Plaintiffs v Defendants

For the Plaintiffs by Counterclaim/Defendants to Cross-Claim

Reasons for decision delivered on 28 November 2016

1 The Court delivered its reasons for decision in both the counterclaim proceeding and the cross-claim proceeding 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 ACN002693843 Box Pty Ltd ('ACB Co Vendor') (one of the Amcor parties) 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:[1]

(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 is that Achilla is entitled to be compensated 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 to 31 July 2008 ('Claim Period'), save for work that fell within the carve out or exception to that obligation in clause 12.2.[2]

4 Since delivering its Reasons, the Court has delivered two rulings addressing additional matters raised by the parties.

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

• the first being the Holihan parties' application seeking to have the Court proceed to 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

• 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)).[3]

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). 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'.[4] To that end, in Annexure A to the 6 February 2018 orders, Mr Mines was instructed that:[5]

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 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)).[6]

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:[7]

. . .

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 Both the Holihan parties and the Amcor parties have indicated that they are 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 addressed to four topics:

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

(c) any application made to reopen 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, the time available permitted the Court to hear argument directed to the Amcor Displays issues only. Accordingly, this ruling deals only with how the Amcor Displays Objection is to be resolved, and whether either party should have leave to re-open in furtherance of its resolution. It will be necessary to re-schedule a further hearing to deal with the other two outstanding issues, namely:

(a) Should the Mines Report be adopted in whole or in part, and what is otherwise to be done with it?

(b) What further procedural steps are required to progress the proceeding?

15 This ruling should be read in conjunction with the Reasons, Ruling No 1 and Ruling No 2.

Each of the Holihan parties and the Amcor parties seek leave to re-open

16 As noted above, each of the Holihan parties and the Amcor parties sought to re-open. The only difference between them was how much of discovered document 'Achilla 1A'[8] should be accepted into evidence upon the re-opening of the case, in circumstances where an extract only had been tendered at trial due to its voluminous size.[9]

17 In the case of the Holihan parties, the further evidence sought to be adduced was an extract from Achilla 1A (which was set out as exhibit 'CAH-1' to an affidavit of Mr Holihan sworn on 7 February 2019) listing all invoices issued by Achilla to Amcor Displays in the period from October 2005 to the end of the Second Sale Agreement on 31 July 2008, which is commensurate with the Claim Period (as defined in the orders made on 6 February 2018).

18 In the case of the Amcor parties, they sought to have the whole of Achilla 1A tendered, observing that the tender of the 'extract only' appeared to be a case of inadvertent error, seemingly by both parties, which occurred in order to reduce the amount of documents tendered, and not for any tactical or strategic reason.

Overriding principle: re-opening permissible where the interests of justice so require

19 It is clear that where the interests of justice so require, the court may allow a party to re-open its case, even where reasons have been published.[10] As the Court of Appeal observed in Di Stasio Pty Ltd v R & K Services Pty Ltd,[11] the 'overriding principle is whether, taken as a whole, the justice of the case favoured leave being granted to re-open' and the court should endeavour to identify 'a means of rectifying matters in a simple and inexpensive manner in accordance with modern views about the proper conduct of litigation'.[12]

20 The Holihan parties submitted that, in the present case, the interests of justice require that leave to re-open be granted, because:[13]

(a) there was no reason for the evidence to be adduced on the first hearing, as the issue to which it relates did not emerge until the Amcor parties' closing submissions;

(b) the need to reopen was first identified shortly after the publication of reasons, in March 2017;

(c) the parties agree that the case should be reopened, and reopening will cause no prejudice to either party and no undue inconvenience to the Court;

(d) the reopening is of limited scope and involves only adducing further parts of a document that is already in evidence in part (together with a limited explanation of that document);

(e) without the further information the Court will be hindered in its determination of the Amcor Displays Objection, and the Holihan Parties might be prejudiced in proving their loss; and

(f) usual concerns regarding finality do not apply, as the further evidence is to be used in submissions on questions that are to be determined as part of a staged approach to the case.

21 Further, the Holihan parties submitted that leave should also be granted to allow Mr Holihan's further affidavit (and exhibit CAH-1) to be filed, as it is relevant.[14] They contended that, because Mr Holihan has first-hand knowledge of the Achilla 1A document, he is able to describe how the various potentially confusing columns of the document relate to one another. They say that the calculations he provides will likely be of assistance to the Court, and can readily be checked by the Amcor parties.

22 The Amcor parties agreed that leave to re-open should be granted. They noted that the prospect of adducing further evidence had been raised by the parties during the next mention after the Reasons were delivered, and observed that in dealing with the Amcor Displays Objection, it will likely be relevant for the Court to know how much work Achilla did for Amcor Displays. The Amcor parties contended that the most expedient, and therefore the appropriate, course is to tender the full version of the Achilla 1A document - but on the express understanding that the Court will only consider, and will only have to consider, those parts to which the parties take the Court. They submitted that course is the most appropriate one for the following reasons:[15]

(a) first, in the ordinary course, the traditional approach is for entire documents to be admitted rather than redacted versions or extracts. Here, an extract was tendered simply because the Achilla 1A document was very bulky;

(b) secondly, in circumstances where the parties agree that additional parts of the Achilla 1A document are relevant, it is more prudent to admit the whole document, in case more of it should become relevant to the Court's consideration of the issues during the course of oral argument; and

(c) thirdly, it will not cause any disproportionate cost to admit the whole document. That can be done electronically, and the parties will address the Court on what is relevant, and the Court need not consider those parts it is not directed to.

23 The Amcor parties also submitted that the Court should reject the Holihan parties' alternative course of adducing further evidence from Mr Holihan.[16] They said the Achilla 1A document speaks for itself, and given the somewhat extraordinary nature of any application to re-open, the nature of the new evidence should be limited to documentary evidence where possible.

24 During the course of the oral submissions made at the hearing, counsel for the respective parties agreed that the most sensible and expedient course would be for the Court to deal with the Amcor Displays Objection before dealing with any of the other matters and/or referring anything further to the special referee. To that end, counsel for the Amcor parties informed the Court that, notwithstanding what is contained in Amcor parties' written submissions, he would be submitting that a reasonable 'compromise position' would be for the Court to receive the Achilla 1A document and Mr Holihan's further affidavit, treating it as an explanation of Achilla 1A.[17]

25 Counsel for the Holihan parties agreed that in respect of the applications to re-open, the Holihan parties are content to proceed on the basis that leave to re-open should be granted to both sides.[18]

The Court is satisfied that a limited re-opening is appropriate

26 Against that background, the Court indicated that in circumstances where it seems at the trial neither side had focused on what a 'business as usual' construction of the Second Sale Agreement might entail for the Amcor Displays' work, and given the (effectively agreed) position now reached between the parties, that it was satisfied it was in the interests of justice to allow the parties to re-open in the limited way discussed. Accordingly, the Court ruled that both the further affidavit of Mr Holihan (together with his exhibit 'CAH-1') and the whole of the Achilla 1A document be admitted into evidence, effectively by consent. Both parties would then have the opportunity to make submissions about the conclusions the Court should draw from that additional material.[19]

27 In my view, when the additional material sought to be adduced by the parties is taken as a whole, the justice of the case favours leave being granted to re-open. Further, that course commends itself as the preferable and expedient way forward, and given the time this proceeding has occupied to date, the Civil Procedure Act 2010 (Vic) would endorse it as a pragmatic, efficient and expedient course that accords justice to both parties.

28 Accordingly, at the hearing on 8 February 2019, the further affidavit of Mr Craig Anthony Holihan dated 7 February 2019 (together with exhibit CAH-1) was tendered as exhibit H448, and a USB containing an electronic version of the whole of the discovered document 'Achilla 1A' was tendered as exhibit A99.

29 Following the delivery of the Reasons and the appointment of Mr Mines as the special referee, the parties, through an iterative process of exchange of 'Claim Documents', have identified as 'Disputed Jobs'[20] approximately 957 jobs that were performed by one or other of the alternative suppliers in the period from 27 September 2005 to 31 July 2008 ('Claim Period').

30 The 'Amcor Displays Objection' concerns a subset of these Disputed Jobs, being the Amcor Displays Jobs that were performed by one or other of the alternative suppliers in the Claim Period, that Achilla contends were OME supplies that APA should have procured from Achilla on a 'business as usual' basis, and for which Achilla is now entitled to be compensated.

The Amcor Displays Jobs form a significant part of the quantum of the Holihan parties' claim

31 It is common ground that the Amcor Displays Jobs form a significant part of the quantum of the Holihan parties' claim. Relevantly, the Holihan parties submitted that, of the outstanding issues, the Amcor Displays question is likely to be 'the single most important'[21] one to be resolved: first, because the parties accept that it will determine, in part, the answer to what the special referee might need to look at; and secondly, because of the quantum at stake. In that regard, counsel for the Holihan parties informed the Court that some idea of the relativity of the Amcor Displays' work in question can be gleaned by reference to the figures that were produced as a result of the work performed by their accounting expert, Mr Meredith, before the findings were made at trial. Counsel for the Holihan parties submitted:[22]

On our calculations, the Displays work done by the alternative suppliers is valued at a total - and this, of course, is taking the figures that were produced as a result of Mr Meredith's work before the findings at trial, but because it's all relevant, not absolute, it's useful to look at it this way - $3.867 million, and of that 3.867, Mr Mines has found that the work in question would have been "usual course of business" work and, therefore, gone to Achilla, subject to the outcome of the Displays objection, in the amount of $3.347 million.

32 In response, the position adopted by the Amcor parties is that Achilla is not entitled to any compensation for the Amcor Displays Jobs that were sent to one or other of the alternative suppliers in the Claim Period, in essence because Amcor has provided Achilla with the 'small amount' or 'small proportion' of Amcor Displays' work that the Court found it was obliged to obtain from Achilla following the sale of the ACB Business.[23]

The special referee was directed not to determine the 'Amcor Displays Objection'

33 As noted earlier, the orders made by the Court on 6 February 2018, appointing Mr Mines as the special referee, identified the 'Amcor Displays Objection' as a separate issue that was not to be determined by him. In those orders, the 'Amcor Displays Objection' was defined as, in effect, any objection of the Amcor Parties to Achilla's claim for a job on a 'business as usual basis' on the ground that the job was an Amcor Displays Job.[24]

34 As the special referee has now delivered his report, it is a matter for the Court to determine how the Amcor Displays Objection is to be resolved. As a first step in that process, it is convenient to set out the relevant findings made by the Court as to the proper construction of clause 12.2 of the Second Sale Agreement insofar as it concerns Amcor Displays.

Relevant findings made by the Court as to the proper construction of clause 12.2 and Amcor Displays

35 In its Reasons, the Court found that when the provisions of clause 12 are viewed in the context of the whole of the Second Sale Agreement and the surrounding circumstances, the purchase obligation imposed on ACB Co Vendor under clause 12.2 to obtain 'all its OME supplies' from Achilla 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.

36 The relevant 'surrounding circumstances' informing that 'business as usual' construction were summarised as follows:[25]

The surrounding circumstances known to the parties and the purpose and object of the transaction

. . .

[422] At the time of sale, the ACB Business was regarded by Amcor as an underperforming business in the sense that it was not meeting Amcor's 'return on funds employed' (ROFE) benchmark. When ACB Co Vendor sold the assets and undertaking of the ACB Business to the Holihan parties, it was the sale of a going concern, and it was envisaged on both sides that after the sale, the ACB Business would continue to do the OME work that historically had been routed through the ACB Business prior to the sale, using the same equipment and at the same premises. Further, raw materials required by the ACB Business (under new ownership) would (continue to) be supplied by ACB Co Vendor sourced from the corrugated box plants at AFP Smithfield and AFP Revesby at D & D prices agreed between them, and the ACB Business would (continue to) perform OME work for customers of the corrugated box plants at AFP Smithfield and AFP Revesby at D & D prices agreed between them, and the PICK and PCS systems would (continue to) be used for ordering, quoting and scheduling the work to be undertaken by the ACB Business (under new ownership). In that sense, the ACB Business (under new ownership) would operate in much the same way as it had in the past, and work for customers would be ordered and received in much the same way as before, and at the same or similar pricing. To facilitate that course, the Wetherill Park premises from which the ACB Business operated were to be sub-leased to the Holihan parties by APA and the ACB Business (under new ownership) would continue to have access to the corrugator located there. And the Holihan parties were permitted to offer employment to any of the 'Employees' (defined to mean the employees of the Vendor engaged in the Business as listed in Annexure 7) with effect from the Completion Date.

37 The Court noted that under the 'business as usual' construction, notwithstanding the sale to the Holihan parties, the ACB Business (under new ownership) would effectively continue on the same basis as before (i.e., when conducted by ACB Co Vendor).[26] 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.

38 In the case of Amcor Displays, the Court concluded that at the time the Second Sale Agreement was entered into, the entirety of the OME requirements of Amcor Displays were not encompassed by the clause 12.2 obligations. Relevantly, the Court found:[27]

Period before the Deed of Accession was entered into

. . .

[489] As a matter of construction, the Amcor Displays' work is not captured by the express language of clause 12.2. Amcor Displays was not part of ACB Co Vendor, and so the Amcor Displays' work did not form part of 'its' OME supplies. In my view, when one looks to the surrounding circumstances in order to arrive at the proper construction of clause 12.2, the objective evidence confirms that the entirety of the OME requirements of Amcor Displays was not encompassed by the clause 12.2 obligations. Relevantly, at the time the Second Sale Agreement was entered into, there was a separate arrangement in place with ACE Print to perform work for Amcor Displays, of which Mr Holihan was aware. Amcor Displays was operated and conducted separately from the ACB Business (operated and conducted by ACB Co Vendor) and also separately from the AFP corrugated box plants at Revesby and Smithfield. In the period immediately prior to the sale of the ACB Business, Amcor Displays was not being managed by a staff member of AFP, but by Mr Hottes who was doing so on contract. Amcor Displays had its own estimating staff who would quote and arrange the routing of work. Amcor Displays also had access to the PICK system but, as Mr Nellies observed, 'technically, Amcor Displays was a customer' so that they should have been placing orders with Amcor in the same way that a customer would place orders.

[490] While the evidence shows that the small amount of work that was performed by the ACB Business for Amcor Displays prior to the sale was, however, taken into account in estimating the volume of work that would likely be performed by the ACB Business in the first contract year, and thereby in arriving at the D & D rates that would apply, that scintilla of evidence does not entail the consequence that all of the Amcor Displays' work was captured and brought within the scope of the clause 12.2 obligation. 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.

39 Following the entry into the Deed of Accession, from 21 March 2005, APA (the parent of ACB Co Vendor) became the party that was bound by the Second Sale Agreement. The Holihan parties submitted that in circumstances where APA had become the named vendor, on a plain reading of clause 12.2 APA was required to obtain all its OME supplies of Products from Achilla save where the exception '...other than due to Achilla's inability...' was enlivened. The Amcor parties did not accept that the novation effected by the Deed of Accession gave rise to any enlarged operation of the Second Sale Agreement and they disputed that the effect of the Deed of Accession (and in particular, clause 2.1) was to bring the Amcor Displays' work within the clause 12.2 obligations, save to the extent that the notion of 'business as usual' might continue to capture the small amount of work that the ACB Business performed historically for Amcor Displays.

Period following execution of the Deed of Accession

. . .

[495] Between the time of entry into the Second Sale Agreement and the Deed of Accession being executed, the position concerning Amcor Displays had changed. Importantly, the contractual arrangement with ACE Print had been terminated, and the Amcor Displays' OME work was being routed by the estimators at Amcor Displays (and not the AFP estimators) and performed variously by one or other of the alternative suppliers and in some cases by Achilla. Further, the Holihan parties (via Achilla) had entered into a management agreement with APA whereby Achilla's employee, Mr Daaboul, was undertaking the management of 'the NSW Displays Division' of APA. However, Mr Manser had informed Mr Holihan that the arrangement would not be extended beyond 30 June 2005 because he was going to relocate the purchasing functions of Amcor Displays NSW to Victoria and have them run from a Service Containers business. Accordingly, at the point at which the Deed of Accession was entered into, the arrangements pertaining to the Amcor Displays' work were markedly different to those in place concerning the OME work then being performed by Achilla under the Second Sale Agreement.

[496] The evidence given by the respective parties concerning the entry into the Deed of Accession, which is summarised earlier in these reasons (under Issue 1(c), 'Background to the Deed of Accession'), is of limited assistance. The evidence is that it was initiated by the Amcor parties, having been discussed internally at a management level before being communicated to Mr Holihan on 16 February 2005, when he received an email from Mr Lewis regarding ACB Co Vendor which attached a draft 'Deed of Accession'. In the covering email, Mr Lewis referred to Amcor's continuing practice of 'remov[ing] company structures no longer required' and said that they wish to place ACB Co Vendor in voluntary liquidation and deregister it, and to facilitate that course it was necessary to 'assign any existing contractual obligations to the main Amcor company, namely Amor [sic] Packaging (Australia) Pty Ltd liquidation.' Mr Holihan referred the proposed deed to his solicitor, Mr Roe, for review and once his comments were to hand, Mr Holihan forwarded them to Mr Lewis for his consideration the same day. The Deed of Accession was executed by the parties a few days later.

[497] The Holihan parties submit that the Deed of Accession was correcting a mistake and really putting into place or formally recording what was the existing practice between the parties. In my view, the objective evidence does not support that position. It is not one that is recorded or otherwise evident in either the contemporaneous correspondence exchanged between the parties or the recitals to the Deed, and does not reflect what was the (then) existing practice between the parties. Furthermore, there was no discussion between the parties about enlarging the scope of the contractual undertaking so as to encompass all of Amcor Displays' OME requirements within the clause 12.2 obligation. Were that proposed to occur, it was necessary for the Amcor parties to discuss the matter with Achilla. That is because any change to the scope of the clause 12.2 obligations would have implications for Achilla, particularly in circumstances where it was required to supply finished products to the Vendor 'at prices based on D & D costs to Achilla'.

41 The foregoing findings make clear that the only basis available to the Holihan parties to claim that after the sale of the ACB Business any Amcor Displays' work should have been performed by Achilla lay in the 'business as usual' construction, and then only to the extent that the notion of 'business as usual' entailed that Achilla might continue to capture the OME work that the ACB Business had performed historically for Amcor Displays.

42 In the circumstances, it follows that Achilla was required to adduce evidence about the OME work that the ACB Business had performed historically for Amcor Displays so as to demonstrate the particular OME jobs or kind of OME work performed for Amcor Displays before the sale that it contends on a 'business as usual' basis were to continue to be performed by Achilla following the sale.

43 In seeking to demonstrate the work that the ACB Business had performed historically for Amcor Displays, Mr Holihan gave evidence at the trial of the counterclaim about the general types of OME work that the ACB Business performed prior to the sale, when he was its General Manager, and also the customers (or customers of AFP) for whom the ACB Business performed work. The Court summarised that evidence, as follows:[29]

Relevantly, at that time of the sale, the largest customer of the ACB Business by turnover was AFP, in the sense that work done for AFP's customers provided something in the vicinity of 80% of the work being performed by the ACB Business. Mr Holihan said that the AFP customers for whom the ACB Business did work included sales groups within AFP such as 'Heavy Duty', 'Fruit and Veg', and Amcor Displays, although the ACB Business did not do very much work for Amcor Displays because, shortly after the ACB Business obtained a litho laminating machine in June 2001, AFP entered into a supply agreement with ACE Print & Display Pty Ltd ('ACE Print') in relation to Amcor Displays' work.

44 The Court also noted that Mr Holihan had acknowledged, under cross-examination, that he was aware that AFP's contract with ACE Print did not relate only to Amcor Displays' work, and he said he believed 'that AFP would have had all of its screen print work made by Ace and then Ace did other things as well'.[30]

45 Further evidence about the quantum of the Amcor Displays' work performed by the ACB Business prior to the sale was given by Mr Holihan and others in the context of their evidence about the D & D pricing mechanism embodied in the Second Sale Agreement.

46 As was explained in the Reasons, the D & D pricing mechanism was developed by the parties in consultation with each other prior to entry into the Second Sale Agreement. The acronym 'D & D' (a reference to the 'direct and distribution costs') was defined in clause 1.1 to mean 'the applicable costing base of products for the purposes of calculating costs in relation to clause 12 as shown in Annexure 5'. The objective of the D & D costs mechanism was to allow the Vendor, or Purchaser or Achilla (as the case may be) to recover their respective 'direct and distribution costs' involved in the supply of raw materials on the one hand, and the supply of finished products on the other, on the basis of an effectively agreed pricing.

47 Generally speaking, it was through the D & D pricing mechanism that ACB Co Purchaser/Achilla would recover its fixed costs of operating the ACB Business. The pricing that was to apply in the first year of operation of the ACB Business (under new ownership) was to be arrived at by reference to the pricing that applied to the historical actual throughput from the Wetherill Park plant as operated by ACB Co Vendor preceding the sale, and ratcheted up in each contract year by the agreed margin(s) specified in clause 12. In that way, with the D & D pricing mechanism in place under the Second Sale Agreement, an estimator who was quoting on a job or order to be placed with the ACB Business, could enter the job details into the PICK system and the PICK system would generate a costing or quote for the item of proposed work.[31]

48 The Holihan parties led evidence about the process engaged in between the parties at or around Completion, and in subsequent years, to agree upon the D & D costs mechanism that was to apply to supplies made under the agreement. Primarily, that evidence was given by Mr Papadimatos, who worked as an accountant in the ACB Business (under new ownership) from shortly before Completion until 2010. Mr Holihan and Mr Joyce also gave evidence about aspects of this process.

49 The First Year Budget, headed 'AFP-Wetherill Park-Factory Recovery & Machine Rates-Period 1/07/03 to 30/06/2004 (12 months)' (and referred to at trial as 'exhibit H91A'), was based on Annexure 5 to the Second Sale Agreement. The First Year Budget assumed that the same volume would be manufactured in the 2003/04 year by the ACB Business under the new ownership as was (in fact) manufactured by the ACB Business under Amcor ownership in 2002/03.[32]

50 In the Reasons, the Court noted that there was some unchallenged evidence that the machine rates agreed between the parties for the purpose of the D & D calculation 'included some Amcor Displays' volume', which was recorded separately from the AFP work, as follows:[33]

. . . The data tables accompanying the June 2003 profit & loss statement, headed 'Amcor Fibre Packaging - Recovery of Wetherill Park Labour, Variable and Fixed Costs Based on Machine Hours, MTD June 03', give the detail for the components of the $2.622m that is referable to the recovery of the cost of work done for AFP and Amcor Displays by machine hour, and confirm that the sum of $172,097.83 represents 'Management Unit C' being 'Amcor Displays' and the remaining sum of $2,450,225 represents 'Management Unit A' being 'NSW Box'.

51 In a context where Mr Holihan's evidence was that prior to the sale 'the ACB Business did not do very much work for Amcor Displays' and the machine rates data tables recorded the Amcor Displays' work performed by the ACB Business as comprising only $172,097.83 out of the $2.622 million total, the Court, in its Reasons, concluded in respect of 'Issue 3(b)(ii): Purchases of OME for the business known as "Amcor Displays"' as follows:

[666] The rival contentions concerning OME work that was performed for Amcor Displays have been considered earlier in these reasons. As will be apparent, I have concluded that the work done by the alternative suppliers for Amcor Displays was not encompassed within the clause 12.2 purchase obligation, save to the extent that the notion of 'business as usual' might continue to capture the small amount of work that the ACB Business had performed historically for Amcor Displays.[34]

[667] Accordingly, save in respect of that small portion of work that the ACB Business performed historically for Amcor Displays, the Holihan parties are not entitled to recover any loss and damage in respect of the Amcor Displays' work.

52 It is against that background that the Holihan parties now effectively seek to have the Court re-visit the issue of Amcor Displays' work and determine which (if any) of the jobs the subject of the Amcor Displays Objection are jobs for which Achilla is entitled to be compensated.

Determination of the Amcor Displays Objection - for what (if any) Amcor Displays jobs is Achilla entitled to be compensated?

53 Achilla's principal submission is that it is entitled to be compensated for all of the Amcor Displays' work that the special referee has identified as satisfying the 'business as usual' test. In effect, Achilla contends that the 'business as usual' concept should be the sole criterion by which the Amcor Displays Objection is determined.

54 Alternatively, as a fallback position, Achilla says that if the Court finds that it was entitled to something less than the entirety of the Amcor Displays' work that the special referee has identified as satisfying the 'business as usual' test, then:[35]

(a) Achilla should be awarded 64.33 per cent of the total value of the Amcor Displays Jobs (less the value of such Amcor Displays' work that it actually did) that being the proportion of the Amcor Displays' work that Achilla did in the year preceding the Second Sale Agreement; or, alternatively

(b) for each year of the Claim Period, Achilla should be awarded damages equal to the value of Amcor Displays' work that it did in the year preceding the Second Sale Agreement (again, less the value of such Amcor Displays' work that it actually did).

55 The alternative approaches advanced by Achilla are put forward as the Court adopting a 'doing the best it can' approach to the assessment of loss on the available evidence. The second alternative effectively amounts to the Court finding that the 'best it can do' on the available evidence is to say, having regard to the 'business as usual' findings, that the minimum amount of the Amcor Displays' work that Achilla should have been given is likely to be the same amount as that obtained in the year immediately prior to entry into the Second Sale Agreement, pro-rated across the Claim Period. That is, taking the $172,097.83 that was received in the 2002/2003 financial year, and pro-rating it for the periods of less than a year at the beginning and end of the Claim Period (which in total is 33 months).

56 Achilla acknowledges that if either of the fallback positions is adopted, the Court will also be required to identify what amount of Amcor Displays' work Achilla actually received, because that is an integer that goes to the calculation of the 64.33 per cent. As Achilla did receive some work during the Claim Period, the value of that work has to be brought to account and subtracted so as to ensure there is no double-counting. To assist in that regard, Mr Holihan, in his further affidavit,[36] has identified the value of the Amcor Displays' work that Achilla actually received during the Claim Period as being $49,423.04 (including GST).

57 The Amcor parties, on the other hand, submit that Achilla has already received the small amount of the same sort of Amcor Displays' work that the Court found on a 'business as usual' construction of the clause 12.2 obligation it was entitled to continue to receive following the sale of the ACB Business, and it is not entitled to receive compensation for anything more. In this regard, Amcor referred to and relied on the findings made by the Court in its Reasons, as mentioned above.

58 As to the value of the Amcor Displays' work that Mr Holihan has identified Achilla did receive, the Amcor parties submit that there is a prospect that there were some additional jobs that were AFP or Service Containers jobs that were mis-described - where sometimes work was invoiced to AFP even though it was for Amcor Displays - which should be brought to account. But in advancing this argument, counsel for the Amcor parties effectively acknowledged that their Service Containers' argument was not a strong one.[37]

There is no mis-description of Amcor Displays jobs (as Service Containers or AFP jobs) in Achilla 1A

59 Counsel for the respective parties referred the Court to several examples of jobs recorded in Achilla 1A. To further assist the Court, during the course of the hearing the Holihan parties prepared an extract of Achilla 1A by printing every row that begins with the Service Containers description, so as to capture all of the jobs relevantly described as being Service Containers jobs. That document, headed 'Extract of Achilla 1A (Service Containers)',[38] was produced to the Court as an aide-memoire during the hearing.

60 In most rows shown in the extract, the column headed 'PD Description' is blank, but there are some rows where a description is given, such as '1220Mm X 41M S/Face Rolls', '915Mm X 55M S/Face Rolls', '1525mm X 33m', '760Mm X 66M S/Face Rolls', indicating that the job was for single face rolls of corrugated cardboard. In some of the other cases where the column headed 'PD Description' is blank, the columns headed 'Invoice type' and 'Description' record 'pallets' and '60 Chep' respectively, indicating that the job involved the return of Chep pallets, for which no charge was involved. There are a couple of other instances where the columns headed 'Invoice type' and 'Description' record 'pallets' and '60 Chep ACB Non Return' (or 'Non Return Pallet') respectively, indicating that the job involved the non-return of Chep pallets, for which a charge was involved. There is also an entry where the description records 'Freight incorrectly charged to customer'.

61 Counsel for the Holihan parties submitted that so far as they can ascertain from their inspection of the entries recorded in the 'Extract of Achilla 1A (Service Containers)' document, all of the Service Containers entries there recorded answer the description of one or other of three items, being 'blank' entry, 'single faced pads' or 'pallet' (or non-return pallet) respectively.[39] The evidence given at the trial of the counterclaim about products such as single face pads or single face rolls was to the effect that they are a fairly basic or rudimentary corrugated cardboard product.[40] Single face pads or rolls are unlike the typical range of products produced for Amcor Displays, being point of sale cardboard displays of the kind used in supermarket aisles and chemist shops. Accordingly, the Holihan parties submitted that there is nothing in any of those Service Containers jobs that suggests that they are in any way to do with Amcor Displays.[41]

62 I share that view. It follows that I am not satisfied that there is any real prospect that there were some additional jobs performed for Amcor Displays by the ACB Business during the Claim Period that were that were mis-described as Service Containers jobs.

63 A similar position applies in the case of the AFP jobs performed by Achilla during the Claim Period that the Amcor parties submitted might have been mis-described. The Amcor parties prepared a one-page document headed 'Extract of example AFP invoices from Achilla 1A re Displays Work' to illustrate the kind of jobs in question. In that extract, the 'PD Description' column records the relevant jobs performed for AFP variously as '503121-699Pk 501498 Cool C D/C Display', '71235-008Pk Display Outer Outer Aust Print' and '51806-024PK ZSHDS Display shipper'.

64 It is unclear what product a 'D/C Display' or a 'Display Outer' is. In that regard, the Court was not referred to any evidence adduced at the trial of the counterclaim that would assist to clarify the matter. But the mere presence of the word 'Display' or 'D/C Display' does not, as counsel for the Holihan parties submitted, mean that the job was one that was ordered by Amcor Displays.[42] It follows that I am not satisfied that there is any real prospect that there were some additional jobs performed for Amcor Displays during the Claim Period that were that were mis-described as AFP jobs.

Achilla is not entitled to all of the Amcor Displays' work that the special referee has identified as satisfying the 'business as usual' test

65 Essentially for the reasons advanced by the Amcor parties, I am not satisfied that Achilla is entitled to an award in damages for all of the Amcor Displays' work that the special referee has identified as satisfying the 'business as usual' test.

66 It will be recalled that, in the principal judgment, the factual findings made by Vickery J were to the effect that Amcor Displays was conducted under the umbrella of the Service Containers business located at Revesby, which was separate from the ACB Business conducted at Smithfield and Wetherill Park.

67 In its Reasons concerning the counterclaim, the Court found that the Amcor Displays' work is in a different position to the general body of AFP work performed by the ACB Business. Accordingly, for present purposes, the starting point is the Court's conclusion that, as a matter of construction, the Amcor Displays' work was not encompassed within the clause 12.2 purchase obligation, save to the extent that the notion of 'business as usual' might continue to capture the small amount of work that the ACB Business had performed historically for Amcor Displays.

68 In oral submissions made on behalf of the Amcor parties, counsel summarised the practical operation and effect of the Court's construction, as follows:[43]

[T]he logical structure of clause 12.2, outside of a Amcor Displays' context, is as follows: if it is OME work of the kind that Achilla would ordinarily do, then unless the Amcor parties could show that it was repeat work, then, prime facie Achilla was entitled to it, subject to the carve out, because clause 12.2, on its proper construction, had the result that OME work fit within clause 12.2, unless it was, say, screen-printing.

Amcor Displays is actually the same logical structure but in reverse. If it's Amcor Displays' work, then, the starting point is: Achilla is not entitled to it unless, effectively, exactly like repeat work, unless they can show that they were doing that work prior to the sale.

Then they are entitled to do so. [It is the] [e]xact same logical structure but flipped because the default position is flipped. Default position, as [y]our Honour said, is that Amcor Displays is not in clause 4.2 [sic.] unless "business as usual". For every other sort of OME work, except screen-printing and maybe one or two others, the default position is: you're in clause 12.2 unless repeat work.

The evidence before the Court does not disclose the total value of the Amcor Displays' work that was available to be performed prior to the sale

69 It is common ground that the evidence before the Court does not disclose the total value of the Amcor Displays' OME work that was available to be performed prior to the sale.

70 The Holihan parties contend that in the financial year preceding the Second Sale Agreement the position concerning the OME work performed for Amcor Displays was as follows:[44]

(a) the ACB Business did $172,097.83 worth of Amcor Displays work;

(b) ACE Print performed $63,629.28 worth of work for AFP (including Amcor Displays) between July 2002 and February 2003. If that figure were annualised for the financial year it would be $95,443.92;

(c) JS Cutting [including Stan's] did [$5,413][45] worth of Amcor Displays work;

(d) none of Le Breton, Thompsons, All Pack or Northwest Packaging did Amcor Displays work; and

(e) there is no evidence of Amcor Displays work being performed by any other OME supplier.

71 The Holihan parties acknowledge that '[t]here was no evidence of the total volume or value of OME work sent out by Amcor Displays at any point prior to the Second Sale Agreement'.[46] In their outline of submissions, they sought to explain the reason for this, as follows:[47]

The value and amount of available Amcor Displays work pre-sale and the proportion of available Amcor Displays work pre-sale that the ACB Business in fact did were not the subject of the Amcor Parties' pleaded case and there was no discovery about such issues.

Once opened, the gist of the Amcor Parties' case was that Amcor Displays work did not form part of the "business as usual" undertaking that the Second Sale Agreement embodied; it was a discreet [sic] business unit not captured by the supply obligation. . .

The Amcor Parties did not open a case on the basis that the business as usual concept, propounded by them, encompassed a small (or any other) amount of Amcor Displays work.

While the Court itself raised whether or not there was a course of dealing in relation to the Amcor Displays work pre-sale that might have seen the sort of work that the ACB Business did for Amcor Displays pre-sale go across to the purchaser . . . and the Amcor Parties' Senior Counsel said in opening that "whether and if so how much and why" Amcor Displays actually sent work to the ACB Business prior to the sale would be the subject of cross-examination . . . and was "the $3,000,000 question" in relation to breach . . . the Amcor Parties did not seek to amend their pleading to assert that their "business as usual" construction of the supply obligation included an amount or proportion of Amcor Displays work, they did not in opening articulate any amount of Amcor Displays work which their business as usual construction embraced or otherwise accommodated and Mr Holihan was not cross-examined about the issue.

Specifically, Mr Holihan was not cross-examined about, and there was no specific discovery order about, matters such as: (a) the total amount (by value) of available Amcor Displays OME work pre-sale; (b) how the $172,097.83 that the ACB Business compared with the amount (by value) of work done by other OME suppliers pre-sale, including Ace Print; (c) what sorts of jobs the $172,097.83 related to; whether any of the Alternative Suppliers were doing OME work for Amcor Displays pre-sale and, if so, the amount (by value) of that work and what sorts of jobs that work was referable to; and (d) the amount of OME work that Achilla in fact did for Amcor Displays post-sale and what sorts of jobs that work related to.

72 In these circumstances, the Holihan parties submit that the Court 'should infer that the Displays work sent to J S Cutting involved solely the production of knives', which the ACB Business did not do. Accordingly, on the evidence before the Court, the Holihan parties maintain that 'business as usual' for Amcor Displays involved all OME work other than the production of knives being sent to either the ACB Business or ACE Print, the value of which in the 2003 financial year totalled $267,541.75.

The Holihan parties' submission misunderstands the operation of the 'business as usual' construction arrived at by the Court

73 As will be apparent, the Holihan parties effectively seek to sidestep the Court's construction of clause 12.2, and treat the Amcor Displays' work as falling within the clause 12.2 obligation in much the same way as do the AFP jobs. Indeed, in their outline of submissions the Holihan parties acknowledge that 'there may have been no specific obligation for the Amcor parties to send the ACE Print jobs to Achilla' but they submit nevertheless that 'once it became untenable to send them to ACE Print, "business as usual" would have involved sending the remainder of the non-knife work to Achilla'.[48] In my view, that approach misunderstands the operation of the 'business as usual' construction arrived at by the Court.

74 In the context of the ACE Print contract, the position is, as counsel for the Amcor parties observed, that prior to the Second Sale Agreement, Achilla was not doing the work that ACE Print was doing. In other words, it was not 'business as usual' for Achilla to undertake the Amcor Displays' work performed by ACE Print.

75 Further, as counsel for the Amcor parties observed, the 'fundamental difficulty' with the case being advanced by the Holihan parties is that it 'attempts to describe a world where Amcor is always bound to place Amcor Displays' work in one place or another [and] really seeks to inject content into the contractual obligation, which is just not there, [and] misunderstands what "business as usual" means'.[49]

76 Accordingly, the position is (as the Amcor parties submitted) that once ACE Print ceased doing that Amcor Displays' work, it did not follow that Achilla became entitled to perform that work. That is because Amcor Displays' work is not encompassed within the clause 12.2 purchase obligation, save to the extent that the notion of 'business as usual' might continue to capture the small amount of work that the ACB Business had performed historically for Amcor Displays.[50]

The evidence before the Court supports a finding that the ACB Business performed only a 'small part' of the Amcor Displays' work in the pre-sale period

77 As part of their primary case, the Holihan parties also sought to take issue with the Court's finding concerning the amount of Amcor Displays' work performed by the ACB Business prior to the sale. They submitted that the evidence before the Court does not support a finding that the ACB Business performed only a 'small part' of the Amcor Displays' work in the pre-sale period. In those circumstances, counsel for the Holihan parties submitted that by virtue of the decisions in Fletcher Construction Australia Ltd v Lines McFarlane & Marshall Pty Ltd[51] and Elliott v R[52] 'it's open to the court now, judgment not having been entered, to revisit that finding'.[53]

78 In this regard, they refer to the evidence that the value of the Amcor Displays' work performed by the ACB Business during the financial year preceding the entry into the Second Sale Agreement was $172,097.83, noting that it was 'one component (only 6.6%) of a total of some $2.622 million of OME work performed by the ACB Business for the whole of Amcor' and 'was not evidence as to the proportion of all the available pre-sale Amcor Displays OME work that the ACB Business actually did'. They submit that '[i]t is in that context that Mr Holihan's evidence that the ACB Business "did not do very much work for Amcor Displays" prior to the sale is to be understood'.[54] They also point to the (inferred) total of the value of the Amcor Displays' work available in the financial year preceding the Second Sale Agreement, of $267,541.75, and observe that the $172,097.83 provided by the ACB Business represents 'some 64.33%' of the available work.[55]

79 Counsel for the Amcor parties submitted that the Holihan parties' attempt to re-open the 'small' finding 'proceeds on the wrong footing' and a misunderstanding of what the Court has found and the reasons given in the principal judgment.[56]

80 I share that view. When the extract from Mr Holihan's witness statement (set out in italics at paragraph 78 above) is viewed in the context of the surrounding paragraphs of his witness statement (paragraphs 160 and 163 in particular), and the oral evidence he gave at trial, the impression conveyed is not to the effect that prior to entry into the Second Sale Agreement the ACB Business was performing all or even a significant proportion of the Amcor Displays' work.[57]

81 Some indication of this can be gleaned from the following passages of Mr Holihan's witness statement:[58]

Income streams of the ACB Business

[19] When I was General Manager, the ACB Business obtained its income from two streams.

[20] First, the ACB Business had its own customers (ACB Customers) who purchased packaging products from ACB Vendor. Sometimes those products were corrugated cardboard or paper-based (e.g. printed or plain boxes); sometimes they were not (such as packaging tape, wrapping and labels). The ACB Business did not manufacture the products that were not made from board or paper. It bought them from third parties and on-sold them to its customers. These customers were managed by the ACB Business' sale team.

[21] Most of the corrugated products that the ACB Business sold to its customers were manufactured, either in part or in whole, by AFP. In this sense, AFP was a supplier of corrugated products to the ACB Business and ACB Vendor acted as a re-seller. Sometimes, the corrugated products were treated (or 'finished') by the ACB Business before on-sale.

[22] The second income stream of the ACB Business was income earned from work that it did for AFP businesses, for their customers (AFP Customers). The AFP businesses that the ACB Business did work for included sales groups within AFP such as Amcor Displays, 'Heavy Duty' and 'Fruit and Veg', although the ACB Business did not do very much work for Amcor Displays because shortly after the ACB Business obtained a litho laminating machine in June 2001 (see paragraph 24(a) below), AFP entered into a supply agreement with ACE Print & Display Pty Ltd (ACE Print) in relation to Displays' work (see paragraph 72 below). In this sense, the ACB Business competed with third party suppliers for work from AFP. Work sourced from a third party was referred to within Amcor as 'OME' work. It was also called 'tolling', 'toll manufacturing', 'toll converting' or 'closure work'. The third parties that supplied it were referred to as 'OMEs'. This work that the ACB Business did for AFP (for simplicity, I refer to this work as 'OME work' even though it was done by an Amcor business) was ultimately for AFP Customers.

OME work done by the ACB Business for AFP

[23] While I was General Manager, the OME work that the ACB Business did on behalf of AFP (for AFP Customers) formed a very large amount of the total sales invoiced out of ACB Vendor. Immediately prior to completion of the Sale Agreement (see paragraph 110 below), AFP was the largest customer of the ACB Business by turnover. . .

. . .

Operation of ACB Business - August 2003 to December 2004

. . .

Discussion with Amcor regarding Amcor Displays

[158] On 23 October 2003, I received an email from David Manser (Manser) who was the Commercial Manager, Specialty Group, AFP [CB5/1857]. The email concerned a specialty group information technology meeting that was scheduled for the next day to discuss the specialty group (including Amcor Displays New South Wales which was a customer of Achilla's) moving off the PICK system.

[159] In November 2003, Caldow telephoned me. I cannot recall exactly what Caldow said but in substance he asked if I would be happy to enter into some sort of arrangement for Amcor Displays to relocate to Wetherill Park and for George Daaboul (Daaboul), an employee of mine, to be seconded to AFP to manage the Amcor Displays business. I knew that Caldow knew Daaboul because we had all worked together previously at Visy Board (Visy). Caldow also said that the work that AFP was doing for Amcor Displays in-house at its Revesby and Smithfield factories would now be routed to Achilla. He said he could send me a fax of some notes that he had made about his current thinking.

[160] I saw this as a tremendous opportunity for Achilla for reasons including that it would give Achilla insight into the OME work that Amcor Displays had. I understood that work to be under contract with ACE Print at the time. I also thought Caldow's proposal aligned with the discussion that I had had with Kent in March (which I had followed up with a series of discussions in September and early October) regarding an alliance in relation to screen-printing work because Amcor Displays had work that required screen-printing. I saw there was an opportunity at picking away at the ACE work. I understood that the ACE contract was to expire sometime into the period of the Achilla Supply Agreement.

[161] On 17 November 2003, I received a fax from Caldow regarding Amcor Displays [CB3/0933]. The facsimile set out the details of the proposal that Caldow and I had discussed at that time.

Heads of agreement with Thompsons (December 2003)

[162] In around November 2003 I made enquiries about a site at 21 Tarlington Place, Smithfield (Tarlington Place). I made those enquiries because I was starting to seriously think about some sort of alliance with Kent in relation to screen printing and litho lamination work following on from our earlier discussions.

[163] In December 2003, I caused Achilla to enter into a heads of agreement with Thompsons [CB7/2481]. By then Achilla was doing some work for Amcor Displays, and in deciding to enter into the heads of agreement, I was mainly interested in Thompsons' ability to support Achilla in that work. At that point, I understood that most of the Amcor Displays OME work was done by ACE Print but I hoped that would change, especially after my discussion with Caldow in November. Having sat in on the monthly AFP management meetings, and being familiar with the work required in producing corrugated cardboard displays, and having visited the Displays site, I knew that Achilla was able to perform all of the operations involved in the manufacture of displays except for screen printing.

[164] Kent and I discussed that Achilla would receive orders from AFP, Thompsons would do screen-printing and Achilla would otherwise complete the OME work as required - i.e. by die cutting, litho laminating, gluing and packing.

[165] On 1 December 2003, Thompsons and Achilla entered into a lease as tenants in common in equal shares of 21 Tarlington Place. Shortly afterwards, Achilla moved machinery from the factory at Wetherill Park to Tarlington Place. This included the Grassi No 1 litho laminator, slitter, bandsaw, partition slotter, the Mecanelec, gluers and three die cutters. Thompsons continued to do its screen printing in Tamworth but did all of its other work from Tarlington Place, so I became very familiar with the machines it had and the work that it did.

82 Mr Holihan's evidence also falls to be considered against the background of the factual findings made by Vickery J in the principal judgment concerning the historical position of Amcor Displays from early 2002. Relevantly, it will be recalled, his Honour found that the Amcor board determined it would retain the Amcor Displays business (which was profitable) and engaged Mr Hottes as an independent contractor to operate it. Mr Holihan's evidence must also be considered in light of the evidence given by other witnesses at the trial of the counterclaim about the re-location of the Amcor Displays team to Wetherill Park in mid-2004, through to June 2005, when Mr Manser informed Mr Holihan that he was going to relocate the purchasing functions of Amcor Displays NSW to Victoria and have them run from a Service Containers business.

83 In its Reasons, the Court summarised the position concerning Amcor Displays, as follows:[59]

Prior to the sale, Amcor Displays was located at Revesby

[450] Amcor Displays was a graphics and displays business, that sold and supplied cardboard-based point of sale products such as display stands and storage bins of the kind seen in chemist stores and supermarket aisles. The Amcor Displays business was initially located at Milperra Road, Revesby, but it was relocated to Wetherill Park in mid-2004 and then to Enfield after that.

[451] In the principal judgment, Vickery J found that prior to entry into the First Sale Agreement on 1 February 2002, the Amcor Displays business was a component part of the Service Containers Business but, being profitable, it was retained by Amcor and did not form part of the sale of the Service Packaging Business that was sold to Mr Hottes. Prior to the sale of the Service Packaging Business, Mr Hottes was engaged as an independent contractor by Amcor to operate both the Service Packaging Business and the 'Displays Business'. After the sale, Amcor extended Mr Hottes' consultancy. Following the death of Mr Hottes in August 2004, however, a separate arrangement was entered into with the Holihan parties for Mr George Daaboul, an employee of the ACB Business, to go across to Amcor Displays and run that business as a manager.

[452] Mr Holihan gave evidence as to how that arrangement for the ACB Business (under new ownership) to provide a manager for Amcor Displays was reached. He said that in November 2003, Mr Alan Caldow, who was the National Specialty Manager for AFP, telephoned him and asked whether he would be happy to enter into some sort of arrangement for Amcor Displays to relocate to Wetherill Park and for Mr Daaboul to be seconded to AFP to manage the Amcor Displays business. Mr Holihan said he knew that Mr Caldow knew Mr Daaboul because previously they had all worked together at Visy Board. He said Mr Caldow told him that the work that AFP was doing for Amcor Displays in-house at its Revesby and Smithfield factories would now be routed to Achilla, and he could send Mr Holihan a fax of some notes that he had made about his current thinking. On 17 November 2003, Mr Holihan received a fax from Mr Caldow regarding Amcor Displays, setting out the details of the proposal that he and Mr Caldow had discussed.

[453] In his 'draft' proposal, Mr Caldow outlined the proposal as follows:

1. Relocate business from Milperra Road, Revesby to the ground floor of the ACB Building at Newton Road, Wetherill Park.
2. Route ALL flexo and converting operations that would normally go through Smithfield, through the ACB operation.
3. Source ALL external OME work from the open market on the basis of "ONE QUOTE---BEST OFFER" principle.
4. Appoint a General Manager to manage the operation which would involve the transfer of the current employees to the new site. ...

1. The planned timetable I have in mind would see this operating from 1st January 2004.
2. The person that has been nominated to Manage this operation is a current employee of ACB - George Daaboul. ...
3. As a matter of political correctness, ACE Print and Packaging should be notified of the manner in which we intend doing business in the future.
4. Ian Hotties (sic.) or a member of his business needs to be advised, and agreement reached on the allocation of lease costs, and shared services.

[454] Mr Holihan said he saw this invitation as a tremendous opportunity for Achilla because it would give Achilla some real insight into the OME work that Amcor Displays had. Mr Holihan said that having sat in on the monthly AFP management meetings, and being familiar with the work required in producing corrugated cardboard displays of the kind sought by Amcor Displays, and having visited the Amcor Displays site, he knew Achilla was able to perform all of the operations involved in the manufacture of displays except for screen printing.

Relocation of the Amcor Displays team to Wetherill Park (mid-2004)

[455] In or around early 2004, Mr Caldow left Amcor. Mr Holihan said that Mr Manser called him to let him know that he was now the acting Specialty Manager for AFP, and was aware of the discussions that had taken place with Mr Caldow regarding Amcor Displays, and he supported and wanted to move forward with the proposal to move Amcor Displays to Wetherill Park with Mr Daaboul as manager. During that conversation, Mr Manser also informed Mr Holihan that ACE Print had been bought by Visy Board, the contract with ACE Print had been terminated, and he was keen to move the existing ACE Print work across to Achilla as soon as possible. Some time after that conversation, Mr Holihan met with Mr Manser at Achilla's premises at Wetherill Park to discuss Amcor Displays and the physical space it would require for its sales team and customer service support.

Achilla enters into a management agreement with APA regarding Amcor Displays

[456] In or around mid-2004, Achilla entered into an agreement with APA whereby Achilla agreed to undertake the management of 'a Division of Amcor Displays Australasia in New South Wales' on a 'fee for service' basis to be paid by APA. The management agreement was executed by Mr Bayley on behalf of APA and by Mr Holihan on behalf of Achilla. Under the management agreement, Achilla's employee, Mr Daaboul, was designated as 'the person responsible for carrying out the management duties' and he was required to devote an average of 20 hours per week to that role. The agreement was to commence to operate from 1 July 2004 and cease on 30 June 2005 unless extended by agreement. In or around mid-2004, Achilla confirmed Mr Daaboul's terms of employment by letter, drafted mainly by Mr Manser, with input from Mr Holihan.

[457] Amcor Displays moved in to Wetherill Park in about July 2004 and Mr Daaboul took up the role of running the business. However, the position was soon reached whereby Mr Daaboul was spending more time working on the Amcor Displays business than first anticipated, and on or around 26 August 2004, ACB Co Purchaser and APA agreed to vary the management agreement in relation to Amcor Displays with effect from 1 September 2004.

[458] Mr Holihan said that the work that Achilla did for Amcor Displays increased markedly from around the time Amcor Displays relocated into the Wetherill Park site and it remained steady until late 2004. However, notwithstanding that the contract with ACE Print had been terminated, Achilla did not immediately get the work that ACE Print had been doing. ACE Print had apparently been asked to return the films and other tooling it held, but it was not until around September 2004 that the remaining material was returned to Amcor Displays at Wetherill Park.

Decline in OME work - Amcor Displays relocates

[459] During the first quarter of 2005, Mr Holihan first noticed a decline in the volume of OME work being received by Achilla from AFP. At about this time, Mr Manser told Mr Holihan that Amcor Displays would not be signing the deed to lease space from Achilla and that it would be moving out, which it later did. Mr Manser had also informed him that he was going to relocate the purchasing functions of Amcor Displays NSW to Victoria and have them run from a Service Containers business. The management agreement with Mr Daaboul was not extended and came to an end by effluxion of time on 30 June 2005.

. . .

Evidence as to the kind of OME work that the ACB Business (under Amcor ownership) did for Amcor Displays prior to the sale

84 During the recent hearing, the Court asked counsel for the Holihan parties to identify what evidence there was as to the particular OME jobs or kind of OME work that the ACB Business had performed historically for Amcor Displays.[60] Counsel for the Holihan parties referred the Court to some passages of evidence given by Mr Holihan, Mr Cichonski and Mr Silva that referred in general terms to the OME work known as 'displays work', none of which identified particular jobs that the ACB Business had performed for Amcor Displays prior to the sale. In those circumstances, the Court indicated that it wished for counsel to further investigate this aspect and leave was given for the filing of a supplementary written note addressing this issue following the hearing.

85 On 18 March 2019, the Holihan parties filed a supplementary note.[61] They indicated that it was 'not an agreed document between the parties' but added that the note had been provided to the Amcor parties. The Holihan parties said that they understood 'the Amcor parties do have some comments to make on this document, but [the Holihan parties] do not know what these might be'.[62] There was no further response and no other indication from the Amcor parties that they wish to respond.

86 The Holihan parties' 18 March 2019 note addressed three matters raised by the Court concerning the Amcor Displays' work, namely:

(a) Where is the evidence as to the kind of work that the ACB Business did for Amcor Displays prior to the sale?[63]

(b) Was there any evidence about how long Le Breton had been doing work for Amcor and/or Amcor Displays, and was there any evidence as to the quantum done for Amcor Displays pre-sale?[64]

(c) What volumes of Amcor Displays' work had performed before and after the sale and, in particular, whether:

(i) the volume of Amcor Displays' work had any effect on the prices which Amcor was to be charged using the D&D methodology, and therefore might be said to affect the calculation of damages;[65] and

(ii) what amount of Amcor Displays' work was done by Achilla during the Claim Period as a proportion of the total of all of its work performed for AFP?[66]

87 The first and second of these matters are considered below.[67]

Where is the evidence as to the kind of work that the ACB Business did for Amcor Displays prior to the sale?

88 The Holihan parties referred the Court to evidence given at the trial of the counterclaim by Mr Cichonski, Mr Silva, Mr Holihan, Mr Manser, Mr Joyce and Mr Whitechurch, as well as some general evidence given by witnesses about the type of work that the ACB Business did prior to the sale. As will be apparent from the extracts referred to below, for the most part, the evidence given by these witnesses was very general in nature and it falls short of providing any real insight into the particular OME jobs or kind of OME work that the ACB Business had performed historically for Amcor Displays.

89 Mr Anthony Cichonski was previously operations manager at the Revesby plant (from about 1995 until mid-2002) and then the regional operations manager of Amcor (between June 2000 to January 2005) following which he left to join the ACB Business (under new management) as the Operations Manager.[68]

90 As to the evidence given by Mr Cichonski, the Holihan parties stated:[69]

Mr Cichonski gave evidence that the ACB Business made boxes and displays and other corrugated products. He said that the work involved included, among other things, short run flat-bed die cutting, volume die cutting and litho laminating.[70] As there is no evidence that the ACB Business made displays for any customer other than Displays, it must be inferred that the displays to which Mr Cichonski referred were manufactured for Amcor Displays. Mr Cichonski also gave evidence about the process involved in manufacturing a display for Amcor Displays in about 2001[71]. He said that the components of a display could include shelves, partitions, and dump bins,[72] and that the manufacture sometimes involved die cutting by ACB or another OME supplier.[73]

91 In my view, the summary of Mr Cichonski's evidence and the submission made in the Holihan parties' note falls short of conveying the substance of the evidence he gave about Amcor Displays.

92 In his witness statement, Mr Cichonski presented his evidence under separate event-based headings, dealing first with the ACB Business in the period before the sale, and then during and after the sale, as follows:

ACB - period leading up to sale

[15] After the Restructure and prior to the sale of ACB to Craig Holihan, ACB continued to manufacture jobs for AFP where AFP was unable to do this work in its NSW main plants. Most of the work in the Wetherill Park site by default technically became OME work.

[16] The particular work that ACB did included making boxes and displays and other corrugated products, and included work such as partition assembly, short run flat bed die cutting, volume die cutting and erection of specialised fruit and produce trays, packing, litho laminating, stripping, gluing, stitching, slot work, large format box making, single face roll manufacturing, fanfold manufacture, wrapping and packing along with holding Kanban stocks for certain customers. AFP delivered the cardboard sheets to the ACB Business from its main sites at Revesby and Smithfield, or sometimes from sites in Queensland (in cases where the cardboard needed to be speciality cardboard, for example for fruit and vegetable trays, P84 material).

Events during and after the sale of ACB Wetherill Park

[17] I was not aware of ACB being put up for sale by AFP until it was announced at (as best as I can recall) a regional meeting involving head office executives. At this meeting it was announced that Craig Holihan (at the time ACB business unit manager) had bought the assets contained at Wetherill Park except for the main line corrugator which was still "mothballed" except for fanfold manufacture.

[18] After the sale, AFP's estimating department continued to route work to ACBCo in its systems in the same way it had to the ACB manufacturing facility before the sale.

[19] The ACB company itself was not trading at the time that the ACB business was sold to Craig. The ACB company had ceased trading as a standalone business many years previously, after it was bought (by Amcor) from Dick Clark. At first the business had continued to trade as a subsidiary within AFP, until the sales force and administration team was merged with AFP NSW in the mid 1990's (or thereabouts), after which the ACB business operated as a division within AFP.

[20] As a result of the asset sale, ACB became known as ACBCo and the work that the ACB site previously did (as described in paragraph 16 above) continued to be done by the new ACBCo business. I know this because:

(a) I was involved in decisions regarding where AFP machines would be located and the type of work that was sent to the ACB site before the sale;

(b) I was responsible for those parts of AFP that continued to send work to ACBCo after the sale;

(c) I knew the machinery that was sold to ACBCo because it was my responsibility to know what machines AFP had (or no longer had) and work that needed to be done by way of OME;

(d) ACBCo took over all the assets that were there prior to the sale except for the corrugator and the Spak/Boix tray erectors;

(e) Craig operated the ACBCo business from the old ACB site and did the work that ACB had done before the sale; and

(f) Amcor no longer operated any business by the name of 'ACB' after the sale and there was no Amcor sales force attached to that brand after the sale.

93 Nowhere in his statement did Mr Cichonski mention the business unit or division named 'Amcor Displays'. He mentions the word 'displays' twice, and in each case it is in a context where he is referring generically to making 'corrugated products' - 'making boxes and displays and other corrugated products'[74] and 'assembly, bundling, folding, gluing, stitching, slitting, slotting, strapping, palletising, wrapping, and packing of corrugated boxes and other corrugated products, such as displays'.[75] This was acknowledged by counsel for the Holihan parties at the hearing on 8 February 2019, who noted that when Mr Cichonski says they made displays, '[h]e doesn't say that they made them for [Amcor] Displays'.[76]

94 Under cross-examination, Mr Cichonski was asked specifically about 'Amcor Displays'. His answers revealed that while he was aware of Amcor Displays, in the period before the sale Amcor Displays did not fit in with his responsibilities. The following exchange took place:[77]

[MR TRAN:] If I could ask you, then, are you familiar with something called Amcor Displays?---Yes, I'm aware of Amcor Displays.

Before July 2003, so it was still directed before July 2003, how did that fit in with your responsibilities?---It didn't.

And could you explain that. Where did it fit in relation to Smithfield and Revesby?---Amcor Displays, from what I can remember, was a separate business with its own sales team and estimating department and they had a different product, if you like, to what we would do.

Did you have any interactions with the staff associated with Displays?---Not much.

Not much. So you had some?---Very little to be honest.

Can you just think, and this is still directed to before July 2003, could you give any examples of the sorts of interactions, if any, that you may have had with Displays staff?---The only interaction would have been on a technical nature. Whether or not we could produce certain components through our equipment at Revesby/Smithfield.

And then if I can ask you to think about the time after July 2003. How did Displays fit with Smithfield and Revesby then? Was it the same as before?---Pretty much the same.

95 Mr Cichonski's evidence that Amcor Displays was 'a separate business' with its own estimating department and operated separately from the AFP team, accords with the evidence given by other witnesses such as Mr Adayres Garcia.[78]

96 Under re-examination, counsel for the Holihan parties sought to clarify an answer Mr Cichonski had given earlier about the 'dispatch' or 'shipping' function, and he was then asked whether that 'dispatch' referred to any of the work that was performed on behalf of 'AFP Displays', as follows:[79]

[MR MAIDEN:] . . . Do you remember Mr Tran took you to your witness statement and in particular he took you to paragraph 20(b) . . . Sub-para (b), "I was responsible for those parts of AFP that continued to send work to ACB co after the sale." Do you remember he asked you some questions about that?---Yes.

And Mr Tran then said, "So my first question is" and this is at transcript 2299, line 21, "So my first question is what are those parts of AFP that you're referring to?" Dispatch was your answer. Question, "Could you explain What do you mean by dispatch?" Shipping, you said. Did that involve dispatch of any work that was performed on behalf of AFP Displays?---We would have been supplying a sheet, potentially, and/or part of a component if it was efficient to do it through Revesby or Smithfield.

So does that mean that Displays used the Smithfield and Revesby facilities for production of its work from time to time? ---Components not of the work as such.

Do you remember where the Displays team sat in about 2001?---I think they sat at Marigold Street. If not Marigold Street, Revesby, then - what was the other joint? There was another place. I can't remember the name of the address. But yeah, around Revesby I think it was.

Are you aware of them ever being anywhere other than Marigold Street, Revesby?---Years before that, they were at Smithfield.

They were at Smithfield?---M'mm.

Is that the same Smithfield address as the main plant?---Yes.

That you were responsible for?---Yep.

Why didn't they stay at Smithfield?---Because there was a move by the executive to get rid of anything . . . that was second pass type work out of the business and make those two plants super efficient, focusing on a different market.

I see?---So anything that was considered complex, involving a lot of people, wasn't fitting the model.

So was there a change in the Displays business, or a change in its location or both?---Neither, it was a change in AFP's business.

So can you describe how, to the extent of your involvement, a Displays job began and was dealt with through the production process?---Yep.

Perhaps beginning at the time of the customer placing an order on AFP?---Yep. The customer would first get a design, so they wouldn't actually place an order for a display, they were unique. So you've seen them probably at the end - in supermarkets at the end of aisles, those sorts of things, where you see the chip packets and stuff standing, so they're quite unique and they're different, depending on what those customers are marketing. So it would start off with an actual mock up, a full blown sample that would be done by the Displays team. From there, the customers look at it, sign off, yes it meets the requirements of what they want to display and then they would go to artwork and that artwork may involve silk screening or a laminating process, both processes AFP didn't have. So that would get done outside. There would be a number of components to a display, there can be shelves, partitions, the actual dump bin itself, that holds the product. So it could have anything up to maybe six or more components and it could be made up of corrugated board and/or timber. So it could be a combination of materials, again the reason why it wasn't suiting the um, Smithfield or the AFP model. So that would be done by others. Then it would go to a central place to be packed and distributed to whoever the customer was and where those addresses would be, Woolworths, all around Australia, for example.

So if I can ask you for a moment to focus on the corrugated board component of a display, how is that produced?---On the corrugator, just to a board specification. And what was the process of - where did that fit in that process that you've just described?---Okay, so ah, they won the business - you're talking AFP Displays?

Yes. They won the business, orders would be placed on the system and the system would divvy out what happens. So obviously if it's board manufacture, it's going to be made by either Smithfield or Revesby.

And which system are you talking about then?---Ah, PICK or Kiwi, whatever we were running. I can't remember what we were running, PICK or - - -

And you said that system would direct the work and - just excuse me one moment? So either Smithfield or Revesby would make the board?---Yes.

Once the board itself was made, you've got pieces of cardboard that have been made by Smithfield or Revesby, what happened then?---If there was a reasonable enough volume, we might die cut it, um, if not, it would go elsewhere for die cutting.

Where could it go for die cuttings?---OMEs, it could go to um - could go to Wetherill Park, like to ACB Co, it could go to Le Breton, it could go to any number of people.

97 As the extract above demonstrates, prior to the sale, AFP's Smithfield plant was 'potentially' supplying components for the Amcor Displays jobs, such as the manufacture of board or cardboard sheet, and/or part of a component if it was efficient to do it. In some cases it might also perform die-cutting, if there was a reasonable enough volume, otherwise it would be sent to third parties. But Mr Cichonski's evidence does not convey the impression that the ACB Business was performing a significant amount of the Amcor Displays' work.

98 Next, the Holihan parties referenced the evidence given by Mr Paul Silva, stating:[80]

Mr Silva was the Logistics Manager for the ACB Business until it was sold; at that time he was made redundant and after two or three days he commenced work for Achilla.[81] He said that before the sale, the ACB Business made displays for Amcor Displays.[82] Thereafter, the work that Achilla received from Amcor remained the same, at least for a while. In particular, it continued to do litho lamination work including for Amcor Displays.[83]

99 In his witness statement, Mr Silva presented his evidence under separate event-based headings, dealing first with the ACB Business in the period before the sale, and then during and after the sale, as follows:

Role at ACB - Prior to sale

[2] In my role as Logistics Manager, I was responsible for distribution and planning at ACB's Wetherill Park factory. Organising freight (for both the delivery of raw materials to the ACB Business and the delivery of products to customers) was a large part of my role.

[3] ACB did various types of work for various customers. Much of its work was for AFP. That work was mainly specialist or short run work, and work that I describe as 'odds and ends'. The work was done by machine and by hand. It included laminating, die cutting, gluing, scoring, stripping, slotting, re-palletising, carton assembling and packing.

[4] Part of my job involved using AFP's PICK computer system, which routed AFP jobs through AFP's production system and to and from AFP's outside manufacturing enterprise (OME) suppliers, including ACB. I used PICK frequently, for reasons including raising delivery dockets and examining jobs sent to ACB.

Role at ACB - After sale

[5] I was made redundant when the ACB Business was sold to Craig. I was out of work for two or three days before I was re-employed by Craig's company. My role remained the same. So too did the work that ACB received from AFP, at least for a while. Among other things, ACB continued to do litho lamination work, including for another AFP business, Amcor Displays. Amcor Displays was on the PICK system until early 2005.

. . .

100 Prior to Mr Silva being called, counsel for the Holihan parties informed the Court that if they were permitted to 'ask five questions of Mr Silva orally before [he is] cross examined' - which questions would 'concern relatively minor matters and shouldn't occupy much time' - then they could 'avoid calling Mr Dailey and Mr Daaboul'.[84] Accordingly, Mr Silva gave the following additional evidence in chief:[85]

[MR MAIDEN:] . . . Can I ask you please to turn to paragraph 5 of your witness statement. There you recount how you were made redundant when the ACB business was sold to Craig Holihan. You were out of work for two or three days and you were re-employed by Craig's company. Can you tell the court, please, for how long you worked for Mr Holihan's company, that is when did you cease working for his company, and I'll tell you that company was called Achilla Pty Ltd?---I ceased working, um, for that company approximately 2010.

Are you aware of the business referred to as the ACB business?---Yes, I am.

And you're aware that that business was owned by Amcor until Mr Holihan bought it and then run by Achilla after that? ---That's I correct.

Can you tell us did the ACB business make displays for Amcor Displays before Mr Holihan bought it?---Yes, I did.

And did it make those displays after Mr Holihan bought it?---For a short period of time.

Did the ACB business after Mr Holihan bought have machines that did creasing?---Yes.

Did the business after Mr Holihan bought it have die cutters? ---Yes.

Did those die cutters have pre-feeders?---No, I don't recall.

101 Having been permitted to ask those questions, counsel for the Holihan parties confirmed that neither Mr Dailey nor Mr Daaboul would be called,[86] and Mr Silva was then cross-examined. In response to questions from counsel for the Amcor parties, Mr Silva explained his role as 'Logistics manager' and what it involved, as follows:[87]

[DR McNICOL:] When did you become a logistics manager?---Probably somewhere around about 2001 maybe.

Thank you. So could you please tell the court what a logistics manager does?

---Well, basically um, the role involved um, organising distribution for - for the facility um, overseeing like the day to day, you know, scheduling of machinery, that sort of stuff.

Right so is that to do with freight and movement of jobs? ---Correct.

Thank you. And did you actually operate machines?---Ah, at that present time, no.

No. So when you were a logistics manager, you don't - you're not a machinist as well or you don't operate the machines?---No.

102 Mr Silva also confirmed that prior to the sale all of the work done in house by the ACB Business was for AFP:[88]

[DR McNICOL:] So in paragraph 3 of your witness statement, you say that ACB prior to the sale, did various work for various customers. That's correct, in the first sentence?---That is correct.

Yes. Now you say much of its work, ACB's work, was for AFP. Now could you say how much? This is prior to the sale. How much of ACB's work was for AFP?---Prior to the sale, um, the business was owned by AFP. So all the work that we done in house at the time, was for AFP.

Right, okay?---Yeah.

So much really means all, does it?---(Witness nods.)

103 Mr Silva also was unaware of how many OME suppliers there were to the ACB Business (under AFP's operation) prior to the sale:[89]

[DR McNICOL:] So you say in paragraph 4 that part of your job involved using AFP's PICK computer system. This is still prior to the sale, before the sale. Now your description in paragraph 4 is that you say it routed AFP jobs through AFP's production system and using the words in paragraph 4 of your witness statement, it routed those jobs to and from AFP's OME suppliers, including ACB, is that correct?---That is correct.

That's your evidence. So do you know how many OME suppliers there were?---No, I don't.

Even roughly? Would it have been - - -?---I'd be - I'd be speculating.

Would it be more than ten?---I can't really say, to be honest with you.

Would it be more than 100?---No, probably not.

Right. Would it be more than 50, do you think?---I don't think so.

More than 20?---I don't know.

104 Mr Silva was asked whether, prior to the sale, in his 'Logistics manager' role he had any contact with the estimators:[90]

[DR McNICOL:] Did you deal at that point, prior to the sale, with any estimators? ---I don't remember.

Do you know what an estimator is?---Yes, I do.

Were there any estimators working at the ACB business prior to the sale?---I don't remember.

. . .

So were there any estimators, to your knowledge, that were at Wetherill Park?---Ah, prior or after the sale?

Prior to the sale?---Ah, don't recall.

After the sale?---Ah, yes, there was.

And where were they situated?---At Wetherill Park.

Right. And do you know who they were?---Don't recall.

So were there any estimators to your knowledge prior to the sale at Smithfield?---Yes, there was.

Right, and do you know who they were?---Um, I know of them, yes.

Did you have any dealings with them?---Not particularly, no.

So did you have any contact at all with an estimator at Smithfield prior to the sale?---No, I didn't.

Were there any estimators at Revesby?---Don't know.

105 Under cross-examination, Mr Silva also gave evidence to the effect that following the sale, having noticed a decrease in Achilla's work over a period of time from '[m]aybe somewhere about 2005', he spent time checking jobs on the PICK and the PCS systems to ascertain to which of the alternative suppliers OME jobs had been routed to, and he sent several emails to Mr Holihan reporting the results of his searches.[91] Mr Silva clarified that he was not able to see all of the OME jobs that were going to the other suppliers:[92]

[DR McNICOL:] . . . Now Mr Silva, through your access to the PICK system, is it correct you could see all the OME jobs going to other suppliers?---No, it's not. I probably wouldn't be able to see all the jobs.

Could you see some of them?---Some of them, that's correct.

What about if you had access to the PICK system and its companion system, the PCS, could you see all the jobs going to the other suppliers?---Ah probably only just some of them.

Well, why would - well, which ones are the ones that you could see?---I don't remember.

But only some of them. So did you try and access it for others?---I don't recall.

Right, so how many - when you say just some of the OME suppliers, some of the external alternate suppliers, how many?---Probably about four or five of them.

106 During the course of the cross-examination about OME jobs which were sent to alternative suppliers after the sale, Mr Silva said he reported to Mr Holihan about some of them, in particular the OME jobs sent to 'Le Bretons' and including jobs such as the 'RTS Imaging' job. In the course of that exchange, however, Mr Silva effectively acknowledged that there were a lot of other OME jobs that went elsewhere that he did not report on that Achilla may have lacked the capability to do:[93]

[DR McNICOL:] . . . Now, so is it correct that you continued to review PICK and advise Mr Holihan of every OME job?---Not every OME job, no.

No. Right. So did you only advise him of the jobs that he told he was interested in?---Well at no point, um, did he say to me that he was interested in a specific type of job.

Right. But you just said you didn't advise him of every OME job going?---No, because a lot of OME jobs that did go elsewhere maybe we didn't have the capability of, ah, converting the jobs.

107 In my view, when the entirety of the evidence given by Mr Silva is reviewed, it is clear that his role was in logistics, and not in estimating or production. The impression he conveyed to the Court was that he had little real knowledge of what Amcor Displays jobs, or types of OME work, were performed by the ACB Business for Amcor Displays prior to the sale.

108 In their note, the Holihan parties also refer to the evidence given by Mr Holihan about work performed by Amcor Displays, and in particular lamination work. His evidence has already been discussed in some detail above. The additional evidence referred to in the note, including about litho lamination work performed by the ACB Business prior to the sale on the 'Grassi No. 1' machine, is summarised by the Holihan parties as follows:[94]

Mr Holihan gave evidence that Amcor Displays obtained OME work from the ACB Business prior to the sale.[95] He also gave evidence that the ACB business did litho lamination work prior to the sale, from around June 2001. He said this was done on the "Grassi No. 1" machine.[96] The expenditure requisition dated 19 June 2001 for the purchase of that machine[97] stated that the justification for moving the machine from City Pack in Melbourne to the ACB Business in Wetherill Park was:

to enable us to litho laminate and remove the need for outside suppliers ... There is also no justification or analysis on the increase in sales as a result of being able to produce a value added product such as displays and litho laminated cartons, although this could be significant.

109 The Holihan parties cited two transcript references for Mr Holihan's evidence about Amcor Displays, referring to evidence that Mr Holihan gave in examination in chief.[98] The first refers to evidence given by Mr Holihan in the context of his discussions with Mr John MacPhail (a solicitor from Baker & McKenzie) in relation to the drafting of the Second Sale Agreement, and the annotations made by Mr MacPhail on the diagram Mr Holihan had produced. It will be recalled that the diagram is referred to in the Reasons, as follows:[99]

At one stage during the meeting, Mr Holihan assisted Mr MacPhail by making a note on MacPhail's note pad to explain the operation of the manufacturing and selling arms of the Amcor business and the relative numbers of customers involved in each activity, as follows:

110 In the course of giving his evidence, Mr Holihan was asked about the reference to the 'Amcor customers' on the diagram, as follows:[100]

[MR MAIDEN:] Did he [Mr MacPhail] make that note as you said anything in particular, do you recall?---I was describing to him the manufacturing process within the ACB business, and that 80 per cent of the volume the business was making - producing was for Amcor customers. Again when I refer to Amcor I'm referring to Amcor Figure [sic.] Packaging, and the 20 per cent was the balance that we were taking for our own customers.

I understand. The work that you were making for Amcor, let's call it AFP, is that a fair use of the acronym?---Yes, that's - - -

The work that you were making for AFP at that time, did that include work that was made for Amcor - the Amcor Displays business?---Yes, it did.

111 In that exchange, however, Mr Holihan did not describe any particular OME work or mention any particular OME jobs that the ACB Business performed for Amcor Displays prior to the sale. This was confirmed by counsel for the Holihan parties at the recent hearing, who expressly acknowledged that 'Mr Holihan doesn't give direct evidence of . . . the business doing litho laminating work for Displays' in the period prior to the sale.[101]

112 The second transcript reference cited by the Holihan parties in their note refers to evidence given by Mr Holihan, again in examination in chief, about the D & D pricing mechanism and Annexure 5 to the Second Sale Agreement. The relevant exchange is as follows:[102]

MR MAIDEN: . . . Two questions arising out of that Mr Holihan. You described to Her Honour how the volumes that are set out in this spreadsheet were reached by reference to the volumes in the previous financial year. Did those previous financial year's volumes include work that had been done for Amcor Displays?---Yes.

And can you explain, before you gave us that very useful explanation of this spreadsheet, you said that this spreadsheet and the annexure 5 descriptions related to one another?---Yes.

Can you explain precisely how they relate please?---Okay. It might best to start with the simpler ones rather than starting at the top. . . .

113 Mr Holihan then continued on to explain the spreadsheet and the manner in which Annexure 5 was developed, including by Mr Papadimatos in consultation with Ms Niklas. Here again, however, the evidence given by Mr Holihan does not inform the Court about any particular OME jobs that the ACB Business performed for Amcor Displays prior to the sale.

114 In their note, the Holihan parties also make reference to evidence given by Mr David Manser, but in doing so they acknowledge that his evidence 'says nothing about the pre-sale period'. They say as follows:[103]

Mr Manser gave evidence that as at July 2005 the ACB Business[104] did "a lot of the laminating work, or subcontracting the work out to third parties, on behalf of Amcor Displays."[105] While this evidence says nothing about the pre-sale period, when taken with the other evidence, particularly that given by Mr Holihan and Mr Silva, the Court can rely on it to infer that pre-sale work for Displays involved lamination.

115 As noted in the Reasons, Mr Manser worked for AFP between about 1999 through to 2006 in various roles as the Commercial Manager Speciality Group from about 2002 to October 2004, and then as Acting General Manager of the Speciality Group from October 2004 to February 2006. Mr Manser did not prepare a witness statement but an outline of the substance of his evidence was provided in advance. He gave evidence about the Amcor Displays' work, principally in the post-sale period and in particular about the re-structuring of Displays NSW and Displays Victoria and the movement of Displays NSW work to Displays Victoria where they were setting up a specialised footprint for bringing the Displays' work under the one roof. He also gave evidence about the formal arrangements made between Displays NSW and the ACB Business (post-sale) for Mr George Daaboul, an employee of the ACB Business, to manage Displays NSW following the death of Mr Hottes.[106]

116 In examination in chief, Mr Manser said that in his role as Commercial Manager, he was responsible for financial results for the 'speciality group', and from his base in Melbourne, he looked after Western Australia, Queensland, New South Wales, New Zealand and Victoria.[107] He confirmed that his responsibilities included responsibilities for the Amcor Displays business in New South Wales.[108] When Mr Manser made the statement relied on by the Holihan parties concerning the laminating and subcontracting work being undertaken by the ACB Business for Amcor Displays in or about July 2005, he explained that 'the aim was for Displays New South Wales work to be transferred to Displays in Melbourne' where they were 'setting up a specialised footprint to go to bringing the Display work under the one roof for a cleanness of scale and for profitability'.[109]

117 Counsel for the Holihan parties also asked Mr Manser about Mr Roddy and Mr Dailey, as follows:[110]

Were Bret Roddy and Walter Dailey employees of Displays?---Yes, they were.

Are you aware whether they left Displays employment?---Yes, they did.

Can you remember what circumstances they left Displays employment?---I made them redundant.

118 Under cross-examination, counsel for the Amcor parties sought to clarify the transfer arrangements that Mr Manser had mentioned in the context of Amcor Displays. Mr Manser said that the manufacturing footprint in Melbourne was being built in Mulgrave,[111] as part of the Service Containers business, and it was Displays Victoria, and that they were going to bring Displays New South Wales manufacturing down to Victoria.[112] The questioning continued:[113]

[MR TRAN:] So to understand that, does that mean the plan was to have the manufacturing work for New South Wales Displays done from a site in Melbourne?---Yes, it was.

Okay?---You've got to remember a lot of the clients within Displays are national, so the deliveries aren't necessarily New South Wales. They might be delivered to Melbourne, could be delivered to Western Australia. So the work is portable.

And was that site in Melbourne going to be an Amcor owned site?---No, it was a Service Containers site which was owned by Amcor, so it was an Amcor site - - -

I understand, I understand?--- - - - but Service Containers were the tenant, and the equipment was being brought in from different Amcor plants to set up the display facility.

And so that was the plan, did that actually happen?---We got to the situation where the work was transferred, I can't remember exactly the date, but I think it's in one of these emails here and we did mention that the transition of the work was going to take place - - -

Okay?--- - - - and only the work that was still in the system in New South Wales would be completed in New South Wales. You can't stop a job half way through, so all new orders were being placed in Melbourne.

Okay. To be done at the Amcor owned site that was being run by Service Containers?---Mulgrave, yes.

119 As will be apparent from the excerpts above, Mr Manser's evidence about laminating and subcontracting work undertaken by the ACB Business relates to the period after the sale when the ACE Print contract had been terminated and at or after the period in time when Mr Daaboul had been installed to manage Amcor Displays. His evidence does not enable the Court to draw any inference about any particular OME jobs or type of OME work that the ACB Business performed for Amcor Displays prior to the sale.

120 Next, the Holihan parties referenced the evidence given by Mr Tony Joyce, stating:[114]

Mr Joyce gave evidence that Amcor Displays was a small sales organisation without any manufacturing capability itself, which produced cardboard- based point of sale shelving, which was for in-store advertising.[115] Mr Joyce said that the ACB Business serviced Amcor Displays.[116] On cross-examination, he explained that it was possible that Displays work was sent to ACB before the sale because the work required some of the corrugated machinery that resided within the ACB Business.[117] He said that is was "absolutely" Amcor's policy to get whatever work it could get done in-house, to keep profits in-house.[118] Mr Joyce gave evidence that, pre-sale, the decision about where to send the Amcor Displays work depended on "the many permutations and combinations what were possible for the end product it really was dependent upon what the - the product specification was."[119]

121 Mr Joyce was AFP's Commercial Manager Operations in 2003. He later became General Commercial Manager, AFP, a position he held until he left Amcor in May 2005. In his role as Commercial Manager Operations, Mr Joyce's responsibilities 'were to support all of the Amcor Fibre Packaging Australasia operations', including those conducted by Amcor Displays and the ACB Business (prior to the sale), 'for all their financial reporting and governance and control requirements'.[120] Mr Joyce said that in that role, he had no direct involvement in the negotiations for the Second Sale Agreement but he was indirectly involved in reviewing drafts and providing comments to Mr Ken Parker (General Manager Commercial), in the formulation of the D & D pricing mechanism,[121] and in producing the formula for determining or calculating the charge rates between the two companies.[122]

122 Mr Joyce said that prior to the sale in 2003, 'ACB[123] was a small specialist unit'.[124] It had 'a single face corrugator and a range of small specialist secondary converting equipment' that operated from the Wetherill Park site in Sydney, and it 'would provide specialist conversion of material on behalf of itself and the broader business'.[125] He said that ACB 'had its own customer portfolio that it serviced', but it 'also serviced the other operations for the fibre packaging business in and around Sydney', including Amcor Displays.[126] When asked about whether any of those fibre packaging business companies had anything to do with the Amcor Displays business, Mr Joyce responded:[127]

---Amcor Displays, as I said, was a small sales organisation so it was not uncommon for Amcor Displays to source material from the other Amcor Packaging sites at Smithfield and Revesby.

123 A little later, the topic of Amcor Displays was re-visited by counsel for the Holihan parties, as follows:[128]

[MR MAIDEN:] You said earlier, I think, that Amcor Displays got work done by ACB before the sale, is that right?---I thought - I don't think that's correct.

Perhaps my recollection is incorrect. Well, let me just ask you the question one way or the other. Do you remember whether or not Amcor Displays got work done by ACB before the sale?---It was possible that work could go through um, the Wetherill Park site of Australian Corrugated Box, in order to produce product for Displays New South Wales.

Did you anticipate that that might continue after the sale?---I do not recall.

124 Under cross-examination, counsel for the Amcor parties returned to the topic of Amcor Displays' work and asked Mr Joyce to explain what he meant by 'it's possible'. The following exchange took place:[129]

[MR TRAN:] . . . Can I perhaps ask you about the work that the ACB business did prior to the sales. So these questions are still directed to the time prior to the sale. Now, you said earlier that it was possible that the ACB business did work for Amcor Displays. Why did you say that it's possible?---Ah, because depending on the nature of the product as it was specified, um, it could have required some of the converting machinery that resided within the Australian Corrugated Box plant at Wetherill Park.

And at the time - this is again presale - ACB business was an internal company - isn't it?---That is correct.

So Amcor's policy at the time would be to do whatever work could be done internally, is that right?---Absolutely.

That way the profits would be kept in-house?---It would retain the margin internally.

So it's for that reason it may well be possible that ACB business did work for Amcor Displays where they had the machines?---Correct. That is correct.

125 Mr Joyce also said that, as the Wetherill Park site contained certain specialist corrugating conversion machinery, the guiding principle he operated by at the time of the sale was that the work that was, and 'had historically been routed through Australian Corrugated Box, would continue to be routed through that operation' under the new ownership.[130] Therefore, he said, work involving the specialist corrugating conversion machinery 'logically had to continue to be routed through that facility'.[131]

126 Later in the cross-examination, Mr Joyce was asked about the work performed for Amcor Displays and the management of that process, as follows:[132]

[MR TRAN:] Now, you said before to Mr Maiden that Amcor Displays was a sales unit. Is that right?---Correct.

And they had no manufacturing capacity at all sitting behind them. That's what you said?---That's correct.

So in a sense all of Amcor Displays' manufacturing needs were met not necessarily by a company outside of Amcor but certainly an entity outside of Amcor Displays. Is that right?---That's correct.

And to your knowledge who met those needs for Amcor Displays?

---The base material will have come from one of the two large manufacturing plants at Smithfield and Revesby. Thereafter given the many permutations and combinations that were possible for the end product it really was dependent upon what the - the product specification was.

And who would manage that process? Would it be the Displays staff who are sales people or Smithfield and Revesby who are the manufacturers?---I believe it was the sales staff for the Displays business.

And why do you believe that to be the case?---Um, because they had the intimate and unique understanding as to what the customer requirements were and, therefore - and also, um, needed to manage the commercial relationship with the customer and, therefore, could not afford to be disappointed if that manufacturing step, or one or many of the manufacturing steps, did not take place in the appropriate timeline.

127 Although, in the context of explaining 'business as usual', Mr Joyce had referenced the role of the Amcor Displays sales staff as managers of the manufacturing process, the position is that the Holihan parties did not call any of them to give evidence, and they instead relied upon the evidence given by Mr Silva, Mr Manser and Mr Holihan.

128 Lastly, the Holihan parties referenced the evidence given by Mr Mark Whitechurch, stating:[133]

Mr Whitechurch gave evidence that he saw the Grassi No. 1 being used to produce point of sale displays on a number of occasions that he visited the ACB factory.[134]

129 In its Reasons, the Court noted that Mr Whitechurch was the owner and managing director of Converta Machinery Pty Ltd ('Converta') between June 1994 and August 2012, when the business closed. Converta imported machines into Australia and provided after sales support to customers, but its core business was the supply of machinery to the corrugated box segment of the market. It was one of the main suppliers of imported machinery, such as laminators, die-cutters, box making machines and other related cardboard manufacturing equipment, to the corrugated box segment. The ACB Business was one of Converta's customers both before the sale to the Holihan parties and afterwards.[135]

130 In his witness statement,[136] under the heading 'The ACB Business', Mr Whitechurch said that because he had 'visited the ACB factories located at Wetherill Park and Smithfield (in New South Wales) on several occasions and saw the work that was being done at those factories' he 'knew that ACB manufactured and designed corrugated cardboard packaging' and '[a]mong other things, it laminated and die cut corrugated cardboard to produce cardboard products for its customers'.[137] As no explicit time frame is mentioned by Mr Whitechurch, when read in context, this statement appears to relate to both the period before the sale up until the middle of 2003 (when ACB 'was headed up by Craig [Holihan]') and the period thereafter when Mr Whitechurch 'learned that Craig had purchased the business from Amcor'.[138]

131 Under the heading 'Machines that the ACB Business had', Mr Whitechurch discusses the 'Grassi No 1 laminating machine' and the 'litho laminating' process as follows:[139]

Grassi No 1 laminating machine

[12] The ACB business had a Grassi Sheet Laminating Machine - Compact Semi-Automatic No 1 model (Grassi No 1). I cannot remember if I sold that machine to the ACB business, or if I sold it to AFP. However, I did see it operating at the ACB factory at Tarlington Place in Smithfield at some point. Converta staff also provided training to ACB staff in relation to the operation of the Grassi No 1 (at Tarlington Place) but I cannot remember when that was. I saw that the machine was being used to litho laminate point of sale displays on a number of the occasions that I visited.

132 While Mr Whitechurch was unable to place a timeframe on the sale of the Grassi No 1 machine, or recall to whom it was sold, nevertheless his recollection that he saw 'it operating at the ACB factory at Tarlington Place in Smithfield at some point' and that 'Converta staff also provided training to ACB staff in relation to the operation of the Grassi No 1 (at Tarlington Place)' suggests that the relevant timeframe for him observing ACB operating the Grassi No 1 machine is likely to have been in early 2004. That is because the lease for the 'Tarlington Place' site was not entered into until December 2003 and Mr Holihan's evidence was that '[s]hortly afterwards, Achilla moved machinery from the factory at Wetherill Park to Tarlington Place'.[140]

133 In circumstances where it is unclear which entity purchased the Grassi No 1 machine, and whether it was before or after the sale of the ACB Business, the Holihan parties submit that the June 2001 expenditure requisition and Mr Holihan's evidence about the use of the Grassi No 1 machine support a finding that the machine was sold to AFP and that the ACB Business used it for litho lamination prior to the sale.

134 Even if that was correct, it does not entail the consequence that there is evidence before the Court that, prior to the sale, the ACB Business was performing OME work, and in particular litho lamination work, for Amcor Displays on a 'business as usual' basis. In that regard, it will be recalled that, in his witness statement, Mr Holihan said that prior to the sale 'the ACB Business did not do very much work for Amcor Displays because shortly after the ACB Business obtained a litho laminating machine in June 2001 . . . , AFP entered into a supply agreement with ACE Print & Display Pty Ltd (ACE Print) in relation to Displays' work'. Mr Holihan also stated, in the context of his establishment of the Tarlington Place site, that at that point (December 2003) he 'understood that most of the Amcor Displays OME work was done by ACE Print'.[141] According, it seems clear that notwithstanding that the ACB Business may have purchased a litho laminating machine prior to the sale, the Amcor Displays' litho laminating work was being performed for the most part by ACE Print.

135 In my view, save for the Amcor Displays' work to the value of $172,097.83 that was recorded as having been performed by the ACB Business in the 2002/03 financial year, the evidence falls short of providing any real insight into the particular OME jobs or kind of OME work that the ACB Business had performed historically for Amcor Displays.

Was there any evidence about how long Le Breton had been doing work for Amcor and/or Amcor Displays, and was there any evidence as to the quantum done for Amcor Displays pre-sale?

136 Much of the Amcor Displays' work that comprises the 'Amcor Displays Jobs' that are contested by the Holihan parties is OME work that was performed during the Claim Period by Le Bretons.

137 In their note, the Holihan parties refer to evidence given by Mrs Kaye Le Breton, whom the Holihan parties had subpoenaed to give evidence at the trial about the OME work performed by the Le Breton companies. They say as follows:[142]

[10] Mrs Le Breton gave evidence that "Amcor" had been a customer of Le Breton for quite a number of years. She gave evidence that Le Breton would have been doing work for "Amcor" since the 1990s but was not absolutely sure. All she could say was that Le Breton had dealt with "Amcor" for a number of years.[143]

[11] Mrs Le Breton did not give any evidence about the time period over which Le Breton had done work for Amcor Displays. She was not asked about that. The evidence is that, in the year prior to the Second Sale Agreement, Le Breton did no work for Displays.[144]

138 The substance of the evidence given at trial by Mrs Le Breton is summarised in the Reasons, as follows:[145]

Le Breton

[566] Mrs Kaye Frances Le Breton gave evidence concerning the OME work performed for Amcor by the two Le Breton entities, namely M Le Breton Graphics (Aust) Pty Ltd and M Le Breton Graphics Pty Ltd (together called 'Le Breton'). Mrs Le Breton's husband, Max Le Breton, operated the business but he was in hospital at the time of the trial and unable to give evidence, so the Holihan parties subpoenaed Mrs Le Breton to give evidence in his place. Mrs Le Breton has been a director and secretary of both companies for many years and also works in the business in an office role.

[567] Amcor was a large customer of Le Breton in the relevant period, and beforehand from about the 1990s. Mrs Le Breton verified invoices and purchase orders relating to work done by Le Breton for Amcor in the relevant period for customers such as RTS Imaging.

[568] Le Breton mainly did laminating (that is 'mounting' prints to cardboard') and die-cutting on corrugated cardboard for Amcor. Le Breton owned a mounting (laminating) machine and a die-cutter. Some of the work performed involved manual labour, such as the stripping of cardboard waste after die-cutting, gluing by hand and packing. Le Breton did not do any printing itself, but where printing was a component of the work required, Le Breton would organise for the printing to be done by a third party printer such as New Milligans. Sometimes, the litho printed sheets were supplied to Le Breton for incorporation into the work to be performed.

[569] Much of the work done by Le Breton for Amcor was repeat order work that involved the use of standing knives. Le Breton would quote a price for the job when first activated and the job would remain at that standing price unless there was an increase in the paper. Le Breton itself also had standing arrangements with printers such as New Milligans for the price of the third party work to be performed. In the case of new work, if a knife was required, Le Breton would charge Amcor for the knife.

[570] Mrs Le Breton said that once Le Breton had completed the work, Amcor would pick up the goods and deliver them to their customer. On occasions, however, Le Breton would be requested to deliver the goods, and where it did so, it would charge Amcor for the freight.

139 The reference to Le Breton having done work for Amcor 'from about the 1990s' is substantiated by the evidence Mrs Le Breton gave under cross-examination. The following exchange occurred:[146]

[MR TRAN:] Could I ask you this question? How long has Amcor been a customer of Le Bretons?---Quite a number of years.

Do you remember if Le Breton was doing work for Amcor before July 2003?---Yes, we were.

Would it be before the year 2000?---I - I - yes, I'd say so.

. . .

So I'm just trying to understand how long Le Breton has been doing work for Amcor. So would you say in the 1990s Le Breton was doing work - - -?---I think it was - I think - I would say it would have been in the 1990s as well.

Okay?---I'm not - I'm not absolutely sure, but I know we dealt with Amcor for a number of years.

Okay and so before July 2003, what sorts of work was your company doing for Amcor?---The same sort of work.

So it was doing some laminating, it was doing some mounting, is that right?

---That's right.

And it was doing some die cutting?---That's right.

140 The Holihan parties now take issue with Mrs Le Breton having used the generic description 'Amcor' rather than Amcor Displays, noting that '[s]he was not asked about that'.[147] Nevertheless, the evidence she gave about the laminating process and 'mounting' prints to cardboard and die-cutting performed in the context of 'Amcor' work is reflective of the sort of OME work that was involved in many of the Amcor Displays jobs which the Holihan parties contend Achilla was capable of performing for Amcor Displays, but was denied the opportunity to do so.

Evidence that Le Breton did work for Amcor Displays prior to the sale: exhibit H72.1

141 Further, the Holihan parties contend, by reference to exhibit H72.1, that in the year prior to the Second Sale Agreement, Le Breton did no work for Amcor Displays. Exhibit H72.1 comprises a suite of 'Summary Spreadsheets' located in exhibit RCS-1 to the affidavit of Ms Rebecca Claire Smithwick sworn on 5 May 2011.[148] At the time of swearing her affidavit, Ms Smithwick was a solicitor employed by Corrs Chambers Westgarth, the (then) solicitors for the Amcor parties. According to her affidavit, the summary spreadsheets 'contain copies of all invoices issued to all divisions of AFP from the year 2000 onwards'[149] that were extracted by Mr Laurence Phillips[150] from Amcor's Business Services system in response to a discovery request. Ms Smithwick notes that Mr Phillips informed her that he was 'unable to eliminate from the spreadsheets entries that are outside the timeframe request by ACB in the draft orders', being the periods from 31 July 2003 to 20 March 2005 and from 21 March 2005 to 31 July 2008 for the first and second defendants to counterclaim respectively, and therefore 'not all entries in the spreadsheets are relevant to the present enquiry'.[151]

142 The summary spreadsheets for the two Le Breton entities, namely M Le Breton Graphics (Aust) Pty Ltd and M Le Breton Graphics Pty Ltd, each of which is denoted by the Supplier Code '017635', occupy ten sheets. Relevantly, sheets 3, 4 and 5 include several entries for jobs performed by M Le Breton Graphics Pty Ltd for dates prior to 31 July 2003 which bear the notation 'SX', which depicts Amcor Displays.[152] By way of example, an extract of the relevant information displayed on sheet 3 is set out below:

143 It will be noted that, in each case, the invoice amount for each Amcor Displays job is substantial. There are further 'SX' entries shown on sheet 4 for jobs in 2000 and on sheet 5 for jobs in 2000 and 2001.

144 At the trial of the counterclaim and cross-claim, Mr Phillips was called by the Amcor parties. In the Reasons, the Court introduced the evidence given by Mr Phillips, stating as follows:[153]

Mr Laurence Bruce Phillips, a retired accountant, formerly an Accounting Manager at the Amcor sites at Clayton and Box Hill in Victoria, and General Manager of Amcor's Indonesian operations. In 2005, he acted as a consultant to APA on the review of the costing and operations systems that Amcor utilised for its corrugated fibreboard packaging business, as part of APA's transition from the PICK system to SAP. Mr Phillips gave evidence about the demands, costs, timing and labour needs required to fulfil 'specialty work' jobs, 'repeat jobs', OME work performed by the alternative suppliers, OME work performed for Amcor Displays, and the identifying business code 'SX' used for Amcor Displays in the SAP system. The Amcor parties tendered a witness statement prepared for Mr Phillips.

145 Under cross-examination, Mr Phillips was asked about the operation of a tool called 'Panorama', used for accessing data in Amcor's data warehouse, and the request Ms Smithwick made of him to prepare the summary sheets. The following exchange took place:[154]

[MS MURPHY:] Now you're aware this proceeding concerns OME work - - -?

---Yes.

- - - and OME that Mr Holihan says that his company could do and was entitled to do - - -?---Yes.

- - - in preference to other suppliers. Now had somebody come to you in say 2008 and asked you to produce a list of all of AFP's OME work in the period 2003 to 2008, could you have done that task?---Ah, yes, that would have been possible.

How would you have done it? So if you could explain to me what systems you would have accessed?---Well, um, the only way you could have done it at that time would be to access the data warehouse through a tool called Panorama. Um, the data warehouse housed all information regarding production, um, invoicing, sales and, ah, it would have been possible to interrogate that to determine, you could ask specifically to show me only those orders that had OME attached to them.

Okay. And that's Australia wide?---That's Australia wide, yes.

And I think you gave evidence for Amcor at the first trial before Justice Vickery, I think in your statement you said at least as at February 2011 when you made that statement Panorama was still functional?---It was then, yes.

And I think you also assisted a Ms Smithwick, solicitor, in relation to some enquiries that she had in 2011 about access to, you know, information for the litigation in that phase?---Yes.

And correct me if I'm wrong, but I think that you told Ms Smithwick at that point in time that you could have interrogated Panorama to work out where particular OME work had gone and what was involved in OME work?---You couldn't use Panorama to determine where the OME work had gone.

Okay. So you could use it determine?---You could use it to determine that OME work had in fact taken place.

Okay?---But to go any further than that you would have to be able have reference to the production order.

146 In response to a question from the Court, Mr Phillips confirmed that following the transition from the 'PICK' system to the 'SAP' system, which commenced in 2005,[155] where an order had been placed on PICK prior to the introduction of SAP, it would have been transferred across to SAP as an historic document.[156] Accordingly, I am satisfied that the information recorded on the summary sheet for jobs performed by Le Breton in the years prior to the Second Sale Agreement (and contained in exhibit H72.1) reflect 'historic' orders being orders that were placed on the PICK system at the relevant time.

147 When Mr Phillips was cross-examined, he was asked about the request from Ms Smithwick that he provide the information sought by the Holihan parties, but he was not taken to the summary sheets nor was he asked about the information recorded in them. In those circumstances, the Court is effectively left to review the contents of the summary sheets unaided, without any real assistance from the witness who prepared them, or by way of submissions from the parties.

The summary sheets contained in exhibit H72.1 indicate that Le Breton performed a number of jobs for Amcor Displays in 2000 and 2001

148 Having now examined the summary sheets for Le Breton, and the 'SX' entries in particular, it is clear that they do record a substantial number of jobs as having been performed by Le Breton for Amcor Displays in 2000 and 2001, albeit not in the 12 months preceding the entry into the Second Sale Agreement.

149 In those circumstances, the statement made by the Holihan parties in their note, citing exhibit H72.1, that 'in the year prior to the Second Sale Agreement, Le Breton did no work for Displays' appears correct on a 'strict reading', in the sense that there are no Amcor Displays jobs recorded in the Le Breton summary sheets for the 12 month period preceding the entry into the Second Sale Agreement. But that strict position should not be construed as determinative of what took place on a 'business as usual' basis in the preceding years, because when regard is had to the totality of the evidence recorded in the Le Breton summary sheets, it is clear that sheets 3, 4 and 5 do record that a significant body of OME jobs were performed by Le Breton for Amcor Displays in 2000 and 2001.

150 The documentary evidence recorded in the Le Breton summary sheets also bears out the substance of the evidence given orally by Mrs Le Breton about Le Breton doing work over many years for the generic entity 'Amcor'. In circumstances where no clarification was sought as to what was meant by the generic entity 'Amcor', the evidence adduced from Mrs Le Breton about the laminating/mounting and die-cutting processes undertaken by Le Breton leaves open that the business conducted by Amcor Displays is encompassed within that generic 'Amcor' description.

151 Against that background, I am satisfied that the evidence before the Court demonstrates that Le Breton did perform a significant number of jobs for Amcor Displays from at least July 2000, albeit seemingly not in the 12 month period prior to entry into the Second Sale Agreement.

The Holihan parties' principal submission is rejected

152 As part of their principal submission, the Holihan parties assert that '[o]n a business as usual basis, one would expect to have seen organic growth in the Displays work taken up by Achilla',[157] yet despite the ACE Print contract being terminated upon Visy's acquisition of the business, during 'the 33 months' comprising the Claim Period 'Achilla only received a total of $49,423.04 of such work[158] - less than one third of the value of the work that it received in the single financial year before the Second Sale Agreement'.[159]

153 Leaving to one side the asserted notion of expected organic growth, it will be recalled that under the Second Sale Agreement there was no guarantee that any minimum quantities of work would be made available to Achilla following the sale,[160] a matter which both parties acknowledge in their written submissions.

154 While the evidence before the Court confirms that, in the Claim Period, Achilla did not receive the same (or a greater) volume of Amcor Displays' work that was commensurate with the value of the Amcor Displays' work it had performed in the financial year prior to entering into the Second Sale Agreement, it remains unclear why that was so. The Holihan parties contend that Achilla was entitled to all of the Amcor Displays' work that the special referee has identified as satisfying the 'business as usual' test (on the basis of capability).

155 Under the 'business as usual' approach, compensation may only be claimed by Achilla for Amcor Displays jobs that were routed to alternative suppliers in cases where Achilla has demonstrated that those Amcor Displays jobs involved OME work of the kind that the ACB Business (under Amcor's ownership) had performed historically for Amcor Displays prior to the sale. As I have noted earlier, save for the Amcor Displays' work to the value of $172,097.83 that was recorded as having been performed by the ACB Business in the 2002/03 financial year, the evidence falls short of providing any real insight into the particular OME jobs or kind of OME work that the ACB Business had performed historically for Amcor Displays. Moreover, the evidence shows that it was not 'business as usual' for Achilla to undertake the Amcor Displays' work that ACE Print was performing when the Second Sale Agreement was entered into. Indeed, when the evidence given by Mrs Le Breton is viewed in the context of that recorded in the summary sheets for Le Breton, it appears that Le Breton was performing a substantial amount of OME work for Amcor Displays in the period prior to the ACE Print contract being entered into. Thus, once the ACE Print contract was terminated, it did not follow that Achilla was entitled to perform that work.

156 For the foregoing reasons, I do not accept the Holihan parties' principal submission.

157 Turning to the Holihan parties' fallback submissions, as noted above, they submit that compensation in relation to the Amcor Displays jobs should be calculated in one of two ways. The first, is by determining the proportion of available Amcor Displays' OME work that the ACB Business received prior to the sale and then awarding Achilla that proportion of the total value of the Amcor Displays Jobs that fell within the Claim Period ('Fallback method 1'). The second, is to adopt a method that would place Achilla in the same position that it would have been in if it had received in each year of the Claim Period Amcor Displays' OME work of the same value as that which the ACB Business received in the financial year prior to entry into the Second Sale Agreement ('Fallback method 2'). Each of those fallback methods are considered below.

158 Fallback method 1 takes the figure of 64.33% (arrived at in the manner outlined at paragraph 78 above) as representing the percentage by value of the Amcor Displays' OME work that was performed by the ACB Business in the financial year prior to entry into the Second Sale Agreement. That percentage is then applied to the total value of the Amcor Displays' OME work performed in the Claim Period by (a) all of the alternative suppliers, and (b) that in fact done by Achilla (being $49,423.04 (incl. GST)), to arrive at the compensation amount. An allowance is then made for the Amcor Displays' OME work that Achilla actually did receive during the Claim Period (being the $49,423.04 (incl. GST)) to arrive at the compensation amount.

159 I am not satisfied that Fallback method 1 is an appropriate method. It proceeds on the erroneous footing that, in the Claim Period, Achilla was entitled to receive all kinds of Amcor Displays' OME work, irrespective of whether or not the ACB Business had performed that particular OME work for Amcor Displays prior to the sale. Given the findings made by the Court, the position is that Achilla has no entitlement to recover any loss and damage in respect of the Amcor Displays' work undertaken by the alternative suppliers in the Claim Period save where it has demonstrated that the work the subject of those jobs was work that the ACB Business had performed historically for Amcor Displays prior to the sale.

160 As noted above when dealing with the Holihan parties' principal submission, they acknowledge that '[t]here was no evidence of the total volume or value of OME work sent out by Amcor Displays at any point prior to the Second Sale Agreement'.[161] In the absence of such evidence, and against the background of the evidence given by Mr Holihan and the other witnesses mentioned and discussed above, I am not satisfied that it is appropriate for the Court to proceed on the footing that the figure of 64.33% (asserted by the Holihan parties) accurately represents the percentage by value of the Amcor Displays' OME work that was performed historically by the ACB Business prior to entry into the Second Sale Agreement.

161 Fallback method 2 seeks to place Achilla in the position that it would have been in if in each year of the Claim Period it had received Amcor Displays' OME work of the same value as that which the ACB Business received in the final year prior to the Second Sale Agreement, being $172,097.83.[162] As the Claim Period commenced on 27 September 2005 and ended on 31 July 2008, the stated annual value would then need to be pro-rated for the relevant periods of less than 12 months being the 2005/06 financial year and for the month of July 2008. Once again, an allowance would then have to be made for the Amcor Displays' OME work that Achilla actually did receive during the Claim Period ($49,423.04 (incl. GST)) in order to arrive at the compensation amount.

162 The Holihan parties submit that Fallback method 2 is a conservative measure because it makes no allowance for the 'organic increase in the volume of Amcor Displays' work' that they assert would have been provided to Achilla in the usual course of the business.

163 The Amcor parties, while maintaining their primary position that the Holihan parties have not proven any liability in respect of the Amcor Displays jobs, nevertheless accept that Fallback method 2 is an alternative that the Court could consider if it were against them. Counsel for the Amcor parties acknowledged that even though there is no contractual obligation under the Second Sale Agreement for the purchase of any guaranteed minimum amount of OME work, the figure of $172,097.83 referable to Amcor Displays' work that was factored into the D & D methodology is important because it was a fact known to both parties at the time they entered into the contract. In that regard, counsel for the Amcor parties observed:[163]

[MR TRAN:] . . . What's known to both parties prior to the contract is ordinarily very important to understanding how the contract should be interpreted. In circumstances where there's very little upon which the court could otherwise safely fix, in my respectful submission, that stands out as a beacon and so it's unsurprising that that should be the alternative position.

It's our only alternative and the alternative of last resort for the Holihan parties, but it's unsurprising, in my respectful submission, that the parties should end there.

164 In my view, while the evidence before the Court does not provide any clear articulation of the particular jobs or type of OME work that the ACB Business performed for Amcor Displays prior to the sale, nevertheless the evidence adduced concerning the D & D pricing methodology does record that the ACB Business did some OME work for Amcor Displays in the financial year prior to the sale, and it is clear that the parties envisaged the ACB Business would continue to perform some OME work for Amcor Displays after the sale. That is because the D & D pricing methodology, and the First Year Budget that was established for the purposes of pricing components of OME work performed under the Second Sale Agreement by the ACB Business (under new management), adopted and incorporated the sum of $172,097.83 shown in exhibit H15 as representing 'Management Unit C' being work performed by the ACB Business for 'Amcor Displays' in the 2002/03 financial year. That is to say, the First Year Budget assumed that the same volume would be manufactured in the 2003/04 year as was (in fact) manufactured in 2002/03. In that way, the pricing mechanism the ACB Business was required to use for charging for OME work performed for Amcor related customers, after the sale, was based on the method of charging used by the ACB Business before the sale.

165 The contractual arrangements in place between the parties envisaged that a budget would be prepared for the second (and each successive) year of operation under the Second Sale Agreement by the ACB Business (under new management), with reconciling adjustments to be made to reflect the actual experience of the previous year. The reciprocal purchase and supply obligations established by clause 12 of the Second Sale Agreement were intended to be mutually beneficial, with the result that the more OME work the ACB Business performed for Amcor related customers, the more attractive the pricing would become.

166 The evidence given at the trial of the counterclaim about the reconciliation exercise and adjustment of the pricing for components of OME work in successive years of the Second Sale Agreement is summarised in the Reasons.[164] Relevantly, the evidence given by Mr Papadimatos was to the effect that, because the volume used in the Second Year Budget had decreased but the costs had remained about the same, the machine rates would have increased in the second year due to the lower volume. Mr Papadimatos said that the machine rates derived from the Second Year Budget were entered into the PICK system (in place of those taken from the First Year Budget) and in terms of charging AFP for work performed by the ACB business, the same process as had applied in the first year took place. However, Mr Papadimatos did not recall (and he said he does not have any records of) the D & D rates being set after the 2004/05 financial year.[165] In those circumstances, it seems likely that the D & D pricing for work performed for Amcor entities by the ACB Business in the later years of the Second Sale Agreement continued to adopt and incorporate the assumption that work was being performed by the ACB Business for Amcor Displays approximating the sum of $172,097.83, together with any adjustments made in the 2003/04 financial year.

Volumes of Amcor Displays' work: Part C of the Holihan parties' 18 March 2019 note

167 At the recent hearing, the Court raised the question of the effect of the (approximately) $172,097.83 being included in the budget, noting that under the D & D pricing mechanism, if the ACB business was doing more work than was budgeted and that would change the D&D pricing mechanism it might well affect the calculation of damage.[166] Having raised the issue, the Court then invited the parties to comment upon whether the Amcor Displays' work had any effect on the prices which Amcor was to be charged using the D & D methodology and if so, whether it might therefore be said to affect the calculation of any damages or compensation. To that end, under Part C of their 18 March 2019 note (headed 'Volumes of Amcor Displays work'), the Holihan parties framed two questions as follows:[167]

(a) The first was whether Achilla was doing more work during the Claim Period than it had before the sale of the ACB Business (and, inferentially, whether it would have done more than that amount had it been given all the work that it now claims for). If Achilla had been given a volume of work greater than in the pre-sale period, that might have had an effect on the prices which Amcor was to be charged using the D&D methodology, and therefore might be said to affect the calculation of damages.[168]

(b) The second was what amount of Displays work was done by Achilla during the Claim Period as a proportion of the total of all of its work for AFP.[169] That raises the question of what proportion of all of the Displays work Achilla did during the Claim Period.

168 The Holihan parties responded to the Court's invitation in Part C of their 18 March 2019 note. The Amcor parties made no submission in response.

169 In dealing with the issue of total volumes, the Holihan parties note that in the year immediately preceding the Second Sale Agreement, the ACB Business supplied 11,325,000 square metres to the Amcor parties, which volume formed the basis for the pricing for the first year of the Supply Agreement.[170] While there is no dissection of that gross amount as between Amcor Displays and AFP generally, the Holihan parties submit that the tables they have prepared using the findings from the Mines Report and the data from Mr Meredith's report 'demonstrate that even if Achilla had been given all of the work that it now claims, it would have received a volume of work during the Claim Period that was lower than the pre-contract volume'.[171] In those circumstances, it seems clear that the integrity of the D & D pricing methodology would not be impaired if the Court were to adopt Fallback method 2 in order to arrive at the compensation amount.

170 In response to the second question posed, the Holihan parties produced three further tables, by extracting and summing data from exhibit A99, in order to arrive at the quantum of the Amcor Displays sales made by Achilla as a percentage of its total sales. 'Table 5' produced by the Holihan parties confirms the method by which the figure for the Amcor Displays sales, of $49,423.04 (incl. GST), was arrived at by reference to each of the 2005/06, 2006/07 and 2007/08 financial years and in July 2008. That table is extracted below:[172]

Table 5: Amcor Displays sales only - i.e. Amcor Displays sales made by Achilla

171 Table 5 demonstrates that the value of Amcor Displays' work performed by the ACB Business in the financial years 2005/06, 2006/07, and 2007/08 and in July 2008 fell well short of that performed historically by the ACB Business. In that sense, the figures recorded for the Amcor Displays' work performed by the ACB Business do not, in my view, reflect 'business as usual'.

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

172 On the evidence before the Court, it is unclear as to why the Amcor Displays' work performed by the ACB Business fell away from mid to late 2005. As noted above, the evidence given by Mr Manser was to the effect that he proposed to re-locate the purchasing functions of Amcor Displays NSW to Victoria in 2005 and have them run from a Service Containers business. He agreed that the 'plan was 'to have the manufacturing work for New South Wales Displays done from a site in Melbourne' but added that: [176]

---You've got to remember a lot of the clients within Displays are national, so the deliveries aren't necessarily New South Wales. They might be delivered to Melbourne, could be delivered to Western Australia. So the work is portable.

173 When Mr Manser was asked whether the plan did 'actually happen' he responded by saying:[177]

---We got to the situation where the work was transferred, I can't remember exactly the date, but I think it's in one of these emails here and we did mention that the transition of the work was going to take place - - -

[MR TRAN:] Okay?--- - - - and only the work that was still in the system in New South Wales would be completed in New South Wales. You can't stop a job half way through, so all new orders were being placed in Melbourne.

Okay. To be done at the Amcor owned site that was being run by Service Containers?---Mulgrave, yes.

174 As counsel for the Holihan parties observed,[178] however, Mr Manser did not say when the operational transfer to the Mulgrave site happened - '[w]hether that happened during the term of this agreement or afterwards' - and the evidence before the Court shows that Amcor Displays continued to place orders on Achilla up to 2008, which suggests that the separate Amcor Displays business continued despite any re-location to Service Containers' premises at Mulgrave. In that regard, counsel for the Holihan parties also referred to evidence that was given by Mr Kent (of Thompsons) under cross-examination, about OME work that Thomsons (who were located in New South Wales) performed for Amcor Displays in November 2005 or thereabouts that was invoiced to 'Amcor Displays Australasia' at the Mulgrave address.[179] When Mr Kent's attention was drawn to the Mulgrave location stated on the invoice (as opposed to Amcor Displays in Wetherill Park) and asked if he knew why it was sent to Displays in Victoria, he said '[t]he only thing I could think of that Amcor Displays Sydney was doing that for Amcor Displays Victoria'.[180]

175 Accordingly, counsel for the Holihan parties submitted:[181]

So there is, at least as far as Mr Kent can recall, still a separate - separately existing Amcor Displays Victoria in New South Wales. The point is: it's not safe for the court to infer, merely from the fact that the New South Wales business moved to Victoria, at some stage, that the separate Amcor Displays business, which Amcor's case on Displays hangs on the existence of, had changed, as a result of that move, and become part of this Service Containers' business. It appears to have retained its independent identity.

176 Aside from the issue of when the plan to move the Amcor Displays business to Victoria did 'actually happen', the notion that the Amcor Displays' work was 'portable' and that the finished product was capable of being delivered nationally also renders it unclear whether (and if so, what) Amcor Displays' work would continue to be encompassed within the operation of the 'business as usual' framework.

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'.[182]

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.

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.

183 It will be necessary to re-schedule a further hearing to deal with the other two outstanding issues, namely:

(a) Should the Mines Report be adopted in whole or in part, and what is otherwise to be done with it?

(b) What further procedural steps are required to progress the proceeding?

184 I will hear from the parties as to the appropriate form of orders.

(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)

[2] 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 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'.

[3] [2018] VSC 21 ('Ruling No 1').

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

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

[6] [2018] VSC 137 ('Ruling No 2').

[7] Mines Report, reference overview dated 2 November 2018, at pg 1.

[8] Part of Achilla 1A is exhibit H197 at CB 2447ff.

[9] Comprising some 1600 pages or thereabouts.

[10] See De L v Director-General, NSW Department of Community Services [No 2] [1997] HCA 14; (1997) 190 CLR 207, 215; Di Stasio Pty Ltd v R & K Services Pty Ltd [2018] VSCA 340, [80]-[81] (per Tate JA, McLeish and Niall JJA agreeing).

[11] [2018] VSCA 340.

[12] Ibid, at [71]-[72] (per Tate JA, McLeish and Niall JJA agreeing).

[13] See the Holihan parties' outline of submissions dated 5 February 2019, at [58] (footnotes omitted).

[14] The Holihan parties' outline of submissions, at [59].

[15] The Amcor parties' outline of submissions dated 5 February 2019, at [51]-[55].

[16] The Amcor parties' outline of submissions, at [55].

[17] Transcript 08/02/2019, at TT12-13 (Mr Tran).

[19] Transcript 08/02/2019, at TT30-32.

[20] In the orders of 6 February 2018, the 'Claim Documents' and 'Disputed Jobs' are defined as follows:

Claim Documents means (i) the Holihan Parties' details of claim (as rectified) dated 8 July 2017; (ii) the Amcor Parties' details of response dated 1 September 2017; and (iii) the Holihan Parties' details of reply dated 17 November 2017.

Disputed Jobs means the jobs listed in the Claim Documents which are not conceded by either party and which are not Kellogg's Pallet Jobs.

[21] Transcript 08/02/2019, at T34 (Mr Maiden QC).

[23] See the Amcor parties' outline of submissions, at [2.2(i)] and [58]-[63].

[24] In the orders of 6 February 2018, 'Amcor Displays Objection' and 'Amcor Displays Job' are defined as follows:

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]).

Amcor Displays Objection means any objection by the Amcor Parties in their details of response dated 1 September 2017 arising from an allegation by the Amcor Parties that the job was an Amcor Displays Job.

[27] Reasons, at [489]-[490] (footnotes omitted).

[28] Reasons, at [495]-[497] (footnotes omitted).

[29] Reasons, at [100] (footnotes omitted).

[33] Ibid, at [476] (footnotes omitted).

[34] That is a reference to the small portion of converting work Mr Joyce described as pertaining to the $172,097.83 of work performed by the ACB Business in the 2002/03 financial year.

[35] Holihan parties' outline of submissions, at [6(c)].

[37] Transcript 08/02/2019, at TT121-126.

[38] Comprised of 13 A3 pages (landscape format).

[39] Transcript 08/02/2019, at T79ff (Mr Maiden QC).

[40] See Reasons at [553]. Mr Pellizari of Northwest Packaging explained that 'single face pads' are made using a machine called a 'single facer'. Two reels of paper are loaded on to mill stands and fed through a heated roll so that a corrugation effect is created on one piece of paper and the other piece is laminated to it using a starch based adhesive whereby the corrugated peaks cause the adhesion. The end product is a single faced roll of about 75 metres in length (or as required) with a layer of paper on one side and a corrugated piece on the other.

[41] Transcript 08/02/2019, at T81 (Mr Maiden QC).

[43] Transcript 08/02/2019, at T117 (Mr Tran).

[44] Holihan parties' outline of submissions, at [40(c)] (footnotes omitted).

[45] In the Holihan parties' outline of submissions at [40(c)], the figure was stated as being $2,937 but this was corrected by their counsel at the hearing to be $5,413 (including Stan's): see Transcript 08/02/2019, at T98 (Mr Maiden QC).

[46] Holihan parties' outline of submissions, at [40(d)].

[48] Holihan parties' outline of submissions, at [42].

[50] That is a reference to the small portion of converting work Mr Joyce described as pertaining to the $172,097.83 of work performed by the ACB Business in the 2002/03 financial year.

[51] [2001] VSCA 167; (2001) 4 VR 28, especially at 47 [49] (per Chernov JA, with whom Charles and Vincent JJA agreed).

[52] [2007] HCA 51; (2007) 234 CLR 38, at 48 [31]-[32].

[53] Transcript 08/02/2019, at T108 (Mr Maiden QC).

[54] Holihan parties' outline of submissions, at [45].

[56] Transcript 08/02/2019, at T126 (Mr Tran).

[58] Exhibit H93.1 (Holihan WS1), at [19]-[23], [158]-[165] (emphasis added).

[59] Reasons, at [450]-[459] (emphasis added in bold) (footnotes omitted).

[60] Transcript 08/02/2019, at TT55-57.

[61] The document was headed 'Holihan parties' note following hearing on 8 February 2019' and dated 7 March 2019, though it was provided to the Court on 18 March 2019 ('Holihan parties' 18 March 2019 note').

[62] Email from the Holihan parties' solicitor to Sloss J's Chambers dated 18 March 2019.

[63] Referring to Transcript 08/02/2019, at TT55 and 57.

[65] Referring to Transcript 08/02/2019, at T143.22-28.

[66] Referring to Transcript 08/02/2019, at TT146.5-148.9.

[67] The third issue raised by the Holihan parties in 'Part C' of their note is discussed below at paragraph 167ff.

[69] Holihan parties' 18 March 2019 note, at [2].

[70] Referring to exhibit H407 (Cichonski WS), at [16] and [26].

[71] Referring to Transcript, 23/06/15, at T2322.31 ff.

[73] Ibid, at T2324.14-21. The Holihan parties also referred to Mr Kent's evidence at Transcript, 10/06/15, at TT1095-1096 that Thompsons used a large die cutter to cut the print jobs that it did for Amcor Displays in the period 2003 to 2008.

[74] Exhibit H407 (Cichonski WS), at [16].

[76] Transcript 08/02/2019, at T63 (Mr Maiden QC).

[77] Cichonski XXN, Transcript 23/06/15, at T2291 (emphasis added).

[78] Mr Garcia was an estimator who had worked with Amcor until December 2004, when he left to join Achilla. He gave evidence about the separate estimating workforce in place at Amcor Displays. Mr Garcia said he knew of Amcor Displays, describing it as 'another division': Garcia XIC, Transcript, 06/08/15, at T3512. He said that he did not do estimating work for Amcor Displays and he did not have interaction with their staff. Mr Garcia said he thought that Mr Walter Dailey and Mr Bret Roddy did the estimating work and the routing work for Amcor Displays: Garcia XIC, Transcript, 06/08/15, at TT3512-3513 and 3515. Neither Mr Dailey nor Mr Roddy was called to give evidence.

[79] Cichonski RE-XN, Transcript 23/06/15, at TT2321-2324 (emphasis added).

[80] Holihan parties' 18 March 2019 note, at [3].

[81] Referring to exhibit H410 (Silva WS), at [1] and [5].

[82] Referring to Transcript, 24/06/15, at T2419.18-19.

[83] Referring to exhibit H410 (Silva WS), at [5].

[84] Transcript 24/06/15, at T2380 (Mr Maiden). Mr Dailey was an estimator with Amcor Displays and Mr Daaboul was the employee of Mr Holihan who was seconded to AFP in or around mid-2004 to manage the Amcor Displays business.

[85] Silva XIC, Transcript 24/06/15, at T2419.

[88] Silva XXN, Transcript 24/06/15, at T2425.

[90] Silva XXN, Transcript 24/06/15, at TT2444-2445.

[93] Silva XXN, Transcript 24/06/15, at T2452.

[94] Holihan parties' 18 March 2019 note, at [4].

[95] Referring to exhibit 93.1 (Holihan WS1), at [22] and [23(a)]; Transcript, 04/06/15, TT774-775.1 and 812.10-11.

[96] Referring to exhibit 93.1 (Holihan WS1) See also at [77] as to the position in March 2003.

[98] Holihan XIC, Transcript 04/06/15, at TT774-775 and 812.

[100] Holihan XIC, Transcript 04/06/15, at TT774-775.

[101] Transcript 08/02/2019, at T62 (Mr Maiden QC).

[102] Holihan XIC, Transcript 04/06/15, at T812.

[103] Holihan parties' 18 March 2019 note, at [5] (emphasis in original).

[104] To which the Holihan parties say: '[b]y which he meant Achilla'.

[105] Referring to Transcript, 23/06/15, at T2333.3-8.

[107] Manser XIC, Transcript 23/06/15, at T2331.

[111] The transcript records his evidence as to the location of the site variously as 'Belgrave' and 'Mulgrave': see Manser XXN, Transcript 23/06/15, at TT2347-2348.

[112] Manser XXN, Transcript 23/06/15, at T2347.

[114] Holihan parties' 18 March 2019 note, at [6] (emphasis in original).

[115] Referring to Transcript, 18/06/15, at T1858.18-27.

[116] Ibid, at TT1859.6-7 and 1872.30-1873.3.

[123] A reference to the ACB Business.

[124] Joyce XIC, Transcript, 18/06/15, at T1858.

[125] Joyce XIC, Transcript, 18/06/15, at T1859.

[130] Joyce XIC, Transcript, 18/06/15, at T1904.

[133] Holihan parties' 18 March 2019 note, at [7].

[134] Referring to exhibit H368 (Whitechurch WS), at [12]. The Holihan parties say that Mr Whitechurch's evidence was that he could not recall if he sold the Grassi No. 1 to Achilla or AFP, however the June 2001 expenditure requisition and Mr Holihan's evidence about the use of the Grassi No. 1 support a finding that the machine was sold to AFP and that the ACB Business used it for litho lamination prior to the sale.

[137] Exhibit H368 (Whitechurch WS), at [5].

[139] Ibid, at [12]-[15] (emphasis added).

[140] Exhibit H93.1 (Holihan WS1), at [165].

[141] Holihan WS1 (Exhibit H93.1), at [163].

[142] Holihan parties' 18 March 2019 note, at [10]-[11].

[143] Referring to Transcript, 22/06/15, at TT2130.9-13 and 2131.20-23.

[146] Le Breton XXN, Transcript, 22/06/15, at T2130.

[147] Holihan parties' 18 March 2019 note, at [11].

[148] Ms Smithwick's affidavit is exhibit H72 (SCB 6: S2373- S2379).

[149] Exhibit H72, at [9] (SCB 6:S2373, at S2375).

[150] Mr Phillips was a former employee of Amcor, but he had been consulting to APA, the corporate entity responsible for the Amcor Fibre Packaging division, since around March 2005.

[151] Exhibit H72, at [13] (SCB 6:S2373, at S2375).

[152] See the Reasons, at [93] and [474]

[154] Phillips XXN, Transcript, 04/08/15, at TT3335-3336.

[155] Mr Nellies gave evidence about the de-commissioning of the PICK system in October 2005 or thereabouts and the movement across to the new system, 'SAP'.

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

[158] See the affidavit of Mr Holihan sworn on 7 February 2019, at [13(b)]. As the sum of $49,423.04 includes GST, the value to Achilla of the OME work and related tooling invoiced to Amcor Displays during the Claim Period was $44,930.03: ibid, at [13(c)].

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

[160] Reasons, at [428] and [430].

[161] Holihan parties' outline of submissions, at [40(d)].

[165] Exhibit H402 (Papadimatos WS), at [53].

[167] Holihan parties' 18 March 2019 note, at [13]-[14].

[168] Referring to Transcript 08/02/2019, at T143.22-28.

[170] The Holihan parties' 18 March 2019 note, at [15].

[176] Manser XXN, Transcript 23/06/15, at TT2347-2348.

[178] Transcript 08/02/2019, at T89 (Mr Maiden QC).

[179] See Tax Invoice No. S4608, ASB Vol 6: A2551 (part of exhibit H308) and Kent XXN, Transcript 10/06/15, at TT1116-1117.

[180] Kent XXN, Transcript 10/06/15, at T1117.

[181] Transcript 08/02/2019, at T87 (Mr Maiden QC).