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Amcor Ltd v Barnes

Amcor Ltd v Barnes

Case [2011] VSC 341 26 July 2011

Admissibility of Evidence

Legal Privilege

Jurisdiction

Discovery & Disclosure

Civil Litigation & Procedure

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
PRACTICE COURT
S CI 2007 08181

AMCOR LIMITED (ACN 000 017 372) AND OTHERS	Plaintiffs
v
TREVOR MARK BARNES AND OTHERS	Defendants

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JUDGE:	KYROU J
WHERE HELD:	Melbourne
DATE OF HEARING:	18 and 22 July 2011
DATE OF JUDGMENT:	26 July 2011
CASE MAY BE CITED AS:	Amcor Ltd v Barnes
MEDIUM NEUTRAL CITATION:	[2011] VSC 341	Revised: 2 September 2011

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EVIDENCE – Client legal privilege – Loss of privilege by the commission of a fraud, an offence or an act that renders a person liable to a civil penalty – Meaning of ‘fraud’ – Whether the client must be knowingly involved in the fraud, offence or act – Meaning of ‘in furtherance of the commission of a fraud … offence … or act’ – Whether the fraud, offence or act must be consummated – Whether the commission of the fraud, offence or act must be a fact in issue – Evidence Act 2008, ss 125, 131A.

PRACTICE AND PROCEDURE – Inspection by Judge of disputed documents – Evidence Act 2008, s 133.

PRACTICE AND PROCEDURE – Jurisdiction of a Judge to hear an appeal from an order of an Associate Judge on a question referred to the Associate Judge by another Judge during the trial of a proceeding – Supreme Court (General Civil Procedure) Rules 2005 (Vic), rr 77.02(1), 77.07(1).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr J D Elliott SC with Ms L H Kirwan	Corrs Chambers Westgarth
For the Second to Fourth Defendants	Mr D G Collins SC with Mr S J Maiden	Mills Oakley Lawyers Pty Ltd
No appearance for the First, Fifth, Sixth or Seventh Defendants

TABLE OF CONTENTS

Introduction and summary........................................................................................................ 1

Threshold jurisdictional issue.................................................................................................. 2

Overview of this proceeding and the related Hodgson proceeding..................................... 5

Previous rulings on privilege issues........................................................................................ 7

Relevant provisions of the Evidence Act................................................................................ 10

Legal principles relevant to s 125 of the Evidence Act......................................................... 12

Meaning of ‘fraud’............................................................................................................... 12
Whether the client must be knowingly involved in the fraud, offence or act.................. 14
Meaning of ‘in furtherance of the commission of a fraud … offence … or act’............... 16
Whether the fraud, offence or act must be consummated................................................ 18
Whether the commission of the fraud, offence or act must be a fact in issue.................. 18

Inspection of the Documents in Dispute............................................................................... 19

What is known independently of the Documents in Dispute............................................ 20

Disputed Quadpak Documents.............................................................................................. 28

Broad outline of the contents of the Disputed Quadpak Documents............................... 28
Decision in relation to the Disputed Quadpak Documents.............................................. 32

Disputed Restructure Documents.......................................................................................... 33

Broad outline of the contents of the Disputed Restructure Documents........................... 33
Decision in relation to the Disputed Restructure Documents........................................... 34

Disputed Service Agreement Documents............................................................................. 37

Proposed order.......................................................................................................................... 37

APPENDIX................................................................................................................................ 38

HIS HONOUR:

Introduction and summary

This is an appeal by the plaintiffs from an order made by Randall AsJ on 21 June 2011 (‘order of Randall AsJ’), which upheld…

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 Ltd v Barnes [2011] VSC 341
Case: [2011] VSC 341
Decision Date: 26 July 2011

CaseChat Overview and Summary

Amcor Ltd sought to overturn an order made by an Associate Judge in the County Court of Victoria that certain documents held by Amcor were not subject to legal professional privilege. Amcor argued that the documents had lost their privilege because they were created in furtherance of the commission of a fraud, an offence, or an act that rendered a person liable to a civil penalty. The court had to determine whether the client must be knowingly involved in the fraud, offence, or act, whether the fraud, offence, or act must be consummated, and whether the commission of the fraud, offence, or act must be a fact in issue.

The court held that for a document to lose its privilege, the client must be knowingly involved in the fraud, offence, or act. The court found that the client must have intended to commit the fraud, offence, or act, and the act must have been committed in furtherance of that intention. The court also held that the fraud, offence, or act must be consummated, and the commission of the fraud, offence, or act must be a fact in issue. The court found that the documents were created in furtherance of the commission of a fraud, an offence, or an act that rendered a person liable to a civil penalty, and therefore lost their privilege.

The court also held that it had jurisdiction to hear an appeal from an order of an Associate Judge on a question referred to the Associate Judge by another Judge during the trial of a proceeding. The court held that the Supreme Court (General Civil Procedure) Rules 2005 (Vic), rr 77.02(1), 77.07(1) allowed for such an appeal. The court also held that it had the power to inspect disputed documents under the Evidence Act 2008, s 133.

The court dismissed Amcor’s appeal and upheld the order of the Associate Judge that the documents were not subject to legal professional privilege. The court held that the documents were created in furtherance of the commission of a fraud, an offence, or an act that rendered a person liable to a civil penalty, and therefore lost their privilege. The court also held that it had jurisdiction to hear the appeal and the power to inspect the disputed documents.

Orders