Brothel Gate Day 15 PM

1MR DEVRIES: Your Honour, before Mr Johnson resumes, I've gone
2 through the transcript of my client's evidence a number
3 of times today whilst he was on his feet and over lunch.
4HIS HONOUR: Yes.
5MR DEVRIES: I cannot find a single reference to Mr Cockram and
6 her evidence. If there is a reference, I'd be greatly
7 appreciative of finding out. Otherwise, the question he
8 says he asked her is impossible.
9HIS HONOUR: Yes I follow that.
10MR DEVRIES: One other thing sir, while I'm on my feet, the way
11 this matter is going there's a fair chance that it'll be
12 going on the 19th of this month. If that's the case,
13 both Mr Johnson and I will have to beg a break from
14 Your Honour, because we'll be appearing in another part
15 of this court.
16HIS HONOUR: Right.
17MR DEVRIES: On an application in the counterclaim in the other
18 matter.
19HIS HONOUR: I follow.
20MR JOHNSON: No, Your Honour, I'll be available for your court
21 on that day. I don't have a - - -
22HIS HONOUR: The 19th is - - -
23MR DEVRIES: Next Thursday.
24HIS HONOUR: Next Thursday. This case will be finished before
25 then, Mr Devries which is probably a very brave
26 prediction, but I hear what you say.
27MR DEVRIES: Yes.
28HIS HONOUR: But we really – yes this case has to come
29 to a close.
30MR DEVRIES: I believe it'll be in the Practice Court.
31HIS HONOUR: Thank you.
1.LL:DC 13/02/09 FTR:23AA 152 DISCUSSION

2Cressy
1MR DEVRIES: I believe it'll be a strike-out application.
2HIS HONOUR: Yes, I understand. Thanks for that information,
3 Mr Devries.
4MR DEVRIES: Thanks Your Honour.
5HIS HONOUR: Mr Johnson.
6MR JOHNSON: Thank you, Your Honour. I'm indebted to
7 Mr Devries for doing that searching of the transcript. I
8 couldn't find a reference to my putting that question
9 to - - -
10HIS HONOUR: You couldn't either.
11MR JOHNSON: I couldn't either.
12HIS HONOUR: I think where you may be being confused, you put
13 the question to Mr Cockram.
14MR JOHNSON: Yes.
15HIS HONOUR: Whether he knew Ms Cressy, and I think he said,
16 his response was, "I didn't know anyone in the court", or
17 words to the effect.
18MR JOHNSON: I don't really remember, if that's all right,
19 Your Honour. In fairness to myself, I am an embryonic
20 advocate, that would have been my second or third day,
21 probably my – probably third day I think. I think it was
22 the Thursday morning. I'd been in considerable pain. I
23 had to go to the hospital on the Tuesday morning. I
24 hadn't slept a wink the Monday night, the Tuesday night,
25 or the Wednesday night with chronic back pain. I
26 certainly wasn't at my best.
27 I didn't mean to violate the rule and I don't know
28 if I did that, but I'm putting it to Ms Cressy, I believe
29 the evidence of myself and Ms Locke still stands, even
30 though I didn't put a direct question to Ms Cressy on it.
31 Maybe it's of benefit for Ms Cressy in hindsight that I

2Cressy
1 didn't put a question to her, because she might have
2 denied any knowledge of Mr Cockram, as Mr Cockram - - -
3HIS HONOUR: You can't speculate Mr Johnson. Let's rather move
4 on to what evidence was given.
5MR JOHNSON: Yes.
6HIS HONOUR: And - - -
7MR JOHNSON: But I'm certainly not disputing what Mr Devries
8 says, that there was no reference to me questioning
9 Ms Cressy in cross-examination, Your Honour.
10HIS HONOUR: Thank you. Let's move on.
11MR JOHNSON: Thank you, Your Honour. Just still on the
12 credibility issues, and it goes into contributions, did
13 she have some cash that she could have brought evidence
14 to show that she contributed to my assets in any way?
15 There's a lot of confusion in the evidence from
16 Ms Cressy, and not assisted at all by Ms Cressy senior,
17 her mother as to when she started working as a
18 prostitute.
19 I've got some page reference here. I think at p.245
20 of the transcript, Line 12. Your Honour says to me that,
21 "You haven't noted her evidence that she started working
22 part-time", whatever that means, "As a prostitute in
23 2002". Then, "Full-time", whatever that means, "As a
24 prostitute in 2004".
25HIS HONOUR: 2000 and, what was the second date?
26MR JOHNSON: 2004, I think Your Honour said.
27HIS HONOUR: I think – well summarising earlier evidence given,
28 I think that Ms Cressy as one stage stated that she, yes
29 at p.120, "I commenced work", and this is my
30 paraphrasing, "I commenced work as a sex worker, part-
31 time 2002 in that capacity earning about $40,000 per

2Cressy
1 annum in 2006. After I finished my studies I worked
2 full-time as a sex worker, and earned between 70 and
3 $100,000 per annum". That was my paraphrasing for my own
4 purposes of her evidence.
5MR JOHNSON: I'm indebted to Your Honour for refreshing me on
6 that point.
7MR DEVRIES: P.121, Your Honour.
8HIS HONOUR: 121 is it? Yes, that's 120, 121.
9MR DEVRIES: With respect, Your Honour, you're pretty well
10 accurate.
11HIS HONOUR: Thanks,
12MR DEVRIES: You switched a couple of phrases around, but apart
13 from (indistinct).
14MR JOHNSON: Thank you, Mr Devries. At p.247 of the
15 transcript, Line 22, I've got a reference now - - -
16HIS HONOUR: 247?
17MR JOHNSON: Yes, 247, Line 22. My notes are a little scrappy,
18 Your Honour. There's a reference to Ms Cressy and
19 prostitution while living at 45 Nicholson Street. Now
20 was that my evidence, or was that Ms Cressy's evidence?
21HIS HONOUR: Just a minute. I'll – let's have a look.
22MR DEVRIES: It was cross-examination, Your Honour.
23MR JOHNSON: Cross-examination.
24HIS HONOUR: It was cross-examination.
25MR JOHNSON: She said she started working as a prostitute in –
26 while living at Nicholson Street, as indeed she was
27 living in 2002. Now as my evidence, I'm sure I got this
28 out in my evidence in chief, the stalking behaviours by
29 Mr Cockram towards me commenced in December 2001, and
30 given that the evidence from - - -
31HIS HONOUR: I don't think there's any evidence of that - - -

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1MR JOHNSON: - - -Senior Detective Jennifer Locke to the effect
2 that, to the effect that Ms Cressy had met Mr Cockram
3 before Mr Cockram started stalking her, and that
4 Ms Cressy had me Mr Cockram working in a brothel, Harem
5 International. She called it something else, but it was
6 Harem International something or other. I can't remember
7 exactly.
8 That would put it that those two bits of evidence,
9 Ms Cressy must have been working as a prostitute at Harem
10 International full-time, part-time or any other time
11 prior to the date she said in 2002 if there's any
12 consistency.
13MR DEVRIES: Mr Johnson really should read the transcript
14 before he quotes it because then he might be able to
15 quote it accurately. The question she was asked was when
16 did she start working at Harem International and that's
17 when she said 2002, 2003. The question on that page had
18 nothing to do with when did she start working as a
19 prostitute.
20HIS HONOUR: That's right. It's p.247 - - -
21MR JOHNSON: But, Your Honour.
22HIS HONOUR: Two forty-seven, "Did you ever work at Harem
23 International?" "Yes, I did." "When did you start
24 working there?" She said, "Maybe 2002, 2003."
25MR JOHNSON: But there is evidence, Your Honour, from
26 Mr Johnson and Senior Detective Jennifer Locke from
27 Purana Taskforce - - -
28HIS HONOUR: Yes.
29MR JOHNSON: - - - that the man that Ms Cressy met at Harem
30 International was stalking her at that particular point.
31HIS HONOUR: In 2002.

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1MR JOHNSON: And my evidence, Mr Johnson's evidence-in-chief,
2 points to the stalking directed at Mr Johnson, who was an
3 occupant of that house, commenced in December 2001.
4HIS HONOUR: Did you give evidence as to when it occurred? I
5 don't recollect that at all.
6MR JOHNSON: I believe I might - I believe I did, Your Honour.
7HIS HONOUR: And Ms Locke was fairly vague as to dates. I
8 think you led her on that, which is not - - -
9MR JOHNSON: That was a long time ago, Your Honour.
10HIS HONOUR: I don't put that in criticism but she said, "About
11 2002." So there's - - -
12MR JOHNSON: A long time ago, Your Honour.
13HIS HONOUR: I can't recall any evidence by you - you did give
14 evidence saying that or alleging a relationship between
15 Ms Cressy and Mr Cockram but - - -
16MR JOHNSON: Your Honour, I do get confused in this process. I
17 had the health problems of the first week of the trial,
18 including me rushing off to hospital on the second
19 morning. I've also had all of the emotional and
20 financial strain for nearly two years, Your Honour, that
21 Marianne Love writes about in her report, Exhibit No. 65.
22 On top of that, with all respect to the procedures of
23 viva voce court process, it does make it a little bit
24 that when I speak to you as I now address you that the
25 special oath I swore on 7 May 1990 as an officer of this
26 court to do everything in my best abilities to assist and
27 facilitate the administration of justice, I would have
28 thought anything that I can say in this position carries
29 equal weight to if I say it in a witness box and - - -
30HIS HONOUR: No, it does not.
31MR JOHNSON: Because it can be used against me in evidence,

2Cressy
1 Your Honour, what I say in submission from the Bar table,
2 I would have thought.
3HIS HONOUR: You should be submitting - all you should be doing
4 at the moment is making submissions to me based on the
5 evidence hitherto given in the trial. What you say from
6 the Bar table is not evidence, just as much as what
7 Mr Devries might put on from the Bar table is not
8 evidence.
9MR JOHNSON: Your Honour, I'm raising a question of law,
10 practice and procedure that an officer of - - -
11HIS HONOUR: Well, I've just answered it.
12MR JOHNSON: - - - this court is on his feet, whether it's
13 under his oath of admission, a much more special and
14 powerful oath and binds me every day, every minute of
15 life, Your Honour, or under a common oath as a witness in
16 the box.
17HIS HONOUR: Your oath is admission is to behave yourself
18 properly as an officer of this court.
19MR JOHNSON: Yes.
20HIS HONOUR: I make no observation as to your conduct and
21 whether you've lived up to that oath. Your oath, when
22 you gave evidence in the witness box was to tell the
23 truth in giving that evidence. As you fully know, the
24 evidence you give is that which you gave - your evidence
25 is that which you gave when you were in the witness box.
26 You are now doing nothing more than filibustering and
27 point taking to waste time to try to fill the unfortunate
28 prediction of Mr Devries that we will still be here next
29 Thursday. Now, let's get back to the evidence and see if
30 you can assist yourself by making a sensible submission.
31MR JOHNSON: Excuse me, Your Honour, is next Thursday the date

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1 you first gave us?
2HIS HONOUR: I do not know. Now, Mr Johnson, I've told you
3 before I'm not going to force you to make a final
4 address, I strongly recommend you do, but if you think
5 you can just stand there and waste my time I'll sit you
6 down.
7MR JOHNSON: Your Honour, I will - - -
8HIS HONOUR: Just focus on the points you want to make. You've
9 made some useful points - - -
10MR JOHNSON: Still completing - - -
11HIS HONOUR: Stick to it.
12MR JOHNSON: Still completing credibility issues, Your Honour.
13 Ms Cressy gives some evidence at p.247, Line 22, that at
14 the time she says first working at Harem International is
15 very distressed and mixed up in timing, that's all I want
16 to say, Your Honour. It contradicts the evidence I've
17 given that she was working as a prostitute earlier than
18 that date at Harem International. I gave evidence of
19 stories she told me of clients, members of the training
20 group of the Russian Olympic team who were billeted in
21 Melbourne, according to Ms Cressy's story - - -
22MR DEVRIES: Which Your Honour ruled out.
23MR JOHNSON: - - - in the year 2000 Olympics.
24MR DEVRIES: That's irrelevant, Your Honour.
25HIS HONOUR: Yes, thank you.
26MR JOHNSON: I think that goes to credibility. There's also my
27 story, the truth that I met this lady at approximately
28 2.20 a.m. on Saturday, 12 September 1998, in a brothel in
29 Geelong called "Lorraine Starr" where she was working as
30 a prostitute. I didn't know her age at that particular
31 point but she was certainly a young lady - I later found

2Cressy
1 out she was 19 - under the assumed name of Claudia, which
2 Boxing Day last year when I discovered her handwritten
3 semi-factional, little bit fictional memoirs, I
4 discovered Claudia happened to be the name she chose
5 because it was her confirmation name.
6 At p.249 of the transcript, Line 27, I asked
7 Ms Cressy when did she last work at Harem International
8 and she says, "A very, very long time ago." Now, Your
9 Honour, at p.249, Line 27, if you would perhaps all turn
10 to that page in the transcript, and then she adds to
11 that, "I don't know, 2004, 2005." Now, in - I then
12 proceeded to cross-examine Ms Cressy and asked her to
13 consult the extracts from her diary pages that showed
14 that she was indeed working at Harem International in
15 2008, August 2008. That's only a few months before trial
16 commenced. So, there's either a credibility or a serious
17 memory problem, Your Honour. And not only was she
18 working at HI, Harem International, but three different
19 days in that one week she worked at three different
20 brothels, Your Honour. She says, "A very, very long time
21 ago in December 2008," she hadn't worked there since
22 2004, 2005 but she'd been there three months, four months
23 prior to stepping into the witness box, Your Honour. It
24 goes to credibility.
25 The last point, the suggestion that she's finished
26 working, well, do we believe it or not? Clearly there's
27 no way I would have any evidence to - or indeed it has
28 any relevance to the case, does it, Your Honour?
29 Page 248, Line 31, is Ms Cressy's story again that
30 the dingo stole her evidence. I'm very upset that
31 Mr Devries, when I tendered Illyana Patricia Cressy's

2Cressy
1 birth certificate, issued on 22 June 2007, said at that
2 point in my evidence-in-chief, "Oh, I need to look at
3 that, that was one of the stolen documents." He repeated
4 his remark in this court today before lunch. As I said
5 on the date, the date that this certificate was issued,
6 the person it was issued to over the counter must have
7 been in Australia.
8Now, if you look at those diary pages for Ms Cressy, she was
9 off in China with Mr Mark at that time. She could not
10 possibly have been the person who purchased this
11 certificate over the counter from the Births and Deaths
12 Registry on 22 June 2007 because she was out of the
13 country, Your Honour.
14 So, once again, I am accused of be a stealing dingo,
15 a thieving lying dingo. How wild and unsubstantiated is
16 that when you've got a statutory record to prove, to
17 totally prove, that this is my document that I purchased.
18 I actually noticed looking through those diary pages that
19 there's a reference later in that month well after
20 22 June 2007 there's a little note there Ms Cressy wrote
21 something about birth certificates for all the children.
22 Now, why would she have wrote a note to remind
23 herself to buy birth certificates if on 22 June 2007 she
24 already had them, Your Honour. I don't think there ever
25 was a dingo, Your Honour. I can lead nothing either way
26 but I think I've indicated the fact that I'm not that
27 lying thieving dingo Mr Devries has now twice accused me
28 of at the Bar table.
29 That in itself I think is a matter within your
30 residual inherent jurisdiction under Chapter 4 of the
31 Legal Practice Act, Your Honour. If you decline to take

2Cressy
1 that up I will be simply, as Your Honour correctly
2 suggested, referring this bit of transcript to the Legal
3 Services Commissioner in due course. That's all I want
4 to say about dingos and credibility and when did we
5 become full-time, part-time or any other time
6 prostitutes, that's just extraordinary.
7 I wish to turn to the other level of credibility.
8 Although in opening the plaintiff was to be the sole
9 witness for the prosecution case - forgive me, for the
10 plaintiff's case. On the, I think it was the third day
11 of the trial, the plaintiff's mother, another Ms Cressy,
12 gave evidence. Now, credibility is an issue with both
13 Ms Cressys, Your Honour.
14 I'd like to take you to pages of Ms Cressy Snr's
15 evidence. I believe this was the afternoon of
16 4 December, Your Honour. Forgive me, I haven't gone back
17 and totally paginated this. There's a reference I
18 mentioned earlier p.317 Line 26 of the transcript where
19 Ms Cressy Snr said that she first became aware Ms Cressy
20 was working as a prostitute when, I think her words were,
21 "When you were both living at Dorrington Street",
22 and I've mentioned that I think twice already this
23 morning, OK.
24HIS HONOUR: Indeed.
25MR JOHNSON: I think asked Ms Cressy Senior, "Well what about
26 when we were all, that's three adults and five children,
27 or three adults and six children if you want to double
28 count Ms Cressy Jnr, overall living together at South
29 Yarra", and she knew nothing about that. Now, Ms Cressy
30 Jnr has already admitted that she was living in my house
31 at South Yarra when Mr Cochram started – when she started

2Cressy
1 – well she was working at Harem at that time.
2 Now, the evidence of myself in-chief and Ms Locke
3 in-chief says that it was Harem International where
4 Mr Cochram tracked her down to South Yarra and began
5 stalking her. And then it's also confirmed in the
6 passage in Ms Cressy's handwritten memoirs, fictional
7 factional memoirs, about being a hairist, not a racist,
8 and redheaded men are her nemesis, "He followed me home
9 from work then in South Melbourne and followed me taking
10 my kids to crèche", et cetera, et cetera, OK, all
11 confirms.
12 My evidence and also Ms Cressy Snr's
13 evidence-in-chief was to the effect that when Ms Cressy
14 was living at 5 Illoeura Avenue, Grovedale in 1998 when I
15 first met Ms Cressy Jnr, Ms Cressy Snr was living there
16 as well, along with Ms Cressy Snr's then boyfriend, a
17 young man about her daughter's age who was the father of
18 the youngest of her three daughters by three different
19 men. Ms Cressy, the plaintiff's youngest of three half
20 sisters who I think is ten in June, Your Honour. They
21 were all living there.
22 So given that my evidence corroborated by
23 Ms Cressy's handwritten fictional factional memoirs put
24 her working at the brothel Lorraine Starr in 1998 at
25 2.20 a.m. on Saturday, 12 September 1998, to be precise,
26 Your Honour, I don't know how Ms Cressy Snr could claim
27 not to know that her daughter was working at Lorraine
28 Starr as a brothel[sic] at that time.
29 Unless of course I lack all credibility which would
30 – and my story is found untrue by Your Honour either
31 directly or by reason of Your Honour preferring an

2Cressy
1 alternative story. Now, I'm not going to call that
2 lawyers always tell the truth, prostitutes always tell
3 lies card. It's not for me to pull that card. I'm being
4 distracted by some remarks - - -
5HIS HONOUR: Well I've told you before that that sort of
6 submission would simply have no acceptability with me at
7 all. I do not judge people - - -
8MR JOHNSON: Nor should - - -
9HIS HONOUR: Just a moment. I and no other judge of this court
10 would judge a person by the occupation that they have
11 outside court. I judge them by the quality of the
12 evidence that they give in this court, Mr Johnson. And I
13 also tend to judge them by how they conduct themselves in
14 court.
15 And when they're officers of this court, I
16 particularly take a dim view of them of their
17 personality, their character and indeed their credibility
18 when they deliberately misconduct themselves and when
19 they so lower their standards as to try to belittle
20 another person because of his or her occupation and think
21 that that will have any appeal to a Supreme Court judge
22 of this court. That is how I judge people, Mr Johnson.
23 And that's how I will judge them in this case.
24MR JOHNSON: I'm grateful Your Honour does if that's
25 100 per cent correct as a matter of human dignity and
26 under the legal - - -
27HIS HONOUR: You call yourself a human rights lawyer.
28MR JOHNSON: Yes, Your Honour.
29HIS HONOUR: You are simply an oxymoron in standing there when
30 you say that. You are nothing more than a contradiction
31 in terms when you deliberately insult another person

2Cressy
1 who's a litigant in this court because of their
2 occupation.
3MR JOHNSON: I am saying I'm not pulling that card and no one
4 should, Your Honour. What I'm saying is that a witness,
5 in this case the plaintiff, has given evidence in the box
6 which is contradicted by other evidence. Unintentionally
7 given by that witness in written form in the memoirs;
8 fictional, factual memoirs that are now tabled. It's
9 also contradicted by evidence given by a senior detective
10 of the Purana Taskforce, Your Honour. I'll leave that
11 there. And what I'm suggesting here is that there must
12 be a question mark for Your Honour as to the veracity of
13 Miss Cressy Senior's evidence, given that she was not
14 aware that her daughter had worked as a prostitute until
15 2003, Your Honour.
16HIS HONOUR: Why would that be so? That is to say - - -
17MR JOHNSON: Because - - -
18HIS HONOUR: - - - Miss Cressy had been working for some years
19 before that, just for argument's sake, as Miss Pippin
20 Cressy it's not necessary that her mother would know
21 that?
22MR JOHNSON: Because they were living together in a house in
23 Grovedale.
24HIS HONOUR: So?
25MR JOHNSON: At 5 Illouera Avenue, Grovedale, from – at least
26 if not earlier than September 1998 - - -
27HIS HONOUR: I find that argument is weak.
28MR JOHNSON: Miss Cressy has two little boys, one only a few
29 months old and is working as a prostitute. Who's looking
30 after the children? Who would want explanations why
31 they're looking after the children? I put it to you that

2Cressy
1 there's a question to be asked about Miss Cressy Senior's
2 evidence on that score, Your Honour. I want to put it no
3 more highly than that. Other issues going to Miss Cressy
4 Senior's credibility, well, she admitted in the box that
5 she had a lease in respect of her residence at my
6 property – Mr Johnson's property, 12 Lisa Court, Hoppers
7 Crossing.
8 She admitted in her evidence – this is under cross-
9 examination I believe that she didn't pay rent for the
10 first year because she had a big phone bill and she had
11 to buy a car. She admitted that she didn't pay rent
12 which was only at half the market rental or thereabouts
13 anyway, from early March to the end of October 2007.
14 That's some seven months.
15HIS HONOUR: I don't recall that but you may be right.
16MR JOHNSON: There was an admission - - -
17HIS HONOUR: I recall that allegation made by you at some stage
18 but I don't recall that being put to Miss Cressy in
19 cross-examination. I don't recall it. You may be right.
20MR JOHNSON: I believe she admits that the VCAT Tribunal issued
21 in favour of me and ordered for possession of the house,
22 and - - -
23HIS HONOUR: She said, at 314. "Initially when I moved into
24 Lisa Court I did not pay the defendant rent. I lived at
25 those premises for four years". That's my summary.
26 You'd have to have a look at what she said at p.314.
27MR JOHNSON: Sorry, was that 314, Your Honour?
28HIS HONOUR: Around about there. Now, my page references and
29 my notes sometimes are approximate. She agreed that she
30 didn't pay you rent for the first six to 12 months that
31 she was living there. "Explained that in my letter to

2Cressy
1 you that I had to buy a car and there's some other things
2 I had to do that weren't part of the original set up and
3 agreement for when I moved in". Yes, and she had to get
4 a phone. So it's p.314.
5MR JOHNSON: Thank you, Your Honour.
6HIS HONOUR: So what's your point?
7MR JOHNSON: This is a lady who doesn't respect - when a
8 gentlemen gives her a hand up by giving her a house to
9 live in at a very deeply subsidised rental basis. She
10 doesn't respect that she doesn't pay the rent. Not for
11 the first year. Not for the bulk of the last year.
12 Interesting way to live. Miss Cressy Senior also admits
13 to having some mental health issues. Serious depression
14 episodes. Some serious drug taking and alcohol problems.
15 She admitted that under cross-examination.
16MR DEVRIES: To the contrary she denied drug problems. She
17 didn't say she had serious mental health issues.
18HIS HONOUR: No.
19MR DEVRIES: She said she had depression.
20HIS HONOUR: Some depression.
21MR DEVRIES: Yes.
22HIS HONOUR: That could hardly go to anyone's credit, that they
23 have depression.
24MR JOHNSON: It would go to the quality of their recollections,
25 as to whether - - -
26HIS HONOUR: Why?
27MR JOHNSON: Then only in re-examination did she remember to
28 say anything to contradict her earlier evidence under
29 cross-examination, or in-chief I think, to the effect
30 that she was a tenant at that property on a very sweet
31 rental deal. She said something about – and I'm doing

2Cressy
1 this from memory. I haven't tracked it back to the
2 transcript, Your Honour. I apologise for that.
3 Something like, "James and Pippin bought Lisa Court for
4 me and my two other daughters". Hardly a clarification
5 of evidence given in-chief or cross-examination, Your
6 Honour. I say there are issues about Miss Cressy
7 Senior's credibility. I can say no more than that.
8 Now, let's go back to the lived with and I've said a
9 few times that I don't have to prove where I lived or who
10 I lived with. Miss Cressy has to make her case that I
11 lived at a particular residence, that we were both living
12 there and the nature of the living arrangements was a de
13 facto, bona fide de facto domestic relationship. Now,
14 one of the issues is my apartment in Bourke Street. Was
15 it an office or was it a home where I did some office
16 work from? Now, there's no doubt in my evidence-in-chief
17 that I did have staff coming in a few days a week. Your
18 Honour has an exhibit now which shows the floor plan
19 basically, 59A, which when I re-entered the box I
20 confirmed as an identical plan to 2502 apartment to 2302
21 apartment.
22 Now, as I said in my evidence-in-chief the first
23 time round, for much of my working life I have had two
24 offices; two main clients funding my practice. I've been
25 a two client firm, Your Honour. I would go to my
26 clients' offices where I'd have an office set up.
27 Treated like an in-house employee, Your Honour. I
28 believe I tendered or tried to tender a Primelife firm
29 list to show that I'm Extension 3407, Your Honour. I've
30 been Extension 334 at Barwon Water for nine years, Your
31 Honour. I had no need to have an office set up in my

2Cressy
1 apartment. I'm spending most of my working hours in a
2 fully functional legal office within a listed company.
3 I said in South Melbourne, but originally they were
4 actually in Collins Street, corner of Collins and William
5 when I first moved into 909. So I'd walk half a block,
6 four days a week to get to Primelife. Barwon Water, I
7 would drive down to Geelong on a Wednesday and I had my
8 office down there. I had no need to have an office at
9 909, it was purely residence Your Honour.
10 I didn't give the detail on all of this, but it gets
11 to - skating to the edges of relevance, but yes I did
12 have staff coming into work in my office that I have set
13 up at 909. There were two bedrooms. I don't do beds, I
14 multi-task, my couches pull out as beds of an evening
15 when I need them. I'm an extremely tidy man, Your
16 Honour.
17 You've got the dimensions and the luxury of my
18 Sub-penthouse 2302, from that plan, Exhibit 59A. You
19 just drop down three levels and in there that's what I
20 have. I don't have to prove that it was my home.
21 Whether it was or wasn't my home means absolutely
22 nothing. I could have had a home somewhere else, Your
23 Honour that I haven't given any evidence about.
24 The plaintiff has to demonstrate that I lived at a
25 particular place, we both lived at that place and the
26 nature of the arrangements were a bona fide domestic
27 couple. I'm telling Your Honour, she fails in terms of
28 the two years - plus two years as required by s.285. She
29 fails on each of those and given that she fails to show
30 any monetary contribution, which in the Baumgartner - the
31 Baumgartner error, 1987 was going to be the only way that

2Cressy
1 a lady and her de facto could actually get some equity in
2 the outcome.
3 My recollection, and I'm going back to 1984 property
4 law lectures before Mr Gimtay my lecturer, was that there
5 was nothing equivalent to Part 9 of the Property Law Act.
6 Now I may have a false memory. This is going back to
7 1984 and so that a lot of those constructive trust cases,
8 including a homosexual case, the name I can't remember,
9 that Mr Justice fully gave it the short shift for reasons
10 perhaps he shouldn't, dealing with people's sexual
11 orientations.
12 The only way to get some equity in these sorts of
13 domestic living arrangements was by a constructive trust
14 only. So the Baumgartner v. Baumgartner to these and
15 that it favours a constructive trust is a little bit
16 skewed, because that was the only path to redress an
17 inequity. My recollection was that there was no
18 statutory Part 9 process as an alternative for a humane
19 method of addressing that sort of inequity was in
20 Baumgartner v. Baumgartner.
21 In terms of - I don't have to prove I lived at 909
22 and 2302 but I did, Your Honour. This is what I said,
23 it's what the managing agent said and to this the
24 evidence is very famed because no one jumped up and said,
25 "Yes I used to visit Mr Johnson regularly and I saw", no
26 one did that. They all saw things that they expected to
27 see and it wasn't abnormal. Ms Briggs said that "Yes, I
28 was his managing agent when he was at 909. I didn't
29 really see him at 2302 but I knew he moved", because she
30 changed roles within her company. She did the
31 inspections, yes I had desks. Certainly, I had one room

2Cressy
1 that was exclusively set up as a study, as an office.
2 It's where my PA came in a couple of days a week, but I'm
3 leading evidence from the Bar table, Your Honour.
4 The other room - student bedroom. I believe I said
5 in evidence, you know where the couch that pulled out,
6 and a desk and the living area with the big wall screen
7 television that my children loved playing their
8 Playstation games on. Bigger than real life. That had a
9 couch that folded out as well. It was Park Avenue living
10 and for my little darlings, they loved it. They loved
11 it.
12 This is the Queen Street neighbour. This is
13 interesting. We're flicking back to the other scenario.
14 How does Ms Cressy prove that I lived at that place. Why
15 didn't she call any neighbours as witnesses? If we never
16 socialised in this fantasy relationship for nine years,
17 we don't have any videos of children's parties or my 40th
18 party, or anything like that, what about the next door
19 neighbour. Not called, Your Honour. Isn't that
20 suspicious, Jones v. Dunkel presumptions. Well, a
21 witness that should've been called must have been no good
22 to the case because they would've presented negative
23 evidence.
24 I did call a witness - as a witness a neighbour to
25 the property at 166 Queen Street. A lady that I met in
26 very strange circumstances well after the date that the
27 relations that Ms Cressy and I had, had soured. A lady I
28 met in October 2007 and there was a lot of debate about
29 whether we did meet or had met before. I had certainly
30 seen her at the house in Queen Street but I had been
31 visiting and she was visiting. She gave quite a bit of

2Cressy
1 evidence.
2 We covered this when I was giving evidence in chief
3 and when I was questioning Ms Dek-Fabrikant and there was
4 a lot of issue about a statement that Ms Dek-Fabrikant
5 made to my former lawyer, Ms Kelly and in the end, rather
6 than getting the full statement in evidence, and I don't
7 know why it wasn't wholly admissible, Your Honour, some
8 certain paragraphs of that statement were read out. And
9 the gist of what Ms Dek-Fabrikant said was that she was a
10 regular visitor to 166 Queen Street, to the Cressy family
11 household who lived there.
12 She was aware of my existence in some gate sense.
13 Her impression was that I was a visitor and the Cressy
14 children used to love and come and stay with me in my
15 house in the city.
16 Mr Kevin Enright, the principal of the school, he
17 didn't socialise with us. He didn't assume anything. He
18 saw what appeared to be a Mum and appeared to be a Dad
19 and three kids. He just presumed what any person would
20 presume.
21 Jennifer Locke - the senior for Jennifer Locke, she
22 smiled with a little whoopish grin, and said in the
23 witness box, "You were definitely a couple". Now this is
24 in late 2003/2004. That's - - -
25HIS HONOUR: I didn't think she said that, she said she
26 appeared to you - to her to be a couple - - -
27MR JOHNSON: Yes, Your Honour, but if you put it in its
28 timeframe we're talking early 2004.
29HIS HONOUR: Yes.
30MR JOHNSON: That's not relevant to the plaintiff's case in the
31 minimal that she must meet to present a case for me to

2Cressy
1 answer. She has to show that we were living - her and I
2 at a place together in a domestic, bona fide relationship
3 (indistinct) two years prior to 26 November 2007 when she
4 issued the writ.
5MR DEVRIES: Your Honour perhaps - - -
6MR JOHNSON: That means 26 November - if I may be allowed to
7 continue without interruption, 26 November 2005. Miss
8 Locke's involvement goes back to - what was the date of
9 the intervention order, 22 January 2004. That's 18
10 months, not more than that, prior to the relevant window
11 in terms of making a case under s.285 of the Property Law
12 Act. Further - now if I hadn't been such an embryotic
13 advocate, i.e. if I'd thought of this at the time not an
14 hour after court closed on 9 February - 9 February, yes,
15 Your Honour, "Miss Locke did you ever attend any social
16 functions where the plaintiff and Mr Johnson were
17 together appearing as a couple?". You know what the
18 answer would have been. I can't give it because it would
19 be leading evidence from the Bar table. "Miss Locke,
20 where did these interviews take place?".
21MR DEVRIES: This is totally irrelevant.
22HIS HONOUR: What's this got to do with it Mr Johnson?
23MR JOHNSON: I'm telling you that there are no witnesses, apart
24 from Miss Cressy's senior - - -
25HIS HONOUR: Well I think the point you're making is Miss Locke
26 only had a very limited opportunity to make any
27 observation about whether you were a couple or not.
28 That's the short point you're making.
30HIS HONOUR: All right, well just make it shortly.
31MR JOHNSON: And it is emphasising the fact that Miss Cressy

2Cressy
1 hasn't produced any evidence - nothing documentary to put
2 me as even living at 160 (indistinct) Street. I know the
3 very simple answer of why she has no such evidence
4 leading from the Bar table (indistinct) be saying it, but
5 she doesn't have a case I'm living there. Now if I'm not
6 living there at June 2006 when I moved her into the
7 house, I'm living in my apartment 909.
8 Now that takes up June 2006 to November - sorry May
9 - I need to track back and say that well, all right, if
10 she's lost there, June 2006 I'm not living there, she
11 should have issued her - she was still OK, she had to
12 issue proceedings before June 2008, which she did, OK.
13 But she's still got to show a two year relationship of me
14 living at Point Cook with her in a bona fide domestic
15 relationship for two years prior to June 2006, OK. The
16 mere fact that I wasn't living at Queen Street with her
17 in de facto relationship, or even living there at all
18 Your Honour, if you make that finding it doesn't destroy
19 her case. It destroys her credibility, and that may
20 destroy her case. Her credibility and her case may
21 survive if she can show that I lived at Point Cook for -
22 in a - for two years - June to - June/July 2004 to
23 June/July 2006. Now the difficulty there is Your Honour
24 I - from July 2003 I was living in Bourke Street
25 Melbourne. So she then has to - she has to prove her
26 case that I was living at Dorrington Street for the two
27 financial years 2004 to 2006.
28 Now where's her evidence, where's the neighbours
29 from Dorrington Street, where's the social functions et
30 cetera? There's nothing Your Honour. Those witnesses
31 that you would expect, those videos, those cards, they're

2Cressy
1 not there. So she fails to make her case if I'm mute on
2 the issue. I explained where I was for that period, so
3 she's got the added burden not only making her case,
4 she's got to dismiss my case. This brings me to the very
5 exciting thing I think, and this is Exhibit F, the Kelly
6 factor.
7 A copy of the affidavit sworn by the defendant in
8 the Federal Magistrates' Court on 13 September 2007.
9 According to Federal Magistrate Damien[sic] O'Dwyer I
10 could be looked up for three years for having this
11 discussion with you right now Your Honour, because I'm
12 referring to a document that came of the Federal
13 Magistrates' Court. I'm in violation of - well no longer
14 the interim orders of 9 September 1998, but the final
15 orders of 6 February 2009. Sorry, I said 1998, I meant
16 2008 of course. The decades fly quickly Your Honour.
17 Now this is an amazing document, it's a document that was
18 prepared as I said in evidence in cross-examination -
19 under cross-examination of Mr Devries I believe, it was
20 prepared by Miss Kelly. It was prepared in some haste.
21 If you look at the words - I don't actually have the
22 affidavit in front of me, but it says something along the
23 lines of that between a lengthy period - - -
24MR DEVRIES: I'll hand him a copy Your Honour so he doesn't get
25 it wrong.
26HIS HONOUR: Yes, thanks Mr Devries, I'm grateful to you.
27MR JOHNSON: There's an excess of caution but I'm grateful.
28HIS HONOUR: Paragraph 2, "I commenced a relationship with the
29 respondent".
30MR JOHNSON: Yes, a relationship, what sort of relationship?
31HIS HONOUR: In November 2008 - (4) "the respondent and I have

2Cressy
1 lived or partly lived together from December 98 to Jan
2 99, and from May 99 to June 2007".
3MR JOHNSON: Yes, yes, and as I said in evidence-in-chief, I
4 did spend a few nights over Christmas 98 as a visitor
5 over-nighting with Miss Cressy junior and her two little
6 boys, and that was when I met her mother. Her mother was
7 pregnant at the time, I didn't know. Miss Cressy's
8 junior's younger of two half sisters, and the then
9 boyfriend and the dad of Miss Cressy's youngest - sorry,
10 the youngest of the three girls to Miss Cressy senior.
11 OK. This paragraph is gobbledygook Your Honour, and it
12 doesn't really say anything. It was written by a family
13 lawyer - Miss Kelly does claim to be an accredited family
14 law specialist. I hope I got that right. She certainly
15 charges at a - has a very high charge out rate. "You
16 commenced a relationship, what sort of relationship?".
17 I'll come back to that. That was in Paragraph 2.
18 Paragraph 4, "The respondent and I have lived or partly
19 lived together from December 1998 (indistinct). OK,
20 December 98 to January 1999,
21 I look at that again and I don't like that, because
22 it says, "Lived or partly lived". Now that's kind of
23 referring in my evidence to the sleeping over bits, and
24 Ms Cressy and the children would come and spend a weekend
25 with me at Gheringhap Street. Does that constitute
26 living or partly living? When you're very keen to make
27 the connection that you've had in the three little
28 children's lives, it's easier talked up a little.
29 The January 99 to the May 99, there's a gap. That
30 was the period with no communication between Ms Cressy
31 and I whatsoever, OK. Then the June 2007. Now I don't

2Cressy
1 know why that June 2000 – in April, May, June 2007 was
2 picked. This wasn't actually the affidavit that I
3 thought it would be.
4 The difficulty I have here, Your Honour, is my
5 recollection is of another, I think another affidavit
6 which has very similar words. The three children and the
7 respondent lived with me, or partly. I lived or partly
8 lived with the three children and the respondent
9 basically during those periods.
10 What I wish to say about that statement was well it
11 is true that I partly lived – sorry I did live with the
12 respondent during that period that we were at South
13 Yarra, and the little period at Dorrington Street.
14 The children continued – I continued to partly live
15 with them to the extent that they stayed with me over
16 that elongated period, including the periods when
17 Ms Cressy went overseas as per my evidence in chief, to
18 work in (indistinct) in Amsterdam, or to take the older
19 of the boys on a holiday to Singapore when the two little
20 ones would stay with me at the house in South Yarra, OK.
21 That was the first point I wanted to make.
22 The other point I want to make is Ms Cressy and I
23 had a relationship, there's no doubt about that. We may
24 have conceived a child, although Ms Cressy has protested
25 in every court of the land my request for DNA testing,
26 and the child's nomenclature doesn't have any reference
27 to my – me or my ancestors either.
28 The word 'relationship', relationship, people can
29 live together for a variety of reasons, Your Honour.
30 What was the nature of my relationship with Ms Cressy?
31 When she was living with me at South Yarra, were we

2Cressy
1 living as brother and sister? Were we living as man and
2 wife? Were we living as father and daughter given the
3 age difference? Where are – the age difference between
4 Ms Cressy and I is pretty close to the age difference
5 between Ms Cressy and her oldest child. One's slightly
6 younger than the other.
7 Were we living together as employer and employee?
8 Were we living together as friends? Were we living
9 together because I was her benefactor, because she was
10 out on the street from the Salvation Army with three
11 little children who had nowhere else to go? OK, that one
12 a big tick in my evidence, Your Honour.
13 Were we living together as pimp and prostitute? The
14 suggestion was put to me under cross-examination from
15 Mr Devries. I put it to you that - - -
16HIS HONOUR: I don't recall that.
17MR JOHNSON: I put it to you that (indistinct) - - -
18HIS HONOUR: What I do recall in your cross-examination was
19 that you made the concession that reasonable minds may
20 conclude that at least during that period you did have a
21 domestic relationship as defined in Part 9 with the
22 plaintiff.
23MR JOHNSON: I said that reasonable minds could differ on that,
24 but my opinion is we did not, Your Honour. I think that
25 – Peter Cockram experience, the Senior Detective Jennifer
26 Locke experience, all that counts against her. Your
27 Honour, I was barely ever at the house. I'm working - -
28 -
29HIS HONOUR: You've been asking a series of irrelevant
30 rhetorical questions given the concession you made in
31 your cross-examination.

2Cressy
1MR JOHNSON: I'm sorry Your Honour.
2HIS HONOUR: Move on.
3MR JOHNSON: I'm sorry, Your Honour, I missed that point
4 because I was on to the next matter. My point is
5 Your Honour, that Ms Cressy and I occupy the same house,
6 but there are a number of reasons to explain that.
7HIS HONOUR: If they're not in the evidence - - -
8MR JOHNSON: Ms Cressy - - -
9HIS HONOUR: If they're not in the evidence now I won't accept
10 them.
11MR JOHNSON: But it is Ms Cressy, she can't simply point to the
12 fact that she lived in a house with that person.
13 Ms Cressy senior lived in that house with me.
14HIS HONOUR: Yes.
15MR JOHNSON: Ms Cressy senior lived in the house at Point Cook
16 with me. OK, I had two Ms Cressy's living in my house.
17 Am I in a de facto relationships with both of them? No,
18 Your Honour. I'm in relationships with both of them, but
19 relationship can mean a lot of things. I discussed my
20 relationship with you, Your Honour, and given the power
21 that you have, I will need a (indistinct) - - -
22HIS HONOUR: We do not have any relationship, that I can assure
23 you.
24MR JOHNSON: You have a very powerful relationship over me,
25 Your Honour - - -
26HIS HONOUR: I do not.
27MR JOHNSON: (Indistinct) my children, my descendants. My
28 future and my present, and you can even (indistinct)- - -
29HIS HONOUR: You're talking nonsense, Mr Johnson, now move on
30 and address if you have an issue. Your point I think
31 you're making about South Yarra and the evidence was that

2Cressy
1 there were a number of people living at the premises at
2 South Yarra. It wasn't at which it militates you say
3 against there being a domestic relationship between
4 yourself and Ms Pippin Cressy. That's your point,
5 isn't it?
7HIS HONOUR: Right.
8MR JOHNSON: Also it's the burden of proof point. Merely
9 saying I lived in the same house as that man doesn't – a
10 foregone conclusion we were de factos.
11Particularly when there are other reasons in the evidence to
12 explain how you can live under that same roof. And being
13 evicted from the house you'd been in for nearly three
14 years by the Salvation Army and unable to find anywhere
15 else for yourself and your three little children,
16 knocking on the door of the alleged father of the
17 youngest three, that would be a pretty strong reason why
18 I allowed Ms Cressy and the three children, took them in
19 with me, away from Grovedale when I moved from Gheringhap
20 Street up to South Yarra, Your Honour.
21 All of that's in the period that's outside of the
22 two years plus two years, strictly the bare minimum that
23 the plaintiff has to demonstrate to prove her case. But
24 again the point is that the plaintiff has to demonstrate
25 the case that the living together was on a bona fide
26 domestic basis. Now, there's other evidence, the Peter
27 Cochram relationship. Not presented in the best way but
28 I am an embryonic advocate and I was under a lot of
29 emotional, medical and financial distress even while that
30 first week of the trial was unfolding.
31 A couple of questions perhaps, a failure to

2Cressy
1 cross-examine the plaintiff brought about by the fact
2 that I thought this court proceeded on the basis that all
3 the documents filed (indistinct) the body of evidence. I
4 thought the judge read the depositions, Your Honour.
5 That's what they do, my limited experience is, in the
6 Federal Magistrates' Court. A federal magistrate
7 reads all the depositions. And they growl if they're
8 meant to be.
9 I had no idea until I was already in the box,
10 Ms Cressy was well in the box, more than 24 hours, that
11 that whole body of what I regarded as evidence before the
12 court wasn't actually before the court at all. OK,
13 that's – I think that's all I need to say about
14 Exhibit F.
15 OK, moving on, this is something that comes out of
16 Your Honour's judgment of 48 hours ago. The suggestion
17 that the plaintiff may have had a right to come to
18 Dorrington Street, Point Cook and remove fire boxes of
19 documents and mobile phones, et cetera, et cetera.
20 Even on that issue of where you're looking, Your
21 Honour, at whether if the plaintiff by counterclaim could
22 establish the evidence is there a case to answer, I think
23 credibility comes into it. I think there were three
24 things. The witness' credibility, the defective court
25 process up to that point, including the bizarre,
26 Mr Johnson's a solicitor of 18 years' good standing but
27 he's a crazy person, that's mental capacity and therefore
28 legal capacity I'm sprung on that notice. The lack of
29 discovery according to the rules - - -
30HIS HONOUR: We've been through all this four or five
31 times - - -

2Cressy
1MR JOHNSON: I think that infects - that infects - - -
2HIS HONOUR: At least Mr Devries - - -
3MR JOHNSON: Thank you, thank you. I'm glad I'm being listened
4 to, Your Honour. I think that infects the analysis that
5 Your Honour has to go through in terms of the plaintiff's
6 claim about me about my simple statement that she doesn't
7 have a case I even need to defend and therefore it speaks
8 for itself that if we've got to trial and at the trial
9 stage and completion of the – there's no case for me to
10 answer, gee, suggest an ulterior purpose, Callinan's
11 motivation.
12 It's one thing to actually state in writing as
13 Flower and Hart and Dr Ian Callinan did that there's no
14 substance to the case that you're bringing, the
15 plaintiff's bringing, but I think it's much the same
16 thing if you get to the point where you're up and running
17 and it's on the basis well let's hope we get some
18 evidence before we go to trial boys or look, we really
19 should be aware that we don't, we haven't done the
20 enquiries, we don't have the evidence. It speaks for
21 itself, Your Honour.
22 And just like, forgive me, Your Honour, but I don't
23 know how you could decide on the no case to answer for
24 the defendant's, second and third, by counterclaim
25 without hearing the submissions and without looking at
26 issues of witness credibility, the embryonic nature of
27 all of the pleadings, my defence and counterclaim half
28 baked as all counsel, I think, admitted except perhaps
29 Mr Devries and the defective process by which this was
30 brought to trial, set down on a scandalous estimate of
31 two days' duration, set down without affidavits of

2Cressy
1 document or interrogatories or either party settling
2 their pleadings. The plaintiff's statement of claim
3 being amended two to three days into the trial,
4 embryonic, Your Honour, defective process. As I say,
5 that fourth level of credibility in the way the
6 plaintiff's case deriving from the way that her legal
7 representatives have run it.
8 Now, we look at Ms Cressy's allegation. Her
9 credibility not even cited as something to be considered
10 in the judgment Your Honour handed down 48 hours ago.
11 I'm upholding a no case to answer on the application to
12 strike out my counterclaims against the 2nd and 3rd
13 defendants. As I said, counterclaims is a pretty
14 impressive word to put to half baked pleadings, Your
15 Honour.
16 Forgive me, Your Honour, but that involves
17 prejudging the very issue in the main process. The
18 plaintiff claims that I'm stalking her. Evidence
19 (indistinct) claims of stalking. She could claim I'm
20 President Barack Obama's grandfather, where's the proof?
21 Who has the burden of proof? Can it be just assumed,
22 written down like Dr List, oh, Mum, says this so whatever
23 Mum says. That's an aspect that Mr Johnson conveyed
24 there. I couldn't believe these words.
25 I'm Barack Obama's grandfather. Dr List would say
26 well it's been said about you, this is an aspect of you
27 in that – conveyed in that. Surely the plaintiff has a
28 burden of proof when making those allegations when the
29 opening position would be that she's not justified to be
30 there. She jointly claims ownership of those boxes of
31 documents that she took. Well can we test that? None of

2Cressy
1 those documents were used in part of the plaintiff's
2 case. None of them were attached to affidavit of
3 documents.
4 The plaintiff's guys had as much access, more
5 access, to those documents than me and they could afford
6 the 20 cents a page to photocopy them from the Federal
7 Magistrates' Court. I couldn't. Were they even relevant
8 to the case? Well the documents attached to her
9 affidavit of documents, the ones that she stole that she
10 held back and were not given over to the police who
11 thought they collected everything, attached to her
12 affidavit of documents. Your Honour, if you'd care to
13 look at them, they've got no relevance to the Federal
14 Magistrate Court proceedings, they've got no relevance to
15 these proceedings.
16 How could they - how could they be jointly owned
17 documents? Where's her name on them? Where's her
18 interest on them? Did she have the right to be at the
19 property? Well, that begs a really interesting question
20 and at one stage Ms Cressy said under cross-examination,
21 I think the question from
22 Ms Sofroniou, p.206, Line 27 of the transcript, she
23 explained to Ms Sofroniou, p.206, Line 27, "It was a
24 joint property I'd just moved out of." So, she had just
25 moved out of, she told Ms Sofroniou, when she went back
26 on 17 November 2007. Now, low and behold, where else
27 does she say anything but she let the property in June
28 2006 and moved to Altona, OK? June 2006, June 2007, go
29 from the 6th month to the 11th month, 17 months. "You've
30 just moved out 17 months ago?" "Just moved out," she
31 describes an event that happened 17 months earlier.

2Cressy
1 That's how she described it to Ms Sofroniou. Did she
2 have a right to be there? Your Honour, I had tenants in
3 that property in the interval, tenants that were in a
4 long term lease and were kind enough to move out for me,
5 I'm leading evidence from the Bar table, and I had moved
6 back into that house.
7 It is in my evidence-in-chief that I was living in
8 that house on that night in 2007 when she came in and
9 aggravatedly burglared me doing some sort of anti-
10 discovery process. She was looking for documents to
11 prove her case. Why didn't she ring or write to the tax
12 office for documents that might have something to say
13 about her income that she might have contributed to me
14 and my properties? Why didn't she write to her bank for
15 documents that might have something to say about her
16 income that might have contributed to me or my assets?
17 Why didn't she write to Harem International or Gotham
18 City or Le Boudoir or Lorraine Starr or several other
19 brothels that I haven't even bothered to bring in
20 evidence about, most of which I don't even know their
21 names, Your Honour, escort agencies, Paramour, that's a
22 cute one. Paramour, what's a paramour? Why didn't she
23 write to all those people and ask for copies of payslips
24 if she wanted documents that might be helpful to her to
25 make a case that she had some income? And that's all I
26 would have done, Your Honour. She's then got to link
27 somehow that income to my properties or to me. She
28 didn't do any of that. What did she do? She played
29 dingo, she jumped over the fence and she stole some
30 documents. She then tries to say, "Well, I had every
31 right to be there, I'd only just moved out," 17 months

2Cressy
1 earlier, Your Honour.
2 Now, how many issues I've discussed with you today
3 does that go to? It goes beyond credibility, Your
4 Honour. Does it go to contempt and perjury? If it
5 don't, I don't know whatever will, Your Honour. Are they
6 joint assets? Well, it begs the $64 question, was there
7 a relationship? Was it a de facto relationship? The
8 contents of the document, does it bear, is it evidence?
9 No, nothing, nothing relevant. I mean of the aspersions
10 about me for not running down to the Federal Magistrate's
11 Court and using all my 20 cents to copy my documents, I
12 don't need my 95 tax return, Your Honour, for those
13 proceedings or these proceedings. I don't need my credit
14 card statements from 2003, that's ridiculous, ridiculous.
15 I don't need to credit them.
16 OK, let's get onto something, something that smacks
17 of the language of a Part 9 application, Your Honour, the
18 word "contributions". Now, of course, Ms Cressy has to
19 prove an income and some contributions but even if she
20 fails, as she must, on the living together, let alone the
21 living together on a domestic basis, the diary and the
22 memoirs, is that a domesticated woman? Is that a home
23 duty person? The evidence from a mystique fabricant as
24 to the domestic family situation of the Cressy household
25 at 166 Queen Street, Altona. She fails on that. She may
26 get up on the pre Part 9 avenue, Baumgartner v.
27 Baumgartner, but she has got to show some contributions.
28 If we're not living together she can't claim through her
29 dutiful domesticity a contribution to the pool through
30 home duties, Your Honour, OK? We aren't living there.
31 She's got to prove that to get a Baumgartner v.

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1 Baumgartner as Mrs Baumgartner did in 1987.
2 Let's look at her claims of contributions, oral
3 claims, Your Honour, depending entirely on her
4 credibility in giving them, OK? She gives evidence of
5 contributions by raising kids. Well, two of her kids
6 ain't mine, Your Honour. The little one maybe. Both the
7 little one and the next little one always told that they
8 were mine and that was beyond - it's beyond doubt, it's
9 not contested that the middle one, raised up until
10 October 2007 to believe he was mine, he had me as a
11 birthright, not as a gratuity from my generous heart,
12 they're her kids, Your Honour. I was never there, Your
13 Honour. Where does she say I was never there? I'm
14 backtracking a little because there is a note in the
15 transcript which says, "James is never there." There's a
16 good reason I was never there.
17MR DEVRIES: I concede, to speed this matter up and in the hope
18 that we might finish this side of next Christmas, that
19 she did say that he worked long hours and that he was
20 more often than not, not there when the children went to
21 bed and that he wasn't there when the children got up in
22 the morning.
23HIS HONOUR: Yes, I recall that evidence, in fact, it's one
24 area where they were in common accord, that was that he
25 worked very long hours.
26MR DEVRIES: Yes, I think it's about one of the few things they
27 agreed on, Your Honour.
28MR JOHNSON: Your Honour, I was a very loving - - -
29MR DEVRIES: And that he did earn a lot of money at one stage.
30HIS HONOUR: And the other thing that was agreed on was that
31 the three children have a very warm relationship with him

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1 and they regard him as their father.
2MR DEVRIES: Yes, she went beyond stepfather and said - - -
3HIS HONOUR: Yes.
4MR DEVRIES: - - - that they treated him as their dad.
5HIS HONOUR: Yes.
6MR JOHNSON: And it's very interesting that the evidence in the
7 Family Court has me as some, what's the words, drunken,
8 violent, drug taking - - -
9HIS HONOUR: I'm not interested in that evidence.
10MR JOHNSON: - - - incestuous paedophile, Your Honour. That's
11 the story being told to - - -
12HIS HONOUR: I'm not interested in that, Mr Johnson, the
13 evidence I've had before me is to the contrary, that both
14 of you said that you have bonded well with the children
15 and in fact that stands to your credit that somehow in a
16 busy life you've nonetheless managed to assume the role
17 as a father to the three children.
18MR JOHNSON: Pretty good for a man who didn't live in the
19 household and there's no evidence that I did live in the
20 household, Your Honour. A mail redirection notice from
21 September 2007. That's pretty silly.
22 Her earnings - sorry.
23 The evidence I mentioned from Miss Dek-Fabrikant, I
24 believe she says a few brief things about the domestic
25 life of the Cressy family when they were living at 160
26 Queen Street. The condition of the house, et cetera.
27 The supervision or lack of supervision of the children.
28 I believe she made a few remarks. (Inaudible.) It was
29 5 December, Your Honour, in the morning. The roles in
30 finding the property. Sorry, I'll go back. The
31 earnings. Show me the evidence of earnings. The thing I

2Cressy
1 didn't steal from the Tax Office. Role in the property
2 finding. Show me the evidence. Show me the evidence.
3 It's just her word and her word has no credibility.
4 She says that she was working part-time and then
5 full-time in 2004. And then she began working
6 (indistinct) worker full-time. I don't know the decision
7 between part-time and full-time is for that sort of
8 industry, Your Honour. I don't know what the distinction
9 is for our industry, Your Honour. Am I full-time or
10 part-time or double-time or triple-time. As Your Honour
11 said, we must get used to going three days successive
12 with the luxury of almost three hours sleep. We're not
13 part-timers. We're way beyond full-timers. We're
14 triple-timers, Your Honour. Show me the evidence of your
15 earnings? The interesting thing is she's claiming that
16 she contributed to the acquisition of properties.
17 Now, if she had no cash flow till 2004 by that point
18 I had acquired Dorrington Street, Point Cook. This is in
19 chronological order, 12 Lisa Court and 10 Hawkers Court
20 in the one hit. Those houses were actually completed
21 only a couple of months after the Point Cook house was
22 completed, and I'd also purchased the block of land that
23 I contiguously faced into Dorrington Street, which was 7
24 Inverloch Drive. I had acquired all of those before she
25 had any cash flow or anything to claim, if you accept her
26 credibility on this point, that she had (indistinct). So
27 how did she contribute to the acquisition, Your Honour,
28 out of her cash? Couldn't.
29 I also then I think in 2005 signed the contracts for
30 Gibson Street, Caulfield, and that turned out to be 112
31 or 113 per cent bank funded. I get $11,000 back over the

2Cressy
1 mortgage. I got another 7000 in rent in the
2 pre-settlement period from then to June 2006. So she
3 didn't contribute anything to the acquisition. She
4 didn't assume the mortgage obligations because she's not
5 and never would've been, and for very good reason, a
6 party to any of my land documents. Why would she be?
7 She's got no equitable interest. She's got no interest
8 in the properties whatsoever. Why would she be down?
9 I'm not living with her.
10 I'm giving her money as a child support with subtle
11 overtones of blackmail. OK, five of the six. She
12 clearly hasn't contributed any cash to – even if we
13 accept for the moment her credibility that she has the
14 cash flow to do it. OK. Why is the last one any
15 different; the Queen Street one? Clearly – actually
16 though the last one. So many claims amended. She's
17 claiming against the house I bought in December 2007 at
18 Torquay. How could she have conceivably have contributed
19 to that? The cash for that came out of my borrowings
20 over 2007.
21 The $2m that I was assessed as credit worthy based
22 on my financials and loan applications by the
23 Commonwealth Bank. It had been assessed many years
24 earlier than that, many months earlier than that but it
25 hit a snag. It's the contracts referred to in my letters
26 to David (indistinct) and saying, "The property is under
27 contract". Was a big refinancing, additional financing;
28 $2m deal to set up to acquire three more properties.
29 Didn't contribute anything to (indistinct). So the only
30 one that – if we assume credibility and if she has an
31 income and she had some earnings is Queen Street.

2Cressy
1 Again, where's the documentation? The documentation
2 shows it's all mine. I say, well, yes, of all of my
3 properties this is one that she actually had some
4 information about before I bought it. And I say, yes,
5 she was my employee and I've given payslips. She's not
6 an office working person. Something to do. Something to
7 keep her occupied. Something to keep her not so much off
8 the street but out of the brothel, which I was prepared
9 to believe she was. She was clean for a number of years.
10 OK. I'll teach her a bit about, you know, the Donald
11 Trump, Apprentice.
12 I mention that in either evidence-in-chief or in
13 puttage or in cross-examining. Sorry, Miss Cressy's
14 puttage or under cross-examination of myself by Mr
15 Devries. OK. It's all my money. It's all my money.
16 Again, where's – forget about the tax returns. Where's
17 the bank statements? Where's the receipts suggesting it
18 was her money? It can't be, Your Honour. The
19 negotiations. Yes, I played bad cop. I had a little
20 apprentice to play good cop. I did the title searches.
21 I knew that the people I was negotiating with bought the
22 property in 1986 for about 86,000 or so. They'd been
23 there a long time and it was debt free, so they weren't
24 encumbered by a mortgagee that they had to satisfy. They
25 had much greater liberty to drop on price.
26 I also knew it had been there on the market. Taken
27 off after a long time and had just come back on. I also
28 knew the value of property there. I hope I'm not leading
29 from the Bar table. I'm sure I said this in evidence-in-
30 chief or cross-examination. Miss Cressy was looking for
31 properties around the railway track - - -

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1HIS HONOUR: I don't recall anything about that.
2MR JOHNSON: I think you'll find it's in there. Anyway what
3 I'm saying is I had my employee, my little apprentice
4 that was in my payroll as the payslips I've given in
5 evidence – one of the exhibits show.
6 Playing good cop. So I had two voices in the
7 negotiation. That's all that shows. That's all that
8 shows. The evidence she gave on prices, et cetera, and
9 what is was listed for, all wrong. Your Honour, it's
10 embarrassing. Both in her evidence Mr Devries opening
11 where he described them.
12 He didn't get a thing right for any of the
13 properties. Not a thing right. The Dorrington Street,
14 Lisa Court, Hawkhurst Court, Inverloch Drive, Caulfield.
15 About a third of the things that Mr Devries led and Ms
16 Cressy gave evidence on, after Your Honour kindly
17 reminded Mr Devries that he'd only actually got evidence
18 in on three of the six properties. I thought that was
19 quite interesting, a reminder of that magnitude to a
20 barrister of Mr Devries's experience. About a third of
21 what Ms Cressy said and got put into evidence was kind of
22 on the money, Your Honour. Kind of right, a third.
23 Why? Because she has no interest or claim or
24 involvement in the process of my acquisition, maintenance
25 and improvement of those properties except what she's
26 heard, what I've voluntarily handed over, consented in
27 those orders of Mr Justice Whelan, and whatever the
28 plaintiff's guys, her legal representatives have dug up,
29 including her fishing expedition of my banks which became
30 available I believe, on the date that the trial started,
31 2 December. It certainly wasn't evidence they took into

2Cressy
1 consideration when they issue proceedings, caveats and
2 voluntary reliefs.
3 The works that she did for me. I'm weary Your
4 Honour. The works she claimed that she did to the
5 property. Again she's my employee. She's not in my
6 office. I believe Ms Briggs gave evidence that she
7 didn't recognise Ms Cressy. I had another witness who
8 unfortunately I couldn't call because she's out of the
9 jurisdiction. I could give - well, no I can't say
10 anything the witness.
11 None of the witnesses that I called who knew me and
12 knew me living in Bourke Street, even though their
13 evidence was weak because I'm a very private man, Your
14 Honour, none of them could give any evidence or anything
15 connecting me with Ms Cressy.
16 No contributions, no organic stuff, you know
17 indirect non financial or whatever the correct - the
18 expression is, if we're not living together. If we're
19 not living together in a domestic de facto relationship.
20 So she fails on those tests as she should. I mean, if
21 you come to court with a case without any financial
22 analysis, I'm sure Mrs Baumgartner didn't do that. I'm
23 sure her lawyers didn't dare let her come into court
24 claiming constructive trust with no Part 9 avenue,
25 recognised at law, without some financials.
26 Mrs Baumgartner - where's the ring Your Honour? She
27 had a ring. She had a ring.
28HIS HONOUR: And she - - -
29MR JOHNSON: There was a son or stepson living in the house.
30HIS HONOUR: I think - I think Mrs Baumgartner, she assumed the
31 name of Mr Baumgartner and my recollection was that they

2Cressy
1 were in a de facto relationship. I think that's why the
2 issue arose because it was outside the realm of the
3 Family Court and her only recourse was by use of the
4 adoption of constructive trust which had shortly before
5 that been developed in the judgment of Sir William Deane
6 and Machinski v. Dodds.
7MR JOHNSON: Thank you, Your Honour. I skimmed the case as I
8 say. I let it - - -
9HIS HONOUR: Well you studied it at law school - - -
10MR JOHNSON: Many, many years ago.
11HIS HONOUR: - - - more recently than I did. In fact, I didn't
12 study it at law school.
13MR JOHNSON: I studied that case in - or that area of law in
14 1984 and it's a 1987 case, you're right.
15HIS HONOUR: Good.
16MR JOHNSON: Machinski v. Dodds. Now I'm thinking, now how -
17 2, 3, 4, 5 - when did I do this? I don't know. Unless I
18 studied it in a later subject, not property law.
19HIS HONOUR: Well, your studies aren't terribly important in
20 this case. Let's get back to the case at hand.
21MR JOHNSON: No, I'd like to address Your Honour on Machinski
22 v. Dodds and Baumgartner v. Baumgartner.
23HIS HONOUR: You may. Yes, because that is an alternative
24 claim made by the plaintiff, so you should address it.
25MR JOHNSON: Thank you, Your Honour. Machinski v. Dodds is
26 totally distinguishable on the facts because - and I'm
27 reading from Samantha Hepburn's, Australian Property Law
28 Cases, Materials and Analysis at p.459. Forgive me but
29 her copy in the Supreme Court Library - - -
30HIS HONOUR: Yes, I read - I read the cases in the law reports.
31 I'm not interested in what textbook writers say about

2Cressy
1 them.
2MR JOHNSON: My assertion is that Mrs Machinski and Mr Dodds
3 were in a de facto relationship and purchased a property
4 as tenants in common. There was no question on whether
5 they were de facto. There was no question about
6 credentials, because they were both registered on title.
7 Boom boom, it's distinguished from the facts of this
8 case, Your Honour. Baumgartner v. Baumgartner - - -
9HIS HONOUR: There's a de facto relationship there.
10MR JOHNSON: Yes between a pair of woodcutters I think, Herr
11 and Frau Baumgartner. The appellant, who I take was
12 Herr Baumgartner - I won't - I'll stay in English, Your
13 Honour, bought some land in his own name and there was
14 some talk about them putting it into joint names with
15 Frau Baumgartner, but they didn't do that.
16 They were living together - so they were living
17 together, there was evidence of a domestic relationship.
18 I don't know if that was enough in point of law at the
19 time to say well, domestic duties contributions, you'd
20 find your way into an interest in the property. But
21 there's some - there's a reference to a son, perhaps a
22 son of Herr Baumgartner's from a previous relationship
23 that was being looked after by Frau Baumgartner.
24 There was cross-sharing of expenses and
25 cross-pooling of income. Totally distinguishable on that
26 basis. The plaintiff, he clearly had no involvement in
27 selling - did no caring for any of Mrs Johnson's
28 children. Perish the thought. Mrs Johnson's children
29 were quarantine from Ms Cressy.
30MR DEVRIES: That is not the evidence.
31MR JOHNSON: It's the evidence of Mr Johnson in chief,

2Cressy
1 Mr Devries.
2HIS HONOUR: The evidence of Ms Cressy was in fact that from
3 time to time your children stayed with you and her until
4 - certainly from my recollection at Illouera Avenue.
5MR DEVRIES: And it was - she said they came from time to time.
6 I looked after them. We went out on excursions together
7 and she was never challenged.
8HIS HONOUR: That is - you are quite right Mr Devries.
9MR JOHNSON: Your Honour, Ms Cressy cannot even put me as ever
10 living Illouera Avenue. She just fails on the evidence.
11 It's not within the two years - within two years that she
12 needs to satisfy to get up a Part 9 claim in any case.
13 She can't put me as living in the house, I don't know how
14 she can put Mrs Johnson's children as living in the
15 house.
16 The period of this dreamy, fantasy relationship for
17 Ms Cressy to even put up a case, has to be because - she
18 can't get it up in terms of Queens Street, Altona. It's
19 got to be for a two year period, the two financial years
20 2004 to 2006
21When she was living at Dorrington Street, Point Cook and I was
22 living at 909/668 Bourke Street. Illouera, even at South
23 Yarra and Nicholson Street have got nothing to do except
24 in terms of credibility of her case.
25HIS HONOUR: You have already submitted that but in fact you
26 have diverted yourself from making some submissions about
27 the constructive trust case.
28MR JOHNSON: I just wanted to put out, Your Honour, that on
29 appeal Mason CJ and Wilson and Dean JJ said one of the
30 things the trial judge might have got wrong here is the
31 difficult issue of credibility of witnesses. Maybe the

2Cressy
1 trial judge got the credibility issues very wrong in the
2 first instance in Baumgartner v. Baumgartner and maybe
3 getting that credibility issue wrong is something that
4 the High Court corrected on appeal. That is an
5 interesting possibility for the way that this case will
6 proceed from hereon, Your Honour. I am confident Your
7 Honour is not going to make findings that just can't hold
8 up on appeal. I am very confident of that. So I would
9 say that Baumgartner v. Baumgartner is totally
10 distinguishable. The plaintiff has to prove we were
11 living together for starters and it's all stacked against
12 her, Your Honour. Even if I just sat mute. But I have
13 demonstrated a non living together, incontrovertible. So
14 she has firstly got to somehow establish a living
15 together and she has got to establish the basis of the
16 living together. Domestic, de facto. She has then got
17 to establish contributions. Cash would have helped
18 because it's easier, there's a paper trail. She hasn't
19 any of that, Your Honour, and you've got to ask why not.
20 The Tax Office was closed for two years and couldn’t send
21 out the documents.
22MR DEVRIES: Your Honour, this is the seventh or eighth time
23 this has been said. Mr Johnson has clearly, again, as he
24 has every other night of this hearing, playing for
25 stumps.
26MR JOHNSON: I will be finished well before stumps, Mr Devries.
27HIS HONOUR: I would expect you to be finished shortly because
28 if all you have got left is constant repetition of this
29 type then you are well served for completing now. But I
30 don't want you to sit down without addressing points to
31 me you intend to make but have not yet got around to

2Cressy
1 making. One of the dangers of haranguing the judge,
2 becoming irrelevant, repeating yourself is sometimes you
3 can forget to make your best points. I just suggest that
4 rather than ranting and raving there you simply draw
5 breath, have a look at your points and see if there is
6 anything worthwhile that you ought to bring to my
7 attention.
8MR JOHNSON: Thank you, Your Honour. I am at point nine of 12
9 points so I should finish quite soon. Point nine is the
10 presumptions, the Jones v. Dunkeld rule which I found
11 quite pertinent. The deal that Mr Devries and I have was
12 that I would not call Francine Irene Miller, the lady
13 brothel owner of Harem International, Your Honour, at the
14 relevant times.
15HIS HONOUR: There is no reference to her at all.
16MR JOHNSON: She was one of my subpoenaed witnesses, Your
17 Honour, and I would not be held as incriminating myself
18 for not calling Mrs Johnson, my girlfriend Stella or my
19 P.A. of - including several years at Prime Life,
20 Kathleen.
21HIS HONOUR: I'm not sure that's right. My recollection was
22 that Mr Devries, to try to finish the matter on
23 12 December proposed that he would not rely on the
24 inferences that was described in Jones v. Dunkeld and the
25 like, but then after you indicated you wanted an
26 adjournment anyway my recollection is he actually resiled
27 from that, he withdrew that proposition.
28MR JOHNSON: So you will withdraw adverse inferences against me
29 on the - - -
30HIS HONOUR: No, I'm not saying I would, but I'm just
31 correcting a - - -

2Cressy
1MR DEVRIES: I can assure, Your Honour, that I'm not going
2 to - - -
3HIS HONOUR: You're not going to rely on those decisions
4 anyway.
5MR DEVRIES: Sorry, I'm not going to rely on any resiling from
6 the four witnesses I said I wouldn't - - -
7HIS HONOUR: So you won't be asking to draw an adverse
8 inference.
9MR DEVRIES: In respect - I think there were four known
10 witnesses that I referred to.
11HIS HONOUR: There were a couple of ex-girlfriends or alleged
12 ex-girlfriends, Stella and someone else.
13MR DEVRIES: An employee and I think there's one other - and
14 his ex - and his wife.
15HIS HONOUR: Right.
16MR JOHNSON: Mr Devries, could you refresh my memory.
17MR DEVRIES: I didn't cut a deal with Mr Johnson.
18HIS HONOUR: I didn't think you would.
19MR DEVRIES: I voluntarily - in order to speed things up I
20 wouldn’t rely on Jones v. Dunkeld.
21HIS HONOUR: His ex-wife and employee.
22MR DEVRIES: I believe so, I would have to look at the
23 transcript for the precise names.
24MR JOHNSON: Your Honour, would Mr Devries clarify, the deal
25 obviously on the one hand was the Madam brothel owner of
26 Harem International.
27HIS HONOUR: He has actually said he didn't cut any deal with
28 you, I would be amazed if he did. What he has said on
29 his feet, in my recollection, on 12 December to try and
30 finish the case on that day he did not submit that I
31 should draw an adverse inference against your case if you

2Cressy
1 did not call certain witnesses he referred to on that
2 day.
3MR JOHNSON: Your Honour, I just wish to clarify which of these
4 witnesses I'm not going to be assumed to have hidden
5 negative information from. Francine Irene Miller,
6 brothel Madam (indistinct) interestingly. Julie Johnson,
7 Stella, Kathleen, does it include my long-term girlfriend
8 Elizabeth, Mr Devries? Is she covered or will you be
9 suggesting adverse inferences be drawn because Elizabeth
10 is scared to give evidence? I'm sorry, Mr Devries.
11 We're all scared to give evidence (indistinct).
12MR DEVRIES: I don't intend to answer any questions that
13 Mr Johnson directed to me, Your Honour, but I did refer
14 to four witnesses on p.1012 and I will put Mr Johnson on
15 very fair notice. The only witness that he should have
16 called, but I will be relying on that presumption, is Ms
17 Leanne Kelly.
18HIS HONOUR: Yes, I can understand that.
19MR DEVRIES: I don't believe, but I could be wrong - I don't
20 believe there was any reference to the lady from the
21 brothel, but even if - - -
22HIS HONOUR: I don't think there was.
23MR DEVRIES: Even if there wasn't I am not going to be relying.
24HIS HONOUR: So the only inference you are urging on me is Ms
25 Leanne Kelly who the plaintiff stated he was going to
26 subpoena to court.
27MR DEVRIES: Yes, and he maintained he was going to right up
28 until the time that he didn't - - -
29HIS HONOUR: Yes, I follow that.
30MR JOHNSON: Your Honour, two quick comments on that. Firstly
31 I sent to Mr Devries and Ms Sofroniou on 2 (indistinct) a

2Cressy
1 document where I explained to them - at least if not
2 yourself Your Honour, who I would and wouldn't be calling
3 and the reasons why - (indistinct) I think I described
4 it, and I hope I got it right from my meetings as model
5 litigation, no surprises litigation under the Attorney
6 General's model litigant rules, which are (indistinct)
7 practised within the government industry Your Honour, the
8 government sector. Secondly, let's play the hypothetical
9 that I had called Miss Kelly and said to her, "Ms Kelly
10 you're not to waive any solicitor/client privilege".
11 What answers could - what questions could Miss Leanne
12 Kelly have said? My full name is Leanne Kelly, I am a
13 barrister and solicitor of - - -
14HIS HONOUR: It doesn't matter, the point is you had in your
15 own evidence I think got pretty close to waiving
16 privilege because you had indicated that you just simply
17 relied on the wording of Miss Kelly. Now if you want to
18 explain that the affidavit - the wording is not yours
19 but - - -
20MR JOHNSON: I have earlier Your Honour.
21HIS HONOUR: Yes, you may - - -
22MR JOHNSON: It talks about being in a relationship and living
23 with and partly with. What sort of relationship, were we
24 father and daughter, were we husband and wife, were we
25 brother and sister, were we employer/employee, were we
26 pimp and working girl, were we just friends? At some
27 stage in the relationship with Miss Cressy we were
28 actually friends Your Honour. There's no explanation why
29 we're not still friends Your Honour, no - no explanation
30 in the plaintiff's case why the relationship - whatever
31 it was at that particular point in time, whatever it had

2Cressy
1 morphed into or involved, aggressed or regressed, what
2 happened in April, May or June 2007 to change things so
3 that we're here today? That's interesting. Miss Kelly
4 could not have given answers to any questions that would
5 have violated her duty - solicitor/client privilege.
6 What would be the point in calling Miss Kelly?
7 If Mr Hanlon can't answer questions about the
8 evidence that's before Your Honour - what sequence of
9 that evidence he had in May 2007 when caveats were drawn,
10 and equitable charges executed, how that could be
11 privileged is beyond me Your Honour when the plaintiff's
12 case is closed. How could Miss Kelly answer any
13 questions, other than her name, rank and serial number
14 Your Honour?
15 How can any adverse inferences be drawn against me
16 given that I don't have to present a case - I'm a
17 defendant, because I haven't called - (a) haven't called
18 a witness, and (b) I haven't waived fully legal
19 professional client/solicitor privilege? Your Honour
20 that's funny, that's really funny. Jones v. Dunkel, I've
21 talked about the absent neighbours from Queen Street, and
22 absent neighbours from Dorrington Street, the friends,
23 social acquaintances, the kiddies parties, the - my 40th
24 birthday party, the absence of any - of all of that
25 social and domestic fabric that would cling to a couple
26 who had lived in a domestic relationship for nine years
27 to the extent it would be uncontrovertible, and therefore
28 that list of precedents that Mr Devries handed around in
29 the - I think it was the beginning of the second week of
30 the trial, they're all totally distinguished on the
31 facts. Because there was no issue as to the existence of

2Cressy
1 a husband and wife relationship, de facto or de jure.
2 This fails at the threshold Your Honour.
3HIS HONOUR: Well you've made that point many times.
4MR JOHNSON: Thank you Your Honour. I've made a number of
5 applications. I have applied to amend my counterclaim.
6 I really applied to have all of this adjourned - a
7 directions hearing from Your Honour.
8HIS HONOUR: I'm not going to respond to your constant
9 misstatements Mr Johnson because I'm very concerned to
10 finish this case, and every time I respond you use it as
11 an opportunity to waste more time. Take it as read
12 though that my silence is not my agreement with any
13 misstatement made by you, so that you can't use this
14 transcript for that purpose later.
15 But it's simply a waste of my time to try to correct
16 the chronic and constant and deliberate misstatements by
17 you as to what has occurred and what has not occurred.
18 Now just make further submissions on this case, or sit
19 down please. You've had a very long time in final
20 address. It's important before you sit down that you
21 ensure that you have put to me relevant points. From
22 time to time you have done well, and - when you've wanted
23 to, which proves that when you want to you can address
24 relevant points to me. So make sure before you sit down
25 you've made all the relevant points, but the time has
26 long gone when I'll tolerate any more time wasting by
27 you.
28MR JOHNSON: Your Honour I'm very keen to finish within the
29 next five minutes, I'll move on.
30HIS HONOUR: Well just - - -
31MR JOHNSON: I've mentioned Callinan's principles Your Honour,

2Cressy
1 my slogan show me the evidence plaintiff, show me your
2 rights that you had to be vindicated by your legal
3 representatives to justify three rounds of caveats, issue
4 of proceedings, two sets of interlocutory relief
5 applications that were upheld in the Practice Court. One
6 after a one day plus hearing in a Practice Court.
7 Every litigation the way I've spoken is just -
8 Practice Court hearing do more than two hours,
9 incredible. I would say Your Honour that issuing all of
10 those actions with - and in doing so failing first to
11 identify or quantify the rights to be vindicated by
12 reference to a body of evidence, that's just as bad as
13 issuing proceedings for a known ulterior purpose.
14 If there is no - what's the opposite of ulterior, if
15 there is no known interior purpose ipso facto there must
16 be a ulterior purpose. This - let's issue this caveats,
17 let's issue this writ, let's get the interlocutory relief
18 and hope we don't get to a horrible problem at trial
19 where we don't have a case, and our client is up for
20 costs. Because she's got no moneys to pay costs when
21 interlocutory relief is (indistinct) we're given. Rule
22 6920 - sorry, 63.17, let alone Callinan's case and the
23 other cases, some of which Your Honour kindly mentioned
24 in his judgment 48 hours ago. Reference to Callinan's
25 case and if I may rely on that unreported decision of two
26 days ago, a reference to Butler, Simmonds, Crowley and
27 Galvin at p.12 of that unreported judgment of Your
28 Honour's. I'm sorry, but the failure to identify and
29 quantify the rights to be vindicated, that's tantamount
30 to knowing that they're issuing with no rights to be
31 vindicated and it's ulterior purposes Your Honour.

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1 Let's issue and hope we find some evidence to
2 justify it. How do we fix that one now that we're in
3 trial and the plaintiff doesn't have a case, doesn't have
4 evidence, doesn't have credibility in terms of the viva
5 voce. Can't explain why it's purely viva voce, dingo
6 didn't raid the tax office, Your Honour. It comes to the
7 next point, champerty. Now it used to be a crime. It
8 used to be illegal in this jurisdiction. All of this is
9 a question of degrees. Where you've got failures in
10 access to the legal system, failure in the legal aid
11 delivery, failure in the pro bono, law firms like Sutton
12 Lawyers Pty Ltd that model themselves on the principles
13 of the Legal Aid clinic. The first ever Legal Aid clinic
14 established by John Cooke in accordance with the
15 principles of his vindication of the Professors and
16 Profession of Law which I think was 1648 issued pamphlet,
17 Graies-Inne, G-r-a-i-e-s I-n-n-e, lovely language and all
18 the f's and s's, consonants switches around as they did
19 on those days. That's sorts of law firms are few and far
20 between. Civil liberties organisations down have firms.
21MR DEVRIES: This is totally irrelevant.
22MR JOHNSON: Your Honour, the fact that these proceedings have
23 been litigation funded carried 99 per cent or more by the
24 lawyers for the plaintiff. She's only put in the first
25 $3000. That, I say, goes to the improper purpose because
26 that's the reason that champerty was a crime because the
27 lawyers would then have the improper purposes of looking
28 at a return on their own investment, rather than the
29 interests of their client. So I say, when it comes to
30 look at my costs and damages, which can only be paid to
31 me by Mr Devries and Mr Turnbull's firm, because Your

2Cressy
1 Honour has exculpated David William Hanlon & Hardwood
2 Andrews for their part in this mess. When Your Honour
3 comes to assessing my costs and damages against the
4 plaintiff's legal representatives, under Callinan's
5 principles and the relevant rules of this Supreme Court,
6 I say do please take into account their aggravating
7 factor because under the law as it was maybe a decade
8 ago, I'm sorry these legal representatives they would
9 have committed a crime.
10HIS HONOUR: You're getting so far from a relevant issue
11 between yourself and Ms Cressy that even the first year
12 law student could see it, let alone a solicitor of 20
13 years core. This is just deliberate time wasting yet
14 again. Now, address relevant issues - relevant to the
15 claim by Ms Cressy against you or relevant to the
16 counterclaim you have in this court, in this case against
17 her or sit down.
18MR JOHNSON: Your Honour, I have gone over the time, I just
19 need a couple more minutes. Your Honour, there are three
20 things clearly important. The lack of evidence - - -
21HIS HONOUR: You're wasting an opportunity.
22MR JOHNSON: - - - the lack of credibility.
23HIS HONOUR: You've said that.
24MR JOHNSON: The defective process which again goes to
25 credibility and my right to aggravated damages. Maximum
26 damages and costs from her legal representatives, for
27 something that a decade ago would've been a crime of
28 champerty. The no discovery. There should have been.
29 Every one of those Exhibits A to O should've been
30 discovered in my affidavit of documents, Your Honour.
31 The anti discovery, aggravated burglary strategy of the

2Cressy
1 plaintiff. The lack of interrogatories. The pleadings
2 were not settled. And I say, Your Honour, look at p.195
3 of the transcript please, Line 22, 4 December 2008, where
4 there was - Mr Devries talked about the amendment of the
5 statement of claim of the plaintiff. There was the
6 grossly culpable two day trial estimate. Page 1 of the
7 defence. I denied everything except I couldn't admit or
8 deny whether she'd lived in the jurisdiction for two
9 years, I simply did not know. What clearer signal that
10 the defendant says, you've got no case. I've got nothing
11 to answer. Everything is denied. That's a pretty strong
12 message Your Honour. Denied communication of the trial
13 date to the defendant. I simply wasn't told. I wasn't
14 told of the hearing, where it was set down, I wasn't told
15 of the two day trial estimate - - -
16HIS HONOUR: Mr Johnson, this is got absolutely nothing to do
17 with the issues I have to decide. You know it. You're
18 just using your privilege position as appearing on your
19 own behalf in this case as a soapbox.
20MR JOHNSON: Your Honour - - -
21HIS HONOUR: Now address relevant issues.
22MR JOHNSON: - - - my point is not just the champerty point,
23 but the defect in the process. The practice court
24 applications which Mr Justice Whelan said to the previous
25 legal team, the ones who were exculpated 48 hours ago,
26 "Don't do it boys. Go through normal court process.
27 Don't abuse this practice court jurisdiction this way."
28 It wasn't heeded. The lack of mental capacity
29 application - - -
30HIS HONOUR: You've addressed this already Mr Johnson.
31MR JOHNSON: Thank you Your Honour, thank you Your Honour.

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1HIS HONOUR: You are deliberately wasting time.
2MR JOHNSON: The no hearing or the limited hearing however Your
3 Honour might describe it, I make application for
4 consolidation of the proceedings.
5HIS HONOUR: Mr Johnson I have - - -
6MR JOHNSON: My evidence - - -
7HIS HONOUR: - - - I have, contrary to my desire, heard that
8 application - just a moment.
9MR JOHNSON: Forgive me Your Honour.
10HIS HONOUR: I have heard that application time and time again,
11 self evidently it would be an impossibility to join the
12 two proceedings in together for many reasons, which you
13 as a lawyer could quite clearly discern. There are
14 different parties, there is a counterclaim by you against
15 about ten different parties, including the Legal Services
16 Commissioner, Mr Hulls, the Attorney General, and many
17 other people.
18 Self evidently the two proceedings could not be put
19 together. As I understand it I don't know the
20 proceedings have even closed in the other proceeding.
21 This case was set down for trial, you've full well known
22 that, and I have heard this case. You have just simply
23 deliberately defied every ruling I've made to that affect
24 for your own purposes. Now address this case or sit
25 down.
26MR JOHNSON: Your Honour I am - - -
27HIS HONOUR: That's a direction to you now. It's a binding,
28 legal direction.
29MR JOHNSON: Your Honour - - -
30HIS HONOUR: Address the points in this case, or you will sit
31 down.

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1MR JOHNSON: Your Honour I am pleased to report that you have
2 indeed lived to see the day when I am speechless. I have
3 completed my submissions, and the only further thing I
4 want to do is to ask if I may be excused - if I may go
5 home?
6HIS HONOUR: Well I can't force you to stay, but Mr - but what
7 I'd better advise you is this, Mr Devries will be making
8 his submissions. The hour's late, and it's cruel - - -
9MR DEVRIES: I wish to make about five or ten minute
10 submissions for one very obvious reason Your Honour, that
11 if I don't start we'll have an application on Monday from
12 Mr Johnson to restart.
13HIS HONOUR: Yes, I was saying it's a good - I follow that,
14 well I think - - -
15MR JOHNSON: May I be excused Your Honour?
16HIS HONOUR: Now Mr Johnson - - -
17MR JOHNSON: I have no case to answer, I have no need to be
18 here. There's nothing Mr Devries has to say I need to
19 listen to.
20HIS HONOUR: Well I can - I have no power to force you to stay,
21 but before you leave can I say this to you
22That it is - that I would have thought it was most important
23 you listen carefully to what Mr Devries has to say. I
24 indicated to you at the beginning of these submissions at
25 your request that particularly given the fact that you
26 appear for yourself, I would be sympathetic to an
27 application by you to respond to any matters which took
28 you by surprise and to which you have a legitimate
29 response after Mr Devries has completed. If you aren't
30 here, obviously you won't know what he said. Now, it's a
31 matter for you. I can't force you to stay. It would be

2Cressy
1 a discourtesy to me for you to leave, but I can cope with
2 discourtesies. More importantly it would be a
3 discourtesy to the legal system, but if that is the way
4 you wish to conduct yourself as a barrister and solicitor
5 of this court I'm not going to force you to stay, it's
6 matter for you. All right?
7MR JOHNSON: Your Honour, I do not wish to appear discourteous,
8 that is why I am asking permission to leave.
9HIS HONOUR: It is a matter for you.
10MR JOHNSON: I have no case to answer, I have no need to hear
11 anything that Mr Devries wants to say. I have no right
12 or need for reply. I can read the transcript in a day or
13 two. I have no need to be in court - - -
14HIS HONOUR: I will not re-fix the case so you can respond
15 after you have read the transcript.
16MR JOHNSON: I see no need for that, Your Honour.
17HIS HONOUR: Be assured of that.
18MR JOHNSON: I am confident in Your Honour's ethics.
19HIS HONOUR: If you are not going to be here I will rise once
20 Mr Devries has finished his final address and I will not
21 re-open the case.
22MR JOHNSON: I am happy to hear that, Your Honour, and I do
23 hope Mr Devries is quicker in submissions than I am, but
24 I do not want to be regarded as discourteous if I leave
25 and go home right now. I have no need to be here. I
26 never needed to be here, Your Honour.
27HIS HONOUR: It's a matter for you.
28MR JOHNSON: I never had a case to answer.
29HIS HONOUR: It's a matter for you, Mr Johnson, you can come or
30 go whichever you prefer. But I have told you - - -
31MR JOHNSON: Thank you for the courtesy of excusing me, Your

2Cressy
1 Honour.
2HIS HONOUR: But I have told you in your interests you should
3 stay. Mr Devries.
4MR JOHNSON: May I be allowed a minute or two to pack up before
5 Mr - - -
6MR DEVRIES: I would like to start - - -
7HIS HONOUR: No, Mr Johnson, you will not disrupt Mr Devries.
8 Do you wish to go for 10 minutes?
9MR DEVRIES: I will go until four o'clock Your Honour.
10HIS HONOUR: I can understand the wisdom in you doing that,
11 would you do that, thank you.
12MR DEVRIES: Your Honour, whilst Mr Johnson is still here let
13 me make the observation that it is highly inappropriate
14 for him to have forced us to listen to him making
15 speeches, making wild allegations against myself and my
16 instructors (indistinct) and then not have the courage to
17 sit and listen to the responses to that. It is not only
18 a discourtesy it just proves beyond any doubt at all that
19 his actions have been purely and simply to oppress and
20 vex my client, my instructor and myself. My Johnson
21 complained to Your Honour that certain things happened
22 after he left the Federal Magistrates Court jurisdiction
23 and they happened because he left and he didn't give
24 himself the opportunity to answer things. He will make
25 the same complaint at a later stage in these proceedings.
26 Things happened when I wasn't there, Mr Devries said
27 things that I didn't have the opportunity to answer.
28 Well, he is creating that situation, Your Honour, and in
29 my submission it is not a discourtesy to the court, with
30 the greatest of respect, it is a contempt of the process.
31 Your Honour, whilst Mr Johnson is here I would submit

2Cressy
1 that it is indisputable - - -
2HIS HONOUR: I should point out for the purposes of the
3 transcript while Mr Devries has been making submissions
4 to me, Mr Johnson has been busy packing his bags and is
5 about to leave.
6MR DEVRIES: Thank you, if Your Honour pleases.
7HIS HONOUR: Mr Devries. I now record for the transcript that
8 Mr Johnson is leaving the court. Mr Devries.
9MR DEVRIES: May it please Your Honour.
10MS CRESSY: Excuse me, Your Honour, I'm sorry but I'm really
11 frightened (indistinct) will make a phone call to the
12 school.
13MR DEVRIES: Can my client leave to make that phone call, she's
14 concerned that he might be going to the school.
15HIS HONOUR: I follow, yes certainly. It will not be a
16 discourtesy if Ms Cressy leaves the court, she is here
17 represented by counsel and she should feel free to do so.
18MR DEVRIES: Sorry, Your Honour, I think there is an urgency
19 about it.
20HIS HONOUR: I understand that.
21MR DEVRIES: I will just go for two minutes.
22HIS HONOUR: Do you wish me to stand it down for a moment and
23 you attend to that and I will come back once you have got
24 her settled? I think that would be a good idea.
25MR DEVRIES: If Your Honour - - -
26HIS HONOUR: I will just be out the back. I know you want to
27 land a punch tonight and I will be back when you tell Mr
28 Richards.
29MR DEVRIES: May it please Your Honour. Thank you.
30 (Short Adjournment.)
31MR DEVRIES: Thank you for that, Your Honour.

2Cressy
1HIS HONOUR: Thanks, Mr Devries.
2MR DEVRIES: My client has made arrangements to ensure the
3 safety of the children. Your Honour, these submissions
4 and addresses are made against the background and in the
5 context of the following, one, that it is indisputable
6 that Mr Johnson is a highly intelligent person. With
7 respect, Your Honour has made that observation a number
8 of times in the course of this matter and, with the
9 greatest of respect, it is something with which I fully
10 agree. Mr Johnson is a highly educated person, at the
11 very least he has the qualifications and been admitted to
12 practise as a barrister and solicitor of this honourable
13 court, as the admission was then referred to. I think
14 we're now admitted as something quite different, Your
15 Honour. Mr Johnson is without a shred of a doubt a
16 highly articulate man, he's without a shred of a doubt a
17 widely read man and enviably so. Mr Johnson has
18 practised as a solicitor for nigh on 20 years. He tells
19 us repeatedly that he has an unblemished record, he tells
20 us repeatedly that he's done important work for large and
21 important clients, he tells us he's been on many Law
22 Institute of Victoria committees, written many learned
23 articles to the Law Institute Journal and has delivered
24 many learned papers. He has proven to be an excellent
25 advocate and to be able to turn his mind clearly and
26 effectively to the issues to which he chooses to turn his
27 mind.
28 Thus, Your Honour, I submit that each and every
29 action of Mr Johnson in this matter has been deliberate,
30 calculated, thought through by him and the consequences
31 very carefully considered by him. This is what ought to

2Cressy
1 be expected from an intelligent, appropriately educated
2 and experienced lawyer. Mr Johnson throughout this
3 matter has done everything within his not insubstantial
4 powers to ensure that the issues before Your Honour are
5 not addressed. I rhetorically ask the question, what is
6 it that he's seeking to hide that he goes to such
7 extraordinary lengths to avoid being addressed?
8 What Mr Johnson has done in this matter is to erect
9 a massive smoke screen around the issues and to log
10 highly powered grenades over the smokescreen. He's done
11 his best to oppress and vex my client, my instructor and
12 myself and he has succeeded hugely. It has been an
13 enormous distraction and Mr Johnson quite rightly today
14 referred to the fact that Your Honour had to jog me about
15 the fact that I hadn't covered all of the properties and
16 that was because I have been dealing with one of his hand
17 grenades and that was the - - -
18HIS HONOUR: The counterclaim.
19MR DEVRIES: - - - counterclaim in the other matter.
20HIS HONOUR: If I could say this, Mr Devries, I have been
21 conscious of the stress and pressure to which you have
22 been subjected because of the conduct of Mr Johnson
23 throughout this case, and your solicitor and you have
24 both, I consider, conducted yourselves admirably and
25 remarkably well considering the obvious pressures you
26 have both been under.
27MR DEVRIES: I'm indebted to Your Honour for saying that, it's
28 very, very encouraging, but it happened again today or
29 attempted to do that today, Your Honour.
30HIS HONOUR: Yes, I noticed that.
31MR DEVRIES: Waving a document in front of me. He referred to,

2Cressy
1 in his address he referred to a letter that he'd sent to
2 my instructors and I'll hand that - sorry, to my
3 instructors and Ms Sofroniou's instructors and that was
4 very much in the same vein and it did alert me to the
5 fact that that's what he's done.
6 Now, if I can just very briefly list the actions
7 he's taken then, if I can call it an item, that he's
8 filibustered throughout this matter, he's speechafied on
9 irrelevant issues, he's made extravagant claims without
10 backing up without any evidence whatsoever, he's
11 constantly tried to divert Your Honour's attention from
12 this matter to his other matter and I thought he had said
13 in transcript on Wednesday, but I must confess I haven't
14 been able to find the reference to it, therefore, it
15 might have been the day before, to that being the more
16 important matter, which suggests some of his actions here
17 have had an ulterior motive and he certainly has tried to
18 litigate that other matter.
19 With the exception of Ms Newcombe, who I think he
20 tried to have as a witness, every other witness that he's
21 tried to call but been ruled against on, is a defendant
22 in his other matter. Indeed, every defendant in that
23 matter has either been sought by him to be called as a
24 witness or has already given evidence, such as my client
25 and Dr List, with the exception of the plaintiff
26 mortgagee in that matter, the Attorney-General and the
27 Minister for Human Services.
28 I'm not sure he pressed the calling of Federal
29 Magistrate O'Dwyer but he certainly foreshadowed that on
30 many occasions and in parenthesis I would submit that the
31 timing of his attack on Federal Magistrate O'Dwyer was

2Cressy
1 similar to the timing of his attacks on all of the other
2 persons involved in this matter and that was to try and
3 get a message across to Federal Magistrate O'Dwyer before
4 he handed down his decision, and with great respect, Your
5 Honour, I submit that he tried to do the same thing in
6 this court.
7 It's inappropriate for anyone but particularly a
8 legal practitioner not only to ignore rulings from the
9 court, as much as sometimes we'd love to and we don't
10 like, I've got to say, Your Honour, having rulings made
11 against us but that's something we have to live with.
12 Just as we don't like our football team losing but we've
13 got to live with that as well.
14HIS HONOUR: We have to live with both of them, Mr Devries.
15MR DEVRIES: But, Your Honour, to say to a judge of this
16 honourable court, "I'm going to appeal that decision and
17 if you do certain things I'm going to appeal that, and if
18 Your Honour would - I think if you stand this matter down
19 so I can get the appeal so that when I succeed in the
20 appeal you can admit further evidence", is contemptible
21 behaviour and a contempt of this court. And also I
22 respectfully submit an attempt to try and influence Your
23 Honour's decision making in this. So, Your Honour, if I
24 could say this with great respect is sharing the pain
25 that everyone else that's been involved in matters
26 involving Mr Johnson has shared.
27HIS HONOUR: It has not been an easy trial, Mr Devries.
28MR DEVRIES: No. It's matters like this where I'm pleased that
29 I'm at the Bar and not on the Bench and have no prospects
30 of being on the Bench, because I certainly couldn't have
31 coped with what's gone on.

2Cressy
1HIS HONOUR: I think you've been in a pretty hot seat yourself
2 down there with Mr Johnson against you, but that's by the
3 bye. The concern I really have had in this case is that
4 you're perfectly right in describing the qualities of
5 Mr Johnson. He doesn't come to this court as the
6 ordinary litigant in person to whom this court extends
7 enormous latitude, and I have extended excessive latitude
8 to Mr Johnson in this case. But he's very intelligent.
9 In fact I wouldn't be surprised if that's a gross
10 understatement. He's got a law degree. He has been not
11 just in practice but he's as you say acted for large and
12 important clients, and he was – I think he described
13 himself as special counsel to a very large national law
14 firm.
15 When he wanted to in the case he actually focused
16 well on issues. Some of his arguments were well made.
17 Whether they're right or wrong are well made. His
18 evidence-in-chief when he was relevant was orderly and
19 chronological. All that just seems to illustrate to me
20 that really when he wanted to be he could do it, and
21 therefore when he was diverting chronically into
22 irrelevant issues as I said to him when he was
23 deliberately disobeying rulings of mine, this wasn't
24 simply of a fractious litigant person who doesn't
25 understand the process.
26 It was deliberate and calculated and it was conduct
27 I must say - you and I have both been in the law a long
28 time and have a respect for the law because it achieves a
29 worthwhile function in society. I myself found very
30 disturbing that any person who's had any experience in
31 this law, would violate the system in the way he's

2Cressy
1
2 tried to.
3MR DEVRIES: Particularly as he's not a youngster.
4HIS HONOUR: No.
5MR DEVRIES: If he was first year out and trying to challenge
6 the system as a lot of people do
7And want to take on the cock in the hen yard. You can
8 understand that to some extent. Although it's self
9 defeating. But after 20 years. Your Honour - - -
10HIS HONOUR: And after 20 years I must say this, that it does
11 make my job more difficult from this point of view that I
12 have to settle that one side. I've got to stand between
13 the parties, I will and do, and try to elicit, probably
14 doing more than justice to him, the best parts of his
15 case. That makes it even more difficult to ensure that I
16 do justice not just to your client but to himself,
17 despite his best endeavours to veer me away from that.
18 It's not an easy task.
19MR DEVRIES: Yes, he's taken an all or nothing strategy. Your
20 Honour, I just wondered whether if I got to the – just to
21 assist Your Honour, if Your Honour's going to be turning
22 your mind to this over the weekend, if I - - -
23HIS HONOUR: Yes, I will.
24MR DEVRIES: - - - told you where I was heading for - - -
25HIS HONOUR: Yes. If you could just briefly do that and then I
26 think we'll call it a day.
27MR DEVRIES: Yes, only for a minute or two, Your Honour.
28HIS HONOUR: Yes.
29MR DEVRIES: Your Honour, what I'll be submitting to you is
30 that there was clearly a relationship and I'll be using
31 the prayer that he's used in that affidavit which is

2Cressy
1 Exhibit F. And that I'll be placing very heavy reliance
2 upon Kenyon v. Akroyd which I'll be submitting to Your
3 Honour almost goes to the point of saying we have a
4 traditional relationship of a breadwinner and a
5 homemaker, particularly where there's a child that it's
6 almost a 50/50 starting point.
7HIS HONOUR: Yes.
8MR DEVRIES: But what I'll be submitting to Your Honour and
9 I'll be conceding that we haven't been able to put before
10 Your Honour precise valuations of the pool. But we do
11 know is that Mr Johnson already has, and I'm relying on
12 his evidence principally, $70,000 of superannuation, the
13 proceeds of sale of Lisa Court, Gibson Street, 7A
14 Endeavour Drive, the proceeds of the refinancing of
15 Gibson Street which went into 7A Endeavour Drive, which
16 he says was $98,217, motor vehicles still in his
17 possession, $10,000 from the sale of a motor vehicle, the
18 rebate that he got from Gibson Street, which he put at
19 $11,000 and the retained rent which he put at 7000.
20 He keeps that and my client gets the net proceeds of
21 sale of 166 Queen Street which he seems to agree is
22 $48,000 and that all of his right, title and interest in
23 Hawkhurst Street, subject to the mortgage be transferred
24 to my client.
25HIS HONOUR: The difficulty is I just don't know what the
26 equity in all these properties are.
27It may be a massive equity in Hawkhurst Street and little in
28 the other properties, or it may be the other way around,
29 it may be that that type of disposition would do an
30 injustice to your side if I found that there was a
31 relationship and that as a result of contributions made

2Cressy
1 as defined in the Act there ought to be a redistribution
2 of it. That's why I've been concerned because the
3 alternative if I was to find a relationship with
4 contributions would simply be to award your client a
5 percentage in all the assets. I dislike doing that
6 because it leaves the two parties fused together, which
7 is undesirable.
8MR DEVRIES: Also, Your Honour, the downside of that from my
9 client's point of view is that a lot of these items or
10 sums that the defendant has got since separation are
11 probably unable to be located or valued or have been
12 devalued by his actions.
13HIS HONOUR: Yes.
14MR DEVRIES: My client is prepared to take the risk - sorry,
15 there's also his other business that he mentioned for the
16 first time today. She is prepared to (indistinct) that
17 all these other properties may or may not have a value.
18 She is prepared to work on the basis that a worst case
19 scenario from her is that they all have negligible or no
20 value.
21HIS HONOUR: You will need to persuade me that the formula you
22 have just really described to me would equate in broad
23 terms to what you say would be a reasonable division of
24 the properties should you succeed in showing there is a
25 domestic relationship. Now, it seems to me this is a
26 classic case where a judge would ordinarily come to a
27 conclusion on a global basis. Now, he might then
28 translate that into an order to divide specific
29 properties. I would have thought this was a case where
30 if I find there was a domestic relationship I could only
31 find in terms of contributions on a global basis, and I

2Cressy
1 would then need to convert that, if you wish me to make
2 orders on specific properties, I would need some comfort
3 that that doesn't either unduly enrich or impoverish your
4 client in terms of the proportion I ordered.
5MR DEVRIES: It probably on the face of it I'd be arguing would
6 be less than my client would be ordinarily entitled to
7 but because of particular circumstances of this
8 case - - -
9HIS HONOUR: It's getting late but I will just put you on fair
10 warning, Mr Devries, this is a difficult argument for you
11 to make because I can't do this by guess work so that you
12 may be able to find in the materials - and I spent some
13 of the time after this case adjourned trying to sift
14 through the materials to try and educate myself in that
15 way and derive evidence which could, if I do find in
16 favour of your client, enable me to do what I think is
17 desirable for the parties, but I couldn’t see it and I
18 would need some persuasion by you.
19MR DEVRIES: I appreciate that, Your Honour, and unfortunately
20 it is not a situation I had anticipated.
21HIS HONOUR: No, I understand that.
22MR DEVRIES: I'm trying to work a way around it.
23HIS HONOUR: I follow that but in case you thought I was going
24 to be in ready agreement with you. I will need
25 persuasion on that issue.
26MR DEVRIES: I'm also mindful in the absence of Mr Johnson
27 during the course of me making my address I will have to
28 be particularly careful not to make any mistakes or get
29 anything wrong.
30HIS HONOUR: I follow that and it just makes it more difficult
31 but there we are. Thank you for that.

2Cressy
1MR DEVRIES: I am sorry to keep you late, Your Honour.
2HIS HONOUR: That's quite all right, Mr Devries, thank you for
3 commencing it. 10.30 on Monday.
4MR DEVRIES: Thank you, Your Honour.
5ADJOURNED UNTIL MONDAY 16 FEBRUARY 2009

2Cressy

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1MR DEVRIES: Your Honour, before Mr Johnson resumes, I've gone

2 through the transcript of my client's evidence a number

3 of times today whilst he was on his feet and over lunch.

4HIS HONOUR: Yes.

5MR DEVRIES: I cannot find a single reference to Mr Cockram and

6 her evidence. If there is a reference, I'd be greatly

7 appreciative of finding out. Otherwise, the question he

8 says he asked her is impossible.

9HIS HONOUR: Yes I follow that.

11 this matter is going there's a fair chance that it'll be

12 going on the 19th of this month. If that's the case,

13 both Mr Johnson and I will have to beg a break from

14 Your Honour, because we'll be appearing in another part

16HIS HONOUR: Right.

17MR DEVRIES: On an application in the counterclaim in the other

19HIS HONOUR: I follow.

21 on that day. I don't have a - - -

22HIS HONOUR: The 19th is - - -

23MR DEVRIES: Next Thursday.

24HIS HONOUR: Next Thursday. This case will be finished before

25 then, Mr Devries which is probably a very brave

26 prediction, but I hear what you say.

27MR DEVRIES: Yes.

28HIS HONOUR: But we really – yes this case has to come

30MR DEVRIES: I believe it'll be in the Practice Court.

31HIS HONOUR: Thank you.

1.LL:DC 13/02/09 FTR:23AA 152 DISCUSSION

2HIS HONOUR: Yes, I understand. Thanks for that information,

4MR DEVRIES: Thanks Your Honour.

5HIS HONOUR: Mr Johnson.

6MR JOHNSON: Thank you, Your Honour. I'm indebted to

7 Mr Devries for doing that searching of the transcript. I

8 couldn't find a reference to my putting that question

10HIS HONOUR: You couldn't either.

11MR JOHNSON: I couldn't either.

13 the question to Mr Cockram.

14MR JOHNSON: Yes.

15HIS HONOUR: Whether he knew Ms Cressy, and I think he said,

16 his response was, "I didn't know anyone in the court", or

17 words to the effect.

18MR JOHNSON: I don't really remember, if that's all right,

19 Your Honour. In fairness to myself, I am an embryonic

20 advocate, that would have been my second or third day,

21 probably my – probably third day I think. I think it was

22 the Thursday morning. I'd been in considerable pain. I

23 had to go to the hospital on the Tuesday morning. I

24 hadn't slept a wink the Monday night, the Tuesday night,

25 or the Wednesday night with chronic back pain. I

26 certainly wasn't at my best.

27 I didn't mean to violate the rule and I don't know

28 if I did that, but I'm putting it to Ms Cressy, I believe

29 the evidence of myself and Ms Locke still stands, even

30 though I didn't put a direct question to Ms Cressy on it.

31 Maybe it's of benefit for Ms Cressy in hindsight that I

1.LL:DC 13/02/09 FTR:23AA 153 DISCUSSION

2 denied any knowledge of Mr Cockram, as Mr Cockram - - -

3HIS HONOUR: You can't speculate Mr Johnson. Let's rather move

4 on to what evidence was given.

5MR JOHNSON: Yes.

6HIS HONOUR: And - - -

7MR JOHNSON: But I'm certainly not disputing what Mr Devries

8 says, that there was no reference to me questioning

9 Ms Cressy in cross-examination, Your Honour.