Chickabo v Zphere

[2020] VSC 556

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMERCIAL COURT

S ECI 2018 00084

CHICKABO PTY LTD (ACN 074 576 186) & OTHERS (ACCORDING TO THE SCHEDULE)	Plaintiffs
v
ZPHERE PTY LTD (ACN 114 716 773) & OTHERS (ACCORDING TO THE SCHEDULE)	Defendants

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JUDGE:	ALMOND J
WHERE HELD:	Melbourne
DATE OF HEARING:	30 July 2020
DATE OF RULING:	2 September 2020
CASE MAY BE CITED AS:	Chickabo & Ors v Zphere & Ors
MEDIUM NEUTRAL CITATION:	[2020] VSC 556

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EVIDENCE – Objections to evidence previously given in a separate trial in the same proceeding against other defendants – Evidence ruled inadmissible on the basis that the evidence is hearsay – No relevant exclusion applies.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	J P Moore QC and J A G McComish	HWL Ebsworth Lawyers
For the Seventh Defendant	A G Uren QC and R J Harris	Herbert Smith Freehills
For the Eighth to Eleventh Defendants	M Garner	K&L Gates

HIS HONOUR:

1. Pursuant to orders of the Court made on 3 April 2020, the plaintiffs filed a list of evidentiary material upon which they intend to rely at the forthcoming trial in this proceeding between the plaintiffs and the seventh to twelfth defendants. The seventh defendant and eighth to eleventh defendants each gave notices of objection to some of the evidentiary material identified by the plaintiffs in the list.[1] Principally, the objections were to the use in a forthcoming trial against the seventh to twelfth defendants of the transcripts of oral testimony and witness statements tendered in evidence in a previous trial against the first to fourth defendants in the same proceeding.[2] During the course of a hearing to address the objections, many objections were clarified, resolved or were no longer pressed.

   [1]The seventh defendants filed a Notice of Objection dated 10 June 2020.  The eighth to eleventh defendants filed a Notice of Objection dated 29 May 2020.

   [2]Chickabo Pty Ltd & Others v Zphere Pty Ltd & Others [2019] VSC 73 (Sifris J). See also the judgment of the Court of Appeal: FBR Fund Administration Pty Ltd v Chickabo Pty Ltd [2019] VSCA 314 (Whelan, Beach and Niall JJA).

1. In relation to the witness statements and the oral evidence of the plaintiffs’ witnesses Steven Sakkas, Kevin Joseph Mullen and John Gerald Higgins, tendered or given at the trial between the plaintiffs and the first to fourth defendants during November 2018, the seventh to eleventh defendants adopted the following common position. 

1. Provided that these witnesses (a) were called at the forthcoming trial and adopted the evidence they had previously given by witness statement, or confirmed the accuracy of the transcript of the evidence previously given; and (b) were made available for cross-examination on their evidence (whether it had been given by witness statement or orally), there would be no objection to the evidence.

1. If the witnesses were not called to give evidence, the evidence would be objected to on the ground of hearsay.

1. Senior Counsel for the plaintiffs informed the Court that it was intended that these witnesses would be called at trial, would adopt or confirm evidence previously given, and would be available for cross examination. As a consequence, this issue fell away.

1. Objections to paragraphs 45, 47, 57 and 60 of the witness statement of Steven Sakkas were resolved during argument.  In light of objections to paragraphs 66, 67 and to part of paragraph 9, these paragraphs (or part paragraph) are no longer pressed by the plaintiffs.  Further, the plaintiffs have no objection to the evidence in paragraphs 30 and 31 being given orally. 

1. In light of objections to the evidence of paragraph 35 of the witness statement of John Gerald Higgins, this paragraph is no longer pressed by the plaintiffs.  Further, the plaintiffs have no objection to the evidence in paragraph 33A being given orally.

1. In the circumstances, there are a greatly reduced number of objections which require a ruling. Senior Counsel for the plaintiffs stated that the plaintiffs did not require reasons if the Court ruled against the plaintiffs and upheld the objections. Counsel for the eighth to eleventh defendants stated that reasons would only be required if the Court ruled against the eighth to eleventh defendants. Senior Counsel for the seventh defendant stated that the question of whether reasons are given would be left to the judgment of the Court.

1. In my view:

(a)the statements at paragraphs 173, 188 and 194 of the witness statement of Gary Charles Graco, sworn 14 November 2018;[3]

[3]Particularised in paragraph 4 of the plaintiffs’ list of evidentiary material dated 17 April 2020 (‘Plaintiffs’ List of Evidentiary Material’).

(b)the oral evidence of Gary Charles Graco, given in the original hearing against the first to fourth defendants at transcript references T285.20-31, T300.2-8, T310.2-8, and T331.30-31;[4]

[4]Particularised in paragraph 5 of the Plaintiffs’ List of Evidentiary Material.

(c)the statements at paragraphs 3, 7 and 9-10 in the witness statement of Frana Graco, sworn 15 November 2018;[5] and

[5]Particularised in paragraph 6 of the Plaintiffs’ List of Evidentiary Material.

(d)the oral evidence of Frana Graco, given in the original hearing against the first to fourth defendants at transcript reference T365.6-7[6]

[6]Particularised in paragraph 7 of the Plaintiffs’ List of Evidentiary Material.

are hearsay.  As no relevant exclusion applies, the statements are inadmissible in the trial between the plaintiffs and the seventh to twelfth defendants.  I do not propose to elaborate further unless counsel change their minds on the need for reasons.

SCHEDULE OF PARTIES

S ECI 2018 00084

CHICKABO PTY LTD  (ACN 074 576 186)

First Plaintiff

DAKIS NETWORTH PTY LTD  (ACN 117 348 633)

Second Plaintiff

GATAYA PTY LTD (ACN 088 653 785)

Third Plaintiff

LA ROCCA INVESTMENTS PTY LTD  (ACN 138 952 708)

Fourth Plaintiff

MALECON HORIZON PTY LTD  (ACN 135 028 867)

Fifth Plaintiff

ZERVOS NOMINEES PTY LTD  (ACN 080 056 873)

Sixth Plaintiff

IKOYENIA 5 PTY LTD  (ACN 143 742 634)

Seventh Plaintiff

KEVIN JOSEPH MULLEN

Eighth Plaintiff

GEORGE SAMUEL DAKIS

Ninth Plaintiff

MARK MORDERCHAI HAMMERSCHLAG

Tenth Plaintiff

JOHN ANTHONY LA ROCCA

Eleventh Plaintiff

MICHAEL JOHN BRYANT

Twelfth Plaintiff

PETER ZERVOS

Thirteenth Plaintiff

STEVE SAKKAS

Fourteenth Plaintiff

MOORE STEPHENS (VIC) PTY LTD (ACN 052 362 348)

Fifteenth Plaintiff

ZPHERE PTY LTD  (ACN 114 716 773)

First Defendant

GFBR NOMINEES PTY LTD  (ACN 005 599 799)

Second Defendant

GLENALDON PTY LTD  (ACN 007 338 598)

Third Defendant

GARY CHARLES GRACO

Fourth Defendant

DRP CONSULTING PTY LTD  (ACN 074 057 097)

Fifth Defendant

DAVID RAPHAEL POLONSKY

Sixth Defendant

FRANA MAUDE GRACO

Seventh Defendant

FBR FUND ADMINISTRATION PTY LTD

(ACN 622 598 538)

Eighth Defendant

BADEN RHAIN GRACO

Ninth Defendant

RHIAN VICTORIA GRACO

Tenth Defendant

EMILY DENISE GRACO

Eleventh Defendant

DANIJEL FRANCIS LLOYD

Twelfth Defendant