JUDGE:	VICKERY J
WHERE HELD:	MELBOURNE
DATES OF HEARING:	21-22 FEBRUARY 2011
DATE OF JUDGMENT:	4 MARCH 2011
CASE MAY BE CITED AS:	HODGSON v AMCOR LTD; AMCOR LTD v BARNES
MEDIUM NEUTRAL CITATION:	[2011] VSC 63

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PRACTICE AND PROCEDURE – Application to strike out pleadings for contumelious disregard of Court orders – Inherent jurisdiction - Delay in bringing the case to trial - Explanation for delay – Prejudice – Non-party discovery – Supreme Court (General Civil Procedure) Rules 2005 r.1.14; r.24.02; r.24.05; r.29.12.1; r.34.01; r.34.02; r.35.07 – Civil Procedure Act 2010 ss.7; 16-27; 47; 51.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff (9420 of 2004)	Mr C Gunst QC and Mr P Booth of counsel	A.J. Macken & Co
For the Defendant (9420 of 2004)	Mr N O’Bryan SC and Ms C Button of counsel	Corrs Chambers Westgarth
For the Plaintiffs (8181 of 2007)	Mr N O’Bryan SC and Ms C Button of counsel	Corrs Chambers Westgarth
The First Defendant (8181 of 2007)	Mr T Barnes appeared in person
The Second–Fourth Defendants (8181 of 2007)	Mr SJ Maiden of counsel	Mills Oakley
The Fifth Defendant (8181 of 2007)	Mr Sangster appeared in person
The Sixth–Seventh Defendants (8181 of 2007)	Mr M Champion of counsel	Mr David Shaw
AJ Macken and Co (a non-party to the proceeding (8181 of 2007)	Ms R Doyle SC and Dr O Bigos of counsel	A.J. Macken and Co.

TABLE OF CONTENTS

INTRODUCTION.............................................................................................................................. 1

The Applications........................................................................................................................... 1
Justice Delayed is Justice Denied............................................................................................... 2
The Course of the Proceedings................................................................................................. 10

Mr Hodgson’s Application to Strike Out Amcor’s Defence and Counterclaim................... 23

Legal Principles........................................................................................................................... 23
Directions and Orders of the Court.......................................................................................... 24
Inherent Power............................................................................................................................ 25
The Directions Power................................................................................................................. 29
Directions as to Witness Statements......................................................................................... 31
Approach to the Exercise of the Discretion to Strike Out for a Contravention of Orders or Directions........................................................................................................................................................ 33
The Orders of the Court (Emerton J)........................................................................................ 39
Mr Hodgson’s Case..................................................................................................................... 40
Amcor’s Excuse........................................................................................................................... 43

Conclusion as to the Strike Out Application.............................................................................. 47

Amcor’s Application for Non-Party Discovery Against Mackens........................................... 49

Legal Principles as to Non-Party Discovery........................................................................... 49
Basis of Amcor’s Application for Non-Party Discovery....................................................... 51
Mackens’ Case in Opposition to Non-Party Discovery........................................................ 52

Mackens Not likely to have Relevant Documents in its Possession.......................................... 52
Amcor Should First Pursue Other Parties for Discovery......................................................... 53
Client Legal Privilege............................................................................................................... 53
Amcor’s Summons is Oppressive............................................................................................. 54

Conclusion as to Non-Party Discovery.................................................................................... 56

Amcor’s Interrogatories................................................................................................................... 56

Directions........................................................................................................................................... 56

Costs.................................................................................................................................................... 56

HIS HONOUR:

INTRODUCTION
The Applications

There are two groups of applications before the Court.

The plaintiff (“Mr Hodgson”) in proceeding 9420 of 2004 (the “Hodgson proceeding”) seeks, by his summons filed 14 January 2011, orders which are essentially to the following effect:

(a)the defence and counterclaim (alternatively only…

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 Hodgson v Amcor Ltd

Details

AGLC: Hodgson v Amcor Ltd [2011] VSC 63
Case: [2011] VSC 63
Decision Date: 4 MARCH 2011

CaseChat Overview and Summary

In Hodgson v Amcor Ltd, the plaintiff sought damages for personal injury sustained at work, alleging that the defendant had breached its duty of care. The case was heard in the Supreme Court of New South Wales. The defendant filed an application to strike out the plaintiff's statement of claim, arguing that the plaintiff had disregarded court orders and shown contumelious disregard for the court process. The defendant also claimed that the delay in bringing the case to trial caused them prejudice and that there was an improper application for non-party discovery.

The court had to decide whether the plaintiff's disregard for the court orders was contumelious, whether the delay in bringing the case to trial caused prejudice to the defendant, and whether the plaintiff's application for non-party discovery was justified. The court examined the circumstances of the delay, the reasons provided by the plaintiff, and the effect of the delay on the defendant. The court also considered the plaintiff's entitlement to non-party discovery and whether it was necessary for the just disposal of the proceedings.

The court found that the plaintiff had not shown contumelious disregard for the court orders, as they had provided a reasonable explanation for the delay and had taken steps to mitigate any prejudice to the defendant. The court also found that the delay did not cause significant prejudice to the defendant, as they had been able to obtain the necessary information and prepare for the trial. The court further found that the plaintiff's application for non-party discovery was justified, as it was necessary for the just disposal of the proceedings. The application to strike out the statement of claim was therefore dismissed.

The court ordered that the plaintiff's statement of claim stand as filed and that the case proceed to trial on the date set by the court. The court also ordered that the plaintiff pay the defendant's costs of the application to strike out, to be taxed on the higher scale if not agreed.

Orders