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HIS HONOUR: Mr Devries?
MR DEVRIES: May it please Your Honour, this matter, at
present, is still proceeding. So, Your Honour.
HIS HONOUR: Yes.
MR DEVRIES: Your Honour, as foreshadowed last night, I sought
a ruling from the Ethics Committee as to whether I could
- or ought to continue in this matter.
HIS HONOUR: Yes.
MR DEVRIES: I also advised my client that she should seek
independent legal advice on the same matters with regard
to both my instructors and I. Although she is also a
defendant to Mr Johnson's counterclaim, she has not been
provided with or served with a copy of the document, or
otherwise provided with details of its contents, I'll
come back to that in a moment, Your Honour.
HIS HONOUR: Yes.
MR DEVRIES: The need for me to clarify my position made it
impossible for me to give her copies of a document that
extends to well over 200 pages, if you include the
attachments to the documents, that he - the defence and
counterclaim, Your Honour, is 156 pages, and it has, I
think, about eight - - -
HIS HONOUR: This is in the other proceeding?
MR DEVRIES: In the other proceeding.
HIS HONOUR: Yes.
MR DEVRIES: And it may well be, Your Honour, that she needs to
read that document in its entirety before she makes the
necessary decisions. Sorry, Mr Johnson doesn't appear to
be ready, Your Honour.
MR JOHNSON: Your Honour, I have a medical condition which
prevents me from being able to sit down, I would like to
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raise it as a housekeeping matter.
HIS HONOUR: Well, Mr Devries - - -
MR JOHNSON: I know, simply forgive me, Your Honour, I can't
sit down, I'm in too much pain.
HIS HONOUR: Yes, well, you may stand, if you wish to.
MR JOHNSON: Thank you, Your Honour.
MR DEVRIES: He seems to be shuffling around and preparing
himself, which is very distracting to me, Your Honour.
HIS HONOUR: Well, I agree with that, court starts at 10.30,
Mr Johnson.
MR JOHNSON: I'll explain my medical - - -
HIS HONOUR: And my practice - - -
MR JOHNSON: - - - I do apologise.
HIS HONOUR: My practice is to come onto court at 10.30 at the
appointed hour.
MR JOHNSON: I do apologise, Your Honour, and I'll explain the
circumstances - - -
HIS HONOUR: Yes, well, Mr Devries is outlining to me matters
pertaining to his condition, or his position, are you
able to listen attentively for that?
MR JOHNSON: Yes, Your Honour.
HIS HONOUR: Thank you, Mr Devries.
MR DEVRIES: In the meantime, Your Honour, I've received an
interim ruling from the Ethics Committee, enabling me to
continue to act if that is the wish of my client and my
instructors as best they advise. The process of getting
a final ruling is underway, Your Honour. I had to - one
of the conditions of the interim ruling is I had to make
an application for a final ruling, do that overnight,
that's been emailed to the Ethics Committee, and
obviously, if the final ruling is different to the
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interim ruling, then I'll have to reconsider my position.
Now, the preferred option of the Ethics Committee was for
me to have made an application to have the counterclaim
struck out before I counterclaim the other matter struck
out before I proceeded further with this matter, but that
would have entailed me providing an affidavit, and -
which could have been done within time, but my counsel of
choice would not have been available til this afternoon,
and, of course, we would have had to have found a member
of this honourable court who could have - - -
HIS HONOUR: You'd have to make the - you'd have to make
appropriate application, serve it. What, in the other
proceeding, you would be seeking to have the counterclaim
struck out.
MR DEVRIES: Counterclaim as against me struck out.
HIS HONOUR: Yes, well, that may take time, I mean that has to
be subject to a hearing.
MR DEVRIES: Yes, now, that was a preferred option, but, of
course, that can't be done, Your Honour. Now, Your
Honour, I have to say that if I'd been graced with a copy
of the document earlier in the proceeding than I was, I
would have handed it up to Your Honour as part of my
application, or part of the submission on the question of
the appointment for litigation guardian. However, that
decision had been made by Your Honour before I received
the document. Now, it has to be put on the record, Your
Honour, that this giving to me of the document happened
in the context where Mr Johnson had successfully got my
predecessors, and my instructor's predecessors, to
disqualify themselves from acting for my client.
Although I've been put on notice of its contents, I
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have not been properly served with the document, nor do I
accept service of it in a manner that it was given to me.
It was given to me, Your Honour, in a context when I
asked for a copy of the application in the other matter,
in order to see how that matter related to this matter.
I have still not been provided with a copy of the
application in the other matter. It is relevant to this
proceeding, because it may be relevant to the relief,
with respect, available to Your Honour. Also relevant,
Your Honour, is that whilst a number of the other
defendants to that counterclaim were present in court,
and some still are, none of them were provided with the
document, only I was provided with the document.
HIS HONOUR: In other words, the counterclaim hasn't been
served.
MR DEVRIES: No, it's not been served on me, nor - - -
HIS HONOUR: It's not been served on anyone?
MR DEVRIES: Nor or anyone else, to my knowledge.
HIS HONOUR: How many defendants are there to - - -
MR DEVRIES: Thirteen defendants, Your Honour, including the
Attorney General of the State of Victoria, the Minister
for Human Services, Dr List, and I'll come back to
Dr List, myself, my instructors, my clerk, Mr Hanlon, his
firm, I think - I'm not sure if I mentioned Federal
Magistrate O'Dwyer. It also seeks relief against the Law
Institute of Victoria, who's not mentioned. It also
joins the Legal Services Commissioner.
When Mr Johnson made his application to you for
consolidation of that matter with this, he never told
you, Your Honour, that it included a defensive counter
claim which included myself and other people in this
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court as defendants. He didn't alert Dr List to the fact
that vile accusations were made against Dr List in that
defence account claim before he went in the witness box.
Your Honour may draw, I submit appropriate inferences
from that.
Some of the relief sought by Mr Johnson in his counter
claim in that matter appears to overlap some of the
relief sought by him in this matter. Now, the document
makes a number of allegations against me, Your Honour.
They're serious. I take them very, very seriously. Each
and every allegation that is made however is baseless and
without foundation and as I've indicated, the first
available opportunity, I will move to strike out the
counter claim against me and I suspect that most of the
other defence counter claim may well do the same thing.
It's timing, it's provision to me alone, was designed and
was successfully designed to distract me from doing my
job and to - and it was designed to prevent my client
from having effective representation. It was and is
nothing more than a tawdry attempt to nobble me as
counsel for the client and I'd submit that in those
circumstances, it may well be a contempt of this court
and insofar as it's provision to me and the circumstances
provided to me, extends the length of the hearing in this
court, I'll be seeking a result and costs order from
Mr Johnson and I'm sure my learned friend may well do the
same thing.
Now, the situation with regard to my client, Your Honour,
is something that concerns me very greatly. My client
hasn't seen this document yet and that's partly my fault
because I was concentrating on my own position first, but
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amongst the accusations, it makes - it goes to my
physical, mental and professional capacity. It accuses
me of being infirm - and that's the word that's used -
suffering from dementia, suffering from hearing loss,
incompetent, unethical, slippery and so on, that's one
category of complaints against me. The other category is
that I've defamed Mr Johnson in making complaints to the
legal services commissioner and that I am part of what he
calls the "Debris buried terminable conspiracy to
blackmail."
HIS HONOUR: Has the document been filed in court?
MR DEVRIES: Yes, the copy I've got is an original filed copy.
Now, Your Honour, the concern I have with respect is that
my client needs to read that document. She doesn't wish
to read that document at this stage, but she needs to
read it. She needs to - or she should - she's been urged
to get independent legal advice as to whether she should
continue having myself and my instructors represent her.
If there is any basis to the allegations of infirmity on
my part, and I deny each and every one of those, but if
there is, that's something she needs to consider and she
needs to consider whether there is any basis for it. She
doesn't wish to do that at this moment. She wishes this
matter to continue until completion. My concern is that
that isn't - that may not be the appropriate action for
her and at the very least, she needs to read this lengthy
scurrilous document. I had a discussion with my
instructor in the briefest of discussions with my learned
friend before the other defendants to the counter claim
and this matter in our opinion, certainly my opinion,
after discussing with them and I think they would agree
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with me has every sign of not being capable of being
completed within the two days that was allowed for it.
That's absolutely impossible in my opinion.
HIS HONOUR: That's quite clear. Even if the parties remain
relevant, I would have thought it's about a three day
case. But we've already lost a day.
MR DEVRIES: Yes, and more importantly Your Honour, I don't
believe with - in with the - very best of control - and
I'll tell you this with the greatest of respect. Even
with the very greatest of control from the Bench that
Mr Johnson will be confined to a time limit in his own
evidence and in cross-examination of my client, it would
enable this matter to finish by Friday in any case.
However, Your Honour, I don't want to lose the time and
costs we've already spent on this matter.
HIS HONOUR: Well, the first question really arises, concerns
your own position. Now, I understand the ruling from the
Ethics Committee is that you, at the moment, the interim
ruling is that you may continue to act if that is the
wish of your client. Your concern though is that your
client ought to express that wish in an educated way? In
other words, having had a look at the allegations made
against you, as to whether she - whether she still wishes
to continue with you acting on her behalf. Is that your
concern?
MR DEVRIES: It is my concern and in an educated way, meaning
also an informed but I can't inform her.
HIS HONOUR: No. She'll need independent advice.
MR DEVRIES: She should get independent legal advice.
HIS HONOUR: It may be with the scheme that the Bar has at the
moment, they may be able to make someone available who'd
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give independent advice to her reasonably quickly on that.
But do you - what do you submit I should do, having drawn
these matters to your attention? Do you wish to have
time so your client can read the document and get advice?
MR DEVRIES: Well, certainly she must read the document Your
Honour, but she's reluctant to do so and I can understand
why, but she must read the document and I think I can
make arrangements for summary from the Bar's pro bono
scheme to give her a little bit of time.
HIS HONOUR: Yes. Your concern is that you're not going to -
is that you're concerned that you should not continue in
this matter unless and until your client's had
independent advice? Is that what you're putting to me?
MR DEVRIES: Unless she's had - yes - opportunity to read this
and to give serious consideration to getting independent
legal advice. I can't force her to get independent legal
advice, but I stress to her and have stressed to her the
importance of doing so because if she doesn't, she may
have cause to regret that in the future and that can't be
allowed to happen.
But the difficulty she has Your Honour and she's been
quite frank about this is if Mr Johnson succeeds in his
attempts to remove me and my instructors, she'd probably
at the end of the line of getting other representatives
because while she could probably force through the cab
rank well a member of counsel to act for her, she can't
force the solicitor to take on what has become an
extraordinary poisoned chalice. Any lawyer who takes
this matter on or any representative who takes this on,
inevitably will be the subject of what we've been the
subject of at the hands of Mr Johnson.
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HIS HONOUR: Well I hear what you put Mr Devries and I'm
concerned about this development but what is it that you
submit I should do at the moment? At the moment we're
part heard in this trial.
MR DEVRIES: Your Honour at this moment I'd seek you to stand
it down for my client to read this - - -
HIS HONOUR: Yes.
MR DEVRIES: - - - and to see if I can organise some
independent legal advice for her.
HIS HONOUR: When do you anticipate you'll get a final ruling
from the ethics committee? Have they given you any
indication?
MR DEVRIES: No indication whatsoever. The email went to the
secretary last night. She would have gotten it when she
came in this morning. I don't know how quickly they
work. They would probably consider it a fairly complex
matter. Can I say Your Honour I'm not concerned about
that part of it because whilst the interim ruling is in
place, I can continue to act.
HIS HONOUR: Well I follow that, but your concern both as a
matter of your own professional ethics but also it seems
to be indicated in the interim ruling that your client,
with that ruling is subject to the wishes of your client
and your concern is your client can't properly express
her wishes without having read the document and getting
independent advice. I can understand that position. It
would seem to me appropriate to stand the matter down.
I'll hear from Ms Sofroniou and Mr Johnson in a moment.
How long do we need to stand it down for?
MR DEVRIES: Probably a couple of hours Your Honour.
HIS HONOUR: Yes.
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MR DEVRIES: Because it's 156 pages - - -
HIS HONOUR: I understand that. I must say my concern is
whatever's going on, we've got properties that I
understand are also bid to mortgages. Any delays in this
case are going to defeat the interests, not just of the
plaintiff but of the defendant.
MR DEVRIES: What I'd be submitting - - -
HIS HONOUR: And that needs to be borne steadily in mind that
any disturbance of the position of the plaintiff's
counsel would, I would think, be detrimental to his
interests.
MR DEVRIES: What I was going to submit to Your Honour with
respect was - if this matter can't proceed.
HIS HONOUR: Yes.
MR DEVRIES: For whatever reason, whether we haven't got enough
time to finish this week or because of my client's
position that Your Honour make interim rulings about what
happens to the properties and the basis for that would be
Mr Johnson's application - - -
HIS HONOUR: Application, I hear you. I hear that. Well we
might be able to do that. Well what do you suggest at
the moment? Stand it down for a couple of hours?
MR DEVRIES: Stand it down. Perhaps to half past 12 so we all
know where we stand before lunch Your Honour.
HIS HONOUR: I follow that.
MR DEVRIES: Lunch Your Honour.
HIS HONOUR: I'll hear from Mr Johnson and Ms Sofroniou.
MR DEVRIES: May it please Your Honour.
MR JOHNSON: Thank you Your Honour.
HIS HONOUR: I'm sorry, Mr Devries. When was the document
filed? This counter claim? When does it appear to being
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filed in the court?
MR DEVRIES: I believe it was 21 November and again why it
wasn't served before that Your Honour - - -
HIS HONOUR: Well I understand that.
MR DEVRIES: - - - is a matter that Your Honour might take into
account.
HIS HONOUR: Yes I understand that.
MR JOHNSON: Thank you Your Honour. I, I'll - there's
obviously a lot of issues raised there that we need to
discuss and I'll try to do so quickly.
HIS HONOUR: Well there's not a lot raised. At the moment the
question - the application before me is that the matter
be stood down for a couple of hours. It would seem given
the position of Mr Devries due to this counter claim
coming to his attention that I have no alternative and to
give the plaintiff the opportunity to obtain proper
independent advice about Mr Devries' position.
MR JOHNSON: Yes. Your Honour I'm just going to request that
the matter be stood down at one o'clock in the afternoon
on medical reasons.
HIS HONOUR: Yes.
MR JOHNSON: Maybe I can address this point first. I was - I'm
sitting uncomfortably in the chair, I'm not sure if you
noticed the cushion yesterday Your Honour and I have been
basically unable to lie down or sit down through most of
the evening. I have a doctor's certificate from my local
GP.
HIS HONOUR: Yes, well have you shown a copy of it to - - -
MR JOHNSON: I haven't but I do have photocopies. Forgive me,
it's painful for me to move. And I have an original
which presently I make available to you Your Honour.
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HIS HONOUR: Yes.
MR JOHNSON: What the - it's a doctor's certificate saying I'm
unfit for work today, that I have a muscular condition in
my lower back and I require further assessment today. My
local GP advised me to have my back looked at in
casualty, but the earliest I can arrange to do that is
1.30 this afternoon in any case. Firstly let me say I
have no desire or wish for Mr Devries or his instructor
to step down in the current proceedings. I believe even
with this medical condition, which I'm hoping will be
resolved this afternoon I was hoping we might finish by
Friday of this week in the current proceeding and we'll
certainly be finished by Monday. My - - -
HIS HONOUR: You told me yesterday to take three weeks.
MR JOHNSON: Yes but Your Honour the case management that we've
applied here is that really it's just a question of what
were Ms Cressy and what were my living arrangements over
the past decade and to what extent was there an
overlapping.
HIS HONOUR: The contributions - - -
MR JOHNSON: And a question of applications and source of
moneys and a tying those to properties.
HIS HONOUR: Well I agree if we - - -
MR JOHNSON: That could be done very quickly Your Honour.
HIS HONOUR: All right well - - -
MR JOHNSON: Your Honour if we were to lose this afternoon and
stay all of tomorrow morning I'm 99 per cent confident we
would finish comfortably before close of court hours on
Monday afternoon.
HIS HONOUR: So this was a muscular condition is it?
MR JOHNSON: Yes he's not - because of my tenderness my doctor
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wasn't able to examine me properly. I put - - -
HIS HONOUR: Is this muscular or something else? It doesn't
look to me like muscular at all. Medication condition?
MR JOHNSON: No, no. It's muscular - it is hard to read his
reading isn't it?
HIS HONOUR: It looks more like a - that's why I asked. It
looks more like medication to me.
MR JOHNSON: He did have a waiting room of people even at eight
o'clock this morning.
HIS HONOUR: Which doctor did you see?
MR JOHNSON: Dr Caskasubo. I'm certainly not on any medication
Your Honour. I'm just concerned that it may be a tissue
problem, not a spinal problem, as I originally thought it
was. I thought I'd wrenched my back lugging all the
paperwork over in my briefcase (indistinct) yesterday.
So, Your Honour, I think that even if we did stand the
matter down for all of this afternoon and even all
tomorrow morning, we should still finish
comfortably - - -
HIS HONOUR: I won't be standing it down for tomorrow morning.
MR JOHNSON: OK, Your Honour.
HIS HONOUR: Most I'd do is stand it down this afternoon and
see how you went then.
MR JOHNSON: Thank you, Your Honour.
HIS HONOUR: I'll stand the matter down to 2.15, I'll hear from
Ms Sofroniou, but I will not stand it down beyond then.
In the meantime, you rest your condition.
MR JOHNSON: I have to go to casualty hospital, which I can't
do til 1.30, Your Honour. I won't be - - -
HIS HONOUR: Which hospital are you intending?
MR JOHNSON: St Vincent's.
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HIS HONOUR: Well, can't you attend there sooner than that?
You could go there now?
MR JOHNSON: I need some assistance, because I can't get into a
vehicle, I can't get into a sitting position.
HIS HONOUR: How did you get to court?
MR JOHNSON: I walked very slowly, Your Honour.
HIS HONOUR: Yes, well - - -
MR JOHNSON: I apologise for my lateness.
HIS HONOUR: I'm sure you'll be able to get to St Vincent's,
which is not very far away. Ms Sofroniou?
MS SOFRONIOU: As a fellow sufferer, Your Honour, I can say
that the 96 tram that one stands in is a very convenient
way of travelling, because I've had to do it myself, and
the benefit is you can stand up, and the 96 goes outside
St Vincent's, so that might be of some assistance by Your
Honour. As to the matters Your Honour raises, of course,
we're in the court's hands. I understand the position of
my friend. We're unclear as to the timing of the joinder
of all of these parties.
HIS HONOUR: Yes.
MS SOFRONIOU: One suggestion, I certainly wouldn't assume that
the court could enforce this, is I don't understand why
the parties that potentially can act as a nobble, as my
learned friend has put it, even if it's not intended that
way, why they're joined now? The other matter hasn't
been heard, nothing's - it hasn't been served, if my
friend chose to discontinue or withdraw the claim,
insofar as it related to my friends, they would be
permitted to - - -
HIS HONOUR: Which friend are you talking about?
MS SOFRONIOU: My learned friend, Mr Devries, and his
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instructing solicitor.
HIS HONOUR: So - but if the defendant discontinued those
claims against him, is that what you're putting?
MS SOFRONIOU: Yes, that would mean that no ruling were
required.
HIS HONOUR: I agree.
MS SOFRONIOU: It would be done reserving his rights, if it
became appropriate, to make any pleading he's entitled
to. It would mean that any sense that there was some
intimidation or nobbling going on would disappear.
HIS HONOUR: Yes.
MS SOFRONIOU: And that may be - - -
HIS HONOUR: That would resolve the issue, we could hear the
case subject to Mr Johnson getting medical treatment.
MS SOFRONIOU: And Mr Johnson himself would be free of the -
what he would say unfair suggestion that he's trying to
intimidate, because it would go away.
HIS HONOUR: Yes, I hear what you say, Ms Sofroniou. The
matter's in your hands, Mr Johnson, as to what you do
with this counterclaim that you have filed in the court.
One thing that will occur is that I remain seized to this
matter, and this case will be heard. So whatever occurs,
this case will be heard come what may, that's the first
thing. The second thing I think you need to bear very
steadily in mind is that any delay in this case, on my
reading, purely of the pleadings, is causing you more
harm than anyone else.
MR JOHNSON: Yes, sir.
HIS HONOUR: Now, it seems to me it's in - it's as much your
interest as anyone else that this case gets heard and
determined quickly.
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MR JOHNSON: Yes.
HIS HONOUR: You need to focus steadily on that. Anything that
disturbs the ability of the plaintiff's practitioners to
act on her behalf, I strongly suspect, will simply cause
you difficulty. Now, that's a matter for you, but you're
here unrepresented, and it behoves me to say that to you.
MR JOHNSON: Excuse me, Your Honour.
HIS HONOUR: What is the nature of this condition? Are you on
medication at the moment?
MR JOHNSON: No, no, no medication, Your Honour. It's - I
thought I'd wrenched my spine with all the paper weight
in this case yesterday, but it turns out it may be
muscular or tissue. My local GP wasn't able to examine
me properly, he said, "You need to get off to St
Vincent's quick smart", which is what I'm organising.
Your Honour, may I just clarify, the - in the new
proceedings, I have - sorry, I have served the defence
and counterclaim, but only on the plaintiff in those
proceedings.
I did that this morning, I felt that I was - nobbled is
not really the prettiest word to use, but I did feel that
the orders that Mr Justice Cavanough made on 20 June,
while they were extant, prohibited me from taking a step
in this level of communication with my mortgagee. I was
also fortified by - I'm fortified by the interim ruling
that Mr Devries has got from the ethics section of the
Bar counsel, if I've described that correct, and also by
his statement to Justice Cavanough on 20 June that - - -
HIS HONOUR: All right, well, what I'm going to do, because
time is getting away, I'm going to stand the matter down
to 2.15. You can seek what treatment you need.
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Mr Devries, you can try and obtained some independent
advice for your client, I'm not going to lose the day,
this court simply can't afford that, we have a lot of
urgent cases on our hands, a lot of deserving cases on
our hands, and we can't afford to have judges sitting
idly. I will adjourn the matter til 2.15.
MR DEVRIES: Just before we do, sir, can I just raise two very
quick matters? One is I reiterate my request for
Mr Johnson to provide me with a copy of the originating
process in that other matter, which I still haven't got.
HIS HONOUR: So that's the written statement of claim?
MR DEVRIES: Written statement of claim or originating motion,
I'm not sure how it's started, and secondly, Your Honour,
I thank my learned friend for her suggestion as a way
out.
HIS HONOUR: Yes.
MR DEVRIES: It - if - unless Mr Johnson was to withdraw
permanently, the threat would still be hanging over my
head, and the problem would still be there.
HIS HONOUR: I follow that, and I can do nothing about that.
MR DEVRIES: Yes.
HIS HONOUR: Other than to request Mr Johnson to provide to
Mr Devries a copy of the writ and the statement of claim
in the other proceeding.
MR JOHNSON: I shall do so as expeditiously as I'm able, Your
Honour.
HIS HONOUR: Yes. The matter, I think, was before Master Daly
the other day. Now, whether the matters were - whether
the court file's still with her associate, I do not know,
but if you need access to the court file post haste, I
could ask my associate to try and find it.
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(Kaye J)
UPON RESUMING AT 2.40 P.M.:
HIS HONOUR: I note that Mr Johnson still is not here, he has
been in contact with my tipstaff, he told him earlier
he'd be here at 2.35, then told him he'd be here at 2.40.
Mr Richards will have a look.
MR DEVRIES: Perhaps, Your Honour, we could deal with some
housekeeping matters, if he's not here for the next
couple of minutes.
HIS HONOUR: I'm loath to do it, I'm not sure if it falls under
that heading.
MR DEVRIES: The - if I can raise the matter now, Your Honour,
and if - - -
HIS HONOUR: Yes.
MR DEVRIES: - - - if Your Honour feels, with respect, if Your
Honour feels that that's a matter that needs to be sorted
out later, it's - what happens if this matter's not
completed by the end of this week, as to what Your
Honour's going to do on Monday. The reason - sorry, my
learned friend has difficulties with other days, but my
personal problem is that I have to notify somebody this
evening.
HIS HONOUR: I follow.
MR DEVRIES: As to what - - -
HIS HONOUR: I would have to be in touch with the listing
master to find out, the plaintiff in the matter that was
to come in on Monday passed away yesterday.
MR DEVRIES: Oh dear.
HIS HONOUR: But there is another one, I understand, may be
coming on. We're dealing with a number of these, so that
that will have to be accorded priority, but otherwise, I
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would expect to keep going in this case. But perhaps we
better discuss this matter in front of Mr Johnson. The
other matter, I should say, for the - for the information
of counsel, I will be commencing tomorrow at ten, if you
can all cope with that, and rising at 3.30, because I
wish to attend the funeral of the late Mr Hume, Queens'
Counsel. Are you able to - you don't have a binding
arrangement holding you from court til 10.30 tomorrow, do
you, Mr - - -
MR DEVRIES: No, certainly not, Your Honour, I'm used to early
starts.
HIS HONOUR: Yes.
MR DEVRIES: Have never been used to early finishes, though,
Your Honour.
HIS HONOUR: Neither me.
MR DEVRIES: The other matter of housekeeping nature, and it'll
- I presume it'll go on transcript, I've got the spelling
of Mr Laitey's name wrong, it's L-a-i-t-e-y, I apologise
for that. I've got that wrong, I looked at some court
documents last night which said something different.
HIS HONOUR: All right, I don't think it matters a lot anyway.
MR DEVRIES: I apologise again, Your Honour.
HIS HONOUR: It doesn't - I don't think it's too great a
concern. I would think, subject to any of these
mesothelioma cases coming through, that the intention
would be I'd try to complete this case, but equally, by
Monday, this case would have well exceeded the limit
given to the listing master by the practitioners, as a
matter of - - -
MR DEVRIES: - - - exceeded that by this evening, I believe,
Your Honour.
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HIS HONOUR: I'm sorry?
MR DEVRIES: I think it would exceeded - - -
HIS HONOUR: Well, I follow that, but there's been some
unforeseen delays, and I'd allow time on for that.
MR DEVRIES: M'mm.
HIS HONOUR: Well, I'm loath to recommence without Mr Johnson
being here, I am concerned about it now being half an
hour later than the time I appointed the court to resume.
Mr Richards has volunteered to contact Mr Johnson, he has
his number. I think the better for me to do is I'll
stand down for a
moment - - -
MR DEVRIES: Just before we do, there's another housekeeping
matter that my learned friend wishes to raise, which,
again - - -
MS SOFRONIOU: It will cause no embarrassment, Your Honour, and
that is just that the transcript, which Your Honour is
also receiving, inadvertently refers to myself as acting
on behalf of the 2nd and 3rd defendants, instead of, as
is the case, 2nd and 3rd defendants by counterclaim.
HIS HONOUR: By counterclaim, yes.
MS SOFRONIOU: I, with the leave of my friend, brought that to
the attention of the office, but I want to do it through
the court and the appropriate - - -
HIS HONOUR: Thanks, well, that can be recorded at the -
Ms Sofroniou appears on behalf of the 2nd and 3rd
defendants to the counterclaim.
MS SOFRONIOU: Thank you, Your Honour.
HIS HONOUR: Thanks, Ms Sofroniou. Mr Johnson, in your absence
the only matters raised were what might happen to this
case if it hasn't finished by Friday, and I have informed
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counsel it will be a matter for the listing master, and that
may depend on whether there are any more sick plaintiffs
waiting for their cases to be heard as a matter of
urgency. Now, Mr Devries, what's your position?
MR DEVRIES: My client received - sorry, had the opportunity to
read the counterclaim and defence in the other matter,
the Bar provided her with independent legal advice from
another member of counsel, that member of counsel advised
me that he had spoken with my client, had given her
advice, obviously he hasn't discussed with me what that
advice is.
HIS HONOUR: M'mm.
MR DEVRIES: And that he was - he believed she understood the
advice. Following that, my client has informed me that
she wishes me to - and my instructors to continue in this
matter. She also advised me at that time, Your Honour,
that her mother is now available to give evidence, and
I'll be calling her mother as well, so where I have
informed Your Honour that I only had one witness
yesterday.
HIS HONOUR: Yes?
MR DEVRIES: I now have two witnesses. Another matter
that - - -
HIS HONOUR: Now, an order has been made for witnesses to be
out of court, so if you could advise the - - -
MR DEVRIES: I'll be asked her to leave as soon as - - -
HIS HONOUR: Yes.
MR DEVRIES: The next matter, Your Honour, now that Mr Johnson
is here. If I can foreshadow that I will be seeking to
amend the statement of claim - I got distracted yesterday
from - turn your mind to that and one other matter which
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I'll raise in a second. I haven't had the opportunity to
formulate that but I'll provide that to all the parties
then Your Honour and I will - I make formal application
tomorrow.
HIS HONOUR: That's just by way of foreshadowing (indistinct)
the nature of the amendments that you intend to seek
about (indistinct).
MR DEVRIES: Just to add two other - I think it's two other
properties by their address to the list of properties.
HIS HONOUR: It's the Torquay property - property and the
Caulfield East Property.
MR DEVRIES: That's correct, Your Honour.
HIS HONOUR: Well, you will need to make that application
promptly and I will then hear from Mr Johnson as to what
he has to say about it.
MR DEVRIES: Your Honour, I - intended to make it first thing
tomorrow when I would have the - the full amendment
written out - - -
HIS HONOUR: Well, in the meantime once you've made that - once
you have drafted the amendment, you'll need to send a
copy of it to Mr Johnson so he has time to have a look at
it, before coming to court tomorrow. So it will need to
be faxed or emailed to him or whatever.
MR DEVRIES: We have had great difficulty right through this
matter getting an email or fax across to which Mr Johnson
can respond quickly.
HIS HONOUR: Yes, well, I will ask Mr Johnson in a moment.
MR DEVRIES: And the other thing I was distracted from doing
Your Honour was to ensure that Your Honour had a copy of
- I have to say this - what purports to be a court book
in this matter.
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HIS HONOUR: I had one from the second and third defendants to
counter claim.
MR DEVRIES: I - I have - - -
HIS HONOUR: That doesn't matter, I'm not a great fun of court
books.
MR DEVRIES: I must say Your Honour I'm very relieved to hear
that because whilst this has the pleadings and the
previous orders made in this court, it doesn't have
anything else.
HIS HONOUR: Well, that would be of assistance, yes. Thank
you. Now - - -
MR DEVRIES: I apologise for not providing you - - -
HIS HONOUR: Are you otherwise ready to proceed with the case?
MR DEVRIES: I am Your Honour. If - just if I can get back to
the Monday date, would it be possible Your Honour for
myself or my instructors to make enquiries of Your
Honour's associate after the court rises to see if
there's any firmer idea of what might happen on Monday.
HIS HONOUR: Yes. I'll have to make contact with the Listing
Master first and she's not always easy to get a hold of,
but you can certainly contact my associate to find out
what'll be happening on Monday.
Mr Johnson, in your absence, I also announce I will be
sitting at ten o'clock tomorrow. Not 10.30 and I will be
rising at 3.30 in the afternoon, we'll adjust court hours
because I need to attend a funeral tomorrow afternoon.
Are you right to proceed now?
MR JOHNSON: Yes, I am Your Honour. I thank Your Honour and my
condolences.
HIS HONOUR: Well, it was to - a great member of the Victorian
Bar.
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MR JOHNSON: I'm aware of who the person was, yes.
HIS HONOUR: The other matter is have you got an email address
or facsimile address to which the proposed amendments can
be sent this evening so you have time to look at them?
MR JOHNSON: I do have, but I have been unable to access it for
the last 48 hours, hence my concern. I have been pushed
to the brink of bankruptcy Your Honour as you can see
from the fact that my net equity and my properties 12
months ago was about half a million and now apparently
it's down to under $70,000.
HIS HONOUR: Well, it's a simple question as to whether there's
somewhere we can send you the - - -
MR JOHNSON: I had - sir - I have neither email or fax which I
can rely on.
HIS HONOUR: Well, then you'll need to make arrangements with
Mr Devries to be able to collect from his chambers
tomorrow morning a copy of the - or from his solicitors,
a copy of the proposed amendment, when would that be
available Mr Devries?
MR DEVRIES: It'll be available from any time after 6 p.m.
today Your Honour. And possibly even 5 p.m.
HIS HONOUR: Well, I would expect then that arrangements can be
made between yourself and Mr Devries' solicitor and/ or
Mr Devries to collect it then so you'll have an
opportunity to see it this evening. Now, we'll continue
with - - -
MR JOHNSON: Sorry, Your Honour, may I express my objection in
this matter that the plaintiff is allowed firstly to make
that application so late yesterday regarding the - - -
HIS HONOUR: I cannot - - -
MR JOHNSON: - - - and now to amend pleadings Your Honour. How
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can that be?
HIS HONOUR: I'm not allowing them to amend their pleadings.
They have foreshadowed an application to be permitted to
amend the pleadings and I will hear that application once
the draft amendment is to hand. I cannot hear the
application till he's drafted the amendments. And
Mr Devries will need to get leave from me and I'll hear
you on that application. I cannot pre-emptively stop him
making an application to do that.
MR JOHNSON: I had understood that the time for amending
pleadings closed some weeks before the trial date.
HIS HONOUR: You misunderstood, because the law in fact is that
a party can amend their pleadings at any stage indeed up
till judgment provided that occurs without injustice to
the other side. I will hear you on any application when
it is made. We will now resume with the evidence.
MR JOHNSON: Thank you, Your Honour.
HIS HONOUR: Mr Devries, your client is giving evidence.
MR DEVRIES: Just one matter arising out of what - with
respect, what Mr Johnson has just said. He's raised the
question of bankruptcy Your Honour.
HIS HONOUR: Mr Devries, if we're going to keep having
discussions, we're not going to get onto this case.
MR DEVRIES: But with respect Your Honour if - Mr Johnson says
from time to time including in a sworn documents before
this court that he's filed for bankruptcy or he's going
to file for bankruptcy. The moment he does that, Your
Honour, with respect this matter cannot proceed further.
And he keeps raising the prospect that he's bankrupt or
he's going to go bankrupt and I just raise the question
that if that is what's happened and as of yesterday,
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according to the searches, he hadn't done that but he has
said on affidavit that he has filed and then that he
intends to file - - -
HIS HONOUR: Mr Devries, what do you want me to do about it.
MR DEVRIES: Well, he's raised - - -
HIS HONOUR: I cannot do anything about it other than hear this
case. Now, if the parties don't wish me to hear the
case, there are other cases of great importance I can
hear. Now, please, can we proceed to the evidence,
unless you have an application to me.
MR DEVRIES: I'll press on, Your Honour, but the concern I have
is the moment he's bankrupt - - -
MR JOHNSON: Your Honour, I have no intention of formal filing
for bankruptcy within the next seven days, Your Honour.
HIS HONOUR: Yes.
MR JOHNSON: Penniless perhaps, would be a more apt word.
Excuse me for not making that clear.
MR DEVRIES: If my client can return to the - - -
HIS HONOUR: Yes. I think that's the best cause if we try and
get this case heard and completed.
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30,000 for those - for that installation.
Who paid for that?---I did.
How did you pay for it? Cheque or cash?---Cash. Not all at
once.
Who did you pay it to?---Sorry?
Who did you pay it to?---Prestige Kitchens in Williamstown, I
think that's the right name. There was also the
electrician - - -
Sorry could I just take you back to the kitchen for a moment?
Who liaised with the installers to get the installation
and replacing the kitchen?---I did that. I also saw
(indistinct) the electrical appliances myself and the
local electrical store down in Hoppers Crossing.
Purchasing the new oven and range hood. I went to -
there was a plumbing centre, I've forgotten the name of
it that I purchased a designer sink from and tapware. I
did all of that. I paid for the plumber to come out and
install the dishwasher.
Anything else done in respect to the kitchen?---No that was
approximately it, yes.
And you were moving on I think to talk about other things?
---Yes all of the electrical - basically all the existing
lights in the house were really old and outdated so they
were removed. New lights were put in throughout the
entire house, new power - - -
Who put the new lights in?---An electrician that I hired.
Who paid for that electrician?---I did.
How did you pay that electrician?---Cash.
And you then moved on to talk about other items?---Well there
was curtains, curtain fittings. I removed all the old
curtains, it was quite difficult. It was hard wood. It
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was quite difficult to get all the stuff out but I
physically did that myself. Installed the new curtains,
new curtain rails, all that sort of stuff.
Who purchased the curtains and the rails - - - ?---I did.
- - - and the other bits and pieces?---I did.
Now you mentioned something about lights and power points?
---Yes that was included in the electrical work.
Frank Debrinkat was his name, the electrician.
I'm not sure whether I asked this question yesterday but in
whose name was the property purchased?---In Mr Johnson's
name.
You mentioned that there was a mortgage taken out to purchase
that. In whose name was the mortgage?---That was also in
Mr Johnson's name.
And why was that? In both cases?---Primarily as a tax
effective way for both negative gearing, also because I
wouldn't have been able to access a loan of those funds
on my income. Yes basically he handled the financial
side of things like that.
Did you have a bank account at the time that you occupied Queen
Street, Altona?---Yes I had a number.
Sorry?---Yes I had a number of bank accounts.
What happened to the documents in respect to that bank
account?---They were all stolen while the children and I
were on a ski holiday one weekend.
Who stole those?---I - - -
HIS HONOUR: Well just a moment.
MR JOHNSON: Objection Your Honour.
MR DEVRIES: Yes I withdraw - - -
MR JOHNSON: This is extraordinary, this is (indistinct)
allegations (indistinct) sir.
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MR DEVRIES: I'll withdraw the question Your Honour.
HIS HONOUR: The question is inadmissible anyway unless the
witness can say from direct evidence as to how they were
lost.
MR DEVRIES: I was going to do that Your Honour, that's why
I've withdrawn the question with respect. (To witness)
Where were the documents?---The documents were kept in my
room. I had a system of filing on a shelf in my room.
There were also personal items like glamour photos
stolen, but all of my files were stolen that weekend.
What address were you at - sorry what address were the
documents and the glamour photo at the time they were
stolen?---At 166 Queen Street.
Who had keys to those premises apart from yourself?---Only
James and Mr Johnson.
HIS HONOUR: When did the documents go missing? What time
frame would that have been?---It would have been in
August, approximately August 07.
MR DEVRIES: Were there any signs of breaking of any locks,
windows or anything else to get access to the premises?
---Yes there was. There were signs of forced entry on
one of the front bedrooms where a window had been popped
open. You needed a special piece of wood, the correct
size to keep it shut and the children had removed that so
it was quite easy just to give a little push to pop the
window open and for someone to climb in.
Was anything, apart from your personal documents and your
personal photographs, is there anything else taken from
your premises?---No, all of the electrical equipment in
the house, our plasma television was still there, all of
my gold jewellery was still there, a stereo system was
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still there, I had a bit of cash hidden away, that was
still there.
Can you tell His Honour what the documents were taken comprised
- now, I don't mean you to go through every document, but
if you can give us categories of documents?---OK.
That disappear?---All right, I had income tax returns, various
financial institution documents, bank statements,
insurance documents, I had three years of work diaries,
accounting documents stolen, children's birth
certificates were stolen, but all of my files were gone,
taken, everything, gone.
Now, can I just ask you about these work diaries, what years -
sorry, did that cover calendar years or financial years?
---Calendar years, yes.
And which - sorry, which calendar years did they - - -?---I had
2005 and 2007. Well, I was only a little way through
2007 when the diary was stolen, but yes.
So 2005?---Two thousand and six, 2007.
Sorry, I didn't hear you say 2006, and what - you said they
were your work diaries, what did they - what did they
have in them, what information?---I guess the best way to
describe it was like accounts receivable.
M'mm?---Money coming in, money going out, expenditure, income
and expenditure, basically.
Have any of those documents ever come to light?---No, nothing's
resurfaced.
Has anyone ever said to you that they have taken those
documents?---No one has outright admitted the theft of
the documents, no.
Unit 9, 2 Gibson Street, Caulfield?---Yes.
Do you know which property I'm referring to?---Yes, that's
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student accommodation.
Can you recall when that was purchased?---Maybe a year after we
were in Point Cook, that was more specific than that.
Who purchased that property?---James did.
And did you have a caveat placed on that property, on the top
of that property?---Yes, initially, yes, I did.
Yes, did you receive any request to remove that caveat?
---Yes, I did, through my then lawyers, Harwood Andrews.
I received a request saying that it was to be sold, the
caveat needed to be released, or he was going to lose
money.
Sorry, who was the request from?---That was from Mr Johnson. I
think it said something to do with settlement was dutiful
and - - -
Could you have a look at this letter? This is a letter dated,
first of all, 26 October, and that was crossed out, 2007
crossed out and made 29 October. Is that a true copy of
the letter that you're referring to?
---Yes, it is.
And about halfway down on the front page, there's a reference
to the property being under contract of sale and
settling, have you - can you see that reference?
---Where it says Gibson Street is under contract and is
past you?
Yes?---Yes.
Could you read out that, those two sentences?---"Settlement
will proceed within three business days of withdrawal of
caveat by your client. Settlement must occur on or
before Wednesday 7 November 2007, or I will suffer
further and substantial ongoing losses and damages".
And as a result of receiving that letter, what instructions did
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you give your then solicitors with respect to the
caveat?---I instructed them to release it.
I tender that letter, or that copy letter, if Your Honour
pleases.
MR JOHNSON: May I have a copy, please, Your Honour?
HIS HONOUR: You may have a look at it. I'll just have it
marked as an exhibit, then you can have a look at the
document. The copy letter from the defendant to Mr David
Hanlon, Harwood Andrews Pty Ltd, dated 29 October 2007,
will be Exhibit A.
#EXHIBIT A - Copy letter from defendant to David
Hanlon at Harwood Andrews Pty Ltd dated
29/10/07.
MR LANGMEAD: Your Honour, there are a large number of
attachments referred to that should be properly included
with the exhibit - - -
HIS HONOUR: Well, you can cross-examine on that basis, I'll
receive the letter as it is.
MR JOHNSON: Thank you.
HIS HONOUR: You can tender them when your turn comes.
MR JOHNSON: Thank you, Your Honour.
HIS HONOUR: Could you return the letter now, thank you, we'll
have it marked as an exhibit.
MR JOHNSON: Thank you, Mr Devries.
MR DEVRIES: What - was the property sold after you instructed
Mr Hanlon to have the caveat removed?---No, the property
was not sold, the property, to the best of my knowledge,
was we financed all - funds were drawn from it, in the
figure of about $100,000, to the best of my knowledge, no
sale went through whatsoever.
Did you get any benefit from that money that was refinanced on
that property?---No, there was no division.
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HIS HONOUR: Do you know how much the original purchase price
of that unit was?---No, I can't be certain on that.
Can you - an approximation?---Well, I think it was under 500,
so I'm guessing - there was some - there's a little bit
of confusion, because the mortgage broker who set the
deal up had some sort of tax effective way of giving
James cash after the purchaser. It was a very convoluted
deal.
Well, if you don't know the purchase price, I won't ask you to
guess. Mr Devries?
MR DEVRIES: May it please Your Honour. Did you have any
involvement in the process of purchasing that property?
---No, no.
Did you do any work on that property once it was purchased?
---No, I didn't.
Did you have any involvement in the leasing out or tenanting or
anything like that of that property after it was
purchased?---Not directly, other than discussions with
James about what we should do with that as an investment
opportunity.
What was the thrust of those discussions?---Just to hold onto
it for another number of years, and then possibly sell it
off.
Do you know which financial institution had the mortgage over
the property?---There have been so many financial
institutions, I'm sorry, I could say which goes to which.
Now, 7A Endeavour Drive, Torquay, do you know which property
I'm referring to?---Yes, I do.
What sort of property is that?---It's a townhouse that's surf
side location, rather new, I think it was purchased for
$399,000. I believe funds that were taken out of
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Caulfield, part of those proceeds were applied to the
purchase of that property.
Did you have any role in the purchase of that property?
---No, that purchase - sorry, that property was purchased
after we separated, but with funds from the Gibson Street
property.
Do you know whose in occupation of that property at the
moment?---I believe Mr Johnson is residing there at the
moment, that's the address that he's giving. I'm sorry,
you asked me before who had the mortgage for Caulfield,
and it's the Commonwealth Bank, because that's linked to
the Torquay property as well.
Could you have a look at this document and tell His Honour
whether you recognise that document? It's a letter from
the Commonwealth Bank Group, Your Honour?---Thank you.
Yes, I've seen this letter.
Who's it addressed to?---Well, this copy was addressed to Berry
Family Law from the Commonwealth Bank.
Who are Berry Family Law?---They're my solicitors.
And what is the - the first page attaches a copy of another
document, is that correct?---Yes, it does.
What is that document?---The second document is a notice to the
mortgagor, s.76(1) Transfer of Land Act 1958 to a Harold
James Johnson of 7A Endeavour Drive.
I tender those - or those two documents, Your Honour.
MR JOHNSON: May I see them, because I've never seen them
before, Your Honour.
HIS HONOUR: I'll mark them as an exhibit, then you can have a
look.
MR JOHNSON: This is extraordinary, Your Honour, may I have a
copy, please, I've not seen this correspondence.
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HIS HONOUR: Yes, I'll mark it as an exhibit, and you can have
a copy made in a moment.
MR JOHNSON: Thank you, Your Honour. Forgive me for not
standing, I still have some back trouble.
MR DEVRIES: Your Honour, I will - - -
HIS HONOUR: Mr - - -
MR DEVRIES: Sorry, I'll photocopy the previous exhibit in that
document and provide them to Mr Johnson for the same time
as the amended - proposed amendments to the statement of
claim.
HIS HONOUR: Thank you.
#EXHIBIT B - Letter from Commonwealth Bank to Berry
Family Law dated 12/11/08 together with
attached notice to mortgagor, s.76(1)
Transfer of Land Act 1958.
MR DEVRIES: Now you've been involved in Federal Magistrates'
Court proceedings with Mr Johnson as well is that
correct?---That's true, for quite some time.
And who is the applicant in those proceedings? Can you
recall?---James - I'm sorry, Mr Johnson is the applicant
in those proceedings.
And who were the respondents?---There was myself, there's the
1st respondent and my son's father, Matthew John Laity as
the 2nd respondent.
I'm going to ask you to look at a document which is the sealed
copies of orders made in the Federal Magistrates' Court
of Australia on 26 September 2007 (indistinct) interim
orders.
MR JOHNSON: Your Honour may I just at this point question
relevance? That's - - -
HIS HONOUR: Yes I haven't seen the orders but the same
question springs to my mind Mr Johnson.
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MR JOHNSON: Thank you Your Honour.
MR DEVRIES: Just going to the relevant section Your Honour.
At Paragraph 19 of those orders - --
HIS HONOUR: Well I don't have the orders in front of me.
MR DEVRIES: Yes I'm just going to read it to Your Honour.
It's one sentence. "The mother and the child shall
reside at 166 Queen Street, Altona" which is one of the
properties the subject of this proceeding. There is a
history that follows that which I submit to Your Honour
is relevant to these proceedings.
HIS HONOUR: I'm not sure how but what I can - instead of
receiving those orders as an exhibit, I think I can take
it therefore that there is an order Federal Magistrates'
Court 26 September 2007, what is it Paragraph 19?
MR DEVRIES: Paragraph 19 Your Honour, yes.
HIS HONOUR: That the plaintiff and Illyana - - - ?---And the
children.
- - - be permitted to reside at where?
MR DEVRIES: 166 Queen Street, Altona. Were you present when
those orders were made?---Yes I was.
Were those orders made by consent or - sorry that
part - - -
(Audio malfunction)
HIS HONOUR: - - - the evidence of (indistinct) not permitted
to be used as a collateral attack on
Mr Johnson's credit.
MR DEVRIES: If Your Honour pleases. Your Honour the simple
question of what's happened to 166 Queen Street, Altona
is dealt with in previous orders of this court.
HIS HONOUR: That's what I understand.
MR DEVRIES: And it - --
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HIS HONOUR: Well can I ask you this? Did you continue to
reside in the property?
MR JOHNSON: Your Honour - - -
HIS HONOUR: Look I've asked a question. I'm sorry I'm losing
patience with the pair of you.
MR JOHNSON: Sorry Your Honour, I never resided at that
property, full stop.
HIS HONOUR: Did you continue to reside at the property?
---After the relationship broke down?
Yes?---Yes.
For how long?---Until the last time I was in this court and I
was given residence of No.2 Dorrington Street.
That's by Justice Hansen is that right?---That's correct.
In July?---That's right, yes.
Has the property been sold? The Queen Street property?
---Yes it has now.
When was it sold?---Not so many weeks ago. Probably less than
four weeks ago, under value for $627,000.
Who sold it? Mr Johnson or did the mortgagee?---The mortgagor
stepped in. The agents they selected were Century 21 of
Williamstown.
And you - so when did you move out of the property? To July
2008 did you? About the time of Justice Hansen's order?
---Yes, shortly thereafter.
You'd moved then into Dorrington Street is that right?
---That's correct.
MR DEVRIES: This is relevant for the summons as well Your
Honour. When did you vacate to Dorrington Street?
---To - - -
Sorry I withdraw that. Have you vacated to Dorrington Street?-
--Yes I have apart from a few (indistinct) items that are
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left lying around two weekends ago, yes.
And what have you done with the keys to 2 Dorrington Street?---
Nothing yet.
Have you caused Mr Johnson to be notified of your vacation of
those premises?---I've caused my lawyers to be notified
which in turn I would assume would let
Mr Johnson know but he seems to have trouble being
contacted.
MR JOHNSON: I've just been notified this instance for the
first time Your Honour.
MR DEVRIES: Whilst you were at 166 Queen Street, Altona did Mr
Johnson ever turn up without warning or uninvited?---Yes
constantly.
And did he come onto the premises on any of those occasions?---
Yes he did.
MR JOHNSON: Your Honour these are incredibly broad questions.
HIS HONOUR: Why - how is this relevant?
MR DEVRIES: It goes to the nature of her occupation of the
premises Your Honour. It's probably, with respect,
marginal - - -
HIS HONOUR: Well, I'll disallow the question.
MR DEVRIES: If Your Honour pleases, I'll move on, Your Honour.
HIS HONOUR: This case should complete, properly run, by both
sides in two days, if we can stay relevant and directed
to issues of contribution and the like which are relevant
under s.285 and are also relevant in relation to the
constructive trust. If we stick to those issues on both
sides, we'll get there, we won't have to worry about
Monday.
MR DEVRIES: If Your Honour pleases.
HIS HONOUR: Do you have any records at all as to the amounts
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of money you say you put into the properties, such as at
Altona?---No, everything was stolen, Your Honour.
And were all the sums paid by you on improvements paid by cash,
were they?---Yes, they were.
You don't have any receipts?---No, I don't, although I could
probably get an old bank record for my deposit towards
Altona, and other records of money through those
accounts.
Well, that's a matter for you, it's - I'm just interested in
what evidence there is in relation to it?---There is no
hard evidence, it has all been stolen.
Mr Devries.
MR DEVRIES: May it please Your Honour. Following - sorry,
from the time that you separated, did you make any
payments in respect to the mortgages on any of the
properties?---No.
Did you make any payments in respect to any of the outgoings on
any of the properties, such as rates, taxes,
insurances?---No.
Did you do any improvements or maintenance to any of the
properties?---Maintenance, yes, just everyday stuff.
MR JOHNSON: Your Honour, both the question and the answer, I
submit, need to be a bit more precise.
HIS HONOUR: Well, they're not of much value if they aren't, I
don't think you need to help (indistinct) in their case.
MR JOHNSON: Right, thank you.
MR DEVRIES: Have you seen any documents in relation to the
sale of any of the properties that we've been discussing
today and yesterday?---Yes, there was the sale of Lisa
Court, which the majority of the proceeds went to pay the
outstanding mortgage on that, with a remainder of about
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$25,000 that Mr Johnson had at his own disposal, I don't
know what happened to that money. Of course, there was
the refinancing of Caulfield, the purchase of Torquay.
Did you see any documents in relation to either of those
transactions?---Yes, I have. There - sorry, I think
that's probably about it.
Have you received any money from the sale of any of the
properties that I've asked you about in the last two
days?---No.
HIS HONOUR: Now, Mr Devries, your client's just referred to
Lisa Court, she's given no evidence previously about Lisa
Court, I also notice she hasn't given evidence yet about
the Hawkhurst property or, I think, Inverloch Drive.
Now, I don't know whether they - you're intending to ask
her questions about that, you opened them, but you - I
don't - I don't have
any - - -
MR DEVRIES: I must say, Your Honour, I thought I'd asked her
about Inverloch Drive, but I may - - -
HIS HONOUR: I might have overlooked it, but - - -
MR DEVRIES: It would have been fairly late yesterday. I
thought I had asked her about Lisa Court.
HIS HONOUR: All right.
MR DEVRIES: But I'm quite happy to ask you again.
HIS HONOUR: You opened them.
MR DEVRIES: Would Your Honour just bear with me for a moment,
and I'll just - - -
HIS HONOUR: Yes, but (indistinct).
MR DEVRIES: Page 105 of the transcript, there is a reference
to Lisa Court.
HIS HONOUR: That's in opening. You opened all these
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properties.
MR DEVRIES: Sorry.
HIS HONOUR: I'm talking about evidence.
MR DEVRIES: I apologise, Your Honour, I - - -
HIS HONOUR: You asked your client yesterday, apart from the
rented properties, about Dorrington Street.
MR DEVRIES: Yes.
HIS HONOUR: - - - and at the close of play you'd got onto
Queen Street. We've dealt with more of Queen Street, the
Caulfield property, and the Torquay property, but I
just - - -
MR DEVRIES: I'm indebted to Your Honour.
HIS HONOUR: Ms Cressy referred in her - in an answer just into
Lisa Court, but apart from that, she has not been asked
anything about Hawks Court, Lisa Court, or Inverloch
Drive.
MR DEVRIES: Look, I apologise, Your Honour, and I thought I'd
been following some notes, and obviously
I've - - -
HIS HONOUR: Yesterday was a topsy turvy day, but I thought I'd
better draw that to your attention.
MR DEVRIES: And I'm indebted to Your Honour, I was very
distracted yesterday.
HIS HONOUR: I understand.
MR DEVRIES: I probably should not have proceeded. Hawkhurst
Court, Hoppers Crossing?---Yes.
Do you recall that property?---Yes.
Ten Hawkhurst, what sort of property was that?---That was a
property - house and land package, again, much like Point
Cook, although that was built through Divine Pioneer,
much cheaper - - -
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Sorry, when was it purchased, approximately?---Pretty much the
same time as Point Cook, yes, in the same timeframe as
Point Cook.
Point Cook being 2 Dorrington Street?---Yes, that's right.
Who located the - - -
HIS HONOUR: Could I ask you, within your statement of claim,
it's been pleaded that Dorrington Street, Point Cook, was
purchased in August 2002, does that sound about right?
---I can't be precise on that, I'm sorry.
And Hawkhurst Court was purchased Feb 2003, again, just
roughly, are those about the right time frames?
---Well, both the Divine houses, Hawkhurst and Lisa
Court, were after Point Cook, so yes.
Yes. Sorry, Mr Devries.
MR DEVRIES: If Your Honour pleases. Who located the Hawkhurst
property or the Hawkhurst land and house package?---
Mr Johnson and I together.
What involvement did you have in the process of purchasing that
property?---James took care of most of the sale, but we
picked out the internal paint colours, things like that,
the way we wanted the property to be presented, the
faade that we wanted on it, which particular block of
land we were going to choose out of the limited
selection.
How much, approximately, was the whole property, that's the
land and the house?---Under 200,000.
Sorry?---Under 200,000, I believe.
All right, and where did the money for the purchase of that
probably come from?---James arranged finance for that,
and I gave him a little bit of money towards the deposit
that he requested.
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Can you recall how much you gave him towards the deposit?
---I don't think it would have been more than three or
$4000.
Did you have any - - -
HIS HONOUR: How much was the deposit, do you know?---I've got
no idea, it was just a cash flow thing for him, but.
So you don't know how much he put in?---No.
MR DEVRIES: Were any - sorry, was anything done to the
property after you purchased it?---Yes, I did landscaping
on it, front and rear yard, twice, because the first
tenants didn't look after it properly, all the plants
died, so the whole thing had to be redone (indistinct)
thought, really, the cottage garden didn't work the first
time, so. I also did touch ups inside the property, the
first tenants were quite rough on the house, they ruined
carpet with stains in nearly every room, there were doors
with hole punches in them, walls with hole punches in
them that I'd puttied up and plastered myself. I
organised for Carpet Court to come out and replace the
stained carpet. At that point in time, there were a lot
of properties on the market and we were having trouble
getting a new tenant in in its current condition, so a
lot of work needed to be done on it to bring it back up
to speed, to scratch.
Who paid for those repairs, renovations, rectifications?
---I did, although I think we paid through the real
estate agent for repair to be done to the front door,
because I couldn't physically do that myself, the front
door wasn't shutting to come off its hinges.
Who dealt with the agents who were the rental managers of the
property?---Initially James did, but then he said that he
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8/14/2019 Brothel Gate Day 2 Full Day
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didn't have the time for it, so I took over the
management of the management.
HIS HONOUR: Did - I take it the rent was used to offset the
mortgage?---Yes.
Was it sufficient to offset the mortgage, or was the place
negatively geared?---No, it was negatively geared.
Who paid the balance of the mortgage instalments?---James did.
Do you know how much they were?---I think it would have been
300 a month, and I think the rent was 230 to 240.
MR DEVRIES: The 300 a month, was that the mortgage - - -?
---That's the mortgage repayment, yes.
Can you tell His Honour approximately how much you spent from
your moneys for the renovations, repairs, painting,
landscaping, gardening, and the other things that you did
on that property?---From memory, it was under $2000 for
the carpet, because I got discounted carpet. The
gardening in the two lots, maybe 1500 to 2000 as well,
the landscaping and the plant