Brothel Gate Day 13 AM Only

1MR DEVRIES: The matter is still proceeding Your Honour.
2HIS HONOUR: Yes, thanks Mr Devries. Mr Johnson, where are
3 we up to?
4MR JOHNSON: Yes Your Honour, a couple of preliminary matters.
5 I consulted my affidavit of 2 February this year and
6 there are a number of witnesses listed I was considering
7 calling, I will address the reasons why I haven't called
8 them in submissions. There are three on that list
9 actually that I do wish to call, we discussed Mr Hanlon
10 and Mr Turnbull yesterday. The other man I want to call
11 of course is Mr Devries.
12HIS HONOUR: What basis do you wish to call Mr Devries?
13MR JOHNSON: It goes to the basis of my claim against
14 Ms Cressy's solicitors past and present that this was an
15 oppressive vexatious abuse of court proceedings issuing
16 this statement of claim. It was issued to proffer their
17 caveats that are referred to in my statement of claim and
18 I realised last night Your Honour, the whole purpose of
19 the proceedings, the statement of claim, that had to be
20 filed and advised to the registrar of titles - - -
21HIS HONOUR: Have you got some headphones on - have you got
22 headphones on?
23MR JOHNSON: I'm sorry Your Honour, I forgot to take these off,
24 they're kind of almost part of my organic structure Your
25 Honour. The statement of claim you say I'm bound by my
26 words, I dispute that Your Honour, and it's something I
27 will raise with the Court of Appeal quite naturally. I
28 complained as at 18th or 17th or thereabouts of February
29 in that handful of words written in a handful of minutes
30 with less than a handful of minutes' sleep for a few
31 nights, of the vexatious caveats, because that's
1.LL:MH 10/02/09 FTR:1-2A 62 DISCUSSION

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1 basically where we were at that point. I had at that
2 point filed s.89A applications in respect of the caveats
3 attaching to all of my properties except for the Altona
4 one where the plaintiff was living as she had long term
5 under our child support arrangements, referred to in my
6 counterclaim.
7 I did not wish to frighten her, even though that
8 caveat attaching to the property was as vexatious as all
9 the others, by putting an 89 application in there, a show
10 cause notice issued by the registrar to her lawyers to
11 either show cause issue proceedings or remove the caveat.
12 The proceedings were issued solely because the clock was
13 ticking Your Honour, on those vexatious caveats as
14 they're attached to all the properties of mine other than
15 the Altona one, which I never lodged, I have never lodged
16 even to this day an 89 application against that caveat.
17 Not because I'm suggesting there's any legs in it, there
18 isn't, but simply because I didn't want to leave
19 Ms Cressy with the impression I was trying to throw her
20 out on the street.
21 I've been accused of that that many times, I regard
22 that as highly defamatory, perhaps even criminal
23 defamatory and I understand the privileges attaches to
24 advocates are only in respect of privilege from civil
25 suit within seven days within the immunities in the
26 precincts of the court, not the criminal things that are
27 done. And that's something I will be taking up with
28 senior detectives from the Purana Taskforce as soon as
29 this hearing concludes. I say I don't - - -
30MR DEVRIES: I take that as a threat and an attempt to
31 intimidate me, I submit that that is contempt of this

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1 court Your Honour.
2HIS HONOUR: Yes well - - -
3MR JOHNSON: I think it's a courtesy to inform Mr Devries, as
4 he knows I've been informant in the correspondences - - -
5HIS HONOUR: Mr Johnson's conduct of this case maybe the
6 subject of enquiry by other organisations but that's not
7 a matter for me, I'm concerned with the relevant issues
8 in this case. You don't seem to me to be trying to
9 address them. What do you intend to do today in relation
10 to your case, you've called witnesses, the witnesses thus
11 far you have called you've managed to stay relevant. Now
12 it's the one that you threaten to call, subpoena to call
13 that you constantly wish to push the case off into areas
14 which are not for me to decide.
15 Late yesterday evening we discussed calling
16 Mr Hanlon, I indicated that this is not an occasion where
17 I as trial judge would direct or require a party sitting
18 in court to give evidence for the other side because of
19 the way this case has been conducted and because of the
20 allegations thus far unsupported and made against
21 Mr Hanlon. I left the matter in your hands last evening,
22 what have you done about Mr Hanlon?
23MR JOHNSON: Your Honour, I haven't finished my preliminary
24 points and I'm wanting to come back to that, there's a
25 more serious preliminary point I need to make. I wish to
26 know whether the defendants by counterclaim intend to
27 have Mr Hanlon, Mr Turnbull and Mr Devries call this
28 evidence, witnesses to give evidence-in-chief so I can
29 cross-examine them. If there's no intention to do that
30 my view is that the lack of evidence, real evidence to
31 support the client's case, her lack of credibility which

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1 is demonstrated by the three bags of loot I brought in
2 yesterday, if not previously, by the testimony of Senior
3 Detective Jennifer Locke of the investigation into people
4 who claim in the witness box that they either didn't know
5 each other or couldn't remember. Very specific on
6 remembering the house they lived in for - - -
7HIS HONOUR: She also had a clear recollection that you and
8 Ms Cressy presented to her as a couple.
9MR JOHNSON: Your Honour, again as I said yesterday afternoon
10 and I'm grateful I did, I did not even have time to
11 prepare a list of questions, it didn't occur to me. She
12 saw as in late 2003 early 2004, she never saw as in a
13 family context, there were never children around, never
14 came to my house where Ms Cressy was residing under my
15 roof because the Salvation Army had kicked her out at
16 Illouera Avenue, she didn't have anywhere else to go
17 except whatever nesting activities she had on the go with
18 Mr Cockram. A more experienced advocate, bearing in mind
19 this is my 11th day of my life as an advocate Your
20 Honour, 11 days as against - I did a head count
21 yesterday, six lawyers all almost accredited family law
22 specialists - - -
23HIS HONOUR: Mr Johnson, I will in a moment direct you to sit
24 down and close your case if you do not address relevant
25 issues. You have wasted this court's time, valuable time
26 and scarce time full of blustering, deliberately wasting
27 time and protracting this proceeding. To assist you and
28 importantly to try to complete these proceedings I have
29 tried time and time and time and time again to direct you
30 to the issues. Are you going to call witnesses today or
31 you're now sitting down to close your case?

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1MR JOHNSON: Yes I am calling witnesses today Your Honour - - -
2HIS HONOUR: Who do you call.
3MR JOHNSON: Today Your Honour, I must - I must respond - - -
4HIS HONOUR: Who do you call?
5MR JOHNSON: And I must complete the submissions Your Honour.
6 I'm not wasting the court's time - - -
7HIS HONOUR: You are.
8MR JOHNSON: I did not issue these vexatious oppressive
9 scandalous proceedings, that have wasted two years of my
10 life Your Honour, it took me two years away from my
11 clients, driven me to the point where I had to borrow
12 money again to - - -
13HIS HONOUR: Mr Johnson, I will soon have to give you your last
14 opportunity to announce - - -
15MR JOHNSON: Your Honour - - -
16HIS HONOUR: - - - what you're going to do and then I will take
17 it you've closed your case.
18MR JOHNSON: - - - that - that - - -
19HIS HONOUR: Now what are you doing?
20MR JOHNSON: I totally am not closing my case Your Honour, I
21 wish to put in - - -
22HIS HONOUR: All right, who do you wish to call?
23MR JOHNSON: I wish to put in evidence um, I wish to have -
24 when I complete my preliminary submissions Your Honour, I
25 wish to have Mr Hanlon, Mr Turnbull and Mr Devries give
26 evidence.
27HIS HONOUR: Have you subpoenaed Mr Hanlon?
28MR JOHNSON: The speech in court on 12 December, 11 December,
29 was to the effect that I didn't need to go to that
30 trouble of the paperwork to subpoena people who were
31 present in court.

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1HIS HONOUR: That was not so, that is complete perversion and
2 distortion of what Ms Sofroniou said that day. On that
3 day she said she would then make Mr Hanlon available to
4 give evidence on the 12th. You specifically and
5 expressly declined to call Mr Hanlon, I even stood the
6 matter down for half an hour to give you the opportunity
7 to collect your thoughts, to ask him questions which must
8 have been at the forefront of your mind, you having made
9 serious allegations against him during the whole of this
10 case. You refused to call Mr Hanlon that day and I
11 adjourned the matter.
12 You have not subpoenaed Mr Hanlon to give evidence,
13 you have not compelled him to give evidence, we discussed
14 this last night, I told you as I repeated today, that
15 while ordinarily a judge might have sought to have at
16 least used persuasive and moral pressure to require Mr
17 Hanlon to give evidence, this is not such a case because
18 of the wild and unsubstantiated allegations you've made
19 against him and I made it clear to you that if you wished
20 to call him to give evidence you would need to take steps
21 to compel him to do so. You've subpoenaed everyone else
22 in sight but deliberately not done so today.
23MR JOHNSON: May the transcript record I am holding
24 substantiations, substantial substantiations, it requires
25 two hands, of my very serious carefully presented
26 allegations against all of the family lawyers that have
27 represented Ms Cressy, promoted these proceedings,
28 litigation funded it 99 per cent plus Your Honour.
29 Without any hard evidence, show me the evidence I keep
30 saying.
31 Now Your Honour, I have not completed my preliminary

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1 submissions, I explained again yesterday as I did as
2 best I could on 12 December, I was in no fit condition on
3 human rights grounds, sleep deprivation, financial
4 resources. There are - I will do the head count again,
5 six accredited family law specialists railed against me
6 in this proceeding this morning. I assume some or all of
7 them worked through the night - did they work all through
8 the night and have three hours sleep like I did? Six
9 times the output that I've had.
10 Now I wish - I see no difference if Mr Hanlon is
11 able to go in the box - if Mr Hanlon was able to go in
12 the box on 12 December he's just as fit and able to go in
13 the box today where I'm in a little bit better condition
14 to question him Your Honour. Now my view is that the
15 fraud, the misconduct is so blatant it speaks for itself,
16 that if they don't go in the box it's to their
17 disadvantage because the case is manifest and they have
18 not raised a defence. So I would like to know firstly if
19 Ms Sofroniou is going to have Mr Hanlon, anyone from the
20 2nd or 3rd defendant by counterclaim answer my charges
21 against them.
22HIS HONOUR: Why should she announce her course before you've
23 closed your case, it's most unusual for a defendant to
24 have to do that, I would not require her to do that.
25MR JOHNSON: Your Honour, may I step backwards - - -
26HIS HONOUR: It's a matter for you whether you call the
27 evidence.
28MR JOHNSON: Your Honour, I would like to understand the
29 process for here, as soon as I can complete the documents
30 to appeal Your Honour's judgments and rulings of Thursday
31 last week and yesterday, excluding a whole heap of

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1 relevant material on my analysis of what's relevant to
2 this case, the vexatious scandalous proceedings, the
3 fraud, the crime, the misconduct, the malfeasance, that's
4 the 80 per cent of what's relevant in this case. The
5 fact that the only relevance of the Part 9 and the
6 constructive trust arguments is that they're just not
7 sustained.
8 There's no evidence in the plaintiff's case, hard
9 evidence, real evidence, that she ever earned any money,
10 that she signed any contracts, that she has a tax returns
11 and bank statements, any receipts Your Honour. It's just
12 chit-chatty word and look at her credibility, it should
13 be manifest what her level or lack, total lack of
14 credibility is. Her idea of discovery is to burgle and
15 steal primary evidence. She thinks aggravated burglary
16 is an acceptable means of discovering documents, or
17 concealing evidence Your Honour, I don't know what the
18 lady thinks. She's an Order 15 application person for
19 the whole decade that I've known her, that's why I took
20 her under my wing, I tried to giver her opportunities and
21 help her, primarily for the sake of her children.
22 Now you don't want to hear that evidence, you think
23 it's not relevant, well I can’t help it, but the simple
24 fact is Your Honour, I have those appeals pending. Now
25 how this proceeding got separated off from the real
26 proceeding and you now have - although I wasn't I don't
27 think listed as a formal exhibit yesterday morning, it
28 should have been Your Honour, the full pleadings as they
29 currently stand. And again they're just interim holding
30 until I get Legal Aid funding or accredited family
31 lawyers willing to throw me a $100,000 of credit like

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1 Berry Family Law and Harwood Andrews have to promote this
2 vexatious claim against me, then they will be drafted
3 properly.
4 Now I don't know how the two pleadings got
5 separated, that was your decision Your Honour, your
6 judgment, I argued against it as best I could on the
7 first day of the trial, my very first day of existence as
8 an advocate Your Honour. I did the best I could at the
9 time. Now these appeals go to the Court of Appeal and
10 the Court of Appeal hear me on this, maybe they will be
11 indulgent - not if, but when they rule in my favour that
12 yes the fraud and malfeasance is highly relevant to the
13 counterclaims and to the application for costs against
14 present and past solicitors of the plaintiff. Then
15 evidence should have been in this vessel in this bit of
16 proceedings should it not.
17 Now if I've closed my case, submissions have been
18 given, the trial is concluded, all that's awaiting is
19 your judgment on it. What has happened to the vessel for
20 that subpoenaed relevant material to now be brought back
21 into this proceedings? Does Your Honour - I don't
22 understand - how can we know that the evidence is not
23 going to be held relevant - I believe the barometer of
24 relevance here it patently is. How do we know today that
25 that's not going to be relevant when the Court of Appeal
26 hears and determines my appeals on those points in my
27 favour. We don't know do we Your Honour, so how can I
28 even close my case when it's uncertain whether
29 substantial evidence is going to be held by the Court of
30 Appeal to be relevant to the very heart of the issues in
31 these proceedings. It's my 11th day as an advocate Your

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1 Honour, I don't know the process, I don't understand the
2 process from here, I don't understand. I did ask many
3 times yesterday was it proper and sensible use of Your
4 Honour's time to be hearing those additional subpoena
5 applications, given that the process was going to be a
6 repetition of the process that occurred on Thursday's
7 trial within the trial, Your Honour.
8HIS HONOUR: Have you completed your submission?
9MR JOHNSON: I'm sitting humbly waiting for an answer for what
10 does happen once the Court of Appeal rules on my appeal
11 on your rulings on the subpoena material.
12HIS HONOUR: Well, what's for the Court of Appeal is for the
13 Court of Appeal, I'm hearing a trial, you have - you're
14 in the middle of your case, you have called witnesses,
15 I'm waiting to find out whether you're going to call any
16 further witness today before you close your case. I have
17 cautioned you time and time and time again against
18 philibustering and wasting the time of this court. I
19 warn you that whether you win or lose this case, your
20 conduct will detrimentally affect you on any issues of
21 costs, because it's been my perception your time wasting
22 has inordinately protracted this court's time, and you
23 have done it deliberately. Now, I ask you for one last
24 time, what do you intend to do now? Are you going to
25 call any further witnesses?
26MR JOHNSON: Your Honour, I am an advocate - - -
27HIS HONOUR: - - - before you close your case?
28MR JOHNSON: - - - excuse me, Your Honour, I am an advocate of
29 less than 11 days experience as the court currently
30 stands. I'm asking a reasonable question. If I am
31 forced to close my case today, and I would love to get

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1 this out of the way today, the whole bloody mess out of
2 the way, Your Honour, so that I can resume my life that's
3 been burning a dancing inferno for almost two years. My
4 clients have been waiting for me some cases over a year
5 before I can do the work here. I want to get back to my
6 life, Your Honour. I've got no desire to delay this. I
7 don't understand how Your Honour can expect, let alone
8 force me to close the case. How can Your Honour properly
9 complete this trial when there's a serious question yet
10 to be put to the Court of Appeal whether a whole host of
11 witnesses and materials are relevant and have to be
12 brought back into the trial? If I close my case, you
13 close this trial, Your Honour, what's the process for you
14 to reopen - - -
15HIS HONOUR: Because I will not - - -
16MR JOHNSON: - - - Court of Appeal - - -
17HIS HONOUR: - - - I'm not going to adjourn the case if that's
18 what you're trying to put pending - just let me talk. I
19 will not adjourn the case pending some appeal, which I
20 don't know whether you've - is instituted or not against
21 an interlocutory decision I have made in the running of
22 the case. I'd be amazed if the Court of Appeal
23 entertained such an appeal, but that's a matter for them,
24 but unless and until they entertained that appeal,
25 actually heard it and determined it, I'm hearing this
26 case to its completion. I hope I have made myself
27 sufficiently clear.
28 The work of this trial court would be absolutely
29 impossible and unworkable if a trial judge were to
30 interrupt a trial at the behest of one party because that
31 party wished to appeal some order made by the judge

2Cressy
1 relating to evidence that was subpoenaed during it. That
2 is not the way trial courts do work, it's not the way
3 they can work. Now, Mr Johnson, you are running out of
4 opportunities. Are you going to call any further
5 witnesses today, or do I take it that you have exhausted
6 the amount of witnesses you're calling and therefore it
7 will follow that your case is completed?
8MR JOHNSON: Your Honour, I do wish to call additional
9 witnesses - - -
10HIS HONOUR: Right, call the witness.
11MR JOHNSON: - - - but I still need to understand the process,
12 I'm not an experienced - - -
13HIS HONOUR: The process is that the plaintiff goes first,
14 Mr Devries has gone first, he has called his witnesses.
15 As you have well understood, you have gone next, you have
16 given evidence yourself over a lengthy period of time,
17 you have called I think it's now five witnesses on your
18 behalf in relation to the issues in this case. You have
19 now delayed the completion of this case on a number of
20 occasions, on 12 December by wanting to call more
21 witnesses, yesterday afternoon when you came to an end of
22 your witnesses, and you have now wasted 20 minutes of
23 this court's valuable time by philibustering, time
24 wasting and speechifying on irrelevant issues.
25MR JOHNSON: Your Honour, I have a serious - - -
26HIS HONOUR: I have given you every opportunity and more to
27 address the issues between yourself and Ms Cressy and the
28 issues in the counterclaim.
29MR JOHNSON: Your Honour, you and I, with respect, do not see
30 eye to eye on what are the issues in the case.
31HIS HONOUR: Well, my ruling binds you in this trial. You have

2Cressy
1 wished to flout it on a daily basis, on an hourly basis.
2 I warned you, you will not wear me down on that.
4HIS HONOUR: Better people have tried than you and have come a
5 cropper.
6MR JOHNSON: Your Honour, I'm not trying to wear anybody down,
7 I just do not have access to one, two, three, four, five,
8 six quite experienced accredited family law specialists
9 to advise me what the process happens at this
10 trial - - -
11HIS HONOUR: You fully understand what the process -
12 Mr Johnson, you fully know the process. I've explained
13 it to you. In fact, when you've wanted to, you seem to
14 have understood court processes very well, as I have said
15 so.
16MR JOHNSON: Forgive me, Your Honour, but if the Court of
17 Appeal - - -
18HIS HONOUR: All right, are you calling any more witnesses?
19MR JOHNSON: Your Honour, forgive me, but if the Court of
20 Appeal rules in my favour and the ministers are
21 subpoenaed and the documents and the materials and the
22 question I wanted to ask in this court yesterday are
23 relevant to the issues according to the Court of Appeal,
24 but this trial has in your eyes, Your Honour, finished,
25 how does that evidence that the Court of Appeal says,
26 yes, must be there, get brought in before Your Honour?
27HIS HONOUR: That will be a matter for the Court of Appeal to
28 determine if it upholds your appeal.
29MR JOHNSON: Bearing in mind that the Attorney General of
30 Victoria and the Equal Opportunity & Human Rights
31 Commission have rights of standing to become interested

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1 parties and involved in my appeal, they're rights that I
2 have, I have an obligation to notify them under the
3 Victorian Charter of Human Rights - - -
4HIS HONOUR: Well, you do that, but I'm hearing a case between
5 parties who you have brought to court, (indistinct) which
6 you made unsubstantiated and wild allegations. Now, this
7 is your last opportunity, are you closing your case or
8 are you going to now call a witness?
9MR JOHNSON: I am not closing my case this very minute, I - - -
10HIS HONOUR: Right, you'll call - - -
11MR JOHNSON: - - - I have a duty to - - -
12HIS HONOUR: - - - call a witness.
13MR JOHNSON: I have a duty to inform the court of my concern
14 that these proceedings have got off to a - - -
15HIS HONOUR: You are deliberately delaying - - -
16MR JOHNSON: - - - start.
17HIS HONOUR: - - - you are deliberately disobeying my direction
18 to you.
19MR JOHNSON: I'm deliberately - - -
20HIS HONOUR: Are you - - -
21MR JOHNSON: - - - putting my case the way that a man such as
22 this man would on behalf of myself as client - - -
23HIS HONOUR: Are you closing your case or not?
24MR JOHNSON: Your Honour, these proceedings kick off badly by
25 being separated from the main proceedings, they should
26 not be tested to pleadings at different times, they're
27 kicked off badly again, with respect, Your Honour, with
28 your rulings as to the scope of relevant issues, and your
29 rulings on the subpoenas on Thursday and yesterday. I'm
30 concerned that they're going to kick off badly, kick
31 through a third time badly, Your Honour. I don't

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1 understand this process that this trial is the vessel for
2 evidence on the issues. There's a real dispute as to
3 exactly the scope of the relevant issues in this case,
4 Your Honour.
5HIS HONOUR: Well, I've made rulings on that and you are bound
6 by my rulings.
7MR JOHNSON: I have done my duty to raise the issues with you,
8 Your Honour.
9HIS HONOUR: Right. Now, you're sitting down, are you?
10MR JOHNSON: No, because I wish - - -
11HIS HONOUR: You're calling witnesses?
12MR JOHNSON: - - - I wish to invite sequentially Mr David
13 William Hanlon, Mr James William Turnbull and Mr Graham
14 Devries in that order to step in the box to give
15 evidence. If they're not going to do that, Your Honour -
16 and I'm handicapping myself because the questions I ask
17 will have to be of witnesses in evidence-in-chief not
18 cross-examination, which I don't think is right - if they
19 won't step in I wish to - whatever process I need to,
20 maybe I need to ask leave to step back in the box for a
21 few minutes, because there are materials that I expected
22 by the Legal Services Commissioner giving evidence, which
23 he should have given yesterday, Your Honour, and/or by
24 asking questions of Mr Hanlon, Mr Turnbull and
25 Mr Devries, to put this material in evidence. They are
26 relevant to the issues in the case as I've (indistinct)
27 them many, many times, Your Honour. They are matters
28 which I wish to refer to, evidence I wish to refer to in
29 my submissions, Your Honour.
30(RULING FOLLOWS)
31

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1MR JOHNSON: I thank Your Honour for that one last indulgence.
2MS SOFRONIOU: Your Honour, if I may - - -
3HIS HONOUR: Yes.
4MS SOFRONIOU: - - - while Mr Johnson is considering that - - -
5MR JOHNSON: - - - no time to consider, Your Honour, but I do
6 wish to respond - - -
7HIS HONOUR: You'll be seated while Ms Sofroniou makes her
8 submission to me.
9MS SOFRONIOU: It's consistent with my duties as an officer of
10 the court, Your Honour, to - if I may draw Your Honour's
11 attention to s.11 of the Evidence Act, my understanding
12 is that Your Honour's - Your Honour has mentioned that
13 Your Honour has a persuasive power.
14HIS HONOUR: Yes.
15MS SOFRONIOU: It's appropriate to remind Your Honour that Your
16 Honour in fact can compel. Of course I don't want to
17 derogate at all from what Your Honour's just said, which
18 is in my client's favour.
19HIS HONOUR: May be called, it's a discretionary power.
20MS SOFRONIOU: That's so.
21HIS HONOUR: I must say, for reasons I said, I'm reluctant to
22 do it. If you don't oppose me doing it, I'm prepared
23 to - - -
24MS SOFRONIOU: No, I do, but I didn't want - - -
25HIS HONOUR: No, I follow that.
26MS SOFRONIOU: I thought it was appropriate for me to - - -
27HIS HONOUR: I forgotten that there was a section here. I'm
28 aware of the power, and that is that there is a power to
29 compel.
30MS SOFRONIOU: That's so, Your Honour.
31HIS HONOUR: But it seems to me, and I am very concerned about
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1 doing it in a case of this type.
2MS SOFRONIOU: In fact the unfairness operates in the following
3 way. It would be an untenable position. I've
4 foreshadowed that I wish to make no case submission and
5 that I don't wish to make an election prior to doing
6 that, but of course that's within Your Honour's
7 discretion, but that's my application. Had Mr Hanlon
8 been called, that would in fact stymie the very
9 application I wish to make, since having called him - - -
10HIS HONOUR: Well, it would have obviated the whole thing.
11MS SOFRONIOU: Well, the problem would be this, that Mr Johnson
12 would question Mr Hanlon, I would probably object to
13 almost everything that didn't relate to an issue in the
14 proceedings. Having then finished, it's inappropriate
15 for me to cross-examine my client.
16HIS HONOUR: Having – maybe, maybe not. You're entitled to,
17 you probably have to ask non-leading questions. The
18 words "may be called" - - -
19MS SOFRONIOU: Well, I don't wish to, of course.
20HIS HONOUR: Does that give a discretion? My understanding is
21 it's always been a discretionary power.
22MS SOFRONIOU: It is discretionary power, that's so, Your
23 Honour.
24HIS HONOUR: Judges ordinarily exercise that discretion in
25 favour of directing a witness.
26MS SOFRONIOU: That's so, but I - - -
27HIS HONOUR: My experience is I – this - - -
28MS SOFRONIOU: In this case, my submissions, Your Honour,
29 wouldn't, but I didn't want Your Honour to think Your
30 Honour couldn't, as it were, which – without drawing that
31 to Your Honour's attention.

2Cressy
1HIS HONOUR: Well, my basic concerns are these, firstly, that
2 Mr Johnson has, time and time and time again, shown
3 that he has not – does not wish to adhere to the issues
4 in the case.
5MS SOFRONIOU: That's so, Your Honour, and that means - - -
6HIS HONOUR: Secondly, he's made wild allegations, so far
7 unsubstantiated. When he's had the opportunity to
8 substantiate them, such as by cross-examining Ms Cressy,
9 as you invited him to do in relation to one of the
10 allegations in the counterclaim, he refused to do so, he
11 adduced no evidence, he's now twice been in the witness
12 box in relation to these issues. In those circumstances,
13 it would seem to me to be oppressive to require a person
14 who is the respondent to allegations of the type not only
15 articulated in the counterclaim, but also which had been
16 expressed in the most florid terms in court.
17MS SOFRONIOU: Thank you, Your Honour.
18HIS HONOUR: Into the witness box. Now, if there is a reason
19 why if the client would do it - - -
21HIS HONOUR: I did issue – I didn't even issue the invitation,
22 but you were good enough to offer your witness up last
23 year, and I would not compel him to do it now, it would
24 seem to me to be wrong.
25MS SOFRONIOU: Thank you, Your Honour. He can take comfort in
26 the fact that should my application fail, I will be
27 calling evidence and he'll cross-examine.
28HIS HONOUR: Yes.
29MS SOFRONIOU: But I still have the right to have that
30 application heard without it being, as it were, unmined
31 or stymied by a course which cannot lead to evidence

2Cressy
1 relevant to the issues in the case, Your Honour.
2HIS HONOUR: I follow that. The only way I would – Mr Hanlon
3 would be required to give evidence is if a subpoena was
4 issued, because I could – I would be – as for the reasons
5 I've articulated, I would not require him under – I'd
6 understood it just to be a common law power, but I think
7 this is just a power that I've seen exercised time and
8 again in court.
9MS SOFRONIOU: And even under subpoena, Your Honour, in my
10 submission, wouldn't, in any event, spare the futile step
11 for the matter that I've raised. It's an abuse of
12 process of the court to do it, to undermine a no case
13 application.
14HIS HONOUR: Well, you're entitled – I don't know about that, I
15 mean if he can call evidence to beat a no case, he's
16 entitled to do it.
17MS SOFRONIOU: But it has the – it undermines my
18 application - - -
19HIS HONOUR: Well, that may be right, but he's entitled to do
20 it.
21MS SOFRONIOU: It stymies it, that's - - -
22HIS HONOUR: He's entitled to do it, but I would be reluctant
23 to use my powers as a trial judge to force a party into
24 court, if an order was made through a subpoena directing
25 him, that's a different matter, unless the subpoena's set
26 aside, but this case is such an extraordinary case, it
27 would seem to me to be wrong that I require Mr Hanlon to
28 give the evidence.
29MS SOFRONIOU: May it please the court.
30HIS HONOUR: The only thing is, Mr Johnson, I would give you
31 one hour, one last chance if you wanted to call

2Cressy
1 Mr Hanlon, if you went – if you obtained a subpoena, I'm
2 sure he would receive it on the spot here, but I'm very
3 reluctant to use my powers as a trial judge to ask him to
4 go into the witness box.
5MS SOFRONIOU: Well, as I say, if Your Honour takes that
6 course - - -
7HIS HONOUR: Yes?
8MS SOFRONIOU: There would be applications I want to make about
9 that.
10HIS HONOUR: Yes.
11MS SOFRONIOU: It really will raise a practical problem once
12 that happens.
13HIS HONOUR: In relation to what?
14MS SOFRONIOU: Calling a witness twice, whether Mr - - -
15HIS HONOUR: You'd be entitled to cross-examine him.
16MS SOFRONIOU: Well, of course, but I don't wish to, of course.
17 The issue is though it's not the case that the evidence
18 that I would have to rely upon, were my application
19 to fail.
20HIS HONOUR: M'mm.
21MS SOFRONIOU: Well, Mr Johnson isn't going to elicit that.
22 That means I would have to call him, he would get to
23 cross-examine him. He can't lose his right of cross-
24 examination because he's examined-in-chief wrongly, it
25 actually is an underlying - - -
26HIS HONOUR: I don't follow that. If Mr Johnson calls
27 Mr Hanlon as his witness, you're at large on cross-
28 examination and re-examination, Mr Johnson would be
29 confined to non-leading questions.
30MS SOFRONIOU: Well, I suppose it only goes to serve that
31 Mr Johnson doesn't do himself any favours, in that the

2Cressy
1 cross-examination ability he might otherwise have, if I
2 lose my application, will effectively be lost.
3HIS HONOUR: Well, that's a matter for him.
4MS SOFRONIOU: Yes, thank you, Your Honour.
5HIS HONOUR: But as I say, I – unless Mr Johnson will put
6 better arguments that he has so far, I will not exercise
7 powers to force Mr Hanlon into the witness box.
9HIS HONOUR: But if he were to issue a subpoena, then I've
10 – unless the subpoena was set aside, then he could call
11 him. I know it sounds a procedural issue, but there's a
12 trial judge on what has been adduced so far, I do not
13 think it would be right for me to force Mr Hanlon into
14 the witness box otherwise. Mr Johnson, do you - - -
15MR JOHNSON: Thank you, Your Honour.
16HIS HONOUR: I'll hear from you in a moment, Mr Devries.
17MR JOHNSON: I do need to think about issuing that subpoena
18 course, I thought the discussion, and perhaps I got this
19 wrong, the discussion on 11 and 12 December was that such
20 a course of action would not necessary against the fellow
21 officer of the court who's present in court, I could
22 simply - - -
23HIS HONOUR: Well, you misunderstood that, and I – you were
24 again warned last night. Now, what are you going to do?
25MR JOHNSON: Quickly mention that you said eight things about
26 my conduct at the trial, just before Ms Sofroniou spoke,
27 the time and time again, et cetera, there were eight
28 things that just – for the transcript I want it noted
29 that I'm not going to respond to, but I don't accept.
30 Also, on the relevance, can I refer to the court book of
31 the 2nd and 3rd defendants by counterclaim, Your Honour?

2Cressy
1 I believe these documents are relevant materials in the
2 court.
3HIS HONOUR: Mr Johnson, you're wasting time. Are you going to
4 subpoena Mr Hanlon or not?
5MR JOHNSON: I - - -
6HIS HONOUR: Yes or no?
7MR JOHNSON: I'm disappointed it has come to - - -
8HIS HONOUR: Are you going to subpoena Mr Hanlon or not?
9MR JOHNSON: I'm disappointed it has come to that, but yes, if
10 it must come to that.
11HIS HONOUR: All right. You have one hour to go to the
12 registry, get a subpoena, come back. If you have it, I'm
13 sure Ms Sofroniou will accept service and you'll call
14 him. Mr Devries, have you got anything to put - - -
15MR DEVRIES: Yes, I was just going to point out, with the
16 greatest of respect, Your Honour, that Your Honour made a
17 ruling at the end of last year as to the date by which
18 subpoenas weren't - - -
19HIS HONOUR: I follow that, but this is a trial, I've made that
20 direction, but I will give Mr Johnson one last chance. I
21 don't want to waste any more time. I will be back at
22 Monday. If you have a subpoena in your hand, Mr Johnson,
23 to show that you are fair dinkum about calling Mr Hanlon,
24 we'll proceed from there. I know it's a bit unusual, but
25 I just, as a trial judge, do not to wish to exercise any
26 power I have in relation to this for the reasons I've
27 articulated. I will return at midday, Mr Johnson.
28MS SOFRONIOU: And could Your Honour go on to say that that
29 means that Mr Johnson will not be able to cross-examine
30 him - - -
31HIS HONOUR: He understands that.

2Cressy
1MS SOFRONIOU: In the event that my no case to answer is
2 unsuccessful, and I just want to be sure that he
3 understands that.
4HIS HONOUR: Mr Johnson will understand that Mr Hanlon will be
5 his witness if you call him. I've told you this many
6 times, that Ms Sofroniou will therefore have a right to
7 cross-examine, there will be limits on that in the sense
8 that she can ask questions beyond the matters on which
9 you have examined, but she will not ask leading
10 questions. You will have a right of re-examination, but
11 not of cross-examination. Do you follow that?
12MR JOHNSON: I follow that, I - - -
13HIS HONOUR: Right, I'll adjourn til midday.
14MR JOHNSON: - - - process, Your Honour, thank you.
15HIS HONOUR: Twelve o'clock, no later.
16 (Short adjournment.)
17HIS HONOUR: Mr Devries?
18MR DEVRIES: Your Honour, can I trouble Your Honour with just a
19 minute of Your Honour's time? Two things, one is
20 Mr Johnson has made a number of serious accusations
21 against my instructors and I. For the record, they're
22 denied, so that he can't use by absence of denying them
23 in other proceedings.
24HIS HONOUR: Yes.
25MR DEVRIES: Secondly, Your Honour, the transcript of
26 yesterday's proceedings, the cover sheet has achieved
27 what Mr Johnson has been seeking for a long time and
28 that's my removal from the record. Just for the sake of
29 the record - - -
30HIS HONOUR: You are not recorded as being on there?
31MR DEVRIES: I'm not on the cover sheet, Mr Turnbull remains.

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1HIS HONOUR: I'm not sure if you got a word in edgewise
2 yesterday.
3MR DEVRIES: I didn't, Your Honour, I was - - -
4HIS HONOUR: I don't think anyone did.
5MR DEVRIES: - - - very thankful for that, and - - -
6HIS HONOUR: Well, Mr Devries is still here, alive and fit and
7 well for the plaintiff.
8MR DEVRIES: And the other matter, for the sake of formality,
9 Your Honour, I've handed to Your Honour's associate a
10 copy of an unrecorded decision of - - -
11HIS HONOUR: Yes, thank you for that, in fact I had noted it
12 over the holidays, that's of assistance.
13MR DEVRIES: As an unrecorded decision I'm obliged to give Your
14 Honour a copy, and I've given one to - or had one given
15 to Mr Johnson by my instructor.
16HIS HONOUR: Thanks, Mr Devries, thank you for your assistance.
17MR DEVRIES: Thank you, Your Honour.
18HIS HONOUR: Now, Mr Johnson, where are we at, have you - - -
19MR JOHNSON: Yes, Your Honour, thank you, I was able in the
20 time you graciously provided, Your Honour, to organise a
21 subpoena for David William Hanlon. As I was leaving to
22 do that, James Turnbull kindly suggested that I organise
23 subpoenas for both himself and Graham Devries, so I've
24 done that also. At the Prothonotary's office I was also
25 asked, rather than keeping the court copy, to bring
26 Your Honour's copy to court with me, so shall I hand
27 them sequentially or should I hand all three up now,
28 Your Honour?
29HIS HONOUR: Well, hand three to me. Firstly, Ms Sofroniou,
30 will accept services on behalf of your client if
31 Mr Hanlon's subpoenaed? Thank you.

2Cressy
1MR JOHNSON: Thank you, Ms Sofroniou.
2HIS HONOUR: If you could provide a copy of that to
3 Ms Sofroniou. Now, what are you giving me, Mr Johnson,
4 copies of the three subpoenas you've just issued?
5MR JOHNSON: Yes, Your Honour, they are the court copies, Your
6 Honour, Prothonotary asked me to bring them back to court
7 with me.
8HIS HONOUR: David William Hanlon.
9MR JOHNSON: Shall I give Mr Devries and Mr Turnbull theirs
10 also?
11HIS HONOUR: I'm not going to invite them to accept services,
12 it's a matter for them.
14MR DEVRIES: It was suggested that if he was going to issue to
15 subpoenas to us, rather than have another hour's delay
16 later, we could do it all today - - -
17HIS HONOUR: Hopefully.
18MR DEVRIES: - - - still be objected to, Your Honour - - -
19HIS HONOUR: Do you receive it anyway, Mr Devries?
20MR DEVRIES: I do, Your Honour.
21HIS HONOUR: Well, Mr Johnson's handed - I should record he's
22 handed copies of subpoenas to Ms Sofroniou on behalf of
23 Mr Hanlon to Mr Devries and Mr Turnbull. Perhaps going
24 back to front, I would anticipate an application by you,
25 Mr Devries, on your behalf, and - - -
26MR DEVRIES: And on Mr Turnbull's - - -
27HIS HONOUR: - - - Mr Turnbull's behalf.
28MR DEVRIES: Mr Turnbull was of the view that only he could
29 make it on his behalf. I'm not sure that that's
30 quite correct, but if you wish us to, I'm not going to
31 stand in your way.

2Cressy
1HIS HONOUR: You could do it, I suppose, either as a friend of
2 the court, or if Mr Turnbull wishes to make the
3 application himself he's entitled to.
4MR DEVRIES: I'd be doing it as counsel for Ms Cressy,
5 objecting to (indistinct) make those - - -
6HIS HONOUR: Well, I follow that. Mr Johnson, this is ground
7 we've trodden on already. You've nonetheless seen fit to
8 subpoena Mr Devries and Mr Turnbull. What issues in this
9 case do you wish to call Mr Devries and Mr Turnbull to
10 give evidence about, the issues in this case?
11MR JOHNSON: I wish to ask them to give evidence about the
12 issues in this case, which are the Part 9 and
13 Constructive Trust claim by Ms Cressy which they
14 inherited from David Hanlon and Howard Andrews. And
15 particularly what I believe goes to the heart of what's
16 relevant in this case, what steps they took, given that
17 none has been presented in any of the court hearings, to
18 obtain hard evidence from statutory records, titles,
19 office documents, birth certificates for children,
20 contracts for my properties, there's no contracts for my
21 property with names of the plaintiff on it, there's no
22 income tax returns to show that she earned income to make
23 any contribution to the acquisition, maintenance or
24 improvement of my properties, there's no bank statements
25 to show any income, there's no payslip from her
26 employers, and she had substantive employers, as was
27 embarrassingly drawn out when I cross-examined her, Your
28 Honour. Where's the evidence? She's making these
29 claims, can't she even go to her employers and get
30 payslips? Hasn't she filed tax returns? Doesn't she
31 have bank accounts? Where's the receipts for all these

2Cressy
1 tens of thousands of dollars she claims to have spent?
2HIS HONOUR: Right, you're now making an argument, but in final
3 address I've asked you to indicate the basis upon which
4 you seek to call Mr Devries and Mr Turnbull. In that
5 respect do you wish to say anything else?
6MR JOHNSON: I do, Your Honour, res ipsa loquitur, it speaks
7 for itself. If there is no evidence - a caveat is a very
8 serious thing, Your Honour, it deprives a man of his
9 freeholds and can have other impacts on his liberties,
10 without due process, without trial by his peers. I'm
11 quoting an English translation of Clause 39 of the magna
12 carta. Geoffrey Robertson kindly translates it from the
13 Latin, if I can read that to you. A caveat's a very
14 serious matter, that's why in those proceedings in the
15 Land Titles Office, claims have to be, in some respects
16 of that process, certified by a solicitor as believing
17 there's a reasonably arguable case.
18 When I filed my s.89A applications against the
19 caveats attaching all the properties but the one at
20 Altona where I was letting her live in and trying to sort
21 out some ongoing variation of the terms on which I was
22 allowing her to live there, I had to certify in my
23 capacity as a solicitor that I thought that I had a
24 reasonable case - I had much more than that, Your Honour
25 - for challenging the caveats. The caveats would then
26 have lapsed if the statement of claim of 26 November 2007
27 had not been (a) filed in court and (b) notified to the
28 registrar. The statement of claim is a device to prop up
29 and to prevent the expiration of the caveats, the first
30 caveat on behalf of Ms Cressy that I've referred to in my
31 counterclaim document.

2Cressy
1 These are very serious matters. Deprivation of
2 freeholds and other liberties, certainly serious enough
3 for the barons in 1215 to require King John to sign the
4 magna carta, certainly serious enough for those rights
5 that the man and his freehold not to be deprived of his
6 freehold or other liberties, to be enshrined 400 and
7 70 something years later in the English Bill of Rights,
8 1689. Serious enough that we are the sole jurisdiction
9 in this federal nation of ours to have a charter of human
10 rights and responsibilities protecting those rights.
11 A lot of power through this caveat process is
12 trusted into solicitors. They're officers of the court.
13 There's a pretty solid argument that as an officer and
14 solicitor of the court I am under the same legal
15 obligation to respect the human rights and freedoms
16 enshrined in our Victorian Charter of Human Rights and
17 Independence as other officers of this court, Your
18 Honour, and indeed other officers of other arms of
19 government, at the state and the federal level, in their
20 dealings with men, women and children of Victoria.
21 Now, that very serious process of doing things which
22 are prohibited by the magna carta, prohibited by the
23 1689, I believe it is, bill of rights, prohibited by our
24 charter of human rights and responsibilities of 2005,
25 doing those things relies on the good faith of
26 professionalism, the independence brought to mind by
27 barristers and solicitors, office of the court in their
28 dealings with the Titles Office on that process. I
29 submit, Your Honour, the power of solicitors in issuing
30 caveats can't be exercised willy nilly. It can't be
31 exercised on an unsubstantiated claim, a lady walks in

2Cressy
1 off the street and makes a claim. Your Honour - - -
2HIS HONOUR: Well, what's this got to do with Mr Devries and
3 Mr Turnbull? They did not cause any caveat to be lodged
4 over your properties, they're here to represent
5 Ms Cressy.
6MR JOHNSON: In Callinan's case there's a description of what
7 constitutes abuse of process misdecence. There are
8 earlier cases referred to in the relevant
9 paragraphs - - -
10HIS HONOUR: Which judgment in White Industries do you
11 refer to?
12MR JOHNSON: As Your Honour indicated yesterday afternoon, the
13 Federal Court including Mr Justice Sunberg in the
14 Australian Law Reports - forgive me, it's 25 years since
15 I've had to do this formally - Australian Law Reports
16 of - - -
17HIS HONOUR: You're referring to the Full Court's decision, are
18 you?
19MR JOHNSON: Yes, Your Honour. I have two cites here, one is
20 - forgive me for doing it in the - - -
21HIS HONOUR: Well, we're getting a long way - - -
22MR JOHNSON: - - - 1963 ALF744, Your Honour. And the head note
23 says it all. The misdecence arises not only from the
24 issuing of proceedings, but the continuation of those
25 proceedings, once you are aware that they are vexatious
26 and oppressive - - -
27HIS HONOUR: What proceedings, a caveat? You seem to have
28 slipped from the caveat to these proceedings.
29MR JOHNSON: Well, what happened is the caveat - - -
30HIS HONOUR: Mr Johnson, you are now philibustering, I've
31 allowed you to go more than I think is sufficient.

2Cressy
2HIS HONOUR: Other parties have rights and - just a moment
3 please. Other parties do have rights in these
4 proceedings and you are trampling over their rights to be
5 heard. How is the evidence from Mr Devries and
6 Mr Turnbull relevant?
7MR JOHNSON: Your Honour, as a principle of a human rights
8 legal practice, Sutton Lawyers Proprietary Limited, and
9 as the founder of the One Law foundation, a human rights
10 and law reform organisation, I hope I'm not trampling on
11 anybody's human rights here today, Your Honour. There
12 were caveats, the third wave of caveats mentioned
13 yesterday to Your Honour on the application regarding
14 Mr Peter Berry. It's the caveat that was filed in or
15 about - it's dated 6 April 2008.
16 Exactly the same issue I've just enunciated arises,
17 show me the evidence to support this caveat. That is
18 what I want to ask. What are officers of the court with
19 duties to the court, professional duties, going doing
20 things under the Land Titles Office process that violate
21 very (indistinct) human rights in this jurisdiction that
22 have been recognised in our answers to jurisdictions
23 going back to the magna carta of 1215, without any hard
24 evidence, Your Honour. It's a total no-no to just do
25 what the client says, an ultimata, not to check it out.
26 It's an extreme no-no, and I'll flip back to the
27 earlier caveats in Harwood Andrews when a gentleman you
28 have not only known on a first name basis for a decade,
29 but you have been in the multi million dollar annual
30 employment of that gentleman, tells you that something's
31 very wrong with the stories you are being told. You're

2Cressy
1 put on notice you should make inquiry. To proceed, to
2 flow through, to get to a trial where suddenly it's
3 realised, boys, show me the evidence. It's not there.
4 They're relying on wild, unsubstantiated,
5 unsubstantiable claims by the plaintiff, there's some
6 relationship, all right, look at the lady's credibility,
7 look at the list of witnesses they have produced. Your
8 Honour, there are two dimensions to this case, more than
9 two. The first is the claim, the plaintiff saying Part
10 9, Constructive Trust, no evidence, no evidence. So the
11 case is manifest, unless these gentlemen have a defence
12 or an excuse, clearly a fraud has been committed,
13 depending on the quality of mens rea, a crime has been
14 committed. Depending on the extent of discussion which I
15 will never know about, because these officers of court
16 will claim privileges within the court precinct
17 And privileges as officers of the court. I will
18 never know that, I'm not asking those sorts of questions,
19 it's a fruitless exercise, Your Honour, but it speaks for
20 itself there has been a fraud that's been perpetrated
21 using officers of this court, an accredited Family Law
22 specialist claiming decades or more experience, who
23 didn't do the due diligence, the research, the checks of
24 independent, publicly domain records, the client's
25 private records that she should have been able to come up
26 with to demonstrate the claims written out in the
27 caveats. The claims in her caveats - - -
28HIS HONOUR: Mr Johnson - - -
29MR JOHNSON: - - - of the (indistinct) caveats.
30HIS HONOUR: You have made this point repetitively, it doesn't
31 get better by repetition, is there anything other than

2Cressy
1 that point that you intend to put in favour of the
2 subpoenas you've directed to Mr Devries, who represents
3 the plaintiff in this matter, and Mr Turnbull, her
4 solicitor?
6HIS HONOUR: Is there any other matter, without repeating?
7MR JOHNSON: I've invited these men as a courtesy, even after
8 they've closed the plaintiff's case to show the evidence.
9 If they can't provide an excuse or do not want to provide
10 an excuse for that conduct, it's manifest, it speaks for
11 itself. The case against them is proven, it follows that
12 under Callinan's principles and order – the part of
13 Order 63, I think it's Part 17, Your Honour, I should get
14 an order for costs from you against the plaintiff's
15 present legal team and her previous legal team, and what
16 underscores that is they have known all along that they
17 have litigation funded, over $300,000 worth of the time
18 that they've recorded these – let me count. One, two,
19 three, four, five family lawyers present in court today,
20 they have litigation funded, over 99 per cent.
21 That is outrageous, that is a much more staggering
22 abuse of court process and misfeasance than the things of
23 Flower & Hart and Dr Ian Callinan, as he was before he
24 ascended to the High Court was in respect of that episode
25 that we now know as Callinan's case, Your Honour. The
26 case speaks for itself, it is proven - - -
27HIS HONOUR: If it speaks for itself, you've said enough. Now,
28 Mr Johnson - - -
30HIS HONOUR: You've made, it seems to me, the point,
31 repetitively, unless Mr Devries, you wish to respond, I

2Cressy
1 do not see any need for you or Mr Turnbull to respond.
2MR DEVRIES: Can I just say that the allegations, again, that
3 have been made are denied.
4HIS HONOUR: Yes.
5MR DEVRIES: As for – and I need to put this on the record, I'm
6 satisfied that my client has an arguable case. It will
7 be tested, with respect, and I understand his - - -
8HIS HONOUR: Precisely.
9MR DEVRIES: But – and I have nothing to - - -
10HIS HONOUR: No.
11MR DEVRIES: - - - the caveat.
12HIS HONOUR: Thank you, Mr Devries.
13(RULING FOLLOWS)
14

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1.LL:SK 10/02/09 FTR:9-10E 98 RULING

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1
1.LL:SK 10/02/09 FTR:9-10E 99 RULING

2Cressy
1HIS HONOUR: That leaves the subpoena to Mr Hanlon, do you call
2 that – yes?
3MS SOFRONIOU: If it's called, Your Honour, I have an
4 application to make in respect of it.
5HIS HONOUR: Yes.
6MS SOFRONIOU: In light of Mr Johnson's speeches, it's apparent
7 that the purpose of calling Mr Hanlon is to address those
8 issues that he has attempted to set out in the
9 Alternative Proceedings 9623 of 2008.
10HIS HONOUR: Yes.
11MS SOFRONIOU: Your Honour has invited him at the close of the
12 proceedings on 11 and 12 December to say what Mr Hanlon
13 was being called for in his case. Whether Mr Johnson
14 likes it or not, he has been on the unfavourable side of
15 a ruling in the way in which Your Honour reads the scope
16 of the counterclaim, and it doesn't take Oxford Union
17 type debate speeches and reiterating the point to change,
18 in my submission, that ruling.
19HIS HONOUR: No.
20MS SOFRONIOU: Mr Johnson hasn't shown any willingness
21 whatsoever to confine himself to the issues in the
22 pleadings, and that would have been a matter of,
23 probably, having Mr Hanlon called, objecting to each
24 question, and going in the normal way. What concerns me
25 is Mr Johnson hasn't stopped there, he's attempted to
26 institute separate proceedings, which Mr Hanlon and
27 Harwood Andrews are once again parties. Now, I should
28 say I reserve my rights in those proceedings to say that
29 in fact there are all kinds of estoppels that stop him
30 from running him there.
31HIS HONOUR: Yes.
1.LL:SK 10/02/09 FTR:9-10E 100 DISCUSSION

2Cressy
1MS SOFRONIOU: However, Your Honour has offered him the
2 opportunity, I think, at p.574 of the transcript to amend
3 this case, he hasn't done so. Indeed, he would need to
4 pay costs in order to do so.
5HIS HONOUR: Yes.
6MS SOFRONIOU: What he's tried to do instead is be quite
7 blithely ignoring what Your Honour says about this and
8 wants to call Mr Hanlon to answer questions which, if
9 they were allowed to be – to go ahead, would be matters
10 that he's raised in Proceedings 9623 of 2008. That's an
11 improper use of a subpoena in these proceedings. Indeed,
12 in my submission, it has another purpose, which is the
13 venting, as it were, of his insistence that he gets to
14 call Mr Hanlon in the box and put the things that are the
15 matters of 9623 of 2008, whether it adduces evidence or
16 not, in the same manner in which he's made the speeches
17 to Your Honour.
18 I don't want to debate legal history for legal
19 history with Mr Johnson, but he might also be advised to
20 look in the period between the periods of legal history
21 that he's mentioned, and I submit to Your Honour that the
22 Star Chamber system that persisted in Tudor times is no
23 longer instituted in the common law, and that the
24 reversal of onus that says that silence amounts to fraud
25 is not part of the common law. He bears an onus as a
26 counterclaimant.
27 He's insisted that he wants, nevertheless, to make
28 these assertions, and in my submission, if he wants to do
29 it, let him try and do it where he's pleaded it in 2623
30 of 2008, and take its chances there, but he hasn't
31 indicated to Your Honour that the use of the time in

2Cressy
1 these proceedings is going to be assisted by calling him
2 here, and on that basis, Your Honour, it goes further
3 than the – we'll let him be called and we'll object, if
4 this is all the way of delaying the anxiety, the
5 understandable anxiety that I know he feels about closing
6 the case, in my submission, the subpoena shouldn't be
7 used for that purpose.
8 I have a no case application as it is, Your Honour
9 will hear that on the basis of the proper onus where it
10 lies. Should that fail, Mr Johnson will have his chances
11 to question Mr Hanlon. But my main point is that in any
12 event, what he says he does want him for is for the
13 purposes of the other proceedings. May it please
14 the - - -
15HIS HONOUR: Well, I follow that. Mr Johnson, you have now
16 compelled Mr Hanlon to give evidence in this case. As I
17 read s.24 of the Evidence Act, Mr Hanlon is a competent
18 and compellable witness, but only to give evidence in
19 relation to the issues in this case. Those issues,
20 whether you like it not, I have ruled are those contained
21 in the pleadings in this case. You have deliberately,
22 intentionally, and repetitively sought to disregard, and
23 indeed, disobey that ruling, and you have done so in
24 circumstances where it has been clear that you have done
25 it for, it seems to me, an ulterior purpose, to try to
26 derail this proceeding, and I will not permit that to
27 happen.
28 I will permit you to call the subpoena and call
29 Mr Hanlon, but you will be confined to asking questions
30 solely in relation to the issues in this case. If you
31 divert from that, then I will overrule the objection – I

2Cressy
1 will allow any objection and rule the evidence
2 inadmissible. Do you follow that?
3MR JOHNSON: I - - -
4HIS HONOUR: Do you understand what I'm saying?
5MR JOHNSON: - - - follow what you're saying, Your Honour.
6HIS HONOUR: You will – if you continually, in your questions,
7 go beyond the issues in this case, then I will not permit
8 you to continue the evidence-in-chief of Mr Hanlon. Do
9 you understand that?
10MR JOHNSON: I understand that, Your Honour.
11HIS HONOUR: Mr Johnson, intellectually, you have shown that
12 when you want to, and when it suits you, you can
13 understand the issues in this case and you can focus on
14 them, and you have done that successfully with a number
15 of witnesses and, indeed, in parts of your own evidence.
16 You will bring the same discipline to bear when you call
17 Mr Hanlon to give evidence. If you continue to
18 repeatedly disobey that, then I will see you as simply
19 standing in deliberate disobedience of my ruling, and
20 indeed, you'll be coming very close to being in contempt
21 of my court, because you'll be disobeying an order by me.
22 You will not ask any questions other than those
23 relating to the issues in this case. Now, you are on
24 strict warning, if you disobey that, at the very least,
25 I'll simply cease the evidence-in-chief. I also caution
26 you, although I have already told you this on a number of
27 occasions, and Ms Sofroniou reminded you this morning
28 before we broke, that you are confined to evidence – to
29 non-leading questions, do you understand that, and that
30 Ms Sofroniou does have a right of cross-examination of
31 Mr Hanlon, because he's being called in your case, and

2Cressy
1 Mr Devries also has such a right.
2MR DEVRIES: Yes, and the other matter, Your Honour, is I'm
3 instructed to inform Your Honour that our client does not
4 waive her - - -
5HIS HONOUR: Privilege?
6MR DEVRIES: Privilege, in respect of the evidence that - - -
7HIS HONOUR: I understand that. So the numbers of matters you
8 may wish to ask about may be the subject of an objection
9 on behalf of Ms Cressy on the grounds of legal
10 professional privilege. Now, having both cautioned you
11 and assisted you by advising you of those facts, you now
12 call Mr Hanlon?
13MR JOHNSON: Your Honour, before I do, may I respond briefly to
14 some of the comments by Ms Sofroniou and the directions
15 you've given me, Your Honour. Firstly, this is my 11th
16 day of - - -
17HIS HONOUR: No, you've said that. Mr Johnson, you have
18 speechified the whole day, you call the subpoena now or
19 else I will excuse Mr Hanlon.
20MR JOHNSON: I cannot guarantee the questions I ask will not,
21 to your ears, appear to be leading. I shall do my
22 best - - -
23HIS HONOUR: You will do your best, and in fact, you will do
24 very well in the five witnesses you've called so far in
25 that regard. Mr Hanlon, would you go into the witness
26 box, please?
27<DAVID WILLIAM HANLON, called:
28VOICE: Mr Johnson, could you stop - - -
29MR JOHNSON: Sorry, Mr Richards.
30HIS HONOUR: Yes, start again, please. Mr Johnson, you should
31 know better than that.

2Cressy
1<DAVID WILLIAM HANLON, sworn and examined:
2HIS HONOUR: Thank you, now, Mr Hanlon, you may be seated?
3 ---Thank you, Your Honour.
4Thanks. Mr Johnson? At least I'll go through the formalities,
5 your full name is David William Hanlon?---That's right.
6You're a barrister and solicitor of this court?---I am, Your
7 Honour.
8How long have you been in practice?---Twenty-eight years,
9 roughly.
10You're an employee of Harwood Andrews?---Yes, Your Honour.
11And you are which defendant to one of the defendants to the
12 counterclaim?---I am, Your Honour.
13OK, and your professional address is?---10 Watton Street,
14 Werribee.
15Thank you. Mr Johnson?
16MR JOHNSON: Thank you, Your Honour. Thank you, Your Honour.
17 I intend to produce my questions out of the court book
18 that was prepared by the solicitors for the 2nd and 3rd
19 defendants by counterclaim, it was handed to Your Honour
20 and made available to me on the first day of the trial.
21 I believe that will assist my questions to be in
22 respect of documents that had some relevance given that
23 they're in the court book prepared by - - -
24HIS HONOUR: Mr Johnson, just proceed and ask Mr Hanlon some
25 questions.
26MR JOHNSON: Thank you Your Honour. Mr Hanlon, can I refer you
27 to the first of the two caveats that your firm placed
28 against my property, if it makes you feel better I will
29 say the property at 166 Queen Street, Altona. I'm just
30 looking for a copy of that instrument in the court book
31 that your lawyers prepared Mt Hanlon.

2Cressy
1HIS HONOUR: What are you looking for, the first caveat that
2 Harwood Andrews lodged?
3MR JOHNSON: Yes, dated about May 2007, it doesn't seem to be
4 in the court book Your Honour.
5HIS HONOUR: It is also an exhibit in this proceeding.
6MR JOHNSON: Mr Turnbull informs me it's at p.16, yes, it's at
7 p.16 of the court book. No it's not actually, that's not
8 a caveat in favour of - - -
9HIS HONOUR: I think it's Exhibit 30 is it not?
10MR JOHNSON: Yes - I don't know Your Honour, I don't have a
11 complete list of exhibits.
12HIS HONOUR: What's the number of it?
13MR JOHNSON: Caveat No.AF066328D, it's p.19 of the 2nd and 3rd
14 defendants' counterclaim court book Your Honour.
15HIS HONOUR: Exhibit 22.
16MR JOHNSON: Thank you Your Honour. Mr Hanlon, do you
17 recognise this instrument?---Yes I do.
18Is that your signature?---Yes it is.
19The date of the instrument please, would you read that to His
20 Honour?---9 May 2007 I think.
21The grounds of the claim, would you read that out also?---An
22 unregistered instrument of charge bearing date 6 May 2007
23 given by Pippin Cressy as chargee to Harwood Andrews Pty
24 Ltd, ACN 075858 I think 034 as chargee.
25I believe it says does not, "Given by Pippin Cressy as
26 charger"?---As charger, yes that's right, yes.
27The caveator, would you read to His Honour the caveator please?
28 ---Harwood Andrews Pty Ltd.
29In late October/early November I sent you a number of letters
30 regarding the plaintiff's caveat over six of my
31 properties did I not?---I recall there were letters

2Cressy
1 received from you.
2I believe some of these are in the court book, perhaps I can
3 identify and have them shown to the witness Your Honour.
4HIS HONOUR: Some have been exhibited, which one do you refer
5 to?
6MR JOHNSON: I'm at a disadvantage because I don't have a list
7 of index.
8HIS HONOUR: What date?
9MR JOHNSON: It was early November Your Honour, it had attached
10 to it copies of the contract particulars page of when I
11 purchased the property at 912 Gibson Street, Caulfield
12 East, and it had a bank statement showing that the bank
13 fully funded that purchase and indeed - - -
14HIS HONOUR: Mr Johnson, it doesn't matter what it says, you
15 obtain the document and show it to Mr Hanlon, we can then
16 proceed.
17MR JOHNSON: Thank you Your Honour.
18HIS HONOUR: He's your witness.
19MR JOHNSON: It is an exhibit, if I had a list of the exhibits
20 I could identify that really quickly. Here we go, it's
21 in the court book of the 2nd and 3rd defendants, it's a
22 letter type date of 26 October 2007.
23HIS HONOUR: That one is Exhibit 32.
24MR JOHNSON: Thank you Your Honour. It contains the
25 information that I just described to Your Honour, perhaps
26 Mr Hanlon could you have a look at the letter?
27HIS HONOUR: Do you wish Mr Hanlon to see that document?
28MR JOHNSON: You see that letter Mr Hanlon?---I'm not sure this
29 is the same letter Your Honour, this is a letter dated
30 26 October, it relates to Queen Street, not to - - -
31It sounds like it's not the same letter Your Honour?

2Cressy
1 ---- - -Gibson Street.
2This is at p.48 of the 2nd and 3rd defendants by counterclaim
3 court book Your Honour, p.48 of that book, it certainly
4 is an exhibit also Your Honour, I'm just not sure of the
5 number for it.
6HIS HONOUR: Is that letter dated 29 October is it?
7MR JOHNSON: Yes, typed at 26 October but the 26th has been
8 hand changed - - -
9HIS HONOUR: I might be wrong, I don't know that that is yet in
10 evidence. But you may nonetheless show it to the
11 witness.
12MR JOHNSON: Can we have it added as evidence?
13HIS HONOUR: Show it to the witness, if he identifies it you
14 can tender it.
15MR JOHNSON: Thank you Your Honour. The only copy I have to
16 hand is - - -
17MS SOFRONIOU: If it helps Your Honour, I think it's Exhibit A.
18HIS HONOUR: It is in is it? Yes I apologise, it's Exhibit A,
19 so it's the first exhibit.
20MR JOHNSON: Thank you Ms Sofroniou, I would have thought it
21 was one of the first exhibits in all this Your Honour,
22 thank you.
23HIS HONOUR: Thanks Ms Sofroniou, yes.
24MR JOHNSON: If the witness could see Exhibit A please
25 Mr Richards. Mr Hanlon, the letter is in both facsimile
26 and there is a heading is there not, it says, "Urgent
27 communication"?---Yes.
28"Privacy Act confidentiality applies"?---Yes, yes.
29Would you mind reading the first two paragraphs for me?
30HIS HONOUR: He can just read them to himself can't he?
31MR JOHNSON: I would like them read to the court if

2Cressy
1 that's appropriate.
2HIS HONOUR: I can read them.
3MR JOHNSON: Sorry Your Honour?
4HIS HONOUR: I can read them, what paragraphs are you referring
5 him to?
6MR JOHNSON: Perhaps I can read through, "I refer to my letter
7 to you of 25 October 2007 in respect of each of the above
8 caveats' - there's a full list of my properties and the
9 heading Your Honour - "which you have lodged against my
10 six above named properties for your client and for your
11 company respectively." The heading, "Gibson Street
12 removal of caveat". "In my previous letter I informed
13 you that these are vexatious caveats. This letter is
14 concerned with one of these properties, 913 Gibson
15 Street, Caulfield East" - Gibson Street defined in
16 brackets - "which is affected by your client's caveat
17 which I require your client to remove forthwith." Then
18 the next paragraph does it not say, "Gibson Street is
19 under contract of sale and is pass due" - sorry no it
20 doesn't say, it says, "Gibson Street is under contract
21 and is pass due", an interesting Freudian slip Your
22 Honour. "Gibson Street is under contract and is pass
23 due", does it not say that Mr Hanlon?---It does say that.
24Can I take you further in that letter I've described the
25 funding which I mentioned in introducing the exhibits
26 Your Honour, the attachments, there's a document headed
27 p.2, that looks like it's out of a contract of sale, a
28 contract of purchase doesn't it Mr Hanlon?
29MS SOFRONIOU: I object Your Honour, I've been waiting to give
30 my friend a bit of time but I'd ask him to stop leading
31 the witness.

2Cressy
1HIS HONOUR: Yes, ask the question again in a non leading way.
2MR JOHNSON: Your Honour, I'm sorry Mr Hanlon forgive me, as I
3 say it's my 11th day as an advocate, after 20 years of
4 continuous membership of the Law Institute. The third
5 letter in there, the first attachment after the two page
6 letter, could you read the heading on that page please?
7 ---I don't have that Your Honour.
8HIS HONOUR: I don't think that's part of the exhibit.
9MR JOHNSON: We don't have the full copy of the facsimile as
10 the exhibit. Your Honour, could we have this put in as
11 an additional exhibit so that Mr Hanlon can see the whole
12 of the facsimile.
13HIS HONOUR: What are you showing to Mr Hanlon?
14MR JOHNSON: It's a six page facsimile of 29 October - - -
15HIS HONOUR: So you say that there were attachments to it were
16 there?
17MR JOHNSON: Yes Your Honour.
18HIS HONOUR: In the court book there appears to be attachments
19 so weren't - - -
20MR JOHNSON: There's a facsimile - - -
21HIS HONOUR: Just a moment, there were no attachments to
22 Exhibit A but there are four - you say there were four
23 pages of attachment - - -
24MR JOHNSON: Yes, this particular copy that the 2nd and 3rd
25 defendants have included in their court book, it shows
26 that it was sent form a fax - - -
27HIS HONOUR: Just a minute, is it common ground that there were
28 four pages of attachments as set out at p.50, 51, 52 -
29 three pages of attachments I make it. So we can add them
30 to Exhibit A, Mr Devries and Ms Sofroniou, is that right?
31MS SOFRONIOU: I have a recollection that maybe wrong that

2Cressy
1 Mr Johnson put in an exhibit that completed it.
2MR DEVRIES: Number 15 I believe Your Honour.
3HIS HONOUR: Which is (indistinct).
4MS SOFRONIOU: Yes Your Honour, that's how it's described.
5HIS HONOUR: Thank you, yes, Mr Johnson, I'm sorry, it's
6 actually Exhibit 15 has all the attachments, so perhaps
7 that could be substituted for Exhibit A then that will
8 assist you.
9MS SOFRONIOU: Sorry Your Honour, I overlooked that bit.
10HIS HONOUR: No, I did too, thanks Ms Sofroniou, Ms Sofroniou
11 is assisting you there, and Exhibit A can be redeemed
12 from the witness so they don't get lost.
13MR JOHNSON: Is there some way Your Honour, to avoid future
14 confusion by linking those two exhibits.
15HIS HONOUR: No, we will just retain them and we will continue.
16 Now you want to ask your witness about Exhibit 15 and you
17 had I think pointed him to what appears to be p.2 of a
18 document with a price deposit and balance, is that the
19 document you're referring to?
21HIS HONOUR: Right, now what question do you wish to ask
22 Mr Hanlon in relation to that.
23MR JOHNSON: Mr Hanlon, could you read the day of sale at the
24 bottom of that page where your signature is on?---3 June
25 2005.
26The date of this letter, would you remind His Honour please?
27 ---29 October 2007.
28So when the letter says Gibson Street is under contract and is
29 pass due, this p.2 attachment couldn't conceivably be a
30 copy?
31MS SOFRONIOU: I object Your Honour, that's what we call cross-

2Cressy
1 examination.
2HIS HONOUR: I agree with that.
3MR JOHNSON: Your Honour, how may I put the question.
4HIS HONOUR: Disallow the question. Ask your next question.
5MR JOHNSON: How may I put the question, I want to draw
6 attention to the fact that this isn't any extract of the
7 contract I refer to but do not provide a copy of?
8MS SOFRONIOU: If I may Your Honour.
9MR JOHNSON: Well how do I do this?
10MS SOFRONIOU: I put Mr Johnson on notice that by choosing to
11 call Mr Hanlon, this is what he can't do.
12HIS HONOUR: I follow that.
13MS SOFRONIOU: And I just put him on notice that I will object
14 every time he does that because I've in full fairness
15 warned him that - - -
16HIS HONOUR: It was an argumentative question anyway, the
17 document speaks for itself, you have a document here
18 dated 3 June that's attached to a letter of October, now
19 what do you wish to ask this witness?
20MR JOHNSON: I think from Your Honour's instruction then I can
21 perhaps make the date references in submissions, I don't
22 need to put it - - -
23HIS HONOUR: Yes, it sounds like what you're putting is not
24 only cross-examination but argument.
25MR JOHNSON: Thank you Your Honour, I'm doing my best - - -
26HIS HONOUR: You're here to elicit evidence.
27MR JOHNSON: - - - the rules of this process. Also with that
28 could you explain what the following document is, could
29 you describe the next document please, the nest
30 attachment Mr Hanlon?---I - no I can't, um - - -
31It's the one headed, "Rebate"?---I don't understand the

2Cressy
1 question Your Honour.
2HIS HONOUR: No I don't either. You sent the document to
3 Mr Hanlon, his understanding or explanation of it, how is
4 that relevant?
5MR JOHNSON: Understandable, understandable. Excuse me Your
6 Honour, I think the process is the same, I will deal with
7 it in submissions. The last page of the six page
8 facsimile Mr Hanlon, what information does that contain?
9MS SOFRONIOU: I object as to relevance Your Honour.
10MR JOHNSON: It speaks for itself.
11HIS HONOUR: The document speaks for itself.
12MR JOHNSON: All right, perhaps I need to go on. Mr Hanlon,
13 this was a letter from me requesting via you as the
14 solicitor for the plaintiff that that caveat on Gibson
15 Street be removed?
16MS SOFRONIOU: I object Your Honour, it's not a question.
17HIS HONOUR: It's a lead up Ms Sofroniou, I will allow the
18 question, it self evidently is.
19MR JOHNSON: Thank you Your Honour, I do need a little bit
20 of - - -
21HIS HONOUR: I follow that.
22MR JOHNSON: Thank you Your Honour. Was that caveat removed
23 Mr Hanlon?---Yes it was.
24Is there anything in this letter or any other letters I sent to
25 you requesting you to remove your firm's caveat over
26 any of my properties?---As I recall the only caveat we
27 had initially lodged was over Queen Street and
28 not the others.
29Yes, so I think in this letter where I ask you to remove any
30 caveat that you hold is - - -
31HIS HONOUR: That's a leading question.

2Cressy
1MR JOHNSON: I thought I was just summarising what had been
2 asked and answered previously Your Honour. Mr Hanlon,
3 that caveat that we discussed a moment earlier, is it
4 p.18 of the court book, this should be a simple yes
5 or no answer.
6HIS HONOUR: This is a Harwood Andrews caveat is it?
7MR JOHNSON: Yes the one dated - - -
8HIS HONOUR: Exhibit 22.
9MR JOHNSON: Thank you Your Honour, Exhibit 22, p.19 of the 2nd
10 and 3rd defendants' court book, the one dated 9 May 2007.
11 I believe this is a question with a simple yes or no
12 answer. Did your firm remove that caveat?---No.
13I will ask the question again. Was that caveat withdrawn from
14 the title of that property?---Not by Harwood Andrews.
15I will ask the question again, was that caveat removed from the
16 title of that property?
17MR DEVRIES: How can he answer this question Your Honour, if he
18 or his firm didn't do it.
19HIS HONOUR: Well me may know, Mr Hanlon may have knowledge.
20MR DEVRIES: With respect Your Honour, that would be hearsay.
21HIS HONOUR: It depends how he had that knowledge Mr Devries.
22MR DEVRIES: As Your Honour pleases.
23MR JOHNSON: Mr Hanlon, can I refer you to another instrument
24 of caveat, it's at p.56 of the court book of the 2nd and
25 3rd defendants by counterclaim. It too will be an
26 exhibit Your Honour, excuse me for not having the number.
27 If either of my colleagues at the Bar table has a list of
28 exhibits or perhaps Mr Richards has one, I haven't had
29 time to produce one myself but it would assist if one of
30 the other lawyers involved in the proceeding would
31 perhaps make their list available to me, that would speed

2Cressy
1 things up considerably.
2HIS HONOUR: Yes, well I can have a copy of the exhibit list
3 made available to you after lunch.
4MR JOHNSON: I'm indebted Your Honour.
5HIS HONOUR: Or certainly an exhibit list available to you.
6MR JOHNSON: It's a Caveat No.AF709814N dated 6 March 08 Your
7 Honour. I would actually like Mr Hanlon to have both
8 those caveat instruments together side by side?
9HIS HONOUR: I don't know if that caveat is yet in evidence.
10MS SOFRONIOU: Exhibit 30.
11HIS HONOUR: That's 30 is it? Yes.
12MR JOHNSON: Mr Hanlon, could you point out to the court please
13 what are the differences apparent on the face of the
14 younger of the two caveats compared to the original
15 caveat AF066328D - - -
16MS SOFRONIOU: I object Your Honour, it's not an observation
17 exercise.
19MS SOFRONIOU: If there are any differences between the
20 documents that the court is concerned - - -
21HIS HONOUR: Agree with that, the question is irrelevant, I
22 disallow it.
23MR JOHNSON: Your Honour I don't believe this is leading the
24 witness but I'm not sure how to put the question.
25HIS HONOUR: Ask the question and we will see how we go.
26MR JOHNSON: Mr Hanlon, looking on these two instruments, and I
27 realise you need to take your time to do that, are there
28 any differences between the land description, the
29 caveator description, the estate or interest claimed, the
30 grounds of claim, the extent of prohibition recorded on
31 each of the two instruments?

2Cressy
1MS SOFRONIOU: I object Your Honour.
2HIS HONOUR: It's not really for Mr Hanlon to in the witness
3 box compare them. Do you say they're the same or
4 different Mr Johnson?
5MR JOHNSON: The point I'm trying to draw out is that they are
6 identical in every way except the handwritten dates Your
7 Honour.
8HIS HONOUR: All right, well Mr Hanlon telling us that won't
9 advance the evidence one way or the other. Do you want
10 to ask him a question in relation to the fact that
11 they're identical?
12MR JOHNSON: Mr Hanlon, you're aware of s.91(4) of the Transfer
13 of Land Act in Victoria that says that once a caveat has
14 been removed it is prohibited to register an identical
15 instrument in respect of the identical grounds of claim
16 in respect of that same land on behalf of the same
17 caveator?
18MS SOFRONIOU: I object Your Honour.
19MR JOHNSON: Are you aware of s.91(4) of the Transfer of Land
20 Act?
21MS SOFRONIOU: I object Your Honour, that is cross-examination,
22 it doesn't truly capture the wording of the legislation.
23HIS HONOUR: If he wishes to draw the witness - I will allow
24 him to draw the witness's attention to the section and
25 ask a question in relation to it, but the section will
26 need to be put properly.
27MS SOFRONIOU: Thank you Your Honour.
28HIS HONOUR: I don't have my Transfer of Land Act here.
29MS SOFRONIOU: Nor do I Your Honour.
30MR JOHNSON: I think I have it somewhere. Here we go, I'm
31 impressed with myself here, s.91.

2Cressy
1HIS HONOUR: Section 91(4).
2MR JOHNSON: I may have quoted the wrong section Your Honour,
3 no it's right, s.91(4).
4HIS HONOUR: You may read that to Mr Hanlon and then ask him a
5 relevant question. Mr Hanlon giving evidence today is
6 not a test of his current knowledge of the law but you
7 may read it to him and ask him a question relevant to the
8 issues which are in dispute on the pleadings.
9MR JOHNSON: Thank you, Your Honour. Mr Hanlon, s.91(4) of the
10 Transfer of Land Act 1958, "A caveat that has lapsed or
11 been removed shall not be renewed by or on behalf of the
12 same person in respect of the same interest". Are you
13 aware of such a provision in the Transfer of Land Act?
14 ---Well, you've just read it to me, yes.
15Mr Hanlon, why did you sign and procure the registration of the
16 Caveat AF709814N and dated 6 March 2008?---That was done
17 to protect the costs interest of Harwood Andrews under
18 the charge.
19Did you give any consideration in registering that caveat,
20 whether it was lawful or unlawful to do it?
21MS SOFRONIOU: I object, Your Honour, I think that's a
22 challenging cross-examination question, in my submission.
23HIS HONOUR: I don't think it's really cross-examination,
24 I'm not sure it's relevant, but I'll allow him to answer
25 the question.
26MR JOHNSON: If I may address the point of relevance in - - -
27HIS HONOUR: No, I've ruled in your favour.
29HIS HONOUR: You might talk me out of it.
30MR JOHNSON: Thank you, Your Honour?---Consideration was given,
31 yes, Your Honour.

2Cressy
1Sorry, Mr Hanlon, I didn't quite understand the answer,
2 consideration was given as to whether the
3 Caveat AF709814N was a lawful or unlawful instrument, is
4 that what you answered - - -?---No, consideration was
5 given as to whether the caveat could be lodged or should
6 be lodged.
7As part of that considering, did you, Mr Hanlon, who signed it
8 and presumably procured the registration of that
9 Caveat AF709814N give consideration to s.91(4) of the
10 Transfer of Land Act, which prohibits registration of a
11 caveat that has lapsed or been removed, prohibits it
12 being renewed by or on behalf of the same person in
13 respect of the same interest?
14MS SOFRONIOU: I object, Your Honour. Not only is it cross-
15 examination, arguably, by putting that the invalidity but
16 the contradictory action, but I don't read in the
17 pleadings - - -
18HIS HONOUR: No.
19MS SOFRONIOU: - - - negligence, action, or an invalidity of
20 caveat action. I've given my friend some leeway - - -
21HIS HONOUR: Well, I agree with that - - -
22MS SOFRONIOU: - - - leads to something - - -
23HIS HONOUR: This caveat is not referred to (indistinct) as I
24 recollect - - -
25MS SOFRONIOU: Correct, Your Honour.
26HIS HONOUR: - - - in the counterclaim. I don't think it's
27 cross-examination, but I agree that the question is
28 irrelevant.
29MS SOFRONIOU: If it please the court.
30MR JOHNSON: Your Honour, I wish to address the issue of
31 relevance (indistinct) have a look at the counterclaim

2Cressy
1 (indistinct) go back to the paragraph.
2MS SOFRONIOU: I think the counterclaim might predate - - -
3MR JOHNSON: Of course, it does, it predates, that's exactly
4 the issue, isn't it, Your Honour? These pleadings were
5 not settled by a litigator, a person with the skill in
6 pleadings. I myself was very nervous about making
7 amendments, because I would have thought that any
8 amendments that I made still needed to be looked at by a
9 proper litigation lawyer. That is the reason that this
10 caveat is not referred to in the pleadings. It again
11 shows the fact that we rushed to trial at this
12 proceedings without proper discovery, interrogatories,
13 and settling (indistinct). The point that I wish to make
14 I can perhaps make in submissions, Your Honour, but it
15 strikes me as misconduct by a solicitor - - -
16HIS HONOUR: Well, you're now making – you are now making a
17 submission. I have cautioned you about the questions you
18 ask do not transgress by trying to make speeches. You
19 ask Mr Hanlon questions relating to the issues in the
20 trial.
21MR JOHNSON: Your Honour, I apologise, I did not recall - - -
22HIS HONOUR: No, well, just continue.
23MR JOHNSON: - - - the counterclaim did not refer to this
24 caveat because the counterclaim is so pre-nascent, so
25 much in need of work. I did substantial that work in the
26 other pleadings that I prepared.
27HIS HONOUR: All right.
28MR JOHNSON: So in my mind, this is one proceeding - - -
29HIS HONOUR: Well, I'm not interested in your mental processes,
30 you simply stick to the issues in this case.
31MR JOHNSON: Your Honour, I'm concerned, because the

2Cressy
1 application I drew up and was listed for hearing before
2 Master Evans on the day before this trial started, I put
3 to Your Honour on submissions on 2 December that that
4 application should be heard and dealt with. It wasn't,
5 it was an application (indistinct) on a daily basis,
6 given the date of which the other counterclaim issued,
7 and enormous difficulty's been created, Your Honour,
8 because of the fact that there are two pleadings on the
9 same issues. One pre-nascent back to February last year,
10 the other one - - -
11HIS HONOUR: Mr Johnson, if you are having another go at trying
12 to join the other proceeding issued by a trust company
13 against you, which you counterclaimed against many, many
14 people, in this proceeding - - -
15MR JOHNSON: All – all of the other parties - - -
16HIS HONOUR: I have already overruled that, I have warned you
17 that you must not disobey my rulings, parties are
18 expected to abide by the rulings I make, because this
19 trial, which has become unworkable due to your
20 misconduct, will become even more unworkable. Now,
21 continue on on the plead issues that are the pleadings in
22 this case. You are under warning that you have to do
23 that if Mr Hanlon is to remain in the witness box. If I
24 perceive that you are simply using the subpoena you
25 issued to him today to try to enter into the other case,
26 then you're abusing the process by having that subpoena
27 directed to Mr Hanlon, I'll immediately set it aside.
28 Bear that steadily in mind.
29MR JOHNSON: Your Honour, the other case is this case, and if I
30 had conceivably dreamed that the two pleadings would be
31 separated rather than combined, I would have rushed out

2Cressy
1 before 2 December and holus bolus replaced the - - -
2HIS HONOUR: Mr Johnson - - -
3MR JOHNSON: - - - the defendant's counterclaim - - -
4HIS HONOUR: Mr Johnson, you will continue on now, I have
5 warned you, you've wasted nearly all of the whole of this
6 morning - - -
7MR JOHNSON: Your Honour, a major travesty is evolving - I need
8 to regroup because I now realise that this - - -
9HIS HONOUR: You do not need to regroup, you are intellectually
10 well equipped, you have understood the issues, I have
11 explained them to you, they are in black and white, you
12 will stick to them and you will ask Mr Hanlon questions
13 relating to them. Continue.
14MR JOHNSON: Mr Hanlon, after the first of these caveats, the
15 one on page - the one dated May 2007.
16HIS HONOUR: That's on p.19 of the court book, Exhibit 22.
17MR JOHNSON: Thank you Your Honour, I have my pages now back in
18 order. Did you receive a notice from the Registrar of
19 Titles - this is such a travesty Your Honour. Did you
20 receive a notice from the Registrar of Titles under s.89A
21 or any other section of the Transfer of Land Act saying
22 that the legitimacy of your caveat had been questioned
23 and that you had to substantiate the caveat claims both
24 by your client and by your law firm company?---I - I
25 don't recall, may have.
26Your Honour, I am labouring with a lack of knowledge and skill,
27 little alone being captured in these pleadings, where
28 it's patently obvious they've not been drafted by a
29 litigation lawyer or updated of things that happened
30 after 19 February for the reasons I've explained in some
31 length yesterday and today. Your Honour, I need some

2Cressy
1 directions from you Your Honour, given my lack of
2 experience. What I want to join up the dots with if I
3 may put it that way Your Honour, is that the next step
4 that happened after these caveats were lodged, the
5 plaintiff removed the caveat, the plaintiff's caveat was
6 removed over my Caulfield property. I then made the
7 application under 89A and this is background to you Your
8 Honour, so you might be able to lend me some assistance.
9HIS HONOUR: Remind me again, this is a caveat dated 9 May 2007
10 lodged by Harwood Andrews.
12HIS HONOUR: I forget, is that Queen Street or is it over
13 Gibson Street.
14MR JOHNSON: No that was over Queen Street Your Honour.
15HIS HONOUR: Queen Street, right.
16MR JOHNSON: Yes that's right, so - - -
17HIS HONOUR: And that was withdrawn in November.
18MR JOHNSON: Yes Your Honour. The background to that was I
19 wrote a number of letters in October/November demanding
20 that they be withdrawn, explaining - - -
21HIS HONOUR: All right, that was withdrawn, we don't need the
22 background, yes. What's your point?
23MR JOHNSON: Your Honour, my point is that when Harwood Andrews
24 removed the caveat on - both of these caveats were
25 removed without any notice to me that they'd been done, I
26 saw that the caveat was drawn and it gave me a little bit
27 of heart that Harwood Andres were - - -
28MS SOFRONIOU: I object to this Your Honour.
29HIS HONOUR: This is just a speech.
30MR JOHNSON: This is to give background Your Honour, to help me
31 with directions so that I can properly question within

2Cressy
1 the process. I took heart that Harwood Andrews had
2 dropped their caveat on Queen Street, they were listening
3 to me.
4MS SOFRONIOU: I object to this Your Honour, it contains a
5 version of events that is not background for Your Honour
6 but is argument.
8MS SOFRONIOU: It's subject to submission Your Honour.
9MR JOHNSON: I think I've found a way forward Your Honour. I
10 have here a letter dated 5 November 2007 that I wrote to
11 Mr Hanlon, I'd like to tender that.
12HIS HONOUR: Yes, will you show it to Mr Hanlon, if he
13 identifies it it maybe tendered.
15MS SOFRONIOU: It might be Exhibit P Your Honour.
16HIS HONOUR: P do you think it is?
17MS SOFRONIOU: I haven't seen it Your Honour but there's
18 something that answers that description.
19HIS HONOUR: Yes there is, letter from defendant Mr Hanlon
20 5 November, Exhibit P is a two page letter?---This is not
21 two pages, this is ten pages Your Honour.
22Ten pages, of the same letter though - - -?---I don't know Your
23 Honour.
24So that's a different document to - - -?---I don't - don't know
25 Your Honour. It's a different letter Your Honour.
26It's a different letter.
27MS SOFRONIOU: Sorry Your Honour?---Yes, it's a different
28 letter Your Honour.
29HIS HONOUR: Thanks Mr Hanlon, now are you showing Mr Hanlon
30 another letter dated 5 November?

2Cressy
1HIS HONOUR: And you wish to tender that do you?
2MR JOHNSON: Yes I do Your Honour.
3HIS HONOUR: Do you identify it, did you receive that letter?
4 ---Um, Your Honour, so many letters came in, I can't
5 recall. It may have, I can't recall. There are
6 paragraphs in here that ring true Your Honour.
7Ring a bell as you've read it. I think on that basis I will
8 receive it as an exhibit Ms Sofroniou.
9MS SOFRONIOU: Thank you Your Honour, if I could see it in due
10 course.
11HIS HONOUR: Yes, perhaps a copy could first be shown to
12 Ms Sofroniou, thanks.
13MR JOHNSON: I might while Ms Sofroniou is reading Your Honour,
14 just indicate that that is the only copy I have and I do
15 not have funds to do any photocopying, so if it would be
16 possible for Mr Richards to make copies during the
17 luncheon I would be grateful.
18HIS HONOUR: If he has time he will.
20HIS HONOUR: Mr Richards is a very busy man.
21MS SOFRONIOU: Thank you Your Honour, if that could be subject
22 to Your Honour's usual ruling that these are accepted as
23 assertions and not for the truth - - -
24HIS HONOUR: Truth and contents, I follow.
25MS SOFRONIOU: If it please the court, Your Honour.
26HIS HONOUR: Thank you. Exhibit 63 will be the facsimile
27 letter by the defendant to Mr David Hanlon dated
28 5 November 2007. You've attached to that a letter of
29 31 October, is that part of that?
30MS SOFRONIOU: I notice, Your Honour, I was looking myself,
31 there's a - - -

2Cressy
1HIS HONOUR: And 26 October?
2MS SOFRONIOU: - - - reference to copies being attached.
3HIS HONOUR: I see, and - - -
4MS SOFRONIOU: In the body of the letter, and I assumed, since
5 they're all part of the same facsimile transmission - - -
6HIS HONOUR: Yes, OK.
7MS SOFRONIOU: Your Honour's receiving them all.

8
9#EXHIBIT 63 - Facsimile letter by defendant to David
10 Hanlon dated 05/11/07, together with the
11 attachments thereto.
12HIS HONOUR: Now, do you want – are you going to ask Mr Hanlon
13 any question about that before we break for lunch?
14MR JOHNSON: Perhaps a break for lunch would be useful, given
15 the concerns, because I'm constrained by Your Honour's
16 pleadings. I don't think I've got that many more
17 questions (indistinct) asking Mr Hanlon - - -
18HIS HONOUR: Good, well, you just gather your wits over
19 lunchtime, and we will adjourn at 2.15. Resume at 2.15,
20 thanks, Mr Richards.
21<(THE WITNESS WITHDREW)
22LUNCHEON ADJOURNMENT
23

2Cressy

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1MR DEVRIES: The matter is still proceeding Your Honour.

2HIS HONOUR: Yes, thanks Mr Devries. Mr Johnson, where are

4MR JOHNSON: Yes Your Honour, a couple of preliminary matters.

5 I consulted my affidavit of 2 February this year and

6 there are a number of witnesses listed I was considering

7 calling, I will address the reasons why I haven't called

8 them in submissions. There are three on that list

9 actually that I do wish to call, we discussed Mr Hanlon

10 and Mr Turnbull yesterday. The other man I want to call

12HIS HONOUR: What basis do you wish to call Mr Devries?

13MR JOHNSON: It goes to the basis of my claim against

14 Ms Cressy's solicitors past and present that this was an

15 oppressive vexatious abuse of court proceedings issuing

16 this statement of claim. It was issued to proffer their

17 caveats that are referred to in my statement of claim and

18 I realised last night Your Honour, the whole purpose of

19 the proceedings, the statement of claim, that had to be

20 filed and advised to the registrar of titles - - -

24 they're kind of almost part of my organic structure Your

25 Honour. The statement of claim you say I'm bound by my

26 words, I dispute that Your Honour, and it's something I

27 will raise with the Court of Appeal quite naturally. I

28 complained as at 18th or 17th or thereabouts of February

29 in that handful of words written in a handful of minutes

30 with less than a handful of minutes' sleep for a few

31 nights, of the vexatious caveats, because that's

1.LL:MH 10/02/09 FTR:1-2A 62 DISCUSSION

2 point filed s.89A applications in respect of the caveats

3 attaching to all of my properties except for the Altona

5 under our child support arrangements, referred to in my

7 I did not wish to frighten her, even though that

8 caveat attaching to the property was as vexatious as all

9 the others, by putting an 89 application in there, a show

10 cause notice issued by the registrar to her lawyers to

11 either show cause issue proceedings or remove the caveat.

12 The proceedings were issued solely because the clock was

13 ticking Your Honour, on those vexatious caveats as

14 they're attached to all the properties of mine other than

15 the Altona one, which I never lodged, I have never lodged

16 even to this day an 89 application against that caveat.

17 Not because I'm suggesting there's any legs in it, there

18 isn't, but simply because I didn't want to leave

19 Ms Cressy with the impression I was trying to throw her

20 out on the street.

21 I've been accused of that that many times, I regard

22 that as highly defamatory, perhaps even criminal

23 defamatory and I understand the privileges attaches to

24 advocates are only in respect of privilege from civil

25 suit within seven days within the immunities in the

26 precincts of the court, not the criminal things that are

27 done. And that's something I will be taking up with

28 senior detectives from the Purana Taskforce as soon as

29 this hearing concludes. I say I don't - - -

30MR DEVRIES: I take that as a threat and an attempt to

31 intimidate me, I submit that that is contempt of this

1.LL:MH 10/02/09 FTR:1-2A 63 DISCUSSION

2HIS HONOUR: Yes well - - -

3MR JOHNSON: I think it's a courtesy to inform Mr Devries, as

4 he knows I've been informant in the correspondences - - -

5HIS HONOUR: Mr Johnson's conduct of this case maybe the

6 subject of enquiry by other organisations but that's not

7 a matter for me, I'm concerned with the relevant issues

8 in this case. You don't seem to me to be trying to