8/14/2019 Notice of Appeal Court of Appeal Fourth Restatement 2090615
1/36
IN THE SUPREME COURT OF VICTORIA AT MELBOURNEIN THE COURT OF APPEAL Court No. 3731/09
BETWEEN
HAROLD JAMES JOHNSON Appellant
and
PIPPIN PATRICIA CRESSY and othersand others according to the Schedule
Respondents
AMENDED NOTICE OF APPEAL
Date of Document: June 2009 Solicitors Code: 18081
Filed on behalf of:The Defendant, Harold James JohnsonPrepared by:Harold James Johnson1st Floor, 141 Osborne StreetSouth Yarra Victoria 3141
Telephone: 03 9279 3932Facsimile: 03 9279 3955Ref: HJJ/PC/VSC966507
To: The Respondents
And to: The First Respondents SolicitorsBerry Family Law1st Floor, 399 King StreetMelbourne Victoria
And to The Second and The Third Respondents SolicitorsLander & RogersLevel 16, 600 Bourke StreetMelbourne Victoria
TAKE NOTICE that the appellant complaints of the judgment and orders of the Honourable Justice
Kaye given and made as follows:
APPEAL
1. The Appellant Defendant appeals against the whole of the Judgements, Orders and Rulings of
given by the Learned Trial Judge between 2 December 2008 and 9 April 2009, including the
Page 1 of 36
8/14/2019 Notice of Appeal Court of Appeal Fourth Restatement 2090615
2/36
Judgements given by the Trial Judge on 11 February 2009 (twice) and on 25 February 2009
('the Trial'). Some but certainly not all of those Orders and Rulings have been authenticated by
the Trial Judge in writing, and those authenticated ones are set out in the attachments to this
Notice.
2. The Appellant Defendant's appeal raises serious, carefully detailed and thoroughly substantiated
allegations of misconduct and improprieties:
a. by the Trial Judge during the Trial and subsequent to the Trial;
b. by the Plaintiff First Respondent's current solicitors and counsel during, prior to and
subsequent to the Trial;
c. by the Plaintiff First Respondent's former solicitors (the Second and Third Respondents)
and former counsel; and
d. by the Plaintiff First Respondent.
3. The Appellant Defendant's appeal also raises serious, carefully detailed and thoroughly
substantiated allegations of misconduct and improprieties:
a. by several Justices in the Commercial and Equity Division of the Trial Division of this
Honourable Court (including Justice Cavanaugh and Justice Hansen) in respect of their
judgements, orders and rulings made in interlocutory hearings in numbered proceedings
9665 of 2007 prior to the Trial, between February 2008 and September 2008;
b. by the Chief Justice and Justice Coghlan in the Court of Appeal Division of his
Honourable Court in respect of their judgements, orders and rulings made in numbered
proceedings 3731 of 2009 on 15 May 2009; and
c. by several Justices in the Commercial and Equity Division of the Trial Division of this
Honourable Court in respect of their judgements, orders and rulings made in interlocutory
hearings in numbered proceedings 9263 of 2008 and 10222 of 2008 between March
Page 2 of 36
8/14/2019 Notice of Appeal Court of Appeal Fourth Restatement 2090615
3/36
2009 and June 2009 (namely Associate Justice Evans, Justice Hansen (again) and
Associate Justice Daly).
ORDERS SOUGHT
4. The Appellant Defendant asks the Court of Appeal to grant the following orders:
a. That all of the Judgements and Orders and Rulings of the Trial Judge favouring the
Plaintiff First Respondent be reversed;
b. That all of the Judgements and Orders and Rulings of the Trial Judge favourable to the
Second and Third Respondents be reversed;
c. That the Plaintiff First Respondent's Claims be dismissed and judgement ordered against
her on her Claim in favour of the Appellant Defendant;
d. That the Appellant Defendant's counterclaims against the Plaintiff First Respondent be
upheld, with the Appellant Defendant being given liberty to apply on the question of
damages;
e. That the Appellant Defendant's counterclaims against the Second and Third
Respondents be upheld, with the Appellant Defendant being given liberty to apply on the
question of damages;
f. That pursuant to Order 63.23 the Third Respondent, the Plaintiff First Respondent's
current solicitors and the Plaintiff First Respondent's current counsel pay one third each
of the Appellant Defendant's legal costs of the proceedings, inclusive of this appeal on a
full indemnity solicitor-client basis, with the Appellant Defendant being given liberty to
apply on the question of costs.
g. That instead of the Plaintiff First Respondent paying the Appellant Defendant damages
as to be assessed on the upholding of the Appellant Defendant's counterclaims against
her, the Plaintiff First Respondent's current solicitors and the Plaintiff First Respondent's
Page 3 of 36
8/14/2019 Notice of Appeal Court of Appeal Fourth Restatement 2090615
4/36
current counsel pay one third each of the Appellant Defendant's damages and loss (in
addition to costs).
OVERVIEW OF THE GROUNDS OF THE APPEAL
Overview and Summary of Appeal
5. The foundation of the Trial Judge's Judgements, Rulings and Orders was his finding that the
Appellant Defendant and the Plaintiff First Respondent were a de facto couple from late 1998 up
until May 2007. All of the Trial Judge's findings flowed from this errant foundation.
6. The Appellant Defendant appeals that the Trial Judge erred in this foundation finding as:
a. The Trial Judge erred and cause substantial abuse of process by trying the Plaintiff First
Respondent's claims against the Appellant Defendant on 2 December 2008 without
proper pre-trial steps and without finalised pleadings and by depriving the Appellant
Defendant of the benefit of his restated claims against the Plaintiff First Defendant (as
restated by him under proceedings number 9263 of 2008, which the Trial Judge refused
without proper consideration to consolidate).
b. The Trial Judge erred and caused substantial abuse of process by trying and rejecting
the Appellant Defendant's claims when the misleading and deceitful actions of the
Plaintiff First Respondent and her solicitors and counsel caused the competing claims to
be set down for trial a year or more early than they should have been tried denying the
Appellant Defendant the opportunity of pre-trial stages and to the opportunities to have
his pleadings settled by independent legal representation, and denying him the
opportunity to have independent legal representation at Trial.
c. The foundation finding was contrary to the evidence (and especially contradicted by the
independent evidence on which the Trial Judge was legally bound to base his findings);
d. The foundation finding was contrary to the applicable law;
Page 4 of 36
8/14/2019 Notice of Appeal Court of Appeal Fourth Restatement 2090615
5/36
e. Was the product of a grossly defective Trial process (including a wanton neglect of
normal Trial processes and introduction of steps (such as preliminary sanity inquisitions)
that were an abomination against State, Federal and International constitutional and
human rights laws);
f. Was induced by the Appellant Defendant's stricken financial situation, as caused by the
unlawful actions of the Plaintiff First Respondent and fraudulent professional misconduct
of the Second and Third Defendants and the Plaintiff First Respondent's solicitors and
counsel representing her during the pre-trial period and at the Trial.
7. The Appellant Defendant appeals that even if the Court of Appeal upholds that errant foundation
finding by the Trial Judge, that foundation finding alone was insufficient, given the absence of
any actual evidence by the Plaintiff First Respondent that she could, let alone did financially
support the Appellant Defendant (that, in the language of "constructive trust" and Part 9 of the
Property Law Act, that she made any financial or non-financial contributions to the benefit of the
Appellant Defendant at any time during the relevant period, the Trial Judge was not empowered
under Part 9 of the Property Law Act to grant the Plaintiff First Respondent any interest in the
Appellant Defendant's assets (or by way of judgement debt, an estimated monetary equivalent
thereto).
8. The Appellant Defendant appeals that even if the Trial Judge was lawfully empowered to grant
the Plaintiff First Respondent an interest in the Appellant Defendant's assets (or by way of
judgement debt, as he did, an estimated monetary equivalent thereto) the Trial Judge was
required by law to subtract from her entitlement an amount equal to the "negative contributions"
and especially the negative financial contributions of the Plaintiff First Respondent, which should
have resulted in the Trial Judge ordering the Plaintiff First Respondent to pay the Appellant
Defendant at least $121,000 (in lieu of the $105,000 order in her favour).
9. The Appellant Defendant appeals that the Trial Judge compounded his procedural errors and
finding, as summarised in the above three paragraphs:
a. by trying and rejecting the Appellant Defendant's claims against the Second and Third
Respondents on 2 December 2008 without proper pre-trial steps and on the basis of his
holding statement of his claims (filed in February 2008) rather than as the Appellant
Page 5 of 36
8/14/2019 Notice of Appeal Court of Appeal Fourth Restatement 2090615
6/36
Defendant had restated them in November 2008 (filed in the non-consolidated
Proceedings;
b. by trying and rejecting the Appellant Defendant's claims when the misleading and
deceitful actions of the Plaintiff First Respondent and her solicitors and counsel caused
the competing claims to be set down for trial a year or more early than they should have
been tried denying the Appellant Defendant the opportunity of pre-trial stages and to
the opportunities to have his pleadings settled by independent legal representation, and
denying him the opportunity to have independent legal representation at Trial.
c. By upholding a no-case to answer application by the Second and Third Respondents,
when their fraud and misconduct and ulterior purposes were manifestly demonstrated:
i. By the independent evidence given to them by the Appellant Defendant prior to
Trial;
ii. By the independent evidence produced by the Appellant Defendant at the Trial
(including the evidence the Appellant Defendant uncovered and recovered from
the Plaintiff First Respondent during the December 2008 - January 2009 Trial
recess);
iii. By "the paucity of the [Plaintiff First Respondent's] evidence (read "almost total
absence" for "paucity");
iv. By the heavy handedness of the Plaintiff First Respondent's solicitors (including
the Second and Third Respondent) in the registration and abuse of their powers
as caveators, and the proceedings they issued for Plaintiff First Respondent
against the Appellant Defendant;
v. By the gross champetry and maintenance practised by the Second and Third
Respondents and their successors (to the detriment of both the Appellant
Defendant and the Plaintiff First Respondent herself).
Page 6 of 36
8/14/2019 Notice of Appeal Court of Appeal Fourth Restatement 2090615
7/36
BACKGROUND TO THE APPEAL
The Plaintiff First Respondent's Claims
10. The Plaintiff First Respondent's claims ('Claims') against the Appellant Defendant:
a. Were first written for her by the Second and Third Respondents and recorded in her
Caveat dated about 5 May 2007;
b. Were secondly written for her by the Second and Third Respondents and her original
counsel in her Statement of Claim in proceedings number 9665 of 2007 dated November
2008, which the Second and Third Respondents prepared and filed and served and
notified to the Registrar of Titles in order to prevent the Plaintiff First Respondent's
Caveat from being cancelled by the Registrar of Titles;
c. Were thirdly re-written for her by her current solicitors and counsel in her Amended
Statement of Claim in proceedings number 9665 of 2007 dated 4 or 5 December 2008
(being three or four days into the Trial).
11. The Appellant Defendant has at all times complained that the Plaintiff First Respondent's Claims
were and are vexatious, oppressive and an abuse of process, being brought by her not to
vindicate any rights that the Plaintiff could legitimately claim against the Appellant Defendant but
for the ulterior purpose of causing unlawful damage and harm o the Appellant Defendant with the
intention of unlawfully extracting money and property from the Appellant Defendant;
The Misconduct of the Second and Third Respondents
12. The Appellant Defendant has at all times complained that the actions of the Second and Third
Respondents and in turn the actions of their successors, the Plaintiff First Respondent's current
solicitors and counsel, namely their issue and promotion and champetry and maintenance of the
Plaintiff First Respondent's Claims were done by them not to vindicate any rights that the Plaintiff
First Respondent could legitimately claim against the Appellant Defendant but for the ulterior
purpose of causing unlawful damage and harm to the Appellant Defendant with the intention to
Page 7 of 36
8/14/2019 Notice of Appeal Court of Appeal Fourth Restatement 2090615
8/36
unjustly and unlawfully enrich the Third Respondent at the expense of the Appellant Defendant
and, even and as it transpires, contrary to the interests of the Plaintiff First Respondent.
13. The Appellant Defendant has at all times complained that the actions of the Second and Third
Respondents manifest further illegality because the Third Respondent (and its employee agent
the Second Respondent) were acted contrary to:
a. their legal and ethical duties to the Court and the administration of justice;
b. their legal and ethical duties to the Appellant Defendant;
c. their legal and ethical duties to the Plaintiff First Respondent, which duties were
enhanced by their special knowledge of the Plaintiff First Respondent's major emotional
and mental health problems and histories.
14. The Third Respondent and their employee agent the Second Respondent contravened their
legal and ethical duties to the Court and the due administration of justice, including:
a. duties to exercise due diligence (meaning to undertake due investigations of assertions
and facts before issuing or maintaining legal proceedings), due care and due skill;
b. duties not to act in a way that would tend to defeat the interests of justice;
c. duties not to issue or maintain a claim that was brought for ulterior purposes and is
vexatious, oppressive and an abuse of the process of the Courts.
15. The Third Respondent and its employee agent the Second Respondent contravened legal and
ethical duties owed by them to the Appellant Defendant:
a. Because in accepting instructions from and acting for the Plaintiff First Respondent the
Third Respondent was turning its back on a 9 year client-solicitor relationship between
the Third Respondent and the Appellant Defendant and pursuant to that substantial
Page 8 of 36
8/14/2019 Notice of Appeal Court of Appeal Fourth Restatement 2090615
9/36
relationship the Appellant Defendant had overseen the annual provision of millions of
dollars of Government legal work provided to the Third Respondent;
b. Because in registering a caveat and claiming an interest as a chargee in the Appellant
Defendant's property, 166 Queen Street Altona, the Third Respondent acquired duties to
the Appellant Defendant (1) firstly, to investigate beforehand the merit of the assertions of
fact on which that charge and caveat were based, and (2) secondly, duties of a
mortgagee/chargee/caveator not to unduly interfere with or cause waste to the Appellant
Defendant's property the subject of their claim;
c. Because the Appellant Defendant is a member of the general public to whom the Third
and Second Respondents owe general duties arising as incidental to their general duties
to the public and the Courts and the due administration of justice.
16. The Second and Third Respondents duties to the Plaintiff First Respondent, which were
enhanced by their special knowledge of the Plaintiff First Respondent's deep seated and long-
term mental health problems such as their knowledge of:
a. the assault and battery and domestic violence she committed on 30 September 2007
against her own children and home,
b. the burglary and theft of evidence she committed on 16 November 2007 against the
Appellant Defendant; and
c. her mental and criminal health problems as admitted by her and recorded in the
December 2007 Report prepared by Psychologist Dr David List);
17. The Second and Third Respondents turned their backs on their duties to the Court, the Appellant
Defendant and the Plaintiff First Respondent:
a. by taking from the Plaintiff First Respondent in May 2007 a purported charge over the
Appellant Defendant's property 166 Queen Street Altona and registering a Caveat which
totally restricted the Appellant Defendant's rights to deal with that property; and
Page 9 of 36
8/14/2019 Notice of Appeal Court of Appeal Fourth Restatement 2090615
10/36
b. by their actions since that date which have been primarily to bring the Third Respondent
the most amount of money they could muster so as to maximise the returns they sought
under that charge and caveat.
18. More specifically, the Second and Third Respondents turned their backs on their duties to the
Court, the Appellant Defendant and the Plaintiff First Respondent:
a. By their failure in May 2007 to do any due diligence investigations on, or to obtain any
independent evidence from the Plaintiff First Respondent or elsewhere to substantiate
the Plaintiff First Respondent's Claims as written up in May 2007 in the Plaintiff First
Respondent's Caveat over the Appellant Defendant's properties;
b. By their failure in May 2007 to do any due diligence investigations, or to obtain any
independent evidence from the Plaintiff First Respondent or elsewhere to substantiate
the Plaintiff First Respondent's claim to be entitled to grant the Third Respondent an
equitable charge and allow the Third Respondent to register a caveat against the
Appellant Defendant's property 166 Queen Street Altona;
c. By their failure between May 2007 and November 2007 to do any due diligence
investigations, or to obtain any independent evidence from the Plaintiff First Respondent
or elsewhere to substantiate the Plaintiff First Respondent's claims before preparing and
issuing and filing the First Respondent's Statement of Claim;
d. By compounding their failures to do any of the abovementioned due diligence
investigations between May 2007 and November 2007 on their own initiatives by failing
to undertaking any due diligence investigations at any time during 2007 or 2008 (before
ceasing to act) after the Appellant Defendant made substantial disclosures to the Second
and Third Respondents and put them on full inquiry as to the fraudulent and scandalous
nature of the Plaintiff First Respondent's Claims;
e. By further compounding their failures to do any of the abovementioned due diligence
investigations between May 2007 and November 2007 on their own initiatives, when
handing over carriage of the proceedings to the Plaintiff First Respondent's current
solicitors and counsel:
Page 10 of 36
8/14/2019 Notice of Appeal Court of Appeal Fourth Restatement 2090615
11/36
i. by failing to put the Plaintiff First Respondent's current solicitors and counsel on
notice of the necessity that they undertake due diligence investigations and seek
independent evidence from the Plaintiff First Respondent;
ii. by failing to inform the Plaintiff First Respondent's current solicitors and counsel of
the opinions expressed in March 2008 by counsel retained by them, Dr Richard
Ingleby (who inter alia settled her Statement of Claim) that the Plaintiff First
Respondent's Claims were vexatious and oppressive, were fraudulent and "has
[sic] gone way to far."
Misconduct by the Plaintiff First Respondent's Current Solicitors and Counsel
19. The Appellant Defendant has at all times complained that the actions of the Second and Third
Respondents successors, the Plaintiff First Respondent's current solicitors and counsel, namely
their continuing promotion and champetry and maintenance of the Plaintiff First Respondent's
Claims were done by them not to vindicate any rights that the Plaintiff First Respondent could
legitimately claim against the Appellant Defendant but for the ulterior purpose of causing
unlawful damage and harm to the Appellant Defendant with the intention to unjustly and
unlawfully enrich themselves at the expense of the Appellant Defendant and, even and as it
transpires, contrary to the interests of the Plaintiff First Respondent.
20. The Appellant Defendant has at all times complained that the actions of the Plaintiff First
Respondent's current solicitors and counsel manifest further illegality because the they have at
all times acted contrary to:
a. their legal and ethical duties to the Court and the administration of justice;
b. their legal and ethical duties to the Appellant Defendant;
c. their legal and ethical duties to the Plaintiff First Respondent, which duties were
enhanced by their special knowledge of the Plaintiff First Respondent's major emotional
and mental health problems and histories.
Page 11 of 36
8/14/2019 Notice of Appeal Court of Appeal Fourth Restatement 2090615
12/36
21. More specifically, the Plaintiff First Respondent's current solicitors and counsel turned their
backs on their duties to the Court, the Appellant Defendant and the Plaintiff First Respondent:
a. by their continued and even more aggressive champetry and maintenance of the Plaintiff
First Respondent's Claims, that they knew or ought but for their recklessness and/or the
misconduct of the Second and Third Respondents for failing to communicate their own
knowledge, were vexatious, oppressive and fraudulent claims;
b. by their vexatious, oppressive and abusive pursuit of interlocutory orders and reliefs that
they knew the Plaintiff First Respondent was not entitled to seek because, as she swore
in her Affidavit dated 6 June 2008 prepared by them, she did not have the money to pay
for her legal costs of a trial (and ergo did not have the money to meet any orders to pay
damages to the Appellant Defendant in the event that her Claims were dismissed at
Trial);
c. by their vexatious, oppressive and abusive failure to observe normal pre-trial stages
(discover, interlocutory, finalisation of pleadings) before applying to have the matter set
down for trial;
d. by their vexatious, oppressive, abusive, fraudulent and deceitful conduct and tactics
during the Trial (as expanded upon below);
e. by their vexatious, oppressive, abusive, fraudulent and deceitful conduct subsequent to
the Trial;
f. by their vexatious, oppressive, abusive, fraudulent and deceitful conduct and tactics in
respect of the related Federal Magistrates Court proceedings.
The Defendant's Defence and Counterclaims
22. The Defendant filed and served his response to the Plaintiff First Respondent's Claims:
a. Firstly in January 2008, when he filed his defence in these proceedings, a 3 sentence, 3
line total denial of all of her Claims;
Page 12 of 36
8/14/2019 Notice of Appeal Court of Appeal Fourth Restatement 2090615
13/36
b. Secondly, in February 2008 by filing in proceedings number 9665 of 2007 counterclaims
against the Plaintiff First Respondent and the Second and Third Respondents;
c. Thirdly, in late November 2008 by filing in proceedings number 9263 of 2008 which
commenced a week or two earlier in November 2008, which pleadings contained:
i. his defence to those claims of his mortgagee in those proceedings;
ii. his restated counterclaims against the Plaintiff First Respondent and the Second
and Third Respondents (and continuing to be so-named as the First, Second and
Third Defendants by Counterclaim);
iii. his first statement of his corresponding claims against:
1. the Plaintiff First Respondent's original counsel;
2. the Plaintiff First Respondent's current solicitor, his law firm; and
3. the Plaintiff First Respondent's current counsel (each of them named as
the Fourth to Seventh Defendants by Counterclaim);
iv. his first statement of his claims against other persons intimately involved, or
intimately refusing to be involved, in the matters that gave rise to both sets of
proceedings (and named as the Eighth to Thirteenth Defendants by
Counterclaim).
d. Fourthly, in his Amended Defence and Counterclaim dated March 2009 and filed in
proceedings number 9263 of 2008.
23. The Appellant Defendant has maintained at all times (including in his twenty plus page
submission handed to and ignored by the Trial Judge at Trial on 2 December 2008) that his
pleadings were just holding documents, prepared by him as a commercial and government law
Page 13 of 36
8/14/2019 Notice of Appeal Court of Appeal Fourth Restatement 2090615
14/36
solicitor of 18 plus years good standing but with no advocacy or litigation experience or training
whatsoever, as an interim measure until they could be reviewed and settled by appropriately
trained and experienced independent solicitors and counsel retained by him for the purpose.
FIRST GROUNDS OF APPEAL ABUSE OF PROCESS AND DENIAL OF NATURAL
JUSTICE
Proceeding No. 9665 of 2007 were not ready for Trial on 2 December 2008
24. The Trial Judge erred in ruling that the proceedings number 9665 of 2007 were ready to be tried
by Him on and from 2 December 2008.
25. The Trial Judge should have ruled that the proceedings number 9665 of 2007 were not ready to
be tried and should have vacated the 2 December 2008 trial date for the following reasons:
a. The pre-trial stages had not been finished (or even started):
i. There had been no orders for discovery and no discovery had been made (the
barest of orders for preliminary discovery were made in March 2008 but, in any
case as the Trial Judge subsequently found, the Plaintiff First Respondent failed
to comply with even those preliminary orders);
ii. There had been no orders for or exchange of interrogatories;
iii. Neither/none of the parties had as at 2 December 2008 finalised their pleadings,
which could not be finalised until after discovery and interrogatories had been
completed (and the Plaintiff First Respondent's counsel demonstrated this when
with the blessing of the Trial Judge the Plaintiff First Respondent's filed and
served an Amended Statement of Claim 3 or 4 days after the commencement of
the Trial).
b. Instead, the Plaintiff First Respondent's current solicitors and counsel had wrongly and
fraudulently obtained the trial date of 2 December 2008 by making a fraudulent and
Page 14 of 36
8/14/2019 Notice of Appeal Court of Appeal Fourth Restatement 2090615
15/36
deceptive statement to the Court (to Master Kings) in August 2008, that they estimated
the trial would be of two days duration, but:
i. The Appellant Defendant had no knowledge of and was therefore unable to attend
that August 2008 hearing before Master Kings to voice his earlier (March 2007)
estimate of 3 to 4 weeks;
ii. The Plaintiff First Respondent's current solicitors and counsel failed in their duties
to the Court to inform Master Kings (1) firstly that normal pre-trial stages of
discovery, interrogatories and finalisation of pleadings had not been completed or
even commenced; and (2) of the Appellant Defendant's estimate of 3 to 4 weeks
(in the event, the Trial lasted 16 days);
26. The Trial Judge:
a. Should have either adjourned the proceedings to be re-listed before the Listing Master or
alternatively should Himself have made orders for discovery to be made, interrogatories
to be done and pleadings to be completed by the parties, before the proceedings could
be re-set down for trial;
b. Should have disciplined the Plaintiff First Respondent's solicitors and counsel for grossly
unethical misconduct for having the matter set down for trial before crucial pre-trial steps
in the proceedings had even been initiated, and for their further grossly unethical
misconduct in setting the matter down for trial on a wholly inappropriate and deceitful
estimate of 2 days trial duration; and
c. Should have ordered that the Plaintiff First Respondent's solicitors and counsel pay the
Appellant Defendant's costs (as a fixed amount calculated on a full indemnity solicitor-
client basis) pursuant to Rule 63.23.
The (Unlawful) Insanity Inquisition
Page 15 of 36
8/14/2019 Notice of Appeal Court of Appeal Fourth Restatement 2090615
16/36
27. The Trial Judge compounded his error of process described above because He should not have
entertained, at the outset of the Trial on 2 December 2008, an unlawful insanity inquisition
against the Appellant Defendant.
28. It is not and has not been any part of the laws of this land since the Stuart King's Star Chamber
was supposedly abolished in 1642 that a defendant is required to first satisfy the presiding judge
as to his sanity in order to have the right to defend himself in proceedings in this Honourable
Court and nothing in the Constitution of this State or the Supreme Court Act or the Rules of this
Honourable Court made under those statutes, or at common law, empowers a Judge to require a
defendant to pre-qualify himself by passing any form of sanity inquisition before he is allowed to
defend himself against claims brought against him in this Honourable Court.
29. The Trial Judge's decision (at the instigation of the Plaintiff First Respondent's counsel Graeme
Devries) to spend almost all of the first day of a supposed two day trial conducting an unlawful
inquisition into the Appellant Defendant's mental capacity to defend himself at Trial:
a. was an affront to the basic human rights of every Australian, rights supposedly protected
under our State and Federal Constitutions, under the Victorian Charter of Human Rights
and Responsiblities, under the United Nations Covenant on Civil and Political Rights (to
which Australia is a recent, minor signatory) and even under the 1689 English Bill of
Rights (which operates even in the United States and its external territories such as
Guantanamo Bay) and the 1215 Magna Charta.
b. was all the more repugnant (if that were possible) by virtue of the fact that the Appellant
Defendant is not just a natural citizen of this State and country, but is a highly intelligent
and highly educated man (as the Trial Judge subsequently found) who has been a
solicitor of 18 years good standing (as the Trial Judge subsequently found) and who
despite not having any training or experience as a litigator (as the Trial Judge
subsequently found) demonstrated during the Trial many abilities of a natural advocate
(as the Trial Judge subsequently found);
c. Cannot be justified by reference to any laws or procedures acceptable in Courts of law in
this State and this Country because it is the sort of heavy handed tyranny that survivors
of despotic regimes such as Nazi Germany and Stalinist Russia complain about.
Page 16 of 36
8/14/2019 Notice of Appeal Court of Appeal Fourth Restatement 2090615
17/36
d. Creates a frightening legal precedent for future trials in this State and country.
30. the Appellant Defendant's continuing sanity (under frightening circumstances of oppression) was
vindicated:
a. not only by the Trial Judge's December 2008 and February 2009 findings as to the
Appellant Defendant's sanity, intelligence and abilities as a solicitor recounted above; but
b. also by the May 2009 findings of a subsequent post-Trial inquisition (probably an unlawful
reprisal action) by the Legal Services Commissioner through her delegate the Law
Institute of Victoria that was instigated Federal Magistrate Daniel O'Dwyer ("strongly
urged" by the Plaintiff First Respondent's Counsel, Graeme Devries) in April 2009.
31. The Trial Judge:
a. Should have rejected the Plaintiff First Respondent's counsel's Graeme Devries unlawful
application under Order 15 to have the Appellant Defendant declared a handicapped
person, on mental incapacity grounds;
b. Should have disciplined the Plaintiff First Respondent's counsel Graeme Devries for
seriously unethical behaviour for attempting to launch such an inquisition The Trial
Judge most certainly should not have thanked and congratulated Graeme Devries for
instigating this inquisition.
Failure to Consider the Contemptuous Federal Magistrates Court Orders
32. The Trial Judge compounded his errors of process described above because he failed to
investigate or appreciate the Appellant Defendant's pleas, even in the context of the unlawful
insanity inquisition, that the Appellant Defendant was under pain of breach unlawful (but
nonetheless extant) orders made by Federal Magistrate Daniel O'Dwyer in the Federal
Magistrates Court on 9 September 2008 that purportedly on penalty of up to 2 years
imprisonment or $20,000 fine prohibited the Appellant Defendant from referring to or using any of
the affidavits or evidence in the related Family Law Act proceedings (in which he was the
Page 17 of 36
8/14/2019 Notice of Appeal Court of Appeal Fourth Restatement 2090615
18/36
Applicant) in evidence at the Trial before the Trial Judge (the 'Contemptuous Federal
Magistrates Court Orders').
33. The Trial Judge compounded his errors of process described above by failing to appreciate that
the Contemptuous Federal Magistrates Court Orders:
a. Were 95% or more drafted by the Plaintiff First Respondent's counsel Mr Graeme
Devries and purported to place no such handicap or pain on the Plaintiff First
Respondent or her solicitors or counsel;
b. Were such that:
i. the Appellant Defendant was (as he protested to the Trial Judge) prima facie in
breach of them (and at penalty of imprisonment) simply by mentioning them to the
Trial Judge, and was by their force completely shut out from responding to any of
the scandalous allegations put by the Plaintiff First Respondent's counsel in the
context of the unlawful insanity inquisition; and
ii. it was not within the powers of the Plaintiff First Respondent's counsel to waive
those Federal Magistrates Court Orders (as the Plaintiff First Respondent's
counsel purported to do) to allow the Appellant Defendant to participate in the
unlawful insanity inquisition;
iii. the Trial Judge was perhaps confused into thinking that the Appellant Defendant
might be somewhat insane (just by reason of describing them) when the Trial
Judge should better have thought that Federal Magistrate Daniel O'Dwyer and the
Plaintiff First Respondent's counsel might be somewhat insane (by reason of
them making them).
34. The Trial Judge:
a. Should have ruled that Federal Magistrate Daniel O'Dwyer and the Plaintiff First
Respondent's counsel Graeme Devries had both committed contempts of the Federal
Parliament, the State Parliament, the Federal Magistrates Court and the Victorian
Page 18 of 36
8/14/2019 Notice of Appeal Court of Appeal Fourth Restatement 2090615
19/36
Supreme Court, for their respective parts in the making of the Contemptuous Federal
Magistrates Court Orders;
b. Should have ordered that these proceedings number 9665 of 2007 not be re-set down for
trial until the Appellant Defendant had first been given reasonable opportunity to appeal
the Contemptuous Federal Magistrates Court Orders and have them set aside, so that
they did not unlawfully prejudice the Appellant Defendant's ability to defend himself (and
to present his counterclaims) in these proceedings.
Failure to Consider the Consolidation Application
35. The Trial Judge compounded his errors of process described above because he should not have
rejected the Appellant Defendant's application on 2 December 2008 that the original proceedings
number 9665 of 2007 and the one month old proceedings number 9263 of 2008 (in which the
Appellant Defendant had restated his counterclaims against the three Respondents) needed to
be heard together.
36. The Trial Judge should have considered:
a. the Appellant Defendant's twenty plus page submission of 2 December 2008;
b. the Appellant Defendant's pleadings, namely his Defence and Counterclaim prepared
and filed in proceedings number 9263 of 2008;
c. the Appellant Defendant's summons (in proceedings number 9263 of 2008) that was
returnable on 1 December 2008 (but not heard) seeking to have the two proceedings
consolidated and heard jointly, with pleadings in one proceedings being treated as
pleadings in the other, and evidence in one proceedings being treated as evidence in the
other.
37. The Trial Judge reluctantly received the Appellant's twenty plus page submission of 2 December
2008 but returned it to the Appellant Defendant within less than 3 minutes, manifestly without
proper consideration; The Trial Judge refused to receive or review a copy of his Defence and
Counterclaim filed in proceedings number 9263 of 2008.
Page 19 of 36
8/14/2019 Notice of Appeal Court of Appeal Fourth Restatement 2090615
20/36
38. The Trial Judge should have either adjourned the Appellant Defendant's application for
consolidation of the two sets of proceedings or should himself have made orders for the two sets
of proceedings to be consolidated, all as part and parcel of the orders necessary for pre-trial
stages to be completed before the proceedings number 9665 of 2007 could be re-set down for
trial.
Refusal to allow the Appellant Defendant to proceed without revised pleadings
39. The Trial Judge repeatedly, wrongly:
a. Refused to allow the Appellant Defendant to amend his counterclaims filed in
proceedings number 9665 of 2007 (in effect, to expand them as filed in proceedings
number 9263 of 2008) on the same basis that the Trial Judge allowed the Plaintiff First
Respondent's counsel to amend her Statement of Claim, three days into the Trial; and
b. Refused to allow the Appellant Defendant to try his claims of ulterior purpose against the
Plaintiff First Respondent and especially against the Second and Third Respondents,
without the necessity of formal pleadings, despite the Trial Judge having the power to
allow the Appellant Defendant's case to proceed on these grounds without necessity of
written pleadings, and despite there being no injustice to (especially) the Second and
Third Respondent's, whose counsel admitted at Trial were aware all along of the
Appellant Defendant's statements informing them that the Plaintiff First Respondent's
Claims were fraudulent and as such oppressive, vexatious and oppressive.
40. The Trial Judge should have allowed the Appellant Defendant to try his claims against each of
the Respondents as restated by the Appellant Defendant in his counterclaims filed in
proceedings number 9263 of 2008.
Summary of First Grounds of Appeal - Denials of Fair Hearing and Natural Justice
41. By reason of:
Page 20 of 36
8/14/2019 Notice of Appeal Court of Appeal Fourth Restatement 2090615
21/36
8/14/2019 Notice of Appeal Court of Appeal Fourth Restatement 2090615
22/36
44. The Trial Judge should have dismissed the Plaintiff First Respondent's Claims on the basis that
on the evidence brought by her to Trial she had failed to satisfy the Trial Judge on the balance of
probabilities as to any of the following three things (especially as she had to demonstrate all
three to him to succeed in her Claims):
a. that she had lived under the same roof as the Appellant Defendant for at least 2 years
ending no later than 2 years before late November 2007 (the date of her Statement of
Claim);
b. that she had so lived with the Appellant for (a relevant and sufficient part of) that period
as part of a bona fide domestic couple relationship and not on some other basis; and
c. that she made direct and indirect, financial and non-financial contributions towards the
well being of the Appellant Defendant sufficient to warrant the Judge attributing to her a
corresponding percentage interest in the Appellant Defendant's properties.
45. Additionally, or alternatively, if there was scope for the Trial Judge to correctly find (in fact and in
law Plaintiff) that the First Respondent successfully demonstrated all three of these things to the
Trial Judge on the balance of probabilities, then the Trial Judge should have found, again on the
balance of probabilities, that the negative contributions of the Plaintiff First Respondent from May
2007 were sufficient to warrant the Judge attributing her a diminished (and in fact a negative)
interest in the Appellant Defendant's properties.
The "paucity of the [Plaintiff's] evidence"
46. The "paucity of the [Plaintiff's] evidence" complained of by the Trial Judge can be summarised as
follows:
The Paucity of the "romantic relationship" evidence and the contrary romantic
relationship evidence
a. The Plaintiff First Respondent claimed to have lived in a domestic couple relationship
with the Appellant Defendant from late 1998 up to and including May 2007;
Page 22 of 36
8/14/2019 Notice of Appeal Court of Appeal Fourth Restatement 2090615
23/36
b. At trial the Plaintiff First Respondent produced evidence by way of two Valentine Cards
dated February 1999 and February 2000, which were evidence of a romantic relationship
of sorts with the Appellant Defendant during 1999 and that it had ended by February
2000.
c. The Plaintiff First Respondent failed to produce any evidence at Trial demonstrating any
romantic relationship with the Appellant Defendant at any time after 2000.
d. The Appellant Defendant produced evidence at Trial by way of independent witnesses,
admissions by the Plaintiff First Respondent at Trial, including extracts from her
handwritten journals and diaries) of the Plaintiff First Respondent's romantic relationships
during 2000 and 2007 with other men including:
i. Her (married with children) boyfriend Peter Cockram (between 2001 and 2002,
and possibly starting in 2000 and possibly ending in 2003 or later);
ii. Her (married with children) boyfriend, Marc (starting in 2006, possibly September
2006 and ending in 2007 or possibly according to the Plaintiff First Respondent's
testimony continuing into 2008);
iii. Her live-with boyfriend, Yuri (starting in 2007 or possibly 2006 and possibly still
continuing as at the Trial).
e. The Appellant gave evidence at Trial of the Appellant Defendant's monogamous romantic
relationships with other women, namely:
i. With Elizabeth (between early 2004 up to the end of 2006); and
ii. With Stella (from January 2007 up until September 2007),
and he further gave evidence at Trial why, for their personal safety, he did not wish to risk
calling Elizabeth or Stella, or his (estranged but still legally married wife) Julie Johnson as
witnesses.
Page 23 of 36
8/14/2019 Notice of Appeal Court of Appeal Fourth Restatement 2090615
24/36
The paucity of the "living under the same roof" evidence
f. The Plaintiff First Respondent failed to produce at Trial any evidence demonstrating that
she and the Appellant Defendant had lived together under the same roof at any time
during the period from late 1998 to December 2007, except for the (irrelevant) period of
May 2001 to July 2003 (being an period too early and therefore irrelevant to the Plaintiff
First Respondent's Claims even without having to consider her further claims that she
and the Appellant Defendant were living under the same roof as a de facto couple). [The
Appellant Defendant has at all times admitted to the extent that he shared his homes with
the Plaintiff First Respondent and some/all of her children during this period because she
and the children would otherwise have been homeless, but has at all times refuted that
he and she were a couple even during that limited period).
g. The Appellant Defendant:
i. produced independent evidence at Trial confirming that the Appellant Defendant
and the Plaintiff First Respondent did not live under the same roof at any time
prior to June 2000 (being the date that the Appellant Defendant and the Plaintiff
First Respondent jointly registered the birth of the Plaintiff First Respondent's third
and youngest child the Birth Certificate stating their respective addresses at that
date.
ii. Produced independent evidence at Trial (by way of the testimony of an
independent eye-witness) demonstrating that the Plaintiff First Respondent lived
as a single mother with her three children at the house 166 Queen Street Altona
at all relevant times from June 2006;
iii. Produced independent evidence at Trial (by way of the testimony of independent
eye-witnesses and formal residential tenancy agreements) demonstrating that theAppellant Defendant lived in an apartment (909 and then 2302) at 668 Bourke
Street Melbourne, some 15 20 kilometres distant from the Plaintiff First
Respondent, at all relevant times from July 2003;
Page 24 of 36
8/14/2019 Notice of Appeal Court of Appeal Fourth Restatement 2090615
25/36
h. At Trial the Plaintiff First Respondent's counsel pointed to a few documents of the
Appellant Defendant's (documents that her Counsel could not have seen prior to 2
December 2008) that linked him to his property 2 Dorrington Street Point Cook, but those
linkages were circumstantial and remote and did nothing more than evidence the
Appellant Defendant's ownership of that property. [And being so tenuous and
circumstantial and ambiguous, these did not constitute evidence of the Appellant
Defendant actually living at that address from July 2003 and certainly did not carry the
same weight or refute the unambiguous independent evidence presented at Trial
demonstrating that the Appellant Defendant lived at Bourke Street Melbourne at all
relevant times from July 2003.
The paucity of the "contributions" evidence
i. The Plaintiff First Respondent failed to produce at Trial any evidence that at any time
during the relevant period (that is, at any time prior to May 2007) she had any source of
income or money out of which she could have financially supported the Appellant
Defendant.
j. Accordingly, the Plaintiff First Respondent failed to produce at Trial any evidence that she
financially supported the Appellant Defendant.
k. The Trial Judge should have dismissed the Plaintiff First Respondent's Claims solely by
reason of her failure to produce any evidence to support her claims of "contributions" and
should have held.
l. The Appellant Defendant produced at Trial evidence in the form of copies should have
been fatal
The paucity of the Plaintiff's excuse for not bringing any evidence to Trial
m. The Trial Judge rightly refused to accept the Plaintiff First Respondent's wild
unsubstantiated claims that the Appellant Defendant in August 2007 burgled her home
and stole her evidence (the 'Dingo Stole the Appellant Defendants evidence' claims,
as the Appellant Defendant described them at Trial):
Page 25 of 36
8/14/2019 Notice of Appeal Court of Appeal Fourth Restatement 2090615
26/36
i. The Trial Judge could not lawfully make such findings having regard to the
principles in Briginshaw v Briginshaw (and the seriousness of any allegations of
any impropriety or deceit made against the Appellant Defendant as a solicitor of
18 plus years good standing;
ii. The Trial Judge rightly found that her claims were illogical;
iii. Nevertheless the Trial Judge was sufficiently distracted by her claims that:
1. the Trial Judge failed to properly apply the principles in Jones v Dunkel (it
following from the fact that the Plaintiff First Respondent's solicitors and
counsel subpoenaed the Appellant Defendant's mortgagees to produce
copies of his loan and banking documents instead of proper discovery and
pre-trial steps, there was no excuse for the Plaintiff First Respondent's
solicitors not subpoenaing the Plaintiff First Respondent's employers (if
she had any), banks (if she had any) and even the Australian Taxation
Office's records for her (if they have any) to deliver evidence in Court (if
there were any) of her having any sources of income;
2. The Trial Judge failed to properly carry through with his findings regarding
the Plaintiff First Respondent's credibility:
a. That she had lied to the Trial Judge in claiming that she made
financial contributions to the Appellant Defendant's deposits for his
properties;
b. That she had lied to the Trial Judge about complying with Justice
Wheelan's pre-trial discovery orders of March 2008 (As the Trial
Judge found, the Appellant Defendant found most of the
documents she was supposed to deliver to the Appellant
Defendant in March 2008 had been left abandoned by her at the
Point Cook house in December 2008 and he produced these as
Exhibit ## on the resumption of the Trial on 9 February 2009);
Page 26 of 36
8/14/2019 Notice of Appeal Court of Appeal Fourth Restatement 2090615
27/36
c. That she had burgled the Appellant Defendant's home in
November 2007 and stolen substantial personal and business
records and equipment belonging to the Appellant Defendant and
then lied to the Police in December 2007 and to the Second and
Third Respondents and to Justice Wheelan in March 2008, and to
the Trial Judge in December 2008 claiming to have handed all of
the stolen things to the Police (As the Trial Judge found, the
Appellant Defendant found more of the documents and equipment
she was supposed to have handed over to the Police in December
2007 and to the Second and Third Respondents in March had
been left abandoned by her at the Point Cook house in December
2008 and he produced these as Exhibit ## on the resumption of
the Trial on 9 February 2009)
THIRD GROUNDS OF APPEAL MATHEMATICAL MISCALCULATIONS
47. Even on the assumption that the Appellant Defendant and the Plaintiff First Defendant had been
a de facto couple for 9 years, the Trial Judge erred in finding that the Plaintiff First Respondent
made positive contributions to the Appellant Defendant's assets:
a. The Plaintiff First Respondent did not produce any evidence at Trial of even a dollar of
income or money during any of the relevant period from which she could have supported
b. The Trial Judge's wrong finding (based on the strongly urged deceptions of the Plaintiff
First Respondent's counsel, and ignoring the Appellant Defendant's Exhibit 14 four full
years worth of fee invoices) that the Appellant Defendant was living beyond his means
and dependent on financial support from an unidentified source, even if that story were
true, was not per se evidence that the Plaintiff First Respondent had the means to be or
was a source of financial support for the Appellant Defendant.
c. The Trial Judge erred in this finding as it was totally contradictory to the independent
evidence and the Plaintiff First Respondent brought no evidence to trial to support it.
Page 27 of 36
8/14/2019 Notice of Appeal Court of Appeal Fourth Restatement 2090615
28/36
48. Even if the Trial Judge had been correct in the assumption that the Appellant Defendant and the
Plaintiff First Respondent were a de facto couple for 9 years, and his assumption that the
Plaintiff First Respondent had a source of money other than the Appellant Defendant during the
relevant period, and that the Plaintiff First Respondent financially supported the Appellant
Defendant (whether he needed it, or as in fact, he didn't need it) the Trial Judge erred in finding
that the Plaintiff First Respondent's contributions were worth 50% of the Appellant Defendant's
assets:
a. The Plaintiff First Defendant's contributions as home-maker were, according to the
evidence, more negative than positive and could not be measured as the equal of six
ordinary reasonable "committed and devoted couples";
b. According to the evidence, at least two, and probably all three of the Plaintiff First
Respondent's children were not biologically or legally the Appellant Defendants;
c. The Appellant Defendant was on the evidence rarely at the Plaintiff First Respondent's
premises during the relevant period so there was hardly any scope for him to receive
the benefit of any "non-financial contributions" even if the Plaintiff First Respondent were
capable of making them.
d. The Trial Judge failed to take into account the negative financial contributions caused tothe Appellant Defendant by the Plaintiff First Respondent and her lawyers (including the
Second and Third Respondents) heavy handed use and abuse of the caveats that they
struck over the Appellant Defendant's properties notably the Altona property where she
was in residence, causing a $226,000 negative contribution that in the wash-up the
Plaintiff First Respondent should have to bear as to 100%.
FOURTH GROUNDS OF APPEAL: TRIAL JUDGE IGNORED IMPACT OF MY CALDERBANK
OFFER ON ISSUES OF COSTS:
49. On 1 April 2008 the Appellant Defendant offered the Plaintiff First Respondent a property free
from encumbrances (the Appellant Defendants remaining Hoppers Crossing property recently
valued by the Court at $250,000) plus up to $50,000 to pay her new lawyers (Berry Family Law,
barely 3 weeks in the saddle). An offer some 2 to 3 times more generous than the amount the
Page 28 of 36
8/14/2019 Notice of Appeal Court of Appeal Fourth Restatement 2090615
29/36
Trial Judge ordered me to pay her in February 2009. The only catch, aware of Ms 1999s mental
problems (as her lawyers almost certainly were also by then) the Appellant Defendant stipulated
that the house be put in her 8 year old daughters name (in trust). A might generous Calderbank
offer, even if rejected by the Plaintiff First Respondents lawyers as not to their liking. More than
enough to make the Plaintiff First Respondents lawyers liable to pay the Appellant Defendants
$900,000 in legal costs (incurred to Sutton Lawyers Pty Ltd) under Rule 63.23 and thereabouts.
FIFTH GROUND OF APPEAL: TRIAL JUDGES FAILURE TO CONSIDER DAMAGES
FROM BURGLARY AND THEFT OF PERSONAL BUSINESS EQUIPMENT, RECORDS
AND EVIDENCE
50. the Plaintiff First Respondents burglary on the Appellant Defendant did a lot more than $25
damage. The Trial Judge erred in fact and law by fixing his damages as a nominal $25 and by
refusing to hear the Appellant Defendant on issues of quantum of damages. These exceeded
the $105,000 the Appellant Defendant was ordered to pay the Plaintiff First Respondent, by a
considerable margin.
FIFTH GROUND OF APPEAL: NO PRE-TRIAL STEPS / INDEPENDENT REPRESENTATION
51. These denials of natural justice, had a number of serious flow on consequences, including
depriving me the sort of pleadings and representation the Appellant Defendant would have had if
this had gone to trial according to ordinary procedures, after discovery etc, on a proper estimate
of 4 6 weeks trial (up from the 3 4 weeks the Appellant Defendant had estimated in March
2008), with a likely trial date of late 2009 or early 2010.
52. For example, if the Appellant Defendant had been independently represented, there is a much
better chance the Trial Judge would have required the Plaintiff First Respondents lawyers to
wait until pre-trial stages like discovery had been completed, and pleadings settled after
discovery, before the matter proceeded to trial. The Trial Judge might have understood that the
Appellant Defendants claims against the Plaintiff First Respondent and against her original
solicitors needed, at the very least, to be tried according to the Appellant Defendants November
2008 draft (amateurish, holding) pleadings, not the February 2008 ones.
Page 29 of 36
8/14/2019 Notice of Appeal Court of Appeal Fourth Restatement 2090615
30/36
53. Another flow on of being unrepresented by experienced lawyers at this bush wack ambush trial
on 2 December 2008, the Appellant Defendant now realises with the Appellant Defendants 20
days of novitiate experience as an (self-) advocate that the Appellant Defendant should not have
put himself into the witness box at Trial. Given the paucity of the Plaintiff First Respondents
evidence, and the Appellant Defendants inability to run the Appellant Defendants counterclaims
since the Trial Judge was holding me to totally inadequate, raw, February 2008 draft pleadings,
the Appellant Defendant should have just moved for a no case to answer and orders for costs
under rule 63.23 (mind you, that was more or less what the Appellant Defendant was compelled
to do and did do in any case as the transcripts show). Imagine if the Plaintiff First Respondents
counsel, Graeme Devries, had been deprived the opportunity to scandalously and unjustifiably
attack me in the witness box (cross examining me with documents stolen by his client, not
discovered to me before the Trial), his using documents he had only seen first time on 2
December 2008 that were mere indications of the Appellant Defendants ownership of the
Appellant Defendants properties (notably the Appellant Defendants Point Cook properties) and
his corrupt attempts (which the Trial Judge loved) to puff indicia of ownership into indicia of
residency (despite eye-witness and other independent evidence point out the falsity of his
submissions). Neither Devries nor Justice Kaye would have got away with a fraction of their
unlawfulness if the Appellant Defendant had the benefit of a properly timed and sequenced trial,
with properly drafted pleadings and proper legal representation.
54. With independent experience legal representation, the Plaintiff First Respondent would have
been properly cross-examined by a lawyer who knew what they were doing. Not a complete
novice, like the Appellant Defendant, who had no idea until going into the witness box on the
fourth day that when the Judge said he had read all the papers he meant just the Statement of
Claim (as amended that morning, day 4 of the Trial) and the Appellant Defendants February
2008 holding draft defence and counterclaims. What kind of Court is it where the Judge doesnt
read the hundreds of pages of affidavits and exhibits before the trial? A whole body of evidence
that the Appellant Defendant thought the Judge had read and understood, and the Appellant
Defendant finds out after the Plaintiff First Respondents case had closed that they werent even
in evidence because the Appellant Defendant had been ambushed and didnt know that the
Appellant Defendant had to bring these materials into evidence by cross-examining her. Add to
this the Appellant Defendants physical pain, chronic back ache meaning the Appellant
Defendant had been awake and standing upright (unable to sit or to lay down) from 6 am
Monday 1 December 2008 through until about 3 am on Friday December 2009.
Page 30 of 36
8/14/2019 Notice of Appeal Court of Appeal Fourth Restatement 2090615
31/36
SEVENTH GROUNDS OF APPEAL: JUDICIAL BIAS
55. The Trial Judge exhibited gross judicial bias by reason of his grossly incompetent and unlawful
decision making, such as in the following 11 examples of serious abuse, bias perhaps amounting
to misconduct in office and contempt of the laws of this land and perversion of the course of
justice in these proceedings.
a. The insanity inquisition described above is this now part of the laws of Victoria and/or
Australia that a defendant has to pass a pre-trial sanity test? Does it apply to all
Victorians/Australians, or only self-represented ones? Does it only apply to solicitors of
18 years good standing, or does it apply to legal practitioners of more or of less years
good standing?
b. The No-consolidation application The Trial Judge didnt even receive or look at the
Appellant Defendants November 2008 redrafted pleadings until 5 February 2009 and
even then, only for the purposes of throwing out the Appellant Defendants subpoena that
the Legal Services NON-Commissioner give evidence explaining her dereliction of
statutory duties, AND to order me to pay that statutory authorities legal costs of evading
judicial accountability for her statutory derelictions.
c. The Trial Judge failed to hear the Appellant Defendants submissions that He have
regard to the issues of perversion and contempt raised in the Federal Magistrates Court
Orders made in September 2008 by Federal Magistrate Daniel ODwyer (at the strong
urging of and substantially as drafted by the Plaintiff First Respondents counsel Graeme
Devries (re-issued version of late February 2009 attached). The Trial Judge erred by
failing to apply contempt laws against James Turnbull, Peter Berry, Graeme Devries and
Daniel ODwyer. The Trial Judge erred by failing to apply contempt laws and perjury laws
against the Plaintiff First Respondent and her ex-boyfriend Peter Cockram and against
the perjuring contemptuous process server Wittekind who pretended to serve subpoena
on Peter Cockram, but didnt.
d. The Trial Judge demonstrated bias and prejudice in his grumblings against the Appellant
Defendant, including his immortal 10 Plaintiffs died while this Trial has been running
Page 31 of 36
8/14/2019 Notice of Appeal Court of Appeal Fourth Restatement 2090615
32/36
suggesting the Appellant Defendant was a sinner for standing tall and defending himself
against this outrageous claim brought by the Plaintiff First Respondents lawyers with a
paucity of the evidence, suggesting that the Appellant Defendant should just hand over
all the Appellant Defendant owns lock and key to them cause theyre nice and (allegedly)
hes not. The Trial Judge failed to show any concern about the mortality rate for
Defendants in waiting. Nor did the Trial Judge show any concern for the Appellant
Defendants obvious physical pains especially during the first week of the Trial when the
Appellant Defendant, on medial advice of his local general practitioner, should have been
in hospital with back pain, not defending himself in a Court room.
e. The Trial Judges take on Mr C.Ps evidence (apparently Peter Cockram, self-confessed
stalker of the Plaintiff First Respondent is entitled to anonymity under section 121 of the
Family Law Act, but the Plaintiff First Respondent, the Appellant Defendant and their
respective children are not. The Trial Judge should have found that Peter Cockram was
lying in the box. The Trial Judge erred for finding that the explanation for Peter
Cockrams lack of evidence must have been that the Appellant Defendant was a crazy
person who subpoenaed a total random stranger into the witness box. The Trial Judge
should have recalled Peter Cockram after a Purana Taskforce Senior Detective was able
to give evidence to show that Cockram, like his ex-girlfriend the Plaintiff First Respondent
was lying and perjuring in the witness box, to face contempt and perjury charges.
f. The Trial Judge erred in His publishing a no case to answer judgement on the Appellant
Defendants February 2008 version of the Appellant Defendants counterclaim against
Harwood Andrews Lawyers (something rarely sought and very rarely given according to
their Legal Practitioners Liability EVASION Committee funded counsel) on 11 February
2009, even before the Appellant Defendant had given the Appellant Defendants closing
submissions, and where the circumstances and evidence all showed that the Appellant
Defendants case against them speaks for itself and that the Second and Third
Respondents have no answer to the case.
g. The Trial Judge demonstrated substantial prejudice and bias (and perhaps also more
than a little misplaced paranoia) in His assorted abuses of the Appellant Defendant for
wasting time (No, the Plaintiff First Respondent lawyers wasted the Courts time and his,
and wasted the Appellant Defendants assets bringing this blackmail claim in the first
Page 32 of 36
8/14/2019 Notice of Appeal Court of Appeal Fourth Restatement 2090615
33/36
place), raising irrelevant issues (No, these were relevant issues, just that the Trial
Judge didnt want them raised because he didnt want to deal with them), and that the
Appellant Defendant (never having been an advocate before and hopelessly out funded
and out-manoeuvred by a raft of gross misconduct and abuse) was trying to take control
of His Court room.
h. The Trial Judge demonstrated substantial prejudice and bias in his abuse of the Appellant
Defendant on 3 December 2008 for wanting to do as the Appellant Defendants local GP
(one block from the Court, on corners of William and Bourke Streets, and one block from
the Appellant Defendants former home of 5 years) and take the Appellant Defendants
chronically sore back to St Vincents Hospital for X-rays and treatment the Appellant
Defendant should have been in hospital that week not in a Court Room.
i. The Trial Judge demonstrated substantial prejudice and bias by insisting that the
Appellant Defendant start the Appellant Defendants closing submissions on the
afternoon of 11 February 2009 when the Appellant Defendant (For the benefit of any
Amnesty International or Rightswatch people reading the transcript in the near future,
had the luxury of almost 3 hours sleep for three nights in a row) was barely able to stand
on the Appellant Defendants feet (suffering the extra blows of being labelled that morning
by Ms Sofranou and by the Trial Judge as a faux human rights lawyer, while Harwood
Andrews were labelled as good dutiful lawyers just going about their jobs properly to
protect their client). What a sick cruel joke meinen Frauen und Herren and Answuralten.
What a sick joke on society. What criminal contempt and perversion.
j. On 17 March Associate Justice Gardiner revealed that he would not hear any part of
these proceedings between myself and Graeme Devries (the 7th Defendant by
Counterclaim in the Appellant Defendants restated counterclaims recorded as
proceedings number 9263 of 2008) because of their 30 year friendship, and that all of the
judges in the Masters Court, with the exception of Associate Justice Daly are similarly
afflicted by conflict (of the kind that the High Court described in Johnson v Johnson
[200] 118 CLR 488 though not found to be present in that case). This explains the
actions past of Associate Justice Kings and the actions past and present of Associate
Justice Evans. Given this high strike rate in the Masters Court, the Appellant Defendant
suspect that a similar high strike rate applies (but has not been disclosed) by the Judges
Page 33 of 36
8/14/2019 Notice of Appeal Court of Appeal Fourth Restatement 2090615
34/36
in the Trial Division Courts (including perhaps Kaye J, Cavanough J, Hansen J) and
perhaps also in the Court of Appeal (including the Chief Justice herself). This needs to
be investigated as it goes a long way to explaining some of the extraordinary conduct of
those Judges in previous hearings in these proceedings. Even by the time of the first
Practice Court hearing in February 2008, these claims between the Plaintiff First
Respondent and the Appellant Defendant had ceased to be a legal battle between her
and the Appellant Defendant (all the Appellant Defendant wanted and want to do is see to
the safety and security of her children whilst still providing for the Appellant Defendants
own). Since February 2008 the Plaintiff First Respondent has never stood to benefit
economically from these legal proceedings. Since February 2008 this has been a battle
of oppression by a very legally and financially powerful clique (the Plaintiff First
Respondents lawyers, the Plaintiff First Respondent4 lawyers 8 lawyers, the Judiciary
and powerful but corrupt statutory bodies like the Legal Practitioners Liability EVASION
Committee and the Legal Services NON-Commissioner) against the Appellant
Defendant. A real coalition of Goliaths versus a single solitary David (a David reduced
by early financial oppression to Tom Thumb dimensions).
k. The Trial Judge showed substantial prejudice and bias by congratulating (rather than
punishing) the Plaintiff First Respondents lawyers for initiating the unlawful insanity
inquisition against the Appellant Defendant at the outset of the Trial (despite telling them
at first that they had no right or standing to do so). That insanity inquisition failed against[the Trial Judges] better judgement on that day. But that insanity inquisition created an
environment of insurmountable prejudice and bias against the Appellant Defendant that,
added to and on top of all of the other substantial miscarriages of justice that had
occurred, meant that it was impossible for the Trial Judge to give, or to be seen to give,
the Appellant Defendant an unbiased and non-prejudicial hearing.
l. The Trial Judge showed substantial prejudice and bias at the closure of the Trial by
congratulating the Plaintiff First Respondents lawyers for a job well done, in the mostdifficult of circumstances.
DATED: 12 15 June 2009
Page 34 of 36
8/14/2019 Notice of Appeal Court of Appeal Fourth Restatement 2090615
35/36
HAROLD JAMES JOHNSON
Solicitor and Appellant
Page 35 of 36
8/14/2019 Notice of Appeal Court of Appeal Fourth Restatement 2090615
36/36
IN THE SUPREME COURT OF VICTORIA AT MELBOURNE
IN THE COURT OF APPEAL Court No. 3731/09
BETWEEN
HAROLD JAMES JOHNSON Appellant
and
PIPPIN PATRICIA CRESSY and othersand others according to the Schedule
Respondents
SCHEDULE OF PARTIES
HAROLD JAMES JOHNSON Appellant
and
PIPPIN PATRICIA CRESSY First Respondent
and
DAVID WILLIAM HANLON Second Respondent
and
HARWOOD ANDREWS PTY LTDABN 98 076 868 034
Third Respondent
Top Related