Brothel Gate Day 6 Am

1MR DEVRIES: 2

That matter is proceeding, Your Honour.

Your

Honour asked me a question yesterday - - -

3HIS HONOUR:

Yes.

4MR DEVRIES: - - - which I was unable to answer then.

I have

5

now received instructions and the instructions are that

6

to the best of my instructor's belief 166 Queen Street,

7

Altona was sold by mortgagees auction.

8HIS HONOUR: 9

Yes.

On 8 November?

Well, that was the date set

for the auction quite clearly.

10MR DEVRIES:

Yes, the difficulty we have, Your Honour, is that

11

the mortgagee has refused to provide us with information

12

on the basis that it's in their opinion none of our

13

business, that is why I have been a bit obtuse about it,

14

Your Honour.

15HIS HONOUR:

Is it common ground that there was $103,000 equity

16

in the property after payment of the mortgage with the

17

mortgagee paying $55,000 costs?

18

asserted to me.

19MR DEVRIES: 20

22

Can I say in that sort of figure give or take a

little bit.

21MR JOHNSON:

That I think has been

Mr Johnson, you don't - - -

Your Honour, Mr Devries did lead quite a bit of

detailed information in opening the plaintiff's case.

23HIS HONOUR:

Yes.

24MR JOHNSON:

Ms Cressy also gave a bit - I'm not sure she gave

25

as much detail - - -

26HIS HONOUR:

Yes, I am just trying to establish whether - it

27

seems both parties are a bit in the dark as to this, as

28

to what the actual situation is.

29MR JOHNSON:

Your Honour, all I know is that the orders that

30

were made by Cavanough J and Hansen J and what I read in

31

the newspaper on 10 or 11 November this year which is

1.LL:KG 09/12/08 2Cressy

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89

DISCUSSION

1

apparently hearsay.

2HIS HONOUR:

Yes.

3MR JOHNSON:

I fully understand the privacy reasons.

4HIS HONOUR:

I will simply work with what I have got, in fact

5

the onus of proof lies on the plaintiff to establish

6

exactly what assets there are against which she is

7

claiming an interest so the ball really lies in their

8

court.

9

box now.

Thank you, Mr Johnson, you may go to the witness

10MR JOHNSON: Thank you, Your Honour. 11
Thank you, sir.

orientate myself.

14HIS HONOUR: 15

Your Honour, I just need a moment to

Yes?---I put in a request this morning for a

larger witness box to accommodate my papers.

16I'm afraid that can't be built overnight?---Of course not, Your 17

Honour.

I had a team meeting with all of my alter egos

18

last evening, Your Honour, and I realised several things

19

that have gone a little bit amiss in the conduct of the

20

defence case.

21

that a plaintiff counsel will provide you with an

22

overview, a leading of the plaintiff's case before the

23

commencement of the evidence.

24

Friday morning, Your Honour, and obviously that is less

25

essential for a defence case, but I would have thought it

26

is equally essential for a plaintiff by counter-claim to

27

outline the counter-claims against the parties before

28

jumping into evidence

Your Honour did educate me on the reasons

29Well, we have gone past that stage.

We did discuss that on

You are giving evidence,

30

you will proceed with your evidence?---Is it too late now

31

to rectify that and give Your Honour a quick overview of

1.LL:KG 09/12/08 2Cressy

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90

DISCUSSION

1

the plaintiff's counter-claims against each of the

2

defendants by counter-claim.

3They are set out in the pleadings, I think they are fairly 4

they are not clear from the pleadings but the gist of

5

them is set out in the pleading.

6

continue with the evidence.

7

yesterday I don't want anymore time wasting at the

8

beginning of each session.

9

direct you, that is - with your evidence?---Your Honour,

10

I think we will

I said to you at the end of

So let us just proceed - I

I thought Your Honour might say - - -

11A judge is entitled to draw certain inferences when a 12

particular party seems to be doing everything he or she

13

can to avoid giving evidence.

14

draw that inference adverse to you?---Your Honour, I feel

15

a little - with no disrespect because I do appreciate

16

Your Honour immensely but I feel a little hobbled given

17

in my defence counsel alter-ego no trial experience

18

really since my moot court year in 1996.

Now, don't tempt me to

19Mr Johnson, you have acquitted yourself very well if I may say 20

so, if you haven't had any experience you have a number

21

of natural skills as an advocate.

22

continue with your evidence, this case has gone far too

23

long?---Your Honour, my estimate has always been three to

24

four weeks and I would be doing - - -

25Let us just proceed.

Now, let us just

I will begin to draw an inference adverse

26

to your credit - - - ?---Your Honour, I am keeping a

27

list - - -

28- - - as I am entitled to as you continually evade giving 29

evidence.

30

property at Altona and we seem to have established at

31

least that it was sold by mortgagee in November of this

1.LL:KG 09/12/08 2Cressy

Now, you were telling me about the sale of the

FTR:1

91

DISCUSSION

1

year?---Your Honour, might I - - -

2What topic are you going to move to now?---I had orientated 3

myself to give the leading overview of my case, so I need

4

a moment to re-think, Your Honour.

5

I am keeping a list of points because I realise that -

6

the importance of hearing at first instance, but

7

obviously there are matters that can only perhaps be

8

addressed on appeal.

9

points Your Honour.

With all due respect

I am keeping a list of appeal

10Yes, do that?---I ask that no inferences be drawn from that. 11No?---Thank you, Your Honour.

I will ask Your Honour to

12

refresh my memory please.

There were a number of bundles

13

of documents that during cross-examination of the

14

plaintiff were tendered to her, I believe the expression

15

was just for identification, not as exhibits.

16I think there was only one, and in fact now formally has become 17

an exhibit?---I did want to check perhaps towards the end

18

of my evidence.

19That was Exhibit 1 which was the blue folder relating to 20

Inverloch Drive?---Thank you, Your Honour.

21That is in absolutely?---So all documents that have been 22

tendered for identification are now fully - - -

23I think the only one you did tender for identification, the 24

transcript has you yesterday putting in the contract of

25

sale of Dorrington Street.

26

absolutely, the transcript marks it for identification?

27

---Yes, yes, in my evidence-in-chief Your Honour, but for

28

example the photocopies of Ms Cressy's two diaries.

I thought it went in

29No, they are Exhibit 3?---They are exhibits? 30

Honour.

31

included in the body of evidence.

Thank you Your

So they're not purely identified, they are

1.LL:KG 09/12/08 2Cressy

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92

DISCUSSION

1No, they are all part of the evidence?---Lovely, thank you Your 2

Honour.

3MR DEVRIES:

I think the difficulty with the Dorrington Street

4

exhibit, Your Honour, was there is some question mark

5

about whether it was complete or not.

6HIS HONOUR: 7

Complete, I agree, but I don't think it went in

for identification.

8MR DEVRIES:

Not to my recollection Your Honour.

9HIS HONOUR:

No, well Exhibit 25 will be in absolutely?---I

10

accept what my learned friend is saying.

11

mechanical parts of the contract, the same as the other

12

two exhibits for Altona and Inverloch Drive, without any

13

of the statutory information, rates, the sorts of things

14

that go into the bank.

15

sale but without the vendors statement.

16

the - - -

17HIS HONOUR:

It is the

Actually it is the contract to

It's eight minutes past ten.

That's what

I was in court by

18

ten o'clock, we still haven't had any evidence and I did

19

ask you yesterday to use the time profitably rather than

20

simply long speeches.

21

There are topics which you still need to address?---Thank

22

you, Your Honour.

23

evidence for my counterclaims without having given

24

Your Honour a pithy summary, but I shall do my best.

Please proceed with your evidence.

It is difficult for me to present the

25Well, you can adjourn out of the witness box, you can go to the 26

Bar table and give me a pithy summary.

27

making that complaint, it would probably be quicker?

28

---Thank you, Your Honour.

29You've got ten minutes to make an opening. 30

deliberate, intentional time wasting.

31

on doing that, you may do it.

1.LL:KG 09/12/08 2Cressy

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93

If you keep

I do regard this as But, if you intend

DISCUSSION

1MS SOFRONIOU:

And if I may Your Honour, in fairness to the

2

witness, may I say that regardless of the contents of the

3

pithy opening, we have come to meet the claim as pleaded.

4HIS HONOUR:

I agree.

5MS SOFRONIOU: 6

And as much as it departs one iota, my

application will be that Your Honour disregard it.

7HIS HONOUR:

I agree.

8MR DEVRIES:

I make the same application Your Honour.

9HIS HONOUR:

Yes.

10WITNESS:

I had anticipated - - -

11HIS HONOUR:

You are tied to your pleadings as I have already

12

told you on many, many occasions.

For the purpose of the

13

transcript, Mr Johnson is at ten minutes past ten,

14

leaving the witness box and is going to the Bar table to

15

give me a pithy opening.

16

expect it to be short.

Proceed Mr Johnson, but I

17<(THE WITNESS WITHDREW) 18MR JOHNSON: 19

can be.

Thank you, Your Honour.

I will be as concise as I

My counterclaim against Ms Cressy is - - -

20HIS HONOUR:

Just a moment I'll just get it.

Yes.

21MR JOHNSON:

To the effect that no relationship, whereby she

22

and I were domestic partners within the meaning of, now

23

repeal, Part 9 of the Transfer of Land Act - Property Law

24

Act, Your Honour.

25

contributions.

At no time did Ms Cressy make any

26HIS HONOUR:

Just a minute, yes.

27MR JOHNSON:

Within the meaning of those now repealed

28

provisions.

Of course I have operation because of the

29

date that the - - -

30HIS HONOUR:

All this is simply your defence.

31MR JOHNSON:

No, no, no.

1.LL:KG 09/12/08 2Cressy

FTR:1

94

DISCUSSION

1HIS HONOUR:

You said you wish to open your counterclaim.

2MR JOHNSON:

Your Honour, to the contrary what I say was that

3

we had a child support arrangement in place.

Most of the

4

time it was not administered through the child support

5

agency, it was a voluntary arrangement, where Ms Cressy

6

agreed to do certain things.

7

representations which, it appears, were at all material

8

times false to induce me to enter into that contract.

9

Specifically about her refraining from any

She made certain

10

prostitution type activities.

11

duration from, when she first went into occupancy of

12

2 Dorrington Street, Point Cook.

13

sums of moneys based on that agreement and those

14

representations.

15

been my legal obligation if the arrangement had been

16

administered through the Child Support Agency.

17

For the whole of the

I paid her considerable

Ten times, what now appears to have

During that time my generosity was not entirely

18

voluntary, it was coerced by certain conduct of

19

Ms Cressy, of the kind that's described in s.84 and 85 of

20

the Crimes Act, extortion Your Honour.

21

counterclaim against Ms Cressy.

22

That is my

Now, my counterclaim against Harold Andrews and

23

David William Hanlon and I'm conscious of the fact that

24

in the second proceedings, 9623 of 2008, which I did

25

submit even prior to the commencement of this hearing,

26

should be consolidated together.

27

proceeding against David William Hanlon and Harold

28

Andrews Pty Ltd is, in my humble but non experienced

29

opinion, substantially better pleaded Your Honour.

30 31

My counterclaim in that

I am concerned about not pre-litigating matters which will be litigated thoroughly in 9623 of 2008 when

1.LL:KG 09/12/08 2Cressy

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95

DISCUSSION

1

that comes to trial, with all 13 defendants by

2

counterclaim Your Honour.

3

is that Ms Cressy went, some time in 2007, from my

4

conversations with Ms Cressy I would put it at early 2007

5

or maybe in late 2006, and obtained certain advice which

6

she then formulated a plan.

7

that were raised by me in evidence in chief yesterday,

8

being filed in May 2007.

But the essence of my argument

This resulted in the caveats

9

On that occasion my counterclaim against Harold

10

Andrews and David William Hanlon is that they did not

11

bring to bear sufficient independent professional

12

judgment.

13

could easily have done, by simple recourse to publicly

14

available Titles Offices records, any of Ms Cressy's

15

claims.

16

sufficient to justify the claims that were written up in

17

those two caveats.

18

They did not independently investigate as they

They did not gather in a body of evidence,

They allowed themselves to become automated, just

19

simply writing up in those caveat instruments,

20

Ms Cressy's claims, without any of the independent

21

investigation one would expect of any professional, let

22

alone professionals who were officers of the court.

23

alone my lengthy relationship, which I may or may not be

24

allowed to now produce and explain in these proceedings,

25

but will certainly be material in the more recent

26

proceedings on foot.

Let

27

That of course, is a breach of duties of an officer

28

of the court, not to bring that independent investigation

29

to mind.

30

broad principles of abuse of process, of too many motive.

31HIS HONOUR:

I believe it also smacks of the narrow and

That may be so.

1.LL:KG 09/12/08 2Cressy

FTR:1

I can't see any of this pleaded. 96

DISCUSSION

1MR JOHNSON: 2

Because much of this did not develop until after

the - - -

3HIS HONOUR:

Well, you accept it's not pleaded.

4MR JOHNSON:

The bare bone facts are pleaded.

5HIS HONOUR:

No, they are not.

6

What you have pleaded - I've

told you before not to interrupt me.

7MR JOHNSON:

I'm sorry, Your Honour.

8HIS HONOUR:

What you have pleaded in Paragraphs 15 to 21 is a

9

claim against the plaintiff in respect of the caveat that

10

she lodged over your properties, and whilst that's not

11

entirely clear, as I understand it, it's a claim under a

12

section of the Tranfer of Land Act, Sections 23 to 26.

13

You make a claim against Harwood Andrews in respect of

14

their caveat which is AFO66328D.

15

Andrews caveat.

16

Andrews was implicated, Harwood Andrews or Mr Hanlon,

17

yes, both or one or other of them in the taking by the

18

plaintiff of your records on 16 November 2007.

19

That's the Harwood

And you also make a claim that Harwood

They're the claims you have pleaded.

They're the

20

claims those defendants have come here to defend, and

21

have been put on notice about.

22MR JOHNSON:

Your Honour, the claims that, the facts of which

23

I've pleaded in the amended defence and counter claim as

24

at 18 February 2008 were firstly in respect of that first

25

caveat lodged by Harwood Andrews which I believe was an

26

act of malfiesence, for the reasons I've just described.

27

Secondly involvement in the subpoenaing from the police

28

of documents taken from me unlawfully into federal

29

magistrate court proceedings in which the documents had

30

no relevance.

31

I've handed up as exhibits yesterday, have no relevance

1.LL:KG 09/12/08 2Cressy

Indeed the documents, the segment that

FTR:1

97

DISCUSSION

1

to these proceedings even.

2

any relevance of those documents and of the kind - again

3

the lack of independent analysis and application of

4

thought that one would expect of a professional, let

5

alone a legal professional, who was an affirmed - who are

6

officers of this court.

7MS SOFRONIOU:

There was no inspection of

I object, Your Honour.

This is opening being

8

used as submission, and submission being used as

9

speechifying, and may I suggest that Your Honour would be

10

benefited by hearing evidence where at least that

11

could - - -

12HIS HONOUR:

I would be, but I've noted the time.

I have

13

warned Mr Johnson time wasting, which all this has been,

14

will be the subject of no doubt an application for costs

15

against him at the end of the trial.

16

notice of this.

17

believe it is deliberate to waste the court's time to try

18

to intimidate me, to try and manipulate the court

19

processes, and I can tell you, Mr Johnson, it is not

20

assisting you.

21

times now.

22

using your intellect, which I regard quite large, to

23

assist me to understand the counter claims spelt out in

24

your counter claim, you may do so.

25

simply make speeches which wander way beyond the counter

26

claim and waste this court's valuable time, then I will

27

not permit it.

You've been put on

You've done it each occasion, and I

I have warned you as to that several

Now, if you wish to make a sensible opening,

But if you wish to

28MR JOHNSON:

Your Honour - - -

29HIS HONOUR:

You are not helping your case.

You are not

30

helping yourself, and you are wasting this court's very

31

valuable time.

1.LL:KG 09/12/08 2Cressy

I'm here to serve members of the public.

FTR:1

98

DISCUSSION

1

There are a number of members of the public who need help

2

from this court by having their cases heard, including

3

those who are mortally ill.

4

this sort of conduct continue.

5MR JOHNSON:

It's unconscionable that

Your Honour, I have immense respect and

6

appreciation for the services you provide to the

7

community.

8HIS HONOUR:

Yes.

9MR JOHNSON:

I also have a duty to myself to fully inform - - -

10HIS HONOUR:

Well, open the case as pleaded.

11MR JOHNSON:

And defend myself.

12HIS HONOUR:

I will give you one more chance to open your

13

pleaded case.

14

into that type of speech, then you're simply time

15

wasting.

16MR JOHNSON:

If you cease to do so and you again launch

You've now wasted 20 minutes today.

Your Honour, thank you, Your Honour.

My amended

17

defence and counter claim also refers to the replacement

18

caveat that was lodged by Harwood Andrews in March.

19HIS HONOUR:

I don't actually see it there.

20MR JOHNSON:

No, sir, forgive me, no, it won't, because I

21

wasn't even aware of it.

22HIS HONOUR:

Then how does it refer to it?

23MR JOHNSON:

You're quite right, Your Honour.

24HIS HONOUR:

You've just contradicted yourself.

25MR JOHNSON:

As I say, these - - -

26HIS HONOUR:

Well, you've just misled me as to what your

27

counter claim says.

28MR JOHNSON:

No, Your Honour, but forgive me.

It's

29

complicated.

30

caveat breaching s.91(4) of the Transfer of Land Act at

31

the time of the hearing before Mr Justice Whelan.

1.LL:KG 09/12/08 2Cressy

I was not even aware of that replacement

FTR:1

99

No,

DISCUSSION

1

Your Honour.

The plaintiff's statement of claim was

2

amended on Friday morning under Order 36.

3HIS HONOUR:

Yes.

4MR JOHNSON:

Order 36 - sorry, Rule 36.06 provides that where

5

pleadings are amended, the other party, the defendant has

6

30 days to plead to the amended pleading.

7HIS HONOUR:

Yes, you're entitled to plead to the amended

8

pleading.

9

counter claim, but do you wish to add to your counter

10

You can't simply at will (indistinct) your

claim a claim in respect of the replacement caveat?

11MR JOHNSON:

Yes, Your Honour, amongst other things, Your

12

Honour.

13

in the newer proceedings, 9623 of 2008.

14HIS HONOUR:

The things that are pleaded in the counter claim

I have not seen that, but it seems to me from what

15

you've been stating at the bar table is extraordinarily

16

broad.

17

of these issues have been ventilated so far.

18

certainly allow you, subject to hearing from Ms

19

Sofroniou, to add to your claim in respect of the Harwood

20

Andrews caveat, a claim relating to the replacement

21

caveat, which from recollection was lodged on title on

22

6 March 2008.

23MR JOHNSON:

We're now on the sixth day of the trial and none

Thank you, Your Honour.

I'd

May I draw Your Honour's

24

attention to Order 14, of course deals with the rules for

25

closure of the pleadings.

26HIS HONOUR:

Well, tell me this.

If you seek to amend your

27

counter claim beyond that which has so far been pleaded,

28

plus to add in the replacement caveat, you have to put

29

before me a document which you seek leave to rely on.

30MR JOHNSON: 31

And I don't believe there's capacity in these

proceedings to do that.

1.LL:KG 09/12/08 2Cressy

FTR:1

But Order 14.09, Your Honour, 100

DISCUSSION

1

has - - -

2HIS HONOUR: 3

How can I know what application you're making

unless you put before me a document?

4MR JOHNSON:

Order 14 Point 9 Your Honour does allow for a

5

matter to proceed to trial without pleadings and there

6

are pleadings but they're in the other Proceedings 9263

7

of 2008 and given I consistently maintain an estimated

8

trial duration of a minimum three to four weeks - - -

9HIS HONOUR:

Well no such order has been made.

I certainly

10

would not in a case like this where you're making wild

11

allegations against the other side, proceed without

12

pleadings.

13

points of claim are ordered or some other alternative

14

procedure by which parties have proper notice of the

15

claims.

16MR JOHNSON: 17

Yes I suggest you now go back into the witness

Thank you Your Honour.

That was my proposal,

thank you Your Honour.

22MR DEVRIES: 23

I acknowledge - - -

box.

20MR JOHNSON: 21

I'm indebted to Your Honour for allowing me to

outline the nature of my claims.

18HIS HONOUR: 19

Generally that is done where for example

If I can just observe - I'll be very quick Your

Honour.

24HIS HONOUR:

Yes.

25MR DEVRIES:

In respect to the opening that deals with my

26

client, Mr Johnson has gone beyond his scope.

27HIS HONOUR:

I have made the point repetitively that all

28

parties will be tied to their pleadings.

29

Mr Alfred Thompson outside?

30MR JOHNSON: 31

There's a

I am expecting two witnesses Your Honour regarding

this process served on Mr Peter Cockram.

1.LL:KG 09/12/08 2Cressy

FTR:1

101

DISCUSSION

1HIS HONOUR:

Does he relate to that issue?

2MR JOHNSON:

He is the principal of the AA Process Servers.

3HIS HONOUR:

All right well we'll wait to the other one arrives

4

and we'll deal with that issue.

5MR JOHNSON:

Thank you Your Honour.

6HIS HONOUR:

Now we'll now hear your evidence - - -

7MR JOHNSON:

Yes.

8HIS HONOUR:

- - - and I note just simply for the purpose of

9

the transcript it's 10.22.

10MR JOHNSON:

Thank you Your Honour.

There is a possibility

11

that the - Mr Steve Wittekind who actually served the

12

process may not be appearing this morning but Mr Thompson

13

will be able to explain that.

14HIS HONOUR:

It's now 10.23.

15MR JOHNSON:

Yes Your Honour.

16HIS HONOUR:

Are you going to give me some evidence today?

17MR JOHNSON:

I am Your Honour but I'm just wondering whether we

18

might deal with the Peter Cockram matter first because

19

it's likely it's not - although I am hopeful of two

20

witnesses - - -

21HIS HONOUR: 22

Mr Wittekind was the person who served the

subpoena.

23MR JOHNSON:

Yes Your Honour.

24HIS HONOUR:

He's the person I need to hear from in relation to

25

service of process money.

26MR JOHNSON:

Yes Your Honour.

27HIS HONOUR:

Because if the conduct money was not served then

28

the person served has no obligation to comply with the

29

subpoena.

That's the Rule 4206.

30MR JOHNSON:

Yes Your Honour.

31HIS HONOUR:

So that is unfortunately a prerequisite to me

1.LL:KG 09/12/08 2Cressy

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102

DISCUSSION

1

taking any further action to force Mr Cockram to come to

2

court.

3MR JOHNSON: 4

Both myself and Mr Thompson can give evidence that

Mr Wittekind was given the conduct money to hand over.

5HIS HONOUR:

Well you're not calling Mr Wittekind this morning?

6MR JOHNSON:

I will call him if he turns up but he was very

7

hard to catch yesterday.

8

evening to try to insist that he appear in court this

9

morning.

10HIS HONOUR:

Mr Thompson chased him all

Your conduct is - I won't say it any further but

11

it is far below what I would expect of a person 18 years

12

experience, in the way you have conducted yourself to

13

this court.

14

to say about the conduct money?

15

who?

All right, well call Mr - what have you got You say you gave it to

16MR JOHNSON:

To Mr Thompson.

17HIS HONOUR:

Yes, how much?

18MR JOHNSON:

I believe on that instance it was $10.

There's a

19

photocopy smudge of it on the - photocopies of the

20

affidavit - - -

21HIS HONOUR:

All right, call Mr Thompson.

22MR JOHNSON:

I'm indebted Your Honour.

23
It is your witness, Mr Johnson

25MR JOHNSON:

Thank you Your Honour.

Mr Thompson would you

26

advise His Honour of your occupation?---I beg your

27

pardon?

28Would you tell His Honour your occupation please?---Yes I run a 29

process serving business.

30Yes Mr Thompson you're the principal of AA Process Servers? 31

---Yes, the manager and the director.

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DISCUSSION

1Thank you Mr Thompson.

And you have an extensive practice

2

servicing subpoenas for clients all around the world is

3

that right?---Yes.

4HIS HONOUR:

I don't think that's relevant.

5MR JOHNSON:

It goes to qualification - - -

6HIS HONOUR:

What is at issue is the service of the subpoena in

7

this case.

8MR JOHNSON: 9

Mr Thompson I met with you on Saturday 22 November

did I not?---Yes.

10And I handed to you nine subpoenas for you to organise urgent 11

service for me?---Yes.

12I gave you cash conduct money in respect of each of them? 13

---Yes.

14Be it $10 or $20?---(No audible response.) 15Thank you Mr Thompson.

In respect of one of those subpoenas

16

addressed to a Mr Peter Cockram at Park Orchards can you

17

recall how much conduct money I handed to you along with

18

the documentation?---In, in this particular case,

19

Cockram, $10.

20Thank you Mr Thompson.

You then handed the process, the

21

subpoena plus my covering letter of service?---Yes I

22

affixed the $10 with a clip to the document to be served.

23And you gave it to one of your agents did you not?---Yes. 24And that agent's name was?---Steven Wittekind 25

W-i-t-t-e-k-i-n-d.

26Thank you Mr Thompson.

And Mr Wittekind reported to you on the

27

24th, I believe it was, I don't have a copy of the

28

documents in front of me.

29

box Your Honour.

30

service?---Yes he sent me an affidavit of service.

I think they're in the witness

24 November that he (indistinct)

31Did Mr Wittekind prepare that or did you prepare that?---I 1.LL:KG 09/12/08 2Cressy

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104

DISCUSSION

1

prepared it.

2Yes?---Prepared nine of them in a hurry. 3The affidavit of service doesn't include a statement by the 4

deponent, Mr Wittekind that he provided $10 conduct

5

money.

6

on the first place but I can't understand why he didn't

7

write it on and I haven't been able to speak to him since

8

this came up.

9HIS HONOUR:

Can you explain why not?---Well I didn't put it

Is it normal practice that if conduct money is

10

served with a subpoena that the process server puts that

11

fact on his affidavit as service?---That's correct.

12Yes, I must say that is my experience. 13MR JOHNSON:

When we met on 22 November I asked you very much

14

the same question didn't I?---I'm having trouble hearing

15

you.

16When we met on Saturday 22 November I did ask you about the 17

conduct money?---Yes.

18And whether I needed to prepare the affidavit of service or you 19

would, didn't I?---Well, it was too late for you to do

20

it, I said we would have to do it to get it in the mail.

21Don't you normally do that as normal practice?---I beg your 22

pardon?

23Don't you normally prepare the affidavit of service?---No. 24HIS HONOUR:

I think that's a bit irrelevant.

Mr Thompson, we

25

need to hear from Mr Wittekind because if Mr Cochrane is

26

to be brought to court by coercive process that needs to

27

be done quickly.

28

evidence that the conduct money has been served because

29

if it has not been served then there was no obligation

30

for Cochrane to come to court.

31

of Mr Wittekind quickly?

1.LL:KG 09/12/08 2Cressy

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I need to be satisfied on the proper

105

Are you able to get hold

DISCUSSION

1MR DEVRIES:

Sir, there might be a more fundamental problem for

2

Mr Johnson and that is that the subpoena is addressed to

3

a non-existent person and the person he refers to is

4

referred to in a lot of other documents as Mr Cochrane,

5

spelt differently.

6HIS HONOUR: 7

I noticed the spelling differential.

The person

it is addressed to is C-o-c-k-r-a-m.

8MR JOHNSON:

That is the correct spelling Your Honour.

9MR DEVRIES:

But the affidavit service talks about a

10

"Cochrane".

11HIS HONOUR:

I know, I notice the difference.

It seems to me

12

we are going to have to have Mr Wittekind here, in fact

13

the affidavit of service is deficient in a number of

14

regards.

15

He doesn't tell us whether he served it in the morning or

16

afternoon.

Now, that's all probably a little bit less

17

important.

It mis-describes the name of the person on

18

whom it was served because it mis-spells it, so they

19

would have to understand it was the same person.

20

more importantly and the most important issue for me is

21

the service of the conduct money because the rules

22

preclude me doing anything unless that was served with

23

it.

24

understanding of normal practice, that is if a process

25

server serves conduct money you normally see that fact

26

opposed on the affidavit of service.

27

brought - - - ?---Well, I tried to phone him last night

28

and again this morning and the phone goes to voicemail.

It's impossible to tell the date it was sworn.

But

From what you tell me, and it coincides with my

29MR JOHNSON:

Can Mr Wittekind be

You did speak with his wife?---I spoke to - well,

30

his wife or his partner yesterday and she asked what was

31

the problem, he wasn't in and she would get him to ring

1.LL:KG 09/12/08 2Cressy

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106

DISCUSSION

1

me back.

2

was never a call back.

3HIS HONOUR:

I had the phone available all night and there

There is not much I can do on this unfortunately,

4

but what I would ask you to do is to contact his partner

5

again and explain to her it is now a matter of urgency

6

that he establishes contact, comes to the court to

7

properly depose to service of this subpoena?---The only

8

way would be to go out there because they are not

9

answering the phone.

She is not either.

10Would you be so good as to do that?---Wheelers Hill. 11Well, someone has got to do it?---Yes, right, well I'll go out. 12MR JOHNSON:

Thank you, Mr Thompson.

13HIS HONOUR:

There are certain obligations to this court by

14

persons who serve the process and I would expect them to

15

be properly complied with?---I couldn't quite hear that.

16MR DEVRIES: 17

He couldn't hear you Your Honour?---I couldn’t

hear that.

18HIS HONOUR:

Thank you Mr Thompson.

19MR JOHNSON:

May I speak briefly with Mr Thompson?

20HIS HONOUR:

You may, yes.

21MR JOHNSON:

Some instructions including - thank you.

Yes, we

22

can speak in open court.

Mr Thompson, if you would go

23

out to Wheelers Hill and seek to secure Mr Wittekind to

24

come in?---I still can't hear you.

25If you would drive out to Wheeler's Hill please and seek to 26

secure Mr Wittekind to come in to give evidence?---Yes.

27And whatever out of pocket or additional fees well we will have 28

to talk about that because quite clearly I am responsible

29

for those?---Yes.

30Thank you Mr Thompson. 31HIS HONOUR:

Thank you very much Mr Thompson.

1.LL:KG 09/12/08 2Cressy

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107

DISCUSSION

1<(THE WITNESS WITHDREW) 2
Now, 10.32, we will try and get some evidence from

4

you?---Yes, Your Honour.

Your Honour, in my evidence

5

yesterday afternoon I referred to Mr David Hanlon at

6

Harwood Andrews during October.

7

make a copy of those now.

I do have copies or I'll

8Yes, you may tender them?---The first is a letter or a fax of 9

two pages dated 25 October 2007.

10Thank you. 11 12#EXHIBIT 31 13 14

Faxed letter from the defendant to Mr David Hanlon, Harwood Andrews Pty Ltd, dated 25/10/07.

15MS SOFRONIOU: 16HIS HONOUR:

May I see it? Yes, certainly?---this was part of my attention to

17

communicate with Mr Hanlon, attempts that have been going

18

on - initially started in July 2007 to try and resolve

19

this without the need for expensive protracted legal

20

proceedings.

21

letter.

22MS SOFRONIOU:

I did not receive any response to that

In response to it, Your Honour, may I make the

23

same objection as earlier that's supported in Your

24

Honour's ruling of earlier, that the evidence not be

25

received as the truth of it's contents.

26HIS HONOUR: 27

Your Honour, I assert as part of my evidence, the

truth of it's contents.

30HIS HONOUR: 31

So I received the letter for the fax of it's

communication, rather than who it's gone to.

28WITNESS: 29

Yes.

I don't accept that as assertion?---I'm not sure

what - - -

32You can't verify a whole letter in that way?---I'm not sure 33

what we just said to each other Your Honour.

1.LL:KG 09/12/08 2Cressy

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108

DISCUSSION

1Let's just move to the next correspondence, is a better way to 2

do it?---Thank you.

On the same basis, the next

3

correspondence a fax, the next day 26 October 2007.

4

included my request to conduct an owners inspection of

5

the house at Altona, following an incident that occurred

This

6 about a month earlier. 7 8#EXHIBIT 32 A facsimile letter from the defendant to 9 Mr David Hanlon, Harold Andrews Pty Ltd, 10 26 October 2007 11MS SOFRONIOU: 12HIS HONOUR: 13WITNESS:

I make the same objection. Yes, I understand that.

Your Honour, perhaps if I tender each of these

14

correspondences and then I'll come back and describe the

15

contents - evidence, is that - - -

16HIS HONOUR:

I understand that what they say is what they say?

17

---On that basis, is it part of my case that I'm

18

asserting the truth of the contents?

19Can I have a look at that letter thanks Mr Richards?---It's the 20

bit I don't understand Your Honour.

21You make a lot of factual allegations in the letters?---That's 22

right.

23The letters don't prove the facts contained in the letters? 24

---No, Your Honour.

25For example, one letter says that two police divisional vans 26

attended following the 000 call.

The tendering of the

27

letter doesn't prove that fact?---No, and it's hearsay,

28

Your Honour.

29It's hearsay, exactly?---Yes. 30That's the point being made by Ms Sofroniou, that is being 31

tendered, as I understand it, by you for a different

32

purpose, that is to prove the fact that you did make a

33

communication to Mr Hanlon about a topic on that date?

1.LL:KG 09/12/08 2Cressy

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DISCUSSION

1

---Yes, Your Honour, thank you.

2That's the point Ms Sofroniou's making.

I think it's a point

3

you're seeking to make and that's the basis on which I'm

4

receiving these letters, do you follow?---Yes, I follow,

5

Your Honour, thank you, I'm grateful.

6

received no response from Mr Hanlon or Harold Andrews to

7

that letter.

8

that I prepared on the 26th, but changed the date and

9

sent it on the 29th.

10

The next letter in sequence was the one

That is already in evidence

Your Honour as Exhibit 19, I think it is.

11HIS HONOUR: 12

Likewise I

I think it's in twice as exhibits, isn't it?

---First partially, by the plaintiff and - - -

13Exhibit A and you put in - is this the fax with four pages 14

attached to it?---Yes, Your Honour.

15Exhibit 15?---Exhibit 15, thank you, Your Honour.

Once again I

16

received no response from Mr Hanlon or Howard Andrews to

17

that letter.

18

fourth letter in the sequence Your Honour, a facsimile

19

from myself to Mr Hanlon and Harold Andrews, dated

20

31 October 2007.

I'll just make sure of the sequence.

The

Again, I received no response from

21 Mr Hanlon or Harold Andrews to that letter. 22 23#EXHIBIT 33 Faxed letter from the defendant to Mr 24 David Hanlon, Harold Andrews Pty Ltd, 31 25 October 1997 26MS SOFRONIOU: 27WITNESS:

May I see it please Your Honour?

Next Your Honour, we're into the current year.

A

28

facsimile I sent to Mr Hanlon of Harold Andrews,

29

13 January 2008, advising of my actions in selling three

30 of my properties and a fourth one was on the market. 31 32#EXHIBIT 34 Faxed letter from the defendant to Mr 33 David Hanlon, Harold Andrews Pty Ltd, 13 34 January 2008 1.LL:KG 09/12/08 2Cressy

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DISCUSSION

1HIS HONOUR:

Do you wish to see that to?

2MS SOFRONIOU: 3

If I may Your Honour.

Your Honour, could I just

cover it as it were a blanket - - -

4HIS HONOUR:

Yes.

5MS SOFRONIOU:

- - - objection to say that with all of these

6

exhibits they might fall under Your Honour's ruling.

7

Because a lot of assertion was made here.

8HIS HONOUR: 9 10

Well, I follow that.

They are all being tendered

simply for the fact of the letter being sent, not for the truth of their content.

11MS SOFRONIOU:

Thank you, Your Honour, I hadn't understood them

12

to be tendered on that basis but I am - that Your Honour

13

is receiving them on that basis.

14HIS HONOUR:

No, I am receiving them all on the same basis.

15MS SOFRONIOU: 16HIS HONOUR:

Thank you, Your Honour. No, thank you, Ms Sofroniou?---Your Honour, also

17

on the basis that I received no communication, no

18

response, no reply from Mr Harwood Andrews either, so

19

they are tendered on those two bases, sent and ignored.

20Yes?---The next in sequence is a letter of 11 pages that I sent 21

to Challenger Mortgage Management, this may have already

22

been exhibited as part of the plaintiff's case.

23

Certainly Mr Devries referred to it in his opening of the

24

plaintiff's case.

25

evidence before Your Honour.

I am not sure whether it is in

26There are only two exhibits. 27

No, I don't think there is?---OK,

it formed part of the plaintiff's case in the opening.

28Well, it doesn't matter, let us tender it now?---Thank you, 29

Your Honour.

30

contract of sale I signed for the Altona property in late

31

December 2007 and a discharge authority to try to mosey

1.LL:KG 09/12/08 2Cressy

The attachments are relating to the

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111

DISCUSSION

1

that transaction along to settlement.

2Who were Challenger, were they the mortgagor or mortgagee? 3

---It's a securitised mortgage package.

Challenger

4

Mortgage Management were the mangers I dealt with.

5

mortgagee is actually the plaintiff in proceedings 9263

6

of 2008.

7

change as well.

The

Equity Fiduciary Services, here was a name

8Anyway you sent a letter to Challenger, do you wish to tender 9

that?---I do, Your Honour, yes.

10If you provide it to Mr Richards I will look at it and then I 11 will receive it as an exhibit?---Thank you, Your Honour. 12 13#EXHIBIT 35 Letter from the plaintiff to Challenger 14 Mortgage Management, dated 21/01/08 15 together with attachments relating to 166 16 Queen Street, Altona. 17MS SOFRONIOU: 18HIS HONOUR:

If I may see it Your Honour. Yes?---Your Honour, that was one of the exhibits

19

to Mr David Hanlon's sworn and unfiled affidavit that my

20

learned friend provided to me on Tuesday.

21

Honour.

22

from the same source, that sworn but unfiled affidavit of

23

Mr Hanlon of last week.

24

yes.

25

I recognise it as 14 March 2008 from myself to my good

26

friend, Richard, the current chairman of Harwood Andrews.

27

That is a five page fax sent on 14 March 2008.

28Thank you. 29

Thank you Your

I have one more letter which came back to me

I am just not sure - beautiful,

This is a letter of - the date is hard to read but

What is the date of that, I can't read it?---It is

14 March.

30Thank you.

Copy letter of defendant to Mr Richard Andrews of

31

Harwood Andrews, dated 14 March 2008?---And a one page

32

attachment as well, Your Honour.

33Together with a one page attachment thereto?---Which was 1.LL:KG 09/12/08 2Cressy

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112

DISCUSSION

1

Richard's fax to me of I think the previous day or maybe

2

the same day.

3Being the facsimile from Mr Anderson to the defendant of 4

5 March 2008, those documents will be Exhibit 36?---Thank

5

you, Your Honour.

6MR DEVRIES:

So what date was that first document given?

7HIS HONOUR:

Well, Mr - I can't read it because it is a

8

photocopy.

9MS SOFRONIOU: 10

If we can see it, Your Honour, we may have a

cleaner copy.

11HIS HONOUR:

Yes, what I will do is just put a little - - -

12MR DEVRIES:

I believe it is 6 March and it couldn’t possibly

13

be the 14th of the facsimiles and a reply and it is

14

dated - - -

15HIS HONOUR:

I agree with that.

Yes, because your - - - ?

16

---But is the reply dated the 14th?

It took me a while

17

to identify and respond because there was quite a bit

18

happening at that stage, Your Honour, in the proceedings.

19You say you sent it on the 14th, did you?---Prepared it and 20

sent it on the 14th, yes.

21You say this:

"I refer to your facsimile to me of late

22

yesterday afternoon and that facsimile to which you are

23

responding was dated 5 March 2008."

24

before 6 March generally.

25MS SOFRONIOU: 26

5 March is the day

Speaking about the same letter, Your Honour, I

think I have a clearer copy that shows the number as "6".

27HIS HONOUR:

As the date, thank you.

28

Shall we use that an exhibit.

29

Mr - - -

30MS SOFRONIOU: 31MR DEVRIES:

Do you wish to see that? If that could be shown to

I will give you the best copy. Your Honour, I ask Your Honour to disregard

1.LL:KG 09/12/08 2Cressy

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113

DISCUSSION

1

paragraph 5 of that document.

2

attempt by Mr Johnson to do what he has been trying to do

3

with his affidavit.

4HIS HONOUR:

This is a thinly disguised

Mr Devries, can I cut this off by saying already

5

Ms Sofroniou has highlighted the point, agreed to by

6

Mr Johnson and hopefully agreed to by you, that these

7

documents are not tendered as the truth of the fact but

8

simply for the fact that the letter was sent.

9

don't have to go over that path again.

10MR DEVRIES:

Now, we

Sorry, Your Honour, with respect I agree with

11

that, I'm not going behind that, but this is a thinly

12

disguised attempt to make some very personal, very nasty

13

criticism of my client and that's one reason they're put

14

in and I ask Your Honour to disregard the vile accusation

15

that is made against my client.

16HIS HONOUR: 17

Mr Devries, I have already told you why it's being

admitted.

18MR DEVRIES:

May it please Your Honour.

19HIS HONOUR:

Is that the same letter you are seeking to tender,

20

because it seems to be - I haven't seen it but

21

apparently - - - ?---It does look like it's the date of

22

6 March, Your Honour.

23

but it is 6 March Your Honour.

There were many correspondences,

24We will get it from Ms Sofroniou?---Thank you. 25 26#EXHIBIT 36 Copy letter of the defendant to Mr 27 Richard Anderson of Harwood Andrews dated 28 6/03/08, together with attached copy 29 facsimile by Mr Anderson to the defendant 30 dated 5/03/08. 31Is that the whole of the exhibit? 32

it?

33MS SOFRONIOU: 34

That is the whole exhibit is

It is, Your Honour.

Your Honour might disregard

the numbered pages in the top right hand corner that I

1.LL:KG 09/12/08 2Cressy

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114

DISCUSSION

1

have put in.

2HIS HONOUR: 3

No, that's all right, no, I understand that.

Thank you very much.

4MS SOFRONIOU:

Yes.

5HIS HONOUR:

Or are you now - - -

6MS SOFRONIOU: 7

Do we keep that as an exhibit?

No, no, no, I can work on other copies, thank

you.

8HIS HONOUR:

Have you got other copies?

9MS SOFRONIOU:

Yes, thank you?---Thank you, Your Honour, what I

10

wished to establish by those correspondence was that

11

there was a lot of earnest attempts by me to inform

12

Mr Hanlon and Harwood Andrews of facts that were relevant

13

to them as advisers and assisters to Ms Cressy with her

14

caveat and her legal proceedings which were on foot at

15

that stage, they issued in November, I believe, 2007, 16

16

or 17 November 2007 the statement of claim was dated.

17

did not - I felt hobbled because of my relationship with

18

Harwood Andrews, my relationship with Barwon Water and

19

the fact that Geelong is a very small, close community,

20

particularly in the business environment.

21

in any way, shape or form for any information about Ms

22

Cressy's prostitution activities or the circumstances

23

that we met to be put in open court documents.

24

amended defence and counter-claim of 18 February reflects

25

that.

I

I did not want

My

I was hobbled in - - -

26What is the relevance of this to the claim of the counter27

claim.

What you wanted to do in your court pleadings is

28

a matter entirely between you and your Maker, now let us

29

proceed with the issues?---Thank you, Your Honour.

30

seeking to organise and had been for the second half of

31

2007 - seeking to sit down with Ms Cressy's legal

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115

I was

DISCUSSION

1

representatives, glad that she had them because a long

2

history of impossible to reach any agreement with

3

Ms Cressy on any material issued.

4

of independent legal counsel.

5

external legal counsel were acting for her.

6

concerned about the possible disclosure of a matter that

7

I considered distasteful and harmful to all concerned,

8

but nonetheless I thought that created an opportunity for

9

meaningful discussion.

She needed the support

I was concerned that my I was

10Try to come to the point, Mr Johnson?---I tried and tried and 11

tried to negotiate those discussions with Mr Hanlon as -

12

and Harwood Andrews, as representing Ms Cressy and was

13

constantly denied and refused, even to the point that

14

Mr Hanlon wouldn't meet with me because his barrister

15

instructing the case Dr Richard Ingleby was on holiday.

16

It appears Dr Richard Ingleby was on holiday for about

17

six or seven weeks, so even Mr Hanlon and I couldn’t sit

18

down - Mr Hanlon being a - having several years more

19

maturity as a legal practitioner than I, but

20

notwithstanding he couldn’t sit down across a table and

21

discuss it with me.

22

discreetly - so a number of those letters are headed

23

"Private confidential," Privacy Act applies, and I

24

believe that was quite appropriate that I was making

25

confidential disclosures.

26

Ms Cressy would react to the fact that I was disclosing

27

that information about her and I was concerned that it

28

was putting her children, including my Illyana, at risk

29

given events that had happened in the previous couple of

30

months at the Cressy household, that I only found out

31

about second and third hand through the children and the

1.LL:KG 09/12/08 2Cressy

FTR:1

I wished to point out to them

I was concerned about how

116

DISCUSSION

1

lady, Ms Dek-Fabrikant, who I didn't even know who Lara

2

was when the children were telling me about Lara helping

3

them this, Lara helping them - who's Lara?

4This has got absolutely nothing to do with the issues of this 5

case?---It goes to the - - -

6You seem to be becoming a serial offender today in seeing how 7

far you can waste the court's time.

8

issues?---It goes to the maleficence point, Your Honour,

9

the failure of professionals to exercise an independent

10

Now stick to the

mind and their willingness to allow - - -

11That has not been pleaded?--- - - - them to become automated. 12

It is pleaded in 9623 of 2008 Your Honour.

13It is not pleaded in this proceeding, for the umpteenth time? 14

---I explained Your Honour why - - -

15I have told you that - - - ?--- - - - it has not been pleaded 16

in these proceedings.

17- - - you are tied to your pleadings just as the other parties 18

are.

There are parts of those pleadings you need to

19

address as I have said to you a number of times?---Thank

20

you, Your Honour, this is extremely difficult and I am

21

trying my best not to make it anymore difficult than

22

necessary for Your Honour, I really am trying my best.

23

I'm conscious that these issues are going to be litigated

24

at large on more expansive pleadings in 9623 of 2008.

25

from my own perspective I don't want to be pre-litigating

26

them here, in case that raises a - re-litigating, is it

27

res judicata in respect of the other proceedings.

28Mr Johnson, I'm losing my voice asking you to be relevant.

So

If

29

you have issues that you know you have pleaded in the

30

counter-claim you are at liberty to address those issues

31

by admissible evidence.

1.LL:KG 09/12/08 2Cressy

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There are also some matters 117

DISCUSSION

1

which I flagged with you yesterday that you need to deal

2

with in relation to the plaintiff's claim against you?

3

---Yes, Your Honour.

4You are not helping your case at all in either respect by 5

trying constantly to stretch the boundaries.

I have been

6

involved in litigation all my professional life, I know

7

where the boundaries of litigation are and if you try it

8

on me you will lose that type of fight?---Your Honour,

9

I - - -

10You will not wear me down by constantly trying to go beyond the 11

pleadings?---Your Honour, I - - -

12Now, let's stop this arm wrestle.

There are issues you need to

13

address.

One of the issues which I flagged with you

14

yesterday is the evidence of Ms Cressy concerning the

15

work she said she did at some of the houses.

16

have addressed some of that building not all?---Yes, Your

17

Honour.

Now, you

18I flagged that with you and you said you would come back to 19

that.

That is just one topic you need to address in your

20

own interests?---Yes, Your Honour.

21Rather than try to continue to play games with this court? 22

---Your Honour, I apologise, I am not seeking to play

23

games.

In my legal experience - - -

24That is not my perception?---I have no professional experience 25

of court room procedure or litigation unlike yourself.

26For a person who keeps protesting that you show a lot of skill? 27

---But no training, Your Honour.

28And ability as an advocate when you turn your mind to it. 29

let us stay on song.

30

wish to give in relation to your counter-claim as

31

pleaded?---I'm not sure, Your Honour.

1.LL:KG 09/12/08 2Cressy

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Now,

Is there any further evidence you

118

My thinking is it DISCUSSION

1

best I proceed with wrapping up my evidence in respect of

2

these proceedings and trust that the concerns I have

3

raised I can raise, with respect, Your Honour, if need be

4

on appeal or definitely in the context of the better

5

pleaded proceedings 9263 of 2008.

6

two matters not being heard conjointly as I made clear at

7

the outset, and it's also my concern we proceeded to

8

trial based on a - with respect, crazy estimate of two

9

days when I have been saying all along since first issue

It is my concern the

10

of pleadings, no it's three to four weeks, Your Honour,

11

and I think I have been vindicated in my estimate.

12

will return to the matters Your Honour has asked me to

13

address.

I

Your Honour, should I be - - -

14While we are on the caveat properties, are you able to tell me 15

what is the current position of the houses?

If we go

16

through the various properties, we have established that

17

the Altona property is sold by mortgagee in November?

18

---According to The Herald Sun, yes Your Honour.

19The Lisa Court property, that has been sold?---That was sold, 20

the caveat was lifted by ms Cressy, I believe on advice

21

by Harwood Andrews and they attended settlement, that was

22

in I think late January 2008.

23Yes.

Was that by mortgage sale?---No, no, I sold that one Your

24

Honour.

25Were there any proceeds left over from sale?---There was a 26

sophisticated mortgage structure because they were twins,

27

Hawkhurst and Lisa Court, they each had a five year fixed

28

rate loan.

29

sorry, once the house was built it converted over.

30

was a floating variable rate loan attached to both of

31

them.

The initial acquisition loan.

No, sorry, There

AMP insisted that all of the proceeds from the

1.LL:KG 09/12/08 2Cressy

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119

DISCUSSION

1

sale of Lisa Court be used to retire AMP debt.

2

in the circumstances.

3

first - - -

Sensible

So what happened was the

4So any residue would have gone against the mortgage against 5

Hawkhurst, is that what you're putting to me?---That's

6

right, Your Honour, the first and second mortgage of Lisa

7

Court - - -

8So there has been no residue received because any residue has 9

been applied to that mortgage?---Yes, and so the

10

remaining fixed rate mortgage against Hawkhurst was

11

reduced from about $138,000 to about $111,000.

12

Andrews were involved in that process.

13

submission that they had a level of information about

14

that borrowing structure.

15Well let's not worry about them.

Harwood

It is my

I'm just trying to get it

16

from you.

You say the mortgages were just down to about

17

$111,000?---Yes, yes and what happened I had to tip in

18

about $800 cash.

19Dorrington Street, that's the - - -?---Dorrington Street is 20

under orders of Mr Justice Cavanough and

21

Mr Justice Hansen of 20 June, 14 July this year.

22Is that (indistinct) - - -?---I lost - I'd been dispossessed. 23

I was evicted from the property.

24

notice of the court orders, so half of my archived legal

25

practice was simply left there.

26

Saturday and the locks had been changed.

27

later I was given a copy of the orders by my mortgagee,

28

whose not even a party in these proceedings.

29

evicted, I was also gagged from talking to the mortgagee,

30

which was my concern, I raised on the first morning of

31

the trial, Your Honour.

1.LL:KG 09/12/08 2Cressy

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120

I wasn't given proper

I turned up on a Four weeks

I was

DISCUSSION

1Yes, that's not the question I asked you?---I don't - I don't 2

know.

3In your letter to Mr Hanlon of 13 January 2008, say that 4

Dorrington Street was sold, was settlement due

5

11 March 2008?---Yes, Your Honour.

6Did that settle and proceed?---No, it didn't.

They were sales

7

at prices pre the early 2008 interest rate hike and

8

market collapse and pre the global financial crisis.

9You don't know the status of Dorrington Street at the moment? 10

---No, I don't.

I've been dispossessed of it.

I can say

11

that those purchases, there were separate purchasers for

12

Dorrington and Inverloch, but they were related badly.

13

They loved the idea of buying it as a double block.

14Do you know what's happened to Inverloch?---The same story 15

Your Honour.

Exactly the same story as for - as late as

16

August this year, the purchasers were still hanging and

17

hoping to buy, even at the contract prices from January

18

this year, which I thought was extraordinary.

19

letters I'd like to hand up, just confirming that point,

20

if I may.

I have

21But you don't know what it's current status is?---I kicked off 22

the properties by Justice Cavanough, Your Honour.

I was

23

kicked out by Justice Cavanough.

24

powers as a mortgagee by Justice Hansen, even though

25

Justice Cavanough refused to make orders to that effect

26

on 20 June because it was just commercial nonsense.

Ms Cressy was given

27According to my (indistinct) I've been told of some matters and 28

I think I've received some evidence, I'm just trying to

29

put it together.

30

been no change in Gibson Street since I took possession.

Gibson Street you still own?---There's

31And Endeavour Drive, Torquay?---Endeavour Drive, there's been 1.LL:KG 09/12/08 2Cressy

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121

DISCUSSION

1

no change in that since I took possession in December

2

last year.

3And Hawkhurst?---Hawkhurst, no change since I took title in 4

June or July 2003.

There are lots of caveats on lots of

5

properties by lots of people in court.

6Do you know the level of debt in respect to those three 7

properties?---The Hawkhurst debt I think is probably now

8

about 120,000, 111 principal, about six or seven in

9

accrued mortgage payments.

10Yes, Gibson?---Gibson Street - - 11Gibson and Torquay are now part of package, aren't they?---No, 12

Your Honour.

13By how much did sale to Gibson Street?---Gibson Street I 14

purchased for 397,500 a year ago.

There's lots of

15

hearsay reports in the Herald Sun of - cause of the

16

global financial crisis.

17

in Torquay on the market as this time last year.

Four times as many properties

18How much debts over Gibson Street?---It was a 90 or maybe 95 19

per cent financing Your Honour.

20Do you know what the level of debt of - - -?---Including 21

arrears, probably matches the 397,500 I paid.

22It's close to $400,000 debt over it?---Yes, and the value may 23

or may not be $400,000, probably not.

24There's no evidence as to it's value at all?---No. 25Torquay?---That was Endeavour Drive, Torquay we were talking 26

Your Honour, wasn't it?

27No, it's Gibson Street?---I'm sorry, too many properties. 28Let's go back. 29

You say Torquay was purchased for 397,500?

---Yes, Your Honour.

30It's got a debt of about 400 over it?---Yes, Your Honour. 31Gibson Street?---If I may refresh on Exhibit No.15, that's got 1.LL:KG 09/12/08 2Cressy

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122

DISCUSSION

1

all the details of what I purchased it for in the

2

attachment.

3Yes, I'm more interested in the debt level.

How much debt's on

4

Gibson Street, do you know?---The debt's on it is huge

5

and the value has plummeted, that's what I'm told.

6

Probably on a sale, the next sale process would be minus

7

100 or minus 150,000.

8Do you know how much debts over it?---Could be 540,000 9 10

principal.

Nine months of mortgage, about another 27,000

in arrears in mortgage.

11In interest?---Yes, interest only mortgage Your Honour. 12

The

value could be anywhere - - -

13You're not a qualified valuer, there's no evidence as to it's 14

value?---On a realisation by a mortgagee or otherwise,

15

you're probably looking at a shortfall of 150,000.

16

the global financial crisis, Your Honour.

It's

17I don't know whether I've diverted you or not, but you were 18

about to take to something else now?---I was - sorry, I

19

was going to ask whether I should, at this stage be

20

putting in evidence of damage and loss as well as - - -

21Yes, you need to prove you've claimed damages, if you can prove 22

damages?---Thank you, Your Honour.

23

damages is that - I can quote magna carta on this, but

24

I'll do that in submissions.

25

wrongfully taken out of my control.

26

of the properties, particularly Altona where there was

27

significant equity.

28

December contract, which is an exhibit in evidence and

29

gone through, the moneys would have been paid into court

30

from that sale or otherwise dealt with by agreement.

31

Negotiation, would have been about a quarter of a million

1.LL:KG 09/12/08 2Cressy

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Because my case for

The properties were My legitimate sales

My original sale, as per that

123

DISCUSSION

1

dollars at the start of this year.

2This is Altona, is it?---Yes, Your Honour.

So we're talking a

3

quarter of a million dollars not 56 or whatever the

4

measly little figure is we're talking now.

5

$770,000 sale price.

6

about 18,000 in commission because he, he made the deal.

7

Now I don't concede he's entitled to that amount, but he

8

certainly did make a deal at a terrific price, 770,000

9

compared to the auction price which the hearsay evidence

That was a

My estate agent was chasing me for

10

is it was 627,000.

11

with Point Cook.

12

because they're fenced as one.

13

I rented the properties out.

14

six months, it's an unusual property to rent out.

15

have a tenant in there.

16

their daughter.

17

$1200 a month, $300 a week in rent - I think it was $1300

18

a month in rent.

19

gardener because of all of these unnecessary changes to

20

the garden that Ms Cressy made with surprise, surprise my

21

cash Your Honour.

22

gardening maintenance to keep it up to scratch.

23

lost a quarter of my monthly rent to pay the gardener for

24

a rental property.

25

contracts of sale there to the - well one Chinese family

26

really but there were three different parties.

27

as August this year they were still willing to go through

28

with those contracts at those January 08 prices and from

29

what my real estate contacts tell me that's amazing given

30

what's happened with the early interest rate spike,

31

market collapse, the sheer volume of - - -

1.LL:KG 09/12/08 2Cressy

FTR:1

November last year - similar story I think of the two properties as one After Ms Cressy moved out They were empty for about I did

A lesbian couple moved in with

They rented it and they were paying

I had to pay $300 a month to the

It meant that it required professional So I

I exhibited yesterday afternoon the

124

As late

DISCUSSION

1Well we don't need your commentary on the market.

You say the

2

purchaser was still willing to complete those sales in

3

August?---Yes.

4Right?---And may I hand up copies of letters that I wrote to 5

this is a letter, one page fax of 11 August 2008 to the

6

solicitor and commercial advisor for those three

7

purchasers of the joint Point Cook requesting them to

8

receive - to provide me with (indistinct).

9Sorry this is a letter by you to Mr Saad Hassan?---The 10

representative of the purchasers of the two Point Cook

11 properties. 12 13#EXHIBIT 37 Letter of defendant to 14 Mr Saad Hassan dated 11/08/08. 15Do you wish to see that Mr Devries? 16MR DEVRIES:

Yes Your Honour.

17HIS HONOUR:

Thanks?---On the same morning I sent a fax to my

18

mortgagee there, Royal Guardian Mortgage Corporation,

19

mindful that I might be breaching Mr Justice Cavanough's

20

orders that I not speak to my mortgagee.

21

jeopardy I believe by possibly contravening his orders

22

but nonetheless I sent a fax to my mortgagee saying can

23

you advise the payout figures.

24

letter and if I have breached those orders then there's

25

nothing I can do about it except admit that I did send

I was in some

I'd like to tender that

26 that letter Your Honour. 27 28#EXHIBIT 38 Facsimile of the defendant to Gadens 29 Lawyers dated 11/08/08. 30WITNESS:

Your Honour I anticipate some of the contents explain

31

why my bank is respecting my right as a client, banker

32

client confidentiality in not providing my personal

33

banking information to Mr Devries' instructor or their

34

client about my financial affairs for the Point Cook

1.LL:KG 09/12/08 2Cressy

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125

DISCUSSION

1

properties.

2

I anticipate there will be some objections from my

3

learned friends about - - -

4HIS HONOUR:

So there is some content in there that I, I,

Well these letters are simply being tendered for

5

the fact of the letter not for the truth of the contents?

6

---Yes thank you Your Honour.

7

letter I received - I received responses to both of those

8

correspondences, very quickly too.

9

lawyers from my mortgagees at Point Cook advising what

Your Honour the next is a

This is from the

10

those settlement figures will be.

This is the only copy

11

I have Your Honour so I'd be asked if I could take this

12

with me during the luncheon break to make the copies on

13

the usual undertakings.

14Mr Richards will photocopy them in lunch time?---I'm indebted 15 to Mr Richards. 16 17#EXHIBIT 39 Facsimile letter from Gadens Lawyers to 18 the defendant 15/08/08. 19WITNESS:

Your Honour, I have a reply back from the

20

representatives for the Point Cook purchasers, although

21

they did only reply in respect of Point Cook, 2

22

Dorrington Street, which is unusual.

23

copy, so if Mr Richards will be obliging to take copies

24

in the lunch interval, I'd be grateful.

25HIS HONOUR:

Again it's my only

I hope this is going to prove something?---It's

26 definitely relevant on damages, if - if - - 27 28#EXHIBIT 40 Letter from Mr Saad Hussan of Medina 29 Financial & Legal Services to the 30 Defendant of 22/08/2008 31Yes?---Your Honour, after those discussions with - I had 32

discussion with Mr Hassan regarding his client's

33

intentions, and given that they wished to proceed with

34

the purchase.

1.LL:KG 09/12/08 2Cressy

Sorry, there's two things I want to point

FTR:1

126

DISCUSSION

1

out, the least (indistinct) one I'll go with first, Your

2

Honour.

3

cash at that time, me not having any employment or

4

ability to work because of the stress that I was under

5

for many months, I decided to try to set things right in

6

the expectation that we'd be looking at a three to four

7

week trial in this matter, maybe this time next year or

8

early the following year.

9

that was returnable before Master Evans which has been

I then resolved, me being a man of very little

I then issued that summons

10

adjourned to this hearing, Your Honour.

At that time I

11

issued that summons, and indeed not until Master Evans

12

told me during that hearing, very brief hearing, that

13

this matter had been set down for trial.

14

that.

15

after my sixth attempt to get information from the

16

Prothonotary's office, and not wanting to be critical

17

because I know they do a fantastic job.

I did not know

I did not know until 18 September this year when

18Let's see if we can stay relevant for more than two minutes at 19

a time?---I was told that the matter had been set down

20

for trial for two days commencing of course last Tuesday,

21

Your Honour.

22

no orders for discovery, et cetera, et cetera.

23

for - for further pleadings, joining of additional

24

parties, the usual things which Mr Justice Whelan

25

described in the practice court on 18 March this year.

Now, I was surprised because there had been

26Mr Johnson, you are meant to be giving evidence.

No orders

So far in an

27

hour and 20 minutes you've given about 15 minutes worth

28

of evidence today.

29

Now, try to stay relevant to the evidence to proving your

30

counter claim and meeting the claim against you?---On the

31

point of damages, Your Honour, if my - and - sorry, there

1.LL:KG 09/12/08 2Cressy

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You are not doing your case any good.

127

DISCUSSION

1

was an arcing point.

That wasn't the arcing point, Your

2

Honour.

3

I - I need to recall it.

4

that it was appalling that - - -

There was a more heated point I wish to make and It would - my submission is

5I'm not here to hear submissions at this stage.

At this stage

6

we are meant to be in the middle of your evidence which

7

has now taken an inordinate time, and it has taken an

8

excessive time because on multiple occasions you have

9

deliberately intentionally and wilfully ignored my

10

direction to you to be relevant.

Now, that direction

11

should assist you because if you aren't relevant you're

12

not addressing points you need to address in the claim

13

and counter claim.

14

Honour, I did not attend the hearing before Justice

15

Hansen on 14 July this year.

Now, let's hear your evidence?---Your

16Well, that's irrelevant to this proceeding.

Let's continue

17

with your evidence?---Mr Justice Hansen made orders

18

giving Ms Cressy powers to sell these properties as if -

19

as if a mortgagee.

20Yes?---I say that it is appalling that it was not brought to 21

His Honour's attention by the officers of the court who

22

were present at that hearing.

23Which properties did His Honour order the sale on that day? 24

---He did not order any properties be sold.

25

Ms Cressy powers of sale like a mortgagee.

26

described these in his opening.

He gave Mr Devries

27The Point Cook properties?---Yes, Your Honour. 28Which you don't know whether those properties have been sold or 29

not?---I believe not, Your Honour.

30Right?---I don't know why it wasn't brought to Mr Justice 31

Hansen's attention that there were - there were willing

1.LL:KG 09/12/08 2Cressy

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128

DISCUSSION

1

purchasers at January 2008 prices, and all that needed to

2

be done as per the submission that I faxed His Honour

3

prior to that hearing, His Honour Justice Hansen, was

4

just to order that they be sold pursuant to those

5

contracts and the monies paid into court.

6

would have locked in nice sale prices, big sale prices.

7

It would have closed out many months of interest only

8

mortgage payments.

9

equity generated from the sale of those proceeds that

10

could have been applied into court or otherwise dealt

11

with by negotiation between the parties, rather than the

12

properties being run down to the point where they're in

13

negative nett equity, Your Honour.

14

wanted to make on the damages.

15

I can make the same point in terms of the sale of the

16

Altona property.

17

I did, Your Honour.

18

through, the nett sale proceeds would have been $250,000

19

or more at that $770,000 contract value.

20

Your Honour, I am duplicating that.

21

clarify.

22

call Mr Michael Clarebrough to give evidence because his

23

report would be admitted in it.

Now, that

There could have been some positive

That's the point I

Thank you, Your Honour.

Maybe I already did a few moments ago. If that sale had been allowed to go

Forgive me,

Your Honour, may I

Mr Devries made a concession.

I didn't need to

24Yes, well, you can tender his report and his exhibit and it 25

will be received?---I need to tender now, do I, Your

26

Honour?

27Yes, well, at some stage before you close your case.

You don't

28

need to do it while you're in the witness box as part of

29

your evidence you can do it from the Bar table in due

30

course if you wish to.

31

---I'd love to do it now (indistinct).

1.LL:KG 09/12/08 2Cressy

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Do it either way?

129

DISCUSSION

1All right, do it now?---Thank you, Your Honour. 2MS SOFRONIOU: 3HIS HONOUR: 4

Yes, no, it's a good idea.

You may move around if

it assists you Ms Sofroniou.

5WITNESS: 6

If Your Honour just - - -

Sorry, while I'm looking for that report Your

Honour - - -

7HIS HONOUR:

Why don't we move to that when you find it?---I've

8

just found something else.

9

to Justice Cavanough for that hearing on 20 June.

10

This is my written submission I'm

wondering whether I can tender that to Your Honour.

11I don't see the relevance of it?---It explains the status of 12

the properties at that time.

13You can give evidence now as to that status, but the document 14

would not prove it?---I will find my report during the

15

lunch break and tender it up to Your Honour.

16Yes.

Mr Devries might have a copy of it.

17MR DEVRIES:

I was just going to look for it now.

18HIS HONOUR:

If you do, if your side could run off a copy and

19

give it to Mr Johnson he can tender, if you wouldn't

20

mind.

21MR DEVRIES:

Don't mind at all Your Honour.

22HIS HONOUR:

It would be of great assistance to the court,

23

thank you Mr Devries.

24WITNESS:

I do have copies somewhere here.

25HIS HONOUR:

That doesn't matter.

Let's just proceed with your

26

evidence?---So my evidence of damage as a result of

27

Ms Cressy's claim and the actions of David Hanlon and

28

Harold Andrews in support of that claim, are the loss of

29

- diminishing of value of my property portfolio.

30

also - do I need to contemplate that in round figures

31

Your Honour?

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130

There's

DISCUSSION

1You've got to add use admissible evidence of that effect? 2

---I've produced the contracts of sale.

3

those pre global financial crisis values.

4

evidence those sales did not proceed.

5

is evidence by the very orders of this court Your Honour,

6

in the various Practice Court trials.

7

Justice Cavanough on 20 June this year and Justice Hansen

8

on 14 July this year.

9

was a terrific decision, by Master Evans not to hear my

10

application of - when it was before him, I think it was

11

September this year, Your Honour.

12

state of events and this matter had been set down for a

13

trial this year, I wouldn't have even issued that

14

application.

15

including additional mortgage costs incurred, by the

16

frustration of that December 2007 sale, I put at the

17

order of about - it's in excess of 300,000 Your Honour.

18MS SOFRONIOU:

I've given it at I produced

The non procedure

There was

The decision which, with hindsight

If I'd known the true

The diminishing of value for Altona,

I object to the word frustration in as much as

19

that could relate to anything to do with cross claim

20

issues, Your Honour.

21HIS HONOUR:

Yes, what about assessment of value?

22MS SOFRONIOU: 23

In that form, I object on that - proven in that

Your Honour.

24MR DEVRIES:

So do I Your Honour.

25HIS HONOUR:

Yes, well your estimate is not evidence.

It has

26

to be evidence as to it's evolution in value?---That

27

evidence being the difference between the price at which

28

the property was sold by me?

29Yes?---770,000 in late December 2007 and the price at which it 30

was sold at auction.

31

hearsay out of the daily paper, the Herald Sun, 627,000.

1.LL:KG 09/12/08 2Cressy

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The only advance I've got is the

131

DISCUSSION

1

It's an immediate shortfall of 143,000.

2Have you taken any steps to verify that that was the sale - the 3

mortgagee sale price, 627?---I have not, since that date

4

of the auction being communication with my mortgagee, no,

5

Your Honour.

6

things and I've been caught on the hop 'cause I really,

7

honestly didn't expect that this matter would be

8

proceeding to trial this way.

I've been kind of busy organising other

9You need to prove the price at which it was sold.

I would have

10

thought even the mortgagee could advise you in writing.

11

I would expect that my objection could take it as a

12

formal proof of that?---I will make those inquiries of my

13

mortgagee during the interval.

14There needs to be some legitimate proof of that apart from your 15

say-so and newspaper report.

But you say your

16

understanding is it was sold at 627,000?---Yes, Your

17

Honour.

18All right, but - - -?---Mr Devries gave - - 19I'll hear from your friends on that, but I would have thought 20

that they would accept any proper verification of it

21

rather than requiring formal proof.

22

---Thank you, Your Honour.

23

do that.

Do you follow?

I’m - I'm indebted if we can

24But if you could get a signed document from the mortgagee, that 25

might be sufficient just to verify what it was sold for?

26

---Yes, thank you, Your Honour.

27All right?---I'll seek that.

My - my bank and lawyers seem

28

very reticent to speak to me about anything to do with my

29

property, although they do seem to be judging

30

Mr Devries's information when he led in opening the

31

plaintiff's case.

1.LL:KG 09/12/08 2Cressy

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They're quite willing to discuss 132

DISCUSSION

1

properties with him but not with me.

2The attitude of the mortgagee is not really of any assistance 3

to me, but I would have thought if you could just simply

4

ask them to confirm one fact, that it was sold at auction

5

on, I think it's 8 November, the sale price?---Presumably

6

it's settling today, Your Honour.

7Yes?---30 days later. 8And particularly the nett proceeds of the sale after expenses? 9

---And itemised expenses, yes.

10Then that would be of assistance to you in establishing that 11

part of your counter claim.

12

there?---Thank you.

13MR DEVRIES:

Now, let's move on from

My other damages are the - - -

Your Honour, I have found a copy of

14

Mr Clarebrough's report.

15

was given to us has one sentence chopped off because of

16

the way it's been photocopied.

17HIS HONOUR:

Unfortunately the version that

Yes, well, what I will do, I will receive that as

18

an exhibit now, if that's convenient to you?---Yes,

19

excellent, Your Honour.

20If you actually have a clearer copy you come across?---No, that 21

is as received.

That's why on Tuesday morning I

22 described, and I completed that disjointed paragraph. 23 24#EXHIBIT 41 Copy of report of Mr Michael Clarebrough, 25 principal psychologist, dated 25/05/2008 26Next?---Your Honour, on the point of damages, these are debt 27

collection notices from my estate agent, John Kontek Real

28

Estate, through their lawyers.

29

for commissions on those sale contracts for Altona and

30

the two Point Cook properties.

31

but these are the only - these are the originals.

32

They're all that I have so perhaps if your tipstaff would

1.LL:KG 09/12/08 2Cressy

FTR:1

133

Lawyers letters of demand

I'd like to tender these,

DISCUSSION

1

be kind enough to copy those during the luncheon break as

2

well.

3Well, if he has time to do so, he will do it.

He has other

4 duties to attend to too?---Thank you, sir. 5 6#EXHIBIT 42 Three letters from BBK Lawyers to the 7 defendant dated 14/11/2008 8MR DEVRIES: 9

Your Honour, I will arrange for those and other

documents to be photocopied over the lunch break.

10HIS HONOUR:

Thank you, Mr Devries.

11MR DEVRIES:

On the usual basis that they will be released to

12

us anyway

13HIS HONOUR:

Yes, thank you very much?---Thank you, Mr Devries.

14These are for commissions, are they?---Yes, Your Honour.

The

15

other component of my damage and loss is of course the

16

continuing mortgage payments which I was unable to

17

service.

18Yes?---The next component of loss is of course the - my 19

inability to earn fees because of my time taken up

20

dealing with all of this mess, and my inability as a

21

result to focus on the needs of my clients which resulted

22

in me closing my - my personal legal practice, Johnson

23

Legal.

24

open from May 2007 onwards.

25

eventually just before the end of July 2008.

It - it had been struggling to keep the doors

26MS SOFRONIOU:

I closed the doors

Your Honour, I object to this, although Your

27

Honour may prefer it as an issue of submission instead,

28

but such opportunity costs would be evidence as to

29

damages, certainly against my client.

30

Honour may prefer to receive the evidence and then hear

31

submission about that, in which case I won't interrupt

32

further.

1.LL:KG 09/12/08 2Cressy

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134

But as I say, Your

DISCUSSION

1HIS HONOUR:

What was the basis of the objection, relevance?

2MS SOFRONIOU: 3HIS HONOUR:

Relevance, yes, Your Honour. Or on the basis of remoteness?

4MS SOFRONIOU: 5HIS HONOUR:

Yes. Yes, thank you, Ms Sofroniou?---Your Honour, I am

6

sorry, stepping back one, in terms of the additional

7

costs under the mortgage, I'd referred somewhere to the

8

mortgage payments.

9

banks will be looking to me to account for, whether out

There are of course costs that the

10

of the sale proceeds or otherwise, being their legal

11

expenses and additional higher charges and costs

12

applying, for having to go through the mortgagee sale

13

process and for their involvement in the practice court

14

trials in this matter.

15

I will seek to get information from my mortgagees as to

16

what exactly - to quantify those - those amounts.

17

next issue I have is because the plaintiff has no

18

capacity to meet any orders for damages or costs on

19

losing her claim in these proceedings.

20

defence counsel I thought that that was evidence that was

21

before you because I thought that her affidavits, sworn

22

affidavits to that effect were before you.

23

the last month received copies of affidavits from

24

Mr Colin Twigg of Harwood Andrews and also from

25

Mr Turnbull of Berry Family Law attesting to the fact

26

that her legal costs in these proceedings overall

27

probably in the order or $200,000 as of several weeks ago

28

of which she has only had to pay $3000.

29MR DEVRIES:

And just as with the sale price,

I object to this Your Honour.

The

As my alter ego

Now I have in

I don't see the

30

relevance and if he's going to make those assertions he

31

needs a bit more evidence than - - -

1.LL:KG 09/12/08 2Cressy

FTR:1

135

DISCUSSION

1HIS HONOUR:

Well I see no relevance even?---I have sworn

2

affidavits by the two legal professionals that I

3

mentioned that I could - - -

4What's the relevance of this to this case?---The relevance is 5

that - - -

6To the issues pleaded?---The relevance is that Ms Cressy's 7

previous and current lawyers have made at all times that

8

she (indistinct) funds to meet any orders for damages or

9

costs.

10MS SOFRONIOU: 11HIS HONOUR:

I object Your Honour. Yes?---On what basis?

12It's irrelevant.

None of that relates to the issues in this

13

case?---Your Honour how can it be irrelevant that they've

14

applied for and over my protest, received interlocutory

15

relief for her in these proceedings in circumstances

16

where she's, in all cases but one not given any

17

undertaking in the usual form for damages and she's never

18

in any case provided evidence that she could meet such an

19

undertaking - - -

20You claim to me that relates to any of the causes of action 21

which are pleaded in print in the amended counter -

22

defence and counter claim filed and served by you and

23

dated 18 February 2008.

24

to?---It, it - - -

Which paragraph does it relate

25You (indistinct) me to a paragraph - - -?---It was certainly 26

covered in the prayer for relief Your Honour.

27No the prayer for relief is as good as the claims which are 28

expressly in writing spelt out in the counter claim.

29

Point me to a paragraph in the counter claim to which

30

this issue applies?---It's certainly covered in the

31

pleadings in 9623 of 2008 Your Honour.

1.LL:KG 09/12/08 2Cressy

FTR:1

136

I do not see DISCUSSION

1

anything precise - - -

2This proceeding is No.9665 of 2007?---Should I be seeking leave 3

for an application to amend these pleadings or should I

4

simply leave the matters to the other pleadings?

5(Indistinct)?---Perhaps not.

Your Honour under Order 6323 of

6

the Supreme Court rules there is provision for orders for

7

costs at least.

8

costs to be made against the legal representation of a

9

party on the failure of that party's claim.

I don't think it extends to damages but

10Well we haven't got that stage yet.

We haven't got to costs.

11

You (indistinct) when we're talking about costs then put

12

on notice yourself about the time wasting you've been

13

indulging in deliberately over the last five or six days,

14

but we haven't otherwise got to the issue of cost and we

15

won't get there until this case completes, if it ever

16

completes during my lifetime and I'd even manage to do a

17

judgment during that period of time.

18

the order of costs if you succeed or if the other side

19

succeeds but not until then.

20

causes of action that are pleaded in the claim against

21

you and which are pleaded in writing in your counter

22

claim.

23

---Your Honour forgive my lack of or absence of

24

experience but just so I see the road ahead Your Honour

25

will give judgment and we'll then hear submissions on

26

costs at that point or do the submissions on cost need to

27

be given before - - -

28No. 29

Then we may get to

Now let us remain on the

I don't know how I could make that any clearer?

They are heard obviously after judgment because - - - ? ---Thank you Your Honour.

30- - - the judgment will affect the issues of costs?---Thank you 31

Your Honour.

1.LL:KG 09/12/08 2Cressy

Because I will be seeking costs against

FTR:1

137

DISCUSSION

1

Ms Cressy's legal representatives on Caliman's case

2

principles as well as Order - - -

3Yes well it is in fact appropriate under (indistinct) that you 4

give her appropriate notice of that?---Thank you Your

5

Honour.

6(Indistinct) now let us proceed with the evidence in this case? 7

---I'm indebted to you for your patience Your Honour.

8

Let me come back to some of the points.

9

working my way through the transcripts of Ms Cressy's

I have been

10

evidence.

I'm concerned about the triple handling

11

because there are things that - statements of facts that

12

I've made in cross-examination as puttage which I now

13

need to repeat so that they're actually in my evidence-

14

in-chief.

15Yes I made that clear to you a couple of days ago?---Yes.

Yes

16

you did Your Honour and it's tricky because I counted

17

last night, triple handling.

18

(indistinct) at the moment but that's at least not -

19

there are some things which I need to come back to.

20

Ms Cressy's statement of claim she describes a number of

21

employments.

22

about selling jewellery at markets, I'm not sure during

23

what period but I certainly never saw any evidence of

24

that.

25

jewellery together and she was very creative with it,

26

beads on, on wires and strings to make necklaces but I

27

never saw her produce any sale - anything for sale or

28

anything in saleable quantities.

29

selling cosmetics under Le Reve Party Plan.

30

evidence that she did become a Le Reve consultant as did

31

her mother.

I can't see the third

In

With that amendment she's basically talking

I certainly saw evidence of her as a hobby putting

1.LL:KG 09/12/08 2Cressy

FTR:1

138

She gave evidence of I did see

DISCUSSION

1You did see that evidence?---Yes, but - - 2Is that at South Yarra?---Yes, that was during the period at 3

South Yarra, including I encouraged her to do a letterbox

4

drop of all of the people in that relevant grid of South

5

Yarra.

6

parties, which she held at Harem International brothel,

7

for her co-workers.

8

didn't see any evidence of her making any - any money

9

from either of those activities.

To my knowledge she perhaps only had or two

I don't believe and certainly I

For a significant

10

period and certainly all of the period that she was in

11

residence with the children at Point Cook, my

12

observations were that she wasn't working, she was a

13

full-time student.

14

and I put some of that already in evidence.

15

indeed one of the conditions of our child support

16

agreement, the agreement I refer to in my counterclaim,

17

that she complete an education, find good family value

18

consistent work.

19

get out of the brothel activities because it was damaging

20

to her and the children.

21

Peter Cockram in the box, that will be made abundantly

22

clear, Your Honour.

23

the plaintiff by counterclaim case.

24

Ms Cressy decided to go into the therapeutic massage

25

business, so she purchased, with her money, a table that

26

the masseur's use, which has little face area cut out and

27

it's cushioned.

28

a handful of therapeutic massages, apart from free to

29

family and friends.

30

those massages myself under the category or friend or

31

family or customer.

1.LL:KG 09/12/08 2Cressy

FTR:1

Certainly I was paying the study fees That was

Do one or the other and by all means

If we get our witness,

He's vital to the defence case and The Cinnamon Theory,

I don't believe she ever gave more than

I don't recall ever getting one of

I don't recall, I don't think I ever 139

DISCUSSION

1

did.

I'm not sure what timeframe Ms Cressy claimed in

2

the statement of claim to be have been working in the

3

Cinnamon Theory business - - -

4The what business?---Cinnamon Theory. 5What's Cinnamon Theory?---Therapeutic massage.

She was also

6

looking at bottling up some sort of aromatherapy therapy,

7

herbal remedies and sort of luxury products.

8Did she do any of that?---She did a little bit of field work to 9

work out how you would get them and how you would source

10

them.

I think from memory that their basically all

11

produced in India or something and a big quantity, you

12

store them in a shed and you put your own labels on.

13

It's that sort of business.

14

I didn't fund any of that for her.

15

would have funded very much either.

16

another wasted idea.

17

are now alerted that contrary to our agreement and her

18

representations, and I can say no more without this

19

additional witness, maybe she didn't quit the brothel

20

activities as she had agreed and represented that she did

21

have.

22

that I knew nothing about.

23

have told me, as being earnings of some therapeutic

24

Cinnamon Theory massage business.

25

Your Honour.

26

Number Register search I did this morning, Ms Cressy

27

registered The Cinnamon Theory with an Australian

28

business name.

29

let me find the papers.

30

Your Honour.

31

contracts for all of the properties, except maybe the

Didn't go very far into it. I don't think she I think that was

But, it may be that - my suspicions

Maybe she started processing earnings that she had

1.LL:KG 09/12/08 2Cressy

She most definitely wouldn't

Their hunches,

I can say that from the Australian Business

I don't want to get this date wrong, so It was quite late in the piece

It was certainly after I signed all of the

FTR:1

140

DISCUSSION

1

Altona one and of course the Torquay one, which I submit

2

is totally outside of these proceedings anyway.

3

just located another batch of exhibits Your Honour.

4

the one I just described.

I've Not

5You say she registered a business name, but some time later, is 6

that what you're saying?---Yes, it's outside the relevant

7

period for the purposes of any claim where an income from

8

those activities may have found it's way into my pocket

9

or my properties.

10The relevant period, you say after April 2007?---No, no, I 11

would have thought the relevant period was when I

12

purchased each property, because she's conceded in

13

evidence that she didn't contribute anything for funding

14

mortgages.

15

break so we can keep moving Your Honour.

16

payslips for the period that Ms Cressy was on my payroll.

17

She claimed to be working out of my Bourke Street office

18

home.

19

for various reasons, personality reasons, that just

20

didn't work.

21

something to give her to do.

22

at the period, anyway.

23MR DEVRIES: 24WITNESS:

I do have

She did come in early on a couple of times, but

She stayed on my payroll, I needed to find She was studying full-time

He's already covered this Your Honour.

Have I handed up these payslips Your Honour?

25MR DEVRIES: 26

I'll find that exhibit during the luncheon

He hasn't handed up the payslips, but this

evidence is already on the transcript, yesterday - - -

27HIS HONOUR:

If he wants to tender payslips he can.

28MR DEVRIES:

I'm quite happy for him to tender the payslips,

29

but not to waste time repeating his evidence of yesterday

30

morning.

31WITNESS:

Can I tender the payslips Your Honour?

1.LL:KG 09/12/08 2Cressy

FTR:1

141

They cover a DISCUSSION

1

period up to, I think, September 2006, that Ms Cressy was

2 on the payroll. 3 4#EXHIBIT 43 Bundle of payslips by Sutton Johnson to 5 the plaintiff 6MR DEVRIES: 7

intended Your Honour.

8HIS HONOUR: 9

And if I could see them and what the evidence

Thanks for that?---Sorry, Your Honour, what was

the number of that exhibit?

1043?---What I did, Your Honour, to give Ms Cressy work to do, 11

now, she was a full-time student, she had a household of

12

children that she was sole parent to.

13

responsibilities to deal with assisting me to manage my

14

property portfolio.

15

period interposing her as my agent with my real estate

16

agent, Westwood First National in Werribee, in managing

17

the Hawkhurst property for a brief but difficult period.

18

What happened is that the first tenant who had gone in

19

there, a couple, a de facto couple with two little boys,

20

they'd wrecked my brand new house.

21

dollars of damage, totally destroyed the carpet, not once

22

but twice in the living area.

23

in an appalling state.

24

months rent.

25

agent who put them in there, which was Elders Real

26

Estate, so I sacked them after I got the landlord

27

insurance claim through, which paid for most of the

28

internal repairs including the replacement carpet.

29

basically I got the cash through the insurance policy,

30

and I organised those repairs to be done by the new agent

31

which was Westwood First National.

32

signed a letter at some stage for Westwood First National

1.LL:KG 09/12/08 2Cressy

I gave her various

Now, this included for a brief

They did thousands of

Left the walls and doors

They skipped out, owing me many

I didn't - I was dissatisfied with the

FTR:1

142

But

And I believe I

DISCUSSION

1

to say, "Ms Cressy is my assistant.

Any issues to do

2

with the tenancy and you need instructions, speak to

3

Ms Cressy.

She's got authority from me."

4Well, Ms Cressy states that she did all those repairs in 5

relation to Hawkhurst.

What she said in relation to

6

Hawkhurst was that, if I can find my notes, that she did

7

the landscaping twice.

8

the tenants neglected the garden so she had to redo it.

9

She said that she organised and paid for the repairs to

She initially landscaped it, then

10

the walls, to the carpet and other matters that were

11

necessitated by the tenant.

12

of her evidence?---I heard the evidence, Your Honour.

13What do you say as to that?

That's, I think, the effect

You say you in fact paid for the

14

repairs?---All the internal repairs were done by the

15

managing agent and people - - -

16What was the name of that managing agent?---Westwood First 17

National it was, using the proceeds from the landlord

18

insurance policy.

That is all of the - - -

19Does that include the carpet?---Yes, yes, definitely the 20

carpet.

I wasn't able to recover the unpaid - unpaid

21

rent because of a gap in that particular policy.

22So you say the insurance policy paid for the replacement 23

carpet?---Yes, Your Honour.

24What about the garden, did that have to be redone because the 25

tenant neglected it?---The - the garden, yes, on each

26

changeover of tenant, it had to be done.

27

period when water restrictions were just coming in

28

strongly.

This was at the

29Yes?---So you couldn't water turf at all. 30Who redid the garden?---Me, Your Honour, the bulk of it. 31

Ms Cressy did some in her capacity as - as my employee.

1.LL:KG 09/12/08 2Cressy

FTR:1

143

DISCUSSION

1

May I digress slightly?

I'm actually a landscape

2

gardener by trade.

3

the age of 11 I worked with him, often 20 plus hours a

4

week, even as a primary school student.

5

carried my weight through my last year and a bit of

6

primary school, carried my weight within a relatively

7

poor family for all of my high school years, and my first

8

year or so of university.

9

the front involving basically, because the soil content

It was my father's business.

From

That was how I

I did the extensive works out

10

was very poor and it was dried out.

It's basically old

11

sheep cropping country where they've scraped all the top

12

level off when the developers go through, volume

13

development.

14

quality topsoil, manures, mixing through and reseeding,

15

and a little bit of sculpting so that it wasn't flat so

16

you'd get a bit of water retention if it ever rained.

17

did all of that heavy landscaping.

18

task of the garden beds which involved putting little pot

19

plants.

So basically it involved trucking in

I

Ms Cressy had the

20Who paid for the plants?---All my money, Your Honour, on top of 21

the salary I was paying Ms Cressy at the time, and not a

22

huge task.

23

this goes for both the Hoppers Crossing properties and

24

also for Point Cook, all three properties, as part of the

25

house and land package, the front part of the property

26

was fully landscaped by the builders.

27

lawn, you had some pine bark down.

28

done out the front on any of the three properties.

29

was all in the package.

When I purchased the property, and this -

So you had your

Nothing needed to be It

For Point Cook - - -

30So that's the two - - - ?---2 Hoppers Crossing. 31And Dorrington - - - ?---And Dorrington Street, Point Cook. 1.LL:KG 09/12/08 2Cressy

FTR:1

144

DISCUSSION

1

Now, for the rear of Point Cook.

For the rear of Point

2

Cook, it was a big house so there was virtually no

3

backyard on the house block anyway and when I moved three

4

adults and the five children into the house it was fenced

5

as a single block.

6

so that much of the area all around the rear boundaries,

7

both sides and the back was paved and there is a patio

8

area, paved.

9

paving fellow just rolled some instant turf down.

I paid $9,000 for substantial paving

There was a little bit of lawn that the So

10

again the original landscaping was done beautifully.

11

underground watering system as well I put in, this was

12

just before the orders - - -

An

13You say any landscaping by Dorrington Street was done by you 14

and paid for by yourself?---Yes, yes, and that was

15

completed before us three adults and five children moved

16

into the property in March '03.

17

will be among the 40 or so folders that I have mentioned

18

a number of times that I had stored in the Altona shed of

19

which Exhibit 1 is the only segment that has been put

20

back in my possession, but there are or there were the

21

relevant segment of folders for Point Cook, one in seven

22

for Dorrington Street, those receipts will be in there.

23

Now, when Ms Cressy was in occupation at Point Cook, yes,

24

she did a bit of landscaping.

25

front yard.

All of those records

She completely re-did the

26She re-did the front?---Yes, yes, completely worked over, 27

perfectly good lawn with a rockery type garden of pebbles

28

and there's interlocking pavers that were quite

29

expensive, they were like a metre square and they were

30

set down.

31

four foot and two foot concrete planter boxes which were

1.LL:KG 09/12/08 2Cressy

There were some long - it was a combination of

FTR:1

145

DISCUSSION

1

aligned and they were very heavy aligned around the

2

perimeter, the front perimeter because there was no fence

3

as such, and there was extensive planting of succulents

4

in the front area.

5

bit of the pebbling but only a small part and she paid

6

for all of the wooden paving tiles, OK.

7

residence at the property.

8

because I thought lawn was perfectly good enough to be

9

honest, Your Honour, it looked fine the way that Metricon

Now, Ms Cressy initially paid for a

Now, she's in

I wasn't happy with it

10

had completed it.

11

was keeping her happy and occupied and I thought away

12

from the brothel activities.

13

she's living there, let her do it.

14

those expenses.

15

planters, I even carried them myself and there were a

16

number of trips with my car to do that, and they weighed

17

an absolute ton.

18

of - the large planters and there was like a little gate

19

near the letterbox created by them.

20

different sized river pebbles and again I brought all

21

those in with my car with a trailer, I did that.

22

those pebbles when I last was at the property having them

23

properly laid.

24

There's evidence of painting.

25

painted the 2 Dorrington Street house, beautifully done,

26

nice consistent colour, it was a lovely goldy sand colour

27

all through the house, it just looked superb and the

28

architraves were in black and it was airy as because most

29

of the externals were windows rather than construction,

30

it was lovely.

31

laid, the tiles were done as part of the - - -

1.LL:KG 09/12/08 2Cressy

Nevertheless, she was doing that, it

All right, let her do it, I reimbursed her for

I paid directly for all of the concrete

There were some concrete planters sort

There was lots of

Some of

I did the bulk of that laying of those. Again Metricon fully

There was no need.

FTR:1

146

All the carpets were

DISCUSSION

1Did she re-do some painting, she said she did?---She did do a 2

bit of painting, she painted both the bathrooms in a very

3

basic blue which to my view were not improvements, they

4

were the opposite, certainly not a lot of work involved.

5

She carved out with some sort of purply maroon, almost

6

the colour of the chairs, Your Honour, on a couple of

7

walls of the living areas in the kitchen, and to my mind

8

again it detracted from the - I'm not sure what you would

9

call it, the harmony of the scheme when you had this

10

beautiful black and gold and the carpet and the black

11

tiles.

12

Whilst she was at the house she had a pair of Dalmatian

13

dogs.

14

in her evidence.

15

best of breed, there were all sorts of physical and I

16

think probably mental issues.

17

a handicapped dog.

18

windows, made a terrible mess.

19

plaster and there was plaster in the back living room

20

heading into the hallway to the rear bedrooms where they

21

chewed through - chewed through and it needed to be

22

repaired and there was a lot of that sort of damage,

23

scratching of doors by dogs and things inside the house

24

that probably until this day haven't been rectified.

25

my evidence is that so-called improvements, not a lot of

26

effort, not a lot of money, they didn't really add, they

27

detracted substantially and there was a whole heap of

28

damage besides, particularly pet damage that was never

29

fixed while Ms Cressy and the children were living there.

30

The rendering, I put some things particularly to

31

Ms Cressy Senior on Thursday afternoon.

So again I don't think they were improvements.

I think Ms Dek-Fabrikant might have mentioned them

1.LL:KG 09/12/08 2Cressy

FTR:1

One of the dogs was certainly not the

You could almost say she's

The dogs would scratch walls, scratch

147

They would eat the

So

The rendering, DISCUSSION

1

again I paid for all the render pots.

2

there because the - - -

There were issues

3Who did the rendering?---I did the front of the house and a 4

little bit down the sides.

Now, the front of the house

5

had the least glass frontage because it's west facing,

6

that made a lot of sense.

7

house, but a lot of glass there and with the heightened

8

ceilings yes it was fiddly.

There were long sides to the

9Who did them?---Ms Cressy Senior did those. 10Did Ms Cressy Junior do anything?---I think there was an 11

afternoon where she helped me a little bit with the front

12

because I had to get a very high ladder and with the kids

13

running around I think she helped me - it was actually

14

quite therapeutic because you're grabbing up handfuls of

15

mud and throwing it against brickwork so it's quite a

16

relaxing thing to do.

17

was another of my work for the dole strategies so that

18

Ms Cressy Senior had some money - - -

Ms Cressy Senior did that.

This

19All right Ms Cressy Senior did it and you paid her?---Yes Your 20

Honour.

21Now the plaintiff says that she purchased and installed 22

curtains, towel rails and other fittings?---There were

23

little bits and pieces that would have come from Bunnings

24

which have to be done because she was living in the

25

house.

26Curtains?---There are a big stack of wooden venetian - no, no 27

they were like thin bamboo that would roll down.

28

weren't terribly expensive.

They

29But who did them?---I'm pretty sure Ms Cressy bought them. 30

expensive, I think some of them came from Spotlight in

31

Hoppers Crossing.

1.LL:KG 09/12/08 2Cressy

FTR:1

Not

I have a memory of going to Spotlight 148

DISCUSSION

1

with her.

There were some basic pre formed curtains but

2

certainly not enough to close the windows.

3

some timber slat that like a venetian as well,

4

particularly in, in the main bedroom because there were

5

privacy issues, people peeking in from the side road.

6

have no recollection of giving her the money for those

7

but it would be going against a very strong flow if I

8

didn't pay her, compensate her for that.

9

everything and I suspect I probably reimbursed over the

There were

I

I reimburse

10

money on most things Your Honour.

11

substantial value in any case Your Honour.

12

painting that Ms Cressy did with me at Hawkhurst as part

13

of the (indistinct) of the tenants and that was one

14

evening where she and I spent about four hours with a

15

couple of stubbies of beer and we painted features on

16

three or four walls and it was basically a frame which I

17

set out with tape on the inside of outside of the frame

18

so it was about 20 centimetres thick in a brown so you

19

have the white with the wall - all the walls were white.

20

The frame in the brown then have another strip of white

21

and then you'd have sort of a textured brown or black or

22

greenish based filler on the wall but again that was four

23

hours of painting that I did more than 60 per cent.

24

certainly paid for all the materials.

25

couple of, a couple of stubbies of beer while - during

26

that evening, nothing substantial Your Honour.

27

have said enough, certainly with the Hawkhurst property I

28

paid a landscaper to come in and just like I had for

29

Dorrington Street to lay some landscaping at the back

30

because that wasn't part of the package.

31That was after purchase?---Yes, yes. 1.LL:KG 09/12/08 2Cressy

FTR:1

149

Towel rails again not There was

I

Ms Cressy had a

I may

Before the first tenant DISCUSSION

1

moved in.

So I paid him a few thousand dollars.

He put

2

a gazebo thing out the back with a cloth, a shade cloth

3

over the top.

4

because otherwise it would have been just that bare mud

5

because the developers, they do the front because it

6

looks nice but they skip out on doing the back.

7

leave that to the buyer.

8

around the fence, a very tiny block, back yard anyway.

9

Some pine bark laid and some natives that the gardener

He laid some tiles so there was a patio

They

Some lawn seed was laid and

10

planted for me, all of which died off from water

11

restrictions and tenant neglect anyway.

12

Lisa Court, Ms Cressy Senior was living in under the

13

rental arrangement that she described which I probably

14

need to repeat in evidence-in-chief don't I?

15

her to move in on a rent that was half the market rental.

The house at

I allowed

16I think you've already described that?---She - I, I fleshed it 17

out in cross-examination.

18

evidence.

Ms Cressy Senior gave the

I haven't - - -

19Yes she's given evidence as to it and I think you did refer to 20

it the other day?---Have I?

21

myself - - -

I'd rather not be repeating

22No I - - - ?---- - - in case I haven't - - 23- - - much prefer you didn't?---What Ms Cressy Senior said 24

about her occupancy under the lease and the fact that she

25

didn't bother paying even the 50 per cent market rent for

26

the first year because she was buying a car, driving one

27

of my spare cars during that year anyway Your Honour.

28

All of that was quite accurate including the terms of the

29

eviction.

30

Senior was accurate.

31

indeed does the plaintiff.

1.LL:KG 09/12/08 2Cressy

All, all of that description of Ms Cressy

FTR:1

She had an interest in gardening as

150

I left it to Ms Cressy Senior DISCUSSION

1

to landscape the back and she did a few thing at the

2

front.

She did a really nice job actually of the front

3

garden.

It was one of the nicest gardens in the street

4

but again it was me getting the soil delivered and pine

5

bark and mulch delivered and giving her a couple of

6

hundred dollars every now and then on top of her wages

7

that I was paying her.

8

some plants.

9

put a lot of little things in herself but given her

Here's some money, go and buy

I don't doubt that she did cuttings and she

10

financial circumstances she wouldn't put a lot of her own

11

money in and it's the sort of thing that people do to

12

pretty their nest whether they own it or they've just

13

rented it anyway Your Honour.

14

occupation.

15

both Ms Cressy Senior and Junior.

16

some copies of little notes of moneys that I paid to

17

Ms Cressy Senior.

18

working from Point Cook after I moved into Bourke Street,

19

but when I look at them carefully this is actually in May

20

- April and May 2003.

21

five adults - sorry all three adults and three children

22

had moved to Point Cook.

23MR DEVRIES: 24

I mention these work creation schemes to I actually do have

I thought these were when she was

So that's in that period where all

Your Honour, these things weren't put to

Ms Cressy's senior.

25HIS HONOUR: 26

It's an incidence of

I don't see how their relevant anyway?---Their

verging on irrelevance Your Honour.

27I don't know there's been a lot of verging, they are 28

irrelevant.

You've actually had a golden patch and you

29

stuffed us with relevant matters?---Thank you,

30

Your Honour.

31Let's just stick with that flight?---I'll put these in the bin 1.LL:KG 09/12/08 2Cressy

FTR:1

151

DISCUSSION

1

Your Honour.

2Yes?---OK, I've given evidence that Ms Cressy was working as a 3

prostitute on the very night that we met or the 2.20 a.m.

4

in the morning - - -

5Yes, you've said that twice?---Yes.

My relationship with

6

Ms Cressy has always been complicated.

7

intentions early on.

8

Doolittle, if you like.

9

My Fair Lady, there's issues there.

I had romantic

I was Henry Higgins to an Eliza Maybe a very extreme case of May I point out that

10

I've always been very respectful and very guarding of the

11

women in my life and that becomes because my parents

12

broke up - - -

13MR DEVRIES:

This is not relevant Your Honour.

14HIS HONOUR:

No.

15MR DEVRIES:

He's now playing for lunch Your Honour.

16HIS HONOUR:

It's a long time off yet?---I'm happy to finish by

17

lunch Your Honour.

18I'd be happy for you to finish earlier than that?---Thank you, 19

Your Honour.

20The only evidence in relation to your relationship with the 21

plaintiff, which is relevant concerns with your point

22

that you say it was not a domestic relationship and she

23

has alleged it was.

24

relation to that, but your parents relationship doesn't

25

seem to have any relevance to this at all.

26

nature of your relationship with the plaintiff, OK?

27

---I'll keep it brief.

28

extensively - - -

You're entitled to give evidence in

Lets hear the

I've addressed this already quite

29You say there was initially a romantic relationship.

You see

30

yourself as a Henry Higgins?---Yes, Your Honour.

31

Richard Gere and a Julia Roberts, the Pretty Woman.

1.LL:KG 09/12/08 2Cressy

FTR:1

152

Or a

DISCUSSION

1Yes, we don't want too many examples of it?---Thank you, 2

Your Honour.

Their the prettiest movies on the same plot

3

that I can think of.

4

she was 19 and a half, she was very gorgeous, very

5

intelligent, very charismatic.

6

from my estranged wife at the opposite end of the house

7

for two years.

8

describe the extent of my previous relationships with

9

women, but you can take it - - -

Ms Cressy is and she certainly was,

I'd been living in exile

All work, no play, very dull.

10No, we don't need to know about them.

I won't

The fact is you say you

11

had a romantic attachment to the plaintiff?---Yes,

12

Your Honour.

13Right?---Our relationship became very multifaceted.

I was her

14

confident, her best friend, I was her benefactor,

15

substantial benefactor, her extended family and that's

16

born in the evidence I've already given.

17

confide in me issues, stories, problems in her life

18

coming from her brothel activities.

19

counsel her get out of there, get out of there.

20

want a permanent proper relationship with me, you can't

21

be doing that, mutually exclusive.

22

whether you want that kind of relationship with me, it's

23

not good for you, it's not good for your children.

24

could recount the number of stories - I put the

25

- inputtage in cross examination the story of when she

26

was working at Harem International at the time of the

27

Sydney Olympics, one episode that springs to mind was her

28

telling me about the Russian weightlifting team, the

29

trainers, being billeted in Melbourne and visiting the

30

place.

31

gentlemen who I'm desperately keen to subpoena,

Ms Cressy would

I would continually

Irrespective of

There are hundreds of other stories.

1.LL:KG 09/12/08 2Cressy

FTR:1

153

If you

I

The

DISCUSSION

1

Mr Cockram, he's three years of story in my - in terms of

2

Ms Cressy he's Heath Ledger's Joker to my Christian Bale

3

Batman, Your Honour.

4

triangular set of relationship.

5

to the case the Your Honour.

6

of things that support neither case.

That's the nature of that little That's why he's critical

He may well give evidence

7MR DEVRIES:

This is now speculation - - -

8HIS HONOUR:

I agree with that.

9MR DEVRIES:

- - - and commentary.

10HIS HONOUR:

You can't say what he will give evidence about.

11

You just tell me what you're giving evidence about?

12

---Thank you, Your Honour.

13

leave the children either with her mother or with myself,

14

while she would go - - -

15MR DEVRIES:

We've been through all of this evidence

16

Your Honour.

17

given by this witness.

18HIS HONOUR:

Ms Cressy would regularly

This is a repeat of what's been already

It may be an elaboration.

If it goes to the issue

19

of a domestic relationship, I'm not going to shut him

20

out.

21MR DEVRIES:

If Your Honour pleases.

22HIS HONOUR:

But, stay relevant and only give admissible

23

evidence?---Thank you, Your Honour.

24During what period of time do you say that is?---Leaving the 25

children with me, much of - well winter of 1999, many a

26

weekend.

27

night.

28

fashion language, custody of the two boys.

29

would be effectively left with me while Ms Cressy went to

30

work on the Friday night, she'd sleep Saturday, she'd

31

work the Saturday night, she'd sleep the Sunday morning.

I'd drive down from Minter Ellison of a Friday I'd leave work early.

1.LL:KG 09/12/08 2Cressy

FTR:1

154

I would take - sorry old The two boys

DISCUSSION

1

She would be available for family time with the children

2

late on a Sunday afternoon.

3

- either Treece would go off to his biological father,

4

the next week, and/or both boys would then go into long

5

term crèche, Monday to Friday, long hours for the

6

following week.

7

winter 1999.

8

save them for the memoirs Your Honour.

9

relevance issues.

The two boys would then go

That was a horrible pattern during

I can give lots of details but I think I'll There's time and

There was a trip Ms Cressy took while

10

she was living at Grovedale - no, no, no, sorry, while

11

she was living under my roof at South Yarra.

12

would come and go with the children as she pleased.

13

There was no telling me what was going on, whether she

14

was going away all night.

15

you're house sharing you don't tell the people sharing

16

the house with you what your movements are.

17

really on that level.

18

told me she was going to work in the windows in the red

19

light district.

20

evidence it'll bear this out.

21

his maternal grandmother, Ms Cressy Senior, down in

22

Geelong.

23

months old something like that plus Skye were basically

24

left with me and that was an open ended trick.

25

no clear date when she would be coming back on that.

26

living in South Yarra, I'm working in Geelong.

27

driving the two children down to the day care centre in

28

Geelong, doing my work, picking the kids up, coming back

29

to South Yarra.

30

were lots of examples like that Your Honour over the

31

history.

1.LL:KG 09/12/08 2Cressy

Ms Cressy

It's like a house sharing, if

It was

She took a trip to Amsterdam, she

If I could compel her passport into Treece was billeted with

Illyana who was a baby, maybe 15 months, 18

There was I'm

I'm

That was that particular episode.

There

That's really all I want to say about that part FTR:1

155

DISCUSSION

1

of Ms Cressy's life in my observation.

2Good?---Thank you. 3

Your Honour I need to give you that Michael

Clarebrough report - no that's been tendered hasn't it?

4Well that's been tendered?---Yes, yes.

There are many things I

5

wanted to say but it looks like they're captured in the

6

9623 proceedings of 08 and I'm meant to take them up

7

there, certainly not before you in these proceedings.

8

well I'm hesitant to say it - - -

So

9That completes your evidence-in-chief?---I've certainly - I've 10

completed my evidence-in-chief in respect of my defence

11

and my counter claim against Ms Cressy.

12Yes?---I pleaded breach of agreement - so I've given evidence 13

of breach of agreement and damages.

I'm just conscious I

14

haven't done enough in respect of my counter claim

15

against Hanlon & Harwood Andrews.

16

Your Honour.

I'm thinking aloud

Even within - - -

17Well I suggest to you, you pause and think rather than thinking 18

aloud?---Thank you Your Honour.

19MR DEVRIES: 20

Your Honour I'm very hesitant to do this but could

we have a five minute break while he does that?

21HIS HONOUR:

I think what we'll do - yes I agree with that.

22

I'm hesitant to.

We'll have a five - - - ?---Is five

23

enough Your Honour?

24Sorry, do you want ten?---I would like to go to the bathroom as 25

well Your Honour.

26Well what we'll do is we'll have a ten minute break while you 27

go to the bathroom and just consider whether you have put

28

in all the evidence that you wish to put in in relation

29

to the issues that have been pleaded in writing in this

30

case and then we'll commence and at long last have some

31

cross-examination?---Thank you Your Honour.

1.LL:KG 09/12/08 2Cressy

FTR:1

156

DISCUSSION

1I'll be back in exactly ten. 2

(Short adjournment.)

3WITNESS:

Thank you, sir.

Your Honour, I have a list of points

4

I think I need to address but it's not a long list.

I

5

need to find for you the exhibit for the Cinnamon Theory

6

business name, which I will find during the luncheon

7

interval if that is acceptable.

8

something about my exhibits earlier today, my

9

communications to David Hanlon at Harwood Andrews in

I believe I need to say

10

particular, of October 2007.

11

enough to demonstrate a basis for - maybe this is - I

12

don't know if it's for this hearing, Your Honour, or for

13

the costs hearing after Your Honour gives judgment.

14MR DEVRIES: 15

I believe I need to say

Perhaps if you just give evidence rather than tell

Your Honour what he might or might not be doing.

16HIS HONOUR:

I agree with that?---I have foreshadowed that I

17

will be seeking an order for costs against Ms Cressy's

18

previous and current legal teams on the basis that

19

Ms Cressy is unable to meet any such orders.

20You foreshadowed that about 25 minutes ago?---Yes, Your Honour, 21

on the basis that - - -

22MR DEVRIES:

This is not evidence Your Honour.

23HIS HONOUR:

I agree with that?---I need to work out - - -

24MR DEVRIES:

And I object to him using the witness box as a

25

rostrum, Your Honour.

26HIS HONOUR:

I can perceive it is being used as a rostrum, it

27

is not evidence, it is not advancing the case, it just

28

goes to more intentional time wasting to my perception.

29

Mr Johnson, you have exhibited an outstanding ability

30

when you really want to to stay relevant and give

31

admissible evidence.

1.LL:KG 09/12/08 2Cressy

FTR:1

It seems to me when you persist in 157

DISCUSSION

1

remaining irrelevant and disobeying - disregarding my

2

directions you are doing it intentionally, there can be

3

no other perception or inference available to me.

4

does you no good in this proceeding in terms of your

5

credit or any other way.

6

your case and I said to you a while ago you will not wear

7

me down.

8

---Your Honour, I feel misdescribed, I'm sorry.

That

You are simply not assisting

Others have tried and have dismally failed?

9I wouldn’t bother trying?---It is my claim against the second 10

and third defendant by counter-claim that they committed

11

fraud against me because - not because I had actual

12

knowledge that Ms Cressy's claim against me was worthless

13

but because they were reckless and they ought to have

14

known that if they carried out the proper professional

15

investigations, particularly when I put them on

16

notice - - -

17That is not - what paragraph in your counter-claim was that? 18

---Paragraph 26 Your Honour.

19MS SOFRONIOU: 20

I object to that, Your Honour, that's only

referring to particular action with respect to a caveat.

21HIS HONOUR:

It's one caveat?---Yes, Your Honour, which they -

22

but for their recklessness ought to have known was a

23

caveat of no merit Your Honour.

24That's just simply a speech, that is not evidence?---Given the 25

disclosures that I made that's the Latin phrase "it

26

speaks for itself", Your Honour, they were on notice to

27

inquire and they failed to inquire, they closed me out.

28MR DEVRIES:

These are all submissions Your Honour.

29HIS HONOUR:

I agree?---Are they Your Honour?

30Well, quite obviously they are?---Well, again I am not sure 31

where the boundary is between the submission and the

1.LL:KG 09/12/08 2Cressy

FTR:1

158

DISCUSSION

1

evidence.

2You have - when you really try you seem to have a very good 3

understanding of the boundary?---Perhaps I have done

4

enough to put those communications in evidence already,

5

Your Honour, the fact that they left my desk.

6

response back from Mr Hanlon at Harwood Andrews.

I got no

7You have already given evidence as to the sending of those 8

communications, you have given evidence that you have not

9

received a response to them?---Yes, Your Honour, so

10

perhaps I have done enough then in terms of evidence in

11

these proceedings to ground my forthcoming application

12

for costs.

13That is not a matter of evidence, the comment you are making. 14

If you wish to think, think to yourself?---Thank you,

15

Your Honour.

16It is a dangerous habit to think out loud.

Have you completed

17

the evidence you are going to give in chief?---I still

18

have to produce some exhibits to you, Your Honour, the

19

Cinnamon Theory Australian Business Number registration

20

information, the settlement figures for the auction.

21Yes, well, you will be permitted to do that provided the delay 22

is not untoward?---Thank you, Your Honour.

I wish to

23

also table in evidence my income tax return for

24

2007/2008.

25

be grateful to find during the luncheon break.

I do have a copy here somewhere which I would

26The last financial year?---Yes, Your Honour. 27MR DEVRIES: 28

Honour?---Yes, Your Honour.

29HIS HONOUR: 30

I'm more than happy for my friend to table it Your

Yes, all right?---The period where my earnings

have been annihilated by these activities.

31Well, Mr Devries has said that he will accept tender of that? 1.LL:KG 09/12/08 2Cressy

FTR:1

159

DISCUSSION

1 2

---Thank you, Your Honour.

3MR DEVRIES:

And he can do it during cross-examination.

4HIS HONOUR:

Yes.

5MR DEVRIES:

I will have no questions that - - -

6HIS HONOUR:

You can produce that straight after lunch?

7

---That's kind.

8And I will receive that as an exhibit?---That's kind, Your 9

Honour, and then that will be evidence as to my damages

10

in respect of all three of my counter claims.

I have the

11

other issue that I raised, was my desire to bring

12

application under the relevant provisions of Chapter 4, I

13

believe it is, of the Legal Practice Act.

14That's got nothing to do with the pleaded - - -?---According to 15

the Legal Services Commission it does, because I can

16

raise them only with you, Your Honour.

17

them - - -

18You cannot raise matters with me.

I cannot raise

I am here to hear the

19

counter claim.

Now, again you are time wasting.

You are

20

playing for time?---Under the constraints, Your Honour, I

21

believe I have achieved all I can accomplish in evidence

22

in chief.

23Right, well, if that's the completion of your evidence in 24

chief, Mr Devries, your cross-examine.

25
evidence you stressed to His Honour that you've been a

28

practitioner of this court for some 18 to 19 years.

29

that correct?---Yes.

Is

Yes, Mr Devries.

30Your Honour, he's going to distract himself with all 31

his - - -?---I'll only be one - - -

1.LL:KG 09/12/08 2Cressy

FTR:1

160

DISCUSSION

1If they could be just removed back to the bar table, it might 2

make life easier for Mr Johnson and myself?---I'm

3

finished, Your Honour.

4HIS HONOUR:

Right?---I just wished to keep a note of the

5

questions and answers.

That's all, Your Honour.

6

defence counsel alter ego, in case I need to raise

7

any - - -

8You do not have an alter ego at all. 9

Now, you will simply

listen to the questions and answer them.

10MR DEVRIES:

In my

Mr Devries.

You have stressed to the court on a number of

11

occasions that you understand your duty of candour to the

12

court as an officer of the court, haven't you?---I

13

understand that I have exactly the same duties as you do,

14

Mr Devries, yes.

15You've stressed to this court that you understand your duty of 16

candour to the court, haven't you, on a number of

17

occasions?---As a legal practitioner for 18 and a half

18

years in the non-litigious field, yes, I believe I have a

19

good understanding, subject to that qualification.

20And you expect the court to be able to rely on everything that 21

you tell the court, whether orally or in writing, that

22

it's the truth?---Yes, I expect anybody either inside or

23

outside this court can rely 100 per cent on anything that

24

I say, whether written or orally.

25And you've told His Honour on a number of occasions that you're 26

a man of detail, haven't you?---Yes, and I think His

27

Honour readily acknowledges that.

28It's almost to a point of obsession with you, isn't it, to get 29

your detail correct, to get it before the court.

30

agree or disagree with that proposition?---I am admired

31

for my ability to keep a good handle on the little things

1.LL:KG 09/12/08 2Cressy

FTR:1

161

Do you

DISCUSSION

1

as well as the big things.

As to an obsession, if that's

2

asking me to diagnose myself in some psychological way,

3

I'm not qualified to do that, Mr Devries.

4What His Honour can rely upon is that if you prepare any 5

written material for this or any other court, you've gone

6

over it with a fine tooth comb before you completed it.

7

Is that correct?---It can be assumed, whether it's for

8

this court or for any other purpose, legal or commercial

9

or otherwise, I'll have done my very best.

What can't be

10

assumed is that I've had zero constraints.

I may have

11

been under enormous pressures and constraints, and they

12

may be reflected in the final product.

13

ability.

14

the raw materials that I have in respect of the task.

It's not just my

It's the constraints of the environment, and

15So any written document, any affidavit you've made in either 16

this court or any other court is accurate in every

17

respect, is it?

18

you well know, I can't speak about any affidavits in

19

Federal Magistrate O'Dwyer's jurisdiction in these

20

proceedings because I'm at risk while certain

21

extraordinary orders remain unchallenged by me of two

22

years imprisonment or $20,000 fine.

23HIS HONOUR:

Can we rely on that?---Mr Devries, as

You are entitled to say whether in any affidavit

24

filed in this court or any other court, you have taken

25

care to tell the truth and to be accurate?---I believe,

26

subject to that constraint of Federal Magistrate

27

O'Dwyer's orders of 9 September this year, I believe I've

28

already answered that in my previous responses.

29

will do my best, given the materials and the environment

30

and the constraints that have been imposed on me.

31MR DEVRIES:

Yes, I

You're not prepared to give me a direct answer to

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DISCUSSION

1

that question or probably any other question.

2

correct?---No.

Is that

3I'll keep asking you the same question until you answer it, or 4

until with respect, His Honour tells me I've asked it

5

enough.

6

affidavit made by you, the affidavit is to the best of

7

your knowledge at the time you made it, true and correct

8

in every particular?---Yes.

9Thank you.

Can the court rely on the fact that in any

And you want the court to believe that in your

10

dealings with other people, you have been honourable,

11

honest and straightforward in every respect, don't you?

12

---Yes.

13Now, the properties that are the subject of your summons that 14

was referred by Master Evans to this court, are they the

15

only properties in which you have, as of today, any

16

interest, legal, beneficial or otherwise?---I think so.

17Think carefully.

Think very, very carefully, Mr Johnson.

Are

18

those properties that you've told His Honour about and

19

are listed in this summons, are they the only properties

20

in which you have any legal or beneficial interest?

21

---According to the principles in, I think it was

22

Caldor v. Meade, it's an 1867 Chancery case when you

23

enter into a contract of sale and you pay a deposit you

24

become the beneficial owner in equity of the property

25

that you purchase, subject to the vendor's rights as an

26

unpaid vendor for completion.

27

two other properties which I may have but probably don't

28

have such a beneficial interest.

29

apartments like Gibson Street, a pair of them in

30

Brunswick which I signed up for and was given

31

Commonwealth Bank loan approval.

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163

On that basis there are

They are off the plan

At the same time that I DISCUSSION

1

organised for Mr Ioannou the funding, the refinancing of

2

Gibson Street and the purchase of Torquay.

3

track of that particular project.

4

interest I have in those two apartments has been

5

extinguished as a result of that.

6

any court process chasing me up as a delinquent

7

purchaser.

8

end the properties that I described in my summons that

9

was heard and adjourned by Master Evans are the only

10

Now I've lost

I believe that any

I have not received

I believe that's at an end.

If that's at an

properties in which I Have any legal beneficial interest.

11So the answer in a nutshell is that you have had or may still 12

have an interest in two properties in Brunswick?

13

---The answer is I'm 99 per cent sure that I don't have

14

that interest.

15

application before Master Evans lists all of the

16

properties in which I have an interest in the

17

(indistinct).

Subject to that qualification my

18Did you purchase those Brunswick properties?---Mr Devries I 19

signed contracts, I got Commonwealth Bank pre approval

20

for the purchases.

21

over $1m for the pair.

22

them.

23

think I might even have copies of them in court with me

24

if they want to be tendered in evidence.

25

believe those contracts have simply been cancelled.

26

forfeited my $2000.

27

communication since that date I signed the contract.

28

think they're a nullity.

29

those contracts if that's of any value to anybody but I

30

think they're at an end, a nullity by now.

In total they, they're worth a bit I paid $1000 deposit for each of

That's as far as I've taken the proceeding.

I

As far as I I

I've nothing in writing, I've had no I

I'm happy to tender copies of

31In the course of - I was asking you about the affidavits that 1.LL:KG 09/12/08 2Cressy

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164

DISCUSSION

1

you've made in your desire to or your expectation the

2

court would accept (indistinct), you've made about 15

3

affidavits in the course of these proceedings and the

4

Family Law proceedings haven't you?---No it would be more

5

than that.

6

Law proceedings but I think it's 13 affidavits in these

7

proceedings mostly in response to - hurried response, a

8

few days notice of Practice Court hearings in these

9

proceedings which were based on applications initiated by

I'm not at liberty to talk about the Family

10

your instructor or his predecessor in the first two

11

instances for your client.

12

constraints under which I prepared them.

13

until a Friday afternoon - - -

There were considerable I was also

14Mr Johnson - - - -?---- - - under the belief that they were in 15

evidence.

16HIS HONOUR:

Mr Johnson you know you're not to make speeches.

17

You're simply to answer the question.

You were asked as

18

to number of affidavits you had sworn.

19

have sworn a large number of affidavits in the

20

proceeding?---I think it might be perhaps 15 in these

21

proceedings and there's 30 something - 36 I think

22

exhibits Your Honour.

Do I take it you

23Right. 24MR DEVRIES:

And you know don't you Mr Johnson that it's an

25

absolute nonsense for you to say that you can't answer

26

questions that I ask you in this proceeding because of

27

the injunction of Federal Magistrate O'Dwyer.

28

correct isn't it?---I know nothing of the sort

29

Mr Devries.

30

put on the table before Federal Magistrate O'Dwyer on

31

8 September 2008.

1.LL:KG 09/12/08 2Cressy

That's

These were orders that you drafted up, you

FTR:1

I had an application the Federal 165

DISCUSSION

1

Magistrate O'Dwyer withdraw from the proceedings for

2

actual or perceived bias.

3

I did not feel comfortable with being under the

4

jurisdiction of Mr O'Dwyer whom I still hold in high

5

regard notwithstanding.

6

out several weeks later that in my absence - - -

He dismissed that application.

I then walked out.

I then found

7Sorry if I can put - - 8HIS HONOUR: 9

You haven't answered the question.

doing - - - ?---I know, I - - -

10- - - any justice. 11

Just focus on the question and answer the

question?---Thank you Your Honour.

12MR DEVRIES: 13

Now you're not

You've said that you hold Federal Magistrate

O'Dwyer in high regard?---Yes.

14Despite the fact that in other proceedings in other 15

correspondence you've called him incompetent, corrupt and

16

various other things, even worse than that and that

17

you've joined him in this other proceeding?---I - - -

18You still hold him in high regard despite the fact that you've 19

joined into proceeding where you're seeking $11m plus

20

worth of damages.

21

His Honour isn't it?

22HIS HONOUR:

That is a lie that you've just told

Well you've - - - ?---I hold - - -

23- - - there's two questions - you've asked two questions in 24

one.

25MR DEVRIES:

I apologise.

26HIS HONOUR:

Yes.

Ask the first question first?---I hold

27

Federal Magistrate O'Dwyer in high regard.

28

difficult job.

29

obviously very intelligent and he means well in his job

30

but he relies heavily on the quality of the counsel that

31

appear in cases before him.

1.LL:KG 09/12/08 2Cressy

He has a very

He has an enormous case load.

FTR:1

166

He is

Now if that quality of that DISCUSSION

1

counsel appearing before him is a little bit lacking or

2

slippery he's going to be misled in the sheer volume of

3

case load that he needs to go through.

4

the - - -

So I see

5We really are straying from the issues in this case?---And I'm 6

not at liberty to discuss those under Order 8.

7

quite clear Order 8 of the - - -

It's

8Just a moment - - - ?---- - - Federal Magistrate O'Dwyer's 9

orders.

10Just a moment. 11

Just listen.

You ask some questions relating

to this case.

12MR DEVRIES:

Sorry?

13HIS HONOUR:

Let's try and stay relevant.

14MR DEVRIES:

Your Honour I'm exploring some credit issues.

15HIS HONOUR:

Well did you write some correspondence describing

16

Federal Magistrate O'Dwyer as incompetent and corrupt?

17

---I put together an affidavit in those proceedings which

18

I'm not at liberty to speak about while those orders

19

are - - -

20No, just answer the question.

Did you write some

21

correspondence in which you thus described Magistrate

22

O'Dwyer?---I am not sure, I hope I didn't make the

23

attacks against Mr O'Dwyer, the man, as opposed to the

24

product of the work, the orders that were made denying me

25

natural justice, appearing to usurp section 121, the

26

powers of the Federal Parliament and the role of the DPP.

27All right. 28

I do not regard that as a responsive answer and I

will view it accordingly.

29MR DEVRIES:

Certainly.

Mr Devries, you continue.

Now, Mr Johnson, let me see if I

30

understand your case properly.

31

you have never lived with my client, is that correct?

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167

Part of your case is that

DISCUSSION

1

Never lived together with my client?

2HIS HONOUR:

No, in fairness the witness has not said that.

3MR DEVRIES:

Sorry, Your Honour, with respect there is a

4

particular reason I am asking the questions - the

5

particulars of them.

6HIS HONOUR:

All right.

7MR DEVRIES:

I will withdraw the question with respect, Your

8

Honour, and I will come back to it in a slightly

9

different way.

10HIS HONOUR:

Right.

11MR DEVRIES:

You say that you have never lived with my client

12

in a domestic relationship for even one day, is that your

13

case?---I don't understand the question, Your Honour, how

14

could you have a domestic relationship for one day?

15HIS HONOUR: 16

Don't ask me a question, have you lived in a

domestic relationship at any time with the plaintiff?

17MR DEVRIES:

For any period of time?

18HIS HONOUR:

Any period?---There was a period where Ms Cressy

19

and I were the only adults living in the house at

20

Nicholson Street, South Yarra with Ms Cressy's three

21

children, the youngest of which is represented by all but

22

not conclusively, scientifically proved to be my child.

23

I believe that period of co-habitation is open to a

24

variety of opinions as to whether it was a domestic

25

relationship - - -

26Did you live together as a couple?---I believe that that 27

relationship is open to a variety of interpretations.

28

don't frankly know the answer.

29

and it changes with time as you look back and

30

particularly having regard to some other relationships

31

that Ms Cressy had going on at the time, I think not.

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168

I

My best judgment on it,

I

DISCUSSION

1

think not.

2MR DEVRIES:

Is it your - - - ?---But I could accept a finding

3

if Your Honour was to make it, a finding that yes we were

4

for that period, because it is murky and it's a question

5

of opinion and reasonable minds can form any number of

6

reasonable opinions.

7It's your case, isn't it, that you have never lived in a 8

domestic relationship at any time, for any period of

9

time, isn't it?

Isn't that your case today before His

10

Honour?

11

---My case, Mr Devries, I think is - - -

12Just answer it yes or no, is that your case today before His 13

Honour that you have never, ever lived in a domestic

14

relationship for any time, for any period at any time,

15

yes or no, Mr Johnson?---Except as qualified by my

16

previous answer, the simple one word answer is yes.

17Well, you know your case better than anyone else.

So you

18

agreed with me that - - - ?---Is that a question, Your

19

Honour, I think the answer to that was yes?

20You agree with me that you have never - that your case is that 21

you have never lived together in a domestic relationship?

22

---My case is that a reasonable mind could form a

23

reasonable opinion - - -

24Just say yes or no to the answer - - - ?--- - - - that South 25 26- - -

Yarra was a domestic relationship. don't give us a speech Mr Johnson?---But my case is that

27

no, that opinion is not my opinion, I have never lived in

28

a domestic relationship with Ms Cressy.

29Would you say that you, in your words, have ever lived 30

together?---I've lived in a number of share homes over

31

the years, Mr Devries, was that what your question was

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169

DISCUSSION

1

after?

2Would you say, to use your words, would you say that you have 3

ever lived your words, to use those words, with my

4

client?---I have given evidence-in-chief that we lived

5

under the one roof at Nicholson Street, South Yarra for a

6

period of approximately two years.

7When did that start and when did that end?---I gave evidence8

in-chief - - -

9Just answer the question please without a speech?---Around 10

about May 2001, May or June 2001 up until March 2003 and

11

then for a period from March 2003 with both Ms Cressy's

12

and all five children, at Dorrington Street in Point

13

Cook.

14Until?---Until late July, perhaps very early August it might 15

have been in the transition of 2003.

16So I would be wrong if I said that you and Ms Cressy lived 17

together from December 1998 to January 1999 and from May

18

1999 to June 2007, would I?---Yes.

19And anyone else who says that would be totally wrong too, 20

wouldn’t they, in your opinion?---Except for what I said

21

in respect of the period at Nicholson Street, South

22

Yarra.

23I'm talking about that statement that Ms Cressy and you have 24

lived together from December 1998 to January 1999 and

25

from May 1999 to June 2007?---Consistent with my other

26

answers, yes, I believe that is wrong in both those time

27

frames, but a reasonable mind might draw a different

28

conclusion.

29

Honour, I was seeking to contact Mr Thompson during the

30

ten minute break previously.

31HIS HONOUR:

Forgive me Your Honour.

Excuse me, Your

Just complete your answer to that then?---I would

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170

DISCUSSION

1

like to answer this as clearly and simply as I can.

2

both of those periods, my opinion is that that is totally

3

wrong.

4

- and I can understand outsiders being confused.

5

period that we would domicile at Nicholson Street, South

6

Yarra - - -

7MR DEVRIES:

For

I am a little bit confused myself in respect of

I'm talking about a broader period.

For the

First of all

8

from December 1998 to January 1999?---Mr Devries, as long

9

as I'm not misquoted because of what I've said a number

10

of times about the South Yarra residence and the first

11

four months at Point Cook - - -

12You weren't living in South Yarra or Dorrington Street - - -? 13

--- I'm happy to say - totally wrong.

14What about the whole of the period from May 1999 to June 2007? 15

---Again, as long as I'm not taken out of context about

16

the period of the two or the three adults and the three

17

or five children living at South Yarra or the first half

18

of the 2003 financial year at Point Cook, please allow me

19

to carry forward those explanations.

20

those, I would say anyone who said that we were living as

21

a domestic couple from December 1998 to January 1999 were

22

wrong or from May 1999 to June 2007 would be wrong also.

23HIS HONOUR: 24

But, subject to

Is that a convenient time, or do you wish to wrap

this up?

25MR DEVRIES:

I think that might be a convenient time

26

Your Honour.

27

up.

28HIS HONOUR:

I'd go for five or ten minutes to wrap it

I think we'll break?---Thank you, Your Honour.

29Mr Johnson might be able to get hold of Mr Thompson in that 30

time.

Can we cut lunch short by five minutes?

31

inconvenience anyone, it's just we've lost a lot of time

1.LL:KG 09/12/08 2Cressy

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171

Does that

DISCUSSION

1

- ten past two?

2MR DEVRIES:

We're still finishing at 4.15, Your Honour?

3HIS HONOUR:

Yes.

4<(THE WITNESS WITHDREW) 5LUNCHEON ADJOURNMENT

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DISCUSSION