Hodgson v Amcor Limited
[2006] VSC 151
•4 April 2006
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
PRACTICE COURT
No. 9420 of 2004
| JAMES GEORGE HODGSON | Plaintiff |
| v | |
| AMCOR LIMITED (ACN 000 017 372) | Defendant |
---
JUDGE: | HARPER J | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 3 AND 4 APRIL 2006 | |
DATE OF JUDGMENT: | 4 APRIL 2006 | |
CASE MAY BE CITED AS: | HODGSON v AMCOR LTD | |
MEDIUM NEUTRAL CITATION: | [2006] VSC 151 | |
---
CONFIDENTIAL INFORMATION – Application by the defendant for leave to disclose to its group general counsel information the subject of confidentiality undertakings to the Federal Court of Australia – Whether the grant of such leave would impinge upon the orders of the Federal Court – Intention of the Federal Court not to restrict the defendant in the conduct of its defence – Application granted.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C. Gunst QC with Mr C. O'Grady | A.J. Macken & Co. |
| For the Defendants | Mr A. Archibald QC with Mr E. Heerey | Allens Arthur Robinson |
HIS HONOUR:
I have before me a summons dated 10 March 2006, issued on behalf of the defendant. This proceeding is one that forms part of wider litigation that has been before the Federal Court, as well as being before this Court in the present proceeding. The Federal Court action was settled by mediation. This proceeding continues.
By reason of the area of dispute between the parties, various questions - including a number of issues concerning confidentiality - arose. As a consequence, certain undertakings were given to the Federal Court. In orders made by Merkel J in that Court on 16 December 2005 they are referred to as, respectively, the "Vickery Undertaking" and the "CHH Undertaking".
As I understand the position, by those undertakings - which were given by the present defendant, and perhaps others - disclosure of any document or information that is subject to the undertaking is to be limited to (a) the Federal Court in the proceeding in that Court now concluded, (b) this Court in the present proceeding, (c) the solicitors and counsel acting for the defendant, and (d) the solicitors and counsel acting for the plaintiff.
Given that restriction, the defendant now seeks, by the summons to which I earlier referred, orders that its legal advisors have leave to disclose a number of matters to the defendant's group general counsel, Ms Julie McPherson. The first of these is a draft amended defence and counterclaim, which is exhibited to an affidavit affirmed by Thomas Matthew Reid on 10 March 2006. That is exhibit “TMR 1” to Mr Reid's affidavit.
The summons also seeks an order that the defendant's solicitors and counsel have leave to disclose to Ms McPherson such of the documents described in Annexure "A" and confidential Annexure "B" to the draft amended defence and counterclaim as are in the possession of those solicitors.
Finally, in this paragraph of the summons (paragraph 1), the defendant seeks orders that any information derived from any of the above documents be disclosed to Ms McPherson.
The plaintiff has sought to persuade me that this application, to the extent that I have presently described it, should be dismissed. It is, the plaintiff contends, either unnecessary or is one to which I, sitting in this proceeding in the Supreme Court of Victoria, cannot accede - because to do so would impinge upon the orders made by, or undertakings given to, the Federal Court.
I, of course, accept that this Court does not have power to vary or otherwise affect orders made by or undertakings given to the Federal Court. It seems to me, however, that - given the terms of the orders of Merkel J made on 16 December last year to which I earlier referred - it is appropriate that this application be allowed. Those orders, by paragraphs 3 and 4, specifically provide for the relevant restriction to apply until such time as this Court makes an order that is inconsistent with that restriction or those restrictions.
Counsel for the plaintiff has directed my attention to paragraph 2 of the orders of 16 December 2005. By that paragraph, the Federal Court gave the present defendant permission to use certain information and disclose that information for the purposes only of, amongst other things, making any applications. It was submitted by counsel for the plaintiff that paragraphs 3 and 4 of the orders of 16 December should be read in the light of paragraph 2, and that the present summons did not amount to an application for use of the relevant information.
I do not accept those submissions. In my opinion, the object of the orders made on 16 December was to confine appropriately the use of the information to which the orders refer, but to do so without restricting the defendant in its conduct of its defence in this proceeding in a way which would not have been open to it had this proceeding been brought by the plaintiff as a cross claim in the Federal Court. As I read the transcript of the proceedings before Merkel J in the Federal Court on 9 December 2005, and, in particular, a passage at page 52 of that transcript, his Honour was minded to ensure that the plaintiff should not enjoy any advantage whatsoever from taking the course he did; namely, of issuing in the Supreme Court rather than in the Federal Court. I refer particularly to lines 27 and 28 of page 52 of my copy of the transcript of 9 December last year, that transcript being Exhibit “JN 13” to an affidavit of Jonathan Nume sworn or affirmed on 30 March this year.
His Honour's position being thus articulated, it seems to me that the present application made by paragraph 1 of the summons of 10 March 2006 is one which is properly before the Court, and one which seeks relief that in the circumstances would not involve this court doing anything that might be said to be in conflict with orders previously made in the Federal Court.
The application was criticised by the plaintiff, in part upon the basis that the practitioners acting for the defendant had prepared a pleading without appropriate instructions. I do not share that concern. I accept the statement made to me from the Bar Table by senior counsel for the defendant that the draft amended defence and counterclaim the subject of this application, was prepared on instructions from the defendant, but that those instructions were insufficient to enable the document to be put forward finally in its present form as representing the informed position of the defendant after an appropriate interchange between the defendant through its appropriate employees and the defendant's legal advisors.
I accept that, in order for that interchange to be completed, instructions should be obtained directed to particular aspects of the proposed amended defence and counterclaim, those instructions most appropriately coming from Ms McPherson. The present document is a draft merely. It is not put forward as the document upon which the defendant presently seeks to rely, albeit that, as I understand it, the defendant's legal advisors presently anticipate that no significant changes will be made to it following consultations which will take place if the application succeeds.
In those circumstances, it seems to me to be premature to criticise the document as one which makes serious allegations against the plaintiff without appropriate instructions having been given. In the first place, as I say, I accept the statement made by senior counsel for the defendant that instructions up to a certain point have been received by the defendant's legal advisers but in any event, final instructions will be received following consultation with Ms McPherson and only then will it be appropriate to examine the document with a view to deciding whether or not it is open to the criticism directed at it by senior counsel for the plaintiff.
Other submissions were put before me both this morning and yesterday during the course of the hearing on the present summons; but I think I have dealt in what I have already said with the substance of the issues which require resolution. In my opinion it is appropriate that the defendant's solicitors have leave to disclose to Ms McPherson the matters, documents and information referred to in paragraph 1 of the summons of 10 March 2006. I propose to give such leave.
Paragraph 2 of the summons seeks an order that, without further order, any disclosure pursuant to paragraph 1 of any document or information that is subject to the CHH undertaking or the Vickery undertaking be limited in ways which are there set out. There has been no attack upon paragraph 2 of the summons as I understand it and accordingly, I propose to restrict the disclosure to that which paragraph 2 allows.
Paragraph 3 of the summons seeks leave to file and serve any amended defence and counterclaim within 14 days after the date of these orders. That application is opposed. Given the time I have available within which to consider the opposition, it seems to me that I cannot presently deal with that aspect of the relief sought by the defendant. I also am conscious of the fact that courts will refrain from granting leave to amend where the amendment will either serve no purpose or is in some way or another contrary to the rules of pleading. I am in no position to make any judgment about those matters and would not be in any position to make such judgment without more argument than the time presently available allows. For those reasons, I do not propose to grant at present the leave sought by paragraph 3 of the summons but to adjourn that application to some further date.
By paragraph 4 of the summons, the defendant seeks that the court take steps to maintain the confidentiality of certain documents. That paragraph was not the subject of argument before me and I see no reason why orders in the form sought should not be made.
Accordingly, I will grant so much of the relief as is sought by the defendant in paragraphs 1, 2 and 4 of its summons of 10 March. I will adjourn to a date to be fixed the application for leave to file and serve any amended defence and counterclaim.
---
0
0
0