Alexiou v Australia and New Zealand Banking Group Limited

Throughout my time at ANZ, I and my peers and colleagues were working long hours and communicating across multiple media, including through the Bloomberg Chat platform and over email. The reality of the life of a senior trader is that we were expected to be available to work, and to communicate with peers and colleagues, at all hours a relevant market was open, which was from the time the New Zealand market opened each Monday morning to the time that the New York market closed on their Friday evening - that is, between 5am AEST on Monday to 7am AEST on Saturday, with some variation to start and end time for daylight saving changes at different times of the year.

1. The objection was that the paragraph was bad in form and inadmissible opinion. I reject the form objection. As to the opinion objection, Mr Burnett for Mr Alexiou denied that the evidence was in the nature of opinion and submitted that it was evidence of fact based on his personal experience. I agree that the evidence is factual in nature but I do not accept that this entails that it is not opinion evidence as well. For example, evidence from a witness that another person is 'old' is both factual and a matter of opinion. In this case, Mr Alexiou's views about what ANZ expected of its traders are matters of opinion even if those expectations, if proven, are themselves factual in nature.
2. In response, Mr Burnett submitted that if the evidence was opinion evidence then it was lay opinion evidence to which s 78 of the Evidence Act 1995 (Cth) ('the Act') applied. Mr Pietriche, for ANZ, responded that s 78 was not engaged because Mr Alexiou had not disclosed what he had observed which had led him to hold the opinion that ANZ had the suggested expectation of its traders.
3. Section 76(1) of the Act provides that 'Evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed'. But s 76(1) is subject to several exceptions including the exception in s 78:

The opinion rule does not apply to evidence of an opinion expressed by a person if:

(a) the opinion is based on what the person saw, heard or otherwise perceived about a matter or event; and

(b) evidence of the opinion is necessary to obtain an adequate account or understanding of the person's perception of the matter or event.

1. It is not necessary in order to engage s 78 that the person giving the evidence should provide an exhaustive list of what the person perceived: Lithgow City Council v Jackson [2011] HCA 36; 244 CLR 352 ('Lithgow City Council') at 376 [57] per French CJ, Heydon and Bell JJ; Connex Group Australia Pty Ltd v Butt [2004] NSWSC 379 at [24]- [26] per White J. However, as the facts in Lithgow City Council itself show, it must still be possible to understand how the opinion was formed. In that case, two ambulance officers had attended a man who had badly injured himself by falling into a drain resulting in brain damage including amnesia. At issue was which side of the drain he had fallen from. The ambulance officers who had attended the injured man were not called as witnesses but a record prepared by them was tendered. It read '? Fall from 1.5 metres onto concrete'. The High Court concluded that there were many difficulties with this being tendered at trial insofar as s 78 was concerned. Whilst the Court accepted at [57] that the person holding the opinion did not have to give an exhaustive list of what the person perceived, the Court concluded that the ambulance officers' note was not sufficient for the purposes of s 78(a) because it did not provide any evidence of what the opinion recorded in it was based upon. A similar problem explains the difference between admissible evidence from a witness that they had seen a person who was old and inadmissible evidence from a witness that a person was old without any indication of the route of perception, if any, that led to that opinion.
2. Accepting that distinction, the second sentence of [60] is based on what Mr Alexiou perceived whilst working for ANZ. For s 78(a) to be satisfied, Mr Alexiou's opinion that ANZ expected its traders to work long hours and always to be available must be an opinion about 'a matter or event'. I am satisfied that ANZ's expectations of its traders about these matters is a 'matter'. It follows that Mr Alexiou's opinion satisfies the requirements of s 78(a).
3. In his oral submissions, Mr Pietriche also submitted that s 78(b) was not satisfied. This was because s 78(b) tethered the perception about which the opinion was expressed to the matter or event which was perceived. I agree that s 78(b) shows that the perception, the opinion and the matter or event are all inextricably connected. However, I do not agree that the second sentence of [60] fails to satisfy that requirement. Mr Alexiou's opinion about what he perceived (the expectations that ANZ had of its traders) was based on what he saw, heard and perceived in the workplace (as the first sentence of [60] makes clear).
4. It was for these reasons that I admitted the second sentence of [60].

1. The sample 2 objection was taken to the whole of [74]:

I formed the view that it was acceptable to ANZ to use coarse or lewd language to communicate with peers and colleagues, including in the context of communications such as those made using the Bloomberg Chat platform. This view was based on my experience and many incidents at ANZ as set out in the following paragraphs.

1. The objection was that the evidence was in the nature of opinion evidence and therefore inadmissible because of the opinion rule in s 76 of the Act. Mr Alexiou submitted that the evidence was admissible under s 78 of the Act. ANZ accepted that the first limb of s 78(a) was satisfied but submitted that the second limb in s 78(b) was not. This was for two reasons. The first reason was that the opinion was not about Mr Alexiou's 'perception of the matter or event'. The second reason was that it was not necessary to obtain an adequate account or understanding of his perception of the matter or event.
2. I do not accept the first argument. Mr Alexiou's opinion as to what was acceptable at ANZ is precisely about his perception of the matter referred to in s 78(a). I do not accept the second argument either. In Lithgow City Council the High Court addressed the meaning of the word 'necessary' in s 78 and at [54] explained that the word was 'directed to a relationship internal to the evidence of the perceiver - the relationship between the perceiver's perceptions and perceiver's opinion'. Some further light on what that means is cast by what the Court said at [51]:

The function of s 78(b) is to make up for incapacity to perceive the primary aspects of events and conditions, or to remember the perception or to express the memory of that perception.

1. A good working example of this is the one above: evidence from a witness that they saw a person who was old. The witness will not be able to say what it was about the person which made them think the person was old. The experience of the perception and the formation of the opinion are inextricably bound up with each other and the opinion supplants the sensory experience. This is the concept to which the word 'necessary' in s 78(b) is directed.
2. The question then is whether Mr Alexiou's opinion about what was acceptable behaviour was necessary to obtain an adequate account or understanding of his perception of that matter. I think that it is. The formation of an opinion about what was acceptable in the workplace culture is the accreted synthesis of a large array of interactions and perceptions which are not susceptible to recitation.
3. It was for those reasons that I admitted the whole of [74].

1. Objection was taken to two documents: a file note of December 2013 and a file note dated 21 January 2015.

1. This was a handwritten file note prepared by Mr Alexiou of a telephone call he had with Mr‍ Fred Pucci and Mr John Chase in December 2013. The subject matter of the telephone call was the nature of the disciplinary action which was to be imposed on a trader. The trader had allegedly spoken with an external broker about the position of the ANZ and another domestic bank in Australian interest rate futures contracts. Mr Alexiou's point about this discussion is that there is no discussion between the three participants to the call about the language used by the trader.
2. ANZ objects that the file is inadmissible hearsay. Mr Alexiou accepts his but submits it is a business record within the meaning of s 69 of the Act and therefore subject to the exception to the hearsay rule specified in that provision. The relevant subsections of s 69 are (1) to (3):

(a) either:

(i) is or forms part of the records belonging to or kept by a person, body or organisation in the course of, or for the purposes of, a business; or

(ii) at any time was or formed part of such a record; and

(b) contains a previous representation made or recorded in the document in the course of, or for the purposes of, the business.

(2) The hearsay rule does not apply to the document (so far as it contains the representation) if the representation was made:

(a) by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact; or

(b) on the basis of information directly or indirectly supplied by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact.

(3) Subsection (2) does not apply if the representation:

(a) was prepared or obtained for the purpose of conducting, or for or in contemplation of or in connection with, an Australian or overseas proceeding; or

(b) was made in connection with an investigation relating or leading to a criminal proceeding.

1. Mr Alexiou submits that his file note forms part of the records kept by him in the course of or for the purposes of ANZ's business. Given the content of the file note I find that Mr Alexiou took the file note in the course of his employment with ANZ even though it was probably, to some extent, for personal use as well. As such it falls within s 69(1)(a)(i): Gordon v Ross [2006] NSWCA 157 at [38] per Basten JA; Cimic Group Ltd v AIG Group Ltd [2022] NSWSC 999 at [190] per Peden J. ANZ sought to distinguish Gordon v Rees on the basis that the document involved in that case had been created both for personal use but also in the author's occupation as a manager. However, this does not distinguish the case from this one. As I have said, Mr Alexiou took the file note in the course of his employment, albeit with an element of personal use as well.
2. ANZ also drew to my attention the judgment of Harrison J in Mundine v Brown (No 3) [2010] NSWSC 515 ('Mundine') at [5]. The conclusion in that case was that s 69(1)(a)(i) was not engaged by a file note taken by Ms Wilkes at a forum. But in that case Harrison J found that Ms Wilkes had taken the notes as an attendee at the forum and not in any dual role as an employee of the putative business. Here there is no doubt that Mr Alexiou took the file note in the course of his employment. Mundine does not bear on the issue.
3. I conclude the December 2013 file note should be admitted.

1. Mr Alexiou was stood down from his role by the ANZ on 19 November 2014. The present file note consists of an email sent from Mr Alexiou's personal email address to himself at the same address. The email is dated 21 January 2015. Mr Alexiou says that the file note was created after a meeting in a bar on 17 July 2014 and that he emailed it to himself on 21 January 2015. In ordinary parlance, I would read 'after the meeting' to mean not long after the meeting.
2. A perusal of the entries in the file note show that one purpose Mr Alexiou kept the file note was for his own protection in the course of the widening BBSW investigation. If that is the only purpose he had then the document will not fall within s 69(1)(a)(i). The only evidence that the file note was created in the course of or for the purposes of ANZ's business is what can be gleaned from the file note itself. Mr Alexiou does not give any evidence about the purpose for which the file note was created. I am not prepared to infer from the file note that Mr Alexiou kept it in the course of or for the purposes of ANZ's business. Hence, I do not find that it falls within s 69(1)(a)(i).
3. I conclude the 21 January 2015 file note should not be admitted.

1. ANZ objects to the second and third sentences of [146]:

The resulting rate of 4.92 percent for 3-month BBSW was higher than the potential range in which I and other market participants expected the rate to set, based on the FRA quotes I had received from-third party banks on 29 September 2011 recorded on Bloomberg Chat. In circumstances where I understood that ANZ was appropriately funded, I formed the belief that ANZ Global Markets' primary reason for selling eligible securities in the rate set window was in order to set a higher BBSW rate. I believed the BBSW rate had been affected by ANZ's selling of eligible securities on the day and had resulted in a rate which was above my and my market contacts' expectations. This higher BBSW rate would allow ANZ to profit from the interest rate positions which were valued by reference to the BBSW rate set on 30 September 2011.

1. The objection is that the evidence is opinion evidence rendered inadmissible by s 76 of the Act. Mr Alexiou submits that the evidence is admissible opinion under s 79(1) of the Act:

If a person has specialised knowledge based on the person's training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge.

1. I am satisfied that Mr Alexiou has specialised knowledge of how the rate set window operated. The question therefore is whether the opinion in [146] is substantially based on that knowledge. In my view, the opinion in the second sentence is so based. He explains that he understood the ANZ to be appropriately funded on the day and therefore that the reason it was selling into the window was to raise the price. His view, in the second sentence, that the rate had been affected is sufficiently explained as a deduction from what has gone before. Although what Mr Alexiou says could no doubt be stepped out further it is sufficient for the purposes of s 79 in this case: cf. Dasreef Pty Ltd v Hawchar [2011] HCA 21; 243 CLR 588 at 604 [37] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ:

The way in which s 79(1) is drafted necessarily makes the description of these requirements very long. But that is not to say that the requirements cannot be met in many, perhaps most, cases very quickly and easily. That a specialist medical practitioner expressing a diagnostic opinion in his or her relevant field of specialisation is applying "specialised knowledge" based on his or her "training, study or experience", being an opinion "wholly or substantially based" on that "specialised knowledge", will require little explicit articulation or amplification once the witness has described his or her qualifications and experience, and has identified the subject matter about which the opinion is proffered.

1. On the other hand, I admit the third sentence but subject it to a direction under s 136 of the Act that it only be used as evidence of the nature of the concerns held by Mr Alexiou and referred to at [149] ('Given my concerns...'). There is nothing in [146] which explains why Mr Alexiou thought that ANZ had positions from which it would profit or what the connection between the people selling into the window and the people holding those positions was. Thus, I cannot say that the opinion is based substantially on Mr Alexiou's specialised knowledge. It seems to be based on something else which has not been articulated. It is therefore inadmissible as opinion evidence under s 79.
2. Mr Burnett also submitted that it could be admitted as lay opinion under s 78. I do not agree. There is no set of perceptions here that can only meaningfully be conveyed by an opinion (such as 'He is old'). Rather, the statement is a deductive statement made by combining the reasoning in the first two sentences with the unstated assumption that ANZ had positions which could result in profit if the BBSW rate was manipulated. This is not an opinion to which s 78 applies.
3. However, the evidence has a secondary relevance as an explanation of the concerns he had which actuated Mr Alexiou to have the conversation he deposes to at [149] with his line manager, the global head of fixed income ('Given my concerns...'). The sentence should be received as evidence of those concerns but its use should be limited to that use by a direction under s 136.
4. Objection was also taken to [147]:

As a consequence, I came to the conclusion that, by the conduct of Paul Woodward's trading in the rate set window on 30 September 2011, ANZ had attempted to manipulate the market in order for ANZ to profit from ANZ's BBSW Rate Set Exposure.

1. This stands in the same position as the third sentence of [146], that is, it should be admitted but subject to a direction under s 136.
2. On the basis of the above, I have made the following rulings:

(a) the December 2013 file note is admitted;

(b) the 21 January 2015 file note is not admitted;

(c) the second sentence of [146] is admitted;

(d) the third sentence of [146] is admitted, subject to a direction under s 136 of the Act that it only be used as evidence of the concerns referred to by Mr Alexiou at [149];

(e) [147] is admitted, subject to the same direction referred to in (d).

I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Perram.