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MR DEVRIES: The matter is still proceeding Your Honour.

HIS HONOUR: Thank you Mr Devries.

(JUDGMENT FOLLOWS)

.LL:MH 11/02/09 FTR:1A DISCUSSION

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- - -

.LL:MH 11/02/09 FTR:1A JUDGMENT

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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 11/02/2009 FTR:16P RULING

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.LL:KD 1

brothel gate day 14 am only

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