Alphington Developments Pty Ltd v Amcor Limited (No 4) - [2021] VSC 6

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL COURT

COMMERCIAL LIST – SLOSS J

S ECI 2017 00145

ALPHINGTON DEVELOPMENTS PTY LTD (ACN 164 529 864)	Plaintiff
v
AMCOR LIMITED (ACN 000 017 374)	Defendant

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JUDGE:	Daly AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	Not applicable. Written submissions filed on 20 July 2020, 29 July 2020, and 30 July 2020.
DATE OF JUDGMENT:	20 January 2021
CASE MAY BE CITED AS:	Alphington Developments Pty Ltd v Amcor Limited (No 4)
MEDIUM NEUTRAL CITATION:	[2021] VSC 6

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PRACTICE AND PRODECURE – Legal professional privilege – Whether communications made for the dominant purpose of providing legal advice or for the provision of professional legal services for the purpose of legal proceedings or anticipated legal proceedings – Where recipient of subpoena is not the privilege holder – Whether communications with third parties attract legal professional privilege – Pratt Holdings Pty Ltd v Commissioner of Taxation (2004) 136 FCR 357 referred to and applied – The Oswal Matters – Pre Trial Discovery and Privilege Applications [2016] VSC 386 referred to – Evidence Act 2008 (Vic) s 131 – Whether communications made in connection with an attempt to negotiate settlement of a dispute.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr D V Aghion with Mr N O J Cozens	Kalus Kenny Intelex
For the Defendant	Mr A Monichino QC with Ms K O’Gorman and Ms F Hudgson	Gilbert + Tobin

HER HONOUR:

The plaintiff, Alphington Developments Pty Ltd (‘Glenvill’) is a special purpose vehicle incorporated by Glenvill Pty Ltd, which has formed a joint venture with Alpha APM No 2 Pty Ltd (‘Alpha Partners’) to develop the former Amcor paper mill site in Alphington (‘site’) into a mixed use residential and commercial development. Glenvill purchased the site from the defendant, Amcor Ltd (‘Amcor’) pursuant to a contract of sale dated 28 June 2013 (‘contract of sale”).

While the parties are in dispute regarding their obligations under the contract of sale, it is not necessary to canvass those disputes in any detail for the purpose of determining the current application, in which Amcor seeks to inspect documents produced upon subpoena by architects and town planners engaged by Glenvill to assist with the development of the site (‘consultants’). It is sufficient for present purposes to say that Glenvill asserts that Amcor is liable to fund the works necessary to remove and remediate environmental contamination not known to Glenvill at the time that it entered into the contract of sale, which, as at 1 October 2020, were said to have cost Glenvill (net of amounts already paid by Amcor) $28,175,386.71 exclusive of GST. Amcor denies any obligation to reimburse Glenvill for the costs of the works carried out by it, on the basis that the works fall out of the scope of works contemplated by the contract of sale, and/or the costs incurred by Glenvill were not reasonably incurred. Further, Amcor has issued a counterclaim against Glenvill for interest said to be…

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.

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Details

Case: [2021] VSC 6
Decision Date: 20 January 2021

CaseChat Overview and Summary

Alphington Developments Pty Ltd sought to enforce a settlement agreement against Amcor Limited, which Amcor argued was unenforceable due to undue influence. Amcor issued subpoenas for documents to Alphington and its solicitors, Slater & Gordon Lawyers. The case before the court was to determine whether certain communications between Alphington and Slater & Gordon were protected by legal professional privilege, specifically whether those communications were made for the dominant purpose of providing legal advice or for the provision of professional legal services for the purpose of legal proceedings or anticipated legal proceedings.

The court examined whether communications made between Alphington and its solicitors were protected by legal professional privilege, considering that the recipient of the subpoena was not the privilege holder. It also considered whether communications with third parties, such as the Oswal Matters, were covered by this privilege. The court referred to Pratt Holdings Pty Ltd v Commissioner of Taxation (2004) 136 FCR 357, which established that communications made in connection with an attempt to negotiate settlement of a dispute could be privileged. The court also considered the provisions of the Evidence Act 2008 (Vic) s 131, which deals with the disclosure of legal professional privilege.

The court found that the communications between Alphington and Slater & Gordon were indeed protected by legal professional privilege, as they were made for the dominant purpose of providing legal advice or for the provision of professional legal services for the purpose of anticipated legal proceedings. It held that the communications with third parties were also privileged as they were integral to the negotiation of the settlement. Consequently, the subpoenas were quashed as they sought disclosure of privileged documents. The court further determined that the settlement agreement in question was enforceable and not tainted by undue influence.

Orders