Brothel Gate Day 7 Am
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- Pages: 93
1MR DEVRIES:
The matter's still proceeding, Your Honour.
2HIS HONOUR:
Thanks, Mr Devries.
3
Thank you, sir.
May I just report quickly, Your
5
Honour?
6
court at 2.15 today to explain his efforts, unsuccessful
7
to date, to have Mr Wittekind come to give evidence in
8
respect of that affidavit of service for Peter Cockram.
9HIS HONOUR:
I've organised for Mr Thompson to return to
Is Mr Wittekind avoiding Mr Thompson?
10MR JOHNSON:
He is.
11HIS HONOUR:
Yes or no?
12MR JOHNSON:
Yes, yes, serious misconduct, Your Honour.
13HIS HONOUR:
If you can't get him to court he can be subpoenaed
14
and I will abridge times for service of the subpoena, if
15
it assists you.
16MR JOHNSON: 17
You can have a subpoena served - - -
Thank you, Your Honour.
discussed that this morning.
18HIS HONOUR:
Mr Thompson and I
I could - - -
Ordinarily I think you have to serve it five days
19
before he attends.
20
it's necessary.
I'll abridge that time 12 hours if
21MR JOHNSON: Thank you, Your Honour. 22MR DEVRIES: 23
Your Honour, can I ask what's that going to do
with respect to the timetable in this matter?
24HIS HONOUR:
It's going to cause difficulties.
25MR DEVRIES:
I must say at this stage, sir, I've got enormous
26
problems; almost insurmountable problems next week.
27HIS HONOUR:
Mr Devries, this case was set down on a two days
28
estimate.
29
That estimate has proven to be entirely unrealistic.
30
have great problems to but I'm going to sit until this
31
case finishes.
1.:CS 10/12/08 2Cressy
I assume that estimate came from your side.
FTR:1
I
Now, I'm sorry about that but this is 236
DISCUSSION
1
going to have to happen.
2
lose time like we have every other time.
3MR DEVRIES: 4
I'll be out of the jurisdiction for part of next
week, Your Honour.
5HIS HONOUR: 6
If we debate that now we'll
It's unavoidable.
I'll be sitting.
I'm sorry, Mr Devries, but this
case will sit until we finish it.
7MR DEVRIES:
If Your Honour pleases.
8HIS HONOUR:
But hopefully we can finish it this week whatever
9
we do and if necessary, well, I'll extend out further.
10
see no reason why we can't if we stop debating these
11
minor issues and focus on the major ones.
12MR DEVRIES:
I
If Your Honour pleases.
13
2007/2008 this morning.
16
---Yes, Your Honour.
I call upon those documents?
Before I do I'm concerned - - -
17Have you got those documents, Mr Johnson?---I have those 18
documents with me.
19Would you please produce them, Mr Johnson?---I just want to 20
clarify the rules as to how the documents might be used
21
once they're produced?
22HIS HONOUR: 23
They may only be used for the purposes of these
proceedings?---I have - - -
24MR DEVRIES: 25
We've been through that in respect of other
documents, Your Honour.
26HIS HONOUR: 27
Just a moment?---These are very sensitive
documents of mine including tax file numbers.
28What is your concern?---My concern is that the documents not be 29
copied and given to any persons not involved in the
30
proceedings.
31
be given with possession to the plaintiff.
1.:CS 10/12/08 2Cressy
I have a particular concern that copies not
FTR:1
237
I appreciate DISCUSSION
1
my learned friend and his instructor may need to discuss
2
some of the contents with their client to get
3
instructions, and by all means – but I ask that no copies
4
of these documents be left – no capacity for copies of
5
these – this document be left with the plaintiff to take
6
a copy or obtain possession of a copy outside the court.
7I think that's a fair request, Mr Devries. 8MR DEVRIES: 9 10
I only wanted it for the purposes of examination –
sorry, cross-examination of Mr Johnson.
I may need a
photocopy until I've finished my final address.
11HIS HONOUR:
For your purposes?
12MR DEVRIES:
For my purposes and also my instructor's purposes.
13
I'm happy to give an undertaking to Your Honour that I
14
will not show any part of the document to anyone other
15
than my instructors and perhaps my learned friend,
16
although I can't see myself showing it to my learned
17
friend.
18
I've finished my – sorry, after Your Honour's handed down
19
your decision in this matter that whatever copies my
20
instructor and I have taken will be either returned to
21
Mr Johnson or destroyed.
22HIS HONOUR:
I'm also happy to give an undertaking that when
23MS SOFRONIOU:
Thanks, Mr Devries.
24
If it's any comfort, Your Honour, I don't need
to see them.
25HIS HONOUR:
Thank you, Ms Sofroniou.
(To witness) Now, you've
26
been asked to produce the document?---Your Honour, yes.
27
May I also say that Your Honour gave Mr Devries
28
considerable latitude in cross-examination last night.
29
Going into areas which I myself had doubts as to
30
relevance.
31
evidence-in-chief specifically on this tax return, so I'm
1.:CS 10/12/08 2Cressy
I did not get an opportunity to give
FTR:1
238
DISCUSSION
1
just asking for and – and I fully expect that Your Honour
2
will allow me a similar latitude in re-examination - - -
3HIS HONOUR:
I won't allow you latitude but you'll be entitled
4
to address any matters that are raised in
5
cross-examination.
6
re-examination you'll be able to do so and Mr Devries?
7
---Yes, thank you, Your Honour.
8
Ms Sofroniou having a copy of the tax return either.
If you need to clarify them in
I have no concern with
9At the moment she hasn't asked to do so. 10MS SOFRONIOU: 11WITNESS:
I don't need them.
Thank you.
12HIS HONOUR:
May I tender?
At the moment all that is required is if you could
13
provide a copy to Mr Devries for him to look at?---I said
14
I'd tender it as an exhibit in evidence, Your Honour.
15
That was what I said during evidence-in-chief.
16I think that's right actually.
He did.
Yes, before he
17
completed his evidence-in-chief my recollection – or it
18
might've been while he was under cross-examination he
19
offered to tender it?---It was before the lunch break,
20
Your Honour, and I agreed to locate a copy and produce it
21
after lunch.
22MR DEVRIES:
I'm just calling upon him to do that, Your Honour.
23
I agree with that, Your Honour, and that's my
24
recollection as well.
25
copies of that exhibit?---I do, Mr Devries, including a
26
copy for Ms Sofroniou if she would like to - - -
(To witness) Do you have multiple
27HIS HONOUR: Thanks, Mr Richards. 28 29#EXHIBIT 45 Individual tax return of the defendant, 30 Harold James Johnson, for the financial 31 year ending 30/06/08. 32WITNESS: 33
Forgive me, Your Honour, I don't recognise the
exhibit numbering.
1.:CS 10/12/08 2Cressy
FTR:1
I thought it would be Exhibit K. 239
DISCUSSION
1
Does it come back to - - -
2HIS HONOUR: 3
Well, you're really tendering - - -?---Yes, Your
Honour.
Again, I'm not - - -
4I'm not going to argue about it.
It doesn't really matter
5
whose exhibit it is.
I've made it Exhibit 45 and it will
6
remain thus?---I've just lost a page of my notes.
7
couldn't identify 45 as being the next number in that
8
sequence but I'm sure it's correct.
I
9It is?---Thank you, Your Honour. 10MR DEVRIES:
I'll need to spend a few minutes looking at it,
11
but I won't do that now, Your Honour.
12
appropriate stage in the proceedings.
Perhaps at an
13HIS HONOUR:
Yes.
14MR DEVRIES:
Now, Mr Johnson, you were going to produce your
15
motorcycle drivers licence, have you got that with you?
16
---Your Honour, before I do this and I am not suggesting
17
there is any impropriety in this - - -
18Have you got it with you, Mr Johnson?---I just - before I - - 19HIS HONOUR: 20
The first question is, do you have it?---Your
Honour, yes I do.
21Yes. 22MR DEVRIES:
I ask you to produce it.
23HIS HONOUR:
You have been asked to produce it, do you have an
24
objection?---I'm not sure, Your Honour, and I am not
25
suggesting any impropriety here, I just want to
26
understand the rules by which a witness can be asked to
27
turn out his pockets and divulge the contents of those
28
pockets.
29
understand that.
I am not suggesting any impropriety, I want to
30There's a ruling, it is a relevant issue, then he can be 31
requested to bring it, you have brought it to court, do
1.:CS 10/12/08 2Cressy
FTR:1
240
DISCUSSION
1
you produce it to Mr Devries?---Your Honour, do those
2
rules apply to witnesses generally or defendants under
3
cross-examination or to me as a special case as an
4
officer of the court of 18 years plus good standing.
5Mr Johnson, you have complied with the request made of you by 6
Mr Devries to produce your licences, you have brought
7
them to court, you say you have them in your possession,
8
it applies to any witness, would you produce that now to
9
Mr Devries?---Thank you, Your Honour.
10I regard your conduct this morning again as being a repetition 11
of yesterday's and you do yourself no credit in my eyes?
12
---Your Honour, I just wish to understand - - -
13Would you produce it please?---I wish to understand if I was 14
under a lawful obligation and if so what was the basis.
15Would you just produce it please?---As defence counsel I 16
question the relevance.
17
my pocket.
I have several documents out of
18You have been asked to produce, as I understand it, 19
your - - - ?---I would like to raise - - -
20- - - motorcycle licence and your motor vehicle licence. 21MR DEVRIES:
Yes, I had specifically asked for the motorcycle,
22
but I was then going to move on to the driving licence
23
but if he's got both if he can produce that as well?---I
24
don't have the driver's licence but I will hunt this
25
evening.
26Did you hunt for it yesterday evening?---I did, I actually 27
looked this morning but it wasn't immediately to hand.
28HIS HONOUR:
Do you not carry it on you?---I carry the learners
29
permit with me, Your Honour, and the number is the same.
30
The photo is closer to how I look today than when I did
31
back in - - -
1.:CS 10/12/08 2Cressy
FTR:1
241
DISCUSSION
1How do you get to Geelong?---There are various means including 2
a train service.
3Do you drive?---On occasions, sir. 4Do you carry your licence with you when you do that?---Not 5
always, Your Honour.
6Mr Richards, could you hand that licence to Mr Devries?---May I 7
hand all four of these please.
8
exhibits, Your Honour.
9MR DEVRIES: 10
I would ask they go in as
I don't know why I have been handed three
extraneous documents Your Honour.
11HIS HONOUR:
What document answers the call?
12MR DEVRIES:
The learners permit.
13HIS HONOUR:
The other three documents can be handed back, the
14
extraneous ones are extraneous to the call.
15MR DEVRIES: 16
I am quite happy to hand back the learners permit
Your Honour.
17HIS HONOUR:
Yes.
Now, you wish the learners permit to be
18
tendered do you Mr Johnson?---I wish all four of these to
19
be tendered, Your Honour.
20What are the other documents?---The one is a Medicare card 21
which is ancient which lists all of the residences - - -
22No, you haven't been asked to produce that but so far as the 23
document answers the call and it's been inspected by
24
counsel, that can be tendered.
25
learners permit as Exhibit 46?---Thank you, Your Honour.
26
May I just say that the document Mr Devries - - -
27Just a moment. 28 29#EXHIBIT K 30
I will receive your
Learners permit no.032685419 of the defendant.
31Thank you, Mr Devries. 32MR DEVRIES: 1.:CS 10/12/08 2Cressy
Mr Johnson, if I can put you fairly and squarely FTR:1
242
DISCUSSION
1
on notice that I will be submitting to His Honour when I
2
get to my address that your failure to produce your
3
drivers licence should be inferred by His Honour as
4
meaning that the document does not assist you with
5
respect to your evidence concerning your addresses.
6
will be submitting to His Honour that you are trying to
7
hide that document from the court; do you understand?
8
---My answer is that that is totally incorrect.
9
to bring it with me to court tomorrow morning Your
10
I
I hope
Honour.
11I am putting you on notice, I am not asking you to comment. 12HIS HONOUR:
Mr Devries is simply putting you on notice of a
13
submission he will make in final address under the rule
14
of Jones v. Dunkel?---I have said twice this morning I
15
hope to bring that drivers licence to court tomorrow
16
morning Your Honour.
17Right?---I will hunt several places tonight to find it Your 18
Honour.
19MR DEVRIES:
While we are on issues of Jones v. Dunkel,
20
Mr Johnson, I understand that you don't intend to call
21
any of you ex-employees to court, is that correct?---My
22
understanding is that the plaintiff has to prove their
23
case - - -
24Is that correct?---I don't need to disprove her case. 25Is that correct or incorrect?---That is correct, Mr Devries. 26So you want be calling the office lady that you had who could 27
have given evidence to His Honour about you using the
28
Bourke Street premises as your residence?---I repeat I
29
don't have to disprove the plaintiff's case, the
30
plaintiff has to prove her case.
31HIS HONOUR: 1.:CS 10/12/08 2Cressy
Will you be calling that lady?---No, Your Honour. FTR:1
243
DISCUSSION
1What is her name?---Kathleen Doogan. 2Is she in Melbourne?---I have not had contact with her since 3
she ceased my employment in June or July 2007.
4Thank you. 5MR DEVRIES:
But as part of your employment records you would
6
have records of her address, her phone number and other
7
means of contacting her if you so wished, wouldn’t you?
8
---Yes.
9Be aware, Mr Johnson, that in the spirit of Jones v. Dunkel, 10
I'll be asking His Honour to draw the appropriate
11
inferences from you not calling her?---I shall read that
12
case this evening, Mr Devries.
13
if you have one handy?
14HIS HONOUR:
May I have the citation,
It's in the Commonwealth Law Reports.
The
15
principle which it adopts is this.
If a party fails to
16
call a witness or adduce a witness who that party might
17
be expected to do to support that party's case, then the
18
court may infer that that witness, or that evidence,
19
would not have been of assistance to that party.
20
court is not entitled to speculate what that missing
21
witness might have said, it can simply draw an inference
22
that that witness would not have been of
23
assistance?---I'm indebted for the explanation, Your
24
Honour.
The
25MR DEVRIES:
Thank you. You said to His Honour during your evidence that,
26
your ex-girlfriend, Stella, is still a good friend of
27
yours.
Is that correct?---I spoke with - - -
28Is that the - - -?---Yes, I spoke with her yesterday. 29Is that the evidence that you - Mr Johnson, do you have a 30
difficult this morning in understanding my
31
questions?---No greater difficulty than the day before,
1.:CS 10/12/08 2Cressy
FTR:1
244
DISCUSSION
1
Mr Devries.
2Can you tell His Honour why you are choosing not to answer my 3
very specific questions which very specific answers
4
directed to those questions?---I believe I answered your
5
question, yes, I am still good friends with Stella and
6
added the detail that I spoke with her yesterday.
7
actually the evening before - - -
It was
8Did I ask you any questions about when you last spoke to 9
her?---(No audible response.)
10Did I?---If I've done it wrong, I apologise, Your Honour and 11
Mr Devries.
12Mr Johnson, I'm hoping to get this cross-examination through 13
fairly quickly and I request you, earnestly request you
14
just to answer the questions I'm asking you.
15
calling Stella to give evidence, are you?---No,
16
Mr Devries.
You're not
17And she could give evidence about where you lived during such 18
relationship as you had with her, couldn't she?---Yes.
19And she could give evidence as to the nature of your 20
relationship; when it started, when it ended, couldn't
21
she?---Yes.
22HIS HONOUR:
Is Stella in Victoria?---Yes.
23MR DEVRIES:
And she's still in Melbourne, in fact, isn't
24
she?---Yes.
25And as you've just volunteered to His Honour a little while 26
ago, you're still in contact with her, aren't you?---Yes.
27Is there any reason why you can't - couldn't call her if you so 28
chose?---If we had a trial duration of three to four
29
weeks, that would certainly be a possibility, but again,
30
I question the relevance of that witness' evidence.
31Would you like to answer the question that I asked you?---I 1.:CS 10/12/08 2Cressy
FTR:1
245
DISCUSSION
1
think there was a yes in there, Mr Devries.
2Well, I didn't hear the yes - - 3HIS HONOUR:
The witness has answered the question.
4MR DEVRIES:
If Your Honour pleases.
5
(To witness) And you
still have dealings with your wife, don't you?---No.
6So what, you're not seeing the Johnson children anymore?---I 7
have not seen any of my children since the last weekend
8
in May 2008.
9What, none of Ms Johnson's children?---My estranged wife is 10
very upset with me because I've been unable to provide
11
any financial support to her and the children since about
12
the first or second week of June this year.
13This year?---This year, Mr Devries. 14You haven't subpoenaed her to come and give evidence, have 15
you?---No, I haven't, Mr Devries.
16And she too could give evidence as to what arrangements she had 17
with you regarding the Johnson children, as you've called
18
them, and - - -?---Yes, but the Johnson family relations
19
- relations are not an issue in this proceeding by any
20
stretch of the imagination - - -
21And she could give evidence as to where she delivered those 22
children and where those children spent their time with
23
you and under what circumstances they spent time with
24
you, couldn't she - - -?---I - yes, as set out in the
25
Michael Clarebrough report.
26And she could also give evidence as to the moneys that you've 27
provided her through the course of what my client alleges
28
is the relationship?---As again is set out, she could
29
corroborate the evidence in the Michael Clarebrough
30
report.
31Yes, you've chosen not to subpoena her, is that correct?---I 1.:CS 10/12/08 2Cressy
FTR:1
246
DISCUSSION
1
question again the relevance.
2
Ms Cressy's assertion - - -
What relevance to
3Just answer - - -?--- - - - of a domestic relationship between 4
Ms Cressy and I and what relevance do Ms Cressy's
5
assertions that she contributed financially to my
6
livinglihood (sic) or to my property portfolio.
7
relevance, Your Honour.
I see no
8Are you objecting to my question - - 9HIS HONOUR:
The defendant has in fact given an answer in an
10
implied way.
11
consider her relevant to his case.
12MR DEVRIES:
He is not calling her because he does not
If Your Honour pleases?---And we are under a - a
13
false estimate of a two day trial, Your Honour.
14
conscious of that and I said at the outset, I cut my list
15
of witnesses down from about 30 - - -
16HIS HONOUR: 17
I'm very
Mr Johnson, you have shown no consciousness of the
time constraints this court is under at all.
18MR DEVRIES:
If Your Honour would just bear with me, I'm trying
19
to locate a document.
Sorry, Your Honour.
I advised
20
Your Honour that I would produce the affidavit, or one of
21
the affidavit wherein Mr Johnson made the serious
22
allegations against Federal Magistrate O'Dwyer, including
23
the allegation of corruption and I intend to produce
24
that, one of those documents now, Your Honour.
25
witness) Mr Johnson, can you have a look at this
26
document?
(To
27HIS HONOUR:
What issue does this go to?
28MR DEVRIES:
I'm sorry?
29HIS HONOUR:
What issue does this go to?
30MR DEVRIES:
Well, Your Honour, Mr Johnson in his evidence said
31
that he had a high regard for Federal Magistrate O'Dwyer;
1.:CS 10/12/08 2Cressy
FTR:1
247
DISCUSSION
1
I put some questions to him and, as I understood it, the
2
situation was that I was going to produce the document
3
where Mr Johnson had made those allegations.
4
apart from anything else, to the credit of his evidence,
5
Your Honour.
6WITNESS:
It goes,
Your Honour, I believe this is of low relevance, but
7
I'm happy for that affidavit, plus all of the supporting
8
exhibits, to come into Your Honour's body of evidence
9
provided I'm given the same latitude in re-examination
10
and submissions, Your Honour.
11MR DEVRIES: 12
I don't intend to produce the exhibit, Your
Honour.
13HIS HONOUR:
I'm not prepared to accept the affidavit.
You can
14
ask a question in relation to it, and if you get the
15
right answer it's on an issue of credit, and that's it.
16MR DEVRIES:
If Your Honour pleases.
17HIS HONOUR:
You can put the document - - -
18MR DEVRIES:
Mr Johnson, did you file an affidavit in the
19
Federal Magistrates' Court on 20 August this year, being
20
an affidavit of two pages with a large number of
21
exhibits?---May I have a quick look at the document, that
22
application?
23HIS HONOUR: 24
You're asking the witness about a document, he's
entitled to look at it.
25MR DEVRIES: 26
I've got a spare document.
I have a spare copy
for Your Honour.
27HIS HONOUR:
I don't want to look at it.
If you wish to ask
28
Mr Johnson if he said a particular thing in the
29
affidavit, put it to him.
30
doubt he will accept that he said a particular thing and
31
we can move on.
1.:CS 10/12/08 2Cressy
FTR:1
If it's in black and white no
248
DISCUSSION
1MR DEVRIES: 2
Yes.
(To witness) Is that your signature at the
bottom of p.2?---Yes.
3And that's an affidavit that you filed in the Federal 4
Magistrates' Court on 20 August 2008?---Yes.
5And the affidavit was sworn on the same day?---Yes. 6And Subparagraph (2)(h) refers to, quote, "The improper, 7
unlawful, prejudiced, biased and corrupt conduct of
8
Mr Justice[sic] O'Dwyer in these Federal Magistrates'
9
Court proceedings", does it not?---Yes.
10HIS HONOUR: 11
You may put the affidavit down?---I'm sorry, Your
Honour?
12You may put it down.
You're finished with the affidavit?
13
---Yes, I wish to deal with this in re-examination and on
14
that basis I would ask that the affidavit, plus the
15
exhibits – it's basically - - -
16At the moment I won't proceed – it's purely on an issue of 17
credit; you've accepted you've said something and it
18
simply goes to an issue of credit.
19
collateral evidence on issues such as that, particularly
20
in a case where we ought to be focusing on the main
21
issues.
22MR DEVRIES:
If Your Honour pleases.
I do not accept
Thank you, Your Honour.
23
(To witness) Now, Mr Johnson, you said to this court at
24
the very beginning that you would not become bankrupt for
25
at least seven days, is that correct?---I made the
26
statement, which could be interpreted as an undertaking
27
from the Bar, that I would not file a bankruptcy petition
28
voluntarily before today, I think, I may have said
29
Wednesday.
30Is it your intention to file for bankruptcy, Mr Johnson? 31
---Mr Devries, I am doing everything possible to avoid
1.:CS 10/12/08 2Cressy
FTR:1
249
DISCUSSION
1
taking that step, and I have avoid – done everything
2
possible to avoid that step for the past year or more.
3Is it true that you said, by way of an affidavit filed in this 4
court sworn on 11 July, that you had filed for
5
bankruptcy?---No, that's not true, Mr Devries.
6You exhibited this document, didn't you?---Once again, we're 7
exhibiting one document out of a whole section of
8
material - - -
9Did you, or did you not, exhibit that one page which you said 10
was your filing for bankruptcy in your affidavit?---No, I
11
believe I said in the words in the affidavit, I was very
12
careful on this, bit of Lewis Carroll creeping in there,
13
I was very careful on this; I said, "attached is a
14
debtors petition."
15Signed by you, you said, didn't you, in your affidavit?---Yes, 16
but I have also said in several of the Practice Court
17
trials, I did not go on and file that debtors petition.
18Why did you exhibit that document if you did not want the court 19
to believe that you had filed for voluntary bankruptcy,
20
Mr Johnson?---I gave viva voce evidence several times in
21
the Practice Court that I had not filed that document, it
22
was my intention to do so.
23
prospect of looking at a three to four week trial, two to
24
three years from now, having this hanging over me all
25
that time; it was too much.
26
put the properties to a bankruptcy trustee and/or their
27
first registered mortgagees and let them deal with it.
28
would take the pain of being an undischarged bankrupt for
29
three years, not fully knowing what that meant, and
30
having the permanent mar of being a discharged bankrupt
31
on my record thereafter.
1.:CS 10/12/08 2Cressy
FTR:1
I had had enough and the
I was thinking I will just
I
I had organised with an 250
DISCUSSION
1
insolvency practitioner to be my bankruptcy trustee.
2
prepared this document – when I called to make an
3
appointment with my bankruptcy trustee - - -
I
4You have more than answered my question, Mr Johnson. 5HIS HONOUR:
Well, no, you asked a pretty wide question.
6MR DEVRIES:
I'm sorry, Your Honour.
7HIS HONOUR:
He's explaining the circumstances in which that
8
document came into existence, if it's got any relevance
9
in this proceeding.
10WITNESS:
I think it would assist if I continue the story now,
11
rather than re-examination.
12
trustee who was aware of my financials I got the
13
impression - - -
14MR DEVRIES: 15WITNESS:
This is hearsay now, Your Honour.
- - - (indistinct) of the telephone conversation.
16HIS HONOUR: 17
When I rang the insolvency
Well, it might not be because it goes to his state
of mind.
18WITNESS:
That my financial position was so grim – see, the
19
problem was I had no funds to engage legal counsel to
20
represent, as is obvious, whereas the bankruptcy trustee,
21
having first claim on the assets, could use the assets to
22
engage legal representation.
23
looking at my own financials and from my conversation
24
with the insolvency practitioner, the manager within that
25
accounting firm, was that they were so worried that my
26
assets were so diminished, even in gross value, that they
27
being personally liable for their legal fees, they may
28
not recover sufficient - - -
29HIS HONOUR: 30
The impression I got,
So what did they do?---They basically gave me the
brush off.
31All right?---And that opened an opportunity, I thought things 1.:CS 10/12/08 2Cressy
FTR:1
251
DISCUSSION
1
through again and I thought well, look things are so
2
grim, what have I got to lose by continuing with the
3
proceedings on my own, although I did continue even up
4
until October this year seeking to get independent legal
5
representation, including meeting with the President of
6
the Law Institute and I got some advice, commercial not -
7
- -
8You have gone beyond the relevant period now in relation to 9 10
what is the question you have been asked with the exhibit of that document.
11MR DEVRIES:
There is a relevance to the question, Your Honour.
12
Mr Johnson, I put it to you that firstly you intended the
13
readers of that affidavit, including this honourable
14
court and my instructors and my client to believe that
15
you had filed for bankruptcy, is that true or untrue?
16
---That's untrue.
17I put it to you Mr Johnson that it is your intention should 18
these proceedings go against you to file for bankruptcy
19
in order to frustrate my client's outcome in this
20
proceeding should she get a positive outcome?---That is
21
not true.
22
for re-examination?
23HIS HONOUR: 24
May I explain or should I save the explanation
If you have denied the allegation it is
sufficient?---Thank you, Your Honour.
25MR DEVRIES:
You gave evidence regarding Gibson Court - I think
26
it's Gibson Court, Gibson Street, page 579 of the
27
transcript.
28
from Gibson Street, at least to buy you some breathing
29
space so you could continue your generous financial
30
support, et cetera.
31
---Yes.
1.:CS 10/12/08 2Cressy
You were seeking to have the caveat lifted
FTR:1
Do you recall giving that evidence?
252
DISCUSSION
1On page 581, Your Honour, line 30:
"My objective was to have
2
the caveat withdrawn from - " - it says "Dixon Street"
3
but it obviously means Gibson Street, "so that I could do
4
a refinancing to keep the sinking ship afloat."
5
recall giving that evidence?---Yes.
Do you
6You requested the caveat to be lifted, you requested my 7
client's previous solicitors to have their caveat
8
lifted?---Yes.
9But your request didn't say that you wanted to refinance, what 10
it said was that was to enable a sale of the property to
11
proceed, didn't it?---No.
12HIS HONOUR: 13
If you have got a written document you had better
show him the document?---It's Exhibit 15 Your Honour.
14MR DEVRIES:
And Exhibit A as well, Your Honour.
15HIS HONOUR:
Yes, Exhibit A is sufficient.
Could the witness
16
be shown Exhibit A please?---I have Exhibit A here Your
17
Honour.
18Do you have a copy of that there?---I have it right here, Your 19
Honour.
20Thank you. 21
That's your faxed letter to Mr Hanlon of
29 October?---Yes, Your Honour.
22MR DEVRIES: 23
That's the letter of 29 October 2007 I believe
Your Honour.
24HIS HONOUR:
Yes.
25MR DEVRIES:
Have you got a copy in front of you Mr Johnson?
26
---I do Mr Devries, yes, excuse me.
27Does it say about two thirds of the way down in bold letters: 28
"Gibson Street is under contract and is past due.
29
Settlement will proceed within three business days of
30
withdrawal of caveat by your client.
31
occur on or before 7 November 2007 or I will suffer
1.:CS 10/12/08 2Cressy
FTR:1
253
Settlement must
DISCUSSION
1
further and substantial ongoing losses and damages."
2
those your words?
3HIS HONOUR:
Are
They are obviously on the letter?---Yes, and - - -
4The important question is were they true?---And yes they are 5
true, and this letter has to be read in conjunction with
6
the other four pages of attachments and the other four or
7
so letters that I sent to Mr Hanlon at Harwood Andrews
8
around that date.
9MR DEVRIES: 10HIS HONOUR:
The other four - - Just a moment.
At that time was there in
11
existence a contract that you had entered into to sell
12
Gibson Street?---No, and I never asserted that there was
13
a contract in the nature of a contract of sale, Your
14
Honour.
15MR DEVRIES: 16
What were the four documents that were attached to
that letter?
17HIS HONOUR:
The four pages of documents.
It's Exhibit 15?---Exhibit 15 Your Honour.
18Perhaps if Exhibit 15 could be shown to the witness?---I have a 19
copy Your Honour.
20Could I have a look at them please Mr Richards. 21MR DEVRIES:
Could I have a look at the copy, the witness has
22
got it, he says he has got another copy, if I could have
23
a look at his - - -
24HIS HONOUR: 25
Do you have a spare?---I have a spare copy Your
Honour.
26Thank you, could you show that to Mr Devries. 27MR DEVRIES:
Thank you, Your Honour.
What you have given me is
28
page 2 of a document, page 1 presumably is the front page
29
of a sale note for the sale of the Gibson Street
30
property, is that correct?---Sorry, can I have a look at
31
the page.
1.:CS 10/12/08 2Cressy
FTR:1
254
DISCUSSION
1HIS HONOUR:
Is that page 2 of the document under which you
2
have purchased - - - ?---That's the particulars page out
3
of the contract under which I purchased Gibson Street,
4
yes Your Honour.
5Yes. 6MR DEVRIES: 7
Then on the last page is a letter from you to
Aaron Eastley dated 25 June 2006?---Yes, Mr Devries.
8And talks about the settlement of the property, is that 9 10
correct?---Yes, Mr Devries and the two pages in between, may I describe them also?
11And let me put to you that there is nothing in those documents 12
which would cause Mr Hanlon reading that document to
13
believe other than that you required the withdrawal of
14
caveat so that you could proceed with the settlement of
15
the sale of Gibson Street, that's correct isn't it?---No,
16
it's not correct, Mr Devries.
17You have given evidence before this court that your intention 18
of getting the caveat lifted was to refinance the
19
purchase or to finance the purchase of another property
20
and/or to refinance your present situation.
21
nothing in this letter that says to Mr Hanlon, if you
22
comply with my request I am going to take money out of
23
Gibson Street and use it elsewhere.
24
is say to them, I need the caveat lifted so I can
25
complete a contract of sale?---Mr Devries, what this
26
letter does - it's one of I think five letters, I've got
27
it numbered as the third in the series.
There is
All that letter does
28And I'm asking you to address the letter itself, Mr Johnson, 29
and I am putting to you that quite clearly this letter is
30
misleading as to your intentions?---Your Honour, I need
31
to give a detailed explanation on this as I have done in
1.:CS 10/12/08 2Cressy
FTR:1
255
DISCUSSION
1
the Practice Court trials on two occasions.
2If you don't agree Mr Johnson - - - ?---Should I do that in re3
examination or should I do it now?
4If you don't agree Mr Johnson say you don't? 5HIS HONOUR:
You can answer the question rather shortly.
6
Firstly, you gave evidence that ultimately you settled
7
the purchase of Gibson Street by yourself in June 2006,
8
is that right?---Yes, Your Honour.
9By October 2007 that contract had been well and truly settled, 10
hadn't it?---Yes, Your Honour.
11What contract are you referring to there?
"Gibson Street is
12
under contract, it is past due.
13
within three business days."
14
---The contract I was referred to were the loan and
15
mortgage contracts.
16
plural, Your Honour.
17MR DEVRIES:
Settlement will proceed
What contract was that?
Perhaps I should have said contracts
"It is under contract and is past due."
That
18
clearly was intended to tell Mr Hanlon and any other
19
reader of that letter that it was under contract of sale,
20
Mr Johnson?---I disagree and I would love to explain, I
21
disagree totally.
22That can be handed back to Mr Johnson.
Mr Johnson, on
23
21 January 2008 you wrote letters both to Challenger
24
Mortgage Management and Royal Guardian Mortgage; is that
25
correct?---Yes.
26I believe, Your Honour, that one of those letters to be an 27
exhibit.
28HIS HONOUR:
It was around about 38 or somewhere around there.
29MR DEVRIES:
I think it might be 35, Your Honour.
30HIS HONOUR:
Yes.
31MR DEVRIES:
What you say there, Mr Johnson, in the penultimate
1.:CS 10/12/08 2Cressy
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256
DISCUSSION
1
paragraph is:
"While I have funds available to meet
2
outstanding mortgages, I have been advised that the
3
prudent course of action is to conserve my cash and allow
4
the mortgage payments to capsize if the mortgagee will
5
agree to this.
6
of the sale proceeds so that there are smaller net sale
7
proceeds from each sale which will remain subject to the
8
caveat claim."
9
100 per cent accurate, Mr Devries.
The reason is that this makes better use
Are those your words?---Yes, and they're
10You wrote in similar terms to Royal Guardian Mortgage Company 11
in respect to two other loan accounts, is that correct?
12
---Yes, I did, one of those letters is one of my
13
exhibits.
14We've identified one as Exhibit 35.
I will show you a copy of
15
the other one to Royal Guardian?---And if Your Honour
16
pleases I am happy for this to be made an exhibit as
17
well, if that would assist Your Honour.
18
document or the plaintiff's.
19HIS HONOUR:
Just a moment Mr Johnson.
It can be my
This is not your court,
20
I am conducting this court.
Just have a look at the
21
document?---Thank you, sir.
It's the first page of a 17
22
page fax, Your Honour, again I am concerned about 16, 17
23
of the document not being shown to me.
24MR DEVRIES:
Mr Johnson, that is a letter from you to Royal
25
Guardian Mortgage Corporation, isn't it?---Yes,
26
Mr Devries.
27That is your signature at the bottom?---Yes, it is Mr Devries. 28HIS HONOUR: 29
Thank you?---Your Honour, I ask that the remaining
16 pages of document be tendered also.
30You may do so in re-examination?---Thank you, Your Honour. 31
If
I remember to I shall.
1.:CS 10/12/08 2Cressy
FTR:1
257
DISCUSSION
1 2#EXHIBIT L 3
Letter by defendant to Royal Guardian Mortgage Corporation, dated 21/01/08.
4MR DEVRIES:
Mr Johnson, by those actions - I'm sorry.
By
5
those two letters you clearly were taking action, I
6
submit to you, to frustrate any claim that my client
7
might succeed – sorry, any judgment my client might
8
succeed in obtaining from this honourable court?---I
9
totally disagree.
10
And may I explain in just one sentence
why I disagree?
11I'll move on. 12HIS HONOUR:
You may - - - ?---Explain it in re-examination.
13In re-examination?---Certainly, Your Honour. 14MR DEVRIES:
Well, perhaps so that I'm not taken by surprise,
15
what is your one sentence explanation?---I was unable to
16
pay the mortgage payments, I had a little pool of moneys
17
over from the Gibson Street refinancing, which was in my
18
Commonwealth Bank.
19
bank statements of mine which show how that money
20
disappeared.
21
been barely enough to catch up all the mortgage arrears
22
as of that date in January, barely enough.
23
Bill Clinton type example, "Yes, I did try marihuana, but
24
I did not inhale", it was technically correct; I did not
25
want to give any suggestion to any of my mortgagees that
26
I was unable to pay my debts as and when they fell due,
27
but I had for six months been relying upon borrowed
28
moneys to meet those obligations, including significant
29
sums of moneys borrowed from family and friends to keep
30
the mortgages up to date more or less as of November
31
2007.
32
so that - - -
Mr Devries has seen copies of those
It wasn't a lot of money, it would have
So in that
What I was seeking to do was liquidate my assets
1.:CS 10/12/08 2Cressy
FTR:1
258
DISCUSSION
1You've gone beyond the one sentence?--- - - - the pool of 2
assets would maintain their value and not be diminished
3
by further interest only mortgage payments that I could
4
not fund.
5
that was an intelligent thing to do.
6
had had any interest – legitimate interest in my pool of
7
assets there should have been some negotiation about
8
quitting those properties at their best price rather than
9
having the mortgage payments continue to chew them up.
And with hindsight, and even with foresight, If the plaintiff
10
At that point my net equity across my properties as a
11
group was about 500, 600,000.
12HIS HONOUR:
Which point is that?---21 January 2008, when I had
13
the contracts for Altona which I needed to discuss with
14
Mr Hanlon on behalf of Miss Cressy because I had never
15
charged her caveat over that property; I never did an 81A
16
application and I had the two contracts for the Point
17
Cook properties which was the roof over my own head that
18
I was saying.
19
in my attempt to maintain the cash value of that pool of
20
assets in dispute, it's gone down from about 600,000 to –
21
based on the information that Mr Devries led on Tuesday
22
or Wednesday of last week, maybe 70,000, Your Honour, and
23
that's in the space of less than 12 months.
As has transpired because I was frustrated
24So you calculate your remaining equity in the properties 25
as - - - ?---I count the hills, and there's two hills;
26
there's Altona, which back in January 21, 2008, would be
27
about quarter of a million.
28
70,000.
That's dropped to about
29Yes?---And the other little hill is my current address of 30
record, 10 Hawkhurst Court, Hoppers Crossing.
31
fee in there is about maybe 30,000.
1.:CS 10/12/08 2Cressy
FTR:1
259
The legal
DISCUSSION
1Well that makes 100,000?---Does it? 2Seventy and 30 - - - ?---No, no, I'm sorry, it's 50 – 50 and 3
30.
4Fifty and 30?---Forty-eight – 48, Your Honour. 5MR DEVRIES:
You had said 100,000 earlier on in these
6
proceedings, Mr Johnson, so what's changed over the space
7
of the last two or three days?---If I could clean up
8
according to what the agent told me, and my reason for
9
booting my tenant out of Hawkhurst Court was twofold; (1)
10
I could make it available by negotiation for Miss Cressy
11
and her children to move into.
12
lowest mortgage of all my portfolio.
13
cleaning up the mess from the last tenant my agent
14
advised me that I would get an increased value of maybe
15
20,000 from it.
16
into – the house is in the same horrible site – state it
17
was when I moved in.
18
my pool of assets in dispute – the hills, Your Honour –
19
sorry, global value maybe 600,000 as of 21 January 2008,
20
and I could have liquidated that and that money could
21
have been - - -
22HIS HONOUR:
It's the least valuable And, secondly, by
I've not had time to put that energy
If there's diminution in value of
All these are based on guesstimates as to values.
23
You don't produce any valuation - - - ?---I have binding
24
unconditional sale contracts in exhibits, Your Honour,
25
for Dorrington Street, Inverloch Drive and Queen Street.
26Yes, but you don't have current valuations?---I have the 27
hearsay from the Herald Sun - - -
28Yes, well that's hearsay?---Yes. 29Anyway, I think that's – let's get back to the point. 30MR DEVRIES: 31
Mr Johnson, when did you - - - ?---Sorry, I was
explaining the hills, I can tell you what hills - - -
1.:CS 10/12/08 2Cressy
FTR:1
260
DISCUSSION
1Mr Johnson, - - 2HIS HONOUR:
I think you've done enough explanation now - - - ?
3
---I'll need to come back to the valleys in re-
4
examination, Your Honour.
5Mr Devries? 6MR DEVRIES:
I should never have asked him to elaborate on one
7
sentence.
8
Commonwealth Bank to purchase 7A Endeavour Drive,
9
Torquay, didn't you?---I did a global funding application
10
- - -
11HIS HONOUR: 12
(To witness) You borrowed from the
The answer is yes, isn't it?---Yes, but it was
when - - -
13Mr Johnson, you're now becoming evasive. 14
In my view it is such
the short answer to that question was clearly yes.
15MR DEVRIES:
When did you make that application to the
16
Commonwealth Bank?---The application for Endeavour Drive
17
refinancing Gibson Street and the two Breezy Street,
18
Brunswick off the plan apartments, it was the four
19
properties - - -
20HIS HONOUR:
When did you make the application, was the
21
question?---That initially would have been maybe, I'm
22
guessing, about July or August 07.
23MR DEVRIES:
You gave them information in December 2007 as to
24
your financial situation, didn't you?---Yes, the initial
25
application got (indistinct) and I had to resubmit
26
material.
27Yes, and was there much change between your financial position 28
in December 2007 and your position that you just
29
described in early 2008, 21 January 2008?
30
to write down every - - -
31HIS HONOUR:
You don't need
1.:CS 10/12/08 2Cressy
And what is the answer to that question?---I may FTR:1
261
DISCUSSION
1
need to – I may not get the transcript in time for re-
2
examination, Mr Devries.
3MR DEVRIES:
Well, is there much change in the position?---The
4
answer is my position was extremely volatile and
5
deteriorating quickly.
6You told the bank in December 2007 that the total value of what 7
you owned was $2.406m and the total value of what you
8
owed was $1.37m, leaving a surplus of $1.035m, didn't
9
you?---I believe you're referring to a historical
10
document so I'd like to know the date of that material.
11Would you like to just answer my question, Mr Johnson? 12HIS HONOUR:
Well, firstly, what was the date of the document?
13MR DEVRIES:
It was – it's got no date itself, but it has an
14
entry that suggests 22 January 2008, Your Honour?---Well,
15
that's after December 07, Your Honour.
16Yes, but there are – would you like to answer my question, 17
please, Mr Johnson.
18HIS HONOUR:
Just a moment, just a moment.
19
request as to when was the document.
20
document was produced in January 2008?
It was a fair
21MR DEVRIES:
You say this
Your Honour, there are two dates on the document,
22
two people were the authors of the document; one person
23
authorised - - -
24HIS HONOUR:
If it's that complicated you will need to show
25
Mr Johnson the document to find out when it came into
26
being.
27
that is a very short question to which there ought to be
28
a prompt response?---Your Honour, defence counsel would
29
like a relevancy check.
And, Mr Johnson, I do not wish to have a speech,
What relevance is what I - - -
30Mr Johnson, this will go to the issue of your assets. 31
overrule your objection.
1.:CS 10/12/08 2Cressy
FTR:1
I
You will look at the document. 262
DISCUSSION
1
Firstly, Mr Devries, is that a document – you say it's in
2
the defendant's hand or someone else's hand?
3MR DEVRIES: 4
believe, Your Honour.
5WITNESS: 6
It's a document that was produced by Mr Ioannou, I
Your Honour, this is a document I have never seen.
think it's a bank internal document.
7MR DEVRIES:
But it's based on information you gave the
8
Commonwealth Bank, isn't it, Mr Johnson?---I would be
9
based on information of mine that had been given to the
10
I
Commonwealth Bank, probably not by me, Mr Devries.
11HIS HONOUR:
Do you say you didn't formulate that document?---I
12
had done so many refinance – well, this is a Commonwealth
13
Bank document, Your Honour - - -
14No, just answer the question?---Yes, Your Honour, this is a 15
Commonwealth Bank document - - -
16That's not under your hand or anything like that?---Certainly 17 18No.
not, Your Honour. I can't see it from here, so?---I'm sorry, Your Honour.
19MR DEVRIES:
I wasn't suggesting that it was - - -
20HIS HONOUR:
Well then you're cross-examining the witness from
21
a third party document.
22MR DEVRIES:
I am, Your Honour.
(To witness) But you gave –
23
that's information that was given to the Commonwealth
24
Bank on your behalf, isn't it?
25
what you knew the Commonwealth Bank to have been
26
informed?---Mr Ioannou, who organised my finances - - -
That's consistent with
27Can you just answer the question, please?--- - - - had a lot of 28
information.
29
gave to the Commonwealth Bank.
30HIS HONOUR: 31
I don't know what information Mr Ioannou
Well, put it this way; is that document, and the
contents of it, consistent with the information that you
1.:CS 10/12/08 2Cressy
FTR:1
263
DISCUSSION
1
gave – is that document consistent with the information
2
you gave to Mr Ioannou for the purposes of him
3
transmitting that information to the Commonwealth Bank
4
for the refinancing you were endeavouring to undertake?
5
Yes, or no?---I don't know, Your Honour.
6
what information I gave to Mr Ioannou.
I don't recall
7All right?---Or what he would have used out of his existing 8
information he held on me.
9MR DEVRIES:
Can you tell His Honour then why you photocopied
10
that document at Mr Ioannou's premises and included it
11
amongst the documents that you have tendered to this
12
court?---I can't recall specifically doing it,
13
Mr Devries, I copied a lot of documents.
14Well, it's come from documents that you have photocopied that 15
you tendered to the court?---I'll accept your word,
16
Mr Devries, but I cannot otherwise take in any
17
recognition of the document; it was just in a bundle that
18
I happened to photocopy - - -
19I put to you that Mr Ioannou is a confidant of yours in respect 20
to your financial affairs, isn't he?---He would know more
21
about, or as much about my property portfolio as I do,
22
Mr Devries, because he's financed all of them by now,
23
except for the remnant AMP one that was put - - -
24And he was your agent in respect to all of the borrowings that 25
he organised for you from the Commonwealth Bank, AMP and
26
other lending institutions, is that correct?---No, not
27
AMP - - -
28Well, the other lending institutions - - - ?---But all of my 29
existing mortgagees, apart from AMP, Mr Ioannou was the
30
mortgage broker (indistinct) - - -
31And you were aware, I put to you, of what he was telling those 1.:CS 10/12/08 2Cressy
FTR:1
264
DISCUSSION
1
lending institutions about your financial affairs?---Not
2
totally, Mr Devries.
3And I put to you again that the information that's in there is 4
consistent with what you wanted him to represent to the
5
bank on your behalf?---The information here will be
6
consistent with information Mr Ioannou had that I had
7
given him, but I don't know how many years ago.
8
that's a fair defence.
9
Your Honour, that - - -
10HIS HONOUR:
I think
Might I mention at this stage,
You've answered the question?---The plaintiff's
11
counsel has received a lot of documents under subpoena
12
which I've never had an opportunity to inspect.
13
were Commonwealth Bank documents given to Mr Devries
14
under subpoena - - -
15MR DEVRIES:
This is the - - -
16HIS HONOUR:
This doesn't relate to the question.
There
We will
17
stick to your evidence at the moment and then, hopefully,
18
one day we will finish?---I'm being cross-examined on
19
plaintiff's documents that I have not had an opportunity
20
by - - -
21You are being cross-examined at the moment, you've answered the 22
question.
23MR DEVRIES: 24WITNESS: 25
Continue on.
I will tender that document, Your Honour.
Can I question is that possible it's a third party
document?
26HIS HONOUR:
It seems to me by your last answer you have a
27
adopted the contents of it.
You say that's consistent
28
with information you gave to Mr Ioannou to - - -?
29
---Maybe.
Maybe in 2007 and in 2006.
Maybe in 2005.
30So you say that the information in that is consistent with 31
information you gave to Mr Ioannou, but not necessarily
1.:CS 10/12/08 2Cressy
FTR:1
265
DISCUSSION
1
as of January 2008.
Is that what you're saying?---I – I
2
think he may've just recycled the information as at the
3
funding for the Gibson Street - - -
4I receive the document as reflecting what you've just stated in 5 your answer?---So it might be early 2006 information. 6 7#EXHIBIT M Document titled Commonwealth Bank; The 8 Home Loan Investment. Home Loan 9 Application 389007121393603. 10MR DEVRIES: 11
It has a print date at the bottom of some of the
pages, Your Honour, of 22 January.
12HIS HONOUR:
Does that mean that's the date it's been printed
13
up or is that the date it was produced?
14
document was originally produced?
That the
15MR DEVRIES:
Yes, that's what it says at the bottom - - -
16HIS HONOUR:
Does that mean simply that's the date when the
17
hardcopy came into existence, or is that the date when
18
the original document perhaps in electronic form came
19
into existence?
20MR DEVRIES:
The answer is yes to both, Your Honour, because
21
you'll see on the last page there's a signature of an
22
approving officer of 22 January 2008.
23HIS HONOUR:
On the last page?
24MR DEVRIES:
I think it's the last page or the second last
25
I thought it was the last page towards the - - -
page.
26HIS HONOUR: 27
I can't see that but I'll receive it as I've
described it, and we'll move on.
28WITNESS:
Your Honour, may I again ask the relevance of my
29
financial transactions in December 2007, to the periods
30
and the issues in the plaintiff's statement of claim?
31HIS HONOUR:
It has some relevance or may have some relevance
32
as to two issues.
33
source of all the funds that you've deposed to.
1.:CS 10/12/08 2Cressy
FTR:1
One is your claim to have been the
266
Secondly DISCUSSION
1
it may have a relevance as to what if any assets there
2
are, in respect of which the plaintiff makes a claim
3
under Part 9 if she is otherwise entitled to make such a
4
claim?---Even though there's no evidence-in-chief - - -
5I'm not going to argue it?---- - -to support those claims - - 6But Mr Devries is entitled to cross-examine that evidence out 7
of you.
8MR DEVRIES: 9
Between 2006 and December 2007 did you acquire any
properties?---Sorry, Mr Devries, could you repeat those
10
dates?
11Yes.
Between 2006 and the end of 2007 did you acquire any real
12
estate?---Clearly, yes.
13That's reflected in the document that's just been handed up to 14
His Honour isn't it?
15
all of the property transactions that you had undertaken
16
between 2006 and 2008?---I'd need to look at the
17
document.
18HIS HONOUR: 19
That document was up to date for
Do you wish to look at it again?
Could Exhibit M
be shown to Mr Johnson, please?
20WITNESS:
I did settle on the purchase of Endeavour Drive,
21
Torquay a couple of days before Christmas 2007, if I can
22
shortcut the answer.
23MR DEVRIES:
The front page refers to 7A Endeavour Drive,
24
Mr Johnson?---Yes.
Well, I see no further in answer here
25
to the contents because I've exhaustively answered that,
26
Mr Devries.
27You see, Mr Johnson, you've tried to suggest to His Honour that 28
that information was two years out of date.
29
suggesting to you that you know full well that that
30
answer to His Honour's question was false, misleading,
31
untrue and I'll go as baldly as to say a deliberate lie
1.:CS 10/12/08 2Cressy
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267
I'm
DISCUSSION
1
on your part?---Mr Devries, you're stepping very close to
2
Chapter 4 of the Legal Practice Act territory, which I
3
will again - - -
4HIS HONOUR:
Just answer the question?---There are multi-prongs
5
to that argument.
Most of that question.
6
are vile statements about my character.
Most of them
7Mr Johnson, if you don't answer the question - - -?---I have 8
said - - -
9- - -draw an inference against you?---I have said that I 10
purchased that property and it settled pre-Christmas.
11
have explained that information was provided by my
12
mortgage arranger to the Commonwealth Bank.
I
13What Mr Devries - - - ?---I do not know what information or 14
what currency or what cut-off date of that information.
15
I suspect Mr Ioannou would've just repackaged the due
16
diligence materials that I provided for the Altona
17
financing in – and that would've been February 2006.
18
don't recall going to a lot of effort.
19
to sign even loan applications.
20
would just recycle I discovered loan applications from
21
years previously.
22He did more than recycle it.
I
I very rarely had
Basically Mr Ioannou
He's included the Endeavour
23
property in that document - - -?---Yes, yes, yes.
24
would recycle all the information.
25
himself.
26
then he would just submit it.
27
loan application for – on one lender's letterhead being
28
submitted to the next one.
29
be approved or – or several lenders would be approved and
30
with his advice I picked the better one.
31
that application process.
1.:CS 10/12/08 2Cressy
He
He would fill it out
I hate filling out paperwork, Your Honour, and
FTR:1
So sometimes there'd be a
Sometimes the funding would
I left a lot of
I would give him a big kit of
268
DISCUSSION
1
material.
2
into the loan applications.
3
but on the majority of times I wouldn't even sign an
4
application, or I would pre-sign it and he would fill in
5
the details later.
6MR DEVRIES:
I'd leave it to him to translate that across Sometimes I would sign then
Mr Johnson, you said yesterday - I think at p.692
7
of the transcript, Your Honour.
8
had multiple addresses or you used multiple addresses.
9
Was that correct, that you gave that evidence yesterday?
10
---Yes.
11
different business addresses.
(To witness) That you
As late as April last year I had at least five
12What's the difficulty with answering a question yes or no? 13
---I'm trying to save time by giving His Honour the
14
information in the cross-examination process rather than
15
in re-examination.
16HIS HONOUR:
Just answer the question.
You'll save a lot more
17
time if you just give direct answers, Mr Johnson?---I'm
18
concerned I might miss a point in re-examination,
19
particularly - - -
20HIS HONOUR:
Mr Johnson, look, the requirement of you in
21
cross-examination is to answer the questions.
22
you I think more than a day ago that as a judge of the
23
facts when a witness declines to answer a question or
24
where he gives an over-expansive answer to a question,
25
often the perception by the judge of facts is that that
26
witness is being evasive.
27
any justice in the technique you are adopting.
28
just a fair caution to you.
29MR DEVRIES:
I warned
So you are not doing yourself That is
Mr Devries.
Now, you went on to say you still use Dorrington
30
Street, is that correct?
31
Street as your address throughout?---I - - -
1.:CS 10/12/08 2Cressy
FTR:1
And that you used Dorrington
269
DISCUSSION
1Is that correct or incorrect, yea or nay, Mr Johnson?---Yes, up 2
until the date I vacated that property under
3
Justice Cavanough's orders, yes that is correct.
4What date was that?---That is interesting because the 5
written - - -
6What date did you vacate - - 7HIS HONOUR:
It doesn't matter whether it is interesting or
8
not, what date did you leave Dorrington Street?---July
9
this year.
10MR DEVRIES:
When did you resume occupation of Dorrington
11
Street prior to you vacating it on that date?---It was
12
when my tenants left early - - -
13What date?---I think it was during September. 142007?---2007, yes.
Give or take a month.
15Piror to September 2007 when was the last date that you were in 16
occupation at 2 Dorrington Street?---The last time that I
17
was in residence there would have been July or August
18
2003.
19Ms Cressy was in residence then for some time after July 2003, 20
wasn't she?---Yes, up until June 2006.
21My instructor and I have gone through a lot of the loan 22
application documents, Mr Johnson, and there are a large
23
number of documents of yours, and we could spend a fair
24
bit of time isolating them, bank statements, so on and so
25
forth which reflect Dorrington Street as your address,
26
postal address for those documents between July 2003 and
27
June 2006.
28
want us to go through the lengthy exercise of identifying
29
all of those documents?---I wish to save you that lengthy
30
exercise.
Do you accept that that is correct or do you
I can answer it quickly in the detail.
31Is the answer "yes"?---The answer is yes. 1.:CS 10/12/08 2Cressy
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270
DISCUSSION
1What you have said to His Honour is that from July 2003 to at 2
least June 2006 being the relevant period for the purpose
3
of this question, you resided at one or other of your two
4
Bourke Street addresses, Unit 909 and then Unit 2302, I
5
think it's 686 or 998.
6HIS HONOUR:
668 I think.
7MR DEVRIES:
668?---Yes.
8Is that correct?---Yes, for that period it was apartment 909. 9You have said to His Honour not only was that my home but that 10
was my business address, is that correct?---That's not
11
correct.
12You have said to His Honour that that is where you resided for 13
the bulk of that period, hadn't you?---There are two
14
prongs to the question.
15
the whole of that period, July 2003 to at least June
16
2006.
17
business addresses and one of a number of business
18
premises.
19
premise that I had during that period.
Yes, that's where I reside for
It was one of a number of business premises -
There is a difference between an address and a
20But it was a major place that you worked from, wasn’t it, 21
during that period of time?---No, the major place that I
22
worked from during all of that time was either my office
23
within side Primelife Corporation, part of that time it
24
was in Collins Street, part of that time it was 210 Kings
25
Way and the other part where I worked for most of my time
26
was Barwon Water, my office there, 61 to 67 Ryrie Street,
27
Geelong, they were my principal addresses.
28At the very least you maintained an office at that Bourke 29
Street address, didn't you?---Within my home I had an
30
office home and I had a personal assistant come in to
31
work for me a couple of days a week.
1.:CS 10/12/08 2Cressy
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271
DISCUSSION
1HIS HONOUR: 2
I thought you told me three days a week?---Yes,
yes Your Honour.
3What period was that that she was employed by you?---Kathleen 4
started off at two days a week.
5Yes, when was that?---She was my full time PA down at Primelife 6
until they retrenched her.
7Just roughly, when did she start coming to the Bourke Street 8
office?---Look, she's good, she did remind me there was
9
something in the dates, it was March - - -
10Yes, which year?---That's the tricky bit, Your Honour. 11I'm sure it is, now you tell me what it is?---I think it was 12
'05, Your Honour.
13Thank you?---And it was in the first week of March '05 starting 14
at two days a week and then progressively increased, she
15
was a Crohn's Syndrome sufferer so she couldn’t work full
16
time.
It was too tiring for her which was one of - - -
17Her health has got nothing to do with this case and you know 18
it?---Thank you, Your Honour.
19Stop stalling for time?---No, Your Honour. 20MR DEVRIES: 21
Did you have a post box address at that stage?
---I needed - - -
22Did you have - - - ?---Yes, yes. 23When did you have that post box address first?---Well, that 24
would go back to '96 or '97 I think.
25Now, I put to you, Mr Johnson, there is no reason why you would 26
maintain 2 Dorrington Street as your postal address
27
between July 2003 and June 2006 unless it was also your
28
residential address?---My answer is that's a ridiculous
29
statement, it's not even a question.
30So you agree with my statement that - - - ?---No, it's a 31
ridiculous multi-prong statement, not a question.
1.:CS 10/12/08 2Cressy
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272
DISCUSSION
1HIS HONOUR: 2
He has disagreed with it.
You have put really a
proposition to him and he has rebutted it.
3MR DEVRIES:
Yes, and that is notwithstanding the fact,
4
Mr Johnson, that you have represented to Guardian Mutual
5
Corporation that your residential address was
6
2 Dorrington Street and had been for three years and two
7
months as at the date you made application for a loan,
8
being 4 August 2005?---Under the formula that His Honour
9
wishes me to adopt in response I have to say I disagree
10
to that question and the previous bundle of statements
11
and I will explain to His Honour in re-examination.
12Have a look at this document, I believe it's been tendered, 13
Your Honour, part of Exhibit 6.
14
questions about this document before?---I am indebted to
15
my learned friend for identifying the source of the
16
document.
17Or maybe part of Exhibit 5.
I have asked Mr Johnson
That is in your handwriting - - -
18HIS HONOUR:
Exhibit 5 or Exhibit 6?
19MR DEVRIES:
5?---Your Honour, none of this is my handwriting,
20
except the signatures.
21You have signed that document, haven't you?---The signatures 22
are mine but the handwriting is - I believe it to be
23
Mr Ioannou's.
24The signature is yours, isn't it Mr Johnson?---I've said that 25
Mr Devries.
26HIS HONOUR:
He's just said he signed it.
27MR DEVRIES:
Yes, and you've read that document before you
28
signed it, didn't you?---As I've said in previous answers
29
this morning, maybe, maybe not.
30
and Mr Ioannou filled in the details.
31
identify which - this is the refinancing for Point Cook.
1.:CS 10/12/08 2Cressy
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273
Maybe I pre-signed it Now, can I just
DISCUSSION
1You don't have to give us a commentary, and it was signed by 2
you - - - ?---I need to identify the document Mr Devries.
3It was signed by you on 4 August 2005, wasn't it?---Yes. 4I think I might ask Mr Ioannou about these rather than 5
Mr Johnson.
On the front page under "Personal details"
6
it's got your name, date of birth and sex, doesn't it?
7
Is that correct, under "Personal Details"?---Name, date
8
of birth and - I can't see the sex one.
9There's a tick, and that's all correct isn't it?---I can't see 10
the sex one but the first two - yes, I do, up next to
11
date of birth, yes, yes, yes.
12A bit further down it's got "Contact telephone numbers," your 13
mobile and your work telephone number?---The work number
14
was my South Yarra address for my practice Sutton
15
Johnson.
16Well, it has those numbers and they're correct, aren't they? 17
---Yes, those phone numbers are correct.
18"Current employer Sutton Johnson," that's correct?---That was, 19
as we know, a name of my legal practice.
20
date of this document?
21"Self-employed," tick.
"Sutton Johnson."
May I check the
"Years in
22
employment, six."
"Occupation, solicitor."
Those were
23
correct?---Yes, that looks right and I practice under the
24
legal firm Sutton Johnson at that date, yes.
25It must be awfully hard to use a three word letter word called 26
"yes"?---It's my favourite word in the English language,
27
Mr Devries.
28HIS HONOUR:
Well start using it?---Thank you, Your Honour.
29MR DEVRIES:
Under "Address" - - -
30HIS HONOUR:
What is this document?
31MR DEVRIES:
It is headed "Guardian Mortgage Corporation,
1.:CS 10/12/08 2Cressy
FTR:1
274
DISCUSSION
1
corporate particulars, loans in company name."
2
Honour, if I can - - -
3HIS HONOUR:
Is that it?
4MR DEVRIES:
Yes, Your Honour.
5HIS HONOUR:
It was Exhibit 6, not Exhibit 5.
6MR DEVRIES:
I apologise, Your Honour.
Your
It's got your
7
residential address as 2 Dorrington Street, Point Cook,
8
doesn't it?---Yes.
9It has got you presently at that address for three years, two 10
months?---Yes.
11And by signing that document you have adopted that as factually 12
correct?---On the point that it was a residential address
13
but not on the point that I was in residence there.
14What is "Period at current address, three years two months."? 15
---That's approximately how long I'd owned that
16
residence, yes.
17Mr Johnson, on the last page there are credit card details, 18
aren't there, and your signature, is that right?---Yes.
19All the writing under "Notes" was there before you applied your 20
signature to that page, weren't they?---On the balance of
21
probability probably not.
22Come on. 23HIS HONOUR: 24
Mr Johnson, could you go to the second page?
---Thank you, Your Honour.
25Do you see the box on the bottom left hand corner next to 26
"Applicant 1, income name," do you see that?---Yes, Your
27
Honour.
28They are your initials, "JJ"?---Yes, Your Honour. 29You signed those initials there?---Yes, Your Honour. 30That was because there was a correction to the gross income 31
stated to make it $240,000?---Yes, Your Honour.
1.:CS 10/12/08 2Cressy
FTR:1
275
DISCUSSION
1You initialled that correction were you?---Yes, Your Honour. 2Thank you?---The correction is not in my handwriting, Your 3
Honour.
4I understand that but you verified it by signing it?---Thank 5
you, Your Honour.
6Thank you. 7MR DEVRIES: 8
Further up under the heading "Assets details", do
you se that little bit there?---Yes.
9Do you see the heading, "Principal residence at"?---Yes. 10Dorrington Street, Point Cook?---Yes. 11You were aware of that when you signed that page of that 12
document?---I was aware that the date - - -
13That it said Point Cook?---I was aware that the residential 14
address stated in the loan documents had to match my
15
credit report information that the lender would – would
16
take, and it had to match my driver's licence.
17You are aware – I know you have great difficulty answering my 18
questions but please, please try.
19
signed off on a document that said, "Principal residence
20
at Dorrington Street, Point Cook"?---I'm aware that
21
Mr Devries line of questioning is way off point in terms
22
of - - -
23HIS HONOUR: 24
You're aware that you
I don't think you've answered the question?
--- - - -conclusion.
25Are you evading that question?
Did you sign that document in
26
the knowledge that it represented your principal place of
27
residence as Dorrington Street?---Irrespective of whether
28
Mr Ioannou inserted some or all of this information after
29
I signed it, and I submit probably it was a bit of both,
30
the answer to Your Honour's question must be yes.
31Thank you. 1.:CS 10/12/08 2Cressy
FTR:1
276
DISCUSSION
1MR DEVRIES:
You heard Mr Ioannou's evidence didn't you?
2HIS HONOUR:
You've got a positive answer to the question, so I
3
think we'll just keep moving on.
4WITNESS:
Thank you, Your Honour.
5MR DEVRIES:
And on the same page at the top under, "Split to
6
applicable refinance owner occupied property", it says it
7
there doesn't it?---Sorry, Mr Devries, which page was
8
that?
9The same page that you were on before; the second page.
At the
10
very top of it in the middle; almost the middle?---Yes,
11
that's what it says, Mr Devries.
12It said that when you signed it didn't it?---Again I can't be 13
sure whether it said that or whether Mr Ioannou put that
14
in later.
It's not my handwriting.
15I tender that document, Your Honour. 16 17#EXHIBIT N Loan application by the defendant, Harold 18 James Johnson, to Guardian Mortgage 19 Corporation dated 04/08/05. 20HIS HONOUR: 21
Do you have a copy of that that can be made an
exhibit?
22MR DEVRIES:
Sorry, Your Honour?
23HIS HONOUR:
Is there a copy that could be made an exhibit?
24MR DEVRIES:
Yes, Your Honour, that's in front of - - -
25HIS HONOUR:
It's on there, yes, thank you.
26WITNESS: 27
Sorry, Your Honour, may I have copies of these
(indistinct) exhibits given back to me, please?
28HIS HONOUR:
You wish to have copies of those exhibits?
29
---Yes.
The ones that Mr Devries has tendered this
30
morning.
31We can organise that at a convenient time?---Thank you, Your 32
Honour.
33MR DEVRIES: 1.:CS 10/12/08 2Cressy
May it please, Your Honour. FTR:1
277
DISCUSSION
1HIS HONOUR: 2
Mr Devries might be able to have his solicitor
make copies of those documents.
3WITNESS:
More than - - -
4MR DEVRIES:
Unfortunately, Your Honour, the copy I have is
5
marked but I'll still give him a photocopy of that.
6
marked - - -
7HIS HONOUR:
Thanks.
8MR DEVRIES:
Towards the end of yesterday - - -
9HIS HONOUR:
Is that the original?
It's
Sorry.
10MR DEVRIES:
Yes - - -
11HIS HONOUR:
Yes.
12MR DEVRIES:
Sorry, Your Honour.
(To witness) Towards the end
13
of yesterday I was asking you questions about your
14
expenditure figures, from the $9000 that you took out
15
from time to time from your bank account in cash.
16
recall me asking you those questions?---Yes.
Do you
17I put you on notice that I'd be asking you some questions about 18
that today, to give you the opportunity to clear your
19
head and give us that information.
20
than you said you were in yesterday.
21
me - - -?---Yes.
22
raising this issue again.
A less confused state Do you recall
I'm grateful to my learned friend for
23Have you sorted through those figures in your own mind?---I 24
believe, yes, yes, Mr Devries.
25First of all do you stick by the figure of $9000 per week on 26
Mondays?---I stick by the figure that it was $9000 every
27
second Monday and most – in between Mondays it was $9000
28
also give or take a day, give or take a few thousand
29
dollars.
30
cent of the time, Your Honour.
The answer's yes, in the broad brush 80 per
31So instead of being every Monday how many Mondays are we now 1.:CS 10/12/08 2Cressy
FTR:1
278
DISCUSSION
1
talking about on average?
2
Monday was a public holiday and you said there were a lot
3
of Monday public holidays, and to the best of my
4
recollection there's probably two or three a year now.
5
But if we treat the Tuesday of a long weekend week as
6
being a Monday for the purpose of this exercise, how many
7
Mondays in a 52 week year would you have drawn out $9000
8
or thereabouts over the period that you gave evidence
9
yesterday?---Thank you, Mr Devries.
10
Sorry, how many weeks?
If
I was living on a
fortnightly cycle.
11No, no, just answer the question?---So that would be 26 Mondays 12
and that would be pretty definite.
Twenty six Mondays of
13
the year.
14
or it might be the Friday before or the Tuesday after.
15
Mostly it would be 9000.
16
Very rarely it might be 18,000.
17
80 per cent of Mondays – any given Monday when my cash
18
flow was high and my commitments were high, there's an
19
80 per cent chance I would be at my bank; ANZ Bank.
20
big gothic one in Collins Street, drawing out - - -
In the alternate week – most of those Mondays
Sometimes it might be 6000. So in the broad brush
The
21HIS HONOUR:
We don't need a description?---Drawing out $9000.
22MR DEVRIES:
So 26 Mondays being every second Monday and 80 per
23
cent of the other 26 weeks you did the same thing.
24
that correct?---Twenty six Mondays.
25
part of your question, Mr Devries?
Is
What was the last
26Eighty per cent of the alternate weeks you would've drawn out 27
9000, but it might not be on a Monday?
28HIS HONOUR:
I don't think Mr Johnson's putting that.
I think
29
what he's saying is, in a very complex overdetailed
30
manner, that we could work on the basis that 80 per cent
31
of each Monday in a year he withdrew $9000.
1.:CS 10/12/08 2Cressy
FTR:1
279
My rough DISCUSSION
1
arithmetic is that basically that would mean about 36, 37
2
Mondays a year you would have taken out $9000 from this
3
bank, is that right?---Yes, Your Honour.
4MR DEVRIES:
It comes to almost 42 weeks, Your Honour.
5HIS HONOUR:
All right.
6MR DEVRIES:
So at least 42 weeks a year over a three year
7
period you are talking about?---I've explained
8
organically, I'll accept your calculation, Mr Devries,
9
and His Honour's calculation would be - - -
10All right, and on those other ten weeks you'd still be drawing 11
out money, but maybe not $9000, is that what you're
12
saying?---No, it might depend on the cash flow.
13
would be some weeks I might have 120 grand lob into my
14
bank account.
15
definitely happened, it's an important date I can recall.
16
But there might be other periods where I might go for six
17
weeks without any money going in, so I'd be relying on
18
whatever was in the bank or whatever cash reserves I'd
19
pulled out on the most recent Mondays or Tuesdays or
20
Fridays.
21
apartment at most times and I had credit cards as
22
cushions to draw on.
23HIS HONOUR:
There
I had a week in July 2006 where that
I kept a fairly solid cash reserve in my
Well, I don't really need a commentary unless
24
Mr Devries wants it, he was really asking what you were
25
withdrawing at the moment?---Yes.
26Let's just stick to that, all right?. 27MR DEVRIES:
Your commitments that you used this cash for were
28
2200 per month for your wife and her family, is that
29
correct?---Yes, Mr Devries.
30
this rather than Mr Devries repeating those questions.
Yes.
I believe I can assist
31No. 1.:CS 10/12/08 2Cressy
FTR:1
280
DISCUSSION
1HIS HONOUR:
Mr Devries is asking the questions, you will
2
answer the questions?---I shall, Your Honour, thank you.
3
May it please Your Honour.
4Yes, you definitely will. 5MR DEVRIES:
Now, Mr Devries, your next question.
Is the figure still $12,000 per month for your
6
total mortgage payments?---As at July 2006 that's an
7
accurate figure, yes.
8July 2006? 9 10
What about July 2005?---I would not have had a
mortgage obligation in respect of Gibson Street or Altona.
11Just guess a figure?---Half of that. 12Six thousand?---Yes. 13So we'll stick to July 2006 then; so July 2006 you're paying 14
your ex-wife 2200?---Yes.
15You're paying mortgage payments of 12,000 per month?---Yes. 16You're paying rental by that stage of $2345 per month?---Yes. 17You're paying $100 per month for Osborne Street, South Yarra? 18
---Yes.
19And $700 per month for 140 William Street and Chifley Square? 20
---Yes.
21You were paying an average per month of about 6500 off your tax 22
debt arising out of Artemis?---No.
23What figure are you saying average per month at that stage? 24
---The tax debt was a more complicated aggregate of
25
obligations, a very small – less than a quarter of that
26
was carried forward from the Gallery of Artemis.
27How much were you paying off accumulated tax debts on average 28
per week in the period around July 2006, Mr Johnson?---I
29
don't think I was paying that as a rule out of the – the
30
Monday treasury drawings, the $9000 figure.
31So that was on top of - - - ?---I think so. 1.:CS 10/12/08 2Cressy
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Yes, Mr Devries. DISCUSSION
1You think so?---Yes.
I was a very busy man, Mr Devries.
2Are you sure it's so?---Am I?
Sorry, what was the question?
3Are you sure that you were doing that?
I mean, it's your
4
money, it's a lot of money, as busy as you are you'd know
5
what you're doing with your money, particularly that sort
6
of figure?---My cash flow ran rapidly like the Amazon
7
River, I believe that's correct.
8And it was about $6000-odd per month?---Again, there was 9
nothing that regular, it was big lumps - - -
10HIS HONOUR:
I think we worked out yesterday that during that
11
period you managed to pay off a tax debt that would have
12
meant you were paying on average 6000 a month, whilst
13
they may have been irregular payments, nonetheless it
14
would come out on average as 6000 a month, is that right?
15
---Yes, but I think it's misleading as to the actual
16
flows of the cash because there were peaks and valleys.
17Yes?---Activity and hiatus. 18Now, that tax debt reduction, you say, didn't come out of the 19
$9000 cash that you were withdrawing on most Mondays, it
20
was over and above that, is that right?---I think so,
21
Your Honour.
22
rule I think it did, yes.
Some of it might have, but as a general
23Thank you?---Thank you, Your Honour. 24MR DEVRIES:
And there was $6000 per month for credit cards,
25
you said yesterday, is that figure still correct?---Yes,
26
yes, give or take a thousand either way, that's correct.
27Now, did you have any other regular commitments?---Lots – lots 28
of - - -
29Any lease payments that you were making out of that $9000? 30
---Lots, Mr Devries, I had lots of living expenses.
31I'm not talking about your living expenses, I'm talking about 1.:CS 10/12/08 2Cressy
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DISCUSSION
1
payments that you were committed to, like lease payments,
2
repayments of some sort.
3
when it suits me, Mr Johnson?---I think we've covered all
4
my legal commitments.
5
that I still use.
We'll get to living expenses
There was a carpark – the carpark
6And how much do you pay for that?---That was $175 a week.
That
7
was for Kathleen to park in the basement of my apartment
8
on the days she came in.
9I thought you gave evidence yesterday that there were – you had 10
three carparks?---I – at most times I've had six cars,
11
Mr Devries.
12I'm sorry?---Most times in the relevant period I've had six 13
cars.
14Right, how much did you pay for car parking spots for your six 15
cars?---When I moved from 909 to 2302 - - -
16No, we're talking about July 2006, Mr Johnson?---Yes, that's 17
when I moved from 909 to 2302, I went from one carpark to
18
two carparks in the building.
19So that would be your rent, 350 a week?---No, no, no, that was 20
built into the 2345.
21OK, so the other car park would have cost you, on average, per 22
month, $760?---No, exactly 175.
23You said 175 a week?---Did I? 24
I'm sorry, 175 a week, which is
what I still pay for it today.
25One hundred and 75 a week?---A month, Mr Devries. 26HIS HONOUR: 27
Were you paying that out of the cash you were
withdrawing?---Probably, probably.
28And I'm not sure - - -?---It was a fringe benefit for Kathleen, 29
while she worked for me, so I would adjust that out of
30
her payslip.
31And the credit card you were repaying each month, were you 1.:CS 10/12/08 2Cressy
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DISCUSSION
1
paying that out of the cash that you were withdrawing?
2
---Yes, yes.
3Right?---As a general rule, the bulk of the drawings on one 4
Monday would be to top up bank accounts to pay mortgages.
5M'mm?---Now, child support one direction, the following drawing 6
in the off week, if I may put it that way, would be the
7
credit cards and child support in the opposite direction.
8Right?---Thank you. 9MR DEVRIES:
Did you have lease payments or financing or
10
anything like that for any of your six motor vehicles?
11
---Not by that time, Mr Devries, and not for a number of
12
years prior.
13So you had no regular repayments in respect of those six motor 14
vehicles in July 2006?---No, I owned - - -
15You just - - -?---I owned all of them, because I think it was 16
four at that stage, and I owned them outright, none of
17
them are worth much.
18And you paid insurance, registration, and all of those 19
compulsory payments on the vehicle - - -?---Insurance
20
is - - -
21- - - four vehicles?---Insurance is for all the properties at 22
several levels, the compulsory insurance on the vehicles.
23Just talk about the vehicles at the moment, Mr Johnson?---I 24
never took out third party fire and theft, that sort of
25
insurance, it would have been quite prohibitive for all
26
four vehicles, there weren't suitable products on a
27
premium.
28Were they paid out of this 9000, all of your insurances, 29
whatever they were, and car registration fees, things
30
like that?---The aggregate of those annual costs is
31
relatively small compared to a $9000 - - -
1.:CS 10/12/08 2Cressy
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DISCUSSION
1I'm just asking you whether you paid for those out of the $9000 2
cash that you drew out?---The insurances for the
3
properties, I probably drew cheques separately, or the
4
agent paid them and netted them out of the coming month's
5
rent.
6
probably just cash that I had available out of those
7
$9000 drawings.
8
paid over the counter, or no, more likely I would have
9
paid by credit card over the phone, I think.
For the motor vehicles, the motor vehicles are
Yes, the motor vehicle rego I probably
So I think
10
separately, the insurances were paid by other fund flows,
11
not the cash I would be drawing out of the bank every
12
week.
13And you gave evidence that you had to do a lot of travelling 14
from Melbourne for Geelong to cater for your various
15
clientele spread between Melbourne and Geelong, so you
16
would have - did you do that, in motor vehicles at that
17
stage or by public transport?---Motor vehicles, which is
18
why I thought I deserved to have a nice, fun car, or a
19
selection of cars to use.
20Did your petrol come out of the 9000, or did it come out of 21
credit cards, or - - -?---The routine I hit on for
22
accounting purposes was I had a designated credit card to
23
pay that, so, as a rule - yes, I think I've answered the
24
question.
25You had your own living expenses on top of that?---Yes, and 26
extra moneys I'd give to Julie and extra moneys that I'd
27
get given or spend on the children, or - - -
28So the answer to the question about you had your own living 29
expenses is yes, is that right?---I lived somehow,
30
obviously the answer's yes, Mr Devries.
31
(indistinct) if that's what you're implying.
1.:CS 10/12/08 2Cressy
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285
I wasn't
DISCUSSION
1Leaving aside your tax debt, repayment, that comes to about 23 2
and a half thousand per month.
You've been - sorry,
3
living at your living expenses, leaving out the 6000 odd
4
dollars you might have been paying towards your tax, that
5
comes to about 23,500 per month?---I am comfortable with
6
that math, because it matches my 25 to $30,000 figure I
7
gave in previous answer to you, Mr Devries, yesterday
8
afternoon, that's my rule of thumb, whether I was above
9
water or going backwards.
10You said yesterday that that was paid out of net after tax 11
income?---Maybe I confused myself with terminology.
What
12
you've identified, Mr Devries, is on the numbers we
13
talked about yesterday, and I'm indebted to you for this,
14
in terms of what an accountant would call a funds flow
15
analysis.
16
funds in of 9000 and that whole list of expenditure, so I
17
must have had either other sources of funds or other
18
sources of income, and I'd accept both those
19
propositions.
20
from legal practice.
There were some gaps between my statement of
Well, apart from what I was earning as a -
21Well, you see Mr Johnson that if you had to have 23 and a half 22
thousand, the six and a half thousand being your average
23
tax debt repayment, you get to a neat figure of 30,000
24
and you still haven't factored in your living expenses
25
and moneys that you claim you paid my client and moneys
26
that you claim you paid your wife over and above the
27
2200.
28
Mr Devries, yes.
Do you understand what I'm putting to you?---I do,
29Let me cite your living expenses and what you say that you gave 30
my client which you know she disputes, and what you say
31
you gave to Ms Johnson?---Ms Cressy do you mean?
1.:CS 10/12/08 2Cressy
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DISCUSSION
1No, Ms Johnson?---Mrs Johnson, she hasn't changed her name, 2
Julie hasn't.
3I said "Ms".
That $30,000 per month post-ongoing tax.
Do you
4
still stick to those figures, Mr Johnson?---I do and I
5
can explain to you now or in re-examination what those
6
other sources of funds and other sources of income where
7
and that they had nothing to do with the plaintiff.
8How much did your income change between August 2005 and July 9 10
2006?---I think - and the answer will be in one of the exhibits, this is my retainer letters and - - -
11Just answer the question please Mr Johnson?---I think in that 12
period my hourly rate under retainer from Primelife leapt
13
from $180,000 to 200,000 - sorry, $180 an hour to $275 an
14
hour, a quantum leap and I think that is demonstrated in
15
the - - -
16How much did your average monthly income go up between August 17
2005 and July 2006, Mr Johnson?---I don't want to answer
18
more precisely than that because I don't have the
19
records, the bank statements or the tax returns because
20
they were unlawfully taken from my home in November last
21
year and they have been sitting rotting, with all due
22
respect to Federal Magistrate O'Dwyer, in his keep for
23
the duration.
24
any way, shape or form.
25
the gentleman, the custodian - - -
I can simply not access those documents in I did make an appointment with
26Mr Johnson - - 27HIS HONOUR:
We don't need that?---Thank you, Your Honour.
28There are some tax returns in the earlier exhibits you tendered 29
but I take it they don't contain the tax return for the
30
2006 financial year?---I don't imagine they would Your
31
Honour.
1.:CS 10/12/08 2Cressy
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DISCUSSION
1MR DEVRIES:
I have had a look for those, Your Honour.
I am
2
relying on Mr Johnson's acknowledged income in the - I
3
think it's the second last exhibit, the Guardian Mortgage
4
Insurance document.
5
$240,000 per annum.
6HIS HONOUR: 7
His gross income he declared at
For which year, the year ending 2005 that would
be.
8MR DEVRIES:
That was as at 4 August 2005.
9HIS HONOUR:
How much was it?
240?
10MR DEVRIES:
240,000.
11HIS HONOUR:
Gross.
12MR DEVRIES:
Gross.
13HIS HONOUR:
Yes?---Sorry, what was the month Mr Devries?
14MR DEVRIES:
This is - - -
15HIS HONOUR:
That document was signed on 4 August 2005, that's
16
Exhibit N?---That would have been based on 2003 tax
17
information possibly, maybe 2004 tax information at the
18
very recent.
19
14 months or a year after the tax year, so what you
20
submit to the bank you can imagine is always a minimum of
21
one year, sometimes two years in arrears.
Your tax returns are always prepared
22MR DEVRIES:
Mr Johnson - - -
23HIS HONOUR:
So you were understating for the purposes of
24
getting a loan, you were actually understating how much
25
income you had?---The banks make you do that because they
26
only look at your last tax return and that is generally
27
speaking a year or more in arrears.
28
information as well.
They ask for current
29Yes, they do?---But they don't accept the current information, 30
they only go by the tax return as hard evidence for the
31
purposes of their loan approval.
1.:CS 10/12/08 2Cressy
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DISCUSSION
1MR DEVRIES:
Mr Johnson, that figure was changed, altered and
2
you initialled it and you are holding out as a lawyer, an
3
officer of the court, a person that you think should be
4
believed because you have been a solicitor for a long
5
period of time, you are holding out that your gross
6
income was 240,000 per annum and that your total rental
7
income prior to the purchase of your investment property
8
was 20,800 per annum, which makes it 268,000 per annum
9
and you expected to get rental income of another $14,000.
10
Sorry, Your Honour, I thought you had that in front of
11
you?---Lots of statements by Mr Devries and I didn't hear
12
too many questions, Your Honour, but I can simply say
13
that that figure that was put into - - -
14I haven't asked you the question yet Mr Johnson?---Okay, I 15
withdraw.
16Occasionally allow me to have the floor, Mr Johnson.
You said
17
your gross income was 240,000 per annum, that your rental
18
income - - - ?---Sorry, was that a question?
19HIS HONOUR: 20
That is what is set out - - - ?---I didn't get to
answer Your Honour.
21That is what is set out in the document. 22MR DEVRIES: 23
Yes, I am setting the scene for my question,
Mr Johnson.
24HIS HONOUR:
Do you have a copy of that exhibit in front of
25
you, Mr Johnson?---I don't but I recall from glancing at
26
it a moment ago, I don't have it.
27Do you wish to see it?---I don't need to, Your Honour, the 28
answer is really simple.
29
setting to proceed it, Your Honour.
30MR DEVRIES: 31
It doesn't need too much scene
The rent figures were gross rental figures,
weren't they, they weren't net of outgoings on the rental
1.:CS 10/12/08 2Cressy
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289
DISCUSSION
1
properties, is that correct?---They would have been net
2
of everything except the mortgage payments.
3
have been net of the managing agents commission and they
4
would have been net of any repair work that had been done
5
to the property.
They would
6So you are getting - you were netting exactly $200 per week for 7
each of those two properties after repairs, agents
8
commissions, agents costs and so on?---Which properties
9
were they, Mr Devries?
10Rental property income - two rental income, three - they're 11
your documents?---I believe they're your documents
12
Mr Devries.
13Presumably Hawkhurst Court, Hoppers Crossing is one and Lisa 14
Court, Hoppers Crossing is the second one?---I believe
15
that's accurate because I had a good tenant at that time
16
in 2005.
17
and her boyfriend - - -
At the Hawkhurst property and Ms Cressy Senior
18I am just asking you whether there was $200 - - - ?--- - - 19
were paying about $180 a week in rent and they were
20
actually paying their rent for Lisa Court at that stage,
21
so yes, I think that's about right, it would have been
22
around about $200 a week, a little above for Hawkhurst
23
Court and a little below the $200 benchmark for Lisa.
24
But yes, the cash was flowing and there were very little
25
outgoings on that.
26You do persist in having difficulty in answering a simple 27
question in brief, don't you Mr Johnson?---I disagree.
28HIS HONOUR:
Ask the question again.
29MR DEVRIES:
Yes.
According to this document, leaving aside
30
the property you were intending to purchase, your gross
31
income was $260,800, that's what that document says isn't
1.:CS 10/12/08 2Cressy
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290
DISCUSSION
1
it?---Is that based on the practice income.
2
figure you gave me was 240.
I think the
3240 plus 10,000 plus 10,000 makes 260,000, there's a couple of 4
$400 as well, so 260,800?---The answer to that question
5
is yes, Mr Devries.
6You were expecting to get another $14,000 income on top of 7
that?---Being the income from the rental of Gibson
8
Street, yes.
9Out of that 240,000 you would be paying tax to make provision 10
for tax, leaving aside accrued arrears tax?---No, because
11
that 260 was substantially a historical figure being
12
taken out of my income tax return for the year ending
13
2004.
14It's a gross income?---Yes. 15I put to you, Mr Johnson, that you are not being frank, candid 16
and truthful in suggesting that figure was two years out
17
of date on that document?---I put it to you, Mr Devries,
18
you are making more vile statements which are unbecoming
19
of an officer of this court.
20
statements and I shall answer the question properly in
21
re-examination unless Your Honour invites me to give the
22
simple explanation right now.
I disagree with the
23I am not going to fall for that trap again Mr Johnson?---Then I 24
ask you, Mr Devries, to withdraw your vile remarks about
25
me.
26HIS HONOUR:
You will simply answer the questions, witness?
27
---Excuse me, Mr Devries, sorry for interrupting, Your
28
Honour, but as defence counsel I would again ask for a
29
relevance check.
What relevance does this - - -
30This is relevant, it's cross-examination that goes to your 31
financial means during the relevant period?---But how
1.:CS 10/12/08 2Cressy
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291
DISCUSSION
1
does it go to the assertion that Ms Cressy contributed
2
money to my living or to my properties.
3Testing your assertion that you were the sole means of support, 4
as I understand it?---Testing the past - - -
5You may proceed, objection overruled. 6MR DEVRIES:
May it please Your Honour.
If that document is
7
accurate, your gross weekly income was $5,285,
8
Mr Johnson, out of which you were paying about $2,000 a
9
week more than that?---Mr Devries, I have already
10
answered that that is accounting information that is
11
presented, it's no more accurate than a public company's
12
reported balance sheet to the Australian Stock Exchange.
13
It's accurate as to the current asset value of the
14
assets.
15But you see, Mr Johnson, you're the one who signed off on it? 16
---That's not in doubt, Mr Devries, they are my
17
signatures, I did obtain those - - -
18In your submissions - perhaps you could keep your submissions 19
to another time and we could move on.
Now, you said that
20
you were such a busy man you didn't have time to fill out
21
documents and you left them to other people to fill out,
22
do you recall giving that evidence?---Yes, that was this
23
morning, Mr Devries.
24During the course of your evidence you said you worked up to 25
120 hours a week, was that a mistake and did you mean up
26
to 120 hours a fortnight or did you genuinely mean 120
27
hours a week?---Look, that's an exaggeration, there would
28
be fortnights where I would record and charge Primelife
29
for 110, 112 hours a fortnight.
30I'm not asking you what you charged for - - - ?---Another 31
20 hours as a rule of time that I did for Barwon Water.
1.:CS 10/12/08 2Cressy
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DISCUSSION
1Sorry, the question Mr Johnson was was the 120 per week that 2
you said a mistake either of yours or the transcript and
3
did you mean 120 a fortnight.
4
or no?---There were lots of peaks, not many valleys, the
5
Mt Kosciuszko of the peak would be 120 hours a week.
The answer is either yes
6So you meant 120 hours a week but not 120 hours a fortnight 7
when you gave that evidence, is that correct?---I just
8
answered that questions, Mr Devries.
9Is that correct?
We haven't because you keep dancing around.
10HIS HONOUR:
Just move on please.
11MR DEVRIES:
Sorry, Your Honour?---Thank you, Your Honour.
12I am hoping to finish before lunch, Your Honour. 13
the time.
14HIS HONOUR: 15
It's not so much time, you will have to bring some
point to these questions.
16MR DEVRIES: 17
I am aware of
I am, Your Honour, I am hoping that it becomes
clear after two or three questions.
18HIS HONOUR:
M'mm.
19MR DEVRIES:
So you're spending up to 120 hours a week working
20
for your various clients, is that correct?---My minimum
21
obligation were 50 hours.
22It's was up to 120 hours, Mr Johnson. 23HIS HONOUR:
You just said your Mount Kosciuskos were 120, you
24
said there were more peaks than valleys?---There were
25
very few valleys.
26Right, and a lot of peaks, you were saying?---Yes, yes. 27Yes?---So by minimum, by minimum - - 28Do you want to change that?---No, Your Honour. 29Or are you sticking to the evidence you gave a moment ago? 30
---Absolutely, Your Honour.
31Let's stay with that. 1.:CS 10/12/08 2Cressy
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Mr Devries? 293
DISCUSSION
1MR DEVRIES:
Thank you, OK, and what were your minimum
2
obligations in terms of hours per week?---I'm indebted to
3
my learned friend for that question.
4Just answer the question. 5HIS HONOUR:
You don't - you just answer the question?---Thank
6
you, Your Honour.
7
with - - -
8MR DEVRIES: 9
They set out in the exhibits
Just answer the question, in terms of hours,
Mr Johnson, without a speech?---They are in evidence for
10
His Honour in exhibits.
11
was earning - - -
For Primelife, typically, when I
12Just a total figure, Mr Johnson, please?---Thirty hour minimum 13
for Primelife, 20 hour minimum per (indistinct) and I had
14
other clients, so small clients as well.
15Not less than 50 hours per week?---Yes, Mr Devries. 16Probably not less than 60 hours per week?---It'd be rarely 17
under 80 hours per week, Mr Devries, as the evidence will
18
demonstrate.
19So the range is 80 hours to 120 hours per week?
Do you have to
20
write down the question before you can answer it?---I do,
21
because I may not have a transcript for the purpose of
22
re-examination.
23Are you - - 24HIS HONOUR: 25
Just answer the question?---I think - if you got a
sample of numbers, 120 would be at the high end.
26Yes?---There'd be very few down in the zeroes or the tens or 27
the 20s.
The 80 would be the mode or the mean.
28Right?---For that sample set, Your Honour. 29We'll work on those figures. 30MR DEVRIES: 31
Does that include all the travel you had to do to
service your clients between Melbourne and Geelong?---I'm
1.:CS 10/12/08 2Cressy
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DISCUSSION
1
in an ethical law firm, and I don't charge for
2
travelling.
3I'm not asking your - - 4HIS HONOUR: 5
Well, that 80 to 120 hours guesstimate by you does
not include travelling time?---No, Your Honour.
6Right. 7MR DEVRIES:
What would your average number of hours per week
8
be in the motor vehicle for work purposes?---Most
9
commonly I would be driving from Bourke Street to - - -
10Just give us - - -?---Five minutes. 11You didn't have to travel to Geelong at all?---Most days I'd be 12
working at Primelife, which was either in Collins Street,
13
so it was a walk in the early days, I'd be driving down
14
Kings Way, and I had a parking spot down there to - - -
15So the answer is you didn't travel to Geelong?---The answer is 16
most days I worked in South Yarra.
17
one day a week, I might go one day a month.
18
happy with me, they knew me, I could work offsite, as if
19
I was in the Lorne office or the Apollo Bay office, South
20
Geelong office, it didn't matter to people that I wasn't
21
in the Geelong office.
22HIS HONOUR:
I might go to Geelong They were
So the Geelong trips - - -
The short answer is you would go there once a
23
week, once a month?---I would try for once a week, but
24
sometimes I was so busy with Primelife I might not get
25
there for a whole month.
26Right, well, that's all we need as an answer?---Thank you, Your 27
Honour.
28MR DEVRIES:
Did you work seven days a week, six days a week,
29
or five days as a week as a norm?---I was living a
30
fortnightly cycle, which was driven by - - -
31Just - can you answer the question? 1.:CS 10/12/08 2Cressy
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295
DISCUSSION
1HIS HONOUR: 2
Well, per fortnight, how many days per fortnight
did you work?---Eleven, 12.
3So at the high end of the scale, you were working 20 hours a 4
day, and at the low end of the scale, you were working 12
5
hours a day, doing your - on the days you were working?
6
---The 20 hours a day would be required to - if it was an
7
120 hour week, yes, there'd be many of those.
8
often work a 36 hour shift straight, just as I had in my
9
Minter Ellison days.
I might
When I'm healthy, I don't need a
10
lot of sleep, I had almost a barely figure sleep at all
11
this week, Your Honour.
12MR DEVRIES:
So you agree with me - actually, the figure is -
13
if you work 12 hours a fortnight, 80 hours a week, you're
14
working 13 hours on those days you were working, 13 on
15
the third, and you're working 120 hours a week, perhaps
16
spread over 12 days, that's 20 hours on those days.
17
you agree with those figures?---Save that I - I might
18
have billed 15 or 16 days into that fortnight to get the
19
120, I had a little bit of latitude whether I rendered my
20
bill as of a close of a Friday or close of a Monday.
21HIS HONOUR:
Do
We're not asking - Mr Devries is not asking about
22
your billing, he's asking about the actual hours worked,
23
and you understand that, so do not be evasive, answer the
24
question?---Forgive me, Your Honour.
25I don't.
Answer the question?---I would rarely work less than
26
12 hours a day, except for those days that I had David,
27
Dylan, and Jessie with me, and/or Treece, Skye, Illyana,
28
and all six of them with us.
29MR DEVRIES:
I'm going to keep asking you the question until
30
you choose to answer it, Mr Johnson, or until His Honour
31
rules me out of order.
1.:CS 10/12/08 2Cressy
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Your average working day for the 296
DISCUSSION
1
12 days a fortnight that you worked would range between
2
13 hours and 20 hours per day, is that correct?
3
billing hours, but actual time you were working?
4
---Thirteen would be normal, 20 would be extreme.
Not
5And this was your pattern right from the time you met my client 6
until about the middle of 2007, is that correct?---Not
7
correct.
8Most of that time that you worked a minimum of 13 hours a day, 9
12 days a fortnight on average?---Most of the time I
10
lived at Gheringhap Street I worked less than that.
11
There would be periods when client demand didn't
12
necessitate me to work that long.
13
board and managerial upheavals.
14
through Primelife while I was there, so on a number of
15
occasions my three month retainer looked like getting cut
16
after three years or after four years.
17
hiatus where I would not have any funding from there for
18
a while, and then suddenly I'd be back in.
19
another broom - - -
There were a number of Several new brooms swept
I would have a
There'd be
20I'm not talking - - -?---- - - vacuum cleaner and then my – my 21
earnings would increase by 150 per cent.
22Did you understand, Mr Johnson, I'm not asking about your 23
income situation.
I'm asking about the number of hours
24
you devoted to your work.
25
Mr Johnson, is that during the period of time that my
26
client says there was a relationship between you and her,
27
the evidence you've given to His Honour over and over
28
again is that you were a very hardworking person and that
29
you put a lot of hours into your work.
30
that.
31
many hours you devoted to your work, and that has nothing
What I'm putting to you,
I'm not disputing
What I'm trying to do is put a finger on about how
1.:CS 10/12/08 2Cressy
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297
DISCUSSION
1
to do with your income situation.
I'm just trying to put
2
a finger on how much time you spent working.
3
agree with me that throughout most of that relationship
4
you worked a 12 day fortnight and you averaged about 13
5
hours a day at your work?---Your Honour, there's a lot of
6
assumptions in the way that question was put.
Now, do you
7So you don't agree with that?---It's very hard to – one single 8
figure over a ten year work history where there were
9
multiple businesses.
10HIS HONOUR: 11
You've told me that you averaged 80 hours a week?
---This is looking at the period - - -
12What period is that?---OK, thank you, Your Honour. 13 14
The period
after I had my dual retainers for Primelife and Melbourne - - -
15So that's from about 2002 onwards?---I think that was late – 16
late – I'm – I'm trying to – late 2001.
17Late 2001 until?---Up to very early – between Christmas and 18
Easter 2007.
19You were working an average 80 with going up to a 120 hour 20
week?---During – during that - - -
21During that period?---During that period. 22MR DEVRIES:
Thank you.
I'm indebted to Your Honour for that.
23
(To witness) Now, those hours that you spent working for
24
your clients that was over and above all your other
25
activities on Law Institute boards, writing articles for
26
the Law Institute Journal and other journals, giving
27
papers and so on and so forth isn't it?---I wasn't doing
28
very much of that even at the early part of that period
29
we've just discussed.
30So you did all of that before 2001?---The bulk of this I 31
would've done during my Minter Ellison period.
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298
I DISCUSSION
1
continued writing the monthly column up until I think
2
2002.
Maybe 2003 but not beyond that.
3You gave up all your other - - -?---I gave up the seminar 4
circuit, yes, Mr Devries.
5Sorry?---I gave up the seminar circuit, yes. 6You gave up all your other Law Institute activities from 7
sometime around 2002?---My chairmanship of the GST
8
taskforce ended after nearly three years.
9
was late 2000, early 2001.
I guess that
It's – it's my (indistinct)
10
document which maybe I can give to His Honour in
11
re-examination or I'm happy to do that now.
12I'm just trying to find out about that extra time, and the 13
reason that you say that we're talking about a 12 day
14
cycle out of 14, is that the other two days you generally
15
had the Johnson children with you?---From the Friday
16
early evening through until the Sunday evening, yes.
17
the Sunday evening and the Monday morning would be my
18
transformer period hence that particular Monday every
19
fortnight being my treasury day.
20So 12 days a month you're working.
So
Two days – sorry, 12 days a
21
fortnight you're working.
Two days a fortnight you're
22
with the Johnson children?---Yes, every second weekend
23
for that.
24Whilst you had the Johnson children with you you were a devoted 25
dad to them weren't you?---Thank you, Mr Devries, yes.
26You were in substantial attendance with them. You did activities with them.
You spent time
27
with them.
Is that
28
correct?---I was sole parent with them, Mr Devries, yes,
29
of course.
30My client says that you were sole parent along with her but 31
whether she was there or not you devoted yourself to the
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DISCUSSION
1
interests of the children, and the activities of those
2
three children is your evidence?---Of course and I'm
3
happy to answer this line of questions, Your Honour, but
4
defence counsel wants to know the relevance to this - - -
5HIS HONOUR: 6
They're relevant.
Continue on?---I'm sorry, Your
Honour?
7It's relevant to the evidence you've given?---Thank you, Your 8
Honour.
9Continue, Mr Devries. 10MR DEVRIES:
I'm very frightened by what Your Honour's
11
associate has in front her.
I suspect it's something
12
that I'll have to read before the end of this matter.
13
looks awfully thick.
14
evidence you've just given is true and correct, then I
15
put to you it is impossible for you to have done all
16
those things that you said you did in respect to your
17
various properties.
18
do landscaping, picking up bits and pieces, painting,
19
cleaning, removing carpets, rendering and all that and I
20
put that to you?
21
available for you to do that?---I put it to you
22
Mr Devries that you are finally holding the telescope
23
with your eye to the eyepiece but you're still not seeing
24
the view out the other end.
It
(To witness) Mr Johnson, if the
You just would not have had time to
There's just not enough hours or days
25So the answer is you agree with me? 26HIS HONOUR: 27
He disagrees with you?---Most emphatically, but I
am flattered that there is - - -
28I am not interested in you being flattered, you have answered a 29
question, just stay with that?---Thank you, Your Honour.
30MR DEVRIES: 31
Most of these properties that you say that you
worked on are some distance from where your place of work
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300
DISCUSSION
1
was, weren't they?---Bearing in mind, Mr Devries, I'm
2
saying there wasn't much work done on the properties that
3
wasn't done by persons in my paid employment.
4
persons independent of Ms Cressy, commercially
5
obtainable.
Typically
6Would you just like to answer my question please, what is the 7
answer to my question Mr Johnson?---Thank you, I believe
8
I was answering it first - - -
9HIS HONOUR: 10MR DEVRIES:
Repeat the question again. I asked you whether the bulk of the properties you
11
said that you worked on were located some distance from
12
your main place of work, being the centre of the city;
13
the answer is either yes they are or no they're not?
14
---The addresses are in evidence and they are not
15
contested.
16
some distance away or not.
17HIS HONOUR:
It's a question of judgment whether they are
You were working in the city?---Yes, Your Honour.
18And these properties are located Hoppers Crossing, Point Cook 19
and Altona.
20MR DEVRIES:
Torquay, Grovedale?---Well, I deny anything to do
21
with Grovedale.
Torquay was as of - when I moved in as a
22
tenant in September last year, so that's not the relevant
23
period.
24
rip up some stringy carpets.
I did very little at Altona except assisting to
25Sorry, what has that got to do with the distance, that was the 26
question you were asked?
27HIS HONOUR:
I think the witness has answered, the distance
28
does speak for itself.
29
witness is working the large hours that he claims to have
30
worked, he was looking after his children, that he would
31
not have had time to carry out the work, particularly
1.:CS 10/12/08 2Cressy
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What you were putting to the
301
DISCUSSION
1
given that it was at locations that were not close to the
2
premises at which he was working and saying he was
3
living, and that is the proposition put to you Mr
4
Johnson, do you agree with it or disagree with it?---I'm
5
saying that there was very little work done to the
6
properties, other than by people in my employment.
7
very little work because very little work needed doing.
8Thank you. 9 10
I did
So you did very little physical work on any of
those properties?---Very little physical work was done, Your Honour, by anybody.
11MR DEVRIES:
I put to you that my client has given very
12
explicit and detailed evidence of the work that she has
13
done on the various properties and I put to you that her
14
account is true and correct of the work she did on those
15
properties?---I believe that the evidence she has given
16
is correct as to the description of the work, but her
17
evidence as to the volume of the work is exaggerated and
18
her evidence as to the funding arrangements is totally
19
wrong, all moneys I either provided to her or I may
20
reimburse smaller bits later.
21
did the work is also misrepresented by the plaintiff.
22
These were job creation schemes to give her some money
23
and some interest.
24
she was in my employment receiving my payslips.
25
witness has misrepresented the character in which I paid
26
her by saying she did office work.
27
not an office worker and I don't mean any criticism by
28
that.
The character in which she
The bulk of the work was done whilst The
Your Honour, she is
29That has got nothing to do with - - 30HIS HONOUR: 31
No, that's not part of the question Mr Devries has
asked you.
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302
DISCUSSION
1MR DEVRIES:
Thank you, Your Honour?---But most of it was in
2
that Donald Trump Apprentice type situation where I was
3
trying to get her interested in - give her an interest in
4
the property, teach her some of the facts of life.
5That's not answering my question - - 6HIS HONOUR:
Well, you did put a broad question and he has
7
answered it.
He has disagreed with the amount of work
8
that she did.
9
them because he reimbursed her and he is also saying that
He said that in fact she did not pay for
10
this was work done by your client in her capacity as a
11
paid employee of himself?---And one of the facts - - -
12MR DEVRIES: 13
I will come back to that in a moment, Your Honour.
Mr Johnson - - - ?---(Indistinct.)
14No, I am going to ask you - - - ?---In what other capacity Your 15
Honour?
16I am going to ask you my next question Mr Johnson. 17HIS HONOUR:
Just listen to the question Mr Johnson.
18MR DEVRIES:
On your account, apart from between 2003 and 2005
19
you didn't reside in the same premises as my client, is
20
that correct?---Yes, it's correct Mr Devries.
21Over all of that period of time, whether you include the time 22
you were living with her or not you were working
23
extremely lengthy hours, is that correct?
24HIS HONOUR: 25
Well, he has already answered that obviously?
---Yes, yes, obviously.
26MR DEVRIES:
I put it to you either on your account that you
27
didn't live with her very much, if at all, or that you
28
were working long hours or a combination of both there is
29
no way you could have given the evidence to His Honour
30
from your own observations of what my client did during
31
the day, the things that you say she did and the things
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303
DISCUSSION
1
you said she didn't do because you just weren't there to
2
observe, you couldn’t have been there to observe; do you
3
agree or disagree?---I totally disagree and I can give
4
detailed answer to that question either now or in re-
5
examination as Mr Devries or Your Honour wish.
6Your Honour, could I have a look for a moment at Exhibit 43? 7HIS HONOUR:
Yes.
8MR DEVRIES:
Do you have a copy of my client's pay slips that
9
you handed up yesterday, Mr Johnson?---I don't Mr Devries
10
but I probably don't need one, if I do during the
11
question I will ask for one.
12So the answer is no?---No, Mr Devries. 13Now, on many of these documents it says things like, "Paid 500, 14
retained 4000" – I'll take you to the specific ones?
15
---Yes.
16I'm having trouble reading a year to date, Your Honour, which 17
says, "200, 50, 304".
18
20 May in the 03/04 financial year?---It's an accounting
19
– American convention - - -
20HIS HONOUR: 21
I presume that's year to date to
What does it mean?---2005 is the year, 03 is the
month, 04 is the day.
22MR DEVRIES:
OK, the year to date to 3 April 2004 you paid $500
23
and you retained 2400.
Why did you retain her income?
24
---That would have been a period where my cash flow was
25
tight because I had the brunt of the tax debt and an
26
instalment plan.
27
stage - - -
Gibson Street hadn't settled at that
28So the answer is you were short of money to pay her over that 29
period of time?---That is part of the answer, Mr Devries.
30And up to 17 June 2005 you retained a total of $5000?---That 31
sounds familiar.
1.:CS 10/12/08 2Cressy
FTR:1
What was that date, Mr Devries? 304
DISCUSSION
117 June 2005?---Thank you, Mr Devries. 2Is that correct?---That – that coincides with my memory, 3
Mr Devries.
4And you also withheld, from time to time, superannuation from 5
her payment, did you?---Ms Cressy was on an hourly rate,
6
I think, of $25 - - -
7So is the answer yes or no that you retained superannuation? 8
---Not retained, but - - -
9Did you pay - - - ?---The 9 per cent super guarantee, yes, I 10
did.
11You did?---Yes. 12Who did you pay that superannuation to?---I put that into a 13
self-managed superannuation fund that I established.
14And where is that money now?---600 Bourke Street, Melbourne, 15
ANZ Bank, Mr Devries.
16And how much is standing to her account in that super fund? 17
---There would have been no contributions to that fund
18
since - - -
19How much is currently standing to her account in that 20
superannuation fund, Mr Johnson?---I don't know, because
21
those bank statements were stolen – unlawfully taken from
22
my house.
23You are the – I presume you are the trustee or the director of 24
the trustee of that superannuation fund?---I am one of
25
two trustees, Mr Devries.
26And you've got access to that bank account any time you like, 27
and you can just roll up to the bank, or any branch of
28
that bank, and say "Can you give me the current account
29
figure, current balance", can't you?---I could do that,
30
as could your client, Mr Devries.
31Is she a trustee of the - - - ?---Yes, she is, Mr Devries. 1.:CS 10/12/08 2Cressy
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305
DISCUSSION
1Well, she's totally unaware of being a - - 2HIS HONOUR: 3
Well, you live and learn, Mr Devries.
Is this
relevant to this case?
4MR DEVRIES:
Well it is a financial resource which - - -
5HIS HONOUR:
If you want to finish this case this week let's go
6
for the – down the middle.
7MR DEVRIES:
I'm on the downhill - - -
8HIS HONOUR:
Often how premierships are won; straight down the
9
middle, particularly in 2008.
Now, let's keep going.
10MR DEVRIES:
My team doesn't win premierships, Your Honour.
11HIS HONOUR:
Yes, well you - - -
12MR DEVRIES:
That's why.
13WITNESS:
I believe the dollars involved are under 2000.
14MR DEVRIES:
And what about your own superannuation?
How much
15
do you have?---My superannuation – I have no idea,
16
particularly with the global financial crisis, and I
17
would ask the relevance.
18Approximately how much do you have?---Twelve months ago, I 19
guess, across several funds, perhaps about 80,000.
20
have made no contributions for perhaps five years, except
21
to get minimally the benefits I have a - - -
22HIS HONOUR:
I
Mr Johnson, you were asked a simple question.
You
23
say 12 months ago your understanding is your balance of
24
your superannuation funds was $80,000?---Yes.
25All right?---And since the global financial crisis - - 26I know what has happened in the economy, you don't need to keep 27
repeating it.
28MR DEVRIES:
Now, Mr Johnson, you gave evidence about payments
29
that you claim that you made towards my client's
30
household and I'm going to suggest to you that the same
31
dollar seems to have been represented by you over and
1.:CS 10/12/08 2Cressy
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306
DISCUSSION
1
over again.
You claimed to the Child Support Agency that
2
you've made non-agency payments to my client and
3
therefore that should be treated as being in lieu of
4
statutory child support payments, is that correct?
5
---Mr Devries, my name is not Pippin, this is not without
6
expectations, I only apply every dollar once, not to
7
three persons - - -
8Would you now like to answer my question?---Excuse me? 9Would you like to answer the question (indistinct) making a 10
statement?---Charles Dickens was talking about - - -
11HIS HONOUR:
Mr Johnson, that sort of answer gets you nowhere
12
in front of me.
13
playing games and behave yourself.
14
Mr Devries?
15MR DEVRIES:
Now, you're an intelligent man, stop
May it please, Your Honour.
Ask the question,
(To witness) You
16
stated to His Honour, in fact you handed up an exhibit
17
which showed non-agency payments that you had made to my
18
client, that was in a document you provided to the Child
19
Support Agency – a copy of the document you provided to
20
the Child Support Agency.
Do you remember that?---Yes.
21And the reason you put that forward was that you wanted the 22
Child Support Agency to take account of your non-agency
23
payments in lieu of child support that you would
24
otherwise have to pay.
Is that correct?---Yes.
25Yes, so you had an obligation to pay child support and you paid 26
that by way of those non-agency payments that you listed
27
in that exhibit; is that correct?---I believe I have
28
always had an obligation to pay child support payments
29
for Illyana since her birth, yes, the answer is correct.
30In fact you paid child support for the three children for a 31
while, didn't you?---You could say four children if you
1.:CS 10/12/08 2Cressy
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307
DISCUSSION
1
were that indiscreet regarding Ms Cressy Junior.
2
a bundle of money for a family purpose.
I paid
3Why did you have to make that gratuitous, insulting comment? 4HIS HONOUR:
Let's just stick to the point.
5MR DEVRIES:
Sorry, Your Honour.
6HIS HONOUR:
I'm aware of some of the remarks he has made, they
7
do him no credit.
8MR DEVRIES: 9
You paid child support for a period of time for
all three Cressy children, didn't you?---Yes, in the
10
early days it was managed by the Child Support Agency.
11
From 2003 onwards it was not managed by the Child Support
12
Agency.
13
Support Agency managed again.
In I think October/November 2007 it became Child
14For what period of time did you make payments either to the 15
Child Support Agency or otherwise for child support in
16
respect of all three Cressy children?---There's a number
17
of steps in that question.
18
answer, Your Honour.
19HIS HONOUR:
I want to be helpful with the
Well, be?---Thank you, thank you.
I would give
20
Ms Cressy money and then when non-Agency benefits
21
including the house to live in - - -
22MR DEVRIES:
Just cover the - tell us the period of time that
23
you claim that you made payments either directly to my
24
client or to the Child Support Agency by way of child
25
support or in lieu of child support for the three Cressy
26
children.
27
to know how much.
28HIS HONOUR:
I don't need to know the details, I don't need
Just the period of time?---I only ever got letters
29
from the Child Support Agency requiring me to make
30
payments in respect of Illyana.
31
would have been after June, before Christmas 2000.
1.:CS 10/12/08 2Cressy
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308
The earliest occasion
DISCUSSION
1So the answer is you have never made Child Support payments 2
directly to the Child Support Agency or indirectly to my
3
client in lieu of payments to the Child Support Agency
4
for Treece and Skye, is that what you're now saying?
5
---There's a few steps in the question.
6HIS HONOUR:
No, there's no steps, they're very straightforward
7
questions.
8
or not?---Forgive me, can I hear the question again?
9MR DEVRIES:
Is that a correct statement of the position
You are only playing for time, Mr Johnson.
Is
10
your evidence now that you have never - I will break it
11
up to two, make it simple for you?---Thank you,
12
Mr Devries.
13Is your evidence now that you have never made any payments to 14
the Child Support Agency for child support on account of
15
either Treece or Skye Cressy?---I've never been required
16
by the Child Support Agency - - -
17HIS HONOUR: 18
Have you ever paid them?---And I've never paid
them.
19Thank you, now that is a very simple question?---Yes, nice and 20
simple.
21Mr Devries. 22MR DEVRIES:
And you have never made any payments to my client
23
therefore directly to her in lieu of any child support
24
payments due to the Child Support Agency in respect of
25
either Treece or Skye?
26HIS HONOUR: 27
Is that statement correct?---That's a repeat of
the principal question.
28No, it is not.
Is that statement correct?---I've never - - -
29MR DEVRIES:
Do I need to repeat the statement?
30HIS HONOUR:
Repeat the question once more.
31MR DEVRIES:
I suggest you don't write, you can do one thing at
1.:CS 10/12/08 2Cressy
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309
DISCUSSION
1
a time, either listen or write, you can't do both
2
Mr Johnson.
3HIS HONOUR:
Just put the question again please.
4MR DEVRIES:
I'm sorry, Your Honour, but having to repeat
5
myself is - - -
6HIS HONOUR:
What are you putting to him.
7MR DEVRIES:
Is your evidence that you have never made any
8
payments directly to my client in lieu of any payments
9
required to be made to the Child Support Agency for child
10
support in respect of either Treece or Skye or both of
11
them?---My evidence is that I have never had a legal
12
obligation to make any child support payments either
13
directly to Ms Cressy or to the Child Support Agency for
14
either of those boys.
15HIS HONOUR: 16
And you have never made any such payments?---I've
made gifts without legal obligation Your Honour.
17But not Child Support payments?---I've made gifts for the 18
purposes of the children but they don't have to then be
19
taken as a Child Support obligation, I'm not their
20
biological dad.
21All right.
Mr Devries.
22MR DEVRIES:
Your Honour - - -
23HIS HONOUR:
Exhibit 18.
24MR DEVRIES:
I am indebted to Your Honour.
I have trouble with
25
reading my handwriting Your Honour.
So all these
26
payments are post what my client (indistinct) is that
27
right?
28
---Clearly yes, Mr Devries.
This covers 1 October 2000 to 27 February 2008?
29Yes, did you make similar claims for non-agency payments prior 30
to that time?---No, because there was no need to,
31
Mr Devries.
1.:CS 10/12/08 2Cressy
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310
DISCUSSION
1The Lisa Court lease to Gail Cressy has been used by you to 2
prove the lease payments on various of your loan
3
applications, would you agree with that?---Yes.
4And your evidence is that the lease does not accurately reflect 5
the payments that you actually received from Ms Gail
6
Cressy?---That's my evidence and Gail Cressy's evidence
7
also, Mr Devries.
8But you're quite happy to hold out to various lenders that she 9
actually paid you the full amount of the lease payments?
10HIS HONOUR:
What's your answer to that?---I've never held out
11
to lenders that she paid the full lease payments.
12
The - - -
13MR DEVRIES: 14
Never - - -?---- - - always record the actual - -
-
15You never said - you handed up the lease payments, you handed 16
up copies of the lease, you never said in any documents,
17
"But I'm not getting the full amount of this lease
18
payment", did you?---That would have been - - -
19You didn't, did you?---- - - obsessed with detail, Mr Devries. 20
No, I didn't qualify - - -
21But that's easy - - -?---- - - in the applications, no. 22Now, you claim that my client failed to return to you boxes of 23
documents that have been stored at her premises, is that
24
correct?---Yes.
25And those documents - - -?---Sorry, not correct as regards to 26
Exhibit 1, Mr Devries, but in respect of 39/40, those
27
documents, yes, correct.
28So how many boxes of documents do you say she withheld?---The 29
documents described by her counsel, Mr Richard
30
Ingleby - - -
31No, no, just - I'll ask you the question - - 1.:CS 10/12/08 2Cressy
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311
DISCUSSION
1HIS HONOUR:
Just give a straight answer, this is doing your
2
credit no good?---I answered that in my previous
3
question, I think that there were about 40 such folders
4
all up - - -
5Right. 6MR DEVRIES:
How many boxes did they comprise?---I can't even
7
put my hand on my heart and say they were in boxes,
8
Mr Devries.
9
thrown into sturdy garbage bags.
They may have been loose, they may have been
10Exhibit 1 is the blue plastic folder of documents relating to 11
7 Inverloch Drive, is that correct?---My original
12
purchase of that property, yes.
13And there would have been, you say, a similar folder, different 14
colour, in respect of each of other six or seven
15
properties?---Multiple folders, because there was
16
construction contracts, there were several layers of
17
financing, there were draw downs.
18
listed in one folder, most of them would take six, seven,
19
eight folders.
This was the only one
20Are you suggesting, are you, that there were eight or nine 21
folders for each property of that thickness of that one?
22
---Yes, exactly, yes.
23Have you been to the Federal Magistrates' Court to inspect the 24
documents that were delivered by the - documents and
25
other items delivered by the Victoria Police to the
26
Federal Magistrates' Court under subpoena?---Yes.
27Have you done an inventory of what they have?---No, I've had a 28
quick glance.
29Only a quick glance? 30
They were released for you to inspect and
to photocopy, weren't they?---Yes.
31And in addition to documents, there were two mobile telephones, 1.:CS 10/12/08 2Cressy
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312
DISCUSSION
1
is that correct?---Yes.
2And you had a look at those at the Federal Magistrates' Court? 3
---Yes, and briefly at the Werribee Police Station.
4I'm only asking about the Federal Magistrates' Court, and you 5
have no reason to believe, have you, that those documents
6
still are not there?---I made an appointment on Friday
7
before court to see them, and based on that, the
8
gentleman (indistinct) said come back Friday morning and
9
you can look at them then.
I did that after court on
10
Thursday, if he'd wheeled out the boxes, I would have
11
only had ten minutes to look at them.
12
appointment because of other priorities on the Friday
13
morning.
I didn't keep that
14So the answer to my question is you have no reason to believe 15
that those documents still aren't in the safe custody of
16
the Federal Magistrates' Court of Australia?---This is a
17
totally different set of mysteriously missing documents,
18
as I explained in my evidence-in-chief.
19The documents that were delivered up until subpoena I'm asking 20
you about, you have no reason to believe that they're
21
still not within the - - -
22HIS HONOUR:
Well, he hasn't said - he has not said otherwise.
23MR DEVRIES:
Yes?---Your Honour, the plaintiff said in her
24
evidence - - -
25HIS HONOUR:
Mr Johnson, I have already made the appropriate
26
response, you will just listen to the next question and
27
we will try to finish this cross-examination shortly, I
28
would hope?---Defence counsel wishes to interrupt and say
29
Mr Devries is confusing the two different sets of
30
Mr - - -
31Defence counsel's out of order. 1.:CS 10/12/08 2Cressy
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Mr Devries?
313
DISCUSSION
1MR DEVRIES:
Your Honour, there is a very large bundle of
2
documents which were tendered which are original
3
documents.
4HIS HONOUR: 5
And if you want an exhibit, ask for it.
Mr Richards has got them very well organised.
6MR DEVRIES: 7
Yes, unfortunately, there's a gap in my list of
exhibits, Your Honour.
8HIS HONOUR:
What were they?
9MR DEVRIES:
These were documents that were attached to an
10
affidavit of documents prepared by my current
11
instructors, Berry Family Law.
12
yes, that looks like them, Your Honour.
13HIS HONOUR:
Yes.
It's in - they were –
There's a letter of Berry Family Law to the
14
defendant dated 9 April 2008 with attached documents.
15
that what you're looking for?
16MR DEVRIES:
That's Exhibit 21.
I think it is, Your Honour.
17
one moment, Your Honour.
18
Honour, which is identical to this.
19
documents.
20WITNESS:
Is
Just bear with me for
There is another bundle, Your They were original
Exhibit 20 may assist you.
21HIS HONOUR:
Is it 20, the letter of Harwood Andrews to the
22
defendant of 11 March with copy affidavit of the
23
plaintiff sworn that date and a bundle of documents?
24
That's Exhibit 20.
25MR DEVRIES:
Thank you.
I'm indebted to Your Honour.
(To
26
witness) Now, Mr Johnson, you've had these since March
27
this year.
Is that correct?---Yes.
28They're identical to the documents that are in Exhibit 21, 29
except that these are originals and Exhibits 21 are
30
photocopies?---As I said in evidence-in-chief I didn't
31
page – to check a hundred per cent correlation but, yes,
1.:CS 10/12/08 2Cressy
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314
DISCUSSION
1
I believe by a quick turning of the pages there is – that
2
they are.
3You tendered Exhibit 21 on the basis that it was identical to 4
this exhibit?---Yes.
5So I'm putting to you, Mr Johnson, that since at least March 6
this year if you chose to you had access to all
7
documents, and the two mobile phones that my client says
8
she had in her possession being – well, that she said she
9
had in your possession.
10 11No.
no.
Do you agree with that?---No,
Mr Devries, you're confusing the two sets of - - -
Leaving aside the documents that you say that she hasn't
12
returned, the ones that she's fessed up to having have
13
all been returned to you haven't they?
14
made available to you.
15
or been available for you to inspect either at the police
16
station or later at the Federal Magistrates' Court?
17
---No, that's clearly not correct.
Have all been
Either returned to you in March
18In what way is it not correct, Mr Johnson? 19HIS HONOUR:
I think there's a confusion in the question, is
20
there not, because as I understand it is that Mr Johnson
21
said in his evidence-in-chief that he has inspected the
22
documents which the police recovered from your clients,
23
and they only recovered 70 per cent of the documents that
24
were missing?
25MR DEVRIES:
What I'm putting to - - -
26HIS HONOUR:
Your clients also made available other documents
27
on 11 March?
28WITNESS:
Yes, 2008.
29MR DEVRIES:
What I'm putting, Your Honour, is that he's had –
30
the 70 per cent that Mr Johnson says that she's fessed up
31
to having - - -
1.:CS 10/12/08 2Cressy
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315
DISCUSSION
1HIS HONOUR:
Which the police took possession of.
2MR DEVRIES:
Which the police took possession of.
3
with those he's had ready access to.
4
putting to him.
Together
That's what I'm
5HIS HONOUR:
That's self evident.
6MR DEVRIES:
You've heard my client's denial that she's
7
retained any other documents of yours, apart from
8
documents relating to your registration as a prostitute.
9
You've heard that evidence haven't you?---There are
10
multiple prongs.
11
latitude, Your Honour?
12HIS HONOUR:
May I respond with a little bit of
Not latitude but you may respond?---OK.
The
13
documents that are held and were subpoenaed off the
14
police were 70 per cent of the documents taken from my
15
home, which at that point was Dorrington Street, Point
16
Cook where I lived alone in November 2007.
17
had as much access to those documents as I have had, ever
18
since they - - -
19HIS HONOUR:
Ms Cressy has
Her access is not the point?---Thank you, Your
20
Honour.
Thank you, Your Honour.
21
evidence that my three or four boxes of documents stayed
22
in my storage shed at Altona, which I had no access to up
23
until March 2008 - - -
24MR DEVRIES:
Ms Cressy admitted in
This is a submission, Your Honour.
25
answer.
This is not evidence.
26
Your Honour - - -
This is not an
This is a submission,
27HIS HONOUR:
You're referring to Ms Cressy's - - -?---In March
28
2008.
It's separate documents.
29
given that folder but the other 39 folders - - -
In March 2008 I was
30That's Exhibit 1?---The other 39 folders for the other 31
properties – Ms Cressy's claim is that she did give them
1.:CS 10/12/08 2Cressy
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316
DISCUSSION
1
to me.
2
and that I had to go to my mortgage broker to reproduce
3
what I could.
4
not dealt with for years, but that was prohibitively
5
expensive.
6
documents, Your Honour.
7
for - - -
8MR DEVRIES:
My claim to use true words is that she did not,
9
I could've gone to the builders who I've
That's the issue.
They're different missing
All of the original construction
Honour.
I'll break up my question into categories, Your (To witness) You've had the documents that
10
compromise Exhibit 20 since 11 March 2008.
Is that
11
correct?---Sorry, since what date, Mr Devries?
12Please try and concentrate on the questions I'm asking you, 13
instead of distracting yourself by looking at bits of
14
paper.
15
date of the letter.
16
possession that comprise Exhibit 20?---As has the
17
predecessors to your instructor, Mr Devries, yes.
Since March this year.
I think 11 March was the
You've had those documents in your
18You've had access to all of the documents that my client 19
delivered up to the police, whilst they've been in the
20
police custody or in the Federal Magistrates' Court.
21
that correct?---There's third parties involved.
22
believe so but the Exhibit 20 materials don't fall into
23
that category of documents anyway.
24
hand those to the police, Mr Hanlon handed them to me
25
minutes before we appeared before Justice Whelan.
Is
I
Ms Cressy did not
26I'm talking about - - 27HIS HONOUR:
You've had access to inspect documents at the
28
Federal Magistrates' Court which were lodged there by the
29
police, pursuant to the subpoena, and issued to them,
30
right?---Yes, the same access as - - -
31And you also have told us today that you had also had access to 1.:CS 10/12/08 2Cressy
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317
DISCUSSION
1
those documents while they were still in the possession
2
of the Werribee Police?---I was allowed to visit the
3
documents to see how much had been recovered.
4Right, thank you?---For about less than five minutes, Your 5
Honour.
6Mr Devries? 7MR DEVRIES:
And you could have gone at any time to the Federal
8
Magistrates Court, once they had been released, for
9
inspection, and you could have photocopied and/or
10
inspected them at your leisure, that's correct too?---As
11
could your instructor, Mr Devries.
12HIS HONOUR:
There's a (indistinct) answer contained in that.
13MR DEVRIES:
Yes?---Thank you, Your Honour.
14And pursuant to orders of this honourable court, you went along 15
to my client's premises and picked up a large number of
16
boxes of documents and bags of documents and folders of
17
documents, including Exhibit 1, is that correct?---I went
18
to 166 Queens Street, Altona, for that purpose, yes.
19You drove away with a carload full of documents, including 20
documents in the front passenger seat of your vehicle, is
21
that correct?---I filled up with my car with what was
22
offered to me, but not everything was offered to me,
23
Mr Devries.
24Everything that was there at the front gate you took with you, 25
is that correct?---Of course I did, but not everything
26
was there where it was supposed to be.
27
those folders, roughly, were missing, they were not
28
provided.
Thirty-nine of
29Did I ask you anything about those 39 folders, Mr Johnson? 30
didn't, did I?---You were asking me about a class of
31
documents.
1.:CS 10/12/08 2Cressy
FTR:1
318
I
DISCUSSION
1No, I'm not asking you about a class of documents.
I asked
2
you, Mr Johnson, whether all of the documents that my
3
client stacked near the front gate of her premises were
4
taken away by you?
5HIS HONOUR:
He's answered yes.
6MR DEVRIES:
He has, and I put to you - well, you've heard my
7
client's evidence, haven't you, that there were no other
8
documents retained by her, save for those that comprised
9
Exhibit 20 and save for those that ended up with the
10
police and the Federal Magistrates' Court, haven't you?
11HIS HONOUR: 12
Your answer to that - - -?---The Police
Magistrates' Court - - -
13- - - you say that she didn't return 39 folders?---Yes, Your 14
Honour.
15Right, well, now we've - - -?---Yes. 16MR DEVRIES: 17
And you understand that it's - that she denies
emphatically that she retained any of those 39 folders?
18HIS HONOUR:
Well, his understanding's irrelevant.
19MR DEVRIES:
Yes?---We've - I've had this issue several
20
times - - -
21HIS HONOUR:
Just a moment?---- - - in this court, Your Honour.
22I've objected to the question. 23MR DEVRIES:
I put to you, Mr Johnson, that she never retained
24
any of those 39 folders, and that her evidence on that is
25
correct.
26HIS HONOUR: 27
What do you say to that?
Do you disagree with it
or agree with it?---I totally disagree.
28That's enough?---Thank you. 29MR DEVRIES:
In the course of your evidence, you've gone out of
30
your way to tell His Honour how generous you've been to
31
my client, her children, including your child Illyana,
1.:CS 10/12/08 2Cressy
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319
DISCUSSION
1
her mother, and her mother's children, that's correct,
2
isn't it?---Yes, Mr Devries.
3And I put to you that you would only do that for as long as you 4
did, and in the way that you say that you did, if you
5
were part of a family, that's correct, isn't it?---That
6
is not correct, but many people are putting exactly that
7
to me, Mr Devries.
8
girl, and for her siblings - - -
My generosity, my love for my little
9Sorry, you've answered my question, Mr Johnson?---Have I 10
answered it, is this - - -
11HIS HONOUR:
Well, you can shortly add to that.
You say that
12
it's not because they were (indistinct) because they
13
loved your daughter, Illyana, and you also loved her
14
siblings, is that right?---And you couldn't nourish one
15
without nourishing the others, yes, Your Honour.
16Right, thank you. 17MR DEVRIES:
You say that you loved Illyana and you did all
18
these things for your love of Illyana, but over and over
19
again, in the Federal Magistrates' Court proceedings, and
20
occasionally in these proceedings, you disputed in a very
21
nasty way paternity of Illyana, isn't that correct?---No,
22
it's not correct, and there's multiple levels to that
23
question, Mr Devries.
24You, at one stage, said that there was a less than five per 25
cent chance that she was your child, do you recall
26
deposing to that?---Scientifically, that's correct.
27And you'd oppose to the fact that you thought that other - that 28
clients of my client were more likely to be Illyana's
29
father than yourself?
30
didn't you?---I deposed to the effect that if a woman has
31
sex with 20 men in one week and falls pregnant, conceives
1.:CS 10/12/08 2Cressy
FTR:1
You depose that from time to time,
320
DISCUSSION
1
during the week, the odds must be, in the absence of any
2
other information, one in 20 of any one of those
3
particular men being the biological father.
4That was your stance right through the Federal Magistrates' 5
Court proceedings until the second last time you appeared
6
before Federal Magistrate O'Dwyer, wasn't it?
7
---Mr Devries, I've never been caught up on the biology
8
of it, but I would like to know one day whether Illyana's
9
resemblance to me is by nature or by nurture.
10
It's never
been a top priority for me.
11Well, you conceded to Federal Magistrate O'Dwyer that she was 12
your child, you conceded to His Honour that she's your
13
child, you flashed and emphasised over and over again a
14
photograph as if she was your child - - -
15HIS HONOUR:
Is this relevant, whether she - this issue of
16
paternity or not?---It's never been relevant to me, Your
17
Honour, with the greatest of respect.
18Mr Johnson, I don't want your comments, I'm raising a matter 19
with counsel.
20MR DEVRIES:
I am only putting it to him, in the context that
21
he says his evidence is that his generosity to my client,
22
my client's (indistinct) was born out of his love of
23
Illyana.
24HIS HONOUR: 25
And you say that's contradicted by the fact that
he's put Illyana's paternity in issue?
26MR DEVRIES:
And still does, Your Honour, yes.
27HIS HONOUR:
Well, I think you've established the fact that
28
he's put paternity in issue.
29MR DEVRIES:
Now, your evidence concerning your property
30
acquisitions was that they were all highly geared, the
31
purchase of each property was highly geared, is that
1.:CS 10/12/08 2Cressy
FTR:1
321
DISCUSSION
1
correct?---Yes.
2Between about 90 per cent and I think you said 116 per cent, is 3
that correct?---No, and the question is too broad,
4
Mr Devries, for a sensible answer.
5So you're saying you can't answer the question, is that right? 6
---Not in using my favourite word "yes" or my least
7
favourite word "no", I can't answer that question.
8
happy to explain in a little bit of detail and go over my
9
evidence-in-chief if that would assist Mr Devries.
I am
10No, no, don't keep making invitations to me to ask you 11
questions, Mr Johnson, because it's a waste of your
12
breath.
13
is that correct?
14
highly geared?---It is a trade off between minimising my
15
cash investments.
They were all very heavily geared weren't they, Each property when you purchased it was
16Can you answer simply "yes" or - - 17HIS HONOUR:
He didn't ask you the reason.
The fact is, and I
18
think you have already said this, that when you purchased
19
them they were heavily geared and indeed a number of the
20
properties you say you never put any cash into the
21
purchase at all?---The AMP loans - - -
22Is that right?---In a few words, Your Honour, the AMP loans 23
were done at 80 per cent bank finance because that was an
24
easy process for the bank, 20 per cent equities, I
25
described that in evidence-in-chief.
26
Caulfield because of the almost year delay in the - - -
Gibson Street,
27100 per cent finance?---It worked out because the value shot 28
through the roof.
29You've told us that already?---For the others the borrowing was 30
the max that I could do which the Altona was 90 per cent,
31
yes, and look, the original financing of Inverloch was
1.:CS 10/12/08 2Cressy
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322
DISCUSSION
1
only 80 per cent debt finance.
2
original finance ratio was for Point Cook but it would
3
have been pretty skinny on the equity.
4
would let me do.
5MR DEVRIES:
I'm not sure what the
Whatever the bank
Mr Ioannou has given evidence about that
6
but - - -?---Mr Ioannou wasn't involved at that meeting
7
when I purchased.
8But effectively whether it's 80 per cent, 90 per cent or the 9
116 per cent at one stage you gave evidence of, they were
10
all heavily geared, that's correct isn't it?
11
difficult to answer that question?---I've given the
12
details, so I'll give a "yes" answer to that.
13Thank you.
Is it
You also gave evidence that as you got equity in
14
the properties you accessed that equity to buy more
15
properties or to finance the purchase of more properties,
16
do you recall giving that evidence?---And to retire debt,
17
some more expensive debt Mr Devries, yes.
18So you kept each of those properties at the maximum gearing 19
that you could manage?---Yes, for a lot of benefits too.
20You got taxation benefits out of negatively gearing those 21
properties?---Those that were rented out, yes.
Those
22
that were made available for people to live in for free,
23
no.
24Everything went all right about the middle of last year, is 25
that correct?---There were two melting points.
26
financial situation - - -
First my
27Just tell us when the melting points occurred?---Shortly after 28
Christmas 2007, crystallised fully around about just
29
before Easter '07.
30
Primelife Corporation.
31
relations between Ms Cressy and I which were - I can
1.:CS 10/12/08 2Cressy
FTR:1
That was on my financial flows, The other melting point was the
323
DISCUSSION
1
point, the Thursday after Easter 2007.
2So everything suddenly - sorry, the house of cards that you had 3
erected started to come tumbling down when my client and
4
you had what she says is the final separation in you say
5
a week after Easter 2007, she says a little bit later
6
on?---I deny the house of cards.
7
as to timing in answer to the previous question.
I stand by what I said
8I am suggesting to you that you had erected a very delicate 9
house of cards with all of these property transactions,
10
and you don't agree with that?---My response is that I
11
was income streaming, a person of high net income but low
12
net worth as I had been for most of my life.
13It all came asunder when my client separated from you between a 14
week after Easter and May or June 2007, that's correct
15
isn't it?---There's an assumption in there, Mr Devries,
16
the timing is as I've just answered to the previous
17
question and coming undone actually occurred a bit later.
18I put to you the reason that it all came apart was that the 19
card that was constituted by her input into the
20
relationship, which you have described it being between
21
$2000 and $3000 per week was pulled out of your financial
22
matrix?---Sorry, I don't follow that question in the
23
least bit.
24HIS HONOUR:
No, I don't understand that question either.
25MR DEVRIES:
I will put it again Your Honour.
26HIS HONOUR:
Make it specific yes.
27MR DEVRIES:
The card comprising her income.
28HIS HONOUR:
Right?---Perhaps it's the card with the joker on
29
What card is that?
it, Your Honour.
30MR DEVRIES:
Perhaps, Your Honour, I won't use an analogy.
31HIS HONOUR:
We won't use metaphors.
1.:CS 10/12/08 2Cressy
FTR:1
324
Let's put it directly. DISCUSSION
1MR DEVRIES:
Yes.
I am suggesting to you or putting to you,
2
Mr Johnson, that your financial situation as a whole was
3
at all times a very tight stressed situation, and that's
4
been your evidence to date?
5
fast and furious like the flow of the Amazon River but I
6
was in control of it, Mr Devries.
Is that correct?---It was
7Your evidence is redolent of statements such as, "Money was 8
tight.
Finances were tight.
I had to juggle here.
I
9
had to" – well, you didn't use the word, "Juggle", but,
10
"Things were tight", on many, many occasions you gave
11
that evidence.
12
Mr Johnson?---I recall explaining that my cash flow was
13
lumpy and there would be big items coming in.
14
example in January 2007 I banked over $120,000 in
15
Primelife that month.
Do you recall giving that evidence,
For
16Mr Johnson, perhaps you could just confine yourself to this 17
question?
You did in your evidence on days previous to
18
today say on many occasions that, "Money was very, very
19
tight", didn't you?---I said that there were hills and
20
there were valleys and there were Kosciuoskos.
21
2007 was a Kosciusko.
22
into my account because of the incredible hours I worked
23
in the November and December 2006 for Primelife
24
Corporation, and that's fully - - -
January
I banked over – had over $120,000
25Mr Johnson - - -?---- - -and exhibited, Mr Devries. 26Do you wish me to go through the transcript after lunch and 27
refer you to each of the occasions that you said that,
28
"Money was tight.
29
various things because you didn't have the cash flow.
30
you want me to do that?---I think you might put His
31
Honour and I to sleep, Mr Devries, if you attempt it.
1.:CS 10/12/08 2Cressy
FTR:1
Cash was tight"?
325
You couldn't do Do
I
DISCUSSION
1
suggest you - - -
2HIS HONOUR:
Don't trouble with that but can I ask you this
3
though?
During the time and let's take it from 2003
4
until April 2007, were there periods when cash was tight
5
for you?---Yes.
6
and it would rain again, Your Honour.
Brief periods but then they would ease
7I follow?---Thank you. 8But did you have a number of those periods?---I've mentioned a 9
few of those periods this morning - - -
10You have.
So that we can work on the basis that during the
11
period I've nominated there were a number of periods when
12
cash was tight for you?---Yes, Your Honour.
13Mr Devries. 14MR DEVRIES: 15
Your Honour, can I leave it that?
I know that - - -
16HIS HONOUR: 17
It's getting –
We'll adjourn for lunch on that note.
I stand in
mortal fear of what's about to be handed to me.
18MR DEVRIES:
Just before we do that, Your Honour, and if I
19
could put the evil off for – if we could just borrow
20
Exhibit 45 over lunch - - -
21HIS HONOUR:
Yes, the - - -
22MR DEVRIES:
Please - - -
23HIS HONOUR:
Hang on just a moment.
24WITNESS: 25
I'm comfortable with that, Your Honour.
It's my tax
return - - -
26HIS HONOUR:
Would you believe 172 pages?
27MR DEVRIES:
It just exceeds the statement of claim against me
28
by 16 pages, Your Honour.
29HIS HONOUR:
No wonder it was a long gestation period.
30MR DEVRIES:
There were a number of issues in that case over
31
and above the domestic relationship, Your Honour.
1.:CS 10/12/08 2Cressy
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DISCUSSION
1HIS HONOUR: 2
It must be an 11 pounder.
Yes, I'm talking about
the judgment in - - -
3MR DEVRIES:
I understand that, Your Honour.
4HIS HONOUR:
I know we're all looking forward to reading it
5
with relish.
6WITNESS:
Thank you.
The - - -
I have a spare copy of the exhibit.
7HIS HONOUR:
Yes.
8MR DEVRIES:
I think we've got a copy of that.
9HIS HONOUR:
What do you want?
10MR DEVRIES: 11
No, sorry, we've got access to the one that we
heard over lunch.
12HIS HONOUR: 13
Mr Johnson? I would've thought hopefully 15 to 20 minutes,
Your Honour.
16HIS HONOUR: 17
We've got a copy.
How long will you be in cross-examination of
14MR DEVRIES: 15
You want access to - - -
Excellent.
Ms Sofroniou, how long do you think
you'll be?
18MS SOFRONIOU: 19HIS HONOUR:
Could be no time at all, Your Honour. If you're sure.
(To witness) Now, I do not expect
20
a long turgent re-examination?---I'm sorry, Your Honour.
21
I must apologise in advance.
22Don't apologise in advance.
That is an expectation of you, all
23
right, that you will be relevant in your re-examination.
24
That you'll address only issues that are of importance.
25
That you will not speechify, all right?---Your Honour,
26
the - - -
27That is a requirement?---Thank you, Your Honour. 28
best.
29
expectation as I've been saying - - -
The time that we've taken is matched by
30HIS HONOUR: 31
I shall do my
That is not the point.
Now, I think in order to
finish this case this week we will sit tomorrow and
1.:CS 10/12/08 2Cressy
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327
DISCUSSION
1
Friday at 9.30, if counsel can cope with that?---Most
2
certainly, Your Honour.
3MS SOFRONIOU:
I've been here earlier - - -
Yes, Your Honour.
4HIS HONOUR:
I expect this case to finish no later than Friday.
5MR DEVRIES:
It could take the whole Friday just to tell you
6
about - - -
7HIS HONOUR: 8WITNESS: 9
No, it won't.
Now - - -
It depends on my subpoena which I'll try to get done
during the lunch break for Mr Wittekind to - - -
10HIS HONOUR:
You get Mr Wittekind subpoenaed and I will abridge
11
all times.
If necessary he can be required to attend.
12
He's out at where?
Wheelers Hill?---Yes.
13He will attend at this court within two hours of subpoena. 14
Now, 9.30.
15WITNESS:
Sorry, ten past two.
Excuse me, Your Honour, in terms of the abridgment,
16
because this is all new to me, do I have to – or do your
17
staff have to let the registry people know that all - - -
18HIS HONOUR:
(Inaudible response.)
Look, at that over lunch
19
and I'll - - -?---I will do my best because Mr Thompson
20
will be here at 2.15 so I - - -
21HIS HONOUR:
Yes.
22<(THE WITNESS WITHDREW) 23LUNCHEON ADJOURNMENT
1.:CS 10/12/08 2Cressy
FTR:1
328
DISCUSSION
The matter's still proceeding, Your Honour.
2HIS HONOUR:
Thanks, Mr Devries.
3
Thank you, sir.
May I just report quickly, Your
5
Honour?
6
court at 2.15 today to explain his efforts, unsuccessful
7
to date, to have Mr Wittekind come to give evidence in
8
respect of that affidavit of service for Peter Cockram.
9HIS HONOUR:
I've organised for Mr Thompson to return to
Is Mr Wittekind avoiding Mr Thompson?
10MR JOHNSON:
He is.
11HIS HONOUR:
Yes or no?
12MR JOHNSON:
Yes, yes, serious misconduct, Your Honour.
13HIS HONOUR:
If you can't get him to court he can be subpoenaed
14
and I will abridge times for service of the subpoena, if
15
it assists you.
16MR JOHNSON: 17
You can have a subpoena served - - -
Thank you, Your Honour.
discussed that this morning.
18HIS HONOUR:
Mr Thompson and I
I could - - -
Ordinarily I think you have to serve it five days
19
before he attends.
20
it's necessary.
I'll abridge that time 12 hours if
21MR JOHNSON: Thank you, Your Honour. 22MR DEVRIES: 23
Your Honour, can I ask what's that going to do
with respect to the timetable in this matter?
24HIS HONOUR:
It's going to cause difficulties.
25MR DEVRIES:
I must say at this stage, sir, I've got enormous
26
problems; almost insurmountable problems next week.
27HIS HONOUR:
Mr Devries, this case was set down on a two days
28
estimate.
29
That estimate has proven to be entirely unrealistic.
30
have great problems to but I'm going to sit until this
31
case finishes.
1.:CS 10/12/08 2Cressy
I assume that estimate came from your side.
FTR:1
I
Now, I'm sorry about that but this is 236
DISCUSSION
1
going to have to happen.
2
lose time like we have every other time.
3MR DEVRIES: 4
I'll be out of the jurisdiction for part of next
week, Your Honour.
5HIS HONOUR: 6
If we debate that now we'll
It's unavoidable.
I'll be sitting.
I'm sorry, Mr Devries, but this
case will sit until we finish it.
7MR DEVRIES:
If Your Honour pleases.
8HIS HONOUR:
But hopefully we can finish it this week whatever
9
we do and if necessary, well, I'll extend out further.
10
see no reason why we can't if we stop debating these
11
minor issues and focus on the major ones.
12MR DEVRIES:
I
If Your Honour pleases.
13
2007/2008 this morning.
16
---Yes, Your Honour.
I call upon those documents?
Before I do I'm concerned - - -
17Have you got those documents, Mr Johnson?---I have those 18
documents with me.
19Would you please produce them, Mr Johnson?---I just want to 20
clarify the rules as to how the documents might be used
21
once they're produced?
22HIS HONOUR: 23
They may only be used for the purposes of these
proceedings?---I have - - -
24MR DEVRIES: 25
We've been through that in respect of other
documents, Your Honour.
26HIS HONOUR: 27
Just a moment?---These are very sensitive
documents of mine including tax file numbers.
28What is your concern?---My concern is that the documents not be 29
copied and given to any persons not involved in the
30
proceedings.
31
be given with possession to the plaintiff.
1.:CS 10/12/08 2Cressy
I have a particular concern that copies not
FTR:1
237
I appreciate DISCUSSION
1
my learned friend and his instructor may need to discuss
2
some of the contents with their client to get
3
instructions, and by all means – but I ask that no copies
4
of these documents be left – no capacity for copies of
5
these – this document be left with the plaintiff to take
6
a copy or obtain possession of a copy outside the court.
7I think that's a fair request, Mr Devries. 8MR DEVRIES: 9 10
I only wanted it for the purposes of examination –
sorry, cross-examination of Mr Johnson.
I may need a
photocopy until I've finished my final address.
11HIS HONOUR:
For your purposes?
12MR DEVRIES:
For my purposes and also my instructor's purposes.
13
I'm happy to give an undertaking to Your Honour that I
14
will not show any part of the document to anyone other
15
than my instructors and perhaps my learned friend,
16
although I can't see myself showing it to my learned
17
friend.
18
I've finished my – sorry, after Your Honour's handed down
19
your decision in this matter that whatever copies my
20
instructor and I have taken will be either returned to
21
Mr Johnson or destroyed.
22HIS HONOUR:
I'm also happy to give an undertaking that when
23MS SOFRONIOU:
Thanks, Mr Devries.
24
If it's any comfort, Your Honour, I don't need
to see them.
25HIS HONOUR:
Thank you, Ms Sofroniou.
(To witness) Now, you've
26
been asked to produce the document?---Your Honour, yes.
27
May I also say that Your Honour gave Mr Devries
28
considerable latitude in cross-examination last night.
29
Going into areas which I myself had doubts as to
30
relevance.
31
evidence-in-chief specifically on this tax return, so I'm
1.:CS 10/12/08 2Cressy
I did not get an opportunity to give
FTR:1
238
DISCUSSION
1
just asking for and – and I fully expect that Your Honour
2
will allow me a similar latitude in re-examination - - -
3HIS HONOUR:
I won't allow you latitude but you'll be entitled
4
to address any matters that are raised in
5
cross-examination.
6
re-examination you'll be able to do so and Mr Devries?
7
---Yes, thank you, Your Honour.
8
Ms Sofroniou having a copy of the tax return either.
If you need to clarify them in
I have no concern with
9At the moment she hasn't asked to do so. 10MS SOFRONIOU: 11WITNESS:
I don't need them.
Thank you.
12HIS HONOUR:
May I tender?
At the moment all that is required is if you could
13
provide a copy to Mr Devries for him to look at?---I said
14
I'd tender it as an exhibit in evidence, Your Honour.
15
That was what I said during evidence-in-chief.
16I think that's right actually.
He did.
Yes, before he
17
completed his evidence-in-chief my recollection – or it
18
might've been while he was under cross-examination he
19
offered to tender it?---It was before the lunch break,
20
Your Honour, and I agreed to locate a copy and produce it
21
after lunch.
22MR DEVRIES:
I'm just calling upon him to do that, Your Honour.
23
I agree with that, Your Honour, and that's my
24
recollection as well.
25
copies of that exhibit?---I do, Mr Devries, including a
26
copy for Ms Sofroniou if she would like to - - -
(To witness) Do you have multiple
27HIS HONOUR: Thanks, Mr Richards. 28 29#EXHIBIT 45 Individual tax return of the defendant, 30 Harold James Johnson, for the financial 31 year ending 30/06/08. 32WITNESS: 33
Forgive me, Your Honour, I don't recognise the
exhibit numbering.
1.:CS 10/12/08 2Cressy
FTR:1
I thought it would be Exhibit K. 239
DISCUSSION
1
Does it come back to - - -
2HIS HONOUR: 3
Well, you're really tendering - - -?---Yes, Your
Honour.
Again, I'm not - - -
4I'm not going to argue about it.
It doesn't really matter
5
whose exhibit it is.
I've made it Exhibit 45 and it will
6
remain thus?---I've just lost a page of my notes.
7
couldn't identify 45 as being the next number in that
8
sequence but I'm sure it's correct.
I
9It is?---Thank you, Your Honour. 10MR DEVRIES:
I'll need to spend a few minutes looking at it,
11
but I won't do that now, Your Honour.
12
appropriate stage in the proceedings.
Perhaps at an
13HIS HONOUR:
Yes.
14MR DEVRIES:
Now, Mr Johnson, you were going to produce your
15
motorcycle drivers licence, have you got that with you?
16
---Your Honour, before I do this and I am not suggesting
17
there is any impropriety in this - - -
18Have you got it with you, Mr Johnson?---I just - before I - - 19HIS HONOUR: 20
The first question is, do you have it?---Your
Honour, yes I do.
21Yes. 22MR DEVRIES:
I ask you to produce it.
23HIS HONOUR:
You have been asked to produce it, do you have an
24
objection?---I'm not sure, Your Honour, and I am not
25
suggesting any impropriety here, I just want to
26
understand the rules by which a witness can be asked to
27
turn out his pockets and divulge the contents of those
28
pockets.
29
understand that.
I am not suggesting any impropriety, I want to
30There's a ruling, it is a relevant issue, then he can be 31
requested to bring it, you have brought it to court, do
1.:CS 10/12/08 2Cressy
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240
DISCUSSION
1
you produce it to Mr Devries?---Your Honour, do those
2
rules apply to witnesses generally or defendants under
3
cross-examination or to me as a special case as an
4
officer of the court of 18 years plus good standing.
5Mr Johnson, you have complied with the request made of you by 6
Mr Devries to produce your licences, you have brought
7
them to court, you say you have them in your possession,
8
it applies to any witness, would you produce that now to
9
Mr Devries?---Thank you, Your Honour.
10I regard your conduct this morning again as being a repetition 11
of yesterday's and you do yourself no credit in my eyes?
12
---Your Honour, I just wish to understand - - -
13Would you produce it please?---I wish to understand if I was 14
under a lawful obligation and if so what was the basis.
15Would you just produce it please?---As defence counsel I 16
question the relevance.
17
my pocket.
I have several documents out of
18You have been asked to produce, as I understand it, 19
your - - - ?---I would like to raise - - -
20- - - motorcycle licence and your motor vehicle licence. 21MR DEVRIES:
Yes, I had specifically asked for the motorcycle,
22
but I was then going to move on to the driving licence
23
but if he's got both if he can produce that as well?---I
24
don't have the driver's licence but I will hunt this
25
evening.
26Did you hunt for it yesterday evening?---I did, I actually 27
looked this morning but it wasn't immediately to hand.
28HIS HONOUR:
Do you not carry it on you?---I carry the learners
29
permit with me, Your Honour, and the number is the same.
30
The photo is closer to how I look today than when I did
31
back in - - -
1.:CS 10/12/08 2Cressy
FTR:1
241
DISCUSSION
1How do you get to Geelong?---There are various means including 2
a train service.
3Do you drive?---On occasions, sir. 4Do you carry your licence with you when you do that?---Not 5
always, Your Honour.
6Mr Richards, could you hand that licence to Mr Devries?---May I 7
hand all four of these please.
8
exhibits, Your Honour.
9MR DEVRIES: 10
I would ask they go in as
I don't know why I have been handed three
extraneous documents Your Honour.
11HIS HONOUR:
What document answers the call?
12MR DEVRIES:
The learners permit.
13HIS HONOUR:
The other three documents can be handed back, the
14
extraneous ones are extraneous to the call.
15MR DEVRIES: 16
I am quite happy to hand back the learners permit
Your Honour.
17HIS HONOUR:
Yes.
Now, you wish the learners permit to be
18
tendered do you Mr Johnson?---I wish all four of these to
19
be tendered, Your Honour.
20What are the other documents?---The one is a Medicare card 21
which is ancient which lists all of the residences - - -
22No, you haven't been asked to produce that but so far as the 23
document answers the call and it's been inspected by
24
counsel, that can be tendered.
25
learners permit as Exhibit 46?---Thank you, Your Honour.
26
May I just say that the document Mr Devries - - -
27Just a moment. 28 29#EXHIBIT K 30
I will receive your
Learners permit no.032685419 of the defendant.
31Thank you, Mr Devries. 32MR DEVRIES: 1.:CS 10/12/08 2Cressy
Mr Johnson, if I can put you fairly and squarely FTR:1
242
DISCUSSION
1
on notice that I will be submitting to His Honour when I
2
get to my address that your failure to produce your
3
drivers licence should be inferred by His Honour as
4
meaning that the document does not assist you with
5
respect to your evidence concerning your addresses.
6
will be submitting to His Honour that you are trying to
7
hide that document from the court; do you understand?
8
---My answer is that that is totally incorrect.
9
to bring it with me to court tomorrow morning Your
10
I
I hope
Honour.
11I am putting you on notice, I am not asking you to comment. 12HIS HONOUR:
Mr Devries is simply putting you on notice of a
13
submission he will make in final address under the rule
14
of Jones v. Dunkel?---I have said twice this morning I
15
hope to bring that drivers licence to court tomorrow
16
morning Your Honour.
17Right?---I will hunt several places tonight to find it Your 18
Honour.
19MR DEVRIES:
While we are on issues of Jones v. Dunkel,
20
Mr Johnson, I understand that you don't intend to call
21
any of you ex-employees to court, is that correct?---My
22
understanding is that the plaintiff has to prove their
23
case - - -
24Is that correct?---I don't need to disprove her case. 25Is that correct or incorrect?---That is correct, Mr Devries. 26So you want be calling the office lady that you had who could 27
have given evidence to His Honour about you using the
28
Bourke Street premises as your residence?---I repeat I
29
don't have to disprove the plaintiff's case, the
30
plaintiff has to prove her case.
31HIS HONOUR: 1.:CS 10/12/08 2Cressy
Will you be calling that lady?---No, Your Honour. FTR:1
243
DISCUSSION
1What is her name?---Kathleen Doogan. 2Is she in Melbourne?---I have not had contact with her since 3
she ceased my employment in June or July 2007.
4Thank you. 5MR DEVRIES:
But as part of your employment records you would
6
have records of her address, her phone number and other
7
means of contacting her if you so wished, wouldn’t you?
8
---Yes.
9Be aware, Mr Johnson, that in the spirit of Jones v. Dunkel, 10
I'll be asking His Honour to draw the appropriate
11
inferences from you not calling her?---I shall read that
12
case this evening, Mr Devries.
13
if you have one handy?
14HIS HONOUR:
May I have the citation,
It's in the Commonwealth Law Reports.
The
15
principle which it adopts is this.
If a party fails to
16
call a witness or adduce a witness who that party might
17
be expected to do to support that party's case, then the
18
court may infer that that witness, or that evidence,
19
would not have been of assistance to that party.
20
court is not entitled to speculate what that missing
21
witness might have said, it can simply draw an inference
22
that that witness would not have been of
23
assistance?---I'm indebted for the explanation, Your
24
Honour.
The
25MR DEVRIES:
Thank you. You said to His Honour during your evidence that,
26
your ex-girlfriend, Stella, is still a good friend of
27
yours.
Is that correct?---I spoke with - - -
28Is that the - - -?---Yes, I spoke with her yesterday. 29Is that the evidence that you - Mr Johnson, do you have a 30
difficult this morning in understanding my
31
questions?---No greater difficulty than the day before,
1.:CS 10/12/08 2Cressy
FTR:1
244
DISCUSSION
1
Mr Devries.
2Can you tell His Honour why you are choosing not to answer my 3
very specific questions which very specific answers
4
directed to those questions?---I believe I answered your
5
question, yes, I am still good friends with Stella and
6
added the detail that I spoke with her yesterday.
7
actually the evening before - - -
It was
8Did I ask you any questions about when you last spoke to 9
her?---(No audible response.)
10Did I?---If I've done it wrong, I apologise, Your Honour and 11
Mr Devries.
12Mr Johnson, I'm hoping to get this cross-examination through 13
fairly quickly and I request you, earnestly request you
14
just to answer the questions I'm asking you.
15
calling Stella to give evidence, are you?---No,
16
Mr Devries.
You're not
17And she could give evidence about where you lived during such 18
relationship as you had with her, couldn't she?---Yes.
19And she could give evidence as to the nature of your 20
relationship; when it started, when it ended, couldn't
21
she?---Yes.
22HIS HONOUR:
Is Stella in Victoria?---Yes.
23MR DEVRIES:
And she's still in Melbourne, in fact, isn't
24
she?---Yes.
25And as you've just volunteered to His Honour a little while 26
ago, you're still in contact with her, aren't you?---Yes.
27Is there any reason why you can't - couldn't call her if you so 28
chose?---If we had a trial duration of three to four
29
weeks, that would certainly be a possibility, but again,
30
I question the relevance of that witness' evidence.
31Would you like to answer the question that I asked you?---I 1.:CS 10/12/08 2Cressy
FTR:1
245
DISCUSSION
1
think there was a yes in there, Mr Devries.
2Well, I didn't hear the yes - - 3HIS HONOUR:
The witness has answered the question.
4MR DEVRIES:
If Your Honour pleases.
5
(To witness) And you
still have dealings with your wife, don't you?---No.
6So what, you're not seeing the Johnson children anymore?---I 7
have not seen any of my children since the last weekend
8
in May 2008.
9What, none of Ms Johnson's children?---My estranged wife is 10
very upset with me because I've been unable to provide
11
any financial support to her and the children since about
12
the first or second week of June this year.
13This year?---This year, Mr Devries. 14You haven't subpoenaed her to come and give evidence, have 15
you?---No, I haven't, Mr Devries.
16And she too could give evidence as to what arrangements she had 17
with you regarding the Johnson children, as you've called
18
them, and - - -?---Yes, but the Johnson family relations
19
- relations are not an issue in this proceeding by any
20
stretch of the imagination - - -
21And she could give evidence as to where she delivered those 22
children and where those children spent their time with
23
you and under what circumstances they spent time with
24
you, couldn't she - - -?---I - yes, as set out in the
25
Michael Clarebrough report.
26And she could also give evidence as to the moneys that you've 27
provided her through the course of what my client alleges
28
is the relationship?---As again is set out, she could
29
corroborate the evidence in the Michael Clarebrough
30
report.
31Yes, you've chosen not to subpoena her, is that correct?---I 1.:CS 10/12/08 2Cressy
FTR:1
246
DISCUSSION
1
question again the relevance.
2
Ms Cressy's assertion - - -
What relevance to
3Just answer - - -?--- - - - of a domestic relationship between 4
Ms Cressy and I and what relevance do Ms Cressy's
5
assertions that she contributed financially to my
6
livinglihood (sic) or to my property portfolio.
7
relevance, Your Honour.
I see no
8Are you objecting to my question - - 9HIS HONOUR:
The defendant has in fact given an answer in an
10
implied way.
11
consider her relevant to his case.
12MR DEVRIES:
He is not calling her because he does not
If Your Honour pleases?---And we are under a - a
13
false estimate of a two day trial, Your Honour.
14
conscious of that and I said at the outset, I cut my list
15
of witnesses down from about 30 - - -
16HIS HONOUR: 17
I'm very
Mr Johnson, you have shown no consciousness of the
time constraints this court is under at all.
18MR DEVRIES:
If Your Honour would just bear with me, I'm trying
19
to locate a document.
Sorry, Your Honour.
I advised
20
Your Honour that I would produce the affidavit, or one of
21
the affidavit wherein Mr Johnson made the serious
22
allegations against Federal Magistrate O'Dwyer, including
23
the allegation of corruption and I intend to produce
24
that, one of those documents now, Your Honour.
25
witness) Mr Johnson, can you have a look at this
26
document?
(To
27HIS HONOUR:
What issue does this go to?
28MR DEVRIES:
I'm sorry?
29HIS HONOUR:
What issue does this go to?
30MR DEVRIES:
Well, Your Honour, Mr Johnson in his evidence said
31
that he had a high regard for Federal Magistrate O'Dwyer;
1.:CS 10/12/08 2Cressy
FTR:1
247
DISCUSSION
1
I put some questions to him and, as I understood it, the
2
situation was that I was going to produce the document
3
where Mr Johnson had made those allegations.
4
apart from anything else, to the credit of his evidence,
5
Your Honour.
6WITNESS:
It goes,
Your Honour, I believe this is of low relevance, but
7
I'm happy for that affidavit, plus all of the supporting
8
exhibits, to come into Your Honour's body of evidence
9
provided I'm given the same latitude in re-examination
10
and submissions, Your Honour.
11MR DEVRIES: 12
I don't intend to produce the exhibit, Your
Honour.
13HIS HONOUR:
I'm not prepared to accept the affidavit.
You can
14
ask a question in relation to it, and if you get the
15
right answer it's on an issue of credit, and that's it.
16MR DEVRIES:
If Your Honour pleases.
17HIS HONOUR:
You can put the document - - -
18MR DEVRIES:
Mr Johnson, did you file an affidavit in the
19
Federal Magistrates' Court on 20 August this year, being
20
an affidavit of two pages with a large number of
21
exhibits?---May I have a quick look at the document, that
22
application?
23HIS HONOUR: 24
You're asking the witness about a document, he's
entitled to look at it.
25MR DEVRIES: 26
I've got a spare document.
I have a spare copy
for Your Honour.
27HIS HONOUR:
I don't want to look at it.
If you wish to ask
28
Mr Johnson if he said a particular thing in the
29
affidavit, put it to him.
30
doubt he will accept that he said a particular thing and
31
we can move on.
1.:CS 10/12/08 2Cressy
FTR:1
If it's in black and white no
248
DISCUSSION
1MR DEVRIES: 2
Yes.
(To witness) Is that your signature at the
bottom of p.2?---Yes.
3And that's an affidavit that you filed in the Federal 4
Magistrates' Court on 20 August 2008?---Yes.
5And the affidavit was sworn on the same day?---Yes. 6And Subparagraph (2)(h) refers to, quote, "The improper, 7
unlawful, prejudiced, biased and corrupt conduct of
8
Mr Justice[sic] O'Dwyer in these Federal Magistrates'
9
Court proceedings", does it not?---Yes.
10HIS HONOUR: 11
You may put the affidavit down?---I'm sorry, Your
Honour?
12You may put it down.
You're finished with the affidavit?
13
---Yes, I wish to deal with this in re-examination and on
14
that basis I would ask that the affidavit, plus the
15
exhibits – it's basically - - -
16At the moment I won't proceed – it's purely on an issue of 17
credit; you've accepted you've said something and it
18
simply goes to an issue of credit.
19
collateral evidence on issues such as that, particularly
20
in a case where we ought to be focusing on the main
21
issues.
22MR DEVRIES:
If Your Honour pleases.
I do not accept
Thank you, Your Honour.
23
(To witness) Now, Mr Johnson, you said to this court at
24
the very beginning that you would not become bankrupt for
25
at least seven days, is that correct?---I made the
26
statement, which could be interpreted as an undertaking
27
from the Bar, that I would not file a bankruptcy petition
28
voluntarily before today, I think, I may have said
29
Wednesday.
30Is it your intention to file for bankruptcy, Mr Johnson? 31
---Mr Devries, I am doing everything possible to avoid
1.:CS 10/12/08 2Cressy
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249
DISCUSSION
1
taking that step, and I have avoid – done everything
2
possible to avoid that step for the past year or more.
3Is it true that you said, by way of an affidavit filed in this 4
court sworn on 11 July, that you had filed for
5
bankruptcy?---No, that's not true, Mr Devries.
6You exhibited this document, didn't you?---Once again, we're 7
exhibiting one document out of a whole section of
8
material - - -
9Did you, or did you not, exhibit that one page which you said 10
was your filing for bankruptcy in your affidavit?---No, I
11
believe I said in the words in the affidavit, I was very
12
careful on this, bit of Lewis Carroll creeping in there,
13
I was very careful on this; I said, "attached is a
14
debtors petition."
15Signed by you, you said, didn't you, in your affidavit?---Yes, 16
but I have also said in several of the Practice Court
17
trials, I did not go on and file that debtors petition.
18Why did you exhibit that document if you did not want the court 19
to believe that you had filed for voluntary bankruptcy,
20
Mr Johnson?---I gave viva voce evidence several times in
21
the Practice Court that I had not filed that document, it
22
was my intention to do so.
23
prospect of looking at a three to four week trial, two to
24
three years from now, having this hanging over me all
25
that time; it was too much.
26
put the properties to a bankruptcy trustee and/or their
27
first registered mortgagees and let them deal with it.
28
would take the pain of being an undischarged bankrupt for
29
three years, not fully knowing what that meant, and
30
having the permanent mar of being a discharged bankrupt
31
on my record thereafter.
1.:CS 10/12/08 2Cressy
FTR:1
I had had enough and the
I was thinking I will just
I
I had organised with an 250
DISCUSSION
1
insolvency practitioner to be my bankruptcy trustee.
2
prepared this document – when I called to make an
3
appointment with my bankruptcy trustee - - -
I
4You have more than answered my question, Mr Johnson. 5HIS HONOUR:
Well, no, you asked a pretty wide question.
6MR DEVRIES:
I'm sorry, Your Honour.
7HIS HONOUR:
He's explaining the circumstances in which that
8
document came into existence, if it's got any relevance
9
in this proceeding.
10WITNESS:
I think it would assist if I continue the story now,
11
rather than re-examination.
12
trustee who was aware of my financials I got the
13
impression - - -
14MR DEVRIES: 15WITNESS:
This is hearsay now, Your Honour.
- - - (indistinct) of the telephone conversation.
16HIS HONOUR: 17
When I rang the insolvency
Well, it might not be because it goes to his state
of mind.
18WITNESS:
That my financial position was so grim – see, the
19
problem was I had no funds to engage legal counsel to
20
represent, as is obvious, whereas the bankruptcy trustee,
21
having first claim on the assets, could use the assets to
22
engage legal representation.
23
looking at my own financials and from my conversation
24
with the insolvency practitioner, the manager within that
25
accounting firm, was that they were so worried that my
26
assets were so diminished, even in gross value, that they
27
being personally liable for their legal fees, they may
28
not recover sufficient - - -
29HIS HONOUR: 30
The impression I got,
So what did they do?---They basically gave me the
brush off.
31All right?---And that opened an opportunity, I thought things 1.:CS 10/12/08 2Cressy
FTR:1
251
DISCUSSION
1
through again and I thought well, look things are so
2
grim, what have I got to lose by continuing with the
3
proceedings on my own, although I did continue even up
4
until October this year seeking to get independent legal
5
representation, including meeting with the President of
6
the Law Institute and I got some advice, commercial not -
7
- -
8You have gone beyond the relevant period now in relation to 9 10
what is the question you have been asked with the exhibit of that document.
11MR DEVRIES:
There is a relevance to the question, Your Honour.
12
Mr Johnson, I put it to you that firstly you intended the
13
readers of that affidavit, including this honourable
14
court and my instructors and my client to believe that
15
you had filed for bankruptcy, is that true or untrue?
16
---That's untrue.
17I put it to you Mr Johnson that it is your intention should 18
these proceedings go against you to file for bankruptcy
19
in order to frustrate my client's outcome in this
20
proceeding should she get a positive outcome?---That is
21
not true.
22
for re-examination?
23HIS HONOUR: 24
May I explain or should I save the explanation
If you have denied the allegation it is
sufficient?---Thank you, Your Honour.
25MR DEVRIES:
You gave evidence regarding Gibson Court - I think
26
it's Gibson Court, Gibson Street, page 579 of the
27
transcript.
28
from Gibson Street, at least to buy you some breathing
29
space so you could continue your generous financial
30
support, et cetera.
31
---Yes.
1.:CS 10/12/08 2Cressy
You were seeking to have the caveat lifted
FTR:1
Do you recall giving that evidence?
252
DISCUSSION
1On page 581, Your Honour, line 30:
"My objective was to have
2
the caveat withdrawn from - " - it says "Dixon Street"
3
but it obviously means Gibson Street, "so that I could do
4
a refinancing to keep the sinking ship afloat."
5
recall giving that evidence?---Yes.
Do you
6You requested the caveat to be lifted, you requested my 7
client's previous solicitors to have their caveat
8
lifted?---Yes.
9But your request didn't say that you wanted to refinance, what 10
it said was that was to enable a sale of the property to
11
proceed, didn't it?---No.
12HIS HONOUR: 13
If you have got a written document you had better
show him the document?---It's Exhibit 15 Your Honour.
14MR DEVRIES:
And Exhibit A as well, Your Honour.
15HIS HONOUR:
Yes, Exhibit A is sufficient.
Could the witness
16
be shown Exhibit A please?---I have Exhibit A here Your
17
Honour.
18Do you have a copy of that there?---I have it right here, Your 19
Honour.
20Thank you. 21
That's your faxed letter to Mr Hanlon of
29 October?---Yes, Your Honour.
22MR DEVRIES: 23
That's the letter of 29 October 2007 I believe
Your Honour.
24HIS HONOUR:
Yes.
25MR DEVRIES:
Have you got a copy in front of you Mr Johnson?
26
---I do Mr Devries, yes, excuse me.
27Does it say about two thirds of the way down in bold letters: 28
"Gibson Street is under contract and is past due.
29
Settlement will proceed within three business days of
30
withdrawal of caveat by your client.
31
occur on or before 7 November 2007 or I will suffer
1.:CS 10/12/08 2Cressy
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253
Settlement must
DISCUSSION
1
further and substantial ongoing losses and damages."
2
those your words?
3HIS HONOUR:
Are
They are obviously on the letter?---Yes, and - - -
4The important question is were they true?---And yes they are 5
true, and this letter has to be read in conjunction with
6
the other four pages of attachments and the other four or
7
so letters that I sent to Mr Hanlon at Harwood Andrews
8
around that date.
9MR DEVRIES: 10HIS HONOUR:
The other four - - Just a moment.
At that time was there in
11
existence a contract that you had entered into to sell
12
Gibson Street?---No, and I never asserted that there was
13
a contract in the nature of a contract of sale, Your
14
Honour.
15MR DEVRIES: 16
What were the four documents that were attached to
that letter?
17HIS HONOUR:
The four pages of documents.
It's Exhibit 15?---Exhibit 15 Your Honour.
18Perhaps if Exhibit 15 could be shown to the witness?---I have a 19
copy Your Honour.
20Could I have a look at them please Mr Richards. 21MR DEVRIES:
Could I have a look at the copy, the witness has
22
got it, he says he has got another copy, if I could have
23
a look at his - - -
24HIS HONOUR: 25
Do you have a spare?---I have a spare copy Your
Honour.
26Thank you, could you show that to Mr Devries. 27MR DEVRIES:
Thank you, Your Honour.
What you have given me is
28
page 2 of a document, page 1 presumably is the front page
29
of a sale note for the sale of the Gibson Street
30
property, is that correct?---Sorry, can I have a look at
31
the page.
1.:CS 10/12/08 2Cressy
FTR:1
254
DISCUSSION
1HIS HONOUR:
Is that page 2 of the document under which you
2
have purchased - - - ?---That's the particulars page out
3
of the contract under which I purchased Gibson Street,
4
yes Your Honour.
5Yes. 6MR DEVRIES: 7
Then on the last page is a letter from you to
Aaron Eastley dated 25 June 2006?---Yes, Mr Devries.
8And talks about the settlement of the property, is that 9 10
correct?---Yes, Mr Devries and the two pages in between, may I describe them also?
11And let me put to you that there is nothing in those documents 12
which would cause Mr Hanlon reading that document to
13
believe other than that you required the withdrawal of
14
caveat so that you could proceed with the settlement of
15
the sale of Gibson Street, that's correct isn't it?---No,
16
it's not correct, Mr Devries.
17You have given evidence before this court that your intention 18
of getting the caveat lifted was to refinance the
19
purchase or to finance the purchase of another property
20
and/or to refinance your present situation.
21
nothing in this letter that says to Mr Hanlon, if you
22
comply with my request I am going to take money out of
23
Gibson Street and use it elsewhere.
24
is say to them, I need the caveat lifted so I can
25
complete a contract of sale?---Mr Devries, what this
26
letter does - it's one of I think five letters, I've got
27
it numbered as the third in the series.
There is
All that letter does
28And I'm asking you to address the letter itself, Mr Johnson, 29
and I am putting to you that quite clearly this letter is
30
misleading as to your intentions?---Your Honour, I need
31
to give a detailed explanation on this as I have done in
1.:CS 10/12/08 2Cressy
FTR:1
255
DISCUSSION
1
the Practice Court trials on two occasions.
2If you don't agree Mr Johnson - - - ?---Should I do that in re3
examination or should I do it now?
4If you don't agree Mr Johnson say you don't? 5HIS HONOUR:
You can answer the question rather shortly.
6
Firstly, you gave evidence that ultimately you settled
7
the purchase of Gibson Street by yourself in June 2006,
8
is that right?---Yes, Your Honour.
9By October 2007 that contract had been well and truly settled, 10
hadn't it?---Yes, Your Honour.
11What contract are you referring to there?
"Gibson Street is
12
under contract, it is past due.
13
within three business days."
14
---The contract I was referred to were the loan and
15
mortgage contracts.
16
plural, Your Honour.
17MR DEVRIES:
Settlement will proceed
What contract was that?
Perhaps I should have said contracts
"It is under contract and is past due."
That
18
clearly was intended to tell Mr Hanlon and any other
19
reader of that letter that it was under contract of sale,
20
Mr Johnson?---I disagree and I would love to explain, I
21
disagree totally.
22That can be handed back to Mr Johnson.
Mr Johnson, on
23
21 January 2008 you wrote letters both to Challenger
24
Mortgage Management and Royal Guardian Mortgage; is that
25
correct?---Yes.
26I believe, Your Honour, that one of those letters to be an 27
exhibit.
28HIS HONOUR:
It was around about 38 or somewhere around there.
29MR DEVRIES:
I think it might be 35, Your Honour.
30HIS HONOUR:
Yes.
31MR DEVRIES:
What you say there, Mr Johnson, in the penultimate
1.:CS 10/12/08 2Cressy
FTR:1
256
DISCUSSION
1
paragraph is:
"While I have funds available to meet
2
outstanding mortgages, I have been advised that the
3
prudent course of action is to conserve my cash and allow
4
the mortgage payments to capsize if the mortgagee will
5
agree to this.
6
of the sale proceeds so that there are smaller net sale
7
proceeds from each sale which will remain subject to the
8
caveat claim."
9
100 per cent accurate, Mr Devries.
The reason is that this makes better use
Are those your words?---Yes, and they're
10You wrote in similar terms to Royal Guardian Mortgage Company 11
in respect to two other loan accounts, is that correct?
12
---Yes, I did, one of those letters is one of my
13
exhibits.
14We've identified one as Exhibit 35.
I will show you a copy of
15
the other one to Royal Guardian?---And if Your Honour
16
pleases I am happy for this to be made an exhibit as
17
well, if that would assist Your Honour.
18
document or the plaintiff's.
19HIS HONOUR:
Just a moment Mr Johnson.
It can be my
This is not your court,
20
I am conducting this court.
Just have a look at the
21
document?---Thank you, sir.
It's the first page of a 17
22
page fax, Your Honour, again I am concerned about 16, 17
23
of the document not being shown to me.
24MR DEVRIES:
Mr Johnson, that is a letter from you to Royal
25
Guardian Mortgage Corporation, isn't it?---Yes,
26
Mr Devries.
27That is your signature at the bottom?---Yes, it is Mr Devries. 28HIS HONOUR: 29
Thank you?---Your Honour, I ask that the remaining
16 pages of document be tendered also.
30You may do so in re-examination?---Thank you, Your Honour. 31
If
I remember to I shall.
1.:CS 10/12/08 2Cressy
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257
DISCUSSION
1 2#EXHIBIT L 3
Letter by defendant to Royal Guardian Mortgage Corporation, dated 21/01/08.
4MR DEVRIES:
Mr Johnson, by those actions - I'm sorry.
By
5
those two letters you clearly were taking action, I
6
submit to you, to frustrate any claim that my client
7
might succeed – sorry, any judgment my client might
8
succeed in obtaining from this honourable court?---I
9
totally disagree.
10
And may I explain in just one sentence
why I disagree?
11I'll move on. 12HIS HONOUR:
You may - - - ?---Explain it in re-examination.
13In re-examination?---Certainly, Your Honour. 14MR DEVRIES:
Well, perhaps so that I'm not taken by surprise,
15
what is your one sentence explanation?---I was unable to
16
pay the mortgage payments, I had a little pool of moneys
17
over from the Gibson Street refinancing, which was in my
18
Commonwealth Bank.
19
bank statements of mine which show how that money
20
disappeared.
21
been barely enough to catch up all the mortgage arrears
22
as of that date in January, barely enough.
23
Bill Clinton type example, "Yes, I did try marihuana, but
24
I did not inhale", it was technically correct; I did not
25
want to give any suggestion to any of my mortgagees that
26
I was unable to pay my debts as and when they fell due,
27
but I had for six months been relying upon borrowed
28
moneys to meet those obligations, including significant
29
sums of moneys borrowed from family and friends to keep
30
the mortgages up to date more or less as of November
31
2007.
32
so that - - -
Mr Devries has seen copies of those
It wasn't a lot of money, it would have
So in that
What I was seeking to do was liquidate my assets
1.:CS 10/12/08 2Cressy
FTR:1
258
DISCUSSION
1You've gone beyond the one sentence?--- - - - the pool of 2
assets would maintain their value and not be diminished
3
by further interest only mortgage payments that I could
4
not fund.
5
that was an intelligent thing to do.
6
had had any interest – legitimate interest in my pool of
7
assets there should have been some negotiation about
8
quitting those properties at their best price rather than
9
having the mortgage payments continue to chew them up.
And with hindsight, and even with foresight, If the plaintiff
10
At that point my net equity across my properties as a
11
group was about 500, 600,000.
12HIS HONOUR:
Which point is that?---21 January 2008, when I had
13
the contracts for Altona which I needed to discuss with
14
Mr Hanlon on behalf of Miss Cressy because I had never
15
charged her caveat over that property; I never did an 81A
16
application and I had the two contracts for the Point
17
Cook properties which was the roof over my own head that
18
I was saying.
19
in my attempt to maintain the cash value of that pool of
20
assets in dispute, it's gone down from about 600,000 to –
21
based on the information that Mr Devries led on Tuesday
22
or Wednesday of last week, maybe 70,000, Your Honour, and
23
that's in the space of less than 12 months.
As has transpired because I was frustrated
24So you calculate your remaining equity in the properties 25
as - - - ?---I count the hills, and there's two hills;
26
there's Altona, which back in January 21, 2008, would be
27
about quarter of a million.
28
70,000.
That's dropped to about
29Yes?---And the other little hill is my current address of 30
record, 10 Hawkhurst Court, Hoppers Crossing.
31
fee in there is about maybe 30,000.
1.:CS 10/12/08 2Cressy
FTR:1
259
The legal
DISCUSSION
1Well that makes 100,000?---Does it? 2Seventy and 30 - - - ?---No, no, I'm sorry, it's 50 – 50 and 3
30.
4Fifty and 30?---Forty-eight – 48, Your Honour. 5MR DEVRIES:
You had said 100,000 earlier on in these
6
proceedings, Mr Johnson, so what's changed over the space
7
of the last two or three days?---If I could clean up
8
according to what the agent told me, and my reason for
9
booting my tenant out of Hawkhurst Court was twofold; (1)
10
I could make it available by negotiation for Miss Cressy
11
and her children to move into.
12
lowest mortgage of all my portfolio.
13
cleaning up the mess from the last tenant my agent
14
advised me that I would get an increased value of maybe
15
20,000 from it.
16
into – the house is in the same horrible site – state it
17
was when I moved in.
18
my pool of assets in dispute – the hills, Your Honour –
19
sorry, global value maybe 600,000 as of 21 January 2008,
20
and I could have liquidated that and that money could
21
have been - - -
22HIS HONOUR:
It's the least valuable And, secondly, by
I've not had time to put that energy
If there's diminution in value of
All these are based on guesstimates as to values.
23
You don't produce any valuation - - - ?---I have binding
24
unconditional sale contracts in exhibits, Your Honour,
25
for Dorrington Street, Inverloch Drive and Queen Street.
26Yes, but you don't have current valuations?---I have the 27
hearsay from the Herald Sun - - -
28Yes, well that's hearsay?---Yes. 29Anyway, I think that's – let's get back to the point. 30MR DEVRIES: 31
Mr Johnson, when did you - - - ?---Sorry, I was
explaining the hills, I can tell you what hills - - -
1.:CS 10/12/08 2Cressy
FTR:1
260
DISCUSSION
1Mr Johnson, - - 2HIS HONOUR:
I think you've done enough explanation now - - - ?
3
---I'll need to come back to the valleys in re-
4
examination, Your Honour.
5Mr Devries? 6MR DEVRIES:
I should never have asked him to elaborate on one
7
sentence.
8
Commonwealth Bank to purchase 7A Endeavour Drive,
9
Torquay, didn't you?---I did a global funding application
10
- - -
11HIS HONOUR: 12
(To witness) You borrowed from the
The answer is yes, isn't it?---Yes, but it was
when - - -
13Mr Johnson, you're now becoming evasive. 14
In my view it is such
the short answer to that question was clearly yes.
15MR DEVRIES:
When did you make that application to the
16
Commonwealth Bank?---The application for Endeavour Drive
17
refinancing Gibson Street and the two Breezy Street,
18
Brunswick off the plan apartments, it was the four
19
properties - - -
20HIS HONOUR:
When did you make the application, was the
21
question?---That initially would have been maybe, I'm
22
guessing, about July or August 07.
23MR DEVRIES:
You gave them information in December 2007 as to
24
your financial situation, didn't you?---Yes, the initial
25
application got (indistinct) and I had to resubmit
26
material.
27Yes, and was there much change between your financial position 28
in December 2007 and your position that you just
29
described in early 2008, 21 January 2008?
30
to write down every - - -
31HIS HONOUR:
You don't need
1.:CS 10/12/08 2Cressy
And what is the answer to that question?---I may FTR:1
261
DISCUSSION
1
need to – I may not get the transcript in time for re-
2
examination, Mr Devries.
3MR DEVRIES:
Well, is there much change in the position?---The
4
answer is my position was extremely volatile and
5
deteriorating quickly.
6You told the bank in December 2007 that the total value of what 7
you owned was $2.406m and the total value of what you
8
owed was $1.37m, leaving a surplus of $1.035m, didn't
9
you?---I believe you're referring to a historical
10
document so I'd like to know the date of that material.
11Would you like to just answer my question, Mr Johnson? 12HIS HONOUR:
Well, firstly, what was the date of the document?
13MR DEVRIES:
It was – it's got no date itself, but it has an
14
entry that suggests 22 January 2008, Your Honour?---Well,
15
that's after December 07, Your Honour.
16Yes, but there are – would you like to answer my question, 17
please, Mr Johnson.
18HIS HONOUR:
Just a moment, just a moment.
19
request as to when was the document.
20
document was produced in January 2008?
It was a fair
21MR DEVRIES:
You say this
Your Honour, there are two dates on the document,
22
two people were the authors of the document; one person
23
authorised - - -
24HIS HONOUR:
If it's that complicated you will need to show
25
Mr Johnson the document to find out when it came into
26
being.
27
that is a very short question to which there ought to be
28
a prompt response?---Your Honour, defence counsel would
29
like a relevancy check.
And, Mr Johnson, I do not wish to have a speech,
What relevance is what I - - -
30Mr Johnson, this will go to the issue of your assets. 31
overrule your objection.
1.:CS 10/12/08 2Cressy
FTR:1
I
You will look at the document. 262
DISCUSSION
1
Firstly, Mr Devries, is that a document – you say it's in
2
the defendant's hand or someone else's hand?
3MR DEVRIES: 4
believe, Your Honour.
5WITNESS: 6
It's a document that was produced by Mr Ioannou, I
Your Honour, this is a document I have never seen.
think it's a bank internal document.
7MR DEVRIES:
But it's based on information you gave the
8
Commonwealth Bank, isn't it, Mr Johnson?---I would be
9
based on information of mine that had been given to the
10
I
Commonwealth Bank, probably not by me, Mr Devries.
11HIS HONOUR:
Do you say you didn't formulate that document?---I
12
had done so many refinance – well, this is a Commonwealth
13
Bank document, Your Honour - - -
14No, just answer the question?---Yes, Your Honour, this is a 15
Commonwealth Bank document - - -
16That's not under your hand or anything like that?---Certainly 17 18No.
not, Your Honour. I can't see it from here, so?---I'm sorry, Your Honour.
19MR DEVRIES:
I wasn't suggesting that it was - - -
20HIS HONOUR:
Well then you're cross-examining the witness from
21
a third party document.
22MR DEVRIES:
I am, Your Honour.
(To witness) But you gave –
23
that's information that was given to the Commonwealth
24
Bank on your behalf, isn't it?
25
what you knew the Commonwealth Bank to have been
26
informed?---Mr Ioannou, who organised my finances - - -
That's consistent with
27Can you just answer the question, please?--- - - - had a lot of 28
information.
29
gave to the Commonwealth Bank.
30HIS HONOUR: 31
I don't know what information Mr Ioannou
Well, put it this way; is that document, and the
contents of it, consistent with the information that you
1.:CS 10/12/08 2Cressy
FTR:1
263
DISCUSSION
1
gave – is that document consistent with the information
2
you gave to Mr Ioannou for the purposes of him
3
transmitting that information to the Commonwealth Bank
4
for the refinancing you were endeavouring to undertake?
5
Yes, or no?---I don't know, Your Honour.
6
what information I gave to Mr Ioannou.
I don't recall
7All right?---Or what he would have used out of his existing 8
information he held on me.
9MR DEVRIES:
Can you tell His Honour then why you photocopied
10
that document at Mr Ioannou's premises and included it
11
amongst the documents that you have tendered to this
12
court?---I can't recall specifically doing it,
13
Mr Devries, I copied a lot of documents.
14Well, it's come from documents that you have photocopied that 15
you tendered to the court?---I'll accept your word,
16
Mr Devries, but I cannot otherwise take in any
17
recognition of the document; it was just in a bundle that
18
I happened to photocopy - - -
19I put to you that Mr Ioannou is a confidant of yours in respect 20
to your financial affairs, isn't he?---He would know more
21
about, or as much about my property portfolio as I do,
22
Mr Devries, because he's financed all of them by now,
23
except for the remnant AMP one that was put - - -
24And he was your agent in respect to all of the borrowings that 25
he organised for you from the Commonwealth Bank, AMP and
26
other lending institutions, is that correct?---No, not
27
AMP - - -
28Well, the other lending institutions - - - ?---But all of my 29
existing mortgagees, apart from AMP, Mr Ioannou was the
30
mortgage broker (indistinct) - - -
31And you were aware, I put to you, of what he was telling those 1.:CS 10/12/08 2Cressy
FTR:1
264
DISCUSSION
1
lending institutions about your financial affairs?---Not
2
totally, Mr Devries.
3And I put to you again that the information that's in there is 4
consistent with what you wanted him to represent to the
5
bank on your behalf?---The information here will be
6
consistent with information Mr Ioannou had that I had
7
given him, but I don't know how many years ago.
8
that's a fair defence.
9
Your Honour, that - - -
10HIS HONOUR:
I think
Might I mention at this stage,
You've answered the question?---The plaintiff's
11
counsel has received a lot of documents under subpoena
12
which I've never had an opportunity to inspect.
13
were Commonwealth Bank documents given to Mr Devries
14
under subpoena - - -
15MR DEVRIES:
This is the - - -
16HIS HONOUR:
This doesn't relate to the question.
There
We will
17
stick to your evidence at the moment and then, hopefully,
18
one day we will finish?---I'm being cross-examined on
19
plaintiff's documents that I have not had an opportunity
20
by - - -
21You are being cross-examined at the moment, you've answered the 22
question.
23MR DEVRIES: 24WITNESS: 25
Continue on.
I will tender that document, Your Honour.
Can I question is that possible it's a third party
document?
26HIS HONOUR:
It seems to me by your last answer you have a
27
adopted the contents of it.
You say that's consistent
28
with information you gave to Mr Ioannou to - - -?
29
---Maybe.
Maybe in 2007 and in 2006.
Maybe in 2005.
30So you say that the information in that is consistent with 31
information you gave to Mr Ioannou, but not necessarily
1.:CS 10/12/08 2Cressy
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265
DISCUSSION
1
as of January 2008.
Is that what you're saying?---I – I
2
think he may've just recycled the information as at the
3
funding for the Gibson Street - - -
4I receive the document as reflecting what you've just stated in 5 your answer?---So it might be early 2006 information. 6 7#EXHIBIT M Document titled Commonwealth Bank; The 8 Home Loan Investment. Home Loan 9 Application 389007121393603. 10MR DEVRIES: 11
It has a print date at the bottom of some of the
pages, Your Honour, of 22 January.
12HIS HONOUR:
Does that mean that's the date it's been printed
13
up or is that the date it was produced?
14
document was originally produced?
That the
15MR DEVRIES:
Yes, that's what it says at the bottom - - -
16HIS HONOUR:
Does that mean simply that's the date when the
17
hardcopy came into existence, or is that the date when
18
the original document perhaps in electronic form came
19
into existence?
20MR DEVRIES:
The answer is yes to both, Your Honour, because
21
you'll see on the last page there's a signature of an
22
approving officer of 22 January 2008.
23HIS HONOUR:
On the last page?
24MR DEVRIES:
I think it's the last page or the second last
25
I thought it was the last page towards the - - -
page.
26HIS HONOUR: 27
I can't see that but I'll receive it as I've
described it, and we'll move on.
28WITNESS:
Your Honour, may I again ask the relevance of my
29
financial transactions in December 2007, to the periods
30
and the issues in the plaintiff's statement of claim?
31HIS HONOUR:
It has some relevance or may have some relevance
32
as to two issues.
33
source of all the funds that you've deposed to.
1.:CS 10/12/08 2Cressy
FTR:1
One is your claim to have been the
266
Secondly DISCUSSION
1
it may have a relevance as to what if any assets there
2
are, in respect of which the plaintiff makes a claim
3
under Part 9 if she is otherwise entitled to make such a
4
claim?---Even though there's no evidence-in-chief - - -
5I'm not going to argue it?---- - -to support those claims - - 6But Mr Devries is entitled to cross-examine that evidence out 7
of you.
8MR DEVRIES: 9
Between 2006 and December 2007 did you acquire any
properties?---Sorry, Mr Devries, could you repeat those
10
dates?
11Yes.
Between 2006 and the end of 2007 did you acquire any real
12
estate?---Clearly, yes.
13That's reflected in the document that's just been handed up to 14
His Honour isn't it?
15
all of the property transactions that you had undertaken
16
between 2006 and 2008?---I'd need to look at the
17
document.
18HIS HONOUR: 19
That document was up to date for
Do you wish to look at it again?
Could Exhibit M
be shown to Mr Johnson, please?
20WITNESS:
I did settle on the purchase of Endeavour Drive,
21
Torquay a couple of days before Christmas 2007, if I can
22
shortcut the answer.
23MR DEVRIES:
The front page refers to 7A Endeavour Drive,
24
Mr Johnson?---Yes.
Well, I see no further in answer here
25
to the contents because I've exhaustively answered that,
26
Mr Devries.
27You see, Mr Johnson, you've tried to suggest to His Honour that 28
that information was two years out of date.
29
suggesting to you that you know full well that that
30
answer to His Honour's question was false, misleading,
31
untrue and I'll go as baldly as to say a deliberate lie
1.:CS 10/12/08 2Cressy
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267
I'm
DISCUSSION
1
on your part?---Mr Devries, you're stepping very close to
2
Chapter 4 of the Legal Practice Act territory, which I
3
will again - - -
4HIS HONOUR:
Just answer the question?---There are multi-prongs
5
to that argument.
Most of that question.
6
are vile statements about my character.
Most of them
7Mr Johnson, if you don't answer the question - - -?---I have 8
said - - -
9- - -draw an inference against you?---I have said that I 10
purchased that property and it settled pre-Christmas.
11
have explained that information was provided by my
12
mortgage arranger to the Commonwealth Bank.
I
13What Mr Devries - - - ?---I do not know what information or 14
what currency or what cut-off date of that information.
15
I suspect Mr Ioannou would've just repackaged the due
16
diligence materials that I provided for the Altona
17
financing in – and that would've been February 2006.
18
don't recall going to a lot of effort.
19
to sign even loan applications.
20
would just recycle I discovered loan applications from
21
years previously.
22He did more than recycle it.
I
I very rarely had
Basically Mr Ioannou
He's included the Endeavour
23
property in that document - - -?---Yes, yes, yes.
24
would recycle all the information.
25
himself.
26
then he would just submit it.
27
loan application for – on one lender's letterhead being
28
submitted to the next one.
29
be approved or – or several lenders would be approved and
30
with his advice I picked the better one.
31
that application process.
1.:CS 10/12/08 2Cressy
He
He would fill it out
I hate filling out paperwork, Your Honour, and
FTR:1
So sometimes there'd be a
Sometimes the funding would
I left a lot of
I would give him a big kit of
268
DISCUSSION
1
material.
2
into the loan applications.
3
but on the majority of times I wouldn't even sign an
4
application, or I would pre-sign it and he would fill in
5
the details later.
6MR DEVRIES:
I'd leave it to him to translate that across Sometimes I would sign then
Mr Johnson, you said yesterday - I think at p.692
7
of the transcript, Your Honour.
8
had multiple addresses or you used multiple addresses.
9
Was that correct, that you gave that evidence yesterday?
10
---Yes.
11
different business addresses.
(To witness) That you
As late as April last year I had at least five
12What's the difficulty with answering a question yes or no? 13
---I'm trying to save time by giving His Honour the
14
information in the cross-examination process rather than
15
in re-examination.
16HIS HONOUR:
Just answer the question.
You'll save a lot more
17
time if you just give direct answers, Mr Johnson?---I'm
18
concerned I might miss a point in re-examination,
19
particularly - - -
20HIS HONOUR:
Mr Johnson, look, the requirement of you in
21
cross-examination is to answer the questions.
22
you I think more than a day ago that as a judge of the
23
facts when a witness declines to answer a question or
24
where he gives an over-expansive answer to a question,
25
often the perception by the judge of facts is that that
26
witness is being evasive.
27
any justice in the technique you are adopting.
28
just a fair caution to you.
29MR DEVRIES:
I warned
So you are not doing yourself That is
Mr Devries.
Now, you went on to say you still use Dorrington
30
Street, is that correct?
31
Street as your address throughout?---I - - -
1.:CS 10/12/08 2Cressy
FTR:1
And that you used Dorrington
269
DISCUSSION
1Is that correct or incorrect, yea or nay, Mr Johnson?---Yes, up 2
until the date I vacated that property under
3
Justice Cavanough's orders, yes that is correct.
4What date was that?---That is interesting because the 5
written - - -
6What date did you vacate - - 7HIS HONOUR:
It doesn't matter whether it is interesting or
8
not, what date did you leave Dorrington Street?---July
9
this year.
10MR DEVRIES:
When did you resume occupation of Dorrington
11
Street prior to you vacating it on that date?---It was
12
when my tenants left early - - -
13What date?---I think it was during September. 142007?---2007, yes.
Give or take a month.
15Piror to September 2007 when was the last date that you were in 16
occupation at 2 Dorrington Street?---The last time that I
17
was in residence there would have been July or August
18
2003.
19Ms Cressy was in residence then for some time after July 2003, 20
wasn't she?---Yes, up until June 2006.
21My instructor and I have gone through a lot of the loan 22
application documents, Mr Johnson, and there are a large
23
number of documents of yours, and we could spend a fair
24
bit of time isolating them, bank statements, so on and so
25
forth which reflect Dorrington Street as your address,
26
postal address for those documents between July 2003 and
27
June 2006.
28
want us to go through the lengthy exercise of identifying
29
all of those documents?---I wish to save you that lengthy
30
exercise.
Do you accept that that is correct or do you
I can answer it quickly in the detail.
31Is the answer "yes"?---The answer is yes. 1.:CS 10/12/08 2Cressy
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270
DISCUSSION
1What you have said to His Honour is that from July 2003 to at 2
least June 2006 being the relevant period for the purpose
3
of this question, you resided at one or other of your two
4
Bourke Street addresses, Unit 909 and then Unit 2302, I
5
think it's 686 or 998.
6HIS HONOUR:
668 I think.
7MR DEVRIES:
668?---Yes.
8Is that correct?---Yes, for that period it was apartment 909. 9You have said to His Honour not only was that my home but that 10
was my business address, is that correct?---That's not
11
correct.
12You have said to His Honour that that is where you resided for 13
the bulk of that period, hadn't you?---There are two
14
prongs to the question.
15
the whole of that period, July 2003 to at least June
16
2006.
17
business addresses and one of a number of business
18
premises.
19
premise that I had during that period.
Yes, that's where I reside for
It was one of a number of business premises -
There is a difference between an address and a
20But it was a major place that you worked from, wasn’t it, 21
during that period of time?---No, the major place that I
22
worked from during all of that time was either my office
23
within side Primelife Corporation, part of that time it
24
was in Collins Street, part of that time it was 210 Kings
25
Way and the other part where I worked for most of my time
26
was Barwon Water, my office there, 61 to 67 Ryrie Street,
27
Geelong, they were my principal addresses.
28At the very least you maintained an office at that Bourke 29
Street address, didn't you?---Within my home I had an
30
office home and I had a personal assistant come in to
31
work for me a couple of days a week.
1.:CS 10/12/08 2Cressy
FTR:1
271
DISCUSSION
1HIS HONOUR: 2
I thought you told me three days a week?---Yes,
yes Your Honour.
3What period was that that she was employed by you?---Kathleen 4
started off at two days a week.
5Yes, when was that?---She was my full time PA down at Primelife 6
until they retrenched her.
7Just roughly, when did she start coming to the Bourke Street 8
office?---Look, she's good, she did remind me there was
9
something in the dates, it was March - - -
10Yes, which year?---That's the tricky bit, Your Honour. 11I'm sure it is, now you tell me what it is?---I think it was 12
'05, Your Honour.
13Thank you?---And it was in the first week of March '05 starting 14
at two days a week and then progressively increased, she
15
was a Crohn's Syndrome sufferer so she couldn’t work full
16
time.
It was too tiring for her which was one of - - -
17Her health has got nothing to do with this case and you know 18
it?---Thank you, Your Honour.
19Stop stalling for time?---No, Your Honour. 20MR DEVRIES: 21
Did you have a post box address at that stage?
---I needed - - -
22Did you have - - - ?---Yes, yes. 23When did you have that post box address first?---Well, that 24
would go back to '96 or '97 I think.
25Now, I put to you, Mr Johnson, there is no reason why you would 26
maintain 2 Dorrington Street as your postal address
27
between July 2003 and June 2006 unless it was also your
28
residential address?---My answer is that's a ridiculous
29
statement, it's not even a question.
30So you agree with my statement that - - - ?---No, it's a 31
ridiculous multi-prong statement, not a question.
1.:CS 10/12/08 2Cressy
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272
DISCUSSION
1HIS HONOUR: 2
He has disagreed with it.
You have put really a
proposition to him and he has rebutted it.
3MR DEVRIES:
Yes, and that is notwithstanding the fact,
4
Mr Johnson, that you have represented to Guardian Mutual
5
Corporation that your residential address was
6
2 Dorrington Street and had been for three years and two
7
months as at the date you made application for a loan,
8
being 4 August 2005?---Under the formula that His Honour
9
wishes me to adopt in response I have to say I disagree
10
to that question and the previous bundle of statements
11
and I will explain to His Honour in re-examination.
12Have a look at this document, I believe it's been tendered, 13
Your Honour, part of Exhibit 6.
14
questions about this document before?---I am indebted to
15
my learned friend for identifying the source of the
16
document.
17Or maybe part of Exhibit 5.
I have asked Mr Johnson
That is in your handwriting - - -
18HIS HONOUR:
Exhibit 5 or Exhibit 6?
19MR DEVRIES:
5?---Your Honour, none of this is my handwriting,
20
except the signatures.
21You have signed that document, haven't you?---The signatures 22
are mine but the handwriting is - I believe it to be
23
Mr Ioannou's.
24The signature is yours, isn't it Mr Johnson?---I've said that 25
Mr Devries.
26HIS HONOUR:
He's just said he signed it.
27MR DEVRIES:
Yes, and you've read that document before you
28
signed it, didn't you?---As I've said in previous answers
29
this morning, maybe, maybe not.
30
and Mr Ioannou filled in the details.
31
identify which - this is the refinancing for Point Cook.
1.:CS 10/12/08 2Cressy
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273
Maybe I pre-signed it Now, can I just
DISCUSSION
1You don't have to give us a commentary, and it was signed by 2
you - - - ?---I need to identify the document Mr Devries.
3It was signed by you on 4 August 2005, wasn't it?---Yes. 4I think I might ask Mr Ioannou about these rather than 5
Mr Johnson.
On the front page under "Personal details"
6
it's got your name, date of birth and sex, doesn't it?
7
Is that correct, under "Personal Details"?---Name, date
8
of birth and - I can't see the sex one.
9There's a tick, and that's all correct isn't it?---I can't see 10
the sex one but the first two - yes, I do, up next to
11
date of birth, yes, yes, yes.
12A bit further down it's got "Contact telephone numbers," your 13
mobile and your work telephone number?---The work number
14
was my South Yarra address for my practice Sutton
15
Johnson.
16Well, it has those numbers and they're correct, aren't they? 17
---Yes, those phone numbers are correct.
18"Current employer Sutton Johnson," that's correct?---That was, 19
as we know, a name of my legal practice.
20
date of this document?
21"Self-employed," tick.
"Sutton Johnson."
May I check the
"Years in
22
employment, six."
"Occupation, solicitor."
Those were
23
correct?---Yes, that looks right and I practice under the
24
legal firm Sutton Johnson at that date, yes.
25It must be awfully hard to use a three word letter word called 26
"yes"?---It's my favourite word in the English language,
27
Mr Devries.
28HIS HONOUR:
Well start using it?---Thank you, Your Honour.
29MR DEVRIES:
Under "Address" - - -
30HIS HONOUR:
What is this document?
31MR DEVRIES:
It is headed "Guardian Mortgage Corporation,
1.:CS 10/12/08 2Cressy
FTR:1
274
DISCUSSION
1
corporate particulars, loans in company name."
2
Honour, if I can - - -
3HIS HONOUR:
Is that it?
4MR DEVRIES:
Yes, Your Honour.
5HIS HONOUR:
It was Exhibit 6, not Exhibit 5.
6MR DEVRIES:
I apologise, Your Honour.
Your
It's got your
7
residential address as 2 Dorrington Street, Point Cook,
8
doesn't it?---Yes.
9It has got you presently at that address for three years, two 10
months?---Yes.
11And by signing that document you have adopted that as factually 12
correct?---On the point that it was a residential address
13
but not on the point that I was in residence there.
14What is "Period at current address, three years two months."? 15
---That's approximately how long I'd owned that
16
residence, yes.
17Mr Johnson, on the last page there are credit card details, 18
aren't there, and your signature, is that right?---Yes.
19All the writing under "Notes" was there before you applied your 20
signature to that page, weren't they?---On the balance of
21
probability probably not.
22Come on. 23HIS HONOUR: 24
Mr Johnson, could you go to the second page?
---Thank you, Your Honour.
25Do you see the box on the bottom left hand corner next to 26
"Applicant 1, income name," do you see that?---Yes, Your
27
Honour.
28They are your initials, "JJ"?---Yes, Your Honour. 29You signed those initials there?---Yes, Your Honour. 30That was because there was a correction to the gross income 31
stated to make it $240,000?---Yes, Your Honour.
1.:CS 10/12/08 2Cressy
FTR:1
275
DISCUSSION
1You initialled that correction were you?---Yes, Your Honour. 2Thank you?---The correction is not in my handwriting, Your 3
Honour.
4I understand that but you verified it by signing it?---Thank 5
you, Your Honour.
6Thank you. 7MR DEVRIES: 8
Further up under the heading "Assets details", do
you se that little bit there?---Yes.
9Do you see the heading, "Principal residence at"?---Yes. 10Dorrington Street, Point Cook?---Yes. 11You were aware of that when you signed that page of that 12
document?---I was aware that the date - - -
13That it said Point Cook?---I was aware that the residential 14
address stated in the loan documents had to match my
15
credit report information that the lender would – would
16
take, and it had to match my driver's licence.
17You are aware – I know you have great difficulty answering my 18
questions but please, please try.
19
signed off on a document that said, "Principal residence
20
at Dorrington Street, Point Cook"?---I'm aware that
21
Mr Devries line of questioning is way off point in terms
22
of - - -
23HIS HONOUR: 24
You're aware that you
I don't think you've answered the question?
--- - - -conclusion.
25Are you evading that question?
Did you sign that document in
26
the knowledge that it represented your principal place of
27
residence as Dorrington Street?---Irrespective of whether
28
Mr Ioannou inserted some or all of this information after
29
I signed it, and I submit probably it was a bit of both,
30
the answer to Your Honour's question must be yes.
31Thank you. 1.:CS 10/12/08 2Cressy
FTR:1
276
DISCUSSION
1MR DEVRIES:
You heard Mr Ioannou's evidence didn't you?
2HIS HONOUR:
You've got a positive answer to the question, so I
3
think we'll just keep moving on.
4WITNESS:
Thank you, Your Honour.
5MR DEVRIES:
And on the same page at the top under, "Split to
6
applicable refinance owner occupied property", it says it
7
there doesn't it?---Sorry, Mr Devries, which page was
8
that?
9The same page that you were on before; the second page.
At the
10
very top of it in the middle; almost the middle?---Yes,
11
that's what it says, Mr Devries.
12It said that when you signed it didn't it?---Again I can't be 13
sure whether it said that or whether Mr Ioannou put that
14
in later.
It's not my handwriting.
15I tender that document, Your Honour. 16 17#EXHIBIT N Loan application by the defendant, Harold 18 James Johnson, to Guardian Mortgage 19 Corporation dated 04/08/05. 20HIS HONOUR: 21
Do you have a copy of that that can be made an
exhibit?
22MR DEVRIES:
Sorry, Your Honour?
23HIS HONOUR:
Is there a copy that could be made an exhibit?
24MR DEVRIES:
Yes, Your Honour, that's in front of - - -
25HIS HONOUR:
It's on there, yes, thank you.
26WITNESS: 27
Sorry, Your Honour, may I have copies of these
(indistinct) exhibits given back to me, please?
28HIS HONOUR:
You wish to have copies of those exhibits?
29
---Yes.
The ones that Mr Devries has tendered this
30
morning.
31We can organise that at a convenient time?---Thank you, Your 32
Honour.
33MR DEVRIES: 1.:CS 10/12/08 2Cressy
May it please, Your Honour. FTR:1
277
DISCUSSION
1HIS HONOUR: 2
Mr Devries might be able to have his solicitor
make copies of those documents.
3WITNESS:
More than - - -
4MR DEVRIES:
Unfortunately, Your Honour, the copy I have is
5
marked but I'll still give him a photocopy of that.
6
marked - - -
7HIS HONOUR:
Thanks.
8MR DEVRIES:
Towards the end of yesterday - - -
9HIS HONOUR:
Is that the original?
It's
Sorry.
10MR DEVRIES:
Yes - - -
11HIS HONOUR:
Yes.
12MR DEVRIES:
Sorry, Your Honour.
(To witness) Towards the end
13
of yesterday I was asking you questions about your
14
expenditure figures, from the $9000 that you took out
15
from time to time from your bank account in cash.
16
recall me asking you those questions?---Yes.
Do you
17I put you on notice that I'd be asking you some questions about 18
that today, to give you the opportunity to clear your
19
head and give us that information.
20
than you said you were in yesterday.
21
me - - -?---Yes.
22
raising this issue again.
A less confused state Do you recall
I'm grateful to my learned friend for
23Have you sorted through those figures in your own mind?---I 24
believe, yes, yes, Mr Devries.
25First of all do you stick by the figure of $9000 per week on 26
Mondays?---I stick by the figure that it was $9000 every
27
second Monday and most – in between Mondays it was $9000
28
also give or take a day, give or take a few thousand
29
dollars.
30
cent of the time, Your Honour.
The answer's yes, in the broad brush 80 per
31So instead of being every Monday how many Mondays are we now 1.:CS 10/12/08 2Cressy
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278
DISCUSSION
1
talking about on average?
2
Monday was a public holiday and you said there were a lot
3
of Monday public holidays, and to the best of my
4
recollection there's probably two or three a year now.
5
But if we treat the Tuesday of a long weekend week as
6
being a Monday for the purpose of this exercise, how many
7
Mondays in a 52 week year would you have drawn out $9000
8
or thereabouts over the period that you gave evidence
9
yesterday?---Thank you, Mr Devries.
10
Sorry, how many weeks?
If
I was living on a
fortnightly cycle.
11No, no, just answer the question?---So that would be 26 Mondays 12
and that would be pretty definite.
Twenty six Mondays of
13
the year.
14
or it might be the Friday before or the Tuesday after.
15
Mostly it would be 9000.
16
Very rarely it might be 18,000.
17
80 per cent of Mondays – any given Monday when my cash
18
flow was high and my commitments were high, there's an
19
80 per cent chance I would be at my bank; ANZ Bank.
20
big gothic one in Collins Street, drawing out - - -
In the alternate week – most of those Mondays
Sometimes it might be 6000. So in the broad brush
The
21HIS HONOUR:
We don't need a description?---Drawing out $9000.
22MR DEVRIES:
So 26 Mondays being every second Monday and 80 per
23
cent of the other 26 weeks you did the same thing.
24
that correct?---Twenty six Mondays.
25
part of your question, Mr Devries?
Is
What was the last
26Eighty per cent of the alternate weeks you would've drawn out 27
9000, but it might not be on a Monday?
28HIS HONOUR:
I don't think Mr Johnson's putting that.
I think
29
what he's saying is, in a very complex overdetailed
30
manner, that we could work on the basis that 80 per cent
31
of each Monday in a year he withdrew $9000.
1.:CS 10/12/08 2Cressy
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My rough DISCUSSION
1
arithmetic is that basically that would mean about 36, 37
2
Mondays a year you would have taken out $9000 from this
3
bank, is that right?---Yes, Your Honour.
4MR DEVRIES:
It comes to almost 42 weeks, Your Honour.
5HIS HONOUR:
All right.
6MR DEVRIES:
So at least 42 weeks a year over a three year
7
period you are talking about?---I've explained
8
organically, I'll accept your calculation, Mr Devries,
9
and His Honour's calculation would be - - -
10All right, and on those other ten weeks you'd still be drawing 11
out money, but maybe not $9000, is that what you're
12
saying?---No, it might depend on the cash flow.
13
would be some weeks I might have 120 grand lob into my
14
bank account.
15
definitely happened, it's an important date I can recall.
16
But there might be other periods where I might go for six
17
weeks without any money going in, so I'd be relying on
18
whatever was in the bank or whatever cash reserves I'd
19
pulled out on the most recent Mondays or Tuesdays or
20
Fridays.
21
apartment at most times and I had credit cards as
22
cushions to draw on.
23HIS HONOUR:
There
I had a week in July 2006 where that
I kept a fairly solid cash reserve in my
Well, I don't really need a commentary unless
24
Mr Devries wants it, he was really asking what you were
25
withdrawing at the moment?---Yes.
26Let's just stick to that, all right?. 27MR DEVRIES:
Your commitments that you used this cash for were
28
2200 per month for your wife and her family, is that
29
correct?---Yes, Mr Devries.
30
this rather than Mr Devries repeating those questions.
Yes.
I believe I can assist
31No. 1.:CS 10/12/08 2Cressy
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DISCUSSION
1HIS HONOUR:
Mr Devries is asking the questions, you will
2
answer the questions?---I shall, Your Honour, thank you.
3
May it please Your Honour.
4Yes, you definitely will. 5MR DEVRIES:
Now, Mr Devries, your next question.
Is the figure still $12,000 per month for your
6
total mortgage payments?---As at July 2006 that's an
7
accurate figure, yes.
8July 2006? 9 10
What about July 2005?---I would not have had a
mortgage obligation in respect of Gibson Street or Altona.
11Just guess a figure?---Half of that. 12Six thousand?---Yes. 13So we'll stick to July 2006 then; so July 2006 you're paying 14
your ex-wife 2200?---Yes.
15You're paying mortgage payments of 12,000 per month?---Yes. 16You're paying rental by that stage of $2345 per month?---Yes. 17You're paying $100 per month for Osborne Street, South Yarra? 18
---Yes.
19And $700 per month for 140 William Street and Chifley Square? 20
---Yes.
21You were paying an average per month of about 6500 off your tax 22
debt arising out of Artemis?---No.
23What figure are you saying average per month at that stage? 24
---The tax debt was a more complicated aggregate of
25
obligations, a very small – less than a quarter of that
26
was carried forward from the Gallery of Artemis.
27How much were you paying off accumulated tax debts on average 28
per week in the period around July 2006, Mr Johnson?---I
29
don't think I was paying that as a rule out of the – the
30
Monday treasury drawings, the $9000 figure.
31So that was on top of - - - ?---I think so. 1.:CS 10/12/08 2Cressy
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281
Yes, Mr Devries. DISCUSSION
1You think so?---Yes.
I was a very busy man, Mr Devries.
2Are you sure it's so?---Am I?
Sorry, what was the question?
3Are you sure that you were doing that?
I mean, it's your
4
money, it's a lot of money, as busy as you are you'd know
5
what you're doing with your money, particularly that sort
6
of figure?---My cash flow ran rapidly like the Amazon
7
River, I believe that's correct.
8And it was about $6000-odd per month?---Again, there was 9
nothing that regular, it was big lumps - - -
10HIS HONOUR:
I think we worked out yesterday that during that
11
period you managed to pay off a tax debt that would have
12
meant you were paying on average 6000 a month, whilst
13
they may have been irregular payments, nonetheless it
14
would come out on average as 6000 a month, is that right?
15
---Yes, but I think it's misleading as to the actual
16
flows of the cash because there were peaks and valleys.
17Yes?---Activity and hiatus. 18Now, that tax debt reduction, you say, didn't come out of the 19
$9000 cash that you were withdrawing on most Mondays, it
20
was over and above that, is that right?---I think so,
21
Your Honour.
22
rule I think it did, yes.
Some of it might have, but as a general
23Thank you?---Thank you, Your Honour. 24MR DEVRIES:
And there was $6000 per month for credit cards,
25
you said yesterday, is that figure still correct?---Yes,
26
yes, give or take a thousand either way, that's correct.
27Now, did you have any other regular commitments?---Lots – lots 28
of - - -
29Any lease payments that you were making out of that $9000? 30
---Lots, Mr Devries, I had lots of living expenses.
31I'm not talking about your living expenses, I'm talking about 1.:CS 10/12/08 2Cressy
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282
DISCUSSION
1
payments that you were committed to, like lease payments,
2
repayments of some sort.
3
when it suits me, Mr Johnson?---I think we've covered all
4
my legal commitments.
5
that I still use.
We'll get to living expenses
There was a carpark – the carpark
6And how much do you pay for that?---That was $175 a week.
That
7
was for Kathleen to park in the basement of my apartment
8
on the days she came in.
9I thought you gave evidence yesterday that there were – you had 10
three carparks?---I – at most times I've had six cars,
11
Mr Devries.
12I'm sorry?---Most times in the relevant period I've had six 13
cars.
14Right, how much did you pay for car parking spots for your six 15
cars?---When I moved from 909 to 2302 - - -
16No, we're talking about July 2006, Mr Johnson?---Yes, that's 17
when I moved from 909 to 2302, I went from one carpark to
18
two carparks in the building.
19So that would be your rent, 350 a week?---No, no, no, that was 20
built into the 2345.
21OK, so the other car park would have cost you, on average, per 22
month, $760?---No, exactly 175.
23You said 175 a week?---Did I? 24
I'm sorry, 175 a week, which is
what I still pay for it today.
25One hundred and 75 a week?---A month, Mr Devries. 26HIS HONOUR: 27
Were you paying that out of the cash you were
withdrawing?---Probably, probably.
28And I'm not sure - - -?---It was a fringe benefit for Kathleen, 29
while she worked for me, so I would adjust that out of
30
her payslip.
31And the credit card you were repaying each month, were you 1.:CS 10/12/08 2Cressy
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283
DISCUSSION
1
paying that out of the cash that you were withdrawing?
2
---Yes, yes.
3Right?---As a general rule, the bulk of the drawings on one 4
Monday would be to top up bank accounts to pay mortgages.
5M'mm?---Now, child support one direction, the following drawing 6
in the off week, if I may put it that way, would be the
7
credit cards and child support in the opposite direction.
8Right?---Thank you. 9MR DEVRIES:
Did you have lease payments or financing or
10
anything like that for any of your six motor vehicles?
11
---Not by that time, Mr Devries, and not for a number of
12
years prior.
13So you had no regular repayments in respect of those six motor 14
vehicles in July 2006?---No, I owned - - -
15You just - - -?---I owned all of them, because I think it was 16
four at that stage, and I owned them outright, none of
17
them are worth much.
18And you paid insurance, registration, and all of those 19
compulsory payments on the vehicle - - -?---Insurance
20
is - - -
21- - - four vehicles?---Insurance is for all the properties at 22
several levels, the compulsory insurance on the vehicles.
23Just talk about the vehicles at the moment, Mr Johnson?---I 24
never took out third party fire and theft, that sort of
25
insurance, it would have been quite prohibitive for all
26
four vehicles, there weren't suitable products on a
27
premium.
28Were they paid out of this 9000, all of your insurances, 29
whatever they were, and car registration fees, things
30
like that?---The aggregate of those annual costs is
31
relatively small compared to a $9000 - - -
1.:CS 10/12/08 2Cressy
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284
DISCUSSION
1I'm just asking you whether you paid for those out of the $9000 2
cash that you drew out?---The insurances for the
3
properties, I probably drew cheques separately, or the
4
agent paid them and netted them out of the coming month's
5
rent.
6
probably just cash that I had available out of those
7
$9000 drawings.
8
paid over the counter, or no, more likely I would have
9
paid by credit card over the phone, I think.
For the motor vehicles, the motor vehicles are
Yes, the motor vehicle rego I probably
So I think
10
separately, the insurances were paid by other fund flows,
11
not the cash I would be drawing out of the bank every
12
week.
13And you gave evidence that you had to do a lot of travelling 14
from Melbourne for Geelong to cater for your various
15
clientele spread between Melbourne and Geelong, so you
16
would have - did you do that, in motor vehicles at that
17
stage or by public transport?---Motor vehicles, which is
18
why I thought I deserved to have a nice, fun car, or a
19
selection of cars to use.
20Did your petrol come out of the 9000, or did it come out of 21
credit cards, or - - -?---The routine I hit on for
22
accounting purposes was I had a designated credit card to
23
pay that, so, as a rule - yes, I think I've answered the
24
question.
25You had your own living expenses on top of that?---Yes, and 26
extra moneys I'd give to Julie and extra moneys that I'd
27
get given or spend on the children, or - - -
28So the answer to the question about you had your own living 29
expenses is yes, is that right?---I lived somehow,
30
obviously the answer's yes, Mr Devries.
31
(indistinct) if that's what you're implying.
1.:CS 10/12/08 2Cressy
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285
I wasn't
DISCUSSION
1Leaving aside your tax debt, repayment, that comes to about 23 2
and a half thousand per month.
You've been - sorry,
3
living at your living expenses, leaving out the 6000 odd
4
dollars you might have been paying towards your tax, that
5
comes to about 23,500 per month?---I am comfortable with
6
that math, because it matches my 25 to $30,000 figure I
7
gave in previous answer to you, Mr Devries, yesterday
8
afternoon, that's my rule of thumb, whether I was above
9
water or going backwards.
10You said yesterday that that was paid out of net after tax 11
income?---Maybe I confused myself with terminology.
What
12
you've identified, Mr Devries, is on the numbers we
13
talked about yesterday, and I'm indebted to you for this,
14
in terms of what an accountant would call a funds flow
15
analysis.
16
funds in of 9000 and that whole list of expenditure, so I
17
must have had either other sources of funds or other
18
sources of income, and I'd accept both those
19
propositions.
20
from legal practice.
There were some gaps between my statement of
Well, apart from what I was earning as a -
21Well, you see Mr Johnson that if you had to have 23 and a half 22
thousand, the six and a half thousand being your average
23
tax debt repayment, you get to a neat figure of 30,000
24
and you still haven't factored in your living expenses
25
and moneys that you claim you paid my client and moneys
26
that you claim you paid your wife over and above the
27
2200.
28
Mr Devries, yes.
Do you understand what I'm putting to you?---I do,
29Let me cite your living expenses and what you say that you gave 30
my client which you know she disputes, and what you say
31
you gave to Ms Johnson?---Ms Cressy do you mean?
1.:CS 10/12/08 2Cressy
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286
DISCUSSION
1No, Ms Johnson?---Mrs Johnson, she hasn't changed her name, 2
Julie hasn't.
3I said "Ms".
That $30,000 per month post-ongoing tax.
Do you
4
still stick to those figures, Mr Johnson?---I do and I
5
can explain to you now or in re-examination what those
6
other sources of funds and other sources of income where
7
and that they had nothing to do with the plaintiff.
8How much did your income change between August 2005 and July 9 10
2006?---I think - and the answer will be in one of the exhibits, this is my retainer letters and - - -
11Just answer the question please Mr Johnson?---I think in that 12
period my hourly rate under retainer from Primelife leapt
13
from $180,000 to 200,000 - sorry, $180 an hour to $275 an
14
hour, a quantum leap and I think that is demonstrated in
15
the - - -
16How much did your average monthly income go up between August 17
2005 and July 2006, Mr Johnson?---I don't want to answer
18
more precisely than that because I don't have the
19
records, the bank statements or the tax returns because
20
they were unlawfully taken from my home in November last
21
year and they have been sitting rotting, with all due
22
respect to Federal Magistrate O'Dwyer, in his keep for
23
the duration.
24
any way, shape or form.
25
the gentleman, the custodian - - -
I can simply not access those documents in I did make an appointment with
26Mr Johnson - - 27HIS HONOUR:
We don't need that?---Thank you, Your Honour.
28There are some tax returns in the earlier exhibits you tendered 29
but I take it they don't contain the tax return for the
30
2006 financial year?---I don't imagine they would Your
31
Honour.
1.:CS 10/12/08 2Cressy
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287
DISCUSSION
1MR DEVRIES:
I have had a look for those, Your Honour.
I am
2
relying on Mr Johnson's acknowledged income in the - I
3
think it's the second last exhibit, the Guardian Mortgage
4
Insurance document.
5
$240,000 per annum.
6HIS HONOUR: 7
His gross income he declared at
For which year, the year ending 2005 that would
be.
8MR DEVRIES:
That was as at 4 August 2005.
9HIS HONOUR:
How much was it?
240?
10MR DEVRIES:
240,000.
11HIS HONOUR:
Gross.
12MR DEVRIES:
Gross.
13HIS HONOUR:
Yes?---Sorry, what was the month Mr Devries?
14MR DEVRIES:
This is - - -
15HIS HONOUR:
That document was signed on 4 August 2005, that's
16
Exhibit N?---That would have been based on 2003 tax
17
information possibly, maybe 2004 tax information at the
18
very recent.
19
14 months or a year after the tax year, so what you
20
submit to the bank you can imagine is always a minimum of
21
one year, sometimes two years in arrears.
Your tax returns are always prepared
22MR DEVRIES:
Mr Johnson - - -
23HIS HONOUR:
So you were understating for the purposes of
24
getting a loan, you were actually understating how much
25
income you had?---The banks make you do that because they
26
only look at your last tax return and that is generally
27
speaking a year or more in arrears.
28
information as well.
They ask for current
29Yes, they do?---But they don't accept the current information, 30
they only go by the tax return as hard evidence for the
31
purposes of their loan approval.
1.:CS 10/12/08 2Cressy
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288
DISCUSSION
1MR DEVRIES:
Mr Johnson, that figure was changed, altered and
2
you initialled it and you are holding out as a lawyer, an
3
officer of the court, a person that you think should be
4
believed because you have been a solicitor for a long
5
period of time, you are holding out that your gross
6
income was 240,000 per annum and that your total rental
7
income prior to the purchase of your investment property
8
was 20,800 per annum, which makes it 268,000 per annum
9
and you expected to get rental income of another $14,000.
10
Sorry, Your Honour, I thought you had that in front of
11
you?---Lots of statements by Mr Devries and I didn't hear
12
too many questions, Your Honour, but I can simply say
13
that that figure that was put into - - -
14I haven't asked you the question yet Mr Johnson?---Okay, I 15
withdraw.
16Occasionally allow me to have the floor, Mr Johnson.
You said
17
your gross income was 240,000 per annum, that your rental
18
income - - - ?---Sorry, was that a question?
19HIS HONOUR: 20
That is what is set out - - - ?---I didn't get to
answer Your Honour.
21That is what is set out in the document. 22MR DEVRIES: 23
Yes, I am setting the scene for my question,
Mr Johnson.
24HIS HONOUR:
Do you have a copy of that exhibit in front of
25
you, Mr Johnson?---I don't but I recall from glancing at
26
it a moment ago, I don't have it.
27Do you wish to see it?---I don't need to, Your Honour, the 28
answer is really simple.
29
setting to proceed it, Your Honour.
30MR DEVRIES: 31
It doesn't need too much scene
The rent figures were gross rental figures,
weren't they, they weren't net of outgoings on the rental
1.:CS 10/12/08 2Cressy
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289
DISCUSSION
1
properties, is that correct?---They would have been net
2
of everything except the mortgage payments.
3
have been net of the managing agents commission and they
4
would have been net of any repair work that had been done
5
to the property.
They would
6So you are getting - you were netting exactly $200 per week for 7
each of those two properties after repairs, agents
8
commissions, agents costs and so on?---Which properties
9
were they, Mr Devries?
10Rental property income - two rental income, three - they're 11
your documents?---I believe they're your documents
12
Mr Devries.
13Presumably Hawkhurst Court, Hoppers Crossing is one and Lisa 14
Court, Hoppers Crossing is the second one?---I believe
15
that's accurate because I had a good tenant at that time
16
in 2005.
17
and her boyfriend - - -
At the Hawkhurst property and Ms Cressy Senior
18I am just asking you whether there was $200 - - - ?--- - - 19
were paying about $180 a week in rent and they were
20
actually paying their rent for Lisa Court at that stage,
21
so yes, I think that's about right, it would have been
22
around about $200 a week, a little above for Hawkhurst
23
Court and a little below the $200 benchmark for Lisa.
24
But yes, the cash was flowing and there were very little
25
outgoings on that.
26You do persist in having difficulty in answering a simple 27
question in brief, don't you Mr Johnson?---I disagree.
28HIS HONOUR:
Ask the question again.
29MR DEVRIES:
Yes.
According to this document, leaving aside
30
the property you were intending to purchase, your gross
31
income was $260,800, that's what that document says isn't
1.:CS 10/12/08 2Cressy
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290
DISCUSSION
1
it?---Is that based on the practice income.
2
figure you gave me was 240.
I think the
3240 plus 10,000 plus 10,000 makes 260,000, there's a couple of 4
$400 as well, so 260,800?---The answer to that question
5
is yes, Mr Devries.
6You were expecting to get another $14,000 income on top of 7
that?---Being the income from the rental of Gibson
8
Street, yes.
9Out of that 240,000 you would be paying tax to make provision 10
for tax, leaving aside accrued arrears tax?---No, because
11
that 260 was substantially a historical figure being
12
taken out of my income tax return for the year ending
13
2004.
14It's a gross income?---Yes. 15I put to you, Mr Johnson, that you are not being frank, candid 16
and truthful in suggesting that figure was two years out
17
of date on that document?---I put it to you, Mr Devries,
18
you are making more vile statements which are unbecoming
19
of an officer of this court.
20
statements and I shall answer the question properly in
21
re-examination unless Your Honour invites me to give the
22
simple explanation right now.
I disagree with the
23I am not going to fall for that trap again Mr Johnson?---Then I 24
ask you, Mr Devries, to withdraw your vile remarks about
25
me.
26HIS HONOUR:
You will simply answer the questions, witness?
27
---Excuse me, Mr Devries, sorry for interrupting, Your
28
Honour, but as defence counsel I would again ask for a
29
relevance check.
What relevance does this - - -
30This is relevant, it's cross-examination that goes to your 31
financial means during the relevant period?---But how
1.:CS 10/12/08 2Cressy
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291
DISCUSSION
1
does it go to the assertion that Ms Cressy contributed
2
money to my living or to my properties.
3Testing your assertion that you were the sole means of support, 4
as I understand it?---Testing the past - - -
5You may proceed, objection overruled. 6MR DEVRIES:
May it please Your Honour.
If that document is
7
accurate, your gross weekly income was $5,285,
8
Mr Johnson, out of which you were paying about $2,000 a
9
week more than that?---Mr Devries, I have already
10
answered that that is accounting information that is
11
presented, it's no more accurate than a public company's
12
reported balance sheet to the Australian Stock Exchange.
13
It's accurate as to the current asset value of the
14
assets.
15But you see, Mr Johnson, you're the one who signed off on it? 16
---That's not in doubt, Mr Devries, they are my
17
signatures, I did obtain those - - -
18In your submissions - perhaps you could keep your submissions 19
to another time and we could move on.
Now, you said that
20
you were such a busy man you didn't have time to fill out
21
documents and you left them to other people to fill out,
22
do you recall giving that evidence?---Yes, that was this
23
morning, Mr Devries.
24During the course of your evidence you said you worked up to 25
120 hours a week, was that a mistake and did you mean up
26
to 120 hours a fortnight or did you genuinely mean 120
27
hours a week?---Look, that's an exaggeration, there would
28
be fortnights where I would record and charge Primelife
29
for 110, 112 hours a fortnight.
30I'm not asking you what you charged for - - - ?---Another 31
20 hours as a rule of time that I did for Barwon Water.
1.:CS 10/12/08 2Cressy
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292
DISCUSSION
1Sorry, the question Mr Johnson was was the 120 per week that 2
you said a mistake either of yours or the transcript and
3
did you mean 120 a fortnight.
4
or no?---There were lots of peaks, not many valleys, the
5
Mt Kosciuszko of the peak would be 120 hours a week.
The answer is either yes
6So you meant 120 hours a week but not 120 hours a fortnight 7
when you gave that evidence, is that correct?---I just
8
answered that questions, Mr Devries.
9Is that correct?
We haven't because you keep dancing around.
10HIS HONOUR:
Just move on please.
11MR DEVRIES:
Sorry, Your Honour?---Thank you, Your Honour.
12I am hoping to finish before lunch, Your Honour. 13
the time.
14HIS HONOUR: 15
It's not so much time, you will have to bring some
point to these questions.
16MR DEVRIES: 17
I am aware of
I am, Your Honour, I am hoping that it becomes
clear after two or three questions.
18HIS HONOUR:
M'mm.
19MR DEVRIES:
So you're spending up to 120 hours a week working
20
for your various clients, is that correct?---My minimum
21
obligation were 50 hours.
22It's was up to 120 hours, Mr Johnson. 23HIS HONOUR:
You just said your Mount Kosciuskos were 120, you
24
said there were more peaks than valleys?---There were
25
very few valleys.
26Right, and a lot of peaks, you were saying?---Yes, yes. 27Yes?---So by minimum, by minimum - - 28Do you want to change that?---No, Your Honour. 29Or are you sticking to the evidence you gave a moment ago? 30
---Absolutely, Your Honour.
31Let's stay with that. 1.:CS 10/12/08 2Cressy
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Mr Devries? 293
DISCUSSION
1MR DEVRIES:
Thank you, OK, and what were your minimum
2
obligations in terms of hours per week?---I'm indebted to
3
my learned friend for that question.
4Just answer the question. 5HIS HONOUR:
You don't - you just answer the question?---Thank
6
you, Your Honour.
7
with - - -
8MR DEVRIES: 9
They set out in the exhibits
Just answer the question, in terms of hours,
Mr Johnson, without a speech?---They are in evidence for
10
His Honour in exhibits.
11
was earning - - -
For Primelife, typically, when I
12Just a total figure, Mr Johnson, please?---Thirty hour minimum 13
for Primelife, 20 hour minimum per (indistinct) and I had
14
other clients, so small clients as well.
15Not less than 50 hours per week?---Yes, Mr Devries. 16Probably not less than 60 hours per week?---It'd be rarely 17
under 80 hours per week, Mr Devries, as the evidence will
18
demonstrate.
19So the range is 80 hours to 120 hours per week?
Do you have to
20
write down the question before you can answer it?---I do,
21
because I may not have a transcript for the purpose of
22
re-examination.
23Are you - - 24HIS HONOUR: 25
Just answer the question?---I think - if you got a
sample of numbers, 120 would be at the high end.
26Yes?---There'd be very few down in the zeroes or the tens or 27
the 20s.
The 80 would be the mode or the mean.
28Right?---For that sample set, Your Honour. 29We'll work on those figures. 30MR DEVRIES: 31
Does that include all the travel you had to do to
service your clients between Melbourne and Geelong?---I'm
1.:CS 10/12/08 2Cressy
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1
in an ethical law firm, and I don't charge for
2
travelling.
3I'm not asking your - - 4HIS HONOUR: 5
Well, that 80 to 120 hours guesstimate by you does
not include travelling time?---No, Your Honour.
6Right. 7MR DEVRIES:
What would your average number of hours per week
8
be in the motor vehicle for work purposes?---Most
9
commonly I would be driving from Bourke Street to - - -
10Just give us - - -?---Five minutes. 11You didn't have to travel to Geelong at all?---Most days I'd be 12
working at Primelife, which was either in Collins Street,
13
so it was a walk in the early days, I'd be driving down
14
Kings Way, and I had a parking spot down there to - - -
15So the answer is you didn't travel to Geelong?---The answer is 16
most days I worked in South Yarra.
17
one day a week, I might go one day a month.
18
happy with me, they knew me, I could work offsite, as if
19
I was in the Lorne office or the Apollo Bay office, South
20
Geelong office, it didn't matter to people that I wasn't
21
in the Geelong office.
22HIS HONOUR:
I might go to Geelong They were
So the Geelong trips - - -
The short answer is you would go there once a
23
week, once a month?---I would try for once a week, but
24
sometimes I was so busy with Primelife I might not get
25
there for a whole month.
26Right, well, that's all we need as an answer?---Thank you, Your 27
Honour.
28MR DEVRIES:
Did you work seven days a week, six days a week,
29
or five days as a week as a norm?---I was living a
30
fortnightly cycle, which was driven by - - -
31Just - can you answer the question? 1.:CS 10/12/08 2Cressy
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DISCUSSION
1HIS HONOUR: 2
Well, per fortnight, how many days per fortnight
did you work?---Eleven, 12.
3So at the high end of the scale, you were working 20 hours a 4
day, and at the low end of the scale, you were working 12
5
hours a day, doing your - on the days you were working?
6
---The 20 hours a day would be required to - if it was an
7
120 hour week, yes, there'd be many of those.
8
often work a 36 hour shift straight, just as I had in my
9
Minter Ellison days.
I might
When I'm healthy, I don't need a
10
lot of sleep, I had almost a barely figure sleep at all
11
this week, Your Honour.
12MR DEVRIES:
So you agree with me - actually, the figure is -
13
if you work 12 hours a fortnight, 80 hours a week, you're
14
working 13 hours on those days you were working, 13 on
15
the third, and you're working 120 hours a week, perhaps
16
spread over 12 days, that's 20 hours on those days.
17
you agree with those figures?---Save that I - I might
18
have billed 15 or 16 days into that fortnight to get the
19
120, I had a little bit of latitude whether I rendered my
20
bill as of a close of a Friday or close of a Monday.
21HIS HONOUR:
Do
We're not asking - Mr Devries is not asking about
22
your billing, he's asking about the actual hours worked,
23
and you understand that, so do not be evasive, answer the
24
question?---Forgive me, Your Honour.
25I don't.
Answer the question?---I would rarely work less than
26
12 hours a day, except for those days that I had David,
27
Dylan, and Jessie with me, and/or Treece, Skye, Illyana,
28
and all six of them with us.
29MR DEVRIES:
I'm going to keep asking you the question until
30
you choose to answer it, Mr Johnson, or until His Honour
31
rules me out of order.
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Your average working day for the 296
DISCUSSION
1
12 days a fortnight that you worked would range between
2
13 hours and 20 hours per day, is that correct?
3
billing hours, but actual time you were working?
4
---Thirteen would be normal, 20 would be extreme.
Not
5And this was your pattern right from the time you met my client 6
until about the middle of 2007, is that correct?---Not
7
correct.
8Most of that time that you worked a minimum of 13 hours a day, 9
12 days a fortnight on average?---Most of the time I
10
lived at Gheringhap Street I worked less than that.
11
There would be periods when client demand didn't
12
necessitate me to work that long.
13
board and managerial upheavals.
14
through Primelife while I was there, so on a number of
15
occasions my three month retainer looked like getting cut
16
after three years or after four years.
17
hiatus where I would not have any funding from there for
18
a while, and then suddenly I'd be back in.
19
another broom - - -
There were a number of Several new brooms swept
I would have a
There'd be
20I'm not talking - - -?---- - - vacuum cleaner and then my – my 21
earnings would increase by 150 per cent.
22Did you understand, Mr Johnson, I'm not asking about your 23
income situation.
I'm asking about the number of hours
24
you devoted to your work.
25
Mr Johnson, is that during the period of time that my
26
client says there was a relationship between you and her,
27
the evidence you've given to His Honour over and over
28
again is that you were a very hardworking person and that
29
you put a lot of hours into your work.
30
that.
31
many hours you devoted to your work, and that has nothing
What I'm putting to you,
I'm not disputing
What I'm trying to do is put a finger on about how
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DISCUSSION
1
to do with your income situation.
I'm just trying to put
2
a finger on how much time you spent working.
3
agree with me that throughout most of that relationship
4
you worked a 12 day fortnight and you averaged about 13
5
hours a day at your work?---Your Honour, there's a lot of
6
assumptions in the way that question was put.
Now, do you
7So you don't agree with that?---It's very hard to – one single 8
figure over a ten year work history where there were
9
multiple businesses.
10HIS HONOUR: 11
You've told me that you averaged 80 hours a week?
---This is looking at the period - - -
12What period is that?---OK, thank you, Your Honour. 13 14
The period
after I had my dual retainers for Primelife and Melbourne - - -
15So that's from about 2002 onwards?---I think that was late – 16
late – I'm – I'm trying to – late 2001.
17Late 2001 until?---Up to very early – between Christmas and 18
Easter 2007.
19You were working an average 80 with going up to a 120 hour 20
week?---During – during that - - -
21During that period?---During that period. 22MR DEVRIES:
Thank you.
I'm indebted to Your Honour for that.
23
(To witness) Now, those hours that you spent working for
24
your clients that was over and above all your other
25
activities on Law Institute boards, writing articles for
26
the Law Institute Journal and other journals, giving
27
papers and so on and so forth isn't it?---I wasn't doing
28
very much of that even at the early part of that period
29
we've just discussed.
30So you did all of that before 2001?---The bulk of this I 31
would've done during my Minter Ellison period.
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I DISCUSSION
1
continued writing the monthly column up until I think
2
2002.
Maybe 2003 but not beyond that.
3You gave up all your other - - -?---I gave up the seminar 4
circuit, yes, Mr Devries.
5Sorry?---I gave up the seminar circuit, yes. 6You gave up all your other Law Institute activities from 7
sometime around 2002?---My chairmanship of the GST
8
taskforce ended after nearly three years.
9
was late 2000, early 2001.
I guess that
It's – it's my (indistinct)
10
document which maybe I can give to His Honour in
11
re-examination or I'm happy to do that now.
12I'm just trying to find out about that extra time, and the 13
reason that you say that we're talking about a 12 day
14
cycle out of 14, is that the other two days you generally
15
had the Johnson children with you?---From the Friday
16
early evening through until the Sunday evening, yes.
17
the Sunday evening and the Monday morning would be my
18
transformer period hence that particular Monday every
19
fortnight being my treasury day.
20So 12 days a month you're working.
So
Two days – sorry, 12 days a
21
fortnight you're working.
Two days a fortnight you're
22
with the Johnson children?---Yes, every second weekend
23
for that.
24Whilst you had the Johnson children with you you were a devoted 25
dad to them weren't you?---Thank you, Mr Devries, yes.
26You were in substantial attendance with them. You did activities with them.
You spent time
27
with them.
Is that
28
correct?---I was sole parent with them, Mr Devries, yes,
29
of course.
30My client says that you were sole parent along with her but 31
whether she was there or not you devoted yourself to the
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DISCUSSION
1
interests of the children, and the activities of those
2
three children is your evidence?---Of course and I'm
3
happy to answer this line of questions, Your Honour, but
4
defence counsel wants to know the relevance to this - - -
5HIS HONOUR: 6
They're relevant.
Continue on?---I'm sorry, Your
Honour?
7It's relevant to the evidence you've given?---Thank you, Your 8
Honour.
9Continue, Mr Devries. 10MR DEVRIES:
I'm very frightened by what Your Honour's
11
associate has in front her.
I suspect it's something
12
that I'll have to read before the end of this matter.
13
looks awfully thick.
14
evidence you've just given is true and correct, then I
15
put to you it is impossible for you to have done all
16
those things that you said you did in respect to your
17
various properties.
18
do landscaping, picking up bits and pieces, painting,
19
cleaning, removing carpets, rendering and all that and I
20
put that to you?
21
available for you to do that?---I put it to you
22
Mr Devries that you are finally holding the telescope
23
with your eye to the eyepiece but you're still not seeing
24
the view out the other end.
It
(To witness) Mr Johnson, if the
You just would not have had time to
There's just not enough hours or days
25So the answer is you agree with me? 26HIS HONOUR: 27
He disagrees with you?---Most emphatically, but I
am flattered that there is - - -
28I am not interested in you being flattered, you have answered a 29
question, just stay with that?---Thank you, Your Honour.
30MR DEVRIES: 31
Most of these properties that you say that you
worked on are some distance from where your place of work
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DISCUSSION
1
was, weren't they?---Bearing in mind, Mr Devries, I'm
2
saying there wasn't much work done on the properties that
3
wasn't done by persons in my paid employment.
4
persons independent of Ms Cressy, commercially
5
obtainable.
Typically
6Would you just like to answer my question please, what is the 7
answer to my question Mr Johnson?---Thank you, I believe
8
I was answering it first - - -
9HIS HONOUR: 10MR DEVRIES:
Repeat the question again. I asked you whether the bulk of the properties you
11
said that you worked on were located some distance from
12
your main place of work, being the centre of the city;
13
the answer is either yes they are or no they're not?
14
---The addresses are in evidence and they are not
15
contested.
16
some distance away or not.
17HIS HONOUR:
It's a question of judgment whether they are
You were working in the city?---Yes, Your Honour.
18And these properties are located Hoppers Crossing, Point Cook 19
and Altona.
20MR DEVRIES:
Torquay, Grovedale?---Well, I deny anything to do
21
with Grovedale.
Torquay was as of - when I moved in as a
22
tenant in September last year, so that's not the relevant
23
period.
24
rip up some stringy carpets.
I did very little at Altona except assisting to
25Sorry, what has that got to do with the distance, that was the 26
question you were asked?
27HIS HONOUR:
I think the witness has answered, the distance
28
does speak for itself.
29
witness is working the large hours that he claims to have
30
worked, he was looking after his children, that he would
31
not have had time to carry out the work, particularly
1.:CS 10/12/08 2Cressy
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What you were putting to the
301
DISCUSSION
1
given that it was at locations that were not close to the
2
premises at which he was working and saying he was
3
living, and that is the proposition put to you Mr
4
Johnson, do you agree with it or disagree with it?---I'm
5
saying that there was very little work done to the
6
properties, other than by people in my employment.
7
very little work because very little work needed doing.
8Thank you. 9 10
I did
So you did very little physical work on any of
those properties?---Very little physical work was done, Your Honour, by anybody.
11MR DEVRIES:
I put to you that my client has given very
12
explicit and detailed evidence of the work that she has
13
done on the various properties and I put to you that her
14
account is true and correct of the work she did on those
15
properties?---I believe that the evidence she has given
16
is correct as to the description of the work, but her
17
evidence as to the volume of the work is exaggerated and
18
her evidence as to the funding arrangements is totally
19
wrong, all moneys I either provided to her or I may
20
reimburse smaller bits later.
21
did the work is also misrepresented by the plaintiff.
22
These were job creation schemes to give her some money
23
and some interest.
24
she was in my employment receiving my payslips.
25
witness has misrepresented the character in which I paid
26
her by saying she did office work.
27
not an office worker and I don't mean any criticism by
28
that.
The character in which she
The bulk of the work was done whilst The
Your Honour, she is
29That has got nothing to do with - - 30HIS HONOUR: 31
No, that's not part of the question Mr Devries has
asked you.
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DISCUSSION
1MR DEVRIES:
Thank you, Your Honour?---But most of it was in
2
that Donald Trump Apprentice type situation where I was
3
trying to get her interested in - give her an interest in
4
the property, teach her some of the facts of life.
5That's not answering my question - - 6HIS HONOUR:
Well, you did put a broad question and he has
7
answered it.
He has disagreed with the amount of work
8
that she did.
9
them because he reimbursed her and he is also saying that
He said that in fact she did not pay for
10
this was work done by your client in her capacity as a
11
paid employee of himself?---And one of the facts - - -
12MR DEVRIES: 13
I will come back to that in a moment, Your Honour.
Mr Johnson - - - ?---(Indistinct.)
14No, I am going to ask you - - - ?---In what other capacity Your 15
Honour?
16I am going to ask you my next question Mr Johnson. 17HIS HONOUR:
Just listen to the question Mr Johnson.
18MR DEVRIES:
On your account, apart from between 2003 and 2005
19
you didn't reside in the same premises as my client, is
20
that correct?---Yes, it's correct Mr Devries.
21Over all of that period of time, whether you include the time 22
you were living with her or not you were working
23
extremely lengthy hours, is that correct?
24HIS HONOUR: 25
Well, he has already answered that obviously?
---Yes, yes, obviously.
26MR DEVRIES:
I put it to you either on your account that you
27
didn't live with her very much, if at all, or that you
28
were working long hours or a combination of both there is
29
no way you could have given the evidence to His Honour
30
from your own observations of what my client did during
31
the day, the things that you say she did and the things
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DISCUSSION
1
you said she didn't do because you just weren't there to
2
observe, you couldn’t have been there to observe; do you
3
agree or disagree?---I totally disagree and I can give
4
detailed answer to that question either now or in re-
5
examination as Mr Devries or Your Honour wish.
6Your Honour, could I have a look for a moment at Exhibit 43? 7HIS HONOUR:
Yes.
8MR DEVRIES:
Do you have a copy of my client's pay slips that
9
you handed up yesterday, Mr Johnson?---I don't Mr Devries
10
but I probably don't need one, if I do during the
11
question I will ask for one.
12So the answer is no?---No, Mr Devries. 13Now, on many of these documents it says things like, "Paid 500, 14
retained 4000" – I'll take you to the specific ones?
15
---Yes.
16I'm having trouble reading a year to date, Your Honour, which 17
says, "200, 50, 304".
18
20 May in the 03/04 financial year?---It's an accounting
19
– American convention - - -
20HIS HONOUR: 21
I presume that's year to date to
What does it mean?---2005 is the year, 03 is the
month, 04 is the day.
22MR DEVRIES:
OK, the year to date to 3 April 2004 you paid $500
23
and you retained 2400.
Why did you retain her income?
24
---That would have been a period where my cash flow was
25
tight because I had the brunt of the tax debt and an
26
instalment plan.
27
stage - - -
Gibson Street hadn't settled at that
28So the answer is you were short of money to pay her over that 29
period of time?---That is part of the answer, Mr Devries.
30And up to 17 June 2005 you retained a total of $5000?---That 31
sounds familiar.
1.:CS 10/12/08 2Cressy
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What was that date, Mr Devries? 304
DISCUSSION
117 June 2005?---Thank you, Mr Devries. 2Is that correct?---That – that coincides with my memory, 3
Mr Devries.
4And you also withheld, from time to time, superannuation from 5
her payment, did you?---Ms Cressy was on an hourly rate,
6
I think, of $25 - - -
7So is the answer yes or no that you retained superannuation? 8
---Not retained, but - - -
9Did you pay - - - ?---The 9 per cent super guarantee, yes, I 10
did.
11You did?---Yes. 12Who did you pay that superannuation to?---I put that into a 13
self-managed superannuation fund that I established.
14And where is that money now?---600 Bourke Street, Melbourne, 15
ANZ Bank, Mr Devries.
16And how much is standing to her account in that super fund? 17
---There would have been no contributions to that fund
18
since - - -
19How much is currently standing to her account in that 20
superannuation fund, Mr Johnson?---I don't know, because
21
those bank statements were stolen – unlawfully taken from
22
my house.
23You are the – I presume you are the trustee or the director of 24
the trustee of that superannuation fund?---I am one of
25
two trustees, Mr Devries.
26And you've got access to that bank account any time you like, 27
and you can just roll up to the bank, or any branch of
28
that bank, and say "Can you give me the current account
29
figure, current balance", can't you?---I could do that,
30
as could your client, Mr Devries.
31Is she a trustee of the - - - ?---Yes, she is, Mr Devries. 1.:CS 10/12/08 2Cressy
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DISCUSSION
1Well, she's totally unaware of being a - - 2HIS HONOUR: 3
Well, you live and learn, Mr Devries.
Is this
relevant to this case?
4MR DEVRIES:
Well it is a financial resource which - - -
5HIS HONOUR:
If you want to finish this case this week let's go
6
for the – down the middle.
7MR DEVRIES:
I'm on the downhill - - -
8HIS HONOUR:
Often how premierships are won; straight down the
9
middle, particularly in 2008.
Now, let's keep going.
10MR DEVRIES:
My team doesn't win premierships, Your Honour.
11HIS HONOUR:
Yes, well you - - -
12MR DEVRIES:
That's why.
13WITNESS:
I believe the dollars involved are under 2000.
14MR DEVRIES:
And what about your own superannuation?
How much
15
do you have?---My superannuation – I have no idea,
16
particularly with the global financial crisis, and I
17
would ask the relevance.
18Approximately how much do you have?---Twelve months ago, I 19
guess, across several funds, perhaps about 80,000.
20
have made no contributions for perhaps five years, except
21
to get minimally the benefits I have a - - -
22HIS HONOUR:
I
Mr Johnson, you were asked a simple question.
You
23
say 12 months ago your understanding is your balance of
24
your superannuation funds was $80,000?---Yes.
25All right?---And since the global financial crisis - - 26I know what has happened in the economy, you don't need to keep 27
repeating it.
28MR DEVRIES:
Now, Mr Johnson, you gave evidence about payments
29
that you claim that you made towards my client's
30
household and I'm going to suggest to you that the same
31
dollar seems to have been represented by you over and
1.:CS 10/12/08 2Cressy
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DISCUSSION
1
over again.
You claimed to the Child Support Agency that
2
you've made non-agency payments to my client and
3
therefore that should be treated as being in lieu of
4
statutory child support payments, is that correct?
5
---Mr Devries, my name is not Pippin, this is not without
6
expectations, I only apply every dollar once, not to
7
three persons - - -
8Would you now like to answer my question?---Excuse me? 9Would you like to answer the question (indistinct) making a 10
statement?---Charles Dickens was talking about - - -
11HIS HONOUR:
Mr Johnson, that sort of answer gets you nowhere
12
in front of me.
13
playing games and behave yourself.
14
Mr Devries?
15MR DEVRIES:
Now, you're an intelligent man, stop
May it please, Your Honour.
Ask the question,
(To witness) You
16
stated to His Honour, in fact you handed up an exhibit
17
which showed non-agency payments that you had made to my
18
client, that was in a document you provided to the Child
19
Support Agency – a copy of the document you provided to
20
the Child Support Agency.
Do you remember that?---Yes.
21And the reason you put that forward was that you wanted the 22
Child Support Agency to take account of your non-agency
23
payments in lieu of child support that you would
24
otherwise have to pay.
Is that correct?---Yes.
25Yes, so you had an obligation to pay child support and you paid 26
that by way of those non-agency payments that you listed
27
in that exhibit; is that correct?---I believe I have
28
always had an obligation to pay child support payments
29
for Illyana since her birth, yes, the answer is correct.
30In fact you paid child support for the three children for a 31
while, didn't you?---You could say four children if you
1.:CS 10/12/08 2Cressy
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DISCUSSION
1
were that indiscreet regarding Ms Cressy Junior.
2
a bundle of money for a family purpose.
I paid
3Why did you have to make that gratuitous, insulting comment? 4HIS HONOUR:
Let's just stick to the point.
5MR DEVRIES:
Sorry, Your Honour.
6HIS HONOUR:
I'm aware of some of the remarks he has made, they
7
do him no credit.
8MR DEVRIES: 9
You paid child support for a period of time for
all three Cressy children, didn't you?---Yes, in the
10
early days it was managed by the Child Support Agency.
11
From 2003 onwards it was not managed by the Child Support
12
Agency.
13
Support Agency managed again.
In I think October/November 2007 it became Child
14For what period of time did you make payments either to the 15
Child Support Agency or otherwise for child support in
16
respect of all three Cressy children?---There's a number
17
of steps in that question.
18
answer, Your Honour.
19HIS HONOUR:
I want to be helpful with the
Well, be?---Thank you, thank you.
I would give
20
Ms Cressy money and then when non-Agency benefits
21
including the house to live in - - -
22MR DEVRIES:
Just cover the - tell us the period of time that
23
you claim that you made payments either directly to my
24
client or to the Child Support Agency by way of child
25
support or in lieu of child support for the three Cressy
26
children.
27
to know how much.
28HIS HONOUR:
I don't need to know the details, I don't need
Just the period of time?---I only ever got letters
29
from the Child Support Agency requiring me to make
30
payments in respect of Illyana.
31
would have been after June, before Christmas 2000.
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308
The earliest occasion
DISCUSSION
1So the answer is you have never made Child Support payments 2
directly to the Child Support Agency or indirectly to my
3
client in lieu of payments to the Child Support Agency
4
for Treece and Skye, is that what you're now saying?
5
---There's a few steps in the question.
6HIS HONOUR:
No, there's no steps, they're very straightforward
7
questions.
8
or not?---Forgive me, can I hear the question again?
9MR DEVRIES:
Is that a correct statement of the position
You are only playing for time, Mr Johnson.
Is
10
your evidence now that you have never - I will break it
11
up to two, make it simple for you?---Thank you,
12
Mr Devries.
13Is your evidence now that you have never made any payments to 14
the Child Support Agency for child support on account of
15
either Treece or Skye Cressy?---I've never been required
16
by the Child Support Agency - - -
17HIS HONOUR: 18
Have you ever paid them?---And I've never paid
them.
19Thank you, now that is a very simple question?---Yes, nice and 20
simple.
21Mr Devries. 22MR DEVRIES:
And you have never made any payments to my client
23
therefore directly to her in lieu of any child support
24
payments due to the Child Support Agency in respect of
25
either Treece or Skye?
26HIS HONOUR: 27
Is that statement correct?---That's a repeat of
the principal question.
28No, it is not.
Is that statement correct?---I've never - - -
29MR DEVRIES:
Do I need to repeat the statement?
30HIS HONOUR:
Repeat the question once more.
31MR DEVRIES:
I suggest you don't write, you can do one thing at
1.:CS 10/12/08 2Cressy
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DISCUSSION
1
a time, either listen or write, you can't do both
2
Mr Johnson.
3HIS HONOUR:
Just put the question again please.
4MR DEVRIES:
I'm sorry, Your Honour, but having to repeat
5
myself is - - -
6HIS HONOUR:
What are you putting to him.
7MR DEVRIES:
Is your evidence that you have never made any
8
payments directly to my client in lieu of any payments
9
required to be made to the Child Support Agency for child
10
support in respect of either Treece or Skye or both of
11
them?---My evidence is that I have never had a legal
12
obligation to make any child support payments either
13
directly to Ms Cressy or to the Child Support Agency for
14
either of those boys.
15HIS HONOUR: 16
And you have never made any such payments?---I've
made gifts without legal obligation Your Honour.
17But not Child Support payments?---I've made gifts for the 18
purposes of the children but they don't have to then be
19
taken as a Child Support obligation, I'm not their
20
biological dad.
21All right.
Mr Devries.
22MR DEVRIES:
Your Honour - - -
23HIS HONOUR:
Exhibit 18.
24MR DEVRIES:
I am indebted to Your Honour.
I have trouble with
25
reading my handwriting Your Honour.
So all these
26
payments are post what my client (indistinct) is that
27
right?
28
---Clearly yes, Mr Devries.
This covers 1 October 2000 to 27 February 2008?
29Yes, did you make similar claims for non-agency payments prior 30
to that time?---No, because there was no need to,
31
Mr Devries.
1.:CS 10/12/08 2Cressy
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310
DISCUSSION
1The Lisa Court lease to Gail Cressy has been used by you to 2
prove the lease payments on various of your loan
3
applications, would you agree with that?---Yes.
4And your evidence is that the lease does not accurately reflect 5
the payments that you actually received from Ms Gail
6
Cressy?---That's my evidence and Gail Cressy's evidence
7
also, Mr Devries.
8But you're quite happy to hold out to various lenders that she 9
actually paid you the full amount of the lease payments?
10HIS HONOUR:
What's your answer to that?---I've never held out
11
to lenders that she paid the full lease payments.
12
The - - -
13MR DEVRIES: 14
Never - - -?---- - - always record the actual - -
-
15You never said - you handed up the lease payments, you handed 16
up copies of the lease, you never said in any documents,
17
"But I'm not getting the full amount of this lease
18
payment", did you?---That would have been - - -
19You didn't, did you?---- - - obsessed with detail, Mr Devries. 20
No, I didn't qualify - - -
21But that's easy - - -?---- - - in the applications, no. 22Now, you claim that my client failed to return to you boxes of 23
documents that have been stored at her premises, is that
24
correct?---Yes.
25And those documents - - -?---Sorry, not correct as regards to 26
Exhibit 1, Mr Devries, but in respect of 39/40, those
27
documents, yes, correct.
28So how many boxes of documents do you say she withheld?---The 29
documents described by her counsel, Mr Richard
30
Ingleby - - -
31No, no, just - I'll ask you the question - - 1.:CS 10/12/08 2Cressy
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311
DISCUSSION
1HIS HONOUR:
Just give a straight answer, this is doing your
2
credit no good?---I answered that in my previous
3
question, I think that there were about 40 such folders
4
all up - - -
5Right. 6MR DEVRIES:
How many boxes did they comprise?---I can't even
7
put my hand on my heart and say they were in boxes,
8
Mr Devries.
9
thrown into sturdy garbage bags.
They may have been loose, they may have been
10Exhibit 1 is the blue plastic folder of documents relating to 11
7 Inverloch Drive, is that correct?---My original
12
purchase of that property, yes.
13And there would have been, you say, a similar folder, different 14
colour, in respect of each of other six or seven
15
properties?---Multiple folders, because there was
16
construction contracts, there were several layers of
17
financing, there were draw downs.
18
listed in one folder, most of them would take six, seven,
19
eight folders.
This was the only one
20Are you suggesting, are you, that there were eight or nine 21
folders for each property of that thickness of that one?
22
---Yes, exactly, yes.
23Have you been to the Federal Magistrates' Court to inspect the 24
documents that were delivered by the - documents and
25
other items delivered by the Victoria Police to the
26
Federal Magistrates' Court under subpoena?---Yes.
27Have you done an inventory of what they have?---No, I've had a 28
quick glance.
29Only a quick glance? 30
They were released for you to inspect and
to photocopy, weren't they?---Yes.
31And in addition to documents, there were two mobile telephones, 1.:CS 10/12/08 2Cressy
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312
DISCUSSION
1
is that correct?---Yes.
2And you had a look at those at the Federal Magistrates' Court? 3
---Yes, and briefly at the Werribee Police Station.
4I'm only asking about the Federal Magistrates' Court, and you 5
have no reason to believe, have you, that those documents
6
still are not there?---I made an appointment on Friday
7
before court to see them, and based on that, the
8
gentleman (indistinct) said come back Friday morning and
9
you can look at them then.
I did that after court on
10
Thursday, if he'd wheeled out the boxes, I would have
11
only had ten minutes to look at them.
12
appointment because of other priorities on the Friday
13
morning.
I didn't keep that
14So the answer to my question is you have no reason to believe 15
that those documents still aren't in the safe custody of
16
the Federal Magistrates' Court of Australia?---This is a
17
totally different set of mysteriously missing documents,
18
as I explained in my evidence-in-chief.
19The documents that were delivered up until subpoena I'm asking 20
you about, you have no reason to believe that they're
21
still not within the - - -
22HIS HONOUR:
Well, he hasn't said - he has not said otherwise.
23MR DEVRIES:
Yes?---Your Honour, the plaintiff said in her
24
evidence - - -
25HIS HONOUR:
Mr Johnson, I have already made the appropriate
26
response, you will just listen to the next question and
27
we will try to finish this cross-examination shortly, I
28
would hope?---Defence counsel wishes to interrupt and say
29
Mr Devries is confusing the two different sets of
30
Mr - - -
31Defence counsel's out of order. 1.:CS 10/12/08 2Cressy
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Mr Devries?
313
DISCUSSION
1MR DEVRIES:
Your Honour, there is a very large bundle of
2
documents which were tendered which are original
3
documents.
4HIS HONOUR: 5
And if you want an exhibit, ask for it.
Mr Richards has got them very well organised.
6MR DEVRIES: 7
Yes, unfortunately, there's a gap in my list of
exhibits, Your Honour.
8HIS HONOUR:
What were they?
9MR DEVRIES:
These were documents that were attached to an
10
affidavit of documents prepared by my current
11
instructors, Berry Family Law.
12
yes, that looks like them, Your Honour.
13HIS HONOUR:
Yes.
It's in - they were –
There's a letter of Berry Family Law to the
14
defendant dated 9 April 2008 with attached documents.
15
that what you're looking for?
16MR DEVRIES:
That's Exhibit 21.
I think it is, Your Honour.
17
one moment, Your Honour.
18
Honour, which is identical to this.
19
documents.
20WITNESS:
Is
Just bear with me for
There is another bundle, Your They were original
Exhibit 20 may assist you.
21HIS HONOUR:
Is it 20, the letter of Harwood Andrews to the
22
defendant of 11 March with copy affidavit of the
23
plaintiff sworn that date and a bundle of documents?
24
That's Exhibit 20.
25MR DEVRIES:
Thank you.
I'm indebted to Your Honour.
(To
26
witness) Now, Mr Johnson, you've had these since March
27
this year.
Is that correct?---Yes.
28They're identical to the documents that are in Exhibit 21, 29
except that these are originals and Exhibits 21 are
30
photocopies?---As I said in evidence-in-chief I didn't
31
page – to check a hundred per cent correlation but, yes,
1.:CS 10/12/08 2Cressy
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314
DISCUSSION
1
I believe by a quick turning of the pages there is – that
2
they are.
3You tendered Exhibit 21 on the basis that it was identical to 4
this exhibit?---Yes.
5So I'm putting to you, Mr Johnson, that since at least March 6
this year if you chose to you had access to all
7
documents, and the two mobile phones that my client says
8
she had in her possession being – well, that she said she
9
had in your possession.
10 11No.
no.
Do you agree with that?---No,
Mr Devries, you're confusing the two sets of - - -
Leaving aside the documents that you say that she hasn't
12
returned, the ones that she's fessed up to having have
13
all been returned to you haven't they?
14
made available to you.
15
or been available for you to inspect either at the police
16
station or later at the Federal Magistrates' Court?
17
---No, that's clearly not correct.
Have all been
Either returned to you in March
18In what way is it not correct, Mr Johnson? 19HIS HONOUR:
I think there's a confusion in the question, is
20
there not, because as I understand it is that Mr Johnson
21
said in his evidence-in-chief that he has inspected the
22
documents which the police recovered from your clients,
23
and they only recovered 70 per cent of the documents that
24
were missing?
25MR DEVRIES:
What I'm putting to - - -
26HIS HONOUR:
Your clients also made available other documents
27
on 11 March?
28WITNESS:
Yes, 2008.
29MR DEVRIES:
What I'm putting, Your Honour, is that he's had –
30
the 70 per cent that Mr Johnson says that she's fessed up
31
to having - - -
1.:CS 10/12/08 2Cressy
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315
DISCUSSION
1HIS HONOUR:
Which the police took possession of.
2MR DEVRIES:
Which the police took possession of.
3
with those he's had ready access to.
4
putting to him.
Together
That's what I'm
5HIS HONOUR:
That's self evident.
6MR DEVRIES:
You've heard my client's denial that she's
7
retained any other documents of yours, apart from
8
documents relating to your registration as a prostitute.
9
You've heard that evidence haven't you?---There are
10
multiple prongs.
11
latitude, Your Honour?
12HIS HONOUR:
May I respond with a little bit of
Not latitude but you may respond?---OK.
The
13
documents that are held and were subpoenaed off the
14
police were 70 per cent of the documents taken from my
15
home, which at that point was Dorrington Street, Point
16
Cook where I lived alone in November 2007.
17
had as much access to those documents as I have had, ever
18
since they - - -
19HIS HONOUR:
Ms Cressy has
Her access is not the point?---Thank you, Your
20
Honour.
Thank you, Your Honour.
21
evidence that my three or four boxes of documents stayed
22
in my storage shed at Altona, which I had no access to up
23
until March 2008 - - -
24MR DEVRIES:
Ms Cressy admitted in
This is a submission, Your Honour.
25
answer.
This is not evidence.
26
Your Honour - - -
This is not an
This is a submission,
27HIS HONOUR:
You're referring to Ms Cressy's - - -?---In March
28
2008.
It's separate documents.
29
given that folder but the other 39 folders - - -
In March 2008 I was
30That's Exhibit 1?---The other 39 folders for the other 31
properties – Ms Cressy's claim is that she did give them
1.:CS 10/12/08 2Cressy
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316
DISCUSSION
1
to me.
2
and that I had to go to my mortgage broker to reproduce
3
what I could.
4
not dealt with for years, but that was prohibitively
5
expensive.
6
documents, Your Honour.
7
for - - -
8MR DEVRIES:
My claim to use true words is that she did not,
9
I could've gone to the builders who I've
That's the issue.
They're different missing
All of the original construction
Honour.
I'll break up my question into categories, Your (To witness) You've had the documents that
10
compromise Exhibit 20 since 11 March 2008.
Is that
11
correct?---Sorry, since what date, Mr Devries?
12Please try and concentrate on the questions I'm asking you, 13
instead of distracting yourself by looking at bits of
14
paper.
15
date of the letter.
16
possession that comprise Exhibit 20?---As has the
17
predecessors to your instructor, Mr Devries, yes.
Since March this year.
I think 11 March was the
You've had those documents in your
18You've had access to all of the documents that my client 19
delivered up to the police, whilst they've been in the
20
police custody or in the Federal Magistrates' Court.
21
that correct?---There's third parties involved.
22
believe so but the Exhibit 20 materials don't fall into
23
that category of documents anyway.
24
hand those to the police, Mr Hanlon handed them to me
25
minutes before we appeared before Justice Whelan.
Is
I
Ms Cressy did not
26I'm talking about - - 27HIS HONOUR:
You've had access to inspect documents at the
28
Federal Magistrates' Court which were lodged there by the
29
police, pursuant to the subpoena, and issued to them,
30
right?---Yes, the same access as - - -
31And you also have told us today that you had also had access to 1.:CS 10/12/08 2Cressy
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317
DISCUSSION
1
those documents while they were still in the possession
2
of the Werribee Police?---I was allowed to visit the
3
documents to see how much had been recovered.
4Right, thank you?---For about less than five minutes, Your 5
Honour.
6Mr Devries? 7MR DEVRIES:
And you could have gone at any time to the Federal
8
Magistrates Court, once they had been released, for
9
inspection, and you could have photocopied and/or
10
inspected them at your leisure, that's correct too?---As
11
could your instructor, Mr Devries.
12HIS HONOUR:
There's a (indistinct) answer contained in that.
13MR DEVRIES:
Yes?---Thank you, Your Honour.
14And pursuant to orders of this honourable court, you went along 15
to my client's premises and picked up a large number of
16
boxes of documents and bags of documents and folders of
17
documents, including Exhibit 1, is that correct?---I went
18
to 166 Queens Street, Altona, for that purpose, yes.
19You drove away with a carload full of documents, including 20
documents in the front passenger seat of your vehicle, is
21
that correct?---I filled up with my car with what was
22
offered to me, but not everything was offered to me,
23
Mr Devries.
24Everything that was there at the front gate you took with you, 25
is that correct?---Of course I did, but not everything
26
was there where it was supposed to be.
27
those folders, roughly, were missing, they were not
28
provided.
Thirty-nine of
29Did I ask you anything about those 39 folders, Mr Johnson? 30
didn't, did I?---You were asking me about a class of
31
documents.
1.:CS 10/12/08 2Cressy
FTR:1
318
I
DISCUSSION
1No, I'm not asking you about a class of documents.
I asked
2
you, Mr Johnson, whether all of the documents that my
3
client stacked near the front gate of her premises were
4
taken away by you?
5HIS HONOUR:
He's answered yes.
6MR DEVRIES:
He has, and I put to you - well, you've heard my
7
client's evidence, haven't you, that there were no other
8
documents retained by her, save for those that comprised
9
Exhibit 20 and save for those that ended up with the
10
police and the Federal Magistrates' Court, haven't you?
11HIS HONOUR: 12
Your answer to that - - -?---The Police
Magistrates' Court - - -
13- - - you say that she didn't return 39 folders?---Yes, Your 14
Honour.
15Right, well, now we've - - -?---Yes. 16MR DEVRIES: 17
And you understand that it's - that she denies
emphatically that she retained any of those 39 folders?
18HIS HONOUR:
Well, his understanding's irrelevant.
19MR DEVRIES:
Yes?---We've - I've had this issue several
20
times - - -
21HIS HONOUR:
Just a moment?---- - - in this court, Your Honour.
22I've objected to the question. 23MR DEVRIES:
I put to you, Mr Johnson, that she never retained
24
any of those 39 folders, and that her evidence on that is
25
correct.
26HIS HONOUR: 27
What do you say to that?
Do you disagree with it
or agree with it?---I totally disagree.
28That's enough?---Thank you. 29MR DEVRIES:
In the course of your evidence, you've gone out of
30
your way to tell His Honour how generous you've been to
31
my client, her children, including your child Illyana,
1.:CS 10/12/08 2Cressy
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319
DISCUSSION
1
her mother, and her mother's children, that's correct,
2
isn't it?---Yes, Mr Devries.
3And I put to you that you would only do that for as long as you 4
did, and in the way that you say that you did, if you
5
were part of a family, that's correct, isn't it?---That
6
is not correct, but many people are putting exactly that
7
to me, Mr Devries.
8
girl, and for her siblings - - -
My generosity, my love for my little
9Sorry, you've answered my question, Mr Johnson?---Have I 10
answered it, is this - - -
11HIS HONOUR:
Well, you can shortly add to that.
You say that
12
it's not because they were (indistinct) because they
13
loved your daughter, Illyana, and you also loved her
14
siblings, is that right?---And you couldn't nourish one
15
without nourishing the others, yes, Your Honour.
16Right, thank you. 17MR DEVRIES:
You say that you loved Illyana and you did all
18
these things for your love of Illyana, but over and over
19
again, in the Federal Magistrates' Court proceedings, and
20
occasionally in these proceedings, you disputed in a very
21
nasty way paternity of Illyana, isn't that correct?---No,
22
it's not correct, and there's multiple levels to that
23
question, Mr Devries.
24You, at one stage, said that there was a less than five per 25
cent chance that she was your child, do you recall
26
deposing to that?---Scientifically, that's correct.
27And you'd oppose to the fact that you thought that other - that 28
clients of my client were more likely to be Illyana's
29
father than yourself?
30
didn't you?---I deposed to the effect that if a woman has
31
sex with 20 men in one week and falls pregnant, conceives
1.:CS 10/12/08 2Cressy
FTR:1
You depose that from time to time,
320
DISCUSSION
1
during the week, the odds must be, in the absence of any
2
other information, one in 20 of any one of those
3
particular men being the biological father.
4That was your stance right through the Federal Magistrates' 5
Court proceedings until the second last time you appeared
6
before Federal Magistrate O'Dwyer, wasn't it?
7
---Mr Devries, I've never been caught up on the biology
8
of it, but I would like to know one day whether Illyana's
9
resemblance to me is by nature or by nurture.
10
It's never
been a top priority for me.
11Well, you conceded to Federal Magistrate O'Dwyer that she was 12
your child, you conceded to His Honour that she's your
13
child, you flashed and emphasised over and over again a
14
photograph as if she was your child - - -
15HIS HONOUR:
Is this relevant, whether she - this issue of
16
paternity or not?---It's never been relevant to me, Your
17
Honour, with the greatest of respect.
18Mr Johnson, I don't want your comments, I'm raising a matter 19
with counsel.
20MR DEVRIES:
I am only putting it to him, in the context that
21
he says his evidence is that his generosity to my client,
22
my client's (indistinct) was born out of his love of
23
Illyana.
24HIS HONOUR: 25
And you say that's contradicted by the fact that
he's put Illyana's paternity in issue?
26MR DEVRIES:
And still does, Your Honour, yes.
27HIS HONOUR:
Well, I think you've established the fact that
28
he's put paternity in issue.
29MR DEVRIES:
Now, your evidence concerning your property
30
acquisitions was that they were all highly geared, the
31
purchase of each property was highly geared, is that
1.:CS 10/12/08 2Cressy
FTR:1
321
DISCUSSION
1
correct?---Yes.
2Between about 90 per cent and I think you said 116 per cent, is 3
that correct?---No, and the question is too broad,
4
Mr Devries, for a sensible answer.
5So you're saying you can't answer the question, is that right? 6
---Not in using my favourite word "yes" or my least
7
favourite word "no", I can't answer that question.
8
happy to explain in a little bit of detail and go over my
9
evidence-in-chief if that would assist Mr Devries.
I am
10No, no, don't keep making invitations to me to ask you 11
questions, Mr Johnson, because it's a waste of your
12
breath.
13
is that correct?
14
highly geared?---It is a trade off between minimising my
15
cash investments.
They were all very heavily geared weren't they, Each property when you purchased it was
16Can you answer simply "yes" or - - 17HIS HONOUR:
He didn't ask you the reason.
The fact is, and I
18
think you have already said this, that when you purchased
19
them they were heavily geared and indeed a number of the
20
properties you say you never put any cash into the
21
purchase at all?---The AMP loans - - -
22Is that right?---In a few words, Your Honour, the AMP loans 23
were done at 80 per cent bank finance because that was an
24
easy process for the bank, 20 per cent equities, I
25
described that in evidence-in-chief.
26
Caulfield because of the almost year delay in the - - -
Gibson Street,
27100 per cent finance?---It worked out because the value shot 28
through the roof.
29You've told us that already?---For the others the borrowing was 30
the max that I could do which the Altona was 90 per cent,
31
yes, and look, the original financing of Inverloch was
1.:CS 10/12/08 2Cressy
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322
DISCUSSION
1
only 80 per cent debt finance.
2
original finance ratio was for Point Cook but it would
3
have been pretty skinny on the equity.
4
would let me do.
5MR DEVRIES:
I'm not sure what the
Whatever the bank
Mr Ioannou has given evidence about that
6
but - - -?---Mr Ioannou wasn't involved at that meeting
7
when I purchased.
8But effectively whether it's 80 per cent, 90 per cent or the 9
116 per cent at one stage you gave evidence of, they were
10
all heavily geared, that's correct isn't it?
11
difficult to answer that question?---I've given the
12
details, so I'll give a "yes" answer to that.
13Thank you.
Is it
You also gave evidence that as you got equity in
14
the properties you accessed that equity to buy more
15
properties or to finance the purchase of more properties,
16
do you recall giving that evidence?---And to retire debt,
17
some more expensive debt Mr Devries, yes.
18So you kept each of those properties at the maximum gearing 19
that you could manage?---Yes, for a lot of benefits too.
20You got taxation benefits out of negatively gearing those 21
properties?---Those that were rented out, yes.
Those
22
that were made available for people to live in for free,
23
no.
24Everything went all right about the middle of last year, is 25
that correct?---There were two melting points.
26
financial situation - - -
First my
27Just tell us when the melting points occurred?---Shortly after 28
Christmas 2007, crystallised fully around about just
29
before Easter '07.
30
Primelife Corporation.
31
relations between Ms Cressy and I which were - I can
1.:CS 10/12/08 2Cressy
FTR:1
That was on my financial flows, The other melting point was the
323
DISCUSSION
1
point, the Thursday after Easter 2007.
2So everything suddenly - sorry, the house of cards that you had 3
erected started to come tumbling down when my client and
4
you had what she says is the final separation in you say
5
a week after Easter 2007, she says a little bit later
6
on?---I deny the house of cards.
7
as to timing in answer to the previous question.
I stand by what I said
8I am suggesting to you that you had erected a very delicate 9
house of cards with all of these property transactions,
10
and you don't agree with that?---My response is that I
11
was income streaming, a person of high net income but low
12
net worth as I had been for most of my life.
13It all came asunder when my client separated from you between a 14
week after Easter and May or June 2007, that's correct
15
isn't it?---There's an assumption in there, Mr Devries,
16
the timing is as I've just answered to the previous
17
question and coming undone actually occurred a bit later.
18I put to you the reason that it all came apart was that the 19
card that was constituted by her input into the
20
relationship, which you have described it being between
21
$2000 and $3000 per week was pulled out of your financial
22
matrix?---Sorry, I don't follow that question in the
23
least bit.
24HIS HONOUR:
No, I don't understand that question either.
25MR DEVRIES:
I will put it again Your Honour.
26HIS HONOUR:
Make it specific yes.
27MR DEVRIES:
The card comprising her income.
28HIS HONOUR:
Right?---Perhaps it's the card with the joker on
29
What card is that?
it, Your Honour.
30MR DEVRIES:
Perhaps, Your Honour, I won't use an analogy.
31HIS HONOUR:
We won't use metaphors.
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Let's put it directly. DISCUSSION
1MR DEVRIES:
Yes.
I am suggesting to you or putting to you,
2
Mr Johnson, that your financial situation as a whole was
3
at all times a very tight stressed situation, and that's
4
been your evidence to date?
5
fast and furious like the flow of the Amazon River but I
6
was in control of it, Mr Devries.
Is that correct?---It was
7Your evidence is redolent of statements such as, "Money was 8
tight.
Finances were tight.
I had to juggle here.
I
9
had to" – well, you didn't use the word, "Juggle", but,
10
"Things were tight", on many, many occasions you gave
11
that evidence.
12
Mr Johnson?---I recall explaining that my cash flow was
13
lumpy and there would be big items coming in.
14
example in January 2007 I banked over $120,000 in
15
Primelife that month.
Do you recall giving that evidence,
For
16Mr Johnson, perhaps you could just confine yourself to this 17
question?
You did in your evidence on days previous to
18
today say on many occasions that, "Money was very, very
19
tight", didn't you?---I said that there were hills and
20
there were valleys and there were Kosciuoskos.
21
2007 was a Kosciusko.
22
into my account because of the incredible hours I worked
23
in the November and December 2006 for Primelife
24
Corporation, and that's fully - - -
January
I banked over – had over $120,000
25Mr Johnson - - -?---- - -and exhibited, Mr Devries. 26Do you wish me to go through the transcript after lunch and 27
refer you to each of the occasions that you said that,
28
"Money was tight.
29
various things because you didn't have the cash flow.
30
you want me to do that?---I think you might put His
31
Honour and I to sleep, Mr Devries, if you attempt it.
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Cash was tight"?
325
You couldn't do Do
I
DISCUSSION
1
suggest you - - -
2HIS HONOUR:
Don't trouble with that but can I ask you this
3
though?
During the time and let's take it from 2003
4
until April 2007, were there periods when cash was tight
5
for you?---Yes.
6
and it would rain again, Your Honour.
Brief periods but then they would ease
7I follow?---Thank you. 8But did you have a number of those periods?---I've mentioned a 9
few of those periods this morning - - -
10You have.
So that we can work on the basis that during the
11
period I've nominated there were a number of periods when
12
cash was tight for you?---Yes, Your Honour.
13Mr Devries. 14MR DEVRIES: 15
Your Honour, can I leave it that?
I know that - - -
16HIS HONOUR: 17
It's getting –
We'll adjourn for lunch on that note.
I stand in
mortal fear of what's about to be handed to me.
18MR DEVRIES:
Just before we do that, Your Honour, and if I
19
could put the evil off for – if we could just borrow
20
Exhibit 45 over lunch - - -
21HIS HONOUR:
Yes, the - - -
22MR DEVRIES:
Please - - -
23HIS HONOUR:
Hang on just a moment.
24WITNESS: 25
I'm comfortable with that, Your Honour.
It's my tax
return - - -
26HIS HONOUR:
Would you believe 172 pages?
27MR DEVRIES:
It just exceeds the statement of claim against me
28
by 16 pages, Your Honour.
29HIS HONOUR:
No wonder it was a long gestation period.
30MR DEVRIES:
There were a number of issues in that case over
31
and above the domestic relationship, Your Honour.
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DISCUSSION
1HIS HONOUR: 2
It must be an 11 pounder.
Yes, I'm talking about
the judgment in - - -
3MR DEVRIES:
I understand that, Your Honour.
4HIS HONOUR:
I know we're all looking forward to reading it
5
with relish.
6WITNESS:
Thank you.
The - - -
I have a spare copy of the exhibit.
7HIS HONOUR:
Yes.
8MR DEVRIES:
I think we've got a copy of that.
9HIS HONOUR:
What do you want?
10MR DEVRIES: 11
No, sorry, we've got access to the one that we
heard over lunch.
12HIS HONOUR: 13
Mr Johnson? I would've thought hopefully 15 to 20 minutes,
Your Honour.
16HIS HONOUR: 17
We've got a copy.
How long will you be in cross-examination of
14MR DEVRIES: 15
You want access to - - -
Excellent.
Ms Sofroniou, how long do you think
you'll be?
18MS SOFRONIOU: 19HIS HONOUR:
Could be no time at all, Your Honour. If you're sure.
(To witness) Now, I do not expect
20
a long turgent re-examination?---I'm sorry, Your Honour.
21
I must apologise in advance.
22Don't apologise in advance.
That is an expectation of you, all
23
right, that you will be relevant in your re-examination.
24
That you'll address only issues that are of importance.
25
That you will not speechify, all right?---Your Honour,
26
the - - -
27That is a requirement?---Thank you, Your Honour. 28
best.
29
expectation as I've been saying - - -
The time that we've taken is matched by
30HIS HONOUR: 31
I shall do my
That is not the point.
Now, I think in order to
finish this case this week we will sit tomorrow and
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DISCUSSION
1
Friday at 9.30, if counsel can cope with that?---Most
2
certainly, Your Honour.
3MS SOFRONIOU:
I've been here earlier - - -
Yes, Your Honour.
4HIS HONOUR:
I expect this case to finish no later than Friday.
5MR DEVRIES:
It could take the whole Friday just to tell you
6
about - - -
7HIS HONOUR: 8WITNESS: 9
No, it won't.
Now - - -
It depends on my subpoena which I'll try to get done
during the lunch break for Mr Wittekind to - - -
10HIS HONOUR:
You get Mr Wittekind subpoenaed and I will abridge
11
all times.
If necessary he can be required to attend.
12
He's out at where?
Wheelers Hill?---Yes.
13He will attend at this court within two hours of subpoena. 14
Now, 9.30.
15WITNESS:
Sorry, ten past two.
Excuse me, Your Honour, in terms of the abridgment,
16
because this is all new to me, do I have to – or do your
17
staff have to let the registry people know that all - - -
18HIS HONOUR:
(Inaudible response.)
Look, at that over lunch
19
and I'll - - -?---I will do my best because Mr Thompson
20
will be here at 2.15 so I - - -
21HIS HONOUR:
Yes.
22<(THE WITNESS WITHDREW) 23LUNCHEON ADJOURNMENT
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DISCUSSION
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