H J AMES J OHNSON

HUMAN RIGHTS § CIVIL RIGHTS § CORRUPTION § MEDIA

D EFA M AT I O N § P R O F E S S I O N A L N E G L I G E N C E L AW
1 S T F L O O R 1 4 1 O S B O R N E S T R E E T S O U T H YA R R A V I C T O R I A 3 1 4 1
TELEPHONE: +613 9279 3932 FA C S I M I L E : + 6 1 3 9 2 7 9 3 9 5 5

Wenesday 21 October 2009 *** IMPORTANT COMMUNICATION

TO: Ms Miranda Milne (CEO Legal Practitioners TO: Ms Jennifer Sheehan

Liability AVOIDANCE Committee “LPLAC”) (Associate to Associate Justice Lansdowne)
By Facsimile: 9670 5538 By Facsimile: 9603 6050
TO: Mr Joe Saltalamacchia TO: Ms Cath Mukhtar
Prothonotary, Supreme Court of Victoria (Associate to Associate Justice Daly)
By Facsimile: 9603 9400 By Facsimile: 9603 9320
(please copy to Justice Kaye)
TO: Ms Rena Sofraniou TO: Mr Peter Rashleigh
(barrister funded by LPLAC for Harwood (solicitor funded by LPLAC for barrister Richard
Andrews Lawyers) By Facsimile: 9229 5050 Ingleby) By Facsimile: 9274 5111
TO: Ms Radhika Mendis TO: Mr Howard Obst
(solicitor funded by LPLAC for Harwood (solicitor funded by LPLAC for barrister Graeme
Andrews Lawyers) Devries) By Facsimile: 9605 3499
By Facsimile: 9670 2723
TO: Ms Allison Grice TO: Ms Margaret McNamara (solicitor to the legal
(solicitor funded by LPLAC for Berry Family practitioners non-regulator "LSC")
Law) By Facsimile: 9603 9320 By Facsimile: 9679 8101
TO: Mr Gerry Davies (solicitor not funded by LPLAC TO: Berry Family Law
representing Dr David List) By Facsimile: 9399 9006
By Facsimile: 9600 0894

Dear participants

VICTORIAN SUPREME COURT PROCEEDINGS 9665 OF 2007, 9263 AND 10222 OF 2008 AND 3731 AND
3766 OF 2009

1. I refer to my previous written and oral submissions in the part of these proceedings presently before
Associate Justice Daly and (as regards the Second and Third Defendants) the parallel applications currently
resting before the Court of Appeal).

Inevitable Outcome of Second through Eighth Defendants Applications

2. I have consistently maintained that the applicants who have issued these proceedings (namely the second
through to eighth defendants) in the Masters Court have done so at the wrong time and in the wrong place.
3. Associate Justice Daly does not have jurisdiction to grant these applications, so the necessary outcome is
for Her Honour to dismiss them and order costs in may favour according to longstanding principles for

MELBOURNE FRAUD AND CORRUPTION TRIAL Page 1

 solicitor-litigants which have stood since the late eighteenth century (eg British Friendly Society v
Chorley).
4. I look at the sections of the Supreme Court Act to see what jurisdiction an Associate Justice possesses. But
most of these 20 or so provisions of the Act are concerned about the superannuation rights of older
Associate Justices. Section 111 of the Act merely provides that an Associate Justice can exercise whatever
jurisdiction that the Chief Justice (properly) delegates to her (or him).

An Associate Justice has no jurisdiction, in these applications, to hear evidence

5. I note that for the purposes of these proceedings, Associate Justice Daly's Court has no jurisdiction to hear
or assess evidence. This much is clear. I believe that it has been conceded by counsel for each of the
applicant defendants. Certainly counsel for the second and third defendants, Ms Sofraniou has conceded
this, whilst at the same time deviously seeking to lead Her Honour astray from these principles.
6. I had cause last week to reacquaint myself with the High Court decisions handed down in March 2005 in the
case of D'Orta-Ekenaike v Victoria Legal Aid and Anor. That case is of some relevance to the issues in
these proceedings presently resting before the Court of Appeal, on the view (which an appellate court
exercising jurisdiction to assess evidence and make findings of fact might ultimately take) that the very worst
of the conduct of the second through to seventh defendants can be characterised no higher than
professional negligence, and not fraud and not criminal misconduct (though Justice Kaye did opine that if
proven the misconduct of the second and third defendants amounts to criminal misconduct).
7. In D'Orta-Ekenaike Mr Justice Kirby (who did not seem to be opposed in this part of his written judgement
by any of the other members of the High Court on that occasion) pointed out the dirtiness of applicants (in
that case, also being applicant lawyers) bringing these sorts of no case to answer applications as a matter of
esoteric law in a Court that lacks any power to assess evidence or make findings of fact. Courts are not
supposed to ponder questions of law in pure abstract. I attach as schedule 1 a copy of some of the more
poignant paragraphs from Justice Kirby's judgement on that occasion, regarding the practice of those (and
these) applicant lawyers.
8. Suffice to say that, for present purposes Her Honour Associate Justice Daly must assume 100% accuracy
of all of my allegations of fact necessary to establish negligence, fraud and gross criminal and unethical
conduct by the second through to seventh defendants.
9. Her Honour can take some comfort, based on factual information that I have presented with my submissions
that the higher levels of the court with jurisdiction to hear evidence and make findings of fact are almost
certain to find these assumptions to be 100% on the money.

MELBOURNE FRAUD AND CORRUPTION TRIAL Page 2

 An Associate Justice has no jurisdiction to hear federal law and federal constitutional law issues
10. The situation here is the same. Her Honour Associate Justice Daly, lacking jurisdiction to entertain federal
law and federal constitutional law issues again must assume 100% accuracy of all of my allegations on
matters of federal and federal constitutional law.
11. This is of particular relevance as regards the application of the eighth defendant by counterclaim, who is
asserting the existence of a federal statutory immunity that takes away my common law rights to sue him for
professional negligence and even, his counsel would put it, removes my common law rights to sue him for
deliberate malice, defamation and fraud.
12. I am in the process of filing papers to appeal the rulings and orders made by the ninth defendant, Federal
Magistrate Daniel O'Dwyer. I can finally commence this process, now that the bicephalous peak legal
regulator, the chief executive of the Legal Services Board / Legal Services Commissioner, Ms Marles, has
after months of delay unwillingly complied with her legal obligations to provide me with copies of the two
psychiatric reports prepared by Dr John Buchanan and Dr Tim Entwistle, the two psychiatrists who have
provided markedly different diagnosis in connection with these matters.
13. My grounds of appeal are that the orders made by the ninth defendant (notably on 9 September 2008 and
on 26 February 2009) qua Federal Magistrate exercising powers under federal legislation, namely the
Family Law Act 1975 are unlawful as they are vitiated by errors of process, errors of law and errors of fact.
14. The first ground of my appeal is that the ninth defendant, Daniel O'Dwyer lacked jurisdiction to conduct any
hearings because of the complex nature of those proceedings, requiring if properly conducted a hearing of
substantially more than the 2 days, exceeds the maximum complexity and duration allowable to attract
jurisdiction of the federal magistrates court. The ninth defendant's own legal representative engaged in the
proceedings made this application as early as May 2008 and the ninth defendant ignored it. An astute
reader will already be thinking, 'this is indeed a very odd sort of a Court where the judge engages himself a
lawyer to appear before him to commission and to produce expert evidence, to make submissions of law
and to cross-examine the original parties to the proceedings.' As to this, see below and my preliminary
analysis of Chapter III of the Australian Constitution as set out in schedule 2.
15. The second ground of my appeal is that the ninth defendant's rulings and orders were unlawful because of
apprehended bias and even executed (signed, sealed and delivered) bias. The ninth defendant fully refused
4 applications by me, beginning as early as May 2008 to withdraw himself from those proceedings. The first
of these was on grounds of Johnson v Johnson (no relation) apprehended bias. The last couple of these
were on grounds of executed (signed, sealed and delivered) bias not mere apprehended bias as the ninth
defendant had vindicated my negative apprehensions well and truly by that stage.
16. The third ground of my appeal is that the ninth defendant's orders were in direct violation and breach of key
provisions of the Family Law Act 1975 (including section 121 for starters). A federal magistrate has never

MELBOURNE FRAUD AND CORRUPTION TRIAL Page 3

 had power to overrule or ignore parliamentary laws. This is as true today as it was in Tudor times (when
even the reigning King, Henry VIII was held to lack power to overrule parliament made laws).
17. The fourth grounds are various constitutional arguments as to invalidity of certain provisions of the Family
Law Act as being outside the constitutional powers of the Federal Parliament, many of which I have
foreshadowed in my Notice under section 35 of the Victorian Charter of Human Rights and
Responsibilities Act (which, together with the appended materials thereto, forms part of the submission
material in all parts of these proceedings – including these applications before Associate Justice Daly).
18. The fifth to ninety-ninth grounds are various errors of due process, errors of law and errors of fact, of various
degrees of severity ranging from minor to very extreme.
19. However I now realise, as I have articulated in schedule 2 to this letter in very preliminary fashion, that
there is a more fundamental jurisdictional problem with the rulings made by the ninth defendant sitting as a
purported judge in the federal magistrates court. And this ground stands supreme above the ninety-nine I
have outlined above.
20. This is the ground that the Family Court (and the Federal Magistrates Court when exercising subordinate
judicial powers pursuant to the Family Law Act) is an unconstitutional body, an even more monstrous
violation of the doctrine of separation of powers (in particular the strict separation of judicial from non-judicial
governmental powers) and thus even more unconstitutional than other hybrid federal bodies purporting to
possess a mix of executive and judicial powers, such as the ill-fated Interstate Commission and several ill-
fated constitutions of commonwealth Courts of Conciliation and Arbitration, and is even more damningly
unconstitutional. I am yet to work through the full implications of a situation where all of the findings and all
of the orders made by the Family Court (and its more recently created and now re-absorbed delegate, the
Federal Magistrate Court) over its 34 year history are null and void ab initio on account of the Family Law
Act and those bodies being irreparably constitutionally invalid. For present purposes of these applications
before Associate Justice Daly, I note that Her Honour must assume the 100% accuracy of all of my
submissions on federal constitutional law matters.

No jurisdiction to hear matters of fact and issues of law sub judice the Court of Appeal
21. I struggle to find what jurisdiction Her Honour Associate Justice Daly has to do anything with these
applications by the second through to the seventh defendants inclusive other than to dismiss them (for being
brought at the wrong time and in the wrong place) and order costs against them in my favour. However it is
clear that the Chief Justice could not possibly properly delegate to an Associate Justice jurisdiction to hear
issues of law (and fact) that are currently before the Court of Appeal. The Chief Justice could not
conceivably purport to delegate to an Associate Justice jurisdiction to hear things (legal arguments) that
under the Supreme Court Act are within the sole jurisdiction of the Court of Appeal. The contemporaneity of
these parallel applications by the second and third defendants in the Court of Appeal (before the Chief

MELBOURNE FRAUD AND CORRUPTION TRIAL Page 4

 Justice no less) and in the Masters Court merely underscores the absurdity of their applications in the
Masters Court. Though the applications by the fourth to eighth defendants are no less ridiculous for lacking
this limb of application, for it is ultimately, the ultimate findings of fact by the appellate courts in respect of the
underlying false claim brought for Ms Cressy against myself that will deliver the findings of fact on which all
of these defendants (by counterclaim) will be successfully prosecuted in these civil proceedings and, in all
probability in criminal proceedings that these same defendants have progenated by issuing and maintaining
those proceedings for Ms Cressy when any honest professionals would have acknowledge at or near the
very outset were hopelessly false, fraudulent and criminal.

Comments on Application for Costs by Legal Services Commissioner

22. I have already made substantial submissions on the absurdity of this application by the Legal Services
Commissioner and as to why this application was also misconceived and must be dismissed with costs
ordered in my favour.
23. My submissions include making available copies of transcript recording Justice Kaye's transcript that the
Legal Services Commissioner has statutory duty to investigate my complaints, not the Court. In this regard,
His Honour agreed with my analysis.
24. The Victorian State Ombudsman has recently expressed uncategorically his agreement with His Honour and
myself, as I have recounted in my recent submissions.
25. I have explained several times that our bicephalous Legal Services Commissioner, Ms Marles, who is an
Australian legal practitioner currently holding full rights to practices as such, would fail Year 7 legal studies
for not knowing that newer laws (made in 2004) prevail over older laws (made in 1993) and that
parliamentary laws (her 2004 enabling legislation the Legal Profession Act 2004) prevail over judge made
laws (an unreported 1993).
26. Yet, as I have demonstrated with my submissions, as of mid-September 2009 Ms Marle's office continues to
maintain that she cannot exercise her 2004 statutory powers because of a 1993 judge made law at a time
when there was a completely different statutory regime and regulatory issues were peripheral to that
decision in any case. The only difference between her office's letters of May 2008 and September 2009 (as
a result of her involvement in these proceedings is that she has deleted the reference to Delahunty v
Howell and Mann (though not corrected her disastrously inept and stupid analysis of the implications of that
1993 case in overriding her principal functions under the
27. Ms Marles letters can also be seen, in light of my constitutional law analysis in schedule 2, as an attempt to
thrust onto the judicial arm of Government in this State her office's investigatory powers of executive
government. Justice Kaye was correct, to say that this was absurd, without even thinking it through to first,
constitutional principles – the Legal Services Commissioner's contentions, and the mischief’s that they
cause to persons already suffering the consequences of bad lawyering – just as Justice Kaye, and I and the
Victorian State Ombudsman have already exposed. Constitutional law, the separation of powers of the

MELBOURNE FRAUD AND CORRUPTION TRIAL Page 5

 Australian federal Government into its three arms – parliamentary, executive and judicial is another aspect of
Year 7 legal studies that students are taught in the opening weeks of term. How did this woman pass her
Year 12 exams (one boggles at all manner of possibilities) let alone make it into university, let alone
graduate from a university with a bachelor of law degree?

Recent High Court and Court of Appeal judgements – fortifying as to eventual outcomes
28. I have mentioned several recent High Court and Court of Appeal judgements that fortify me as to the
eventual outcomes of these proceedings.
29. In his judgement in AON v ANU of August this year, Chief Justice French notes that senior counsel for (the
successful) AON, namely JJ Gleeson SC who appears with a junior for the eighth defendant in these
proceedings (before Associate Justice Daly) asserted to him that that AON’s case was a 'landmark case'.
The successful contention by JJ Gleeson was that it was a denial of the right to a fair hearing that the ACT
trial judge at first instance allowed the plaintiff University to amend its statement of claim against his client,
insurer AON, on the third day of a 4 week trial.
30. Well how much more prominent on the legal landscape are these proceedings, as presently resting before
the Court of Appeal, where the trial judge at first instance allowed Ms Cressy's counsel, Graeme Devries to
amend her statement of claim on the third day of a 4 week trial, radically changing one set of lies (she was a
impersonating a de facto Mrs Brady on day one of the trial) for another set of lies (suddenly, she was
impersonating Heidi Fleiss on day three), with the change made (a) after Devries her Counsel had finished
presenting and all but formally closed her case (which he did in the opening minutes of the 4 th day) and
when Devries had in any event failed to produce anything like solid evidence supporting either set of lies - or
both sets of lies [as it seems that the trial judge allowed both sets of lies concurrently though they were
surely mutually exclusive]; and (b) after the trial judge had forced a self-represented Mr Johnson, a law man
of zero litigation experience, unprepared and surprised [by an unlawfully obtained twelve month early trial
date] to proceed with a raw February 2008 version of his defence and counterclaim and denied him the
November 2008 version of his defence and counterclaim, because, for technical reasons that ought not
have been beyond the scope of the trial judge to understand and manage, his re-written counterclaims had
been filed under a newer proceeding number with a pending application for consolidation of the two.
31. And I note that in terms of my 10 October 2009 '20 to 1' analysis of why this was not a proper or fair hearing
of issues before Justice Kaye, JJ Gleeson's single point (plaintiff not allowed to amend a statement of claim
on the 3rd day of a 4 week trial) struggles to rate as point number 3. JJ Gleeson SC’s landmark point of law
is outranked by 2 far more serious and sinister points and is accompanied by dozens of just as points, not
just JJ Gleeson SC's single solitary 'landmark point'.
32. I also note that JJ Gleeson SC seems to have run the “right to a fair hearing” point solely based on the
common law recognised human right. Perhaps for some valid reason (eg on instructions, or after
advisement for strategic reasons, or perhaps because of a mis-fit of commencement dates for the ACT

MELBOURNE FRAUD AND CORRUPTION TRIAL Page 6

 Charter and the critical date of amendment in those proceedings) it seems that JJ Gleeson SC did not make
the equally and in fact more powerful argument (on principle that a parliamentary law prevails over a judge
made law) that the ACT trial judge's decision was inconsistent waving through that amended statement of
claim was inconsistent with the basic human right to a fair hearing under the ACT's new human rights
legislation (on which the Victorian Charter of Human Rights has been modelled and improved).
33. In her judgement in September this year in Re an application under the Major Crime (Investigative
Powers) Act 2004, Her Honour the Chief Justice also points out that the common law long recognises the
right of an accused (in criminal proceedings, but also in civil proceedings) to receive a fair trial,
independently and well before the parliamentary recognition or creation of the same right pursuant to the
Victorian Charter of Human Rights and Responsibilities Act.
34. I note reports in yesterday's daily press of a a Court of Appeal proceedings Rees v Bailey Aluminium
Products Pty Ltd and Anor, being proceedings number 7149 of 2002 [NB] heard by Ashley and Redlich
JJA and Coghlan AJA in March 2008, with their judgement given on 5 December 2008 and with subsequent
costs orders handed down by Their Honours on 14 May 2009. Reportedly, these 'fiasco' proceedings where
two senior barristers played up and “poisoned the well of justice” was mentioned by the Chief Justice in a
recent speech, along with a 'warns [the legal profession that our] duty to the court must come before
winning [at all costs]'.
35. I attach as Schedule 3 a copy of an article from Monday's newspaper recording the extraordinary 'fiasco' in
that case, concerning a personal injury claim following a man falling off a ladder.
36. I ask (with reference to my '20 to 1' analysis) how much more of a fiasco were the proceedings before
Justice Kaye (and even prior to that, courtesy of various practice court hearings) wrongly initiated and 'won'
ahead of their duty to the court by the second through to seventh defendants?
37. Surely it is a hundred times worse when the “well of justice” is poisoned by the plaintiff's legal brigade, both
inside and outside of court room, wasting the Court's time with claims and misconduct that amounts to an
audacious blackmail?
38. The second through to seventh defendants used enough illicit poison, 20 times over, to poison not only the
well of justice in these Supreme Court proceedings but to leave the groundwell of justice so contaminated
that the water source and infrastructure may need to be substantially renovated and rehauled to remove the
continuing bitter taste of poison flowing permanently through the law.
39. As regards the second through to seventh defendants “poisoning the well” in Court, here is a repeat of just
the top 10 of the ('20 to 1') poisonings that I listed in schedule 2 of my submissions of 9 days ago:

‘Here are the Ten Top Reasons (in ascending order) demonstrating the unlawfulness of process and resulting
unlawfulness of decision making before Justice Kaye during December 2008 and February 2009 in the Cressy v
Johnson proceedings. And Ms Sofraniou and her instructors being fully-paid witnesses to these ten atrocities, it
is gross professional misconduct to assert to Your Honour Associate Justice Daly that my claims against Ms

MELBOURNE FRAUD AND CORRUPTION TRIAL Page 7

 Cressy's original solicitors, David William Hanlon and Harwood Andrews were fully and fairly heard by Justice
Kaye.

10. Turn Out Ms Cressy's lawyers were so without evidence for her claims that they resorted
Your to alll sorts of lawless shinanigans. With no discovery, they subpoenae Mr
Pocketses Johnson's banks (who delivered up documents without objecting to those
subpoenas as they should have objected given their privacy duties to their
customer). Those subpoenaed documents turned up on 2 December 2009
and did nothing but endorse the truth of Mr Johnson's case and the deceipt of
Ms Cressy's outlandish claims.

Under cross examination Mr Johnson was compelled to turn out his pocketses,
to disgorge his victorian drivers licence. Otherwise Devries and the Trial
Judge were going to assume (falsely) that it showed Mr Johnson as having the
same residential address as Ms Cressy. Of course, it didn't. Mr Johnson had
to drive (despite a debilitating back ache that left him without sleep for the first
4 nights of the trial and lingering pain into the second week) for over an hour,
each way, to retrieve his Victorian drivers licence (which again strenghtened
the truth of his case) rather than being damned by this false assumption from
this false, abuse of process.

Haven't Ms Cressy's lawyers and the Trial Judge heard of pre-trial discovery
and notices to produce?

9. Ms Ms Cressy's hard evidence of a 9 year de facto relationship consisted of 2

Cressy's valentines cards, one February 1999 and one February 2000. And that's it.
Case The first recorded that Mr Johnson and Ms Cressy were dating of sorts as at
Contains February 1999. The latter recorded that Ms Cressy and Mr Johnson were not
No even in speaking contact as ast February 2000.
Evidence
Otherwise, Ms Cressy's evidence consisted of her contradictory, unconvincing
and uncorroborated testimony. With the Trial Judge making serious findings
as to her dishonesty in the witness box, her dishonesty to earlier judges, and
dishonesty with the police. The Trial Judge also made serious findings as to
her commiting acts of aggravated burglary, to steal and conceal evidence
establishing the fraudulent nature of her claims.

Ms Cressy and her lawyers were clearly informed that Mr Johnson denied any
de facto relationship with Ms Cressy and denied sharing a residence with her
(other than for a period in 2001 – 2003 to save Ms Cressy and her children
from being homeless). Their failure to bring the sort of evidence (testimony
from relatives, friends, acquaintances, neighbours and indica of ordinary family
life – photo albums, birthday cards, family videos) were all a deafening silence
as to the falsehood of her claims.

Ms Cressy's statement of claim asserted she gave Mr Johnson deposit monies

when he bought his properties. No evidence was produced at trial to support
this claim. The Trial Judge found that these claims were falsehoods.

Ms Cressy's statement of claim asserted a number of sources of income for

the period relevant to her claim. Again no evidence was produced at trial to
support these claims. There was no evidence of Ms Cressy earning even a
single dollar, let alone giving Mr Johnson a single dollar, or even buying Mr

MELBOURNE FRAUD AND CORRUPTION TRIAL Page 8

 Johnson a cup of coffee at any time relevant to the period of Ms Cressy's
claim. The Trial Judge called this, time and time again “the paucity of the
evidence”. It was no “paucity” but a total absence of credible, reliable
evidence for the Plaintiff's case.

8. Forget Mr Johnson called one of Ms Cressy's neighbours whom he did not know prior
about Mr to the commencement of legal hostilities. Ms Cressy's neighour testified that
Johnson's Ms Cressy lived as a single mother with her children and that Mr Johnson was
Full Case a non-live with father figure to the children. Ms Cressy's neighbour also
of testified to #
Evidence
Mr Johnson called one of Ms Cressy's boyfriends of 2000 – 2003, whose
relationship with Ms Cressy was confirmed by evidence of a Senior Detective
from the Purana Taskforce.

Mr Johnson produced the birth certificate for Ms Cressy's youngest child,

which lists him as the biological father, and records his residential address as
at June 2000 which was some 15 kilometres and postcodes apart from Ms
Cressy's residential address from 1998 to 2001 (as recorded on the same birth
certificate). Justice Kaye needs to attend both Rob Hulls judicial reform school
and Chief Justice Warren's judicial reform school to learn the evidentiary value
of important statutory records like birth certificates.

Mr Johnson produced independent witnesses and substantial documentation

establishing his residential address from mid-2003 onwards was 668 Bourke
Street Melbourne – a totally separate 15 kilometres from Ms Cressy's
household for all of that period, being the whole of the period relevant and fatal
to Ms Cressy's claims.

Mr Johnson's earnings and bank statements and 100% funding of all of his
properties was fully established with all of his fee slips, many of his tax returns,
all of his borrowing documents and property contracts tenderered in evidence.
This evidence was corroborated by independent testimony of his mortgage
broker.

7. “I am in Ms Cressy's case depended solely on her credibility. This was totally dashed
truth a by her criminal conduct (as found by the judge) leading up to the trial, and his
beautiful findings of dishonesty and lying to police and from the witness box. It was also
liar” totally dashed by being totally contradicted by all of the independent and
reliable evidence provided as part of Mr Johnson's case.

Ms Cressy's testimony was of no evidentiary value (except for the purposes of

proscution for the crimes she thereby commited). The Trial Judge found her to
be an unreliable liar. The psychiatrist report prepared by Dr Entwistle (used by
her barrister Graeme Devries and the Trial Judge for ulterior and unlawful
purposes on the first morning of the “trial”) included the serious diagnosis that
Ms Cressy was “well practised” at deceiving people. Ms Cressy's own journals
as tendered in evidence by Mr Johnson in February 2009 after finding them
abandonned by her in her former residence established that she is a self-
confessed compulsive liar. “I am in truth a beautiful liar.”

It is compelling on questions of crediblity of Ms Cressy and Mr Johnson

(having regard to Brigginshaw principles and the seriousness of any findings
of dishonest as to Mr Johnson's testimony, as a barrister and solicitor and

MELBOURNE FRAUD AND CORRUPTION TRIAL Page 9

 officer of the court of 19 years good standing) that the Trial Judge's findings be
reversed on appeal as a matter of law. Baumgartner v Baumgartner is the
High Court precedent that has relevance to these proceedings on this, and
only on this credibility issue. This is especially as Mr Johnson's testimony was,
as he deliberately explained at the outset of his evidence in chief, merely
corroborative of the independent evidence and independent witness
testimonies produce by him as part of his case to minimise the risk to himself
of being landed with false allegations of dishonest testimony.

6. The Two This was the result of gross professional misconduct by Ms Cressy's lawyers.
Day Trial Obtaining a directions hearing that Mr Johnson was unaware of until months
(Fries With later. Asserting to the Listing Master it would be a 2 day hearing. Failing to
That Order) inform the Listing Master of Mr Johnson's 3 – 4 week estimate. And failing to
inform the Listing Master that no pre-trial steps had yet been completed
(including formal discovery and finalising of pleadings).

5. No Right to The Trial Judge's insistence on allowing Ms Cressy's their unlawfully gotten 2
Discovery December 2008 trial date overlooked the gross unlawfulness of process that
resulted from skipping pre-trial stages including discovery. As the High Court
commented in Johnson v Johnson (2000 pretrial discovery is critical for the
parties and for the Court in these sorts of property claims (and that case
involved a bona fide and undisputed legally married couple – not a fraudulent
de facto claim by a desperate and mentall ill woman).

4. Mr The Trial Judge's insistence on allowing Ms Cressy's their unlawfully gotten 2

Johnson December 2008 trial date resulted in another abuse of process in that Mr
has No Johnson was held bound to litigate on his February 2008 statement of claims
Right to against Ms Cressy and her original lawyers and deprived of a fair hearing
Rewrite his which required him relying on his November 2008 updated statement of claims
claim against them. It is a small step of consistent logic for the Court of Appeal to
before the strike down that procedural error by Justice Kaye, according to the principles
Trial of 'fair hearing” described by the High Court in August this month in AON v
ANU.

3. A New Set Conversely, and unlawfully as the High Court ruled in August this year in AON
of Lies v ANU, the Trial Judge allowed Ms Cressy's lawyers to totally change her
claims on the third day of a four week trial. But unlike ANU in that case, here it
was after the plaintiff had completed presentation of her case. And also unlike
ANU in that case, here the plaintiff failed to produce any evidence to
subtantiate her claims, in circumstances where there were simply no excuses
for her or her lawyers for not bringing any evidence to trial.

2. Warping A Like in the Rubin Hurricane Curtis case, Ms Cressy's barrister, Graeme
Secret Devries withheld important evidence that he was obliged to disclose to Mr
Psychiatric Johnson not only pre-trial but when he handed it up to Justice Kaye on the first
Report – morning of the Trial. This was the Entwisle Psychiatric report – containing
Look reports on Ms Cressy's state of mental illness as diagnosed by Dr Entwistle.
Who's This report was whithheld from Mr Johnson despite repeated requests of
Calling Devries and the Trial Judge during the hearing. This report was withheld from
Who Crazy him up until May 2009 when it was reluctantlly surrendered to him by the Legal
Services Commissioner's delegate in the context of a malicously false attack
on the state of Mr Johnson's mental health (which was summarily dismissed
once the independent psychiatrist reported that Mr Johnson suffered from no
mental illnesses),

MELBOURNE FRAUD AND CORRUPTION TRIAL Page 10

 Devries misused the Entwistle Psychiatric report to cast false aspersions as to
Mr Johnson's fitness and right to defend himself against Ms Cressy's claims.
Devries should have discharged his duty of candour to the Court and the
administration of justice by admitting to the Judge that it demonstrated Mr
Johnson's claims that Ms Cressy was mentally ill and criminally inclined were
all true. Devries should have discharged his duties to the Court by
withdrawing Ms Cressy's claims as the claims of a mad woman as they are (as
the lack of substantiation demonstrates). Devries should have informed his
instructors that their client was mentally ill and that their retainer agreements
with her were therefore unenforceable as she lacked the mental capacity to
comprehend and be bound by them and lacked the mental capacity to give
instructions and to receive advice properly.

1. No Right to The Trial Judge has created a frightening situation where a defendant's basic
Defend human and common law right to defend himself in legal proceedings has been
Yourself downgraded from a “right” to a “privilege”. And at that, a “privilege” that can be
lost on an applicatio by a plaintiff's counsel to have the defendant declared
mentally handicapped at the outset and on the morning of the commencement
of a trial. This applicatoin.

This is a dangerous development in the common law of Victoria. How far does
it extend? Are only self-represented solicitor-litigants susceptible to having
their right to defend themselves reduced to a lost “privilege”? What about
other professional and unprofessional persons? Are all solicitor-litigants
susceptible or, as on the facts, only those of 18 or fewer years good standing
in the profession?

Devries failed “against [Justice Kaye's] better judgement” to have Him declare
me as mentally unfit to self-represent myself Yes Justice Kaye actually worded
it that way – an interesting self-comment on his faculties of judgemen,
considering in next to no time Justice Kaye was grandiously (and I believe
excessively and for ulterior purposes) signing my praises as a highly
intelligent man with natural abilities as an advocate for someone who had
barely ever stood in a Court before (despite being a fully practising commercial
and government lawyer of 18 years good standing). How bi-polar. How
narcisstic personality syndromed (or disordered – it being a question of
degree). One wonders what sort of personality profiling is applied to
candidates for judicial office in this State. Apart from this wonder, just imagine
what impact all of this confusion, frustration and unlawfulness of conduct by
Devries, in the space of the first few hours of the first day (2 December 2008)
had in prejudicing the Trial Judge against me. Not only was I not expecting or
prepared to go to trial (I wanted a proper trial date, after discovery, after
interrogatories, after applciation for empanneling a jury and after pleadings had
been finalised) and yet here I was having to cross-examine a malicious expert
witness David List and prove what I and everyone who has ever known me
has always taken for granted (that I''m a very intelligent, very educated, very
sane, very caring and compasionate man) in order to wind back my right to
defend myself against these fraudulent claims.

The prejudicial effect of this gross misconduct by Devries, this unlawful

application, this nasty injustice game, cannot be understated. It is plainly
readable, dripping from every paragraph of the transcripts (including Justice
Kaye's over the top interruptions and voice controls – like a dog trainer, with
me Chihuahua) and every paragraph of his published 'reasons'.

MELBOURNE FRAUD AND CORRUPTION TRIAL Page 11

 Every single one of these features (except in isolation the lighter weight, tenth ground) is sufficient grounds in its
own right for my appeal (fragment 3731 of 2009) to succeed on all points in the Court of Appeal. Let alone the
combined force of ten of them. Indeed, in AON v ANU senior counsel for AON (no other than Mr JJ Gleeson, who
appears in these proceedings for Dr List) asserted to the Full High Court that AON's case was a landmark case.
And AON rested solely on Ground 3. That is, according to longstanding High Court precedent (Johnson v
Johnson (Ground 5 and Ground 8); Brigginshaw v Brigginshaw (Grounds 8 and 9); Baumgarter v
Baumgartner (Ground 7) and recent High Court precedent AON v ANU (Ground 3 and probably Ground 5).
Grounds 1 and 2 are so fundamental (like all of Grounds 1 to 7) that they really require no specific reference to
precedent – they are indispensible and non-disposable features of every “fair hearing”, human rights recognised
not only by the Victorian Parliament's Charter of Human Rights and Responsibilities Act but by the common
law also (see for example Chief Justice Warren's reasons handed down in Re Major Crimes (Investigative
Powers) Act confirming the common law too recognises the defendants right to a “fair trial”.

I have ruled the line arbitrarily at 10 Top Reasons. There were other unlawful features of the “trial” before Justice
Kaye.’ [For good measure I then listed, schedule 2 of my submissions of 10 October 2009 another 10
grounds why the “trial” before Justice Kaye was (in Bob Dylan’s words, a “pig-circus” and in the words
of Their Three Honours in Rees v Bailey Aluminium Products a “fiasco”.]
40. The second through to seventh defendants should be permanently laughed out of Court (and into the cells)
for their fiasco before, during and since their performance in Justice Kaye’s Courtroom.
41. As I said in paragraph 12 of my covering letter of submissions of last week (10 October 2009):

‘12. These filthy little family lawyers have obviously filled their pockets on the wealth of many a broken family
tragically left “up the creek” in family court proceedings. But what on earth possessed them in their stupidity,
incompetence and arrogance to spec $400,000 of time and energy to bankroll this latest round of blackmail from
an obviously mentally ill fraudulent, compulsive liar - putting through the mangle a man who is a top-tier
commercial and government lawyer of 19 years goodstanding (with a list of professional achievements and
capacities that these dumb fools can only delude themselves as thinking they might achieve and capace also).
Spare a thought for poor Ms Cressy [my fraudulent accuser] … now to be done over by these fucked up family
lawyers pretending to be “her” lawyers when they are just using her to get at the fruits of my lifetime of very hard
work and achievement.’

Unfinished Masters Court business

42. I note that I owe Associate Justice Daly some written submissions that the Legal Services Commissioner's
office owes I am “obliged” to provide to Her Honour regarding the misconduct of Mr Other, Mr Over and Mr
Gleeson in the proceedings before Her. I shall endeavour to provide these by separate facsimiles in the

MELBOURNE FRAUD AND CORRUPTION TRIAL Page 12

 next day or so, hoping that once again, other aspects of the case do not have to take precedence – as they
did last week.
43. I am also cataloguing my list of submissions in these proceedings (quite a daunting list, not surprising in the
circumstances). I shall endeavour to circulate this list to Your Honours and all above mentioned recipients in
the next day or so too. [Again, these are statements of best endeavours, not a firm undertaking.]
44. Yes, I’ve written a lot. But my keyboard is still only warming up. And when you are up against:
• a vexatious crew of corrupt family lawyers
• who are funded by a multi-million dollar statutory oligarch (the Legal Practitioners Liability (Evasion)
Committee)
• that is willing to spend (so far) in the order of a million dollars out of the Government purse on 4 city law
firms and 4 city barristers,
• desperate to cover up the (criminal) misconduct of these rogue barristers and solicitors,
• including to bring these vexatious, abusive and oppressive applications in the wrong (Court) place and at
the wrong time,

well, who can blame me, the guy that they have financially ruined and emotionally terrorised, from doing and
writing all that I lawfully can to the best of my abilities to set the record straight?

Kind regards from your most patient and optimistic of social and law reformers.

JAMES JOHNSON

MELBOURNE FRAUD AND CORRUPTION TRIAL Page 13

 SCHEDULE 1

OBSERVATIONS OF JUSTICE KIRBY AS TO IMPROPRIETY OF PREMATURE

'NO CASE TO ANSWER' APPLICATIONS [FROM D'ORTA-EKENAIKE v VICTORIA LEGAL AID and ANOR]
(paragraphs 225 to 240 of Judgement, with endnote references recorded but details omitted)

225. “... immunities from suit are rightly regarded in Australia as exceptional. Normally, the law of
Australia, which the Constitution upholds, demands that all persons should be equal before the courts in
rights and liabilities. Derogations from that rule need clear and convincing authority. Quelling
controversies is indeed an important purpose of the Judicature established by the Constitution[301].
However, normally, "controversies" are "quelled" justly and by the application of law. If negligence can be
proved, the controversy presented by such a claim is quelled by holding those negligent, who owed a duty
of care and caused damage, liable for the result. It is not "quelled" by shutting the door of the courts to
those who are damaged in that way.

226. Approach to the application: During argument, a question arose concerning the approach that it was
proper to take to the claim by VLA and the barrister for peremptory relief against the applicant's
proceedings. For the barrister, it was said that this Court's authority supported the proposition that the court,
before which such relief was sought, looked with strictness at the pleadings propounded. It judged the
motion for summary dismissal, or a permanent stay, by measuring the pleadings strictly according to their
terms against the applicable legal standard.

227. Such an approach may be correct where the law in question is clear and settled[302]. However, the
function of a court, asked to give peremptory relief that stops proceedings in their tracks, is not a mechanical
one[303]. To prevent a party with an apparently serious claim from having a trial of that claim on its merits
must not become an occasion to inflict injustice or prematurely to close the court's doors in that party's face.

228. Summary relief terminating an action, or ordering that it be permanently stayed, is only available where
there is "no risk of injustice to the plaintiffs". Such orders are provided "only in plain and obvious cases".
Otherwise, as Sir Thomas Bingham MR said in E (A Minor) v Dorset County Council[304], "where the legal
viability of a cause of action is unclear (perhaps because the law is in a state of transition), or in any way
sensitive to the facts, an order to strike out should not be made". In Woolcock Street Investments Pty Ltd v
CDG Pty Ltd[305], I explained why the approach to such cases is one of restraint:

"Only in a clear case will answers be given, and orders made, that have the effect of denying
a party its ordinary civil right to a trial. This is especially so where, as in many actions for
negligence, the factual details may help to throw light on the existence of a legal cause of
action - specifically a duty of care owed by the defendant to the plaintiff."

229.Unfortunately, it has been a feature of many of the cases concerned with the existence, and scope, of the
duty of care owed by lawyers to their clients (and of the immunity from suit claimed by such lawyers) that
courts, determining the matter, have had to do so in proceedings such as the present. The issue has been
disjoined from the evidence. Questions of law have been isolated[306]. Or the matter has been determined on
pleadings without the benefit of a full consideration of the facts and findings based on a thorough
appreciation of the evidence.

MELBOURNE FRAUD AND CORRUPTION TRIAL Page 14

 230. Where parties seek peremptory relief, as VLA and the barrister did in these proceedings, they cannot
complain if an appellate court tests the provision of such relief against the plaintiff's case, viewed at its
highest. Doing so is only fair. If a party is to be denied a trial on the merits, which is ordinarily any person's
right, this should only happen where the facts and law combine to make the case a clear one, demanding that
result and none other.

231. The applicant's case at its highest: As it happens, in the present case a public record of earlier
proceedings involving the applicant is available. Without objection, parts of the record of the earlier criminal
proceedings were received by this Court. In the way the proceedings unfolded, involving the applicant in
two trials for rape, it became necessary, in the second trial, for the applicant to establish the basis upon
which it would be unjust to permit the prosecution to prove that he had pleaded guilty to rape at his
committal. Obviously, proof of that fact before the jury in the second trial would harm the applicant's
defence. That is why he sought to exclude the evidence of his original plea.

232. The issue was decided in the second trial in the County Court of Victoria on a voir dire conducted by
Judge Duckett. In the course of his ruling, explaining the reasons why evidence of the plea should be
excluded, the judge recounted evidence that had been adduced before him, which he accepted[307].

233. The applicant gave evidence before Judge Duckett. He deposed to the circumstances of the plea. He
said that, on six occasions, he had given a private solicitor, whom he initially retained, consistent
instructions that he proposed to plead not guilty. The judge accepted that he had given the same instructions
to the VLA solicitor when she took over responsibility for his defence. Her instructions to counsel at the
time stated that "the accused is adamant"[308] that he is not guilty. However, the barrister expressed "a firm
view" that the applicant had "no defence to this charge"[309]. The applicant was not comfortable with that
advice.

234. At first, it appeared that the applicant's defence would be reserved to the trial, as was his right.
However, on the day of the committal hearing, in an interview room at the Melbourne Magistrates' Court, a
conference took place between the barrister, the VLA solicitor and the applicant. Judge Duckett
explained[310]:

"I was told that counsel said strongly that there was no defence to the charge and the accused
said a number of times that he was not guilty.

His Legal Aid solicitor said in evidence that she pressured him to plead guilty because, as
she saw it, he would then get the reward of a shorter term of imprisonment or a benefit in
terms of sentence as a result of such an early plea. She said that she was instrumental in the
accused's failure to reserve his plea at committal.

I also note that, whilst this conference was being held at the court, the prosecuting authorities
interrupted twice ... to try to get an early decision from the defence. It does appear that this
was a highly charged situation in which the accused was asked to give his instructions."

235. The judge proceeded to describe the factual conflict concerning the existence or absence of consent on
the part of the complainant, and the existence or absence of a belief on the part of the applicant that the
complainant was consenting to sexual intercourse with him. The applicant believed that there had been
consent to sexual intercourse with him, and that that was a reasonable belief "because of a measure of
foreplay that took place between them before penetration"[311]. Judge Duckett went on[312]:

MELBOURNE FRAUD AND CORRUPTION TRIAL Page 15

 "For counsel to say in these circumstances that there is no defence to this charge is patently
not correct, and I assume that what counsel intended to say was that the defence that was
open to the accused was a defence that will be difficult to establish."

236. During the discussions with the barrister and the VLA solicitor, the applicant telephoned his former
private solicitor to seek her advice. Understandably, according to the judge, as she was no longer involved in
the matter, she was unable to help him. Also understandably, the applicant was affected by what the VLA
solicitor and the barrister told him before his plea was taken. Judge Duckett concluded[313]:

"I am satisfied that the plea that was entered was as a result of considerable pressure applied
by the accused's previous legal advisers and that it could well have been given in the
mistaken belief that the accused had no defence in law to the charge of rape. In those
circumstances ... I rule that the evidence is not admissible."

237. Following the exclusion of the evidence of the plea of guilty to rape, the applicant was acquitted of the
charge at his second trial. He then brought the present proceedings asserting negligence on the part of the
solicitor and the barrister in telling him that he had no defence to the charge; in suggesting that he would
receive a suspended sentence on a guilty plea entered at the committal; in telling him that he would receive a
custodial penalty if he pleaded not guilty and was found guilty; and in failing to explain, adequately or at all,
the risks involved in entering a guilty plea at committal, in the event that he later sought to change that plea
and to restore the plea of not guilty that he had earlier asserted.

238. Again, in fairness to the barrister and the solicitor, it is important to point out that the abbreviated
proceedings on the voir dire would not necessarily reflect what would emerge in a full trial of a negligence
claim. However, two of the three parties (the applicant and the solicitor, but not the barrister) gave evidence
before Judge Duckett. The issues sufficiently overlap to make the observations of the judge on the voir dire
of relevance, certainly to understanding the applicant's claim against VLA in respect of the solicitor's alleged
conduct. Attaching evidentiary flesh to the bare bones of the pleadings (foreclosed, so far, by the summary
relief granted below) presents starkly the issue that now falls for decision.

239. That issue is stated by Deane J, in general terms, in his dissenting reasons in Giannarelli[314]. Is a legal
practitioner immune from all redress for negligence "however gross and callous in its nature or devastating
in its consequences"[315] simply because the practitioner is a professional person admitted as a barrister or
solicitor who has performed functions in, or closely connected with, court proceedings? Is that person, as
such, absolutely immune from suit although negligence can clearly be proved, wrong or inadequate
professional advice established, and although it is shown (as was alleged in this case) that considerable
pressure was applied to have the client accept that negligent advice?

240. Presented in this way, the issues in the present application transcend any negligent acts and omissions
of the barrister and the solicitor in this case, assuming that they could be proved. What is involved is a
wholly exceptional exemption from the ordinary liability that other professional and non-professional
persons face before the courts of Australia for conduct arguably much less blameworthy, in circumstances of
equivalent care and attention, involving errors seemingly less culpable and perilous, if the complaints are
believed[316].

...”

MELBOURNE FRAUD AND CORRUPTION TRIAL Page 16

 SCHEDULE 2

PRELIMINARY OBSERVATIONS RECORDING THAT

THE FAMILY COURT AND THE FAMILY LAW ACT ARE UNCONSTITUTIONAL
(BOTH UNLAWFUL FOR VIOLATING CHAPTER III OF THE AUSTRALIAN CONSTITUTION)

Has Australia's Family Court been making custody orders illegally since
2006?

1. I am seeking to have the orders made by Federal Magistrate Daniel O'Dwyer during federal magistrates
court proceedings 10307/2007 set aside on grounds that, inter alia the radical amendments to the
Family Law Act in 2006 by the Howard Government were unconstitutional.

The Case

2. The circumstances of this case are especially tragic. It started with an application by a man for custody
rights in respect of his alleged love child, the third of three children born to a woman whom the man
dated for only a year or so. They stopped dating shortly after the child was conceived, which was 7
years before the court case began. This case was quite unusual because the mother and the alleged
father were never a married or de facto couple.

3. The woman always asserted that the man was the biological father of her youngest child. The man
always took those assertions at face value. Over the years he provided substantial financial support to
her and her family as well as being a strong father figure for all three of her children. The woman even
raised her second son to believe that the man was his biological father.

4. The man brought the custody application in September 2007 out of concern for the welfare of his
alleged daughter and her two half-brothers who were being neglected and abused by their mother. He
was concerned by increasingly unstable and violent nature of their mother. The woman vanished with
the children shortly after father's day. The children had had no contact with him or with their school for
several weeks. The woman's behaviour deteriorated further during the early stages of the legal
proceedings. She admitted to physically attacking her children and causing substantial damage to her
home. This happened a few days after the first family court hearing. On that occasion, the domestic
violence only stopped after an elderly neighbour answered her children's pleas for help. The woman
was taken into police custody and sent to a nearby psychiatric hospital for assessment.

MELBOURNE FRAUD AND CORRUPTION TRIAL Page 17

 5. The woman also admitted to burgling the man's home six weeks later and confessed a whole range of
criminal and disturbing behaviours to a psychologist and a psychiatrist. Only half of the stolen
documents, including important evidence, were recovered by the police. During the course of the family
court proceedings the woman and her family lawyers made all sorts of malicious and false allegations
against the man, while at the same time seeking to conceal and to understate the woman's own
criminal activities and her neglect and abuse of her children.

6. In September 2008 and February 2009 the Federal Magistrate made family law orders banning the man
from all contact with his alleged daughter. The orders were made in the man's absence. He had
already walked away from his application, distressed at the incompetence, bias and hypocrisy of what
was supposed to be a court of law.

7. By September 2008, and despite court orders supposedly giving him overnight contact with all three
children (according to their wishes) the man had not had any contact with any of the children for several
months. The hypocrisy in the orders and that so-called hearing is that the man had been forced to
break off contact with his 8 year old alleged daughter in May 2008 to protect her from serious domestic
violence she was subjected to in her mothers home. The girl was being regularly beaten and
threatened at home and at school by her 10 year old half brother. The 10 year old boy was out of
control. He was making death threats against his 8 year old half-sister - even when adults were
around.

8. The boy was upset that their mother was refusing to comply with court orders granting him time with his
'dad'. The family law judge, a Federal Magistrate Daniel O'Dwyer, refused to hear the man's application
seeking the court's assistance to require the woman to comply with the court orders, even with the
school headmaster and the elderly neighbour at court wanting to testify as to the violence the little girl
was suffering in order to still have contact with her dad, the benefits of time with her dad and the risks
associated with her mother's violent home and lifestyle.

9. I've heard dozens of similar stories over the past year. It is heart breaking once you pierce the veil of
secrecy surrounding the family court's proceedings and find out what really goes on. I wish I had the
resources to send a human rights watch monitor into every family court in the country, every day, to
monitor and report these abuses of childrens, and adults basic human rights.

The Appeal

MELBOURNE FRAUD AND CORRUPTION TRIAL Page 18

 10. There are a number of “conventional” grounds of appeal. The appeal should be successful even
without taking into account the burning constitutional law issues.

11. The grounds of appeal are numerous. They include arguments that the family law judge, Federal
Magistrate O'Dwyer lacked jurisdiction to hear the application because of its complexity; that Federal
Magistrate O'Dwyer should have disqualified himself from hearing the application on grounds of bias
(his refusal to enforce custody orders the previous May); that the orders Federal Magistrate O'Dwyer
made were riddled with actual bias; and that the orders were unlawful and possibly contemptuous of
parliament and even his own Court because they were inconsistent with express provisions of the
Family Law Act to the contrary. The judge made orders purporting to restrain the man (but not the
woman or her lawyers) from using evidence and documents from the family law proceedings in other
proceedings between them in the Supreme Court. Section 121 of the Family Law Act expressly clarifies
that this is a proper and lawful use of evidence and documents.

The Constitution

12. But the more interesting ground of appeal is the argument that the Family Law Act and the kind of
Family Law court it created are both invalid because they are not authorised under Chapter III of the
Australian Constitution.

13. The argument can be simply stated. The scheme of the Australian Constitution is that the functions of
government are separated into three categories. We have the parliament whom we democratically
elect to to make legislation and to govern the second branch of Government. This is the executive,
which all of the public service, the Government departments and statutory authorities through which our
parliamentary elected representatives govern us. Then, separate from the parliament and the
executive bureaucracy, we have the the courts, which are the third, judicial arm of government.

14. Chapter III of the Australian constitution empowers the federal parliament to create federal courts, such
as the High Court, and the power to create courts like the Federal Court and the Family Court. But the
Federal parliament can only make legislation that gives its Federal courts judicial functions and powers.
The Australian Constitution does not authorise the Federal parliament to establish a tribunal which at
once performs functions of a court of law and functions of an arm of executive government.
Constitutional lawyers and historians call this the doctrine of 'separation of powers'.

MELBOURNE FRAUD AND CORRUPTION TRIAL Page 19

 15. Calling a tribunal a court and heading it up with a team of judges is not enough to make the tribunal
constitutional. It all depends on what powers the body exercises and how it functions. For example,
over the past century the High Court has held as unconstitutional all sorts of bodies the federal
parliament tried to create that were a mixture of executive and judicial functions.

16. For example, in 1915 an ill-fated Commonwealth Inter-State Commission was held to be
unconstitutional. The elected government of the day's sin was that it had created a statutory body with
a prohibited mix of executive functions of making and implementing and policing laws regulating
interstate trade, and the judicial function of trying cases (as a court) where persons breached those
laws. The High Court has also struck down as invalid several federal Government attempts to create a
federal Court of Conciliation and Arbitration.

17. Australians, Burmese and Chileans are the only people on earth that are not protected by a national bill
of rights. This separation of powers is one of the very few constitutional guarantees Australians enjoy
under our federal Constitution. It means that the commonwealth government can't, for example, create
a tribunal or court where the judge is also the prosecutor – or where police investigate and judge their
own cases. Courts do not investigate or prosecute breaches of the law. They have no such active
duty. If they did, then the courts' essential feature as an impartial tribunal would be gone. And it is this
impartiality, this detachment from the parties arguing before the court, that is the whole purpose of this
constitutional separation of judicial powers from executive, investigatory Government powers.

The Family Court

18. “When you look at the way that the family court has been operating since 2006, it is impossible to resist
the temptation to say that the family court has been operating unlawful because it violates this
impartiality, it violates this constitutional guarantee of separation of powers.

19. A true court, within the meaning of Chapter III of the Constitution is a place where two or more parties
meet to resolve a problem. There is either a prosecutor and a defendant or a plaintiff and a defendant.
They meet before one or more impartial and independent judges. The parties present legal arguments
and the evidence that they have gathered. Each side questions the other sides arguments and
evidence. Ideally, the parties present, question and argue their cases with an “equality of arms”, that is,
with equal amounts of time and money to devote to their cases. But everybody knows that “equality of
arms” is a myth these days. Importantly, the judge does not get involved in presenting or cross
examining the parties cases. The judge does not get involved in the gathering of evidence either. The

MELBOURNE FRAUD AND CORRUPTION TRIAL Page 20

 judge ensures that both sides play fairly according to the rules for presenting and questioning each
other's cases. Otherwise the judge does not tell the parties how to gather or present their evidence.
Nor does the judge gather evidence or make his own investigations of the parties' cases.

20. But family law proceedings do not work like a true court at all. The first thing that happens in
proceedings under the Family Law Act is that the judge engages a solicitor. Effectively the judge
becomes a third party in the proceedings which he is judging. The judge, and his own entourage of
lawyers and experts become a major (perhaps exclusive) force in the investigation, gathering and
presenting of the evidence which he is supposed to independently judge.

21. Prior to 2006, the family court judge had the power in appropriate cases to order that a child's
representative, a lawyer, be appointed to represent the interests of a child or children. A bit like a
litigation guardian (but a lawyer also) this enabled the children to be represented as a third party in
custody proceedings. Nothing in this procedure undermined the judge's impartiality or offended
Chapter III of the Constitution.

22. But in 2006 these laws were radically changed. Instead of a 'child's representative', the judge almost
as a matter of routine appoints an “independent children's lawyer” to take part in the proceedings.
Significantly, the Act says that the “independent childrens lawyer”, despite the misleading title, 'is not the
child's legal representative and is not obliged to act on the child's instructions.'

23. The so-called “independent children's lawyer” is according to the legislation and according to the new
Court practice, a lawyer working for the judge. He is not the children's lawyer and it is even unclear
now whether the children have any capacity to be represented in family court proceedings either by a
lawyer or a litigation guardian.

24. The engagement of an “independent children's lawyer” under the new Court procedures damages the
impartiality of the judge, and puts the family court in violation of Chapter III of the Constitution. The
judge directs his lawyer in the proceeding to commission expert evidence. This takes the form a
psychologist report. The judge and his entourage of lawyers actively begin investigations and the
collection of interest. This results in all sorts of human rights violations. The parents are compelled,
often against their wishes, to participate in this process. The investigators, beginning usually with a
psychologist appointed by the judge's lawyer, gets all muddled up because he is hearing different
stories from the two parents who are at loggerheads. His report is prepared and produced and looks
nothing like what the parties themselves would independently prepare. For starters the one 'expert'

MELBOURNE FRAUD AND CORRUPTION TRIAL Page 21

 psychologist interviews both parties. This happens in an emotionally charged situation where parents
are unable to agree themselves on sensible custody arrangements, because one or both of them are
unable to put the children's needs first. The judge's psychologist's report then becomes a platform
where one or both parties (putting their own goals ahead of their children's best needs) can then
manipulate the psychologist's report to produce false evidence that, if the manipulation is successful
would support their case.

25. Basically, because the judge is under enormous workload and lacking time and resources, the judge
then goes on to more or less adopt findings of fact made by the psychologist or other experts,
notwithstanding that those findings have not been prepared or contested or evaluated in a proper court
process. The psychologist is not a judge, and has no legal training or comprehension of proper court
rules and procedures for the delivery and assessment of evidence. But a whole lot of the functions of
the judge are effectively passed down to the “independent childrens lawyer” and the psychologist,
notwithstanding the non-judicial (and unconstitutional) nature of those investigations and the
psychologist's reported findings. No wonder the judges are criticised for making bad decisions, bad
orders made on the back of a bad and unlawful and inadequate investigation of the facts.

26. The family law courts are a six billion dollar per annum industry for family law lawyers and a coterie of
psychologists and psychiatrists that thrive on the production and promotion of such false allegations,
through so-called 'experts reports' by psychologists engaged by the judge as part of the judge run, but
out-of-court, investigatory process.

27. Overnight, men who have demonstrated themselves to be caring and devoted parents, men of
unimpeachable reputation and dignity, find themselves being falsely accused of all sorts of drunkenness
and violence and even paedophilia and sodomy. On top of the financial and emotional trauma of the
custody dispute, there is usually the financial and emotional trauma of an angry relationship breakdown
and a vicious property dispute. And these men find not only that they have no recourse against these
allegations, which then spill over from the custody dispute and are then used against them in the
vicious property dispute too.

28. These lies are wrongly given a patina of credibility when peddled through the format of report by a
psychologist who is engaged by the judge and in practice answerable to nobody. Neither party has any
control over the evidence produced this way. As opposed to a 'real court' where each party
independently commissions and pays for and presents its own evidence. A 'real court' process of the
parties controlling their own experts lends an important degree of quality control over the process. The

MELBOURNE FRAUD AND CORRUPTION TRIAL Page 22

 judge appointed psychologist is a regular player in this forum and the indignity for the (usually) male
victim is that the judge orders him to pay the psychologist. Sometimes the judge will require several
psychologist reports and/or several psychiatric reports. And all the man can do then if he can afford it is
to separately commission other psychiatrists and psychologists, again at mounting expense, to
counteract the damage caused by the expert report directly ordered by the judge. Any man who has
survived the financial and emotional trauma of the (usually, but not always) relationship breakdown plus
the custody battle then has to endure all of these mounting legal bills and experts costs. It is not
unusual for a man to spend $1 million (if he has it) seeking joint custody orders, spending even ten
years in court and going for periods of two years or so with no contact whatsoever with his children.
Just imagine how traumatic it would be for any parent, regardless of gender, to have the government
separate them from their children like this.

29. These outcomes demonstrate that the workings of the family court since 2006 have almost certainly
been unlawful, as a matter of constitutional law. In custody proceedings these days the judge is acting
as both the judge and (via his “independent childrens lawyer”) as the primary investigator, collector and
presenter of evidence often of dubious quality and often forced against the wishes of the true parties to
the proceedings. These double functions clearly violate the 'separation of powers' doctrine on which
our Constitution is based. The family court has since 2006 been a more horrendous and
unconstitutional mistake of mixed investigative and judicial functions than any of the other bodies that
the High Court has struck down over the past century. It also demonstrates the wisdom of our
constitutional forefathers in insisting on the separation of judicial functions from other functions of
Government.

30. Why has nobody ever challenged the Family Law Act on constitutional grounds? Prior to 2006 the
Family Court operated as a “true court” of the kind contemplated by Chapter III of the Constitution.
Ever since the 2006 amendments to the Act took effect, it has been open to any litigant affected by the
exercise by the Family Court of any powers under the Act to attack the constitutional validity of the
Court and the Act. No such attack has been made to the High Court and it is perhaps not hard to
understand why. Those who might make such an attack are family men. Usually these men are barely
surviving under circumstances of extreme financial and emotional distress. If they can afford a lawyer
at all, the sorts of lawyers who practice in family law are not the sorts of lawyers who excel at law,
especially the more serious areas of law such as constitutional law. They are unlikely to think deeply
enough to consider whether the Family Law Act has constitutional validity. And even if they thought
about it long enough, they are not likely to run an argument that, if successful, might lead to the
collapse from within of their primary (and often exclusive) source of income. The litigants are unlikely to

MELBOURNE FRAUD AND CORRUPTION TRIAL Page 23

 have the resources or initiative to seek out the advice of a constitutional lawyer who would look at the
court and the legislation this way.

31. My own involvement in family court proceedings, with my background in corporate, governmental,
constitutional and human rights laws came about following a series of extraordinarily improbable
circumstances.

32. Every family that spends any time in family court proceedings suffers an extraordinary financial and
emotional trauma on top of whatever precipitated the relationship breakdown to the extent that the
parties cannot themselves maturely sort our their custodial and property affairs. Often financial
problems trigger these breakdowns. Sometimes there are emotional or mental health issues too.
According to the Australian Government's own statistics 2 Australian father's commit suicide every week
due to family court associated trauma. Many welfare organisations say that the true figure is closer to
20 Australian dad's in distress committing suicide every week. The social and economic multiplier
effects of these unnecessary deaths are imaginable. Links between 'absent' (or suicide) dads and
depressed, angry, suicidal and economically disadvantaged youths and childhoods are clearly
documented. The Government should be assisting these families, including these men. The
Government should be making sure that its relevant departments, statutory authorities and institutions
like the family court assist men, women and children through their family relationship crisis, not be
contributing to their misery by separating parents from their children.

The Implications

33. If the Family Law Act and the Family Court are held to have been operating unconstitutional since 2006
the federal government would not be able to easily fix the problem. “An immediate solution would be to
repeal the offending provisions. Nothing that the Family Court has done prior to 2006 would be
affected by the ruling, and repealing the offending provisions would re-constitute the family court as a
“true court” again so far as new cases are concerned. The difficult ones to fix are the cases that were
decided between 2006 and the repeal of the “independent childrens lawyer” machinery provisions.

34. A new Family Law Act would need to comply with Chapter III of the Constitution. Otherwise it too would
be invalid. To change the Constitution would require a federal referendum. Most if not all orders and
rulings made by the (current) Family Court since 2006 up until now would be null and void. That may
pave the way for children and adults affected by those rulings to beginning seeking compensation
claims, possibly against the Government or possibly against their lawyers.

MELBOURNE FRAUD AND CORRUPTION TRIAL Page 24

 35. The Family Courts are amongst the busiest in the country, processing thousands of familys every week.
A successful constitutional challenge could have an enormous impact on tens of thousands of
Australian's lives. Despite the compelling legal logic supporting the challenge, there will be
considerable political pressure from the Government and legal professional bodies to avoid that
outcome.

36. The Family law system has been plagued right from the outset with substantial problems and attracted
substantial criticism. It may not be the worst thing that could happen if a successful constitutional
challenge to the current system that forces the federal and State Governments to come together, to re-
think and to put in place a system that is designed to meet the needs of Australian children and
empowers parents wherever possible to simply to be parents, rather than gratuitously demonising them
as the current system does.

37. The current system seems to do little more than produce all sorts of the worst sorts of malicious
defamations and lies, to separate children from their dads, in order to produce a $6 billion per annum
feeding frenzy for family lawyers and a coterie of so-called mental health professionals, through
shamefully warped proceedings that are a mockery of the 'real courts' that we are supposedly
guaranteed under Chapter III of our federal Constitution.

MELBOURNE FRAUD AND CORRUPTION TRIAL Page 25

 SCHEDULE 3

COPY 19 OCTOBER 2009 HERALD SUN NEWSPAPER REPORT

REGARDING GARY REES v BAILEY ALUMINIUM PRODUCTS PTY LTD (NO. 7149 of 2002)
(COURT OF APPEAL DECISIONS ASHLEY AND REDLICH AJJ AND COGHLAN AJA,
HEARING 13 and 14 MARCH 2008, DECISIONS 5 DECEMBER 2008 and 14 MAY 2009)

See attached

MELBOURNE FRAUD AND CORRUPTION TRIAL Page 26

 SCHEDULE 4

EXTRACT FROM PROFESSOR GERARD DAL PONT'S LEGAL TREATISE

'THE LAW OF COSTS' (4th edition)
ON RECOVERY OF COSTS BY SELF-REPRESENTED
SOLICITOR-LITIGANTS

See attached

MELBOURNE FRAUD AND CORRUPTION TRIAL Page 27