brothel gate day 16 am

8/14/2019 Brothel Gate Day 16 AM

1/59

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

.LL:CW 16/02/2009 FTR:2B DISCUSSION

Cressy

223

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

29

30

31

1

2


2/59

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


Cressy

224

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

29

30

31

1

2


3/59

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.


Cressy

225

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

29

30

31

1

2


4/59

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.


Cressy

226

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

29

30

31

1

2


5/59

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.


Cressy

227

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

29

30

31

1

2


6/59

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


Cressy

228

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

29

30

31

1

2


7/59

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


Cressy

229

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

29

30

31

1

2


8/59

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


Cressy

230

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

29

30

31

1

2


9/59

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.


Cressy

231

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

29

30

31

1

2


10/59

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.


Cressy

232

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

29

30

31

1

2


11/59

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.


Cressy

233

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

29

30

31

1

2


12/59

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


Cressy

234

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

29

30

31

1

2


13/59

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?


Cressy

235

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

29

30

31

1

2


14/59

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.


Cressy

236

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

29

30

31

1

2


15/59

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


Cressy

237

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

29

30

31

1

2


16/59

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


Cressy

238

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

29

30

31

1

2


17/59

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.


HIS HONOUR: In fact, it sounds like it wasn't consensual. It

was done - - -


Cressy

239

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

29

30

31

1

2


18/59

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 - - -


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.


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.


Cressy

240

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

29

30

31

1

2


19/59


20/59

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


Cressy

242

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

29

30

31

1

2


21/59

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


Cressy

243

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

29

30

31

1

2


22/59

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.


Cressy

244

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

29

30

31

1

2


23/59

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


Cressy

245

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

29

30

31

1

2


24/59

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


Cressy

246

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

29

30

31

1

2


25/59

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


Cressy

247

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

29

30

31

1

2


26/59

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


Cressy

248

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

29

30

31

1

2


27/59

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.


Cressy

249

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

29

30

31

1

2


28/59

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.


Cressy

250

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

29

30

31

1

2


29/59

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


Cressy

251

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

29

30

31

1

2


30/59

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


Cressy

252

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

29

30

31

1

2


31/59

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


Cressy

253

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

29

30

31

1

2


32/59

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


Cressy

254

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

29

30

31

1

2


33/59

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


Cressy

255

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

29

30

31

1

2


34/59


35/59

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.


Cressy

257

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

29

30

31

1

2


36/59

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.


Cressy

258

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

29

30

31

1

2


37/59

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


Cressy

259

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

29

30

31

1

2


38/59

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


Cressy

260

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

29

30

31

1

2


39/59

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


Cressy

261

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

29

30

31

1

2


40/59

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


Cressy

262

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

29

30

31

1

2


41/59

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


Cressy

263

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

29

30

31

1

2


42/59

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


Cressy

264

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

29

30

31

1

2


43/59

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.


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.


Cressy

265

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

29

30

31

1

2


44/59

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


Cressy

266

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

29

30

31

1

2


45/59

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

brothel gate day 16 am

Documents