Brothel Gate Day 10 Full Day

1MR DEVRIES: Still proceeding, Your Honour.
2HIS HONOUR: Thanks. Now, Mr Johnson, has Mr Cockram arrived
3 at court?
4MR JOHNSON: Mr Cockram was served last night and he is
5 expected at 9.30. Before we call him, Your Honour, I'm
6 obliged to inform the court and my learned friends of
7 certain matters I believe regarding the continuation of
8 the defence's case. In light of my acquaintance
9 yesterday with – I think it was referred to as Knight's
10 case, the requirement to foreshadow certain things to the
11 court and my learned friends. Also my acquaintance with
12 Jones v. Dunkel as of last Friday. Plaintiff's counsels
13 fair warning that is given of his intended use of my
14 Family Law Act affidavit materials.
15 And the fact that this matter has to go forward to 9
16 February next year anyway, which is closer to my original
17 three to four week estimate, which as things have
18 progressed since the beginning of this year was probably
19 a bit skinny in any case. The defence case will not
20 close with Mr Cockram's evidence but I will be calling
21 necessary, expected and previously subpoenaed one or two
22 other witnesses when we resume in the new year.
23HIS HONOUR: You should be applying to do this. Let's go
24 through this. I don't see what Knight's case has got to
25 do with it?
26MR JOHNSON: There was a suggestion that a rule mentioned
27 yesterday by Mr Devries that he had to give me fair
28 warning about use of some of the materials from the
29 Family Law Act proceedings, and so I'm providing fair
30 warning as well. In terms of use of use of the Family
31 Law affidavits - - -
1.CI:CS 12/12/08 FTR:1 44 DISCUSSION

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1HIS HONOUR: I'm sorry. Well, you given some warning. That's
2 got no reason to put the case over till tomorrow. I'm
3 not sure what you're warning there.
4MR JOHNSON: Your Honour - - -
5HIS HONOUR: Knight's case involves certain costs and third
6 parties.
7MR JOHNSON: There we go. I'm only acquainted with the rule
8 from the fact that it was mentioned yesterday - - -
9HIS HONOUR: What's Jones v. Dunkel got to do with it?
10 Mr Devries has said that he will not take Jones v. Dunkel
11 point against you.
12MR JOHNSON: In respect of those four witnesses that we need
13 that agreement, and I perhaps made that a little hasty
14 because I should've negotiated for Your Honour to draw
15 positive inferences rather than zero inferences. But be
16 that as it may with the proposed use of the Family Law
17 affidavit material of mine, I intend to call
18 Ms Leanne Kelly my accredited family law specialist of
19 the period as my witness. Also Federal Magistrate
20 O'Dwyer who was amongst those I subpoenaed. Amongst the
21 28 I subpoenaed on 28 November this year.
22HIS HONOUR: If you're going to call that subpoena I would
23 suspect there'll be an application to have it set aside.
24 Have you called that subpoena on?
25MR JOHNSON: I suspect with some of the subpoenas that I will
26 call, they will be set aside.
27HIS HONOUR: Yes, I would to. Now, Leanne Kelly - - -
28MR JOHNSON: If I may - - -
29HIS HONOUR: You wish to call Leanne Kelly in relation to the
30 affidavit or - - -
31MR JOHNSON: The wording of that, "Lived with or partly lived

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1 with" - - -
2HIS HONOUR: Is Ms Kelly available?
3MR JOHNSON: I have not made enquiries overnight, Your Honour.
4HIS HONOUR: Why not?
5MR JOHNSON: Because she is one of a number of people I will be
6 calling.
7HIS HONOUR: Where is Ms Kelly's offices?
8MR JOHNSON: Either west of the Westgate Bridge or Moonee
9 Ponds, Your Honour.
10HIS HONOUR: I'm sure that Ms Kelly, being an officer of this
11 court, if requested will come to court post haste if she
12 can.
13MR JOHNSON: May I say I'm - - -
14HIS HONOUR: I'd stand the matter down for you to telephone her
15 and ask her if she'd like to attend as soon as she can.
16MR JOHNSON: There are several others that I – who are amongst
17 my 28 I subpoenaed on the 28th of the 11th, and I
18 foreshadow there'll be objections to the subpoena. Two
19 are my good friends Richard Anderson and Warwick Nelson
20 from Harwood Andrews.
21HIS HONOUR: What do you wish to subpoena Mr Anderson for?
22MR JOHNSON: They are relevant to the 2nd and 3rd defendants'
23 by counterclaims arguments, as foreshadowed of a no case
24 action. Also the issue of my credibility and the
25 suggestion that there's some sort of bullying, or I'm a
26 Herscu type, Flower Hart, Callanan type of vexatious
27 bully claim in joining the 2nd and 3rd defendant by
28 counterclaim. There may be others - - -
29HIS HONOUR: I don't see how they could give evidence in
30 relation to that. The question went – it was put - - -
31MR JOHNSON: They - - -

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1HIS HONOUR: Just let me finish first, Mr Johnson.
2MR JOHNSON: Certainly, Your Honour. It's complicated, Your
3 Honour.
4HIS HONOUR: It's not complicated. It's simply a matter of
5 listening or having the courtesy to do so. The questions
6 that were put to you related to your motivation in
7 writing some letters, which contained certain paragraphs
8 threatening action against Harwood Andrews. I do not see
9 how Richard Anderson or Warwick Nelson could give
10 evidence in relation to that. Secondly they're matters
11 that effect – simply put as to your credit as I
12 understand it, so that it's a collateral issue on which
13 extrinsic evidence is not admissible. In other words
14 Ms Sofroniou could not cross-examine or could not broach
15 an issue beyond cross-examining you, and you can't call
16 positive evidence on your credibility. What other
17 relevance apart from that would they have?
18MR JOHNSON: Your Honour has a number of correspondences - - -
19HIS HONOUR: Do they have a relevance apart from that?
20MR JOHNSON: Yes, Your Honour. Relevant to my proposition that
21 to the contrary I was trying to negotiate a reasonable
22 outcome ex gratia, the plaintiff having no vindicatible
23 claim against me without the necessity for protracted
24 litigation and legal expenses, Your Honour. May I also
25 make one other point which I think will bring this
26 altogether? Drawing out of my learned friend Mr Devries'
27 presentation yesterday afternoon. Now, if I play devil's
28 advocate and adopt his analysis of the domestic
29 relationship, the conclusion is that for all of Calendar
30 Year 2004, 2005, 2006 and later I was in three domestic
31 relationships. All three ladies were nourished

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1 financially. All three had or claimed to have or were if
2 briefly with child by me. All three relationships on
3 Mr Devries' analysis were for periods of in excess of two
4 years, and ended less than two years ago. All three
5 ladies would have standing to bring de facto property
6 claims against me under the old Act Part 9, or under the
7 new Relationships Act. Now, as a serial monogamist - - -
8HIS HONOUR: That's a very dangerous admission you're making
9 but - - -
10MR JOHNSON: As devil's advocate, Your Honour. As - - -
11HIS HONOUR: In relation to that – just calm down.
12MR JOHNSON: Yes, Your Honour.
13HIS HONOUR: In relation to that, what's relevant to that?
14MR JOHNSON: As a serial monogamist, living alone in a
15 household of one for all of that three year period, I
16 submit that's an abomination that I could be legally held
17 to be in even one domestic relationship.
18HIS HONOUR: That's a submission, and we aren't into
19 submissions yet.
20MR JOHNSON: I intend to call my girlfriend of the period,
21 Elisabeth Erasmus as a witness to that relationship I had
22 with her - - -
23HIS HONOUR: Was that - - -
24MR JOHNSON: - - -and my living arrangements - - -
25HIS HONOUR: - - - in 2004 to six wasn't it?
26MR JOHNSON: Early 2004, all of 204, all of 205, all of 206,
27 and into 2007. She can give evidence which - she's not
28 part of the arrangement - - -
29HIS HONOUR: I understand what you'd be seeking to call her to
30 give evidence to.
31MR JOHNSON: Thank you, Your Honour. Also, I'd say that as

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1 part of the plaintiff's case her solicitors David Hanlon
2 and Colin Twigg and former solicitor, her current
3 solicitor James Turnbull, swore affidavits to support her
4 case, particularly interlocutory proceedings. They
5 should have been made available to me to cross-examine on
6 their affidavits as part of the case - - -
7HIS HONOUR: No, that's not how a common law trial proceeds.
8MR JOHNSON: I will be calling on them by subpoena if necessary
9 to give evidence as hostile witnesses as - - -
10HIS HONOUR: They won't be hostile witnesses, they'll be your
11 witnesses.
12MR JOHNSON: Exactly, exactly, and no doubt they will seek to
13 contest those subpoenas also Your Honour.
14MR DEVRIES: Can I be heard on this Your Honour.
15HIS HONOUR: Yes, we'll do one at a time.
16MR JOHNSON: I have a couple of other clear warnings - - -
17MR DEVRIES: I'll put him finished, Your Honour.
18HIS HONOUR: No he hasn't finished.
19MR JOHNSON: I'm halfway through my pages of notes,
20 Your Honour, seven pages.
21MR DEVRIES: May it pleases Your Honour.
22HIS HONOUR: It doesn't please me Mr Devries, but I - - -
23MR DEVRIES: Yes.
24MR JOHNSON: Irrespective of any use Mr Devries or Ms Sofroniou
25 wish to make a judgment into that account, I'll be
26 submitting that that case is not now, if it ever was in
27 the previous 350 years good law in this jurisdiction,
28 because it's a back-door violation - - -
29MR DEVRIES: It's a principle. It's a submission for later on,
30 Your Honour.
31HIS HONOUR: It's a submission for later.

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1MR JOHNSON: Very well, I'll pass that Your Honour.
2HIS HONOUR: Jones v. Dunkel is still good law in civil trials,
3 it no longer applies in criminal trials. Continue on.
4MR JOHNSON: I'll be making similar submissions in respect of
5 the case's Generally v. Raithe and Daughter v. Denke, or
6 - I can't pronounce it. It's a submission.
7HIS HONOUR: Generally v. Raithe has got nothing to do with
8 this case.
9MR JOHNSON: Thank you, Your Honour. I give fair warning to
10 Mr Devries.
11HIS HONOUR: It seems to me Mr Johnson that, particularly from
12 your last couple of items is that you're just simply just
13 filibustering. You aren't now making a genuine
14 application in relation to your case. You – I've
15 remarked on this before and I'll do it again. My genuine
16 perception of you, is that you are a, to put it mildly, a
17 very intelligent person. I wouldn't be surprised if it
18 could actually be put more highly than that.
19 You have thus shown, if I may say so, a remarkable
20 ability when you want to, to understand how this case is
21 run. If you have not been an advocate before, or you
22 want to, you have displayed real natural skills in this
23 regard. I mean that genuinely. When you depart from
24 that, when you divert into irrelevancies and
25 filibustering like this, there's a clear inference that
26 you're doing it to waste time, and try to derail the
27 case, because you're too intelligent not to understand
28 that's what you're doing.
29 You're not assisting your case. I've tried to
30 remind you of that, not simply to get this case finished,
31 but so you will in this case, do justice to yourself.

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1 Because when I come to write my decision, I want to do it
2 in a way which is fair, not just to the plaintiff, but to
3 you. You're not assisting yourself trying these tactics
4 on me. I've told you, for better of for worse, I've been
5 around these courts all my professional life, and I can
6 see through this tactic and it doesn't divert me.
7 You're better off sticking to sensible submissions
8 of which I know you are capable to assist yourself.
9 Having given you that bit of advice in your best
10 interests, can you now make to me a sensible submission
11 about what you want to do today, and what you want to do
12 about it.
13MR JOHNSON: Given that we have to go into February in the new
14 year, my view is that these proceedings, and these second
15 proceedings should have proceeded together. I've been
16 disadvantaged by - - -
17HIS HONOUR: I've overruled that, because there's no way the
18 other proceedings could proceed with this. Firstly,
19 there's a different plaintiff in them as I understand it.
20 Secondly, there are a series of defendants. I can't
21 simply mold the two and bring them in here without any
22 notice. Thirdly, no application was properly made to do
23 that before this trial.
24 No order to that effect had been made. There seems
25 to me to be no disadvantage to you in having this case
26 proceed, and indeed it would seem to me despite your best
27 endeavours to the contrary to be in your very best
28 interest to have this case heard and determined and
29 disposed of.
30MR JOHNSON: Your Honour, as I mentioned on the morning - - -
31HIS HONOUR: Now you can get out of your head this - any idea

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1 that I'm going to bring the other proceeding into this
2 proceeding. I'm hearing Action No.9665 of 2007 and that
3 is all. Now I'll just proceed with that.
4MR JOHNSON: I have a copy - - -
5HIS HONOUR: What witnesses do you say you now wish to call?
6 It seems to me to be the basis of an application by you
7 to put the matter over until next year or not to proceed
8 beyond today.
9MR JOHNSON: I believe natural justice requires - - -
10HIS HONOUR: And if you don't close the case today? Who do you
11 wish to call? You've foreshadowed one witness so I can
12 understand you may wish to call, that's Leanne Kelly.
13 You foreshadowed a second witness I understand you may
14 wish to call.
15MR JOHNSON: Elisabeth Erasmus.
16HIS HONOUR: Elisabeth Erasmus. I can understand that she will
17 go to a relevant issue.
18MR JOHNSON: Thank you Your Honour.
19HIS HONOUR: Now keeping your high intellect steadily focussed
20 on the issues that are in this case, what other
21 witnesses, sensibly, do you wish to court.
22MR JOHNSON: The Federal Magistrate, Damian O'Dwyer.
23HIS HONOUR: Well, why do you wish to call His Honour?
24MR JOHNSON: So we can discuss the hobbling based on orders
25 obtained by Mr Devries, 90 per cent drafted by him in
26 that jurisdiction.
27HIS HONOUR: Well that's got nothing to do with the issues in
28 this case that would be relevant.
29MR JOHNSON: It does go to a number of issues Your Honour.
30HIS HONOUR: It goes to no issues. What issue does it go to?
31MR JOHNSON: It goes to um - I had - I wish to give Mr Devries

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1 fair warning that I will be - and I can refer to a number
2 of examples even from yesterday afternoon's presentation.
3 I'll be asking Your Honour to consider your residual and
4 continuing jurisdiction under Chapter 4 of the Legal
5 Practice Act to deal with misconduct complaints which I
6 have made a number of times.
7HIS HONOUR: That is not a matter before me. My jurisdiction,
8 in this case, is to hear the claim and the counterclaim.
9 I've - - -
10MR JOHNSON: Unfortunately - - -
11HIS HONOUR: - - - you've already given me a bad throat, having
12 to remind you of that throughout this case.
13MR JOHNSON: I apologise for having - - -
14HIS HONOUR: I don't wish to strain my voice any further today
15 by having to constantly repeat that. Now for a moment
16 you had some sensible focus. You've identified two
17 witnesses who it would seem to me to be relevant to call
18 in your own interests. Leanne Kelly and Elisabeth
19 Erasmus. Who else do you wish to call in relation either
20 to the claim against you or any of the causes of action
21 stated by you in your counterclaim?
22MR JOHNSON: Your Honour, there are the other witnesses that I
23 mentioned moments ago. Your Honour - - -
24HIS HONOUR: Who? Do you wish to call Mr - - -
25MR JOHNSON: The four people from Harwood Andrews - - -
26HIS HONOUR: Sorry?
27MR JOHNSON: - - - and Mr Turnbull as well.
28HIS HONOUR: Which ones from Harwood Andrews? Let's go through
29 them. You wish to call Mr Hanlon?
30MR JOHNSON: In chronicle order, David William Hanlon.
31HIS HONOUR: Yes?

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1MR JOHNSON: Colin Twigg.
2HIS HONOUR: You appreciate if you call Mr Hanlon, you cannot
3 cross-examine him? That you'll only be able to ask him
4 non leading questions?
5MR JOHNSON: Thank you Your Honour. I - I didn't, but even as
6 a hostile witness - - -
7HIS HONOUR: I think you did.
8MR JOHNSON: - - - you can't.
9HIS HONOUR: You would have to prove hostility in the technical
10 sense of that word.
12HIS HONOUR: You can't simply call a witness for the purpose of
13 hostilling him.
14MS SOFRONIOU: And I'd object to that course in due course Your
15 Honour.
16HIS HONOUR: Well I'd hear from Ms Sofroniou. I'm just getting
17 submissions from you at the moment. So we'll call
18 Mr Hanlon.
19MR JOHNSON: M'mm. Mr Colin Twigg on exactly the same
20 principles, including an anticipated objection.
21HIS HONOUR: I don't understand what Mr Twigg's got to do with
22 the case. You haven't led any evidence as yet relating
23 to Mr Hanlon or Mr Twigg, but let's proceed on.
24MR JOHNSON: Richard Anderson and Warwick Nelson.
25HIS HONOUR: In relation to what?
26MR JOHNSON: Some of the materials that are in exhibits, being
27 correspondence passing between myself and those
28 (indistinct).
29HIS HONOUR: Those documents are in.
30MR JOHNSON: Yes, but only as to sending and receipting, not as
31 to the contents Your Honour.

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1HIS HONOUR: The contents speak for themselves. I can read.
2MR JOHNSON: I just wasn't aware that you could draw inferences
3 of the fact out of the contents as the exhibits that have
4 been put to you Your Honour.
5HIS HONOUR: I don't understand, part of the fact finding
6 process is drawing proper inferences, not guesses where
7 you establish principles.
8MR JOHNSON: Thank you, Your Honour.
9HIS HONOUR: I don't see any relevance in Mr Henderson or
10 Mr Nelson.
11MR JOHNSON: I may wish to call one or more members of the
12 Victoria Police.
13HIS HONOUR: To do with what?
14MR JOHNSON: All such members were amongst my subpoenas.
15HIS HONOUR: In relation to what?
16MR JOHNSON: Certain actions of the parties during or Ms Cressy
17 in particular during the alleged period of this alleged
18 domestic relationship and subsequent.
19HIS HONOUR: Well, that's too vague a basis for adjournment.
20 Identify what issue.
21MR JOHNSON: One goes to that incident on the grand final
22 weekend 2007.
23HIS HONOUR: That's irrelevant, that's outside any relevant
24 period.
25MR JOHNSON: Another goes to the circumstances that Mr Peter
26 Cockram will give evidence about which was instrumental
27 in - - -
28HIS HONOUR: Mr Cockram was allegedly having an affair with the
29 plaintiff.
30MR JOHNSON: Amongst other things, Your Honour, which led to
31 my - - -

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1HIS HONOUR: I don't see any relevance in those witnesses being
2 subpoenaed.
3MR JOHNSON: Your Honour, that's the turning point of which I
4 moved into my household of one, Your Honour, in Bourke
5 Street in the city.
6HIS HONOUR: Apart from the police.
7MR JOHNSON: Perhaps one or two health industry professionals,
8 Department of Human Services and/or hospital people.
9 Again relating to that grand final incident.
10HIS HONOUR: That's got nothing to do with this case, this is
11 not the Family Law Court.
12MR JOHNSON: It's a tipping point, Your Honour.
13HIS HONOUR: Nothing to do with this case, I would rule that
14 evidence inadmissible.
15MR JOHNSON: I wish to give a fair warning to Mr Devries and I
16 will specifically refer to a number of actions of
17 Mr Devries since the commencement of these proceedings to
18 support a basis for my application that Your Honour
19 consider your residual and continuing jurisdiction for
20 misconduct complaints under Chapter 4 of the Legal
21 Practice Act.
22HIS HONOUR: I have no such jurisdiction as I can see it, my
23 reading is - - -
24MR JOHNSON: It's clear in the legislation.
25HIS HONOUR: - - - that dispute is if any complaint is made to
26 the Commission I would not deal with any complaint in
27 this proceeding. The only concern I have quite frankly
28 is that some of the wild and unsubstantiated allegations
29 you have been making as a practitioner of 18 years
30 standing, as a man who says he has served on committees
31 for the Institute and who says he has in his bag or in

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1 his possession a book on ethics. That is why I raised
2 that with you yesterday, but that is not a matter for my
3 jurisdiction at all, other than it may go to issues of
4 credit. Now, let us proceed.
5MR JOHNSON: Your Honour, the problem here - - -
6HIS HONOUR: Let us proceed.
7MR JOHNSON: The problem here is there are overlapping
8 jurisdictions and I agree with you the Legal Services
9 Commissioner as the dominant jurisdiction.
10HIS HONOUR: He does, I would not entertain it. You are
11 wasting the court's time and it seems to me you are
12 discrediting your application.
13MR JOHNSON: I would like to say that those allegations are
14 perhaps wild but they are also carefully substantiated.
15HIS HONOUR: They are wild. Mr - - -
16MR JOHNSON: I may refer to a number of - - -
17HIS HONOUR: Mr Johnson, it seems to me the more you beat on
18 this drum the more you are simply proving the lack of any
19 genuine intent in this application for an adjournment.
20MR JOHNSON: May I give half a dozen examples, Your Honour,
21 just from when this trial proceedings commenced.
22HIS HONOUR: If you want to persuade me to continuing today and
23 force me to close your case you can. This is not
24 relevant. I would entertain - I would not say I would
25 accede to but I would entertain application not to
26 require you to close your case today, if you were able to
27 persuade me that you had some genuine witnesses who it
28 would advance your interests to call. Now, so far it
29 seems to me you have pointed to two, Leanne Kelly and
30 Elizabeth Erasmus. Mr Hanlon, I assume, would relate to
31 the counter-claim, I want to hear from Ms Sofroniou on

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1 that, but I would not allow him to be called simply to be
2 made hostile or an application for hostility simply
3 because he gives evidence you don't like. The rest I
4 have yet to discern any relevance.
5MR JOHNSON: Your Honour, doesn't the relevance speak for
6 itself where a solicitor swears an affidavit on behalf of
7 a client that that solicitor should be available for
8 cross-examination as part of the presentation of the
9 client's case?
10HIS HONOUR: I have already explained what the position is,
11 there are no affidavits before me other than those that
12 have been put to you as an inconsistent statement. If
13 you wish to call Mr Hanlon, subject to hearing from
14 Ms Sofroniou, you can call him, but you will not have a
15 right to cross-examine him.
16MR JOHNSON: Thank you, Your Honour. The absence of affidavits
17 from the plaintiff's side of the case was due to my not
18 knowing - and I believe that I have maybe not good but
19 reasonable excuse for not knowing that all of the
20 parties' affidavit materials are already before Your
21 Honour as part of the body of evidence. I simply didn't
22 know that I needed to cross-examine - - -
23HIS HONOUR: I don't know how many times I told you that the
24 affidavits are not before me as part of the evidence.
25MR JOHNSON: But they were before Federal Magistrate O'Dwyer.
26HIS HONOUR: Mr Johnson, you are wasting time and you're
27 beginning to talk me out of any inclination to grant your
28 application. Just simply identify to me the genuine
29 basis upon which you say you don't wish to close your
30 case today. Perhaps while you are doing so do you think
31 that Mr Richards would check to see if Mr Cockram is

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1 outside court. Mr Cockram has arrived. It seems to me
2 perhaps before he disappears we ought to hear from him.
3MR DEVRIES: Before we do, Your Honour, can I just rise to
4 mention one thing. In my submission - - -
5HIS HONOUR: If it's quick.
6MR DEVRIES: It will be very quick. In my submission the only
7 two relevant witnesses are Ms Kelly and Ms Erasmus - - -
8HIS HONOUR: He hasn't finished yet.
9MR DEVRIES: But, Your Honour, I would be submitting to Your
10 Honour that he should now call them and get them to
11 court, so that we can at least get them out of the way
12 today because he could have got them to court, they are
13 available. Certainly Ms Kelly would be available as a
14 solicitor unless she has gone on holidays and to adjourn
15 the matter just for those two and they are both present
16 and available.
17HIS HONOUR: Mr Devries, the matter has got to be adjourned
18 anyway because it won't on any view finish. One of the
19 reasons it won't finish is because you are unavailable
20 next week. I will ask the defendant to contact
21 Ms Erasmus and Ms Kelly now to see if they can come to
22 court now, we will deal with Mr Cockram.
23MR DEVRIES: That's why I'm asking before we call Mr Cockram.
24HIS HONOUR: Yes.
25MR DEVRIES: That's all I'm asking Your Honour, and I apologise
26 if I have taken too much time to ask that.
27HIS HONOUR: Well, I think I have wasted my time sitting long
28 hours, all I have done is destroyed my own health and I
29 won't do it again when this case resumes. Mr Johnson,
30 I'm going to rise. I would direct you to telephone
31 Ms Kelly and Ms Erasmus to see if they can come to court

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1 today to give their evidence. What happens if they are
2 part heard in their evidence Mr Devries? You won't be
3 here next week to do anything about it? All right, see
4 if you can get them in and otherwise we will hear from Mr
5 Cockram in 10 minutes.
6MR DEVRIES: May it please Your Honour.
8 (Short adjournment.)
9HIS HONOUR: Did you contact Ms Kelly and Ms Erasmus?
10MR JOHNSON: I was unsuccessful in my two attempts to contact
11 Leesy, Elizabeth. Ms Kelly, I spoke with her through the
12 intermediary of her own personal assistant.
13HIS HONOUR: Yes.
14MR JOHNSON: Ms Kelly is not available to attend court today
15 and she is adverse to the idea of giving evidence. We
16 have certain issues, Ms Kelly and I, regarding her - - -
17HIS HONOUR: I don't need to know that.
19HIS HONOUR: It's a matter for you. I'll give - - -
20MR JOHNSON: Also - sorry, Your Honour. I did just introduce
21 myself to the witness, Peter Cockram who I had not met
22 until only a few moments ago. It seems quite clear to me
23 that he is not going to be a cooperative witness, Your
24 Honour, and so I will need to have evidence given in the
25 same session by Constable Jennifer Locke from the
26 St Kilda - - -
27HIS HONOUR: You may need to but I don't see any relevance.
28 You've subpoenaed Mr Cockram who will give evidence.
29MR JOHNSON: He's not going to be cooperative, Your Honour.
30HIS HONOUR: Mr Johnson, I don't know that. I'm sure
31 Mr Cockram will do - he's here on subpoena, I'm sure that

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1 he will tell the truth. Let's call Mr Cockram without
2 any more deliberate time wasting on your behalf.
3MR JOHNSON: As Your Honour pleases.
4<PETER FRANCIS COCKRAM, affirmed and examined:
5HIS HONOUR: Mr Cockram, you may be seated. Mr Cockram, your
6 full name is Peter?---Francis Cockram.
7Peter Francis Cockram. Your address, it can be professional if
8 you don't wish to give your residential address?---I live
9 at 15 Feversham Avenue in Park Orchards.
10Yes, and what is your occupation?---I'm an accountant.
11Thanks, Mr Cockram. Now, you probably know nothing about this
12 case and Mr Johnson - - -?---I don't know what I'm doing
13 here, Your Honour.
14No, and Mr Johnson has had served on you a subpoena to have you
15 brought to court today in this case. Mr Johnson, he's
16 your witness.
17MR JOHNSON: Thank you, Your Honour. Can you tell His Honour
18 how long you have lived at that Park Orchards address?
19 ---Um, I - I believe about 15 years, Your Honour.
20Have you ever been employed by or done any consulting work for
21 the Salvation Army?---I - I've been employed by the
22 Salvation Army.
23What was the duration of that employment, please, sir?
24 ---Approximately four - four and a half years.
25Over what timeframe, Mr Cockram?---I left there last March so
26 that was four and a half years - - -
27That would be from September 2002 to March 2007?---That would
28 probably be it, yes.
29Thank you, sir. I'm not sure of the appropriate warning, or
30 whether any warning's appropriate, Your Honour. Because
31 some of the questions I wish to as Mr Cockram - - -

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1HIS HONOUR: Ask the questions, if any cautions are needed, I
2 will give it.
3MR JOHNSON: Mr Cockram, do you or have you at any time known a
4 lady by the name of Pippin Cressy?---I don't know.
5You don't know if you've known her?---Your Honour, I had a
6 stroke and I'm already - has - has little - a lot - and
7 there's lots of things I don't remember in my life.
8HIS HONOUR: When did you have your stroke, Mr - - -?---In
9 2002, Your Honour.
10And it's affected your ongoing memory?---Yes.
11MR JOHNSON: Has that affected your memory of events before
12 2002 or after 2002?---Um, more so before because I'm
13 still gradually rebuilding my life.
14HIS HONOUR: Yes.
15MR JOHNSON: Mr Cockram, have you ever been known by or adopted
16 any other names other than Peter Francis Cockram?---I
17 wouldn't think so, why would I want to do that?
18Have you ever, at any time for any purpose, assumed my name,
19 James Johnson?---I've never met or known who you are.
20 I've got no idea what I'm doing here.
21That doesn't quite answer the question, Mr Cockram. Have you
22 ever used my name, James Johnson, as if it were your
23 name?---No. Not that I'm aware of anyway.
24I'd like to show the witness a document, Your Honour.
25 Mr Cockram, this document it's an email message, isn't
26 it?---Appears to be so.
27And it's sent from a James Johnson - - -
28MR DEVRIES: Your Honour?
29HIS HONOUR: Yes?
30MR DEVRIES: The witness should be asked if he has seen this
31 email as a - - -

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1HIS HONOUR: I don't know what it is. Is it?
2MR DEVRIES: Your Honour, he shouldn't be asked the contents
3 unless he first of all identifies whether he knows
4 anything about the document.
5MR JOHNSON: I will come to that Your Honour.
6HIS HONOUR: No, you will come to it now.
7MR JOHNSON: He would not have seen this as such because it
8 would have been electronic. (Indistinct).
9HIS HONOUR: Well, you've put an email before Mr Johnson. What
10 question do you ask before Mr Cockram?
11MR JOHNSON: Interesting slip Your Honour. I intend to ask him
12 whether he was the author and whether he sent this to me.
13 But I intend to do that later after this steps.
14HIS HONOUR: Well you can ask him that now.
15MR JOHNSON: Mr Cockram, did you write this email?---I couldn't
16 tell you that.
17Could you look at the date that the email was sent? Tuesday
18 16 December 2003. Isn't that correct?---That's what it
19 says on this document.
20If you had sent that email to me at that date, would you be
21 able to remember that, or would your memory be affected
22 by the stroke you said you had in 2002?---I don't
23 remember anything about this document at all. Remember
24 (indistinct).
25May I ask you to read who it was sent from? James Johnson?
26MR DEVRIES: Your Honour, I object. If he knows nothing about
27 this document, he cannot give any evidence about this
28 document.
29HIS HONOUR: Well I agree, but I haven't heard the question yet
30 Mr Devries. You've just jumped the gun a shade.
31MR DEVRIES: I'm sorry Your Honour.

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1HIS HONOUR: Mr Johnson, what do you want him to do?
2MR JOHNSON: I want to ask him about the Hotmail account from
3 which this email was sent.
4HIS HONOUR: You can ask him if he identifies that Hotmail
5 account.
6MR JOHNSON: Mr Cockram, can you identify that Hotmail account?
7 Jamesjohnston751@hotmail.com?---I'm sorry Your Honour. I
8 don't.
9HIS HONOUR: You don't know anything about that Hotmail
10 account?---No Your Honour. (Indistinct). I've lost the
11 (indistinct) Your Honour.
12Yes. No, if you don't recognise it, you don't recognise it.
13MR JOHNSON: Do - is this something that you might have
14 forgotten, or do you have a clear?---I got nothing
15 (indistinct). I have no idea what I'm here for.
16HIS HONOUR: Mr Johnson - - -?---(Indistinct response).
17- - - you cannot ask him any questions about a document he has
18 not identified and if he doesn't identify it, he doesn't
19 identify it. Now don't get upset Mr Cockram.
20MR JOHNSON: We're actually at the point Your Honour where I
21 anticipated we would be before the witness was called.
22HIS HONOUR: Well I didn't anticipate anything. There's
23 nothing I could anticipate in this case, including its
24 conclusion, but what - you're bound by your witnesses's
25 answer. He doesn't identify the document.
26MR JOHNSON: And on that basis I have no - - -
27HIS HONOUR: He has sworn he doesn't know.
28MR JOHNSON: - - - more questions for this witness about this
29 document.
30HIS HONOUR: Thank you Mr Johnson.

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1HIS HONOUR: Mr Devries, do you have any questions of
2 Mr Cockram?
3MR DEVRIES: Absolutely not Your Honour.
4HIS HONOUR: Ms Sofroniou?
5MS SOFRONIOU: No Your Honour.
6HIS HONOUR: Thank you. Mr Cockram, thank you for your
7 attendance. It's all probably been very bemusing to
8 you?---I've got nothing.
9If I tried to explain to you about it, I don't think it would
10 probably clarify anything at all. All I can say is it's
11 been an unusual case. Thank you very much for your
12 attendance. I trust that you weren't put under any
13 pressure and you are now excused from attendance?---Thank
14 you Your Honour.
15 (Witness excused.)
16<(THE WITNESS WITHDREW)
17MR JOHNSON: There is one minor footnote to that evidence Your
18 Honour. It became clear that the original subpoena,
19 despite an affidavit of service being sworn by
20 Mr Wittekind was not actually served on that witness.
21 There was a second affidavit of service sworn by the same
22 process server, who the witness - actually my um,
23 concierge at my apartment, she tells me that she was in
24 Adelaide, so couldn't possibly have been served, so we
25 appear to have had two falsely sworn affidavits of
26 service by Mr Wittekind.
27HIS HONOUR: Well that's a matter for you to take up with the
28 authorities.
29MR JOHNSON: I said to the - - -
30HIS HONOUR: Now let us proceed with this case.
31MR JOHNSON: Your Honour given that evidence I most definitely

2Cressy
1 need to call Miss Jennifer Locke of the St Kilda Road
2 Police Station, who wants to give evidence.
3HIS HONOUR: For what subject?
4MR JOHNSON: Contradicting the evidence that Mr Cockram has
5 given, and identifying Mr Cockram, and the investigation
6 that Constable Locke undertook.
7HIS HONOUR: To prove what in relation to this issue? This
8 case?
9MR JOHNSON: To prove Your Honour that there was a
10 relationship, a domestic - sorry a sexual relationship, a
11 lengthy duration of relationship between the plaintiff
12 and that witness Your Honour.
13HIS HONOUR: How would Ms Locke be able to prove that?
14MR JOHNSON: By - virtue of her having interviewed the
15 plaintiff and Mr Cockram in respect of that relationship
16 during the early part of 2004 Your Honour.
17HIS HONOUR: Well any out of court spoken by Mr Cockram would
18 be inadmissible as hearsay. If there was any admission
19 made by the plaintiff to that effect, that may have some
20 relevance. I'll hear from Mr Devries on that. It's a
21 matter that's of really rather than anticipating evidence
22 see what comes. In a confused and probably deliberately
23 so manner, Mr Johnson seems to be stating that he cannot
24 close his case, not withstanding he's called Mr Cockram.
25 That fully doesn't affect you as much as it does
26 Ms Sofroniou and I, but he has obviously identified a
27 number of witnesses, the large majority of whom don't
28 seem to relate to this case at all, but there are three
29 who potentially may. That's Leanne Kelly in relation to
30 the affidavit on which the plaintiff relies as containing
31 an admission. It goes to the existence of the domestic

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1 relationship. Elisabeth Erasmus who would go to the -
2 who may potentially be relevant to this issue, and so
3 (indistinct) Ms Sofroniou and Mr Hanlon and no doubt he
4 wishes to call in relation to the allegations made
5 against Ms Daniel and Harwood Andrews, as yet totally
6 unsubstantiated, so in the mean - the counterclaim,
7 The case isn't going to finish today anyway on any
8 stretch of the imagination so that it would seem to me,
9 subject to all probabilities of hearing from Ms Sofroniou
10 and from you, I don't see how I can force him to close
11 his case today or require him to do so.
12MR DEVRIES: I don't believe - sorry, with respect Your Honour,
13 I don't believe I could even ask you to force Mr Johnson
14 to do that. In respect to the witnesses is the
15 following, there is nothing to stop Mr Johnson here and
16 now calling Mr Hanlon, he is present in court and he is a
17 compellable witness.
18HIS HONOUR: I will hear from Ms Sofroniou on that because she
19 foreshadowed an objection but I agree with that
20 otherwise.
21MR DEVRIES: With respect, Your Honour, the objection arises as
22 soon as Mr Johnson made that application. There is
23 nothing to stop him saying those words, "I call
24 Mr Hanlon," and we'll see what happens. As for the other
25 two witnesses, Mr Johnson has been aware of the issues
26 for a number of those. It's only last night he says that
27 he has decided he wants to call these people. He knew
28 what the issues were - - -
29HIS HONOUR: I can't shut him out though because - - -
30MR DEVRIES: I'm not suggesting that, Your Honour.
31HIS HONOUR: So what is the point?

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1MR DEVRIES: The point is, Your Honour, I will be seeking my
2 client's costs of today because effectively they have
3 been wasted.
4HIS HONOUR: I will hear your application, but it seems we have
5 got to go over from today anyway.
6MR DEVRIES: We do, Your Honour.
7HIS HONOUR: Yes, but let's not waste time now.
8MR DEVRIES: Five hours of today has been wasted if Mr Johnson
9 can't go any further today.
10HIS HONOUR: Let's just see. Without having speeches. Sorry,
11 Mr Devries, but - - -
12MR DEVRIES: It was an application rather than a speech, Your
13 Honour.
14HIS HONOUR: You foreshadowed an application, I will hear from
15 Ms Sofroniou.
16MR DEVRIES: Thank you, Your Honour.
17MS SOFRONIOU: Your Honour, there are two matters to address
18 Your Honour on, the first is the conduct of the matter
19 generally. It may be that I can't convince Your Honour
20 out of the course that Your Honour has adumbrated.
21 However, I think I owe it to the people sitting behind me
22 to just make a couple of points about that very shortly.
23 Your Honour, at the very opening of this case the first
24 day was taken up with applications concerning litigation
25 guardians. As was Mr Johnson's right he resisted that
26 application and Your Honour has ruled accordingly. In
27 light of that my submission is, albeit his status as
28 litigant in person, and I hope the fairness that this
29 side, as well as the court, has tried to show him in that
30 regard there is no doubt about it an elephant in the room
31 that should be addressed.

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1 My submission, and it's only my suggestion which
2 could be wrong, it's not a legal one, is that the act of
3 closing the defendants case is likely to be one of great
4 anxiety for Mr Johnson and one which perhaps
5 understandably he would seek to delay. I don't say that
6 by way of criticism and I may be wrong about that.
7 However, in light of the speech he gave today where he
8 was going through a list of possible people who might be
9 summoned or since it was inevitable that the matter of
10 going to go to February, I draw on that to make that
11 submission to Your Honour.
12 The thing that is omitted in all of this is that the
13 position of the second and third defendants by counter-
14 claim is not the same as the other parties. It is not
15 inevitable for us that the matter goes in to February.
16 Where I come from at least it's common among counsel that
17 if other counsel says they're unavailable that is given
18 respect to. I am unaware of why Monday, Tuesday,
19 Wednesday are unavailable next week. If my friend tells
20 me that it's impossible, then I accept that. All I am
21 saying is we actually don't understand why we have to
22 come back in February. That position is strengthened
23 when one looks at the cross-claim itself, because I have
24 foreshadowed one of those rare applications, a no case to
25 answer submission, rarely even made let alone upheld, and
26 this is a screamingly cogent example of where an
27 application at least ought to be made, not wanting to
28 pre-empt it's outcome, the substance of the claim claims
29 malice and maleficence of a type that most - as Your
30 Honour has gleaned from Mr Johnson - most legal
31 practitioners don't even put on paper without having some

2Cressy
1 cogent evidence to back it.
2 Mr Johnson, and I am moving onto the second matter
3 now, is now purporting to call the party whom he has
4 accused of that because it has got something to do with
5 the counter-claim. In my submission that should be seen
6 through on two different grounds. First of all Mr
7 Johnson has quite candidly complained that he hasn't had
8 an opportunity to cross-examine. He thought that he
9 would have access to affidavits and cross-examination to
10 do that and he has been, as he may see it, stymied
11 because I am making an application that the case be
12 dismissed before I need to call him. I submit to Your
13 Honour that the request to call him is a pre-text. It is
14 an attempt to try to put to Mr Hanlon things that are
15 irrelevant, that are perhaps even scandalous and I have
16 some strength in making that submission because Your
17 Honour has seen enough of the correspondence and the
18 state of mind that has passed between those parties to
19 make it clear that this is a collateral device.
20 Furthermore, if Mr Johnson did wish to call Mr Hanlon, my
21 submission would be that if Your Honour didn't see it as
22 a pre-text and just say enough, this court is not going
23 to be used to continue whatever anxiety issues Mr Johnson
24 may have in this. The court process will not be used
25 that way. There are several legal practitioners in here
26 who have had to leave their practices, quite properly,
27 because they are parties to this case.
28HIS HONOUR: I have observed that.
29MS SOFRONIOU: That the court will draw the line and say
30 enough, and if that's an appellable issue, it's an
31 appellable issue, but that is enough. At the very least

2Cressy
1 would Mr Johnson in respect of any of the further
2 witnesses he says he wishes to call, a conviction that is
3 by no means firm when he discusses them and which we have
4 already seen from Mr Cockram's useful evidence where the
5 man has almost had to be arrested that it was of no help
6 to the court at all, would Mr Johnson at the very least
7 provide this court with the detailed basis - maybe even
8 down to the questions that he proposes to ask these
9 witnesses, before he is given leave to do so, because in
10 the history and circumstances of this case my clients are
11 now going to be dragged back in February at the edge of a
12 no case submission. I am sorry to roll both of those
13 submissions into one.
14HIS HONOUR: No, I can understand, Ms Sofroniou, I will say
15 this that I have great sympathy for the position that
16 your client has been placed in, there being brought to
17 this court the type of allegations contained in the
18 counter-claim. In my long years in this area, both at
19 the Bar and the judiciary, I would not have seen even a
20 handful of times, if that, because of the ethics
21 And I've waited for nine days to hear that evidence.
22 Mr Johnson deliberately expressly declined the
23 opportunity to cross-examine Ms Cressy when you had
24 elicited from her that he had absolutely nothing to do –
25 Mr Hanlon had nothing to do with the taking of the
26 documents in the other matters from Dorrington Street by
27 Ms Cressy. It seemed to me then Mr Johnson was doing
28 everything but walk away from the allegations he was
29 making.
30MS SOFRONIOU: Indeed Your Honour.
31HIS HONOUR: His desire now to call Mr Hanlon, in my view, does

2Cressy
1 invite the type of comment that you have addressed to me
2 as a perfectly proper comment you have, or submission you
3 have made.
4MS SOFRONIOU: If it please the court, Your Honour.
5HIS HONOUR: The difficulty I do have is that one could only I
6 think in very rare occasions, refuse to permit a witness
7 to be called if the witness is patently irrelevant. But
8 Mr Hanlon strictly can't be forced to go to the witness
9 box. He can be invited to it, if he didn't do, so I
10 suppose Mr Johnson could subpoena him, and then you could
11 apply to set aside the subpoena.
12 Mr Johnson I suppose could erect some sort of
13 argument to say, "Well I wish to ask questions of
14 Mr Hanlon relating to the allegations of the
15 counterclaim".
16MS SOFRONIOU: It's at that point, Your Honour, that my
17 submission comes in - - -
18HIS HONOUR: As you could.
19MS SOFRONIOU: Given the manner in which the counterclaim part
20 of his case is being conducted, for Mr Hanlon to be a
21 witness in his case, in my submission, Mr Johnson should
22 be asked to make that proposition - - -
23HIS HONOUR: He should identify what issues he's going to ask
24 Mr Hanlon about.
25MS SOFRONIOU: Yes, and not at the level of generality of, "Oh
26 it's about the counterclaim".
27HIS HONOUR: It seems to me that that is not only improper, but
28 it is a very caging submission, and I agree with it, if
29 for no other reason that to try to get some sort of
30 management into this case. I think it's best that we
31 address that issue now. Thanks Ms Sofroniou, that's of

2Cressy
1 assistance.
2 Mr Johnson, Mr Hanlon is of course not compellable
3 at the moment. But before I were to ask Ms Sofroniou to
4 accede to your request that he give evidence in your case
5 and against him, which you so far have to - seemed to me
6 expressly declined to address, you would need to put to
7 me proper basis upon which you wish him to be called.
8 What are the issues in which you wish to ask? The issues
9 which I hasten to add, although it should be unnecessary
10 at this stage of the trial, issues in – which have been
11 pleaded in the action.
12 When I say pleaded, I mean set out in print, in
13 black and white in the claim which is a writ, a statement
14 of claim, and the amended defence and counterclaim.
15MS SOFRONIOU: Do you wish Mr Hanlon to leave the room while
16 that answer's is heard?
17HIS HONOUR: No, he's a party. He's entitled to hear.
18MS SOFRONIOU: Fine.
19MR JOHNSON: Thank you, Your Honour, I commend my learned
20 friend once again for an excellent set of submissions. I
21 see exactly where she's coming from. I'm just looking at
22 the situation from a little step around to the left.
23HIS HONOUR: I'm not interested in your little processes. What
24 I have done - - -
26HIS HONOUR: - - - before I even issue an invitation to
27 Ms Sofroniou to request her client to go into the witness
28 box as a witness in your case - - -
29MR JOHNSON: Yes, Your Honour - - -
30HIS HONOUR: What I wish to do, is to have some understanding
31 as to how that would be relevant rather than to subject

2Cressy
1 Mr Hanlon to the type of questions that we've just heard,
2 and the type of wild allegations that so far have been
3 made in this case without any object to substantiate
4 them. Mr Johnson, what issues – what do you wish to ask
5 Mr Hanlon?
6MR JOHNSON: There are two issues, Your Honour.
7HIS HONOUR: Yes.
8MR JOHNSON: Ms Sofroniou is in effect requesting that I
9 provide interrogatories.
10HIS HONOUR: No, I'm asking – I'm not asking that. What are
11 you – what do you wish to address, because all Mr Hanlon
12 is asked if he would be good enough to give evidence on
13 your behalf?
14MR JOHNSON: Yes, these are two issues that I would require
15 those answers to those interrogatories before I could
16 plead this type of - - -
17HIS HONOUR: What question?
18MR JOHNSON: Claim properly. They go to the - - -
19HIS HONOUR: What question?
20MR JOHNSON: They go to the independence of mind brought by the
21 legal practitioner to the claims of the client before
22 taking steps, or as soon as reasonably practical
23 thereafter. The first of those steps - - -
24HIS HONOUR: I'll just ask you why that's relevant - - -
25MR JOHNSON: - - -was the investigation of the claims set out in
26 the caveat, and therefore justifying the Callanan caveat
27 that Harwood Andrews lodged to support the equitable
28 charge of that period, which is of course the creation of
29 the security interest attaching to my asset.
30 Secondly, the investigations that a certain legal
31 professional took into the relevance of the documents

2Cressy
1 removed from my home, recovered by the police to the
2 proceedings in the Family Law jurisdiction, in which they
3 were subpoenaed, and locked out of me when I only did
4 them for commercial purposes so that I could step back
5 into my legal practice that I'd been shaken out of for
6 more than 12 months, Your Honour.
7 Secondly, the relevance of that said body of my very
8 important commercial and personal records to these
9 proceedings. I submit that there'd been no, or
10 negligible relevance to 90 per cent of those materials to
11 the Federal Magistrates' Court process in which they were
12 subpoenaed, or even indeed to these proceedings before
13 Your Honour today.
14HIS HONOUR: It's got nothing – the counterclaim against
15 Mr Hanlon's got nothing to do with whether those
16 documents are relevant in this proceeding. There's a
17 logical hiatus there.
18MR JOHNSON: But there was valuable documents taken - - -
19HIS HONOUR: I'll hear Ms Sofroniou about those two issues, sit
20 down.
22MS SOFRONIOU: As to the issues regarding the caveat,
23 Your Honour, it's not – let me put it this way. It's not
24 the validity of the caveat that's actually the number for
25 the claim.
26HIS HONOUR: No, I understand that.
27MS SOFRONIOU: Whether or not there were grounds for a caveat
28 in the properties of the – with Mr Johnson generally, is
29 a matter that he's pleaded in Paragraph 21 of the
30 counterclaim against Ms Cressy.
31HIS HONOUR: Yes.

2Cressy
1MS SOFRONIOU: That in turn - it's not being said other than
2 that it was fraudulently and maliciously done. As I've
3 heard Mr Johnson's response, what he wants to ask about
4 is in fact the substance of these proceedings. Does she
5 have an adequate interest in the properties to justify
6 the placing of caveats?
7 Why was the caveat placed there? It doesn't
8 actually go to the very matter that is not only the onus
9 on Mr Johnson, but is the only matter in the counterclaim
10 namely fraud and malice.
11HIS HONOUR: I must say I have difficulty understanding the
12 counterclaim, but if you look at the caveat issue pleaded
13 in 22 to 26 - - -
14MS SOFRONIOU: Yes, Your Honour.
15HIS HONOUR: He does allege that it was done fraudulently - - -
16MS SOFRONIOU: That's right - - -
17HIS HONOUR: - - -maliciously that Harwood Andrews lodged their
18 caveats.
19MS SOFRONIOU: Yes. Now, Mr Johnson has put in evidence - - -
20HIS HONOUR: Now, I'm not sure about the cause of action,
21 whether that includes also a claim under s.118 of the
22 Transfer of Land Act. It can't be an abuse of process
23 claim. It doesn't seem to me to have any clarity to it
24 at all. What the basis of the cause of action is?
25 Whether it's an intentional infliction of economic harm,
26 but a sort of conspiracy type cause of action, I don't
27 know - - -
28MS SOFRONIOU: But in any event - - -
29HIS HONOUR: - - -but it doesn't seem to me to fit any of those
30 known causes of action that I've been able to find.
31MS SOFRONIOU: Indeed, Your Honour, but I'm not even raising

2Cressy
1 that sort of demurrer point.
2HIS HONOUR: No, I understand that.
3MS SOFRONIOU: Mr Johnson has put in evidence the Harwood
4 Andrews caveat referred to and he has fairly put in
5 evidence the equitable charge, which is the interest
6 described in the caveat.
7HIS HONOUR: I follow that.
8MS SOFRONIOU: Now, he then has filed a pleading which as I
9 understand it regardless of the taxonomy of it, says that
10 was maliciously and fraudulently done. What I've just
11 heard Mr Johnson say is that Mr Hanlon will be asked what
12 was his understanding - I'm paraphrasing, of the strength
13 of the plaintiff's case to warrant the placing of her
14 caveats on which the Harwood Andrew's caveat rests on
15 top.
16HIS HONOUR: Could it be argued though that if he knew that
17 Ms Cressy just did not at all have a viable claim under a
18 constructive trust, therefore the Harwood Andrews caveat
19 would be without content?
20MS SOFRONIOU: That doesn't follow of course because caveats,
21 any caveat doesn't necessarily rest on a proven interest.
22 You'd need an arguable case effectively.
23HIS HONOUR: This one would because Ms Cressy's not the
24 registered proprietor of the property. Her interest
25 would be at that time as an unregistered interest
26 pursuant to constructive trust.
27MS SOFRONIOU: Indeed, Your Honour.
28HIS HONOUR: And she's seeking really to charge that interest
29 to your client. Now - - -
30MS SOFRONIOU: I think my proposition, Your Honour, is that
31 should that be a mistaken analysis of her interest - - -

2Cressy
1HIS HONOUR: That doesn't matter.
2MS SOFRONIOU: It wouldn't - - -
3HIS HONOUR: That would not establish - - -
4MS SOFRONIOU: It would not - - -
5HIS HONOUR: That could not establish fraud or malice. No, I
6 follow.
7MS SOFRONIOU: That's my point, Your Honour, and so therefore
8 the rationale of the interest doesn't actually go to the
9 claim that Mr Hanlon has to meet as - - -
10HIS HONOUR: I follow that. Well, I understand the parameters
11 of Mr Johnson but if Mr Hanlon were to say that Ms Cressy
12 came into his door and said, "Look, I've never even met
13 Mr Johnson, but I'm going to claim that I've lived with
14 him seven years", or something that would something
15 different.
16MS SOFRONIOU: Yes.
17HIS HONOUR: But there's been never any suggestion of that. It
18 wasn't put to the plaintiff.
19MS SOFRONIOU: That's the problem. These sort of - - -
20HIS HONOUR: It is the problem but what do you say? I mean if
21 he'd subpoenaed Mr Hanlon and Mr Hanlon sought to set
22 aside the subpoena, I think I'd be hard pressed to do
23 that wouldn't I?
24MS SOFRONIOU: Your Honour, could – well, that's why I made the
25 lengthy submissions I just did, Your Honour. What Your
26 Honour would have regard to was the styming of his
27 availability and cross-examination, and the matters that
28 I've just been adumbrating to you.
29HIS HONOUR: I follow that. It's a difficult issue.
30MS SOFRONIOU: Certainly, Your Honour.
31HIS HONOUR: Particularly bearing in mind that one would like

2Cressy
1 to do one's best to ensure that the adjudication of this
2 case wasn't the subject of a subsequent adjudication,
3 four years later, in another place.
4MS SOFRONIOU: Yes, Your Honour, of course.
5HIS HONOUR: One needs to try to do one's best to ensure a
6 finality.
7MS SOFRONIOU: I think it follows from that that the remaining
8 part of the counterclaim - - -
9HIS HONOUR: - - -in which people with the status of the
10 defendant are accorded the utmost – yes.
11MS SOFRONIOU: Yes, Your Honour. So it doesn't raise the theft
12 and burglary issues?
13HIS HONOUR: No, no. He hasn't even adumbrated any questions
14 on that basis, and I know that that - - -
15MS SOFRONIOU: Those are my submissions, Your Honour.
16HIS HONOUR: I noted that. I hear what you say, Ms Sofroniou.
17 Mr Johnson. Thanks, Ms Sofroniou.
19HIS HONOUR: I cannot force Mr Hanlon to go into the witness
20 box on your behalf. Indeed I could not draw an inference
21 against him if he declined to do it. It would seem to me
22 inappropriate in a case such as this to draw any such
23 inference at all, but I am prepared to invite him - - -
24MR JOHNSON: I'm sorry, Your Honour, could I ask - - -
25HIS HONOUR: I am prepared to invite him but on the very strict
26 basis that the only questions you can ask of him are
27 questions-in-chief. That you do not become abusive.
28 That they approach the relevant issues, which with your
29 intellect I'm sure you are well and truly familiar with.
30 It seems to me you're going to whether he had a genuine
31 belief in the validity of the Harwood Andrews caveat.

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1MR JOHNSON: Your Honour, if I may assist my learned friend I'm
2 not wishing to ask any questions in respect of the
3 outcome of Mr Hanlon's analysis of the claims Ms Cressy
4 had - - -
5HIS HONOUR: No. Well, you wouldn't be allowed to.
6MR JOHNSON: I just want to ask, "What investigations did you
7 do? What was your analysis process in respect of
8 Ms Cressy's claims to caveats? What independent checks
9 did you do separate from what your client told you, and
10 likewise in respect to the subpoena documents? What
11 independent process of analysis"? Not the outcome, Your
12 Honour. "Process of analysis did you go through"?
13HIS HONOUR: Even if there's a lack of independent
14 investigation, that's a long way from establishing fraud
15 and malice.
16MR JOHNSON: I would say - I would say - - -
17MS SOFRONIOU: This is a privileged - legally professionally
18 privileged - - -
19HIS HONOUR: There is privilege and there may be an issue that
20 it's really Mr Devries' client's privilege that is at
21 stake in this.
22MR JOHNSON: Your Honour, I would say that fraud requires
23 either actual knowledge or is so reckless that you ought
24 to know. Now, I'm not suggesting that Mr Hanlon had
25 actual knowledge that Ms Cressy's caveat claims were
26 worthless or her - what she put in terms of the
27 proprietary of the taking - - -
28HIS HONOUR: Sorry - - -
29MR JOHNSON: - - - until subpoena. I'm not suggesting that
30 Mr Hanlon had any actual knowledge or climbed into my
31 house in the dark of night. It's an after the event.

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1 I'm not even challenging in the circumstances the fact
2 that Mr Hanlon put those caveats on. What I'm
3 challenging is that at the first reasonable opportunity
4 as a professional, he should not have been an automata of
5 the client, I don't know if it happened, Your Honour. He
6 should have brought an independent frame of mind to the
7 claims, not allowed himself to become an instrument of
8 fraud of mischief or abuse of the Federal Magistrates'
9 Court's process in respect of the subpoenaing of
10 materials and not have allowed himself, if this indeed
11 happened, I don't know, without the answers to these
12 interrogatories, and we had none of that discovery
13 process here. We were just rushed to trial without
14 interrogatory and that may be part of the basis of the
15 paucity of the plaintiff's evidence, Your Honour. I need
16 the answers to those questions in order to frame my - - -
17HIS HONOUR: I understand you saying they're not suggesting?
18MR JOHNSON: Any actual knowledge.
19HIS HONOUR: Of Mr Hanlon of the lack of truth of the claim
20 made by Ms Cressy to have an interest in your property,
21 is that what you're saying?
22MR JOHNSON: What - what I understand, Your Honour, is that
23 a - - -
24HIS HONOUR: I'd like to have a yes or no answer before - - -
25MR JOHNSON: If I may give some details, yes.
26HIS HONOUR: You are saying that Mr Hanlon did not have any
27 knowledge?
28MR JOHNSON: Any actual prior knowledge of the worthlessness of
29 Ms Cressy's claims embodied in her caveat or her claims
30 in regard to an appropriateness of Mr Hannon subpoenaing
31 those materials of mine off the Victoria Police and

2Cressy
1 putting them out of my use and control for months at a
2 very critical time in my deterioratoring or deteriorated
3 legal practice.
4 A number of legal practitioners here in court today
5 have been taken away from their legal practices and their
6 clients who need them. I'm - - -
7HIS HONOUR: It's by your making, Mr Johnson.
8MR JOHNSON: No, I'm a defendant, I've been brought here. I'm
9 not a plaintiff - - -
10HIS HONOUR: No, you are, you're a plaintiff by counterclaim.
11MR JOHNSON: A most reluctant one, Your Honour.
12HIS HONOUR: I see no reluctance in the type of allegations
13 you've made. Don't discredit yourself by making that
14 sort of comment. It seems to me with that concession
15 that the evidence you wish to adduce is irrelevant.
16MR JOHNSON: Not at all. Callanan's type claim - - -
17HIS HONOUR: You say there was no fraud and no - you're putting
18 to me there was no fraud and no malice, what does this go
19 to then?
20MR JOHNSON: I say that there was fraud through knowledge
21 imputed by recklessness. Mr Hanlon should have known a
22 short time after - - -
23MS SOFRONIOU: There's no such - there's no such - - -
24MR JOHNSON: Again, because I needed answers to interrogatories
25 before I could settle my pleadings. I've made no secret
26 of the fact that those pleadings have never been settled.
27 Much events that I've taken since they were drafted up in
28 a matter of minutes - - -
29HIS HONOUR: There's another issue involved in this and this
30 affects Mr Devries. Mr Devries, you'll need to
31 communicate with your client. She has a privilege in any

2Cressy
1 advice that's given to her by Mr Hanlon and any
2 instructions given by her to Mr Hanlon for that advice in
3 relation to both the caveat and in relation to the
4 subpoena.
5 If Mr Hanlon were to give evidence and be asked
6 questions on this, the question I need to know is will
7 your client be objecting on the basis that it involves
8 the disclosure of privileged information?
9MR DEVRIES: It would depend on the particular questions, Your
10 Honour.
11HIS HONOUR: Yes.
12MR DEVRIES: Your Honour, while I'm on my feet, I should have
13 mentioned this to you right at the outset. Just before I
14 left chambers, I was approached by a member of counsel
15 who runs the Victorian Bar Duty Barrister's Scheme and he
16 has said that if need be, somebody could be provided
17 amicus curio or otherwise to assist either the court or
18 Mr Johnson. Probably too late to get them involved for
19 any part of today's proceeding - - -
20HIS HONOUR: That's irrelevant to what the - to the problem
21 I've got at the moment.
22MR DEVRIES: No, no, but before I forget that.
23HIS HONOUR: All right, don't worry about your memory. I'm
24 trying to focus on this issue.
25MR DEVRIES: Sure. It depends on the question that's asked
26 but - - -
27HIS HONOUR: I'll hear from Ms Sofroniou.
28MS SOFRONIOU: Well, of course the answer is that Mr Hanlon
29 won't breach his client's privilege. Whatever happens
30 after that is a matter of waiver or whatever's forced on.
31 As to the - I'm indebted to Mr Johnson's explanation.

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1HIS HONOUR: Yes.
2MS SOFRONIOU: His position, I don't understand any negligence
3 or recklessness pleaded in the matter.
4HIS HONOUR: No.
5MS SOFRONIOU: So I don't really know how you jump from notions
6 of not properly doing your job if I could use that
7 neutral terminology to the particular attitude of mine
8 that malice and fraud require and it's, of course - - -
9HIS HONOUR: It can't be malice, malice is an ulterior motive
10 and he hasn't even pretended to - - -
11MS SOFRONIOU: Yes, and the sort of fraud that say the real
12 property acts of the various states impute constructive
13 fraud is not here what's pleaded in my submission.
14HIS HONOUR: Well - - -
15MS SOFRONIOU: It's not an equitable fraud in other words.
16 It's a - - -
17HIS HONOUR: One takes fraud as an allegation of fraud which
18 one assumes is a state of mind - - -
19MS SOFRONIOU: That's right, Your Honour.
20HIS HONOUR: - - - he intentionally putting a caveat on which
21 he knows has no value?
22MS SOFRONIOU: It sounds, from what Mr Johnson says, that given
23 that he has put into evidence the matrix of
24 circumstances. He, in submission, seeks to make out that
25 that amounts to a certain - that that makes out his case
26 effectively. It doesn't appear to be a matter on which
27 Mr Hanlon's evidence can assist Your Honour in light of
28 what Mr Johnson has said.
29HIS HONOUR: Well, I agree with that. Based on that I will not
30 invite him to or simply won't use my office to do that.
31 Where the matter proceeds from there is for Mr Johnson.

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1MS SOFRONIOU: Please the court.
2HIS HONOUR: Now, where do we proceed from here, Mr Johnson?
3MR JOHNSON: Your Honour, I have a number of submissions but
4 I'll just keep to one. I would submit that on these
5 sorts of issues particularly the privilege point, an
6 advocate or any legal practitioner including of course
7 myself, we have two sets of duties. The duty to the
8 client and the duty as an officer of the court, and every
9 ethics materials I've looked at hundreds of years into
10 the past - - -
11HIS HONOUR: Yes, I notice you're - - -
12MR JOHNSON: - - -the obligation to - - -
13HIS HONOUR: I notice you're holding an ethics book there are
14 you?
16HIS HONOUR: I'm pleased to see that.
17MR JOHNSON: Our obligations as officers of the court to the
18 administration of justice are paramount to obligations to
19 our clients.
20HIS HONOUR: I'm pleased that you understand that.
21MR JOHNSON: Thank you, Your Honour. Where we will go from
22 here is that I will issue a subpoena for those of
23 Ms Cressy's solicitors who have sworn affidavits in
24 support of her proceedings. I did have a - - -
25HIS HONOUR: Mr Johnson, if you issue subpoenas which are an
26 abuse of the process of this court - - -
27MR JOHNSON: Yes, Your Honour, as I - - -
28HIS HONOUR: - - -and I decide as such - - -
29MR JOHNSON: - - -my documents - - -
30HIS HONOUR: Then you'll be liable for the costs on that on an
31 indemnity basis. So that you should bear in mind the

2Cressy
1 helpful remarks I have advanced to you today concerning
2 my view as to the potential relevance, because firstly if
3 they are an abuse of the process I would set them aside
4 and order costs as it usually occurs. Given that you've
5 had advance notice of my preliminary views in relation to
6 the irrelevance of these subpoenas, you would be well and
7 truly on notice that no doubt if an application be made
8 on behalf of those subpoenaed for indemnity costs, if I
9 came to the view that subpoenas were being issued for an
10 ulterior purpose then I'd be obliged to refer these
11 papers to another organisation. I don't say that as a
12 threat but as a fair warning.
13 There are a number of aspects about your conduct in
14 this court as a self professed officer of it that give me
15 grave disquiet, including the wild allegations pleaded in
16 your counterclaim which you have not substantiated which
17 now you've walked away from today. Wild allegations made
18 from the Bar table from the privileged position of the
19 Bar table. Now, I'll say no more because it just simply
20 puts you on fair notice that if you continue this
21 behaviour, particularly if you abuse your right to
22 subpoena witnesses in circumstances where they're clearly
23 irrelevant to the issues in this case, then you put
24 yourself in jeopardy in issues as to costs and quite
25 possibly as to referral of these matters to appropriate
26 authority.
27MR JOHNSON: I'm indebted to Your Honour.
28HIS HONOUR: Just bear that steadily in mind.
29MR JOHNSON: I'm indebted to Your Honour for the quality of
30 those warnings. Your Honour, may I say - - -
31HIS HONOUR: In an endeavour to assist you to stay out of

2Cressy
1 trouble, Mr Johnson, because you've enough talent that if
2 you apply it productively I'm sure you could well in your
3 chosen career. Now, Mr Johnson, what do you wish to do
4 now?
5MR JOHNSON: I wish to make two quick points, Your Honour. The
6 first is that I hold myself highly accountable to the
7 highest standards of the profession. As a true
8 professional I do not discourage. I invite criticism
9 which may either be vindicated if I've done wrong, or I
10 may be cleared of and – and elevate my regard within the
11 profession. And I make the same in respect of – not only
12 in – as an officer of the court but also in the tax
13 jurisdiction. For example my frankness - of my answers
14 to my cross-examination on my income tax returns.
15 Secondly I wish to emphasise that the problem with some
16 of my pleadings is – and Your Honour caught it in a
17 nutshell; the conspiracy type aspect. I needed answers
18 to interrogatories out of a discovery process which never
19 happened because of the way the plaintiff ran the case,
20 in order to settle my pleadings. Also - - -
21HIS HONOUR: That's a very damaging admission by you. If you
22 made allegations in pleadings of which you had no
23 evidence to support them, you as an officer of this court
24 know you had no right to do that.
25MR JOHNSON: I did not say no evidence. I said that I needed
26 answers in order to settle my pleadings, Your Honour.
27 Also - - -
28HIS HONOUR: Mr Johnson, you haven't answered my question.
29 What are you going to do now in relation to your defence
30 and your defence in counterclaim?
31MR JOHNSON: I wish the - - -

2Cressy
1HIS HONOUR: Are you going to closeout your case or what are
2 going to do?
3MR JOHNSON: I wish to make one more submission, again
4 emphasising the fact that it's only information that's
5 come to hand to me - - -
6HIS HONOUR: If you're not closing your case today you'll need
7 to make a sensible application for an adjournment,
8 because I will proceed to require to close your case and
9 I'll hear Ms Sofroniou - - -
10MR JOHNSON: I will do that presently, Your Honour. I just
11 want to point out that on the malice point, before I
12 request the closure I say that I can subpoena those –
13 it's four witnesses I intend to subpoena. Probably only
14 four given the quality of Your Honour's warnings to me.
15 I just want to point out that it has come to my attention
16 through affidavits I've received in these and the
17 proceedings in the other jurisdictions, from a
18 Mr Colin Twigg and Mr James Turnbull, that Ms Cressy has
19 been entirely funded by her lawyers in hundreds and
20 thousands of dollars of legal claims against me.
21 And further that any adjustment Your Honour would
22 make to my assets would – in these proceedings would
23 result in basically the commercial effect that I'd be
24 left with zero. Ms Cressy would be left with zero and
25 those litigation funders would not even make a full
26 recovery. Now, that is the ulterior motive which of
27 course I had no evidence of. That would be the malice,
28 Your Honour. I had no evidence of that until in – just
29 in the last few weeks, Your Honour. Now, I would ask
30 Your Honour to contemplate that and also I wish - - -
31HIS HONOUR: I'm not contemplating anything. That allegation

2Cressy
1 is again both wild and it's also it seems to me to be
2 irrelevant.
3MR DEVRIES: It's also untrue, Your Honour.
4HIS HONOUR: Yes, well, thank you for that, Mr Devries.
5MR JOHNSON: That is the aspect that I would have liked to
6 cross-examined Mr Twigg and Mr Hanlon - - -
7HIS HONOUR: Without wasting any further time, and I notice the
8 time is ten to 11, we'll achieve nothing today thanks to
9 your filibustering. What do you wish to do now?
10MR JOHNSON: I wish for the matter to be – I'm not sure of the
11 correct terminology but put forward until a specific date
12 at Your Honour's convenience so that I can issue those
13 four subpoenas against those four witnesses.
14HIS HONOUR: Who will you be subpoenaing?
15MR JOHNSON: Absolutely subpoenaing Leanne Kelly, Elisabeth
16 Erasmus.
17HIS HONOUR: Just a minute, yes.
18MR JOHNSON: David William Hanlon.
19MS SOFRONIOU: I object to that.
20MR JOHNSON: Which be done promptly to allow my learned friend,
21 Ms Sofroniou, to object to that.
22HIS HONOUR: There may be an application to set that side if I
23 do.
24MR JOHNSON: Yes, Your Honour - - -
25HIS HONOUR: - - - the consequences.
26MR JOHNSON: I'm an indebted to you.
27HIS HONOUR: You are.
28MR JOHNSON: Extremely indebted, and also Police Officer
29 Jennifer Locke - - -
30HIS HONOUR: What's she got to do with it?
31MR JOHNSON: - - -police station. She can give evidence from

2Cressy
1 having spoken with Ms Cressy and Mr Cockram I submit, as
2 to the nature of their relationship over a substantial
3 period - - -
4HIS HONOUR: - - -what Mr Cockram did or did not say to a
5 Police Officer Locke is hearsay, inadmissible. If
6 Ms Cressy made any admissions I suppose that might have
7 some relevance that a domestic existed; a domestic
8 relationship, and bring a busy police officer to this
9 court and don't adduce useful evidence from her that
10 would be an issue that no doubt the police would take up
11 with you on issues of costs.
12MR JOHNSON: I am extremely mindful of that Your Honour.
13MS SOFRONIOU: Also, Your Honour, subpoenas for parties to
14 bring them to court. Mr Hanlon is in court. There is no
15 function whatsoever served by the document, he is a
16 party, he is present in court.
17HIS HONOUR: I haven't invited him to give evidence but that
18 doesn't mean Mr Johnson can't now ask him to give
19 evidence and then it's a matter for you and Mr Hanlon.
20MS SOFRONIOU: Indeed, all I am saying is I can spare him the
21 issue of the paperwork.
22HIS HONOUR: All right. If that is so he can call Mr Hanlon
23 now if he wants to.
24MR JOHNSON: I am not in a position, Your Honour, I am not
25 prepared or with the materials required to question
26 Mr Hanlon.
27MS SOFRONIOU: Also in light of what Your Honour has said, I
28 understood I take Your Honour to take the view that in
29 calling him it would be irrelevant in light of the
30 concessions made.
31HIS HONOUR: I would have to wait for the question.

2Cressy
1MS SOFRONIOU: Yes, indeed.
2HIS HONOUR: I can't really rule in advance, I don't have the
3 capacity to do that.
4MR JOHNSON: Your Honour, I require - - -
5HIS HONOUR: I regard that as extraordinary after you have
6 outlined to me what you want to ask Mr Hanlon, after
7 discussing it you must have given very careful thought to
8 why you require a solicitor who is the respondent to very
9 grave allegations made by you against him to give
10 evidence, you now don't know what you want to ask him.
11MR JOHNSON: Your Honour, I acknowledge - - -
12HIS HONOUR: I regard that as outrageous, frankly.
13MR JOHNSON: Your Honour, I acknowledge what my learned friends
14 have said that I need to be wary and the appropriateness
15 of my questions with depend upon - - -
16HIS HONOUR: What I will do is - - -
17MR JOHNSON: I would like to take time. I don't want to cause
18 a - - -
19HIS HONOUR: How much time do you need to consider the
20 questions you are going to ask Mr Hanlon?
21MR JOHNSON: I need to make sure that I have the materials with
22 me.
23HIS HONOUR: How long do you wish - - -
24MR JOHNSON: I would like to write the questions down and
25 provide them to Ms Sofroniou in advance and to Mr Devries
26 to make sure that I am not causing any undue anxiety for
27 Mr Hanlon, any tension between his duties to the client
28 and duties to the court.
29HIS HONOUR: You can think through the questions you wish to
30 ask him, then you can call him to give evidence or get
31 this over with.

2Cressy
1MR JOHNSON: I have also - - -
2HIS HONOUR: We have lost enough time today.
3MR JOHNSON: I also wish to view - - -
4HIS HONOUR: This is my court. If you like I will stand the
5 matter down and give you sufficient time to think
6 carefully through the questions you are going to ask him.
7MR JOHNSON: I need (indistinct) transcript.
8HIS HONOUR: If Mr Hanlon is good enough to go into the witness
9 box and you ask him to do so and in that he must
10 understand that I do not make any requirement of you to
11 do that at all, and I would not draw any adverse
12 inference against him if he were to decline to do so.
13 But if he was good enough to do that, then it would seem
14 to me, having foreshadowed that, having made wild
15 allegations against him, the least you could do is call
16 him now. You must know what issues you wish to approach
17 with him.
18MS SOFRONIOU: He may indeed decline, Your Honour, I have not
19 asked him.
20HIS HONOUR: I understand that.
21MS SOFRONIOU: Thank you, Your Honour.
22MR JOHNSON: Your Honour, the questions need to be put
23 delicately for the reasons that I've said. I would like
24 an opportunity to discuss them, forgive me, Your Honour,
25 with Ms Sofroniou, perhaps we can have a discussion that
26 might obviate the need whatsoever - - -
27HIS HONOUR: I doubt Ms Sofroniou will wish to discuss the
28 matters with you.
29MS SOFRONIOU: No.
30HIS HONOUR: No, she does not, you can sit down and think them
31 through and I will return to court in - I will give you

2Cressy
1 half an hour which is more than generous. If you wish to
2 call Mr Hanlon you will then call him. If you decline to
3 call him then, and in the meantime if we adjourn the
4 case, and then subpoena him I will bear that in mind.
5 (Indistinct) the subpoena Mr Johnson.
6MR JOHNSON: I understand that Your Honour and it may - - -
7HIS HONOUR: It is now - by the court clock it is four minutes
8 to 11, I will adjourn until 11.30 and that will give you
9 an opportunity to gather your thoughts carefully and then
10 we will see where we go from there, all right.
12HIS HONOUR: I am not going to waste the whole of today,
13 Mr Johnson (indistinct).
15HIS HONOUR: I will be back exactly by the court clock at
16 11.30.
18 (Short adjournment.)
19HIS HONOUR: Mr Johnson.
20MR JOHNSON: Thank you, Your Honour. Your Honour, I note that
21 Mr Hanlon is in court today and he has been in court
22 every day of the trial.
23HIS HONOUR: Yes, he has.
24MR JOHNSON: One would expect him in court when we resume in
25 the New Year as well. When we resume in the New Year I
26 am optimistic or positive at least that I will be
27 represented by senior junior and/or senior senior
28 counsel. I will have given up my instructing solicitor
29 had to someone, perhaps the President of my Law
30 Institute, who is informed of all of these proceedings
31 and has given me valuable support in that capacity in

2Cressy
1 respect to these proceedings to date. Now, my anxiety to
2 get justice and judgment pre-Christmas if possible, I
3 made that very clear on the first day of the trial and
4 even more clear yesterday when I suggested maybe
5 even - - -
6HIS HONOUR: Actions speak louder than words, Mr Johnson.
7MR JOHNSON: Absolutely, Your Honour, I have truncated
8 my - - -
9HIS HONOUR: You have shown no desire to have this case
10 concluded before Christmas, you have wasted the court's
11 time including two hours today. Now proceed and tell me
12 what you have.
13MR JOHNSON: Given all of that and my anxiety to - willingness
14 to clip witnesses and case, we have lost that opportunity
15 for justice and judgment pre-Christmas. Given my
16 expectations of being a client fully represented when we
17 resume in February, if I were to ask Mr Hanlon now to
18 enter the witness box I think I would further
19 unnecessarily clip my case. I submit that it would be
20 better for Mr Hanlon to give evidence with or without
21 subpoena, I am ask him earlier in the New Year, along
22 with the other witnesses that will be called and Your
23 Honour, as will I, will have the benefit of hearing from
24 eminently qualified defence counsel at that time.
25HIS HONOUR: Tell me this, you have just foreshadowed you are
26 going to have two silks and a junior to defend you.
27MR JOHNSON: No, no.
28HIS HONOUR: You have protested throughout this case you
29 haven't got the financial means to have even a solicitor
30 here for you.
31MR JOHNSON: I personally don't, Your Honour, but given recent

2Cressy
1 articles in the newspapers which I have circulated to my
2 learned friend and discussions, I am confident that I may
3 be able to tap into perhaps the pro bono barristers
4 scheme. I have had discussions with barristers and/or
5 Legal Aid funding for these and the second proceedings.
6 We also have an opportunity over the summer - - -
7HIS HONOUR: So what is your application? Are you calling
8 Mr Hanlon today? Are you requesting him today to go into
9 the witness box to give evidence on your behalf?
10MR JOHNSON: I am not going to do that, Your Honour, I am going
11 to request that the matter be put forward - - -
12HIS HONOUR: Just a moment, I am making a note of that. So you
13 decline the opportunity to request Mr Hanlon to give
14 evidence.
15MR JOHNSON: The opportunity will present itself naturally, I
16 may not need to issue a subpoena in February. We have
17 some time for discussions between the parties - - -
18HIS HONOUR: You have had the opportunity today to at least ask
19 Mr Hanlon to go into the witness box, you have not taken
20 that opportunity, I have made a note of that. That will
21 no doubt be a relevant circumstance should you see fit to
22 seek to subpoena Mr Hanlon next year.
23MR JOHNSON: I appreciate that, Your Honour.
24HIS HONOUR: Still, notwithstanding your best efforts to burn
25 up the day with achieving nothing, we still have another
26 three hours to go, three and a half hours. I am sure if
27 you had called Mr Hanlon, Mr Hanlon did go into the
28 witness box you could complete his evidence.
29MR JOHNSON: I would prefer - - -
30HIS HONOUR: You must know what you wish to adduce from him.
31 You would not have delivered this counter-claim without

2Cressy
1 having some idea of what you were doing.
2MR JOHNSON: I would prefer Mr Hanlon's evidence if he even
3 needs to be called. We may have discussions between
4 parties that may obviate or reduce the duration of any
5 proceedings - - -
6HIS HONOUR: I doubt it, nothing seems to have occurred in that
7 regard so far. You're running out of excuses,
8 Mr Johnson, for me to other than draw a conclusion you
9 are deliberately wasting today and that will be reflected
10 in order for costs. Today is wasted because of this.
11MR JOHNSON: I will be asking also if - - -
12HIS HONOUR: We achieved nothing today due to your obfuscation
13 obviously, the other side can't be required to bear the
14 costs of that. Now, bear that in mind while you continue
15 to waste the time, busy time, much needed time of this
16 court.
17MR JOHNSON: I will be - - -
18HIS HONOUR: There are people in greater need for justice than
19 you, and you have eaten up the time of a judge,
20 barristers and particularly of this court and the
21 resources of this court with this chronic constant serial
22 time wasting and it is quite unconscionable.
23MR JOHNSON: With respect, Your Honour, I am conscious - - -
24HIS HONOUR: Now, proceed with your defence. Are you going to
25 call any more witnesses today?
26MR JOHNSON: Not today, Your Honour.
27HIS HONOUR: Are you closing your case today?
28MR JOHNSON: No, Your Honour, I wish to call the - - -
29HIS HONOUR: So you are not in a position to proceed with your
30 defence today?
31MR JOHNSON: No, Your Honour. I would submit that there is no

2Cressy
1 need - - -
2HIS HONOUR: I will hear from the other side.
3MS SOFRONIOU: We are in the courts hands, Your Honour, we
4 request costs of today.
5HIS HONOUR: I could require him to close, if he was
6 represented I could require him to close. 10 years ago I
7 could have required him to close - - -
8MS SOFRONIOU: Sorry, Your Honour may have misheard me, I said
9 absolutely that's right, all we seek is the costs of
10 today.
11HIS HONOUR: The regrettable matter is the whole of today has
12 been wasted. Certainly I will order that costs be paid
13 on - and no doubt you seek the same costs Mr Devries?
14MR DEVRIES: I do and I also seek the payment of them as a pre-
15 condition of this matter proceeding on the adjourned
16 date, Your Honour.
17HIS HONOUR: I am tempted to make that order but I won't. What
18 basis do you seek them?
19MR DEVRIES: Sorry, seek that part of the order or seek costs?
20HIS HONOUR: No, what - - -
21MS SOFRONIOU: We seek them on an indemnity basis, Your Honour,
22 that's the only way that it can make up the - - -
23HIS HONOUR: I agree with that.
24MR DEVRIES: I apply Your Honour.
25HIS HONOUR: Yes, I will accede to that application.
26MS SOFRONIOU: Excuse my not knowing this, Your Honour, do we
27 require an order that they be payable forthwith or would
28 that be in the normal course?
29HIS HONOUR: I would not stay them but I would not make it a
30 precondition of anything, I could not do that. I could
31 do it but it would have unfortunate repercussions.

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1MS SOFRONIOU: On that basis that means that the costs are only
2 assessed at the end of the trial. I am not talking about
3 making costs payable as a precondition to the matter
4 proceeding. I am wondering if they can be taxed now or
5 whether they - - -
6HIS HONOUR: I think the Taxing Master would allow that,
7 wouldn’t they, that's probably more a matter for the
8 Taxing Master.
9MS SOFRONIOU: In some places one has to make that as an
10 explicit order, I'm sorry if it is unnecessary Your
11 Honour.
12MR DEVRIES: I'd be asking Your Honour to fix the costs of
13 today of certainly the plaintiff and the - - -
14HIS HONOUR: If you're in a position to advise me, not as a
15 guesstimate but give me the details of those costs, I'd
16 be amenable to do - I'd better not. I don't think I'll
17 do that, Mr Devries. Mr Johnson, I see no basis upon
18 which you can resist an order for indemnity costs based
19 on the fact that today is now, on my calculation, the
20 sixth day on which you've been presenting your defence.
21 You've called five witnesses and yourself. You've
22 had plenty of time to organise your witnesses. As I have
23 repeatedly stated, you have shown much more familiarity
24 with the court processes and with the technique of
25 calling witnesses than you claim to have. You knew that
26 the case you would be required to call evidence today.
27 Indeed, last night you'd foreshadowed closing your case
28 today if Mr Cockram did not turn up.
29 You have obviously changed your mind and I strongly
30 suspect it's for tactical purposes to forestall the
31 application being made on behalf of the second and third

2Cressy
1 defence of counterclaim. You have totally wasted this
2 court's time. That regrettably cannot be a matter of
3 recovery.
4MR DEVRIES: The - - -
5HIS HONOUR: I am still speaking.
6MR DEVRIES: Sorry, Your Honour.
7HIS HONOUR: But you have caused the parties, through no fault
8 of their own, to incur considerable costs. Your conduct
9 is such that you are fortunate that I'm only making an
10 order for costs on indemnity basis. And that's what I
11 propose to do. Mr Devries, what did you want?
12MR DEVRIES: I apologise for interrupting, I thought you were
13 looking to me, that's why I - - -
14HIS HONOUR: No, I was just waiting for some peace and quiet.
15 It's unusual for people to talk across a judge while he's
16 delivering a ruling. Everything's happened in this case
17 so - - -
18MR DEVRIES: My instructor and I both apologise for that, Your
19 Honour. My instructor was reminding me of something. My
20 costs of today, my brief is two thousand - - -
21HIS HONOUR: No, I think it's better though if you're taxed.
22MR DEVRIES: If Your Honour pleases. The other matter, Your
23 Honour, that I raise to - I'd better wait until Your
24 Honour determines what is to happen with this matter now.
25 I make the application in respect to one property.
26HIS HONOUR: I intend to adjourn the matter to 9 February,
27 adjourn part heard. I order that the defendant,
28 Mr Harold James Johnson, pay the costs of the plaintiff
29 on a solicitor/own client basis of today. I'll order
30 that the defendant, Harold James Johnson, pay the costs
31 of the two defendants to the counterclaim - - -

2Cressy
1MS SOFRONIOU: The second and third if the court pleases.
2HIS HONOUR: I'm sorry, the costs of the second defendant to
3 the counterclaim, Mr David Hanlon and the third defendant
4 to the counterclaim, Harwood Andrews Pty Ltd on a
5 solicitor/own client basis, the cost of today of
6 Mr Hanlon and Harwood Andrews. Are there any other
7 directions which I need to give in relation to the
8 hearing next year?
9MS SOFRONIOU: I'm aware of Your Honour's policy and want to
10 comply with it. Therefore, would Your Honour require me
11 to make alternative arrangements for 13 February in which
12 case I should do that now? I don't want to put Your
13 Honour in a difficult position but I - - -
14HIS HONOUR: No. I don't want to be in this position but - - -
15MS SOFRONIOU: Well, would - - -
16HIS HONOUR: Yes.
17MS SOFRONIOU: Would Your Honour be willing not to sit on that
18 Friday or if that is an unfair request of the court then
19 I - - -
20HIS HONOUR: No, I will do that, Ms Sofroniou. I think you and
21 your side have suffered enough. Required to sit through
22 this.
23MS SOFRONIOU: I'm grateful to the court and to Your Honour.
24MR DEVRIES: As to directions, Your Honour, would Your Honour
25 consider making an order or a direction setting a date by
26 which any further subpoenas are to be taken out and
27 served?
28HIS HONOUR: Yes, I could do that. What do you say? What do
29 you suggest?
30MR DEVRIES: That a date towards the middle of January, Your
31 Honour.

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1MS SOFRONIOU: No, earlier if we could please, Your Honour.
2HIS HONOUR: I think realistically that any subpoenas - I'll
3 direct that any further subpoenas be issued on behalf of
4 the defendant be issued and served - - -
5MR JOHNSON: May I speak on this, Your Honour?
6HIS HONOUR: Yes?
7MR JOHNSON: There is the Christmas interval and people are
8 hard to catch and there is a natural expiry date on the
9 subpoena process anyway.
10HIS HONOUR: Yes.
11MR JOHNSON: I'm happy to, rather than - not even waiting until
12 they've been formally served, I'm happy to let my learned
13 friends know and provide them with copies of subpoenas
14 when I file them with the court, Your Honour.
15HIS HONOUR: He's got a subpoena in five days beforehand but I
16 will direct that the defendant give notice in writing to
17 the solicitors for the plaintiff and solicitors for the
18 second and third defendants on the counterclaim of the
19 names of any further witnesses who the defendant intends
20 to call in this proceeding no later than 23 January - - -
21MS SOFRONIOU: Your Honour, is there any reason why they can't
22 be done - it's not Christmas tomorrow - by the end of
23 next week, 19 December if that please the court.
24MR JOHNSON: Your Honour - - -
25MS SOFRONIOU: Because then we'll be away but we'll know what
26 preparation we have to come back to. It's not much point
27 finding out for the first time after all of the
28 time - - -
29HIS HONOUR: Can you do that, Mr Johnson?
30MR JOHNSON: I would prefer that not to be in the orders but I
31 would do that as a courtesy, Your Honour. I'm happy to

2Cressy
1 issue - - -
2HIS HONOUR: I'm sure you will. I'll make it 15 January.
3MS SOFRONIOU: And I'm grateful to Mr Johnson, that would be
4 helpful.
6HIS HONOUR: Mr Johnson, you'll have to be very careful in your
7 consideration as to who you subpoena.
8MS SOFRONIOU: Your Honour, if I may that 15th - - -
9MR JOHNSON: Indeed, Your Honour.
10HIS HONOUR: Bearing in mind, careful were the remarks I
11 addressed to you before.
12MS SOFRONIOU: I beg Your Honour's pardon.
13HIS HONOUR: That's all right.
14MS SOFRONIOU: 15 January is the date of formal notification.
15 Is there a due date for them actually to be filed and
16 served in Your Honour's direction? Is that the same
17 date?
18HIS HONOUR: No there isn't – they have to be filed and served
19 five days before the hearing under the rules, do they
20 not?
21MS SOFRONIOU: Yes, subject to Your Honour's direction earlier
22 I would have thought, or such earlier time as Your Honour
23 minds doing it.
24MR JOHNSON: Your Honour, it's a notification point, and I
25 envisage as a courtesy, but not in the orders, informing
26 my learned friends well before 15 January.
27HIS HONOUR: I want to make sure that all the witnesses don't
28 come here late.
29MS SOFRONIOU: It's not that. Yes - no I'm grateful to
30 Mr Johnson's efforts. What I'm saying is we don't want
31 to come back and find that - - -

2Cressy
1HIS HONOUR: What's the rule?
2MS SOFRONIOU: They've not been served or filed.
3MR JOHNSON: It's Order 42 I believe, Your Honour.
4MS SOFRONIOU: I understood they can't be required to be
5 present if they're given less than that notice.
6HIS HONOUR: Less than five days notice.
7MS SOFRONIOU: But Your Honour can make a direction - - -
8HIS HONOUR: Five days is sufficient, is it not?
9MS SOFRONIOU: It's really - - -
10MR JOHNSON: My learned friend will be notified - - -
11MS SOFRONIOU: - - -the courts.
12HIS HONOUR: Just a moment.
13MS SOFRONIOU: It's the court's convenience I'm thinking of.
14 But if on, with those five days we come back on the 9th
15 to find that something's gone wrong with the service,
16 they're unaware, they're unavailable, it's more that that
17 I'm trying to have regard to. If the subpoenas have gone
18 out.
19HIS HONOUR: What direction should I give then?
20MS SOFRONIOU: That subpoenas be filed and served on or
21 before - - -
22HIS HONOUR: What's the last dates on which you can do that?
23MR JOHNSON: Your Honour, we've already had problems with
24 Mr Wittekind, and I doubt that lightening will strike
25 twice. I would just ask that the, that the normal orders
26 follow, and as a courtesy I'll inform my learned friends
27 but - - -
28HIS HONOUR: Or directive issue - - -
29MR JOHNSON: - - -and on the surface - - -
30HIS HONOUR: I'll direct that any subpoena to be issued by the
31 defendant to any further witnesses be issued and served

2Cressy
1 no later than 31 January.
3HIS HONOUR: You'll need to issue them before then, because the
4 terms of that order, issued and served. Do you follow
5 that?
6MR JOHNSON: I'm grateful for that, Your Honour, thank you.
7HIS HONOUR: Are there any other trial directions I can give?
8 Probably not.
9MR DEVRIES: The only other order I'm seeking Your Honour, is
10 with respect to 10 Hawkhurst Court, Hoppers Crossing.
11 That's not a trial direction, but is it convenient to
12 raise it with Your Honour now?
13HIS HONOUR: Yes.
14MR DEVRIES: Your Honour, I'm instructed that all of the other
15 properties that are the subject of these proceedings are
16 either in the hands of mortgagees, about to go in the
17 hands of mortgagees, or subject to – in the process of
18 being subject to sale. The only properties that are
19 excepted from that are the Breezy Street, Brunswick
20 properties which probably nothing needs to be done, and
21 10 Hawkhurst Court, Hawkhurst Street, Your Honour.
22HIS HONOUR: What's the nature of your application?
23MR DEVRIES: The property forthwith sold out of court,
24 Your Honour, and the proceeds – effective of the proceeds
25 after payment of the costs of sale and the mortgage.
26HIS HONOUR: What's the basis of that application?
27MR DEVRIES: To protect the property, Your Honour, and to
28 protect the proceeds, and also – that is the application,
29 effectively that's the application that - - -
30HIS HONOUR: What's the material on which I can make such a
31 peremptory order without having decided this case?

2Cressy
1MR DEVRIES: It's only the nature of the evidence that
2 Your Honour's had before you.
3HIS HONOUR: I have little evidence. That's the – it's really
4 been not a problem that the property was purchased,
5 settlement has taken place, on my recollection it means
6 that (indistinct).
7MR DEVRIES: Your Honour, can I just - - -
8HIS HONOUR: My recollection is that in fact the debt reduced
9 on that.
10MR DEVRIES: Your Honour, perhaps there's another - - -
11HIS HONOUR: Is there any evidence that that is at the moment a
12 property that's in danger, admissible evidence?
13MR DEVRIES: Your Honour, perhaps I can do it this way with
14 respect. There is a summons that's been referred to
15 Your Honour, that covers 10 Hawkhurst Court.
16HIS HONOUR: Yes.
17MR DEVRIES: Issued – that was a summons.
18HIS HONOUR: Mr Johnson. That type of exclamation does not
19 assist, as it doesn't affect me other than irritate.
20MR DEVRIES: Dated 19 August 2008, Your Honour.
21HIS HONOUR: 19 August?
22MR DEVRIES: Yes, Your Honour.
23HIS HONOUR: It's the summons to - - -
24MR DEVRIES: It may be – it's also I'm told in the court book
25 at p.46.
26HIS HONOUR: That might be easier to find. Was that you
27 summons seeking orders that the defendant give to the
28 mortgagee possession?
29MR DEVRIES: Yes.
30HIS HONOUR: That the mortgagee sale - sellage. The mortgagee
31 isn't here. I can't really join them in an order.

2Cressy
1MR DEVRIES: My instructions are to consent to all the orders
2 sought in respect to 10 Hawkhurst Court, Hoppers
3 Crossing. If Your Honour has - - -
4HIS HONOUR: Where's the AMP, they're not in - - -
5MR DEVRIES: I have a difficulty with the absence of the AMP.
6HIS HONOUR: It's not a difficulty, but they might not want to
7 take possession.
8MR DEVRIES: I was going to come to that.
9HIS HONOUR: Or does the possession have duties? They
10 mightened want to take them on in this case.
11MR DEVRIES: I kind of see that. I was going to say - sorry I
12 keep getting distracted from my right Your Honour.
13HIS HONOUR: Yes.
14MR DEVRIES: That can be covered in my respectful submission by
15 an additional order that the AMP have a liberty to apply
16 in respect to the making of those orders. Or the other
17 way is that Your Honour could change AMP Bank effectors
18 be requested, but my client consents to the orders in
19 respect to - that are sought in respect to 10 Hawkhurst
20 Court, Hoppers Crossing.
21HIS HONOUR: At the moment the status of your client is the
22 person who is simply making a claim for an (indistinct)
23 interest, or alternatively for an adjustment of the legal
24 rights. I would have power to make orders to protect the
25 status quo in that respect, (indistinct). I have power
26 to protect the status quo in that respect. I doubt that
27 that power, particularly in this stage of the trial,
28 would enable me to direct a mortgagee to take possession
29 and if the mortgagee was here today, had been brought
30 here today, they might support such an application.
31 You'll be heard in a moment.

2Cressy
1MR JOHNSON: Thank you Your Honour. I'm indebted Your Honour.
2HIS HONOUR: That's all right Mr Johnston. You don't have to
3 jump up and down. Otherwise you're asking me - if you
4 want some variant on that, it would have to be a
5 direction to the defendant to sell the property, which
6 would seem to me to invite difficulty.
7MR DEVRIES: The alternative Your Honour - - -
8HIS HONOUR: At this time of the year I'd be very doubtful that
9 with the proper auction period today is 12 December if
10 I've got it right. You couldn't sell before Christmas.
11 You wouldn't want to sell it in January. The earliest it
12 could be sold I would have thought responsibly would be
13 the end of February.
14MR DEVRIES: The only alternative that would protect my
15 client's interest Your Honour would be that an order
16 along the lines that should the mortgagee take possession
17 and sell the property that the net proceeds of sale be
18 paid into court.
19HIS HONOUR: Yes. I'd be prepared to make that order
20 obviously. I think that's probably the order that Mr -
21 yes that's the order that Mr Johnson came here to ask
22 for.
23MR DEVRIES: And a further order of injection preventing
24 Mr Johnson from dealing with or further encumbering that
25 property.
26HIS HONOUR: Yes, I'd be prepared to protect whatever remaining
27 equity in the property there is. In the meantime I'll
28 hear from Mr Johnson, but it seems to me those are two
29 orders which ought to be made.
31MR JOHNSON: Thank you Your Honour. I object to the need for

2Cressy
1 any orders because the status quo's already protected.
2 What my learned friend - - -
3HIS HONOUR: How is the status quo protected?
4MR JOHNSON: May I explain Your Honour? My learned friend's
5 asking for judgment without the trial concluding just
6 like in the practice trials before the Practice Court.
7HIS HONOUR: Well he won't get that, but what he's, and I've
8 already indicated - - -
9MR JOHNSON: Yes.
10HIS HONOUR: - - - that I will not force a sale, what
11 Mr Johnson I think having rejected Mr Devries's
12 application without needing to call on you, his
13 alternative application is for an order that if the
14 property is sold before the case comes back on for trial,
15 that the net proceeds of any such sale be paid into court
16 or the court - - -
17MR JOHNSON: I - - -
18HIS HONOUR: - - - that you would be amenable to that
19 (indistinct).
20MR JOHNSON: I submit totally unnecessary Your Honour.
21HIS HONOUR: Yes.
22MR JOHNSON: My summons I said right from the very start of the
23 trial, not required. I would not have taken that out if
24 the plaintiff's solicitors - or by the court, I'd
25 received information that this had been set down for
26 hearing on 2 December anyway. I totally withdraw any -
27 any desire for any orders under that summons. I've said
28 that consistently from the start of the trial.
29HIS HONOUR: All right. Having done that - - -
30MR JOHNSON: The status quo is protected - - -
31HIS HONOUR: - - - having done that do you say you oppose any

2Cressy
1 order that if the property is sold in the meantime the
2 proceeds be paid into court?
3MR JOHNSON: The status quo's protected Your Honour.
4HIS HONOUR: Why do you oppose that order?
5MR JOHNSON: Pardon?
6HIS HONOUR: What would be wrong with that order?
7MR JOHNSON: The status - because if at the conclusion of the
8 trial the plaintiff doesn't make out her claim, I get
9 order for - I get judgment and costs in my favour, and
10 that's a vexed issue. I would have suffered harm in the
11 interim, in the interlocutory process, as I have in the
12 Practice Court trials before Mr Justices Cavanough and
13 Hansen, and the plaintiff is a lady without means, which
14 is undisputed by the parties to meet any orders for
15 compensation. Now Mr Devries it seems to have slipped
16 his mind I guess Your Honour that there's no risk of in
17 his parlance Mr Johnson running away with the cash
18 because the property is protected by the plaintiff's
19 original caveat.
20 Also I understand that Mr Devries's instructors also
21 have an equitable charge or whatever they call the thing
22 and a caveat on the total as well. There's simply no
23 need to disturb the status quo.
24HIS HONOUR: Yes, well the latter point I'll raise with
25 Mr Devries. Mr Devries, aren't you protected by the
26 caveat? The property can't be sold with the caveat on
27 it.
28MR DEVRIES: It can't be sold Your Honour, but if there is no
29 requirement for the money to be paid into court, and my
30 client doesn't release the caveat because the proceeds
31 aren't going to be paid into court, then she runs the

2Cressy
1 risk of first of all being put in the choice position of
2 the money - the net proceeds being paid to Mr Johnson and
3 Your Honour could understand that she doesn't trust
4 Mr Johnson or being liable for damages for frustrating
5 the sale. That's the difficulty that the - the caveat
6 protects her, but doesn't - - -
7HIS HONOUR: I don't think that that rationale would justify me
8 making - there is an alternative rationale and that is
9 that if in the meantime the commercial necessities are
10 that the property should be sold, it would seem to me to
11 be desirable that the property be sold and the proceeds
12 paid into court, and that would require your client to
13 lift the caveat. On that basis I would be disposed to
14 make that order.
15MR DEVRIES: If Your Honour pleases.
16MR JOHNSON: Your Honour, may I be heard? That would happen in
17 the ordinary course without an order, and is exactly what
18 happened almost a year ago with the Lisa Court property,
19 Your Honour.
20HIS HONOUR: Yes, thanks.
21MR JOHNSON: Thank you, Your Honour. I oppose that - - -
22HIS HONOUR: What's the next page of that order? What's - - -
23MR DEVRIES: "That in the event that the property situator
24 known as 10 Hawkhurst Court, Hoppers Crossing in the
25 State of Victoria be sold". Sorry, it should be I
26 presume, "Until further order. The proceeds of the sale
27 of that property after payment of the reasonable costs of
28 sale, and the moneys secured by the mortgage thereupon be
29 paid into court".
30HIS HONOUR: So, "The proceeds after payment of the reasonable
31 costs of sale" - - -

2Cressy
1MR DEVRIES: And, "The moneys owing to the mortgagee".
2HIS HONOUR: Yes, yes, that's your view is it, that you
3 request?
4MR DEVRIES: If it's necessary that there be a further order
5 requiring my client to provide a withdrawal of caveat in
6 registrable form". If that gives anyone any comfort you
7 should consent to that as well. That's - - -
8HIS HONOUR: It could become problematic if the house is sold
9 for $15.
10MR DEVRIES: Yes, Your Honour. Perhaps I - - -
11HIS HONOUR: I will until the hearing and determination of this
12 case - - -
13MR JOHNSON: May I be heard, Your Honour? I believe the two
14 need to go together because I submit that it's
15 unnecessary for Your Honour to make that order, but
16 making that order – it requires – it's not totally all
17 encompassing. It requires cooperation from one party or
18 the other. As a general principle I say the plaintiff is
19 protected by her caveat and by her lawyers' caveat, so
20 perhaps it's unnecessary to call on the court to make the
21 first part of the order? But having made the first part
22 just like Justice Hansen and Justice Cavanough did in the
23 Practice Court trials, you would have to make the second
24 part - - -
25HIS HONOUR: What's the order you say I should make? What's
26 the nature of the order? If you're happy with it I'll
27 make it.
28MR DEVRIES: "That contemporaneously with the completion of the
29 sale of that property and the payment of the net proceeds
30 into court, the plaintiff shall cause to be provided in
31 registrable form a withdrawal of caveat lodged on her

2Cressy
1 behalf upon the title of that property". And an
2 identical order except where it's got, "Plaintiff". It
3 will be, "The plaintiff's solicitors", in respect to any
4 caveat they may have.
5HIS HONOUR: I'll hear from Ms Sofroniou on that.
6MR DEVRIES: Sorry, it's the plaintiff's solicitors not – I'm
7 not talking about the - - -
8HIS HONOUR: I'm sorry, and the plaintiff's solicitors do what?
9MR DEVRIES: Do the same thing. You have a wording almost the
10 same but - - -
11HIS HONOUR: I may be totally confused but I don't know what
12 you're – what do you want me to say? I'll only make this
13 order if you – the interests of your client wish me to do
14 it.
15MR JOHNSON: May I speak, Your Honour?
16HIS HONOUR: No. Just a moment.
17MR DEVRIES: Another form would be, "Contemporaneously with the
18 complete" - - -
19HIS HONOUR: Mr Devries, I'm not interested in other forms.
20 Could you – I'm totally confused as to what you want.
21 Can you work out what you want?
22MR DEVRIES: It's the wording I've given to Your Honour and a
23 further order in exactly the same words except that
24 instead of, "Plaintiff", it's, "The plaintiff's
25 solicitors", provide a withdrawal of any caveat they have
26 on the property.
27HIS HONOUR: Mr Turnbull has?
28MR DEVRIES: Yes. Mr Johnson says that he has - - -
29HIS HONOUR: I'll make those orders.
30MR DEVRIES: May it please, Your Honour.
31HIS HONOUR: So firstly until the hearing and determination of

2Cressy
1 this proceeding or further order I shall order as
2 follows. Firstly in the event that the property a
3 10 Hawkhurst Court, Hoppers Crossing be sold. The
4 proceeds of the sale of that property after payment of
5 the reasonable costs of sale and after payment of any
6 moneys owing to the mortgagee be paid into court.
7 Secondly contemporaneously with the completion of the
8 sale of the property and the payment of those moneys into
9 court. The plaintiff shall provide in registrable form a
10 withdrawal of caveat in respect of the caveat lodged on
11 her behalf upon the title of the property. Thirdly
12 contemporaneously with the completion of the sale of that
13 property the plaintiff's current solicitors shall provide
14 in registrable form a withdrawal of caveat in respect of
15 any caveat lodged by them on the title of the property.
16MR DEVRIES: Then there was going to be the injunctions about
17 further dealing with property - - -
18HIS HONOUR: How can I do that if he's going to sell it? You
19 can't have your cake and eat it - - -
20MR DEVRIES: Yes. I won't take the matter further.
21HIS HONOUR: Logically the two are inconsistent.
22MR DEVRIES: That's only if he does – sorry, yes. I won't take
23 the matter further, Your Honour.
24HIS HONOUR: It's been a long week.
25MR JOHNSON: Might I speak briefly, Your Honour?
26HIS HONOUR: The word briefly?
27MR JOHNSON: I am so grateful, Your Honour.
28HIS HONOUR: - - -unusual - - -
29MR JOHNSON: This is the trouble I've had trying to speak
30 commercially with these people for ages. They've opened
31 the door now for me to sell the property for $15 as you

2Cressy
1 said. I of course won't take up that opportunity. No
2 such orders were required on the sale of the Lisa Court
3 property. No such orders have been required here. I've
4 got no problem with the orders as made. I will not be
5 taking advantage of those - - -
6HIS HONOUR: You have no problems with the orders, then there
7 you are. No one's got a problem with them. I have a
8 reservation about them but no one else does, so that's
9 all - - -
11HIS HONOUR: Now, is there anything else? Mr Johnson, you have
12 done yourself no good today. As I keep saying to you,
13 you are an intelligent man, you know when you wish to
14 focus on this case in your own interests to put, you
15 address the issues as pleaded and at large in this case,
16 all right. When we return I expect you to do so. If you
17 don't do it there are two problems or a number of
18 problems. One is you will be failing to address issues
19 which I will be deciding and that would do you no good,
20 obviously, it is important you focus on those issues,
21 keep your mind firmly planted on them so you do yourself
22 justice on them. Secondly, if you continue to waste time
23 it is reflecting very badly on your credibility.
24 Thirdly, it will affect any orders for costs I make at
25 the completion of this proceeding whether you win, lose
26 or draw. Do you follow that?
27MR JOHNSON: I am indebted to Your Honour, I follow the
28 directions.
29HIS HONOUR: I cannot give you any stronger advice than that, I
30 suggest that you think hard about that. You have over
31 the last nine days I would suggest wasted the bulk of it

2Cressy
1 by failing to listen to and follow the admonitions that I
2 have given you, which believe it or not are in your best
3 interests, as well in the interests of this court in
4 completing this case and the interests of all the
5 parties.
7HIS HONOUR: Yes, there were some subpoenaed documents
8 yesterday that were released, I think they were to you
9 first Mr Devries.
10MR DEVRIES: My instructor will deliver them to court by one
11 o'clock, Your Honour, I think they are still being
12 photocopied.
13HIS HONOUR: Yes, well, bear in mind the undertaking given, I
14 expect documents to come back safely.
15MR DEVRIES: Absolutely, Your Honour.
16MR JOHNSON: Thank you, Your Honour. On a similar note there
17 was an exhibit that I handed up in re-examination that
18 page 2 was missing. I have the full of that document,
19 it's not signed, it's a filed copy but it has the
20 missing - - -
21HIS HONOUR: Yes, that's at 58, isn't it, now can you show it
22 to Mr Devries and Ms Sofroniou to ensure that they are
23 content with it. If they are then that can be
24 substituted, the existing 58.
25MR JOHNSON: This one is unsigned, I guess it would be okay for
26 me to sign it now.
27HIS HONOUR: What are you providing?
28MR JOHNSON: Perhaps it's a second exhibit as it is a file copy
29 rather than a signed original Your Honour.
30MR DEVRIES: The original exhibit missed a second page, Your
31 Honour, and what Mr Johnson is seeking to do is to

2Cressy
1 provide a complete version of that fax. I have no
2 objection to that.
3HIS HONOUR: As a substitute or a - - -
4MR DEVRIES: As a substitute, Your Honour.
6HIS HONOUR: It more affects Ms Sofroniou's client than yours,
7 I think.
8MS SOFRONIOU: Yes, and I understand that it falls under Your
9 Honour's general ruling in respect of this.
10HIS HONOUR: Yes. I receive the fax for the communication, not
11 the - - -
12MS SOFRONIOU: Evidence it's contents.
13HIS HONOUR: Evidence it's contents. There was attached to the
14 other exhibit, that is of Mr Anderson and Ms Newcombe.
15 What I think I will do is make this into another exhibit.
16MS SOFRONIOU: Perhaps 58A, Your Honour.
17HIS HONOUR: Yes, thank you.

18
19#EXHIBIT 58A - Complete filed copy of the letter of the
20 defendant to Mr James Turnbull, Berry
21 Family Lawyers, dated 27/03/08.
22MR JOHNSON: As Your Honour pleases. Minus the bundle of
23 enclosures. It was a welcome letter with a whole lot of
24 briefing materials for Mr Turnbull, Your Honour.
25HIS HONOUR: Thank you. Anything else? Otherwise we will
26 adjourn until 9 February.
27ADJOURNED UNTIL MONDAY 9 FEBRUARY 2009

2Cressy

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1MR DEVRIES: Still proceeding, Your Honour.

2HIS HONOUR: Thanks. Now, Mr Johnson, has Mr Cockram arrived

4MR JOHNSON: Mr Cockram was served last night and he is

5 expected at 9.30. Before we call him, Your Honour, I'm

6 obliged to inform the court and my learned friends of

7 certain matters I believe regarding the continuation of

8 the defence's case. In light of my acquaintance

9 yesterday with – I think it was referred to as Knight's

10 case, the requirement to foreshadow certain things to the

11 court and my learned friends. Also my acquaintance with

12 Jones v. Dunkel as of last Friday. Plaintiff's counsels

13 fair warning that is given of his intended use of my

14 Family Law Act affidavit materials.

15 And the fact that this matter has to go forward to 9

16 February next year anyway, which is closer to my original

17 three to four week estimate, which as things have

18 progressed since the beginning of this year was probably

19 a bit skinny in any case. The defence case will not

20 close with Mr Cockram's evidence but I will be calling

21 necessary, expected and previously subpoenaed one or two

22 other witnesses when we resume in the new year.

23HIS HONOUR: You should be applying to do this. Let's go

24 through this. I don't see what Knight's case has got to

26MR JOHNSON: There was a suggestion that a rule mentioned

27 yesterday by Mr Devries that he had to give me fair

28 warning about use of some of the materials from the

29 Family Law Act proceedings, and so I'm providing fair

30 warning as well. In terms of use of use of the Family

1.CI:CS 12/12/08 FTR:1 44 DISCUSSION

2 got no reason to put the case over till tomorrow. I'm

3 not sure what you're warning there.

4MR JOHNSON: Your Honour - - -

5HIS HONOUR: Knight's case involves certain costs and third

8 from the fact that it was mentioned yesterday - - -

9HIS HONOUR: What's Jones v. Dunkel got to do with it?

10 Mr Devries has said that he will not take Jones v. Dunkel

11 point against you.

12MR JOHNSON: In respect of those four witnesses that we need

13 that agreement, and I perhaps made that a little hasty

14 because I should've negotiated for Your Honour to draw

15 positive inferences rather than zero inferences. But be

16 that as it may with the proposed use of the Family Law

17 affidavit material of mine, I intend to call

18 Ms Leanne Kelly my accredited family law specialist of

19 the period as my witness. Also Federal Magistrate

20 O'Dwyer who was amongst those I subpoenaed. Amongst the

21 28 I subpoenaed on 28 November this year.

22HIS HONOUR: If you're going to call that subpoena I would

23 suspect there'll be an application to have it set aside.

24 Have you called that subpoena on?

25MR JOHNSON: I suspect with some of the subpoenas that I will

26 call, they will be set aside.

27HIS HONOUR: Yes, I would to. Now, Leanne Kelly - - -

28MR JOHNSON: If I may - - -

29HIS HONOUR: You wish to call Leanne Kelly in relation to the

31MR JOHNSON: The wording of that, "Lived with or partly lived

1.CI:CS 12/12/08 FTR:1 45 DISCUSSION

2HIS HONOUR: Is Ms Kelly available?

3MR JOHNSON: I have not made enquiries overnight, Your Honour.

4HIS HONOUR: Why not?

5MR JOHNSON: Because she is one of a number of people I will be

7HIS HONOUR: Where is Ms Kelly's offices?

8MR JOHNSON: Either west of the Westgate Bridge or Moonee