Brothel Gate Day 2 Full Day

1HIS HONOUR:

Mr Devries?

2MR DEVRIES:

May it please Your Honour, this matter, at

3

present, is still proceeding.

So, Your Honour.

4HIS HONOUR:

Yes.

5MR DEVRIES:

Your Honour, as foreshadowed last night, I sought

6

a ruling from the Ethics Committee as to whether I could

7

- or ought to continue in this matter.

8HIS HONOUR:

Yes.

9MR DEVRIES:

I also advised my client that she should seek

10

independent legal advice on the same matters with regard

11

to both my instructors and I.

12

defendant to Mr Johnson's counterclaim, she has not been

13

provided with or served with a copy of the document, or

14

otherwise provided with details of its contents, I'll

15

come back to that in a moment, Your Honour.

Although she is also a

16HIS HONOUR:

Yes.

17MR DEVRIES:

The need for me to clarify my position made it

18

impossible for me to give her copies of a document that

19

extends to well over 200 pages, if you include the

20

attachments to the documents, that he - the defence and

21

counterclaim, Your Honour, is 156 pages, and it has, I

22

think, about eight - - -

23HIS HONOUR:

This is in the other proceeding?

24MR DEVRIES:

In the other proceeding.

25HIS HONOUR:

Yes.

26MR DEVRIES:

And it may well be, Your Honour, that she needs to

27

read that document in its entirety before she makes the

28

necessary decisions.

29

be ready, Your Honour.

30MR JOHNSON: 31

Sorry, Mr Johnson doesn't appear to

Your Honour, I have a medical condition which

prevents me from being able to sit down, I would like to

1.MI:SK 03/12/08 2Cressy

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131

DISCUSSION

1

raise it as a housekeeping matter.

2HIS HONOUR:

Well, Mr Devries - - -

3MR JOHNSON:

I know, simply forgive me, Your Honour, I can't

4

sit down, I'm in too much pain.

5HIS HONOUR:

Yes, well, you may stand, if you wish to.

6MR JOHNSON:

Thank you, Your Honour.

7MR DEVRIES:

He seems to be shuffling around and preparing

8

himself, which is very distracting to me, Your Honour.

9HIS HONOUR: 10

Well, I agree with that, court starts at 10.30,

Mr Johnson.

11MR JOHNSON:

I'll explain my medical - - -

12HIS HONOUR:

And my practice - - -

13MR JOHNSON:

- - - I do apologise.

14HIS HONOUR:

My practice is to come onto court at 10.30 at the

15

appointed hour.

16MR JOHNSON: 17

I do apologise, Your Honour, and I'll explain the

circumstances - - -

18HIS HONOUR:

Yes, well, Mr Devries is outlining to me matters

19

pertaining to his condition, or his position, are you

20

able to listen attentively for that?

21MR JOHNSON:

Yes, Your Honour.

22HIS HONOUR:

Thank you, Mr Devries.

23MR DEVRIES:

In the meantime, Your Honour, I've received an

24

interim ruling from the Ethics Committee, enabling me to

25

continue to act if that is the wish of my client and my

26

instructors as best they advise.

27

a final ruling is underway, Your Honour.

28

of the conditions of the interim ruling is I had to make

29

an application for a final ruling, do that overnight,

30

that's been emailed to the Ethics Committee, and

31

obviously, if the final ruling is different to the

1.MI:SK 03/12/08 2Cressy

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132

The process of getting I had to - one

DISCUSSION

1

interim ruling, then I'll have to reconsider my position.

2

Now, the preferred option of the Ethics Committee was for

3

me to have made an application to have the counterclaim

4

struck out before I counterclaim the other matter struck

5

out before I proceeded further with this matter, but that

6

would have entailed me providing an affidavit, and -

7

which could have been done within time, but my counsel of

8

choice would not have been available til this afternoon,

9

and, of course, we would have had to have found a member

10

of this honourable court who could have - - -

11HIS HONOUR:

You'd have to make the - you'd have to make

12

appropriate application, serve it.

What, in the other

13

proceeding, you would be seeking to have the counterclaim

14

struck out.

15MR DEVRIES:

Counterclaim as against me struck out.

16HIS HONOUR:

Yes, well, that may take time, I mean that has to

17

be subject to a hearing.

18MR DEVRIES:

Yes, now, that was a preferred option, but, of

19

course, that can't be done, Your Honour.

20

Honour, I have to say that if I'd been graced with a copy

21

of the document earlier in the proceeding than I was, I

22

would have handed it up to Your Honour as part of my

23

application, or part of the submission on the question of

24

the appointment for litigation guardian.

25

decision had been made by Your Honour before I received

26

the document.

27

Honour, that this giving to me of the document happened

28

in the context where Mr Johnson had successfully got my

29

predecessors, and my instructor's predecessors, to

30

disqualify themselves from acting for my client.

31

Although I've been put on notice of its contents, I

1.MI:SK 03/12/08 2Cressy

Now, Your

However, that

Now, it has to be put on the record, Your

FTR:1

133

DISCUSSION

1

have not been properly served with the document, nor do I

2

accept service of it in a manner that it was given to me.

3

It was given to me, Your Honour, in a context when I

4

asked for a copy of the application in the other matter,

5

in order to see how that matter related to this matter.

6

I have still not been provided with a copy of the

7

application in the other matter.

8

proceeding, because it may be relevant to the relief,

9

with respect, available to Your Honour.

It is relevant to this

Also relevant,

10

Your Honour, is that whilst a number of the other

11

defendants to that counterclaim were present in court,

12

and some still are, none of them were provided with the

13

document, only I was provided with the document.

14HIS HONOUR: 15

In other words, the counterclaim hasn't been

served.

16MR DEVRIES:

No, it's not been served on me, nor - - -

17HIS HONOUR:

It's not been served on anyone?

18MR DEVRIES:

Nor or anyone else, to my knowledge.

19HIS HONOUR:

How many defendants are there to - - -

20MR DEVRIES:

Thirteen defendants, Your Honour, including the

21

Attorney General of the State of Victoria, the Minister

22

for Human Services, Dr List, and I'll come back to

23

Dr List, myself, my instructors, my clerk, Mr Hanlon, his

24

firm, I think - I'm not sure if I mentioned Federal

25

Magistrate O'Dwyer.

26

Institute of Victoria, who's not mentioned.

27

joins the Legal Services Commissioner.

28

When Mr Johnson made his application to you for

29

consolidation of that matter with this, he never told

30

you, Your Honour, that it included a defensive counter

31

claim which included myself and other people in this

1.MI:SK 03/12/08 2Cressy

FTR:1

It also seeks relief against the Law

134

It also

DISCUSSION

1

court as defendants.

He didn't alert Dr List to the fact

2

that vile accusations were made against Dr List in that

3

defence account claim before he went in the witness box.

4

Your Honour may draw, I submit appropriate inferences

5

from that.

6

Some of the relief sought by Mr Johnson in his counter

7

claim in that matter appears to overlap some of the

8

relief sought by him in this matter.

9

makes a number of allegations against me, Your Honour.

Now, the document

10

They're serious.

11

and every allegation that is made however is baseless and

12

without foundation and as I've indicated, the first

13

available opportunity, I will move to strike out the

14

counter claim against me and I suspect that most of the

15

other defence counter claim may well do the same thing.

16

It's timing, it's provision to me alone, was designed and

17

was successfully designed to distract me from doing my

18

job and to - and it was designed to prevent my client

19

from having effective representation.

20

nothing more than a tawdry attempt to nobble me as

21

counsel for the client and I'd submit that in those

22

circumstances, it may well be a contempt of this court

23

and insofar as it's provision to me and the circumstances

24

provided to me, extends the length of the hearing in this

25

court, I'll be seeking a result and costs order from

26

Mr Johnson and I'm sure my learned friend may well do the

27

same thing.

28

Now, the situation with regard to my client, Your Honour,

29

is something that concerns me very greatly.

30

hasn't seen this document yet and that's partly my fault

31

because I was concentrating on my own position first, but

1.MI:SK 03/12/08 2Cressy

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I take them very, very seriously.

135

Each

It was and is

My client

DISCUSSION

1

amongst the accusations, it makes - it goes to my

2

physical, mental and professional capacity.

3

me of being infirm - and that's the word that's used -

4

suffering from dementia, suffering from hearing loss,

5

incompetent, unethical, slippery and so on, that's one

6

category of complaints against me.

7

that I've defamed Mr Johnson in making complaints to the

8

legal services commissioner and that I am part of what he

9

calls the "Debris buried terminable conspiracy to

10

It accuses

The other category is

blackmail."

11HIS HONOUR:

Has the document been filed in court?

12MR DEVRIES:

Yes, the copy I've got is an original filed copy.

13

Now, Your Honour, the concern I have with respect is that

14

my client needs to read that document.

15

to read that document at this stage, but she needs to

16

read it.

17

to get independent legal advice as to whether she should

18

continue having myself and my instructors represent her.

19

If there is any basis to the allegations of infirmity on

20

my part, and I deny each and every one of those, but if

21

there is, that's something she needs to consider and she

22

needs to consider whether there is any basis for it.

23

doesn't wish to do that at this moment.

24

matter to continue until completion.

25

that isn't - that may not be the appropriate action for

26

her and at the very least, she needs to read this lengthy

27

scurrilous document.

28

instructor in the briefest of discussions with my learned

29

friend before the other defendants to the counter claim

30

and this matter in our opinion, certainly my opinion,

31

after discussing with them and I think they would agree

1.MI:SK 03/12/08 2Cressy

She doesn't wish

She needs to - or she should - she's been urged

FTR:1

She

She wishes this

My concern is that

I had a discussion with my

136

DISCUSSION

1

with me has every sign of not being capable of being

2

completed within the two days that was allowed for it.

3

That's absolutely impossible in my opinion.

4HIS HONOUR:

That's quite clear.

Even if the parties remain

5

relevant, I would have thought it's about a three day

6

case.

7MR DEVRIES:

But we've already lost a day. Yes, and more importantly Your Honour, I don't

8

believe with - in with the - very best of control - and

9

I'll tell you this with the greatest of respect.

Even

10

with the very greatest of control from the Bench that

11

Mr Johnson will be confined to a time limit in his own

12

evidence and in cross-examination of my client, it would

13

enable this matter to finish by Friday in any case.

14

However, Your Honour, I don't want to lose the time and

15

costs we've already spent on this matter.

16HIS HONOUR:

Well, the first question really arises, concerns

17

your own position.

18

Ethics Committee is that you, at the moment, the interim

19

ruling is that you may continue to act if that is the

20

wish of your client.

21

client ought to express that wish in an educated way?

22

other words, having had a look at the allegations made

23

against you, as to whether she - whether she still wishes

24

to continue with you acting on her behalf.

25

concern?

26MR DEVRIES: 27

Now, I understand the ruling from the

Your concern though is that your In

Is that your

It is my concern and in an educated way, meaning

also an informed but I can't inform her.

28HIS HONOUR:

No.

29MR DEVRIES:

She should get independent legal advice.

30HIS HONOUR:

It may be with the scheme that the Bar has at the

31

She'll need independent advice.

moment, they may be able to make someone available who'd

1.MI:SK 03/12/08 2Cressy

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137

DISCUSSION

1

give independent advice to her reasonably quickly on that.

2

But do you - what do you submit I should do, having drawn

3

these matters to your attention?

4

time so your client can read the document and get advice?

5MR DEVRIES:

Do you wish to have

Well, certainly she must read the document Your

6

Honour, but she's reluctant to do so and I can understand

7

why, but she must read the document and I think I can

8

make arrangements for summary from the Bar's pro bono

9

scheme to give her a little bit of time.

10HIS HONOUR:

Yes.

Your concern is that you're not going to -

11

is that you're concerned that you should not continue in

12

this matter unless and until your client's had

13

independent advice?

14MR DEVRIES:

Is that what you're putting to me?

Unless she's had - yes - opportunity to read this

15

and to give serious consideration to getting independent

16

legal advice.

17

advice, but I stress to her and have stressed to her the

18

importance of doing so because if she doesn't, she may

19

have cause to regret that in the future and that can't be

20

allowed to happen.

21

But the difficulty she has Your Honour and she's been

22

quite frank about this is if Mr Johnson succeeds in his

23

attempts to remove me and my instructors, she'd probably

24

at the end of the line of getting other representatives

25

because while she could probably force through the cab

26

rank well a member of counsel to act for her, she can't

27

force the solicitor to take on what has become an

28

extraordinary poisoned chalice.

29

this matter on or any representative who takes this on,

30

inevitably will be the subject of what we've been the

31

subject of at the hands of Mr Johnson.

1.MI:SK 03/12/08 2Cressy

I can't force her to get independent legal

FTR:1

138

Any lawyer who takes

DISCUSSION

1HIS HONOUR:

Well I hear what you put Mr Devries and I'm

2

concerned about this development but what is it that you

3

submit I should do at the moment?

4

part heard in this trial.

5MR DEVRIES: 6

At the moment we're

Your Honour at this moment I'd seek you to stand

it down for my client to read this - - -

7HIS HONOUR:

Yes.

8MR DEVRIES:

- - - and to see if I can organise some

9

independent legal advice for her.

10HIS HONOUR:

When do you anticipate you'll get a final ruling

11

from the ethics committee?

12

indication?

13MR DEVRIES:

Have they given you any

No indication whatsoever.

The email went to the

14

secretary last night.

She would have gotten it when she

15

came in this morning.

I don't know how quickly they

16

work.

17

matter.

18

that part of it because whilst the interim ruling is in

19

place, I can continue to act.

20HIS HONOUR:

They would probably consider it a fairly complex Can I say Your Honour I'm not concerned about

Well I follow that, but your concern both as a

21

matter of your own professional ethics but also it seems

22

to be indicated in the interim ruling that your client,

23

with that ruling is subject to the wishes of your client

24

and your concern is your client can't properly express

25

her wishes without having read the document and getting

26

independent advice.

27

would seem to me appropriate to stand the matter down.

28

I'll hear from Ms Sofroniou and Mr Johnson in a moment.

29

How long do we need to stand it down for?

I can understand that position.

30MR DEVRIES:

Probably a couple of hours Your Honour.

31HIS HONOUR:

Yes.

1.MI:SK 03/12/08 2Cressy

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139

It

DISCUSSION

1MR DEVRIES:

Because it's 156 pages - - -

2HIS HONOUR:

I understand that.

I must say my concern is

3

whatever's going on, we've got properties that I

4

understand are also bid to mortgages.

5

case are going to defeat the interests, not just of the

6

plaintiff but of the defendant.

Any delays in this

7MR DEVRIES:

What I'd be submitting - - -

8HIS HONOUR:

And that needs to be borne steadily in mind that

9

any disturbance of the position of the plaintiff's

10

counsel would, I would think, be detrimental to his

11

interests.

12MR DEVRIES: 13

What I was going to submit to Your Honour with

respect was - if this matter can't proceed.

14HIS HONOUR:

Yes.

15MR DEVRIES:

For whatever reason, whether we haven't got enough

16

time to finish this week or because of my client's

17

position that Your Honour make interim rulings about what

18

happens to the properties and the basis for that would be

19

Mr Johnson's application - - -

20HIS HONOUR:

Application, I hear you.

21

might be able to do that.

22

the moment?

23MR DEVRIES: 24

I hear that.

Well we

Well what do you suggest at

Stand it down for a couple of hours?

Stand it down.

Perhaps to half past 12 so we all

know where we stand before lunch Your Honour.

25HIS HONOUR:

I follow that.

26MR DEVRIES:

Lunch Your Honour.

27HIS HONOUR:

I'll hear from Mr Johnson and Ms Sofroniou.

28MR DEVRIES:

May it please Your Honour.

29MR JOHNSON:

Thank you Your Honour.

30HIS HONOUR:

I'm sorry, Mr Devries.

31

filed?

This counter claim?

1.MI:SK 03/12/08 2Cressy

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140

When was the document

When does it appear to being DISCUSSION

1

filed in the court?

2MR DEVRIES: 3

I believe it was 21 November and again why it

wasn't served before that Your Honour - - -

4HIS HONOUR:

Well I understand that.

5MR DEVRIES:

- - - is a matter that Your Honour might take into

6

account.

7HIS HONOUR:

Yes I understand that.

8MR JOHNSON:

Thank you Your Honour.

9 10

I, I'll - there's

obviously a lot of issues raised there that we need to discuss and I'll try to do so quickly.

11HIS HONOUR:

Well there's not a lot raised.

At the moment the

12

question - the application before me is that the matter

13

be stood down for a couple of hours.

14

the position of Mr Devries due to this counter claim

15

coming to his attention that I have no alternative and to

16

give the plaintiff the opportunity to obtain proper

17

independent advice about Mr Devries' position.

18MR JOHNSON:

Yes.

It would seem given

Your Honour I'm just going to request that

19

the matter be stood down at one o'clock in the afternoon

20

on medical reasons.

21HIS HONOUR:

Yes.

22MR JOHNSON:

Maybe I can address this point first.

I was - I'm

23

sitting uncomfortably in the chair, I'm not sure if you

24

noticed the cushion yesterday Your Honour and I have been

25

basically unable to lie down or sit down through most of

26

the evening.

27

GP.

I have a doctor's certificate from my local

28HIS HONOUR:

Yes, well have you shown a copy of it to - - -

29MR JOHNSON:

I haven't but I do have photocopies.

Forgive me,

30

it's painful for me to move.

31

which presently I make available to you Your Honour.

1.MI:SK 03/12/08 2Cressy

FTR:1

141

And I have an original

DISCUSSION

1HIS HONOUR:

Yes.

2MR JOHNSON:

What the - it's a doctor's certificate saying I'm

3

unfit for work today, that I have a muscular condition in

4

my lower back and I require further assessment today.

5

local GP advised me to have my back looked at in

6

casualty, but the earliest I can arrange to do that is

7

1.30 this afternoon in any case.

8

have no desire or wish for Mr Devries or his instructor

9

to step down in the current proceedings.

My

Firstly let me say I

I believe even

10

with this medical condition, which I'm hoping will be

11

resolved this afternoon I was hoping we might finish by

12

Friday of this week in the current proceeding and we'll

13

certainly be finished by Monday.

My - - -

14HIS HONOUR:

You told me yesterday to take three weeks.

15MR JOHNSON:

Yes but Your Honour the case management that we've

16

applied here is that really it's just a question of what

17

were Ms Cressy and what were my living arrangements over

18

the past decade and to what extent was there an

19

overlapping.

20HIS HONOUR:

The contributions - - -

21MR JOHNSON:

And a question of applications and source of

22

moneys and a tying those to properties.

23HIS HONOUR:

Well I agree if we - - -

24MR JOHNSON:

That could be done very quickly Your Honour.

25HIS HONOUR:

All right well - - -

26MR JOHNSON:

Your Honour if we were to lose this afternoon and

27

stay all of tomorrow morning I'm 99 per cent confident we

28

would finish comfortably before close of court hours on

29

Monday afternoon.

30HIS HONOUR:

So this was a muscular condition is it?

31MR JOHNSON:

Yes he's not - because of my tenderness my doctor

1.MI:SK 03/12/08 2Cressy

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142

DISCUSSION

1

wasn't able to examine me properly.

2HIS HONOUR: 3

5

Medication condition?

It's muscular - it is hard to read his

It looks more like a - that's why I asked.

It

looks more like medication to me.

8MR JOHNSON: 9

No, no.

It doesn't

reading isn't it?

6HIS HONOUR: 7

Is this muscular or something else?

look to me like muscular at all.

4MR JOHNSON:

I put - - -

He did have a waiting room of people even at eight

o'clock this morning.

10HIS HONOUR:

Which doctor did you see?

11MR JOHNSON:

Dr Caskasubo.

I'm certainly not on any medication

12

Your Honour.

I'm just concerned that it may be a tissue

13

problem, not a spinal problem, as I originally thought it

14

was.

15

paperwork over in my briefcase (indistinct) yesterday.

16

So, Your Honour, I think that even if we did stand the

17

matter down for all of this afternoon and even all

18

tomorrow morning, we should still finish

19

comfortably - - -

I thought I'd wrenched my back lugging all the

20HIS HONOUR:

I won't be standing it down for tomorrow morning.

21MR JOHNSON:

OK, Your Honour.

22HIS HONOUR:

Most I'd do is stand it down this afternoon and

23

see how you went then.

24MR JOHNSON:

Thank you, Your Honour.

25HIS HONOUR:

I'll stand the matter down to 2.15, I'll hear from

26

Ms Sofroniou, but I will not stand it down beyond then.

27

In the meantime, you rest your condition.

28MR JOHNSON: 29

I have to go to casualty hospital, which I can't

do til 1.30, Your Honour.

I won't be - - -

30HIS HONOUR:

Which hospital are you intending?

31MR JOHNSON:

St Vincent's.

1.MI:SK 03/12/08 2Cressy

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143

DISCUSSION

1HIS HONOUR: 2

Well, can't you attend there sooner than that?

You could go there now?

3MR JOHNSON: 4

I need some assistance, because I can't get into a

vehicle, I can't get into a sitting position.

5HIS HONOUR:

How did you get to court?

6MR JOHNSON:

I walked very slowly, Your Honour.

7HIS HONOUR:

Yes, well - - -

8MR JOHNSON:

I apologise for my lateness.

9HIS HONOUR:

I'm sure you'll be able to get to St Vincent's,

10

which is not very far away.

11MS SOFRONIOU:

Ms Sofroniou?

As a fellow sufferer, Your Honour, I can say

12

that the 96 tram that one stands in is a very convenient

13

way of travelling, because I've had to do it myself, and

14

the benefit is you can stand up, and the 96 goes outside

15

St Vincent's, so that might be of some assistance by Your

16

Honour.

17

we're in the court's hands.

18

my friend.

19

of all of these parties.

20HIS HONOUR:

As to the matters Your Honour raises, of course, I understand the position of

We're unclear as to the timing of the joinder

Yes.

21MS SOFRONIOU:

One suggestion, I certainly wouldn't assume that

22

the court could enforce this, is I don't understand why

23

the parties that potentially can act as a nobble, as my

24

learned friend has put it, even if it's not intended that

25

way, why they're joined now?

26

been heard, nothing's - it hasn't been served, if my

27

friend chose to discontinue or withdraw the claim,

28

insofar as it related to my friends, they would be

29

permitted to - - -

30HIS HONOUR:

The other matter hasn't

Which friend are you talking about?

31MS SOFRONIOU: 1.MI:SK 03/12/08 2Cressy

My learned friend, Mr Devries, and his FTR:1

144

DISCUSSION

1

instructing solicitor.

2HIS HONOUR: 3

So - but if the defendant discontinued those

claims against him, is that what you're putting?

4MS SOFRONIOU: 5

Yes, that would mean that no ruling were

required.

6HIS HONOUR:

I agree.

7MS SOFRONIOU:

It would be done reserving his rights, if it

8

became appropriate, to make any pleading he's entitled

9

to.

10

It would mean that any sense that there was some

intimidation or nobbling going on would disappear.

11HIS HONOUR:

Yes.

12MS SOFRONIOU: 13HIS HONOUR:

And that may be - - -

14

That would resolve the issue, we could hear the

case subject to Mr Johnson getting medical treatment.

15MS SOFRONIOU:

And Mr Johnson himself would be free of the -

16

what he would say unfair suggestion that he's trying to

17

intimidate, because it would go away.

18HIS HONOUR:

Yes, I hear what you say, Ms Sofroniou.

The

19

matter's in your hands, Mr Johnson, as to what you do

20

with this counterclaim that you have filed in the court.

21

One thing that will occur is that I remain seized to this

22

matter, and this case will be heard.

23

this case will be heard come what may, that's the first

24

thing.

25

steadily in mind is that any delay in this case, on my

26

reading, purely of the pleadings, is causing you more

27

harm than anyone else.

So whatever occurs,

The second thing I think you need to bear very

28MR JOHNSON:

Yes, sir.

29HIS HONOUR:

Now, it seems to me it's in - it's as much your

30

interest as anyone else that this case gets heard and

31

determined quickly.

1.MI:SK 03/12/08 2Cressy

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145

DISCUSSION

1MR JOHNSON:

Yes.

2HIS HONOUR:

You need to focus steadily on that.

Anything that

3

disturbs the ability of the plaintiff's practitioners to

4

act on her behalf, I strongly suspect, will simply cause

5

you difficulty.

6

here unrepresented, and it behoves me to say that to you.

Now, that's a matter for you, but you're

7MR JOHNSON:

Excuse me, Your Honour.

8HIS HONOUR:

What is the nature of this condition?

9

Are you on

medication at the moment?

10MR JOHNSON:

No, no, no medication, Your Honour.

It's - I

11

thought I'd wrenched my spine with all the paper weight

12

in this case yesterday, but it turns out it may be

13

muscular or tissue.

14

me properly, he said, "You need to get off to St

15

Vincent's quick smart", which is what I'm organising.

16

Your Honour, may I just clarify, the - in the new

17

proceedings, I have - sorry, I have served the defence

18

and counterclaim, but only on the plaintiff in those

19

proceedings.

20

I did that this morning, I felt that I was - nobbled is

21

not really the prettiest word to use, but I did feel that

22

the orders that Mr Justice Cavanough made on 20 June,

23

while they were extant, prohibited me from taking a step

24

in this level of communication with my mortgagee.

25

also fortified by - I'm fortified by the interim ruling

26

that Mr Devries has got from the ethics section of the

27

Bar counsel, if I've described that correct, and also by

28

his statement to Justice Cavanough on 20 June that - - -

29HIS HONOUR:

My local GP wasn't able to examine

I was

All right, well, what I'm going to do, because

30

time is getting away, I'm going to stand the matter down

31

to 2.15.

1.MI:SK 03/12/08 2Cressy

You can seek what treatment you need. FTR:1

146

DISCUSSION

1

Mr Devries, you can try and obtained some independent

2

advice for your client, I'm not going to lose the day,

3

this court simply can't afford that, we have a lot of

4

urgent cases on our hands, a lot of deserving cases on

5

our hands, and we can't afford to have judges sitting

6

idly.

7MR DEVRIES:

I will adjourn the matter til 2.15. Just before we do, sir, can I just raise two very

8

quick matters?

One is I reiterate my request for

9

Mr Johnson to provide me with a copy of the originating

10

process in that other matter, which I still haven't got.

11HIS HONOUR:

So that's the written statement of claim?

12MR DEVRIES:

Written statement of claim or originating motion,

13

I'm not sure how it's started, and secondly, Your Honour,

14

I thank my learned friend for her suggestion as a way

15

out.

16HIS HONOUR:

Yes.

17MR DEVRIES:

It - if - unless Mr Johnson was to withdraw

18

permanently, the threat would still be hanging over my

19

head, and the problem would still be there.

20HIS HONOUR:

I follow that, and I can do nothing about that.

21MR DEVRIES:

Yes.

22HIS HONOUR:

Other than to request Mr Johnson to provide to

23

Mr Devries a copy of the writ and the statement of claim

24

in the other proceeding.

25MR JOHNSON: 26

I shall do so as expeditiously as I'm able, Your

Honour.

27HIS HONOUR:

Yes.

The matter, I think, was before Master Daly

28

the other day.

29

the court file's still with her associate, I do not know,

30

but if you need access to the court file post haste, I

31

could ask my associate to try and find it.

1.MI:SK 03/12/08 2Cressy

Now, whether the matters were - whether

FTR:1

147

DISCUSSION

1MR DEVRIES: 2

I think it would be easier for your associate to

locate it than my instructors.

3HIS HONOUR:

I think that might be right, we'll see what we can

4

do.

5

I would require persuasion, if provided, that Mr Devries'

6

position is acceptable to his client, I'd require very

7

strong persuasion not to proceed at that time, come what

8

may.

9

there's anything else I can do, I'll stand it down til

10

Otherwise I will stand the matter down til 2.15, and

It's time this case was heard.

I don't think

2.15.

11LUNCHEON ADJOURNMENT 12

1.MI:SK 03/12/08 2Cressy

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148

DISCUSSION

1

(Kaye J)

2UPON RESUMING AT 2.40 P.M.: 3HIS HONOUR:

I note that Mr Johnson still is not here, he has

4

been in contact with my tipstaff, he told him earlier

5

he'd be here at 2.35, then told him he'd be here at 2.40.

6

Mr Richards will have a look.

7MR DEVRIES:

Perhaps, Your Honour, we could deal with some

8

housekeeping matters, if he's not here for the next

9

couple of minutes.

10HIS HONOUR: 11

that heading.

12MR DEVRIES: 13

I'm loath to do it, I'm not sure if it falls under

The - if I can raise the matter now, Your Honour,

and if - - -

14HIS HONOUR:

Yes.

15MR DEVRIES:

- - - if Your Honour feels, with respect, if Your

16

Honour feels that that's a matter that needs to be sorted

17

out later, it's - what happens if this matter's not

18

completed by the end of this week, as to what Your

19

Honour's going to do on Monday.

20

learned friend has difficulties with other days, but my

21

personal problem is that I have to notify somebody this

22

evening.

The reason - sorry, my

23HIS HONOUR:

I follow.

24MR DEVRIES:

As to what - - -

25HIS HONOUR:

I would have to be in touch with the listing

26

master to find out, the plaintiff in the matter that was

27

to come in on Monday passed away yesterday.

28MR DEVRIES:

Oh dear.

29HIS HONOUR:

But there is another one, I understand, may be

30

coming on.

31

that will have to be accorded priority, but otherwise, I

1.MI:SK 03/12/08 2Cressy

We're dealing with a number of these, so that

FTR:5

149

DISCUSSION

1

would expect to keep going in this case.

2

better discuss this matter in front of Mr Johnson.

3

other matter, I should say, for the - for the information

4

of counsel, I will be commencing tomorrow at ten, if you

5

can all cope with that, and rising at 3.30, because I

6

wish to attend the funeral of the late Mr Hume, Queens'

7

Counsel.

8

arrangement holding you from court til 10.30 tomorrow, do

9

you, Mr - - -

10MR DEVRIES: 11

But perhaps we The

Are you able to - you don't have a binding

No, certainly not, Your Honour, I'm used to early

starts.

12HIS HONOUR:

Yes.

13MR DEVRIES:

Have never been used to early finishes, though,

14

Your Honour.

15HIS HONOUR:

Neither me.

16MR DEVRIES:

The other matter of housekeeping nature, and it'll

17

- I presume it'll go on transcript, I've got the spelling

18

of Mr Laitey's name wrong, it's L-a-i-t-e-y, I apologise

19

for that.

20

documents last night which said something different.

I've got that wrong, I looked at some court

21HIS HONOUR:

All right, I don't think it matters a lot anyway.

22MR DEVRIES:

I apologise again, Your Honour.

23HIS HONOUR:

It doesn't - I don't think it's too great a

24

concern.

25

mesothelioma cases coming through, that the intention

26

would be I'd try to complete this case, but equally, by

27

Monday, this case would have well exceeded the limit

28

given to the listing master by the practitioners, as a

29

matter of - - -

30MR DEVRIES: 31

I would think, subject to any of these

- - - exceeded that by this evening, I believe,

Your Honour.

1.MI:SK 03/12/08 2Cressy

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150

DISCUSSION

1HIS HONOUR:

I'm sorry?

2MR DEVRIES:

I think it would exceeded - - -

3HIS HONOUR:

Well, I follow that, but there's been some

4

unforeseen delays, and I'd allow time on for that.

5MR DEVRIES:

M'mm.

6HIS HONOUR:

Well, I'm loath to recommence without Mr Johnson

7

being here, I am concerned about it now being half an

8

hour later than the time I appointed the court to resume.

9

Mr Richards has volunteered to contact Mr Johnson, he has

10

his number.

11

stand down for a

12

moment - - -

13MR DEVRIES:

I think the better for me to do is I'll

Just before we do, there's another housekeeping

14

matter that my learned friend wishes to raise, which,

15

again - - -

16MS SOFRONIOU:

It will cause no embarrassment, Your Honour, and

17

that is just that the transcript, which Your Honour is

18

also receiving, inadvertently refers to myself as acting

19

on behalf of the 2nd and 3rd defendants, instead of, as

20

is the case, 2nd and 3rd defendants by counterclaim.

21HIS HONOUR:

By counterclaim, yes.

22MS SOFRONIOU:

I, with the leave of my friend, brought that to

23

the attention of the office, but I want to do it through

24

the court and the appropriate - - -

25HIS HONOUR:

Thanks, well, that can be recorded at the -

26

Ms Sofroniou appears on behalf of the 2nd and 3rd

27

defendants to the counterclaim.

28MS SOFRONIOU: 29HIS HONOUR:

Thank you, Your Honour. Thanks, Ms Sofroniou.

Mr Johnson, in your absence

30

the only matters raised were what might happen to this

31

case if it hasn't finished by Friday, and I have informed

1.MI:SK 03/12/08 2Cressy

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151

DISCUSSION

1

counsel it will be a matter for the listing master, and that

2

may depend on whether there are any more sick plaintiffs

3

waiting for their cases to be heard as a matter of

4

urgency.

5MR DEVRIES:

Now, Mr Devries, what's your position?

My client received - sorry, had the opportunity to

6

read the counterclaim and defence in the other matter,

7

the Bar provided her with independent legal advice from

8

another member of counsel, that member of counsel advised

9

me that he had spoken with my client, had given her

10

advice, obviously he hasn't discussed with me what that

11

advice is.

12HIS HONOUR:

M'mm.

13MR DEVRIES:

And that he was - he believed she understood the

14

advice.

Following that, my client has informed me that

15

she wishes me to - and my instructors to continue in this

16

matter.

17

that her mother is now available to give evidence, and

18

I'll be calling her mother as well, so where I have

19

informed Your Honour that I only had one witness

20

yesterday.

She also advised me at that time, Your Honour,

21HIS HONOUR:

Yes?

22MR DEVRIES:

I now have two witnesses.

23

that - - -

24HIS HONOUR: 25

Another matter

Now, an order has been made for witnesses to be

out of court, so if you could advise the - - -

26MR DEVRIES:

I'll be asked her to leave as soon as - - -

27HIS HONOUR:

Yes.

28MR DEVRIES:

The next matter, Your Honour, now that Mr Johnson

29

is here.

30

amend the statement of claim - I got distracted yesterday

31

from - turn your mind to that and one other matter which

1.MI:SK 03/12/08 2Cressy

If I can foreshadow that I will be seeking to

FTR:5

152

DISCUSSION

1

I'll raise in a second.

2

formulate that but I'll provide that to all the parties

3

then Your Honour and I will - I make formal application

4

tomorrow.

5HIS HONOUR:

I haven't had the opportunity to

That's just by way of foreshadowing (indistinct)

6

the nature of the amendments that you intend to seek

7

about (indistinct).

8MR DEVRIES: 9

properties by their address to the list of properties.

10HIS HONOUR: 11

Just to add two other - I think it's two other

It's the Torquay property - property and the

Caulfield East Property.

12MR DEVRIES:

That's correct, Your Honour.

13HIS HONOUR:

Well, you will need to make that application

14

promptly and I will then hear from Mr Johnson as to what

15

he has to say about it.

16MR DEVRIES:

Your Honour, I - intended to make it first thing

17

tomorrow when I would have the - the full amendment

18

written out - - -

19HIS HONOUR:

Well, in the meantime once you've made that - once

20

you have drafted the amendment, you'll need to send a

21

copy of it to Mr Johnson so he has time to have a look at

22

it, before coming to court tomorrow.

23

be faxed or emailed to him or whatever.

24MR DEVRIES:

So it will need to

We have had great difficulty right through this

25

matter getting an email or fax across to which Mr Johnson

26

can respond quickly.

27HIS HONOUR:

Yes, well, I will ask Mr Johnson in a moment.

28MR DEVRIES:

And the other thing I was distracted from doing

29

Your Honour was to ensure that Your Honour had a copy of

30

- I have to say this - what purports to be a court book

31

in this matter.

1.MI:SK 03/12/08 2Cressy

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153

DISCUSSION

1HIS HONOUR: 2

I had one from the second and third defendants to

counter claim.

3MR DEVRIES:

I - I have - - -

4HIS HONOUR:

That doesn't matter, I'm not a great fun of court

5

books.

6MR DEVRIES:

I must say Your Honour I'm very relieved to hear

7

that because whilst this has the pleadings and the

8

previous orders made in this court, it doesn't have

9

anything else.

10HIS HONOUR: 11

you.

Well, that would be of assistance, yes.

Thank

Now - - -

12MR DEVRIES:

I apologise for not providing you - - -

13HIS HONOUR:

Are you otherwise ready to proceed with the case?

14MR DEVRIES:

I am Your Honour.

If - just if I can get back to

15

the Monday date, would it be possible Your Honour for

16

myself or my instructors to make enquiries of Your

17

Honour's associate after the court rises to see if

18

there's any firmer idea of what might happen on Monday.

19HIS HONOUR:

Yes.

I'll have to make contact with the Listing

20

Master first and she's not always easy to get a hold of,

21

but you can certainly contact my associate to find out

22

what'll be happening on Monday.

23

Mr Johnson, in your absence, I also announce I will be

24

sitting at ten o'clock tomorrow.

25

rising at 3.30 in the afternoon, we'll adjust court hours

26

because I need to attend a funeral tomorrow afternoon.

27

Are you right to proceed now?

28MR JOHNSON: 29

I thank Your Honour and my

condolences.

30HIS HONOUR: 31

Yes, I am Your Honour.

Not 10.30 and I will be

Well, it was to - a great member of the Victorian

Bar.

1.MI:SK 03/12/08 2Cressy

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154

DISCUSSION

1MR JOHNSON:

I'm aware of who the person was, yes.

2HIS HONOUR:

The other matter is have you got an email address

3

or facsimile address to which the proposed amendments can

4

be sent this evening so you have time to look at them?

5MR JOHNSON:

I do have, but I have been unable to access it for

6

the last 48 hours, hence my concern.

7

to the brink of bankruptcy Your Honour as you can see

8

from the fact that my net equity and my properties 12

9

months ago was about half a million and now apparently

10

it's down to under $70,000.

11HIS HONOUR: 12

Well, it's a simple question as to whether there's

somewhere we can send you the - - -

13MR JOHNSON: 14

I have been pushed

I had - sir - I have neither email or fax which I

can rely on.

15HIS HONOUR:

Well, then you'll need to make arrangements with

16

Mr Devries to be able to collect from his chambers

17

tomorrow morning a copy of the - or from his solicitors,

18

a copy of the proposed amendment, when would that be

19

available Mr Devries?

20MR DEVRIES: 21

It'll be available from any time after 6 p.m.

today Your Honour.

22HIS HONOUR:

And possibly even 5 p.m.

Well, I would expect then that arrangements can be

23

made between yourself and Mr Devries' solicitor and/ or

24

Mr Devries to collect it then so you'll have an

25

opportunity to see it this evening.

26

with - - -

27MR JOHNSON:

Now, we'll continue

Sorry, Your Honour, may I express my objection in

28

this matter that the plaintiff is allowed firstly to make

29

that application so late yesterday regarding the - - -

30HIS HONOUR:

I cannot - - -

31MR JOHNSON:

- - - and now to amend pleadings Your Honour.

1.MI:SK 03/12/08 2Cressy

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155

How

DISCUSSION

1

can that be?

2HIS HONOUR:

I'm not allowing them to amend their pleadings.

3

They have foreshadowed an application to be permitted to

4

amend the pleadings and I will hear that application once

5

the draft amendment is to hand.

6

application till he's drafted the amendments.

7

Mr Devries will need to get leave from me and I'll hear

8

you on that application.

9

making an application to do that.

10MR JOHNSON: 11

I cannot hear the And

I cannot pre-emptively stop him

I had understood that the time for amending

pleadings closed some weeks before the trial date.

12HIS HONOUR:

You misunderstood, because the law in fact is that

13

a party can amend their pleadings at any stage indeed up

14

till judgment provided that occurs without injustice to

15

the other side.

16

it is made.

I will hear you on any application when

We will now resume with the evidence.

17MR JOHNSON:

Thank you, Your Honour.

18HIS HONOUR:

Mr Devries, your client is giving evidence.

19MR DEVRIES:

Just one matter arising out of what - with

20

respect, what Mr Johnson has just said.

21

question of bankruptcy Your Honour.

22HIS HONOUR: 23

He's raised the

Mr Devries, if we're going to keep having

discussions, we're not going to get onto this case.

24MR DEVRIES:

But with respect Your Honour if - Mr Johnson says

25

from time to time including in a sworn documents before

26

this court that he's filed for bankruptcy or he's going

27

to file for bankruptcy.

28

Honour, with respect this matter cannot proceed further.

29

And he keeps raising the prospect that he's bankrupt or

30

he's going to go bankrupt and I just raise the question

31

The moment he does that, Your

that if that is what's happened and as of yesterday,

1.MI:SK 03/12/08 2Cressy

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156

DISCUSSION

1

according to the searches, he hadn't done that but he has

2

said on affidavit that he has filed and then that he

3

intends to file - - -

4HIS HONOUR:

Mr Devries, what do you want me to do about it.

5MR DEVRIES:

Well, he's raised - - -

6HIS HONOUR:

I cannot do anything about it other than hear this

7

case.

Now, if the parties don't wish me to hear the

8

case, there are other cases of great importance I can

9

hear.

10

unless you have an application to me.

11MR DEVRIES: 12

I'll press on, Your Honour, but the concern I have

is the moment he's bankrupt - - -

13MR JOHNSON: 14

Now, please, can we proceed to the evidence,

Your Honour, I have no intention of formal filing

for bankruptcy within the next seven days, Your Honour.

15HIS HONOUR:

Yes.

16MR JOHNSON:

Penniless perhaps, would be a more apt word.

17

Excuse me for not making that clear.

18MR DEVRIES:

If my client can return to the - - -

19HIS HONOUR:

Yes.

20

I think that's the best cause if we try and

get this case heard and completed.

21
When we finished yesterday we were - I was asking

23

you some questions about 166 Queen Street, Altona and you

24

had got as far as telling His Honour about the activities

25

that you undertook to clean walls and ceilings?---Yes.

26And you had mentioned removing carpets and flooring? 27

---M'mm.

28Did you do anything else to improve, maintain or fix up that 29

property?---Yes I had the existing kitchen removed and a

30

brand new kitchen installed, the expense to myself.

31So how much was that expense to you?---On estimate about 30, 1.MI:SK 03/12/08 2Cressy

FTR:5

157

DISCUSSION

1

30,000 for those - for that installation.

2Who paid for that?---I did. 3How did you pay for it? 4

Cheque or cash?---Cash.

Not all at

once.

5Who did you pay it to?---Sorry? 6Who did you pay it to?---Prestige Kitchens in Williamstown, I 7

think that's the right name.

8

electrician - - -

There was also the

9Sorry could I just take you back to the kitchen for a moment? 10

Who liaised with the installers to get the installation

11

and replacing the kitchen?---I did that.

12

(indistinct) the electrical appliances myself and the

13

local electrical store down in Hoppers Crossing.

14

Purchasing the new oven and range hood.

15

there was a plumbing centre, I've forgotten the name of

16

it that I purchased a designer sink from and tapware.

17

did all of that.

18

install the dishwasher.

I also saw

I went to -

I

I paid for the plumber to come out and

19Anything else done in respect to the kitchen?---No that was 20

approximately it, yes.

21And you were moving on I think to talk about other things? 22

---Yes all of the electrical - basically all the existing

23

lights in the house were really old and outdated so they

24

were removed.

25

entire house, new power - - -

New lights were put in throughout the

26Who put the new lights in?---An electrician that I hired. 27Who paid for that electrician?---I did. 28How did you pay that electrician?---Cash. 29And you then moved on to talk about other items?---Well there 30

was curtains, curtain fittings.

31

curtains, it was quite difficult.

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158

I removed all the old It was hard wood.

It

DISCUSSION

1

was quite difficult to get all the stuff out but I

2

physically did that myself.

3

new curtain rails, all that sort of stuff.

Installed the new curtains,

4Who purchased the curtains and the rails - - - ?---I did. 5- - - and the other bits and pieces?---I did. 6Now you mentioned something about lights and power points? 7

---Yes that was included in the electrical work.

8

Frank Debrinkat was his name, the electrician.

9I'm not sure whether I asked this question yesterday but in 10

whose name was the property purchased?---In Mr Johnson's

11

name.

12You mentioned that there was a mortgage taken out to purchase 13

that.

In whose name was the mortgage?---That was also in

14

Mr Johnson's name.

15And why was that?

In both cases?---Primarily as a tax

16

effective way for both negative gearing, also because I

17

wouldn't have been able to access a loan of those funds

18

on my income.

19

side of things like that.

Yes basically he handled the financial

20Did you have a bank account at the time that you occupied Queen 21

Street, Altona?---Yes I had a number.

22Sorry?---Yes I had a number of bank accounts. 23What happened to the documents in respect to that bank 24

account?---They were all stolen while the children and I

25

were on a ski holiday one weekend.

26Who stole those?---I - - 27HIS HONOUR:

Well just a moment.

28MR JOHNSON:

Objection Your Honour.

29MR DEVRIES:

Yes I withdraw - - -

30MR JOHNSON:

This is extraordinary, this is (indistinct)

31

allegations (indistinct) sir.

1.MI:SK 03/12/08 2Cressy

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159

DISCUSSION

1MR DEVRIES:

I'll withdraw the question Your Honour.

2HIS HONOUR:

The question is inadmissible anyway unless the

3

witness can say from direct evidence as to how they were

4

lost.

5MR DEVRIES:

I was going to do that Your Honour, that's why

6

I've withdrawn the question with respect.

7

Where were the documents?---The documents were kept in my

8

room.

9

There were also personal items like glamour photos

10

(To witness)

I had a system of filing on a shelf in my room.

stolen, but all of my files were stolen that weekend.

11What address were you at - sorry what address were the 12

documents and the glamour photo at the time they were

13

stolen?---At 166 Queen Street.

14Who had keys to those premises apart from yourself?---Only 15

James and Mr Johnson.

16HIS HONOUR:

When did the documents go missing?

What time

17

frame would that have been?---It would have been in

18

August, approximately August 07.

19MR DEVRIES:

Were there any signs of breaking of any locks,

20

windows or anything else to get access to the premises?

21

---Yes there was.

22

one of the front bedrooms where a window had been popped

23

open.

24

size to keep it shut and the children had removed that so

25

it was quite easy just to give a little push to pop the

26

window open and for someone to climb in.

There were signs of forced entry on

You needed a special piece of wood, the correct

27Was anything, apart from your personal documents and your 28

personal photographs, is there anything else taken from

29

your premises?---No, all of the electrical equipment in

30

the house, our plasma television was still there, all of

31

my gold jewellery was still there, a stereo system was

1.MI:SK 03/12/08 2Cressy

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DISCUSSION

1

still there, I had a bit of cash hidden away, that was

2

still there.

3Can you tell His Honour what the documents were taken comprised 4

- now, I don't mean you to go through every document, but

5

if you can give us categories of documents?---OK.

6That disappear?---All right, I had income tax returns, various 7

financial institution documents, bank statements,

8

insurance documents, I had three years of work diaries,

9

accounting documents stolen, children's birth

10

certificates were stolen, but all of my files were gone,

11

taken, everything, gone.

12Now, can I just ask you about these work diaries, what years 13

sorry, did that cover calendar years or financial years?

14

---Calendar years, yes.

15And which - sorry, which calendar years did they - - -?---I had 16

2005 and 2007.

Well, I was only a little way through

17

2007 when the diary was stolen, but yes.

18So 2005?---Two thousand and six, 2007. 19Sorry, I didn't hear you say 2006, and what - you said they 20

were your work diaries, what did they - what did they

21

have in them, what information?---I guess the best way to

22

describe it was like accounts receivable.

23M'mm?---Money coming in, money going out, expenditure, income 24

and expenditure, basically.

25Have any of those documents ever come to light?---No, nothing's 26

resurfaced.

27Has anyone ever said to you that they have taken those 28

documents?---No one has outright admitted the theft of

29

the documents, no.

30Unit 9, 2 Gibson Street, Caulfield?---Yes. 31Do you know which property I'm referring to?---Yes, that's 1.MI:SK 03/12/08 2Cressy

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DISCUSSION

1

student accommodation.

2Can you recall when that was purchased?---Maybe a year after we 3

were in Point Cook, that was more specific than that.

4Who purchased that property?---James did. 5And did you have a caveat placed on that property, on the top 6

of that property?---Yes, initially, yes, I did.

7Yes, did you receive any request to remove that caveat? 8

---Yes, I did, through my then lawyers, Harwood Andrews.

9

I received a request saying that it was to be sold, the

10

caveat needed to be released, or he was going to lose

11

money.

12Sorry, who was the request from?---That was from Mr Johnson.

I

13

think it said something to do with settlement was dutiful

14

and - - -

15Could you have a look at this letter?

This is a letter dated,

16

first of all, 26 October, and that was crossed out, 2007

17

crossed out and made 29 October.

18

the letter that you're referring to?

19

---Yes, it is.

Is that a true copy of

20And about halfway down on the front page, there's a reference 21

to the property being under contract of sale and

22

settling, have you - can you see that reference?

23

---Where it says Gibson Street is under contract and is

24

past you?

25Yes?---Yes. 26Could you read out that, those two sentences?---"Settlement 27

will proceed within three business days of withdrawal of

28

caveat by your client.

29

before Wednesday 7 November 2007, or I will suffer

30

further and substantial ongoing losses and damages".

Settlement must occur on or

31And as a result of receiving that letter, what instructions did 1.MI:SK 03/12/08 2Cressy

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DISCUSSION

1

you give your then solicitors with respect to the

2

caveat?---I instructed them to release it.

3I tender that letter, or that copy letter, if Your Honour 4

pleases.

5MR JOHNSON:

May I have a copy, please, Your Honour?

6HIS HONOUR:

You may have a look at it.

I'll just have it

7

marked as an exhibit, then you can have a look at the

8

document.

9

Hanlon, Harwood Andrews Pty Ltd, dated 29 October 2007,

The copy letter from the defendant to Mr David

10 will be Exhibit A. 11 12#EXHIBIT A Copy letter from defendant to David 13 Hanlon at Harwood Andrews Pty Ltd dated 14 29/10/07. 15MR LANGMEAD:

Your Honour, there are a large number of

16

attachments referred to that should be properly included

17

with the exhibit - - -

18HIS HONOUR: 19

Well, you can cross-examine on that basis, I'll

receive the letter as it is.

20MR JOHNSON:

Thank you.

21HIS HONOUR:

You can tender them when your turn comes.

22MR JOHNSON:

Thank you, Your Honour.

23HIS HONOUR:

Could you return the letter now, thank you, we'll

24

have it marked as an exhibit.

25MR JOHNSON:

Thank you, Mr Devries.

26MR DEVRIES:

What - was the property sold after you instructed

27

Mr Hanlon to have the caveat removed?---No, the property

28

was not sold, the property, to the best of my knowledge,

29

was we financed all - funds were drawn from it, in the

30

figure of about $100,000, to the best of my knowledge, no

31

sale went through whatsoever.

32Did you get any benefit from that money that was refinanced on 33

that property?---No, there was no division.

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DISCUSSION

1HIS HONOUR: 2

Do you know how much the original purchase price

of that unit was?---No, I can't be certain on that.

3Can you - an approximation?---Well, I think it was under 500, 4

so I'm guessing - there was some - there's a little bit

5

of confusion, because the mortgage broker who set the

6

deal up had some sort of tax effective way of giving

7

James cash after the purchaser.

8

deal.

It was a very convoluted

9Well, if you don't know the purchase price, I won't ask you to 10

guess.

11MR DEVRIES:

Mr Devries? May it please Your Honour.

Did you have any

12

involvement in the process of purchasing that property?

13

---No, no.

14Did you do any work on that property once it was purchased? 15

---No, I didn't.

16Did you have any involvement in the leasing out or tenanting or 17

anything like that of that property after it was

18

purchased?---Not directly, other than discussions with

19

James about what we should do with that as an investment

20

opportunity.

21What was the thrust of those discussions?---Just to hold onto 22

it for another number of years, and then possibly sell it

23

off.

24Do you know which financial institution had the mortgage over 25

the property?---There have been so many financial

26

institutions, I'm sorry, I could say which goes to which.

27Now, 7A Endeavour Drive, Torquay, do you know which property 28

I'm referring to?---Yes, I do.

29What sort of property is that?---It's a townhouse that's surf 30

side location, rather new, I think it was purchased for

31

$399,000.

1.MI:SK 03/12/08 2Cressy

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DISCUSSION

1

Caulfield, part of those proceeds were applied to the

2

purchase of that property.

3Did you have any role in the purchase of that property? 4

---No, that purchase - sorry, that property was purchased

5

after we separated, but with funds from the Gibson Street

6

property.

7Do you know whose in occupation of that property at the 8

moment?---I believe Mr Johnson is residing there at the

9

moment, that's the address that he's giving.

I'm sorry,

10

you asked me before who had the mortgage for Caulfield,

11

and it's the Commonwealth Bank, because that's linked to

12

the Torquay property as well.

13Could you have a look at this document and tell His Honour 14

whether you recognise that document?

It's a letter from

15

the Commonwealth Bank Group, Your Honour?---Thank you.

16

Yes, I've seen this letter.

17Who's it addressed to?---Well, this copy was addressed to Berry 18

Family Law from the Commonwealth Bank.

19Who are Berry Family Law?---They're my solicitors. 20And what is the - the first page attaches a copy of another 21

document, is that correct?---Yes, it does.

22What is that document?---The second document is a notice to the 23

mortgagor, s.76(1) Transfer of Land Act 1958 to a Harold

24

James Johnson of 7A Endeavour Drive.

25I tender those - or those two documents, Your Honour. 26MR JOHNSON: 27

before, Your Honour.

28HIS HONOUR: 29

I'll mark them as an exhibit, then you can have a

look.

30MR JOHNSON: 31

May I see them, because I've never seen them

This is extraordinary, Your Honour, may I have a

copy, please, I've not seen this correspondence.

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DISCUSSION

1HIS HONOUR: 2

a copy made in a moment.

3MR JOHNSON: 4

Yes, I'll mark it as an exhibit, and you can have

Thank you, Your Honour.

Forgive me for not

standing, I still have some back trouble.

5MR DEVRIES:

Your Honour, I will - - -

6HIS HONOUR:

Mr - - -

7MR DEVRIES:

Sorry, I'll photocopy the previous exhibit in that

8

document and provide them to Mr Johnson for the same time

9

as the amended - proposed amendments to the statement of

10

claim.

11HIS HONOUR: Thank you. 12 13#EXHIBIT B Letter from Commonwealth Bank to Berry 14 Family Law dated 12/11/08 together with 15 attached notice to mortgagor, s.76(1) 16 Transfer of Land Act 1958. 17MR DEVRIES:

Now you've been involved in Federal Magistrates'

18

Court proceedings with Mr Johnson as well is that

19

correct?---That's true, for quite some time.

20And who is the applicant in those proceedings?

Can you

21

recall?---James - I'm sorry, Mr Johnson is the applicant

22

in those proceedings.

23And who were the respondents?---There was myself, there's the 24

1st respondent and my son's father, Matthew John Laity as

25

the 2nd respondent.

26I'm going to ask you to look at a document which is the sealed 27

copies of orders made in the Federal Magistrates' Court

28

of Australia on 26 September 2007 (indistinct) interim

29

orders.

30MR JOHNSON: 31

relevance?

32HIS HONOUR: 33

Your Honour may I just at this point question That's - - -

Yes I haven't seen the orders but the same

question springs to my mind Mr Johnson.

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DISCUSSION

1MR JOHNSON:

Thank you Your Honour.

2MR DEVRIES:

Just going to the relevant section Your Honour.

3

At Paragraph 19 of those orders - --

4HIS HONOUR:

Well I don't have the orders in front of me.

5MR DEVRIES:

Yes I'm just going to read it to Your Honour.

6

It's one sentence.

7

reside at 166 Queen Street, Altona" which is one of the

8

properties the subject of this proceeding.

9

history that follows that which I submit to Your Honour

10

"The mother and the child shall

There is a

is relevant to these proceedings.

11HIS HONOUR:

I'm not sure how but what I can - instead of

12

receiving those orders as an exhibit, I think I can take

13

it therefore that there is an order Federal Magistrates'

14

Court 26 September 2007, what is it Paragraph 19?

15MR DEVRIES:

Paragraph 19 Your Honour, yes.

16HIS HONOUR:

That the plaintiff and Illyana - - - ?---And the

17

children.

18- - - be permitted to reside at where? 19MR DEVRIES: 20

166 Queen Street, Altona.

Were you present when

those orders were made?---Yes I was.

21Were those orders made by consent or - sorry that 22 23

part - - (Audio malfunction)

24HIS HONOUR:

- - - the evidence of (indistinct) not permitted

25

to be used as a collateral attack on

26

Mr Johnson's credit.

27MR DEVRIES:

If Your Honour pleases.

Your Honour the simple

28

question of what's happened to 166 Queen Street, Altona

29

is dealt with in previous orders of this court.

30HIS HONOUR:

That's what I understand.

31MR DEVRIES:

And it - --

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DISCUSSION

1HIS HONOUR: 2

Well can I ask you this?

Did you continue to

reside in the property?

3MR JOHNSON:

Your Honour - - -

4HIS HONOUR:

Look I've asked a question.

5

patience with the pair of you.

6MR JOHNSON: 7

Sorry Your Honour, I never resided at that

property, full stop.

8HIS HONOUR: 9

I'm sorry I'm losing

Did you continue to reside at the property?

---After the relationship broke down?

10Yes?---Yes. 11For how long?---Until the last time I was in this court and I 12

was given residence of No.2 Dorrington Street.

13That's by Justice Hansen is that right?---That's correct. 14In July?---That's right, yes. 15Has the property been sold? 16

The Queen Street property?

---Yes it has now.

17When was it sold?---Not so many weeks ago. 18

Probably less than

four weeks ago, under value for $627,000.

19Who sold it?

Mr Johnson or did the mortgagee?---The mortgagor

20

stepped in.

The agents they selected were Century 21 of

21

Williamstown.

22And you - so when did you move out of the property? 23

2008 did you?

24

---Yes, shortly thereafter.

To July

About the time of Justice Hansen's order?

25You'd moved then into Dorrington Street is that right? 26

---That's correct.

27MR DEVRIES:

This is relevant for the summons as well Your

28

Honour.

When did you vacate to Dorrington Street?

29

---To - - -

30Sorry I withdraw that. 31

Have you vacated to Dorrington Street?-

--Yes I have apart from a few (indistinct) items that are

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DISCUSSION

1

left lying around two weekends ago, yes.

2And what have you done with the keys to 2 Dorrington Street?--3

Nothing yet.

4Have you caused Mr Johnson to be notified of your vacation of 5

those premises?---I've caused my lawyers to be notified

6

which in turn I would assume would let

7

Mr Johnson know but he seems to have trouble being

8

contacted.

9MR JOHNSON: 10

I've just been notified this instance for the

first time Your Honour.

11MR DEVRIES:

Whilst you were at 166 Queen Street, Altona did Mr

12

Johnson ever turn up without warning or uninvited?---Yes

13

constantly.

14And did he come onto the premises on any of those occasions?--15

Yes he did.

16MR JOHNSON:

Your Honour these are incredibly broad questions.

17HIS HONOUR:

Why - how is this relevant?

18MR DEVRIES:

It goes to the nature of her occupation of the

19

premises Your Honour.

20

marginal - - -

It's probably, with respect,

21HIS HONOUR:

Well, I'll disallow the question.

22MR DEVRIES:

If Your Honour pleases, I'll move on, Your Honour.

23HIS HONOUR:

This case should complete, properly run, by both

24

sides in two days, if we can stay relevant and directed

25

to issues of contribution and the like which are relevant

26

under s.285 and are also relevant in relation to the

27

constructive trust.

28

sides, we'll get there, we won't have to worry about

29

Monday.

If we stick to those issues on both

30MR DEVRIES:

If Your Honour pleases.

31HIS HONOUR:

Do you have any records at all as to the amounts

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DISCUSSION

1

of money you say you put into the properties, such as at

2

Altona?---No, everything was stolen, Your Honour.

3And were all the sums paid by you on improvements paid by cash, 4

were they?---Yes, they were.

5You don't have any receipts?---No, I don't, although I could 6

probably get an old bank record for my deposit towards

7

Altona, and other records of money through those

8

accounts.

9Well, that's a matter for you, it's - I'm just interested in 10

what evidence there is in relation to it?---There is no

11

hard evidence, it has all been stolen.

12Mr Devries. 13MR DEVRIES:

May it please Your Honour.

Following - sorry,

14

from the time that you separated, did you make any

15

payments in respect to the mortgages on any of the

16

properties?---No.

17Did you make any payments in respect to any of the outgoings on 18

any of the properties, such as rates, taxes,

19

insurances?---No.

20Did you do any improvements or maintenance to any of the 21

properties?---Maintenance, yes, just everyday stuff.

22MR JOHNSON: 23

submit, need to be a bit more precise.

24HIS HONOUR: 25

Your Honour, both the question and the answer, I

Well, they're not of much value if they aren't, I

don't think you need to help (indistinct) in their case.

26MR JOHNSON:

Right, thank you.

27MR DEVRIES:

Have you seen any documents in relation to the

28

sale of any of the properties that we've been discussing

29

today and yesterday?---Yes, there was the sale of Lisa

30

Court, which the majority of the proceeds went to pay the

31

outstanding mortgage on that, with a remainder of about

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DISCUSSION

1

$25,000 that Mr Johnson had at his own disposal, I don't

2

know what happened to that money.

3

the refinancing of Caulfield, the purchase of Torquay.

Of course, there was

4Did you see any documents in relation to either of those 5

transactions?---Yes, I have.

6

that's probably about it.

There - sorry, I think

7Have you received any money from the sale of any of the 8

properties that I've asked you about in the last two

9

days?---No.

10HIS HONOUR:

Now, Mr Devries, your client's just referred to

11

Lisa Court, she's given no evidence previously about Lisa

12

Court, I also notice she hasn't given evidence yet about

13

the Hawkhurst property or, I think, Inverloch Drive.

14

Now, I don't know whether they - you're intending to ask

15

her questions about that, you opened them, but you - I

16

don't - I don't have

17

any - - -

18MR DEVRIES: 19

I must say, Your Honour, I thought I'd asked her

about Inverloch Drive, but I may - - -

20HIS HONOUR:

I might have overlooked it, but - - -

21MR DEVRIES:

It would have been fairly late yesterday.

22

I

thought I had asked her about Lisa Court.

23HIS HONOUR:

All right.

24MR DEVRIES:

But I'm quite happy to ask you again.

25HIS HONOUR:

You opened them.

26MR DEVRIES:

Would Your Honour just bear with me for a moment,

27

and I'll just - - -

28HIS HONOUR:

Yes, but (indistinct).

29MR DEVRIES:

Page 105 of the transcript, there is a reference

30

to Lisa Court.

31HIS HONOUR:

That's in opening.

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You opened all these

171

DISCUSSION

1

properties.

2MR DEVRIES:

Sorry.

3HIS HONOUR:

I'm talking about evidence.

4MR DEVRIES:

I apologise, Your Honour, I - - -

5HIS HONOUR:

You asked your client yesterday, apart from the

6

rented properties, about Dorrington Street.

7MR DEVRIES:

Yes.

8HIS HONOUR:

- - - and at the close of play you'd got onto

9

Queen Street.

We've dealt with more of Queen Street, the

10

Caulfield property, and the Torquay property, but I

11

just - - -

12MR DEVRIES:

I'm indebted to Your Honour.

13HIS HONOUR:

Ms Cressy referred in her - in an answer just into

14

Lisa Court, but apart from that, she has not been asked

15

anything about Hawks Court, Lisa Court, or Inverloch

16

Drive.

17MR DEVRIES:

Look, I apologise, Your Honour, and I thought I'd

18

been following some notes, and obviously

19

I've - - -

20HIS HONOUR: 21

better draw that to your attention.

22MR DEVRIES: 23

Yesterday was a topsy turvy day, but I thought I'd

And I'm indebted to Your Honour, I was very

distracted yesterday.

24HIS HONOUR:

I understand.

25MR DEVRIES:

I probably should not have proceeded.

26

Hawkhurst

Court, Hoppers Crossing?---Yes.

27Do you recall that property?---Yes. 28Ten Hawkhurst, what sort of property was that?---That was a 29

property - house and land package, again, much like Point

30

Cook, although that was built through Divine Pioneer,

31

much cheaper - - -

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DISCUSSION

1Sorry, when was it purchased, approximately?---Pretty much the 2

same time as Point Cook, yes, in the same timeframe as

3

Point Cook.

4Point Cook being 2 Dorrington Street?---Yes, that's right. 5Who located the - - 6HIS HONOUR:

Could I ask you, within your statement of claim,

7

it's been pleaded that Dorrington Street, Point Cook, was

8

purchased in August 2002, does that sound about right?

9

---I can't be precise on that, I'm sorry.

10And Hawkhurst Court was purchased Feb 2003, again, just 11

roughly, are those about the right time frames?

12

---Well, both the Divine houses, Hawkhurst and Lisa

13

Court, were after Point Cook, so yes.

14Yes.

Sorry, Mr Devries.

15MR DEVRIES:

If Your Honour pleases.

Who located the Hawkhurst

16

property or the Hawkhurst land and house package?---

17

Mr Johnson and I together.

18What involvement did you have in the process of purchasing that 19

property?---James took care of most of the sale, but we

20

picked out the internal paint colours, things like that,

21

the way we wanted the property to be presented, the

22

façade that we wanted on it, which particular block of

23

land we were going to choose out of the limited

24

selection.

25How much, approximately, was the whole property, that's the 26

land and the house?---Under 200,000.

27Sorry?---Under 200,000, I believe. 28All right, and where did the money for the purchase of that 29

probably come from?---James arranged finance for that,

30

and I gave him a little bit of money towards the deposit

31

that he requested.

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DISCUSSION

1Can you recall how much you gave him towards the deposit? 2

---I don't think it would have been more than three or

3

$4000.

4Did you have any - - 5HIS HONOUR: 6

How much was the deposit, do you know?---I've got

no idea, it was just a cash flow thing for him, but.

7So you don't know how much he put in?---No. 8MR DEVRIES: 9

Were any - sorry, was anything done to the

property after you purchased it?---Yes, I did landscaping

10

on it, front and rear yard, twice, because the first

11

tenants didn't look after it properly, all the plants

12

died, so the whole thing had to be redone (indistinct)

13

thought, really, the cottage garden didn't work the first

14

time, so.

15

first tenants were quite rough on the house, they ruined

16

carpet with stains in nearly every room, there were doors

17

with hole punches in them, walls with hole punches in

18

them that I'd puttied up and plastered myself.

19

organised for Carpet Court to come out and replace the

20

stained carpet.

21

of properties on the market and we were having trouble

22

getting a new tenant in in its current condition, so a

23

lot of work needed to be done on it to bring it back up

24

to speed, to scratch.

I also did touch ups inside the property, the

I

At that point in time, there were a lot

25Who paid for those repairs, renovations, rectifications? 26

---I did, although I think we paid through the real

27

estate agent for repair to be done to the front door,

28

because I couldn't physically do that myself, the front

29

door wasn't shutting to come off its hinges.

30Who dealt with the agents who were the rental managers of the 31

property?---Initially James did, but then he said that he

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DISCUSSION

1

didn't have the time for it, so I took over the

2

management of the management.

3HIS HONOUR: 4

Did - I take it the rent was used to offset the

mortgage?---Yes.

5Was it sufficient to offset the mortgage, or was the place 6

negatively geared?---No, it was negatively geared.

7Who paid the balance of the mortgage instalments?---James did. 8Do you know how much they were?---I think it would have been 9

300 a month, and I think the rent was 230 to 240.

10MR DEVRIES: 11

The 300 a month, was that the mortgage - - -?

---That's the mortgage repayment, yes.

12Can you tell His Honour approximately how much you spent from 13

your moneys for the renovations, repairs, painting,

14

landscaping, gardening, and the other things that you did

15

on that property?---From memory, it was under $2000 for

16

the carpet, because I got discounted carpet.

17

gardening in the two lots, maybe 1500 to 2000 as well,

18

the landscaping and the plants and the rock garden.

19

Physical labour of puttering up and plastering all those

20

holes, I don't know, the cost wouldn't have been more

21

than $10 for the plaster,

22

but - - -

The

23Yes (indistinct) about the materials at the moment, I'll ask 24

you about the labouring?---Yes, sure.

25What about paint, or have we covered it or not?---I don't think 26

it was more than $100.

27And you mentioned carpets, did any of the carpets have to be 28

replaced, or?---Yes, that's what I paid for, but only in

29

the areas that were ruined.

30About how much did you spend on those bits of carpet?---I'm 31

sorry, I thought I already said that, it was about under

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DISCUSSION

1

$2000 for the carpet and the labour together.

2Now, you said that you did a lot of these things yourself, can 3

you give His Honour an indication of how many hours you

4

spent working on that property?---Well, physically,

5

landscaping's a very long, lengthy process, weekends at a

6

time, weeks, when the children were at school, I'd go up

7

to the houses and be working on it while they're at

8

school.

The gardens were the most labour intensive.

9If you had to put a total number of hours on it, what's the 10

range, between how many hours and how many hours?---On

11

that particular property maybe a total of 20.

12What about the works you did on Dorrington Street, can you tell 13

His Honour how much of your money you spent on the

14

improvements, rectification, repairs, completion of the

15

work?---Well that was over years and constant, constant

16

work so that's a little bit hard to judge just off the

17

top of my head.

18

curtains and the curtain rods and all those fittings and

19

fixtures.

20

it took a lot, we had to keep going back and buying more.

21

That was like $150 a tub, we must have ordered about 12

22

of those, so - - -

I spent thousands of dollars on the

The rendering - render paint was expensive and

23HIS HONOUR:

$1800?---It just kept going and going.

24MR DEVRIES:

What about paint?---200 perhaps.

25Did you have to spend anything on the garden and the 26

landscaping?---I spent a fortune on the garden there, I

27

had like an orchard out the back, I had cactus gardens

28

with exotic catcuses - - -

29Cacti actually?---Right, cacti. 30HIS HONOUR: 31

The general comments such as thousands and the

fortune firstly is very wide, but it really doesn't,

1.MI:SK 03/12/08 2Cressy

FTR:5

176

DISCUSSION

1

unfortunately, assist in the type of exercise you will be

2

asking me to undertake under s.285.

3MR DEVRIES:

I am going to try and - - -

4HIS HONOUR:

There needs to be some specificity about this.

5MR DEVRIES:

The difficulty of course is, Your Honour, that

6

without the documents that mysteriously

7

disappeared - - -

8HIS HONOUR: 9 10

Well I follow that, but this evidence does not

assist a lot unless there's at least some sort of idea what sort of figures we are talking about.

11MR DEVRIES:

I was going to try and - with respect, Your

12

Honour.

(To witness)

Going back to the render, you said

13

it was $150 a tub?---Yes.

14How many tubs did you say that you?---I'm pretty sure we got up 15

to 12, or 11 and a half, there was half a tub left over.

16HIS HONOUR: 17

---Yes, or I gave my mother the money to go and get it.

18MR DEVRIES: 19

Did you purchase each of those tubs yourself?

Now the curtains and the fittings and the fixtures

relating to the curtains?---Yes.

20How much did you spend in total on those for Dorrington 21

Street?---Maybe 2000, I can't be sure it was a long time

22

ago now.

23You said that you spent a fortune on the landscaping and the 24

garden, the orchard and things like that?---Yes, yes.

25If you can give His Honour figures for various components of 26

that, we'll start with the cacti, how much did you spend

27

on the cacti in total?---Why I say it's a little bit

28

difficult to judge and why I say it's a lot of money is

29

because it was probably either all of the years of the

30

continual gardening, plants dying, plants being replaced,

31

probably about $5000, which even to my own mind seems a lot

1.MI:SK 03/12/08 2Cressy

FTR:5

177

DISCUSSION

1

to spend on gardening, but it was an activity that we

2

enjoyed doing, so.

3What did the $5000 cover?---Fruit trees, lawn seed, of course 4

we've got the back block, it's not just Dorrington

5

Street, because we've got Inverloch which we treated as

6

part of our garden, it was our extended back yard.

7Yes?---That we had the orchard on, we had the vegetable 8

gardens, we had the cacti garden.

9

paths, a stone rockery areas, fish pond areas, it was

10

We did landscaping of

quite expansive the property.

11You gave evidence yesterday, to the best of my recollection, 12

that there were tradesmen that were brought in to do

13

various things in the property?---Yes.

14Who paid for those tradesmen?---James paid for the first lot, 15

we had some Werribee landscaping company do some very

16

specialised scalloped clad paving for us, James paid for

17

that.

18

tradespeople come through, but we did have some that came

19

through from Metricon to tidy up a couple of things that

20

weren't done properly after we first moved into the

21

house.

22MR DEVRIES:

The rest of the time - we didn't have a lot of

Metricon paid for those. Now - - -?---We really didn't - - -

23You gave evidence of doing some painting and I think you 24

mentioned painting a feature wall?---Yes.

25Who paid for the paint?---I did. 26And the paintbrushes and the thinners and stuff like that? 27

---Yes, again I did.

28How much did you spend in all on those items?---Probably in 29

excess of 200 but I'll just say 200.

30You talked about mowing the lawns. 31

What did you mow the lawns

with?---With James' lawn mower that he got from his ex-

1.MI:SK 03/12/08 2Cressy

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178

DISCUSSION

1

wife's house in Mulgrave.

2MR JOHNSON:

Excuse me Your Honour, we could take weeks at this

3

pace.

Is there perhaps something we could do to speed

4

things up a little?

5HIS HONOUR:

Is that appropriate?

There are many ways this could have been.

6

we're doing it this way.

7

he can.

But

Mr Devries will be as quick as

8MR DEVRIES:

I'm not trying to slow the matter.

9HIS HONOUR:

I understand that.

I think the major items have

10

been paint $200, isn't going to make much different under

11

Part 9.

12

at, isn't it?

But it's the major items you're really looking

13MR DEVRIES:

Yes, Your Honour.

Now - - -

14MR JOHNSON:

Your Honour, may I just say that Ms Cressy has

15

given evidence-in-chief that has taken close to taking up

16

a whole of court.

17

cross-examination - - -

18HIS HONOUR:

Now if I'm going to take a whole of

Ms Cressy only started evidence about - at about

19

three o'clock yesterday.

20

evidence about three o'clock.

21

quicker she will do it.

22MR JOHNSON: 23

The less interruption, the

Sir, I'm just anxious that both parties get an

equivalent amount of time.

24HIS HONOUR: 25

And she has only resumed her

Yes.

Well you will have a fair opportunity to

cross-examine her when your time comes.

26MR JOHNSON:

Yes.

27HIS HONOUR:

Mr Devries.

28MR DEVRIES:

May it please Your Honour.

(To witness) 12 Lisa

29

Court, Hoppers Crossing, was that purchased before, after

30

or approximately same time as Hawkhurst Court, Hoppers

31

Crossing?---At approximately the same time.

1.MI:SK 03/12/08 2Cressy

FTR:5

179

DISCUSSION

1And what sort of property was that?---That was again a house 2

and land package purchased through Devine Pioneer Homes.

3

The two properties were almost identical, one street

4

apart in Hoppers Crossing.

5And what was the purchase price for 12 Lisa Court, Hoppers 6

Crossing?---Again it would have been in the vicinity of

7

200,000.

8And how much did you put towards the purchase of that 9

property?---They were both pretty much purchased together

10

so again what I said before about giving James 2000-3000

11

in cash towards the deposit would have covered that.

12So is it 2000-3000 for the two combined or 2000-3000 for each 13

of them?---No.

No.

Just for the two combined.

14Did you make any payments towards the mortgage payments for 15

10 Hawkhurst Court, Hoppers Crossing?---No, I didn't make

16

any mortgage payments towards that property.

17What about Lisa Court?---Lisa Court was purchased for my mother 18

in James' name.

Her rental in effect was the mortgage

19

repayments of the property.

20Did you do any work on Lisa Court once it was purchased? 21

---I did a little bit of gardening with my mother and

22

helped with some paving in the backyard.

23

it.

That was about

24Did you spend any money on any improvements, maintenance, 25

rectification at Lisa Court?---Nothing I can specifically

26

think of right at this moment.

27HIS HONOUR:

Did your mother's rental payments cover the

28

mortgage payments?---But for a sum of $45 which James

29

covered.

30That's each month?---Yes.

Again it was negatively geared.

31Yes. 1.MI:SK 03/12/08 2Cressy

FTR:5

180

DISCUSSION

1MR DEVRIES:

I was about to ask that question Your Honour.

2

indebted to Your Honour.

3

were you involved in the purchase of that property?---

4

Yes, I was.

I'm

7 Inverloch Drive, Point Cook,

5And what involvement did you have in the purchase of that 6

property?---Not much other than looking out the back

7

garden and seeing the For Sale sign pop up and telling

8

James that it was on the market.

9That was the one that you just mentioned your garden extended 10

into?---Yes, it was - it was right on the back of

11

2 Dorrington Street, so.

12Can you recall how much that was purchased for?---It was either 13

79 or 89,000.

14Did you put any money towards the purchase of that property? 15

---Not directly that I can recall, no.

16HIS HONOUR:

How was it paid for, mortgage?---We - I think we

17

added it onto Dorrington Street because we'd already been

18

in Dorrington Street for approximately nine months and

19

the house had gone up in value, so we refinanced that to

20

purchase the land, and everything was going up really

21

quickly in value, so we thought it was frugal to - - -

22I'm not sure - - -?---join them together. 23- - - it said who was making the mortgage payments on 24

Dorrington Street?---Mr Johnson was.

25Do you know how much that was?---I think it would have been 26

around 450 a week.

27How much did Inverloch - 450 a week or a month?---I think it 28

was about 450 a week - I'm thinking later on, combined

29

they must have been about 450.

30A week?---Yes. 31MR DEVRIES:

The time you were living there you were working?

1.MI:SK 03/12/08 2Cressy

FTR:5

181

DISCUSSION

1

---There were breaks between work and study, yes.

2What study were you doing?---I resumed high school at Taylors 3

College and got my - finished my high school education,

4

as I had left school early with the children.

5

went on to TAFE and studied footwear design for three

6

years, I did start that while I was at the Point Cook

7

property, I started that 2003.

8

children I did do work part-time, either with my

9

aromatherapy business or my adult service business.

Then I

So between study and the

10Now, who did the food purchases for your household during your 11

domestic relationship with Mr Johnson?---I did all the

12

family food shopping.

13Sorry?---I did all the family food shopping. 14Who paid for the food and other household supplies - - -? 15

---I did.

16Can you give His Honour an indication of what the average food 17

and household bill would have been?---My grocery budget,

18

and including take away food, was always $300 a week.

19Is that right through the relationship or did it 20

vary - - -?---Pretty much, yes.

Well, as the boys got

21

bigger they got hungrier, so that wasn't like that to

22

start with, but.

23Did that include food and take away for Mr Johnson's 24

children?---Yes it did.

25When they visited you?---Yes. 26Did you put any money towards mortgage payments at any stage of 27

your relationship?---No.

28

household expenses.

All of my money went to

29What about utilities?---No, the majority of that was in his 30

name, he did most of that.

31Rates and insurance?---Well again if the property is in his 1.MI:SK 03/12/08 2Cressy

FTR:5

182

DISCUSSION

1

name of course it would make sense to have that in his

2

name as well.

3Repairs and maintenance to the properties that you lived in 4

from time to time, who paid for those?---Well normally

5

that was me as I've stated before.

6Did you go out very often?---Yes we wined and dined. 7Who paid for those?---Normally it was me with cash. 8

He always

had cash problems or so he said.

9And what would be the average expenditure per week on eating 10

out and going out, visiting the zoo et cetera?---I would

11

take it fortnightly and I would say 180 to 200 for an

12

evening out, movies, dinner.

13MR JOHNSON:

Sorry Your Honour I didn't catch that answer.

14HIS HONOUR:

One hundred and eighty to 200 per fortnight for

15

dinner and the movies.

16MR JOHNSON 17MR DEVRIES:

I'm indebted, thank you. I think she said evening out (indistinct).

Now

18

would Your Honour just bear with me for a moment.

I'm

19

just turning to some matters in the defence in counter

20

claim in this matter.

21HIS HONOUR:

While Mr Devries is doing that, can I just

22

ascertain from you the status of all these properties.

23

Firstly Dorrington Street?---I believe it's soon to be in

24

the possession of the mortgagee.

25So there's a statutory notice on that is there?---I believe so, 26

yes.

27I'll work down the list, I think is easiest.

Hawkhurst Court,

28

that's been sold has it?---I've got no idea about that

29

one Your Honour.

30Lisa Court?---Sold. 31Was there any equity left in that after the - - - ?---There was 1.MI:SK 03/12/08 2Cressy

FTR:5

183

DISCUSSION

1

an excess of - I'm sorry, I can't be precise.

2

either 21,000 or $25,000 after that was - - -

It was

3Was that a mortgagee sale?---No it wasn't. 4So there was an excess of about 20 to 25,000 was there? 5

---Yes.

6And did you get any of that?---No. 7Inverloch Drive?---Sold recently.

I'm not quite sure as to how

8

much or what's happening with the proceeds there.

9

is through Century - I'm sorry, no I can't be precise on

10

That

that.

11Was it a mortgagee sale or?---Yes it was a mortgagee sale. 12And you don't know if there's any balance left?---No, not 13

exactly.

14Queen Street is sold?---Yes it is. 15And I was told in opening by Mr Devries yesterday there was a 16

balance of $48,000 but the mortgagees claim their costs

17

of 55?---That's correct to my knowledge.

18MR DEVRIES: 19

That's - the 48 was net of that 55.

It's after

the 55 it was expected to be 48.

20HIS HONOUR:

I misunderstood.

21MR DEVRIES:

I might have - - -

22HIS HONOUR:

So there's actually a balance of 183,000 but the

23

mortgagees claim their costs of 55 (indistinct) dispute.

24MR DEVRIES:

Yes.

25HIS HONOUR:

I see.

26

sorry.

Is that your understanding?---Yes I'm

I thought that's what you said.

27No perhaps I misunderstood what was put yesterday.

Gibson

28

Street, the Caulfield property?---From the letter from

29

the Commonwealth Bank that's entwined with 7A Endeavour

30

Drive and that messy situation so.

31Yes.

I think that covers it.

1.MI:SK 03/12/08 2Cressy

FTR:5

Mr Devries. 184

DISCUSSION

1MR DEVRIES:

In his amended defence and counter claim

2

Mr Johnson refers under the heading of "(Indistinct),

3

Theft and Burglary" to his records and possessions.

4

you - - -

5MR JOHNSON:

Have

Sorry Your Honour but there were a number of

6

thefts and burglaries so could we have a reference date

7

possibly to clarify that?

It may assist.

8MR DEVRIES:

I'm quoting directly from - - -

9HIS HONOUR:

The counter claim, yes continue.

10MR DEVRIES:

- - - the counter claim.

Have you retained any of

11

Mr Johnson's records or possessions in your personal

12

possession or control?---No.

13Do you know where his - where records and his possessions may 14

be?---I believe they're kept in the Family Court archives

15

or evidence room, sorry whatever.

16Did you provide any of those to Victoria Police?---Yes I did. 17Did you do that voluntarily or under compulsion?---A bit of 18

both, but I gave them up willingly.

19

evidence so.

They, they were

20At the time they came into your possession who did you believe 21

they belonged to?---They were our joint financial

22

information documents.

23When they came into your possession which premises were they 24

in?---At our property of No.2 Dorrington Street at Point

25

Cook.

26Mr Johnson says that you retained two mobile telephones. 27

you - have you got those two mobile telephones?

28

---No.

Did

Those phones - - -

29Where are they now?---In evidence over at the Family Court. 30

They have evidence of him stalking me on them.

31At the time that - were they ever in your possession? 1.MI:SK 03/12/08 2Cressy

FTR:5

185

DISCUSSION

1MR JOHNSON:

Your Honour that was a credibility - - -?

2

---Temporarily before I could pass them onto my lawyer

3

for evidence.

4

for evidence, the police came and intercepted them.

5MR DEVRIES:

Before I could pass them onto my lawyer

At the time that you gave them to your lawyers,

6

did you believe they were yours, Mr Johnson's or joint

7

property?---Joint property.

8Do you know anything about a mobile modem card?---I know 9

nothing about that.

10Do you know anything about other telephony communications and 11

data storage devices?---No.

12Did you take or retain any unopened mail addressed solely to 13

Mr Johnson?---No.

14Did you take any personal, business or client mail or documents 15

addressed solely to Mr Johnson?---Not intentionally no.

16

And everything was handed back to the police anyway.

17All of the documents, records and items other than mobile 18

phones and telephony equipment, all that came into your

19

possession at 2 Dorrington Street, was that all handed to

20

the Victoria Police?---Yes, it was.

21Did you retain any of it after that?---No. 22Did you get any of it back from Victoria Police after that? 23

---No, I think it's still in evidence as far as I'm

24

aware.

25HIS HONOUR:

In evidence where?---At the Family Court.

26So they were taken by the police and I take it the police must 27

have been subpoenaed to the Family Court?---Yes, they

28

were.

29And all those matters were then put in evidence?---Yes. 30MR DEVRIES: 31

If there's any controversy about the matter, my

instructors can give evidence that the - the items were

1.MI:SK 03/12/08 2Cressy

FTR:5

186

DISCUSSION

1

subpoenaed - were the subject of a subpoena issued by the

2

Federal Magistrates' Courts to Victoria Police.

3

Police initially objected to producing the documents

4

under - the documents and other items under subpoena and

5

ultimately they produced them under subpoena.

6

lodged with the Federal Magistrates' Court and presumably

7

they will remain with the Federal Magistrates' Court

8

until His Honour Federal Magistrate O'Dwyer hands down

9

his decision which is the decision I indicated to Your

Victoria

They were

10

Honour yesterday was listed for last Friday and was

11

unexpectedly - - -

12HIS HONOUR:

Look, anyway, we know where the documents are.

13MR DEVRIES:

Yes.

14HIS HONOUR:

Right.

15MR DEVRIES:

Sorry, I was just trying to attempt to answer Your

16

Honour's question.

17MR JOHNSON:

Excuse me Your Honour, is there a process by which

18

those documents could be shown to Your Honour in these

19

proceedings?

20HIS HONOUR: 21

chief.

Would that be helpful to Your Honour?

That's a matter for you.

I'm hearing evidence in

Mr Devries is taking his client through it.

22MR JOHNSON:

Sorry Your Honour.

23MR DEVRIES:

At the time you took possession of the documents

24

and other records, leaving aside the telephones for the

25

moment, what was your intention when you acquired those

26

documents and records?---It was - I thought it was

27

financial information about our properties and our

28

financial situation that needed to be used in court.

29

apart from what I said about the evidence and the mobile

30

phones, the majority - - -

31No, leave the mobile phones. 1.MI:SK 03/12/08 2Cressy

FTR:5

We'll come to that. 187

And

And did you DISCUSSION

1

have any concern about what might happen to those

2

documents if they weren't secured?---After the theft of

3

all my other documents and my years of files just gone -

4

vanished, I was worried that they might get destroyed or

5

go seriously missing.

6The two mobile phones.

Why did you take possession of

7

those?---Because James had - I'm sorry, Mr Johnson had

8

admitted to me that he had taken photo evidence of

9

stalking me.

And he used that word stalking but he

10

admitted to me and so when I saw the phones there, I

11

realised that they contained the evidence.

12Did you access the photographs or the evidence that you talked 13

about on those phones?---Yes, I did see them.

14And what did they show?---Photos of my work premises, my car 15

and work premises, things like that.

16To save time sir, I'll anticipate a question that I expect to 17

come from my learned friend.

18HIS HONOUR:

M'mm.

19MR DEVRIES:

Prior to you getting possession of those records,

20

documents and two mobile phones, did you have any

21

discussion with your solicitors about those documents,

22

records and mobile phones?---No.

23Subsequent to you obtaining those various items, did you have 24

discussions with your then solicitors?---Yes.

25Now did they - without going into the actual content, did they 26

make any suggestions to you or give you any advice as to

27

what you should do with those items?

28

---I'd already intended to give them - - -

29No.

31

No.

No.

Just answer that question yes or no please?

---No.

1.MI:SK 03/12/08 2Cressy

FTR:5

188

DISCUSSION

1And you gave them up to the police.

Was that your idea to give

2

them up to police or somebody else's idea?---No,

3

Mr Johnson had reported an aggravated burglary.

4

came in with guns blazing until they realised the

5

situation which I - - -

They

6No, you can't evidence about what might be in their state of 7

mind.

Was it at the suggestion of the police, your own

8

motivation or your previous solicitors that you gave all

9

these items up to the police or a combination of some of

10

these?---I can say definitively they were rather

11

aggressive, I can say that they have been misinformed,

12

and I can also say they had a search warrant and I can

13

also say that I complied willing and handed up the

14

documents.

15So they showed you a search warrant?---Yes they did. 16Then they took possession of the documents and the mobile 17

phones?---Then I gave them possession of them, yes.

18Were you charged with any offences as a result of taking 19

possession of those items?---No I wasn't.

20Were you ever convicted of any offences as a result of the 21

probe?---No I wasn't.

22Have you been advised by the police as to whether they're going 23

to take any action against you as a result - - -

24HIS HONOUR:

Is that relevant?

As I understand it there's a

25

claim I think for conversion or for trespass to

26

goods - - -

27MR DEVRIES: 28

It's also claimed that she perpetrated a theft,

theft and burglaries, Your Honour.

29HIS HONOUR:

So what's the opinion of the police got to do with

30

it?

Perpetrating thefts, this is a civil court, I take

31

it I read that as trespass to goods, annexure on the

1.MI:SK 03/12/08 2Cressy

FTR:5

189

DISCUSSION

1

case.

2MR DEVRIES:

I suspect that's what it is, Your Honour, but I

3

don't wish to assist Mr Johnson in framing his

4

counterclaim, Your Honour - - -

5HIS HONOUR:

No no but what the police think is irrelevant.

6MR DEVRIES:

If Your Honour pleases.

It's been suggested

7

through the course of these proceedings Ms Cressy, that

8

you've obstructed or attempted to obstruct the sale of

9

various of these properties.

Have you taken any steps to

10

stop the sale of any of the properties the subject of

11

these proceedings?---Not at any point in time, I've in

12

fact assisted the sale of the properties.

13

came onto my property with a private investigator and

14

Tassielle Hassan, who was the realtor who sold us the

15

property in the first place, and he wanted to have a

16

viewing, a new viewing of the property and I took him

17

through the property.

18

but I did not in any way prevent the sales, it was not in

19

my interest to.

When James

I wouldn't allow James to come in,

20It's been suggested by Mr Johnson yesterday that you, having 21

been ordered by this court, to sell 2 Dorrington Street,

22

that you refused to do so, did you refuse to sell

23

2 Dorrington Street?---At no point in time did I refuse.

24Were there obstacles to your knowledge to you disposing of 25

2 Dorrington Street, pursuant to those orders?---The

26

orders didn't really give me power to sell the property,

27

although it seemed like that - - -

28HIS HONOUR: 29

anything in the counterclaim?

30MR DEVRIES: 31

Is this relevant to any - is this relevant to

Well, Your Honour, it's an allegation made by

Mr Johnson yesterday - - -

1.MI:SK 03/12/08 2Cressy

FTR:5

190

DISCUSSION

1HIS HONOUR: 2

That's irrelevant.

I am here to adjudicate the

claims by your client in the counterclaim.

3MR DEVRIES:

Your Honour, I understand that, with respect, the

4

issue may arise, Your Honour, in respect to any orders

5

that Your Honour might make about the sale of any

6

properties that haven't been sold in that extreme

7

discovery that with great respect to Their Honours that

8

the precise wording of the orders made that were thought

9

to permit my client to sell the properties, aren't

10

recognised by the Titles Offices empowering her to do so

11

and I was only going to raise that at this stage.

12

it's necessary, Your Honour, I can raise that at a later

13

stage, but there is some correspondence from the Titles

14

Office that basically says that the particular wording

15

adopted earlier in these proceedings doesn't have the

16

effect that it was intended to have.

17

If Your Honour is not assisted by that at this stage I

18

won't persist with that.

19HIS HONOUR:

If

Well I don't see how it addresses the relevant

20

issue in the case at the moment, the question of relief

21

if I came to the view that the property should be sold, I

22

would deliver a judgment to that effect in precise

23

orders, if it involved that it would be of use to have

24

someone from the Titles Office advising as to how those

25

orders should be formulated.

26

my days at the Bar, to ensure that whatever orders are

27

made in relation to the property are recognised by the

28

TI.

And I recall doing that in

I think that's an appropriate time to rise.

29MR DEVRIES:

Sorry, Your Honour, I wasn't aware of the time.

30

can indicate, Your Honour, I doubt that I've got more

31

than a few moments left with the examination-in-chief.

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1HIS HONOUR: 2

Fine.

Now I remind everyone, including you

Mr Johnson, we resume at 10 a.m. tomorrow.

3MR JOHNSON:

Thank you, yes.

4HIS HONOUR:

And I have an unfortunate habit of being punctual,

5

so I expect everyone to be here and ready to go at 10.

6MR DEVRIES:

And it was 3 o'clock?

7HIS HONOUR:

3.30.

8MR DEVRIES:

3.30, Your Honour.

9HIS HONOUR:

It was 3.30.

10

yourself, I know you are just quick out of the box.

11WITNESS:

For Your Honour to adjourn as a courtesy - - -

12HIS HONOUR: 13

Do you want to raise something

You just can't wait for me to get out,

10 o'clock tomorrow.

14<(THE WITNESS WITHDREW) 15ADJOURNED UNTIL THURSDAY 4 DECEMBER 2008 16

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