Brothel Gate Day 2 Full Day

1HIS HONOUR: Mr Devries?
2MR DEVRIES: May it please Your Honour, this matter, at
3 present, is still proceeding. So, Your Honour.
4HIS HONOUR: Yes.
5MR DEVRIES: Your Honour, as foreshadowed last night, I sought
6 a ruling from the Ethics Committee as to whether I could
7 - or ought to continue in this matter.
8HIS HONOUR: Yes.
9MR DEVRIES: I also advised my client that she should seek
10 independent legal advice on the same matters with regard
11 to both my instructors and I. Although she is also a
12 defendant to Mr Johnson's counterclaim, she has not been
13 provided with or served with a copy of the document, or
14 otherwise provided with details of its contents, I'll
15 come back to that in a moment, Your Honour.
16HIS HONOUR: Yes.
17MR DEVRIES: The need for me to clarify my position made it
18 impossible for me to give her copies of a document that
19 extends to well over 200 pages, if you include the
20 attachments to the documents, that he - the defence and
21 counterclaim, Your Honour, is 156 pages, and it has, I
22 think, about eight - - -
23HIS HONOUR: This is in the other proceeding?
24MR DEVRIES: In the other proceeding.
25HIS HONOUR: Yes.
26MR DEVRIES: And it may well be, Your Honour, that she needs to
27 read that document in its entirety before she makes the
28 necessary decisions. Sorry, Mr Johnson doesn't appear to
29 be ready, Your Honour.
30MR JOHNSON: Your Honour, I have a medical condition which
31 prevents me from being able to sit down, I would like to
1.MI:SK 03/12/08 FTR:1 131 DISCUSSION

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1 raise it as a housekeeping matter.
2HIS HONOUR: Well, Mr Devries - - -
3MR JOHNSON: I know, simply forgive me, Your Honour, I can't
4 sit down, I'm in too much pain.
5HIS HONOUR: Yes, well, you may stand, if you wish to.
6MR JOHNSON: Thank you, Your Honour.
7MR DEVRIES: He seems to be shuffling around and preparing
8 himself, which is very distracting to me, Your Honour.
9HIS HONOUR: Well, I agree with that, court starts at 10.30,
10 Mr Johnson.
11MR JOHNSON: I'll explain my medical - - -
12HIS HONOUR: And my practice - - -
13MR JOHNSON: - - - I do apologise.
14HIS HONOUR: My practice is to come onto court at 10.30 at the
15 appointed hour.
16MR JOHNSON: I do apologise, Your Honour, and I'll explain the
17 circumstances - - -
18HIS HONOUR: Yes, well, Mr Devries is outlining to me matters
19 pertaining to his condition, or his position, are you
20 able to listen attentively for that?
21MR JOHNSON: Yes, Your Honour.
22HIS HONOUR: Thank you, Mr Devries.
23MR DEVRIES: In the meantime, Your Honour, I've received an
24 interim ruling from the Ethics Committee, enabling me to
25 continue to act if that is the wish of my client and my
26 instructors as best they advise. The process of getting
27 a final ruling is underway, Your Honour. I had to - one
28 of the conditions of the interim ruling is I had to make
29 an application for a final ruling, do that overnight,
30 that's been emailed to the Ethics Committee, and
31 obviously, if the final ruling is different to the

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1 interim ruling, then I'll have to reconsider my position.
2 Now, the preferred option of the Ethics Committee was for
3 me to have made an application to have the counterclaim
4 struck out before I counterclaim the other matter struck
5 out before I proceeded further with this matter, but that
6 would have entailed me providing an affidavit, and -
7 which could have been done within time, but my counsel of
8 choice would not have been available til this afternoon,
9 and, of course, we would have had to have found a member
10 of this honourable court who could have - - -
11HIS HONOUR: You'd have to make the - you'd have to make
12 appropriate application, serve it. What, in the other
13 proceeding, you would be seeking to have the counterclaim
14 struck out.
15MR DEVRIES: Counterclaim as against me struck out.
16HIS HONOUR: Yes, well, that may take time, I mean that has to
17 be subject to a hearing.
18MR DEVRIES: Yes, now, that was a preferred option, but, of
19 course, that can't be done, Your Honour. Now, Your
20 Honour, I have to say that if I'd been graced with a copy
21 of the document earlier in the proceeding than I was, I
22 would have handed it up to Your Honour as part of my
23 application, or part of the submission on the question of
24 the appointment for litigation guardian. However, that
25 decision had been made by Your Honour before I received
26 the document. Now, it has to be put on the record, Your
27 Honour, that this giving to me of the document happened
28 in the context where Mr Johnson had successfully got my
29 predecessors, and my instructor's predecessors, to
30 disqualify themselves from acting for my client.
31 Although I've been put on notice of its contents, I

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1 have not been properly served with the document, nor do I
2 accept service of it in a manner that it was given to me.
3 It was given to me, Your Honour, in a context when I
4 asked for a copy of the application in the other matter,
5 in order to see how that matter related to this matter.
6 I have still not been provided with a copy of the
7 application in the other matter. It is relevant to this
8 proceeding, because it may be relevant to the relief,
9 with respect, available to Your Honour. Also relevant,
10 Your Honour, is that whilst a number of the other
11 defendants to that counterclaim were present in court,
12 and some still are, none of them were provided with the
13 document, only I was provided with the document.
14HIS HONOUR: In other words, the counterclaim hasn't been
15 served.
16MR DEVRIES: No, it's not been served on me, nor - - -
17HIS HONOUR: It's not been served on anyone?
18MR DEVRIES: Nor or anyone else, to my knowledge.
19HIS HONOUR: How many defendants are there to - - -
20MR DEVRIES: Thirteen defendants, Your Honour, including the
21 Attorney General of the State of Victoria, the Minister
22 for Human Services, Dr List, and I'll come back to
23 Dr List, myself, my instructors, my clerk, Mr Hanlon, his
24 firm, I think - I'm not sure if I mentioned Federal
25 Magistrate O'Dwyer. It also seeks relief against the Law
26 Institute of Victoria, who's not mentioned. It also
27 joins the Legal Services Commissioner.
28 When Mr Johnson made his application to you for
29 consolidation of that matter with this, he never told
30 you, Your Honour, that it included a defensive counter
31 claim which included myself and other people in this

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1 court as defendants. He didn't alert Dr List to the fact
2 that vile accusations were made against Dr List in that
3 defence account claim before he went in the witness box.
4 Your Honour may draw, I submit appropriate inferences
5 from that.
6 Some of the relief sought by Mr Johnson in his counter
7 claim in that matter appears to overlap some of the
8 relief sought by him in this matter. Now, the document
9 makes a number of allegations against me, Your Honour.
10 They're serious. I take them very, very seriously. Each
11 and every allegation that is made however is baseless and
12 without foundation and as I've indicated, the first
13 available opportunity, I will move to strike out the
14 counter claim against me and I suspect that most of the
15 other defence counter claim may well do the same thing.
16 It's timing, it's provision to me alone, was designed and
17 was successfully designed to distract me from doing my
18 job and to - and it was designed to prevent my client
19 from having effective representation. It was and is
20 nothing more than a tawdry attempt to nobble me as
21 counsel for the client and I'd submit that in those
22 circumstances, it may well be a contempt of this court
23 and insofar as it's provision to me and the circumstances
24 provided to me, extends the length of the hearing in this
25 court, I'll be seeking a result and costs order from
26 Mr Johnson and I'm sure my learned friend may well do the
27 same thing.
28 Now, the situation with regard to my client, Your Honour,
29 is something that concerns me very greatly. My client
30 hasn't seen this document yet and that's partly my fault
31 because I was concentrating on my own position first, but

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1 amongst the accusations, it makes - it goes to my
2 physical, mental and professional capacity. It accuses
3 me of being infirm - and that's the word that's used -
4 suffering from dementia, suffering from hearing loss,
5 incompetent, unethical, slippery and so on, that's one
6 category of complaints against me. The other category is
7 that I've defamed Mr Johnson in making complaints to the
8 legal services commissioner and that I am part of what he
9 calls the "Debris buried terminable conspiracy to
10 blackmail."
11HIS HONOUR: Has the document been filed in court?
12MR DEVRIES: Yes, the copy I've got is an original filed copy.
13 Now, Your Honour, the concern I have with respect is that
14 my client needs to read that document. She doesn't wish
15 to read that document at this stage, but she needs to
16 read it. She needs to - or she should - she's been urged
17 to get independent legal advice as to whether she should
18 continue having myself and my instructors represent her.
19 If there is any basis to the allegations of infirmity on
20 my part, and I deny each and every one of those, but if
21 there is, that's something she needs to consider and she
22 needs to consider whether there is any basis for it. She
23 doesn't wish to do that at this moment. She wishes this
24 matter to continue until completion. My concern is that
25 that isn't - that may not be the appropriate action for
26 her and at the very least, she needs to read this lengthy
27 scurrilous document. I had a discussion with my
28 instructor in the briefest of discussions with my learned
29 friend before the other defendants to the counter claim
30 and this matter in our opinion, certainly my opinion,
31 after discussing with them and I think they would agree

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1 with me has every sign of not being capable of being
2 completed within the two days that was allowed for it.
3 That's absolutely impossible in my opinion.
4HIS HONOUR: That's quite clear. Even if the parties remain
5 relevant, I would have thought it's about a three day
6 case. But we've already lost a day.
7MR DEVRIES: Yes, and more importantly Your Honour, I don't
8 believe with - in with the - very best of control - and
9 I'll tell you this with the greatest of respect. Even
10 with the very greatest of control from the Bench that
11 Mr Johnson will be confined to a time limit in his own
12 evidence and in cross-examination of my client, it would
13 enable this matter to finish by Friday in any case.
14 However, Your Honour, I don't want to lose the time and
15 costs we've already spent on this matter.
16HIS HONOUR: Well, the first question really arises, concerns
17 your own position. Now, I understand the ruling from the
18 Ethics Committee is that you, at the moment, the interim
19 ruling is that you may continue to act if that is the
20 wish of your client. Your concern though is that your
21 client ought to express that wish in an educated way? In
22 other words, having had a look at the allegations made
23 against you, as to whether she - whether she still wishes
24 to continue with you acting on her behalf. Is that your
25 concern?
26MR DEVRIES: It is my concern and in an educated way, meaning
27 also an informed but I can't inform her.
28HIS HONOUR: No. She'll need independent advice.
29MR DEVRIES: She should get independent legal advice.
30HIS HONOUR: It may be with the scheme that the Bar has at the
31 moment, they may be able to make someone available who'd

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1 give independent advice to her reasonably quickly on that.
2 But do you - what do you submit I should do, having drawn
3 these matters to your attention? Do you wish to have
4 time so your client can read the document and get advice?
5MR DEVRIES: Well, certainly she must read the document Your
6 Honour, but she's reluctant to do so and I can understand
7 why, but she must read the document and I think I can
8 make arrangements for summary from the Bar's pro bono
9 scheme to give her a little bit of time.
10HIS HONOUR: Yes. Your concern is that you're not going to -
11 is that you're concerned that you should not continue in
12 this matter unless and until your client's had
13 independent advice? Is that what you're putting to me?
14MR DEVRIES: Unless she's had - yes - opportunity to read this
15 and to give serious consideration to getting independent
16 legal advice. I can't force her to get independent legal
17 advice, but I stress to her and have stressed to her the
18 importance of doing so because if she doesn't, she may
19 have cause to regret that in the future and that can't be
20 allowed to happen.
21 But the difficulty she has Your Honour and she's been
22 quite frank about this is if Mr Johnson succeeds in his
23 attempts to remove me and my instructors, she'd probably
24 at the end of the line of getting other representatives
25 because while she could probably force through the cab
26 rank well a member of counsel to act for her, she can't
27 force the solicitor to take on what has become an
28 extraordinary poisoned chalice. Any lawyer who takes
29 this matter on or any representative who takes this on,
30 inevitably will be the subject of what we've been the
31 subject of at the hands of Mr Johnson.

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1HIS HONOUR: Well I hear what you put Mr Devries and I'm
2 concerned about this development but what is it that you
3 submit I should do at the moment? At the moment we're
4 part heard in this trial.
5MR DEVRIES: Your Honour at this moment I'd seek you to stand
6 it down for my client to read this - - -
7HIS HONOUR: Yes.
8MR DEVRIES: - - - and to see if I can organise some
9 independent legal advice for her.
10HIS HONOUR: When do you anticipate you'll get a final ruling
11 from the ethics committee? Have they given you any
12 indication?
13MR DEVRIES: No indication whatsoever. The email went to the
14 secretary last night. She would have gotten it when she
15 came in this morning. I don't know how quickly they
16 work. They would probably consider it a fairly complex
17 matter. Can I say Your Honour I'm not concerned about
18 that part of it because whilst the interim ruling is in
19 place, I can continue to act.
20HIS HONOUR: Well I follow that, but your concern both as a
21 matter of your own professional ethics but also it seems
22 to be indicated in the interim ruling that your client,
23 with that ruling is subject to the wishes of your client
24 and your concern is your client can't properly express
25 her wishes without having read the document and getting
26 independent advice. I can understand that position. It
27 would seem to me appropriate to stand the matter down.
28 I'll hear from Ms Sofroniou and Mr Johnson in a moment.
29 How long do we need to stand it down for?
30MR DEVRIES: Probably a couple of hours Your Honour.
31HIS HONOUR: Yes.

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1MR DEVRIES: Because it's 156 pages - - -
2HIS HONOUR: I understand that. I must say my concern is
3 whatever's going on, we've got properties that I
4 understand are also bid to mortgages. Any delays in this
5 case are going to defeat the interests, not just of the
6 plaintiff but of the defendant.
7MR DEVRIES: What I'd be submitting - - -
8HIS HONOUR: And that needs to be borne steadily in mind that
9 any disturbance of the position of the plaintiff's
10 counsel would, I would think, be detrimental to his
11 interests.
12MR DEVRIES: What I was going to submit to Your Honour with
13 respect was - if this matter can't proceed.
14HIS HONOUR: Yes.
15MR DEVRIES: For whatever reason, whether we haven't got enough
16 time to finish this week or because of my client's
17 position that Your Honour make interim rulings about what
18 happens to the properties and the basis for that would be
19 Mr Johnson's application - - -
20HIS HONOUR: Application, I hear you. I hear that. Well we
21 might be able to do that. Well what do you suggest at
22 the moment? Stand it down for a couple of hours?
23MR DEVRIES: Stand it down. Perhaps to half past 12 so we all
24 know where we stand before lunch Your Honour.
25HIS HONOUR: I follow that.
26MR DEVRIES: Lunch Your Honour.
27HIS HONOUR: I'll hear from Mr Johnson and Ms Sofroniou.
28MR DEVRIES: May it please Your Honour.
29MR JOHNSON: Thank you Your Honour.
30HIS HONOUR: I'm sorry, Mr Devries. When was the document
31 filed? This counter claim? When does it appear to being

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1 filed in the court?
2MR DEVRIES: I believe it was 21 November and again why it
3 wasn't served before that Your Honour - - -
4HIS HONOUR: Well I understand that.
5MR DEVRIES: - - - is a matter that Your Honour might take into
6 account.
7HIS HONOUR: Yes I understand that.
8MR JOHNSON: Thank you Your Honour. I, I'll - there's
9 obviously a lot of issues raised there that we need to
10 discuss and I'll try to do so quickly.
11HIS HONOUR: Well there's not a lot raised. At the moment the
12 question - the application before me is that the matter
13 be stood down for a couple of hours. It would seem given
14 the position of Mr Devries due to this counter claim
15 coming to his attention that I have no alternative and to
16 give the plaintiff the opportunity to obtain proper
17 independent advice about Mr Devries' position.
18MR JOHNSON: Yes. Your Honour I'm just going to request that
19 the matter be stood down at one o'clock in the afternoon
20 on medical reasons.
21HIS HONOUR: Yes.
22MR JOHNSON: Maybe I can address this point first. I was - I'm
23 sitting uncomfortably in the chair, I'm not sure if you
24 noticed the cushion yesterday Your Honour and I have been
25 basically unable to lie down or sit down through most of
26 the evening. I have a doctor's certificate from my local
27 GP.
28HIS HONOUR: Yes, well have you shown a copy of it to - - -
29MR JOHNSON: I haven't but I do have photocopies. Forgive me,
30 it's painful for me to move. And I have an original
31 which presently I make available to you Your Honour.

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1HIS HONOUR: Yes.
2MR JOHNSON: What the - it's a doctor's certificate saying I'm
3 unfit for work today, that I have a muscular condition in
4 my lower back and I require further assessment today. My
5 local GP advised me to have my back looked at in
6 casualty, but the earliest I can arrange to do that is
7 1.30 this afternoon in any case. Firstly let me say I
8 have no desire or wish for Mr Devries or his instructor
9 to step down in the current proceedings. I believe even
10 with this medical condition, which I'm hoping will be
11 resolved this afternoon I was hoping we might finish by
12 Friday of this week in the current proceeding and we'll
13 certainly be finished by Monday. My - - -
14HIS HONOUR: You told me yesterday to take three weeks.
15MR JOHNSON: Yes but Your Honour the case management that we've
16 applied here is that really it's just a question of what
17 were Ms Cressy and what were my living arrangements over
18 the past decade and to what extent was there an
19 overlapping.
20HIS HONOUR: The contributions - - -
21MR JOHNSON: And a question of applications and source of
22 moneys and a tying those to properties.
23HIS HONOUR: Well I agree if we - - -
24MR JOHNSON: That could be done very quickly Your Honour.
25HIS HONOUR: All right well - - -
26MR JOHNSON: Your Honour if we were to lose this afternoon and
27 stay all of tomorrow morning I'm 99 per cent confident we
28 would finish comfortably before close of court hours on
29 Monday afternoon.
30HIS HONOUR: So this was a muscular condition is it?
31MR JOHNSON: Yes he's not - because of my tenderness my doctor

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1 wasn't able to examine me properly. I put - - -
2HIS HONOUR: Is this muscular or something else? It doesn't
3 look to me like muscular at all. Medication condition?
4MR JOHNSON: No, no. It's muscular - it is hard to read his
5 reading isn't it?
6HIS HONOUR: It looks more like a - that's why I asked. It
7 looks more like medication to me.
8MR JOHNSON: He did have a waiting room of people even at eight
9 o'clock this morning.
10HIS HONOUR: Which doctor did you see?
11MR JOHNSON: Dr Caskasubo. I'm certainly not on any medication
12 Your Honour. I'm just concerned that it may be a tissue
13 problem, not a spinal problem, as I originally thought it
14 was. I thought I'd wrenched my back lugging all the
15 paperwork over in my briefcase (indistinct) yesterday.
16 So, Your Honour, I think that even if we did stand the
17 matter down for all of this afternoon and even all
18 tomorrow morning, we should still finish
19 comfortably - - -
20HIS HONOUR: I won't be standing it down for tomorrow morning.
21MR JOHNSON: OK, Your Honour.
22HIS HONOUR: Most I'd do is stand it down this afternoon and
23 see how you went then.
25HIS HONOUR: I'll stand the matter down to 2.15, I'll hear from
26 Ms Sofroniou, but I will not stand it down beyond then.
27 In the meantime, you rest your condition.
28MR JOHNSON: I have to go to casualty hospital, which I can't
29 do til 1.30, Your Honour. I won't be - - -
30HIS HONOUR: Which hospital are you intending?
31MR JOHNSON: St Vincent's.

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1HIS HONOUR: Well, can't you attend there sooner than that?
2 You could go there now?
3MR JOHNSON: I need some assistance, because I can't get into a
4 vehicle, I can't get into a sitting position.
5HIS HONOUR: How did you get to court?
6MR JOHNSON: I walked very slowly, Your Honour.
7HIS HONOUR: Yes, well - - -
8MR JOHNSON: I apologise for my lateness.
9HIS HONOUR: I'm sure you'll be able to get to St Vincent's,
10 which is not very far away. Ms Sofroniou?
11MS SOFRONIOU: As a fellow sufferer, Your Honour, I can say
12 that the 96 tram that one stands in is a very convenient
13 way of travelling, because I've had to do it myself, and
14 the benefit is you can stand up, and the 96 goes outside
15 St Vincent's, so that might be of some assistance by Your
16 Honour. As to the matters Your Honour raises, of course,
17 we're in the court's hands. I understand the position of
18 my friend. We're unclear as to the timing of the joinder
19 of all of these parties.
20HIS HONOUR: Yes.
21MS SOFRONIOU: One suggestion, I certainly wouldn't assume that
22 the court could enforce this, is I don't understand why
23 the parties that potentially can act as a nobble, as my
24 learned friend has put it, even if it's not intended that
25 way, why they're joined now? The other matter hasn't
26 been heard, nothing's - it hasn't been served, if my
27 friend chose to discontinue or withdraw the claim,
28 insofar as it related to my friends, they would be
29 permitted to - - -
30HIS HONOUR: Which friend are you talking about?
31MS SOFRONIOU: My learned friend, Mr Devries, and his

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1 instructing solicitor.
2HIS HONOUR: So - but if the defendant discontinued those
3 claims against him, is that what you're putting?
4MS SOFRONIOU: Yes, that would mean that no ruling were
5 required.
6HIS HONOUR: I agree.
7MS SOFRONIOU: It would be done reserving his rights, if it
8 became appropriate, to make any pleading he's entitled
9 to. It would mean that any sense that there was some
10 intimidation or nobbling going on would disappear.
11HIS HONOUR: Yes.
12MS SOFRONIOU: And that may be - - -
13HIS HONOUR: That would resolve the issue, we could hear the
14 case subject to Mr Johnson getting medical treatment.
15MS SOFRONIOU: And Mr Johnson himself would be free of the -
16 what he would say unfair suggestion that he's trying to
17 intimidate, because it would go away.
18HIS HONOUR: Yes, I hear what you say, Ms Sofroniou. The
19 matter's in your hands, Mr Johnson, as to what you do
20 with this counterclaim that you have filed in the court.
21 One thing that will occur is that I remain seized to this
22 matter, and this case will be heard. So whatever occurs,
23 this case will be heard come what may, that's the first
24 thing. The second thing I think you need to bear very
25 steadily in mind is that any delay in this case, on my
26 reading, purely of the pleadings, is causing you more
27 harm than anyone else.
28MR JOHNSON: Yes, sir.
29HIS HONOUR: Now, it seems to me it's in - it's as much your
30 interest as anyone else that this case gets heard and
31 determined quickly.

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1MR JOHNSON: Yes.
2HIS HONOUR: You need to focus steadily on that. Anything that
3 disturbs the ability of the plaintiff's practitioners to
4 act on her behalf, I strongly suspect, will simply cause
5 you difficulty. Now, that's a matter for you, but you're
6 here unrepresented, and it behoves me to say that to you.
7MR JOHNSON: Excuse me, Your Honour.
8HIS HONOUR: What is the nature of this condition? Are you on
9 medication at the moment?
10MR JOHNSON: No, no, no medication, Your Honour. It's - I
11 thought I'd wrenched my spine with all the paper weight
12 in this case yesterday, but it turns out it may be
13 muscular or tissue. My local GP wasn't able to examine
14 me properly, he said, "You need to get off to St
15 Vincent's quick smart", which is what I'm organising.
16 Your Honour, may I just clarify, the - in the new
17 proceedings, I have - sorry, I have served the defence
18 and counterclaim, but only on the plaintiff in those
19 proceedings.
20 I did that this morning, I felt that I was - nobbled is
21 not really the prettiest word to use, but I did feel that
22 the orders that Mr Justice Cavanough made on 20 June,
23 while they were extant, prohibited me from taking a step
24 in this level of communication with my mortgagee. I was
25 also fortified by - I'm fortified by the interim ruling
26 that Mr Devries has got from the ethics section of the
27 Bar counsel, if I've described that correct, and also by
28 his statement to Justice Cavanough on 20 June that - - -
29HIS HONOUR: All right, well, what I'm going to do, because
30 time is getting away, I'm going to stand the matter down
31 to 2.15. You can seek what treatment you need.

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1 Mr Devries, you can try and obtained some independent
2 advice for your client, I'm not going to lose the day,
3 this court simply can't afford that, we have a lot of
4 urgent cases on our hands, a lot of deserving cases on
5 our hands, and we can't afford to have judges sitting
6 idly. I will adjourn the matter til 2.15.
7MR DEVRIES: Just before we do, sir, can I just raise two very
8 quick matters? One is I reiterate my request for
9 Mr Johnson to provide me with a copy of the originating
10 process in that other matter, which I still haven't got.
11HIS HONOUR: So that's the written statement of claim?
12MR DEVRIES: Written statement of claim or originating motion,
13 I'm not sure how it's started, and secondly, Your Honour,
14 I thank my learned friend for her suggestion as a way
15 out.
16HIS HONOUR: Yes.
17MR DEVRIES: It - if - unless Mr Johnson was to withdraw
18 permanently, the threat would still be hanging over my
19 head, and the problem would still be there.
20HIS HONOUR: I follow that, and I can do nothing about that.
21MR DEVRIES: Yes.
22HIS HONOUR: Other than to request Mr Johnson to provide to
23 Mr Devries a copy of the writ and the statement of claim
24 in the other proceeding.
25MR JOHNSON: I shall do so as expeditiously as I'm able, Your
26 Honour.
27HIS HONOUR: Yes. The matter, I think, was before Master Daly
28 the other day. Now, whether the matters were - whether
29 the court file's still with her associate, I do not know,
30 but if you need access to the court file post haste, I
31 could ask my associate to try and find it.

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1MR DEVRIES: I think it would be easier for your associate to
2 locate it than my instructors.
3HIS HONOUR: I think that might be right, we'll see what we can
4 do. Otherwise I will stand the matter down til 2.15, and
5 I would require persuasion, if provided, that Mr Devries'
6 position is acceptable to his client, I'd require very
7 strong persuasion not to proceed at that time, come what
8 may. It's time this case was heard. I don't think
9 there's anything else I can do, I'll stand it down til
10 2.15.
11LUNCHEON ADJOURNMENT
12

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1 (Kaye J)
2UPON RESUMING AT 2.40 P.M.:
3HIS HONOUR: I note that Mr Johnson still is not here, he has
4 been in contact with my tipstaff, he told him earlier
5 he'd be here at 2.35, then told him he'd be here at 2.40.
6 Mr Richards will have a look.
7MR DEVRIES: Perhaps, Your Honour, we could deal with some
8 housekeeping matters, if he's not here for the next
9 couple of minutes.
10HIS HONOUR: I'm loath to do it, I'm not sure if it falls under
11 that heading.
12MR DEVRIES: The - if I can raise the matter now, Your Honour,
13 and if - - -
14HIS HONOUR: Yes.
15MR DEVRIES: - - - if Your Honour feels, with respect, if Your
16 Honour feels that that's a matter that needs to be sorted
17 out later, it's - what happens if this matter's not
18 completed by the end of this week, as to what Your
19 Honour's going to do on Monday. The reason - sorry, my
20 learned friend has difficulties with other days, but my
21 personal problem is that I have to notify somebody this
22 evening.
23HIS HONOUR: I follow.
24MR DEVRIES: As to what - - -
25HIS HONOUR: I would have to be in touch with the listing
26 master to find out, the plaintiff in the matter that was
27 to come in on Monday passed away yesterday.
28MR DEVRIES: Oh dear.
29HIS HONOUR: But there is another one, I understand, may be
30 coming on. We're dealing with a number of these, so that
31 that will have to be accorded priority, but otherwise, I

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1 would expect to keep going in this case. But perhaps we
2 better discuss this matter in front of Mr Johnson. The
3 other matter, I should say, for the - for the information
4 of counsel, I will be commencing tomorrow at ten, if you
5 can all cope with that, and rising at 3.30, because I
6 wish to attend the funeral of the late Mr Hume, Queens'
7 Counsel. Are you able to - you don't have a binding
8 arrangement holding you from court til 10.30 tomorrow, do
9 you, Mr - - -
10MR DEVRIES: No, certainly not, Your Honour, I'm used to early
11 starts.
12HIS HONOUR: Yes.
13MR DEVRIES: Have never been used to early finishes, though,
14 Your Honour.
15HIS HONOUR: Neither me.
16MR DEVRIES: The other matter of housekeeping nature, and it'll
17 - I presume it'll go on transcript, I've got the spelling
18 of Mr Laitey's name wrong, it's L-a-i-t-e-y, I apologise
19 for that. I've got that wrong, I looked at some court
20 documents last night which said something different.
21HIS HONOUR: All right, I don't think it matters a lot anyway.
22MR DEVRIES: I apologise again, Your Honour.
23HIS HONOUR: It doesn't - I don't think it's too great a
24 concern. I would think, subject to any of these
25 mesothelioma cases coming through, that the intention
26 would be I'd try to complete this case, but equally, by
27 Monday, this case would have well exceeded the limit
28 given to the listing master by the practitioners, as a
29 matter of - - -
30MR DEVRIES: - - - exceeded that by this evening, I believe,
31 Your Honour.

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1HIS HONOUR: I'm sorry?
2MR DEVRIES: I think it would exceeded - - -
3HIS HONOUR: Well, I follow that, but there's been some
4 unforeseen delays, and I'd allow time on for that.
5MR DEVRIES: M'mm.
6HIS HONOUR: Well, I'm loath to recommence without Mr Johnson
7 being here, I am concerned about it now being half an
8 hour later than the time I appointed the court to resume.
9 Mr Richards has volunteered to contact Mr Johnson, he has
10 his number. I think the better for me to do is I'll
11 stand down for a
12 moment - - -
13MR DEVRIES: Just before we do, there's another housekeeping
14 matter that my learned friend wishes to raise, which,
15 again - - -
16MS SOFRONIOU: It will cause no embarrassment, Your Honour, and
17 that is just that the transcript, which Your Honour is
18 also receiving, inadvertently refers to myself as acting
19 on behalf of the 2nd and 3rd defendants, instead of, as
20 is the case, 2nd and 3rd defendants by counterclaim.
21HIS HONOUR: By counterclaim, yes.
22MS SOFRONIOU: I, with the leave of my friend, brought that to
23 the attention of the office, but I want to do it through
24 the court and the appropriate - - -
25HIS HONOUR: Thanks, well, that can be recorded at the -
26 Ms Sofroniou appears on behalf of the 2nd and 3rd
27 defendants to the counterclaim.
28MS SOFRONIOU: Thank you, Your Honour.
29HIS HONOUR: Thanks, Ms Sofroniou. Mr Johnson, in your absence
30 the only matters raised were what might happen to this
31 case if it hasn't finished by Friday, and I have informed

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1 counsel it will be a matter for the listing master, and that
2 may depend on whether there are any more sick plaintiffs
3 waiting for their cases to be heard as a matter of
4 urgency. Now, Mr Devries, what's your position?
5MR DEVRIES: My client received - sorry, had the opportunity to
6 read the counterclaim and defence in the other matter,
7 the Bar provided her with independent legal advice from
8 another member of counsel, that member of counsel advised
9 me that he had spoken with my client, had given her
10 advice, obviously he hasn't discussed with me what that
11 advice is.
12HIS HONOUR: M'mm.
13MR DEVRIES: And that he was - he believed she understood the
14 advice. Following that, my client has informed me that
15 she wishes me to - and my instructors to continue in this
16 matter. She also advised me at that time, Your Honour,
17 that her mother is now available to give evidence, and
18 I'll be calling her mother as well, so where I have
19 informed Your Honour that I only had one witness
20 yesterday.
21HIS HONOUR: Yes?
22MR DEVRIES: I now have two witnesses. Another matter
23 that - - -
24HIS HONOUR: Now, an order has been made for witnesses to be
25 out of court, so if you could advise the - - -
26MR DEVRIES: I'll be asked her to leave as soon as - - -
27HIS HONOUR: Yes.
28MR DEVRIES: The next matter, Your Honour, now that Mr Johnson
29 is here. If I can foreshadow that I will be seeking to
30 amend the statement of claim - I got distracted yesterday
31 from - turn your mind to that and one other matter which

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1 I'll raise in a second. I haven't had the opportunity to
2 formulate that but I'll provide that to all the parties
3 then Your Honour and I will - I make formal application
4 tomorrow.
5HIS HONOUR: That's just by way of foreshadowing (indistinct)
6 the nature of the amendments that you intend to seek
7 about (indistinct).
8MR DEVRIES: Just to add two other - I think it's two other
9 properties by their address to the list of properties.
10HIS HONOUR: It's the Torquay property - property and the
11 Caulfield East Property.
12MR DEVRIES: That's correct, Your Honour.
13HIS HONOUR: Well, you will need to make that application
14 promptly and I will then hear from Mr Johnson as to what
15 he has to say about it.
16MR DEVRIES: Your Honour, I - intended to make it first thing
17 tomorrow when I would have the - the full amendment
18 written out - - -
19HIS HONOUR: Well, in the meantime once you've made that - once
20 you have drafted the amendment, you'll need to send a
21 copy of it to Mr Johnson so he has time to have a look at
22 it, before coming to court tomorrow. So it will need to
23 be faxed or emailed to him or whatever.
24MR DEVRIES: We have had great difficulty right through this
25 matter getting an email or fax across to which Mr Johnson
26 can respond quickly.
27HIS HONOUR: Yes, well, I will ask Mr Johnson in a moment.
28MR DEVRIES: And the other thing I was distracted from doing
29 Your Honour was to ensure that Your Honour had a copy of
30 - I have to say this - what purports to be a court book
31 in this matter.

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1HIS HONOUR: I had one from the second and third defendants to
2 counter claim.
3MR DEVRIES: I - I have - - -
4HIS HONOUR: That doesn't matter, I'm not a great fun of court
5 books.
6MR DEVRIES: I must say Your Honour I'm very relieved to hear
7 that because whilst this has the pleadings and the
8 previous orders made in this court, it doesn't have
9 anything else.
10HIS HONOUR: Well, that would be of assistance, yes. Thank
11 you. Now - - -
12MR DEVRIES: I apologise for not providing you - - -
13HIS HONOUR: Are you otherwise ready to proceed with the case?
14MR DEVRIES: I am Your Honour. If - just if I can get back to
15 the Monday date, would it be possible Your Honour for
16 myself or my instructors to make enquiries of Your
17 Honour's associate after the court rises to see if
18 there's any firmer idea of what might happen on Monday.
19HIS HONOUR: Yes. I'll have to make contact with the Listing
20 Master first and she's not always easy to get a hold of,
21 but you can certainly contact my associate to find out
22 what'll be happening on Monday.
23 Mr Johnson, in your absence, I also announce I will be
24 sitting at ten o'clock tomorrow. Not 10.30 and I will be
25 rising at 3.30 in the afternoon, we'll adjust court hours
26 because I need to attend a funeral tomorrow afternoon.
27 Are you right to proceed now?
28MR JOHNSON: Yes, I am Your Honour. I thank Your Honour and my
29 condolences.
30HIS HONOUR: Well, it was to - a great member of the Victorian
31 Bar.

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1MR JOHNSON: I'm aware of who the person was, yes.
2HIS HONOUR: The other matter is have you got an email address
3 or facsimile address to which the proposed amendments can
4 be sent this evening so you have time to look at them?
5MR JOHNSON: I do have, but I have been unable to access it for
6 the last 48 hours, hence my concern. I have been pushed
7 to the brink of bankruptcy Your Honour as you can see
8 from the fact that my net equity and my properties 12
9 months ago was about half a million and now apparently
10 it's down to under $70,000.
11HIS HONOUR: Well, it's a simple question as to whether there's
12 somewhere we can send you the - - -
13MR JOHNSON: I had - sir - I have neither email or fax which I
14 can rely on.
15HIS HONOUR: Well, then you'll need to make arrangements with
16 Mr Devries to be able to collect from his chambers
17 tomorrow morning a copy of the - or from his solicitors,
18 a copy of the proposed amendment, when would that be
19 available Mr Devries?
20MR DEVRIES: It'll be available from any time after 6 p.m.
21 today Your Honour. And possibly even 5 p.m.
22HIS HONOUR: Well, I would expect then that arrangements can be
23 made between yourself and Mr Devries' solicitor and/ or
24 Mr Devries to collect it then so you'll have an
25 opportunity to see it this evening. Now, we'll continue
26 with - - -
27MR JOHNSON: Sorry, Your Honour, may I express my objection in
28 this matter that the plaintiff is allowed firstly to make
29 that application so late yesterday regarding the - - -
30HIS HONOUR: I cannot - - -
31MR JOHNSON: - - - and now to amend pleadings Your Honour. How

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1 can that be?
2HIS HONOUR: I'm not allowing them to amend their pleadings.
3 They have foreshadowed an application to be permitted to
4 amend the pleadings and I will hear that application once
5 the draft amendment is to hand. I cannot hear the
6 application till he's drafted the amendments. And
7 Mr Devries will need to get leave from me and I'll hear
8 you on that application. I cannot pre-emptively stop him
9 making an application to do that.
10MR JOHNSON: I had understood that the time for amending
11 pleadings closed some weeks before the trial date.
12HIS HONOUR: You misunderstood, because the law in fact is that
13 a party can amend their pleadings at any stage indeed up
14 till judgment provided that occurs without injustice to
15 the other side. I will hear you on any application when
16 it is made. We will now resume with the evidence.
18HIS HONOUR: Mr Devries, your client is giving evidence.
19MR DEVRIES: Just one matter arising out of what - with
20 respect, what Mr Johnson has just said. He's raised the
21 question of bankruptcy Your Honour.
22HIS HONOUR: Mr Devries, if we're going to keep having
23 discussions, we're not going to get onto this case.
24MR DEVRIES: But with respect Your Honour if - Mr Johnson says
25 from time to time including in a sworn documents before
26 this court that he's filed for bankruptcy or he's going
27 to file for bankruptcy. The moment he does that, Your
28 Honour, with respect this matter cannot proceed further.
29 And he keeps raising the prospect that he's bankrupt or
30 he's going to go bankrupt and I just raise the question
31 that if that is what's happened and as of yesterday,

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1 according to the searches, he hadn't done that but he has
2 said on affidavit that he has filed and then that he
3 intends to file - - -
4HIS HONOUR: Mr Devries, what do you want me to do about it.
5MR DEVRIES: Well, he's raised - - -
6HIS HONOUR: I cannot do anything about it other than hear this
7 case. Now, if the parties don't wish me to hear the
8 case, there are other cases of great importance I can
9 hear. Now, please, can we proceed to the evidence,
10 unless you have an application to me.
11MR DEVRIES: I'll press on, Your Honour, but the concern I have
12 is the moment he's bankrupt - - -
13MR JOHNSON: Your Honour, I have no intention of formal filing
14 for bankruptcy within the next seven days, Your Honour.
15HIS HONOUR: Yes.
16MR JOHNSON: Penniless perhaps, would be a more apt word.
17 Excuse me for not making that clear.
18MR DEVRIES: If my client can return to the - - -
19HIS HONOUR: Yes. I think that's the best cause if we try and
20 get this case heard and completed.
21<PIPPIN PATRICIA CRESSY, recalled:
22MR DEVRIES: When we finished yesterday we were - I was asking
23 you some questions about 166 Queen Street, Altona and you
24 had got as far as telling His Honour about the activities
25 that you undertook to clean walls and ceilings?---Yes.
26And you had mentioned removing carpets and flooring?
27 ---M'mm.
28Did you do anything else to improve, maintain or fix up that
29 property?---Yes I had the existing kitchen removed and a
30 brand new kitchen installed, the expense to myself.
31So how much was that expense to you?---On estimate about 30,

2Cressy
1 30,000 for those - for that installation.
2Who paid for that?---I did.
3How did you pay for it? Cheque or cash?---Cash. Not all at
4 once.
5Who did you pay it to?---Sorry?
6Who did you pay it to?---Prestige Kitchens in Williamstown, I
7 think that's the right name. There was also the
8 electrician - - -
9Sorry could I just take you back to the kitchen for a moment?
10 Who liaised with the installers to get the installation
11 and replacing the kitchen?---I did that. I also saw
12 (indistinct) the electrical appliances myself and the
13 local electrical store down in Hoppers Crossing.
14 Purchasing the new oven and range hood. I went to -
15 there was a plumbing centre, I've forgotten the name of
16 it that I purchased a designer sink from and tapware. I
17 did all of that. I paid for the plumber to come out and
18 install the dishwasher.
19Anything else done in respect to the kitchen?---No that was
20 approximately it, yes.
21And you were moving on I think to talk about other things?
22 ---Yes all of the electrical - basically all the existing
23 lights in the house were really old and outdated so they
24 were removed. New lights were put in throughout the
25 entire house, new power - - -
26Who put the new lights in?---An electrician that I hired.
27Who paid for that electrician?---I did.
28How did you pay that electrician?---Cash.
29And you then moved on to talk about other items?---Well there
30 was curtains, curtain fittings. I removed all the old
31 curtains, it was quite difficult. It was hard wood. It

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1 was quite difficult to get all the stuff out but I
2 physically did that myself. Installed the new curtains,
3 new curtain rails, all that sort of stuff.
4Who purchased the curtains and the rails - - - ?---I did.
5- - - and the other bits and pieces?---I did.
6Now you mentioned something about lights and power points?
7 ---Yes that was included in the electrical work.
8 Frank Debrinkat was his name, the electrician.
9I'm not sure whether I asked this question yesterday but in
10 whose name was the property purchased?---In Mr Johnson's
11 name.
12You mentioned that there was a mortgage taken out to purchase
13 that. In whose name was the mortgage?---That was also in
14 Mr Johnson's name.
15And why was that? In both cases?---Primarily as a tax
16 effective way for both negative gearing, also because I
17 wouldn't have been able to access a loan of those funds
18 on my income. Yes basically he handled the financial
19 side of things like that.
20Did you have a bank account at the time that you occupied Queen
21 Street, Altona?---Yes I had a number.
22Sorry?---Yes I had a number of bank accounts.
23What happened to the documents in respect to that bank
24 account?---They were all stolen while the children and I
25 were on a ski holiday one weekend.
26Who stole those?---I - - -
27HIS HONOUR: Well just a moment.
28MR JOHNSON: Objection Your Honour.
29MR DEVRIES: Yes I withdraw - - -
30MR JOHNSON: This is extraordinary, this is (indistinct)
31 allegations (indistinct) sir.

2Cressy
1MR DEVRIES: I'll withdraw the question Your Honour.
2HIS HONOUR: The question is inadmissible anyway unless the
3 witness can say from direct evidence as to how they were
4 lost.
5MR DEVRIES: I was going to do that Your Honour, that's why
6 I've withdrawn the question with respect. (To witness)
7 Where were the documents?---The documents were kept in my
8 room. I had a system of filing on a shelf in my room.
9 There were also personal items like glamour photos
10 stolen, but all of my files were stolen that weekend.
11What address were you at - sorry what address were the
12 documents and the glamour photo at the time they were
13 stolen?---At 166 Queen Street.
14Who had keys to those premises apart from yourself?---Only
15 James and Mr Johnson.
16HIS HONOUR: When did the documents go missing? What time
17 frame would that have been?---It would have been in
18 August, approximately August 07.
19MR DEVRIES: Were there any signs of breaking of any locks,
20 windows or anything else to get access to the premises?
21 ---Yes there was. There were signs of forced entry on
22 one of the front bedrooms where a window had been popped
23 open. You needed a special piece of wood, the correct
24 size to keep it shut and the children had removed that so
25 it was quite easy just to give a little push to pop the
26 window open and for someone to climb in.
27Was anything, apart from your personal documents and your
28 personal photographs, is there anything else taken from
29 your premises?---No, all of the electrical equipment in
30 the house, our plasma television was still there, all of
31 my gold jewellery was still there, a stereo system was

2Cressy
1 still there, I had a bit of cash hidden away, that was
2 still there.
3Can you tell His Honour what the documents were taken comprised
4 - now, I don't mean you to go through every document, but
5 if you can give us categories of documents?---OK.
6That disappear?---All right, I had income tax returns, various
7 financial institution documents, bank statements,
8 insurance documents, I had three years of work diaries,
9 accounting documents stolen, children's birth
10 certificates were stolen, but all of my files were gone,
11 taken, everything, gone.
12Now, can I just ask you about these work diaries, what years -
13 sorry, did that cover calendar years or financial years?
14 ---Calendar years, yes.
15And which - sorry, which calendar years did they - - -?---I had
16 2005 and 2007. Well, I was only a little way through
17 2007 when the diary was stolen, but yes.
18So 2005?---Two thousand and six, 2007.
19Sorry, I didn't hear you say 2006, and what - you said they
20 were your work diaries, what did they - what did they
21 have in them, what information?---I guess the best way to
22 describe it was like accounts receivable.
23M'mm?---Money coming in, money going out, expenditure, income
24 and expenditure, basically.
25Have any of those documents ever come to light?---No, nothing's
26 resurfaced.
27Has anyone ever said to you that they have taken those
28 documents?---No one has outright admitted the theft of
29 the documents, no.
30Unit 9, 2 Gibson Street, Caulfield?---Yes.
31Do you know which property I'm referring to?---Yes, that's

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1 student accommodation.
2Can you recall when that was purchased?---Maybe a year after we
3 were in Point Cook, that was more specific than that.
4Who purchased that property?---James did.
5And did you have a caveat placed on that property, on the top
6 of that property?---Yes, initially, yes, I did.
7Yes, did you receive any request to remove that caveat?
8 ---Yes, I did, through my then lawyers, Harwood Andrews.
9 I received a request saying that it was to be sold, the
10 caveat needed to be released, or he was going to lose
11 money.
12Sorry, who was the request from?---That was from Mr Johnson. I
13 think it said something to do with settlement was dutiful
14 and - - -
15Could you have a look at this letter? This is a letter dated,
16 first of all, 26 October, and that was crossed out, 2007
17 crossed out and made 29 October. Is that a true copy of
18 the letter that you're referring to?
19 ---Yes, it is.
20And about halfway down on the front page, there's a reference
21 to the property being under contract of sale and
22 settling, have you - can you see that reference?
23 ---Where it says Gibson Street is under contract and is
24 past you?
25Yes?---Yes.
26Could you read out that, those two sentences?---"Settlement
27 will proceed within three business days of withdrawal of
28 caveat by your client. Settlement must occur on or
29 before Wednesday 7 November 2007, or I will suffer
30 further and substantial ongoing losses and damages".
31And as a result of receiving that letter, what instructions did

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1 you give your then solicitors with respect to the
2 caveat?---I instructed them to release it.
3I tender that letter, or that copy letter, if Your Honour
4 pleases.
5MR JOHNSON: May I have a copy, please, Your Honour?
6HIS HONOUR: You may have a look at it. I'll just have it
7 marked as an exhibit, then you can have a look at the
8 document. The copy letter from the defendant to Mr David
9 Hanlon, Harwood Andrews Pty Ltd, dated 29 October 2007,
10 will be Exhibit A.
11
12#EXHIBIT A - Copy letter from defendant to David
13 Hanlon at Harwood Andrews Pty Ltd dated
14 29/10/07.
15MR LANGMEAD: Your Honour, there are a large number of
16 attachments referred to that should be properly included
17 with the exhibit - - -
18HIS HONOUR: Well, you can cross-examine on that basis, I'll
19 receive the letter as it is.
20MR JOHNSON: Thank you.
21HIS HONOUR: You can tender them when your turn comes.
23HIS HONOUR: Could you return the letter now, thank you, we'll
24 have it marked as an exhibit.
25MR JOHNSON: Thank you, Mr Devries.
26MR DEVRIES: What - was the property sold after you instructed
27 Mr Hanlon to have the caveat removed?---No, the property
28 was not sold, the property, to the best of my knowledge,
29 was we financed all - funds were drawn from it, in the
30 figure of about $100,000, to the best of my knowledge, no
31 sale went through whatsoever.
32Did you get any benefit from that money that was refinanced on
33 that property?---No, there was no division.

2Cressy
1HIS HONOUR: Do you know how much the original purchase price
2 of that unit was?---No, I can't be certain on that.
3Can you - an approximation?---Well, I think it was under 500,
4 so I'm guessing - there was some - there's a little bit
5 of confusion, because the mortgage broker who set the
6 deal up had some sort of tax effective way of giving
7 James cash after the purchaser. It was a very convoluted
8 deal.
9Well, if you don't know the purchase price, I won't ask you to
10 guess. Mr Devries?
11MR DEVRIES: May it please Your Honour. Did you have any
12 involvement in the process of purchasing that property?
13 ---No, no.
14Did you do any work on that property once it was purchased?
15 ---No, I didn't.
16Did you have any involvement in the leasing out or tenanting or
17 anything like that of that property after it was
18 purchased?---Not directly, other than discussions with
19 James about what we should do with that as an investment
20 opportunity.
21What was the thrust of those discussions?---Just to hold onto
22 it for another number of years, and then possibly sell it
23 off.
24Do you know which financial institution had the mortgage over
25 the property?---There have been so many financial
26 institutions, I'm sorry, I could say which goes to which.
27Now, 7A Endeavour Drive, Torquay, do you know which property
28 I'm referring to?---Yes, I do.
29What sort of property is that?---It's a townhouse that's surf
30 side location, rather new, I think it was purchased for
31 $399,000. I believe funds that were taken out of

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1 Caulfield, part of those proceeds were applied to the
2 purchase of that property.
3Did you have any role in the purchase of that property?
4 ---No, that purchase - sorry, that property was purchased
5 after we separated, but with funds from the Gibson Street
6 property.
7Do you know whose in occupation of that property at the
8 moment?---I believe Mr Johnson is residing there at the
9 moment, that's the address that he's giving. I'm sorry,
10 you asked me before who had the mortgage for Caulfield,
11 and it's the Commonwealth Bank, because that's linked to
12 the Torquay property as well.
13Could you have a look at this document and tell His Honour
14 whether you recognise that document? It's a letter from
15 the Commonwealth Bank Group, Your Honour?---Thank you.
16 Yes, I've seen this letter.
17Who's it addressed to?---Well, this copy was addressed to Berry
18 Family Law from the Commonwealth Bank.
19Who are Berry Family Law?---They're my solicitors.
20And what is the - the first page attaches a copy of another
21 document, is that correct?---Yes, it does.
22What is that document?---The second document is a notice to the
23 mortgagor, s.76(1) Transfer of Land Act 1958 to a Harold
24 James Johnson of 7A Endeavour Drive.
25I tender those - or those two documents, Your Honour.
26MR JOHNSON: May I see them, because I've never seen them
27 before, Your Honour.
28HIS HONOUR: I'll mark them as an exhibit, then you can have a
29 look.
30MR JOHNSON: This is extraordinary, Your Honour, may I have a
31 copy, please, I've not seen this correspondence.

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1HIS HONOUR: Yes, I'll mark it as an exhibit, and you can have
2 a copy made in a moment.
3MR JOHNSON: Thank you, Your Honour. Forgive me for not
4 standing, I still have some back trouble.
5MR DEVRIES: Your Honour, I will - - -
6HIS HONOUR: Mr - - -
7MR DEVRIES: Sorry, I'll photocopy the previous exhibit in that
8 document and provide them to Mr Johnson for the same time
9 as the amended - proposed amendments to the statement of
10 claim.
11HIS HONOUR: Thank you.

12
13#EXHIBIT B - Letter from Commonwealth Bank to Berry
14 Family Law dated 12/11/08 together with
15 attached notice to mortgagor, s.76(1)
16 Transfer of Land Act 1958.
17MR DEVRIES: Now you've been involved in Federal Magistrates'
18 Court proceedings with Mr Johnson as well is that
19 correct?---That's true, for quite some time.
20And who is the applicant in those proceedings? Can you
21 recall?---James - I'm sorry, Mr Johnson is the applicant
22 in those proceedings.
23And who were the respondents?---There was myself, there's the
24 1st respondent and my son's father, Matthew John Laity as
25 the 2nd respondent.
26I'm going to ask you to look at a document which is the sealed
27 copies of orders made in the Federal Magistrates' Court
28 of Australia on 26 September 2007 (indistinct) interim
29 orders.
30MR JOHNSON: Your Honour may I just at this point question
31 relevance? That's - - -
32HIS HONOUR: Yes I haven't seen the orders but the same
33 question springs to my mind Mr Johnson.

2Cressy
1MR JOHNSON: Thank you Your Honour.
2MR DEVRIES: Just going to the relevant section Your Honour.
3 At Paragraph 19 of those orders - --
4HIS HONOUR: Well I don't have the orders in front of me.
5MR DEVRIES: Yes I'm just going to read it to Your Honour.
6 It's one sentence. "The mother and the child shall
7 reside at 166 Queen Street, Altona" which is one of the
8 properties the subject of this proceeding. There is a
9 history that follows that which I submit to Your Honour
10 is relevant to these proceedings.
11HIS HONOUR: I'm not sure how but what I can - instead of
12 receiving those orders as an exhibit, I think I can take
13 it therefore that there is an order Federal Magistrates'
14 Court 26 September 2007, what is it Paragraph 19?
15MR DEVRIES: Paragraph 19 Your Honour, yes.
16HIS HONOUR: That the plaintiff and Illyana - - - ?---And the
17 children.
18- - - be permitted to reside at where?
19MR DEVRIES: 166 Queen Street, Altona. Were you present when
20 those orders were made?---Yes I was.
21Were those orders made by consent or - sorry that
22 part - - -
23 (Audio malfunction)
24HIS HONOUR: - - - the evidence of (indistinct) not permitted
25 to be used as a collateral attack on
26 Mr Johnson's credit.
27MR DEVRIES: If Your Honour pleases. Your Honour the simple
28 question of what's happened to 166 Queen Street, Altona
29 is dealt with in previous orders of this court.
30HIS HONOUR: That's what I understand.
31MR DEVRIES: And it - --

2Cressy
1HIS HONOUR: Well can I ask you this? Did you continue to
2 reside in the property?
3MR JOHNSON: Your Honour - - -
4HIS HONOUR: Look I've asked a question. I'm sorry I'm losing
5 patience with the pair of you.
6MR JOHNSON: Sorry Your Honour, I never resided at that
7 property, full stop.
8HIS HONOUR: Did you continue to reside at the property?
9 ---After the relationship broke down?
10Yes?---Yes.
11For how long?---Until the last time I was in this court and I
12 was given residence of No.2 Dorrington Street.
13That's by Justice Hansen is that right?---That's correct.
14In July?---That's right, yes.
15Has the property been sold? The Queen Street property?
16 ---Yes it has now.
17When was it sold?---Not so many weeks ago. Probably less than
18 four weeks ago, under value for $627,000.
19Who sold it? Mr Johnson or did the mortgagee?---The mortgagor
20 stepped in. The agents they selected were Century 21 of
21 Williamstown.
22And you - so when did you move out of the property? To July
23 2008 did you? About the time of Justice Hansen's order?
24 ---Yes, shortly thereafter.
25You'd moved then into Dorrington Street is that right?
26 ---That's correct.
27MR DEVRIES: This is relevant for the summons as well Your
28 Honour. When did you vacate to Dorrington Street?
29 ---To - - -
30Sorry I withdraw that. Have you vacated to Dorrington Street?-
31 --Yes I have apart from a few (indistinct) items that are

2Cressy
1 left lying around two weekends ago, yes.
2And what have you done with the keys to 2 Dorrington Street?---
3 Nothing yet.
4Have you caused Mr Johnson to be notified of your vacation of
5 those premises?---I've caused my lawyers to be notified
6 which in turn I would assume would let
7 Mr Johnson know but he seems to have trouble being
8 contacted.
9MR JOHNSON: I've just been notified this instance for the
10 first time Your Honour.
11MR DEVRIES: Whilst you were at 166 Queen Street, Altona did Mr
12 Johnson ever turn up without warning or uninvited?---Yes
13 constantly.
14And did he come onto the premises on any of those occasions?---
15 Yes he did.
16MR JOHNSON: Your Honour these are incredibly broad questions.
17HIS HONOUR: Why - how is this relevant?
18MR DEVRIES: It goes to the nature of her occupation of the
19 premises Your Honour. It's probably, with respect,
20 marginal - - -
21HIS HONOUR: Well, I'll disallow the question.
22MR DEVRIES: If Your Honour pleases, I'll move on, Your Honour.
23HIS HONOUR: This case should complete, properly run, by both
24 sides in two days, if we can stay relevant and directed
25 to issues of contribution and the like which are relevant
26 under s.285 and are also relevant in relation to the
27 constructive trust. If we stick to those issues on both
28 sides, we'll get there, we won't have to worry about
29 Monday.
30MR DEVRIES: If Your Honour pleases.
31HIS HONOUR: Do you have any records at all as to the amounts

2Cressy
1 of money you say you put into the properties, such as at
2 Altona?---No, everything was stolen, Your Honour.
3And were all the sums paid by you on improvements paid by cash,
4 were they?---Yes, they were.
5You don't have any receipts?---No, I don't, although I could
6 probably get an old bank record for my deposit towards
7 Altona, and other records of money through those
8 accounts.
9Well, that's a matter for you, it's - I'm just interested in
10 what evidence there is in relation to it?---There is no
11 hard evidence, it has all been stolen.
12Mr Devries.
13MR DEVRIES: May it please Your Honour. Following - sorry,
14 from the time that you separated, did you make any
15 payments in respect to the mortgages on any of the
16 properties?---No.
17Did you make any payments in respect to any of the outgoings on
18 any of the properties, such as rates, taxes,
19 insurances?---No.
20Did you do any improvements or maintenance to any of the
21 properties?---Maintenance, yes, just everyday stuff.
22MR JOHNSON: Your Honour, both the question and the answer, I
23 submit, need to be a bit more precise.
24HIS HONOUR: Well, they're not of much value if they aren't, I
25 don't think you need to help (indistinct) in their case.
26MR JOHNSON: Right, thank you.
27MR DEVRIES: Have you seen any documents in relation to the
28 sale of any of the properties that we've been discussing
29 today and yesterday?---Yes, there was the sale of Lisa
30 Court, which the majority of the proceeds went to pay the
31 outstanding mortgage on that, with a remainder of about

2Cressy
1 $25,000 that Mr Johnson had at his own disposal, I don't
2 know what happened to that money. Of course, there was
3 the refinancing of Caulfield, the purchase of Torquay.
4Did you see any documents in relation to either of those
5 transactions?---Yes, I have. There - sorry, I think
6 that's probably about it.
7Have you received any money from the sale of any of the
8 properties that I've asked you about in the last two
9 days?---No.
10HIS HONOUR: Now, Mr Devries, your client's just referred to
11 Lisa Court, she's given no evidence previously about Lisa
12 Court, I also notice she hasn't given evidence yet about
13 the Hawkhurst property or, I think, Inverloch Drive.
14 Now, I don't know whether they - you're intending to ask
15 her questions about that, you opened them, but you - I
16 don't - I don't have
17 any - - -
18MR DEVRIES: I must say, Your Honour, I thought I'd asked her
19 about Inverloch Drive, but I may - - -
20HIS HONOUR: I might have overlooked it, but - - -
21MR DEVRIES: It would have been fairly late yesterday. I
22 thought I had asked her about Lisa Court.
23HIS HONOUR: All right.
24MR DEVRIES: But I'm quite happy to ask you again.
25HIS HONOUR: You opened them.
26MR DEVRIES: Would Your Honour just bear with me for a moment,
27 and I'll just - - -
28HIS HONOUR: Yes, but (indistinct).
29MR DEVRIES: Page 105 of the transcript, there is a reference
30 to Lisa Court.
31HIS HONOUR: That's in opening. You opened all these

2Cressy
1 properties.
2MR DEVRIES: Sorry.
3HIS HONOUR: I'm talking about evidence.
4MR DEVRIES: I apologise, Your Honour, I - - -
5HIS HONOUR: You asked your client yesterday, apart from the
6 rented properties, about Dorrington Street.
7MR DEVRIES: Yes.
8HIS HONOUR: - - - and at the close of play you'd got onto
9 Queen Street. We've dealt with more of Queen Street, the
10 Caulfield property, and the Torquay property, but I
11 just - - -
12MR DEVRIES: I'm indebted to Your Honour.
13HIS HONOUR: Ms Cressy referred in her - in an answer just into
14 Lisa Court, but apart from that, she has not been asked
15 anything about Hawks Court, Lisa Court, or Inverloch
16 Drive.
17MR DEVRIES: Look, I apologise, Your Honour, and I thought I'd
18 been following some notes, and obviously
19 I've - - -
20HIS HONOUR: Yesterday was a topsy turvy day, but I thought I'd
21 better draw that to your attention.
22MR DEVRIES: And I'm indebted to Your Honour, I was very
23 distracted yesterday.
24HIS HONOUR: I understand.
25MR DEVRIES: I probably should not have proceeded. Hawkhurst
26 Court, Hoppers Crossing?---Yes.
27Do you recall that property?---Yes.
28Ten Hawkhurst, what sort of property was that?---That was a
29 property - house and land package, again, much like Point
30 Cook, although that was built through Divine Pioneer,
31 much cheaper - - -

2Cressy
1Sorry, when was it purchased, approximately?---Pretty much the
2 same time as Point Cook, yes, in the same timeframe as
3 Point Cook.
4Point Cook being 2 Dorrington Street?---Yes, that's right.
5Who located the - - -
6HIS HONOUR: Could I ask you, within your statement of claim,
7 it's been pleaded that Dorrington Street, Point Cook, was
8 purchased in August 2002, does that sound about right?
9 ---I can't be precise on that, I'm sorry.
10And Hawkhurst Court was purchased Feb 2003, again, just
11 roughly, are those about the right time frames?
12 ---Well, both the Divine houses, Hawkhurst and Lisa
13 Court, were after Point Cook, so yes.
14Yes. Sorry, Mr Devries.
15MR DEVRIES: If Your Honour pleases. Who located the Hawkhurst
16 property or the Hawkhurst land and house package?---
17 Mr Johnson and I together.
18What involvement did you have in the process of purchasing that
19 property?---James took care of most of the sale, but we
20 picked out the internal paint colours, things like that,
21 the way we wanted the property to be presented, the
22 façade that we wanted on it, which particular block of
23 land we were going to choose out of the limited
24 selection.
25How much, approximately, was the whole property, that's the
26 land and the house?---Under 200,000.
27Sorry?---Under 200,000, I believe.
28All right, and where did the money for the purchase of that
29 probably come from?---James arranged finance for that,
30 and I gave him a little bit of money towards the deposit
31 that he requested.

2Cressy
1Can you recall how much you gave him towards the deposit?
2 ---I don't think it would have been more than three or
3 $4000.
4Did you have any - - -
5HIS HONOUR: How much was the deposit, do you know?---I've got
6 no idea, it was just a cash flow thing for him, but.
7So you don't know how much he put in?---No.
8MR DEVRIES: Were any - sorry, was anything done to the
9 property after you purchased it?---Yes, I did landscaping
10 on it, front and rear yard, twice, because the first
11 tenants didn't look after it properly, all the plants
12 died, so the whole thing had to be redone (indistinct)
13 thought, really, the cottage garden didn't work the first
14 time, so. I also did touch ups inside the property, the
15 first tenants were quite rough on the house, they ruined
16 carpet with stains in nearly every room, there were doors
17 with hole punches in them, walls with hole punches in
18 them that I'd puttied up and plastered myself. I
19 organised for Carpet Court to come out and replace the
20 stained carpet. At that point in time, there were a lot
21 of properties on the market and we were having trouble
22 getting a new tenant in in its current condition, so a
23 lot of work needed to be done on it to bring it back up
24 to speed, to scratch.
25Who paid for those repairs, renovations, rectifications?
26 ---I did, although I think we paid through the real
27 estate agent for repair to be done to the front door,
28 because I couldn't physically do that myself, the front
29 door wasn't shutting to come off its hinges.
30Who dealt with the agents who were the rental managers of the
31 property?---Initially James did, but then he said that he

2Cressy
1 didn't have the time for it, so I took over the
2 management of the management.
3HIS HONOUR: Did - I take it the rent was used to offset the
4 mortgage?---Yes.
5Was it sufficient to offset the mortgage, or was the place
6 negatively geared?---No, it was negatively geared.
7Who paid the balance of the mortgage instalments?---James did.
8Do you know how much they were?---I think it would have been
9 300 a month, and I think the rent was 230 to 240.
10MR DEVRIES: The 300 a month, was that the mortgage - - -?
11 ---That's the mortgage repayment, yes.
12Can you tell His Honour approximately how much you spent from
13 your moneys for the renovations, repairs, painting,
14 landscaping, gardening, and the other things that you did
15 on that property?---From memory, it was under $2000 for
16 the carpet, because I got discounted carpet. The
17 gardening in the two lots, maybe 1500 to 2000 as well,
18 the landscaping and the plants and the rock garden.
19 Physical labour of puttering up and plastering all those
20 holes, I don't know, the cost wouldn't have been more
21 than $10 for the plaster,
22 but - - -
23Yes (indistinct) about the materials at the moment, I'll ask
24 you about the labouring?---Yes, sure.
25What about paint, or have we covered it or not?---I don't think
26 it was more than $100.
27And you mentioned carpets, did any of the carpets have to be
28 replaced, or?---Yes, that's what I paid for, but only in
29 the areas that were ruined.
30About how much did you spend on those bits of carpet?---I'm
31 sorry, I thought I already said that, it was about under

2Cressy
1 $2000 for the carpet and the labour together.
2Now, you said that you did a lot of these things yourself, can
3 you give His Honour an indication of how many hours you
4 spent working on that property?---Well, physically,
5 landscaping's a very long, lengthy process, weekends at a
6 time, weeks, when the children were at school, I'd go up
7 to the houses and be working on it while they're at
8 school. The gardens were the most labour intensive.
9If you had to put a total number of hours on it, what's the
10 range, between how many hours and how many hours?---On
11 that particular property maybe a total of 20.
12What about the works you did on Dorrington Street, can you tell
13 His Honour how much of your money you spent on the
14 improvements, rectification, repairs, completion of the
15 work?---Well that was over years and constant, constant
16 work so that's a little bit hard to judge just off the
17 top of my head. I spent thousands of dollars on the
18 curtains and the curtain rods and all those fittings and
19 fixtures. The rendering - render paint was expensive and
20 it took a lot, we had to keep going back and buying more.
21 That was like $150 a tub, we must have ordered about 12
22 of those, so - - -
23HIS HONOUR: $1800?---It just kept going and going.
24MR DEVRIES: What about paint?---200 perhaps.
25Did you have to spend anything on the garden and the
26 landscaping?---I spent a fortune on the garden there, I
27 had like an orchard out the back, I had cactus gardens
28 with exotic catcuses - - -
29Cacti actually?---Right, cacti.
30HIS HONOUR: The general comments such as thousands and the
31 fortune firstly is very wide, but it really doesn't,

2Cressy
1 unfortunately, assist in the type of exercise you will be
2 asking me to undertake under s.285.
3MR DEVRIES: I am going to try and - - -
4HIS HONOUR: There needs to be some specificity about this.
5MR DEVRIES: The difficulty of course is, Your Honour, that
6 without the documents that mysteriously
7 disappeared - - -
8HIS HONOUR: Well I follow that, but this evidence does not
9 assist a lot unless there's at least some sort of idea
10 what sort of figures we are talking about.
11MR DEVRIES: I was going to try and - with respect, Your
12 Honour. (To witness) Going back to the render, you said
13 it was $150 a tub?---Yes.
14How many tubs did you say that you?---I'm pretty sure we got up
15 to 12, or 11 and a half, there was half a tub left over.
16HIS HONOUR: Did you purchase each of those tubs yourself?
17 ---Yes, or I gave my mother the money to go and get it.
18MR DEVRIES: Now the curtains and the fittings and the fixtures
19 relating to the curtains?---Yes.
20How much did you spend in total on those for Dorrington
21 Street?---Maybe 2000, I can't be sure it was a long time
22 ago now.
23You said that you spent a fortune on the landscaping and the
24 garden, the orchard and things like that?---Yes, yes.
25If you can give His Honour figures for various components of
26 that, we'll start with the cacti, how much did you spend
27 on the cacti in total?---Why I say it's a little bit
28 difficult to judge and why I say it's a lot of money is
29 because it was probably either all of the years of the
30 continual gardening, plants dying, plants being replaced,
31 probably about $5000, which even to my own mind seems a lot

2Cressy
1 to spend on gardening, but it was an activity that we
2 enjoyed doing, so.
3What did the $5000 cover?---Fruit trees, lawn seed, of course
4 we've got the back block, it's not just Dorrington
5 Street, because we've got Inverloch which we treated as
6 part of our garden, it was our extended back yard.
7Yes?---That we had the orchard on, we had the vegetable
8 gardens, we had the cacti garden. We did landscaping of
9 paths, a stone rockery areas, fish pond areas, it was
10 quite expansive the property.
11You gave evidence yesterday, to the best of my recollection,
12 that there were tradesmen that were brought in to do
13 various things in the property?---Yes.
14Who paid for those tradesmen?---James paid for the first lot,
15 we had some Werribee landscaping company do some very
16 specialised scalloped clad paving for us, James paid for
17 that. The rest of the time - we didn't have a lot of
18 tradespeople come through, but we did have some that came
19 through from Metricon to tidy up a couple of things that
20 weren't done properly after we first moved into the
21 house. Metricon paid for those.
22MR DEVRIES: Now - - -?---We really didn't - - -
23You gave evidence of doing some painting and I think you
24 mentioned painting a feature wall?---Yes.
25Who paid for the paint?---I did.
26And the paintbrushes and the thinners and stuff like that?
27 ---Yes, again I did.
28How much did you spend in all on those items?---Probably in
29 excess of 200 but I'll just say 200.
30You talked about mowing the lawns. What did you mow the lawns
31 with?---With James' lawn mower that he got from his ex-

2Cressy
1 wife's house in Mulgrave.
2MR JOHNSON: Excuse me Your Honour, we could take weeks at this
3 pace. Is there perhaps something we could do to speed
4 things up a little? Is that appropriate?
5HIS HONOUR: There are many ways this could have been. But
6 we're doing it this way. Mr Devries will be as quick as
7 he can.
8MR DEVRIES: I'm not trying to slow the matter.
9HIS HONOUR: I understand that. I think the major items have
10 been paint $200, isn't going to make much different under
11 Part 9. But it's the major items you're really looking
12 at, isn't it?
13MR DEVRIES: Yes, Your Honour. Now - - -
14MR JOHNSON: Your Honour, may I just say that Ms Cressy has
15 given evidence-in-chief that has taken close to taking up
16 a whole of court. Now if I'm going to take a whole of
17 cross-examination - - -
18HIS HONOUR: Ms Cressy only started evidence about - at about
19 three o'clock yesterday. And she has only resumed her
20 evidence about three o'clock. The less interruption, the
21 quicker she will do it.
22MR JOHNSON: Sir, I'm just anxious that both parties get an
23 equivalent amount of time.
24HIS HONOUR: Yes. Well you will have a fair opportunity to
25 cross-examine her when your time comes.
26MR JOHNSON: Yes.
27HIS HONOUR: Mr Devries.
28MR DEVRIES: May it please Your Honour. (To witness) 12 Lisa
29 Court, Hoppers Crossing, was that purchased before, after
30 or approximately same time as Hawkhurst Court, Hoppers
31 Crossing?---At approximately the same time.

2Cressy
1And what sort of property was that?---That was again a house
2 and land package purchased through Devine Pioneer Homes.
3 The two properties were almost identical, one street
4 apart in Hoppers Crossing.
5And what was the purchase price for 12 Lisa Court, Hoppers
6 Crossing?---Again it would have been in the vicinity of
7 200,000.
8And how much did you put towards the purchase of that
9 property?---They were both pretty much purchased together
10 so again what I said before about giving James 2000-3000
11 in cash towards the deposit would have covered that.
12So is it 2000-3000 for the two combined or 2000-3000 for each
13 of them?---No. No. Just for the two combined.
14Did you make any payments towards the mortgage payments for
15 10 Hawkhurst Court, Hoppers Crossing?---No, I didn't make
16 any mortgage payments towards that property.
17What about Lisa Court?---Lisa Court was purchased for my mother
18 in James' name. Her rental in effect was the mortgage
19 repayments of the property.
20Did you do any work on Lisa Court once it was purchased?
21 ---I did a little bit of gardening with my mother and
22 helped with some paving in the backyard. That was about
23 it.
24Did you spend any money on any improvements, maintenance,
25 rectification at Lisa Court?---Nothing I can specifically
26 think of right at this moment.
27HIS HONOUR: Did your mother's rental payments cover the
28 mortgage payments?---But for a sum of $45 which James
29 covered.
30That's each month?---Yes. Again it was negatively geared.
31Yes.

2Cressy
1MR DEVRIES: I was about to ask that question Your Honour. I'm
2 indebted to Your Honour. 7 Inverloch Drive, Point Cook,
3 were you involved in the purchase of that property?---
4 Yes, I was.
5And what involvement did you have in the purchase of that
6 property?---Not much other than looking out the back
7 garden and seeing the For Sale sign pop up and telling
8 James that it was on the market.
9That was the one that you just mentioned your garden extended
10 into?---Yes, it was - it was right on the back of
11 2 Dorrington Street, so.
12Can you recall how much that was purchased for?---It was either
13 79 or 89,000.
14Did you put any money towards the purchase of that property?
15 ---Not directly that I can recall, no.
16HIS HONOUR: How was it paid for, mortgage?---We - I think we
17 added it onto Dorrington Street because we'd already been
18 in Dorrington Street for approximately nine months and
19 the house had gone up in value, so we refinanced that to
20 purchase the land, and everything was going up really
21 quickly in value, so we thought it was frugal to - - -
22I'm not sure - - -?---join them together.
23- - - it said who was making the mortgage payments on
24 Dorrington Street?---Mr Johnson was.
25Do you know how much that was?---I think it would have been
26 around 450 a week.
27How much did Inverloch - 450 a week or a month?---I think it
28 was about 450 a week - I'm thinking later on, combined
29 they must have been about 450.
30A week?---Yes.
31MR DEVRIES: The time you were living there you were working?

2Cressy
1 ---There were breaks between work and study, yes.
2What study were you doing?---I resumed high school at Taylors
3 College and got my - finished my high school education,
4 as I had left school early with the children. Then I
5 went on to TAFE and studied footwear design for three
6 years, I did start that while I was at the Point Cook
7 property, I started that 2003. So between study and the
8 children I did do work part-time, either with my
9 aromatherapy business or my adult service business.
10Now, who did the food purchases for your household during your
11 domestic relationship with Mr Johnson?---I did all the
12 family food shopping.
13Sorry?---I did all the family food shopping.
14Who paid for the food and other household supplies - - -?
15 ---I did.
16Can you give His Honour an indication of what the average food
17 and household bill would have been?---My grocery budget,
18 and including take away food, was always $300 a week.
19Is that right through the relationship or did it
20 vary - - -?---Pretty much, yes. Well, as the boys got
21 bigger they got hungrier, so that wasn't like that to
22 start with, but.
23Did that include food and take away for Mr Johnson's
24 children?---Yes it did.
25When they visited you?---Yes.
26Did you put any money towards mortgage payments at any stage of
27 your relationship?---No. All of my money went to
28 household expenses.
29What about utilities?---No, the majority of that was in his
30 name, he did most of that.
31Rates and insurance?---Well again if the property is in his

2Cressy
1 name of course it would make sense to have that in his
2 name as well.
3Repairs and maintenance to the properties that you lived in
4 from time to time, who paid for those?---Well normally
5 that was me as I've stated before.
6Did you go out very often?---Yes we wined and dined.
7Who paid for those?---Normally it was me with cash. He always
8 had cash problems or so he said.
9And what would be the average expenditure per week on eating
10 out and going out, visiting the zoo et cetera?---I would
11 take it fortnightly and I would say 180 to 200 for an
12 evening out, movies, dinner.
13MR JOHNSON: Sorry Your Honour I didn't catch that answer.
14HIS HONOUR: One hundred and eighty to 200 per fortnight for
15 dinner and the movies.
16MR JOHNSON I'm indebted, thank you.
17MR DEVRIES: I think she said evening out (indistinct). Now
18 would Your Honour just bear with me for a moment. I'm
19 just turning to some matters in the defence in counter
20 claim in this matter.
21HIS HONOUR: While Mr Devries is doing that, can I just
22 ascertain from you the status of all these properties.
23 Firstly Dorrington Street?---I believe it's soon to be in
24 the possession of the mortgagee.
25So there's a statutory notice on that is there?---I believe so,
26 yes.
27I'll work down the list, I think is easiest. Hawkhurst Court,
28 that's been sold has it?---I've got no idea about that
29 one Your Honour.
30Lisa Court?---Sold.
31Was there any equity left in that after the - - - ?---There was

2Cressy
1 an excess of - I'm sorry, I can't be precise. It was
2 either 21,000 or $25,000 after that was - - -
3Was that a mortgagee sale?---No it wasn't.
4So there was an excess of about 20 to 25,000 was there?
5 ---Yes.
6And did you get any of that?---No.
7Inverloch Drive?---Sold recently. I'm not quite sure as to how
8 much or what's happening with the proceeds there. That
9 is through Century - I'm sorry, no I can't be precise on
10 that.
11Was it a mortgagee sale or?---Yes it was a mortgagee sale.
12And you don't know if there's any balance left?---No, not
13 exactly.
14Queen Street is sold?---Yes it is.
15And I was told in opening by Mr Devries yesterday there was a
16 balance of $48,000 but the mortgagees claim their costs
17 of 55?---That's correct to my knowledge.
18MR DEVRIES: That's - the 48 was net of that 55. It's after
19 the 55 it was expected to be 48.
20HIS HONOUR: I misunderstood.
21MR DEVRIES: I might have - - -
22HIS HONOUR: So there's actually a balance of 183,000 but the
23 mortgagees claim their costs of 55 (indistinct) dispute.
24MR DEVRIES: Yes.
25HIS HONOUR: I see. Is that your understanding?---Yes I'm
26 sorry. I thought that's what you said.
27No perhaps I misunderstood what was put yesterday. Gibson
28 Street, the Caulfield property?---From the letter from
29 the Commonwealth Bank that's entwined with 7A Endeavour
30 Drive and that messy situation so.
31Yes. I think that covers it. Mr Devries.

2Cressy
1MR DEVRIES: In his amended defence and counter claim
2 Mr Johnson refers under the heading of "(Indistinct),
3 Theft and Burglary" to his records and possessions. Have
4 you - - -
5MR JOHNSON: Sorry Your Honour but there were a number of
6 thefts and burglaries so could we have a reference date
7 possibly to clarify that? It may assist.
8MR DEVRIES: I'm quoting directly from - - -
9HIS HONOUR: The counter claim, yes continue.
10MR DEVRIES: - - - the counter claim. Have you retained any of
11 Mr Johnson's records or possessions in your personal
12 possession or control?---No.
13Do you know where his - where records and his possessions may
14 be?---I believe they're kept in the Family Court archives
15 or evidence room, sorry whatever.
16Did you provide any of those to Victoria Police?---Yes I did.
17Did you do that voluntarily or under compulsion?---A bit of
18 both, but I gave them up willingly. They, they were
19 evidence so.
20At the time they came into your possession who did you believe
21 they belonged to?---They were our joint financial
22 information documents.
23When they came into your possession which premises were they
24 in?---At our property of No.2 Dorrington Street at Point
25 Cook.
26Mr Johnson says that you retained two mobile telephones. Did
27 you - have you got those two mobile telephones?
28 ---No. Those phones - - -
29Where are they now?---In evidence over at the Family Court.
30 They have evidence of him stalking me on them.
31At the time that - were they ever in your possession?

2Cressy
1MR JOHNSON: Your Honour that was a credibility - - -?
2 ---Temporarily before I could pass them onto my lawyer
3 for evidence. Before I could pass them onto my lawyer
4 for evidence, the police came and intercepted them.
5MR DEVRIES: At the time that you gave them to your lawyers,
6 did you believe they were yours, Mr Johnson's or joint
7 property?---Joint property.
8Do you know anything about a mobile modem card?---I know
9 nothing about that.
10Do you know anything about other telephony communications and
11 data storage devices?---No.
12Did you take or retain any unopened mail addressed solely to
13 Mr Johnson?---No.
14Did you take any personal, business or client mail or documents
15 addressed solely to Mr Johnson?---Not intentionally no.
16 And everything was handed back to the police anyway.
17All of the documents, records and items other than mobile
18 phones and telephony equipment, all that came into your
19 possession at 2 Dorrington Street, was that all handed to
20 the Victoria Police?---Yes, it was.
21Did you retain any of it after that?---No.
22Did you get any of it back from Victoria Police after that?
23 ---No, I think it's still in evidence as far as I'm
24 aware.
25HIS HONOUR: In evidence where?---At the Family Court.
26So they were taken by the police and I take it the police must
27 have been subpoenaed to the Family Court?---Yes, they
28 were.
29And all those matters were then put in evidence?---Yes.
30MR DEVRIES: If there's any controversy about the matter, my
31 instructors can give evidence that the - the items were

2Cressy
1 subpoenaed - were the subject of a subpoena issued by the
2 Federal Magistrates' Courts to Victoria Police. Victoria
3 Police initially objected to producing the documents
4 under - the documents and other items under subpoena and
5 ultimately they produced them under subpoena. They were
6 lodged with the Federal Magistrates' Court and presumably
7 they will remain with the Federal Magistrates' Court
8 until His Honour Federal Magistrate O'Dwyer hands down
9 his decision which is the decision I indicated to Your
10 Honour yesterday was listed for last Friday and was
11 unexpectedly - - -
12HIS HONOUR: Look, anyway, we know where the documents are.
13MR DEVRIES: Yes.
14HIS HONOUR: Right.
15MR DEVRIES: Sorry, I was just trying to attempt to answer Your
16 Honour's question.
17MR JOHNSON: Excuse me Your Honour, is there a process by which
18 those documents could be shown to Your Honour in these
19 proceedings? Would that be helpful to Your Honour?
20HIS HONOUR: That's a matter for you. I'm hearing evidence in
21 chief. Mr Devries is taking his client through it.
22MR JOHNSON: Sorry Your Honour.
23MR DEVRIES: At the time you took possession of the documents
24 and other records, leaving aside the telephones for the
25 moment, what was your intention when you acquired those
26 documents and records?---It was - I thought it was
27 financial information about our properties and our
28 financial situation that needed to be used in court. And
29 apart from what I said about the evidence and the mobile
30 phones, the majority - - -
31No, leave the mobile phones. We'll come to that. And did you

2Cressy
1 have any concern about what might happen to those
2 documents if they weren't secured?---After the theft of
3 all my other documents and my years of files just gone -
4 vanished, I was worried that they might get destroyed or
5 go seriously missing.
6The two mobile phones. Why did you take possession of
7 those?---Because James had - I'm sorry, Mr Johnson had
8 admitted to me that he had taken photo evidence of
9 stalking me. And he used that word stalking but he
10 admitted to me and so when I saw the phones there, I
11 realised that they contained the evidence.
12Did you access the photographs or the evidence that you talked
13 about on those phones?---Yes, I did see them.
14And what did they show?---Photos of my work premises, my car
15 and work premises, things like that.
16To save time sir, I'll anticipate a question that I expect to
17 come from my learned friend.
18HIS HONOUR: M'mm.
19MR DEVRIES: Prior to you getting possession of those records,
20 documents and two mobile phones, did you have any
21 discussion with your solicitors about those documents,
22 records and mobile phones?---No.
23Subsequent to you obtaining those various items, did you have
24 discussions with your then solicitors?---Yes.
25Now did they - without going into the actual content, did they
26 make any suggestions to you or give you any advice as to
27 what you should do with those items?
28 ---I'd already intended to give them - - -
29No. No. No. Just answer that question yes or no please?
31 ---No.

2Cressy
1And you gave them up to the police. Was that your idea to give
2 them up to police or somebody else's idea?---No,
3 Mr Johnson had reported an aggravated burglary. They
4 came in with guns blazing until they realised the
5 situation which I - - -
6No, you can't evidence about what might be in their state of
7 mind. Was it at the suggestion of the police, your own
8 motivation or your previous solicitors that you gave all
9 these items up to the police or a combination of some of
10 these?---I can say definitively they were rather
11 aggressive, I can say that they have been misinformed,
12 and I can also say they had a search warrant and I can
13 also say that I complied willing and handed up the
14 documents.
15So they showed you a search warrant?---Yes they did.
16Then they took possession of the documents and the mobile
17 phones?---Then I gave them possession of them, yes.
18Were you charged with any offences as a result of taking
19 possession of those items?---No I wasn't.
20Were you ever convicted of any offences as a result of the
21 probe?---No I wasn't.
22Have you been advised by the police as to whether they're going
23 to take any action against you as a result - - -
24HIS HONOUR: Is that relevant? As I understand it there's a
25 claim I think for conversion or for trespass to
26 goods - - -
27MR DEVRIES: It's also claimed that she perpetrated a theft,
28 theft and burglaries, Your Honour.
29HIS HONOUR: So what's the opinion of the police got to do with
30 it? Perpetrating thefts, this is a civil court, I take
31 it I read that as trespass to goods, annexure on the

2Cressy
1 case.
2MR DEVRIES: I suspect that's what it is, Your Honour, but I
3 don't wish to assist Mr Johnson in framing his
4 counterclaim, Your Honour - - -
5HIS HONOUR: No no but what the police think is irrelevant.
6MR DEVRIES: If Your Honour pleases. It's been suggested
7 through the course of these proceedings Ms Cressy, that
8 you've obstructed or attempted to obstruct the sale of
9 various of these properties. Have you taken any steps to
10 stop the sale of any of the properties the subject of
11 these proceedings?---Not at any point in time, I've in
12 fact assisted the sale of the properties. When James
13 came onto my property with a private investigator and
14 Tassielle Hassan, who was the realtor who sold us the
15 property in the first place, and he wanted to have a
16 viewing, a new viewing of the property and I took him
17 through the property. I wouldn't allow James to come in,
18 but I did not in any way prevent the sales, it was not in
19 my interest to.
20It's been suggested by Mr Johnson yesterday that you, having
21 been ordered by this court, to sell 2 Dorrington Street,
22 that you refused to do so, did you refuse to sell
23 2 Dorrington Street?---At no point in time did I refuse.
24Were there obstacles to your knowledge to you disposing of
25 2 Dorrington Street, pursuant to those orders?---The
26 orders didn't really give me power to sell the property,
27 although it seemed like that - - -
28HIS HONOUR: Is this relevant to any - is this relevant to
29 anything in the counterclaim?
30MR DEVRIES: Well, Your Honour, it's an allegation made by
31 Mr Johnson yesterday - - -

2Cressy
1HIS HONOUR: That's irrelevant. I am here to adjudicate the
2 claims by your client in the counterclaim.
3MR DEVRIES: Your Honour, I understand that, with respect, the
4 issue may arise, Your Honour, in respect to any orders
5 that Your Honour might make about the sale of any
6 properties that haven't been sold in that extreme
7 discovery that with great respect to Their Honours that
8 the precise wording of the orders made that were thought
9 to permit my client to sell the properties, aren't
10 recognised by the Titles Offices empowering her to do so
11 and I was only going to raise that at this stage. If
12 it's necessary, Your Honour, I can raise that at a later
13 stage, but there is some correspondence from the Titles
14 Office that basically says that the particular wording
15 adopted earlier in these proceedings doesn't have the
16 effect that it was intended to have.
17 If Your Honour is not assisted by that at this stage I
18 won't persist with that.
19HIS HONOUR: Well I don't see how it addresses the relevant
20 issue in the case at the moment, the question of relief
21 if I came to the view that the property should be sold, I
22 would deliver a judgment to that effect in precise
23 orders, if it involved that it would be of use to have
24 someone from the Titles Office advising as to how those
25 orders should be formulated. And I recall doing that in
26 my days at the Bar, to ensure that whatever orders are
27 made in relation to the property are recognised by the
28 TI. I think that's an appropriate time to rise.
29MR DEVRIES: Sorry, Your Honour, I wasn't aware of the time. I
30 can indicate, Your Honour, I doubt that I've got more
31 than a few moments left with the examination-in-chief.

2Cressy
1HIS HONOUR: Fine. Now I remind everyone, including you
2 Mr Johnson, we resume at 10 a.m. tomorrow.
3MR JOHNSON: Thank you, yes.
4HIS HONOUR: And I have an unfortunate habit of being punctual,
5 so I expect everyone to be here and ready to go at 10.
6MR DEVRIES: And it was 3 o'clock?
7HIS HONOUR: 3.30.
8MR DEVRIES: 3.30, Your Honour.
9HIS HONOUR: It was 3.30. Do you want to raise something
10 yourself, I know you are just quick out of the box.
11WITNESS: For Your Honour to adjourn as a courtesy - - -
12HIS HONOUR: You just can't wait for me to get out,
13 10 o'clock tomorrow.
14<(THE WITNESS WITHDREW)
15ADJOURNED UNTIL THURSDAY 4 DECEMBER 2008
16

2Cressy

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1HIS HONOUR: Mr Devries?

2MR DEVRIES: May it please Your Honour, this matter, at

3 present, is still proceeding. So, Your Honour.

4HIS HONOUR: Yes.

5MR DEVRIES: Your Honour, as foreshadowed last night, I sought

6 a ruling from the Ethics Committee as to whether I could

7 - or ought to continue in this matter.

8HIS HONOUR: Yes.

9MR DEVRIES: I also advised my client that she should seek

10 independent legal advice on the same matters with regard

11 to both my instructors and I. Although she is also a

12 defendant to Mr Johnson's counterclaim, she has not been

13 provided with or served with a copy of the document, or

14 otherwise provided with details of its contents, I'll

15 come back to that in a moment, Your Honour.

16HIS HONOUR: Yes.

17MR DEVRIES: The need for me to clarify my position made it

18 impossible for me to give her copies of a document that

19 extends to well over 200 pages, if you include the

20 attachments to the documents, that he - the defence and

21 counterclaim, Your Honour, is 156 pages, and it has, I

22 think, about eight - - -

23HIS HONOUR: This is in the other proceeding?

24MR DEVRIES: In the other proceeding.

25HIS HONOUR: Yes.

27 read that document in its entirety before she makes the

28 necessary decisions. Sorry, Mr Johnson doesn't appear to

29 be ready, Your Honour.

30MR JOHNSON: Your Honour, I have a medical condition which

31 prevents me from being able to sit down, I would like to

1.MI:SK 03/12/08 FTR:1 131 DISCUSSION

2HIS HONOUR: Well, Mr Devries - - -

3MR JOHNSON: I know, simply forgive me, Your Honour, I can't

4 sit down, I'm in too much pain.

6MR JOHNSON: Thank you, Your Honour.

7MR DEVRIES: He seems to be shuffling around and preparing

8 himself, which is very distracting to me, Your Honour.

9HIS HONOUR: Well, I agree with that, court starts at 10.30,

11MR JOHNSON: I'll explain my medical - - -

12HIS HONOUR: And my practice - - -

13MR JOHNSON: - - - I do apologise.

14HIS HONOUR: My practice is to come onto court at 10.30 at the

16MR JOHNSON: I do apologise, Your Honour, and I'll explain the

18HIS HONOUR: Yes, well, Mr Devries is outlining to me matters

19 pertaining to his condition, or his position, are you

20 able to listen attentively for that?

21MR JOHNSON: Yes, Your Honour.

22HIS HONOUR: Thank you, Mr Devries.

23MR DEVRIES: In the meantime, Your Honour, I've received an

24 interim ruling from the Ethics Committee, enabling me to

25 continue to act if that is the wish of my client and my

26 instructors as best they advise. The process of getting

27 a final ruling is underway, Your Honour. I had to - one

28 of the conditions of the interim ruling is I had to make

29 an application for a final ruling, do that overnight,

30 that's been emailed to the Ethics Committee, and

31 obviously, if the final ruling is different to the

1.MI:SK 03/12/08 FTR:1 132 DISCUSSION

2 Now, the preferred option of the Ethics Committee was for

3 me to have made an application to have the counterclaim

4 struck out before I counterclaim the other matter struck

5 out before I proceeded further with this matter, but that

6 would have entailed me providing an affidavit, and -