King v Adams & Ors

No Error in Primary Judge's Factual Findings

Each of the other 13 members of the second syndicate gave evidence. All except two, Xay and Mico, said that they had paid $50 to Mr Adams before 4 May. Mr Gyles submitted that the primary judge should have found that three members of the second syndicate (who were also members of the syndicate of 12) had not paid their $50 prior to Mr Adams' buying the tickets on 4 May 2016. They were a Mr Andres, a Mr Singh and a Mr Cheak.
Mr Adams did not go into detail of exactly when each of the other members of the second syndicate paid him $50. His evidence, that was accepted by the primary judge, was that by the end of his shift on 3 May he had collected $600 and used the moneys he had collected from the members of the second syndicate, together with his own $50 to buy tickets before he went to work on Wednesday, 4 May.
In his affidavit, Mr Andres said that early in the week commencing Monday, 2 May 2016 he was in the lunchroom with Mr Singh and a couple of other workmates when Mr Adams said words to the effect: "There's a big Powerball coming up. How about we all throw in $50?" Mr Andres deposed that he gave Mr Adams $50 cash on the spot.
In his affidavit, Mr Singh deposed that early in that week he was in the lunchroom with Mr Andres, Mico and Mr Adams, and Mr Adams said words to the effect of "There is a $40 million Powerball. If you want to play, it is $50 each". Mr Singh said that $50 was a lot of money for him and he wanted to speak to his wife before agreeing to go in the draw. He did not give Mr Adams his money on the spot. But with the approval of his wife he gave Mr Adams $50 the next day.
Mr Cheak deposed that on Monday, 2 May he was in the lunchroom with Mr Adams, Mr Andres, Mr Singh and Xay and that Mr Adams said something like "There's a big one this week. $50 a head. I am collecting the money tomorrow." Mr Cheak deposed that he went to his locker immediately after the meal break, got $50 and gave it to Mr Adams that day, and that Mr Adams clipped his $50 into his book.
The primary judge did not accept all of the evidence of these witnesses. But he did accept that they each paid Mr Adams their $50 before 4 May. In relation to Mr Andres the primary judge found (at [298]): "On balance, while I have doubts over when exactly Mr Adams spoke to Mr Andres about entering the Winning Syndicate, I am satisfied that such a conversation occurred prior to the 4 May, that Mr Andres paid $50 to Mr Adams before the 4 May and received a copy of the ticket prior to the draw."
In relation to Mr Singh the primary judge found (at [294]): "I am satisfied that, after checking with his wife, Mr Singh paid Mr Adams the $50 and received a copy of the ticket prior to the draw, not necessarily on 2 May but likely to be on the 3 May when he crossed shifts with Mr Adams."
In relation to Mr Cheak the primary judge found (at [282]): "Mr Cheak may well be in error when he purported to recall the circumstances in which Mr Adams spoke with him. However, regardless of who he was with, I still accept that he gave Mr Adams the $50 following a conversation with him prior to the draw.
The primary judge did not expressly find that Mr Cheak paid his $50 prior to 4 May, but that is necessarily implied from his acceptance of Mr Adams' evidence. In relation to Mr Adams' evidence the primary judge found (at [251]-[252]): "[251] Mr Adams denied that he had subsidised anybody when he purchased the winning ticket. The plaintiff's alternative case would have to be, if accepted, that he had subsidised the purchase by a considerable margin. Their analysis of the case invited the Court to accept that Mr Adams simply could not have collected anywhere near $600 by 4 May when he went to the newsagency. I do not regard that as a viable theory on the facts. It runs contrary to Mr Adams' sworn evidence which I have already indicated I accept. The Plaintiff meticulously analysed the Prysmian time records to attempt to undermine each of the various defendants who purported to corroborate Mr Adams version of events. However, I still regard the defendants' responses and analysis to be more plausible and persuasive. [252] Absent some wholesale conspiracy, a case theory which unsurprisingly was not put, all the inconsistencies that arose between the various defendants and Mr Adams were in my view perfectly understandable."
Mr Gyles submitted that para [252] of the primary judge's reasons set up a straw man and it had not been Mr King's case that there was a wholesale conspiracy. That may be accepted. But that does not diminish the force of the primary judge's observation that inconsistencies in the recollection of witnesses called for the defendants were perfectly understandable. Such inconsistencies did not require the primary judge to reject Mr Adams' evidence.
The reason Mr King attacks this evidence is that each of the employees at the Prysmian factory had to clock in and clock off. They worked different shifts between 5am to 10 or 11pm. They clocked in and clocked off some little time before the beginning and after the end of shifts.
On Monday, 2 May 2016 the shifts of Mr Adams, Mr Cheak and Mr Singh overlapped by a little over 20 minutes between 1.39pm and 2.02pm. Mr Andres finished his overnight shift that morning at 6.04am and did not clock on for his next shift until 5.09am the following day. On 3 May 2016 Mr Adams, Mr Andres, Mr Singh and Mr Cheak were at the factory between 1.41pm and 2.00pm. On that day Mr Adams clocked in at 1.41pm and clocked off at 10.15pm. Mr Andres was there from 5.11am to 6.00pm, Mr Singh from 5.46am to 2.00pm, and Mr Cheak from 5.48am to 6.00pm.
Mr Gyles argued that a lunchtime meeting could not have taken place on Monday, 2 May 2016 with all four individuals (Messrs. Adams, Andres, Singh and Cheak) because Mr Andres had clocked off at 6.04am that morning. A lunchtime meeting between all four individuals could have taken place on 3 May 2016. But if the lunchtime meeting took place on 3 May, Mr Singh could not have paid his $50 until 4 May 2016 at the earliest because he conferred with his wife overnight about participating in the syndicate. Mr Adams purchased the tickets before he arrived at work on 4 May. Mr Gyles argued that the meeting probably occurred on Wednesday, 4 May 2016, but if Xay attended the meeting, then it probably did not occur until 5 May 2016 because on that day all of the relevant people were at the factory at the same time and for an extended period of time.
Mr Adams collected the money from his sons, Matthew and Bradley, at home. He could not say when the other members of the syndicate paid their $50 (except for Mico and Xay who did not pay until after the tickets had been bought). He said: "I can't remember when my boys gave me the money, but the guys at work, I didn't start collecting until after I started my shift, Monday 2.00pm". He agreed that it was consistent with his recollection that he told "at least certain people" about his intention to have the Powerball syndicate whilst he was in the lunchroom. When Mr Singh's evidence of the lunchtime meeting was put to Mr Adams and he was asked whether he agreed that it was most likely that the meeting would have taken place in the meal break, his response was "It could have been the meal break, it could have been change of shift." He also said that "we do pass each other quite often in the warehouse and it's not like we just ignore each other, we do talk, so it's quite possible that conversations will take place on the warehouse floor." When Mr Andres' version of a meeting in the lunchroom was put to Mr Adams and he was asked whether that jogged his memory, his response was "No, not really".
He gave the following evidence: "Q. That means to the extent that there [was] a meeting that took place between you and others in the lunchroom it may have happened on the Monday? A. Yes. Q. It may have happened on the Tuesday? A. As well, yes. … Q. It could have happened on the - this, the meeting could have happened on the Wednesday? A. No, I put the Powerball on Wednesday."
He adhered to his evidence that he had collected the $600 before the tickets were purchased.
The primary judge was not bound to accept the evidence of Mr Singh, Mr Andres and Mr Cheak that all three were present with Mr Adams at a meeting in the lunchroom when he advised them that he was collecting money for the Powerball Draw. It is only if that evidence was correct, and that was the only occasion upon which Mr Adams spoke to those individuals about collecting their money, that there is any inconsistency in the accounts as to how the money was collected. Such inconsistency as there was between the accounts of those witnesses and the factory time records did not require the primary judge to reject the evidence of Mr Adams that he had collected the money from all but two members of the second syndicate at the time he purchased the tickets on 4 May 2016. Nor did it require the rejection of the evidence of Mr Andres, Mr Singh and Mr Cheak that they had paid their moneys by 3 May 2016.
Mr Adams kept an exercise book. He deposed that he recorded in that book the names of the 14 members of the syndicate who won the $40 million Powerball prize on 5 May 2016. He did not say that he wrote down the names in the order in which the individuals gave him money. He deposed that he recorded all of the information on the page before the draw. He deposed: "56. On 29 April 2016 I sent a text to Peter Prasad and invited him to go in the draw. From 29 April 2016, I invited workmates with whom I came into contact to contribute $50 to join the Winning Syndicate and by the time my shift finished at 10pm on Tuesday, 3 May 2016, I had collected a total of $600 in cash which I put on a clip in the exercise book. The $600 included $50 that Brad, Matt and I had each paid. It also included $50 collected from each of the other people [identified] on page 7 of annexure RLA2 except Vientxay Thattamanivong, (whom I know as Xay) and Silvestre Mico. However, each of them told me that they wanted to take part in the Winning Syndicate. 57. I wrote down the names of the people who gave it to me in the exercise book."
The page in question lists 14 names beginning with Mico and Phong. It has a series of ticks against the names and in handwriting the words "Bank $100". It also has the number 14 encircled. The words "Bank $100" refer to a kitty, as Mr Adams did not deposit the cash, but kept it clipped to the exercise book.
Mr King challenged the authenticity of this document as a contemporaneous record completed prior to the draw. It was put to Mr Adams in cross-examination that the names were not listed in order of receipt of payment. He agreed with that proposition. It was then put to him: "Q. So this is not a contemporaneous running record that you made at the time of being given the money is it? A. No."
The cross-examination continued: "Q. Therefore - and given the fact that you've got all of these names on the list, it can only have been prepared after you received the last payment; that's right, isn't it? A. Yes, that makes sense, yes."
In fact, the premise of the question is incorrect. It does not follow from the fact that the document was not a contemporaneous running record made at the time payments were made that it could only have been prepared after the last payment was received. Mr Adams' assent to the proposition contained in the question was an assent to what was put to him as the logical corollary of the document's not being a contemporaneous running record of receipts. Later, the question was put to him more directly: "Q. … This is a list that's been prepared after you received all the money; that's right, isn't it?"
Mr Adams responded: "A. The only thing I can suggest if I may, is because - HIS HONOUR: Mr Adams, I'm going to interrupt you. I'd like you to answer the question first that's just been posed, and then move on, and make your suggestion. So put it again, Mr Gyles. … Q. What I'm putting to you was that this document must have been prepared after all the moneys had been received. A. I don't know."
The following exchanges then occurred: "HIS HONOUR: I'm not sure that I'll allow that, Mr Gyles, because it really doesn't speak for the universe. There are permutations and connotations which you'll have to live with, unless you want to - GYLES: All right. Q. Mr Adams, you are not saying, are you, that when, for example, Matt paid you his $50, you had this book there, you wrote Matt's in and you ticked it off at the time, are you? A. No. HIS HONOUR: Can I just interrupt you just one moment, Mr Gyles. GYLES: Sure, your Honour. HIS HONOUR Q. [Mico] is the person whose name is at the top of the list, correct? A. Yes, your Honour. Q. But he was a person who was one of two, I think I said a little earlier who were the last person or persons to pay you? A. Yes, your honour. Q. Is another possibility that you comprised the list, and then ticked people off as they paid you? A. Yes. Q. Because otherwise if [Mico] paid you virtually last, along with [Xay], logically, unless you had pre prepared the list, you would expect to find those names, wouldn't you, I don't know, second last and last on the list? A. I think that's what I've done. Q. Well, but in other words, you've comprised the syndicate, if I can call it that, or the group, whatever reason, and however you have, and then you've ticked people off as [and] when they've paid you? A. Yes."
No objection was taken to the primary judge's questions. Later, Mr Adams, in response to a question from Mr Gyles, said that he thought he used a green drum card in the beginning (this was a piece of cardboard) to record the time at which money was received by the individuals in the syndicate and then recorded what was in the drum card into the exercise book. In response to a question from the primary judge, Mr Adams said he believed that he created the page in the exercise book before the draw. When asked why, he said "Well that's how I worked every lotto. The names would be either on a drum card or in the exercise book before a draw." He rejected the suggestion that he created the record after the draw to seek to establish some formality about the fact that Mr King had been excluded from the syndicate.
The primary judge was satisfied that Mr Adams wrote down the names of the 14 members of the syndicate before the draw. His Honour found (at [247]): "I am also satisfied that he created the list (of the 14) not necessarily in the order that people paid him but perhaps in the order he met them and/or they indicated they would be party to the syndicate. I consider it likely that he ticked their names off when they paid him. Although it was put to him that this was not the case, I am satisfied that he created the list and ticked the names off prior to the draw."
That is the obvious inference from the form of the exercise book. If it had been a contemporaneous record of receipts of payments, there would have been no need for Mr Adams to have both written the name of the individual making the payment and then to have placed a tick against that person's name.
Mr Gyles submitted that it was inappropriate for the primary judge to have engaged in the cross-examination in the way his Honour did and then to have made findings consistent with the suggestions his Honour put to the witness. He submitted that Mr Adams' main evidence had "been really blown out of the water because he was relying upon a document which wasn't, he accepted, a contemporaneous running record."
I do not accept that submission. The primary judge's intervention was occasioned by a question that was apt to confuse the witness, and which did confuse the witness. The question suggested that because the page in the exercise book was not a contemporaneous running record of receipts, it could only have been prepared after the last payment was received. In my view the primary judge was right to intervene before Mr Adams was led down a path based upon his acceptance of the proposition that, as a matter of logic, the list could only have been prepared after he received the last payment. It would have been better for the primary judge to have sought clarification by way of non-leading questions, but no objection was taken to those questions. The framing of the questions may have been influenced by the judge's assessment of the degree to which Mr Adams was flummoxed.
The evidence concerning the preparation of the page of the exercise book did not necessarily damage Mr Adams' credit. Contrary to Mr Gyles' submission, Mr Adams' evidence on this topic was not "blown out of the water". I do not consider that the primary judge has been shown to have committed any error in his assessment of Mr Adams' credit. There was no fact clearly established by objective evidence or uncontested testimony with which Mr Adams' evidence was inconsistent. His Honour's findings were not in the least improbable, let alone glaringly so (Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [28]-[29]).
Mr Gyles submitted that if Mr Adams had only collected $450 at the time the tickets were purchased, then it should be concluded that his intention, as objectively ascertained, was to buy the additional tickets for the syndicate of 12, of which Mr King was a member. Mr Gyles submitted that he must have been purchasing for 12 people because he bought $600 worth of tickets and was dealing in lots of $50. This does not follow. It is not disputed that Mr Adams had received payment from two individuals (Phong and Lai) who were not members of the syndicate of 12. Even if Mr Adams had only collected $450 it does not follow that it should be inferred that Mr Adams intended to buy the tickets for the syndicate of 12. It must be inferred that he was buying tickets for a syndicate that included at least two individuals who were not members of the syndicate of 12, but had paid their money.
Because Mr King has not demonstrated that Mr Adams used moneys held for the syndicate of 12 in the purchase of the tickets that included the winning ticket on 4 May 2016, it is unnecessary to consider his alternative case that, as a member of that syndicate, he had a beneficial interest in the $40 million prize because he had a beneficial interest in the moneys he contended had so been used.

At a glance

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Judgment (7 paragraphs)

Parties

Cases Cited (8)

Cited By (1)