SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2011 0111
| CRAIG ANTHONY HOLIHAN | First Applicant |
| and | |
| ACB AUSTRALIA PTY LTD (ACN 104 489 670) | Second Applicant |
| and | |
| AUSTRALIAN CORRUGATED BOX CO PTY LTD (formerly ACHILLA PTY LTD (ACN 104 489 581) | Third applicant |
| v | |
| AMCOR LIMITED (ACN 000 017 372) | First Respondent |
| and | |
| ACN002693843 (ACN 002 693 843) | Second Respondent |
| and | |
| AMCOR PACKAGING (AUSTRALIA) PTY LTD (ACN 004 275 165) | Third Respondent |
| and | |
| SPECIALTY PACKAGING GROUP PTY LTD (formerly SERVICE CONTAINERS PTY LTD) (ACN 005 319 666) | Fourth Respondent |
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| JUDGES | WARREN CJ, BUCHANAN and TATE JJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 29 July 2011 |
| DATE OF ORDERS | 29 July 2011 |
| REASONS FOR JUDGMENT | 5 August 2011 |
| MEDIUM NEUTRAL CITATION | [2011] VSCA 225 |
| JUDGMENT APPEALED FROM | Amcor Ltd v Barnes [2011] VSC 341 |
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APPEAL – Procedure – Leave to appeal – Interlocutory order – Whether judge erred in applying wrong standard of proof in relation to fraud/crime exception to client legal privilege – Whether judge had jurisdiction to hear and determine appeal from associate justice – Granting leave would discourage trial judges from referring out questions in appropriate cases – Fragmentation of the trial was undesirable – Evidence Act 2008, s 125 – Application refused.
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| Appearances: | Counsel | Solicitors |
| For the Applicants | Mr P J Riordan SC with Mr S J Maiden | Mills Oakley Lawyers |
| For the Respondents | Mr J W K Burnside QC with Ms L H Kirwan | Corrs Chambers Westgarth |
WARREN CJ:
I have had the benefit of reading the draft judgment of Tate JA and agree with her Honour’s reasons.
BUCHANAN JA:
I agree with Tate JA.
TATE JA:
On 26 and 27 July 2011 Kyrou J declared, inter alia, that certain documents were not privileged, by virtue of the fraud/crime exception under s 125 of the Evidence Act 2008 (‘the Act’).[1] As the orders made were interlocutory, leave was required before an appeal could be heard.[2] On 29 July 2011, this Court heard the application for leave to appeal against the orders made by Kyrou J. At the end of the hearing, the Court pronounced orders refusing leave to appeal, with costs, and indicated that its reasons would be published as soon as practicable.
[2]Supreme Court Act 1986, s 17A(4)(b).
The documents in issue had been produced by Mr David Roe, in response to a subpoena. Mr Roe is the former solicitor to Craig Anthony Holihan, ACB Australia Pty Ltd (ACN 104 489 670), and Australian Corrugated Box Co Pty Ltd (formerly Achilla Pty Ltd) (ACN 104 489 581), who are the applicants in this proceeding. The applicants are the second, third and fourth defendants in a trial brought by Amcor Limited (ACN 000 017 372), ACN002693843 Box Pty Ltd (ACN 002 693 843), Amcor Packaging (Australia) Pty Ltd (ACN 004 275 165) and Speciality Packaging Group Pty Ltd (formerly Service Containers Pty Ltd) (ACN 005 319 666) (‘the Amcor parties’),…
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- AGLC
- Holihan v Amcor Limited [2011] VSCA 225
- Case
- [2011] VSCA 225
- Decision Date
CaseChat Overview and Summary
The court was required to determine two key legal issues. The first was whether the judge had erred in applying the wrong standard of proof in relation to the fraud and crime exceptions to client legal privilege. The second issue was whether the judge had jurisdiction to hear and determine the appeal from an associate justice. The court examined the relevant provisions of the Evidence Act 2008, specifically section 125, to assess the standard of proof and the jurisdictional framework for appeals from associate justices.
The court found that the judge had not erred in applying the standard of proof for the fraud and crime exceptions to client legal privilege. Furthermore, the court held that it had jurisdiction to hear and determine the appeal from an associate justice, as the referral was appropriate and in accordance with the law. The court concluded that granting leave to appeal would discourage trial judges from referring out questions in suitable cases, and that such fragmentation of the trial was undesirable. Consequently, the application for leave to appeal was refused.
The court's refusal of leave to appeal resulted in the maintenance of the interlocutory order, upholding the judge's application of the legal standard of proof and jurisdiction in the matter. The court's decision ensures that the integrity of the trial process is preserved and that appropriate referrals for specialised legal determinations are not discouraged.
Orders
Orders of the court
Application refused.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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