Amcor v Barnes - [2007] VSC 515

From

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 8181 of 2007

AMCOR AND ANOTHER	Plaintiffs
v
BARNES AND OTHERS	Defendants

JUDGE:	OSBORN J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	22 and 23 OCTOBER 2007
DATE OF JUDGMENT:	11 DECEMBER 2007
CASE MAY BE CITED AS:	AMCOR v BARNES & ORS
MEDIUM NEUTRAL CITATION:	[2007] VSC 515

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Application by defendants to transfer proceedings to the Supreme Court of NSW – pre-existing proceedings in this court in which the first plaintiff is a defendant – both proceedings concerned with common transactions in part – allegations made in this proceeding of involvement by the defendants in wrongful actions of the plaintiff in the pre-existing proceeding – real relationship between the issues and facts in both proceedings – consequences thereof – substantial connection between NSW and the subject matter of this proceeding – real prospect of consequential loss to defendant if this proceeding not transferred to NSW – requirement of usual undertaking as to damages by plaintiffs if proceeding not transferred – s.5(2) Jurisdiction of Courts (Cross Vesting) Act 1987

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr J. Elliot SC with Ms R. Enbom	Corrs Chambers Westgarth Lawyers
For the First Defendant	Mr A. Rodbard-Bean	Kirby & Co Solicitors
For the Second, Third and Fourth Defendants	Mr P. Riordan SC	Mills Oakley Lawyers
For the defendant and plaintiffs by counterclaim in proceeding 9420 of 2004	Mr P. Solomon	Allens Arthur Robinson Lawyers
For the plaintiffs and defendant by counterclaim in proceeding 9420 of 2004	Mr C. Gunst QC	A.J. Macken & Co. Lawyers

HIS HONOUR:

This proceeding (the ”Amcor proceeding”) arises out of a dispute between the first plaintiff (“Amcor”) and persons previously employed by it in a managerial capacity (together with corporate entities involved in relevant dealings).

When the matter came before me in the Practice Court on 22 and 23 October 2007, I referred to mediation both this proceeding and what were asserted to be related proceedings. In the event, mediation has proved unsuccessful and it is necessary to determine a series of procedural questions.

By summons dated 3 September 2007, the plaintiffs seek an order that the Amcor proceeding and proceeding 9420 of 2004 (the “Hodgson proceeding”) be heard together and that the evidence and discovery in each proceeding be evidence and discovery in the other proceeding.

By summons dated 26 October 2007, the second, third and fourth defendants in this proceeding seek an order pursuant to s.5(2) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (“the Cross-Vesting Act”) that the Amcor proceeding be transferred to New South Wales.

By summons dated 8 October 2007, the first defendant seeks a like order that the Amcor proceeding be transferred to New South Wales.

The Cross-Vesting Legislation

Section 5 sub-section (2) of the Cross-Vesting Act provides:

Where –
(a)a proceeding (in this subsection referred to as the 'relevant proceeding') is pending in the Supreme Court (in this subsection referred to as the 'first…

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 v Barnes

Details

AGLC: Amcor v Barnes [2007] VSC 515
Case: [2007] VSC 515
Decision Date: 11 December 2007

CaseChat Overview and Summary

In the matter of Amcor versus Barnes, the defendants sought to transfer the proceedings from the Federal Circuit Court to the Supreme Court of New South Wales. The dispute centres on allegations involving common transactions between the parties, with the defendants asserting involvement in wrongful actions by the plaintiffs in a separate proceeding already before the court. The nature of the dispute is complex, with overlapping issues and facts between the two proceedings, leading to a need for judicial consideration on whether the case should be heard in the same jurisdiction.

The central legal issues before the court involved determining whether the existing proceedings had a real relationship with the facts and issues in the separate proceeding, and if there was a substantial connection between New South Wales and the subject matter of this case. The court also had to consider whether there was a real prospect of consequential loss to the defendants if the proceedings were not transferred, and whether the plaintiffs should be required to provide the usual undertaking as to damages if the proceeding were not transferred. These issues were critical in deciding whether the transfer was appropriate under section 5(2) of the Jurisdiction of Courts (Cross Vesting) Act 1987.

The court carefully examined the interrelationship between the two sets of proceedings, noting the significant overlap in transactions and the parties' involvement. It concluded that the real relationship between the issues and facts in both proceedings warranted a transfer. Furthermore, the court found that there was a substantial connection between New South Wales and the subject matter, and that the defendants had a real prospect of consequential loss if the case remained in the Federal Circuit Court. The court also required the plaintiffs to provide an undertaking as to damages if the proceeding were not transferred, as mandated by the Act. Consequently, the court granted the application for the transfer of the proceedings to the Supreme Court of New South Wales.

Orders