Amcor v Barnes

[2011] VSC 347

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
PRACTICE COURT

S CI 2007 08181

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

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JUDGE:	KYROU J
WHERE HELD:	Melbourne
DATES OF HEARING:	26 and 27 July 2011
DATE OF RULING:	27 July 2011
CASE MAY BE CITED AS:	Amcor v Barnes
MEDIUM NEUTRAL CITATION:	[2011] VSC 347

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PRACTICE AND PROCEDURE – Application for a stay of inspection of documents held not to be privileged by virtue of s 125 of the Evidence Act 2008 (Vic) – Temporary stay granted.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr J W K Burnside QC with Ms L H Kirwan	Corrs Chambers Westgarth
For the Second to Fourth Defendants	Mr P J Riordan SC with Mr S J Maiden	Mills Oakley Lawyers Pty Ltd
No appearance for the First, Fifth, Sixth or Seventh Defendants

HIS HONOUR:

1. At 4.30pm on 26 July 2007, I published reasons for my decision that the disputed documents in Mr Roe’s Quadpak and Restructure files, which were produced to the Prothonotary pursuant to a subpoena, are not privileged by virtue of s 125 of the Evidence Act 2008.[1] 

   [1]Amcor v Barnes [2001] VSC 341 (26 July 2011).

1. Upon publication of my decision, the plaintiffs applied for an order permitting them to inspect the documents.  I made an order permitting the plaintiffs’ counsel and an instructing solicitor to inspect the documents overnight subject to the giving of confidentiality undertakings.  This morning, the documents have been returned to my Associate.  No copies of the documents have been made. 

1. The second, third and fourth defendants (‘Holihan Defendants’) have sought a stay of any order for further inspection of the documents by the plaintiffs in order to enable the Holihan Defendants to seek leave from the Court of Appeal to appeal against my decision and to seek a stay from that Court. 

1. For the reasons that follow, I will grant a conditional stay to 4.00pm on 29 July 2011. 

1. As my decision is an interlocutory decision, leave to appeal is required.  The Holihan Defendants will have to persuade the Court of Appeal that my decision is attended with sufficient doubt and that they will suffer substantial injustice if it is allowed to stand.  The Victorian authorities suggest that, in relation to the proposed stay, the Holihan Defendants will need to demonstrate that there are exceptional or special circumstances warranting a stay.  They will also need to persuade the Court of Appeal that it is appropriate to fragment the trial process. 

1. The only consequence of my decision is that the plaintiffs will have access to the documents.  By operation of law, that access will be for the limited purpose of use of the documents in the proceeding.  The plaintiffs have informed me that, if they have access to the documents today, they will immediately apply to Vickery J for leave to re‑open their case to enable them to put the documents in evidence.  It will be for his Honour to rule on such an application. 

1. If the Holihan Defendants ultimately succeed on the substantive issues at trial, the documents will be returned to Mr Roe and no further use will be made of them by the plaintiffs.  If the Holihan Defendants are unsuccessful on the substantive issues and appeal to the Court of Appeal, any alleged error relating to the admission of the documents as evidence at the trial can be dealt with in that appeal.  The Court of Appeal could then determine that, contrary to my decision, the documents were privileged. 

1. If the Court of Appeal grants leave to appeal against my decision, it is unlikely to hear the appeal before Vickery J publishes his judgment on the substantive issues.  Any appeal from my decision is likely to be heard concurrently with any appeal from Vickery J’s substantive decision by the unsuccessful parties at trial. 

1. The critical issue in relation to the Holihan Defendants’ application for a stay is which party will suffer greater prejudice depending on whether or not a stay is granted. 

1. The parties have informed me that all of the defendants, other than the Holihan Defendants, have completed their final addresses at trial and that the Holihan Defendants are due to complete their final addresses this morning.  The plaintiffs will then make their final addresses.  All addresses are scheduled to be completed by 2 August 2011. 

1. The plaintiffs require access to the documents in order to be in a position to apply to Vickery J for leave to re-open their case to use the documents in evidence.  Unless his Honour is persuaded to alter the timetable for the completion of the trial, the plaintiffs will be irreversibly prejudiced if they do not have immediate access to the documents.  This is because the opportunity to re-open their case will be lost at the latest on 2 August 2011, after which time Vickery J will make his substantive decision on the basis of the evidence then before his Honour.  If the plaintiffs fail on the substantive issues before Vickery J, they will not be able to allege that his Honour erred in relation to the non‑use of the documents.  In a real sense, a stay would deprive the plaintiffs of the fruits of their victory before me. 

1. On the other hand, for the reasons I have already explained, if the timetable for the completion of the trial is maintained, the Holihan Defendants will not be irreversibly prejudiced if the plaintiffs have access to the documents and seek to use them at trial.  Any appeal by them would not be rendered nugatory. 

1. It follows that, if the current timetable for the trial is maintained, the factors against the granting of a stay overwhelmingly outweigh the factors favouring the granting of a stay. 

1. The position will alter if Vickery J is prepared to adjourn the completion of final addresses and to agree to extend the time for the plaintiffs to make an application to re‑open their case until after the Court of Appeal hears the Holihan Defendants’ application for leave to appeal against my decision and for a stay of my decision. 

1. It is likely that the earliest time at which the Court of Appeal can hear the Holihan Defendants’ proposed application for leave to appeal and the proposed stay will be Friday, 29 July 2011. 

1. In all the circumstances, I will order that any inspection of the documents by the plaintiffs be stayed until 4.00pm on Friday, 29 July 2011.  This order will be subject to alteration in the event that Justice Vickery refuses to extend the time for the plaintiffs to make an application to re-open the case until after the Court of Appeal hears the Holihan Defendants’ application for leave to appeal against my decision and for a stay of my decision.  In that event, the plaintiffs will have liberty to apply to me for an order vacating the stay. 

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