Amcor Ltd v Barnes (Costs Ruling)
[2020] VSC 585
•11 September 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
S CI 2007 8181
| AMCOR LIMITED (ACN 000 017 372) & ORS (ACCORDING TO THE SCHEDULE ATTACHED) | Plaintiffs |
| v | |
| TREVOR MARK BARNES & ORS (ACCORDING TO THE SCHEDULE ATTACHED) | Defendants |
(BY ORIGINAL PROCEEDING)
| AUSTRALIAN CORRUGATED BOX CO PTY LTD (FORMERLY ACHILLA PTY LTD) (ACN 104 489 581) & ANOR (ACCORDING TO THE SCHEDULE ATTACHED) | Plaintiffs by Counterclaim |
| v | |
| ACN002693843 BOX PTY LTD (ACN 002 693 843) & ANOR (ACCORDING TO THE SCHEDULE ATTACHED) | Defendants by Counterclaim |
(BY COUNTERCLAIM)
| ORORA LIMITED (FORMERLY AMCOR PACKAGING (AUSTRALIA) PTY LTD) (ACN 004 275 165) | Cross-Claimant |
| v | |
| AUSTRALIAN CORRUGATED BOX CO PTY LTD (FORMERLY ACHILLA PTY LTD) (ACN 104 489 581) & ORS (ACCORDING TO THE SCHEDULE ATTACHED) | Defendants to Cross-Claim |
(BY CROSS-CLAIM)
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JUDGE: | SLOSS J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 6 May 2020 |
DATE OF RULING: | 11 September 2020 |
CASE MAY BE CITED AS: | Amcor Ltd & Ors v Barnes & Ors (Costs Ruling) |
MEDIUM NEUTRAL CITATION: | [2020] VSC 585 |
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PRACTICE AND PROCEDURE – Costs – Court’s discretion as to costs – Where counterclaim and cross-claim heard separately from trial of the main proceeding – Where Calderbank offer was made by letter in advance of counterclaim being filed – Where Calderbank offer lapsed by effluxion of time due to non- acceptance – Whether costs of counterclaim and cross-claim should be awarded on an indemnity basis – Whether Calderbank offer was unreasonably rejected – Not unreasonable for defendants not to accept offer– Lack of clarity and detail in Calderbank offer – No special costs order made.
PRACTICE AND PROCEDURE – Costs – Court’s discretion as to costs – Where plaintiffs by counterclaim successful on some (but not all) causes of action pursued at trial – Where defendants by counterclaim sought apportionment of costs on counterclaim to reflect mixed success – Whether successful plaintiffs’ costs on counterclaim should be apportioned or discounted to reflect issues on which they failed – Where single order would more readily facilitate taxation than would approaching costs by issues – Single order made apportioning plaintiffs’ costs on counterclaim – No dispute as to costs to be ordered on cross-claim.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs by Counterclaim/Defendants to Cross-Claim | Mr S J Maiden QC and Ms E L Murphy | Mills Oakley |
| For the Defendants by Counterclaim/Cross-Claimant | Ms C M McCudden | Gilbert + Tobin |
TABLE OF CONTENTS
Background......................................................................................................................................... 1
Reasons for decision delivered on 28 November 2016............................................................ 1
Ruling No 1.................................................................................................................................... 3
Ruling No 2.................................................................................................................................... 4
Dispute regarding the ‘Amcor Displays jobs’................................................................. 4
The Mines Report was delivered on 12 November 2008............................................... 5
Orders made on 7 December 2018.................................................................................... 5
Ruling No 3.................................................................................................................................... 6
Hearing as to final orders (save as to costs).................................................................................. 9
Summary of conclusions reached as to final orders (save as to costs)................................... 10
Damages for APA’s overcharging............................................................................................ 10
Damages for lost OME sales...................................................................................................... 10
Interest on the damages awarded to Achilla.......................................................................... 10
Period for which interest is to be awarded.................................................................... 11
The relevant rate of interest............................................................................................. 11
Final orders were made (save as to costs)............................................................................... 11
The Court’s discretion as to costs – general principles............................................................. 12
Summary of the Holihan parties’ submissions as to costs...................................................... 15
The Holihan parties seek a ‘special’ costs order..................................................................... 15
The Holihan parties’ Calderbank offer........................................................................... 15
Summary of the Amcor parties’ submissions as to costs......................................................... 20
What orders as to costs should be made on the Holihan parties’ counterclaim?................ 21
Should there be any apportionment or reduction of the Holihan parties’ costs?............. 21
The Amcor parties’ submissions..................................................................................... 22
The Holihan parties’ response......................................................................................... 27
Consideration and disposition – the Holihan parties’ costs of the counterclaim should be apportioned or discounted and fixed in a single order............................................... 30
Should the Holihan parties be awarded their costs on an indemnity basis?..................... 42
(a)....... the stage of the proceeding at which the offer was received.......................... 44
(b)...... the time allowed to the offeree to consider the offer........................................ 45
(c)....... the extent of the compromise offered................................................................. 45
(d)...... the offeree’s prospects of success, assessed as at the date of the offer.......... 46
(e)....... the clarity with which the terms of the offer were expressed......................... 47
(f)....... whether the offer foreshadowed an application for indemnity costs in the event of the offeree’s rejecting it............................................................................................... 48
Consideration and disposition – no special costs order should be made........................... 50
Orders made by Osborn J on 11 December 2007 – does the existence of the undertaking given by the Amcor parties on 11 December 2007 bear upon the exercise of the Court’s discretion and the formulation of the appropriate form of order as to costs to be made?............... 52
What orders as to costs should be made on the Amcor parties’ cross-claim?...................... 58
Summary of conclusions................................................................................................................ 58
The Holihan parties’ Calderbank offer....................................................................................... 59
Costs order on the Holihan parties’ counterclaim................................................................. 59
Costs order on the Amcor parties’ cross-claim....................................................................... 59
HER HONOUR:
Background[1]
Reasons for decision delivered on 28 November 2016
[1]Much of this background summary first appeared in Ruling No 3, but it is reproduced here for convenience.
The Court heard the trial of both the Holihan parties’ counterclaim and the Amcor parties’ cross-claim in the ‘Barnes proceeding’ on various dates between 25 May and 15 September 2015, and delivered its reasons for decision on 28 November 2016: Amcor Ltd & Ors v Barnes & Ors [2016] VSC 707 (‘Reasons’).
Relevantly, for present purposes, the Court found that when the reciprocal purchase and supply obligations established by clause 12 of the Second Sale Agreement are viewed in the context of the whole agreement and the surrounding circumstances, the obligations imposed on the relevant Amcor parties (being ACN002693843 Box Pty Ltd (‘ACB Co Vendor’) prior to entry into the Deed of Accession and Amcor Packaging (Australia) Pty Ltd (‘APA’) following entry into the Deed of Accession) under clause 12.2 to obtain ‘all its OME supplies’ from the first plaintiff by counterclaim (‘Achilla’) (one of the Holihan parties) were essentially as follows:[2]
[2]Reasons, at [1703].
. . .
(a)On its proper construction, the purchase obligation imposed on ACB Co Vendor under clause 12.2 is to be construed as an obligation on the part of ACB Co Vendor to continue to provide to Achilla after the sale, effectively all of the same sort of work that the ACB Business had been doing prior to the sale, save in circumstances where the exception was enlivened. That is, notwithstanding the sale, the ACB Business (under new ownership) would effectively continue on the same basis as before (i.e., when conducted by ACB Co Vendor). Thus, in the ordinary course, customers’ work that was entered in the PICK system with a master denoting the ACB Business would be routed to Achilla notwithstanding the change in ownership. Similarly, in the case of new jobs that involved work of the kind that was performed by the ACB Business prior to the sale, in the ordinary course, a quote would be generated using the PICK system, and work would be routed to Achilla unless the exception was enlivened. In this way, Achilla would continue to perform the work that historically had been undertaken by the ACB Business, and essentially on the same basis as before, including that its supplies of raw material would continue to be sourced from the AFP businesses conducted at the Smithfield and Revesby sites in New South Wales.
(b)As to whether Amcor Displays’ work was captured within the clause 12.2 purchase obligation, on the evidence, it seems clear that while the ACB Business was doing some work for Amcor Displays prior to the sale, it was not doing all or even a significant proportion of the Amcor Displays’ work. The evidence suggests that a small component of the Amcor Displays’ work was being performed by the ACB Business notwithstanding the arrangement then in place with ACE Print, and that it was being recorded separately from the other work performed for the businesses conducted by AFP at its Smithfield and Revesby sites. In the period prior to the Deed of Accession being entered into, as a general proposition, the Amcor Displays’ work was not encompassed within the scope of clause 12.2. However, given that I have found that on a ‘business as usual’ construction of the clause 12.2 obligation, Achilla would likely have received some small amount of Amcor Displays’ work of the kind that the ACB Business had been doing for it prior to the sale (save for circumstances where the relevant exception was enlivened), clause 12.2 entitled Achilla or the ACB Business to continue receive a small amount of the same sort of Amcor Displays’ work.
(c)In the period following execution of the Deed of Accession, the scope of clause 12.2 remained unchanged from the position described above. That is, the substitution of APA as ‘Vendor’ in place of ACB Co Vendor did not relevantly enlarge the scope of the clause 12.2 purchase obligation.
Against that background, the general position as found by the Court was that Achilla is entitled to be compensated by APA for each job that should have been provided to the ACB Business on a ‘business as usual basis’ for the period from 27 September 2005[3] to 31 July 2008 (‘ClaimPeriod ’), save for work that fell within the carve out or exception to that obligation in clause 12.2.[4]
[3]The relevant commencement date for the Claim Period was reached by agreement between the parties following delivery of the Reasons.
[4]The relevant exception or ‘carve out’ is contained in clause 12.2 of the Asset Sale Deed dated 2 June 2003 (described in the Reasons as the ‘Second Sale Agreement’) at CB1492. The carve out is expressed in the following terms: ‘other than due to Achilla’s inability to supply consistently and on a basis which is commercial and reasonably acceptable in terms of price, quality and availability’.
Since delivering its Reasons, the Court has conducted a host of directions hearings, heard several contested applications and delivered three separate rulings addressing additional matters raised by the parties in relation to the damages or compensation to be awarded to Achilla. That process has involved the making of a reference to a special referee and the preparation of a report by him, and the giving of further instructions to the accounting experts who gave evidence at the trial for the preparation of several further joint reports by them.
Ruling No 1
On 2 February 2018, the Court delivered a ruling concerning two competing applications before the Court for determination:
(a) the first being the Holihan parties’ application seeking to have the Court refer the matter to a special referee, Mr Ronald Mines, for him to undertake the reference as to whether Achilla is entitled to compensation in relation to each of the ‘Disputed Jobs’; and
(b) the second being the Amcor parties’ application for the Court to make an order recording its answers to each of the questions posed in the statement of issues (6 key issues and 20 specific issues) that were addressed in the Reasons and order that the further hearing or determination of the counterclaim (and cross-claim) be stayed until further order.
The Court determined that the preferable course was to proceed with the reference to the special referee rather than by making orders formally answering the questions raised in the statement of issues (Amcor Ltd & Ors v Barnes & Ors (Ruling No 1)).[5]
[5][2018] VSC 21 (‘Ruling No 1’).
Following the delivery of Ruling No 1, the Court made orders on 6 February 2018 dismissing the Amcor parties’ amended summons and appointing Mr Ronald Mines as special referee pursuant to Order 50 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (‘Rules’). Those orders provided for the reference to be undertaken by Mr Mines in a staged process, essentially because the Holihan parties had identified three additional legal questions that both parties agreed must be determined by the Court before Mr Mines could complete the reference. Mr Mines was also specifically directed not to determine (what was described as) the ‘Amcor Displays Objection’.[6] To that end, in Annexure A to the 6 February 2018 orders, Mr Mines was instructed that:[7]
Where the Claim Documents show that the Amcor Parties rely upon the Amcor Displays Objection for a particular job, your task in considering that job is to determine whether Achilla would have received the Disputed Job on a “business as usual” basis, having regard to any objections made by the Amcor Parties other than the Amcor Displays Objection.
[6]See paragraph 7(a) of Annexure B to the 6 February 2018 orders.
[7]See Annexure A (Letter of Instruction to Special Referee) to the 6 February 2018 orders.
Ruling No 2
On 29 March 2018, the Court delivered a further ruling addressing the three legal questions that had been raised by the Holihan parties for determination by the Court, namely:
(a)Whether the Holihan parties have discharged their burden of proof in respect of jobs for which invoices and purchase orders are missing or illegible.
(b)Whether the Amcor parties are entitled to rely on the carve-out in relation to any work other than ‘repeat order’ work.
(c)Whether the Amcor parties are entitled to raise any issues with respect to ‘partitions’ jobs.
(Amcor Ltd & Ors v Barnes & Ors (Ruling No 2)).[8]
[8][2018] VSC 137 (‘Ruling No 2’).
Dispute regarding the ‘Amcor Displays jobs’
At the end of Ruling No 2, the Court noted that both the Holihan parties and the Amcor parties had informed the Court that, in light of the Court’s finding that on a ‘business as usual’ construction Achilla would likely have continued to receive some small amount of Amcor Displays’ work of the kind that the ACB Business had been doing for it prior to the sale, it was likely the ‘Amcor Displays jobs’ would raise considerations additional to those that apply to the remainder of the jobs. However, as both parties were in general agreement as to the way forward, the Court indicated that if, following consideration of the Special Referee’s report, either party wished to seek to seek leave to re-open, a formal application should be made, supported by appropriate material.
The Mines Report was delivered on 12 November 2008
On 12 November 2018, Mr Mines delivered his report to the Court, comprised of a ‘reference overview’ and a schedule setting out his determination, on a job by job basis, as to whether Achilla is entitled to damages for each job (‘Mines Report’). In his reference overview, Mr Mines outlined the approach he had followed to reach his findings in respect of each disputed invoice, stating:[9]
[9]Mines Report, reference overview dated 2 November 2018, at p 1.
. . .
As directed, I have reviewed these invoices based upon arguments put by the parties in columns I, J and K of the (Revised) Claim Documents.
In all of the above cases, I have applied logic based on my extensive knowledge of the corrugated box industry, as well as knowledge gained within the several industry businesses that I have either been employed by, or have supplied contract work to.
The above logic and knowledge encompasses the type of manufacturing industry/processes available to Achilla, as described in Sections 17e and 18 of [the 6 February 2018 orders] and the evidence of the various suppliers regarding their processes and capabilities.
I was able with a fair degree of accuracy, to determine whether Achilla had the capability to perform specific work but I was unable to determine whether they had the capacity, at any particular time, to perform the work.
I based my assessment on their capability only.
. . .
Following delivery of the Mines Report, both the Holihan parties and the Amcor parties indicated that they were generally content with the way that the Special Referee has gone about performing the tasks that were allocated to him.
Orders made on 7 December 2018
On 7 December 2018, orders were made, by consent, for the parties to file written submissions addressing four topics:
(a) the adoption or otherwise of the Mines Report (or part(s) thereof);
(b) the Amcor Displays Objection;
(c) any application made to re-open and adduce further evidence in relation to Amcor Displays; and
(d) the procedural steps to follow the adoption or otherwise of the Mines Report.
Pursuant to those orders, the Holihan parties and the Amcor parties each filed an outline of submissions, a summons and an affidavit in support. They sought leave to re-open their respective cases, to adduce further evidence relevant to the Amcor Displays Objection and to make submissions.
The matter was listed for hearing on 8 February 2019. On that day, as the time available permitted the Court to hear argument directed to the Amcor Displays issues only, the Court noted that it would be necessary to re-schedule a further hearing to deal with the other two outstanding issues.
Ruling No 3
On 14 June 2019, the Court delivered its reasons for the ruling in relation to the Amcor Displays Objection (Amcor Limited & Ors v Barnes & Ors (Ruling No 3)[10]) and listed the matter for further directions as to the adoption or otherwise of the Mines Report and the further procedural steps required in order to progress the proceeding.
[10][2019] VSC 393 (‘Ruling No 3’).
In Ruling No 3, the Court found, among other things, that in the final year before entry into the Second Sale Agreement, the ACB Business performed OME work for Amcor Displays to the value of $172,097.83.[11]
[11]Ibid, at [179].
In relation to jobs the subject of the Amcor Displays Objection, the Court found, in effect, that Achilla is to be compensated for the ‘business as usual’ Amcor Displays work that it did not receive during the Claim Period. The Court also found that such compensation:[12]
[12]Ibid, at [179]–[182].
(a) is to be measured on the basis that Achilla would have received $172,097.83 (excluding GST) per annum in respect of Amcor Displays Jobs for the Claim Period;
(b) is to be pro-rated for the 2005/06 financial year and the month of July 2008; and
(c) is to take into account the value of Amcor Displays OME work that Achilla did receive during the Claim Period (being $49,423.04 including GST).
A directions hearing was held on 26 June 2019 to consider the form of order to be made following delivery of the ruling. The directions hearing was then adjourned to 28 June 2019 so as to permit the parties to consult and bring forward a minute of proposed consent orders. (In the event that orders could not be made on the papers the directions hearing would proceed on 28 June 2019.)
Following completion of the Special Referee process and delivery of the Mines Report, the parties contested Mr Mines’ findings in respect of a subset of the Disputed Jobs he reviewed. That subset is referred to as ‘Contested Jobs’ in the relevant orders made by the Court. At the directions hearing on 28 June 2019, counsel for the respective parties informed the Court that:
(a) the parties, acting in accordance with their respective obligations under the Civil Procedure Act 2010 (Vic) (‘Civil Procedure Act’), had reached an agreement (referred to in order 2(a) of the orders) so as to avoid incurring further costs relating to the Contested Jobs; and
(b) the agreement was not intended by either party to restrict the bases upon which either party might appeal any orders of this Court (if any appeal is brought).
Accordingly, at the directions hearing on 28 June 2019, the Court made orders by consent for:
(a) ‘Quantification of Achilla’s damages’ and requiring the parties to instruct their respective experts, Mr Greg Meredith in the case of the Holihan Parties and Ms Dawna Wright in the case of the Amcor Parties, with an agreed letter of instruction to prepare a joint report quantifying Achilla’s damages in accordance with paragraph 2 of those orders, the Reasons[13] and Ruling No 3[14]; and
(b) the adoption of the Mines Report (save in so far as the report concerns the jobs the subject of the Amcor Displays Objection and the Contested Jobs listed in Annexure A to the orders, and with some minor variations).
[13]Amcor Ltd & Ors v Barnes & Ors [2016] VSC 707.
[14]Amcor Limited & Ors v Barnes & Ors (Ruling No 3) [2019] VSC 393.
In accordance with further orders made on 30 July 2019, the parties instructed their respective experts with an agreed letter of instruction, and on 22 August 2019 the parties’ respective experts provided a joint expert report prepared in response to the letter of instruction (‘August Report’).
At a directions hearing held on 28 August 2019, the parties and the Court discussed two ‘issues’ contained in the August Report about which further clarification from the parties’ respective experts was required. Accordingly, on 3 September 2019 the parties provided to their respective experts a supplementary joint letter of instructions seeking clarification in relation to the ‘issues’ discussed at the hearing on 28 August 2019 (‘Supplementary Letter of Instruction’). On 18 September 2019 the parties’ respective experts provided a joint expert report prepared by them in response to the Supplementary Letter of Instruction (‘September Report’).
At directions hearings held on 26 September and 3 October 2019, the Holihan Parties raised issues with the September Report. The parties subsequently prepared a further supplementary letter of instruction regarding the quantification of Achilla’s loss, including seeking clarification about the quantification of loss in the calculations accompanying the August and September Reports (‘Further Supplementary Letter of Instruction’). On 23 October 2019, the parties’ respective experts provided a joint expert report (and associated calculations) in response to the further supplementary letter of instruction (October Report). On 30 October 2019 the parties’ respective experts provided a revised version of their October joint expert report (and associated calculations) in order to correct a typographical error.
Hearing as to final orders (save as to costs)
Against that background, on 29 October 2019 the Court made orders listing the proceeding for hearing as to final orders (other than as to costs) on 25 November 2019 and fixing a timetable for the parties to file and serve submissions (including reply submissions) in relation to any outstanding matters (other than costs) including:
(a) the adoption (or otherwise) by the Court of the joint experts’ reports;
(b) quantification of damages payable to Achilla, including any amount by way of interest; and
(c) final orders disposing of the counterclaim and cross-claim.
The Holihan parties[15] and the Amcor parties[16] each filed outlines of submissions and the Holihan parties filed reply submissions. The Amcor parties also filed and served an affidavit of Ms Christiana Maree McCudden (solicitor for the Amcor parties) sworn on 19 November 2019, in order to collate in one place the documents relevant to the Holihan parties’ claim for interest (‘McCudden 19.11.19 affidavit’). On the morning of the hearing, the Holihan parties filed an affidavit of Mr James Crighton John Humphris (solicitor for the Holihan parties) affirmed on 25 November 2019 (‘Humphris 25.11.19 affidavit’) responding to the matters addressed in the McCudden affidavit and matters raised in the Amcor parties’ reply submissions.[17] Following the hearing, a supplementary affidavit of Mr Humphris affirmed on 25 November 2019 (‘Humphris 25.11.19 affidavitsupplementary’) was filed, exhibiting a copy of the orders Vickery J made on 13 March 2015 fixing the counterclaim and cross-claim for trial.
[15]See Holihan parties’ outline of submissions dated 11 November 2019 and Holihan parties’ outline of submissions in reply dated 18 November 2019.
[16]Submissions of the Amcor parties on Final Orders dated 11 November 2019 and Reply submissions of the Amcor parties on Final Orders dated 19 November 2019.
[17]An ‘unsworn’ version of the Humphris 25.11.19 affidavit was provided to the Court and to the Amcor parties on 22 November 2019.
Summary of conclusions reached as to final orders (save as to costs)
On 20 December 2019 the Court delivered its reasons concerning the quantification of Achilla’s damages and Achilla’s claim for interest on the damages award: Amcor Ltd & Ors v Barnes & Ors [No 2].[18]
[18][2019] VSC 849.
In summary, the conclusions reached by the Court were as follows.
Damages for APA’s overcharging
In respect of Achilla’s claim for damages for APA’s overcharging as a result of the breaches of clause 12.1 of the Second Sale Agreement, the Court determined that Achilla should be awarded damages of $232,642.06.
Damages for lost OME sales
In respect of Achilla’s claim for damages for lost OME sales as a result of APA’s breaches of clause 12.2 of the Second Sale Agreement, the Court, doing the best it can with the information before it, determined that the appropriate course is for it to fix the quantum of Achilla’s damages at the sum of $2,197,414, arrived at by adopting the methodology applied by the joint experts in their October 2019 report.
Interest on the damages awarded to Achilla
The Court found that Achilla is entitled to an award of damages totalling the sum of $2,430,056.06, comprised of the overcharging amount of $232,642.06 and a sum of $2,197,414 for the lost OME sales, together with interest thereon pursuant to s 60 of the Supreme Court Act1986 (Vic) (‘Supreme Court Act’). Accordingly, interest should be calculated on the sum of $2,430,056.06.
Period for which interest is to be awarded
In the present case, the Court has found that, good cause to the contrary having been shown, it is appropriate that interest should run on the damages awarded to Achilla from 4 October 2010 (when APA was joined as a defendant and the relevant breaches were pleaded against it) rather than from 3 September 2007 (when the principal proceeding was commenced).
The relevant rate of interest
As to the rate of interest, the Court has determined, in the exercise of its discretion, to award interest on the amount of the damages award at the penalty rate(s) applicable from time to time under s 60(1) of the Supreme Court Act.
Final orders were made (save as to costs)
On 19 February 2020, the Court entered judgment[19] in favour of the relevant Holihan parties on both the counterclaim[20] and the cross-claim.[21] The issue of costs was reserved,[22] the Court having set a timetable for the filing of written submissions and any affidavit material in support by the respective parties.[23]
[19]Due to a clerical error contained in the form of judgment (reference was made to interest payable on the judgment sum as being 'pursuant to section 60 of the Penalty Interest Rates Act 1983 (Vic)' whereas interest is payable pursuant to section 60 of the Supreme Court Act 1986 (Vic)), a corrected version of the judgment was published under the ‘slip rule’ (r 36.07) on 7 May 2020.
[20]Orders 1 and 2 related to Achilla’s claim for breach of clauses 12.1 and 12.2 of the Second Sale Agreement. Orders 4 and 5 related to the release of the charge.
[21]Order 7.
[22]Order 8.
[23]See orders made by consent on 18 February 2020.
To that end, the Holihan parties filed and served their outline of submissions on 6 March 2020[24] together with an affidavit of Mr James Crighton John Humphris sworn on 6 March 2020.[25] The Amcor parties filed their submissions on costs on 8 April 2020[26] which they served that day together with an (unsworn) affidavit of Ms Christiana Maree McCudden.[27] The Holihan parties filed their outline of submissions in reply on 29 April 2020.[28]
[24]Referred to as the ‘Holihan parties’ outline of submissions’.
[25]Referred to as the ‘Humphris 06.03.20 affidavit’. I note that this affidavit is sworn by Mr Humphris on oath whereas his earlier affidavits were affirmed.
[26]Referred to as the ‘Amcor parties’ submissions on costs’.
[27]Referred to as the ‘McCudden 08.04.20 affidavit’. The affidavit was unsworn due to COVID-19 restrictions, but Ms McCudden undertook to swear, file and serve the affidavit as soon as practicable: Transcript 06.05.2020, at p 39 (line 16). The McCudden 08.04.20 affidavit was sworn on 6 May 2020 and filed on 7 May 2020.
[28]Referred to as the ‘Holihan parties’ reply submissions’.
The Court’s discretion as to costs – general principles
Section 24(1) of the Supreme Court Act[29] and s 49(3)(k)[30] and Part 4.5 of the Civil Procedure Act dealing with the Court’s powers as to costs, and rules 63.02, 63.03 and 63.04 of the Rules,[31] provide that the Court has a broad discretion in determining questions of costs. Further, s 65C(1) of the Civil Procedure Act also now permits the Court to make ‘any order as to costs it considers appropriate to further the overarching purpose’ and such order may ‘make different awards of costs in relation to different parts of a proceeding’ or ‘order that parties bear costs as specified proportions of costs’. [32]
[29]Section 24(1) provides:
(1)Unless otherwise expressly provided by this or any other Act or by the Rules, the costs of and incidental to all matters in the Court, including the administration of estates and trusts, is in the discretion of the Court and the Court has full power to determine by whom and to what extent the costs are to be paid.
[30]Section s 49(3)(k) provides:
(3)Without limiting subsection (1) [court may give any direction or make any order it considers appropriate to further the overarching purpose], a court may give any direction or make any order it considers appropriate with respect to—
…
(k)costs, including the proportions in which the parties are to bear any costs;
[31]Rules 63.02, 63.03 and 63.04 relevantly provide as follows:
63.02:
The power and discretion of the Court as to costs under section 24 of the Act shall be exercised subject to and in accordance with this Order.
63.03(1):
The Court may in any proceeding exercise its power and discretion as to costs at any stage of the proceeding or after the conclusion of the proceeding.
63.04(1):
The Court may make an order for costs in relation to a particular question in or a particular part of a proceeding.
63.04(2):
Where the Court makes an order under paragraph (1), the Court shall fix the proportion of the total costs of the proceeding which is attributable to the particular question in or particular part of the proceeding.
[32]Civil Procedure Act, s 65C(2)(a) and (b).
Generally, where a party is successful, costs will follow the event and a successful party will usually obtain all of the costs of the action even though it may have failed in establishing some of the alternative heads of claim. In Oshlack v Richmond River Council, McHugh J conveniently summarised the general position concerning the ‘usual order as to costs’, and the objectives the Court seeks to meet in exercising its discretion as to costs, as follows: [33]
[33](1998) 193 CLR 72 (Oshlack), at 97–98. While McHugh J dissented in the result in Oshlack his Honour’s statement of the relevant principles was not contrary to the reasoning of the majority.
[67]The expression the “usual order as to costs” embodies the important principle that, subject to certain limited exceptions, a successful party in litigation is entitled to an award of costs in its favour. The principle is grounded in reasons of fairness and policy and operates whether the successful party is the plaintiff or the defendant. Costs are not awarded to punish an unsuccessful party. The primary purpose of an award of costs is to indemnify the successful party.[34] If the litigation had not been brought, or defended, by the unsuccessful party the successful party would not have incurred the expense which it did. As between the parties, fairness dictates that the unsuccessful party typically bears the liability for the costs of the unsuccessful litigation.
[34]Latoudis [v Casey] (1990) 170 CLR 534 at 543 per Mason CJ; at 562-563, per Toohey J; at 566-567, per McHugh J; Cachia v Hanes (1994) 179 CLR 403 at 410, per Mason CJ, Brennan, Deane, Dawson and McHugh JJ.
…
[69]The traditional exceptions to the usual order as to costs focus on the conduct of the successful party which disentitles it to the beneficial exercise of the discretion. In Anglo-Cyprian Trade Agencies Ltd v Paphos Wine Industries Ltd,[35] Devlin J formulated the relevant principle as follows:
“No doubt, the ordinary rule is that, where a plaintiff has been successful, he ought not to be deprived of his costs, or, at any rate, made to pay the costs of the other side, unless he has been guilty of some sort of misconduct.”
”Misconduct” in this context means misconduct relating to the litigation,[36] or the circumstances leading up to the litigation[37]. Thus, the court may properly depart from the usual order as to costs when the successful party by its lax conduct effectively invites the litigation[38]; unnecessarily protracts the proceedings[39]; succeeds on a point not argued before a lower court[40]; prosecutes the matter solely for the purpose of increasing the costs recoverable[41]; or obtains relief which the unsuccessful party had already offered in settlement of the dispute.[42]
[35][1951] 1 All ER 873, at 874.
[36]King & Co v Gillard & Co [1905] 2 Ch 7; Donald Campbell & Co Ltd v Pollak [1927] AC 732, at 812.
[37]Bostock v Ramsey Urban District Council [1900] 2 QB 616.
[38]Jones v McKie [1964] 1 WLR 960; [1964] 2 All ER 842; Bostock [1900] 2 QB 616, at 622, 625, 627.
[39]Forbes v Samuel [1913] 3 KB 706.
[40]Armstrong v Boulton [1990] VR 215, at 223.
[41]Hobbs v Marlowe [1978] AC 16.
[42]Jenkins v Hope [1896] 1 Ch 278.
More recently, in Northern Territory v Sangare,[43] the High Court described the discretion as to costs in the following terms:[44]
[43](2019) 265 CLR 164 (Sangare).
[44]Ibid, at 172–173, [24 –-[25] (Kiefel CJ, Bell, Gageler, Keane and Nettle JJ).
The discretion as to costs
[24]It is well established that the power to award costs is a discretionary power, but that it is a power that must be exercised judicially, by reference only to considerations relevant to its exercise and upon facts connected with or leading up to the litigation[45]. While the width of the discretion "cannot be narrowed by a legal rule devised by the court to control its exercise"[46], the formulation of principles according to which the discretion should be exercised does not "constitute a fetter upon the discretion not intended by the legislature"[47]. Rather, the formulation of principles to guide the exercise of the discretion avoids arbitrariness and serves the need for consistency that is an essential aspect of the exercise of judicial power[48].
[25]A guiding principle by reference to which the discretion is to be exercised – indeed, "one of the most, if not the most, important" principle – is that the successful party is generally entitled to his or her costs by way of indemnity against the expense of litigation that should not, in justice, have been visited upon that party[49]. The application of that principle may be modified or displaced where there is conduct on the part of the successful party in relation to the conduct of the litigation that would justify a different outcome. . . .
[45]Donald Campbell & Co v Pollak [1927] AC 732 at 811–812; Latoudis v Casey (1990) 170 CLR 534 at 539–540, 557, 561–562, 569; Oshlack v Richmond River Council (1998) 193 CLR 72 at 96 [65], 120–121 [134].
[46]Norbis v Norbis (1986) 161 CLR 513 at 537; [1986] HCA 17. See also at 533.
[47]Latoudis v Casey (1990) 170 CLR 534 at 541–542, see also at 558‑559; Oshlack v Richmond River Council (1998) 193 CLR 72 at 96 [65], 121 [134].
[48]Norbis v Norbis (1986) 161 CLR 513 at 519; Latoudis v Casey (1990) 170 CLR 534 at 541–542, see also at 558; Oshlack v Richmond River Council (1998) 193 CLR 72 at 96 [65], 121 [134].
[49]Smeaton Hanscomb & Co Ltd v Sassoon I Setty, Son & Co [No 2] [1953] 1 WLR 1481 at 1484; [1953] 2 All ER 1588 at 1590. See also Harold v Smith (1860) 5 H & N 381 at 385 [157 ER 1229 at 1231]; Oshlack v Richmond River Council (1998) 193 CLR 72 at 96‑97 [66] –[67], see also at 86 [35], 120–121 [134].
Accordingly, in determining how to exercise its discretion as to costs, it is permissible for the Court to have regard to the conduct of the respective parties in the litigation. Further, the Court is permitted, in the exercise of its discretion, to award costs by reference to issues in the proceeding or to order that the successful party recover only a proportion of its costs.
Summary of the Holihan parties’ submissions as to costs
The Holihan parties seek a ‘special’ costs order
The Holihan parties seek an order that the costs of both their counterclaim and the Amcor parties’ cross-claim be awarded on an indemnity basis, as follows:[50]
(a)ACB Co Vendor and APA pay Achilla’s and ACB Co Purchaser’s costs of and incidental to their counterclaim, including reserved costs, on an indemnity basis.
(b)APA pay the Holihan parties’ costs of and incidental to the cross-claim, including reserved costs, on an indemnity basis.
[50]Holihan parties’ outline of submissions, at [27].
The Holihan parties’ Calderbank offer
The Holihan parties’ claim for indemnity costs is founded upon a settlement offer made by them to the (then) plaintiffs, Amcor Ltd and ACB Co Vendor in the ‘Barnes Proceeding’ (S CI 2007 8181).[51] The settlement offer was not made as a formal offer of settlement under the Rules, but rather was made by letter dated 17 December 2007 from their solicitors, Mills Oakley Lawyers, to the (then) solicitors for the Amcor parties, Corrs Chambers Westgarth. The letter was headed ‘Without Prejudice Save as to Costs’ and referenced ‘Holihan and Ors ats Amcor Limited and Anor Supreme Court 942 of 2004’,[52] and the settlement offer set out therein was expressed to be made ‘in accordance with the principles outlined in Calderbank v Calderbank[53]’.[54]
[51]Humphris 06.03.20 affidavit, at [12].
[52]The reference to Supreme Court proceeding ‘942 of 2004’ is clearly an error. Senior Counsel for the Holihan parties informed the Court that proceeding 9240 of 2004 is the related Hodgson proceeding, and the Holihan parties ‘were not involved in that proceeding at all’: Transcript 06.05.20, at p 13 (Mr Maiden QC).
[53][1973] 3 All ER 333.
[54]Humphris 06.03.20 affidavit, exhibit JCH-1 at p 38.
The letter containing the Calderbank offer was sent to the (then) solicitors for the Amcor parties shortly after the Holihan parties filed their defences in the Barnes proceeding (on 26 November 2007). Relevantly, the Calderbank offer was framed in the following terms:[55]
[55]Ibid at pp 37–38. See Humphris 06.03.20 affidavit, paginated bundle of documents marked JCH-1 at pp 37–38.
It is the defendants’ position that there is no legal basis to the claim bought [sic.] against them.
The defendants deny that they have breached the duties as alleged, and say that the proceeding commenced against them is misconceived.
In addition to the Defence, Mr Holihan offered and met with Ms McPherson from Amcor and Janet Whiting, her lawyer, on 23 November 2007, following an unsuccessful mediation between the parties. In this private meeting, Mr Holihan provided various documents (all of which were already in the possession of Amcor) and provided full and frank answers to a range of questions posed to him by Ms McPherson and Ms Whiting, demonstrating that the purchase of the corrugated box business was an arms’ length transaction for proper value. . . .
. . .
Notwithstanding the information provided, Amcor has made it clear that it intends to proceed with litigation against my clients and will not be satisfied with anything less than recovery of the corrugated box business.
In light of the above and with my clients wishing to avoid the expense and inconvenience of litigation, my clients propose to settle all matters between Amcor and themselves, including the proceedings, on the following basis:
1.The proceedings stand dismissed as between our respective clients;
2.Parties enter into mutual releases whereby they release each other in respect of all matters arising out of and in respect to the proceedings; and
3.The parties bear their own costs of and incidental to the proceedings.
This offer remains open for acceptance until 12 January 2008, when it lapses. In the event that the offer is rejected, my client will rely upon this offer made in accordance with the principles outlined in Calderbank v Calderbank, and look to recover all of their costs on the indemnity basis from the date of this offer. In this regard, your attention is drawn to the judgment of His Honour Justice Osborn made on 11 December 2007 and the undertaking as to damages provided by Amcor.
Shortly prior to the date when the Calderbank offer was made, the solicitor for the Holihan parties informed legal representatives of the other parties that ‘[their] clients wish to file a Counterclaim in the proceeding’,[56] and that an order to that effect had been included in the minute of proposed orders to be sought at the directions hearing the following day. The orders made by Osborn J by consent at the directions hearing held on 14 December 2007 included an order that ‘[a]ny counterclaim … be filed and served by 4.00pm on 21 January 2008’.[57]
[56]Humphris 06.03.20 affidavit, at [10] and paginated bundle of documents marked JCH-1 at p 27; see also minute of proposed consent orders at pp 28–30.
[57]Humphris 06.03.20 affidavit at [11] and paginated bundle of documents marked JCH-1 at pp 31-32.
It is not controversial that the Calderbank offer was not accepted on or before 12 January 2008 and it lapsed by effluxion of time.[58] On 21 January 2008, Achilla (one of the Holihan parties) filed its counterclaim naming ACB Co Vendor (which at that time was the second plaintiff in the Barnes proceeding) as the sole defendant by counterclaim.[59] The primary claim pleaded at that point was a claim for damages alleging that ACB Co Vendor had not purchased or procured the supply of all its OME supplies from Achilla during the period and had purchased or procured supplies of products from others, by reason whereof it had suffered loss and damage.[60] There was also a claim that ACB Co Vendor had failed to verify and confirm the basis of its D & D costing and to ensure that the costing applied to products supplied by it to Achilla pursuant to the Second Sale Agreement ‘is a true and accurate reflection of its D & D costs.’[61]
[58]Transcript 06.05.2020, at p 41 (lines 11–12) (Ms McCudden).
[59]McCudden 19.11.19 affidavit, exhibit CMM-1.
[60]See McCudden 19.11.19 affidavit, exhibit CMM-1, at [6], [9].
[61]Ibid, at [8].
In December 2009, Amcor applied to amend its pleadings in (inter alia) the Barnes proceeding by seeking leave to join another Amcor entity, APA,[62] as a plaintiff and to plead the Deed of Accession dated 21 March 2005.[63] On 19 May 2010, Emerton J delivered her reasons in relation to Amcor’s application, and granted leave for it to join APA and to amend.[64] On 2 June 2010, the Amcor parties filed a further amended statement of claim in the Barnes proceeding, joining APA as a plaintiff and pleading the Deed of Accession.[65] Subsequently, on 23 September 2009, the solicitor for the Holihan parties wrote to the Amcor parties solicitor to inform them that Achilla intended to seek leave at the directions hearing on 1 October 2010 to make amendments to the counterclaim relating to the operation of the Deed of Accession.[66]
[62]Amcor Packaging (Australia) Pty Ltd (ACN 004 276 165).
[63]See Humphris 25.11.19 affidavit, at [17].
[64]Ibid. See also affidavit of Jennifer Lynn Dejong dated 22 March 2013 (‘Dejong 22.03.13 affidavit’), at [13] –[14].
[65]Dejong 22.03.13 affidavit, at [14], [21]– [22].
[66]Dejong 22.03.13 affidavit, at [15].
On 1 October 2010, Emerton J made orders in the Barnes proceeding, including orders granting Achilla leave to join APA as a defendant to its counterclaim and to amend it, and requiring the Amcor parties to file and serve an affidavit of documents in relation to the counterclaim. On 4 October 2010, Achilla filed an amended counterclaim, in which it joined APA as a second defendant by counterclaim, and pleaded the Deed of Accession. Achilla also amended its pleading of the alleged D & D costing breach so as to plead the ‘overcharge’ it contended for. The Amcor parties filed their defence to Achilla’s amended counterclaim on 22 October 2010. (Thereafter, the relevant events are summarized in the parties’ agreed procedural chronology set out in Annexure 1 to these reasons).
Against that background, and having regard to the principles set out by the Court of Appeal in Hazeldene’s Chicken Farm Pty Ltd v Victorian WorkCover Authority [No 2][67] and the further observations made by the Court in Chen v Chan,[68] the Holihan parties contend that the Amcor parties’ failure to accept the Calderbank offer before its expiration on 12 January 2008 was ‘unreasonable’ because:[69]
(a)the Holihan Parties had foreshadowed the making of a counterclaim and orders had been made requiring the filing of a counterclaim in the immediate future;
(b)on the Holihan Parties’ uncontradicted evidence, Mr Holihan had raised concerns about OME work being sent to alternative suppliers with Mr Nellies either prior to, or at, a meeting on 1 February 2006;[70] and
(c)even cursory investigations into the operation of the supply arrangements (which were then still on foot) would have revealed the breaches which the Court subsequently found, and demonstrated that the proposed counterclaim would likely be protracted and costly.
[67](2005) 13 VR 435 (Hazeldene’s Chicken Farm), at 440-443 [17]–[29] per Warren CJ, Maxwell P and Harper AJA.
[68][2009] VSCA 233, at [17] per Maxwell P, Redlich JA and Forrest AJA.
[69]Holihan parties’ outline of submissions, at [23].
[70]CB 2389 (agenda for 1 February 2006 meeting); Holihan XIC at T1433.13-T1434.26 (evidence that Nellies had told Mr Holihan before the 1 February 2006 meeting “that a lot of the decisions were out of his control of where work wen[t]”) and Cichonski XXN at T2311.19 to T2312.22. Mr Nellies could not remember the meeting of 1 February 2006 but did not dispute that it occurred. Nor did he dispute that Mr Holihan said to him something to the effect that it had been apparent that a lot of OME work was being taken elsewhere: XXN at T3167.14-23
The Holihan parties submit that the settlement offer, on its terms, ‘extended beyond the proceedings themselves’ and that ‘[i]ts subject matter cannot be read as confined by the pleadings as they then stood.’[71] While they acknowledge that as at 17 December 2007 (when the Calderbank offer was made) APA was not a party to the proceedings,[72] the Holihan parties observe that their offer extended beyond the proceedings themselves because it was stated to be an offer to settle ‘all matters between Amcor and [the Holihan parties], including the proceedings’[73] and contend that:
(a) read sensibly, the offer can only be interpreted as an offer made to all relevant Amcor entities; and (b) there can be no doubt that had it been accepted, there would have been no defensible basis on which Achilla and ACB [Co] Purchaser could have made the claims the subject of the counterclaim, and the parties would never have become subject to the expense or inconvenience of the cross- claim.
[71]Holihan parties’ outline of submissions, at [24].
[72]At that point in time it was neither a plaintiff nor was it a second defendant to Achilla’s counterclaim.
[73]See Holihan parties’ outline of submissions, at [24] and Calderbank offer (Humphris 06.03.20 affidavit, paginated bundle of documents marked JCH-1 at pp 37–38).
Further, they maintain that the matters that became the subject of the counterclaim, that was ultimately tried and determined in Achilla’s and ACB Co Purchaser’s favour, were within the contemplation of the parties at the time that the Calderbank offer was made and expired.[74]
[74]Holihan parties’ outline of submissions, at [25].
In that regard, it is relevant to note by way of contextual background that further and better particulars of the counterclaim were provided by Achilla on 2 May 2008.[75] On 4 October 2010, Achilla filed an amended counterclaim, in which it joined APA as a second defendant.[76] Therein, for the first time, Achilla pleaded the entry into the Deed of Accession in March 2005 (whereby APA was substituted for ACB Co Vendor in all its capacities under the Second Sale Agreement) and alleged breaches of the clause 12.2 purchase obligation by APA (from 21 March 2005 until the end of the Claim Period), and also pleaded the alleged overcharging by APA on the products supplied to Achilla pursuant to clause 12.1 (following entry into the Deed of Accession).
[75]McCudden 19.11.19 affidavit, exhibit CMM-2.
[76]Ibid, exhibit CMM-3.
The Holihan parties submit that when the settlement offer was made, ‘Amcor Ltd and its subsidiaries were well-placed to assess the merits of the offer’[77] and the Amcor parties ‘were given a sufficient time (almost a month) to consider the offer and take instructions in relation to it.’[78] They say that had the Amcor parties accepted it, ‘they could have brought an early end to ”all matters between [the Amcor Parties] and [the Holihan Parties]” in late 2007 or early 2008, avoiding the cost, expense and inconvenience involved with what ended up being protracted and hard-fought litigation.’[79]
[77]Holihan parties’ outline of submissions, at [25].
[78]Holihan parties’ outline of submissions, at [26].
[79]Holihan parties’ outline of submissions, at [26].
Summary of the Amcor parties’ submissions as to costs
In their written submissions on costs,[80] the Amcor parties implicitly acknowledge that the Holihan parties are entitled to an award of costs in their favour on both the counterclaim and the cross-claim.
[80]Amcor parties’ submissions on costs filed on 8 April 2020.
In the case of the counterclaim, the Amcor parties oppose the making of any ‘special’ indemnity costs order, and submit that the Holihan parties should only be awarded 30 per cent of their costs, to be taxed on the standard basis. The significant reduction contended for is said to be appropriate because of:[81]
delays in the prosecution of that counterclaim and further given time expended and or delays resulting from significant unsuccessful allegations and claims such as —
(a)the extensive number of OME jobs originally claimed as a breach by the Holihan parties which were not found in their favour but which were argued over a number of years; and
(b)the extensive, time, evidence and argument spent on the Holihan parties’ implied supply agreement and or estoppel by convention allegations that were not successful.
[81]Amcor parties’ submissions on costs, at [2].
In this regard, the Amcor parties rely upon the McCudden 08.04.20 affidavit and the procedural chronology that was prepared and agreed by the parties in respect of the Achilla counterclaim and filed with the Court on 9 December 2019[82] in advance of the Court delivering its reasons concerning quantification of Achilla’s damages and interest thereon in Amcor Ltd & Ors v Barnes & Ors [No 2] on 20 December 2019.
[82]For convenience, a copy of the agreed procedural chronology is attached as Annexure 1 to these reasons.
The Amcor parties also point to the delay on the part of the Holihan parties in formulating Achilla’s counterclaim and in having it heard, and the further three years or so taken up following the delivery of judgment on the counterclaim and cross-claim for the special referee process to be undertaken and completed and the quantum of any loss to be determined. The Amcor parties submit that given the time the counterclaim has occupied, and the reduced number of OME jobs for which Achilla was ultimately found to be entitled to be compensated and the time spent on Achilla’s arguments that were not successful, ‘the costs of the Holihan parties in respect of the Achilla Counterclaim should be the subject of a significant discount of 70% and on a standard basis.’[83]
[83]Amcor parties’ submissions on costs, at [13].
In the case of the cross-claim, the Amcor parties’ written submissions do not specifically address the Holihan parties’ claim that they should be awarded their costs of and incidental to the cross-claim, including reserved costs, on an indemnity basis.
What orders as to costs should be made on the Holihan parties’ counterclaim?
Should there be any apportionment or reduction of the Holihan parties’ costs?
The Amcor parties bear the onus of demonstrating that there should be any reduction or apportionment of the costs awarded to the Holihan parties in respect of Achilla’s counterclaim.
The Amcor parties’ submissions
The Amcor parties submitted that the principles to be applied in relation to the apportionment of costs were comprehensively and authoritatively set out by Robson J in GT Corporation Pty Ltd v Amare Safety Pty Ltd [No 3],[84] relevantly as follows:
[84][2008] VSC 296 (GT Corporation), at [59].
[59]. . .
5.As a general rule, costs should follow the event, and a successful party should obtain all of the costs of the action even though it failed to establish some of the alternative heads of its claim: Ritter v Godfrey; McFadzean v CFMBEU.
6.Rule 63.04(1) permits the court, in its discretion, to make an order not only as to a distinct question or issue in the pleading sense, but also to any part of the proceeding: Woolf v Burmon; Cretazzo v Lombardi.
7.The court may, in its discretion, decline to order costs in favour of a successful party, or may order the successful party to pay the costs of the unsuccessful party, where the plaintiff failed to establish discrete heads of claim or failed to establish issues which it pursued in its claim, although ultimately succeeding on the basis of another discrete head of claim: McFadzean v CFMBEU.
8.It is not necessary that the issue concerned was raised unreasonably by the party: Rosniak v GIO. Although, a relevant consideration may include whether the issue was raised unreasonably: Mickelberg v Western Australia.
9.The court may, in its discretion, make an order that is a single order, fixing what proportion of a party’s costs should be paid by another party, thus obviating cross-orders or particular orders as to particular costs: Byrns v Davie; McFadzean v CFMBEU; Nolan v Nolan.
10.The caveat referred to by Jacobs J in Cretazzo v Lombardi may have less weight today than when it was decided: Primcom Pty Ltd v Sqarioto; Mickelberg v Western Australia; and Victoria v Master Builders Association of Victoria.
11.Although the quantum of damages recovered compared to that claimed may be a relevant consideration to the court in exercising its discretion, greater emphasis should be given to the failure or loss on discrete claims or issue[s] and the time occupied in relation to them.
Further, the Amcor parties submitted, that while the starting point is that costs follow the event, the Court of Appeal in Marriner v Australian Super Developments Pty Ltd,[85] has re-affirmed that:[86]
where the successful party made multiple claims and failed in respect of some of them or pursued distinct issues upon which it achieved mixed success, in an appropriate case, the court can award that party only part of its costs or make an order that reflects the measure of success achieved by each party on the issues in dispute.
[85][2016] VSCA 141 (Marriner).
[86]Ibid, at [228] (emphasis added by Amcor parties).
They submit that this approach has been followed in recent cases, such as WeatherBeeta Limited and Ors vHammersmith Nominees Pty Ltd[87] and ASIC v Flugge (No 2),[88] where trial judges have examined and determined the question of what portion of costs should be awarded to those parties who have achieved only partial success in their original claims. In this regard, the Amcor parties noted that in WeatherBeeta, Connock J awarded the ‘successful’ party only 5 per cent of the costs claimed in order to take account of the level of success in that counterclaim, and in ASIC v Flugge (No 2), Robson J held there should be no order as to costs notwithstanding that ASIC was successful in some of its claims.
[87][2019] VSC 713 (WeatherBeeta) at [70].
[88][2017] VSC 117 (ASIC v Flugge (No 2)).
The Amcor parties submitted that the present case is one where it is appropriate for the Court to award costs in respect of Achilla’s counterclaim on a discounted basis. First, they contend that when the degree of ‘success’ the Holihan parties achieved is viewed against the background of the plethora of OME jobs they claimed were issued to alternative suppliers across the five year period from July 2003 to July 2008, it will be seen that out of the 1,913 OME jobs alleged as breaches of the Second Sale Agreement, ultimately only 418 OME jobs were found in favour of the Holihan parties,[89] representing less than 22 percent of the breaches originally claimed by them.
[89]McCudden 08.04.20 affidavit at [21]: Ms McCudden deposes that the final list of OME jobs issued to the experts as the Annexure 1 to the agreed joint letter of instructions, for the purpose of their final calculations on 30 July 2019, contained only 418 of the original 1,913 OME jobs claimed by the Holihan parties.
Secondly, the Amcor parties submitted that while the question of the OME jobs that went to alternative suppliers was, at trial, dealt with for the most part on a group or category basis, in the lead up to trial, and after the trial during the special referee process, it was necessary for the parties to approach each of the OME jobs claimed on an individual basis. They submitted that this process:[90]
involved the drafting of the very detailed schedules that made up the Liability and Quantum Particulars filed by the Holihan Parties, the detailed response and reply schedules filed in respect of each of the OME jobs, the review of documentation and discovery that sat behind those detailed schedules, and the provision of further schedules (Details of Claim), along with other material and instructions to the Special Referee, Mr Mines. The time spent on such matters was extraordinarily long and intensive, spanning across many years in the conduct of the Achilla Counterclaim.
[90]Amcor parties’ submissions on costs, at [23].
Against that background, the Amcor parties contend that the ‘time, costs and resources dedicated to considering and responding to each of those 1,913 OME jobs claimed as a breach, including the 78% of the OME breach claims for which the Holihan Parties were not ultimately successful, was very substantial.’[91]
[91]Amcor parties’ submissions on costs, at [25].
The Amcor parties submit the Holihan parties did not obtain ‘the value of relief sought’ as claimed in their Quantum Particulars dated 15 February 2013.[92] The Amcor parties observe that the face value of the OME jobs as claimed by the Holihan parties in their Quantum Particulars was $7,746,427.55 (ex GST and $8,521,070.30 inc GST), and the total ‘Profit to Achilla on the supply’ of those jobs, as set out in the Quantum Particulars was $4,091,022.55 plus interest. Further, the Amcor parties note, the alternative loss amounts for breach, as calculated in respect of the Adjusted Method N proposed by Mr Meredith, the expert appointed by the Holihan parties, but providing for fixed costs to be recovered only from Amcor jobs (as found by the Court), ranged from approximately $4.1million to $6.8million. However, the face value of the invoices ultimately considered by the joint experts (Mr Meredith and Ms Wright) for the purpose of their calculations, as attached as Annexure 1 to the joint letter of instruction dated 30 July 2019, was $882,961.19 (ex GST and $971,258.41 inc GST), and the quantum of loss ultimately found in favour of the Holihan parties in terms of the OME breaches was $2,197,414.
[92]Amcor parties’ submissions on costs, at [28].
In these circumstances, the Amcor parties submit that recovery of only broadly 32 percent (using the upper loss calculation of $6.8million above) of the loss calculated by the joint experts at trial in respect of the alleged breaches of the Second Sale Agreement represents only ‘[p]artial success’, in the sense that the party ‘has not obtained all of the relief sought’ and is a basis upon which to apportion costs.[93]
[93]Amcor parties’ submissions on costs, at [30], citing Queensland North Australia Pty Ltd v Takeovers Panel [No 2] (2015) 236 FCR 370 at [11].
The Amcor parties contend that if the Court determines it is appropriate to apportion costs, it should, following Robson J in GT Corporation, do so in ‘a single order, fixing what proportion of a party’s costs should be paid by another party, thus obviating cross-orders or particular orders as to particular costs’.[94] During oral submissions, the Amcor parties’ solicitor confirmed that they are ‘seeking a percentage discount’ rather than asking the Court to define categories of costs or issues within the counterclaim where costs would not be awarded.[95]
[94][2008] VSC 296, at [59]. See also Maddingley Brown Coal Pty Ltd v Environment Protection Authority [2013] VSC 687 at [42] (Kyrou J).
[95]Transcript 06.05.2020, at p 63 (lines 10-14) (Ms McCudden).
The Amcor parties contend that the findings made by the Court in the Reasons effectively reduced the period during which OME jobs that were sent to alternative suppliers fell to be considered by the Special Referee. That is, given the Court’s findings, the relevant Claim Period commenced from a date following entry into the Deed of Accession on 21 March 2005 (whereby APA became the ‘Vendor’ contracting party in place of ACB Co Vendor) rather than from the Completion Date of 31 July 2003 (under the Second Sale Agreement), such that the relevant number of jobs reduced significantly from 1,913 OME jobs to something in the order of 930 jobs.[96]
[96]Amcor parties’ submissions on costs, at [24(b)], McCudden 8.04.20 Affidavit at [13]–[18] and [22] and Transcript 06.05.2020, at p 66 (lines 4–29) (Ms McCudden).
The Amcor parties submit that when one has regard not only to the time taken at trial, but also to the time occupied in the entire counterclaim proceeding both in the interlocutory stage when responding to requests for particulars of the 1,913 individual OME jobs that were claimed, and also during the Special Referee process, it is clear that much time was expended on OME jobs for which ultimately Achilla was unsuccessful. The Amcor parties contended that the particulars that were ordered to be provided in response to the individual listing of the 1,913 alleged breaches required vast amounts of work to be performed, including requiring supporting material to be discovered or obtained from third parties, and then analysed, instructions were sought and obtained, individual jobs were cross-referenced to other jobs, and then tables were prepared by each party.[97] And when it came to the Special Referee process, a similar exercise was required to be undertaken, whereby details of the work involved and any relevant objection were required to be provided for each OME job that was claimed, and then each OME job had to be assessed individually in accordance with the Reasons and the rulings. [98]
[97]Transcript 06.05.2020, at p 70 (lines 4–10) (Ms McCudden).
[98]Transcript 06.05.2020, at p 70–71 (Ms McCudden).
In essence, the Amcor parties submit that the 1,913 OME jobs that were claimed at trial fell away to the 420 or so OME jobs that ultimately were the subject of the Special Referee process, which entails the consequence that the Amcor parties ‘have established that a very substantial number of the individual breach allegations had failed.’[99]
[99]Transcript 06.05.2020, at p 69 (lines4– 22) (Ms McCudden).
Further, they submitted, the Holihan parties also failed on their ‘implied supply agreement’ and ‘estoppel by convention’ claims, which took up time at the trial and were required to be determined by the Court.
The Amcor parties were also critical of the manner in which Achilla prosecuted the alleged breaches, in the sense that Achilla effectively alleged that each OME job performed by each of the eight alternative suppliers constituted a breach of the Second Sale Agreement, and the time that process took. In that context, the Amcor parties also pointed out that the Holihan parties had put in issue all of the Amcor Displays OME jobs even though the Court had found that the Amcor Displays OME jobs were only a small component of the business as usual work that the ACB Business was doing.[100]
[100]In the Reasons, the Court found (at [479]) that ‘on a ‘business as usual’ construction of the clause 12.2 obligation, Achilla would likely have received some small amount of the Amcor Displays’ work, unless the exception was enlivened’. See also Reasons at [666], [667] and [1703(b)].
The Amcor parties submitted that in order to make good their claim that the Holihan parties costs of the counterclaim should be discounted, they were not required to establish that Achilla’s conduct amounted to misconduct or was unreasonable. Rather, they said, it was sufficient for them to show that significant legal costs were incurred in responding to those claims, and in circumstances where Achilla was not successful on the bulk of them, such that it would be ‘unreasonable’ and ‘unfair’ for the Amcor parties to have to bear their own costs of responding to the 1,500 unsuccessful OME breaches, and their own cost of responding to the unsuccessful implied supply agreement and estoppel claim, as well as bearing the Holihan parties’ costs of those unsuccessful OME breaches and claims.[101]
[101]Transcript 06.05.2020, at p 76 (lines 10-20) (Ms McCudden).
The Holihan parties’ response
During oral submissions, counsel for the Holihan parties accepted that (contrary to the position advanced in their written reply submissions) it is open to a court to discount the costs recoverable by a successful party, and to do so by as much as 70 per cent, but they submitted that there must be some identified basis for departing from the general rule, and it is not enough merely to show that a party has not succeeded on every pleaded basis of its claim.[102] They contended that the Amcor parties had failed to identify anything in the conduct of the Holihan parties that would justify the Court in the present case departing from the fundamental guiding principle identified by the High Court in Sangare concerning the exercise of its discretion as to costs.
[102]Transcript 06.05.2020, at p 79 (lines 15-31) (Mr Maiden QC).
The Holihan parties specifically addressed the allegations raised concerning the Amcor Displays jobs and the work performed in respect of them during the Special Referee process, by drawing attention to Ruling No 1, where the Court recorded the consensus reached between the parties, as follows:[103]
[103]Ruling No 1, [2018] VSC 21, at [25].
25In other words, there is consensus between the parties that the determination of the Holihan parties’ entitlement to damages for work obtained by Amcor Displays will involve two steps:
(a)Mr Mines will first determine whether the Holihan parties are entitled to compensation in respect of the Displays jobs, just as he will do in respect of other jobs by reference to the ‘business as usual’ criterion and the carve-out; and
(b)the Court will then determine how much compensation, if any, the Holihan parties are entitled to receive having regard to the finding that the Amcor parties’ obligation did not extend beyond providing “some small amount of the Amcor Displays work” to Achilla.
Whether a party should have leave to reopen their case will be a matter for formal application and submissions once Mr Mines has completed his work.
The Holihan parties submitted that in circumstances where the Amcor parties had agreed upon the process that was to apply in respect of the Special Referee‘s consideration of the Amcor Displays OME jobs, ‘it sits awkwardly’ for them to now ‘complain that further work was done in respect of [D]isplays jobs which were subsequently not subject to compensation’.[104]
[104]Transcript 06.05.2020, at p 83 (lines 4–7) (Mr Maiden QC).
The Holihan parties then turned to focus their reply on the Amcor parties submissions concerning the Holihan parties lack of success on the implied agreement and estoppel by convention points. They submit that the Amcor parties have failed to identify what was wrong with the Holihan parties raising those allegations, noting that it is not contended they were frivolous, manifestly hopeless or doomed to fail, such as might enliven the Court’s discretion to depart from the usual rule. Instead, they observed, the Amcor parties rely upon the 1955 decision of the Full Court of Victoria in Keddie v Foxall,[105] where their Honours stated:[106]
The cases do show, we think, that in exercising his discretion on costs a Judge may have regard to conduct — not necessarily misconduct — of any party which is calculated to occasion unnecessary expense …
[105][1955] VR 320 (Keddie).
[106]Keddie, ibid, at 323-324 (Lowe, Martin and O’Bryan JJ).
While this passage was relied upon by Kaye J in Lollis v Loulatzis (No 2)[107] to reduce the costs otherwise payable to a successful plaintiff, and was cited with approval by Robson J in GT Corporation,[108] the Holihan parties submit that Keddie has been ‘well and truly overtaken by the far more recent intermediate appellate authorities which have been handed down in the context of modern litigation practice’.[109] But, the Holihan parties submit further, that even if it be the case that a judge may have regard to conduct ‘which is calculated to occasion unnecessary expense’, in the present case there is not, and could not, be any allegation ‘that the conduct of the proceeding by the Holihan parties was calculated to cause unnecessary expense’,[110] so Keddie cannot assist at all.
[107][2008] VSC 35, at [28].
[108][2008] VSC 296, at [49].
[109]Transcript 06.05.2020, at p 84 (lines 1–4) (Mr Maiden QC).
[110]Transcript 06.05.2020, at p 84 (lines 21–23) (Mr Maiden QC).
Against that background, the Holihan parties contend that there is no basis at all to discount their costs incurred on the counterclaim. But if, contrary to their submissions, the Court were of the view that there is some justification for a discount, they submit it would only be in respect of ‘some minor part of the pre-trial and trial costs’ of the counterclaim (only) where it would be appropriate to apply a discount, and then only if there were some means of disentangling those two issues for the remainder of the case which they observed ‘would be impossible’.[111] The Holihan parties also contend that there is no logical basis to discount their costs of the proceeding simply because some time was spent by the parties dealing with OME jobs that ultimately were defeated because of the failure of those two integers of their claim.[112]
Consideration and disposition – the Holihan parties’ costs of the counterclaim should be apportioned or discounted and fixed in a single order
[111]Transcript 06.05.2020, at p 84 (lines 29–30) and p 85 (lines 26–28 and 31) (Mr Maiden QC).
[112]Transcript 06.05.2020, at p 86 (lines 1–4) (Mr Maiden QC).
In its counterclaim, Achilla was seeking compensation totalling $4,091,022.55 (plus interest) in respect of the 1,913 OME jobs that it alleged the Amcor parties sent to alternative suppliers during the currency of the Second Sale Agreement, from 31 July 2003 to 31 July 2008.[113]
[113]In the Holihan parties Quantum Particulars dated 15 February 2013, the face value of the OME jobs claimed by them was $7,746,427.55 (ex GST and $8,521,070.30 inc GST). The total ‘Profit to Achilla on the supply’ of those jobs, as set out in the Quantum Particulars, was $4,091,022.55 plus interest.
At trial, the Holihan parties presented their case as 1,913 instances of the alleged breach of clause 12.2 of the Second Sale Agreement,[114] predicated on alternative scenarios. First, Achilla relied upon the (alleged) implied supply agreement (read together with the Deed of Accession) as covering the period from Completion[115] to the date five years after Completion. Alternatively, if the implied supply agreement was not made out, as the Court found to be the case, Achilla relied upon the Second Sale Agreement (as amended by the Deed of Accession) in respect of the period on and from 21 March 2005 (when the Deed of Accession was entered into) to the date five years after Completion.
[114]Reasons, at [543]: The Court did not accept the contention advanced by the Amcor parties that in determining breach, each individual OME job was to be regarded as being a separate cause of action.
[115]Reasons, [157]: The Court found that Completion took place on 31 July 2003.
In circumstances where the implied supply agreement (and estoppel by convention) contended for by the Holihan parties was rejected, the general position as found by the Court is that Achilla is entitled to be compensated by APA for each job that should have been provided to the ACB Business on a ‘business as usual’ basis for the period following entry into the Deed of Accession, save for work that fell within the carve out or exception to that obligation in clause 12.2.[116] Accordingly, in the final outcome, given the construction of clause 12.2 arrived at by the Court, it was only those OME supplies that APA procured from the alternative suppliers post entry into the Deed of Accession that fell to be considered by the Special Referee.
[116]The relevant exception or ‘carve out’ is contained in clause 12.2 of the Asset Sale Deed dated 2 June 2003 and is expressed in the following terms: ‘other than due to Achilla’s inability to supply consistently and on a basis which is commercial and reasonably acceptable in terms of price, quality and availability’.
Following delivery of the Reasons, the parties jointly identified and mutually agreed upon the period from 27 September 2005 to 31 July 2008[117] as being the relevant ‘Claim Period’.[118] Because the Claim Period commenced from 27 September 2005, rather than 31 July 2003 as contended for by the Holihan parties on their primary case, the Amcor parties submitted that the findings made by the Court rejecting the implied supply agreement (and estoppel by convention) arguments effectively limited the period during which OME jobs that were sent to alternative suppliers fell to be considered by the Special Referee, and together with the ruling delivered on 28 March 2018[119] operated to reduce significantly the number of relevant jobs from the 1,913 OME jobs the Holihan parties claimed to something in the order of 930 jobs.[120]
[117]Being the end date of the supply obligation contained in the Second Sale Agreement.
[118]Transcript 06.05.2020, at p 66 (lines 4–10) (Ms McCudden).
[119]Ruling No 1, which required that extensive revisions be made to the Details of Claim.
[120]Amcor parties’ submissions on costs, at [24(b)], McCudden 8.04.20 Affidavit at [13]–[18] and [22] and Transcript 06.05.2020, at p 66 (lines 4–29) (Ms McCudden).
In those circumstances, the Amcor parties contend that because of the ‘extensive time, evidence and argument’[121] spent on the implied supply agreement (and estoppel by convention) arguments on which the Holihan parties were not successful, including (in the pre-trial phase) the ‘[a]round 12 months of work …spent on intensive drafting of claims and responses’[122] to the individual jobs set out in the Holihan parties’ Quantum Particulars and Liability Particulars, the Holihan parties should be awarded only a portion of their costs on the counterclaim.
[121]Amcor parties’ submissions on costs, at [2(b)].
[122]Amcor parties’ submissions on costs, at [24(a)].
Further, the Amcor parties rely upon the fact that following the delivery of the Reasons, and completion of the work performed by the Special Referee, the final list of OME jobs that was issued to the (accounting) Joint Experts on 30 July 2019, for the purpose of having them perform their final calculations, ‘contained only 418 of the original 1,913 OME jobs claimed by the Holihan parties’[123] and the face value of the invoices ultimately considered by them for the purpose of their calculations, was $882,961.19 (ex GST and $971,258.41 inc GST).[124]
[123]Amcor parties’ submissions on costs, at [24(c)]; McCudden 8.04.20 Affidavit at [21].
[124]Amcor parties’ submissions on costs, at [29].
[199]Transcript 06.05.2020, at p 60 (lines 27–28) (Mr Maiden QC).
[200]Transcript 06.05.2020, at pp 60–61 (lines 29–31, 1–4) (Mr Maiden QC).
The solicitor for the Amcor parties was unable to assist the Court on this point but informed the Court that they would work with the solicitors for the Holihan parties to address the issue.[201] In those circumstances, the Court indicated that it would be assisted if the respective parties could make enquiries and consult, and then revert to the Court within a short time after the conclusion of the hearing.
[201]Transcript 06.05.2020, at p 59 (lines 15–16) (Ms McCudden).
By email sent on 2 June 2020, the solicitors for the Holihan parties wrote to the Court and to the Amcor parties, stating in relation to the undertaking as follows:[202]
[202]Email from the Holihan parties solicitors dated 2 June 2020.
Undertaking
The Holihan parties ask the Court to grant them liberty to apply to enforce the undertaking given by the Amcor Parties on 11 December 2007 in respect of the Counterclaim.
No further information about the undertaking, or the circumstances in which it was given were provided to the Court.
The Court responded later that day, asking that the parties provide the further information the Court had requested during the hearing.
The solicitors for the Holihan parties responded further, by email dated 19 June 2020, indicating that they were awaiting a response from the Amcor parties, but remained of the view that the existence of the undertaking does not affect the exercise of the Court’s discretion as to costs. They reiterated that the Holihan parties seek an order for liberty to apply to seek to enforce the undertaking in respect of the counterclaim.
Subsequently, by email sent on 13 July 2020, the solicitors for the Amcor parties provided a substantive response to the Court and the Holihan parties. Therein they informed the Court that while they had made efforts to obtain the transcript of the hearing conducted on 11 December 2007, at which the undertaking was discussed and provided by counsel for Amcor, neither the VGRS (the relevant transcriber for the hearing) nor the Court Registry was able to locate a copy. Further, they stated:[203]
[203]Email from the Amcor parties solicitors dated 13 July 2020 (emphasis in bold added).
We therefore wish to confirm the following matters with her Honour and note that this email has also been previously shown to Mills Oakley.
From the terms of the 11 December 2007 orders (copy attached) and paragraph 64 of the relevant judgment of Justice Osborne [sic] (copy attached) it does appear the undertaking as to damages was to sit outside the discretion as to costs.
His Honour Justice Osbourne [sic], in dismissing the cross vesting application of Mr Holihan and Mr Barnes, notes at paragraph 64 of the Judgment that “..the defendants have satisfied me that the potential for loss to them arising from this venue goes beyond what would ordinarily be payable by way of a costs order in the event they are ultimately successful”.
There was a hearing on 11 December 2007 where the undertaking was sought and provided (for which transcript has not been located).
The undertaking as to damages is then set out in the Other Business section of the 11 December 2007 orders.
On this material we accept that the undertaking (if still applicable) is separate to the question of any costs orders her Honour may make in the exercise of her discretion.
If the Holihan Parties were to bring a separate application pursuant to that Undertaking it would have to be dealt with separately. Such material has not been filed at this date and I note that in confirming this position the Amcor Parties do so in full reservation of all rights including whether the undertaking has any further operation.
Again we apologise the historical transcript has not been located but trust the above email assists her Honour.
Against that background, the position is that both the Holihan parties and the Amcor parties are of the view that the existence of the undertaking given by the Amcor parties on 11 December 2007 does not affect the exercise of the Court’s discretion as to costs.
However, since the hearing as to costs took place the Holihan parties have informed the Court that they wish to make application for liberty to apply to enforce the undertaking given by the Amcor parties on 11 December 2007 in respect of the counterclaim. Any such application should be made on notice to the Amcor parties, by summons, supported by appropriate affidavit material.
What orders as to costs should be made on the Amcor parties’ cross-claim?
During oral submissions Ms McCudden confirmed that the Amcor parties were not seeking any apportionment or discount of the Holihan parties’ costs on the cross-claim.[204]
[204]Transcript 06.05.2020, at p 62 (lines 25–27) (Ms McCudden).
In those circumstances, having found that it was not unreasonable for the Amcor parties not to accept the Holihan parties’ Calderbank offer, and accordingly, that no special costs order should be made, I propose to order that the Amcor parties pay the (relevant) Holihan parties’ costs of and incidental to the cross-claim, including reserved costs, on the standard basis.
Summary of conclusions
For the reasons set out above, I have determined the issues as to costs as follows:
The Holihan parties’ Calderbank offer
As I have found that it was not unreasonable for the Amcor parties not to accept the Holihan parties’ Calderbank offer, no special costs order should be made.
Costs order on the Holihan parties’ counterclaim
I am satisfied that the Holihan parties’ costs of the counterclaim should be apportioned or discounted and fixed in a single order. Having found that no special costs order should be made, the Amcor parties should be ordered to pay 70 per cent of the (relevant) Holihan parties’ costs of and incidental to the counterclaim, including reserved costs, on the standard basis.
Costs order on the Amcor parties’ cross-claim
Having found that no special costs order should be made, the Amcor parties should be ordered to pay the (relevant) Holihan parties’ costs of and incidental to the cross-claim, including reserved costs, on the standard basis.
I will hear from the parties as to the precise form of the orders to be made.
Annexure 1: Parties’ agreed procedural chronology
| Date | Event | Reference |
| 03/09/07 | Statement of claim | JCH[205] at paragraphs [8], [9] |
| 26/11/07 | Defence filed (Holihan Parties). | |
| 11/12/07 | Orders by Osborn J – Barnes and Holihan proceedings (Barnes Proceeding 8181 of 2007) to be heard together with the Hodgson Proceeding (9420 of 2004). The defendant’s application to have the matter heard in NSW was dismissed. | JCH at paragraph [10] |
| 21/01/08 | Achilla Counterclaim. The OME breach was pleaded. A breach regarding failure to verify D&D costing was pleaded (i.e. not the overcharge breach). | JCH at paragraphs [11], [13] CMM[206] at paragraph [5] (Exhibit CMM-1) JLD 2013[207] at paragraph [5] Cf RAJ at [3] (Exhibit JCJH-23) (which notes 14 December 2007) |
| 04/02/08 | Defence to Achilla counterclaim. | JCH at paragraph [12] (Exhibit JCJH-1) |
| 2008 | Parties were engaged in discovery in both the Barnes and Hodgson Proceedings. | JCH at paragraph [14] |
| 21/02/08 | Amcor Parties served request for further and better particulars, including of OME breaches | RAJ[208] at paragraph [12] (Exhibit JC JH-23) JLD 2013 at paragraph [10] |
| 02/05/08 | Achilla provided particulars of its counterclaim in answer to a request. | CMM at paragraph [6] (Exhibit CMM-2) RAJ at paragraph [14] (Exhibit JCJH-23) |
| 11/12/08 | Amcor Limited and ACB Co Vendor filed an amended statement of claim in the Barnes Proceeding. | JCH at paragraph [15] |
| 2009 | The parties were engaged in discovery and dealing with Amcor’s amendments to its defence in the Hodgson proceeding and its statement of claim in the Barnes proceeding. | JCH at paragraphs [16], [17] |
| December 2009 | Amcor applied to amend pleadings in both proceedings by seeking to join APA as plaintiff and to plead the Deed of Accession. | JCH at paragraph [17] |
| 19/05/10 | Emerton J delivered reasons in relation to Amcor’s application for leave to amend in the Barnes proceeding. Leave to amend was granted. Among other things, the amendments introduced APA as a party by reason of the Deed of Accession dated 21 March 2005. | JCH at paragraph [17] JLD 2013 at paragraph [13], [14] |
| 2/06/10 | Amcor Parties filed further amended statement of claim in the Barnes Proceeding, joining APA as plaintiff and pleading the Deed of Accession. | JLD 2013 at paragraphs [14], [21], [22] |
| 23/09/10 | MO wrote to Corrs advising that Achilla intended to seek leave at the directions hearing on 1 October 2010 to make amendments to the Counterclaim relating to the operation of the Deed of Accession. | JLD 2013 at paragraph [15] |
| 29/09/10 | MO wrote to Corrs asking them to confirm they would file an amended defence to the counterclaim and make discovery, including in relation to the OME breach. | JCH at paragraph [18] (Exhibit JCJH-2) |
| 01/10/10 | Emerton J made orders regarding Barnes Proceeding and the Achilla counterclaim. Among other things, her Honour granted Achilla leave to join APA as a defendant to its counterclaim and amend its counterclaim by 4 October 2010, and made a discovery order requiring the Amcor Parties to file and serve an affidavit of documents in relation to the counterclaim (order 10). | JCH at paragraph [19] (Exhibit JCJH- 3) RAJ at paragraph [4] (Exhibit JCJH- 23) JLD 2013 at paragraph [16] |
| 04/10/10 | Achilla amended counterclaim. Relevantly: · Pleaded as against APA · Pleaded the Deed of Accession · Amended the D&D breach to be more precise – pleaded overcharge. | JCH at paragraph [20] CMM at paragraph [7] (Exhibit CMM-3) RAJ at paragraph [5] (Exhibit JCJH- 23) |
| 05/10/10 | Achilla served amended counterclaim | JLD 2013 at paragraph [17] |
| 06/10/10 | Corrs wrote to MO about OME products | JLD 2013 at paragraph [36(i)] |
| 18/10/10 | Corrs wrote to MO about queries | JLD 2013 at paragraph [36(ii)] |
| 22/10/10 | Defence to Achilla amended counterclaim | JCH at paragraph [21] (Exhibit JCJH- 4) RAJ at paragraph [11] (Exhibit JCJH- 23) |
| 22/10/10 | Corrs wrote to MO in relation to counterclaim, seeking further information and documents referred to in counterclaim | JLD 2013 at paragraph [36(iii)] |
| 28/10/10 | First Le Breton subpoena issued at request of the Holihan Parties. | JCH at paragraph [22] |
| 09/11/10 | First Thompsons subpoena issued at request of the Holihan Parties. | JCH at paragraph [23] |
| 25/11/10 | Letter from MO to Corrs regarding discovery (including of OME sales). | JCH at paragraph [25] (Exhibit JCJH- 5) |
| 14/12/10 | Corrs wrote to MO regarding discovery. | JLD 2013 at paragraph [36(iv)] |
| 24/12/10 | Holihan Parties inspected Thompson’s documents. | JCH at paragraph [23] |
| 9/03/11 | Holihan Parties inspected Le Breton documents. | JCH at paragraph [22] |
| 29/03/11 | Letter from MO to Corrs regarding discovery (including of OME sales, and providing for the first time sample purchase orders and tax invoice). | JCH at paragraph [26(a)] (Exhibit JCJH- 5) JLD 2013 at paragraph [37] |
| 07/04/11 | Letter from Corrs to MO regarding discovery (including of OME sales). | JCH at paragraph [26(b)] (Exhibit JCJH- 7) |
| 07/04/11 | Letter from MO to Corrs regarding discovery (including of OME sales). | JCH at paragraph [26(c)] (Exhibit JCJH- 8) |
| 13/04/11 | Letter from Corrs to MO regarding discovery (including of OME sales). | JCH at paragraph [26(d)] (Exhibit JCJH- 9) |
| 14/04/11 | Letter from MO to Corrs regarding discovery (including of OME sales). | JCH at paragraph [26(e)] (Exhibit JCJH- 10) |
| 15/04/11 | Letter from Corrs to MO regarding discovery (including of OME sales). | JCH at paragraph [26(f)] (Exhibit JCJH- 11) |
| 18/04/11 | Letter from MO to Corrs regarding discovery (including of OME sales). | JCH at paragraph [26(g)] (Exhibit JCJH- 12) |
| 19/04/11 | Hardwick affidavit on behalf of Achilla filed in relation to alleged inadequacy of Amcor discovery. | RAJ at paragraph [16] (Exhibit JCJH- 23) |
| 19/04/11 | Directions hearing / discovery application before Vickery J, at which the following was discussed: · The Amcor Parties’ obligations to discover documents from the suppliers · The provision of particulars by the Holihan Parties. | JCH at paragraph [27] (Exhibit JCJH- 14) JLD 2013 at paragraph [39] RAJ at paragraphs [17]-[20] (Exhibit JCJH- 23) |
| 19/04/11 | MO provided Corrs with draft discovery order | JCH at paragraph [28] (Exhibit JCJH- 15) |
| 04/05/11 | Letter from MO to Corrs regarding discovery (including of OME sales). | JCH at paragraph [29] (Exhibit JCJH-16) |
| 05/05/11 | Smithwick affidavit sworn on behalf of Amcor Parties in relation to discovery application. Among other things, exhibited “summary spreadsheets” relating to five OME suppliers. | JCH at paragraphs [30], [31] RAJ at [22] (Exhibit JCJH- 23) JLD 2013 at paragraph [42] |
| 06/05/11 | Further return of Holihan Parties’ discovery application (adjourned from 19 April 2019). Among other things, Vickery J raised the issue of splitting liability and quantum on the counterclaim. | JCH at paragraph [32] (Exhibit JCJH-17) |
| 10/05/11 | Further return of Holihan Parties’ discovery application (adjourned from 6 May 2011). Transcript of hearing before Vickery J records, among other things: · his Honour proposed, by email, to conduct the trial (then listed to commence on 16 May 2011) in two phases: the first between 16 May and 30 June 2011, and the second between 1 August to 10 August 2011 (page 3 of the transcript); · it was also proposed that the Achilla counterclaim and final addresses be heard in the second phase (page 3 of transcript); · as a result of discussion between his Honour and counsel, the second phase was brought forward to 25 July to 2 August 2011 (pages 8 to 9 of transcript); · it was not then contemplated that a liability trial of the Achilla counterclaim would be ‘a long matter at all’. Vickery J said that ‘two days should see it out. It’s a very limited and confined issue’ (pages 10 to 11 of transcript); · the Holihan Parties sought further discovery from Amcor; · The Amcor Parties were seeking further material from Achilla and particulars as to what claims Achilla was making (page 26 of transcript.) | JCH at paragraphs [33], [34] (Exhibit JCJH- 18) |
| 10/05/11 | Among others, orders were made in the proceeding: · splitting the trial of the question of quantification of loss on the counterclaim: order 5; · listing the trial as to liability on the counterclaim for 25 and 26 July 2011 on an estimate of two days: order 7(a); · ordering that the Amcor Parties make discovery in relation to the OME breach (including summary spreadsheets) and the overcharge breach: orders 3 and 4; · ordering Achilla to file further and better particulars of the alleged breaches of the agreement referred to in the Achilla Counterclaim: order 9. | JCH at paragraph [34] (Exhibit JCJH- 19) RAJ at paragraph [28] (Exhibit JCJH- 23) JLD 2013 at paragraph [46], [48] |
| 13/05/11 | Summary spreadsheets provided to Achilla | RAJ at paragraph [30]-[31] (Exhibit JCJH- 23) JLD 2013 at paragraph [47] |
| 16/05/11 | Amcor discovered some summary spreadsheets | JCH at paragraphs [35], [36] JLD 2013 at paragraph [46] |
| 16/05/11 | Start of ‘phase 1’ of Principal Trial (day one). Phase 1 lasted until 29 June 2011, over 27 sitting days, the transcript of which numbered 3440 pages. | JCH at paragraphs [37], [41] |
| 18/05/11 | Vickey J raised the possibility of deferring the hearing of the counterclaim and counsel for Holihan Parties stated that they would take instructions. | JCH at paragraph [38] (Exhibit JCJH- 20, Transcript p 365-366) |
| 22/06/11 | Vickey J again raised the possibility of deferring the hearing of the counterclaim, noting (among other things): HIS HONOUR: ‘The regrettable position is that issues have expanded in the case rather than contracted … which puts the Achilla counterclaim in a difficult position in terms of hearing it in that period in late July when we return from the vacation and I’m afraid I’ll have to direct that the Achilla counterclaim be put off to another time. …’ | JCH at paragraph [39] (Exhibit JCJH- 21, Transcript p 2939, line 14) |
| 28/06/11 | Vickey J again raised the possibility of deferring the hearing of the counterclaim, noting (among other things): MR RIORDAN: ‘The other matter, I think, was the counterclaim where Your Honour has indicated that that should go off.’ HIS HONOUR: ‘Yes.’ MR RIORDAN: ‘We’ve read the play to Your Honour and we accept that it’s sensible and it should go off. Frankly we think it should go off probably until Your Honour’s determination of this matter.’ HIS HONOUR: ‘Yes, all right. I’ll make such a direction then, that all matters relating to the Achilla counterclaim be adjourned sine die.’ | JCH at paragraph [40] CMM at paragraph [8] (Exhibit CMM-4) (Transcript p 3314, line 22) |
| 29/06/11 | Vickery J made orders in the proceeding including: · an order that the Achilla counterclaim be adjourned for further directions to a date to be fixed and vacating the trial date for the counterclaim of 25 July 2011 (order 7); · an order vacating, inter alia, orders 5 and 7 of the orders of 10 May 2011 (order 8); and · adjourning the further hearing of the Principal Trial to 25 July 2011 (order 10). | JCH at paragraph [41] (Exhibit JCJH- 22) RAJ at paragraph [32] (Exhibit JCJH- 23) |
| 29/06/11 | End of ‘phase 1’ of the Principal Trial. | |
| 25/07/11 | Start of ‘Phase 2’ of the Principal Trial. ‘Phase 2’ occupied five sitting days, taking the transcript to a total of 3,991 pages. | JCH at paragraph [42] |
| 20/03/12 | Vickery J delivered reasons for judgment in the Principal Trial. | |
| Mar-Sept 2012 | The parties were engaged with Amcor’s appeals and Amcor’s application for leave to amend, and account of profit issues. | JCH at paragraph [44] |
| 10/05/12 | Orders made by Vickery J for procedural steps in the counterclaim, including orders: · requiring Amcor Parties to make discovery, including the summary spreadsheets (paragraphs 9-11 of the order); · requiring Achilla to make further discovery of the issues in the counterclaim (order 14); · requiring Achilla to file further particulars of its counterclaim, as well as a schedule setting out all material facts and conclusions of law on which the allegations made in paragraph 6 of the amended counterclaim were based (order 12); · requiring Amcor Parties to file a copy of the schedule setting out all material facts and conclusions of law relied on in response to the schedule filed by Achilla (order 13). | JCH at paragraphs [45], [46] RAJ at paragraph [37] (Exhibit JCJH- 23) |
| 11/05/12 | Orders made by Vickery J adjourning the hearing of the counterclaim from 4 June 2012 to 29 October 2012 on an estimate of 2-3 days. | JLD 2012[209] at paragraph [5] |
| 18/05/12 | Second amended counterclaim of Achilla | JCH at paragraph [47] CMM at paragraph [9] (Exhibit CMM-5) JLD 2013 at paragraph [20] |
| 21/05/12 | Amcor Parties made discovery of invoices etc. pursuant to 10 May 2012 orders. | JCH at paragraph [48] RAJ at paragraph [38] (Exhibit JCJH-23) JLD 2013 at paragraph [49] |
| 29/05/12 | Amcor Parties made discovery of summary spreadsheets pursuant to 10 May 2012 orders. | JCH at paragraph [49] RAJ at paragraph [41] (Exhibit JCJH- 23) JLD 2013 at paragraph [49] |
| 06/07/12 | Further subpoena to Le Breton issued at request of Holihan Parties. | JCH at paragraphs [50], [51] |
| 20/07/12 | The Holihan Parties filed and served further particulars of counterclaim (as to overcharge). | CB 156 JCH at paragraph [52] CMM at paragraph [10] (Exhibit CMM-6) |
| 31/07/12 | The Holihan Parties filed and served particulars of OME breach. | JCH at paragraph [53] CMM at paragraph [11] (Exhibit CMM-7) |
| 21/08/12 | Amended particulars of OME breach. | JCH at paragraph [54] CMM at paragraph [12] (Exhibit CMM-8) RAJ at paragraph [47] (Exhibit JCJH- 23 JLD 2013 at paragraph [54] |
| 4/09/12 | Vickery J made various further orders including for: · Extending time for Amcor Parties’ particulars in response (reply schedule pursuant to order 13 of 10 May orders) (order 1); · Exchange of proposed amended pleadings (orders 2 to 6); · Extending time for Achilla discovery (order 7); · Achilla to file its evidence by 26 October (order 9); · Amcor to then file its statements by 9 November (order 11); and · Adjourning start of trial from 29 October 2012 to 19 November 2012 with a revised 5-day estimate (order 12). | JLD 2012 at paragraph [9] |
| 24/09/12 | Amcor Parties’ response to the Holihan Parties’ 21 August 2012 particulars. The Amcor Parties alleged, for the first time, that purchases made by Amcor Displays Pty Ltd were not within the supply agreement. | JCH at paragraph [55] RAJ at paragraph [48] (Exhibit JCJH- 23) |
| 27/09/12 | Amended defence to second amended counterclaim of Achilla. | JCH at paragraph [56] (Exhibit JCJH- 24) RAJ at paragraph [49] (Exhibit JCJH-23) JLD 2013 at paragraph [34], [63] |
| 01/10/12 | Holihan Parties served amended particulars of OME breach. | CMM at paragraph [13] (CMM-9) |
| 11/10/12 | Holihan Parties’ reply to Amcor Parties’ defence. | JCH at paragraph [57] RAJ at paragraph [50] (Exhibit JCJH- 23) |
| 01/11/12 | Hearing. Trial date vacated at Amcor’s application with costs of the application awarded against Achilla. | JCH at paragraph [58] RAJ at paragraph [51]-[53] (Exhibit JCJH- 23) JLD 2012 at paragraph [2] JLD 2013 at paragraphs [69], [70] |
| 07/11/12 | Orders by Vickery J, including an: · order requiring Amcor to provide an affidavit as to its discovery re production orders · order requiring further discovery and affidavit from Achilla · order for Corrs to uplift and inspect material produced on subpoenas · order vacating the trial date scheduled for 19 November · Amcor Parties’ costs of the adjournment of the trial to be paid by Achilla. | JCH at paragraph [59] (Exhibit JCJH- 25) |
| 12/11/12 | Amcor Parties made an affidavit regarding discovery of production orders. | JCH at paragraph [60] |
| 19/11/12 | Directions hearing and order that Amcor Parties make discovery of production orders etc. with respect to the supplies referred to in Achilla's Amended Further and Better Particulars of Counterclaim filed 21 August 2012. | JCH at paragraph [61] RAJ at paragraph [54] (Exhibit JCJH- 23) JLD 2013 at paragraph [50], [80] |
| 27/11/12 | Order by Vickery J in the Barnes Proceeding and the Achilla counterclaim, including in respect of the counterclaim: · requiring Amcor make discovery, and relating to discovery of information on the PICK system (order 7, 8 and 9). · an order requiring Achilla to file affidavits in relation to its own discovery, and a revised, draft Scott schedule by 8 February 2013 (order 14). | JCH at paragraph [62] (Exhibit JCJH- 26) |
| 03/12/12 | Amcor filed affidavits pursuant to discovery order. | JCH at paragraph [63], [64] |
| 20/12/12 | Amcor filed a further affidavit pursuant to discovery order. | JCH at paragraph [65] JLD 2013 at paragraph [51]-[53] RAJ at paragraph [55] (Exhibit JCJH- 23) |
| 05/02/13 | Mills Oakley wrote letter to Corrs advising certain invoices had been overlooked by Achilla. | JLD 2013 at paragraph [83] |
| 08/02/13 – 18/02/13 | Achilla served draft liability schedule and quantum schedule on 8 February 2013 in accordance with order 14 of the 27 November orders. Achilla subsequently provided “final” liability particulars on 18 February 2013 and quantum particulars on or around 15 February. | RAJ at paragraph [59] (Exhibit JCJH- 23) See also JLD 2013 at paragraph [55] CB 84 CMM at paragraph [14] (Exhibit CMM-10) JCH at paragraph [66] |
| 21/02/13 | Order by Vickery J regarding particulars of liability. | |
| 22/04/13 | Orders of Vickery, inter alia: · adding ACB Australia Pty Ltd as plaintiff; · granting Achilla leave to amend its counterclaim, and ordering that the costs of the amendment be costs in the proceeding | JCH at paragraph [67] (Exhibit JCJH- 27) |
| 26/04/13 | Third amended counterclaim of the fourth defendant. Pleaded (a) implied contract; (b) conventional estoppel; (c) charge | JCH at paragraph [67] CMM at paragraph [15] (Exhibit CMM-11) |
| 03/05/13 | The Holihan Parties filed and served liability particulars of paragraph 6 of the third amended counterclaim. | Item 7 in the CB CMM at paragraph [16] (CMM-12) |
| 03/06/13 | The Amcor Parties filed and served their response to the Holihan Parties’ quantum particulars (Schedule B to amended defence). | CB 112 |
| 07/06/13 | The Amcor Parties filed and served their response to the Holihan Parties’ liability particulars of paragraph 6 of the third amended counterclaim | Item 8 in the CB (CD only due to size) |
| 8/07/13 | Amended defence to third amended counterclaim (pursuant to 21 June 2013 order of Vickery J). This is the first time the Amcor Parties pleaded their cross-claim. | JCH at paragraph [68] (Exhibit JCJH- 28) |
| 27/09/13 | Amended defence to third amended counterclaim of the fourth defendant and cross-claim. (filed pursuant to order of Hansen & Tate JJA on 13 September 2013). | CB 22 JCH at paragraph [69] (Exhibit JCJH- 29) |
| 25/10/13 | Amended reply to amended defence to third amended counterclaim and defence to cross-claim. | CB 65 JCH at paragraph [70] (Exhibit JCJH- 30) |
| Late Oct 2013 | Amcor Parties foreshadowed an application to stay the counterclaim pending the hearing and determination of the appeals. | JCH at paragraph [71] |
| 19/12/13 | Directions hearing adjourned sine die to allow matter to go before the Court of Appeal. | JCH at paragraph [71] CMM at paragraph [17] (Exhibit CMM-13) |
| 13/03/14 | Court of Appeal refused Amcor Parties’ application to have the appeals heard and determined first, before the counterclaim. | JCH at paragraph [71] CMM at paragraph [18] (CMM-14) |
| July 2014 | Subpoenas to Alternative Suppliers. | JCH at paragraphs [72], [73], [74] |
| 17/07/14 | Court made orders for conduct of counterclaim. | CMM at paragraph [19] (Exhibit CMM-15) |
| 17/09/14 | Directions hearing in proceeding. Orders were made by Vickery J for, among other things: · Holihan Parties have leave to file and serve a response to the Amcor Parties Response to Liability of Particulars (order 1); · the filing and service of the Holihan Parties’ lay witness statements on their counterclaim by 10 October 2014 (order 4); · the filing and service of the Amcor Parties’ witness statements on the counterclaim and the cross-claim by 15 December 2014 (order 6); · the filing and service of all expert reports upon which the Holihan Parties rely by 26 September 2014 (order 20); · the filing and service of all expert reports upon which the Amcor Parties rely by 15 December 2014 (order 21); · an order pursuant to s 50 of the Civil Procedure Act 2010 that the parties consult, prepare and deliver to the trial judge a statement of issues that, among other things, set out all of the issues arising from the pleadings by 6 February 2015 (order 22). | CMM at paragraph [19] (Exhibit CMM-15) |
| 06/10/14 | The Holihan Parties filed and served an expert report of Mr Meredith (regarding the quantum of loss and damage on the counterclaim). | CB 562 |
| 10/10/14 | The Holihan Parties filed and served: · witness statements of Mr Cichonski, Mr Daaboul, Mr Silva and Mr Whitechurch; and · statements of the substance of the evidence expected to be given by Mr Borg, Mr Dailey, Mr Joyce, Mr Kent, Mr Kierdal, Mr Le Breton, Mr Manser, Mr Pellizzari, Mr Prasad and Mr Ward. | CB 255, 265, 282, 285, 294, 295, 303, 307, 310, 311, 314, 315, 316 and 317 |
| 16/10/14 | The Holihan Parties filed and served a statement of the substance of the evidence expected to be given by Mr Pribilovics. | CB 319 |
| 28/10/14 | Amcor Parties filed further and better particulars of the amended defence to counterclaim. (filed pursuant to orders made 17 September 2014). | |
| 30/10/14 | The Holihan Parties filed and served a witness statement of Mr Papadimatos. | CB 271 |
| 10/11/14 | The Holihan Parties filed and served a witness statement of Mr Holihan. | CB 321 |
| 15/12/14 | Due date for Amcor Parties’ lay and expert evidence. | Order 21 of the orders made 12/09/14 |
| 11/02/15 | The Amcor Parties filed and served witness statements of Ms Gerke, Mr Guy, Mr MacPhail, Ms McPherson and Mr Powell and a statement of the substance of expected evidence to be given by Mr Garcia. | CB 495, 500, 508, 515, 521 and 528 |
| 12/02/15 | The Amcor Parties filed and served a witness statement of Mr Roberts. | CB 532 |
| 13/02/15 | Order by Vickery J, including order setting the matter down for trial on 18 May 2015 on an estimated duration of 4 weeks and granting the Holihan Parties leave to further amend counterclaim. | |
| 25/02/15 | The Amcor Parties filed and served a witness statement of Mr Phillips. | CB 539 |
| 27/02/15 | The Amcor Parties served an expert report by way of reply to Mr Meredith’s (the report is dated 26 February 2015). | CB 742 |
| 03/03/15 | The Amcor Parties filed and served a statement of the substance of expected evidence to be given by Mr Nellies. | CB 558 |
| 13/03/15 | Orders were made in the proceeding, including that : · the Holihan Parties file and serve any witness statements in reply and on the cross- claim by 20 March 2015 (order 3), · pursuant to s 50 of the Civil Procedure Act 2010, the trial of the counterclaim be conducted by reference to the statement of issues annexed to the order (order 4). | JCH2[210]6 at paragraph [6] (Exhibit JCJH- 31) CB 1 |
| 23/03/15 | Holihan Parties filed and served witness statement of Mr Holihan by way of reply and on the cross- claim. | CB 415 |
| 23/04/15 | The Holihan Parties served a further expert report of Mr Meredith (in relation to the cross-claim). | CB 778 |
| 11/05/15 | The Holihan Parties served their objections to the Amcor Parties’ evidence. They also advised that they were ready to exchange opening outlines. | |
| 25/05/15 | Trial commenced. | |
| May-Sep 2015 | Trial. | |
| 02/09/15 | Final issues list. | |
| 28/11/16 | Reasons for judgment. | |
| 02/02/18 | Ruling No. 1. | |
| 29/03/18 | Ruling No. 2. | |
| 14/06/19 | Ruling No. 3 (Amcor Displays). |
[205]Affidavit of James Crichton John Humphris dated 26 November 2019.
[206]Affidavit of Christiana Maree McCudden dated 19 November 2019.
[207]Affidavit of Jennifer Lynn Dejong dated 22 March 2013.
[208]Affidavit of Roger Alexander Jepson dated 14 February 2013 (a copy of which is enclosed at Exhibit JCJH-23 of JCH.
[209]Affidavit of Jennifer Lynn Dejong dated 31 October 2012.
[210]Affidavit of James Crighton John Humphris dated 25 November 2019.
Annexure 2: Parties’ agreed post-trial chronology (post-Reasons)
| Date | Event | Reference |
| 28/11/16 | Reasons for judgment delivered. | [2016] VSC 707 |
| 05/04/17 | Mention before Justice Sloss. This hearing followed the Court’s suggestion that the parties consult regarding the jobs that might remain subject to Achilla’s claim in light of the Court’s findings in [2016] VSC 707. In their written submissions filed 26.03.17, the Holihan Parties submitted that, among other issues, the issue regarding how to quantify the effect of the Amcor Displays work on Achilla’s entitlement to compensation (at [7(b)]) should be determined prior to the referral of jobs to an expert for assessment having regard to the Court’s reasons and findings (at [5]). The Holihan parties noted that compensation for Amcor Displays was not to be determined on a job-by-job basis (at [24]) and proposed two options for determining the compensation payable for that body of work. Those options (at [25(a)] and [25(b)]) were the two ‘fall-back’ options that Achilla proposed at the hearing on 08.02.19. At the mention on 05.04.17, Sloss J stated, inter alia: [G]iven that I have found that on a business as usual construction of the clause 12.2 obligation, Achilla would likely have received some small amount of Amcor Displays work of the kind the ACB Business had been doing for it prior to the sale, save for circumstances where the relevant exception was enlivened clause 12.2 entitled Achilla or the ACB Business to continue to receive a small amount of the same sort of Amcor Displays work." So there has to be, first of all, an identification of what that work was prior to the sale, and that won't be done by looking at the 172,000 as opposed to the 2.6m. …you have to first of all identify the work as something that on a business as usual basis would've been given to Achilla - given to the ACB Business that Achilla can then say it was entitled to perform after the sale. … you've got to go through the invoices and look at the work and see what was involved, and you've got to be able to demonstrate that on a business as usual basis that work was capable of being done, both before the sale and after the sale on a business as usual basis by the business. …I am not suggesting it's easy but I think the work has to be done before we can talk about the detail of any particular job. … I think the work has to be done on a job by job basis for everything that's in contention before we give consideration to referring it out to anyone. | Affidavit of Edwin Adrian Fah sworn in the proceeding on 14 December 2017 (Second Fah Affidavit) at [5]-[6] |
| 12/04/17 | Orders made for, in summary, the filing and service of details of claim and response in relation to jobs performed by alternative suppliers over the period 27 September 2005 to 31 July 2008. | 12.04.17 orders exhibited to the affidavit of Christiana Maree McCudden made 8 April 2020 (McCudden Affidavit) at CMM-18 |
| 22/05/17 | The Holihan parties filed and served “Details of Claim” in relation to jobs performed by alternative suppliers over the claim period. | Second Fah Affidavit at [7(a)] McCudden Affidavit at [13(c)] |
| 25/05/17 | Revised Details of Claim filed. | McCudden Affidavit at [13(d)] |
| 29/06/17 | Orders made (by consent) amending the timetable set by the orders made on 12 April 2017 and listing the matter for mention on 8 September 2017 (at 10am). | 29 June 2017 orders McCudden Affidavit at [13(f)] |
| 10/07/17 | The Holihan parties filed their “rectified” Details of Claim for jobs performed by alternative suppliers over the claim period. | Second Fah Affidavit at [7(b)] McCudden Affidavit at [13(g)] |
| 01/09/17 | The Amcor parties filed and served their responses to the Holihan parties’ rectified Details of Claim. | Second Fah Affidavit at [7(c)] McCudden Affidavit at [13(j)] |
| 06/09/17 | Mention of appeals / application for leave to appeal in Court of Appeal. | Affidavit of Janet Mary Whiting sworn in the proceeding on 20 November 2017 (Whiting Affidavit) at [24] |
| 08/09/17 | Mention of the matter before Justice Sloss. Orders made, in summary, extending the due date for the Holihan parties’ replies to the Amcor parties’ responses to claims and listing the matter for mention on 20 October 2017. | Second Fah Affidavit at [8] 8 September 2017 orders |
| 13/10/17 | Consent orders extending the due date for the Holihan parties’ replies to the Amcor parties’ Details of Response to claims and listing the matter for mention on 24 November 2017. | 13 October 2017 orders |
| 17/10/17 | Mention of appeals / application for leave to appeal in Court of Appeal. | Whiting Affidavit at [24] |
| 15/11/17 | The Holihan parties wrote to the Amcor parties and suggested that three issues should be dealt with in advance of any order 50 reference being made. The Holihan parties also provided the Amcor parties with a minute of proposed orders for the reference. | Affidavit of Edwin Adrian Fah sworn in the proceeding on 23 November 2017 (First Fah Affidavit) at [5]. Second Fah Affidavit at [10] |
| 17/11/17 | Holihan parties filed and served Details of Reply to Amcor parties’ Details of Response. This was in the form of consolidated claim documents containing (1) Achilla’s Details of Claim; (2) the Amcor parties’ Details of Objection; and (3) Achilla’s Details of Reply. | Second Fah Affidavit at [7(d)] McCudden Affidavit at [13(k)] |
| 20/11/17 | The Amcor parties filed and served a summons seeking, inter alia, final orders answering the questions raised in the parties’ Joint Statement of Issues. The summons was supported by the Whiting Affidavit. | Second Fah Affidavit at [11] |
| 24/11/17 | Mention of matter before Justice Sloss. Orders made, in summary: · for the Holihan parties to file and serve any evidence in opposition to the Amcor parties’ summons and in support of their application for “Referral Directions” as foreshadowed in the 15 November 2017 letter from Mills Oakley to Gilbert + Tobin; · for the filing and service of submissions by the parties in relation to the summons and the “Referral Directions”; and · listing the summons and “Referral Directions” for hearing on 29 January 2018. | Second Fah Affidavit at [12] |
| 07/12/17 | The Amcor parties informed the Holihan parties that they consent to the appointment of Mr Ronald Mines as Special Referee. | Second Fah Affidavit at [14] |
| 08/12/17 | The Holihan parties proposed a “drip feed” approach to the reference, with some 96 jobs to be decided first, before Sloss J delivers her reasons in relation to the Referral Directions. | Second Fah Affidavit at [15]-[16] |
| 13/12/17 | Letter from Gilbert + Tobin to Mills Oakley proposing that the mention listed for 15 December 2017 be adjourned. | Second Fah Affidavit at [18] |
| 15/12/17 | Mention of matter before Justice Sloss. | |
| 29/01/18 | Contested hearing in relation to the Referral Directions and the Amcor parties’ 20 November 2017 summons. | McCudden Affidavit at [14] |
| 02/02/18 | Amcor Ltd v Barnes (Ruling No. 1) [2018] VSC 21 (re Amcor parties’ summons). | |
| 06/02/18 | Mention before Sloss J. Orders made in relation to first tranche of Order 50 reference. | 6 February 2018 orders |
| 29/03/18 | Amcor Ltd & Ors v Barnes & Ors (Ruling No. 2) [2018] VSC 137 (re Referral Directions). | McCudden Affidavit at [16] |
| 13/04/18 | Orders made for, inter alia, the conduct of the second tranche of the Order 50 reference and the preparation of Revised Claim Documents taking into account Ruling No. 2. | 13 April 2018 orders |
| 15/06/18 | Orders made extending the timetable for the preparation of Revised Claim Documents. | 15 June 2018 orders |
| 28/06/18 | Revised Claim Documents sent to Mr Mines. | McCudden Affidavit at [18] |
| 12/11/18 | Delivery of report on Order 50 reference. | |
| 08/02/19 | Contested hearing re “Amcor Displays Objection” and adoption of referee’s report. | |
| 14/06/19 | Amcor Ltd & Ors v Barnes & Ors (Ruling No. 2) [2019] VSC 393 (regarding Amcor Displays’ Objection and reopening). |
SCHEDULE OF PARTIES
| No. 8181 of 2007 | |
| BY ORIGINAL PROCEEDING | |
| BETWEEN: | |
| AMCOR LIMITED (ACN 000 017 372) | First Plaintiff |
| ACN002693843 BOX PTY LTD (ACN 002 693 843) | Second Plaintiff |
| ORORA LIMITED (FORMERLY AMCOR PACKAGING (AUSTRALIA) PTY LTD) (ACN 004 275 165) | Third Plaintiff |
| SPECIALTY PACKAGING GROUP PTY LTD (FORMERLY SERVICE CONTAINERS PTY LTD) (ACN 005 319 666) | Fourth Plaintiff |
| - and - | |
| TREVOR MARK BARNES | First Defendant |
| CRAIG ANTHONY HOLIHAN | Second Defendant |
| ACB AUSTRALIA PTY LTD (ACN 104 489 670) | Third Defendant |
| AUSTRALIAN CORRUGATED BOX CO PTY LTD (FORMERLY ACHILLA PTY LTD) (ACN 104 489 581) | Fourth Defendant |
| IAN RUSSELL SANGSTER | Fifth Defendant |
| CHRISTOPHER IAN ROGER BAYLEY | Sixth Defendant |
| ALBERT WILLIAM MIHELIC | Seventh Defendant |
| BY COUNTERCLAIM | |
| BETWEEN: | |
| AUSTRALIAN CORRUGATED BOX CO PTY LTD (FORMERLY ACHILLA PTY LTD) (ACN 104 489 581) | First Plaintiff by Counterclaim |
| ACB AUSTRALIA PTY LTD (ACN 104 489 670) | Second Plaintiff by Counterclaim |
| -and- | |
| ACN002693843 BOX PTY LTD (ACN 002 693 843) | First Defendant by Counterclaim |
| ORORA LIMITED (FORMERLY AMCOR PACKAGING (AUSTRALIA) PTY LTD) (ACN 004 275 165) | Second Defendant by Counterclaim |
| BY CROSS-CLAIM | |
| BETWEEN: | |
| ORORA LIMITED (FORMERLY AMCOR PACKAGING (AUSTRALIA) PTY LTD) (ACN 004 275 165) | Cross-Claimant |
| - and - | |
| AUSTRALIAN CORRUGATED BOX CO PTY LTD (FORMERLY ACHILLA PTY LTD) (ACN 104 489 581) | First Defendant to Cross-Claim |
| ACB AUSTRALIA PTY LTD (ACN 104 489 670) | Second Defendant to Cross-Claim |
| CRAIG ANTHONY HOLIHAN | Third Defendant to Cross-Claim |
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