Luxury home builder Glenville has won an appeal of a ruling that shielded certain documents from production by legal professional privilege in a lawsuit against global packaging giant Amcor over liability for asbestos remediation at a former Amcor paper mill site in a Melbourne suburb.
Justice Matthew Connock of the Supreme Court of Victoria on Friday granted Glenville’s appeal of an an earlier ruling by an administrative judge that found some of the 2,500 documents at issue were protected by legal professional privilege. The documents were produced by non-party Golder Associates, which Amcor retained in 2015 to work on the former paper mill site after Amcor learned about unidentified contamination.
The judge agreed with Glenville that the associate judge’s ruling on a small sample of the 2,500 documents should be set aside because he had incorrectly applied sections 117, 118 and 119 of the Evidence Act 2008 instead of the common law.
Judge Connock said the relevant sections of the Evidence Act could not be applied in the circumstances because the person that was asked to produce the documents – Golder – was not the person objecting to their production.
“As unsatisfactory as that may appear, the language of the statute is clear and the position is the subject of settled authority,” the judge said.
The judge also said the question of whether and when litigation was first anticipated between Glenvill and Amcor had not been decided and remained to be addressed at a later point. Amcor’s cross-appeal took issue with the associate judge’s decision to fix December 23, 2016 as the date by which proceedings between Glenvill and Amcor regarding the contamination were anticipated, but Judge Connock said the judge had not set a date.
Glenville purchased the site of the former factory, located in Alphington, Victoria, from Amcor in 2013.
A previous trial date was vacated and no new trial date has been set down in the matter.
Amcor was represented by Kateena O’Gorman with Owen Dixon Chambers and solicitors form Gilbert + Tobin. Glenville is represented by Daniel Aghion with Chancery Chambers and solicitors from Kalus Kenny Intelex.
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