| 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…
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- AGLC
- Amcor Ltd v Barnes [2011] VSC 341
- Case
- [2011] VSC 341
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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