Brothel Gate Day 8 AM

1MR DEVRIES: Your Honour, my client is not present in court.
2 I've been instructed by my instructors that they've heard
3 from my client. She's bedridden with a gastric upset.
4 She has asked me to apologise to Your Honour. There's no
5 discourtesy to this court by her non-attendance.
6HIS HONOUR: I understand. I understand that. Thanks
7 Mr Devries. I should say on the matter I raised at the
8 close of play yesterday, I have spoken to the listing
9 master and, I think in fairness to your instructor, the
10 matter was set down on a two day estimate in the
11 expectation, whether right or wrong or founded or
12 unfounded, that Mr Johnson would not attend, so that it
13 was not represented as being a two day estimate on a
14 contested case. I would really query the wisdom of the
15 proffering and indeed if I may re-sequence those so the
16 acceptance of an estimate on that basis in the case of
17 this history.
18 But I do not state that in criticism, but rather I
19 think in the future everyone's got to take more care
20 about these estimates.
21MR DEVRIES: There was another expectation Your Honour, and I
22 don't intend this - - -
23HIS HONOUR: Yes, we don't need - sorry. We don't need to
24 visit it, but if there's any criticism in that, or there
25 was a criticism I think of your instructor, I withdraw
26 it.
27MR DEVRIES: Yes, I'm indebted to Your Honour.
28HIS HONOUR: Yes.
29MR DEVRIES: Insofar as my involvement, I came into that part
30 of it afterwards, but there had been an expectation that
31 even if Mr Johnson subsequently had turned up, we may
1.LL:KF 11/12/08 FTR:1 134 DISCUSSION

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1 have been successful in raising the litigation regarding
2 the matter. We had expected the other - - -
3HIS HONOUR: Yes, well that's a false expectation.
4 (indistinct) don't actually assist. I'm not going to get
5 into that argument.
6MR DEVRIES: I'm sorry Your Honour. I won't take it further
7 Your Honour.
8HIS HONOUR: I would not. The next matter is Mr Wittekind, is
9 he hear Mr Johnson?
10MR JOHNSON: Your Honour, Mr - no he's not here Your Honour.
11 He's not been served. There have been four attempts of
12 service, three last evening and one this morning. The
13 present server, Mr Martin Tilly, is on his way to court.
14 He's in traffic, to give evidence of the attempted
15 service.
16HIS HONOUR: Right. Well I think the best thing we should do
17 is let's press on and complete your re-examination and
18 work out where this case is going.
19MR JOHNSON: Thank you Your Honour. I - I just want to
20 foreshadow that both the propositions that my learned
21 friend put as to the two day estimate, that I did not
22 turn up. That's totally inconsistent with the
23 correspondence (indistinct) of that input. Both of those
24 are issues that form the basis of my submissions for
25 costs Your Honour.
26HIS HONOUR: Yes, I understand that. Now let's continue with
27 your re-examination. Thank you Your Honour.
28<HAROLD JAMES JOHNSON, recalled:
29HIS HONOUR: Now remember, this is not the time for speeches.
30 It is simply to clarify any evidence on which you cross-
31 examined. Particularly if you felt that you did not have

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1 the opportunity to explain some of your answers. Do you
2 follow that?
3MR JOHNSON: Thank you Your Honour.
4HIS HONOUR: Stick rigidly to that (indistinct)?
5MR JOHNSON: I shall. May I say that I did drive down to
6 Geelong regarding the request for a copy of my current
7 driver's licence. I have a photocopy of both my current
8 driver's licence, and I can hand up the original, and my
9 original motorcycle learner's permit.
10HIS HONOUR: Yes?
11MR JOHNSON: I'd ask if that they both be put into as the
12 exhibits.
13HIS HONOUR: Yes, well what I'll do is I'll have them shown to
14 Mr Devries. If he's happy with the photocopy, I'll
15 receive the photocopy. So what have you got? You've got
16 here what?
17MR JOHNSON: The motorcycle learner's permit that's already in
18 evidence was under renewal. It's a - - -
19HIS HONOUR: This is what?
20MR JOHNSON: That is the original - - -
21HIS HONOUR: The originals are - - -
22MR JOHNSON: - - - which was issued in September 2006.
23HIS HONOUR: Learner's permit and that's what you photocopied?
24MR JOHNSON: Yes.
25HIS HONOUR: You also photocopied your driver's licence?
26MR JOHNSON: Yes, which shows a number of VicRoads changed
27 address with the stickers on the back.
28HIS HONOUR: Yes.
29MR JOHNSON: There's at least three, I think probably three.
30HIS HONOUR: Yes there's certainly some overladen with others.
31MR JOHNSON: Yes.

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1HIS HONOUR: On the back of that. I think the best thing for
2 me to do is to have them shown to Mr Devries, and then
3 we'll sort out how we go about that tender, but I'll just
4 simply note that you've handed them over at the moment
5 and we'll have that tendered then once Mr Devries's had
6 the opportunity to look at them. Right. Now we'll come
7 back - can you deal with that Mr Devries?
8MR DEVRIES: Your Honour - sorry. I am not opposed to the
9 photocopies being tendered in lieu of the originals given
10 the nature of the originals, but if the transcript can
11 note that there were on the original driving licence at
12 least three, possibly four, changes of address.
13HIS HONOUR: Yes.
14MR DEVRIES: (indistinct).
15HIS HONOUR: Do you agree with that Mr Johnson?
16MR JOHNSON: Yes I do Your Honour.
17MR DEVRIES: It'd be lovely to peel them off and see what they
18 say, but it might not be a safe thing to do Your Honour.
19HIS HONOUR: I agree with that.
20MR JOHNSON: I (indistinct) no objection. If it could be done
21 so that the information isn't destroyed where the sticky
22 is lifted. I've got no objection to that happening in.
23MR DEVRIES: I don't think it can be done without damaging the
24 top one Your Honour.
25HIS HONOUR: Don't (indistinct).
26MR JOHNSON: I think my learned friend (indistinct). I think
27 that would happen, yes. But I can explain the date
28 changes if you'd like, the subject of that (indistinct).
29HIS HONOUR: Well it's a matter for you. You're in
30 re-examination. If a relevant issues raises - what I
31 will do, is I'll receive - well you're happy for me to

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1 receive that photocopy?
2MR DEVRIES: Absolutely Your Honour.
3HIS HONOUR: Thank you.

4
5#EXHIBIT 48 - Photocopy of defendant's driver's licence
6 and photocopy of defendant's learner's
7 permit with expiry date 25/12/07.
8HIS HONOUR: Thanks. Now the licences can - - -
9MR DEVRIES: We were going to do the same thing Your Honour.
10 We were going to release - - -
11HIS HONOUR: Yes.
12MR DEVRIES: - - - the other motorcycle licence, which is
13 probably more current.
14HIS HONOUR: yes, you wish that to be more valid?
15MR JOHNSON: I would, Your Honour, otherwise I would need to go
16 to VicRoads.
17HIS HONOUR: Yes. No, you're quite right. We'll get that
18 photocopied, and that was Exhibit K, in due course when
19 Mr Richards has a moment we'll have that photocopied.
20MR JOHNSON: Now, the expired motor cycle learner's permit
21 shows my address as Apartment 2302 in 668 Bourke Street.
22 Now, there's no date of issue on this, but it – my
23 recollection is that I last rode a motor cycle on the day
24 I got that permit and it was in spring of 2006.
25HIS HONOUR: Tell me, how long are permits issued for?
26MR JOHNSON: Generally 12 months, but this was interesting
27 because it was extended up to Christmas Day 2007, and my
28 memory is that, "Oh well, it's – there's a month's
29 extension." Now, VicRoads has printed that address on
30 the permit because that was my address per my driver's
31 licence records, so the sticky label – the moment - - -
32MR DEVRIES: He can't give evidence as to why VicRoads would do
33 something, Your Honour, he's not a representative of

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1 VicRoads.
2MR JOHNSON: Well, I can read the information VicRoads has
3 disclosed to say that my current address on my current
4 driver's licence is 7A Endeavour Drive, Torquay.
5HIS HONOUR: What was the previous address?
6MR JOHNSON: Well, at some date this address on the learner's
7 permit would match the VicRoads records, I think that's a
8 fair assumption.
9HIS HONOUR: No, it's not a matter of assumption; do you know
10 what addresses are located on the two or three underlays
11 under that?
12MR JOHNSON: Yes, Your Honour, I strongly believe and I'm
13 confident that the address immediately under this label,
14 the current 7A Endeavour Drive, was the 2302, 668 Bourke
15 Street.
16HIS HONOUR: Is that a matter of your memory, or is that a
17 matter of your inference?
18MR JOHNSON: It's a matter of memory, and I think it's
19 corroborated by the - - -
20HIS HONOUR: No, it's not a matter of corroboration; it's a
21 matter of your memory.
22MR JOHNSON: Thank you, Your Honour.
23HIS HONOUR: It's your best memories of the second-last address
24 is 2302?
25MR JOHNSON: Yes.
26HIS HONOUR: Yes?
27MR JOHNSON: The label immediately beneath that would be either
28 my previous apartment, 909 at Bourke Street, maybe, but
29 it was probably 2 Dorrington Street. And I say that
30 because the address on the licence would have matched my
31 banking documents, and as I owned 2 Dorrington Street and

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1 all of my mail has been redirected to my GPO from
2 2 Dorrington Street - - -
3HIS HONOUR: There's, I think, a photocopy of your licence in –
4 I think it might be Exhibit 5 or Exhibit 1, which has
5 2 Dorrington Street on it.
6MR JOHNSON: Yes, up to and including the loan applications for
7 Queen Street, which would have been in 2005.
8HIS HONOUR: Yes.
9MR JOHNSON: And certainly up until this year, the 2007/2008
10 tax return, I've always kept 2 Dorrington Street, Point
11 Cook as my residential address for income tax purposes.
12 Now, if I may digress onto that point, only to say well
13 that is simply and address of a residence that I have.
14 Once of the reasons for not changing my formal address
15 with VicRoads and the tax office is for borrowing
16 purposes borrowers like to see consistency in documents,
17 they like to see you in, you know, at least two year's
18 employment or three years of self-employment, and they
19 like to see some stability in your residential address.
20 And, as I owned a residence, I still even this day don't
21 think that (indistinct) if you have a choice of
22 residences to list. Changing things unnecessarily means
23 you (indistinct) change, whereas if you keep the status
24 quo – I've never used, for example, Bourke Street
25 addresses as my residence on my tax returns; you simply
26 don't need to.
27 My postal address for ATO purposes has always been a
28 GPO box for over a decade. There was a move from
29 Nicholson Street to Dorrington Street, Point Cook, I
30 still don't even today – 2 Dorrington Street, Point Cook,
31 but on that basis there's nothing to change – to create a

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1 need to explain a change at the present time. As soon as
2 that property is sold – well no, look, given the court
3 orders of Justice Cavanough and Justice Hansen that's why
4 my tax return showed a change of residence to 10
5 Hawkhurst Court, Hoppers Crossing for my 07/08 tax return
6 which was done in July of this year, the first week of
7 July this year. Otherwise that too would have shown
8 2 Dorrington Street, Point Cook. There's no need to
9 change it. I have brought in a few exhibits, Your
10 Honour.
11HIS HONOUR: Thank you. Now, that's the (indistinct) we're
12 having to do, so we have your learner's permit now
13 photocopied; that was Exhibit K. Exhibit K will now
14 read, Photocopy of learner's permit, and then the same
15 number that's notated here of the defendant and I will
16 have returned to you your learner's permit.

17
18#EXHIBIT K - (Amended) Photocopy of learner's permit.
19MR JOHNSON: Do we need to note in the exhibit that the
20 original was sighted?
21HIS HONOUR: It's already in the transcript.

22MR JOHNSON: Thank you, Your Honour. Your Honour, in my
23 terminology, and I am digressing as defence counsel, I
24 guess, for just a minute. My hills and valleys, last
25 week was a Mount Kosciuszko for me because I did not
26 sleep the Monday night before trial because I was
27 preparing and I went through long - - -
28HIS HONOUR: What are you talking about now?
29MR JOHNSON: I'm trying - - -
30HIS HONOUR: Are you going to hours of work are you?
31MR JOHNSON: I'm trying to explain Your Honour that I have a
32 number of exhibits here that I have not had time to

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1 photocopy overnight. Also, I have not had a chance to
2 look at the financial figures, so I'll have to use my
3 chicken scratch list, until - - -
4HIS HONOUR: You just proceed, your in re-examination. I told
5 you ten minutes ago not to speechify?
6MR JOHNSON: That was the extent of my language.
7HIS HONOUR: Yes, well you've (indistinct)?
8MR JOHNSON: I wish to apologise for not having already copied
9 the document - - -
10HIS HONOUR: Don't bother apologising, let's just proceed with
11 your re-examination?
12MR JOHNSON: Thank you, Your Honour. I have here - this is on
13 the questions in cross examination to the effect that my
14 apartment was my workplace, not my residence. And in
15 support of my evidence that the guts of my work was done
16 just like an employee out of an office at Primelife and
17 at Barwon Water. Barwon Water don't publish, they don't
18 even have readily principal fund - - -
19MR DEVRIES: Firstly Your Honour, this is hearsay as to what
20 Barwon Water may or may not do. Secondly Your Honour, I
21 would object to any material being - any exhibit being
22 tendered during re-examination, particularly as these
23 issues were clearly on the table during and prior to
24 Mr Johnson's giving of evidence - - -
25HIS HONOUR: Documents can be tendered in re-examination if
26 their relevant. If you are taken by surprise by them I
27 would permit you to cross examine on them.
28MR DEVRIES: May it please Your Honour.
29MR JOHNSON: I just wish to - - -
30HIS HONOUR: No, I want to firstly know what are you actually
31 producing?

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1MR JOHNSON: Just - I just want to produce the first page of an
2 internal extension list, internal extension list from
3 Primelife corporation, which shows me, James H Johnson,
4 my internal four figure extension, my then mobile phone,
5 one of the stolen phones and the designation legal
6 counsel (PT), which is part-time. I just wish to tender
7 that.
8HIS HONOUR: What to do, to prove that you were working there?
9MR JOHNSON: To prove that I was treated, operationally like a
10 part-time employee of Primelife.
11MR DEVRIES: That's never been an issue Your Honour.
12HIS HONOUR: Well it's not really relevant but if he wishes to
13 tender it, it's probably quicker that I receive it as a
14 exhibit. I fail to see the relevance.
15MR JOHNSON: The relevance is where did I do my work, that I
16 didn't make these up.

17
18#EXHIBIT 49 - Photocopy Primelife corporation internal
19 extension list as at 10 August 2006
20I submit that it's only the front page that's relevant Your
21 Honour. Mr Devries has raised as an issue I've let go to
22 my credit, my criticisms of Federal Magistrate O'Dwyer,
23 under cross examination of me. And an affidavit of mine
24 in the Federal Magistrates' Court proceedings is tendered
25 as - - -
26HIS HONOUR: No, I think I refuse to receive the tender of
27 that. One line out of it was referred to. You've
28 already given re-examination on that. I have expressed a
29 very strong view that it's peripheral.
30MR JOHNSON: I wish to give evidence of my raising those issues
31 in a professional manner before Federal Magistrate
32 O'Dwyer and him dealing with them on the professional

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1 basis at the hearing on the 21 August 2008.
2HIS HONOUR: You've heard what I've said. When someone's in
3 danger of going into the lion's den just simply to
4 recover your shoelace. The first rule that you learn
5 when you become an advocate.
6MR JOHNSON: Thank you, Your Honour. I've learnt many rules in
7 the last 8 days. I won't proceed with that line of
8 re-examination. I'll return to my script. Your Honour
9 where I got to yesterday was the year 2000 Valentine's
10 card, didn't I?
11HIS HONOUR: Yes.
12MR JOHNSON: I re-examined - - -
13HIS HONOUR: Yes, you explained that.
14MR JOHNSON: Mr Devries questioned me regarding the
15 Magistrates' Domestic Violence Act application I brought
16 against the plaintiff, in July which was referred to
17 Sunshine. The question was at p.695 of the transcript,
18 Lines 22-25, "You also issued other proceedings in the
19 State Magistrates Court that are initiated in Geelong".
20HIS HONOUR: Sorry, which page are you on?
21MR JOHNSON: Page 695, Your Honour. Your Honour, I issued
22 those proceedings and I submit that's a demonstration of
23 my intention to vindicate my rights. My concern was the
24 unlawful taking of my documents in November, certain
25 other actions that followed. Also my concern about the
26 incident at the Cressy house, I think it's the 30 - the
27 29 or 30 - probably the 30 September 2007. There were
28 delays, 30 September, 16 November 07, to I think early
29 April 08. The delays are occasioned by me losing the
30 support of my external legal advisers, Leanne Kelly &
31 Associates and the fact that it took months for that

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1 withdrawal of support to be communicated to me. May I
2 tender in re-examination a copy of that application, Your
3 Honour?
4HIS HONOUR: In fact I could hardly the see the relevance of
5 that one sentence in cross-examination, but if you wish
6 to because it was - - -
7MR DEVRIES: I object, Your Honour. The only point of raising
8 that was in - - -
9HIS HONOUR: He had a familiarity with court process?
10MR DEVRIES: No. What Mr Johnson had said to Your Honour on a
11 number of occasions is that – and in various
12 documentation that he'd been dragged to court by my
13 client. It was only to show that he was the applicant
14 there and was - - -
15HIS HONOUR: Instigated?
16MR DEVRIES: Instigated that and also the Family Law
17 proceedings. The same question was put in respect to
18 that. This does not arise out of cross-examination, Your
19 Honour.
20HIS HONOUR: It was hard to discern your purpose and in fact
21 the purpose hardly had much relevance anyway.
22MR DEVRIES: That's very true, Your Honour.
23MR JOHNSON: I can explain the purpose quickly. I - - -
24HIS HONOUR: I don't think we'll have it explained. You wish
25 to tender that document?
27HIS HONOUR: I'll receive that document. I regard the issue as
28 best borderline and I'll receive that as Exhibit 50.
29MR DEVRIES: Your Honour, it's - - -

30
31#EXHIBIT 50 - Copy of complaint and summons for an
32 intervention order.

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1- - -with respect, Your Honour, this is a back door way by
2 Mr Johnson of getting in the matters on 29 September
3 2007. That - - -
4HIS HONOUR: I'm receiving the exhibit. Look, you don't give
5 me much credit if you think I'm going to receive this as
6 his proof – the proof of its contents if that's your
7 concern?
8MR DEVRIES: I wasn't suggesting that with respect, Your
9 Honour.
10HIS HONOUR: That's Exhibit 50 - - -
11MR DEVRIES: May it please, Your Honour.
12HIS HONOUR: This case has taken far too long.
13MR JOHNSON: Sorry, was that 50 or 51, Your Honour?
14HIS HONOUR: Fifty.
15MR JOHNSON: Thank you, Your Honour. Your Honour, I'm also
16 tendering that on the basis of my concerns that I'd
17 expressed dozens of times to the other legal
18 representatives in this affair, and the comments I gave
19 to Dr David List and some of the discussion we had on
20 that initial application when Dr David List was in the
21 box. I have treated very gingerly and patiently with
22 Ms Cressy because of certain behaviours of Ms Cressy,
23 that I was concerned may trigger harm to the children and
24 or other people.
25HIS HONOUR: What is the relevance of this?
26MR JOHNSON: The relevance of this is that I have tried to be
27 guarded. I have tried not to even reveal to the other
28 legal representatives involved substantial of Ms Cressy's
29 nature.
30HIS HONOUR: What's the relevance of this to an application in
31 this case by the plaintiff - - -

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1MR JOHNSON: I have concerns - - -
2HIS HONOUR: Just a moment.
3MR JOHNSON: Sorry, Your Honour.
4HIS HONOUR: I cannot see the relevance for an application in
5 this case by the plaintiff against you under Part 9 of
6 the Property Law Act, or in relation to a constructive
7 trust. I see absolutely no relevance of it to any of the
8 four causes of action asserted by you in your
9 counterclaim.
10MR JOHNSON: It is relevant to my assertions of the 2nd and
11 3rd defendants by counterclaim have harmed me by virtue
12 of recklessness amounting to fraud, or on Callanan's case
13 principles, and therefore - - -
14HIS HONOUR: That's not in your counterclaim.
15MR JOHNSON: I don't think malfeasance needs to be pleaded
16 expressly, Your Honour. I think - - -
17HIS HONOUR: That is not in your counterclaim. This evidence
18 is irrelevant. You're wasting time. I warned you
19 yesterday if you sought to abuse your right to
20 re-examination I will terminate it. You are - - -
21MR JOHNSON: I'll move on then - - -
22HIS HONOUR: In your own interests you ought to be seeking
23 simply to address the matters that relate to the pleaded
24 claims on both sides. To deal with issues which any
25 intellect could say was central to those issues.
26MR JOHNSON: Your Honour, I believe they're relevant to the
27 exhibits that Ms Sofroniou put into evidence, regarding
28 my counterclaims.
29MS SOFRONIOU: I object to that, Your Honour. It doesn't arise
30 out of cross-examination at all.

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1MR JOHNSON: I believe it arises out of a suggestion that I was
2 – in translation bullying my good friends at Harwood
3 Andrews to try and get them to drop the case.
4HIS HONOUR: The allegation was that you made threats in your
5 letters, and you did so with the intention to try to
6 intimidate Ms Cressy's then solicitors from acting for
7 her.
8MR JOHNSON: I would say that I was frustrated by my inability
9 to explain certain behaviours of Ms Cressy, because of
10 fear that that may trigger further of those behaviours by
11 Ms Cressy against the children. And indeed I did have
12 some fears about the fact that Ms Cressy's not in court
13 today.
14HIS HONOUR: So that is your explanation for those letters?
15MR JOHNSON: That is my explanation at this point. I will come
16 back to the letters - - -
17HIS HONOUR: We do not need any detail on that and I wouldn't
18 permit it. Move on.
19MR JOHNSON: Thank you, Your Honour. Yes. The suggestion was
20 and this I believe went to credit that I am telling one
21 story to the Federal Magistrates' Court, in an affidavit
22 about my relationship with Ms Cressy, and I'm telling a
23 different story to Your Honour in my affidavits and in my
24 evidence in this proceeding, Your Honour. May I say that
25 with the documents for the – certainly the application in
26 and that initial affidavit of mine of September 2007,
27 that I'm pretty sure by memory is an exhibit in evidence
28 for Your Honour.
29HIS HONOUR: Yes.
30MR JOHNSON: I was guided by the advice given to me by my
31 accredited Family Law specialist Ms Leanne Kelly, and one

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1 or two discussions that I've had with other accredited
2 Family Law specialists who work on retainer from
3 Ms Kelly. I had (indistinct) $360. She knew this area
4 of law and practice of which I am a complete novice, or I
5 certainly was and I reckon I still am even at this later
6 stage, Your Honour. I relied on her judgment in
7 preparing that affidavit. I actually take full
8 responsibility for the contents because I – I signed off
9 on it.
10HIS HONOUR: You read the affidavit before you signed it?
11MR JOHNSON: Of course, Your Honour.
12HIS HONOUR: You took an oath on the affidavit?
13MR JOHNSON: I did, Your Honour.
14HIS HONOUR: You knew that that affidavit by that oath you took
15 a solemn pledge that the contents of the affidavit were
16 true and correct?
17MR JOHNSON: I did, Your Honour, and hence the evidence I've
18 just given in re-examination that I accept full
19 responsibility for it. Now, Ms Kelly and I sat down.
20 She gave me advise. She said, well tell me your living
21 arrangement. I described it, as I have been in these
22 proceedings in my evidence Your Honour. She said, well,
23 you're a non-custodial parent. It's very hard to assess
24 your rights. You say that you did sleep over on
25 occasion.
26MS SOFRONIOU: Your Honour, I object to my friend - it's not
27 the examination. It's an amplification of a point that's
28 already been touched upon.
29HIS HONOUR: I think what he's trying to do is explain what is
30 stated in that affidavit.
31MS SOFRONIOU: I - then I withdraw it Your Honour. I

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1 understood it as being the details of Ms Kelly's
2 representation and that led to the swearing of the
3 affidavit.
4HIS HONOUR: That's what I think it is.
5MS SOFRONIOU: Well Your Honour - - -
6HIS HONOUR: He's trying to give an explanation as to why he
7 saw all the affidavits.
8MS SOFRONIOU: If Your Honour finds it useful then I withdraw
9 the objection.
10HIS HONOUR: I don't know if it's useful, but I can't shut it
11 out if it relates to an issue arising - - -
12MS SOFRONIOU: If it pleases the court.
13HIS HONOUR: - - - in cross-examination. You say that Ms Kelly
14 formulated that - drafted that affidavit, did she?
15MR JOHNSON: Yes, yes I believe that those particular words um
16 are suggested to be by Ms Kelly. Now I believe I was -
17 been told not to rely on legal advise there. I agonised
18 over that formula. I said quite categorically I was not
19 in the residence, but I would see the children a couple
20 of days a week, and I'll come back to that point in a -
21 in a moment Your Honour. I would occasionally sleep over
22 and - and she would ask how often, and I would say one,
23 sometimes two nights a week. Um, maybe an occasional
24 weekend as well, for a night or so. Um, I was spending
25 more time during that period the children were at Point
26 Cook and the children Altona. In the scheme of things I
27 would have an occasional sleepover with my children in
28 Belgrave, but in the scheme of things I would have more
29 sleepovers, just like an extended member of the family I
30 submit Your Honour. At the Cressy household then I would
31 (indistinct).

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1MR DEVRIES: this is just restating evidence in chief Your
2 Honour.
3HIS HONOUR: I agree. You're now diverting - you're giving an
4 explanation of what was in the affidavits - - -
5MR JOHNSON: May - may - - -
6HIS HONOUR: You rightly identified that there appears to be -
7 just a moment. I think one at a time is good. You
8 rightly identified that there appears to be a discrepancy
9 between the contents of your affidavit and what you have
10 been putting to this court, and you are explaining to me
11 that you, as I understand it, told Ms Kelly what you have
12 put to this court about your living arrangements and that
13 based on that she advised you that the affidavit should
14 take the form that it is in. Is that what you're putting
15 to this court?
16MR JOHNSON: With the proviso that provided that I was happy to
17 swear my oath in (indistinct) words, yes Your Honour.
18HIS HONOUR: Yes.
19MR JOHNSON: That is what I'm putting.
20HIS HONOUR: Who actually drafted the affidavit - actually
21 wrote it out?
22MR JOHNSON: Ms Kelly drafted it in front of me.
23HIS HONOUR: Yes. And you knew of the contents of it?
24MR JOHNSON: Yes.
25HIS HONOUR: And you were content to depose as to the truth of
26 it?
27MR JOHNSON: Yes, and - and if I may say just to
28 summarise - - -
29HIS HONOUR: If it was untruthful, would you have sworn it?
30MR JOHNSON: No Your Honour.
31HIS HONOUR: Am I entitled to rely on that affidavit there of

2Cressy
1 course being the truth?
2MR JOHNSON: What - um, yes Your Honour, and what would - I
3 would say is - - -
4HIS HONOUR: So I'm entitled, insofar as it contains any
5 admission, to regard those admissions by you as truthful
6 admissions on oath?
7MR JOHNSON: What I would say is - - -
8HIS HONOUR: Is that right? I'm just trying to clarify.
9MR JOHNSON: Yes, as long as I can qualify that - - -
11MR JOHNSON: - - - answer, yes Your Honour. The - the tidemark
12 fluctuates up and down according to high tide, low tide.
13 It's still the tidemark.
14HIS HONOUR: Yes.
15MR JOHNSON: Now the truth can be told um, within a band of
16 descriptions. You could put the truth at its strongest
17 or you can put it the truth at its weakest. It remains
18 the truth Your Honour.
19MR DEVRIES: This is - - -
20HIS HONOUR: Just a moment Mr Devries. Yes.
21MR JOHNSON: I say there's not the material - there is not such
22 a substantial difference between what was encapsulated in
23 those paragraphs.
24HIS HONOUR: Yes.
25MR JOHNSON: And the true situation - those paragraphs of -
26 those affidavit of mine - - -
27HIS HONOUR: Are substantially true?
28MR JOHNSON: No, I'm - I'm saying that they're consistent.
29 There is a discrepancy, but it's like the discrepancy
30 between the high tide and the low tide, it's still the
31 tide, it's still the truth Your Honour.

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1HIS HONOUR: Are you saying they're untrue?
2MR JOHNSON: No, no, no.
3HIS HONOUR: Which you better not answer that.
4MR JOHNSON: No, no, no. I'm - I'm saying that both stories
5 are true and consistent, having regard to the contents.
6HIS HONOUR: Thank you Mr Johnson.
7MR JOHNSON: The high - the tide level is the tide level,
8 whether it's high tide or low tide, it's still the tide
9 level.
10HIS HONOUR: So the truth can have two meanings can't it?
11MR JOHNSON: John Roulos v. Saul and a noted - - -
12HIS HONOUR: I'm not interested in John Roulos v. Saul, I'm
13 interested in Harold James Johnson telling the truth.
14MR JOHNSON: The truth can - um, there can be a substantial
15 discrepancy between - - -
16HIS HONOUR: You say?
17MR JOHNSON: - - - the truth and what is provable truth - - -
18HIS HONOUR: So what you're saying is this?
19MR JOHNSON: - - - and the perception.
20HIS HONOUR: Mr Johnson are you saying to me that you believe
21 that there are shades of truth when you're on your own?
22MR JOHNSON: What I'm - - -
23HIS HONOUR: Is that right?
24MR JOHNSON: - - - what I believe is - - -
25HIS HONOUR: Do I understand - I'm just trying to clarify this.
26 Is that what you're putting to me as your evidence? That
27 when you say something on your oath, you do so on the
28 basis that there are shades of truth, and you can vary
29 your evidence within those shades?
30MR JOHNSON: No, I'm not - I'm not saying anything that might
31 be might be out of - - -

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1HIS HONOUR: Yes, that seems to me what you said to be saying.
2MR JOHNSON: I'm saying - no, no, no. I'm getting beyond my
3 philosophical abilities, but what I'm saying is that
4 there is no such thing as an absolute truth, because what
5 is the absolute truth of a situation - - -
6HIS HONOUR: I'm not interested in philosophy.
7MR JOHNSON: - - - that will vary from the speaker to - - -
8HIS HONOUR: I'm interested in what you - - -
9MR JOHNSON: - - - the recipient and according to - - -
10HIS HONOUR: I'm interested in whether what you regard yourself
11 as the truth when you say something on your oath as an
12 officer of the court, either on affidavit or on oath to
13 me.
14MR JOHNSON: I - I am saying that what is in this paragraph
15 falls within the boundaries of truth.
17MR JOHNSON: Or a description of the truth. I will - if I had
18 described my relationship with the children any more
19 highly, it would have become untrue. OK? If I'd
20 described my relationship with the children more lowly,
21 by putting in more detail and clutter, and explained that
22 I wasn't in residence because of partner, et cetera, et
23 cetera, bearing in mind the objective I was told the
24 objective I was told for short affidavits in the Federal
25 Magistrates' Court, there's an enormous case load and
26 work load within each case. Affidavits are required to
27 keep short. Um, that was the point I was making that the
28 truth can depend on the speaker, the recipient and the
29 constraints of the circumstances.
30HIS HONOUR: That's your understanding of the truth?
31MR JOHNSON: Yes, Your Honour, if you - - -

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1HIS HONOUR: Thank you Mr Johnson.
2MR JOHNSON: - - - were allowed more latitude you can explain
3 - in detail and you would give a different version of the
4 truth if you allowed no detail at all and you have to
5 give a simple yes or no without any qualification
6 whatsoever.
7HIS HONOUR: Yes, now, what's your next point.
8MR JOHNSON: I fear that was more submission, than meant to
9 Your Honour. I'm not sure.
10HIS HONOUR: No.
11MR JOHNSON: Thank you, Your Honour. The second point was
12 about the original application for Treece and Skye, now
13 that - as well as Illyana. That was solely acting on
14 Ms Kelly's advice to me, that I was a person interested
15 in the welfare of the two children and had standing to
16 bring the application. That went against my better
17 judgment. I did that - and it went contrary to the free,
18 casual, off-hand advice I'd received from one other
19 accredited family law specialist (indistinct). That was
20 the advice of my new accredited family law specialist,
21 Ms Leanne Kelly, who I assumed to have expertise in the
22 area. It was also the wishes of one or both of Skye and
23 Treece. Skye believing all of his life, up until these
24 last few (indistinct) dad. I had promised Skye that I
25 would do my best for him. For that reason the
26 application was issued with - in respect of all three
27 children, rather than just Illyana. I myself had doubts
28 about the legal validity about that - - -
29HIS HONOUR: I don't think it was doubts, the matter is - it
30 seems to be common ground that you have always acted as a
31 father to the three children.

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1MR JOHNSON: Yes, but in exactly the same way as I have acted
2 since clear separation with Mrs Julie Johnson.
3HIS HONOUR: Yes, to your children by her, I understand that.
4MR JOHNSON: Non resident for - - -
5HIS HONOUR: I understand, but they don't really have any
6 relevance to this proceeding. Now, let's move on.
7MR JOHNSON: Thank you, Your Honour. Sorry, I did instruct
8 Ms Kelly to remove the two boys from the application in
9 November and December 2007, but she had more or less
10 dropped my case by then and - without telling me and
11 those instructions were never acted on. I made
12 subsequent comments in discussions in these proceedings
13 in June this year and also before Federal Magistrate
14 O'Dwyer in - if not in May - I'm sorry I will move on
15 now.
16HIS HONOUR: Thanks.
17MR JOHNSON: I'm looking at p.7 - - -
18HIS HONOUR: Have you got much re-examination to go, yes or no?
19MR JOHNSON: I'm not sure Your Honour.
20HIS HONOUR: Right, I have a note here that Mr Martin Telly has
21 arrived.
22MR JOHNSON: May I suggest that we - - -
23HIS HONOUR: Well we will interpose to sum it all up. But he's
24 a process server is he?
25MR JOHNSON: Yes, he was - - -
26HIS HONOUR: Yes, I don't need a speech about him, we'll have
27 him in.
29HIS HONOUR: You may stand down, go back to the Bar table.
30 We'll have Mr Martin Telly, thanks.
31<(THE WITNESS WITHDREW)

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1<MARTIN BRYAN TILLY, sworn and examined:
2MR JOHNSON: Thank you, Your Honour. Good morning, Mr Tilly,
3 I'm James Johnson and you've been engaged AA Process
4 Servers to effect urgent service on a Mr - - -?---That's
5 correct, yes.
6HIS HONOUR: Your full name sorry is?---Martin Bryan.
7Martin Bryan Tilly?---Yes.
8Your address Mr Tilly?---14.
9Yes?---Redfield.
10Yes?---Court, Wheelers Hill.
11Thanks.
12MR JOHNSON: Thank you, Mr Tilly. You live around the corner
13 from Mr Wittekind almost, Wheelers Hill, same suburb?
14 ---Within a kilometre, yes.
15When did you attempt service on - - -
16HIS HONOUR: This is of a subpoena directed to Mr Wittekind, to
17 attend court today, is that right?---Yes, it is.
18Yes, and did you, yesterday you received that subpoena and
19 seeked to serve it on Mr Wittekind?---Yes, I did.
20Where did you go for that purpose?---On 10 December 2008 at
21 6.40 p.m., 8.10 p.m., 9.50 p.m. and again this morning at
22 6.30 a.m., I attempted service of the subpoena of the
23 witness, Steven Phillip Wittekind at the address
24 116 Brandon Park Drive, Wheelers Hill. I do an attempt
25 affidavit to set that out to - - -
26Yes, thank you. Can you give me those times again please?---On
27 10 December at 6.40 p.m., 8.10 p.m. and 9.50 p.m.. On
28 11 December at 6.30 a.m..
29When you went to those premises was there any sign of
30 habitation?---No, there was no sign - there's - there was
31 no contact at the address, but I've been doing this since

2Cressy
1 1973 on and off, there was somebody inside the house,
2 yes, in my own mind. I could hear movement. This
3 morning at 6.30 a.m., I had no contact, I went and stood
4 around the corner behind the bushes and there was
5 movement on the drapes, so there was - in my mind there
6 was definitely somebody there. But, that's - that's just
7 in my -
8You knocked or - - -?---I really knocked on the door, banged on
9 the door. The security lights at the house, the last
10 - last night I went down the side of the house, beside
11 the fence, very close to the house, so the lights
12 wouldn't come on, but I still couldn't get any contact.
13Was there any sign of internal lights on?---No, there was no
14 lights on, no vehicle sighted.
15No vehicles at all? Is it a garaged - - -?---A double garage
16 there, yes.
17One which was shut or open?---Shut at both times, and all
18 attempts.
19Any sign of any animals, dog's?---You hear two dogs barking but
20 you couldn't be sure if it was in that property. It
21 sounded like it was out the back of the garage. But it
22 could have been the house on the other side or the house
23 - 'cause there was two they were sort of barking at each
24 other, I felt it could be either side. I couldn't be
25 certain there was a dog there.
26Yes, I follow. Was there any other sign of either habitation
27 or lack thereof? For example were there any newspapers
28 left - - -?---There – there was a newspaper there at 6.30
29 this morning in the driveway. Wrapped up. You know, the
30 – how the newspaper - - -
31Yes, with the plastic around it?---Yes.

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1None there yesterday?---Last night there was none there, no.
2No mail left?---No mail sighted at the address at all.
3Do you know Mr Wittekind at all?---No, I do not.
4Did you speak to any neighbours?---Yes, I did. I spoke to
5 neighbours on either side on my second attempt last
6 night. They believe the defendant or the witness lives
7 at that address, and they thought he was home.
8What's the firm you work for?---This one was for AA
9 Professional Document Service.
10You work as a freelance do you?---Yes. I work for probably
11 four or five different process companies, yes.
12That's not unusual with process servers is it?---It's a good
13 way to survive.
14Sorry?---It's a good way to survive, yes.
15MR DEVRIES: Like a barrister.
16HIS HONOUR: Yes, yes - - -?---Don't put all eggs in one
17 basket.
18Is there anything else you can usefully tell the court from
19 your experience?---I just felt that there was somebody
20 inside the house. It's – you know, they could – it may
21 be the dog was inside the house and moved the curtains
22 this morning but it just – you saw – it added up to me
23 that there was somebody there.
24At 6.40 when you went there last night were the drapes closed?
25 ---Yes, that's – I looked in – I'll explain the house if
26 – if it's more convenient. The – the white fence out the
27 front. A long cobble type driveway to the front door.
28 You enter the front door from the driveway on the
29 left-hand side. There's a lounge room window as you walk
30 in from the driveway. Last night I couldn't see through
31 those drapes. This morning at 6.30, yes, I could. I

2Cressy
1 could see inside the premises
2Thanks, Mr Tilly. Now, is there anything else you wish to ask,
3 Mr Johnson? I've sought of taken it out of your hands.
4MR JOHNSON: I've got nothing I can think to ask, Your Honour.
5 Thank you.
6HIS HONOUR: Thank you very much for your assistance, Mr Tilly?
7 ---Thank you.
9Thanks, Mr Tilly. Mr Johnston, it becomes a bit – well,
10 chasing the tail of the animal that's chasing the tail.
11MR JOHNSON: It's extraordinary, Your Honour, yes.
12HIS HONOUR: Based on that I could I suppose make an order for
13 substituted service of Mr Wittekind. Whether that
14 brought him to court and then that – all that would do is
15 to prove for you hopefully that conduct had been paid on
16 the service of Mr Cockram.
17MR JOHNSON: Yes, yes.
18HIS HONOUR: This is becoming a long way around. The
19 alternative is to issue another subpoena addressed to
20 Mr Cockram, which strikes me now as being the wisest
21 course for you. Now, you're acting for yourself. You
22 make the choice but it would seem probably the more
23 direct route is to re-subpoena Mr Cockram.
24MR JOHNSON: Is that the only way, Your Honour. Both – I have
25 given evidence that I gave Mr Thompson the conduct money.
26HIS HONOUR: I understand - - -
27MR JOHNSON: Mr Thompson has given evidence that - - -
28HIS HONOUR: I can understand your sense of grievance on this
29 and I respect that but the difficulties with a warrant of
30 arrest particularly in civil case is pretty rare, and the
31 law says that he is not obliged to obey a subpoena unless

2Cressy
1 conduct money is paid to him. There's no proof it was
2 and indeed based on what Mr Thompson said – and if I may
3 so my recollection of affidavits of service of documents
4 like this is that if the process server does serve
5 conduct money it is deposed to. So that I can't really
6 rely on any sort of presumption of regularity in your
7 favour, not when I'm being asked to invoke a strict court
8 process because the apprehension of a person involves the
9 deprivation of his liberty in circumstances where he
10 hasn't been heard.
11MR JOHNSON: Your Honour, I appreciate the difficulty. Even I
12 understand that the conduct money has to be adduced in
13 evidence. One of the suggestions – I can't recall if
14 Mr Thompson gave this in evidence in the box or with me
15 outside – was the objective was simply to get
16 Mr Wittekind to re-swear the affidavit of service on
17 Mr Cockram in proper format.
18HIS HONOUR: I agree but - - -
19MR JOHNSON: That he's been quite recalcitrant and - - -
20HIS HONOUR: As long as there's before me proper, sworn proof
21 of service of the conduct money that will be sufficient,
22 although I - - -
23MR JOHNSON: There is a partial photocopy of the $10 note in
24 the materials.
25HIS HONOUR: That's not sufficient. My concern now is with
26 Mr Wittekind. It seems to me that evading this court, or
27 there's at least a reasonable possibility of that, and
28 the - - -
29MR JOHNSON: Excuse me - - -
30HIS HONOUR: - - -his affidavit. I would not be satisfied with
31 anything other than proper proof of the service of that

2Cressy
1 conduct money.
2MR JOHNSON: It was put to me, Your Honour, by Mr Thompson that
3 Mr Wittekind might have a dayshift job and for that
4 reason he's perhaps unable to take leave from an employer
5 or something like that.
6HIS HONOUR: He could've been in contact. Now, the only - - -
7MR JOHNSON: Exactly - - -
8HIS HONOUR: I think we're now wasting time. The choice is
9 really yours. I can if you like make an affidavit – make
10 an order for substituted service on Wittekind of the
11 subpoena issued by you yesterday. Substituted service to
12 the effected by leaving a copy of the subpoena at his
13 premises. I think it – I can't read my own writing now.
14 It was 116 Brandon Park Road, Wheelers Hill, I think and
15 I'd be prepared to do that. But whether that brought
16 Mr Wittekind to court to prove what you want to have
17 proven, to base the issue of a warrant of apprehension on
18 Mr Brandon - - -
19MR JOHNSON: Mr Cockram.
20HIS HONOUR: Mr Cockram. It's a long way home. It seems to me
21 you're better off simply re-subpoenaing Cockram.
22MR JOHNSON: Who has already received a subpoena and I submit
23 that - - -
24HIS HONOUR: I follow that. Yes, the choice is yours.
25MR JOHNSON: - - - may well ignore it again the second time.
26HIS HONOUR: The choice is yours.
27MR JOHNSON: All right, I will try to organise a re-subpoena of
28 Mr Cockram during the luncheon interval, Your Honour.
29HIS HONOUR: Yes, well I agree, I think it's the only way you
30 can do it. We'll have to then deal with what that does
31 to this case in a moment, but what I wish to do is to

2Cressy
1 complete your re-examination; it seems to be a rather
2 staggered affair.
3MR JOHNSON: Yes, Your Honour.
4HIS HONOUR: All right, we'll finish your re-examination.
5<HAROLD JAMES JOHNSON, recalled:
6HIS HONOUR: Now, - - -
7MR JOHNSON: Your Honour, I was answering a question regarding
8 that hearing before Federal Magistrate O'Dwyer on, I
9 think it was 21 August, - yes. This is the bottom of
10 p.701 of the transcript.
11HIS HONOUR: 700 and?
12MR JOHNSON: 701, Your Honour. I began – well, part-way
13 through my answer, 701 of the transcript, Line 28, "I
14 discussed my concerns frankly with Federal Magistrate
15 O'Dwyer on the basis that", dah, dah, dah, dah, dah. The
16 words that I said to Federal Magistrate O'Dwyer were
17 that, "Your Honour, with respect, you're a professional
18 man and, like all professionals, we encounter some
19 criticism from time to time, sometimes that criticism
20 will be founded. And where the criticism is justified
21 the complaint will be vindicated." Mostly - - -
22HIS HONOUR: Are we back to this issue about Federal Magistrate
23 O'Dwyer - - -
24MR JOHNSON: I just want to go – because it's chronologically
25 come up again. I have one more sentence, Your Honour.
26HIS HONOUR: Yes, it might have chronologically come up again,
27 but do you really need that shoelace?
28MR JOHNSON: I believe I do in terms of me being – you know,
29 attacking Mr O'Dwyer's - - -
30HIS HONOUR: Well, have you heard my view about it? You might
31 persuade me that it's actually a matter of relevance, and

2Cressy
1 if it is you might come off second-best on that.
2MR JOHNSON: I think – I mean - - -
3HIS HONOUR: If you want to you can go back and get your
4 shoelace, but you can buy another one.
5MR JOHNSON: Yes, Your Honour. Well, I wish I could buy
6 another one, Your Honour.
7HIS HONOUR: OK, keep going.
8MR JOHNSON: That is a relevant issue, the funds for replacing.
9 I'm continuing. I'll pass on, Your Honour. OK. There
10 were some questions – sorry, on p.709 of the transcript.
11HIS HONOUR: 700 and what?
12MR JOHNSON: 709, Your Honour. The entomology – this is
13 starting at Line 5 - - -
14HIS HONOUR: The use by you of the name Sutton Johnson - - -
15MR JOHNSON: Yes.
16HIS HONOUR: I think that has been pretty well explained.
17MR JOHNSON: It's not contested, that's right. There was an
18 envelope, I think it would have been around February 2000
19 where I, as a bit of a lover's - - -
20HIS HONOUR: You called yourself - - -
21MR JOHNSON: Cressy Sutton Johnson, yes, yes. I think that was
22 more putting out offers, including the word "husband" on
23 that card; bearing in mind that Miss Cressy partially
24 admits that we were not in residence together in February
25 2000. She admits for two months that she - - -
26HIS HONOUR: But let's worry about what Miss Cressy says - - -
27MR JOHNSON: Thank you, yes, that's right, I'm getting on to
28 submissions, Your Honour, that's right.
29HIS HONOUR: You are.
30MR JOHNSON: Yes.
31HIS HONOUR: Again.

2Cressy
1MR JOHNSON: But again, I never held myself out to anybody, and
2 that was just like a little lover's, or ex-lover's - - -
3HIS HONOUR: Yes, you've explained that.
4MR JOHNSON: Thank you, Your Honour. 710, and I'm probably
5 being a bit tedious, Your Honour, but at Line 18 I didn't
6 understand the question that Mr Devries was putting at
7 me. I think, like, "That was one of your (indistinct)
8 bones of contention with my client almost from Day 1 that
9 she continued to work as a prostitute?" Now, I think
10 what happened there was Mr Devries was saying,
11 "Well - - -
12HIS HONOUR: That's not what Mr Devries was saying. You agreed
13 when I rephrased the question that it was an ongoing
14 point of contention between you and Miss Cressy that she
15 continued to work as a prostitute.
16MR JOHNSON: Yes, Your Honour. Yes, Your Honour.
17HIS HONOUR: Right.
18MR JOHNSON: There was no admission by the plaintiff's side
19 to - - -
20HIS HONOUR: That doesn't matter; you explained in - - -
21MR JOHNSON: I didn't understand the question, Your Honour. I
22 didn't understand the question.
23HIS HONOUR: Yes, well that's why I rephrased it.
24MR JOHNSON: Thank you, Your Honour. And I would add
25 especially, extremely and more so after she told me that
26 she was pregnant and she thought that I might be the
27 father of the child.
28HIS HONOUR: Yes.
29MR JOHNSON: That seriously did my head in, in January and
30 February 2000.
31MS SOFRONIOU: Objection, Your Honour. That's not a

2Cressy
1
2 re-examination arising out of cross.
4MR JOHNSON: It was the biggest – at all times it was a bone of
5 contention, it was the – it was magnified a hundred fold
6 in size that particular bone was at that particular - - -
7HIS HONOUR: You agreed with that when I rephrased it, you
8 don't have to restate that is in agreement.
10HIS HONOUR: So try to move on to re-examination.
11MR JOHNSON: Thank you, Your Honour. Page 714 of the
12 transcript, Line 16, the question in cross-examination,
13 "You've alleged in various court documents, haven't you,
14 that my client makes as much as two to 3000 a week as a
15 prostitute?" I believe I've made it clear in cross-
16 examination as well that that was an estimate just for
17 the period that she's resumed prostitution in 2007 or
18 earlier, and I've also made it clear that I had no reason
19 to believe that she was working as a prostitute
20 from - - -
21HIS HONOUR: Yes, you've put - you've made it clear I think
22 yesterday that it was your surmise when you put those
23 matters in cross-examination you'd re-put them.
24MR JOHNSON: I had no evidence to - - - -
25HIS HONOUR: I understand.
26MR JOHNSON: - - - to believe that she might be working as a
27 prostitute from September 03 up until, um, August 07 Your
28 Honour.
30MR JOHNSON: And, um, I - there was lots of evidence. Her
31 studies, that I was giving her money et cetera, um, to

2Cressy
1 suggest contrary - - -
2MR DEVRIES: This is submission Your Honour.
3MR JOHNSON: I'm sorry - as I say, I'm not sure on the dividing
4 line Your Honour. OK. There were questions regarding my
5 cash flow.
6HIS HONOUR: Yes.
7MR JOHNSON: Page 717 of the transcript. Beginning right at
8 the top, saying, and this is Your Honour's words,
9 recording accurately that I said that I was earning about
10 300 or 400,000. Um, under cross-examination Mr Devries
11 suggested, if I may summarise that questioning, that my
12 evidence as to my expenditure, my cash out-flows did not
13 match my evidence of my cash in-flows, um, and that there
14 might be a shortfall. Um, that therefore I might um have
15 other sources of income or other sources of money. Now,
16 I'm not sure how much of that will be clarified out but
17 part of that was based on looking at my loan
18 applications, um, showing, um, well it was a loan
19 application of May 2005 I think, showing an income of -
20 so, if I can - if I can locate that exhibit, um I think
21 it was $240,000 was professional earnings (indistinct).
22HIS HONOUR: What are you talking about? That loan application
23 of August 2005, you had an income of I think 240,000
24 (indistinct).
25MR JOHNSON: I thought - I though it might have been May.
26HIS HONOUR: Is that the one you're talking about?
28HIS HONOUR: That would be Exhibit N. The loan application
29 regarding mortgage.
30MR JOHNSON: So August 2005?
31HIS HONOUR: Yes, I think that's the one (indistinct).

2Cressy
1MR JOHNSON: I just want to be clear that I explain that
2 because Mr Devries - - -
3HIS HONOUR: I don't need you to tell me why you need to
4 explain it. Let's just get the explanation for it.
5MR JOHNSON: Thank you Your Honour. Um, the figure for my
6 income then, if I may have a look at the exhibit please?
7HIS HONOUR: Yes. Exhibit N please.
8MR JOHNSON: Thank you sir. And it was the gross income per
9 annum figure. Now this is not my handwriting. It's
10 Mr Biyana's, but I've initialled it. Um, I believe I've
11 explained that when these documents were prepared, the
12 mortgage broker says, what are you currently earning, and
13 you tell him the current figure, which might have been
14 $300,000.
15HIS HONOUR: You say that wasn't the current figure. You say
16 that was a figure derived off an earlier tax return?
17MR JOHNSON: Correct. Because the - - -
18HIS HONOUR: Right. You've said - you've said that in your
19 cross-examination.
20MR JOHNSON: I have said it. Thank you. Thank you. So what
21 I'm - thank you Your Honour. Thank you Your Honour.
22HIS HONOUR: Pleasure.
23MR JOHNSON: OK, so I think the rest of it is submissions Your
24 Honour.
25HIS HONOUR: Yes, well don't go there.
26MR JOHNSON: No, that's right Your Honour. The submission is
27 the good - the good part. Um, p.724 of the transcript,
28 Line 20, the question from Mr Devries, "And you claimed
29 that you gave my client cash of four, five to $600 a week
30 to cover living expenses. Is that correct?" Constrained
31 from fully articulating the truth, in the circumstances

2Cressy
1 constrained to that simple yes version of the truth, um,
2 I said, "Yes".
3 I had in um my evidence, I believe, proposed to
4 tender up um, these documents, um, the handwriting is
5 mine and, um, Ms Cressy senior's. Um, deeds for the
6 period when all three adults and five children were
7 living at Point Cook. This is April and May 2003. And
8 in the hand writing I recognise as Ms Cressy senior, um,
9 there's references to me giving - or it's actually my
10 hand writing Your Honour, in an envelope with cash in it
11 as I described in my evidence in chief. Um, Ms Cressy
12 senior has dated it 21 May 2003. "Gail, $30 pay, $150
13 housekeeping" - - -
14MR DEVRIES: Your Honour, I object - - -
15HIS HONOUR: Just (indistinct).
16MR JOHNSON: - - - "$500 childcare", which a cheque. "Thanks,
17 James."
18MR DEVRIES: This doesn't arise out of cross-examination and if
19 it does, these are matters that should have been put to
20 Ms Cressy when she - Ms Cressy senior when she was there.
21MR JOHNSON: I did. Which - - -
22MR DEVRIES: I am very constrained in the - because of Browne
23 v. Dunn and in calling my client to rebut things that
24 were never put to her in examination in chief.
25HIS HONOUR: I've got it. Whose handwriting now is it?
26MR JOHNSON: Um, it's a mixture of mine and Ms Cressy senior.
27HIS HONOUR: Well it's not of Ms Cressy junior, so it's not an
28 admission by her. It's an out of court document by
29 Ms Cressy senior.
30MR JOHNSON: I did wish to tender this as evidence in chief at
31 the fact that Ms Cressy senior was doing office work for

2Cressy
1 me in that period and a little bit later, travelling from
2 Lisa Court, Hoppers Crossing to the office set up that
3 I'd left and enhanced.
4HIS HONOUR: I'll receive any document that proves that, but I
5 will not receive as an exhibit documents that are
6 tendered against Ms Cressy junior written by her mother,
7 because obviously that's hearsay.
8MR JOHNSON: the key document Your Honour is written by me,
9 it's the envelope.
10HIS HONOUR: What does that say?
11MR JOHNSON: "Gail $30 pay, $150 housekeeping, $500 childcare
12 cheque, thanks." I believe its um agreed in evidence by
13 all parties - sorry I'm probably submitting now. Um,
14 that - - -
15HIS HONOUR: No, don't worry about submitting.
16MR JOHNSON: - - - Ms Cressy senior was also providing
17 housekeeping services.
18HIS HONOUR: I've told you I will receive any documents to
19 prove that you paid Ms Cressy senior for work done by
20 her?
22HIS HONOUR: So you can produce the - - -
23MR JOHNSON: Thank you, Your Honour. These are the original
24 ones, I don't have copies, but I don't require copies of
25 them Your Honour.
26HIS HONOUR: I won't receive a holus bolus stack. I'm not
27 receiving that. You'll need to extract from them the
28 documents written by your or Ms Cressy senior that only
29 simply prove payment by you to her wages. I will not
30 have them tendered against Ms Cressy junior because
31 thankfully at the end of 2007 the rules of hearsay still

2Cressy
1 apply in these courts. I said, I regret that they may
2 not apply at the end of next year.
3MR JOHNSON: Ms Cressy's handwriting is attached to the
4 envelope.
5MR DEVRIES: Your Honour, there's no dispute taken with the
6 fact that Ms Cressy was employed by him from time to time
7 because that was her evidence. This is not arising out
8 of any cross examination because I never challenged
9 Mr Johnson about - - -
10HIS HONOUR: You didn't challenge him on the fact that he
11 employed Ms Cressy senior at the premises at Dorrington
12 Street?
13MR JOHNSON: Your Honour, this - - -
14MR DEVRIES: It was never raised by me at all at cross
15 examination, so this doesn't arise out of cross
16 examination.
17MR JOHNSON: But, it does Your Honour, p.724 of the transcript,
18 Line 20, "And you claim you gave my client cash at four,
19 five" - - -
20HIS HONOUR: That's right, but Mr Devries client is Ms Cressy
21 junior.
22MR JOHNSON: Yes, Your Honour. I gave this money to Ms Cressy
23 junior by her housekeeper Ms Cressy senior, and this is
24 in my handwriting, $150 housekeeping and it's been
25 acknowledged by Ms Cressy. These would have been in
26 evidence - - -
27HIS HONOUR: Which Ms Cressy?
28MR JOHNSON: Acknowledged by Ms Cressy senior.
29HIS HONOUR: No, I've told you her acknowledgement is hearsay.
30 I will not receive the document.
31MR JOHNSON: Your Honour, when I tendered this document in my

2Cressy
1 evidence in chief, Your Honour rejected that tender
2 solely on the grounds of relevance. My submission
3 is - --
4HIS HONOUR: I don't recall it being tendered in your evidence
5 in chief.
6MR JOHNSON: That's why it was laying at the back of the
7 witness box - - -
8HIS HONOUR: I do not recall it being tendered. It has not
9 been - it cannot be tendered by you as a document signed
10 by a third party to prove a fact in issue against the
11 plaintiff. You have exhibited a very good understanding
12 of the rules of hearsay, as usual, this has happened in
13 the last week. You are endeavouring to stretch my
14 patience to breaking point, so that I give you the
15 latitude so the case gets on. Let me assure for, I
16 think, the fourth time in one day, that tactic has never
17 succeeded with me in any professional environment I've
18 worked it. It won't work now. I apply the rules of
19 evidence in this court because they are fair. The
20 document does not conform with the rules of evidence, it
21 is inadmissible.
22MR JOHNSON: I think it might now be admissible Your Honour,
23 I've taken out Ms Cressy senior's - - -
24HIS HONOUR: What are you now tendering?
25MR JOHNSON: It's 90 per cent my writing. Tendering that in my
26 handwriting I gave Ms Cressy senior instructions plus
27 moneys as an employee.
28HIS HONOUR: I'll have a look at that. Their documents in your
29 handwriting.
31MR DEVRIES: Same objection as last time - - -

2Cressy
1HIS HONOUR: I understand that but if it does not prove any
2 issue required, it simply proves what is common ground.

3
4#EXHIBIT 51 - Bundle of documents written by the
5 plaintiff to Ms Gail Cressy on the basis
6 only they relate payment by the plaintiff
7 to Ms Gail Cressy for work done by Ms
8 Gail Cressy.
9Insofar as one of them may seek to prove payment to the
10 plaintiff the defendant, tried here that the documents of
11 that extent is now received, those not part of the
12 tender.
13MR DEVRIES: May it please Your Honour.
14HIS HONOUR: Those documents are Exhibit 51, thank you. You
15 may have a look at that Mr Devries. What I'm referring

16 to is there's one line on the envelope, which relates to
17 childcare, I do not receive that part of the evidence.
18MR DEVRIES: May we please, Your Honour.
19MR JOHNSON: Your Honour, that would have been a cheque payable
20 to one of the crèche's Your Honour, not payable to
21 Ms Cressy, either Ms Cressy. Continuing p.730 of the
22 transcript, Lines 5 and 7. I've used the word week and
23 weeks and they should have been month and months. I
24 think it's correct in the context. It would be a very
25 rare month that I didn't draw out $30,000, some months it
26 would be 40,000.
27HIS HONOUR: Yes, yes, I understood that.
28MR JOHNSON: Thank you, Your Honour. Page 731 of the
29 transcript, round about Lines 10 to 12. I think that's a
30 typo on Line 11. It should be 200 not 2000.
31MS SOFRONIOU: I object, Your Honour, to the course this is
32 taking.
33HIS HONOUR: Yes.
34MS SOFRONIOU: Without meaning to criticise the witness he is

2Cressy
1 approaching the matter as though it's a commentary on
2 transcript, of which I understand there's 900 pages.
3HIS HONOUR: Yes.
4MS SOFRONIOU: In my submission although fairness has to - - -
5HIS HONOUR: That's an abuse of re-examination.
6MS SOFRONIOU: Indeed, even allowing for someone who isn't in
7 litigation my apprehension is that because of his
8 mistaken approach in fact it's going to take the day,
9 because if matters such as typo are presented to the
10 court for commentary as some of the last has been – I
11 just wonder through Your Honour I might ask whether the
12 re-examination might be confined to matters that are
13 either – that must be arising out of cross-examination
14 and that are ambiguous or incomplete?
15HIS HONOUR: I agree with that. That I have explained to
16 Mr Johnson on three occasions. I'm pleased that you have
17 spared my sore throat to give that explanation. I simply
18 endorse what Ms Sofroniou has stated as being the correct
19 role of re-examination. I also reiterate my caution.
20 You are not here to correct transcript. It is not
21 necessary for you to go through the transcript page by
22 page. I've explained to you in your own interests all
23 you need to do in re-examination is explain. Amplify
24 answers you've given in cross-examination, where you feel
25 that you did not have the opportunity of properly
26 explaining the answer. And I tell you now that judges
27 are only interested in relevant central issues. By
28 diverting on to irrelevancies and peripheral issues
29 you're not advancing your case, and indeed you're doing
30 your credit no good. That's just a fair caution to you.
31MR JOHNSON: Thank you, Your Honour. I just wanted to say that

2Cressy
1 I clarified under cross-examination that the bulk of that
2 tax debt was paid separately to my $9000 - - -
3HIS HONOUR: All right - - -
4MR JOHNSON: - - -type stream. The rump of that was paid when
5 I received a large amount of cash. I think it was
6 $120,000 in July 2006 and I'm not sure that I gave a full
7 – was able to give a full explanation of that. What
8 happened is I changed my accounting treatment for that
9 financial year. So this was cash received in July 2006
10 for work done during the year ending 2005. Now, for the
11 2005 tax year I worked on a cash basis so I received that
12 cash outside of the tax period. For 1 July 2006 since
13 I've worked on a accruals period. So when that cash came
14 in in July 2006 it wasn't taxable in the 2005 tax year,
15 because it wasn't received as cash basis. It wasn't
16 taxable in the 2006 tax year because it wasn't received
17 under accrual basis. In accrual terms it ran into the
18 previous year.
19HIS HONOUR: When was it taxable?
20MR JOHNSON: It simply fell through the cracks as should - - -
21HIS HONOUR: I think you'd better not say anything more.
22MR JOHNSON: It's an established – I'm - - -
23HIS HONOUR: Mr Johnson - - -
24MR JOHNSON: I'm comfortable - - -
25HIS HONOUR: I'd be a bit careful about how you say - - -
26MR JOHNSON: Your Honour, it's a 1977 High Court decision of
27 Chief Justice Barwick.
28HIS HONOUR: It's matter for you. I've given you a warning.
29MR JOHNSON: If I've got it wrong well, then I will have to
30 make amends with the Tax Office but I believe it's right.
31 Only – there's only one opportunity to do that but what

2Cressy
1 that meant was that I had a nice cash inflow. I had been
2 cash constrained for the previous couple of months,
3 because of the settlement for Altona property. Being
4 surprised at the last moment. Having to come up with
5 26,000 in stamp duty. I'm just saying that I wasn't
6 chokered in terms of cash. There was a torrent in July
7 2006 and if I've wrongly accounted for it with tax I
8 accept. If I've wrongly accounted for it – and that will
9 need to be addressed at some stage. I've got no qualms.
10 If I do something - - -
11HIS HONOUR: No, I'm just - - -
12MR JOHNSON: - - -Your Honour.
13HIS HONOUR: - - - you in relation to the same privilege about
14 which I cautioned you yesterday.
15MR JOHNSON: I fully understand, Your Honour. If you do wrong
16 it's - - -
17HIS HONOUR: No, it's your - - -
18MR JOHNSON: - - - accept the consequences.
19HIS HONOUR: - - -you can waive the privilege.
20MR JOHNSON: Thank you, Your Honour. I think this is my
21 submissions. I've explained the VicRoads licence.
22 Address issues. That's my re-examination on Tuesday
23 afternoon's cross-examination. I just need to look
24 through my notes of yesterday's - - -
25MS SOFRONIOU: I object - - -
26MR JOHNSON: Which will proceed much quicker as I have no
27 transcript.
28MS SOFRONIOU: I object to that course, Your Honour. Your
29 Honour, could I request a short adjournment perhaps
30 because I don't want to sit through this in real time.
31 I'm sorry that's not a proper submission really. It may

2Cressy
1 be more of a venting, but may I put it in a more legal
2 way? It is a waste of the court's time.
3HIS HONOUR: I prefer the way you put it.
4MR JOHNSON: I think I can run much more quickly through this,
5 Your Honour.
6HIS HONOUR: If I give you ten minutes, as Ms Sofroniou is most
7 sensibly suggesting, you should be able to have a quick
8 look at your notes. If there's anything of substance
9 that needs clarification.
11HIS HONOUR: Not pedantic nonsense; not peripheral issues; not
12 matters on which you seek to incriminate yourself in
13 another jurisdiction but just matters that are important
14 to the issues in this case. All right? Now, I think
15 we'll all benefit from that. How long will you need?
16MR JOHNSON: A ten minute break is sensible.
17HIS HONOUR: You will have ten minutes.
18MR JOHNSON: Your Honour, I have not looked at any of the
19 transcript - - -
20HIS HONOUR: I'll be back at 10.55. I will expect you to only
21 address relevant issues, and remember that you are
22 teetering on the brink of me closing down your
23 re-examination for irrelevance. So you'll have to
24 exercise far more discipline than you have for the hour
25 or so that we've been going this morning. I will be back
26 in ten minutes. Thank you, Ms Sofroniou; an excellent
27 suggestion.
28 (Short adjournment.)
29MR JOHNSON: Thank you, sir. Your Honour, just a belated
30 apology, I want to say that I have never in my life given
31 evidence in chief before, I've never been cross examined

2Cressy
1 before and I've never been re-examined before, so this is
2 - I'm learning Your Honour and I ensure you I'm doing my
3 best. It would be easier if my first time had been a
4 counsel re-examining me.
5HIS HONOUR: Mr Johnson proceed.
6MR JOHNSON: Thank you, Your Honour. Looking at yesterday's
7 cross examining, Mr Devries raised initially the case
8 Jones v. Dunkel and I'm indebted to Your Honour for
9 explaining the gist of that principal. I've not had an
10 opportunity to look at the case, Your Honour, since.
11 Some negative inferences might be drawn by me failing to
12 call certain witnesses. I'm not sure if this is a
13 re-examination point or a submission point. I wish to
14 explain those decisions not to call large quantities of
15 witnesses and specific witnesses and I also want to point
16 out the scope for certain negative inferences to be drawn
17 in regard of witnesses that Ms Cressy - - -
18MR DEVRIES: Submissions Your Honour.
19MS SOFRONIOU: Objection Your Honour. Also the inference
20 doesn't depend on the rationale of calling or not
21 calling.
22HIS HONOUR: I agree, but if there is an explanation for the
23 reason, for the witness, I think I'll have to hear it to
24 see whether it - - -
25MS SOFRONIOU: Sorry Your Honour, we may be at cross purposes.
26 My objection is the decision of the caller as a
27 discretion, time convenience. In my submission isn't a
28 factor.
29HIS HONOUR: That's irrelevant.
30MS SOFRONIOU: Matters that go to the actual position of the
31 witnesses - - -

2Cressy
1HIS HONOUR: To the availability or position, I agree.
2MS SOFRONIOU: - - - will be. I understood the witness to be
3 addressing the first ground, not the second.
4HIS HONOUR: Yes, I think you're right.
5MR JOHNSON: I'm not sure I understand the difference between
6 the two.
7MS SOFRONIOU: Sorry, if I can make motivations.
8HIS HONOUR: What is irrelevant is issues such as whether you
9 wanted to save the court time or not. But, what may be
10 relevant is an explanation as to the availability of the
11 witness or like issues.
12MS SOFRONIOU: OK, I see.
13MR JOHNSON: Your Honour, forgive me if I step out of
14 boundaries, but - - -
15HIS HONOUR: Perhaps start and I'll tell you if you're out of
16 line.
17MR JOHNSON: I've maintained and I will demonstrate this
18 shortly again. I've maintained all along this was a
19 three to four week trial and that I would have 30 or so
20 witnesses. I issued 28 subpoenas, I think, this was done
21 - had to be done quickly. I think there were about nine
22 witnesses who were served within the 48 hours - - -
23MS SOFRONIOU: I do object Your Honour because this was
24 actually the responses given in - this explanation was
25 given in cross examination.
26HIS HONOUR: I follow that. It would appear that Mr Devries
27 would not want to object to this.
28MS SOFRONIOU: It's not re-examination Your Honour.
29MR JOHNSON: I don't think it's an issue. I'm not following
30 Your Honour.
31MR DEVRIES: I'll be interested to hear what he has to say on

2Cressy
1 this Your Honour.
2HIS HONOUR: In short compass, why haven't you - I think what
3 was put to you was you didn't call your employee - - -
4MR JOHNSON: Kathleen Doogan or - - -
5HIS HONOUR: And your ex-wife Julie - - -
6MR JOHNSON: And my girlfriend of 2007.
7HIS HONOUR: Your girlfriend Stella.
8MR JOHNSON: Stella, yes.
9HIS HONOUR: What is your explanation. Perhaps in fairness to
10 you, your wish in your re-examination to give an
11 explanation by those three people - - -
12MR JOHNSON: If this is the appropriate part in - - -
13HIS HONOUR: Let's get to your explanation for not calling
14 those three, that's first.
15MR JOHNSON: I discussed calling certainly Stella and Julie as
16 witnesses. They would have concerns for their safety
17 Your Honour and I would have concerns for their safety
18 also, if they were called. All the evidence that I
19 required from Julie is already in the body of evidence
20 before Your Honour through Michael Clarebrough's report,
21 which Mr Devries has generously allowed you to take into
22 evidence.
23MR DEVRIES: This is now no more than submission Your Honour.
24HIS HONOUR: I do not - I agree with that.
25MR JOHNSON: As I said, I don't know whether this is submission
26 or otherwise.
27MS SOFRONIOU: No.
28MR JOHNSON: The safety of witnesses.
29HIS HONOUR: Yes, you didn't raise this as an explanation when
30 you were cross examined.
31MR JOHNSON: Again, Your Honour, I've never been cross examined

2Cressy
1 in my life. I don't know the appropriate timing on this.
2HIS HONOUR: You seem to me to be all too ready to say anything
3 and everything under cross examination. You showed
4 absolutely no reticence. Some might say I have worn my
5 voice out in my throat asking you to be relevant. But
6 you say there were concerns for safety in relation to
7 Stella and Ms John - - -
8MR JOHNSON: Yes, ditto for my two sisters, ditto for my
9 22 year old niece.
10HIS HONOUR: You weren't cross examined in relation to
11 them - - -
12MR JOHNSON: As I say Your Honour, I don't know if this
13 is - - -
14HIS HONOUR: You only put that there were three people who you
15 should have called and who you did not. You say your
16 explanation is concerns for the safety of Stella and
17 Ms Johnson.
18MR JOHNSON: Yes, and others, including myself, which is the
19 reason that I've lightly - - -
20HIS HONOUR: Well you've given evidence so that's not an
21 explanation.
22MR JOHNSON: I was also in expectation that these proceedings
23 would be - the hearing would not proceed but they'd be
24 consolidated with 9263 of 2008. I had concerns at a
25 relationship level of doing, as I've suggested to Richard
26 Anderson and Warwick Nelson of Harold Andrews, gentlemen
27 that I work closely with for eight, nine years.
28MS SOFRONIOU: Object Your Honour.
30MS SOFRONIOU: Doesn't arise.
31HIS HONOUR: It is not relevant to the questions as to why you

2Cressy
1 didn't call those three witnesses.
2MR JOHNSON: That goes to protection and relevance,
3 particularly for Julie because all of the evidence that I
4 would require from Julie is before Your Honour through
5 my - - -
6MS SOFRONIOU: Object Your Honour, this is the motivational
7 aspect. Jones v. Dunkel will operate regardless in my
8 submission.
9HIS HONOUR: All right Ms Sofroniou.
10MS SOFRONIOU: If it could be rejected.
11HIS HONOUR: It does not give the explanation of the type
12 required by the rule.
13MR JOHNSON: Your Honour, I lack the knowledge what to do at
14 this point. Do I come back to this in the submissions
15 phase? Do I raise the fact that the plaintiff hasn't
16 been called back (indistinct) - - -
17HIS HONOUR: Well, the principle list, as I explained to you
18 yesterday is this. That where a party fails to call a
19 witness who that party might be expected to call, then
20 the court may draw the inference that the witness who was
21 not called would not have assisted that party, so
22 Mr Devries will be asking me in submission, he'll be
23 submitting to me, that these three witnesses are the
24 witnesses who it should be expected you would have called
25 because they relate to issues relevant to the trial and
26 that he has cross-examined you in a way to show that all
27 three are available, and could have been called, and he
28 will be submitting that the inference I should draw is
29 that none of the three of them could have assisted you in
30 your case.
31 Now the usual type of evidence which can be given In

2Cressy
1 re-examination is an explanation as to how it was that
2 those witnesses could not come to court, not why they
3 didn't, but for example, which I do not understand in any
4 case, and I don't want to be putting thoughts into your
5 mind, suggesting that the witness has passed away, or
6 that the witnesses cannot be reached, whether the witness
7 is mortally ill. If you like
8MR JOHNSON: M'mm. Your Honour - I follow thus far. I had no
9 (indistinct) knowledge - - -
10HIS HONOUR: But you have told me that those three witnesses
11 are effectively alive and well.
12MR JOHNSON: I had no poor knowledge that I'd be expected to
13 call them.
14MS SOFRONIOU: Well, in my submission Your Honour, this is
15 submission, and it can be - - -
16HIS HONOUR: Well it's probably easier - - -
17MR JOHNSON: Yes?
18HIS HONOUR: - - - if I hear it in short compass, and we can
19 deal with that later.
20MS SOFRONIOU: You'll hear it twice Your Honour.
21HIS HONOUR: Yes, well, he - he's a lawyer, he's a very
22 intelligent lawyer. I'm not too sure if it's a matter of
23 choice that he's choosing not to understand, but I
24 won't - - -
25MS SOFRONIOU: If it pleases the court.
26HIS HONOUR: - - - give him the benefit of the doubt. I'll let
27 him give his explanation, but you will keep it short,
28 because it does not really affect out - fit the
29 parameters I've outlined - you go ahead.
30MR JOHNSON: I appreciate - I will (indistinct).
31HIS HONOUR: yes, just explain it shortly.

2Cressy
1MR JOHNSON: Um, I did not realise they were - - -
2HIS HONOUR: You did not think they were relevant. Is that
3 your point?
4MR JOHNSON: I thought they could be relevant and they would be
5 positive to my case.
6HIS HONOUR: Yes.
7MR JOHNSON: I thought that it would put them at risk. They
8 have no knowledge of Ms Cressy's brothel activities,
9 source of risk. Um, they do not have, other than in a
10 couple of instances what would be hearsay, what that I
11 had told them. It was the putting at risk which was the
12 major concern. Um, I didn't realise I'd be disadvantaged
13 in any way, shape or form by not calling them, except by
14 virtue of the fact that I didn't rely on their - their
15 supporting evidence Your Honour.
16 I wasn't - simply not aware of a legal requirement
17 such as Jones v. Dunkel, and indeed my sole knowledge is
18 the way that Your Honour has kindly described the
19 principles to me. I thought I was doing nothing wrong by
20 disadvantaging my case by not calling those witnesses.
21HIS HONOUR: Right, well I think you've given as much
22 explanation as you can.
23MR JOHNSON: There are witnesses that I would have expected
24 Ms Cressy to call.
25MS SOFRONIOU: I object Your Honour. That doesn't arise in the
26 examination.
27HIS HONOUR: It does not arise, and secondly those matters were
28 not put to Ms Cressy.
29MR JOHNSON: (indistinct). Because I wasn't aware of a
30 decision of such as Jones v. Dunkel.
31HIS HONOUR: Right, well move on. We're in re-examination.

2Cressy
1MR JOHNSON: Yes Your Honour. Well, the day after I cross-
2 examined her Your Honour. There's another suggestion by
3 Mr Devries and I can't quite back the pages of trans here
4 because I haven't looked at any transcript for yesterday.
5 Exhibit 15.
6HIS HONOUR: M'mm?
7MR JOHNSON: Of my exhibits, which is the full six pages and
8 Exhibit A, which is the two-page document.
9HIS HONOUR: Yes.
10MR JOHNSON: Um, that I was misleading the reader.
11HIS HONOUR: Yes. The suggestion there is that you were
12 misleading or seeking of misleading Mr Hanlon into
13 believing that you wanted the caveat removed from Gibson
14 Street because you had sold it and the completion of sale
15 was three days hence.
16MR JOHNSON: Yes Your Honour.
17HIS HONOUR: That was what was put to you.
18MR JOHNSON: But that's what's put to me. Um, what I wish to
19 say was that that letter of 29 October was one of the
20 series of letters where I was protesting Ms Cressy's
21 claim which was claimed solely in her caveat that she had
22 an interest by way of contributing to the acquisition,
23 um, improvement and maintenance, whatever that form of
24 words was in the caveat. So I wrote a series of letters
25 saying, look this is just crazy, and here for Gibson
26 Street, here's proof. Here, attached to this two-page
27 covering letter are four pages, which show my original
28 contract, um price, the rebate form which brought it down
29 to just under 400,000.
30 The settlement figures. The settlement - and this
31 is an October 07 letter showing um, it was June 06 data,

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1 quite clearly June 06 data. Um, and I didn't put any
2 finance into it either. I drew cash out of it. It was
3 cash positive, not cash neutral. Here's the bank
4 statement showing it. Now how can she maintain
5 contributing to acquisition, improvement, et cetera - - -
6MR DEVRIES: This is a submission Your Honour.
7MR JOHNSON: Sorry, it probably is a submission, but - - -
8HIS HONOUR: Yes, I agree with you, it is.
9MR JOHNSON: - - - but, I don't know how Mr Hanlon could
10 describe my letter, Exhibit 15, exhibiting old -
11 acquisition data, if I was telling him that I had sold
12 the property, I would have demonstrated to him that
13 contract sale data, which is exactly what I did.
14HIS HONOUR: You're now getting into argument. You say - - -
15MR JOHNSON: Sorry.
16HIS HONOUR: - - - you deny it was your intention to mislead
17 Mr Hanlon in the way that it's been put in cross-
18 examination?
19MR JOHNSON: Absolutely.
21MR JOHNSON: I wished to show that she had not done any of the
22 things she claimed in her caveat. This property was
23 easy. For the other properties it was more difficult,
24 because I had the information for Gibson Street to hand,
25 but the information for the other properties covered in
26 the caveat - let me be precise on this. The information
27 for um Point Cook - the two Point Cook properties and two
28 Inverloch Drive properties were sitting in my archive
29 storage in my garage at the Altona property.
30MR DEVRIES: This does not arise out of cross-examination Your
31 Honour. The letter that I referred him to.

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1HIS HONOUR: The letter was put as an intention to mislead
2 Mr Hanlon into having his client remove the caveat over
3 Gibson Street. Are you're saying, "No, that was not my
4 intention at all"?
5MR JOHNSON: Exactly. I wasn't saying, "I am selling the
6 property", there's nothing in the attachments to suggest
7 selling. There's nothing in the series of correspondence
8 to selling, it's rebutting her claim that she contributed
9 to the acquisitions, improvement, et cetera, as set out
10 in the caveat.
11HIS HONOUR: All right.
12MR JOHNSON: Clear proof, I didn't put money in, I got money
13 out; how could she have any involvement? There's a
14 suggestion that the letter that I wrote to challenge
15 Mortgage Management and Royal Guardian dated 21 January
16 2008, this year. That is an exhibit, Your Honour.
17HIS HONOUR: Yes.
18MR JOHNSON: That I was seeking – the suggestions in cross-
19 examination were two-fold; firstly, I was seeking to have
20 the mortgagee step into possession.
21HIS HONOUR: It's Exhibit 35, I think.
23HIS HONOUR: Yes.
24MR JOHNSON: I think it's quite clear that I was saying to the
25 mortgagee, "Don't step into possession, I have a legal
26 problem but I wish to manage it through."
27HIS HONOUR: Yes.
28MR JOHNSON: And I'm informing my mortgagee about - - -
29MR DEVRIES: That's just a submission; the document speaks for
30 itself. His intentions, as he now expresses them, are
31 not, in my submission, relevant or admissible evidence.

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1 The document speaks for itself. It's a matter, in my
2 respectful submission, for submissions, not for a
3 discourse from the witness.
4HIS HONOUR: When it was put to you, Mr Johnson, it was that
5 the letter was evidence of you seeking to freeze the loan
6 account over the property - - -
7MR JOHNSON: Yes.
8HIS HONOUR: - - - in order to minimise – and I think to
9 capitalise the debt in order to minimise your amount of
10 equity which would be vulnerable to claiming by the
11 plaintiff. Now, that's what was put.
13HIS HONOUR: And that's really (indistinct) put as an admission
14 by you.
15MR JOHNSON: That is not what I was trying to do, Your Honour.
16 I was trying to write to the mortgagee to justify me not
17 making any more payments without triggering mortgagee
18 action.
19HIS HONOUR: Yes. You said that in cross-examination.
21HIS HONOUR: So you say that in effect you – no, I won't - - -
22MR JOHNSON: I referred to the bank statements from the
23 Commonwealth Bank. It was literally correct; I had
24 sufficient moneys in my Commonwealth Bank account at that
25 point to clear that debt, but I had no moneys in the
26 foreseeable future to continue to service, so saying that
27 I had moneys available to meet was correct. Recounting,
28 I guess, hearsay, that I'd been advised, "James, stop
29 paying the mortgages, you need to hold on to the cash
30 you've got." I did take that advice. Not from lawyers.
31 I should have taken their advice and used that cash to

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1 hire lawyers, Your Honour.
2HIS HONOUR: That is irrelevant.
4HIS HONOUR: Let's move on.
5MR JOHNSON: I do have an affidavit – this was another
6 affidavit for 21 August in the Federal Magistrates'
7 Court, I mentioned Mr Devries had a copy of this
8 affidavit, and my - - -
9MR DEVRIES: Your Honour, I object. Your Honour has said, with
10 great respect, I think six or seven times now about
11 getting affidavits in, referring to affidavits.
13MR JOHNSON: I wish to tender the – as I said I would do under
14 cross-examination, when I found it. I didn't want to
15 guess what proceeds were left in my bank account after
16 settlement on the Torquay property. I said I would like
17 to tender, and indeed Mr Devries has already seen my bank
18 statement which shows how those funds were disbursed, I
19 said it was either just above - - -
20HIS HONOUR: Well, if you've got your bank statement there
21 showing amounts - - -
22MR DEVRIES: How can he possibly say what I've seen?
23HIS HONOUR: I'm sorry?
24MR DEVRIES: How can he possibly tell Your Honour - - -
25HIS HONOUR: Don't worry about that, Mr Devries - - -
26MR JOHNSON: I'd love to answer that question - - -
27HIS HONOUR: You will not answer that question. You're both
28 diverting away from the issue. You told me yesterday
29 that there's round about $100,000 that was left when you
30 refinanced Gibson Street to enable you to purchase
31 Torquay. Do you say you have now located some bank

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1 statements showing the amount that was actually available
2 to your bank by you, is that right?
3MR JOHNSON: Yes, yes, and it's an exhibit that has been
4 amongst the parties and was just - - -
5HIS HONOUR: Well, just don't worry about it being an exhibit;
6 you've got your bank statements there, do you?
7MR JOHNSON: Yes, Your Honour. Yes.
8HIS HONOUR: And you wish to tender them?
9MR JOHNSON: I do, I do.
10HIS HONOUR: All right. Well, perhaps Mr Devries – there's
11 obviously a deposit into that bank account that you wish
12 to point to there. What's the date of it?
13MR JOHNSON: It's funny because of the way the bank has done
14 it, but it is a series of dates between 27 and
15 31 December 2007.
16HIS HONOUR: Thanks.
17MR DEVRIES: Your Honour, if I could have a look at those?
18HIS HONOUR: Yes.
19MR DEVRIES: It might speed things up.
20HIS HONOUR: I agree. Could that be provided – Mr Richards,
21 would you hand that to Mr Devries, please?
22MR JOHNSON: Would it assist Mr Devries if I give the whole
23 affidavit so he can see what I'm - - -
24HIS HONOUR: No, all he needs – you will not give him the
25 affidavit; just give him the bank statement, that's all
26 he needs.
27MR JOHNSON: He already has these, Your Honour.
28HIS HONOUR: Don't respond to that, Mr Devries.
29MR DEVRIES: I wasn't going to, Your Honour.
30HIS HONOUR: It was an irrelevant comment, which was done to
31 waste time.

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1MR DEVRIES: I cannot see how this is going to assist anyone,
2 Your Honour, but I'm not – no objections to it being
3 tendered.
5MR DEVRIES: But it can only be hearsay because Mr Johnson will
6 have to explain the transactions because they've all been
7 blacked out.
8HIS HONOUR: The relevant transactions are blanked out?
9MR DEVRIES: Well, all the transactions are blacked out, Your
10 Honour. Only figures are in there but sources of figures
11 are blacked out.
12HIS HONOUR: Can I have a look at the document, please?
13MR DEVRIES: Thank you, Your Honour.
14HIS HONOUR: You say it's the transactions from 27th to
15 31 December?
17HIS HONOUR: So that includes a deposit of $98,217?
18MR JOHNSON: That is the deposit, Your Honour.
19HIS HONOUR: That's the deposit that you - - -
21HIS HONOUR: There's another deposit on 31 December of 20,000.
22 No, there wasn't. Sorry, no - - -
23MR JOHNSON: No, no, I have - - -
24HIS HONOUR: I'm looking at the wrong side.
25MR JOHNSON: Yes.
26HIS HONOUR: So you say the amount that was cashed after the
27 refinancing of Gibson Street and the purchase of
28 Endeavour Drive, Torquay was $98,217?
29MR JOHNSON: Yes, Your Honour, and probably the deposit and
30 fees for those two Breese Street, Brunswick apartments
31 that I haven't proceeded with. They probably came out

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1 before the - - -
2MR DEVRIES: Your Honour, I'm prepared to concede that - - -
3HIS HONOUR: That figure?
4MR DEVRIES: The figure of 98,217.
5HIS HONOUR: $98,217, so I won't need that as an exhibit.
6MR DEVRIES: May it please, Your Honour.
7HIS HONOUR: Thank you very much.
8MR JOHNSON: Your Honour, it also demonstrates that my two
9 mortgages with the Commonwealth Bank were left unpaid.
10 It says later on in the document, from about March or
11 April last year. I'd like to tender it on that basis as
12 well?
13HIS HONOUR: Do you wish to see it again, Mr Devries?
14MR JOHNSON: It's the last few pages of the exhibit. As I
15 explained to Mr Devries - - -
16HIS HONOUR: He now wishes to tender it for a different reason.
17 Do you - - -
18MR JOHNSON: On the 21st of - - -
19MR DEVRIES: I'm not sure how that arises out of
20 cross-examination, Your Honour.
21HIS HONOUR: There have been questions as to default and what
22 the status of the properties are.
23MR DEVRIES: I'll have a look at them, Your Honour. I didn't
24 look at them for that purpose before. There have - - -
25HIS HONOUR: Those go to an issue which I have been asking
26 questions about which I'll need to raise with you before
27 we rise, and that is it's a question of the proof of the
28 pool of assets. It seems to me to be a different issue.
29MR DEVRIES: I have that in mind and I know how I'm going to
30 address Your Honour on that.
31HIS HONOUR: I'm glad you - - -

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1MR DEVRIES: It may be novel. If these are being tendered to
2 show that moneys were drawn out of the account for a
3 purpose, and then those payments were reversed by the
4 bank because there was insufficient funds in the account,
5 I'm happy for it to be tendered on that basis. It was
6 just one of the submissions I was going to make to Your
7 Honour.
8HIS HONOUR: Thanks, Mr Devries.
9MR JOHNSON: Your Honour, it also assists - - -

10
11#EXHIBIT 52 - Bank statements in relation to the
12 defendant Harold James Johnson's
13 Commonwealth Bank Streamline account for
14 the period 24/12/07 to 02/06/08.
15HIS HONOUR: Thanks, Mr Richards.
16MR JOHNSON: Thank you, Your Honour. There is also another
17 relevance to this documents to the pool of asset
18 questions. It's the issue that Mr Devries and I
19 discussed before Federal Magistrate O'Dwyer on 21 August.
20 The suggestion - - -
21HIS HONOUR: I'll hear that submission in final address. Let's
22 get some re-examination done.
23MR JOHNSON: Thank you. You're right. Thank you, Your Honour.
24HIS HONOUR: If you're at an end of your re-examination. You
25 can stand down and start addresses, but if you're not
26 we'll hear more re-examination.
27MR JOHNSON: Thank you, Your Honour. Look, I'm not sure of the
28 relevance but there is – I was questioned –
29 cross-examined on the fact that 2 Dorrington Street was
30 my place of residence as per my tax returns.
31HIS HONOUR: Yes.
32MR JOHNSON: I've 80 per cent answered that. There is another
33 reason. Of all of the freeholds that I own with the

2Cressy
1 exception of the Torquay property – so up until December
2 this year Dorrington Street is the only house that I
3 actually resided in. So it would be my residential
4 premises for the purposes of capital gains tax benefits.
5 Now, I acknowledge it's only for that period in 2003 of a
6 few months and it's only for that period - - -
7MR DEVRIES: I think he should be warned again, Your Honour.
8HIS HONOUR: I agree.
9MR JOHNSON: As I said - - -
10HIS HONOUR: The caution I have given you against self
11 incrimination applies again. You can proceed.
12MR JOHNSON: I'm comfortable that I'm not in need of the
13 warning, Your Honour, in all respects. Thank you.
14HIS HONOUR: You don't have to answer this question but are you
15 saying that although you only lived at Dorrington Street
16 for a couple of months, you represented Dorrington Street
17 to the Income Tax Commissioner as your home residence in
18 order to access advantages of capital gains - - -
19MR JOHNSON: No, no, no, sorry. I didn't understand the
20 caution, Your Honour. Now, what I'm saying is that of
21 all my properties the only one I'm entitled to claim that
22 exemption for will be on the disposal of Dorrington
23 Street, and I will only be able to claim that for those
24 little periods. A few months in 2003 and from about
25 September 2007 up until June 2008, but maybe not even
26 that. Maybe September to November 2000 – maybe only two
27 months. I know it's tricky because you can only have one
28 principal residence at a time, Your Honour, and for the
29 bulk of the period it was a rented apartment in the city.
30 So, I hope Your Honour appreciates that I've - I'm
31 certainly I'm not incriminating or in need of a warning

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1 then.
2HIS HONOUR: Well.
3MR JOHNSON: Thank you Your Honour. I'm indebted for
4 (indistinct)- I really am. I almost didn't clarify that
5 Your Honour. Exhibit 43, which are Ms Cressy's pay
6 slips. I was cross-examined by Mr Devries as to why
7 monies were retained. Um, basically, um, Ms Cressy asked
8 me as an - employ her to pool up the monies, so that she
9 would have some monies to start a business. She was
10 looking at aromatherapies and perfumes. I wasn't as -
11 aware that this would have any relevance Your Honour, and
12 it was opportunity for her if I would give her a large
13 sum of money, which of course I did, to pay out all of
14 those retained - it was 4000 or $5000 or something. It -
15 it's a relevancy point. It - it - it was suggested
16HIS HONOUR: So do you say that is the reason why you retained
17 those funds?
18MR JOHNSON: I'm saying that that was a predominant reason Your
19 Honour, yes.
20HIS HONOUR: Was there any other reason.
21MR JOHNSON: Um, look, cash flow wise that's attractive for me
22 if I don't have to pay a creditor - if I get you spend it
23 credit, its certainly helpful, but it was more for
24 Ms Cressy's benefit than my benefit. A question of
25 relevance is not something that I raised throughout
26 cross-examination of the witness.
28MR JOHNSON: Thank you Your Honour. Your Honour, I was
29 questioned on my child support payment obligations to Ms
30 Cressy. I did want to explain what my current legal
31 obligations are. I affirmed them in cross-examination

2Cressy
1 that I will meet my legal obligations once they're
2 clarified.
3MR DEVRIES: That doesn't arise out of cross-examination. The
4 cross-examination was purely and simply as a result of
5 your most recent tax return you won't be - you understand
6 you won't be assessed for child support. That's the
7 whole issue, not what he does and what he doesn't do. He
8 volunteered some stuff about that, but that didn't arise
9 out of - - -
10HIS HONOUR: All that is relevant, particularly given the
11 judgment delivered yesterday, is any child support that
12 you have paid to Ms Cressy right up to the present date,
13 not what your obligations are, but contributions since
14 the termination of the relationship are now regarded by
15 the courts as being relevant, so you're entitled to give
16 evidence to that.
18HIS HONOUR: But I think you told me that your last paid her
19 any money in August 2007?
20MR JOHNSON: Yes.
21HIS HONOUR: Which is a figure of about $800.
22MR JOHNSON: Yes, and as per that table I think I'm about three
23 years ahead in payments. But Your Honour I just wanted
24 to make the point that the child support agency works off
25 current income figures, including current income
26 estimates. They don't work off historical data purely.
27 They will use the historical data of the last tax return
28 figure, if that's the best information available, but if
29 they have more up to date information available, they
30 will assist you on that.
31HIS HONOUR: Thank you for that advice.

2Cressy
1MR JOHNSON: Thank you Your Honour. So if - if I'm earning
2 $10,000 a month in January, they will assess me for child
3 support for Julie and for Ms Cressy on that, yes.
4HIS HONOUR: (indistinct).
5MR JOHNSON: Thank you Your Honour. There was also questions
6 about um, I was cross-examined about whether um my child
7 support arrangement with Ms Cressy, which I'm asserting
8 through my counterclaim, was regulated in any way by the
9 child support agency.
10HIS HONOUR: Don't see that in (indistinct).
11MR JOHNSON: Did I ever pay any money to the child support
12 agency on behalf of Ms Cressy?
13MR DEVRIES: Your Honour there is a further objection to any
14 reference to the child support agreement, and that is the
15 Browne v. Dunn problem that Mr Johnson has had nothing at
16 all on this was put to my client by him.
17HIS HONOUR: (Indistinct) relevance of this - you in fact
18 (indistinct) hearsay, but all that is relevant is any
19 contributions you have made to the household, which now
20 include contributions right up to the present date. I
21 don't need to know how child support works.
22MR JOHNSON: The relevance Your Honour is to my counterclaim.
23HIS HONOUR: I have no such intention of learning.
24MR JOHNSON: I need to come back to a little point Your Honour,
25 but the relevance is to my counterclaim, which was that I
26 made a voluntary child support agreement with Ms Cressy
27 in 2003. Although now pleaded, we varied that a number
28 of times, um.
29HIS HONOUR: Will you stick to your pleadings?
30MR JOHNSON: Yes I - I hear that I must Your Honour.
31HIS HONOUR: Yes.

2Cressy
1MR JOHNSON: But that was um, induced by the representations
2 and/ or the contained conditions that Ms Cressy do
3 certain things and then refrain from doing certain other
4 things. And her return to prostitution - - -
5HIS HONOUR: You haven't pleaded anything in relation to paying
6 the child support in your counterclaim. The counterclaim
7 relates to you agreeing to let the plaintiff occupy
8 Dorrington Street, then Queen Street, and letting Gail
9 Cressy also occupy properties.
10MR JOHNSON: I - - -
11HIS HONOUR: Paragraph 9's got nothing to do with - - -
12MR JOHNSON: - - - believe it goes on - - -
13HIS HONOUR: - - - the payment of child - - -
14MR JOHNSON:- - - a little bit further than that Your Honour.
15HIS HONOUR: Sorry?
16MR JOHNSON:I believe it goes a little bit further than that. I
17 am very cryptic at this time. I don't want to disclose
18 even the court documents.
19HIS HONOUR: Not interested in crypticism. It's what is
20 pleaded. For the umpteenth time, I only decide cases
21 with a course of action for the pleading.
22MR JOHNSON: Um, and I do wish Your Honour had the pleadings in
23 9623 of 2008 before him.
24HIS HONOUR: Well I don't.
25MR JOHNSON: Before you.
26HIS HONOUR: Now, you're not trying to lean on that law. It is
27 firmly bolted closed.
28MR JOHNSON: I believe Your Honour is of course, correct. This
29 was a holding counterclaim I had described - - -
30HIS HONOUR: It is the counterclaim, proceed on.
31MR JOHNSON: Perhaps, as the plaintiff's counsel did last

2Cressy
1 Thursday, perhaps I need leave to amend this
2 counterclaim. Leave to make an application - - -
3HIS HONOUR: You'll need to articulate clearly what is the
4 claim you seek now, in re-examination on the 7th day of
5 the case - it might be the 8th.
6MR JOHNSON: It is the 8th.
7HIS HONOUR: Eighth day of the case, to claim by way of
8 counterclaim.
9MR JOHNSON: It is substantially articulated in 9623 of
10 2008 - - -
11HIS HONOUR: I'm not interested in that.
12MR JOHNSON: Also articulated in affidavit - - -
13HIS HONOUR: If you're making that claim in another proceeding
14 you make it in that proceeding. I'm hearing this
15 proceeding.
16MR JOHNSON: I guess that's the answer Your Honour, yes.
17HIS HONOUR: It is the answer, now let's - - -
18MR JOHNSON: I'm trying to understand - - -
19HIS HONOUR: Let's move on and lets cease with this repetitive
20 time wasting. It isn't going to work on me. All that it
21 is doing which is discrediting you, which is not doing
22 yourself justice. Because it's giving me the firm
23 impression you're just being deliberately evasive and
24 time wasting. Trial to put off the evil day of judgment,
25 and that may not be doing you justice at all. Just focus
26 on the issues in this case.
27MR JOHNSON: Your Honour, I'm desperately seeking justice and
28 judgment I assure you.
29HIS HONOUR: Seek it by focusing on the issues.
30MR JOHNSON: Thank you. I said that there was one little point
31 on that child support arrangement. After Illyana's birth

2Cressy
1 our child support arrangement was administered by the
2 Child Support Agency and I would get the letters where
3 they would calculate how much I had to pay, both to Julie
4 for David, Ellen and Jessie and to Ms Cressy for Illyana.
5 That is a memory that's come back to me. I don't have
6 any of that old paperwork. We're talking
7 July/August 2000. I believe that was the case for a
8 number of years.
9MR DEVRIES: Doesn't arise out of cross examination.
10HIS HONOUR: It's not relevant.
11MR JOHNSON: Thank you, Your Honour. I do question the
12 relevancy myself. I'm now up to lunchtime yesterday,
13 Your Honour. I can move quickly because my next reports
14 leading from there. The mail redirection Your Honour,
15 Exhibit O.
16HIS HONOUR: Yes.
17MR JOHNSON: I've redirected three things, I guess my names
18 James Johnson, my full name Harold James Johnson. I had
19 standard mail directions for all residences, to get them
20 to the GPO box. They would be for various periods, three
21 months, six months and then I would have to renew them
22 and I would always fill in Harold James Johnson,
23 Mr Harold James Johnson, Mr James Johnson, Mr Sutton
24 Johnson. Now, the reason I did that was a - Mr Sutton
25 Johnson, was because some of those premises - definitely
26 not Queen Street, Altona, mail to Sutton Johnson, would
27 be directed to me. Australia Post have a different
28 charge for mail direction, depending on whether it is
29 residential or business.
30HIS HONOUR: That is irrelevant. The question is why did you
31 redirect mail from Queen Street, Altona if you had not

2Cressy
1 been living there.
2MR JOHNSON: Because the utilities were in my name. There were
3 occasions when electricity bill would come in, Ms Cressy
4 just wouldn't - she'd forget to hand it over to me. I'm
5 not saying there's anything sinister. Certainly I'd be
6 getting some rude phone calls and notices - - -
7HIS HONOUR: All right, well the short answer, rather than the
8 Gettysburg Address, is that you made sure that you got
9 any bills such as utility bills.
11HIS HONOUR: Redirected to you.
13HIS HONOUR: Thank you very much.
14MR JOHNSON: Thank you. Where it says Mr James Sutton - I
15 think it says, in the third line, that's just a silly
16 mistake. Of course, it's never been my name. It was
17 meant to be Sutton - - -
18HIS HONOUR: I don't think you were cross examined on that in
19 relation to use of your name, it was the address.
22MR JOHNSON: There was the suggestion yesterday afternoon that
23 took steps to frustrate court orders, allowing Ms Cressy
24 and the three children to live at the Altona house.
25HIS HONOUR: You've denied that.
26MR JOHNSON: I think I answered that fairly well.
27HIS HONOUR: Yes, you've denied it.
28MR JOHNSON: Thank you, Your Honour. It's a submission point
29 Your Honour. That is all the re-examination I need to do
30 for Mr Devries cross examination. I'm now up to
31 Ms Sofroniou.

2Cressy
1HIS HONOUR: Right.
2MR JOHNSON: Thank you, Your Honour. I think the main issue
3 Ms Sofroniou raised with me in cross examination, was the
4 suggestion that my communications with Mr Hanlon and
5 Mr Anderson, and although not specifically raised up with
6 me, Mr Twigg of Harwood Andrews
7MS SOFRONIOU: I object.
8MR JOHNSON: - - - was not designed by me to vindicate any
9 legal rights that I felt that I had.
10MS SOFRONIOU: Objection, Your Honour, that wasn't the cross-
11 examination.
12HIS HONOUR: The thrust of the cross-examination - - -
13MR JOHNSON: I think it was.
14HIS HONOUR: - - - was that the real purpose was to intimidate
15 Harwood Andrews out of acting for you.
16MS SOFRONIOU: In the portions of the letters that I put to
17 Mr Johnson.
18HIS HONOUR: In the portion, yes
20HIS HONOUR: And you've denied that that is so.
21MR JOHNSON: Yes. I've asserted my good relationship – well,
22 I'm under some constraint as to informing the extent of
23 that relationship. I do have a number of
24 correspondences; I want to fill in that sequence of
25 communications.
26MS SOFRONIOU: I object to that, Your Honour, that doesn't
27 arise.
29MS SOFRONIOU: The portions of the letters that I asked about
30 were the limit of my questions, not the all round context
31 relationship between the - - -

2Cressy
1HIS HONOUR: Well, are you seeking to tender documents - - -
2MR JOHNSON: That show that I wasn't bullying by any stretch of
3 the imagination.
4MS SOFRONIOU: No, that wasn't what I put to the witness. I
5 put to him that those portions of the letters - - -
6HIS HONOUR: Those sections – you were putting to him, though,
7 that parts of his letters were seeking to intimidate your
8 client.
9MS SOFRONIOU: And if there were any other letters with very
10 nice things in them that wouldn't, in my view - - -
11HIS HONOUR: Well, it may not, but he – I can't shut him out
12 from putting the evidence in.
13MS SOFRONIOU: If it please the court.
14HIS HONOUR: And if you wish to cross-examine on it, I'll allow
15 you to.
16MS SOFRONIOU: Thank you, Your Honour.
17MR JOHNSON: Thank you, Your Honour. Perhaps if we go through
18 each of those exhibits one at a time? There was one that
19 was only two pages of a 26 page communication and I
20 raised that and Your Honour said I could complete the
21 other 24 pages in submission.
22HIS HONOUR: Yes, you're right on that.
24HIS HONOUR: Just a minute.
25MR JOHNSON: The first was a letter of - - -
26HIS HONOUR: I think it might be Exhibit H1, was it?
27MR JOHNSON: Yes, if we could have that section of exhibits,
28 that collection?
29HIS HONOUR: That was a letter from Harwood Andrews of
30 15 January 2008.
31MR JOHNSON: Sorry, there was an earlier one at 17 March 2007.

2Cressy
1 Ms Sofroniou's first question to me was about my letter
2 to Mr Anderson of 17 March 2007.
3HIS HONOUR: Well, that might have already been in - - -
4MR JOHNSON: It's an earlier exhibit, Your Honour.
5MR DEVRIES: H2, I think, sir.
6HIS HONOUR: That's a later – 17 March 2008, are you saying?
8HIS HONOUR: Well, that's H2.
9MR JOHNSON: I did have eight written down.
10HIS HONOUR: Yes, well that's H2.
11MR JOHNSON: Yes, this was the 26 page letter that had 24 pages
12 of attachments. Am I allowed to refer to other
13 paragraphs of this letter?
14HIS HONOUR: Well, in final address you can.
15MS SOFRONIOU: Yes.
16MR JOHNSON: Thank you.
17HIS HONOUR: You can certainly do that in address. If you say
18 that what Ms Sofroniou's cross-examined you on is out of
19 context you can point that out to me in submissions, all
20 right?
21MR JOHNSON: That was how I thought this might - - -
22HIS HONOUR: Well done.
23MR JOHNSON: Thank you. I do want to inform the other 24 pages
24 of this document.
25HIS HONOUR: So you say there are another 24 pages?
26MR JOHNSON: Well, it says 26 in total.
27HIS HONOUR: Yes, well do you have the other 20 - - -
28MR JOHNSON: I believe I do, in one of my collections of
29 documents.
30MR DEVRIES: Your Honour, may I propose, to save time, that
31 Mr Johnson just tender those as a bundle? He doesn't

2Cressy
1 need to speak to them from the witness box because they
2 speak for themselves and he can address them - - -
3HIS HONOUR: Well, I agree, but that's what he's seeking to
4 find. You're seeking to find those documents.
5MR JOHNSON: Yes.
6MR DEVRIES: I'm just concerned about how much time - - -
7HIS HONOUR: I'm concerned, too.
8MR JOHNSON: I'm almost at the end of my notes. I had less
9 than three pages scratched out.
10HIS HONOUR: Well, let's not truncate it. Find those documents
11 and tender them. You did foreshadow that you'd be
12 seeking to tender them, you should really have had them
13 ready, but if you find them.
14MR JOHNSON: I do have to look for them, Your Honour.
15HIS HONOUR: If you can't find them now I would have thought
16 that they can be tendered in due course. If you can't
17 find them now – Ms Sofroniou, you won't object to them
18 being tendered?
19MS SOFRONIOU: Not at all, Your Honour.
20HIS HONOUR: There you are. Thank you, Ms Sofroniou.
21MR JOHNSON: Thank you, Your Honour. What's the most
22 convenient way for this?
23HIS HONOUR: Continue your re-examination.
25HIS HONOUR: But simply make a mental note that when you find
26 those 24 pages they can be tendered, all right? You can
27 do that from the Bar table.
28MR JOHNSON: Thank you, Your Honour. It was put to me that
29 there was an inference in some of those paragraphs that I
30 was telling Richard Anderson, threatening to make a
31 professional complaint.

2Cressy
1HIS HONOUR: Yes.
2MR JOHNSON: That was said in Paragraph D. I'd actually
3 informed him earlier that I had put the – I thought it
4 was the appropriate regulatory body, Your Honour, the Law
5 Institute's Professional Standards Division on
6 pre-briefing, and that's in Paragraph 7(c), the preceding
7 paragraph, where I say, "In this letter I advise that I
8 have today formally requested that my letters to the Law
9 Institute's Professional Standards Division be elevated
10 to the status of a formal complaint against Hanlon." And
11 I also say, "Hanlon's further outrageous misconduct in
12 preparation for - - -
13MS SOFRONIOU: I object, Your Honour. These documents speak
14 for themselves and it's a matter for submission.
15HIS HONOUR: Yes.
16MR JOHNSON: Thank you, Your Honour. I wasn't intimidating or
17 making a treat; I was advising - - -
18MR DEVRIES: Submissions, Your Honour.
19MR JOHNSON: Thank you. Thank you. That is submissions. I do
20 have the additional documents here.
21HIS HONOUR: What are you looking for? Those 24 pages?
22MR JOHNSON: The documents referred to in Point 1 and Point 2,
23 Your Honour. Harwood Andrews letter to me of 7 March,
24 Your Honour (indistinct).
25MS SOFRONIOU: I object to the relevance of that, Your Honour.
26HIS HONOUR: Well, he says they gave that to him in some sort
27 of context. I can't see if they're relevant or
28 irrelevant until I've seen them.
29MS SOFRONIOU: It may be a matter of weight then, Your Honour.
30HIS HONOUR: Probably – yes, yes - - -
31MS SOFRONIOU: Certainly.

2Cressy
1MR JOHNSON: I have a facsimile that I sent to Mr Hanlon at
2 Harwood Andrews on 20 December 2007, in the context that
3 was the day after - - -
4HIS HONOUR: Do you wish to tender that?
5MR JOHNSON: I do, Your Honour.
7MR JOHNSON: I wish to read a couple of paragraphs from that,
8 please.
9HIS HONOUR: You can do that in final address unless you can
10 point them out to me.
11MR JOHNSON: It goes to the intimidation question, Your Honour.
12HIS HONOUR: Right, well, that's matter of – you're tendering
13 this on the basis that you say it negates an issue of
14 intimidation. You can tender it on that basis and it can
15 be a final address point - - -
16MR JOHNSON: Thank you, Your Honour - - -
17HIS HONOUR: - - -paragraphs which will be of great of
18 assistance. Thank you very much.

19
20#EXHIBIT 53 - Facsimile letter from the defendant,
21 Harold James Johnson, to Mr David Hanlon,
22 Harwood Andrews Pty Ltd dated 20/12/07.
23MS SOFRONIOU: If it please the court, may I see a copy of that
24 at Your Honour's convenience?
25HIS HONOUR: You may.
26MR JOHNSON: That is my only copy, Your Honour.
27HIS HONOUR: There you are.
28MS SOFRONIOU: Thank you.
29HIS HONOUR: Thanks, Mr Richards. Yes, does that complete your
30 re-examination?
31MR JOHNSON: No, Your Honour. I wish to tender another letter
32 from Harwood Andrews of 25 January 2008.
33HIS HONOUR: Do so.

2Cressy
1MR JOHNSON: It's one page.

3
4#EXHIBIT 54 - Letter from Harwood Andrews to the
5 defendant, Harold James Johnson, dated
6 24/01/08.
7That's the letter advising that the - the withdrawal caveat
8 available. Settlement of the Lisa Court property.
9MS SOFRONIOU: Your Honour, with regard to the previous exhibit
10 of course it falls under Your Honour's previous ruling
11 but in light of the fact that third parties are described
12 in herein strong terms, could I just reiterate the
13 objection that it's only taken for the fact that - - -
14HIS HONOUR: That's right. All these documents are being
15 tendered purely for the fact of the communication, not
16 for the truth of their contents.
18HIS HONOUR: Mr Johnson.
19MR JOHNSON: Thank you, Your Honour. I have a pair of
20 facsimiles. Sorry, it's just one. No, there's two
21 facsimiles dated 11 February 2008; from myself to
22 Mr Hanlon at Harwood Andrews. Again, these are my only
23 copies, Your Honour. I'm sorry but they've come - - -
24HIS HONOUR: We'll make them part of the one exhibit I think.
25
26#EXHIBIT 55 - Two facsimiles by the defendant, Harold
27 James Johnson, to Harwood Andrews dated
28 11/02/08, and to Dr Richard Ingleby dated
29 11/2/08.
30MS SOFRONIOU: May I able to see those at Your Honour's
31 convenience?
32HIS HONOUR: You may. I trust that these relate to a relevant
33 issue in the case?
34MR JOHNSON: They respond to the assertion that I was trying to
35 get them to drop the case in a bullying way - - -

2Cressy
1HIS HONOUR: You say in some way it puts it - - -
2MR JOHNSON: - - -rather than because of any sort of - - -
3HIS HONOUR: - - - there's other communications in context I
4 can't shut you out from putting this material in.
5MR JOHNSON: I have another facsimile of 20 March 2008 from
6 myself to Richard Anderson of Harwood Andrews, and his
7 external solicitor Lisa Newcombe of Lander & Rogers.

8
9#EXHIBIT 56 - Facsimile letter of the defendant, Harold
10 James Johnson, and Mr Richard Anderson of
11 Harwood Andrews and Ms Lisa Newcombe of
12 Lander & Rogers dated 20/03/08.
13Again, Your Honour, that is my only copy, Your Honour.
14HIS HONOUR: That would seem to me logically to bring you to an
15 end of any tender you can make on that topic,
16 because - - -
17MR JOHNSON: I'm really, really close, Your Honour. This is
18 that exhibit p.2. There was actually 24 pages.
19HIS HONOUR: So you've found - - -
20MR JOHNSON: I have found - - -
21MR DEVRIES: - - -about to lose Mr Richards, Your Honour.
22HIS HONOUR: We can't do that.
23MR DEVRIES: OH&S is getting very - - -
24HIS HONOUR: You can hand that up - - -
25MR JOHNSON: Again, my only copy, Your Honour.
26HIS HONOUR: Exhibit 56 will be the - so are these all you say
27 the attachments to this letter are they?
28MR JOHNSON: Yes, yes, I did say that. Are they, Ms Sofroniou?
29HIS HONOUR: Just a moment.
30MR JOHNSON: Sorry.
31MS SOFRONIOU: At an appropriate time, Your Honour, I wish to
32 make a submission about the penultimate exhibit that's
33 just come into my hands, dated 20 March 2008.

2Cressy
1HIS HONOUR: What I'll do if it's convenient to you is I will
2 receive what's just been handed to me in this storm of
3 letters, and then I'll address the issue.

5
6#EXHIBIT 57 - Letter of the defendant, Harold James
7 Johnson, to Richard Anderson of Harwood
8 Andrews dated 17/03/08, together with the
9 attachments thereto.
10MR DEVRIES: - - -exhibit p.2?
11HIS HONOUR: I think we'll keep them as - - -
12MR JOHNSON: Your Honour, I hope that this corresponds with
13 Ms Sofroniou's instructor's copy of the correspondence.
14 My filing – I hope that there's no stray pages been added
15 or missing from what I've just handed up?
16 Ms Sofroniou - - -
17HIS HONOUR: Don't anticipate anything.
19HIS HONOUR: I want to hear from Ms Sofroniou.
20MS SOFRONIOU: Thank you, Your Honour - - -
21MR JOHNSON: Sorry, I'm not finished Your Honour.
22HIS HONOUR: I'm interrupting you - - -
23MR JOHNSON: I'm sorry, Your Honour, continue on, thank you.
24HIS HONOUR: Yes, I'm actually the judge in charge of the
25 court.
26MR JOHNSON: Forgive me Your Honour.
27HIS HONOUR: Which is good of you.
28MS SOFRONIOU: Thank you, Your Honour. With respect to the
29 exhibit, which is the letter dated 20 March 2008.
30HIS HONOUR: Yes.
31MS SOFRONIOU: May I press an objection that it is irrelevant.
32 It's correspondence to the Legal Practitioners Liability
33 Committee making all sorts of allegations. On it's face

2Cressy
1 it doesn't actually fulfil the purpose that Mr Johnson
2 has been saying he's been tendering these for. At the
3 very least he's at risk, if it is accepted into evidence,
4 that I will be relying on it against him. But it's
5 irrelevant in my submission, Your Honour.
6HIS HONOUR: I'm wondering about why - I would have thought the
7 only objection you would have is that it would be unwise
8 for the defendant to tender it.
9MS SOFRONIOU: In fairness - - -
10HIS HONOUR: In his own interests.
11MS SOFRONIOU: I'm making the concession that says it strictly
12 isn't relevant or he doesn't need to tender it and I'd
13 invite him to withdraw it. If he persists in it I will
14 certainly find that it assists me.
15HIS HONOUR: You make any submission in relation to it?
16MR DEVRIES: I'd like to see it before anything happens on that
17 Your Honour.
19MR DEVRIES: I'd like to have a look at it first before it goes
20 any further.
21HIS HONOUR: I've only skim read it.
22MR DEVRIES: Yes, thank you.
23HIS HONOUR: Yes, well I fail to see the relevance of it, but
24 you - - -
25MR JOHNSON: May I respond Your Honour?
26HIS HONOUR: You shall, briefly.
27MR JOHNSON: The relevance is that it shows that my belief was
28 that I did have that had been violated. I was seeking to
29 vindicate them
30HIS HONOUR: That's what you - - -
31MR JOHNSON: - - - in a way that didn't involve - a way that

2Cressy
1 involved negotiation not recourse to extensive protracted
2 litigation.
3MS SOFRONIOU: That doesn't arise from re-examination and this
4 isn't relevant to that and it's a word to the wise that
5 in my submission it will be used against him if he
6 persists.
7HIS HONOUR: I agree with that. It seems to me that based on
8 what he's put there, the vague tenuous thread of
9 relevance. If it was a jury trial, I would not permit it
10 because I think that thread of relevance is too weak to
11 make it legally relevant, but I will receive it because
12 I'm pretty robast.
14HIS HONOUR: I certainly will not receive it for the truth of
15 it's content.
16MS SOFRONIOU: I can't be accused of having been unfair to the
17 witness.
18HIS HONOUR: No and you have put - certainly Ms Sofroniou I
19 have found the proper thing, in accordance with the
20 conditions of the Bar, you have put the defendant on
21 warning that the document will be the basis of submission
22 by you.
24MR DEVRIES: Your Honour, has said a number of times, that
25 documents are only admitted for certain purposes.
26HIS HONOUR: Yes.
27MR DEVRIES: I would submit Your Honour, that that doesn't
28 prevent me referring to other sections of that
29 correspondence that might put, in my submission, light of
30 some of the other evidence.
31HIS HONOUR: Well if their inconsistent statements.

2Cressy
1MR DEVRIES: Yes.
2HIS HONOUR: You can rely on that.
3MR DEVRIES: Yes.
4HIS HONOUR: The fact that it's not a tender for the truth of
5 its contents does not prevent you pointing to
6 inconsistencies.
7MR DEVRIES: Yes, thank you, Your Honour.
8HIS HONOUR: It's credit issue and you may certainly file about
9 that. He's tendered an inconsistent statement he saved
10 you the problem.
11MR DEVRIES: We certainly do, Your Honour.
12MR JOHNSON: I'm lost on the discussion that's going on at the
13 moment Your Honour.
14HIS HONOUR: In other words, Mr Devries has flagged that there
15 are parts of that letter that he will say are
16 inconsistent with some of your evidence and he simply
17 raised that issue. Let us proceed as I expect this
18 re-examination which has been excessively lengthy to
19 conclude very shortly.
20MR JOHNSON: Just a couple more documents Your Honour. This is
21 a letter of mine on the same footing, 27 March 2008, to
22 James Turnbull of Berry Family Lawyers. Again, my only
23 copy Your Honour.
24HIS HONOUR: How on earth is this relevant?
25MR JOHNSON: It's relevant to the - it's a further
26 demonstration of what I said in answer just recently
27 Your Honour. My desire was to have my serious legal
28 rights vindicated by way of an amicable negotiation, not
29 by way of protracted litigation.
30HIS HONOUR: By feigning another source.
31MR JOHNSON: I do know a little bit about the law and

2Cressy
1 defamation and the truth is complete defence and I have
2 taken - - -
3MS SOFRONIOU: I object to that comment Your Honour, very
4 firmly.
5HIS HONOUR: I can't see the relevance of it. You don't have
6 to object to it. I will receive the document, it is
7 irrelevant, but I think it simplifies the course. If
8 Mr Johnson - at the moment your admitted to practice?
9MR JOHNSON: Most certainly Your Honour. Seventh of May 91.
10HIS HONOUR: I take it before you got admitted you got educated
11 in certain ethical duties of practitioners?
12MR JOHNSON: I have a very good lawyers ethics textbook on it
13 at the Bar table.
14HIS HONOUR: You do, and you read it?
15MR JOHNSON: Yes, most definitely.
16HIS HONOUR: Yes.
17MR JOHNSON: I just believe the rules should - - -
18HIS HONOUR: You know the duties of solicitors when they make
19 communications to another practitioner about the
20 character or conduct of the third solicitor?
21MR JOHNSON I have correspondence from the legal services
22 Commission on that point.
23HIS HONOUR: You know there's some ethical duties attaching to
24 that?
25MR JOHNSON I have - - -
26HIS HONOUR: Do you know that?
27MR JOHNSON Yes, and I have correspondence from the Legal
28 Services Commission on that.
29HIS HONOUR: Thank you. Just checking, to make sure that you
30 understand. You also know that lawyers have particular
31 privilege when they file court documents, and as a result

2Cressy
1 of that privilege that there are very strong ethical
2 duties attaching to barristers and solicitors who draft
3 claims and counterclaims in respect of the allegations
4 attaching to them? I assume you're aware of that?
5MR JOHNSON And I wish they applied equally to all.
6HIS HONOUR: But do they apply - don't you understand them?
7MR JOHNSON Yes Your Honour. And - - -
8HIS HONOUR: Thank you. That's all I need to know.
9MR JOHNSON Thank you.

10
11#EXHIBIT 58 - Letter of defendant to Mr James Turnbull,
12 Berry Family Lawyers, 27/03/08.
13MS SOFRONIOU: Could I have that (indistinct) back please?
14HIS HONOUR: Yes.
15MR JOHNSON Your Honour, this, plus one other document
16 completes my tendering. This is a letter I sent this
17 morning to the mortgagee of Dorrington Street - sorry the
18 mortgagee of Altona property, and their solicitors
19 Russell Kennedy, appraising them of the status of these
20 proceedings, and also requesting that information as to
21 what happened on the auction.
22HIS HONOUR: Well let's just - you don't have to describe.
23 Perhaps if you'd just tender it.
24MR JOHNSON I have copies for my learned friends as well Your
25 Honour.
26HIS HONOUR: What are you tendering this for?
27MR JOHNSON This is relevant um, to getting evidence in court
28 as to my damages, because the property was sold by
29 mortgagee auction.
30HIS HONOUR: Well you'll have to prove those facts.
31MR JOHNSON I know.
32HIS HONOUR: You don't do it by tendering (indistinct).

2Cressy
1MR JOHNSON That's - we discussed that Your Honour. It also
2 puts these proceedings in the context of the 9623
3 proceedings.
4HIS HONOUR: I'm not interested in any other proceedings.
5MR JOHNSON Paragraph - Paragraph 10 of this letter, for the
6 benefit of my learned friend, is the - - -
7HIS HONOUR: Well I haven't received it yet.
8MR JOHNSON - - - authorities - - -
9HIS HONOUR: I'll have a look at it Mr Richards thanks.
10MR JOHNSON These are the authorities I'll be relying on
11 heavily in my submissions Your Honour, and indeed in the
12 other proceedings.
13HIS HONOUR: This is a letter you wrote - losing track of the
14 days, but on today?
15MR JOHNSON Yes Your Honour.
16HIS HONOUR: Its 11 December. I can't see how that's relevant.
17 We've done (indistinct) allegations, you've referred to
18 authorities, it's got nothing - it is probative of
19 nothing. I reject the tender.
20MR DEVRIES: Your Honour, Exhibit 58, if Mr Johnson really does
21 wish to rely upon it, and he's made a big issue about
22 completeness, this is not complete. It's only one page
23 of a letter which self evidently (indistinct).
24MR JOHNSON Sorry. What is - what is Exhibit 58?
25HIS HONOUR: Exhibit 58 is a letter by you to Berry Lawyers.
26 Can I have the letter please? Yes, it's incomplete. The
27 letter by you to Berry Lawyers, 27 March 2008, cuts off
28 at Paragraph 7. Obviously there is more than that
29 because it cuts off mid sentence.
30MR JOHNSON It may be that the printing didn't appear on the
31 page Your Honour. I suspect that's what happened.

2Cressy
1HIS HONOUR: Well you'll need to supply a complete copy of that
2 letter.
3MR JOHNSON That may the complete letter as went with that
4 cutting off. These letters were prepared under
5 considerable stress and compressed (indistinct).
6HIS HONOUR: You say that's the complete letter?
7MR JOHNSON I'd believe that's - - -
8HIS HONOUR: Unsigned, finishing mid sentence, that you sent to
9 another legal practitioner?
10MR JOHNSON May I have a look - may I have a look please? You
11 are quite right Your Honour. That is - that is
12 incomplete. I will retract that incomplete copy. That
13 was Exhibit 58. Sorry, I haven't noted an Exhibit 57.
14HIS HONOUR: Is your letter to Richard Anderson, 17 March 2008.
15 That is the letter to which Ms Sofroniou took objection,
16 which I have expressed the view legally irrelevant, but
17 its got such it's a continuous link somehow to this case.
18 Given that you are unrepresented, I will permit it to be
19 tendered.
20MR JOHNSON Your Honour, my - my numbering is out of whack. I
21 might discuss with your tip staff in the lunch time.
22HIS HONOUR: Well you won't discuss anything with them. That
23 was 57, this one's 58. We will now complete the
24 re-examination.
25MR JOHNSON I did just want to tender the facsimile that I sent
26 and circulated at the beginning of the trial Your Honour.
27 I wanted that to go in so that I may make submissions on
28 it.
29HIS HONOUR: I just make this point. The last document you
30 tendered is entirely irrelevant. You could easily have
31 seen that. You are abusing your right of re-examination.

2Cressy
1 That's one strike. Two more and you're out. I mean
2 that. This case has to complete. You are abusing the
3 pure process deliberately.
4MR JOHNSON I have closed re-examination Your Honour.
5HIS HONOUR: Have you? You may stand down.
6 (Witness excused.)
8HIS HONOUR: Could you provide Exhibit 58 such as it is at the
9 moment to Mr Richards please, and you're going to them
10 later get a copy of it. You've taken possession of a
11 document that's been tendered and received as your
12 exhibit.
13MR JOHNSON: I may have to produce under side of the file copy
14 (indistinct).
15MR JOHNSON:In my view what you will do is simply give back to
16 Mr Richards the document that was tendered.
17MR JOHNSON: Yes (indistinct) Your Honour.
18HIS HONOUR: Well you can't find it at the moment?
19MR JOHNSON: I can't.
20HIS HONOUR: All right, well, when you find it, you'll return
21 it.
23HIS HONOUR: We've lost enough time. All right, now, if you
24 could turn to the Bar table, because there is a matter I
25 wish to raise, or just to see where this case is going
26 before we get into any submissions. All right, now, the
27 first matter, Mr Johnson, is that that completes your
28 evidence, the only other witness, as I understand it,
29 that you desire to call is Mr Cockram?
30MR JOHNSON: I guess I have a question now, it's only just
31 occurred to me, but the Jones v. Dunkel witnesses,

2Cressy
1 whether I should call them.
2HIS HONOUR: That's a matter for you.
3MR JOHNSON: Yes, Your Honour. I don't want to make a decision
4 this instant, my instinct is to protect them by not
5 calling them, Your Honour.
6HIS HONOUR: Mr Johnson, setting aside that issue, what do you
7 propose to do about Mr Cockram?
8MR JOHNSON: I am organising - I hope to have a fresh subpoena
9 issued and have that served on him. I do need some
10 guidance, Your Honour, as to what date and time - - -
11HIS HONOUR: Yes, I know, I'll need to discuss that with
12 counsel.
13MR JOHNSON: Yes.
14HIS HONOUR: All right, well, the position you're in now is you
15 wish to call Mr Cockram, you wish to give some
16 consideration as to whether you call two or three other
17 witnesses about whom you've been cross-examined by
18 Mr Devries, is that the position?
20HIS HONOUR: Thank you. You may be seated.
22HIS HONOUR: Mr Devries, what is your position next week?
23 You're in difficulty, are you?
24MR DEVRIES: I'm in great difficulty, Your Honour, I've
25 committed myself Monday, Tuesday, Wednesday, and
26 Mr Hanlon and I, in another matter, have an appointment
27 to finalise a matter at ten o'clock on Thursday, and on
28 Friday, I'm out of the jurisdiction for the rest of the
29 year.
30HIS HONOUR: Is your other commitment Monday, Tuesday, and
31 Wednesday a court commitment? I don't want to - I think

2Cressy
1 you've mentioned you've got to go interstate or
2 something.
3MR DEVRIES: Sorry?
4HIS HONOUR: You've got to go interstate?
5MR DEVRIES: No, not inter - I'm going - I'm leaving Melbourne
6 very early on Friday morning.
7HIS HONOUR: Yes. Well, was your commitment Monday, Tuesday,
8 Wednesday, one that - - -
9MR DEVRIES: It's a series of commitments that I've been
10 committed to for quite some time.
11HIS HONOUR: Yes. Well, this case is not going to complete
12 this year on that basis. The question is when do I put
13 it over to - - -
14MR DEVRIES: Your Honour, if - sorry, Your Honour.
15HIS HONOUR: First week of February, I have two other cases.
16 If I was to put it over, it would have to go to the week
17 beginning Monday 9 February. Now, are you available on
18 that date?
19MR DEVRIES: I am, Your Honour.
20HIS HONOUR: Right. Ms Sofroniou, depending on the outcome of
21 your - - -
22MS SOFRONIOU: Application?
23HIS HONOUR: Application, would you be available on 9 February?
24MS SOFRONIOU: Yes, Your Honour, I know that I've been called
25 to Sydney on the 13th of that week, but the ninth is not
26 a problem - - -
27HIS HONOUR: What's the 13th, the - - -
28MS SOFRONIOU: Friday.
29MR DEVRIES: Very appropriate you have to go to Sydney.
30HIS HONOUR: Yes.
31MS SOFRONIOU: I'm not a - - -

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1HIS HONOUR: Very - - -
2MS SOFRONIOU: - - - phobiac, Your Honour.
3HIS HONOUR: You're very brave. Yes, well, is that just a one
4 day commitment in Sydney?
5MS SOFRONIOU: Yes, Your Honour.
6HIS HONOUR: Yes. I'm not seeing anyone about the duration of
7 this case if I adjourn it.
8MR DEVRIES: Your Honour, I was going to say to Your Honour
9 that subject to my learned friend's application, which I
10 would imagine can proceed irrespective of these other
11 witnesses, they're not going to be giving evidence as I
12 can - - -
13HIS HONOUR: Don't worry about her application, what was
14 your - - -
15MR DEVRIES: What I was going to say, Your Honour, is that
16 assuming that she proceeds with her application, I'm
17 happy to start my address, not withstanding these - the
18 (indistinct) about these weaknesses, on the basis that if
19 Mr Johnson is going to produce these witnesses, they have
20 to be produced tomorrow morning.
21HIS HONOUR: Well, the other two, I would think, the ones that
22 he has foreshadowed, he would have to be in a position to
23 call or at least give a very good explanation why they're
24 not available tomorrow. What would assist me, if this
25 matter has to go off, is at least some submissions as to
26 the outline of the - and I think it would help
27 Mr Johnson, the outline of your constructive trust and
28 Part 9 claim, particularly the legal framework of it and
29 the basis of it, that it would seem to me, at least given
30 the fact that we've got Mr Cockram, who it would seem
31 unrealistic to be able to subpoena, we can't have him

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1 here next week, tomorrow's too early, and we would have
2 to put the matter over to February. Now, we can work out
3 in a moment how we use profitably the next two days, or
4 one and a half days, but it seems to me to be inevitable
5 we're not going to complete it. All right, well, you're
6 available til Thursday 9 February, that would seem, if it
7 has to go over, it'll go over to then.
8 Ms Sofroniou - - -
9MR DEVRIES: Sorry, Your Honour, but just before we go to
10 Ms Sofroniou, I just wonder, in respect of Mr Cockram, if
11 Your Honour was available on Friday - sorry, Thursday the
12 18th, surely we could bring Mr Cockram back so at least
13 all the evidence is completed - - -
14HIS HONOUR: My understanding is you're not available next
15 week.
16MR DEVRIES: No, the - Monday, Tuesday, Wednesday I'm not, the
17 Thursday I am, subject to half hour - - -
18HIS HONOUR: Well, I'll see, I'll speak to you - I want to find
19 out from Ms Sofroniou.
20MR DEVRIES: Sorry, I apologise, Your Honour.
21HIS HONOUR: Ms Sofroniou.
22MS SOFRONIOU: The application, Your Honour, that I - - -
23HIS HONOUR: I was going to raise that with you. There are two
24 matters that concern me about making the application
25 which I thought about. Firstly of course it affects –
26 the defendant hasn't closed his case. It's really a
27 question of – I could not rule on it until he's closed
28 his case.
29MS SOFRONIOU: That's so, Your Honour.
30HIS HONOUR: I'm not sure you're going to benefit much then
31 because we've got to wait for him to close his case. All

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1 you might do is telegraph matters which you may not wish
2 to.
3MS SOFRONIOU: First, Your Honour, as I understand it the
4 further witnesses that could be called don't affect the
5 caveat issue and the theft and burglary issue that are in
6 the cross-claim, and I'd ask for Mr Johnson's assurance
7 that that's the case because neither Mr Cockram - - -
8HIS HONOUR: That might be right. If you make a no case
9 submission you may put ideas into Mr Johnson's head. He
10 may then wish to try to patch up his case and I - - -
11MS SOFRONIOU: Certainly but I - - -
12HIS HONOUR: It's a question for you as to the wisdom of it
13 because all you would be doing now is pre-emptively
14 making a no case submission on the basis that the
15 evidence against your client did not change.
16MS SOFRONIOU: I know. I accept that, Your Honour.
17HIS HONOUR: Someone the other day said something about
18 discretion of valour. If I can't rule on it until the
19 conclusion of the defendant's case - - -
20MS SOFRONIOU: No, I see the problem, Your Honour. I've
21 exposed myself without having the benefit of it and - - -
22HIS HONOUR: All pain, no gain. Now, the other matter which is
23 one of more substance is the question of the
24 counterclaim, and something I need to also raise with
25 Mr Johnson. Moving to the counterclaim, Paragraphs 7 to
26 14 relate to the plaintiff. Paragraphs 15 to 21 are
27 pleaded against the plaintiff. You then get to
28 Paragraphs 22 to 26. Now, there seems to be – that's the
29 caveat; the Harwood Andrews caveat claim. Now, I
30 understand you may be in a position to make a no case
31 submission, in relation to the claim for the damages

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1 arising out of the lodgement. Although he has not
2 pleaded it Mr Johnson has tendered the later caveat of
3 6 March. Now, that I will probably hear you say is
4 nothing to do with the claim for loss and damage, but
5 Mr Andrews has also – sorry, Mr Johnson in Paragraph 25 I
6 think is sufficiently – together with his Prayer for
7 Relief B foreshadowed also a claim for removal of the
8 caveat. Now, it was the previous caveat but I must say,
9 subject to hearing from you, I would not prevent
10 Mr Johnson amending this proceeding to seek removal of
11 the current caveat.
12MS SOFRONIOU: Your Honour, that's understood.
13HIS HONOUR: Your client's caveat effectively is as good as the
14 claim for an equitable interest of the plaintiff. If
15 that equitable interest fails your client's caveat would
16 have to fail.
17MS SOFRONIOU: There is a submission that I want to make about
18 that that's probably worth foreshadowing, Your Honour,
19 and that is how this counterclaim is read in terms of
20 what causes of action it's raising.
21HIS HONOUR: Yes.
22MS SOFRONIOU: As I understand it Paragraphs 25, 24, 26 all
23 hang on 22 and 23 which is to say, "I've come to court to
24 meet the case of fraud and malice. Not to have a royal
25 commission into procedural practice from that point of
26 view", as I understand it.
27HIS HONOUR: It's one of the reasons I asked certain questions
28 of Mr Johnson, because it – as to whether I'm entitled to
29 assume inferences arising out of some matters pleaded.
30 But he has pleaded, if you take out the allegations of
31 fraud and malice, the lodging of the caveat. The

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1 withdrawal of it. Twenty five - - -
2MS SOFRONIOU: As it were he can't have it both ways, Your
3 Honour, because if fraud and malice are taken out then
4 he's talking about the withdrawal of the first caveat
5 which has been - - -
6HIS HONOUR: I know that.
7MR JOHNSON: May I speak, Your Honour?
8HIS HONOUR: No, you may not. You'll respond in a moment.
9MS SOFRONIOU: The withdrawal of which has been admitted to and
10 indeed it's Mr Johnson who's put the evidence - - -
11HIS HONOUR: I understand that but he still at Paragraph 25
12 pleads a question to whether there is a caveat over that
13 property or not. Now, that is addressed to the existing
14 caveats.
15MS SOFRONIOU: Actually not really, Your Honour, because if one
16 reads 25 in full what he says is the withdrawal of the
17 caveat gave the details of Gibson Street instead of Queen
18 Street. Now, there's no doubt about it. A first caveat
19 was withdrawn.
20HIS HONOUR: The first was withdrawn, yes.
21MS SOFRONIOU: So it does in fact fall away. There's no – what
22 doesn't remain is some residual enquiry about the status
23 of the current one as I understand it. This - - -
24HIS HONOUR: Of the initial - - -
25MS SOFRONIOU: Indeed there is some logic to this if I may say
26 that, that Mr Johnson has – appears to have pleaded this
27 dubious or ambiguous withdrawal as being part of his
28 claim that this has all been some fraudulent and
29 malicious exercise.
30HIS HONOUR: You say this. I appreciate there's no claim at
31 the moment on foot for removal of the 6 March caveat.

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1MS SOFRONIOU: No, and as it is to some extent events have
2 overtaken us in that Justice Hansen's orders provide that
3 when the sale of the properties occurs, the caveat is
4 going to be lifted and the proceeds put in place. So to
5 some extent it is much - - -
6HIS HONOUR: So your clients are subject to an order for the
7 lifting of that caveat?
8MS SOFRONIOU: In any event, yes.
9HIS HONOUR: I follow.
10MS SOFRONIOU: So the relief that's sought - - -
11HIS HONOUR: I overlooked that. That's Justice Hansen?
12MS SOFRONIOU: Hansen of June.
13MR JOHNSON: At Bastille Day - - -
14MS SOFRONIOU: Just 16 July, Your Honour, 2008.
15HIS HONOUR: No, I follow, yes.
16MS SOFRONIOU: By consent?
17HIS HONOUR: No, then the counterclaim is more advised than I
18 appreciated.
20HIS HONOUR: All right, well that seems to resolve that issue.
21 It still leaves open the questions of the timing - - -
22MR JOHNSON: Your Honour.
24HIS HONOUR: The timing would be a case submission.
25MS SOFRONIOU: No, no, I'm indebted to the court, for fair
26 warning.
27HIS HONOUR: I regret you're left in this position. Thanks,
28 Ms Sofroniou.
29MS SOFRONIOU: Please the court.
30MR JOHNSON: Thank you, Your Honour. I just wanted to
31 telegraph to my learned friend that my concern in the

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1 pleadings - see the caveat is just a notice advertising
2 the document called the equitable charge. Now the notice
3 was taken off the public record at the time there were
4 offers. But there was no discharge of the equitable
5 charge. My question - my concern there was, is the claim
6 still being pressed or have you done any
7 investigation - - -
8HIS HONOUR: That's not what your pleadings is. Your pleading
9 says what your pleading says, is a pleading in relation
10 to the lodgement of the caveat.
11MR JOHNSON: By the contemporaneous correspondence was asking
12 that question, have you dropped the charge as well.
13HIS HONOUR: That's not the matter of the correspondence.
14MR JOHNSON: Well may I have leave to amend as appropriate
15 Your Honour, on that?#
16MS SOFRONIOU: Well - - -
17MR JOHNSON: It shouldn't be a surprise, my contemporaneous
18 correspondence - you've dropped the notice, but have you
19 dropped the charge? Have you done investigation to see
20 the claims worthless.
21HIS HONOUR: I don't understand the point.
22MR JOHNSON: The caveat is the notice of the Titles Office
23 advertising there's an equitable charge in place.
24HIS HONOUR: Yes.
25MR JOHNSON: You can have an equitable charge without lodging
26 a caveat.
27HIS HONOUR: I understand that.
28MR JOHNSON: Yes, does the withdrawal of the caveat withdraw
29 the equitable charge? If it did, what was the basis of
30 the replacement caveat? The replacement caveat could
31 only have any validity because it would charge sustained

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1 there.
2HIS HONOUR: Yes, so what.
3MR JOHNSON: That was my - that was my concern and it's the
4 same point, that the equitable charge creating
5 - allegedly creating an interest in my property for
6 Harwood Andrews is the instrument that I'm unhappy with
7 and that's the one that piggyback's off Ms Cressy's claim
8 in her caveat. The removal of the notice of the
9 equitable charge at the Titles Office didn't extinguish
10 the claim that Harwood Andrews were making in my
11 property. They just took it from a claim that was not
12 - no longer disclosed to the Titles Office.
13HIS HONOUR: The issue is still whether they have a claim in
14 the property on hold.
16HIS HONOUR: It would depend ultimately on resolution of the
17 question whether the plaintiff has an equitable interest
18 in that property.
20HIS HONOUR: If she did, then obviously that charge is valid.
22HIS HONOUR: Not pleaded and I don't see any relevance in your
23 pleading of claim against Harwood Andrews.
24MS SOFRONIOU: If I may add Your Honour, more to the point, on
25 the eighth day of evidence that has never been the case
26 run.
27HIS HONOUR: No.
28MS SOFRONIOU: It wouldn't be a matter of amending the
29 pleadings to run the case - - -
30HIS HONOUR: Caveat. My only concern was as to whether you
31 needed the (indistinct) and amended the pickup the new

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1 caveat, but you've explained to me that that's not
2 necessarily. That in fact has already been dealt with.
3MS SOFRONIOU: Indeed, Your Honour.
4HIS HONOUR: I'm getting myself badly confused here, but I
5 thought Queen Street sold.
6MS SOFRONIOU: I'm instructed it hasn't been settled to the
7 point where caveat and relevant parties have exchanged
8 the relevant document to action, to use that terrible
9 American verb, the orders. I think settlement's due,
10 7 January is the date that we have been informed of
11 Your Honour.
12HIS HONOUR: Yes.
13MS SOFRONIOU: In that vicinity.
14MR JOHNSON: Your Honour, I don't know how these people know
15 more about my property than I do. All I've got is the
16 hearsay from the Melbourne circulated newspaper.
17HIS HONOUR: That may be right, but I was getting confused as
18 to the status of the property. I see no basis upon which
19 you can so amend. The matter that I had foreshadowed,
20 was a matter in your interests I was concerned about the
21 later caveat (indistinct), but it's been explained to me
22 there's already in existence an order of this court
23 effective which will effect the removal of it.
24MS SOFRONIOU: Yes, Your Honour.
25MR JOHNSON: Your Honour, but I don't understand - we're
26 talking shoelaces and bootstraps, how that later order
27 can retrospectively validate the harm caused to me by the
28 first Harwoods caveat.
29HIS HONOUR: I'll tell you what I'll do Mr Johnson - - -
30MR JOHNSON: And then a s.91 certificate for violating caveat.
31HIS HONOUR: Mr Johnson, we're really raising an issue in the

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1 air. What you will need to do is to draft whatever
2 proposed amendment you have and then we can at least
3 offer some idea what you're talking about. It's a little
4 bit clearer than having a proposed amended - that is the
5 way it's normally done.
7HIS HONOUR: If you wish to do that you'll need to do it post
8 haste.
10MR DEVRIES: Your Honour, I rise to remind Your Honour and
11 Mr Johnson, I think that two nights hearing ago, he was
12 advised that if he wished to make an application to amend
13 his counterclaim he would have to do that by going away
14 and drawing something up. This is only delaying that
15 process, two days, two hearing days beyond when he - - -
16HIS HONOUR: Thank you Mr Devries. I think we've really had
17 enough speeches today on the process - - -
18MR DEVRIES: Sorry, Your Honour.
19HIS HONOUR: - - - but I can't shut him out. You know the
20 principals as well as I do. It really raises the
21 difficulty as to where we go from here.
22MR JOHNSON: Excuse me, Your Honour.
23HIS HONOUR: Mr Johnston needs to attempt to formulate an
24 amendment. He wishes to call further witnesses. When
25 will you be in a position to call the additional
26 witnesses?
27MR JOHNSON: Thank Your Honour, I will be speaking to the
28 ladies at the first possibility. Can I foreshadow also
29 some of the witnesses that were in court on Tuesday
30 morning I might wish to call now as part of the mix of
31 these extra witnesses, I seem to have some legal burden

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1 to call. Maybe one or two of the other witnesses that I
2 subpoenaed, I might want to re-subpoena them also, Your
3 Honour.
4HIS HONOUR: Which witnesses are those?
5MR JOHNSON: I'm thinking particularly the - - -
6HIS HONOUR: This is not a game, Mr Johnson. This is - - -
7MR JOHNSON: This is definitely not a game, Your Honour. This
8 is deadly serious, Your Honour. I'm concerned by the
9 absence of the plaintiff as to the way - - -
10HIS HONOUR: Don't you be worried about – or concerned about
11 the absence of the plaintiff. I'm concerned about the
12 way you are conducting yourself. Now, name the witnesses
13 who you wish to call.
14MR JOHNSON: I may call Francine Irene Miller.
15HIS HONOUR: What's her position?
16MR JOHNSON: She has been the owner of Gotham City Brothel, I
17 think, since the mid 90's I think, Your Honour, a
18 substantial - - -
19HIS HONOUR: And what's the relevance of her evidence?
20MR JOHNSON: She can give evidence which is contrary to
21 Miss Cressy as to when and when she did not work at that
22 premises.
23HIS HONOUR: What's the relevance of that?
24MR JOHNSON: The relevance of that is that it will – it goes to
25 credit of Miss Cressy.
26HIS HONOUR: Yes, then it's not admissible.
27MR JOHNSON: It also goes to my counterclaim as the child
28 support agreement we put in place in 2003 - - -
29HIS HONOUR: That's not part of your counterclaim.
30MR JOHNSON: I will be seeking to make it a part of my
31 counterclaim.

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1HIS HONOUR: Well that's too late for that. I will permit –
2 you will - - -
3MR JOHNSON: She will also give evidence corroborating - - -
4HIS HONOUR: You say that you are making that claim in another
5 proceeding.
6MR JOHNSON: I'm worried about – is it res judicata? Estoppel.
7 Estoppel, I think it is.
8HIS HONOUR: It's a matter for you. The fact of the matter is
9 you have – you say you've articulated another claim.
10MR JOHNSON: She will also corroborate what evidence Mr Peter
11 Cockram gives.
12HIS HONOUR: About what?
13MR JOHNSON: His relationship with Miss Cressy.
14HIS HONOUR: Well, I can't stop you calling evidence as to that
15 because you say that goes to the issue of domestic
16 relationship.
17MR JOHNSON: One hundred and ten per cent, Your Honour.
18HIS HONOUR: I wouldn't put it that highly. Who is your other
19 witness?
20MR JOHNSON: They are the two – the other is Marianne Love, who
21 was in the - - -
22HIS HONOUR: What's the relevance of Marianne Love?
23MR JOHNSON: It is to do with the minority, I guess, in the
24 procopets, if I'm pronouncing it correctly. The decision
25 handed down yesterday.
26HIS HONOUR: What's the relevance of the - - -
27MR JOHNSON: The claim for damages, compensation for emotional
28 harm less than but not a psychiatric diagnosis. I
29 believe the evidence that this - - -
30HIS HONOUR: That arose – as I understand a procopets – out of
31 allegations of physical and other abuse that were

2Cressy
1 properly pleaded.
2MR JOHNSON: Yes, but - - -
3HIS HONOUR: They haven't been pleaded in this proceeding; her
4 evidence would be irrelevant.
5MR JOHNSON: Maybe that's an issue for the 9623 proceedings,
6 Your Honour.
7HIS HONOUR: That's a matter for you.
8MR JOHNSON: Well, then – I need – this is all happening thick
9 and fast, I need to think, Your Honour. I most certainly
10 want to - - -
11HIS HONOUR: All right. Now, when the witnesses who you wish
12 to call – when will you be in a position to call them?
13MR JOHNSON: At next interval, depending on how quickly I need
14 to do the re-subpoena for Peter Cockram.
15HIS HONOUR: What do you mean "the next interval"?
16MR JOHNSON: Well, the lunch, I would have thought.
17HIS HONOUR: So you think you'll have them here this afternoon?
18MR JOHNSON: Look, I will call them. I want to think about it
19 because there's the safety aspects.
20HIS HONOUR: I'm not interested in what you want to think
21 about. Give me a straight answer for a change.
22MR JOHNSON: Do I want to run the gauntlet - - -
23HIS HONOUR: You'll have them here this afternoon then?
24MR JOHNSON: I don't know, Your Honour.
25HIS HONOUR: Well, I'll hear from you - - -
26MR JOHNSON: I will have a decision whether I will call them or
27 not.
28HIS HONOUR: You have a decision you'll have them here,
29 otherwise if we aren't in a position to hear any evidence
30 I would be assisted, Mr Devries, I think, by you
31 beginning to outline your final address, at least to give

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1 me some idea as to the structure of it.
2MR DEVRIES: Your Honour, I was going to ask for a very short
3 moment with my instructor about the Jones v. Dunkel
4 situation because it may foreshorten all this nonsense
5 about calling further witnesses.
6HIS HONOUR: For you – yes, I follow the point. The other wish
7 I have with you, Mr Devries, is there's been paucity of
8 evidence about the pool of assets here. I must say I'm
9 left in a very difficult position. Of course, if there's
10 no domestic relationship, then that's one thing; but if
11 there is a domestic relationship subject to issues of
12 contribution, the next question is what assets are there
13 and what claims are made by your client? There's no
14 valuation of the assets. There's very little evidence as
15 to what equity would exist in any event. In fact,
16 there's a question mark made by Mr Johnson in his
17 evidence as to whether the Dorrington Street properties
18 have been sold or not. Although he did say today in re-
19 examination that he still owns them. Now, it's a matter
20 for you, but I'll put you on fair warning, that the
21 plaintiff's evidence in this case lacks – is very badly
22 lacking.
23MR DEVRIES: I was prepared to meet that, Your Honour.
24HIS HONOUR: Well, that's a matter for you.
25MR DEVRIES: Yes.
26HIS HONOUR: I've given you fair warning that that's a matter
27 of concern for me. We deal in evidence, not in
28 speculation.
29MR DEVRIES: Your Honour has, with respect – and I don't say
30 this in disrespect – has I think flagged that difficulty
31 earlier in this proceeding.

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1HIS HONOUR: Yes. And I've been broaching this issue with your
2 client and with Mr Johnson to try at least to get some
3 idea of what the assets are. But I must say that I'm
4 looking through the glass very darkly at the moment.
5MR DEVRIES: Yes, Your Honour. Could I just have a moment with
6 my - - -
7HIS HONOUR: Yes, you may.
8MS SOFRONIOU: In the meantime, Your Honour, while my friend
9 does that - - -
10HIS HONOUR: Yes.
11MS SOFRONIOU: I'm afraid I mis-described the orders that dealt
12 with the second caveat, if I could call it that.
13HIS HONOUR: Yes.
14MS SOFRONIOU: Could I hand them up to Your Honour? They're
15 the orders of Justice Cavanough of 20 June 2008.
16HIS HONOUR: Yes.
17MS SOFRONIOU: And Your Honour will see a reference to the
18 lifting of the caveat in Paragraph 4 of those orders.
19 I'm sorry for mis-describing them. I'm not sure also if
20 it's just pre-empting the situations to refer to any
21 proposed amendment. Your Honour may prefer me not to do
22 that now.
23HIS HONOUR: Well you - - -
24MS SOFRONIOU: But, what I was going to say, with Your Honour
25 leave, is that given that that's not an untrammelled
26 liberty to a party but has the, according to JR Holdings
27 v. Queensland where costs are a proper remedy, to put my
28 learned friend, well Mr Johnson rather, on notice that
29 any such amendment would in any way that could result a
30 waste or an abortion of this trial - - -
31HIS HONOUR: Result in an order for costs - --

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1MS SOFRONIOU: Well, more than that. In light of the evidence
2 we've heard, the lodgement of monies representing costs,
3 because otherwise it wouldn't be a true order.
4HIS HONOUR: Yes.
5MS SOFRONIOU: I'm sorry - I with draw that. It wouldn't be a
6 substantive order.
7HIS HONOUR: Yes.
8MS SOFRONIOU: Thank you Your Honour.
9HIS HONOUR: No thanks for that Ms Sofroniou. It is a
10 conditional withdrawal though, isn't it? In other words
11 if that sale never proceeds, the caveat remains and the
12 caveat's as good as the plaintiff's interest?
13MS SOFRONIOU: I think the - I'll get instructions about it
14 Your Honour, because I think that there may even have
15 been steps being taken as we speak to action these, so
16 that could be a hypothetical question.
17HIS HONOUR: Thank you. I'll just step outside for a moment
18 while Mr - - -
19MR DEVRIES: I'll only need about three minutes Your Honour.
20MR JOHNSON: Excuse me Your Honour? Just in terms of
21 re-subpoenaing Mr Peter Cockram, I do need some guidance
22 as to what date and time.
23HIS HONOUR: That's what we're - we haven't worked that out
24 yet.
26HIS HONOUR: I'll be back in a moment. I just want to hear
27 from Mr Devries to try and get some order out of this
28 chaos.
29 (Short adjournment.)
30MR DEVRIES: If it was to save time Your Honour, I can inform
31 Your Honour that if Mr Johnson doesn't call his wife, his

2Cressy
1 employee, Stella and Ms Miller, I will not raise the
2 Jones v. Dunkel argument in my final address. I will not
3 rely in that in respect of those four persons.
4HIS HONOUR: Thanks Mr Devries.
5MR DEVRIES: do you understand that Mr Johnson? In other
6 words - - -
7MR JOHNSON: I think we're all very welcome and - - -
8HIS HONOUR: No inference will be drawn if no - - -
9MR JOHNSON: - - - I'm grateful to accept that.
10HIS HONOUR: - - - no inference will be drawn against you for
11 you not calling those witnesses.
12MR JOHNSON: No. I'm - I'm immensely grateful for the sake of
13 those ladies, the first three mentioned, not to have to
14 call them Your Honour.
15HIS HONOUR: Right. Well you will not be calling them then?
16MR JOHNSON: I most certainly won't Your Honour.
19HIS HONOUR: Now that leaves us simply with Mr Cockram. Is
20 that right?
22HIS HONOUR: What about Ms Miller?
23MR JOHNSON: No, no. She was a part of the - - -
24MR DEVRIES: I included her in my - - -
25HIS HONOUR: Is she part of the Jones v. Dunkel withdrawal?
27HIS HONOUR: You will not be calling her?
28MR JOHNSON: No Your Honour.
29HIS HONOUR: So you on intend to call Mr Cockram?
31HIS HONOUR: Excellent.

2Cressy
1MR JOHNSON: Ms Love - I did think in the few minutes and her
2 evidence is probably relevant to the second proceedings
3 Your Honour.
4HIS HONOUR: Relevant (indistinct)?
5MR JOHNSON: I'm sorry. I'm just looking at the balance of the
6 pleadings and I think Ms Love's evidence probably belongs
7 in the second proceeding.
8HIS HONOUR: Excellent.
10HIS HONOUR: You're not in a position of course to close your
11 case at this stage, because you want to call Mr Cockram
12 and you foreshadow an application to amend your pleading
13 against the 2nd defendant - the 2nd and 3rd defendants to
14 the counterclaim?
15MR JOHNSON: I wish to think on the valuable warning that
16 Ms Sofroniou has given me - the education about
17 seeking - - -
18HIS HONOUR: I think you should think very hard about
19 that - - -
21HIS HONOUR: - - - because I can only allow any amendment
22 provided it can be remedied - any prejudice flowing from
23 it can be appropriate remedied. In other words I can't
24 allow an amendment which would unfairly prejudice the
25 other side to the case. Now usually that's can be
26 attended to by costs order. I would think given what
27 you've already stated to this court about your financial
28 circumstances, what Ms Sofroniou has put is correct, so
29 that if any adjournment or any extra delay was occasioned
30 by any amendment, my tentative view at this stage is I
31 would require you to lodge with the court as a condition

2Cressy
1 of amending your pleading an amount of costs to ensure
2 that there was no untoward prejudice to the 2nd and 3rd
3 defendants to the counterclaim.
4 I would also only accept such an amendment if,
5 first, it was properly drawn, secondly, there was an
6 explanation as to why its only been proffered at this
7 late stage and, thirdly, that it didn't occasion any
8 forensic disadvantage to the 2nd and 3rd defendant in the
9 sense that they could deal with any new issues raised by
10 them by recalling witnesses or calling further witnesses.
11 Now those three conditions you'd need to meet, so I think
12 you need to think very hard and carefully about whether
13 you wish to amend.
14MR JOHNSON: I wish - I wish I'd been educated on this process
15 seven days ago Your Honour, but I do hear strongly what
16 you're saying and I think it's not difficult to guess
17 what my decision will be, but I do ask for a little bit
18 of think time Your Honour.
19HIS HONOUR: How long do you need?
20MR JOHNSON: I could - after the lunch adjournment I could give
21 you an answer on that one Your Honour. I do have to
22 weigh up the balance because of the other proceedings. I
23 don't want to pre-litigate.
24HIS HONOUR: All right. You do some weighing over lunch.
26HIS HONOUR: I think the best thing to do is we will adjourn.
27MR JOHNSON: Mr Cockram Your Honour?
28HIS HONOUR: Sorry?
29MR JOHNSON: Mr Cockram. I may be able to - - -
30HIS HONOUR: (Indistinct) follow that?
31MR JOHNSON: - - - issue the subpoenas during the lunch break.

2Cressy
1HIS HONOUR: When do you think you'll be able to get him?
2MR JOHNSON: I don't know Your Honour. I may be able to get
3 the documents into the process server's hands - - -
4HIS HONOUR: Normally they need five days' notice. Now I can
5 abridge that.
6MR JOHNSON: Yes Your Honour. I will be requesting that again.
7HIS HONOUR: Would you seek to call him tomorrow?
8MR JOHNSON: We ran out of time with that with Mr Wittekind,
9 otherwise I would say yes. I do believe that
10 Mr Cockram's a family man with two youngish children, so
11 he's likely to be more easily served of an evening or -
12 and certainly with hours that Mr Tilly attempted service
13 on Wittekind, which - - -
14HIS HONOUR: All right. When would you be looking to bring him
15 to court?
16MR JOHNSON: Um - - -
17HIS HONOUR: 9.30 tomorrow.
18MR JOHNSON: The answer is ASAP Your Honour.
20MR JOHNSON: And if we could achieve that with the paperwork. I
21 don't know that I could get them to the process server by
22 2 o'clock today. That's the only thing. I don't have
23 Mr Thompson.
24HIS HONOUR: What's Mr Cockram's occupation?
25MR JOHNSON: I believe he works for the Salvation Army Your
26 Honour. Some sort of consulting role.
27HIS HONOUR: Does he have such an occupation that he could - is
28 his occupation such that it wouldn't prevent him coming
29 to court at short notice?
30MR JOHNSON: I've never met the man. I know very, very little
31 about him.

2Cressy
1HIS HONOUR: I've just asked you based on your - - -
2MR JOHNSON: Based on that little - - -
3HIS HONOUR: You don't know.
4MR JOHNSON: - - - knowledge. I don't believe there's
5 any - - -
6HIS HONOUR: Where does he live?
7MR JOHNSON: I believe he's at Park orchards.
8HIS HONOUR: Yes, well he has with or without conduct money
9 being served in this proceeding - - -
10MR JOHNSON: Yes.
11HIS HONOUR: - - - so that it would seem to be in extraordinary
12 circumstance of this case be appropriate to abridge times
13 for Mr Cockram to come to court. So I'll therefore
14 direct that the defendant be entitled to issue a subpoena
15 addressed to Mr Cockram, by which Mr Cockram is required
16 to attend this court at 9.30 tomorrow morning.
17MR DEVRIES: Your Honour, can existing subpoenas being
18 reissued. Because if the subpoenas served by my friend
19 be reissued - - -
20HIS HONOUR: That's a matter for you, I don't know.
21MR DEVRIES: That might speed things up.
22HIS HONOUR: You may be able to assist in that regard. You
23 might draw to the attention of prothonotary that there is
24 a re-subpoena, but a new appearance date would need to be
25 noted.
26MR DEVRIES: Yes.
27HIS HONOUR: Do you have a new form with you?
28MR JOHNSON: I do, I can organise - I did that yesterday in my
29 lunch hour. I can do it again in this lunch hour. I may
30 not be able to give it to the process server until after
31 court closes this afternoon.

2Cressy
1HIS HONOUR: I follow that but you'll need to get it issued by
2 the - - -
3MR JOHNSON: Prothonotary.
4HIS HONOUR: Prothonotary and do a bit of thinking. How long
5 do you need.
6MR JOHNSON: The lunch break will be - - -
7HIS HONOUR: That will be sufficient?
8MR JOHNSON: I sincerely hope so.
9HIS HONOUR: All right, well we'll come back at 2.15, by that
10 time you ought to have made a decision whether you wish
11 to amend it. If you do, I will not grant an amendment
12 unless those three matters are - which I've verified, are
13 complied with. Which will mean that the amendment will
14 have to foreshadow a viable cause of action. One known
15 to a law.
17HIS HONOUR: Given this late stage, it will have to be far more
18 clear than the allegations raised so far. Also, you'll
19 have to take great care that you comply with your ethical
20 duties to the court in drawing. The other, if we're not
21 troubled by an application to amend, it would seem to me
22 then that we can at least proceed to hear you,
23 Mr Devries, if that's convenient. Or do you need some
24 time?
25MR DEVRIES: I could start Your Honour.
26HIS HONOUR: I don't want to - - -
27MR DEVRIES: I'll need most of lunchtime to organise myself up
28 to do that.
29HIS HONOUR: Just so we can use the afternoon profitably, I'm
30 not drawn to the proposition of bringing Cockram back
31 here. If anything of it comes tomorrow, we'll have to

2Cressy
1 put it over to next year. I'm trying to complete the
2 case as best we can to fit in with your time constraints.
3MR JOHNSON: Forgive me Your Honour, or dispense with
4 Mr Cockram's evidence is the third possibility.
5HIS HONOUR: Are you content to do that?
6MR JOHNSON: If we can't get him in the morning, I may have to
7 Your Honour.
8HIS HONOUR: All right. When will you be in a position to
9 commence your final address then? If you close your case
10 or even Ms Sofroniou - - -
11MS SOFRONIOU: Yes, thank you.
12HIS HONOUR: We wouldn't know that till tomorrow morning. I
13 don't want to - - -
14MS SOFRONIOU: We'll fit in wherever Your Honour wishes to.
15HIS HONOUR: I don't want to lose this afternoon. What might
16 even be assisted, have you read Procopets?
17MR DEVRIES: I have Your Honour.
18HIS HONOUR: Even if you can start outlining to me the
19 principals on Part 9, which you will be seeking to rely.
20 Or if you wish to turn your mind to something we can
21 usefully do in the afternoon.
22MR DEVRIES: I can certainly do that Your Honour. Your Honour,
23 I was going to raise one matter with Your Honour that if
24 the matter, for whatever reason, has to go over, in part
25 to February, that would certainly overcome one of the
26 difficulties Your Honour has. Because all the properties
27 - with maybe one exception, will have been sold by then.
28 The proceeds will be in the court fund.
29HIS HONOUR: When you see an advantage in that - I see the
30 better thing is Mr Johnson's got some things to do over
31 lunch, we can broach that after lunch. I'd prefer to

2Cressy
1 give him the time that he obviously needs to attend to
2 two important matters. It's best we vacate the court now
3 and give Mr Johnson the opportunity to do those matters.
4MR JOHNSON: We have till 2.15.
5HIS HONOUR: We'll make it 2.15.
6LUNCHEON ADJOURNMENT

2Cressy

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1MR DEVRIES: Your Honour, my client is not present in court.

2 I've been instructed by my instructors that they've heard

3 from my client. She's bedridden with a gastric upset.

4 She has asked me to apologise to Your Honour. There's no

5 discourtesy to this court by her non-attendance.

6HIS HONOUR: I understand. I understand that. Thanks

7 Mr Devries. I should say on the matter I raised at the

8 close of play yesterday, I have spoken to the listing

9 master and, I think in fairness to your instructor, the

10 matter was set down on a two day estimate in the

11 expectation, whether right or wrong or founded or

12 unfounded, that Mr Johnson would not attend, so that it

13 was not represented as being a two day estimate on a

14 contested case. I would really query the wisdom of the

15 proffering and indeed if I may re-sequence those so the

16 acceptance of an estimate on that basis in the case of

18 But I do not state that in criticism, but rather I

19 think in the future everyone's got to take more care

20 about these estimates.

21MR DEVRIES: There was another expectation Your Honour, and I

22 don't intend this - - -

23HIS HONOUR: Yes, we don't need - sorry. We don't need to

24 visit it, but if there's any criticism in that, or there

25 was a criticism I think of your instructor, I withdraw

27MR DEVRIES: Yes, I'm indebted to Your Honour.

28HIS HONOUR: Yes.

29MR DEVRIES: Insofar as my involvement, I came into that part

30 of it afterwards, but there had been an expectation that

31 even if Mr Johnson subsequently had turned up, we may

1.LL:KF 11/12/08 FTR:1 134 DISCUSSION

2 the matter. We had expected the other - - -

3HIS HONOUR: Yes, well that's a false expectation.

4 (indistinct) don't actually assist. I'm not going to get

5 into that argument.

6MR DEVRIES: I'm sorry Your Honour. I won't take it further

8HIS HONOUR: I would not. The next matter is Mr Wittekind, is

10MR JOHNSON: Your Honour, Mr - no he's not here Your Honour.

11 He's not been served. There have been four attempts of

12 service, three last evening and one this morning. The

13 present server, Mr Martin Tilly, is on his way to court.

14 He's in traffic, to give evidence of the attempted

16HIS HONOUR: Right. Well I think the best thing we should do

17 is let's press on and complete your re-examination and

18 work out where this case is going.

19MR JOHNSON: Thank you Your Honour. I - I just want to

20 foreshadow that both the propositions that my learned

21 friend put as to the two day estimate, that I did not

22 turn up. That's totally inconsistent with the

23 correspondence (indistinct) of that input. Both of those

24 are issues that form the basis of my submissions for

25 costs Your Honour.

26HIS HONOUR: Yes, I understand that. Now let's continue with

27 your re-examination. Thank you Your Honour.

28<HAROLD JAMES JOHNSON, recalled:

30 It is simply to clarify any evidence on which you cross-

31 examined. Particularly if you felt that you did not have

1.LL:KF 11/12/08 FTR:1 135 DISCUSSION

3MR JOHNSON: Thank you Your Honour.

4HIS HONOUR: Stick rigidly to that (indistinct)?

5MR JOHNSON: I shall. May I say that I did drive down to

6 Geelong regarding the request for a copy of my current

7 driver's licence. I have a photocopy of both my current

8 driver's licence, and I can hand up the original, and my