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

---

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

---

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.

---

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:

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).

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.

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.

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

Senior Counsel for the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Chickabo v Zphere and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2020] VSC 556
Decision Date: 2 September 2020

CaseChat Overview and Summary

Chickabo v Zphere involved a dispute between the plaintiff, Chickabo, and the defendant, Zphere, concerning allegations of defamation and breach of privacy. The case was heard in the Federal Circuit and Family Court of Australia. The plaintiff sought to introduce evidence that was previously given in a separate trial in the same proceeding against other defendants, aiming to establish a pattern of behaviour by the defendant.

The court needed to decide whether the evidence, which was hearsay, could be admitted. The legal issue centred on whether the evidence could be excluded from the definition of hearsay under the Uniform Evidence Acts. The court examined if any of the exceptions to the hearsay rule applied, such as admissions by a party-opponent or statements made in the course of duty. The court concluded that none of these exceptions applied, and the evidence remained hearsay.

In reaching its decision, the court noted that the evidence was not an admission by the defendant and did not fall under any exception to the hearsay rule. The court found that the evidence was not relevant to the current proceeding and that admitting it would not be fair to the defendant. Consequently, the court ruled the evidence inadmissible. The court's decision was based on the principle that hearsay evidence, unless it falls under a specific exclusion, should not be considered in the determination of the case. This ruling underscores the importance of adhering to the hearsay rule and its exceptions in evidence law.

Orders