Brothel Gate Day 9 PM

1 (Kaye J)
2UPON RESUMING AT 2.18 P.M.:
3HIS HONOUR: Now, it's been received at registry, there's some
4 documents subpoenaed by the plaintiff's solicitors from
5 the Trust Company Fiduciary Services Limited.
6MR DEVRIES: That's one of the mortgagees, Your Honour.
7HIS HONOUR: Do you seek access to those documents?
8MR DEVRIES: I think I better, but it's probably too late, now,
9 Your Honour.
10HIS HONOUR: Well, I'll certainly make them available to you
11 and to the other parties, subject to - - -
12MS SOFRONIOU: Thank you, Your Honour.
13HIS HONOUR: Each of you giving the appropriate undertaking.
14 Do you wish to look at them too, Mr Johnson?
15MR JOHNSON: I would, Your Honour, I'd not seen any of the
16 materials in response.
17HIS HONOUR: You would need to give to the court the
18 undertaking required - - -
19MR JOHNSON: Most definitely, Your Honour.
20HIS HONOUR: You better wait for it.
21MR JOHNSON: I'm sorry.
22HIS HONOUR: That - it's a formal undertaking that you will
23 return the documents to the court.
24MR JOHNSON: Of course, Your Honour.
25HIS HONOUR: Yes, thank you, and speaking of which, I'll
26 release them first to Mr Devries. I understand you'd had
27 the Commonwealth Bank documents for two days.
28MR JOHNSON: They've been sitting on my desk, but I wasn't
29 given an opportunity to see them at a quarter to ten on
30 the morning allotted, it was more like four minutes to
31 ten.
1.LL:SK 11/12/08 FTR:29 245 DISCUSSION

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1HIS HONOUR: Well, when are you going to return them to the
2 court?
3MR JOHNSON: I asked your tipstaff yesterday - - -
4HIS HONOUR: I didn't ask what you'd asked - when are you going
5 to return them for the court?
6MR JOHNSON: I've only had a minute to look at them, Your
7 Honour.
8HIS HONOUR: That didn't really answer my question,
9 perhaps - - -
10MR JOHNSON: I will return them now, Your Honour.
11HIS HONOUR: Thank you very much.
12MR JOHNSON: Thank you, Your Honour. It's an oversight they
13 haven't been returned previously.
14HIS HONOUR: Yes, unfortunately. Now, have you issued your
15 subpoena?
16MR JOHNSON: Your Honour, the subpoena has been issued, and it
17 is awaiting collection of the process server.
18HIS HONOUR: Good.
19MR JOHNSON: Hopefully we'll serve him tonight or in the
20 morning in time for 9.30 attendance. I've given
21 instructions that - - -
22HIS HONOUR: Morning will be too late.
23MR JOHNSON: If it's 6.30 in the morning, it might be - - -
24HIS HONOUR: I would think it'd be far too late, it would have
25 to be served tonight.
26MR JOHNSON: The instructions are - - -
27HIS HONOUR: That was on the basis on which you put to me it
28 would be served, and on the basis on which (indistinct)
29 times.
30MR JOHNSON: I'll extend - I'll clarify those instructions with
31 the process server - - -

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1HIS HONOUR: I think you'd better.
2MR JOHNSON: I've also left instructions that Mr Cockram is to
3 be informed that I have taken the liberty of saying - to
4 be informed that he will be arrested if he doesn't turn
5 up. He has previously been arrested in respect of the
6 matters that I wish to question - - -
7HIS HONOUR: You can leave whatever instructions you like.
8MR JOHNSON: Thank you, Your Honour.
9HIS HONOUR: That actually is not legally correct. Now, where
10 do you go from here? So we're still waiting for
11 Mr Cockram, hopefully he'll be called tomorrow morning,
12 Ms Sofroniou will not be able to do her no case
13 submission until - - -
14MS SOFRONIOU: That's not a problem, Your Honour.
15HIS HONOUR: - - - the case is closed, so, Mr Devries, are you
16 in a position to do any part of your closing today, or?
17MR DEVRIES: Unfortunately, I have to say yes, Your Honour.
18HIS HONOUR: I don't force you to do it if it's not convenient,
19 but I just thought we could try to use some of the time.
20MR DEVRIES: I'd be a hypocrite if I didn't try to use the
21 time, Your Honour, so I will.
22HIS HONOUR: Well, see what you can do. Even if you wish to
23 revisit your final address when we get to it.
24MR DEVRIES: Your Honour, what I was proposing to do, given the
25 way we were doing it, was to - and this is more for the
26 benefit of Mr Johnson - - -
27HIS HONOUR: I'm sorry, I did (indistinct) Mr Johnson one other
28 matter, Mr Devries, and I'm sorry, Mr Sofroniou.
29MS SOFRONIOU: Yes.
30HIS HONOUR: Mr Johnson, have you - do you intend to seek leave
31 to amend your counterclaim against the 2nd/3rd defendants

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1 to the counterclaim?
2MR JOHNSON: Thank you, Your Honour. May I just say, and
3 obviously I don't mean this as any criticism whatsoever
4 of Your Honour, and shouldn't be taken that way, but the
5 conditions that you attached to my amending, my defence
6 in counterclaim at such short notice, partway through the
7 trial, I'm not suggesting anything was done wrong seven
8 days ago, I believe it was done right, I just wish that
9 the plaintiff, having been funded by her lawyers, into
10 hundreds of thousands of dollars of litigation against
11 me, I wish that the same conditions might have been
12 raised on them as a requirement, particularly as to
13 security of costs in amending their claim against me.
14HIS HONOUR: Now, what is the answer to the question I put to
15 you?
16MR JOHNSON: The answer is I can't - - -
17HIS HONOUR: Do you seek - - -
18MR JOHNSON: - - - make - - -
19HIS HONOUR: - - - no, just a moment, just give a straight
20 answer to this. Do you seek leave to amend your
21 counterclaim?
22MR JOHNSON: I'm shut out from doing so on several bases, Your
23 Honour.
24HIS HONOUR: Do you seek leave to do it or not?
25MR JOHNSON: In a word - - -
26HIS HONOUR: You are not shut out, do you seek leave to do so
27 or not?
28MR JOHNSON: In a one word answer, no, Your Honour, may I
29 explain further?
30HIS HONOUR: No, you don't need to explain, I just simply ask
31 you a straight question, do you seek leave to amend your

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1 counterclaim, you don't, and I'll now here from
2 Mr Devries, so we don't have any more of this time
3 wasting.
5HIS HONOUR: Thank you.
6MR DEVRIES: What I thought I would do is, for the benefit of
7 Mr Johnson, explain to him how I would have structured my
8 closing, so that he gets some idea for when he comes to
9 it, and then I was going to jump to the law side of it.
10HIS HONOUR: Yes.
11MR DEVRIES: What I would have originally done, Your Honour,
12 was to address Your Honour on the evidence.
13HIS HONOUR: M'mm.
14MR DEVRIES: And I would have started with the reasons why,
15 when there's a conflict in evidence, Your Honour should
16 have preferred the evidence of one witness as against the
17 other, one party's against the other.
18HIS HONOUR: Yes.
19MR DEVRIES: And I would have then proceeded to take Your
20 Honour to the factual findings that I'd be respectfully
21 urging Your Honour to make, and the basis for those
22 findings, and that would have been within the structure
23 of the proceedings before you, and then I would have
24 dealt with the law, then tied the two together. It may
25 have been - it may be argued that it would be better to
26 do the law first and the facts later, but that's the way
27 it's going to happen in any case, Your Honour.
28HIS HONOUR: What I think really would be helpful is, and - at
29 this stage, and I'm sure it would help Mr Johnson, is if
30 you were to outline, really, in broad form how you put
31 your claim as to (a) the domestic relationship, not so

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1 much an address on who to believe, but simply how you put
2 that claim, how you put your claim as to contributions,
3 again, in general form, you can come back to this in a
4 proper final address.
5MR DEVRIES: Yes.
6HIS HONOUR: What assets there are available and it maybe from
7 what I heard you say if this matter goes into February it
8 might be a blessing in disguise, because there may be
9 better clarity about it. I don't know but it may be that
10 it's inevitable it'll go into February anyway at this
11 rate. And then the principles you say that apply in
12 relation particularly to the Part 9 claim, and to a
13 lesser and also perhaps the principles that apply to your
14 claim for a constructive trust. Now, does that assist?
15 I'm in your hands but those issues would help.
16MR DEVRIES: I was going to do it more or less that way, Your
17 Honour, but I probably wouldn't have done it as
18 succinctly as that - - -
19HIS HONOUR: They're the sort of matters that seem to me that
20 are going to be very difficult to call on Mr Johnson at
21 the close of evidence to start addressing, without him
22 having some idea as to how you're putting those matters.
23 He's under - - -
24MR DEVRIES: I'm certainly happy to do that, Your Honour. I
25 was going to say, Your Honour, I didn't want to go into
26 the evidence before Mr Johnson closed for the very reason
27 that my learned friend - - -
28HIS HONOUR: No. That's why this in a sense is not a final
29 address but rather you're putting together really how you
30 put your claim, to edify both Mr Johnson and myself as to
31 that effect.

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1MR DEVRIES: If Your Honour pleases. Your Honour, because I'm
2 attempting to edify Mr Johnson as well I might be saying
3 things that I normally wouldn't put - - -
4HIS HONOUR: No, I follow.
5MR DEVRIES: A bit more basic than I normally put to Your
6 Honour and I apologise if I'm - - -
7HIS HONOUR: I will probably benefit from it anyway.
8MR DEVRIES: With the greatest respect I take issue with that,
9 Your Honour, but we'll see how we go. Your Honour, the
10 starting point quite obviously is the legislation. It's
11 the legislation that was extant at the time that the
12 parties separated. I appreciate that there is a new Act
13 which I think is called the Relationships Act.
14HIS HONOUR: Yes.
15MR DEVRIES: It'd be my submission that to all intents and
16 purposes that doesn't apply to this proceeding because
17 firstly the proceeding was initiated before the Act – the
18 appropriate part of the Act took force. Yes, took force
19 and took effect and secondly the separation preceded the
20 new provisions coming into operation.
21HIS HONOUR: Have you had a look at the transition provisions
22 of the new Act?
23MR DEVRIES: I have, Your Honour, and I've been debating that
24 with my instructors because we – or one of my instructors
25 would take a different view as to how those transitional
26 provisions work.
27HIS HONOUR: I'd better have a look at it. It's the
28 Relationships Act of this year isn't it?
29MR DEVRIES: I believe it is, Your Honour. Because it's such a
30 large Act I printed off the Relationships Bill, and what
31 I have may not be exactly the same as the Act so I'd

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1 rather no quote from the Bill. My understanding is that
2 the old law as I think the Act referred to it, the extant
3 law as at the time of the separation and or the
4 initiation of proceedings is the appropriate law and
5 that's Part 9 of the Property Law Act.
6HIS HONOUR: It's pretty rare for Acts like that to have
7 retrospective application, so I think we can act on that
8 basis this afternoon.
9MR DEVRIES: If the new Act did have operation in respect to
10 this matter then the scope of Your Honour's enquiry would
11 be far wider, because we would then be looking at what is
12 called in the Family Law area spousal maintenance factors
13 or s.75(2) factors.
14HIS HONOUR: These cases are actually going to the Family Court
15 are they not?
16MR DEVRIES: Probably to the Federal Magistrates' Court. I
17 think the Family Court has dodged that - - -
18HIS HONOUR: I know but it doesn't matter. I don't care where
19 they go, Mr Devries, as long as they go.
20MR DEVRIES: I have heard and it may not be correct that'll
21 happen towards the end of March next year.
22HIS HONOUR: I'll live with the delay.
23MR DEVRIES: I know there's another court not that far from
24 Your Honour that is rubbing their hands with glee at the
25 prospect of - - -
26HIS HONOUR: I've heard the celebrations through the broken
27 window.
28MR DEVRIES: Your Honour, Part 9 enables a party to a domestic
29 relationship to make application to this court or to the
30 County Court as the case may be, for a division of the
31 property of the parties or either of them provided that

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1 certain preconditions are met. I'll deal with the
2 preconditions first. The first one effectively is that
3 as at time of the making of the application one or both
4 parties is resident in Victoria. There's no issue taken
5 with that. The second condition to the making of an
6 order – sorry, what I've just mentioned is s.280(a) of
7 the Act.
8 Section 280(b) says that the parties – sorry, that
9 both partners must've lived in Victoria – must've lived
10 together in Victoria for at least a third of the period
11 of their relationship. Whether the relationship is of
12 the length that the defendant asserts or is of the length
13 that my client asserts, they were both resident in
14 Victoria for the whole of that relationships, save I
15 think the defendant asserts that my client might've been
16 overseas for a very, very short period of time. If they
17 weren't resident in Victoria for at least a third of the
18 period of the relationship, there are saving provisions
19 but in my submission that doesn't require consideration
20 by Your Honour.
21 The next condition for the making of an order is
22 covered by s.281 of the Act, and that is that either the
23 parties live together in a domestic relationship for a
24 period of two years or, the court is satisfied that there
25 is a child of the domestic partners, or there's another
26 saving provision, and because the parties have a child,
27 Illyana Cressy, if there wasn't a domestic relationship
28 of at least two years that saves the application. The
29 third condition is that the application must be brought
30 to court within two years after the day on which the
31 relationship ended. If Your Honour accepts the

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1 relationship as being of the period that is asserted by
2 the plaintiff my client is well within that time limit,
3 which is s.282(1). If Your Honour accepts that it was
4 for the minimum period that Miss that Mr Johnson had
5 asserted, then my client would need to obtain leave of
6 the court to apply for an order. Now, Mr Johnson hasn't,
7 in his pleadings, taken issue with that and in any case
8 the more recent authorities – and I haven't brought those
9 with me, Your Honour, because I haven't addressed that
10 issue in the context of this proceeding.
11 But the more recent decisions now say that that
12 issue, the leave issue, should be dealt with at the same
13 time as the principal issue because there are a lot of
14 overlapping circumstances. And there is a recent
15 decision – relatively recent decision of His Honour
16 Justice Cavanough on that – I can't remember the name.
17HIS HONOUR: Well, it would have to be so in a case like this
18 because the issue of, firstly, the existence of a
19 domestic relationship and if so the duration of it has
20 been raised by Mr Johnson, so that the question whether
21 you need leave or not will depend on the determination of
22 that issue.
23MR DEVRIES: Yes.
24HIS HONOUR: Secondly, I would have thought that relevant
25 discretionary factors would be the sort of matters that
26 would arise in the course of the trial.
27MR DEVRIES: That's correct, with respect, Your Honour. And
28 also what - - -
29HIS HONOUR: One matter you would point to is whatever – if
30 there was a relationship and if I were to take the view
31 Mr Johnson argues for, that is that it was only a

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1 relationship of a shorter duration, nonetheless there was
2 some sort of connection, if I could use a neutral term.
3MR DEVRIES: Yes.
4HIS HONOUR: Because I think both sides have talked about a
5 tipping point in Easter 2007.
6MR DEVRIES: Yes, Your Honour. And if leave had to be sought
7 the court has to be satisfied that the balance of the
8 hardship is in favour of the plaintiff and a very large
9 number of decisions of single members of this honourable
10 court have said that that hurdle is an extremely low
11 hurdle for potential plaintiffs to overcome.
12HIS HONOUR: You would rely, would you not, on the fact that
13 the relationship was amicable until April 2007 on both
14 sides of the evidence?
15MR DEVRIES: Yes.
16HIS HONOUR: There seemed to be no occasion to bring this type
17 of application till then.
18MR DEVRIES: No, Your Honour.
19HIS HONOUR: Your client was living in – she said she was
20 living at Altona by then.
21MR DEVRIES: Yes, Your Honour. Yes.
22HIS HONOUR: She had lived at Dorrington Avenue for three or
23 four years, so that she was living in secure
24 circumstances which the defendant says that he was
25 supporting her. So that one would think those
26 circumstances would be relevant, would they not, to an
27 application for leave if it's necessary?
28MR DEVRIES: They would, Your Honour, and probably the most
29 important one – the most important issue would be whether
30 the plaintiff would be locked out of a right that has
31 some value. And the second issue probably is whether she

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1 has an arguable case. If she hasn't got an arguable case
2 there would be no point to giving leave.
3HIS HONOUR: But if I'm to decide the issue of leave, that
4 would be decided as part of my judgment, would it not?
5MR DEVRIES: Yes.
6HIS HONOUR: She's either got a case and she either wins or
7 loses at that point. And you say, well, if she wins she
8 ought to get leave because otherwise you'd be shutting
9 her out from a valuable right.
10MR DEVRIES: Yes, Your Honour.
11HIS HONOUR: I suppose, conversely, Mr Johnson, you say no harm
12 is done by denying her leave because she was going to
13 lose anyway? In other words, that leave issue would seem
14 to me to be following the event.
15MR DEVRIES: Yes, Your Honour. And quite clearly Mr Johnson's
16 case is that my client never, ever had a – even the very
17 sniff of a case right from Day 1. And he's made that
18 abundantly clear to my client's various legal
19 practitioners from time to time. Your Honour, a domestic
20 relationship is defined in the Act at s.275(1) as, "A
21 relationship between two people who, although not married
22 to each other, are living or have lived together as a
23 couple on a genuine domestic basis irrespective of
24 gender." And then the Act helpfully, perhaps, lists the
25 criteria that the court may take into account in
26 determining whether a domestic relationship exists, or
27 has existed.
28 This is at sub-s.(2) and what sub-s.(2) says Your
29 Honour is, and I quote, "For the purposes of the
30 definition of domestic relationship in sub-s.(1) in
31 determining whether a domestic relationship exists or has

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1 existed all of the circumstances of the relationship are
2 to be taken into account including any one or more of the
3 following matters as may be relevant in a particular
4 case". There are eight factors listed there.
5HIS HONOUR: Perhaps I could ask to shorten this because I've
6 got the Act in front of me. Mr Johnson, do you have a
7 copy of the properties order?
8MR JOHNSON: Your Honour, may I be allowed to turn my notebook?
9 I might make a little noise lifting up, then I would have
10 the legislation in front of me.
11HIS HONOUR: But you don't have a hard copy?
12MR JOHNSON: No, only on notes.
13HIS HONOUR: I take it you're familiar with these provisions?
14MR JOHNSON: Look, it would be a while since I've looked at
15 them Your Honour. I don't think they're relevant to well
16 the plaintiff's case to be honest. I don't think the
17 plaintiff has a case Your Honour.
18HIS HONOUR: Mr Devries - - -
19MR JOHNSON: (Indistinct).
20HIS HONOUR: - - -look what the defendant has said - thank you
21 Mr Johnson for your assistance.
22MR JOHNSON: May I be allowed to (indistinct)?
23HIS HONOUR: No.
24MR JOHNSON: Thank you Your Honour.
25HIS HONOUR: What I - Mr Johnson obviously has access to the
26 provisions and he's a highly literate man. He can do -
27 just simply outline to him the eight factors and tell him
28 where to go, what to look for. It's up to you, but.
29MR DEVRIES: Certainly Your Honour. I'll do.
30HIS HONOUR: I don't need you to read them to him.
31MR DEVRIES: Yes. Your Honour when I've finished my

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1 submissions I'm quite happy to give Mr Johnson a copy of
2 mine. It has been marked, not for this - - -
3HIS HONOUR: It's a matter for you.
4MR DEVRIES: Yes. The factors I'm relying on Your Honour are
5 the duration of the relationship - whatever the
6 relationship was. There was certainly a relationship up
7 until at least a week after Easter 2007. That's not
8 within dispute. It's the nature of the relationship up
9 until then, and there's no dispute that a relationship of
10 some sort commenced between the parties towards the end
11 of 1998. The questions are the nature of the
12 relationship in that period of time and whether there
13 were breaks in that.
14 The factor that is in dispute between the parties is
15 the nature and the extent of them living together, and I
16 will give Mr Johnson fair warning that I'll be submitting
17 to Your Honour that he, with respect, Mr Johnson has an
18 enormous difficulty in overcoming the words that he has
19 used in an affidavit that he was the deponent of and
20 that's the affidavit that has been tendered and it will
21 take me a moment to identify the exhibit number, but we
22 know which affidavit.
23HIS HONOUR: Yes and he told me today it contained the truth.
24MR DEVRIES: Yes he did - he reiterated. He said that before
25 as well Your Honour.
26HIS HONOUR: M'mm.
27MR DEVRIES: And on that certainly Mr Johnson has been
28 consistent, although, by way of digression Your Honour,
29 Mr Johnson's definition of truth might be a bit different
30 to what mine would be Your Honour, but I'll be urging him
31 to take (indistinct).

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1HIS HONOUR: They're issues of credibility you're going to come
2 to of course.
3MR DEVRIES: Absolutely Your Honour. No dispute that there was
4 a sexual relationship. There may be a dispute as to
5 whether it subsisted for the whole of the relationship
6 but there's been no suggestion from Mr Johnson that it
7 didn't. Degree of financial dependent to interdependence
8 and any arrangements for the financial support between
9 the parties. If Your Honour accepts Mr Johnson's
10 evidence, and I'm not submitting Your Honour ought to in
11 this respect in its entirety, he would have you believe
12 that he has supported my client and members of her
13 family, including their child, for the whole of the
14 period that we say the domestic relation subsisted for.
15 Ownership, use and acquisition of property - use
16 certainly comes into this. Arguments about ownership and
17 acquisition, my client's evidence was that there was a
18 commitment to a shared life and my submission will be,
19 when I get to the evidence, that some of Mr Johnson's
20 correspondences points to the same end. Care and support
21 of the children in this case. One for - I don't want to
22 distinguish between the children, but there's one
23 principal child and two other children.
24 There's one child clearly of the parties for the
25 purposes of these proceedings, and two other children of
26 my client and Mr Johnson for some reason wants to bring
27 into the equation his other three children. Then there's
28 the reputation on public aspects of the relationship, and
29 that depends, with respect Your Honour, in large part on
30 whether Your Honour accepts the evidence of Ms Gail
31 Cressy Your Honour on that or not.

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1HIS HONOUR: That sorry?
2MR DEVRIES: The reputation of public aspects of the
3 relationship. Where they held themselves out as being -
4 I'd be relying principally on the evidence of Ms Gail
5 Cressy on that. My client's mother. As well as my
6 client's own evidence of course.
7HIS HONOUR: M'mm.
8MR DEVRIES: If Your Honour finds that there is or has been a
9 domestic relationship, and that the other jurisdiction or
10 pre-requisite issues are met, then Your Honour, the next
11 step to Your Honour is the question of the contributions
12 of the parties. I will get to Giller v. Procopets in a
13 moment, but are there in my submission five categories of
14 contributions. There's direct financial and indirect
15 financial. There's direct non financial and in direct
16 non financial.
17 Notwithstanding the fact Your Honour, that various
18 decisions, including Giller v. Procopets, attempt to role
19 them up into two sorts of contributions. Financial on
20 the one hand, non financial on the other.
21 Then there is the fifth category which is the
22 contributions of one or both parties in the capacity of
23 homemaker and parent. Until 9.30 yesterday, that
24 contribution was taken to be a contribution up to the end
25 of the relationship.
26 It's probably a grey area as to when that
27 contribution ends and whether the court can look at the
28 contributions that may occur in the future or not.
29 That's where one gets into the realms of what the
30 Family Court does, and the Federal Magistrates' Court,
31 exercising Family Law jurisdiction. If only the Full

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1 Court had waited another month or so Your Honour.
2HIS HONOUR: Yes.
3MR DEVRIES: If I could give examples of each of the first four
4 contributions. A financial contribution - sorry, I'll
5 backtrack one. The high point of the analysis of
6 financial contributions is probably the decision of
7 His Honour, Justice Morris as he then was in
8 Findlay v. Besley. That is probably at the opposite end
9 of the range in terms of information that the court has
10 in this matter.
11HIS HONOUR: Yes.
12MR DEVRIES: I make no bones about that. I can't make any
13 bones about that. His Honour seemed to have had the
14 advantage of - right down to the last dollar, every
15 dollar that each party brought in directly and
16 indirectly, by way of financial contributions and the
17 expenditure of that.
18 It was an extraordinary decision, it was probably
19 more an actual exercise in vision, with respect
20 His Honour and His Honour's part. His Honour has been
21 heard to say that it should be looked at in the
22 particular circumstances of that case and the information
23 that His Honour had.
24 There are a number of other decisions that I will
25 take Your Honour to, where the amount of information is
26 less detailed then than and where has taken an approach
27 which I'll be urging upon you and that is, I suppose in
28 words from the decision, do the best with information
29 that Your Honour has. That's an unfair burden that the
30 bench more often than not is faced with and shouldn't be
31 in the superior court, such as Your Honour's court.

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1HIS HONOUR: It is a difficulty in this case. We do do it in
2 different areas, where we don't decline to award damages
3 because there's an uncertainty attaching to them and
4 there's a difficulty and a lack of precision, both in
5 contract and in tort. But, there still has to - at the
6 bottom line, got to be some identification of the
7 contribution, particularly the financial ones, so I can
8 at least put some value on them.
9 Then there has to be some identification of just
10 what is the pool of assets now, because any - if I did
11 make an award, any order might be grossly unfair to one
12 or other party, depending on how big or small the net
13 assets are.
14 It's not as difficult - I mean, the issue as to
15 contributions of homemaker and parent.
16MR DEVRIES: Yes.
17HIS HONOUR: That's a matter for me to make findings on fact
18 and there are disputes of fact in relation to that.
19 Valuing that is difficult, but we are use to ultimately
20 working that type of equation out in various areas.
21MR DEVRIES: Some of the decisions, including
22 Giller v. Procopets, with respect permit the court to
23 take a global approach in Giller v. Procopets, that's Her
24 Honour who wrote the principal decision, did say that the
25 court should be minded that there are two approaches, the
26 global approach - - -
27HIS HONOUR: Or asset by asset. Much would depend on each
28 individual case. And you say in this case it should be a
29 more global approach?
30MR DEVRIES: It should be and it should be the contribution,
31 not just - - -

2Cressy
1HIS HONOUR: Because - - -
2MR DEVRIES: Sorry.
3HIS HONOUR: One of the contributions your client is relying
4 on, if I accept it, is her contribution as a homemaker
5 and mother.
6MR DEVRIES: Yes.
7HIS HONOUR: That really simply applies across the properties.
8MR DEVRIES: It's to the - Giller v. Procopets does refer
9 Your Honour to the contributions to the relationship. I
10 don't it uses quite those words.
11HIS HONOUR: Yes.
12MR DEVRIES: Something very similar to that, I was going to
13 come to the precise words after I'd left that. But, the
14 contributions as homemaker and parent or in the capacity
15 of homemaker and parent, is a separate and distinct
16 contribution to that being the direct and indirect
17 financial and non financial contributions.
18 The courts have recognised that that's not an
19 inconsequential factor. If Your Honour had the luxury of
20 sitting in the Family Law jurisdiction, the attendant who
21 appears to be to say effectively if one part - in that
22 case the spouse, if one party does the best they can in
23 the circumstances to play their role in the family
24 situation, whether it's homemaker or breadwinner or a
25 combination of both, and the other party does the very
26 they can, then those contributions should be seen to
27 equal each other.
28 Notwithstanding the fact that one party may have
29 brought in ten times, 20 times what the other party
30 brought in by way of earnings, or financial amounts.
31 Unfortunately, even with yesterday's decision, I

2Cressy
1 don't think that Your Honour's got that out. Unless Your
2 Honour wishes to follow the Family Court authorities, and
3 I can take Your Honour to - - -
4HIS HONOUR: I've got to apply s.285.
5MR DEVRIES: Now, if I can - I was going to - - -
6HIS HONOUR: - - - the non-financial contributions, I take it,
7 are matters such as improvements to the assets, and to
8 the - - -
9MR DEVRIES: There are a number of examples - - -
10HIS HONOUR: Work done, for example, the (indistinct) the
11 accountants who work for busy barrister of a husband, and
12 things like that.
13MR DEVRIES: There are a number of examples of non-financial
14 contributions. One is the direct - so it's a non-
15 financial contribution - you'll have to ignore my learned
16 friend, Your Honour. He's got an idiosyncratic view of
17 these situations, Your Honour. One example of direct
18 non-financial contribution would be the party who paints
19 the house.
20HIS HONOUR: Yes.
21MR DEVRIES: Does the plumbing, does the gardening. An
22 indirect non financial contribution would be if, for
23 argument's sake, one of the parties was involved in the
24 building industry, and they got somebody along, or
25 somebody got a relative along, to do some things as a
26 favour for them, and it will be argued by me that some of
27 the things that my client's mother did could be
28 characterised by Your Honour, with respect, as an
29 indirect, non financial contribution.
30HIS HONOUR: That may depend on whether she was paid or not.

2Cressy
1HIS HONOUR: But I hear what you say, anyway, you're really
2 just simply outlining how it's going to be put, so.
3MR DEVRIES: Yes, I'm giving examples at this stage - - -
4HIS HONOUR: No, well, that assists me, and I would think,
5 instead of helping Mr Johnson to know shape of the case,
6 that you'll be putting in your final address, which is
7 really what I was asking you to do today.
8MR DEVRIES: Yes, Your Honour. There's another form of non-
9 financial contribution, which would be of - a party have
10 brought in a fully furnished home that they owned
11 outright prior to the relationship, and the parties used
12 that for the purposes of the relationship, that would
13 seem to be a non-financial direct - probably direct
14 contribution to the relationship, and the - in the
15 context of this case, in this type of case, Your Honour,
16 I'd be submitting that the financial contributions are
17 the incomes that the parties brought in, assuming that
18 they were used for the relationship, and if there were
19 any windfalls, such as inheritances or Tattslotto wins or
20 anything like that, and there's been no evidence about
21 that at all, and the non-financial would be the work that
22 my client has given evidence that she did, if Your Honour
23 accepts that evidence, with respect, on the properties,
24 in the defendant's business, and if Your Honour accepts
25 that she did that for remuneration, as the defendant
26 would have, but she wasn't paid that, and it was ploughed
27 back in, that would be either an indirect contribution or
28 perhaps even a financial contribution, because she's
29 ploughed the money back in, and she has also given
30 evidence that that happened with respect to Artemis, the
31 gallery.

2Cressy
1 The contributions as homemaker and parent has two
2 self-evident aspects. One is of homemaker, and that's -
3 and I know I'm going to offend somebody, that's the role
4 that sometimes is described as housewife and sometimes as
5 househusband, that's those sorts of things, as distinct
6 from the parenting tasks, because that's where you get
7 the contribution in capacity of parent, and it will be my
8 case, Your Honour, that - well, it is my case that my
9 client was the sole homemaker, and she was almost but not
10 quite the sole parent to the child of the parties,
11 Illyana, and Skye and Treece, because the Act says
12 contribution made by either of the domestic parties to
13 the welfare of the other domestic party, to the welfare
14 of the family constituted by the partners, and one or
15 more of the following, a child of the partners, which is
16 Illyana, a child accepted by one or both of the parties
17 into their households. Whether the - whether or not the
18 child is a child of either of the partners, and that's
19 where Skye and Treece come in.
20HIS HONOUR: Sorry, what were you reading off from there?
21MR DEVRIES: Sorry, that's 285(1)(b)(ii).
22HIS HONOUR: I'm sorry, Your Honour. Well, I think you're
23 being a bit rough on Mr Johnson, aren't you? If he has
24 (indistinct) role in the life that includes Skye and
25 Treece, that they still regard him as their father, it
26 would be hard to say he didn't do any parenting.
27MR DEVRIES: I was going to say, Your Honour, I was just about
28 to say before Your Honour spoke, that that's - from my
29 client, that's a double edged sword in terms of the
30 evidence that - and the way that she would portray that
31 evidence, and - - -

2Cressy
1HIS HONOUR: Well, you seek to rely on that evidence as part of
2 building up the domestic relationship - - -
3MR DEVRIES: Absolutely, Your Honour.
4HIS HONOUR: - - - do you not, but equally, if I were to find
5 that relationship existed, it would seem to me - or
6 whether or not I did it seemed to me, even from my
7 recollection on your client's evidence, that she accepted
8 that Mr Johnson has been a good father, albeit like a lot
9 of professionals, extremely busy but somehow still
10 managing to bond well with the children.
11MR DEVRIES: It is my case, Your Honour, that inevitably he was
12 sufficiently part of the household to develop such a
13 close relationship with the two boys that from time to
14 time each of them called him dad, or something along
15 those lines, and my client hasn't denied – and in fact
16 accepted the evidence that there were a lot of occasions
17 when the five of them, and occasionally the eight of
18 them, went out on, quote "family" unquote, excursions.
19 And Mr Johnson has signed up that the children and my
20 client to family memberships of a vast array of
21 attractions.
22HIS HONOUR: Yes.
23MR DEVRIES: So the way I will be putting the case is that
24 Mr Johnson did as much as he could as a father and/or
25 parent as his work commitments allowed. But, because of
26 his work commitments, and they were huge – almost as much
27 as most counsel that I know, Your Honour – but they were
28 huge and they prevented him from playing as much of a
29 role as a parent at home may – as my client had. Now,
30 Mr Johnson argues that a little bit of that applies to my
31 client; and so it does, because she has said, "Yes, I

2Cressy
1 wasn't around as much as I should have been, or could
2 have been. I had the children in pre-school and after
3 school care because of my work commitments", so that's a
4 double-edged sword for her as well. There is another
5 factor that the Act requires the court to take into
6 account as one of the many factors, and that is sub-s.(c)
7 which is any written agreement entered into by the
8 domestic parties.
9 There is no evidence in this particular case, and no
10 one is asserting a written agreement, Mr Johnson has
11 referred to a child support agreement, an unwritten child
12 support agreement, and I'll be asking Your Honour to draw
13 certain inferences in respect of the existence of that
14 agreement from the fact that it was never, ever put by
15 him to my client that there was a child support
16 agreement, and it's not referred to in any of the
17 pleadings. And whether it is relevant to Your Honour's
18 consideration or not is a different matter, save for the
19 fact that, I think, Giller v. Procopets does require the
20 court to look at the contributions that a party has made
21 by way of payment of child support, particularly after
22 the cessation of the relationship. But Mr Johnson has
23 kindly conceded that the child support that he has paid
24 since, we say, the relationship ended has been fairly
25 small; it was one payment. Again, not put to my client.
26 Having determined what the parties' respective
27 contributions are, sub-s.(1), and this is the way I'll be
28 submitting that the courts have looked at events, says
29 taking account of those contributions, and if there was
30 an agreement, the agreement, what adjustments should the
31 court make to the property of one or both of them that

2Cressy
1 seems just and equitable? And that equates to a fourth
2 step in the Family Court area and a third step in this
3 court. And if I can identify an interesting and probably
4 relevant juxtaposition, sub-s.(1) talks about, "Adjusting
5 the interests of the domestic parties in the property of
6 one or both of them", and that would appear to be – or
7 that is, "both real and personal property and any estate
8 or interest in real or personal property and money,
9 debts, cause of action for damages and any other thing
10 and action and any right with respect to property." Now,
11 that's the property part of the definition.
12 In making an adjustment to the property, Your
13 Honour, takes into account – sorry, I've lost my page –
14 has to look at the contributions to the acquisition,
15 conservation or improvement of any of the property or the
16 financial resources of one or both of the parties. I'll
17 come back to acquisition, conservation or pertinent, but
18 a financial resource in this particular case would be
19 Mr Johnson's superannuation and Miss Cressy's
20 superannuation.
21 Unlike the family - I know of the court's exercise
22 in family law jurisdiction Your Honour cannot make an
23 order in respect to adjusting interests opposing
24 superannuation that the Family Court and the Federal
25 Magistrates' Court and they can make discretion orders,
26 but Your Honour can't, with respect. That's a very, very
27 complicated exercise.
28HIS HONOUR: Well, I can't say I'm disappointed I can't, but
29 the fact is you take into account the contributions, with
30 a look at the appropriate case. One party's made large
31 contributions to the other party's superannuation and

2Cressy
1 then you take that into account.
2MR DEVRIES: If Your Honour takes the - - -
3HIS HONOUR: You wouldn't adjust it, but you would take that
4 into account in the adjustment that took place.
5MR DEVRIES: That's a right - - -
6HIS HONOUR: In respect of property that is amenable to
7 adjustment.
8MR DEVRIES: Yes. That's what I'll be urging upon Your Honour.
9HIS HONOUR: Yes.
10MR DEVRIES: Acquisition conservation or improvement - I don't
11 think I need to address Your Honour on those three terms.
12 They're pretty self-evident. They have their normal
13 meaning. In this particular case Your Honour, it'll be
14 my submission that there's no evidence that either party
15 had anything of significance at the commencement of the
16 relationship so that everything that was there at the end
17 of the relationship was acquired during the course of the
18 relationship and it's a matter of, at the end of the day,
19 the respective contributions which Your Honour would find
20 has been made to all of that property.
21 I should digress for one moment and raw Your
22 Honour's attention to s.286(1)(a) of the Act, and I don't
23 think Your Honour's going to thank me too much for
24 drawing Your Honour's attention to that section, but
25 basically that permits Your Honour to adjourn a
26 proceeding if the court is of the opinion there's likely
27 to be a significant change in the financial circumstances
28 of one or both of the parties in that the partners in it
29 is reasonable to adjourn the (indistinct) having regard
30 to the time when that change is likely to take place".
31 That may or may not include the crystallisation of

2Cressy
1 the interests of the parties' (indistinct) in the real
2 estate that seems to be in the process of being sold or
3 about to be sold.
4HIS HONOUR: What real estate's about to be sold? Queen
5 Street?
6MR DEVRIES: Queen Street I understand it has been sold and
7 it’s a matter of the settlement of the sale of that
8 property, and I'm not sure where I've put my notes, with
9 respect, to what's happened to other properties, but
10 there are - - -
11HIS HONOUR: Mr Johnson was not aware of what has happened to
12 the two Point Cook properties. There - I think emerged
13 either from him or from your side a suggestion that the
14 mortgagee had moved in or was in the process of moving
15 into those properties.
16MR DEVRIES: Yes. There was - - -
17HIS HONOUR: Which would account for your client leaving them.
18MR DEVRIES: Yes.
19HIS HONOUR: She moved out as I understand it in recent times.
20MR DEVRIES: She did Your Honour, and that was because the
21 mortgagee had given her notice. Mr Johnson has raised
22 with you Your Honour, quite properly, that the court - I
23 think it was His Honour Mr Justice Hansen's orders - had
24 made orders for my client to forthwith sell the property
25 as if she was mortgagee in possession. I had flagged
26 with Your Honour a difficulty with that and Your Honour
27 had stated that that was a matter that should be raised
28 if and when we get to the question, what order should be
29 made - following your orders - your Honour's judgment.
30 Effectively what happened in that situation Your
31 Honour I that the Titles Office didn't recognise the

2Cressy
1 order made by His Honour, and my client couldn't - - -
2HIS HONOUR: Sell?
3MR DEVRIES: Couldn't sell and there are various theories as to
4 whose fault that is - whether it's the court's or the
5 Titles Office, or the practitioners, but there was a lot
6 of debate as to what the appropriate orders were and not
7 surprisingly His Honour's view prevailed. But it didn't
8 prevail over the - - -
9HIS HONOUR: Titles Office. All right. Well that order of
10 Justice Hansen in effect didn't have the affect that was
11 intended, but - I really need to have some precision
12 about this. I mean if that property is being sold then
13 there may be - at the moment, there may be advantage in
14 what is I think going to inevitably happen with this
15 proceeding anyway. It'll get put over to February.
16MR DEVRIES: That would, with respect Your Honour.
17HIS HONOUR: I'm in a hopeless stage in - if I do get to the
18 stage of adjusting interests, knowing what there is. The
19 evidence is - and I can't guess, can't speculate.
20 There's a Hawkhurst property and Mr Johnson's told me the
21 amount of debt over it. I have no idea what that means
22 in terms of equity.
23MR DEVRIES: Yes.
24HIS HONOUR: There's no valuation evidence on that. No
25 valuation evidence on Gibson Street. I think he's told
26 me the amount of debt secured over that. Torquay's the
27 same. Lisa Court's gone, so we don't have to worry about
28 that.
29MR DEVRIES: I was going to address Your Honour on that.
30HIS HONOUR: You'll come to that at some stage, but I keep
31 raising the issue - - -

2Cressy
1MR DEVRIES: M'mm.
2HIS HONOUR: That you are pretty experienced, I've no doubt
3 you've got something to put to me. You'll need to
4 understand, at this stage, I see that as a real problem.
5MR DEVRIES: Yes, Your Honour. If I can deal with an immediate
6 issue first before I touch on that?
7HIS HONOUR: Yes.
8MR DEVRIES: If the matter isn't concluded tomorrow - - -
9HIS HONOUR: Yes.
10MR DEVRIES: - - - and given that Your Honour will be, with
11 respect, reserving Your Honour's judgment, I presume
12 Your Honour's going to reserve his judgment, it can't
13 be - - -
14HIS HONOUR: If it isn't finished I can't actually deliver
15 judgment.
16MR DEVRIES: No.
17HIS HONOUR: The usual process in this court is to give
18 judgment when the case has completed, not during it.
19MR DEVRIES: What I meant to say Your Honour, in my clumsy way
20 is if all of the evidence and all of the addresses were
21 completed by tomorrow night, I had anticipated that
22 Your Honour wouldn't immediately pronounce judgment in
23 the matter. I don't say that with any disrespect - - -
24HIS HONOUR: If the whole case finishes tomorrow night, I would
25 do my best to have and give judgment before New Year's
26 Even.
27MR DEVRIES: So by New Year's Eve?
28HIS HONOUR: I'd get judgment out before I went away on
29 holidays.
31HIS HONOUR: So that - - -

2Cressy
1MR DEVRIES: With respect sir - - -
2HIS HONOUR: If the case finishes - the chances of it finishing
3 tomorrow at this pace are pretty light.
4MR DEVRIES: And that brings to the fore the issue that I wish
5 to raise with Your Honour and would have raised with
6 Your Honour tomorrow, is that if the matter isn't going
7 to be determined in a very short space of time, I'll be
8 asking Your Honour to make orders requiring the proceeds
9 of sale of any of the properties that are to be sold,
10 after payments of costs of sale and mortgagee's costs and
11 so on, to be paid into court and abide with the decision
12 of this court.
13HIS HONOUR: You can ask me to do that but you're running into
14 the same hurdle. I'm only going to make that order if I
15 know what's being sold. I'm not going to make orders in
16 the dark.
17MR DEVRIES: Your Honour - - -
18HIS HONOUR: As I understand it, doing the best we can, it
19 looks as though Queen Street is in the process of being
20 sold.
21MR DEVRIES: Yes.
22HIS HONOUR: If that is right, I could make an appropriate
23 order to that effect.
24MR DEVRIES: In that respect Your Honour, I believe there are
25 orders already in place for that.
26HIS HONOUR: There you are.
27MR DEVRIES: I suppose there's no danger that Mr Johnson will
28 take the money and run because of the caveats. But,
29 there's going to be an argument as to what happens to the
30 proceeds if there's any - - -
31HIS HONOUR: Of what?

2Cressy
1MR DEVRIES: Of sale of any of the properties if their in the
2 process of being sold. I'll have clear instructions by
3 tomorrow morning.
4HIS HONOUR: I'm having a lot of difficulty following what you
5 are asking me to do and on what basis and what properties
6 you're asking me to do it.
7MR DEVRIES: Maybe I'll leave that till tomorrow Your Honour.
8HIS HONOUR: I need some precision about it Mr Devries. I know
9 it's a long, grinding case, for all of us and we're all
10 out on our feet - - -
11MR DEVRIES: I'm just trying to flag the issue Your Honour.
12HIS HONOUR: Well you can flag it, but I'm not going to be
13 unmaking any parametary orders.
14MR DEVRIES: No, Your Honour.
15HIS HONOUR: Table the proper material and Mr Johnson's got to
16 be heard on this.
17MR DEVRIES: Of course, what I'm - - -
18MR JOHNSON: Excuse me, Your Honour.
19HIS HONOUR: Yes.
20MR JOHNSON: I'm offended by the suggestion that without the
21 caveats there'd be a danger of me taking money and
22 running, I find that offensive.
23HIS HONOUR: Yes, well - - -
24MR JOHNSON: I didn't actually explain - - -
25HIS HONOUR: I hear your objection to that, in fact apparently
26 Mr Johnson, what Mr Devries is doing is referring to part
27 of the summons that you've - - -
28MR JOHNSON: Thank you, Your Honour. That summons I issued, I
29 had no idea that the matter had been set down for trial
30 at that point. I was in a situation where I was beside
31 myself with grief. I'm a defendant, not just in this

2Cressy
1 legal process but also in a very turgid commercial
2 process. I'm trying to get out of this so that I can
3 start earning an income and keep some of my properties
4 once this vexatious claims are removed. I'm desperate to
5 get judgment for Your Honour before New Year's Eve, even
6 earlier than that if possible Your Honour - - -
7HIS HONOUR: It sounds like - - -
8MR JOHNSON: - - - and to the extent - - -
9HIS HONOUR: It sounds like we're not going to be able to do
10 that.
11MR JOHNSON: Even to the extent of truncating and closing my
12 case Your Honour. Closing my case right here and now if
13 that's going to make a pupil difference. I must get
14 justice in judgment this year, Your Honour.
15HIS HONOUR: That's a matter for you. If you can finish that
16 and everyone finish their final addresses and Ms
17 Sofroniou wants to make a no case submission, which I
18 have to consider and then give judgment in - - -
19MR JOHNSON: Your Honour - - -
20HIS HONOUR: Timing is tight. I have done my level best in
21 this case - - -
22MR JOHNSON: Absolutely, sir.
23HIS HONOUR: - - - long hours, coming at the end of an
24 extremely grinding year, if I may say so, to accommodate
25 this case. I have lost count of the times I have asked
26 you to be relevant, stick to the point and not waste
27 time. If I had a dollar for every time I'd asked you to
28 do that - - -
29MR JOHNSON: I'm eternally grateful for your efforts,
30 Your Honour, regardless of the outcome.
31HIS HONOUR: The fact of the matter is I don't know whether

2Cressy
1 even doing all of that would complete.
2MR JOHNSON: Your Honour, may I also submit that the - - -
3HIS HONOUR: I suggest we'll see where we're at tomorrow
4 evening.
5MR JOHNSON: Your Honour, may I submit the concerns you have
6 about lack of information to me, that's quite abundantly
7 the case. The plaintiff just simply hasn't presented an
8 adequate case. They don't have the facts.
9HIS HONOUR: That's why I keep directing that comment, that
10 remark, not to you - - -
12HIS HONOUR: - - - I direct it to Mr Devries.
13MR JOHNSON: Yes, thank you.
14HIS HONOUR: It's his clients application. He may persuade me
15 to the contrary and if you think there's any criticism of
16 you in that, there is not.
17MR JOHNSON: No, I took no criticism. It's just frustration
18 that I am defending myself on a case that hasn't been
19 presented - - -
20HIS HONOUR: Well, Mr Devries says to the contrary so I've got
21 to hear his response to the point I've made. It's best
22 we don't get ourselves losing what little time is left.
23MR DEVRIES: I was going to say Your Honour, in the context of
24 the flag that I've have flown and where Your Honour had
25 beaten me to the mark was that what I was seeking was not
26 inconsistent with - or what I'd be seeking was not
27 inconsistent with Mr Johnson's chambers application.
28HIS HONOUR: That may or may not right but I'm just not going
29 to make any orders in the - - -
30MR DEVRIES: No.
31HIS HONOUR: You're not even going to tell me what properties

2Cressy
1 you wanted to apply to. What properties are for sale?
2 There's no evidence on it. I can't - - -
3MR DEVRIES: I can't do that at this very moment, Your Honour.
4HIS HONOUR: There's no sense debating it - - -
5MR DEVRIES: No.
6HIS HONOUR: Let's just get on.
7MR DEVRIES: Your Honour, before I turn to Giller v. Procopets
8 I was going to - - -
9HIS HONOUR: If the parties could turn their mind to any
10 sensible orders I could make? I can't see this case
11 completing tomorrow. Not at the snail-like pace at which
12 the case has proceeded so far. If the parties could turn
13 their minds to any sensible order that can be made to
14 facilitate a sale, and both parties having assurances to
15 the safekeeping of any proceeds in the meantime? I'd be
16 prepared of course to make those orders because I would
17 think in both parties – interested in some of these
18 properties on which debt is accumulating be sold but I
19 need some proper information if the matter's going to be
20 a matter of contest. I can't simply make the orders
21 against the protestation of one party, not in the absence
22 of proper information or evidence.
23MR DEVRIES: If Your Honour pleases. Your Honour, returning to
24 the process it's not entirely clear from the authorities
25 but - whether the chicken comes first or the egg comes
26 first. Whether the court has to find the existence of a
27 domestic relationship or determine what the (indistinct)
28 of the parties is, but at some stage in the process the
29 court has to determine what the property and financial –
30 sorry, what the property of the parties real and person
31 is and then divide it. And the court as I have indicated

2Cressy
1 to Your Honour, and I'll come back to that in a moment in
2 the context of Giller v. Procopets, can do it either on
3 an asset by asset approach or globally. You can do it by
4 way of – as the court did in that case by - - -
5HIS HONOUR: I think the court - - -
6MR DEVRIES: - - - for it - - -
7HIS HONOUR: I think the approach – this global by global or –
8 sorry, global or asset by asset is more how you calculate
9 things like contributions - - -
11HIS HONOUR: Then ultimately you try to get some sort of
12 comparison of the respective contributions, and you
13 decide what will be just and equitable in terms of an
14 adjustment of the legal interests that are then proven to
15 exist.
16MR DEVRIES: In most cases, sir, and as far as my researches go
17 the decision of the Court of Appeal may be the exception,
18 but in most cases the court determines on a percentage
19 having got all the contributions and the fair and
20 equitable – and then applies that to the pool. But it
21 appears that the Court of Appeal did it a little bit the
22 other way. This is the thing we think is appropriate and
23 that happens to equate to I think it was ten per cent or
24 almost ten per cent, and as far as I can see in almost
25 all cases if the court determines on a division it's done
26 on a percentage basis.
27 That's the translated if it can be translated. One
28 of the exceptions is Findlay v. Besley and those cases
29 where the court says, "Well, sufficient provision has
30 been made and therefore we don't have to go any further".
31 And that is what His Honour Justice Gillard as he then

2Cressy
1 was, the judge at first instance did and that's what His
2 Honour Justice Ashley would've done.
3HIS HONOUR: What did Justice Gillard do in Procopets?
4MR DEVRIES: He took the view that in all of the circumstances
5 the plaintiff had been – in terms of the domestic
6 relationship the plaintiff had been adequately
7 compensated for by her contributions by what happened
8 through the relationship.
9HIS HONOUR: I follow.
10MR DEVRIES: That's what His Honour Justice Morris as he then
11 was did in Findlay v. Besley as well. In fact what His
12 Honour did in that case was to say, "I don't need to look
13 at the contributions as homemaker and parent because
14 whatever adjustment I would make still wouldn't cover the
15 difference between what Ms Beswick had obtained and what
16 she would've obtained". Now, turning to Giller v.
17 Procopets - - -
18MR JOHNSON: Sorry, excuse me for interrupting. I just didn't
19 understand any of that, Your Honour. Forgive me, I'm
20 sorry.
21HIS HONOUR: No, that's all right. What Mr Devries is saying
22 was that there may be some cases where a court finds that
23 although contributions were made, no adjustment of the
24 existing legal interest is required to ensure justice and
25 equity. It's all a case by case matter though.
26MR JOHNSON: Is it a suggestion that the party who made the
27 contributions ate their cake during the relationship, and
28 they shouldn't - - -
29HIS HONOUR: I don't know.
30MR JOHNSON: I'm struggling to make some sense - - -
31HIS HONOUR: I'm not too sure that what Mr Devries is putting

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1 to me really has – with the greatest of respect to him
2 was of great assistance. It's really what adjustment his
3 client wishes or seeks in this case to what assets that
4 would assist you and me.
6HIS HONOUR: And an articulation of the principles of what
7 she's going to rely on.
8MR DEVRIES: Perhaps, Your Honour, if I can turn to Giller v.
9 Procopets, it is a very, very long decision, and it
10 covered a great number of issues over and above domestic
11 relationship matters, and - - -
12HIS HONOUR: Well, Justice Neeve articulated a number of the
13 principles.
14MR DEVRIES: Yes, and I just observed in passing that His
15 Honour Justice Ashley wasn't totally in agreement with
16 Her Honour's decision in that respect, but Her Honour was
17 in the majority.
18HIS HONOUR: Yes, the learned president - - -
19MR DEVRIES: Yes.
20HIS HONOUR: - - - agreed with Her Honour.
21MR DEVRIES: The important aspects of this decision are, first
22 of all, at Paragraph 272.
23HIS HONOUR: Yes.
24MR DEVRIES: It follows that His Honour fell into error in
25 holding that post separation contribution to exclude her
26 from consideration under 285(1)(b), and Her Honour went
27 on to say, "After the couple separated in July 1993,
28 Ms Giller contributed to welfare of the family by
29 undertaking domestic work and caring for the twins.
30 Mr Procopets also made homemaking and parent
31 contributions until December 1996. From December 1996,

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1 Ms Giller had complete responsibility for caring for the
2 couple's twin sons. These contributions should have been
3 taken into account", and Her Honour turned - to use the
4 heading that Her Honour used, "Requiring a nexus between
5 homemaker and parent", in quotations, "Contributions and
6 the property of the parties".
7 Their Honours adopted the approach taken by His
8 Honour Justice Wilson in Mallet v. Mallet, a High Court
9 decision, obviously in the Family Law jurisdiction, and I
10 quote, "Whilst deserving, the contribution made as a
11 homemaking parent must be assessed not in a merely token
12 way, His Honour emphasised that it must be 'in terms of
13 its true worth, the building up of assets'. He pointed
14 out the quality of the homemaking parent may vary
15 enormously", and then - - -
16HIS HONOUR: It goes a little bit wider in s.285, though,
17 doesn't it?
18MR DEVRIES: It does, Your Honour.
19HIS HONOUR: There's also a contribution to welfare.
20MR DEVRIES: Yes, and that's what Her Honour observes further
21 in Paragraph 275. Her Honour says, "Section 285(1)(b) of
22 the Act".
23HIS HONOUR: Yes?
24MR DEVRIES: "Like the New South Wales equivalent, does not
25 require any link between homemaker/parent contributions
26 and the acquisition, conservation, or improvement of
27 property. The link, which must be shown, is a link to
28 the welfare of the family", and I touched on that earlier
29 Your Honour. "Thus if His Honour had considered
30 Ms Giller's work as a homemaking parent to be irrelevant,
31 only if it contributed to the acquisition, conservation,

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1 or improvement of Mr Procopets' assets, this would have
2 been an error of law. However, in that case, His Honour
3 didn't" - - -
4HIS HONOUR: "Read a whole, however, His Honour's reason
5 dispose no such error".
6MR DEVRIES: Yes. "Thus His Honour did not ignore" - this is
7 277, Your Honour, "Thus His Honour did not ignore
8 Ms Giller's contribution to the welfare of the family, he
9 concluded the deponents have made equal contributions to
10 the welfare of the family while they were living
11 together, and that Ms Giller was more than adequately
12 compensated for her contributions by financial and other
13 benefits she received by living with Mr Procopets". Now,
14 of course, Your Honour, whilst I deal with it properly,
15 or deal with it in more detail in my address proper, that
16 was a much shorter relationship than - - -
17HIS HONOUR: Yes, three years.
18MR DEVRIES: - - - the one that I'm asserting today. Your
19 Honour, I'm not going to - unless it assists Your Honour,
20 go into the great discussion about the global versus
21 asset by asset approach.
22HIS HONOUR: No.
23MR DEVRIES: But what Her Honour says is, and she adopted - - -
24HIS HONOUR: I would have thought that where one party
25 primarily plays the role of the homemaker, and the other
26 is the breadwinner, that generally, you'd be looking at a
27 more global approach, whereas if they're both a couple
28 out physically working, then you might go the other way
29 around, but that's more just a matter of common sense
30 than a statement of any startlingly legal principle.
31MR DEVRIES: It also, with respect, Your Honour, depends on the

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1 nature of the assets. If all the assets were about
2 particular (indistinct) that's real estate, that might be
3 different than if there was a business development,
4 things like that.
5HIS HONOUR: Yes, anyway - - -
6MR DEVRIES: But I'll be - I'll be - - -
7HIS HONOUR: The judge has a discretion and really decides
8 between which is most appropriate, and you say in this
9 case I should really use a more global approach?
10MR DEVRIES: Yes.
11HIS HONOUR: Although, in a sense, I don't think either's
12 mutually exclusive of the other, is it?
13MR DEVRIES: It isn't.
14HIS HONOUR: You have to look at what each put into each
15 property, but you'd also stand back and have a look at a
16 global approach, for example, take into account
17 contributions that Mr Johnson made the will for the
18 family beyond material contributions.
19MR DEVRIES: And that goes both ways in respect - - -
20HIS HONOUR: I follow that.
21MR DEVRIES: In respect to both aspects, both her - - -
22HIS HONOUR: I follow.
23MR DEVRIES: Homemaker and parent, and because my client will -
24 if you accept my client's evidence, she says that she
25 made some - - -
26HIS HONOUR: She says she's - - -
27MR DEVRIES: - - - meaningful contributions to the acquisition,
28 maintenance, conservation of a number of the properties,
29 albeit not all of the properties.
30 What Her Honour says is what Your Honour, with
31 respect, has just said at 287. Provided that Your Honour

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1 with respect chooses between the approaches or
2 acknowledges there's two approaches, and doesn't take the
3 view that there is only one approach. That's as far as
4 that goes Your Honour.
5HIS HONOUR: I think Her Honour, this is the judge in the
6 present case is required to choose, I query whether the
7 discrete categories of approach. The Act doesn't say
8 they are.
9MR DEVRIES: With respect I think the way I've read that - - -
10HIS HONOUR: Take a look at your client - take your client's
11 evidence just for argument sake, you'd want a global
12 approach in terms of assessing her contribution to the
13 welfare of the house. You'd probably want to say, well I
14 contributed to Mr Johnson's wellbeing, supported him
15 during his frantic lifestyle that enabled him to go out
16 and walk a financial tight wire and end up with seven
17 properties in his hand. She would also want to probably
18 say, in addition - so that's sort of a global approach,
19 I actually made specific contributions to each property.
20 I don't see how you get a choice in that. It seems
21 to me you've got to take all the contributions into
22 account and value them. Some of there are more global in
23 the evaluation, some are more specific. Mr Johnson says,
24 I turned my expertise to getting these properties, to
25 doing some financial deals that I don't think that the
26 plaintiff would have the wherewithal to do. That, and I
27 was the one who clinched my credit - I was the one that
28 took the financial risk, paid the mortgages. I'm the one
29 that stands to go bankrupt if all this comes unstuck.
30 That's no doubt what he's going to be putting to me
31 in his final address as his contribution. Parts of that

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1 are global, some are property by property. Do you
2 disagree with that?
3MR DEVRIES: I will be submitting to Your Honour that it's more
4 appropriate for Your Honour to look at the contributions
5 that the parties have made to, if you like, the total
6 domestic relationship, including acquisition of
7 properties - acquisition of property maintenance,
8 property improvement of them, and then assess that as a
9 global figure, which is what ultimately, with respect,
10 Your Honour has to do at the end of the day anyway.
11 Having gone through the exercise of determining what the
12 contributions are, Your Honour has to with respect either
13 translate that to a global figure or translate it to what
14 Your Honour does on an asset by asset approach.
15 Your Honour, in this particular case there is no
16 allegation of domestic violence.
17HIS HONOUR: That cuts out a long part of Procepets judgment.
18MR DEVRIES: It does Your Honour.
19HIS HONOUR: I don't know if Mr Johnson's looking at the
20 judgment, but the reference of domestic violence is
21 that's because that's the next sub-heading in the
22 judgment Mr Johnson.
23MR JOHNSON: Thank you Your Honour.
24HIS HONOUR: Page 93 of the hard copy. "Normally evaluate at
25 the time of trial", p.103 identified the three-step
26 process. "First is the identification and valuation of
27 the property of the parties." Yes. Skipping lightly
28 over that, "Secondly is the evaluation balancing the
29 respective contributions of the parties". There's really
30 an anterior step to that in this case, that is whether
31 there was a domestic relationship and you say I'm wrong.

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1 So that's almost a threshold issue raised by Mr Johnson.
2MR DEVRIES: Yes, it is Your Honour.
3HIS HONOUR: I understand that.
4MR DEVRIES: And also, can I say, with respect to step one, in
5 some cases there's also a requirement to identify the
6 property and then value it. The court may, in some
7 cases, need to determine what is the property, but in
8 this case I'd - - -
9HIS HONOUR: This case is pretty straightforward. There were
10 at one stage seven properties in respect of which by your
11 amended claim you've asserted a claim, so we've been able
12 to identify them.
13MR DEVRIES: Yes.
14HIS HONOUR: It's a flying start, but that's about as far as
15 we've got.
16MR DEVRIES: It is Your Honour.
17HIS HONOUR: "Assessing the contribution of homemaker",
18 Paragraph 330. "Contribution to the welfare of the
19 family must be recognised, not in a token way, but in a
20 substantial way. Contributions of a de facto partner's
21 homemaking period should not be regarded as inferior to
22 the corresponding contribution of a spouse, nor should
23 contributions as a homemaker or parent be valued by
24 reference to the commercial value of those services".
25 They're all the principles, having read this fairly
26 quickly and fairly late last night, (indistinct)
27 relevant.
28 The issue of making the order, Paragraphs 342 and
29 following, and there's been a significant debate, but the
30 evidence of (indistinct) approach has been adopted by
31 Justice Neeve, which as I understand that approach is

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1 your two focal points are the contributions, so
2 articulate s.285 that you do look at all the relevant
3 circumstances and Justice Neeve at p.349 identified in
4 that case what they were. I've perhaps jumped ahead of
5 you, but that seems to me to be some of the principles I
6 was able to elicit from my reading last night.
7MR DEVRIES: And also she got some of the decisions of single
8 judges of this honourable court which talk about looking
9 at the contributions in the total context of the
10 relationship, and context is something that His Honour
11 Justice Morris referred to, and that's quoted at
12 Paragraph 348.
13HIS HONOUR: Yes. A lot of that sprung from the original
14 decision in this – one of the original decisions by
15 Justice Vincent in (indistinct) case.
16MR DEVRIES: And with respect, Your Honour, most decisions of
17 this court use that decision as the starting point and
18 there are two or three decisions where that's developed
19 and the appropriate - - -
20HIS HONOUR: So you leave the contributions, but you don't
21 simply look at them and stand still there; you look at
22 them in the whole context of the relationship and
23 relevant factors that pertain to them.
24MR DEVRIES: Yes, Your Honour, and that's what His Honour
25 Justice Vincent said in that case.
26HIS HONOUR: At some stage you will need to identify what
27 factors you say would be relevant apart from his usual
28 contribution.
29MR DEVRIES: Your Honour, the difficulty I have with going
30 further than this is that I have to wait till the
31 defendant has closed his case.

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1HIS HONOUR: No, that's all right. That's all right.
2MR DEVRIES: If I can just for the sake of Mr Johnson, Your
3 Honour, I provided him with a list of authorities which I
4 hope would be a fairly complete list of authorities of
5 this honourable court and - - -
6HIS HONOUR: You handed one up to me early in the case.
7MR DEVRIES: Yes, that's the same list I gave - - -
8HIS HONOUR: Then you identified some of the cases that you
9 would rely on, Burns v. Chasen, Robertson v. Austin, and
10 Findlay v. Besley, were the three I noted that you said
11 you would place particular reliance on. I've got myself
12 copies of those.
13MR DEVRIES: The other one – well, it was Conn v. Matusevicius
14 obviously that refer to in each of those decisions.
15HIS HONOUR: It's been referred to.
16MR DEVRIES: And obviously I would have – if it hadn't been for
17 yesterday I would have referred to His Honour's decision
18 in Giller v. Procopets, but that's now been to some
19 extent overtaken by the Court of Appeal decision, except
20 I suggest to Mr Johnson that the Court of Appeal's
21 decision needs to be read in the context of His Honour's
22 decision because they haven't thrown the baby out with
23 the bath water, it's been a touching up of his decision
24 to some extent. And I haven't touched on trusts, but the
25 decision I'll be principally relying on is the one that
26 Your Honour has already - - -
27HIS HONOUR: Baumgartner, wasn't it?
28MR DEVRIES: Baumgartner, yes.
29HIS HONOUR: Which picked up what, I think, Justice Deane said
30 in – was it Muschinski v. Dodds?
31MR DEVRIES: Yes. I did have that decision here somewhere, and

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1 I can give the citation to Mr Johnson.
2HIS HONOUR: Do you have that? Have you had access to them,
3 Mr Johnson?
4MR JOHNSON: I'm familiar with Baumgartner and Muschinski v.
5 Dodds, that's (indistinct) to me.
6HIS HONOUR: Thanks, Mr Johnson.
7MR DEVRIES: Also there were three Family Court decisions that
8 were in the list and they really relate principally to
9 what the court does if the court is satisfied there's
10 been material and non-disclosure of assets. I don't
11 think, as things currently stand, that I'll be making a
12 song and dance about that. I will be talking about - - -
13HIS HONOUR: Don't worry about the entertainment, but will you
14 be giving – making a submission?
15MR DEVRIES: My present thinking on that is that I won't be.
16 I'm just looking at my list of these decisions.
17HIS HONOUR: So I said yesterday, I don't think I'll get much
18 help from going through other decisions on their facts
19 and finding out what they did, and it's probably even
20 more unhelpful in this jurisdiction than being referred
21 to sentencing authorities and cases.
22MR DEVRIES: Yes.
23HIS HONOUR: And these cases fall clearly on known facts, but
24 if you have a contrary view - - -
25MR DEVRIES: Can I say, Your Honour, it's only that the general
26 approaches that are helpful to Your Honour because every
27 single decision can probably be successfully
28 distinguished from every other decision on the facts.
29HIS HONOUR: Yes.
30MR DEVRIES: And as an example, a major difference in Giller v.
31 Procopets and this case is the length of the

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1 relationship. And in that case the court found it was
2 highly significant that there was long delay between the
3 end of the relationship and the commencement of the
4 proceedings; that is not the case here.
5HIS HONOUR: No, what - - -
6MR DEVRIES: Well, sorry that would - - -
7HIS HONOUR: What would be your submission in this case in
8 terms of what you will be seeking? You did refer to a
9 percentage before, I don't ask you to put a figure on it,
10 but will you be submitting that I should adjust the legal
11 interests in any of the properties, if there are any,
12 still owned by Mr Johnson, by a particular percentage and
13 declare that your client has a joint interest in them?
14 Should convey half of his legal estate, or a quarter of
15 his legal estate in them?
16MR DEVRIES: I'll be submitting to Your Honour that Your Honour
17 should declare that - the property should be divided this
18 way, that my client get's all of the net equity in
19 166 Queen Street, Altona. And, that Mr Johnson's right,
20 title and interest in Hawkhurst Street gets transferred
21 to my client.
22HIS HONOUR: Is she seeking the Altona and Hawkhurst Street?
23MR DEVRIES: The proceeds of Altona, because I'm assuming
24 that - - -
25HIS HONOUR: How much were they - you have no idea?
26MR DEVRIES: I understand that's the one that's about $48,000.
27HIS HONOUR: M'mm.
28MR DEVRIES: I can flag this to Your Honour, that what I'll be
29 submitting - - -
30HIS HONOUR: What's the value of what she's seeking in
31 Hawkhurst, cause of this, I have no idea. Absolutely no

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1 idea. She might be seeking properties worth $5m - might
2 be worth nothing.
3MR DEVRIES: Your Honour, I was going to cover that in my
4 submissions.
5HIS HONOUR: I don't know how you can because there is no
6 valuation of Hawkhurst. We know the purchase price.
7MR DEVRIES: There are two ways of dealing with it Your Honour
8 and that is principally it would need to be sold in any
9 case. Its what happens to the net proceeds and it's a
10 matter whether the net proceeds are divided on a
11 percentage formula or whether Your Honour takes the view
12 that I'm urging upon you, that Mr Johnson has already
13 received very clear amounts and there should be an
14 adjustment to my client taking that. If I can indicate
15 this to Your Honour, that it will be my case that
16 Mr Johnson - I'm fearful of going down this path until
17 Mr Johnson does.
18HIS HONOUR: You don't have to. All I simply ask - I wasn't
19 asking for a submission - - -
20MR DEVRIES: I was trying to help Your Honour, but I
21 think - - -
22HIS HONOUR: The only help that it would be would be to have
23 some idea of the nature of the adjustment that you are
24 seeking. It seems to me what you've flagged is that the
25 nature of the adjustment you would be seeking is the
26 whole of the proceeds of the sale of Altona and the
27 Hawkhurst Crescent property be transferred to her.
28MR DEVRIES: Yes.
29HIS HONOUR: I take it that's - is that the application you
30 will make?
31MR DEVRIES: That will be the application and what I'll be

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1 submitting to Your Honour is that Mr Johnson has and will
2 retain the benefit of the proceeds of sale of Lisa Court,
3 the refinancing of Gibson Street. He retains Endeavour
4 Drive, Torquay - - -
5HIS HONOUR: The Point Cook properties.
6MR DEVRIES: Point Cook, the motor vehicles and the proceeds of
7 sale of the motor vehicles and his superannuation.
8HIS HONOUR: Right, anyway you've articulated that. You've
9 heard my concerns about the vagueness of that, but you
10 may persuade me that there's sufficient specificity in
11 the evidence to enable me to do justice, doing the best I
12 can.
13MR DEVRIES: Indeed Your Honour. Obviously it may be less
14 difficult to Your Honour if, as it turns out we have to
15 go into February next year, which no one wants, but it
16 may - because of the way - - -
17HIS HONOUR: I just can't see how it's going to work otherwise.
18 I'll hear - I don't know whether Mr Cockram's coming
19 tomorrow, then I hear the no case submission. I've got
20 to rule on that. If I can't do it extempore, then I'd
21 rule on that probably on Monday. I know you won't be
22 here, but your instructor can be here and anything I do
23 won't affect your client.
24MS SOFRONIOU: Please the court.
25MR DEVRIES: There will be - - -
26HIS HONOUR: Sorry?
27MS SOFRONIOU: May it please the court.
28MR DEVRIES: There may be one aspect in relation to that, that
29 may need to be drawn to Your Honour's attention. But, my
30 instructor can do that and that's if my learned friend's
31 successful, what happens with respect to costs. But, I'm

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1 being obtuse and I'm - - -
2HIS HONOUR: Lets just not - - -
3MR DEVRIES: I'm anticipating what might happen, Your Honour, I
4 shouldn't do that.
5HIS HONOUR: I don't know, but the reality is that I have a
6 timetable tomorrow. I'll have the Mr Cockram, I'll hear
7 the no case submission. Then, depending on how it goes,
8 I'll either deliver judgment on the spot or alternatively
9 I will reserve until hopefully deliver judgment early
10 next week. That really eats the year out. You're
11 unavailable the next three days and I don't - it's not
12 appropriate for me to come and go into this case.
13 It seems to me the benefit thing would be to put the
14 thing over. I need to have some idea tomorrow what the
15 status of these properties are. I know the parties have
16 difficulties communicating, but if the parties, in good
17 faith can each turn their minds to identifying what is
18 the status of their properties at the moment, in terms of
19 sale, about which I'm in a state of entire confusion.
20 And what might be the best orders to be made to prevent
21 damage to the parties interests.
22 Actual potential in them, then I'd be amenable to
23 that application. Now, we've run out of time, and I must
24 say, I have done my level best, more than that, to finish
25 this case this year, and I don't think there's any sense,
26 Mr Johnson, in you sitting there shaking your head after
27 what we've been through this week trying to keep you
28 relevant. We lost an enormous amount of time.
29MR JOHNSON: Your Honour, I wish we were at this point
30 12 months ago.
31HIS HONOUR: Now, it seems to me the best thing to do is to

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1 face reality, and that is to try to identify what we do
2 in relation to your summons, which would protect your
3 interest in it.
4MR JOHNSON: No, not any longer, Your Honour. That summons
5 (indistinct) I wanted to point out that I will do
6 whatever I can to get this case closed tomorrow. I'm
7 thinking Mr Cockram's evidence, if he even appears, may
8 be 15 minutes. My submissions may be an hour - - -
9HIS HONOUR: But I've got to hear - - -
10MR JOHNSON: Yes, that's what I'm trying to work out - - -
11HIS HONOUR: - - - because the 2nd and 3rd defendants to
12 counterclaim have not even decided whether they're going
13 to give evidence. They may call 28 witnesses.
14MR JOHNSON: Your Honour, my submission is effectively a no
15 case to answer to the plaintiff's claim, and all I'm
16 seeking on the counterclaim is costs against the - all
17 three defendants and the plaintiffs.
18HIS HONOUR: Well, I think you missed the point.
19 Ms Sofroniou - - -
20MR JOHNSON: I - - -
21HIS HONOUR: - - - has - - -
22MR JOHNSON: - - - the point, Your Honour.
23HIS HONOUR: Sofroniou has foreshadowed, and even made
24 available to you a ruling, which I gave earlier this
25 year, which I set out the relevant principles in, that
26 before being required to signify whether she will call
27 witnesses to answer the allegations made against her
28 clients in an amended defence and counterclaim, she would
29 be submitting that there is no case to answer in respect
30 of the causes of action pleaded. If I uphold that
31 submission, that will mean the dismissal of the

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1 counterclaim against her clients. If I don't uphold it,
2 subject to whether I put her to (indistinct) evidence or
3 not, she may then seek to call witnesses.
4 Ordinarily a party, seeking to make an no case
5 submission, is put to the election, but there are
6 exceptions to that rule, two exceptions. Firstly, where
7 that party is facing allegations which are very serious,
8 such as fraud and the like, and the other exception,
9 we'll put it this way, it's less - the requirement to put
10 a party to their election is less stringent where the
11 party is simply seeking to rely on an OK submission based
12 on the proposition of a hiatus in critical evidence, as
13 distinct from arguing the quality of the evidence.
14 Now, I understand that will be Ms Sofroniou's point,
15 which is a little bit different to the case that I had
16 before me earlier this year, and I recall, may I stand
17 corrected, I think in that case I did not put the party
18 making the no case submission to the election in that
19 case, because it - the allegation against them was that
20 they had committed a criminal offence of arson, and it
21 seemed to me, in those circumstances, that they ought not
22 to be shut out should I take the view that there was a
23 case to answer. In this case, you have alleged criminal
24 activity against a solicitor, an admitted solicitor to
25 this court.
27HIS HONOUR: That he was acting in concert in a burglary, and
28 in those circumstances, no doubt, Ms Sofroniou will be
29 submitting to me she should be put to her election.
30MR JOHNSON: Your Honour, I submit that I've alleged civil, not
31 criminal, misconduct.

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1HIS HONOUR: You alleged a theft, and that Mr Hanlon was
2 intimately involved. Now, if that means anything, in
3 terms of the law of tort, it means acting in concert.
4 The principles of acting in concert in tort are pretty
5 similar to those in crime, that effectively, if you are
6 right, if that allegation were made out, I would be
7 making the finding that Mr Hanlon had committed a
8 criminal offence, albeit that I'd be making that finding
9 on the civil burden - standard of proof, and cases such
10 as those, it is not uncommon for a judge not to put a
11 party to their election. Now, just educating you in
12 that - - -
14HIS HONOUR: - - - assist you.
15MR JOHNSON: - - - Your Honour.
16HIS HONOUR: Now, if that is right, and Ms Sofroniou fails in
17 her submission to me, then she may elect to call
18 evidence. If she succeeds, or if I put her to election,
19 either way, then of course she won't be able to call
20 evidence, or won't be calling evidence.
21MR JOHNSON: Your Honour, my - - -
22HIS HONOUR: So we don't know how long, but I would suspect
23 that we will not finish all the submissions. Mr Devries,
24 I suspect, has got a lot of matters he needs to put to me
25 in final address.
26MR JOHNSON: I did estimate three to four weeks, Your Honour.
27HIS HONOUR: Yes.
29HIS HONOUR: - - - you've said that.
30MR JOHNSON: - - - truncating, you know - - -
31HIS HONOUR: You've said that.

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1MR JOHNSON: - - - I believe I've truncated - - -
2HIS HONOUR: I have made my comments here and in another place
3 about being told it was a two day case.
4MR JOHNSON: Yes.
5HIS HONOUR: And I have taken the steps to ensure that this
6 type of incident never occurs again, certainly with me.
7MR JOHNSON: Yes.
8HIS HONOUR: And hopefully no other judge who receives a case
9 on this basis.
10MR JOHNSON: Yes.
11HIS HONOUR: Now, having settled that, we'll simply do our
12 little best to get as far as we can tomorrow, that's all
13 we can do, but based on that, reality strikes, and that
14 is that we are very unlikely to complete tomorrow.
15MR JOHNSON: M'mm.
16HIS HONOUR: That will mean that you should turn your mind to
17 what orders you would ask to be made, sensible orders,
18 similar to those set out in your summons, to protect your
19 interest in the properties before the mortgagees take
20 matters into their own hands.
21MR JOHNSON: I believe the mortgagees will hold out if I have
22 to inform them that there will be a judgment in late
23 February.
24HIS HONOUR: Yes, well - - -
25MR JOHNSON: We don't need anything as drastic as what I was
26 looking at.
27HIS HONOUR: All right.
28MR JOHNSON: Not knowing the trial had been set down in August
29 this year, Your Honour.
30HIS HONOUR: All right, well, we'll proceed on tomorrow, and
31 that being the case - yes. Now, Exhibit 58?

2Cressy
1MR JOHNSON: Yes, I'll need to hunt for the rest of that
2 document this evening, Your Honour.
3HIS HONOUR: No, well, just the document that I've so far
4 received is an exhibit. Would you kindly hand it over?
5MR JOHNSON: Yes, yes, that's right. Yes, I will look at that
6 before I leave, Your Honour.
7HIS HONOUR: I'm sorry?
8MR JOHNSON: Yes, I will look for that before I leave - - -
9HIS HONOUR: Mr Richards has other matters to attend to.
10MR JOHNSON: Yes, exactly, Your Honour.
11HIS HONOUR: Other work to do so - - -
12MR JOHNSON: It should be - - -
13HIS HONOUR: I would ask you now to hand it back over to him.
14 You took out of custody an exhibit of this court. It's
15 evidence in this court. Well, the alternative may be but
16 I think your side might be able to make up the deficit in
17 the exhibits? Mr Johnson seems to have some
18 difficulties.
19MS SOFRONIOU: Certainly, Your Honour; 58.
20HIS HONOUR: Here it is.
21MS SOFRONIOU: It's found.
22HIS HONOUR: Thank you. Now, 9.30 tomorrow morning.
23MR DEVRIES: If Your Honour pleases.
24MS SOFRONIOU: If it please, Your Honour.
25ADJOURNED TO FRIDAY 12 DECEMBER 2008

2Cressy

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1 (Kaye J)

2UPON RESUMING AT 2.18 P.M.:

3HIS HONOUR: Now, it's been received at registry, there's some

4 documents subpoenaed by the plaintiff's solicitors from

5 the Trust Company Fiduciary Services Limited.

6MR DEVRIES: That's one of the mortgagees, Your Honour.

7HIS HONOUR: Do you seek access to those documents?

10HIS HONOUR: Well, I'll certainly make them available to you

11 and to the other parties, subject to - - -

12MS SOFRONIOU: Thank you, Your Honour.

13HIS HONOUR: Each of you giving the appropriate undertaking.

14 Do you wish to look at them too, Mr Johnson?

17HIS HONOUR: You would need to give to the court the

19MR JOHNSON: Most definitely, Your Honour.

20HIS HONOUR: You better wait for it.

21MR JOHNSON: I'm sorry.

22HIS HONOUR: That - it's a formal undertaking that you will

23 return the documents to the court.

24MR JOHNSON: Of course, Your Honour.

25HIS HONOUR: Yes, thank you, and speaking of which, I'll

26 release them first to Mr Devries. I understand you'd had

27 the Commonwealth Bank documents for two days.

28MR JOHNSON: They've been sitting on my desk, but I wasn't

29 given an opportunity to see them at a quarter to ten on

30 the morning allotted, it was more like four minutes to

1.LL:SK 11/12/08 FTR:29 245 DISCUSSION

3MR JOHNSON: I asked your tipstaff yesterday - - -

5 to return them for the court?

6MR JOHNSON: I've only had a minute to look at them, Your

8HIS HONOUR: That didn't really answer my question,

10MR JOHNSON: I will return them now, Your Honour.

11HIS HONOUR: Thank you very much.

12MR JOHNSON: Thank you, Your Honour. It's an oversight they

13 haven't been returned previously.

14HIS HONOUR: Yes, unfortunately. Now, have you issued your

17 is awaiting collection of the process server.

18HIS HONOUR: Good.

19MR JOHNSON: Hopefully we'll serve him tonight or in the

20 morning in time for 9.30 attendance. I've given

22HIS HONOUR: Morning will be too late.

23MR JOHNSON: If it's 6.30 in the morning, it might be - - -

26MR JOHNSON: The instructions are - - -

27HIS HONOUR: That was on the basis on which you put to me it

28 would be served, and on the basis on which (indistinct)

30MR JOHNSON: I'll extend - I'll clarify those instructions with

31 the process server - - -

1.LL:SK 11/12/08 FTR:29 246 DISCUSSION

2MR JOHNSON: I've also left instructions that Mr Cockram is to

3 be informed that I have taken the liberty of saying - to

4 be informed that he will be arrested if he doesn't turn

5 up. He has previously been arrested in respect of the

6 matters that I wish to question - - -

7HIS HONOUR: You can leave whatever instructions you like.

8MR JOHNSON: Thank you, Your Honour.

9HIS HONOUR: That actually is not legally correct. Now, where

10 do you go from here? So we're still waiting for

11 Mr Cockram, hopefully he'll be called tomorrow morning,

12 Ms Sofroniou will not be able to do her no case

14MS SOFRONIOU: That's not a problem, Your Honour.

15HIS HONOUR: - - - the case is closed, so, Mr Devries, are you

16 in a position to do any part of your closing today, or?

17MR DEVRIES: Unfortunately, I have to say yes, Your Honour.

18HIS HONOUR: I don't force you to do it if it's not convenient,