Brothel Gate Day 16 Am

1MR DEVRIES:

That matter's are still preceding Your Honour.

2HIS HONOUR:

Yes, thanks Mr Devries.

3MR DEVRIES:

Your Honour given that we've started early it may

4

be that Mr Johnson may turn up at ten thirty although the

5

signs on Friday would suggest otherwise.

6HIS HONOUR: 7

notice that I have come in a bit quick off the mark.

8MR DEVRIES: 9 10

Yes, you think it's more prudent that I wait, I

I think there's a difference between the clock on

the other side of that door and the clock on this side of the door Your Honour.

11HIS HONOUR:

Yes.

12MR DEVRIES:

You've caught us out a couple of times.

13HIS HONOUR:

Yes, I'm sorry about that.

Well what I think I'll

14

do is discretion is the better part of valour, I'll set

15

my clock by the court clock and I'll just go outside for

16

two minutes.

17

until ten thirty, at the listed time.

18MR DEVRIES:

I think it is better that we don't commence

I think in view of the particular circumstance and

19

perhaps if that stage if he's not here if he could be

20

called.

21HIS HONOUR: 22

If Mr Richards could call him I'll do that.

Thanks Mr Devries, I guess (indistinct).

23MR DEVRIES:

Sorry about this Your Honour.

24HIS HONOUR:

No, that's a good idea.

25

(Short adjournment.)

26MR DEVRIES: 27

Perhaps if Mr Johnson was to be called,

Your Honour.

28HIS HONOUR:

Yes, Mr Richards would you mind?

No

29

appearance, Mr Richards?

30

purposes of the transcript I record that Mr Johnson is

31

not in court.

1.LL:CW 16/02/2009 2Cressy

Thank you.

Thanks.

Now, for the

Mr Richards, my associate, has three times FTR:2B

223

DISCUSSION

1

called his full name out in the corridor and aloud – the

2

voice of Mr Richards – and Mr Johnson has still not

3

appeared.

4

tipstaff has made me aware of some SMS messages received

5

from Mr Johnson out of court and perhaps I'll read them

6

into the transcript.

7

Now, I should say, Mr Devries, that my

You may be seated if you like.

He received one at 16.53 on Friday the 13th,

8

"Dear Mr Richards, please inform His Honour that I had

9

hoped to close my case just before or just after lunch so

10

that Mr Devries might finish today.

11

taught well-done is timely done and never to compromise

12

on quality to save time; rushing is a malaise of the

13

middling sorts.

Please acknowledge this message.

14

weekend wishes.

James Johnson." and at 16.55 Mr Richards

15

replied with a receipt acknowledged.

16

Mr Richards received another SMS at 5.02 p.m. "Thanks

17

Steve, you're a good man.

18

requires me again, would you text or call me.

19

Thursday was too close.

20

heavily attacked man.

21

James."

22

further message, "Steve, please apologise to Amanda on

23

Monday for me because she has to assist His Honour to

24

completely rewrite his draft judgment in this case.

25

Cheers.

26

Cheers.

(2) That I was

Best

In response,

If or when His Honour Last week

A really needed miss for this Please acknowledge.

Cheers,

Then at 5.15 Mr Johnson sent to my tipstaff a

James Johnson."

I should say that I regard all three SMS messages

27

as grossly improper.

Mr Johnson is a solicitor of 20

28

years standing.

29

any party to communicate in those terms to a member of the

30

staff of a Judge outside court, or indeed even inside

31

court.

He knows it is quite inappropriate for

Whatever was sought to be conveyed by those

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DISCUSSION

1

messages, I entirely ignore.

2MR DEVRIES:

If Your Honour pleases.

3HIS HONOUR:

I thought it's best to place them on the

4

transcript Mr Devries and also to record the fact that I

5

entirely disapprove of Mr Johnson's conduct in doing what

6

he did.

7MR DEVRIES:

If Your Honour pleases.

Your Honour, I wish to

8

draw your attention to a couple of – what I believe are

9

errors in the transcript of Friday.

10HIS HONOUR:

Yes.

11MR DEVRIES:

I say this with respect to the transcript writers.

12

They've had a very difficult job and whilst there's some

13

other possible mistakes that might have crept into the

14

transcript, they're probably self-evident.

15

what's going to happen with – what I suspect is going to

16

happen with this transcript, perhaps a couple of matters

17

should corrected, Your Honour.

18

personal interest but the first one, Your Honour, is on

19

p.1603 at Line 5.

But, given

One of them is against my

20HIS HONOUR:

Yes.

21MR DEVRIES:

That was actually Mr Johnson who said, "I would

22

not have given that evidence because I did not sign it."

23HIS HONOUR:

Yes, thank you.

24MR DEVRIES:

I'll be coming back to that a bit later on as one

25

of the - - -

26HIS HONOUR:

So, if the speaker at Line 5, p.1603 of the

27

transcript could be amended by deleting Mr Devries and

28

substituting therefore Mr Johnson.

29MR DEVRIES:

Yes.

I'll be coming back to that later on as one of the

30

many misrepresentations given or made by Mr Johnson

31

deliberately in his address.

1.LL:CW 16/02/2009 2Cressy

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225

DISCUSSION

1HIS HONOUR:

What was he referring to there?

2MR DEVRIES:

Sorry?

3HIS HONOUR:

Ah, Yes, I follow, yes.

4MR DEVRIES:

That's exhibit - - -

Exhibit J.

5HIS HONOUR:

Yes, Exhibit J.

6MR DEVRIES:

I'll take us to the transcript reference where he

7

gave evidence quite different to that.

8HIS HONOUR:

Yes.

9MR DEVRIES:

The other matter, Your Honour, is at p.1686,

10

Line 17.

This is the comment that I quite inappropriately

11

and improperly made across the Bar table to Mr Johnson.

12

What I in fact said was – or accused him was, state was,

13

"You stop because - - -

14HIS HONOUR:

Yes.

15MR DEVRIES:

- - - you stole them.

16HIS HONOUR:

Yes, so Line 17 should be, "You stole them."

17MR DEVRIES:

Or, "because you stole them."

18HIS HONOUR:

"Because you stole them."

Yes, I recall that

19

interjection by you and certainly you would not have

20

spoken in the terms that's recorded in the transcript

21

either.

22MR DEVRIES: 23

What I said, I shouldn't have said anyway but I

certainly didn't say "the dingo".

24HIS HONOUR:

No, and I don't think you would have and the - and

25

I would not want to hear member of counsel referring to

26

such an illusion.

27

p.1686, Line 17 – the words "the dingo" will be deleted

28

and the word will be substituted "Because you stole them."

29

Is that right?

Sixteen – and so the transcript at

30MR DEVRIES:

Yes, Your Honour.

31HIS HONOUR:

"Because you stole them."

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226

Thanks. DISCUSSION

1

I say again, Your Honour, that I acknowledge that it was

2

inappropriate and I apologise to this honourable court.

3HIS HONOUR:

I am sure you have and I accept your apology.

4MR DEVRIES:

Your Honour, on Friday I was listing Mr Johnson's

5

attributes, positive attributes.

6HIS HONOUR:

Yes.

7MR DEVRIES:

The major one that I omitted to state is that he

8

is constant - when he makes a point he is likely to

9

constantly reiterate that point.

Both in that sense and

10

in the sense that when he took issue with Your Honour's

11

rulings he was constant in his attitude to Your Honour's

12

rulings and his actions in respect to those rulings.

13

In the context of my reliance on what Mr Johnson

14

submitting to Your Honour being deliberate and his

15

various actions and his evidence in this matter being

16

deliberate, I would also draw attention, Your Honour, to

17

Mr Johnson stressing to Your Honour his oath upon being

18

admitted to practice, as it was then called, as a

19

barrister and solicitor of this honourable court.

20

referred to it on one occasion when he went back into the

21

witness box to continue to give evidence, and he also

22

referred to it on Friday in his submissions at p.1693

23

line 23 and 1694 line 12.

24

He

He would want Your Honour to believe that he treated

25

everything that he said from the Bar table as having the

26

quality of being truthful because he had given that oath,

27

and also in the context too that he had stressed that he

28

was a barrister and solicitor and had been for 19 years.

29

In a very back door method he tried twice to play the

30

card by denying that he was playing the card of

31

practitioner versus prostitute.

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227

DISCUSSION

1

I might say, Your Honour, in that context that on

2

the evidence that was before Your Honour he had

3

registered as a prostitute and one could use the line, I

4

have been dying to do this right through all of these

5

proceedings, in his case he is a solicitor or was a

6

solicitor in both senses of that term.

7

that a little bit in jest, the fact that he had

8

registered to work as a prostitute and held himself out

9

as a prostitute puts lie to the criticism that he makes

10 11

But whilst I say

of my client in that occupation. But there is a far more important aspect, that he

12

constantly complains about my client working more as a

13

prostitute for longer hours than he says that she held

14

out to him.

15

evidence, that her work as a prostitute extended right

16

from the beginning right through to the end, and whilst

17

he thought at some stages she might have taken a break

18

from that because of his activities, he would want Your

19

Honour to believe otherwise.

20

And he says, both in his submissions and his

The other edge of that two edged sword is that if

21

she worked as a prostitute he was never suggesting she

22

did that as an amateur or for no pay.

23

given evidence of the sorts of moneys that she would earn

24

for each client, and therefore if she did that work, she

25

incurred that income and there is no evidence from him,

26

not even a suggestion from him, that she flushed that

27

money down the toilet or that it has disappeared

28

somewhere out of the relationship.

29

He himself has

So insofar as she did work, this is further evidence

30

and corroboration I submit on behalf of the plaintiff

31

that she contributed to the relationship.

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228

Just whilst DISCUSSION

1

I'm on that part of his submissions, he repeatedly

2

submitted to Your Honour, both on Friday afternoon and at

3

other stages during the proceedings, that he could have

4

stood mute but he didn't and somehow he used that as an

5

argument to say that Your Honour effectively should treat

6

his submissions as a sort of no case submission.

7

But, Your Honour, ought to consider that my client

8

has the total onus of establishing her case and that he

9

could have stood mute and therefore Your Honour should

10

ignore anything that he said in terms of assessing my

11

client's credibility.

12

to run his no case submission he should have done that at

13

the close of my client's case.

14

have made her case a little bit more difficult because

15

most of the strength in her case, in my submission, came

16

from his evidence,

But in my submission if he wanted

I make no bones, it would

17Not from her evidence – his evidence in the context of her 18

evidence, not from her evidence alone.

19

run a case and he chose to run some positive points so

20

therefore either the task is to, with respect, to measure

21

up the respect of credibility of the two parties as

22

witnesses and their other witnesses or it is if he's

23

going to make positive assertions he has certain onuses

24

once he raises those, such as she never lived with me,

25

she didn't do this, she did this.

26

those in a more detailed fashion shortly.

27HIS HONOUR:

But he chose to

But I'll deal with

Well as I said to him on Friday, and in fact it

28

seemed to me his conduct during the trial satisfied me he

29

understood it, that whilst the legal onus lies on your

30

client on the issues of a relationship contribution and

31

the like, nonetheless there are evidentiary burdens which

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229

DISCUSSION

1

shift. as they do throughout a trial, particularly a

2

civil trial where a defendant does not have the benefit

3

of the presumption of innocence in a criminal trial.

4

sought to import in his submission, some of the concepts

5

one more often hears put to a jury of 12.

6

understood fully the evidentiary onus and that's why he

7

entered the witness box.

8MR DEVRIES: 9 10

Yes, Your Honour.

He

But he

Your Honour, with respect, has

put that better than I have.

But that's what I was

trying to put to Your Honour - - -

11HIS HONOUR:

And it really seems to me the real point.

12

Ultimately a client does, he's right, in this respect

13

your client bears the onus of satisfying me on the

14

balance of probabilities is the existence of the relevant

15

relationship and particularly the period of it and also

16

as to her contributions.

17MR DEVRIES:

I hope to address those shortly, Your Honour.

18

Your Honour, before I leave Mr Johnson's address and I do

19

say this in terms of – that whilst he was treated in

20

these proceedings as a litigant in person, and I don't

21

say that with any measure of criticism at all - - -

22HIS HONOUR:

Yes.

23MR DEVRIES:

But with respect quite properly he was treated as

24

a litigant in person, I submit that he wasn't just a

25

litigant in person and he didn't want to be portrayed as

26

just a litigant in person, but he was a litigant in

27

person who had very significant legal qualifications and

28

experience and, as I said on Friday, significant

29

intelligence and perception, well perhaps intelligence,

30

I'll leave perception aside.

31

I submit Your Honour should treat some of the statements

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230

And in that context is how

DISCUSSION

1

that he made in his address which were inaccurate.

2

The first one is with respect to Exhibit J which was

3

the letter signed by Sutton Johnson.

4

letter, Your Honour.

5HIS HONOUR: 6

It's a very short

Yes, I'll just see if I've got a copy of it.

think I have got that.

7MR DEVRIES:

Yes.

I

Yes, I've got that, thanks.

Now, in his address to Your Honour on

8

Friday, and that was at p.1602 of the transcript, he

9

denies that - - -

10HIS HONOUR:

Denies he signed it.

11MR DEVRIES:

Signed it.

12HIS HONOUR:

Now, my recollection is in his evidence he did and

13

that was my recollection when he was making the address

14

to me.

But I couldn't find that part of the transcript.

15MR DEVRIES:

If I can assist Your Honour, p.738.

16HIS HONOUR:

Seven three eight.

17MR DEVRIES:

Starting at Line 20, Your Honour, "Is that your

18

signature over the name Andrew Hawking?

It is, isn't

19

it".

20

purports to say that you're employed by Sutton Lawyers as

21

senior legal counsel as of 30 November 2007 at an annual

22

salary of $300,000 doesn't it", and he replies, "It does,

23

Mr Devries".

24

employed by Sutton Lawyers since a date in 1999, doesn't

25

it", he then gives a nonresponsive answer, the effect of

26

which is, "Yes, Sutton Lawyers and Sutton Johnson have

27

been one and the same for", and I interrupt, "No, no,

28

just answer my question", and he says, "Yes.

29

saying is correct, isn't it?

30

I put to him that it was not an accurate account of

31

affairs.

And he replied, "Yes, it is, Mr Devries".

1.LL:CW 16/02/2009 2Cressy

"And it

"It also purports to say that you've been

FTR:2B

231

What I'm

Yes, that is correct".

And

DISCUSSION

1

And then at the bottom of p.739 Line 30 I put to

2

him, "That letter is a lie, isn't it", and he says,

3

"There are statements in the letter which stretch the

4

truth.

5

when I was able to focus fully on my own earnings".

6

I put to him, "There's nothing in that letter that's got

7

any accuracy at all, is there?

8

$300,000 per annum on 30 November 2007, were you?

9

wasn't, Mr Devries.

They record the fact as they should have if and And

You weren't earning No, I

You weren't employed by Sutton

10

Lawyers because it was a pro bono firm at that stage,

11

wasn't it?

12

think, "and the legal alternative" – "It was simply in

13

the legal alternative it was me, it was one of my

14

business names, Mr Devries.

15

did it".

16

Well it was simply" – "It was simply" - I

It didn't employ you,

And he says not in a legal sense, no.

And further

17

on in answer to a question from Your Honour, Line 23 "So

18

you could not have been employed at a firm then" and he

19

replies "Correct, correct in a legal sense that's right,

20

yes."

21

couple of questions about the purpose of the letter and

22

you put to him "It seems to me you stated Mr Johnson that

23

the contents of this letter are untrue, is that right?"

24

and he replied "The contents are what the lender wanted

25

to hear to provide loan approval".

26

And over the page Your Honour had asked him a

That's important for a number of reasons Your

27

Honour, firstly it puts light to what he said in his

28

address to you, secondly it goes to his credit overall,

29

and if you read that consistently with the statements he

30

made about truth being like the tide, which I'll take

31

Your Honour to.

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232

DISCUSSION

1HIS HONOUR:

Yes.

It has a curious resonance doesn't it?

2MR DEVRIES:

It does Your Honour and clearly in my submission

3

right throughout this matter, throughout his dealings

4

with his lenders, with regard to the bank, with regard to

5

the tax office and so on, his resonance has been

6

effectively, well I tell people what they need to hear to

7

meet my purpose and in my submission he's tried to do the

8

same thing in these proceedings.

9

on exhibits, at about the same time he submitted that

Your Honour while we're

10

Exhibit L, which is one of the letters he wrote to

11

mortgagees, he portrayed the letter as saying one thing,

12

I'd submit Your Honour a fair reading of the letters they

13

say something quite different.

14

He says read that letter it corroborates my

15

assertion that "I was able to meet my debts as and when

16

they fell due".

17

letter's far more important for what he was trying to do

18

to thwart the plaintiff in her proceedings, and that is

19

that he was trying, quite blatantly as he says in that

20

letter, to minimise - to take actions which would

21

minimise the equity that would be available to her in the

22

event, which she thought was very unlikely, he says that

23

she would succeed in these proceedings.

24

That's a self serving statement.

The

He referred at around the same time to the report of

25

Ms Marion Love, or Marianne Love which is Exhibit 65 Your

26

Honour, and he tried to draw considerable comfort from

27

that report, it simply is to drawing on the sympathy

28

string before Your Honour, but the plaintiff takes

29

comfort from one line towards the bottom of p.4 of that

30

Exhibit.

31HIS HONOUR:

Yes, I don't think I've got a copy of it there.

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233

DISCUSSION

1

Just a minute I don't, if I could just go to 65 for a

2

minute.

3MR DEVRIES:

The beginning of the last paragraph on p.4 Your

4

Honour.

"James described being in a nine year

5

intermittent relationship with Pippin", two lines - two

6

sentences - won't take it out of context, you reported

7

that it has been through and large by the need to rescue

8

Pippin and her two boys.

9

had a daughter together Illyana.

Throughout the nine years they The reported break down

10

of this relationship concerns the well being of his

11

children and the consequent financial preference of

12

(indistinct) have all contributed to James' experience in

13

high stress levels.

14

Now to some extent those are accounts that he's

15

given of a situation with which the plaintiff would

16

differ but not withstanding that he says against interest

17

that there was a nine year relationship.

18

intermittent is used by her, throughout the nine years

19

they had a daughter together and the relationship broke

20

down.

21

proceedings Mr Johnson has tried to convince Your Honour

22

that there was no relationship or that it was a

23

relationship that was really incapable of breaking down,

24

it was just a relationship of people who knew each other

25

and he drew all sorts of weird comparisons of various

26

other forms of relationships.

27

The word

At various times through the course of these

If that was the only corroboration that I had to

28

rely upon to support my client's evidence that there was

29

a relationship, I'd be on very shaky ground Your Honour,

30

but I'm just putting it at this point as just another

31

item of corroboration that there was a relationship and

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DISCUSSION

1

it was over the period of time that Mr - that my client

2

asserts, and I'll come back to the affidavit that Mr

3

Johnson swore, but I'll be doing that a bit later on Your

4

Honour in the family law proceedings.

5

year period - - -

6HIS HONOUR:

Thanks David.

7MR DEVRIES:

Sorry Your Honour.

Whilst in the nine

Whilst we're on the nine year

8

period of the relationship which is consistent with -

9

that period is consistent with what my client asserts the

10

relationship was.

11

and, I'll come back to this point later on, but it is

12

important to her case that it is a nine year relationship

13

as distinct from a relationship of a much shorter

14

compass, because the contributions that a party can make

15

are going to be a lot less in two years in most cases

16

than they would be in nine years if it was a constant

17

form of contribution.

18

portray this argument that we were required to establish

19

a relationship of two years, no more, no less and that

20

that two years had to end within two years of the issuing

21

of the application, that is not the law and that is not

22

the situation, Your Honour.

So whilst Mr Johnson seemed to

23HIS HONOUR:

That's the minimum.

24MR DEVRIES:

That's the minimum.

25HIS HONOUR:

That's the minimum.

26MR DEVRIES:

It's not, with respect, Your Honour, it's not

27

necessarily the minimum.

28HIS HONOUR:

Not necessarily the minimum.

Two years is the

29

minimum.

Within two years of the date of issue of

30

proceedings is a prima facie position subject to I think

31

an application for extension, is it not?

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DISCUSSION

1MR DEVRIES:

It is, Your Honour, and there are a huge number of

2

cases around extensions and they just say that

3

effectively the hurdles that the applicant has to

4

overcome are not very high hurdles.

5

the relationship doesn't even have to be two years if

6

there is a child of the domestic partners, and that is at

7

sub-s.2A of s.281 of the Act as it then was, or:

8

failure to make the order will result in a serious

9

injustice to the domestic partner."

But the length of

10HIS HONOUR:

Yes.

11MR DEVRIES:

I am not relying on sub-s.2B, Your Honour.

12HIS HONOUR:

It's 2A.

13MR DEVRIES:

2A, if there was any suggestion that the

"A

14

relationship was less than two years.

15

picked up Mr Johnson when he started to resile from the

16

relationship of the parties whilst at South Yarra and he

17

had said well, a reasonable person would find that there

18

was a domestic relationship for that period, and the

19

period happened to be two years and about three months.

20HIS HONOUR: 21

But Your Honour

Curiously that is the period when he alleges your

client had two affairs.

22MR DEVRIES:

Yes.

23HIS HONOUR:

So - - -

24MR DEVRIES:

It was an allegation that - - -

25HIS HONOUR:

Without wanting to divert you, if he knew your

26

client still had two affairs and he still hung in there

27

for a relationship, that speaks something about his

28

degree of attachment.

29MR DEVRIES:

Yes, Your Honour, and degree of attachment comes

30

in as well in respect to his bonding with the two boys of

31

my client.

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DISCUSSION

1HIS HONOUR:

Yes, payment of education fees.

2MR DEVRIES:

Payment of education fees and it begs the question

3

if you accept his evidence that he made so many payments

4

to my client and I will be taking issue with some of

5

those, but if he did make all these payments or if he did

6

want to be seen to be making all those payments, why

7

would he do that if there was no a fairly close

8

relationship.

9

he went to extraordinary lengths to minimise the taxation

This is a man who has given evidence that

10

on his income, that's why he has this extraordinary

11

investing policy.

12

Now, a person who is that careful of not paying tax

13

is not going to be spending a vast amount of money

14

unnecessarily on a charitable activity, in my submission.

15

Now, Your Honour, whilst I am on the Act, the Act or that

16

part of the Act defines "children" for the purposes of

17

parts of the Act quite differently.

18

I have just read to Your Honour that the child of the

19

domestic partner is the child born of the relationship of

20

them, or a child adopted by the partners, which isn't the

21

case here, or:

22

the other partner is presumed to be the father under Part

23

2 of the Status of Children Act," that doesn't apply

24

either.

25

For the purpose that

"A child of one of the partners of whom

But there is another reference to "child" and that

26

is at s.285, the section dealing with orders for

27

adjustment.

28

"Contributions made in the capacity of home maker and

29

parent to the welfare of the other domestic partner, or

30

to the welfare of the family constituted by the partners

31

and one or more of the following:

1.LL:CW 16/02/2009 2Cressy

In sub-s.1B of that it talks about:

FTR:2B

237

a child of the DISCUSSION

1

partners," that's Illyana, "or a child accepted by one or

2

both of the partners into their household, whether or not

3

the child is a child of either of the partners."

4

If Your Honour upholds my submission that there was

5

a domestic relationship between the parties, two of the

6

members of that family were the two boys that were

7

accepted - well, the children of my client and they were

8

accepted as part of the household by Mr Johnson and in a

9

very significant way, because he gave evidence, to my

10

recollection, about family memberships of the zoo and

11

other places and that they went on excursions using that

12

and he took all of the children.

13

Again, I put that in that context and also in the

14

context where he says there was no evidence of any family

15

activities, and his own evidence was, well, I signed them

16

up to family memberships, we went out on family

17

excursions, and there was also evidence from both of them

18

that they went out to dinner a lot as a couple.

19

significance of "the child accepted by one or more of the

20

partners" will also go to the ongoing contribution of my

21

client up to the commencement of these proceedings or

22

later, pursuant to Gilda v. Procopets, and that is her

23

contribution as parent of all three children, not just of

24

Illyana.

25

The

An in that context, so the context of the two

26

boys being part of the family, if I could also refer to

27

Your Honour to Exhibit 19 which was his application in

28

the Federal Magistrates' Court proceedings where he

29

sought to have those two boys reside with him and under

30

cross-examination from me.

31

great deal of reluctance that he never sought to have the

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He eventually conceded with a

DISCUSSION

1

two boys deleted from that application and therefore that

2

application was sought by him right up until His Honour

3

Federal Magistrate O'Dwyer made the orders that have been

4

tendered before Your Honour, the final orders.

5

Now, returning back to the misrepresentations

6

made by Mr Johnson in his address, there is also his

7

uncountable references to discovery.

8

discovery, as that term was properly understood in these

9

proceedings.

10

Honour - - -

There was no

At best, there was the order of His

11HIS HONOUR:

Justice Wheelan in March - - -

12MR DEVRIES:

- - - Justice Wheelan - - -

13HIS HONOUR:

- - -of last year.

14MR DEVRIES:

12 March, yes.

15HIS HONOUR:

There's a limited order.

16MR DEVRIES:

A limited order and it was, so, essentially the

17

bringing to the court of documents.

18

that Mr Johnson perpetrated throughout his address, and I

19

think even in his evidence, was that the order made by

20

His Honour on 12 March was a consent order.

21

Your Honour.

22

of the order to suggest that it was an order by consent.

23HIS HONOUR:

The other inaccuracy

It wasn't,

There's nothing in the order – on the face

What were the – there were some – I think he's

24

really referring to what was in the other matters section

25

of His Honour's orders.

26

of the order?

How did they get into that part

Is that by consent?

27MR DEVRIES:

M'mm.

28HIS HONOUR:

You've got your court book there, it's at p.80.

29MR DEVRIES:

Yes, Your Honour.

30HIS HONOUR:

In fact, it sounds like it wasn't consensual.

31

It

was done - - -

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DISCUSSION

1MR DEVRIES:

I think it was done - - -

2HIS HONOUR:

- - - by your predecessor of his own motion.

3

Because what he said – what's recorded there is, "The

4

plaintiff's counsel advised the court the defendant could

5

collect the boxes of records presently in a shed at

6

Altona from the front porch of that address at 10 a.m. on

7

14 March and the defendant advised he would collect them

8

then."

9

made or stated as a proposition - - -

So, it sounds like that might have simply been

10MR DEVRIES:

Yes, Your Honour.

11HIS HONOUR:

- - - by counsel.

But, you say, the orders for

12

discovery there, limited discovery, were simply His

13

Honour's orders and not by consent?

14MR DEVRIES:

That's right, Your Honour.

15HIS HONOUR:

Go on.

16MR DEVRIES:

And, it was required of both parties and

17

absolutely nothing hinges on it but I've done a search of

18

the court documents that were briefed to me, which I

19

believe are very extensive and I couldn't find an

20

affidavit from the defendant anyway listing document that

21

he had - - -

22HIS HONOUR:

No, I don't think I've noticed one and then I

23

notice the matter came before Master Kings on 9 April and

24

effectively she reiterated the terms of the limited

25

discovery order.

26MR DEVRIES:

Yes, Your Honour.

27HIS HONOUR:

Which is clause 1, Mr Johnson was there.

28

Presumably he did not seek an order for discovery.

29

Presumably neither of you did.

30

the listing would have made such a broader order had she

31

been asked.

1.LL:CW 16/02/2009 2Cressy

I would have thought that

There you are. FTR:2B

240

DISCUSSION

1MR DEVRIES:

There – I have to advise Your Honour that

2

Mr Johnson did indicate to the court on at least one

3

occasion that he wanted the court to address the question

4

of discovery and Master Kings set the matter down for

5

Mr Johnson to pursue that application and Mr Johnson

6

didn't turn up - - -

7HIS HONOUR:

No.

8MR DEVRIES:

- - - and said, "No one told me it was on."

9

I

might say in the context of Mr Johnson not being here

10

today, I anticipate that later on he will criticise

11

what's gone on today because things went on whilst he

12

wasn't here.

13

Federal Magistrate O'Dwyer, orders of this court in

14

interlocutory steps.

15HIS HONOUR:

He's made that criticism of the orders of

Well, he had every opportunity to be here today.

16

I had told him in clear terms that I would be amenable to

17

him having a right of reply if there was something said

18

by you in your address which he had not anticipated or

19

couldn't – might not have been anticipated.

20

Notwithstanding my advice to him that he should stay,

21

he's gone.

22MR DEVRIES:

Yes, Your Honour.

23HIS HONOUR:

Having said that, I might imitate – I

24

might – I seem to be troubled by the same complaint.

25

You'll see often, from time to time, I will stand up

26

during your address to relieve pressure on my back.

27

Don't be off-put by that, you just keep going.

28MR DEVRIES: 29

If Your Honour pleases, and I say this with

respect.

If Your Honour at any stage needs a break - - -

30HIS HONOUR:

Yes.

31MR DEVRIES:

- - - I'm always happy to have breaks rather than

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241

DISCUSSION

1

talking.

2HIS HONOUR: 3

Mutually, Mr Devries, if you need a break, I'll

certainly give you one.

4MR DEVRIES:

Mr Johnson, during his submissions – sorry, during

5

his address repeatedly made reference to his application

6

to amend his counter-claim.

7

That could not be further from the truth.

8

one occasion, Your Honour, no more than one occasion with

9

respect, Your Honour indicated that Your Honour would

10

accede to an application by him to amend his counter-

11

claim provided certain conditions were met, that he put

12

it in writing, that the amendments didn't take the other

13

parties as they then were by surprise - and I don't think

14

I'm doing Your Honour justice and I don't wish to go to

15

the transcript because it would unnecessarily extend the

16

time, but on each - - -

17HIS HONOUR:

On at least

Yes, I recollect having stated to him the basic

18

principle of a trial of Willem J in the pleading

19

providing it doesn't provide undue injustice to the other

20

side, provided also that the amendment is put in writing.

21

The impression I must say I had throughout the trial is

22

that Mr Johnson did not want to do that.

23

preserve the very large counter-claim, and when I say

24

large I mean large in terms of how much paper it

25

consumes, as he has in the other proceeding and he didn't

26

want to bring it in part into this proceeding but rather

27

wanted to bring the whole of that proceeding into this

28

proceeding which self-evidently was impossible and

29

unworkable.

30MR DEVRIES: 31

I think that was part of it.

He wanted to

I might say that

it's large also in the relief that he is seeking against

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242

DISCUSSION

1

the 13 defendants.

He is seeking, on my instructor's

2

calculations, 11 and a half million dollars.

3

we are on that for just one moment, Your Honour - - -

So whilst

4HIS HONOUR:

Yes, I'm sorry, I diverted you.

5MR DEVRIES:

Yes, at p.574 of the transcript Your Honour says,

6

and it's one sentence:

"I would allow you to amend your

7

pleading subject to any issues of prejudice to the

8

defendants, however, this court is a court of pleading,

9

it is a common law court, the proceedings are by way of

10

writ.

You managed to deliver the defence into service

11

counter-claims against all defendants."

12

declined Your Honour's - if I can put it that way

13

- invitation:

14

my February 2008 counter-claims in which to ground my

15

counter-claims against David William Hanlon and Howard

16

Andrews Pty Ltd."

17

prove those facts."

18

Then of course he went on to his endless refrain of there

19

are other proceedings and Your Honour ought to bring

20

those into this matter.

He, Mr Johnson,

"I believe I have sufficient facts stating

Your Honour then said: And he said:

"You have to

"I appreciate that."

21HIS HONOUR:

Yes.

22MR DEVRIES:

Your Honour very, with respect, patiently

23

explained over and over again why that couldn't happen,

24

and that was one of the rulings that he had great

25

difficulty in hearing and accepting.

26

thing happened again - p.1007 of the submissions - sorry,

27

1006.

28

p.1006, top of p.1007.

29

consider whether he wished to do that and he again never

30

took up that invitation.

31HIS HONOUR:

I think the same

Your Honour made similar comments at the bottom of You gave him over lunch to

I think that might be at 1016.

Yes, that's right, I told him I would only accept

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243

DISCUSSION

1

an amendment if it was properly drawn, there was an

2

explanation why it was only proffered at a late stage.

3

Thirdly:

4

second and third defendants in the sense that they could

5

deal with new issues raised by them recalling witnesses

6

or further witnesses.

7

need to meet."

8

stating to him:

9

and carefully about whether you wish to amend."

"An indication of forensic disadvantage the

Those three conditions you would

Well, that's simply trite law that I was "So you would need to think very hard That's

10

right, I gave him the luncheon adjournment to consider

11

amendment.

12MR DEVRIES:

Then on p.1016 you asked him a number of times or

13

you sought on a number of occasions to get a straight

14

answer from him.

15

24, Your Honour asks him:

16

not?"

17

on:

18

not?"

19

a typically for Mr Johnson:

20

further?"

21

he had applied to amend his counter-claim and at no stage

22

had he applied to amend that counter-claim.

Towards the bottom of p.1016 at line

Mr Johnson said:

"Do you seek leave to do it or "In a word."

Your Honour goes

"You are not shut out, do you seek leave to do so or Mr Johnson:

"In one word answer, no."

Then, not

"Your Honour, may I explain

Yet in his address he seemed to suggest that

23HIS HONOUR:

Yes.

24MR DEVRIES:

Another thing that was in his address but was the

25

evidence, and in my submission deliberately was the

26

allegations regarding Mr Cochrane.

27HIS HONOUR: 28

Yes, I was wondering about that, I could not

recollect him putting them to your client.

29MR DEVRIES:

There is no one word Mr Cochrane put to my client

30

in her cross-examination, at least I have gone through

31

the transcript a number of times and I couldn’t find it.

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DISCUSSION

1HIS HONOUR:

Yes.

2MR DEVRIES:

Nor was there any evidence about Mr Cochrane from

3

Mr Johnson except in the context of him being called to

4

give evidence, and it was more - - -

5HIS HONOUR:

He alleged a relationship.

6MR DEVRIES:

He did, but that was during the course of saying

7

this is why I want Mr Cochrane, because that is the

8

evidence he is going to give.

9HIS HONOUR:

I thought in his evidence in the witness box he

10

alleged a relationship - I wish I had noted this now

11

because his evidence is quite lengthy - I may be wrong.

12MR DEVRIES:

There is certainly a reference at 495.

13HIS HONOUR:

Here it is, p.442.

14

dead accurate.

15MR DEVRIES: 16

That page reference may not be

I just summarised for my own purposes.

Sorry, Your Honour is correct, I hadn't gone to

that part.

17HIS HONOUR:

Here it is, the top of p.443.

18MR DEVRIES:

Yes:

"Where Ms Cressy is involved in a long term

19

intimate relationship with another gentleman, a Mr Peter

20

Cochrane, who I did not know at the time but there was

21

very nasty stalking behaviour that I was the victim of

22

and some identity theft that started happening."

23

were two other references to Mr Cochrane that I could

24

find.

25

sorry.

26

There

One was at p.475 I think it was, Your Honour, 495,

This is where he says:

"So much resources to keep

27

her going back from going into prostitution, because that

28

was not a good life for her and you can imagine the flow

29

on effects for the children, this is why this witness, Mr

30

Peter Cochrane, was so critical to the case.

31

independent evidence of the flow on and he was himself

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245

He can give

DISCUSSION

1

part of the substantial harm that the lifestyle brings to

2

the family unit."

3

the family unit and without a doubt whatever he alleges

4

Mr Cochrane did, it involved damage to him as part of the

5

family unit.

6

to Mr Cochrane and that's at 549.

Interesting, too, because he talks of

There was one other reference I could find

7HIS HONOUR:

That's not correct, 541 did you say?

8MR DEVRIES:

549, line 5.

9

This is in the discussion - it was

in the witness box but it was a discussion about bringing

10

Mr Cochrane to court, and I have said on p.548:

11

cannot conceive how - " - I don't think I said this word

12

"conceive", "but on the information I have had the

13

evidence of - " - "I will concede, however, on the

14

evidence I have held, the evidence of Mr Cochrane can be

15

of any assistance to Your Honour, and Mr Johnson says:

16

"Now, this man - if I'm saying too much please stop,"

17

this is over the page, "please stop me in a minute,

18

Your Honour."

19HIS HONOUR:

Sorry, where are you?

20MR DEVRIES:

I'm now over the page at p.549, line 2.

"I

"Now,

21

this man - if I'm saying too much please stop me in a

22

minute, Your Honour.

23

he wrote to me which I wish to tender in evidence that he

24

was in an intimate personal relationship with Ms Cressy

25

for about three years whilst she was living under my roof

26

at South Yarra and he observed her work in several

27

licensed, unlicensed, I don't know, several brothels,

28

Your Honour."

29

He says:

I believe from correspondence that

"I wish to tender in evidence."

So he

30

wishes to get Mr Cochrane in to give the evidence.

31

suppose I would have to concede that in a very indirect

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246

I

DISCUSSION

1

sense he may be giving that evidence.

2

that was put to my client.

3HIS HONOUR:

It's not something

Not put to your client and in the end of the day

4

Mr Cochrane, whether truthfully or otherwise, may well be

5

because of his medical condition didn't seem to recognise

6

anyone in this court, but Constable Locke, who had

7

evidence by way of admission from your client as to

8

nothing more than he had been a client in the brothel.

9MR DEVRIES: 10HIS HONOUR:

And that he had followed her home. He'd followed her home, stalked her, and whilst

11

she did say something about a relationship, in cross-

12

examination she agreed with you that such a relationship

13

may well have been confined simply to the relationship of

14

stalker and victim of stalker.

15MR DEVRIES:

Yes.

She was - Mr Cochrane, her and others were

16

witnesses called by Mr Johnson and then he did the

17

extraordinary thing in his addresses in each case

18

criticising his own witnesses, which I found that

19

somewhat extraordinary but (indistinct).

20

seeing a photograph here on my - on the Bar table,

21

they've got nothing to do with this matter.

22

mind again Mr Johnson's

23

Now, just

It brings to

Mr Johnson's changing position with respect to

24

Illyana, having conceded very explicitly that he takes no

25

issues with the fact that he was – she was his daughter

26

and then on other occasions saying she wasn't.

27

to great lengths to get into evidence, a photograph of

28

his – of him and his daughter and went beyond that and I

29

think possibly improperly, by having the photograph of

30

his daughter very clearly placed on the Bar table, face

31

up to Your Honour, as if hoping that would get it into

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247

He went

DISCUSSION

1

evidence or in some way affect Your Honour.

2

also, I suppose, behaviour that puts light to some of the

3

things that he said.

4

But, that's

Your Honour, a further misrepresentation in the

5

hearing is made by Mr Johnson in his address is at

6

p.1703, Line 12 of the transcript and this is where he

7

stated that Ms Cressy senior also admits to having some

8

mental health issues, serious depression episodes, some

9

serious drug-taking and alcohol problems.

She admitted

10

that under cross-examination.

11

from the truth, Your Honour.

12

took a wide range of prescription medication and that she

13

suffered from depression but she explicitly denied

14

illicit drug-taking and alcohol problems.

15

Nothing could be further She certainly said that she

Mr Johnson, in evidence from the Bar table – no,

16

sorry, at p.1714, put to Your Honour that I had made the

17

suggestion under cross-examination that he and my client

18

were living as pimp and prostitute.

19

anything along the lines of him pimping my client, being

20

a pimp or anything like that.

21

far as to say that he had registered.

22

1724 that there was evidence in the Family Court that had

23

him as drunken, violent, drug-taking, incestuous

24

paedophile.

25

provide the judgment.

26

suggestion made that Mr Johnson was any of those things.

27HIS HONOUR: 28

I never, ever put

As far as I, - I went as He also stated at

This is evidence from the Bar table.

I can

At no stage was there any

Well, I told Mr Johnson that I'm only concerned

with the evidence in this case, in any event.

29MR DEVRIES:

Yes.

30HIS HONOUR:

In fact, I put to him and I think then he – I'm

31

This goes in a positive - - -

pretty certain I put to him that if it goes to his credit

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DISCUSSION

1

that he bonded so well with - - -

2MR DEVRIES:

Yes.

3HIS HONOUR:

- - - Ms Cressy's children, you rely on that as a

4

point as showing the existence of the relationship but it

5

does seem that notwithstanding the very long work hours

6

that he had, he was the nonetheless able to sustain a

7

very good relationship with the three children.

8

that's the evidence before me.

9MR DEVRIES:

Now,

And, it does say a great deal for him, Your

10

Honour.

11

all working 80 hours a week plus, that says a great deal

12

of him and that notwithstanding that, that he's still

13

there, sufficiently to build up the sort of relationship

14

with the three children but in particular the two boys

15

that are admittedly not his two children.

16

at p.1726 that he'd provided ongoing child support yet

17

the evidence was that there was only one payment of

18

eighteen – of $800, in I think, August or September 2007.

19

I have to concede that working – well, first of

He also said

And, he then made the intriguing statement on

20

p.1726, Line 21, "The $2m that I was assessed as

21

creditworthy, based on my financials and loan

22

applications by the Commonwealth Bank."

23

breathtaking, given his admissions of the inaccuracy of

24

the information that he put to the lending institution

25

and the evidence that he candidly gave that all of the

26

financial information he gave them was two years out of

27

date and related taxable income that preceded the

28

applications by two years.

29HIS HONOUR:

That's

He nevertheless produced some financial evidence

30

to the lenders and they lent sums, which I think his

31

arithmetic's about right, about $2m.

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DISCUSSION

1MR DEVRIES: 2

I can't take issue with that because that – the

figures do stack up.

3HIS HONOUR:

Yes.

4MR DEVRIES:

And - - -

5HIS HONOUR:

It's pretty extraordinary, but - - -

6MR DEVRIES:

He gave evidence that he – that whenever – sorry,

7

that he bought the properties and whenever any equity was

8

achieved in the properties - - -

9HIS HONOUR:

Yes.

10MR DEVRIES:

- - - that was taken out to buy another property.

11HIS HONOUR:

Yes.

12MR DEVRIES:

And, it's the plaintiff's case that that was a

13

very precarious house of cards that he had erected and

14

that it worked well, firstly while he continued to work

15

and could meet the mortgage payments but also worked well

16

when the burden of making payments for other aspects of

17

his living expenses was borne by my client.

18HIS HONOUR:

Yes.

19MR DEVRIES:

And, as soon as she pulls her contribution out,

20

that's the beginning of the collapsing of the house of

21

cards and that's why, I'll be submitting a bit further on

22

that she's made a very significant, indirect financial

23

contribution to the acquisition of the properties.

24

say this, at this stage, Your Honour, or concede at this

25

stage.

26

It's not her case and I don't believe it ever has been

27

her case that she made significant or substantial direct

28

contributions to the mortgage payments on the property.

29

She did say that occasionally she advanced some cash

30

towards - - -

31HIS HONOUR:

I can

The deposits.

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DISCUSSION

1MR DEVRIES:

The deposits.

2HIS HONOUR:

That's all she said, in fact I think she very

3

freely acknowledged that he took the burden of the

4

mortgages and she paid the household.

5MR DEVRIES:

She said that was their - - -

6HIS HONOUR:

He paid the mortgages and utilities.

7

food and living expenses.

8MR DEVRIES: 9

She paid

Yes, and she was consistent in that and she said

that was their arrangement, that he took responsibility

10

for that and her evidence was that either he told her or

11

he told her to believe - the properties were put in his

12

name for various taxation reasons and also because he had

13

the capacity to borrow and she didn't have the capacity

14

to borrow.

15

contributions on his part but, as I will be coming to

16

hopefully not too much further down the track, he could

17

not have done that without her help and therefore her

18

help was significant, if not as financially substantial

19

as his.

20

In a sense they were very, very significant

If I (indistinct) there, Your Honour, I believe I

21

have to establish the relationship and I will come to

22

that in a second.

23HIS HONOUR:

Yes, that is your threshold point, question.

24MR DEVRIES:

Yes, before I do that just one more aspect of

25

Mr Johnson's submissions.

26

he said there were four legs to his submissions.

27

fourth one seemed to be, if I could summarise it as

28

representative conduct, and I think the other three were

29

that there was no relationship, that the plaintiff's case

30

relied totally on vive voce evidence and there was no

31

hard evidence and there were no financial contributions

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There seem to be four legs or

251

The

DISCUSSION

1

by my client.

I glean those to be the four points that

2

he made, but whilst I will answer those areas more to my

3

client's case than that.

4HIS HONOUR:

Yes.

5MR DEVRIES:

In respect to the relationship, Your Honour, he

6

submits that there is no evidence over and above my

7

client's evidence.

8

in my submission, as to the respective credit of the two

9

parties.

First of all, that begs the question,

The first matter I will address in respect to

10

credit is Mr Johnson's behaviour in this honourable court

11

and I submitted on Friday that he was trying to erect a

12

massive smoke screen and trying to divert everyone's

13

attention from dealing with the issues themselves, the

14

relevant issues head on.

15

In the context of him being an educated, relevantly

16

educated, highly intelligent, articulate person, the only

17

conclusion Your Honour could draw with respect is that

18

his behaviour was calculated and deliberate and it begs

19

the question if he was trying to prevent the matters

20

being dealt with head on, the proper issues, that could

21

only be because he was afraid of where dealing with the

22

issues head on would take him.

23

He also had an endless refrain of show me the

24

documents, show me your documents, put your documents

25

forward.

26

provide the documents because they had been stolen.

27

evidence, no clear evidence that Mr Johnson stole the

28

documents, but in my submission it is open to Your

29

Honour, with respect, to conclude that Mr Johnson's

30

constant theme of you have got no case without the

31

documents, you can't show me the documents, and his

My client gave evidence that she couldn’t

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No

DISCUSSION

1

accusations that my client took documents from him to

2

prevent him putting documents forward, leads to only one

3

conclusion and that is that he had taken the documents,

4

why else would he make a big issue of the documents.

5HIS HONOUR:

He gave an account as to how he on one occasion

6

entered, I think it was the Point Cook property, and

7

photocopied some documents.

8

them.

9

him on that.

He denied otherwise taking

My recollection is that you did not cross-examine I am not being critical of you, you

10

couldn't chase every rabbit down every burrow, but you

11

ask me to draw a conclusion against him which I could

12

only draw on the Briggenshaw standard in the face of his

13

evidence which has not been tested on that topic.

14

Whatever I find generally about his credit, he wasn't

15

cross-examined to my recollection on that topic.

16

be a tall order to ask me to find that he actually

17

specifically stole them.

18

to whether nonetheless I am not to draw a Jones v. Dunkel

19

inference against your client because she can't unearth

20

them.

21MR DEVRIES:

It may

It may be a different issue as

I didn't cross-examine him on that, Your Honour,

22

my submission - and I concede it's certainly not the

23

strongest point of my case - I hope it's not the

24

strongest point of my case - is that it is open for Your

25

Honour to draw that conclusion but on a Briggenshaw test

26

I have to concede that Your Honour couldn't do that.

27 28

But I am not pressing Your Honour to do that but I do raise that as a possibility.

29HIS HONOUR:

There are far - - -

What he really puts in relation to the

30

relationship is this, he put a number of submissions but

31

one of his submissions was well Ms Cressy produced a

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DISCUSSION

1

couple of documents from early in the relationship, the

2

Valentines Day card and I think another message is

3

attached to it.

4

photographs of family scenes, anything like that.

5

greater argument I think on documentation was directed to

6

the issue of contribution, just look at how they could

7

document their relationship.

8

on the relationship, chronologically you'll need to deal

9

with these points.

But there are no other documents, no His

But he did make that point

10

In relation to the existence of a relationship at

11

Geelong he referred to the birth certificate of Illyana

12

which put them at separate addresses, he claimed there

13

was an inconsistency in your clients evidence as to when

14

she moved from Illouera Grove to Gheringhap Street, he -

15

and there was another point on Geelong, yes he also - no,

16

no those are the major points on Geelong.

17

while he made the concession on cross-examination he did

18

submit well there's a large extended family there and

19

somehow or other that it militated against there being a

20

relationship at South Yarra as well as alleging your

21

client had a relationships with Cochram and a man called

22

Mark.

23

On South Yarra

He focused pretty heavily on Queen Street and said

24

apart from the mail direction there's no independent

25

evidence as to a relationship extending during that

26

period.

27

endorsed with the Queen Street address.

28

the fact that he had the Bourke Street offices and he

29

said "Well I didn't need offices because I was working

30

for Primelife in Bowen and they gave me offices of my

31

own" so he said that supported his evidence, he primarily

He referred to his licences which weren't

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He referred to

DISCUSSION

1

took those apartments for domestic arrangements.

2

they're some of the points he made.

I think

3MR DEVRIES:

Yes.

4HIS HONOUR:

And I spray them around to you, but they're some

5

points you will need to address on this aspect of the

6

case.

7

one and a half day address is trying to find little

8

specks of light in a very turgid dark whirlpool that was

9

confusing, had to go through his final address a few

10

times to try and pull out and extract the points that

11

really had some relevance to this case.

I must say getting those points out of his long

12MR DEVRIES:

I was hoping to deal with those in various ways.

13HIS HONOUR:

M'mm.

14MR DEVRIES:

Perhaps if I could deal with the - well the - - -

15HIS HONOUR:

Now I don't expect you to address them

16

immediately, but they're the types of points he's really

17

raising.

18MR DEVRIES:

I was intending to address them after going into

19

why, where there's a conflict in the evidence between my

20

client and Mr Johnson, you should prefer my client's

21

evidence.

22HIS HONOUR:

It's better you do it in the order you were

23

planning to do it otherwise I'll distract you from it, if

24

you can deal with those points as you get to them.

25MR DEVRIES:

I can deal with them now Your Honour.

26HIS HONOUR:

Well whenever you wish.

27MR DEVRIES:

Your Honour just bear with me for one moment, just

28

(indistinct) identify a particular - Exhibit F Your

29

Honour, this is the notorious affidavit.

30HIS HONOUR:

Yes, yes I've got that.

31MR DEVRIES:

In respect of that, the first submission I put to

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DISCUSSION

1

Your Honour is that Your Honour should draw the

2

appropriate Jones v. Dunkel inferences from the fact that

3

Mr Johnson did not call Ms Leanne Kelly, there's no

4

evidence before the court which she was not available to

5

be called.

6

call her and he repeatedly suggested, contrary to his own

7

evidence I might say Your Honour, that she was

8

responsible for the affidavit not reflecting his

9

instructions.

Mr Johnson repeatedly stated he was going to

10HIS HONOUR:

Yes.

11MR DEVRIES:

And his explanation for not calling her was hard

12

to follow but seemed to be along the lines of, "If I

13

called her I would rely upon legal professional privilege

14

and therefore she couldn't answer any questions" and Your

15

Honour did put to him in the course of that that

16

arguably, I'm summarising what Your Honour said, arguably

17

he'd waived professional privilege by the evidence that

18

he'd given in that respect and I'm not sure Your Honour

19

that legal professional privilege in respect to a matter

20

that's completed bears on this matter but - - -

21HIS HONOUR:

I think it would, but the fact is - - -

22MR DEVRIES:

It's an overlapping - - -

23HIS HONOUR:

Yes, but he'd - the real point is that it seems to

24

me in cross-examination he's very quick to say that the

25

verbiage was Ms Kelly, that in fact that he even raised

26

it with her, but relied on her judgment as to the wording

27

of that affidavit.

28MR DEVRIES:

M'mm.

29HIS HONOUR:

That was part of his explanation, the other was

30

the high tide, low tide explanation.

31MR DEVRIES:

I was going to come to the high tide, low tide

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DISCUSSION

1

shortly Your Honour but twice he gave evidence that he'd

2

signed each page of that document, that he swore it as

3

being true and correct in every particular and that he

4

accepted responsibility for it's contents.

5

the high tide low tide context that

He did say in

6

Your Honour should take his documentation in the

7

context of the audience for which it was written and that

8

at one stage he suggested, I can take Your Honour to the

9

transcript reference in a moment, that, what else could

10

you – what else could he do, he was desperate to protect

11

the boys, or – not quite those words but that was the

12

context.

13

evidence given by Mr Johnson in September 2007 that he

14

commenced a relationship with my client in about November

15

1998 and that's at Paragraph 2 of that affidavit.

16

he goes on to say in Paragraph 4, "The respondent and I

17

have lived or partly lived together from December 1998 to

18

January 1999 and from May 1999 to June 2007."

19

But, Your Honour, it quite clearly is sworn

Then

And, that is also consistent with his unvaried

20

application to the court – to the Federal Magistrates'

21

Court, which is Exhibit 19 where the same concepts are put

22

to the court and the application was never varied.

23

then he goes on to say, "The respondent and I have one

24

child together, Illyana Patricia Cressy born 9 June 2000."

25

There is no doubt there that he is asserting that Illyana

26

is his child.

27HIS HONOUR: 28

it?

And

This is the affidavit in that application isn't

That's - - -

29MR DEVRIES:

Yes.

30HIS HONOUR:

- - - Exhibit F of the affidavit in application

31

which is Exhibit 19.

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DISCUSSION

1MR DEVRIES:

Yes, it was filed contemporaneously with the

2

application, Your Honour.

You'll see on the top of both

3

of them, filed at Melbourne and the date stamp

4

14 September 2007.

I - - -

5HIS HONOUR:

Yes, I see.

6MR DEVRIES:

And, for the same hearing date obviously and in

7

the same - - -

8HIS HONOUR:

Yes.

9MR DEVRIES:

- - - matter.

10HIS HONOUR:

Same matter, yes, right.

11MR DEVRIES:

I'm not suggesting, Your Honour, that he signed

12

that application because he didn't.

That was signed - - -

13HIS HONOUR:

Yes.

14MR DEVRIES:

- - - quite appropriately and quite normally by

15

his solicitor but what I’m relying on is the fact that he

16

conceded in cross-examination that he never sought to

17

change or vary that application in any particular.

18

more importantly, he has gone on his oath as both a

19

litigant and as an officer of this court and of the

20

Federal Magistrates' Court to depose to the fact that they

21

were in a relationship and it's a relationship that spans

22

precisely the same period of time as my client's viva voce

23

evidence put it at.

24

But,

The only difference between my client's evidence

25

in respect to the period of the relationship and that

26

affidavit is as to precisely when the parties had a

27

separation mid relationship.

28

recall, I should say, that she gave evidence that they had

29

a break from January 1999 to May 1999 but she did give

30

evidence that they had a two month separation - - -

31HIS HONOUR:

I don't believe, or I can't

Yes.

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DISCUSSION

1MR DEVRIES:

- - - shortly prior to the birth of - - -

2HIS HONOUR:

Illyana.

3MR DEVRIES:

Illyana.

4HIS HONOUR:

Yes, my impression was that it was early 2000.

5MR DEVRIES:

Yes, Illyana being born in June 2000.

If there

6

was a two month separation shortly prior to her birth, it

7

would have to have been in the first five months of 2000.

8HIS HONOUR: 9

I have some recollection Mr Johnson did talk about

some sort of ruction in their relationship - - -

10MR DEVRIES:

Yes.

11HIS HONOUR:

- - - at times.

12MR DEVRIES:

And my client gave evidence that there was some

Do you?

13

relationship counselling with two different counsellors.

14

One was Ms Love and one was – I can't remember the lady's

15

name, I believe she gave evidence that that was at about

16

the time of the break that she says occurred just before

17

Illyana's birth.

18

context, digress for a moment and turn to the birth

19

certificate, Your Honour.

20

look at the birth certificate.

And, I might – If I can, in that

I'd ask Your Honour to have a

21HIS HONOUR:

It is Exhibit 9, isn't it?

22MR DEVRIES:

It's Exhibit 9.

23HIS HONOUR:

I think I've got that too, I'll just check.

24

I've

got a copy of it, yes, I've got that.

25MR DEVRIES:

Your Honour, I can't give evidence as to how birth

26

certificates are produced but the birth certificate has an

27

error in the spelling of Illouera Avenue and Mr Johnson

28

put to my client in cross-examination that the street

29

number was wrong and he said, "It's not number five but

30

it's number 12 that you lived at" and she more or less

31

agreed with him but

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DISCUSSION

1

indicated that she wasn't too sure of the address number.

2

But the first thing I would ask Your Honour to take

3

account of is the birth certificate, whoever provided the

4

information - if it was my client who provided it she

5

would have provided it very shortly after the birth of

6

Illyana, very shortly after there was a resumption of

7

their relationship and the two errors that are in the

8

address, in my submission, are Mr Johnson's doing and I

9

ask Your Honour to look at Exhibit D which is the AMP

10

application.

11HIS HONOUR:

Yes, I've got that.

12MR DEVRIES:

If Your Honour looks at - well, firstly that

13

document - - -

14HIS HONOUR:

It's the same spelling - it's not the same

15

spelling, it's a similar erroneous spelling of Illouera

16

Avenue though, isn't it?

17MR DEVRIES: 18

Yes, it's got a "v" there or what could be taken

to be a "v".

19HIS HONOUR:

"Illavera", yes, I follow.

20MR DEVRIES:

It's got a "5" in the address.

It is open for

21

that interpretation as to that, but more importantly this

22

home loan application is another document which puts

23

Mr Johnson - - -

24HIS HONOUR:

Yes, you put that in counter don't you really?

25MR DEVRIES:

Yes.

26HIS HONOUR:

Did he give any evidence as to who registered the

27

birth of Illyana?

28MR DEVRIES:

He suggested it must have been my client.

29HIS HONOUR:

But he didn't give direct evidence.

30MR DEVRIES:

No, and more importantly, the birth certificate,

31

it's filling in, it's contents were never put to my

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DISCUSSION

1

client.

2HIS HONOUR:

Yes.

3MR DEVRIES:

Mr Johnson complains that I cross-examined him on

4

documents that hadn't been put through my client, but he

5

cross-examined my client on documents that he later

6

produced that he hadn't finished her evidence.

7

is also another document, Your Honour, which comes out of

8

his Exhibit 1G which is Mr Johnson's tenancy application.

9

I will hand that up to Your Honour.

I haven't got a copy

10

myself.

11

because they're not part of the document.

12HIS HONOUR:

But there

I had better take my instructor's flags off it

She didn't seem to answer - I'd asked him who'd

13

registered Illyana's birth, and at p.420 it doesn't

14

really seem to say or seem to know, but that is a

15

digression.

16

there's an extract from 1G.

You take me now, the tenancy agreement,

17MR DEVRIES:

Yes, which is one of Mr - - -

18HIS HONOUR:

This is the tenancy application for 45 Nicholson

19

Street.

20MR DEVRIES: 21

It is, Your Honour, and is one of the documents

that were tendered by Mr Johnson.

22HIS HONOUR:

Mr Johnson, yes.

23MR DEVRIES:

What you call the loot.

24HIS HONOUR:

He has signed it.

25MR DEVRIES:

He has signed it.

26HIS HONOUR:

5 Illouera Grove is his present address, and

27

missed the spelling.

28MR DEVRIES: 29

Yes.

If Your Honour would - sorry, I'm going

too fast.

30HIS HONOUR:

Yes.

31MR DEVRIES:

If Your Honour will turn over the page you will

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DISCUSSION

1

see a photocopy of the document that Your Honour has

2

already seen, and that's his driving licence, which also

3

puts his address at 5 Illouera.

4HIS HONOUR:

Yes, and that's tendered actually.

5MR DEVRIES:

Yes.

6HIS HONOUR:

That's one of the exhibits.

7MR DEVRIES:

Yes, I will take you to it.

8

I think that might be

Exhibit K, the learners permit, number 03268 - - -

9HIS HONOUR:

This is a drivers licence which expires in June

10

2001 with obviously the sticker over it of Illouera Grove

11

misspelt.

12MR DEVRIES: 13

Yes.

Sorry to ask you a question, Your Honour,

does that have number 032685419 or - - -

14HIS HONOUR:

32685419.

15MR DEVRIES:

That was his learners permit, Your Honour,

16

Exhibit K.

17HIS HONOUR:

Thank you.

18

Exhibit K please.

19

permit.

20MR DEVRIES: 21

I will just check.

Could I have

No, it isn't, Exhibit K is a specific

Yes, sorry, it has the same number I understand

Your Honour.

22HIS HONOUR:

No, it's different number.

Exhibit K is

23

032685419.

I see, yes, no you're quite right, I

24

apologise, it is the same number.

25

is Exhibit K and that's a learners permit.

26

drivers licence which has the same number but I have a

27

feeling that licence is in - - -

Expiry 24 March 2009 You've got a

28MR DEVRIES:

It was, Your Honour.

48 I believe, Your Honour.

29HIS HONOUR:

That was the one I think he pointed to that

30

although it had Illouera Grove it never had Queen Street.

31

Yes, I've got that.

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Yes, it's the same number but it 262

DISCUSSION

1

physically looks a bit different and it's got actually

2

with the sticker of the Endeavour Drive over the top

3

of it.

4MR DEVRIES:

I think you deny that it ever had Illouera and we

5

were speculating as to what might have been under the

6

sticker.

7HIS HONOUR:

But the real point you are making, in any event,

8

and this is an example of a document that not only has he

9

signed a document giving his address as Illouera Grove

10

but at that time he had his licence endorsed to Illouera

11

Grove, he did give evidence that he did actually endorse

12

his licence to then, to Illouera Grove, I think he

13

repeated that quite recently because he'd moved out of

14

his matrimonial home and had nowhere else to put.

15MR DEVRIES:

He said in his address that he had asked my

16

client's permission to use her address which of course

17

wasn't put to her, but begged the question he had so many

18

other addresses she said he could have used.

19

is another aspect to that tenancy application, Your

20

Honour, that is extremely relevant, in my submission.

21

That is that he says that - sorry, that document was

22

dated 1 November 2000 and he said he had lived at

23

Illouera Grove.

But there

24HIS HONOUR:

For two years.

25MR DEVRIES:

Upwards of two years, which puts it precisely at

26

the date that my client says they started, around about

27

Cup Day - sorry, 1998.

28HIS HONOUR:

Late '98 she said.

29MR DEVRIES:

Yes.

30HIS HONOUR:

It's interesting because that document allows for

31

how many years and how many months and he's just put the

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DISCUSSION

1

two years.

2MR DEVRIES:

He himself submitted to Your Honour that he was a

3

man who was very precise about what he did and everything

4

was very tidy and well documented and there is no doubt

5

from the bundles of exhibits that he was very organised

6

with his paperwork, and for that I envy him.

7

another document which he tendered in the pink folder

8

here.

9HIS HONOUR: 10

There is

This is from 1K is it you've just given me.

I'm

sorry, 1G.

11MR DEVRIES:

And 1G as well Your Honour.

12HIS HONOUR:

Sorry, Mr Devries.

13MR DEVRIES:

Got to keep your Tipstaff - that's one way of

14

doing it.

15HIS HONOUR:

Keeping him moving, it's good for him.

16MR DEVRIES:

That was in the same exhibit, Your Honour.

17HIS HONOUR:

That's 1G is it?

18MR DEVRIES:

Would it be convenient for Your Honour to have a

19

five minute break now?

20HIS HONOUR: 21

Yes, look I'll do that, it's probably a good idea.

(Short Adjournment)

22HIS HONOUR:

Yes, thanks, Mr Devries.

23MR DEVRIES:

Your Honour, that document is interesting for two

24

reasons.

One is on the second - - -

25HIS HONOUR:

Now, this is also from Exhibit 1G.

26MR DEVRIES:

Also from Exhibit 1G.

Also one of Mr Johnson's

27

documents.

28

of the nature of the document and also because on the

29

second page of the document it gives his residential

30

address as 5 Illouera Avenue as at August 2000.

31

purports to be a table of assets and liabilities of both

1.LL:CW 16/02/2009 2Cressy

It's significant, in my submission, because

FTR:2B

264

It

DISCUSSION

1

Mr Johnson and my client and the only reason that one

2

would do that is if one was holding them out to be in a

3

partnership of some nature.

4HIS HONOUR:

Now, 1G again, they were documents relating to one

5

of the properties - Point Cook, Dorrington Street, yes.

6

That must have been for the financing of the acquisition

7

of Dorrington Street, was it?

8MR DEVRIES:

That's what the total - - -

9HIS HONOUR:

The topic in that - - -

10MR DEVRIES:

File.

11HIS HONOUR:

I wonder if I could have a look at that if I might

12

thanks, Mr Turnbull?

13MR DEVRIES: 14

the spine which is how Mr - - -

15HIS HONOUR: 16

Well that also, that says Point Cook, Dorrington

Street.

17MR DEVRIES: 18

I have looked the thing on the – the dyno tape on

It would either be the financing or if there was

any improvements to the property - - -

19HIS HONOUR:

Construction or something.

But you wouldn't be

20

giving the joint assets except for finance and

21

construction probably of the house it would seem.

22

And again the unusual spelling of Illouera.

23MR DEVRIES:

Yes, Your Honour.

24HIS HONOUR:

Yes.

25

Yes.

Now, that comes from this document too,

does it?

26MR DEVRIES:

It does, Your Honour, yes.

27HIS HONOUR:

Yes, thanks.

28MR DEVRIES:

Now, in my submission, that together with his

29

licence, the AMP application - and I think there's a

30

redirect, I have to check that, puts him fairly and

31

squarely at Illouera for two years up to the end of 2000.

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DISCUSSION

1

And thereafter he moves to South Yarra and he makes

2

no - - -

3HIS HONOUR:

And they both go to Gheringhap Street.

4MR DEVRIES:

Gheringhap.

5HIS HONOUR:

He says he went and the plaintiff did not.

6MR DEVRIES:

And she's clearly given evidence that she did,

7

whilst maintaining the Illouera property which seems to

8

have been good sense on her part if they had a separation

9

(indistinct).

10

But after Gheringhap there is that

property at 45 Nicholson Street, South Yarra.

11HIS HONOUR:

Yes.

12MR DEVRIES:

Where he concedes that the gentleman who rides the

13

Clapham Omnibus would conclude they lived in a domestic

14

relationship.

15HIS HONOUR: 16

Domestic relationship.

He denies it but he says a

reasonable mind might come to a contrary view.

17MR DEVRIES:

Yes.

And that puts another two and a quarter

18

years at the relationship and again Nicholson Street is

19

consistent with his affidavit and his loan application

20

and if - that's consistent for those more than four

21

years, in my submission - - -

22HIS HONOUR:

When you say loan application - - -

23MR DEVRIES:

The AMP loan application which was Exhibit D.

24HIS HONOUR:

Yes.

25MR DEVRIES:

That also had him at Illouera as his residential

26

address.

27HIS HONOUR:

Yes.

28MR DEVRIES:

Exhibit C which is a driving licence had him

29

there.

Your Honour, could I just have a look at

30

Exhibit G for one moment please?

31

these cards he says is missing, but he puts his address

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266

Exhibit G was one of

DISCUSSION

1

at - that's where he calls her his husband.

2HIS HONOUR:

Husband, yes.

3MR DEVRIES:

Her address is 5 Illouera.

4HIS HONOUR:

5 Illouera with a funny spelling again.

5MR DEVRIES:

Yes, Your Honour.

6

Your Honour, could I just have

a look at Exhibits H and O for one minute.

7HIS HONOUR:

H and - - -

8MR DEVRIES:

O, "O" for Oscar.

9HIS HONOUR:

Yes.

10MR DEVRIES:

Exhibit O is the redirect mail from Queen Street

11

and Mr Johnson has explained it as, well, I needed to

12

redirect mail in case it was - - -

13HIS HONOUR:

In case bills weren't paid.

14MR DEVRIES:

Yes:

"And I put down "Sutton Johnson", because

15

that would ensure that any business mail would be

16

redirected without me paying the additional amount for a

17

business redirection."

18

another count against him on the credibility stakes.

19

has admitted he is prepared to effectively defraud

20

Australia Post on redirection costs.

21

client's point of view it is also evidence that the

22

family resided at Queen Street because of the references

23

to Sutton Johnson.

24

Which is, in my submission, yet He

But from my

As my instructor quite rightly points out, that

25

redirection explanation was given by Mr Johnson this year

26

when he stepped back into the box and took the liberty to

27

reopen some of his earlier evidence, and it is in

28

contradiction to what he said about the same document

29

when he was cross-examined by me last year.

30

before we move totally away from Mr Johnson's affidavit

31

it behoves me to draw Your Honour's attention to first of

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267

Your Honour,

DISCUSSION

1

all transcript at p.697.

2HIS HONOUR:

Last year I must say in re-examination at 969 -

3

before we get to that next reference - my note is in

4

relation to Exhibit O:

5

Altona in case the utility bills went there which the

6

plaintiff did not hand over to me."

7

paraphrase, so he did give that explanation last year in

8

re-examination.

9

him he then went through a number of points.

10MR DEVRIES:

"I redirected the mail from

Now, that is my

You will recall after you cross-examined

He also said:

"Australia Post have a different

11

charge for mail direction depending whether it's

12

residential, business," and he says that - this is on

13

p.968:

14

Queen Street."

15

utilities, there is no suggestion Sutton Johnson was

16

paying utilities.

17HIS HONOUR: 18

"Mail would be addressed to Sutton Johnson at So it begs the question, apart from

That Sutton Johnson letter is addressed to Queen

Street.

19MR DEVRIES:

That was his evidence on p.968.

20HIS HONOUR:

That's of more moment, is it not?

21MR DEVRIES:

Yes, Your Honour.

22HIS HONOUR:

If he's not living there it's a curious thing to

23

do for a solicitor.

24MR DEVRIES:

In all fairness I perhaps should read the whole.

25HIS HONOUR:

Yes, I think you should.

26MR DEVRIES:

It's a little bit confusing.

"The reason I did

27

that was a) Mr Sutton Johnson was because some of those

28

premises, definitely not Queen Street, Altona mail to

29

Sutton Johnson will be directed to me.

30

have a different charge for mail direction, you have got

31

- depending on whether it's residential or business."

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268

Australia Post

DISCUSSION

1

And Your Honour says:

2

is why did you redirect mail from Queen Street, Altona if

3

you had not been living there?"

4

the utilities were in my name.

5

electricity bills would come and Ms Cressy just would -

6

she'd forget to hand over to me.

7

says Mr Sutton, Mr James Sutton, I think it says in the

8

third line that's just a silly mistake.

9

never been my name, it was meant to be Sutton."

10

"That's irrelevant.

The question

And he said:

"Because

There were occasions when

Further on where it

Of course it's

And when we resumed this year, he – and then

11

takes us to it.

12

reference, Your Honour.

13

written – it's at Line 11, "I've written down Mr James,

14

Mr Sutton James or something in that form the loan

15

application forms.

16

looked at that I realised I wrote 45 rather than five.

17

lot of these invites show these redirections.

18

Johnson or James Sutton."

19

Johnson or Sutton Johnson mail was redirected.

20

do that with all my properties.

21

especially with Queen Street, Altona because all the

22

utilities were in my name.

23

name."

24HIS HONOUR: 25

He does say at p.1295 that, I've

I looked at it, it wasn't until I A

Only

It says here that, "James I had to

I had to do that

The water bills too in my

And he'd said that he's a water industry lawyer. His explanation for that he says that he wanted to

make sure he got all the bills.

26MR DEVRIES: 27

It will take me a moment to find that

Yes, it's a bit confusing as to whether it's

Sutton Johnson there or not.

28HIS HONOUR:

Yes, I agree with that.

Now, I diverted you.

29

were about to take me to a piece of transcript or

30

something.

31MR DEVRIES:

You

I was about to, yes.

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269

DISCUSSION

1HIS HONOUR:

Yes, I'm sorry.

2MR DEVRIES:

Your Honour, it was – this is at the bottom of

3

p.702 of the transcript.

I've just lost my place, Your

4

Honour, I'm sorry.

5

of pages I put to him specifically the various parts of

6

Exhibit F, including, "Their mother and I are no longer

7

in a relationship."

8

bottom of p.703, "Since the respondent and I ceased

9

living together or partly living together I've continued

From p.702 there are some – a number

The bottom of p.702, and since – the

10

to support her."

11

page – the top of p.704, Line 3, "Mr Devries asked you a

12

question.

13

Did you tell the truth there?" to which he replied, "Of

14

course, I told the truth, Your Honour.

15

And, then he sought to qualify that by saying, "I have

16

continued to support her until she moved out of the Point

17

Cook house."

18

And, Your Honour says – asks him on

Is the first sentence at Paragraph 7 true?

Yes, it's true."

At the top of p.706, I'd asked him, "The

19

question is that your perception in September 1997" that

20

should have been, I think, 2007, "of your relationship

21

with my client and her two sons and ultimately your

22

daughter was such that you could approach the court

23

seeking joint or equal shared time with respect to both

24

boys and equal share of parental responsibility with

25

respect to both boys.

26

plus he said, he needed a change from his own word and

27

Your Honour stepped into the fray or into the argument

28

between Mr Johnson and I and said well, "The answer to

29

the question that in September 2007 he regarded those two

30

boys as his children" and he replied, "Your Honour, I

31

regarded Treece, Skye and Illyana as my children as much

1.LL:CW 16/02/2009 2Cressy

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That's correct, isn't it?"

270

And,

DISCUSSION

1

as David, Dylan and Jessica" being children later

2

referred to as the Johnson children.

3HIS HONOUR: 4

I notice he says at p.706 he even took Ms Cressy

and the children on an overseas holiday.

5MR DEVRIES: 6

Yes, in the winter of – and we discussed adoption. And, then he agreed that he described himself as the

7

"Father of Skye and Treece although in legal he's my

8

family lawyer for the purpose of these proceedings

9

described me as step-father", and over the page p.2, 707

10

Line 16, "The short answer is yes, yes you did refer to

11

yourself as Ms Cressy's husband and you say that was in

12

the period you lived together at South Yarra and the

13

period you lived together at Point Cook", to which he

14

said "Yes, yes", and that probably continued on after

15

they're not living on together.

16

QUESTION:

"For how long did that continue on?",

17

ANSWER:

18

during the periods when things are running smoothly", as

19

much as he explained.

20

that, up to 2007 is it?", ANSWER:

21

that far".

22

address to Your Honour he took issue when the separation

23

occurred saying it was Easter 2007 rather than what my

24

client said, later in 2007 and then he later referred to

25

that as one of the break points, whatever that might

26

mean.

27

"Look I don't know Your Honour.

QUESTION:

It would be

"Well what period is "No it wouldn't be

I might point out Your Honour that even his

And then we go onto him referring to himself as her

28

husband, husband, lover and friend, and then he tried to

29

qualify that p.708, "Yes, I describe myself in four ways,

30

as a husband, a lover, a friend and a pen pal we were

31

definitely not living together", and of course it's at

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271

DISCUSSION

1

that time he starts using Sutton as part of his firm

2

name.

3

Cressy Sutton.

4HIS HONOUR: 5

And he has written an envelope with the name James

What was that, was that that exhibit you were

referring to?

6MR DEVRIES:

Yes.

7HIS HONOUR:

Exhibit?

8MR DEVRIES:

H.

9HIS HONOUR:

Yes.

10MR DEVRIES:

I might say in the ensuing pages there's a fair

11

bit of evidence on his part of his, he used the word

12

confusion and contention of the fact that my client

13

continued to work as a prostitute.

14

a point of contention between them and we then went on -

15

I then went on to ask some questions about the efforts he

16

went to to try and dissuade my client from continuing to

17

work as a prostitute.

18

perhaps I should, while we're on - talking about the

19

affidavit move on to first of all p.908 of the transcript

20

which is where he - sorry 907 first of all at the bottom,

21

this is where we talk about the labels on the driving

22

licence.

I put to him that was

Your Honour I think at this point

23HIS HONOUR:

M'mm.

24MR DEVRIES:

They were immediately beneath they would either be

25

my proof department, maybe but it was probably to

26

Dorrington Street, because the address on the licence

27

would have matched my banking documents and as I don't

28

check Dorrington Street, all of my mail would have been

29

directed to my GPO from 2 Dorrington Street.

30

on Line 12 of p.908, "Now if I may digress on to that

31

point only to say well, that is simply an address of a

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272

And he goes

DISCUSSION

1

residence that I have.

One of the reasons for not

2

changing my formal address was VicRoads and the tax

3

offices for borrowing purposes, borrowers like to see

4

consistency in documents.

5

know, at least two years employment, or three years of

6

self employment and they like to see some stability in

7

your residential address, and as I owned a residence I

8

still even to this day don't think that if you have a

9

choice of residences to list changing things

They like to see you in, you

10

unnecessarily means something in distinct you'd change",

11

there was a move from Nicholson Street, a bit further on,

12

"There was a move from Nicholson Street to Dorrington

13

Street, I still don't even, today 2 Dorrington Street,

14

when on that basis there's nothing to change".

15

And then we get to p.919 of (indistinct) transcript

16

which is his explanation of how Exhibit F came into

17

being.

18

p.919, "You've rightly identified that there appears to

19

be a discrepancy between the contents of your affidavit

20

and what you have been putting to this court.

21

explain to me that you, as I understand it, told Ms Kelly

22

that you have put to this court, what you have put to

23

this court about your living arrangements and that based

24

on that she advised you the affidavit should take the

25

form that it's in.

26

court?"

27

And his reply:

28

happy to swear my oath in," and indistinct words, "yes,

29

Your Honour, yes."

30

putting."

31

- actually wrote it out?"

Your Honour asks him this, this is Line 7 of

Is that what you're putting to this

"The proviso that provided that I was

Mr Johnson:

You asked:

1.LL:CW 16/02/2009 2Cressy

Can you

FTR:2B

"That is what I'm

"Who actually drafted out for that "Ms Kelly drafted it in front

273

DISCUSSION

1

of me," says Mr Johnson.

You asked:

2

the contents of it?"

3

content to depose as to the truth of it?"

4

"Yes."

5

goes on:

6

He replies:

7

entitled to rely on that affidavit there of course being

8

the truth?"

9

"So I'm entitled insofar as it contains any admission

He says:

"Yes."

"Yes, and you knew "And you were He says:

And if I might just say to summarise Your Honour "If it was untruthful would you have sworn it?" "No, Your Honour."

You ask him:

"Am I

He doesn't respond, so Your Honour says:

10

to regard those admissions by you as truthful admissions

11

on oath."

12HIS HONOUR:

He gets line 11 to "high tide, low tide".

13MR DEVRIES:

Yes:

"Truth can be told it's in a broad range of

14

desorption, you can put the truth at its strong suit, put

15

the truth at its weakest remains the truth."

16

tried to enter the fray at that stage, and I'm glad I

17

didn't.

18HIS HONOUR:

I foolishly

It's an extraordinary attitude to telling the

19

truth by an officer of the court - by anyone - but by an

20

officer of the court who tries to profess to take the

21

oath he took as a barrister and solicitor 20 years ago as

22

of great import to him.

23

submissions.

24MR DEVRIES:

Sorry, I interrupted your

So we get there and having given that

25

extraordinary philosophical description of his attitude

26

to the truth he then says at the bottom of p.922, line 27

27

- sorry, line 14:

28

paragraph falls within the boundaries of truth."

29

27:

30

depend on the speaker, the recipient and the constraints

31

of the circumstances."

"I am saying that what is in this At line

"That was the point I was making, that the truth can

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And Your Honour asked: 274

"Is that DISCUSSION

1

your understanding of the truth?"

2

Your Honour."

3

He replies:

"Yes,

He tries to then avoid the blame for the affidavit

4

line 11, p.923:

"The second point was about the original

5

application for Treece and Skye now that - as well as

6

Illyana.

7

me that I was the person interested in the welfare of the

8

two children and had standing to bring the application.

9

That went against my better judgment.

That was solely acting on Ms Kelly's advice to

I did that and it

10

went contrary to the free, casual off-hand advice I had

11

received from one other Family Law specialist.

12

the advice from a new credited Family Law specialist,

13

Ms Leanne Kelly, who I assumed to have expertise in the

14

area."

That was

15

Ms Kelly was not called to give that evidence and

16

Your Honour can draw the inference that if she had been

17

called she wouldn't have given that evidence.

18

respect, if I can adopt what Your Honour said, for

19

somebody who belabours the point that he's a barrister

20

and solicitor to this court, he has been such for nearly

21

20 years.

22

did indirectly try to play the card well I'm the lawyer

23

so therefore you have got to accept what I say, against

24

someone who is not a lawyer, and said to Your Honour that

25

he sees that he has a higher duty to tell the truth than

26

an ordinary witness because of the oath that he swore.

27

With

I think he has used the word "honourable".

He

For him to say that, Your Honour, and effectively to

28

say I will tell whatever truth is necessary to achieve

29

the end that I wish to obtain - that's what he says

30

there, that's what he said in respect to his various

31

applications for finance.

1.LL:CW 16/02/2009 2Cressy

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That's what the lenders want

275

DISCUSSION

1

to hear, that's what I'll tell them in terms of where he

2

lived, what his financial situation was.

3

clearly conceded that his AMP - I think it was his AMP

4

application, one of his later financial applications was

5

inherently inaccurate.

6

And he quite

So that brings me back to the respective credit of

7

the two parties.

There is what I have just drawn Your

8

Honour's attention to.

9

There is his behaviour in court.

There are the finance documents. There are the mistruths

10

that he deliberately told the court during his address,

11

all of which in my submission militate against Your

12

Honour preferring his evidence where it contradicts my

13

client's evidence.

14

There is probably a further limb to that, if there

15

was anything necessary.

16

can take Your Honour to the transcript references if

17

necessary - Your Honour at one stage sought to give him a

18

warning in respect to his taxation documentation and he

19

declined that and said, I feel I'm safe, but he seemed to

20

concede in his evidence that he hadn't been extremely

21

frank with the Australian Taxation Office either, or

22

VicRoads he would have us believe.

23

reasons I submit that Your Honour, with respect, should

24

find that there was a relationship between the parties

25

through the period late 1998 to approximately August -

26

sorry, May 2007.

27

this stage, whilst we're still on the relationship, to

28

the legislation, the Property Law Act.

29HIS HONOUR:

Your Honour at one stage - and I

So for all those

Your Honour, I was going to take you at

Before we go there, is any other evidence, apart

30

from Exhibit O, that supports your client's evidence that

31

they were in a relationship at Queen Street?

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276

That was DISCUSSION

1

one of the points being constantly made by the defendant.

2

He did himself say he did stay there overnight twice

3

every fortnight or something, so it wasn't as though he

4

completely cut his ties, even on his version of events.

5MR DEVRIES:

And he has continued to support the family and my

6

client's evidence which she really wasn't challenged on

7

and his affidavit.

8

relationship up to a month longer than she does.

9

submit is that - - -

10HIS HONOUR:

His affidavit in fact takes the What I

He also did say that he had been planning to go

11

away on a holiday with the plaintiff in April 2007 for

12

Easter.

13MR DEVRIES:

Yes, Your Honour.

14HIS HONOUR:

When that fell through he went away with one of

15

his girlfriends or something, but that would seem to

16

indicate some level of the relationship still going at

17

that time out of his own mouth.

18MR DEVRIES:

Yes, absolutely, Your Honour.

I am just going to

19

briefly take Your Honour to the definition of domestic

20

relationship in s.275 of the Property Law Act as it then

21

was.

22

"In determining whether domestic relationship exists or

23

has existed all the circumstances in the relationship are

24

to be taken into account, including any one or more of

25

the following matters as may be relevant in the

26

particular case."

Parliament has assisted Your Honour by saying that:

Does Your Honour have - - -

27HIS HONOUR:

I've got it.

28MR DEVRIES:

"A) the duration of the relationship," and

29

Mr Johnson and my client both put it at nine years with a

30

couple of one or more short separations.

31

extent of the common residence."

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277

"The nature and

In my submission the DISCUSSION

1

evidence clearly points to him living at the same

2

residences, different ones at different times but

3

continually with a couple of short separations between

4

the end of 1998 and April, May or June 2007.

5

sexual relationship.

6

frequent sexual relationship.

7

There was a

He says an intermittent, not very

My client was never asked any questions by him on

8

that, but it was a sufficient sexual relationship to give

9

rise to the birth of Illyana.

"The degree of financial

10

dependence or inter-dependence and any arrangements made

11

for financial support between the parties."

12

provided her and the family and her mother with extensive

13

support right through and continuing.

14

had a joint arrangement where he provided mortgage and

15

utility payments and I paid the housekeeping.

16

way on either count there is a degree of financial

17

dependence or inter-dependence.

18

He says I

My client says we

So either

"The ownership, use and acquisition of property."

19

At this stage it's the use of the properties that I rely

20

upon.

21

properties are in his name.

22

saying that's the end of it, you should look at the legal

23

title.

24

do we have Part 9 to the Property Law Act and the

25

equivalent provision s.79 and so on of the Family Law

26

Act.

Mr Johnson is correct when he says that all of the Where he is incorrect is

If that was correct, as he submitted it, then why

27

"The degree of mutual commitment to a shared life."

28

That depends on whose account of the evidence Your Honour

29

accepts.

30 31

"The care and support of children."

That was

belaboured extensively by Mr Johnson that he went to

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278

DISCUSSION

1

great lengths, he says, to care and support not only his

2

child but the other two children.

3

public aspects of the relationship."

4

there was no evidence of that.

5

from anything else there was all the joint family

6

memberships, that's holding out to those people.

7

was the going out on those excursions together.

8

address Your Honour as to the evidence of Ms Dek-

9

Fabrikant afterwards.

10

"The reputation and Mr Johnson says

My submission is apart

There I will

So, in my submission, there is evidence that each of

11

those factors militates in favour of the relationship

12

that the parties had being a domestic relationship for

13

the purposes of the legislation and I was hoping then to

14

move on to contributions.

I'll spend a few moments - - -

15HIS HONOUR:

Well, it's up to you, Mr Devries - - -

16MR DEVRIES:

I may as well, Your Honour.

17HIS HONOUR:

You can use the time we ought to.

18MR DEVRIES:

Yes, yes.

I can't sort of cut time short and then

19

criticise Mr Johnson for doing the opposite.

20

Honour, the contributions that are alleged, sorry, that

21

are asserted by the plaintiff to have been made to the

22

relationship cover a number of categories.

23

contribution as homemaker and parent.

24

relationship, on Mr Johnson's evidence, there could only

25

have been one principal homemaker and parent and that was

26

my client because he says, "I was never there.

27

only a visitor.

28

from time to time, yes I did."

29

he must have done some parenting tasks to get to the

30

relationship that he had with the children but he hasn't

31

performed any of those tasks since the separation because

1.LL:CW 16/02/2009 2Cressy

Your

There's the

If there was a

I was

Yes, I did help with a bit of washing-up

FTR:2B

279

And, it's undeniable that

DISCUSSION

1

– sorry, he did for a short time and then there have been

2

court orders that prevent him having that and doing that.

3HIS HONOUR:

But, your real evidence – your real point is, if

4

there was a relationship then they're almost heatedly ad

5

idem that it was your client who bore the principal

6

burden of being the homemaker and parent.

7MR DEVRIES:

Yes and she says because he was out working long

8

hours and earning the substantial income that he earned.

9

He says, well – on his evidence, he couldn't have done

10

much because he wasn't there.

11

between the two parties on the long hours that Mr Johnson

12

worked.

13

when he wasn't putting in those long hours.

14

"He lived with us."

15HIS HONOUR:

There is a consistency

Where the inconsistency lies is where he lived She says,

I must say, it made me curious as to why he's

16

complaining about not getting much sleep during this case

17

given the evidence as to the very long hours he's given

18

to work.

19MR DEVRIES:

Yes, Your Honour.

20HIS HONOUR:

I just make that observation in passing.

21MR DEVRIES:

I – as tempted as I am from time to time to play

22

the man - - -

23HIS HONOUR:

No, I grant you that.

24MR DEVRIES:

With respect, I'll resist the temptation to - - -

25HIS HONOUR:

Well, no I agree with that but - - -

26MR DEVRIES:

I - - -

27HIS HONOUR:

At least,

28

Mr Johnson and his presentation of the case.

29MR DEVRIES: 30

I didn't detect any undue fatigue with

It can't be denied, Your Honour, that when we get

towards the end of the day it's fatiguing for everyone.

31HIS HONOUR:

Yes.

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280

DISCUSSION

1MR DEVRIES:

And, given that on Friday he was on his feet for

2

the whole day, having been on his feet for half a

3

day - - -

4HIS HONOUR:

Wednesday.

5MR DEVRIES:

The same the day before that – it's undeniably

6

tiring and I would be - - -

7HIS HONOUR:

Yes.

8MR DEVRIES:

- - - exhausted if I had to be still going at the

9 10

end of today.

my instructor's surprise, we will be back after lunch.

11HIS HONOUR: 12

I hope I won't be, Your Honour but much to

Yes, well I've detained you in that digression but

you started outlining the contributions - - -

13MR DEVRIES:

Yes.

14HIS HONOUR:

- - - by your client.

15

and parent.

The first one is homemaker

It's probably a useful time to break - - -

16MR DEVRIES:

If it's convenient, Your Honour.

17HIS HONOUR:

It's one o'clock, yes.

Thanks Mr Devries.

If we

18

do spill into tomorrow, would it be inconvenient if we

19

started at 10 or is that difficult for you?

20MR DEVRIES: 21

That won't be inconvenient, I just don't expect to

be going - - -

22HIS HONOUR:

No.

23MR DEVRIES:

- - - beyond today, Your Honour.

24HIS HONOUR:

No, well.

25

Thanks, we'll resume at 2.15 then,

thanks.

26LUNCHEON ADJOURNMENT 27

1.LL:CW 16/02/2009 2Cressy

FTR:2B

281

DISCUSSION