Alliance Craton Explorer Pty Ltd v Quasar Resources Pty Ltd - [2011] SASC 90

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
ALLIANCE CRATON EXPLORER PTY LTD v QUASAR RESOURCES PTY LTD & ANOR
[2011] SASC 90
Judgment of The Honourable Justice White
26 May 2011
EVIDENCE - FACTS EXCLUDED FROM PROOF - ON GROUNDS OF PRIVILEGE - PROFESSIONAL CONFIDENCE - LEGAL PROFESSION - GENERAL PRINCIPLES
EVIDENCE - FACTS EXCLUDED FROM PROOF - ON GROUNDS OF PRIVILEGE - PROFESSIONAL CONFIDENCE - LEGAL PROFESSION - PARTICULAR CASES
CONTRACTS - PARTICULAR PARTIES - PRINCIPAL AND AGENT - DUTIES AND LIABILITIES OF AGENT TO PRINCIPAL
The plaintiff (Alliance) and the first defendant (Quasar) are members of a mining exploration joint venture - Quasar is the manager of the joint venture - Quasar through the second defendant (Heathgate) obtained legal advice relating to the negotiation of a native title mining agreement (NTMA), and subsequently entered into an NTMA which purported to bind both joint venturers - Alliance alleges that Quasar was not authorised to enter into an NTMA on the terms negotiated by Quasar - Alliance seeks production of communications between Quasar and Heathgate and their legal advisors in relation to the negotiation of the NTMA - Quasar and Heathgate claim legal professional privilege in those communications.
Whether Alliance precluded from making application on the grounds on which it relied in undetermined proceedings in the Federal Court; whether the legal advice was obtained by Quasar as agent for the joint venture; whether the parties had joined in communicating with a legal advisor for the purpose of obtaining his or her advice; whether Quasar, acting as a member of a group of persons in a formal legal relationship with Alliance communicated with a legal advisor about a matter in which the members of the group share an interest; whether Alliance's contribution to the cost of the legal advice defeated the privilege; whether the privilege had been waived by Quasar's disclosure of some privileged communications.
Held: application granted - Alliance precluded from relying on grounds previously argued in the Federal Court; Quasar (through Heathgate) was acting as agent of the joint venture, and therefore as agent of Alliance; the agency did not, of itself, create joint privilege in the documents; parties held a shared interest in the documents, and as such the formal legal relationship between them created a duty to disclose - Quasar and Heathgate to disclose all documents over which privilege was claimed up to the date of execution of the NTMA, but not thereafter.
Supreme Court Civil Rules 2006 (SA) r 136; Mining Act 1971 (SA) s 6, s 16, s 34, Pt 9B; Federal Court Rules 1979 r 6, referred to.
Grant v Downs (1976) 135 CLR 674; Zentai v O'Connor (No 2) (2010) 183 FCR 180; Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 401; Carter v Northmore Hale Davey & Leake (1995) 183 CLR 121; Southern Equities Corp Ltd (in liq) v Arthur Andersen & Co (No 6) [2001] SASC 398; New South Wales v Betfair Pty Ltd (2009) 180 FCR 543; Moore v Inglis (1976) 50 ALJR 589; Henry v Henry (1995) 185 CLR 571; Rippon v Chilcotin (2001) 53 NSWLR 198; Yunghanns v Elfic Pty Ltd (2000) 1 VR 92; Farrow Mortgage Services Pty Ltd (in liq) v Webb (1996) 39 NSWLR 601; Mercantile Insurance (NSW Workers Compensation) Ltd v Murray [2004] NSWCA 151; Shrueder v Murray (No 2) [2009] WASCA 145; Commercial Union Assurance Co PLC v Mander [1996] 2 Lloyd's Rep 640; McLaughlin v Daily Telegraph Newspaper Co Ltd (1904) 1 CLR 243; Re Marshall and Discrimination Commissioner (1996) 42 ALD 101; Scott v Davis (2000) 204 CLR 333; Leicestershire County Council v Michael Faraday & Partners Ltd [1941] 2 KB 205; Breen v Williams (1996) 186 CLR 71; Chantrey Martin v Martin [1953] 2 QB 286; Mann v Carnell (1999) 201 CLR 1; British American Tobacco Australia Services Ltd v Cowell (2002) 7 VR 524; AWB Ltd v Cole (No 5) (2006) 155 FCR 30; Attorney-General (NT) v Maurice (1986) 161 CLR 475; Buttes Gas & Oil v Hammer [1981] 1 QB 223; Bulk Materials v Coal & Allied Operations (1988) 13 NSWLR 689; Network Ten Ltd v Capital Television Holdings Pty Ltd (1995) 36 NSWLR 275; Wentworth v De Montfort (1988) 15 NSWLR 348, considered.

ALLIANCE CRATON EXPLORER PTY LTD v QUASAR RESOURCES PTY LTD & ANOR
[2011] SASC 90
Civil Application

WHITE J. The defendants, Quasar Resources Pty Ltd (Quasar) and Heathgate Resources Pty Ltd (Heathgate), have each made disclosure of documents in accordance with the Rules of Court.[1] Each objects, on the grounds of legal professional privilege, to producing a number of documents for inspection by the plaintiff, Alliance Craton Explorer Pty Ltd (Alliance). The issue in these interlocutory proceedings is whether these objections are appropriate.
[1] Supreme Court Civil Rules 2006, r 136.
In order to understand the grounds upon which Alliance makes its application for production it is necessary to refer to the relationship between the parties and the nature of the dispute between them. For this purpose, I rely on the allegations in the pleadings and the affidavits received into evidence at the interlocutory hearing.[2]
[2] Alliance has applied to amend its statement of claim. It was not suggested that the proposed amendments have any bearing on Alliance’s present application. Accordingly, for the purposes of the present decision, I have referred to the statement of claim as amended on 22 January 2010.
Background Circumstances
On 30 August 2002 Alliance and Heathgate entered into an agreement establishing an unincorporated “contractual joint venture” (the JVA).[3] The purpose of the joint venture was to explore an area covered by Exploration Licence 2874 (now EL 3666) for minerals, to determine the viability of any mineral resource and, if such viability was established, to develop and mine the relevant portions of EL 3666 (cl 4.3). The JVA contemplated that Heathgate, on satisfying specified conditions, would have a 75 per cent interest in the joint venture and Alliance 25 per cent.
[3] In some of the documents the joint venture is referred to as the “Four Mile Joint Venture”.
Three months later, Heathgate, with the agreement of Alliance, transferred its rights and obligations under the JVA to Quasar. It was common ground that, subject to variations made on 29 September 2004, the JVA continues in force and binds both Alliance and Quasar. It was also common ground that Quasar has satisfied the specified requirements for a 75 per cent beneficial interest in the joint venture and that it does now have such an interest.
Quasar and Heathgate are associated entities within the meaning of s 50AAA of the Corporations Act 2001 (Cth). Both are controlled by Baywood Holdings Inc. Their ultimate parent company is General Atomics Technologies Corporation. In addition, Quasar and Heathgate have one common director, and occupy adjoining office space in Adelaide. Quasar does not have any full-time employees. When necessary it has engaged Heathgate, for consideration, to carry out specified tasks on its behalf.
Heathgate is the owner and operator of the Beverley Uranium Mine which is located on a tenement adjacent to EL 3666.
Quasar is the manager of the joint venture (cl 6.1). During a period described in the JVA as the “Free Carry Period” Quasar was solely responsible for the program and budgets relevant to the exploration and development of EL 3666 (cl 4.4). After the date of a decision to mine, Quasar was to continue as manager, but each joint venturer then became liable to contribute to the costs of the joint venture in accordance with their respective interests in the joint venture (cl 10.4). Quasar was authorised to make the decision to mine on EL 3666, and also to determine where on EL 3666 mining should be carried out (cl 10.1).
The parties contemplated that in the event that Quasar decided to develop a commercial mine, the development and operation of the mine would be regulated by a new joint venture agreement to be negotiated between them (cl 10).
On 22 September 2008, Quasar gave Alliance notice of its decision to mine the part of EL 3666 known as the Four Mile Mine Development Area (the Four Mile Area). The parties have accepted that the mine decision date is 22 October 2008. Quasar also submitted to the Department of Primary Industries and Resources of South Australia (PIRSA) a joint application by it and Alliance for the grant of a mining lease in respect of the Four Mile Area.
By virtue of ss 16 and 34 of the Mining Act 1971 (SA) a mining lease is required before mining operations (which include exploration operations) can be carried out.[4]
[4] See also the definitions of “Mine” and “Mining Operations” in s 6(1) of the Mining Act.
The area covered by EL 3666 is now subject to the native title of the Adnyamathanha people and, for some years before the determination of that title, had been subject to claim by the Adnyamathanha people. It was common ground that, by virtue of Part 9B of the Mining Act, a mining lease in respect of EL 3666 could be granted only if the applicants had entered into a native title mining agreement with the Adnyamathanha people. This requirement is reflected in cl 6.4 of the JVA, which provides:
The parties acknowledge that the conduct of any exploration operations on [EL 3666] is subject to the requirements of the Mining Act concerning the conduct of such operations on native title land. [Quasar], as Manager is authorised by Alliance to enter into such agreements and/or make such other arrangements with Native Title claimants, as [Quasar] deems appropriate or necessary in order to comply with Part 9B of the Mining Act.
Quasar pleads that in 2005 and 2006 it had, as agent for and on behalf of the joint venture parties, negotiated a Work Area Clearance Agreement (WAC Agreement) with representatives of the Adnyamathanha Native Title claimants.[5] This agreement permitted it to conduct exploratory operations on EL 3666.
[5] Amended Defence at [40.5].
On 11 June 2009, Quasar and Heathgate entered into a native title mining agreement (the First NTMA) with the Adnyamathanha Traditional Lands Association (ATLA) which was acting as agent for the Adnyamathanha people as Registered Native Title Holders. Part 9B of the Mining Act contemplates that upon its registration by the Mining Registrar, such an agreement would become binding on, and enforceable by or against, the original parties to the agreement, the holders from time to time of native title on the land to which the agreement relates, and the holders from time to time of any exploration authority or production tenement under which mining operations to which the agreement relates are carried out.[6]
[6] Mining Act 1971 (SA) s 63R.
The Mining Registrar refused to register the First NTMA, with the effect that a mining lease could not be granted in respect of the Four Mile Area. The Mining Registrar took the view that as Quasar and Alliance were joint applicants for the grant of the mining lease, it was necessary for Alliance to be a named party to the First NTMA, which it was not. Quasar contends that Alliance had, by the terms of the JVA and in particular by cl 6.4, authorised it to enter into the First NTMA on its behalf.
Alliance commenced the present proceedings against Quasar and Heathgate on 12 November 2009. The subject of the proceeding is the First NTMA. Alliance alleges that Quasar was not authorised by the JVA to enter into the First NTMA. It pleads a number of features of the First NTMA, including the fact (in some cases, the fact as asserted by Alliance) that the First NTMA relates to both the Four Mile Area and the tenement on which Heathgate conducts the Beverley Uranium Mine (ASC [50]); that the Advisory Committee established under the Agreement relates to both tenements (ASC [56]); that the Agreement creates a joint and severable liability in Heathgate and the joint venturers in relation to certain liabilities with the effect that the credit risk of Heathgate in relation to those liabilities could fall on the joint venturers (ASC [66]); that the joint venturers would be responsible, as between them and Heathgate, for certain costs despite the fact that Heathgate had previously been liable in its own right for at least some of those costs (ASC [58]); and that the Agreement authorised Heathgate to act on behalf of the joint venturers in relation to certain matters without any express obligation on it to act in the best interests of the joint venture when doing so (ASC [71]).
Alliance contends that cl 6.4 of the JVA did not confer authority on Quasar to enter into a native title mining agreement on behalf of the joint venture in respect of any area other than EL 3666 (or at least portion of EL 3666); or to enter into such an agreement with the purpose or effect of securing benefits for a party other than a joint venturer, or which would have the effect of exposing the joint venturers to the separate financial liabilities of Quasar’s related entity, Heathgate (ASC [75]). In addition, Alliance contends that in entering into the First NTMA Quasar has acted in breach of fiduciary duties and in breach of the duty of good faith which, in each case, arose from the terms of the JVA and the nature of the joint venturers’ relationship (ASC [35]-[38], [73]-[75]).
Alliance seeks declarations that, in executing the First NTMA on behalf of the joint venture, Quasar exceeded its authority, acted in breach of its fiduciary duties and has breached its contractual obligation of good faith to Alliance. It seeks a declaration that Heathgate knowingly participated in Quasar’s breaches and, as against each, seeks damages and/or equitable compensation.
Each of Quasar and Heathgate deny the allegations of breach and deny Alliance’s entitlement to the relief which it seeks. In addition, each raises a counterclaim against Alliance. The basis of Quasar’s counterclaim is an assertion that Alliance has wrongly disputed its authority to enter into the First NTMA. It claims damages and/or compensation from Alliance. Heathgate asserts that it is entitled to be indemnified by Alliance in respect of any amount which it becomes liable to pay as a result of Alliance’s claims. This entitlement to indemnity is said to arise from the 2002 Agreement by which Quasar took Heathgate’s place in the joint venture.
Although the following background is not strictly necessary for the determination of the present application, I include it for completeness.
On 12 May 2010, Quasar, acting (or, as Alliance contends, purporting to act) as manager of the joint venture and to exercise the authority given to it by cl 6.4, entered into a further native title mining agreement with ATLA as agent for the Native Title Holders (the Second NTMA). The Second NTMA terminates and replaces the First NTMA. The Mining Registrar has refused to register the second NTMA with the effect that a mining lease has still not been granted in relation to the Four Mile Area.
Quasar issued separate proceedings in this Court on 30 November 2010 to which the Mining Registrar and Alliance are defendants. In those proceedings Quasar seeks a declaration and other orders which would require the Mining Registrar to register the Second NTMA. Alliance disputes that Quasar is entitled to that relief.
Alliance has applied to amend its statement of claim in the present action so as to plead Quasar’s entry into the Second NTMA; to plead that that entry was not authorised by the JVA and, or in the alternative, was in breach of the fiduciary and contractual duties owed by Quasar; and to claim declarations and other relief to give effect to those contentions. No party suggested that the proposed amendments were pertinent to Alliance’s asserted entitlement to production of the documents for which Quasar and Heathgate have claimed privilege.
The Circumstances Giving Rise to the Claim of Privilege
As noted earlier, Quasar has no full-time employees. It was accustomed to act through its Directors and, from time to time, to engage Heathgate, which does have employees, to carry out activities on its behalf. Quasar issued a series of “Purchase Orders” to Heathgate by which it sought the provision of “Mine Development Services” for the joint venture including, in relation to “Aboriginal Affairs”, the negotiation of a “Native Title Agreement with land claimants, liaison with external legal parties and various governmental departments”. By this means Heathgate came to act on behalf of Quasar (at the least) in the negotiation of the First NTMA.
Heathgate tendered at the hearing copies of the purchase orders it had received from Quasar for the period commencing on 22 October 2008 and concluding on 30 June 2009. Each Purchase Order expressly required Heathgate to preserve the confidentiality of Quasar’s information.
The principal employee of Heathgate who carried out or arranged on Heathgate’s part the provision of the services to Quasar pursuant to the purchase orders was Mr Wedd, Heathgate’s Director of Resource Development. Mr Wedd also had the principal responsibility, on behalf of Quasar and Heathgate, for the negotiation of the first NTMA with ATLA.
Mr Wedd deposes that in about September 2008 he telephoned Ms Steed, a partner in the Adelaide legal firm of McDonald Steed McGrath Lawyers (McDonald Steed).[7] He asked Ms Steed to prepare a draft native title mining agreement and to assist in the negotiations of the agreement with Johnston Withers, the law firm acting for ATLA. Thereafter, and until the execution of the First NTMA, Mr Wedd communicated from time to time with Ms Steed (or her partner Mr McDonald) and representatives of ATLA.
[7] This was before the commencement of the period to which the earliest of the tendered purchase orders related, but it was not suggested that anything turns on this.
Commencing in March 2009, Mr Wedd also sought, on behalf of Heathgate and Quasar, legal advice from a Ms Engström regarding the terms of the native title mining agreement then being negotiated with ATLA. Earlier, on 24 January 2009, Mr Roberts, a director of Quasar, had also requested legal advice from Ms Engström concerning communications which Quasar proposed having with Alliance in relation to the joint venture. Ms Engström is an attorney employed as the General Counsel of General Atomics. She provides legal services to General Atomics and its affiliates, which include Heathgate and Quasar. In that role Ms Engström is supported by others, including Ms Lee. Each of Ms Engström and Ms Lee has appropriate legal qualifications and is admitted to practise law in New York and California in the United State of America.
In about late March 2009, Ms Engström sought advice from Mr Vickery and Mr Grey, partners in Minter Ellison, regarding the native title mining agreement then being negotiated with ATLA. Pursuant to that request Mr Grey took instructions from, and provided legal advice to, Mr Roberts, Mr Wedd, Ms Engström and Ms Lee. Minter Ellison advised Quasar on the draft NTMA but was not itself involved directly in the negotiation of the First NTMA.
The Documents for which Quasar Claims Privilege
Quasar has claimed privilege in respect of 48 documents, 18 of which are described as attachments to others of the listed documents. Apart from five documents, all bear dates indicating that they were brought into existence during the period of negotiations for the First NTMA and before its execution or, if undated (such as option papers or drafts of agreements), were attachments to documents brought into existence during this period.

It is appropriate to consider separately the five documents which post-date 11 June 2009. I will defer consideration of those documents for the time being.
Of the 43 documents brought into existence before the First NTMA was executed, 20 comprised or formed part of communications between Mr Wedd or his fellow employees in Heathgate (Mr McConachy, Ms Otte, and Mr Gaudio) or Mr Roberts, on the one hand, and Ms Steed or her partner Mr McDonald, on the other; six comprised or formed part of communications between Mr Wedd or Mr Roberts, on the one hand, and Ms Engström and/or Ms Lee on the other; six comprised communications between Mr Wedd and Mr Roberts recording legal advice given to Mr Wedd or the advice sought by Mr Roberts; three were communications between Mr Wedd and Mr Vickery or Mr Grey; two were communications between Mr Grey and Ms Engström; four were between Mr Grey and Mr Vickery; one was between Mr Williams (the President at the time of Heathgate) and Mr Wedd; and one communication was between Mr Grey and Ms Steed. Quasar claimed that all these communications occurred as part of the request for, provision of, or recording of, legal advice to it and Heathgate or, in some instances, to it alone.
The Documents for which Heathgate Claims Privilege
Heathgate has disclosed and claimed privilege for most of the documents contained in Quasar’s list. However, Heathgate has not disclosed an email from Mr Roberts to Ms Lee, two emails from Mr Grey to Ms Engström, and three emails between Mr Grey and Mr Vickery, each of which has been disclosed by Quasar, and each of which communications occurred before the execution of the First NTMA on 11 June 2009. In relation to the same period Heathgate has also disclosed one document not disclosed by Quasar, namely, an email from Mr Wedd to Mr McDonald which it claims is the subject of the joint privilege of Quasar and it.
Heathgate has claimed privilege in respect of only one document bearing a date after the execution of the First NTMA. Again, it will be appropriate to give separate consideration to that document.
Basis of Alliance’s Application
Alliance contends, on seven different grounds, that Quasar and Heathgate are not entitled to withhold production and inspection of the privileged documents. The seven grounds are:
1.the documents are the property of the joint venture which it owns as tenants in common with Quasar;
2.Quasar, in its capacity as manager of the joint venture, holds the joint venture property, which includes the documents, on trust for the joint venturers;
3.Quasar, as manager of the joint venture, owes a fiduciary duty to the joint venturers to keep them informed and to permit them to inspect joint venture records;
4.an express or implied term of the JVA gives Alliance an entitlement to access to the documents;
5.the legal advice which gives rise to the privilege was sought or received by Quasar or Heathgate, as the case may be, as agent for the joint venture;
6.in relation to certain of the documents, Alliance contributed to the cost of the legal advice which was sought or received;
7.even if the documents were originally privileged, there has been a waiver of that privilege in relation to most of the documents by reason of Quasar’s and Heathgate’s disclosure to PIRSA on 7 April and 22 June 2009 of the legal advice which they had received.
Alliance originally advanced five additional grounds which included an assertion, in relation to some documents, that their dominant purpose was not the request for, provision of, or recording of, legal advice. However, at the hearing it no longer pressed those grounds. It accepted that the dominant purpose test was satisfied in relation to each of the documents in dispute.
Although relying on each of seven grounds, Alliance’s principal submission was that each of the documents was the subject of a joint privilege, that is, a privilege held jointly by Quasar, Heathgate and it, or in some cases by Quasar and it, with the effect that it was appropriate for Quasar and Heathgate jointly in relation to most of the documents, and individually in relation to the remainder, to claim privilege from coerced production of the documents to strangers but not to production to Alliance.
Ground 7 which concerns waiver will require separate consideration.
Onus of Proof
There was disagreement between the parties as to who had the onus of proof. As it happens, I do not regard the resolution of any of the matters in dispute as turning on the location of the onus of proof. Accordingly, I will state my view quite briefly.
The underlying principle is that it is the party claiming the privilege which relieves it from the coerced production of documents who must show that the documents are privileged.[8] Quasar and Heathgate contended that since Alliance accepted that legal professional privilege did attach to the documents, the onus was on it to establish that it was a party to the joint privilege. Apart from one case concerning waiver, to which different considerations apply,[9] Quasar and Heathgate did not cite any authority in support of this contention.
[8] Grant v Downs (1976) 135 CLR 674 at 689 (Stephen, Mason and Murphy JJ).
[9] Zentai v O’Connor (No 2) [2010] FCA 252; (2010) 183 FCR 180.
In my opinion, the submission ought not be accepted, at least without qualification. The submission assumes that a party resisting production on grounds of privilege is obliged to establish only that the dominant purpose of the communication to which the document relates was for the purpose of requesting, giving or recording of legal advice. It overlooks that, with the exception of waiver and particular cases in which the objector may have an evidential onus,[10] it is the claimant of the privilege who must establish the circumstances relieving it from coerced disclosure of the documents in question. I respectfully agree with the following statement of Debelle J in Southern Equities Corp Ltd (in liq) v Arthur Andersen & Co (No 6):
A claim for privilege in a list of documents can constitute no more than a prima facie presumption that the document is privileged. The claim amounts to no more than a bare assertion. It has not been verified by affidavit.
If the opposing party adduces evidence which is capable of rebutting the prima facie presumption that the documents are privileged, the party asserting the claim for privilege must lead evidence to establish the claim. If he fails to do so, the claim for privilege will not, in all likelihood, be upheld.[11]
[10] Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 at 546; Carter v Northmore Hale Davey and Leake (1995) 183 CLR 121 at 163.
[11] [2001] SASC 398 at [13]-[14].
In this case, Quasar and Heathgate assert the existence of a privilege which is theirs, and theirs only, and therefore that Alliance is not entitled to access to the documents. Accordingly, the discharge of the onus in the present case requires Quasar and Heathgate to establish not only that the documents record communications for the dominant purpose of requesting or giving legal advice, or are themselves a record of legal advice, but also that the privilege is not shared with Alliance.
On the other hand, Alliance relied heavily on the existence of a principal-agent relationship for its claim of joint privilege. On established principle, Alliance has the onus of establishing the agency relationship upon which it relies.[12] Alliance should accordingly be regarded as carrying the onus on that topic.
[12] McLaughlin v Daily Telegraph Newspaper Co Ltd (1904) 1 CLR 243 at 276.
As noted earlier, waiver is to be treated differently. There the issue is whether the privilege which once attached to the documents has been lost by the claimant’s use of them. It is the person making that assertion who carries the onus. [13] Accordingly, Alliance carries the onus in relation to its claim of waiver.
[13] New South Wales v Betfair Pty Ltd [2009] FCAFC 160 at [54]; (2009) 180 FCR 543 at 556.
Pursuit of Grounds 1-4 an Abuse of Process
Each of Quasar and Heathgate contend that Alliance should not be permitted to advance in these proceedings Grounds 1-4 identified above. They submit that these matters had been advanced by Alliance in separate proceedings which it had commenced in the Federal Court on 16 November 2009. [14] Quasar and Heathgate are the respondents to those proceedings.
[14] Action No SAD 180 of 2009.
In the Federal Court action, Alliance sought pre-action discovery under Order 15, r 6 of the Federal Court Rules 1979 of specified documents and a declaration that it has a “proprietary right to access and retain copies of all documents” of the joint venture. Mansfield J has conducted a hearing of these claims and judgment is presently reserved.
It was not suggested that the documents to which Alliance seeks access by its present application were also the subject of Alliance’s application for pre-action discovery in the Federal Court. However, Alliance acknowledged that the documents now sought comprise a “small subset” of the documents which were the subject of the claimed proprietary right.
Consideration of the grounds relied upon by Alliance in the Federal Court indicates that in that action it relied on Grounds 1-4 identified above.
It is prima facie vexatious and oppressive for litigants to seek the determination in separate proceedings of the same issues against the same parties.[15] That is particularly so when, as in this case, the proceedings are brought in separate courts. That gives rise to the potential for conflicting judgments of two courts with a resultant undermining of public confidence in the administration of justice.[16]
[15] Moore v Inglis (1976) 50 ALJR 589 at 591-2; Henry v Henry (1995) 185 CLR 571 at 590-1.
[16] Henry v Henry (1996) 185 CLR 571 at 590-1; Rippon v Chilcotin Pty Ltd [2001] NSWCA 142 at [36]; (2001) 53 NSWLR 198 at 205.
Quasar and Heathgate do not submit that the substantive proceedings in this Court or Alliance’s interlocutory application seeking orders for production of the disclosed documents for which privilege was claimed are themselves vexatious or offensive. They claim only that Alliance should not be permitted to re-agitate in this Court Grounds 1-4 because they are the grounds on which Alliance’s advanced its claimed proprietary right in the Federal Court. They did not contend that, if their objections to those grounds were upheld, there would be some consequential effect on any of the remaining grounds.
Alliance submits that the present proceedings do not constitute an abuse and are not vexatious or oppressive because it seeks only an interlocutory determination of its claims, whereas in the Federal Court it had sought final relief. It contended, relying on the decision of Warren J in Yunghanns v Elfic Pty Ltd,[17] that in the present case it had only to establish an arguable case of a proprietary right.
[17] [2000] VSC 113 at [19]-[20]; (2000) 1 VR 92 at 99.
I do not consider that Alliance’s submission concerning the absence of vexation or oppression should be accepted. I consider that for present purposes the differences in the onus of proof and the interlocutory nature of the present proceedings are immaterial.
I am satisfied that Alliance is seeking to re-agitate in this Court the matters in respect of which judgment has been reserved in the Federal Court and that Quasar and Heathgate have made good their claims of vexation, oppression and abuse of process.
I decline therefore to consider, both individually and in relation to the claims of joint privilege, the first four grounds upon which Alliance advances its claim.
Joint Privilege
As previously noted, Alliance’s principal submission was that the privilege attaching to the communications recorded in the documents in issue was a privilege which it shared jointly with Quasar and Heathgate. This meant, it submitted, that the privilege against coerced disclosure of the documents did not preclude disclosure to those sharing the privilege: it precluded only coerced disclosure to strangers.
Joint Privilege – The Principles
Alliance relied on the statement of Sheller JA in Farrow Mortgage Services Pty Ltd (in liq) v Webb[18] regarding joint privilege:
Two or more persons may join in communicating with a legal adviser for the purpose of retaining his or her services or obtaining his or her advice. The privilege which protects these communications from disclosure belongs to all the persons who joined in seeking the service or obtaining the advice. The privilege is a joint privilege. So is it also if one of a group of persons in a formal legal relationship communicates with a legal adviser about a matter in which the members of the group share an interest. Communications by one partner about the affairs of the partnership or a trustee about the affairs of the trust are examples. Implicit in the relationship is the duty or obligation to disclose to other parties thereto the content of the communication. Accordingly no privilege attaches to such communications as against others who, with the client, share an interest in the subject matter of communication. But the parties together are entitled to maintain the privilege “against the rest of the world”: Phipson, par 20-28 and par 28-29. Logically the joint nature of the privilege means that all to whom it belongs must concur in waiving it. Theirs is one inseverable right.[19]
[18] (1996) 39 NSWLR 601.
[19] Ibid at 608.
This passage from Farrow has been adopted, or referred to with approval, in a number of subsequent decisions including Yunghanns v Elfic Pty Ltd;[20] Mercantile Insurance (NSW Workers Compensation) Ltd v Murray[21] and Shreuder v Murray (No 2).[22]
[20] [2000] VSC 113; (2000) 1 VR 92.
[21] [2004] NSWCA 151 at [43].
[22] [2009] WASCA 145 at [9], [64]-[65]; (2009) 260 ALR 139 at 142, 152-3.
Sheller JA referred to two circumstances in which a joint privilege may arise: when two or more persons join in communicating with their legal advisors for the purpose of retaining their services or obtaining their advice; or when one of a group of persons in a formal legal relationship communicates with the legal advisor about a matter in which the members of the group share an interest.
Quasar and Heathgate submitted that in the second of these alternatives, an obligation by one member of a group to disclose its communications with a legal advisor about a matter of shared interest to the other members of the group was a necessary and additional element for the existence of the joint privilege. Alliance, on the other hand, submitted that such an obligation was of a consequential kind, ie, it arose from the circumstance that one of a group in a formal legal relationship had sought legal advice on a matter in which all group members shared an interest. This difference led to some debate at the hearing about what Sheller JA had intended to convey by the quoted passage.
In Winterthur Swiss Insurance Company v AG (Manchester) Ltd (in liq),[23] Aikens J observed:
The cases have refused to be prescriptive about the circumstances in which the two parties will have a sufficient “common interest” in the particular communications concerned. The issue has to be decided on the facts of the individual case.[24]
This passage suggests that it will not be all cases in which two parties in a legal relationship will have the requisite common interest. Similarly, in Commercial Union Assurance Co PLC v Mander,[25] Moore-Bick J observed:
[T]he right to obtain disclosure of documents in this context depends upon their having been obtained by one party in furtherance of a joint interest, and in that sense on behalf of all those who share it. In a case where the documents contain legal advice that joint interest must exist at the time the advice is sought … .[26]
[23] [2006] EWHC 839.
[24] Ibid at [80].
[25] [1996] 2 Lloyd’s Rep 640.
[26] Ibid at 645-6.
Given that the joint privilege arises from both the nature of the relationship between the parties in any given circumstance, and the purpose of the communication with the legal advisor, it is to be expected that, while a joint privilege will arise in many cases in which parties are in a formal legal relationship, it may not be all. This impression is confirmed by the paragraphs in the 14^th edition of Phipson on Evidence to which Sheller JA referred:
No privilege attaches to communications between solicitor and client as against persons having a joint interest with the client in the subject-matter of the communication, eg as between partners; a company and its shareholders; trustee and cestui qua trust; lord and tenants of a manor as to customs of a manor; a lessor and lessee as to production of the lease; reversioner and tenant for life as to common title; two persons stating a case for their joint benefit; or a husband and wife who are not genuinely, but collusively, in contest. Nor does any privilege attach as between joint claimants under the same client – eg between claimants under a testator as to communications between the latter and his solicitor.
Thus where two persons agree to divide the profits made by one of them on contracts made with third parties, the person who does not make the contracts is entitled to production from the person who does of, for example, the opinions of counsel relating to litigation between the contractor and a third party.
But where the communications relate to matters outside the joint interest, they are privileged even as against a person bearing the expense of the communication – eg communications between a plaintiff corporation and its solicitors, against a defendant ratepayer as to matters not connected with the rates; or between a company and its solicitors consisting of confidential advice to the former in an action against a shareholder; or between a trustee and his solicitor as against the cestui qua trust, where the communication is not made for the former’s guidance in the trust, but to enable him to resist litigation by the latter; or where it concerns his character, not as trustee, but as mortgagee of the client.[27]
(Emphasis in original) (Citations omitted)
Phipson also observed that the joint interest which will give rise to a joint privilege in the communications of one member of a group with a legal advisor is not a rigidly defined concept.[28]
[27] M N Howard, Peter Crane and Daniel A Hochberg, Phipson on Evidence (Sweet & Maxwell, 14^th ed, 1990) at 20-8.
[28] Ibid at 20-9.
Finally, I note that Alliance’s submission would, in effect equate the circumstances in which a joint privilege arises with those in which the courts have found the existence of common interest privilege,[29] whereas the two concepts are conceptually distinct.
[29] See, for example, Buttes Gas & Oil v Hammer (No 3) [1981] 1 QB 223; Bulk Materials v Coal and Allied Operations (1988) 13 NSWLR 689; Network Ten Ltd v Capital Television Holdings Pty Ltd (1995) 36 NSWLR 275.
In these circumstances, I do not accept the submission of Alliance that, in relation to the second of the two alternatives identified by Sheller JA, the Court’s satisfaction that two persons were in a formal legal relationship and that the communication of one concerned a matter of common interest, will be sufficient for the privilege to be joint. I will proceed on the basis that a joint privilege will arise when one of a group of people in a formal legal relationship communicates with a lawyer for the purpose of obtaining or receiving legal advice about a matter in which the members of the group share an interest, and when there is implicit in the relationship between the group members a duty or obligation to disclose to the other members the content of the communication.
Alliance’s Contention Concerning Joint Privilege
Alliance contends that each of the two alternatives to which Sheller JA referred in Farrow Mortgage Services is satisfied in the present case. In support of this submission it referred to a number of facets of its relationship with Quasar. Those facets included its claimed proprietary interest in the documents; the asserted trust relationship; the asserted fiduciary duty; and the asserted contractual right to access documents which were the subject of Grounds 1-4. For the reasons already indicated, I consider that it is not open to Alliance to re-agitate those grounds in these proceedings.

However, that is not determinative of Alliance’s claim of joint privilege because it also relies substantially on the contention that, in relation to the negotiation and execution of the First NTMA, Quasar had acted as its agent or, alternatively, as agent of the joint venture. The consequence of the principal/agent relationship was, Alliance contended, that both it and Quasar had sought and received the legal advice to which the documents in question refer. Alliance submitted in the alternative that by virtue of the principal/agent relationship in the context of the joint venture relationship, Quasar and it formed a “group of persons in a formal legal relationship” of the kind referred to by Sheller JA in the second circumstance in which joint privilege will arise.
Principal-Agent Relationship in Relation to the First NTMA
In assessing Alliance’s submission, it is appropriate to refer first to the material indicating an agency relationship.
The starting point must be the JVA, as its terms govern the parties’ relationship. Clause 13.6 addresses the question of agency directly. It provides:
13.6No partnership: Except as otherwise specifically provided in this Agreement, nothing contained in or otherwise arising from this Agreement shall constitute the parties as partners or any party as the agent for or legal representative of another and no party shall pledge the credit of another party.
It can be seen that, subject to the express proviso in the opening words, Alliance and Quasar agreed that nothing in, or arising from, the JVA was to constitute either party as an agent for the other. The terms in which cl 13.6 is expressed appear wide enough to encompass Quasar’s role as manager of the joint venture as well as its more general role as a joint venturer.
However, cl 6.4 to which I referred previously, does appear to be a provision in the JVA which specifically provides to the contrary. By cl 6.4, Alliance authorised Quasar, in its capacity as manager of the joint venture, “to enter into such agreements and/or make such other arrangements with Native Title claimants as [Quasar] deemed appropriate or necessary in order to comply with Part 9B of the Mining Act”. On its face, cl 6.4 appears to be an express grant of authority to Quasar permitting it to enter into agreements or other arrangements with native title claimants which would bind both it and Alliance. It is strongly suggestive of the appointment of Quasar as the agent of the joint venture in relation to agreements concerning native title. That is so whether it is an agency in the narrow sense (an authority or capacity in one person to create legal relations between a person occupying the position of a principal and third parties)[30] or in the broader sense (an authority in one person to act on behalf of a principal in respect of some particular act or matter).[31] Accordingly, I do not regard cl 13.6 as precluding a finding of the relationship of principal and agent in relation to the negotiation and execution of the First NTMA.
[30] Scott v Davis [2000] HCA 52 at [227]; (2000) 204 CLR 333 at 408.
[31] See G E Dal Pont, Law of Agency (Butterworths, 2^nd ed, 2008) at [1.2].
The parties’ pleadings refer extensively to a principal/agency relationship between Alliance and Quasar (although, somewhat curiously, Quasar’s amended defence and counterclaim is more explicit in this respect than Alliance’s amended statement of claim). The latter contains no express allegation of agency but [41] alleges that on or about 11 June 2009 Quasar “purportedly on behalf of the Joint Venture” and Heathgate entered into the First NTMA with ATLA, and [75]-[76] allege expressly that Quasar exceeded its authority in doing so.
Quasar’s amended defence contains numerous pleas of actions taken by Quasar for or on behalf of the joint venture, or for and behalf of the joint venturers. It pleads that as manager “for and on behalf of the Joint Venture and in accordance with the authority granted to it, including by Alliance under paragraphs 6.4, 10.2 and 11.1 of the JVA”, it initiated negotiations with Adnyamathanha Community leaders for a WAC Agreement to enable the joint venture to conduct exploratory works on EL 3666 [40.3]; that as “agent for and on behalf of the parties to the JVA” it entered into such a WAC Agreement [40.5]; that “on behalf of the parties to the JVA” it lodged the WAC Agreement with PIRSA for registration under the Mining Act [40.7] and that Alliance did not challenge its authority, or the scope of its authority, to do so [40.9].
In relation to the First NTMA, Quasar pleads that as manager “for and on behalf of the Joint Venture and in accordance with the authority granted to it, including by Alliance under paragraphs 6.4, 10.2 and 11.1 of the JVA” it initiated negotiations with ATLA for a native title mining agreement [40.12] and that “as agent on behalf of the Joint Venture” it entered into the First NTMA with Heathgate and ATLA [41.2]. Quasar also pleads that on 17 July 2009 it requested Alliance to execute a deed poll confirming that it is and was at all times duly authorised “as Alliance’s agent” to conduct negotiations with the native title holders and to execute the First NTMA on Alliance’s behalf [48.1]. Further, Quasar pleads a letter sent by it to Alliance on 20 July 2009 in which it confirmed that it “had acted within the authority conferred upon it under [6.4] of the JVA” in entering into the First NTMA “on behalf of the Joint Venturers” [48.3]. Quasar also pleads that it had endeavoured to satisfy the Crown Solicitor’s office, which was acting for PIRSA, of the basis of its authority to execute the First NTMA on behalf of the joint venture [48.4].
In its counterclaim, Quasar relies upon the authority granted to it by cl 6.4 of the JVA. It pleads that Alliance has breached the JVA by disputing its authority, or the scope of its authority, under the JVA to enter into the First NTMA for and behalf of the joint venture parties [3.1]; that Alliance is estopped from refusing to recognise its authority under the JVA to enter into the First NTMA for and on behalf of the JVA [7]; and that Alliance is estopped from denying and/or disputing Quasar’s authority under the JVA to enter into the First NTMA for and on behalf of the joint venturers [8].
Heathgate’s amended defence pleads that Quasar “as agent for and on behalf of the parties to the joint venture” entered into the First NTMA with it and ATLA [41].
Heathgate submitted that the phrase “on behalf of” used in its and Quasar’s pleadings does not necessarily connote an agency relationship. One may accept that that is so,[32] but each of the respective pleadings of Quasar and Heathgate appear to use the expression to connote an agency relationship.
[32] See Re Marshall and Discrimination Commissioner (1996) 42 ALD 101 at 109-10 and the cases cited therein.
It is also appropriate to refer to the First NTMA itself (aspects of which are pleaded in each of the parties’ pleadings) which was negotiated and executed by both Quasar and Heathgate. In the identification of the parties at the commencement of the First NTMA, Quasar is described as “agent for and on behalf of the parties to the Four Mile Joint Venture”. Recitals M and R provide:
MQuasar, on behalf of the Four Mile Joint Venture, has on 4 June 2008 issued a notice pursuant to section 63M of the Mining Act in relation to the Current Applications listed in Item 2A of Annexure B.
RThe [Native Title] Holders and ATLA on the one hand, and Heathgate and Quasar on behalf of the Four Mile Joint Venture on the other, wish to conduct their relationship on a harmonious and mutual beneficial basis, and for this purpose have agreed to enter into this Agreement … .
Finally, I note that by cl 2.3 Quasar gave a warranty in the following form of its authority to enter into the First NTMA:
Quasar represents and warrants that it has full right and authority pursuant to the Four Mile Joint Venture to enter into this Agreement (as manager for and behalf of the Four Mile Joint Venture), and this Agreement is valid and binding and enforceable in accordance with its terms against Quasar (as manager of the Four Mile Joint Venture) and the parties to the Four Mile Joint Venture.
In summary, the JVA itself expressly contemplated Quasar acting for and on behalf of the joint venturers in the negotiation and execution of a native title mining agreement. The terms of the First NTMA indicate that Quasar was exercising, or purporting to exercise, that authority. That position is reflected in the parties’ pleaded cases. In particular both Quasar and Heathgate plead that Quasar entered into the First NTMA as agent for and on behalf of the joint venturers.
Alliance submitted, relying on the decision of Warren J in Yunghanns v Elfic Pty Ltd,[33] that it was required only to establish an arguable case of agency. Quasar, on the other hand, submitted that this aspect of the decision in Yunghanns was wrongly decided, and should not be followed. A determination on the basis of an arguable case would, it submitted, undermine the status of privilege as a fundamental and substantive common law right.
[33] [2000] VSC 113; (2000) 1 VR 92.
Heathgate put a related submission to the effect that the Court should not, on an interlocutory application, make a determination of the factual and legal matters in dispute. The submission was that those matters should be left for determination at the trial. Acceptance of this submission would mean that there could not be an interlocutory determination of issues of privilege in a case of the present kind. It would be only upon the judgment following a trial, or at least a trial of some of the issues, that the merit of the claimed privilege could be determined. The purpose of the disclosure would then be rendered nugatory. The course proposed by Heathgate is inconsistent with the practice of courts determining issues of privilege in interlocutory proceedings. I reject the submission of Heathgate.
The substantive factual and legal issue upon which the resolution of Alliance’s present application turns is that of whether or not Quasar, through the agency of Heathgate, acted as the agent of Alliance in the negotiation of the First NTMA. The material which I have just reviewed indicates that there is little dispute about this issue. As has been seen, each of Quasar and Heathgate plead that, in the negotiation and execution of the First NTMA, Quasar acted as the agent of Alliance. Accordingly, the decision on the present application does not turn on whether the relevant standard of proof is “reasonably arguable” or, in the context of interlocutory proceedings, on the balance of probabilities.
I consider it appropriate to conclude, for the purposes of determination of the present interlocutory application, that, in relation to the negotiation of the First NTMA, Quasar was acting on behalf of the joint venturers and, in that capacity, as agent of Alliance. As I have indicated, that conclusion is appropriate whether the requisite standard of satisfaction is “reasonably arguable” or, in the context of interlocutory proceedings, on the balance of probabilities.
I will address the consequences of this conclusion shortly. Before doing so, it is appropriate to address two other submissions.
Quasar contended that, as Alliance’s substantive plea in the proceeding was that it (Quasar) was not authorised to enter into the First NTMA, it could not rely upon the asserted relationship of agency to support its claim for production of the documents in issue. The submission in short was that it was not open to Alliance to rely on the very authority of Quasar which it impugns in the action as the source of its entitlement to production. In support of this submission Quasar referred to Commercial Union Assurance Co PLC v Mander[34] in which Moore‑Bick J held that it was not open to a party who has avoided a contract altogether to rely on that same contract as the basis for an assertion of common interest privilege.[35]
[34] [1996] 2 Lloyd’s Rep 640.
[35] Ibid at 647-8.
In my opinion, this submission of Quasar should be rejected. In the first place it overlooks that Alliance disputes only that Quasar had authority to enter into an agreement in the terms of the First NTMA, and not that it lacked authority for the entry into a native title mining agreement at all. Alliance has not disputed Quasar’s authority to engage in discussions and negotiations for the conclusion of a native title mining agreement. It is to be remembered that the documents which Alliance seeks to have produced relate, for the most part, to the period during which the First NTMA was being negotiated, a period during which Alliance does not dispute Quasar’s authority.
In any event, Quasar itself pleads the authority granted to it by cl 6.4 of the JVA as part of its counterclaim that Alliance breached the JVA by failing to facilitate the registration of the First NTMA by the Mining Registrar. By itself this circumstance operates to defeat Quasar’s submission.
Quasar and Heathgate also submitted that, if cl 6.4 did provide for Quasar to act as agent of the joint venturers, that agency was limited to an authority to “enter into such agreements and/or make such other arrangements” as it thought appropriate or necessary. The submission seemed to be that cl 6.4 did not include authority to discuss and negotiate the same matters with ATLA. This submission too appears to be inconsistent with Quasar’s own pleading. Its acceptance would also mean, rather surprisingly, that cl 6.4 was to be understood as authorising Quasar to enter into agreements which it was not authorised to negotiate. Such a construction would be unreasonable and should be rejected.
Agency Relationship and Joint Retainer
In relation to the first of the two alternatives identified by Sheller JA in Farrow Mortgage Services, Alliance contended that, once it be accepted that Quasar was acting on behalf of the joint venturers (and as agent for Alliance) in the negotiation of the First NTMA, the privilege attaching to its communications with legal advisors in relation to that negotiation was a shared privilege.
This followed, Alliance submitted, from the principle that any contract formed on a principal’s behalf by an agent with a third party is between the principal and the third party, and not between the agent and the third party.[36] The argument, as I understood it, was that when Quasar, as agent for the joint venturers, retained (through its agent Heathgate) legal advisors to further the purposes of the joint venture, the relevant retainer was between Quasar and Alliance, on the one hand, and the legal advisor, on the other.
[36] Scott v Davis [2000] HCA 52 at [228]; (2002) 204 CLR 333 at 408-9.
I do not accept this submission. It does not follow from the appointment of an agent to carry out some task that all contracts entered into by the agent which are directed to the fulfilment of that task are contracts which bind the principal. Agents may enter into contracts with third parties for the better achievement of their agency without binding their principals to those third parties.
Quasar and Heathgate relied upon affidavits of Mr Wedd and the lawyers from whom he had sought legal assistance. Mr Wedd deposed that he retained Ms Steed “on behalf of both Quasar and Heathgate” and requested that she “prepare a draft native title mining agreement … and assist in the negotiation of the terms of the NTMA with Johnston Withers” who were representing ATLA. Throughout the period in which the First NTMA was being negotiated he communicated with Ms Steed on behalf of both Heathgate and Quasar. He said that after Quasar (by his actions) retained Minter Ellison in late March 2009 “McDonald Steed’s role for Quasar was limited to negotiation of the NTMA with Johnston Withers”. Thus, in his affidavit of 21 March 2011, Mr Wedd said:
[45]Ewan Vickery and Kent Grey, both partners at Minter Ellison in Adelaide, were retained by Quasar in or around late March 2009 to provide legal advice to Quasar with respect to the drafting of the NTMA. I acted for Quasar when seeking and obtaining legal advice on these issues from Mr Vickery and Mr Grey.
[46]After Minter Ellison was retained by Quasar, McDonald Steed remained the principal lawyer negotiating the NTMA with Johnston Withers (ATLA’s lawyers) on behalf of both Heathgate and Quasar. At this time, McDonald Steed’s role in respect of Quasar was limited to representing Quasar in relation to finalisation of negotiations with ATLA (and Johnston Withers). McDonald Steed continued to advise Heathgate in relation to the drafting of the NTMA generally.
[47]In or about early April 2009, I informed Ms Steed that Minter Ellison had been retained by Quasar to advise it on the terms of the NTMA going forward, and that McDonald Steed would continue to be engaged by both Quasar and Heathgate to negotiate the terms of the NTMA with ATLA.
Mr Wedd also deposed that when he communicated with Ms Engström he did so “for and on behalf of Heathgate and/or Quasar” and that the legal advice which Ms Engström provided was “for and on behalf of Heathgate and/or Quasar.
Each of Ms Steed and Mr Grey deposed to the circumstances in which they came to be retained by Mr Wedd to provide legal advice and assistance. Each deposed to their respective beliefs that Mr Wedd had been seconded to, or was providing services to, Quasar. In addition, each deposed that they did not act for Alliance nor provide legal advice to it, whether in relation to the negotiation of the First NTMA or at all. Ms Steed deposed:
[10]In about September 2008, Mal Wedd asked me to prepare a draft Native Title Mining Agreement, on behalf of both Heathgate and Quasar (NTMA). Mal Wedd informed me that he was an employee of Heathgate who managed native title matters on behalf of Heathgate and Quasar.
…
[12]From about mid-October 2008 until 8 March 2009, I drafted and negotiated the terms of the draft NTMA with Johnston Withers, the solicitors for the Adnyamathanha Native Title Claim Group (ANTCG) and the Adnyamathanha Traditional Lands Association (ATLA). During this period I provided legal advice to Quasar and Heathgate about the terms of the NTMA and the negotiations with the native title claimants. I also provided legal advice to Quasar and Heathgate concerning requirements for registration of the NTMA, in accordance with the Mining Act.
[13]At no time during the drafting or negotiation of the NTMA did I receive any instructions from Alliance, nor did Alliance attempt to contact me at any time. I did not regard Alliance or the joint venture as my client and I regarded all communications I had with Quasar and Heathgate as confidential. I considered that both Heathgate and Quasar held privilege over such documents, and I was not able to provide them to Alliance, without specific instructions to waive Heathgate and Quasar’s privilege (which instructions were never provided).
[14]In or about early April 2009, I was told by Mal Wedd that Minter Ellison had been retained by Quasar to advise it in respect of the NTMA. Mal Wedd informed me that I would continue to be engaged by both Quasar and Heathgate to negotiate the terms of the NTMA with ATLA and to advise Heathgate on the drafting on the NTMA.
Mr Grey from the firm of Minter Ellison deposed:
[16]Minter Ellison was engaged by Quasar to review and advise Quasar on the draft NTMA, including the requirements of Part 9B of the Mining Act 1971 (SA) (Act) in respect of the NTMA.
[17]Minter Ellison was not engaged to negotiate the terms of the NTMA with ATLA and did not have any direct role in doing so. I was informed by Abigail Steed, and observed, that McDonald Steed McGrath, who had advised Quasar and Heathgate with respect to the NTMA prior to Minter Ellison’s engagement, continued to act for both Heathgate and Quasar in the negotiations with ATLA concerning the NTMA.
[18]Minter Ellison was not engaged to act for Heathgate and did not provide any advice to Heathgate with respect to the NTMA.
[19]Minter Ellison has never been engaged by, acted for, or provided advice to Alliance. To the best of my knowledge, Alliance has, at all material times, engaged the firm HWL Ebsworths and its South Australian Agents, Finlaysons to represent it with respect to issues concerning the NTMA and its interest in the Joint Venture. I have never communicated directly with Alliance. All communications I have had with Alliance on behalf of Quasar have been directed through Alliance’s solicitors.
…
[21]At no time did I consider that I acted for Alliance, or both joint venture parties jointly, nor that Alliance had any right to view or access any of the communications between Minter Ellison and Quasar. Alliance has never asked me to provide it with copies of any communications between Minter Ellison and Quasar, nor would I have done so had I been asked, except on express instructions by Quasar.

Finally, I note that Ms Engström has deposed to the advice requested of, and provided by, her to Quasar, or to both Quasar and Heathgate. Her affidavit includes the following:
As an in-house Attorney and General Counsel of General Atomics, my role extends to advising companies in the general Atomics group only. Neither I, nor any other member of the Law Department would provide advice to a company outside of the general Atomics group (such as Alliance). I created the above emails, and communicated the legal advice in those emails to Heathgate and Quasar, on the basis that the communications be kept confidential to Heathgate and Quasar. Similarly I received and treated the requests for legal advice referred to above on the same condition of confidentiality. …
This evidence indicates clearly enough that none of the lawyers considered, at the subjective level, that he or she was acting for, or providing advice to, a group of entities which included Alliance. On the contrary, each considered, at the subjective level that he or she was acting on behalf of, or providing advice to, only Heathgate and Quasar or, in some instances, to Quasar only.
These understandings of the lawyers and of Mr Wedd are not conclusive of the position. Whether or not a legal practitioner has “acted for” or was “retained by” a particular entity involves a conclusion of combined fact and law. It is probable that each practitioner was aware of Alliance’s role in the joint venture; aware that Quasar required the authority of Alliance in order to enter into a native title mining agreement which bound both parties to the joint venture; and aware that by the terms of the First NTMA Quasar would warrant its authority to enter into an agreement binding the parties to the JVA. However, the evidence of Mr Wedd and of the lawyers does not provide support for the proposition that Quasar (through Heathgate) retained either McDonald Steed or Minter Ellison in its capacity as agent of the joint venturers so as to bind both it and Alliance as principals to the respective retainers.
In these circumstances, I reject Alliance’s submission that the present circumstances are within the first of the two alternatives identified by Sheller JA in Farrow Mortgage Services.
Agency Relationship, Shared Interest and Duty to Disclosure
As previously noted, this alternative requires the Court to be satisfied that Quasar, being in a formal legal relationship with Alliance, had sought legal advice about a matter in which both Quasar and Alliance had a shared interest, in circumstances giving rise to an obligation by Quasar to disclose the content of its communications to Alliance.
Clearly enough the JVA gave rise to a formal legal relationship between Alliance and Quasar: as joint venturers and in Quasar’s role as manager of the joint venture. Further, Alliance had specifically authorised Quasar to enter into arrangements with native title claimants.
Quasar and Heathgate submitted that, even if it be accepted that in relation to the negotiation of the First NTMA, Quasar had acted as agent of the joint venturers, this did not give rise to any duty of disclosure with respect to the legal advice which Quasar, or its agent, had received. They emphasised that the relationship between Quasar and Alliance was contractual and governed by the terms of the JVA; that the JVA did not contain any provisions requiring Quasar to disclose the legal advice which it obtained; that the JVA (at least in their submission) did not give rise to fiduciary duties at all, let alone a fiduciary duty of disclosure; and that Quasar was entitled to obtain advice relating to the discharge by it of its obligations as manager without being required to disclose that advice to Alliance.
I have previously concluded that Alliance should not be permitted in the present application to re-agitate the claim of fiduciary duty (Ground 3), and accordingly it is not necessary to consider whether such a duty could give rise to a duty of disclosure in the present circumstances.
My conclusion that Quasar acted as agent for the joint venture in the negotiation of the First NTMA has the effect that several of the remaining submissions of Quasar and Heathgate on this aspect of the matter must fail. Their relationship is contractual but, at least in relation to the negotiation of a native title mining agreement, their contract establishes a form of agency. Both Quasar and Heathgate themselves accept that, in the negotiation of the First NTMA, Quasar did act as agent of Alliance. The relationship of agency by itself gives rise to a duty of disclosure. Documents brought into existence by agents during the course of, and for the purposes of, the agency are the principal’s documents and should be provided to the principal on request.[37]
[37] Leicestershire County Council v Michael Faraday & Partners Ltd [1941] 2 KB 205 at 216; Wentworth v De Montfort (1988) 15 NSWLR 348 at 353; Breen v Williams (1996) 186 CLR 71 at 88-9.
I did not understand Quasar and Heathgate to dispute that the communications with the respective lawyers related to matters in which Quasar and Alliance had a shared interest. Having regard to the content of the affidavit passages quoted earlier, such a submission would in any event have been difficult to sustain.
Accordingly, and subject to the point to be mentioned next, each of Quasar and Alliance are entitled to access to the documents which Quasar brought into existence, or received, in relation to its negotiation of the First NTMA on behalf of the joint venturers.
Quasar and Heathgate submitted that even if Quasar had acted on behalf of the joint venturers in the negotiation of the First NTMA, it did not follow that all or any of the legal advice in question had been sought by them in that capacity. Each was entitled, so they submitted, to obtain advice for their own assistance, including advice as to their own responsibilities to Alliance, in the case of Quasar, or to both Quasar and Alliance, in the case of Heathgate. In support of this latter position, Alliance and Heathgate referred to Chantrey Martin v Martin[38] in which the Court of Appeal said:
Even in the case of a solicitor there must, we should have thought, be instances of memoranda, notes, etc, made by him for his own information in the course of his business which remain his property, although brought into existence in connexion with work done for clients.[39]
[38] [1953] 2 QB 286.
[39] Ibid at 293. See also Wentworth v De Montfort (1988) 15 NSWLR 348 at 353.
I agree with this submission, so far as it goes. However, the evidence adduced by Quasar and Heathgate to which I referred earlier does not support the conclusion that Quasar (and Heathgate on Quasar’s behalf) sought legal advice for Quasar’s own purposes, as distinct from the purpose of the negotiation of the First NTMA on behalf of the joint venture. In fact evidence of this kind is, with one possible exception, remarkably absent. It is to be expected, for example, that if either Quasar or Heathgate had sought legal advice concerning Quasar’s own position or concerning the responsibilities or duties of Quasar under the JVA to Alliance in the negotiation of the First NTMA, this would have been clearly articulated in at least one of the affidavits. None of the affidavits of Ms Steed, Mr Wedd, Mr Grey or Ms Engström suggest that the legal advice in question was sought or given for some purpose other than that of pursuit of the joint venture.
By way of illustration, it is sufficient to refer only to the affidavit of Mr Grey in which he deposed to the purpose of particular communications. Those purposes included an explanation of amendments made to the draft NTMA, the seeking of information regarding the negotiation the NTMA, the provision of legal advice to Quasar regarding amendments to the draft NTMA following negotiations with ATLA, and the provision of advice to Quasar in respect of the requirements of Part 9B of the Mining Act in respect of the NTMA.
The fact that Quasar sought a contribution from Alliance to meet the costs of the legal advice from McDonald Steed supports the conclusion that the firm was retained for the purposes of the joint venture, and not for some private or individual purpose of Quasar. As noted earlier, after the date of the decision to mine (22 October 2008), Alliance became liable to pay 25 per cent of the costs incurred in connection with the joint venture. In the discharge of this liability Alliance has, amongst other things, paid 25 per cent of the fees charged by McDonald Steed in respect of their work since 9 November 2008. The fact that Quasar has claimed such payment indicates, consistently with the affidavits of Mr Wedd and Ms Steed, that McDonald Steed was retained for the purposes of the joint venture.
Alliance cannot rely on any such payment in respect of the fees of Minter Ellison. It accepts that it has not made any contribution to their fees.
The evidence does not disclose why Quasar has not sought a contribution from Alliance in respect of the Minter Ellison fees. One possible explanation is that Minter Ellison was retained to advise Quasar personally, and not for the purposes of the joint venture. However, as noted earlier, if this was the case one would have expected that at least one deponent would have said so. Neither
Mr Wedd, Mr Grey nor Ms Engström make any such claim. On the contrary, the passages in the affidavits of Messrs Wedd and.Grey to which I referred earlier make it plain that Minter Ellison was retained to advise Quasar on the draft NTMA and the requirements of Part 9B of the Mining Act.
No issue with respect to payment arises in relation to the advice provided by Ms Engström and her assistants.
I conclude therefore that Alliance does have a joint privilege with Quasar in respect of the communications by Quasar (through Heathgate) with McDonald Steed, Minter Ellison and Ms Engström and her assistants. Accordingly, I rule that neither Quasar nor Heathgate is entitled to withhold production of the documents recording communications in the period which concluded on 11 June 2009, the date of execution of the First NTMA.
Joint Privilege and Contribution to Costs
In these circumstances, it is not necessary to address separately Ground 7 of Alliance’s claim, namely, that the documents were not privileged from production to it because it had contributed to the cost of the legal advice in question. I have taken account of Alliance’s contribution to the costs of McDonald Steed in my consideration of the ground based on agency.
Waiver
Although strictly speaking it is not necessary for me to address Alliance’s claim of waiver, I will do so, in case this matter goes further.
Alliance contended, in the alternative, that even if the documents in issue had been otherwise privileged from coerced disclosure, that privilege had been waived by Quasar when it gave to PIRSA, on 7 April and 22 June 2009, certain of the advice given to it by Mr McDonald.
It seems that both before and after the execution of the First NTMA, officers within PIRSA were raising concerns with Mr Wedd about the prospect of Alliance not being a party to the First NTMA. In the light of those concerns, in March 2009 Mr Wedd sought advice from Mr McDonald at McDonald Steed on the question:
Does Alliance need to execute the Native Title Agreement on Beverley-Four Mile (Native Title Agreement) and is there any issues about registration of that agreement and Ministerial consent to enable the ML to be granted if Alliance is not a Party and has not otherwise given its consent?
In response, on 26 March 2009 Mr McDonald provided written advice to Mr Wedd to the effect that it was not necessary for Alliance to be a party to the First NTMA.
On 7 April 2009, in support of a submission that it was not necessary for Alliance to be a signatory to the First NTMA, Mr Wedd provided to PIRSA a copy of all but an inconsequential portion of Mr McDonald’s advice of 26 March 2009. Later, on 22 June 2009, Mr Wedd provided a complete copy of Mr McDonald’s advice of 26 March 2009 to PIRSA and at the same time said:
Note that Kent Grey and Ewan Vickery from Minters have also reviewed this advice and support it.
Each of Quasar and Heathgate have disclosed Mr McDonald’s letter of advice of 26 March 2009 as well as the two communications from Mr Wedd to PIRSA, and do not make any claim for privilege in relation to those documents.
Alliance’s claim is that the disclosure of Mr McDonald’s advice, together with the reliance on the support of Messrs Vickery and Grey for that advice, amounts to a waiver of the privilege which may otherwise have attached to all the communications with legal advisors concerning the preparation and execution of the First NTMA.
Waiver occurs when the holder of the privilege engages in particular conduct which is inconsistent with the maintenance of the confidentiality which the privilege is intended to protect:
What brings about the waiver is the inconsistency, which the courts, where necessary informed by considerations of fairness, perceive, between the conduct of the client and maintenance of the confidentiality; not some overriding principle of fairness operating at large.[40]
[40] Mann v Carnell [1999] HCA 66 at [29]; (1999) 201 CLR 1 at 13.
In the present case Mr Wedd’s disclosure to PIRSA of Mr McDonald’s advice of 26 March 2009 was clearly enough a waiver of the privilege which would otherwise have attached to that particular communication. The issue is whether the waiver went any further.
Quasar and Heathgate submitted that the question of whether Quasar’s waiver of privilege in the advice of 26 March 2009 amounted to an implied waiver of privilege in other communications is to be determined by reference to the test stated by the Court of Appeal in Victoria in British American Tobacco Australia Services Ltd v Cowell:[41]
A reference in one letter of advice to an earlier letter of advice does not expose the latter to scrutiny by the other party to litigation merely because legal professional privilege is waived in relation to the former: implied waiver is not so generous a doctrine. As we apprehend it, where legal professional privilege is waived in relation to one piece (or part) of advice, the privilege is impliedly waived in relation to another if – and only if – that other is necessary to a proper understanding of the first.[42]
They submitted that Alliance (which has the relevant onus) had not demonstrated that it was necessary for the other privileged communications to be produced in order that it could understand properly Mr McDonald’s advice of 26 March 2009.
[41] [2002] VSCA 197; (2002) 7 VR 524.
[42] Ibid at [121]; 564.
Alliance, on the other hand, submitted that the test to be applied was not so stringent. It referred to AWB Ltd v Cole (No 5)[43] in which Young J said that the Court of Appeal in British American Tobacco had expressed the position concerning waiver of associated material too narrowly.[44] Young J, relying on Attorney-General (NT) v Maurice[45] said that the test to be applied to determine the scope of any waiver of associated material is whether the material that the party has chosen to release from privilege represents the whole of the material relevant to the same issue or subject matter.[46]
[43] [2006] FCA 1234; (2006) 155 FCR 30.
[44] Ibid at [167]; 77.
[45] (1986) 161 CLR 475.
[46] [2006] FCA 1234 at [164]; (2006) FLR 30 at 76-7.
Like Young J, I consider that British American Tobacco may state the test too stringently, and in a way which is not consistent with High Court authority, in particular, Attorney-General v Maurice. As Mason and Brennan JJ observed in Maurice “the implied waiver inquiry is at bottom focused on the fairness of imputing such a waiver”.[47]
[47] (1986) 161 CLR 475 at 488.
In the present case, I do not consider that considerations of fairness require that the disclosure of Mr McDonald’s advice of 26 March 2009 should be regarded as impliedly waiving the privilege attaching to all communications between Quasar and Heathgate, on the one hand, and their legal advisors, on the other, in relation to the negotiation of the First NTMA. It is reasonable to suppose that many of the communications between Quasar and its legal advisors concerned aspects of the proposed First NTMA other than the identification of the proper parties. There is no unfairness involved in Quasar waiving its privilege on one topic but maintaining its privilege in relation to advice sought or received on other topics.
It could be said that the waiver in respect of Mr McDonald’s advice of 26 March 2009 involved an implied waiver of the privilege in relation to other communications concerning the same topic. Mr Wedd’s affidavit indicates that he had two or three communications with Mr McDonald before the latter finalised his advice on 26 March. However, I did not understand Alliance to make a submission, in the alternative, that there had been a limited waiver of this kind. Moreover, there is nothing on the face of Mr McDonald’s advice to indicate that it is incomplete, or capable of being understood only if the documents associated with it are provided. In these circumstances, I am not willing to conclude that there has been a waiver in relation to the privilege attaching to the communications concerning the request for, and receipt of, Mr McDonald’s advice of 26 March 2009.
I am not overlooking Mr Wedd’s statement to PIRSA that Messrs Vickery and Grey had reviewed Mr McDonald’s advice and agreed with it. However, the parties did not direct separate submissions to any waiver in relation to that particular communication. Further still, it is not possible to identify any one of the documents for which Quasar and Heathgate have claimed privilege as being one in which the agreement of Messrs Vickery and Grey with Mr McDonald’s advice was recorded.
In summary, I am not satisfied that Quasar’s use of Mr McDonald’s advice of 26 March 2009 carried with it an implied waiver of the privilege attaching to other communications between Quasar and its legal advisors in relation to the preparation of the First NTMA.
Communications after the Execution of the First NTMA
I turn to the five documents disclosed by Quasar and the one document disclosed by Heathgate bearing a date after the execution of the First NTMA on 11 June 2009. These documents should be considered separately as their very date indicates, or at least suggests, that the communications to which they relate did not concern the negotiation of the First NTMA.
In respect of four of the five documents disclosed by Quasar in this category, Mr Grey has deposed that their purpose was a request for legal advice regarding communications which Quasar proposed having with Alliance in relation to the NTMA. On its face, such a purpose was not a matter of shared interest of Quasar and Alliance and not a purpose of the joint venture itself. These four documents appear to be outside the scope of the joint privilege.
Heathgate has claimed privilege in respect of a file note of Ms Steed which in part records a conversation which she had with Mr Heithersay of PIRSA on 24 June 2009 and in part records her own views regarding the effect of certain provisions in the Mining Act. By 24 June, PIRSA had apparently raised its concerns that the First NTMA did not include Alliance as a party. It is reasonable to infer that Ms Steed’s file note was, in part, responsive to that concern and directed to the action which Heathgate should take to address the matters raised by the Department. Again, on the material presently available, I am not satisfied that the subject matter of that communication was a matter in which Alliance had a shared interest in the requisite sense.
I take the same view in respect of the fifth document for which Quasar claims privilege in this category. This is an email from Mr Grey to Ms Engström and others of 24 June 2009 and I am willing to infer that he had addressed the same subject matter as did Ms Steed’s file note.

Accordingly, I rule that neither Quasar nor Heathgate are required to disclose to Alliance the documents brought into existence after 11 June 2009 (being the last five documents in Schedule B to Quasar’s list and the last document in Schedule 2 to Heathgate’s list).
Conclusion
For the reasons given above I conclude that Alliance is entitled to production of all but the last five documents in Schedule B in Quasar’s list of documents and to production of all but the last document in the Amended Schedule 2 to the Heathgate list of documents.