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MR DEVRIES: Still proceeding, Your Honour.

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

at court?

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

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

obliged to inform the court and my learned friends of

certain matters I believe regarding the continuation of

the defence's case. In light of my acquaintance

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

case, the requirement to foreshadow certain things to the

court and my learned friends. Also my acquaintance with

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

fair warning that is given of his intended use of my

Family Law Act affidavit materials.

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

February next year anyway, which is closer to my original

three to four week estimate, which as things have

progressed since the beginning of this year was probably

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

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

necessary, expected and previously subpoenaed one or two

other witnesses when we resume in the new year.

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

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

do with it?

MR JOHNSON: There was a suggestion that a rule mentioned

yesterday by Mr Devries that he had to give me fair

warning about use of some of the materials from the

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

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

Law affidavits - - -

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

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HIS HONOUR: I'm sorry. Well, you given some warning. That's

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

not sure what you're warning there.

MR JOHNSON: Your Honour - - -

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

parties.

MR JOHNSON: There we go. I'm only acquainted with the rule

from the fact that it was mentioned yesterday - - -

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

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

point against you.

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

that agreement, and I perhaps made that a little hasty

because I should've negotiated for Your Honour to draw

positive inferences rather than zero inferences. But be

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

affidavit material of mine, I intend to call

Ms Leanne Kelly my accredited family law specialist of

the period as my witness. Also Federal Magistrate

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

28 I subpoenaed on 28 November this year.

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

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

Have you called that subpoena on?

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

call, they will be set aside.

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

MR JOHNSON: If I may - - -

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

affidavit or - - -

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


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with" - - -

HIS HONOUR: Is Ms Kelly available?

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

HIS HONOUR: Why not?

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

calling.

HIS HONOUR: Where is Ms Kelly's offices?

MR JOHNSON: Either west of the Westgate Bridge or Moonee

Ponds, Your Honour.

HIS HONOUR: I'm sure that Ms Kelly, being an officer of this

court, if requested will come to court post haste if she

can.

MR JOHNSON: May I say I'm - - -

HIS HONOUR: I'd stand the matter down for you to telephone her

and ask her if she'd like to attend as soon as she can.

MR JOHNSON: There are several others that I – who are amongst

my 28 I subpoenaed on the 28th of the 11th, and I

foreshadow there'll be objections to the subpoena. Two

are my good friends Richard Anderson and Warwick Nelson

from Harwood Andrews.

HIS HONOUR: What do you wish to subpoena Mr Anderson for?

MR JOHNSON: They are relevant to the 2nd and 3rd defendants'

by counterclaims arguments, as foreshadowed of a no case

action. Also the issue of my credibility and the

suggestion that there's some sort of bullying, or I'm a

Herscu type, Flower Hart, Callanan type of vexatious

bully claim in joining the 2nd and 3rd defendant by

counterclaim. There may be others - - -

HIS HONOUR: I don't see how they could give evidence in

relation to that. The question went – it was put - - -

MR JOHNSON: They - - -


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HIS HONOUR: Just let me finish first, Mr Johnson.

MR JOHNSON: Certainly, Your Honour. It's complicated, Your

Honour.

HIS HONOUR: It's not complicated. It's simply a matter of

listening or having the courtesy to do so. The questions

that were put to you related to your motivation in

writing some letters, which contained certain paragraphs

threatening action against Harwood Andrews. I do not see

how Richard Anderson or Warwick Nelson could give

evidence in relation to that. Secondly they're matters

that effect – simply put as to your credit as I

understand it, so that it's a collateral issue on which

extrinsic evidence is not admissible. In other words

Ms Sofroniou could not cross-examine or could not broach

an issue beyond cross-examining you, and you can't call

positive evidence on your credibility. What other

relevance apart from that would they have?

MR JOHNSON: Your Honour has a number of correspondences - - -

HIS HONOUR: Do they have a relevance apart from that?

MR JOHNSON: Yes, Your Honour. Relevant to my proposition that

to the contrary I was trying to negotiate a reasonable

outcome ex gratia, the plaintiff having no vindicatible

claim against me without the necessity for protracted

litigation and legal expenses, Your Honour. May I also

make one other point which I think will bring this

altogether? Drawing out of my learned friend Mr Devries'

presentation yesterday afternoon. Now, if I play devil's

advocate and adopt his analysis of the domestic

relationship, the conclusion is that for all of Calendar

Year 2004, 2005, 2006 and later I was in three domestic

relationships. All three ladies were nourished


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financially. All three had or claimed to have or were if

briefly with child by me. All three relationships on

Mr Devries' analysis were for periods of in excess of two

years, and ended less than two years ago. All three

ladies would have standing to bring de facto property

claims against me under the old Act Part 9, or under the

new Relationships Act. Now, as a serial monogamist - - -

HIS HONOUR: That's a very dangerous admission you're making

but - - -

MR JOHNSON: As devil's advocate, Your Honour. As - - -

HIS HONOUR: In relation to that – just calm down.

MR JOHNSON: Yes, Your Honour.

HIS HONOUR: In relation to that, what's relevant to that?

MR JOHNSON: As a serial monogamist, living alone in a

household of one for all of that three year period, I

submit that's an abomination that I could be legally held

to be in even one domestic relationship.

HIS HONOUR: That's a submission, and we aren't into

submissions yet.

MR JOHNSON: I intend to call my girlfriend of the period,

Elisabeth Erasmus as a witness to that relationship I had

with her - - -

HIS HONOUR: Was that - - -

MR JOHNSON: - - -and my living arrangements - - -

HIS HONOUR: - - - in 2004 to six wasn't it?

MR JOHNSON: Early 2004, all of 204, all of 205, all of 206,

and into 2007. She can give evidence which - she's not

part of the arrangement - - -

HIS HONOUR: I understand what you'd be seeking to call her to

give evidence to.

MR JOHNSON: Thank you, Your Honour. Also, I'd say that as


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part of the plaintiff's case her solicitors David Hanlon

and Colin Twigg and former solicitor, her current

solicitor James Turnbull, swore affidavits to support her

case, particularly interlocutory proceedings. They

should have been made available to me to cross-examine on

their affidavits as part of the case - - -

HIS HONOUR: No, that's not how a common law trial proceeds.

MR JOHNSON: I will be calling on them by subpoena if necessary

to give evidence as hostile witnesses as - - -

HIS HONOUR: They won't be hostile witnesses, they'll be your

witnesses.

MR JOHNSON: Exactly, exactly, and no doubt they will seek to

contest those subpoenas also Your Honour.

MR DEVRIES: Can I be heard on this Your Honour.

HIS HONOUR: Yes, we'll do one at a time.

MR JOHNSON: I have a couple of other clear warnings - - -

MR DEVRIES: I'll put him finished, Your Honour.

HIS HONOUR: No he hasn't finished.

MR JOHNSON: I'm halfway through my pages of notes,

Your Honour, seven pages.

MR DEVRIES: May it pleases Your Honour.

HIS HONOUR: It doesn't please me Mr Devries, but I - - -

MR DEVRIES: Yes.

MR JOHNSON: Irrespective of any use Mr Devries or Ms Sofroniou

wish to make a judgment into that account, I'll be

submitting that that case is not now, if it ever was in

the previous 350 years good law in this jurisdiction,

because it's a back-door violation - - -

MR DEVRIES: It's a principle. It's a submission for later on,

Your Honour.

HIS HONOUR: It's a submission for later.


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MR JOHNSON: Very well, I'll pass that Your Honour.

HIS HONOUR: Jones v. Dunkel is still good law in civil trials,

it no longer applies in criminal trials. Continue on.

MR JOHNSON: I'll be making similar submissions in respect of

the case's Generally v. Raithe and Daughter v. Denke, or

- I can't pronounce it. It's a submission.

HIS HONOUR: Generally v. Raithe has got nothing to do with

this case.

MR JOHNSON: Thank you, Your Honour. I give fair warning to

Mr Devries.

HIS HONOUR: It seems to me Mr Johnson that, particularly from

your last couple of items is that you're just simply just

filibustering. You aren't now making a genuine

application in relation to your case. You – I've

remarked on this before and I'll do it again. My genuine

perception of you, is that you are a, to put it mildly, a

very intelligent person. I wouldn't be surprised if it

could actually be put more highly than that.

You have thus shown, if I may say so, a remarkable

ability when you want to, to understand how this case is

run. If you have not been an advocate before, or you

want to, you have displayed real natural skills in this

regard. I mean that genuinely. When you depart from

that, when you divert into irrelevancies and

filibustering like this, there's a clear inference that

you're doing it to waste time, and try to derail the

case, because you're too intelligent not to understand

that's what you're doing.

You're not assisting your case. I've tried to

remind you of that, not simply to get this case finished,

but so you will in this case, do justice to yourself.


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Because when I come to write my decision, I want to do it

in a way which is fair, not just to the plaintiff, but to

you. You're not assisting yourself trying these tactics

on me. I've told you, for better of for worse, I've been

around these courts all my professional life, and I can

see through this tactic and it doesn't divert me.

You're better off sticking to sensible submissions

of which I know you are capable to assist yourself.

Having given you that bit of advice in your best

interests, can you now make to me a sensible submission

about what you want to do today, and what you want to do

about it.

MR JOHNSON: Given that we have to go into February in the new

year, my view is that these proceedings, and these second

proceedings should have proceeded together. I've been

disadvantaged by - - -

HIS HONOUR: I've overruled that, because there's no way the

other proceedings could proceed with this. Firstly,

there's a different plaintiff in them as I understand it.

Secondly, there are a series of defendants. I can't

simply mold the two and bring them in here without any

notice. Thirdly, no application was properly made to do

that before this trial.

No order to that effect had been made. There seems

to me to be no disadvantage to you in having this case

proceed, and indeed it would seem to me despite your best

endeavours to the contrary to be in your very best

interest to have this case heard and determined and

disposed of.

MR JOHNSON: Your Honour, as I mentioned on the morning - - -

HIS HONOUR: Now you can get out of your head this - any idea


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that I'm going to bring the other proceeding into this

proceeding. I'm hearing Action No.9665 of 2007 and that

is all. Now I'll just proceed with that.

MR JOHNSON: I have a copy - - -

HIS HONOUR: What witnesses do you say you now wish to call?

It seems to me to be the basis of an application by you

to put the matter over until next year or not to proceed

beyond today.

MR JOHNSON: I believe natural justice requires - - -

HIS HONOUR: And if you don't close the case today? Who do you

wish to call? You've foreshadowed one witness so I can

understand you may wish to call, that's Leanne Kelly.

You foreshadowed a second witness I understand you may

wish to call.

MR JOHNSON: Elisabeth Erasmus.

HIS HONOUR: Elisabeth Erasmus. I can understand that she will

go to a relevant issue.

MR JOHNSON: Thank you Your Honour.

HIS HONOUR: Now keeping your high intellect steadily focussed

on the issues that are in this case, what other

witnesses, sensibly, do you wish to court.

MR JOHNSON: The Federal Magistrate, Damian O'Dwyer.

HIS HONOUR: Well, why do you wish to call His Honour?

MR JOHNSON: So we can discuss the hobbling based on orders

obtained by Mr Devries, 90 per cent drafted by him in

that jurisdiction.

HIS HONOUR: Well that's got nothing to do with the issues in

this case that would be relevant.

MR JOHNSON: It does go to a number of issues Your Honour.

HIS HONOUR: It goes to no issues. What issue does it go to?

MR JOHNSON: It goes to um - I had - I wish to give Mr Devries


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fair warning that I will be - and I can refer to a number

of examples even from yesterday afternoon's presentation.

I'll be asking Your Honour to consider your residual and

continuing jurisdiction under Chapter 4 of the Legal

Practice Act to deal with misconduct complaints which I

have made a number of times.

HIS HONOUR: That is not a matter before me. My jurisdiction,

in this case, is to hear the claim and the counterclaim.

I've - - -

MR JOHNSON: Unfortunately - - -

HIS HONOUR: - - - you've already given me a bad throat, having

to remind you of that throughout this case.

MR JOHNSON: I apologise for having - - -

HIS HONOUR: I don't wish to strain my voice any further today

by having to constantly repeat that. Now for a moment

you had some sensible focus. You've identified two

witnesses who it would seem to me to be relevant to call

in your own interests. Leanne Kelly and Elisabeth

Erasmus. Who else do you wish to call in relation either

to the claim against you or any of the causes of action

stated by you in your counterclaim?

MR JOHNSON: Your Honour, there are the other witnesses that I

mentioned moments ago. Your Honour - - -

HIS HONOUR: Who? Do you wish to call Mr - - -

MR JOHNSON: The four people from Harwood Andrews - - -

HIS HONOUR: Sorry?

MR JOHNSON: - - - and Mr Turnbull as well.

HIS HONOUR: Which ones from Harwood Andrews? Let's go through

them. You wish to call Mr Hanlon?

MR JOHNSON: In chronicle order, David William Hanlon.

HIS HONOUR: Yes?


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MR JOHNSON: Colin Twigg.

HIS HONOUR: You appreciate if you call Mr Hanlon, you cannot

cross-examine him? That you'll only be able to ask him

non leading questions?

MR JOHNSON: Thank you Your Honour. I - I didn't, but even as

a hostile witness - - -

HIS HONOUR: I think you did.

MR JOHNSON: - - - you can't.

HIS HONOUR: You would have to prove hostility in the technical

sense of that word.


HIS HONOUR: You can't simply call a witness for the purpose of

hostilling him.

MS SOFRONIOU: And I'd object to that course in due course Your

Honour.

HIS HONOUR: Well I'd hear from Ms Sofroniou. I'm just getting

submissions from you at the moment. So we'll call

Mr Hanlon.

MR JOHNSON: M'mm. Mr Colin Twigg on exactly the same

principles, including an anticipated objection.

HIS HONOUR: I don't understand what Mr Twigg's got to do with

the case. You haven't led any evidence as yet relating

to Mr Hanlon or Mr Twigg, but let's proceed on.

MR JOHNSON: Richard Anderson and Warwick Nelson.

HIS HONOUR: In relation to what?

MR JOHNSON: Some of the materials that are in exhibits, being

correspondence passing between myself and those

(indistinct).

HIS HONOUR: Those documents are in.

MR JOHNSON: Yes, but only as to sending and receipting, not as

to the contents Your Honour.


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HIS HONOUR: The contents speak for themselves. I can read.

MR JOHNSON: I just wasn't aware that you could draw inferences

of the fact out of the contents as the exhibits that have

been put to you Your Honour.

HIS HONOUR: I don't understand, part of the fact finding

process is drawing proper inferences, not guesses where

you establish principles.

MR JOHNSON: Thank you, Your Honour.

HIS HONOUR: I don't see any relevance in Mr Henderson or

Mr Nelson.

MR JOHNSON: I may wish to call one or more members of the

Victoria Police.

HIS HONOUR: To do with what?

MR JOHNSON: All such members were amongst my subpoenas.

HIS HONOUR: In relation to what?

MR JOHNSON: Certain actions of the parties during or Ms Cressy

in particular during the alleged period of this alleged

domestic relationship and subsequent.

HIS HONOUR: Well, that's too vague a basis for adjournment.

Identify what issue.

MR JOHNSON: One goes to that incident on the grand final

weekend 2007.

HIS HONOUR: That's irrelevant, that's outside any relevant

period.

MR JOHNSON: Another goes to the circumstances that Mr Peter

Cockram will give evidence about which was instrumental

in - - -

HIS HONOUR: Mr Cockram was allegedly having an affair with the

plaintiff.

MR JOHNSON: Amongst other things, Your Honour, which led to

my - - -


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HIS HONOUR: I don't see any relevance in those witnesses being

subpoenaed.

MR JOHNSON: Your Honour, that's the turning point of which I

moved into my household of one, Your Honour, in Bourke

Street in the city.

HIS HONOUR: Apart from the police.

MR JOHNSON: Perhaps one or two health industry professionals,

Department of Human Services and/or hospital people.

Again relating to that grand final incident.

HIS HONOUR: That's got nothing to do with this case, this is

not the Family Law Court.

MR JOHNSON: It's a tipping point, Your Honour.

HIS HONOUR: Nothing to do with this case, I would rule that

evidence inadmissible.

MR JOHNSON: I wish to give a fair warning to Mr Devries and I

will specifically refer to a number of actions of

Mr Devries since the commencement of these proceedings to

support a basis for my application that Your Honour

consider your residual and continuing jurisdiction for

misconduct complaints under Chapter 4 of the Legal

Practice Act.

HIS HONOUR: I have no such jurisdiction as I can see it, my

reading is - - -

MR JOHNSON: It's clear in the legislation.

HIS HONOUR: - - - that dispute is if any complaint is made to

the Commission I would not deal with any complaint in

this proceeding. The only concern I have quite frankly

is that some of the wild and unsubstantiated allegations

you have been making as a practitioner of 18 years

standing, as a man who says he has served on committees

for the Institute and who says he has in his bag or in


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his possession a book on ethics. That is why I raised

that with you yesterday, but that is not a matter for my

jurisdiction at all, other than it may go to issues of

credit. Now, let us proceed.

MR JOHNSON: Your Honour, the problem here - - -

HIS HONOUR: Let us proceed.

MR JOHNSON: The problem here is there are overlapping

jurisdictions and I agree with you the Legal Services

Commissioner as the dominant jurisdiction.

HIS HONOUR: He does, I would not entertain it. You are

wasting the court's time and it seems to me you are

discrediting your application.

MR JOHNSON: I would like to say that those allegations are

perhaps wild but they are also carefully substantiated.

HIS HONOUR: They are wild. Mr - - -

MR JOHNSON: I may refer to a number of - - -

HIS HONOUR: Mr Johnson, it seems to me the more you beat on

this drum the more you are simply proving the lack of any

genuine intent in this application for an adjournment.

MR JOHNSON: May I give half a dozen examples, Your Honour,

just from when this trial proceedings commenced.

HIS HONOUR: If you want to persuade me to continuing today and

force me to close your case you can. This is not

relevant. I would entertain - I would not say I would

accede to but I would entertain application not to

require you to close your case today, if you were able to

persuade me that you had some genuine witnesses who it

would advance your interests to call. Now, so far it

seems to me you have pointed to two, Leanne Kelly and

Elizabeth Erasmus. Mr Hanlon, I assume, would relate to

the counter-claim, I want to hear from Ms Sofroniou on


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that, but I would not allow him to be called simply to be

made hostile or an application for hostility simply

because he gives evidence you don't like. The rest I

have yet to discern any relevance.

MR JOHNSON: Your Honour, doesn't the relevance speak for

itself where a solicitor swears an affidavit on behalf of

a client that that solicitor should be available for

cross-examination as part of the presentation of the

client's case?

HIS HONOUR: I have already explained what the position is,

there are no affidavits before me other than those that

have been put to you as an inconsistent statement. If

you wish to call Mr Hanlon, subject to hearing from

Ms Sofroniou, you can call him, but you will not have a

right to cross-examine him.

MR JOHNSON: Thank you, Your Honour. The absence of affidavits

from the plaintiff's side of the case was due to my not

knowing - and I believe that I have maybe not good but

reasonable excuse for not knowing that all of the

parties' affidavit materials are already before Your

Honour as part of the body of evidence. I simply didn't

know that I needed to cross-examine - - -

HIS HONOUR: I don't know how many times I told you that the

affidavits are not before me as part of the evidence.

MR JOHNSON: But they were before Federal Magistrate O'Dwyer.

HIS HONOUR: Mr Johnson, you are wasting time and you're

beginning to talk me out of any inclination to grant your

application. Just simply identify to me the genuine

basis upon which you say you don't wish to close your

case today. Perhaps while you are doing so do you think

that Mr Richards would check to see if Mr Cockram is


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outside court. Mr Cockram has arrived. It seems to me

perhaps before he disappears we ought to hear from him.

MR DEVRIES: Before we do, Your Honour, can I just rise to

mention one thing. In my submission - - -

HIS HONOUR: If it's quick.

MR DEVRIES: It will be very quick. In my submission the only

two relevant witnesses are Ms Kelly and Ms Erasmus - - -

HIS HONOUR: He hasn't finished yet.

MR DEVRIES: But, Your Honour, I would be submitting to Your

Honour that he should now call them and get them to

court, so that we can at least get them out of the way

today because he could have got them to court, they are

available. Certainly Ms Kelly would be available as a

solicitor unless she has gone on holidays and to adjourn

the matter just for those two and they are both present

and available.

HIS HONOUR: Mr Devries, the matter has got to be adjourned

anyway because it won't on any view finish. One of the

reasons it won't finish is because you are unavailable

next week. I will ask the defendant to contact

Ms Erasmus and Ms Kelly now to see if they can come to

court now, we will deal with Mr Cockram.

MR DEVRIES: That's why I'm asking before we call Mr Cockram.

HIS HONOUR: Yes.

MR DEVRIES: That's all I'm asking Your Honour, and I apologise

if I have taken too much time to ask that.

HIS HONOUR: Well, I think I have wasted my time sitting long

hours, all I have done is destroyed my own health and I

won't do it again when this case resumes. Mr Johnson,

I'm going to rise. I would direct you to telephone

Ms Kelly and Ms Erasmus to see if they can come to court


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today to give their evidence. What happens if they are

part heard in their evidence Mr Devries? You won't be

here next week to do anything about it? All right, see

if you can get them in and otherwise we will hear from Mr

Cockram in 10 minutes.

MR DEVRIES: May it please Your Honour.


(Short adjournment.)

HIS HONOUR: Did you contact Ms Kelly and Ms Erasmus?

MR JOHNSON: I was unsuccessful in my two attempts to contact

Leesy, Elizabeth. Ms Kelly, I spoke with her through the

intermediary of her own personal assistant.

HIS HONOUR: Yes.

MR JOHNSON: Ms Kelly is not available to attend court today

and she is adverse to the idea of giving evidence. We

have certain issues, Ms Kelly and I, regarding her - - -

HIS HONOUR: I don't need to know that.


HIS HONOUR: It's a matter for you. I'll give - - -

MR JOHNSON: Also - sorry, Your Honour. I did just introduce

myself to the witness, Peter Cockram who I had not met

until only a few moments ago. It seems quite clear to me

that he is not going to be a cooperative witness, Your

Honour, and so I will need to have evidence given in the

same session by Constable Jennifer Locke from the

St Kilda - - -

HIS HONOUR: You may need to but I don't see any relevance.

You've subpoenaed Mr Cockram who will give evidence.

MR JOHNSON: He's not going to be cooperative, Your Honour.

HIS HONOUR: Mr Johnson, I don't know that. I'm sure

Mr Cockram will do - he's here on subpoena, I'm sure that


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he will tell the truth. Let's call Mr Cockram without

any more deliberate time wasting on your behalf.

MR JOHNSON: As Your Honour pleases.

<PETER FRANCIS COCKRAM, affirmed and examined:

HIS HONOUR: Mr Cockram, you may be seated. Mr Cockram, your

full name is Peter?---Francis Cockram.

Peter Francis Cockram. Your address, it can be professional if

you don't wish to give your residential address?---I live

at 15 Feversham Avenue in Park Orchards.

Yes, and what is your occupation?---I'm an accountant.

Thanks, Mr Cockram. Now, you probably know nothing about this

case and Mr Johnson - - -?---I don't know what I'm doing

here, Your Honour.

No, and Mr Johnson has had served on you a subpoena to have you

brought to court today in this case. Mr Johnson, he's

your witness.

MR JOHNSON: Thank you, Your Honour. Can you tell His Honour

how long you have lived at that Park Orchards address?

---Um, I - I believe about 15 years, Your Honour.

Have you ever been employed by or done any consulting work for

the Salvation Army?---I - I've been employed by the

Salvation Army.

What was the duration of that employment, please, sir?

---Approximately four - four and a half years.

Over what timeframe, Mr Cockram?---I left there last March so

that was four and a half years - - -

That would be from September 2002 to March 2007?---That would

probably be it, yes.

Thank you, sir. I'm not sure of the appropriate warning, or

whether any warning's appropriate, Your Honour. Because

some of the questions I wish to as Mr Cockram - - -


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HIS HONOUR: Ask the questions, if any cautions are needed, I

will give it.

MR JOHNSON: Mr Cockram, do you or have you at any time known a

lady by the name of Pippin Cressy?---I don't know.

You don't know if you've known her?---Your Honour, I had a

stroke and I'm already - has - has little - a lot - and

there's lots of things I don't remember in my life.

HIS HONOUR: When did you have your stroke, Mr - - -?---In

2002, Your Honour.

And it's affected your ongoing memory?---Yes.

MR JOHNSON: Has that affected your memory of events before

2002 or after 2002?---Um, more so before because I'm

still gradually rebuilding my life.

HIS HONOUR: Yes.

MR JOHNSON: Mr Cockram, have you ever been known by or adopted

any other names other than Peter Francis Cockram?---I

wouldn't think so, why would I want to do that?

Have you ever, at any time for any purpose, assumed my name,

James Johnson?---I've never met or known who you are.

I've got no idea what I'm doing here.

That doesn't quite answer the question, Mr Cockram. Have you

ever used my name, James Johnson, as if it were your

name?---No. Not that I'm aware of anyway.

I'd like to show the witness a document, Your Honour.

Mr Cockram, this document it's an email message, isn't

it?---Appears to be so.

And it's sent from a James Johnson - - -

MR DEVRIES: Your Honour?

HIS HONOUR: Yes?

MR DEVRIES: The witness should be asked if he has seen this

email as a - - -


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HIS HONOUR: I don't know what it is. Is it?

MR DEVRIES: Your Honour, he shouldn't be asked the contents

unless he first of all identifies whether he knows

anything about the document.

MR JOHNSON: I will come to that Your Honour.

HIS HONOUR: No, you will come to it now.

MR JOHNSON: He would not have seen this as such because it

would have been electronic. (Indistinct).

HIS HONOUR: Well, you've put an email before Mr Johnson. What

question do you ask before Mr Cockram?

MR JOHNSON: Interesting slip Your Honour. I intend to ask him

whether he was the author and whether he sent this to me.

But I intend to do that later after this steps.

HIS HONOUR: Well you can ask him that now.

MR JOHNSON: Mr Cockram, did you write this email?---I couldn't

tell you that.

Could you look at the date that the email was sent? Tuesday

16 December 2003. Isn't that correct?---That's what it

says on this document.

If you had sent that email to me at that date, would you be

able to remember that, or would your memory be affected

by the stroke you said you had in 2002?---I don't

remember anything about this document at all. Remember

(indistinct).

May I ask you to read who it was sent from? James Johnson?

MR DEVRIES: Your Honour, I object. If he knows nothing about

this document, he cannot give any evidence about this

document.

HIS HONOUR: Well I agree, but I haven't heard the question yet

Mr Devries. You've just jumped the gun a shade.

MR DEVRIES: I'm sorry Your Honour.


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HIS HONOUR: Mr Johnson, what do you want him to do?

MR JOHNSON: I want to ask him about the Hotmail account from

which this email was sent.

HIS HONOUR: You can ask him if he identifies that Hotmail

account.

MR JOHNSON: Mr Cockram, can you identify that Hotmail account?

[email protected]?---I'm sorry Your Honour. I

don't.

HIS HONOUR: You don't know anything about that Hotmail

account?---No Your Honour. (Indistinct). I've lost the

(indistinct) Your Honour.

Yes. No, if you don't recognise it, you don't recognise it.

MR JOHNSON: Do - is this something that you might have

forgotten, or do you have a clear?---I got nothing

(indistinct). I have no idea what I'm here for.

HIS HONOUR: Mr Johnson - - -?---(Indistinct response).

- - - you cannot ask him any questions about a document he has

not identified and if he doesn't identify it, he doesn't

identify it. Now don't get upset Mr Cockram.

MR JOHNSON: We're actually at the point Your Honour where I

anticipated we would be before the witness was called.

HIS HONOUR: Well I didn't anticipate anything. There's

nothing I could anticipate in this case, including its

conclusion, but what - you're bound by your witnesses's

answer. He doesn't identify the document.

MR JOHNSON: And on that basis I have no - - -

HIS HONOUR: He has sworn he doesn't know.

MR JOHNSON: - - - more questions for this witness about this

document.

HIS HONOUR: Thank you Mr Johnson.



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HIS HONOUR: Mr Devries, do you have any questions of

Mr Cockram?

MR DEVRIES: Absolutely not Your Honour.

HIS HONOUR: Ms Sofroniou?

MS SOFRONIOU: No Your Honour.

HIS HONOUR: Thank you. Mr Cockram, thank you for your

attendance. It's all probably been very bemusing to

you?---I've got nothing.

If I tried to explain to you about it, I don't think it would

probably clarify anything at all. All I can say is it's

been an unusual case. Thank you very much for your

attendance. I trust that you weren't put under any

pressure and you are now excused from attendance?---Thank

you Your Honour.

(Witness excused.)

<(THE WITNESS WITHDREW)

MR JOHNSON: There is one minor footnote to that evidence Your

Honour. It became clear that the original subpoena,

despite an affidavit of service being sworn by

Mr Wittekind was not actually served on that witness.

There was a second affidavit of service sworn by the same

process server, who the witness - actually my um,

concierge at my apartment, she tells me that she was in

Adelaide, so couldn't possibly have been served, so we

appear to have had two falsely sworn affidavits of

service by Mr Wittekind.

HIS HONOUR: Well that's a matter for you to take up with the

authorities.

MR JOHNSON: I said to the - - -

HIS HONOUR: Now let us proceed with this case.

MR JOHNSON: Your Honour given that evidence I most definitely


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need to call Miss Jennifer Locke of the St Kilda Road

Police Station, who wants to give evidence.

HIS HONOUR: For what subject?

MR JOHNSON: Contradicting the evidence that Mr Cockram has

given, and identifying Mr Cockram, and the investigation

that Constable Locke undertook.

HIS HONOUR: To prove what in relation to this issue? This

case?

MR JOHNSON: To prove Your Honour that there was a

relationship, a domestic - sorry a sexual relationship, a

lengthy duration of relationship between the plaintiff

and that witness Your Honour.

HIS HONOUR: How would Ms Locke be able to prove that?

MR JOHNSON: By - virtue of her having interviewed the

plaintiff and Mr Cockram in respect of that relationship

during the early part of 2004 Your Honour.

HIS HONOUR: Well any out of court spoken by Mr Cockram would

be inadmissible as hearsay. If there was any admission

made by the plaintiff to that effect, that may have some

relevance. I'll hear from Mr Devries on that. It's a

matter that's of really rather than anticipating evidence

see what comes. In a confused and probably deliberately

so manner, Mr Johnson seems to be stating that he cannot

close his case, not withstanding he's called Mr Cockram.

That fully doesn't affect you as much as it does

Ms Sofroniou and I, but he has obviously identified a

number of witnesses, the large majority of whom don't

seem to relate to this case at all, but there are three

who potentially may. That's Leanne Kelly in relation to

the affidavit on which the plaintiff relies as containing

an admission. It goes to the existence of the domestic


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relationship. Elisabeth Erasmus who would go to the -

who may potentially be relevant to this issue, and so

(indistinct) Ms Sofroniou and Mr Hanlon and no doubt he

wishes to call in relation to the allegations made

against Ms Daniel and Harwood Andrews, as yet totally

unsubstantiated, so in the mean - the counterclaim,

The case isn't going to finish today anyway on any

stretch of the imagination so that it would seem to me,

subject to all probabilities of hearing from Ms Sofroniou

and from you, I don't see how I can force him to close

his case today or require him to do so.

MR DEVRIES: I don't believe - sorry, with respect Your Honour,

I don't believe I could even ask you to force Mr Johnson

to do that. In respect to the witnesses is the

following, there is nothing to stop Mr Johnson here and

now calling Mr Hanlon, he is present in court and he is a

compellable witness.

HIS HONOUR: I will hear from Ms Sofroniou on that because she

foreshadowed an objection but I agree with that

otherwise.

MR DEVRIES: With respect, Your Honour, the objection arises as

soon as Mr Johnson made that application. There is

nothing to stop him saying those words, "I call

Mr Hanlon," and we'll see what happens. As for the other

two witnesses, Mr Johnson has been aware of the issues

for a number of those. It's only last night he says that

he has decided he wants to call these people. He knew

what the issues were - - -

HIS HONOUR: I can't shut him out though because - - -

MR DEVRIES: I'm not suggesting that, Your Honour.

HIS HONOUR: So what is the point?


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MR DEVRIES: The point is, Your Honour, I will be seeking my

client's costs of today because effectively they have

been wasted.

HIS HONOUR: I will hear your application, but it seems we have

got to go over from today anyway.

MR DEVRIES: We do, Your Honour.

HIS HONOUR: Yes, but let's not waste time now.

MR DEVRIES: Five hours of today has been wasted if Mr Johnson

can't go any further today.

HIS HONOUR: Let's just see. Without having speeches. Sorry,

Mr Devries, but - - -

MR DEVRIES: It was an application rather than a speech, Your

Honour.

HIS HONOUR: You foreshadowed an application, I will hear from

Ms Sofroniou.

MR DEVRIES: Thank you, Your Honour.

MS SOFRONIOU: Your Honour, there are two matters to address

Your Honour on, the first is the conduct of the matter

generally. It may be that I can't convince Your Honour

out of the course that Your Honour has adumbrated.

However, I think I owe it to the people sitting behind me

to just make a couple of points about that very shortly.

Your Honour, at the very opening of this case the first

day was taken up with applications concerning litigation

guardians. As was Mr Johnson's right he resisted that

application and Your Honour has ruled accordingly. In

light of that my submission is, albeit his status as

litigant in person, and I hope the fairness that this

side, as well as the court, has tried to show him in that

regard there is no doubt about it an elephant in the room

that should be addressed.


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My submission, and it's only my suggestion which

could be wrong, it's not a legal one, is that the act of

closing the defendants case is likely to be one of great

anxiety for Mr Johnson and one which perhaps

understandably he would seek to delay. I don't say that

by way of criticism and I may be wrong about that.

However, in light of the speech he gave today where he

was going through a list of possible people who might be

summoned or since it was inevitable that the matter of

going to go to February, I draw on that to make that

submission to Your Honour.

The thing that is omitted in all of this is that the

position of the second and third defendants by counter-

claim is not the same as the other parties. It is not

inevitable for us that the matter goes in to February.

Where I come from at least it's common among counsel that

if other counsel says they're unavailable that is given

respect to. I am unaware of why Monday, Tuesday,

Wednesday are unavailable next week. If my friend tells

me that it's impossible, then I accept that. All I am

saying is we actually don't understand why we have to

come back in February. That position is strengthened

when one looks at the cross-claim itself, because I have

foreshadowed one of those rare applications, a no case to

answer submission, rarely even made let alone upheld, and

this is a screamingly cogent example of where an

application at least ought to be made, not wanting to

pre-empt it's outcome, the substance of the claim claims

malice and maleficence of a type that most - as Your

Honour has gleaned from Mr Johnson - most legal

practitioners don't even put on paper without having some


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cogent evidence to back it.

Mr Johnson, and I am moving onto the second matter

now, is now purporting to call the party whom he has

accused of that because it has got something to do with

the counter-claim. In my submission that should be seen

through on two different grounds. First of all Mr

Johnson has quite candidly complained that he hasn't had

an opportunity to cross-examine. He thought that he

would have access to affidavits and cross-examination to

do that and he has been, as he may see it, stymied

because I am making an application that the case be

dismissed before I need to call him. I submit to Your

Honour that the request to call him is a pre-text. It is

an attempt to try to put to Mr Hanlon things that are

irrelevant, that are perhaps even scandalous and I have

some strength in making that submission because Your

Honour has seen enough of the correspondence and the

state of mind that has passed between those parties to

make it clear that this is a collateral device.

Furthermore, if Mr Johnson did wish to call Mr Hanlon, my

submission would be that if Your Honour didn't see it as

a pre-text and just say enough, this court is not going

to be used to continue whatever anxiety issues Mr Johnson

may have in this. The court process will not be used

that way. There are several legal practitioners in here

who have had to leave their practices, quite properly,

because they are parties to this case.

HIS HONOUR: I have observed that.

MS SOFRONIOU: That the court will draw the line and say

enough, and if that's an appellable issue, it's an

appellable issue, but that is enough. At the very least


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would Mr Johnson in respect of any of the further

witnesses he says he wishes to call, a conviction that is

by no means firm when he discusses them and which we have

already seen from Mr Cockram's useful evidence where the

man has almost had to be arrested that it was of no help

to the court at all, would Mr Johnson at the very least

provide this court with the detailed basis - maybe even

down to the questions that he proposes to ask these

witnesses, before he is given leave to do so, because in

the history and circumstances of this case my clients are

now going to be dragged back in February at the edge of a

no case submission. I am sorry to roll both of those

submissions into one.

HIS HONOUR: No, I can understand, Ms Sofroniou, I will say

this that I have great sympathy for the position that

your client has been placed in, there being brought to

this court the type of allegations contained in the

counter-claim. In my long years in this area, both at

the Bar and the judiciary, I would not have seen even a

handful of times, if that, because of the ethics

And I've waited for nine days to hear that evidence.

Mr Johnson deliberately expressly declined the

opportunity to cross-examine Ms Cressy when you had

elicited from her that he had absolutely nothing to do –

Mr Hanlon had nothing to do with the taking of the

documents in the other matters from Dorrington Street by

Ms Cressy. It seemed to me then Mr Johnson was doing

everything but walk away from the allegations he was

making.

MS SOFRONIOU: Indeed Your Honour.

HIS HONOUR: His desire now to call Mr Hanlon, in my view, does


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invite the type of comment that you have addressed to me

as a perfectly proper comment you have, or submission you

have made.

MS SOFRONIOU: If it please the court, Your Honour.

HIS HONOUR: The difficulty I do have is that one could only I

think in very rare occasions, refuse to permit a witness

to be called if the witness is patently irrelevant. But

Mr Hanlon strictly can't be forced to go to the witness

box. He can be invited to it, if he didn't do, so I

suppose Mr Johnson could subpoena him, and then you could

apply to set aside the subpoena.

Mr Johnson I suppose could erect some sort of

argument to say, "Well I wish to ask questions of

Mr Hanlon relating to the allegations of the

counterclaim".

MS SOFRONIOU: It's at that point, Your Honour, that my

submission comes in - - -

HIS HONOUR: As you could.

MS SOFRONIOU: Given the manner in which the counterclaim part

of his case is being conducted, for Mr Hanlon to be a

witness in his case, in my submission, Mr Johnson should

be asked to make that proposition - - -

HIS HONOUR: He should identify what issues he's going to ask

Mr Hanlon about.

MS SOFRONIOU: Yes, and not at the level of generality of, "Oh

it's about the counterclaim".

HIS HONOUR: It seems to me that that is not only improper, but

it is a very caging submission, and I agree with it, if

for no other reason that to try to get some sort of

management into this case. I think it's best that we

address that issue now. Thanks Ms Sofroniou, that's of


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assistance.

Mr Johnson, Mr Hanlon is of course not compellable

at the moment. But before I were to ask Ms Sofroniou to

accede to your request that he give evidence in your case

and against him, which you so far have to - seemed to me

expressly declined to address, you would need to put to

me proper basis upon which you wish him to be called.

What are the issues in which you wish to ask? The issues

which I hasten to add, although it should be unnecessary

at this stage of the trial, issues in – which have been

pleaded in the action.

When I say pleaded, I mean set out in print, in

black and white in the claim which is a writ, a statement

of claim, and the amended defence and counterclaim.

MS SOFRONIOU: Do you wish Mr Hanlon to leave the room while

that answer's is heard?

HIS HONOUR: No, he's a party. He's entitled to hear.

MS SOFRONIOU: Fine.

MR JOHNSON: Thank you, Your Honour, I commend my learned

friend once again for an excellent set of submissions. I

see exactly where she's coming from. I'm just looking at

the situation from a little step around to the left.

HIS HONOUR: I'm not interested in your little processes. What

I have done - - -


HIS HONOUR: - - - before I even issue an invitation to

Ms Sofroniou to request her client to go into the witness

box as a witness in your case - - -

MR JOHNSON: Yes, Your Honour - - -

HIS HONOUR: What I wish to do, is to have some understanding

as to how that would be relevant rather than to subject


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Mr Hanlon to the type of questions that we've just heard,

and the type of wild allegations that so far have been

made in this case without any object to substantiate

them. Mr Johnson, what issues – what do you wish to ask

Mr Hanlon?

MR JOHNSON: There are two issues, Your Honour.

HIS HONOUR: Yes.

MR JOHNSON: Ms Sofroniou is in effect requesting that I

provide interrogatories.

HIS HONOUR: No, I'm asking – I'm not asking that. What are

you – what do you wish to address, because all Mr Hanlon

is asked if he would be good enough to give evidence on

your behalf?

MR JOHNSON: Yes, these are two issues that I would require

those answers to those interrogatories before I could

plead this type of - - -

HIS HONOUR: What question?

MR JOHNSON: Claim properly. They go to the - - -

HIS HONOUR: What question?

MR JOHNSON: They go to the independence of mind brought by the

legal practitioner to the claims of the client before

taking steps, or as soon as reasonably practical

thereafter. The first of those steps - - -

HIS HONOUR: I'll just ask you why that's relevant - - -

MR JOHNSON: - - -was the investigation of the claims set out in

the caveat, and therefore justifying the Callanan caveat

that Harwood Andrews lodged to support the equitable

charge of that period, which is of course the creation of

the security interest attaching to my asset.

Secondly, the investigations that a certain legal

professional took into the relevance of the documents


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removed from my home, recovered by the police to the

proceedings in the Family Law jurisdiction, in which they

were subpoenaed, and locked out of me when I only did

them for commercial purposes so that I could step back

into my legal practice that I'd been shaken out of for

more than 12 months, Your Honour.

Secondly, the relevance of that said body of my very

important commercial and personal records to these

proceedings. I submit that there'd been no, or

negligible relevance to 90 per cent of those materials to

the Federal Magistrates' Court process in which they were

subpoenaed, or even indeed to these proceedings before

Your Honour today.

HIS HONOUR: It's got nothing – the counterclaim against

Mr Hanlon's got nothing to do with whether those

documents are relevant in this proceeding. There's a

logical hiatus there.

MR JOHNSON: But there was valuable documents taken - - -

HIS HONOUR: I'll hear Ms Sofroniou about those two issues, sit

down.


MS SOFRONIOU: As to the issues regarding the caveat,

Your Honour, it's not – let me put it this way. It's not

the validity of the caveat that's actually the number for

the claim.

HIS HONOUR: No, I understand that.

MS SOFRONIOU: Whether or not there were grounds for a caveat

in the properties of the – with Mr Johnson generally, is

a matter that he's pleaded in Paragraph 21 of the

counterclaim against Ms Cressy.

HIS HONOUR: Yes.


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MS SOFRONIOU: That in turn - it's not being said other than

that it was fraudulently and maliciously done. As I've

heard Mr Johnson's response, what he wants to ask about

is in fact the substance of these proceedings. Does she

have an adequate interest in the properties to justify

the placing of caveats?

Why was the caveat placed there? It doesn't

actually go to the very matter that is not only the onus

on Mr Johnson, but is the only matter in the counterclaim

namely fraud and malice.

HIS HONOUR: I must say I have difficulty understanding the

counterclaim, but if you look at the caveat issue pleaded

in 22 to 26 - - -

MS SOFRONIOU: Yes, Your Honour.

HIS HONOUR: He does allege that it was done fraudulently - - -

MS SOFRONIOU: That's right - - -

HIS HONOUR: - - -maliciously that Harwood Andrews lodged their

caveats.

MS SOFRONIOU: Yes. Now, Mr Johnson has put in evidence - - -

HIS HONOUR: Now, I'm not sure about the cause of action,

whether that includes also a claim under s.118 of the

Transfer of Land Act. It can't be an abuse of process

claim. It doesn't seem to me to have any clarity to it

at all. What the basis of the cause of action is?

Whether it's an intentional infliction of economic harm,

but a sort of conspiracy type cause of action, I don't

know - - -

MS SOFRONIOU: But in any event - - -

HIS HONOUR: - - -but it doesn't seem to me to fit any of those

known causes of action that I've been able to find.

MS SOFRONIOU: Indeed, Your Honour, but I'm not even raising


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that sort of demurrer point.

HIS HONOUR: No, I understand that.

MS SOFRONIOU: Mr Johnson has put in evidence the Harwood

Andrews caveat referred to and he has fairly put in

evidence the equitable charge, which is the interest

described in the caveat.

HIS HONOUR: I follow that.

MS SOFRONIOU: Now, he then has filed a pleading which as I

understand it regardless of the taxonomy of it, says that

was maliciously and fraudulently done. What I've just

heard Mr Johnson say is that Mr Hanlon will be asked what

was his understanding - I'm paraphrasing, of the strength

of the plaintiff's case to warrant the placing of her

caveats on which the Harwood Andrew's caveat rests on

top.

HIS HONOUR: Could it be argued though that if he knew that

Ms Cressy just did not at all have a viable claim under a

constructive trust, therefore the Harwood Andrews caveat

would be without content?

MS SOFRONIOU: That doesn't follow of course because caveats,

any caveat doesn't necessarily rest on a proven interest.

You'd need an arguable case effectively.

HIS HONOUR: This one would because Ms Cressy's not the

registered proprietor of the property. Her interest

would be at that time as an unregistered interest

pursuant to constructive trust.

MS SOFRONIOU: Indeed, Your Honour.

HIS HONOUR: And she's seeking really to charge that interest

to your client. Now - - -

MS SOFRONIOU: I think my proposition, Your Honour, is that

should that be a mistaken analysis of her interest - - -


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HIS HONOUR: That doesn't matter.

MS SOFRONIOU: It wouldn't - - -

HIS HONOUR: That would not establish - - -

MS SOFRONIOU: It would not - - -

HIS HONOUR: That could not establish fraud or malice. No, I

follow.

MS SOFRONIOU: That's my point, Your Honour, and so therefore

the rationale of the interest doesn't actually go to the

claim that Mr Hanlon has to meet as - - -

HIS HONOUR: I follow that. Well, I understand the parameters

of Mr Johnson but if Mr Hanlon were to say that Ms Cressy

came into his door and said, "Look, I've never even met

Mr Johnson, but I'm going to claim that I've lived with

him seven years", or something that would something

different.

MS SOFRONIOU: Yes.

HIS HONOUR: But there's been never any suggestion of that. It

wasn't put to the plaintiff.

MS SOFRONIOU: That's the problem. These sort of - - -

HIS HONOUR: It is the problem but what do you say? I mean if

he'd subpoenaed Mr Hanlon and Mr Hanlon sought to set

aside the subpoena, I think I'd be hard pressed to do

that wouldn't I?

MS SOFRONIOU: Your Honour, could – well, that's why I made the

lengthy submissions I just did, Your Honour. What Your

Honour would have regard to was the styming of his

availability and cross-examination, and the matters that

I've just been adumbrating to you.

HIS HONOUR: I follow that. It's a difficult issue.

MS SOFRONIOU: Certainly, Your Honour.

HIS HONOUR: Particularly bearing in mind that one would like


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to do one's best to ensure that the adjudication of this

case wasn't the subject of a subsequent adjudication,

four years later, in another place.

MS SOFRONIOU: Yes, Your Honour, of course.

HIS HONOUR: One needs to try to do one's best to ensure a

finality.

MS SOFRONIOU: I think it follows from that that the remaining

part of the counterclaim - - -

HIS HONOUR: - - -in which people with the status of the

defendant are accorded the utmost – yes.

MS SOFRONIOU: Yes, Your Honour. So it doesn't raise the theft

and burglary issues?

HIS HONOUR: No, no. He hasn't even adumbrated any questions

on that basis, and I know that that - - -

MS SOFRONIOU: Those are my submissions, Your Honour.

HIS HONOUR: I noted that. I hear what you say, Ms Sofroniou.

Mr Johnson. Thanks, Ms Sofroniou.


HIS HONOUR: I cannot force Mr Hanlon to go into the witness

box on your behalf. Indeed I could not draw an inference

against him if he declined to do it. It would seem to me

inappropriate in a case such as this to draw any such

inference at all, but I am prepared to invite him - - -

MR JOHNSON: I'm sorry, Your Honour, could I ask - - -

HIS HONOUR: I am prepared to invite him but on the very strict

basis that the only questions you can ask of him are

questions-in-chief. That you do not become abusive.

That they approach the relevant issues, which with your

intellect I'm sure you are well and truly familiar with.

It seems to me you're going to whether he had a genuine

belief in the validity of the Harwood Andrews caveat.


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MR JOHNSON: Your Honour, if I may assist my learned friend I'm

not wishing to ask any questions in respect of the

outcome of Mr Hanlon's analysis of the claims Ms Cressy

had - - -

HIS HONOUR: No. Well, you wouldn't be allowed to.

MR JOHNSON: I just want to ask, "What investigations did you

do? What was your analysis process in respect of

Ms Cressy's claims to caveats? What independent checks

did you do separate from what your client told you, and

likewise in respect to the subpoena documents? What

independent process of analysis"? Not the outcome, Your

Honour. "Process of analysis did you go through"?

HIS HONOUR: Even if there's a lack of independent

investigation, that's a long way from establishing fraud

and malice.

MR JOHNSON: I would say - I would say - - -

MS SOFRONIOU: This is a privileged - legally professionally

privileged - - -

HIS HONOUR: There is privilege and there may be an issue that

it's really Mr Devries' client's privilege that is at

stake in this.

MR JOHNSON: Your Honour, I would say that fraud requires

either actual knowledge or is so reckless that you ought

to know. Now, I'm not suggesting that Mr Hanlon had

actual knowledge that Ms Cressy's caveat claims were

worthless or her - what she put in terms of the

proprietary of the taking - - -

HIS HONOUR: Sorry - - -

MR JOHNSON: - - - until subpoena. I'm not suggesting that

Mr Hanlon had any actual knowledge or climbed into my

house in the dark of night. It's an after the event.


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I'm not even challenging in the circumstances the fact

that Mr Hanlon put those caveats on. What I'm

challenging is that at the first reasonable opportunity

as a professional, he should not have been an automata of

the client, I don't know if it happened, Your Honour. He

should have brought an independent frame of mind to the

claims, not allowed himself to become an instrument of

fraud of mischief or abuse of the Federal Magistrates'

Court's process in respect of the subpoenaing of

materials and not have allowed himself, if this indeed

happened, I don't know, without the answers to these

interrogatories, and we had none of that discovery

process here. We were just rushed to trial without

interrogatory and that may be part of the basis of the

paucity of the plaintiff's evidence, Your Honour. I need

the answers to those questions in order to frame my - - -

HIS HONOUR: I understand you saying they're not suggesting?

MR JOHNSON: Any actual knowledge.

HIS HONOUR: Of Mr Hanlon of the lack of truth of the claim

made by Ms Cressy to have an interest in your property,

is that what you're saying?

MR JOHNSON: What - what I understand, Your Honour, is that

a - - -

HIS HONOUR: I'd like to have a yes or no answer before - - -

MR JOHNSON: If I may give some details, yes.

HIS HONOUR: You are saying that Mr Hanlon did not have any

knowledge?

MR JOHNSON: Any actual prior knowledge of the worthlessness of

Ms Cressy's claims embodied in her caveat or her claims

in regard to an appropriateness of Mr Hannon subpoenaing

those materials of mine off the Victoria Police and


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putting them out of my use and control for months at a

very critical time in my deterioratoring or deteriorated

legal practice.

A number of legal practitioners here in court today

have been taken away from their legal practices and their

clients who need them. I'm - - -

HIS HONOUR: It's by your making, Mr Johnson.

MR JOHNSON: No, I'm a defendant, I've been brought here. I'm

not a plaintiff - - -

HIS HONOUR: No, you are, you're a plaintiff by counterclaim.

MR JOHNSON: A most reluctant one, Your Honour.

HIS HONOUR: I see no reluctance in the type of allegations

you've made. Don't discredit yourself by making that

sort of comment. It seems to me with that concession

that the evidence you wish to adduce is irrelevant.

MR JOHNSON: Not at all. Callanan's type claim - - -

HIS HONOUR: You say there was no fraud and no - you're putting

to me there was no fraud and no malice, what does this go

to then?

MR JOHNSON: I say that there was fraud through knowledge

imputed by recklessness. Mr Hanlon should have known a

short time after - - -

MS SOFRONIOU: There's no such - there's no such - - -

MR JOHNSON: Again, because I needed answers to interrogatories

before I could settle my pleadings. I've made no secret

of the fact that those pleadings have never been settled.

Much events that I've taken since they were drafted up in

a matter of minutes - - -

HIS HONOUR: There's another issue involved in this and this

affects Mr Devries. Mr Devries, you'll need to

communicate with your client. She has a privilege in any


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advice that's given to her by Mr Hanlon and any

instructions given by her to Mr Hanlon for that advice in

relation to both the caveat and in relation to the

subpoena.

If Mr Hanlon were to give evidence and be asked

questions on this, the question I need to know is will

your client be objecting on the basis that it involves

the disclosure of privileged information?

MR DEVRIES: It would depend on the particular questions, Your

Honour.

HIS HONOUR: Yes.

MR DEVRIES: Your Honour, while I'm on my feet, I should have

mentioned this to you right at the outset. Just before I

left chambers, I was approached by a member of counsel

who runs the Victorian Bar Duty Barrister's Scheme and he

has said that if need be, somebody could be provided

amicus curio or otherwise to assist either the court or

Mr Johnson. Probably too late to get them involved for

any part of today's proceeding - - -

HIS HONOUR: That's irrelevant to what the - to the problem

I've got at the moment.

MR DEVRIES: No, no, but before I forget that.

HIS HONOUR: All right, don't worry about your memory. I'm

trying to focus on this issue.

MR DEVRIES: Sure. It depends on the question that's asked

but - - -

HIS HONOUR: I'll hear from Ms Sofroniou.

MS SOFRONIOU: Well, of course the answer is that Mr Hanlon

won't breach his client's privilege. Whatever happens

after that is a matter of waiver or whatever's forced on.

As to the - I'm indebted to Mr Johnson's explanation.


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HIS HONOUR: Yes.

MS SOFRONIOU: His position, I don't understand any negligence

or recklessness pleaded in the matter.

HIS HONOUR: No.

MS SOFRONIOU: So I don't really know how you jump from notions

of not properly doing your job if I could use that

neutral terminology to the particular attitude of mine

that malice and fraud require and it's, of course - - -

HIS HONOUR: It can't be malice, malice is an ulterior motive

and he hasn't even pretended to - - -

MS SOFRONIOU: Yes, and the sort of fraud that say the real

property acts of the various states impute constructive

fraud is not here what's pleaded in my submission.

HIS HONOUR: Well - - -

MS SOFRONIOU: It's not an equitable fraud in other words.

It's a - - -

HIS HONOUR: One takes fraud as an allegation of fraud which

one assumes is a state of mind - - -

MS SOFRONIOU: That's right, Your Honour.

HIS HONOUR: - - - he intentionally putting a caveat on which

he knows has no value?

MS SOFRONIOU: It sounds, from what Mr Johnson says, that given

that he has put into evidence the matrix of

circumstances. He, in submission, seeks to make out that

that amounts to a certain - that that makes out his case

effectively. It doesn't appear to be a matter on which

Mr Hanlon's evidence can assist Your Honour in light of

what Mr Johnson has said.

HIS HONOUR: Well, I agree with that. Based on that I will not

invite him to or simply won't use my office to do that.

Where the matter proceeds from there is for Mr Johnson.


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MS SOFRONIOU: Please the court.

HIS HONOUR: Now, where do we proceed from here, Mr Johnson?

MR JOHNSON: Your Honour, I have a number of submissions but

I'll just keep to one. I would submit that on these

sorts of issues particularly the privilege point, an

advocate or any legal practitioner including of course

myself, we have two sets of duties. The duty to the

client and the duty as an officer of the court, and every

ethics materials I've looked at hundreds of years into

the past - - -

HIS HONOUR: Yes, I notice you're - - -

MR JOHNSON: - - -the obligation to - - -

HIS HONOUR: I notice you're holding an ethics book there are

you?


HIS HONOUR: I'm pleased to see that.

MR JOHNSON: Our obligations as officers of the court to the

administration of justice are paramount to obligations to

our clients.

HIS HONOUR: I'm pleased that you understand that.

MR JOHNSON: Thank you, Your Honour. Where we will go from

here is that I will issue a subpoena for those of

Ms Cressy's solicitors who have sworn affidavits in

support of her proceedings. I did have a - - -

HIS HONOUR: Mr Johnson, if you issue subpoenas which are an

abuse of the process of this court - - -

MR JOHNSON: Yes, Your Honour, as I - - -

HIS HONOUR: - - -and I decide as such - - -

MR JOHNSON: - - -my documents - - -

HIS HONOUR: Then you'll be liable for the costs on that on an

indemnity basis. So that you should bear in mind the


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helpful remarks I have advanced to you today concerning

my view as to the potential relevance, because firstly if

they are an abuse of the process I would set them aside

and order costs as it usually occurs. Given that you've

had advance notice of my preliminary views in relation to

the irrelevance of these subpoenas, you would be well and

truly on notice that no doubt if an application be made

on behalf of those subpoenaed for indemnity costs, if I

came to the view that subpoenas were being issued for an

ulterior purpose then I'd be obliged to refer these

papers to another organisation. I don't say that as a

threat but as a fair warning.

There are a number of aspects about your conduct in

this court as a self professed officer of it that give me

grave disquiet, including the wild allegations pleaded in

your counterclaim which you have not substantiated which

now you've walked away from today. Wild allegations made

from the Bar table from the privileged position of the

Bar table. Now, I'll say no more because it just simply

puts you on fair notice that if you continue this

behaviour, particularly if you abuse your right to

subpoena witnesses in circumstances where they're clearly

irrelevant to the issues in this case, then you put

yourself in jeopardy in issues as to costs and quite

possibly as to referral of these matters to appropriate

authority.

MR JOHNSON: I'm indebted to Your Honour.

HIS HONOUR: Just bear that steadily in mind.

MR JOHNSON: I'm indebted to Your Honour for the quality of

those warnings. Your Honour, may I say - - -

HIS HONOUR: In an endeavour to assist you to stay out of


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trouble, Mr Johnson, because you've enough talent that if

you apply it productively I'm sure you could well in your

chosen career. Now, Mr Johnson, what do you wish to do

now?

MR JOHNSON: I wish to make two quick points, Your Honour. The

first is that I hold myself highly accountable to the

highest standards of the profession. As a true

professional I do not discourage. I invite criticism

which may either be vindicated if I've done wrong, or I

may be cleared of and – and elevate my regard within the

profession. And I make the same in respect of – not only

in – as an officer of the court but also in the tax

jurisdiction. For example my frankness - of my answers

to my cross-examination on my income tax returns.

Secondly I wish to emphasise that the problem with some

of my pleadings is – and Your Honour caught it in a

nutshell; the conspiracy type aspect. I needed answers

to interrogatories out of a discovery process which never

happened because of the way the plaintiff ran the case,

in order to settle my pleadings. Also - - -

HIS HONOUR: That's a very damaging admission by you. If you

made allegations in pleadings of which you had no

evidence to support them, you as an officer of this court

know you had no right to do that.

MR JOHNSON: I did not say no evidence. I said that I needed

answers in order to settle my pleadings, Your Honour.

Also - - -

HIS HONOUR: Mr Johnson, you haven't answered my question.

What are you going to do now in relation to your defence

and your defence in counterclaim?

MR JOHNSON: I wish the - - -


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HIS HONOUR: Are you going to closeout your case or what are

going to do?

MR JOHNSON: I wish to make one more submission, again

emphasising the fact that it's only information that's

come to hand to me - - -

HIS HONOUR: If you're not closing your case today you'll need

to make a sensible application for an adjournment,

because I will proceed to require to close your case and

I'll hear Ms Sofroniou - - -

MR JOHNSON: I will do that presently, Your Honour. I just

want to point out that on the malice point, before I

request the closure I say that I can subpoena those –

it's four witnesses I intend to subpoena. Probably only

four given the quality of Your Honour's warnings to me.

I just want to point out that it has come to my attention

through affidavits I've received in these and the

proceedings in the other jurisdictions, from a

Mr Colin Twigg and Mr James Turnbull, that Ms Cressy has

been entirely funded by her lawyers in hundreds and

thousands of dollars of legal claims against me.

And further that any adjustment Your Honour would

make to my assets would – in these proceedings would

result in basically the commercial effect that I'd be

left with zero. Ms Cressy would be left with zero and

those litigation funders would not even make a full

recovery. Now, that is the ulterior motive which of

course I had no evidence of. That would be the malice,

Your Honour. I had no evidence of that until in – just

in the last few weeks, Your Honour. Now, I would ask

Your Honour to contemplate that and also I wish - - -

HIS HONOUR: I'm not contemplating anything. That allegation


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is again both wild and it's also it seems to me to be

irrelevant.

MR DEVRIES: It's also untrue, Your Honour.

HIS HONOUR: Yes, well, thank you for that, Mr Devries.

MR JOHNSON: That is the aspect that I would have liked to

cross-examined Mr Twigg and Mr Hanlon - - -

HIS HONOUR: Without wasting any further time, and I notice the

time is ten to 11, we'll achieve nothing today thanks to

your filibustering. What do you wish to do now?

MR JOHNSON: I wish for the matter to be – I'm not sure of the

correct terminology but put forward until a specific date

at Your Honour's convenience so that I can issue those

four subpoenas against those four witnesses.

HIS HONOUR: Who will you be subpoenaing?

MR JOHNSON: Absolutely subpoenaing Leanne Kelly, Elisabeth

Erasmus.

HIS HONOUR: Just a minute, yes.

MR JOHNSON: David William Hanlon.

MS SOFRONIOU: I object to that.

MR JOHNSON: Which be done promptly to allow my learned friend,

Ms Sofroniou, to object to that.

HIS HONOUR: There may be an application to set that side if I

do.

MR JOHNSON: Yes, Your Honour - - -

HIS HONOUR: - - - the consequences.

MR JOHNSON: I'm an indebted to you.

HIS HONOUR: You are.

MR JOHNSON: Extremely indebted, and also Police Officer

Jennifer Locke - - -

HIS HONOUR: What's she got to do with it?

MR JOHNSON: - - -police station. She can give evidence from


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having spoken with Ms Cressy and Mr Cockram I submit, as

to the nature of their relationship over a substantial

period - - -

HIS HONOUR: - - -what Mr Cockram did or did not say to a

Police Officer Locke is hearsay, inadmissible. If

Ms Cressy made any admissions I suppose that might have

some relevance that a domestic existed; a domestic

relationship, and bring a busy police officer to this

court and don't adduce useful evidence from her that

would be an issue that no doubt the police would take up

with you on issues of costs.

MR JOHNSON: I am extremely mindful of that Your Honour.

MS SOFRONIOU: Also, Your Honour, subpoenas for parties to

bring them to court. Mr Hanlon is in court. There is no

function whatsoever served by the document, he is a

party, he is present in court.

HIS HONOUR: I haven't invited him to give evidence but that

doesn't mean Mr Johnson can't now ask him to give

evidence and then it's a matter for you and Mr Hanlon.

MS SOFRONIOU: Indeed, all I am saying is I can spare him the

issue of the paperwork.

HIS HONOUR: All right. If that is so he can call Mr Hanlon

now if he wants to.

MR JOHNSON: I am not in a position, Your Honour, I am not

prepared or with the materials required to question

Mr Hanlon.

MS SOFRONIOU: Also in light of what Your Honour has said, I

understood I take Your Honour to take the view that in

calling him it would be irrelevant in light of the

concessions made.

HIS HONOUR: I would have to wait for the question.


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MS SOFRONIOU: Yes, indeed.

HIS HONOUR: I can't really rule in advance, I don't have the

capacity to do that.

MR JOHNSON: Your Honour, I require - - -

HIS HONOUR: I regard that as extraordinary after you have

outlined to me what you want to ask Mr Hanlon, after

discussing it you must have given very careful thought to

why you require a solicitor who is the respondent to very

grave allegations made by you against him to give

evidence, you now don't know what you want to ask him.

MR JOHNSON: Your Honour, I acknowledge - - -

HIS HONOUR: I regard that as outrageous, frankly.

MR JOHNSON: Your Honour, I acknowledge what my learned friends

have said that I need to be wary and the appropriateness

of my questions with depend upon - - -

HIS HONOUR: What I will do is - - -

MR JOHNSON: I would like to take time. I don't want to cause

a - - -

HIS HONOUR: How much time do you need to consider the

questions you are going to ask Mr Hanlon?

MR JOHNSON: I need to make sure that I have the materials with

me.

HIS HONOUR: How long do you wish - - -

MR JOHNSON: I would like to write the questions down and

provide them to Ms Sofroniou in advance and to Mr Devries

to make sure that I am not causing any undue anxiety for

Mr Hanlon, any tension between his duties to the client

and duties to the court.

HIS HONOUR: You can think through the questions you wish to

ask him, then you can call him to give evidence or get

this over with.


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MR JOHNSON: I have also - - -

HIS HONOUR: We have lost enough time today.

MR JOHNSON: I also wish to view - - -

HIS HONOUR: This is my court. If you like I will stand the

matter down and give you sufficient time to think

carefully through the questions you are going to ask him.

MR JOHNSON: I need (indistinct) transcript.

HIS HONOUR: If Mr Hanlon is good enough to go into the witness

box and you ask him to do so and in that he must

understand that I do not make any requirement of you to

do that at all, and I would not draw any adverse

inference against him if he were to decline to do so.

But if he was good enough to do that, then it would seem

to me, having foreshadowed that, having made wild

allegations against him, the least you could do is call

him now. You must know what issues you wish to approach

with him.

MS SOFRONIOU: He may indeed decline, Your Honour, I have not

asked him.

HIS HONOUR: I understand that.

MS SOFRONIOU: Thank you, Your Honour.

MR JOHNSON: Your Honour, the questions need to be put

delicately for the reasons that I've said. I would like

an opportunity to discuss them, forgive me, Your Honour,

with Ms Sofroniou, perhaps we can have a discussion that

might obviate the need whatsoever - - -

HIS HONOUR: I doubt Ms Sofroniou will wish to discuss the

matters with you.

MS SOFRONIOU: No.

HIS HONOUR: No, she does not, you can sit down and think them

through and I will return to court in - I will give you


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half an hour which is more than generous. If you wish to

call Mr Hanlon you will then call him. If you decline to

call him then, and in the meantime if we adjourn the

case, and then subpoena him I will bear that in mind.

(Indistinct) the subpoena Mr Johnson.

MR JOHNSON: I understand that Your Honour and it may - - -

HIS HONOUR: It is now - by the court clock it is four minutes

to 11, I will adjourn until 11.30 and that will give you

an opportunity to gather your thoughts carefully and then

we will see where we go from there, all right.


HIS HONOUR: I am not going to waste the whole of today,

Mr Johnson (indistinct).


HIS HONOUR: I will be back exactly by the court clock at

11.30.


(Short adjournment.)

HIS HONOUR: Mr Johnson.

MR JOHNSON: Thank you, Your Honour. Your Honour, I note that

Mr Hanlon is in court today and he has been in court

every day of the trial.

HIS HONOUR: Yes, he has.

MR JOHNSON: One would expect him in court when we resume in

the New Year as well. When we resume in the New Year I

am optimistic or positive at least that I will be

represented by senior junior and/or senior senior

counsel. I will have given up my instructing solicitor

had to someone, perhaps the President of my Law

Institute, who is informed of all of these proceedings

and has given me valuable support in that capacity in


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respect to these proceedings to date. Now, my anxiety to

get justice and judgment pre-Christmas if possible, I

made that very clear on the first day of the trial and

even more clear yesterday when I suggested maybe

even - - -

HIS HONOUR: Actions speak louder than words, Mr Johnson.

MR JOHNSON: Absolutely, Your Honour, I have truncated

my - - -

HIS HONOUR: You have shown no desire to have this case

concluded before Christmas, you have wasted the court's

time including two hours today. Now proceed and tell me

what you have.

MR JOHNSON: Given all of that and my anxiety to - willingness

to clip witnesses and case, we have lost that opportunity

for justice and judgment pre-Christmas. Given my

expectations of being a client fully represented when we

resume in February, if I were to ask Mr Hanlon now to

enter the witness box I think I would further

unnecessarily clip my case. I submit that it would be

better for Mr Hanlon to give evidence with or without

subpoena, I am ask him earlier in the New Year, along

with the other witnesses that will be called and Your

Honour, as will I, will have the benefit of hearing from

eminently qualified defence counsel at that time.

HIS HONOUR: Tell me this, you have just foreshadowed you are

going to have two silks and a junior to defend you.

MR JOHNSON: No, no.

HIS HONOUR: You have protested throughout this case you

haven't got the financial means to have even a solicitor

here for you.

MR JOHNSON: I personally don't, Your Honour, but given recent


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articles in the newspapers which I have circulated to my

learned friend and discussions, I am confident that I may

be able to tap into perhaps the pro bono barristers

scheme. I have had discussions with barristers and/or

Legal Aid funding for these and the second proceedings.

We also have an opportunity over the summer - - -

HIS HONOUR: So what is your application? Are you calling

Mr Hanlon today? Are you requesting him today to go into

the witness box to give evidence on your behalf?

MR JOHNSON: I am not going to do that, Your Honour, I am going

to request that the matter be put forward - - -

HIS HONOUR: Just a moment, I am making a note of that. So you

decline the opportunity to request Mr Hanlon to give

evidence.

MR JOHNSON: The opportunity will present itself naturally, I

may not need to issue a subpoena in February. We have

some time for discussions between the parties - - -

HIS HONOUR: You have had the opportunity today to at least ask

Mr Hanlon to go into the witness box, you have not taken

that opportunity, I have made a note of that. That will

no doubt be a relevant circumstance should you see fit to

seek to subpoena Mr Hanlon next year.

MR JOHNSON: I appreciate that, Your Honour.

HIS HONOUR: Still, notwithstanding your best efforts to burn

up the day with achieving nothing, we still have another

three hours to go, three and a half hours. I am sure if

you had called Mr Hanlon, Mr Hanlon did go into the

witness box you could complete his evidence.

MR JOHNSON: I would prefer - - -

HIS HONOUR: You must know what you wish to adduce from him.

You would not have delivered this counter-claim without


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having some idea of what you were doing.

MR JOHNSON: I would prefer Mr Hanlon's evidence if he even

needs to be called. We may have discussions between

parties that may obviate or reduce the duration of any

proceedings - - -

HIS HONOUR: I doubt it, nothing seems to have occurred in that

regard so far. You're running out of excuses,

Mr Johnson, for me to other than draw a conclusion you

are deliberately wasting today and that will be reflected

in order for costs. Today is wasted because of this.

MR JOHNSON: I will be asking also if - - -

HIS HONOUR: We achieved nothing today due to your obfuscation

obviously, the other side can't be required to bear the

costs of that. Now, bear that in mind while you continue

to waste the time, busy time, much needed time of this

court.

MR JOHNSON: I will be - - -

HIS HONOUR: There are people in greater need for justice than

you, and you have eaten up the time of a judge,

barristers and particularly of this court and the

resources of this court with this chronic constant serial

time wasting and it is quite unconscionable.

MR JOHNSON: With respect, Your Honour, I am conscious - - -

HIS HONOUR: Now, proceed with your defence. Are you going to

call any more witnesses today?

MR JOHNSON: Not today, Your Honour.

HIS HONOUR: Are you closing your case today?

MR JOHNSON: No, Your Honour, I wish to call the - - -

HIS HONOUR: So you are not in a position to proceed with your

defence today?

MR JOHNSON: No, Your Honour. I would submit that there is no


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need - - -

HIS HONOUR: I will hear from the other side.

MS SOFRONIOU: We are in the courts hands, Your Honour, we

request costs of today.

HIS HONOUR: I could require him to close, if he was

represented I could require him to close. 10 years ago I

could have required him to close - - -

MS SOFRONIOU: Sorry, Your Honour may have misheard me, I said

absolutely that's right, all we seek is the costs of

today.

HIS HONOUR: The regrettable matter is the whole of today has

been wasted. Certainly I will order that costs be paid

on - and no doubt you seek the same costs Mr Devries?

MR DEVRIES: I do and I also seek the payment of them as a pre-

condition of this matter proceeding on the adjourned

date, Your Honour.

HIS HONOUR: I am tempted to make that order but I won't. What

basis do you seek them?

MR DEVRIES: Sorry, seek that part of the order or seek costs?

HIS HONOUR: No, what - - -

MS SOFRONIOU: We seek them on an indemnity basis, Your Honour,

that's the only way that it can make up the - - -

HIS HONOUR: I agree with that.

MR DEVRIES: I apply Your Honour.

HIS HONOUR: Yes, I will accede to that application.

MS SOFRONIOU: Excuse my not knowing this, Your Honour, do we

require an order that they be payable forthwith or would

that be in the normal course?

HIS HONOUR: I would not stay them but I would not make it a

precondition of anything, I could not do that. I could

do it but it would have unfortunate repercussions.


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MS SOFRONIOU: On that basis that means that the costs are only

assessed at the end of the trial. I am not talking about

making costs payable as a precondition to the matter

proceeding. I am wondering if they can be taxed now or

whether they - - -

HIS HONOUR: I think the Taxing Master would allow that,

wouldn’t they, that's probably more a matter for the

Taxing Master.

MS SOFRONIOU: In some places one has to make that as an

explicit order, I'm sorry if it is unnecessary Your

Honour.

MR DEVRIES: I'd be asking Your Honour to fix the costs of

today of certainly the plaintiff and the - - -

HIS HONOUR: If you're in a position to advise me, not as a

guesstimate but give me the details of those costs, I'd

be amenable to do - I'd better not. I don't think I'll

do that, Mr Devries. Mr Johnson, I see no basis upon

which you can resist an order for indemnity costs based

on the fact that today is now, on my calculation, the

sixth day on which you've been presenting your defence.

You've called five witnesses and yourself. You've

had plenty of time to organise your witnesses. As I have

repeatedly stated, you have shown much more familiarity

with the court processes and with the technique of

calling witnesses than you claim to have. You knew that

the case you would be required to call evidence today.

Indeed, last night you'd foreshadowed closing your case

today if Mr Cockram did not turn up.

You have obviously changed your mind and I strongly

suspect it's for tactical purposes to forestall the

application being made on behalf of the second and third


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defence of counterclaim. You have totally wasted this

court's time. That regrettably cannot be a matter of

recovery.

MR DEVRIES: The - - -

HIS HONOUR: I am still speaking.

MR DEVRIES: Sorry, Your Honour.

HIS HONOUR: But you have caused the parties, through no fault

of their own, to incur considerable costs. Your conduct

is such that you are fortunate that I'm only making an

order for costs on indemnity basis. And that's what I

propose to do. Mr Devries, what did you want?

MR DEVRIES: I apologise for interrupting, I thought you were

looking to me, that's why I - - -

HIS HONOUR: No, I was just waiting for some peace and quiet.

It's unusual for people to talk across a judge while he's

delivering a ruling. Everything's happened in this case

so - - -

MR DEVRIES: My instructor and I both apologise for that, Your

Honour. My instructor was reminding me of something. My

costs of today, my brief is two thousand - - -

HIS HONOUR: No, I think it's better though if you're taxed.

MR DEVRIES: If Your Honour pleases. The other matter, Your

Honour, that I raise to - I'd better wait until Your

Honour determines what is to happen with this matter now.

I make the application in respect to one property.

HIS HONOUR: I intend to adjourn the matter to 9 February,

adjourn part heard. I order that the defendant,

Mr Harold James Johnson, pay the costs of the plaintiff

on a solicitor/own client basis of today. I'll order

that the defendant, Harold James Johnson, pay the costs

of the two defendants to the counterclaim - - -


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MS SOFRONIOU: No, earlier if we could please, Your Honour.

HIS HONOUR: I think realistically that any subpoenas - I'll

direct that any further subpoenas be issued on behalf of

the defendant be issued and served - - -

MR JOHNSON: May I speak on this, Your Honour?

HIS HONOUR: Yes?

MR JOHNSON: There is the Christmas interval and people are

hard to catch and there is a natural expiry date on the

subpoena process anyway.

HIS HONOUR: Yes.

MR JOHNSON: I'm happy to, rather than - not even waiting until

they've been formally served, I'm happy to let my learned

friends know and provide them with copies of subpoenas

when I file them with the court, Your Honour.

HIS HONOUR: He's got a subpoena in five days beforehand but I

will direct that the defendant give notice in writing to

the solicitors for the plaintiff and solicitors for the

second and third defendants on the counterclaim of the

names of any further witnesses who the defendant intends

to call in this proceeding no later than 23 January - - -

MS SOFRONIOU: Your Honour, is there any reason why they can't

be done - it's not Christmas tomorrow - by the end of

next week, 19 December if that please the court.

MR JOHNSON: Your Honour - - -

MS SOFRONIOU: Because then we'll be away but we'll know what

preparation we have to come back to. It's not much point

finding out for the first time after all of the

time - - -

HIS HONOUR: Can you do that, Mr Johnson?

MR JOHNSON: I would prefer that not to be in the orders but I

would do that as a courtesy, Your Honour. I'm happy to


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issue - - -

HIS HONOUR: I'm sure you will. I'll make it 15 January.

MS SOFRONIOU: And I'm grateful to Mr Johnson, that would be

helpful.


HIS HONOUR: Mr Johnson, you'll have to be very careful in your

consideration as to who you subpoena.

MS SOFRONIOU: Your Honour, if I may that 15th - - -

MR JOHNSON: Indeed, Your Honour.

HIS HONOUR: Bearing in mind, careful were the remarks I

addressed to you before.

MS SOFRONIOU: I beg Your Honour's pardon.

HIS HONOUR: That's all right.

MS SOFRONIOU: 15 January is the date of formal notification.

Is there a due date for them actually to be filed and

served in Your Honour's direction? Is that the same

date?

HIS HONOUR: No there isn't – they have to be filed and served

five days before the hearing under the rules, do they

not?

MS SOFRONIOU: Yes, subject to Your Honour's direction earlier

I would have thought, or such earlier time as Your Honour

minds doing it.

MR JOHNSON: Your Honour, it's a notification point, and I

envisage as a courtesy, but not in the orders, informing

my learned friends well before 15 January.

HIS HONOUR: I want to make sure that all the witnesses don't

come here late.

MS SOFRONIOU: It's not that. Yes - no I'm grateful to

Mr Johnson's efforts. What I'm saying is we don't want

to come back and find that - - -


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HIS HONOUR: What's the rule?

MS SOFRONIOU: They've not been served or filed.

MR JOHNSON: It's Order 42 I believe, Your Honour.

MS SOFRONIOU: I understood they can't be required to be

present if they're given less than that notice.

HIS HONOUR: Less than five days notice.

MS SOFRONIOU: But Your Honour can make a direction - - -

HIS HONOUR: Five days is sufficient, is it not?

MS SOFRONIOU: It's really - - -

MR JOHNSON: My learned friend will be notified - - -

MS SOFRONIOU: - - -the courts.

HIS HONOUR: Just a moment.

MS SOFRONIOU: It's the court's convenience I'm thinking of.

But if on, with those five days we come back on the 9th

to find that something's gone wrong with the service,

they're unaware, they're unavailable, it's more that that

I'm trying to have regard to. If the subpoenas have gone

out.

HIS HONOUR: What direction should I give then?

MS SOFRONIOU: That subpoenas be filed and served on or

before - - -

HIS HONOUR: What's the last dates on which you can do that?

MR JOHNSON: Your Honour, we've already had problems with

Mr Wittekind, and I doubt that lightening will strike

twice. I would just ask that the, that the normal orders

follow, and as a courtesy I'll inform my learned friends

but - - -

HIS HONOUR: Or directive issue - - -

MR JOHNSON: - - -and on the surface - - -

HIS HONOUR: I'll direct that any subpoena to be issued by the

defendant to any further witnesses be issued and served


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no later than 31 January.


HIS HONOUR: You'll need to issue them before then, because the

terms of that order, issued and served. Do you follow

that?

MR JOHNSON: I'm grateful for that, Your Honour, thank you.

HIS HONOUR: Are there any other trial directions I can give?

Probably not.

MR DEVRIES: The only other order I'm seeking Your Honour, is

with respect to 10 Hawkhurst Court, Hoppers Crossing.

That's not a trial direction, but is it convenient to

raise it with Your Honour now?

HIS HONOUR: Yes.

MR DEVRIES: Your Honour, I'm instructed that all of the other

properties that are the subject of these proceedings are

either in the hands of mortgagees, about to go in the

hands of mortgagees, or subject to – in the process of

being subject to sale. The only properties that are

excepted from that are the Breezy Street, Brunswick

properties which probably nothing needs to be done, and

10 Hawkhurst Court, Hawkhurst Street, Your Honour.

HIS HONOUR: What's the nature of your application?

MR DEVRIES: The property forthwith sold out of court,

Your Honour, and the proceeds – effective of the proceeds

after payment of the costs of sale and the mortgage.

HIS HONOUR: What's the basis of that application?

MR DEVRIES: To protect the property, Your Honour, and to

protect the proceeds, and also – that is the application,

effectively that's the application that - - -

HIS HONOUR: What's the material on which I can make such a

peremptory order without having decided this case?


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MR DEVRIES: It's only the nature of the evidence that

Your Honour's had before you.

HIS HONOUR: I have little evidence. That's the – it's really

been not a problem that the property was purchased,

settlement has taken place, on my recollection it means

that (indistinct).

MR DEVRIES: Your Honour, can I just - - -

HIS HONOUR: My recollection is that in fact the debt reduced

on that.

MR DEVRIES: Your Honour, perhaps there's another - - -

HIS HONOUR: Is there any evidence that that is at the moment a

property that's in danger, admissible evidence?

MR DEVRIES: Your Honour, perhaps I can do it this way with

respect. There is a summons that's been referred to

Your Honour, that covers 10 Hawkhurst Court.

HIS HONOUR: Yes.

MR DEVRIES: Issued – that was a summons.

HIS HONOUR: Mr Johnson. That type of exclamation does not

assist, as it doesn't affect me other than irritate.

MR DEVRIES: Dated 19 August 2008, Your Honour.

HIS HONOUR: 19 August?

MR DEVRIES: Yes, Your Honour.

HIS HONOUR: It's the summons to - - -

MR DEVRIES: It may be – it's also I'm told in the court book

at p.46.

HIS HONOUR: That might be easier to find. Was that you

summons seeking orders that the defendant give to the

mortgagee possession?

MR DEVRIES: Yes.

HIS HONOUR: That the mortgagee sale - sellage. The mortgagee

isn't here. I can't really join them in an order.


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MR DEVRIES: My instructions are to consent to all the orders

sought in respect to 10 Hawkhurst Court, Hoppers

Crossing. If Your Honour has - - -

HIS HONOUR: Where's the AMP, they're not in - - -

MR DEVRIES: I have a difficulty with the absence of the AMP.

HIS HONOUR: It's not a difficulty, but they might not want to

take possession.

MR DEVRIES: I was going to come to that.

HIS HONOUR: Or does the possession have duties? They

mightened want to take them on in this case.

MR DEVRIES: I kind of see that. I was going to say - sorry I

keep getting distracted from my right Your Honour.

HIS HONOUR: Yes.

MR DEVRIES: That can be covered in my respectful submission by

an additional order that the AMP have a liberty to apply

in respect to the making of those orders. Or the other

way is that Your Honour could change AMP Bank effectors

be requested, but my client consents to the orders in

respect to - that are sought in respect to 10 Hawkhurst

Court, Hoppers Crossing.

HIS HONOUR: At the moment the status of your client is the

person who is simply making a claim for an (indistinct)

interest, or alternatively for an adjustment of the legal

rights. I would have power to make orders to protect the

status quo in that respect, (indistinct). I have power

to protect the status quo in that respect. I doubt that

that power, particularly in this stage of the trial,

would enable me to direct a mortgagee to take possession

and if the mortgagee was here today, had been brought

here today, they might support such an application.

You'll be heard in a moment.


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MR JOHNSON: Thank you Your Honour. I'm indebted Your Honour.

HIS HONOUR: That's all right Mr Johnston. You don't have to

jump up and down. Otherwise you're asking me - if you

want some variant on that, it would have to be a

direction to the defendant to sell the property, which

would seem to me to invite difficulty.

MR DEVRIES: The alternative Your Honour - - -

HIS HONOUR: At this time of the year I'd be very doubtful that

with the proper auction period today is 12 December if

I've got it right. You couldn't sell before Christmas.

You wouldn't want to sell it in January. The earliest it

could be sold I would have thought responsibly would be

the end of February.

MR DEVRIES: The only alternative that would protect my

client's interest Your Honour would be that an order

along the lines that should the mortgagee take possession

and sell the property that the net proceeds of sale be

paid into court.

HIS HONOUR: Yes. I'd be prepared to make that order

obviously. I think that's probably the order that Mr -

yes that's the order that Mr Johnson came here to ask

for.

MR DEVRIES: And a further order of injection preventing

Mr Johnson from dealing with or further encumbering that

property.

HIS HONOUR: Yes, I'd be prepared to protect whatever remaining

equity in the property there is. In the meantime I'll

hear from Mr Johnson, but it seems to me those are two

orders which ought to be made.


MR JOHNSON: Thank you Your Honour. I object to the need for


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any orders because the status quo's already protected.

What my learned friend - - -

HIS HONOUR: How is the status quo protected?

MR JOHNSON: May I explain Your Honour? My learned friend's

asking for judgment without the trial concluding just

like in the practice trials before the Practice Court.

HIS HONOUR: Well he won't get that, but what he's, and I've

already indicated - - -

MR JOHNSON: Yes.

HIS HONOUR: - - - that I will not force a sale, what

Mr Johnson I think having rejected Mr Devries's

application without needing to call on you, his

alternative application is for an order that if the

property is sold before the case comes back on for trial,

that the net proceeds of any such sale be paid into court

or the court - - -

MR JOHNSON: I - - -

HIS HONOUR: - - - that you would be amenable to that

(indistinct).

MR JOHNSON: I submit totally unnecessary Your Honour.

HIS HONOUR: Yes.

MR JOHNSON: My summons I said right from the very start of the

trial, not required. I would not have taken that out if

the plaintiff's solicitors - or by the court, I'd

received information that this had been set down for

hearing on 2 December anyway. I totally withdraw any -

any desire for any orders under that summons. I've said

that consistently from the start of the trial.

HIS HONOUR: All right. Having done that - - -

MR JOHNSON: The status quo is protected - - -

HIS HONOUR: - - - having done that do you say you oppose any


Cressy

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order that if the property is sold in the meantime the

proceeds be paid into court?

MR JOHNSON: The status quo's protected Your Honour.

HIS HONOUR: Why do you oppose that order?

MR JOHNSON: Pardon?

HIS HONOUR: What would be wrong with that order?

MR JOHNSON: The status - because if at the conclusion of the

trial the plaintiff doesn't make out her claim, I get

order for - I get judgment and costs in my favour, and

that's a vexed issue. I would have suffered harm in the

interim, in the interlocutory process, as I have in the

Practice Court trials before Mr Justices Cavanough and

Hansen, and the plaintiff is a lady without means, which

is undisputed by the parties to meet any orders for

compensation. Now Mr Devries it seems to have slipped

his mind I guess Your Honour that there's no risk of in

his parlance Mr Johnson running away with the cash

because the property is protected by the plaintiff's

original caveat.

Also I understand that Mr Devries's instructors also

have an equitable charge or whatever they call the thing

and a caveat on the total as well. There's simply no

need to disturb the status quo.

HIS HONOUR: Yes, well the latter point I'll raise with

Mr Devries. Mr Devries, aren't you protected by the

caveat? The property can't be sold with the caveat on

it.

MR DEVRIES: It can't be sold Your Honour, but if there is no

requirement for the money to be paid into court, and my

client doesn't release the caveat because the proceeds

aren't going to be paid into court, then she runs the


Cressy

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risk of first of all being put in the choice position of

the money - the net proceeds being paid to Mr Johnson and

Your Honour could understand that she doesn't trust

Mr Johnson or being liable for damages for frustrating

the sale. That's the difficulty that the - the caveat

protects her, but doesn't - - -

HIS HONOUR: I don't think that that rationale would justify me

making - there is an alternative rationale and that is

that if in the meantime the commercial necessities are

that the property should be sold, it would seem to me to

be desirable that the property be sold and the proceeds

paid into court, and that would require your client to

lift the caveat. On that basis I would be disposed to

make that order.

MR DEVRIES: If Your Honour pleases.

MR JOHNSON: Your Honour, may I be heard? That would happen in

the ordinary course without an order, and is exactly what

happened almost a year ago with the Lisa Court property,

Your Honour.

HIS HONOUR: Yes, thanks.

MR JOHNSON: Thank you, Your Honour. I oppose that - - -

HIS HONOUR: What's the next page of that order? What's - - -

MR DEVRIES: "That in the event that the property situator

known as 10 Hawkhurst Court, Hoppers Crossing in the

State of Victoria be sold". Sorry, it should be I

presume, "Until further order. The proceeds of the sale

of that property after payment of the reasonable costs of

sale, and the moneys secured by the mortgage thereupon be

paid into court".

HIS HONOUR: So, "The proceeds after payment of the reasonable

costs of sale" - - -


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MR DEVRIES: And, "The moneys owing to the mortgagee".

HIS HONOUR: Yes, yes, that's your view is it, that you

request?

MR DEVRIES: If it's necessary that there be a further order

requiring my client to provide a withdrawal of caveat in

registrable form". If that gives anyone any comfort you

should consent to that as well. That's - - -

HIS HONOUR: It could become problematic if the house is sold

for $15.

MR DEVRIES: Yes, Your Honour. Perhaps I - - -

HIS HONOUR: I will until the hearing and determination of this

case - - -

MR JOHNSON: May I be heard, Your Honour? I believe the two

need to go together because I submit that it's

unnecessary for Your Honour to make that order, but

making that order – it requires – it's not totally all

encompassing. It requires cooperation from one party or

the other. As a general principle I say the plaintiff is

protected by her caveat and by her lawyers' caveat, so

perhaps it's unnecessary to call on the court to make the

first part of the order? But having made the first part

just like Justice Hansen and Justice Cavanough did in the

Practice Court trials, you would have to make the second

part - - -

HIS HONOUR: What's the order you say I should make? What's

the nature of the order? If you're happy with it I'll

make it.

MR DEVRIES: "That contemporaneously with the completion of the

sale of that property and the payment of the net proceeds

into court, the plaintiff shall cause to be provided in

registrable form a withdrawal of caveat lodged on her


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behalf upon the title of that property". And an

identical order except where it's got, "Plaintiff". It

will be, "The plaintiff's solicitors", in respect to any

caveat they may have.

HIS HONOUR: I'll hear from Ms Sofroniou on that.

MR DEVRIES: Sorry, it's the plaintiff's solicitors not – I'm

not talking about the - - -

HIS HONOUR: I'm sorry, and the plaintiff's solicitors do what?

MR DEVRIES: Do the same thing. You have a wording almost the

same but - - -

HIS HONOUR: I may be totally confused but I don't know what

you're – what do you want me to say? I'll only make this

order if you – the interests of your client wish me to do

it.

MR JOHNSON: May I speak, Your Honour?

HIS HONOUR: No. Just a moment.

MR DEVRIES: Another form would be, "Contemporaneously with the

complete" - - -

HIS HONOUR: Mr Devries, I'm not interested in other forms.

Could you – I'm totally confused as to what you want.

Can you work out what you want?

MR DEVRIES: It's the wording I've given to Your Honour and a

further order in exactly the same words except that

instead of, "Plaintiff", it's, "The plaintiff's

solicitors", provide a withdrawal of any caveat they have

on the property.

HIS HONOUR: Mr Turnbull has?

MR DEVRIES: Yes. Mr Johnson says that he has - - -

HIS HONOUR: I'll make those orders.

MR DEVRIES: May it please, Your Honour.

HIS HONOUR: So firstly until the hearing and determination of


Cressy

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this proceeding or further order I shall order as

follows. Firstly in the event that the property a

10 Hawkhurst Court, Hoppers Crossing be sold. The

proceeds of the sale of that property after payment of

the reasonable costs of sale and after payment of any

moneys owing to the mortgagee be paid into court.

Secondly contemporaneously with the completion of the

sale of the property and the payment of those moneys into

court. The plaintiff shall provide in registrable form a

withdrawal of caveat in respect of the caveat lodged on

her behalf upon the title of the property. Thirdly

contemporaneously with the completion of the sale of that

property the plaintiff's current solicitors shall provide

in registrable form a withdrawal of caveat in respect of

any caveat lodged by them on the title of the property.

MR DEVRIES: Then there was going to be the injunctions about

further dealing with property - - -

HIS HONOUR: How can I do that if he's going to sell it? You

can't have your cake and eat it - - -

MR DEVRIES: Yes. I won't take the matter further.

HIS HONOUR: Logically the two are inconsistent.

MR DEVRIES: That's only if he does – sorry, yes. I won't take

the matter further, Your Honour.

HIS HONOUR: It's been a long week.

MR JOHNSON: Might I speak briefly, Your Honour?

HIS HONOUR: The word briefly?

MR JOHNSON: I am so grateful, Your Honour.

HIS HONOUR: - - -unusual - - -

MR JOHNSON: This is the trouble I've had trying to speak

commercially with these people for ages. They've opened

the door now for me to sell the property for $15 as you


Cressy

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said. I of course won't take up that opportunity. No

such orders were required on the sale of the Lisa Court

property. No such orders have been required here. I've

got no problem with the orders as made. I will not be

taking advantage of those - - -

HIS HONOUR: You have no problems with the orders, then there

you are. No one's got a problem with them. I have a

reservation about them but no one else does, so that's

all - - -


HIS HONOUR: Now, is there anything else? Mr Johnson, you have

done yourself no good today. As I keep saying to you,

you are an intelligent man, you know when you wish to

focus on this case in your own interests to put, you

address the issues as pleaded and at large in this case,

all right. When we return I expect you to do so. If you

don't do it there are two problems or a number of

problems. One is you will be failing to address issues

which I will be deciding and that would do you no good,

obviously, it is important you focus on those issues,

keep your mind firmly planted on them so you do yourself

justice on them. Secondly, if you continue to waste time

it is reflecting very badly on your credibility.

Thirdly, it will affect any orders for costs I make at

the completion of this proceeding whether you win, lose

or draw. Do you follow that?

MR JOHNSON: I am indebted to Your Honour, I follow the

directions.

HIS HONOUR: I cannot give you any stronger advice than that, I

suggest that you think hard about that. You have over

the last nine days I would suggest wasted the bulk of it


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by failing to listen to and follow the admonitions that I

have given you, which believe it or not are in your best

interests, as well in the interests of this court in

completing this case and the interests of all the

parties.


HIS HONOUR: Yes, there were some subpoenaed documents

yesterday that were released, I think they were to you

first Mr Devries.

MR DEVRIES: My instructor will deliver them to court by one

o'clock, Your Honour, I think they are still being

photocopied.

HIS HONOUR: Yes, well, bear in mind the undertaking given, I

expect documents to come back safely.

MR DEVRIES: Absolutely, Your Honour.

MR JOHNSON: Thank you, Your Honour. On a similar note there

was an exhibit that I handed up in re-examination that

page 2 was missing. I have the full of that document,

it's not signed, it's a filed copy but it has the

missing - - -

HIS HONOUR: Yes, that's at 58, isn't it, now can you show it

to Mr Devries and Ms Sofroniou to ensure that they are

content with it. If they are then that can be

substituted, the existing 58.

MR JOHNSON: This one is unsigned, I guess it would be okay for

me to sign it now.

HIS HONOUR: What are you providing?

MR JOHNSON: Perhaps it's a second exhibit as it is a file copy

rather than a signed original Your Honour.

MR DEVRIES: The original exhibit missed a second page, Your

Honour, and what Mr Johnson is seeking to do is to


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provide a complete version of that fax. I have no

objection to that.

HIS HONOUR: As a substitute or a - - -

MR DEVRIES: As a substitute, Your Honour.


HIS HONOUR: It more affects Ms Sofroniou's client than yours,

I think.

MS SOFRONIOU: Yes, and I understand that it falls under Your

Honour's general ruling in respect of this.

HIS HONOUR: Yes. I receive the fax for the communication, not

the - - -

MS SOFRONIOU: Evidence it's contents.

HIS HONOUR: Evidence it's contents. There was attached to the

other exhibit, that is of Mr Anderson and Ms Newcombe.

What I think I will do is make this into another exhibit.

MS SOFRONIOU: Perhaps 58A, Your Honour.

HIS HONOUR: Yes, thank you.

#EXHIBIT 58A - Complete filed copy of the letter of the

defendant to Mr James Turnbull, Berry

Family Lawyers, dated 27/03/08.

MR JOHNSON: As Your Honour pleases. Minus the bundle of

enclosures. It was a welcome letter with a whole lot of

briefing materials for Mr Turnbull, Your Honour.

HIS HONOUR: Thank you. Anything else? Otherwise we will

adjourn until 9 February.

ADJOURNED UNTIL MONDAY 9 FEBRUARY 2009

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Documents

Brothel Gate Day 10 Full Day