Brothel Gate Day 12 Full Day

1MR DEVRIES: The matter is still proceeding Your Honour.
2HIS HONOUR: Thank you Mr Devries. We seem to have in court a
3 large number of people and I have on the court file a
4 large number of subpoenas that have subpoenaed to the
5 court by Mr Johnson I think. It might be best if I
6 effectively take a roll call from who is here and see
7 what is occurring in relation to those subpoenas. If
8 each of you could step forward one after the other we
9 will try and sort this out.
10DR INGLEBY: Good morning Your Honour. My name is Dr Richard
11 Ingleby of counsel.
12HIS HONOUR: Yes.
13DR INGLEBY: My name will be familiar to you because I drew the
14 statements of claim.
15HIS HONOUR: Yes.
16DR INGLEBY: I appeared on behalf of the plaintiff in two
17 pre-trial procedures before Justice Mandie on or around
18 19 February and before Justice Whelan on or about
19 12 March.
20HIS HONOUR: Yes.
21DR INGLEBY: I have been subpoenaed.
22HIS HONOUR: You've been subpoenaed.
23DR INGLEBY: I haven't been properly served but I attend
24 because I have been given a document which - it was put
25 on my desk and has the name of subpoena so as a courtesy
26 to Your Honour I am here.
27HIS HONOUR: Do you wish to make any application in relation to
28 that subpoena?
29DR INGLEBY: Paragraph 2 says I will be required to give
30 evidence in respect of my dealings as previous counsel
31 for the plaintiff with Harwood Andrews with Mr Graham
1.LL:MM 09/02/09 FTR:1-2 180 DISCUSSION

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1 Devries, counsel and with the plaintiff.
2 I applied to set it aside.
3HIS HONOUR: You will be applying to set it aside?
4DR INGLEBY: Yes.
5HIS HONOUR: Perhaps if we just take a roll call first thanks
6 Dr Ingleby. Thank you for that. You will be making
7 application to set it aside. Just a moment. Yes?
8MS REES: If Your Honour pleases, my name is Katherine Rose
9 Rees. I am a member of counsel. I was the mediator in
10 this matter on 26 June 2008.
11HIS HONOUR: In this court or in another court Ms Rees?
12MS REES: This Supreme Court proceeding.
13HIS HONOUR: In these proceedings and you've been subpoenaed
14 here by Mr Johnson?
15MS REES: I have Your Honour. My involvement with the matter
16 is in relation to the mediation.
17HIS HONOUR: Do you make any application?
18MS REES: Your Honour, according to the mediation agreement
19 signed on that day, the mediation was without prejudice
20 and confidential.
21HIS HONOUR: It is privileged.
22MS REES: And it is only by order of the court that I can be
23 ordered to say anything about what happened on that day.
24HIS HONOUR: You would have been - could only be the party to
25 privileged communications between the parties?
26MS REES: The first time Your Honour - - -
27HIS HONOUR: Do you make any application in relation to - - -
28MS REES: I would like to be excused from giving evidence in
29 relation to that Your Honour.
30HIS HONOUR: Again, if I could note that and we'll just have to
31 get some order into this chaos. I will just see what

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1 else is in line. Would you mind just standing there for
2 a moment thanks Ms Rees.
3MS REES: If Your Honour pleases.
4HIS HONOUR: Thank you for your attendance.
5MR BERRY: If Your Honour pleases, my name is Peter Bernard
6 Berry. I'm the principal of Berry Family Law, the
7 solicitors for Ms Cressy and I will be seeking an order
8 that the subpoena be set aside.
9HIS HONOUR: Thanks Mr Berry. Could you also wait in line
10 please?
11MR BERRY: Yes Your Honour.
12HIS HONOUR: Thank you very much.
13MR OVEN: I am the counsel for the Legal Services Commissioner
14 who is present in court today.
15HIS HONOUR: Yes.
16MR OVEN: An application to set aside the subpoena.
17HIS HONOUR: Yes and you foreshadowed this last Thursday didn't
18 you Mr Oven?
19MR OVEN: Yes I did.
20HIS HONOUR: Thanks Mr Oven. Without wishing to invite anyone
21 else, is anyone else here in answer to a subpoena? That
22 is the full gamut of them. Do you press the call of all
23 those four subpoenas Mr Johnson?
24MR JOHNSON: Indeed, and the ones that we discussed on Thursday
25 last week Your Honour. I press those also.
26HIS HONOUR: Which ones are those?
27MR JOHNSON: The ones which Your Honour ruled on and as I
28 informed Your Honour's associate on Friday afternoon, I
29 will be appealing those orders.
30HIS HONOUR: That is entirely a matter for you.
31MR JOHNSON: Thank you Your Honour.

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1HIS HONOUR: We didn't discuss them. I heard legal arguments
2 and I ruled that the three of them should be struck out
3 so that is the status of those three subpoenas.
4 In relation to the other four, is there anyone who
5 can have a claim of urgency for me to hear their
6 application first?
7MR JOHNSON: Excuse me Your Honour, I do have some questions
8 about the procedure this morning. I realise it is quite
9 extraordinary and particularly how this corresponds with
10 the fact that you have already heard three such
11 applications and Your Honour and my learned friends as of
12 now are on notice also that I am appealing those
13 decisions.
14HIS HONOUR: Yes.
15MR JOHNSON: I'm just wondering, is it a sensible use of Your
16 Honour's time to be hearing these objections even pending
17 the Court of Appeal determination - - -
18HIS HONOUR: Mr Johnson, you have brought four people to court
19 - four people who are busy. If they've been brought to
20 court for a legitimate purpose then you have a right to
21 call and give evidence before me and you will be calling
22 them to give evidence no doubt shortly.
23 If however, you cannot persuade me that any of their
24 evidence is either relevant or otherwise admissible, then
25 the subpoenas will be set aside. I warned you about this
26 when we adjourned last year that we had a discussion
27 which I tried to assist you in which you foreshadowed a
28 number of subpoenas.
29 I assisted you by identifying I think three who I
30 thought might be relevant for your case. The others who
31 on the description that you told me then seemed to be

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1 entirely irrelevant.
2 It is entirely appropriate that I hear any
3 application. The witnesses have been compulsorily
4 brought to court by subpoena which is an order of this
5 court to have that subpoena set aside and I intend to do
6 that now.
7MR JOHNSON: Your Honour, I really wish - I believe it is my
8 duty to ask the question for future reference. There is
9 another young lady, a police inspector who has been
10 subpoenaed and she will be attending at 2.15.
11HIS HONOUR: Yes, thank you.
12MR JOHNSON: I didn't want to waste too much of her day. May I
13 ask in the process - reading over the transcript for
14 Friday - I give a little bit of background Your Honour.
15 The first morning of the first trial and Mr Devries'
16 preliminary application I am sure Your Honour will
17 recall.
18HIS HONOUR: Yes.
19MR JOHNSON: I certainly will never forget it. One of the
20 expert witnesses, Ms Marianne Love gave some very
21 compelling and credible expert testimony which Your
22 Honour ultimately agreed with but Ms Love was in court
23 while we had a number of very complicated legal
24 submissions argued that I submit Ms Love simply wasn't
25 able to keep up with. They confused her.
26 I submit that some of the lawyers in court probably
27 weren't able to keep up with it either and as a result
28 not only that but also hearing the testimony by Dr List
29 the witness who spoke before her - that had an
30 unfortunate colouring in Ms Love's evidence, not relevant
31 to the outcome of that application but it traces through

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1 and it is very noticeable in the terms of your ruling
2 that day Your Honour and so I would say that rather than
3 having all of these witnesses in court hearing very
4 complicated submissions of each other, I would say please
5 inform me what the relevant procedure is? Should each of
6 these applications be heard separately - - -
7HIS HONOUR: In a rather complicated way you have put to me as
8 I understand it, an application that as one witness is
9 asked to be excused from their subpoena, the others
10 should remain outside court. Is that what you are asking
11 me?
12MR JOHNSON: Yes Your Honour exactly.
13HIS HONOUR: Yes. That would seem to me to a reasonable
14 request and will do that. I apologise to those in court
15 for the inconvenience.
16 I think in fairness, Mr Oven foreshadowed his
17 application so I'll simply hear that first. The others I
18 will hear unless any of the counsel need to be in court
19 this morning or this afternoon I'll hear seriatim but
20 judging on past experience, I can give you not before
21 times if that assists. Mr Ingleby, you are about to get
22 to your feet.
23MR INGLEBY: I'm not in court today. I'm booked out to prepare
24 for a trial in May. I can be on ten minutes' notice
25 because I'm just in another office in the Central
26 Business District.
27HIS HONOUR: Yes.
28MR INGLEBY: My application will take 60 seconds.
29HIS HONOUR: I understand that for you (indistinct) but my
30 experience and we went through three took a couple of
31 hours on Thursday.

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1MR INGLEBY: Can I come back at 12 noon?
2HIS HONOUR: What I think I'll do is I'll put you on notice.
3 I'll drop you to the last wicket down and when the second
4 last one is heard, if you could be on notice that you
5 will be needed at court.
6MR INGLEBY: I'll leave my mobile number with Your
7 Honour's - - -
8HIS HONOUR: I'll do that Dr Ingleby.
9MR INGLEBY: Thank you.
10HIS HONOUR: Subject to that I'll hear Mr Oven and then I'll
11 just go down the order in which people stepped forward
12 today. Ms Rees, Mr Berry and then Dr Ingleby.
13 Ms Rees I would think - safely I can say not before
14 quarter past 11. I don't know if that assists you at
15 all.
16MS REES: Yes Your Honour.
17HIS HONOUR: I apologise for the inconvenience. Mr Berry, I
18 think we can safely say probably not before at least
19 11.30. I don't know again if that is any comfort to you.
20MR BERRY: It makes no different.
21HIS HONOUR: Would I would ask, pursuant to the request by
22 Mr Johnson, if Dr Ingleby, Ms Rees and Mr Berry could
23 kindly step outside while the first application is being
24 heard.
25 Mr Oven, this rather large pile of subpoenas before
26 me, find the one that affects your client. Here it is.
27MR OVEN: If it is any use it is dated 20 January 2009.
28MR JOHNSON: Excuse me Your Honour, it may assist the court if
29 you are aware that I have not received any material
30 (indistinct) Commissioner in opposition to this
31 application.

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1 There was an attempt to send me an email with some
2 attachments which I don't have the technical resources to
3 receive. That was done on Thursday 5 February so much
4 like the hearing on Thursday morning that Ms Sofroniou
5 brought, I haven't seen materials for this morning's
6 opposition to my subpoena Your Honour.
7HIS HONOUR: You were put on notice last Thursday and you've
8 been put on notice since last December by me that I would
9 not be surprised if parties who come to court in answer
10 to subpoenas such as the ones you've foreshadowed, may
11 well make such an application. You are certainly on
12 notice in relation to this one and I'll hear it.
13 Mr Oven, thank you? Is this just - - -
14MR OVEN: No, it's to give - - -
15HIS HONOUR: To give evidence and produce documents.
16MR OVEN: Perhaps if I could deal with the first part? To give
17 evidence.
18HIS HONOUR: Yes.
19MR OVEN: The Commissioner seeks to set it aside on the basis
20 that it is a process vexatious and oppressive for three
21 reasons.
22 The first of the reasons is that it seeks evidence
23 which is not relevant to any issue in this proceeding.
24 By way of background, Mr Johnson made a complaint against
25 Mr Hanlon who as I understand it is the 2nd defendant to
26 the counterclaim.
27 Mr Hanlon has made a complaint against Mr Johnson
28 and Mr Devries who is the counsel for the plaintiff, has
29 made a complaint against Mr Johnson, all of those to the
30 Legal Services Commission and the Commissioner - a
31 delegate of the Commissioner has dismissed those three

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1 complaints ostensibly on the basis that the complaints
2 concern with some respect matters currently on foot in
3 this proceeding or in the Federal Magistrates' Court
4 proceeding. There is an invitation at the end of those
5 proceedings, depending on what the findings are to make
6 the complaint again.
7HIS HONOUR: Yes.
8MR OVEN: In terms of why Mr Johnson wants to call the
9 Commission, if I could hand up a bundle of documents
10 including a covering letter from Mr Johnson which came
11 with the subpoena - - -
12MR JOHNSON: May I examine those please Your Honour?
13HIS HONOUR: I'm sorry?
14MR JOHNSON: May I have a look at those please?
15HIS HONOUR: What were these documents again Mr Oven?
16MR OVEN: There are three documents. The first one that I was
17 going to take you to is a letter dated - - -
18HIS HONOUR: Did you say these came with the subpoena did you?
19MR OVEN: No, the first document. Which is dated – a letter
20 dated 22 January 2009.
21HIS HONOUR: That came with - - -
22MR OVEN: That came with the subpoena.
23HIS HONOUR: Right. Now, that's a letter, Mr Johnson, Sutton
24 Lawyers to Ms Victoria Marles, Legal Services
25 Commissioner, 22 January 2009, right?
26MR JOHNSON: There have been many letters, Your Honour, I would
27 like to have a glance at it to visually identify - - -
28MR OVEN: If I could - - -
29HIS HONOUR: Do you have a spare copy? Thank you very much,
30 Mr Oven.
31MR OVEN: The second document is - - -

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1MR JOHNSON: Your Honour, Your Honour, this is, on the face of
2 it, a facsimile of 20 pages, I believe you've only been
3 handed about ten pages. The full copy is actually an
4 exhibit to my affidavit of 2 February, so you do have the
5 full 20 pages available. I get very nervous about parts
6 of documents being handed up in evidence, as you know,
7 Your Honour.
8MR OVEN: If I could continue - - -
9HIS HONOUR: Yes, now, you can response in a moment,
10 Mr Johnson. You know sufficient about court procedure
11 that one party goes at a time.
12MR OVEN: The letter is a – the first document is a letter
13 dated 22 January.
14HIS HONOUR: Yes.
15MR OVEN: It is a two page document, and then attached to that
16 is a further facsimile that Mr Johnson sent to Mr Colin
17 Neve - - -
18HIS HONOUR: Yes.
19MR OVEN: That consist of the entire first document. The
20 second document is a defence and counterclaim that
21 Mr Johnson has filed in Supreme Court proceeding 1963 of
22 2008, it's a document that Mr Johnson has prepared and
23 filed with the court, you should be familiar with it.
24HIS HONOUR: Yes.
25MR OVEN: The third document is an excerpt from the Legal
26 Profession Act, Division 2 of Part 6.4.
27HIS HONOUR: Yes.
28MR OVEN: And it concerns an obligation, a statutory obligation
29 of confidentiality that the Commission has, and which I
30 wish to address the court on.
31HIS HONOUR: Yes, I follow.

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1MR OVEN: The - - -
2HIS HONOUR: What does he seek to subpoena the Commissioner to
3 say? Has he indicated in his letter?
4MR OVEN: Well, the covering letter on the first page says the
5 reasons are set out in the attached letter to the
6 Chairman of the Legal Services Commission, or the Legal
7 Services Board, it should be, and then in Paragraph 4, it
8 says, "You ever for a second doubted that your office has
9 the functions, powers, and responsibilities granted by
10 very clear and extensive statutory provisions, Chapter 4
11 of the Legal Practice Act 2004, or you ever seriously
12 thought than a non-reported, ill considered, single judge
13 Supreme Court decision could in some ... (reads) ...
14 commence legal proceedings, a test case to answer those
15 doubts", and extensively, he wants to ask questions about
16 that, and if I can go to p.4 of the attached letter, it
17 says, "I've worn out His Honour's voice, and both his and
18 mine patience, in trying to explain the Legal Services'
19 absurd legal position of" – I take it "or" should be
20 "of", "Running away from jurisdiction" - - -
21HIS HONOUR: Sorry, where are you, page?
22MR OVEN: On p.7.
23HIS HONOUR: Of the letter to Mr - - -
24MR OVEN: To Mr Neve. Sorry, Your Honour.
25HIS HONOUR: No. With a seven up the top there?
26MR OVEN: It's got a seven in the middle of the page, and then
27 on the first full paragraph has a no. 8 next to it.
28HIS HONOUR: Yes, you're quite right.
29MR OVEN: So there he says, "I've worn out His Honour's voice,
30 and both his and mine patience, in trying to explain the
31 Legal Services' absurd legal position of running away

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1 from jurisdiction and statutory powers and
2 responsibilities, so I instead leave it to the Legal
3 Services Commissioner to come before Mr Justice Stephen
4 Kaye when the trial of these proceedings resumes, and she
5 can explain her absurd and embarrassing position, should
6 she wish to do so". So extensively, what Mr Johnson is
7 seeking is to have the Commissioner come into court and
8 discuss what her powers are under the Legal Profession
9 Act 2004 in the context of complaints that have been
10 made. That's simply not an issue that's relevant to this
11 case at all. It is relevant to another case, and that's
12 a case which Mr Johnson has bought a counterclaim against
13 the Legal Services Commissioner as the tenth named
14 defendant, and I've provided you with an excerpt
15 from - - -
16HIS HONOUR: Yes.
17MR OVEN: What is a 156 page document. You'll note – if I can
18 ask Your Honour to turn to p.89 of that document, which
19 is the third page in the excerpt I've given you.
20HIS HONOUR: Yes.
21MR OVEN: You'll see that there, it's pleaded that basically
22 since the issuing of the proceedings, these proceedings
23 have spawned three different sets of complaints which
24 have been sent to the attention of the Legal Services
25 Commissioner, the rest of the pleading then goes on to
26 deal with those, and perhaps if I could just deal with
27 the last one mentioned there, which is the complaint by
28 Mr Johnson regarding the conduct of Mr Hanlon.
29 He sets out in Paragraph 163 a letter that the Legal
30 Services Commissioner sent in response to that complaint,
31 and then, at the top of p.191, in Paragraph 164, it says

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1 – the defendant says that the Legal Services
2 Commissioner, by virtue of receiving defendant's
3 complaint materials about Hanlon & Harwood, was under
4 statutory duty to investigation those allegations of
5 misconduct against them to the full extent of her powers
6 and responsibilities (indistinct) act, but has instead
7 failed to do her statutory duty under that Act.
8 Paragraph 165 expands on that, and talks about
9 misinterpretations and powers of responsibilities, and
10 Paragraph 166 seems to be a claim for breach of statutory
11 duty. Now, the reason why I raise that is that this is –
12 to the extent that there is evidence relevant about
13 statutory powers and so on, it's relevant to the other
14 proceeding, it's not relevant to this proceeding at all,
15 and it is abuse of the process of the court to seek – to
16 issue a subpoena in a proceeding for the purpose of
17 obtaining evidence or information which will be used in
18 another proceeding. The last ground which we seek to set
19 aside – the Commissioner seeks to set aside the subpoena
20 to give evidence arises from the Legal Professional Act
21 2004. Does Your Honour have the excerpt that I've handed
22 up - - -
23HIS HONOUR: Yes, I've just - - -
24MR OVEN: You'll note that in Part 6.4.5, it's provided that
25 this section applies to a person who is or has been, and
26 in sub-Paragraph B, it refers to the Commissioner.
27 Turning over the page to sub-s.2 of that section,
28 provided that a person to whom this section applies, must
29 not directly or indirectly make a record of, disclose, or
30 communicate to any person any information relating to the
31 affairs of any person or law practice acquired in the

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1 performance of functions under this Act. Then what
2 follows in – firstly in sub-Paragraph A of sub-s.2 are
3 two exceptions, and likewise, in sub-s.3, there's two
4 further exceptions, and perhaps if I could deal with
5 those each in this case?
6HIS HONOUR: Yes.
7MR OVEN: The first one is necessary to do so for the purpose
8 of or in connection with the performance of a function
9 under this Act. That doesn't apply in relation to this
10 subpoena. The second one, the person to whom the
11 information relates gives written consent to the making
12 of the record, disclosure, or communication, no such
13 written consent has been given, though it was conceded
14 that people could provide that written consent at a later
15 stage. In terms of sub-s.3(a), producing a document or
16 giving evidence to a court or tribunal in the course of
17 criminal proceedings, or proceedings under this Act, this
18 proceeding is not a criminal proceeding, nor is it a
19 proceeding under the Legal Profession Act 2004, and then
20 the last one (indistinct) is the suspected offence to the
21 police or assisting in the investigation is not relevant
22 as well.
23 So in terms of the subpoena to give evidence, we say
24 that should be satisfied on those three grounds, that is
25 that it's not – it seeks evidence that – not relevant to
26 this proceeding, that it seeks evidence, while not
27 relevant to this proceeding, is relevant to another
28 proceeding, and thirdly, it seeks to – a breach of the
29 obligation of confidentiality the commissioner owes under
30 the Legal Profession Act 2004.
31HIS HONOUR: Well, your client, by statute, is proscribed from

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1 giving evidence of the type sought to be elicited under
2 subpoena.
3MR OVEN: If it's restricted only to giving evidence about
4 what - - -
5HIS HONOUR: General duties.
6MR OVEN: - - - functions are under the Legal Profession Act,
7 and that would not - - -
8HIS HONOUR: Yes.
9MR OVEN: Run up against the confidentiality provision, but
10 again, what is the relevance of that to this proceeding?
11HIS HONOUR: Well, I agree with that. If it goes to issues
12 relating to conduct of practitioners, that has no
13 relevance to this proceeding, so far as I can see, but
14 it's also proscribed.
15MR OVEN: Indeed, and that's particularly relevant in relation
16 to the subpoena to produce.
17HIS HONOUR: Yes.
18MR OVEN: If Your Honour looks at the subpoena - - -
19HIS HONOUR: Just a moment.
20MR OVEN: To produce, does Your Honour have the subpoena?
21HIS HONOUR: I do.
22MR OVEN: You'll notice there's a list of documents and things
23 for production, and what they are in the first paragraph
24 is effectively complaints received by the Legal Services
25 Commissioner, if those documents exist, received by the
26 Legal Services Commissioner, in the context of her
27 obligations under the Act, now, they would all be covered
28 by the statutory obligation of confidentiality.
29 Likewise, the second category of documents, copies of all
30 correspondence sent by the Legal Services Commissioner
31 basically in response to the complaints, that too would

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1 be covered by the obligation of statutory confidentiality
2 referred to before.
3 Again, none of those documents would be relevant to
4 any issue in this proceeding, and there is one extra
5 ground on which we seek to set aside that subpoena, which
6 is that Mr Johnson already has those documents in his
7 possession because he's been involved in the complaints
8 procedure, and if I could illustrate that by going back
9 to the counterclaim filed by Mr Johnson?
10HIS HONOUR: So he would have all the documents in the
11 Categories 1(a) to (e) in his possession?
12MR OVEN: Well, the – in terms of his - - -
13HIS HONOUR: In relation to correspondence?
14MR OVEN: - - - I'm instructed that there were documents which
15 meet the description in 1(a), (b), and (e), but there are
16 documents which meet the description - - -
17HIS HONOUR: No, I see.
18MR OVEN: - - - in (d), (e), or (f).
19HIS HONOUR: Yes, so he has all the documents in any event.
20MR OVEN: Well, as - - -
21HIS HONOUR: Corresponding to what's set out in Paragraph 2 in
22 his possession.
23MR OVEN: In terms of the complaints procedure, when a
24 complaint is made, a copy of that is provided.
25HIS HONOUR: Yes.
26MR OVEN: As part of the complaint procedure, and the response
27 is also provided.
28HIS HONOUR: Yes.
29MR OVEN: Statutory obligation. I could take you to the
30 counterclaim and show how he's referred to those
31 documents in the counterclaim.

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1HIS HONOUR: Yes.
2MR OVEN: And said that copies of those documents can be
3 obtained from his solicitor's office.
4HIS HONOUR: M'mm.
5MR OVEN: If it's suggested that, in reply, that he doesn't
6 have those documents, then I may take you through that
7 exercise, but otherwise, I'll leave it at that.
8HIS HONOUR: No, I understand that.
9MR OVEN: Thank you.
10HIS HONOUR: Were provided to – were they provided pursuant to
11 simply good practice, or pursuant to a statutory
12 obligation?
13MR OVEN: Both, there's a - - -
14HIS HONOUR: Both, yes, yes.
15MR OVEN: There's a requirement, generally, in terms of
16 providing complaints.
17HIS HONOUR: Yes.
18MR OVEN: But there's also requirements – statutory obligation
19 to notify in relation to the outcome of complaints.
20HIS HONOUR: Yes, yes, I had some recollection of that. Thank
21 you, Mr Oven, it's of great assistance. Mr Johnson,
22 you've heard the grounds upon which the Legal Services
23 Commissioner seeks to set aside the subpoena, both to
24 give evidence and to bring documents to this court. What
25 do you say in response?
26MR JOHNSON: I'd like to thank Mr Oven for a very succinct and
27 helpful presentation. I'd like to just go through and
28 clarify some of the documents Mr Oven handed up first,
29 and then I'll - - -
30HIS HONOUR: I'm sorry, yes, I should in fact perhaps mark them
31 as exhibits in this voir dire.

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1
2#EXHIBIT A - Copy letter from Sutton Lawyers to
3 Victoria Marles, Legal Services
4 Commissioner, dated 22/01/09, together
5 with attached copy letter by Sutton
6 Lawyers to Colin Neve, Chairman, Legal
7 Services Commission, dated 22/01/09, and
8 attachments thereto.
9
10#EXHIBIT B - Copy extracts from defence and
11 counterclaim in respect of Supreme Court
12 Proceeding 9263 2008.
13MR JOHNSON: Thank you, Your Honour.
14HIS HONOUR: Yes, sorry, Mr Johnson, now you proceed.
15MR JOHNSON: I'll run through my notes of Mr Oven's
16 presentations Your Honour. Mr Oven said - he asserts
17 that my subpoena is an abuse of process, vexatious and
18 oppressive and the hard problem I have is because I said
19 that in respect of the plaintiff's statement of claim.
20 So I think that once you start an abuse of process,
21 I mean how do you cure it. Geoffrey Robertson talks
22 about whenever you have bad process or bad claims, the
23 only way to deal with it is by a bad defence argument.
24 I'm not suggesting my defence argument is bad but
25 once a scandal opens, the only way to deal with a scandal

26 is inherent (indistinct).
27 In terms of the background to the complaints. There
28 is actually a fourth complaint Mr Oven didn't mention.
29 It is in the materials he handed up to you, the letter of
30 22 January this year to Mr Colin Neave AM, the Chairman
31 of the Legal Services Board is many things, including a
32 complaint, a whistleblower's complaint regarding Victoria
33 Miles for the five reasons I set out very succinctly on
34 one page I fear (indistinct) reprisal actions from the
35 Legal Services Commission. There is also a complaint
36 about Mr Devries substantial - you have those materials

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1 available to you Your Honour under one of the exhibits to
2 my affidavit of the 2nd of this month.
3 There are four complaints on foot Your Honour. It
4 is also a complaint under the - I understand Victoria
5 Miles is an Australian law practitioner and so I'm also
6 making a (indistinct) whistleblowers and under her own
7 special legislation but under the general Chapter 4
8 provisions.
9 Your Honour, the concern I have - and it comes to
10 your barometer test of what is relevant in this case. If
11 I can put this in very simple, non-lawyers' terms. The
12 plaintiff's claim is in the language of Part 9 of the
13 Property Law Act v. Constructive Trust. It is a property
14 case.
15 My response is that's scandalous. I use the words
16 abuse of process, vexatious and oppressive claim. It is
17 fraud. It is criminal. It is misconduct by your
18 solicitors - I'm sorry Your Honour constantly - and I
19 realised this when I got home on Thursday. Your
20 barometer test for what is a relevant issue in this
21 proceeding seems to be too much emphasis on the Part 9 in
22 the claim - the cry out by the plaintiff and not looking
23 at the fraud or the misconduct in my response to those
24 claims.
25HIS HONOUR: I don't agree with that because time and again ad
26 nausea throughout this proceeding including last
27 Thursday, I have directed you specifically to the
28 pleadings both delivered by the plaintiff and to your own
29 pleadings. I have reminded you time and again, this case
30 is being run on the issues pertaining to the causes of
31 action and defences agitated in the pleadings.

2Cressy
1 This is a court of pleading. It always has been and
2 that the parties have been required on all sides to
3 adhere to them and only to adduce relevant and admissible
4 evidence in relation to them.
5 You have drafted the counterclaim yourself. I have
6 time and again reminded you the ambit of the counterclaim
7 which you have directed both to the plaintiff and also to
8 Mr Hanlon and to Harwood Andrews.
9MR JOHNSON: Your Honour, I might address the second point
10 which was Mr Oven's suggestion that there were two
11 distinct, unconnected proceedings and I am somehow
12 fishing in these proceedings for evidence for the later
13 proceedings.
14 Firstly, let me hand you up because it is more than
15 160 pages - it's more like 300 pages. This is the full
16 defence and counterclaim of Proceedings 9263 of 2008.
17HIS HONOUR: That is a proceeding by a trust company - - -
18MR JOHNSON: One of my mortgagees Your Honour initially against
19 me and once again I am cast in the role of the unwilling
20 hit upon defendant Your Honour. I'm defending myself.
21HIS HONOUR: What property does that relate to?
22MR JOHNSON: That one is one of the Point Cook properties
23 Your Honour.
24HIS HONOUR: Sorry?
25MR JOHNSON: One of the Point Cook properties. I expect all
26 the mortgagees will be joined very shortly and assorted
27 other characters.
28 Your Honour when this trial - if we can cast our
29 mind back to 2 December before we got sidetracked on a
30 morning and a bit wasted on an Order 15 application by a
31 person who didn't even have standing to bring it, I came

2Cressy
1 along and said, "Your Honour, this has been set down for
2 two days. It's been set down on a misleading basis for
3 two days. There hasn't even been a proper discovery
4 process. The pleadings are settled. There is a need for
5 both these plus the other court proceedings to be heard
6 together". There wasn't time for them to be combined.
7 There were also orders gagging me - orders made by
8 Justice Kavanagh and Justice Hansen in June and July of
9 last year - gagging me from even talking to the plaintiff
10 in those proceedings which is just extraordinary Your
11 Honour - extraordinary.
12 My submission was that the two matters should be
13 heard together. My financial rack and ruin was at the
14 bottom of the J curve although I didn't use that formal
15 language on the morning. I was a little unprepared that
16 day Your Honour.
17 There was no urgency for me prior to the proceedings
18 to proceed ahead of the proper proceedings. I fear
19 everything that we have litigated in the past ten non-
20 consequential days is going to have to be re-litigated
21 anyway. Things are much better articulated. I'd had an
22 opportunity between the one hour at 3 a.m. on the
23 February morning when I drafted that particular
24 counterclaim document just as a holding thing, rushed to
25 get there before a Practice Court hearing before Justice
26 Mandie. I had a chance to look up some pleading text
27 books Your Honour so it is still a very unenthusiastic,
28 amateur non-litigation pleading that document but it's
29 pretty thick. It's pretty chunky. Mr Oven has obviously
30 acknowledged that the very evidence that I am asking
31 Legal Services Commissioner to produce would be relevant

2Cressy
1 in these proceedings if they heard concurrently with
2 those ones which was my initial application - - -
3HIS HONOUR: I've rejected that application. There are a
4 number of bases upon which it has been rejected. You are
5 aware of them.
6MR JOHNSON: The simple fact that there should not be two
7 proceedings can hardly used against me (indistinct) that
8 because they've been separated. I hope they'll shortly
9 be joined. That hearing part of the evidence of the
10 collected proceedings in this bit rather than all in the
11 latter bit is an abuse of process. It's an embarrassing
12 argument Your Honour. It's not a situation I created.
13 I'm grateful to my learned friend Mr Oven for
14 frankly admitting that the evidence that I wish the Legal
15 Services Commissioner to give this stay in this
16 proceeding is relevant to the true bigger proceeding.
17 I'll bear that in mind should it be necessary for me to
18 appeal the orders that you make on Mr Oven's application
19 Your Honour. I will bear that in mind.
20HIS HONOUR: Good.
21MR JOHNSON: In terms of saying that all of the documents are
22 confidential, with respect Mr Oven, he then corrected
23 that by saying that they are not confidential between the
24 parties.
25 I should have full copies of all the documents
26 listed in Item 1 of the list of documents. In fact I
27 don't. I've twice asked for a copy of the cover letter
28 document - Item 1A - the letter from the Legal Services
29 Commissioner dismissing my complaint against Mr Harwood.
30 Not one complaint but three complaints. In sequential
31 order, they were Complaint No.1, Complaint No.2 and

2Cressy
1 Complaint No.5. I never got around to writing up three
2 and four because by the time I did I got this letter or
3 half of a letter saying "Mr Johnson, we are sorry but
4 there is this really old case that was decided, it is
5 unreported, 14 years before the Legal Services Commission
6 was even created which strips us of all our powers so you
7 have to take your concerns about Mr Hanlon's misconduct
8 and it has to be dealt exclusively by the judge".
9HIS HONOUR: Mr Johnson - time and again Mr Johnson I have
10 reminded you of the issues in this case. It seems to me
11 you are not addressing the points made by Mr Oven.
12 I put this to you simply to assist you because if
13 there is anything relevant to the issues in this case
14 that can be educed from Ms Miles, I'd be concerned you
15 have the opportunity to do it.
16 But Mr Oven has submitted that the evidence that you
17 have foreshadowed calling from Ms Miles is irrelevant.
18 That if it bears on anything, it could only bear on the
19 counterclaim that you have made in the other proceeding
20 and if you are seeking to adduce evidence in this
21 proceeding for use in that proceeding, it is patently an
22 abuse of the process and thirdly, that she is subpoenaed
23 would be under a statutory proscription from giving that
24 evidence.
25 The same objections plus a further one have been
26 made in relation to the documents sought to be brought to
27 court under the subpoena.
28 You are not assisting yourself and I've had to
29 remind you in order that you do yourself justice, you are
30 not assisting yourself by diverting on to other issues
31 which are not salient to this case.

2Cressy
1 I've lost count of the times I've tried to help you
2 by pointing out what the issues are and that you must
3 focus your very commendable intellect on that. When you
4 do, you do yourself good in this case. The difficulty is
5 you constantly want to digress off them.
6 To what issue pleaded in the claim or counterclaim
7 are these matters relevant?
8MR JOHNSON: It is relevant to the maliciousness was the word I
9 used, malfeasance would have been a better word.
10 My whole case Your Honour is very simple. It can be
11 very simply put. I think calling the document that I
12 filed back in February last year, drafted on a couple of
13 nights without sleep without even access to a book on
14 pleadings - I think it is a bit over-flattering to even
15 call it a counterclaim Your Honour.
16 The claim is simply that I have no case to answer
17 and this is misconduct by the broader legal team
18 promoting this claim by Ms Cressy and there is only one
19 authority I need to cite, Callanan's case, White
20 Industries Pty Limited v. Flower and Hart, a Firm No.2
21 (1999) Qld State Reports. That is all I need to quote
22 Your Honour to say that I am entitled to costs - - -
23HIS HONOUR: It is a Federal Court decision. I'm surprised
24 it's in the State reports - yes.
25MR JOHNSON: I don't think it needed to go to the High Court on
26 that occasion. It was just so cut and dry. It is very
27 simple. Now, I am constantly shut out of bringing
28 forward evidence of malfeasance in these proceedings so
29 the bigger part of the bigger of the three issues is shut
30 out of these proceedings.
31 I'm told by Your Honour, "I'm not interested in

2Cressy
1 hearing problems, I just want to hear issues, trials,
2 pleadings. If you've got a complaint against any of the
3 other Australian legal practitioners at the Bar table or
4 in the gallery, you take it up with the Legal Services
5 Commissioner".
6 The Legal Services Commissioner says, "I can't do
7 anything. There is this really old case 14 years before
8 I was born that strips me of my 12 pages of statutory
9 powers and it means that I can't apply my $50m of
10 government annual budget and my 20 staff on my whole
11 floor of Level 9, 330 Collins Street".
12 I agree with you Your Honour, the primary
13 (indistinct) responsibility lies with the Commission but
14 they are derelict. They are pointing to you.
15 So I am asking as one of my applications right from
16 the very start, is for some clear instruction from Your
17 Honour that that ridiculous little 18 year old case is
18 not and probably never was law in Victoria and certainly
19 can't overrule very clear 12 pages of legislation in the
20 Legal Practice Act of five years ago. I am looking for
21 that Your Honour.
22 I'm also asking the Legal Services Commissioner -
23 this is the second time I've had to ask this for a full
24 copy of that bizarre little letter I got saying that the
25 Legal Services Commission couldn't investigate my
26 complaint against Mr Hanlon. The judge had to and also I
27 had to with no powers of investigation, no multi-million
28 dollar budget and I had to practically do the
29 investigation Your Honour. That's what the letter says.
30 It is frightening. It is frightening.
31 It leaves us in a position where Australian legal

2Cressy
1 practitioners in Victoria are simply not regulated
2 because the court doesn't have the resources or the time
3 or the powers. I readily concede that Your Honour and we
4 have a regulator that is derelict. As I said in that
5 letter.
6 I'm a man - you've indicated kindly enough - my
7 intellect and my abilities including my natural abilities
8 as an advocate bearing in mind that I've barely been an
9 advocate for - well just since this trial commenced - I
10 had many other hats. I'm a (indistinct) economist of
11 over two decades. An academic economist as well and I
12 can tell you that in all of my reading, writing and
13 teaching at university level, I've never come across an
14 example of a regulator who runs away from regulatory
15 powers. The general practice is if you're unsure of your
16 power, you test it.
17HIS HONOUR: Mr Johnson, I've let you go along enough to try to
18 see if somewhere in this forest of digression there's
19 some point you wish to make in favour of the subpoena.
20 And I cannot elicit any. I've given you every
21 opportunity to make a submission in support of this
22 subpoena. You wish at the moment simply to use this as a
23 forum to criticise someone who you have brought to court,
24 to rail against her, and you're using this, and indeed
25 abusing your position as counsel, to try to do that
26 publicly, and you're wasting this court's valuable time.
27 Now, you must apply your mind to the issues I have
28 pointed out to you. When you do so, you do well. But if
29 you don't seem to want to do that, I can't assist you any
30 further. Is there anything you wish to say further in
31 support of the subpoena, and in particular, in answer to

2Cressy
1 the points made by Mr Oven?
2MR JOHNSON: Yes, Your Honour. Mr Oven has readily and kindly
3 permitted that the evidence that I wish the Legal Service
4 Commissioner to give this day in this day is relevant to
5 the proceedings. Where we differ on is on the definition
6 of the proceedings. Mr Oven takes the view that you do,
7 that this can somewhere be dealt with, these proceedings,
8 separately from the bigger picture. I know not how.
9 These proceedings have ticked off on a flawed basis.
10 Pleadings were never finalised, Your Honour, I think
11 that's patent, that's why we're even discussing this.
12 There was no proper discovery process. You were misled,
13 the court was misled, by the plaintiff's legal team as to
14 the expected duration. Now, we're going to spend two
15 days just discussing subpoena applications, Your Honour,
16 not two days for a full trial. And I can go through the
17 first 50 pages of transcript of the first morning of the
18 trial, and I can point out another dozen misleading
19 things that Mr Devries said to you.
20HIS HONOUR: Your points about the pleadings were a little bit
21 at odds with what you said to me on 3 December when the
22 plaintiff applied to amend their plea. You said to me,
23 in opposition to that application, p.156, Line 11, "I had
24 understood that the time for amending pleadings closed
25 some weeks before the trial days". You were in fact
26 there submitting that the plaintiff should be bound to
27 her pleadings, and that I should not give her leave to
28 amend.
29MR JOHNSON: I'm not suggesting that at all, Your Honour.
30HIS HONOUR: The point you're making now is entirely
31 inconsistent with that, with you having any such

2Cressy
1 understanding.
2MR JOHNSON: I'm suggesting, Your Honour, that 2 December could
3 not conceivably be considered a proper trial date, when
4 discovery hadn't been completed. I brought in three bags
5 of recovered stolen documents that weren't
6 disclosed - - -
7HIS HONOUR: You're now digressing from the issue I
8 raised - - -
9MR JOHNSON: No, I'm just - - -
10HIS HONOUR: And that is - I'm talking - that is the point
11 relating to pleadings. I have reminded you, as far as
12 I'm concerned, the court, this case, is run on pleadings.
13MR JOHNSON: Which need to be finalised once discovery and
14 interrogatory, et cetera, et cetera. None of that
15 happened, Your Honour. I though 2 December would be
16 basically a directions hearing. I though that would be
17 the best, and it would probably take two days, given the
18 past history of this matter, and I was very surprised
19 that Your Honour was ready to go to trial, and I
20 certainly wasn't prepared, and I certainly couldn't
21 conceive of two sets of Supreme Court proceedings on the
22 same material and the same parties, proceeding - - -
23HIS HONOUR: You've made that point efficiently. Is there
24 anything else you wish to put?
25MR JOHNSON: I would request a copy of that letter I mentioned,
26 Mr Oven, the one that fits into Item IA, of the list of
27 documents. That was the original rejection letter from
28 the Commissioner, or her delegate, telling me that I had
29 to conduct an investigation, and the royal commission,
30 and the brief, and hand that to the judge. And the judge
31 had to do the examination, investigation of Mr Hanlon,

2Cressy
1 because it wasn't the Commissioner's responsibility. So
2 if I get a full copy of that, not just every second page,
3 I'd be grateful. Your Honour, I believe I've said
4 enough, enough time.
5HIS HONOUR: Yes, you have, thank you, Mr Johnson.
6MR OVEN: Your Honour, just one brief matter. In terms of the
7 relevance of what evidence may be read from the
8 Commissioner in respect of the other proceeding, the
9 point I was trying to make - - -
10HIS HONOUR: Yes.
11MR OVEN: - - - is that the other proceeding involved issues
12 about the Commissioner's powers and extent, and it may
13 arise in that proceeding whether or not the Commissioner
14 can give relevant evidence about those, as opposed to the
15 statue itself setting up those powers. I just say that
16 to have it on the transcript in case that gets seized
17 upon at a later stage. And the – I think I'll rest with
18 that, thank you.
19HIS HONOUR: No, I follow that. I'll make a ruling.
20(RULING FOLLOWS)
21

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1.LL:ALM 09/02/09 FTR:7-8 212 RULING

2Cressy
1MR OVEN: The Commissioner seeks costs of this application.
2HIS HONOUR: Yes, thank you, Mr Oven. Mr Johnson, costs
3 normally follow the event.
4MR JOHNSON: I will be appealing the order, anyway, Your
5 Honour.
6HIS HONOUR: Yes, you do not say anything in opposition to an
7 application for costs?
8MR JOHNSON: I'm in total opposition, Your Honour, but what
9 can I say?
10HIS HONOUR: Thank you. I will order firstly that the subpoena
11 directed by the defendant to the Legal Services
12 Commissioner, dated 20 January 2009, be struck out as
13 vexatious, oppressive, and an abuse of the process of the
14 court. Secondly, the defendant, Mr Harold James Johnson,
15 pay the costs, both relating to the subpoena and the
16 application to set aside the subpoena of the Legal
17 Services Commissioner.
18MR OVEN: If the court pleases.
19HIS HONOUR: Thank you, Mr Oven. I thank you for your
20 assistance in the matter, and you and the Commissioner
21 are excused. Thank you very much for your attendance.
22 Now, I think we had Ms Rees next in line?
23MR JOHNSON: If it please Your Honour, may I just ask one
24 question? It's the same question I asked earlier this
25 morning. Given that there are now four rulings on
26 subpoena applications that Your Honour has made and I
27 will be appealing, is there much value in going through
28 this process today, Your Honour?
29HIS HONOUR: Of course there is.
30MR JOHNSON: Very well.
31HIS HONOUR: Because we will be proceeding with this trial, and
1.LL:ALM 09/02/09 FTR:7-8 213 DISCUSSION

2Cressy
1 if any of these witnesses are relevant, and I do not
2 strike out the subpoena, I expect you to be ready to call
3 them. You've brought them to court, you've
4 inconvenienced them, they'll go the witness box.
5MR JOHNSON: Thank you, Your Honour.
6HIS HONOUR: Now, Ms Rees, you're now in court. Thank you for
7 waiting outside. I'll just find – yes, here's the
8 subpoena.
9MS REES: Your Honour, I have a copy of the mediation agreement
10 here.
11HIS HONOUR: It's just to attend to give evidence, it's not to
12 bring documents, is that right?
13MS REES: It is yes, Your Honour.
14HIS HONOUR: Does it foreshadow in the body of it what you've
15 been called to give evidence about? No. But you say your
16 only connection with the parties or the issues is that
17 you were the mediator in this proceeding I think you told
18 me on 26 June?
19MS REES: On 26 June, yes Your Honour.
20HIS HONOUR: Was that pursuant to court order?
21MS REES: It was Your Honour, and I didn't receive a copy of
22 Master Kings' orders until I think it was about 18 June
23 and I found out my name was actually in the order on that
24 date to be named as the - - -
25HIS HONOUR: Yes, as a mediator.
26MS REES: Yes.
27HIS HONOUR: Yes thank you. Your application is to
28 set it aside?
30HIS HONOUR: And you're going to produce to me the mediation
31 agreement?

2Cressy
1MS REES: Your Honour, I have the original mediation agreement
2 here and could I draw Your Honour's attention to
3 Paragraph 13 of that agreement which says that it's
4 confidential and without prejudice, the parties
5 themselves have a copy of this of course.
6HIS HONOUR: I will need to make a copy of that or the original
7 an exhibit in this application, do you have a copy there
8 for yourself?
9MS REES: I have a copy Your Honour.
10HIS HONOUR: I mean if you would prefer to tender to me a copy
11 rather than the original I'm content with that and you
12 may need to keep the original for yourself, I think
13 that's a more appropriate way to do it.
14MS REES: Thanks.
15HIS HONOUR: Thanks Ms Rees. The confidentiality is Clause 13?
17HIS HONOUR: Which says, "The mediation is conducted on a
18 confidential without prejudice basis and neither the
19 parties nor the mediator nor any other person in
20 attendance by agreement may disclose to anyone not
21 involved in the mediation any information or document
22 given to them during the mediation unless required by law
23 to make such a disclosure."
25HIS HONOUR: Yes.

26
27#EXHIBIT A - Copy mediation agreement between the
28 plaintiff Pippin Patricia Cressy, the
29 defendant Harold James Johnson and
30 Ms Kathryn R Rees, counsel mediator,
31 dated 26/06/08.
32MS REES: Yes Your Honour. On the basis of the confidentiality
33 Your Honour, I ask that I not be ordered to give evidence
34 of anything that happened.

2Cressy
1HIS HONOUR: Yes, is there anything in the rules relating to
2 this?
3MR DEVRIES: Section 23A of the Supreme Court Act Your Honour.
4HIS HONOUR: Thanks Mr Devries, what does that say?
5MS REES: Or s.24A Your Honour, "Where the court refers a
6 proceeding or any part of a proceeding to mediation
7 unless all the parties who attend the mediation otherwise
8 agree in writing, no evidence shall be admitted at the
9 hearing of the proceeding of anything said or done by any
10 person at the mediation."
11HIS HONOUR: Yes, as you say this is - you were appointed
12 pursuant to the order of Master Kings dated?
13MS REES: Dated 28 April 2008 Your Honour.
14HIS HONOUR: Thank you very much. So it goes beyond the
15 privilege - the objection, in fact there's a statutory
16 prescription on you giving evidence relating to the
17 mediation.
18MS REES: Yes Your Honour. But it was certainly known to
19 Mr Johnson as well because he signed the mediation
20 agreement.
21HIS HONOUR: Yes I noted that. Anything else you wish - - -
22MS REES: No.
23HIS HONOUR: Perhaps we will hear from Mr Johnson, thank you
24 Ms Rees for drawing those matters to my attention, thank
25 you Mr Devries, Mr Johnson.
26MR JOHNSON: Thank you Your Honour, of course I take no
27 objection to the terms of the mediation agreement or
28 obviously the terms of the Supreme Court Act and rules.
29 Once again we have a divergence of concepts with Mr Over,
30 it was the proceedings whether they included all and the
31 two which we have together or whether it was just this

2Cressy
1 little bit that somehow preceded the real legal
2 proceedings. I also have a different opinion on the
3 mediation. Now Your Honour, if lawyers are in a
4 mediation and confidentiality is protected by the
5 legislation and the rules and the specific inter-party
6 agreements, terrorists burst into the room. Now my view
7 is that whatever happens during that terrorist episode,
8 that can't possibly be - you can't just say to a court,
9 well we can't produce that evidence, we can't - it's
10 covered by - it's nothing do with the mediation Your
11 Honour, it's outside the mediation. Now Ms Rees when she
12 said earlier when you were doing the roll call - - -
13HIS HONOUR: What evidence do you seek to elicit from Ms Rees,
14 without telling me the actual content, what's the
15 substance, what issue is it to go to?
16MR JOHNSON: The evidence, Ms Rees said that mostly what
17 happened at the mediation was confidential, I want her to
18 give evidence about the bits that weren't confidential.
19HIS HONOUR: What's that related to.
20MR JOHNSON: I've described that in the letter of service that
21 I handed to Ms Rees.
22HIS HONOUR: But what - - -
23MR JOHNSON: I've described it in my affidavit of 2 - - -
24HIS HONOUR: What actual evidence do you seek to adduce?
25MR JOHNSON: I wish Mr Rees to give evidence of an
26 extraordinary episode where a man burst into the
27 mediation room and took over, interrupted, disturbed,
28 stopped the mediation for a few minutes. I am required
29 to produce this evidence to you because the Legal
30 Services Commission tells me that if I don't raise every
31 issue with you Your Honour, Mr Over said I can after

2Cressy
1 court finishes then go and resubmit my complaint, but I
2 can only do that if I put every issue to you Your Honour.
3 So this is a misconduct issue that I need to put to you
4 in accordance with the Legal Services Commissioner or
5 when I go back and resubmit my complaint after this
6 hearing she will knock it back again on the grounds that
7 I didn't put every point Your Honour. Now Ms Rees has
8 candidly and decently admitted that not everything that
9 occurred that day was confidential, it was mostly
10 confidential, they were her words Your Honour. I wish to
11 have evidence brought forward as I've described in the
12 relevant paragraphs of my affidavit of 2 February of
13 certain events that happened that day in Mr Rees's
14 presence which were not conceivably any part of any
15 lawful litigation and they're not protected by
16 confidentiality.
17HIS HONOUR: But how does that relate to the issues in the
18 claim and the counterclaim?
19MR JOHNSON: In the layman's terms Part 9, constructive trust
20 as the complainant, oppressive, vexatious, abuse of court
21 process as the defendant, fraud, crime, malfeasance,
22 misconduct, Callinan's case, orders for costs and damages
23 against the legal practitioners who promote the
24 fraudulent, scandalous claim, that's where it all comes
25 in Your Honour. It's this boundary issue we again have
26 about what is relevant. The only relevance of the Part 9
27 constructive trust argument is the fact that if fails
28 miserably for lack of evidence, fails miserably for lack
29 of credibility of the unsubstantiated claims of the
30 plaintiff, therefore the only answer for why we're in
31 court today is the fraud and the misconduct and the

2Cressy
1 malfeasance, 80/20 rule Your Honour, we've got the
2 balance around the wrong way you and I, that's what we
3 need to agree on, that's the substance of my appeal the
4 way that you handled the subpoena on Thursday Your
5 Honour, the parameter of what is relevant is you, I'm
6 sorry.
7HIS HONOUR: Yes, thank you Mr Johnson.
8(RULING FOLLOWS)

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2Cressy
1MS REES: As Your Honour pleases.
2HIS HONOUR: Yes, do you seek any other orders Ms Rees?
3MS REES: No Your Honour, I was given $10 conduct money which I
4 don't need to walk across the road, and I'm quite happy
5 to hand that back if Your Honour pleases.
6HIS HONOUR: Thank you Ms Rees, we may make restitution of
7 Mr Johnson, indeed you did not have to do that but it is
8 good of you to have done that. I shall therefore
9 formally order that the subpoena dated 20 January 2009
10 directed by the defendant, Harold James Johnson to
11 Ms Kathryn Rees be struck out on the basis it is
12 vexatious, oppressive and an abuse of the process of this
13 court.
14MS REES: As Your Honour pleases.
15HIS HONOUR: I thank you for your assistance and your
16 attendance, Ms Rees, you are excused.
17MS REES: Thank you Your Honour.
18HIS HONOUR: Thank you. I think the third person is Mr Berry.
19 Mr Berry, you too are the recipient of a subpoena, you
20 foreshadowed seeking to – an application to set that
21 subpoena aside?
22MR BERRY: That's correct, Your Honour.
23HIS HONOUR: So it's to give evidence and produce documents set
24 out in a schedule?
25MR BERRY: Yes, Your Honour, in one sense, this issue has
26 already been argued before you by Mr Johnson in that the
27 subpoena, to me, is in identical terms to that addressed
28 to Mr Twigg of Harwood Andrews, who formally represented
29 Ms Cressy. Indeed, Your Honour, insofar as it relates to
30 the evidence which he seeks that I give, it is
31 (indistinct) his affidavit, and it is at p.25 of
1.LL:SK 09/02/09 FTR:11-13 222 DISCUSSION

2Cressy
1 Mr Johnson's affidavit sworn 2 February 2000 and - - -
2HIS HONOUR: Well, I have declined to read that affidavit on
3 the basis that Mr Johnson is a witness in this
4 proceeding, it would be wrong for me to read an out of
5 court affidavit, which is not evidence in this case, the
6 relevance of the subpoena must appear from evidence given
7 to me in admissible form in this case.
8MR BERRY: Thank you, Your Honour.
9HIS HONOUR: Insofar as the affidavit, and he did read one
10 paragraph from it, it contains argumentative material,
11 he's entitled to make argument from the Bar table.
12MR BERRY: All right, Your Honour, in that case, certain the
13 remainder of the subpoena is in identical terms to that
14 addressed to Mr Twigg, with the exception of where it
15 refers to Mr Twigg and Harwood Andrews, it refers it to
16 me and my firm, which is Berry Family Law, and Your
17 Honour, after hearing submissions from Mr Johnson, Your
18 Honour set the subpoena aside.
19HIS HONOUR: Yes.
20MR BERRY: And Your Honour, if you wish, I can – I believe I do
21 have the words used by Your Honour at this stage.
22HIS HONOUR: Yes.
23MR BERRY: Your Honour found that it would be oppressive for
24 Mr Twigg to be required to answer the subpoena, and on
25 that basis, I shall set aside the subpoena, the basis
26 that it is oppressive, vexatious, and irrelevant, and
27 Your Honour, certainly my submission would be that
28 Mr Johnson's subpoena to me is equally as oppressive,
29 vexatious, and irrelevant.
30HIS HONOUR: The – well, firstly, if you look at Category 4 of
31 the – the list of things for production seems to start

2Cressy
1 with a Category 4, 5, and 6, is that right?
2MR BERRY: Look, yes, Your Honour, it does - - -
3HIS HONOUR: You look at Category 4, he would already have
4 those documents.
5MR BERRY: Your Honour, I would think that on a literal
6 translation, he appears to seek that I produce the
7 original affidavits filed both in the Federal
8 Magistrates' Court - - -
9HIS HONOUR: Well, he can't do that.
10MR BERRY: I clearly can't do that, and otherwise, Your Honour,
11 I would submit that Mr Johnson must have copies.
12HIS HONOUR: Must have copies of four and five.
13MR BERRY: Yes.
14HIS HONOUR: Six relates to caveatable interests claimed by
15 your firm, well, that's got nothing to do with this
16 proceeding.
17MR BERRY: It has nothing, Your Honour, let alone issues of
18 privilege in respect to what may have occurred between my
19 client and/or my firm's client and (indistinct) Cressy.
20 Most certainly it has no relevance to these proceedings,
21 Your Honour.
22HIS HONOUR: M'mm.
23MR BERRY: And indeed, 6B(i), I would submit, is clearly
24 privileged information, it requires that I produce bank
25 statements, documents, income tax returns, payment
26 statements, et cetera, relating to - or evidence in a
27 recording of legal or beneficial or other interest. Your
28 Honour, insofar as any of those documents came into being
29 in the course of obtaining instructions, they're clearly
30 privileged.
31HIS HONOUR: Yes.

2Cressy
1MR BERRY: And Your Honour, I'd submit that they're not
2 relevant at this time. B2 seeks documents evidencing or
3 otherwise recording any and all claims by my firm and
4 myself in respect to securing payment of costs. Again,
5 Your Honour, I'd submit that that is privileged and
6 irrelevant to the matters before the court. Likewise,
7 Paragraph 6C, which essentially seeks that I produce the
8 billings records of my firm, and again, I would submit
9 that that's privileged and irrelevant to the proceedings
10 before the court.
11HIS HONOUR: Have you been given any indication, for what
12 purpose you've been asked to give evidence as distinct
13 from producing that array of documents?
14MR BERRY: Yes, Your Honour. Mr Johnson wrote a letter to me.
15HIS HONOUR: Yes.
16MR BERRY: Dated 26 January. Paragraph 2 of that letter says,
17 "You'll be required to give evidence in respect of your
18 dealings with Mr Graham Devries, counsel for the
19 plaintiff, appearing in this proceedings, and/or your
20 dealings with the plaintiff in respect of these
21 proceedings, and your fraudulent caveat taking
22 activities. Your Honour, again, I'd submit that I am
23 certainly not required to give evidence in respect of
24 those things, they are clearly matters which are
25 privileged. My dealings with counsel and - - -
26HIS HONOUR: Privileged and irrelevant.
27MR BERRY: Exactly, Your Honour. Your Honour, I must – I also
28 did write a letter to Mr Johnson which, in fact, his
29 letter dated 26 January was in reply to. In that letter,
30 I pointed out the deficiencies in this subpoena. He was
31 invited to withdraw that subpoena, and, Your Honour, the

2Cressy
1 fact that he requires my attendance here today,
2 particularly after a subpoena in identical terms to
3 Mr Twigg, has been dismissed, and has been found to be
4 vexatious, Your Honour, I would submit that Mr Johnson's
5 requirement that I attend here, being the principle of
6 the solicitors for the plaintiff in the course of trial
7 was intended not as any – for any genuine purpose, but
8 rather to try and place my client at a disadvantage, and
9 indeed, I would be submitting that his intent is to cause
10 grief to my firm for having had the temerity for acting
11 for the plaintiff, that would be my submission.
12HIS HONOUR: Yes, I hear that submission, Mr Berry. I think
13 it's probably better, since I'm (indistinct) I'll pass on
14 it, but I am troubled by the fact that this type of
15 subpoena has been directed to a solicitor who is acting
16 for a litigant to whom – that he – the defendant has –
17 he's a defendant against your client, it troubles me that
18 Mr Johnson, who has told me he has practiced as a
19 solicitor for 20 years, and that he has a profound
20 knowledge of the rules relating to conduct, should do
21 this, but I'll hear from him as to what relevance the
22 subpoena could have and why the matter sought are not the
23 subject of privilege.
24MR BERRY: Yes, Your Honour.
25HIS HONOUR: I should also note I'm very troubled by the fact
26 that yet more court time has been consumed this morning,
27 so far on two subpoenas, which I've had to strike out.
28 Now, Mr Johnson, what is the relevance of the evidence
29 you seek to adduce from Mr Berry, and why are not a
30 number of the matters contained in them anything
31 (indistinct) would they not be the subject of legal

2Cressy
1 professional privilege?
2MR JOHNSON: Your Honour, on the legal professional privilege,
3 it has no legs because it's already been waived, but I'll
4 come to that. I have about ten points I need to make in
5 response, and this is going to take about ten minutes.
6HIS HONOUR: M'mm.
7MR JOHNSON: I'm concerned, because there are a number of
8 points, I may forget to mention one or two at the end,
9 so - - -
10HIS HONOUR: Yes, keep your voice up a - - -
11MR JOHNSON: I'm sorry, Your Honour, I'm concerned, because
12 there are a number of points in (indistinct) I'm worried
13 I might forget to mention one or two, but - - -
14HIS HONOUR: Yes.
15MR JOHNSON: We'll make a go. The letter of service dated
16 Australia Day, and Mr Berry read out the statement, the
17 main change from his letter of service to the other
18 gentleman, Mr Twigg, was I included – I want him to give
19 evidence about his fraudulent caveat taking activities.
20 What I found out on – I think this is 5 December last
21 year, was that a caveat, no. AG013148V, was registered at
22 the Land Titles Office at about 6 August 2008 in favour
23 of Peter Berry personally. I think that's very
24 suspicious, as the words "trading as Berry Family Law"
25 were clearly crossed off the instrument twice.
26 So I've subpoenaed Mr Berry, not only as a solicitor
27 and principal and supervisor of Mr Turnbull in respect of
28 Ms Cressy's matter, but also in his personal capacity as
29 claiming a caveatable interest in my property, and I find
30 it really shocking, the suggestion that I'm not entitled
31 to any information about this claim against one of my

2Cressy
1 assets that Mr Berry's making. Now, I assume that there
2 is some sort of connection, unless he has lent the
3 plaintiff money to pay his firm's legal fees, which I
4 believe are collectively across Harwood Andrews and Berry
5 Family Law, up over 300,000 now, Your Honour. I believe
6 that Ms Cressy's only ever had to pay $3000.
7 Now, I say that based on timesheets and tax invoices
8 that Mr Twigg – actually, Mr Turnbull was kind enough to
9 give me, an affidavit of Mr Twigg and also an affidavit
10 of his own, including things like engagement letters and
11 that sort of thing, which show all our fees, at that
12 stage, were about 50,000, just in respect of Family Court
13 proceedings, barely a quarter of the matter. It goes to
14 the (indistinct) principle point, I won't keep repeating
15 it out, the claim by the plaintiff is vexatious,
16 oppressive, and whatever the other word is, Your Honour.
17 The maintenance of the claim is, as were the three
18 rounds of caveats, that's the last round. I'm entitled
19 to know what these people are claiming, I'm entitled to
20 see some – show me the evidence, Your Honour, I'm giving
21 them another opportunity to show me the evidence. How
22 can they claim interests in my property? If I had found
23 out about this before 2 December, subject to one proviso,
24 they would have been joined as defendants by counterclaim
25 in these proceedings, in exactly the same situation as
26 the Harwood Andrews boys.
27 Now, I say with one proviso, because I did not
28 conceive on 2 December that pleadings were finalised, I
29 thought that would be just a simple – well, not simple, I
30 thought that would simply be a directions hearing,
31 because we still hadn't completed discovery,

2Cressy
1 interrogatories. I needed interrogatories, we discussed
2 that on 12 December before you, Your Honour, we stopped
3 it all night. She apparently couldn't understand my
4 case, I apparently put - - -
5HIS HONOUR: Can I ask you this, you said to me - - -
6MR JOHNSON: - - - without answers to those interrogatories.
7HIS HONOUR: - - - just a moment ago that you did not believe
8 on 2 December that pleadings had closed, is that right?
9MR JOHNSON: Absolutely, Your Honour.
10HIS HONOUR: Is that a true - - -
11MR JOHNSON: I know, even today, my counterclaim has not been
12 finalised - - -
13HIS HONOUR: Yes, Mr Johnson, again, I repeat, I remind you
14 what you said to me on 3 December - - -
15MR JOHNSON: I am aware - - -
16HIS HONOUR: Just a moment. This is your own words, "I had
17 understood that the time for amending pleadings closed
18 some weeks before the trial date", you opposed an
19 application to amend. Is that not inconsistent - - -
20MR JOHNSON: That is not - - -
21HIS HONOUR: - - - what you've just stated from the Bar table,
22 as a solicitor to me?
23MR JOHNSON: With respect, Your Honour, that is embarrassingly
24 not correct. When Mr Devries made the application to
25 amend the statement of claim, I think went and looked at
26 the Supreme Court orders regarding pleadings. Forgive
27 me, I can't remember what number it is. The first time
28 I've looked at them since 1987, when I studied civil
29 procedure at university, Your Honour. I went back, and
30 it had in there that pleadings had to close a certain
31 period from the trial commenced, that's my first point.

2Cressy
1 I don't believe there's anything inconsistent in pointing
2 out a general pleading rule with the fact that my
3 pleadings are still not settled as of today, Your Honour,
4 I think it's quite clear.
5 Secondly, I did not oppose the amendment because we
6 were going helter-skelter to get all the evidence in,
7 because there was a promise held out of judgment and
8 justice before Christmas. I was hell bent, I clipped my
9 witnesses, I clipped cross-examination, I didn't do
10 things that, at the time, I didn't know I should have
11 done, in terms of cross-examination of the plaintiff,
12 because we were dead set keen to finish by - - -
13HIS HONOUR: Mr Johnson, your own behaviour before Christmas
14 completely contradicts that proposition.
15MR JOHNSON: Well, I'm glad it's - - -
16HIS HONOUR: You were set on delaying and protracting this case
17 time and again, and time and again, I warned you to stop
18 doing it. Now, how is the subpoena addressed by you to
19 Mr Berry, how do those matters relate to matters in issue
20 in this case, why are not a large number of the documents
21 and information sought to be adduced by you from Mr Berry
22 the subject of legal professional privilege?
23MR JOHNSON: Thank you for the question, I've already said that
24 it's not (indistinct) because they've been waived,
25 there's also – it's evidence relating to crimes that have
26 been committed, Your Honour, I don't believe privilege
27 applies to crimes, maybe it does, forgive me. But the
28 simple point is, Your Honour, the plaintiff is claiming
29 Part 9 constructive trust. I'm saying oppressive,
30 vexatious, scandalous abuse of court proceedings
31 (indistinct) extortion, crime. I'm saying misconduct by

2Cressy
1 the people promoting your claims, where's the evidence?
2 They've not taken any evidence, they've not done any
3 of the things that a decent, honest, thorough
4 professional man will do to protect their own liability.
5 They haven't asked for tax returns from (indistinct) they
6 haven't asked for contracts with her names on them, they
7 haven't asked for her bank statements (indistinct) they
8 haven't asked for receipts, there's no evidence. She has
9 a lack of evidence, Your Honour, and it's that lack of
10 evidence which proves not only the fraud, but the
11 misconduct, and here's another opportunity after they've
12 closed their case, I'm saying, "Boys, gather up, bring in
13 your evidence", they can't, they can't. Why not?
14 Because it is fraud and misconduct, and their inability
15 to answer the subpoena, just as their inability to
16 produce hard evidence, tax returns, contracts with her
17 names on them, bank statements, receipts for moneys
18 expended, it speaks for itself, res ipsa loquitur, Your
19 Honour.
20 Now, I would just like to conclude Mr Berry referred
21 to his letter to me of 23 January, my affidavit of
22 2 February, Exhibit No. 43, is my response to that
23 letter, where I've noted my responses. Your Honour has
24 at least one copy available to him, may I read this to
25 Your Honour?
26HIS HONOUR: You may read it, I have told you why I will not
27 read affidavits sworn by a person who isn't a witness in
28 this case. If there's – you can read to me whatever
29 part, and if it's argument, I will listen to it.
30MR JOHNSON: I'll response to that point presently, Your
31 Honour. This letter, there's a number of points.

2Cressy
1 Mr Berry claims I have to pay his fees for his turning
2 up, OK, that's a cute one, and there's a list of points
3 under - - -
4HIS HONOUR: So what are you – you've got a letter there, have
5 you?
6MR JOHNSON: Yes, Your Honour.
7HIS HONOUR: I thought you said an affidavit.
8MR JOHNSON: It's an exhibit to my affidavit, Your Honour.
9HIS HONOUR: If you wish to tender that as a letter in this
10 application, I'll receive it.
11MR JOHNSON: Thank you, Your Honour. I would, but this is my
12 only copy.
13HIS HONOUR: All right, well, you read to me the relevant
14 parts.
15MR JOHNSON: I would like it tendered, but this is so I can get
16 a copy back, Your Honour?
17HIS HONOUR: Well, do you want to read to me the relevant
18 parts, then I'll receive it as an exhibit?
19MR JOHNSON: Thank you, Your Honour, thank you.
20MR DEVRIES: Your Honour, I have a copy I'm quite happy to make
21 available to Your Honour or - - -
22HIS HONOUR: Thank you, Mr Devries, that would be of great
23 assistance to expedite this matter, possibly.
24MR JOHNSON: I shall read the note, Your Honour. "Further,
25 Item 1", this is Mr Berry writing, "As you" - - -
26HIS HONOUR: So this is a letter - - -
27MR JOHNSON: - - - Mr Turnbull writing.
28HIS HONOUR: Just a moment, this is a letter by you to - - -
29MR JOHNSON: It's a letter by Mr Turnbull of Berry Family Law,
30 Your Honour, 23 January.
31HIS HONOUR: I see, and then you've written notes all over, is

2Cressy
1 that right?
2MR JOHNSON: Yes, that's right, and provided my notes to
3 Mr Turnbull or Mr Berry by way of an exhibit to my
4 affidavit of 2 February.
5
6#EXHIBIT A - Letter by Berry Law Firm to Sutton
7 Lawyers dated 23/01/09, together with
8 handwritten notations by Mr Johnson.
9Thank you, Your Honour. Now, to Point 1, Mr Turnbull – no,
10 it's Mr Berry, it looks like a – yes, it's under
11 Mr Berry's name. Mr Berry writes, "(1) as you're aware,
12 Mr Turnbull has had the primary carriage of this matter,
13 and there's no information which Mr Berry may give which
14 Mr Turnbull's not otherwise cognisant of". It's a little
15 confusing Mr Berry's referring to himself as third
16 person, but I can process that. My response to that is
17 Point 1, as I read out earlier, Your Honour, Caveat
18 No. AG013148B was registered at the LTO, Land Titles
19 Office, about 06/08/08, 6 August 2008, in favour of Peter
20 Berry, personally, very suspiciously, as the words
21 "trading as Berry Family Law" were crossed off the
22 instrument, twice.
23 JT, that's James Turnbull, who I mistakenly thought
24 wrote this letter, as he wrote all the others, should
25 clarify does he act for the plaintiff and represent Berry
26 Family Law and Peter Berry personally for the purpose of
27 these proceedings? I've subpoenaed Mr Berry in his
28 personal capacity as a caveator on a couple of my titles,
29 Your Honour, as well as in his capacity as a litigation
30 funder, substantial litigation funder for these wild,
31 unsubstantiated claims Ms Cressy's made against me.
32 Now, Point 2, "You, requiring that Mr Berry produce
33 original affidavits filed in both the Supreme Court and

2Cressy
1 the Federal Magistrates' Court, patently cannot do so",
2 et cetera, et cetera. Look, I agree, these subpoenas
3 were put together with limited resources and very little
4 time. Quite an exercise. The words "copies of" should
5 have been at the beginning of each of those items, as
6 they were in most of the affidavits. I don't think
7 there's a major issue in reading them as if - - -
8HIS HONOUR: Why do you need to – I've been through this with
9 you when we debated Mr – the subpoena to Mr Twig, they're
10 all proceedings in which you were a party, why are you
11 subpoenaing someone else to bring the affidavits to court
12 of which you have copies anyway?
13MR JOHNSON: Thank you, thank you, Your Honour, that's a
14 helpful question. I am not confident the way these have
15 gone out, and given the number of hearings which I wasn't
16 even giving notice of, I haven't received copies of all
17 the documents from the plaintiff. I would be most
18 surprised if I've got all of them. I've probably got
19 most of them, but look, I honestly don't know, Your
20 Honour. This matter was set down for a two day trial,
21 estimated trial, not withstanding there's a letter in the
22 court book, the last item in the court book prepared by
23 the defendants by counterclaim, which shows that I was
24 saying in April last year we're looking at four to six,
25 guys, and that was before a lot of the - - -
26HIS HONOUR: The length of the trial's got nothing to do with
27 this subpoena. Would you proceed with your argument?
28MR JOHNSON: It illustrates the fact that there are court
29 documents - - -
30HIS HONOUR: The length of the trial has largely been caused by
31 your filibustering, frankly, and I've referred to that

2Cressy
1 before Christmas. Now, can you continue your argument so
2 we can then proceed with the trial of this case?
3MR JOHNSON: Point 2 – sorry, Point 3, "Mr Berry is aware that
4 Justice Kay", spelt K-a-y, "Has denied your many attempts
5 to put before the court the affidavit material previously
6 filed in these proceedings. Justice Kay", spelt
7 consistently, "Has clearly determined his interest only
8 in evidence viva voce", and my response, same as – sorry,
9 for Point 3 was, "Your many attempts are – the writer",
10 mistakenly I said James Turnbull of Berry Family Law, "Is
11 being emotional drama queen, it's simply not true that
12 I've made many attempts or been denied by Your Honour to
13 put affidavit material in the court".
14 I'm surprised - there's a whole body of written
15 affidavits in exhibits, a whole body of evidence that
16 isn't before the court. I was surprised when I learned
17 that about an hour after I stepped into the witness box
18 for evidence-in-chief on the fourth day of the trial.
19 That's certainly – I now realise that there is somewhat
20 of a gap in my cross-examination of the plaintiff,
21 because I thought all that material was in. Why waste
22 time, we're under pressure to try to finish it next
23 week - - -
24HIS HONOUR: Well, we are under pressure because - - -
25MR JOHNSON: - - - why waste time asking her questions - - -
26HIS HONOUR: - - - this court has a lot of deserving litigants
27 waiting, and you're still wasting time. Now, address the
28 subpoena. You don't have to address this letter
29 seriatim, you still have not answered the very simply
30 question as to how the matters to the subject of this
31 subpoena are relevant to this case, and why they are not

2Cressy
1 the subject of legal professional privilege.
2 And I direct you back to that to assist you because
3 if there's anything relevant and admissible that maybe
4 adduced from Mr Berry, then he ought to give evidence
5 subject to the subpoena. So far you have failed to
6 persuade me that that is the case - - -
7MR JOHNSON: I believe I - sorry Your Honour.
8HIS HONOUR: Therefore you do run the risk of having the
9 subpoena struck out unless you can point out me how
10 Mr Berry can give evidence or produce documents relevant
11 and admissible in this case.
12MR JOHNSON: Your Honour, this case is about fraud, it is about
13 crime, it is about misconduct by lawyers, it is about
14 lawyers promoting unsubstantial - wild, unsubstantiated
15 and unsubstantiated claims, not doing basic leg work that
16 any half decent legal practitioner or other professional
17 would do. It is not a case about part loans, it is not a
18 case about constructive trust, the fact that it fails
19 miserably in terms of those languages of the law
20 demonstrates the fraud, the crime, the misconduct. Now
21 this affidavit, this material I want to be presented
22 shows that and I've said that a number of times. I said
23 that in respect of every subpoena application which you
24 have struck the subpoena out. I will be saying it on
25 every appeal of every striking out Your Honour.
26 Now I would like to continue. My Point 4 was about
27 Your Honour, Mr Berry asserting is clearly to determine
28 his interests and only in evidence viva voce. My
29 response there, as for 3, drama queen I say. I'm sure
30 His Honour will be interested in the thousands of pages,
31 the three bags full I've got with me today Your Honour,

2Cressy
1 it nearly broke my back. Dozens of pages of written
2 (sic) emphasising it's hard evidence, it's not he
3 said/she said stuff, hard evidence, all of which destroys
4 the plaintiff's case and exposes the plaintiff and Berry
5 family law and her original lawyers and past and present
6 legal counsel as frauds. And I might have said and
7 promoters of fraud. That's what this case is about Your
8 Honour.
9 There's nothing in any of the cases under Part 9 of
10 the Family Law Act or that gentleman who's the sex, lies
11 and video tape fellow whose case the decision was -
12 nothing has any relevance to this. Mr Devries's cute
13 little explanation Thursday afternoon about what de facto
14 Mum and Dad would do if they had to split up a Tattslotto
15 winnings, you know, it almost woke me up. Nothing to do
16 with this case Your Honour, it's all irrelevant.
17 Unfortunately you're letting in stuff that's irrelevant
18 and you're shutting out the very stuff that is relevant.
19 The very stuff that's complained about to a degree I
20 have it, I have uncertainty and lack of confidence that I
21 have all of it, it comes back simply to a case that's
22 being promoted by litigation funding, legal
23 practitioners, a woman whose claim fails for lack of
24 evidence, lack of credibility I might add. She's
25 penniless, she can't pay my compensation, she can't pay
26 my costs or damages. They very well know this all the
27 way along, they drafted affidavits dated 6 June last year
28 stating that very point, they've pushed it anyway.
29 That's a much bigger abuse of process than Flower & Hart
30 and Dr Ian Callinan, although he wasn't tied, he gave
31 evidence in that court, much bigger abuse of process than

2Cressy
1 those gentlemen did in White Industries Pty Ltd v. Flower
2 and Hart (No.2), Callinan's principles, on facing a
3 vexatious, abuse of scandalous court proceeding with no
4 prospect of recovery when the plaintiff loses her case,
5 except from the lawyers, the promoters who push this case
6 that couldn't succeed.
7 Even after they've shut their case they nave not
8 produced the evidence to Your Honour that would be
9 necessary to justify a caveat, let alone three rounds of
10 them. The evidence to justify interlocutory relief that
11 they were given let alone two rounds. The evidence to
12 justify bringing a trial and the trial - - -
13HIS HONOUR: Mr Johnson, I have given you more than adequate
14 time to try to justify this subpoena, is anything
15 relevant to the subpoena other than making wild speeches
16 that you desire to put forward to assist.
17MR JOHNSON: Your Honour, I will say I'm grateful to you for
18 the time you've given me to make my case felt this
19 morning, I'm not surprised by it the way that it has
20 proceeded, I'm not surprised by the upcoming outcome, I'm
21 not surprised by the necessity to have to appeal each of
22 these applications. But I do thank you for your time to
23 let me speak this morning.
24HIS HONOUR: Thank you Mr Johnson. I needn't trouble you
25 Mr Berry.
26(RULING FOLLOWS)
27

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1.LL:MH 09/02/09 FTR:14-15 239 RULING

2Cressy
1
1.LL:MH 09/02/09 FTR:14-15 240 RULING

2Cressy
1HIS HONOUR: Mr Berry, do you have any other application?
2MR BERRY: Yes Your Honour, I'd seek an order for my costs.
3HIS HONOUR: Yes, Mr Johnson, it would be difficult for you to
4 resist that given that costs normally follow the event.
5MR JOHNSON: Your Honour, I totally oppose it as I have on all
6 previous occasions. I note the humanity and kindness of
7 Ms Rees, that's all I need to say until the Court of
8 Appeal I guess Your Honour.
9HIS HONOUR: Thank you Mr Johnson. I shall order that the
10 defendant, Harold James Johnson pay the costs of Mr Berry
11 in relation to the subpoena and in relation to his
12 application to set that subpoena aside. Than you for
13 your attendance Mr Berry, you are excused.
14MR BERRY: Thank you Your Honour.
15HIS HONOUR: Thank you for your assistance. The last one is
16 Dr Ingleby is it? Mr Ingleby.
17MR INGLEBY: Your Honour, thank you for the indulgence. I have
18 had two documents placed on the desk at my chambers in
19 the last couple of weeks, both describing themselves as a
20 subpoena. The most recent one states in Paragraph 2,
21 "You will be required to give evidence in respect of your
22 dealings with Harwood Andrews as" - and then it says -
23 "either original or previous" - because it's in
24 manuscript I can't read it but nothing hangs on that, but
25 - "in respect of your dealings with" - and then there's
26 three people named, Harwood Andrews, in my capacity as
27 original counsel for the plaintiff, my dealings with
28 Mr Devries who appears before you in these proceedings,
29 and my dealings with the plaintiff. In other words - - -
30HIS HONOUR: I don't have a copy of that subpoena, I have a
31 copy of a more neutral subpoena simply asking you or
1.LL:MH 09/02/09 FTR:14-15 241 DISCUSSION

2Cressy
1 directing you - requiring you to come to court to give
2 evidence.
3MR INGLEBY: That was the first one and then I got sent a
4 second one which was this letter which I suspect - - -
5HIS HONOUR: It's a letter is it?
6MR INGLEBY: Yes, it's anticipating - - -
7HIS HONOUR: What's the date of the letter Mr Ingleby?
8MR INGLEBY: It's 26 January.
9HIS HONOUR: Thanks, do you have a copy of that, I would
10 receive that as an exhibit on this application if you do,
11 thank you very much.
12MR INGLEBY: I took this to be an attempt to remove possible
13 objections on the grounds of generality to the first
14 subpoena.
15HIS HONOUR: Yes thanks.

16
17#EXHIBIT A - Copy of letter of Sutton Lawyers to Mr
18 Richard Ingleby dated 26/01/09.
19Thanks. Now where does that - - -
20MR INGLEBY: I just read to you Paragraph No.2.
21HIS HONOUR: "You will be required to give evidence in respect
22 of your dealings with Harwood Andrews as" - what's the
23 next letter?
24MR INGLEBY: I thought it was either "previous" or "original".
25HIS HONOUR: Original it looks like, it's hard to tell,
26 "counsel for the plaintiff and with Mr Graham Devries
27 (counsel of the plaintiff)" - and the word "present" is
28 in the margin - "appearing in these proceedings and/or
29 your dealings with the plaintiff in respect of these
30 proceedings."
31MR INGLEBY: Yes. It's a matter of record Your Honour, that I
32 drew the statement of claim.

2Cressy
1HIS HONOUR: In rhe present proceeding?
2MR INGLEBY: Yes. And it's a matter of record that I appeared
3 in two Practice Court proceedings about a year ago. I
4 don't have the exact dates but I've checked my fee book,
5 I appeared before Justice Mandie on or about 19 Feb 08
6 and I appeared before Justice Whelan on or about 12 March
7 08.
8HIS HONOUR: Yes.
9MR INGLEBY: That was in relation to an application to restrain
10 Mr Johnson from selling the home in which the plaintiff
11 resided. Now the matters in Paragraph 2 of the letter
12 which Mr Johnson seeks to question me about are matters
13 which are all covered by privilege, that privilege has
14 not been waived. So my first submission is that there is
15 no useful purpose in me being called as a witness because
16 I cannot give evidence about anything that is relevant.
17 And the High Court has established that no inference can
18 be drawn from the reliance on that privilege.
19HIS HONOUR: Yes, indeed.
20MR INGLEBY: I have the reference if that's convenient to Your
21 Honour, Giannarelli v. Wraith per Justice McHugh at 98
22 A.L.R. 10.
23HIS HONOUR: It's a fairly well established proposition,
24 inference cannot be drawn against taking of a privilege
25 either against self incrimination or legal professional
26 privilege.
27MR INGLEBY: Yes, so the first submission in support of my
28 application to set aside the subpoena is that no useful
29 purpose to the determination of the matters before Your
30 Honour can be served by me being called to give evidence
31 in relation to the matters that are referred to in

2Cressy
1 Paragraph 2. My second submission is that it is an abuse
2 of process for one party to the proceedings and/or the
3 lawyer for the other party to the proceedings, because
4 this letter seems to be written in both capacities - - -
5HIS HONOUR: M'mm.
6DR INGLEBY: To subpoena a practitioner on the other side of
7 the proceedings but can or might have the effect of
8 preventing the plaintiff in these proceedings from being
9 properly represented before Your Honour if her
10 practitioners are not able to appear before Your Honour
11 and perform the various duties they have to perform in
12 relation to other officers of the court and their client
13 without fear of intimidation as constituted by a subpoena
14 which threatens contempt law and on Paragraph 6 on the
15 next page impliedly refers to me by saying that it is a
16 violation of the office and the dignity of an officer of
17 this court for solicitors and barristers to promote,
18 issue or continue proceedings. It is quite an astounding
19 proposition.
20 A statement of claim has been drawn and Your Honour
21 will decide that statement of claim on its merits.
22 That's how the system of justice works by evidence. It
23 does not work by intimidating or attempting to intimidate
24 practitioners who do nothing more than draw legal
25 documents and appear on behalf of parties in this court.
26HIS HONOUR: I should reserve that I have never ever known of a
27 member of the Victorian Bar to be intimidated and I never
28 will live to see the day Mr Ingleby so that rest assured.
29DR INGLEBY: I'm not saying that I am intimidated - - -
30HIS HONOUR: I understand what you are saying but I am drawn by
31 what you put as a possible purpose of this subpoena to

2Cressy
1 make that observation in court.
2DR INGLEBY: Mr Berry was here this morning and he is in a
3 similar capacity to me.
4HIS HONOUR: I understand that.
5DR INGLEBY: Those are my submissions Your Honour.
6HIS HONOUR: Thank you Mr Ingleby. Mr Johnson?
7MR JOHNSON: Thank you Your Honour. Firstly, thank you to
8 Mr Ingleby for mentioning Giannarelli v. Wraith. That
9 case is the - was the watershed up until 2005 of the
10 common law position that lawyers are not subject to the
11 laws of Donohue v. Stevenson. That case has now been
12 discredited in every English speaking English law country
13 other than our own Your Honour.
14HIS HONOUR: Mr Ingleby was referring to a different issue than
15 the one you are relating to. Let us stay relevant and
16 refer if you would please to the subpoena. Why are not
17 the matters you seek to elicit Mr Ingleby clearly the
18 subject of legal professional privilege? How on earth
19 are they relevant?
20MR JOHNSON: As with Mr Rees, I wish Mr Ingleby to give
21 evidence of discussions that were certainly not
22 privileged. They are relevant because they go to the
23 very heart of the cover up.
24 The awareness that this was a fraudulent, vexatious
25 and oppressive claim that was being promoted in the
26 (indistinct) against me and that was known and made
27 obvious in those discussions which were not protected
28 by privilege.
29 As early as the - I think it was 18 March 2008, it
30 was the adjournment of the first Practice Court
31 application which Justice Whelan all but threw out of

2Cressy
1 court that day as an abuse of process, the Practice Court
2 application. Made some minor orders for discovery
3 because I consented to them that he wouldn't have
4 otherwise made.
5 But it was clear those discussions were (a) not
6 privileged in any way shape or form. They admitted
7 knowledge within the legal team that they were promoting
8 a vexatious, oppressive and scandalous law suit
9 against me Your Honour. That is the evidence I wish to
10 have - - -
11HIS HONOUR: Yes.
12MR JOHNSON: May I read - "I intend to ask Richard to report to
13 the court two conversations that he and I had during the
14 course of" - sorry Your Honour 12 March 2008. This is
15 p.23 of my Pandora affidavit sworn by me as an employee
16 of the law firm representing me as defendant in these
17 proceedings and the affidavit - - -
18HIS HONOUR: I have not received this affidavit. I've told
19 you, you can read parts in court if that does assist to
20 identify any relevant issue which thus far you have
21 failed to do to which Mr Ingleby can come to court to
22 give evidence in a trial in which I am hearing.
23MR JOHNSON: I am speechless Your Honour but I will try to
24 re-catch my voice - - -
25HIS HONOUR: The day that you are speechless Mr Johnson, I
26 don't think I will ever live to see it.
27MR JOHNSON: Thank you Your Honour. I need to start again. "I
28 intend to ask Richard to report to the court two
29 conversations that he and I had during the course of 12
30 March 2008. Those conversations were within the court
31 precinct but were not on any stretch of the imagination

2Cressy
1 without prejudice to (indistinct) because they had
2 nothing to do with any sort of settling of the
3 plaintiff's claims but rather everything to do with my
4 seeking to expose the fraudulent and deceptive nature of
5 those claims and the risks to the careers and the
6 reputations of her lawyers (indistinct). I wish to ask
7 Richard to tell the court of the first conversation when
8 David Hanlon returned to me outside of the entry to the
9 Courtroom 10 a bundle of original documents the plaintiff
10 stole from me in her burglary of 16 November 2007". I've
11 got another bag full I recovered on Boxing Day last year
12 Your Honour. "I wish to ask Richard to tell the court of
13 my later conversation with him when I first spoke to Lisa
14 Newcombe" harping back to Thursdays applications Your
15 Honour. "Lisa Newcombe, the solicitors for David Hanlon
16 and Harwood Andrews lawyers and Ms Sofroniou of counsel.
17 On that occasion I described William Hanlon and Harwood
18 Andrews as being little more than bush rangers with pen
19 and paper instead of guns and knives but still managing
20 to shoot themselves in the foot". It should have been
21 "feet" Your Honour.
22HIS HONOUR: I've already ruled that that conversation is
23 irrelevant.
24MR JOHNSON: If I may continue, "I wish to ask Richard to tell
25 the court of later conversation between him and I that
26 afternoon" - there is a string intermission Your Honour
27 outside Courtroom 10, "When an exasperated, shaking and
28 heavily perspiring Richard" - I'm impressed by his
29 demeanour today Your Honour - "(a) admitted - this has
30 gone way too far and then he asked me, 'And where did
31 you meet her anyway'" - and they were his emphasis Your

2Cressy
1 Honour and again I repeat that none of those
2 conversations were on a without prejudice basis since
3 they were quite the opposite of anything like
4 negotiations to produce a settlement of the plaintiff's
5 claims. The gist of those discussions was that Harwood
6 Andrews was seeking to trick me into a situation where
7 they - not the plaintiff mind you but they - they control
8 this - the plaintiff is a lady hands down Order 15
9 applies to her Your Honour - hands down. That is clear
10 from her evidence in the box and the additional evidence
11 I have to put in that I have recovered from her.
12 Harwood Andrews, they not the plaintiff - Harwood
13 Andrews would instigate (indistinct) the sale of my
14 Altona property provided that the first $200,000 of the
15 sale proceeds - and there was barely that much probably
16 anyway but the whole net sale proceeds first had to be
17 given to them, 100 grand to cover their legals and
18 second, had to be spent by me to the other 100 grand on
19 someone else's legals.
20 So that $100,000 - the first $100,000 to them to
21 take up as legal fees presumably untaxed by the court and
22 charge at extortionist rates for ridiculous work that
23 should never conceivably have been done and with no
24 practical recourse by me when the plaintiff lost her
25 case.
26 The second $100,000, if there was that much produced
27 to be wasted by me on engaging independent lawyers to no
28 doubt pursue a similar exercise to what Howard Andrews
29 were doing. That was the basis of those conversations.
30MS SOFRONIOU: Sorry Your Honour, I should make a formal
31 objection inasmuch as this isn't evidence - - -

2Cressy
1HIS HONOUR: I agree with that. I totally agree with that.
2MR JOHNSON: Your Honour, it goes to the fraud and misfeasance
3 and the only way I have of recovering the compensation
4 due to me which is by orders whether under 63(17) I think
5 it is against her present solicitors. I think that is
6 unfair. The damage should be spread between the past and
7 present legal teams to the plaintiff so I am seeking
8 compensation on Callanan's principles. Very simple Your
9 Honour.
10HIS HONOUR: You are seeking relief under your counterclaim.
11 None of the matters you've adumbrated to me relate to
12 your counterclaim.
13MR JOHNSON: I am seeking relief on the basis I have no case to
14 answer against the plaintiff and I'm entitled to orders
15 for costs and damages against her past and present legal
16 team on Callanan principles - misfeasance principles.
17 The damages can leave to the other - the real
18 hearing.
19HIS HONOUR: You haven't got 20 issues of costs. You've got to
20 win that claim first and if - let's just see if we can
21 press on with the trial and see who wins and who does
22 not. Have you completed your submissions in relation to
23 this subpoena?
24MR JOHNSON: I think I've totally explained the high relevance
25 and appropriateness of this evidence being given in these
26 proceedings Your Honour.
27HIS HONOUR: Thank you Mr Johnson.
28MR JOHNSON: Thank you.
29(RULING FOLLOWS)
30

2Cressy
1 (Unrevised)
2 (Kaye J)
3R U L I N G
4HIS HONOUR: Mr Johnson has addressed Mr Richard Ingleby of
5 counsel under subpoena dated 20 January 2009.
6 In a letter sent to Mr Ingleby dated 26 January he
7 has adumbrated the reasons why he then intended to call
8 Mr Ingleby notably to give evidence relating to his
9 dealings with Harwood Andrews.
10 As original counsel for the plaintiff and in respect
11 of his dealings with Mr Graham Devries who is currently
12 appearing before me on behalf of the plaintiff in these
13 proceedings and/or in relation to his dealings with the
14 plaintiff in respect of these proceedings.
15 Mr Ingleby is correct in pointing out that each of
16 those purposes would immediately invoke the right of the
17 plaintiff to object on the grounds of legal professional
18 privilege and that no waiver of that privilege has been
19 made by the plaintiff.
20 In argument before me Mr Johnson does not seem to
21 wish to press that matter but rather has sought to
22 justify bringing Mr Ingleby to court to give evidence
23 today on other bases.
24 He has firstly referred to a discussion which
25 occurred at the court between himself and the solicitor
26 before the plaintiff in relation to the return of
27 documents on/or about 12 March 2008.
28 Evidence has already been given as to what documents
29 were or were not returned on that date. I do not see how
30 Mr Ingleby's evidence can assist in that matter.
31 Secondly, Mr Johnson seeks to call Mr Ingleby in
1.LL:MM 09/02/09 FTR:16-17 250 RULING

2Cressy
1 relation to a conversation he said he had with Mr Ingleby
2 and Ms Lisa Newcombe outside a court in which he
3 expressed relief that they were now acting in the
4 proceeding. I have already set aside the subpoena
5 addressed to Ms Newcombe on the basis that the
6 conversation would be irrelevant to the matters in this
7 case.
8 Mr Johnson has also referred me to another
9 conversation which he said with Mr Ingleby I think on the
10 same date although it was difficult to gather from the
11 way in which he has made his submissions to me today.
12 That conversation, if it occurred at all is entirely
13 irrelevant to the proceedings contained in the pleadings
14 in this case.
15 I have spent the whole of this morning pointing out
16 to Mr Johnson, as I have for two weeks last year during
17 this trial, that this is a court of pleading that I am
18 obliged to only hear and adjudicate on matters which are
19 the subject of the pleadings.
20 I cautioned Mr Johnson on 12 December that if he
21 were to issue and serve subpoenas compelling people to
22 come to court, that he must take care to ensure that
23 those people can give admissible evidence relevant to
24 these proceedings or produce documents which are relevant
25 to these proceedings.
26 It has become evident from the subpoenas on which I
27 have ruled so far that Mr Johnson has deliberately and
28 intentionally ignored that proposition.
29 I have indicated time and again during this case
30 that it is clear that Mr Johnson is a man of high
31 intellect. He is an experienced solicitor. When he has
1.LL:MM 09/02/09 FTR:16-17 251 RULING

2Cressy
1 wish to do so he has been able to address the relevant
2 issues in this case and to do himself justice.
3 It seems to me he is deliberately trying to divert
4 this proceeding away from the relevant issues for his own
5 purposes and I have cautioned him and warned him time and
6 again that that does not redoubt to his advantage. It
7 distracts him from attending to the relevant issues in
8 the case but it also runs a grave risk that I will draw
9 an adverse inference against him in relation to his
10 credibility because it does seem to me that his conduct
11 throughout this trial has been simply none other than
12 that of trying to delay and protract this case
13 deliberately.
14 It is most important that he makes one last attempt
15 to attend to the relevant issues in this case.
16 In conclusion, I should say one other matter. A
17 subpoena addressed to a party or person is a order of
18 this court compelling that person to come to court.
19 Practitioners, day after day, issue subpoenas, and in
20 doing so, they take conscientious care to ensure that
21 they only bring to court, under a compulsion of this
22 court, people who can genuinely give evidence relevant to
23 cases.
24 The right to issue subpoenas carries with it
25 corresponding responsibilities to ensure that people are
26 not disrupted in their practices, and are not brought
27 without warning compulsively to court by a court document
28 to give evidence and produce documents that are entirely
29 irrelevant to the proceeding. It is most important
30 Mr Johnson bear that carefully in mind in relation to any
31 further subpoenas he sees fit to issue in this
1.LL:MM 09/02/09 FTR:16-17 252 RULING

2Cressy
1 proceeding, otherwise clearly the inference will arise it
2 is deliberately breaching the privileged which he has in
3 issuing subpoenas.
4 Having said all that, it is clear that the subpoena
5 addressed to Mr Ingleby is oppressive, vexatious, an
6 abuse of the process of this court, and it will be struck
7 out on those bases.
8 - - -
1.LL:MM 09/02/09 FTR:16-17 253 RULING

2Cressy
1HIS HONOUR: Mr Ingleby, do you make any other application?
2DR INGLEBY: No, Your Honour.
3HIS HONOUR: Thank you, thank you very much.
4DR INGLEBY: Thank you.
5HIS HONOUR: I shall therefore order, perhaps before you
6 depart, Mr Ingleby - - -
7DR INGLEBY: Sorry, I do apologise.
8HIS HONOUR: No, that's all right, I don't blame you for being
9 keen to get out of this court. I shall order that the
10 subpoena to Mr Richard Ingleby dated 20 January 2009
11 shall be struck out on the basis that it is oppressive,
12 vexatious, and an abuse of process to this court. Thank
13 you for your attendance, you're excused.
14DR INGLEBY: Thank you, Your Honour.
15HIS HONOUR: Mr Johnson, is there anyone at court who you have
16 subpoenaed to court, or anyone else who has come to court
17 today, to give further evidence in relation to your
18 counterclaim?
19MR JOHNSON: I'm not expecting anyone until 2.15 today, Your
20 Honour.
21HIS HONOUR: Who are you expecting at 2.15, Mr Johnson?
22MR JOHNSON: A police officer, Constable Jennifer Locke.
23HIS HONOUR: Jennifer Locke, you foreshadowed calling her last
24 year, that's right.
25MR JOHNSON: Yes.
26HIS HONOUR: Will you be calling any other witness in your
27 counterclaim?
28MR JOHNSON: No, I won't, Your Honour, although I do have some
29 recovered stolen evidence that I mentioned.
30HIS HONOUR: Yes, you told me that you had found further
31 documents.
1.LL:SK 09/02/09 FTR:18 254 DISCUSSION

2Cressy
1MR JOHNSON: Yes.
2HIS HONOUR: What I think you'll need to do is to presume your
3 evidence to give evidence as to where you found them, and
4 then we'll produce them, and subject to hearing from the
5 parties, I'll receive them as further exhibits in the
6 proceeding.
7MR JOHNSON: Thank you.
8HIS HONOUR: You follow that?
9MR DEVRIES: Your Honour, I'm quite happy for Your Honour to
10 receive the bundles of what I understand are documents
11 relating to properties without any enquiry as to –
12 without any admissions as to their provenance.
13HIS HONOUR: So you don't require any evidence to be given as
14 to where – where Mr Johnson found them? I would need
15 some – I would need to be told, and there may be common
16 ground as to when he found them and physically where they
17 were.
18MR DEVRIES: No, there was no common ground on that, there was
19 common ground as to the fact that he came – sorry, with
20 respect, Your Honour, he can tender those - - -
21HIS HONOUR: Yes, well, part of his counterclaim is that your
22 client took his documents, and part of the response of
23 that has been, "Yes, we took them, and we've returned
24 them". Now, Mr Johnson seems to be saying that he's
25 found more of them that were not returning on that basis.
26 Now, I may be misunderstanding him, is that what you're
27 saying, Mr Johnson?
28MR JOHNSON: I've found two lots of loot, Your Honour. One is
29 two bags of the contracts that were the subject of - - -
30HIS HONOUR: Where did you – which document – where did you
31 find them?

2Cressy
1MR JOHNSON: Should I be in the box - - -
2HIS HONOUR: I think it is probably better you do that,
3 because, while Mr Devries has tried to shorten the
4 matter, I don't think you'll succeed in doing it.
5MR DEVRIES: NO, it doesn't sound like it, Your Honour.
6HIS HONOUR: I do think it's better to hear viva voce evidence
7 on this, Mr Devries.
8<HAROLD JAMES JOHNSON, recalled:
9WITNESS: (Indistinct) just about the oath process, because I
10 swore a special oath on 7 May 1990, the day I signed the
11 court roll, so I'm just wondering why doesn't – I think
12 that oath binds me on everything I do every day - - -
13HIS HONOUR: No, the - - -?---Inside and outside of - - -
14The oath that you have been reminded of by Mr Richards today is
15 the oath which you took when you first gave evidence in
16 this trial to tell the truth, the whole truth, and
17 nothing but the truth?---Yes, your - - -
18Do you understand that?---Of course, and I take that – that's
19 what I regard as a common oath - - -
20I'm not interested - - -?---- - - under my special oath of
21 nearly 19 years standing - - -
22Mr Johnson, you're again deliberately wasting time. Now, you
23 have entered the witness box to give further evidence.
24 What, you say you have found some further documents, is
25 that right?---Yes, Your Honour. I have an affidavit that
26 I swore dated 16 January this year which outlines the
27 evidence. Basically what happened is when the trial
28 started, Ms Cressy started giving evidence, she gave
29 evidence to the fact that she was no longer at my house
30 at Point Cook. What I did is I'm now back in possession
31 of the property, Your Honour.

2Cressy
1Yes?---She's not there, it has to be used, and of course - - -
2This is 2 Dorrington Street?---2 Dorringston Street, and
3 7 Inverloch Drive.
4(CNP: Yes?---It's one property on two titles, Your Honour)
5HIS HONOUR: Yes?---It's one property on two titles, Your
6 Honour. I went to the house on boxing day last year and
7 in my garage there's a frightful mess. I cleaned some of
8 it up, but I'm still getting there. I found three bags
9 of evidence, Your Honour. Two bags are the documents
10 that were discussed before Justice Wheelan on 12 March
11 that were supposed to be given - - -
12Well, they're talking about Justice Wheelan, but what are
13 they?---Large tract of original contracts for their
14 construction purchase financing refinancing of my
15 property (indistinct) Your Honour.
16That's all?---Yes. So I've got two bags – two bags here.
17 There is one – one of these folders already. It's
18 sitting on your associate's desk, the blue one, Pointe
19 Cook, Inverloch Drive. So I would ask just for
20 convenience if these two bags of documents be recorded as
21 Exhibits B and C or - - -
22Well, we'll see them in due course?---Yes.
23That I think - - -?---I do describe them. I list the folder
24 names in my affidavit of 16 January.
25I think – was that the – did you say the one which is on my
26 associate's desk relates to 7 Inverloch Drive?---It's
27 this blue folder here, Your Honour.
28What Exhibit number? Exhibit? Exhibit 1 is recorded as being
29 the blue folder of documents relating to the purchase of
30 property at 7 Inverloch Drive, Hoppers Crossing. It was
31 originally tendered by identification and made

2Cressy
1 (indistinct) absolutely (indistinct). All right, so that
2 relates – and you said to me that you in fact had other
3 documents of that (indistinct) which were not made
4 available to you?---And a lot of them are here now, Your
5 Honour.
6Sorry?---A lot of them are here now, Your Honour. That's right
7 – that is what I said.
8So what are they? You've got folders for each of the
9 properties, do you?---Yes, Your Honour.
10I suggest you lie them down on the side or there's going to be
11 physical disaster?---I nearly broke my back bringing them
12 to court today Your Honour. There's a blue one, Hoppers
13 Crossing No.2, Hoppers Crossing No.3. I have indexed
14 them in my affidavit.
15I think the best thing is – I should – I'll need to receive
16 these each as exhibits. You say you found these in the
17 garage, they relate to different properties which are
18 simply given separate exhibit numbers, do you follow?
19 ---But I would have thought that the – connected with one
20 – I mean these should have been given to me when I was
21 given one. I was given one obviously by accident. I'm
22 not quite sure how you describe how I received these,
23 Your Honour.
24Well, let's do them property by property as this – I'll receive
25 each one as a separate exhibit?---I think there's gaps
26 and it will take quite a bit of time but I have listed
27 them in my – in my affidavit.
28Well, what's the affidavit? What date is this?---The 16
29 January Your Honour.
30I haven't – as I said, I've declined to free that because it
31 would not be right for me to do so. Does that only

2Cressy
1 relate to this list or what?---It covers these documents
2 that I found, it covers (indistinct) loot from the
3 burglary of 16 November.
4I think what we'll do there is I think we'll - - -?---And it
5 covers some other documents in this person's own
6 handwriting.
7- - - ask the question. I think what we'll do – the documents
8 that you say you've found is on 26 December. I'll
9 receive it – you've got a number of folders. Are you
10 able to tender me the folders that relate to a specific
11 property or do they?---Yes.
12Well, which one? Start with one, you can use?---Maybe I'm
13 being pedantic Your Honour, but they just look – we've
14 got Exhibit 1, so maybe they should be 1A, 1B, 1C to keep
15 them all together?
16If you think that will assist?---Exhibit 1 is all of the
17 original contracts that - - -
18No, it isn't. Exhibit 1 just relates to 7 Inverloch Drive?
19 ---Yes, that's right, but these are – I mean, these are
20 siblings.
21These are what?---Siblings? They're part of the one set of
22 documents.
23Do they relate to 7 Inverloch Drive too?---One of them does, I
24 think. I thought that was the only folder, but then I
25 found another one. There you go.
26Mr Johnson, do you wish to tender them, you get them in order?
27 ---Thank you, Your Honour. Page 2 of my exhibit number,
28 35, to an affidavit of 16 January this year, that I'll
29 just go through the list. Point Cooke, Dorrington Street
30 - - -
31So you're going to file it there relating to Dorrington

2Cressy
1 Street?---Yes.
2Let's pull that out on that Exhibit 1A. Has counsel the
3 opportunity to see these documents?
4MR DEVRIES: No, Your Honour, I'm aware of their existence.
5HIS HONOUR: Yes, well, what I will do then is Exhibit 1A will
6 be a – this looks like a green folder? (Indistinct) will
7 adjudicate on the colour scheme. So this relates – the
8 green folder of documents relating to – is this just the
9 construction of Dorrington Street, it looks like to me?
10 ---I haven't really looked at it, Your Honour. I think
11 so.
12Well, I think it'll be – I'll put it generically, Exhibit 1A
13 will be a green folder of documents relating to the
14 purchase of in construction of the property at 2
15 Dorrington Street Hoppers Crossing.
16
17#EXHIBIT 1A - Green folder of documents relating to
18 construction of 2 Dorrington Street,
19 Hoppers Crossing.
20Next document, what have you got there?---This is Hoppers
21 Crossing 02, second folder in this series.
22When you say Hoppers Crossing, which property?---Ah, look it's
23 probably both because they were twins and I did them both
24 at the same time and – and a lot of the paperwork I did
25 (indistinct) was working longer. So there's a lot of
26 cross filing. I'm just taking - - -
27Do you mean Lisa Court and Hawkers?---Hawkers Court, yes, Your
28 Honour, yes.
29Well, Exhibit 1B will be a blue folder of documents?---It might
30 be worthwhile - - -
31These relate to other properties – Oakwood Estate?---No, no,
32 that was the original.

2Cressy
1I see?---There's Lot 48 and Lot 108.
2And then they renamed Lisa Court?---Yes, Your Honour.
3Well, Exhibit 1B will be a blue folder of documents relating to
4 the purchase, construction of the properties at all of
5 Lisa Court and 10 Hawkers Court Hoppers Crossing?
6 ---It might be worthwhile to include the labels on the
7 folders and the exhibit names, Your Honour.
8The labels are on the outside?---They all have labels, Your
9 Honour, yes.
10
11#EXHIBIT 1B - Blue folder of documents relating to
12 purchase, construction of properties in
13 Lisa Court/ Hawkers Court Hoppers
14 Crossing.
15Thank you, I thank you for drawing that to my attention.
16 Exhibit – I think that's fairly clear anyway?
17 ---Thank you Your Honour. This is the other Inverloch
18 Drive one. That's labelled 04 which tells me that
19 there's a two and a three still missing.
20Yes. Thank you.
21HIS HONOUR: Thank you.

22
23#EXHIBIT 1C - Blue folder labelled Point Cook,
24 Inverloch Drive 04, relating to the
25 property, and 7 Inverloch Drive, Point
26 Cook.
27WITNESS: Thank you, Your Honour. The next one is Hoppers
28 Crossing, Wentworth. That was the model design for one
29 of the houses, I can't remember which.
30HIS HONOUR: So it's either Hawkhurst Court or Lisa Court?
31 ---Yes.
32Thank you?---But again it kind of keeps documentation for both.
33 There's a home loan application form in there that I do
34 want to - that jogged my memory when I saw this, so you
35 want to come back - I put - - -

2Cressy
1Do you want to say something about that?---I do, Your Honour,
2 because it jogged my memory at one point.
3I'll just put a little note there. There's a home loan
4 application form. Once you finish this tendering, we'll
5 go back to it, all right?---Thank you.

6
7#EXHIBIT 1D - Green folder labelled Hoppers Crossing
8 Wentworth relating to the purchase and/or
9 construction of the properties at Lisa
10 Court and Hawkhurst Court, Hoppers
11 Crossing.
12WITNESS: At Hoppers Crossing 03, Your Honour, again the two
13 Hoppers Crossing properties.
14HIS HONOUR: Yes.

15
16#EXHIBIT 1E - Folder Hoppers Crossing 03 relating to
17 the two Hoppers Crossing properties.
18WITNESS: The last one is another property which I rented, it's
19 my virtual office which I still keep today, Osborne
20 Street, South Yarra. It was in the bag, Your Honour,
21 I've just brought the bags and I found them.

22
23#EXHIBIT 1F - Blue folder labelled Osborne Street
24 office.
25And the bag, Your Honour?
26HIS HONOUR: Sorry?---This is the bag that I found them in.
27 I'm - - -
28(Indistinct), do we need that bag? I think we'll just put them
29 in the - you've told - - -?---I brought them exactly as I
30 found them. The only thing I adopt - added is that sign
31 it sticker to the loan application to remind me - - -
32No, I don't think we really need the blue bag. You've told me
33 you found them in a blue shopping bag?---Yes. And then
34 we have the white Target bag.
35So you tell me you found Exhibits 1A to 1F in a blue bag, and
36 now you've - - -?---Yes.

2Cressy
1- - - taken some folders out of a white bag?---This is the
2 original Point Cook, Dorrington Street, sequentially the
3 first property I purchased, and I think I said in
4 evidence that this was a pink folder, so my memory - - -
5Thank you.
6
7#EXHIBIT 1G - Pink folder labelled Point Cook,
8 Dorrington Street.
9WITNESS: This is Dorrington Street again, 03.
10
11#EXHIBIT 1H - Blue folder, Point Cook, Dorrington
12 Street 03.
13And this is Dorrington Street again, 04, Your Honour.
14HIS HONOUR: Thank you.

15
16#EXHIBIT 1J - Blue folder, Point Cook, Dorrington
17 Street 04.
18WITNESS: Thank you, Your Honour, and the last one is Hoppers
19 Crossing again, 04.
20HIS HONOUR: Thank you very much.

21
22#EXHIBIT 1K - Blue folder, Hoppers Crossing 04.
23So they're all the documents - - -?---Yes, Your Honour.
24Now before we forget, is it useful to go back to 1D and you
25 tell me what you - - -?---Thank you, thank you. I looked
26 at that folder - - -
27Perhaps if you - do you want to have a look at that?---Yes.
281D you flag is - if you show it perhaps to Mr - - -?
29 ---That's - - -
30- - - you flag some home application, 1D relates to the Hoppers
31 Crossing properties?---Thank you, Your Honour. My
32 original and current continuing banker, AMP Bank, for
33 these properties. I did the loan applications and
34 there's a copy here. There's a reference to me living at
35 that address, the plaintiff's Salvation Army, so living
36 is not the right word, in Illouera Avenue.

2Cressy
1Illouera Avenue?---Yes, previous residential address, Illouera
2 Avenue, and according to this document, I moved there in
3 May 2000 and I was there for - no, sorry, according to
4 the document I moved there in November 2000 and then I
5 moved to what was my then address at South Yarra,
6 Nicholson Street.
7Whose handwriting is that document?---It's my handwriting but
8 the dates are wrong and I'm having trouble reading that.
9 Yes, I did have it the right way, I hate reading.
10 Previous residential address was - at the time I did the
11 application I was living at 45 Nicholson Street, South
12 Yarra. I've listed that as my current address and said
13 that I moved there November 2000. The next then says
14 previous residential address and it says it's 45 Illouera
15 Avenue, Grovedale which is meant to be a reference to 5
16 Illouera Avenue, being the plaintiff's Salvation Army
17 home that she was renting, and that I moved there in May
18 2000, OK. Now in point of reference, May 2000 was the
19 month before Illyana - Patricia Cressy was born and so
20 when Illyana was born in June of 2000 and the birth
21 certificate shows Mum's address as 5 Illouera Avenue,
22 Grovedale, and it shows my address as my home at that
23 point in Gheringhap Street, Geelong, 142 I think it was,
24 Gheringhap Street, Geelong. So that shows that that is
25 not correct but it does show there's a six month claim on
26 that document that that was my previous residential
27 address. Now the dates are wrong, um, we discussed last
28 year in evidence the difference between a residential
29 address and a living address. For most of the last eight
30 years I've had six property addresses, this time last
31 year I had six business addresses.

2Cressy
1MR DEVRIES: These are submissions Your Honour, not evidence.
2HIS HONOUR: He's giving an explanation?---Thank you.
3MR DEVRIES: If Your Honour pleases.
4HIS HONOUR: I disagree with the objection, Mr Johnson is
5 entitled to give an explanation?---Thank you Your Honour,
6 I did wonder whether this was an appropriate point or
7 not, but - - -
8Well you're giving evidence?---What happened is that I obtained
9 a drivers licence, I had to do a change of address,
10 between moving from Geelong to South Yarra, I'm trying to
11 think why, why did I have to do that. I moved from
12 Gheringhap Street, because the licence is in evidence,
13 it's an exhibit and it's got 5 Illouera Avenue on the
14 back with the VicRoads sticker, why did I do that. Now
15 at that time because I was moving to South Yarra and I
16 was trying to get out of the lease for the retail
17 premises I had which was 80 Little Malop Street in
18 Geelong. I'm thinking, you know - I'm trying to get them
19 both at the same time, and actually got out of
20 142 Gheringhap and I was kind of living - because I'm
21 working like 20 hours a day so I'm practically living
22 where I had my office set up. Moved from Gheringhap
23 Street down to Little Malop Street, the upper floor of a
24 retail spot on the corner. I was trying to get out of
25 there so I must have put down - because I didn't want to
26 use that address because I was leaving soon, leaving
27 Little Malop Street soon, got out of Gheringhap, leaving
28 Little Malop soon, but I didn't have any address to give
29 because I wasn't yet at South Yarra, hadn't yet like even
30 negotiated it. So for a few months I was using
31 Ms Cressy's address as my registered address for VicRoads

2Cressy
1 purposes and that's how that licence happened to have
2 that address on it even though I never lived there. And
3 I realised that when I looked at this, but I still see
4 here the dates are wrong, um, I've referred to Illouera
5 Avenue, No.45 rather than 5 which was the Salvation Army
6 address. I've referred to that because the loan
7 application process - your address and your previous
8 address have to match up with what's on your licence,
9 that's the reason. So there's been a little bit of
10 confusion, mis-information crept in through that licence.
11 Now the really scary bit is that - or I alluded to this
12 in my evidence-in-chief and I invited Mr Devries to pick
13 this up, but I describe four occasions that Ms Cressy
14 burgled me over the years. The earliest one was a bit of
15 a rolling burglary and it was during the process of that
16 burglary, that's how she got my old licence Your Honour.
17 How else - why else would she be holding an old licence
18 of mine that expired years ago. I was at the property at
19 Point Cook yesterday and I found a whole lot of more
20 material, I found a whole lot of her lawyers' letters to
21 her - - -
22HIS HONOUR: Now I think, I see the time?---Yeah, yes.
23Now I think completed the tender of this group of documents,
24 are there any other documents that you have uncovered
25 during - - -?---Yes there is - - -
26During the two month adjournment?---Yes.
27We will deal with them after lunch.
28MR DEVRIES: Your Honour, just before we rise for lunch, can I
29 put Mr Johnson on record that I will be applying to Your
30 Honour to tender as part of my client's case, an order
31 made by His Honour Federal Magistrate O'Dwyer last Friday

2Cressy
1 relating to parenting orders for the child Illyana and I
2 will be doing that on the basis of the decision in
3 (indistinct).
4HIS HONOUR: Yes I see, well you've given him warning, you need
5 not respond at this stage but I hear what you say and we
6 can deal with that after lunch.
7MR DEVRIES: I will have my instructor give Mr Johnson a copy
8 of that particular order.
9HIS HONOUR: Thanks Mr Devries, I will now adjourn till 2.15, I
10 would think at 2.15 if the police officer Jennifer Locke
11 is here rather than inconvenience her, we will deal with
12 her evidence immediately, all right?---Thank you Your
13 Honour.
14We can resume your evidence when we have dealt with Ms Locke.
15 2.15 thanks.
16<(THE WITNESS WITHDREW)
17LUNCHEON ADJOURNMENT
18

2Cressy

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1MR DEVRIES: The matter is still proceeding Your Honour.

2HIS HONOUR: Thank you Mr Devries. We seem to have in court a

3 large number of people and I have on the court file a

4 large number of subpoenas that have subpoenaed to the

5 court by Mr Johnson I think. It might be best if I

6 effectively take a roll call from who is here and see

7 what is occurring in relation to those subpoenas. If

8 each of you could step forward one after the other we

9 will try and sort this out.

10DR INGLEBY: Good morning Your Honour. My name is Dr Richard

12HIS HONOUR: Yes.

13DR INGLEBY: My name will be familiar to you because I drew the

15HIS HONOUR: Yes.

16DR INGLEBY: I appeared on behalf of the plaintiff in two

17 pre-trial procedures before Justice Mandie on or around

18 19 February and before Justice Whelan on or about

20HIS HONOUR: Yes.

21DR INGLEBY: I have been subpoenaed.

22HIS HONOUR: You've been subpoenaed.

23DR INGLEBY: I haven't been properly served but I attend

24 because I have been given a document which - it was put

25 on my desk and has the name of subpoena so as a courtesy

26 to Your Honour I am here.

27HIS HONOUR: Do you wish to make any application in relation to

29DR INGLEBY: Paragraph 2 says I will be required to give

30 evidence in respect of my dealings as previous counsel

31 for the plaintiff with Harwood Andrews with Mr Graham

1.LL:MM 09/02/09 FTR:1-2 180 DISCUSSION

2 I applied to set it aside.

3HIS HONOUR: You will be applying to set it aside?

4DR INGLEBY: Yes.

5HIS HONOUR: Perhaps if we just take a roll call first thanks

6 Dr Ingleby. Thank you for that. You will be making

7 application to set it aside. Just a moment. Yes?

8MS REES: If Your Honour pleases, my name is Katherine Rose

9 Rees. I am a member of counsel. I was the mediator in

10 this matter on 26 June 2008.

11HIS HONOUR: In this court or in another court Ms Rees?

12MS REES: This Supreme Court proceeding.

13HIS HONOUR: In these proceedings and you've been subpoenaed

15MS REES: I have Your Honour. My involvement with the matter

16 is in relation to the mediation.

17HIS HONOUR: Do you make any application?

18MS REES: Your Honour, according to the mediation agreement

19 signed on that day, the mediation was without prejudice

21HIS HONOUR: It is privileged.

22MS REES: And it is only by order of the court that I can be

23 ordered to say anything about what happened on that day.

25 privileged communications between the parties?

26MS REES: The first time Your Honour - - -

27HIS HONOUR: Do you make any application in relation to - - -

28MS REES: I would like to be excused from giving evidence in

29 relation to that Your Honour.

1.LL:MM 09/02/09 FTR:1-2 181 DISCUSSION

2 a moment thanks Ms Rees.

3MS REES: If Your Honour pleases.

4HIS HONOUR: Thank you for your attendance.

5MR BERRY: If Your Honour pleases, my name is Peter Bernard

6 Berry. I'm the principal of Berry Family Law, the

7 solicitors for Ms Cressy and I will be seeking an order

8 that the subpoena be set aside.

9HIS HONOUR: Thanks Mr Berry. Could you also wait in line

11MR BERRY: Yes Your Honour.