't need my credit

16

OK, let's get onto something, something that smacks

17

of the language of a Part 9 application, Your Honour, the

18

word "contributions".

19

prove an income and some contributions but even if she

20

fails, as she must, on the living together, let alone the

21

living together on a domestic basis, the diary and the

22

memoirs, is that a domesticated woman?

23

duty person?

24

to the domestic family situation of the Cressy household

25

at 166 Queen Street, Altona.

26

get up on the pre Part 9 avenue, Baumgartner v.

27

Baumgartner, but she has got to show some contributions.

28

If we're not living together she can't claim through her

29

dutiful domesticity a contribution to the pool through

30

home duties, Your Honour, OK?

31

She's got to prove that to get a Baumgartner v.

1.LL:DC 13/02/09 2Cressy

Now, of course, Ms Cressy has to

Is that a home

The evidence from a mystique fabricant as

FTR:23AA

186

She fails on that.

She may

We aren't living there.

DISCUSSION

1

Baumgartner as Mrs Baumgartner did in 1987.

2

Let's look at her claims of contributions, oral

3

claims, Your Honour, depending entirely on her

4

credibility in giving them, OK?

5

contributions by raising kids.

6

ain't mine, Your Honour.

7

little one and the next little one always told that they

8

were mine and that was beyond - it's beyond doubt, it's

9

not contested that the middle one, raised up until

10

October 2007 to believe he was mine, he had me as a

11

birthright, not as a gratuity from my generous heart,

12

they're her kids, Your Honour.

13

Honour.

14

backtracking a little because there is a note in the

15

transcript which says, "James is never there."

16

good reason I was never there.

17MR DEVRIES:

She gives evidence of Well, two of her kids

The little one maybe.

Both the

I was never there, Your

Where does she say I was never there?

I'm

There's a

I concede, to speed this matter up and in the hope

18

that we might finish this side of next Christmas, that

19

she did say that he worked long hours and that he was

20

more often than not, not there when the children went to

21

bed and that he wasn't there when the children got up in

22

the morning.

23HIS HONOUR:

Yes, I recall that evidence, in fact, it's one

24

area where they were in common accord, that was that he

25

worked very long hours.

26MR DEVRIES: 27

Yes, I think it's about one of the few things they

agreed on, Your Honour.

28MR JOHNSON:

Your Honour, I was a very loving - - -

29MR DEVRIES:

And that he did earn a lot of money at one stage.

30HIS HONOUR:

And the other thing that was agreed on was that

31

the three children have a very warm relationship with him

1.LL:DC 13/02/09 2Cressy

FTR:23AA

187

DISCUSSION

1

and they regard him as their father.

2MR DEVRIES:

Yes, she went beyond stepfather and said - - -

3HIS HONOUR:

Yes.

4MR DEVRIES:

- - - that they treated him as their dad.

5HIS HONOUR:

Yes.

6MR JOHNSON:

And it's very interesting that the evidence in the

7

Family Court has me as some, what's the words, drunken,

8

violent, drug taking - - -

9HIS HONOUR: 10MR JOHNSON: 11

I'm not interested in that evidence. - - - incestuous paedophile, Your Honour.

That's

the story being told to - - -

12HIS HONOUR:

I'm not interested in that, Mr Johnson, the

13

evidence I've had before me is to the contrary, that both

14

of you said that you have bonded well with the children

15

and in fact that stands to your credit that somehow in a

16

busy life you've nonetheless managed to assume the role

17

as a father to the three children.

18MR JOHNSON:

Pretty good for a man who didn't live in the

19

household and there's no evidence that I did live in the

20

household, Your Honour.

21

September 2007.

A mail redirection notice from

That's pretty silly.

22

Her earnings - sorry.

23

The evidence I mentioned from Miss Dek-Fabrikant, I

24

believe she says a few brief things about the domestic

25

life of the Cressy family when they were living at 160

26

Queen Street.

27

The supervision or lack of supervision of the children.

28

I believe she made a few remarks.

29

5 December, Your Honour, in the morning.

30

finding the property.

31

earnings.

1.LL:DC 13/02/09 2Cressy

The condition of the house, et cetera.

(Inaudible.)

The roles in

Sorry, I'll go back.

Show me the evidence of earnings. FTR:23AA

188

It was

The The thing I DISCUSSION

1

didn't steal from the Tax Office.

2

finding.

3

It's just her word and her word has no credibility.

4

Show me the evidence.

Role in the property Show me the evidence.

She says that she was working part-time and then

5

full-time in 2004.

And then she began working

6

(indistinct) worker full-time.

7

between part-time and full-time is for that sort of

8

industry, Your Honour.

9

is for our industry, Your Honour.

I don't know the decision

I don't know what the distinction Am I full-time or

10

part-time or double-time or triple-time.

11

said, we must get used to going three days successive

12

with the luxury of almost three hours sleep.

13

part-timers.

14

triple-timers, Your Honour.

15

earnings?

16

she contributed to the acquisition of properties.

17

As Your Honour

We're way beyond full-timers.

We're not We're

Show me the evidence of your

The interesting thing is she's claiming that

Now, if she had no cash flow till 2004 by that point

18

I had acquired Dorrington Street, Point Cook.

19

chronological order, 12 Lisa Court and 10 Hawkers Court

20

in the one hit.

21

only a couple of months after the Point Cook house was

22

completed, and I'd also purchased the block of land that

23

I contiguously faced into Dorrington Street, which was 7

24

Inverloch Drive.

25

had any cash flow or anything to claim, if you accept her

26

credibility on this point, that she had (indistinct).

27

how did she contribute to the acquisition, Your Honour,

28

out of her cash?

29

This is in

Those houses were actually completed

I had acquired all of those before she

So

Couldn't.

I also then I think in 2005 signed the contracts for

30

Gibson Street, Caulfield, and that turned out to be 112

31

or 113 per cent bank funded.

1.LL:DC 13/02/09 2Cressy

FTR:23AA

189

I get $11,000 back over the DISCUSSION

1

mortgage.

2

pre-settlement period from then to June 2006.

3

didn't contribute anything to the acquisition.

4

didn't assume the mortgage obligations because she's not

5

and never would've been, and for very good reason, a

6

party to any of my land documents.

7

She's got no equitable interest.

8

in the properties whatsoever.

9

I'm not living with her.

10

I got another 7000 in rent in the So she She

Why would she be? She's got no interest

Why would she be down?

I'm giving her money as a child support with subtle

11

overtones of blackmail.

12

clearly hasn't contributed any cash to – even if we

13

accept for the moment her credibility that she has the

14

cash flow to do it.

15

different; the Queen Street one?

16

though the last one.

17

claiming against the house I bought in December 2007 at

18

Torquay.

How could she have conceivably have contributed

19

to that?

The cash for that came out of my borrowings

20

over 2007.

21

OK.

OK, five of the six.

She

Why is the last one any Clearly – actually

So many claims amended.

She's

The $2m that I was assessed as credit worthy based

22

on my financials and loan applications by the

23

Commonwealth Bank.

24

earlier than that, many months earlier than that but it

25

hit a snag.

26

to David (indistinct) and saying, "The property is under

27

contract".

28

$2m deal to set up to acquire three more properties.

29

Didn't contribute anything to (indistinct).

30

one that – if we assume credibility and if she has an

31

income and she had some earnings is Queen Street.

1.LL:DC 13/02/09 2Cressy

It had been assessed many years

It's the contracts referred to in my letters

Was a big refinancing, additional financing;

FTR:23AA

190

So the only

DISCUSSION

1

Again, where's the documentation?

The documentation

2

shows it's all mine.

3

properties this is one that she actually had some

4

information about before I bought it.

5

she was my employee and I've given payslips.

6

an office working person.

7

keep her occupied.

8

the street but out of the brothel, which I was prepared

9

to believe she was.

10

OK.

11

Trump, Apprentice.

12

I say, well, yes, of all of my

And I say, yes,

Something to do.

She's not Something to

Something to keep her not so much off

She was clean for a number of years.

I'll teach her a bit about, you know, the Donald

I mention that in either evidence-in-chief or in

13

puttage or in cross-examining.

14

puttage or under cross-examination of myself by Mr

15

Devries.

16

Again, where's – forget about the tax returns.

17

the bank statements?

18

was her money?

19

negotiations.

20

apprentice to play good cop.

21

I knew that the people I was negotiating with bought the

22

property in 1986 for about 86,000 or so.

23

there a long time and it was debt free, so they weren't

24

encumbered by a mortgagee that they had to satisfy.

25

had much greater liberty to drop on price.

26

OK.

Sorry, Miss Cressy's

It's all my money.

It's all my money. Where's

Where's the receipts suggesting it

It can't be, Your Honour. Yes, I played bad cop.

The

I had a little

I did the title searches.

They'd been

I also knew it had been there on the market.

27

off after a long time and had just come back on.

28

knew the value of property there.

29

from the Bar table.

30

chief or cross-examination.

31

properties around the railway track - - -

1.LL:DC 13/02/09 2Cressy

FTR:23AA

They

Taken I also

I hope I'm not leading

I'm sure I said this in evidence-in-

191

Miss Cressy was looking for

DISCUSSION

1HIS HONOUR:

I don't recall anything about that.

2MR JOHNSON:

I think you'll find it's in there.

Anyway what

3

I'm saying is I had my employee, my little apprentice

4

that was in my payroll as the payslips I've given in

5

evidence – one of the exhibits show.

6

Playing good cop.

So I had two voices in the

7

negotiation.

That's all that shows.

8

shows.

9

what is was listed for, all wrong.

The evidence she gave on prices, et cetera, and

10

embarrassing.

11

where he described them.

12

That's all that

Your Honour, it's

Both in her evidence Mr Devries opening

He didn't get a thing right for any of the

13

properties.

14

Lisa Court, Hawkhurst Court, Inverloch Drive, Caulfield.

15

About a third of the things that Mr Devries led and Ms

16

Cressy gave evidence on, after Your Honour kindly

17

reminded Mr Devries that he'd only actually got evidence

18

in on three of the six properties.

19

quite interesting, a reminder of that magnitude to a

20

barrister of Mr Devries's experience.

21

what Ms Cressy said and got put into evidence was kind of

22

on the money, Your Honour.

23

Why?

Not a thing right.

The Dorrington Street,

I thought that was

About a third of

Kind of right, a third.

Because she has no interest or claim or

24

involvement in the process of my acquisition, maintenance

25

and improvement of those properties except what she's

26

heard, what I've voluntarily handed over, consented in

27

those orders of Mr Justice Whelan, and whatever the

28

plaintiff's guys, her legal representatives have dug up,

29

including her fishing expedition of my banks which became

30

available I believe, on the date that the trial started,

31

2 December.

1.LL:DC 13/02/09 2Cressy

It certainly wasn't evidence they took into FTR:23AA

192

DISCUSSION

1

consideration when they issue proceedings, caveats and

2

voluntary reliefs.

3

The works that she did for me.

I'm weary Your

4

Honour.

5

property.

6

office.

7

didn't recognise Ms Cressy.

8

unfortunately I couldn't call because she's out of the

9

jurisdiction.

10

The works she claimed that she did to the Again she's my employee.

She's not in my

I believe Ms Briggs gave evidence that she I had another witness who

I could give - well, no I can't say

anything the witness.

11

None of the witnesses that I called who knew me and

12

knew me living in Bourke Street, even though their

13

evidence was weak because I'm a very private man, Your

14

Honour, none of them could give any evidence or anything

15

connecting me with Ms Cressy.

16

No contributions, no organic stuff, you know

17

indirect non financial or whatever the correct - the

18

expression is, if we're not living together.

19

not living together in a domestic de facto relationship.

20

So she fails on those tests as she should.

21

you come to court with a case without any financial

22

analysis, I'm sure Mrs Baumgartner didn't do that.

23

sure her lawyers didn't dare let her come into court

24

claiming constructive trust with no Part 9 avenue,

25

recognised at law, without some financials.

26 27

If we're

I mean, if

I'm

Mrs Baumgartner - where's the ring Your Honour? had a ring.

She

She had a ring.

28HIS HONOUR:

And she - - -

29MR JOHNSON:

There was a son or stepson living in the house.

30HIS HONOUR:

I think - I think Mrs Baumgartner, she assumed the

31

name of Mr Baumgartner and my recollection was that they

1.LL:DC 13/02/09 2Cressy

FTR:23AA

193

DISCUSSION

1

were in a de facto relationship.

2

issue arose because it was outside the realm of the

3

Family Court and her only recourse was by use of the

4

adoption of constructive trust which had shortly before

5

that been developed in the judgment of Sir William Deane

6

and Machinski v. Dodds.

7MR JOHNSON: 8

say.

9HIS HONOUR:

Thank you, Your Honour.

I think that's why the

I skimmed the case as I

I let it - - Well you studied it at law school - - -

10MR JOHNSON:

Many, many years ago.

11HIS HONOUR:

- - - more recently than I did.

12

study it at law school.

13MR JOHNSON: 14

In fact, I didn't

I studied that case in - or that area of law in

1984 and it's a 1987 case, you're right.

15HIS HONOUR:

Good.

16MR JOHNSON:

Machinski v. Dodds.

Now I'm thinking, now how -

17

2, 3, 4, 5 - when did I do this?

18

studied it in a later subject, not property law.

19HIS HONOUR: 20

22

Let's get back to the case at hand.

No, I'd like to address Your Honour on Machinski

v. Dodds and Baumgartner v. Baumgartner.

23HIS HONOUR: 24

Unless I

Well, your studies aren't terribly important in

this case.

21MR JOHNSON:

I don't know.

You may.

Yes, because that is an alternative

claim made by the plaintiff, so you should address it.

25MR JOHNSON:

Thank you, Your Honour.

Machinski v. Dodds is

26

totally distinguishable on the facts because - and I'm

27

reading from Samantha Hepburn's, Australian Property Law

28

Cases, Materials and Analysis at p.459.

29

her copy in the Supreme Court Library - - -

30HIS HONOUR: 31

Forgive me but

Yes, I read - I read the cases in the law reports.

I'm not interested in what textbook writers say about

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DISCUSSION

1

them.

2MR JOHNSON:

My assertion is that Mrs Machinski and Mr Dodds

3

were in a de facto relationship and purchased a property

4

as tenants in common.

5

they were de facto.

6

credentials, because they were both registered on title.

7

Boom boom, it's distinguished from the facts of this

8

case, Your Honour.

9HIS HONOUR:

There was no question on whether There was no question about

Baumgartner v. Baumgartner - - -

There's a de facto relationship there.

10MR JOHNSON:

Yes between a pair of woodcutters I think, Herr

11

and Frau Baumgartner.

12

Herr Baumgartner - I won't - I'll stay in English, Your

13

Honour, bought some land in his own name and there was

14

some talk about them putting it into joint names with

15

Frau Baumgartner, but they didn't do that.

16

The appellant, who I take was

They were living together - so they were living

17

together, there was evidence of a domestic relationship.

18

I don't know if that was enough in point of law at the

19

time to say well, domestic duties contributions, you'd

20

find your way into an interest in the property.

21

there's some - there's a reference to a son, perhaps a

22

son of Herr Baumgartner's from a previous relationship

23

that was being looked after by Frau Baumgartner.

24

But

There was cross-sharing of expenses and

25

cross-pooling of income.

Totally distinguishable on that

26

basis.

27

selling - did no caring for any of Mrs Johnson's

28

children.

29

were quarantine from Ms Cressy.

The plaintiff, he clearly had no involvement in

Perish the thought.

Mrs Johnson's children

30MR DEVRIES:

That is not the evidence.

31MR JOHNSON:

It's the evidence of Mr Johnson in chief,

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DISCUSSION

1

Mr Devries.

2HIS HONOUR:

The evidence of Ms Cressy was in fact that from

3

time to time your children stayed with you and her until

4

- certainly from my recollection at Illouera Avenue.

5MR DEVRIES:

And it was - she said they came from time to time.

6

I looked after them.

We went out on excursions together

7

and she was never challenged.

8HIS HONOUR:

That is - you are quite right Mr Devries.

9MR JOHNSON:

Your Honour, Ms Cressy cannot even put me as ever

10

living Illouera Avenue.

11

It's not within the two years - within two years that she

12

needs to satisfy to get up a Part 9 claim in any case.

13

She can't put me as living in the house, I don't know how

14

she can put Mrs Johnson's children as living in the

15

house.

16

She just fails on the evidence.

The period of this dreamy, fantasy relationship for

17

Ms Cressy to even put up a case, has to be because - she

18

can't get it up in terms of Queens Street, Altona.

19

got to be for a two year period, the two financial years

20

2004 to 2006

It's

21When she was living at Dorrington Street, Point Cook and I was 22

living at 909/668 Bourke Street.

23

Yarra and Nicholson Street have got nothing to do except

24

in terms of credibility of her case.

25HIS HONOUR:

Illouera, even at South

You have already submitted that but in fact you

26

have diverted yourself from making some submissions about

27

the constructive trust case.

28MR JOHNSON:

I just wanted to put out, Your Honour, that on

29

appeal Mason CJ and Wilson and Dean JJ said one of the

30

things the trial judge might have got wrong here is the

31

difficult issue of credibility of witnesses.

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196

Maybe the DISCUSSION

1

trial judge got the credibility issues very wrong in the

2

first instance in Baumgartner v. Baumgartner and maybe

3

getting that credibility issue wrong is something that

4

the High Court corrected on appeal.

5

interesting possibility for the way that this case will

6

proceed from hereon, Your Honour.

7

Honour is not going to make findings that just can't hold

8

up on appeal.

9

say that Baumgartner v. Baumgartner is totally

That is an

I am confident Your

I am very confident of that.

So I would

10

distinguishable.

11

living together for starters and it's all stacked against

12

her, Your Honour.

13

demonstrated a non living together, incontrovertible.

14

she has firstly got to somehow establish a living

15

together and she has got to establish the basis of the

16

living together.

17

to establish contributions.

18

because it's easier, there's a paper trail.

19

any of that, Your Honour, and you've got to ask why not.

20

The Tax Office was closed for two years and couldn’t send

21

out the documents.

22MR DEVRIES:

The plaintiff has to prove we were

Even if I just sat mute.

Domestic, de facto.

But I have So

She has then got

Cash would have helped She hasn't

Your Honour, this is the seventh or eighth time

23

this has been said.

Mr Johnson has clearly, again, as he

24

has every other night of this hearing, playing for

25

stumps.

26MR JOHNSON:

I will be finished well before stumps, Mr Devries.

27HIS HONOUR:

I would expect you to be finished shortly because

28

if all you have got left is constant repetition of this

29

type then you are well served for completing now.

30

don't want you to sit down without addressing points to

31

me you intend to make but have not yet got around to

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But I

DISCUSSION

1

making.

2

becoming irrelevant, repeating yourself is sometimes you

3

can forget to make your best points.

4

rather than ranting and raving there you simply draw

5

breath, have a look at your points and see if there is

6

anything worthwhile that you ought to bring to my

7

attention.

8MR JOHNSON: 9

One of the dangers of haranguing the judge,

Thank you, Your Honour.

I just suggest that

I am at point nine of 12

points so I should finish quite soon.

Point nine is the

10

presumptions, the Jones v. Dunkeld rule which I found

11

quite pertinent.

12

that I would not call Francine Irene Miller, the lady

13

brothel owner of Harem International, Your Honour, at the

14

relevant times.

The deal that Mr Devries and I have was

15HIS HONOUR:

There is no reference to her at all.

16MR JOHNSON:

She was one of my subpoenaed witnesses, Your

17

Honour, and I would not be held as incriminating myself

18

for not calling Mrs Johnson, my girlfriend Stella or my

19

P.A. of - including several years at Prime Life,

20

Kathleen.

21HIS HONOUR:

I'm not sure that's right.

My recollection was

22

that Mr Devries, to try to finish the matter on

23

12 December proposed that he would not rely on the

24

inferences that was described in Jones v. Dunkeld and the

25

like, but then after you indicated you wanted an

26

adjournment anyway my recollection is he actually resiled

27

from that, he withdrew that proposition.

28MR JOHNSON: 29

on the - - -

30HIS HONOUR: 31

So you will withdraw adverse inferences against me

No, I'm not saying I would, but I'm just

correcting a - - -

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DISCUSSION

1MR DEVRIES: 2

to - - -

3HIS HONOUR: 4

There were a couple of ex-girlfriends or alleged

ex-girlfriends, Stella and someone else.

13MR DEVRIES: 14

In respect - I think there were four known

witnesses that I referred to.

11HIS HONOUR: 12

So you won't be asking to draw an adverse

inference.

9MR DEVRIES: 10

Sorry, I'm not going to rely on any resiling from

the four witnesses I said I wouldn't - - -

7HIS HONOUR: 8

You're not going to rely on those decisions

anyway.

5MR DEVRIES: 6

I can assure, Your Honour, that I'm not going

An employee and I think there's one other - and

his ex - and his wife.

15HIS HONOUR:

Right.

16MR JOHNSON:

Mr Devries, could you refresh my memory.

17MR DEVRIES:

I didn't cut a deal with Mr Johnson.

18HIS HONOUR:

I didn't think you would.

19MR DEVRIES:

I voluntarily - in order to speed things up I

20

wouldn’t rely on Jones v. Dunkeld.

21HIS HONOUR:

His ex-wife and employee.

22MR DEVRIES:

I believe so, I would have to look at the

23

transcript for the precise names.

24MR JOHNSON:

Your Honour, would Mr Devries clarify, the deal

25

obviously on the one hand was the Madam brothel owner of

26

Harem International.

27HIS HONOUR:

He has actually said he didn't cut any deal with

28

you, I would be amazed if he did.

29

his feet, in my recollection, on 12 December to try and

30

finish the case on that day he did not submit that I

31

should draw an adverse inference against your case if you

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199

What he has said on

DISCUSSION

1

did not call certain witnesses he referred to on that

2

day.

3MR JOHNSON:

Your Honour, I just wish to clarify which of these

4

witnesses I'm not going to be assumed to have hidden

5

negative information from.

6

brothel Madam (indistinct) interestingly.

7

Stella, Kathleen, does it include my long-term girlfriend

8

Elizabeth, Mr Devries?

9

suggesting adverse inferences be drawn because Elizabeth

Francine Irene Miller, Julie Johnson,

Is she covered or will you be

10

is scared to give evidence?

11

We're all scared to give evidence (indistinct).

12MR DEVRIES:

I'm sorry, Mr Devries.

I don't intend to answer any questions that

13

Mr Johnson directed to me, Your Honour, but I did refer

14

to four witnesses on p.1012 and I will put Mr Johnson on

15

very fair notice.

16

called, but I will be relying on that presumption, is Ms

17

Leanne Kelly.

The only witness that he should have

18HIS HONOUR:

Yes, I can understand that.

19MR DEVRIES:

I don't believe, but I could be wrong - I don't

20

believe there was any reference to the lady from the

21

brothel, but even if - - -

22HIS HONOUR:

I don't think there was.

23MR DEVRIES:

Even if there wasn't I am not going to be relying.

24HIS HONOUR:

So the only inference you are urging on me is Ms

25

Leanne Kelly who the plaintiff stated he was going to

26

subpoena to court.

27MR DEVRIES: 28

Yes, and he maintained he was going to right up

until the time that he didn't - - -

29HIS HONOUR:

Yes, I follow that.

30MR JOHNSON:

Your Honour, two quick comments on that.

31

Firstly

I sent to Mr Devries and Ms Sofroniou on 2 (indistinct) a

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200

DISCUSSION

1

document where I explained to them - at least if not

2

yourself Your Honour, who I would and wouldn't be calling

3

and the reasons why - (indistinct) I think I described

4

it, and I hope I got it right from my meetings as model

5

litigation, no surprises litigation under the Attorney

6

General's model litigant rules, which are (indistinct)

7

practised within the government industry Your Honour, the

8

government sector.

9

that I had called Miss Kelly and said to her, "Ms Kelly

Secondly, let's play the hypothetical

10

you're not to waive any solicitor/client privilege".

11

What answers could - what questions could Miss Leanne

12

Kelly have said?

13

barrister and solicitor of - - -

14HIS HONOUR:

My full name is Leanne Kelly, I am a

It doesn't matter, the point is you had in your

15

own evidence I think got pretty close to waiving

16

privilege because you had indicated that you just simply

17

relied on the wording of Miss Kelly.

18

explain that the affidavit - the wording is not yours

19

but - - -

Now if you want to

20MR JOHNSON:

I have earlier Your Honour.

21HIS HONOUR:

Yes, you may - - -

22MR JOHNSON:

It talks about being in a relationship and living

23

with and partly with.

24

father and daughter, were we husband and wife, were we

25

brother and sister, were we employer/employee, were we

26

pimp and working girl, were we just friends?

27

stage in the relationship with Miss Cressy we were

28

actually friends Your Honour.

29

we're not still friends Your Honour, no - no explanation

30

in the plaintiff's case why the relationship - whatever

31

it was at that particular point in time, whatever it had

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What sort of relationship, were we

201

At some

There's no explanation why

DISCUSSION

1

morphed into or involved, aggressed or regressed, what

2

happened in April, May or June 2007 to change things so

3

that we're here today?

4

could not have given answers to any questions that would

5

have violated her duty - solicitor/client privilege.

6

What would be the point in calling Miss Kelly?

7

That's interesting.

Miss Kelly

If Mr Hanlon can't answer questions about the

8

evidence that's before Your Honour - what sequence of

9

that evidence he had in May 2007 when caveats were drawn,

10

and equitable charges executed, how that could be

11

privileged is beyond me Your Honour when the plaintiff's

12

case is closed.

13

questions, other than her name, rank and serial number

14

Your Honour?

15

How could Miss Kelly answer any

How can any adverse inferences be drawn against me

16

given that I don't have to present a case - I'm a

17

defendant, because I haven't called - (a) haven't called

18

a witness, and (b) I haven't waived fully legal

19

professional client/solicitor privilege?

20

that's funny, that's really funny.

21

talked about the absent neighbours from Queen Street, and

22

absent neighbours from Dorrington Street, the friends,

23

social acquaintances, the kiddies parties, the - my 40th

24

birthday party, the absence of any - of all of that

25

social and domestic fabric that would cling to a couple

26

who had lived in a domestic relationship for nine years

27

to the extent it would be uncontrovertible, and therefore

28

that list of precedents that Mr Devries handed around in

29

the - I think it was the beginning of the second week of

30

the trial, they're all totally distinguished on the

31

facts.

Your Honour

Jones v. Dunkel, I've

Because there was no issue as to the existence of

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DISCUSSION

1

a husband and wife relationship, de facto or de jure.

2

This fails at the threshold Your Honour.

3HIS HONOUR:

Well you've made that point many times.

4MR JOHNSON:

Thank you Your Honour.

I've made a number of

5

applications.

6

I really applied to have all of this adjourned - a

7

directions hearing from Your Honour.

8HIS HONOUR: 9

I have applied to amend my counterclaim.

I'm not going to respond to your constant

misstatements Mr Johnson because I'm very concerned to

10

finish this case, and every time I respond you use it as

11

an opportunity to waste more time.

12

though that my silence is not my agreement with any

13

misstatement made by you, so that you can't use this

14

transcript for that purpose later.

15

Take it as read

But it's simply a waste of my time to try to correct

16

the chronic and constant and deliberate misstatements by

17

you as to what has occurred and what has not occurred.

18

Now just make further submissions on this case, or sit

19

down please.

20

address.

21

ensure that you have put to me relevant points.

22

time to time you have done well, and - when you've wanted

23

to, which proves that when you want to you can address

24

relevant points to me.

25

you've made all the relevant points, but the time has

26

long gone when I'll tolerate any more time wasting by

27

you.

28MR JOHNSON: 29

You've had a very long time in final

It's important before you sit down that you From

So make sure before you sit down

Your Honour I'm very keen to finish within the

next five minutes, I'll move on.

30HIS HONOUR:

Well just - - -

31MR JOHNSON:

I've mentioned Callinan's principles Your Honour,

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203

DISCUSSION

1

my slogan show me the evidence plaintiff, show me your

2

rights that you had to be vindicated by your legal

3

representatives to justify three rounds of caveats, issue

4

of proceedings, two sets of interlocutory relief

5

applications that were upheld in the Practice Court.

6

after a one day plus hearing in a Practice Court.

7

One

Every litigation the way I've spoken is just -

8

Practice Court hearing do more than two hours,

9

incredible.

I would say Your Honour that issuing all of

10

those actions with - and in doing so failing first to

11

identify or quantify the rights to be vindicated by

12

reference to a body of evidence, that's just as bad as

13

issuing proceedings for a known ulterior purpose.

14

If there is no - what's the opposite of ulterior, if

15

there is no known interior purpose ipso facto there must

16

be a ulterior purpose.

17

let's issue this writ, let's get the interlocutory relief

18

and hope we don't get to a horrible problem at trial

19

where we don't have a case, and our client is up for

20

costs.

21

interlocutory relief is (indistinct) we're given.

22

6920 - sorry, 63.17, let alone Callinan's case and the

23

other cases, some of which Your Honour kindly mentioned

24

in his judgment 48 hours ago.

25

case and if I may rely on that unreported decision of two

26

days ago, a reference to Butler, Simmonds, Crowley and

27

Galvin at p.12 of that unreported judgment of Your

28

Honour's.

29

quantify the rights to be vindicated, that's tantamount

30

to knowing that they're issuing with no rights to be

31

vindicated and it's ulterior purposes Your Honour.

This - let's issue this caveats,

Because she's got no moneys to pay costs when

1.LL:DC 13/02/09 2Cressy

Rule

Reference to Callinan's

I'm sorry, but the failure to identify and

FTR:23AA

204

DISCUSSION

1

Let's issue and hope we find some evidence to

2

justify it.

How do we fix that one now that we're in

3

trial and the plaintiff doesn't have a case, doesn't have

4

evidence, doesn't have credibility in terms of the viva

5

voce.

6

didn't raid the tax office, Your Honour.

7

next point, champerty.

8

used to be illegal in this jurisdiction.

9

a question of degrees.

Can't explain why it's purely viva voce, dingo It comes to the

Now it used to be a crime.

It

All of this is

Where you've got failures in

10

access to the legal system, failure in the legal aid

11

delivery, failure in the pro bono, law firms like Sutton

12

Lawyers Pty Ltd that model themselves on the principles

13

of the Legal Aid clinic.

14

established by John Cooke in accordance with the

15

principles of his vindication of the Professors and

16

Profession of Law which I think was 1648 issued pamphlet,

17

Graies-Inne, G-r-a-i-e-s I-n-n-e, lovely language and all

18

the f's and s's, consonants switches around as they did

19

on those days.

20

between.

The first ever Legal Aid clinic

That's sorts of law firms are few and far

Civil liberties organisations down have firms.

21MR DEVRIES:

This is totally irrelevant.

22MR JOHNSON:

Your Honour, the fact that these proceedings have

23

been litigation funded carried 99 per cent or more by the

24

lawyers for the plaintiff.

25

$3000.

26

that's the reason that champerty was a crime because the

27

lawyers would then have the improper purposes of looking

28

at a return on their own investment, rather than the

29

interests of their client.

30

look at my costs and damages, which can only be paid to

31

me by Mr Devries and Mr Turnbull's firm, because Your

She's only put in the first

That, I say, goes to the improper purpose because

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205

So I say, when it comes to

DISCUSSION

1

Honour has exculpated David William Hanlon & Hardwood

2

Andrews for their part in this mess.

3

comes to assessing my costs and damages against the

4

plaintiff's legal representatives, under Callinan's

5

principles and the relevant rules of this Supreme Court,

6

I say do please take into account their aggravating

7

factor because under the law as it was maybe a decade

8

ago, I'm sorry these legal representatives they would

9

have committed a crime.

10HIS HONOUR:

When Your Honour

You're getting so far from a relevant issue

11

between yourself and Ms Cressy that even the first year

12

law student could see it, let alone a solicitor of 20

13

years core.

14

again.

15

claim by Ms Cressy against you or relevant to the

16

counterclaim you have in this court, in this case against

17

her or sit down.

18MR JOHNSON:

This is just deliberate time wasting yet

Now, address relevant issues - relevant to the

Your Honour, I have gone over the time, I just

19

need a couple more minutes.

20

things clearly important.

Your Honour, there are three The lack of evidence - - -

21HIS HONOUR:

You're wasting an opportunity.

22MR JOHNSON:

- - - the lack of credibility.

23HIS HONOUR:

You've said that.

24MR JOHNSON:

The defective process which again goes to

25

credibility and my right to aggravated damages.

26

damages and costs from her legal representatives, for

27

something that a decade ago would've been a crime of

28

champerty.

29

Every one of those Exhibits A to O should've been

30

discovered in my affidavit of documents, Your Honour.

31

The anti discovery, aggravated burglary strategy of the

1.LL:DC 13/02/09 2Cressy

The no discovery.

FTR:23AA

206

Maximum

There should have been.

DISCUSSION

1

plaintiff.

The lack of interrogatories.

The pleadings

2

were not settled.

3

of the transcript please, Line 22, 4 December 2008, where

4

there was - Mr Devries talked about the amendment of the

5

statement of claim of the plaintiff.

6

grossly culpable two day trial estimate.

7

defence.

8

deny whether she'd lived in the jurisdiction for two

9

years, I simply did not know.

And I say, Your Honour, look at p.195

There was the Page 1 of the

I denied everything except I couldn't admit or

What clearer signal that

10

the defendant says, you've got no case.

11

to answer.

12

message Your Honour.

13

date to the defendant.

14

told of the hearing, where it was set down, I wasn't told

15

of the two day trial estimate - - -

16HIS HONOUR:

Everything is denied.

I've got nothing

That's a pretty strong

Denied communication of the trial I simply wasn't told.

I wasn't

Mr Johnson, this is got absolutely nothing to do

17

with the issues I have to decide.

You know it.

You're

18

just using your privilege position as appearing on your

19

own behalf in this case as a soapbox.

20MR JOHNSON:

Your Honour - - -

21HIS HONOUR:

Now address relevant issues.

22MR JOHNSON:

- - - my point is not just the champerty point,

23

but the defect in the process.

The practice court

24

applications which Mr Justice Whelan said to the previous

25

legal team, the ones who were exculpated 48 hours ago,

26

"Don't do it boys.

27

Don't abuse this practice court jurisdiction this way."

28

It wasn't heeded.

29

application - - -

Go through normal court process.

The lack of mental capacity

30HIS HONOUR:

You've addressed this already Mr Johnson.

31MR JOHNSON:

Thank you Your Honour, thank you Your Honour.

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DISCUSSION

1HIS HONOUR:

You are deliberately wasting time.

2MR JOHNSON:

The no hearing or the limited hearing however Your

3

Honour might describe it, I make application for

4

consolidation of the proceedings.

5HIS HONOUR:

Mr Johnson I have - - -

6MR JOHNSON:

My evidence - - -

7HIS HONOUR:

- - - I have, contrary to my desire, heard that

8

application - just a moment.

9MR JOHNSON: 10HIS HONOUR:

Forgive me Your Honour. I have heard that application time and time again,

11

self evidently it would be an impossibility to join the

12

two proceedings in together for many reasons, which you

13

as a lawyer could quite clearly discern.

14

different parties, there is a counterclaim by you against

15

about ten different parties, including the Legal Services

16

Commissioner, Mr Hulls, the Attorney General, and many

17

other people.

18

There are

Self evidently the two proceedings could not be put

19

together.

As I understand it I don't know the

20

proceedings have even closed in the other proceeding.

21

This case was set down for trial, you've full well known

22

that, and I have heard this case.

23

deliberately defied every ruling I've made to that affect

24

for your own purposes.

25

down.

You have just simply

Now address this case or sit

26MR JOHNSON:

Your Honour I am - - -

27HIS HONOUR:

That's a direction to you now.

28

It's a binding,

legal direction.

29MR JOHNSON:

Your Honour - - -

30HIS HONOUR:

Address the points in this case, or you will sit

31

down.

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DISCUSSION

1MR JOHNSON:

Your Honour I am pleased to report that you have

2

indeed lived to see the day when I am speechless.

3

completed my submissions, and the only further thing I

4

want to do is to ask if I may be excused - if I may go

5

home?

6HIS HONOUR:

I have

Well I can't force you to stay, but Mr - but what

7

I'd better advise you is this, Mr Devries will be making

8

his submissions.

9MR DEVRIES:

The hour's late, and it's cruel - - -

I wish to make about five or ten minute

10

submissions for one very obvious reason Your Honour, that

11

if I don't start we'll have an application on Monday from

12

Mr Johnson to restart.

13HIS HONOUR: 14

Yes, I was saying it's a good - I follow that,

well I think - - -

15MR JOHNSON:

May I be excused Your Honour?

16HIS HONOUR:

Now Mr Johnson - - -

17MR JOHNSON:

I have no case to answer, I have no need to be

18

here.

There's nothing Mr Devries has to say I need to

19

listen to.

20HIS HONOUR: 21

Well I can - I have no power to force you to stay,

but before you leave can I say this to you

22That it is - that I would have thought it was most important 23

you listen carefully to what Mr Devries has to say.

24

indicated to you at the beginning of these submissions at

25

your request that particularly given the fact that you

26

appear for yourself, I would be sympathetic to an

27

application by you to respond to any matters which took

28

you by surprise and to which you have a legitimate

29

response after Mr Devries has completed.

30

here, obviously you won't know what he said.

31

matter for you.

1.LL:DC 13/02/09 2Cressy

If you aren't

I can't force you to stay.

FTR:23AA

209

I

Now, it's a It would be DISCUSSION

1

a discourtesy to me for you to leave, but I can cope with

2

discourtesies.

3

discourtesy to the legal system, but if that is the way

4

you wish to conduct yourself as a barrister and solicitor

5

of this court I'm not going to force you to stay, it's

6

matter for you.

7MR JOHNSON: 8

More importantly it would be a

All right?

Your Honour, I do not wish to appear discourteous,

that is why I am asking permission to leave.

9HIS HONOUR: 10MR JOHNSON:

It is a matter for you. I have no case to answer, I have no need to hear

11

anything that Mr Devries wants to say.

12

or need for reply.

13

two.

14HIS HONOUR: 15

I have no right

I can read the transcript in a day or

I have no need to be in court - - I will not re-fix the case so you can respond

after you have read the transcript.

16MR JOHNSON:

I see no need for that, Your Honour.

17HIS HONOUR:

Be assured of that.

18MR JOHNSON:

I am confident in Your Honour's ethics.

19HIS HONOUR:

If you are not going to be here I will rise once

20

Mr Devries has finished his final address and I will not

21

re-open the case.

22MR JOHNSON:

I am happy to hear that, Your Honour, and I do

23

hope Mr Devries is quicker in submissions than I am, but

24

I do not want to be regarded as discourteous if I leave

25

and go home right now.

26

never needed to be here, Your Honour.

I have no need to be here.

I

27HIS HONOUR:

It's a matter for you.

28MR JOHNSON:

I never had a case to answer.

29HIS HONOUR:

It's a matter for you, Mr Johnson, you can come or

30

go whichever you prefer.

31MR JOHNSON:

But I have told you - - -

Thank you for the courtesy of excusing me, Your

1.LL:DC 13/02/09 2Cressy

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DISCUSSION

1

Honour.

2HIS HONOUR:

But I have told you in your interests you should

3

Mr Devries.

stay.

4MR JOHNSON: 5

May I be allowed a minute or two to pack up before

Mr - - -

6MR DEVRIES:

I would like to start - - -

7HIS HONOUR:

No, Mr Johnson, you will not disrupt Mr Devries.

8

Do you wish to go for 10 minutes?

9MR DEVRIES: 10HIS HONOUR: 11

I will go until four o'clock Your Honour. I can understand the wisdom in you doing that,

would you do that, thank you.

12MR DEVRIES:

Your Honour, whilst Mr Johnson is still here let

13

me make the observation that it is highly inappropriate

14

for him to have forced us to listen to him making

15

speeches, making wild allegations against myself and my

16

instructors (indistinct) and then not have the courage to

17

sit and listen to the responses to that.

18

a discourtesy it just proves beyond any doubt at all that

19

his actions have been purely and simply to oppress and

20

vex my client, my instructor and myself.

21

complained to Your Honour that certain things happened

22

after he left the Federal Magistrates Court jurisdiction

23

and they happened because he left and he didn't give

24

himself the opportunity to answer things.

25

the same complaint at a later stage in these proceedings.

26

Things happened when I wasn't there, Mr Devries said

27

things that I didn't have the opportunity to answer.

28

Well, he is creating that situation, Your Honour, and in

29

my submission it is not a discourtesy to the court, with

30

the greatest of respect, it is a contempt of the process.

31

Your Honour, whilst Mr Johnson is here I would submit

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211

It is not only

My Johnson

He will make

DISCUSSION

1

that it is indisputable - - -

2HIS HONOUR:

I should point out for the purposes of the

3

transcript while Mr Devries has been making submissions

4

to me, Mr Johnson has been busy packing his bags and is

5

about to leave.

6MR DEVRIES:

Thank you, if Your Honour pleases.

7HIS HONOUR:

Mr Devries.

8

I now record for the transcript that

Mr Johnson is leaving the court.

9MR DEVRIES: 10MS CRESSY:

Mr Devries.

May it please Your Honour. Excuse me, Your Honour, I'm sorry but I'm really

11

frightened (indistinct) will make a phone call to the

12

school.

13MR DEVRIES: 14

Can my client leave to make that phone call, she's

concerned that he might be going to the school.

15HIS HONOUR:

I follow, yes certainly.

It will not be a

16

discourtesy if Ms Cressy leaves the court, she is here

17

represented by counsel and she should feel free to do so.

18MR DEVRIES: 19

Sorry, Your Honour, I think there is an urgency

about it.

20HIS HONOUR:

I understand that.

21MR DEVRIES:

I will just go for two minutes.

22HIS HONOUR:

Do you wish me to stand it down for a moment and

23

you attend to that and I will come back once you have got

24

her settled?

I think that would be a good idea.

25MR DEVRIES:

If Your Honour - - -

26HIS HONOUR:

I will just be out the back.

I know you want to

27

land a punch tonight and I will be back when you tell Mr

28

Richards.

29MR DEVRIES: 30

May it please Your Honour.

Thank you.

(Short Adjournment.)

31MR DEVRIES:

Thank you for that, Your Honour.

1.LL:DC 13/02/09 2Cressy

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212

DISCUSSION

1HIS HONOUR:

Thanks, Mr Devries.

2MR DEVRIES:

My client has made arrangements to ensure the

3

safety of the children.

Your Honour, these submissions

4

and addresses are made against the background and in the

5

context of the following, one, that it is indisputable

6

that Mr Johnson is a highly intelligent person.

7

respect, Your Honour has made that observation a number

8

of times in the course of this matter and, with the

9

greatest of respect, it is something with which I fully

With

10

agree.

11

very least he has the qualifications and been admitted to

12

practise as a barrister and solicitor of this honourable

13

court, as the admission was then referred to.

14

we're now admitted as something quite different, Your

15

Honour.

16

highly articulate man, he's without a shred of a doubt a

17

widely read man and enviably so.

18

practised as a solicitor for nigh on 20 years.

19

us repeatedly that he has an unblemished record, he tells

20

us repeatedly that he's done important work for large and

21

important clients, he tells us he's been on many Law

22

Institute of Victoria committees, written many learned

23

articles to the Law Institute Journal and has delivered

24

many learned papers.

25

advocate and to be able to turn his mind clearly and

26

effectively to the issues to which he chooses to turn his

27

mind.

28

Mr Johnson is a highly educated person, at the

I think

Mr Johnson is without a shred of a doubt a

Mr Johnson has He tells

He has proven to be an excellent

Thus, Your Honour, I submit that each and every

29

action of Mr Johnson in this matter has been deliberate,

30

calculated, thought through by him and the consequences

31

very carefully considered by him.

1.LL:DC 13/02/09 2Cressy

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213

This is what ought to DISCUSSION

1

be expected from an intelligent, appropriately educated

2

and experienced lawyer.

3

matter has done everything within his not insubstantial

4

powers to ensure that the issues before Your Honour are

5

not addressed.

6

it that he's seeking to hide that he goes to such

7

extraordinary lengths to avoid being addressed?

8 9

Mr Johnson throughout this

I rhetorically ask the question, what is

What Mr Johnson has done in this matter is to erect a massive smoke screen around the issues and to log

10

highly powered grenades over the smokescreen.

He's done

11

his best to oppress and vex my client, my instructor and

12

myself and he has succeeded hugely.

13

enormous distraction and Mr Johnson quite rightly today

14

referred to the fact that Your Honour had to jog me about

15

the fact that I hadn't covered all of the properties and

16

that was because I have been dealing with one of his hand

17

grenades and that was the - - -

It has been an

18HIS HONOUR:

The counterclaim.

19MR DEVRIES:

- - - counterclaim in the other matter.

20HIS HONOUR:

If I could say this, Mr Devries, I have been

21

conscious of the stress and pressure to which you have

22

been subjected because of the conduct of Mr Johnson

23

throughout this case, and your solicitor and you have

24

both, I consider, conducted yourselves admirably and

25

remarkably well considering the obvious pressures you

26

have both been under.

27MR DEVRIES:

I'm indebted to Your Honour for saying that, it's

28

very, very encouraging, but it happened again today or

29

attempted to do that today, Your Honour.

30HIS HONOUR:

Yes, I noticed that.

31MR DEVRIES:

Waving a document in front of me.

1.LL:DC 13/02/09 2Cressy

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214

He referred to, DISCUSSION

1

in his address he referred to a letter that he'd sent to

2

my instructors and I'll hand that - sorry, to my

3

instructors and Ms Sofroniou's instructors and that was

4

very much in the same vein and it did alert me to the

5

fact that that's what he's done.

6

Now, if I can just very briefly list the actions

7

he's taken then, if I can call it an item, that he's

8

filibustered throughout this matter, he's speechafied on

9

irrelevant issues, he's made extravagant claims without

10

backing up without any evidence whatsoever, he's

11

constantly tried to divert Your Honour's attention from

12

this matter to his other matter and I thought he had said

13

in transcript on Wednesday, but I must confess I haven't

14

been able to find the reference to it, therefore, it

15

might have been the day before, to that being the more

16

important matter, which suggests some of his actions here

17

have had an ulterior motive and he certainly has tried to

18

litigate that other matter.

19

With the exception of Ms Newcombe, who I think he

20

tried to have as a witness, every other witness that he's

21

tried to call but been ruled against on, is a defendant

22

in his other matter.

23

matter has either been sought by him to be called as a

24

witness or has already given evidence, such as my client

25

and Dr List, with the exception of the plaintiff

26

mortgagee in that matter, the Attorney-General and the

27

Minister for Human Services.

28

Indeed, every defendant in that

I'm not sure he pressed the calling of Federal

29

Magistrate O'Dwyer but he certainly foreshadowed that on

30

many occasions and in parenthesis I would submit that the

31

timing of his attack on Federal Magistrate O'Dwyer was

1.LL:DC 13/02/09 2Cressy

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215

DISCUSSION

1

similar to the timing of his attacks on all of the other

2

persons involved in this matter and that was to try and

3

get a message across to Federal Magistrate O'Dwyer before

4

he handed down his decision, and with great respect, Your

5

Honour, I submit that he tried to do the same thing in

6

this court.

7

It's inappropriate for anyone but particularly a

8

legal practitioner not only to ignore rulings from the

9

court, as much as sometimes we'd love to and we don't

10

like, I've got to say, Your Honour, having rulings made

11

against us but that's something we have to live with.

12

Just as we don't like our football team losing but we've

13

got to live with that as well.

14HIS HONOUR:

We have to live with both of them, Mr Devries.

15MR DEVRIES:

But, Your Honour, to say to a judge of this

16

honourable court, "I'm going to appeal that decision and

17

if you do certain things I'm going to appeal that, and if

18

Your Honour would - I think if you stand this matter down

19

so I can get the appeal so that when I succeed in the

20

appeal you can admit further evidence", is contemptible

21

behaviour and a contempt of this court.

22

respectfully submit an attempt to try and influence Your

23

Honour's decision making in this.

24

could say this with great respect is sharing the pain

25

that everyone else that's been involved in matters

26

involving Mr Johnson has shared.

And also I

So, Your Honour, if I

27HIS HONOUR:

It has not been an easy trial, Mr Devries.

28MR DEVRIES:

No.

It's matters like this where I'm pleased that

29

I'm at the Bar and not on the Bench and have no prospects

30

of being on the Bench, because I certainly couldn't have

31

coped with what's gone on.

1.LL:DC 13/02/09 2Cressy

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DISCUSSION

1HIS HONOUR:

I think you've been in a pretty hot seat yourself

2

down there with Mr Johnson against you, but that's by the

3

bye.

4

you're perfectly right in describing the qualities of

5

Mr Johnson.

6

ordinary litigant in person to whom this court extends

7

enormous latitude, and I have extended excessive latitude

8

to Mr Johnson in this case.

9

In fact I wouldn't be surprised if that's a gross

The concern I really have had in this case is that

He doesn't come to this court as the

But he's very intelligent.

10

understatement.

11

just in practice but he's as you say acted for large and

12

important clients, and he was – I think he described

13

himself as special counsel to a very large national law

14

firm.

15

He's got a law degree.

He has been not

When he wanted to in the case he actually focused

16

well on issues.

17

Whether they're right or wrong are well made.

18

evidence-in-chief when he was relevant was orderly and

19

chronological.

20

that really when he wanted to be he could do it, and

21

therefore when he was diverting chronically into

22

irrelevant issues as I said to him when he was

23

deliberately disobeying rulings of mine, this wasn't

24

simply of a fractious litigant person who doesn't

25

understand the process.

26

Some of his arguments were well made. His

All that just seems to illustrate to me

It was deliberate and calculated and it was conduct

27

I must say - you and I have both been in the law a long

28

time and have a respect for the law because it achieves a

29

worthwhile function in society.

30

disturbing that any person who's had any experience in

31

this law, would violate the system in the way he's

1.LL:DC 13/02/09 2Cressy

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217

I myself found very

DISCUSSION

1 2

tried to.

3MR DEVRIES:

Particularly as he's not a youngster.

4HIS HONOUR:

No.

5MR DEVRIES:

If he was first year out and trying to challenge

6

the system as a lot of people do

7And want to take on the cock in the hen yard.

You can

8

understand that to some extent.

Although it's self

9

defeating.

Your Honour - - -

10HIS HONOUR:

But after 20 years.

And after 20 years I must say this, that it does

11

make my job more difficult from this point of view that I

12

have to settle that one side.

13

the parties, I will and do, and try to elicit, probably

14

doing more than justice to him, the best parts of his

15

case.

16

do justice not just to your client but to himself,

17

despite his best endeavours to veer me away from that.

18

It's not an easy task.

19MR DEVRIES:

I've got to stand between

That makes it even more difficult to ensure that I

Yes, he's taken an all or nothing strategy.

Your

20

Honour, I just wondered whether if I got to the – just to

21

assist Your Honour, if Your Honour's going to be turning

22

your mind to this over the weekend, if I - - -

23HIS HONOUR:

Yes, I will.

24MR DEVRIES:

- - - told you where I was heading for - - -

25HIS HONOUR:

Yes.

26

If you could just briefly do that and then I

think we'll call it a day.

27MR DEVRIES:

Yes, only for a minute or two, Your Honour.

28HIS HONOUR:

Yes.

29MR DEVRIES:

Your Honour, what I'll be submitting to you is

30

that there was clearly a relationship and I'll be using

31

the prayer that he's used in that affidavit which is

1.LL:DC 13/02/09 2Cressy

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DISCUSSION

1

Exhibit F.

And that I'll be placing very heavy reliance

2

upon Kenyon v. Akroyd which I'll be submitting to Your

3

Honour almost goes to the point of saying we have a

4

traditional relationship of a breadwinner and a

5

homemaker, particularly where there's a child that it's

6

almost a 50/50 starting point.

7HIS HONOUR:

Yes.

8MR DEVRIES:

But what I'll be submitting to Your Honour and

9

I'll be conceding that we haven't been able to put before

10

Your Honour precise valuations of the pool.

11

know is that Mr Johnson already has, and I'm relying on

12

his evidence principally, $70,000 of superannuation, the

13

proceeds of sale of Lisa Court, Gibson Street, 7A

14

Endeavour Drive, the proceeds of the refinancing of

15

Gibson Street which went into 7A Endeavour Drive, which

16

he says was $98,217, motor vehicles still in his

17

possession, $10,000 from the sale of a motor vehicle, the

18

rebate that he got from Gibson Street, which he put at

19

$11,000 and the retained rent which he put at 7000.

20

But we do

He keeps that and my client gets the net proceeds of

21

sale of 166 Queen Street which he seems to agree is

22

$48,000 and that all of his right, title and interest in

23

Hawkhurst Street, subject to the mortgage be transferred

24

to my client.

25HIS HONOUR: 26

The difficulty is I just don't know what the

equity in all these properties are.

27It may be a massive equity in Hawkhurst Street and little in 28

the other properties, or it may be the other way around,

29

it may be that that type of disposition would do an

30

injustice to your side if I found that there was a

31

relationship and that as a result of contributions made

1.LL:DC 13/02/09 2Cressy

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DISCUSSION

1

as defined in the Act there ought to be a redistribution

2

of it.

3

alternative if I was to find a relationship with

4

contributions would simply be to award your client a

5

percentage in all the assets.

6

because it leaves the two parties fused together, which

7

is undesirable.

8MR DEVRIES: 9

That's why I've been concerned because the

I dislike doing that

Also, Your Honour, the downside of that from my

client's point of view is that a lot of these items or

10

sums that the defendant has got since separation are

11

probably unable to be located or valued or have been

12

devalued by his actions.

13HIS HONOUR:

Yes.

14MR DEVRIES:

My client is prepared to take the risk - sorry,

15

there's also his other business that he mentioned for the

16

first time today.

17

all these other properties may or may not have a value.

18

She is prepared to work on the basis that a worst case

19

scenario from her is that they all have negligible or no

20

value.

21HIS HONOUR:

She is prepared to (indistinct) that

You will need to persuade me that the formula you

22

have just really described to me would equate in broad

23

terms to what you say would be a reasonable division of

24

the properties should you succeed in showing there is a

25

domestic relationship.

26

classic case where a judge would ordinarily come to a

27

conclusion on a global basis.

28

translate that into an order to divide specific

29

properties.

30

if I find there was a domestic relationship I could only

31

find in terms of contributions on a global basis, and I

1.LL:DC 13/02/09 2Cressy

Now, it seems to me this is a

Now, he might then

I would have thought this was a case where

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DISCUSSION

1

would then need to convert that, if you wish me to make

2

orders on specific properties, I would need some comfort

3

that that doesn't either unduly enrich or impoverish your

4

client in terms of the proportion I ordered.

5MR DEVRIES:

It probably on the face of it I'd be arguing would

6

be less than my client would be ordinarily entitled to

7

but because of particular circumstances of this

8

case - - -

9HIS HONOUR:

It's getting late but I will just put you on fair

10

warning, Mr Devries, this is a difficult argument for you

11

to make because I can't do this by guess work so that you

12

may be able to find in the materials - and I spent some

13

of the time after this case adjourned trying to sift

14

through the materials to try and educate myself in that

15

way and derive evidence which could, if I do find in

16

favour of your client, enable me to do what I think is

17

desirable for the parties, but I couldn’t see it and I

18

would need some persuasion by you.

19MR DEVRIES: 20

I appreciate that, Your Honour, and unfortunately

it is not a situation I had anticipated.

21HIS HONOUR:

No, I understand that.

22MR DEVRIES:

I'm trying to work a way around it.

23HIS HONOUR:

I follow that but in case you thought I was going

24

to be in ready agreement with you.

25

persuasion on that issue.

26MR DEVRIES:

I will need

I'm also mindful in the absence of Mr Johnson

27

during the course of me making my address I will have to

28

be particularly careful not to make any mistakes or get

29

anything wrong.

30HIS HONOUR: 31

I follow that and it just makes it more difficult

but there we are.

1.LL:DC 13/02/09 2Cressy

Thank you for that.

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221

DISCUSSION

1MR DEVRIES:

I am sorry to keep you late, Your Honour.

2HIS HONOUR:

That's quite all right, Mr Devries, thank you for

3

commencing it.

4MR DEVRIES:

10.30 on Monday.

Thank you, Your Honour.

5ADJOURNED UNTIL MONDAY 16 FEBRUARY 2009

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DISCUSSION