Giovinazzo v Resource Capital Limited
[2025] VSCA 176
•30 July 2025
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCI 2024 0123 |
| MICHAEL JAMES GIOVINAZZO & ANOR (ACCORDING TO THE ATTACHED SCHEDULE) | Applicants |
| v | |
| RESOURCE CAPITAL LIMITED & ORS (ACCORDING TO THE ATTACHED SCHEDULE) | Respondents |
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| JUDGES: | NIALL CJ, WALKER AND LYONS JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 3 July 2025 |
| DATE OF JUDGMENT: | 30 July 2025 |
| MEDIUM NEUTRAL CITATION: | [2025] VSCA 176 |
| JUDGMENT APPEALED FROM: | [2024] VSC 548 (M Osborne J) |
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PRACTICE AND PROCEDURE – Appeal – Discretionary decision to refuse leave to subpoena a new witness after trial commenced and contrary to earlier procedural orders – Parties entered into an oral agreement regarding ownership of shares – Parties saw a solicitor eighteen months later and discussed matters relating to the agreement – Critical question in trial concerned ownership of shares – Finding on ownership of shares turned on credit of witnesses – Applicant sought to call solicitor as new witness during trial – Primary judge refused to allow new witness – Whether applicant denied procedural fairness by not allowing new witness – Whether primary judge erred in finding new evidence not of central importance to the critical question – Relevance of post-contractual conduct – Whether new witness would cause unfair prejudice to other parties – Whether new witness would present rebuttal evidence – Whether new witness should have been subpoenaed earlier – Where limited window available for trial and new witness would derail trial – Whether decision not to allow new witness unreasonable or plainly unjust – No error established – Leave to appeal refused.
Civil Procedure Act 2010; Supreme Court (General Civil Procedure) Rules 2015; Corporations Act 2001 (Cth).
Hightime Investments Pty Ltd v Adamus Resources Ltd [2012] WASC 295; County Securities Pty Ltd v Challenger Group Holdings Pty Ltd [2008] NSWCA 193, discussed.
Eaton v ISS Catering Services Pty Ltd (2013) 42 VR 635; Wilson v Bauer Media [Ruling No 1] [2017] VSC 302; Rush v Nationwide News Pty Ltd [No 4] [2018] FCA 1558; Mobile Innovations Limited v Vodafone Pacific Limited [2003] NSWSC 309; Primrose Meadows Pty Ltd v River View Pty Ltd [2017] VSC 487; N M Rural Enterprises Pty Ltd v Rimanui Farms Ltd [2011] NSWSC 1561; Clifford v Vegas Enterprises Pty Ltd [No 4] [2010] FCA 326; Northern Health v Kuipers [2015] VSCA 172, cited.
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| Counsel | |||
| Applicants: | B Walker SC with B Gibson and D Porteous | ||
| Respondents: | CO Parkinson KC with DF McAloon | ||
Solicitors | |||
| Applicants: | Tisher Liner FC Law | ||
| Respondents: | Aptum Legal | ||
NIALL CJ
WALKER JA
LYONS JA:
The first applicant, Michael Giovinazzo, is the sole director and shareholder of the second applicant, Omeo Gold Pty Ltd (‘Omeo Gold’).[1] On 22 October 2019, Mr Giovinazzo incorporated Golden Plains Resources Pty Ltd (‘GPR’) as an investment vehicle. GPR had 10 issued shares, which were initially held equally by Mr Giovinazzo and by Tania Pendergast.[2] Ms Pendergast was GPR’s sole director and secretary. GPR entered into various agreements with Rimfire Pacific Mining Limited (‘Rimfire’), which required it to pay sums to Rimfire at various times.[3]
[1]We will refer to Mr Giovinazzo and Omeo Gold together as the ‘Giovinazzo parties’.
[2]In April 2021, Mr Giovinazzo and Ms Pendergast transferred their shares in GPR to a company called Tarina Lee Holdings Pty Ltd, which was trustee of Ms Pendergast’s family trust.
[3]Rimfire is a publicly listed company which was not party to the proceedings. Rimfire’s previous name was ‘Rimfire Pacific Mining NL’.
On 16 September 2020, Mr Giovinazzo and Ms Pendergast caused GPR to issue 990 new shares in the name of the first respondent, Resource Capital Limited (‘RCL’) (the ‘GPR shares’). The second respondent, Anton Billis is the sole director and shareholder of RCL. Mr Billis and Mr Giovinazzo were friends. Following the issue of the shares, Mr Billis caused RCL and the fourth respondent, Lake Grace Exploration Pty Ltd (‘Lake Grace’) to advance a total of $3,815,000 to or on behalf of GPR for the purposes of meeting GPR’s financial obligations to Rimfire.
In August 2022, RCL commenced a proceeding against Mr Giovinazzo, Tarina Lee Holdings Pty Ltd (‘Tarina Lee Holdings’) and GPR,[4] alleging that Mr Giovinazzo had conducted the affairs of GPR contrary to the interest of its members as a whole and oppressively to RCL.
[4]Tarina Lee Holdings and GPR did not take an active role in the proceeding.
The case concerns a dispute between Mr Billis and Mr Giovinazzo over control of GPR. The critical question in the proceeding below was whether the GPR shares were held absolutely by RCL (as RCL contended) or as security for a loan from RCL to Omeo Gold (as the Giovinazzo parties contended).
In the proceeding below a judge made orders for the filing of witness statements. RCL filed witness statements for Mr Billis and Ms Prendergast. The applicants filed witness statements for Mr Giovinazzo, Mr Brian McDonald and Mr Gerard Connolly. In Mr Billis’ witness statement, he said that in early to mid-June 2022, he and Mr Giovinazzo went to see a lawyer they both knew, Mr Lee Christensen, ‘to see whether he could document the arrangement on acceptable terms’. However, ‘[b]y the end of June 2022, Lee could not produce a document that recorded the arrangement on acceptable terms. Accordingly, the matter went no further’.
All evidence-in-chief in the trial was led orally. In the course of cross-examination, Mr Billis gave evidence about the meeting with Mr Christensen.[5] At 7:39 pm on Friday 10 May 2024, after Mr Billis’ evidence appeared to have concluded but before he had been excused, Mr Giovinazzo’s lawyers wrote to the Court and to RCL, notifying them of their intention to apply for leave to call Mr Christensen to give evidence and to put the substance of his evidence to Mr Billis before he was excused from cross examination. The email attached an outline of Mr Christensen’s expected evidence.
[5]In the cross-examination of Mr Billis counsel suggested to him that the meeting had occurred on 4 June 2022. Mr Billis did not disagree with the date. In fact the meeting had occurred on 29 March 2022.
On the morning of Monday 13 May 2024, the judge heard and determined the application for leave to call Mr Christensen. The judge rejected the application. The trial then continued and the judge ultimately ruled in favour of RCL. His Honour concluded that the GPR shares registered in RCL’s name were not held by RCL on trust for Mr Giovinazzo.
The Giovinazzo parties now seek to appeal the judge’s decision,[6] on a single proposed ground of appeal as follows:
The learned trial judge denied the Applicants procedural fairness, by directing that the Applicants could not call Mr Lee Christensen as a witness for the Applicants to give evidence that was relevant to the “critical question” in the proceeding and which could have been determinative of that question and dispositive of all issues in the proceeding.
[6]The respondents to the application for leave to appeal are RCL, Mr Billis, GPR and Lake Grace. For the purposes of the appeal, we shall refer to them as ‘the Billis parties’.
For the reasons that follow, we would refuse leave to appeal. In short, the judge did not prevent the Giovinazzo parties from calling Mr Christensen as a witness; rather, the Court imposed procedural restrictions on the parties in relation to the calling of witnesses, with which the Giovinazzo parties failed to comply. They also made a forensic decision not to subpoena Mr Christensen prior to trial. The judge’s decision not to permit the Giovinazzo parties to call Mr Christensen half-way through the trial was an interlocutory, discretionary decision on a matter of practice and procedure, requiring appellate restraint. His Honour had regard to the circumstances in which the application was made and weighed the appropriate matters. We can discern no error in his Honour’s decision.
Detailed factual background
It is necessary to set out in some greater detail the circumstances in which the issue of Mr Christensen’s evidence arose.[7]
[7]What follows is based on the parties’ Agreed Summary for the Court of Appeal and on the Reasons.
Mr Giovinazzo and Mr Billis met in Western Australia in the late 1980s or early 1990 and became friends. In around 2003, Mr Giovinazzo and his wife purchased a gold mine in Omeo, Victoria. Sometime later, that mine (together with other mining interests) was acquired by ABA Resources Pty Ltd (‘ABA Resources’). Until early 2019, Mr Giovinazzo was then employed as ABA Resources’ business development officer. His executive assistant at ABA Resources was Ms Pendergast.
Lake Grace lent Mr Giovinazzo $14,600 in September 2019 and $20,000 in June 2020 for purposes unrelated to GPR.[8] Lake Grace also lent $20,000 to Omeo Gold in June 2020.[9]
GPR and its investments
[8]Reasons, [17], [26].
[9]Reasons, [45].
As explained above, on 22 October 2019, Mr Giovinazzo incorporated GPR as an investment vehicle. Its 10 issued shares were held equally by Mr Giovinazzo and by Ms Pendergast, and Ms Pendergast was its sole director and secretary.[10]
[10]Reasons, [30].
On 1 May 2020, GPR entered into three agreements with Rimfire, an ASX-listed mining company, in relation to its mining project at Fifield, New South Wales:
(a)a subscription agreement, by which GPR agreed to subscribe for 75 million fully paid ordinary shares in Rimfire for $240,000 (the ‘1 May 2020 subscription agreement’);
(b)an earn-in agreement, by which, in return for the provision of funding, GPR would acquire an interest of 50.1 per cent in the plant, land, permits and other assets comprising the Fifield project (the ‘Fifield Earn-in Agreement’); and
(c)a joint venture agreement, by which GPR and Rimfire agreed to form an unincorporated joint venture in relation to the Fifield project, once the commitments under the Fifield Earn-in Agreement had been met.[11]
[11]Reasons, [9], [35].
On 24 June 2021, GPR entered into a further earn-in agreement with Rimfire in respect of a separate project in Avondale (the ‘Avondale Earn-in Agreement’).[12]
Funding for GPR
[12]Reasons, [9], [106].
Funding for GPR’s activities was initially provided by the Giovinazzo parties.[13] However, Mr Billis, through Lake Grace, provided funds to Rimfire on behalf of GPR, as follows.
(a)On 19 May 2020, Mr Billis caused Lake Grace to transfer $240,000 to a bank account in Rimfire’s name, being the purchase price of the 75 million shares in Rimfire under the 1 May 2020 subscription agreement. This amount was secured by a signed transfer form (with a blank transferee) in relation to the 75 million shares. The trial judge considered this transfer to be a loan, and noted that it has not been repaid, and that Mr Billis has not exercised any security rights by lodging the transfer forms.[14]
(b)On 5 August 2020, Lake Grace transferred $50,385 to the account of a sharebroker, Morrison Securities. This amount related to the acquisition by GPR of a further 10 million shares in Rimfire. As was the case the original 75 million share subscription, this amount too was secured by a signed, blank transfer form. This, too, was accepted by the parties and the judge to be a loan.[15]
[13]Reasons, [19].
[14]Reasons, [39]–[44].
[15]Reasons, [46]–[49].
Between 24 September 2020 and 31 May 2022 Mr Billis caused RCL and Lake Grace to advance a total of $3,815,000 to GPR or to Rimfire, for the purposes of meeting GPR’s ‘cash call’ obligations, initially under the Fifield Earn-in Agreement and then, from 24 June 2021, also under the Avondale Earn-in Agreement.[16] The basis upon which these payments were made lies at the heart of the critical issue in the proceeding.[17]
[16]Reasons, [50], [86], [89], [99], [102], [105], [116], [127], [128], [134], [323].
[17]Reasons, [52].
After 28 July 2022, GPR borrowed funds from Omeo Gold.[18]
The issue of the GPR shares to RCL
[18]Reasons, [242].
The RCL and Lake Grace funding for GPR followed the issue of the GPR shares to RCL. The terms on which the GPR shares were issued were agreed in oral conversations between Mr Giovinazzo and Mr Billis in August or September 2020. Those terms were in dispute. In particular:
(a)RCL did not dispute that its provision of funds to GPR were properly to be understood as loans.[19] But it contended that it agreed to fund GPR’s obligations under the Fifield Earn-in Agreement (and later the Avondale Earn-in Agreement) on the basis that it was issued a controlling interest in GPR, which occurred by way of the issue of the GPR shares.[20]
(b)In contrast, the Giovinazzo parties contended that Mr Billis agreed to lend funds to Mr Giovinazzo, to be on-lent to GPR to meet its ‘cash call’ obligations. The terms of the loan included that GPR would issue the GPR shares to RCL as security. The GPR shares would be registered in RCL’s name but held on trust for Mr Giovinazzo, and upon repayment of the loans made by Mr Billis, the legal interest in the GPR shares would be transferred to Mr Giovinazzo. The Giovinazzo parties also contended that, in addition to causing GPR to issue the GPR shares to RCL, they provided additional security to Mr Billis in the form of a signed transfer form in relation to 7 million shares in Australian Business Advancement Cooperative Ltd, a cooperative which owns (amongst other things) ABA Resources. Mr Billis and RCL would have no recourse to the transfer form or the GPR shares, including by registering that form or by exercising any of the rights attaching to the GPR shares, unless there was a default under the loan agreement.[21]
[19]Reasons, [179].
[20]Reasons, [53].
[21]Reasons, [54].
On 16 September 2020, the date that the GPR shares were issued, an ASIC Form 484 was lodged with ASIC that recorded that the GPR shares were not beneficially held by RCL.[22] A copy of the ASIC extract which Mr Giovinazzo sent to Mr Billis when the shares were issued similarly showed they were not beneficially held by RCL.[23]
[22]Reasons, [74].
[23]Reasons, [74]–[76].
In April 2021, Mr Giovinazzo and Ms Pendergast each transferred their shares in GPR to Tarina Lee Holdings (which was trustee of Ms Pendergast’s family trust, established for the benefit of Ms Pendergast’s children).[24]
Mr Giovinazzo was appointed director of GPR
[24]Reasons, [92].
On 30 June 2021, Ms Pendergast resigned as GPR’s director. On 2 July 2021, Ms Pendergast signed a circulating resolution of members of GPR which, amongst other things, appointed Mr Giovinazzo as the new director with effect from 30 June 2021.[25] Mr Billis did not sign the circulating resolution. Mr Billis was informed that Mr Giovinazzo had been appointed GPR’s director.[26]
[25]Reasons, [107], [110].
[26]Reasons, [119], [120], [393].
On 13 July 2021, an ASIC Form 484 was lodged with ASIC recording a change in registered address and Mr Giovinazzo’s appointment as GPR’s director.[27]
Involvement of Mr Christensen
[27]Reasons, [114].
On 29 March 2022, Mr Giovinazzo and Mr Billis met in Perth with Mr Lee Christensen, the principal lawyer of CX Law in order to discuss the arrangement between Mr Billis and Mr Giovinazzo and their companies.[28] Both Mr Giovinazzo and Mr Billis gave evidence about what occurred at that meeting; their accounts differed.[29]
[28]Reasons, [145]–[146].
[29]Reasons, [138].
Following that meeting, on 30 March 2022, Mr Christensen emailed Mr Giovinazzo with various follow-up questions:
Michael,
I refer to our meeting yesterday.
To assist me going forward could you;
1. Advise what, if anything, is to occur to the shareholding in GPR of Tarina Lee Holdings Pty Ltd(given it is Tarina's company and she has nothing to do with the company any more??
2. Do you have a search of Resource Capital Ltd – I assume it is incorporated in Singapore?
3. Assuming you were to otherwise repay the amounts due to RC (from whatever source) what would have happened to its shareholding in GPR?
4. How much has been advanced so far? Is there any interest involved and when it is otherwise repayable (and any other relevant terms you may have agreed with RC)?
5. In regard to the deal between GPR and RC has it been reduced to writing anywhere? If so, can I see it please?
6. Is transglobal involved in this? It was mentioned yesterday.[30]
[30]Reasons, [156].
Mr Christensen sent an email to Mr Giovinazzo with further questions on 18 April 2022, to which Mr Giovinazzo replied on 20 April 2022.[31]
[31]Reasons, [157]–[158].
On 22 April 2022, Mr Christensen sent an email to Mr Giovinazzo that said as follows:
Dear Michael,
Please find attached a very draft deed (I can do the all matters later) of the matters we have discussed.
It basically sets out the issues we discussed, I am left somewhat of the view that there is more we can do.
Given you know the circumstances better than I forward to your thoughts. Once we have dealt with any additional matters or changes as the case may be then we should be able to finalise circulation to the other parties (not tarina lee) very quickly.
I look forward to your thoughts.
Mr Giovinazzo forwarded that email to Mr Billis on 4 June 2022. On 6 June 2022 Mr Billis replied to Mr Giovinazzo as follows:
Lee
I dont agree with this draft
Regards
Anton
Mr Giovinazzo signed a draft repayment deed on 28 June 2022 and a further version on 12 July 2022. Mr Billis did not sign any version of the repayment deed.[32]
RCL proposes new directors for GPR
[32]Reasons, [169]–[172].
On 23 June 2022, RCL wrote to Ms Pendergast (as director of Tarina Lee Holdings), attaching a proposed shareholder resolution that confirmed the appointment of Mr Giovinazzo as director of GPR and added two additional directors, Mr Oliver Douglas and Mr Roland Berzins.[33]
[33]Reasons, [163].
On 11 July 2022, through its solicitors Johnson Winter Slattery, RCL wrote again to Ms Pendergast. That letter advised that RCL sought to convene a meeting of the members of GPR pursuant to s 249F of the Corporations Act 2001 (Cth), to take place on 20 July 2022. The purpose of the meeting was to consider resolutions to remove Mr Giovinazzo as a director of GPR and appoint Mr Douglas and Mr Berzins as directors. The letter said the need for a formal meeting of members could be avoided if both shareholders passed the proposed resolutions by way of a circulating resolution, a copy of which was enclosed in the letter. The circulating resolution enclosed had been signed by Mr Billis on behalf of RCL on 11 July 2022.[34] On 18 July 2022, Ms Pendergast sent a signed copy of the circulating resolution to Johnson Winter Slattery.[35]
The issue of further shares in GPR
[34]Reasons, [165]–[167].
[35]Reasons, [175].
On or about 3 August 2021 Mr Giovinazzo entered into an Employee Stock Option Agreement with GPR, which provided for the grant of options by GPR in favour of Mr Giovinazzo to purchase 10,000 ordinary shares in GPR for $1 per share.[36]
[36]Reasons, [122], [125].
On 19 July 2022, Mr Giovinazzo purported to exercise rights under the Employee Stock Option Agreement. He lodged a document with ASIC which recorded the issue of an additional 9,000 ordinary shares in GPR, of which 8,910 were allocated to himself and 90 were allocated to Tarina Lee Holdings.[37]
[37]Reasons, [173].
The proceeding below
RCL commenced its proceeding in the trial division on 22 August 2022 by originating process. Mr Giovinazzo was the first defendant. Tarina Lee Holdings and GPR were the second and third defendants, but took no active role in the proceeding.[38]
[38]Reasons, [196].
On 10 October 2022, a judge made orders for the filing of pleadings and evidence in the proceeding, including an order that, subject to any further order, evidence in the trial be by witness statement.[39]
[39]Reasons, [196].
Pleadings were filed in late 2022 and amended in early 2023. By its amended statement of claim dated 20 February 2023, RCL alleged that Mr Giovinazzo had conducted the affairs of GPR contrary to the interests of its members as a whole and oppressively to RCL, by:
(a)appointing himself a director and secretary of GPR with effect from 30 June 2021;
(b)entering into the Employee Stock Option Agreement with GPR;
(c)purporting to exercise rights under the Employee Stock Option Agreement and causing GPR to issue an additional 9,000 ordinary shares; and
(d)causing GPR to borrow funds from Omeo Gold after July 2022.
The Giovinazzo parties filed a defence to the amended statement of claim and a counterclaim, to which the defendants were the Billis parties. In their defence and counterclaim, the Giovinazzo parties contended that:
(a)on around 15 September 2020, Mr Billis, RCL, Mr Giovinazzo, Omeo Gold and GPR entered into a loan agreement pursuant to which Mr Billis agreed to lend Mr Giovinazzo funds, to be on-lent by Mr Giovinazzo to GPR or applied to meet its payment obligations under the Rimfire earn-in agreements;
(b)GPR agreed to issue 990 shares in the name of RCL, those shares being held on trust for Mr Giovinazzo as security for the funds to be advanced by Mr Billis;
(c)Mr Giovinazzo agreed to cause Omeo Gold to provide further security by the execution of a transfer form in favour of RCL in respect of 7 million shares in Australian Business Advancement Cooperative Ltd; and
(d)Mr Billis and RCL were to have no recourse to the GPR shares.[40]
[40]Reasons, [54].
They further contended that:
(a)Mr Giovinazzo was validly appointed director of GPR with effect from 30 June 2021;
(b)entry into the Employee Stock Option Agreement and the Omeo Gold-GPR loans was consistent with Mr Giovinazzo’s duties as director of GPR and was not oppressive to RCL or contrary to the interests of GPR’s members as a whole; and
(c)by asserting absolute ownership of the GPR shares, despite there being no default in repayment of the loan, and by refusing to confirm that the GPR shares can be redeemed upon repayment, RCL had breached the loan agreement and its duties as trustee of the GPR shares, and declaratory relief ought be granted to the effect that Mr Giovinazzo was entitled to redeem the GPR shares upon repayment.
Pursuant to orders for the conduct of the proceeding, the Billis parties filed two witness statements for Mr Billis (dated 30 March and 27 June 2023) and one witness statement for Ms Pendergast (dated 23 June 2023). The Giovinazzo parties filed witness statements from Mr Giovinazzo, Mr McDonald and Mr Connolly on 8 May 2023.[41]
[41]Reasons, [197].
Mr Billis’s witness statement of 30 March 2023 contained a heading, ‘Attempts to formalise agreement with CX Law’, under which he said as follows:
I decided not to confront Giovinazzo immediately about the fact that RCL’s 990 shares in GPR were recorded as not being beneficially held by RCL. I was concerned that Giovinazzo had pulled the wool over my eyes from the very start, and I wanted to see if something could be done.
Giovinazzo and I went to see a lawyer who we both knew, Lee Christensen at CX Law in Perth, to see whether he could document the arrangement on acceptable terms, in order to protect my investment. Giovinazzo flew to Perth and we both went to see Lee at his offices in West Perth. To the best of my recollection, this was in around early to mid-June 2022.
By the end of 2022, Lee could not produce a document that recorded the arrangement on acceptable terms. Accordingly, the matter went no further.[42]
[42]Extracted in Reasons, [145] (paragraph numbers omitted).
On 26 July 2023 the parties filed the court book. In August and September 2023 the parties filed their outlines of opening submissions. On 8 August 2023, the parties filed an agreed list of issues in dispute. On 4 October 2023, a judge fixed the proceeding for trial on 7 May 2024, on an estimated duration of six to seven days.[43]
[43]Reasons, [197], [198].
On 15 March 2024, at a directions hearing in the proceeding, a judge said that, having read the material, he had formed the view that ‘all or nearly all’ of the evidence was to be led orally and not through witness statements.[44] That was because so much of it involved contested oral conversations and because there was a high prospect that each party would be asking the court to find that the other party’s witness is dishonest in some way. An agreed trial plan, which took into account witness and counsel availability, contemplated the evidence concluding on 16 May 2024 and final submissions being heard the week commencing 17 June 2024.[45]
[44]Reasons, [199].
[45]Reasons, [201].
On 27 March 2024, the parties were told that the proceeding would commence on 6 May 2024.[46]
[46]Reasons, [201].
On Sunday 5 May 2024, the Giovinazzo parties served a supplementary court book (‘SCB’), relevantly containing five documents that had not previously been seen by RCL, four of which had previously been the subject of a legal professional privilege claim. There was no accompanying letter or email stating that the four documents had previously been the subject of a privilege claim and no explanation of why that claim was no longer being pressed.[47]
[47]Reasons, [202], [206], [207].
The trial commenced on Monday 6 May 2024.[48]
[48]Reasons, [209].
When RCL’s counsel opened its case on 6 May 2024 he emphasised the fact that the Giovinazzo parties’ version of the agreement — namely that the GPR shares were held on trust — was not supported by the contemporaneous documents. Counsel for RCL also stated that ‘when a solicitor sought to document the arrangement some two years later, which Mr Giovinazzo himself signs, Mr Billis doesn’t execute the document’. Counsel further submitted that the document signed by Mr Giovinazzo ‘looks nothing like’ what the Giovinazzo parties had pleaded.[49]
[49]Reasons, [208].
Counsel opened the case for the Giovinazzo parties in the afternoon of 6 May 2024. No party sought an order for witnesses out of court.[50]
[50]Reasons, [209], [210].
Mr Billis was called to give evidence on the morning of Tuesday 7 May 2024 and gave his evidence-in-chief orally. In his evidence-in-chief Mr Billis was not asked about, and did not give any evidence about, his dealings with Mr Christensen.[51]
[51]Reasons, [211].
Mr Billis’ cross-examination commenced before lunch on 7 May 2024 and continued until the following day, Wednesday 8 May 2024. In the course of his cross-examination, Mr Billis was asked about the meeting with Mr Giovinazzo and Mr Christensen. He agreed that a meeting had occurred, but denied various matters that were put to him about what occurred at the meeting, as follows:
(a)he denied that in the meeting he told Mr Christensen that ‘the loans were interest free’ and that he ‘wanted a date on which [he] could demand repayment’;
(b)he denied that he told Mr Christensen that ‘once the loans were repaid’, he would ‘give back all of the transfer forms, the GPR shares’ and certain other shares; and
(c)he denied that Mr Giovinazzo told Mr Christensen that he (Mr Giovinazzo) would repay Mr Billis and also give Mr Billis a share in GPR in his own right.[52]
[52]Reasons, [138].
When he was asked about the draft repayment plan produced by Mr Christensen, Mr Billis said this:
And I knew exactly what was going on, so I went to the meeting just to see how Mr Giovinazzo. And I came down and then they started dictating, they wanted to change the whole - more or less, change the whole original agreement. They’re going to give me this, they’re going to give me that, then I give them our valuable Golden Plains shares, for worthless shares of his. I wasn’t interested. Why should I change the original agreement, I have no desire to change it.[53]
[53]Reasons, [139].
He said that he had a quick read through the document, but that he was ‘not interested in doing this transaction, doing what they wanted’:
I don’t want to change our potential investment in Golden Plains Resources for worthless shares with are – wasn’t interested, I just want – I just want what ours is ours, what his is his. I didn’t want his rubbishy stock, trying to change over, change the original agreement.
Counsel for Mr Giovinazzo took Mr Billis to the deed attached to the email sent from Mr Christensen to Mr Giovinazzo on 22 April 2022, and forwarded to Mr Billis on 4 June 2022. Counsel put to Mr Billis that the deed reflected the state of the discussions at that time. Mr Billis said this:
I went there to the meeting. I sat down. I didn’t say very much. I just listened to their demands, what they want to do, and I did not agree with it. And I didn’t say nothing, and I walked out, and that’s about all. And they prepared these documents. They can prepare whatever they want to, but that is not the original agreement. And I’m – I’m not prepared to change the agreement down the track. I stick to my original word. They put all sorts of, ah, ah, standing over me.[54]
[54]Reasons, [141].
Mr Billis said that both Mr Giovinazzo and Mr Christensen were ‘putting pressure’ on him to sign the document and he said he would not sign it: ‘It’s not the deal that I’ve done’.[55] Counsel for Mr Giovinazzo then said that, ‘I think [your counsel] described, and I think maybe one of your witness statements does as well, that this was an effort to formalise what had been agreed’. Mr Billis responded:
No, we – we – he’s trying to resolve why he put that we are not beneficial owners, but I come down and they changed the whole game around and tried to put in these amounts and they had to change the original agreement. I refused to do it, so, I walked out.[56]
[55]Reasons, [141].
[56]Reasons, [142].
Counsel then put to Mr Billis that he and Mr Giovinazzo had met with Mr Christensen, they drafted an agreement and then they emailed it to Mr Billis on 4 June 2022. To this, Mr Billis answered, ‘Yes’.[57] Counsel then put to Mr Billis:
Can I suggest to you respectfully, that you attended the meeting with Mr Christensen and Mr Giovinazzo for the purpose of, as your counsel said, endeavouring to formalise what had been agreed, at the time you went to that meeting on the 4th or before 4 June 2022, you didn’t have it in your mind that you’d been misled or that the shares weren’t beneficially held. You went there to discuss formalising the loan agreement.
Mr Billis answered, ‘No.’[58]
[57]Reasons, [144].
[58]Reasons, [144].
Mr Billis said that after the meeting, Mr Christensen kept sending him different agreements to sign but he refused to sign them.[59] He said that, as a result of Mr Christensen’s conduct at the meeting, Mr Billis closed all communication with Mr Christensen and that he did not participate in the process of preparing the draft deed.[60]
[59]Reasons, [153]–[154].
[60]Reasons, [141], [153], [154].
At around 4:30 pm on Wednesday 8 May 2024, the judge decided to rise for the day and told Mr Billis he was still under cross-examination. His Honour later observed that Mr Billis’ evidence was ‘probably done but not certainly done’, because of various calls for production of documents.[61] Thus Mr Billis was not formally excused that afternoon.
[61]Reasons, [211].
The Court did not sit on Thursday 9 May 2024 or Friday 10 May 2024 because Ms Pendergast was not available to give evidence until Monday 13 May 2024 and the Court (and parties) considered that it was preferable not to interpose Mr Giovinazzo’s evidence before Ms Pendergast was called. The trial judge observed that it was not ideal for the Court not to sit on the Thursday or the Friday, but noted that the case was ‘going quicker than expected’.[62]
The application to call Mr Christensen
[62]Reasons, [214].
On Friday 10 May 2024, in the evening, the Giovinazzo parties’ solicitors wrote to the judge’s associate and to RCL notifying them of the Giovinazzo parties’ intention to seek leave to subpoena Mr Christensen (and another potential witness, Richard Davenport[63]) to give evidence. This was said to be in response to a number of matters raised by Mr Billis in his evidence. They also sought to put the substance of Mr Christensen’s evidence to Mr Billis before he was excused from cross-examination.[64] The email attached an outline of the evidence Mr Christensen was expected to give. As the judge observed, this was the first time RCL had been informed of the intention to seek to call Mr Christensen. There was no mention of the intention to seek to rely on additional documentary evidence.[65]
[63]The judge granted leave to adduce evidence from Mr Davenport.
[64]Reasons, [215].
[65]Reasons, [215].
The outline of expected evidence for Mr Christensen relevantly said as follows:
4. Meeting with Mr Billis and Mr Giovinazzo in early 2022
Mr Christensen will give evidence about a meeting he attended in around early 2022 with Mr Billis and Mr Giovinazzo, which was for the purposes of documenting the repayment of a loan.
He will say that at this meeting, he was told by both Mr Billis and Mr Giovinazzo that Mr Billis (through Resource Capital Limited) held its shares in GPR as security for loans he had advanced to meet GPR's earn-in commitments under the Fifield and Avondale earn-in agreements, to be exercised only in the event of a failure to repay the loans.
5. Drafting of the Repayment Deed.
Mr Christensen will say that, following the meeting referred to above, he began drafting a repayment deed to reflect the instructions given to him by Mr Billis and Mr Giovinazzo, and circulated several versions of that deed to Mr Billis and Mr Giovinazzo.
He will say that it was his idea that the shares in RCL should be transferred to Omeo Gold Pty Ltd, and that he discussed this idea with both Mr Billis and Mr Giovinazzo after the meeting.
He will say that, on 22 June 2022, when he circulated a draft repayment deed to Mr Giovinazzo (Tab 245), that document had been prepared on the basis of instructions given to him by Mr Billis and reflected those instructions.
6. Subsequent communications with Mr Billis.
Mr Christensen will say that, in around late June 2022, he received several phone calls from Mr Billis, in which Mr Billis raised two concerns, being that:
(a) Mr Giovinazzo had not called a shareholders meeting of Rimfire, for the purposes of causing Mr Ian McCubbing to be removed as its director; and
(b) Mr Giovinazzo and Mr Marino Sussich had misled Mr Billis in relation to Apple iSports Inc.
The Giovinazzo parties made their formal application for leave to call Mr Christensen on Monday 13 May 2024, supported by an affidavit of Robert Oxley dated that day (‘Oxley Affidavit’). Mr Oxley was a partner of the firm of solicitors acting for the Giovinazzo parties (Tisher Liner FC Law — ‘TLFC’). TLFC had been engaged to act for Mr Giovinazzo in late July 2022. The affidavit included evidence of TLFC’s communications with Mr Christensen before the start of the trial and on Friday 10 May 2024, as follows.
(a)In August 2022, Phoebe Langridge, a senior associate at TLFC, attempted to speak to Mr Christensen. On 29 August 2022 Mr Christensen sent an email to Ms Langridge stating that he was ‘somewhat averse’ to speaking with TLFC given his relationship with Mr Billis. His email requested information about what TLFC was going to ask him. Ms Langridge replied, saying that it would be his ‘background knowledge’ of Mr Giovinazzo and Mr Billis and their ‘entities’, GPR and its shareholding in Rimfire, and his ‘involvement in the preparation of the repayment deed’.
(b)On 1 September 2022, Mr Christensen replied to a follow-up email sent by Ms Langridge, stating ‘At present I do not intend having any discussions with you’.[66]
[66]Reasons, [218].
According to Mr Oxley’s affidavit, there was no further contact between TLFC and Mr Christensen until 10 May 2024, when Ms Langridge again contacted Mr Christensen. In relation to that conversation, Mr Oxley said as follows:
The substance of that conversation is privileged and by referring to it I do not intend to waive privilege over it. Later on 10 May 2024, TLFC served a statement of expected evidence of Mr Christensen.
The judge observed that the ‘obvious inference’ was that, having heard Mr Billis’ evidence, the solicitors contacted Mr Christensen again, upon which it seemed that his previous reluctance to give evidence had passed.
The affidavit did not explain why no attempt had been made earlier to subpoena Mr Christensen or why the application was being made so late in the proceeding, in light of the previous directions for the filing of evidence.[67]
[67]Reasons, [219].
The application to call Mr Christensen (and to undertake further cross-examination of Mr Billis in relation to Mr Christensen’s evidence) was heard on Monday 13 May 2024. RCL opposed the application.[68]
[68]Reasons, [221]–[222].
The judge refused the application to adduce evidence from Mr Christensen. We will return to his Honour’s reasons for doing so below.
Following the refusal of the application to adduce evidence from Mr Christensen, Mr Billis was asked further questions in cross-examination arising out of the production of documents that had been called for earlier. In accordance with the judge’s decision, the Giovinazzo parties did not put to Mr Billis the evidence that Mr Christensen was expected to give. Mr Billis was then excused without any re-examination.[69] Ms Pendergast was then called to give evidence and the plaintiff closed its case the same day.
[69]Reasons, [315].
Mr Giovinazzo began his evidence-in-chief on the afternoon of 13 May 2024. His evidence was completed on the morning of Wednesday 15 May 2024. The applicants’ final witness was Mr Davenport, whose evidence was also completed the same day.[70]
[70]Reasons, [221].
On 31 May 2024, the parties exchanged outlines of closing submissions. On 17 June 2024, the Court heard oral closing submissions.
The judge’s decision on the application to adduce evidence from Mr Christensen
As noted above, the judge refused the application to adduce evidence from Mr Christensen. He gave brief reasons at the time of refusal, and elaborated on those reasons in his ultimate decision.[71]
[71]Reasons, [225]–[238].
On the day of the hearing of the application the judge’s reasons were, in summary, as follows.
(a)The Giovinazzo parties had been on notice of the potential relevance of Mr Christensen’s evidence for a considerable period of time. The witness statements, which were required to be served by 3 March 2023, were designed to give the parties proper notice of the evidence to be adduced. The evidence that related to the dealings with Mr Christensen were addressed in part by Mr Giovinazzo’s statement. There was no witness statement from Mr Christensen.
(b)The Giovinazzo parties now sought to rely upon documents which passed between Mr Christensen and their legal representatives. Those documents had not been discovered, and the failure to discover them was not satisfactorily explained. Furthermore, there were further documents that passed between Mr Christensen and the Giovinazzo parties which still have not been discovered and which apparently were the subject of a claim for privilege.
(c)There was real prejudice that could affect RCL if Mr Christensen were permitted to be called, for two principal reasons.
(i)First, RCL’s evidence-in-chief had been given and had, subject to one matter, concluded. That evidence was given in light of the matters pleaded and in light of the material in the defendant’s witness statements, which did not include a statement from Mr Christensen. The additional evidence could only be ‘meaningfully evaluated or tested’ by reference to documents in possession of the defendants which had not been discovered.
(ii)Secondly, Mr Christensen was interstate, and was to be the subject of a subpoena. His evidence could only be meaningfully tested if a comprehensive record of the interactions between Mr Billis, Mr Giovinazzo, and Mr Christensen was available. But those interactions had not been the subject of complete discovery by the defendants, or the subject of third-party subpoenas.
In short, the attempt to adduce this evidence was too late and had an element of ambush about it. It was also likely to delay the completion of the proceeding, in circumstances where the matter had been set down for two weeks for a considerable period of time.
(d)Finally, the evidence was not of central importance to the issues in the case so as to warrant the significant risk of the trial being delayed.
In his written reasons the judge explained his decision as follows.
(a)Counsel for RCL had made forensic choices based upon the evidence that had been proposed to be led and the documents that had been discovered and included in the parties’ respective tender lists.[72]
(b)The extent of the disclosure with respect to Mr Christensen’s evidence was unclear and, in order for Mr Christensen’s evidence to have any utility or to be able to be tested, RCL would likely wish to inspect his files.[73]
(c)If it was the case that the Giovinazzo parties were taken by surprise by Mr Billis’ evidence, they ought not to have been, because the obvious inference to be drawn from documents in the court book was that the repayment deed was not prepared on Mr Billis’ instructions and that he did not agree with it, as evidenced by his refusal to sign it.[74]
(d)The failure to subpoena Mr Christensen at an earlier stage was not explained. The fact that Mr Christensen was initially not willing to speak with the solicitors for the Giovinazzo parties earlier was no barrier to serving a subpoena. Mr Christensen’s apparent change of heart after Mr Billis had given evidence did not excuse the failure to secure his attendance in a timely fashion.[75]
(e)The failure to give notice of the intention to call Mr Christensen until Mr Billis’ cross-examination had been completed, coupled with the late or non-existent provision of documents to RCL, meant that the Giovinazzo parties had the opportunity to deploy evidence at the time of their choosing, without proper notice and after RCL had made its forensic decisions. These matters gave rise to a denial of procedural fairness to RCL.[76]
(f)Having regard to the limited time available for the trial, calling Mr Christensen as a witness had the very real potential to result in the trial not being completed efficiently. That was particularly so given that there were issues concerning discovery that were not fully explained.[77] Any delay in the resolution of the matter worked to RCL’s very real prejudice for the reasons foreshadowed back on 15 March 2024. It had a legitimate interest in clarifying the status of its shareholding in GPR in a timely manner.[78]
(g)The relevance of the Mr Christensen’s evidence, which concerned a repayment deed that was not executed, was limited. The post-contractual conduct of parties may in some cases be relevant. But in this case there was no consensus as to the terms produced by Mr Christensen and, more importantly, Mr Christensen was seeking to document a new arrangement, not to document, 18 months later, the oral agreement entered into in or about September 2020. Thus the evidentiary weight to be attributed to the April to June 2022 discussions and communications with respect to the repayment deed is limited.[79]
[72]Reasons, [226].
[73]Reasons, [226].
[74]Reasons, [227].
[75]Reasons, [234].
[76]Reasons, [232].
[77]The judge accepted that the failure to make full discovery was inadvertent: Reasons, [236].
[78]Reasons, [235].
[79]Reasons, [237]–[238].
The judge’s decision in the proceeding
The judge delivered his decision in the proceeding on 6 September 2024. His Honour relevantly found as follows.
(a)At its core, the case concerned a dispute between Mr Billis and Mr Giovinazzo over control of GPR, which depended on whether the GPR shares were owned absolutely by RCL, or alternatively whether those shares were held by RCL on trust for Mr Giovinazzo. The resolution of these competing characterisations largely dictated the outcome of RCL’s oppression claim and determined the fate of the counterclaim brought by the Giovinazzo parties.[80]
(b)The evaluation of Mr Billis’ evidence called for a ‘nuanced assessment’ and required his evidence to be carefully evaluated against the contemporaneous documents in light of the overall probabilities that attach to the competing series of events.[81]
(c)The judge did not form a favourable impression of Mr Giovinazzo’s evidence. He considered that it was a ‘very well-rehearsed reconstruction of events informed by a post hoc analysis based on a diligent study of documentation and a keen appreciation of the evidence that would likely assist his case’. He said that Mr Giovinazzo’s evidence could only be accepted if corroborated by ‘reliable objectively contemporaneously created documents’.[82]
(d)The version of the arrangement asserted by RCL and supported by Mr Billis’ evidence was to be preferred.[83]
[80]Reasons, [10]–[12].
[81]Reasons, [317]–[318].
[82]Reasons, [325].
[83]Reasons, [345].
The judge concluded as follows:
In fact, the transaction was a simple one; Mr Billis through his corporate entities funded the performance of GPR’s obligations under the Rimfire Agreements and the acquisition of GPR’s shares in Rimfire. As a consequence, Mr Billis sought and obtained control of GPR via the issue of the GPR shares. Mr Billis’ entities lent the money interest free from October 2020 to May 2022 to fund GPR’s obligations to Rimfire as the GPR financial statements show. Mr Billis was disinterested in recovering the money advanced from GPR because RCL was its controlling shareholder.
The obvious likelihood is that by early 2022, Rimfire’s value had increased significantly from 2020 … This gave rise to a powerful incentive for Mr Giovinazzo to seek to effect repayment of the debt probably with the aid of a financial backer and obtain full control of GPR. As a result I consider that Mr Giovinazzo has sought to characterise events in a quite different way to that which actually occurred so as to confer benefit on Mr Giovinazzo.
I reject Mr Giovinazzo’s attempt to do so; I accept Mr Billis’ account. RCL advanced the money to GPR on the basis that it acquired control of GPR which it did when it was issued with 990 shares in GPR. RCL does not hold those shares on trust for Mr Giovinazzo.[84]
[84]Reasons, [370]–[373].
In light of the judge’s conclusion on the critical question, he went on to hold as follows.
(a)Mr Giovinazzo was not validly appointed a director of GPR from 30 June 2021 and was, in any event, removed as a director on 18 July 2022 by circulating resolution executed by RCL and Pendergast.[85]
(b)The purported share issue on 19 July 2022 was invalid.[86]
(c)The subsequent loans between Omeo Gold and GPR were invalid, including because Mr Giovinazzo was never properly appointed director of GPR and because entry into those loans was otherwise oppressive.[87]
[85]Reasons, [405], [407].
[86]Reasons, [408]–[409], [422] (this was conceded if the judge held that RCL held the GPR shares absolutely).
[87]Reasons, [435], [437]–[447].
On 12 September 2024, the judge made final orders giving effect to his reasons.
The parties’ submissions on the appeal
The applicants’ submissions
The Giovinazzo parties contended that the critical question in the proceeding — namely whether RCL held its shares absolutely or on trust — concerned an oral agreement between Mr Billis and Mr Giovinazzo. They contended that the judge had reservations about the oral evidence given by each of Mr Billis and Mr Giovinazzo, and that the documentary evidence relevant to the critical question was limited and equivocal. They submitted that, in these circumstances, the interests of justice required that the judge have regard to all relevant and admissible evidence on the critical question, particularly where that evidence that was capable of corroborating or contradicting one or the other party’s account.
The Giovinazzo parties submitted that, had Mr Christensen been called, he was expected to say that at the March 2022 meeting, ‘both Mr Giovinazzo and Mr Billis instructed him that RCL held its shares in GPR as security for loans Mr Billis had advanced to meet GPR’s earn-in commitments, to be exercised only in the event of a failure to repay the loans’. Following this meeting, Mr Christensen began drafting a deed ‘to reflect the instructions given to him by both Mr Billis and Mr Giovinazzo’. That evidence, if given and accepted, would have corroborated the Mr Giovinazzo’s account and contradicted Mr Billis’ account on the ‘critical question’. It would have proved that Mr Giovinazzo’s evidence was not a ‘post hoc’ reconstruction.[88]
[88]Cf Reasons, [325].
The Giovinazzo parties submitted that the court’s power to refuse evidence must be exercised in accordance with procedural fairness and cannot be used to deny it.[89] They accepted that the interests of justice may require the exclusion of evidence that is inexplicably late and of limited or no probative value,[90] or which would cause significant and irremediable prejudice to a party,[91] or serious disruption to the litigation.[92] But, they submitted, there are limits.
[89]They involved both the court’s inherent power and its statutory power, found in s 47 of the Civil Procedure Act 2010.
[90]Referring to Eaton v ISS Catering Services Pty Ltd (2013) 42 VR 635; Wilson v Bauer Media [Ruling No 1] [2017] VSC 302 (John Dixon J); Rush v Nationwide News Pty Ltd [No 4] [2018] FCA 1558 (Wigney J).
[91]Referring to Mobile Innovations Limited v Vodafone Pacific Limited [2003] NSWSC 309 (Einstein J).
[92]Referring to Thomas v Powercor Australia Ltd [Ruling No 3] [2011] VSC 391 (J Forrest J); Attorney-General of Botswana v Aussie Diamond Products Pty Ltd [No 2] [2009] WASC 301 (Murphy J).
The Giovinazzo parties submitted that it is not in the interests of justice for a court to refuse to hear evidence on which a just determination of a proceeding may depend — in particular that is so where the explanation for calling the evidence is reasonable and where calling the evidence would not cause substantial delay, wasted costs, or unfair and irredeemable prejudice.[93] Prohibiting such evidence is antithetical to the exercise of judicial power because it places the court in the intolerable position of deciding a case ‘artificially’, with ‘a known and potentially important piece of the puzzle put to one side’.[94] To do so ‘risks incorrect and unjust outcomes’ and is prone to undermine the integrity of the administration of justice and public confidence in the judicial system.
[93]Referring to Primrose Meadows Pty Ltd v River View Pty Ltd [2017] VSC 487, [45]–[47] (Croft J).
[94]Referring to N M Rural Enterprises Pty Ltd v Rimanui Farms Ltd [2011] NSWSC 1561, [61] (Harrison J); Clifford v Vegas Enterprises Pty Ltd [No 4] [2010] FCA 326, [8]–[12] (Barker J).
The Giovinazzo parties contended that the judge made the following errors in relation to his decision to refuse the application to adduce evidence from Mr Christensen.
(a)First, the judge erred in finding that Mr Christensen’s expected evidence was of ‘limited relevance’ by reference to principles governing the admissibility of post-contractual conduct. That was because the evidence was an admission against interest made by Mr Billis on the critical question. The evidence tended to prove that it was Mr Billis’ account of the oral agreement and not Mr Giovinazzo’s that was a ‘post hoc reconstruction’ of events. Because the case turned on credit, evidence given by a solicitor on subpoena ought to have been given significant weight.
(b)Secondly, the judge erred in finding that there had been no change in Mr Billis’ evidence and that Mr Billis’ evidence was in response to the late production of a ‘third party’ document.[95] They contended that RCL made a forensic choice not to elicit evidence from Mr Billis in his evidence-in-chief about his dealing with Mr Christensen. They contended that in cross-examination Mr Billis said for the first time that Mr Christensen had, in effect, acted in concert with Mr Giovinazzo to seek to coerce him into signing a deed with which he did not agree. This, they contended, was contrary to Mr Billis’ witness statement, upon which the Giovinazzo parties were entitled to rely — and once evidence contrary to that statement was given, the interests of justice required that they be permitted to call evidence in response.
(c)Thirdly, the judge erred in finding that the failure to subpoena Mr Christensen at an earlier stage was unexplained.[96] The explanation given was that Mr Christensen had refused to speak with the Giovinazzo parties’ solicitors until Friday 10 May 2024, the very day on which the Giovinazzo parties informed the court and RCL that they intended to seek leave to call Mr Christensen and provided an outline of his expected evidence. They contended that the judge was wrong to find that the Giovinazzo parties’ conduct meant that they had the opportunity to deploy Mr Christensen’s evidence ‘at the time of their choosing’, because they did not control whether or when Mr Christensen would cooperate. They contended that it would be contrary to the interests of justice to expect a party to ‘blindly’ subpoena a witness who refuses to speak to that party, where the substance of their evidence is not known, under threat that if the prospective witness later cooperates and discloses relevant evidence, that evidence may be excluded.
(d)Fourthly, the judge erred in finding that calling Mr Christensen would cause unfair prejudice to the Billis parties and in failing to consider whether any such prejudice was repairable. They contended that Mr Billis had given his evidence under oath, and it cannot be assumed that his evidence would have been any different had he known Mr Christensen would be called. Further, the judge erred in treating the application as one to ‘reopen’ and to ‘recall’ Mr Billis, because he had not at that time been excused.
(e)Finally, the judge was said to have erred in finding that Mr Christensen had the ‘very real potential’ to result in the trial ‘not being completed efficiently’, in circumstances where the trial ran over two sitting weeks but the court only sat for three days in each week and closing submissions occurred in the following month. Any delay would have been insubstantial, which is insufficient.[97]
[95]Reasons, [227]–[220], [313].
[96]Reasons, [231].
[97]Referring to Northern Health v Kuipers [2015] VSCA 172, [28] (Kyrou and McLeish JJA).
The Giovinazzo parties concluded by contending that the judge had denied them procedural fairness by shutting out Mr Christensen’s evidence.
In addition, the Giovinazzo parties sought leave to adduce further evidence on the appeal, by way of an affidavit from Ms Langridge affirmed 23 October 2024 concerning her conversations with Mr Christensen on Friday 10 May 2024 (‘Langridge affidavit’).
The respondents’ submissions
The Billis parties’ submitted that the application for leave to appeal concerns an interlocutory ruling, on a matter of practice and procedure, so that the standard of appellate review is the House v The King[98] standard and intervention requires sufficient doubt attending the decision and substantial injustice to a party. They contended that the sole ground of appeal is directed to the judge acting on a wrong principle, or perhaps making a decision that was ‘unreasonable or plainly unjust’ in the House sense, and that no proposed ground of appeal suggested any other form of error, including any mistake of fact. Thus, they contended, the judge’s ‘findings all stand’.
[98](1936) 55 CLR 499; [1936] HCA 40.
The Billis parties submitted that it was in the interests of justice that the application to adduce evidence from Mr Christensen be refused. They contended that the judge’s decision was both open and correct. That was because granting leave to subpoena Mr Christensen to give evidence could cause ‘real prejudice’ to the respondents in circumstances where Mr Billis had given evidence without knowledge of what Mr Christensen was expected to say and without relevant discovery. Indeed, the applicants’ conduct in seeking to deploy Mr Christensen after Mr Billis had all but concluded his evidence constituted a denial of procedural fairness to the Billis parties. Further, granting leave to subpoena Mr Christensen would have ‘derailed’ the trial, because Mr Christensen could not be cross-examined without proper discovery. No proper assessment of Mr Christensen’s expected evidence was possible at the time of the application, because the Giovinazzo parties were maintaining a claim for privilege over what Mr Christensen had told them and over some of this documents.
The Billis parties also observed that the Giovinazzo parties’ explanation about the timing of their application was incomplete.
Furthermore, r 64.37 of the Supreme Court (General Civil Procedure) Rules 2015 provides that unless in the opinion of the Court of Appeal some substantial wrong or miscarriage has been occasioned in the trial, a new trial shall not be granted on the ground of the improper rejection of evidence. This emphasises that a new trial does not follow ‘as of right’ when evidence has been improperly rejected.[99]
[99]Referring to Brown v Churchill (2006) 31 WAR 246, 263 [58] (Pullin JA); [2006] WASCA 17; The Waterways Authority v Fitzgibbon (2005) 221 ALR 402, 410 [36] (Kirby and Heydon JJ); [2005] HCA 57, quoting Dakhyl v Labouchere [1908] 2 KB 325, 327 (Loreburn LC).
The Billis parties contended that the judge’s reasons displayed no error. They said that the judge made the ‘unchallenged finding’ that calling Mr Christensen could occasion ‘real prejudice’ to them. Mr Billis had given evidence not knowing what Mr Christensen was to say and without full discovery, which meant that to permit the calling of him at that late stage would be to deny the Billis parties procedural fairness. This finding, they contended, is fatal to the application for leave to appeal. They also emphasised the likely effect that calling Mr Christensen would have on the conduct of the trial.
The Billis parties also submitted that the Giovinazzo parties failure to give a candid explanation about their late decision to seek to call Mr Christensen was fatal to the application. The contended that the timing of the application was ‘the product of tactical or strategic decisions’ by the Giovinazzo parties. The failure to subpoena Mr Christensen at an earlier stage was never explained. Furthermore, the fact that Mr Christensen was not willing to speak to the Giovinazzo parties’ solicitors earlier was no barrier to serving a subpoena. Nor did the contents of the Oxley Affidavit support the submission now made that the ‘availability and substance’ of Mr Christensen’s potential evidence only became known on 10 May 2024. The Oxley Affidavit also failed to address the apparent lack of communication with Mr Christensen since September 2022 or whether the applicants had accessed Mr Christensen’s file, which they were entitled to do as Mr Christensen’s clients. The judge’s findings about these matters alone would provide a sufficient basis for refusing the application.
Finally, the Billis parties disputed the Giovinazzo parties’ submission that Mr Christensen’s evidence was ‘relevant to, and could have been determinative of the “critical question”’. They contended that Mr Christensen was a ‘peripheral figure’ in the key event, because he was seeking to document a new arrangement — not to document, some 18 months later, the original oral agreement. The Billis parties contended that the particular potential evidence on which the Giovinazzo parties place emphasis — that Mr Christensen will say that at the March 2022 meeting ‘he was told by both Mr Billis and Mr Giovinazzo that Mr Billis (through Resource Capital Limited) held its shares in GPR as security for loans he had advanced to meet GPR’s earn-in commitments under the Fifield and Avondale earn-in agreements, to be exercised only in the event of a failure to repay loans’ — would have been at odds with the evidence of Mr Billis, the evidence of Mr Giovinazzo and the contents of an email sent by Mr Christensen the day following the meeting. In particular, they pointed to Mr Giovinazzo’s evidence that ‘Anton had one view, I had another view, and Lee was trying to prepare a deed that brought the two things together’.
The Billis parties concluded by submitting that the judge’s decision was not ‘unreasonable or plainly unjust’. There is no proper basis to conclude that there has been a substantial injustice by reason of the refusal to give leave to subpoena Mr Christensen.
In relation to the Giovinazzo parties’ application to adduce further evidence on the appeal, the Billis parties opposed that application.
Consideration
The application to adduce further evidence
It is appropriate to deal first with the Giovinazzo parties’ application to adduce further evidence, namely the Langridge affidavit and the exhibits thereto.
Relevantly for present purposes, Ms Langridge said as follows:
4. On about 9 May 2024, I was informed by Mr Giovinazzo that Lee Christensen, an Australian Legal Practitioner and the Principal of the law firm CX Law, was willing to speak with Mr Giovinazzo’s legal team in relation to Mr Giovinazzo’s dispute with Anton Bill is that was the subject of the Proceeding. Mr Christensen is based in Perth, Western Australia. He had previously declined to speak with me when I attempted to contact him in 2022 …
5. On 10 May 2024, I attended a Zoom conference with Mr Christensen and Mr Porteous of Counsel, Junior Counsel briefed by Mr Giovinazzo in the Proceeding. The call commenced at 2.00pm (Melbourne time) and finished at about 2.30pm. At no time during the call, did I or Mr Porteous convey to Mr Christensen the substance of the evidence that Mr Billis had given in the Proceeding. As is my practice, during the call I took a contemporaneous file note which I typed and then sent to my Principal by email after the call …
Ms Langridge also exhibited to her affidavit her file note of the first such conversation, a draft outline of expected evidence that she sent to Mr Christensen, and a final version of the outline of expected evidence that she sent to RCL’s solicitors and the Court that evening.
The Giovinazzo parties contended that the further evidence was relevant to what they characterised as an implied finding by the judge that the Giovinazzo parties’ legal representatives had conveyed the substance of Mr Billis’ evidence to Mr Christensen (the ‘suggested implication’), which they would not have been permitted to do had Mr Christensen’s evidence been foreshadowed earlier and had RCL, as a result, sought an order for witnesses out of court.
The implied finding was said to arise from the following statement by the judge:
It is tolerably clear that the Giovinazzo Parties went back to Mr Christensen after hearing Mr Billis’ evidence including in respect of the subject matter of the previously privileged documents. They did so unfettered by the restrictions which would have arisen from an earlier order for witnesses out of court, which had not been sought by RCL, no doubt influenced by the notice that had been given by the Giovinazzo Parties of the witnesses that they intended to call which did not include Mr Christensen.[100]
[100]Reasons, [233].
In oral argument, senior counsel for the Giovinazzo parties made clear that the only purpose for which they sought to adduce the further evidence was to ‘scotch’ what they described as a ‘sinister possibility’ that the lawyers for the Giovinazzo parties had conveyed the gist of Mr Billis’ evidence to Mr Christensen.
In light of that clarification, the Billis parties did not oppose this Court admitting into evidence paragraphs 4 and 5 of the Langridge affidavit for the sole purpose of rebutting the suggested implication. However, they contended that the suggested implication is not one that ought to be drawn from the judge’s reasons. In addition, they opposed admission of the remainder of the Langridge affidavit or any of the exhibits.
We do not consider that the suggested implication is properly to be drawn from the judge’s reasons. In the paragraph in which his Honour made the relevant remark he said that the ‘Giovinazzo parties went back to Mr Christensen’.[101] The term ‘Giovinazzo parties’ is defined by his Honour to mean Mr Giovinazzo and Omeo Gold.[102] Elsewhere in his reasons the judge refers to the Giovinazzo parties’ solicitors.[103] Thus we do not consider that the relevant paragraph, which refers to the Giovinazzo parties, contains the suggested implication, which is said to concern the solicitors.
[101]Reasons, [233] (emphasis added).
[102]Reasons, [4].
[103]See, eg, Reasons, [184], [202], [217], [218].
Nonetheless, to put the matter beyond doubt, and given that the Giovinazzo parties consented to the admission of paragraphs 4 and 5 of the Langridge affidavit for this limited purpose, we would admit those paragraphs and find that neither Ms Langridge nor Mr Porteous conveyed to Mr Christensen the substance of Mr Billis’ evidence.
We emphasise that this is not a finding that no one conveyed to Mr Christensen the substance of Mr Billis’ evidence. Ms Langridge’s evidence concerns only her and Mr Porteous. She also said that on 9 May 2024 (the day after Mr Billis’ evidence had, in substance, concluded) she was informed by Mr Giovinazzo that Mr Christensen was willing to speak with TLFC in relation to the proceeding. The only available inference from this statement is that Mr Giovinazzo had been in communication with Mr Christensen on or before 9 May 2024. No evidence has been proffered about that communication and, in particular, about the precise date on which it occurred and whether Mr Giovinazzo told Mr Christensen anything about Mr Billis’ evidence.
Finally, we note for completeness that the outline of expected evidence for Mr Christensen was, it appears, inadvertently before this Court only as an exhibit to the Langridge affidavit. It was, of course, before the judge. The parties agreed that it was proper to for us to have regard to it and that the version found attached the Langridge affidavit could be used for the purposes of the application for leave to appeal.
The proposed ground of appeal
We turn now to the proposed ground of appeal, namely that the judge’s refusal of the Giovinazzo parties’ application to call Mr Christensen as a witness was a denial of procedural fairness. However, a breach of procedural fairness can only be made out in the present case if the judge’s exercise of the discretion miscarried in some way.
The Giovinazzo parties accepted that the judge’s decision to refuse the application to call Mr Christensen was an exercise of a discretion, and a decision concerning a matter of practice and procedure. Thus they needed to demonstrate an error of the kind identified in House v The King.[104] That is, the Giovinazzo parties were required to demonstrate an error of principle or fact, or otherwise demonstrate that the decision was unreasonable or plainly unjust.[105]
[104](1936) 55 CLR 499; [1936] HCA 40.
[105]House v The King (1936) 55 CLR 499, 505 (Dixon, Evatt and McTiernan JJ); [1936] HCA 40.
In that regard, as set out above, the Giovinazzo parties alleged various specific errors by the judge. It is not entirely clear what the character of each error is, in terms of the House v The King taxonomy. Some alleged errors appear to be errors of fact, others might be errors of principle. More generally, the Giovinazzo parties relied upon ‘the ultimate way of showing a miscarried direction’, namely that the decision was unreasonable or plainly unjust.
The first alleged error was that the judge misjudged the importance of the evidence, in that he considered it to be of ‘limited weight’, when in fact it ought to have been given ‘significant weight’. In that regard, the Giovinazzo parties contended that the judge erred in finding that the reasoning in Hightime Investments Pty Ltd v Adamus Resources Ltd[106] and County Securities Pty Ltd v Challenger Group Holdings Pty Ltd[107] — that post contractual conduct may be of ‘significant weight’ in finding whether alleged oral promises were made — did not apply.
[106][2012] WASC 295, [98]–[99] (Edelman J) (‘Hightime’), citing Mears v Safecar Security Ltd [1983] QB 54, 77 [117] (Stephenson LJ); The Bell Group (in liq) v Westpac Banking Corporation [No 9] (2008) 39 WAR 1, 316 [2668] (Owen J); [2008] WASC 239; Fazio v Fazio [2012] WASCA 72, [192]–[195] (Murphy JA, Newnes JA agreeing at [14], Pullin JA agreeing in part at [13]).
[107][2008] NSWCA 193, [24] (Spigelman CJ, Beazley JA agreeing in part at [65]–[66]) (‘County Securities’).
In his oral reasons, the judge described Mr Christensen’s evidence as ‘not without importance’, but ‘not of central importance’. That description was, in our view, entirely apt. It is necessary to bear steadily in mind that the ‘critical question’ was the terms of an oral agreement reached in a conversation between Mr Billis and Mr Christensen in September 2020. The evidence that the Giovinazzo parties considered they would be able to adduce from Mr Christensen, even taken at its highest, was not direct evidence about the nature or terms of the September 2020 agreement. Rather, it was evidence given by a third party of a conversation that occurred some 18 months after the September 2020 agreement. Furthermore, the evidence was to be adduced some two years after the conversation in question and appeared not to be reflected in any relevant contemporaneous documents that had been discovered or otherwise produced by the Giovinazzo parties.
In his written reasons, the judge said that he accepted that ‘subsequent conduct may be a relevant matter to consider in finding whether as a fact alleged oral promises were made and that depending on its content, such conduct may be a matter of significant weight in determining the subject matter of the alleged oral contract’.[108] He referred to Hightime[109] and County Securities.[110] His Honour went on to say that care was required in applying that line of reasoning to the circumstances in the present case, for two reasons:
(a)first, because of the absence of agreement to the terms produced by Mr Christensen; and
(b)secondly because, on all parties’ versions of events, Mr Christensen was seeking to document a new arrangement, not to document, 18 months later, the oral agreement entered into in September 2020.[111]
[108]Reasons, [237].
[109][2012] WASC 295, [98]–[99] (Edelman J).
[110][2008] NSWCA 193, [24] (Spigelman CJ).
[111]Reasons, [238].
There was no challenge to the correctness of those two propositions. Rather, the Giovinazzo parties contended that they showed that the judge had ‘misjudged the importance of the evidence’.
While the judge did not, in his written reasons, refer to Mr Christensen’s expected evidence as showing an admission against interest, we do not accept that his Honour failed to understand that this was one of the ways in which the Giovinazzo parties sought to deploy Mr Christensen’s evidence. That is because, in the course of the hearing of the application, counsel for the Giovinazzo parties said to the judge that the statements Mr Christensen would say that Mr Billis made to him were ‘in effect admissions against interest by Mr Billis’. That statement was made only minutes before the judge delivered his ruling.
For these reasons, we do not consider that the judge made any error in his evaluation of the import, or the importance, of Mr Christensen’s expected evidence.
The second alleged error was that the judge erred in finding that the interests of justice did not require that the Giovinazzo parties be given the opportunity to call Mr Christensen because there had been no change in Mr Billis’ evidence, and that Mr Billis’ evidence was in response to the late production of a ‘third party’ document. The Giovinazzo parties contended that the evidence Mr Billis gave about the meeting with Mr Christensen in cross-examination conflicted with his account of that meeting in his witness statement. In oral argument, counsel for the Giovinazzo parties described Mr Billis’s oral evidence as ‘the exact opposite’ of what he had said in his witness statement. On that basis, the Giovinazzo parties sought to characterise Mr Christensen’s expected evidence as ‘rebuttal evidence in response to a change in case’.
We accept that there were differences between Mr Billis’ evidence about the meeting with Mr Christensen and the description of that meeting contained in his witness statement. However, we do not accept that those differences reveal a direct conflict between the two accounts. The account in Mr Billis’ witness statement was brief and did not include any statement about what happened during the meeting. In contrast, in cross-examination Mr Billis gave a more detailed account of what occurred during the meeting. This account went beyond the account in his witness statement, but it was not directly inconsistent with it. The differences were by way of omission, rather than direct contradiction.
Furthermore, aspects of Mr Billis’ evidence concerning what happened at the meeting were to some extent consistent with his witness statement that he had ‘decided not to confront Giovinazzo immediately about the fact that RCL’s 990 shares in GPR were recorded as being not beneficially held by RCL’, that he was ‘concerned that Giovinazzo had pulled the wool over my eyes from the very start’ and that he ‘wanted to see if something could be done’.[112] His evidence was also consistent with some of the contemporaneous emails in which he refused to sign any of the draft deeds.
[112]Reasons, [145].
As for the proposition that Mr Billis’ evidence was responsive to a document only recently produced by the Giovinazzo parties, the judge found that there were late documents produced by the Giovinazzo parties relevant to the meeting in question. In that regard, a SCB was produced by the Giovinazzo parties on Sunday 5 May 2024, the day before the trial commenced.[113] The SCB contained various documents that had not previously been provided to RCL.[114] Some had not been discovered, others had been discovered but had not been produced due to a claim of legal professional privilege. One of the documents in the SCB was the email from Mr Christensen to Mr Giovinazzo on 22 June 2022, which read ‘Spoke to Anton yesterday. The attached is drafted in accordance with his instructions. Please feel free to discuss’.[115] Other documents, which had never been discovered, were invoices prepared by CX Law, and an email from Mr Christensen to Mr Giovinazzo concerning one of the invoices.[116]
[113]See above, [44]; Reasons, [202].
[114]Reasons, [207].
[115]Reasons, [152].
[116]Reasons, [207].
The Giovinazzo parties contended that it was not appropriate to describe the 22 June 2022 email as ‘late discovered’, and as ‘provided to RCL for the first time’, because it had in fact been in the possession of the Billis parties since July 2022. They pointed to a letter that the Billis parties’ solicitors had sent to the Giovinazzo parties’ solicitors on 29 July 2022, which referred to the ‘draft Deed attached to Mr Christensen’s email to Mr Giovinazzo on 22 June 2022’.[117] Thus, they said, there was no surprise for Mr Billis in relation to that document. They also contended that a similar statement was found in an email from Mr Christensen to Mr Billis, which had been discovered.
[117]Reasons, [179].
In response, counsel for the Billis parties said he had no instructions about whether the email referred to in the solicitors’ letter was the same email that was included in the SCB on 5 May 2024. He said that, even if it was the same email, nonetheless it had not previously been included in the court book and the judge did not err in describing it as not having been produced until 5 May 2024.
Ultimately, we do not consider it necessary to resolve whether the Billis parties’ solicitors already had the 22 June 2022 email in July 2022. That is because the judge’s reference to the 22 June 2022 email was a passing reference which was not, in our view, central to his Honour’s reasoning.[118] The broader point was that the Giovinazzo parties had produced documents for the first time on the eve of the trial (which was undoubtedly true) and had cross-examined Mr Billis by reference to those documents. The judge gave the 22 June 2022 email as an example. But even if the judge was in error in relation to the example he gave, there were other documents that were undoubtedly late produced.[119] The error was thus not material.
[118]Reasons, [228].
[119]Reasons, [229].
More importantly, the judge went on in the next paragraph to observe that, at the time of the application, the Giovinazzo parties had not provided RCL with copies of still other documents over which privilege had been claimed — which was again correct.[120] His Honour then observed that, when such documents were produced, they made it ‘even clearer that Mr Christensen was taking instructions from Mr Giovinazzo, not Mr Billis’ (contrary to the manner in which the Giovinazzo parties had run their case to that point) and that Mr Billis had expressed his dissatisfaction with the repayment deed as early as 6 June 2022 (in an email recording his disagreement with the repayment deed draft).[121] There is no real dispute that the judge was correct in this observation. The Giovinazzo parties accepted that the claims for legal professional privilege were part of the background to which the judge was properly directed and that his Honour was entitled to take this into account in his evaluation of whether to grant the application to call Mr Christensen.
[120]Reasons, [230]. Additional documents, over which legal professional privilege had previously been claimed, were produced by the Giovinazzo parties on 15 May 2024.
[121]Reasons, [230].
Finally, it is relevant to note that, in the course of the application to the judge, counsel for the Giovinazzo parties contended that they were taken by surprise by Mr Billis’ evidence concerning his interactions with Mr Christensen. Counsel said this:
The first time that anyone has suggested that those emails — the one for example where Mr Christensen says to Mr Billis, ‘This reflects our conversation’ — the first time anyone has said that that was false or that they were not seeking to document the agreement was when Mr Billis sat in that witness box.
Counsel later said that when Mr Christensen said, in an email, ‘This reflects what we’ve discussed’, he ‘expected Mr Billis would agree with that’.
But, as the contemporaneous documents revealed, only a few days later Mr Billis responded to Mr Christensen saying ‘no, no, no’. The detail of the emails is as follows.
(a)The first occasion on which Mr Christensen had, by email, suggested that the draft deeds were prepared in accordance with Mr Billis’ instructions, was an email of 4 June 2022. By that email, Mr Christensen forwarded to Mr Billis an email he had previously sent to Mr Giovinazzo. The email to Mr Giovinazzo said ‘Please find attached a very draft deed … of the matters we have discussed’.[122] We pause to note that it is entirely unclear whether the reference to matters being discussed is a reference to a discussion between Mr Christensen and Mr Giovinazzo (which is the more natural reading), or to a discussion between Mr Billis, Mr Christensen and Mr Giovinazzo. In any event, on 6 June 2022 Mr Billis responded saying that he did not agree with that draft.[123]
(b)The next email, in which a suggestion was made that a draft deed had been prepared in accordance with Mr Billis’ instructions, was sent on 22 June 2022 — to Mr Giovinazzo, not to Mr Billis.[124] That version of the deed was sent to Mr Billis on 27 June 2022, expressed as being ‘subject to your approval’ and requesting instructions and comments. Having received no reply, Mr Christensen followed up on 28 June 2022, saying ‘Mike has signed the document I sent you - are you still happy with it in which case I will forward to you for execution’.[125] Mr Billis replied the same day ‘NO NO NO’. Mr Christensen responded to that email saying that ‘it was drafted consistent with our last discussion’, to which Mr Billis replied ‘NO NO NO. Lee I am not a Donkey’.[126]
[122]Reasons, [140].
[123]Reasons, [159], [230].
[124]Reasons, [152].
[125]Reasons, [153]–[154].
[126]Reasons, [154].
Mr Billis’ disagreement with Mr Christensen’s emails thus ought not have been a surprise to counsel for the Giovinazzo parties.
The third alleged error was that the judge erred in finding that the failure to subpoena Mr Christensen earlier was unexplained. We do not accept this submission. The evidence before the judge in support of the application was the Oxley Affidavit. In that affidavit Mr Oxley gave evidence about the initial contact between TCFL and Mr Christensen in late August and early September 2022, and then evidence about the fact that Ms Langridge contacted Mr Christensen on 10 May 2023. His evidence provided some explanation as to why no witness statement had been obtained from Mr Christensen. But it did not explain why Mr Christensen had not been subpoenaed at an earlier point in time, so as to give notice to the Billis parties that Mr Christensen was to be called as a witness. The affidavit was simply silent on the question of a subpoena prior to trial. Rather, it was directed to the attempts to obtain Mr Christensen’s voluntary participation.
Contrary to the Giovinazzo parties submission, this was not a case where they were expected to ‘blindly’ subpoena Mr Christensen in the face of his refusal to speak to their solicitors, and where the substance of his evidence was unknown. Mr Giovinazzo was at the meeting in March 2022, and so would have had some expectation about what Mr Christensen would say. Furthermore, Mr Giovinazzo had been in contact with Mr Christensen between the date on which Mr Christensen said he would not speak with TLFC and the commencement of the trial.[127] Thus it would have been possible for Mr Giovinazzo to discuss with Mr Christensen what he might say about the March 2022 meeting. There was no evidence concerning whether Mr Giovinazzo attempted to discuss these issues with Mr Christensen or, if he did, whether those attempts were rebuffed. In circumstances where Mr Christensen was not called, we would not infer from the fact that Mr Christensen initially declined to speak with TLFC that he would have or did refuse to discuss the March 2022 meeting with Mr Giovinazzo prior to the trial.
[127]In October 2022 Mr Christensen emailed to Mr Giovinazzo various documents, which were then discovered in the proceeding. The documents themselves were not before this Court. But it appears that they were documents held by CX Law that were relevant to the proceeding. Thus we infer that Mr Giovinazzo asked Mr Christensen for such documents and Mr Christensen cooperated with that request.
Nor do we consider that the judge was wrong to conclude that the Giovinazzo parties’ conduct meant that they had the opportunity to deploy Mr Christensen’s evidence at a time of their choosing, without proper notice. That is what they sought to do. The fact that they did not control ‘whether or when Mr Christensen would cooperate’ was not to the point, given their ability to issue a subpoena to him to appear and give evidence.
The fourth alleged error concerned the judge’s conclusion that permitting the Giovinazzo parties to call Mr Christensen would result in unfair prejudice to the Billis parties. This finding was plainly open to the judge, given that the Billis parties had conducted their case on the basis that Mr Christensen would not be called to give evidence, without any advance notice of what he might say if he were to be called, without full discovery of documents and without production of Mr Christensen’s file (if any). In that regard, the judge was correct to observe that the late calling of Mr Christensen ‘had an element of ambush about it’.
It is no answer to this aspect of his Honour’s reasons to say that Mr Billis had given evidence on oath and it could not be assumed that his evidence would be any different had he known that Mr Christensen would be called. Of course it is true that Mr Billis gave evidence under oath — but he did so in relation to events that occurred some two years earlier; had there been a witness statement from Mr Christensen, and/or additional documents concerning the March 2022 meeting, his recollection of what occurred might have been different. It is commonplace for witnesses’ recollection to be influenced by evidence that others give and by contemporaneous documents.
The Giovinazzo parties submitted that, given the emails from Mr Christensen to Mr Giovinazzo and Mr Billis, of which the Billis parties were aware, and which contained statements to the effect that the draft repayment deeds were drafted in accordance with Mr Billis’ instructions, Mr Christensen’s expected evidence could not be said to have come as a surprise to Mr Billis. We do not accept that submission. Mr Billis had never previously accepted that Mr Christensen had drafted the repayment deeds based on Mr Billis’s instructions.
It is apparent from the contemporaneous emails, described above, that Mr Christensen had made remarks to that effect, but that Mr Billis had always responded in negative terms to those emails. He refused to agree with Mr Christensen’s proposed draft repayment deeds and his email responses can be understood as refuting any suggestion that he had given instructions to the effect reflected in the deeds. In those circumstances, Mr Billis might well be surprised to hear, at the conclusion of his evidence, that Mr Christensen was expected to give evidence that at the meeting in March 2022, Mr Billis had said to Mr Christensen that the shares were held as security.
The Giovinazzo parties further submitted that any unfairness to the Billis parties would be addressed by them putting the gist of Mr Christensen’s expected evidence to Mr Billis in cross-examination. They further submitted that an application could have been made to stand the matter down so that Mr Billis could consider the expected evidence and give instructions about it. These steps could, of course, have been taken. But that possibility does not gainsay the judge’s conclusion that calling Mr Christensen would cause unfair prejudice to the Billis parties. It would remain the case that Mr Billis had given evidence without knowing what Mr Christensen was expected to say, which could result in inconsistencies in his evidence. It would also be the case that the usual manner in which legal advisers assist a witness in preparing for the process of cross-examination would not be available given that Mr Billis was under cross-examination, given that such preparation might go beyond ‘giving instructions’.
The Giovinazzo parties also submitted that Mr Christensen’s file could have been subpoenaed so as to enable the Billis parties to inspect it before he gave evidence. That is correct, but it is not to the point. More importantly, there has been no explanation why the Giovinazzo parties had not subpoenaed the file before the trial began. Such a step was obvious, as counsel for the Giovinazzo parties accepted on the appeal. Furthermore, that course proposed in the midst of the trial would not have remedied the prejudice the Billis parties would experience as a result of Mr Billis giving evidence prior to seeing the file or hearing Mr Christensen’s evidence.
As for the proposition that the judge failed to consider whether any unfair prejudice to the Billis parties was repairable, this issue was in substance dealt with by his Honour’s conclusion that the trial timetable would be prejudiced if the application were to be granted — that is, the repair of the prejudice would result in the delay of the resolution of the proceeding.[128] This aspect of his Honour’s reasons is dealt with below.
[128]Reasons, [235].
The fifth alleged error concerned the judge’s conclusion that calling Mr Christensen had the potential to result in the trial not being completed in the two weeks in which it had been set down. Again, this conclusion was open to the judge, who had the advantage over this Court of presiding over the trial.
The trial was listed for 6 May 2024, with the evidence to conclude on 16 May 2024 and final submissions to be heard from 17 June 2024.[129] The first week of the trial was spent by the time the judge heard the application (which occurred on the first day of the second week). Had the application been granted, it would have been necessary:
(a)for the Giovinazzo parties to produce further documents in their possession (which in fact occurred on the evening of 13 May 2024, after the application had been determined); and
(b)for a subpoena to be issued to Mr Christensen to give evidence, which was suggested to be returnable on Wednesday 15 May 2024 or Thursday 16 May 2024 (by an order abridging the ordinary time for service), in circumstances where his availability was not known ‘for a fact’, and where he was based in Perth; and
(c)for a subpoena to be issued to Mr Christensen to produce documents, the time for which was unknown, but might at best also have been 15 or 16 May 2024; and
(d)for the matter to be stood down in order for Mr Billis to consider both Mr Christensen’s expected evidence and any additional documents that might have been produced pursuant to the subpoena, which could thus not occur until after such documents were produced — ie after 15 or 16 May 2024.
[129]Reasons, [201].
These steps would have delayed the conclusion of Mr Billis’ evidence until, at best, 15 May 2024 and, at worst, some later date, depending on the result of the subpoena for production of documents. After Mr Billis’ evidence was finished, it would then have remained for the Giovinazzo parties to open their case and call their witnesses. It was open to the judge to conclude that all this was unlikely to occur in the time allocated to the trial.
Importantly, this was not a case where the application was put with any certainty about the timetable. Had the Giovinazzo parties made their application on the basis that Mr Christensen was, in fact, available to give evidence on a particular day, and had they been in a position to inform the judge about when the CX Law file would be produced, the matter might have been different. But they did not make the application on any such firm footing. Rather, they made the application a much more equivocal basis. In that regard, the following exchange occurred:
HIS HONOUR: And so when is Mr Christensen – so when is - Mr Christensen is going to be available on Thursday, is he?
[COUNSEL] Well, Wednesday or Thursday - - -
HIS HONOUR: Is he?
[COUNSEL] - - - depending on - - -
HIS HONOUR: Do you know that?
[COUNSEL] Well, I don’t know that for a fact. I don’t know if we spoke to him about Thursday, but the plan was to issue him a subpoena. And he certainly didn’t say he was unavailable if he was subpoenaed.
In this Court, the Giovinazzo parties sought to characterise the judge’s conclusion that there was ‘a significant risk’ of the trial ‘being derailed and evidence not being concluded’ in the allocated time as ‘in the nature of a speculation’. We do not accept that characterisation in circumstances where the Giovinazzo parties were not able to tell the judge in any definite terms when Mr Christensen would be available.
Nor does it appear that the judge relied upon ‘any delay’, as the Giovinazzo parties contended, as opposed to a ‘substantial delay’. The delay that his Honour had in mind was substantial, as his Honour’s use of the term ‘derailed’ reveals.
Ultimately, the judge’s conclusion about the risk that the trial would be ‘derailed’ was open to him.
Finally, we do not consider the judge’s decision to have been unreasonable or plainly unjust. The judge weighed the importance of the expected evidence against the prejudice to the Billis parties and the risk of disruption to the trial. He also took into account the lack of explanation for the failure to subpoena Mr Christensen or his file before trial, and the continued claim of privilege over various documents and over the conversation Ms Langridge had with Mr Christensen (the latter of which was only disclosed for the purposes of this appeal). It was open to the judge, weighing up all these matters, to refuse the late application to call Mr Christensen.
In light of our conclusion that the judge did not err in refusing to grant leave to the Giovinazzo parties to subpoena Mr Christensen, it is not necessary for us to decide whether, even if his Honour had erred, the application for leave to appeal and the appeal ought to fail by reason of r 64.37 of the Supreme Court (General Civil Procedure) Rules 2015.[130]
[130]That rule provides that, unless in the opinion of the Court of Appeal some substantial wrong or miscarriage has been occasioned in the trial, a new trial shall not be granted on the ground of the improper rejection of evidence.
Conclusion
Ultimately, the judge’s decision to refuse the Giovinazzo parties application to call Mr Christensen as a witness was well open to him. The Giovinazzo parties’ application for leave to appeal must be refused.
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SCHEDULE OF PARTIES
| MICHAEL JAMES GIOVINAZZO | First applicant |
| OMEO GOLD PTY LTD (ACN 633 448 469) | Second applicant |
| and | |
| RESOURCE CAPITAL LIMITED | First respondent |
| ANTON BYRON BILLIS | Second respondent |
| GOLDEN PLAINS RESOURCES PTY LTD (ACN 636 974 108) | Third respondent |
| LAKE GRACE EXPLORATION PTY LTD (ACN 009 406 437) | Fourth respondent |
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