IN THE SUPREME COURT OF VICTORIA AT MELBOURNE

IN THE COURT OF APPEAL Court No. 9665/07

BETWEEN

HAROLD JAMES JOHNSON Appellant

and

PIPPIN PATRICIA CRESSY and others Respondents

and others according to the Schedule

NOTICE OF APPEAL

Date of Document: 11 March 2009 Solicitor’s Code: 101944

Filed on behalf of:
The Defendant, Harold James Johnson
Prepared by: Telephone: 03 9279 3932
Sutton Lawyers Facsimile: 03 9279 3955
st
1 Floor, 141 Osborne Street Ref: HJJ/PC/VSC966507
South Yarra Victoria 3141

To: The Respondents

And to: The First Respondents Solicitors

Berry Family Law
1st Floor, 399 King Street
Melbourne Victoria

And to The Second and The Third Respondents’ Solicitors

Lander & Rogers
Level 16, 600 Bourke Street
Melbourne Victoria

TAKE NOTICE that the appellant complaints of the judgement and orders of the Honourable
Justice Kaye given and made as follows:

A. On 25 February 2009:
 -2-

A1. Including to the effect:

“(1) That the defendant pay to the plaintiff $105,000.

(2) In order to secure payment to the plaintiff of that sum -

(a) The net proceeds of the sale of the Altona property be paid to the
plaintiff.

(b) The Hawkeshurst [sic] Court property be sold, and out of the net
proceeds thereof (after deduction of any amount due to the mortgagee of
the property, of any other amounts secured over the property, and of the
costs of the sale of the property) there be paid to the plaintiff of a sum
which, when added to the net proceeds of the rule of the Altona property
so paid to the plaintiff, results in the payment to the plaintiff of an amount
no greater than $105,000;”

A2. And more particularly as stated in items 1 to 12 of the General Form of Order date
given 25 February 2009 and date authenticated 11 March 2009 attached to this Notice of
Appeal.

B. On 11 February 2009:

B1. To the effect: [to be completed]

B2. And not capable of being better particularised by the Appellant as at the date of this
Notice of Appeal because those orders that day of the Learned Trial Judge have not yet
been finalised or authenticated by this Honourable Court or made available to the Applicant.

C. On 10 February 2009:

C1. To the effect: [to be completed]

C2. And not capable of being better particularised by the Appellant as at the date of this
Notice of Appeal because those orders that day of the Learned Trial Judge have not yet
been finalised or authenticated by this Honourable Court or made available to the Applicant.

D. On 9 February 2009:

D1. To the effect: [to be completed]

 -3-

D2. And not capable of being better particularised by the Appellant as at the date of this
Notice of Appeal because those orders that day of the Learned Trial Judge have not yet
been finalised or authenticated by this Honourable Court or made available to the Applicant.

E. On 5 February 2009:

E1. To the effect: [to be completed]

E2. And not capable of being better particularised by the Appellant as at the date of this
Notice of Appeal because those orders that day of the Learned Trial Judge have not yet
been finalised or authenticated by this Honourable Court or made available to the Applicant.

F. On 12 December 2008:

F1. To the effect: [to be completed]

F2. And not capable of being better particularised by the Appellant as at the date of this
Notice of Appeal because those orders that day of the Learned Trial Judge have not yet
been finalised or authenticated by this Honourable Court or made available to the Applicant.

G. On 5 December 2008:

G1. To the effect: [to be completed]

G2. And not capable of being better particularised by the Appellant as at the date of this
Notice of Appeal because those orders that day of the Learned Trial Judge have not yet
been finalised or authenticated by this Honourable Court or made available to the Applicant.

H. On 2 December 2008:

H1. To the effect [to be completed]:

H2. And not capable of being better particularised by the Appellant as at the date of this
Notice of Appeal because those orders that day of the Learned Trial Judge have not yet
been finalised or authenticated by this Honourable Court or made available to the Applicant.

GROUNDS

Glossary

“Mr Anderson” Means Richard Peter Anderson, solicitor, principal and chairman of
Harwood Andrews.

“Barwon Water” Means Barwon Regional Water Corporation.

“Berry Family Law” Means the solicitors for Ms Cressy and employer of Mr Turnbull.
 -4-

“Mr Berry” Means Peter Berry, the principal of Berry Family Law and the
immediate ‘responsible partner’ for Mr Turnbull.

“Mr Cockram” Means Peter Cockram:

(a) A fifty year old Park Orchards former Salvation Army aged care
consultant and married man (with a wife his own age and two
school aged children of their marriage); and

(b) Ms Cressy’s long-term, primary love interest from about 200 up to

and including at least all or part of 2002 (or longer).

“Cressy v Johnson Means the judgement and orders and findings of the Learned Trial
& Ors (No.1)” Judge in these proceedings made on 11 February 2009 and published
at [2009] VSC 35.

“Cressy v Johnson Means the judgement and orders and findings of the Learned Trial
& Ors (No.2)” Judge in these proceedings made on 11 February 2009 and published
at [2009] VSC 42.

“Cressy v Johnson Means the judgement and orders and findings of the Learned Trial
& Ors (No.3)” Judge in these proceedings made on 25 February 2009 and published
at [2009] VSC 52.

“Ms Cressy” Means the First Respondent.

“Ms Cressy’s Means the diaries of Ms Cressy, as photocopied by Mr Johnson and

Diaries” tendered in evidence as Exhibits ## in these proceedings.

“Ms Cressy’s Semi- Means the semi-biographical notes written by Ms Cressy (undated) and
Autobiography” found by Mr Johnson on 26 December 2008, abandoned in the garage
at 2 Dorrington Street after Ms Cressy (in residence from about July
2008 to about November 2008 when it seems she vacated possession
of those premises in favour of Mr Johnson’s mortgagee (the plaintiff in
Proceedings No. 9263 of 2007).

“Ms Cressy Senior” Means Gail Patricia Cressy:

(a) fifty-one year old unmarried mother of three daughters by three

different men, aged 30, 14 and 9 years approximately (and the
oldest of which being Ms Cressy): and

(b) the delinquent former tenant of one of Mr Johnson’s former

properties, 12 Lisa Court Hoppers Crossing, from June 2003 to
 -5-

October 2007, when Ms Cressy Senior was evicted from that

property by VCAT Orders, owing Mr Johnson some 7 months of
rental arrears (struck on a concessional basis at half market
rental).

“Mr Devries” Means Graeme Devries of the Victorian Bar at Melbourne, and counsel
instructed by Mr Turnbull from about April 2008 to represent Ms Cressy
in these proceedings and other proceedings in the Federal Magistrates
Court and the Victorian State Magistrates Court.

“FMC Orders” Means the orders made by Federal Magistrate O’Dwyer in Federal
Magistrates Court proceedings No. MLC 10308 of 2007 as interim
orders on 10 September 2008 and re-issued as final orders on 6
February 2009.

“Gotham City” Means Gotham City, licensed brothel in South Melbourne, one of three
licensed brothels where Ms Cressy works (or as at August 2008
worked) as a prostitute, probably from about 2006 or earlier up until at
least December 2007 (if not still to the present day).

“Mr Hanlon” Means the Second Respondent.

“Harem Means Harem International, licensed brothel in South Melbourne, one

International” of three licensed brothels where Ms Cressy works (or as at August
2007 worked) as a prostitute, and where she worked as such from mid-
2000 until at least 2003 (if not still to the present day).

“Harwood Andrews” Means the Third Respondent, namely the law firm of Harwood Andrews
Pty Ltd (trading as “Harwood Andrews Lawyers”):

(a) the original solicitors for Ms Cressy from early 2007 (or 2006)
and up until about April 2008;

(b) the employer of Mr Hanlon; and

(c) principal Geelong solicitors heavily engaged by Mr Johnson

under ‘local content rules’ throughout all of the eight years
between October 1999 and September 2007 to provide
substantial legal services for Barwon Water, where Mr Johnson
was engaged as in-house senior legal counsel for all of that
period.

“Mr Ingleby” Means Richard Ingleby of the Victorian Bar at Melbourne, and original
counsel instructed by Mr Hanlon to draft Ms Cressy’s statement of
 -6-

claim in these proceedings and to represent Ms Cressy in these

proceedings until about April 2008.

“Interlocutory VSC Means the orders in these proceedings made by Mr Justice Anthony
Orders” Cavanough and Mr Justice Hartley Hansen on 20 June 2008 and 14
July 2008 that not only evicted Mr Johnson from Dorrington Street, but
also prohibited him from all communication with the mortgagee for that
property (the plaintiff in Proceedings No. 9263 of 2008).

“Lorraine Starr” Means Lorraine Starr, licensed brothel in Malop Street Geelong, where
Ms Cressy worked as a prostitute from about 1996 (then aged about 16
or 17 years old) up until about at least 2001 and possibly later.

“Mr Johnson” Means the Appellant, who is also the sole director of and sole lawyer
employed by Sutton Lawyers, the Appellant’s solicitors and advocate in
these proceedings.

“Mr Johnson’s Means each of the following properties:

Properties”
(a) Dorrington Street Point Cook (“Dorrington Street”);

(b) 10 Hawkhurst Court Hoppers Crossing (“Hawkhurst Court”);

(c) 7 Inverloch Drive Point Cook (“Inverloch Drive”);

(d) 9/2 Gibson Street Caulfield East (“Gibson Street”);

(e) 166 Queen Street Altona (‘Queen Street”);

(f) 7A Endeavour Drive Torquay (“Endeavour Drive”),

but does not include:

(g) Mr Johnson’s former property, 12 Lisa Court Hoppers Crossing

(“Lisa Court”).

“Lander & Rogers” Means the law firm of Lander & Rogers Pty Ltd, the solicitors
representing the Second Respondent and the Third Respondent in
these proceedings since about April 2008.

“Le Boudoir” Means Le Boudoir, licensed brothel in Collingwood, one of three

licensed brothels where Ms Cressy works (or at least as at August
2007 worked) as a prostitute, probably from about 2006 or earlier up
until at least December 2008 (if not still to the present day).

“Mr Marc” Means Marc,

 -7-

(a) fifty-one year old (one day older than Ms Cressy Senior)
Toorak advertising executive;

(b) married man (with a wife his own age and two children of their
marriage approximately Ms Cressy’s age); and

(c) Ms Cressy’s long-term, primary love interest since about

September 2006 up to and including at least December 2008.

“Primelife” Means Primelife Corporation Limited, an Australian corporation listed

on the Australian Stock Exchange.

“Ms Sofranou” Means Rena Sofranou of the Victorian Bar at Melbourne, counsel
instructed Lander and Rogers to represent the Second Respondent
and the Third Respondent in these proceedings since about April 2008.

“Sutton Lawyers” Means the law firm of Sutton Lawyers Pty Ltd (trading as “Sutton
Lawyers”) the solicitors for the Appellant in these proceedings and
other proceedings in the Federal Magistrates Court and the Victorian
State Magistrates Court.

“Mr Turnbull” Means James Turnbull, the employee solicitor of Berry Family Law,
solicitors for Ms Cressy.

“Mr Twigg” Means Collin Twigg, a principal of the Werribee office of Harwood
Andrews and the immediate ‘responsible partner’ for Mr Hanlon.

“Mr Zac” Means Zac,

(a) Late-thirty-something year old Sydney property developer; and

(b) Ms Cressy’s other (secondary, simultaneous) long-term lover

and love interest (secondary and simultaneous with and to Mr
Marc) from about September 2006 up to and including at least
April or May 2007 (and probably longer).

Appearances

1. (a) The Learned Trial Judge erred in fact and in law in holding that the Appellant
appeared in person.

(b) The Learned Trial Judge should have held that the Appellant is represented in
these proceedings by an incorporated legal practice Sutton Lawyers Pty Ltd
(trading as “Sutton Lawyers”), of which Mr Johnson is the sole director and sole
employee solicitor.

Order 15.01 Supreme Court (General Procedure) Rules 2005

 -8-

2. (a) The Learned Trial Judge erred in fact and in law in entertaining an application on
2 December 2008 (“at the outset of the proceeding”) that the Court should
appoint a litigation guardian under Rule 15.01 of the Rules of the Supreme Court
to conduct the Appellant’s proceeding on his behalf and, in effect, instead of
Sutton Lawyers.

(b) The Learned Trial Judge erred in fact and in law in holding that it was only
against the Learned Trial Judge’s “better judgement” that the Learned Trial
Judge not appoint a litigation guardian under Rule 15.01 to conduct the
proceeding on behalf of Mr Johnson [sic, instead of Sutton Lawyers].

(c) The Learned Trial Judge should have held that:

(i) Neither Mr Devries nor the First Respondent had standing under
Order 15.01 to make that application;

(ii) That the application, even apart from it being made at the outset of
the proceeding and without prior notice to the Appellant, was:

(1) an abuse by Mr Devries and his instructors and by Ms Cressy of

the proper processes of this Honourable Court;

(2) a wild, unsubstantiated and grossly unprofessional attack on Mr

Johnson, who is:

i. a barrister and solicitor of this Honourable Court of some

18 plus years good standing;

ii. “… at the least, is a very intelligent person. He has a quick

and incisive intellect. In fact, for a person who professes
never to have practised in Court before, he displayed a
number of skills of a natural advocate. “ (paragraph 7 of
Judgement in Cressy v Johnson & Ors (No.3).

(3) a calculated attempt by Mr Devries and his instructors to

intimidate Mr Johnson and to slander Mr Johnson, from the
perceived privilege and safety of the bar table;

(4) a calculated attempt by Mr Devries and his instructors to draw the

Court’s attention away from Ms Cressy’s obvious mental health
problems (or, as made obvious by the evidence and conduct Ms
 -9-

Cressy during the course of the proceedings);

(5) a calculated attempt by Mr Devries and his instructors to

unlawfully and improperly undermine Mr Johnson’s personal and
professional credibility and position in these proceedings from the
“outset of proceedings”,

(6) was professional misconduct by Mr Devries and his instructors

that was and ought to have been actioned as such by this
Honourable Court under relevant statutory provisions, including
section # of the Legal Practice Act 200#, and under the inherent
jurisdiction of this Honourable Court; and

(7) had the effect of diverting some 3 ½ hours or more of the Learned
Trial Judge’s valuable time and attention, valuable time attention
that could otherwise have been better spent by the Learned Trial
Judge devoting some or all of those 3 ½ hours to a proper
consideration of Mr Johnson’s application for these proceedings
No. 9665 of 2007 and Proceedings No. 9263 of 2008 to be
consolidated and heard together as one proceedings.

Application for Orders for Directions and for Consolidation of Proceedings No. 9665 of
2007 and No. 9263 of 2008

3. (a) The Learned Trial Judge erred in fact and in law in ruling against Mr Johnson ‘s
application “at the outset of the trial” that this proceeding should be combined
with the proceeding instituted against him by Trust Company Fiduciary Services
Limited (formerly known as Permanent Trustee Company Limited) in Proceeding
No. 9263 of 2008.

(b) The Learned Trial Judge should have ruled that this Proceeding No. 9665 of
2007 and Proceeding No. 9263 of 2008 be consolidated and heard together.

(c) The Learned Trial Judge should have found that:

(i) All of the parties to these proceedings (The Appellant, the First
Respondent, the Second Respondent and the Third Respondent) are
parties to Proceedings No. 9263 of 2008;

(ii) That Mr Johnson’s Properties are affected by both these proceedings

and by Proceedings No. 9263 of 2008:

(1) Proceedings No. 9263 of 2008 were issued in respect of

 - 10 -

Dorrington Street, which was also affected by interlocutory

orders made in this Honourable Court on 20 June 2008 and
14 July 2008 by Mr Justice Anthony Cavanough and Mr
Justice Hartley Hansen, respectively;

(2) It is probably that more, if not all, of Mr Johnson’s

Properties, all of them the subject of these proceedings,
would become the subject of Proceedings No. 9263 of 2008
also;

(iii) That this proceeding and Proceeding No. 9263 of 2008 were at
virtually the same stage since, as at the commencement of these
proceedings on 2 December 2008:

(1) in neither proceedings had the pleadings been finalised by

any of the parties;

(2) In neither proceedings had there been any orders for

discovery or for interrogatories;

(3) In neither proceedings had their been any discovery of

documents (apart from an Affidavit of Documents drawn up
for Ms Cressy by Mr Turnbull, to which was attached a
series of documents that:

1. (as found by the Learned Trial Judge) Ms Cressy stole

from Mr Johnson during an aggravated burglary on 16
November 2007; and

2. were of no relevance to these proceedings (as

demonstrated by them not being relied upon as
exhibited evidence or otherwise referred to in
evidence by Ms Cressy during the course of the
proceedings);

(4) Neither proceedings had been properly set down for trial,
and in particular, these proceedings being set down for trial
based on a misleading and deceptive basis:

1. firstly, having regard to the lack of orders for

directions, including lack of finalization of pleadings,
 - 11 -

lack of discovery and lack of interrogatories;

2. secondly, based on a reckless (if not fraudulent)

estimate by Mr Turnbull and/or Mr Devries of two days
duration (probably a duration given by Mr Turnbull to
Associate Justice Kings in August 2008),
notwithstanding Mr Johnson’s long-standing written
estimation of March 2008 of at least 3 – 4 weeks
(which estimate was probably not communicated to
Associate Justice Kings).

(5) Mr Johnson was not tardy in making the application for

consolidation of these proceedings with Proceedings No.
9263 of 2008:

1. The Statement of Claim in Proceedings No. 9263 of

2008 was only served on Mr Johnson on # November
2008;

2. On # November 2008 Mr Johnson filed his Defence

and Counterclaim in those Proceedings No. 9263 of
2008 and filed a Summons in those proceedings
seeking that they be consolidated with these
proceedings.

3. The filing of Mr Johnson’s Defence and Counterclaim

in Proceedings No. 9263 of 2008 and the Summons
were delayed by about a week on account of delays
by the Supreme Court Prothonotory in assessing (and
in the event granting) Mr Johnson’s application for
waiver of Court fees on financial hardship grounds.

4. Mr Johnson’s application in proceedings 9263 of 2008

for consolidation of those proceedings with these
proceedings was listed for hearing before Associate
Justice Evans (as he now is) in this Honourable Court
on 1 December 2008.

5. Mr Johnson did not attend Court on the return of that

Summons on 1 December 2008:
 - 12 -

(a) Because, for reasons of financial shortage, and

also lack of time and other resources, Mr
Johnson had not been able to serve the
Defence and Counterclaim or the Summons in
those proceedings on any of the parties to
those proceedings (including the parties to
these proceedings); and

(b) Because, Mr Johnson was concerned that, in

communicating with the plaintiff in those
proceedings, Mr Johnson would be exposed to
allegations that he had breached the orders in
these proceedings made by Mr Justice
Anthony Cavanough and Mr Justice Hartley
Hansen on 20 June 2008 and 14 July 2008
that not only evicted Mr Johnson from
Dorrington Street, but also prohibited him from
all communication with the mortgagee for that
property (the plaintiff in those proceedings);

6. Mr Johnson had not been able, despite all of this

efforts to obtain the services of independent legal
representation (ie solicitors other than Sutton Lawyers)
to representing him in these proceedings, and this was
largely as a financial consequence of damages and
losses caused to Mr Johnson by the Respondent’s
issue and maintenance of these proceedings,
including damages and losses due to caveats filed by
Ms Cressy and Harwood Andrews against Mr
Johnson’s Properties.

(d) The Learned Trial Judge should have found that the actions of Mr Turnbull, Mr
Devries and Berry Family Law, in allowing these proceedings to be set down for
trial on 2 December 2008 for an estimated duration of 2 days, in all of the
circumstances described in paragraph (c) above:

(i) Was an abuse by Mr Devries and his instructors and by Ms Cressy

of the proper processes of this Honourable Court;

(ii) Was part of a series of wild, unsubstantiated and grossly

 - 13 -

unprofessional attacks on Mr Johnson, a barrister and solicitor of this

Honourable Court of some 18 plus years good standing;

(iii) Was a calculated attempt by Mr Devries and his instructors to

intimidate and to slander Mr Johnson, from the perceived privilege
and safety of the bar table;

(iv) Was professional misconduct by Mr Devries and his instructors that

was and ought to be actioned as such by the Court under relevant
statutory provisions, including Chapter 4 of the Legal Practice Act,
and under the inherent jurisdiction of this Honourable Court;

Federal Magistrates Court Proceedings No. MLC 10308 of 2007 – Interim Orders dated 10
September 2007 and Final Orders dated 6 February 2008

4. (a) The Learned Trial Judge erred in fact and in law in failing to make any rulings
and failing to exercise any jurisdiction in respect of Mr Johnson’s application that
the Court take due recognition of certain Federal Magistrates Court Orders
affecting him, being Interim Orders dated 10 September 2008 and reissued as
Final Orders (with no obvious amendments) on 6 February 2000 (the ‘FMC
Orders’).

(b) The Learned Trial Judge should have ruled that those FMC Orders, made in the
circumstances described by Sutton Lawyers in submissions:

(i) Constituted a 100% contempt of the parliament of the

Commonwealth of Australia and of the common laws of the
Commonwealth of Australia (by the FMC Orders’ blatant and biased,
pro parte contravention of section 121 of the Family Law Act);

(ii) Constituted a 100% contempt of the parliament of the State of

Victoria (by their blatant and biased, pro parte contravention of the
Evidence Act 2006 and the Supreme Court Act 19##);

(iii) Constituted a 100% contempt of this Honourable Court and of the

common law of the State of Victoria (by the FMC Orders’ blatant and
biased, pro parte contravention of the rules, practices and
procedures relating to the presentation (and the exclusion)

(iv) Constituted a serious attempt by Mr Devries, and his instructors and

by Ms Cressy, as their client, a serious attempt to pervert the course
of justice in and from the outset of these proceedings.
 - 14 -

(c) The Learned Trial Judge erred in fact and in law in failing to investigate and
failing to take actions to protect Mr Johnson by addressing the concerns Sutton
Lawyers expressed in submission on behalf of Mr Johnson that the FMC Orders
were causing Mr Johnson real and serious hardship and strain, substantially
adversely impacting on the presentation of evidence and submissions in these
proceedings (even including in responding to Ms Cressy’s case).

(d) The Learned Trial Judge should have held that:

(i) Mr Devries and his instructors were directly and primarily responsible
for these contempts of the parliament of the Commonwealth of
Australia, these contempts of the parliament of the State of Victoria
and the contempts of this Honourable Court manifested by the FMC
Orders, and that these contempts were each and all of them:

(1) abuses by Mr Devries and his instructors and by Ms Cressy of

the proper processes of this Honourable Court;

(2) further examples or steps in a scheme that Federal Magistrate

O’Dwyer had at a hearing in those proceedings in about July
2008 described as “… an invitation [by Mr Devries etc] to [His
Honour] to participate in a scheme already under way [by Mr
Devries, his instructors and their client Ms Cressy] to undermine
Mr Johnson’s position in [those and therefore] these proceedings”
’and as such, yet another wild, unsubstantiated and grossly
unprofessional attack on Mr Johnson, who is:

i. a barrister and solicitor of this Honourable Court of some

18 plus years good standing;

ii. “… at the least, is a very intelligent person. He has a quick

and incisive intellect. In fact, for a person who professes
never to have practised in Court before, he displayed a
number of skills of a natural advocate. “ (paragraph 7 of
Judgement in Cressy v Johnson & Ors (No.3).

(3) Another example of calculated attempts by Mr Devries and his

instructors to intimidate Mr Johnson and interfere with the ability
of Sutton Lawyers to present Mr Johnson’s case, and for this
Honourable Court to be able to deal with the issues in these
 - 15 -

proceedings fairly and justly and according to their merits.

(4) further professional misconduct by Mr Devries and his instructors

that was and ought to be actioned as such by the Court under
relevant statutory provisions, including section # of the Legal
Practice Act 200#, and under the inherent jurisdiction of this
Honourable Court;

(e) The Learned Trial Judge should have ruled that these proceedings be adjourned
pending:

(i) Applications by Mr Johnson in the Federal Magistrates Court to have the

FMC Orders annulled; and/or (additionally or alternatively)

(ii) Consolidation of these proceedings and Proceedings No. 9263 of 2008.

Lack of Skilled Legal Representation for the Appellant

5. (a) The Learned Trial Judge erred in fact and in law in finding that the Appellant was
not substantially disadvantaged in presenting his case because of his and
Sutton Lawyers lack of prior familiarity or experience with the advocacy or
conduct of litigious proceedings, including findings:

(i) “That In assessing the plaintiff’s evidence, it is necessary for me to take

into account the fact that she was not cross-examined by an experienced
advocate. Nevertheless, as I have already remarked, the defendant is
not altogether deficient in that respect…” (paragraph 105 of Judgement
in Cressy v Johnson & Ors (No.3);

(ii) “… [The Defendant] told me, on a number of occasions, that he had not
conducted any litigation on behalf of his clients. Nevertheless, as I
frequently observed during the trial, the defendant displayed a number of
skills as an advocate. He told me that he had read about the principle in
Browne v Dunn …, and, in conformity with that principle, he put to the
plaintiff, in cross-examination, a number of matters about which he
subsequently gave evidence. He exhibited a ready appreciation of the
rule against the admission of hearsay evidence. He adduced evidence
from a number of witnesses without, generally, asking them leading
questions. When the principle in Jones v Dunkel … was drawn to his
attention, and I explained it to him, he readily understood it. I gained the
impression that the defendant, at the least, is a very intelligent person.
He has a quick and incisive intellect. In fact, for a person who professes
 - 16 -

never to have practised in Court before, he displayed a number of skills

of a natural advocate.’ (paragraph 7 of Judgement in Cressy v Johnson &
Ors (No.3).

(b) Sutton Lawyers gave in submissions at least six cogent illustrations of how its
presentation of Mr Johnson’s evidence and submissions had been substantially
disadvantaged by his and its lack of prior familiarity or experience with advocacy
and the conduct of litigious proceedings, including:

(i) Sutton Lawyers were not aware until after Mr Johnson had taken to the
witness box on 5 December 2008 to give his evidence in chief, that when
the Learned Trial Judge referred to having “read the papers” the Learned
Trial Judge was referring solely to Ms Cressy’s (amended) Statement of
Claim and to Mr Johnson’s (amended) Defence and (original)
Counterclaim, with the result that Sutton Lawyers did not cross examine
Ms Cressy or important aspects of Mr Johnson’s defence and Mr
Johnson’s counterclaim:

(1) Thinking that the evidence contained in the parties Affidavits and
exhibits thereto was already included in the body of evidence before
the Learned Trial Judge; and

(2) Sutton Lawyers could save the Court’s time (and Mr Johnson’s
discomfort at having to question Ms Cressy in person) by simply
referring to the material in those Affidavits and exhibits thereto in
Sutton Lawyer’s closing submissions;

(ii) Sutton Lawyers did not appreciate the necessity, or even its failure, to
cross-examine Ms Cressy as to the extent of her substantial relationship
with Mr Cockram;

(iii) Sutton Lawyers was unable, due to lack of experience in countering the
‘shutting out’ tactics of Mr Devries, to bring satisfactorily into evidence
the written testimony and proper oral testimony in evidence in chief of Ms
Larissa Deak-Fabrikant regarding:

(1) her knowledge that Mr Johnson was not part of part of Ms Cressy’s
family unit and was not resident at Queen Street from June 2006
onwards;

(2) Her knowledge of the beating that Ms Cressy gave to her three
 - 17 -

children, and damage she caused to the premises Queen Street, on

the Saturday of the 2007 AFL Grand Final weekend;

(iii) Sutton Lawyers did not, due to lack of experience, elicit complete
evidence in chief from Ms Karen Briggs of MICM (Mr Johnson’s
managing agent for much of the period when he lived at 668 Bourke
Street Melbourne (Apartment 909 and then Apartment 2302), to the
effect that Mr Johnson and Ms Briggs would pass each other most
weekday mornings, in the basement carpark of the Apartment
building as Ms Briggs was arriving for work and Mr Johnson was
leaving for work at either his Primelife office or his Barwon Water
office;

(iv) Sutton Lawyers did not, due to lack of experience, elicit complete
evidence in chief from Ms Jennifer Locke, Senior Detective with
Purana Taskforce either:

(1) As to the duration and extent of Ms Cressy’s long-term

relationship with Mr Cockram; or

(2) To clarify Ms Locke’s mistaken impression that Mr Johnson and

Ms Cressy were, in late 2003 and early 2004 ‘a couple’, viz an
assumption Ms Locke made based on Mr Johnson escorting Ms
Cressy to the St Kilda Road Police Station on two or three
occasions to assist the police with their identification and
investigation of Mr Cockram; Ms Locke having never observed
either Mr Johnson or Ms Cressy together in any private or social
setting, or anywhere other than the St Kilda Road Police Station
(where she mostly interviewed Ms Cressy whilst Mr Johnson
‘remained outside’).

(c) Sutton Lawyers, on being informed by the Learned Trial Judge of the principle in
Jones v Dunkel, expressed shock that such a principle could be or could ever
have been ‘for hundreds of years’ found in any part of the common law of this
State of Victoria or other common law jurisdictions in Australia and in the former
British Commonwealth, as those principles as described to Sutton Lawyers
would seem a blatant violation, as against a defendant:

(i) of the common law rules against self-incrimination [as first articulated by
John Cooke formerly of Graies Inne, as Chief Magistrate of Ireland
during the 1630s and author of ‘A Vindication of the Laws and Professors
 - 18 -

of Law’ (1644, Graies Inne); and

(ii) of the common law rules, practices and procedures requiring the plaintiff
in civil proceedings to prove the plaintiff’s claim on the balance of
probabilities and there being no burden of proof on the defendant in civil
proceedings to disprove the plaintiff’s claims.

(d) The Learned Trial Judge should have ruled that these proceedings be adjourned
pending:

(i) The outcome of applications to be brought by Mr Johnson in the Federal

Magistrates Court to have the FMC Orders annulled; and/or (additionally
or alternatively)

(ii) Consolidation of these proceedings and Proceedings No. 9263 of 2008;

and/or (additionally or alternatively)

(iii) Appointment by Mr Johnson of independent legal representatives and

counsel (that is barristers and solicitors other than Sutton Lawyers) to
conduct these proceedings on behalf of Mr Johnson.

Lack of Credibility in the First Respondent’s case

Lack of Credibility in Ms Cressy’s evidence – her viva voce evidence

6. (a) The Learned Trial Judge erred in fact and in law in finding that “the evidence of
the plaintiff was cogent, and consistent, as to the circumstance that, during the
period from 1998 to 2007, she and the defendant did live together in a personal
relationship at the addresses described by her, and that the relationship was
based on mutual attraction and affection.” (paragraph 105 of Judgment in
Cressy v Johnson & Ors (No.3))

(b) The Learned Trial Judge should have found that Ms Cressy’s viva voce evidence
totally lacked all credibility:

(i) Including by reason of Ms Cressy’s bizarre story (rejected by the

Learned Trial Judge) claiming to have met Mr Johnson in late winter
2008, that is about August 2008, whilst sun baking on a beach in
Torquay only some four or so weeks after giving birth at 19 years of
age, to the second of her two boys (both by different men) and after
giving Mr Johnson her phone number, a week later they were living
as de factos at a property she rented from the Salvation Army on
charitable terms, and notwithstanding that she claims for several
 - 19 -

months thereafter (purportedly of domestic bliss) Mr Johnson did not

know Ms Cressy’s first name;

(ii) Including by reason of Ms Cressy’s bizarre stories (rejected by the

Learned Trial Judge) of having given cash to Mr Johnson to pay part
of the deposit monies for all of Mr Johnson’s Properties;

(iii) Including by reason of Ms Cressy’s battering of her children and

property damage caused to the premises Queen Street Altona on the
Saturday of the 2007 AFL Grand Final weekend;

(iv) Including by reason of Ms Cressy’s aggravated burglary (as found by

the Learned Trial Judge) of Mr Johnson and her theft of and trespass
to Mr Johnson’s goods, including the documents subpoenaed from
the Victoria Police by Mr Hanlon into, the documents Ms Cressy did
not hand in to the Victoria Police, that were attached to Ms Cressy’s
Affidavit of Documents of about 28 March 2008, and the documents
and other goods forming part of the loot from that aggravated
burglary that Mr Johnson recovered on 26 December 2008 after they
were abandoned by Ms Cressy at the Dorrington Street premises;

(v) Including by reason of Ms Cressy’s own bizarre comments and her

own bizarre behaviour as described in her own handwriting in Ms
Cressy’s Semi-Autobiography, and in Ms Cressy’s Diaries

(vi) Including by reason of the bizarre allegations made by Ms Cressy

against Mr Johnson (under the protection of qualified privilege and
including through the agency of others including Mr Hanlon, Mr
Turnbull, Mr Ingleby, Mr Devries and Mr List (a psychologist) to the
effect of alleging that Mr Johnson is a drunken violent, drug taking
man, and an incestuous pedophile and has been since his teens
(being things that the Learned Trial Judge held that he did not believe
were true of Mr Johnson);

(vii) Including the wild and unsubstantiated and bizarre allegations by Ms

Cressy and by Mr Devries (allegations that the Learned Trial Judge
rejected, at paragraph that Mr Johnson committed a burglary of the
Queen Street premises when Ms Cressy was living there in August or
September 2007 and stole from Ms Cressy, inter alia:

(1) A birth certificate issued to Mr Johnson by the Registrar of Births

 - 20 -

Deaths and Marriages for the child Illyana, in June of 2007 on a

day when Ms Cressy was in fact, as evidenced by Ms Cressy’s
Diaries, somewhere in China;

(2) Bank Statements, Tax Returns, Tradesman Receipts and other

documents (the precise list of documents growing exponentially
the later in time that Ms Cressy or Mr Devries made these
allegations against Mr Johnson).

(viii) And including by reason of the other matters going to the lack of
credibility of Ms Cressy’s viva voce evidence or other evidence
presented by Mr Devries and his instructors as part of her case in
these proceedings.

(c) The Learned Trial Judge should have found that Ms Cressy knowingly
committed deliberate perjury in most aspects of her evidence of her alleged
domestic relationship with Mr Johnson.

(d) The Learned Trial Judge should have found Ms Cressy guilty of contempt of this
Honourable Court on account of her deliberately giving perjured evidence
intended to fool the Learned Trial Judge into findings that:

(1) Mr Johnson and Ms Cressy formed part of a family unit, and

therefore a bona fide domestic relationship (within the meaning of s
285 of the Property Law Act existed between them at any time during
the period September 1998 to April or May 2007 (or at any other
time);

(2) Ms Cressy made direct financial contributions to Mr Johnson for the

acquisition, maintenance and improvement of Mr Johnson’s
Properties (the Learned Trial Judge found that Ms Cressy did not
make any such contributions).

Lack of Credibility in Ms Cressy’s evidence - lack of documentary evidence

7. (a) The Learned Trial Judge erred in fact and in law in finding that “… it would be
inappropriate to draw an inference in accordance with Jones v Dunkel against
the plaintiff by reason of her failure to adduce any such documentation. In the
end, however, I am left with a paucity of documentary evidence produced by the
plaintiff as to her income, her financial sources, and as to any expenses which
she alleges that she incurred in respect of the properties acquired by the
defendant.’ (paragraph 68 of Judgement in Cressy v Johnson & ors (No.3).
 - 21 -

(b) The Learned Trial Judge should have dismissed the plaintiff’s claim and found in
favour of Mr Johnson on the grounds that she had failed to adduce sufficient
evidence of a claim to require Mr Johnson to have to respond to it.

(c) The Learned Trial Judge should have made the findings against Ms Cressy
described in paragraphs (6)(b), (c) and (d) of this Notice of Appeal.

Lack of Credibility in Ms Cressy’s evidence - lack of witnesses and Jones v

Dunkel burden of proof

8. (a) The Learned Trial Judge erred in fact and in law in failing to finding adverse
inferences against Ms Cressy in accordance with Jones v Dunkel… against the
plaintiff by reason of her failure to adduce any witnesses to testify as to any
socializing of Mr Johnson and Ms Cressy (with or without her children) as a
family unit.

(b) The Learned Trial Judge erred in fact and in law in failing to finding adverse
inferences against Ms Cressy in accordance with Jones v Dunkel… against the
plaintiff by reason of her failure to adduce any documents such as birthday
cards, valentines cards (other than a couple of pre-February 2000 valentine
cards), Christmas cards, video or other materials as evidence of any socializing
of Mr Johnson and Ms Cressy (with or without her children) as a family unit.

(c) The Learned Trial Judge should have made the findings against Ms Cressy
described in paragraph 7 of this Notice of Appeal.

Lack of Credibility in Ms Cressy’s evidence – lack of corroboration and low

credibility of Ms Cressy Senior

9.. (a) The Learned Trial Judge erred in fact and in law in finding that: “… the evidence

of the plaintiff is supported by the evidence of her mother, Mrs Gail

Cressy . Her evidence was that from 1998 until 2007, she had regular contact
with the plaintiff. During all of that time the plaintiff and the defendant lived
together and were, to Mrs Cressy ’s perception, a couple. During the
whole of that period, the defendant never suggested to Mrs Cressy that
he and the plaintiff were not living together. I considered Mrs Gail Cressy
to be a credible and reliable witness. Indeed, the defendant did not seriously
challenge her evidence in cross-examination, although he did, nevertheless,
seek to attack her credit in final address.

(b) The Learned Trial Judge should have found that Ms Cressy Senior’s viva voce
 - 22 -

testimony had little or no credibility.

(c) The Learned Trial Judge should have held that Sutton Lawyers successfully
exposed Ms Cressy Senior’s lack of bona fides and lack of credibility as a
witness, in a sympathetic way having regard to Ms Cressy Senior’s admitted
mental health and alcohol and substance abuse problems (being problems that
Ms Cressy Senior admitted under cross examination are afflictions that ms
Cressy shares also).

(d) The Learned Trial Judge should have found that Ms Cressy Senior’s viva voce
evidence was actuated by malice against Mr Johnson (including for having been
evicted by Mr Johnson from the Lisa Court premises in October 2007 after
approximately 4 years of tenancy for substantial and sustained rental defaults for
much of that period).

Lack of Credibility in Ms Cressy’s evidence - criminal activities

10. (a) The Learned Trial Judge erred in fact and in law in failing to make adverse
implications against Ms Cressy’s credibility according to the principle in Jones v
Dunkel having regard to his finding that Ms Cressy burgled Mr Johnson on 16
November 2007 and unlawfully removed substantial records and goods of Mr
Johnson’s;

(b) The Learned Trial Judge erred in fact and in law in failing to make adverse
implications against Ms Cressy’s credibility according to the principle in Jones v
Dunkel having regard to his acceptance that Ms Cressy, in connection with her
burglary of Mr Johnson on 16 November 2007 deleted substantial numbers of
photographs from Mr Johnson’s two mobile phones, which Mr Johnson intended
to use as evidence in these proceedings and other proceedings including those
in the Federal Magistrates Court (Proceedings MLC 10308 of 2007) and in the in
proceedings in the State Magistrates Court against Ms Cressy under the
Magistrates Court (Domestic Violence) Act State Magistrates Court. ;

(c) The Learned Trial Judge should have made the findings listed in paragraph 7 of
this Notice of Appeal.

Lack of Credibility in Ms Cressy’s evidence – Ms Cressy’s Semi-

Autobiography

11. (a) The Learned Trial Judge erred in fact and in law in failing to make adverse
implications against Ms Cressy’s credibility according to the principle in Jones v
Dunkel having regard to his finding that Ms Cressy burgled Mr Johnson on 16
November 2007 and unlawfully removed substantial records and goods of Mr
 - 23 -

Johnson’s;

(b) The Learned Trial Judge erred in fact and in law in failing to make adverse
implications against Ms Cressy’s credibility according to the principle in Jones v
Dunkel having regard to his acceptance that Ms Cressy, in connection with her
burglary of Mr Johnson on 16 November 2007 deleted substantial numbers of
photographs from Mr Johnson’s two mobile phones, which Mr Johnson intended
to use as evidence in these proceedings and other proceedings including those
in the Federal Magistrates Court (Proceedings MLC 10308 of 2007) and in the in
proceedings in the State Magistrates Court against Ms Cressy under the
Magistrates Court (Domestic Violence) Act State Magistrates Court. ;

(c) The Learned Trial Judge should have made the findings listed in paragraph 7 of
this Notice of Appeal.

Lack of Credibility in Ms Cressy’s evidence – Ms Cressy’s modus operandi –

older married men

12. (a) The Learned Trial Judge erred in fact and in law in failing to make adverse
implications against Ms Cressy’s credibility having regard to the pattern of
behaviours of Ms Cressy, her modus operandi, as demonstrated by the evidence
of her relationships with Mr Johnson, Mr Cockram, Mr Marc and Mr Zac, and
others such as the ‘George’ described by Ms Cressy in Ms Cressy’s Semi-
Autobiography:

(i) of attaching herself sexually and romantically with men of significant

wealth and income, typically married men some 15 or 20 years her
senior; and

(ii) of extracting substantial money, gifts, travel and other valuables; and

(iii) typically (certainly at least in the cases of “George”, Mr Johnson and Mr

Cockram, and probably in more or all cases), finding these men initially
as clients at the one or more brothels or other prostitution service outlets
where Ms Cressy is then working.

(b) The Learned Trial Judge should have made the findings listed in paragraph 7 of
this Notice of Appeal.

Lack of Credibility in Ms Cressy’s case – mal-conduct of her case by the

Second Respondent, the Third Respondent, Mr Turnbull and Mr Devries

13. (a) The Learned Trial Judge erred in fact and in law in failing to make adverse
implications against Ms Cressy’s credibility having regard to the manner in which
 - 24 -

Mr Devries and his instructors, and before them Mr Ingleby and his instructors,
have conducted these proceedings and Ms Cressy’s case:

(i) Including without limitation the matters complained of by Mr Johnson in

his Affidavit and substantial exhibits of 11 July 2008 in these
proceedings;

(ii) Including without limitation the matters described by Mr Johnson in the

first 13 paragraphs of this Notice of Appeal;

(iii) Including without limitation the matters complained of by Sutton Lawyers

in closing submissions on 11 and 13 February 2009 and those articulated
again and anew in subsequent paragraphs of this Notice of Appeal.

(b) The Learned Trial Judge should have made the findings listed in paragraph 7 of
this Notice of Appeal.

Credibility in the Appellant’s case

Credibility in Mr Johnson’s evidence – his viva voce evidence

14. (a) The Learned Trial Judge erred in fact and in law in finding (starting at paragraph
123 of the Judgement in Cressy v Johnson & Ors (No.3) that:

“Finally, it is necessary to refer, in a little detail, to the affidavit sworn by the

defendant on 13 September 2007 in the Federal Magistrates’ Court. As I have
already stated, in that affidavit, the defendant swore that he and the plaintiff had
lived or partly lived together from December 1998 to January 1999 and from
May 1999 to June 2007. I have already quoted paragraph 6 of the affidavit in
which the defendant referred to the relationship which he had with the plaintiff.
In cross-examination, the defendant stated that he had agonised over the
affidavit, and that he had discussed the contents of the paragraphs, to which I
have just referred, with his solicitor on a number of occasions. He stated that he
could accept that what he said in those paragraphs was sufficiently accurate,
because he interpreted those words as meaning something different from living
together in a domestic relationship.[16] In re-examination, the defendant sought
to elaborate his explanation for the affidavit. In essence, he stated that he was
guided by the advice of his solicitor in the drafting of the affidavit. He then gave
the following explanation which is, in my view, illuminating as to the attitude
taken by the defendant to giving evidence on oath. In answers to some
questions from me, he agreed that he knew the contents of the affidavit before
 - 25 -

he swore it, and that if it was untruthful, he would not have sworn it. I asked him
whether, therefore, I was entitled to regard the admissions made by him in the
affidavit as truthful admissions on oath. To that question the defendant
responded:

“... Yes Your Honour. The – the tide mark fluctuates up and down according to
high tide, low tide. It’s still the tide mark. ... Now the truth can be told um within
a band of descriptions. You could put the truth at its strongest or you could put it
the truth at its weakest. It remains the truth Your Honour. ... I say there’s not the
material – there is not such a material difference between what was
encapsulated in those paragraphs ... and also in the true situation – those
paragraphs of – those affidavit of mine - ... I’m saying they’re consistent. There
is a discrepancy, but it’s like the discrepancy between the high tide and the low
tide, it’s still the tide, it’s still the truth Your Honour.”[17]

124 That explanation given by the defendant moved me to ask the defendant
whether he regarded that there are “shades of truth” when he stated something
on oath. He denied that that was his attitude. He went on to explain that there is
“no such thing as absolute truth” and that what he said in the affidavit “falls
within the boundaries of truth”.

125 Two points are relevant from the foregoing part of the defendant’s
evidence. First, it contains an acknowledgement (albeit reluctant and equivocal)
of the truth of the contents of the defendant’s affidavit. In that affidavit, the
defendant admitted that, in the period claimed by the plaintiff (late 1998 to about
Easter 2007), he and the plaintiff had had a relationship in which they lived
together on a domestic basis. Secondly, and revealingly, it discloses an
ambivalent and flexible attitude by the defendant to telling the whole truth on
oath. The defendant’s attempt, in re-examination, to explain away the contents
of the affidavit sworn by him, fifteen months earlier, in the Federal Magistrates’
Court, was, of itself, a telling insight into the credibility and reliability of the
defendant as a witness. In the plainest terms, it is clear that the defendant does
not regard himself bound, under oath, to tell the truth pure and simple. Rather,
as I detected in other parts of his evidence, he considered himself entitled to
stretch and obscure the truth as and when (to his perception) it suited his case
to do so.

126 The defendant’s “flexible” attitude to the truth was, in my view, an attitude
which I had earlier discerned, in the defendant’s approach to explaining a
number of the events which occurred in the course of his relationship with the
 - 26 -

plaintiff. For example, the defendant sought to explain his generosity to the
plaintiff, and to explain why he set up the Gallery of Artemis, by claiming that he
had adopted the role of a “Henry Higgins” to an “Eliza Doolittle” in seeking to
reform the plaintiff for her own sake. He cast himself in the role of an altruistic
yet ever loving father of the plaintiff’s three children. His grandiose descriptions
of himself were, I consider, transparent attempts by him to avoid the real truth of
the matter, namely, that for almost one decade he did share a romantic
relationship with the plaintiff.

127 In saying that, I do not downplay, nor demean, the fact that the defendant,
both during and after his relationship with the plaintiff, has been a good and
caring father to all three children of the plaintiff. In fact, it is to the defendant’s
credit that he has acted in that way. However, in my view, he has simply tried to
recast his role in the relationship, in order to evade a number of facts which
strongly establish the type of relationship contended for on behalf of the
plaintiff.”

(b) Mr Johnson made the above, complicated and flawed analogy with the tides and
different perceptions of the truth, having regard to the surrounding
circumstances and environmental constraints of the person witnessing or
describing it, by way of legal submission as the voice of Sutton Lawyers, his
defence advocates in these proceedings and not in his personal capacity as the
defendant in these proceedings, and did so seeking to describe what
philosophers such as John Rawlinson Saul describe as the gap between ‘the
truth’ (what actually is, to an independent, accurate observer) and ‘the provable
truth’ (what can be proved given environmental and evidence gathering
constraints and of course the straining effect of various resources and rules of
evidence and procedure).

(c) Sutton Lawyers promptly admitted in subsequent submissions the flawed nature
of that analogy to the tides, and therefore the Learned Trial Judge should have
attached no weight or relevance to these submissions described in paragraphs
123 to 127 of Judgement in Cressy v Johnson (No.3).

(d) Mr Johnson gave evidence in chief and Sutton Johnson gave legal submissions
in closing to the effect that:

(i) the Learned Trial Judge should not place undue weight on the contents
of Mr Johnson’s Affidavit as the contents had to be considered in the
context of the family law courts jurisdiction, the fact that it was drafted for
Mr Johnson by his then solicitor in respect of those proceedings, Ms
 - 27 -

Leanne Kelly of Kelly & Associated, in circumstances that Mr Johnson

gave evidence were strongly suggestive of negligence and incompetence
on the part of Ms Kelly, and circumstances of considerable duress on Mr
Johnson (Ms Cressy having ceased all contact between the children and
himself and the children and their school who also had had no
knowledge of the children’s whereabouts or welfares for more than a
week.

(ii) Any expression of the truth depends in quality on the available time, the
medium and the volume of space (particularly where expressed in
writing) in which to convey the truth, and the circumstances in which that
Affidavit was prepared at haste for family law court proceedings, quite
apart from any misplaced reliance by Mr Johnson on the purported skill
and expertise of Ms Kelly as a practitioner in family law matters, was far
from conducive to a carefully detailed expression of the truth of Mr
Johnson’s relationship with Ms Cressy.

Credibility in Ms Johnson’s evidence - substantial documentary evidence

15. (d) The Learned Trial Judge erred in fact and in law in finding that: “In fact, the only
documents tendered in relation to the purchase and financing of the various
properties were introduced by the defendant, largely through the witness Mr
Ioannou.” (paragraph 89 of the Judgement in Cressy v Johnson & Ors (No.3))

(e) The Applicant delivered substantial documentary evidence which he supported

with viva voce evidence from himself and several other witnesses, as to all key
aspects of his defence to Ms Cressy’s claims,namely:

(i) The parallel existences of Ms Cressy’s household and Mr Johnson’s

household for all of the period prior to May 2001 and since July 2003
(being periods that Ms Cressy claimed that they were a common
family unit);

(ii) Mr Johnson’s generous (direct financial) contributions to Ms Cressy’s

household, including many education expenses and many
employment opportunities for Ms Cressy in several of Mr Johnson’s
businesses over the years;

(iii) Indeed, Mr Johnson’s generous (direct financial) contributions to Ms

Cressy Senior’s household including many education expenses and
 - 28 -

many employment opportunities for Ms Cressy in several of Mr

Johnson’s businesses over the years;

(iv) And indeed Mr Johnson’s generous contributions to the households

of two other women, namely:

(1) Mrs Johnson, and

(2) Ms Erasmus (Mr Johnson’s non-live in girlfriend from early 2004 up

until late 2006 or early 2007);

(v) The lack of contributions by Ms Cressy to any of Mr Johnson’s

household or household expenses or to Mr Johnson’s Properties;
and

(vi) Therefore, indirectly, if not relevantly, Mr Johnson’s full funding of all

contributions towards Mr Johnson’s household and household
expenses and Mr Johnson’s Properties.

Credibility in Mr Johnson’s evidence – no missing witnesses and Jones v

Dunkel burden of proof

16. (f) The Learned Trial Judge erred in fact and in law in finding that:

(i) #

(g) The Learned Trial Judge should have found ## no credibility.

(h) The Learned Trial Judge should have found ## deliberate perjury

(i) The Learned Trial Judge should have found ## contempt

Credibility in Ms Cressy’s evidence – corroboration and low credibility of Ms

Cressy Senior

17. (e) The Learned Trial Judge erred in fact and in law in finding that:

Credibility in Mr Johnson’s evidence – no criminal activities

18. (c) The Learned Trial Judge erred in fact and in law in finding that:
 - 29 -

Credibility in Mr Johnson’s evidence – Mr Johnson’s Credentials, the

Clarebrough Report and the Love Report

19. (d) The Learned Trial Judge erred in fact and in law in failing to find substantial
credibility in Mr Johnson’s character having regard to the findings and reports
contained in the Clarebrough Report and in the Love Report

(e) The Learned Trial Judge should have found that the relationship between Mr
Johnson and Ms Cressy for the period from July 2003 (or alternatvely, from and
even prior to December 1999) up to and including the commencement of the trial
was, seen in its most favourable light (or highest, flow tide level) a relationship of
the same calibre (namely co-parenting support arrangement between two non-
live together parents) as the relationship that existed between Mr Johnson and
Mrs Johnson from late 2008 up to and including the date of commencement of
trial.

(f) The Learned Trial Judge should have found that the relationship between Mr
Johnson and Ms Cressy for the period from July 2003 up to and including the
commencement of the trial in these proceedings was, seen in its least
favourable light (or lowest ebb tide level) a relationship involving behaviour of by
Ms Cressy of the kind describes in sections of the Crimes Act 1958 such as
sections 84 and 85, section 72 and 73 and in common law offences such as
assault and battery and burglary, and not by any stretch of any reasonably sane
person’s imagination a relationship of the kind described in section 285 of the
Property Law Act.

Credibility in Mr Johnson’s evidence – serial monogamy

20. (a) The Learned Trial Judge erred in fact and in law in failing to find positive
inferences about Mr Johnson’s credibility and character having regard to Mr
Johnson’s evidence of his serial monogamy nature in his romantic relationships
prior to and subsequent to his 1999 romance of sorts with Ms Cressy.

Credibility in Mr Johnson’s case – proper conduct of his case

 - 30 -

21. (a) The Learned Trial Judge erred in fact and in law in failing to find positive
inferences about Mr Johnson’s credibility and character having regard to his,
and subsequently Sutton Lawyer’s, conduct of these proceedings:

(i) Including ##

(b) The Learned Trial Judge should have found ##

Credibility in Mr Johnson’s case – Mr Devries improper use of Sutton Lawyers

employment letter

22. (a) The Learned Trial Judge erred in fact and in law in his finding regarding #

(b) The Learned Trial Judge should have found #

Credibility in Mr Johnson’s case – Mr Devries improper use of FMC Affidavit

No.1

23. (a) The Learned Trial Judge erred in fact and in law in his finding regarding #

(b) The Learned Trial Judge should have found #

Credibility in Mr Johnson’s case – Mr Devries improper use of mail redirection

instructions

24. (a) The Learned Trial Judge erred in fact and in law in his finding regarding #

(b) The Learned Trial Judge should have found #

Credibility in Mr Johnson’s case – Mr Devries improper use of Mr Johnson’s

expired drivers licence

25. (a) The Learned Trial Judge erred in fact and in law in his finding regarding #
 - 31 -

(b) The Learned Trial Judge should have found #The Learned Trial Judge erred in
fact and in law in finding that:

Credibility in Mr Johnson’s case – Mr Devries improper use of, and the

Learned Trial Judge’s erroneous construction of Mr Johnson’s taxation and
financial documentation

26. (a) The Learned Trial Judge erred in fact and in law in his finding regarding #

(b) The Learned Trial Judge should have found #The Learned Trial Judge erred in
fact and in law in finding that

Credibility in Mr Johnson’s case – the Learned Trial Judge’s erroneous

construction of Mr Johnson’s tenancy application for 45 Nicholson Street,
South Yarra

27. (a) The Learned Trial Judge erred in fact and in law in his finding regarding #

(b) The Learned Trial Judge should have found #The Learned Trial Judge erred in
fact and in law in finding that

Application for Amendment of Respondent’s Statement of Claim

28. (a) The Learned Trial Judge erred in fact and in law in holding that “on the second
day of the proceeding” Mr Johnson objected to Ms Cressy’s application to
amend her statement of claim.

(b) The Learned Trial Judge should have held that:

(i) Sutton Lawyers, representing Mr Johnson merely and clearly

expressed the query, given his and its lack of knowledge or expertise
in litigation proceedings, the legality and the justice of Ms Cressy
making that application at that stage in the course of the proceeding;
and

(ii) Sutton Lawyers merely and clearly expressed the view that, unless
the Learned Trial Judge thought that the application on behalf of Ms
 - 32 -

Cressy was unjustly or unlawfully made at that stage in the course of

the proceeding, Sutton Lawyers and Mr Johnson’s expressed view
was that the Learned Trial Judge might simply allow the application
rather than waste any of the Court’s time on considering it, having
regard to Mr Johnson’s expressed desire that the Learned Trial
Judge determine the proceeding and give “judgment and justice
before Christmas” if there was any possibility of that happening.

Part IX (Section 285) of the Property Law Act 1958

Identification and Valuation of Contributions to household expenses and as

homemaker and parent

29. (a) The Learned Trial Judge erred in fact and in law in holding that:

(i) “…for the purposes of s 285(1) of the Property Law Act, that the
contributions of the plaintiff and the defendant were equal…”
(paragraph 170 of Judgement in Cressy v Johnson & Ors (No.3);

(ii) “…the plaintiff has assumed principal responsibility for the care of the
children, and, during the period of the relationship, she contributed
substantially to the day to day expenses of the household…”
(paragraph 170 of Judgement in Cressy v Johnson & Ors (No.3);

(iii) “… it would be inappropriate to draw an inference in accordance with

Jones v Dunkel[9] against the plaintiff by reason of her failure to
adduce any such documentation … as to her income, her financial
sources, and as to any expenses which she alleges that she incurred
in respect of the properties acquired by the defendant…” (paragraph
68 of Judgement in Cressy v Johnson & Ors (No.3).

(iv) “… [The Appellant] was paying $2,200 per month to his wife, and was
also paying credit cards, employees’ wages and motor vehicle
expenses. In cross-examination, he agreed [sic] that his monthly
commitments in respect of the payment of the mortgage instalments,
payment of rent, and payments to his wife, totalled $25,000 to
$30,000. In light of the declared income for the five years preceding
June 2005, it is difficult to see how the defendant could have made a
significant contribution to the financial support of the plaintiff and her
children at the same time. I acknowledge that the defendant seems
to have been somewhat deft in juggling his financial liabilities, and in
keeping his financial ship afloat, notwithstanding the heavy financial
 - 33 -

burdens he was loading on to it. Nevertheless, the stark fact remains

that, given his heavy commitments, he has not satisfied me that he
had sufficient income to make the payments to the plaintiff and her
children which he claims to have made…” (paragraph 150 of
Judgement in Cressy v Johnson & Ors (No.3).

(b) The Learned Trial Judge should have held that the Respondent’s claims failed
because of her failure to demonstrate having made any “contributions” for the
purposes of s 285(1) of the Property Law Act.

30. (a) The Learned Trial Judge erred in fact and in law in finding that this was was
‘apposite’ Akyon and Gellar.

(b) The Learned Trial Judge should have found that this case was fully
distinguishable from Akyon and Gellar:

(i) In Akyon#

(ii) In Gellar#

(iii) In this case:

(1) Modus operandi

(2) credibility issues

(3) two and probably all thee of Ms Cressy’s children not Mr

Johnson’s.

(c) The Learned Trial Judge should have held that the Respondent’s claims failed
because of her failure to demonstrate having made any “contributions” of value
for the purposes of s 285(1) of the Property Law Act.

31. (a) The Learned Trial Judge erred in fact and in law in holding that “…for the
purposes of s 285(1) of the Property Law Act, that the contributions of the
plaintiff and the defendant were equal…” (paragraph 170 of Judgement in
Cressy v Johnson & Ors (No.3);

(b) The Learned Trial Judge should have held that the value of any “contributions”
made by the First Respondent for the purposes of s 285(1) of the Property Law
Act are outweighed by the costs First Respondent’s negative contributions.

(c) The Learned Trial Judge should have held that the costs of the First
 - 34 -

Respondent’s negative contributions include:

(i) ## destruction of value of Queen Street – falling property value and

rising mortgage debt

(ii) ## destruction in value of Dorrington Street - ditto#

(iii) ## destruction in value of Inverloch Drive - ditto#

(iv) ## destruction of Mr Johnson’s earnings during 2007, and especially

after November 2007, and including all of 2008. No coincidence that
Mr Johnson first fell into mortgage arrears almost immediately as fall
out from Ms Cressy’s 16 November 2007 (as found by the Learned
Trial Judge) aggravated burglary by Ms Cressy.

(v) ## lack of parenting by Ms Cressy;

(vi) ## impact on parenting and wellbeing of children:

(1) Assault on kids;

(2) Deprivation of contact / contravention FMC Orders;

(3) Financial deprivation of kids – Mr Johnson’s loss of income all

2007, 2008 and into 2009, while proceedings are on foot over Mr
Johnson’s Properties, and claims by Ms C against him and his
properties.

30. (a) The Learned Trial Judge erred in fact and in law in holding that “…for the
purposes of s 285(1) of the Property Law Act, that the contributions of the
plaintiff and the defendant were equal…” (paragraph 170 of Judgement in
Cressy v Johnson & Ors (No.3);

(b) The Learned Trial Judge should have held that Mr Johnson and Ms Cressy did
not form a common family unit and did contribute jointly to a common household,
but in fact maintained separate households:

(i) ## at all times after meeting in September 1998 and prior to May
2001;

(ii) ## at all times since July destruction of value of Queen Street;

(c) In the absence of any credible evidence from Ms Cressy on which the Learned
Trial Judge might reasonably make a finding of fact or other judgment to the
 - 35 -

contrary, the Learned Trial Judge should have assumed that each of Mr Johnson
and Ms Cressy funded each 100% of all of the contributions to his and her own
respective households.

32. (a) The Learned Trial Judge erred in fact and in law in holding that “…for the
purposes of s 285(1) of the Property Law Act, that the contributions of the
plaintiff and the defendant were equal…” (paragraph 170 of Judgement in
Cressy v Johnson & Ors (No.3);

(b) The Learned Trial Judge should have held that any contributions that Ms Cressy
may have made to her own household and for the care and parenting of her own
three children, at least two and probably all three of whom are not Mr Johnson’s
biological or legally adopted offspring, could not constitute “contributions” for the
purposes of s 285(1) of the Property Law Act.

(c) The Learned Trial Judge should have held:

(g) having regard to submissions and evidence from Mr Johnson disputing that even
the third and youngest of Ms Cressy’s three children, the child Illyana, might be
Mr Johnson’s biological offspring, and Ms Cressy;

(i) having regard to submissions and evidence from Mr Johnson

disputing that even the third and youngest of Ms Cressy’s three
children, the child Illyana, might be Mr Johnson’s biological offspring,
and Ms Cressy :

(ii) having regard to Ms Cressy’s refusal ## at all times after meeting in

September 1998 and prior to May 2001;

(a) ## at all times since July destruction of value of Queen Street

33. (a) The Learned Trial Judge erred in fact and in law in holding that the value of
contributions made by Mr Johnson and Ms Cressy each amounted to $105,000:

(i) #

(ii) #

(b) The Learned Trial Judge should have held:

(i) # no evidence, can’t just 50/50;

(ii) # patent, given financial positions of Mr J and Ms C, fact that Mr J

was substantial contributor to Ms C’s household but not vice versa,
 - 36 -

that contribs (on bizarre finding Mr J and Ms C were a common

family unit) would be high % by Mr J and low % by Ms C;

(iii) # 50/50 means multiple counting contribs, given (1) Mr J has liability
for mortgages, and (2) in all probability evidence suggests that
mortgage liabilities exceed or are close to property values; and (3) Mr
J has other unsecured credit debt referable to bridging funding of his
mortgage liabilities;

(iv) # credibility issues #

(v) Even if a dom relatp bt Mr J and Ms C for any lengthy relevant period
to ground her claim under first limb of section 285 (and Mr J is
emphatic in denying that false reconstruction of Mr J’s relationship
history with Ms C) 2 or 3 out of 3 kids not his and Mr J ‘never there’
so no assistance to Mr J in freeing him to earn money to purchase Mr
Johnson’s Properties.

(vi) # no evidence – dismissed claim;

(vii) Or alternatively or additionally, adjourned or referred the matter for an

assessment of values, damages and costs.

No bona fide domestic relationship

34. (a) The Learned Trial Judge erred in fact and in law in holding that:

(i) ## domestic relationship existed 1998 to 2007, in effect, “…for the

purposes of s 285(1) of the Property Law Act, that the contributions of
the plaintiff and the defendant were equal…” (paragraph 170 of
Judgement in Cressy v Johnson & Ors (No.3);

(ii) ## refer Mr Johnson’s generosity in ex gratia funding of households

of Ms Cressy Senior, Mrs Johnson (above minimum amounts legally
required by law), and Ms Erasmus.

(iii) #

(b) The Learned Trial Judge should have held that the value of any “contributions”
made by the First Respondent for the purposes of s 285(1) of the Property Law
Act are outweighed by the costs First Respondent’s negative contributions.
 - 37 -

(c) The Learned Trial Judge in finding Ms Cressy’s evidence over Mr J’s:

(i) ## failed credibility assessment Ms C;

(ii) ## failed to consider gravity of finding of untruthfulness in Mr J’s

evidence (no different to any other adverse finding, eg financial
contributions, ‘dingo stealing evidence’) and wrongful reversal of
basic burdens of proof;

(iii) ## attached improper weight to Ms C and Ms CS viva voce:

(iv) ## attached undue weight to FMC Affidavit No.1.

(v) ## failed to attach appropriate weight to Ms Cressy’s Semi-

Autobiography and Ms Cressy’s Diaries.

(vi) ## failed to attach weight to Ms C’s other long-term love interests

during the period;

(vii) ## failed to attach weight to Ms C’s other commercial sexual activities

during all of part of this period;

(viii) Frequently refers to animosity and ‘bone of contention’ in Ms C’s

continuing prostitution against Mr J’s wishes (and financial relations
from Mr J to Ms C)

(ix) ## failed to attach weight to the clandestine nature of Ms C’s …

during that period.

(x) ## failed to attach weight to Mr J’s other romantic relationships during

that period - ## 5/12/8 playing devil’s advocate;

(xi) ## failed to attach weight to Mr J’s other charitable and

compassionate financial generosity (maybe ‘bizarre and unreal’ by
the standards of other middle aged men, especially middle aged or
older members of the Victorian bar and the Victorian judiciary, but not
so bizarre having regard to the philanthropic and social mores of Mr
J’s heros, including Charles Dickens, HG Wells, Edgar Allen Poe,
William Thackery, Mahatma Ghandi, Jean Paul Satre, all prime
movers in the legal emancipation of women:

(xii) ## Failed to attach proper weight to Mr J’s other, simultaneous

 - 38 -

charitable and compassionate financial generosities, towards

(1) Ms Cressy Senior; (relationship barely distinguishable for most of

the period from Mr Johnson’s relationship with Ms Cressy except
as to quantum)

(2) Mrs Johnson;

(3) Lise;

Refusal to believe the truth

35. (a) The Learned Trial Judge erred in fact and in law in holding that:

(i) ## recast ##

(ii) ## unbelievable; ## para 105, hectic etc, ## para 110 somewhat

bizarre and unreal.

(iii) Mr J unable to fund 100% his assets and all monies to Mrs J, Ms C
and Lise and Ms C Senior – but all of the reliable evidence before the
Learned Trial Judge was precisely corroborative of these facts.

(b) Mr J’s evidence in chief corroborated by docs discovered on 26 December 2008

(Semi-Autobiog) as well as Ms C Diaries put into evidence on 4 December 2008.

(c) Mr J’s evidence in chief corroborated by other testimony, not just ## but even Ms
Cressy Senior.

(d) The Learned Trial Judge should have held ##

Erroneous Findings of Time wasting

36. (a) The Learned Trial Judge erred in fact and in law in holding that:

(i) ## recast ##

(ii) ## unbelievable;

(iii) Mr J unable to fund 100% his assets and all monies to Mrs J, Ms C
and Lise and Ms C Senior – but all reliable evidence before the
Learned Trial Judge was precisely corroborative of these facts.
 - 39 -

(b) The Learned Trial Judge should have held ## that:

(i) ## lack of familiarity with advocacy and conduct of litigation;

(ii) FMC relevancy and common ground issues

(iii) FMC Orders

(iv) Conduct of proceedings by Second Respondent, Third Respondent,

Mr Turnbull, Mr Berry and Mr Devries;

(v) Conduct of Respondent outside of Court proceedings.

(vi) Misdirection by LSC;

(vii) Misdirection by Hawaii;

(c) #

Oppression of Mr Johnson

37. (a) ## The Learned Trial Judge erred in fact and in law in holding that:

(i) ## financial ##

(ii) ## misconduct

(iii) Collateral

(b) The Learned Trial Judge should have held ##

A measure of the Appellants’ damages and costs

38. (a) ## The Learned Trial Judge erred in fact and in law in holding that:

(iv) ## financial ##

(v) ## misconduct

(vi) Collateral

(b) The Learned Trial Judge should have held ## go off for adjourn, or resume
before a listing master.
 - 40 -

Quality of Mr Johnson’s Calderbank Offer

39. (a) ## Ms Cressy’s madness ##

(b) Relative merits of Calderbank offer (unencumbered property on trust for Illyana
cf $$cash for Ms Cressy to squander.

Counterclaim against Ms Cressy

38. (c) ## The Learned Trial Judge erred in fact and in law in holding that:

(vii) ## financial ##

(viii) ## misconduct

(ix) Collateral

(d) The Learned Trial Judge should have held ## go off for adjourn, or resume
before a listing master.

Erroneous Findings of Time wasting

35. (a) The Learned Trial Judge erred in fact and in law in his finding regarding #

(i) The Learned Trial Judge should have found #

(ii) ## unbelievable;

(iii) Mr J unable to fund 100% his assets and all monies to Mrs J, Ms C
and Lise and Ms C Senior – but all reliable evidence before the
Learned Trial Judge was precisely corroborative of these facts.

(d) The Learned Trial Judge should have held ## that:

(viii) ## lack of familiarity with advocacy and conduct of litigation;

(ix) FMC relevancy and common ground issues

(x) FMC Orders

(xi) Conduct of proceedings by Second Respondent, Third Respondent,

Mr Turnbull, Mr Berry and Mr Devries;

(xii) Conduct of Respondent outside of Court proceedings.

 - 41 -

(xiii) Misdirection by LSC;

(xiv) Misdirection by Hawaii;

(e) #

Counterclaim against Second Respondent and Third Respondent

Application by Appellant to Amend his Counterclaim against Second Respondent and

Third Respondent

Exclusion of Evidence, and Striking out of Subpoenas

Misuse and misclaim of Legal Professional Privilege

Practice and Procedure – Duties owed by barristers and solicitors to Court,

administration of justice and broader duties to pursuit of peace, welfare and good
government of peoples of Victoria

Upholding of Second Respondent and Third Respondent’s No Case to Answer

Application

Legal Services Commissioner – duties and directions to Appellant

Lack of legal accountability of Australian litigation barristers and solicitors

Misconduct by Mr Devries, Mr Turnbull and Mr Hanlon and Mr Ingleby

#
 - 42 -

Champetry

ORDERS SOUGHT

In place of the Judgment and Orders from which the Appeal is brought the Appellant
seeks the following Orders:

1. That the First Respondent’s claim as set out in her Amended Counterclaim of 4
December 2008 be dismissed.

2. That there be judgement in the proceedings for the Appellant against the First
Respondent.

3. That the First Respondent’s claim in this proceeding was vexatious and oppressive
of the Appellant, and constituted an abuse of process of this Honourable Court and
additionally, was commenced by the First Respondent, on the advice of the Second
Respondent and the Third Respondent and maintained by all three Respondents,
Berry Family Law, Mr Turnbull and Mr Devries for ulterior purposes and not for the
purposes of vindicating any legitimate right or claim that Ms Cressy might have in
respect of any of Mr Johnson’s Properties.

4. That the Registrar of Titles cancel and remove from the Register of Titles all caveats
notices and other claims lodged upon the titles to any of Mr Johnson’s Properties by
any of the Respondents, Berry Family Law, Mr Turnbull or Mr Devries.

5. That the Second Respondent, the Third Respondent, Berry Family Law, Mr Turnbull
and Mr Devries pay the Appellant’s costs of the proceeding including all reserved
costs on a solicitor-client full indemnity basis.

6. That the Appellant’s costs of the proceeding (not inclusive of the costs of this
appeal) be fixed at $440,000 (four hundred and forty thousand dollars) and that
each of the Second Respondent, the Third Respondent, Berry Family Law, Mr
Turnbull and Mr Devries pay to the Appellant $88,000 within 14 days of judgment in
this Appeal.

6A Alternatively, that the hearing of the Appellant’s legal costs suffered by reason of the
issue and maintenance of the First Respondent’s Statement of Claim by all of the
Respondents, Mr Turnbull, Berry Family Law and Mr Devries, take place before a
Judge of the trial division on a date to be fixed by the Listing Master.

7. That the hearing of the Appellant’s damages and losses suffered by reason of the
issue and maintenance of the First Respondent’s Statement of Claim by all of the
Respondents, Mr Turnbull, Berry Family Law and Mr Devries, take place before a
 - 43 -

Judge of the trial division on a date to be fixed by the Listing Master.

8. That the hearing of the Appellant’s allegations of professional misconduct, abuses of

process of this Honourable Court, breaches of duties to this Honourable Court and
contempts of this Honourable Court by the Second Respondent, by the Third
Respondent, by Mr Turnbull and by Mr Devries take place before a Judge of the trial
division and jury on a date to be fixed by the Listing Master.

9. That the hearing of the Appellant’s allegations of perjury by Ms Cressy and by Mr

Cockram, process and contempt of Court by the Second Respondent, by the Third
Respondent, by Mr Turnbull and by Mr Devries take place before a Judge of the trial
division and jury on a date to be fixed by the Listing Master.

10. That the hearing of the Appellant’s counterclaims against the First Respondent, the
Second Respondent, and the Third Respondent, be listed before a Listing Master for
orders for directions and take place before a Judge of the trial division and jury on a
date to be fixed by the Listing Master.

11. That all reports published by this Honourable Court of these proceedings, and the
Judgments and orders in these proceedings be revised to record that the Appellant
was represented before Mr Justice Kaye and at all times since April 2008 by Sutton
Lawyers Pty Ltd (an incorporated legal practice trading as “Sutton Lawyers”).

12. etc # to be completed

# DNA Testing of Illyana and Mr Johnson

# mental health assessment of Ms Cressy (and Ms Cressy Senior)

DATED: 11 March 2009

……………………………………………

SUTTON LAWYERS

Solicitors for the Respondent

 - 44 -

IN THE SUPREME COURT OF VICTORIA AT MELBOURNE

IN THE COURT OF APPEAL Court No. 9665/07

BETWEEN

HAROLD JAMES JOHNSON Appellant

and

PIPPIN PATRICIA CRESSY and others Respondents

and others according to the Schedule

SCHEDULE OF PARTIES

HAROLD JAMES JOHNSON Appellant

and

PIPPIN PATRICIA CRESSY First Respondent

and

DAVID WILLIAM HANLON Second Respondent

and

HARWOOD ANDREWS PTY LTD Third Respondent

ABN 98 076 868 034