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Amcor Ltd v Barnes (No 5)

Amcor Ltd v Barnes (No 5)

Case [2013] VSC 51 15 February 2013

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

No. 8181 of 2007

AMCOR LTD AND ORS (ACN 000 017 372)	Plaintiffs
v
TREVOR MARK BARNES AND ORS	Defendants

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JUDGE:	VICKERY J
WHERE HELD:	MELBOURNE
DATES OF HEARING:	23-24 MAY 2012
DATE OF RULING:	15 FEBRUARY 2013
CASE MAY BE CITED AS:	AMCOR LTD v BARNES (No. 5)
MEDIUM NEUTRAL CITATION:	[2013] VSC 51

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COSTS – Exercise of discretion as to costs in a complex and unusual case – Orthodox approach “costs follow the event” not applied – Successful defendants guilty of misconduct in the transactions complained of – Departure from settled practice – Conduct involving serious breach of duty to an employer - Conduct creating a misleading documentary record – Wrongful conduct in backdating documents – Trial prolongated to some extent in dealing with the issue – Successful defendants’ costs order reduced to 10 per cent in one case and 75 per cent in the other, payable on a party/party basis – Apportionment of costs by issue.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs (8181 of 2007)	Mr J D Elliott SC with Ms SB McNicol and Ms LH Kirwan	Corrs Chambers Westgarth
For the First Defendant (8181 of 2007)	Mr Barnes made submissions in person
For the Second–Fourth Defendants (8181 of 2007)	Mr P Riordan SC with Mr S Maiden	Mills Oakley Lawyers

HIS HONOUR:

Introduction

In the proceedings before the Court, which were heard concurrently in a joint trial, James George Hodgson v Amcor Limited and Amcor Limited & Others (Supreme Court Proceeding No 9420 of 2004) (the “Hodgson Proceeding”), and Amcor Limited & Others and Trevor Mark Barnes & Others (Supreme Court Proceeding No 8181 of 2007) (the “Barnes Proceeding”), (together called the “Proceedings”), the Court delivered its reasons on 20 March 2012 (the “Principal Reasons for Judgment”).[1]
[1] Hodgson v Amcor Limited and Amcor Limited & Others [2012] VSC 94. NOTE: This version was amended pursuant to the ‘Slip Rule’ by Order made 1 May 2012 and reasons: Hodgson v Amcor (No. 8) [2012] VSC 162.

As in the Principal Reasons for Judgment, the Amcor entities in both proceedings are collectively referred to as “Amcor” or the “Amcor Parties” with the composition of those entities changing from time to time in accordance with the context.

In these reasons the “Defendant parties” comprise Messrs. Hodgson, Barnes, Sangster, Mihelic, Bayley, Holihan and their associated companies, with the composition of those persons changing from time to time in accordance with the context.

The joint trial was conducted in two parts: the “Hodgson Quantum Trial” conducted between 30–31 March 2011 (which dealt essentially with the quantum of Hodgson’s claims in the Hodgson Proceeding), and the “Liability Trial” conducted between 1 April–1 August 2011 (which dealt essentially with Amcor’s counterclaim in the Hodgson Proceeding and its claims in the Barnes Proceeding).

Following delivery of the Principal Reasons for Judgment, on 20 March 2012 judgment was entered for the Plaintiff in the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Amcor Ltd v Barnes (No 5)

Details

AGLC: Amcor Ltd v Barnes (No 5) [2013] VSC 51
Case: [2013] VSC 51
Decision Date: 15 FEBRUARY 2013

CaseChat Overview and Summary

In the matter of Amcor Ltd v Barnes (No 5), the court was tasked with determining the apportionment of costs between the parties involved in a complex dispute. The plaintiffs, Amcor Ltd, sought damages against the defendants, Barnes, for breaches of fiduciary duty and misconduct in the context of their employment and subsequent transactions. The High Court of Australia was called upon to adjudicate the matter due to its complexity and the unique circumstances surrounding the case.

The primary legal issue before the court was whether the orthodox approach of costs following the event could be deviated from in this instance. Given the defendants' involvement in misconduct, including a serious breach of duty to the employer and the creation of misleading documentary records, the court considered whether this warranted a departure from the established practice of costs allocation. Additionally, the trial had been prolonged due to the need to address these issues, further complicating the matter.

The court found that the defendants' misconduct and the impact it had on the trial necessitated a deviation from the usual approach to costs. The court held that while the defendants were successful in their defence, their conduct warranted a reduction in their costs recovery. Consequently, the court ordered that the defendants' costs be reduced to 10 per cent in one instance and 75 per cent in another, to be paid on a party/party basis. This decision was made in light of the defendants' serious breaches of duty and the prolongation of the trial caused by their actions.

The court's final orders reflected its decision to apportion costs by issue, reflecting the unique circumstances and the impact of the defendants' conduct on the proceedings.

Orders