//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2013] VSC 739
Supreme Court of Victoria
2013-12-19
VICKERY J
Original judgment source is linked above.
PRACTICE AND PROCEDURE - Directions sought to prosecute counterclaim - Principal proceeding subject to appeal before Court of Appeal - Counterclaim split from principal proceeding pursuant to case management orders made at trial - Active case management in the contemporary context - Considerations as to making an order splitting a trial - Sections 7 and 8 Civil Procedure Act 2010 - Directions hearing deferred pending application before Court of Appeal.
1 This is an application for directions in relation to a counterclaim served and filed in the principal proceeding by Australian Corrugated Box Co Pty Ltd (ACN 104 489 581), ACB Australia Pty Ltd (ACN 104 489 670) and Craig Anthony Holihan (which I shall compendiously refer to as the "Holihan parties"). The application is made pursuant to the general reservation of liberty to apply which is available in the proceedings.
2 These are my reasons for making the ruling on the application.
3 The principal litigation in which the issue arises may be referred to as the Amcor litigation which arose out of the sale by Amcor of two businesses in which, unbeknown to Amcor, certain of its employees secretly and with calculated deception acquired interests.
4 The present counterclaim arises from the sale of the business of Australian Corrugated Box Co Pty Ltd the assets of which were sold pursuant to an Asset Sale Deed, made on 2 June 2003, between Australian Corrugated Box Co Pty Ltd (an Amcor company) as vendor, and ACB Australia Pty Limited as purchaser, Achilla Pty Limited (Achilla) and Craig Holihan. This Deed is referred to as the Second Sale Agreement. The Agreement provided that Achilla would change its name to that of the vendor (and is referred to as ACB); that occurred and the vendor changed its name to ACN002693843 Box Pty Ltd (ACN Box). It was further provided that Holihan, who was a director of the purchaser, would provide certain guarantees of performance, these were contained in clause 11 and included a guarantee and indemnity in respect of ACB Australia Pty Limited and ACB (formerly Achilla).
5 The Court of Appeal in ACN 002693843 Box Pty Ltd and Anor v Australian Corrugated Box Co Pty Ltd and Ors [1] described the course of the proceedings in the following way:
6 When the Agreement was entered into Holihan was employed by Amcor; his employment ceased on 31 July 2003, the day following settlement of the Agreement. Amcor understood that it was selling to Holihan and his companies, but did not know that other employees acquired interests.
7 Two proceedings were commenced called respectively the Hodgson proceeding (in the Trial Division No. 9420 of 2004), and the Barnes proceeding (in the Trial Division No. 8181 of 2007).
8 The present application arises in the Barnes proceeding. The plaintiffs were Amcor Ltd ('Amcor') and another Amcor company; it is convenient to refer to them - and other Amcor companies - collectively as the Amcor parties. The defendants were former managers, including Holihan, and two companies, ACB (formerly Achilla), and ACB Australia Pty Limited. Those defendant companies counterclaimed against ACN Box and Amcor Packaging (Australia) Pty Ltd (APA); this is referred to as the Achilla Counterclaim.[2]
9 The essence of the Amcor litigation against Barnes and the Holihan parties was this:
Although the proceedings were highly complex, if the essence of the Amcor case is to be reduced from the Third Amended Statement of Claim, the Amcor case against Barnes and the Holihan parties may be distilled down to this: Barnes and the Holihan parties participated in the sales of the two business [sic] under the sale agreements in circumstances which amounted to a breach of their statutory and fiduciary duties to Amcor which, by reason of the sales being on uncommercial terms, Amcor suffered loss and damage and Barnes and the Holihan parties made profits, and Barnes and the Holihan parties 'obtained benefits and other benefits'.[3]
10 A joint trial of the proceedings was conducted in 2011. When it commenced, the trial included the Achilla Counterclaim in which Achilla alleged breaches by the Amcor vendor of supply obligations in the Second Sale Agreement (and now, by the amendments referred to below, also in an alleged Implied Supply Agreement). The trial as to liability on the Achilla Counterclaim was to be heard on 25 and 26 July 2011. However, on 29 June, the trial dates set for the Achilla Counterclaim were vacated, in the circumstances described hereafter, and the trial of the counterclaim was adjourned sine die.
11 On 20 March 2012, the Court handed down its decision in the proceeding to the extent that it had been heard to that time (the 'Principal Judgment').[4]
12 The Amcor parties have commenced an appeal before the Court of Appeal against the Principal Judgment.
13 Further, since the Principal Judgment, the parties have engaged in extensive interlocutory work including on the Achilla Counterclaim and Amcor's cross-claim.
14 Pursuant to a facility for liberty to apply, by letter dated 4 December 2013 from the solicitors for the Holihan parties, an application was foreshadowed to re-list the outstanding matters in the trial for a directions hearing. Consequent upon the resolution of an appeal in the Court of Appeal on a pleading issue in ACN 002693843 Box Pty Ltd and Anor v Australian Corrugated Box Co Pty Ltd and Ors,[5] both the Amcor parties and the Holihan parties have filed and served revised pleadings regarding the counterclaim and the Amcor parties' new cross-claim. The latest pleading has been an amended reply and defence to cross-claim dated 28 October 2013 filed and served by the Holihan parties. The Proceedings have otherwise remained dormant since that date.
15 The Holihan parties are concerned to ensure that the counterclaim (and the Amcor parties' new cross-claim) be heard as expeditiously as possible.
16 The Court of Appeal has not as yet given any indication as to when the Amcor parties' appeal might be heard. In these circumstances, it is the position of the Holihan parties that preparation of the remaining part of the proceedings in which they are involved should continue, and that directions be made to facilitate this process. They submit that there are a number of outstanding procedural matters that can and should be progressed, including providing a timetable for expert reports, and the preparation of particulars in reply by the Holihan parties. It is said that substantial costs will be incurred in completing these tasks and it is therefore appropriate that case management orders be entered before they take place.
17 It was submitted that if orders are able to be made this year to set a timetable to progress these issues, the Holihan parties expect that it will be possible for a further directions hearing to be scheduled early in the 2014 year, at which time orders may be able to be made for witness statements to be filed, a trial date to be set and for related procedural orders to be made.
18 Accordingly, I conducted a directions hearing on 19 December 2013 to consider these matters.
19 In the course of her submissions at the directions hearing, Senior Counsel for the Amcor parties referred the Court to the observations made by the Court of Appeal in ACN 002693843 Box Pty Ltd and Anor v Australian Corrugated Box Co Pty Ltd and Ors.[6] In this case the Court of Appeal was called upon to consider the extent to which the Amcor parties should be permitted to amend their pleadings in the Achilla Counterclaim.
20 In the course of its reasons, the Court of Appeal made the following observations by way of obiter dicta:[7]
If the Achilla Counterclaim had not been separated from, but been decided with, the proceeding between the plaintiffs and defendants, and assuming the presently proposed amendments by the Amcor parties had not been made, the present application for amendment would not have arisen. However, that is not what happened.
When his Honour adjourned off the hearing and determination of the Achilla Counterclaim and proceeded to determination of the trial between the plaintiffs and defendants, there was a risk that inconsistent findings might be made on the subsequent determination of the issues raised in the proceeding by counterclaim. There was also the risk of future applications to amend, as has happened. The litigation was heavy, and, given the benefit of the findings and conclusions in the Principal Judgment, the parties and their lawyers could be expected to turn their minds, not merely to an appeal from that judgment, but to how they might better fashion the next round on the counterclaim and the defence thereto.
And, self-evidently and foreseeably, that has happened. First came amendments to the Achilla Counterclaim, followed by the subject application to amend the Amcor parties' defence and to cross-claim. The latter application being opposed, the hearing on 20 June 2013 was required. For that purpose, the parties provided written submissions, each settled by senior and junior counsel and followed by a lengthy hearing. Now we have the application for leave to appeal, supported by written submissions settled by counsel and another hearing. The time taken up in all of this, and the attendant cost, must be large indeed. How this could be considered to conduce to the just, efficient, timely and cost-effective resolution of litigation[8] is not readily to be appreciated.
21 Senior Counsel for the Amcor parties made specific reference to part of paragraph [53] of the above passages, where Hansen and Tate JJA said, '[t]he time taken up in all of this and the attendant cost must be large indeed. How this could be considered to conduce to the just, efficient, timely and cost effective resolution of litigation is not readily to be appreciated'.
22 In the light of the question raised by the Court of Appeal as to the sagacity of making the case management orders in this proceeding, which included orders splitting the trial, an explanation is called for.
23 The case management orders made in this case, to which the Court of Appeal referred, were made in the contemporary context of the now well-entrenched principles of active case management.
24 The movement towards reform of civil litigation practices in common law jurisdictions has been a pervasive and world-wide trend over what is now approaching two decades.
25 Reform in the modern era can be traced back to 1994 when the Lord Chancellor of Great Britain instructed the Master of the Rolls, Lord Woolf, to report on options to consolidate the existing rules of civil procedure in England and Wales. On 26 July 1996, Lord Woolf published his report, Access to Justice.[9] It identified a number of principles which the civil justice system should meet in order to ensure access to justice.[10] According to Lord Woolf's report, the system should:
(c) offer appropriate procedures at a reasonable cost;
(f) be responsive to the needs of those who use it;
(g) provide as much certainty as the nature of particular cases allows; and
(h) be effective: adequately resourced and organised. The report was accompanied by draft rules of practice designed to implement Lord Woolf's principles.
26 In February 2000, a Working Party was appointed by the Chief Justice of Hong Kong to review the civil rules and procedures of the High Court and 'to recommend changes thereto with a view to ensuring and improving access to justice at reasonable cost and speed'.
27 After publication of an interim report and consultation paper in November 2001, a final report, Civil Justice Reform, was released on 3 March 2004.[11] It set out 150 recommendations in respect of reforms to be introduced to civil proceedings of the High Court and the District Court of Hong Kong. The underlying objectives of these reforms, which came into effect on 2 April 2009, were:
(a) to increase the cost-effectiveness of any practice and procedure to be followed in relation to civil proceedings before the Court;
(b) to ensure that a case is dealt with as expeditiously as is reasonably practicable;
(c) to promote a sense of reasonable proportion and procedural economy in the conduct of proceedings;
(f) to ensure that the resources of the Court are distributed fairly.
28 In May 2004, the Victorian Attorney-General issued a 'Justice Statement' outlining directions for reform of Victoria's justice system. One objective was the reform of the rules of civil procedure in order to streamline litigation processes, reduce costs and court delays, and achieve greater uniformity between different courts.[12]
29 On 4 September 2006, the Attorney-General asked the Victorian Law Reform Commission (the 'VLRC') to provide broad-ranging advice about civil justice reform. The Terms of Reference asked the VLRC to identify, among other things, 'the key factors that influence the operation of the civil justice system, including those factors that influence the timeliness, cost and complexity of litigation'. The report, Civil Justice Review, VLRC Report 14 (2008), suggested areas for law reform and identified changes which will reduce the cost, complexity and length of civil trials in Victoria.[13] The reform process in Victoria culminated in the passage of the Civil Procedure Act 2010 (Vic), relevant parts of which will be described in detail below. The overarching purpose and obligations now apply to all civil proceedings commenced in Victoria after 1 January 2011.
30 The momentum of civil litigation reform has progressed in common law jurisdictions internationally.
31 In November 2006, the British Columbia Civil Justice Reform Working Group produced the report, Effective and Affordable Civil Justice.[14] The Working Group was formed to 'explore fundamental change to British Columbia's civil justice system from the time a legal problem develops through the entire Supreme Court litigation process'.[15]
32 The report provided three key recommendations. The first recommendation was for the establishment of a central hub to provide information, advice, guidance and other services required to assist people in solving their own legal problems.
33 The second recommendation was that parties personally attend a case planning conference before they actively engaged the civil justice system beyond initiating or responding to a claim. The case planning conference would seek to address settlement possibilities and processes, and also seek to narrow the issues and determine procedural steps and deadlines for the conduct of litigation in the event that settlement is not possible.
34 The third recommendation had eight components and proposed a complete rewriting of the Supreme Court Rules. The Working Group recommended that the proposed rules:
35 In November 2008, the then Master of the Rolls, Sir Anthony Clarke, appointed Lord Justice Jackson to lead a fundamental review of the rules and principles governing the costs of civil litigation in England and Wales and to make recommendations in order to promote access to justice at proportionate cost. Lord Jackson's preliminary report was published on 8 May 2009, identifying relevant issues for consideration during consultations.[17]
36 The final report sets out a coherent package of reforms designed to reduce litigation costs and to promote access to justice.[18] The report's key findings and recommendations include:
37 The driving principle in Lord Jackson's inquiry is proportionality. His brief was to find ways of making costs more proportionate in relation to the sum or other remedy at stake in civil actions, whilst promoting access to justice. The recommendations in the report are framed by the principle that the costs system should be based on legal expenses that reflect the nature and complexity of the case.[19]
38 Lord Justice Jackson published his final report on his fundamental review of the rules and principles governing the costs of civil litigation in January 2010. The report's recommendations are now in implementation stage. The recommendations are being taken forward in a variety of ways. A number of measures required primary legislation. Other reforms are to be implemented through rule or policy changes.
39 In Australia another development of significance has occurred, in the common law. On 5 August 2009 the High Court of Australia handed down its judgment in Aon Risk Services Australia v Australian National University.[20] This decision affirmed the importance, not only to the parties, but to the Court and other litigants, of a 'just but timely and cost-effective resolution of a dispute between the parties to a proceeding'.[21] French CJ noted there is 'an irreparable element of unfair prejudice in unnecessarily delaying proceedings'.[22] In particular, the Chief Justice drew attention to 'the waste of public resources', the 'strain and uncertainty imposed on litigants' and 'the potential for loss of public confidence in the legal system' arising from adjournment of trials without adequate justification.[23] Similarly, in Aon, Gummow, Hayne, Crennan, Kiefel and Bell JJ referred to the 'ill-effects of delay' upon employees and officers of corporations, as well as upon defendant corporations whose ability to plan financially may be affected by a contingent liability.[24]
40 Significantly in Aon, the High Court accepted the principles of case management by the courts, saying:
Such management is now an accepted aspect of the system of civil justice administered by courts in Australia. It was recognised some time ago, by courts here and elsewhere in the common law world, that a different approach was required to tackle the problems of delay and cost in the litigation process.[25]
41 The High Court in Aon also said that the rules concerning civil litigation are no longer to be considered as directed only to the resolution of the dispute between the parties to a proceeding. The achievement of a just but timely and cost-effective resolution of a dispute has an effect upon the court and upon other litigants. As explained by Gummow, Hayne, Crennan, Kiefel and Bell JJ:[26]
In Sali v SPC Ltd [27] Toohey and Gaudron JJ explained that case management reflected:
"[t]he view that the conduct of litigation is not merely a matter for the parties but is also one for the court and the need to avoid disruptions in the court's lists with consequent inconvenience to the court and prejudice to the interests of other litigants waiting to be heard ..."
In this vein, their Honours also concluded:[28]
In the past it has been left largely to the parties to prepare for trial and to seek the court's assistance as required. Those times are long gone. The allocation of power, between litigants and the courts arises from tradition and from principle and policy. It is recognised by the courts that the resolution of disputes serves the public as a whole, not merely the parties to the proceedings.
As we construe Aon, it was about the impropriety of granting a party leave to make a late amendment to a pleading, in circumstances where that party had failed to act expeditiously, and where to allow the amendment was likely to be productive of wasted costs and resources. More generally, Aon may be thought to have re-invigorated the procedural paradigm, to some extent and for some time diminished by JL Holdings, that time, costs and limited judicial resources are relevant considerations in the determination of whether to allow late applications for amendment and invoke other interlocutory processes.
43 Ronald Sackville in his article 'Mega-Lit: Tangible Consequences Flow from Complex Case Management'[31] opined on the implications of Aon in the following passage:
Thus, it is now clear that courts should exercise their power to utilise case management tools in ensuring that the interests of justice are served by minimising cost and delay for parties involved in litigation. Such a stance sees the "transformation of the judicial role from that of passive decision-maker to active manager of litigation". [Footnote omitted]
44 Finally, I refer to the work of the Australian Law Reform Commission in their Report of 2012 'Managing Discovery - Discovery of Documents in Federal Courts'.[32] This report is of significance in Australia on the issue of discovery and provides a valuable resource of materials on the development of case management principles generally. It is against this background that I turn to consider the implementation of case management principles in the present litigation.
45 The central plank of the Civil Procedure Act 2010 (the 'Civil Procedure Act') which was alluded to by the Court of Appeal in ACN 002693843 Box Pty Ltd and Anor v Australian Corrugated Box Co Pty Ltd and Ors[33] is to provide for an 'overarching purpose' described in the following terms by s 7:
(1) The overarching purpose of this Act and the rules of court in relation to civil proceedings is to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute.
(2) Without limiting how the overarching purpose is achieved, it may be achieved by-
(a) the determination of the proceeding by the court;
(b) agreement between the parties;
(c) any appropriate dispute resolution process-
(i) agreed to by the parties; or
(ii) ordered by the court.
46 The Civil Procedure Act imposes overarching obligations and duties upon the parties and their lawyers to "advance the administration of justice in relation to any civil proceeding".[34] Further, the inherently wide powers of the Court are given statutory recognition in the Act to effect its purposes, supported by sanctions for contravening the overarching obligations.[35]
47 Section 8 of the Civil Procedure Act directs in mandatory terms that the Court is to give effect to the overarching purpose in the exercise of any of its powers, or in the interpretation of those powers.
48 Sections 47 and 49 of the Civil Procedure Act confer on the Court wide statutory powers of active case management for the purposes of ensuring that a civil proceeding is managed and conducted in accordance with the overarching purpose. Under s 47(3) the Court may actively case manage civil proceedings by -
(a) giving directions to ensure that the civil proceeding is conducted promptly and efficiently;
(b) identifying at an early stage the issues involved in the civil proceeding, including any issues that have not been resolved in accordance with any mandatory or voluntary pre-litigation processes;
(c) deciding the order in which the issues in dispute in the civil proceeding are to be resolved including -
(i) deciding promptly which issues need full investigation and a hearing; and
(i) to co-operate with each other in the conduct of the civil proceedings;
(ii) to settle the whole or part of the civil proceedings;
(e) controlling the progress of the civil proceeding, including, but not limited to -
(ii) dealing with as many aspects of a civil proceeding as it can on the same occasion;
(iii) dealing with the civil proceeding without the parties needing to attend court;
(f) limiting the time for the hearing or any other part of a civil proceeding, including, but not limited to -
(i) limiting the number of witnesses at the hearing;
(ii) limiting the time for the examination or cross-examination of any witness;
(iii) limiting the issues or matters that may be the subject of examination or cross-examination;
(g) considering whether the likely benefits of taking a particular step in a civil proceeding justify the cost of taking it.
49 The powers of case management are reinforced by the statutory powers conferred on the Court to order and direct trial procedures and the conduct of hearings. For these purposes, pursuant to s 49(1) of the Civil Procedure Act a court may give any direction or make any order it considers appropriate to further the overarching purpose in relation to the conduct of the hearing in a civil proceeding. Without limiting ss (1), a court may give any direction or make any order it considers appropriate with respect to -
(a) the order in which evidence is to be given and addresses made;
(b) the order in which questions of fact are to be tried;
(c) limiting the time to be taken by a trial, including the time a party may take to present the party's case;
b) not allowing cross-examination of particular witnesses;
c) limiting the number of witnesses that a party may call;
(e) limiting the issues or matters that may be the subject of examination or cross-examination;
(f) limiting the length or duration of written and oral submissions;
(g) limiting the numbers of documents to be prepared or that a party may tender in evidence;
(h) the preparation by the parties of an agreed bundle of documents for use in the proceeding or a schedule summarising business records or other documents;
(j) evidence, including, but not limited to whether evidence in chief should be given orally, by affidavit or by witness statement;
(k) costs, including the proportions in which the parties are to bear any costs;
50 The overarching purpose and obligations now apply to all civil proceedings commenced in Victoria after 1 January 2011.
51 Recent authority in Victoria emphasises that the Act requires the Court to be proactive and innovative in its approach to achieve its objects.[36]
52 The events and consequences noted by the Court of Appeal referred to above, which it observed resulted from the splitting of the trial, proceeded without the benefit of any analysis of the case management issues which confronted the trial, which I shall here briefly describe.
53 There is ample statutory power for a Court to make an order splitting a trial when it is appropriate to do so that a civil proceeding is managed and conducted in accordance with the overarching purpose of the Civil Procedure Act.
54 The splitting of a trial is commonly ordered with a view to advancing the statutorily mandated overarching purpose for the just, efficient, timely and cost-effective resolution of the real issues in dispute. The examples include splitting a trial between liability issues and quantum issues, thereby focussing the efforts and resources of the parties and the Court on what is commonly the real issue in dispute, leaving the question of quantum of damages, should it remain alive upon a finding of liability, to resolution by mediation or to a later expert reference for determination, or to the Court, should this become necessary.
55 In such cases, a judgment needs to be made in advance as to the likely efficiencies and cost effectiveness to be generated by ordering the splitting of a trial in this fashion. The course of litigation is not predictable founded upon any exact science. In hindsight, in the light of events which may latter happen, the making of a case management order, including the splitting of a trial, may not always prove to have been best suited to promotion of the overarching purpose. Nevertheless, such an outcome does not erode the efficacy of the making of such an order in the first place.
56 In this case, the trial of the proceedings were split into three parts for very good reasons, consistently with promotion of the statutory overarching purpose. The three parts were:
(a) the Hodgson proceeding (the 'Hodgson proceeding'), in which Hodgson claimed employment entitlements he said were due to him on termination of his employment with Amcor in October 2004. His termination was not on grounds of misconduct;
(b) the Amcor proceeding (the 'Amcor proceeding'), in which Amcor alleged that Barnes and the Holihan parties participated in the sales of the two business in circumstances which amounted to a breach of their statutory and fiduciary duties to Amcor which, by reason of the sales being on uncommercial terms, Amcor suffered loss and damage and Barnes and the Holihan parties made profits, and obtained benefits; and
(c) the Achilla counterclaim was initiated by Holihan in the proceeding brought against him by Amcor. As has been earlier described, this action essentially concerns a supply contract between Achilla and an Amcor company.
57 There were 7 parties in the proceedings overall. The Amcor parties were represented by Senior and Junior Counsel, as was Hodgson, and the Holihan parties. The defendants Bayley and Mihelic were represented by Junior Counsel and the defendants Barnes and Sangster were self-represented.
58 Hodgson was aged 61 at the time he left the company in 2004. At the time of the trial he was aged 68 and is now aged 70 years.
59 The Hodgson proceeding had been greatly delayed, in significant part by the conduct of Amcor in the litigation. Hodgson commenced his action now more than nine years ago, by writ and statement of claim dated 3 December 2004. His claim has not changed. Hodgson claimed employment entitlements he said were due to him on termination of his employment with Amcor in October 2004. His termination was not on grounds of misconduct.
60 Much has happened in these complex proceedings, including related Anton Piller proceedings conducted in the Federal Court, which were not able to be managed by this Court. However, I highlight for present purposes the following events:[37]
• On 21 April 2006, Amcor obtained leave from Harper J to file and serve an amended defence and counterclaim in the Hodgson proceeding making substantial allegations arising from the sale of two Amcor businesses in 2002 and 2003.
• In 2007, Amcor commenced the proceeding against Barnes in which similar allegations were made.
• On 14 December 2007, Osborn J ordered that the Barnes and Hodgson proceedings be heard together. A stated purpose behind making this order was expressed by his Honour to '... bring both proceedings to trial relatively expeditiously'.[38]
• On 19 May 2010, Emerton J made orders principally permitting Amcor to amend it counterclaim.[39] In recognition of the unacceptable delay caused to the proceedings by this application, her Honour ordered that Amcor pay the costs of the application on a solicitor/own client basis. Her Honour also made orders directed to Amcor to file and serve its witness statements within a prescribed time-frame. The time frame was extended by orders made by her Honour on 11 August 2010 and again on 1 October 2010.
• On 21 and 22 February 2011, I heard an application made on Hodgson's behalf that the defence and counterclaim (alternatively only the defence) of Amcor Ltd be struck out for its 'repeated and contumelious failure to comply with orders of the Court that Amcor deliver its witness statements made [by Emerton J] on 19 May 2010, 11 August 2010 and 1 October 2010'.
• Without satisfactory explanation, Amcor had not complied with the Court orders of Emerton J in the respects alleged, nor had it made application to further extend the prescribed time. However, in the week before the hearing of the application, the Amcor parties filed an expert report of a forensic accountant (an 83 page document containing numerous appendices and cataloguing 1031 reference documents). At the same time the Amcor parties filed 13 lay witness statements, which, with attachments, spanned 5 large lever arch folders.
61 I did not accede to Hodgson's application to strike out Amcor's claims, but instead ordered that the trial be conducted in two parts: Phase 1: the 'Hodgson Quantum Trial' (being the most significant part of the Hodgson proceeding) conducted between 30 and 31 March 2011. This was intended to deal expeditiously with the quantum of Hodgson's claims under his contract of employment with Amcor; and Phase 2: a 'Liability Trial' of the Amcor proceeding conducted between 1 April and 1 August 2011. This was intended to deal with some remnant liability issues arising in Hodgson's employment claim, but principally deal with Amcor's counterclaim in the Hodgson Proceeding and its claims in the Barnes Proceeding - both of which related to allegations arising from the sale of the two businesses by Amcor in 2002 and 2003.
62 In the circumstances described, it was not conducive to the principles of case management as enshrined in the Civil Procedure Act to delay the delivery of my judgment on Hodgson's employment claims, pending the hearing and determination of the Achilla counterclaim, which in all material respects was a totally unrelated proceeding to the Hodgson proceeding.
63 On 10 May 2011, a further pre-trial directions hearing was conducted. The further time-tabling of the remainder of the trial was dealt with. It was proposed by the Court that a trial 'Phase 3' be introduced to deal with liability under the Achilla counterclaim, following which final addresses relating to all Phases would be heard, and the case as a whole would be dealt with in a single judgment.[40] This was, and until the events of late June 2011, the original case management plan for the proceeding.
64 Orders were made to this effect on 10 May 2012, which included setting Phase 3 down for trial on 25-26 July 2011.
65 Discovery in the Achilla counterclaim proceeding, which was unusually complex, had not then been completed. This further put at risk the proposed time table for the Phase 1 and Phase 2 trials and called for close management. Accordingly, it was ordered that discovery in the Achilla counterclaim proceeding be completed by 5 July 2011.
66 The clear object of splitting the trial into Phases 1, 2 and 3 was to avoid parties and their representatives having to suffer the unnecessary cost and inconvenience of having to attend Court in phases which had no application to them. Phase 1 only concerned Hodgson and Amcor, while Phase 3 only concerned Holihan (and his company Achilla) and Amcor. Phase 2 on the other hand concerned all parties. In this way the trial, which was rapidly generating massive costs, was managed in the most cost effective manner possible, consistently with case management principles.
67 The trials of Phases 1 and 2 were tightly managed and were effectively confined within the trial timetables set for the hearings.
68 However, during the Phase 2 trial of the Amcor proceeding on 18 May 2011, concern was raised that the Achilla counterclaim could not be dealt with in the two days allocated to it on 25 and 26 July 2011.[41]
69 Then, on 28 June 2011, during the final stages of the Phase 2 trial, Senior Counsel for Holihan (and Achilla) acknowledged that it was 'sensible that it should go off', saying further, '[f]rankly we think it should go off probably until Your Honour's determination of this matter.'[42]
70 Further, the complex discovery issues in the counterclaim proceeding had not been resolved. It was in response to this invitation from Senior Counsel that I made a direction that 'all matters relating to the Achilla counterclaim be adjourned sine die.' Amcor raised no objection to this course.[43]
71 I made this decision in the light of events that arose in the trial which had not been foreseen, namely a significant blow-out of the previous estimated duration of the Phase 3 trial, and the lack of preparedness on the part of the parties to go to trial on the Achilla counterclaim in the absence of completed discovery, which was an extensive and complex exercise and could not be completed by the date previously ordered for the task, namely 5 July 2011.
72 At the same time, in making the case management decision which had to be made, what needed to be balanced was the fact that at the time the application was made to vacate the Achilla counterclaim trial date, the Phase 1 trial had been completed and the Phase 2 trial (in terms of the evidence) was close to completion.
73 In the circumstances described, it was not consistent with case management principles to delay consideration and delivery of the judgment in relation to the Phase 1 or Phase 2 matters any longer than necessary, particularly in relation to the Hodgson employment claims, which had already suffered unacceptable delays. In the instance in question, a judgment had to be made balancing the competing considerations, and it was made in the manner described. To my mind, the course that was adopted was the lesser of two evils, given the very long history of delay in the matter, and the fact that the two protagonists in the Achilla counterclaim proceeding (Holihan and Amcor) were prepared to adopt the course without objection, and indeed the Holihan party actively sought it.
74 In the events that have happened, the Achilla counterclaim and the Amcor cross-claim are still not ready for trial.
75 It appears to me that the most appropriate course in the present application is to adjourn the directions hearing sine die to enable an application to be made in the Court of Appeal, which is presently seized of the appeal against the Principal Judgment. The outcome of this appeal may or may not bear upon the issues proposed to be agitated in the Achilla counterclaim and the Amcor cross-claim.
76 The Court of Appeal is in the best position to determine this question, and the potential impact of the appeal on the further management and disposition of the remaining proceedings for trial.
77 The Court of Appeal is also in the best position to determine when it is likely that the appeal is able to be heard and determined. This too will have a bearing on the further case management of the Achilla counterclaim and the Amcor cross-claim.
78 For these reasons, I will order that the directions hearing be adjourned sine die and I will reserve costs.
[2] [2013] VSCA 223 [3]-[5] (Hansen and Tate JJA).
[3] Amcor Ltd & Ors v Barnes & Ors [2012] VSC 434 [86].
[4] Hodgson v Amcor Ltd; Amcor Ltd v Barnes & Ors [2012] VSC 94.
[6] [2013] VSCA 223 [51]-[53] (Hansen and Tate JJA).
[7] [2013] VSCA 223 [51]-[53].
[8] See Civil Procedure Act 2010 (Vic), s 7(1).
[9] Lord Woolf, Master of the Rolls Access to justice: Final Report (1996 HMSO).
[10] Australian Law Reform Commission Managing Discovery, Final Report "Discovery of Documents in Federal Courts" March 2011 (the "ALRC Report").
[14] British Columbia Justice Review Taskforce, 'Effective and Affordable Civil Justice' Report Of The Civil Justice Reform Working Group To The Justice Review Task Force (November 2006) ('BC Justice Review Report'); See also ALRC Report pp 33- 34.
[15] British Columbia Justice Review Taskforce, 'Effective and Affordable Civil Justice' Report Of The Civil Justice Reform Working Group To The Justice Review Task Force (November 2006), v.
[16] British Columbia Justice Review Taskforce, 'Effective and Affordable Civil Justice' Report Of The Civil Justice Reform Working Group To The Justice Review Task Force (November 2006), Executive Summary, vi; ALRC Report, pp 33-34.
[17] R Jackson, Review of Civil Litigation Costs: Preliminary Report (2009); ALRC Report, p 30.
[18] R Jackson, Review of Civil Litigation Costs: Final Report (2009).
[20] Aon Risk Services Australia v Australian National University [2009] HCA 27; (2009) 258 ALR 14 ('Aon').
[21] Aon Risk Services Australia v Australian National University [2009] HCA 27; (2009) 258 ALR 14 [93] (Gummow, Hayne, Crennan, Kiefel and Bell JJ).
[22] Aon Risk Services Australia v Australian National University [2009] HCA 27; (2009) 258 ALR 14 [5].
[23] Aon Risk Services Australia v Australian National University [2009] HCA 27; (2009) 258 ALR 14 [30].
[24] Aon Risk Services Australia v Australian National University [2009] HCA 27; (2009) 258 ALR 14 [101].
[25] Aon Risk Services Australia v Australian National University [2009] HCA 27; (2009) 258 ALR 14 [92].
[26] Aon Risk Services Australia v Australian National University [2009] HCA 27; (2009) 258 ALR 14 [93].
[27] Sali v SPC Ltd [1993] HCA 47; (1993) 67 ALJR 841, 849.
[28] Aon Risk Services Australia v Australian National University [2009] HCA 27; (2009) 258 ALR 14 [113].
[29] [2011] VSCA 16 (Warren CJ, Ashley and Nettle JJA).
[30] Trevor Roller Shutter Service Pty Ltd v Crowe [2011] VSCA 16 [42].
[31] R Sackville, 'Managing Discovery - Discovery of Documents in Federal Courts' (2010) Law Society Journal 47, 48.
[33] [2013] VSCA 223 [53] (Hansen and Tate JJA).
[36] Thomas v Powercor Australia Ltd [2010] VSC 489 [41] (Forrest J); Crowe v Trevor Roller Shutter Services Pty Ltd [2010] VSC 536 [19]-[20] (Beach J); Trevor Roller Shutter Service Pty Ltd v Crowe [2011] VSCA 16 (Warren CJ, Nettle and Ashley JJA).
[37] See the summary of Emerton J in Hodgson v Amcor Ltd; Amcor Ltd v Barnes [2010] VSC 204 [1]-[23].
[38] Amcor v Barnes & Ors [2007] VSC 515 [49].
[39] Hodgson v Amcor Ltd; Amcor Ltd v Barnes [2010] VSC 204 [122]-[124].
[40] Transcript 10/05/2011, p 9 lines 7-17.
[41] Transcript 18/05/2011 p 365 lines 13-30.
[43] Transcript 28/06/2011 p 3314 lines 22-31.
(2009) 258 ALR 14
(1993) 67 ALJR 841