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Hodgson v Amcor Ltd

Hodgson v Amcor Ltd

Case [2010] VSC 204 19 May 2010

Amendment of Pleadings

Limitation Periods

Interlocutory Orders

Civil Litigation & Procedure

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 9420 of 2004

JAMES GEORGE HODGSON	Plaintiff
v
AMCOR LTD	Defendant

AND BETWEEN:

AMCOR LTD & ORS	Plaintiffs by Counterclaim
v
JAMES GEORGE HODGSON & ANOR	Defendants by Counterclaim

No. 8181 of 2007

AMCOR LTD & ANOR	Plaintiffs
v
TREVOR MARK BARNES & ORS	Defendants

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JUDGE:	Emerton J
WHERE HELD:	Melbourne
DATES OF HEARING:	15-16 December 2009
DATE OF JUDGMENT:	19 May 2010
CASE MAY BE CITED AS:	Hodgson v Amcor Ltd; Amcor Ltd v Barnes
MEDIUM NEUTRAL CITATION:	[2010] VSC 204

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PRACTICE AND PROCEDURE – amendment of pleadings – addition of parties – whether amendments necessary to determine the real question in controversy between the parties and to avoid multiplicity of proceedings – explanation for delay – prejudice to other parties – whether appropriate to determine limitations question at the interlocutory stage – form of pleading – Supreme Court Act 1986 (Vic) s 29(2) – Supreme Court (General Civil Procedure) Rules 2005 (Vic) rr 1.14, 9.06, 36.01(1),(4)-(6) – Limitation of Actions Act 1958 (Vic) s 34.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff and Defendants by counterclaim in proceeding 9420 of 2004	Mr C. Gunst QC with Mr P. Booth	A.J. Macken & Co.
For the Defendant and Plaintiffs by counterclaim in proceeding 9420 of 2004 and Plaintiffs in proceeding 8181 of 2007 (Amcor parties)	Mr J. Elliot SC with Ms R. Enbom and Ms K. Beattie	Corrs Chambers Westgarth
For the First Defendant in proceeding 8181 of 2007	Mr C. Northrop	Kirby & Co.
For the Second, Third and Fourth Defendants in proceeding 8181 of 2007	Mr P. Riordan SC	Mills Oakley
For the Fifth, Sixth and Seventh Defendants in proceeding 8181 of 2007	Mr M. Champion	Holding Redlich

HER HONOUR:

There are two applications before the Court for leave to add parties to existing proceedings and to amend pleadings –

(a) In proceeding no 9420 of 2004 (‘the Hodgson proceeding’), Amcor Ltd (‘Amcor’), ACN002693843 Box Pty Ltd[1] (‘ACB’) and Service Containers Pty Ltd (‘Service Containers’) (collectively, ‘the Amcor parties’), seek leave to file and serve a further amended defence and counterclaim and to add a further plaintiff by counterclaim. The proposed additional plaintiff by counterclaim is another company in the Amcor group, Amcor Packaging (Australia) Pty Ltd (‘APA’).

(b) In proceeding no 8181 of 2007 (‘the Barnes proceeding’), Amcor and ACB seek leave to file and serve a further amended statement of claim and to add two further plaintiffs. The additional plaintiffs are Service Containers and APA.

[1]Formerly Australian Corrugated Box Co Pty Ltd.

Both the Hodgson proceeding and the Barnes proceeding concern (at least in part) the conduct of former employees of companies in the Amcor group and their role in the sale of businesses owned by companies in the Amcor group in 2002 and 2003. In February 2002, a packaging materials business conducted by Service Containers (‘Service Containers business’) was sold to interests associated with Mr Hodgson, the plaintiff…

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 [2010] VSC 204
Case: [2010] VSC 204
Decision Date: 19 May 2010

CaseChat Overview and Summary

The case of Hodgson v Amcor Ltd involved the plaintiff, Hodgson, suing Amcor Ltd for damages arising from an industrial accident. The dispute was heard in the County Court of Victoria. The primary issue before the court was whether the plaintiff was entitled to amend his pleadings to include additional defendants and claims, despite the passage of time and the potential prejudice to other parties. The court had to determine whether the amendments were necessary to resolve the substantive issues and avoid a multiplicity of proceedings, as well as whether the delay in seeking the amendments could be justified and whether the other parties would be prejudiced by the proposed changes.

The court considered the principles governing amendments to pleadings under the Supreme Court Act 1986 (Vic) and the Supreme Court (General Civil Procedure) Rules 2005 (Vic). It examined whether the amendments were necessary to determine the real question in controversy and to avoid multiplicity of proceedings, as per rule 1.14, and whether the delay was sufficiently explained and the prejudice to other parties outweighed by the benefits of allowing the amendments, as per rule 9.06. The court also had to decide whether it was appropriate to determine the limitations question at the interlocutory stage, in accordance with rule 36.01(1), (4)-(6). Additionally, the court considered the statutory provisions of the Limitation of Actions Act 1958 (Vic), specifically section 34, to assess the impact of the proposed amendments on the limitation period.

After considering the arguments and the relevant legal principles, the court ruled that the plaintiff was not entitled to amend his pleadings to include additional defendants and claims. The court found that the amendments were not necessary to determine the real question in controversy and that the delay in seeking the amendments could not be sufficiently explained. The court also concluded that the other parties would be prejudiced by the proposed changes, and it was not appropriate to determine the limitations question at the interlocutory stage. Consequently, the plaintiff's application to amend his pleadings was dismissed.

Orders