Amcor Ltd & Ors v Barnes & Ors

For the Plaintiffs by Counterclaim/Defendants to Cross-Claim

Reasons for decision delivered on 28 November 2016

1 The Court heard the trial of both the Holihan parties' counterclaim and the Amcor parties' cross-claim in the 'Barnes proceeding' on various dates between 25 May and 15 September 2015, and delivered its reasons for decision on 28 November 2016: Amcor Ltd & Ors v Barnes & Ors [2016] VSC 707 ('Reasons').

2 Relevantly, for present purposes, the Court found that when the reciprocal purchase and supply obligations established by clause 12 of the Second Sale Agreement are viewed in the context of the whole agreement and the surrounding circumstances, the obligations imposed on the relevant Amcor parties (being ACN002693843 Box Pty Ltd ('ACB Co Vendor') prior to entry into the Deed of Accession and Amcor Packaging (Australia) Pty Ltd ('APA') following entry into the Deed of Accession) under clause 12.2 to obtain 'all its OME supplies' from the first plaintiff by counterclaim ('Achilla') (one of the Holihan parties) were essentially as follows:[2]

(a) On its proper construction, the purchase obligation imposed on ACB Co Vendor under clause 12.2 is to be construed as an obligation on the part of ACB Co Vendor to continue to provide to Achilla after the sale, effectively all of the same sort of work that the ACB Business had been doing prior to the sale, save in circumstances where the exception was enlivened. That is, notwithstanding the sale, the ACB Business (under new ownership) would effectively continue on the same basis as before (i.e., when conducted by ACB Co Vendor). Thus, in the ordinary course, customers' work that was entered in the PICK system with a master denoting the ACB Business would be routed to Achilla notwithstanding the change in ownership. Similarly, in the case of new jobs that involved work of the kind that was performed by the ACB Business prior to the sale, in the ordinary course, a quote would be generated using the PICK system, and work would be routed to Achilla unless the exception was enlivened. In this way, Achilla would continue to perform the work that historically had been undertaken by the ACB Business, and essentially on the same basis as before, including that its supplies of raw material would continue to be sourced from the AFP businesses conducted at the Smithfield and Revesby sites in New South Wales.

(b) As to whether Amcor Displays' work was captured within the clause 12.2 purchase obligation, on the evidence, it seems clear that while the ACB Business was doing some work for Amcor Displays prior to the sale, it was not doing all or even a significant proportion of the Amcor Displays' work. The evidence suggests that a small component of the Amcor Displays' work was being performed by the ACB Business notwithstanding the arrangement then in place with ACE Print, and that it was being recorded separately from the other work performed for the businesses conducted by AFP at its Smithfield and Revesby sites. In the period prior to the Deed of Accession being entered into, as a general proposition, the Amcor Displays' work was not encompassed within the scope of clause 12.2. However, given that I have found that on a 'business as usual' construction of the clause 12.2 obligation, Achilla would likely have received some small amount of Amcor Displays' work of the kind that the ACB Business had been doing for it prior to the sale (save for circumstances where the relevant exception was enlivened), clause 12.2 entitled Achilla or the ACB Business to continue receive a small amount of the same sort of Amcor Displays' work.

(c) In the period following execution of the Deed of Accession, the scope of clause 12.2 remained unchanged from the position described above. That is, the substitution of APA as 'Vendor' in place of ACB Co Vendor did not relevantly enlarge the scope of the clause 12.2 purchase obligation.

3 Against that background, the general position as found by the Court was that Achilla is entitled to be compensated by APA for each job that should have been provided to the ACB Business on a 'business as usual basis' for the period from 27 September 2005[3] to 31 July 2008 ('Claim Period'), save for work that fell within the carve out or exception to that obligation in clause 12.2.[4]

4 Since delivering its Reasons, the Court has conducted a host of directions hearings, heard several contested applications and delivered three separate rulings addressing additional matters raised by the parties in relation to the damages or compensation to be awarded to Achilla. That process has involved the making of a reference to a special referee and the preparation of a report by him, and the giving of further instructions to the accounting experts who gave evidence at the trial for the preparation of several further joint reports by them.

5 On 2 February 2018, the Court delivered a ruling concerning two competing applications before the Court for determination:

(a) the first being the Holihan parties' application seeking to have the Court refer the matter to a special referee, Mr Ronald Mines, for him to undertake the reference as to whether Achilla is entitled to compensation in relation to each of the 'Disputed Jobs'; and

(b) the second being the Amcor parties' application for the Court to make an order recording its answers to each of the questions posed in the statement of issues (6 key issues and 20 specific issues) that were addressed in the Reasons and order that the further hearing or determination of the counterclaim (and cross-claim) be stayed until further order.

6 The Court determined that the preferable course was to proceed with the reference to the special referee rather than by making orders formally answering the questions raised in the statement of issues (Amcor Ltd & Ors v Barnes & Ors (Ruling No 1)).[5]

7 Following the delivery of Ruling No 1, the Court made orders on 6 February 2018 dismissing the Amcor parties' amended summons and appointing Mr Ronald Mines as special referee pursuant to Order 50 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) ('Rules'). Those orders provided for the reference to be undertaken by Mr Mines in a staged process, essentially because the Holihan parties had identified three additional legal questions that both parties agreed must be determined by the Court before Mr Mines could complete the reference. Mr Mines was also specifically directed not to determine (what was described as) the 'Amcor Displays Objection'.[6] To that end, in Annexure A to the 6 February 2018 orders, Mr Mines was instructed that:[7]

Where the Claim Documents show that the Amcor Parties rely upon the Amcor Displays Objection for a particular job, your task in considering that job is to determine whether Achilla would have received the Disputed Job on a "business as usual" basis, having regard to any objections made by the Amcor Parties other than the Amcor Displays Objection.

8 On 29 March 2018, the Court delivered a further ruling addressing the three legal questions that had been raised by the Holihan parties for determination by the Court, namely:

(a) Whether the Holihan parties have discharged their burden of proof in respect of jobs for which invoices and purchase orders are missing or illegible.

(b) Whether the Amcor parties are entitled to rely on the carve-out in relation to any work other than 'repeat order' work.

(c) Whether the Amcor parties are entitled to raise any issues with respect to 'partitions' jobs.

(Amcor Ltd & Ors v Barnes & Ors (Ruling No 2)).[8]

9 At the end of Ruling No 2, the Court noted that both the Holihan parties and the Amcor parties had informed the Court that, in light of the Court's finding that on a 'business as usual' construction Achilla would likely have continued to receive some small amount of Amcor Displays' work of the kind that the ACB Business had been doing for it prior to the sale, it was likely the 'Amcor Displays jobs' would raise considerations additional to those that apply to the remainder of the jobs. However, as both parties were in general agreement as to the way forward, the Court indicated that if, following consideration of the Special Referee's report, either party wished to seek to seek leave to re-open, a formal application should be made, supported by appropriate material.

The Mines Report was delivered on 12 November 2008

10 On 12 November 2018, Mr Mines delivered his report to the Court, comprised of a 'reference overview' and a schedule setting out his determination, on a job by job basis, as to whether Achilla is entitled to damages for each job ('Mines Report'). In his reference overview, Mr Mines outlined the approach he had followed to reach his findings in respect of each disputed invoice, stating:[9]

. . .

As directed, I have reviewed these invoices based upon arguments put by the parties in columns I, J and K of the (Revised) Claim Documents.

In all of the above cases, I have applied logic based on my extensive knowledge of the corrugated box industry, as well as knowledge gained within the several industry businesses that I have either been employed by, or have supplied contract work to.

The above logic and knowledge encompasses the type of manufacturing industry/processes available to Achilla, as described in Sections 17e and 18 of [the 6 February 2018 orders] and the evidence of the various suppliers regarding their processes and capabilities.

I was able with a fair degree of accuracy, to determine whether Achilla had the capability to perform specific work but I was unable to determine whether they had the capacity, at any particular time, to perform the work.

I based my assessment on their capability only.

. . .

11 Following delivery of the Mines Report, both the Holihan parties and the Amcor parties indicated that they were generally content with the way that the Special Referee has gone about performing the tasks that were allocated to him.

12 On 7 December 2018, orders were made, by consent, for the parties to file written submissions addressing four topics:

(a) the adoption or otherwise of the Mines Report (or part(s) thereof);

(c) any application made to re-open and adduce further evidence in relation to Amcor Displays; and

(d) the procedural steps to follow the adoption or otherwise of the Mines Report.

13 Pursuant to those orders, the Holihan parties and the Amcor parties each filed an outline of submissions, a summons and an affidavit in support. They sought leave to re-open their respective cases, to adduce further evidence relevant to the Amcor Displays Objection and to make submissions.

14 The matter was listed for hearing on 8 February 2019. On that day, as the time available permitted the Court to hear argument directed to the Amcor Displays issues only, the Court noted that it would be necessary to re-schedule a further hearing to deal with the other two outstanding issues.

15 On 14 June 2019, the Court delivered its reasons for the ruling in relation to the Amcor Displays Objection (Amcor Limited & Ors v Barnes & Ors (Ruling No 3)[10]) and listed the matter for further directions as to the adoption or otherwise of the Mines Report and the further procedural steps required in order to progress the proceeding.

16 In Ruling No 3, the Court found, among other things, that in the final year before entry into the Second Sale Agreement, the ACB Business performed OME work for Amcor Displays to the value of $172,097.83.[11]

17 In relation to jobs the subject of the Amcor Displays Objection, the Court found, in effect, that Achilla is to be compensated for the 'business as usual' Amcor Displays work that it did not receive during the Claim Period. The Court also found that such compensation:[12]

(a) is to be measured on the basis that Achilla would have received $172,097.83 (excluding GST) per annum in respect of Amcor Displays Jobs for the Claim Period;

(b) is to be pro-rated for the 2005/06 financial year and the month of July 2008; and

(c) is to take into account the value of Amcor Displays OME work that Achilla did receive during the Claim Period (being $49,423.04 including GST).

18 A directions hearing was held on 26 June 2019 to consider the form of order to be made following delivery of the ruling. The directions hearing was then adjourned to 28 June 2019 so as to permit the parties to consult and bring forward a minute of proposed consent orders. (In the event that orders could not be made on the papers the directions hearing would proceed on 28 June 2019.)

19 Following completion of the Special Referee process and delivery of the Mines Report, the parties contested Mr Mines' findings in respect of a subset of the Disputed Jobs he reviewed. That subset is referred to as 'Contested Jobs' in the relevant orders made by the Court. At the directions hearing on 28 June 2019, counsel for the respective parties informed the Court that:

(a) the parties, acting in accordance with their respective obligations under the Civil Procedure Act 2010 (Vic) ('Civil Procedure Act'), had reached an agreement (referred to in order 2(a) of the orders) so as to avoid incurring further costs relating to the Contested Jobs; and

(b) the agreement was not intended by either party to restrict the bases upon which either party might appeal any orders of this Court (if any appeal is brought).

20 Accordingly, at the directions hearing on 28 June 2019, the Court made orders by consent for:

(a) 'Quantification of Achilla's damages' and requiring the parties to instruct their respective experts, Mr Greg Meredith in the case of the Holihan Parties and Ms Dawna Wright in the case of the Amcor Parties, with an agreed letter of instruction to prepare a joint report quantifying Achilla's damages in accordance with paragraph 2 of those orders, the Reasons[13] and Ruling No 3[14]; and

(b) the adoption of the Mines Report (save in so far as the report concerns the jobs the subject of the Amcor Displays Objection and the Contested Jobs listed in Annexure A to the orders, and with some minor variations).

21 In accordance with further orders made on 30 July 2019, the parties instructed their respective experts with an agreed letter of instruction, and on 22 August 2019 the parties' respective experts provided a joint expert report prepared in response to the letter of instruction ('August Report').

22 At a directions hearing held on 28 August 2019, the parties and the Court discussed two 'issues' contained in the August Report about which further clarification from the parties' respective experts was required. Accordingly, on 3 September 2019 the parties provided to their respective experts a supplementary joint letter of instructions seeking clarification in relation to the 'issues' discussed at the hearing on 28 August 2019 ('Supplementary Letter of Instruction'). On 18 September 2019 the parties' respective experts provided a joint expert report prepared by them in response to the Supplementary Letter of Instruction ('September Report').

23 At directions hearings held on 26 September and 3 October 2019, the Holihan Parties raised issues with the September Report. The parties subsequently prepared a further supplementary letter of instruction regarding the quantification of Achilla's loss, including seeking clarification about the quantification of loss in the calculations accompanying the August and September Reports ('Further Supplementary Letter of Instruction'). On 23 October 2019, the parties' respective experts provided a joint expert report (and associated calculations) in response to the further supplementary letter of instruction (October Report). On 30 October 2019 the parties' respective experts provided a revised version of their October joint expert report (and associated calculations) in order to correct a typographical error.

24 Against that background, on 29 October 2019 the Court made orders listing the proceeding for hearing as to final orders (other than as to costs) on 25 November 2019 and fixing a timetable for the parties to file and serve submissions (including reply submissions) in relation to any outstanding matters (other than costs) including:

(a) the adoption (or otherwise) by the Court of the joint experts' reports;

(b) quantification of damages payable to Achilla, including any amount by way of interest; and

(c) final orders disposing of the counterclaim and cross-claim.

25 The Holihan parties[15] and the Amcor parties[16] each filed outlines of submissions and the Holihan parties filed reply submissions. The Amcor parties also filed and served an affidavit of Ms Christiana Maree McCudden (solicitor for the Amcor parties) sworn on 19 November 2019, in order to collate in one place the documents relevant to the Holihan parties' claim for interest ('McCudden 19.11.19 affidavit'). On the morning of the hearing, the Holihan parties filed an affidavit of Mr James Crighton John Humphris (solicitor for the Holihan parties) affirmed on 25 November 2019 ('Humphris 25.11.19 affidavit') responding to the matters addressed in the McCudden affidavit and matters raised in the Amcor parties' reply submissions.[17] Following the hearing, a supplementary affidavit of Mr Humphris affirmed on 25 November 2019 ('Humphris 25.11.19 supplementary affidavit') was filed, exhibiting a copy of the orders Vickery J made on 13 March 2015 fixing the counterclaim and cross-claim for trial.

Summary of conclusions reached as to final orders (save as to costs)

26 On 20 December 2019 the Court delivered its reasons concerning the quantification of Achilla's damages and Achilla's claim for interest on the damages award: Amcor Ltd & Ors v Barnes & Ors [No 2].[18]

27 In summary, the conclusions reached by the Court were as follows.

28 In respect of Achilla's claim for damages for APA's overcharging as a result of the breaches of clause 12.1 of the Second Sale Agreement, the Court determined that Achilla should be awarded damages of $232,642.06.

29 In respect of Achilla's claim for damages for lost OME sales as a result of APA's breaches of clause 12.2 of the Second Sale Agreement, the Court, doing the best it can with the information before it, determined that the appropriate course is for it to fix the quantum of Achilla's damages at the sum of $2,197,414, arrived at by adopting the methodology applied by the joint experts in their October 2019 report.

30 The Court found that Achilla is entitled to an award of damages totalling the sum of $2,430,056.06, comprised of the overcharging amount of $232,642.06 and a sum of $2,197,414 for the lost OME sales, together with interest thereon pursuant to s 60 of the Supreme Court Act 1986 (Vic) ('Supreme Court Act'). Accordingly, interest should be calculated on the sum of $2,430,056.06.

31 In the present case, the Court has found that, good cause to the contrary having been shown, it is appropriate that interest should run on the damages awarded to Achilla from 4 October 2010 (when APA was joined as a defendant and the relevant breaches were pleaded against it) rather than from 3 September 2007 (when the principal proceeding was commenced).

32 As to the rate of interest, the Court has determined, in the exercise of its discretion, to award interest on the amount of the damages award at the penalty rate(s) applicable from time to time under s 60(1) of the Supreme Court Act.

33 On 19 February 2020, the Court entered judgment[19] in favour of the relevant Holihan parties on both the counterclaim[20] and the cross-claim.[21] The issue of costs was reserved,[22] the Court having set a timetable for the filing of written submissions and any affidavit material in support by the respective parties.[23]

34 To that end, the Holihan parties filed and served their outline of submissions on 6 March 2020[24] together with an affidavit of Mr James Crighton John Humphris sworn on 6 March 2020.[25] The Amcor parties filed their submissions on costs on 8 April 2020[26] which they served that day together with an (unsworn) affidavit of Ms Christiana Maree McCudden.[27] The Holihan parties filed their outline of submissions in reply on 29 April 2020.[28]

The Court's discretion as to costs - general principles

35 Section 24(1) of the Supreme Court Act[29] and s 49(3)(k)[30] and Part 4.5 of the Civil Procedure Act dealing with the Court's powers as to costs, and rules 63.02, 63.03 and 63.04 of the Rules,[31] provide that the Court has a broad discretion in determining questions of costs. Further, s 65C(1) of the Civil Procedure Act also now permits the Court to make 'any order as to costs it considers appropriate to further the overarching purpose' and such order may 'make different awards of costs in relation to different parts of a proceeding' or 'order that parties bear costs as specified proportions of costs'. [32]

36 Generally, where a party is successful, costs will follow the event and a successful party will usually obtain all of the costs of the action even though it may have failed in establishing some of the alternative heads of claim. In Oshlack v Richmond River Council, McHugh J conveniently summarised the general position concerning the 'usual order as to costs', and the objectives the Court seeks to meet in exercising its discretion as to costs, as follows: [33]

[67] The expression the "usual order as to costs" embodies the important principle that, subject to certain limited exceptions, a successful party in litigation is entitled to an award of costs in its favour. The principle is grounded in reasons of fairness and policy and operates whether the successful party is the plaintiff or the defendant. Costs are not awarded to punish an unsuccessful party. The primary purpose of an award of costs is to indemnify the successful party.[34] If the litigation had not been brought, or defended, by the unsuccessful party the successful party would not have incurred the expense which it did. As between the parties, fairness dictates that the unsuccessful party typically bears the liability for the costs of the unsuccessful litigation.

...

[69] The traditional exceptions to the usual order as to costs focus on the conduct of the successful party which disentitles it to the beneficial exercise of the discretion. In Anglo-Cyprian Trade Agencies Ltd v Paphos Wine Industries Ltd,[35] Devlin J formulated the relevant principle as follows:

"No doubt, the ordinary rule is that, where a plaintiff has been successful, he ought not to be deprived of his costs, or, at any rate, made to pay the costs of the other side, unless he has been guilty of some sort of misconduct."

"Misconduct" in this context means misconduct relating to the litigation,[36] or the circumstances leading up to the litigation[37]. Thus, the court may properly depart from the usual order as to costs when the successful party by its lax conduct effectively invites the litigation[38]; unnecessarily protracts the proceedings[39]; succeeds on a point not argued before a lower court[40]; prosecutes the matter solely for the purpose of increasing the costs recoverable[41]; or obtains relief which the unsuccessful party had already offered in settlement of the dispute.[42]

37 More recently, in Northern Territory v Sangare,[43] the High Court described the discretion as to costs in the following terms:[44]

The discretion as to costs

[24] It is well established that the power to award costs is a discretionary power, but that it is a power that must be exercised judicially, by reference only to considerations relevant to its exercise and upon facts connected with or leading up to the litigation[45]. While the width of the discretion "cannot be narrowed by a legal rule devised by the court to control its exercise"[46], the formulation of principles according to which the discretion should be exercised does not "constitute a fetter upon the discretion not intended by the legislature"[47]. Rather, the formulation of principles to guide the exercise of the discretion avoids arbitrariness and serves the need for consistency that is an essential aspect of the exercise of judicial power[48].

[25] A guiding principle by reference to which the discretion is to be exercised - indeed, "one of the most, if not the most, important" principle - is that the successful party is generally entitled to his or her costs by way of indemnity against the expense of litigation that should not, in justice, have been visited upon that party[49]. The application of that principle may be modified or displaced where there is conduct on the part of the successful party in relation to the conduct of the litigation that would justify a different outcome. . . .

38 Accordingly, in determining how to exercise its discretion as to costs, it is permissible for the Court to have regard to the conduct of the respective parties in the litigation. Further, the Court is permitted, in the exercise of its discretion, to award costs by reference to issues in the proceeding or to order that the successful party recover only a proportion of its costs.

Summary of the Holihan parties' submissions as to costs

The Holihan parties seek a 'special' costs order

39 The Holihan parties seek an order that the costs of both their counterclaim and the Amcor parties' cross-claim be awarded on an indemnity basis, as follows:[50]

(a) ACB Co Vendor and APA pay Achilla's and ACB Co Purchaser's costs of and incidental to their counterclaim, including reserved costs, on an indemnity basis.

(b) APA pay the Holihan parties' costs of and incidental to the cross-claim, including reserved costs, on an indemnity basis.

40 The Holihan parties' claim for indemnity costs is founded upon a settlement offer made by them to the (then) plaintiffs, Amcor Ltd and ACB Co Vendor in the 'Barnes Proceeding' (S CI 2007 8181).[51] The settlement offer was not made as a formal offer of settlement under the Rules, but rather was made by letter dated 17 December 2007 from their solicitors, Mills Oakley Lawyers, to the (then) solicitors for the Amcor parties, Corrs Chambers Westgarth. The letter was headed 'Without Prejudice Save as to Costs' and referenced 'Holihan and Ors ats Amcor Limited and Anor Supreme Court 942 of 2004',[52] and the settlement offer set out therein was expressed to be made 'in accordance with the principles outlined in Calderbank v Calderbank[53]'.[54]

41 The letter containing the Calderbank offer was sent to the (then) solicitors for the Amcor parties shortly after the Holihan parties filed their defences in the Barnes proceeding (on 26 November 2007). Relevantly, the Calderbank offer was framed in the following terms:[55]

It is the defendants' position that there is no legal basis to the claim bought [sic.] against them.

The defendants deny that they have breached the duties as alleged, and say that the proceeding commenced against them is misconceived.

In addition to the Defence, Mr Holihan offered and met with Ms McPherson from Amcor and Janet Whiting, her lawyer, on 23 November 2007, following an unsuccessful mediation between the parties. In this private meeting, Mr Holihan provided various documents (all of which were already in the possession of Amcor) and provided full and frank answers to a range of questions posed to him by Ms McPherson and Ms Whiting, demonstrating that the purchase of the corrugated box business was an arms' length transaction for proper value. . . .

. . .

Notwithstanding the information provided, Amcor has made it clear that it intends to proceed with litigation against my clients and will not be satisfied with anything less than recovery of the corrugated box business.

In light of the above and with my clients wishing to avoid the expense and inconvenience of litigation, my clients propose to settle all matters between Amcor and themselves, including the proceedings, on the following basis:

1. The proceedings stand dismissed as between our respective clients;
2. Parties enter into mutual releases whereby they release each other in respect of all matters arising out of and in respect to the proceedings; and
3. The parties bear their own costs of and incidental to the proceedings.

This offer remains open for acceptance until 12 January 2008, when it lapses. In the event that the offer is rejected, my client will rely upon this offer made in accordance with the principles outlined in Calderbank v Calderbank, and look to recover all of their costs on the indemnity basis from the date of this offer. In this regard, your attention is drawn to the judgment of His Honour Justice Osborn made on 11 December 2007 and the undertaking as to damages provided by Amcor.

42 Shortly prior to the date when the Calderbank offer was made, the solicitor for the Holihan parties informed legal representatives of the other parties that '[their] clients wish to file a Counterclaim in the proceeding',[56] and that an order to that effect had been included in the minute of proposed orders to be sought at the directions hearing the following day. The orders made by Osborn J by consent at the directions hearing held on 14 December 2007 included an order that '[a]ny counterclaim ... be filed and served by 4.00pm on 21 January 2008'.[57]

43 It is not controversial that the Calderbank offer was not accepted on or before 12 January 2008 and it lapsed by effluxion of time.[58] On 21 January 2008, Achilla (one of the Holihan parties) filed its counterclaim naming ACB Co Vendor (which at that time was the second plaintiff in the Barnes proceeding) as the sole defendant by counterclaim.[59] The primary claim pleaded at that point was a claim for damages alleging that ACB Co Vendor had not purchased or procured the supply of all its OME supplies from Achilla during the period and had purchased or procured supplies of products from others, by reason whereof it had suffered loss and damage.[60] There was also a claim that ACB Co Vendor had failed to verify and confirm the basis of its D & D costing and to ensure that the costing applied to products supplied by it to Achilla pursuant to the Second Sale Agreement 'is a true and accurate reflection of its D & D costs.'[61]

44 In December 2009, Amcor applied to amend its pleadings in (inter alia) the Barnes proceeding by seeking leave to join another Amcor entity, APA,[62] as a plaintiff and to plead the Deed of Accession dated 21 March 2005.[63] On 19 May 2010, Emerton J delivered her reasons in relation to Amcor's application, and granted leave for it to join APA and to amend.[64] On 2 June 2010, the Amcor parties filed a further amended statement of claim in the Barnes proceeding, joining APA as a plaintiff and pleading the Deed of Accession.[65] Subsequently, on 23 September 2009, the solicitor for the Holihan parties wrote to the Amcor parties solicitor to inform them that Achilla intended to seek leave at the directions hearing on 1 October 2010 to make amendments to the counterclaim relating to the operation of the Deed of Accession.[66]

45 On 1 October 2010, Emerton J made orders in the Barnes proceeding, including orders granting Achilla leave to join APA as a defendant to its counterclaim and to amend it, and requiring the Amcor parties to file and serve an affidavit of documents in relation to the counterclaim. On 4 October 2010, Achilla filed an amended counterclaim, in which it joined APA as a second defendant by counterclaim, and pleaded the Deed of Accession. Achilla also amended its pleading of the alleged D & D costing breach so as to plead the 'overcharge' it contended for. The Amcor parties filed their defence to Achilla's amended counterclaim on 22 October 2010. (Thereafter, the relevant events are summarized in the parties' agreed procedural chronology set out in Annexure 1 to these reasons).

46 Against that background, and having regard to the principles set out by the Court of Appeal in Hazeldene's Chicken Farm Pty Ltd v Victorian WorkCover Authority [No 2][67] and the further observations made by the Court in Chen v Chan,[68] the Holihan parties contend that the Amcor parties' failure to accept the Calderbank offer before its expiration on 12 January 2008 was 'unreasonable' because:[69]

(a) the Holihan Parties had foreshadowed the making of a counterclaim and orders had been made requiring the filing of a counterclaim in the immediate future;

(b) on the Holihan Parties' uncontradicted evidence, Mr Holihan had raised concerns about OME work being sent to alternative suppliers with Mr Nellies either prior to, or at, a meeting on 1 February 2006;[70] and

(c) even cursory investigations into the operation of the supply arrangements (which were then still on foot) would have revealed the breaches which the Court subsequently found, and demonstrated that the proposed counterclaim would likely be protracted and costly.

47 The Holihan parties submit that the settlement offer, on its terms, 'extended beyond the proceedings themselves' and that '[i]ts subject matter cannot be read as confined by the pleadings as they then stood.'[71] While they acknowledge that as at 17 December 2007 (when the Calderbank offer was made) APA was not a party to the proceedings,[72] the Holihan parties observe that their offer extended beyond the proceedings themselves because it was stated to be an offer to settle 'all matters between Amcor and [the Holihan parties], including the proceedings'[73] and contend that:

(a) read sensibly, the offer can only be interpreted as an offer made to all relevant Amcor entities; and (b) there can be no doubt that had it been accepted, there would have been no defensible basis on which Achilla and ACB [Co] Purchaser could have made the claims the subject of the counterclaim, and the parties would never have become subject to the expense or inconvenience of the cross- claim.

48 Further, they maintain that the matters that became the subject of the counterclaim, that was ultimately tried and determined in Achilla's and ACB Co Purchaser's favour, were within the contemplation of the parties at the time that the Calderbank offer was made and expired.[74]

49 In that regard, it is relevant to note by way of contextual background that further and better particulars of the counterclaim were provided by Achilla on 2 May 2008.[75] On 4 October 2010, Achilla filed an amended counterclaim, in which it joined APA as a second defendant.[76] Therein, for the first time, Achilla pleaded the entry into the Deed of Accession in March 2005 (whereby APA was substituted for ACB Co Vendor in all its capacities under the Second Sale Agreement) and alleged breaches of the clause 12.2 purchase obligation by APA (from 21 March 2005 until the end of the Claim Period), and also pleaded the alleged overcharging by APA on the products supplied to Achilla pursuant to clause 12.1 (following entry into the Deed of Accession).

50 The Holihan parties submit that when the settlement offer was made, 'Amcor Ltd and its subsidiaries were well-placed to assess the merits of the offer'[77] and the Amcor parties 'were given a sufficient time (almost a month) to consider the offer and take instructions in relation to it.'[78] They say that had the Amcor parties accepted it, 'they could have brought an early end to "all matters between [the Amcor Parties] and [the Holihan Parties]" in late 2007 or early 2008, avoiding the cost, expense and inconvenience involved with what ended up being protracted and hard-fought litigation.'[79]

Summary of the Amcor parties' submissions as to costs

51 In their written submissions on costs,[80] the Amcor parties implicitly acknowledge that the Holihan parties are entitled to an award of costs in their favour on both the counterclaim and the cross-claim.

52 In the case of the counterclaim, the Amcor parties oppose the making of any 'special' indemnity costs order, and submit that the Holihan parties should only be awarded 30 per cent of their costs, to be taxed on the standard basis. The significant reduction contended for is said to be appropriate because of:[81]

delays in the prosecution of that counterclaim and further given time expended and or delays resulting from significant unsuccessful allegations and claims such as -

(a) the extensive number of OME jobs originally claimed as a breach by the Holihan parties which were not found in their favour but which were argued over a number of years; and

(b) the extensive, time, evidence and argument spent on the Holihan parties' implied supply agreement and or estoppel by convention allegations that were not successful.

53 In this regard, the Amcor parties rely upon the McCudden 08.04.20 affidavit and the procedural chronology that was prepared and agreed by the parties in respect of the Achilla counterclaim and filed with the Court on 9 December 2019[82] in advance of the Court delivering its reasons concerning quantification of Achilla's damages and interest thereon in Amcor Ltd & Ors v Barnes & Ors [No 2] on 20 December 2019.

54 The Amcor parties also point to the delay on the part of the Holihan parties in formulating Achilla's counterclaim and in having it heard, and the further three years or so taken up following the delivery of judgment on the counterclaim and cross-claim for the special referee process to be undertaken and completed and the quantum of any loss to be determined. The Amcor parties submit that given the time the counterclaim has occupied, and the reduced number of OME jobs for which Achilla was ultimately found to be entitled to be compensated and the time spent on Achilla's arguments that were not successful, 'the costs of the Holihan parties in respect of the Achilla Counterclaim should be the subject of a significant discount of 70% and on a standard basis.'[83]

55 In the case of the cross-claim, the Amcor parties' written submissions do not specifically address the Holihan parties' claim that they should be awarded their costs of and incidental to the cross-claim, including reserved costs, on an indemnity basis.

What orders as to costs should be made on the Holihan parties' counterclaim?

Should there be any apportionment or reduction of the Holihan parties' costs?

56 The Amcor parties bear the onus of demonstrating that there should be any reduction or apportionment of the costs awarded to the Holihan parties in respect of Achilla's counterclaim.

57 The Amcor parties submitted that the principles to be applied in relation to the apportionment of costs were comprehensively and authoritatively set out by Robson J in GT Corporation Pty Ltd v Amare Safety Pty Ltd [No 3],[84] relevantly as follows:

1. As a general rule, costs should follow the event, and a successful party should obtain all of the costs of the action even though it failed to establish some of the alternative heads of its claim: Ritter v Godfrey; McFadzean v CFMBEU.
2. Rule 63.04(1) permits the court, in its discretion, to make an order not only as to a distinct question or issue in the pleading sense, but also to any part of the proceeding: Woolf v Burmon; Cretazzo v Lombardi.
3. The court may, in its discretion, decline to order costs in favour of a successful party, or may order the successful party to pay the costs of the unsuccessful party, where the plaintiff failed to establish discrete heads of claim or failed to establish issues which it pursued in its claim, although ultimately succeeding on the basis of another discrete head of claim: McFadzean v CFMBEU.
4. It is not necessary that the issue concerned was raised unreasonably by the party: Rosniak v GIO. Although, a relevant consideration may include whether the issue was raised unreasonably: Mickelberg v Western Australia.
5. The court may, in its discretion, make an order that is a single order, fixing what proportion of a party's costs should be paid by another party, thus obviating cross-orders or particular orders as to particular costs: Byrns v Davie; McFadzean v CFMBEU; Nolan v Nolan.
6. The caveat referred to by Jacobs J in Cretazzo v Lombardi may have less weight today than when it was decided: Primcom Pty Ltd v Sqarioto; Mickelberg v Western Australia; and Victoria v Master Builders Association of Victoria.
7. Although the quantum of damages recovered compared to that claimed may be a relevant consideration to the court in exercising its discretion, greater emphasis should be given to the failure or loss on discrete claims or issue[s] and the time occupied in relation to them.

58 Further, the Amcor parties submitted, that while the starting point is that costs follow the event, the Court of Appeal in Marriner v Australian Super Developments Pty Ltd,[85] has re-affirmed that:[86]

where the successful party made multiple claims and failed in respect of some of them or pursued distinct issues upon which it achieved mixed success, in an appropriate case, the court can award that party only part of its costs or make an order that reflects the measure of success achieved by each party on the issues in dispute.

59 They submit that this approach has been followed in recent cases, such as WeatherBeeta Limited and Ors v Hammersmith Nominees Pty Ltd[87] and ASIC v Flugge (No 2),[88] where trial judges have examined and determined the question of what portion of costs should be awarded to those parties who have achieved only partial success in their original claims. In this regard, the Amcor parties noted that in WeatherBeeta, Connock J awarded the 'successful' party only 5 per cent of the costs claimed in order to take account of the level of success in that counterclaim, and in ASIC v Flugge (No 2), Robson J held there should be no order as to costs notwithstanding that ASIC was successful in some of its claims.

60 The Amcor parties submitted that the present case is one where it is appropriate for the Court to award costs in respect of Achilla's counterclaim on a discounted basis. First, they contend that when the degree of 'success' the Holihan parties achieved is viewed against the background of the plethora of OME jobs they claimed were issued to alternative suppliers across the five year period from July 2003 to July 2008, it will be seen that out of the 1,913 OME jobs alleged as breaches of the Second Sale Agreement, ultimately only 418 OME jobs were found in favour of the Holihan parties,[89] representing less than 22 percent of the breaches originally claimed by them.

61 Secondly, the Amcor parties submitted that while the question of the OME jobs that went to alternative suppliers was, at trial, dealt with for the most part on a group or category basis, in the lead up to trial, and after the trial during the special referee process, it was necessary for the parties to approach each of the OME jobs claimed on an individual basis. They submitted that this process:[90]

involved the drafting of the very detailed schedules that made up the Liability and Quantum Particulars filed by the Holihan Parties, the detailed response and reply schedules filed in respect of each of the OME jobs, the review of documentation and discovery that sat behind those detailed schedules, and the provision of further schedules (Details of Claim), along with other material and instructions to the Special Referee, Mr Mines. The time spent on such matters was extraordinarily long and intensive, spanning across many years in the conduct of the Achilla Counterclaim.

62 Against that background, the Amcor parties contend that the 'time, costs and resources dedicated to considering and responding to each of those 1,913 OME jobs claimed as a breach, including the 78% of the OME breach claims for which the Holihan Parties were not ultimately successful, was very substantial.'[91]

63 The Amcor parties submit the Holihan parties did not obtain 'the value of relief sought' as claimed in their Quantum Particulars dated 15 February 2013.[92] The Amcor parties observe that the face value of the OME jobs as claimed by the Holihan parties in their Quantum Particulars was $7,746,427.55 (ex GST and $8,521,070.30 inc GST), and the total 'Profit to Achilla on the supply' of those jobs, as set out in the Quantum Particulars was $4,091,022.55 plus interest. Further, the Amcor parties note, the alternative loss amounts for breach, as calculated in respect of the Adjusted Method N proposed by Mr Meredith, the expert appointed by the Holihan parties, but providing for fixed costs to be recovered only from Amcor jobs (as found by the Court), ranged from approximately $4.1million to $6.8million. However, the face value of the invoices ultimately considered by the joint experts (Mr Meredith and Ms Wright) for the purpose of their calculations, as attached as Annexure 1 to the joint letter of instruction dated 30 July 2019, was $882,961.19 (ex GST and $971,258.41 inc GST), and the quantum of loss ultimately found in favour of the Holihan parties in terms of the OME breaches was $2,197,414.

64 In these circumstances, the Amcor parties submit that recovery of only broadly 32 percent (using the upper loss calculation of $6.8million above) of the loss calculated by the joint experts at trial in respect of the alleged breaches of the Second Sale Agreement represents only '[p]artial success', in the sense that the party 'has not obtained all of the relief sought' and is a basis upon which to apportion costs.[93]

65 The Amcor parties contend that if the Court determines it is appropriate to apportion costs, it should, following Robson J in GT Corporation, do so in 'a single order, fixing what proportion of a party's costs should be paid by another party, thus obviating cross-orders or particular orders as to particular costs'.[94] During oral submissions, the Amcor parties' solicitor confirmed that they are 'seeking a percentage discount' rather than asking the Court to define categories of costs or issues within the counterclaim where costs would not be awarded.[95]

66 The Amcor parties contend that the findings made by the Court in the Reasons effectively reduced the period during which OME jobs that were sent to alternative suppliers fell to be considered by the Special Referee. That is, given the Court's findings, the relevant Claim Period commenced from a date following entry into the Deed of Accession on 21 March 2005 (whereby APA became the 'Vendor' contracting party in place of ACB Co Vendor) rather than from the Completion Date of 31 July 2003 (under the Second Sale Agreement), such that the relevant number of jobs reduced significantly from 1,913 OME jobs to something in the order of 930 jobs.[96]

67 The Amcor parties submit that when one has regard not only to the time taken at trial, but also to the time occupied in the entire counterclaim proceeding both in the interlocutory stage when responding to requests for particulars of the 1,913 individual OME jobs that were claimed, and also during the Special Referee process, it is clear that much time was expended on OME jobs for which ultimately Achilla was unsuccessful. The Amcor parties contended that the particulars that were ordered to be provided in response to the individual listing of the 1,913 alleged breaches required vast amounts of work to be performed, including requiring supporting material to be discovered or obtained from third parties, and then analysed, instructions were sought and obtained, individual jobs were cross-referenced to other jobs, and then tables were prepared by each party.[97] And when it came to the Special Referee process, a similar exercise was required to be undertaken, whereby details of the work involved and any relevant objection were required to be provided for each OME job that was claimed, and then each OME job had to be assessed individually in accordance with the Reasons and the rulings. [98]

68 In essence, the Amcor parties submit that the 1,913 OME jobs that were claimed at trial fell away to the 420 or so OME jobs that ultimately were the subject of the Special Referee process, which entails the consequence that the Amcor parties 'have established that a very substantial number of the individual breach allegations had failed.'[99]

69 Further, they submitted, the Holihan parties also failed on their 'implied supply agreement' and 'estoppel by convention' claims, which took up time at the trial and were required to be determined by the Court.

70 The Amcor parties were also critical of the manner in which Achilla prosecuted the alleged breaches, in the sense that Achilla effectively alleged that each OME job performed by each of the eight alternative suppliers constituted a breach of the Second Sale Agreement, and the time that process took. In that context, the Amcor parties also pointed out that the Holihan parties had put in issue all of the Amcor Displays OME jobs even though the Court had found that the Amcor Displays OME jobs were only a small component of the business as usual work that the ACB Business was doing.[100]

71 The Amcor parties submitted that in order to make good their claim that the Holihan parties costs of the counterclaim should be discounted, they were not required to establish that Achilla's conduct amounted to misconduct or was unreasonable. Rather, they said, it was sufficient for them to show that significant legal costs were incurred in responding to those claims, and in circumstances where Achilla was not successful on the bulk of them, such that it would be 'unreasonable' and 'unfair' for the Amcor parties to have to bear their own costs of responding to the 1,500 unsuccessful OME breaches, and their own cost of responding to the unsuccessful implied supply agreement and estoppel claim, as well as bearing the Holihan parties' costs of those unsuccessful OME breaches and claims.[101]

72 During oral submissions, counsel for the Holihan parties accepted that (contrary to the position advanced in their written reply submissions) it is open to a court to discount the costs recoverable by a successful party, and to do so by as much as 70 per cent, but they submitted that there must be some identified basis for departing from the general rule, and it is not enough merely to show that a party has not succeeded on every pleaded basis of its claim.[102] They contended that the Amcor parties had failed to identify anything in the conduct of the Holihan parties that would justify the Court in the present case departing from the fundamental guiding principle identified by the High Court in Sangare concerning the exercise of its discretion as to costs.

73 The Holihan parties specifically addressed the allegations raised concerning the Amcor Displays jobs and the work performed in respect of them during the Special Referee process, by drawing attention to Ruling No 1, where the Court recorded the consensus reached between the parties, as follows:[103]

1. In other words, there is consensus between the parties that the determination of the Holihan parties' entitlement to damages for work obtained by Amcor Displays will involve two steps:

(a) Mr Mines will first determine whether the Holihan parties are entitled to compensation in respect of the Displays jobs, just as he will do in respect of other jobs by reference to the 'business as usual' criterion and the carve-out; and

(b) the Court will then determine how much compensation, if any, the Holihan parties are entitled to receive having regard to the finding that the Amcor parties' obligation did not extend beyond providing "some small amount of the Amcor Displays work" to Achilla.

Whether a party should have leave to reopen their case will be a matter for formal application and submissions once Mr Mines has completed his work.

74 The Holihan parties submitted that in circumstances where the Amcor parties had agreed upon the process that was to apply in respect of the Special Referee's consideration of the Amcor Displays OME jobs, 'it sits awkwardly' for them to now 'complain that further work was done in respect of [D]isplays jobs which were subsequently not subject to compensation'.[104]

75 The Holihan parties then turned to focus their reply on the Amcor parties submissions concerning the Holihan parties lack of success on the implied agreement and estoppel by convention points. They submit that the Amcor parties have failed to identify what was wrong with the Holihan parties raising those allegations, noting that it is not contended they were frivolous, manifestly hopeless or doomed to fail, such as might enliven the Court's discretion to depart from the usual rule. Instead, they observed, the Amcor parties rely upon the 1955 decision of the Full Court of Victoria in Keddie v Foxall,[105] where their Honours stated:[106]

The cases do show, we think, that in exercising his discretion on costs a Judge may have regard to conduct - not necessarily misconduct - of any party which is calculated to occasion unnecessary expense ...

76 While this passage was relied upon by Kaye J in Lollis v Loulatzis (No 2)[107] to reduce the costs otherwise payable to a successful plaintiff, and was cited with approval by Robson J in GT Corporation,[108] the Holihan parties submit that Keddie has been 'well and truly overtaken by the far more recent intermediate appellate authorities which have been handed down in the context of modern litigation practice'.[109] But, the Holihan parties submit further, that even if it be the case that a judge may have regard to conduct 'which is calculated to occasion unnecessary expense', in the present case there is not, and could not, be any allegation 'that the conduct of the proceeding by the Holihan parties was calculated to cause unnecessary expense',[110] so Keddie cannot assist at all.

77 Against that background, the Holihan parties contend that there is no basis at all to discount their costs incurred on the counterclaim. But if, contrary to their submissions, the Court were of the view that there is some justification for a discount, they submit it would only be in respect of 'some minor part of the pre-trial and trial costs' of the counterclaim (only) where it would be appropriate to apply a discount, and then only if there were some means of disentangling those two issues for the remainder of the case which they observed 'would be impossible'.[111] The Holihan parties also contend that there is no logical basis to discount their costs of the proceeding simply because some time was spent by the parties dealing with OME jobs that ultimately were defeated because of the failure of those two integers of their claim.[112]

Consideration and disposition - the Holihan parties' costs of the counterclaim should be apportioned or discounted and fixed in a single order

78 In its counterclaim, Achilla was seeking compensation totalling $4,091,022.55 (plus interest) in respect of the 1,913 OME jobs that it alleged the Amcor parties sent to alternative suppliers during the currency of the Second Sale Agreement, from 31 July 2003 to 31 July 2008.[113]

79 At trial, the Holihan parties presented their case as 1,913 instances of the alleged breach of clause 12.2 of the Second Sale Agreement,[114] predicated on alternative scenarios. First, Achilla relied upon the (alleged) implied supply agreement (read together with the Deed of Accession) as covering the period from Completion[115] to the date five years after Completion. Alternatively, if the implied supply agreement was not made out, as the Court found to be the case, Achilla relied upon the Second Sale Agreement (as amended by the Deed of Accession) in respect of the period on and from 21 March 2005 (when the Deed of Accession was entered into) to the date five years after Completion.

80 In circumstances where the implied supply agreement (and estoppel by convention) contended for by the Holihan parties was rejected, the general position as found by the Court is that Achilla is entitled to be compensated by APA for each job that should have been provided to the ACB Business on a 'business as usual' basis for the period following entry into the Deed of Accession, save for work that fell within the carve out or exception to that obligation in clause 12.2.[116] Accordingly, in the final outcome, given the construction of clause 12.2 arrived at by the Court, it was only those OME supplies that APA procured from the alternative suppliers post entry into the Deed of Accession that fell to be considered by the Special Referee.

81 Following delivery of the Reasons, the parties jointly identified and mutually agreed upon the period from 27 September 2005 to 31 July 2008[117] as being the relevant 'Claim Period'.[118] Because the Claim Period commenced from 27 September 2005, rather than 31 July 2003 as contended for by the Holihan parties on their primary case, the Amcor parties submitted that the findings made by the Court rejecting the implied supply agreement (and estoppel by convention) arguments effectively limited the period during which OME jobs that were sent to alternative suppliers fell to be considered by the Special Referee, and together with the ruling delivered on 28 March 2018[119] operated to reduce significantly the number of relevant jobs from the 1,913 OME jobs the Holihan parties claimed to something in the order of 930 jobs.[120]

82 In those circumstances, the Amcor parties contend that because of the 'extensive time, evidence and argument'[121] spent on the implied supply agreement (and estoppel by convention) arguments on which the Holihan parties were not successful, including (in the pre-trial phase) the '[a]round 12 months of work ...spent on intensive drafting of claims and responses'[122] to the individual jobs set out in the Holihan parties' Quantum Particulars and Liability Particulars, the Holihan parties should be awarded only a portion of their costs on the counterclaim.

83 Further, the Amcor parties rely upon the fact that following the delivery of the Reasons, and completion of the work performed by the Special Referee, the final list of OME jobs that was issued to the (accounting) Joint Experts on 30 July 2019, for the purpose of having them perform their final calculations, 'contained only 418 of the original 1,913 OME jobs claimed by the Holihan parties'[123] and the face value of the invoices ultimately considered by them for the purpose of their calculations, was $882,961.19 (ex GST and $971,258.41 inc GST).[124]

84 As noted above, the quantum of loss ultimately found in favour of the Holihan parties in respect of the OME breaches was $2,197,414. While the Holihan parties did not achieve success for the entirety of their claim, in my view, the award of damages Achilla achieved as a successful plaintiff on the counterclaim nevertheless represents a substantial success when viewed in the context of the litigation.

85 As the Holihan parties observed, this litigation has been 'protracted and hard-fought'.[125] It is clear that the separation of the trial of the counterclaim from the trial of the main proceeding, and the late introduction of the Amcor parties cross-claim, have contributed to the length of time taken for the matter to be heard and determined. The Amcor parties seek to attribute to the Holihan parties any delays encountered in bringing the counterclaim and cross-claim proceedings to an end point, but in my view it is not appropriate to do so. Rather, the position is that with the adjournment of the commencement of the trial of the counterclaim, a significant repository of documentation relevant to the counterclaim effectively became 'unavailable'. In that regard, the evidence was that the 'PICK system',[126] that was central to the operation of the ACB Business, was decommissioned in or about July 2011, which was at or about the time the Achilla counterclaim was to be heard by Vickery J as part of the original proceeding. However, on 29 June 2011, his Honour vacated the trial date and adjourned the trial of the counterclaim sine die. As was noted in the Reasons:[127]

[25] When the trial of the principal proceeding commenced before Vickery J on 30 March 2011, it was scheduled to include the hearing (on 25 and 26 July 2011) of the counterclaim brought by Mr Holihan and the corporate entities associated with him ('the Achilla counterclaim'). On 29 June 2011, however, the dates for the hearing of the Achilla counterclaim were vacated - apparently due to a shortage of time - and it was adjourned sine die.[128]

. . .

[986] The evidence is that the PICK system was decommissioned in or about July 2011, which was at or about the time the Achilla counterclaim was to be heard by Vickery J as part of the original proceeding. However, on 29 June 2011, his Honour vacated the trial date and adjourned the trial of the counterclaim sine die. At that point, the formulation of Achilla's counterclaim differed from the current version, in the sense that there was no mention of any implied supply agreement or estoppel by convention. And the Holihan parties did not provide particulars of the 1,913 instances of alleged breach they contend for until they filed their liability particulars dated 3 May 2013. Amcor's General Counsel, Ms McPherson, was herself unable to explain why the PICK system was decommissioned while the Achilla counterclaim was still on foot, and Mr Arnheim, who may have been able to do so, was not called. But the evidence shows that maintaining the functionality of the PICK system on an ongoing basis was likely to be an expensive exercise, particularly in circumstances where it had been replaced at an operational level by SAP.

. . .

[989] In my view, both parties have been hindered in the presentation of their cases by the 'unavailability' of the documentation in the PICK system and, in particular, their inability to access the functioning PICK system. And with the effluxion of time, the ability to gain access to documents held by the alternative suppliers has also been hampered. The unavailability of the body of transactional data and the inability to interrogate the PICK system has presented real difficulties for the Holihan parties in proving their case and also for the Amcor parties in making out their defence.

86 In my view, following delivery of the Reasons, both parties approached the Special Referee process in a constructive way and worked co-operatively with a view to enabling Mr Mines to complete the task referred to him. The same position applies with respect to the parties' conduct concerning the further work undertaken by the Joint Experts following delivery of the Special Referee's report.

87 In the context of the reference to the Special Referee, the Amcor parties point to the number of OME jobs referred to Mr Mines for consideration, being in the order of 930 or so, as compared with the 418 OME jobs that ultimately were the subject of the calculations performed by the Joint Experts, and seek to rely upon the relativity in numbers as indicative of the lack of success the Holihan parties enjoyed. In my view, however, simply focussing on the numbers is apt to mislead and give a false impression. That is largely because the body of OME jobs that was referred to Mr Mines included 'Amcor Displays Job[s]'[129] that were the subject of the Amcor Displays Objection', being the Amcor Displays Jobs that were performed by one or other of the alternative suppliers in the Claim Period, that Achilla contended were OME supplies that APA should have procured from Achilla on a 'business as usual' basis, and for which Achilla was entitled to be compensated.

88 The issue concerning the Amcor Displays Jobs arose from the Court's finding that: [130]

while the ACB Business was doing some 'work' for Amcor Displays prior to the sale, it was not doing all or even a significant proportion of the Amcor Displays' OME work. The ... 2003 profit & loss statement suggest[s] that a small component of the Amcor Displays work was being performed by the ACB Business notwithstanding the arrangement in place with ACE Print .... Accordingly, I am satisfied that on a 'business as usual' construction of the clause 12.2 obligation, Achilla would likely have received some small amount of the Amcor Displays' work, unless the exception was enlivened.

89 To the extent that the Amcor parties' submissions as to costs may be regarded as having complained about the number of Amcor Displays Jobs that were included in the reference to the Special Referee, that process was, as the Holihan parties pointed out, part and parcel of the arrangement that was reached between the parties following delivery of the Reasons to accommodate their agreement that the parties may later wish to apply to the Court to re-open their respective cases to address the issue of proportion. As the Court noted in Ruling No 1:[131]

[24] As the size of the proportion of the available Displays work performed by the ACB Business before the sale was not the subject of pleadings, evidence or submissions at trial, there is a prospect that unless the assessment and quantification exercises clearly demonstrate that the quantum of the Refereed Displays Jobs answers the description of a "small component" of all of the Displays jobs in the Claim Period, the Holihan parties might need leave to re-open their case at the quantification stage to allow the parties to address the matters noted at sub-paragraphs (c) and (d) above. (The parties have effectively agreed that submissions should be directed to that prospect following the preparation of evidence at the quantification stage.)

[25] In other words, there is consensus between the parties that the determination of the Holihan parties' entitlement to damages for work obtained by Amcor Displays will involve two steps:

(a) Mr Mines will first determine whether the Holihan parties are entitled to compensation in respect of the Displays jobs, just as he will do in respect of other jobs by reference to the 'business as usual' criterion and the carve-out; and

(b) the Court will then determine how much compensation, if any, the Holihan parties are entitled to receive having regard to the finding that the Amcor parties' obligation did not extend beyond providing "some small amount of the Amcor Displays work" to Achilla.

Whether a party should have leave to reopen their case will be a matter for formal application and submissions once Mr Mines has completed his work.

. . .

[75] In the case of the Amcor Displays jobs, the position reached at the hearing was to the effect set out in paragraph [25] above, namely that Mr Mines will first determine whether the Holihan parties are entitled to compensation in respect of the Displays jobs, and then it will be a matter for the Court to determine how much compensation the Holihan parties are entitled to receive having regard to the finding that the Amcor parties' obligation did not extend beyond providing "some small amount of the Amcor Displays work" to Achilla. The parties foreshadowed that they may require leave to re-open their cases, but that will be a matter for formal application and submissions once Mr Mines has completed his work.

90 The orders made by the Court on 6 February 2018 appointing Mr Mines as Special Referee identified the 'Amcor Displays Objection' as a separate issue that was not to be determined by him.

91 It was common ground that the Amcor Displays Jobs formed a significant part of the quantum of the Holihan parties' claim. The position adopted by the Amcor parties was that Achilla is not entitled to any compensation for the Amcor Displays Jobs, in essence because Amcor had provided Achilla with the 'small amount' or 'small proportion' of Amcor Displays OME work that the Court found it was obliged to obtain from Achilla following the sale of the ACB Business.

92 The Amcor Displays Objection was one of the issues that the Court heard on 8 February 2019 and addressed in Ruling No 3, delivered on 14 June 2019.[132] Relevantly, the Court found as follows:[133]

For what (if any) Amcor Displays jobs is Achilla entitled to be compensated?

. . .

[177] The schedule of Claim Documents prepared by way of an iterative exchange between the parties during the special referee process indicates that a substantial number of the jobs in the Claim Period that were identified as 'Disputed Jobs' were Amcor Displays jobs that were performed by one or other of the alternative suppliers in the period from 27 September 2005 to 31 July 2008. That is to say, on the evidence before the Court it is demonstrably not the case that from late 2005 all of the Amcor Displays' work in New South Wales was performed by the Service Containers business in Victoria. Indeed, the schedule of Claim Documents records that many of the Amcor Displays jobs undertaken in that period were performed by Le Breton, which was based in New South Wales.

[178] In my view, the notion of 'business as usual' under the Second Sale Agreement entailed that the ACB Business (under new management) would continue to capture the small amount of work that the ACB Business had performed historically for Amcor Displays. In that regard, as was noted in the Reasons, 'Mr Joyce's evidence gave some indication of the type of Amcor Displays' work that would be sourced from the ACB Business while under Amcor ownership, and on a 'business as usual' scenario, it is likely that work would continue'.[134]

[179] On the basis of the evidence before the Court, I am unable to identify the particular Amcor Displays jobs that the ACB Business had performed for Amcor Displays in the financial year preceding the sale. Nevertheless I am satisfied that the Holihan parties have demonstrated that in the final year prior to the Second Sale Agreement, the ACB Business did perform OME work for Amcor Displays to the value of $172,097.83. On a 'business as usual' scenario, notwithstanding that the Second Sale Agreement did not provide for any minimum guarantee of OME work, the arrangement was intended to be a demonstrably commercial one and, as such, it is likely that the ACB Business would continue to perform some OME work for Amcor Displays. In those circumstances, given the Court's findings as to the proper construction of the Second Sale Agreement, and in particular clause 12.2 insofar as it concerns Amcor Displays, Achilla is entitled to be compensated for the 'business as usual' Amcor Displays' work that it did not receive during the Claim Period. Such compensation is to be measured on the basis of Fallback method 2.

[180] If Fallback method 2 is followed, it will effectively place Achilla in the position that it would have been in if 'business as usual' had prevailed, such that in each year of the Claim Period, Achilla would have received some Amcor Displays' OME work, and in the ordinary course, of about the same value as that which the ACB Business received in the final year prior to the Second Sale Agreement. As the Claim Period commenced on 27 September 2005 and ended on 31 July 2008, the stated annual value, being $172,097.83, would then need to be pro-rated for the 2005/06 financial year and for the month of July 2008, and an allowance made for the Amcor Displays' OME work that Achilla did receive during the Claim Period (being $49,423.04 (incl. GST)) in order to arrive at the compensation amount that is to be made the subject of an award of damages.

[181] For completeness, I should add that I do not accept the Holihan parties' submission that any further adjustment is required to reflect 'organic growth' of the kind asserted. Nor do I accept the Amcor parties' submission that there were some additional Amcor Displays jobs that were mis-described as AFP or Service Containers jobs that were performed by the ACB Business during the Claim Period which should be brought to account.

Summary of conclusions

[182] For the foregoing reasons, I am not satisfied that Achilla is entitled to be compensated for all of the Amcor Displays' work that the special referee has identified (on the basis of Achilla's 'capability only') as satisfying the 'business as usual' test. In my view, the Amcor Displays Objection should be resolved by ordering that Achilla be compensated by APA for the 'business as usual' Amcor Displays' OME work that it did not receive during the Claim Period. The quantum of such compensation is to be measured on the basis of Fallback method 2, including by making an allowance for the Amcor Displays' OME work that Achilla did receive during the Claim Period ($49,423.04 (incl. GST)), in order to arrive at the compensation amount that is to be made the subject of an award of damages.

93 At the trial of the counterclaim, the question of the OME jobs that went to alternative suppliers was dealt with, for the most part, on a group or category basis, such that in presenting the rival cases, the parties did not focus attention on each of the 1,913 OME jobs. Rather, evidence was led about the background to the entry into the Second Sale Agreement, the work that was performed by the ACB Business prior to the sale, and the work performed by the ACB Business following the sale to Achilla and the operation of the D & D pricing mechanism, and there was a focus on representative examples of types of OME jobs or processes involved in performing particular types of work or processes involved in those jobs including the OME jobs that were performed by the alternative suppliers. That body of evidence was relevant to the construction of the Second Sale Agreement and to the identification of any breach of the vendor's obligation under clause 12.2, to 'obtain all its OME supplies' of 'Products' from Achilla, save in the exceptional circumstances mentioned therein. In my view, while each party directed submissions (both written and oral) to the implied supply agreement (and estoppel by convention) arguments on which the Holihan parties were not successful, given that the OME jobs that went to alternative suppliers were dealt with on a group or category basis, it is unlikely that the implied supply agreement (and estoppel by convention) issue, of itself, contributed significantly to the duration of the trial. Accordingly, I am not satisfied that the trial of the counterclaim would have been appreciably shorter had the Holihan parties not pursued the implied supply agreement (and estoppel by convention) arguments on which ultimately they were not successful.

94 In the pre-trial phase, however, the parties were required to spend time on the drafting of claims and responses addressing each of the 1,913 jobs set out in the Holihan parties' Quantum Particulars and Liability Particulars. And while there was demonstrably some commonality between the drafting and other work required to address the processes involved in OME jobs that were performed by the alternative suppliers in the period from 31 July 2003 to March 2005 (i.e., prior to entry into the Deed of Accession, on which the Holihan parties were not successful), and that work involved in OME jobs that were performed by the alternative suppliers in the period following entry into the Deed of Accession (on which they were successful), there is, in my view, some justification for the Court to apportion, or apply a discount to, the costs awarded to the Holihan parties.

95 The position concerning the work involved in addressing OME jobs that were referred to the Special Referee, post-delivery of the Reasons, is different.[135] Many of the OME jobs that were the subject of the reference were Amcor Displays Jobs and, as the Holihan parties submitted, the Amcor parties had agreed upon the process that was to apply in respect of the Special Referee's consideration of the Amcor Displays OME jobs, and 'it sits awkwardly' for them to now 'complain that further work was done in respect of [D]isplays jobs which were subsequently not subject to compensation'.[136]

96 In the final outcome, the Holihan parties succeeded in obtaining an award of damages in respect of the Amcor Displays OME jobs, albeit that it was based on the Court's finding that in the final year before entry into the Second Sale Agreement, the ACB Business performed OME work for Amcor Displays to the value of $172,097.83,[137] rather than by reference to the value of each Amcor Displays OME job performed by an alternative supplier in the period following entry into the Deed of Accession.

97 In those circumstances, the parties having agreed upon the approach to be taken before the Special Referee concerning the Amcor Displays OME jobs, and the process generally, in my view, no (further) apportionment or discount is required to be made in respect of the period post-delivery of the Reasons even though the Holihan parties have not obtained all of the relief they sought in respect of those jobs submitted to the Special Referee.

98 In McFadzean v Construction Forestry Mining and Energy Union,[138] the Court of Appeal accepted that where a plaintiff has failed to establish discrete heads of claim or failed to establish issues which it pursued in its claim, although ultimately succeeding on the basis of another discrete head of claim, the court may, in its discretion, decline to order costs in favour of a successful party, or may order the successful party to pay the costs of the unsuccessful party. In so doing, the Court of Appeal[139] endorsed the approach as to costs taken by Eames J in Pricom Pty Ltd v Sgarito[140] concerning the situation where a party has been partially successful, as follows:

As a general rule costs should follow the event, and a successful party should obtain all of the costs of the action even although [sic.] it failed to establish some of the alternative heads of its claim: Ritter v Godfrey [1920] 2 KB 47. However, in the exercise of its discretion the court may decline to order costs in favour of a successful party, or may order the successful party to pay the costs of the unsuccessful party, where the plaintiff failed to establish discrete heads of claim, or failed to establish issues which it pursued in its claim, although ultimately succeeding on the basis of another discrete head of claim: Hughes v Western Australian Cricket Association Inc. (1986) ATPR 40-748, per Toohey J at 48,136.[141]

99 In McFadzean v CFMEU,[142] the Court of Appeal also commended the approach taken by the trial judge below in having made a 'single order' in apportioning the costs, and recognised that in appropriate cases a single order would more readily facilitate the taxation of costs. The Court stated:[143]

[157] No complaint is made by the appellants about the judge's method of making a single order in apportioning the costs. It was certainly open to his Honour to do so.[144] Under r 63.04, the judge might have awarded costs in relation to particular questions or parts of the proceeding. We think it appropriate however, with respect, to observe that the approach taken by his Honour, of fixing of a certain proportion of a party's costs which should be paid by another party, has much to commend it.

. . .

[159] As his Honour recognised, a single order for costs of the plaintiff's claim 'would the more readily facilitate taxation of costs, which could otherwise become a task of extraordinary complexity.'[145] His Honour's overall award to the defendants of 40% of their costs represented his:[146]

best attempt at synthesis of a series of considerations pertinent to the plaintiffs' claim: The success of some plaintiffs on some causes of action; the failure of some plaintiffs altogether; the success of some defendants altogether; the fact that even the successful plaintiffs failed upon many causes of action; the fact that the causes of action upon which some plaintiffs succeeded represented only a small fraction of the causes of action which were pleaded; the fact that there were very many issues joined upon which the plaintiffs failed, including issues pertinent to most of the causes of action upon which some plaintiffs ultimately succeeded; the fact that the plaintiffs succeeded upon some issues joined even though that did not always mean that a cause of action was established.

[160] Not only did the judge's synthesis of all these factors produce an award which avoided the need for an expensive and complex taxation of costs, but it enabled his Honour to arrive at an assessment which was fair and just in all of the circumstances.[147]

100 In the present case, the Amcor parties submit that if the Court determines it is appropriate to apportion costs, it should do so in a single order, and they seek 'a percentage discount' rather than asking the Court to define categories of costs or issues within the counterclaim where costs would not be awarded.[148] In my view, that approach commends itself as being both reasonable and sensible, and it is one that is likely to accord substantial justice between the parties. Furthermore, I consider that the making of a single order of the kind outlined above is appropriate to further the overarching purpose, and will more readily facilitate the taxation of costs.[149]

101 Given the matters discussed above, the discount to be applied in the present case is not one that is to be arrived at by a mathematical exercise of comparing the number of OME jobs performed pre and post the Deed of Accession, or the amounts claimed by the Holihan parties and the sum of damages ultimately awarded. Rather, my view is that given the substantial success enjoyed by the Holihan parties overall but taking into account (and discounting for) the work necessitated in the pre-trial phase concerning the OME jobs that were performed by the alternative suppliers in the period prior to entry into the Deed of Accession, on which the Holihan parties were not successful, the Holihan parties should be awarded only 70 per cent of their costs of and incidental to the counterclaim, including reserved costs. This figure represents my synthesis of the considerations relevant to the Holihan parties' claim, and in my view, apportioning the costs in that way in a single order acknowledges the relative success of the Holihan parties on the counterclaim while recognising and addressing the comparative success the Amcor parties achieved in defending the claim in respect of the OME jobs that were performed by the alternative suppliers in the period prior to entry into the Deed of Accession.

Should the Holihan parties be awarded their costs on an indemnity basis?

102 It is well established that where a Calderbank offer is made and relied upon, the offeror (here, the Holihan parties) bears the onus of establishing that the rejection of the offer was unreasonable and that a special order for costs should be made.[150]

103 The Holihan parties' contention that the Amcor parties' failure to accept the Calderbank offer before its expiration on 12 January 2008 was 'unreasonable' adopts the legal test that the Court of Appeal in Hazeldene's Chicken Farm [151] described as the 'correct approach'.

104 In Hazeldene's Chicken Farm, the Court of Appeal (Warren CJ, Maxwell P and Harper AJA) made clear that there is no 'presumption' that a party rejecting a Calderbank offer should pay the offeror's costs on an indemnity basis if the offeree received a less favourable result. Rather, the Court stated, the 'correct approach' is to treat the rejection of a Calderbank offer as a matter to 'which the court should have regard when considering whether to order indemnity costs.'[152] The Court then proceeded to review the policy objectives relevant to the exercise of the costs discretion where a Calderbank offer has been made, and their Honours were of the view that 'these competing considerations can be sufficiently accommodated by applying a test of (un) reasonableness'[153] where '[t]he critical question is whether the rejection of the offer was unreasonable in the circumstances.'[154] Their Honours continued, stating:[155]

[24] Of course, deciding whether conduct is "reasonable" or "unreasonable' will always involve matters of judgment and impression. These are questions about which judges might properly arrive at different conclusions. As Gleeson CJ said recently, "unreasonableness is a protean concept".[156] But a test of reasonableness is, we think, entirely appropriate to the exercise of a discretion such as this.

105 Their Honours also expressly recognised that 'the unreasonable refusal of an offer of compromise is, by itself, a proper ground for the award of indemnity costs'.[157]

106 In Hazeldene's Chicken Farm, the Court identified six matters that a court considering a submission that the rejection of a Calderbank offer was unreasonable should ordinarily at least have regard to, being:[158]

(a) the stage of the proceeding at which the offer was received;

(b) the time allowed to the offeree to consider the offer;

(c) the extent of the compromise offered;

(d) the offeree's prospects of success, assessed as at the date of the offer;

(e) the clarity with which the terms of the offer were expressed;

(f) whether the offer foreshadowed an application for an [sic] indemnity costs in the event of the offeree's rejecting it.

107 Subsequently, in Luxmore Pty Ltd v Hydedale Pty Ltd,[159] the Court of Appeal returned to the list of matters identified in Hazeldene's Chicken Farm and made the following further observations:[160]

[11] What was said by this court in Hazeldene's Chicken Farm was meant to be of assistance to judges in approaching an application of this kind made consequent upon the rejection of a Calderbank offer. It would be wrong, however, to regard that decision as having prescribed a list of matters which must be taken into account in every case, such that a party failing to get a special order for costs could complain on appeal if one of the matters listed at [26] of Hazeldene's Chicken Farm was not specifically adverted to. The reasons of the court in Hazeldene's Chicken Farm make clear that this issue is, like every question of costs, quintessentially in the discretion of the trail judge and is to be assessed in the circumstances of the case.

[12] In the ordinary case, it is both appropriate and desirable that a costs question be decided at the conclusion of argument. Rarely will it be necessary for a judge to give detailed reasons for decision adverting to every matter debated in argument. This court will assume, as should the parties, that every matter addressed in argument on costs has been considered. This court will set its face against any proposition which would require judges disposing of questions of costs to give elaborate reasons.

108 Counsel for the Holihan parties addressed each of the six matters identified in Hazeldene's Chicken Farm, and the Amcor parties responded orally and by reference to their written submissions.

(a) the stage of the proceeding at which the offer was received

109 First, as to matter (a), it was said that the Calderbank offer was made before any costs had been incurred by anyone in respect of the counterclaim, the offer having been made before the counterclaim was articulated and filed, but in circumstances where the issues involved 'were within the comprehension and grasp of the Amcor parties at the time.'[161]

110 The Amcor parties responded by observing that the email from the Holihan parties' solicitor dated 13 December 2007, which foreshadowed the bringing of a counterclaim, was sent to junior counsel for the Amcor parties but was not copied to the solicitors for the Amcor parties.[162] In those circumstances, the solicitor for the Amcor parties noted that there was no evidence of the email having been communicated to the solicitors, but even if it were, she submitted there is 'no discussion of cause of action, the parties against whom the counterclaim would (indistinct), the details of the allegations.'[163] Further, the solicitor for the Amcor parties pointed to the timing of the making of the Calderbank offer, emphasising that it was made before the counterclaim had been issued and in circumstances where there was no ability for the Amcor parties to assess any liability that it might entail, because the letter 'fails to articulate the cause of action' and '[f]ails to say against which party such allegations would be made', and 'it doesn't cross-reference [the foreshadowed] counterclaim in any detail at all.'[164] Ms McCudden refuted the notion advanced by counsel for the Holihan parties that an inference should be drawn that the Amcor parties were in a position at that point in time to assess and make an informed decision in respect of the offer, citing in particular the offer of purported mutual releases as lacking clarity about 'what it is precisely Mr Holihan was saying he will release'[165] and which issuing party is being asked to release.

(b) the time allowed to the offeree to consider the offer

111 Secondly, as to matter (b), the Holihan parties contended that even though the offer was made on 17 December 2007, despite the intervention of the Christmas period, there were still two full business weeks available for consideration of the offer before it lapsed on 12 January 2008.

112 In response, the Amcor parties submitted that the offer was communicated on the eve of Christmas, in circumstances where they had no details of the allegations being made, or the parties affected, and 'what is being asked is this broad-brush release for Amcor to abandon all of its right with no clarity as to what he is receiving in return.'[166]

113 Thirdly, as to matter (c), the Holihan parties submitted that the extent of the compromise offered was complete in that they 'offered to give up all of their claims in exchange for withdrawal of the claims against them'[167] and in circumstances where, in light of the Court's findings on the counterclaim, 'there was a significant compromise being offered.'[168]

114 In response, the Amcor parties referred to Chen v Chan,[169] where the Court of Appeal had observed that the critical question in that case was the position of each of the parties as set out in the pleadings at the time of the offer, and they submitted that here, similarly, the Holihan parties' offer should be examined as against the position of all parties as set out in the pleadings on 17 December 2007.[170] In essence, they contended that '[a]ll that was being offered was for the Amcor Parties to walk away from its claims and release the Holihan Parties, and in return the Holihan Parties would release the Amcor Parties from asserted claims not yet issued or detailed'[171] and there was 'no genuine compromise or offer'.[172]

(d) the offeree's prospects of success, assessed as at the date of the offer

115 Fourthly, as to matter (d), while the Holihan parties say that the offeree's prospects of success was a matter entirely within the contemplation of the Amcor parties at the time, they submit that had the Amcor parties turned their mind(s) to the documents, 'it would have been apparent that there was work that had been given to other parties that they were obliged to give to Achilla.'[173] In this regard, the Holihan parties refer to evidence given at the trial of the counterclaim to the effect that Mr Holihan had complained to Mr Nellies about OME work having been given to alternate suppliers rather than to Achilla.

116 The Amcor parties accept that there was evidence given at trial to the effect alleged, but they say that it was 'a leap too far'[174] to expect that, in December 2007, the lawyers acting for the instructors making the informed decision in these proceedings must know what Mr Holihan's allegations of breach would involve. They contended that to do so 'presupposes that a mere reference in an order to any counter claim, or the foreshadowing of formal proceedings being issued in 2007 would necessitate those responsible for the litigation having gone back to search through emails from 2003 and 2004.'[175]

(e) the clarity with which the terms of the offer were expressed

117 When addressing the fifth point, matter (e), the clarity of the terms of the offer, counsel for the Holihan parties submitted that:[176]

. . . this is an offer of the simplest type available; walk away (indistinct), nobody will pay anybody anything. There is no work involved in understanding the terms on which that offer was made.

118 The Amcor parties took issue with the notion that there was clarity and precision in the offer such that it was (as counsel for the Holihan parties contended) within their 'grasp' to determine what the allegations on the counterclaim would be and the reasonableness of the offer. Ms McCudden referred to Chen v Chan and reiterated her submission that without the counterclaim having been presented in the form of a pleading, or at least in the form of a detailed summary, it is simply not open to contend that the Amcor parties' failure to accept the offer was unreasonable.[177]

119 The Amcor parties also submitted that insofar as the Calderbank offer was expressed in terms designed to encourage them to settle all matters and give mutual releases on the basis of a defence filed by the Holihan parties, in which they denied any breaches and contended that the proceeding was misconceived, the assertion that Mr Holihan had provided full and frank answers in their meeting with him and set out the true position before the Amcor parties was simply 'not correct'.[178]

120 Counsel for the Holihan parties responded by taking issue with this submission, by contending that it is 'it is unfair to make an allegation that Mr Holihan was not full and frank, in contravention of [the Calderbank] letter, without putting that evidence on and allowing it to be answered.'[179]

(f) whether the offer foreshadowed an application for indemnity costs in the event of the offeree's rejecting it

121 As to matter (f), whether the offer foreshadowed an application for indemnity costs in the event it was not accepted, counsel for the Holihan parties referred to the final paragraph of the Calderbank offer letter as clearly doing so.

122 During oral submissions, counsel for the Holihan parties acknowledged that Achilla's claim for an overcharge on the cost of the supply of raw materials was not mentioned in the first iteration of the counterclaim.[180] And to the extent that a claim was made in respect of compliance with cl 12.2 of the Second Sale Agreement, counsel for the Holihan parties acknowledged that at the outset the identity of the correct Amcor entity was overlooked, and it was not until after APA was joined as a plaintiff by the Amcor parties that the Holihan parties applied for leave to join APA as a defendant to the counterclaim and plead the breach of the Second Sale Agreement as against it.

123 Notwithstanding these oversights, counsel for the Holihan parties submitted that:[181]

None of that deprives from the force of the submission which is, as between the Amcor parties and the Holihan parties, it was clear from - it was clear that a breach of the supply agreement was the principal subject of the counterclaim.

The fact that - the identities of the parties to that agreement, had the parties to the litigation turned their minds to it properly at that time, would have been clear because everyone was aware of the existence of the deed of accession. . . .

The fact that APA wasn't named as the initial defendant to the counterclaim is, in the context of the Amcor Corporate Group, neither here nor there for reasons that are articulated in our written submissions.

124 In answer to a question from the Court as to why the Holihan parties contend it was 'unreasonable' for the Amcor parties not to accept an offer to compromise the proceeding made in December 2007, in circumstances where the counterclaim had not yet been brought; APA, the entity against which the Holihan parties were ultimately successful, was not a party to the proceeding, and in circumstances where that entity did not receive the Calderbank offer, counsel for the Holihan parties responded by submitting: [182]

MR MAIDEN: (Indistinct), but our submission is that in the circumstances of this case, where the litigation is, in effect, between two groups of corporate entities, the Holihan group of parties and the Amcor Group of parties, and where the exercise that we're engaged in is the exercise of discretion, the court's discretion to do justice between the parties, and where ACB Co Vendor is a remaining party to the counterclaim and will be one of the recipients of costs orders if our submissions are accepted, that it's not necessary or appropriate to be delayed by the question of the specific (indistinct) identities because there is no dispute that APA was an integral part of the group. ACB [Co Vendor] was its wholly owned subsidiary.

It shared a common officer who was the person involved in relevant transaction and it could only have been within the contemplation of Amcor Limited, APA and ACB Co Vendor and those advising them, that the risk to which the group was placed by the proceedings was a real one, and the means of assessing the (indistinct) magnitude of that risk was entirely within its grasp at the time the offer was made and rejected.

125 A little later, counsel for the Holihan parties returned to the point, and continued, submitting:[183]

MR MAIDEN: These matters are all symptomatic of the mutual mistake that the parties laboured under at that time, which was that ACB Co Vendor was the relevant party to the litigation, and not APA. Let me circle back to that point. The principal answer to the way that Your Honour has just put the issue is, the counter claim, as it was first articulated, the counter claim that was issued in mid to late January 2008, is, strictly speaking, irrelevant to this inquiry. And the reason for that is, that counter claim was, as Your Honour points out, not on foot when the offer was made, nor when it lapsed. . . .

So the point is, when the offer was made, and when it lapsed, there was no counter claim on foot, so it matters not how that claim was first articulated. The fact that it was articulated the way that it was in the first instance is a product of a mutual mistake that all of the parties laboured under, and that mistake was manifest not only in that counter claim, but also in the claim that had been levelled by the parties in the first instance. Because of course, at the time that the Amcor parties made their claim on behalf of ACB Co Vendor, ACB Co Vendor no longer had any rights under the second sale agreement.

All of those rights (indistinct) in APA. So it cannot be said that any of the parties was disadvantaged by the fact that we all negotiated, we all dealt on the basis of the same common misapprehension. Because at the end of the day, whether it was APA or ACB Co Vendor, or any other subsidiary of Amcor Ltd, the fact is, it was the Amcor Group with whom we were dealing. It was the same solicitors, it was the same controlling officers, and everybody was aware of the salient facts.

. . .

MR MAIDEN: The fundamental point is this one. It is, in our submission, of no moment, though it is quite correct that APA was not a party to the counter claim as initially instituted, nor was it a named recipient of the Calderbank letter. The fact is, all of the parties who are before Your Honour now were aware at the time of the litigation in which the offer was made, the subject matter which the proposed counter claim was going to cover . . .

Consideration and disposition - no special costs order should be made

126 Having considered all of the arguments raised by the respective parties, I am not satisfied that it was 'unreasonable' for the Amcor parties not to accept (and thereby effectively reject) the Calderbank offer the Holihan parties made in December 2007 to compromise the proceeding.

127 First, when regard is had to the stage of the proceeding at which the offer was received, it will be recalled that the Calderbank offer was made on 17 December 2007, shortly after the directions hearing held before Osborn J on 14 December 2007. At that point in time, while a counterclaim had been foreshadowed by the Holihan parties, under the orders made by Osborn J any counterclaim was not required to be filed and served on the Amcor parties until 21 January 2008. In circumstances where the Calderbank offer was expressed to remain open for acceptance until 12 January 2008, when it would lapse, any response from the Amcor parties was required to be made in advance of them being served with any such counterclaim, and without them having any articulation of the proposed claims or understanding of the basis on which the counterclaim was advanced, and against which entities, or the nature of the relief sought.

128 I do not accept the submission made by the Holihan parties to the effect that an inference should be drawn that the Amcor parties were in a position at that point in time to assess and make an informed decision in respect of the Calderbank offer. In my view, in order for the Amcor parties to be able to consider and respond in any meaningful way to the offer, it was relevant for them to know whether or not a counterclaim was being pursued by the Holihan parties, and if so, which ones, and for the Amcor parties to be apprised of the details of the counterclaim, including its alleged basis and the relief sought.

129 Secondly, with the Calderbank offer having been made in the days leading up to the traditional Christmas vacation, and shortly after the parties had agreed upon the timetable for completion of the procedural steps ordered by Osborn J, requiring the delivery of any requests for (and provision of) further and better particulars and for each party to make discovery etc, the short period of time allowed to the offeree to consider the offer was not, in my view, conducive to eliciting a meaningful response.

130 Thirdly, the fact that no counterclaim had been served at that point would likely have exacerbated the difficulty the Amcor parties faced in ascertaining and considering the extent of the compromise offered and assessing their prospects of success, as at the date of the offer. The offer set out in the letter from the Holihan parties' solicitor was framed in terms of a proposal:

. . . to settle all matters between Amcor and [the Holihan parties], including the proceedings, on the following basis:

1. The proceedings stand dismissed as between our respective clients;
2. Parties enter into mutual releases whereby they release each other in respect of all matters arising out of and in respect of the proceedings; and
3. The parties bear their own costs of and incidental to the proceedings.

131 Absent the delivery of a properly pleaded counterclaim, it is unclear what the reference to settling 'all matters between Amcor and [the Holihan parties]' would entail, especially in circumstances where APA, the entity against which the Holihan parties were ultimately successful, was not at that stage a party to the proceeding.

132 Further, the terms in which the Calderbank offer was expressed did not clarify or convey the gist of what the reference 'to all matters between Amcor and [the Holihan parties]' connoted. And the proposal that the parties would enter into 'mutual releases' whereby they would 'release each other in respect of all matters arising out of and in respect of the proceedings' did not operate to supply the detail that was missing. Further, the acknowledgment by the Holihan parties that at the time the offer was made neither they nor the Amcor parties had adverted to the separate position of APA as applied following entry into the Deed of Accession in March 2005, such that the parties were labouring under 'the mutual mistake . . . which was that ACB Co Vendor was the relevant party to the litigation, and not APA',[184] further demonstrates the lack of clarity about what the Calderbank offer entailed and precisely whom it was envisaged would enter into the 'mutual releases'.

133 In Chen v Chan, the Court of Appeal observed[185] that whether the rejection of the offer is unreasonable will often depend as much upon the circumstances surrounding the offer at the time it was made as upon the terms of the offer and the end result. In the present case, when the Holihan parties' Calderbank offer is viewed in the circumstances prevailing at the time it was made and in the context of the proceeding and the stage which the proceeding had reached, the offer lacked the clarity and detail that an offeree ordinarily would require in order to give proper consideration to the offer and make an informed decision in respect of it. In my view, it was not unreasonable for the Amcor parties not to accept the Holihan parties' Calderbank offer, and accordingly, no special costs order of the kind sought should be made.

Orders made by Osborn J on 11 December 2007 - does the existence of the undertaking given by the Amcor parties on 11 December 2007 bear upon the exercise of the Court's discretion and the formulation of the appropriate form of order as to costs to be made?

134 The Holihan parties' Calderbank offer was made following a directions hearing held before Osborn J on 14 December 2007.

135 The background to the directions hearing was that on 22 and 23 October 2007 his Honour heard two applications, being:

(a) an application made by the Amcor parties that the principal proceeding and the (related) Hodgson proceeding (No 9420 of 2004) be heard together and that the evidence in each proceeding be evidence and discovery in the other proceeding; and

(b) a cross-vesting application made by the Messrs Barnes and Holihan, in their capacity as defendants to the principal proceeding, for the principal proceeding to be transferred to New South Wales.

136 The Amcor parties submitted that the principal proceeding should be heard together with the Hodgson proceeding because 'the interrelationship of the matters in issue demands as a matter of justice that this should occur.'[186] On the cross-vesting application, counsel for Barnes and Holihan and entities associated with them submitted in essence, that the principal proceeding should be cross-vested to New South Wales 'because of the intimate connection between its subject matter and that jurisdiction' and they also raised 'a series of consequential matters going to the relative convenience of New South Wales as a forum.[187]

137 His Honour found that it was 'sufficiently plain' that the Hodgson proceeding and the principal proceeding 'raise interconnected allegations and issues to such a degree that there is a real likelihood of significant issues of fact and law being common to both proceedings.'[188] Accordingly, he said this likelihood in turn gives rise to a probability that:[189]

(a) there will be a duplication of resources expended in the two proceedings unless they are heard together;

(b) there will be a waste of judicial resources unless they are heard together; and

(c) there is a prospect of different findings in different jurisdictions with respect to common issues. This prospect s contrary to the public interest in maintaining confidence in and respect for the authority of the courts.

138 His Honour also expressed doubts about whether 'Amcor's claims for equitable relief against Hodgson, Barnes and Holihan [could] be satisfactorily split between two jurisdictions.'[190]

139 In dealing with the Holihan parties' submission that the claim made against Mr Holihan in the principal proceeding was not connected to the facts in issue in the Hodgson proceeding, his Honour did not accept that was so. He noted that the claim made against Mr Holihan 'is expressly pleaded by way of allegations that Holihan acted jointly with Hodgson and was party to breaches by Hodgson of his duties to Amcor' and '[t]he counterclaim by Amcor in the Hodgson proceeding is concerned in part with the sale of business forming the subject matter of Amcor's subsequent claim against Holihan.'[191] Further, his Honour accepted the Amcor parties' submission that if it is appropriate to proceed in Melbourne against Mr Barnes, then it also follows that Mr Holihan should also be the subject of allegations in this Court.[192]

140 When considering the submission by the defendants that New South Wales was the convenient forum, Osborn J accepted that factors such as the fact that the subject matter of the principal proceeding was concerned with transactions in New South Wales, the residency of the defendants is in New South Wales and the businesses they carry on operate there, and the relevant sale negotiations took place there, supported the view that New South Wales is the convenient forum for the principal proceeding. His Honour also accepted that 'it would be seriously inconvenient for Holihan personally to be absent from his work for any extended period of time and that if he were required to attend a trial in Melbourne for up to a month this may impact adversely on the third defendant's business'[193] and like considerations would apply to Mr Barnes.

141 Against that background, having weighed all of the relevant matters together, Osborn J determined that 'on balance the Amcor proceeding should remain in Victoria and should be managed and heard jointly with the Hodgson proceeding in the interests of justice.'[194] But his Honour continued, to make the following observations in relation to the issue of costs:[195]

[64] Nevertheless, I accept that the potential consequences for the defendants of trial in Melbourne are such that it is in the interests of justice that the price for dismissing the cross-vesting applications and hearing the Amcor proceeding in Melbourne should be the giving of the usual undertaking as to damages. The defendants have satisfied me that the potential for loss to them arising from this venue goes beyond what would ordinarily be payable by way of a costs order in the event that they are ultimately successful.

[65] Accordingly, if such an undertaking is given, I propose to order that subject to further order the Amcor proceeding be heard together with the Hodgson proceeding and that both matters be listed together for further directions before a judge nominated by the Listing Master.

[66] Further, upon the giving of an undertaking, I will dismiss both the summonses seeking the transfer of the Amcor proceeding to New South Wales.

142 Orders were made accordingly by his Honour following publication of his ruling on 11 December 2007,[196] and the matter was listed for a directions hearing on 14 December 2007. On the afternoon prior to the directions hearing, the solicitor for the Holihan parties sent an email to representatives of the other parties informing them that the Holihan parties 'wish to file a Counterclaim in the proceeding' and noting that an order to facilitate that course had been included in the timetable contained in the (attached) minute of proposed orders.[197] At the directions hearing, orders were made by consent, including an order that '[a]ny counterclaim to be filed and served by 4.00pm on 21 January 2008.'[198]

143 During the hearing as to costs on 6 May 2020, as neither party's written outlines of submissions had touched upon any possible relevance of Osborn J's orders, the Court raised with them the issue of whether there is any potential for the existence of the undertaking given by the Amcor parties (recorded in the orders Osborn J made on 11 December 2007) to bear upon the formulation of the appropriate form of order as to costs to be made in the exercise of the Court's discretion.

144 Counsel for the Holihan parties responded by informing the Court that during the hearing they had been investigating this undertaking point and his memory had been refreshed to some extent. So far as he could recall, a summons was issued in April 2013, seeking to enforce the undertaking and recover expenses that Mr Holihan had incurred as a result of having to run the principal trial before Vickery J in Melbourne, and later orders were made 'dismissing the application on the basis that the parties had agreed an outcome'. Mr Maiden QC said he didn't want to say any more about that agreement because he didn't know 'if that was a confidential settlement or not.'[199] He added:[200]

The short point is we will need to determine whether or not that undertaking has any further application beyond the order made by Justice Vickery, but I think Your Honour can at least for the interim proceed on the assumption that the parties will say that it doesn't affect the exercise of your discretion now, but don't take that as a final submission, we will come back to you.

145 The solicitor for the Amcor parties was unable to assist the Court on this point but informed the Court that they would work with the solicitors for the Holihan parties to address the issue.[201] In those circumstances, the Court indicated that it would be assisted if the respective parties could make enquiries and consult, and then revert to the Court within a short time after the conclusion of the hearing.

146 By email sent on 2 June 2020, the solicitors for the Holihan parties wrote to the Court and to the Amcor parties, stating in relation to the undertaking as follows:[202]

Undertaking

The Holihan parties ask the Court to grant them liberty to apply to enforce the undertaking given by the Amcor Parties on 11 December 2007 in respect of the Counterclaim.

147 No further information about the undertaking, or the circumstances in which it was given were provided to the Court.

148 The Court responded later that day, asking that the parties provide the further information the Court had requested during the hearing.

149 The solicitors for the Holihan parties responded further, by email dated 19 June 2020, indicating that they were awaiting a response from the Amcor parties, but remained of the view that the existence of the undertaking does not affect the exercise of the Court's discretion as to costs. They reiterated that the Holihan parties seek an order for liberty to apply to seek to enforce the undertaking in respect of the counterclaim.

150 Subsequently, by email sent on 13 July 2020, the solicitors for the Amcor parties provided a substantive response to the Court and the Holihan parties. Therein they informed the Court that while they had made efforts to obtain the transcript of the hearing conducted on 11 December 2007, at which the undertaking was discussed and provided by counsel for Amcor, neither the VGRS (the relevant transcriber for the hearing) nor the Court Registry was able to locate a copy. Further, they stated:[203]

We therefore wish to confirm the following matters with her Honour and note that this email has also been previously shown to Mills Oakley.

From the terms of the 11 December 2007 orders (copy attached) and paragraph 64 of the relevant judgment of Justice Osborne [sic] (copy attached) it does appear the undertaking as to damages was to sit outside the discretion as to costs.

His Honour Justice Osbourne [sic], in dismissing the cross vesting application of Mr Holihan and Mr Barnes, notes at paragraph 64 of the Judgment that "..the defendants have satisfied me that the potential for loss to them arising from this venue goes beyond what would ordinarily be payable by way of a costs order in the event they are ultimately successful".

There was a hearing on 11 December 2007 where the undertaking was sought and provided (for which transcript has not been located).

The undertaking as to damages is then set out in the Other Business section of the 11 December 2007 orders.

On this material we accept that the undertaking (if still applicable) is separate to the question of any costs orders her Honour may make in the exercise of her discretion.

If the Holihan Parties were to bring a separate application pursuant to that Undertaking it would have to be dealt with separately. Such material has not been filed at this date and I note that in confirming this position the Amcor Parties do so in full reservation of all rights including whether the undertaking has any further operation.

Again we apologise the historical transcript has not been located but trust the above email assists her Honour.

151 Against that background, the position is that both the Holihan parties and the Amcor parties are of the view that the existence of the undertaking given by the Amcor parties on 11 December 2007 does not affect the exercise of the Court's discretion as to costs.

152 However, since the hearing as to costs took place the Holihan parties have informed the Court that they wish to make application for liberty to apply to enforce the undertaking given by the Amcor parties on 11 December 2007 in respect of the counterclaim. Any such application should be made on notice to the Amcor parties, by summons, supported by appropriate affidavit material.

What orders as to costs should be made on the Amcor parties' cross-claim?

153 During oral submissions Ms McCudden confirmed that the Amcor parties were not seeking any apportionment or discount of the Holihan parties' costs on the cross-claim.[204]

154 In those circumstances, having found that it was not unreasonable for the Amcor parties not to accept the Holihan parties' Calderbank offer, and accordingly, that no special costs order should be made, I propose to order that the Amcor parties pay the (relevant) Holihan parties' costs of and incidental to the cross-claim, including reserved costs, on the standard basis.

155 For the reasons set out above, I have determined the issues as to costs as follows:

156 As I have found that it was not unreasonable for the Amcor parties not to accept the Holihan parties' Calderbank offer, no special costs order should be made.

Costs order on the Holihan parties' counterclaim

157 I am satisfied that the Holihan parties' costs of the counterclaim should be apportioned or discounted and fixed in a single order. Having found that no special costs order should be made, the Amcor parties should be ordered to pay 70 per cent of the (relevant) Holihan parties' costs of and incidental to the counterclaim, including reserved costs, on the standard basis.

158 Having found that no special costs order should be made, the Amcor parties should be ordered to pay the (relevant) Holihan parties' costs of and incidental to the cross-claim, including reserved costs, on the standard basis.

159 I will hear from the parties as to the precise form of the orders to be made.

Annexure 1: Parties' agreed procedural chronology

Orders by Osborn J - Barnes and Holihan proceedings (Barnes Proceeding 8181 of 2007) to be heard together with the Hodgson Proceeding (9420 of 2004). The defendant's application to have the matter heard in NSW was dismissed.

Achilla Counterclaim. The OME breach was pleaded. A breach regarding failure to verify D&D costing was pleaded (i.e. not the overcharge breach).

CMM[206] at paragraph [5] (Exhibit CMM-1)

Cf RAJ at [3] (Exhibit JCJH-23) (which notes 14 December 2007)

Parties were engaged in discovery in both the Barnes and Hodgson Proceedings.

Amcor Parties served request for further and better particulars, including of OME breaches

RAJ[208] at paragraph [12] (Exhibit JC JH-23)

Achilla provided particulars of its counterclaim in answer to a request.

Amcor Limited and ACB Co Vendor filed an amended statement of claim in the Barnes Proceeding.

The parties were engaged in discovery and dealing with Amcor's amendments to its defence in the Hodgson proceeding and its statement of claim in the Barnes proceeding.

Amcor applied to amend pleadings in both proceedings by seeking to join APA as plaintiff and to plead the Deed of Accession.

Emerton J delivered reasons in relation to Amcor's application for leave to amend in the Barnes proceeding. Leave to amend was granted. Among other things, the amendments introduced APA as a party by reason of the Deed of Accession dated 21 March 2005.

Amcor Parties filed further amended statement of claim in the Barnes Proceeding, joining APA as plaintiff and pleading the Deed of Accession.

MO wrote to Corrs advising that Achilla intended to seek leave at the directions hearing on 1 October 2010 to make amendments to the Counterclaim relating to the operation of the Deed of Accession.

MO wrote to Corrs asking them to confirm they would file an amended defence to the counterclaim and make discovery, including in relation to the OME breach.

Emerton J made orders regarding Barnes Proceeding and the Achilla counterclaim. Among other things, her Honour granted Achilla leave to join APA as a defendant to its counterclaim and amend its counterclaim by 4 October 2010, and made a discovery order requiring the Amcor Parties to file and serve an affidavit of documents in relation to the counterclaim (order 10).

• Pleaded as against APA
• Pleaded the Deed of Accession
• Amended the D&D breach to be more precise - pleaded overcharge.

Corrs wrote to MO in relation to counterclaim, seeking further information and documents referred to in counterclaim

First Le Breton subpoena issued at request of the Holihan Parties.

First Thompsons subpoena issued at request of the Holihan Parties.

Letter from MO to Corrs regarding discovery (including of OME sales).

Letter from MO to Corrs regarding discovery (including of OME sales, and providing for the first time sample purchase orders and tax invoice).

Letter from Corrs to MO regarding discovery (including of OME sales).

Letter from MO to Corrs regarding discovery (including of OME sales).

Letter from Corrs to MO regarding discovery (including of OME sales).

Letter from MO to Corrs regarding discovery (including of OME sales).

Letter from Corrs to MO regarding discovery (including of OME sales).

Letter from MO to Corrs regarding discovery (including of OME sales).

Hardwick affidavit on behalf of Achilla filed in relation to alleged inadequacy of Amcor discovery.

Directions hearing / discovery application before Vickery J, at which the following was discussed:

• The Amcor Parties' obligations to discover documents from the suppliers
• The provision of particulars by the Holihan Parties.

Letter from MO to Corrs regarding discovery (including of OME sales).

Smithwick affidavit sworn on behalf of Amcor Parties in relation to discovery application. Among other things, exhibited "summary spreadsheets" relating to five OME suppliers.

Further return of Holihan Parties' discovery application (adjourned from 19 April 2019). Among other things, Vickery J raised the issue of splitting liability and quantum on the counterclaim.

Further return of Holihan Parties' discovery application (adjourned from 6 May 2011).

Transcript of hearing before Vickery J records, among other things:

• his Honour proposed, by email, to conduct the trial (then listed to commence on 16 May 2011) in two phases: the first between 16 May and 30 June 2011, and the second between 1 August to 10 August 2011 (page 3 of the transcript);
• it was also proposed that the Achilla counterclaim and final addresses be heard in the second phase (page 3 of transcript);
• as a result of discussion between his Honour and counsel, the second phase was brought forward to 25 July to 2 August 2011 (pages 8 to 9 of transcript);
• it was not then contemplated that a liability trial of the Achilla counterclaim would be 'a long matter at all'. Vickery J said that 'two days should see it out. It's a very limited and confined issue' (pages 10 to 11 of transcript);
• the Holihan Parties sought further discovery from Amcor;
• The Amcor Parties were seeking further material from Achilla and particulars as to what claims Achilla was making (page 26 of transcript.)

• splitting the trial of the question of quantification of loss on the counterclaim: order 5;
• listing the trial as to liability on the counterclaim for 25 and 26 July 2011 on an estimate of two days: order 7(a);
• ordering that the Amcor Parties make discovery in relation to the OME breach (including summary spreadsheets) and the overcharge breach: orders 3 and 4;
• ordering Achilla to file further and better particulars of the alleged breaches of the agreement referred to in the Achilla Counterclaim: order 9.

Phase 1 lasted until 29 June 2011, over 27 sitting days, the transcript of which numbered 3440 pages.

Vickey J raised the possibility of deferring the hearing of the counterclaim and counsel for Holihan Parties stated that they would take instructions.

JCH at paragraph [38] (Exhibit JCJH- 20, Transcript p 365-366)

Vickey J again raised the possibility of deferring the hearing of the counterclaim, noting (among other things):

HIS HONOUR: 'The regrettable position is that issues have expanded in the case rather than contracted ... which puts the Achilla counterclaim in a difficult position in terms of hearing it in that period in late July when we return from the vacation and I'm afraid I'll have to direct that the Achilla counterclaim be put off to another time. ...'

JCH at paragraph [39] (Exhibit JCJH- 21, Transcript p 2939, line 14)

Vickey J again raised the possibility of deferring the hearing of the counterclaim, noting (among other things):

MR RIORDAN: 'The other matter, I think, was the counterclaim where Your Honour has indicated that that should go off.'

MR RIORDAN: 'We've read the play to Your Honour and we accept that it's sensible and it should go off. Frankly we think it should go off probably until Your Honour's determination of this matter.'

HIS HONOUR: 'Yes, all right. I'll make such a direction then, that all matters relating to the Achilla counterclaim be adjourned sine die.'

• an order that the Achilla counterclaim be adjourned for further directions to a date to be fixed and vacating the trial date for the counterclaim of 25 July 2011 (order 7);
• an order vacating, inter alia, orders 5 and 7 of the orders of 10 May 2011 (order 8); and
• adjourning the further hearing of the Principal Trial to 25 July 2011 (order 10).

'Phase 2' occupied five sitting days, taking the transcript to a total of 3,991 pages.

Vickery J delivered reasons for judgment in the Principal Trial.

The parties were engaged with Amcor's appeals and Amcor's application for leave to amend, and account of profit issues.

Orders made by Vickery J for procedural steps in the counterclaim, including orders:

• requiring Amcor Parties to make discovery, including the summary spreadsheets (paragraphs 9-11 of the order);
• requiring Achilla to make further discovery of the issues in the counterclaim (order 14);
• requiring Achilla to file further particulars of its counterclaim, as well as a schedule setting out all material facts and conclusions of law on which the allegations made in paragraph 6 of the amended counterclaim were based (order 12);
• requiring Amcor Parties to file a copy of the schedule setting out all material facts and conclusions of law relied on in response to the schedule filed by Achilla (order 13).

Orders made by Vickery J adjourning the hearing of the counterclaim from 4 June 2012 to 29 October 2012 on an estimate of 2-3 days.

Amcor Parties made discovery of invoices etc. pursuant to 10 May 2012 orders.

Amcor Parties made discovery of summary spreadsheets pursuant to 10 May 2012 orders.

Further subpoena to Le Breton issued at request of Holihan Parties.

The Holihan Parties filed and served further particulars of counterclaim (as to overcharge).

The Holihan Parties filed and served particulars of OME breach.

Vickery J made various further orders including for:

• Extending time for Amcor Parties' particulars in response (reply schedule pursuant to order 13 of 10 May orders) (order 1);
• Exchange of proposed amended pleadings (orders 2 to 6);
• Extending time for Achilla discovery (order 7);
• Achilla to file its evidence by 26 October (order 9);
• Amcor to then file its statements by 9 November (order 11); and
• Adjourning start of trial from 29 October 2012 to 19 November 2012 with a revised 5-day estimate (order 12).

Amcor Parties' response to the Holihan Parties' 21 August 2012 particulars.

The Amcor Parties alleged, for the first time, that purchases made by Amcor Displays Pty Ltd were not within the supply agreement.

Amended defence to second amended counterclaim of Achilla.

Holihan Parties served amended particulars of OME breach.

Hearing. Trial date vacated at Amcor's application with costs of the application awarded against Achilla.

• order requiring Amcor to provide an affidavit as to its discovery re production orders
• order requiring further discovery and affidavit from Achilla
• order for Corrs to uplift and inspect material produced on subpoenas
• order vacating the trial date scheduled for 19 November
• Amcor Parties' costs of the adjournment of the trial to be paid by Achilla.

Amcor Parties made an affidavit regarding discovery of production orders.

Directions hearing and order that Amcor Parties make discovery of production orders etc. with respect to the supplies referred to in Achilla's Amended Further and Better Particulars of Counterclaim filed 21 August 2012.

Order by Vickery J in the Barnes Proceeding and the Achilla counterclaim, including in respect of the counterclaim:

• requiring Amcor make discovery, and relating to discovery of information on the PICK system (order 7, 8 and 9).
• an order requiring Achilla to file affidavits in relation to its own discovery, and a revised, draft Scott schedule by 8 February 2013 (order 14).

Amcor filed affidavits pursuant to discovery order.

Amcor filed a further affidavit pursuant to discovery order.

Mills Oakley wrote letter to Corrs advising certain invoices had been overlooked by Achilla.

Achilla served draft liability schedule and quantum schedule on 8 February 2013 in accordance with order 14 of the 27 November orders.

Achilla subsequently provided "final" liability particulars on 18 February 2013 and quantum particulars on or around 15 February.

Order by Vickery J regarding particulars of liability.

• adding ACB Australia Pty Ltd as plaintiff;
• granting Achilla leave to amend its counterclaim, and ordering that the costs of the amendment be costs in the proceeding

Third amended counterclaim of the fourth defendant. Pleaded (a) implied contract; (b) conventional estoppel; (c) charge

The Holihan Parties filed and served liability particulars of paragraph 6 of the third amended counterclaim.

The Amcor Parties filed and served their response to the Holihan Parties' quantum particulars (Schedule B to amended defence).

The Amcor Parties filed and served their response to the Holihan Parties' liability particulars of paragraph 6 of the third amended counterclaim

Amended defence to third amended counterclaim (pursuant to 21 June 2013 order of Vickery J).

This is the first time the Amcor Parties pleaded their cross-claim.

Amended defence to third amended counterclaim of the fourth defendant and cross-claim.

(filed pursuant to order of Hansen & Tate JJA on 13 September 2013).

Amended reply to amended defence to third amended counterclaim and defence to cross-claim.

Amcor Parties foreshadowed an application to stay the counterclaim pending the hearing and determination of the appeals.

Directions hearing adjourned sine die to allow matter to go before the Court of Appeal.

Court of Appeal refused Amcor Parties' application to have the appeals heard and determined first, before the counterclaim.

Directions hearing in proceeding. Orders were made by Vickery J for, among other things:

• Holihan Parties have leave to file and serve a response to the Amcor Parties Response to Liability of Particulars (order 1);
• the filing and service of the Holihan Parties' lay witness statements on their counterclaim by 10 October 2014 (order 4);
• the filing and service of the Amcor Parties' witness statements on the counterclaim and the cross-claim by 15 December 2014 (order 6);
• the filing and service of all expert reports upon which the Holihan Parties rely by 26 September 2014 (order 20);
• the filing and service of all expert reports upon which the Amcor Parties rely by 15 December 2014 (order 21);
• an order pursuant to s 50 of the Civil Procedure Act 2010 that the parties consult, prepare and deliver to the trial judge a statement of issues that, among other things, set out all of the issues arising from the pleadings by 6 February 2015 (order 22).

The Holihan Parties filed and served an expert report of Mr Meredith (regarding the quantum of loss and damage on the counterclaim).

• witness statements of Mr Cichonski, Mr Daaboul, Mr Silva and Mr Whitechurch; and
• statements of the substance of the evidence expected to be given by Mr Borg, Mr Dailey, Mr Joyce, Mr Kent, Mr Kierdal, Mr Le Breton, Mr Manser, Mr Pellizzari, Mr Prasad and Mr Ward.

CB 255, 265, 282, 285, 294, 295, 303, 307, 310, 311, 314, 315, 316 and 317

The Holihan Parties filed and served a statement of the substance of the evidence expected to be given by Mr Pribilovics.

Amcor Parties filed further and better particulars of the amended defence to counterclaim.

The Holihan Parties filed and served a witness statement of Mr Papadimatos.

The Holihan Parties filed and served a witness statement of Mr Holihan.

Due date for Amcor Parties' lay and expert evidence.

The Amcor Parties filed and served witness statements of Ms Gerke, Mr Guy, Mr MacPhail, Ms McPherson and Mr Powell and a statement of the substance of expected evidence to be given by Mr Garcia.

The Amcor Parties filed and served a witness statement of Mr Roberts.

Order by Vickery J, including order setting the matter down for trial on 18 May 2015 on an estimated duration of 4 weeks and granting the Holihan Parties leave to further amend counterclaim.

The Amcor Parties filed and served a witness statement of Mr Phillips.

The Amcor Parties served an expert report by way of reply to Mr Meredith's (the report is dated 26 February 2015).

The Amcor Parties filed and served a statement of the substance of expected evidence to be given by Mr Nellies.

Orders were made in the proceeding, including that :

• the Holihan Parties file and serve any witness statements in reply and on the cross- claim by 20 March 2015 (order 3),
• pursuant to s 50 of the Civil Procedure Act 2010, the trial of the counterclaim be conducted by reference to the statement of issues annexed to the order (order 4).

Holihan Parties filed and served witness statement of Mr Holihan by way of reply and on the cross- claim.

The Holihan Parties served a further expert report of Mr Meredith (in relation to the cross-claim).

The Holihan Parties served their objections to the Amcor Parties' evidence. They also advised that they were ready to exchange opening outlines.

Annexure 2: Parties' agreed post-trial chronology (post-Reasons)

[2016] VSC 707

This hearing followed the Court's suggestion that the parties consult regarding the jobs that might remain subject to Achilla's claim in light of the Court's findings in [2016] VSC 707.

In their written submissions filed 26.03.17, the Holihan Parties submitted that, among other issues, the issue regarding how to quantify the effect of the Amcor Displays work on Achilla's entitlement to compensation (at [7(b)]) should be determined prior to the referral of jobs to an expert for assessment having regard to the Court's reasons and findings (at [5]).

The Holihan parties noted that compensation for Amcor Displays was not to be determined on a job-by-job basis (at [24]) and proposed two options for determining the compensation payable for that body of work. Those options (at [25(a)] and [25(b)]) were the two 'fall-back' options that Achilla proposed at the hearing on 08.02.19.

At the mention on 05.04.17, Sloss J stated, inter alia:

[G]iven that I have found that on a business as usual construction of the clause 12.2 obligation, Achilla would likely have received some small amount of Amcor Displays work of the kind the ACB Business had been doing for it prior to the sale, save for circumstances where the relevant exception was enlivened clause 12.2 entitled Achilla or the ACB Business to continue to receive a small amount of the same sort of Amcor Displays work."

So there has to be, first of all, an identification of what that work was prior to the sale, and that won't be done by looking at the 172,000 as opposed to the 2.6m. ...you have to first of all identify the work as something that on a business as usual basis would've been given to Achilla - given to the ACB Business that Achilla can then say it was entitled to perform after the sale. ... you've got to go through the invoices and look at the work and see what was involved, and you've got to be able to demonstrate that on a business as usual basis that work was capable of being done, both before the sale and after the sale on a business as usual basis by the business. ...I am not suggesting it's easy but I think the work has to be done before we can talk about the detail of any particular job. ... I think the work has to be done on a job by job basis for everything that's in contention before we give consideration to referring it out to anyone.

Affidavit of Edwin Adrian Fah sworn in the proceeding on 14 December 2017 (Second Fah Affidavit) at [5]-[6]

Orders made for, in summary, the filing and service of details of claim and response in relation to jobs performed by alternative suppliers over the period 27 September 2005 to 31 July 2008.

12.04.17 orders exhibited to the affidavit of Christiana Maree McCudden made 8 April 2020 (McCudden Affidavit) at CMM-18

The Holihan parties filed and served "Details of Claim" in relation to jobs performed by alternative suppliers over the claim period.

Orders made (by consent) amending the timetable set by the orders made on 12 April 2017 and listing the matter for mention on 8 September 2017 (at 10am).

The Holihan parties filed their "rectified" Details of Claim for jobs performed by alternative suppliers over the claim period.

The Amcor parties filed and served their responses to the Holihan parties' rectified Details of Claim.

Mention of appeals / application for leave to appeal in Court of Appeal.

Affidavit of Janet Mary Whiting sworn in the proceeding on 20 November 2017 (Whiting Affidavit) at [24]

Orders made, in summary, extending the due date for the Holihan parties' replies to the Amcor parties' responses to claims and listing the matter for mention on 20 October 2017.

Consent orders extending the due date for the Holihan parties' replies to the Amcor parties' Details of Response to claims and listing the matter for mention on 24 November 2017.

Mention of appeals / application for leave to appeal in Court of Appeal.

The Holihan parties wrote to the Amcor parties and suggested that three issues should be dealt with in advance of any order 50 reference being made. The Holihan parties also provided the Amcor parties with a minute of proposed orders for the reference.

Affidavit of Edwin Adrian Fah sworn in the proceeding on 23 November 2017 (First Fah Affidavit) at [5].

Holihan parties filed and served Details of Reply to Amcor parties' Details of Response.

This was in the form of consolidated claim documents containing (1) Achilla's Details of Claim; (2) the Amcor parties' Details of Objection; and (3) Achilla's Details of Reply.

The Amcor parties filed and served a summons seeking, inter alia, final orders answering the questions raised in the parties' Joint Statement of Issues. The summons was supported by the Whiting Affidavit.

• for the Holihan parties to file and serve any evidence in opposition to the Amcor parties' summons and in support of their application for "Referral Directions" as foreshadowed in the 15 November 2017 letter from Mills Oakley to Gilbert + Tobin;
• for the filing and service of submissions by the parties in relation to the summons and the "Referral Directions"; and
• listing the summons and "Referral Directions" for hearing on 29 January 2018.

The Amcor parties informed the Holihan parties that they consent to the appointment of Mr Ronald Mines as Special Referee.

The Holihan parties proposed a "drip feed" approach to the reference, with some 96 jobs to be decided first, before Sloss J delivers her reasons in relation to the Referral Directions.

Letter from Gilbert + Tobin to Mills Oakley proposing that the mention listed for 15 December 2017 be adjourned.

Contested hearing in relation to the Referral Directions and the Amcor parties' 20 November 2017 summons.

Amcor Ltd v Barnes (Ruling No. 1) [2018] VSC 21 (re Amcor parties' summons).

Mention before Sloss J. Orders made in relation to first tranche of Order 50 reference.

Amcor Ltd & Ors v Barnes & Ors (Ruling No. 2) [2018] VSC 137 (re Referral Directions).

Orders made for, inter alia, the conduct of the second tranche of the Order 50 reference and the preparation of Revised Claim Documents taking into account Ruling No. 2.

Orders made extending the timetable for the preparation of Revised Claim Documents.

Contested hearing re "Amcor Displays Objection" and adoption of referee's report.

Amcor Ltd & Ors v Barnes & Ors (Ruling No. 2) [2019] VSC 393 (regarding Amcor Displays' Objection and reopening).

(FORMERLY AMCOR PACKAGING (AUSTRALIA) PTY LTD) (ACN 004 275 165)

SPECIALTY PACKAGING GROUP PTY LTD (FORMERLY SERVICE CONTAINERS PTY LTD) (ACN 005 319 666)

AUSTRALIAN CORRUGATED BOX CO PTY LTD (FORMERLY ACHILLA PTY LTD)

AUSTRALIAN CORRUGATED BOX CO PTY LTD (FORMERLY ACHILLA PTY LTD)

(FORMERLY AMCOR PACKAGING (AUSTRALIA) PTY LTD) (ACN 004 275 165)

(FORMERLY AMCOR PACKAGING (AUSTRALIA) PTY LTD) (ACN 004 275 165)

AUSTRALIAN CORRUGATED BOX CO PTY LTD (FORMERLY ACHILLA PTY LTD)

[1] Much of this background summary first appeared in Ruling No 3, but it is reproduced here for convenience.

[3] The relevant commencement date for the Claim Period was reached by agreement between the parties following delivery of the Reasons.

[4] The relevant exception or 'carve out' is contained in clause 12.2 of the Asset Sale Deed dated 2 June 2003 (described in the Reasons as the 'Second Sale Agreement') at CB1492. The carve out is expressed in the following terms: _'_other than due to Achilla's inability to supply consistently and on a basis which is commercial and reasonably acceptable in terms of price, quality and availability'.

[5] [2018] VSC 21 ('Ruling No 1').

[6] See paragraph 7(a) of Annexure B to the 6 February 2018 orders.

[7] See Annexure A (Letter of Instruction to Special Referee) to the 6 February 2018 orders.

[8] [2018] VSC 137 ('Ruling No 2').

[9] Mines Report, reference overview dated 2 November 2018, at p 1.

[10] [2019] VSC 393 ('Ruling No 3').

[13] Amcor Ltd & Ors v Barnes & Ors [2016] VSC 707.

[14] Amcor Limited & Ors v Barnes & Ors (Ruling No 3) [2019] VSC 393.

[15] See Holihan parties' outline of submissions dated 11 November 2019 and Holihan parties' outline of submissions in reply dated 18 November 2019.

[16] Submissions of the Amcor parties on Final Orders dated 11 November 2019 and Reply submissions of the Amcor parties on Final Orders dated 19 November 2019.

[17] An 'unsworn' version of the Humphris 25.11.19 affidavit was provided to the Court and to the Amcor parties on 22 November 2019.

[18] [2019] VSC 849.

[19] Due to a clerical error contained in the form of judgment (reference was made to interest payable on the judgment sum as being 'pursuant to section 60 of the Penalty Interest Rates Act 1983 (Vic)' whereas interest is payable pursuant to section 60 of the Supreme Court Act 1986 (Vic)), a corrected version of the judgment was published under the 'slip rule' (r 36.07) on 7 May 2020.

[20] Orders 1 and 2 related to Achilla's claim for breach of clauses 12.1 and 12.2 of the Second Sale Agreement. Orders 4 and 5 related to the release of the charge.

[23] See orders made by consent on 18 February 2020.

[24] Referred to as the 'Holihan parties' outline of submissions'.

[25] Referred to as the 'Humphris 06.03.20 affidavit'. I note that this affidavit is sworn by Mr Humphris on oath whereas his earlier affidavits were affirmed.

[26] Referred to as the 'Amcor parties' submissions on costs'.

[27] Referred to as the 'McCudden 08.04.20 affidavit'. The affidavit was unsworn due to COVID-19 restrictions, but Ms McCudden undertook to swear, file and serve the affidavit as soon as practicable: Transcript 06.05.2020, at p 39 (line 16). The McCudden 08.04.20 affidavit was sworn on 6 May 2020 and filed on 7 May 2020.

[28] Referred to as the 'Holihan parties' reply submissions'.

[29] Section 24(1) provides:

(1) Unless otherwise expressly provided by this or any other Act or by the Rules, the costs of and incidental to all matters in the Court, including the administration of estates and trusts, is in the discretion of the Court and the Court has full power to determine by whom and to what extent the costs are to be paid.

(3) Without limiting subsection (1) [court may give any direction or make any order it considers appropriate to further the overarching purpose], a court may give any direction or make any order it considers appropriate with respect to -

...

(k) costs, including the proportions in which the parties are to bear any costs;

[31] Rules 63.02, 63.03 and 63.04 relevantly provide as follows:

The power and discretion of the Court as to costs under section 24 of the Act shall be exercised subject to and in accordance with this Order.

The Court may in any proceeding exercise its power and discretion as to costs at any stage of the proceeding or after the conclusion of the proceeding.

The Court may make an order for costs in relation to a particular question in or a particular part of a proceeding.

Where the Court makes an order under paragraph (1), the Court shall fix the proportion of the total costs of the proceeding which is attributable to the particular question in or particular part of the proceeding.

[32] Civil Procedure Act, s 65C(2)(a) and (b).

[33] [1998] HCA 11; (1998) 193 CLR 72 (Oshlack), at 97-98. While McHugh J dissented in the result in Oshlack his Honour's statement of the relevant principles was not contrary to the reasoning of the majority.

[34] Latoudis [v Casey] [1990] HCA 59; (1990) 170 CLR 534 at 543 per Mason CJ; at 562-563, per Toohey J; at 566-567, per McHugh J; Cachia v Hanes (1994) 179 CLR 403 at 410, per Mason CJ, Brennan, Deane, Dawson and McHugh JJ.

[35] [1951] 1 All ER 873, at 874.

[36] King & Co v Gillard & Co [1905] UKLawRpCh 47; [1905] 2 Ch 7; Donald Campbell & Co Ltd v Pollak [1927] AC 732, at 812.

[37] Bostock v Ramsey Urban District Council [1900] UKLawRpKQB 143; [1900] 2 QB 616.

[38] Jones v McKie [1964] 1 WLR 960; [1964] 2 All ER 842; Bostock [1900] UKLawRpKQB 143; [1900] 2 QB 616, at 622, 625, 627.

[39] Forbes v Samuel [1913] UKLawRpKQB 104; [1913] 3 KB 706.

[40] Armstrong v Boulton [1990] VicRp 20; [1990] VR 215, at 223.

[41] Hobbs v Marlowe [1978] AC 16.

[42] Jenkins v Hope [1896] UKLawRpCh 4; [1896] 1 Ch 278.

[43] [2019] HCA 25; (2019) 265 CLR 164 (Sangare).

[44] Ibid, at 172-173, [24 --[25] (Kiefel CJ, Bell, Gageler, Keane and Nettle JJ).

[45] Donald Campbell & Co v Pollak [1927] AC 732 at 811-812; Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534 at 539-540, 557, 561-562, 569; Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 at 96 [65], 120-121 [134].

[46] Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513 at 537; [1986] HCA 17. See also at 533.

[47] Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534 at 541-542, see also at 558‑559; Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 at 96 [65], 121 [134].

[48] Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513 at 519; Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534 at 541-542, see also at 558; Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 at 96 [65], 121 [134].

[49] Smeaton Hanscomb & Co Ltd v Sassoon I Setty, Son & Co [No 2] [1953] 1 WLR 1481 at 1484; [1953] 2 All ER 1588 at 1590. See also Harold v Smith [1860] EngR 516; (1860) 5 H & N 381 at 385 [157 ER 1229 at 1231]; Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 at 96‑97 [66] -[67], see also at 86 [35], 120-121 [134].

[50] Holihan parties' outline of submissions, at [27].

[51] Humphris 06.03.20 affidavit, at [12].

[52] The reference to Supreme Court proceeding '942 of 2004' is clearly an error. Senior Counsel for the Holihan parties informed the Court that proceeding 9240 of 2004 is the related Hodgson proceeding, and the Holihan parties 'were not involved in that proceeding at all': Transcript 06.05.20, at p 13 (Mr Maiden QC).

[53] [1973] 3 All ER 333.

[54] Humphris 06.03.20 affidavit, exhibit JCH-1 at p 38.

[55] Ibid at pp 37-38. See Humphris 06.03.20 affidavit, paginated bundle of documents marked JCH-1 at pp 37-38.

[56] Humphris 06.03.20 affidavit, at [10] and paginated bundle of documents marked JCH-1 at p 27; see also minute of proposed consent orders at pp 28-30.

[57] Humphris 06.03.20 affidavit at [11] and paginated bundle of documents marked JCH-1 at pp 31-32.

[58] Transcript 06.05.2020, at p 41 (lines 11-12) (Ms McCudden).

[59] McCudden 19.11.19 affidavit, exhibit CMM-1.

[60] See McCudden 19.11.19 affidavit, exhibit CMM-1, at [6], [9].

[62] Amcor Packaging (Australia) Pty Ltd (ACN 004 276 165).

[63] See Humphris 25.11.19 affidavit, at [17].

[64] Ibid. See also affidavit of Jennifer Lynn Dejong dated 22 March 2013 ('Dejong 22.03.13 affidavit'), at [13] -[14].

[65] Dejong 22.03.13 affidavit, at [14], [21]- [22].

[66] Dejong 22.03.13 affidavit, at [15].

[67] (2005) 13 VR 435 (Hazeldene's Chicken Farm), at 440-443 [17]-[29] per Warren CJ, Maxwell P and Harper AJA.

[68] [2009] VSCA 233, at [17] per Maxwell P, Redlich JA and Forrest AJA.

[69] Holihan parties' outline of submissions, at [23].

[70] CB 2389 (agenda for 1 February 2006 meeting); Holihan XIC at T1433.13-T1434.26 (evidence that Nellies had told Mr Holihan before the 1 February 2006 meeting "that a lot of the decisions were out of his control of where work wen[t]") and Cichonski XXN at T2311.19 to T2312.22. Mr Nellies could not remember the meeting of 1 February 2006 but did not dispute that it occurred. Nor did he dispute that Mr Holihan said to him something to the effect that it had been apparent that a lot of OME work was being taken elsewhere: XXN at T3167.14-23

[71] Holihan parties' outline of submissions, at [24].

[72] At that point in time it was neither a plaintiff nor was it a second defendant to Achilla's counterclaim.

[73] See Holihan parties' outline of submissions, at [24] and Calderbank offer (Humphris 06.03.20 affidavit, paginated bundle of documents marked JCH-1 at pp 37-38).

[74] Holihan parties' outline of submissions, at [25].

[75] McCudden 19.11.19 affidavit, exhibit CMM-2.

[77] Holihan parties' outline of submissions, at [25].

[78] Holihan parties' outline of submissions, at [26].

[79] Holihan parties' outline of submissions, at [26].

[80] Amcor parties' submissions on costs filed on 8 April 2020.

[81] Amcor parties' submissions on costs, at [2].

[82] For convenience, a copy of the agreed procedural chronology is attached as Annexure 1 to these reasons.

[83] Amcor parties' submissions on costs, at [13].

[84] [2008] VSC 296 (GT Corporation), at [59].

[85] [2016] VSCA 141 (Marriner).

[86] Ibid, at [228] (emphasis added by Amcor parties).

[87] [2019] VSC 713 (WeatherBeeta) at [70].

[88] [2017] VSC 117 (ASIC v Flugge (No 2)).

[89] McCudden 08.04.20 affidavit at [21]: Ms McCudden deposes that the final list of OME jobs issued to the experts as the Annexure 1 to the agreed joint letter of instructions, for the purpose of their final calculations on 30 July 2019, contained only 418 of the original 1,913 OME jobs claimed by the Holihan parties.

[90] Amcor parties' submissions on costs, at [23].

[91] Amcor parties' submissions on costs, at [25].

[92] Amcor parties' submissions on costs, at [28].

[93] Amcor parties' submissions on costs, at [30], citing Queensland North Australia Pty Ltd v Takeovers Panel [No 2] [2015] FCAFC 128; (2015) 236 FCR 370 at [11].

[94] [2008] VSC 296, at [59]. See also Maddingley Brown Coal Pty Ltd v Environment Protection Authority [2013] VSC 687 at [42] (Kyrou J).

[95] Transcript 06.05.2020, at p 63 (lines 10-14) (Ms McCudden).

[96] Amcor parties' submissions on costs, at [24(b)], McCudden 8.04.20 Affidavit at [13]-[18] and [22] and Transcript 06.05.2020, at p 66 (lines 4-29) (Ms McCudden).

[97] Transcript 06.05.2020, at p 70 (lines 4-10) (Ms McCudden).

[98] Transcript 06.05.2020, at p 70-71 (Ms McCudden).

[99] Transcript 06.05.2020, at p 69 (lines4- 22) (Ms McCudden).

[100] In the Reasons, the Court found (at [479]) that 'on a 'business as usual' construction of the clause 12.2 obligation, Achilla would likely have received some small amount of the Amcor Displays' work, unless the exception was enlivened'. See also Reasons at [666], [667] and [1703(b)].

[101] Transcript 06.05.2020, at p 76 (lines 10-20) (Ms McCudden).

[102] Transcript 06.05.2020, at p 79 (lines 15-31) (Mr Maiden QC).

[103] Ruling No 1, [2018] VSC 21, at [25].

[104] Transcript 06.05.2020, at p 83 (lines 4-7) (Mr Maiden QC).

[105] [1955] VR 320 (Keddie).

[106] Keddie, ibid, at 323-324 (Lowe, Martin and O'Bryan JJ).

[107] [2008] VSC 35, at [28].

[108] [2008] VSC 296, at [49].

[109] Transcript 06.05.2020, at p 84 (lines 1-4) (Mr Maiden QC).

[110] Transcript 06.05.2020, at p 84 (lines 21-23) (Mr Maiden QC).

[111] Transcript 06.05.2020, at p 84 (lines 29-30) and p 85 (lines 26-28 and 31) (Mr Maiden QC).

[112] Transcript 06.05.2020, at p 86 (lines 1-4) (Mr Maiden QC).

[113] In the Holihan parties Quantum Particulars dated 15 February 2013, the face value of the OME jobs claimed by them was $7,746,427.55 (ex GST and $8,521,070.30 inc GST). The total 'Profit to Achilla on the supply' of those jobs, as set out in the Quantum Particulars, was $4,091,022.55 plus interest.

[114] Reasons, at [543]: The Court did not accept the contention advanced by the Amcor parties that in determining breach, each individual OME job was to be regarded as being a separate cause of action.

[115] Reasons, [157]: The Court found that Completion took place on 31 July 2003.

[116] The relevant exception or 'carve out' is contained in clause 12.2 of the Asset Sale Deed dated 2 June 2003 and is expressed in the following terms: _'_other than due to Achilla's inability to supply consistently and on a basis which is commercial and reasonably acceptable in terms of price, quality and availability'.

[117] Being the end date of the supply obligation contained in the Second Sale Agreement.

[118] Transcript 06.05.2020, at p 66 (lines 4-10) (Ms McCudden).

[119] Ruling No 1, which required that extensive revisions be made to the Details of Claim.

[120] Amcor parties' submissions on costs, at [24(b)], McCudden 8.04.20 Affidavit at [13]-[18] and [22] and Transcript 06.05.2020, at p 66 (lines 4-29) (Ms McCudden).

[121] Amcor parties' submissions on costs, at [2(b)].

[122] Amcor parties' submissions on costs, at [24(a)].

[123] Amcor parties' submissions on costs, at [24(c)]; McCudden 8.04.20 Affidavit at [21].

[124] Amcor parties' submissions on costs, at [29].

[125] Holihan parties' outline of submissions, at [26].

[126] The PICK system had access to information about all of the Amcor machines available for use, including those used in the ACB Business. The PICK system recorded the actual product design or 'master' for the OME work ordered and contained all of the specifications for the particular job, including the costings, pricing, accounting information, order histories, delivery information and invoicing information. Mr Garcia gave evidence that when Amcor bought the ACB Business (sometime after 2000) he and another person spent two or three months manually entering everything on to the PICK system.

[127] Reasons, [2016] VSC 707, at [25], [986], [989].

[128] See ACN002693843 Box Pty Ltd & Anor v Australian Corrugated Box Co Pty Ltd & Ors [2013] VSCA 223, at [6].

[129] The Special Referee was instructed (Orders made on 6 February 2018) that an 'Amcor Displays Job' means 'a job for the "Amcor Displays" division of Amcor Fibre Packaging, which can be identified by the use of the prefix "SX" on invoices and the like (see Reasons at [474]).'

[130] Reasons at [479] (emphasis added). See also Reasons at [666], [667] and [1703(b)].

[131] [2018] VSC 21, at [24]-[25] and [75].

[132] [2019] VSC 393.

[135] The parties prepared an agreed post-trial chronology addressing the steps taken post-delivery of the Reasons, which is set out as Annexure 2 to these reasons.

[136] Transcript 06.05.2020, at p 83 (lines 4-9) (Mr Maiden QC).

[138] [2007] VSCA 289; (2007) 20 VR 250 (McFadzean v CFMEU).

[139] Ibid, at 289, [152] (per Warren CJ, Nettle and Redlich JJA).

[140] Unreported (Supreme Court of Victoria, Eames J, 10 April 1995).

[141] With respect to the court's ability to consider the relative success of the parties in respect of the issues raised in the proceeding, as well as with respect to causes of action: see Byrns v Davie [1991] VicRp 93; [1991] 2 VR 568. See also Rosniak v Government Insurance Office (1997) 41 NSWLR 608 at 615 per Mason P.

[142] [2007] VSCA 289; (2007) 20 VR 250.

[143] Ibid, at 291, [157] (per Warren CJ, Nettle and Redlich JJA).

[144] See Saarinen v Clay [1954] VicLawRp 21; [1954] VLR 392, 396 (Dean J). See also Cinema Press Ltd v Pictures & Pleasures Ltd [1945] KB 356, 363 (Lord Goddard and du Parcq LJ).

[147] See Cinema Press Ltd v Pictures and Pleasures Ltd [1945] KB 356, 363 (Lord Goddard and du Parcq LJ).

[148] Transcript 06.05.2020, at p 63 (lines 10-14) (Ms McCudden).

[149] See ss 7 and 65C of the Civil Procedure Act.

[150] WeatherBeeta [2019] VSC 713, at [59] (per Connock J).

[156] Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 198 ALR 59 at 64, [20]; 77 ALJR 1165 at 1170.

[157] (2005) 13 VR 435, at 442, [28].

[159] [2008] VSCA 212; (2008) 20 VR 481 (Luxmore).

[160] Ibid, at 484, [11]-[12] (Maxwell P and Kellam JA).

[161] Transcript 06.05.2020, at p 26 (lines 17-18) (Mr Maiden QC).

[162] See Humphris 06.03.20 affidavit, paginated bundle of documents marked JCH-1 at pp 27-30.

[163] Transcript 06.05.2020, at p 43 (lines 8-10) (Ms McCudden).

[164] Transcript 06.05.2020, at p 45 (lines 11-18) (Ms McCudden).

[165] Transcript 06.05.2020, at p 46 (lines 6-14) (Ms McCudden).

[166] Transcript 06.05.2020, at p 46 (line 31)-p 47 (lines 1-3) (Ms McCudden).

[167] Transcript 06.05.2020, at p 26 (lines 24-26) (Mr Maiden QC).

[168] Transcript 06.05.2020, at p 27 (lines 1-2) (Mr Maiden QC).

[169] [2009] VSCA 233.

[170] Amcor parties' submissions on costs, at [38(b)].

[172] Amcor parties' submissions on costs, at [40].

[173] Transcript 06.05.2020, at p 27 (lines 6-9) (Mr Maiden QC).

[174] Transcript 06.05.2020, at p 53 (line 26) (Ms McCudden).

[175] Transcript 06.05.2020, at p 53 (lines 26-31) (Ms McCudden).

[176] Transcript 06.05.2020, at p 28 (lines 19-21) (Mr Maiden QC).

[177] Transcript 06.05.2020, at pp 54-55 (lines 29-31, 1-3) (Ms McCudden).

[178] Amcor parties' submissions on costs, at [43] -[44].

[179] Transcript 06.05.2020, at p 88 (lines 5-8) (Mr Maiden QC).

[180] Transcript 06.05.2020, at p 7 (lines 29-31) (Mr Maiden QC).

[181] Transcript 06.05.2020, at pp 10-11 (Mr Maiden QC).

[182] Transcript 06.05.2020, at p 12 (Mr Maiden QC).

[183] Transcript 06.05.2020, at pp 15-16, and 17 (Mr Maiden QC).

[184] Transcript 06.05.2020, at p 15 (lines 3-6) (Mr Maiden QC).

[185] [2009] VSCA 233, at [17] per Maxwell P, Redlich JA and Forrest AJA.

[186] Amcor v Barnes & Ors [2007] VSC 515, at [43].

[187] Amcor v Barnes & Ors [2007] VSC 515, at [45].

[188] Amcor v Barnes & Ors [2007] VSC 515, at [46].

[189] Amcor v Barnes & Ors [2007] VSC 515, at [46].

[190] Amcor v Barnes & Ors [2007] VSC 515, at [47].

[191] Amcor v Barnes & Ors [2007] VSC 515, at [60].

[192] Amcor v Barnes & Ors [2007] VSC 515, at [60].

[193] Amcor v Barnes & Ors [2007] VSC 515, at [56].

[194] Amcor v Barnes & Ors [2007] VSC 515, at [63].

[195] Amcor v Barnes & Ors [2007] VSC 515, at [64]-[66] (emphasis, in bold, added).

[196] Following the hearing, by email dated 13 July 2020, the Amcor parties solicitors provided a copy of those orders to the Court. The orders recorded under 'Other matters' the giving of the usual undertaking as to damages by counsel for the Amcor parties.

[197] Humphris 06.03.20 affidavit, at [10] and exhibit JCH-1 at p 27.

[198] Humphris 06.03.20 affidavit, at [11] and exhibit JCH-1 at pp 31-33.

[199] Transcript 06.05.2020, at p 60 (lines 27-28) (Mr Maiden QC).

[200] Transcript 06.05.2020, at pp 60-61 (lines 29-31, 1-4) (Mr Maiden QC).

[201] Transcript 06.05.2020, at p 59 (lines 15-16) (Ms McCudden).

[202] Email from the Holihan parties solicitors dated 2 June 2020.

[203] Email from the Amcor parties solicitors dated 13 July 2020 (emphasis in bold added).

[204] Transcript 06.05.2020, at p 62 (lines 25-27) (Ms McCudden).

[205] Affidavit of James Crichton John Humphris dated 26 November 2019.

[206] Affidavit of Christiana Maree McCudden dated 19 November 2019.

[207] Affidavit of Jennifer Lynn Dejong dated 22 March 2013.

[208] Affidavit of Roger Alexander Jepson dated 14 February 2013 (a copy of which is enclosed at Exhibit JCJH-23 of JCH.

[209] Affidavit of Jennifer Lynn Dejong dated 31 October 2012.

[210] Affidavit of James Crighton John Humphris dated 25 November 2019.