SUBMISSIONS TO VICTORIA LEGAL AID

IN RESPECT OF LEGAL AID GRANT APPLICATIONS

ON BEHALF OF HAROLD JAMES JOHNSON

These submissions are given in support of legal aid grant applications made on 6 August 2009 on
behalf of Mr Harold James Johnson, a barrister and solicitor and member of the Law Institute of
Victoria, via his law firm, Sutton Lawyers Pty Ltd ('Sutton Lawyers').

OVERVIEW AND EXECUTIVE SUMMARY

Legal Aid Grant Applications

On 6 August 2009 Sutton Lawyers filed a legal aid grant application on behalf of Mr Johnson as the
appellant in Victorian Supreme Court Proceedings No.3731 of 2009. That is an appeal to the Court
of Appeal against decisions made at first instance in February 2009 in the Trial Division in
Proceedings No. 9665 of 2007 in which Mr Johnson was defendant. The appeal is likely to be
heard towards the end of this year.

On the same day Sutton lawyers filed a legal aid grant application on behalf of Mr Johnson as
defendant and plaintiff by counterclaim in Victorian Supreme Court proceedings No. 9263 of 2008.
The trial in these proceedings is likely to be heard mid- to late- 2010.

Victoria Legal Aid should provide grant funding on 'public interest' grounds

Sutton Lawyers is of the opinion that there are strong publicc interest grounds (within the meaning
of sections 24 and 25 of the Legal Aid Act 1978) for Victorian Legal Aid to grant both funding
applications.

DISCUSSION

Mr Johnson

Mr Johnson is a barrister and solicitor of 19 years good standing, and is a 20 year member of the
Law Institute. Mr Johnson has been active in the Law Institute, including serving on and even
chairing several Law Institute Committees (notably as the only chairman of the Law Institute's
GST Taskforce from 1998 to 2001) and has represented the Law Institute on Government
Committees. Mr Johnson was a monthly contributor to the Law Institute Journal for several years
(1999 to 2003). Mr Johnson began his legal career with Corrs Chambers Westgarth (1989 to
1995), then was with Minter Ellison from (1995 to 1999), before establishing his own successful
commercial law practice in 1999. Both those firms are consistently for decades ranked amongst the
top 30 commercial law firms in the world (in terms of size, fees and profitability). Mr Johnson also
enjoyed considerable success with his own legal practice, including being retained by blue chip
ASX-listed companies and substantial Government authorities and agencies. The most important
'foundation client' of Mr Johnson's own legal practice, the forerunner of Sutton Lawyers, was in
fact (based on percentage of revenue for 1999 and 2000) the Legal Practitioners Liability
Committee.

The legal proceedings

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Mr Johnson is seeking legal aid funding in respect of two proceedings.

First Grant Application: Proceedings No. 3731 of 2009 (Court of Appeal)

The first proceedings commenced in 2007 by Ms C ('Ms C') and were originally numbered as
proceedings 9665 of 2007 in the Supreme Court (Trial Division).

These were de facto property claims brought by Ms C against Mr Johnson. Mr Johnson is allegedly
the father of the youngest of Ms C's three children (all by different men). Mr Johnson
acknowledges that he was dating Ms C during 1999 and it is possible that her paternity allegations
against him are correct. However Ms C has always refused to substantiate her allegations via DNA
testing. Mr Johnson has (out of concern for the well being of all 3 of Ms C's children) acted
honourably and assumed the role of 'non-live with' father towards all 3 of Ms C's children. But Mr
Johnson asserts that he and Ms C were never de factos.

From the birth Ms C's youngest child (allegedly Mr Johnson's daughter) in 2000, Mr Johnson has
provided substantial child support to Ms C. Mr Johnson's payments were always substantially in
excess of the amounts he was mandated by the Child Support Agency to pay to Ms C, shortly after
the birth of the child. Ms C's children came to regard Mr Johnson as a non-live with father figure.
Indeed Ms C brought up the younger of her two sons (who was 5 months old when Ms C and Mr
Johnson first met) to believe that Mr Johnson his biological father too. Ms C had from mid-1998
(coinciding with the birth of her second child) been living with her children in a rental house made
available to her by the Salvation Army under a welfare scheme targetting 'young women in crisis'.
After almost 3 years, in early 2001 the Salvation Army told Ms C that she had to move on so that
the house could be used to assist other young women. In mid-2001, facing eviction by the
Salvation Army and having nowhere else to live, Ms C and her two youngest children (her eldest
boy living full time with his biological father) moved into Mr Johnson's home. Ms C and her
children (including after about a year, her eldest son) lived under Mr Johnson's roof until mid-2003.
From mid-2003 Mr Johnson provided Ms C with a house, rent free, where she lived as a single
mother with her three children, some 15 kilometres or so from Mr Johnson's own home.

Mr Johnson responded to Ms C's claims by filing a short defence denying her claims. Mr Johnson
later filed a counterclaim, countersuing Ms C and her (original) lawyers on the grounds her claims
were a fraud that their actions in promoting her claims were fraudulent and an abuse of process of
the Courts and he was suffering substantial loss and damage on account of Ms C's and her lawyers
caveats preventing him from restructuring his property portfolio by selling some of them to retire
mortgage debt. Mr Johnson's business was also suffering as a consequence of their actions.

In February 2009 the Supreme Court at first instance upheld Ms C's claims. The Court dismissed
Mr Johnson's counterclaims against her (original) lawyers by upholding a technical ruling that Mr
Johnson's pleadings did not make out a proper claim against them and they had 'no case to answer'.
The Court did uphold at first instance only part of Mr Johnson's counterclaim against Ms C, finding
that she did indeed committee aggravated burglary (tresspass to goods) in November 2007 and stole
boxes of Mr Johnson's records, business equipment, mobile phones, personal items, substantial
(unopenned) mail, and business documents, including sensitive Government working papers and
legal advices Mr Johnson was then working on. The Trial Judge found that Ms C did this in an
obvious attempt to find and to conceal evidence from the Court [evidence that should have been
fatal to her claims]. The Trial Judge also made findings that Ms C had lied to him from the witness
box, had lied to previous Judges (in earlier hearings), and had told lies to the Police.

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Still, ignoring his findings as to her lack of credibility, and ignoring substantial independent
evidence (including eye witness testimony and statutory records) the Trial Judge 'believed her' that
she and Mr Johnson were a de facto couple and ordered Mr Johnson to pay Ms C $105,000. That
was the Trial Judge's (erroneous) estimate of 50% of Mr Johnson's net worth, totally failing to take
into account the total lack of (evidence of) contributions by Ms C towards his wealth, and totally
failing to take into account damage ('negative contributions') caused by Ms C and her lawyers (who
have effectively destroyed more than 100% of Mr Johnson's wealth).

The Trial Judge also ordered Mr Johnson to pay Ms C's lawyers, and Ms C's lawyers' lawyers their
costs (the latter, effectively a reimbursement of legal costs paid to her lawyers' lawyers by the Legal
Practitioners Liability Committee) on a full indemnity basis. These costs orders translate into
payments of about $350,000 to Ms C's new lawyers and a payment of about $250,000 to the Legal
Practitioners Liability Committee.

Prior to Ms C's (original) lawyers bringing Ms C's claims against him, Mr Johnson's net wealth was
in excess of $1.5 million, including a portfolio of 6 negatively geared residential properties worth
$2.5 million, and his successful legal practice was generating for him fees in excess of $50,000 per
month. Mr Johnson feels that because of these proceedings he has been defrauded of his properties
and he had to 'temporarily' close his legal practice over a year ago because of the stressful and time
consuming nature of these proceedings. Ms C and her lawyers have left Mr Johnso with negative
net worth, even without taking into account the $105,000 judgement debt and the $600,000 in legal
costs orders made against him.

Mr Johnson also has correspondence he received from Ms C's lawyers a week or so after the trial,
confirming that her lawyers, between them, ran up over $350,000 in recorded legal fees promoting
her claims, for which she has only ever paid them an initial $3,000.

Mr Johnson has filed a notice of appeal against the Trial Judges' decisions citing several grounds of
appeal including substantial errors of process (including denials of natural justice), errors of fact
and errors of law.

There have been 3 preliminary hearings in the Court of Appeal (Chief Justice Marilyn Warren and
AJA Coghlan presiding). Mr Johnson is extremely confident of his prospects of success with his
appeal. Mr Johnson has provided the Law Institute with copies of his written Court of Appeal
Submissions, which are dated 15 June 2009, 9 August 2009 and 14 August 2009. Mr Johnson has
(or will) already supplied these directly to the Victorian Legal Aid Office.

Mr Johnson is hopeful of the appeal being heard before the end of 2009, indicating to the Court of
Appeal that it will require only 3 - 4 hours hearing time and seeking to have an expedited appeal
date set.

Second Grant Application: Proceedings 9263 of 2008 (Trial Division)

These second proceedings were commenced in November 2008 by Mr Johnson's mortgagee, ANZ
Bank, via its subsidiary Trust Company Fiduciary Services Limited. ANZ Bank was seeking
possession of Mr Johnson's property at Point Cook. At that time, Ms C and her children were living
in that property.

Mr Johnson responded in November 2008 by way of a counterclaim against ANZ Bank. Mr

Johnson also responded by restating his counterclaims of fraud, defamation, misconduct and

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negligence against Ms C and her original lawyers. Mr Johnson's response included additional
counterclaims of fraud, defamation, negligence, misconduct against Ms C's current lawyers, the
Legal Services Commissioner, a Federal Judge, a psychologist and others.

Mr Johnson has settled the claim against him by ANZ Bank, which has now been withdrawn
without adjudication, on terms that allow Mr Johnson to keep possession of the Point Cook property
(which has no net equity, and where he presently resides) pending the outcome of Mr Johnson's
broader legal proceedings. ANZ Bank has no further part in these proceedings.

Mr Johnson expects a trial date for these proceedings 9263 of 2008 in early 2010. One of the
grounds of Mr Johnson's appeal in the earlier proceedings was the failure of the Court to
consolidate and hear all of his counterclaims in the one trial.

Mr Johnson's pleadings (an Amended Defence and Counterclaim) are only 'holding' documents as,
once again, he has drafted them for himself, and in a hurry, despite lacking any training or
experience as a litigator. Mr Johnson is not “a fool representing himself”. Mr Johnson is a highly
intelligent man (as the Trial Judge noted throughout the hearing and in his judgement). But Mr
Johnson is forced to represent himself because he has been defrauded of the means to afford
independent legal representation by the very persons who promoted and maintained Ms C's claims
against him.

Public Interest Grounds

In both of the separate legal aid funding grant applications filed on 6 August 2009 Sutton Lawyers
spells out strong public interest reasons for Victoria Legal Aid to fund his legal costs for his appeal
(Proceedings No. 3731/2009) and for his continuing claims (Proceedings No. 9263/2008). It is
understandable that Mr Johnson wishes to appoint independent solicitors and properly experience
counsel to advocate his personal interests and the broader public interests to be served by both
proceedings.

We wish to articulate a number of important issues that are raised in these proceedings that it is is in
the public interest be re-examined and examined by the Courts in these proceedings.

1. The Court of Appeal (and ultimately, if need be, the High Court) needs to reconsider the
wisdom of the High Court majority decision in 2005 in the D'Orta-Edenke case, to retain
the adovactes 'in court' immunity from negligence claims, and even to extend it to out of
court negligence (including out of court negligence by solicitors);

● Australian law on this point is and has been since 2000 been out of line with
the abolition of this privilege and imunnity in all other English law countries
(as Justice Kirby carefully noted in his dissenting judgement). This will be
the first opportunity for the Courts to consider the D'Orta-Edenke decision
since the Victorian Charter of Human Rights and Responsibilities Act
came into force. In 2000 the House of Lords unanimously (11 Law Lords)
abolished the equivalent barristers immunity in the United Kingdom, holding
that it was in the public interest, and beneficial to the standards of the legal
profession in the United Kingdom, and required under newly introduced EEC
human rights laws, that barristers and solicitors in the United Kingdom be
subject to the same professional negligence laws as everybody else: AJ
Mitchell & Sons case.

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 ● The current advocacy immunity is contrary to Victorian human rights
legislation so is no longer good law in this State;
● The current advocacy immunity is (and was) unconstitutional (as Kirby J
noted in his dissenting judgement in D'Orta Endenke), and is in any case
unconstitutional in Victoria as well as under the Australian Constitution as it
is contrary to the rule of law and contrary to Magna Charta (as Mr Johnson
points out).

2. Raises important questions on the scope of several privileges, including witnesses privilege
in respect of testimony, and barristers 'cloak of protection' from the bar table, in
circumstances where those privileges have been abused and exploited to commit malicious
defamations and to pervert the course of justice, including whether such privileges are or
ought to be qualified (eg where the witness or advocate is acting maliciously or otherwise
mala fides) and the Judge's responsibilities to police these privileges where they are
wantonly abused – including perjury by witnesses and unethical misconduct by lawyers.

3. Raises natural justice issues and abuse of process issues including misuse of Supreme Court
rules intended to protect mentally handicapped persons (which Mr Johnson most certainly
isn't) and ensure that they obtain a fair trial (which Mr Johnson most certainly didn't). Mr
Johnson was subjected to all sorts of wild and malicious defamations from the bar table.
These included allegations (ALL false and unsupported by any evidence):
● that Mr Johnson was mentally ill (allegations rejected by both a Supreme Court Judge
and a Federal Judge and later thoroughly investigated for a third time by the Legal
Services Commissioner to be totally rejected as unfounded);
● allegations that Mr Johnson burgled Ms C and stole evidence from her (to wit a birth
certificate that it was proven in evidence Mr Johnson purchased himself from the
Registrar of Births and Deaths on a day in June 2007 when Ms C was in fact not even in
Australia); and
● (Via an Amended Statement of Claim filed after Ms C's lawyers had finished presenting
her case) allegations that Mr Johnson had for the period 2002 to early 2007 been
financially supported by and living off the earnings of Ms C's prostitution (ie a crime of
maintenance – but there being no evidence produced at trial that Ms C was (a) working
as a prostitute; (b) working or receiving any money at all from any source other than Mr
Johnson's child support (not even evidence of welfare benefits were tendered); or (c)
that Ms C ever so much as bought or even made Mr Johnson a cup of coffee, let alone
gave him any money or anything to financially support him. And all of the independent
evidence showed that (d) Mr Johnson and Ms C kept separate and distinct households,
no shared family unit, and (e) while Mr Johnson made generous financial contributions
to Ms C's household, Mr Johnson had no need for anything by way of financial support
from Ms C.
It is repugnant that a man of Mr Johnson's character and standing in the community and in
the legal profession can be in effect, presumed guilty until proven innocent, can be subjected
to an unlawful insanity inquisition at the behest of the plaintiff's counsel in order to gag him
from defending himself, can be refused the right to pre-trial discovery of evidence, the
opportunity to enngage legal representation, and the opportunity to bring his case on his
latest version of his pleadings – while the plaintiff's lawyers are allowed to radically amend
her Statement of Claim even after she has given her (uncorroborated) testimony and been
cross examined (and in circumstances where the plaintiff's lawyers simply failed to produce
any evidence at trial to support either of her two wildly different stories at the beginning and
at the end of presenting her case.

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4. Requires an investigation and assertion (by the Court of Appeal) that the 'doctrine of
precedent' still applies to Victorian Supreme Court trials – given that the Judge at first
instance failed to follow several important unanimous High Court decisions including Jones
v Dunkel (refusal of Ms C to provide DNA paternity results to support her allegations that
Mr Johnson fathered her youngest child; failure of Ms C to produce any evidence to support
her uncorroborated testimony that she and Mr Johnson lived as a couple – or even that she
was engaged in a romantic relationship with Mr Johnson post 1999, any evidence to support
her allegations that she (a) earned money; (b) directly or indirectly made financial
contributions in Mr Johnson's directions etc etc); Brigginshaw v Brigginshaw (making very
serious allegations against Mr Johnson – including allegations of mental illness, burglary,
living off the earnings of prostitution etc), Callinan's Case (legal proceedings issued against
Mr Johnson for vexatious, ulterior purposes – given that Ms C's lawyers never collected
evidence on which they could have been satisfied that Ms C's allegations were not
fraudulent and vexatious but were a legitimate vindication of her rights, or any of the three
lines of precedent applicable from Johnson v Johnson [2000] 201 CLR 488 (no relations).

5. Requires a thorough and long overdue judicial examination into lawyers ethics, inlcuding
serious misconduct by barristers and solicitors for issuing legal proceedings (via caveats and
then by statements of claim) without gathering any evidence to support those claims, or even
evidence sufficient to be able to form an assessment of the merits of the plaintiff's case.
Worse, the plaintiff's lawyers refused to consider the independent evidence rapidly mounting
at their doorstep over the space of the last 3 months of 2007, including police and
psychiatric reports of her assaulting her children and causing property damage, witness
statements by an independent neighbour (a retired nurse); police reports of Ms C committing
aggravated burglary (her lawyers unlafully interfered in the police investigation in order to
have the police not press charges); A psychologist report published in December 2007
containing admissions by Ms C of serious mental and physical violence issues, including
admissions of her violence towards her children, aggravated burglary of Mr Johnson, and
seriously falsely branding Mr Johnson as a drunken, violent, drug, taking, incestuous
pedophile. Requires a serious consideration of the application of 'abuse of process' and
'vexatious and abusive' claims principles such as were before the Federal Court in Calinan's
case (White Industries Pty Ltd v Flower and Hart (A Firm) (1998) 156 ALR 169
(Goldberg J) affirmed (1999) 87 FCR 134.

6. Requires a consideration of the public responsiblities of the Legal Services Commissioner

and the consequences of her failure to peform her public duties under the Legal Practice
Act 2004 as the legal regulator with statuory powers, Government funding and statutory
responsibilities to investigate and deal with 'rogue' barristers and solicitors.

7. Requires an examination of the Charter of Human Rights and Responsiblities Act and
the implications of the Charter and the role of the Courts and lawyers generally as human
rights 'game keepers'. To what extent even with the introduction of the Charter of Human
Rights and Responsibilities Act is the Supreme Court required, as a matter of its
procedures and in handing down substantive judgement in cases, to protect and foster the
human rights protected under the Charter? And to what extent are other Courts (such as the
Federal Magistrates' Court when making decisions under the Family Law Act on custody
and access applications under federal laws that are complementary with the Victorian
Charter, required to make their processes and decisions friendly with and respectful of the
rights of Victorians (men, women and children)? And to what extent are other arms of

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 Government, including Government Agencies such as Legal Services Commissioner,
Legal Practice Board, Legal Practitioners Liability Committee, the Department of
Justice and even Victoria Legal Aid too, required to incorporate and respect and foster the
Chartered human rights of Victorians (men, women and children) in their decisions and
decision making practices?

8. Access to justice issues – including the alarming financial imbalance whereby Mr Johnson is
unable to afford skilled legal representation by the very actions of Ms C and her lawyers,
while Ms C benefits from the champetry and maintenance of her lawyers (not once, but
twice) and then Ms C's lawyers get the benefit of a city law firm and a city barrister funded
by a Government agency (Legal Practitioners Liability Committee). The Legal Practitioners
Liability Committee is funding 4 city law firms and 4 city barristers, whilst Mr Johnson is
left to fend for himself, should Victoria Legal Aid not grant him funding to obtain
independent legal representation.

9. Financial recovery by Victoria Legal Aid – whilst the issues raised are complex and require
considerable legal resources to be funded by legal aid grants if they are to be presented fairly
in Court (especially in a fairly resourced battle against the 4 city law firms and 4 city
barristers funded by the Legal Practitioners Liability Committee) there is of course good
prospect that Mr Johnson's claims will be successful and favourable costs orders are made
that will reimburse Victoria Legal Aid for a substantial portion of the costs.

10. It is hoped that the Court of Appeal and/or if need be, the High Court of Australia, may
address some of the injustices that Mr Johnson complains about, via clarifying and/or
making new laws. However, alternatively or even additionally, judicial examination may be
the catalyst for the Parliaments (Victorian and Federal) to reform the law with new
legislation.

Sutton Lawyers notes that there are precedents for Victora Legal Aid granting legal aid funding
for public interest cases the magnitude of Mr Johnson's proceedings. Sutton Lawyers understands
that Victoria Legal Aid funded Mr D'Orta-Edenke's proceedings (to which Victoria Legal Aid was
itself a defendant - the defendant law firm).

We attach a newspaper report of late 2008 under the heading 'Lawyers Cash In' that reports that
Victoria Legal Aid may have provided $1,000,000 in funding for a VCAT application by a police
officer, claiming unfair dismissal, who had been rejected access to his working papers under FOI
laws and was arguing that the rejection constituted a breach of his human rights under the Charter
of Human Rights and Responsibilities.

With all respect, the public interest issues that are identifiable in the legal actions that Mr Johnson is
presently self-represented out of poverty are broader and of greater importance than the issues for
which Victoria Legal Aid has granted funding in both those cases, combined.

CONCLUSION

For all of the above reasons, Sutton Lawyers submits that the legal proceedings for which he is
seeking legal aid funding are of enormous public interest and there is a need and justification for
Victoria Legal Aid to grant him funding in all the circumstances so that these issues can properly be
presented and argued and considered by the Courts, as a contest between equally matched

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opponents. The public interest will not be served if these proceedings remain a battle between an
impoverished Mr Johnson and 2 city law firms and 2 city barristers who are represented by 4 city
law firms and 4 city barristers who have behind them the full and unmatched resources of Victorian
Government agency, the Legal Practitioners Liability Committee.

Kind regards

SUTTON LAWYERS
19 August 2009

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