Hodgson v Amcor Ltd; Amcor Ltd & Ors v Barnes & Ors [2012] VSC 94 (20 March 2012)


NOTE: This version has been amended pursuant to the ‘Slip Rule’ by Order made 1 May 2012 and reasons: James George Hodgson v Amcor (No. 8) [2012] VSC 162 http://www.austlii.edu.au/au/cases/vic/VSC/2012/162.html

COMPANIES – “Officer” of a corporation – Duties arising under ss 180, 181, 182 and 183 Corporations Act 2001 – Persons who constitute the directing mind of a corporation –Alleged sale of company assets on uncommercial terms – concept of an ‘uncommercial transaction’ – Whether breach of fiduciary duty for employee to participate in a sale of company assets on uncommercial terms – Noting business opportunities – Whether breach of fiduciary duty to employer – Making preparations for new business following termination of employment – Whether breach of fiduciary duty to employer – Concealing useful commercial intelligence from employer – Whether breach of fiduciary duty to employer – Failing to disclose own breaches of fiduciary duty – Whether in itself a breach of fiduciary duty to employer – Compensation under Corporations Act 2001 s 1317H – Claims by shareholders for losses suffered by a company – Claims by shareholder for damages reflective of company losses

EMPLOYER and EMPLOYEE – Redundancy at common law – Whether employee made redundant – Contractual termination by notice – Purported summary dismissal post termination – Whether purported ground of summary dismissal made out – Burden on employer to establish serious misconduct – Whether grounds of termination may change by reason of after acquired information – Application of principle in Shepherd v Felt and Textiles of Australia [1931] HCA 21; (1931) 45 CLR 359 – Entitlement to bonus – Quantum of bonus – Long service leave calculation – Annual leave calculation – Whether accrued entitlements survive termination – Sale of employers’ businesses to employees – Fiduciary duties of employees

EQUITY – Fiduciary duties of employees – Equitable remedies – Election as to relief – Equitable compensation – Taking of accounts – Causation and equitable relief – Barnes v Addy liability – Knowledge of fiduciary breach – Equitable defence of laches in relation to fiduciary claims

EVIDENCE – Admissions made by a party in computer stored information- ss 59(1), 81(1), 87(1)(a) Evidence Act 2008 – Admissions admissible against parties other than the maker – s 87(1)(a) Evidence Act 2008 – Proof of requirements under s 87(1)(a) Evidence Act 2008

PRACTICE and PROCEDURE – Application at trial to amend defence to withdraw an admission – Principles to be applied – Anshun estoppel – Principles to be applied