Brothel Gate Day 9 Pm

1

(Kaye J)

2UPON RESUMING AT 2.18 P.M.: 3HIS HONOUR:

Now, it's been received at registry, there's some

4

documents subpoenaed by the plaintiff's solicitors from

5

the Trust Company Fiduciary Services Limited.

6MR DEVRIES:

That's one of the mortgagees, Your Honour.

7HIS HONOUR:

Do you seek access to those documents?

8MR DEVRIES:

I think I better, but it's probably too late, now,

9

Your Honour.

10HIS HONOUR: 11

Well, I'll certainly make them available to you

and to the other parties, subject to - - -

12MS SOFRONIOU: 13HIS HONOUR: 14

I would, Your Honour, I'd not seen any of the

materials in response.

17HIS HONOUR: 18

Each of you giving the appropriate undertaking.

Do you wish to look at them too, Mr Johnson?

15MR JOHNSON: 16

Thank you, Your Honour.

You would need to give to the court the

undertaking required - - -

19MR JOHNSON:

Most definitely, Your Honour.

20HIS HONOUR:

You better wait for it.

21MR JOHNSON:

I'm sorry.

22HIS HONOUR:

That - it's a formal undertaking that you will

23

return the documents to the court.

24MR JOHNSON:

Of course, Your Honour.

25HIS HONOUR:

Yes, thank you, and speaking of which, I'll

26

release them first to Mr Devries.

27

the Commonwealth Bank documents for two days.

28MR JOHNSON:

I understand you'd had

They've been sitting on my desk, but I wasn't

29

given an opportunity to see them at a quarter to ten on

30

the morning allotted, it was more like four minutes to

31

ten.

1.LL:SK 11/12/08 2Cressy

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DISCUSSION

1HIS HONOUR: 2

Well, when are you going to return them to the

court?

3MR JOHNSON:

I asked your tipstaff yesterday - - -

4HIS HONOUR:

I didn't ask what you'd asked - when are you going

5

to return them for the court?

6MR JOHNSON: 7

Honour.

8HIS HONOUR: 9

I've only had a minute to look at them, Your

That didn't really answer my question,

perhaps - - -

10MR JOHNSON:

I will return them now, Your Honour.

11HIS HONOUR:

Thank you very much.

12MR JOHNSON:

Thank you, Your Honour.

13

haven't been returned previously.

14HIS HONOUR: 15

Yes, unfortunately.

Now, have you issued your

subpoena?

16MR JOHNSON: 17

It's an oversight they

Your Honour, the subpoena has been issued, and it

is awaiting collection of the process server.

18HIS HONOUR:

Good.

19MR JOHNSON:

Hopefully we'll serve him tonight or in the

20

morning in time for 9.30 attendance.

21

instructions that - - -

I've given

22HIS HONOUR:

Morning will be too late.

23MR JOHNSON:

If it's 6.30 in the morning, it might be - - -

24HIS HONOUR:

I would think it'd be far too late, it would have

25

to be served tonight.

26MR JOHNSON:

The instructions are - - -

27HIS HONOUR:

That was on the basis on which you put to me it

28

would be served, and on the basis on which (indistinct)

29

times.

30MR JOHNSON: 31

I'll extend - I'll clarify those instructions with

the process server - - -

1.LL:SK 11/12/08 2Cressy

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DISCUSSION

1HIS HONOUR:

I think you'd better.

2MR JOHNSON:

I've also left instructions that Mr Cockram is to

3

be informed that I have taken the liberty of saying - to

4

be informed that he will be arrested if he doesn't turn

5

up.

6

matters that I wish to question - - -

He has previously been arrested in respect of the

7HIS HONOUR:

You can leave whatever instructions you like.

8MR JOHNSON:

Thank you, Your Honour.

9HIS HONOUR:

That actually is not legally correct.

Now, where

10

do you go from here?

11

Mr Cockram, hopefully he'll be called tomorrow morning,

12

Ms Sofroniou will not be able to do her no case

13

submission until - - -

14MS SOFRONIOU:

That's not a problem, Your Honour.

15HIS HONOUR: 16

So we're still waiting for

- - - the case is closed, so, Mr Devries, are you

in a position to do any part of your closing today, or?

17MR DEVRIES:

Unfortunately, I have to say yes, Your Honour.

18HIS HONOUR:

I don't force you to do it if it's not convenient,

19

but I just thought we could try to use some of the time.

20MR DEVRIES: 21

I'd be a hypocrite if I didn't try to use the

time, Your Honour, so I will.

22HIS HONOUR: 23

Well, see what you can do.

Even if you wish to

revisit your final address when we get to it.

24MR DEVRIES:

Your Honour, what I was proposing to do, given the

25

way we were doing it, was to - and this is more for the

26

benefit of Mr Johnson - - -

27HIS HONOUR: 28

I'm sorry, I did (indistinct) Mr Johnson one other

matter, Mr Devries, and I'm sorry, Mr Sofroniou.

29MS SOFRONIOU: 30HIS HONOUR: 31

Yes. Mr Johnson, have you - do you intend to seek leave

to amend your counterclaim against the 2nd/3rd defendants

1.LL:SK 11/12/08 2Cressy

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DISCUSSION

1

to the counterclaim?

2MR JOHNSON:

Thank you, Your Honour.

May I just say, and

3

obviously I don't mean this as any criticism whatsoever

4

of Your Honour, and shouldn't be taken that way, but the

5

conditions that you attached to my amending, my defence

6

in counterclaim at such short notice, partway through the

7

trial, I'm not suggesting anything was done wrong seven

8

days ago, I believe it was done right, I just wish that

9

the plaintiff, having been funded by her lawyers, into

10

hundreds of thousands of dollars of litigation against

11

me, I wish that the same conditions might have been

12

raised on them as a requirement, particularly as to

13

security of costs in amending their claim against me.

14HIS HONOUR: 15

Now, what is the answer to the question I put to

you?

16MR JOHNSON:

The answer is I can't - - -

17HIS HONOUR:

Do you seek - - -

18MR JOHNSON:

- - - make - - -

19HIS HONOUR:

- - -

no, just a moment, just give a straight

20

answer to this.

21

counterclaim?

22MR JOHNSON: 23

Do you seek leave to amend your

I'm shut out from doing so on several bases, Your

Honour.

24HIS HONOUR:

Do you seek leave to do it or not?

25MR JOHNSON:

In a word - - -

26HIS HONOUR:

You are not shut out, do you seek leave to do so

27

or not?

28MR JOHNSON: 29

explain further?

30HIS HONOUR: 31

In a one word answer, no, Your Honour, may I

No, you don't need to explain, I just simply ask

you a straight question, do you seek leave to amend your

1.LL:SK 11/12/08 2Cressy

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DISCUSSION

1

counterclaim, you don't, and I'll now here from

2

Mr Devries, so we don't have any more of this time

3

wasting.

4MR JOHNSON:

Thank you, Your Honour.

5HIS HONOUR:

Thank you.

6MR DEVRIES:

What I thought I would do is, for the benefit of

7

Mr Johnson, explain to him how I would have structured my

8

closing, so that he gets some idea for when he comes to

9

it, and then I was going to jump to the law side of it.

10HIS HONOUR:

Yes.

11MR DEVRIES:

What I would have originally done, Your Honour,

12

was to address Your Honour on the evidence.

13HIS HONOUR:

M'mm.

14MR DEVRIES:

And I would have started with the reasons why,

15

when there's a conflict in evidence, Your Honour should

16

have preferred the evidence of one witness as against the

17

other, one party's against the other.

18HIS HONOUR:

Yes.

19MR DEVRIES:

And I would have then proceeded to take Your

20

Honour to the factual findings that I'd be respectfully

21

urging Your Honour to make, and the basis for those

22

findings, and that would have been within the structure

23

of the proceedings before you, and then I would have

24

dealt with the law, then tied the two together.

25

have been - it may be argued that it would be better to

26

do the law first and the facts later, but that's the way

27

it's going to happen in any case, Your Honour.

28HIS HONOUR:

It may

What I think really would be helpful is, and - at

29

this stage, and I'm sure it would help Mr Johnson, is if

30

you were to outline, really, in broad form how you put

31

your claim as to (a) the domestic relationship, not so

1.LL:SK 11/12/08 2Cressy

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DISCUSSION

1

much an address on who to believe, but simply how you put

2

that claim, how you put your claim as to contributions,

3

again, in general form, you can come back to this in a

4

proper final address.

5MR DEVRIES:

Yes.

6HIS HONOUR:

What assets there are available and it maybe from

7

what I heard you say if this matter goes into February it

8

might be a blessing in disguise, because there may be

9

better clarity about it.

I don't know but it may be that

10

it's inevitable it'll go into February anyway at this

11

rate.

12

relation particularly to the Part 9 claim, and to a

13

lesser and also perhaps the principles that apply to your

14

claim for a constructive trust.

15

I'm in your hands but those issues would help.

16MR DEVRIES:

And then the principles you say that apply in

Now, does that assist?

I was going to do it more or less that way, Your

17

Honour, but I probably wouldn't have done it as

18

succinctly as that - - -

19HIS HONOUR:

They're the sort of matters that seem to me that

20

are going to be very difficult to call on Mr Johnson at

21

the close of evidence to start addressing, without him

22

having some idea as to how you're putting those matters.

23

He's under - - -

24MR DEVRIES:

I'm certainly happy to do that, Your Honour.

I

25

was going to say, Your Honour, I didn't want to go into

26

the evidence before Mr Johnson closed for the very reason

27

that my learned friend - - -

28HIS HONOUR:

No.

That's why this in a sense is not a final

29

address but rather you're putting together really how you

30

put your claim, to edify both Mr Johnson and myself as to

31

that effect.

1.LL:SK 11/12/08 2Cressy

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DISCUSSION

1MR DEVRIES:

If Your Honour pleases.

Your Honour, because I'm

2

attempting to edify Mr Johnson as well I might be saying

3

things that I normally wouldn't put - - -

4HIS HONOUR:

No, I follow.

5MR DEVRIES:

A bit more basic than I normally put to Your

6

Honour and I apologise if I'm - - -

7HIS HONOUR:

I will probably benefit from it anyway.

8MR DEVRIES:

With the greatest respect I take issue with that,

9

Your Honour, but we'll see how we go.

Your Honour, the

10

starting point quite obviously is the legislation.

11

the legislation that was extant at the time that the

12

parties separated.

13

which I think is called the Relationships Act.

It's

I appreciate that there is a new Act

14HIS HONOUR:

Yes.

15MR DEVRIES:

It'd be my submission that to all intents and

16

purposes that doesn't apply to this proceeding because

17

firstly the proceeding was initiated before the Act – the

18

appropriate part of the Act took force.

19

and took effect and secondly the separation preceded the

20

new provisions coming into operation.

21HIS HONOUR: 22

Yes, took force

Have you had a look at the transition provisions

of the new Act?

23MR DEVRIES:

I have, Your Honour, and I've been debating that

24

with my instructors because we – or one of my instructors

25

would take a different view as to how those transitional

26

provisions work.

27HIS HONOUR: 28

I'd better have a look at it.

It's the

Relationships Act of this year isn't it?

29MR DEVRIES:

I believe it is, Your Honour.

Because it's such a

30

large Act I printed off the Relationships Bill, and what

31

I have may not be exactly the same as the Act so I'd

1.LL:SK 11/12/08 2Cressy

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251

DISCUSSION

1

rather no quote from the Bill.

2

the old law as I think the Act referred to it, the extant

3

law as at the time of the separation and or the

4

initiation of proceedings is the appropriate law and

5

that's Part 9 of the Property Law Act.

6HIS HONOUR:

My understanding is that

It's pretty rare for Acts like that to have

7

retrospective application, so I think we can act on that

8

basis this afternoon.

9MR DEVRIES:

If the new Act did have operation in respect to

10

this matter then the scope of Your Honour's enquiry would

11

be far wider, because we would then be looking at what is

12

called in the Family Law area spousal maintenance factors

13

or s.75(2) factors.

14HIS HONOUR: 15

are they not?

16MR DEVRIES: 17

I

I know but it doesn't matter.

I don't care where

they go, Mr Devries, as long as they go.

20MR DEVRIES: 21

Probably to the Federal Magistrates' Court.

think the Family Court has dodged that - - -

18HIS HONOUR: 19

These cases are actually going to the Family Court

I have heard and it may not be correct that'll

happen towards the end of March next year.

22HIS HONOUR:

I'll live with the delay.

23MR DEVRIES:

I know there's another court not that far from

24

Your Honour that is rubbing their hands with glee at the

25

prospect of - - -

26HIS HONOUR: 27

I've heard the celebrations through the broken

window.

28MR DEVRIES:

Your Honour, Part 9 enables a party to a domestic

29

relationship to make application to this court or to the

30

County Court as the case may be, for a division of the

31

property of the parties or either of them provided that

1.LL:SK 11/12/08 2Cressy

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DISCUSSION

1

certain preconditions are met.

2

preconditions first.

3

as at time of the making of the application one or both

4

parties is resident in Victoria.

5

with that.

6

order – sorry, what I've just mentioned is s.280(a) of

7

the Act.

8

I'll deal with the

The first one effectively is that

There's no issue taken

The second condition to the making of an

Section 280(b) says that the parties – sorry, that

9

both partners must've lived in Victoria – must've lived

10

together in Victoria for at least a third of the period

11

of their relationship.

12

the length that the defendant asserts or is of the length

13

that my client asserts, they were both resident in

14

Victoria for the whole of that relationships, save I

15

think the defendant asserts that my client might've been

16

overseas for a very, very short period of time.

17

weren't resident in Victoria for at least a third of the

18

period of the relationship, there are saving provisions

19

but in my submission that doesn't require consideration

20

by Your Honour.

21

Whether the relationship is of

If they

The next condition for the making of an order is

22

covered by s.281 of the Act, and that is that either the

23

parties live together in a domestic relationship for a

24

period of two years or, the court is satisfied that there

25

is a child of the domestic partners, or there's another

26

saving provision, and because the parties have a child,

27

Illyana Cressy, if there wasn't a domestic relationship

28

of at least two years that saves the application.

29

third condition is that the application must be brought

30

to court within two years after the day on which the

31

relationship ended.

1.LL:SK 11/12/08 2Cressy

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The

If Your Honour accepts the 253

DISCUSSION

1

relationship as being of the period that is asserted by

2

the plaintiff my client is well within that time limit,

3

which is s.282(1).

4

for the minimum period that Miss that Mr Johnson had

5

asserted, then my client would need to obtain leave of

6

the court to apply for an order.

7

in his pleadings, taken issue with that and in any case

8

the more recent authorities – and I haven't brought those

9

with me, Your Honour, because I haven't addressed that

10

If Your Honour accepts that it was

Now, Mr Johnson hasn't,

issue in the context of this proceeding.

11

But the more recent decisions now say that that

12

issue, the leave issue, should be dealt with at the same

13

time as the principal issue because there are a lot of

14

overlapping circumstances.

15

decision – relatively recent decision of His Honour

16

Justice Cavanough on that – I can't remember the name.

17HIS HONOUR:

And there is a recent

Well, it would have to be so in a case like this

18

because the issue of, firstly, the existence of a

19

domestic relationship and if so the duration of it has

20

been raised by Mr Johnson, so that the question whether

21

you need leave or not will depend on the determination of

22

that issue.

23MR DEVRIES:

Yes.

24HIS HONOUR:

Secondly, I would have thought that relevant

25

discretionary factors would be the sort of matters that

26

would arise in the course of the trial.

27MR DEVRIES: 28

That's correct, with respect, Your Honour.

And

also what - - -

29HIS HONOUR:

One matter you would point to is whatever – if

30

there was a relationship and if I were to take the view

31

Mr Johnson argues for, that is that it was only a

1.LL:SK 11/12/08 2Cressy

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DISCUSSION

1

relationship of a shorter duration, nonetheless there was

2

some sort of connection, if I could use a neutral term.

3MR DEVRIES:

Yes.

4HIS HONOUR:

Because I think both sides have talked about a

5

tipping point in Easter 2007.

6MR DEVRIES:

Yes, Your Honour.

And if leave had to be sought

7

the court has to be satisfied that the balance of the

8

hardship is in favour of the plaintiff and a very large

9

number of decisions of single members of this honourable

10

court have said that that hurdle is an extremely low

11

hurdle for potential plaintiffs to overcome.

12HIS HONOUR:

You would rely, would you not, on the fact that

13

the relationship was amicable until April 2007 on both

14

sides of the evidence?

15MR DEVRIES:

Yes.

16HIS HONOUR:

There seemed to be no occasion to bring this type

17

of application till then.

18MR DEVRIES:

No, Your Honour.

19HIS HONOUR:

Your client was living in – she said she was

20

living at Altona by then.

21MR DEVRIES:

Yes, Your Honour.

Yes.

22HIS HONOUR:

She had lived at Dorrington Avenue for three or

23

four years, so that she was living in secure

24

circumstances which the defendant says that he was

25

supporting her.

26

circumstances would be relevant, would they not, to an

27

application for leave if it's necessary?

28MR DEVRIES:

So that one would think those

They would, Your Honour, and probably the most

29

important one – the most important issue would be whether

30

the plaintiff would be locked out of a right that has

31

some value.

1.LL:SK 11/12/08 2Cressy

And the second issue probably is whether she FTR:29

255

DISCUSSION

1

has an arguable case.

2

there would be no point to giving leave.

3HIS HONOUR: 4

If she hasn't got an arguable case

But if I'm to decide the issue of leave, that

would be decided as part of my judgment, would it not?

5MR DEVRIES:

Yes.

6HIS HONOUR:

She's either got a case and she either wins or

7

loses at that point.

And you say, well, if she wins she

8

ought to get leave because otherwise you'd be shutting

9

her out from a valuable right.

10MR DEVRIES:

Yes, Your Honour.

11HIS HONOUR:

I suppose, conversely, Mr Johnson, you say no harm

12

is done by denying her leave because she was going to

13

lose anyway?

14

to me to be following the event.

15MR DEVRIES:

In other words, that leave issue would seem

Yes, Your Honour.

And quite clearly Mr Johnson's

16

case is that my client never, ever had a – even the very

17

sniff of a case right from Day 1.

18

abundantly clear to my client's various legal

19

practitioners from time to time.

20

relationship is defined in the Act at s.275(1) as, "A

21

relationship between two people who, although not married

22

to each other, are living or have lived together as a

23

couple on a genuine domestic basis irrespective of

24

gender."

25

criteria that the court may take into account in

26

determining whether a domestic relationship exists, or

27

has existed.

28

And he's made that

Your Honour, a domestic

And then the Act helpfully, perhaps, lists the

This is at sub-s.(2) and what sub-s.(2) says Your

29

Honour is, and I quote, "For the purposes of the

30

definition of domestic relationship in sub-s.(1) in

31

determining whether a domestic relationship exists or has

1.LL:SK 11/12/08 2Cressy

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DISCUSSION

1

existed all of the circumstances of the relationship are

2

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

3

following matters as may be relevant in a particular

4

case".

5HIS HONOUR:

There are eight factors listed there. Perhaps I could ask to shorten this because I've

6

got the Act in front of me.

7

copy of the properties order?

8MR JOHNSON: 9 10

Mr Johnson, do you have a

Your Honour, may I be allowed to turn my notebook?

I might make a little noise lifting up, then I would have the legislation in front of me.

11HIS HONOUR:

But you don't have a hard copy?

12MR JOHNSON:

No, only on notes.

13HIS HONOUR:

I take it you're familiar with these provisions?

14MR JOHNSON:

Look, it would be a while since I've looked at

15

them Your Honour.

I don't think they're relevant to well

16

the plaintiff's case to be honest.

17

plaintiff has a case Your Honour.

I don't think the

18HIS HONOUR:

Mr Devries - - -

19MR JOHNSON:

(Indistinct).

20HIS HONOUR:

- - -look what the defendant has said - thank you

21

Mr Johnson for your assistance.

22MR JOHNSON:

May I be allowed to (indistinct)?

23HIS HONOUR:

No.

24MR JOHNSON:

Thank you Your Honour.

25HIS HONOUR:

What I - Mr Johnson obviously has access to the

26

provisions and he's a highly literate man.

He can do -

27

just simply outline to him the eight factors and tell him

28

where to go, what to look for.

It's up to you, but.

29MR DEVRIES:

Certainly Your Honour.

30HIS HONOUR:

I don't need you to read them to him.

31MR DEVRIES:

Yes.

1.LL:SK 11/12/08 2Cressy

I'll do.

Your Honour when I've finished my FTR:29

257

DISCUSSION

1

submissions I'm quite happy to give Mr Johnson a copy of

2

mine.

It has been marked, not for this - - -

3HIS HONOUR:

It's a matter for you.

4MR DEVRIES:

Yes.

The factors I'm relying on Your Honour are

5

the duration of the relationship - whatever the

6

relationship was.

7

until at least a week after Easter 2007.

8

within dispute.

9

until then, and there's no dispute that a relationship of

There was certainly a relationship up That's not

It's the nature of the relationship up

10

some sort commenced between the parties towards the end

11

of 1998.

12

relationship in that period of time and whether there

13

were breaks in that.

14

The questions are the nature of the

The factor that is in dispute between the parties is

15

the nature and the extent of them living together, and I

16

will give Mr Johnson fair warning that I'll be submitting

17

to Your Honour that he, with respect, Mr Johnson has an

18

enormous difficulty in overcoming the words that he has

19

used in an affidavit that he was the deponent of and

20

that's the affidavit that has been tendered and it will

21

take me a moment to identify the exhibit number, but we

22

know which affidavit.

23HIS HONOUR:

Yes and he told me today it contained the truth.

24MR DEVRIES:

Yes he did - he reiterated.

25

He said that before

as well Your Honour.

26HIS HONOUR:

M'mm.

27MR DEVRIES:

And on that certainly Mr Johnson has been

28

consistent, although, by way of digression Your Honour,

29

Mr Johnson's definition of truth might be a bit different

30

to what mine would be Your Honour, but I'll be urging him

31

to take (indistinct).

1.LL:SK 11/12/08 2Cressy

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DISCUSSION

1HIS HONOUR: 2

They're issues of credibility you're going to come

to of course.

3MR DEVRIES:

Absolutely Your Honour.

No dispute that there was

4

a sexual relationship.

There may be a dispute as to

5

whether it subsisted for the whole of the relationship

6

but there's been no suggestion from Mr Johnson that it

7

didn't.

8

and any arrangements for the financial support between

9

the parties.

Degree of financial dependent to interdependence

If Your Honour accepts Mr Johnson's

10

evidence, and I'm not submitting Your Honour ought to in

11

this respect in its entirety, he would have you believe

12

that he has supported my client and members of her

13

family, including their child, for the whole of the

14

period that we say the domestic relation subsisted for.

15

Ownership, use and acquisition of property - use

16

certainly comes into this.

17

acquisition, my client's evidence was that there was a

18

commitment to a shared life and my submission will be,

19

when I get to the evidence, that some of Mr Johnson's

20

correspondences points to the same end.

21

of the children in this case.

22

distinguish between the children, but there's one

23

principal child and two other children.

24

Arguments about ownership and

Care and support

One for - I don't want to

There's one child clearly of the parties for the

25

purposes of these proceedings, and two other children of

26

my client and Mr Johnson for some reason wants to bring

27

into the equation his other three children.

28

the reputation on public aspects of the relationship, and

29

that depends, with respect Your Honour, in large part on

30

whether Your Honour accepts the evidence of Ms Gail

31

Cressy Your Honour on that or not.

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259

Then there's

DISCUSSION

1HIS HONOUR:

That sorry?

2MR DEVRIES:

The reputation of public aspects of the

3

relationship.

Where they held themselves out as being -

4

I'd be relying principally on the evidence of Ms Gail

5

Cressy on that.

6

client's own evidence of course.

My client's mother.

As well as my

7HIS HONOUR:

M'mm.

8MR DEVRIES:

If Your Honour finds that there is or has been a

9

domestic relationship, and that the other jurisdiction or

10

pre-requisite issues are met, then Your Honour, the next

11

step to Your Honour is the question of the contributions

12

of the parties.

13

moment, but are there in my submission five categories of

14

contributions.

15

financial.

16

non financial.

17

I will get to Giller v. Procopets in a

There's direct financial and indirect

There's direct non financial and in direct

Notwithstanding the fact Your Honour, that various

18

decisions, including Giller v. Procopets, attempt to role

19

them up into two sorts of contributions.

20

the one hand, non financial on the other.

21

Financial on

Then there is the fifth category which is the

22

contributions of one or both parties in the capacity of

23

homemaker and parent.

24

contribution was taken to be a contribution up to the end

25

of the relationship.

26

Until 9.30 yesterday, that

It's probably a grey area as to when that

27

contribution ends and whether the court can look at the

28

contributions that may occur in the future or not.

29

That's where one gets into the realms of what the

30

Family Court does, and the Federal Magistrates' Court,

31

exercising Family Law jurisdiction.

1.LL:SK 11/12/08 2Cressy

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260

If only the Full DISCUSSION

1

Court had waited another month or so Your Honour.

2HIS HONOUR:

Yes.

3MR DEVRIES:

If I could give examples of each of the first four

4

contributions.

A financial contribution - sorry, I'll

5

backtrack one.

The high point of the analysis of

6

financial contributions is probably the decision of

7

His Honour, Justice Morris as he then was in

8

Findlay v. Besley.

9

of the range in terms of information that the court has

10

That is probably at the opposite end

in this matter.

11HIS HONOUR:

Yes.

12MR DEVRIES:

I make no bones about that.

I can't make any

13

bones about that.

14

advantage of - right down to the last dollar, every

15

dollar that each party brought in directly and

16

indirectly, by way of financial contributions and the

17

expenditure of that.

18

His Honour seemed to have had the

It was an extraordinary decision, it was probably

19

more an actual exercise in vision, with respect

20

His Honour and His Honour's part.

21

heard to say that it should be looked at in the

22

particular circumstances of that case and the information

23

that His Honour had.

His Honour has been

24

There are a number of other decisions that I will

25

take Your Honour to, where the amount of information is

26

less detailed then than and where has taken an approach

27

which I'll be urging upon you and that is, I suppose in

28

words from the decision, do the best with information

29

that Your Honour has.

30

bench more often than not is faced with and shouldn't be

31

in the superior court, such as Your Honour's court.

1.LL:SK 11/12/08 2Cressy

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That's an unfair burden that the

261

DISCUSSION

1HIS HONOUR:

It is a difficulty in this case.

We do do it in

2

different areas, where we don't decline to award damages

3

because there's an uncertainty attaching to them and

4

there's a difficulty and a lack of precision, both in

5

contract and in tort.

6

bottom line, got to be some identification of the

7

contribution, particularly the financial ones, so I can

8

at least put some value on them.

But, there still has to - at the

9

Then there has to be some identification of just

10

what is the pool of assets now, because any - if I did

11

make an award, any order might be grossly unfair to one

12

or other party, depending on how big or small the net

13

assets are.

14 15

It's not as difficult - I mean, the issue as to contributions of homemaker and parent.

16MR DEVRIES:

Yes.

17HIS HONOUR:

That's a matter for me to make findings on fact

18

and there are disputes of fact in relation to that.

19

Valuing that is difficult, but we are use to ultimately

20

working that type of equation out in various areas.

21MR DEVRIES:

Some of the decisions, including

22

Giller v. Procopets, with respect permit the court to

23

take a global approach in Giller v. Procopets, that's Her

24

Honour who wrote the principal decision, did say that the

25

court should be minded that there are two approaches, the

26

global approach - - -

27HIS HONOUR:

Or asset by asset.

28

individual case.

29

more global approach?

30MR DEVRIES: 31

Much would depend on each

And you say in this case it should be a

It should be and it should be the contribution,

not just - - -

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262

DISCUSSION

1HIS HONOUR:

Because - - -

2MR DEVRIES:

Sorry.

3HIS HONOUR:

One of the contributions your client is relying

4

on, if I accept it, is her contribution as a homemaker

5

and mother.

6MR DEVRIES:

Yes.

7HIS HONOUR:

That really simply applies across the properties.

8MR DEVRIES:

It's to the - Giller v. Procopets does refer

9 10

Your Honour to the contributions to the relationship.

I

don't it uses quite those words.

11HIS HONOUR:

Yes.

12MR DEVRIES:

Something very similar to that, I was going to

13

come to the precise words after I'd left that.

14

contributions as homemaker and parent or in the capacity

15

of homemaker and parent, is a separate and distinct

16

contribution to that being the direct and indirect

17

financial and non financial contributions.

18

But, the

The courts have recognised that that's not an

19

inconsequential factor.

20

sitting in the Family Law jurisdiction, the attendant who

21

appears to be to say effectively if one part - in that

22

case the spouse, if one party does the best they can in

23

the circumstances to play their role in the family

24

situation, whether it's homemaker or breadwinner or a

25

combination of both, and the other party does the very

26

they can, then those contributions should be seen to

27

equal each other.

28

If Your Honour had the luxury of

Notwithstanding the fact that one party may have

29

brought in ten times, 20 times what the other party

30

brought in by way of earnings, or financial amounts.

31

Unfortunately, even with yesterday's decision, I

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DISCUSSION

1

don't think that Your Honour's got that out.

Unless Your

2

Honour wishes to follow the Family Court authorities, and

3

I can take Your Honour to - - -

4HIS HONOUR:

I've got to apply s.285.

5MR DEVRIES:

Now, if I can - I was going to - - -

6HIS HONOUR:

- - - the non-financial contributions, I take it,

7

are matters such as improvements to the assets, and to

8

the - - -

9MR DEVRIES: 10HIS HONOUR:

There are a number of examples - - Work done, for example, the (indistinct) the

11

accountants who work for busy barrister of a husband, and

12

things like that.

13MR DEVRIES:

There are a number of examples of non-financial

14

contributions.

One is the direct - so it's a non-

15

financial contribution - you'll have to ignore my learned

16

friend, Your Honour.

17

these situations, Your Honour.

18

non-financial contribution would be the party who paints

19

the house.

He's got an idiosyncratic view of One example of direct

20HIS HONOUR:

Yes.

21MR DEVRIES:

Does the plumbing, does the gardening.

An

22

indirect non financial contribution would be if, for

23

argument's sake, one of the parties was involved in the

24

building industry, and they got somebody along, or

25

somebody got a relative along, to do some things as a

26

favour for them, and it will be argued by me that some of

27

the things that my client's mother did could be

28

characterised by Your Honour, with respect, as an

29

indirect, non financial contribution.

30HIS HONOUR:

That may depend on whether she was paid or not.

31MR DEVRIES:

Yes, Your Honour.

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264

DISCUSSION

1HIS HONOUR: 2

But I hear what you say, anyway, you're really

just simply outlining how it's going to be put, so.

3MR DEVRIES:

Yes, I'm giving examples at this stage - - -

4HIS HONOUR:

No, well, that assists me, and I would think,

5

instead of helping Mr Johnson to know shape of the case,

6

that you'll be putting in your final address, which is

7

really what I was asking you to do today.

8MR DEVRIES: 9

Yes, Your Honour.

There's another form of non-

financial contribution, which would be of - a party have

10

brought in a fully furnished home that they owned

11

outright prior to the relationship, and the parties used

12

that for the purposes of the relationship, that would

13

seem to be a non-financial direct - probably direct

14

contribution to the relationship, and the - in the

15

context of this case, in this type of case, Your Honour,

16

I'd be submitting that the financial contributions are

17

the incomes that the parties brought in, assuming that

18

they were used for the relationship, and if there were

19

any windfalls, such as inheritances or Tattslotto wins or

20

anything like that, and there's been no evidence about

21

that at all, and the non-financial would be the work that

22

my client has given evidence that she did, if Your Honour

23

accepts that evidence, with respect, on the properties,

24

in the defendant's business, and if Your Honour accepts

25

that she did that for remuneration, as the defendant

26

would have, but she wasn't paid that, and it was ploughed

27

back in, that would be either an indirect contribution or

28

perhaps even a financial contribution, because she's

29

ploughed the money back in, and she has also given

30

evidence that that happened with respect to Artemis, the

31

gallery.

1.LL:SK 11/12/08 2Cressy

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265

DISCUSSION

1

The contributions as homemaker and parent has two

2

self-evident aspects.

One is of homemaker, and that's -

3

and I know I'm going to offend somebody, that's the role

4

that sometimes is described as housewife and sometimes as

5

househusband, that's those sorts of things, as distinct

6

from the parenting tasks, because that's where you get

7

the contribution in capacity of parent, and it will be my

8

case, Your Honour, that - well, it is my case that my

9

client was the sole homemaker, and she was almost but not

10

quite the sole parent to the child of the parties,

11

Illyana, and Skye and Treece, because the Act says

12

contribution made by either of the domestic parties to

13

the welfare of the other domestic party, to the welfare

14

of the family constituted by the partners, and one or

15

more of the following, a child of the partners, which is

16

Illyana, a child accepted by one or both of the parties

17

into their households.

18

child is a child of either of the partners, and that's

19

where Skye and Treece come in.

Whether the - whether or not the

20HIS HONOUR:

Sorry, what were you reading off from there?

21MR DEVRIES:

Sorry, that's 285(1)(b)(ii).

22HIS HONOUR:

I'm sorry, Your Honour.

Well, I think you're

23

being a bit rough on Mr Johnson, aren't you?

24

(indistinct) role in the life that includes Skye and

25

Treece, that they still regard him as their father, it

26

would be hard to say he didn't do any parenting.

27MR DEVRIES:

If he has

I was going to say, Your Honour, I was just about

28

to say before Your Honour spoke, that that's - from my

29

client, that's a double edged sword in terms of the

30

evidence that - and the way that she would portray that

31

evidence, and - - -

1.LL:SK 11/12/08 2Cressy

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266

DISCUSSION

1HIS HONOUR: 2

Well, you seek to rely on that evidence as part of

building up the domestic relationship - - -

3MR DEVRIES:

Absolutely, Your Honour.

4HIS HONOUR:

- - - do you not, but equally, if I were to find

5

that relationship existed, it would seem to me - or

6

whether or not I did it seemed to me, even from my

7

recollection on your client's evidence, that she accepted

8

that Mr Johnson has been a good father, albeit like a lot

9

of professionals, extremely busy but somehow still

10

managing to bond well with the children.

11MR DEVRIES:

It is my case, Your Honour, that inevitably he was

12

sufficiently part of the household to develop such a

13

close relationship with the two boys that from time to

14

time each of them called him dad, or something along

15

those lines, and my client hasn't denied – and in fact

16

accepted the evidence that there were a lot of occasions

17

when the five of them, and occasionally the eight of

18

them, went out on, quote "family" unquote, excursions.

19

And Mr Johnson has signed up that the children and my

20

client to family memberships of a vast array of

21

attractions.

22HIS HONOUR:

Yes.

23MR DEVRIES:

So the way I will be putting the case is that

24

Mr Johnson did as much as he could as a father and/or

25

parent as his work commitments allowed.

26

his work commitments, and they were huge – almost as much

27

as most counsel that I know, Your Honour – but they were

28

huge and they prevented him from playing as much of a

29

role as a parent at home may – as my client had.

30

Mr Johnson argues that a little bit of that applies to my

31

client; and so it does, because she has said, "Yes, I

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267

But, because of

Now,

DISCUSSION

1

wasn't around as much as I should have been, or could

2

have been.

3

school care because of my work commitments", so that's a

4

double-edged sword for her as well.

5

factor that the Act requires the court to take into

6

account as one of the many factors, and that is sub-s.(c)

7

which is any written agreement entered into by the

8

domestic parties.

9

I had the children in pre-school and after

There is another

There is no evidence in this particular case, and no

10

one is asserting a written agreement, Mr Johnson has

11

referred to a child support agreement, an unwritten child

12

support agreement, and I'll be asking Your Honour to draw

13

certain inferences in respect of the existence of that

14

agreement from the fact that it was never, ever put by

15

him to my client that there was a child support

16

agreement, and it's not referred to in any of the

17

pleadings.

18

consideration or not is a different matter, save for the

19

fact that, I think, Giller v. Procopets does require the

20

court to look at the contributions that a party has made

21

by way of payment of child support, particularly after

22

the cessation of the relationship.

23

kindly conceded that the child support that he has paid

24

since, we say, the relationship ended has been fairly

25

small; it was one payment.

And whether it is relevant to Your Honour's

But Mr Johnson has

Again, not put to my client.

26

Having determined what the parties' respective

27

contributions are, sub-s.(1), and this is the way I'll be

28

submitting that the courts have looked at events, says

29

taking account of those contributions, and if there was

30

an agreement, the agreement, what adjustments should the

31

court make to the property of one or both of them that

1.LL:SK 11/12/08 2Cressy

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268

DISCUSSION

1

seems just and equitable?

And that equates to a fourth

2

step in the Family Court area and a third step in this

3

court.

4

relevant juxtaposition, sub-s.(1) talks about, "Adjusting

5

the interests of the domestic parties in the property of

6

one or both of them", and that would appear to be – or

7

that is, "both real and personal property and any estate

8

or interest in real or personal property and money,

9

debts, cause of action for damages and any other thing

And if I can identify an interesting and probably

10

and action and any right with respect to property."

11

that's the property part of the definition.

12

Now,

In making an adjustment to the property, Your

13

Honour, takes into account – sorry, I've lost my page –

14

has to look at the contributions to the acquisition,

15

conservation or improvement of any of the property or the

16

financial resources of one or both of the parties.

17

come back to acquisition, conservation or pertinent, but

18

a financial resource in this particular case would be

19

Mr Johnson's superannuation and Miss Cressy's

20

superannuation.

21

I'll

Unlike the family - I know of the court's exercise

22

in family law jurisdiction Your Honour cannot make an

23

order in respect to adjusting interests opposing

24

superannuation that the Family Court and the Federal

25

Magistrates' Court and they can make discretion orders,

26

but Your Honour can't, with respect.

27

complicated exercise.

28HIS HONOUR:

That's a very, very

Well, I can't say I'm disappointed I can't, but

29

the fact is you take into account the contributions, with

30

a look at the appropriate case.

31

contributions to the other party's superannuation and

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269

One party's made large

DISCUSSION

1

then you take that into account.

2MR DEVRIES:

If Your Honour takes the - - -

3HIS HONOUR:

You wouldn't adjust it, but you would take that

4

into account in the adjustment that took place.

5MR DEVRIES:

That's a right - - -

6HIS HONOUR:

In respect of property that is amenable to

7

adjustment.

8MR DEVRIES:

Yes.

9HIS HONOUR:

Yes.

10MR DEVRIES:

That's what I'll be urging upon Your Honour.

Acquisition conservation or improvement - I don't

11

think I need to address Your Honour on those three terms.

12

They're pretty self-evident.

13

meaning.

14

my submission that there's no evidence that either party

15

had anything of significance at the commencement of the

16

relationship so that everything that was there at the end

17

of the relationship was acquired during the course of the

18

relationship and it's a matter of, at the end of the day,

19

the respective contributions which Your Honour would find

20

has been made to all of that property.

21

They have their normal

In this particular case Your Honour, it'll be

I should digress for one moment and raw Your

22

Honour's attention to s.286(1)(a) of the Act, and I don't

23

think Your Honour's going to thank me too much for

24

drawing Your Honour's attention to that section, but

25

basically that permits Your Honour to adjourn a

26

proceeding if the court is of the opinion there's likely

27

to be a significant change in the financial circumstances

28

of one or both of the parties in that the partners in it

29

is reasonable to adjourn the (indistinct) having regard

30

to the time when that change is likely to take place".

31

That may or may not include the crystallisation of

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DISCUSSION

1

the interests of the parties' (indistinct) in the real

2

estate that seems to be in the process of being sold or

3

about to be sold.

4HIS HONOUR: 5

What real estate's about to be sold?

Queen

Street?

6MR DEVRIES:

Queen Street I understand it has been sold and

7

it’s a matter of the settlement of the sale of that

8

property, and I'm not sure where I've put my notes, with

9

respect, to what's happened to other properties, but

10

there are - - -

11HIS HONOUR:

Mr Johnson was not aware of what has happened to

12

the two Point Cook properties.

There - I think emerged

13

either from him or from your side a suggestion that the

14

mortgagee had moved in or was in the process of moving

15

into those properties.

16MR DEVRIES:

Yes.

There was - - -

17HIS HONOUR:

Which would account for your client leaving them.

18MR DEVRIES:

Yes.

19HIS HONOUR:

She moved out as I understand it in recent times.

20MR DEVRIES:

She did Your Honour, and that was because the

21

mortgagee had given her notice.

22

with you Your Honour, quite properly, that the court - I

23

think it was His Honour Mr Justice Hansen's orders - had

24

made orders for my client to forthwith sell the property

25

as if she was mortgagee in possession.

26

with Your Honour a difficulty with that and Your Honour

27

had stated that that was a matter that should be raised

28

if and when we get to the question, what order should be

29

made - following your orders - your Honour's judgment.

30

Effectively what happened in that situation Your

31

Mr Johnson has raised

I had flagged

Honour I that the Titles Office didn't recognise the

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DISCUSSION

1

order made by His Honour, and my client couldn't - - -

2HIS HONOUR:

Sell?

3MR DEVRIES:

Couldn't sell and there are various theories as to

4

whose fault that is - whether it's the court's or the

5

Titles Office, or the practitioners, but there was a lot

6

of debate as to what the appropriate orders were and not

7

surprisingly His Honour's view prevailed.

8

prevail over the - - -

9HIS HONOUR:

Titles Office.

All right.

But it didn't

Well that order of

10

Justice Hansen in effect didn't have the affect that was

11

intended, but - I really need to have some precision

12

about this.

13

there may be - at the moment, there may be advantage in

14

what is I think going to inevitably happen with this

15

proceeding anyway.

I mean if that property is being sold then

It'll get put over to February.

16MR DEVRIES:

That would, with respect Your Honour.

17HIS HONOUR:

I'm in a hopeless stage in - if I do get to the

18

stage of adjusting interests, knowing what there is.

19

evidence is - and I can't guess, can't speculate.

20

There's a Hawkhurst property and Mr Johnson's told me the

21

amount of debt over it.

22

in terms of equity.

I have no idea what that means

23MR DEVRIES:

Yes.

24HIS HONOUR:

There's no valuation evidence on that.

25

valuation evidence on Gibson Street.

26

me the amount of debt secured over that.

27

same.

28

that.

No

I think he's told Torquay's the

Lisa Court's gone, so we don't have to worry about

29MR DEVRIES:

I was going to address Your Honour on that.

30HIS HONOUR:

You'll come to that at some stage, but I keep

31

The

raising the issue - - -

1.LL:SK 11/12/08 2Cressy

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DISCUSSION

1MR DEVRIES:

M'mm.

2HIS HONOUR:

That you are pretty experienced, I've no doubt

3

you've got something to put to me.

4

understand, at this stage, I see that as a real problem.

5MR DEVRIES: 6

Yes, Your Honour.

You'll need to

If I can deal with an immediate

issue first before I touch on that?

7HIS HONOUR:

Yes.

8MR DEVRIES:

If the matter isn't concluded tomorrow - - -

9HIS HONOUR:

Yes.

10MR DEVRIES:

- - - and given that Your Honour will be, with

11

respect, reserving Your Honour's judgment, I presume

12

Your Honour's going to reserve his judgment, it can't

13

be - - -

14HIS HONOUR: 15

If it isn't finished I can't actually deliver

judgment.

16MR DEVRIES:

No.

17HIS HONOUR:

The usual process in this court is to give

18

judgment when the case has completed, not during it.

19MR DEVRIES:

What I meant to say Your Honour, in my clumsy way

20

is if all of the evidence and all of the addresses were

21

completed by tomorrow night, I had anticipated that

22

Your Honour wouldn't immediately pronounce judgment in

23

the matter.

24HIS HONOUR:

I don't say that with any disrespect - - -

If the whole case finishes tomorrow night, I would

25

do my best to have and give judgment before New Year's

26

Even.

27MR DEVRIES:

So by New Year's Eve?

28HIS HONOUR:

I'd get judgment out before I went away on

29

holidays.

30MR DEVRIES:

Yes, Your Honour.

31HIS HONOUR:

So that - - -

1.LL:SK 11/12/08 2Cressy

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DISCUSSION

1MR DEVRIES:

With respect sir - - -

2HIS HONOUR:

If the case finishes - the chances of it finishing

3

tomorrow at this pace are pretty light.

4MR DEVRIES:

And that brings to the fore the issue that I wish

5

to raise with Your Honour and would have raised with

6

Your Honour tomorrow, is that if the matter isn't going

7

to be determined in a very short space of time, I'll be

8

asking Your Honour to make orders requiring the proceeds

9

of sale of any of the properties that are to be sold,

10

after payments of costs of sale and mortgagee's costs and

11

so on, to be paid into court and abide with the decision

12

of this court.

13HIS HONOUR:

You can ask me to do that but you're running into

14

the same hurdle.

I'm only going to make that order if I

15

know what's being sold.

16

the dark.

I'm not going to make orders in

17MR DEVRIES:

Your Honour - - -

18HIS HONOUR:

As I understand it, doing the best we can, it

19

looks as though Queen Street is in the process of being

20

sold.

21MR DEVRIES:

Yes.

22HIS HONOUR:

If that is right, I could make an appropriate

23

order to that effect.

24MR DEVRIES: 25

In that respect Your Honour, I believe there are

orders already in place for that.

26HIS HONOUR:

There you are.

27MR DEVRIES:

I suppose there's no danger that Mr Johnson will

28

take the money and run because of the caveats.

29

there's going to be an argument as to what happens to the

30

proceeds if there's any - - -

31HIS HONOUR:

But,

Of what?

1.LL:SK 11/12/08 2Cressy

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274

DISCUSSION

1MR DEVRIES:

Of sale of any of the properties if their in the

2

process of being sold.

3

tomorrow morning.

4HIS HONOUR:

I'll have clear instructions by

I'm having a lot of difficulty following what you

5

are asking me to do and on what basis and what properties

6

you're asking me to do it.

7MR DEVRIES:

Maybe I'll leave that till tomorrow Your Honour.

8HIS HONOUR:

I need some precision about it Mr Devries.

9 10

I know

it's a long, grinding case, for all of us and we're all out on our feet - - -

11MR DEVRIES:

I'm just trying to flag the issue Your Honour.

12HIS HONOUR:

Well you can flag it, but I'm not going to be

13

unmaking any parametary orders.

14MR DEVRIES:

No, Your Honour.

15HIS HONOUR:

Table the proper material and Mr Johnson's got to

16

be heard on this.

17MR DEVRIES:

Of course, what I'm - - -

18MR JOHNSON:

Excuse me, Your Honour.

19HIS HONOUR:

Yes.

20MR JOHNSON:

I'm offended by the suggestion that without the

21

caveats there'd be a danger of me taking money and

22

running, I find that offensive.

23HIS HONOUR:

Yes, well - - -

24MR JOHNSON:

I didn't actually explain - - -

25HIS HONOUR:

I hear your objection to that, in fact apparently

26

Mr Johnson, what Mr Devries is doing is referring to part

27

of the summons that you've - - -

28MR JOHNSON:

Thank you, Your Honour.

That summons I issued, I

29

had no idea that the matter had been set down for trial

30

at that point.

31

myself with grief.

1.LL:SK 11/12/08 2Cressy

I was in a situation where I was beside

FTR:29

I'm a defendant, not just in this 275

DISCUSSION

1

legal process but also in a very turgid commercial

2

process.

3

start earning an income and keep some of my properties

4

once this vexatious claims are removed.

5

get judgment for Your Honour before New Year's Eve, even

6

earlier than that if possible Your Honour - - -

I'm trying to get out of this so that I can

I'm desperate to

7HIS HONOUR:

It sounds like - - -

8MR JOHNSON:

- - - and to the extent - - -

9HIS HONOUR:

It sounds like we're not going to be able to do

10

that.

11MR JOHNSON:

Even to the extent of truncating and closing my

12

case Your Honour.

13

that's going to make a pupil difference.

14

justice in judgment this year, Your Honour.

15HIS HONOUR:

Closing my case right here and now if

That's a matter for you.

I must get

If you can finish that

16

and everyone finish their final addresses and Ms

17

Sofroniou wants to make a no case submission, which I

18

have to consider and then give judgment in - - -

19MR JOHNSON:

Your Honour - - -

20HIS HONOUR:

Timing is tight.

21

I have done my level best in

this case - - -

22MR JOHNSON:

Absolutely, sir.

23HIS HONOUR:

- - - long hours, coming at the end of an

24

extremely grinding year, if I may say so, to accommodate

25

this case.

26

you to be relevant, stick to the point and not waste

27

time.

28

do that - - -

29MR JOHNSON: 30

I have lost count of the times I have asked

If I had a dollar for every time I'd asked you to

I'm eternally grateful for your efforts,

Your Honour, regardless of the outcome.

31HIS HONOUR:

The fact of the matter is I don't know whether

1.LL:SK 11/12/08 2Cressy

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276

DISCUSSION

1

even doing all of that would complete.

2MR JOHNSON:

Your Honour, may I also submit that the - - -

3HIS HONOUR:

I suggest we'll see where we're at tomorrow

4

evening.

5MR JOHNSON:

Your Honour, may I submit the concerns you have

6

about lack of information to me, that's quite abundantly

7

the case.

8

adequate case.

9HIS HONOUR: 10

The plaintiff just simply hasn't presented an They don't have the facts.

That's why I keep directing that comment, that

remark, not to you - - -

11MR JOHNSON:

Thank you, Your Honour.

12HIS HONOUR:

- - - I direct it to Mr Devries.

13MR JOHNSON:

Yes, thank you.

14HIS HONOUR:

It's his clients application.

He may persuade me

15

to the contrary and if you think there's any criticism of

16

you in that, there is not.

17MR JOHNSON:

No, I took no criticism.

It's just frustration

18

that I am defending myself on a case that hasn't been

19

presented - - -

20HIS HONOUR:

Well, Mr Devries says to the contrary so I've got

21

to hear his response to the point I've made.

22

we don't get ourselves losing what little time is left.

23MR DEVRIES:

It's best

I was going to say Your Honour, in the context of

24

the flag that I've have flown and where Your Honour had

25

beaten me to the mark was that what I was seeking was not

26

inconsistent with - or what I'd be seeking was not

27

inconsistent with Mr Johnson's chambers application.

28HIS HONOUR: 29

That may or may not right but I'm just not going

to make any orders in the - - -

30MR DEVRIES:

No.

31HIS HONOUR:

You're not even going to tell me what properties

1.LL:SK 11/12/08 2Cressy

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277

DISCUSSION

1

you wanted to apply to.

What properties are for sale?

2

There's no evidence on it.

I can't - - -

3MR DEVRIES:

I can't do that at this very moment, Your Honour.

4HIS HONOUR:

There's no sense debating it - - -

5MR DEVRIES:

No.

6HIS HONOUR:

Let's just get on.

7MR DEVRIES:

Your Honour, before I turn to Giller v. Procopets

8

I was going to - - -

9HIS HONOUR:

If the parties could turn their mind to any

10

sensible orders I could make?

11

completing tomorrow.

12

the case has proceeded so far.

13

their minds to any sensible order that can be made to

14

facilitate a sale, and both parties having assurances to

15

the safekeeping of any proceeds in the meantime?

16

prepared of course to make those orders because I would

17

think in both parties – interested in some of these

18

properties on which debt is accumulating be sold but I

19

need some proper information if the matter's going to be

20

a matter of contest.

21

against the protestation of one party, not in the absence

22

of proper information or evidence.

23MR DEVRIES:

I can't see this case

Not at the snail-like pace at which If the parties could turn

I'd be

I can't simply make the orders

If Your Honour pleases.

Your Honour, returning to

24

the process it's not entirely clear from the authorities

25

but - whether the chicken comes first or the egg comes

26

first.

27

domestic relationship or determine what the (indistinct)

28

of the parties is, but at some stage in the process the

29

court has to determine what the property and financial –

30

sorry, what the property of the parties real and person

31

is and then divide it.

Whether the court has to find the existence of a

1.LL:SK 11/12/08 2Cressy

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And the court as I have indicated 278

DISCUSSION

1

to Your Honour, and I'll come back to that in a moment in

2

the context of Giller v. Procopets, can do it either on

3

an asset by asset approach or globally.

4

way of – as the court did in that case by - - -

You can do it by

5HIS HONOUR:

I think the court - - -

6MR DEVRIES:

- - - for it - - -

7HIS HONOUR:

I think the approach – this global by global or –

8

sorry, global or asset by asset is more how you calculate

9

things like contributions - - -

10MR DEVRIES:

Yes, Your Honour.

11HIS HONOUR:

Then ultimately you try to get some sort of

12

comparison of the respective contributions, and you

13

decide what will be just and equitable in terms of an

14

adjustment of the legal interests that are then proven to

15

exist.

16MR DEVRIES:

In most cases, sir, and as far as my researches go

17

the decision of the Court of Appeal may be the exception,

18

but in most cases the court determines on a percentage

19

having got all the contributions and the fair and

20

equitable – and then applies that to the pool.

21

appears that the Court of Appeal did it a little bit the

22

other way.

23

that happens to equate to I think it was ten per cent or

24

almost ten per cent, and as far as I can see in almost

25

all cases if the court determines on a division it's done

26

on a percentage basis.

27

But it

This is the thing we think is appropriate and

That's the translated if it can be translated.

One

28

of the exceptions is Findlay v. Besley and those cases

29

where the court says, "Well, sufficient provision has

30

been made and therefore we don't have to go any further".

31

And that is what His Honour Justice Gillard as he then

1.LL:SK 11/12/08 2Cressy

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279

DISCUSSION

1

was, the judge at first instance did and that's what His

2

Honour Justice Ashley would've done.

3HIS HONOUR:

What did Justice Gillard do in Procopets?

4MR DEVRIES:

He took the view that in all of the circumstances

5

the plaintiff had been – in terms of the domestic

6

relationship the plaintiff had been adequately

7

compensated for by her contributions by what happened

8

through the relationship.

9HIS HONOUR: 10MR DEVRIES:

I follow. That's what His Honour Justice Morris as he then

11

was did in Findlay v. Besley as well.

12

Honour did in that case was to say, "I don't need to look

13

at the contributions as homemaker and parent because

14

whatever adjustment I would make still wouldn't cover the

15

difference between what Ms Beswick had obtained and what

16

she would've obtained".

17

Procopets - - -

18MR JOHNSON:

Now, turning to Giller v.

Sorry, excuse me for interrupting.

19

understand any of that, Your Honour.

20

sorry.

21HIS HONOUR:

In fact what His

No, that's all right.

I just didn't

Forgive me, I'm

What Mr Devries is saying

22

was that there may be some cases where a court finds that

23

although contributions were made, no adjustment of the

24

existing legal interest is required to ensure justice and

25

equity.

26MR JOHNSON:

It's all a case by case matter though. Is it a suggestion that the party who made the

27

contributions ate their cake during the relationship, and

28

they shouldn't - - -

29HIS HONOUR:

I don't know.

30MR JOHNSON:

I'm struggling to make some sense - - -

31HIS HONOUR:

I'm not too sure that what Mr Devries is putting

1.LL:SK 11/12/08 2Cressy

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280

DISCUSSION

1

to me really has – with the greatest of respect to him

2

was of great assistance.

3

client wishes or seeks in this case to what assets that

4

would assist you and me.

It's really what adjustment his

5MR JOHNSON:

Thank you, Your Honour.

6HIS HONOUR:

And an articulation of the principles of what

7

she's going to rely on.

8MR DEVRIES: 9

Perhaps, Your Honour, if I can turn to Giller v.

Procopets, it is a very, very long decision, and it

10

covered a great number of issues over and above domestic

11

relationship matters, and - - -

12HIS HONOUR: 13

Well, Justice Neeve articulated a number of the

principles.

14MR DEVRIES:

Yes, and I just observed in passing that His

15

Honour Justice Ashley wasn't totally in agreement with

16

Her Honour's decision in that respect, but Her Honour was

17

in the majority.

18HIS HONOUR:

Yes, the learned president - - -

19MR DEVRIES:

Yes.

20HIS HONOUR:

- - - agreed with Her Honour.

21MR DEVRIES:

The important aspects of this decision are, first

22

of all, at Paragraph 272.

23HIS HONOUR:

Yes.

24MR DEVRIES:

It follows that His Honour fell into error in

25

holding that post separation contribution to exclude her

26

from consideration under 285(1)(b), and Her Honour went

27

on to say, "After the couple separated in July 1993,

28

Ms Giller contributed to welfare of the family by

29

undertaking domestic work and caring for the twins.

30

Mr Procopets also made homemaking and parent

31

contributions until December 1996.

1.LL:SK 11/12/08 2Cressy

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281

From December 1996, DISCUSSION

1

Ms Giller had complete responsibility for caring for the

2

couple's twin sons.

3

taken into account", and Her Honour turned - to use the

4

heading that Her Honour used, "Requiring a nexus between

5

homemaker and parent", in quotations, "Contributions and

6

the property of the parties".

7

These contributions should have been

Their Honours adopted the approach taken by His

8

Honour Justice Wilson in Mallet v. Mallet, a High Court

9

decision, obviously in the Family Law jurisdiction, and I

10

quote, "Whilst deserving, the contribution made as a

11

homemaking parent must be assessed not in a merely token

12

way, His Honour emphasised that it must be 'in terms of

13

its true worth, the building up of assets'.

14

out the quality of the homemaking parent may vary

15

enormously", and then - - -

16HIS HONOUR: 17

He pointed

It goes a little bit wider in s.285, though,

doesn't it?

18MR DEVRIES:

It does, Your Honour.

19HIS HONOUR:

There's also a contribution to welfare.

20MR DEVRIES:

Yes, and that's what Her Honour observes further

21

in Paragraph 275.

22

the Act".

Her Honour says, "Section 285(1)(b) of

23HIS HONOUR:

Yes?

24MR DEVRIES:

"Like the New South Wales equivalent, does not

25

require any link between homemaker/parent contributions

26

and the acquisition, conservation, or improvement of

27

property.

28

the welfare of the family", and I touched on that earlier

29

Your Honour.

30

Ms Giller's work as a homemaking parent to be irrelevant,

31

only if it contributed to the acquisition, conservation,

1.LL:SK 11/12/08 2Cressy

The link, which must be shown, is a link to

"Thus if His Honour had considered

FTR:29

282

DISCUSSION

1

or improvement of Mr Procopets' assets, this would have

2

been an error of law.

3

didn't" - - -

4HIS HONOUR: 5

However, in that case, His Honour

"Read a whole, however, His Honour's reason

dispose no such error".

6MR DEVRIES:

Yes.

"Thus His Honour did not ignore" - this is

7

277, Your Honour, "Thus His Honour did not ignore

8

Ms Giller's contribution to the welfare of the family, he

9

concluded the deponents have made equal contributions to

10

the welfare of the family while they were living

11

together, and that Ms Giller was more than adequately

12

compensated for her contributions by financial and other

13

benefits she received by living with Mr Procopets".

14

of course, Your Honour, whilst I deal with it properly,

15

or deal with it in more detail in my address proper, that

16

was a much shorter relationship than - - -

17HIS HONOUR:

Yes, three years.

18MR DEVRIES:

- - - the one that I'm asserting today.

Now,

Your

19

Honour, I'm not going to - unless it assists Your Honour,

20

go into the great discussion about the global versus

21

asset by asset approach.

22HIS HONOUR:

No.

23MR DEVRIES:

But what Her Honour says is, and she adopted - - -

24HIS HONOUR:

I would have thought that where one party

25

primarily plays the role of the homemaker, and the other

26

is the breadwinner, that generally, you'd be looking at a

27

more global approach, whereas if they're both a couple

28

out physically working, then you might go the other way

29

around, but that's more just a matter of common sense

30

than a statement of any startlingly legal principle.

31MR DEVRIES:

It also, with respect, Your Honour, depends on the

1.LL:SK 11/12/08 2Cressy

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283

DISCUSSION

1

nature of the assets.

If all the assets were about

2

particular (indistinct) that's real estate, that might be

3

different than if there was a business development,

4

things like that.

5HIS HONOUR:

Yes, anyway - - -

6MR DEVRIES:

But I'll be - I'll be - - -

7HIS HONOUR:

The judge has a discretion and really decides

8

between which is most appropriate, and you say in this

9

case I should really use a more global approach?

10MR DEVRIES:

Yes.

11HIS HONOUR:

Although, in a sense, I don't think either's

12

mutually exclusive of the other, is it?

13MR DEVRIES:

It isn't.

14HIS HONOUR:

You have to look at what each put into each

15

property, but you'd also stand back and have a look at a

16

global approach, for example, take into account

17

contributions that Mr Johnson made the will for the

18

family beyond material contributions.

19MR DEVRIES:

And that goes both ways in respect - - -

20HIS HONOUR:

I follow that.

21MR DEVRIES:

In respect to both aspects, both her - - -

22HIS HONOUR:

I follow.

23MR DEVRIES:

Homemaker and parent, and because my client will -

24

if you accept my client's evidence, she says that she

25

made some - - -

26HIS HONOUR:

She says she's - - -

27MR DEVRIES:

- - - meaningful contributions to the acquisition,

28

maintenance, conservation of a number of the properties,

29

albeit not all of the properties.

30 31

What Her Honour says is what Your Honour, with respect, has just said at 287.

1.LL:SK 11/12/08 2Cressy

FTR:29

284

Provided that Your Honour DISCUSSION

1

with respect chooses between the approaches or

2

acknowledges there's two approaches, and doesn't take the

3

view that there is only one approach.

4

that goes Your Honour.

5HIS HONOUR:

That's as far as

I think Her Honour, this is the judge in the

6

present case is required to choose, I query whether the

7

discrete categories of approach.

8

they are.

9MR DEVRIES: 10HIS HONOUR:

The Act doesn't say

With respect I think the way I've read that - - Take a look at your client - take your client's

11

evidence just for argument sake, you'd want a global

12

approach in terms of assessing her contribution to the

13

welfare of the house.

14

contributed to Mr Johnson's wellbeing, supported him

15

during his frantic lifestyle that enabled him to go out

16

and walk a financial tight wire and end up with seven

17

properties in his hand.

18

say, in addition - so that's sort of a global approach,

19

I actually made specific contributions to each property.

20

You'd probably want to say, well I

She would also want to probably

I don't see how you get a choice in that.

It seems

21

to me you've got to take all the contributions into

22

account and value them.

23

the evaluation, some are more specific.

24

I turned my expertise to getting these properties, to

25

doing some financial deals that I don't think that the

26

plaintiff would have the wherewithal to do.

27

was the one who clinched my credit - I was the one that

28

took the financial risk, paid the mortgages.

29

that stands to go bankrupt if all this comes unstuck.

30 31

Some of there are more global in Mr Johnson says,

That, and I

I'm the one

That's no doubt what he's going to be putting to me in his final address as his contribution.

1.LL:SK 11/12/08 2Cressy

FTR:29

285

Parts of that DISCUSSION

1

are global, some are property by property.

2

disagree with that?

3MR DEVRIES:

Do you

I will be submitting to Your Honour that it's more

4

appropriate for Your Honour to look at the contributions

5

that the parties have made to, if you like, the total

6

domestic relationship, including acquisition of

7

properties - acquisition of property maintenance,

8

property improvement of them, and then assess that as a

9

global figure, which is what ultimately, with respect,

10

Your Honour has to do at the end of the day anyway.

11

Having gone through the exercise of determining what the

12

contributions are, Your Honour has to with respect either

13

translate that to a global figure or translate it to what

14

Your Honour does on an asset by asset approach.

15 16

Your Honour, in this particular case there is no allegation of domestic violence.

17HIS HONOUR:

That cuts out a long part of Procepets judgment.

18MR DEVRIES:

It does Your Honour.

19HIS HONOUR:

I don't know if Mr Johnson's looking at the

20

judgment, but the reference of domestic violence is

21

that's because that's the next sub-heading in the

22

judgment Mr Johnson.

23MR JOHNSON:

Thank you Your Honour.

24HIS HONOUR:

Page 93 of the hard copy.

"Normally evaluate at

25

the time of trial", p.103 identified the three-step

26

process.

27

the property of the parties."

28

over that, "Secondly is the evaluation balancing the

29

respective contributions of the parties".

30

an anterior step to that in this case, that is whether

31

there was a domestic relationship and you say I'm wrong.

1.LL:SK 11/12/08 2Cressy

"First is the identification and valuation of

FTR:29

286

Yes.

Skipping lightly

There's really

DISCUSSION

1

So that's almost a threshold issue raised by Mr Johnson.

2MR DEVRIES:

Yes, it is Your Honour.

3HIS HONOUR:

I understand that.

4MR DEVRIES:

And also, can I say, with respect to step one, in

5

some cases there's also a requirement to identify the

6

property and then value it.

7

cases, need to determine what is the property, but in

8

this case I'd - - -

9HIS HONOUR:

The court may, in some

This case is pretty straightforward.

There were

10

at one stage seven properties in respect of which by your

11

amended claim you've asserted a claim, so we've been able

12

to identify them.

13MR DEVRIES:

Yes.

14HIS HONOUR:

It's a flying start, but that's about as far as

15

we've got.

16MR DEVRIES:

It is Your Honour.

17HIS HONOUR:

"Assessing the contribution of homemaker",

18

Paragraph 330.

19

family must be recognised, not in a token way, but in a

20

substantial way.

21

homemaking period should not be regarded as inferior to

22

the corresponding contribution of a spouse, nor should

23

contributions as a homemaker or parent be valued by

24

reference to the commercial value of those services".

25

They're all the principles, having read this fairly

26

quickly and fairly late last night, (indistinct)

27

relevant.

28

"Contribution to the welfare of the

Contributions of a de facto partner's

The issue of making the order, Paragraphs 342 and

29

following, and there's been a significant debate, but the

30

evidence of (indistinct) approach has been adopted by

31

Justice Neeve, which as I understand that approach is

1.LL:SK 11/12/08 2Cressy

FTR:29

287

DISCUSSION

1

your two focal points are the contributions, so

2

articulate s.285 that you do look at all the relevant

3

circumstances and Justice Neeve at p.349 identified in

4

that case what they were.

5

you, but that seems to me to be some of the principles I

6

was able to elicit from my reading last night.

7MR DEVRIES:

I've perhaps jumped ahead of

And also she got some of the decisions of single

8

judges of this honourable court which talk about looking

9

at the contributions in the total context of the

10

relationship, and context is something that His Honour

11

Justice Morris referred to, and that's quoted at

12

Paragraph 348.

13HIS HONOUR:

Yes.

A lot of that sprung from the original

14

decision in this – one of the original decisions by

15

Justice Vincent in (indistinct) case.

16MR DEVRIES:

And with respect, Your Honour, most decisions of

17

this court use that decision as the starting point and

18

there are two or three decisions where that's developed

19

and the appropriate - - -

20HIS HONOUR:

So you leave the contributions, but you don't

21

simply look at them and stand still there; you look at

22

them in the whole context of the relationship and

23

relevant factors that pertain to them.

24MR DEVRIES: 25

Yes, Your Honour, and that's what His Honour

Justice Vincent said in that case.

26HIS HONOUR:

At some stage you will need to identify what

27

factors you say would be relevant apart from his usual

28

contribution.

29MR DEVRIES:

Your Honour, the difficulty I have with going

30

further than this is that I have to wait till the

31

defendant has closed his case.

1.LL:SK 11/12/08 2Cressy

FTR:29

288

DISCUSSION

1HIS HONOUR:

No, that's all right.

That's all right.

2MR DEVRIES:

If I can just for the sake of Mr Johnson, Your

3

Honour, I provided him with a list of authorities which I

4

hope would be a fairly complete list of authorities of

5

this honourable court and - - -

6HIS HONOUR:

You handed one up to me early in the case.

7MR DEVRIES:

Yes, that's the same list I gave - - -

8HIS HONOUR:

Then you identified some of the cases that you

9

would rely on, Burns v. Chasen, Robertson v. Austin, and

10

Findlay v. Besley, were the three I noted that you said

11

you would place particular reliance on.

12

copies of those.

13MR DEVRIES: 14

I've got myself

The other one – well, it was Conn v. Matusevicius

obviously that refer to in each of those decisions.

15HIS HONOUR:

It's been referred to.

16MR DEVRIES:

And obviously I would have – if it hadn't been for

17

yesterday I would have referred to His Honour's decision

18

in Giller v. Procopets, but that's now been to some

19

extent overtaken by the Court of Appeal decision, except

20

I suggest to Mr Johnson that the Court of Appeal's

21

decision needs to be read in the context of His Honour's

22

decision because they haven't thrown the baby out with

23

the bath water, it's been a touching up of his decision

24

to some extent.

25

decision I'll be principally relying on is the one that

26

Your Honour has already - - -

And I haven't touched on trusts, but the

27HIS HONOUR:

Baumgartner, wasn't it?

28MR DEVRIES:

Baumgartner, yes.

29HIS HONOUR:

Which picked up what, I think, Justice Deane said

30

in – was it Muschinski v. Dodds?

31MR DEVRIES:

Yes.

1.LL:SK 11/12/08 2Cressy

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DISCUSSION

1

I can give the citation to Mr Johnson.

2HIS HONOUR: 3

Have you had access to them,

Mr Johnson?

4MR JOHNSON: 5

Do you have that?

I'm familiar with Baumgartner and Muschinski v.

Dodds, that's (indistinct) to me.

6HIS HONOUR:

Thanks, Mr Johnson.

7MR DEVRIES:

Also there were three Family Court decisions that

8

were in the list and they really relate principally to

9

what the court does if the court is satisfied there's

10

been material and non-disclosure of assets.

11

think, as things currently stand, that I'll be making a

12

song and dance about that.

13HIS HONOUR: 14

I will be talking about - - -

Don't worry about the entertainment, but will you

be giving – making a submission?

15MR DEVRIES: 16

I don't

My present thinking on that is that I won't be.

I'm just looking at my list of these decisions.

17HIS HONOUR:

So I said yesterday, I don't think I'll get much

18

help from going through other decisions on their facts

19

and finding out what they did, and it's probably even

20

more unhelpful in this jurisdiction than being referred

21

to sentencing authorities and cases.

22MR DEVRIES:

Yes.

23HIS HONOUR:

And these cases fall clearly on known facts, but

24

if you have a contrary view - - -

25MR DEVRIES:

Can I say, Your Honour, it's only that the general

26

approaches that are helpful to Your Honour because every

27

single decision can probably be successfully

28

distinguished from every other decision on the facts.

29HIS HONOUR:

Yes.

30MR DEVRIES:

And as an example, a major difference in Giller v.

31

Procopets and this case is the length of the

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DISCUSSION

1

relationship.

And in that case the court found it was

2

highly significant that there was long delay between the

3

end of the relationship and the commencement of the

4

proceedings; that is not the case here.

5HIS HONOUR:

No, what - - -

6MR DEVRIES:

Well, sorry that would - - -

7HIS HONOUR:

What would be your submission in this case in

8

terms of what you will be seeking?

9

percentage before, I don't ask you to put a figure on it,

10

but will you be submitting that I should adjust the legal

11

interests in any of the properties, if there are any,

12

still owned by Mr Johnson, by a particular percentage and

13

declare that your client has a joint interest in them?

14

Should convey half of his legal estate, or a quarter of

15

his legal estate in them?

16MR DEVRIES:

You did refer to a

I'll be submitting to Your Honour that Your Honour

17

should declare that - the property should be divided this

18

way, that my client get's all of the net equity in

19

166 Queen Street, Altona.

20

title and interest in Hawkhurst Street gets transferred

21

to my client.

And, that Mr Johnson's right,

22HIS HONOUR:

Is she seeking the Altona and Hawkhurst Street?

23MR DEVRIES:

The proceeds of Altona, because I'm assuming

24

that - - -

25HIS HONOUR:

How much were they - you have no idea?

26MR DEVRIES:

I understand that's the one that's about $48,000.

27HIS HONOUR:

M'mm.

28MR DEVRIES:

I can flag this to Your Honour, that what I'll be

29

submitting - - -

30HIS HONOUR: 31

What's the value of what she's seeking in

Hawkhurst, cause of this, I have no idea.

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Absolutely no DISCUSSION

1

idea.

2

be worth nothing.

3MR DEVRIES: 4

Your Honour, I was going to cover that in my

submissions.

5HIS HONOUR: 6

She might be seeking properties worth $5m - might

I don't know how you can because there is no

valuation of Hawkhurst.

7MR DEVRIES:

We know the purchase price.

There are two ways of dealing with it Your Honour

8

and that is principally it would need to be sold in any

9

case.

Its what happens to the net proceeds and it's a

10

matter whether the net proceeds are divided on a

11

percentage formula or whether Your Honour takes the view

12

that I'm urging upon you, that Mr Johnson has already

13

received very clear amounts and there should be an

14

adjustment to my client taking that.

15

this to Your Honour, that it will be my case that

16

Mr Johnson - I'm fearful of going down this path until

17

Mr Johnson does.

18HIS HONOUR: 19

All I simply ask - I wasn't

asking for a submission - - -

20MR DEVRIES: 21

You don't have to.

If I can indicate

I was trying to help Your Honour, but I

think - - -

22HIS HONOUR:

The only help that it would be would be to have

23

some idea of the nature of the adjustment that you are

24

seeking.

25

nature of the adjustment you would be seeking is the

26

whole of the proceeds of the sale of Altona and the

27

Hawkhurst Crescent property be transferred to her.

It seems to me what you've flagged is that the

28MR DEVRIES:

Yes.

29HIS HONOUR:

I take it that's - is that the application you

30

will make?

31MR DEVRIES:

That will be the application and what I'll be

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DISCUSSION

1

submitting to Your Honour is that Mr Johnson has and will

2

retain the benefit of the proceeds of sale of Lisa Court,

3

the refinancing of Gibson Street.

4

Drive, Torquay - - -

He retains Endeavour

5HIS HONOUR:

The Point Cook properties.

6MR DEVRIES:

Point Cook, the motor vehicles and the proceeds of

7

sale of the motor vehicles and his superannuation.

8HIS HONOUR:

Right, anyway you've articulated that.

You've

9

heard my concerns about the vagueness of that, but you

10

may persuade me that there's sufficient specificity in

11

the evidence to enable me to do justice, doing the best I

12

can.

13MR DEVRIES:

Indeed Your Honour.

Obviously it may be less

14

difficult to Your Honour if, as it turns out we have to

15

go into February next year, which no one wants, but it

16

may - because of the way - - -

17HIS HONOUR:

I just can't see how it's going to work otherwise.

18

I'll hear - I don't know whether Mr Cockram's coming

19

tomorrow, then I hear the no case submission.

20

to rule on that.

21

rule on that probably on Monday.

22

here, but your instructor can be here and anything I do

23

won't affect your client.

24MS SOFRONIOU:

If I can't do it extempore, then I'd I know you won't be

Please the court.

25MR DEVRIES:

There will be - - -

26HIS HONOUR:

Sorry?

27MS SOFRONIOU: 28MR DEVRIES:

I've got

May it please the court. There may be one aspect in relation to that, that

29

may need to be drawn to Your Honour's attention.

30

instructor can do that and that's if my learned friend's

31

successful, what happens with respect to costs.

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293

But, my

But, I'm DISCUSSION

1

being obtuse and I'm - - -

2HIS HONOUR:

Lets just not - - -

3MR DEVRIES:

I'm anticipating what might happen, Your Honour, I

4

shouldn't do that.

5HIS HONOUR:

I don't know, but the reality is that I have a

6

timetable tomorrow.

I'll have the Mr Cockram, I'll hear

7

the no case submission.

8

I'll either deliver judgment on the spot or alternatively

9

I will reserve until hopefully deliver judgment early

Then, depending on how it goes,

10

next week.

11

unavailable the next three days and I don't - it's not

12

appropriate for me to come and go into this case.

13

That really eats the year out.

You're

It seems to me the benefit thing would be to put the

14

thing over.

15

status of these properties are.

16

difficulties communicating, but if the parties, in good

17

faith can each turn their minds to identifying what is

18

the status of their properties at the moment, in terms of

19

sale, about which I'm in a state of entire confusion.

20

And what might be the best orders to be made to prevent

21

damage to the parties interests.

22

I need to have some idea tomorrow what the I know the parties have

Actual potential in them, then I'd be amenable to

23

that application.

24

say, I have done my level best, more than that, to finish

25

this case this year, and I don't think there's any sense,

26

Mr Johnson, in you sitting there shaking your head after

27

what we've been through this week trying to keep you

28

relevant.

29MR JOHNSON: 30

Now, we've run out of time, and I must

We lost an enormous amount of time.

Your Honour, I wish we were at this point

12 months ago.

31HIS HONOUR:

Now, it seems to me the best thing to do is to

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DISCUSSION

1

face reality, and that is to try to identify what we do

2

in relation to your summons, which would protect your

3

interest in it.

4MR JOHNSON:

No, not any longer, Your Honour.

That summons

5

(indistinct) I wanted to point out that I will do

6

whatever I can to get this case closed tomorrow.

7

thinking Mr Cockram's evidence, if he even appears, may

8

be 15 minutes.

9HIS HONOUR:

I'm

My submissions may be an hour - - -

But I've got to hear - - -

10MR JOHNSON:

Yes, that's what I'm trying to work out - - -

11HIS HONOUR:

- - - because the 2nd and 3rd defendants to

12

counterclaim have not even decided whether they're going

13

to give evidence.

14MR JOHNSON:

They may call 28 witnesses.

Your Honour, my submission is effectively a no

15

case to answer to the plaintiff's claim, and all I'm

16

seeking on the counterclaim is costs against the - all

17

three defendants and the plaintiffs.

18HIS HONOUR: 19

Well, I think you missed the point.

Ms Sofroniou - - -

20MR JOHNSON:

I - - -

21HIS HONOUR:

- - - has - - -

22MR JOHNSON:

- - - the point, Your Honour.

23HIS HONOUR:

Sofroniou has foreshadowed, and even made

24

available to you a ruling, which I gave earlier this

25

year, which I set out the relevant principles in, that

26

before being required to signify whether she will call

27

witnesses to answer the allegations made against her

28

clients in an amended defence and counterclaim, she would

29

be submitting that there is no case to answer in respect

30

of the causes of action pleaded.

31

submission, that will mean the dismissal of the

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If I uphold that

DISCUSSION

1

counterclaim against her clients.

2

subject to whether I put her to (indistinct) evidence or

3

not, she may then seek to call witnesses.

4

If I don't uphold it,

Ordinarily a party, seeking to make an no case

5

submission, is put to the election, but there are

6

exceptions to that rule, two exceptions.

7

that party is facing allegations which are very serious,

8

such as fraud and the like, and the other exception,

9

we'll put it this way, it's less - the requirement to put

Firstly, where

10

a party to their election is less stringent where the

11

party is simply seeking to rely on an OK submission based

12

on the proposition of a hiatus in critical evidence, as

13

distinct from arguing the quality of the evidence.

14

Now, I understand that will be Ms Sofroniou's point,

15

which is a

little bit different to the case that I had

16

before me earlier this year, and I recall, may I stand

17

corrected, I think in that case I did not put the party

18

making the no case submission to the election in that

19

case, because it - the allegation against them was that

20

they had committed a criminal offence of arson, and it

21

seemed to me, in those circumstances, that they ought not

22

to be shut out should I take the view that there was a

23

case to answer.

24

activity against a solicitor, an admitted solicitor to

25

this court.

In this case, you have alleged criminal

26MR JOHNSON:

I - - -

27HIS HONOUR:

That he was acting in concert in a burglary, and

28

in those circumstances, no doubt, Ms Sofroniou will be

29

submitting to me she should be put to her election.

30MR JOHNSON: 31

Your Honour, I submit that I've alleged civil, not

criminal, misconduct.

1.LL:SK 11/12/08 2Cressy

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DISCUSSION

1HIS HONOUR:

You alleged a theft, and that Mr Hanlon was

2

intimately involved.

Now, if that means anything, in

3

terms of the law of tort, it means acting in concert.

4

The principles of acting in concert in tort are pretty

5

similar to those in crime, that effectively, if you are

6

right, if that allegation were made out, I would be

7

making the finding that Mr Hanlon had committed a

8

criminal offence, albeit that I'd be making that finding

9

on the civil burden - standard of proof, and cases such

10

as those, it is not uncommon for a judge not to put a

11

party to their election.

12

that - - -

Now, just educating you in

13MR JOHNSON:

I - - -

14HIS HONOUR:

- - - assist you.

15MR JOHNSON:

- - - Your Honour.

16HIS HONOUR:

Now, if that is right, and Ms Sofroniou fails in

17

her submission to me, then she may elect to call

18

evidence.

19

either way, then of course she won't be able to call

20

evidence, or won't be calling evidence.

If she succeeds, or if I put her to election,

21MR JOHNSON:

Your Honour, my - - -

22HIS HONOUR:

So we don't know how long, but I would suspect

23

that we will not finish all the submissions.

Mr Devries,

24

I suspect, has got a lot of matters he needs to put to me

25

in final address.

26MR JOHNSON:

I did estimate three to four weeks, Your Honour.

27HIS HONOUR:

Yes.

28MR JOHNSON:

I - - -

29HIS HONOUR:

- - - you've said that.

30MR JOHNSON:

- - - truncating, you know - - -

31HIS HONOUR:

You've said that.

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DISCUSSION

1MR JOHNSON:

- - - I believe I've truncated - - -

2HIS HONOUR:

I have made my comments here and in another place

3

about being told it was a two day case.

4MR JOHNSON:

Yes.

5HIS HONOUR:

And I have taken the steps to ensure that this

6

type of incident never occurs again, certainly with me.

7MR JOHNSON:

Yes.

8HIS HONOUR:

And hopefully no other judge who receives a case

9

on this basis.

10MR JOHNSON:

Yes.

11HIS HONOUR:

Now, having settled that, we'll simply do our

12

little best to get as far as we can tomorrow, that's all

13

we can do, but based on that, reality strikes, and that

14

is that we are very unlikely to complete tomorrow.

15MR JOHNSON:

M'mm.

16HIS HONOUR:

That will mean that you should turn your mind to

17

what orders you would ask to be made, sensible orders,

18

similar to those set out in your summons, to protect your

19

interest in the properties before the mortgagees take

20

matters into their own hands.

21MR JOHNSON:

I believe the mortgagees will hold out if I have

22

to inform them that there will be a judgment in late

23

February.

24HIS HONOUR:

Yes, well - - -

25MR JOHNSON:

We don't need anything as drastic as what I was

26

looking at.

27HIS HONOUR:

All right.

28MR JOHNSON:

Not knowing the trial had been set down in August

29

this year, Your Honour.

30HIS HONOUR: 31

All right, well, we'll proceed on tomorrow, and

that being the case - yes.

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298

Now, Exhibit 58? DISCUSSION

1MR JOHNSON: 2

Yes, I'll need to hunt for the rest of that

document this evening, Your Honour.

3HIS HONOUR: 4

No, well, just the document that I've so far

received is an exhibit.

5MR JOHNSON: 6

Would you kindly hand it over?

Yes, yes, that's right.

Yes, I will look at that

before I leave, Your Honour.

7HIS HONOUR:

I'm sorry?

8MR JOHNSON:

Yes, I will look for that before I leave - - -

9HIS HONOUR:

Mr Richards has other matters to attend to.

10MR JOHNSON:

Yes, exactly, Your Honour.

11HIS HONOUR:

Other work to do so - - -

12MR JOHNSON:

It should be - - -

13HIS HONOUR:

I would ask you now to hand it back over to him.

14

You took out of custody an exhibit of this court.

15

evidence in this court.

16

I think your side might be able to make up the deficit in

17

the exhibits?

18

difficulties.

19MS SOFRONIOU:

It's

Well, the alternative may be but

Mr Johnson seems to have some

20HIS HONOUR:

Certainly, Your Honour; 58. Here it is.

21MS SOFRONIOU:

It's found.

22HIS HONOUR:

Thank you.

23MR DEVRIES:

If Your Honour pleases.

24MS SOFRONIOU:

Now, 9.30 tomorrow morning.

If it please, Your Honour.

25ADJOURNED TO FRIDAY 12 DECEMBER 2008

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DISCUSSION