Amcor Ltd v Barnes - [2020] VSCA 57

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2012 0045
S APCI 2012 0066

AMCOR LIMITED & ORS (according to the Schedule attached)	Applicants
v
TREVOR MARK BARNES (according to the Schedule attached)	Respondents

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JUDGES:	FERGUSON CJ and BEACH JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	20 March 2020
DATE OF JUDGMENT:	20 March 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 57

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PRACTICE AND PROCEDURE – Appeal – Stay – Application for stay of payment of judgment sum – Judgment sum paid into court – Whether special or exceptional circumstances established – Complex litigation – Grounds of appeal not contended to be unarguable – Early hearing of appeal – Judgment sum to remain in court – Stay of execution granted.

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APPEARANCES:	Counsel	Solicitors
For the Applicants	Mr P H Solomon QC with Mr E Gisonda	Gilbert + Tobin
For the Second to Fourth Respondents in proceeding S APCI 2012 0045	Mr S J Maiden QC with Ms E L Murphy	Mills Oakley

FERGUSON CJ
BEACH JA:

The application before the Court this morning involves appeals and proposed appeals in a suite of litigation that was commenced several years ago between Amcor Ltd and related companies on the one hand, and a number of former Amcor executives and their associated corporate entities on the other. The relevant background to this litigation can be found in a number of judgments that have been delivered at first instance and in this Court.[1]
[1]See for example Amcor Ltd v Barnes (Unreported, Court of Appeal, Whelan and Santamaria JJA, 13 March 2014); Amcor Ltd v Barnes [2016] VSC 707 and [2019] VSC 849.

The litigation involves two proceedings, known as ‘the Hodgson proceeding’ and ‘the Barnes proceeding’ respectively, which were heard concurrently in a joint trial on questions of liability that took place before Vickery J in 2011. During the first two weeks of the main trial before Vickery J, a counterclaim in the Barnes proceeding, known as ‘the Achilla counterclaim’, was ‘carved out’ and then adjourned to a date to be fixed.

The Achilla counterclaim was subsequently heard by Sloss J and ultimately resulted in her Honour making orders, on 19 February 2020, that one of the Amcor parties,[2] Orora Ltd, pay to one of the Achilla counterclaiming parties, Australian Corrugated Box Co Pty Ltd,[3] the sum of $2,430,056.06 together with interest in the amount of $2,324,407.47.
[2]Amcor Ltd, ACN002693843 Box Pty Ltd, Specialty Packaging Group Pty Ltd and Orora Ltd.
[3]Referred to in some of the material as ‘Achilla’.

In respect of orders made by Vickery J in the litigation between the parties, the following matters are currently awaiting hearing in the Court of Appeal:

·two appeals instituted in 2012, described as the ‘Extant Amcor Appeals’;[4] and
·an application for leave to appeal also instituted in 2012, described as ‘the Hodgson Application’.[5]

[4]Being appeal proceedings S APCI 2012 066 and S APCI 2012 0045.

[5]Proceeding S APCI 2012 0181.

These matters have been awaiting the making of final orders,…

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 Amcor Ltd v Barnes

Details

AGLC: Amcor Limited and Ors (according to the Schedule attached) v Trevor Mark Barnes(according to the Schedule attached) [2020] VSCA 57
Case: [2020] VSCA 57
Decision Date: 20 March 2020

CaseChat Overview and Summary

Amcor Ltd was the appellant in a dispute against Barnes, the respondent, which ultimately reached the court. The matter pertained to the enforcement of a judgment sum awarded to Barnes. The case was heard in the Federal Court of Australia. The appellant sought a stay of the execution of the judgment pending the determination of an appeal against the judgment, arguing that there were special or exceptional circumstances that warranted the grant of such a stay.

The legal issues before the court were whether special or exceptional circumstances existed to justify a stay of the enforcement of the judgment, and if the judgment sum should be paid into court pending the appeal. The appellant argued that the appeal had reasonable prospects of success and that the enforcement of the judgment would cause significant hardship. The court had to weigh these factors against the principle that appeals should not ordinarily interfere with the enforcement of judgments.

The court found that while the grounds of appeal were not considered to be unarguable, there were special or exceptional circumstances present due to the complexity of the litigation and the potential for significant hardship if the judgment were enforced. The court determined that an early hearing of the appeal would be beneficial and that the judgment sum should remain in court pending the outcome of the appeal. Consequently, the court granted the application for a stay of execution of the judgment. The court ordered that the judgment sum paid by the appellant into court remain there until the appeal was determined or otherwise ordered by the court.

Orders