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1MR DEVRIES: That matter's are still preceding Your Honour.

2HIS HONOUR: Yes, thanks Mr Devries.

3MR DEVRIES: Your Honour given that we've started early it may

4 be that Mr Johnson may turn up at ten thirty although the

5 signs on Friday would suggest otherwise.

6HIS HONOUR: Yes, you think it's more prudent that I wait, I

7 notice that I have come in a bit quick off the mark.

8MR DEVRIES: I think there's a difference between the clock on

9 the other side of that door and the clock on this side of

10 the door Your Honour.


12MR DEVRIES: You've caught us out a couple of times.

13HIS HONOUR: Yes, I'm sorry about that. Well what I think I'll

14 do is discretion is the better part of valour, I'll set

15 my clock by the court clock and I'll just go outside for

16 two minutes. I think it is better that we don't commence

17 until ten thirty, at the listed time.

18MR DEVRIES: I think in view of the particular circumstance and

19 perhaps if that stage if he's not here if he could be

20 called.

21HIS HONOUR: If Mr Richards could call him I'll do that.

22 Thanks Mr Devries, I guess (indistinct).

23MR DEVRIES: Sorry about this Your Honour.

24HIS HONOUR: No, that's a good idea.

25 (Short adjournment.)

26MR DEVRIES: Perhaps if Mr Johnson was to be called,

27 Your Honour.

28HIS HONOUR: Yes, Mr Richards would you mind? Thanks. No

29 appearance, Mr Richards? Thank you. Now, for the

30 purposes of the transcript I record that Mr Johnson is

31 not in court. Mr Richards, my associate, has three times

1.LL:CW 16/02/2009 FTR:2B 223 DISCUSSION

1 called his full name out in the corridor and aloud – the

2 voice of Mr Richards – and Mr Johnson has still not

3 appeared. Now, I should say, Mr Devries, that my

4 tipstaff has made me aware of some SMS messages received

5 from Mr Johnson out of court and perhaps I'll read them

6 into the transcript. You may be seated if you like.

7 He received one at 16.53 on Friday the 13th,

8 "Dear Mr Richards, please inform His Honour that I had

9 hoped to close my case just before or just after lunch so

10 that Mr Devries might finish today. (2) That I was

11 taught well-done is timely done and never to compromise

12 on quality to save time; rushing is a malaise of the

13 middling sorts. Please acknowledge this message. Best

14 weekend wishes. James Johnson." and at 16.55 Mr Richards

15 replied with a receipt acknowledged. In response,

16 Mr Richards received another SMS at 5.02 p.m. "Thanks

17 Steve, you're a good man. Cheers. If or when His Honour

18 requires me again, would you text or call me. Last week

19 Thursday was too close. A really needed miss for this

20 heavily attacked man. Please acknowledge. Cheers,

21 James." Then at 5.15 Mr Johnson sent to my tipstaff a

22 further message, "Steve, please apologise to Amanda on

23 Monday for me because she has to assist His Honour to

24 completely rewrite his draft judgment in this case.

25 Cheers. James Johnson."

26 I should say that I regard all three SMS messages

27 as grossly improper. Mr Johnson is a solicitor of 20

28 years standing. He knows it is quite inappropriate for

29 any party to communicate in those terms to a member of the

30 staff of a Judge outside court, or indeed even inside

31 court. Whatever was sought to be conveyed by those

1.LL:CW 16/02/2009 FTR:2B 224 DISCUSSION

1 messages, I entirely ignore.

2MR DEVRIES: If Your Honour pleases.

3HIS HONOUR: I thought it's best to place them on the

4 transcript Mr Devries and also to record the fact that I

5 entirely disapprove of Mr Johnson's conduct in doing what

6 he did.

7MR DEVRIES: If Your Honour pleases. Your Honour, I wish to

8 draw your attention to a couple of – what I believe are

9 errors in the transcript of Friday.


11MR DEVRIES: I say this with respect to the transcript writers.

12 They've had a very difficult job and whilst there's some

13 other possible mistakes that might have crept into the

14 transcript, they're probably self-evident. But, given

15 what's going to happen with – what I suspect is going to

16 happen with this transcript, perhaps a couple of matters

17 should corrected, Your Honour. One of them is against my

18 personal interest but the first one, Your Honour, is on

19 p.1603 at Line 5.


21MR DEVRIES: That was actually Mr Johnson who said, "I would

22 not have given that evidence because I did not sign it."

23HIS HONOUR: Yes, thank you.

24MR DEVRIES: I'll be coming back to that a bit later on as one

25 of the - - -

26HIS HONOUR: So, if the speaker at Line 5, p.1603 of the

27 transcript could be amended by deleting Mr Devries and

28 substituting therefore Mr Johnson. Yes.

29MR DEVRIES: I'll be coming back to that later on as one of the

30 many misrepresentations given or made by Mr Johnson

31 deliberately in his address.

1.LL:CW 16/02/2009 FTR:2B 225 DISCUSSION

1HIS HONOUR: What was he referring to there?


3HIS HONOUR: Ah, Yes, I follow, yes. That's exhibit - - -

4MR DEVRIES: Exhibit J.

5HIS HONOUR: Yes, Exhibit J.

6MR DEVRIES: I'll take us to the transcript reference where he

7 gave evidence quite different to that.


9MR DEVRIES: The other matter, Your Honour, is at p.1686,

10 Line 17. This is the comment that I quite inappropriately

11 and improperly made across the Bar table to Mr Johnson.

12 What I in fact said was – or accused him was, state was,

13 "You stop because - - -


15MR DEVRIES: - - - you stole them.

16HIS HONOUR: Yes, so Line 17 should be, "You stole them."

17MR DEVRIES: Or, "because you stole them."

18HIS HONOUR: "Because you stole them." Yes, I recall that

19 interjection by you and certainly you would not have

20 spoken in the terms that's recorded in the transcript

21 either.

22MR DEVRIES: What I said, I shouldn't have said anyway but I

23 certainly didn't say "the dingo".

24HIS HONOUR: No, and I don't think you would have and the - and

25 I would not want to hear member of counsel referring to

26 such an illusion. Sixteen – and so the transcript at

27 p.1686, Line 17 – the words "the dingo" will be deleted

28 and the word will be substituted "Because you stole them."

29 Is that right?

30MR DEVRIES: Yes, Your Honour.

31HIS HONOUR: "Because you stole them." Thanks.

1.LL:CW 16/02/2009 FTR:2B 226 DISCUSSION

1 I say again, Your Honour, that I acknowledge that it was

2 inappropriate and I apologise to this honourable court.

3HIS HONOUR: I am sure you have and I accept your apology.

4MR DEVRIES: Your Honour, on Friday I was listing Mr Johnson's

5 attributes, positive attributes.


7MR DEVRIES: The major one that I omitted to state is that he

8 is constant - when he makes a point he is likely to

9 constantly reiterate that point. Both in that sense and

10 in the sense that when he took issue with Your Honour's

11 rulings he was constant in his attitude to Your Honour's

12 rulings and his actions in respect to those rulings.

13 In the context of my reliance on what Mr Johnson

14 submitting to Your Honour being deliberate and his

15 various actions and his evidence in this matter being

16 deliberate, I would also draw attention, Your Honour, to

17 Mr Johnson stressing to Your Honour his oath upon being

18 admitted to practice, as it was then called, as a

19 barrister and solicitor of this honourable court. He

20 referred to it on one occasion when he went back into the

21 witness box to continue to give evidence, and he also

22 referred to it on Friday in his submissions at p.1693

23 line 23 and 1694 line 12.

24 He would want Your Honour to believe that he treated

25 everything that he said from the Bar table as having the

26 quality of being truthful because he had given that oath,

27 and also in the context too that he had stressed that he

28 was a barrister and solicitor and had been for 19 years.

29 In a very back door method he tried twice to play the

30 card by denying that he was playing the card of

31 practitioner versus prostitute.

1.LL:CW 16/02/2009 FTR:2B 227 DISCUSSION

1 I might say, Your Honour, in that context that on

2 the evidence that was before Your Honour he had

3 registered as a prostitute and one could use the line, I

4 have been dying to do this right through all of these

5 proceedings, in his case he is a solicitor or was a

6 solicitor in both senses of that term. But whilst I say

7 that a little bit in jest, the fact that he had

8 registered to work as a prostitute and held himself out

9 as a prostitute puts lie to the criticism that he makes

10 of my client in that occupation.

11 But there is a far more important aspect, that he

12 constantly complains about my client working more as a

13 prostitute for longer hours than he says that she held

14 out to him. And he says, both in his submissions and his

15 evidence, that her work as a prostitute extended right

16 from the beginning right through to the end, and whilst

17 he thought at some stages she might have taken a break

18 from that because of his activities, he would want Your

19 Honour to believe otherwise.

20 The other edge of that two edged sword is that if

21 she worked as a prostitute he was never suggesting she

22 did that as an amateur or for no pay. He himself has

23 given evidence of the sorts of moneys that she would earn

24 for each client, and therefore if she did that work, she

25 incurred that income and there is no evidence from him,

26 not even a suggestion from him, that she flushed that

27 money down the toilet or that it has disappeared

28 somewhere out of the relationship.

29 So insofar as she did work, this is further evidence

30 and corroboration I submit on behalf of the plaintiff

31 that she contributed to the relationship. Just whilst

1.LL:CW 16/02/2009 FTR:2B 228 DISCUSSION

1 I'm on that part of his submissions, he repeatedly

2 submitted to Your Honour, both on Friday afternoon and at

3 other stages during the proceedings, that he could have

4 stood mute but he didn't and somehow he used that as an

5 argument to say that Your Honour effectively should treat

6 his submissions as a sort of no case submission.

7 But, Your Honour, ought to consider that my client

8 has the total onus of establishing her case and that he

9 could have stood mute and therefore Your Honour should

10 ignore anything that he said in terms of assessing my

11 client's credibility. But in my submission if he wanted

12 to run his no case submission he should have done that at

13 the close of my client's case. I make no bones, it would

14 have made her case a little bit more difficult because

15 most of the strength in her case, in my submission, came

16 from his evidence,

17Not from her evidence – his evidence in the context of her

18 evidence, not from her evidence alone. But he chose to

19 run a case and he chose to run some positive points so

20 therefore either the task is to, with respect, to measure

21 up the respect of credibility of the two parties as

22 witnesses and their other witnesses or it is if he's

23 going to make positive assertions he has certain onuses

24 once he raises those, such as she never lived with me,

25 she didn't do this, she did this. But I'll deal with

26 those in a more detailed fashion shortly.

27HIS HONOUR: Well as I said to him on Friday, and in fact it

28 seemed to me his conduct during the trial satisfied me he

29 understood it, that whilst the legal onus lies on your

30 client on the issues of a relationship contribution and

31 the like, nonetheless there are evidentiary burdens which

1.LL:CW 16/02/2009 FTR:2B 229 DISCUSSION

1 shift. as they do throughout a trial, particularly a

2 civil trial where a defendant does not have the benefit

3 of the presumption of innocence in a criminal trial. He

4 sought to import in his submission, some of the concepts

5 one more often hears put to a jury of 12. But he

6 understood fully the evidentiary onus and that's why he

7 entered the witness box.

8MR DEVRIES: Yes, Your Honour. Your Honour, with respect, has

9 put that better than I have. But that's what I was

10 trying to put to Your Honour - - -

11HIS HONOUR: And it really seems to me the real point.

12 Ultimately a client does, he's right, in this respect

13 your client bears the onus of satisfying me on the

14 balance of probabilities is the existence of the relevant

15 relationship and particularly the period of it and also

16 as to her contributions.

17MR DEVRIES: I hope to address those shortly, Your Honour.

18 Your Honour, before I leave Mr Johnson's address and I do

19 say this in terms of – that whilst he was treated in

20 these proceedings as a litigant in person, and I don't

21 say that with any measure of criticism at all - - -


23MR DEVRIES: But with respect quite properly he was treated as

24 a litigant in person, I submit that he wasn't just a

25 litigant in person and he didn't want to be portrayed as

26 just a litigant in person, but he was a litigant in

27 person who had very significant legal qualifications and

28 experience and, as I said on Friday, significant

29 intelligence and perception, well perhaps intelligence,

30 I'll leave perception aside. And in that context is how

31 I submit Your Honour should treat some of the statements

1.LL:CW 16/02/2009 FTR:2B 230 DISCUSSION

1 that he made in his address which were inaccurate.

2 The first one is with respect to Exhibit J which was

3 the letter signed by Sutton Johnson. It's a very short

4 letter, Your Honour.

5HIS HONOUR: Yes, I'll just see if I've got a copy of it. I

6 think I have got that. Yes, I've got that, thanks.

7MR DEVRIES: Yes. Now, in his address to Your Honour on

8 Friday, and that was at p.1602 of the transcript, he

9 denies that - - -

10HIS HONOUR: Denies he signed it.

11MR DEVRIES: Signed it.

12HIS HONOUR: Now, my recollection is in his evidence he did and

13 that was my recollection when he was making the address

14 to me. But I couldn't find that part of the transcript.

15MR DEVRIES: If I can assist Your Honour, p.738.

16HIS HONOUR: Seven three eight.

17MR DEVRIES: Starting at Line 20, Your Honour, "Is that your

18 signature over the name Andrew Hawking? It is, isn't

19 it". And he replied, "Yes, it is, Mr Devries". "And it

20 purports to say that you're employed by Sutton Lawyers as

21 senior legal counsel as of 30 November 2007 at an annual

22 salary of $300,000 doesn't it", and he replies, "It does,

23 Mr Devries". "It also purports to say that you've been

24 employed by Sutton Lawyers since a date in 1999, doesn't

25 it", he then gives a nonresponsive answer, the effect of

26 which is, "Yes, Sutton Lawyers and Sutton Johnson have

27 been one and the same for", and I interrupt, "No, no,

28 just answer my question", and he says, "Yes. What I'm

29 saying is correct, isn't it? Yes, that is correct". And

30 I put to him that it was not an accurate account of

31 affairs.

1.LL:CW 16/02/2009 FTR:2B 231 DISCUSSION

1 And then at the bottom of p.739 Line 30 I put to

2 him, "That letter is a lie, isn't it", and he says,

3 "There are statements in the letter which stretch the

4 truth. They record the fact as they should have if and

5 when I was able to focus fully on my own earnings". And

6 I put to him, "There's nothing in that letter that's got

7 any accuracy at all, is there? You weren't earning

8 $300,000 per annum on 30 November 2007, were you? No, I

9 wasn't, Mr Devries. You weren't employed by Sutton

10 Lawyers because it was a pro bono firm at that stage,

11 wasn't it? Well it was simply" – "It was simply" - I

12 think, "and the legal alternative" – "It was simply in

13 the legal alternative it was me, it was one of my

14 business names, Mr Devries. It didn't employ you,

15 did it".

16 And he says not in a legal sense, no. And further

17 on in answer to a question from Your Honour, Line 23 "So

18 you could not have been employed at a firm then" and he

19 replies "Correct, correct in a legal sense that's right,

20 yes." And over the page Your Honour had asked him a

21 couple of questions about the purpose of the letter and

22 you put to him "It seems to me you stated Mr Johnson that

23 the contents of this letter are untrue, is that right?"

24 and he replied "The contents are what the lender wanted

25 to hear to provide loan approval".

26 That's important for a number of reasons Your

27 Honour, firstly it puts light to what he said in his

28 address to you, secondly it goes to his credit overall,

29 and if you read that consistently with the statements he

30 made about truth being like the tide, which I'll take

31 Your Honour to.

1.LL:CW 16/02/2009 FTR:2B 232 DISCUSSION

1HIS HONOUR: Yes. It has a curious resonance doesn't it?

2MR DEVRIES: It does Your Honour and clearly in my submission

3 right throughout this matter, throughout his dealings

4 with his lenders, with regard to the bank, with regard to

5 the tax office and so on, his resonance has been

6 effectively, well I tell people what they need to hear to

7 meet my purpose and in my submission he's tried to do the

8 same thing in these proceedings. Your Honour while we're

9 on exhibits, at about the same time he submitted that

10 Exhibit L, which is one of the letters he wrote to

11 mortgagees, he portrayed the letter as saying one thing,

12 I'd submit Your Honour a fair reading of the letters they

13 say something quite different.

14 He says read that letter it corroborates my

15 assertion that "I was able to meet my debts as and when

16 they fell due". That's a self serving statement. The

17 letter's far more important for what he was trying to do

18 to thwart the plaintiff in her proceedings, and that is

19 that he was trying, quite blatantly as he says in that

20 letter, to minimise - to take actions which would

21 minimise the equity that would be available to her in the

22 event, which she thought was very unlikely, he says that

23 she would succeed in these proceedings.

24 He referred at around the same time to the report of

25 Ms Marion Love, or Marianne Love which is Exhibit 65 Your

26 Honour, and he tried to draw considerable comfort from

27 that report, it simply is to drawing on the sympathy

28 string before Your Honour, but the plaintiff takes

29 comfort from one line towards the bottom of p.4 of that

30 Exhibit.

31HIS HONOUR: Yes, I don't think I've got a copy of it there.

1.LL:CW 16/02/2009 FTR:2B 233 DISCUSSION

1 Just a minute I don't, if I could just go to 65 for a

2 minute.

3MR DEVRIES: The beginning of the last paragraph on p.4 Your

4 Honour. "James described being in a nine year

5 intermittent relationship with Pippin", two lines - two

6 sentences - won't take it out of context, you reported

7 that it has been through and large by the need to rescue

8 Pippin and her two boys. Throughout the nine years they

9 had a daughter together Illyana. The reported break down

10 of this relationship concerns the well being of his

11 children and the consequent financial preference of

12 (indistinct) have all contributed to James' experience in

13 high stress levels.

14 Now to some extent those are accounts that he's

15 given of a situation with which the plaintiff would

16 differ but not withstanding that he says against interest

17 that there was a nine year relationship. The word

18 intermittent is used by her, throughout the nine years

19 they had a daughter together and the relationship broke

20 down. At various times through the course of these

21 proceedings Mr Johnson has tried to convince Your Honour

22 that there was no relationship or that it was a

23 relationship that was really incapable of breaking down,

24 it was just a relationship of people who knew each other

25 and he drew all sorts of weird comparisons of various

26 other forms of relationships.

27 If that was the only corroboration that I had to

28 rely upon to support my client's evidence that there was

29 a relationship, I'd be on very shaky ground Your Honour,

30 but I'm just putting it at this point as just another

31 item of corroboration that there was a relationship and

1.LL:CW 16/02/2009 FTR:2B 234 DISCUSSION

1 it was over the period of time that Mr - that my client

2 asserts, and I'll come back to the affidavit that Mr

3 Johnson swore, but I'll be doing that a bit later on Your

4 Honour in the family law proceedings. Whilst in the nine

5 year period - - -

6HIS HONOUR: Thanks David.

7MR DEVRIES: Sorry Your Honour. Whilst we're on the nine year

8 period of the relationship which is consistent with -

9 that period is consistent with what my client asserts the

10 relationship was.

11 and, I'll come back to this point later on, but it is

12 important to her case that it is a nine year relationship

13 as distinct from a relationship of a much shorter

14 compass, because the contributions that a party can make

15 are going to be a lot less in two years in most cases

16 than they would be in nine years if it was a constant

17 form of contribution. So whilst Mr Johnson seemed to

18 portray this argument that we were required to establish

19 a relationship of two years, no more, no less and that

20 that two years had to end within two years of the issuing

21 of the application, that is not the law and that is not

22 the situation, Your Honour.

23HIS HONOUR: That's the minimum.

24MR DEVRIES: That's the minimum.

25HIS HONOUR: That's the minimum.

26MR DEVRIES: It's not, with respect, Your Honour, it's not

27 necessarily the minimum.

28HIS HONOUR: Not necessarily the minimum. Two years is the

29 minimum. Within two years of the date of issue of

30 proceedings is a prima facie position subject to I think

31 an application for extension, is it not?

1.LL:CW 16/02/2009 FTR:2B 235 DISCUSSION

1MR DEVRIES: It is, Your Honour, and there are a huge number of

2 cases around extensions and they just say that

3 effectively the hurdles that the applicant has to

4 overcome are not very high hurdles. But the length of

5 the relationship doesn't even have to be two years if

6 there is a child of the domestic partners, and that is at

7 sub-s.2A of s.281 of the Act as it then was, or: "A

8 failure to make the order will result in a serious

9 injustice to the domestic partner."


11MR DEVRIES: I am not relying on sub-s.2B, Your Honour.

12HIS HONOUR: It's 2A.

13MR DEVRIES: 2A, if there was any suggestion that the

14 relationship was less than two years. But Your Honour

15 picked up Mr Johnson when he started to resile from the

16 relationship of the parties whilst at South Yarra and he

17 had said well, a reasonable person would find that there

18 was a domestic relationship for that period, and the

19 period happened to be two years and about three months.

20HIS HONOUR: Curiously that is the period when he alleges your

21 client had two affairs.


23HIS HONOUR: So - - -

24MR DEVRIES: It was an allegation that - - -

25HIS HONOUR: Without wanting to divert you, if he knew your

26 client still had two affairs and he still hung in there

27 for a relationship, that speaks something about his

28 degree of attachment.

29MR DEVRIES: Yes, Your Honour, and degree of attachment comes

30 in as well in respect to his bonding with the two boys of

31 my client.

1.LL:CW 16/02/2009 FTR:2B 236 DISCUSSION

1HIS HONOUR: Yes, payment of education fees.

2MR DEVRIES: Payment of education fees and it begs the question

3 if you accept his evidence that he made so many payments

4 to my client and I will be taking issue with some of

5 those, but if he did make all these payments or if he did

6 want to be seen to be making all those payments, why

7 would he do that if there was no a fairly close

8 relationship. This is a man who has given evidence that

9 he went to extraordinary lengths to minimise the taxation

10 on his income, that's why he has this extraordinary

11 investing policy.

12 Now, a person who is that careful of not paying tax

13 is not going to be spending a vast amount of money

14 unnecessarily on a charitable activity, in my submission.

15 Now, Your Honour, whilst I am on the Act, the Act or that

16 part of the Act defines "children" for the purposes of

17 parts of the Act quite differently. For the purpose that

18 I have just read to Your Honour that the child of the

19 domestic partner is the child born of the relationship of

20 them, or a child adopted by the partners, which isn't the

21 case here, or: "A child of one of the partners of whom

22 the other partner is presumed to be the father under Part

23 2 of the Status of Children Act," that doesn't apply

24 either.

25 But there is another reference to "child" and that

26 is at s.285, the section dealing with orders for

27 adjustment. In sub-s.1B of that it talks about:

28 "Contributions made in the capacity of home maker and

29 parent to the welfare of the other domestic partner, or

30 to the welfare of the family constituted by the partners

31 and one or more of the following: a child of the

1.LL:CW 16/02/2009 FTR:2B 237 DISCUSSION

1 partners," that's Illyana, "or a child accepted by one or

2 both of the partners into their household, whether or not

3 the child is a child of either of the partners."

4 If Your Honour upholds my submission that there was

5 a domestic relationship between the parties, two of the

6 members of that family were the two boys that were

7 accepted - well, the children of my client and they were

8 accepted as part of the household by Mr Johnson and in a

9 very significant way, because he gave evidence, to my

10 recollection, about family memberships of the zoo and

11 other places and that they went on excursions using that

12 and he took all of the children.

13 Again, I put that in that context and also in the

14 context where he says there was no evidence of any family

15 activities, and his own evidence was, well, I signed them

16 up to family memberships, we went out on family

17 excursions, and there was also evidence from both of them

18 that they went out to dinner a lot as a couple. The

19 significance of "the child accepted by one or more of the

20 partners" will also go to the ongoing contribution of my

21 client up to the commencement of these proceedings or

22 later, pursuant to Gilda v. Procopets, and that is her

23 contribution as parent of all three children, not just of

24 Illyana.

25 An in that context, so the context of the two

26 boys being part of the family, if I could also refer to

27 Your Honour to Exhibit 19 which was his application in

28 the Federal Magistrates' Court proceedings where he

29 sought to have those two boys reside with him and under

30 cross-examination from me. He eventually conceded with a

31 great deal of reluctance that he never sought to have the

1.LL:CW 16/02/2009 FTR:2B 238 DISCUSSION

1 two boys deleted from that application and therefore that

2 application was sought by him right up until His Honour

3 Federal Magistrate O'Dwyer made the orders that have been

4 tendered before Your Honour, the final orders.

5 Now, returning back to the misrepresentations

6 made by Mr Johnson in his address, there is also his

7 uncountable references to discovery. There was no

8 discovery, as that term was properly understood in these

9 proceedings. At best, there was the order of His

10 Honour - - -

11HIS HONOUR: Justice Wheelan in March - - -

12MR DEVRIES: - - - Justice Wheelan - - -

13HIS HONOUR: - - -of last year.

14MR DEVRIES: 12 March, yes.

15HIS HONOUR: There's a limited order.

16MR DEVRIES: A limited order and it was, so, essentially the

17 bringing to the court of documents. The other inaccuracy

18 that Mr Johnson perpetrated throughout his address, and I

19 think even in his evidence, was that the order made by

20 His Honour on 12 March was a consent order. It wasn't,

21 Your Honour. There's nothing in the order – on the face

22 of the order to suggest that it was an order by consent.

23HIS HONOUR: What were the – there were some – I think he's

24 really referring to what was in the other matters section

25 of His Honour's orders. How did they get into that part

26 of the order? Is that by consent?


28HIS HONOUR: You've got your court book there, it's at p.80.

29MR DEVRIES: Yes, Your Honour.

30HIS HONOUR: In fact, it sounds like it wasn't consensual. It

31 was done - - -

1.LL:CW 16/02/2009 FTR:2B 239 DISCUSSION

1MR DEVRIES: I think it was done - - -

2HIS HONOUR: - - - by your predecessor of his own motion.

3 Because what he said – what's recorded there is, "The

4 plaintiff's counsel advised the court the defendant could

5 collect the boxes of records presently in a shed at

6 Altona from the front porch of that address at 10 a.m. on

7 14 March and the defendant advised he would collect them

8 then." So, it sounds like that might have simply been

9 made or stated as a proposition - - -

10MR DEVRIES: Yes, Your Honour.

11HIS HONOUR: - - - by counsel. But, you say, the orders for

12 discovery there, limited discovery, were simply His

13 Honour's orders and not by consent?

14MR DEVRIES: That's right, Your Honour.

15HIS HONOUR: Go on.

16MR DEVRIES: And, it was required of both parties and

17 absolutely nothing hinges on it but I've done a search of

18 the court documents that were briefed to me, which I

19 believe are very extensive and I couldn't find an

20 affidavit from the defendant anyway listing document that

21 he had - - -

22HIS HONOUR: No, I don't think I've noticed one and then I

23 notice the matter came before Master Kings on 9 April and

24 effectively she reiterated the terms of the limited

25 discovery order.

26MR DEVRIES: Yes, Your Honour.

27HIS HONOUR: Which is clause 1, Mr Johnson was there.

28 Presumably he did not seek an order for discovery.

29 Presumably neither of you did. I would have thought that

30 the listing would have made such a broader order had she

31 been asked. There you are.

1.LL:CW 16/02/2009 FTR:2B 240 DISCUSSION

1MR DEVRIES: There – I have to advise Your Honour that

2 Mr Johnson did indicate to the court on at least one

3 occasion that he wanted the court to address the question

4 of discovery and Master Kings set the matter down for

5 Mr Johnson to pursue that application and Mr Johnson

6 didn't turn up - - -


8MR DEVRIES: - - - and said, "No one told me it was on." I

9 might say in the context of Mr Johnson not being here

10 today, I anticipate that later on he will criticise

11 what's gone on today because things went on whilst he

12 wasn't here. He's made that criticism of the orders of

13 Federal Magistrate O'Dwyer, orders of this court in

14 interlocutory steps.

15HIS HONOUR: Well, he had every opportunity to be here today.

16 I had told him in clear terms that I would be amenable to

17 him having a right of reply if there was something said

18 by you in your address which he had not anticipated or

19 couldn't – might not have been anticipated.

20 Notwithstanding my advice to him that he should stay,

21 he's gone.

22MR DEVRIES: Yes, Your Honour.

23HIS HONOUR: Having said that, I might imitate – I

24 might – I seem to be troubled by the same complaint.

25 You'll see often, from time to time, I will stand up

26 during your address to relieve pressure on my back.

27 Don't be off-put by that, you just keep going.

28MR DEVRIES: If Your Honour pleases, and I say this with

29 respect. If Your Honour at any stage needs a break - - -


31MR DEVRIES: - - - I'm always happy to have breaks rather than

1.LL:CW 16/02/2009 FTR:2B 241 DISCUSSION

1 talking.

2HIS HONOUR: Mutually, Mr Devries, if you need a break, I'll

3 certainly give you one.

4MR DEVRIES: Mr Johnson, during his submissions – sorry, during

5 his address repeatedly made reference to his application

6 to amend his counter-claim.

7 That could not be further from the truth. On at least

8 one occasion, Your Honour, no more than one occasion with

9 respect, Your Honour indicated that Your Honour would

10 accede to an application by him to amend his counter-

11 claim provided certain conditions were met, that he put

12 it in writing, that the amendments didn't take the other

13 parties as they then were by surprise - and I don't think

14 I'm doing Your Honour justice and I don't wish to go to

15 the transcript because it would unnecessarily extend the

16 time, but on each - - -

17HIS HONOUR: Yes, I recollect having stated to him the basic

18 principle of a trial of Willem J in the pleading

19 providing it doesn't provide undue injustice to the other

20 side, provided also that the amendment is put in writing.

21 The impression I must say I had throughout the trial is

22 that Mr Johnson did not want to do that. He wanted to

23 preserve the very large counter-claim, and when I say

24 large I mean large in terms of how much paper it

25 consumes, as he has in the other proceeding and he didn't

26 want to bring it in part into this proceeding but rather

27 wanted to bring the whole of that proceeding into this

28 proceeding which self-evidently was impossible and

29 unworkable.

30MR DEVRIES: I think that was part of it. I might say that

31 it's large also in the relief that he is seeking against

1.LL:CW 16/02/2009 FTR:2B 242 DISCUSSION

1 the 13 defendants. He is seeking, on my instructor's

2 calculations, 11 and a half million dollars. So whilst

3 we are on that for just one moment, Your Honour - - -

4HIS HONOUR: Yes, I'm sorry, I diverted you.

5MR DEVRIES: Yes, at p.574 of the transcript Your Honour says,

6 and it's one sentence: "I would allow you to amend your

7 pleading subject to any issues of prejudice to the

8 defendants, however, this court is a court of pleading,

9 it is a common law court, the proceedings are by way of

10 writ. You managed to deliver the defence into service

11 counter-claims against all defendants." He, Mr Johnson,

12 declined Your Honour's - if I can put it that way

13 - invitation: "I believe I have sufficient facts stating

14 my February 2008 counter-claims in which to ground my

15 counter-claims against David William Hanlon and Howard

16 Andrews Pty Ltd." Your Honour then said: "You have to

17 prove those facts." And he said: "I appreciate that."

18 Then of course he went on to his endless refrain of there

19 are other proceedings and Your Honour ought to bring

20 those into this matter.


22MR DEVRIES: Your Honour very, with respect, patiently

23 explained over and over again why that couldn't happen,

24 and that was one of the rulings that he had great

25 difficulty in hearing and accepting. I think the same

26 thing happened again - p.1007 of the submissions - sorry,

27 1006. Your Honour made similar comments at the bottom of

28 p.1006, top of p.1007. You gave him over lunch to

29 consider whether he wished to do that and he again never

30 took up that invitation. I think that might be at 1016.

31HIS HONOUR: Yes, that's right, I told him I would only accept

1.LL:CW 16/02/2009 FTR:2B 243 DISCUSSION

1 an amendment if it was properly drawn, there was an

2 explanation why it was only proffered at a late stage.

3 Thirdly: "An indication of forensic disadvantage the

4 second and third defendants in the sense that they could

5 deal with new issues raised by them recalling witnesses

6 or further witnesses. Those three conditions you would

7 need to meet." Well, that's simply trite law that I was

8 stating to him: "So you would need to think very hard

9 and carefully about whether you wish to amend." That's

10 right, I gave him the luncheon adjournment to consider

11 amendment.

12MR DEVRIES: Then on p.1016 you asked him a number of times or

13 you sought on a number of occasions to get a straight

14 answer from him. Towards the bottom of p.1016 at line

15 24, Your Honour asks him: "Do you seek leave to do it or

16 not?" Mr Johnson said: "In a word." Your Honour goes

17 on: "You are not shut out, do you seek leave to do so or

18 not?" Mr Johnson: "In one word answer, no." Then, not

19 a typically for Mr Johnson: "Your Honour, may I explain

20 further?" Yet in his address he seemed to suggest that

21 he had applied to amend his counter-claim and at no stage

22 had he applied to amend that counter-claim.


24MR DEVRIES: Another thing that was in his address but was the

25 evidence, and in my submission deliberately was the

26 allegations regarding Mr Cochrane.

27HIS HONOUR: Yes, I was wondering about that, I could not

28 recollect him putting them to your client.

29MR DEVRIES: There is no one word Mr Cochrane put to my client

30 in her cross-examination, at least I have gone through

31 the transcript a number of times and I couldn’t find it.

1.LL:CW 16/02/2009 FTR:2B 244 DISCUSSION


2MR DEVRIES: Nor was there any evidence about Mr Cochrane from

3 Mr Johnson except in the context of him being called to

4 give evidence, and it was more - - -

5HIS HONOUR: He alleged a relationship.

6MR DEVRIES: He did, but that was during the course of saying

7 this is why I want Mr Cochrane, because that is the

8 evidence he is going to give.

9HIS HONOUR: I thought in his evidence in the witness box he

10 alleged a relationship - I wish I had noted this now

11 because his evidence is quite lengthy - I may be wrong.

12MR DEVRIES: There is certainly a reference at 495.

13HIS HONOUR: Here it is, p.442. That page reference may not be

14 dead accurate. I just summarised for my own purposes.

15MR DEVRIES: Sorry, Your Honour is correct, I hadn't gone to

16 that part.

17HIS HONOUR: Here it is, the top of p.443.

18MR DEVRIES: Yes: "Where Ms Cressy is involved in a long term

19 intimate relationship with another gentleman, a Mr Peter

20 Cochrane, who I did not know at the time but there was

21 very nasty stalking behaviour that I was the victim of

22 and some identity theft that started happening." There

23 were two other references to Mr Cochrane that I could

24 find. One was at p.475 I think it was, Your Honour, 495,

25 sorry.

26 This is where he says: "So much resources to keep

27 her going back from going into prostitution, because that

28 was not a good life for her and you can imagine the flow

29 on effects for the children, this is why this witness, Mr

30 Peter Cochrane, was so critical to the case. He can give

31 independent evidence of the flow on and he was himself

1.LL:CW 16/02/2009 FTR:2B 245 DISCUSSION

1 part of the substantial harm that the lifestyle brings to

2 the family unit." Interesting, too, because he talks of

3 the family unit and without a doubt whatever he alleges

4 Mr Cochrane did, it involved damage to him as part of the

5 family unit. There was one other reference I could find

6 to Mr Cochrane and that's at 549.

7HIS HONOUR: That's not correct, 541 did you say?

8MR DEVRIES: 549, line 5. This is in the discussion - it was

9 in the witness box but it was a discussion about bringing

10 Mr Cochrane to court, and I have said on p.548: "I

11 cannot conceive how - " - I don't think I said this word

12 "conceive", "but on the information I have had the

13 evidence of - " - "I will concede, however, on the

14 evidence I have held, the evidence of Mr Cochrane can be

15 of any assistance to Your Honour, and Mr Johnson says:

16 "Now, this man - if I'm saying too much please stop,"

17 this is over the page, "please stop me in a minute,

18 Your Honour."

19HIS HONOUR: Sorry, where are you?

20MR DEVRIES: I'm now over the page at p.549, line 2. "Now,

21 this man - if I'm saying too much please stop me in a

22 minute, Your Honour. I believe from correspondence that

23 he wrote to me which I wish to tender in evidence that he

24 was in an intimate personal relationship with Ms Cressy

25 for about three years whilst she was living under my roof

26 at South Yarra and he observed her work in several

27 licensed, unlicensed, I don't know, several brothels,

28 Your Honour."

29 He says: "I wish to tender in evidence." So he

30 wishes to get Mr Cochrane in to give the evidence. I

31 suppose I would have to concede that in a very indirect

1.LL:CW 16/02/2009 FTR:2B 246 DISCUSSION

1 sense he may be giving that evidence. It's not something

2 that was put to my client.

3HIS HONOUR: Not put to your client and in the end of the day

4 Mr Cochrane, whether truthfully or otherwise, may well be

5 because of his medical condition didn't seem to recognise

6 anyone in this court, but Constable Locke, who had

7 evidence by way of admission from your client as to

8 nothing more than he had been a client in the brothel.

9MR DEVRIES: And that he had followed her home.

10HIS HONOUR: He'd followed her home, stalked her, and whilst

11 she did say something about a relationship, in cross-

12 examination she agreed with you that such a relationship

13 may well have been confined simply to the relationship of

14 stalker and victim of stalker.

15MR DEVRIES: Yes. She was - Mr Cochrane, her and others were

16 witnesses called by Mr Johnson and then he did the

17 extraordinary thing in his addresses in each case

18 criticising his own witnesses, which I found that

19 somewhat extraordinary but (indistinct). Now, just

20 seeing a photograph here on my - on the Bar table,

21 they've got nothing to do with this matter. It brings to

22 mind again Mr Johnson's

23 Mr Johnson's changing position with respect to

24 Illyana, having conceded very explicitly that he takes no

25 issues with the fact that he was – she was his daughter

26 and then on other occasions saying she wasn't. He went

27 to great lengths to get into evidence, a photograph of

28 his – of him and his daughter and went beyond that and I

29 think possibly improperly, by having the photograph of

30 his daughter very clearly placed on the Bar table, face

31 up to Your Honour, as if hoping that would get it into

1.LL:CW 16/02/2009 FTR:2B 247 DISCUSSION

1 evidence or in some way affect Your Honour. But, that's

2 also, I suppose, behaviour that puts light to some of the

3 things that he said.

4 Your Honour, a further misrepresentation in the

5 hearing is made by Mr Johnson in his address is at

6 p.1703, Line 12 of the transcript and this is where he

7 stated that Ms Cressy senior also admits to having some

8 mental health issues, serious depression episodes, some

9 serious drug-taking and alcohol problems. She admitted

10 that under cross-examination. Nothing could be further

11 from the truth, Your Honour. She certainly said that she

12 took a wide range of prescription medication and that she

13 suffered from depression but she explicitly denied

14 illicit drug-taking and alcohol problems.

15 Mr Johnson, in evidence from the Bar table – no,

16 sorry, at p.1714, put to Your Honour that I had made the

17 suggestion under cross-examination that he and my client

18 were living as pimp and prostitute. I never, ever put

19 anything along the lines of him pimping my client, being

20 a pimp or anything like that. As far as I, - I went as

21 far as to say that he had registered. He also stated at

22 1724 that there was evidence in the Family Court that had

23 him as drunken, violent, drug-taking, incestuous

24 paedophile. This is evidence from the Bar table. I can

25 provide the judgment. At no stage was there any

26 suggestion made that Mr Johnson was any of those things.

27HIS HONOUR: Well, I told Mr Johnson that I'm only concerned

28 with the evidence in this case, in any event.

29MR DEVRIES: Yes. This goes in a positive - - -

30HIS HONOUR: In fact, I put to him and I think then he – I'm

31 pretty certain I put to him that if it goes to his credit

1.LL:CW 16/02/2009 FTR:2B 248 DISCUSSION

1 that he bonded so well with - - -


3HIS HONOUR: - - - Ms Cressy's children, you rely on that as a

4 point as showing the existence of the relationship but it

5 does seem that notwithstanding the very long work hours

6 that he had, he was the nonetheless able to sustain a

7 very good relationship with the three children. Now,

8 that's the evidence before me.

9MR DEVRIES: And, it does say a great deal for him, Your

10 Honour. I have to concede that working – well, first of

11 all working 80 hours a week plus, that says a great deal

12 of him and that notwithstanding that, that he's still

13 there, sufficiently to build up the sort of relationship

14 with the three children but in particular the two boys

15 that are admittedly not his two children. He also said

16 at p.1726 that he'd provided ongoing child support yet

17 the evidence was that there was only one payment of

18 eighteen – of $800, in I think, August or September 2007.

19 And, he then made the intriguing statement on

20 p.1726, Line 21, "The $2m that I was assessed as

21 creditworthy, based on my financials and loan

22 applications by the Commonwealth Bank." That's

23 breathtaking, given his admissions of the inaccuracy of

24 the information that he put to the lending institution

25 and the evidence that he candidly gave that all of the

26 financial information he gave them was two years out of

27 date and related taxable income that preceded the

28 applications by two years.

29HIS HONOUR: He nevertheless produced some financial evidence

30 to the lenders and they lent sums, which I think his

31 arithmetic's about right, about $2m.

1.LL:CW 16/02/2009 FTR:2B 249 DISCUSSION

1MR DEVRIES: I can't take issue with that because that – the

2 figures do stack up.


4MR DEVRIES: And - - -

5HIS HONOUR: It's pretty extraordinary, but - - -

6MR DEVRIES: He gave evidence that he – that whenever – sorry,

7 that he bought the properties and whenever any equity was

8 achieved in the properties - - -


10MR DEVRIES: - - - that was taken out to buy another property.


12MR DEVRIES: And, it's the plaintiff's case that that was a

13 very precarious house of cards that he had erected and

14 that it worked well, firstly while he continued to work

15 and could meet the mortgage payments but also worked well

16 when the burden of making payments for other aspects of

17 his living expenses was borne by my client.


19MR DEVRIES: And, as soon as she pulls her contribution out,

20 that's the beginning of the collapsing of the house of

21 cards and that's why, I'll be submitting a bit further on

22 that she's made a very significant, indirect financial

23 contribution to the acquisition of the properties. I can

24 say this, at this stage, Your Honour, or concede at this

25 stage.

26 It's not her case and I don't believe it ever has been

27 her case that she made significant or substantial direct

28 contributions to the mortgage payments on the property.

29 She did say that occasionally she advanced some cash

30 towards - - -

31HIS HONOUR: The deposits.

1.LL:CW 16/02/2009 FTR:2B 250 DISCUSSION

1MR DEVRIES: The deposits.

2HIS HONOUR: That's all she said, in fact I think she very

3 freely acknowledged that he took the burden of the

4 mortgages and she paid the household.

5MR DEVRIES: She said that was their - - -

6HIS HONOUR: He paid the mortgages and utilities. She paid

7 food and living expenses.

8MR DEVRIES: Yes, and she was consistent in that and she said

9 that was their arrangement, that he took responsibility

10 for that and her evidence was that either he told her or

11 he told her to believe - the properties were put in his

12 name for various taxation reasons and also because he had

13 the capacity to borrow and she didn't have the capacity

14 to borrow. In a sense they were very, very significant

15 contributions on his part but, as I will be coming to

16 hopefully not too much further down the track, he could

17 not have done that without her help and therefore her

18 help was significant, if not as financially substantial

19 as his.

20 If I (indistinct) there, Your Honour, I believe I

21 have to establish the relationship and I will come to

22 that in a second.

23HIS HONOUR: Yes, that is your threshold point, question.

24MR DEVRIES: Yes, before I do that just one more aspect of

25 Mr Johnson's submissions. There seem to be four legs or

26 he said there were four legs to his submissions. The

27 fourth one seemed to be, if I could summarise it as

28 representative conduct, and I think the other three were

29 that there was no relationship, that the plaintiff's case

30 relied totally on vive voce evidence and there was no

31 hard evidence and there were no financial contributions

1.LL:CW 16/02/2009 FTR:2B 251 DISCUSSION

1 by my client. I glean those to be the four points that

2 he made, but whilst I will answer those areas more to my

3 client's case than that.


5MR DEVRIES: In respect to the relationship, Your Honour, he

6 submits that there is no evidence over and above my

7 client's evidence. First of all, that begs the question,

8 in my submission, as to the respective credit of the two

9 parties. The first matter I will address in respect to

10 credit is Mr Johnson's behaviour in this honourable court

11 and I submitted on Friday that he was trying to erect a

12 massive smoke screen and trying to divert everyone's

13 attention from dealing with the issues themselves, the

14 relevant issues head on.

15 In the context of him being an educated, relevantly

16 educated, highly intelligent, articulate person, the only

17 conclusion Your Honour could draw with respect is that

18 his behaviour was calculated and deliberate and it begs

19 the question if he was trying to prevent the matters

20 being dealt with head on, the proper issues, that could

21 only be because he was afraid of where dealing with the

22 issues head on would take him.

23 He also had an endless refrain of show me the

24 documents, show me your documents, put your documents

25 forward. My client gave evidence that she couldn’t

26 provide the documents because they had been stolen. No

27 evidence, no clear evidence that Mr Johnson stole the

28 documents, but in my submission it is open to Your

29 Honour, with respect, to conclude that Mr Johnson's

30 constant theme of you have got no case without the

31 documents, you can't show me the documents, and his

1.LL:CW 16/02/2009 FTR:2B 252 DISCUSSION

1 accusations that my client took documents from him to

2 prevent him putting documents forward, leads to only one

3 conclusion and that is that he had taken the documents,

4 why else would he make a big issue of the documents.

5HIS HONOUR: He gave an account as to how he on one occasion

6 entered, I think it was the Point Cook property, and

7 photocopied some documents. He denied otherwise taking

8 them. My recollection is that you did not cross-examine

9 him on that. I am not being critical of you, you

10 couldn't chase every rabbit down every burrow, but you

11 ask me to draw a conclusion against him which I could

12 only draw on the Briggenshaw standard in the face of his

13 evidence which has not been tested on that topic.

14 Whatever I find generally about his credit, he wasn't

15 cross-examined to my recollection on that topic. It may

16 be a tall order to ask me to find that he actually

17 specifically stole them. It may be a different issue as

18 to whether nonetheless I am not to draw a Jones v. Dunkel

19 inference against your client because she can't unearth

20 them.

21MR DEVRIES: I didn't cross-examine him on that, Your Honour,

22 my submission - and I concede it's certainly not the

23 strongest point of my case - I hope it's not the

24 strongest point of my case - is that it is open for Your

25 Honour to draw that conclusion but on a Briggenshaw test

26 I have to concede that Your Honour couldn't do that.

27 But I am not pressing Your Honour to do that but I

28 do raise that as a possibility. There are far - - -

29HIS HONOUR: What he really puts in relation to the

30 relationship is this, he put a number of submissions but

31 one of his submissions was well Ms Cressy produced a

1.LL:CW 16/02/2009 FTR:2B 253 DISCUSSION

1 couple of documents from early in the relationship, the

2 Valentines Day card and I think another message is

3 attached to it. But there are no other documents, no

4 photographs of family scenes, anything like that. His

5 greater argument I think on documentation was directed to

6 the issue of contribution, just look at how they could

7 document their relationship. But he did make that point

8 on the relationship, chronologically you'll need to deal

9 with these points.

10 In relation to the existence of a relationship at

11 Geelong he referred to the birth certificate of Illyana

12 which put them at separate addresses, he claimed there

13 was an inconsistency in your clients evidence as to when

14 she moved from Illouera Grove to Gheringhap Street, he -

15 and there was another point on Geelong, yes he also - no,

16 no those are the major points on Geelong. On South Yarra

17 while he made the concession on cross-examination he did

18 submit well there's a large extended family there and

19 somehow or other that it militated against there being a

20 relationship at South Yarra as well as alleging your

21 client had a relationships with Cochram and a man called

22 Mark.

23 He focused pretty heavily on Queen Street and said

24 apart from the mail direction there's no independent

25 evidence as to a relationship extending during that

26 period. He referred to his licences which weren't

27 endorsed with the Queen Street address. He referred to

28 the fact that he had the Bourke Street offices and he

29 said "Well I didn't need offices because I was working

30 for Primelife in Bowen and they gave me offices of my

31 own" so he said that supported his evidence, he primarily

1.LL:CW 16/02/2009 FTR:2B 254 DISCUSSION

1 took those apartments for domestic arrangements. I think

2 they're some of the points he made.


4HIS HONOUR: And I spray them around to you, but they're some

5 points you will need to address on this aspect of the

6 case. I must say getting those points out of his long

7 one and a half day address is trying to find little

8 specks of light in a very turgid dark whirlpool that was

9 confusing, had to go through his final address a few

10 times to try and pull out and extract the points that

11 really had some relevance to this case.

12MR DEVRIES: I was hoping to deal with those in various ways.


14MR DEVRIES: Perhaps if I could deal with the - well the - - -

15HIS HONOUR: Now I don't expect you to address them

16 immediately, but they're the types of points he's really

17 raising.

18MR DEVRIES: I was intending to address them after going into

19 why, where there's a conflict in the evidence between my

20 client and Mr Johnson, you should prefer my client's

21 evidence.

22HIS HONOUR: It's better you do it in the order you were

23 planning to do it otherwise I'll distract you from it, if

24 you can deal with those points as you get to them.

25MR DEVRIES: I can deal with them now Your Honour.

26HIS HONOUR: Well whenever you wish.

27MR DEVRIES: Your Honour just bear with me for one moment, just

28 (indistinct) identify a particular - Exhibit F Your

29 Honour, this is the notorious affidavit.

30HIS HONOUR: Yes, yes I've got that.

31MR DEVRIES: In respect of that, the first submission I put to

1.LL:CW 16/02/2009 FTR:2B 255 DISCUSSION

1 Your Honour is that Your Honour should draw the

2 appropriate Jones v. Dunkel inferences from the fact that

3 Mr Johnson did not call Ms Leanne Kelly, there's no

4 evidence before the court which she was not available to

5 be called. Mr Johnson repeatedly stated he was going to

6 call her and he repeatedly suggested, contrary to his own

7 evidence I might say Your Honour, that she was

8 responsible for the affidavit not reflecting his

9 instructions.


11MR DEVRIES: And his explanation for not calling her was hard

12 to follow but seemed to be along the lines of, "If I

13 called her I would rely upon legal professional privilege

14 and therefore she couldn't answer any questions" and Your

15 Honour did put to him in the course of that that

16 arguably, I'm summarising what Your Honour said, arguably

17 he'd waived professional privilege by the evidence that

18 he'd given in that respect and I'm not sure Your Honour

19 that legal professional privilege in respect to a matter

20 that's completed bears on this matter but - - -

21HIS HONOUR: I think it would, but the fact is - - -

22MR DEVRIES: It's an overlapping - - -

23HIS HONOUR: Yes, but he'd - the real point is that it seems to

24 me in cross-examination he's very quick to say that the

25 verbiage was Ms Kelly, that in fact that he even raised

26 it with her, but relied on her judgment as to the wording

27 of that affidavit.


29HIS HONOUR: That was part of his explanation, the other was

30 the high tide, low tide explanation.

31MR DEVRIES: I was going to come to the high tide, low tide

1.LL:CW 16/02/2009 FTR:2B 256 DISCUSSION

1 shortly Your Honour but twice he gave evidence that he'd

2 signed each page of that document, that he swore it as

3 being true and correct in every particular and that he

4 accepted responsibility for it's contents. He did say in

5 the high tide low tide context that

6 Your Honour should take his documentation in the

7 context of the audience for which it was written and that

8 at one stage he suggested, I can take Your Honour to the

9 transcript reference in a moment, that, what else could

10 you – what else could he do, he was desperate to protect

11 the boys, or – not quite those words but that was the

12 context. But, Your Honour, it quite clearly is sworn

13 evidence given by Mr Johnson in September 2007 that he

14 commenced a relationship with my client in about November

15 1998 and that's at Paragraph 2 of that affidavit. Then

16 he goes on to say in Paragraph 4, "The respondent and I

17 have lived or partly lived together from December 1998 to

18 January 1999 and from May 1999 to June 2007."

19 And, that is also consistent with his unvaried

20 application to the court – to the Federal Magistrates'

21 Court, which is Exhibit 19 where the same concepts are put

22 to the court and the application was never varied. And

23 then he goes on to say, "The respondent and I have one

24 child together, Illyana Patricia Cressy born 9 June 2000."

25 There is no doubt there that he is asserting that Illyana

26 is his child.

27HIS HONOUR: This is the affidavit in that application isn't

28 it? That's - - -


30HIS HONOUR: - - - Exhibit F of the affidavit in application

31 which is Exhibit 19.

1.LL:CW 16/02/2009 FTR:2B 257 DISCUSSION

1MR DEVRIES: Yes, it was filed contemporaneously with the

2 application, Your Honour. You'll see on the top of both

3 of them, filed at Melbourne and the date stamp

4 14 September 2007. I - - -

5HIS HONOUR: Yes, I see.

6MR DEVRIES: And, for the same hearing date obviously and in

7 the same - - -


9MR DEVRIES: - - - matter.

10HIS HONOUR: Same matter, yes, right.

11MR DEVRIES: I'm not suggesting, Your Honour, that he signed

12 that application because he didn't. That was signed - - -


14MR DEVRIES: - - - quite appropriately and quite normally by

15 his solicitor but what I’m relying on is the fact that he

16 conceded in cross-examination that he never sought to

17 change or vary that application in any particular. But,

18 more importantly, he has gone on his oath as both a

19 litigant and as an officer of this court and of the

20 Federal Magistrates' Court to depose to the fact that they

21 were in a relationship and it's a relationship that spans

22 precisely the same period of time as my client's viva voce

23 evidence put it at.

24 The only difference between my client's evidence

25 in respect to the period of the relationship and that

26 affidavit is as to precisely when the parties had a

27 separation mid relationship. I don't believe, or I can't

28 recall, I should say, that she gave evidence that they had

29 a break from January 1999 to May 1999 but she did give

30 evidence that they had a two month separation - - -


1.LL:CW 16/02/2009 FTR:2B 258 DISCUSSION

1MR DEVRIES: - - - shortly prior to the birth of - - -

2HIS HONOUR: Illyana.

3MR DEVRIES: Illyana.

4HIS HONOUR: Yes, my impression was that it was early 2000.

5MR DEVRIES: Yes, Illyana being born in June 2000. If there

6 was a two month separation shortly prior to her birth, it

7 would have to have been in the first five months of 2000.

8HIS HONOUR: I have some recollection Mr Johnson did talk about

9 some sort of ruction in their relationship - - -


11HIS HONOUR: - - - at times. Do you?

12MR DEVRIES: And my client gave evidence that there was some

13 relationship counselling with two different counsellors.

14 One was Ms Love and one was – I can't remember the lady's

15 name, I believe she gave evidence that that was at about

16 the time of the break that she says occurred just before

17 Illyana's birth. And, I might – If I can, in that

18 context, digress for a moment and turn to the birth

19 certificate, Your Honour. I'd ask Your Honour to have a

20 look at the birth certificate.

21HIS HONOUR: It is Exhibit 9, isn't it?

22MR DEVRIES: It's Exhibit 9.

23HIS HONOUR: I think I've got that too, I'll just check. I've

24 got a copy of it, yes, I've got that.

25MR DEVRIES: Your Honour, I can't give evidence as to how birth

26 certificates are produced but the birth certificate has an

27 error in the spelling of Illouera Avenue and Mr Johnson

28 put to my client in cross-examination that the street

29 number was wrong and he said, "It's not number five but

30 it's number 12 that you lived at" and she more or less

31 agreed with him but

1.LL:CW 16/02/2009 FTR:2B 259 DISCUSSION

1 indicated that she wasn't too sure of the address number.

2 But the first thing I would ask Your Honour to take

3 account of is the birth certificate, whoever provided the

4 information - if it was my client who provided it she

5 would have provided it very shortly after the birth of

6 Illyana, very shortly after there was a resumption of

7 their relationship and the two errors that are in the

8 address, in my submission, are Mr Johnson's doing and I

9 ask Your Honour to look at Exhibit D which is the AMP

10 application.

11HIS HONOUR: Yes, I've got that.

12MR DEVRIES: If Your Honour looks at - well, firstly that

13 document - - -

14HIS HONOUR: It's the same spelling - it's not the same

15 spelling, it's a similar erroneous spelling of Illouera

16 Avenue though, isn't it?

17MR DEVRIES: Yes, it's got a "v" there or what could be taken

18 to be a "v".

19HIS HONOUR: "Illavera", yes, I follow.

20MR DEVRIES: It's got a "5" in the address. It is open for

21 that interpretation as to that, but more importantly this

22 home loan application is another document which puts

23 Mr Johnson - - -

24HIS HONOUR: Yes, you put that in counter don't you really?


26HIS HONOUR: Did he give any evidence as to who registered the

27 birth of Illyana?

28MR DEVRIES: He suggested it must have been my client.

29HIS HONOUR: But he didn't give direct evidence.

30MR DEVRIES: No, and more importantly, the birth certificate,

31 it's filling in, it's contents were never put to my

1.LL:CW 16/02/2009 FTR:2B 260 DISCUSSION

1 client.


3MR DEVRIES: Mr Johnson complains that I cross-examined him on

4 documents that hadn't been put through my client, but he

5 cross-examined my client on documents that he later

6 produced that he hadn't finished her evidence. But there

7 is also another document, Your Honour, which comes out of

8 his Exhibit 1G which is Mr Johnson's tenancy application.

9 I will hand that up to Your Honour. I haven't got a copy

10 myself. I had better take my instructor's flags off it

11 because they're not part of the document.

12HIS HONOUR: She didn't seem to answer - I'd asked him who'd

13 registered Illyana's birth, and at p.420 it doesn't

14 really seem to say or seem to know, but that is a

15 digression. You take me now, the tenancy agreement,

16 there's an extract from 1G.

17MR DEVRIES: Yes, which is one of Mr - - -

18HIS HONOUR: This is the tenancy application for 45 Nicholson

19 Street.

20MR DEVRIES: It is, Your Honour, and is one of the documents

21 that were tendered by Mr Johnson.

22HIS HONOUR: Mr Johnson, yes.

23MR DEVRIES: What you call the loot.

24HIS HONOUR: He has signed it.

25MR DEVRIES: He has signed it.

26HIS HONOUR: 5 Illouera Grove is his present address, and

27 missed the spelling.

28MR DEVRIES: Yes. If Your Honour would - sorry, I'm going

29 too fast.


31MR DEVRIES: If Your Honour will turn over the page you will

1.LL:CW 16/02/2009 FTR:2B 261 DISCUSSION

1 see a photocopy of the document that Your Honour has

2 already seen, and that's his driving licence, which also

3 puts his address at 5 Illouera.

4HIS HONOUR: Yes, and that's tendered actually.


6HIS HONOUR: That's one of the exhibits.

7MR DEVRIES: Yes, I will take you to it. I think that might be

8 Exhibit K, the learners permit, number 03268 - - -

9HIS HONOUR: This is a drivers licence which expires in June

10 2001 with obviously the sticker over it of Illouera Grove

11 misspelt.

12MR DEVRIES: Yes. Sorry to ask you a question, Your Honour,

13 does that have number 032685419 or - - -

14HIS HONOUR: 32685419.

15MR DEVRIES: That was his learners permit, Your Honour,

16 Exhibit K.

17HIS HONOUR: Thank you. I will just check. Could I have

18 Exhibit K please. No, it isn't, Exhibit K is a specific

19 permit.

20MR DEVRIES: Yes, sorry, it has the same number I understand

21 Your Honour.

22HIS HONOUR: No, it's different number. Exhibit K is

23 032685419. I see, yes, no you're quite right, I

24 apologise, it is the same number. Expiry 24 March 2009

25 is Exhibit K and that's a learners permit. You've got a

26 drivers licence which has the same number but I have a

27 feeling that licence is in - - -

28MR DEVRIES: It was, Your Honour. 48 I believe, Your Honour.

29HIS HONOUR: That was the one I think he pointed to that

30 although it had Illouera Grove it never had Queen Street.

31 Yes, I've got that. Yes, it's the same number but it

1.LL:CW 16/02/2009 FTR:2B 262 DISCUSSION

1 physically looks a bit different and it's got actually

2 with the sticker of the Endeavour Drive over the top

3 of it.

4MR DEVRIES: I think you deny that it ever had Illouera and we

5 were speculating as to what might have been under the

6 sticker.

7HIS HONOUR: But the real point you are making, in any event,

8 and this is an example of a document that not only has he

9 signed a document giving his address as Illouera Grove

10 but at that time he had his licence endorsed to Illouera

11 Grove, he did give evidence that he did actually endorse

12 his licence to then, to Illouera Grove, I think he

13 repeated that quite recently because he'd moved out of

14 his matrimonial home and had nowhere else to put.

15MR DEVRIES: He said in his address that he had asked my

16 client's permission to use her address which of course

17 wasn't put to her, but begged the question he had so many

18 other addresses she said he could have used. But there

19 is another aspect to that tenancy application, Your

20 Honour, that is extremely relevant, in my submission.

21 That is that he says that - sorry, that document was

22 dated 1 November 2000 and he said he had lived at

23 Illouera Grove.

24HIS HONOUR: For two years.

25MR DEVRIES: Upwards of two years, which puts it precisely at

26 the date that my client says they started, around about

27 Cup Day - sorry, 1998.

28HIS HONOUR: Late '98 she said.


30HIS HONOUR: It's interesting because that document allows for

31 how many years and how many months and he's just put the

1.LL:CW 16/02/2009 FTR:2B 263 DISCUSSION

1 two years.

2MR DEVRIES: He himself submitted to Your Honour that he was a

3 man who was very precise about what he did and everything

4 was very tidy and well documented and there is no doubt

5 from the bundles of exhibits that he was very organised

6 with his paperwork, and for that I envy him. There is

7 another document which he tendered in the pink folder

8 here.

9HIS HONOUR: This is from 1K is it you've just given me. I'm

10 sorry, 1G.

11MR DEVRIES: And 1G as well Your Honour.

12HIS HONOUR: Sorry, Mr Devries.

13MR DEVRIES: Got to keep your Tipstaff - that's one way of

14 doing it.

15HIS HONOUR: Keeping him moving, it's good for him.

16MR DEVRIES: That was in the same exhibit, Your Honour.

17HIS HONOUR: That's 1G is it?

18MR DEVRIES: Would it be convenient for Your Honour to have a

19 five minute break now?

20HIS HONOUR: Yes, look I'll do that, it's probably a good idea.

21 (Short Adjournment)

22HIS HONOUR: Yes, thanks, Mr Devries.

23MR DEVRIES: Your Honour, that document is interesting for two

24 reasons. One is on the second - - -

25HIS HONOUR: Now, this is also from Exhibit 1G.

26MR DEVRIES: Also from Exhibit 1G. Also one of Mr Johnson's

27 documents. It's significant, in my submission, because

28 of the nature of the document and also because on the

29 second page of the document it gives his residential

30 address as 5 Illouera Avenue as at August 2000. It

31 purports to be a table of assets and liabilities of both

1.LL:CW 16/02/2009 FTR:2B 264 DISCUSSION

1 Mr Johnson and my client and the only reason that one

2 would do that is if one was holding them out to be in a

3 partnership of some nature.

4HIS HONOUR: Now, 1G again, they were documents relating to one

5 of the properties - Point Cook, Dorrington Street, yes.

6 That must have been for the financing of the acquisition

7 of Dorrington Street, was it?

8MR DEVRIES: That's what the total - - -

9HIS HONOUR: The topic in that - - -


11HIS HONOUR: I wonder if I could have a look at that if I might

12 thanks, Mr Turnbull?

13MR DEVRIES: I have looked the thing on the – the dyno tape on

14 the spine which is how Mr - - -

15HIS HONOUR: Well that also, that says Point Cook, Dorrington

16 Street.

17MR DEVRIES: It would either be the financing or if there was

18 any improvements to the property - - -

19HIS HONOUR: Construction or something. But you wouldn't be

20 giving the joint assets except for finance and

21 construction probably of the house it would seem. Yes.

22 And again the unusual spelling of Illouera.

23MR DEVRIES: Yes, Your Honour.

24HIS HONOUR: Yes. Now, that comes from this document too,

25 does it?

26MR DEVRIES: It does, Your Honour, yes.

27HIS HONOUR: Yes, thanks.

28MR DEVRIES: Now, in my submission, that together with his

29 licence, the AMP application - and I think there's a

30 redirect, I have to check that, puts him fairly and

31 squarely at Illouera for two years up to the end of 2000.

1.LL:CW 16/02/2009 FTR:2B 265 DISCUSSION

1 And thereafter he moves to South Yarra and he makes

2 no - - -

3HIS HONOUR: And they both go to Gheringhap Street.

4MR DEVRIES: Gheringhap.

5HIS HONOUR: He says he went and the plaintiff did not.

6MR DEVRIES: And she's clearly given evidence that she did,

7 whilst maintaining the Illouera property which seems to

8 have been good sense on her part if they had a separation

9 (indistinct). But after Gheringhap there is that

10 property at 45 Nicholson Street, South Yarra.


12MR DEVRIES: Where he concedes that the gentleman who rides the

13 Clapham Omnibus would conclude they lived in a domestic

14 relationship.

15HIS HONOUR: Domestic relationship. He denies it but he says a

16 reasonable mind might come to a contrary view.

17MR DEVRIES: Yes. And that puts another two and a quarter

18 years at the relationship and again Nicholson Street is

19 consistent with his affidavit and his loan application

20 and if - that's consistent for those more than four

21 years, in my submission - - -

22HIS HONOUR: When you say loan application - - -

23MR DEVRIES: The AMP loan application which was Exhibit D.


25MR DEVRIES: That also had him at Illouera as his residential

26 address.


28MR DEVRIES: Exhibit C which is a driving licence had him

29 there. Your Honour, could I just have a look at

30 Exhibit G for one moment please? Exhibit G was one of

31 these cards he says is missing, but he puts his address

1.LL:CW 16/02/2009 FTR:2B 266 DISCUSSION

1 at - that's where he calls her his husband.

2HIS HONOUR: Husband, yes.

3MR DEVRIES: Her address is 5 Illouera.

4HIS HONOUR: 5 Illouera with a funny spelling again.

5MR DEVRIES: Yes, Your Honour. Your Honour, could I just have

6 a look at Exhibits H and O for one minute.

7HIS HONOUR: H and - - -

8MR DEVRIES: O, "O" for Oscar.


10MR DEVRIES: Exhibit O is the redirect mail from Queen Street

11 and Mr Johnson has explained it as, well, I needed to

12 redirect mail in case it was - - -

13HIS HONOUR: In case bills weren't paid.

14MR DEVRIES: Yes: "And I put down "Sutton Johnson", because

15 that would ensure that any business mail would be

16 redirected without me paying the additional amount for a

17 business redirection." Which is, in my submission, yet

18 another count against him on the credibility stakes. He

19 has admitted he is prepared to effectively defraud

20 Australia Post on redirection costs. But from my

21 client's point of view it is also evidence that the

22 family resided at Queen Street because of the references

23 to Sutton Johnson.

24 As my instructor quite rightly points out, that

25 redirection explanation was given by Mr Johnson this year

26 when he stepped back into the box and took the liberty to

27 reopen some of his earlier evidence, and it is in

28 contradiction to what he said about the same document

29 when he was cross-examined by me last year. Your Honour,

30 before we move totally away from Mr Johnson's affidavit

31 it behoves me to draw Your Honour's attention to first of

1.LL:CW 16/02/2009 FTR:2B 267 DISCUSSION

1 all transcript at p.697.

2HIS HONOUR: Last year I must say in re-examination at 969 -

3 before we get to that next reference - my note is in

4 relation to Exhibit O: "I redirected the mail from

5 Altona in case the utility bills went there which the

6 plaintiff did not hand over to me." Now, that is my

7 paraphrase, so he did give that explanation last year in

8 re-examination. You will recall after you cross-examined

9 him he then went through a number of points.

10MR DEVRIES: He also said: "Australia Post have a different

11 charge for mail direction depending whether it's

12 residential, business," and he says that - this is on

13 p.968: "Mail would be addressed to Sutton Johnson at

14 Queen Street." So it begs the question, apart from

15 utilities, there is no suggestion Sutton Johnson was

16 paying utilities.

17HIS HONOUR: That Sutton Johnson letter is addressed to Queen

18 Street.

19MR DEVRIES: That was his evidence on p.968.

20HIS HONOUR: That's of more moment, is it not?

21MR DEVRIES: Yes, Your Honour.

22HIS HONOUR: If he's not living there it's a curious thing to

23 do for a solicitor.

24MR DEVRIES: In all fairness I perhaps should read the whole.

25HIS HONOUR: Yes, I think you should.

26MR DEVRIES: It's a little bit confusing. "The reason I did

27 that was a) Mr Sutton Johnson was because some of those

28 premises, definitely not Queen Street, Altona mail to

29 Sutton Johnson will be directed to me. Australia Post

30 have a different charge for mail direction, you have got

31 - depending on whether it's residential or business."

1.LL:CW 16/02/2009 FTR:2B 268 DISCUSSION

1 And Your Honour says: "That's irrelevant. The question

2 is why did you redirect mail from Queen Street, Altona if

3 you had not been living there?" And he said: "Because

4 the utilities were in my name. There were occasions when

5 electricity bills would come and Ms Cressy just would -

6 she'd forget to hand over to me. Further on where it

7 says Mr Sutton, Mr James Sutton, I think it says in the

8 third line that's just a silly mistake. Of course it's

9 never been my name, it was meant to be Sutton."

10 And when we resumed this year, he – and then

11 takes us to it. It will take me a moment to find that

12 reference, Your Honour. He does say at p.1295 that, I've

13 written – it's at Line 11, "I've written down Mr James,

14 Mr Sutton James or something in that form the loan

15 application forms. I looked at it, it wasn't until I

16 looked at that I realised I wrote 45 rather than five. A

17 lot of these invites show these redirections. Only

18 Johnson or James Sutton." It says here that, "James

19 Johnson or Sutton Johnson mail was redirected. I had to

20 do that with all my properties. I had to do that

21 especially with Queen Street, Altona because all the

22 utilities were in my name. The water bills too in my

23 name." And he'd said that he's a water industry lawyer.

24HIS HONOUR: His explanation for that he says that he wanted to

25 make sure he got all the bills.

26MR DEVRIES: Yes, it's a bit confusing as to whether it's

27 Sutton Johnson there or not.

28HIS HONOUR: Yes, I agree with that. Now, I diverted you. You

29 were about to take me to a piece of transcript or

30 something.

31MR DEVRIES: I was about to, yes.

1.LL:CW 16/02/2009 FTR:2B 269 DISCUSSION

1HIS HONOUR: Yes, I'm sorry.

2MR DEVRIES: Your Honour, it was – this is at the bottom of

3 p.702 of the transcript. I've just lost my place, Your

4 Honour, I'm sorry. From p.702 there are some – a number

5 of pages I put to him specifically the various parts of

6 Exhibit F, including, "Their mother and I are no longer

7 in a relationship." The bottom of p.702, and since – the

8 bottom of p.703, "Since the respondent and I ceased

9 living together or partly living together I've continued

10 to support her." And, Your Honour says – asks him on

11 page – the top of p.704, Line 3, "Mr Devries asked you a

12 question. Is the first sentence at Paragraph 7 true?

13 Did you tell the truth there?" to which he replied, "Of

14 course, I told the truth, Your Honour. Yes, it's true."

15 And, then he sought to qualify that by saying, "I have

16 continued to support her until she moved out of the Point

17 Cook house."

18 At the top of p.706, I'd asked him, "The

19 question is that your perception in September 1997" that

20 should have been, I think, 2007, "of your relationship

21 with my client and her two sons and ultimately your

22 daughter was such that you could approach the court

23 seeking joint or equal shared time with respect to both

24 boys and equal share of parental responsibility with

25 respect to both boys. That's correct, isn't it?" And,

26 plus he said, he needed a change from his own word and

27 Your Honour stepped into the fray or into the argument

28 between Mr Johnson and I and said well, "The answer to

29 the question that in September 2007 he regarded those two

30 boys as his children" and he replied, "Your Honour, I

31 regarded Treece, Skye and Illyana as my children as much

1.LL:CW 16/02/2009 FTR:2B 270 DISCUSSION

1 as David, Dylan and Jessica" being children later

2 referred to as the Johnson children.

3HIS HONOUR: I notice he says at p.706 he even took Ms Cressy

4 and the children on an overseas holiday.

5MR DEVRIES: Yes, in the winter of – and we discussed adoption.

6 And, then he agreed that he described himself as the

7 "Father of Skye and Treece although in legal he's my

8 family lawyer for the purpose of these proceedings

9 described me as step-father", and over the page p.2, 707

10 Line 16, "The short answer is yes, yes you did refer to

11 yourself as Ms Cressy's husband and you say that was in

12 the period you lived together at South Yarra and the

13 period you lived together at Point Cook", to which he

14 said "Yes, yes", and that probably continued on after

15 they're not living on together.

16 QUESTION: "For how long did that continue on?",

17 ANSWER: "Look I don't know Your Honour. It would be

18 during the periods when things are running smoothly", as

19 much as he explained. QUESTION: "Well what period is

20 that, up to 2007 is it?", ANSWER: "No it wouldn't be

21 that far". I might point out Your Honour that even his

22 address to Your Honour he took issue when the separation

23 occurred saying it was Easter 2007 rather than what my

24 client said, later in 2007 and then he later referred to

25 that as one of the break points, whatever that might

26 mean.

27 And then we go onto him referring to himself as her

28 husband, husband, lover and friend, and then he tried to

29 qualify that p.708, "Yes, I describe myself in four ways,

30 as a husband, a lover, a friend and a pen pal we were

31 definitely not living together", and of course it's at

1.LL:CW 16/02/2009 FTR:2B 271 DISCUSSION

1 that time he starts using Sutton as part of his firm

2 name. And he has written an envelope with the name James

3 Cressy Sutton.

4HIS HONOUR: What was that, was that that exhibit you were

5 referring to?


7HIS HONOUR: Exhibit?



10MR DEVRIES: I might say in the ensuing pages there's a fair

11 bit of evidence on his part of his, he used the word

12 confusion and contention of the fact that my client

13 continued to work as a prostitute. I put to him that was

14 a point of contention between them and we then went on -

15 I then went on to ask some questions about the efforts he

16 went to to try and dissuade my client from continuing to

17 work as a prostitute. Your Honour I think at this point

18 perhaps I should, while we're on - talking about the

19 affidavit move on to first of all p.908 of the transcript

20 which is where he - sorry 907 first of all at the bottom,

21 this is where we talk about the labels on the driving

22 licence.


24MR DEVRIES: They were immediately beneath they would either be

25 my proof department, maybe but it was probably to

26 Dorrington Street, because the address on the licence

27 would have matched my banking documents and as I don't

28 check Dorrington Street, all of my mail would have been

29 directed to my GPO from 2 Dorrington Street. And he goes

30 on Line 12 of p.908, "Now if I may digress on to that

31 point only to say well, that is simply an address of a

1.LL:CW 16/02/2009 FTR:2B 272 DISCUSSION

1 residence that I have. One of the reasons for not

2 changing my formal address was VicRoads and the tax

3 offices for borrowing purposes, borrowers like to see

4 consistency in documents. They like to see you in, you

5 know, at least two years employment, or three years of

6 self employment and they like to see some stability in

7 your residential address, and as I owned a residence I

8 still even to this day don't think that if you have a

9 choice of residences to list changing things

10 unnecessarily means something in distinct you'd change",

11 there was a move from Nicholson Street, a bit further on,

12 "There was a move from Nicholson Street to Dorrington

13 Street, I still don't even, today 2 Dorrington Street,

14 when on that basis there's nothing to change".

15 And then we get to p.919 of (indistinct) transcript

16 which is his explanation of how Exhibit F came into

17 being. Your Honour asks him this, this is Line 7 of

18 p.919, "You've rightly identified that there appears to

19 be a discrepancy between the contents of your affidavit

20 and what you have been putting to this court. Can you

21 explain to me that you, as I understand it, told Ms Kelly

22 that you have put to this court, what you have put to

23 this court about your living arrangements and that based

24 on that she advised you the affidavit should take the

25 form that it's in. Is that what you're putting to this

26 court?"

27 And his reply: "The proviso that provided that I was

28 happy to swear my oath in," and indistinct words, "yes,

29 Your Honour, yes." Mr Johnson: "That is what I'm

30 putting." You asked: "Who actually drafted out for that

31 - actually wrote it out?" "Ms Kelly drafted it in front

1.LL:CW 16/02/2009 FTR:2B 273 DISCUSSION

1 of me," says Mr Johnson. You asked: "Yes, and you knew

2 the contents of it?" He says: "Yes." "And you were

3 content to depose as to the truth of it?" He says:

4 "Yes." And if I might just say to summarise Your Honour

5 goes on: "If it was untruthful would you have sworn it?"

6 He replies: "No, Your Honour." You ask him: "Am I

7 entitled to rely on that affidavit there of course being

8 the truth?" He doesn't respond, so Your Honour says:

9 "So I'm entitled insofar as it contains any admission

10 to regard those admissions by you as truthful admissions

11 on oath."

12HIS HONOUR: He gets line 11 to "high tide, low tide".

13MR DEVRIES: Yes: "Truth can be told it's in a broad range of

14 desorption, you can put the truth at its strong suit, put

15 the truth at its weakest remains the truth." I foolishly

16 tried to enter the fray at that stage, and I'm glad I

17 didn't.

18HIS HONOUR: It's an extraordinary attitude to telling the

19 truth by an officer of the court - by anyone - but by an

20 officer of the court who tries to profess to take the

21 oath he took as a barrister and solicitor 20 years ago as

22 of great import to him. Sorry, I interrupted your

23 submissions.

24MR DEVRIES: So we get there and having given that

25 extraordinary philosophical description of his attitude

26 to the truth he then says at the bottom of p.922, line 27

27 - sorry, line 14: "I am saying that what is in this

28 paragraph falls within the boundaries of truth." At line

29 27: "That was the point I was making, that the truth can

30 depend on the speaker, the recipient and the constraints

31 of the circumstances." And Your Honour asked: "Is that

1.LL:CW 16/02/2009 FTR:2B 274 DISCUSSION

1 your understanding of the truth?" He replies: "Yes,

2 Your Honour."

3 He tries to then avoid the blame for the affidavit

4 line 11, p.923: "The second point was about the original

5 application for Treece and Skye now that - as well as

6 Illyana. That was solely acting on Ms Kelly's advice to

7 me that I was the person interested in the welfare of the

8 two children and had standing to bring the application.

9 That went against my better judgment. I did that and it

10 went contrary to the free, casual off-hand advice I had

11 received from one other Family Law specialist. That was

12 the advice from a new credited Family Law specialist,

13 Ms Leanne Kelly, who I assumed to have expertise in the

14 area."

15 Ms Kelly was not called to give that evidence and

16 Your Honour can draw the inference that if she had been

17 called she wouldn't have given that evidence. With

18 respect, if I can adopt what Your Honour said, for

19 somebody who belabours the point that he's a barrister

20 and solicitor to this court, he has been such for nearly

21 20 years. I think he has used the word "honourable". He

22 did indirectly try to play the card well I'm the lawyer

23 so therefore you have got to accept what I say, against

24 someone who is not a lawyer, and said to Your Honour that

25 he sees that he has a higher duty to tell the truth than

26 an ordinary witness because of the oath that he swore.

27 For him to say that, Your Honour, and effectively to

28 say I will tell whatever truth is necessary to achieve

29 the end that I wish to obtain - that's what he says

30 there, that's what he said in respect to his various

31 applications for finance. That's what the lenders want

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1 to hear, that's what I'll tell them in terms of where he

2 lived, what his financial situation was. And he quite

3 clearly conceded that his AMP - I think it was his AMP

4 application, one of his later financial applications was

5 inherently inaccurate.

6 So that brings me back to the respective credit of

7 the two parties. There is what I have just drawn Your

8 Honour's attention to. There are the finance documents.

9 There is his behaviour in court. There are the mistruths

10 that he deliberately told the court during his address,

11 all of which in my submission militate against Your

12 Honour preferring his evidence where it contradicts my

13 client's evidence.

14 There is probably a further limb to that, if there

15 was anything necessary. Your Honour at one stage - and I

16 can take Your Honour to the transcript references if

17 necessary - Your Honour at one stage sought to give him a

18 warning in respect to his taxation documentation and he

19 declined that and said, I feel I'm safe, but he seemed to

20 concede in his evidence that he hadn't been extremely

21 frank with the Australian Taxation Office either, or

22 VicRoads he would have us believe. So for all those

23 reasons I submit that Your Honour, with respect, should

24 find that there was a relationship between the parties

25 through the period late 1998 to approximately August -

26 sorry, May 2007. Your Honour, I was going to take you at

27 this stage, whilst we're still on the relationship, to

28 the legislation, the Property Law Act.

29HIS HONOUR: Before we go there, is any other evidence, apart

30 from Exhibit O, that supports your client's evidence that

31 they were in a relationship at Queen Street? That was

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1 one of the points being constantly made by the defendant.

2 He did himself say he did stay there overnight twice

3 every fortnight or something, so it wasn't as though he

4 completely cut his ties, even on his version of events.

5MR DEVRIES: And he has continued to support the family and my

6 client's evidence which she really wasn't challenged on

7 and his affidavit. His affidavit in fact takes the

8 relationship up to a month longer than she does. What I

9 submit is that - - -

10HIS HONOUR: He also did say that he had been planning to go

11 away on a holiday with the plaintiff in April 2007 for

12 Easter.

13MR DEVRIES: Yes, Your Honour.

14HIS HONOUR: When that fell through he went away with one of

15 his girlfriends or something, but that would seem to

16 indicate some level of the relationship still going at

17 that time out of his own mouth.

18MR DEVRIES: Yes, absolutely, Your Honour. I am just going to

19 briefly take Your Honour to the definition of domestic

20 relationship in s.275 of the Property Law Act as it then

21 was. Parliament has assisted Your Honour by saying that:

22 "In determining whether domestic relationship exists or

23 has existed all the circumstances in the relationship are

24 to be taken into account, including any one or more of

25 the following matters as may be relevant in the

26 particular case." Does Your Honour have - - -

27HIS HONOUR: I've got it.

28MR DEVRIES: "A) the duration of the relationship," and

29 Mr Johnson and my client both put it at nine years with a

30 couple of one or more short separations. "The nature and

31 extent of the common residence." In my submission the

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1 evidence clearly points to him living at the same

2 residences, different ones at different times but

3 continually with a couple of short separations between

4 the end of 1998 and April, May or June 2007. There was a

5 sexual relationship. He says an intermittent, not very

6 frequent sexual relationship.

7 My client was never asked any questions by him on

8 that, but it was a sufficient sexual relationship to give

9 rise to the birth of Illyana. "The degree of financial

10 dependence or inter-dependence and any arrangements made

11 for financial support between the parties." He says I

12 provided her and the family and her mother with extensive

13 support right through and continuing. My client says we

14 had a joint arrangement where he provided mortgage and

15 utility payments and I paid the housekeeping. So either

16 way on either count there is a degree of financial

17 dependence or inter-dependence.

18 "The ownership, use and acquisition of property."

19 At this stage it's the use of the properties that I rely

20 upon. Mr Johnson is correct when he says that all of the

21 properties are in his name. Where he is incorrect is

22 saying that's the end of it, you should look at the legal

23 title. If that was correct, as he submitted it, then why

24 do we have Part 9 to the Property Law Act and the

25 equivalent provision s.79 and so on of the Family Law

26 Act.

27 "The degree of mutual commitment to a shared life."

28 That depends on whose account of the evidence Your Honour

29 accepts.

30 "The care and support of children." That was

31 belaboured extensively by Mr Johnson that he went to

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1 great lengths, he says, to care and support not only his

2 child but the other two children. "The reputation and

3 public aspects of the relationship." Mr Johnson says

4 there was no evidence of that. My submission is apart

5 from anything else there was all the joint family

6 memberships, that's holding out to those people. There

7 was the going out on those excursions together. I will

8 address Your Honour as to the evidence of Ms Dek-

9 Fabrikant afterwards.

10 So, in my submission, there is evidence that each of

11 those factors militates in favour of the relationship

12 that the parties had being a domestic relationship for

13 the purposes of the legislation and I was hoping then to

14 move on to contributions. I'll spend a few moments - - -

15HIS HONOUR: Well, it's up to you, Mr Devries - - -

16MR DEVRIES: I may as well, Your Honour.

17HIS HONOUR: You can use the time we ought to.

18MR DEVRIES: Yes, yes. I can't sort of cut time short and then

19 criticise Mr Johnson for doing the opposite. Your

20 Honour, the contributions that are alleged, sorry, that

21 are asserted by the plaintiff to have been made to the

22 relationship cover a number of categories. There's the

23 contribution as homemaker and parent. If there was a

24 relationship, on Mr Johnson's evidence, there could only

25 have been one principal homemaker and parent and that was

26 my client because he says, "I was never there. I was

27 only a visitor. Yes, I did help with a bit of washing-up

28 from time to time, yes I did." And, it's undeniable that

29 he must have done some parenting tasks to get to the

30 relationship that he had with the children but he hasn't

31 performed any of those tasks since the separation because

1.LL:CW 16/02/2009 FTR:2B 279 DISCUSSION

1 – sorry, he did for a short time and then there have been

2 court orders that prevent him having that and doing that.

3HIS HONOUR: But, your real evidence – your real point is, if

4 there was a relationship then they're almost heatedly ad

5 idem that it was your client who bore the principal

6 burden of being the homemaker and parent.

7MR DEVRIES: Yes and she says because he was out working long

8 hours and earning the substantial income that he earned.

9 He says, well – on his evidence, he couldn't have done

10 much because he wasn't there. There is a consistency

11 between the two parties on the long hours that Mr Johnson

12 worked. Where the inconsistency lies is where he lived

13 when he wasn't putting in those long hours. She says,

14 "He lived with us."

15HIS HONOUR: I must say, it made me curious as to why he's

16 complaining about not getting much sleep during this case

17 given the evidence as to the very long hours he's given

18 to work.

19MR DEVRIES: Yes, Your Honour.

20HIS HONOUR: I just make that observation in passing.

21MR DEVRIES: I – as tempted as I am from time to time to play

22 the man - - -

23HIS HONOUR: No, I grant you that.

24MR DEVRIES: With respect, I'll resist the temptation to - - -

25HIS HONOUR: Well, no I agree with that but - - -

26MR DEVRIES: I - - -

27HIS HONOUR: At least, I didn't detect any undue fatigue with

28 Mr Johnson and his presentation of the case.

29MR DEVRIES: It can't be denied, Your Honour, that when we get

30 towards the end of the day it's fatiguing for everyone.


1.LL:CW 16/02/2009 FTR:2B 280 DISCUSSION

1MR DEVRIES: And, given that on Friday he was on his feet for

2 the whole day, having been on his feet for half a

3 day - - -

4HIS HONOUR: Wednesday.

5MR DEVRIES: The same the day before that – it's undeniably

6 tiring and I would be - - -


8MR DEVRIES: - - - exhausted if I had to be still going at the

9 end of today. I hope I won't be, Your Honour but much to

10 my instructor's surprise, we will be back after lunch.

11HIS HONOUR: Yes, well I've detained you in that digression but

12 you started outlining the contributions - - -


14HIS HONOUR: - - - by your client. The first one is homemaker

15 and parent. It's probably a useful time to break - - -

16MR DEVRIES: If it's convenient, Your Honour.

17HIS HONOUR: It's one o'clock, yes. Thanks Mr Devries. If we

18 do spill into tomorrow, would it be inconvenient if we

19 started at 10 or is that difficult for you?

20MR DEVRIES: That won't be inconvenient, I just don't expect to

21 be going - - -


23MR DEVRIES: - - - beyond today, Your Honour.

24HIS HONOUR: No, well. Thanks, we'll resume at 2.15 then,

25 thanks.



1.LL:CW 16/02/2009 FTR:2B 281 DISCUSSION