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MR DEVRIES: That matter's are still preceding Your Honour.
HIS HONOUR: Yes, thanks Mr Devries.
MR DEVRIES: Your Honour given that we've started early it may
be that Mr Johnson may turn up at ten thirty although the
signs on Friday would suggest otherwise.
HIS HONOUR: Yes, you think it's more prudent that I wait, I
notice that I have come in a bit quick off the mark.
MR DEVRIES: I think there's a difference between the clock on
the other side of that door and the clock on this side of
the door Your Honour.
HIS HONOUR: Yes.
MR DEVRIES: You've caught us out a couple of times.
HIS HONOUR: Yes, I'm sorry about that. Well what I think I'll
do is discretion is the better part of valour, I'll set
my clock by the court clock and I'll just go outside for
two minutes. I think it is better that we don't commence
until ten thirty, at the listed time.
MR DEVRIES: I think in view of the particular circumstance and
perhaps if that stage if he's not here if he could be
called.
HIS HONOUR: If Mr Richards could call him I'll do that.
Thanks Mr Devries, I guess (indistinct).
MR DEVRIES: Sorry about this Your Honour.
HIS HONOUR: No, that's a good idea.
(Short adjournment.)
MR DEVRIES: Perhaps if Mr Johnson was to be called,
Your Honour.
HIS HONOUR: Yes, Mr Richards would you mind? Thanks. No
appearance, Mr Richards? Thank you. Now, for the
purposes of the transcript I record that Mr Johnson is
not in court. Mr Richards, my associate, has three times
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called his full name out in the corridor and aloud the
voice of Mr Richards and Mr Johnson has still not
appeared. Now, I should say, Mr Devries, that my
tipstaff has made me aware of some SMS messages received
from Mr Johnson out of court and perhaps I'll read them
into the transcript. You may be seated if you like.
He received one at 16.53 on Friday the 13th,
"Dear Mr Richards, please inform His Honour that I had
hoped to close my case just before or just after lunch so
that Mr Devries might finish today. (2) That I was
taught well-done is timely done and never to compromise
on quality to save time; rushing is a malaise of the
middling sorts. Please acknowledge this message. Best
weekend wishes. James Johnson." and at 16.55 Mr Richards
replied with a receipt acknowledged. In response,
Mr Richards received another SMS at 5.02 p.m. "Thanks
Steve, you're a good man. Cheers. If or when His Honour
requires me again, would you text or call me. Last week
Thursday was too close. A really needed miss for this
heavily attacked man. Please acknowledge. Cheers,
James." Then at 5.15 Mr Johnson sent to my tipstaff a
further message, "Steve, please apologise to Amanda on
Monday for me because she has to assist His Honour to
completely rewrite his draft judgment in this case.
Cheers. James Johnson."
I should say that I regard all three SMS messages
as grossly improper. Mr Johnson is a solicitor of 20
years standing. He knows it is quite inappropriate for
any party to communicate in those terms to a member of the
staff of a Judge outside court, or indeed even inside
court. Whatever was sought to be conveyed by those
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messages, I entirely ignore.
MR DEVRIES: If Your Honour pleases.
HIS HONOUR: I thought it's best to place them on the
transcript Mr Devries and also to record the fact that I
entirely disapprove of Mr Johnson's conduct in doing what
he did.
MR DEVRIES: If Your Honour pleases. Your Honour, I wish to
draw your attention to a couple of what I believe are
errors in the transcript of Friday.
HIS HONOUR: Yes.
MR DEVRIES: I say this with respect to the transcript writers.
They've had a very difficult job and whilst there's some
other possible mistakes that might have crept into the
transcript, they're probably self-evident. But, given
what's going to happen with what I suspect is going to
happen with this transcript, perhaps a couple of matters
should corrected, Your Honour. One of them is against my
personal interest but the first one, Your Honour, is on
p.1603 at Line 5.
HIS HONOUR: Yes.
MR DEVRIES: That was actually Mr Johnson who said, "I would
not have given that evidence because I did not sign it."
HIS HONOUR: Yes, thank you.
MR DEVRIES: I'll be coming back to that a bit later on as one
of the - - -
HIS HONOUR: So, if the speaker at Line 5, p.1603 of the
transcript could be amended by deleting Mr Devries and
substituting therefore Mr Johnson. Yes.
MR DEVRIES: I'll be coming back to that later on as one of the
many misrepresentations given or made by Mr Johnson
deliberately in his address.
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HIS HONOUR: What was he referring to there?
MR DEVRIES: Sorry?
HIS HONOUR: Ah, Yes, I follow, yes. That's exhibit - - -
MR DEVRIES: Exhibit J.
HIS HONOUR: Yes, Exhibit J.
MR DEVRIES: I'll take us to the transcript reference where he
gave evidence quite different to that.
HIS HONOUR: Yes.
MR DEVRIES: The other matter, Your Honour, is at p.1686,
Line 17. This is the comment that I quite inappropriately
and improperly made across the Bar table to Mr Johnson.
What I in fact said was or accused him was, state was,
"You stop because - - -
HIS HONOUR: Yes.
MR DEVRIES: - - - you stole them.
HIS HONOUR: Yes, so Line 17 should be, "You stole them."
MR DEVRIES: Or, "because you stole them."
HIS HONOUR: "Because you stole them." Yes, I recall that
interjection by you and certainly you would not have
spoken in the terms that's recorded in the transcript
either.
MR DEVRIES: What I said, I shouldn't have said anyway but I
certainly didn't say "the dingo".
HIS HONOUR: No, and I don't think you would have and the - and
I would not want to hear member of counsel referring to
such an illusion. Sixteen and so the transcript at
p.1686, Line 17 the words "the dingo" will be deleted
and the word will be substituted "Because you stole them."
Is that right?
MR DEVRIES: Yes, Your Honour.
HIS HONOUR: "Because you stole them." Thanks.
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I say again, Your Honour, that I acknowledge that it was
inappropriate and I apologise to this honourable court.
HIS HONOUR: I am sure you have and I accept your apology.
MR DEVRIES: Your Honour, on Friday I was listing Mr Johnson's
attributes, positive attributes.
HIS HONOUR: Yes.
MR DEVRIES: The major one that I omitted to state is that he
is constant - when he makes a point he is likely to
constantly reiterate that point. Both in that sense and
in the sense that when he took issue with Your Honour's
rulings he was constant in his attitude to Your Honour's
rulings and his actions in respect to those rulings.
In the context of my reliance on what Mr Johnson
submitting to Your Honour being deliberate and his
various actions and his evidence in this matter being
deliberate, I would also draw attention, Your Honour, to
Mr Johnson stressing to Your Honour his oath upon being
admitted to practice, as it was then called, as a
barrister and solicitor of this honourable court. He
referred to it on one occasion when he went back into the
witness box to continue to give evidence, and he also
referred to it on Friday in his submissions at p.1693
line 23 and 1694 line 12.
He would want Your Honour to believe that he treated
everything that he said from the Bar table as having the
quality of being truthful because he had given that oath,
and also in the context too that he had stressed that he
was a barrister and solicitor and had been for 19 years.
In a very back door method he tried twice to play the
card by denying that he was playing the card of
practitioner versus prostitute.
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I might say, Your Honour, in that context that on
the evidence that was before Your Honour he had
registered as a prostitute and one could use the line, I
have been dying to do this right through all of these
proceedings, in his case he is a solicitor or was a
solicitor in both senses of that term. But whilst I say
that a little bit in jest, the fact that he had
registered to work as a prostitute and held himself out
as a prostitute puts lie to the criticism that he makes
of my client in that occupation.
But there is a far more important aspect, that he
constantly complains about my client working more as a
prostitute for longer hours than he says that she held
out to him. And he says, both in his submissions and his
evidence, that her work as a prostitute extended right
from the beginning right through to the end, and whilst
he thought at some stages she might have taken a break
from that because of his activities, he would want Your
Honour to believe otherwise.
The other edge of that two edged sword is that if
she worked as a prostitute he was never suggesting she
did that as an amateur or for no pay. He himself has
given evidence of the sorts of moneys that she would earn
for each client, and therefore if she did that work, she
incurred that income and there is no evidence from him,
not even a suggestion from him, that she flushed that
money down the toilet or that it has disappeared
somewhere out of the relationship.
So insofar as she did work, this is further evidence
and corroboration I submit on behalf of the plaintiff
that she contributed to the relationship. Just whilst
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I'm on that part of his submissions, he repeatedly
submitted to Your Honour, both on Friday afternoon and at
other stages during the proceedings, that he could have
stood mute but he didn't and somehow he used that as an
argument to say that Your Honour effectively should treat
his submissions as a sort of no case submission.
But, Your Honour, ought to consider that my client
has the total onus of establishing her case and that he
could have stood mute and therefore Your Honour should
ignore anything that he said in terms of assessing my
client's credibility. But in my submission if he wanted
to run his no case submission he should have done that at
the close of my client's case. I make no bones, it would
have made her case a little bit more difficult because
most of the strength in her case, in my submission, came
from his evidence,
Not from her evidence his evidence in the context of her
evidence, not from her evidence alone. But he chose to
run a case and he chose to run some positive points so
therefore either the task is to, with respect, to measure
up the respect of credibility of the two parties as
witnesses and their other witnesses or it is if he's
going to make positive assertions he has certain onuses
once he raises those, such as she never lived with me,
she didn't do this, she did this. But I'll deal with
those in a more detailed fashion shortly.
HIS HONOUR: Well as I said to him on Friday, and in fact it
seemed to me his conduct during the trial satisfied me he
understood it, that whilst the legal onus lies on your
client on the issues of a relationship contribution and
the like, nonetheless there are evidentiary burdens which
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shift. as they do throughout a trial, particularly a
civil trial where a defendant does not have the benefit
of the presumption of innocence in a criminal trial. He
sought to import in his submission, some of the concepts
one more often hears put to a jury of 12. But he
understood fully the evidentiary onus and that's why he
entered the witness box.
MR DEVRIES: Yes, Your Honour. Your Honour, with respect, has
put that better than I have. But that's what I was
trying to put to Your Honour - - -
HIS HONOUR: And it really seems to me the real point.
Ultimately a client does, he's right, in this respect
your client bears the onus of satisfying me on the
balance of probabilities is the existence of the relevant
relationship and particularly the period of it and also
as to her contributions.
MR DEVRIES: I hope to address those shortly, Your Honour.
Your Honour, before I leave Mr Johnson's address and I do
say this in terms of that whilst he was treated in
these proceedings as a litigant in person, and I don't
say that with any measure of criticism at all - - -
HIS HONOUR: Yes.
MR DEVRIES: But with respect quite properly he was treated as
a litigant in person, I submit that he wasn't just a
litigant in person and he didn't want to be portrayed as
just a litigant in person, but he was a litigant in
person who had very significant legal qualifications and
experience and, as I said on Friday, significant
intelligence and perception, well perhaps intelligence,
I'll leave perception aside. And in that context is how
I submit Your Honour should treat some of the statements
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that he made in his address which were inaccurate.
The first one is with respect to Exhibit J which was
the letter signed by Sutton Johnson. It's a very short
letter, Your Honour.
HIS HONOUR: Yes, I'll just see if I've got a copy of it. I
think I have got that. Yes, I've got that, thanks.
MR DEVRIES: Yes. Now, in his address to Your Honour on
Friday, and that was at p.1602 of the transcript, he
denies that - - -
HIS HONOUR: Denies he signed it.
MR DEVRIES: Signed it.
HIS HONOUR: Now, my recollection is in his evidence he did and
that was my recollection when he was making the address
to me. But I couldn't find that part of the transcript.
MR DEVRIES: If I can assist Your Honour, p.738.
HIS HONOUR: Seven three eight.
MR DEVRIES: Starting at Line 20, Your Honour, "Is that your
signature over the name Andrew Hawking? It is, isn't
it". And he replied, "Yes, it is, Mr Devries". "And it
purports to say that you're employed by Sutton Lawyers as
senior legal counsel as of 30 November 2007 at an annual
salary of $300,000 doesn't it", and he replies, "It does,
Mr Devries". "It also purports to say that you've been
employed by Sutton Lawyers since a date in 1999, doesn't
it", he then gives a nonresponsive answer, the effect of
which is, "Yes, Sutton Lawyers and Sutton Johnson have
been one and the same for", and I interrupt, "No, no,
just answer my question", and he says, "Yes. What I'm
saying is correct, isn't it? Yes, that is correct". And
I put to him that it was not an accurate account of
affairs.
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And then at the bottom of p.739 Line 30 I put to
him, "That letter is a lie, isn't it", and he says,
"There are statements in the letter which stretch the
truth. They record the fact as they should have if and
when I was able to focus fully on my own earnings". And
I put to him, "There's nothing in that letter that's got
any accuracy at all, is there? You weren't earning
$300,000 per annum on 30 November 2007, were you? No, I
wasn't, Mr Devries. You weren't employed by Sutton
Lawyers because it was a pro bono firm at that stage,
wasn't it? Well it was simply" "It was simply" - I
think, "and the legal alternative" "It was simply in
the legal alternative it was me, it was one of my
business names, Mr Devries. It didn't employ you,
did it".
And he says not in a legal sense, no. And further
on in answer to a question from Your Honour, Line 23 "So
you could not have been employed at a firm then" and he
replies "Correct, correct in a legal sense that's right,
yes." And over the page Your Honour had asked him a
couple of questions about the purpose of the letter and
you put to him "It seems to me you stated Mr Johnson that
the contents of this letter are untrue, is that right?"
and he replied "The contents are what the lender wanted
to hear to provide loan approval".
That's important for a number of reasons Your
Honour, firstly it puts light to what he said in his
address to you, secondly it goes to his credit overall,
and if you read that consistently with the statements he
made about truth being like the tide, which I'll take
Your Honour to.
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HIS HONOUR: Yes. It has a curious resonance doesn't it?
MR DEVRIES: It does Your Honour and clearly in my submission
right throughout this matter, throughout his dealings
with his lenders, with regard to the bank, with regard to
the tax office and so on, his resonance has been
effectively, well I tell people what they need to hear to
meet my purpose and in my submission he's tried to do the
same thing in these proceedings. Your Honour while we're
on exhibits, at about the same time he submitted that
Exhibit L, which is one of the letters he wrote to
mortgagees, he portrayed the letter as saying one thing,
I'd submit Your Honour a fair reading of the letters they
say something quite different.
He says read that letter it corroborates my
assertion that "I was able to meet my debts as and when
they fell due". That's a self serving statement. The
letter's far more important for what he was trying to do
to thwart the plaintiff in her proceedings, and that is
that he was trying, quite blatantly as he says in that
letter, to minimise - to take actions which would
minimise the equity that would be available to her in the
event, which she thought was very unlikely, he says that
she would succeed in these proceedings.
He referred at around the same time to the report of
Ms Marion Love, or Marianne Love which is Exhibit 65 Your
Honour, and he tried to draw considerable comfort from
that report, it simply is to drawing on the sympathy
string before Your Honour, but the plaintiff takes
comfort from one line towards the bottom of p.4 of that
Exhibit.
HIS HONOUR: Yes, I don't think I've got a copy of it there.
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Just a minute I don't, if I could just go to 65 for a
minute.
MR DEVRIES: The beginning of the last paragraph on p.4 Your
Honour. "James described being in a nine year
intermittent relationship with Pippin", two lines - two
sentences - won't take it out of context, you reported
that it has been through and large by the need to rescue
Pippin and her two boys. Throughout the nine years they
had a daughter together Illyana. The reported break down
of this relationship concerns the well being of his
children and the consequent financial preference of
(indistinct) have all contributed to James' experience in
high stress levels.
Now to some extent those are accounts that he's
given of a situation with which the plaintiff would
differ but not withstanding that he says against interest
that there was a nine year relationship. The word
intermittent is used by her, throughout the nine years
they had a daughter together and the relationship broke
down. At various times through the course of these
proceedings Mr Johnson has tried to convince Your Honour
that there was no relationship or that it was a
relationship that was really incapable of breaking down,
it was just a relationship of people who knew each other
and he drew all sorts of weird comparisons of various
other forms of relationships.
If that was the only corroboration that I had to
rely upon to support my client's evidence that there was
a relationship, I'd be on very shaky ground Your Honour,
but I'm just putting it at this point as just another
item of corroboration that there was a relationship and
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it was over the period of time that Mr - that my client
asserts, and I'll come back to the affidavit that Mr
Johnson swore, but I'll be doing that a bit later on Your
Honour in the family law proceedings. Whilst in the nine
year period - - -
HIS HONOUR: Thanks David.
MR DEVRIES: Sorry Your Honour. Whilst we're on the nine year
period of the relationship which is consistent with -
that period is consistent with what my client asserts the
relationship was.
and, I'll come back to this point later on, but it is
important to her case that it is a nine year relationship
as distinct from a relationship of a much shorter
compass, because the contributions that a party can make
are going to be a lot less in two years in most cases
than they would be in nine years if it was a constant
form of contribution. So whilst Mr Johnson seemed to
portray this argument that we were required to establish
a relationship of two years, no more, no less and that
that two years had to end within two years of the issuing
of the application, that is not the law and that is not
the situation, Your Honour.
HIS HONOUR: That's the minimum.
MR DEVRIES: That's the minimum.
HIS HONOUR: That's the minimum.
MR DEVRIES: It's not, with respect, Your Honour, it's not
necessarily the minimum.
HIS HONOUR: Not necessarily the minimum. Two years is the
minimum. Within two years of the date of issue of
proceedings is a prima facie position subject to I think
an application for extension, is it not?
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MR DEVRIES: It is, Your Honour, and there are a huge number of
cases around extensions and they just say that
effectively the hurdles that the applicant has to
overcome are not very high hurdles. But the length of
the relationship doesn't even have to be two years if
there is a child of the domestic partners, and that is at
sub-s.2A of s.281 of the Act as it then was, or: "A
failure to make the order will result in a serious
injustice to the domestic partner."
HIS HONOUR: Yes.
MR DEVRIES: I am not relying on sub-s.2B, Your Honour.
HIS HONOUR: It's 2A.
MR DEVRIES: 2A, if there was any suggestion that the
relationship was less than two years. But Your Honour
picked up Mr Johnson when he started to resile from the
relationship of the parties whilst at South Yarra and he
had said well, a reasonable person would find that there
was a domestic relationship for that period, and the
period happened to be two years and about three months.
HIS HONOUR: Curiously that is the period when he alleges your
client had two affairs.
MR DEVRIES: Yes.
HIS HONOUR: So - - -
MR DEVRIES: It was an allegation that - - -
HIS HONOUR: Without wanting to divert you, if he knew your
client still had two affairs and he still hung in there
for a relationship, that speaks something about his
degree of attachment.
MR DEVRIES: Yes, Your Honour, and degree of attachment comes
in as well in respect to his bonding with the two boys of
my client.
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HIS HONOUR: Yes, payment of education fees.
MR DEVRIES: Payment of education fees and it begs the question
if you accept his evidence that he made so many payments
to my client and I will be taking issue with some of
those, but if he did make all these payments or if he did
want to be seen to be making all those payments, why
would he do that if there was no a fairly close
relationship. This is a man who has given evidence that
he went to extraordinary lengths to minimise the taxation
on his income, that's why he has this extraordinary
investing policy.
Now, a person who is that careful of not paying tax
is not going to be spending a vast amount of money
unnecessarily on a charitable activity, in my submission.
Now, Your Honour, whilst I am on the Act, the Act or that
part of the Act defines "children" for the purposes of
parts of the Act quite differently. For the purpose that
I have just read to Your Honour that the child of the
domestic partner is the child born of the relationship of
them, or a child adopted by the partners, which isn't the
case here, or: "A child of one of the partners of whom
the other partner is presumed to be the father under Part
2 of the Status of Children Act," that doesn't apply
either.
But there is another reference to "child" and that
is at s.285, the section dealing with orders for
adjustment. In sub-s.1B of that it talks about:
"Contributions made in the capacity of home maker and
parent to the welfare of the other domestic partner, or
to the welfare of the family constituted by the partners
and one or more of the following: a child of the
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partners," that's Illyana, "or a child accepted by one or
both of the partners into their household, whether or not
the child is a child of either of the partners."
If Your Honour upholds my submission that there was
a domestic relationship between the parties, two of the
members of that family were the two boys that were
accepted - well, the children of my client and they were
accepted as part of the household by Mr Johnson and in a
very significant way, because he gave evidence, to my
recollection, about family memberships of the zoo and
other places and that they went on excursions using that
and he took all of the children.
Again, I put that in that context and also in the
context where he says there was no evidence of any family
activities, and his own evidence was, well, I signed them
up to family memberships, we went out on family
excursions, and there was also evidence from both of them
that they went out to dinner a lot as a couple. The
significance of "the child accepted by one or more of the
partners" will also go to the ongoing contribution of my
client up to the commencement of these proceedings or
later, pursuant to Gilda v. Procopets, and that is her
contribution as parent of all three children, not just of
Illyana.
An in that context, so the context of the two
boys being part of the family, if I could also refer to
Your Honour to Exhibit 19 which was his application in
the Federal Magistrates' Court proceedings where he
sought to have those two boys reside with him and under
cross-examination from me. He eventually conceded with a
great deal of reluctance that he never sought to have the
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two boys deleted from that application and therefore that
application was sought by him right up until His Honour
Federal Magistrate O'Dwyer made the orders that have been
tendered before Your Honour, the final orders.
Now, returning back to the misrepresentations
made by Mr Johnson in his address, there is also his
uncountable references to discovery. There was no
discovery, as that term was properly understood in these
proceedings. At best, there was the order of His
Honour - - -
HIS HONOUR: Justice Wheelan in March - - -
MR DEVRIES: - - - Justice Wheelan - - -
HIS HONOUR: - - -of last year.
MR DEVRIES: 12 March, yes.
HIS HONOUR: There's a limited order.
MR DEVRIES: A limited order and it was, so, essentially the
bringing to the court of documents. The other inaccuracy
that Mr Johnson perpetrated throughout his address, and I
think even in his evidence, was that the order made by
His Honour on 12 March was a consent order. It wasn't,
Your Honour. There's nothing in the order on the face
of the order to suggest that it was an order by consent.
HIS HONOUR: What were the there were some I think he's
really referring to what was in the other matters section
of His Honour's orders. How did they get into that part
of the order? Is that by consent?
MR DEVRIES: M'mm.
HIS HONOUR: You've got your court book there, it's at p.80.
MR DEVRIES: Yes, Your Honour.
HIS HONOUR: In fact, it sounds like it wasn't consensual. It
was done - - -
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MR DEVRIES: I think it was done - - -
HIS HONOUR: - - - by your predecessor of his own motion.
Because what he said what's recorded there is, "The
plaintiff's counsel advised the court the defendant could
collect the boxes of records presently in a shed at
Altona from the front porch of that address at 10 a.m. on
14 March and the defendant advised he would collect them
then." So, it sounds like that might have simply been
made or stated as a proposition - - -
MR DEVRIES: Yes, Your Honour.
HIS HONOUR: - - - by counsel. But, you say, the orders for
discovery there, limited discovery, were simply His
Honour's orders and not by consent?
MR DEVRIES: That's right, Your Honour.
HIS HONOUR: Go on.
MR DEVRIES: And, it was required of both parties and
absolutely nothing hinges on it but I've done a search of
the court documents that were briefed to me, which I
believe are very extensive and I couldn't find an
affidavit from the defendant anyway listing document that
he had - - -
HIS HONOUR: No, I don't think I've noticed one and then I
notice the matter came before Master Kings on 9 April and
effectively she reiterated the terms of the limited
discovery order.
MR DEVRIES: Yes, Your Honour.
HIS HONOUR: Which is clause 1, Mr Johnson was there.
Presumably he did not seek an order for discovery.
Presumably neither of you did. I would have thought that
the listing would have made such a broader order had she
been asked. There you are.
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talking.
HIS HONOUR: Mutually, Mr Devries, if you need a break, I'll
certainly give you one.
MR DEVRIES: Mr Johnson, during his submissions sorry, during
his address repeatedly made reference to his application
to amend his counter-claim.
That could not be further from the truth. On at least
one occasion, Your Honour, no more than one occasion with
respect, Your Honour indicated that Your Honour would
accede to an application by him to amend his counter-
claim provided certain conditions were met, that he put
it in writing, that the amendments didn't take the other
parties as they then were by surprise - and I don't think
I'm doing Your Honour justice and I don't wish to go to
the transcript because it would unnecessarily extend the
time, but on each - - -
HIS HONOUR: Yes, I recollect having stated to him the basic
principle of a trial of Willem J in the pleading
providing it doesn't provide undue injustice to the other
side, provided also that the amendment is put in writing.
The impression I must say I had throughout the trial is
that Mr Johnson did not want to do that. He wanted to
preserve the very large counter-claim, and when I say
large I mean large in terms of how much paper it
consumes, as he has in the other proceeding and he didn't
want to bring it in part into this proceeding but rather
wanted to bring the whole of that proceeding into this
proceeding which self-evidently was impossible and
unworkable.
MR DEVRIES: I think that was part of it. I might say that
it's large also in the relief that he is seeking against
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the 13 defendants. He is seeking, on my instructor's
calculations, 11 and a half million dollars. So whilst
we are on that for just one moment, Your Honour - - -
HIS HONOUR: Yes, I'm sorry, I diverted you.
MR DEVRIES: Yes, at p.574 of the transcript Your Honour says,
and it's one sentence: "I would allow you to amend your
pleading subject to any issues of prejudice to the
defendants, however, this court is a court of pleading,
it is a common law court, the proceedings are by way of
writ. You managed to deliver the defence into service
counter-claims against all defendants." He, Mr Johnson,
declined Your Honour's - if I can put it that way
- invitation: "I believe I have sufficient facts stating
my February 2008 counter-claims in which to ground my
counter-claims against David William Hanlon and Howard
Andrews Pty Ltd." Your Honour then said: "You have to
prove those facts." And he said: "I appreciate that."
Then of course he went on to his endless refrain of there
are other proceedings and Your Honour ought to bring
those into this matter.
HIS HONOUR: Yes.
MR DEVRIES: Your Honour very, with respect, patiently
explained over and over again why that couldn't happen,
and that was one of the rulings that he had great
difficulty in hearing and accepting. I think the same
thing happened again - p.1007 of the submissions - sorry,
1006. Your Honour made similar comments at the bottom of
p.1006, top of p.1007. You gave him over lunch to
consider whether he wished to do that and he again never
took up that invitation. I think that might be at 1016.
HIS HONOUR: Yes, that's right, I told him I would only accept
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an amendment if it was properly drawn, there was an
explanation why it was only proffered at a late stage.
Thirdly: "An indication of forensic disadvantage the
second and third defendants in the sense that they could
deal with new issues raised by them recalling witnesses
or further witnesses. Those three conditions you would
need to meet." Well, that's simply trite law that I was
stating to him: "So you would need to think very hard
and carefully about whether you wish to amend." That's
right, I gave him the luncheon adjournment to consider
amendment.
MR DEVRIES: Then on p.1016 you asked him a number of times or
you sought on a number of occasions to get a straight
answer from him. Towards the bottom of p.1016 at line
24, Your Honour asks him: "Do you seek leave to do it or
not?" Mr Johnson said: "In a word." Your Honour goes
on: "You are not shut out, do you seek leave to do so or
not?" Mr Johnson: "In one word answer, no." Then, not
a typically for Mr Johnson: "Your Honour, may I explain
further?" Yet in his address he seemed to suggest that
he had applied to amend his counter-claim and at no stage
had he applied to amend that counter-claim.
HIS HONOUR: Yes.
MR DEVRIES: Another thing that was in his address but was the
evidence, and in my submission deliberately was the
allegations regarding Mr Cochrane.
HIS HONOUR: Yes, I was wondering about that, I could not
recollect him putting them to your client.
MR DEVRIES: There is no one word Mr Cochrane put to my client
in her cross-examination, at least I have gone through
the transcript a number of times and I couldnt find it.
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HIS HONOUR: Yes.
MR DEVRIES: Nor was there any evidence about Mr Cochrane from
Mr Johnson except in the context of him being called to
give evidence, and it was more - - -
HIS HONOUR: He alleged a relationship.
MR DEVRIES: He did, but that was during the course of saying
this is why I want Mr Cochrane, because that is the
evidence he is going to give.
HIS HONOUR: I thought in his evidence in the witness box he
alleged a relationship - I wish I had noted this now
because his evidence is quite lengthy - I may be wrong.
MR DEVRIES: There is certainly a reference at 495.
HIS HONOUR: Here it is, p.442. That page reference may not be
dead accurate. I just summarised for my own purposes.
MR DEVRIES: Sorry, Your Honour is correct, I hadn't gone to
that part.
HIS HONOUR: Here it is, the top of p.443.
MR DEVRIES: Yes: "Where Ms Cressy is involved in a long term
intimate relationship with another gentleman, a Mr Peter
Cochrane, who I did not know at the time but there was
very nasty stalking behaviour that I was the victim of
and some identity theft that started happening." There
were two other references to Mr Cochrane that I could
find. One was at p.475 I think it was, Your Honour, 495,
sorry.
This is where he says: "So much resources to keep
her going back from going into prostitution, because that
was not a good life for her and you can imagine the flow
on effects for the children, this is why this witness, Mr
Peter Cochrane, was so critical to the case. He can give
independent evidence of the flow on and he was himself
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part of the substantial harm that the lifestyle brings to
the family unit." Interesting, too, because he talks of
the family unit and without a doubt whatever he alleges
Mr Cochrane did, it involved damage to him as part of the
family unit. There was one other reference I could find
to Mr Cochrane and that's at 549.
HIS HONOUR: That's not correct, 541 did you say?
MR DEVRIES: 549, line 5. This is in the discussion - it was
in the witness box but it was a discussion about bringing
Mr Cochrane to court, and I have said on p.548: "I
cannot conceive how - " - I don't think I said this word
"conceive", "but on the information I have had the
evidence of - " - "I will concede, however, on the
evidence I have held, the evidence of Mr Cochrane can be
of any assistance to Your Honour, and Mr Johnson says:
"Now, this man - if I'm saying too much please stop,"
this is over the page, "please stop me in a minute,
Your Honour."
HIS HONOUR: Sorry, where are you?
MR DEVRIES: I'm now over the page at p.549, line 2. "Now,
this man - if I'm saying too much please stop me in a
minute, Your Honour. I believe from correspondence that
he wrote to me which I wish to tender in evidence that he
was in an intimate personal relationship with Ms Cressy
for about three years whilst she was living under my roof
at South Yarra and he observed her work in several
licensed, unlicensed, I don't know, several brothels,
Your Honour."
He says: "I wish to tender in evidence." So he
wishes to get Mr Cochrane in to give the evidence. I
suppose I would have to concede that in a very indirect
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sense he may be giving that evidence. It's not something
that was put to my client.
HIS HONOUR: Not put to your client and in the end of the day
Mr Cochrane, whether truthfully or otherwise, may well be
because of his medical condition didn't seem to recognise
anyone in this court, but Constable Locke, who had
evidence by way of admission from your client as to
nothing more than he had been a client in the brothel.
MR DEVRIES: And that he had followed her home.
HIS HONOUR: He'd followed her home, stalked her, and whilst
she did say something about a relationship, in cross-
examination she agreed with you that such a relationship
may well have been confined simply to the relationship of
stalker and victim of stalker.
MR DEVRIES: Yes. She was - Mr Cochrane, her and others were
witnesses called by Mr Johnson and then he did the
extraordinary thing in his addresses in each case
criticising his own witnesses, which I found that
somewhat extraordinary but (indistinct). Now, just
seeing a photograph here on my - on the Bar table,
they've got nothing to do with this matter. It brings to
mind again Mr Johnson's
Mr Johnson's changing position with respect to
Illyana, having conceded very explicitly that he takes no
issues with the fact that he was she was his daughter
and then on other occasions saying she wasn't. He went
to great lengths to get into evidence, a photograph of
his of him and his daughter and went beyond that and I
think possibly improperly, by having the photograph of
his daughter very clearly placed on the Bar table, face
up to Your Honour, as if hoping that would get it into
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evidence or in some way affect Your Honour. But, that's
also, I suppose, behaviour that puts light to some of the
things that he said.
Your Honour, a further misrepresentation in the
hearing is made by Mr Johnson in his address is at
p.1703, Line 12 of the transcript and this is where he
stated that Ms Cressy senior also admits to having some
mental health issues, serious depression episodes, some
serious drug-taking and alcohol problems. She admitted
that under cross-examination. Nothing could be further
from the truth, Your Honour. She certainly said that she
took a wide range of prescription medication and that she
suffered from depression but she explicitly denied
illicit drug-taking and alcohol problems.
Mr Johnson, in evidence from the Bar table no,
sorry, at p.1714, put to Your Honour that I had made the
suggestion under cross-examination that he and my client
were living as pimp and prostitute. I never, ever put
anything along the lines of him pimping my client, being
a pimp or anything like that. As far as I, - I went as
far as to say that he had registered. He also stated at
1724 that there was evidence in the Family Court that had
him as drunken, violent, drug-taking, incestuous
paedophile. This is evidence from the Bar table. I can
provide the judgment. At no stage was there any
suggestion made that Mr Johnson was any of those things.
HIS HONOUR: Well, I told Mr Johnson that I'm only concerned
with the evidence in this case, in any event.
MR DEVRIES: Yes. This goes in a positive - - -
HIS HONOUR: In fact, I put to him and I think then he I'm
pretty certain I put to him that if it goes to his credit
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that he bonded so well with - - -
MR DEVRIES: Yes.
HIS HONOUR: - - - Ms Cressy's children, you rely on that as a
point as showing the existence of the relationship but it
does seem that notwithstanding the very long work hours
that he had, he was the nonetheless able to sustain a
very good relationship with the three children. Now,
that's the evidence before me.
MR DEVRIES: And, it does say a great deal for him, Your
Honour. I have to concede that working well, first of
all working 80 hours a week plus, that says a great deal
of him and that notwithstanding that, that he's still
there, sufficiently to build up the sort of relationship
with the three children but in particular the two boys
that are admittedly not his two children. He also said
at p.1726 that he'd provided ongoing child support yet
the evidence was that there was only one payment of
eighteen of $800, in I think, August or September 2007.
And, he then made the intriguing statement on
p.1726, Line 21, "The $2m that I was assessed as
creditworthy, based on my financials and loan
applications by the Commonwealth Bank." That's
breathtaking, given his admissions of the inaccuracy of
the information that he put to the lending institution
and the evidence that he candidly gave that all of the
financial information he gave them was two years out of
date and related taxable income that preceded the
applications by two years.
HIS HONOUR: He nevertheless produced some financial evidence
to the lenders and they lent sums, which I think his
arithmetic's about right, about $2m.
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MR DEVRIES: I can't take issue with that because that the
figures do stack up.
HIS HONOUR: Yes.
MR DEVRIES: And - - -
HIS HONOUR: It's pretty extraordinary, but - - -
MR DEVRIES: He gave evidence that he that whenever sorry,
that he bought the properties and whenever any equity was
achieved in the properties - - -
HIS HONOUR: Yes.
MR DEVRIES: - - - that was taken out to buy another property.
HIS HONOUR: Yes.
MR DEVRIES: And, it's the plaintiff's case that that was a
very precarious house of cards that he had erected and
that it worked well, firstly while he continued to work
and could meet the mortgage payments but also worked well
when the burden of making payments for other aspects of
his living expenses was borne by my client.
HIS HONOUR: Yes.
MR DEVRIES: And, as soon as she pulls her contribution out,
that's the beginning of the collapsing of the house of
cards and that's why, I'll be submitting a bit further on
that she's made a very significant, indirect financial
contribution to the acquisition of the properties. I can
say this, at this stage, Your Honour, or concede at this
stage.
It's not her case and I don't believe it ever has been
her case that she made significant or substantial direct
contributions to the mortgage payments on the property.
She did say that occasionally she advanced some cash
towards - - -
HIS HONOUR: The deposits.
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MR DEVRIES: The deposits.
HIS HONOUR: That's all she said, in fact I think she very
freely acknowledged that he took the burden of the
mortgages and she paid the household.
MR DEVRIES: She said that was their - - -
HIS HONOUR: He paid the mortgages and utilities. She paid
food and living expenses.
MR DEVRIES: Yes, and she was consistent in that and she said
that was their arrangement, that he took responsibility
for that and her evidence was that either he told her or
he told her to believe - the properties were put in his
name for various taxation reasons and also because he had
the capacity to borrow and she didn't have the capacity
to borrow. In a sense they were very, very significant
contributions on his part but, as I will be coming to
hopefully not too much further down the track, he could
not have done that without her help and therefore her
help was significant, if not as financially substantial
as his.
If I (indistinct) there, Your Honour, I believe I
have to establish the relationship and I will come to
that in a second.
HIS HONOUR: Yes, that is your threshold point, question.
MR DEVRIES: Yes, before I do that just one more aspect of
Mr Johnson's submissions. There seem to be four legs or
he said there were four legs to his submissions. The
fourth one seemed to be, if I could summarise it as
representative conduct, and I think the other three were
that there was no relationship, that the plaintiff's case
relied totally on vive voce evidence and there was no
hard evidence and there were no financial contributions
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by my client. I glean those to be the four points that
he made, but whilst I will answer those areas more to my
client's case than that.
HIS HONOUR: Yes.
MR DEVRIES: In respect to the relationship, Your Honour, he
submits that there is no evidence over and above my
client's evidence. First of all, that begs the question,
in my submission, as to the respective credit of the two
parties. The first matter I will address in respect to
credit is Mr Johnson's behaviour in this honourable court
and I submitted on Friday that he was trying to erect a
massive smoke screen and trying to divert everyone's
attention from dealing with the issues themselves, the
relevant issues head on.
In the context of him being an educated, relevantly
educated, highly intelligent, articulate person, the only
conclusion Your Honour could draw with respect is that
his behaviour was calculated and deliberate and it begs
the question if he was trying to prevent the matters
being dealt with head on, the proper issues, that could
only be because he was afraid of where dealing with the
issues head on would take him.
He also had an endless refrain of show me the
documents, show me your documents, put your documents
forward. My client gave evidence that she couldnt
provide the documents because they had been stolen. No
evidence, no clear evidence that Mr Johnson stole the
documents, but in my submission it is open to Your
Honour, with respect, to conclude that Mr Johnson's
constant theme of you have got no case without the
documents, you can't show me the documents, and his
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accusations that my client took documents from him to
prevent him putting documents forward, leads to only one
conclusion and that is that he had taken the documents,
why else would he make a big issue of the documents.
HIS HONOUR: He gave an account as to how he on one occasion
entered, I think it was the Point Cook property, and
photocopied some documents. He denied otherwise taking
them. My recollection is that you did not cross-examine
him on that. I am not being critical of you, you
couldn't chase every rabbit down every burrow, but you
ask me to draw a conclusion against him which I could
only draw on the Briggenshaw standard in the face of his
evidence which has not been tested on that topic.
Whatever I find generally about his credit, he wasn't
cross-examined to my recollection on that topic. It may
be a tall order to ask me to find that he actually
specifically stole them. It may be a different issue as
to whether nonetheless I am not to draw a Jones v. Dunkel
inference against your client because she can't unearth
them.
MR DEVRIES: I didn't cross-examine him on that, Your Honour,
my submission - and I concede it's certainly not the
strongest point of my case - I hope it's not the
strongest point of my case - is that it is open for Your
Honour to draw that conclusion but on a Briggenshaw test
I have to concede that Your Honour couldn't do that.
But I am not pressing Your Honour to do that but I
do raise that as a possibility. There are far - - -
HIS HONOUR: What he really puts in relation to the
relationship is this, he put a number of submissions but
one of his submissions was well Ms Cressy produced a
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couple of documents from early in the relationship, the
Valentines Day card and I think another message is
attached to it. But there are no other documents, no
photographs of family scenes, anything like that. His
greater argument I think on documentation was directed to
the issue of contribution, just look at how they could
document their relationship. But he did make that point
on the relationship, chronologically you'll need to deal
with these points.
In relation to the existence of a relationship at
Geelong he referred to the birth certificate of Illyana
which put them at separate addresses, he claimed there
was an inconsistency in your clients evidence as to when
she moved from Illouera Grove to Gheringhap Street, he -
and there was another point on Geelong, yes he also - no,
no those are the major points on Geelong. On South Yarra
while he made the concession on cross-examination he did
submit well there's a large extended family there and
somehow or other that it militated against there being a
relationship at South Yarra as well as alleging your
client had a relationships with Cochram and a man called
Mark.
He focused pretty heavily on Queen Street and said
apart from the mail direction there's no independent
evidence as to a relationship extending during that
period. He referred to his licences which weren't
endorsed with the Queen Street address. He referred to
the fact that he had the Bourke Street offices and he
said "Well I didn't need offices because I was working
for Primelife in Bowen and they gave me offices of my
own" so he said that supported his evidence, he primarily
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took those apartments for domestic arrangements. I think
they're some of the points he made.
MR DEVRIES: Yes.
HIS HONOUR: And I spray them around to you, but they're some
points you will need to address on this aspect of the
case. I must say getting those points out of his long
one and a half day address is trying to find little
specks of light in a very turgid dark whirlpool that was
confusing, had to go through his final address a few
times to try and pull out and extract the points that
really had some relevance to this case.
MR DEVRIES: I was hoping to deal with those in various ways.
HIS HONOUR: M'mm.
MR DEVRIES: Perhaps if I could deal with the - well the - - -
HIS HONOUR: Now I don't expect you to address them
immediately, but they're the types of points he's really
raising.
MR DEVRIES: I was intending to address them after going into
why, where there's a conflict in the evidence between my
client and Mr Johnson, you should prefer my client's
evidence.
HIS HONOUR: It's better you do it in the order you were
planning to do it otherwise I'll distract you from it, if
you can deal with those points as you get to them.
MR DEVRIES: I can deal with them now Your Honour.
HIS HONOUR: Well whenever you wish.
MR DEVRIES: Your Honour just bear with me for one moment, just
(indistinct) identify a particular - Exhibit F Your
Honour, this is the notorious affidavit.
HIS HONOUR: Yes, yes I've got that.
MR DEVRIES: In respect of that, the first submission I put to
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shortly Your Honour but twice he gave evidence that he'd
signed each page of that document, that he swore it as
being true and correct in every particular and that he
accepted responsibility for it's contents. He did say in
the high tide low tide context that
Your Honour should take his documentation in the
context of the audience for which it was written and that
at one stage he suggested, I can take Your Honour to the
transcript reference in a moment, that, what else could
you what else could he do, he was desperate to protect
the boys, or not quite those words but that was the
context. But, Your Honour, it quite clearly is sworn
evidence given by Mr Johnson in September 2007 that he
commenced a relationship with my client in about November
1998 and that's at Paragraph 2 of that affidavit. Then
he goes on to say in Paragraph 4, "The respondent and I
have lived or partly lived together from December 1998 to
January 1999 and from May 1999 to June 2007."
And, that is also consistent with his unvaried
application to the court to the Federal Magistrates'
Court, which is Exhibit 19 where the same concepts are put
to the court and the application was never varied. And
then he goes on to say, "The respondent and I have one
child together, Illyana Patricia Cressy born 9 June 2000."
There is no doubt there that he is asserting that Illyana
is his child.
HIS HONOUR: This is the affidavit in that application isn't
it? That's - - -
MR DEVRIES: Yes.
HIS HONOUR: - - - Exhibit F of the affidavit in application
which is Exhibit 19.
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MR DEVRIES: Yes, it was filed contemporaneously with the
application, Your Honour. You'll see on the top of both
of them, filed at Melbourne and the date stamp
14 September 2007. I - - -
HIS HONOUR: Yes, I see.
MR DEVRIES: And, for the same hearing date obviously and in
the same - - -
HIS HONOUR: Yes.
MR DEVRIES: - - - matter.
HIS HONOUR: Same matter, yes, right.
MR DEVRIES: I'm not suggesting, Your Honour, that he signed
that application because he didn't. That was signed - - -
HIS HONOUR: Yes.
MR DEVRIES: - - - quite appropriately and quite normally by
his solicitor but what Im relying on is the fact that he
conceded in cross-examination that he never sought to
change or vary that application in any particular. But,
more importantly, he has gone on his oath as both a
litigant and as an officer of this court and of the
Federal Magistrates' Court to depose to the fact that they
were in a relationship and it's a relationship that spans
precisely the same period of time as my client's viva voce
evidence put it at.
The only difference between my client's evidence
in respect to the period of the relationship and that
affidavit is as to precisely when the parties had a
separation mid relationship. I don't believe, or I can't
recall, I should say, that she gave evidence that they had
a break from January 1999 to May 1999 but she did give
evidence that they had a two month separation - - -
HIS HONOUR: Yes.
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MR DEVRIES: - - - shortly prior to the birth of - - -
HIS HONOUR: Illyana.
MR DEVRIES: Illyana.
HIS HONOUR: Yes, my impression was that it was early 2000.
MR DEVRIES: Yes, Illyana being born in June 2000. If there
was a two month separation shortly prior to her birth, it
would have to have been in the first five months of 2000.
HIS HONOUR: I have some recollection Mr Johnson did talk about
some sort of ruction in their relationship - - -
MR DEVRIES: Yes.
HIS HONOUR: - - - at times. Do you?
MR DEVRIES: And my client gave evidence that there was some
relationship counselling with two different counsellors.
One was Ms Love and one was I can't remember the lady's
name, I believe she gave evidence that that was at about
the time of the break that she says occurred just before
Illyana's birth. And, I might If I can, in that
context, digress for a moment and turn to the birth
certificate, Your Honour. I'd ask Your Honour to have a
look at the birth certificate.
HIS HONOUR: It is Exhibit 9, isn't it?
MR DEVRIES: It's Exhibit 9.
HIS HONOUR: I think I've got that too, I'll just check. I've
got a copy of it, yes, I've got that.
MR DEVRIES: Your Honour, I can't give evidence as to how birth
certificates are produced but the birth certificate has an
error in the spelling of Illouera Avenue and Mr Johnson
put to my client in cross-examination that the street
number was wrong and he said, "It's not number five but
it's number 12 that you lived at" and she more or less
agreed with him but
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indicated that she wasn't too sure of the address number.
But the first thing I would ask Your Honour to take
account of is the birth certificate, whoever provided the
information - if it was my client who provided it she
would have provided it very shortly after the birth of
Illyana, very shortly after there was a resumption of
their relationship and the two errors that are in the
address, in my submission, are Mr Johnson's doing and I
ask Your Honour to look at Exhibit D which is the AMP
application.
HIS HONOUR: Yes, I've got that.
MR DEVRIES: If Your Honour looks at - well, firstly that
document - - -
HIS HONOUR: It's the same spelling - it's not the same
spelling, it's a similar erroneous spelling of Illouera
Avenue though, isn't it?
MR DEVRIES: Yes, it's got a "v" there or what could be taken
to be a "v".
HIS HONOUR: "Illavera", yes, I follow.
MR DEVRIES: It's got a "5" in the address. It is open for
that interpretation as to that, but more importantly this
home loan application is another document which puts
Mr Johnson - - -
HIS HONOUR: Yes, you put that in counter don't you really?
MR DEVRIES: Yes.
HIS HONOUR: Did he give any evidence as to who registered the
birth of Illyana?
MR DEVRIES: He suggested it must have been my client.
HIS HONOUR: But he didn't give direct evidence.
MR DEVRIES: No, and more importantly, the birth certificate,
it's filling in, it's contents were never put to my
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client.
HIS HONOUR: Yes.
MR DEVRIES: Mr Johnson complains that I cross-examined him on
documents that hadn't been put through my client, but he
cross-examined my client on documents that he later
produced that he hadn't finished her evidence. But there
is also another document, Your Honour, which comes out of
his Exhibit 1G which is Mr Johnson's tenancy application.
I will hand that up to Your Honour. I haven't got a copy
myself. I had better take my instructor's flags off it
because they're not part of the document.
HIS HONOUR: She didn't seem to answer - I'd asked him who'd
registered Illyana's birth, and at p.420 it doesn't
really seem to say or seem to know, but that is a
digression. You take me now, the tenancy agreement,
there's an extract from 1G.
MR DEVRIES: Yes, which is one of Mr - - -
HIS HONOUR: This is the tenancy application for 45 Nicholson
Street.
MR DEVRIES: It is, Your Honour, and is one of the documents
that were tendered by Mr Johnson.
HIS HONOUR: Mr Johnson, yes.
MR DEVRIES: What you call the loot.
HIS HONOUR: He has signed it.
MR DEVRIES: He has signed it.
HIS HONOUR: 5 Illouera Grove is his present address, and
missed the spelling.
MR DEVRIES: Yes. If Your Honour would - sorry, I'm going
too fast.
HIS HONOUR: Yes.
MR DEVRIES: If Your Honour will turn over the page you will
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see a photocopy of the document that Your Honour has
already seen, and that's his driving licence, which also
puts his address at 5 Illouera.
HIS HONOUR: Yes, and that's tendered actually.
MR DEVRIES: Yes.
HIS HONOUR: That's one of the exhibits.
MR DEVRIES: Yes, I will take you to it. I think that might be
Exhibit K, the learners permit, number 03268 - - -
HIS HONOUR: This is a drivers licence which expires in June
2001 with obviously the sticker over it of Illouera Grove
misspelt.
MR DEVRIES: Yes. Sorry to ask you a question, Your Honour,
does that have number 032685419 or - - -
HIS HONOUR: 32685419.
MR DEVRIES: That was his learners permit, Your Honour,
Exhibit K.
HIS HONOUR: Thank you. I will just check. Could I have
Exhibit K please. No, it isn't, Exhibit K is a specific
permit.
MR DEVRIES: Yes, sorry, it has the same number I understand
Your Honour.
HIS HONOUR: No, it's different number. Exhibit K is
032685419. I see, yes, no you're quite right, I
apologise, it is the same number. Expiry 24 March 2009
is Exhibit K and that's a learners permit. You've got a
drivers licence which has the same number but I have a
feeling that licence is in - - -
MR DEVRIES: It was, Your Honour. 48 I believe, Your Honour.
HIS HONOUR: That was the one I think he pointed to that
although it had Illouera Grove it never had Queen Street.
Yes, I've got that. Yes, it's the same number but it
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physically looks a bit different and it's got actually
with the sticker of the Endeavour Drive over the top
of it.
MR DEVRIES: I think you deny that it ever had Illouera and we
were speculating as to what might have been under the
sticker.
HIS HONOUR: But the real point you are making, in any event,
and this is an example of a document that not only has he
signed a document giving his address as Illouera Grove
but at that time he had his licence endorsed to Illouera
Grove, he did give evidence that he did actually endorse
his licence to then, to Illouera Grove, I think he
repeated that quite recently because he'd moved out of
his matrimonial home and had nowhere else to put.
MR DEVRIES: He said in his address that he had asked my
client's permission to use her address which of course
wasn't put to her, but begged the question he had so many
other addresses she said he could have used. But there
is another aspect to that tenancy application, Your
Honour, that is extremely relevant, in my submission.
That is that he says that - sorry, that document was
dated 1 November 2000 and he said he had lived at
Illouera Grove.
HIS HONOUR: For two years.
MR DEVRIES: Upwards of two years, which puts it precisely at
the date that my client says they started, around about
Cup Day - sorry, 1998.
HIS HONOUR: Late '98 she said.
MR DEVRIES: Yes.
HIS HONOUR: It's interesting because that document allows for
how many years and how many months and he's just put the
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two years.
MR DEVRIES: He himself submitted to Your Honour that he was a
man who was very precise about what he did and everything
was very tidy and well documented and there is no doubt
from the bundles of exhibits that he was very organised
with his paperwork, and for that I envy him. There is
another document which he tendered in the pink folder
here.
HIS HONOUR: This is from 1K is it you've just given me. I'm
sorry, 1G.
MR DEVRIES: And 1G as well Your Honour.
HIS HONOUR: Sorry, Mr Devries.
MR DEVRIES: Got to keep your Tipstaff - that's one way of
doing it.
HIS HONOUR: Keeping him moving, it's good for him.
MR DEVRIES: That was in the same exhibit, Your Honour.
HIS HONOUR: That's 1G is it?
MR DEVRIES: Would it be convenient for Your Honour to have a
five minute break now?
HIS HONOUR: Yes, look I'll do that, it's probably a good idea.
(Short Adjournment)
HIS HONOUR: Yes, thanks, Mr Devries.
MR DEVRIES: Your Honour, that document is interesting for two
reasons. One is on the second - - -
HIS HONOUR: Now, this is also from Exhibit 1G.
MR DEVRIES: Also from Exhibit 1G. Also one of Mr Johnson's
documents. It's significant, in my submission, because
of the nature of the document and also because on the
second page of the document it gives his residential
address as 5 Illouera Avenue as at August 2000. It
purports to be a table of assets and liabilities of both
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Mr Johnson and my client and the only reason that one
would do that is if one was holding them out to be in a
partnership of some nature.
HIS HONOUR: Now, 1G again, they were documents relating to one
of the properties - Point Cook, Dorrington Street, yes.
That must have been for the financing of the acquisition
of Dorrington Street, was it?
MR DEVRIES: That's what the total - - -
HIS HONOUR: The topic in that - - -
MR DEVRIES: File.
HIS HONOUR: I wonder if I could have a look at that if I might
thanks, Mr Turnbull?
MR DEVRIES: I have looked the thing on the the dyno tape on
the spine which is how Mr - - -
HIS HONOUR: Well that also, that says Point Cook, Dorrington
Street.
MR DEVRIES: It would either be the financing or if there was
any improvements to the property - - -
HIS HONOUR: Construction or something. But you wouldn't be
giving the joint assets except for finance and
construction probably of the house it would seem. Yes.
And again the unusual spelling of Illouera.
MR DEVRIES: Yes, Your Honour.
HIS HONOUR: Yes. Now, that comes from this document too,
does it?
MR DEVRIES: It does, Your Honour, yes.
HIS HONOUR: Yes, thanks.
MR DEVRIES: Now, in my submission, that together with his
licence, the AMP application - and I think there's a
redirect, I have to check that, puts him fairly and
squarely at Illouera for two years up to the end of 2000.
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And thereafter he moves to South Yarra and he makes
no - - -
HIS HONOUR: And they both go to Gheringhap Street.
MR DEVRIES: Gheringhap.
HIS HONOUR: He says he went and the plaintiff did not.
MR DEVRIES: And she's clearly given evidence that she did,
whilst maintaining the Illouera property which seems to
have been good sense on her part if they had a separation
(indistinct). But after Gheringhap there is that
property at 45 Nicholson Street, South Yarra.
HIS HONOUR: Yes.
MR DEVRIES: Where he concedes that the gentleman who rides the
Clapham Omnibus would conclude they lived in a domestic
relationship.
HIS HONOUR: Domestic relationship. He denies it but he says a
reasonable mind might come to a contrary view.
MR DEVRIES: Yes. And that puts another two and a quarter
years at the relationship and again Nicholson Street is
consistent with his affidavit and his loan application
and if - that's consistent for those more than four
years, in my submission - - -
HIS HONOUR: When you say loan application - - -
MR DEVRIES: The AMP loan application which was Exhibit D.
HIS HONOUR: Yes.
MR DEVRIES: That also had him at Illouera as his residential
address.
HIS HONOUR: Yes.
MR DEVRIES: Exhibit C which is a driving licence had him
there. Your Honour, could I just have a look at
Exhibit G for one moment please? Exhibit G was one of
these cards he says is missing, but he puts his address
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at - that's where he calls her his husband.
HIS HONOUR: Husband, yes.
MR DEVRIES: Her address is 5 Illouera.
HIS HONOUR: 5 Illouera with a funny spelling again.
MR DEVRIES: Yes, Your Honour. Your Honour, could I just have
a look at Exhibits H and O for one minute.
HIS HONOUR: H and - - -
MR DEVRIES: O, "O" for Oscar.
HIS HONOUR: Yes.
MR DEVRIES: Exhibit O is the redirect mail from Queen Street
and Mr Johnson has explained it as, well, I needed to
redirect mail in case it was - - -
HIS HONOUR: In case bills weren't paid.
MR DEVRIES: Yes: "And I put down "Sutton Johnson", because
that would ensure that any business mail would be
redirected without me paying the additional amount for a
business redirection." Which is, in my submission, yet
another count against him on the credibility stakes. He
has admitted he is prepared to effectively defraud
Austr
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