In the matters of Earth Civil Australia Pty Ltd, RCG CBD Pty Ltd, Bluemine Pty Ltd, Diamondwish Pty Ltd and Rackforce Pty Ltd (all in liq) [2020] NSWSC 293 - NSWSC 2020 case summary — Zoe

NSWNSWSC

In the matters of Earth Civil Australia Pty Ltd, RCG CBD Pty Ltd, Bluemine Pty Ltd, Diamondwish Pty Ltd and Rackforce Pty Ltd (all in liq) [2020] NSWSC 293

[2020] NSWSC 293

Supreme Court of NSW|2020-02-03|Before: Ward CJ

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At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2020-02-03

Before

Ward CJ

Catchwords

EVIDENCE - Hearsay - Exceptions - Admissions - transcript of compulsory interview with Australian Taxation Office

Source

Original judgment source is linked above.

Catchwords

EVIDENCE - Hearsay - Exceptions - Admissions - transcript of compulsory interview with Australian Taxation Office

Judgment (60 paragraphs)

[1]

1] FCA 645 Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317; [2003] HCA 51 Fodare Pty Ltd v Shearn [2010] NSWSC 737 Hayes (Liquidator) v 5G Developments Pty Ltd [2019] FCA 1541 Lustre Hosiery Ltd v York (1935) 54 CLR 134; [1935] HCA 71 Lym International Pty Ltd v Marcolongo [2011] NSWCA 303; (2011) 15 BPR 29,465 Nominal Defendant v Gabriel (2007) 71 NSWLR 150; [2007] NSWCA 52 R v Hannes [2000] NSWCCA 503; (2000) 158 FLR 359 Richards v Macquarie Bank Ltd (No 3) [2012] FCA 1523; (2012) 301 ALR 653 Richards v Morgan (1863) 4 B & S 641 Smith v Joyce (1954) 89 CLR 529; [1954] HCA 15 Tim Barr Pty Ltd v Narui Gold Coast Pty Ltd [2009] NSWSC 769; (2009) 258 ALR 598 Wily v Lo Presti (1997) 16 ACLC 82 Texts Cited: Australian Law Reform Commission, Evidence (Interim) Report (ALRC Report 26, August 1985) Australian Law Reform Commission, Evidence Report (ALRC Report 38, 5 June 1987) Stephen Odgers, Uniform Evidence Law (14th ed, 2019, Thomson Reuters) Category: Procedural and other rulings Parties: Bluemine proceedings (2016/00256135): Mitchell Warren Ball in his capacity as liquidator of Bluemine Pty Ltd (in liq) (First Plaintiff) Bluemine Pty Ltd (in liq) Second Plaintiff) Gino Cassaniti (Eleventh Defendant) (see attached Schedule of Parties)

[2]

[7]

Judgment

HER HONOUR: Before me for hearing commencing on 3 February 2020 in the Corporations List are five sets of proceedings in which the liquidator of various companies (Bluemine Pty Ltd, Diamondwish Pty Ltd, Earth Civil Australia Pty Ltd, Rackforce Pty Ltd, RCG CBD Pty Ltd, to which I will refer as Bluemine, Diamondwish, Earth Civil, Rackforce and RCG CBD, respectively) has sought relief against numerous defendants seeking compensation (by way of damages, equitable compensation and otherwise) for, in essence, conduct alleged to amount to a conspiracy to defraud the Commonwealth. The claims brought against certain defendants are as the so-called primary conspirators. The claims brought against other defendants are as scheme participants in various capacities.
There were initially some 142 defendants across the five sets of proceedings. By the time the hearing commenced, as I understand it, only 56 claims remained "active" (the other claims having been settled or otherwise not proceeding). Similarly, during the course of the hearing so far, there have been various defendants against whom the liquidator has discontinued his claims following settlements reached between the parties. The first five defendants in each proceeding are those who the liquidator calls the five primary conspirators (against whom, I was informed, the claims comprise 25 of the 56 claims that still remained as at the commencement of the hearing). Attached is a schedule of the active parties in each of the proceedings.
The first defendant in most of the proceedings is a company, Banq Accountants and Advisors Pty Ltd (to which I will refer as Banq). Banq is now in liquidation and the liquidator accepts that he cannot (without leave) now proceed against that company (such leave not having been sought).
Broadly speaking, what is alleged is that the primary conspirators were Banq, Mr Gino Cassaniti, Mr Faouzi (Fred) Khalil, Mr George Khalil and Mr Peter Abboud (all those individuals being persons who worked or were engaged in different tasks in Banq). The shareholding of Banq (according to ASIC records) was owned by Peter Abboud, Faouzi Khalil and (as to 60%) by Givana Pty Ltd, a company of which Ms Ivana Cassaniti (the wife of Mr Gino Cassaniti) was the sole shareholder.
It was said, in opening submissions for the plaintiffs, that the conspiracy amongst those five primary conspirators "was, in effect, designed and implemented so as to disguise or hide income that would otherwise be taxable or expected to be taxable of the corporation scheme participants and sometimes of natural person participants"; and that Banq took a share of the transactions that it had designed and implemented, or assisted to implement, for its clients. What was described was a scheme involving a "carousel of payments" in most cases involving, somewhere in those transactions, a company controlled by the primary conspirators.
So, for example, it is said that the primary conspirators (or some of them), by utilising the plaintiff companies (such as RCG CBD), were able to siphon off parts of payments that were going around in carousel payments between companies controlled by their clients, sometimes set up upon the recommendation of accountants of Banq (in particular, Mr Cassaniti) and that their primary aim was their own benefit. It is said that not only did they take percentages from the transactions but they also established a scheme whereby they could report purported BAS payments to the Australian Taxation Office (ATO) without at the same time disclosing purchases and thereby "create an entitlement" to a credit from the ATO which it is said on more than one occasion was paid back to the accountants, or back to the company but into the accountant's bank account, on the basis of BAS returns that the liquidator contends were false.
The various plaintiff companies were wound up (it is said on the basis of documents signed by Mr Cassaniti, though there is some contention as to his signature on various documents), some on the same day, leaving debts owing in respect of Goods and Services Tax (GST).
In the respective proceedings, there are equitable claims made by the plaintiffs for compensation for breach of fiduciary duties owed by the respective directors of the companies to those companies and accessorial liability in equity is claimed against the various scheme participants on the principles recognised by Lord Selborne LC in Barnes v Addy (1874) LR 9 Ch App 244 (Barnes v Addy). The causes of action pleaded are statutory counts (see ss 180, 181 and 182 of the Corporations Act 2001 (Cth) (Corporations Act) and the accessorial liability provisions within the Corporations Act). In the course of debate on one of the many pleading disputes that has taken place so far in these proceedings, Senior Counsel for the plaintiffs (Mr Faulkner SC) made clear that what is pleaded is not a claim of conspiracy as such but, rather, it is alleged that there was a conspiracy and that the conduct amounted to equitable fraud (giving rise to liability under the Barnes v Addy principles for scheme participants).
The above (largely drawn from opening oral submissions of the plaintiffs) is intended simply as an introduction in order to explain the evidentiary rulings that I am now called upon to make in relation to the plaintiffs' application to tender the transcript of an ATO interview of Mr George Said on 3 June 2019. I make no factual findings at this stage of the proceedings.
As far as the progress of the proceedings is concerned, subject to one matter (being another application, or set of mirror applications, to amend certain of the defences in the proceedings), the respective cases of the plaintiffs and the defendants have closed; and the plaintiffs' closing submissions are due to commence on 30 March 2020 (the timetable having been extended to accommodate preparation time for the respective parties in relation to their closing submissions). The hearing is not presently expected to conclude until 19 May 2020. It is in that context that a ruling has been sought as to the admissibility of portions of the transcript of Mr Said's ATO interview (that only having been provisionally admitted by me at the time it was tendered by the plaintiffs).

[8]

Relevant pleadings and factual matters

Mr George Said is a defendant in each of the Bluemine and RCG CBD proceedings. According to ASIC records, Involved Recruitment Pty Ltd (Involved Recruitment) was incorporated on 16 May 2012 and Mr Said was a director of the company for one day (his appointment as a director ceasing on 16 May 2012) and first Mr George Khalil being appointed as director and then Mr Gino Cassaniti being appointed as director on the same day. The ASIC forms recording the cessation of those directorships were lodged on 13 May 2013, ostensibly by Banq. The plaintiffs' case is that Mr Said was in fact a director of Involved Recruitment during the relevant period (i.e., for more than one day).
In each of those proceedings, it is alleged that Mr George Said was a "Scheme Participant" and the controlling mind and will of Involved Recruitment (see [125]; [236(p)] of the Bluemine proceeding; [132]; [230(t)] of the RCG CBD proceeding).
In the Bluemine proceeding, it is alleged: (at [208]) that Involved Recruitment received $55,590 from Bluemine without any genuine commercial documentation; (at [129]) that Involved Recruitment was a "Receiving Participant" (that being a defined term in the pleading); and (at [237(b)]) that each of the Scheme Participants (thus including Mr Said) knew that the documentation (if any) prepared in the transactions was intended to create an appearance, which was false, to the effect that the transactions involved genuine commercial transactions between Bluemine and the respective Scheme Participants.
In the RCG CBD proceeding, it is alleged: (at [202]; [203]) that between September 2012 and May 2013, Involved Recruitment paid RCG CBD $934,339 without any genuine commercial documentation (see also at [144.18.4]); and (at [231(b)]) that each of the Scheme Participants (again this including Mr Said) knew that the documentation (if any) prepared in respect of the transactions was intended to create an appearance, which was false, to the effect that the transactions involved genuine commercial transactions between RCG CBD and the respective Scheme Participants.

[10]

Objections to tender

A hearsay objection was taken to the admission of the transcript of interview (namely, that it was not admissible pursuant to s 59 of the Evidence Act 1995 (NSW) (Evidence Act) as evidence of the truth of a fact supposed by a previous representation) and citing De Bortoli Wines Pty Ltd v HIH Insurance Ltd (in liq) [2011] FCA 645 (De Bortoli Wines) at [25]; Fodare Pty Ltd v Shearn [2010] NSWSC 737 (Fodare v Shearn) at [14]. A further objection on the basis that the transcripts were "second hand hearsay", noting that the transcripts bear the statement that they were "transcribed but not recorded by Auscripts Australasia Pty Limited", was initially raised but is not now pressed - see T 1428.26.
In essence, the issue now to be determined is as to whether portions of the transcript sought to be relied upon by the plaintiffs are admissible as admissions against the interest of Mr Said (see ss 81 and 82 of the Evidence Act). Mr Said also presses that the transcript, or portions of it, should be excluded pursuant to the statutory discretion under s 135 of the Evidence Act.
There was suggestion that the transcript, or portions of the transcript, may be admissible under the "business records" exception pursuant to s 69 of the Evidence Act. I understand that this avenue of admissibility is not now pressed and I say nothing of it.
Counsel for Mr Said submitted that it was not appropriate that the entire document be tendered in order to find some impression, rather than a representation which is itself a discernible admission against the interests of Mr Said. Where it is said that there is either no admission or no discernible admission (in the sense that it is not clear from the transcript what Mr Said is saying or that it is ambiguous), then Counsel for Mr Said argues that it should either be treated as not being an admission, or under s 135, it ought be excluded as either prejudicial or misleading or potentially misleading.
The plaintiffs' response to this was that in relation to admissions drawn from a lengthy interview dealing with different subject matters and with different interrogators, representations may be drawn from the context of the document as a whole. It was submitted that the admissions that the plaintiffs have listed in the schedule are to be properly considered as admissions on that basis that one needs to look at the context on each page where there is a series of questions and answers resulting in an admission.
The alternative argument put for the plaintiffs was that the document should be tendered as a document upon which Mr Said was cross-examined (which would give a better context of the questions and answers in the Court transcript) but it was accepted that if so limited it would not have probative value of its own.
The plaintiffs have prepared a schedule of the portions of the transcript said to be admissions against interest (see Annexure C to the letter dated 27 February 2020 from the plaintiffs' solicitors - MFI 17) and those said to be prior inconsistent statements (see Annexure D to that letter).
The plaintiffs disavow any contention that each part of the transcript identified by them in the 27 February 2020 letter is individually, in and of itself, an admission against interest. Rather, they contend that the parts of the transcript that have been so identified, when read as a whole and in context, amount to admissions against interest. It is contended that the admissions arise implicitly from the whole of the transcript (or at least the relevant parts which they have identified).
The plaintiffs say, in summary, that the whole of the record of interview contains the following admissions: a) He [Mr Said] was involved in the transactions, in his capacity as a director of Involved Recruitment, pleaded against him. b) Involved Recruitment's participation, as pleaded, was caused by his [Mr Said's] conduct. c) George Said participated in the transactions pleaded against him in collaboration with Gino Cassaniti and he was paid by, or at the direction of, Gino Cassaniti to do so.
As adverted to above, in the 27 February 2020 letter, the plaintiffs' solicitors set out a table of the portions of transcript from Mr Said's ATO interview sought to be tendered as admissions against interest or as prior inconsistent statements. Meanwhile, in submissions handed up on 13 March 2020, Mr Said has set out his response to the assertion that those portions (or some of them) amount to admissions against interest.

[11]

Determination

Section 81 of the Evidence Act provides that: 81 Hearsay and opinion rules: exception for admissions and related representations (1) The hearsay rule and the opinion rule do not apply to evidence of an admission. (2) The hearsay rule and the opinion rule do not apply to evidence of a previous representation - (a) that was made in relation to an admission at the time the admission was made, or shortly before or after that time, and (b) to which it is reasonably necessary to refer in order to understand the admission.
Section 82 of the Evidence Act provides that: 82 Exclusion of evidence of admissions that is not first-hand Section 81 does not prevent the application of the hearsay rule to evidence of an admission unless - (a) it is given by a person who saw, heard or otherwise perceived the admission being made, or (b) it is a document in which the admission is made.
As noted above, "previous representation" is defined in Pt 1 of the Dictionary as "a representation made otherwise than in the course of giving evidence in the proceeding in which evidence of the representation is sought to be adduced".
Part 1 of the Dictionary defines "representation" as follows: representation includes - (a) an express or implied representation (whether oral or in writing), or (b) a representation to be inferred from conduct, or (c) a representation not intended by its maker to be communicated to or seen by another person, or (d) a representation that for any reason is not communicated.
Part 1 of the Dictionary defines "admission" as follows admission means a previous representation that is - (a) made by a person who is or becomes a party to a proceeding (including a defendant in a criminal proceeding), and (b) adverse to the person's interest in the outcome of the proceeding.
Insofar as "representation" includes an implied admission, I note the discussion by the Australian Law Reform Commission at Appendix C at [19] of its report, Evidence Report (ALRC Report 38, 5 June 1987) cited in Stephen Odgers, Uniform Evidence Law (14th ed, 2019, Thomson Reuters) at [EA.81.60].
I also note in passing that it has been suggested that admissions made otherwise than in the formal course of proceedings have merely an evidentiary significance and that the "admitting" party is entitled to dispute the accuracy of the admission by evidence that it was influenced by mistake, misunderstanding or ignorance, or that it is otherwise inaccurate or unreliable (see Nominal Defendant v Gabriel (2007) 71 NSWLR 150; [2007] NSWCA 52 at [113], [144] per Campbell JA).
I have already outlined, in a general way, Mr Said's position and that of the plaintiffs. To that I simply add the following further elaboration.

[12]

Mr Said's submissions

Counsel for Mr Said notes that the transcripts are said to be records of compulsory interviews carried out "some years ago" (pausing here, I note that the interview was conducted in June of last year) of Mr Said by a third party, namely the Commissioner of Taxation. It is said that the transcripts "consist in large part of answers to leading questions which would not have been allowed in the current proceedings without leave, and they are not records adopted formally in any way. In these proceedings [the transcripts] have simply been used in cross examination of [witnesses called by the plaintiff]". It is further said that, the plaintiffs having cross-examined on the documents, "the plaintiffs have made it clear that the transcripts in question are tendered, only to prove admissions by the interviewees themselves".
Counsel for Mr Said notes the prima facie operation, pursuant to s 59 of the Evidence Act, of the hearsay rule. As I have already mentioned, reference is made to De Bortoli Wines where Stone J (at [25]) held that statements recorded in transcripts of an examination conducted under s 597 of the Corporations Act are "previous representations" for the purposes of s 59. It is further noted, citing Fodare v Shearn at [14] per Barrett J (as his Honour then was), that s 59 precludes admission of evidence of the previous representation.
Counsel for Mr Said submits that, unlike transcripts of evidence taken on an examination under s 597 of the Corporations Act, records of interviews with the Commissioner of Taxation are not made admissible by any provision comparable to s 597(14) of the Corporations Act; and, on that basis, says that unless the plaintiff can point to some exception to the hearsay rule then a record of interview by the Commissioner of Taxation is not "on its face" admissible.
As to s 83, Counsel for Mr Said points out that s 83 provides that s 81 does not prevent application of the hearsay rule to evidence of an admission in respect of the case of a third party. It is said that, "[i]n light of s 83(4) without the consent of any of the other parties, hearsay evidence of any admission made by one of the interviewees is not evidence against the other parties".
It is further submitted that the purpose of s 81 is that only so much of the records of interview which are evidence of a relevant admission are admissible into evidence. Counsel for Mr Said makes reference in this regard to the judgment of Young J (as his Honour then was) in Wily v Lo Presti (1997) 16 ACLC 82 (Wily v Lo Presti). It is said that if the relevant representations are admissions then they are admissible as against the maker of the representation but are not otherwise admissible. It is submitted, in effect, that it was, or is, not appropriate that the entire document be tendered in order to find some impression, rather than a representation which is itself a discernible instance, of an admission against interest.
Finally, it is submitted that, even if the various representations are found to be admissions (or, pursuant with the requirements of s 81(2), reasonably necessary to refer to in order to understand the admission(s)), the evidence should nevertheless be excluded pursuant to s 135 of the Evidence Act because the probative value is outweighed by the quality of the evidence, including a submission that it ought be excluded as either prejudicial or misleading or potentially misleading. It is not entirely clear whether Mr Said presses this submission only in respect of specific portions of the transcript; or instead, generally to all of the transcript portions and, in that sense, puts this submission in the alternative. For example, Counsel for Mr Said submits that, where it is said that there is either no admission or no discernible admission (in the sense that it is not clear from the transcript what Mr Said is saying or that it is ambiguous), then the transcript portion should either be treated as not being an admission or excluded pursuant to the discretion. To my mind, this perhaps conflates an admissibility exception with an exclusionary discretion - for example, if I find that there is no relevant admission (or that the transcript portion is not reasonably necessary to refer to in order to understand the admission) then the relevant transcript portion is not admissible (unless some other exception to the hearsay rule) and no question of discretion would arise.
In any event, I will determine exclusion under s 135 in relation to particular transcript portions where Mr Said has specifically identified that the discretion should be exercised in relation those particular portions; I will then, also, consider exclusion under s 135 generally.

[14]

Preliminary observations

As to Mr Said's submission that the plaintiffs must point to some exception to the hearsay rule, the plaintiffs (as would be apparent from the preceding) do not appear to quarrel with this submission; rather, the plaintiffs rely squarely on the exception provided for by s 81 of the Evidence Act.
As to Mr Said's submission that only so much of the transcript(s) which evidences an admission, or admissions, is admissible, I note the remarks of Barrett J (as his Honour then was) in Tim Barr Pty Ltd v Narui Gold Coast Pty Ltd [2009] NSWSC 769; (2009) 258 ALR 598 (Tim Barr) at [48]: [48] The meaning of 'shortly … after' is to be understood in the light of the purpose s 81(2) is intended to serve. It is an adjunct to s 81(1) which puts evidence of an admission beyond the operation of the hearsay rule. Section 81(2) recognises that some other hearsay statement may serve to give essential added content to an admission, in that the other statement is necessary to a proper understanding of the admission. But s 81(2) also recognises that the other statement will be of explanatory or clarifying value only if intimately associated with the admission. The need to exclude the intervention of self-serving after-thought, re-construction or alteration is recognised by the words 'made … at the time the admission was made, or shortly before or after that time'. [Emphasis added]
His Honour there quoted (at [49]) the following explanation provided by the Australian Law Reform Commission in its report, Evidence (Interim) Report (ALRC Report 26, August 1985) at 424: A party may make a series of assertions of fact, some against interest at trial, some in his interest, some neutral. Only the former assertions would fall into the proposed definition of 'admission'. Existing law, nevertheless, permits the self-serving portions of a statement to be admitted as evidence. It is not proposed to recommend any changes to the law. An assertion against interest should be considered in context - to assess its probative value it is necessary to consider assertions which qualify or modify it. Fairness to the party requires that his statements not be taken out of context.
Here, of course, the admissibility objections are pressed by Mr Said, not the plaintiffs. That is, the situation is quite opposite to the issue identified by his Honour in Tim Barr as being "[t]he need to exclude the intervention of self-serving after-thought, re-construction or alteration…"; nor is it one where "[f]airness to the party requires that his statements not be taken out of context". Indeed, it is Mr Said, being the person whom (it is said) made the admissions evidenced in the interview transcript and now presses the objection to the tender, who says it would be unfair to allow the tender of the whole of the portions sought to be relied upon by the plaintiffs.
However, what is apparent from his Honour's remarks in Tim Barr, and the excerpt of the ALRC Report to which I have just referred, is that there is latitude to admit evidence of a previous representation (whether at the time the admission was made, shortly before or shortly after) in relation to an admission that, though not in itself evidence of an admission, is necessary context for the proper understanding of those representations which do constitute admissions. Indeed, this is expressly contemplated by s 81(2).
Relevantly too, if only by way of further example, I note that in Hayes (Liquidator) v 5G Developments Pty Ltd [2019] FCA 1541, Stewart J, having been called to rule on the admissibility of the transcript of a liquidator's examination (the transcript having been provisionally admitted in a manner not unlike the present circumstance), said (at [30]) that: [30] Within the transcript of the examination … [the plaintiff] sought to rely on three particular extracts which were said to be admissions by Mr McGrath either for himself or on behalf of DW and are therefore admissible under s 81 of the Evidence Act as exceptions to the rule against hearsay. It was accepted that in the event that one or more of the particular extracts was admitted, then the whole transcript should be admitted in order to provide context to the particular extract or extracts which was admitted. This approach is provided for in s 81(2) of the Evidence Act.
In this regard, there are two issues initially to be determined as regards each of the previous representations for which Mr Said still presses an objection: first, is the relevant transcript excerpt evidence of an admission in itself (and thereby admissible under s 81(1)); second, if it is not, is the relevant transcript excerpt nevertheless admissible because it is reasonably necessary to refer to it in order to understand the admission(s) (and thereby admissible under s 81(2))? I note that, in proceeding in this way, I might be taken to have adopted a narrower interpretation of s 81(2) than did Stewart J. It is necessary for me to do so, while expressing no view on the matter, because of Mr Said's particular objections in this regard (it not having been accepted that the whole of the transcript ought be admitted if I find that the transcript evidences one or more admissions).
I should say, also, that I consider the submission for the plaintiff that the admissions arise implicitly from the whole of the transcript as being put at too high a level of generally; rather, in my view, it is necessary to determine these matters at a level of some specificity (in addition to the principles which I have just outlined, see for example, Wily v Lo Presti, where Young J, as his Honour then was, referred to the relevant passages in the copy transcript having been marked with a blue line).
After determining those two issues, I will then turn to consider Mr Said's submissions as regards s 83(4) and s 135.
Finally, as I have already noted, as to s 82, Mr Said does not now press further objection on the basis that the transcripts were "second hand hearsay".

[15]

Admissibility under s 81(1)

In Richards v Morgan (1863) 4 B & S 641 at 661, Cockburn CJ said: It cannot be doubted that a man's assertions are admissions, whether made in the course of a judicial proceeding or otherwise, and, in the former case, whether he was himself a party to such proceeding or not. It may be given in evidence against him in any suit or action in which the fact so asserted or admitted becomes material to the issue to be determined. And in principle, there can be no difference whether the assertion or admission be made by the party himself who is sought to be affected by it, or by someone employed, directed or invited by him to make the particular statement on his behalf. In like manner, a man who brings forward another for the purposes of asserting or proving some fact on his behalf, whether in a court of justice or elsewhere, must be taken himself to assert the fact that he thus seeks to establish. [Emphasis added]
In Lustre Hosiery Ltd v York (1935) 54 CLR 134 at 143-144; [1935] HCA 71 (Lustre Hosiery Ltd v York), Rich, Dixon, Evatt and McTiernan JJ said: This course of authority seems consistent with the view that words or conduct amount to an admission receivable in evidence against the party if they disclose an intention to affirm or acknowledge the existence of a fact whatever be the party's source of information or belief. In determining whether he intends to affirm or acknowledge the state of facts the party's knowledge or source of information may be material. For if he states that another person has told him of it, and it appears that he has additional sources of information to the like effect, it may be right to understand him as implying a belief in what he repeats. Or, again, a person who fails to contradict a statement concerning matters within his own knowledge may be understood as acquiescing in the statement if the circumstances are such as to make it unlikely that he would allow an erroneous statement to pass unchallenged. But, although the meaning of his words or conduct may depend upon the state of his knowledge, once that meaning appears and an intention is disclosed to assert or acknowledge the state of facts, its admissibility in evidence as an admission is independent of the party's actual knowledge of the true facts. When admitted in evidence, however, its probative force must be determined by reference to the circumstances in which it is made and may depend all together upon the party's source of knowledge. If it appears that he had no knowledge, or that, although he had some means of knowledge, he had formed no certain or considered belief and indicated nothing amounting to a personal judgment or conclusion of his own, the probative force of the admission may be so small that a jury ought not be allowed to act upon it alone, or in preference to opposing evidence. [Emphasis added]
The High Court later applied these principles in Smith v Joyce (1954) 89 CLR 529 at 535-536; [1954] HCA 15. Most relevant to the matter presently under consideration, Dixon CJ, Webb, Fullagar, Kitto and Taylor JJ there said (at 535) that it is a question of law whether a statement made by a party is capable of constituting an admission on any relevant issue; and that this, generally, must be determined by examining the words used (see also Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317; [2003] HCA 51 at [68]-[71] per Gummow J).
Therefore, I approach the question as to whether each of the previous representations are relevantly admissions as being whether the words disclose an intention, on the part of Mr Said, to affirm or acknowledge the existence or non-existence of a fact in issue (whatever be Mr Said's source of information or belief). In considering that question, I bear in mind that Mr Said's knowledge or source of information may be material (depending on the nature and purported relevance of the particular fact); or instead, where Mr Said states or implies that another person had told him of the alleged fact and it appears that Mr Said had additional sources of information to the like effect, it may still be correct to understand what Mr Said has said as implying a belief in what he repeated (or failed to contradict when put to him) in the interview.

[55]

Admissibility as against third parties and s 83(4)

For completeness, insofar as Counsel for Mr Said made submissions relating to s 83(4) and the inadmissibility of the interview records as against a party other than the maker of the representation (being Mr Said), it is to be noted that an order has been made in these proceedings that evidence in one proceeding is evidence in another.
The interaction between ss 81 and 83 of the Evidence Act was considered in some detail by Reeves J in Richards v Macquarie Bank Ltd (No 3) [2012] FCA 1523; (2012) 301 ALR 653.
There, his Honour, following detailed consideration of the judgments of Gzell J in Australian Securities and Investments Commission v Macdonald (2008) 68 ACSR 126; [2008] NSWSC 995 and Austin J in Australian Securities and Investments Commission v Rich (2005) 54 ACSR 28; [2005] NSWSC 471 and Australian Securities and Investments Commission v Vines (2003) 48 ACSR 282; [2003] NSWSC 995, noted (at [40]) that "[i]t is apparent … from these decisions that neither Gzell J in Macdonald, nor Austin J in Rich or Vines, was dealing with the effect of s 83 of the Evidence Act in relation to the tender of a representation allegedly constituting an admission under s 81".
His Honour next considered (at [41]) the judgment of Brereton J (as his Honour then was) in Carbotech-Australia Pty Ltd v Yates [2008] NSWSC 1046, a decision that did specifically concern the operation of s 83 of the Evidence Act, where Brereton J observed (at [8]): [8] Nonetheless, at least so far as it involves a conclusion that the conduct is dishonest, the evidence would offend the opinion rule. As against Mr Yates, that would not exclude its admissibility because of the operation of (NSW) Evidence Act 1995, s 81(1), which provides that the hearsay rule and the opinion rule do not apply to evidence of an admission. However, Evidence Act, s 83(1), provides that s 81 does not prevent the application of the hearsay rule or opinion rule to evidence of an admission in respect of the case of a third party, and subs (2) provides that such evidence may be used in respect of the case of a third party only if that party consents.
Reeves J then considered the decision of the New South Wales Court of Appeal in Lym International Pty Ltd v Marcolongo [2011] NSWCA 303; (2011) 15 BPR 29,465. That appeal relevantly concerned the admissibility of certain evidence going to post-contractual conduct (as principally relevant to an issue in the proceedings). Campbell JA (within whom Sackar JA agreed, Basten JA not considering) stated (at [125]): [125] If being an admission were the only route through which post-contractual conduct could be available as an aid to finding the terms of a contract not wholly in writing, there would be limitations on the use to which that conduct could be put. Conduct relied on as an admission is evidence against the party to litigation on whose behalf the admission is made, but it is not evidence against any other party to the litigation unless that other party consents: s 83 Evidence Act. [Emphasis added]
Reeves J then concluded (at [43]): [43] From these decisions, I considered that it was clear that s 83 of the Evidence Act applied to set aside the "admission" exception to the hearsay and opinion rules provided for in s 81 to the extent that the "admission" concerned was sought to be tendered against another party to the proceeding (as defined in s 83(4)) unless that other party consented to the tender under s 83(2).
I note also, only by way of further example, the following comments of the Full Court of the Federal Court of Australia (Wilcox, O'Connor and Sackville JJ) in Colonial Mutual Life Assurance Society Ltd v Donnelly (1998) 82 FCR 418 (Donnelly) at 431: The ordinary rules of evidence permit an admission by a party to proceedings to be tendered as evidence against that party. However, those rules do not usually allow an admission by one party to be used against another party to the same proceedings who has not authorised or adopted the admission. His Honour did not explain in the separate judgment on what basis the transcript of the bankrupt's s 81 examination could have been admissible against CML… [Emphasis in original]
In the present proceedings, the plaintiffs have not made any submissions against the position outlined above. I see no reason, subject of course to any submissions during the course of the balance of this proceeding, to depart from the approach indicated by Reeves J and in these other authorities.

[56]

Discretion to exclude under s 135

Finally, I now turn to consider the discretion, contained in s 135 of the Evidence Act, to exclude otherwise admissible evidence.
Section 135 provides as follows: 135 General discretion to exclude evidence The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might - (a) be unfairly prejudicial to a party, or (b) be misleading or confusing, or (c) cause or result in undue waste of time.
Mr Said did not identify any specific basis for exercising the statutory discretion to exclude other than the proposition that "the probative value [of the evidence] is outweighed by the quality of the evidence…" and pointing in relation to aspects of the transcript that were confusing or where he appeared to have been led through documents that were not identified (and may or may not now be identifiable). Nor has any particular prejudice been identified as prejudice that would be occasioned if the transcript excerpts were admitted. As to specific transcript excerpts which Mr Said has identified, I have already determined the exercise of the discretion as regards those particular portions of the transcript.
The oral evidence in the case has now concluded. I am not persuaded that the admission of the portions of the transcript that I have concluded are admissible as admissions against interest would now result in any undue waste of time (albeit that the parties will no doubt wish to address submissions as to part or all of this evidence). Nor do I consider that the potential for confusion (or argument as to the misleading or ambiguous nature of certain of the transcript passages) is so great as to lead to the conclusion that it would substantially outweigh the probative value of the evidence. The probative value of the evidence as a whole, as I understand it, goes to Mr Said's role in the transactions in question. What he understood, or what he was told, as to those transactions may well be relevant in determining what inferences should be drawn from his participation in the transactions and as to the manner in which, for example, invoices were prepared and issued by him or cash withdrawals made by him and to whom that cash was delivered.
I note the observations of Rich, Dixon, Evatt and McTiernan JJ in Lustre Hosiery Ltd v York (at 143) that "a person who fails to contradict a statement concerning matters within his own knowledge may be understood as acquiescing in the statement if the circumstances are such as to make it unlikely that he'd allow an erroneous statement to pass unchallenged". Similarly, it may be that inferences are sought to be drawn (for or against Mr Said) as to the level of Mr Said's understanding (or lack thereof) of transactions in which he was purportedly engaged (and his apparent position as a director of Involved Recruitment).
In R v Hannes [2000] NSWCCA 503; (2000) 158 FLR 359, an appeal relevantly concerning admissibility of hearsay evidence under s 81, Spigelman CJ observed (at [364]) that, "[t]he standard proposed by the Crown in this case - the only proper exercise of [the s 135] discretion was exclusion - is a high standard which could rarely be met" (emphasis added).
In Donnelly, a case which concerned, principally, alleged error on the part of the primary judge in admitting into evidence, against the appellant, the transcript of the examination (pursuant to the relevant bankruptcy legislation) of a bankrupt (see at 428), the Full Court held (as to the s 135 discretion to exclude the otherwise admissible transcript) that the appellant had not made out a case for the exercise of the Court's discretion under either s 135 or s 136 of the Evidence Act (see at 435). Relevantly, as I read the judgment, the Full Court noted the following matters as militating against exercising the statutory discretion to exclude (see at 435-436): 1. the transcript evidence was not required to prove one of the relevant facts in issue (relevantly, the fact in question could be proved from other contemporaneous evidence that had been produced in response to a subpoena); 2. there was "little reason" to doubt the probative value of the bankrupt's evidence and "the bankrupt's striking reluctance to make the admissions strongly suggests that his evidence on this issue was reliable"; 3. the party seeking admission of the transcript "was virtually entirely dependent on others for the information and evidence necessary to establish his case"; and 4. the appellant had not itself adduced any evidence of the facts in issue (including, the appellant itself failing to call the bankrupt or members of the bankrupt's family in order to adduce direct evidence of the facts in issue).
The Full Court concluded as follows (at 435-436): In these circumstances, we do not think that CML has made out a case for the exercise of the Court's discretion under either s 135 or 136 of the Evidence Act. Some of the evidence sought to be adduced through the transcript was of considerable probative value and was not readily available from other sources. Much of the remaining evidence, such as the bankrupt's account of the sources of the cash, was, to say the least, of dubious probative value. But that evidence, if accepted, was unfavourable to the trustee and favourable to CML. Accordingly, the appropriate course was to admit the whole of the transcript A against CML pursuant to s 255(2) of the Bankruptcy Act.
In light of the preceding, I have concluded that Mr Said has not made out a case for exercising the discretion to exclude the parts of the transcript that I have identified above.

[59]

Schedule of Parties Proceedings Counsel: 1st Plaintiff: Mitchell Warren 2nd Plaintiff: Earth Civil 1st Defendant: Michael Abouantoun In the matter of Earth Civil Australia Pty Ltd 2016/000194955 4th Defendant: George Khalil 5th Defendant: Peter Abboud 6th Defendant: AKA (Civil) Pty Ltd 7th Defendant: AKA (NSW) Pty Ltd 5th Defendant: Gupta Co Law 1st Plaintiff: Mitchell Warren 2nd Plaintiff: RCG CBD Pty Ltd 1st Defendant: Banq Accountants 5th Defendant: Sivasli Pty Ltd 11th Defendant: Gino Cassaniti 12th Defendant: Faouzi Khalil In the matter of RCG CBD Pty Ltd 2016/00195008 29th Defendant: Borg Family Pty Ltd 30th Defendant: Tanya Michael Borg 31st Defendant: Borg Civil Australia Pty Ltd 32nd Defendant: Michael Borg 34th Defendant: Kamikaze 38th Defendant: George Said 1st Plaintiff: Mitchell Warren 2nd Plaintiff: Bluemine Pty Ltd (in liq) 3rd Defendant: LAM Haulage Pty Ltd 4th Defendant: M.A.L. Land Group Pty Ltd 5th Defendant: The Great Brothers Pty Ltd 11th Defendant: Gino Cassaniti 12th Defendant: Faouzi Khalil 13th Defendant: George Khalil In the matter of Bluemine Pty Ltd 2016/00256135 21st Defendant: Michael Abou-Antoun 23rd Defendant: AKA (NSW) Pty Ltd 24th Defendant: AKA (Civil) Australia Pty Ltd 29th Defendant: Borg Family Pty Ltd 30th Defendant: Tanya Michelle Borg 33rd Defendant: George Said 34th Defendant: Discobell Pty Ltd 35th Defendant: Ivana Cassaniti Counsel: Plaintiffs: I Faulkner SC / S Shepherd 1st Plaintiff: Mitchell Warren 2nd Plaintiff: Diamondwish Pty Ltd (in liq) In the matter of Diamondwish Pty Ltd 2016/00256272 10th Defendant: George Khalil 11th Defendant: Peter Abboud 28th Defendant: Ivana Cassaniti 11th Defendant: Gupta Co Law 28th Defendant: Kekatos Lawyers Counsel: Plaintiffs: I Faulkner SC / S Shepherd 1st Plaintiff: Mitchell Warren 2nd Plaintiff: Rackforce Pty Ltd (in liq) In the matter of Rackforce Pty Ltd 2016/00256503 7th Defendant: George Khalil 8th Defendant: Peter Abboud 9th Defendant: Ivana Cassaniti 8th Defendant: Gupta Co Law 9th Defendant: Kekatos Lawyers Parties Representation Ball in his capacity as liquidator of Earth Civil Pty Ltd Plaintiffs: I Faulkner SC / S Shepherd Australia Pty Ltd (in liq) 1st, 6th, 7th Defendants: R Seiden SC / R Johnson 2nd Defendant: D Feller SC / I Young / W Brewer 2nd Defendant: Gino Cassaniti 3rd, 4th Defendants: C Robinson 3rd Defendant: Faouzi Khalil Solicitors: Plaintiffs: Craddock Murray Neumann Lawyers 1st, 6th and 7th Defendants: Lionheart Lawyers 2nd Defendant: Paramount Lawyers 3rd, 4th Defendants: Cambridge Law/Raed Rahal Ball in his capacity as liquidator of RCG CBD Pty Ltd Counsel: and Advisors Pty Ltd Plaintiffs: I Faulkner SC / S Shepherd 5th, 12th, 13th, 34th , 38th, Defendants: C Robinson 11th Defendant: D Feller SC / I Young / W Brewer 29th to 32nd Defendants: M Condon SC / P Afshar 13th Defendant: George Khalil Solicitors: 14th Defendant: Peter Abboud Plaintiffs: Craddock Murray Neumann Lawyers 5th, 12th, 13th, 34th, 38th Defendants: Cambridge Law/Raed Rahal 11th Defendant: Paramount Lawyers 14th Defendant: Gupta Co Law 29th to 32nd Defendants: MistryFallahi Teppanyaki (Darling Harbour) Pty Ltd Ball in his capacity as liquidator of Bluemine Pty Ltd (in liq) Counsel: Plaintiffs: I Faulkner SC / S Shepherd 3rd, 4th, 5th, 20th, 21st, 23rd, 24th Defendants: R Seiden SC / R Johnson 11th Defendant: D Feller SC / I Young / W Brewer 12th, 13th, 33rd Defendants: C Robinson 29th, 30th Defendants: M Condon SC / P Afshar 34th Defendant: D Allen 35th Defendant: D Cook SC / A Katsoulas 14th Defendant: Peter Abboud Solicitors: 20th Defendant: Andre Abou-Antoun Plaintiffs: Craddock Murray Neumann Lawyers 3rd, 4th, 5th, 20th, 21st, 23rd, 24th Lionheart Lawyers 14th Defendant: Gupta Co Law 11th Defendant: Paramount Lawyers 12th, 13, 33rd Defendants: Cambridge Law/Raed Rahal 29th, 30th Defendants: MistryFallahi 34th and 35th Defendants: Kekatos Lawyers Ball in his capacity as liquidator of Diamondwish Pty Ltd (in liq) 8th Defendant: D Feller SC / I Young / W Brewer 9th, 10th Defendants: C Robinson 8th Defendant: Gino Cassaniti 28th Defendant: D Cook SC / A Katsoulas 9th Defendant: Faouzi Khalil Solicitors: Plaintiffs: Craddock Murray Neumann Lawyers 8th Defendant: Paramount Lawyers 9th and 10th Defendants: Cambridge Law/Raed Rahal Ball in his capacity as liquidator of Rackforce Pty Ltd (in liq) 5th Defendant: D Feller SC / I Young / W Brewer 6th and 7th Defendants: C Robinson 5th Defendant: Gino Cassaniti 9th Defendant: D Cook SC / A Katsoulas 6th Defendant: Faouzi Khalil Solicitors: Plaintiffs: Craddock Murray Neumann Lawyers 5th Defendant: Paramount Lawyers 6th, 7th Defendants: Cambridge Law/Raed Rahal

In the matters of Earth Civil Australia Pty Ltd, RCG CBD Pty Ltd, Bluemine Pty Ltd, Diamondwish Pty Ltd and Rackforce Pty Ltd (all in liq) [2020] NSWSC 293

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