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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

.MI:SK 03/12/08 FTR:1 DISCUSSION

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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.


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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19/62

(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.


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.


28/62

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.


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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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

Brothel Gate Day 2 Full Day

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