Discussion (matters occurring in 2011)
97It is argued on behalf of Mr Levy that the proposal in which Mr Petroulias, Ms Bakis and Mr Daley participated in 2011 was "strikingly similar" to that presented to Mr Levy in 2005. The similarities are said to be that it was an investment in something called a "private placement", it was exclusive and only available by invitation, it required a deposit of funds into a European bank where the funds were "blocked" and could not be accessed by the bank and it promised the return of the funds within a year with at least 100 per cent profit. It is said that the asserted similarities between these transactions provide a basis for inferring that Mr Bablis was also involved, seemingly as a principal, in the transactions in which Mr Levy took part in 2005.
98For this evidence to be admissible for that purpose it must satisfy the requirements of the coincidence rule and, specifically, paragraphs (a) and (b) of subsection 98(1) of the Act which provide:
"98 The coincidence rule
(1) Evidence that 2 or more events occurred is not admissible to prove that a person did a particular act or had a particular state of mind on the basis that, having regard to any similarities in the events or the circumstances in which they occurred, or any similarities in both the events and the circumstances in which they occurred, it is improbable that the events occurred coincidentally unless:
(a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party's intention to adduce the evidence; and
(b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value."
99It is sufficient to address paragraph (b). That provides that coincidence evidence is not admissible unless the relevant court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced, "have significant probative value". In Jacara Pty Ltd v Perpetual Trustees WA Ltd (2000) 106 FCR 51, Sackville J (Whitlam and Mansfield JJ agreeing), considered the meaning of the expression "significant probative value" where used in s 97(1)(b) in relation to the tendency rule: esp at [72]-[74]. There is no reason why the expression should be given any different meaning where it appears in s 98(1). It requires, by use of the word "significant", more than that the relevant evidence satisfy the test for relevance in s 55 of the Act.
100For this Court the question is whether this evidence would be admissible in a rehearing of Mr Levy's pleaded claims, other than those for breach of contract, as similar fact evidence. Unless this Court is satisfied that it would be admissible and that the evidence would probably produce a different outcome, there would be no reason for ordering a new trial on the basis that a "substantial wrong or miscarriage" had occurred by its not having been available and led: UCPR r 51.53(1).
101To consider the probative value of this evidence, it is first necessary to identify the 2011 "event" or circumstance which is said to be similar to that or those which occurred in 2005. That event is described in the submissions as the "proposal" in which Mr Petroulias participated in 2011. That proposal could be the "TITO" deal or the more specific transaction involving the payment of $140,000 and further payment of $68,550. The details of the "TITO" deal are not explained by the evidence. The three documents purportedly issued by HSBC Holdings PLC in relation to that deal are not self-explanatory. They, no doubt deliberately, use much jargon and include references to "blocked" funds and "safekeeping" receipts. How they relate to any transaction proposed by Mr Bablis or in which he was engaged is not explained. In one conversation with reference to the HSBC documents, Mr Bablis is said to have referred to "a huge trade", to their being the documents "that secure the trade" and to the money never leaving the bank account. However, none of this evidence establishes that in 2011 Mr Bablis was engaged in a transaction which had the characteristics of a "private placement" as explained by Mr O'Dowd to Mr Bablis, or the nature of Mr Bablis' involvement in such a transaction.
102The details of the more specific transaction are clearer. However, there are a number of differences between that transaction and the "private placement" transactions in which it is alleged Mr Levy was engaged in 2005. The 2011 transaction did not involve Mr O'Dowd. It was not described as a "private placement". It did not involve a deposit into a recognised bank. It did not involve a deposit for a term of six to twelve months which would provide a return of between 50 to 100 per cent. It did not involve any pooling of funds to produce an amount of $10m or $20m. It involved the deposit of funds with a solicitor apparently to be held and not paid away. The exact nature of Mr Bablis' involvement in that transaction remains unclear. He does not seem to have been a borrower of the funds advanced by Mr Petroulias, Ms Bakis and Mr Daley.
103If the more specific transaction is taken as the relevant 2011 transaction, the transactions relied upon for the application of the coincidence rule occurred six years apart, seem to have involved different parties as principals and had the significant differences referred to above. There is no point of similarity between them or the circumstances in which they occurred, which provides a logical basis for concluding that because Mr Bablis is shown to have acted in a particular way or with a particular state of mind in 2011, it is probable that he also did so six years earlier in relation to any transaction which then occurred. The submissions made on behalf of Mr Levy did not address these difficulties or formulate with any precision the particular facts the existence or non-existence of which this evidence is said to make more or less probable by reason of asserted similarities in the relevant transactions or circumstances in which they occurred.
104For these reasons, the evidence as to these events in 2011 would not be admissible as coincidence or similar fact evidence probative of the fact or extent of Mr Bablis' involvement in the alleged 2005 transactions. It does not have any, let alone "significant", probative value for that purpose.
105The statement of Mr Bablis to Mr Petroulias in February 2011 relied upon as an admission of his earlier involvement in a number of "trades" does not identify the "trades" referred to, or describe when they took place or who were the parties to them. It suggests that Mr Bablis was involved in such "trades" for a period of five years before he had met Mr O'Dowd. An inference that after they had met, Mr Bablis earned commissions from transactions involving Mr O'Dowd would be inconsistent with the primary judge's finding at [319] which was based on a consideration of contemporaneous email communications. These uncertainties and inconsistencies make it impossible to conclude that this evidence was likely to have led to a different outcome before the primary judge.
106These conclusions make it unnecessary to consider the other bases upon which it was argued on behalf of Mr Bablis that the evidence as to his dealings with Mr Petroulias in 2011 was not admissible in the appeal and therefore not available to be considered as further evidence under s 75A(7). For completeness, however, I will record briefly my views in relation to those arguments.
107Mr Daley did not swear an affidavit or give oral evidence. A signed statement was tendered but he was not made available for cross-examination. No objection was taken that his evidence tendered in the appeal was not given by affidavit and therefore did not comply with UCPR r 51.51(4). The signed statement was objected to as hearsay and said not to be admissible because of s 59 of the Act. Mr Levy relied upon s 63(2) which provides that the hearsay rule does not apply if the maker of the statement or previous representation sought to be tendered is "not available" to give evidence. That last expression is defined in cl 4(1) in Part 2 of the Dictionary to the Act. The relevant paragraph of cl 4(1) is paragraph (f) which requires that for a person to be taken "not to be available", the party tendering the evidence must show that "all reasonable steps have been taken, by the party seeking to prove the person is not available, to find the person", but without success. (Clause 4(1) was amended by the Evidence Amendment Act 2010 which came into effect on 14 January 2011. As a result of that amendment the relevant paragraph became paragraph (f)). The evidence relied upon by Mr Levy in support of that conclusion is evidence of his solicitor, Mr Tsolakis, in an affidavit sworn on 29 May 2012. That affidavit shows that at a very late stage in the appeal proceedings, searches were undertaken of the electoral roll and of the White Pages in order to locate telephone and other details for persons named Ian Daley. Notwithstanding that at the time those searches were undertaken the evidence shows that Mr Levy and his solicitors had a residential address, an email address and a fax number for Mr Daley, there is no evidence that any inquiries were made at that residential address, or that any attempt was made to communicate with Mr Daley via the email address or fax number. In these circumstances, this Court cannot be satisfied that reasonable steps were taken to locate Mr Daley. Accordingly, the exception in s 63(2) did not apply and Mr Daley's statement was not admissible as evidence in the appeal. I should add that the admission of that evidence was not critical to the success of Mr Levy's argument in relation to this further evidence, because Mr Daley's evidence went no further than the evidence of Mr Petroulias and Ms Bakis.
108There was also objection to parts of the affidavit of Mr Petroulias. They included objections to his evidence of statements made by Ms Dabelic concerning Mr Bablis as hearsay which was not within any relevant exception to the hearsay rule. Reliance was placed on the admissions exception to that rule. However, the evidence did not establish that Ms Dabelic had authority to make admissions on behalf of Mr Bablis or that any admissions that she made were made within the scope of her employment by Mr Bablis: cf s 87 of the Act. That hearsay evidence would not, therefore, have been admissible at any new trial to prove the truth of what was asserted.
109Objection was also taken to the admissibility of the recordings made of the meetings which occurred on 14, 17 and 19 August 2011. It was accepted in argument that those recordings and transcripts would only be admissible if they were within the exception in subsection 7(3)(b)(i) to the prohibition in subsection 7(1) of the Surveillance Devices Act 2007. That exception is that a principal party to the recorded conversation consents to the listening device being used and that the recording of the conversation is "reasonably necessary for the protection of the lawful interests of that principal party". It was argued that the making of the recording was reasonably necessary for the protection of the lawful interests of Mr Petroulias. I do not agree. What Mr Petroulias sought to achieve by making the recording was not to protect any lawful interest he might have had in maintaining an action against Mr Bablis or Ms Dabelic for recovery of any advances made. The conversation was not recorded for the purpose of obtaining admissions as to the transactions which had been undertaken and in respect of which Mr Petroulias may have had legal rights. It was recorded to trap Mr Bablis and Ms Dabelic into engaging in further conduct, the threat of disclosure of which Mr Petroulias could then use to "persuade" them to meet their asserted obligations under the earlier transactions. That reason for making the recording did not involve the "protection" of any lawful interest of Mr Petroulias: see the discussion in Sepulveda v The Queen [2006] NSWCCA 379; 167 A Crim R 108, esp at [113]-[142].
110In the result, none of the further evidence of Mr Petroulias' dealings with Mr Bablis is such that, if available, it would have been admissible and would have led to a different outcome to one or more of Mr Levy's claims for breach of fiduciary duty, misleading or deceptive conduct or negligent misstatement. For that reason, it cannot justify the allowing of the appeal and the ordering of a new trial of any of those claims.