Amcor Ltd v Barnes [2020] VSCA 57

2 The litigation involves two proceedings, known as 'the Hodgson proceeding' and 'the Barnes proceeding' respectively, which were heard concurrently in a joint trial on questions of liability that took place before Vickery J in 2011. During the first two weeks of the main trial before Vickery J, a counterclaim in the Barnes proceeding, known as 'the Achilla counterclaim', was 'carved out' and then adjourned to a date to be fixed.

3 The Achilla counterclaim was subsequently heard by Sloss J and ultimately resulted in her Honour making orders, on 19 February 2020, that one of the Amcor parties,[2] Orora Ltd, pay to one of the Achilla counterclaiming parties, Australian Corrugated Box Co Pty Ltd,[3] the sum of $2,430,056.06 together with interest in the amount of $2,324,407.47.

4 In respect of orders made by Vickery J in the litigation between the parties, the following matters are currently awaiting hearing in the Court of Appeal:

• two appeals instituted in 2012, described as the 'Extant Amcor Appeals';[4] and
• an application for leave to appeal also instituted in 2012, described as 'the Hodgson Application'.[5]

5 These matters have been awaiting the making of final orders, following the completion of the matters that were tried by Sloss J.

6 The Amcor parties, including Orora, now propose to seek leave to appeal from the orders of Sloss J made on 19 February. Australian Corrugated Box Co and ACB Australia Pty Ltd (the plaintiffs in the Achilla counterclaim) are also contemplating seeking leave to appeal from the orders of Sloss J.

7 Before the Court this morning is an application by Orora seeking a stay of the orders made by Sloss J requiring it to make payment to Australian Corrugated Box Co. Orora seeks a stay, pending the hearing and determination of its application for leave to appeal (and any appeal) from the orders of Sloss J. As a condition of obtaining an interim stay until today, the amount ordered to be paid by her Honour has been paid into court.

8 Australian Corrugated Box Co opposes the granting of a stay on the basis that Orora has not demonstrated that a stay is justified. In the event that a stay is granted, Australian Corrugated Box Co submits that the stay should be limited, 'so as not to extend to the sum of $457,301.49 payable to [it] to compensate it for overcharging by [Orora], which should not be disturbed on appeal'.

9 Additionally, Australian Corrugated Box Co seeks to limit the operation of any stay so that it would not impede its ability to use the judgment proceeds to purchase a specified property on what are said to be particularly favourable terms (or to make any other such purchase if the proposed purchase is not made). In respect of this second limitation, an undertaking was proffered by Craig Holihan (a director of Australian Corrugated Box Co) that, in the event of a purchase, Australian Corrugated Box Co would not encumber or dispose of the property before the hearing of the appeals in this Court.

10 The application for a stay is made under rr 64.39 and 66.16 of the Supreme Court (General Civil Procedure) Rules 2015. The principles relating to such an application are well established and not in dispute. As was said by Whelan and Kaye JJA in Loftus v Australia and New Zealand Banking Group Ltd:[6]

Prima facie, a successful party is entitled to the benefit of the judgment obtained below. Accordingly, an applicant for a stay is required to demonstrate special or exceptional circumstances to remove the case from the general rule that an appeal, and an application for leave to appeal, do not operate, of themselves, as a stay. In particular, special circumstances may be found to exist where the applicant is able to demonstrate that there is a real risk that it will not be possible to restore the applicant substantially to his or her former position if the judgment against the applicant is executed before the conclusion of the appeal.

In order to justify the grant of a stay, an applicant should also demonstrate that there is at least an arguable ground of appeal. However, ordinarily, the court does not have before it sufficient materials to consider, in detail, the merits of the grounds of appeal relied on in the application for leave to appeal. In such a case, unless there is no arguable ground of appeal, or the appeal is not bona fide, the court ordinarily will focus on matters relevant to the enforcement of the judgment, rather than matters that are relevant to its validity or correctness.[7]

11 The application for a stay is made on the basis that, absent a stay, there is a real risk that the funds would not be returned if the orders of Sloss J were set aside. In support of that contention, the Amcor parties point to the fact that Australian Corrugated Box Co is not trading as a business; has a share capital of one dollar; and has no registered interests in real property.

12 The litigation between the parties is undoubtedly complex. It has also been very protracted. We are in no position to make any considered appraisal of the merits of any of the current grounds, and proposed grounds, of appeal. We note, however, that it is not contended against the Amcor parties that their appeals and applications contain no arguable grounds.

13 The history of this litigation persuades us that there are special or exceptional circumstances justifying the granting of a stay in this case, on terms that the money paid into court remains in court.

14 Additionally, we are not persuaded that it is appropriate that Australian Corrugated Box Co have access to the judgment sum on either of the bases for which it contended. In directions hearings this morning, we have fixed the various appeals and applications in this Court for hearing on 27 October this year.

15 In the circumstances, we are persuaded that the stay sought by Orora should be granted on terms that leave the judgment sum in court pending the resolution of matters between the parties in this Court.

ACN002693843 BOX PTY LTD (FORMERLY AUSTRALIAN CORRUGATED BOX CO PTY LTD)

ORORA LIMITED (FORMERLY AMCOR PACKAGING (AUSTRALIA) PTY LTD)

SPECIALTY PACKAGING GROUP PTY LTD (FORMERLY SERVICE CONTAINERS PTY LTD)

ACN 002693843 BOX PTY LTD (FORMERLY AUSTRALIAN CORRUGATED BOX CO PTY LTD)

Second Plaintiff by Counterclaim / Second Appellant

ORORA LIMITED (FORMERLY AMCOR PACKAGING (AUSTRALIA) PTY LTD)

Fourth Plaintiff by Counterclaim / Fourth Appellant

Second Defendant by Counterclaim / Second Respondent

[1] See for example Amcor Ltd v Barnes (Unreported, Court of Appeal, Whelan and Santamaria JJA, 13 March 2014); Amcor Ltd v Barnes [2016] VSC 707 and [2019] VSC 849.

[2] Amcor Ltd, ACN002693843 Box Pty Ltd, Specialty Packaging Group Pty Ltd and Orora Ltd.

[3] Referred to in some of the material as 'Achilla'.

[4] Being appeal proceedings S APCI 2012 066 and S APCI 2012 0045.

[6] [2016] VSCA 114, [7]-[8].