Brothelgate Day 7 Pm
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- Words: 18,289
- Pages: 61
1
(Kaye J)
2UPON RESUMING AT 2.14 PM: 3HIS HONOUR:
Mr Johnson has not made it back to court yet.
4MR JOHNSON:
Your Honour.
5HIS HONOUR:
The witness box, thanks.
6
Your Honour, may I firstly explain why I am late to
8
court at this moment.
I have organised for Mr Thompson
9
to file and for one of his people to serve Mr Wittekind
10
on the basis he is subpoenaed to attend Your Honour's
11
court at 9.30 tomorrow morning.
12
those documents if Your Honour or my learned friends are
13
interested in a copy.
14HIS HONOUR:
I had unsealed copies of
If you will just hold them there.
You are at the
15
moment in cross-examination?---Yes, Your Honour, I have
16
not had time to eat other than a small piece of fruit and
17
I do need to visit the bathroom, Your Honour, I'm sorry.
18My staff contacted you about an hour ago about going to the 19
Registry to have the subpoena issued?---And it has taken
20
that long and I contacted your Tipstaff, Your Honour, and
21
said I could be five minutes late.
22My staff were told that the Registry had not sighted you here 23
at all?---I had to walk to Mr Thompson - - -
24You have five minutes.
Stand the matter down for five minutes.
25<(THE WITNESS WITHDREW) 26
(Short Adjournment)
27HIS HONOUR:
Mr Devries?
28MR DEVRIES:
May it please Your Honour.
Mr - if Mr Johnson
29
could be shown this document, it's a redirection advice
30
for mail from 166 Queen Street.
31
handwriting, Mr Johnson?---Yes, it is, Mr Devries?
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73
Is that in your
JOHNSON XXN
1And it seeks to readdress mail for James Johnson and James 2
Sutton, amongst others, doesn't it?---It does.
3
mistake with that last part, Mr Devries.
There's a
4It's in your handwriting, signed by you, and it seeks to 5
readdress - readdress mail for you from 166 Queen Street,
6
Altona, is that correct?---Yes, it does.
7What date did you seek to have the mail readdressed from? 8
---This particular application is dated 25 September
9
2007.
10Yes?---No, sorry, it was signed by me on 19 September 2007. 11I tender it, Your Honour?---May I have a copy, please? 12HIS HONOUR: 13
In due course.
Exhibit O - - -?---Your Honour,
may - - -
14I'm describing an exhibit, Your Honour, you don't (indistinct). 15 16#EXHIBIT O Application to redirect mail signed by 17 Harold Johnson dated 19/09/07. 18MR DEVRIES:
Your Honour pleases?---Your Honour, might I be
19
excused from the box just to get my pad that I was
20
writing notes on?
21HIS HONOUR:
Yes?---Thank you, Your Honour.
22MR DEVRIES:
For Your Honour's assistance, I'm now turning to
23
Exhibit 47, this is the income tax return for Mr Johnson
24
for the financial year of 1 July 2000 to 30 June 2008?
25
---Forgive me, Your Honour, I'm still looking
26
(indistinct) notepad this morning.
27
Honour.
28MR DEVRIES: 29
I've found it, Your
I do apologise to everyone. Perhaps you can let us know when you're ready,
Mr Johnson?---I shall, Mr Devries, thank you.
30What are you writing down, Mr Johnson?---That there's an 31
exhibit, "O", mail redirection, Mr Devries.
32
apologise to my learned friend, I'm ready for more
1.LL:SK 10/12/08 2Cressy
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74
Thank you, I
JOHNSON XXN
1
questions.
2HIS HONOUR:
Can I just ask you this, when you sign a tax
3
return, you're aware of your obligation to ensure that
4
every statement contained in it is true and correct, is
5
that right?---Yes, Your Honour.
6Yes, and that's not just simply statements relating to your 7
financial affairs, but everything that's contained in
8
your tax return has to be true and correct, doesn't it?
9
---I believe so, Your Honour, yes.
10Yes?---Yes. 11And so when you signed your tax returns, you always sign them, 12
I take it, in the - doing your best to ensure that every
13
detail on them relating to you or your financial affairs
14
is true and correct?---Yes, my tax agent would prepare
15
them, print a copy for me, I would sign one or two pages,
16
and they would be submitted electronically.
17Yes?---Yes, Your Honour. 18(Indistinct) something with your individual tax return for the 19
year 2005, please, it's taken from Exhibit 5, that's a
20
copy of your tax return for that year?---Yes, Your
21
Honour.
22Yes, describes your home address at that time as 2 Dorrington 23
Street?---It does, Your Honour.
24Is that true?---It was the address of a home that I owned at 25
that time - - -
26No, that's not the question I asked you, was that true?---Was I 27
residing at that address?
28No?---When I signed - - 29No, was your statement as to your home address there true?---I 30
was living at that address when I signed - - -
31You were living there?---I was not living at that address when 1.LL:SK 10/12/08 2Cressy
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75
JOHNSON XXN
1
I signed this form.
2Was that untrue?
Would you prefer not to answer that, would
3
you prefer not to answer that question?---I considered
4
this and the cautions you gave me yesterday - - -
5Yes, well, I won't - - -?---- - - irrelevance - - 6I won't insist on an answer on the basis it may incriminate 7
you?---Also to relevance, Your Honour, I think - - -
8It is relevant, it's entirely relevant. 9MR DEVRIES: 10
Your Honour?
11HIS HONOUR: 12
Could I have a look at it for a moment, please, Sorry, has Your Honour completed your - - -
Yes?---Sorry, Your Honour, may I ask on what basis
Exhibit O was tendered?
13You identified it as your signature, Mr - - -?---Was it 14
tendered as to relevance?
15Yes?---Or as to credit - - 16Relevance.
I received it as to relevance?---I submit that
17
should have been tendered as part of the plaintiff's case
18
so that I could have the opportunity to cross-examine her
19
on that document.
20The plaintiff is entitled to enter documents through you?---I 21
believe I should be entitled to cross-examine the
22
plaintiff as to how she obtained the document, given that
23
it's dated 19 September 2000 and - - -
24Well, you can make a submission to that effect later?---Thank 25
you, Your Honour, that - - -
26You can make a submission to that effect later. 27
you are being cross-examined by Mr Devries.
28(CNP Thank you, Your Honour. 29
MR DEVRIES:
Have you got a )
?---Thank you, Your Honour.
30MR DEVRIES: 31
At the moment,
Now, do you have a copy of your 2007/2008 income
tax return in front of you, Mr Johnson?---I do,
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JOHNSON XXN
1
Mr Devries.
2I note that this document is not signed by you?---That is 3
correct; this copy is not signed, Mr Devries.
4Have you signed an identical version of that return?---As I 5
just explained to His Honour - - -
6No, no, just answer yes or no, Mr Johnson?---I will have signed 7
one or two pages for my tax agent, who has then lodged
8
this electronically.
9You're required to sign every page, aren't you?---I have never 10
– sometimes a bank will request that as part of due
11
diligence – no, I didn't – I've never signed every page.
12
The lodgements are electronic, I just sign the pages the
13
tax agent wants so that they're satisfied they've got all
14
the (indistinct) to lodge electronically.
15
two or three pages.
16So you've only signed two or three pages?
I might sign
Are you saying to
17
His Honour that every one of these pages of this document
18
is true and correct?
19
the answer to that question?---There is one – there is
20
one aspect that I realise now is not correct, so I do
21
need to file an amendment before April/May 2009.
It's your document, you should know
22Which part is not correct, Mr Johnson?---I haven't brought into 23
account the disposal of the Lisa Court property, there
24
would be a small capital gain there.
25
the outcome because it would be offset against staggering
26
net tax losses.
It's irrelevant to
27So apart from the absence of reference to Lisa Court being 28
sold, this Individual Tax Return, you say, is true and
29
correct in every respect?---Yes, it meets the
30
requirements of the income tax legislation.
31Are the contents of that document factually true and correct in 1.LL:SK 10/12/08 2Cressy
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77
JOHNSON XXN
1
every respect, Mr Johnson?---Subject to the above two
2
answers, yes.
3You're not prepared to give me an unqualified answer to that 4
question?---Yes, except I haven't brought into account
5
the disposal of Lisa Court and capital gains implications
6
thereof.
7And that discloses, does it not, that your income from your 8
business was a minus figure?---For the tax year beginning
9
1 July 2007 and ending 30 June 2008, yes, that's right;
10
my business expenses exceeded my income from that
11
business by a significant amount.
12What were your business expenses for that year?---The usuals, I 13
was still locked in - - -
14No, just the amount, not - - - ?---May I read off the document? 15No, just give us the figure, please?---I can't without reading 16
off the document.
17HIS HONOUR:
He may refer to the document.
18MR DEVRIES:
You can look at the document, but just give us the
19
figure.
20
Your Honour's territory.
21WITNESS: 22
I'm sorry, Your Honour, if I trespassed onto
Total expenses are showing up at 110,265 for the
business.
23MR DEVRIES:
So your gross income from your business was
24
190,000 for that year?
No, sorry, 30,000?---No, it's at
25
the bottom of that page, Mr Devries - - -
26No, just – this is - - - ?---It's minus 82,000. 27
Net income or
loss from business for this year, it's a loss of 82,286.
28So if your income from your business was 110,000 - - - ? 29
---No, no.
30Your expenses were 110,000?---Yes. 31Of which - - 1.LL:SK 10/12/08 2Cressy
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78
JOHNSON XXN
1HIS HONOUR: 2
Your business income was 28,250?---Yes, Your
Honour, that's correct.
3It's on Line J. 4
It's the fourth page on the document.
See
"Non primary production, 28,250".
5MR DEVRIES:
I'm indebted to Your Honour.
6HIS HONOUR:
"Total expenses, 110,265", that gives him a loss
7
of 82,286.
8MR DEVRIES: 9
please?
Your Honour, could I have a look at Exhibit N, N for Nelly.
10HIS HONOUR:
North.
11MR DEVRIES:
Sorry, I refuse to be military.
(To witness) How
12
do you equate 28,250, Mr Johnson, with 240,000 gross?
13
---As I said, that 240,000 is a historical figure that
14
probably was out of the 2004 or 2005 tax return.
15
no relevance – the banks always look at your last lodged
16
tax return, they like to see your bank statements - - -
It bore
17You're giving – at the moment - - - ?---I'll address it in 18
re-examination.
19At the moment you are giving hearsay evidence - - - ?---I can't 20
reconcile because - - -
21You can't reconcile it?
Now, I presume, too, that as a result
22
of this tax return – Your Honour, the other tax return
23
will be returned in a (indistinct).
24HIS HONOUR:
You want to hang on to that?
25MR DEVRIES:
Just for a few moments, Your Honour.
26HIS HONOUR:
That's all right, yes.
27MR DEVRIES:
I presume as a result of that individual tax
28
return, Mr Johnson, you won't be paying my client any
29
child support for the foreseeable future?---Your Honour,
30
my legal child support obligations – Mr Devries, need to
31
be recalculated by the Child Support Agency based on my
1.LL:SK 10/12/08 2Cressy
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79
JOHNSON XXN
1
current income.
2
historical (indistinct).
3
recalculation.
4
requirement.
5
forum I can do it, for DNA paternity testing for Illyana
6
just so that I know - - -
7HIS HONOUR:
That is current income.
It's not
I'm not aware of any recent
I have never paid bare minimum legal I will be asking, because this is the only
Let's just stay away from that because that has
8
got nothing to do with the question you've just been
9
asked, and I consider your answer evasive?---Am I a
10
delinquent who won't pay his legal obligations of child
11
support - - -
12That wasn't the question either?---OK, but I will meet my 13
obligations.
14The question put to you is, will you be paying child support? 15
---According to my legal obligations, yes, I will.
16You have the financial capacity to pay?---I have had no income. 17
I have no earnings since 1 July 2008, Your Honour.
18
child support purposes I'm deemed to have an income equal
19
to the - - -
20I'm not interested in that question.
For
I just asked you a very
21
short question and you - - -?---I think it's (indistinct)
22
the question.
23The question was will you be paying child support?---When I 24
have a legal obligation to do I shall, Your Honour.
25MR DEVRIES:
Your expectation is that as a result of this
26
income – the lodgement of this income tax return your
27
child support will be reassessed back to zero for that
28
financial year and the current financial year isn't it?
29
---I am horrified - - -
30Just answer the question, please?---I am horrified that I've 31
not been able to pay any child support to Julie Johnson
1.LL:SK 10/12/08 2Cressy
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80
JOHNSON XXN
1
since early June this year.
2
Child Support Agency deems me to have an income of
3
$80,000.
4HIS HONOUR:
I am horrified that the
Your emotions in relation to all that are
5
irrelevant.
You have deliberately refused to answer
6
questions over the last five minutes.
7
---The questions are making vile accusations as to my
8
character.
Now - - -?
9Mr Johnson, you have an obligation to answer questions 10
directly.
An evasive witness can be dealt with.
11
not wish to even make that threat at the moment, but
12
don't put me in a position where it's necessary for me to
13
do so in order to expedite this case?---I'll - - -
14Just behave yourself.
I do
You're an officer of this court you keep
15
reminding me.
16
not assisting your case at all with this behaviour.
17
listen to the question and answer it.
18MR DEVRIES:
You're doing yourself no good and you're Now,
Mr Devries.
Your expectation, Mr Johnson, is that as a result
19
of the lodgement of this tax return you'll be assessed to
20
pay my client no child support for the financial year
21
covered by your tax return, and for the current financial
22
year isn't it?---No.
23Are you serious in that answer, Mr Johnson? 24HIS HONOUR: 25WITNESS: 26
That's not a proper question.
I would love the liberty to explain my answer but
I'll do that in re-examination.
27MR DEVRIES:
Mr Johnson, when was the last time you paid my
28
client child support?---The last time I gave her cash
29
would've been in August 2007.
30Was that child support or support for her or was it overdue 31
wages?
What was it characterised by you as?
1.LL:SK 10/12/08 2Cressy
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JOHNSON XXN
1
---Characterised by me as moneys that Ms Cressy would
2
have available to support the children together with any
3
financial benefit she was getting from the government,
4
together with living rent free in the house at Altona.
5
So that she had sufficient means as single mum, while we
6
sorted out this mess, to maintain the children without
7
having to resort to prostitution which to my knowledge
8
she - - -
9HIS HONOUR:
How much did you pay to her at that time?---This
10
would've been a thousand dollars exactly, less the cost
11
of the mobile phone and the house phone at the Altona
12
property.
They were phones of mine.
13How much cash did you hand to her?---Zero, Your Honour. 14
I will
have deposited that into her bank account.
15How much did you deposit into her bank account?---It would've 16
been a thousand dollars less whatever the latest monthly
17
phone bills were for those two phones, so I'm guessing
18
somewhere - a bit more than $800, Your Honour.
19Sorry?---A bit more than $800 I guess. 20Until then had you been paying moneys to Ms Cressy for her 21
support and for the children?---Until then I'd been
22
giving Ms Cressy moneys since even before Illyana was
23
born.
24MR DEVRIES:
This income of $28,000 is that commensurate with
25
your present level of income, or has your income gone up
26
or down since the end of the last financial year?---My
27
present – my present business income for this half
28
financial year 1 July 2008 to to date is zero.
29
some running down expenses I believe I'm entitled to
30
claim because I have an expectation of earning
31
(inaudible) due course, but the actual figure if I was to
1.LL:SK 10/12/08 2Cressy
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82
I have
JOHNSON XXN
1
prepare this return today as at 1 July 2008 to this
2
period ending today the figure in Item J would be zero.
3That's going to be the figure for the foreseeable future isn't 4
it, Mr Johnson?---No, Mr Devries.
5
the New Year, and especially if His Honour gives a
6
judgment before Christmas I can get this monkey off my
7
back and I can start earning in the order of - - -
8HIS HONOUR: 9 10
I'm hopeful early in
The chances of giving a judgment before Christmas
are receding every time you give an evasive answer - - -? ---The quality - - -
11- - -just prolonging this case?---The quality of my earnings 12
from the start of next – the start of the next calendar
13
year will depend substantially upon whether I'm an
14
undischarged bankrupt or not.
15
undischarged bankrupt I will be commensurate with what I
16
was earning in my business, but obviously I'm starting
17
from zero.
18
undischarged bankrupt I understand I – my options are to
19
work as an employee so I will be earning a fraction of
20
what I could earn as a principal of a firm.
21MR DEVRIES: 22
Provided I'm not an
I've got to ramp up again.
As an
Sorry, as an undischarged bankrupt?---Yes,
Mr Devries.
23HIS HONOUR:
I think you've missed about three quarters of his
24
answer, you heard a lot, but you missed about three
25
quarters.
26MR DEVRIES:
Are you anticipating becoming an undischarged
27
bankrupt, are you?---I'm doing everything possible to
28
avoid that, Mr Devries, I should be patently aware from
29
the life of these proceedings - - -
30HIS HONOUR: 31
The long and rambling answer, I think, is
foreshadowing what might happen if you become a bankrupt
1.LL:SK 10/12/08 2Cressy
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83
JOHNSON XXN
1
and wasn't discharged.
2MR DEVRIES:
And you're going to do that to try and frustrate
3
any judgment that my client gets in her favour from His
4
Honour?
5
they're vile accusations, Your Honour, not a question.
I say that with respect, Your Honour?---I think
6Your Honour, I wouldn't have asked those questions, except for 7
a couple of things I've gleaned on a quick reading
8
of - - -
9HIS HONOUR: 10
isn't it, Justice Neeve.
11MR DEVRIES: 12
Yes, it's around about Paragraph 272 or something,
I think it might be around about p.120 or
thereabouts, Your Honour.
13HIS HONOUR:
Yes, I saw it too.
In other words, contrary to
14
the current flow of authority, the Court of Appeal now
15
say that what - post relationship contributions are
16
relevant.
17MR DEVRIES:
Certainly in the context of (indistinct).
18HIS HONOUR:
I understand that.
19MR DEVRIES:
Yes, and on that basis, Your Honour, what I put to
20
Your Honour, and (indistinct) has now changed.
21HIS HONOUR:
I follow that.
22MR DEVRIES:
Yes, thank you.
23HIS HONOUR:
Because I think the situation might be important.
24MR DEVRIES:
Yes.
25HIS HONOUR:
Whatever it was, but we have to cope with that,
26
but it seemed to me you probably already dealt with it.
27MR DEVRIES:
Yes, yes.
28HIS HONOUR:
Your client's got the children.
29MR DEVRIES:
Yes.
30
There is only one other matter that will
arise out of that, Your Honour, which - - -
31HIS HONOUR:
Anyway, you're still cross-examining Mr Johnson.
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JOHNSON XXN
1MR DEVRIES:
Yes.
2HIS HONOUR:
It's best we try and get that done.
3MR DEVRIES:
I was going to say, I'm moving onto another
4
subject that arises out of that.
5HIS HONOUR: 6
(Indistinct) Ms Sofroniou, if it did help you,
you're entitled to use the jury box if - - -
7MS SOFRONIOU: 8HIS HONOUR:
Your Honour. - - - face that way, you're comfortable there?
9
For the transcript, Ms Sofroniou has been alternately
10
standing and sitting because she has a very bad back,
11
with which I sympathise.
12MR DEVRIES:
I'm sorry, Your Honour.
You recall that letter
13
that was tendered yesterday, which was the letter from
14
your employee, Exhibit J, Your Honour?---Yes, Mr Devries.
15Your tax return is not consistent with the contents of that 16
letter either, is it?---I will say that the tax return
17
was prepared a good six months after that letter was
18
prepared, and on grounds of relevance and also having
19
regard to the cautions His Honour spoke to me yesterday
20
afternoon, I declined - - -
21HIS HONOUR:
It is relevant, but I will permit you to take the
22
privilege against self-crimination?---Except to the
23
extent I wish to come back with some comments in re-
24
examination, to the extent that I had already answered
25
that question to some degree yesterday afternoon.
26Well, to the extent that you answered, you may give evidence in 27
re-examination.
If you go beyond that, then it opened -
28
you waived the privilege, and that opens cross-
29
examination, so you'll have to tread wearily?---I'm
30
indebted, Your Honour.
31Because it's a privilege for you to waive, so you'll need to 1.LL:SK 10/12/08 2Cressy
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85
JOHNSON XXN
1
take care not to waive it.
Bear in mind that I cannot
2
draw any adverse inference against a witness who takes
3
the privilege against self-incrimination, do you follow
4
that?---Thank you, I wasn't aware of that, Your Honour.
5And it's a principle of law?---Thank you. 6Because it's a basic common law right we (indistinct). 7MR DEVRIES:
You are aware, aren't you, that pursuant to orders
8
of this honourable court, my client was given occupancy
9
of 166 Queen Street, Altona?---Not exactly, Mr Devries.
10No?
OK, not exactly?
I've mislaid some documents, Your
11
Honour.
You consented, didn't you, to an order of the
12
Federal Magistrates Court made on 26 September 2007, to
13
the effect that my client and the children shall reside
14
at 166 Queen Street, Altona?---Not exactly, Mr Devries.
15Order 19 says, "The mother and the children shall reside at 16
166 Queen Street, Altona, do you agree that that's the
17
order, that's that order"?
18
down to tell me whether you agree or not, Mr Johnson?
19
---Yes, that's the order, Mr Devries.
You don't need to write it
20And those were consent orders?---Those were consent orders, 21
Mr Devries.
22And you had counsel appearing for you on that occasion?---Yes. 23And are you suggesting that Order 19 is not an order with which 24
you agree?---No, I'm saying two things, firstly that
25
there's an order that I sought in my application, I
26
sought that order, Ms Cressy consented to it.
27
of a nonsense to say that I consented to an order I was
28
seeking in my own application, Mr O'Dwyer's jurisdiction,
29
and I say secondly, Ms Cressy did not gain occupancy of
30
the premises by virtue of my application or that order,
31
she had been in occupation since 2006, at my permission,
1.LL:SK 10/12/08 2Cressy
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86
It's a bit
JOHNSON XXN
1
I granted her occupancy of the premises, not any court
2
process, Mr Devries.
3From 26 September 2007 she was supposed to have occupancy, with 4
the children, of 166 Queen Street, Altona, wasn't she?
5
---That was the gist of my application - - -
6Yes, and thereafter you took every step you could to frustrate 7
that order and to force her and the children to have to
8
move from residence to residence, didn't you?---They are
9
vile statements and they are incorrect.
10Well, on 5 November 2007 you wrote to Mr Hanlon, didn't you, 11
and said, "I wish to assure Ms Lonergan, Miss Delanthy
12
and yourself in the clearest possible terms that I have
13
no desire or intention of commencing any steps to have my
14
daughter, Illyana, or her half-brothers, Skye and Treece,
15
or her mother, Pippin, evicted from the premises at 166
16
Queen Street, Altona.
17
wrote two letters to Mr Hanlon on that date.
The suggestion is abhorrent"?---I
18Did you write those words, Mr Johnson?---I did write those 19
words and the word "conundrum" in the next paragraph.
20Thank you, you've answered my question now, Mr Johnson.
I
21 tender that, Your Honour. 22 23#EXHIBIT P Letter from the defendant to 24 Mr David Hanlon of Harwood Andrews Pty 25 Ltd dated 05/11/07. 26MR DEVRIES:
And then after that you proceeded to attempt to
27
see the property, didn't you?---I received no response
28
from David Hanlon to that letter and I entered into a
29
contract of sale of the property.
30
going to be able to complete that sale, I had no idea at
31
that stage, but I set up that possibility.
Whether or not I was
32So notwithstanding the court order, that you said to His Honour 33
you proposed that you were in agreement with, the court
1.LL:SK 10/12/08 2Cressy
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87
JOHNSON XXN
1
made at the end of September, 26 September 2007, and your
2
letter of November to Mr Hanlon assuring him and my
3
client that you would not do anything to have my client
4
moved from 166 Queen Street, Altona, you signed a
5
contract of sale of that property on or about 24 December
6
2007, didn't you?---Mr Devries, my evidence on this point
7
hasn't and can't change from when we discussed this
8
before Justice Cavanough in the Practice Court on 20
9
June.
10His Honour is not Mr Justice Cavanough - - - ?---And when 11
myself and Dr Ingleby it before Justice - - -
12HIS HONOUR:
Mr Johnson, your answer is unresponsive.
The fact
13
is, as you've already tendered, you signed a contract of
14
sale on the property at 166 Queen Street, Altona on
15
24 December 2007, is that right?---Yes, sir.
16You've told me that settlement of that property was due in, I 17
think, February 2008, is that right?---Yes, Your Honour.
18I take it, it was a term of the contract of sale that you would 19
give vacant possession to the purchaser on that date?
20
---And that the purchaser's caveats and the Harwood
21
Andrews – no, the purchaser's caveat would be removed,
22
there was - - -
23Do you agree with what I put to you?---Totally, Your Honour. 24MR DEVRIES:
And as a result of correspondence from you to the
25
mortgagee, the mortgagee took possession of those
26
premises on or about 21 January this year.
27
correct, isn't it?---Totally incorrect.
That's
28Well, as a result of your letter they sought possession, we had 29
proceedings in this honourable court, isn't that correct?
30
And my client was forced to move to another of your
31
properties, isn't that correct?---Your Honour, the
1.LL:SK 10/12/08 2Cressy
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88
JOHNSON XXN
1
questions are skipping, I can't give - - -
2HIS HONOUR:
There are some questions in that.
Perhaps a more
3
important one is a factual question; I take it that in
4
January of 2008 the plaintiff was required to vacate
5
Queen Street?
6MR DEVRIES: 7
as a result of correspondence from Mr Johnson.
8HIS HONOUR: 9
She was given a notice to quit by the mortgagees
Yes.
Well, don't worry about the result - - -?
---I am not aware of that document.
10Yes, but you understand that she left in January 2008?---I 11
understand that she didn't, and I believe that's not
12
contested.
13She did or did not?---She did not. 14MR DEVRIES:
She left a bit later than that, Your Honour.
15HIS HONOUR:
When did she leave?
16MR DEVRIES:
About June 2007.
17HIS HONOUR:
Eight?
18MR DEVRIES:
2008, I'm sorry, Your Honour.
19HIS HONOUR:
Is that right?---A bit later, we're talking
20
January, Your Honour, now we're talking June, a bit
21
later.
22Yes, well I understand the difference between the two months. 23
Is it common ground that the plaintiff left the Queen
24
Street property in June 2008?---Yes, Your Honour.
25And that would be common ground that that was as a consequence 26
of action taken by the mortgagee?---No, Your Honour, that
27
was action taken by the plaintiff's application that was
28
heard before Justice Cavanough and the orders that
29
Mr Justice Cavanough made on or between 20 June this year
30
and 21 July this year.
31MR DEVRIES:
That is not quite accurate, is it?
1.LL:SK 10/12/08 2Cressy
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89
The mortgagee JOHNSON XXN
1
attended, the mortgagee had their own representation, the
2
mortgagee had their own representation and as a result of
3
the position the mortgagee was in, which emanated from
4
your letter, the mortgagee was given possession by His
5
Honour so it was given – orders giving the mortgagee
6
possession of those premises.
7
is something I didn't understand because the orders
8
Justice Cavanough made were orders against a non-party in
9
the proceedings and - - -
10HIS HONOUR: 11
Isn't that correct?---That
It doesn't matter whether you understand it or
not, were those orders made?---Yes, Your Honour.
12The orders are part of the record anyway, Mr Devries. 13MR DEVRIES: 14WITNESS: 15
Yes.
It's a possibility that Your Honour indicated on the
first day the trial was impossibility, I think.
16HIS HONOUR:
Sorry?---I believe in – you said in the first day
17
of the trial that it's impossible to make orders against
18
a non party.
19I didn't say that?---My memory must be wrong Your Honour. 20Just stick to the point would you please. 21MR DEVRIES:
As a result of that tune the children had to move
22
to Dorrington Street, that's correct isn't it?---Justice
23
Cavanough's fitted orders evicting me from Dorrington
24
Street, banning me from speaking or dealing with the
25
mortgagee.
26HIS HONOUR: 27
Did you leave Dorrington Street at that point?---I
did but - - -
28Did the plaintiff move in?---Yes pursuant to the orders - - 29Thank you, that’s all we need?--- - - - that Justice Cavanough 30
made.
31MR DEVRIES:
Order 6, Your Honour, of the orders made by His
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90
JOHNSON XXN
1
Honour on 20 June 2008.
2HIS HONOUR:
Yes.
3MR DEVRIES:
You are aware that my client has now located to
4
Dorrington Street with the children?---I became informed
5
of that fact when your client gave her evidence-in-chief.
6You're currently aware of that, aren't you?---I think I 7
answered that question, yes.
8HIS HONOUR: 9
Remind me of the date of that again Mr Devries,
what date did your client leave?
10MR DEVRIES:
It's within the last two weeks Your Honour.
11HIS HONOUR:
That's right?---Excuse me, Mr Devries, the
12
plaintiff still has possession and keys and her things at
13
the house, so I believe in that sense she might not be
14
residing there but she still has possession of the
15
property based on her testimony, Your Honour.
16She and the children have vacated those premises, Mr Johnson, 17
haven't they?---I can only rely on your client's
18
evidence-in-chief, Mr Devries, that's the only
19
information I have on the point.
20When you refinanced Gibson Street, you refinanced from a 21
mortgage in which the liability was a little bit less
22
than $400,000 to a liability of approximately $507,000,
23
isn't that correct?---In the broad brush, yes, I don't
24
recall the exact amount of the loan but it would have
25
been 90 per cent of the valuation which I think was
26
600,000 in bank valuation so that would give it a 540,000
27
and presumably the other 30,000 was - if that figure is
28
correct - was the mortgage insurance capitalised in, so
29
the number sounds about right Mr Devries.
30You applied some of the proceeds to the purchase of a another 31
property, is that correct?---Yes.
1.LL:SK 10/12/08 2Cressy
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91
JOHNSON XXN
1You pocketed some of the proceeds?---Mr Devries, I have given 2
you in the other jurisdiction a copy of my bank statement
3
showing the dispersal of those moneys out of my
4
Commonwealth Bank account where they were put, the
5
balance of the borrowings by the Commonwealth Bank early
6
in January this year.
7
the other jurisdiction.
You have that information, sir, in
8His Honour doesn't have that information and I don't have that 9
information in this jurisdiction, Mr Johnson, so perhaps
10
you would like to answer the question?---You are entitled
11
to tender that information, Mr Devries.
12HIS HONOUR: 13
Ask the question again, I'm sorry, I was
distracted.
14MR DEVRIES:
How much money did you pocket as a result of the
15
refinancing of Gibson Street?---I won't take issue at the
16
word "pocket", I think after the two financings were done
17
there was a net figure of about 80,000 banked into my
18
Commonwealth Bank account.
19You used the rest of the money to either improve your equity in 20
the other property or - sorry, that was in Endeavour
21
Drive or to reduce other liabilities of yours, didn't
22
you?---I used the rest of the money for many things,
23
including to repay short term borrowings I borrowed over
24
the previous quarter, trying to keep up all of my
25
mortgage payments up to date, child support payments for
26
Mrs Johnson as well as covering expenses of Ms Cressy's
27
that I was still paying at that time.
28Breese Street, you say that you have an equity of $1000 in each 29
of those properties?---I said that on a principal - - -
30Is that right?---I said on a principal - I think I said Calder 31
or Mead, but they were economists - funny what the memory
1.LL:SK 10/12/08 2Cressy
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92
JOHNSON XXN
1
does.
2
Lysaght v. Edwards 1867 - - -
3HIS HONOUR:
What I meant to say was on the principal of
We don't need the citation and you know that?
4
---499 - when I signed those contracts and put down my
5
$1000 deposit on each, I had a secured enforceable right
6
to the contracts.
7
lost.
8
signed, nothing for those properties except a bit of
9
mucking around with deposit bonds.
10MR DEVRIES:
I believe that opportunity has been
I have had nothing touched, nothing heard, nothing
You have had paid on your behalf a deposit of
11
$25,000 in respect of each of those two properties,
12
haven't you?---These are deposit bonds that the
13
Commonwealth Bank did.
14Would you like to answer my question Mr Johnson, you have had 15
paid on your behalf a deposit of $25,000 in respect of
16
each of those properties, that's correct isn't it?---No,
17
it's not correct Mr Devries.
18Or very close - or $23,250 for one property and $22,730 in 19
respect of the other property, that's correct then isn't
20
it?---That is not correct, Mr Devries, that is not how
21
deposit bonds worked.
22You have provided a guarantee of the deposit of $23,250 for one 23
property, Unit 27, and $22,730 in respect of Unit 6,
24
haven't you?---No, I've not provided any bank guarantee,
25
my bank provided the bank guarantee.
26HIS HONOUR:
The bank guaranteed that deposit, do I take it,
27
and you purchased that guarantee from the bank?---And I
28
would have paid a fee of a few thousand dollars which
29
would have come out of that Commonwealth Bank global
30
financing, it was a $2 million financing, Your Honour,
31
over four properties.
1.LL:SK 10/12/08 2Cressy
FTR:28
I was pre-approved for the two 93
JOHNSON XXN
1
units.
2I don't need the whole of the story, just answer the questions? 3
---I'm doing my best, Your Honour.
4No, you're not. 5MR DEVRIES:
Getting back to the refinancing of Gibson Street,
6
just in case there is any misapprehension, you refinanced
7
that to the figure of $577,309 didn't you, which includes
8
the insurance?---As I've - I believe that's correct but I
9
don't have the exact figure in my head, Mr Devries.
10Thank you. 11
It's certainly a lot more than the $540 you
mentioned a few moments ago?---Did I say 540?
12Yes?---If I said $540 forgive me, Mr Devries. 13
I clearly meant
$540,000.
14You in fact had about 120,000 available after refinancing for 15
your own purposes, not 80,000?---No, I don't think it was
16
that high.
17
(inaudible).
18
deposit bond charges.
It was either just above or just below the There were bank charges.
There were the
19Are we having a Dutch auction, Mr Johnson?---I can - - 20HIS HONOUR:
That's not necessary.
(To witness) Are you saying
21
you had about a hundred thousand dollars available?
22
---Your Honour, I'm happy to tell - - -
23Mr Johnson, just answer one question directly.
You've just
24
said you had about a hundred thousand dollars available.
25
Is that what you said?---That's my recollection.
I - - -
26Thank you?---I can tender my bank statements in evidence, Your 27
Honour.
28
access to them.
29MR DEVRIES:
No hesitation.
Mr Devries has already had
Mr Johnson, you are the owner of a Land Rover
30
which you purchased for $54,572?---I was the owner of a
31
Land Rover that I purchased for approximately that amount
1.LL:SK 10/12/08 2Cressy
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94
JOHNSON XXN
1
in 1999, Mr Devries.
2You were the owner as of 30 June 2008?---(No audible response.) 3HIS HONOUR:
Did you still own it then?
4
question?---No, I – no, I did not.
5
that date.
Mr Johnson, answer the I did not own it at
6For the purposes of the transcript Mr Johnson is writing down 7
questions and is delaying answering them, despite my
8
request and even direction that he not do so that we can
9
continue with this evidence without these constant
10
delays?---Your Honour, in my defence I need to keep a
11
note for re-examination because I won't have the
12
transcript - - -
13You do not have to note that question down.
That simply – it
14
seems commonsense to suggest that.
15
on and see if we can finish this shortly.
16MR DEVRIES:
Now, let's continue
When did you dispose of that motor vehicle,
17
Mr Johnson, if you didn't own it at 30 June 2008?
18
---That vehicle was disposed of in September 2007.
19Why does your tax return make a claim for that vehicle for the 20
whole of the financial year?---I don't think it does,
21
Mr Devries.
22"Claim details.
Period start date 1 July 2007.
Period end
23
date 30 June 2008"?---Can you direct me to the page,
24
please?
25HIS HONOUR:
Is this Exhibit 45 is it?
26MR DEVRIES:
It is, Your Honour.
(To witness) My document has
27
no page numbers?---I've found it.
28
Honour.
I've found it, Your
29That's what your tax return says, Mr Johnson, and which you 30
said was true and correct in every particular?---Just
31
like Lisa Court obviously I need to do an adjustment for
1.LL:SK 10/12/08 2Cressy
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95
JOHNSON XXN
1
the fact that the vehicle was disposed of.
Oh dear, oh
2
dear, the odometer – the odometer reading would've showed
3
that part period from 1 July 07 up until the disposal in
4
September 08.
5Mr Johnson - - -?---The business use you'll see are zero in any 6
case.
7Mr Johnson - - -?---I'll take that up - - 8You've given evidence that you have a number of motor vehicles 9
and that you don't do a lot of driving.
Anyway the next
10
vehicle, the Mazda QUD720, you still own that motor
11
vehicle don't you?---Yes, I do.
12What did you purchase that one for?---$2200. 13When did you purchase that?---1998. 14You also are the owner of a Ford vehicle NDJ067?---Yes. 15Also the owner of a vehicle, a Camaro vehicle?---Yes. 16Also the owner of a Ford Capri?---That's a second Ford Capri. 17
I'm no longer the owner of that one, Mr Devries.
18Again your tax return is incorrect when it says that the claim 19
is in respect to the whole of the financial year?---No,
20
because I disposed of that Ford Capri after 30 June - - -
21How much did you dispose of it for?---I disposed of it for the 22
repair costs.
I needed a thousand dollars work done on
23
the engine and I couldn't afford to pay it, so I signed
24
the disposal notice over to the mechanic for the
25
registration period.
26
the registration period as well.
It was only about a month to go on
27How much did you dispose of the Land Rover for?---The Land 28
Rover – I think the Land Rover was disposed of for about
29
$10,000.
30
Your Honour?
31HIS HONOUR:
May I just ask for a relevance check, please,
No.
1.LL:SK 10/12/08 2Cressy
It goes to your financial position. FTR:28
96
JOHNSON XXN
1MR DEVRIES:
Mr Johnson, returning to the questions I was
2
asking you just before we had the lunch break?---Yes,
3
Mr Devries.
4Thank you.
I put to you that throughout the period that my
5
client says she had a relationship with you.
She was
6
earning between $2,000 and $3,000 as a prostitute and
7
that's the figures that you agreed to yesterday; do you
8
still agree with that figure?---I put to you that - - -
9Is the answer yes or no? 10HIS HONOUR:
You don't put anything to the counsel?---Sorry,
11
it's hard for me because we're talking a long period.
12
would like to talk about separate periods.
13It's not what you wish to talk about. 14
I
What date do you put
this at?
15MR DEVRIES:
From November 1998 to May 2007, Your Honour.
16HIS HONOUR:
It's a long period.
17MR DEVRIES:
It's a period of the relationship as certified by
18
my client.
19HIS HONOUR:
So you're asking the witness to agree that your
20
client was earning $2,000 or $3,000 per week throughout
21
that period.
22MR DEVRIES: 23
I will break it up, Your Honour, I think that
might be - - -
24HIS HONOUR:
If this is relevant you will need to do that?---It
25
contradicts his client's evidence too, Your Honour
26
substantially.
27It is not a matter of you commenting, it is a matter of you 28
answering the questions?---Forgive me, Your Honour.
29I won't forgive you because you know that?---Sorry, Your 30
Honour.
31This is again some more time wasting. 1.LL:SK 10/12/08 2Cressy
FTR:28
97
Now, Mr Devries. JOHNSON XXN
1MR DEVRIES:
You conceded yesterday in your evidence that you
2
had asserted on a number of occasions or on occasions in
3
this court that my client was deriving two to three
4
thousand dollars per week from her activities as a
5
prostitute, didn't you?---At times up to and while living
6
in South Yarra - - -
7Did you or did you not give that evidence, Mr Johnson, that you 8
agreed with that?---I gave evidence that she was working
9
as a prostitute from the night or the morning that I met
10
her, on - - -
11Mr Johnson, would you please answer - - 12HIS HONOUR:
Mr Devries, you are asking very general questions
13
on this topic.
14
then you can put the part of the transcript to him.
15MR DEVRIES:
If you wish the witness to agree with you
It will take me a few moments Your Honour, if you
16
would bear with me.
17
whether or not you agreed that you had said to this court
18
on at least two occasions that my client was earning two
19
to three thousand dollars as a prostitute?---I have given
20
evidence in two respects, the first is that to the best
21
of my knowledge and belief until I found out otherwise
22
late in 2007, to the best of my knowledge and belief
23
Ms Cressy had ceased earning any money as a prostitute
24
prior to her - us - moving out of the house at South
25
Yarra which was in March 2003.
26
until I found out otherwise late last year that from a
27
date - I'm a bit hazy - before Christmas 2002, ever since
28
that day she had given up the game for good.
29
horrified when I found out in August last year that she
30
was in fact back on the game and probably had been for
31
much of that time.
1.LL:SK 10/12/08 2Cressy
FTR:28
Did you, Mr Johnson, do you recall
98
My knowledge and belief
I was
JOHNSON XXN
1You asserted - - - ?---Including when she was living at the 2
house at Point Cook.
3You asserted, didn't you, that she was earning two to three 4
thousand dollars a week while she was working as a
5
prostitute.
6HIS HONOUR:
When you say he asserted this, in his evidence-in-
7
chief or that he put it as a proposition in cross-
8
examination?
9MR DEVRIES: 10HIS HONOUR:
Cross-examination Your Honour. All right?---I put this in cross-examination in
11
respect of the period from August 2007 onwards Your
12
Honour and probably backwards to the extent that I had
13
suspicions, as borne out by Ms Cressy's diaries,
14
photocopies of which are in evidence, that appear to who
15
that she was doing that stuff back in February as well,
16
February '07.
17
to be true that for the whole of her living at Point Cook
18
and for the last perhaps six months or so of her living
19
at South Yarra, she had given up the game for good, they
20
were the representations that Mr Devries client has
21
given.
22MR DEVRIES:
I have maintained at all times what I know
Page 714 Your Honour.
"You have alleged in
23
various court documents, have you, that my client makes
24
as much as two to three thousand dollars as a prostitute,
25
haven't you?"
26
have and I believe it's demonstrated in the diary entries
27
that I've tendered in evidence."?---Makes - that's as in
28
this - in this time frame now.
And you replied:
"I believe that, yes, I
29Yes, and also you said in the time frames covered by the 30
diaries and what time frame do you say is covered by the
31
diary?---I think there's notations in there covering
1.LL:SK 10/12/08 2Cressy
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99
JOHNSON XXN
1
February '07 to August '07.
2You have also gone into chapter and verse in at least one of 3
your documents in this matter about how many clients she
4
sees and how much she gets per client, haven't you?
5
---Mr Devries, that's distasteful and indelicate and I
6
certainly haven’t done a kiss and tell all into the
7
detail of all of the story of Ms Cressy had given me
8
during especially those early years when I met her and
9
her brothel activities.
I've mentioned one example I
10
think from her intonation or at the time of the Sydney
11
Olympics, I don't think I've mentioned many more than
12
that.
13You made mention of the number of clients that my client was 14
allegedly servicing prior to the birth of Illyana, didn't
15
you?---Which correct me if I'm wrong but that would have
16
been late '99, first half of 2000.
17You're saying 20 clients a day - a week at about $120 a client. 18
Is that what you have asserted?---It's basic arithmetic
19
Mr Devries.
20Sorry?---It's basic arithmetic Mr Devries, if she's working two 21
or three or four days a week.
You can take the four or
22
five per day that she was seeing during the period in her
23
diary which was last year, I don't know that market
24
conditions have changed, I'm not an economist specialised
25
in that industry, but presumably they're comparable, '99
26
to 2007.
27You're a participant in that industry yourself, Mr Johnson, 28
weren't you?---More vile accusations Mr Devries.
I never
29
participated in the prostitution industry as a worker.
30You registered, you printed business cards with your 31
registration number, you created advertising, you created
1.LL:SK 10/12/08 2Cressy
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100
JOHNSON XXN
1
a business, didn't you?---I attempted, as you full well
2
know, I attempted to play to Ms Cressy's jealous streak,
3
having exhausted all the carrots, I'd attempted a bit of
4
reverse psychology on two occasions.
5
relevance whatsoever to any of the issues aimed at
6
Ms Cressy's claim under 275.
7
already before Mr Justice Cavanough it is vile and
8
unbecoming of an officer of the court to continue to
9
throw these vile accusations against another - - -
10HIS HONOUR:
I find this has no
I have answered this
Well, your commentary on the cross-examination is
11
uncalled for, but what is the relevance of this?
You're
12
seeking to establish your client earned certain moneys in
13
that capacity, she's given evidence to that effect?
14
---Yes, Your Honour - - -
15- - - in 2002, I think she was earning?---Two thousand and 16
five, her evidence was, Your Honour.
17Well, I think it was 2002, she was working part time?---And 18
2006.
19And 2006, full time, she's given the amounts. 20MR DEVRIES:
Yes, Your Honour.
21HIS HONOUR:
I don't know that's the purpose of it is - it
22
sounds to me that Mr Johnson's doing nothing more than
23
making the allegations, he wasn't there when she was
24
earning the moneys.
25
examination, or was there any some other purpose?
26MR DEVRIES: 27
Is that the purpose of the cross-
The purpose was to show that she was
bringing - - -
28HIS HONOUR:
Bringing an income - - -
29MR DEVRIES:
Income as to - - -
30HIS HONOUR:
She's given evidence to that - - -
31MR DEVRIES:
Yes.
1.LL:SK 10/12/08 2Cressy
Would Your Honour just bear with me for a FTR:28
101
JOHNSON XXN
1
moment?
2HIS HONOUR:
Well, you better ask it directly, Mr Johnson, were
3
you aware at the time how much money Ms Cressy was
4
earning in her capacity as a prostitute in the years 1999
5
to 2007?
6
assumption, are you in a position to give evidence to
7
that effect?---Your Honour, I was never aware at any time
8
of exactly what she was earning.
As distinct from making a guess or an
9All right?---She would tell me how many clients she'd seen, and 10
I was aware of what the pricelist was, so I could, on
11
that basis, do some reversing, any calculations - - -
12No, we don't want you to give calculations, you're simply being 13
asked to give evidence?---Thank you, Your Honour.
14I think it was in cross-examination. 15MR DEVRIES:
Thank you, Your Honour.
I put to you, Mr Johnson,
16
that were it not - were it not for my client bringing her
17
income into the relationship, the whole financial
18
structure would have collapsed far earlier than it did
19
upon your separation?
20
or do you disagree with that?---I am trying very hard not
21
to laugh, because this is a very serious matter, but that
22
is absurd - - -
23HIS HONOUR: 24
Do you agree with that proposition
Do you disagree with it, do you?
That's all you
have to do?---Thank you, Your Honour, I totally disagree.
25MR DEVRIES:
I suggest to you that the reason, the main reason
26
it all fell apart in - sorry, just after Easter 2007 was
27
because your relationship ended and my client ceased
28
making her contributions to your relationship, both
29
financial and as homemaker?---I repeat my previous answer
30
to the previous answer, it's just vile and disgraceful
31
and I totally disagree.
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JOHNSON XXN
1HIS HONOUR: 2
You do not have to make commentary, you simply can
deny it.
3MR DEVRIES:
I want to suggest to you - - -?---Your Honour, as
4
it's the defence counsel for interrupting, but, Your
5
Honour, I believe that the plaintiff's (indistinct)
6
running dangerously close to asserting the defendant has
7
to disprove the plaintiff's claim, rather - - -
8HIS HONOUR: 9
You're out of order, you simply answer the
questions.
10MR DEVRIES:
I put to you that my client's contributions to the
11
financial aspect of your relationship were so valuable
12
that without them, from April, you say, May, she says
13
2007, that that's what precipitated the collapse of what
14
I describe before lunch as the house of cards that you'd
15
erected with your property purchasers?---For the third
16
time to the same question you've put three ways, I
17
totally disagree, and it's vile and absurd, it's contrary
18
to the flow of all the evidence, including the piles of
19
exhibits.
20MR DEVRIES:
Now - - -
21HIS HONOUR:
- - - Mr Devries, the evidence given by your
22
client as to the income in that capacity is at p.120 of
23
the transcript, 2002, part time, $40,000 per annum.
24MR DEVRIES:
Yes.
25HIS HONOUR:
The 2006 (indistinct) said she completed studies
26
full time, 70 to 100,000.
27MR DEVRIES: 28
Yes?---Thank you, Your Honour.
What was that page
reference?
29HIS HONOUR:
One hundred and 20?---I'm indebted to Your Honour.
30MR DEVRIES:
I'm indebted to Your Honour.
31
I was just going to
move on to one other very small point, Your Honour.
1.LL:SK 10/12/08 2Cressy
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In
JOHNSON XXN
1
your counterclaim, Mr Johnson, you assert that my client
2
- so you base your claim on the fact that my client had
3
no right to have lodged on the title of any of your
4
properties a caveat, is that correct?---Absolutely.
5And you would agree with me that - sorry, I'll withdraw that, 6
Your Honour, and it's your case that that - because,
7
according to you, she made no contributions whatsoever in
8
any capacity whatsoever to the relationship that you may
9
or may not have had with her?---Your Honour, I'm almost
10
(indistinct) I don't understand that question.
11I'll rephrase the question.
You say that you never had a
12
domestic relationship, that's correct, isn't it?---Yes,
13
subject to what I said yesterday about the period we were
14
living under the same roof at South Yarra, in particular,
15
and I am open to - I expect that reasonable people might,
16
with different sets of information, draw different
17
conclusions.
18And even in that period of time you'd have to concede that she 19
made some contributions to the household during that
20
time?---That's drawing a long bow, Mr Devries.
21
Honour.
No, Your
22And you dispute that she hasn't even got an arguable case for 23
the proposition that you had a domestic relationship from
24
1998 to 2007?---I've said what I've said about the period
25
at South Yarra, and I've said what I said about the first
26
few months at Point Cook.
27
notwithstanding that, yes, I dispute that she has an
28
arguable case.
29
evidence, it's contrary to the provable truth and it's
30
contrary to the truth as well that (indistinct).
And, subject to that, and
I think it's contrary to all of her
31And you're aware she's also arguing a constructive trust? 1.LL:SK 10/12/08 2Cressy
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JOHNSON XXN
1
---Yes, I'm aware that she's arguing a constructive
2
trust.
3Now, you gave a lot of evidence – or made a lot of references 4
to the Donald Trump Apprentice program, didn't you?---And
5
Poppy King, too, yes, Mr Devries.
6And Poppy King.
You were trying to involve and develop my
7
client, according to you, in your property ventures,
8
weren't you?---I was trying to help Miss Cressy
9
(indistinct) develop over the - - -
10An you were trying to do this from time to time as a joint 11
venture between you and her, weren't you?---Mr Devries,
12
that's drawing a long bow, that's my area of law, I
13
submit, not yours.
14I'm talking about a joint venture in the property development 15
arm of your enterprises, Mr Johnson?---I repeat my
16
previous answer, that's almost funny, Mr Devries.
17Almost?
Sorry, I didn't hear the word?---I repeat my previous
18
answer, that's almost funny, Mr Devries.
19
funny in these serious circumstances.
That's almost
20Thankfully, Your Honour, my cross-examination has finished. 21HIS HONOUR: 22
Thank you.
Now, has your solicitor, or you,
returned that part of the exhibit?
23MR DEVRIES:
Sorry, I was going to ask - - -
24HIS HONOUR:
Yes, you may.
25MR DEVRIES:
I'm sorry, Your Honour.
26
it, Your Honour.
27
valour at this stage.
28HIS HONOUR: 29
Yes.
Discretion being the better part of
Now, Ms Sofroniou, do you wish to cross-
examine?
30MS SOFRONIOU: 31
No, I think I might leave
Your Honour, may I answer that with one
reservation; I don't wish to cross-examine, I want to
1.LL:SK 10/12/08 2Cressy
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105
JOHNSON XXN
1
foreshadow that at the close of the plaintiff's case I
2
will wish to make an application in – in the defendant's
3
case – I will wish to make an application instead.
4
apprehension is that of course should that application
5
fail my options to put Browne v. Dunn questions to him
6
now may have been lost.
7
to nonetheless not cross-examine at this time and it may
8
be that I will not have to make any application before
9
Your Honour to, as it were, reopen the defendant's case
What I propose to do though is
10
to cross-examine.
11
do that at my risk in any event.
12HIS HONOUR: 13
My
I understand that I may be having to
I think you may be having to do that at your own
risk.
14MS SOFRONIOU:
Certainly.
My reasoning being that were I to
15
put documents of course, as I understand s.36 of the
16
Evidence Act here, I may in fact be required to go into
17
evidence, which is something that I'd rather not do.
18HIS HONOUR:
I don't know that it's right, is it?
19MS SOFRONIOU:
If I put evidence of a prior inconsistent
20
statement the court has the discretion to require tender,
21
and even to require tender at my initiation, and I don't
22
wish to take that risk.
23HIS HONOUR: 24
I take it you're foreshadowing a no case
submission?
25MS SOFRONIOU: 26HIS HONOUR:
Indeed, Your Honour. And I've never understood the case to be that a
27
party is shut out from making a no case submission
28
because documents have been tendered during cross-
29
examination on behalf of that client.
30MS SOFRONIOU: 31
But is that - - -
Where I was coming from was from a sort of a
strict common law position, in Queen's case one of the
1.LL:SK 10/12/08 2Cressy
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106
JOHNSON XXN
1
risks that was always involved in that procedure was
2
described as the defendant being put into – the cross-
3
examiner having to go into evidence by virtue of that,
4
and that's the apprehension that I have raised.
5
said that, the - - -
6HIS HONOUR:
Having
I must say, my experience of the practice here is
7
that a party is not shut out from making a no case
8
submission because that party has cross-examined and in
9
doing so has tendered through a witness on behalf of the
10
plaintiff, but similarly a defendant making these
11
submissions - - -
12MS SOFRONIOU: 13HIS HONOUR:
Yes. - - - tendered documents.
The usual practice in
14
Victoria is to put the party making their submission to
15
their election, but that election really is only in
16
futuro.
17MS SOFRONIOU:
Indeed.
And in due course I, of course, would
18
be arguing that this case might fall within the
19
discretion not to elect, but - - -
20HIS HONOUR:
Because of the nature of the allegations made?
21MS SOFRONIOU:
The nature of the allegations and the nature of
22
my argument, which is not going to involve detailed, as
23
it were, trial within a trial submissions.
24
by that, Your Honour, and I'm happy to proceed on that
25
basis.
26HIS HONOUR: 27
Yes.
I haven't heard any submission to the
contrary.
28MS SOFRONIOU:
Thank you, Your Honour.
29HIS HONOUR: 30
I'm comforted
I'm just speaking from my practice both at the Bar
and having heard this year a no case submission.
31MS SOFRONIOU: 1.LL:SK 10/12/08 2Cressy
I'm aware of it, Your Honour has very usefully, FTR:28
107
JOHNSON XXN
1
if I may say so, gathered the authorities to use as a
2
starting point.
3
take, which I make by way of submission, is that even if
4
the documents were tendered then the court can require
5
it, it doesn't have to be at my instigation, so that
6
would be another way of getting it in.
7HIS HONOUR:
I can require what, the tender?
8MS SOFRONIOU: 9
As it happens one comfort that I can
The tender, but that doesn't have to be my
tender as it were.
10HIS HONOUR:
I'm not sure that's right, but as I say my
11
experience of the practice is that parties are not shut
12
out from making the no case on the basis that they have
13
already tendered documents.
14MS SOFRONIOU: 15
I am comforted by that, Your Honour, because I
have short questions to put to the witness.
16HIS HONOUR:
Yes.
17
Harwood Andrews around 17 March 2008, would you have any
20
reason to recall that letter?---I wrote a few letters to
21
Richard around about that date.
22
that one?
23My one is marked.
Could I have a look at
I wonder whether you a have a copy of a
24
17 March 2008?---Was it attached to an exhibit prepared
25
by Mr (Indistinct)?
26No, as I understand it and if you can't put your finger on it 27
very easily then I will seek leave to approach, Your
28
Honour, if I may, for the purpose of showing the letter
29
and asking questions.
30HIS HONOUR:
My Tipstaff can hand the letter to him.
31MS SOFRONIOU: 1.LL:SK 10/12/08 2Cressy
I am just going to be reading from it while I FTR:28
108
JOHNSON XXN
1
ask the questions, it's my one copy, Your Honour, that’s
2
my difficulty?---That works for me Your Honour.
3HIS HONOUR: 4
Would you like Mr Richards to run a copy off for
you?
5MS SOFRONIOU: 6
Yes, Your Honour, that's certainly - I'd be very
grateful if he does.
7HIS HONOUR:
Thank you, Mr Richards.
8MS SOFRONIOU: 9
While he is doing that I will ask you to look at
this letter please, Mr Johnson, which is one of
10
15 January 2008.
11
it?---Thank you.
Could you look at that please and read
12Let me know when you've read it?---Thank you Ms Sofroniou. 13
May
I have a copy?
14Yes, we will make sure that you can have a copy. 15HIS HONOUR:
That's a letter from whom to whom?
16MS SOFRONIOU:
That is a letter from Harwood Andrews to
17
Mr Johnson dated 15 January 2008.
Do you agree with me
18
that you were being informed by Harwood Andrews by that
19
letter that before they would provide you with
20
withdrawals of any caveats on properties at that time
21
they required you to agree that net proceeds of sale of
22
the properties were to be held in trust?---They informed
23
me that that was one of their conditions, a negotiating
24
point, yes, it's in the second paragraph.
25You agree also that any notion of meeting with you, as you had 26
requested, to negotiate required your provision of all
27
extant contracts of sale and information concerning
28
outstanding arrears and mortgage commitment?---I'm aware
29
that that is a condition that is expressed in that
30
letter, yes.
31My suggestion to you is that you didn't provide any such 1.LL:SK 10/12/08 2Cressy
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109
JOHNSON XXN
1
information of mortgage statements detailing outstanding
2
arrears and mortgage commitment at around that time,
3
would you agree?---I would say that I had been trying to
4
organize a meeting with Mr Hanlon since July 2007.
5
Things got waylaid, attention was directed to the
6
children rather than the property situation.
7For any reason that there might be - I haven't asked you why, I 8
am asking you to agree - - -
9HIS HONOUR:
Ms Sofroniou is not asking you the reason, do you
10
agree that you did not provide the information referred
11
to in that letter to Harwood Andrews?---My recollection
12
is that apart from the specific information for Gibson
13
Street which I had given in November - I hadn't provided
14
that level of information to Harwood Andrews.
15MS SOFRONIOU: 16HIS HONOUR:
Thank you, I tender the letter. Yes, Ms Sofroniou, is there any need for me to
17
distinguish between which hat you're wearing - which
18
client on whose behalf this letter is tendered?
19MS SOFRONIOU:
For both, Your Honour.
20HIS HONOUR: Right. 21 22#EXHIBIT 1 Copy letter Harwood Andrews Lawyers to 23 the defendant, dated 15/01/08. 24MS SOFRONIOU:
Can I please show you this letter, Mr Johnson.
25
Could you have a peruse of that, you can disregard the
26
grey shading which was my marking and which in fact isn't
27
relevant to the questions I am asking you.
28
mean to throw you, so have a look through that and let me
29
know?---Thank you, Ms Sofroniou.
So I don't
30You have had the chance to have a look at that?---No, I'm still 31
halfway through the first page.
32Right?---17 March 2008, It is a good letter, Ms Sofroniou. 1.LL:SK 10/12/08 2Cressy
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JOHNSON XXN
1Could you just have regard, please, to the numbered paragraphs 2
that you see and in particular do you see at numbered
3
Paragraph 2B words to the effect, "I must say that I was
4
shocked to see that Hanlon was present at court on
5
12 March 2008, and purporting to be instructing solicitor
6
for Ms Cressy's counsel".
7
see a lot of words including those ones, Ms Sofroniou.
8
Yes, I do.
Do you see those words?---I
9Thank you?---Sorry, may I take you back? 10
There were some
attachments to this letter - - -
11I don't require you to look at those.
I'm interested in the
12
wording that I'm drawing to your attention.
I've drawn
13
your attention to the first sentence in 2B.
Do you
14
understand?---I do.
15
page communication and it's only the - - -
I'm just concerned.
16I acknowledge that, Mr Johnson.
This was a 26
Could you now have a look at
17
Paragraph Numbered 7, which is on the third page of the
18
letter?
19
words.
20
pigheadedly continuing to purport to represent Ms Cressy,
21
notwithstanding the mounting illegalities of this.
22
For the record I inform you again that I do not approve
23
of this".
24
Ms Sofroniou.
And I want to draw your attention to these "I note that Harwood Andrews are it seems
(A)
You see those words?---Yes, clearly,
25You see further down in that same numbered paragraph, 26
Subparagraph (d) the words, "You cannot seriously lead
27
Hanlon as purporting to be Ms Cressy's instructing
28
solicitor.
29
have no choice but to make a complaint".
30
there I'm presuming you mean a legal complaint.
31
you, Richard Peter Anderson, which even at this stage in
1.LL:SK 10/12/08 2Cressy
(i)
Should you continue to do so I shall
FTR:28
111
Interpolating "About
JOHNSON XXN
1
these pitiful proceedings is something that I do not wish
2
to do".
3
also see the words in Paragraphs B and C which - - -
Do you see those words, Mr Johnson?---I do and I
4You can come back to those in re-examination?---There's no need 5
to interpolate, Ms Sofroniou.
It's clear.
6Could you please have regard to Paragraph 10 which is on the 7
final page of the letter, and could I draw your attention
8
to the words, "I am not alone in my condemnation of
9
Harwood Andrews for acting and acting so unethically and
10
incompetently.
Do not be surprised by the consequences
11
of this, which is likely to be a substantial hit to your
12
firm's bottom line".
13
---I'm indebted to you for pointing them out,
14
Ms Sofroniou.
Do you see those words, Mr Johnson?
Thank you.
15You signed the letter, "Best wishes, James"?---That is simply 16
my signature, Ms Sofroniou.
17I think you had invoked in the penultimate sentence which 18
appears in Paragraph 12, "Basic etiquette between legal
19
practitioners".
20
had those discussions a number of times in the
21
proceedings.
22
at those times.
Do you see those words?---Yes.
We've
Do you – I'm not sure if you were present
23My suggestion to you having drawn those extracts from the 24
letter to your notice, is to suggest to you that the
25
purpose of this letter was an attempt to intimidate
26
Ms Cressy's lawyers into ceasing to act for her.
27
you say about that?---Not at all.
What do
That's not correct.
28You had certainly indicated that you did not approve of their 29
continuing representation of her.
30
that?---I was shocked that my external legal counsel in
31
Geelong were taking up her claims and that they seemed to
1.LL:SK 10/12/08 2Cressy
FTR:28
112
Do you agree with
JOHNSON XXN
1
not only have the telescope - - -
2Sorry, you might be confusing - - 3HIS HONOUR:
Just answer the question.
Do you agree with
4
Ms Sofroniou's proposition that you did not agree with
5
the fact that they were continuing to act for her?
6
a simple yes or no?---Yes, yes, Your Honour.
7
indebted, Your Honour.
8MS SOFRONIOU: 9
It's
I'm
Thank you.
Given that disapproval I suggest to you that
your meaning by the words in Paragraph 10 that I read to
10
you earlier, "Don't be surprised by the consequences of
11
this".
12
a threat.
13
strong word, Ms Sofroniou.
14
what one of my mentors, a partner in Johnson & ,
15
(inaudible).
16
stupidity of the situation that they were in.
17
being conned by a pro just as I had been.
Your use of the word, "Consequences", amounted to Do you agree with that?---Ah threat is a very I was attempting to achieve
I was hoping to open their eyes to the They were
18The subject of the threat or the gist of the threat was that 19
you were saying that you would take action that would
20
affect the firm's bottom line, which has resulted in your
21
joinder of them as parties to these proceedings.
22
agree with that?---No, I don't.
23
that's a totally incorrect linkage, Ms Sofroniou.
Do you
No, that's – that's –
24Could I draw your attention, please, to Paragraph 5 of the 25
letter where – that's on p.2.
Where you extract under
26
Subparagraph (a), "Please advise whether Harwood Andrews
27
now or at any time claims any interest as mortgage or
28
otherwise in any of my properties"?
29
---Yes, Ms Sofroniou.
Do you see that?
30That was a request that you were making for Harwood Andrews to 31
explain the basis of the caveat that they had lodged,
1.LL:SK 10/12/08 2Cressy
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113
JOHNSON XXN
1
wasn't it?---Not – not just the caveat over the Altona
2
property but its removal as well.
3
understand - - -
4Thank you. 5
I couldn't
I tender the letter, Your Honour, which is from
Mr Johnson to Richard Anderson at Harwood Andrews dated
6 17 March 2008 and dated if it please the court. 7 8#EXHIBIT H2 Copy letter from the defendant to Mr 9 Richard Anderson at Harwood Andrews dated 10 17/03/08. 11WITNESS: 12
Your Honour, it's just my usual request that that's
four pages out of I think a 26 page - - -
13HIS HONOUR:
If you say there's something that gives those
14
comments context, you're entitled to tender the balance
15
of it in your own re-examination?---Thank you Your
16
Honour.
17MS SOFRONIOU:
Mr Johnson, in relation to that last request I
18
drew to your attention, I want to suggest that Harwood
19
Andrews by their then lawyers by this time, Lander &
20
Rogers, wrote to you explaining that Harwood Andrews
21
claimed no interest as mortgagee in any of your
22
properties.
23
Ms Sofroniou.
Do you recall that?---I don't specifically
24To see if it jogs your memory, my suggestion to you is that at 25
that time, I'm talking about 20 March of this year,
26
Harwood Andrews told you that any interest they claimed,
27
was as chargee pursuant to a non-registered instrument of
28
charge that Ms Cressy had given to Harwood Andrews.
29
you recall being informed of that?---I don't specifically
30
recall being informed.
31
be happy to - - -
Do
If you have a letter there, I'd
32I'm happy to show it to you?---Thank you Ms Sofroniou. 33To see if - - -?---I've not looked at this part of the case for 1.LL:SK 10/12/08 2Cressy
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114
JOHNSON XXN
1
such a long time.
2Please read it and then let me know if you agree with the 3
proposition I've just put to you that you were so
4
informed?---I recognise the letter and the gist of the
5
contents.
6No reason to suggest to the court that you wouldn't have 7
received it around the time it was sent?---There may have
8
been a hiatus of a week or two or more before I actually
9
received it so it may have sat unopened for a long time
10
or sat in a mail box but I did receive it by the second
11
week of April.
I was probably aware of the contents.
12Thank you. 13I tender the letter 14 15#EXHIBIT H3 Letter from Lander & Rogers to the 16 defendant dated 20/03/08. 17Your Honour, may I please have access to Exhibit 38 I believe 18
it is.
It should be the letter that Mr Johnson wrote to
19
Gadens Lawyers.
20
which is a document that I understand you tendered, a
21
letter of 11 August 2008 to Ms Sharon Saife at Gadens
22
Lawyers?---I'm just looking for that attachment now.
Mr Johnson, I have in my hand Exhibit 38
23If you have a copy of it - - -?---11 August 2008. 24That's correct?---Thank you Ms Sofroniou. 25In it you make and I'm reading from the caption "Urgent demand 26
for settlement calculations", there's various requests
27
that you make of Ms Saife in that letter?---Yes, thank
28
you.
29And I want to draw your attention to p.3 which should begin 30
with a paragraph numbered six, do we have the same page?
31
---Yes, Ms Sofroniou.
32Now in it as I read it, you have said to the recipient of the 1.LL:SK 10/12/08 2Cressy
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JOHNSON XXN
1
letter, "I'm sorry but if your clients dare to enter into
2
any arrangements with Ms Cressy with respect to either of
3
my properties, notably 2 Dorrington Street, Point Cook as
4
this is the one she is next moving against, I am sorry
5
but if your clients are foolish enough to agree to any
6
proposal put forward by this woman, I will not hesitate
7
to join your clients as additional defendants in these
8
proceedings (breach of mortgagee's duties and as
9
participants in outright fraud).)
10
words?---I do Ms Sofroniou, yes.
Do you see those
11In Paragraph 7, could I draw your attention to the words, 12
"Again I am sorry but if your clients do not provide me
13
with 100 per cent cooperation in getting my sale of these
14
two properties to settlement e.g. by providing me with
15
the financial information I have requested by close of
16
business today, I reserve all of my rights as regards
17
your clients including - possibly including your clients
18
as additional defendants in these proceedings."
19
see those words Mr Johnson?---I do indeed Ms Sofroniou,
20
thank you.
Do you
21They were part of the letter which you caused to be sent to 22
Ms Saife?
I ask because I don't have a signed copy?
23
---Nor do I.
24
people on my instructions.
25
signed a copy that's here.
This was sent by my South Yarra office I don't think I've ever
26On the assumption that it was sent on your instructions, my 27
suggestion to you is that here is another instance
28
whereby in order to achieve a result for which you were
29
contending, you were threatening the joinder of the
30
recipient of the letter as a party to these proceedings.
31
Do you agree with that?---No, I don't.
1.LL:SK 10/12/08 2Cressy
FTR:28
116
JOHNSON XXN
1I suggest to you that in fact your words "I will not hesitate 2
to join your clients including as participants in
3
outright fraud" is an instance whereby you are
4
threatening the recipient of the letter with an action in
5
fraud in these proceedings.
6
think I'd have to say yes to that question in that way
7
Ms Sofroniou and I'll explain in re-examination.
8Your prerogative Mr Johnson. 9
Do you agree with that?---I
And what I further suggest to you
is that you have made both Harwood Andrews and Mr Hanlon
10
parties to these proceedings not because you believe
11
yourself to have a real claim against them, but in an
12
attempt to get them to negotiate with you or do your will
13
with regards to Ms Cressy in these proceedings.
14
agree with that?---I disagree strongly with every prong
15
of that question Ms Sofroniou.
Do you
16All right, I suggest to you further that the reason that you 17
had even issued the cross claim against Harwood Andrews
18
and Mr Hanlon in these proceedings was because Harwood
19
Andrews and Mr Hanlon's refusal to negotiate or to
20
discuss this matter with you had prompted you to join
21
them in these proceedings.
22
joined the 2nd and 3rd defendant by counterclaim for many
23
reasons, clearly the need to join them for any
24
proceedings would have been obviated if we could have had
25
some gentlemanly discussions.
Do you agree with that?---I
26Well, pausing there, that's because you wanted to have those 27
discussions gentlemanly or otherwise, not because you
28
felt that you had a real claim of fraud against them, do
29
you agree with that?---I'm indebted for the question, I
30
totally disagree with that.
31All right.
Could the witness please be shown - it's the
1.LL:SK 10/12/08 2Cressy
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117
JOHNSON XXN
1
exhibit of six - the letter of 6 March 2008.
2
Your Honour, I'll just look for a number - - -
3HIS HONOUR:
I'm sorry,
Yes, whose letter is it?
4MS SOFRONIOU: 5HIS HONOUR:
It should be, I think - - Sorry?
6MS SOFRONIOU: 7HIS HONOUR:
- - - of Mr Johnson - - Mr Richards says it's Exhibit 36, is that the one?
8MS SOFRONIOU: 9HIS HONOUR:
I thank Mr - - That's the letter of the defendants and
10
Mr Anderson, 6 March, with the attached facsimile of
11
the - - -
12MS SOFRONIOU:
Thank you, Your Honour, that's - it is
13
Exhibit 36.
Could that please be shown to the witness?
14
Mr Johnson, could you please look at Paragraph 2 of that
15
letter, it's the letter that should begin, "You use the
16
word 'choice' a lot in your facsimile", do you see that?
17
---Yes, I do.
18Well, you said in that paragraph, "I issued proceedings against 19
Hanlon and Harwood Andrews on 18 February 2008 by way of
20
cross claims in Supreme Court proceedings no. 9665 at
21
2007, in which I am defendant by original proceedings.
22
did so in desperation due to Ms Cressy's, Hanlon's, and
23
Harwood Andrew's refusal to negotiate, discuss the
24
situations as sensible adults, and to clarify your claim
25
against one or two of my properties, do you see those
26
words?---Yes, I do.
I
27I suggest that they convey the truth of the matter, which is 28
that you're - joining them to these proceedings has just
29
been the result of your frustration in their continuing
30
to represent Ms Cressy, do you agree with that?---Partly,
31
partly.
I say that the words expressed the truth of the
1.LL:SK 10/12/08 2Cressy
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JOHNSON XXN
1
matter, which is consistent to my answers to your
2
previous three or four questions.
3Well, I will make it then explicit and say that those words 4
negative any intention of your part to bring an action
5
for fraud in any good faith, and that entirely the
6
pursuit of your attempts to intimidate Harwood Andrews
7
and Mr Hanlon from continuing to represent Ms Cressy, do
8
you agree with that?---That's the part that I totally
9
disagree with, Ms Sofroniou.
10Thank you, may it please the court. 11HIS HONOUR:
Ms Sofroniou.
That completes cross-examination,
12
you can now give evidence by re-examination, bearing in
13
mind that it's not a repeat of your evidence-in-chief,
14
it's just to clarify the answers that you gave in cross-
15
examination, do you follow, and it's to be given by way
16
of admissible evidence, not commentary.
17
if that would assist the court, Your Honour.
20HIS HONOUR:
Yes.
21MR JOHNSON:
Thank you.
Beginning at p.675 of the transcript.
22
Sorry - yes, this starts at page 675 of the transcript,
23
Mr Devries was asking me questions about the contracts of
24
sale of the off the plan apartment at Breese Street.
25
believe I clarified those contracts which proceeded
26
nowhere except in carrying a little bit of expense in
27
cross-examination.
28HIS HONOUR:
I
You've already said that?---Thank you, Your
29
Honour.
The reference to Caldor v. Meade, with apologies
30
to those gentlemen economists, Messrs Lysaght and Edwards
31
1876 Chancellery case (indistinct).
1.LL:SK 10/12/08 2Cressy
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JOHNSON XXN
1Mr Johnson, if you misbehave I will simply terminate your re2
examination on the basis that you are abusing your right.
3
Now, make sure that you simply give evidence to explain
4
your answers, not to waste deliberately this court's
5
time?---A lot of these are issues I will come back to in
6
submissions because they're a bit speechified, so I will
7
move on and page 678.
8
about my comments there that I hold Magistrate O'Dwyer in
9
high regard, this harks back to my comments about we all
I do wish to speak a little bit
10
do the best we can within our abilities given the
11
materials available and the constraints that we are
12
operating under.
13It has simply been put to you that that is contrary to other 14
times when you have used adjectives that are quite
15
derogatory of him to describe him.
16
going to your credit, how do you reconcile the two
17
answers?---That's how I want to address it.
18
talk for half an hour - - -
This is a matter put
Now, I could
19No, I would have thought - - - ?---I don't want to Your Honour. 20- - - any re-examination on that issue should take two 21
minutes?---OK.
22How do you reconcile the two positions?---I was horrified with 23
the outcome of a hearing before Federal Magistrate
24
O'Dwyer in the last couple of days of May 2005 when he
25
refused to hold a hearing on a controversial application
26
I brought that the plaintiff was not complying with the
27
orders of that court with respect to time with and live
28
with orders that that court had made in those
29
proceedings.
30
he simply wouldn't hear it and dismissed witnesses, it
31
caused me trouble.
1.LL:SK 10/12/08 2Cressy
I was most uncomfortable with the fact that
FTR:28
The first practical opportunity I got 120
JOHNSON XXN
1
to raise those concerns with him was in mid-August I
2
think 2008, this year.
3
O'Dwyer the possibility of having the matter referred
4
either to another magistrate or to the Family Court
5
proper where it should have been because it was not a
6
matter that could be expected to be trialled within two
7
days, we have demonstrated the truth of that.
8
independent children's lawyer had put that submission to
9
him on 1 May.
I raised with Federal Magistrate
The
10This does not seem to me to be addressing the issue?---I am 11
coming to the point, Your Honour.
12Yes, well come directly to it?---Thank you.
I said to Federal
13
Magistrate O'Dwyer at that hearing in mid-August:
14
"Mr O'Dwyer I do not know how to take you, I appreciate
15
the constraints you are working on but I have concerns
16
about perceived if not actual bias as do Your Honour the
17
two witnesses you dismissed without hearing," at that
18
late May hearing.
19
believe for the first time, the question of whether I
20
required a litigation guardian in those proceedings.
On that occasion Mr Devries raised, I
21This is becoming irrelevant.
The only issue raised, and it
22
seems to me to be a peripheral issue at best, is that it
23
has been put that you have been inconsistent in
24
maintaining to me that you hold Magistrate O'Dwyer in
25
high regard when in other circumstances you have
26
described him as corrupt and incompetent.
27
thought that if there is an explanation what seems to be
28
an inconsistency you could give it in about one sentence?
29
---I can bring this around I think in two sentences.
30
that suggestion by Mr Devries Federal Magistrate O'Dwyer
31
said:
I would have
On
"Mr Devries, it could be said, and no doubt
1.LL:SK 10/12/08 2Cressy
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JOHNSON XXN
1 2
Mr Johnson would say this, that you are asking me to
3
participate in a process already underway to undermine
4
Mr Johnson's position."
5
point blank refused to hear any further submission as to
6
whether I needed the litigation guardian.
7
it in a couple of minutes.
8
appreciated his regard there.
9
the matter, he made clear on that occasion and again when
10
I put the application fully on 8 September this year, was
11
because of his case load, the case load for - - -
And Federal Magistrate O'Dwyer
He dealt with
That was the first point.
I
His refusal to transfer
12You are not addressing the point raised in cross-examination? 13
---I will move on Your Honour.
14You will move on?---At page 686 of the transcript, it was about 15
this time an old driver's licence of mine was produced.
16
I understand it was produced as regards a question of
17
credit of me as a witness.
18I think it was produced because of the address it has on the 19
back of it, Illouera Avenue, Grovedale?---Yes, which
20
caught me totally by surprise, it was not within my
21
recollection.
22
plastic could have no relevance to my credit, separate
23
from information - - -
Firstly I submit that that piece of
24It's not a matter of credit, it's a question as to - it has 25
been put that that is inconsistent with your claim that
26
you have never resided at Illouera Avenue, Grovedale?---
27MR JOHNSON:
I say it – it - it may raise questions in Your
28
Honour's mind as to my credit.
It also may raise
29
questions in Your Honour's mind - - -
30MR DEVRIES:
This is a submission, Your Honour.
31MR JOHNSON:
I realise it.
1.LL:SK 10/12/08 2Cressy
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Not a - - -
I can't – at my level of experience 122
JOHNSON XXN
1
in a litigation process which is nil before – virtually
2
before this - - -
3HIS HONOUR:
You keep saying that but it seems to me that
4
really when it suits you you show surprising familiarity
5
with a number of rules, and with particulars skills as an
6
advocate but when it suits you you deliberately profess
7
ignorance and try to take a liberty with this court.
8
view of your conduct is it is you who has constantly
9
sought to wrest control of this court from me, and I
My
10
warned you that others who are far better than you have
11
tried and failed both when I was an advocate and now.
12
All is that is occurring is your credit is coming off
13
second best as a result of that dismal attempt.
14
wish to assist yourself on this topic you can explain to
15
me why it is, or how it is, that a driver's licence in
16
your name appears to have an endorsement on it of an
17
address of 5 Illouera Avenue, Grovedale?
18MR JOHNSON:
If you
Your Honour, I think my memory is playing tricks
19
on me.
My memory is that I did not live at any time at
20
lllouera Avenue, Grovedale.
21
Christmas, New Year 1998/99 I split my time kind of
22
between – still sleeping occasionally up at Belgrave.
23
Sleeping occasionally on the floor of my office in the
24
Rialto, and sleeping occasionally at Ms Cressy's rented
25
property at (inaudible) near Grovedale.
26
very quickly – either the second or third week of January
27
signed that lease for Gheringhap Street and moved in
28
there.
29
can't – I just can't remember.
30
suggested to me that there was a reason that I needed to
31
change my licensed address from Belgrave to somewhere
My memory is that over the
I thought that I
But it may be that that was a longer period.
1.LL:SK 10/12/08 2Cressy
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123
I
I may have been – it's
JOHNSON XXN
1
else, and I had no other address to use.
2
suggests, Your Honour.
That's what it
3HIS HONOUR:
That's your explanation anyway is it?
4MR JOHNSON:
It's a – it's a memory – it's a memory thing.
5
that licence had been disclosed to me as I – it's a
6
submission point.
If
I would've - - -
7HIS HONOUR:
It's a submission.
8MR JOHNSON:
I would've gone to the trouble of locating a copy
9
Move on.
of that lease for that premises, even though it's a long
10
time ago, and that might've shed some light on this.
11
Thank you.
12
submission.
13
at p.688 of the transcript at about p.27 – now one of
14
those documents had as my previous address that lllouera
15
Avenue address.
16
the need for consistency because the bank would ask for
17
the licence for ID purposes, so that's another additional
18
information.
I'll move on, Your Honour.
I think that's a
The AMP loan application – and I'm looking
Now, that would've been done because of
The loan applications follow - - -
19HIS HONOUR:
The licence - - -
20MR JOHNSON:
- - -Endeavour Drive documents.
Now, my
21
motorcycle learner's permit, I would like to tender that
22
as an exhibit?
23HIS HONOUR:
Yes.
24MR JOHNSON:
That was one of the documents.
25
went in to the – did they?
26
withdrew that suggestion.
My recollection is Mr Devries
27HIS HONOUR:
Exhibit K.
28MR JOHNSON:
That is Exhibit K - - -
29HIS HONOUR:
Just a moment.
30
I don't think that
Yes, your learner's permit went in
as Exhibit K.
31MR JOHNSON:
Yes.
1.LL:SK 10/12/08 2Cressy
I will be looking tonight for my current FTR:28
124
JOHNSON XXN
1
driver's licence.
2
the Geelong region.
I'll be checking several addresses in
3HIS HONOUR:
Now, let's move on with the - - -
4MR JOHNSON:
Thank you, and I have to bring that in tomorrow
5
morning.
6
documents of that ilk that I would like to tender as
7
exhibits.
8HIS HONOUR: 9 10
Thank you, Your Honour.
I do have some other
Provided it's legitimate re-examination you can at
least seek to do that.
We'll see where it goes.
Move on
with your re-examination now.
11MR JOHNSON:
May I - - -
12HIS HONOUR:
You wish to tender them now?
13MR JOHNSON:
Yes, yes, Your Honour.
14HIS HONOUR:
What do you produce there?
15MR JOHNSON:
The first is a Medicare card which is obviously
I'll just do these two. Show them.
16
worn and it's not dated.
It's valid to January 2012.
17
can make enquires whether that gives us an issue date,
18
that - - -
19HIS HONOUR:
You wish to tender that as an exhibit do you?
20MR JOHNSON:
Yes, I do.
21HIS HONOUR:
Is that your current Medicare card?
22MR JOHNSON:
Yes, it is, Your Honour.
23HIS HONOUR:
I'll have a look at it but might I suggest that
It lists all of the - - -
24
you have copies made of it.
25
this becomes tendered in the court?
26MR JOHNSON:
You might need this.
I thought it's old and worn.
27
issued in any case.
28
card if it's tendered, Your Honour.
29MR DEVRIES: 30
If
I might get another
I realise what will happen to the
The same should happen with his motorcycle
licence.
31HIS HONOUR:
I
I was going to raise that.
Would you - - -
1.LL:SK 10/12/08 2Cressy
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125
JOHNSON XXN
1MR JOHNSON:
That was – yes, yes.
2HIS HONOUR:
Thanks, Mr Devries.
We'll have a copy of your
3
motorcycle licence made overnight, return to you the
4
licence and I'll substitute the photocopy of it for it.
5MR JOHNSON:
Thank you, Your Honour.
6HIS HONOUR:
You're content for this - - -
7MR JOHNSON:
Yes, and you can see that it's an old, old card.
8
It lists all the members of my household for quite a
9
number of years.
10HIS HONOUR:
It lists one - - -
11MR JOHNSON:
Yes, a household of one, Your Honour.
12
exactly the point.
13HIS HONOUR: 14
That's
Exhibit 46 I think it is, will be the defendant's
Medicare - - -
15MR DEVRIES:
Forty eight I think, Your Honour.
16HIS HONOUR:
Forty six.
17MR DEVRIES: I'm sorry, Your Honour. 18 19#EXHIBIT 46 Defendant, Harold James Johnson's, 20 Medicare card No.3402234931 valid to 21 January 2012. 22HIS HONOUR:
Do you want to tender something else too?
23MR JOHNSON:
Yes, I did.
This is my business card for my legal
24
practice.
Not the incorporated legal practice that
25
(inaudible) my own operating up to when I closed the
26
doors in June this year, which is Johnson Legal.
27HIS HONOUR: Thank you. 28 29#EXHIBIT 47 Defendant's business card for Johnson 30 Legal Australian Corporate Lawyers. 31MR JOHNSON:
By way of explanation that card would have been
32
printed June'ish 2006.
33
(indistinct) do these things recording a change of -
34
during 2006 when my legal practice which titled Sutton
1.LL:SK 10/12/08 2Cressy
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Probably a little bit later as
126
JOHNSON XXN
1
Johnson - titled James Johnson, I just spoke as Johnsons
2
and rebranded as Johnson.
3HIS HONOUR:
All right.
4MR JOHNSON:
Thank you Your Honour.
And it has two work
5
addresses on the date.
They're both serviced offices,
6
140 William Street and the other one is Chifley Tower in
7
Sydney.
8
wish I'd had the opportunity to ask Ms Cressy questions
9
about it as indeed with my old expired drivers licence,
The next document that was tendered, again I
10
was a valentine's card of February 2000.
It was quite a
11
lengthy letter I wrote around that card.
And I did say
12
to Your Honour I was happy for the contents to be taken
13
as evidence of proof - of credit.
14
amendment in there where I said to her words to the
15
effect that I wish she would come back to Gheringhap
16
Street.
There's a funny little
17HIS HONOUR:
Yes.
18MR JOHNSON:
There's also comments in there that I'm working I
19
think 20 hours a day (indistinct) and water.
20
like that.
21
say that - having looked at that card and thought about
22
it overnight, what I was really doing there was offering
23
my generosity to house Ms Cressy and her two boys and her
24
unborn child.
25
contact with her so I must have sent those roses - I'm
26
assuming roses - the card attached to the flowers.
27
reference to come back to Gheringhap Street, that is
28
where she would visit me given that she had broken up
29
contact.
30
going around to Illouera Avenue and knocking on the door
31
or anything crazy like that.
1.LL:SK 10/12/08 2Cressy
Something
And I'm not using the house anyway.
What I
This was in the period in which I had no
The
There's a message in there that I wouldn't be
FTR:28
127
And I think that that's as JOHNSON XXN
1
much as can be taken there.
If you want to contact me,
2
you have to come to Gheringhap Street.
3
to Illouera Avenue.
4
Lorraine Starr.
5
interpretation as well as the suggestion that it says
6
Ms Cressy had moved out and Ms Cressy was moving back.
I won't be coming
Definitely wouldn't be going to
I'd ask Your Honour to consider that
7HIS HONOUR:
That's your explanation.
8MR JOHNSON:
And I will come back to them in submissions Your
9
Honour because it's - - -
10HIS HONOUR:
All right.
11MR JOHNSON:
- - - about that date.
12HIS HONOUR:
Now I see the time.
13
in re-examination?
14MR JOHNSON: 15
How much longer have you got
I would not expect you to take long.
I - a lot of these points are submission points I
think Your Honour but - - -
16HIS HONOUR:
Don't make submissions from there.
17MR JOHNSON:
Exactly and I'm trying not to.
18
of transcript from yesterday afternoon.
19HIS HONOUR: 20
I've got 60 pages
I'm sorry I asked the question.
We will adjourn
and - - -
21MR JOHNSON:
I can't estimate - - -
22HIS HONOUR:
No, you can't - you're wasting my time.
23MR DEVRIES:
Can I just clarify one matter Your Honour.
24HIS HONOUR:
Yes.
25MR DEVRIES:
I presume tomorrow when and if we get to addresses
26
that Mr Johnson will go first in the normal course of
27
events.
28HIS HONOUR: 29
I think we have foreshadowed firstly a no case
submission.
30MS SOFRONIOU: 31MR DEVRIES:
That's so Your Honour. I did say when we get to addresses Your Honour.
1.LL:SK 10/12/08 2Cressy
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128
JOHNSON XXN
1HIS HONOUR:
There was a matter I was going to raise - you may
2
vacate to the Bar Table if you like.
3
(Witness excused.)
4<(THE WITNESS WITHDREW) 5It's a matter I was going to raise with counsel.
Can we take
6
first - I'm losing my voice.
7
will be making a no case submission, is that - - -
8MS SOFRONIOU:
You will be foreshadowing that now.
What was the
name of that case I had - - -
11MS SOFRONIOU: 12
I can hand up a copy to Your Honour.
Oakley v.
Insurance - - -
13HIS HONOUR:
Do you have a copy for Mr Johnson?
14MS SOFRONIOU:
I have copies for everyone.
15HIS HONOUR:
Thank you.
That's a case in which I gave a ruling
16
as to the principles of no case submissions as I
17
understood them.
18
long do you think that submission will take?
19MS SOFRONIOU: 20
You
That is correct.
9HIS HONOUR: 10
First thing's first.
Thanks.
Thank you for that.
Now how
Three-quarters of an hour, half an hour Your
Honour.
21HIS HONOUR:
Yes, I follow.
22MS SOFRONIOU: 23HIS HONOUR:
It's a short length. Yes and I'll need to rule on it.
24MS SOFRONIOU:
That's certainly so Your Honour.
25
factored that in.
26
long Your Honour would need.
I hadn't
I didn't want to presume to factor how
27HIS HONOUR:
No, it's just a question of where we're going.
28MR JOHNSON:
Excuse me Your Honour.
29HIS HONOUR:
Yes.
30MR JOHNSON:
There's Mr Wittekind and Mr Cockram's evidence as
31
well Your Honour.
1.LL:SK 10/12/08 2Cressy
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129
JOHNSON XXN
1HIS HONOUR:
I understand that.
2MR JOHNSON:
Thank you Your Honour.
3HIS HONOUR:
I'll have to see what happens there.
4MS SOFRONIOU: 5HIS HONOUR:
Yes, Your Honour. Just - now the other matter is if and when we get
6
to final address, thanks Ms Sofroniou, I'm content to
7
hear from Mr Johnson first.
8
might assist more if the usual order is reversed and the
9
defendants go - you go first to outline your case.
I'm wondering whether it
10MR DEVRIES:
I feared - - -
11HIS HONOUR:
I would invite you to do it and give you a right
12
of reply.
13
into address - into evidence, you're entitled to have him
14
go first in final address.
15MR DEVRIES: 16
But in fairness to you since Mr Johnson's gone
If Your Honour informs me that you're assisted by
me going first, obviously I'll do that Your Honour.
17HIS HONOUR:
I think it would, at least, in relation to your
18
Part 9 application and your constructive trust
19
application, it seems to me that needs to be given some
20
sort of shape as to what your claiming over what
21
properties you're claiming them before Mr Johnson can
22
respond to them.
23MR DEVRIES:
I'm hoping, Your Honour, that when I have a chance
24
to properly read Gilda v. Procopets, that will confine
25
the amount of - the number of authorities that I have to
26
take Your Honour to.
27HIS HONOUR:
Yes, I'm hoping the same.
It's - I - comparing
28
facts of different cases with the current case, it seems
29
to me a bit like, in another jurisdiction, comparing
30
facts of quite different criminal cases in - when I come
31
to submissions on sentence, it's - they're all so
1.LL:SK 10/12/08 2Cressy
FTR:28
130
JOHNSON XXN
1
different and varied it doesn't really help, it's more
2
the principles that I'd be assisted with.
3MR DEVRIES: 4
Unfortunately, at the end of the day, it all comes
down to judicial discretion, Your Honour.
5HIS HONOUR:
Well, I follow that, but there are - all judicial
6
discretions are exercised according to established
7
principles, and I would be assisted with the principles.
8
It's a matter for you, Mr Devries, and I would be
9
inviting you to go first, at least on the Part 9, give
10
you a right of reply on that, and - but not force you to
11
go first in relation to the counterclaim issues.
12MR DEVRIES:
All right, I'm more than happy to do that, I just
13
rose to - because I suspect that that might be the case,
14
and I thought I'd better be prepared overnight for - - -
15HIS HONOUR:
Yes, well, that would assist, but - - -
16MR DEVRIES:
I'll do that.
17HIS HONOUR:
But Mr Johnson hasn't closed his case yet, as he
18
points out, he's still hoping to be in a position to
19
called Mr Cockram.
20MR DEVRIES:
Well, certainly, I don't see how Mr Cockram's
21
evidence is going to (indistinct) my learned friend's
22
application anyway.
23HIS HONOUR:
No, I - - -
24MR DEVRIES:
If it turns out that he's not here in the morning.
25HIS HONOUR:
No, I follow that, then we may be able to deal
26
with it that way around.
27MR JOHNSON:
Excuse me, Your Honour, Mr Cockram won't be here
28
in the morning, it will be the process of the
29
recalcitrant chap, who - - -
30HIS HONOUR:
Which will mean - - -
31MR JOHNSON:
- - - had the affidavits - - -
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131
JOHNSON XXN
1HIS HONOUR:
- - - if I am satisfied as to the prerequisites,
2
you'll be asking me to issue a warrant for the arrest of
3
Mr Cockram.
4MR JOHNSON:
Yes, Your Honour, that's right, so we could have
5
another day or so.
6
applicable.
Reading time for Procopets, if that's
7HIS HONOUR:
I'm sorry?
8MR JOHNSON:
Reading time for Procopets, if that's applicable,
9
Your Honour.
10HIS HONOUR:
Yes.
We'll resume at 9.30 tomorrow.
I will be
11
asking, at some stage, I understand Mr Johnson says he
12
had no part in this, but how on earth the listing master
13
came to be told this is a two day case - - -
14MR DEVRIES:
I wasn't involved in that - - -
15HIS HONOUR:
I understand that.
It requires explanation, and I
16
must say, these misestimates, false estimates, are
17
causing enormous difficulty for this court.
18
first time it's happened to me or to other judges, and
19
it's quite unacceptable.
20
was your side that gave the estimate, I would be asking
21
for an explanation as to how it came to be.
It's not the
Now, I will be - I assume it
22MR DEVRIES:
I will make enquiries - - -
23HIS HONOUR:
It's a Part 9 application involving seven
24
properties over nine years, four different causes of
25
action in a counterclaim, a bitterly contested series of
26
applications that have come before this court, and a case
27
where the defendant's put in issue not only the question
28
of contribution, but the existence of the relationship.
29
How two days was ever told to this court in good faith,
30
that escapes me.
31MR JOHNSON:
Your Honour, I can give some information if you
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132
JOHNSON XXN
1
like.
2HIS HONOUR:
Well, you say you're willing to party to that?
3MR JOHNSON:
The information I've received from the
4
Prothonotary's Office is that that was a hearing before
5
Master Kings.
6HIS HONOUR:
That's right, well, that's - - -
7MR JOHNSON:
The only party represented was the plaintiff by
8
Mr Devries' instructor.
9HIS HONOUR:
- - - directed those remarks to Mr Devries.
10MR JOHNSON:
Yes, Your Honour, I wish to assess.
11HIS HONOUR:
Nine 30 tomorrow?
12MR DEVRIES:
May it please Your Honour.
13ADJOURNED UNTIL THURSDAY 10 DECEMBER 2008
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JOHNSON XXN
(Kaye J)
2UPON RESUMING AT 2.14 PM: 3HIS HONOUR:
Mr Johnson has not made it back to court yet.
4MR JOHNSON:
Your Honour.
5HIS HONOUR:
The witness box, thanks.
6
Your Honour, may I firstly explain why I am late to
8
court at this moment.
I have organised for Mr Thompson
9
to file and for one of his people to serve Mr Wittekind
10
on the basis he is subpoenaed to attend Your Honour's
11
court at 9.30 tomorrow morning.
12
those documents if Your Honour or my learned friends are
13
interested in a copy.
14HIS HONOUR:
I had unsealed copies of
If you will just hold them there.
You are at the
15
moment in cross-examination?---Yes, Your Honour, I have
16
not had time to eat other than a small piece of fruit and
17
I do need to visit the bathroom, Your Honour, I'm sorry.
18My staff contacted you about an hour ago about going to the 19
Registry to have the subpoena issued?---And it has taken
20
that long and I contacted your Tipstaff, Your Honour, and
21
said I could be five minutes late.
22My staff were told that the Registry had not sighted you here 23
at all?---I had to walk to Mr Thompson - - -
24You have five minutes.
Stand the matter down for five minutes.
25<(THE WITNESS WITHDREW) 26
(Short Adjournment)
27HIS HONOUR:
Mr Devries?
28MR DEVRIES:
May it please Your Honour.
Mr - if Mr Johnson
29
could be shown this document, it's a redirection advice
30
for mail from 166 Queen Street.
31
handwriting, Mr Johnson?---Yes, it is, Mr Devries?
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73
Is that in your
JOHNSON XXN
1And it seeks to readdress mail for James Johnson and James 2
Sutton, amongst others, doesn't it?---It does.
3
mistake with that last part, Mr Devries.
There's a
4It's in your handwriting, signed by you, and it seeks to 5
readdress - readdress mail for you from 166 Queen Street,
6
Altona, is that correct?---Yes, it does.
7What date did you seek to have the mail readdressed from? 8
---This particular application is dated 25 September
9
2007.
10Yes?---No, sorry, it was signed by me on 19 September 2007. 11I tender it, Your Honour?---May I have a copy, please? 12HIS HONOUR: 13
In due course.
Exhibit O - - -?---Your Honour,
may - - -
14I'm describing an exhibit, Your Honour, you don't (indistinct). 15 16#EXHIBIT O Application to redirect mail signed by 17 Harold Johnson dated 19/09/07. 18MR DEVRIES:
Your Honour pleases?---Your Honour, might I be
19
excused from the box just to get my pad that I was
20
writing notes on?
21HIS HONOUR:
Yes?---Thank you, Your Honour.
22MR DEVRIES:
For Your Honour's assistance, I'm now turning to
23
Exhibit 47, this is the income tax return for Mr Johnson
24
for the financial year of 1 July 2000 to 30 June 2008?
25
---Forgive me, Your Honour, I'm still looking
26
(indistinct) notepad this morning.
27
Honour.
28MR DEVRIES: 29
I've found it, Your
I do apologise to everyone. Perhaps you can let us know when you're ready,
Mr Johnson?---I shall, Mr Devries, thank you.
30What are you writing down, Mr Johnson?---That there's an 31
exhibit, "O", mail redirection, Mr Devries.
32
apologise to my learned friend, I'm ready for more
1.LL:SK 10/12/08 2Cressy
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Thank you, I
JOHNSON XXN
1
questions.
2HIS HONOUR:
Can I just ask you this, when you sign a tax
3
return, you're aware of your obligation to ensure that
4
every statement contained in it is true and correct, is
5
that right?---Yes, Your Honour.
6Yes, and that's not just simply statements relating to your 7
financial affairs, but everything that's contained in
8
your tax return has to be true and correct, doesn't it?
9
---I believe so, Your Honour, yes.
10Yes?---Yes. 11And so when you signed your tax returns, you always sign them, 12
I take it, in the - doing your best to ensure that every
13
detail on them relating to you or your financial affairs
14
is true and correct?---Yes, my tax agent would prepare
15
them, print a copy for me, I would sign one or two pages,
16
and they would be submitted electronically.
17Yes?---Yes, Your Honour. 18(Indistinct) something with your individual tax return for the 19
year 2005, please, it's taken from Exhibit 5, that's a
20
copy of your tax return for that year?---Yes, Your
21
Honour.
22Yes, describes your home address at that time as 2 Dorrington 23
Street?---It does, Your Honour.
24Is that true?---It was the address of a home that I owned at 25
that time - - -
26No, that's not the question I asked you, was that true?---Was I 27
residing at that address?
28No?---When I signed - - 29No, was your statement as to your home address there true?---I 30
was living at that address when I signed - - -
31You were living there?---I was not living at that address when 1.LL:SK 10/12/08 2Cressy
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JOHNSON XXN
1
I signed this form.
2Was that untrue?
Would you prefer not to answer that, would
3
you prefer not to answer that question?---I considered
4
this and the cautions you gave me yesterday - - -
5Yes, well, I won't - - -?---- - - irrelevance - - 6I won't insist on an answer on the basis it may incriminate 7
you?---Also to relevance, Your Honour, I think - - -
8It is relevant, it's entirely relevant. 9MR DEVRIES: 10
Your Honour?
11HIS HONOUR: 12
Could I have a look at it for a moment, please, Sorry, has Your Honour completed your - - -
Yes?---Sorry, Your Honour, may I ask on what basis
Exhibit O was tendered?
13You identified it as your signature, Mr - - -?---Was it 14
tendered as to relevance?
15Yes?---Or as to credit - - 16Relevance.
I received it as to relevance?---I submit that
17
should have been tendered as part of the plaintiff's case
18
so that I could have the opportunity to cross-examine her
19
on that document.
20The plaintiff is entitled to enter documents through you?---I 21
believe I should be entitled to cross-examine the
22
plaintiff as to how she obtained the document, given that
23
it's dated 19 September 2000 and - - -
24Well, you can make a submission to that effect later?---Thank 25
you, Your Honour, that - - -
26You can make a submission to that effect later. 27
you are being cross-examined by Mr Devries.
28(CNP Thank you, Your Honour. 29
MR DEVRIES:
Have you got a )
?---Thank you, Your Honour.
30MR DEVRIES: 31
At the moment,
Now, do you have a copy of your 2007/2008 income
tax return in front of you, Mr Johnson?---I do,
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JOHNSON XXN
1
Mr Devries.
2I note that this document is not signed by you?---That is 3
correct; this copy is not signed, Mr Devries.
4Have you signed an identical version of that return?---As I 5
just explained to His Honour - - -
6No, no, just answer yes or no, Mr Johnson?---I will have signed 7
one or two pages for my tax agent, who has then lodged
8
this electronically.
9You're required to sign every page, aren't you?---I have never 10
– sometimes a bank will request that as part of due
11
diligence – no, I didn't – I've never signed every page.
12
The lodgements are electronic, I just sign the pages the
13
tax agent wants so that they're satisfied they've got all
14
the (indistinct) to lodge electronically.
15
two or three pages.
16So you've only signed two or three pages?
I might sign
Are you saying to
17
His Honour that every one of these pages of this document
18
is true and correct?
19
the answer to that question?---There is one – there is
20
one aspect that I realise now is not correct, so I do
21
need to file an amendment before April/May 2009.
It's your document, you should know
22Which part is not correct, Mr Johnson?---I haven't brought into 23
account the disposal of the Lisa Court property, there
24
would be a small capital gain there.
25
the outcome because it would be offset against staggering
26
net tax losses.
It's irrelevant to
27So apart from the absence of reference to Lisa Court being 28
sold, this Individual Tax Return, you say, is true and
29
correct in every respect?---Yes, it meets the
30
requirements of the income tax legislation.
31Are the contents of that document factually true and correct in 1.LL:SK 10/12/08 2Cressy
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JOHNSON XXN
1
every respect, Mr Johnson?---Subject to the above two
2
answers, yes.
3You're not prepared to give me an unqualified answer to that 4
question?---Yes, except I haven't brought into account
5
the disposal of Lisa Court and capital gains implications
6
thereof.
7And that discloses, does it not, that your income from your 8
business was a minus figure?---For the tax year beginning
9
1 July 2007 and ending 30 June 2008, yes, that's right;
10
my business expenses exceeded my income from that
11
business by a significant amount.
12What were your business expenses for that year?---The usuals, I 13
was still locked in - - -
14No, just the amount, not - - - ?---May I read off the document? 15No, just give us the figure, please?---I can't without reading 16
off the document.
17HIS HONOUR:
He may refer to the document.
18MR DEVRIES:
You can look at the document, but just give us the
19
figure.
20
Your Honour's territory.
21WITNESS: 22
I'm sorry, Your Honour, if I trespassed onto
Total expenses are showing up at 110,265 for the
business.
23MR DEVRIES:
So your gross income from your business was
24
190,000 for that year?
No, sorry, 30,000?---No, it's at
25
the bottom of that page, Mr Devries - - -
26No, just – this is - - - ?---It's minus 82,000. 27
Net income or
loss from business for this year, it's a loss of 82,286.
28So if your income from your business was 110,000 - - - ? 29
---No, no.
30Your expenses were 110,000?---Yes. 31Of which - - 1.LL:SK 10/12/08 2Cressy
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78
JOHNSON XXN
1HIS HONOUR: 2
Your business income was 28,250?---Yes, Your
Honour, that's correct.
3It's on Line J. 4
It's the fourth page on the document.
See
"Non primary production, 28,250".
5MR DEVRIES:
I'm indebted to Your Honour.
6HIS HONOUR:
"Total expenses, 110,265", that gives him a loss
7
of 82,286.
8MR DEVRIES: 9
please?
Your Honour, could I have a look at Exhibit N, N for Nelly.
10HIS HONOUR:
North.
11MR DEVRIES:
Sorry, I refuse to be military.
(To witness) How
12
do you equate 28,250, Mr Johnson, with 240,000 gross?
13
---As I said, that 240,000 is a historical figure that
14
probably was out of the 2004 or 2005 tax return.
15
no relevance – the banks always look at your last lodged
16
tax return, they like to see your bank statements - - -
It bore
17You're giving – at the moment - - - ?---I'll address it in 18
re-examination.
19At the moment you are giving hearsay evidence - - - ?---I can't 20
reconcile because - - -
21You can't reconcile it?
Now, I presume, too, that as a result
22
of this tax return – Your Honour, the other tax return
23
will be returned in a (indistinct).
24HIS HONOUR:
You want to hang on to that?
25MR DEVRIES:
Just for a few moments, Your Honour.
26HIS HONOUR:
That's all right, yes.
27MR DEVRIES:
I presume as a result of that individual tax
28
return, Mr Johnson, you won't be paying my client any
29
child support for the foreseeable future?---Your Honour,
30
my legal child support obligations – Mr Devries, need to
31
be recalculated by the Child Support Agency based on my
1.LL:SK 10/12/08 2Cressy
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JOHNSON XXN
1
current income.
2
historical (indistinct).
3
recalculation.
4
requirement.
5
forum I can do it, for DNA paternity testing for Illyana
6
just so that I know - - -
7HIS HONOUR:
That is current income.
It's not
I'm not aware of any recent
I have never paid bare minimum legal I will be asking, because this is the only
Let's just stay away from that because that has
8
got nothing to do with the question you've just been
9
asked, and I consider your answer evasive?---Am I a
10
delinquent who won't pay his legal obligations of child
11
support - - -
12That wasn't the question either?---OK, but I will meet my 13
obligations.
14The question put to you is, will you be paying child support? 15
---According to my legal obligations, yes, I will.
16You have the financial capacity to pay?---I have had no income. 17
I have no earnings since 1 July 2008, Your Honour.
18
child support purposes I'm deemed to have an income equal
19
to the - - -
20I'm not interested in that question.
For
I just asked you a very
21
short question and you - - -?---I think it's (indistinct)
22
the question.
23The question was will you be paying child support?---When I 24
have a legal obligation to do I shall, Your Honour.
25MR DEVRIES:
Your expectation is that as a result of this
26
income – the lodgement of this income tax return your
27
child support will be reassessed back to zero for that
28
financial year and the current financial year isn't it?
29
---I am horrified - - -
30Just answer the question, please?---I am horrified that I've 31
not been able to pay any child support to Julie Johnson
1.LL:SK 10/12/08 2Cressy
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80
JOHNSON XXN
1
since early June this year.
2
Child Support Agency deems me to have an income of
3
$80,000.
4HIS HONOUR:
I am horrified that the
Your emotions in relation to all that are
5
irrelevant.
You have deliberately refused to answer
6
questions over the last five minutes.
7
---The questions are making vile accusations as to my
8
character.
Now - - -?
9Mr Johnson, you have an obligation to answer questions 10
directly.
An evasive witness can be dealt with.
11
not wish to even make that threat at the moment, but
12
don't put me in a position where it's necessary for me to
13
do so in order to expedite this case?---I'll - - -
14Just behave yourself.
I do
You're an officer of this court you keep
15
reminding me.
16
not assisting your case at all with this behaviour.
17
listen to the question and answer it.
18MR DEVRIES:
You're doing yourself no good and you're Now,
Mr Devries.
Your expectation, Mr Johnson, is that as a result
19
of the lodgement of this tax return you'll be assessed to
20
pay my client no child support for the financial year
21
covered by your tax return, and for the current financial
22
year isn't it?---No.
23Are you serious in that answer, Mr Johnson? 24HIS HONOUR: 25WITNESS: 26
That's not a proper question.
I would love the liberty to explain my answer but
I'll do that in re-examination.
27MR DEVRIES:
Mr Johnson, when was the last time you paid my
28
client child support?---The last time I gave her cash
29
would've been in August 2007.
30Was that child support or support for her or was it overdue 31
wages?
What was it characterised by you as?
1.LL:SK 10/12/08 2Cressy
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81
JOHNSON XXN
1
---Characterised by me as moneys that Ms Cressy would
2
have available to support the children together with any
3
financial benefit she was getting from the government,
4
together with living rent free in the house at Altona.
5
So that she had sufficient means as single mum, while we
6
sorted out this mess, to maintain the children without
7
having to resort to prostitution which to my knowledge
8
she - - -
9HIS HONOUR:
How much did you pay to her at that time?---This
10
would've been a thousand dollars exactly, less the cost
11
of the mobile phone and the house phone at the Altona
12
property.
They were phones of mine.
13How much cash did you hand to her?---Zero, Your Honour. 14
I will
have deposited that into her bank account.
15How much did you deposit into her bank account?---It would've 16
been a thousand dollars less whatever the latest monthly
17
phone bills were for those two phones, so I'm guessing
18
somewhere - a bit more than $800, Your Honour.
19Sorry?---A bit more than $800 I guess. 20Until then had you been paying moneys to Ms Cressy for her 21
support and for the children?---Until then I'd been
22
giving Ms Cressy moneys since even before Illyana was
23
born.
24MR DEVRIES:
This income of $28,000 is that commensurate with
25
your present level of income, or has your income gone up
26
or down since the end of the last financial year?---My
27
present – my present business income for this half
28
financial year 1 July 2008 to to date is zero.
29
some running down expenses I believe I'm entitled to
30
claim because I have an expectation of earning
31
(inaudible) due course, but the actual figure if I was to
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82
I have
JOHNSON XXN
1
prepare this return today as at 1 July 2008 to this
2
period ending today the figure in Item J would be zero.
3That's going to be the figure for the foreseeable future isn't 4
it, Mr Johnson?---No, Mr Devries.
5
the New Year, and especially if His Honour gives a
6
judgment before Christmas I can get this monkey off my
7
back and I can start earning in the order of - - -
8HIS HONOUR: 9 10
I'm hopeful early in
The chances of giving a judgment before Christmas
are receding every time you give an evasive answer - - -? ---The quality - - -
11- - -just prolonging this case?---The quality of my earnings 12
from the start of next – the start of the next calendar
13
year will depend substantially upon whether I'm an
14
undischarged bankrupt or not.
15
undischarged bankrupt I will be commensurate with what I
16
was earning in my business, but obviously I'm starting
17
from zero.
18
undischarged bankrupt I understand I – my options are to
19
work as an employee so I will be earning a fraction of
20
what I could earn as a principal of a firm.
21MR DEVRIES: 22
Provided I'm not an
I've got to ramp up again.
As an
Sorry, as an undischarged bankrupt?---Yes,
Mr Devries.
23HIS HONOUR:
I think you've missed about three quarters of his
24
answer, you heard a lot, but you missed about three
25
quarters.
26MR DEVRIES:
Are you anticipating becoming an undischarged
27
bankrupt, are you?---I'm doing everything possible to
28
avoid that, Mr Devries, I should be patently aware from
29
the life of these proceedings - - -
30HIS HONOUR: 31
The long and rambling answer, I think, is
foreshadowing what might happen if you become a bankrupt
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JOHNSON XXN
1
and wasn't discharged.
2MR DEVRIES:
And you're going to do that to try and frustrate
3
any judgment that my client gets in her favour from His
4
Honour?
5
they're vile accusations, Your Honour, not a question.
I say that with respect, Your Honour?---I think
6Your Honour, I wouldn't have asked those questions, except for 7
a couple of things I've gleaned on a quick reading
8
of - - -
9HIS HONOUR: 10
isn't it, Justice Neeve.
11MR DEVRIES: 12
Yes, it's around about Paragraph 272 or something,
I think it might be around about p.120 or
thereabouts, Your Honour.
13HIS HONOUR:
Yes, I saw it too.
In other words, contrary to
14
the current flow of authority, the Court of Appeal now
15
say that what - post relationship contributions are
16
relevant.
17MR DEVRIES:
Certainly in the context of (indistinct).
18HIS HONOUR:
I understand that.
19MR DEVRIES:
Yes, and on that basis, Your Honour, what I put to
20
Your Honour, and (indistinct) has now changed.
21HIS HONOUR:
I follow that.
22MR DEVRIES:
Yes, thank you.
23HIS HONOUR:
Because I think the situation might be important.
24MR DEVRIES:
Yes.
25HIS HONOUR:
Whatever it was, but we have to cope with that,
26
but it seemed to me you probably already dealt with it.
27MR DEVRIES:
Yes, yes.
28HIS HONOUR:
Your client's got the children.
29MR DEVRIES:
Yes.
30
There is only one other matter that will
arise out of that, Your Honour, which - - -
31HIS HONOUR:
Anyway, you're still cross-examining Mr Johnson.
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84
JOHNSON XXN
1MR DEVRIES:
Yes.
2HIS HONOUR:
It's best we try and get that done.
3MR DEVRIES:
I was going to say, I'm moving onto another
4
subject that arises out of that.
5HIS HONOUR: 6
(Indistinct) Ms Sofroniou, if it did help you,
you're entitled to use the jury box if - - -
7MS SOFRONIOU: 8HIS HONOUR:
Your Honour. - - - face that way, you're comfortable there?
9
For the transcript, Ms Sofroniou has been alternately
10
standing and sitting because she has a very bad back,
11
with which I sympathise.
12MR DEVRIES:
I'm sorry, Your Honour.
You recall that letter
13
that was tendered yesterday, which was the letter from
14
your employee, Exhibit J, Your Honour?---Yes, Mr Devries.
15Your tax return is not consistent with the contents of that 16
letter either, is it?---I will say that the tax return
17
was prepared a good six months after that letter was
18
prepared, and on grounds of relevance and also having
19
regard to the cautions His Honour spoke to me yesterday
20
afternoon, I declined - - -
21HIS HONOUR:
It is relevant, but I will permit you to take the
22
privilege against self-crimination?---Except to the
23
extent I wish to come back with some comments in re-
24
examination, to the extent that I had already answered
25
that question to some degree yesterday afternoon.
26Well, to the extent that you answered, you may give evidence in 27
re-examination.
If you go beyond that, then it opened -
28
you waived the privilege, and that opens cross-
29
examination, so you'll have to tread wearily?---I'm
30
indebted, Your Honour.
31Because it's a privilege for you to waive, so you'll need to 1.LL:SK 10/12/08 2Cressy
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JOHNSON XXN
1
take care not to waive it.
Bear in mind that I cannot
2
draw any adverse inference against a witness who takes
3
the privilege against self-incrimination, do you follow
4
that?---Thank you, I wasn't aware of that, Your Honour.
5And it's a principle of law?---Thank you. 6Because it's a basic common law right we (indistinct). 7MR DEVRIES:
You are aware, aren't you, that pursuant to orders
8
of this honourable court, my client was given occupancy
9
of 166 Queen Street, Altona?---Not exactly, Mr Devries.
10No?
OK, not exactly?
I've mislaid some documents, Your
11
Honour.
You consented, didn't you, to an order of the
12
Federal Magistrates Court made on 26 September 2007, to
13
the effect that my client and the children shall reside
14
at 166 Queen Street, Altona?---Not exactly, Mr Devries.
15Order 19 says, "The mother and the children shall reside at 16
166 Queen Street, Altona, do you agree that that's the
17
order, that's that order"?
18
down to tell me whether you agree or not, Mr Johnson?
19
---Yes, that's the order, Mr Devries.
You don't need to write it
20And those were consent orders?---Those were consent orders, 21
Mr Devries.
22And you had counsel appearing for you on that occasion?---Yes. 23And are you suggesting that Order 19 is not an order with which 24
you agree?---No, I'm saying two things, firstly that
25
there's an order that I sought in my application, I
26
sought that order, Ms Cressy consented to it.
27
of a nonsense to say that I consented to an order I was
28
seeking in my own application, Mr O'Dwyer's jurisdiction,
29
and I say secondly, Ms Cressy did not gain occupancy of
30
the premises by virtue of my application or that order,
31
she had been in occupation since 2006, at my permission,
1.LL:SK 10/12/08 2Cressy
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86
It's a bit
JOHNSON XXN
1
I granted her occupancy of the premises, not any court
2
process, Mr Devries.
3From 26 September 2007 she was supposed to have occupancy, with 4
the children, of 166 Queen Street, Altona, wasn't she?
5
---That was the gist of my application - - -
6Yes, and thereafter you took every step you could to frustrate 7
that order and to force her and the children to have to
8
move from residence to residence, didn't you?---They are
9
vile statements and they are incorrect.
10Well, on 5 November 2007 you wrote to Mr Hanlon, didn't you, 11
and said, "I wish to assure Ms Lonergan, Miss Delanthy
12
and yourself in the clearest possible terms that I have
13
no desire or intention of commencing any steps to have my
14
daughter, Illyana, or her half-brothers, Skye and Treece,
15
or her mother, Pippin, evicted from the premises at 166
16
Queen Street, Altona.
17
wrote two letters to Mr Hanlon on that date.
The suggestion is abhorrent"?---I
18Did you write those words, Mr Johnson?---I did write those 19
words and the word "conundrum" in the next paragraph.
20Thank you, you've answered my question now, Mr Johnson.
I
21 tender that, Your Honour. 22 23#EXHIBIT P Letter from the defendant to 24 Mr David Hanlon of Harwood Andrews Pty 25 Ltd dated 05/11/07. 26MR DEVRIES:
And then after that you proceeded to attempt to
27
see the property, didn't you?---I received no response
28
from David Hanlon to that letter and I entered into a
29
contract of sale of the property.
30
going to be able to complete that sale, I had no idea at
31
that stage, but I set up that possibility.
Whether or not I was
32So notwithstanding the court order, that you said to His Honour 33
you proposed that you were in agreement with, the court
1.LL:SK 10/12/08 2Cressy
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87
JOHNSON XXN
1
made at the end of September, 26 September 2007, and your
2
letter of November to Mr Hanlon assuring him and my
3
client that you would not do anything to have my client
4
moved from 166 Queen Street, Altona, you signed a
5
contract of sale of that property on or about 24 December
6
2007, didn't you?---Mr Devries, my evidence on this point
7
hasn't and can't change from when we discussed this
8
before Justice Cavanough in the Practice Court on 20
9
June.
10His Honour is not Mr Justice Cavanough - - - ?---And when 11
myself and Dr Ingleby it before Justice - - -
12HIS HONOUR:
Mr Johnson, your answer is unresponsive.
The fact
13
is, as you've already tendered, you signed a contract of
14
sale on the property at 166 Queen Street, Altona on
15
24 December 2007, is that right?---Yes, sir.
16You've told me that settlement of that property was due in, I 17
think, February 2008, is that right?---Yes, Your Honour.
18I take it, it was a term of the contract of sale that you would 19
give vacant possession to the purchaser on that date?
20
---And that the purchaser's caveats and the Harwood
21
Andrews – no, the purchaser's caveat would be removed,
22
there was - - -
23Do you agree with what I put to you?---Totally, Your Honour. 24MR DEVRIES:
And as a result of correspondence from you to the
25
mortgagee, the mortgagee took possession of those
26
premises on or about 21 January this year.
27
correct, isn't it?---Totally incorrect.
That's
28Well, as a result of your letter they sought possession, we had 29
proceedings in this honourable court, isn't that correct?
30
And my client was forced to move to another of your
31
properties, isn't that correct?---Your Honour, the
1.LL:SK 10/12/08 2Cressy
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88
JOHNSON XXN
1
questions are skipping, I can't give - - -
2HIS HONOUR:
There are some questions in that.
Perhaps a more
3
important one is a factual question; I take it that in
4
January of 2008 the plaintiff was required to vacate
5
Queen Street?
6MR DEVRIES: 7
as a result of correspondence from Mr Johnson.
8HIS HONOUR: 9
She was given a notice to quit by the mortgagees
Yes.
Well, don't worry about the result - - -?
---I am not aware of that document.
10Yes, but you understand that she left in January 2008?---I 11
understand that she didn't, and I believe that's not
12
contested.
13She did or did not?---She did not. 14MR DEVRIES:
She left a bit later than that, Your Honour.
15HIS HONOUR:
When did she leave?
16MR DEVRIES:
About June 2007.
17HIS HONOUR:
Eight?
18MR DEVRIES:
2008, I'm sorry, Your Honour.
19HIS HONOUR:
Is that right?---A bit later, we're talking
20
January, Your Honour, now we're talking June, a bit
21
later.
22Yes, well I understand the difference between the two months. 23
Is it common ground that the plaintiff left the Queen
24
Street property in June 2008?---Yes, Your Honour.
25And that would be common ground that that was as a consequence 26
of action taken by the mortgagee?---No, Your Honour, that
27
was action taken by the plaintiff's application that was
28
heard before Justice Cavanough and the orders that
29
Mr Justice Cavanough made on or between 20 June this year
30
and 21 July this year.
31MR DEVRIES:
That is not quite accurate, is it?
1.LL:SK 10/12/08 2Cressy
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89
The mortgagee JOHNSON XXN
1
attended, the mortgagee had their own representation, the
2
mortgagee had their own representation and as a result of
3
the position the mortgagee was in, which emanated from
4
your letter, the mortgagee was given possession by His
5
Honour so it was given – orders giving the mortgagee
6
possession of those premises.
7
is something I didn't understand because the orders
8
Justice Cavanough made were orders against a non-party in
9
the proceedings and - - -
10HIS HONOUR: 11
Isn't that correct?---That
It doesn't matter whether you understand it or
not, were those orders made?---Yes, Your Honour.
12The orders are part of the record anyway, Mr Devries. 13MR DEVRIES: 14WITNESS: 15
Yes.
It's a possibility that Your Honour indicated on the
first day the trial was impossibility, I think.
16HIS HONOUR:
Sorry?---I believe in – you said in the first day
17
of the trial that it's impossible to make orders against
18
a non party.
19I didn't say that?---My memory must be wrong Your Honour. 20Just stick to the point would you please. 21MR DEVRIES:
As a result of that tune the children had to move
22
to Dorrington Street, that's correct isn't it?---Justice
23
Cavanough's fitted orders evicting me from Dorrington
24
Street, banning me from speaking or dealing with the
25
mortgagee.
26HIS HONOUR: 27
Did you leave Dorrington Street at that point?---I
did but - - -
28Did the plaintiff move in?---Yes pursuant to the orders - - 29Thank you, that’s all we need?--- - - - that Justice Cavanough 30
made.
31MR DEVRIES:
Order 6, Your Honour, of the orders made by His
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90
JOHNSON XXN
1
Honour on 20 June 2008.
2HIS HONOUR:
Yes.
3MR DEVRIES:
You are aware that my client has now located to
4
Dorrington Street with the children?---I became informed
5
of that fact when your client gave her evidence-in-chief.
6You're currently aware of that, aren't you?---I think I 7
answered that question, yes.
8HIS HONOUR: 9
Remind me of the date of that again Mr Devries,
what date did your client leave?
10MR DEVRIES:
It's within the last two weeks Your Honour.
11HIS HONOUR:
That's right?---Excuse me, Mr Devries, the
12
plaintiff still has possession and keys and her things at
13
the house, so I believe in that sense she might not be
14
residing there but she still has possession of the
15
property based on her testimony, Your Honour.
16She and the children have vacated those premises, Mr Johnson, 17
haven't they?---I can only rely on your client's
18
evidence-in-chief, Mr Devries, that's the only
19
information I have on the point.
20When you refinanced Gibson Street, you refinanced from a 21
mortgage in which the liability was a little bit less
22
than $400,000 to a liability of approximately $507,000,
23
isn't that correct?---In the broad brush, yes, I don't
24
recall the exact amount of the loan but it would have
25
been 90 per cent of the valuation which I think was
26
600,000 in bank valuation so that would give it a 540,000
27
and presumably the other 30,000 was - if that figure is
28
correct - was the mortgage insurance capitalised in, so
29
the number sounds about right Mr Devries.
30You applied some of the proceeds to the purchase of a another 31
property, is that correct?---Yes.
1.LL:SK 10/12/08 2Cressy
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91
JOHNSON XXN
1You pocketed some of the proceeds?---Mr Devries, I have given 2
you in the other jurisdiction a copy of my bank statement
3
showing the dispersal of those moneys out of my
4
Commonwealth Bank account where they were put, the
5
balance of the borrowings by the Commonwealth Bank early
6
in January this year.
7
the other jurisdiction.
You have that information, sir, in
8His Honour doesn't have that information and I don't have that 9
information in this jurisdiction, Mr Johnson, so perhaps
10
you would like to answer the question?---You are entitled
11
to tender that information, Mr Devries.
12HIS HONOUR: 13
Ask the question again, I'm sorry, I was
distracted.
14MR DEVRIES:
How much money did you pocket as a result of the
15
refinancing of Gibson Street?---I won't take issue at the
16
word "pocket", I think after the two financings were done
17
there was a net figure of about 80,000 banked into my
18
Commonwealth Bank account.
19You used the rest of the money to either improve your equity in 20
the other property or - sorry, that was in Endeavour
21
Drive or to reduce other liabilities of yours, didn't
22
you?---I used the rest of the money for many things,
23
including to repay short term borrowings I borrowed over
24
the previous quarter, trying to keep up all of my
25
mortgage payments up to date, child support payments for
26
Mrs Johnson as well as covering expenses of Ms Cressy's
27
that I was still paying at that time.
28Breese Street, you say that you have an equity of $1000 in each 29
of those properties?---I said that on a principal - - -
30Is that right?---I said on a principal - I think I said Calder 31
or Mead, but they were economists - funny what the memory
1.LL:SK 10/12/08 2Cressy
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92
JOHNSON XXN
1
does.
2
Lysaght v. Edwards 1867 - - -
3HIS HONOUR:
What I meant to say was on the principal of
We don't need the citation and you know that?
4
---499 - when I signed those contracts and put down my
5
$1000 deposit on each, I had a secured enforceable right
6
to the contracts.
7
lost.
8
signed, nothing for those properties except a bit of
9
mucking around with deposit bonds.
10MR DEVRIES:
I believe that opportunity has been
I have had nothing touched, nothing heard, nothing
You have had paid on your behalf a deposit of
11
$25,000 in respect of each of those two properties,
12
haven't you?---These are deposit bonds that the
13
Commonwealth Bank did.
14Would you like to answer my question Mr Johnson, you have had 15
paid on your behalf a deposit of $25,000 in respect of
16
each of those properties, that's correct isn't it?---No,
17
it's not correct Mr Devries.
18Or very close - or $23,250 for one property and $22,730 in 19
respect of the other property, that's correct then isn't
20
it?---That is not correct, Mr Devries, that is not how
21
deposit bonds worked.
22You have provided a guarantee of the deposit of $23,250 for one 23
property, Unit 27, and $22,730 in respect of Unit 6,
24
haven't you?---No, I've not provided any bank guarantee,
25
my bank provided the bank guarantee.
26HIS HONOUR:
The bank guaranteed that deposit, do I take it,
27
and you purchased that guarantee from the bank?---And I
28
would have paid a fee of a few thousand dollars which
29
would have come out of that Commonwealth Bank global
30
financing, it was a $2 million financing, Your Honour,
31
over four properties.
1.LL:SK 10/12/08 2Cressy
FTR:28
I was pre-approved for the two 93
JOHNSON XXN
1
units.
2I don't need the whole of the story, just answer the questions? 3
---I'm doing my best, Your Honour.
4No, you're not. 5MR DEVRIES:
Getting back to the refinancing of Gibson Street,
6
just in case there is any misapprehension, you refinanced
7
that to the figure of $577,309 didn't you, which includes
8
the insurance?---As I've - I believe that's correct but I
9
don't have the exact figure in my head, Mr Devries.
10Thank you. 11
It's certainly a lot more than the $540 you
mentioned a few moments ago?---Did I say 540?
12Yes?---If I said $540 forgive me, Mr Devries. 13
I clearly meant
$540,000.
14You in fact had about 120,000 available after refinancing for 15
your own purposes, not 80,000?---No, I don't think it was
16
that high.
17
(inaudible).
18
deposit bond charges.
It was either just above or just below the There were bank charges.
There were the
19Are we having a Dutch auction, Mr Johnson?---I can - - 20HIS HONOUR:
That's not necessary.
(To witness) Are you saying
21
you had about a hundred thousand dollars available?
22
---Your Honour, I'm happy to tell - - -
23Mr Johnson, just answer one question directly.
You've just
24
said you had about a hundred thousand dollars available.
25
Is that what you said?---That's my recollection.
I - - -
26Thank you?---I can tender my bank statements in evidence, Your 27
Honour.
28
access to them.
29MR DEVRIES:
No hesitation.
Mr Devries has already had
Mr Johnson, you are the owner of a Land Rover
30
which you purchased for $54,572?---I was the owner of a
31
Land Rover that I purchased for approximately that amount
1.LL:SK 10/12/08 2Cressy
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94
JOHNSON XXN
1
in 1999, Mr Devries.
2You were the owner as of 30 June 2008?---(No audible response.) 3HIS HONOUR:
Did you still own it then?
4
question?---No, I – no, I did not.
5
that date.
Mr Johnson, answer the I did not own it at
6For the purposes of the transcript Mr Johnson is writing down 7
questions and is delaying answering them, despite my
8
request and even direction that he not do so that we can
9
continue with this evidence without these constant
10
delays?---Your Honour, in my defence I need to keep a
11
note for re-examination because I won't have the
12
transcript - - -
13You do not have to note that question down.
That simply – it
14
seems commonsense to suggest that.
15
on and see if we can finish this shortly.
16MR DEVRIES:
Now, let's continue
When did you dispose of that motor vehicle,
17
Mr Johnson, if you didn't own it at 30 June 2008?
18
---That vehicle was disposed of in September 2007.
19Why does your tax return make a claim for that vehicle for the 20
whole of the financial year?---I don't think it does,
21
Mr Devries.
22"Claim details.
Period start date 1 July 2007.
Period end
23
date 30 June 2008"?---Can you direct me to the page,
24
please?
25HIS HONOUR:
Is this Exhibit 45 is it?
26MR DEVRIES:
It is, Your Honour.
(To witness) My document has
27
no page numbers?---I've found it.
28
Honour.
I've found it, Your
29That's what your tax return says, Mr Johnson, and which you 30
said was true and correct in every particular?---Just
31
like Lisa Court obviously I need to do an adjustment for
1.LL:SK 10/12/08 2Cressy
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95
JOHNSON XXN
1
the fact that the vehicle was disposed of.
Oh dear, oh
2
dear, the odometer – the odometer reading would've showed
3
that part period from 1 July 07 up until the disposal in
4
September 08.
5Mr Johnson - - -?---The business use you'll see are zero in any 6
case.
7Mr Johnson - - -?---I'll take that up - - 8You've given evidence that you have a number of motor vehicles 9
and that you don't do a lot of driving.
Anyway the next
10
vehicle, the Mazda QUD720, you still own that motor
11
vehicle don't you?---Yes, I do.
12What did you purchase that one for?---$2200. 13When did you purchase that?---1998. 14You also are the owner of a Ford vehicle NDJ067?---Yes. 15Also the owner of a vehicle, a Camaro vehicle?---Yes. 16Also the owner of a Ford Capri?---That's a second Ford Capri. 17
I'm no longer the owner of that one, Mr Devries.
18Again your tax return is incorrect when it says that the claim 19
is in respect to the whole of the financial year?---No,
20
because I disposed of that Ford Capri after 30 June - - -
21How much did you dispose of it for?---I disposed of it for the 22
repair costs.
I needed a thousand dollars work done on
23
the engine and I couldn't afford to pay it, so I signed
24
the disposal notice over to the mechanic for the
25
registration period.
26
the registration period as well.
It was only about a month to go on
27How much did you dispose of the Land Rover for?---The Land 28
Rover – I think the Land Rover was disposed of for about
29
$10,000.
30
Your Honour?
31HIS HONOUR:
May I just ask for a relevance check, please,
No.
1.LL:SK 10/12/08 2Cressy
It goes to your financial position. FTR:28
96
JOHNSON XXN
1MR DEVRIES:
Mr Johnson, returning to the questions I was
2
asking you just before we had the lunch break?---Yes,
3
Mr Devries.
4Thank you.
I put to you that throughout the period that my
5
client says she had a relationship with you.
She was
6
earning between $2,000 and $3,000 as a prostitute and
7
that's the figures that you agreed to yesterday; do you
8
still agree with that figure?---I put to you that - - -
9Is the answer yes or no? 10HIS HONOUR:
You don't put anything to the counsel?---Sorry,
11
it's hard for me because we're talking a long period.
12
would like to talk about separate periods.
13It's not what you wish to talk about. 14
I
What date do you put
this at?
15MR DEVRIES:
From November 1998 to May 2007, Your Honour.
16HIS HONOUR:
It's a long period.
17MR DEVRIES:
It's a period of the relationship as certified by
18
my client.
19HIS HONOUR:
So you're asking the witness to agree that your
20
client was earning $2,000 or $3,000 per week throughout
21
that period.
22MR DEVRIES: 23
I will break it up, Your Honour, I think that
might be - - -
24HIS HONOUR:
If this is relevant you will need to do that?---It
25
contradicts his client's evidence too, Your Honour
26
substantially.
27It is not a matter of you commenting, it is a matter of you 28
answering the questions?---Forgive me, Your Honour.
29I won't forgive you because you know that?---Sorry, Your 30
Honour.
31This is again some more time wasting. 1.LL:SK 10/12/08 2Cressy
FTR:28
97
Now, Mr Devries. JOHNSON XXN
1MR DEVRIES:
You conceded yesterday in your evidence that you
2
had asserted on a number of occasions or on occasions in
3
this court that my client was deriving two to three
4
thousand dollars per week from her activities as a
5
prostitute, didn't you?---At times up to and while living
6
in South Yarra - - -
7Did you or did you not give that evidence, Mr Johnson, that you 8
agreed with that?---I gave evidence that she was working
9
as a prostitute from the night or the morning that I met
10
her, on - - -
11Mr Johnson, would you please answer - - 12HIS HONOUR:
Mr Devries, you are asking very general questions
13
on this topic.
14
then you can put the part of the transcript to him.
15MR DEVRIES:
If you wish the witness to agree with you
It will take me a few moments Your Honour, if you
16
would bear with me.
17
whether or not you agreed that you had said to this court
18
on at least two occasions that my client was earning two
19
to three thousand dollars as a prostitute?---I have given
20
evidence in two respects, the first is that to the best
21
of my knowledge and belief until I found out otherwise
22
late in 2007, to the best of my knowledge and belief
23
Ms Cressy had ceased earning any money as a prostitute
24
prior to her - us - moving out of the house at South
25
Yarra which was in March 2003.
26
until I found out otherwise late last year that from a
27
date - I'm a bit hazy - before Christmas 2002, ever since
28
that day she had given up the game for good.
29
horrified when I found out in August last year that she
30
was in fact back on the game and probably had been for
31
much of that time.
1.LL:SK 10/12/08 2Cressy
FTR:28
Did you, Mr Johnson, do you recall
98
My knowledge and belief
I was
JOHNSON XXN
1You asserted - - - ?---Including when she was living at the 2
house at Point Cook.
3You asserted, didn't you, that she was earning two to three 4
thousand dollars a week while she was working as a
5
prostitute.
6HIS HONOUR:
When you say he asserted this, in his evidence-in-
7
chief or that he put it as a proposition in cross-
8
examination?
9MR DEVRIES: 10HIS HONOUR:
Cross-examination Your Honour. All right?---I put this in cross-examination in
11
respect of the period from August 2007 onwards Your
12
Honour and probably backwards to the extent that I had
13
suspicions, as borne out by Ms Cressy's diaries,
14
photocopies of which are in evidence, that appear to who
15
that she was doing that stuff back in February as well,
16
February '07.
17
to be true that for the whole of her living at Point Cook
18
and for the last perhaps six months or so of her living
19
at South Yarra, she had given up the game for good, they
20
were the representations that Mr Devries client has
21
given.
22MR DEVRIES:
I have maintained at all times what I know
Page 714 Your Honour.
"You have alleged in
23
various court documents, have you, that my client makes
24
as much as two to three thousand dollars as a prostitute,
25
haven't you?"
26
have and I believe it's demonstrated in the diary entries
27
that I've tendered in evidence."?---Makes - that's as in
28
this - in this time frame now.
And you replied:
"I believe that, yes, I
29Yes, and also you said in the time frames covered by the 30
diaries and what time frame do you say is covered by the
31
diary?---I think there's notations in there covering
1.LL:SK 10/12/08 2Cressy
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99
JOHNSON XXN
1
February '07 to August '07.
2You have also gone into chapter and verse in at least one of 3
your documents in this matter about how many clients she
4
sees and how much she gets per client, haven't you?
5
---Mr Devries, that's distasteful and indelicate and I
6
certainly haven’t done a kiss and tell all into the
7
detail of all of the story of Ms Cressy had given me
8
during especially those early years when I met her and
9
her brothel activities.
I've mentioned one example I
10
think from her intonation or at the time of the Sydney
11
Olympics, I don't think I've mentioned many more than
12
that.
13You made mention of the number of clients that my client was 14
allegedly servicing prior to the birth of Illyana, didn't
15
you?---Which correct me if I'm wrong but that would have
16
been late '99, first half of 2000.
17You're saying 20 clients a day - a week at about $120 a client. 18
Is that what you have asserted?---It's basic arithmetic
19
Mr Devries.
20Sorry?---It's basic arithmetic Mr Devries, if she's working two 21
or three or four days a week.
You can take the four or
22
five per day that she was seeing during the period in her
23
diary which was last year, I don't know that market
24
conditions have changed, I'm not an economist specialised
25
in that industry, but presumably they're comparable, '99
26
to 2007.
27You're a participant in that industry yourself, Mr Johnson, 28
weren't you?---More vile accusations Mr Devries.
I never
29
participated in the prostitution industry as a worker.
30You registered, you printed business cards with your 31
registration number, you created advertising, you created
1.LL:SK 10/12/08 2Cressy
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100
JOHNSON XXN
1
a business, didn't you?---I attempted, as you full well
2
know, I attempted to play to Ms Cressy's jealous streak,
3
having exhausted all the carrots, I'd attempted a bit of
4
reverse psychology on two occasions.
5
relevance whatsoever to any of the issues aimed at
6
Ms Cressy's claim under 275.
7
already before Mr Justice Cavanough it is vile and
8
unbecoming of an officer of the court to continue to
9
throw these vile accusations against another - - -
10HIS HONOUR:
I find this has no
I have answered this
Well, your commentary on the cross-examination is
11
uncalled for, but what is the relevance of this?
You're
12
seeking to establish your client earned certain moneys in
13
that capacity, she's given evidence to that effect?
14
---Yes, Your Honour - - -
15- - - in 2002, I think she was earning?---Two thousand and 16
five, her evidence was, Your Honour.
17Well, I think it was 2002, she was working part time?---And 18
2006.
19And 2006, full time, she's given the amounts. 20MR DEVRIES:
Yes, Your Honour.
21HIS HONOUR:
I don't know that's the purpose of it is - it
22
sounds to me that Mr Johnson's doing nothing more than
23
making the allegations, he wasn't there when she was
24
earning the moneys.
25
examination, or was there any some other purpose?
26MR DEVRIES: 27
Is that the purpose of the cross-
The purpose was to show that she was
bringing - - -
28HIS HONOUR:
Bringing an income - - -
29MR DEVRIES:
Income as to - - -
30HIS HONOUR:
She's given evidence to that - - -
31MR DEVRIES:
Yes.
1.LL:SK 10/12/08 2Cressy
Would Your Honour just bear with me for a FTR:28
101
JOHNSON XXN
1
moment?
2HIS HONOUR:
Well, you better ask it directly, Mr Johnson, were
3
you aware at the time how much money Ms Cressy was
4
earning in her capacity as a prostitute in the years 1999
5
to 2007?
6
assumption, are you in a position to give evidence to
7
that effect?---Your Honour, I was never aware at any time
8
of exactly what she was earning.
As distinct from making a guess or an
9All right?---She would tell me how many clients she'd seen, and 10
I was aware of what the pricelist was, so I could, on
11
that basis, do some reversing, any calculations - - -
12No, we don't want you to give calculations, you're simply being 13
asked to give evidence?---Thank you, Your Honour.
14I think it was in cross-examination. 15MR DEVRIES:
Thank you, Your Honour.
I put to you, Mr Johnson,
16
that were it not - were it not for my client bringing her
17
income into the relationship, the whole financial
18
structure would have collapsed far earlier than it did
19
upon your separation?
20
or do you disagree with that?---I am trying very hard not
21
to laugh, because this is a very serious matter, but that
22
is absurd - - -
23HIS HONOUR: 24
Do you agree with that proposition
Do you disagree with it, do you?
That's all you
have to do?---Thank you, Your Honour, I totally disagree.
25MR DEVRIES:
I suggest to you that the reason, the main reason
26
it all fell apart in - sorry, just after Easter 2007 was
27
because your relationship ended and my client ceased
28
making her contributions to your relationship, both
29
financial and as homemaker?---I repeat my previous answer
30
to the previous answer, it's just vile and disgraceful
31
and I totally disagree.
1.LL:SK 10/12/08 2Cressy
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102
JOHNSON XXN
1HIS HONOUR: 2
You do not have to make commentary, you simply can
deny it.
3MR DEVRIES:
I want to suggest to you - - -?---Your Honour, as
4
it's the defence counsel for interrupting, but, Your
5
Honour, I believe that the plaintiff's (indistinct)
6
running dangerously close to asserting the defendant has
7
to disprove the plaintiff's claim, rather - - -
8HIS HONOUR: 9
You're out of order, you simply answer the
questions.
10MR DEVRIES:
I put to you that my client's contributions to the
11
financial aspect of your relationship were so valuable
12
that without them, from April, you say, May, she says
13
2007, that that's what precipitated the collapse of what
14
I describe before lunch as the house of cards that you'd
15
erected with your property purchasers?---For the third
16
time to the same question you've put three ways, I
17
totally disagree, and it's vile and absurd, it's contrary
18
to the flow of all the evidence, including the piles of
19
exhibits.
20MR DEVRIES:
Now - - -
21HIS HONOUR:
- - - Mr Devries, the evidence given by your
22
client as to the income in that capacity is at p.120 of
23
the transcript, 2002, part time, $40,000 per annum.
24MR DEVRIES:
Yes.
25HIS HONOUR:
The 2006 (indistinct) said she completed studies
26
full time, 70 to 100,000.
27MR DEVRIES: 28
Yes?---Thank you, Your Honour.
What was that page
reference?
29HIS HONOUR:
One hundred and 20?---I'm indebted to Your Honour.
30MR DEVRIES:
I'm indebted to Your Honour.
31
I was just going to
move on to one other very small point, Your Honour.
1.LL:SK 10/12/08 2Cressy
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103
In
JOHNSON XXN
1
your counterclaim, Mr Johnson, you assert that my client
2
- so you base your claim on the fact that my client had
3
no right to have lodged on the title of any of your
4
properties a caveat, is that correct?---Absolutely.
5And you would agree with me that - sorry, I'll withdraw that, 6
Your Honour, and it's your case that that - because,
7
according to you, she made no contributions whatsoever in
8
any capacity whatsoever to the relationship that you may
9
or may not have had with her?---Your Honour, I'm almost
10
(indistinct) I don't understand that question.
11I'll rephrase the question.
You say that you never had a
12
domestic relationship, that's correct, isn't it?---Yes,
13
subject to what I said yesterday about the period we were
14
living under the same roof at South Yarra, in particular,
15
and I am open to - I expect that reasonable people might,
16
with different sets of information, draw different
17
conclusions.
18And even in that period of time you'd have to concede that she 19
made some contributions to the household during that
20
time?---That's drawing a long bow, Mr Devries.
21
Honour.
No, Your
22And you dispute that she hasn't even got an arguable case for 23
the proposition that you had a domestic relationship from
24
1998 to 2007?---I've said what I've said about the period
25
at South Yarra, and I've said what I said about the first
26
few months at Point Cook.
27
notwithstanding that, yes, I dispute that she has an
28
arguable case.
29
evidence, it's contrary to the provable truth and it's
30
contrary to the truth as well that (indistinct).
And, subject to that, and
I think it's contrary to all of her
31And you're aware she's also arguing a constructive trust? 1.LL:SK 10/12/08 2Cressy
FTR:28
104
JOHNSON XXN
1
---Yes, I'm aware that she's arguing a constructive
2
trust.
3Now, you gave a lot of evidence – or made a lot of references 4
to the Donald Trump Apprentice program, didn't you?---And
5
Poppy King, too, yes, Mr Devries.
6And Poppy King.
You were trying to involve and develop my
7
client, according to you, in your property ventures,
8
weren't you?---I was trying to help Miss Cressy
9
(indistinct) develop over the - - -
10An you were trying to do this from time to time as a joint 11
venture between you and her, weren't you?---Mr Devries,
12
that's drawing a long bow, that's my area of law, I
13
submit, not yours.
14I'm talking about a joint venture in the property development 15
arm of your enterprises, Mr Johnson?---I repeat my
16
previous answer, that's almost funny, Mr Devries.
17Almost?
Sorry, I didn't hear the word?---I repeat my previous
18
answer, that's almost funny, Mr Devries.
19
funny in these serious circumstances.
That's almost
20Thankfully, Your Honour, my cross-examination has finished. 21HIS HONOUR: 22
Thank you.
Now, has your solicitor, or you,
returned that part of the exhibit?
23MR DEVRIES:
Sorry, I was going to ask - - -
24HIS HONOUR:
Yes, you may.
25MR DEVRIES:
I'm sorry, Your Honour.
26
it, Your Honour.
27
valour at this stage.
28HIS HONOUR: 29
Yes.
Discretion being the better part of
Now, Ms Sofroniou, do you wish to cross-
examine?
30MS SOFRONIOU: 31
No, I think I might leave
Your Honour, may I answer that with one
reservation; I don't wish to cross-examine, I want to
1.LL:SK 10/12/08 2Cressy
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105
JOHNSON XXN
1
foreshadow that at the close of the plaintiff's case I
2
will wish to make an application in – in the defendant's
3
case – I will wish to make an application instead.
4
apprehension is that of course should that application
5
fail my options to put Browne v. Dunn questions to him
6
now may have been lost.
7
to nonetheless not cross-examine at this time and it may
8
be that I will not have to make any application before
9
Your Honour to, as it were, reopen the defendant's case
What I propose to do though is
10
to cross-examine.
11
do that at my risk in any event.
12HIS HONOUR: 13
My
I understand that I may be having to
I think you may be having to do that at your own
risk.
14MS SOFRONIOU:
Certainly.
My reasoning being that were I to
15
put documents of course, as I understand s.36 of the
16
Evidence Act here, I may in fact be required to go into
17
evidence, which is something that I'd rather not do.
18HIS HONOUR:
I don't know that it's right, is it?
19MS SOFRONIOU:
If I put evidence of a prior inconsistent
20
statement the court has the discretion to require tender,
21
and even to require tender at my initiation, and I don't
22
wish to take that risk.
23HIS HONOUR: 24
I take it you're foreshadowing a no case
submission?
25MS SOFRONIOU: 26HIS HONOUR:
Indeed, Your Honour. And I've never understood the case to be that a
27
party is shut out from making a no case submission
28
because documents have been tendered during cross-
29
examination on behalf of that client.
30MS SOFRONIOU: 31
But is that - - -
Where I was coming from was from a sort of a
strict common law position, in Queen's case one of the
1.LL:SK 10/12/08 2Cressy
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106
JOHNSON XXN
1
risks that was always involved in that procedure was
2
described as the defendant being put into – the cross-
3
examiner having to go into evidence by virtue of that,
4
and that's the apprehension that I have raised.
5
said that, the - - -
6HIS HONOUR:
Having
I must say, my experience of the practice here is
7
that a party is not shut out from making a no case
8
submission because that party has cross-examined and in
9
doing so has tendered through a witness on behalf of the
10
plaintiff, but similarly a defendant making these
11
submissions - - -
12MS SOFRONIOU: 13HIS HONOUR:
Yes. - - - tendered documents.
The usual practice in
14
Victoria is to put the party making their submission to
15
their election, but that election really is only in
16
futuro.
17MS SOFRONIOU:
Indeed.
And in due course I, of course, would
18
be arguing that this case might fall within the
19
discretion not to elect, but - - -
20HIS HONOUR:
Because of the nature of the allegations made?
21MS SOFRONIOU:
The nature of the allegations and the nature of
22
my argument, which is not going to involve detailed, as
23
it were, trial within a trial submissions.
24
by that, Your Honour, and I'm happy to proceed on that
25
basis.
26HIS HONOUR: 27
Yes.
I haven't heard any submission to the
contrary.
28MS SOFRONIOU:
Thank you, Your Honour.
29HIS HONOUR: 30
I'm comforted
I'm just speaking from my practice both at the Bar
and having heard this year a no case submission.
31MS SOFRONIOU: 1.LL:SK 10/12/08 2Cressy
I'm aware of it, Your Honour has very usefully, FTR:28
107
JOHNSON XXN
1
if I may say so, gathered the authorities to use as a
2
starting point.
3
take, which I make by way of submission, is that even if
4
the documents were tendered then the court can require
5
it, it doesn't have to be at my instigation, so that
6
would be another way of getting it in.
7HIS HONOUR:
I can require what, the tender?
8MS SOFRONIOU: 9
As it happens one comfort that I can
The tender, but that doesn't have to be my
tender as it were.
10HIS HONOUR:
I'm not sure that's right, but as I say my
11
experience of the practice is that parties are not shut
12
out from making the no case on the basis that they have
13
already tendered documents.
14MS SOFRONIOU: 15
I am comforted by that, Your Honour, because I
have short questions to put to the witness.
16HIS HONOUR:
Yes.
17
Harwood Andrews around 17 March 2008, would you have any
20
reason to recall that letter?---I wrote a few letters to
21
Richard around about that date.
22
that one?
23My one is marked.
Could I have a look at
I wonder whether you a have a copy of a
24
17 March 2008?---Was it attached to an exhibit prepared
25
by Mr (Indistinct)?
26No, as I understand it and if you can't put your finger on it 27
very easily then I will seek leave to approach, Your
28
Honour, if I may, for the purpose of showing the letter
29
and asking questions.
30HIS HONOUR:
My Tipstaff can hand the letter to him.
31MS SOFRONIOU: 1.LL:SK 10/12/08 2Cressy
I am just going to be reading from it while I FTR:28
108
JOHNSON XXN
1
ask the questions, it's my one copy, Your Honour, that’s
2
my difficulty?---That works for me Your Honour.
3HIS HONOUR: 4
Would you like Mr Richards to run a copy off for
you?
5MS SOFRONIOU: 6
Yes, Your Honour, that's certainly - I'd be very
grateful if he does.
7HIS HONOUR:
Thank you, Mr Richards.
8MS SOFRONIOU: 9
While he is doing that I will ask you to look at
this letter please, Mr Johnson, which is one of
10
15 January 2008.
11
it?---Thank you.
Could you look at that please and read
12Let me know when you've read it?---Thank you Ms Sofroniou. 13
May
I have a copy?
14Yes, we will make sure that you can have a copy. 15HIS HONOUR:
That's a letter from whom to whom?
16MS SOFRONIOU:
That is a letter from Harwood Andrews to
17
Mr Johnson dated 15 January 2008.
Do you agree with me
18
that you were being informed by Harwood Andrews by that
19
letter that before they would provide you with
20
withdrawals of any caveats on properties at that time
21
they required you to agree that net proceeds of sale of
22
the properties were to be held in trust?---They informed
23
me that that was one of their conditions, a negotiating
24
point, yes, it's in the second paragraph.
25You agree also that any notion of meeting with you, as you had 26
requested, to negotiate required your provision of all
27
extant contracts of sale and information concerning
28
outstanding arrears and mortgage commitment?---I'm aware
29
that that is a condition that is expressed in that
30
letter, yes.
31My suggestion to you is that you didn't provide any such 1.LL:SK 10/12/08 2Cressy
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109
JOHNSON XXN
1
information of mortgage statements detailing outstanding
2
arrears and mortgage commitment at around that time,
3
would you agree?---I would say that I had been trying to
4
organize a meeting with Mr Hanlon since July 2007.
5
Things got waylaid, attention was directed to the
6
children rather than the property situation.
7For any reason that there might be - I haven't asked you why, I 8
am asking you to agree - - -
9HIS HONOUR:
Ms Sofroniou is not asking you the reason, do you
10
agree that you did not provide the information referred
11
to in that letter to Harwood Andrews?---My recollection
12
is that apart from the specific information for Gibson
13
Street which I had given in November - I hadn't provided
14
that level of information to Harwood Andrews.
15MS SOFRONIOU: 16HIS HONOUR:
Thank you, I tender the letter. Yes, Ms Sofroniou, is there any need for me to
17
distinguish between which hat you're wearing - which
18
client on whose behalf this letter is tendered?
19MS SOFRONIOU:
For both, Your Honour.
20HIS HONOUR: Right. 21 22#EXHIBIT 1 Copy letter Harwood Andrews Lawyers to 23 the defendant, dated 15/01/08. 24MS SOFRONIOU:
Can I please show you this letter, Mr Johnson.
25
Could you have a peruse of that, you can disregard the
26
grey shading which was my marking and which in fact isn't
27
relevant to the questions I am asking you.
28
mean to throw you, so have a look through that and let me
29
know?---Thank you, Ms Sofroniou.
So I don't
30You have had the chance to have a look at that?---No, I'm still 31
halfway through the first page.
32Right?---17 March 2008, It is a good letter, Ms Sofroniou. 1.LL:SK 10/12/08 2Cressy
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JOHNSON XXN
1Could you just have regard, please, to the numbered paragraphs 2
that you see and in particular do you see at numbered
3
Paragraph 2B words to the effect, "I must say that I was
4
shocked to see that Hanlon was present at court on
5
12 March 2008, and purporting to be instructing solicitor
6
for Ms Cressy's counsel".
7
see a lot of words including those ones, Ms Sofroniou.
8
Yes, I do.
Do you see those words?---I
9Thank you?---Sorry, may I take you back? 10
There were some
attachments to this letter - - -
11I don't require you to look at those.
I'm interested in the
12
wording that I'm drawing to your attention.
I've drawn
13
your attention to the first sentence in 2B.
Do you
14
understand?---I do.
15
page communication and it's only the - - -
I'm just concerned.
16I acknowledge that, Mr Johnson.
This was a 26
Could you now have a look at
17
Paragraph Numbered 7, which is on the third page of the
18
letter?
19
words.
20
pigheadedly continuing to purport to represent Ms Cressy,
21
notwithstanding the mounting illegalities of this.
22
For the record I inform you again that I do not approve
23
of this".
24
Ms Sofroniou.
And I want to draw your attention to these "I note that Harwood Andrews are it seems
(A)
You see those words?---Yes, clearly,
25You see further down in that same numbered paragraph, 26
Subparagraph (d) the words, "You cannot seriously lead
27
Hanlon as purporting to be Ms Cressy's instructing
28
solicitor.
29
have no choice but to make a complaint".
30
there I'm presuming you mean a legal complaint.
31
you, Richard Peter Anderson, which even at this stage in
1.LL:SK 10/12/08 2Cressy
(i)
Should you continue to do so I shall
FTR:28
111
Interpolating "About
JOHNSON XXN
1
these pitiful proceedings is something that I do not wish
2
to do".
3
also see the words in Paragraphs B and C which - - -
Do you see those words, Mr Johnson?---I do and I
4You can come back to those in re-examination?---There's no need 5
to interpolate, Ms Sofroniou.
It's clear.
6Could you please have regard to Paragraph 10 which is on the 7
final page of the letter, and could I draw your attention
8
to the words, "I am not alone in my condemnation of
9
Harwood Andrews for acting and acting so unethically and
10
incompetently.
Do not be surprised by the consequences
11
of this, which is likely to be a substantial hit to your
12
firm's bottom line".
13
---I'm indebted to you for pointing them out,
14
Ms Sofroniou.
Do you see those words, Mr Johnson?
Thank you.
15You signed the letter, "Best wishes, James"?---That is simply 16
my signature, Ms Sofroniou.
17I think you had invoked in the penultimate sentence which 18
appears in Paragraph 12, "Basic etiquette between legal
19
practitioners".
20
had those discussions a number of times in the
21
proceedings.
22
at those times.
Do you see those words?---Yes.
We've
Do you – I'm not sure if you were present
23My suggestion to you having drawn those extracts from the 24
letter to your notice, is to suggest to you that the
25
purpose of this letter was an attempt to intimidate
26
Ms Cressy's lawyers into ceasing to act for her.
27
you say about that?---Not at all.
What do
That's not correct.
28You had certainly indicated that you did not approve of their 29
continuing representation of her.
30
that?---I was shocked that my external legal counsel in
31
Geelong were taking up her claims and that they seemed to
1.LL:SK 10/12/08 2Cressy
FTR:28
112
Do you agree with
JOHNSON XXN
1
not only have the telescope - - -
2Sorry, you might be confusing - - 3HIS HONOUR:
Just answer the question.
Do you agree with
4
Ms Sofroniou's proposition that you did not agree with
5
the fact that they were continuing to act for her?
6
a simple yes or no?---Yes, yes, Your Honour.
7
indebted, Your Honour.
8MS SOFRONIOU: 9
It's
I'm
Thank you.
Given that disapproval I suggest to you that
your meaning by the words in Paragraph 10 that I read to
10
you earlier, "Don't be surprised by the consequences of
11
this".
12
a threat.
13
strong word, Ms Sofroniou.
14
what one of my mentors, a partner in Johnson & ,
15
(inaudible).
16
stupidity of the situation that they were in.
17
being conned by a pro just as I had been.
Your use of the word, "Consequences", amounted to Do you agree with that?---Ah threat is a very I was attempting to achieve
I was hoping to open their eyes to the They were
18The subject of the threat or the gist of the threat was that 19
you were saying that you would take action that would
20
affect the firm's bottom line, which has resulted in your
21
joinder of them as parties to these proceedings.
22
agree with that?---No, I don't.
23
that's a totally incorrect linkage, Ms Sofroniou.
Do you
No, that's – that's –
24Could I draw your attention, please, to Paragraph 5 of the 25
letter where – that's on p.2.
Where you extract under
26
Subparagraph (a), "Please advise whether Harwood Andrews
27
now or at any time claims any interest as mortgage or
28
otherwise in any of my properties"?
29
---Yes, Ms Sofroniou.
Do you see that?
30That was a request that you were making for Harwood Andrews to 31
explain the basis of the caveat that they had lodged,
1.LL:SK 10/12/08 2Cressy
FTR:28
113
JOHNSON XXN
1
wasn't it?---Not – not just the caveat over the Altona
2
property but its removal as well.
3
understand - - -
4Thank you. 5
I couldn't
I tender the letter, Your Honour, which is from
Mr Johnson to Richard Anderson at Harwood Andrews dated
6 17 March 2008 and dated if it please the court. 7 8#EXHIBIT H2 Copy letter from the defendant to Mr 9 Richard Anderson at Harwood Andrews dated 10 17/03/08. 11WITNESS: 12
Your Honour, it's just my usual request that that's
four pages out of I think a 26 page - - -
13HIS HONOUR:
If you say there's something that gives those
14
comments context, you're entitled to tender the balance
15
of it in your own re-examination?---Thank you Your
16
Honour.
17MS SOFRONIOU:
Mr Johnson, in relation to that last request I
18
drew to your attention, I want to suggest that Harwood
19
Andrews by their then lawyers by this time, Lander &
20
Rogers, wrote to you explaining that Harwood Andrews
21
claimed no interest as mortgagee in any of your
22
properties.
23
Ms Sofroniou.
Do you recall that?---I don't specifically
24To see if it jogs your memory, my suggestion to you is that at 25
that time, I'm talking about 20 March of this year,
26
Harwood Andrews told you that any interest they claimed,
27
was as chargee pursuant to a non-registered instrument of
28
charge that Ms Cressy had given to Harwood Andrews.
29
you recall being informed of that?---I don't specifically
30
recall being informed.
31
be happy to - - -
Do
If you have a letter there, I'd
32I'm happy to show it to you?---Thank you Ms Sofroniou. 33To see if - - -?---I've not looked at this part of the case for 1.LL:SK 10/12/08 2Cressy
FTR:28
114
JOHNSON XXN
1
such a long time.
2Please read it and then let me know if you agree with the 3
proposition I've just put to you that you were so
4
informed?---I recognise the letter and the gist of the
5
contents.
6No reason to suggest to the court that you wouldn't have 7
received it around the time it was sent?---There may have
8
been a hiatus of a week or two or more before I actually
9
received it so it may have sat unopened for a long time
10
or sat in a mail box but I did receive it by the second
11
week of April.
I was probably aware of the contents.
12Thank you. 13I tender the letter 14 15#EXHIBIT H3 Letter from Lander & Rogers to the 16 defendant dated 20/03/08. 17Your Honour, may I please have access to Exhibit 38 I believe 18
it is.
It should be the letter that Mr Johnson wrote to
19
Gadens Lawyers.
20
which is a document that I understand you tendered, a
21
letter of 11 August 2008 to Ms Sharon Saife at Gadens
22
Lawyers?---I'm just looking for that attachment now.
Mr Johnson, I have in my hand Exhibit 38
23If you have a copy of it - - -?---11 August 2008. 24That's correct?---Thank you Ms Sofroniou. 25In it you make and I'm reading from the caption "Urgent demand 26
for settlement calculations", there's various requests
27
that you make of Ms Saife in that letter?---Yes, thank
28
you.
29And I want to draw your attention to p.3 which should begin 30
with a paragraph numbered six, do we have the same page?
31
---Yes, Ms Sofroniou.
32Now in it as I read it, you have said to the recipient of the 1.LL:SK 10/12/08 2Cressy
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JOHNSON XXN
1
letter, "I'm sorry but if your clients dare to enter into
2
any arrangements with Ms Cressy with respect to either of
3
my properties, notably 2 Dorrington Street, Point Cook as
4
this is the one she is next moving against, I am sorry
5
but if your clients are foolish enough to agree to any
6
proposal put forward by this woman, I will not hesitate
7
to join your clients as additional defendants in these
8
proceedings (breach of mortgagee's duties and as
9
participants in outright fraud).)
10
words?---I do Ms Sofroniou, yes.
Do you see those
11In Paragraph 7, could I draw your attention to the words, 12
"Again I am sorry but if your clients do not provide me
13
with 100 per cent cooperation in getting my sale of these
14
two properties to settlement e.g. by providing me with
15
the financial information I have requested by close of
16
business today, I reserve all of my rights as regards
17
your clients including - possibly including your clients
18
as additional defendants in these proceedings."
19
see those words Mr Johnson?---I do indeed Ms Sofroniou,
20
thank you.
Do you
21They were part of the letter which you caused to be sent to 22
Ms Saife?
I ask because I don't have a signed copy?
23
---Nor do I.
24
people on my instructions.
25
signed a copy that's here.
This was sent by my South Yarra office I don't think I've ever
26On the assumption that it was sent on your instructions, my 27
suggestion to you is that here is another instance
28
whereby in order to achieve a result for which you were
29
contending, you were threatening the joinder of the
30
recipient of the letter as a party to these proceedings.
31
Do you agree with that?---No, I don't.
1.LL:SK 10/12/08 2Cressy
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JOHNSON XXN
1I suggest to you that in fact your words "I will not hesitate 2
to join your clients including as participants in
3
outright fraud" is an instance whereby you are
4
threatening the recipient of the letter with an action in
5
fraud in these proceedings.
6
think I'd have to say yes to that question in that way
7
Ms Sofroniou and I'll explain in re-examination.
8Your prerogative Mr Johnson. 9
Do you agree with that?---I
And what I further suggest to you
is that you have made both Harwood Andrews and Mr Hanlon
10
parties to these proceedings not because you believe
11
yourself to have a real claim against them, but in an
12
attempt to get them to negotiate with you or do your will
13
with regards to Ms Cressy in these proceedings.
14
agree with that?---I disagree strongly with every prong
15
of that question Ms Sofroniou.
Do you
16All right, I suggest to you further that the reason that you 17
had even issued the cross claim against Harwood Andrews
18
and Mr Hanlon in these proceedings was because Harwood
19
Andrews and Mr Hanlon's refusal to negotiate or to
20
discuss this matter with you had prompted you to join
21
them in these proceedings.
22
joined the 2nd and 3rd defendant by counterclaim for many
23
reasons, clearly the need to join them for any
24
proceedings would have been obviated if we could have had
25
some gentlemanly discussions.
Do you agree with that?---I
26Well, pausing there, that's because you wanted to have those 27
discussions gentlemanly or otherwise, not because you
28
felt that you had a real claim of fraud against them, do
29
you agree with that?---I'm indebted for the question, I
30
totally disagree with that.
31All right.
Could the witness please be shown - it's the
1.LL:SK 10/12/08 2Cressy
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JOHNSON XXN
1
exhibit of six - the letter of 6 March 2008.
2
Your Honour, I'll just look for a number - - -
3HIS HONOUR:
I'm sorry,
Yes, whose letter is it?
4MS SOFRONIOU: 5HIS HONOUR:
It should be, I think - - Sorry?
6MS SOFRONIOU: 7HIS HONOUR:
- - - of Mr Johnson - - Mr Richards says it's Exhibit 36, is that the one?
8MS SOFRONIOU: 9HIS HONOUR:
I thank Mr - - That's the letter of the defendants and
10
Mr Anderson, 6 March, with the attached facsimile of
11
the - - -
12MS SOFRONIOU:
Thank you, Your Honour, that's - it is
13
Exhibit 36.
Could that please be shown to the witness?
14
Mr Johnson, could you please look at Paragraph 2 of that
15
letter, it's the letter that should begin, "You use the
16
word 'choice' a lot in your facsimile", do you see that?
17
---Yes, I do.
18Well, you said in that paragraph, "I issued proceedings against 19
Hanlon and Harwood Andrews on 18 February 2008 by way of
20
cross claims in Supreme Court proceedings no. 9665 at
21
2007, in which I am defendant by original proceedings.
22
did so in desperation due to Ms Cressy's, Hanlon's, and
23
Harwood Andrew's refusal to negotiate, discuss the
24
situations as sensible adults, and to clarify your claim
25
against one or two of my properties, do you see those
26
words?---Yes, I do.
I
27I suggest that they convey the truth of the matter, which is 28
that you're - joining them to these proceedings has just
29
been the result of your frustration in their continuing
30
to represent Ms Cressy, do you agree with that?---Partly,
31
partly.
I say that the words expressed the truth of the
1.LL:SK 10/12/08 2Cressy
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JOHNSON XXN
1
matter, which is consistent to my answers to your
2
previous three or four questions.
3Well, I will make it then explicit and say that those words 4
negative any intention of your part to bring an action
5
for fraud in any good faith, and that entirely the
6
pursuit of your attempts to intimidate Harwood Andrews
7
and Mr Hanlon from continuing to represent Ms Cressy, do
8
you agree with that?---That's the part that I totally
9
disagree with, Ms Sofroniou.
10Thank you, may it please the court. 11HIS HONOUR:
Ms Sofroniou.
That completes cross-examination,
12
you can now give evidence by re-examination, bearing in
13
mind that it's not a repeat of your evidence-in-chief,
14
it's just to clarify the answers that you gave in cross-
15
examination, do you follow, and it's to be given by way
16
of admissible evidence, not commentary.
17
if that would assist the court, Your Honour.
20HIS HONOUR:
Yes.
21MR JOHNSON:
Thank you.
Beginning at p.675 of the transcript.
22
Sorry - yes, this starts at page 675 of the transcript,
23
Mr Devries was asking me questions about the contracts of
24
sale of the off the plan apartment at Breese Street.
25
believe I clarified those contracts which proceeded
26
nowhere except in carrying a little bit of expense in
27
cross-examination.
28HIS HONOUR:
I
You've already said that?---Thank you, Your
29
Honour.
The reference to Caldor v. Meade, with apologies
30
to those gentlemen economists, Messrs Lysaght and Edwards
31
1876 Chancellery case (indistinct).
1.LL:SK 10/12/08 2Cressy
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JOHNSON XXN
1Mr Johnson, if you misbehave I will simply terminate your re2
examination on the basis that you are abusing your right.
3
Now, make sure that you simply give evidence to explain
4
your answers, not to waste deliberately this court's
5
time?---A lot of these are issues I will come back to in
6
submissions because they're a bit speechified, so I will
7
move on and page 678.
8
about my comments there that I hold Magistrate O'Dwyer in
9
high regard, this harks back to my comments about we all
I do wish to speak a little bit
10
do the best we can within our abilities given the
11
materials available and the constraints that we are
12
operating under.
13It has simply been put to you that that is contrary to other 14
times when you have used adjectives that are quite
15
derogatory of him to describe him.
16
going to your credit, how do you reconcile the two
17
answers?---That's how I want to address it.
18
talk for half an hour - - -
This is a matter put
Now, I could
19No, I would have thought - - - ?---I don't want to Your Honour. 20- - - any re-examination on that issue should take two 21
minutes?---OK.
22How do you reconcile the two positions?---I was horrified with 23
the outcome of a hearing before Federal Magistrate
24
O'Dwyer in the last couple of days of May 2005 when he
25
refused to hold a hearing on a controversial application
26
I brought that the plaintiff was not complying with the
27
orders of that court with respect to time with and live
28
with orders that that court had made in those
29
proceedings.
30
he simply wouldn't hear it and dismissed witnesses, it
31
caused me trouble.
1.LL:SK 10/12/08 2Cressy
I was most uncomfortable with the fact that
FTR:28
The first practical opportunity I got 120
JOHNSON XXN
1
to raise those concerns with him was in mid-August I
2
think 2008, this year.
3
O'Dwyer the possibility of having the matter referred
4
either to another magistrate or to the Family Court
5
proper where it should have been because it was not a
6
matter that could be expected to be trialled within two
7
days, we have demonstrated the truth of that.
8
independent children's lawyer had put that submission to
9
him on 1 May.
I raised with Federal Magistrate
The
10This does not seem to me to be addressing the issue?---I am 11
coming to the point, Your Honour.
12Yes, well come directly to it?---Thank you.
I said to Federal
13
Magistrate O'Dwyer at that hearing in mid-August:
14
"Mr O'Dwyer I do not know how to take you, I appreciate
15
the constraints you are working on but I have concerns
16
about perceived if not actual bias as do Your Honour the
17
two witnesses you dismissed without hearing," at that
18
late May hearing.
19
believe for the first time, the question of whether I
20
required a litigation guardian in those proceedings.
On that occasion Mr Devries raised, I
21This is becoming irrelevant.
The only issue raised, and it
22
seems to me to be a peripheral issue at best, is that it
23
has been put that you have been inconsistent in
24
maintaining to me that you hold Magistrate O'Dwyer in
25
high regard when in other circumstances you have
26
described him as corrupt and incompetent.
27
thought that if there is an explanation what seems to be
28
an inconsistency you could give it in about one sentence?
29
---I can bring this around I think in two sentences.
30
that suggestion by Mr Devries Federal Magistrate O'Dwyer
31
said:
I would have
On
"Mr Devries, it could be said, and no doubt
1.LL:SK 10/12/08 2Cressy
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JOHNSON XXN
1 2
Mr Johnson would say this, that you are asking me to
3
participate in a process already underway to undermine
4
Mr Johnson's position."
5
point blank refused to hear any further submission as to
6
whether I needed the litigation guardian.
7
it in a couple of minutes.
8
appreciated his regard there.
9
the matter, he made clear on that occasion and again when
10
I put the application fully on 8 September this year, was
11
because of his case load, the case load for - - -
And Federal Magistrate O'Dwyer
He dealt with
That was the first point.
I
His refusal to transfer
12You are not addressing the point raised in cross-examination? 13
---I will move on Your Honour.
14You will move on?---At page 686 of the transcript, it was about 15
this time an old driver's licence of mine was produced.
16
I understand it was produced as regards a question of
17
credit of me as a witness.
18I think it was produced because of the address it has on the 19
back of it, Illouera Avenue, Grovedale?---Yes, which
20
caught me totally by surprise, it was not within my
21
recollection.
22
plastic could have no relevance to my credit, separate
23
from information - - -
Firstly I submit that that piece of
24It's not a matter of credit, it's a question as to - it has 25
been put that that is inconsistent with your claim that
26
you have never resided at Illouera Avenue, Grovedale?---
27MR JOHNSON:
I say it – it - it may raise questions in Your
28
Honour's mind as to my credit.
It also may raise
29
questions in Your Honour's mind - - -
30MR DEVRIES:
This is a submission, Your Honour.
31MR JOHNSON:
I realise it.
1.LL:SK 10/12/08 2Cressy
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Not a - - -
I can't – at my level of experience 122
JOHNSON XXN
1
in a litigation process which is nil before – virtually
2
before this - - -
3HIS HONOUR:
You keep saying that but it seems to me that
4
really when it suits you you show surprising familiarity
5
with a number of rules, and with particulars skills as an
6
advocate but when it suits you you deliberately profess
7
ignorance and try to take a liberty with this court.
8
view of your conduct is it is you who has constantly
9
sought to wrest control of this court from me, and I
My
10
warned you that others who are far better than you have
11
tried and failed both when I was an advocate and now.
12
All is that is occurring is your credit is coming off
13
second best as a result of that dismal attempt.
14
wish to assist yourself on this topic you can explain to
15
me why it is, or how it is, that a driver's licence in
16
your name appears to have an endorsement on it of an
17
address of 5 Illouera Avenue, Grovedale?
18MR JOHNSON:
If you
Your Honour, I think my memory is playing tricks
19
on me.
My memory is that I did not live at any time at
20
lllouera Avenue, Grovedale.
21
Christmas, New Year 1998/99 I split my time kind of
22
between – still sleeping occasionally up at Belgrave.
23
Sleeping occasionally on the floor of my office in the
24
Rialto, and sleeping occasionally at Ms Cressy's rented
25
property at (inaudible) near Grovedale.
26
very quickly – either the second or third week of January
27
signed that lease for Gheringhap Street and moved in
28
there.
29
can't – I just can't remember.
30
suggested to me that there was a reason that I needed to
31
change my licensed address from Belgrave to somewhere
My memory is that over the
I thought that I
But it may be that that was a longer period.
1.LL:SK 10/12/08 2Cressy
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123
I
I may have been – it's
JOHNSON XXN
1
else, and I had no other address to use.
2
suggests, Your Honour.
That's what it
3HIS HONOUR:
That's your explanation anyway is it?
4MR JOHNSON:
It's a – it's a memory – it's a memory thing.
5
that licence had been disclosed to me as I – it's a
6
submission point.
If
I would've - - -
7HIS HONOUR:
It's a submission.
8MR JOHNSON:
I would've gone to the trouble of locating a copy
9
Move on.
of that lease for that premises, even though it's a long
10
time ago, and that might've shed some light on this.
11
Thank you.
12
submission.
13
at p.688 of the transcript at about p.27 – now one of
14
those documents had as my previous address that lllouera
15
Avenue address.
16
the need for consistency because the bank would ask for
17
the licence for ID purposes, so that's another additional
18
information.
I'll move on, Your Honour.
I think that's a
The AMP loan application – and I'm looking
Now, that would've been done because of
The loan applications follow - - -
19HIS HONOUR:
The licence - - -
20MR JOHNSON:
- - -Endeavour Drive documents.
Now, my
21
motorcycle learner's permit, I would like to tender that
22
as an exhibit?
23HIS HONOUR:
Yes.
24MR JOHNSON:
That was one of the documents.
25
went in to the – did they?
26
withdrew that suggestion.
My recollection is Mr Devries
27HIS HONOUR:
Exhibit K.
28MR JOHNSON:
That is Exhibit K - - -
29HIS HONOUR:
Just a moment.
30
I don't think that
Yes, your learner's permit went in
as Exhibit K.
31MR JOHNSON:
Yes.
1.LL:SK 10/12/08 2Cressy
I will be looking tonight for my current FTR:28
124
JOHNSON XXN
1
driver's licence.
2
the Geelong region.
I'll be checking several addresses in
3HIS HONOUR:
Now, let's move on with the - - -
4MR JOHNSON:
Thank you, and I have to bring that in tomorrow
5
morning.
6
documents of that ilk that I would like to tender as
7
exhibits.
8HIS HONOUR: 9 10
Thank you, Your Honour.
I do have some other
Provided it's legitimate re-examination you can at
least seek to do that.
We'll see where it goes.
Move on
with your re-examination now.
11MR JOHNSON:
May I - - -
12HIS HONOUR:
You wish to tender them now?
13MR JOHNSON:
Yes, yes, Your Honour.
14HIS HONOUR:
What do you produce there?
15MR JOHNSON:
The first is a Medicare card which is obviously
I'll just do these two. Show them.
16
worn and it's not dated.
It's valid to January 2012.
17
can make enquires whether that gives us an issue date,
18
that - - -
19HIS HONOUR:
You wish to tender that as an exhibit do you?
20MR JOHNSON:
Yes, I do.
21HIS HONOUR:
Is that your current Medicare card?
22MR JOHNSON:
Yes, it is, Your Honour.
23HIS HONOUR:
I'll have a look at it but might I suggest that
It lists all of the - - -
24
you have copies made of it.
25
this becomes tendered in the court?
26MR JOHNSON:
You might need this.
I thought it's old and worn.
27
issued in any case.
28
card if it's tendered, Your Honour.
29MR DEVRIES: 30
If
I might get another
I realise what will happen to the
The same should happen with his motorcycle
licence.
31HIS HONOUR:
I
I was going to raise that.
Would you - - -
1.LL:SK 10/12/08 2Cressy
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125
JOHNSON XXN
1MR JOHNSON:
That was – yes, yes.
2HIS HONOUR:
Thanks, Mr Devries.
We'll have a copy of your
3
motorcycle licence made overnight, return to you the
4
licence and I'll substitute the photocopy of it for it.
5MR JOHNSON:
Thank you, Your Honour.
6HIS HONOUR:
You're content for this - - -
7MR JOHNSON:
Yes, and you can see that it's an old, old card.
8
It lists all the members of my household for quite a
9
number of years.
10HIS HONOUR:
It lists one - - -
11MR JOHNSON:
Yes, a household of one, Your Honour.
12
exactly the point.
13HIS HONOUR: 14
That's
Exhibit 46 I think it is, will be the defendant's
Medicare - - -
15MR DEVRIES:
Forty eight I think, Your Honour.
16HIS HONOUR:
Forty six.
17MR DEVRIES: I'm sorry, Your Honour. 18 19#EXHIBIT 46 Defendant, Harold James Johnson's, 20 Medicare card No.3402234931 valid to 21 January 2012. 22HIS HONOUR:
Do you want to tender something else too?
23MR JOHNSON:
Yes, I did.
This is my business card for my legal
24
practice.
Not the incorporated legal practice that
25
(inaudible) my own operating up to when I closed the
26
doors in June this year, which is Johnson Legal.
27HIS HONOUR: Thank you. 28 29#EXHIBIT 47 Defendant's business card for Johnson 30 Legal Australian Corporate Lawyers. 31MR JOHNSON:
By way of explanation that card would have been
32
printed June'ish 2006.
33
(indistinct) do these things recording a change of -
34
during 2006 when my legal practice which titled Sutton
1.LL:SK 10/12/08 2Cressy
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Probably a little bit later as
126
JOHNSON XXN
1
Johnson - titled James Johnson, I just spoke as Johnsons
2
and rebranded as Johnson.
3HIS HONOUR:
All right.
4MR JOHNSON:
Thank you Your Honour.
And it has two work
5
addresses on the date.
They're both serviced offices,
6
140 William Street and the other one is Chifley Tower in
7
Sydney.
8
wish I'd had the opportunity to ask Ms Cressy questions
9
about it as indeed with my old expired drivers licence,
The next document that was tendered, again I
10
was a valentine's card of February 2000.
It was quite a
11
lengthy letter I wrote around that card.
And I did say
12
to Your Honour I was happy for the contents to be taken
13
as evidence of proof - of credit.
14
amendment in there where I said to her words to the
15
effect that I wish she would come back to Gheringhap
16
Street.
There's a funny little
17HIS HONOUR:
Yes.
18MR JOHNSON:
There's also comments in there that I'm working I
19
think 20 hours a day (indistinct) and water.
20
like that.
21
say that - having looked at that card and thought about
22
it overnight, what I was really doing there was offering
23
my generosity to house Ms Cressy and her two boys and her
24
unborn child.
25
contact with her so I must have sent those roses - I'm
26
assuming roses - the card attached to the flowers.
27
reference to come back to Gheringhap Street, that is
28
where she would visit me given that she had broken up
29
contact.
30
going around to Illouera Avenue and knocking on the door
31
or anything crazy like that.
1.LL:SK 10/12/08 2Cressy
Something
And I'm not using the house anyway.
What I
This was in the period in which I had no
The
There's a message in there that I wouldn't be
FTR:28
127
And I think that that's as JOHNSON XXN
1
much as can be taken there.
If you want to contact me,
2
you have to come to Gheringhap Street.
3
to Illouera Avenue.
4
Lorraine Starr.
5
interpretation as well as the suggestion that it says
6
Ms Cressy had moved out and Ms Cressy was moving back.
I won't be coming
Definitely wouldn't be going to
I'd ask Your Honour to consider that
7HIS HONOUR:
That's your explanation.
8MR JOHNSON:
And I will come back to them in submissions Your
9
Honour because it's - - -
10HIS HONOUR:
All right.
11MR JOHNSON:
- - - about that date.
12HIS HONOUR:
Now I see the time.
13
in re-examination?
14MR JOHNSON: 15
How much longer have you got
I would not expect you to take long.
I - a lot of these points are submission points I
think Your Honour but - - -
16HIS HONOUR:
Don't make submissions from there.
17MR JOHNSON:
Exactly and I'm trying not to.
18
of transcript from yesterday afternoon.
19HIS HONOUR: 20
I've got 60 pages
I'm sorry I asked the question.
We will adjourn
and - - -
21MR JOHNSON:
I can't estimate - - -
22HIS HONOUR:
No, you can't - you're wasting my time.
23MR DEVRIES:
Can I just clarify one matter Your Honour.
24HIS HONOUR:
Yes.
25MR DEVRIES:
I presume tomorrow when and if we get to addresses
26
that Mr Johnson will go first in the normal course of
27
events.
28HIS HONOUR: 29
I think we have foreshadowed firstly a no case
submission.
30MS SOFRONIOU: 31MR DEVRIES:
That's so Your Honour. I did say when we get to addresses Your Honour.
1.LL:SK 10/12/08 2Cressy
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128
JOHNSON XXN
1HIS HONOUR:
There was a matter I was going to raise - you may
2
vacate to the Bar Table if you like.
3
(Witness excused.)
4<(THE WITNESS WITHDREW) 5It's a matter I was going to raise with counsel.
Can we take
6
first - I'm losing my voice.
7
will be making a no case submission, is that - - -
8MS SOFRONIOU:
You will be foreshadowing that now.
What was the
name of that case I had - - -
11MS SOFRONIOU: 12
I can hand up a copy to Your Honour.
Oakley v.
Insurance - - -
13HIS HONOUR:
Do you have a copy for Mr Johnson?
14MS SOFRONIOU:
I have copies for everyone.
15HIS HONOUR:
Thank you.
That's a case in which I gave a ruling
16
as to the principles of no case submissions as I
17
understood them.
18
long do you think that submission will take?
19MS SOFRONIOU: 20
You
That is correct.
9HIS HONOUR: 10
First thing's first.
Thanks.
Thank you for that.
Now how
Three-quarters of an hour, half an hour Your
Honour.
21HIS HONOUR:
Yes, I follow.
22MS SOFRONIOU: 23HIS HONOUR:
It's a short length. Yes and I'll need to rule on it.
24MS SOFRONIOU:
That's certainly so Your Honour.
25
factored that in.
26
long Your Honour would need.
I hadn't
I didn't want to presume to factor how
27HIS HONOUR:
No, it's just a question of where we're going.
28MR JOHNSON:
Excuse me Your Honour.
29HIS HONOUR:
Yes.
30MR JOHNSON:
There's Mr Wittekind and Mr Cockram's evidence as
31
well Your Honour.
1.LL:SK 10/12/08 2Cressy
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129
JOHNSON XXN
1HIS HONOUR:
I understand that.
2MR JOHNSON:
Thank you Your Honour.
3HIS HONOUR:
I'll have to see what happens there.
4MS SOFRONIOU: 5HIS HONOUR:
Yes, Your Honour. Just - now the other matter is if and when we get
6
to final address, thanks Ms Sofroniou, I'm content to
7
hear from Mr Johnson first.
8
might assist more if the usual order is reversed and the
9
defendants go - you go first to outline your case.
I'm wondering whether it
10MR DEVRIES:
I feared - - -
11HIS HONOUR:
I would invite you to do it and give you a right
12
of reply.
13
into address - into evidence, you're entitled to have him
14
go first in final address.
15MR DEVRIES: 16
But in fairness to you since Mr Johnson's gone
If Your Honour informs me that you're assisted by
me going first, obviously I'll do that Your Honour.
17HIS HONOUR:
I think it would, at least, in relation to your
18
Part 9 application and your constructive trust
19
application, it seems to me that needs to be given some
20
sort of shape as to what your claiming over what
21
properties you're claiming them before Mr Johnson can
22
respond to them.
23MR DEVRIES:
I'm hoping, Your Honour, that when I have a chance
24
to properly read Gilda v. Procopets, that will confine
25
the amount of - the number of authorities that I have to
26
take Your Honour to.
27HIS HONOUR:
Yes, I'm hoping the same.
It's - I - comparing
28
facts of different cases with the current case, it seems
29
to me a bit like, in another jurisdiction, comparing
30
facts of quite different criminal cases in - when I come
31
to submissions on sentence, it's - they're all so
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1
different and varied it doesn't really help, it's more
2
the principles that I'd be assisted with.
3MR DEVRIES: 4
Unfortunately, at the end of the day, it all comes
down to judicial discretion, Your Honour.
5HIS HONOUR:
Well, I follow that, but there are - all judicial
6
discretions are exercised according to established
7
principles, and I would be assisted with the principles.
8
It's a matter for you, Mr Devries, and I would be
9
inviting you to go first, at least on the Part 9, give
10
you a right of reply on that, and - but not force you to
11
go first in relation to the counterclaim issues.
12MR DEVRIES:
All right, I'm more than happy to do that, I just
13
rose to - because I suspect that that might be the case,
14
and I thought I'd better be prepared overnight for - - -
15HIS HONOUR:
Yes, well, that would assist, but - - -
16MR DEVRIES:
I'll do that.
17HIS HONOUR:
But Mr Johnson hasn't closed his case yet, as he
18
points out, he's still hoping to be in a position to
19
called Mr Cockram.
20MR DEVRIES:
Well, certainly, I don't see how Mr Cockram's
21
evidence is going to (indistinct) my learned friend's
22
application anyway.
23HIS HONOUR:
No, I - - -
24MR DEVRIES:
If it turns out that he's not here in the morning.
25HIS HONOUR:
No, I follow that, then we may be able to deal
26
with it that way around.
27MR JOHNSON:
Excuse me, Your Honour, Mr Cockram won't be here
28
in the morning, it will be the process of the
29
recalcitrant chap, who - - -
30HIS HONOUR:
Which will mean - - -
31MR JOHNSON:
- - - had the affidavits - - -
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JOHNSON XXN
1HIS HONOUR:
- - - if I am satisfied as to the prerequisites,
2
you'll be asking me to issue a warrant for the arrest of
3
Mr Cockram.
4MR JOHNSON:
Yes, Your Honour, that's right, so we could have
5
another day or so.
6
applicable.
Reading time for Procopets, if that's
7HIS HONOUR:
I'm sorry?
8MR JOHNSON:
Reading time for Procopets, if that's applicable,
9
Your Honour.
10HIS HONOUR:
Yes.
We'll resume at 9.30 tomorrow.
I will be
11
asking, at some stage, I understand Mr Johnson says he
12
had no part in this, but how on earth the listing master
13
came to be told this is a two day case - - -
14MR DEVRIES:
I wasn't involved in that - - -
15HIS HONOUR:
I understand that.
It requires explanation, and I
16
must say, these misestimates, false estimates, are
17
causing enormous difficulty for this court.
18
first time it's happened to me or to other judges, and
19
it's quite unacceptable.
20
was your side that gave the estimate, I would be asking
21
for an explanation as to how it came to be.
It's not the
Now, I will be - I assume it
22MR DEVRIES:
I will make enquiries - - -
23HIS HONOUR:
It's a Part 9 application involving seven
24
properties over nine years, four different causes of
25
action in a counterclaim, a bitterly contested series of
26
applications that have come before this court, and a case
27
where the defendant's put in issue not only the question
28
of contribution, but the existence of the relationship.
29
How two days was ever told to this court in good faith,
30
that escapes me.
31MR JOHNSON:
Your Honour, I can give some information if you
1.LL:SK 10/12/08 2Cressy
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JOHNSON XXN
1
like.
2HIS HONOUR:
Well, you say you're willing to party to that?
3MR JOHNSON:
The information I've received from the
4
Prothonotary's Office is that that was a hearing before
5
Master Kings.
6HIS HONOUR:
That's right, well, that's - - -
7MR JOHNSON:
The only party represented was the plaintiff by
8
Mr Devries' instructor.
9HIS HONOUR:
- - - directed those remarks to Mr Devries.
10MR JOHNSON:
Yes, Your Honour, I wish to assess.
11HIS HONOUR:
Nine 30 tomorrow?
12MR DEVRIES:
May it please Your Honour.
13ADJOURNED UNTIL THURSDAY 10 DECEMBER 2008
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