Brothel Gate Day 13 AM Only

8/14/2019 Brothel Gate Day 13 AM Only

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MR DEVRIES: The matter is still proceeding Your Honour.

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

we up to?

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

I consulted my affidavit of 2 February this year and

there are a number of witnesses listed I was considering

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

them in submissions. There are three on that list

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

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

of course is Mr Devries.

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

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

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

oppressive vexatious abuse of court proceedings issuing

this statement of claim. It was issued to proffer their

caveats that are referred to in my statement of claim and

I realised last night Your Honour, the whole purpose of

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

filed and advised to the registrar of titles - - -

HIS HONOUR: Have you got some headphones on - have you got

headphones on?

MR JOHNSON: I'm sorry Your Honour, I forgot to take these off,

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

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

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

will raise with the Court of Appeal quite naturally. I

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

in that handful of words written in a handful of minutes

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

nights, of the vexatious caveats, because that's

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

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basically where we were at that point. I had at that

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

attaching to all of my properties except for the Altona

one where the plaintiff was living as she had long term

under our child support arrangements, referred to in my

counterclaim.

I did not wish to frighten her, even though that

caveat attaching to the property was as vexatious as all

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

cause notice issued by the registrar to her lawyers to

either show cause issue proceedings or remove the caveat.

The proceedings were issued solely because the clock was

ticking Your Honour, on those vexatious caveats as

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

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

even to this day an 89 application against that caveat.

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

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

Ms Cressy with the impression I was trying to throw her

out on the street.

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

that as highly defamatory, perhaps even criminal

defamatory and I understand the privileges attaches to

advocates are only in respect of privilege from civil

suit within seven days within the immunities in the

precincts of the court, not the criminal things that are

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

senior detectives from the Purana Taskforce as soon as

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

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

intimidate me, I submit that that is contempt of this


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court Your Honour.

HIS HONOUR: Yes well - - -

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

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

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

subject of enquiry by other organisations but that's not

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

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

address them. What do you intend to do today in relation

to your case, you've called witnesses, the witnesses thus

far you have called you've managed to stay relevant. Now

it's the one that you threaten to call, subpoena to call

that you constantly wish to push the case off into areas

which are not for me to decide.

Late yesterday evening we discussed calling

Mr Hanlon, I indicated that this is not an occasion where

I as trial judge would direct or require a party sitting

in court to give evidence for the other side because of

the way this case has been conducted and because of the

allegations thus far unsupported and made against

Mr Hanlon. I left the matter in your hands last evening,

what have you done about Mr Hanlon?

MR JOHNSON: Your Honour, I haven't finished my preliminary

points and I'm wanting to come back to that, there's a

more serious preliminary point I need to make. I wish to

know whether the defendants by counterclaim intend to

have Mr Hanlon, Mr Turnbull and Mr Devries call this

evidence, witnesses to give evidence-in-chief so I can

cross-examine them. If there's no intention to do that

my view is that the lack of evidence, real evidence to

support the client's case, her lack of credibility which


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is demonstrated by the three bags of loot I brought in

yesterday, if not previously, by the testimony of Senior

Detective Jennifer Locke of the investigation into people

who claim in the witness box that they either didn't know

each other or couldn't remember. Very specific on

remembering the house they lived in for - - -

HIS HONOUR: She also had a clear recollection that you and

Ms Cressy presented to her as a couple.

MR JOHNSON: Your Honour, again as I said yesterday afternoon

and I'm grateful I did, I did not even have time to

prepare a list of questions, it didn't occur to me. She

saw as in late 2003 early 2004, she never saw as in a

family context, there were never children around, never

came to my house where Ms Cressy was residing under my

roof because the Salvation Army had kicked her out at

Illouera Avenue, she didn't have anywhere else to go

except whatever nesting activities she had on the go with

Mr Cockram. A more experienced advocate, bearing in mind

this is my 11th day of my life as an advocate Your

Honour, 11 days as against - I did a head count

yesterday, six lawyers all almost accredited family law

specialists - - -

HIS HONOUR: Mr Johnson, I will in a moment direct you to sit

down and close your case if you do not address relevant

issues. You have wasted this court's time, valuable time

and scarce time full of blustering, deliberately wasting

time and protracting this proceeding. To assist you and

importantly to try to complete these proceedings I have

tried time and time and time and time again to direct you

to the issues. Are you going to call witnesses today or

you're now sitting down to close your case?


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MR JOHNSON: Yes I am calling witnesses today Your Honour - - -

HIS HONOUR: Who do you call.

MR JOHNSON: Today Your Honour, I must - I must respond - - -

HIS HONOUR: Who do you call?

MR JOHNSON: And I must complete the submissions Your Honour.

I'm not wasting the court's time - - -

HIS HONOUR: You are.

MR JOHNSON: I did not issue these vexatious oppressive

scandalous proceedings, that have wasted two years of my

life Your Honour, it took me two years away from my

clients, driven me to the point where I had to borrow

money again to - - -

HIS HONOUR: Mr Johnson, I will soon have to give you your last

opportunity to announce - - -

MR JOHNSON: Your Honour - - -

HIS HONOUR: - - - what you're going to do and then I will take

it you've closed your case.

MR JOHNSON: - - - that - that - - -

HIS HONOUR: Now what are you doing?

MR JOHNSON: I totally am not closing my case Your Honour, I

wish to put in - - -

HIS HONOUR: All right, who do you wish to call?

MR JOHNSON: I wish to put in evidence um, I wish to have -

when I complete my preliminary submissions Your Honour, I

wish to have Mr Hanlon, Mr Turnbull and Mr Devries give

evidence.

HIS HONOUR: Have you subpoenaed Mr Hanlon?

MR JOHNSON: The speech in court on 12 December, 11 December,

was to the effect that I didn't need to go to that

trouble of the paperwork to subpoena people who were

present in court.


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HIS HONOUR: That was not so, that is complete perversion and

distortion of what Ms Sofroniou said that day. On that

day she said she would then make Mr Hanlon available to

give evidence on the 12th. You specifically and

expressly declined to call Mr Hanlon, I even stood the

matter down for half an hour to give you the opportunity

to collect your thoughts, to ask him questions which must

have been at the forefront of your mind, you having made

serious allegations against him during the whole of this

case. You refused to call Mr Hanlon that day and I

adjourned the matter.

You have not subpoenaed Mr Hanlon to give evidence,

you have not compelled him to give evidence, we discussed

this last night, I told you as I repeated today, that

while ordinarily a judge might have sought to have at

least used persuasive and moral pressure to require Mr

Hanlon to give evidence, this is not such a case because

of the wild and unsubstantiated allegations you've made

against him and I made it clear to you that if you wished

to call him to give evidence you would need to take steps

to compel him to do so. You've subpoenaed everyone else

in sight but deliberately not done so today.

MR JOHNSON: May the transcript record I am holding

substantiations, substantial substantiations, it requires

two hands, of my very serious carefully presented

allegations against all of the family lawyers that have

represented Ms Cressy, promoted these proceedings,

litigation funded it 99 per cent plus Your Honour.

Without any hard evidence, show me the evidence I keep

saying.

Now Your Honour, I have not completed my preliminary


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submissions, I explained again yesterday as I did as

best I could on 12 December, I was in no fit condition on

human rights grounds, sleep deprivation, financial

resources. There are - I will do the head count again,

six accredited family law specialists railed against me

in this proceeding this morning. I assume some or all of

them worked through the night - did they work all through

the night and have three hours sleep like I did? Six

times the output that I've had.

Now I wish - I see no difference if Mr Hanlon is

able to go in the box - if Mr Hanlon was able to go in

the box on 12 December he's just as fit and able to go in

the box today where I'm in a little bit better condition

to question him Your Honour. Now my view is that the

fraud, the misconduct is so blatant it speaks for itself,

that if they don't go in the box it's to their

disadvantage because the case is manifest and they have

not raised a defence. So I would like to know firstly if

Ms Sofroniou is going to have Mr Hanlon, anyone from the

2nd or 3rd defendant by counterclaim answer my charges

against them.

HIS HONOUR: Why should she announce her course before you've

closed your case, it's most unusual for a defendant to

have to do that, I would not require her to do that.

MR JOHNSON: Your Honour, may I step backwards - - -

HIS HONOUR: It's a matter for you whether you call the

evidence.

MR JOHNSON: Your Honour, I would like to understand the

process for here, as soon as I can complete the documents

to appeal Your Honour's judgments and rulings of Thursday

last week and yesterday, excluding a whole heap of


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relevant material on my analysis of what's relevant to

this case, the vexatious scandalous proceedings, the

fraud, the crime, the misconduct, the malfeasance, that's

the 80 per cent of what's relevant in this case. The

fact that the only relevance of the Part 9 and the

constructive trust arguments is that they're just not

sustained.

There's no evidence in the plaintiff's case, hard

evidence, real evidence, that she ever earned any money,

that she signed any contracts, that she has a tax returns

and bank statements, any receipts Your Honour. It's just

chit-chatty word and look at her credibility, it should

be manifest what her level or lack, total lack of

credibility is. Her idea of discovery is to burgle and

steal primary evidence. She thinks aggravated burglary

is an acceptable means of discovering documents, or

concealing evidence Your Honour, I don't know what the

lady thinks. She's an Order 15 application person for

the whole decade that I've known her, that's why I took

her under my wing, I tried to giver her opportunities and

help her, primarily for the sake of her children.

Now you don't want to hear that evidence, you think

it's not relevant, well I cant help it, but the simple

fact is Your Honour, I have those appeals pending. Now

how this proceeding got separated off from the real

proceeding and you now have - although I wasn't I don't

think listed as a formal exhibit yesterday morning, it

should have been Your Honour, the full pleadings as they

currently stand. And again they're just interim holding

until I get Legal Aid funding or accredited family

lawyers willing to throw me a $100,000 of credit like


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Berry Family Law and Harwood Andrews have to promote this

vexatious claim against me, then they will be drafted

properly.

Now I don't know how the two pleadings got

separated, that was your decision Your Honour, your

judgment, I argued against it as best I could on the

first day of the trial, my very first day of existence as

an advocate Your Honour. I did the best I could at the

time. Now these appeals go to the Court of Appeal and

the Court of Appeal hear me on this, maybe they will be

indulgent - not if, but when they rule in my favour that

yes the fraud and malfeasance is highly relevant to the

counterclaims and to the application for costs against

present and past solicitors of the plaintiff. Then

evidence should have been in this vessel in this bit of

proceedings should it not.

Now if I've closed my case, submissions have been

given, the trial is concluded, all that's awaiting is

your judgment on it. What has happened to the vessel for

that subpoenaed relevant material to now be brought back

into this proceedings? Does Your Honour - I don't

understand - how can we know that the evidence is not

going to be held relevant - I believe the barometer of

relevance here it patently is. How do we know today that

that's not going to be relevant when the Court of Appeal

hears and determines my appeals on those points in my

favour. We don't know do we Your Honour, so how can I

even close my case when it's uncertain whether

substantial evidence is going to be held by the Court of

Appeal to be relevant to the very heart of the issues in

these proceedings. It's my 11th day as an advocate Your


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Honour, I don't know the process, I don't understand the

process from here, I don't understand. I did ask many

times yesterday was it proper and sensible use of Your

Honour's time to be hearing those additional subpoena

applications, given that the process was going to be a

repetition of the process that occurred on Thursday's

trial within the trial, Your Honour.

HIS HONOUR: Have you completed your submission?

MR JOHNSON: I'm sitting humbly waiting for an answer for what

does happen once the Court of Appeal rules on my appeal

on your rulings on the subpoena material.

HIS HONOUR: Well, what's for the Court of Appeal is for the

Court of Appeal, I'm hearing a trial, you have - you're

in the middle of your case, you have called witnesses,

I'm waiting to find out whether you're going to call any

further witness today before you close your case. I have

cautioned you time and time and time again against

philibustering and wasting the time of this court. I

warn you that whether you win or lose this case, your

conduct will detrimentally affect you on any issues of

costs, because it's been my perception your time wasting

has inordinately protracted this court's time, and you

have done it deliberately. Now, I ask you for one last

time, what do you intend to do now? Are you going to

call any further witnesses?

MR JOHNSON: Your Honour, I am an advocate - - -

HIS HONOUR: - - - before you close your case?

MR JOHNSON: - - - excuse me, Your Honour, I am an advocate of

less than 11 days experience as the court currently

stands. I'm asking a reasonable question. If I am

forced to close my case today, and I would love to get


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this out of the way today, the whole bloody mess out of

the way, Your Honour, so that I can resume my life that's

been burning a dancing inferno for almost two years. My

clients have been waiting for me some cases over a year

before I can do the work here. I want to get back to my

life, Your Honour. I've got no desire to delay this. I

don't understand how Your Honour can expect, let alone

force me to close the case. How can Your Honour properly

complete this trial when there's a serious question yet

to be put to the Court of Appeal whether a whole host of

witnesses and materials are relevant and have to be

brought back into the trial? If I close my case, you

close this trial, Your Honour, what's the process for you

to reopen - - -

HIS HONOUR: Because I will not - - -

MR JOHNSON: - - - Court of Appeal - - -

HIS HONOUR: - - - I'm not going to adjourn the case if that's

what you're trying to put pending - just let me talk. I

will not adjourn the case pending some appeal, which I

don't know whether you've - is instituted or not against

an interlocutory decision I have made in the running of

the case. I'd be amazed if the Court of Appeal

entertained such an appeal, but that's a matter for them,

but unless and until they entertained that appeal,

actually heard it and determined it, I'm hearing this

case to its completion. I hope I have made myself

sufficiently clear.

The work of this trial court would be absolutely

impossible and unworkable if a trial judge were to

interrupt a trial at the behest of one party because that

party wished to appeal some order made by the judge


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relating to evidence that was subpoenaed during it. That

is not the way trial courts do work, it's not the way

they can work. Now, Mr Johnson, you are running out of

opportunities. Are you going to call any further

witnesses today, or do I take it that you have exhausted

the amount of witnesses you're calling and therefore it

will follow that your case is completed?

MR JOHNSON: Your Honour, I do wish to call additional

witnesses - - -

HIS HONOUR: Right, call the witness.

MR JOHNSON: - - - but I still need to understand the process,

I'm not an experienced - - -

HIS HONOUR: The process is that the plaintiff goes first,

Mr Devries has gone first, he has called his witnesses.

As you have well understood, you have gone next, you have

given evidence yourself over a lengthy period of time,

you have called I think it's now five witnesses on your

behalf in relation to the issues in this case. You have

now delayed the completion of this case on a number of

occasions, on 12 December by wanting to call more

witnesses, yesterday afternoon when you came to an end of

your witnesses, and you have now wasted 20 minutes of

this court's valuable time by philibustering, time

wasting and speechifying on irrelevant issues.

MR JOHNSON: Your Honour, I have a serious - - -

HIS HONOUR: I have given you every opportunity and more to

address the issues between yourself and Ms Cressy and the

issues in the counterclaim.

MR JOHNSON: Your Honour, you and I, with respect, do not see

eye to eye on what are the issues in the case.

HIS HONOUR: Well, my ruling binds you in this trial. You have


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wished to flout it on a daily basis, on an hourly basis.

I warned you, you will not wear me down on that.


HIS HONOUR: Better people have tried than you and have come a

cropper.

MR JOHNSON: Your Honour, I'm not trying to wear anybody down,

I just do not have access to one, two, three, four, five,

six quite experienced accredited family law specialists

to advise me what the process happens at this

trial - - -

HIS HONOUR: You fully understand what the process -

Mr Johnson, you fully know the process. I've explained

it to you. In fact, when you've wanted to, you seem to

have understood court processes very well, as I have said

so.

MR JOHNSON: Forgive me, Your Honour, but if the Court of

Appeal - - -

HIS HONOUR: All right, are you calling any more witnesses?

MR JOHNSON: Your Honour, forgive me, but if the Court of

Appeal rules in my favour and the ministers are

subpoenaed and the documents and the materials and the

question I wanted to ask in this court yesterday are

relevant to the issues according to the Court of Appeal,

but this trial has in your eyes, Your Honour, finished,

how does that evidence that the Court of Appeal says,

yes, must be there, get brought in before Your Honour?

HIS HONOUR: That will be a matter for the Court of Appeal to

determine if it upholds your appeal.

MR JOHNSON: Bearing in mind that the Attorney General of

Victoria and the Equal Opportunity & Human Rights

Commission have rights of standing to become interested


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parties and involved in my appeal, they're rights that I

have, I have an obligation to notify them under the

Victorian Charter of Human Rights - - -

HIS HONOUR: Well, you do that, but I'm hearing a case between

parties who you have brought to court, (indistinct) which

you made unsubstantiated and wild allegations. Now, this

is your last opportunity, are you closing your case or

are you going to now call a witness?

MR JOHNSON: I am not closing my case this very minute, I - - -

HIS HONOUR: Right, you'll call - - -

MR JOHNSON: - - - I have a duty to - - -

HIS HONOUR: - - - call a witness.

MR JOHNSON: I have a duty to inform the court of my concern

that these proceedings have got off to a - - -

HIS HONOUR: You are deliberately delaying - - -

MR JOHNSON: - - - start.

HIS HONOUR: - - - you are deliberately disobeying my direction

to you.

MR JOHNSON: I'm deliberately - - -

HIS HONOUR: Are you - - -

MR JOHNSON: - - - putting my case the way that a man such as

this man would on behalf of myself as client - - -

HIS HONOUR: Are you closing your case or not?

MR JOHNSON: Your Honour, these proceedings kick off badly by

being separated from the main proceedings, they should

not be tested to pleadings at different times, they're

kicked off badly again, with respect, Your Honour, with

your rulings as to the scope of relevant issues, and your

rulings on the subpoenas on Thursday and yesterday. I'm

concerned that they're going to kick off badly, kick

through a third time badly, Your Honour. I don't


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understand this process that this trial is the vessel for

evidence on the issues. There's a real dispute as to

exactly the scope of the relevant issues in this case,

Your Honour.

HIS HONOUR: Well, I've made rulings on that and you are bound

by my rulings.

MR JOHNSON: I have done my duty to raise the issues with you,

Your Honour.

HIS HONOUR: Right. Now, you're sitting down, are you?

MR JOHNSON: No, because I wish - - -

HIS HONOUR: You're calling witnesses?

MR JOHNSON: - - - I wish to invite sequentially Mr David

William Hanlon, Mr James William Turnbull and Mr Graham

Devries in that order to step in the box to give

evidence. If they're not going to do that, Your Honour -

and I'm handicapping myself because the questions I ask

will have to be of witnesses in evidence-in-chief not

cross-examination, which I don't think is right - if they

won't step in I wish to - whatever process I need to,

maybe I need to ask leave to step back in the box for a

few minutes, because there are materials that I expected

by the Legal Services Commissioner giving evidence, which

he should have given yesterday, Your Honour, and/or by

asking questions of Mr Hanlon, Mr Turnbull and

Mr Devries, to put this material in evidence. They are

relevant to the issues in the case as I've (indistinct)

them many, many times, Your Honour. They are matters

which I wish to refer to, evidence I wish to refer to in

my submissions, Your Honour.

(RULING FOLLOWS)


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.LL:KD 10/02/2009 FTR:3-4B RULING

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- - -


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MR JOHNSON: I thank Your Honour for that one last indulgence.

MS SOFRONIOU: Your Honour, if I may - - -

HIS HONOUR: Yes.

MS SOFRONIOU: - - - while Mr Johnson is considering that - - -

MR JOHNSON: - - - no time to consider, Your Honour, but I do

wish to respond - - -

HIS HONOUR: You'll be seated while Ms Sofroniou makes her

submission to me.

MS SOFRONIOU: It's consistent with my duties as an officer of

the court, Your Honour, to - if I may draw Your Honour's

attention to s.11 of the Evidence Act, my understanding

is that Your Honour's - Your Honour has mentioned that

Your Honour has a persuasive power.

HIS HONOUR: Yes.

MS SOFRONIOU: It's appropriate to remind Your Honour that Your

Honour in fact can compel. Of course I don't want to

derogate at all from what Your Honour's just said, which

is in my client's favour.

HIS HONOUR: May be called, it's a discretionary power.

MS SOFRONIOU: That's so.

HIS HONOUR: I must say, for reasons I said, I'm reluctant to

do it. If you don't oppose me doing it, I'm prepared

to - - -

MS SOFRONIOU: No, I do, but I didn't want - - -

HIS HONOUR: No, I follow that.

MS SOFRONIOU: I thought it was appropriate for me to - - -

HIS HONOUR: I forgotten that there was a section here. I'm

aware of the power, and that is that there is a power to

compel.

MS SOFRONIOU: That's so, Your Honour.

HIS HONOUR: But it seems to me, and I am very concerned about

.LL:KD 10/02/2009 FTR:3-4B DISCUSSION

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doing it in a case of this type.

MS SOFRONIOU: In fact the unfairness operates in the following

way. It would be an untenable position. I've

foreshadowed that I wish to make no case submission and

that I don't wish to make an election prior to doing

that, but of course that's within Your Honour's

discretion, but that's my application. Had Mr Hanlon

been called, that would in fact stymie the very

application I wish to make, since having called him - - -

HIS HONOUR: Well, it would have obviated the whole thing.

MS SOFRONIOU: Well, the problem would be this, that Mr Johnson

would question Mr Hanlon, I would probably object to

almost everything that didn't relate to an issue in the

proceedings. Having then finished, it's inappropriate

for me to cross-examine my client.

HIS HONOUR: Having maybe, maybe not. You're entitled to,

you probably have to ask non-leading questions. The

words "may be called" - - -

MS SOFRONIOU: Well, I don't wish to, of course.

HIS HONOUR: Does that give a discretion? My understanding is

it's always been a discretionary power.

MS SOFRONIOU: It is discretionary power, that's so, Your

Honour.

HIS HONOUR: Judges ordinarily exercise that discretion in

favour of directing a witness.

MS SOFRONIOU: That's so, but I - - -

HIS HONOUR: My experience is I this - - -

MS SOFRONIOU: In this case, my submissions, Your Honour,

wouldn't, but I didn't want Your Honour to think Your

Honour couldn't, as it were, which without drawing that

to Your Honour's attention.


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HIS HONOUR: Well, my basic concerns are these, firstly, that

Mr Johnson has, time and time and time again, shown

that he has not does not wish to adhere to the issues

in the case.

MS SOFRONIOU: That's so, Your Honour, and that means - - -

HIS HONOUR: Secondly, he's made wild allegations, so far

unsubstantiated. When he's had the opportunity to

substantiate them, such as by cross-examining Ms Cressy,

as you invited him to do in relation to one of the

allegations in the counterclaim, he refused to do so, he

adduced no evidence, he's now twice been in the witness

box in relation to these issues. In those circumstances,

it would seem to me to be oppressive to require a person

who is the respondent to allegations of the type not only

articulated in the counterclaim, but also which had been

expressed in the most florid terms in court.

MS SOFRONIOU: Thank you, Your Honour.

HIS HONOUR: Into the witness box. Now, if there is a reason

why if the client would do it - - -


HIS HONOUR: I did issue I didn't even issue the invitation,

but you were good enough to offer your witness up last

year, and I would not compel him to do it now, it would

seem to me to be wrong.

MS SOFRONIOU: Thank you, Your Honour. He can take comfort in

the fact that should my application fail, I will be

calling evidence and he'll cross-examine.

HIS HONOUR: Yes.

MS SOFRONIOU: But I still have the right to have that

application heard without it being, as it were, unmined

or stymied by a course which cannot lead to evidence


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relevant to the issues in the case, Your Honour.

HIS HONOUR: I follow that. The only way I would Mr Hanlon

would be required to give evidence is if a subpoena was

issued, because I could I would be as for the reasons

I've articulated, I would not require him under I'd

understood it just to be a common law power, but I think

this is just a power that I've seen exercised time and

again in court.

MS SOFRONIOU: And even under subpoena, Your Honour, in my

submission, wouldn't, in any event, spare the futile step

for the matter that I've raised. It's an abuse of

process of the court to do it, to undermine a no case

application.

HIS HONOUR: Well, you're entitled I don't know about that, I

mean if he can call evidence to beat a no case, he's

entitled to do it.

MS SOFRONIOU: But it has the it undermines my

application - - -

HIS HONOUR: Well, that may be right, but he's entitled to do

it.

MS SOFRONIOU: It stymies it, that's - - -

HIS HONOUR: He's entitled to do it, but I would be reluctant

to use my powers as a trial judge to force a party into

court, if an order was made through a subpoena directing

him, that's a different matter, unless the subpoena's set

aside, but this case is such an extraordinary case, it

would seem to me to be wrong that I require Mr Hanlon to

give the evidence.

MS SOFRONIOU: May it please the court.

HIS HONOUR: The only thing is, Mr Johnson, I would give you

one hour, one last chance if you wanted to call


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Mr Hanlon, if you went if you obtained a subpoena, I'm

sure he would receive it on the spot here, but I'm very

reluctant to use my powers as a trial judge to ask him to

go into the witness box.

MS SOFRONIOU: Well, as I say, if Your Honour takes that

course - - -

HIS HONOUR: Yes?

MS SOFRONIOU: There would be applications I want to make about

that.

HIS HONOUR: Yes.

MS SOFRONIOU: It really will raise a practical problem once

that happens.

HIS HONOUR: In relation to what?

MS SOFRONIOU: Calling a witness twice, whether Mr - - -

HIS HONOUR: You'd be entitled to cross-examine him.

MS SOFRONIOU: Well, of course, but I don't wish to, of course.

The issue is though it's not the case that the evidence

that I would have to rely upon, were my application

to fail.

HIS HONOUR: M'mm.

MS SOFRONIOU: Well, Mr Johnson isn't going to elicit that.

That means I would have to call him, he would get to

cross-examine him. He can't lose his right of cross-

examination because he's examined-in-chief wrongly, it

actually is an underlying - - -

HIS HONOUR: I don't follow that. If Mr Johnson calls

Mr Hanlon as his witness, you're at large on cross-

examination and re-examination, Mr Johnson would be

confined to non-leading questions.

MS SOFRONIOU: Well, I suppose it only goes to serve that

Mr Johnson doesn't do himself any favours, in that the


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cross-examination ability he might otherwise have, if I

lose my application, will effectively be lost.

HIS HONOUR: Well, that's a matter for him.

MS SOFRONIOU: Yes, thank you, Your Honour.

HIS HONOUR: But as I say, I unless Mr Johnson will put

better arguments that he has so far, I will not exercise

powers to force Mr Hanlon into the witness box.


HIS HONOUR: But if he were to issue a subpoena, then I've

unless the subpoena was set aside, then he could call

him. I know it sounds a procedural issue, but there's a

trial judge on what has been adduced so far, I do not

think it would be right for me to force Mr Hanlon into

the witness box otherwise. Mr Johnson, do you - - -

MR JOHNSON: Thank you, Your Honour.

HIS HONOUR: I'll hear from you in a moment, Mr Devries.

MR JOHNSON: I do need to think about issuing that subpoena

course, I thought the discussion, and perhaps I got this

wrong, the discussion on 11 and 12 December was that such

a course of action would not necessary against the fellow

officer of the court who's present in court, I could

simply - - -

HIS HONOUR: Well, you misunderstood that, and I you were

again warned last night. Now, what are you going to do?

MR JOHNSON: Quickly mention that you said eight things about

my conduct at the trial, just before Ms Sofroniou spoke,

the time and time again, et cetera, there were eight

things that just for the transcript I want it noted

that I'm not going to respond to, but I don't accept.

Also, on the relevance, can I refer to the court book of

the 2nd and 3rd defendants by counterclaim, Your Honour?


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I believe these documents are relevant materials in the

court.

HIS HONOUR: Mr Johnson, you're wasting time. Are you going to

subpoena Mr Hanlon or not?

MR JOHNSON: I - - -

HIS HONOUR: Yes or no?

MR JOHNSON: I'm disappointed it has come to - - -

HIS HONOUR: Are you going to subpoena Mr Hanlon or not?

MR JOHNSON: I'm disappointed it has come to that, but yes, if

it must come to that.

HIS HONOUR: All right. You have one hour to go to the

registry, get a subpoena, come back. If you have it, I'm

sure Ms Sofroniou will accept service and you'll call

him. Mr Devries, have you got anything to put - - -

MR DEVRIES: Yes, I was just going to point out, with the

greatest of respect, Your Honour, that Your Honour made a

ruling at the end of last year as to the date by which

subpoenas weren't - - -

HIS HONOUR: I follow that, but this is a trial, I've made that

direction, but I will give Mr Johnson one last chance. I

don't want to waste any more time. I will be back at

Monday. If you have a subpoena in your hand, Mr Johnson,

to show that you are fair dinkum about calling Mr Hanlon,

we'll proceed from there. I know it's a bit unusual, but

I just, as a trial judge, do not to wish to exercise any

power I have in relation to this for the reasons I've

articulated. I will return at midday, Mr Johnson.

MS SOFRONIOU: And could Your Honour go on to say that that

means that Mr Johnson will not be able to cross-examine

him - - -

HIS HONOUR: He understands that.


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MS SOFRONIOU: In the event that my no case to answer is

unsuccessful, and I just want to be sure that he

understands that.

HIS HONOUR: Mr Johnson will understand that Mr Hanlon will be

his witness if you call him. I've told you this many

times, that Ms Sofroniou will therefore have a right to

cross-examine, there will be limits on that in the sense

that she can ask questions beyond the matters on which

you have examined, but she will not ask leading

questions. You will have a right of re-examination, but

not of cross-examination. Do you follow that?

MR JOHNSON: I follow that, I - - -

HIS HONOUR: Right, I'll adjourn til midday.

MR JOHNSON: - - - process, Your Honour, thank you.

HIS HONOUR: Twelve o'clock, no later.

(Short adjournment.)

HIS HONOUR: Mr Devries?

MR DEVRIES: Your Honour, can I trouble Your Honour with just a

minute of Your Honour's time? Two things, one is

Mr Johnson has made a number of serious accusations

against my instructors and I. For the record, they're

denied, so that he can't use by absence of denying them

in other proceedings.

HIS HONOUR: Yes.

MR DEVRIES: Secondly, Your Honour, the transcript of

yesterday's proceedings, the cover sheet has achieved

what Mr Johnson has been seeking for a long time and

that's my removal from the record. Just for the sake of

the record - - -

HIS HONOUR: You are not recorded as being on there?

MR DEVRIES: I'm not on the cover sheet, Mr Turnbull remains.


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HIS HONOUR: I'm not sure if you got a word in edgewise

yesterday.

MR DEVRIES: I didn't, Your Honour, I was - - -

HIS HONOUR: I don't think anyone did.

MR DEVRIES: - - - very thankful for that, and - - -

HIS HONOUR: Well, Mr Devries is still here, alive and fit and

well for the plaintiff.

MR DEVRIES: And the other matter, for the sake of formality,

Your Honour, I've handed to Your Honour's associate a

copy of an unrecorded decision of - - -

HIS HONOUR: Yes, thank you for that, in fact I had noted it

over the holidays, that's of assistance.

MR DEVRIES: As an unrecorded decision I'm obliged to give Your

Honour a copy, and I've given one to - or had one given

to Mr Johnson by my instructor.

HIS HONOUR: Thanks, Mr Devries, thank you for your assistance.

MR DEVRIES: Thank you, Your Honour.

HIS HONOUR: Now, Mr Johnson, where are we at, have you - - -

MR JOHNSON: Yes, Your Honour, thank you, I was able in the

time you graciously provided, Your Honour, to organise a

subpoena for David William Hanlon. As I was leaving to

do that, James Turnbull kindly suggested that I organise

subpoenas for both himself and Graham Devries, so I've

done that also. At the Prothonotary's office I was also

asked, rather than keeping the court copy, to bring

Your Honour's copy to court with me, so shall I hand

them sequentially or should I hand all three up now,

Your Honour?

HIS HONOUR: Well, hand three to me. Firstly, Ms Sofroniou,

will accept services on behalf of your client if

Mr Hanlon's subpoenaed? Thank you.


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MR JOHNSON: Thank you, Ms Sofroniou.

HIS HONOUR: If you could provide a copy of that to

Ms Sofroniou. Now, what are you giving me, Mr Johnson,

copies of the three subpoenas you've just issued?

MR JOHNSON: Yes, Your Honour, they are the court copies, Your

Honour, Prothonotary asked me to bring them back to court

with me.

HIS HONOUR: David William Hanlon.

MR JOHNSON: Shall I give Mr Devries and Mr Turnbull theirs

also?

HIS HONOUR: I'm not going to invite them to accept services,

it's a matter for them.


MR DEVRIES: It was suggested that if he was going to issue to

subpoenas to us, rather than have another hour's delay

later, we could do it all today - - -

HIS HONOUR: Hopefully.

MR DEVRIES: - - - still be objected to, Your Honour - - -

HIS HONOUR: Do you receive it anyway, Mr Devries?

MR DEVRIES: I do, Your Honour.

HIS HONOUR: Well, Mr Johnson's handed - I should record he's

handed copies of subpoenas to Ms Sofroniou on behalf of

Mr Hanlon to Mr Devries and Mr Turnbull. Perhaps going

back to front, I would anticipate an application by you,

Mr Devries, on your behalf, and - - -

MR DEVRIES: And on Mr Turnbull's - - -

HIS HONOUR: - - - Mr Turnbull's behalf.

MR DEVRIES: Mr Turnbull was of the view that only he could

make it on his behalf. I'm not sure that that's

quite correct, but if you wish us to, I'm not going to

stand in your way.


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HIS HONOUR: You could do it, I suppose, either as a friend of

the court, or if Mr Turnbull wishes to make the

application himself he's entitled to.

MR DEVRIES: I'd be doing it as counsel for Ms Cressy,

objecting to (indistinct) make those - - -

HIS HONOUR: Well, I follow that. Mr Johnson, this is ground

we've trodden on already. You've nonetheless seen fit to

subpoena Mr Devries and Mr Turnbull. What issues in this

case do you wish to call Mr Devries and Mr Turnbull to

give evidence about, the issues in this case?

MR JOHNSON: I wish to ask them to give evidence about the

issues in this case, which are the Part 9 and

Constructive Trust claim by Ms Cressy which they

inherited from David Hanlon and Howard Andrews. And

particularly what I believe goes to the heart of what's

relevant in this case, what steps they took, given that

none has been presented in any of the court hearings, to

obtain hard evidence from statutory records, titles,

office documents, birth certificates for children,

contracts for my properties, there's no contracts for my

property with names of the plaintiff on it, there's no

income tax returns to show that she earned income to make

any contribution to the acquisition, maintenance or

improvement of my properties, there's no bank statements

to show any income, there's no payslip from her

employers, and she had substantive employers, as was

embarrassingly drawn out when I cross-examined her, Your

Honour. Where's the evidence? She's making these

claims, can't she even go to her employers and get

payslips? Hasn't she filed tax returns? Doesn't she

have bank accounts? Where's the receipts for all these


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tens of thousands of dollars she claims to have spent?

HIS HONOUR: Right, you're now making an argument, but in final

address I've asked you to indicate the basis upon which

you seek to call Mr Devries and Mr Turnbull. In that

respect do you wish to say anything else?

MR JOHNSON: I do, Your Honour, res ipsa loquitur, it speaks

for itself. If there is no evidence - a caveat is a very

serious thing, Your Honour, it deprives a man of his

freeholds and can have other impacts on his liberties,

without due process, without trial by his peers. I'm

quoting an English translation of Clause 39 of the magna

carta. Geoffrey Robertson kindly translates it from the

Latin, if I can read that to you. A caveat's a very

serious matter, that's why in those proceedings in the

Land Titles Office, claims have to be, in some respects

of that process, certified by a solicitor as believing

there's a reasonably arguable case.

When I filed my s.89A applications against the

caveats attaching all the properties but the one at

Altona where I was letting her live in and trying to sort

out some ongoing variation of the terms on which I was

allowing her to live there, I had to certify in my

capacity as a solicitor that I thought that I had a

reasonable case - I had much more than that, Your Honour

- for challenging the caveats. The caveats would then

have lapsed if the statement of claim of 26 November 2007

had not been (a) filed in court and (b) notified to the

registrar. The statement of claim is a device to prop up

and to prevent the expiration of the caveats, the first

caveat on behalf of Ms Cressy that I've referred to in my

counterclaim document.


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These are very serious matters. Deprivation of

freeholds and other liberties, certainly serious enough

for the barons in 1215 to require King John to sign the

magna carta, certainly serious enough for those rights

that the man and his freehold not to be deprived of his

freehold or other liberties, to be enshrined 400 and

70 something years later in the English Bill of Rights,

1689. Serious enough that we are the sole jurisdiction

in this federal nation of ours to have a charter of human

rights and responsibilities protecting those rights.

A lot of power through this caveat process is

trusted into solicitors. They're officers of the court.

There's a pretty solid argument that as an officer and

solicitor of the court I am under the same legal

obligation to respect the human rights and freedoms

enshrined in our Victorian Charter of Human Rights and

Independence as other officers of this court, Your

Honour, and indeed other officers of other arms of

government, at the state and the federal level, in their

dealings with men, women and children of Victoria.

Now, that very serious process of doing things which

are prohibited by the magna carta, prohibited by the

1689, I believe it is, bill of rights, prohibited by our

charter of human rights and responsibilities of 2005,

doing those things relies on the good faith of

professionalism, the independence brought to mind by

barristers and solicitors, office of the court in their

dealings with the Titles Office on that process. I

submit, Your Honour, the power of solicitors in issuing

caveats can't be exercised willy nilly. It can't be

exercised on an unsubstantiated claim, a lady walks in


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off the street and makes a claim. Your Honour - - -

HIS HONOUR: Well, what's this got to do with Mr Devries and

Mr Turnbull? They did not cause any caveat to be lodged

over your properties, they're here to represent

Ms Cressy.

MR JOHNSON: In Callinan's case there's a description of what

constitutes abuse of process misdecence. There are

earlier cases referred to in the relevant

paragraphs - - -

HIS HONOUR: Which judgment in White Industries do you

refer to?

MR JOHNSON: As Your Honour indicated yesterday afternoon, the

Federal Court including Mr Justice Sunberg in the

Australian Law Reports - forgive me, it's 25 years since

I've had to do this formally - Australian Law Reports

of - - -

HIS HONOUR: You're referring to the Full Court's decision, are

you?

MR JOHNSON: Yes, Your Honour. I have two cites here, one is

- forgive me for doing it in the - - -

HIS HONOUR: Well, we're getting a long way - - -

MR JOHNSON: - - - 1963 ALF744, Your Honour. And the head note

says it all. The misdecence arises not only from the

issuing of proceedings, but the continuation of those

proceedings, once you are aware that they are vexatious

and oppressive - - -

HIS HONOUR: What proceedings, a caveat? You seem to have

slipped from the caveat to these proceedings.

MR JOHNSON: Well, what happened is the caveat - - -

HIS HONOUR: Mr Johnson, you are now philibustering, I've

allowed you to go more than I think is sufficient.


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HIS HONOUR: Other parties have rights and - just a moment

please. Other parties do have rights in these

proceedings and you are trampling over their rights to be

heard. How is the evidence from Mr Devries and

Mr Turnbull relevant?

MR JOHNSON: Your Honour, as a principle of a human rights

legal practice, Sutton Lawyers Proprietary Limited, and

as the founder of the One Law foundation, a human rights

and law reform organisation, I hope I'm not trampling on

anybody's human rights here today, Your Honour. There

were caveats, the third wave of caveats mentioned

yesterday to Your Honour on the application regarding

Mr Peter Berry. It's the caveat that was filed in or

about - it's dated 6 April 2008.

Exactly the same issue I've just enunciated arises,

show me the evidence to support this caveat. That is

what I want to ask. What are officers of the court with

duties to the court, professional duties, going doing

things under the Land Titles Office process that violate

very (indistinct) human rights in this jurisdiction that

have been recognised in our answers to jurisdictions

going back to the magna carta of 1215, without any hard

evidence, Your Honour. It's a total no-no to just do

what the client says, an ultimata, not to check it out.

It's an extreme no-no, and I'll flip back to the

earlier caveats in Harwood Andrews when a gentleman you

have not only known on a first name basis for a decade,

but you have been in the multi million dollar annual

employment of that gentleman, tells you that something's

very wrong with the stories you are being told. You're


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put on notice you should make inquiry. To proceed, to

flow through, to get to a trial where suddenly it's

realised, boys, show me the evidence. It's not there.

They're relying on wild, unsubstantiated,

unsubstantiable claims by the plaintiff, there's some

relationship, all right, look at the lady's credibility,

look at the list of witnesses they have produced. Your

Honour, there are two dimensions to this case, more than

two. The first is the claim, the plaintiff saying Part

9, Constructive Trust, no evidence, no evidence. So the

case is manifest, unless these gentlemen have a defence

or an excuse, clearly a fraud has been committed,

depending on the quality of mens rea, a crime has been

committed. Depending on the extent of discussion which I

will never know about, because these officers of court

will claim privileges within the court precinct

And privileges as officers of the court. I will

never know that, I'm not asking those sorts of questions,

it's a fruitless exercise, Your Honour, but it speaks for

itself there has been a fraud that's been perpetrated

using officers of this court, an accredited Family Law

specialist claiming decades or more experience, who

didn't do the due diligence, the research, the checks of

independent, publicly domain records, the client's

private records that she should have been able to come up

with to demonstrate the claims written out in the

caveats. The claims in her caveats - - -

HIS HONOUR: Mr Johnson - - -

MR JOHNSON: - - - of the (indistinct) caveats.

HIS HONOUR: You have made this point repetitively, it doesn't

get better by repetition, is there anything other than


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that point that you intend to put in favour of the

subpoenas you've directed to Mr Devries, who represents

the plaintiff in this matter, and Mr Turnbull, her

solicitor?


HIS HONOUR: Is there any other matter, without repeating?

MR JOHNSON: I've invited these men as a courtesy, even after

they've closed the plaintiff's case to show the evidence.

If they can't provide an excuse or do not want to provide

an excuse for that conduct, it's manifest, it speaks for

itself. The case against them is proven, it follows that

under Callinan's principles and order the part of

Order 63, I think it's Part 17, Your Honour, I should get

an order for costs from you against the plaintiff's

present legal team and her previous legal team, and what

underscores that is they have known all along that they

have litigation funded, over $300,000 worth of the time

that they've recorded these let me count. One, two,

three, four, five family lawyers present in court today,

they have litigation funded, over 99 per cent.

That is outrageous, that is a much more staggering

abuse of court process and misfeasance than the things of

Flower & Hart and Dr Ian Callinan, as he was before he

ascended to the High Court was in respect of that episode

that we now know as Callinan's case, Your Honour. The

case speaks for itself, it is proven - - -

HIS HONOUR: If it speaks for itself, you've said enough. Now,

Mr Johnson - - -


HIS HONOUR: You've made, it seems to me, the point,

repetitively, unless Mr Devries, you wish to respond, I


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do not see any need for you or Mr Turnbull to respond.

MR DEVRIES: Can I just say that the allegations, again, that

have been made are denied.

HIS HONOUR: Yes.

MR DEVRIES: As for and I need to put this on the record, I'm

satisfied that my client has an arguable case. It will

be tested, with respect, and I understand his - - -

HIS HONOUR: Precisely.

MR DEVRIES: But and I have nothing to - - -

HIS HONOUR: No.

MR DEVRIES: - - - the caveat.

HIS HONOUR: Thank you, Mr Devries.

(RULING FOLLOWS)


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- - -

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

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

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HIS HONOUR: That leaves the subpoena to Mr Hanlon, do you call

that yes?

MS SOFRONIOU: If it's called, Your Honour, I have an

application to make in respect of it.

HIS HONOUR: Yes.

MS SOFRONIOU: In light of Mr Johnson's speeches, it's apparent

that the purpose of calling Mr Hanlon is to address those

issues that he has attempted to set out in the

Alternative Proceedings 9623 of 2008.

HIS HONOUR: Yes.

MS SOFRONIOU: Your Honour has invited him at the close of the

proceedings on 11 and 12 December to say what Mr Hanlon

was being called for in his case. Whether Mr Johnson

likes it or not, he has been on the unfavourable side of

a ruling in the way in which Your Honour reads the scope

of the counterclaim, and it doesn't take Oxford Union

type debate speeches and reiterating the point to change,

in my submission, that ruling.

HIS HONOUR: No.

MS SOFRONIOU: Mr Johnson hasn't shown any willingness

whatsoever to confine himself to the issues in the

pleadings, and that would have been a matter of,

probably, having Mr Hanlon called, objecting to each

question, and going in the normal way. What concerns me

is Mr Johnson hasn't stopped there, he's attempted to

institute separate proceedings, which Mr Hanlon and

Harwood Andrews are once again parties. Now, I should

say I reserve my rights in those proceedings to say that

in fact there are all kinds of estoppels that stop him

from running him there.

HIS HONOUR: Yes.

.LL:SK 10/02/09 FTR:9-10E DISCUSSION

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MS SOFRONIOU: However, Your Honour has offered him the

opportunity, I think, at p.574 of the transcript to amend

this case, he hasn't done so. Indeed, he would need to

pay costs in order to do so.

HIS HONOUR: Yes.

MS SOFRONIOU: What he's tried to do instead is be quite

blithely ignoring what Your Honour says about this and

wants to call Mr Hanlon to answer questions which, if

they were allowed to be to go ahead, would be matters

that he's raised in Proceedings 9623 of 2008. That's an

improper use of a subpoena in these proceedings. Indeed,

in my submission, it has another purpose, which is the

venting, as it were, of his insistence that he gets to

call Mr Hanlon in the box and put the things that are the

matters of 9623 of 2008, whether it adduces evidence or

not, in the same manner in which he's made the speeches

to Your Honour.

I don't want to debate legal history for legal

history with Mr Johnson, but he might also be advised to

look in the period between the periods of legal history

that he's mentioned, and I submit to Your Honour that the

Star Chamber system that persisted in Tudor times is no

longer instituted in the common law, and that the

reversal of onus that says that silence amounts to fraud

is not part of the common law. He bears an onus as a

counterclaimant.

He's insisted that he wants, nevertheless, to make

these assertions, and in my submission, if he wants to do

it, let him try and do it where he's pleaded it in 2623

of 2008, and take its chances there, but he hasn't

indicated to Your Honour that the use of the time in


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these proceedings is going to be assisted by calling him

here, and on that basis, Your Honour, it goes further

than the we'll let him be called and we'll object, if

this is all the way of delaying the anxiety, the

understandable anxiety that I know he feels about closing

the case, in my submission, the subpoena shouldn't be

used for that purpose.

I have a no case application as it is, Your Honour

will hear that on the basis of the proper onus where it

lies. Should that fail, Mr Johnson will have his chances

to question Mr Hanlon. But my main point is that in any

event, what he says he does want him for is for the

purposes of the other proceedings. May it please

the - - -

HIS HONOUR: Well, I follow that. Mr Johnson, you have now

compelled Mr Hanlon to give evidence in this case. As I

read s.24 of the Evidence Act, Mr Hanlon is a competent

and compellable witness, but only to give evidence in

relation to the issues in this case. Those issues,

whether you like it not, I have ruled are those contained

in the pleadings in this case. You have deliberately,

intentionally, and repetitively sought to disregard, and

indeed, disobey that ruling, and you have done so in

circumstances where it has been clear that you have done

it for, it seems to me, an ulterior purpose, to try to

derail this proceeding, and I will not permit that to

happen.

I will permit you to call the subpoena and call

Mr Hanlon, but you will be confined to asking questions

solely in relation to the issues in this case. If you

divert from that, then I will overrule the objection I


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will allow any objection and rule the evidence

inadmissible. Do you follow that?

MR JOHNSON: I - - -

HIS HONOUR: Do you understand what I'm saying?

MR JOHNSON: - - - follow what you're saying, Your Honour.

HIS HONOUR: You will if you continually, in your questions,

go beyond the issues in this case, then I will not permit

you to continue the evidence-in-chief of Mr Hanlon. Do

you understand that?

MR JOHNSON: I understand that, Your Honour.

HIS HONOUR: Mr Johnson, intellectually, you have shown that

when you want to, and when it suits you, you can

understand the issues in this case and you can focus on

them, and you have done that successfully with a number

of witnesses and, indeed, in parts of your own evidence.

You will bring the same discipline to bear when you call

Mr Hanlon to give evidence. If you continue to

repeatedly disobey that, then I will see you as simply

standing in deliberate disobedience of my ruling, and

indeed, you'll be coming very close to being in contempt

of my court, because you'll be disobeying an order by me.

You will not ask any questions other than those

relating to the issues in this case. Now, you are on

strict warning, if you disobey that, at the very least,

I'll simply cease the evidence-in-chief. I also caution

you, although I have already told you this on a number of

occasions, and Ms Sofroniou reminded you this morning

before we broke, that you are confined to evidence to

non-leading questions, do you understand that, and that

Ms Sofroniou does have a right of cross-examination of

Mr Hanlon, because he's being called in your case, and


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Mr Devries also has such a right.

MR DEVRIES: Yes, and the other matter, Your Honour, is I'm

instructed to inform Your Honour that our client does not

waive her - - -

HIS HONOUR: Privilege?

MR DEVRIES: Privilege, in respect of the evidence that - - -

HIS HONOUR: I understand that. So the numbers of matters you

may wish to ask about may be the subject of an objection

on behalf of Ms Cressy on the grounds of legal

professional privilege. Now, having both cautioned you

and assisted you by advising you of those facts, you now

call Mr Hanlon?

MR JOHNSON: Your Honour, before I do, may I respond briefly to

some of the comments by Ms Sofroniou and the directions

you've given me, Your Honour. Firstly, this is my 11th

day of - - -

HIS HONOUR: No, you've said that. Mr Johnson, you have

speechified the whole day, you call the subpoena now or

else I will excuse Mr Hanlon.

MR JOHNSON: I cannot guarantee the questions I ask will not,

to your ears, appear to be leading. I shall do my

best - - -

HIS HONOUR: You will do your best, and in fact, you will do

very well in the five witnesses you've called so far in

that regard. Mr Hanlon, would you go into the witness

box, please?


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45/64

HIS HONOUR: What are you looking for, the first caveat that

Harwood Andrews lodged?

MR JOHNSON: Yes, dated about May 2007, it doesn't seem to be

in the court book Your Honour.

HIS HONOUR: It is also an exhibit in this proceeding.

MR JOHNSON: Mr Turnbull informs me it's at p.16, yes, it's at

p.16 of the court book. No it's not actually, that's not

a caveat in favour of - - -

HIS HONOUR: I think it's Exhibit 30 is it not?

MR JOHNSON: Yes - I don't know Your Honour, I don't have a

complete list of exhibits.

HIS HONOUR: What's the number of it?

MR JOHNSON: Caveat No.AF066328D, it's p.19 of the 2nd and 3rd

defendants' counterclaim court book Your Honour.

HIS HONOUR: Exhibit 22.

MR JOHNSON: Thank you Your Honour. Mr Hanlon, do you

recognise this instrument?---Yes I do.

Is that your signature?---Yes it is.

The date of the instrument please, would you read that to His

Honour?---9 May 2007 I think.

The grounds of the claim, would you read that out also?---An

unregistered instrument of charge bearing date 6 May 2007

given by Pippin Cressy as chargee to Harwood Andrews Pty

Ltd, ACN 075858 I think 034 as chargee.

I believe it says does not, "Given by Pippin Cressy as

charger"?---As charger, yes that's right, yes.

The caveator, would you read to His Honour the caveator please?

---Harwood Andrews Pty Ltd.

In late October/early November I sent you a number of letters

regarding the plaintiff's caveat over six of my

properties did I not?---I recall there were letters


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received from you.

I believe some of these are in the court book, perhaps I can

identify and have them shown to the witness Your Honour.

HIS HONOUR: Some have been exhibited, which one do you refer

to?

MR JOHNSON: I'm at a disadvantage because I don't have a list

of index.

HIS HONOUR: What date?

MR JOHNSON: It was early November Your Honour, it had attached

to it copies of the contract particulars page of when I

purchased the property at 912 Gibson Street, Caulfield

East, and it had a bank statement showing that the bank

fully funded that purchase and indeed - - -

HIS HONOUR: Mr Johnson, it doesn't matter what it says, you

obtain the document and show it to Mr Hanlon, we can then

proceed.

MR JOHNSON: Thank you Your Honour.

HIS HONOUR: He's your witness.

MR JOHNSON: It is an exhibit, if I had a list of the exhibits

I could identify that really quickly. Here we go, it's

in the court book of the 2nd and 3rd defendants, it's a

letter type date of 26 October 2007.

HIS HONOUR: That one is Exhibit 32.

MR JOHNSON: Thank you Your Honour. It contains the

information that I just described to Your Honour, perhaps

Mr Hanlon could you have a look at the letter?

HIS HONOUR: Do you wish Mr Hanlon to see that document?

MR JOHNSON: You see that letter Mr Hanlon?---I'm not sure this

is the same letter Your Honour, this is a letter dated

26 October, it relates to Queen Street, not to - - -

It sounds like it's not the same letter Your Honour?


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---- - -Gibson Street.

This is at p.48 of the 2nd and 3rd defendants by counterclaim

court book Your Honour, p.48 of that book, it certainly

is an exhibit also Your Honour, I'm just not sure of the

number for it.

HIS HONOUR: Is that letter dated 29 October is it?

MR JOHNSON: Yes, typed at 26 October but the 26th has been

hand changed - - -

HIS HONOUR: I might be wrong, I don't know that that is yet in

evidence. But you may nonetheless show it to the

witness.

MR JOHNSON: Can we have it added as evidence?

HIS HONOUR: Show it to the witness, if he identifies it you

can tender it.

MR JOHNSON: Thank you Your Honour. The only copy I have to

hand is - - -

MS SOFRONIOU: If it helps Your Honour, I think it's Exhibit A.

HIS HONOUR: It is in is it? Yes I apologise, it's Exhibit A,

so it's the first exhibit.

MR JOHNSON: Thank you Ms Sofroniou, I would have thought it

was one of the first exhibits in all this Your Honour,

thank you.

HIS HONOUR: Thanks Ms Sofroniou, yes.

MR JOHNSON: If the witness could see Exhibit A please

Mr Richards. Mr Hanlon, the letter is in both facsimile

and there is a heading is there not, it says, "Urgent

communication"?---Yes.

"Privacy Act confidentiality applies"?---Yes, yes.

Would you mind reading the first two paragraphs for me?

HIS HONOUR: He can just read them to himself can't he?

MR JOHNSON: I would like them read to the court if


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that's appropriate.

HIS HONOUR: I can read them.

MR JOHNSON: Sorry Your Honour?

HIS HONOUR: I can read them, what paragraphs are you referring

him to?

MR JOHNSON: Perhaps I can read through, "I refer to my letter

to you of 25 October 2007 in respect of each of the above

caveats' - there's a full list of my properties and the

heading Your Honour - "which you have lodged against my

six above named properties for your client and for your

company respectively." The heading, "Gibson Street

removal of caveat". "In my previous letter I informed

you that these are vexatious caveats. This letter is

concerned with one of these properties, 913 Gibson

Street, Caulfield East" - Gibson Street defined in

brackets - "which is affected by your client's caveat

which I require your client to remove forthwith." Then

the next paragraph does it not say, "Gibson Street is

under contract of sale and is pass due" - sorry no it

doesn't say, it says, "Gibson Street is under contract

and is pass due", an interesting Freudian slip Your

Honour. "Gibson Street is under contract and is pass

due", does it not say that Mr Hanlon?---It does say that.

Can I take you further in that letter I've described the

funding which I mentioned in introducing the exhibits

Your Honour, the attachments, there's a document headed

p.2, that looks like it's out of a contract of sale, a

contract of purchase doesn't it Mr Hanlon?

MS SOFRONIOU: I object Your Honour, I've been waiting to give

my friend a bit of time but I'd ask him to stop leading

the witness.


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HIS HONOUR: Yes, ask the question again in a non leading way.

MR JOHNSON: Your Honour, I'm sorry Mr Hanlon forgive me, as I

say it's my 11th day as an advocate, after 20 years of

continuous membership of the Law Institute. The third

letter in there, the first attachment after the two page

letter, could you read the heading on that page please?

---I don't have that Your Honour.

HIS HONOUR: I don't think that's part of the exhibit.

MR JOHNSON: We don't have the full copy of the facsimile as

the exhibit. Your Honour, could we have t

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