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MR DEVRIES: The matter is still proceeding Your Honour.
HIS HONOUR: Thank you Mr Devries.
(JUDGMENT FOLLOWS)
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- - -
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MS SOFRONIOU: If it please the court. Your Honour, I have a
costs application flowing from that.
HIS HONOUR: Yes.
MS SOFRONIOU: Is this a convenient time to make it?
HIS HONOUR: It probably is, it seems to me the alternative is
for you to await the completion and adjudication of the
proceeding. I see no reason to do that and it would seem
to me that your side has been put to pretty great
inconvenience in this case and ought to have some
completion.
MS SOFRONIOU: Thank you Your Honour, if I may do that then.
HIS HONOUR: Yes.
MS SOFRONIOU: The application is actually not costs on the
usual basis but costs on a basis that best indemnifies
the 2nd and 3rd defendants to the counterclaim, so an
indemnity costs order. There is a narrower and a broader
basis for making that so I will try not to make it a long
submission Your Honour, that because it's not just a
usual order for costs, it requires submissions in my
submission.
HIS HONOUR: Yes I follow.
MS SOFRONIOU: The narrower order if I can call it that basis
for the order is a Calderbank letter which I would seek
to hand up to Your Honour. It was addressed to Sutton
lawyers on 18 August 2008, I have a copy for my friends.
HIS HONOUR: Yes thank you.
MS SOFRONIOU: I will give Your Honour a chance to look at it
briefly but it pretty much is an offer to bear own costs
on the ground that the counterclaim is discontinued. In
my submission that is a real compromise because in a case
of this length Your Honour would easily apprehend that
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the costs are a significant amount and in fact this
letter predated the bulk even of the preparation of the
hearing. So all of that could have been compromised.
The date for acceptance of the offer was up until
1 September and no acceptance of the offer was received.
Your Honour has of course considered these kinds of
applications frequently, I can cite a decision of Your
Honours where Your Honour had in the Wallace case.
HIS HONOUR: That's right.
MS SOFRONIOU: Which is I think the case Your Honour had
averted to where even a successful party by its conduct
of proceedings was subject to Your Honour's discretion
that it didn't obtain all of the costs.
HIS HONOUR: That's right, my recollection is in fact I reduced
the costs awarded to the successful party.
MS SOFRONIOU: By a percentage.
HIS HONOUR: Because of the time wasting by that party in the
proceeding.
MS SOFRONIOU: That's right. Your Honour, I can hand up a copy
of that judgment if Your Honour would like to see it.
HIS HONOUR: If you would, it seems a long time ago now, do you
have a copy for Mr Johnson.
MS SOFRONIOU: I'm afraid I don't, having just found it, but
I'm happy to - I'm not applying it of course, seeking to
apply it, because that was where a party was successful.
HIS HONOUR: No, I understand that, it really just reminds me
of some of the principles, but also I think there were
Calderbanks weren't there.
MS SOFRONIOU: That's why I'm referring to it Your Honour, and
I can put it in a nutshell that Your Honour was just
considering on the facts of that case, where there were
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defendant parties have been sitting in court every
sitting day since 2 December 2008, which is quite proper
as they're parties, and they have been exposed to
litanies of repetition as to their fraudulent - allegedly
fraudulent conduct, criminal conduct, breach of human
rights conduct, professionalism, capacity.
It is one thing to say well Your Honour's judgment
having had a trial of the matter and not just deciding it
on an interlocutory basis, serves as some vindication to
say that they are cleared of those allegations.
However, that, in my submission, does not totally end the
subject. I acknowledge that a losing party is not to be
penalised for having lost a case. It is an extra - what
I would call highhanded, and I'm using the language of
authority that I will take Your Honour to - conduct in
raising fraud and in advancing it in this way that
justifies this kind of costs ruling. By upholding a no
case to answer submission, Your Honour didn't hear
competing evidence and decide, "Well, on the relevant
Briginshaw, in this case, test, I prefer the one side."
Your Honour has said that Your Honour could not at law
find.
Now, on that basis, given the specific authorities
and rules that say that fraud, with its connotations of
moral culpability, are not to be pleaded lightly, are not
to be bandied around in a lightweight manner, in my
submission the only answer for that kind of highhanded
behaviour is to put the parties in as much a position, at
least financially, as if they hadn't been joined. And in
as much as costs do have a gap between the usual
party/party basis and an indemnity basis, it is the one
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thing that the courts can do to address at least that
kind of behaviour.
Mr Johnson has been exquisitely sensitive of the
alleged breaches of his own human rights and he's waxed
long and large over several days before this court about
that, but he overlooks the fact that the most noble
invocation of human rights is to defend the human rights
of others. And in this case, where no one doubts Mr
Johnson may be terribly aggrieved by matters arising
between him and Ms Cressy, he has apparently shown no
compunction and no sensitivity to the rights of the legal
practitioners of all people who had the mishap to
actually go about doing their job to represent a
litigant.
He has had no compunction in stating so it echoes
around this room for the last several days the kinds of
what I call expensive words. I call them expensive
because had they been said on the street down in William
Street in a sufficient volume, that could have led to
very expensive consequences for Mr Johnsons potentially.
However, because they're said under the privilege of
legal process he gets to say them for nothing. And as I
say, it's one thing to say, "Well, no one need take it
seriously, the 2nd and 3rd cross defendants have won
their case."
The law doesn't hold that that's necessarily the
position. Legal practitioners therefore may not plead
fraud unless they have been satisfied themselves of
evidence that makes out that case, and that in my
submission is an acknowledgement of the seriousness
within which the law says, "Well, we'll give you the
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privilege to say that without being open to defamation or
liable, but in return you the pleader have to observe
your own restraint in doing that." That perhaps, if you
like, in Mr Johnson's language is a form of human rights
to use the language that he invokes, and he has not taken
the slightest step to afford those rights to the legal
practitioners, whatever be his complaints against
Ms Cressy.
Now, in that regard, I had cross-examined Mr Johnson
from pages - and I probably don't need to waste Your
Honour's time by looking at it, I can give Your Honour
the transcript references - from p.878 until 887 of the
transcript, and I can tell Your Honour that I referred
Mr Johnson to Exhibit H2, which was a letter from him to
Richard Anderson at Harwood Andrews of 17 March 2008.
And in it I referred him to Paragraph 7 of it, where
Mr Johnson was noting that Harwood Andrews were
pigheadingly continuing to purport to represent
Ms Cressy notwithstanding the mounting illegalities of
this, that he didn't approve of that.
He repeated that in Paragraph 7D, and at Paragraph
10 came the threat: "Do not be surprised" - and this is
at p.880 of the transcript or in Paragraph 10 of Exhibit
H2 - "Do not be surprised by the consequences of this,
which is likely to be a substantial hit to your firm's
bottom line." Your Honour having made Your Honour's
judgment, I'm seeking to ameliorate the potential hit to
that bottom line that's brought about by Mr Johnson's
conduct.
I can also refer Your Honour to p.883 of the
transcript, Exhibit 38. Harwood Andrews were not the
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recipients of a similar kind of disapproval and threats
of joinder. I refer to that only to show that it is a
course that Mr Johnson had resort to, that because he has
agreed - and I don't doubt for a minute the subjectivity
of his sense of grievance - he then takes the step of
saying, well, any step he takes, no matter whether it's
unfair or properly pleaded or properly brought at law,
appears to him to be justified. Why? Because he is the
subject of an unfair claim by the plaintiff.
The 2nd and 3rd cross defendants do not for a minute
buy into the dispute between the plaintiff and the
defendant. They say merely that if the defendant has
been ill used, Your Honour is hearing the matter, he will
win the case with costs in the usual manner.
Unfortunately the point of view that says, "Because I
have a sense of grievance, that justifies any step I then
take to the point of joining legal practitioners who may
be professionally involved in the matter," that is where
we say the trigger highhanded of behaviour resulting in a
right to indemnity costs arises.
The final example that I refer to in cross-
examination of Mr Johnson was at p.886 of the transcript
where I referred him to Exhibit 36 and this, perhaps was
less of an intimidatory statement than of a concession.
Exhibit 36 - - -
HIS HONOUR: It's a letter of 6 March.
MS SOFRONIOU: That is so Your Honour, Paragraph 2 should begin
"You use the word 'choice' a lot in your facsimile".
HIS HONOUR: Yes.
MS SOFRONIOU: Further down in that paragraph, Mr Johnson has
written "I issued proceedings against Hanlon & Harwood
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Andrews on 18 February 2008 by way of cross-claims in
Supreme Court proceedings No 9665/2007 in which I am
defendant by original proceedings". This is the relevant
bit, Your Honour. "I did so in desperation, due to
Ms Cressy's, Hanlon's & Harwood Andrew's refusal to
negotiate discuss the situation as sensible adults and to
clarify your claim against one or two of my properties."
Pausing there, the idea that the refusal to clarify
a claim results in these kinds of extraordinary
allegations of all but criminal and fraudulent and
malicious conduct is what again tips this matter into
more than just a normal costs outcome.
Your Honour, there were additional concessions of
the kind that I again, I don't propose to take Your
Honour to, at different times Mr Johnson has acknowledged
the incomplete or inadequate nature of the cross-claim.
He's usually done so in an attempt to widen the
allegations made, but I also rely on that as being an
acknowledgement that this, in fact, does fall within the
Exhibit 36 attempt. It really is a half-baked attempt to
try and get some attention of the kind that he wanted
and, in fact, a refusal of Mr Hanlon and Harwood Andrews
to act any further and, to some extent he's achieved that
because, of course, having become parties they did in
fact cease to act, so what he couldn't do by asking, he's
done by bringing these claims which Your Honour has
dismissed without there being a case to answer.
My authority for stating that - sorry Your Honour,
it was Transcript 296, the reference to cooking up the
cross-claim draft that I've just referred Your Honour to.
My authority and again, I don't have multiple copies of
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these, having just turned it up Your Honour but I'm happy
to, having shown Your Honour, for Mr Johnson to have it,
is Australian Guarantee Corporation Ltd v. de Jager,
J-a-g-e-r, a decision of Justice Tadgell of this court
dated 23 March 1984. It's reported in Vol. 1984 of the
Victorian Reports, at p.483.
The bulk of the judgement is of no help to Your
Honour - - -
HIS HONOUR: Yes.
MS SOFRONIOU: - - - it was effectively an enforcement action
by a finance company against two mortgagors, a husband
and wife.
HIS HONOUR: There was some forgery or something of the -
wasn't there, in that case.
MS SOFRONIOU: Yes. The finance company had wanted to proceed
against husband and wife, notwithstanding that they had
evidence before them to show that her - the witnessing of
her signature was not a valid one and amounted to,
effectively an equitable fraud, notwithstanding that they
had that information in their own possession, they
proceeded with the case to enforce.
The story came out, the wife succeeded and at the
very end of the judgment at p.502 and this is the
relevant part for Your Honour's purposes, Justice Tadgell
states "Secondly, counsel has submitted that
Mrs de Jager's costs in the action brought against her by
A.G.C., should be ordered to be taxed as between
solicitor and client. I agree with that, upon the facts
as I have found them, the pursuit of the action was, in
my opinion, a high-handed presumption. In the end it was
conceded for A.G.C. that Mrs de Jager's signature was a
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forgery. Having pursued the action with the knowledge of
French's conduct" - that's the relevant officer involved
in the forgery, Your Honour - - -
HIS HONOUR: Yes.
MS SOFRONIOU: - - - "that it had and failed A.G.C. allowed
itself a luxury. The court ought to do what it can to
ensure that Mrs de Jager is not out of pocket over it."
I'm happy to hand that up to Your Honour.
HIS HONOUR: No, I'm familiar with it, you might provide it to
Mr Johnson.
MS SOFRONIOU: Certainly, it's the final page of the judgment
that I'm handed over now.
HIS HONOUR: Your reading it out was to (indistinct) the
authority.
MS SOFRONIOU: Thank you, Your Honour. The final point in
this - - -
HIS HONOUR: I have some recollection when Mr Johnson was in
the witness box, I was concerned about the nature of the
allegations he was persistently making, and that I raised
with him, his knowledge of the ethical rule that
allegations of fraud and the like ought not to be made
save on a sound foundation, and my recollection is that
Mr Johnson has stated that he is familiar with that
principle.
MS SOFRONIOU: Yes, Your Honour. And in fact one doesn't need
to be - I can find - - -
HIS HONOUR: You don't really need to have that drawn to your
attention by a judge, I would have thought, if you've
been working in this profession for the better part of
two decades.
MS SOFRONIOU: In my submission, you don't need to be a
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professional advocate to understand that banding around
allegations of fraud isn't done lightly, as I say, try
and do it outside of a court room and serious financial
practical consequences can enew That's general law that
people on the street are aware of.
HIS HONOUR: The basic principle stems from the fact that it's
really a responsibility that is a part and parcel of the
privilege that practitioners have in court documents and
the court to make particular allegations, and they are
grave and serious, and practitioners may only do so where
there is proper basis to do it.
MS SOFRONIOU: That so, and I think it's Rule 1310.3 that
addresses that. Your Honour doesn't need authority from
me. I have it, Your Honour, does - that says that fraud
should not be bandied around the court and should be
withdrawn if it's not made out. The final point that I
have and I will close on this, Your Honour, I want to
make the point for the benefit of those who are sitting
behind me who have been hearing all of this and haven't
been able to speak for themselves, it will be a fine day
when any solicitor coming to do their job because they
are giving legal services in a very emotional
environment, the idea that they can be exposed to fraud,
when one comes back to it what is the claim even at it's
height, Mr Johnson was worried about the basis for the
caveat over Queen Street; the caveat that wasn't even
over Queen Street at the time when the - - -
HIS HONOUR: - - - sale to Mr Cudmore.
MS SOFRONIOU: - - - sale of that property was there. That
doesn't deter him. He so wants to know what the claim is
like. How can one possibly represent such a - and I
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don't need to repeat the (indistinct) that he has thrown
at the plaintiff. Well I can tell Mr Johnson, that as
counsel, because of the cab rank rule we represent a
whole lot of people that may not be considered ultimately
honest or popular or likeable or nice in some kind of way
and solicitors in practice, although they don't have a
cab rank rule, are in no better position in some ways;
particularly in a family law or in a relationship area,
the kinds of emotions and the kind of difficulties that
that involves, you would think would carry enough of the
stress and difficulty just by doing your job and getting
involved in the maelstrom of the parties' emotions to
then be exposed to personal attacks on the basis of fraud
and malice which have to be notified to your insurer
which become a matter of potential professional
discipline interest which trigger all kinds of financial
consequences and then to sit in court and hear the
proceedings extended day upon day upon day as Your
Honour's directions are repeatedly ignored, all I can say
is Mr Johnson will never understand perhaps the
forbearance that he has been offered.
I hope the transcript will reveal that I have tried
to give him notice of my applications and warnings as
much as possible and as for Your Honour's own
forbearance - - -
HIS HONOUR: Yes, I think I may interrupt you for a minute. It
has been clear that you have shown extraordinary
forbearance on behalf of your clients; that you have
extended to Mr Johnson every consideration; that you have
gone beyond your ethical duties in seeking to advise him
well in advance of matters which you did not need to
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advise him of so that he is prepared to meet them. In
that way you have honoured the highest traditions of the
legal profession and the Bar.
MS SOFRONIOU: I am indebted Your Honour but I suppose the
point being made that - rather than fishing for that as
it were - - -
HIS HONOUR: No but - - -
MS SOFRONIOU: The forbearance that he's been shown has meant
that the case has lasted as long as it has in the face of
conduct where had anyone in horse hair tried it, we would
have been down in the cells cooling our heels until we
purged our content.
HIS HONOUR: Without doubt.
MS SOFRONIOU: But, Mr Hanlon and Harwood Andrews have, in a
sense, had to, and again they were parties - they're part
of this - they have had to sit there while that's
happened. The only thing the court can do in light of
Your Honour's judgment is to adopt the approach of
Justice Tadgell in my submission and to say as much as
it's possible Mr Johnson has vented his spleen; he has
expressed his protest; he has invoked litigation
procedure; and he's had his day in court. No matter how
inexperienced a practitioner he is he's had forbearance
but the rules of fairness do not deter because he's an
advocate of 11 or 12 days or whatever it is and having
had that luxury, if I can call it that, given that there
was never any case to answer, I would ask that Your
Honour put these parties in as much of a position as if
it hadn't happened and in that regard a costs order in
their favour other than the usual party/party one that
most fully indemnifies them is the one thing that perhaps
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will lead to that result in my submission.
HIS HONOUR: Thank you Ms Sofroniou. Mr Johnson.
MR JOHNSON: Thank you, Your Honour. Ms Sofroniou is clearly a
gifted orator but I must say I had some concerns.
Amongst her gifts she has misconstrued my position and
myself quite substantially but I'm quite used to that
these days, Your Honour. If I may run through, kind of
in reverse, last in, first out, the points that
Ms Sofroniou made, I've not said that the conduct of -
sorry no I'll pass on that point. Lets go to p.878-887
discussion of the transcript - - -
HIS HONOUR: Sorry, what page?
MR JOHNSON: Ms Sofroniou was discussing Exhibit H2, Your
Honour, and a passage where Ms Sofroniou had me under
cross-examination which is transcribed at pp.878 to 887.
I was pointing out to my good friend, Richard, the
chairman of Harwood Andrews that they were being very
pigheaded in promoting Ms Cressy's actions against me,
given that it was quite clear that I had no case to
answer to Ms Cressy's claims. She had no evidence within
Briginshaw or any other standards of proof that a
plaintiff has to comply with in this jurisdiction I used
to believe in terms of necessity to state a case before a
defendant even has to answer it.
Ms Sofroniou said words to the effect that whatever
the unfair claim by the plaintiff against me - now I'm
wondering was that a statement by the counsel for the
former lawyers - the original promoters of Ms Cressy's
wild unsubstantiated claims against me. Was that an
admission that the plaintiff's - - -
HIS HONOUR: Mr Johnson, yet again, you may have twisted it -
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what has been said in court. What Ms Sofroniou and I
were saying was no matter what your subjective feel is
about the fairness or otherwise that the claim by
Ms Cressy against you it did not justify you making wild,
unsubstantiated allegations against her client under
cover of privilege.
MR JOHNSON: Your Honour - - -
HIS HONOUR: That was what she said.
MR JOHNSON: Your Honour, your and my reasonable minds differ
on that, and that's an issue I'll take up at a next level
if my submissions in summarising the case don't succeed
before Your Honour in this trial.
HIS HONOUR: Certainly.
MR JOHNSON: Ms Sofroniou then went on to say that while
(indistinct) claiming at the plaintiff that would be
adjudicated by the court, and if he won his case he would
win with costs, that's the usual process, the usual
manner. Ms Sofroniou did say there, "If Mr Johnson
demonstrates" - no, it's the other way round, isn't it?
"If Ms Cressy's legal team fail to demonstrate her case,
she will lose the case, and Mr Johnson will" - I don't
think win is the right word ever in these circumstances,
but Mr Johnson would be entitled to his costs. That is
what Ms Sofroniou said.
The original legal team promoting Ms Cressy's wild
and unsubstantiable - still unsubstantiated, still wild
claims against me set out in the caveats and the original
statement of claim, they knew all along, they -
Mr Turnbull, perhaps at Mr Devries's involvement, drafted
an affidavit for Ms Cressy and at the 6th of - no, sorry
- yes, 6 June 2008 where she said she did not have the
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money to pay her lawyers' costs. "Please can we have
judgment without a trial, Mr Kavanagh?", on 20 June 2008,
"Judgment without the trial because I can't afford a
trial."
That affidavit is on the record. Harwood Andrews,
David William Hanlon knew all along, and this was the
nasty extortion sting in the tail, Your Honour. I could
go through the trial with Ms Cressy. Eventually I would
suffer all the commercial pain that I've suffered, I've
lost two of my properties, the banks have sold me up.
Even before the matter gets to trial, Your Honour, I've
lost, I've lost, I can't win my case, I have lost two
thirds, the most valuable asset in my property portfolio
I have lost. Now, sir, I don't need to talk to the Dalai
Lama, I need to talk to Geoffrey Robertson on this point.
Another tyrannies of trial, Mr Geoffrey Robertson
has written the biography of an amazing man, Mr John
Cooke. He was the man of common stock like myself, who
was charged with the brief to prosecute King Charles.
He's also the man who invented the privilege against self
incrimination, he did that at a trial - - -
HIS HONOUR: That book was written to exemplify the Cavran
principle, which is written (indistinct), but which
nearly every solicitor in this State of any reasonable
standing also (indistinct), but as Ms Sofroniou is
stating, it was not for her client to stand in judgment
of Ms Cressy's claim in accordance with this ancient
principle for which Mr Cook was hung, drawn and quartered
in excruciating circumstances. In honour of that
principle, solicitors throughout the State take on a
number of different cases without standing in judgment of
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their clients. That is the point made by Mr Cook, and
it's good that you call him to mind.
MR JOHNSON: Thank you, Your Honour, and it is indeed. On p.33
of his book in the chapter A Man of the (indistinct),
Geoffrey Robertson quotes an English translation of
Clause 29 of the magna carta, and according to the
British Library it's actually Clauses 39 and 40. The
original is in Latin of course, but Geoffrey Ellison
gives a translation, and I won't say the words aren't
relevant here. "No free man shall be deprived of his
freehold or liberties or otherwise destroyed, nor will we
pass upon him or condemn him but by the lawful judgment
of his peers or by the law of the land. To no man will
we sell, to no man will we deny or delay justice or
right."
Now, I have actually been deprived of two of my
freeholds before judgment has been passed on me. I have
been deprived of the ability to present my case properly,
because I don't have litigation funding lawyers who are
happy to drop down $300,000 worth of time on a timesheet
and require the plaintiff to only put up $3000 at the
commencement of the proceedings. They promoters will be
- whatever orders Your Honour makes, quite obviously if
they're unfavourable to me in any way, shape or form I
need to appeal them.
But if my appeals are unsuccessful, the litigation
promoters are successful, it won't be an adjustment of
any assets from myself to Ms Cressy, it will be an
adjustment of my assets straight to the litigation
funders. Ms Cressy will have her debt, her considerate
debt, over $300,000 to them reduced not even by a third,
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Your Honour. She will owe them four or five times as
much as what the litigation funders extract through this
court process out of me.
Now, Mr John Cooke also wrote the first ever ethics
treatise in the English language actually, not the old
Norman language the lawyers used in the 1640s, the
vindication of the professors and the profession of law.
Now, that is described by Mr Robertson in Chapter 3. I
do have a copy, the only copy in Australia was actually
in the New South Wales State Library, I tracked down a
copy, I have a copy on my desktop, I'm in the process of
translating it into modern English for publication with
annotation, subject to whether the recognition Geoffrey
Robertson wants for his amazing work in that book and
bringing my attention to it.
My human rights legal practice firm, Sutton Lawyers
Proprietary Limited, works on that basis. Apart from
myself there are two other people that I'm assisting.
Human rights atrocities, surprise, surprise, derive from
the Family Law Court jurisdiction, Your Honour. I'm
assisting them on a pro bono basis as per those
principles set out in Mr John Cooke's vindication. I've
also founded a law reform and human rights organisation,
One Law Foundation, it is dedicated to a number of
things, dealing with human rights and the protection of
victims of human rights abuse (indistinct) the government
and by the court and legal process.
The first one of those is this embarrassing
situation we had where today Australian lawyers, court
lawyers are the only court laws in English speaking
countries who can't be sued for negligence or other
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myself in years to come can take the complaint to the
United Nation Human Rights committee. The United Nations
- - -
HIS HONOUR: Mr Johnson, I've allowed this diatribe to continue
now for 15 minutes which is yet another waste by you of
precious court time. I've done so, to try to see whether
there's anything in it which might answer the submissions
made by Ms Sofroniou and I'm afraid I haven't been able
to find anything. I've also interrupted to try to give
the short hand writers a little bit of a rest from your
very fast spoken and irrelevant diatribe.
But most importantly, I've done so because it's
important that you focus your mind on the points made by
Ms Sofroniou who's made a claim by her client against you
for that I make an order for solicitor client for
costs. Which is done so on a number of basis, the
Calderbank offer, the gravity of the allegations made by
you against your client which I have found to be entirely
unsubstantiated, so much so, that I've exceeded to her
application to dismiss the case on a no case basis. On
the fact that you have taken an extremely serious step in
bringing to court and suing practitioners who are doing
nothing more than acting as they are required to act for
a client in litigation against you.
On the additional basis that you have wilfully
flouted directions and rulings by me which have been
designed to try to shorten this case so that hopefully by
the end of the case, something is left for the parties,
rather than have the mortgagees of these properties take
them in the meantime. All those basis are being put by
Ms Sofroniou in the clearest terms so that you can
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understand them and that you can respond to them. Now
you're simply not assisting yourself in responding to
those submissions by the type of speech that you've just
made to me. I invite you to direct your mind to the
applications made. It's a serious matter for a judge to
order solicitor/client costs on a basis in a case such
as this, particularly with a litigant against whom that
application is made, is self represented.
It's important that you use your legal knowledge and
your expertise in trying to answer Ms Sofroniou's
submissions. Judges are assisted by competing arguments,
they're not assisted by the type of emotional speech that
you have made, simply to try to vent your own feelings in
this case. Now, focus on the submissions and reply to
them, please.
MR JOHNSON: Your Honour, I was in the process of reassuring
Ms Sofroniou that I may focus on - - -
HIS HONOUR: Ms Sofroniou needs no reassurance. What I need is
argument. Judges are assisted by argument and I do not
want to do an injustice in making costs orders which had
you addressed me proper arguments, I might not make.
Now, I do this for your own good. Just concentrate on
the substance of your arguments and rebut them if you
can.
MR JOHNSON: On the first of several of Ms Sofroniou's
submissions which I wish to rebut, I wish to say that
while I may have waxed on about my own human rights being
violated, but I am also (indistinct) in the protection of
human rights of others. But from a law firm and through
my law reformed human rights foundation. The second
point, Ms Sofroniou suggested that the things that I've
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said about David William Hanlon and Harwood Andrews
Family Lawyers would be expensive words if I said them in
Collins Street and I'm being somehow (indistinct)
underhanded by saying them here at the Bar table under
privilege. Well, the first privilege that one law
foundation is looking to strike down so that the Common
Law of Victoria and Australia is like the common law of
other English speaking countries, is the right of the
dentist to sue the doctor, the same way that sorry
for the dentist to sue the barrister the same way that
the barrister can sue the dentist.
I'm embarrassed to have that privilege. I should be
accountable to the highest standards of the law, I should
even set an example, I should be accountable as an
officer of this court, even higher standards than the
ordinarily laws of negligence or the ordinary laws of
defamation. I'm embarrassed. I don't want that
privilege against being better than or above the laws of
defamation that apply to ordinary people in this country,
Your Honour.
I would also say that I thank Ms Sofroniou for her
words, saying that my defence and counter claim are half-
baked. They are half-baked, I've been saying that, not
in such an equivalent little package, half-baked. They
are, Your Honour, words that were produced by me in a
handful of minutes. With a handful of nights sleep, a
handful of minutes sleep, in order to get something in
paper for a Practice Court Trial. A hearing in a
jurisdiction's court that I didn't even know existed,
until I received the paperwork from Harwood Andrews.
I had really they were just drafting points.
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Facts that I was concerned about that would then be given
to, as I saw it, an experienced qualified litigation
lawyer, (indistinct) someone who opened a book of
pleadings in the last two decades Your Honour. Certainly
someone other than myself to translate those into
legalese.
I accept the difficulties with that document. I
never went back and amended it personally because I
didn't feel that I had the required expertise to do it
myself. I would take something that was half-baked and
make it even worse. I always thought and even on 2
December, when this hearing deceivingly set down for a
two day trial, notwithstanding that the pleadings weren't
settled.
The fact that the plaintiff goes on to amend the
statement of claim two days later, I think, vindicates
him in saying that neither party's pleadings were
settled. There'd been no directions for discovery. Your
Honour, I discovered three bagsful of evidence that the
plaintiff had stolen and concealed so that I couldn't use
them in evidence. Not that she had stolen or got by any
means to prove her case. Not that I needed possession of
to disprove her case because I don't have to disprove
anything against the plaintiff, Your Honour. I can just
speed things up. I have done so I believe with the
exhibited material from my examination-in-chief of
Mr Ioannou and I have by delivering up those three bags
of stolen loot.
Now, if ever there was a proceeding that was not
ready to go to trial on 2 December surely this is that
one. I tried to make that application to have what were
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really the one case spread over two sets of pleadings
because of the way it worked brought together. I made an
application that was listed before Master Evans on
1 December last year. That, Your Honour, is the only
hearing in all of this court process that I have had
notice of that I have not turned up to without notice. I
did not attend a directions hearing before Master Kings
and I sent a note explaining why I wouldn't be there. I
did not attend the second part day Practice Court hearing
on 14 July. There had been a whole day practice hearing
in the Practice Court before Justice Kavanagh on 20 June
which Justice Kavanagh himself said in the opening
minutes of that morning that was an abuse of process.
Hearings in the Practice Court are meant to take no more
than two hours total.
So it was just extraordinary. I still don't for the
life of me understand what happened that day. How the
judge could exercise his limited jurisdiction so
expansively. Make orders effectively judgment without a
trial, Your Honour, and without following proper process
not only of this court but the Practice Court
jurisdiction - - -
HIS HONOUR: That has absolutely nothing to do with
Ms Sofroniou's application and you know it. You just
focus on her arguments.
MR JOHNSON: The point is Ms Sofroniou is suggesting that I
acknowledge that my pleadings were an half baked attempt
to intimidate or get Harwood Andrews off the file.
That's certainly not the case. They were half baked
simply because I do not have the skill personally nor, as
it turned out, do I have the resources. I might pause at
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this - - -
HIS HONOUR: Mr Johnson, however they were drafted they
contained what could only be very serious allegations
against anyone. Involvement in theft is itself an
allegation of criminality. Fraud, malice which run
throughout it. You are a lawyer. You know the meaning
of those words. You chose to put those words in a
document in February 2008. The case was in and out of
this court on different interlocutory applications during
that year. It's not as if it went to sleep and you came
to court on 2 December on that pleading. I have
constantly reminded you throughout the case that common
law courts decide cases on pleadings. They're the
allegations you came to this court to sustain. They're
the allegations which not only failed but in which
there's not a scintilla of evidence in support of them.
MR JOHNSON: Your Honour, they are the allegations - - -
HIS HONOUR: They were not just infelicitous words and in my
view it is, with respect, disingenuous of you to suggest
that. They were plain ordinary words which have
particular meanings well understood by any lawyer that
has not even finished their articles.
MR JOHNSON: Your Honour, may I say two things in response.
The first is I came to this court on 2 December with
those words in a document. Much better words in another
document. The pleadings in the other half of this case,
9263 of 2008. In expectations that finally after all
this time given that it'd been misleadingly informed to
the court in my absence and me not even being told about
the (indistinct) for two months after it had been set,
expecting that we would get some orders for directions at
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the very least, a date by which pleadings had to be
settled and other directions for discovery and the like.
I did not come to court on 2 December to argue my case
based on that - - -
HIS HONOUR: You came to court with a case that had been set
down for trial and I was conducting the trial and you
knew it.
MR JOHNSON: My submissions of that morning which were hijacked
by a very embarrassing preliminary application by Mr Rees
which he had no standing to make under Order 15. An
ambush, Your Honour, certainly no right to make it on the
morning of what you'd planned to be a trial date, Your
Honour, as it was officially listed. We wasted a lot of
time there. A distracted time from the real issue which
was how to make sure that all the pleadings were put
together in a proper order so that it is tried once. Not
in this situation we have now where a little bit of the
case has come forward. The bulk of the case is yet to
come. That is the reason I came to court on 2 December.
Now the second point I wanted to make - I've
actually lost that point, Your Honour. Is there some way
Your Honour might be able to prompt me on this
second - - -
HIS HONOUR: I'm not sure what point you're about to make.
MR JOHNSON: It's difficult. There's so many points flowing
through my head at the moment, Your Honour.
HIS HONOUR: Well I've explained to you the points that
Ms Sofroniou. One is on the Calderbank offer. Secondly
effectively was on the allegations made by you not only
in your counterclaim but from the privileged position at
the Bar table totally unsubstantiated. The next point is
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the purpose for which you brought this proceeding to
intimidate Harwood Andrews out of doing what they are
required to do. That is act for their client. The next
matter she raised was your conduct which has protracted
this hearing. I probably haven't done full justice to
all the arguments advanced by Ms Sofroniou but they're
the major points that she has advanced in favour of an
order for solicitor client costs against you.
MR JOHNSON: Thank you, Your Honour. I've found my point in
that process.
HIS HONOUR: Good.
MR JOHNSON: I'm indebted. There was a suggestion that I had
some knowledge that fraud and malice were naughty words
for a lawyer to use unless he's got all of his evidence.
As I say I am not experienced by any means despite
producing a 167 page defence and counterclaim in the
other proceedings. I've read some pleadings - books on
pleadings since the night that I cobbled together the
defence - amended defence and counterclaim that went on
to trial, Your Honour. It wasn't until much - February
last year, reading through this book by Christine Parker
and Adrian Evans, two academic lawyers, Professors of
high regard Christine is actually an active barrister
as well, Inside Lawyers Ethics.
There is an amazing chapter that describes the
problems in the profession, with what is referred to as a
co-regulation with profession by the Legal Services
Commissioner quite extraordinary I am talking to the
chairman of the commission Mr Colin Neave A.M., over
that, and indeed, with the Attorney-General.
We are in dialogue. It wasn't until I read this and
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the difficulty of it is crazy to bring an application
based in fraud, Your Honour, because it is impossible to
get the proof, unless you are in the fortunate position
of someone like White Industries where Mr George Herscue
his group - I think, that the little subsidiary
involved there for Caboolture Park Shopping Centre went
into liquidation.
Normally those sorts of communications which hark
back to the questions I have tried to put - well, I did
put to Mr Hanlon I put some of them there was no
point continuing with my list of questions because the
answer came back "It's privileged, it's privileged".
Privilege was waived on that occasion by Caboolture
Park Shopping Centre Pty Ltd, because it was in the hands
of the liquidator and by spilling the beans on the
naughty things that the Flower & Hart law firm did, and
the senior barrister Dr Ian Callinan, who of course, now
sits on the High Court, hearing cases about ethical
issues such as the Daughter v. Denke case in 2005, which
re-affirmed that Australian speaking Australian lawyers
are more special than English speaking lawyers in other
countries, and no, dentists can't sue barristers in
Australia, even though English dentists can sue English
barristers.
The naughtiness there was exposed, - the beans were
spilled, - because the liquidator of the Caboolture Park
Shopping Centre wanted to get some money in for his poor
defrauded creditors, so he sold the privileged
information to the party who was damaged by it, being
White Industries Pty Ltd.
That occurred after the trial had been heard. It had
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been established that the proceedings that the Caboolture
Park Shopping Centre had issued against White Industries,
the builder of the Caboolture Park Shopping Centre, had
no prospect of success. It was known all along by the
lawyers. White Industries had already won that case Your
Honour. It was solely at the point of working out what
their costs would be. That is the point at when the
liquidator sold the beans on the naughty lawyers who
briefed them to run that scandalous case.
It was only on that basis that the naughtiness of
the lawyers were exposed. The privilege was lost. Now,
unless you are unfortunate well, I guess no one is
fortunate in that circumstances victim of case like
that - of unfortunate, unwilling, reluctant defendant
even if he'd become a plaintiff by counterclaim like I
had to defend yourself, you are very unlikely to get that
privileged material.
Now, I did put some questions to Mr Hanlon as to
my thinking would be that whatever evidence could have
been available to justify the decision to issue caveats
and issue proceedings in respect of Miss Cressy's claim
the maximum amount of evidence that would have been
available at any point of time, is the evidence that has
been given to you in this proceeding, Your Honour.
Now, I don't believe that there is any question of
legal professional privilege attaching to me asking how
that evidence was obtained, if it is hard evidence rather
than oral testimony by a person of dubious credibility,
but we will come that in submissions Your Honour. I don't
think there is any privilege attached - - -
MR DEVRIES: Your Honour?
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MR JOHNSON: - - - to asking of what point in time I would
ask my learned friend not to interrupt at this - - -
HIS HONOUR: No, well, it seems to me, I think Mr Devries
is about to raise a legitimate matter, because you are
simply getting far away from meeting the sovereignised
point.
MR DEVRIES: I have been sitting back because essentially this
matter doesn't involve my client, except for the fact
that we have to sit through, waiting for our matter to
resume, while - - -
HIS HONOUR: I understand that.
MR DEVRIES: - - - we go down a path that, in this particular
case, is directly abusing Your Honour's rulings on
privilege. He is trying to go behind you on this rulings.
HIS HONOUR: I understand that.
MR DEVRIES: And, apart from it being, my respectful
submission, a further contempt of this court, it is a
total waste of time, and it is time that should be better
put, in my respectful submission, with getting on with
things that are properly before this court.
HIS HONOUR: Well, Mr. Devries, I thank you for your objection.
It is a legitimate and proper objection. The fact of the
matter is, that I have, throughout this protracted case,
warned the defendant time and time again, that he must
firstly address the issues in the case, and secondly, as
he full well knows as an experienced lawyer, when a judge
makes a ruling, whether he likes it or not, that ruling
binds them.
Ms Sofraniou, I was absolutely right and I said it
yesterday, if Mr Johnson was a member of the Victorian
Bar, he would be cited for contempt, and I would be very
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surprised if he would be at liberty. His conduct in this
case has been so grave in disregarding rulings I have
made. It had been deliberately calculated to try to de-
rail this case.
He understands that as an unrepresented litigant,
there are certain liberties and platitudes made available
to him. I think not only I, but you too, Ms Sofraniou
and Mr Devries, have extended that latitude to him and
shown extraordinary patience, that he has abused that
time and time again. So I, with respect, agree with your
objection and I uphold it.
I can do no more than adjure Mr Johnson to again try
to do himself some justice by addressing the points made
by Ms Sofraniou. He is not responding to them, so those
points will stand as good points.
MR DEVRIES: May it please Your Honour.
HIS HONOUR: Thank you Mr. Devries. I am assisted by your
objection.
MR JOHNSON: Your Honour, I would like - - -
HIS HONOUR: Did you hear that, Mr Johnson?
MR JOHNSON: I hear every word that is said this morning
Your Honour.
HIS HONOUR: Yes, well it is getting to a stage, frankly, when
you are getting very close to contempt of court and I
don't say that in terrorum at all, but there is a fair
warning you must obey the rulings I have made there
is no sense in arguing against them. The work of this
court would be impossible if parties and practitioners
constantly flouted rulings of judges, whether they like
them or not.
You are bound by my rulings. The second point is I
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said to you it is probably close to half an hour ago
after you had already proceeded for 15 minutes on
irrelevant diatribe, that it is not helping you not to be
addressing the points made by Ms Sofraniou.
They are straightforward points, and it's important
you do that. Now, if you continue to abuse your
privilege position behind the Bar table, I will again
reluctantly have to sit you down, because you are not
assisting, and the rest of this case must be heard and
completed. This court's time cannot be wasted in this
unconscious able manner by your conduct.
MR JOHNSON: Your Honour, may I - - -
HIS HONOUR: A duty not just to Mr Devries' client,
Ms Sofroniou's client, and to yourself, but to other
litigants waiting in the wings for me to be available to
hear their cases, many of which are very pressing. Now,
you proceed.
MR JOHNSON: Your Honour, may I say three things at this
juncture? The first is the suggestion that my use of the
words "broad" and "malice" towards Harwood Andrews was
inappropriate. I did not have the knowledge of the
difficultly before application, I did not have an
expectation, even on 2 December, that those words would
be the words that we'd be going to trial to. I said that
a few times, I need not repeat it. Sorry, I've already
spoken on my embarrassment at having any more privileges
here at the Bar table than I would have at the corner of
Collins Street and Elizabeth Street, Your Honour, I think
that's a travesty.
I will be submitting in my submissions that it is
manifest, even at this stage of the trial, and should be
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manifest at the outset, let alone the key decision
points, when proceedings were issued, when caveats
were issued, that the plaintiff just can't sustain a case
against me. I've got no case to answer against the
plaintiff, Your Honour. I believe that's the point
at which the fraud and the other nasty stuff
becomes manifest.
I don't have the luxury that White Industries have,
I don't have access to written communications from
Harwood Andrews to Ms Cressy, to the effect that, look,
we don't think you've got a case, but hey, look, this is
a very complex, painful process for any man to be
subjected to, we can subject him to that, and he will pay
out hurt money. I don't have any correspondence from
Harwood Andrews to Ms Cressy though, but I do have quite
a bit of correspondence from Harwood Andrews to
Ms Cressy, including a couple of documents that I handed
Mr Hanlon in the box yesterday, because they were left
behind in the mess with the stolen loot and the
handwritten memoirs that expose 90 per cent of what she
said in the witness box to be perjury, Your Honour.
I do actually have those communications, but just
not quite as lucky enough, and look, I don't want to
embarrass my former friends at Harwood Andrews of
explaining the nature of the correspondence that I do
have, and why it doesn't go into that sort of area, but I
missed it by this much, Your Honour, in terms of being a
fully empowered White Industries person, the difficulty,
of course, being that I didn't become empowered until
gees, I found this documentation when did I find it,
Sunday, just Sunday gone by, just four days ago, Your
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Honour, that's when I found it.
Now, I don't know how that would fit into the scheme
of things, whether it anyway, I'll let that pass. I
don't have the actual memorandum of bias from the
Dr Callinan in this case to the partners at Flower & Hart
in that case, telling Ms Cressy in that case, look, your
claim's worthless, but you can bugger the guys around and
delaying commercial tactics, and that may put you in a
better negotiating stance when you were sued, because you
were blatantly doing things which are not legal. I just
didn't don't have that memorandum.
I doubt very much whether one would have been
prepared in the circumstances when Ms Cressy has only
paid $3000 and been given 300 grand of legal work written
down on credit. My last point I wish to make on all of
this is that I will be, in my submissions, asking Your
Honour yet again, and it's something that I'll be taking
up with the Court of Appeal as part of my general
application, appealing the orders that Your Honour has
already made last week and this week in these
proceedings.
Your Honour said on 3 December, I believe, in the
context of Ms Cressy's application, Mr Devries moving it
to amend her statement of claim on the second or third
day of the trial, Your Honour educated me to the effect
that pleadings can be changed, even right up to before
judgment is given, provided no injustice is done to the
parties.
Now, the parties, and that includes Ms Sofroniou's
clients as well as Mr Devries' clients, have known all
along that I've been I'm the White Industries man who
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just doesn't have the smoking gun memorandum from the
Dr Callinan in this case saying that this is vexatious,
this is fraud, your client has no evidence. She could
not have had sufficient evidence back then to justify
caveats or writs being issued because she hasn't got
sufficient evidence in court today. It's manifest, it
speaks for itself, res ipsa loquitur, Your Honour. My
submission's been very clear on that point.
So on that basis, the orders Your Honour made this
morning of no case to answer, all that really does mean
is when I win my case and cost and damages are awarded to
me by Your Honour against the plaintiff, the plaintiff,
ho, ho, chuckle, chuckle, as per her sorry, unintended
pun there, Your Honour, her affidavit filed in these
proceedings dated 6 June this year, I won't go into the
embarrassing content of that affidavit, because that
hearing has passed, the plaintiff can't meet any order
for costs or damages.
The plaintiff got interlocutory relief. When I
challenged the fact that she couldn't even meet an order
for costs and damages, she was still given the relief,
Your Honour, it's extraordinary. The lawyers have known
all along, therefore, on Callinan's principles, if Your
Honour does allow me to substitute the words
"malfeasance" for the words "fraud" and "malice" in my
counterclaim, which I'll be asking you to do in
submissions later on, Your Honour, that will give
me - - -
HIS HONOUR: The counterclaim has now been dismissed,
Mr Johnson.
MR JOHNSON: That would - - -
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HIS HONOUR: I've delivered judgment in it.
MR JOHNSON: That would give Mr Devries personally, and
Mr Turnbull and his firm, some benefit, because not only
putting my hand into their pockets with an application
for costs, I'm not quite sure what we do with damages
yet, I don't think we've got that far, Your Honour,
against the individual members of Ms Cressy's current
legal team,
My ability to join in or keep in the family
Mr Hanlon & Harwood Andrews lawyers would mean that there
would be less money taken out of Mr Devries and
Mr Turnbull's pockets because there would be
contributions to my costs and my damages by the
originators of this very embarrassing set of proceedings
brought by the plaintiff.
So that's really an issue more for Mr Devries per
se, not even his client, Your Honour. Whether or not,
Mr Hanlon & Harwood Andrews are kept in these
proceedings, and you've already ruled on that, haven't
you, Your Honour?
HIS HONOUR: Yes I have and that's just one more ruling that
you simply ignored, edging ever closer to a contempt
citation.
MR JOHNSON: Your Honour did say on 3 December that pleadings
could be amended even up to - - -
HIS HONOUR: They may be amended. I have decided the case on
the pleadings between yourself and Mr Hanlon and Harwood
Andrews, I have decided that on the evidence adduced
there is no case to answer on any of the courses of
action pleaded by you and note the proceeding will be
dismissed.
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At the moment, I am hearing and I have heard an
application by Ms Sofroniou for costs - costs usually
follow the event and they would in this case but she has
also made an application for costs on an indemnity basis.
I have explained to you the arguments that she has made.
You have made a minimal attempt to even apply your mind
to them but rather you have sought to, yet again, waste
this court's valuable time by venturing into irrelevant
matters by further trying to blacken the name of other
litigants in this court.
Now simply, concentrate on the submissions made by
Ms Sofroniou or else I will have to shut you down. This
case has gone far too long, thanks to your filibustering
and time-wasting.
MR JOHNSON: Your Honour, I believe I have more than adequately
responded to six points coming out of Ms Sofroniou's
well-spoken submissions.
The last thing I wish to say before I sit down is
that really, Your Honour, given that the plaintiff has
not demonstrated a case for me to answer, there's no
substance, even at trial, let alone when proceedings were
issued or caveats issued, to justify the taking of those
legal steps by her lawyers. Just as - there's a
divergence of using the room as to what the relevant
issues are. There's a divergence of using this room as
to what this trial is really about.
Now, my view is because Ms Cressy simply doesn't
even have a case, that isn't the real issue that's in
these proceedings. The real issue is why and how these
lawyers, who (indistinct) her, they (indistinct) treat
her, Your Honour. She only put $3000 key money in right
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at the very start. She's now got a $300,000 plus debt to
the lawyers. Why they thought that they should run this
case. Were they hoping to find some evidence when they
went subpoenaeing and fishing through my personal bank
records off my banks?
MS SOFRONIOU: Well, I object to this - - -
HIS HONOUR: I agree, this is entirely irrelevant to the
application by Ms Sofroniou. You are, yet again, abusing
your position. And as I said to you, Mr Johnson, this
court does allow a degree of latitude to unrepresented
litigants. But you are no ordinary unrepresented
litigant.
You have come to this court as a solicitor of
20 years call, a solicitor who tells me he has a library
full of ethical books, a solicitor who has practised for
20 years. You have protested that you know nothing about
court procedure, yet when it has suited you, you have
shown, if I may say so, commendable ability in particular
regards.
You have understood the rule against Browne v. Dunn,
you have managed to lead five witnesses without asking by
and large leading questions. When I explained to you the
rule in Jones v. Dunkel, you have well understood it.
It seems to me with your commendable intellect, you
have been able, when you want to, to direct yourself to
the issues. You are deliberately diverting away from
them yet again and misusing, not only your privileged
position behind the Bar table, but the additional
latitude that I and counsel have extended to you because
you are unrepresented.
But that does not mean that you can continue to wax
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at large on this. I have warned you on a number of
occasions today that unless you address the submissions
by Ms Sofroniou and respect the rulings I have made, then
I will have to terminate your right of audience on the
basis that you are not addressing issues at all but using
this court as a forum just simply to vent your own
feelings and dislikes. Listen to that warning and adhere
to it.
MR JOHNSON: Your Honour, I feel over flattered by your praises
and - - -
HIS HONOUR: I'm not concerned with your feelings. Would you
please address Ms Sofroniou's submissions.
MR JOHNSON: - - -and over damned by your criticisms, I believe
I have fully addressed all of the relevant issues in
Ms Sofroniou's submissions and I'm quite comfortable to
take my chair.
HIS HONOUR: Thank you very much for that. Ms Sofroniou, would
you like to respond?
MS SOFRONIOU: I could, but I won't, Your Honour.
HIS HONOUR: No. I will also give judgment on the spot but I
think it might be wiser, given the - or if I try to see
if I can sift through what Mr Johnson has said and have a
bit of a think about it.
I think it is probably better that I give judgment
on the (indistinct). Perhaps if I'd stand the matter
down for half an hour. Is that convenient to parties?
MS SOFRONIOU: It's certainly convenient for us, Your Honour,
that - - -
HIS HONOUR: The alternative is I could reserve and give
judgment on Monday in your application which - - -
MS SOFRONIOU: Yes, whatever suits the court, we're in the
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processes if some process the court process we have
today can't accommodate some thoughts or some actions of
concepts that I've presented.
For example, Your Honour, the ruling that you're
giving now without reflecting on the transcript of my
responses which were delivered at probably about 400
words a minute in my speech, perhaps without looking at
the transcript in printed form on one side and Ms
Sofroniou's on the other side, perhaps the process isn't
great that Your Honour doesn't have the luxury of being
able to do that exercise before making your ruling.
Perhaps, the real abuse, the real pressure is the work
load on Your Honour is too great at the moment, too many
cases, not enough judges of your calibre Your Honour to
hear them all.
HIS HONOUR: Mr Johnson, this is irrelevant. Judges frequently
give extemporary rulings, indeed I could have done so in
your case on the application made by Ms Sofroniou however
the application made is for an order which is an
exception to the rule and I've thought it better that I
give it further consideration. It is also important that
I ponder what you had put to me to try and see whether I
could elicit from what I can only describe as a diatribe,
some argument which had some logical merit in response to
Ms Sofroniou's submissions. Now, do not be concerned
about the work load on me as a judge or about my capacity
to understand viva voce argument. These courts run on
viva voce argument and most of us have a lot of
experience in that. Now, unless you're going to proceed
to argue something relevant, I'll ask you to sit down.
MR JOHNSON: I did wish to finish that point and to clarify the
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points I made in my description of these proceedings in
analogy to the (indistinct) proceedings. I'm not sure
if Your Honour wants to hear that or whether I should
sit down?
HIS HONOUR: If you have any logical, meritorious argument to
make in response to Ms Sofroniou's submission that you
should pay the costs of her clients on a solicitor client
basis then you are at liberty to advance that argument.
But so far the last five minutes, you have not done so.
You've just deliberately sought to waste yet more time of
this court.
MR JOHNSON: Your Honour, this could be a little bit
inflammatory but does it really go it does go to the
application for costs on the extended basis. But that
application for costs on an extended basis piggy-backs up
Your Honour's ruling, surprising ruling, forgive me Your
Honour, that Mr Hanlon and Harwood Andrews have no case
to answer. I did say earlier this morning, here I go,
Your Honour, that I came within this close in discovering
in the mess that Ms Cressy left in my garage,
communications from Harwood Andrews and Mr Hanlon to
Ms Cressy of the calibre of the smoking gun memo between
Dr Ian Callinan and the Flower & Hart lawyers and the
(indistinct) complainant in those proceedings.
Now, this is where I'd be interested in Your
Honour's thoughts but I did say in that discussion where
I first welcomed Ms Sofroniou and Ms Newcombe to be
involved in these proceedings. I'm glad that a Bourke
Street law firm is representing Harwood Andrews and that
was a discussion outside of Court Room 10 on 12 March
2008. Do I need to repeat the words of that
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conversation?
HIS HONOUR: Mr Johnson, this is entirely irrelevant. I will
require you to sit down in a moment.
MR JOHNSON: I believe I believe it is highly relevant,
because I think the reason that I haven't found that
smoking gun memo is because it doesn't exist because the
authors, the Dr Callinan and the Flower & Hart
correspondees in this case, as I said, I'll need to
(indistinct) March 2007 (indistinct) capacity to
understand the issue or to write that memo. And I say;
that having regard to the other documents, that I have
recovered in terms of communications between Mr Hanlon of
Harwood Andrews and Ms Cressy. It puts me firmly in the
belief that that's why I have come this close to finding
that smoking gun memo. The evidence required to more
than establish misfeasance, misconduct of fraud - - -
HIS HONOUR: You have had every opportunity for this court
any relevant evidence in this case, you protracted the
hearing last year deliberately. At the end of the day
when you were on the cusp of closing your case, you
veered away from doing so, wasted a whole day on the 12
December and ultimately persuaded me to do that which I
probably should not have done and that is adjourn the
case to this year. You had two months to get further
information. You have used those two months by issuing a
series of subpoenas which were an abuse of the process of
this court, abusing your position, not only as a
litigant, but as a barrister and solicitor of this court.
This case has now gone for three and a half days this
week. I should say that probably in it, we've had about
20 minutes of evidence and about, with great respect to
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Ms Sofroniou, she put forth 30 minutes of useful argument
today and 30 minutes last night, the rest have been
wasted by you. You've had every opportunity to put
further evidence forward. Unless you wish to advance a
sensible argument in resistance to the costs application,
I require you and indeed will now, give you a legal
direction to sit down. This is your last opportunity.
MR JOHNSON: I thank Your Honour for allowing me to address you
on that second point and I am comfortable and ready to
sit down.
HIS HONOUR: Thank you very much, Mr Johnson.
(RULING FOLLOWS)
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.LL:KD 1