Brothel Gate Day 14 AM Only

1MR DEVRIES: The matter is still proceeding Your Honour.
2HIS HONOUR: Thank you Mr Devries.
3(JUDGMENT FOLLOWS)
1.LL:MH 11/02/09 FTR:1A 192 DISCUSSION

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1
10
11 - - -
12
1.LL:MH 11/02/09 FTR:1A 193 JUDGMENT

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1MS SOFRONIOU: If it please the court. Your Honour, I have a
2 costs application flowing from that.
3HIS HONOUR: Yes.
4MS SOFRONIOU: Is this a convenient time to make it?
5HIS HONOUR: It probably is, it seems to me the alternative is
6 for you to await the completion and adjudication of the
7 proceeding. I see no reason to do that and it would seem
8 to me that your side has been put to pretty great
9 inconvenience in this case and ought to have some
10 completion.
11MS SOFRONIOU: Thank you Your Honour, if I may do that then.
12HIS HONOUR: Yes.
13MS SOFRONIOU: The application is actually not costs on the
14 usual basis but costs on a basis that best indemnifies
15 the 2nd and 3rd defendants to the counterclaim, so an
16 indemnity costs order. There is a narrower and a broader
17 basis for making that so I will try not to make it a long
18 submission Your Honour, that because it's not just a
19 usual order for costs, it requires submissions in my
20 submission.
21HIS HONOUR: Yes I follow.
22MS SOFRONIOU: The narrower order if I can call it that basis
23 for the order is a Calderbank letter which I would seek
24 to hand up to Your Honour. It was addressed to Sutton
25 lawyers on 18 August 2008, I have a copy for my friends.
26HIS HONOUR: Yes thank you.
27MS SOFRONIOU: I will give Your Honour a chance to look at it
28 briefly but it pretty much is an offer to bear own costs
29 on the ground that the counterclaim is discontinued. In
30 my submission that is a real compromise because in a case
31 of this length Your Honour would easily apprehend that

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1 the costs are a significant amount and in fact this
2 letter predated the bulk even of the preparation of the
3 hearing. So all of that could have been compromised.
4 The date for acceptance of the offer was up until
5 1 September and no acceptance of the offer was received.
6 Your Honour has of course considered these kinds of
7 applications frequently, I can cite a decision of Your
8 Honours where Your Honour had in the Wallace case.
9HIS HONOUR: That's right.
10MS SOFRONIOU: Which is I think the case Your Honour had
11 averted to where even a successful party by its conduct
12 of proceedings was subject to Your Honour's discretion
13 that it didn't obtain all of the costs.
14HIS HONOUR: That's right, my recollection is in fact I reduced
15 the costs awarded to the successful party.
16MS SOFRONIOU: By a percentage.
17HIS HONOUR: Because of the time wasting by that party in the
18 proceeding.
19MS SOFRONIOU: That's right. Your Honour, I can hand up a copy
20 of that judgment if Your Honour would like to see it.
21HIS HONOUR: If you would, it seems a long time ago now, do you
22 have a copy for Mr Johnson.
23MS SOFRONIOU: I'm afraid I don't, having just found it, but
24 I'm happy to - I'm not applying it of course, seeking to
25 apply it, because that was where a party was successful.
26HIS HONOUR: No, I understand that, it really just reminds me
27 of some of the principles, but also I think there were
28 Calderbanks weren't there.
29MS SOFRONIOU: That's why I'm referring to it Your Honour, and
30 I can put it in a nutshell that Your Honour was just
31 considering on the facts of that case, where there were

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1 three Calderbank letters, Your Honour went through the
2 facts of each of those which is specific to that case and
3 not applicable here, and in the case of each Your Honour
4 gave a ruling as to whether or not acceptance was
5 reasonable or not reasonable.
6HIS HONOUR: That's right, and often it depended on the time of
7 the offer, the time made available to the recipient of
8 the offer to consider that they give reasonable
9 consideration to the offer made.
10MS SOFRONIOU: Yes, given the likelihood of the arguable case,
11 the likelihood of success.
12HIS HONOUR: Yes.
13MS SOFRONIOU: This letter did go onto give - it did make
14 assertions that in fact there had been competent action
15 that no duty of care was owed directly to Mr Johnson and
16 that steps had probably been taken, enough to put him on
17 notice in my submission to be able to consider then
18 whether or not he could save himself the costs of the
19 trial and the exposure to the cross defendants costs.
20 Now if Your Honour were minded to uphold that argument,
21 of course the indemnity costs period would follow from
22 the next day following expiry of the offer which is
23 2 September 2008. That is the narrower claim for
24 indemnity costs.
25 Your Honour, the wider claim is for entire indemnity
26 costs, not limited by date and my reason for that is not
27 based on any Calderbank letter or document, it arises out
28 of the management of theta se and is squarely a matter
29 for Your Honour's discretion. The grounds are these,
30 Your Honour will be aware that both Mr Hanlon and
31 representatives of Harwood Andres, the two cross

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1 defendant parties have been sitting in court every
2 sitting day since 2 December 2008, which is quite proper
3 as they're parties, and they have been exposed to
4 litanies of repetition as to their fraudulent - allegedly
5 fraudulent conduct, criminal conduct, breach of human
6 rights conduct, professionalism, capacity.
7 It is one thing to say well Your Honour's judgment
8 having had a trial of the matter and not just deciding it
9 on an interlocutory basis, serves as some vindication to
10 say that they are cleared of those allegations.
11However, that, in my submission, does not totally end the
12 subject. I acknowledge that a losing party is not to be
13 penalised for having lost a case. It is an extra - what
14 I would call highhanded, and I'm using the language of
15 authority that I will take Your Honour to - conduct in
16 raising fraud and in advancing it in this way that
17 justifies this kind of costs ruling. By upholding a no
18 case to answer submission, Your Honour didn't hear
19 competing evidence and decide, "Well, on the relevant
20 Briginshaw, in this case, test, I prefer the one side."
21 Your Honour has said that Your Honour could not at law
22 find.
23 Now, on that basis, given the specific authorities
24 and rules that say that fraud, with its connotations of
25 moral culpability, are not to be pleaded lightly, are not
26 to be bandied around in a lightweight manner, in my
27 submission the only answer for that kind of highhanded
28 behaviour is to put the parties in as much a position, at
29 least financially, as if they hadn't been joined. And in
30 as much as costs do have a gap between the usual
31 party/party basis and an indemnity basis, it is the one

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1 thing that the courts can do to address at least that
2 kind of behaviour.
3 Mr Johnson has been exquisitely sensitive of the
4 alleged breaches of his own human rights and he's waxed
5 long and large over several days before this court about
6 that, but he overlooks the fact that the most noble
7 invocation of human rights is to defend the human rights
8 of others. And in this case, where no one doubts Mr
9 Johnson may be terribly aggrieved by matters arising
10 between him and Ms Cressy, he has apparently shown no
11 compunction and no sensitivity to the rights of the legal
12 practitioners of all people who had the mishap to
13 actually go about doing their job to represent a
14 litigant.
15 He has had no compunction in stating so it echoes
16 around this room for the last several days the kinds of
17 what I call expensive words. I call them expensive
18 because had they been said on the street down in William
19 Street in a sufficient volume, that could have led to
20 very expensive consequences for Mr Johnsons potentially.
21 However, because they're said under the privilege of
22 legal process he gets to say them for nothing. And as I
23 say, it's one thing to say, "Well, no one need take it
24 seriously, the 2nd and 3rd cross defendants have won
25 their case."
26 The law doesn't hold that that's necessarily the
27 position. Legal practitioners therefore may not plead
28 fraud unless they have been satisfied themselves of
29 evidence that makes out that case, and that in my
30 submission is an acknowledgement of the seriousness
31 within which the law says, "Well, we'll give you the

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1 privilege to say that without being open to defamation or
2 liable, but in return you the pleader have to observe
3 your own restraint in doing that." That perhaps, if you
4 like, in Mr Johnson's language is a form of human rights
5 to use the language that he invokes, and he has not taken
6 the slightest step to afford those rights to the legal
7 practitioners, whatever be his complaints against
8 Ms Cressy.
9 Now, in that regard, I had cross-examined Mr Johnson
10 from pages - and I probably don't need to waste Your
11 Honour's time by looking at it, I can give Your Honour
12 the transcript references - from p.878 until 887 of the
13 transcript, and I can tell Your Honour that I referred
14 Mr Johnson to Exhibit H2, which was a letter from him to
15 Richard Anderson at Harwood Andrews of 17 March 2008.
16 And in it I referred him to Paragraph 7 of it, where
17 Mr Johnson was noting that Harwood Andrews were
18 pigheadingly continuing to purport to represent
19 Ms Cressy notwithstanding the mounting illegalities of
20 this, that he didn't approve of that.
21 He repeated that in Paragraph 7D, and at Paragraph
22 10 came the threat: "Do not be surprised" - and this is
23 at p.880 of the transcript or in Paragraph 10 of Exhibit
24 H2 - "Do not be surprised by the consequences of this,
25 which is likely to be a substantial hit to your firm's
26 bottom line." Your Honour having made Your Honour's
27 judgment, I'm seeking to ameliorate the potential hit to
28 that bottom line that's brought about by Mr Johnson's
29 conduct.
30 I can also refer Your Honour to p.883 of the
31 transcript, Exhibit 38. Harwood Andrews were not the

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1 recipients of a similar kind of disapproval and threats
2 of joinder. I refer to that only to show that it is a
3 course that Mr Johnson had resort to, that because he has
4 agreed - and I don't doubt for a minute the subjectivity
5 of his sense of grievance - he then takes the step of
6 saying, well, any step he takes, no matter whether it's
7 unfair or properly pleaded or properly brought at law,
8 appears to him to be justified. Why? Because he is the
9 subject of an unfair claim by the plaintiff.
10 The 2nd and 3rd cross defendants do not for a minute
11 buy into the dispute between the plaintiff and the
12 defendant. They say merely that if the defendant has
13 been ill used, Your Honour is hearing the matter, he will
14 win the case with costs in the usual manner.
15 Unfortunately the point of view that says, "Because I
16 have a sense of grievance, that justifies any step I then
17 take to the point of joining legal practitioners who may
18 be professionally involved in the matter," that is where
19 we say the trigger highhanded of behaviour resulting in a
20 right to indemnity costs arises.
21 The final example that I refer to in cross-
22 examination of Mr Johnson was at p.886 of the transcript
23 where I referred him to Exhibit 36 and this, perhaps was
24 less of an intimidatory statement than of a concession.
25 Exhibit 36 - - -
26HIS HONOUR: It's a letter of 6 March.
27MS SOFRONIOU: That is so Your Honour, Paragraph 2 should begin
28 "You use the word 'choice' a lot in your facsimile".
29HIS HONOUR: Yes.
30MS SOFRONIOU: Further down in that paragraph, Mr Johnson has
31 written "I issued proceedings against Hanlon & Harwood

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1 Andrews on 18 February 2008 by way of cross-claims in
2 Supreme Court proceedings No 9665/2007 in which I am
3 defendant by original proceedings". This is the relevant
4 bit, Your Honour. "I did so in desperation, due to
5 Ms Cressy's, Hanlon's & Harwood Andrew's refusal to
6 negotiate discuss the situation as sensible adults and to
7 clarify your claim against one or two of my properties."
8 Pausing there, the idea that the refusal to clarify
9 a claim results in these kinds of extraordinary
10 allegations of all but criminal and fraudulent and
11 malicious conduct is what again tips this matter into
12 more than just a normal costs outcome.
13 Your Honour, there were additional concessions of
14 the kind that I again, I don't propose to take Your
15 Honour to, at different times Mr Johnson has acknowledged
16 the incomplete or inadequate nature of the cross-claim.
17 He's usually done so in an attempt to widen the
18 allegations made, but I also rely on that as being an
19 acknowledgement that this, in fact, does fall within the
20 Exhibit 36 attempt. It really is a half-baked attempt to
21 try and get some attention of the kind that he wanted
22 and, in fact, a refusal of Mr Hanlon and Harwood Andrews
23 to act any further and, to some extent he's achieved that
24 because, of course, having become parties they did in
25 fact cease to act, so what he couldn't do by asking, he's
26 done by bringing these claims which Your Honour has
27 dismissed without there being a case to answer.
28 My authority for stating that - sorry Your Honour,
29 it was Transcript 296, the reference to cooking up the
30 cross-claim draft that I've just referred Your Honour to.
31 My authority – and again, I don't have multiple copies of

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1 these, having just turned it up Your Honour but I'm happy
2 to, having shown Your Honour, for Mr Johnson to have it,
3 is Australian Guarantee Corporation Ltd v. de Jager,
4 J-a-g-e-r, a decision of Justice Tadgell of this court
5 dated 23 March 1984. It's reported in Vol. 1984 of the
6 Victorian Reports, at p.483.
7 The bulk of the judgement is of no help to Your
8 Honour - - -
9HIS HONOUR: Yes.
10MS SOFRONIOU: - - - it was effectively an enforcement action
11 by a finance company against two mortgagors, a husband
12 and wife.
13HIS HONOUR: There was some forgery or something of the -
14 wasn't there, in that case.
15MS SOFRONIOU: Yes. The finance company had wanted to proceed
16 against husband and wife, notwithstanding that they had
17 evidence before them to show that her - the witnessing of
18 her signature was not a valid one and amounted to,
19 effectively an equitable fraud, notwithstanding that they
20 had that information in their own possession, they
21 proceeded with the case to enforce.
22 The story came out, the wife succeeded and at the
23 very end of the judgment at p.502 and this is the
24 relevant part for Your Honour's purposes, Justice Tadgell
25 states "Secondly, counsel has submitted that
26 Mrs de Jager's costs in the action brought against her by
27 A.G.C., should be ordered to be taxed as between
28 solicitor and client. I agree with that, upon the facts
29 as I have found them, the pursuit of the action was, in
30 my opinion, a high-handed presumption. In the end it was
31 conceded for A.G.C. that Mrs de Jager's signature was a

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1 forgery. Having pursued the action with the knowledge of
2 French's conduct" - that's the relevant officer involved
3 in the forgery, Your Honour - - -
4HIS HONOUR: Yes.
5MS SOFRONIOU: - - - "that it had and failed A.G.C. allowed
6 itself a luxury. The court ought to do what it can to
7 ensure that Mrs de Jager is not out of pocket over it."
8 I'm happy to hand that up to Your Honour.
9HIS HONOUR: No, I'm familiar with it, you might provide it to
10 Mr Johnson.
11MS SOFRONIOU: Certainly, it's the final page of the judgment
12 that I'm handed over now.
13HIS HONOUR: Your reading it out was to (indistinct) the
14 authority.
15MS SOFRONIOU: Thank you, Your Honour. The final point in
16 this - - -
17HIS HONOUR: I have some recollection when Mr Johnson was in
18 the witness box, I was concerned about the nature of the
19 allegations he was persistently making, and that I raised
20 with him, his knowledge of the ethical rule that
21 allegations of fraud and the like ought not to be made
22 save on a sound foundation, and my recollection is that
23 Mr Johnson has stated that he is familiar with that
24 principle.
25MS SOFRONIOU: Yes, Your Honour. And in fact one doesn't need
26 to be - I can find - - -
27HIS HONOUR: You don't really need to have that drawn to your
28 attention by a judge, I would have thought, if you've
29 been working in this profession for the better part of
30 two decades.
31MS SOFRONIOU: In my submission, you don't need to be a

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1 professional advocate to understand that banding around
2 allegations of fraud isn't done lightly, as I say, try
3 and do it outside of a court room and serious financial
4 practical consequences can enew That's general law that
5 people on the street are aware of.
6HIS HONOUR: The basic principle stems from the fact that it's
7 really a responsibility that is a part and parcel of the
8 privilege that practitioners have in court documents and
9 the court to make particular allegations, and they are
10 grave and serious, and practitioners may only do so where
11 there is proper basis to do it.
12MS SOFRONIOU: That so, and I think it's Rule 1310.3 that
13 addresses that. Your Honour doesn't need authority from
14 me. I have it, Your Honour, does - that says that fraud
15 should not be bandied around the court and should be
16 withdrawn if it's not made out. The final point that I
17 have and I will close on this, Your Honour, I want to
18 make the point for the benefit of those who are sitting
19 behind me who have been hearing all of this and haven't
20 been able to speak for themselves, it will be a fine day
21 when any solicitor coming to do their job because they
22 are giving legal services in a very emotional
23 environment, the idea that they can be exposed to fraud,
24 when one comes back to it what is the claim even at it's
25 height, Mr Johnson was worried about the basis for the
26 caveat over Queen Street; the caveat that wasn't even
27 over Queen Street at the time when the - - -
28HIS HONOUR: - - - sale to Mr Cudmore.
29MS SOFRONIOU: - - - sale of that property was there. That
30 doesn't deter him. He so wants to know what the claim is
31 like. How can one possibly represent such a - and I

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1 don't need to repeat the (indistinct) that he has thrown
2 at the plaintiff. Well I can tell Mr Johnson, that as
3 counsel, because of the cab rank rule we represent a
4 whole lot of people that may not be considered ultimately
5 honest or popular or likeable or nice in some kind of way
6 and solicitors in practice, although they don't have a
7 cab rank rule, are in no better position in some ways;
8 particularly in a family law or in a relationship area,
9 the kinds of emotions and the kind of difficulties that
10 that involves, you would think would carry enough of the
11 stress and difficulty just by doing your job and getting
12 involved in the maelstrom of the parties' emotions to
13 then be exposed to personal attacks on the basis of fraud
14 and malice which have to be notified to your insurer
15 which become a matter of potential professional
16 discipline interest which trigger all kinds of financial
17 consequences and then to sit in court and hear the
18 proceedings extended day upon day upon day as Your
19 Honour's directions are repeatedly ignored, all I can say
20 is Mr Johnson will never understand perhaps the
21 forbearance that he has been offered.
22 I hope the transcript will reveal that I have tried
23 to give him notice of my applications and warnings as
24 much as possible and as for Your Honour's own
25 forbearance - - -
26HIS HONOUR: Yes, I think I may interrupt you for a minute. It
27 has been clear that you have shown extraordinary
28 forbearance on behalf of your clients; that you have
29 extended to Mr Johnson every consideration; that you have
30 gone beyond your ethical duties in seeking to advise him
31 well in advance of matters which you did not need to

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1 advise him of so that he is prepared to meet them. In
2 that way you have honoured the highest traditions of the
3 legal profession and the Bar.
4MS SOFRONIOU: I am indebted Your Honour but I suppose the
5 point being made that - rather than fishing for that as
6 it were - - -
7HIS HONOUR: No but - - -
8MS SOFRONIOU: The forbearance that he's been shown has meant
9 that the case has lasted as long as it has in the face of
10 conduct where had anyone in horse hair tried it, we would
11 have been down in the cells cooling our heels until we
12 purged our content.
13HIS HONOUR: Without doubt.
14MS SOFRONIOU: But, Mr Hanlon and Harwood Andrews have, in a
15 sense, had to, and again they were parties - they're part
16 of this - they have had to sit there while that's
17 happened. The only thing the court can do in light of
18 Your Honour's judgment is to adopt the approach of
19 Justice Tadgell in my submission and to say as much as
20 it's possible Mr Johnson has vented his spleen; he has
21 expressed his protest; he has invoked litigation
22 procedure; and he's had his day in court. No matter how
23 inexperienced a practitioner he is he's had forbearance
24 but the rules of fairness do not deter because he's an
25 advocate of 11 or 12 days or whatever it is and having
26 had that luxury, if I can call it that, given that there
27 was never any case to answer, I would ask that Your
28 Honour put these parties in as much of a position as if
29 it hadn't happened and in that regard a costs order in
30 their favour other than the usual party/party one that
31 most fully indemnifies them is the one thing that perhaps

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1 will lead to that result in my submission.
2HIS HONOUR: Thank you Ms Sofroniou. Mr Johnson.
3MR JOHNSON: Thank you, Your Honour. Ms Sofroniou is clearly a
4 gifted orator but I must say I had some concerns.
5 Amongst her gifts she has misconstrued my position and
6 myself quite substantially but I'm quite used to that
7 these days, Your Honour. If I may run through, kind of
8 in reverse, last in, first out, the points that
9 Ms Sofroniou made, I've not said that the conduct of -
10 sorry no I'll pass on that point. Lets go to p.878-887
11 discussion of the transcript - - -
12HIS HONOUR: Sorry, what page?
13MR JOHNSON: Ms Sofroniou was discussing Exhibit H2, Your
14 Honour, and a passage where Ms Sofroniou had me under
15 cross-examination which is transcribed at pp.878 to 887.
16 I was pointing out to my good friend, Richard, the
17 chairman of Harwood Andrews that they were being very
18 pigheaded in promoting Ms Cressy's actions against me,
19 given that it was quite clear that I had no case to
20 answer to Ms Cressy's claims. She had no evidence within
21 Briginshaw or any other standards of proof that a
22 plaintiff has to comply with in this jurisdiction I used
23 to believe in terms of necessity to state a case before a
24 defendant even has to answer it.
25 Ms Sofroniou said words to the effect that whatever
26 the unfair claim by the plaintiff against me - now I'm
27 wondering was that a statement by the counsel for the
28 former lawyers - the original promoters of Ms Cressy's
29 wild unsubstantiated claims against me. Was that an
30 admission that the plaintiff's - - -
31HIS HONOUR: Mr Johnson, yet again, you may have twisted it -

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1 what has been said in court. What Ms Sofroniou and I
2 were saying was no matter what your subjective feel is
3 about the fairness or otherwise that the claim by
4 Ms Cressy against you it did not justify you making wild,
5 unsubstantiated allegations against her client under
6 cover of privilege.
7MR JOHNSON: Your Honour - - -
8HIS HONOUR: That was what she said.
9MR JOHNSON: Your Honour, your and my reasonable minds differ
10 on that, and that's an issue I'll take up at a next level
11 if my submissions in summarising the case don't succeed
12 before Your Honour in this trial.
13HIS HONOUR: Certainly.
14MR JOHNSON: Ms Sofroniou then went on to say that while
15 (indistinct) claiming at the plaintiff that would be
16 adjudicated by the court, and if he won his case he would
17 win with costs, that's the usual process, the usual
18 manner. Ms Sofroniou did say there, "If Mr Johnson
19 demonstrates" - no, it's the other way round, isn't it?
20 "If Ms Cressy's legal team fail to demonstrate her case,
21 she will lose the case, and Mr Johnson will" - I don't
22 think win is the right word ever in these circumstances,
23 but Mr Johnson would be entitled to his costs. That is
24 what Ms Sofroniou said.
25 The original legal team promoting Ms Cressy's wild
26 and unsubstantiable - still unsubstantiated, still wild
27 claims against me set out in the caveats and the original
28 statement of claim, they knew all along, they -
29 Mr Turnbull, perhaps at Mr Devries's involvement, drafted
30 an affidavit for Ms Cressy and at the 6th of - no, sorry
31 - yes, 6 June 2008 where she said she did not have the

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1 money to pay her lawyers' costs. "Please can we have
2 judgment without a trial, Mr Kavanagh?", on 20 June 2008,
3 "Judgment without the trial because I can't afford a
4 trial."
5 That affidavit is on the record. Harwood Andrews,
6 David William Hanlon knew all along, and this was the
7 nasty extortion sting in the tail, Your Honour. I could
8 go through the trial with Ms Cressy. Eventually I would
9 suffer all the commercial pain that I've suffered, I've
10 lost two of my properties, the banks have sold me up.
11 Even before the matter gets to trial, Your Honour, I've
12 lost, I've lost, I can't win my case, I have lost two
13 thirds, the most valuable asset in my property portfolio
14 I have lost. Now, sir, I don't need to talk to the Dalai
15 Lama, I need to talk to Geoffrey Robertson on this point.
16 Another tyrannies of trial, Mr Geoffrey Robertson
17 has written the biography of an amazing man, Mr John
18 Cooke. He was the man of common stock like myself, who
19 was charged with the brief to prosecute King Charles.
20 He's also the man who invented the privilege against self
21 incrimination, he did that at a trial - - -
22HIS HONOUR: That book was written to exemplify the Cavran
23 principle, which is written (indistinct), but which
24 nearly every solicitor in this State of any reasonable
25 standing also (indistinct), but as Ms Sofroniou is
26 stating, it was not for her client to stand in judgment
27 of Ms Cressy's claim in accordance with this ancient
28 principle for which Mr Cook was hung, drawn and quartered
29 in excruciating circumstances. In honour of that
30 principle, solicitors throughout the State take on a
31 number of different cases without standing in judgment of

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1 their clients. That is the point made by Mr Cook, and
2 it's good that you call him to mind.
3MR JOHNSON: Thank you, Your Honour, and it is indeed. On p.33
4 of his book in the chapter A Man of the (indistinct),
5 Geoffrey Robertson quotes an English translation of
6 Clause 29 of the magna carta, and according to the
7 British Library it's actually Clauses 39 and 40. The
8 original is in Latin of course, but Geoffrey Ellison
9 gives a translation, and I won't say the words aren't
10 relevant here. "No free man shall be deprived of his
11 freehold or liberties or otherwise destroyed, nor will we
12 pass upon him or condemn him but by the lawful judgment
13 of his peers or by the law of the land. To no man will
14 we sell, to no man will we deny or delay justice or
15 right."
16 Now, I have actually been deprived of two of my
17 freeholds before judgment has been passed on me. I have
18 been deprived of the ability to present my case properly,
19 because I don't have litigation funding lawyers who are
20 happy to drop down $300,000 worth of time on a timesheet
21 and require the plaintiff to only put up $3000 at the
22 commencement of the proceedings. They promoters will be
23 - whatever orders Your Honour makes, quite obviously if
24 they're unfavourable to me in any way, shape or form I
25 need to appeal them.
26 But if my appeals are unsuccessful, the litigation
27 promoters are successful, it won't be an adjustment of
28 any assets from myself to Ms Cressy, it will be an
29 adjustment of my assets straight to the litigation
30 funders. Ms Cressy will have her debt, her considerate
31 debt, over $300,000 to them reduced not even by a third,

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1 Your Honour. She will owe them four or five times as
2 much as what the litigation funders extract through this
3 court process out of me.
4 Now, Mr John Cooke also wrote the first ever ethics
5 treatise in the English language actually, not the old
6 Norman language the lawyers used in the 1640s, the
7 vindication of the professors and the profession of law.
8 Now, that is described by Mr Robertson in Chapter 3. I
9 do have a copy, the only copy in Australia was actually
10 in the New South Wales State Library, I tracked down a
11 copy, I have a copy on my desktop, I'm in the process of
12 translating it into modern English for publication with
13 annotation, subject to whether the recognition Geoffrey
14 Robertson wants for his amazing work in that book and
15 bringing my attention to it.
16 My human rights legal practice firm, Sutton Lawyers
17 Proprietary Limited, works on that basis. Apart from
18 myself there are two other people that I'm assisting.
19 Human rights atrocities, surprise, surprise, derive from
20 the Family Law Court jurisdiction, Your Honour. I'm
21 assisting them on a pro bono basis as per those
22 principles set out in Mr John Cooke's vindication. I've
23 also founded a law reform and human rights organisation,
24 One Law Foundation, it is dedicated to a number of
25 things, dealing with human rights and the protection of
26 victims of human rights abuse (indistinct) the government
27 and by the court and legal process.
28 The first one of those is this embarrassing
29 situation we had where today Australian lawyers, court
30 lawyers are the only court laws in English speaking
31 countries who can't be sued for negligence or other

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1 misconduct in their theatre of operation, this theatre,
2 Your Honour. Now, if a dentist does work for a barrister
3 and the dentist does work badly, the barrister can sue
4 for negligence. But if the barrister mishandles a
5 dentist's case in court, the dentist can't sue the
6 barrister. That is not the law in England since Y2K when
7 11 law lords to nil overruled that position. It's
8 actually not the case in New Zealand, Canada, Singapore,
9 had never been the law in Scotland apparently, a dentist
10 can sue a lawyer, even a court lawyer. There's no
11 privilege, no specialness attaching to the barrister,
12 just as there's no specialness, no privilege attaching to
13 the dentist.
14 So that is the first layer of privilege that we're
15 attacking. It also is – because that's a law made by
16 Australian Courts, the Australian Courts are an arm of
17 government, it's actually a law that puts this nation of
18 ours in violation of the United Nations. Let me quote
19 this from George Williams – Professor George Williams.
20 And also a member of the New South Wales Bar. His book,
21 A Charter of Rights for Australia, he was one of the
22 architects of our Charter of Human Rights and
23 Responsibility Act.
24 "In 1991, Australia acceded to the optional protocol
25 to the international covenant on civil and political
26 rights." And what that means is that if we have any arms
27 of government whether it's Parliament or Courts making
28 laws which violate those International Human Rights set
29 up in the 1962 covenant I believe it is, even though we
30 didn't sign on until 1991, once all domestic court
31 remedies are exhausted, the person – and this might be

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1 myself in years to come – can take the complaint to the
2 United Nation Human Rights committee. The United Nations
3 - - -
4HIS HONOUR: Mr Johnson, I've allowed this diatribe to continue
5 now for 15 minutes which is yet another waste by you of
6 precious court time. I've done so, to try to see whether
7 there's anything in it which might answer the submissions
8 made by Ms Sofroniou and I'm afraid I haven't been able
9 to find anything. I've also interrupted to try to give
10 the short hand writers a little bit of a rest from your
11 very fast spoken and irrelevant diatribe.
12 But most importantly, I've done so because it's
13 important that you focus your mind on the points made by
14 Ms Sofroniou who's made a claim by her client against you
15 for – that I make an order for solicitor client for
16 costs. Which is done so on a number of basis, the
17 Calderbank offer, the gravity of the allegations made by
18 you against your client which I have found to be entirely
19 unsubstantiated, so much so, that I've exceeded to her
20 application to dismiss the case on a no case basis. On
21 the fact that you have taken an extremely serious step in
22 bringing to court and suing practitioners who are doing
23 nothing more than acting as they are required to act for
24 a client in litigation against you.
25 On the additional basis that you have wilfully
26 flouted directions and rulings by me which have been
27 designed to try to shorten this case so that hopefully by
28 the end of the case, something is left for the parties,
29 rather than have the mortgagees of these properties take
30 them in the meantime. All those basis are being put by
31 Ms Sofroniou in the clearest terms so that you can

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1 understand them and that you can respond to them. Now
2 you're simply not assisting yourself in responding to
3 those submissions by the type of speech that you've just
4 made to me. I invite you to direct your mind to the
5 applications made. It's a serious matter for a judge to
6 order solicitor/client costs on a basis – in a case such
7 as this, particularly with a litigant against whom that
8 application is made, is self represented.
9 It's important that you use your legal knowledge and
10 your expertise in trying to answer Ms Sofroniou's
11 submissions. Judges are assisted by competing arguments,
12 they're not assisted by the type of emotional speech that
13 you have made, simply to try to vent your own feelings in
14 this case. Now, focus on the submissions and reply to
15 them, please.
16MR JOHNSON: Your Honour, I was in the process of reassuring
17 Ms Sofroniou that I may focus on - - -
18HIS HONOUR: Ms Sofroniou needs no reassurance. What I need is
19 argument. Judges are assisted by argument and I do not
20 want to do an injustice in making costs orders which had
21 you addressed me proper arguments, I might not make.
22 Now, I do this for your own good. Just concentrate on
23 the substance of your arguments and rebut them if you
24 can.
25MR JOHNSON: On the first of several of Ms Sofroniou's
26 submissions which I wish to rebut, I wish to say that
27 while I may have waxed on about my own human rights being
28 violated, but I am also (indistinct) in the protection of
29 human rights of others. But from a law firm and through
30 my law reformed human rights foundation. The second
31 point, Ms Sofroniou suggested that the things that I've

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1 said about David William Hanlon and Harwood Andrews
2 Family Lawyers would be expensive words if I said them in
3 Collins Street and I'm being somehow (indistinct)
4 underhanded by saying them here at the Bar table under
5 privilege. Well, the first privilege that one law
6 foundation is looking to strike down so that the Common
7 Law of Victoria and Australia is like the common law of
8 other English speaking countries, is the right of the
9 dentist to sue the doctor, the same way that – sorry –
10 for the dentist to sue the barrister the same way that
11 the barrister can sue the dentist.
12 I'm embarrassed to have that privilege. I should be
13 accountable to the highest standards of the law, I should
14 even set an example, I should be accountable as an
15 officer of this court, even higher standards than the
16 ordinarily laws of negligence or the ordinary laws of
17 defamation. I'm embarrassed. I don't want that
18 privilege against being better than or above the laws of
19 defamation that apply to ordinary people in this country,
20 Your Honour.
21 I would also say that I thank Ms Sofroniou for her
22 words, saying that my defence and counter claim are half-
23 baked. They are half-baked, I've been saying that, not
24 in such an equivalent little package, half-baked. They
25 are, Your Honour, words that were produced by me in a
26 handful of minutes. With a handful of nights sleep, a
27 handful of minutes sleep, in order to get something in
28 paper for a Practice Court Trial. A hearing in a
29 jurisdiction's court that I didn't even know existed,
30 until I received the paperwork from Harwood Andrews.
31 I had – really they were just drafting points.

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1 Facts that I was concerned about that would then be given
2 to, as I saw it, an experienced qualified litigation
3 lawyer, (indistinct) someone who opened a book of
4 pleadings in the last two decades Your Honour. Certainly
5 someone other than myself to translate those into
6 legalese.
7 I accept the difficulties with that document. I
8 never went back and amended it personally because I
9 didn't feel that I had the required expertise to do it
10 myself. I would take something that was half-baked and
11 make it even worse. I always thought and even on 2
12 December, when this hearing deceivingly set down for a
13 two day trial, notwithstanding that the pleadings weren't
14 settled.
15 The fact that the plaintiff goes on to amend the
16 statement of claim two days later, I think, vindicates
17 him in saying that neither party's pleadings were
18 settled. There'd been no directions for discovery. Your
19 Honour, I discovered three bagsful of evidence that the
20 plaintiff had stolen and concealed so that I couldn't use
21 them in evidence. Not that she had stolen or got by any
22 means to prove her case. Not that I needed possession of
23 to disprove her case because I don't have to disprove
24 anything against the plaintiff, Your Honour. I can just
25 speed things up. I have done so I believe with the
26 exhibited material from my examination-in-chief of
27 Mr Ioannou and I have by delivering up those three bags
28 of stolen loot.
29 Now, if ever there was a proceeding that was not
30 ready to go to trial on 2 December surely this is that
31 one. I tried to make that application to have what were

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1 really the one case spread over two sets of pleadings
2 because of the way it worked brought together. I made an
3 application that was listed before Master Evans on
4 1 December last year. That, Your Honour, is the only
5 hearing in all of this court process that I have had
6 notice of that I have not turned up to without notice. I
7 did not attend a directions hearing before Master Kings
8 and I sent a note explaining why I wouldn't be there. I
9 did not attend the second part day Practice Court hearing
10 on 14 July. There had been a whole day practice hearing
11 in the Practice Court before Justice Kavanagh on 20 June
12 which Justice Kavanagh himself said in the opening
13 minutes of that morning that was an abuse of process.
14 Hearings in the Practice Court are meant to take no more
15 than two hours total.
16 So it was just extraordinary. I still don't for the
17 life of me understand what happened that day. How the
18 judge could exercise his limited jurisdiction so
19 expansively. Make orders effectively judgment without a
20 trial, Your Honour, and without following proper process
21 not only of this court but the Practice Court
22 jurisdiction - - -
23HIS HONOUR: That has absolutely nothing to do with
24 Ms Sofroniou's application and you know it. You just
25 focus on her arguments.
26MR JOHNSON: The point is Ms Sofroniou is suggesting that I
27 acknowledge that my pleadings were an half baked attempt
28 to intimidate or get Harwood Andrews off the file.
29 That's certainly not the case. They were half baked
30 simply because I do not have the skill personally nor, as
31 it turned out, do I have the resources. I might pause at

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1 this - - -
2HIS HONOUR: Mr Johnson, however they were drafted they
3 contained what could only be very serious allegations
4 against anyone. Involvement in theft is itself an
5 allegation of criminality. Fraud, malice which run
6 throughout it. You are a lawyer. You know the meaning
7 of those words. You chose to put those words in a
8 document in February 2008. The case was in and out of
9 this court on different interlocutory applications during
10 that year. It's not as if it went to sleep and you came
11 to court on 2 December on that pleading. I have
12 constantly reminded you throughout the case that common
13 law courts decide cases on pleadings. They're the
14 allegations you came to this court to sustain. They're
15 the allegations which not only failed but in which
16 there's not a scintilla of evidence in support of them.
17MR JOHNSON: Your Honour, they are the allegations - - -
18HIS HONOUR: They were not just infelicitous words and in my
19 view it is, with respect, disingenuous of you to suggest
20 that. They were plain ordinary words which have
21 particular meanings well understood by any lawyer that
22 has not even finished their articles.
23MR JOHNSON: Your Honour, may I say two things in response.
24 The first is I came to this court on 2 December with
25 those words in a document. Much better words in another
26 document. The pleadings in the other half of this case,
27 9263 of 2008. In expectations that finally after all
28 this time given that it'd been misleadingly informed to
29 the court in my absence and me not even being told about
30 the (indistinct) for two months after it had been set,
31 expecting that we would get some orders for directions at

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1 the very least, a date by which pleadings had to be
2 settled and other directions for discovery and the like.
3 I did not come to court on 2 December to argue my case
4 based on that - - -
5HIS HONOUR: You came to court with a case that had been set
6 down for trial and I was conducting the trial and you
7 knew it.
8MR JOHNSON: My submissions of that morning which were hijacked
9 by a very embarrassing preliminary application by Mr Rees
10 which he had no standing to make under Order 15. An
11 ambush, Your Honour, certainly no right to make it on the
12 morning of what you'd planned to be a trial date, Your
13 Honour, as it was officially listed. We wasted a lot of
14 time there. A distracted time from the real issue which
15 was how to make sure that all the pleadings were put
16 together in a proper order so that it is tried once. Not
17 in this situation we have now where a little bit of the
18 case has come forward. The bulk of the case is yet to
19 come. That is the reason I came to court on 2 December.
20 Now the second point I wanted to make - I've
21 actually lost that point, Your Honour. Is there some way
22 Your Honour might be able to prompt me on this
23 second - - -
24HIS HONOUR: I'm not sure what point you're about to make.
25MR JOHNSON: It's difficult. There's so many points flowing
26 through my head at the moment, Your Honour.
27HIS HONOUR: Well I've explained to you the points that
28 Ms Sofroniou. One is on the Calderbank offer. Secondly
29 effectively was on the allegations made by you not only
30 in your counterclaim but from the privileged position at
31 the Bar table totally unsubstantiated. The next point is

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1 the purpose for which you brought this proceeding to
2 intimidate Harwood Andrews out of doing what they are
3 required to do. That is act for their client. The next
4 matter she raised was your conduct which has protracted
5 this hearing. I probably haven't done full justice to
6 all the arguments advanced by Ms Sofroniou but they're
7 the major points that she has advanced in favour of an
8 order for solicitor client costs against you.
9MR JOHNSON: Thank you, Your Honour. I've found my point in
10 that process.
11HIS HONOUR: Good.
12MR JOHNSON: I'm indebted. There was a suggestion that I had
13 some knowledge that fraud and malice were naughty words
14 for a lawyer to use unless he's got all of his evidence.
15 As I say I am not experienced by any means despite
16 producing a 167 page defence and counterclaim in the
17 other proceedings. I've read some pleadings - books on
18 pleadings since the night that I cobbled together the
19 defence - amended defence and counterclaim that went on
20 to trial, Your Honour. It wasn't until much - February
21 last year, reading through this book by Christine Parker
22 and Adrian Evans, two academic lawyers, Professors of
23 high regard – Christine is actually an active barrister
24 as well, Inside Lawyers Ethics.
25 There is an amazing chapter that describes the
26 problems in the profession, with what is referred to as a
27 co-regulation with profession by the Legal Services
28 Commissioner – quite extraordinary – I am talking to the
29 chairman of the commission Mr Colin Neave A.M., over
30 that, and indeed, with the Attorney-General.
31 We are in dialogue. It wasn't until I read this and

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1 the difficulty of – it is crazy to bring an application
2 based in fraud, Your Honour, because it is impossible to
3 get the proof, unless you are in the fortunate position
4 of someone like White Industries where Mr George Herscue
5 – his group - I think, that the little subsidiary
6 involved there for Caboolture Park Shopping Centre went
7 into liquidation.
8 Normally those sorts of communications which hark
9 back to the questions I have tried to put - well, I did
10 put to Mr Hanlon – I put some of them – there was no
11 point continuing with my list of questions – because the
12 answer came back "It's privileged, it's privileged".
13 Privilege was waived on that occasion by Caboolture
14 Park Shopping Centre Pty Ltd, because it was in the hands
15 of the liquidator and by spilling the beans on the
16 naughty things that the Flower & Hart law firm did, and
17 the senior barrister Dr Ian Callinan, who of course, now
18 sits on the High Court, hearing cases about ethical
19 issues such as the Daughter v. Denke case in 2005, which
20 re-affirmed that Australian speaking Australian lawyers
21 are more special than English speaking lawyers in other
22 countries, and no, dentists can't sue barristers in
23 Australia, even though English dentists can sue English
24 barristers.
25 The naughtiness there was exposed, - the beans were
26 spilled, - because the liquidator of the Caboolture Park
27 Shopping Centre wanted to get some money in for his poor
28 defrauded creditors, so he sold the privileged
29 information to the party who was damaged by it, being
30 White Industries Pty Ltd.
31 That occurred after the trial had been heard. It had

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1 been established that the proceedings that the Caboolture
2 Park Shopping Centre had issued against White Industries,
3 the builder of the Caboolture Park Shopping Centre, had
4 no prospect of success. It was known all along by the
5 lawyers. White Industries had already won that case Your
6 Honour. It was solely at the point of working out what
7 their costs would be. That is the point at when the
8 liquidator sold the beans on the naughty lawyers who
9 briefed them to run that scandalous case.
10 It was only on that basis that the naughtiness of
11 the lawyers were exposed. The privilege was lost. Now,
12 unless you are unfortunate – well, I guess no one is
13 fortunate in that circumstances – victim of case like
14 that - of unfortunate, unwilling, reluctant defendant –
15 even if he'd become a plaintiff by counterclaim like I
16 had to defend yourself, you are very unlikely to get that
17 privileged material.
18 Now, I did put some questions to Mr Hanlon as to
19 – my thinking would be that whatever evidence could have
20 been available to justify the decision to issue caveats
21 and issue proceedings in respect of Miss Cressy's claim
22 – the maximum amount of evidence that would have been
23 available at any point of time, is the evidence that has
24 been given to you in this proceeding, Your Honour.
25 Now, I don't believe that there is any question of
26 legal professional privilege attaching to me asking how
27 that evidence was obtained, if it is hard evidence rather
28 than oral testimony by a person of dubious credibility,
29 but we will come that in submissions Your Honour. I don't
30 think there is any privilege attached - - -
31MR DEVRIES: Your Honour?

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1MR JOHNSON: - - - to asking of what point in time – I would
2 ask my learned friend not to interrupt at this - - -
3HIS HONOUR: No, well, it seems to me, I think Mr Devries
4 is about to raise a legitimate matter, because you are
5 simply getting far away from meeting the sovereignised
6 point.
7MR DEVRIES: I have been sitting back because essentially this
8 matter doesn't involve my client, except for the fact
9 that we have to sit through, waiting for our matter to
10 resume, while - - -
11HIS HONOUR: I understand that.
12MR DEVRIES: - - - we go down a path that, in this particular
13 case, is directly abusing Your Honour's rulings on
14 privilege. He is trying to go behind you on this rulings.
15HIS HONOUR: I understand that.
16MR DEVRIES: And, apart from it being, my respectful
17 submission, a further contempt of this court, it is a
18 total waste of time, and it is time that should be better
19 put, in my respectful submission, with getting on with
20 things that are properly before this court.
21HIS HONOUR: Well, Mr. Devries, I thank you for your objection.
22 It is a legitimate and proper objection. The fact of the
23 matter is, that I have, throughout this protracted case,
24 warned the defendant time and time again, that he must
25 firstly address the issues in the case, and secondly, as
26 he full well knows as an experienced lawyer, when a judge
27 makes a ruling, whether he likes it or not, that ruling
28 binds them.
29 Ms Sofraniou, I was absolutely right and I said it
30 yesterday, if Mr Johnson was a member of the Victorian
31 Bar, he would be cited for contempt, and I would be very

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1 surprised if he would be at liberty. His conduct in this
2 case has been so grave in disregarding rulings I have
3 made. It had been deliberately calculated to try to de-
4 rail this case.
5 He understands that as an unrepresented litigant,
6 there are certain liberties and platitudes made available
7 to him. I think not only I, but you too, Ms Sofraniou
8 and Mr Devries, have extended that latitude to him and
9 shown extraordinary patience, that he has abused that
10 time and time again. So I, with respect, agree with your
11 objection and I uphold it.
12 I can do no more than adjure Mr Johnson to again try
13 to do himself some justice by addressing the points made
14 by Ms Sofraniou. He is not responding to them, so those
15 points will stand as good points.
16MR DEVRIES: May it please Your Honour.
17HIS HONOUR: Thank you Mr. Devries. I am assisted by your
18 objection.
19MR JOHNSON: Your Honour, I would like - - -
20HIS HONOUR: Did you hear that, Mr Johnson?
21MR JOHNSON: I hear every word that is said this morning
22 Your Honour.
23HIS HONOUR: Yes, well it is getting to a stage, frankly, when
24 you are getting very close to contempt of court and I
25 don't say that in terrorum at all, but there is a fair
26 warning – you must obey the rulings I have made – there
27 is no sense in arguing against them. The work of this
28 court would be impossible if parties and practitioners
29 constantly flouted rulings of judges, whether they like
30 them or not.
31 You are bound by my rulings. The second point is I

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1 said to you – it is probably close to half an hour ago
2 – after you had already proceeded for 15 minutes on
3 irrelevant diatribe, that it is not helping you not to be
4 addressing the points made by Ms Sofraniou.
5 They are straightforward points, and it's important
6 you do that. Now, if you continue to abuse your
7 privilege position behind the Bar table, I will again
8 reluctantly have to sit you down, because you are not
9 assisting, and the rest of this case must be heard and
10 completed. This court's time cannot be wasted in this
11 unconscious able manner by your conduct.
12MR JOHNSON: Your Honour, may I - - -
13HIS HONOUR: A duty not just to Mr Devries' client,
14 Ms Sofroniou's client, and to yourself, but to other
15 litigants waiting in the wings for me to be available to
16 hear their cases, many of which are very pressing. Now,
17 you proceed.
18MR JOHNSON: Your Honour, may I say three things at this
19 juncture? The first is the suggestion that my use of the
20 words "broad" and "malice" towards Harwood Andrews was
21 inappropriate. I did not have the knowledge of the
22 difficultly before application, I did not have an
23 expectation, even on 2 December, that those words would
24 be the words that we'd be going to trial to. I said that
25 a few times, I need not repeat it. Sorry, I've already
26 spoken on my embarrassment at having any more privileges
27 here at the Bar table than I would have at the corner of
28 Collins Street and Elizabeth Street, Your Honour, I think
29 that's a travesty.
30 I will be submitting in my submissions that it is
31 manifest, even at this stage of the trial, and should be

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1 manifest at the outset, let alone the key decision
2 points, when proceedings were issued, when caveats
3 were issued, that the plaintiff just can't sustain a case
4 against me. I've got no case to answer against the
5 plaintiff, Your Honour. I believe that's the point
6 at which the fraud and the other nasty stuff
7 becomes manifest.
8 I don't have the luxury that White Industries have,
9 I don't have access to written communications from
10 Harwood Andrews to Ms Cressy, to the effect that, look,
11 we don't think you've got a case, but hey, look, this is
12 a very complex, painful process for any man to be
13 subjected to, we can subject him to that, and he will pay
14 out hurt money. I don't have any correspondence from
15 Harwood Andrews to Ms Cressy though, but I do have quite
16 a bit of correspondence from Harwood Andrews to
17 Ms Cressy, including a couple of documents that I handed
18 Mr Hanlon in the box yesterday, because they were left
19 behind in the mess with the stolen loot and the
20 handwritten memoirs that expose 90 per cent of what she
21 said in the witness box to be perjury, Your Honour.
22 I do actually have those communications, but just
23 not quite as lucky enough, and look, I don't want to
24 embarrass my former friends at Harwood Andrews of
25 explaining the nature of the correspondence that I do
26 have, and why it doesn't go into that sort of area, but I
27 missed it by this much, Your Honour, in terms of being a
28 fully empowered White Industries person, the difficulty,
29 of course, being that I didn't become empowered until –
30 gees, I found this documentation – when did I find it,
31 Sunday, just Sunday gone by, just four days ago, Your

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1 Honour, that's when I found it.
2 Now, I don't know how that would fit into the scheme
3 of things, whether it – anyway, I'll let that pass. I
4 don't have the actual memorandum of bias from the
5 Dr Callinan in this case to the partners at Flower & Hart
6 in that case, telling Ms Cressy in that case, look, your
7 claim's worthless, but you can bugger the guys around and
8 delaying commercial tactics, and that may put you in a
9 better negotiating stance when you were sued, because you
10 were blatantly doing things which are not legal. I just
11 didn't – don't have that memorandum.
12 I doubt very much whether one would have been
13 prepared in the circumstances when Ms Cressy has only
14 paid $3000 and been given 300 grand of legal work written
15 down on credit. My last point I wish to make on all of
16 this is that I will be, in my submissions, asking Your
17 Honour yet again, and it's something that I'll be taking
18 up with the Court of Appeal as part of my general
19 application, appealing the orders that Your Honour has
20 already made last week and this week in these
21 proceedings.
22 Your Honour said on 3 December, I believe, in the
23 context of Ms Cressy's application, Mr Devries moving it
24 to amend her statement of claim on the second or third
25 day of the trial, Your Honour educated me to the effect
26 that pleadings can be changed, even right up to before
27 judgment is given, provided no injustice is done to the
28 parties.
29 Now, the parties, and that includes Ms Sofroniou's
30 clients as well as Mr Devries' clients, have known all
31 along that I've been – I'm the White Industries man who

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1 just doesn't have the smoking gun memorandum from the
2 Dr Callinan in this case saying that this is vexatious,
3 this is fraud, your client has no evidence. She could
4 not have had sufficient evidence back then to justify
5 caveats or writs being issued because she hasn't got
6 sufficient evidence in court today. It's manifest, it
7 speaks for itself, res ipsa loquitur, Your Honour. My
8 submission's been very clear on that point.
9 So on that basis, the orders Your Honour made this
10 morning of no case to answer, all that really does mean
11 is when I win my case and cost and damages are awarded to
12 me by Your Honour against the plaintiff, the plaintiff,
13 ho, ho, chuckle, chuckle, as per her – sorry, unintended
14 pun there, Your Honour, her affidavit filed in these
15 proceedings dated 6 June this year, I won't go into the
16 embarrassing content of that affidavit, because that
17 hearing has passed, the plaintiff can't meet any order
18 for costs or damages.
19 The plaintiff got interlocutory relief. When I
20 challenged the fact that she couldn't even meet an order
21 for costs and damages, she was still given the relief,
22 Your Honour, it's extraordinary. The lawyers have known
23 all along, therefore, on Callinan's principles, if Your
24 Honour does allow me to substitute the words
25 "malfeasance" for the words "fraud" and "malice" in my
26 counterclaim, which I'll be asking you to do in
27 submissions later on, Your Honour, that will give
28 me - - -
29HIS HONOUR: The counterclaim has now been dismissed,
30 Mr Johnson.
31MR JOHNSON: That would - - -

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1HIS HONOUR: I've delivered judgment in it.
2MR JOHNSON: That would give Mr Devries personally, and
3 Mr Turnbull and his firm, some benefit, because not only
4 putting my hand into their pockets with an application
5 for costs, I'm not quite sure what we do with damages
6 yet, I don't think we've got that far, Your Honour,
7 against the individual members of Ms Cressy's current
8 legal team,
9 My ability to join in or keep in the family
10 Mr Hanlon & Harwood Andrews lawyers would mean that there
11 would be less money taken out of Mr Devries and
12 Mr Turnbull's pockets because there would be
13 contributions to my costs and my damages by the
14 originators of this very embarrassing set of proceedings
15 brought by the plaintiff.
16 So that's really an issue more for Mr Devries per
17 se, not even his client, Your Honour. Whether or not,
18 Mr Hanlon & Harwood Andrews are kept in these
19 proceedings, and you've already ruled on that, haven't
20 you, Your Honour?
21HIS HONOUR: Yes I have and that's just one more ruling that
22 you simply ignored, edging ever closer to a contempt
23 citation.
24MR JOHNSON: Your Honour did say on 3 December that pleadings
25 could be amended even up to - - -
26HIS HONOUR: They may be amended. I have decided the case on
27 the pleadings between yourself and Mr Hanlon and Harwood
28 Andrews, I have decided that on the evidence adduced
29 there is no case to answer on any of the courses of
30 action pleaded by you and note the proceeding will be
31 dismissed.

2Cressy
1 At the moment, I am hearing and I have heard an
2 application by Ms Sofroniou for costs - costs usually
3 follow the event and they would in this case but she has
4 also made an application for costs on an indemnity basis.
5 I have explained to you the arguments that she has made.
6 You have made a minimal attempt to even apply your mind
7 to them but rather you have sought to, yet again, waste
8 this court's valuable time by venturing into irrelevant
9 matters by further trying to blacken the name of other
10 litigants in this court.
11 Now simply, concentrate on the submissions made by
12 Ms Sofroniou or else I will have to shut you down. This
13 case has gone far too long, thanks to your filibustering
14 and time-wasting.
15MR JOHNSON: Your Honour, I believe I have more than adequately
16 responded to six points coming out of Ms Sofroniou's
17 well-spoken submissions.
18 The last thing I wish to say before I sit down is
19 that really, Your Honour, given that the plaintiff has
20 not demonstrated a case for me to answer, there's no
21 substance, even at trial, let alone when proceedings were
22 issued or caveats issued, to justify the taking of those
23 legal steps by her lawyers. Just as - there's a
24 divergence of using the room as to what the relevant
25 issues are. There's a divergence of using this room as
26 to what this trial is really about.
27 Now, my view is because Ms Cressy simply doesn't
28 even have a case, that isn't the real issue that's in
29 these proceedings. The real issue is why and how these
30 lawyers, who (indistinct) her, they (indistinct) treat
31 her, Your Honour. She only put $3000 key money in right

2Cressy
1 at the very start. She's now got a $300,000 plus debt to
2 the lawyers. Why they thought that they should run this
3 case. Were they hoping to find some evidence when they
4 went subpoenaeing and fishing through my personal bank
5 records off my banks?
6MS SOFRONIOU: Well, I object to this - - -
7HIS HONOUR: I agree, this is entirely irrelevant to the
8 application by Ms Sofroniou. You are, yet again, abusing
9 your position. And as I said to you, Mr Johnson, this
10 court does allow a degree of latitude to unrepresented
11 litigants. But you are no ordinary unrepresented
12 litigant.
13 You have come to this court as a solicitor of
14 20 years call, a solicitor who tells me he has a library
15 full of ethical books, a solicitor who has practised for
16 20 years. You have protested that you know nothing about
17 court procedure, yet when it has suited you, you have
18 shown, if I may say so, commendable ability in particular
19 regards.
20 You have understood the rule against Browne v. Dunn,
21 you have managed to lead five witnesses without asking by
22 and large leading questions. When I explained to you the
23 rule in Jones v. Dunkel, you have well understood it.
24 It seems to me with your commendable intellect, you
25 have been able, when you want to, to direct yourself to
26 the issues. You are deliberately diverting away from
27 them yet again and misusing, not only your privileged
28 position behind the Bar table, but the additional
29 latitude that I and counsel have extended to you because
30 you are unrepresented.
31 But that does not mean that you can continue to wax

2Cressy
1 at large on this. I have warned you on a number of
2 occasions today that unless you address the submissions
3 by Ms Sofroniou and respect the rulings I have made, then
4 I will have to terminate your right of audience on the
5 basis that you are not addressing issues at all but using
6 this court as a forum just simply to vent your own
7 feelings and dislikes. Listen to that warning and adhere
8 to it.
9MR JOHNSON: Your Honour, I feel over flattered by your praises
10 and - - -
11HIS HONOUR: I'm not concerned with your feelings. Would you
12 please address Ms Sofroniou's submissions.
13MR JOHNSON: - - -and over damned by your criticisms, I believe
14 I have fully addressed all of the relevant issues in
15 Ms Sofroniou's submissions and I'm quite comfortable to
16 take my chair.
17HIS HONOUR: Thank you very much for that. Ms Sofroniou, would
18 you like to respond?
19MS SOFRONIOU: I could, but I won't, Your Honour.
20HIS HONOUR: No. I will also give judgment on the spot but I
21 think it might be wiser, given the - or if I try to see
22 if I can sift through what Mr Johnson has said and have a
23 bit of a think about it.
24 I think it is probably better that I give judgment
25 on the (indistinct). Perhaps if I'd stand the matter
26 down for half an hour. Is that convenient to parties?
27MS SOFRONIOU: It's certainly convenient for us, Your Honour,
28 that - - -
29HIS HONOUR: The alternative is I could reserve and give
30 judgment on Monday in your application which - - -
31MS SOFRONIOU: Yes, whatever suits the court, we're in the

2Cressy
1 court's hands - - -
2MR DEVRIES: A break for half an hour is not inconvenient.
3HIS HONOUR: Is that all right? I'm just concerned about
4 breaking for half an hour and wasting or losing more
5 time.
6MR DEVRIES: We've lost so much time through this matter, one
7 way and the other. With greatest respect, half an hour's
8 not going to - - -
9HIS HONOUR: It's a drop in the ocean - - -
10MS SOFRONIOU: Whatever is more convenient to Your Honour.
11HIS HONOUR: I think it's better to try to stem the
12 (indistinct) costs which has been occasioned to your side
13 in this case that I that deliver judgment in half an
14 hour's time.
15MS SOFRONIOU: May it please the court.
16HIS HONOUR: Have a break. I'll say not before 20 past 12.
17MR DEVRIES: May it please Your Honour.
18 (Short adjounment.)
19MR JOHNSON: Excuse me Your Honour, may I address you quickly
20 on two points before you give out your ruling?
21HIS HONOUR: Yes.
22MR JOHNSON: I'll be very brief Your Honour.
23HIS HONOUR: Yes, provided they're relevant.
24MR JOHNSON: Very relevant and very brief, Your Honour. I was
25 thinking about my response to Ms Sofroniou's very well
26 spoken submissions and as sort of a feed back point, we
27 know that court processes are not perfect and the
28 Attorney General's department's reviewing the court
29 system at the moment. There's some room for procedures
30 to move, change, adapt and evolve. Maybe more rumours
31 are needed and maybe it's not necessarily an abuse of

2Cressy
1 processes if some process – the court process we have
2 today can't accommodate some thoughts or some actions of
3 concepts that I've presented.
4 For example, Your Honour, the ruling that you're
5 giving now without reflecting on the transcript of my
6 responses which were delivered at probably about 400
7 words a minute in my speech, perhaps without looking at
8 the transcript in printed form on one side and Ms
9 Sofroniou's on the other side, perhaps the process isn't
10 great that Your Honour doesn't have the luxury of being
11 able to do that exercise before making your ruling.
12 Perhaps, the real abuse, the real pressure is the work
13 load on Your Honour is too great at the moment, too many
14 cases, not enough judges of your calibre Your Honour to
15 hear them all.
16HIS HONOUR: Mr Johnson, this is irrelevant. Judges frequently
17 give extemporary rulings, indeed I could have done so in
18 your case on the application made by Ms Sofroniou however
19 the application made is for an order which is an
20 exception to the rule and I've thought it better that I
21 give it further consideration. It is also important that
22 I ponder what you had put to me to try and see whether I
23 could elicit from what I can only describe as a diatribe,
24 some argument which had some logical merit in response to
25 Ms Sofroniou's submissions. Now, do not be concerned
26 about the work load on me as a judge or about my capacity
27 to understand viva voce argument. These courts run on
28 viva voce argument and most of us have a lot of
29 experience in that. Now, unless you're going to proceed
30 to argue something relevant, I'll ask you to sit down.
31MR JOHNSON: I did wish to finish that point and to clarify the

2Cressy
1 points I made in my description of these proceedings in
2 analogy to the (indistinct) proceedings. I'm not sure
3 if Your Honour wants to hear that or whether I should
4 sit down?
5HIS HONOUR: If you have any logical, meritorious argument to
6 make in response to Ms Sofroniou's submission that you
7 should pay the costs of her clients on a solicitor client
8 basis then you are at liberty to advance that argument.
9 But so far the last five minutes, you have not done so.
10 You've just deliberately sought to waste yet more time of
11 this court.
12MR JOHNSON: Your Honour, this could be a little bit
13 inflammatory but does it really go – it does go to the
14 application for costs on the extended basis. But that
15 application for costs on an extended basis piggy-backs up
16 Your Honour's ruling, surprising ruling, forgive me Your
17 Honour, that Mr Hanlon and Harwood Andrews have no case
18 to answer. I did say earlier this morning, here I go,
19 Your Honour, that I came within this close in discovering
20 in the mess that Ms Cressy left in my garage,
21 communications from Harwood Andrews and Mr Hanlon to
22 Ms Cressy of the calibre of the smoking gun memo between
23 Dr Ian Callinan and the Flower & Hart lawyers and the
24 (indistinct) complainant in those proceedings.
25 Now, this is where I'd be interested in Your
26 Honour's thoughts but I did say in that discussion where
27 I first welcomed Ms Sofroniou and Ms Newcombe to be
28 involved in these proceedings. I'm glad that a Bourke
29 Street law firm is representing Harwood Andrews and that
30 was a discussion outside of Court Room 10 on 12 March
31 2008. Do I need to repeat the words of that

2Cressy
1 conversation?
2HIS HONOUR: Mr Johnson, this is entirely irrelevant. I will
3 require you to sit down in a moment.
4MR JOHNSON: I believe – I believe it is highly relevant,
5 because I think the reason that I haven't found that
6 smoking gun memo is because it doesn't exist because the
7 authors, the Dr Callinan and the Flower & Hart
8 correspondees in this case, as I said, I'll need to
9 (indistinct) March 2007 (indistinct) capacity to
10 understand the issue or to write that memo. And I say;
11 that having regard to the other documents, that I have
12 recovered in terms of communications between Mr Hanlon of
13 Harwood Andrews and Ms Cressy. It puts me firmly in the
14 belief that that's why I have come this close to finding
15 that smoking gun memo. The evidence required to more
16 than establish misfeasance, misconduct of fraud - - -
17HIS HONOUR: You have had every opportunity for this court –
18 any relevant evidence in this case, you protracted the
19 hearing last year deliberately. At the end of the day
20 when you were on the cusp of closing your case, you
21 veered away from doing so, wasted a whole day on the 12
22 December and ultimately persuaded me to do that which I
23 probably should not have done and that is adjourn the
24 case to this year. You had two months to get further
25 information. You have used those two months by issuing a
26 series of subpoenas which were an abuse of the process of
27 this court, abusing your position, not only as a
28 litigant, but as a barrister and solicitor of this court.
29 This case has now gone for three and a half days this
30 week. I should say that probably in it, we've had about
31 20 minutes of evidence and about, with great respect to

2Cressy
1 Ms Sofroniou, she put forth 30 minutes of useful argument
2 today and 30 minutes last night, the rest have been
3 wasted by you. You've had every opportunity to put
4 further evidence forward. Unless you wish to advance a
5 sensible argument in resistance to the costs application,
6 I require you and indeed will now, give you a legal
7 direction to sit down. This is your last opportunity.
8MR JOHNSON: I thank Your Honour for allowing me to address you
9 on that second point and I am comfortable and ready to
10 sit down.
11HIS HONOUR: Thank you very much, Mr Johnson.
12(RULING FOLLOWS)
13

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1.LL:KD 11/02/2009 FTR:16P 238 RULING

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1.LL:KD 11/02/2009 FTR:16P 239 RULING

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1.LL:KD 11/02/2009 FTR:16P 240 RULING

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1.LL:KD 11/02/2009 FTR:16P 241 RULING

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1.LL:KD 11/02/2009 FTR:16P 242 RULING

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1.LL:KD 11/02/2009 FTR:16P 243 RULING

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1.LL:KD 11/02/2009 FTR:16P 244 RULING

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1.LL:KD 11/02/2009 FTR:16P 246 RULING

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1.LL:KD 11/02/2009 FTR:16P 247 RULING

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1.LL:KD 11/02/2009 FTR:16P 248 RULING

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1.LL:KD 11/02/2009 FTR:16P 249 RULING

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1.LL:KD 11/02/2009 FTR:16P 250 RULING

2Cressy
1MS SOFRONIOU: Please the court.
2HIS HONOUR: Ms Sofroniou.
3MS SOFRONIOU: Your Honour, I understand the normal procedure
4 here would be that in due course that would be in the
5 form of a written copy of Your Honour's judgment.
6HIS HONOUR: Yes.
7MS SOFRONIOU: Just if I may say so, there are important
8 reminders about the independence of practitioners there
9 that one hopes might get some wider publication, as it
10 were, rather than just for the purpose of these
11 proceedings, so it's good that it will be issued as a
12 formal judgment.
13HIS HONOUR: It will be, yes, it will be, as we in fact are
14 required to do, published as a normal judgment on I think
15 AustLII.
16MS SOFRONIOU: Thank you, Your Honour.
17HIS HONOUR: Thanks, Ms Sofroniou.
18MS SOFRONIOU: My final application is that I be excused.
19HIS HONOUR: Well, before you do that we'll just formulate some
20 formal orders, and then you will definitely be excused.
21 Well, subject to any issues of draughtsmanship, which I
22 do not claim to be an expert, I will make the following
23 two orders. Firstly I order that the amended
24 counterclaim by the defendant Harold James Johnson,
25 directed to the 2nd defendant by counterclaim David
26 Hanlon and the 3rd defendant by counterclaim Harwood
27 Andrews Proprietary Limited be dismissed. Secondly, I
28 order that said defendant, Harold James Johnson, pay the
29 costs including any reserve costs for the 2nd defendant
30 by counterclaim David Hanlon and the 3rd defendant by
31 counterclaim Harwood Andrews Proprietary Limited on a
1.LL:KD 11/02/2009 FTR:16P 251 DISCUSSION

2Cressy
1 solicitor/client basis.
2MS SOFRONIOU: Please the court.
3HIS HONOUR: That's sufficient?
4MS SOFRONIOU: Yes, thank you.
5HIS HONOUR: Thank you.
6MR JOHNSON: May I speak, Your Honour?
7HIS HONOUR: Yes, briefly.
8MR JOHNSON: Thank you, Your Honour, I don't know the process
9 from here, Your Honour, but I understand that there may
10 be some procedure for stays on time to pay that sort of
11 thing pending my appeal of those orders, Your Honour.
12HIS HONOUR: Well, I think the costs will have to be taxed in
13 any event, and I would think that the period of taxation
14 would be longer than any stay that I would allow. If you
15 wish to appeal those orders you'll need to apply for a
16 stay from the Court of Appeal. There's no need for me to
17 give any stay at this point.
19HIS HONOUR: Yes, Ms Sofroniou, I thank you very much for your
20 assistance in this case, I commend you on the very
21 professional way in which you have conducted yourself and
22 indeed those instructing you have conducted themselves
23 throughout this very difficult case, and having said
24 that, I excuse you from this trial.
26HIS HONOUR: Thank you. Now, we'll now adjourn for lunch. We
27 have (indistinct) the lunch hour. Do the parties need a
28 little bit more time than 2.15 or can we be back at 2.15?
29MR DEVRIES: I can come back, I'm in Your Honour's hands.
30HIS HONOUR: Mr Johnson, you'll be going first after lunch, do
31 you need a little bit more time than 2.15?

2Cressy
1MR JOHNSON: 2.15 is super, Your Honour.
2HIS HONOUR: All right, well we will resume - in fact, to allow
3 the court staff, they'll need a bit of breather too,
4 we'll make it 2.20, and will resume then, thank you very
5 much.
6LUNCHEON ADJOURNMENT:
7
8

2Cressy

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1MR DEVRIES: The matter is still proceeding Your Honour.

2HIS HONOUR: Thank you Mr Devries.

1.LL:MH 11/02/09 FTR:1A 192 DISCUSSION

1.LL:MH 11/02/09 FTR:1A 193 JUDGMENT

2 costs application flowing from that.

3HIS HONOUR: Yes.

4MS SOFRONIOU: Is this a convenient time to make it?

5HIS HONOUR: It probably is, it seems to me the alternative is

6 for you to await the completion and adjudication of the

7 proceeding. I see no reason to do that and it would seem

8 to me that your side has been put to pretty great

9 inconvenience in this case and ought to have some

11MS SOFRONIOU: Thank you Your Honour, if I may do that then.

12HIS HONOUR: Yes.

13MS SOFRONIOU: The application is actually not costs on the

14 usual basis but costs on a basis that best indemnifies

15 the 2nd and 3rd defendants to the counterclaim, so an

16 indemnity costs order. There is a narrower and a broader

17 basis for making that so I will try not to make it a long

18 submission Your Honour, that because it's not just a

19 usual order for costs, it requires submissions in my

21HIS HONOUR: Yes I follow.

22MS SOFRONIOU: The narrower order if I can call it that basis

23 for the order is a Calderbank letter which I would seek

24 to hand up to Your Honour. It was addressed to Sutton

25 lawyers on 18 August 2008, I have a copy for my friends.

26HIS HONOUR: Yes thank you.

27MS SOFRONIOU: I will give Your Honour a chance to look at it

28 briefly but it pretty much is an offer to bear own costs

29 on the ground that the counterclaim is discontinued. In

30 my submission that is a real compromise because in a case

31 of this length Your Honour would easily apprehend that

1.LL:MH 11/02/09 FTR:1A 194 DISCUSSION

2 letter predated the bulk even of the preparation of the

3 hearing. So all of that could have been compromised.

4 The date for acceptance of the offer was up until

5 1 September and no acceptance of the offer was received.

6 Your Honour has of course considered these kinds of

7 applications frequently, I can cite a decision of Your

8 Honours where Your Honour had in the Wallace case.

9HIS HONOUR: That's right.

10MS SOFRONIOU: Which is I think the case Your Honour had

11 averted to where even a successful party by its conduct

12 of proceedings was subject to Your Honour's discretion

13 that it didn't obtain all of the costs.

14HIS HONOUR: That's right, my recollection is in fact I reduced

15 the costs awarded to the successful party.

16MS SOFRONIOU: By a percentage.

17HIS HONOUR: Because of the time wasting by that party in the

19MS SOFRONIOU: That's right. Your Honour, I can hand up a copy

20 of that judgment if Your Honour would like to see it.

22 have a copy for Mr Johnson.

24 I'm happy to - I'm not applying it of course, seeking to

25 apply it, because that was where a party was successful.

26HIS HONOUR: No, I understand that, it really just reminds me

27 of some of the principles, but also I think there were

28 Calderbanks weren't there.

29MS SOFRONIOU: That's why I'm referring to it Your Honour, and

30 I can put it in a nutshell that Your Honour was just

31 considering on the facts of that case, where there were

1.LL:MH 11/02/09 FTR:1A 195 DISCUSSION

2 facts of each of those which is specific to that case and

3 not applicable here, and in the case of each Your Honour