Cadbury Schweppes Pty Ltd v Amcor Limited - [2009] FCA 442

FEDERAL COURT OF AUSTRALIA
Cadbury Schweppes Pty Ltd v Amcor Limited [2009] FCA 442
CADBURY SCHWEPPES PTY LTD (ACN 004 551 473) v AMCOR LIMITED (ABN 62 000 017 372) and AMCOR PACKAGING (AUSTRALIA) PTY LTD (ABN 55 004 275 165); VISY BOARD PTY LTD (ACN 005 787 913), VISY INDUSTRIES HOLDINGS PTY LTD (ACN 005 787 968) and VISY INDUSTRIES (AUSTRALIA) PTY LTD (ACN 004 337 615)
VID 1377 of 2006
GORDON J
5 MAY 2009
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VID 1377 of 2006

BETWEEN:
CADBURY SCHWEPPES PTY LTD (ACN 004 551 473)
Applicant

AND:
AMCOR LIMITED (ABN 62 000 017 372)
First Respondent

AMCOR PACKAGING (AUSTRALIA) PTY LTD (ABN 55 004 275 165)
Second Respondent

AND BETWEEN:
AMCOR LIMITED (ABN 62 000 017 372)
First Cross Claimant

AMCOR PACKAGING (AUSTRALIA) PTY LTD (ABN 55 004 275 165)
Second Cross Claimant

AND:
VISY BOARD PTY LTD (ACN 005 787 913)
First Cross Respondent

VISY INDUSTRIES HOLDINGS PTY LTD (ACN 005 787 968)
Second Cross Respondent

VISY INDUSTRIES (AUSTRALIA) PTY LTD (ACN 004 337 615)
Third Cross Respondent

JUDGE:

GORDON J

DATE OF ORDER:

5 MAY 2009

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:
1.The Applicant have leave to file and serve an Amended Statement of Claim in the form served on the Respondents on 28 April 2009.
2.At 10:15am on 6 May 2009, the matter be listed for further directions and consequential orders upon the granting of leave.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VID 1377 of 2006

BETWEEN:
CADBURY SCHWEPPES PTY LTD (ACN 004 551 473)
Applicant

AND:
AMCOR LIMITED (ABN 62 000 017 372)
First Respondent

AMCOR PACKAGING (AUSTRALIA) PTY LTD (ABN 55 004 275 165)
Second Respondent

AND BETWEEN:
AMCOR LIMITED (ABN 62 000 017 372)
First Cross Claimant

AMCOR PACKAGING (AUSTRALIA) PTY LTD (ABN 55 004 275 165)
Second Cross Claimant

AND:
VISY BOARD PTY LTD (ACN 005 787 913)
First Cross Respondent

VISY INDUSTRIES HOLDINGS PTY LTD (ACN 005 787 968)
Second Cross Respondent

VISY INDUSTRIES (AUSTRALIA) PTY LTD (ACN 004 337 615)
Third Cross Respondent

JUDGE:

GORDON J

DATE:

5 MAY 2009

PLACE:

MELBOURNE

REASONS FOR JUDGMENT
INTRODUCTION

The Applicant (“Cadbury”) seeks leave to amend its Statement of Claim to file a proposed Amended Statement of Claim in the form of the document served on the Respondents’ solicitors on 28 April 2009 (“the PASOC”). That application is opposed. The respondents (“Amcor”) and the Cross Respondents (“Visy”) submit that I should not grant Cadbury the leave that is sought and that if, contrary to that primary submission, leave is granted, a very considerable adjournment of the trial of the proceedings will be necessary to meet the case as amended.
For the reasons that follow, I would grant Cadbury leave to file the PASOC.
CURRENT PLEADINGS

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.

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Details

Case: [2009] FCA 442
Decision Date: 5 May 2009

CaseChat Overview and Summary

Cadbury Schweppes Pty Ltd, a plaintiff, sought leave to amend its Statement of Claim against Amcor Limited, the defendant, in an action that was before the Federal Court of Australia. The dispute centred around allegations of market sharing arrangements and post-exposure conduct. The court was tasked with deciding whether Cadbury Schweppes should be granted permission to amend its Statement of Claim to include new allegations of post-exposure conduct. The court had to balance the utility of the amendments against the additional work and delay they would cause.

The court considered various factors, including the potential utility of the amendments, the additional work and discovery required, and the delay that would result from allowing the amendments. The court acknowledged that granting leave to amend would necessitate further work and potentially cause a delay, but it also recognised the importance of allowing Cadbury Schweppes to pursue its claims. Ultimately, the court concluded that Cadbury Schweppes should be granted leave to amend its Statement of Claim, despite the additional work and delay, to enable it to proceed with its claims of market sharing arrangements and post-exposure conduct.

The court granted Cadbury Schweppes leave to file an amended Statement of Claim, acknowledging that this would require additional work and potentially cause a delay. The court deferred the commencement of the trial to 22 July 2009 to allow the parties to complete the necessary preparation. The court's decision ensured that Cadbury Schweppes could pursue its claims, while also taking into account the impact of the amendments on the proceedings.

ORDERS:
1. The Applicant have leave to file and serve an Amended Statement of Claim in the form served on the Respondents on 28 April 2009.
2. At 10:15am on 6 May 2009, the matter be listed for further directions and consequential orders upon the granting of leave.

Orders

Orders of the court

1. The Applicant have leave to file and serve an Amended Statement of Claim in the form served on the Respondents on 28 April 2009.

2. At 10:15am on 6 May 2009, the matter be listed for further directions and consequential orders upon the granting of leave.

Note:

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

GORDON J

It would be inappropriate on this application for leave to amend to reach any conclusion about the strength of the arguments each side would seek to make in this regard. It is enough to say that I am not persuaded that the additional matters Cadbury seek to allege are unarguably bad and indeed, I did not understand Amcor, in the end, to make any such submissions. Rather, Amcor submitted that leave should be refused because the nature and extent of the work that permitting the amendment would require, outweighed the possible utility of permitting the amendment. I accept that further work (and, in particular, further discovery) will be required if leave to amend is granted. Having regard to that consideration, as well as the various other matters I have mentioned earlier (including that the delay that will be occasioned by the amendments to take account of the recent provision of the ACCC proofs), I do not consider that I should shut Cadbury out from pursuing this separate way of seeking to demonstrate what was and remains the case which Cadbury has at all times sought to propound – a CFP market sharing arrangement and a PET and Cans market sharing arrangement: see [4] above. Cadbury should be granted leave to make the allegations of post exposure conduct. CONCLUSION As I have said, in granting Cadbury leave to file the PASOC, I am prepared to accept that granting leave will occasion further work. I am not yet persuaded that all of the work identified by Amcor will be necessary or that performance of the necessary work will take as long as 4 to 5 months. This case has long been delayed. There comes a point when a trial of the proceeding must commence. That time has come. In the circumstances, I will defer the commencement of the trial to 22 July 2009 to enable the parties to complete preparation.

Ratio Decidendi

Legal Principle Established

Established by: GORDON J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 1377 of 2006

BETWEEN:	CADBURY SCHWEPPES PTY LTD (ACN 004 551 473) Applicant
AND:	AMCOR LIMITED (ABN 62 000 017 372) First Respondent AMCOR PACKAGING (AUSTRALIA) PTY LTD (ABN 55 004 275 165) Second Respondent
AND BETWEEN:	AMCOR LIMITED (ABN 62 000 017 372) First Cross Claimant AMCOR PACKAGING (AUSTRALIA) PTY LTD (ABN 55 004 275 165) Second Cross Claimant
AND:	VISY BOARD PTY LTD (ACN 005 787 913) First Cross Respondent VISY INDUSTRIES HOLDINGS PTY LTD (ACN 005 787 968) Second Cross Respondent VISY INDUSTRIES (AUSTRALIA) PTY LTD (ACN 004 337 615) Third Cross Respondent

JUDGE:	GORDON J
DATE OF ORDER:	5 MAY 2009
WHERE MADE:	MELBOURNE

JUDGE:	GORDON J
DATE:	5 MAY 2009
PLACE:	MELBOURNE