Holihan v Amcor Limited - [2011] VSCA 225

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

---

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

---

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.

---

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.
[1]Amcor Ltd v Barnes [2011] VSC 341.
[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’),…

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 Holihan v Amcor Limited

Details

AGLC: Holihan v Amcor Limited [2011] VSCA 225
Case: [2011] VSCA 225
Decision Date: 5 August 2011

CaseChat Overview and Summary

In Holihan v Amcor Limited, the appellant sought leave to appeal against an interlocutory order made by a judge of the Federal Court. The dispute centred on whether the judge had correctly applied the legal standard of proof for fraud and crime exceptions to client legal privilege. The respondent, Amcor Limited, argued that the judge should not have been able to hear and determine the appeal from an associate justice due to a perceived lack of jurisdiction. The appellant sought to challenge the judge's determination of the standard of proof in the context of the fraud and crime exceptions, contending that the incorrect application of the law warranted appellate intervention.

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

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.