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Alphington Developments Pty Ltd v Amcor Limited (No 2)

Alphington Developments Pty Ltd v Amcor Limited (No 2)

Case [2018] VSC 293 1 June 2018

Appeal

Admissibility of Evidence

Legal Privilege

Civil Litigation & Procedure

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMERCIAL COURT

S ECI 2017 00145

ALPHINGTON DEVELOPMENTS PTY LTD (ACN 164 529 864)	Appellant/Cross-Respondent
v
AMCOR LIMITED (ACN 000 017 347)	Respondent/Cross-Appellant

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JUDGE:	Connock J
WHERE HELD:	Melbourne
DATE OF HEARING:	16 May 2018
DATE OF JUDGMENT:	1 June 2018
CASE MAY BE CITED AS:	Alphington Developments Pty Ltd v Amcor Limited (No 2)
MEDIUM NEUTRAL CITATION:	[2018] VSC 293

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PRACTICE AND PROCEDURE – Appeal from Associate Justice – Subpoena to produce documents – Objection by party to inspection by other party – Legal professional privilege – Application of ss 117 to 119 of the Evidence Act 2008 (Vic) – Adequacy of reasons – Third party adviser – Common law principles – Operation of s 131A of the Evidence Act 2008 (Vic).

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APPEARANCES:	Counsel	Solicitors
For the Appellant/Cross-Respondent	Mr D Aghion	Kalus Kenny Intelex
For the Respondent/Cross-Appellant	Ms K O’Gorman	Gilbert + Tobin Lawyers

HIS HONOUR:

Introduction

This appeal and cross-appeal relate to claims of legal professional privilege made by the respondent/cross-appellant[1] (Amcor) in respect of more than 2,500 documents (Privilege Claim Documents). The Privilege Claim Documents comprise a substantial portion of several thousand documents produced to the court by Golder Associates Pty Ltd (Golder) in response to a subpoena issued on 27 October 2017 (Subpoena). Amcor objected under r 42A.08(1) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (Rules) to the Privilege Claim Documents being released for inspection by the appellant/cross-respondent[2] (Glenvill) (Amcor Objection).
[1]The defendant in the substantive proceeding.
[2]The plaintiff in the substantive proceeding.

The substantive dispute in this proceeding relates to who is liable to pay the costs of remediating asbestos and other contamination on a large parcel of land comprising the former Amcor Paper Mill site at 626 Heidelberg Road, Alphington (Site). Pursuant to a Contract of Sale dated 28 June 2013 (Contract of Sale), the Site was purchased by Glenvill from Amcor Packaging (Australia) Pty Ltd (Amcor Packaging), then a wholly owned subsidiary of Amcor. By a novation deed dated 15 October 2013 the Contract of Sale was novated so as to substitute Amcor in place of Amcor Packaging and the Contract of Sale was further varied by deeds of variation dated 18 February 2015 and 18 October 2016.

The Contract of Sale included terms addressing the manner in which ‘Contamination’ at the Site that had not been identified (Unidentified Contamination) would be dealt with and paid for as between the parties. The meaning, effect and operation of these terms is central to the substantive dispute between the parties.

Golder became relevantly involved with the Site in 2015 when it was retained by Amcor to provide services relating to the Site after Amcor was notified by Glenvill of the discovery of what was said to be Unidentified Contamination.

For the reasons that follow the appeal is…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Alphington Developments Pty Ltd v Amcor Limited (No 2)

Details

AGLC: Alphington Developments Pty Ltd v Amcor Limited (No 2) [2018] VSC 293
Case: [2018] VSC 293
Decision Date: 1 June 2018

CaseChat Overview and Summary

Alphington Developments Pty Ltd sought leave to appeal against a decision of the County Court, where an Associate Justice had quashed an order for Amcor Limited to produce documents. The appeal was against the refusal to allow Alphington to inspect the documents prior to production and against the quashing of the order itself. The County Court had ruled that the documents in question were protected by legal professional privilege, and that the privilege applied notwithstanding the fact that the advice in question had been provided by a third party.

The main legal issue before the court was whether the County Court had erred in quashing the order for Amcor to produce the documents. Specifically, the court needed to determine whether the objections to inspection and production were properly made, and whether the reasons given by the County Court for quashing the order were adequate. Further, the court had to consider whether the legal professional privilege applied to advice provided by a third party, and whether the operation of section 131A of the Evidence Act 2008 (Vic) was properly applied.

The court held that the objections to inspection and production were properly made, and that the County Court had adequately considered the application of legal professional privilege. The court also found that the privilege applied to advice provided by a third party, as it was advice given in the dominant purpose of giving legal advice. Finally, the court held that section 131A of the Evidence Act 2008 (Vic) had been properly applied by the County Court, and that there was no error in quashing the order for production.

The court dismissed the appeal, upholding the County Court's decision that the documents were protected by legal professional privilege and that the order for production was properly quashed. The court also found that the County Court had adequately considered the objections to inspection and production, and that the reasons given for quashing the order were sufficient.

Orders