Federal Court of Australia

Alexiou v Australia and New Zealand Banking Group Limited (Ruling on Evidence) [2025] FCA 1309

REASONS FOR JUDGMENT

PERRAM J:

1    On Tuesday 14 October 2025 I overruled an objection to a question asked by Mr Withers SC of Mr Santamaria. These are my reasons for that ruling.

2    To grasp the nature of the objection it is necessary first to understand the factual picture which has emerged in relation to two of the complaints which the applicant, Mr Alexiou, alleges led to various steps being taken against him by the respondent (‘ANZ’). The first is referred to in the Third Further Amended Statement of Claim (‘3rd FASOC’) as the ‘October 2011 Complaint’ and appears at §168. The context for this complaint is Mr Alexiou’s evidence that on 30 September 2011 he witnessed a trader, Mr Pritchard, say that he was going to ‘slaughter’ the BBSW rate set and another, Mr Morris, say that the Reserve Bank of Australia had called to ask whether ANZ had a funding problem (which would explain why ANZ was selling bank bills into the rate set window).

3    Mr Alexiou says that he was troubled by this and on Tuesday, 4 October 2011, informed his line manager, Mr O’Callaghan, of it. Mr O’Callaghan was the Global Head of Fixed Income. Mr Alexiou’s evidence (at [149] of his affidavit dated 21 December 2022) is as follows:

Given my concerns, on Tuesday 4 October 2011 I had a conversation with Rob O’Callaghan, Global Head of Fixed Income, who was my line manager and Jason Pritchard’s line manager:

Me:

“I heard Jason Pritchard say that he was going to ‘slaughter’ the rate set. I am worried about the use of the term ‘slaughter’ in relation to the BBSW. It is unprofessional and reflects poorly on the bank.”

Rob O’Callaghan:

“We don’t use that term.”

Me:

“The RBA called Matt Morris on 30 September 2011 to enquire whether ANZ had a funding problem. I have also received complaints from other banks. Can we look into the trades during the BBSW rate setting window on 30 September 2011?”

Rob O’Callaghan:

“The issue will be looked into.”

“What’s your opinion about the structure of Global Markets and Group Treasury? In your opinion, should Global Markets have greater control of the issuance of NCD’s and Bank Bills? There was a strategy paper put up to Shayne Elliott and Steve Bellotti about it last year.”

Me:

“I think that the structure should not be changed as the separation of duties between funding the bank and trading is an important control mechanism.”

4    There are at least two issues between the parties about this evidence. The first is whether it was ever said. The second, which assumes that it was, is whether it is capable of constituting a disclosure for the purposes of Part 9.4AAA of the Corporations Act 2001 (Cth) (‘Corporations Act’) or Part VIA of the Banking Act 1959 (Cth) (‘Banking Act') or a complaint in relation to Mr Alexiou’s employment for the purposes of s 341(1)(c)(ii) of the Fair Work Act 2009 (Cth) (‘FW Act’).

5    Mr O’Callaghan left ANZ many years ago and neither party is calling him as a witness. There is some other evidence about the conversation, however. First, Mr Huston has given evidence (at [48] of his affidavit dated 15 November 2023) that he commenced as Co-Head of Fixed Income, Currency and Commodities in June 2014. He says that he had a conversation with Mr Alexiou after that commencement the specifics of which he cannot recall. However, he does say that the conversation was ‘in relation to the subject matter of the alleged October 2011 Complaint’. If this evidence is accepted, then it shows that Mr Alexiou was mentioning the alleged discussion with Mr O’Callaghan to other people after June 2014.

6    Secondly, there is documentary evidence in the form of an email in which Mr Alexiou mentioned the alleged discussion with Mr O’Callaghan to Mr Pucci on 18 July 2014. The email is as follows:

Fred,

I would like to see what was recorded by group investigations when I disclosed a concern I had in BBSW back in late 2011.

I was interviewed by someone from that group (ex cop from Melb) and was subsequently told by Rob O’c that my concern had been looked at and was ‘all fine’.

I am just wanting to check that this is the case, happy to discuss.

7    Thirdly, Mr Evans gives evidence of a discussion he had with Mr Pucci on the same day where Mr Pucci informed him that he had received the above email.

8    Apart from providing evidentiary support for Mr Alexiou’s own evidence about the alleged discussion with Mr O’Callaghan in October 2011, the above email also constitutes what the 3rd FASOC refers to as the ‘18 July 2014 Complaint’. Unlike the October 2011 Complaint, there is no issue that Mr Alexiou did indeed write these words to Mr Pucci on 18 July 2014 since the email constitutes irrefutable evidence to that effect. However, as with the October 2011 Complaint, ANZ denies that the email to Mr Pucci can be a disclosure under the relevant Corporations Act or Banking Act provisions or a complaint under the relevant FW Act provisions.

9    During the cross-examination of ANZ’s then general counsel, Mr Santamaria, it became apparent that Mr Alexiou’s email to Mr Pucci of 18 July 2014 had set in train efforts within ANZ to locate any record of the alleged conversation between Mr Alexiou and Mr O’Callaghan on 4 October 2011. These efforts appear to have been unsuccessful. Because no such record could be found, Mr Santamaria said in his evidence that he regarded Mr Alexiou’s email to Mr‍ Pucci as being ‘transparently false’.

10    That Mr Santamaria held that view is corroborated by an email he sent to the chair of ANZ, Mr‍ Gonski AC, on 5 January 2015. The context for the email was an article which had been published on the front page of the Australian Financial Review on that day. That article had identified Mr Alexiou and Mr Pritchard as two of the traders who had been stood down. In his first email, Mr Santamaria stated that one of the traders (which was Mr Alexiou) was ‘quite calculating’ whilst the other was ‘clearly quite unwell’. Mr Santamaria’s observation that Mr‍ Alexiou was ‘quite calculating’ had then engendered an inquiry from Mr Gonski about what it was that Mr Santamaria had meant in saying that. Mr Santamaria then responded in the following terms:

A few instances:

1.    When he first came to our attention in the investigation, he produced a transparently false story that he had reported our trading strategies under our whistleblowing process.

2.    When we stood him down and it made the press, he got his lawyers to write a letter threatening us with defamation etc.

3.    When I met with him and his lawyers to reassure him we had not abandoned him, his lawyer immediately asked if we would stand ‘shoulder to shoulder’ with his client throughout. Perhaps a fair question but I said that, as far as I was concerned, we would always be guided by the need to keep the interests of the Bank paramount. In nearly all instances, this would mean the interests of his client and those of the Bank would align – but the paramount principle would apply.

4.    He then wrote me a personal note, thanking me for arranging the meeting and wishing me and my family the best for Christmas. I wish I could have taken it at face value.

Hope that gives you some sort of picture, David.

Bob

11    Mr Santamaria was cross-examined extensively about this. During that cross-examination, Mr‍ Santamaria gave evidence that it was his view at around 5 January 2015 (the date of the article in the Australian Financial Review) that Mr Alexiou was unlikely ever to work for ANZ again. The cross-examination then touched on the internal process by which it was determined which employees would be stood down. The evidence suggests that ANZ adopted a colour coded system of categorising employees as red, amber or green. This categorisation was also referred to as the traffic light system. Employees who were placed into the red category were eventually stood down. The criteria for being placed in the red category are perhaps disputed.

12    It was in the context of these two matters that the following exchange occurred at T690.38-46:

Mr Withers:     

So the question I was asking you yesterday concerned your views at 5 January. And it’s right, isn’t it, that if you had that view on 5 January that Mr Alexiou would never work for the bank again, it’s reasonable to conclude, isn’t it, that you must have also held that view in November of 2014?

Mr Santamaria:        

That – that makes sense. I – yes.

Mr Withers:     

All right. And that’s why I’m suggesting that, in these discussions about who goes into what categories, red and otherwise, one of the factors that must have been on your mind was the view that he was never likely to work for the bank again?

Ms Morgan:    

I object.

13    The first question and answer establish that Mr Santamaria held the belief that Mr Alexiou had engaged in a transparently dishonest communication and for that reason was unlikely to have much of a future at ANZ. The second question then seeks to take that belief of Mr Santamaria and to use it as an input into a number of other decisions about which Mr Alexiou complains. The first of these decisions is the decision that was made on 19 November 2014 to stand him down. The standing down is alleged at §215 of the 3rd FASOC and at §§216 and 220 it is alleged that the decision was taken for various reasons. Relevantly, these reasons include the reason that Mr Alexiou had made the October 2011 Complaint to Mr O’Callaghan and the reason that he made the 18 July 2014 Complaint to Mr Pucci.

14    In ANZ’s Defence, it alleges that the person who made the standing down decision was Mr‍ Géczy: §190. The forensic challenge for Mr Alexiou is how to link Mr Santamaria’s belief on or around 5 January 2015 that Mr Alexiou was a transparent liar who was unlikely to have a future with ANZ, with the decision made by Mr Géczy to stand him down. There are, in fact, two challenges. The first is factual and involves a contest about the influence of Mr Santamaria on the various decision-making processes which were underway within ANZ. The second is legal and proceeds on the assumption that the first problem has been surmounted.

15    Dealing first with the factual issue, Mr Alexiou alleges at §190 of the 3rd FASOC that in making the standing down decision the corporate mind and will of ANZ was that of the Project Arrow committee or in the alternative, presumably collectively:

(a)    the Project Arrow committee;

(b)    the Chief Executive Officer of ANZ;

(c)    the Executive Committee; and

(d)    the Board of ANZ.

16    This is denied by ANZ which relevantly for present purposes says that the standing down decision was made by Mr Géczy: §190. In his reply, Mr Alexiou takes issue with this and (speaking of all of the decisions and not just the standing down decision) says at §7(b) that:

…given the nature of the decisions listed in paragraph 190(b), there is an inference available that each of the persons identified in paragraph 190(b) would have consulted with and discussed their decision with other officers and senior managers of ANZ, including committees of other officers and senior managers of ANZ, whose knowledge is attributable by ANZ.

17    Consistently with this plea, evidence has been adduced which provides some support for the idea that Mr Santamaria might have been involved in Mr Géczy’s decision to stand down Mr‍ Alexiou. The evidence consists of a spreadsheet dated 12 November 2014 one reading of which may appear to allot accountability for the decision to stand down the traders in the red group (including Mr Alexiou) to Mr Santamaria: ABG.1900.0505.4974.

18    Turning secondly then to the legal issue, it is this: the evidence that Mr Santamaria regarded Mr Alexiou as a transparent liar who was unlikely to have much of a future with ANZ emerged only during his cross-examination (although the email to Mr Gonski upon which the cross-examination had been based was discovered in July this year). It was Mr Santamaria’s belief that the email to Mr Pucci of 18 July 2014 was a dishonest communication. Mr Santamaria held this view because he thought that an investigation into whether Mr Alexiou had complained to Mr O’Callaghan in October 2011 had not brought to light any material which showed that it had occurred. The consequence was that Mr Santamaria believed it to be obvious that Mr Alexiou had lied when he sent the email to Mr Pucci and the lie was that he had made the complaint to Mr O’Callaghan in October 2011.

19    Mr Alexiou has launched an attack upon that conclusion. At this stage, the full nature of the attack is visible only in outline but it appears at least to include these elements:

(a)    Mr Alexiou’s complaint to Mr O’Callaghan was oral so it is not surprising that no documentary trace of it was ever found;

(b)    Mr Pucci (and those also working on ascertaining the truth or otherwise of Mr Alexiou’s email to Mr Pucci of 18 July 2014) had not approached Mr O’Callaghan to ask him about the matter; and

(c)    The same people had also not asked Mr Alexiou why it was that they had been unable to find any record of the complaint in the bank’s records.

20    The last proposition may perhaps have overtones of a denial of procedural fairness whilst proposition (b) may chip away at the reasonableness of the investigative steps which were taken (although I express no view one way or the other).

21    It is not necessary (and not appropriate) to seek to understand where any of this may lead. The point, instead, is that it opens up the possibility that the investigation into the contents of the 18 July 2014 email was not as thorough as Mr Santamaria had assumed. If so, this may mean that one potential narrative in this complex affair is that whilst Mr Santamaria believed that Mr‍ Alexiou had lied, in this belief he was mistaken.

22    If that turns out to be the case then the following could be the case:

(a)    The conversation between Mr O’Callaghan and Mr Alexiou in October 2011 took place as alleged by Mr Alexiou; and

(b)    The email to Mr Pucci of 18 July 2014 did not involve a lie by Mr Alexiou.

23    In addition to those two matters, it is convenient now to assume to be correct the following matters:

(a)    Both (a) and (b) constitute disclosures for the purposes of the relevant Corporations Act or Banking Act provisions and a complaint for the purposes of the relevant FW Act provisions; and

(b)    Mr Santamaria’s view that Mr Alexiou had no future with ANZ was part of the reason that Mr Géczy stood Mr Alexiou down.

24    In this situation, which requires Mr Alexiou to have prevailed on all four of these issues, a question arises as to whether he was stood down either because of the October 2011 Complaint or because of the 18 July 2014 Complaint. For example, it seems difficult to see that, on this hypothesis, Mr Géczy stood down Mr Alexiou because of the October 2011 Complaint to Mr O’Callaghan. Mr Santamaria’s view (mistaken on these assumptions) was that no such complaint had ever been made. It is difficult to see how in that circumstance Mr Géczy (through the influence of Mr Santamaria) could have stood Mr Alexiou down because of something which was not believed to have happened.

25    In the case of the email of 18 July 2014, a somewhat different outcome may transpire. On the assumptions which have been made to get to this point, the complaint to Mr O’Callaghan had occurred and Mr Alexiou’s email of 18 July 2014 was factually correct. Mr Santamaria erroneously thought that the email involved a deception. As a result of that incorrect view, he also believed that Mr Alexiou did not have a future with ANZ.

26    Mr Withers submitted that in such a set of circumstances it was possible to say that Mr Alexiou had been stood down because of the 18 July 2014 email. This is certainly true if a but for approach to the issue of causation is taken. Had Mr Alexiou not sent the 18 July 2014 email, then it would appear that Mr Santamaria would not have formed the view that he was transparently dishonest.

27    A ruling on an objection is not the place to determine whether the causal requirements of the relevant provisions of the Corporations Act, Banking Act and FW Act can be accurately summarised through a but for test for causation. However, I am satisfied in terms of a relevance analysis, that it is possible on these assumptions that Mr Alexiou was stood down because he sent the email of 18 July 2014 and that his claims under the Corporations Act, Banking Act and FW Act on this basis are viable.

28    With that background, it is useful then to turn to the objection which has been made. Ms‍ Morgan SC, for ANZ, accepted that Mr Santamaria could be asked questions whose end was the determination of who the actual decision makers were. Thus, it was ultimately not in issue that Mr Santamaria could be asked questions tending to show that he may have had some influence over Mr Géczy’s ultimate decision to stand down Mr Alexiou.

29    The objection itself had three limbs. The first limb was that the question asked of Mr Santamaria invited him to speculate. In terms of the actual question posed, I do not agree that the question invites speculation. Ms Morgan developed, however, a second and more general form of the objection. The objection was to questions which sought to join together the proposition that Mr Santamaria had shared with other people at ANZ the fact that he did not believe Mr Alexiou and that those decision makers had then taken this into account when making decisions such as, for example, Mr Géczy’s decision to stand down Mr Alexiou.

30    The objection as it was ultimately formulated was that such a case was not pleaded. However, that form of the objection sits uncomfortably with ANZ’s acceptance that Mr Alexiou is entitled to interrogate Mr Santamaria as to the actual identity of the decision makers. Further, in my view, this initial concession accurately reflects the pleadings. As I have explained above, it is open on the pleadings to seek to demonstrate that Mr Géczy was not the sole decision maker in relation to the decision to stand down Mr Alexiou.

31    Thirdly, Ms Morgan submitted that a false complaint could not be protected by the relevant provisions of the Corporations Act, Banking Act and FW Act. That may well be the case, however, Mr Alexiou’s present submission does not turn on a complaint which is false but rather a complaint which is true but believed by Mr Santamaria to have been false. On the assumptions necessary to arrive at this part of the case, the complaint to Mr O’Callaghan in October 2011 in fact occurred and the email of 18 July 2014 did not peddle a falsehood in asserting this to be so. That Mr Santamaria believed it was transparently dishonest does not alter the analysis.

32    ANZ accepted that Mr Santamaria could be challenged that the reason Mr Alexiou was stood down was because he made the two complaints. But it submitted that there was no case pleaded that he had been stood down because the email of 18 July 2014 was false. This is true but as I have endeavoured to explain, this is not Mr Alexiou’s case.

33    It was for these reasons that I allowed the question.

Associate:

Dated:    27 October 2025