Maronis Holdings Ltd v Nippon Credit Australia Ltd

[2000] NSWSC 836

CITATION:	MARONIS HOLDINGS LTD & ANOR v. NIPPON CREDIT AUSTRALIA LTD & ORS [2000] NSWSC 836 revised - 31/08/2000
CURRENT JURISDICTION:	EQUITY
FILE NUMBER(S):	SC 1946/94
HEARING DATE(S):	18/08/2000
JUDGMENT DATE:	24 August 2000
PARTIES :	Maronis Holdings Limited (First Plaintiff) Girvan Corporation (New Zealand) Ltd (In Liq.) (Second Plaintiff) Nippon Credit Australia Ltd (First Defendant)
JUDGMENT OF:	Bryson J at 1

COUNSEL :	G. Kennett for Plaintiffs F. Douglas QC/Parker for First Defendant
SOLICITORS:	Henry Davis York for Plaintiffs Allen Allen & Hemsley for First Defendant
CATCHWORDS:	PRACTICE and PROCEDURE - legal professional privilege - discovery documents produced on subpoena - whether privilege waived by commencement of related proceedings - whether waiver of privilege imputable to related plaintiff.
LEGISLATION CITED:	Evidence Act 1995 s 119 Supreme Court Rules Pt 23
CASES CITED:	Akins v Abigroup (1998) 43 NSWLR 539 Ampolex Ltd v Perpetual Trustee Co (Canberra) Ltd (1995) 35 NSWLR 405 Attorney-General for the Northern Territory v Maurice (1986) 161 CLR 475 Benecke v National Australia Bank (1993) 35 NSWLR 110 Farrow Mortgage Services Pty Ltd v Webb (1996) 39 NSWLR 601 Goldberg v Ng (1996) 185 CLR 83 Mann v Carnell (1999) 74 ALJR 378 Standard Chartered Bank v Antico (1995) 36 NSWLR 87 Telstra Corp v BT Australasia (1998) 85 FCR 152 Thomason v Campbelltown Municipal Council (1930) 39 SR(NSW) 347
DECISION:	Claim of privilege from inspection of documents - not allowed.

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BRYSON J.

1999

1946/94 MARONIS HOLDINGS LIMITED & ANOR v.

NIPPON CREDIT AUSTRALIA LIMITED & ORS

JUDGMENT

1 HIS HONOUR: This judgment deals with the application of the first defendant Nippon Credit for access to and inspection of documents produced under subpoena by the Managing Partner, Freehills Lawyers. The subpoena required production of the following documents: “Freehills files (reference DJH.MTA.31F) regarding proceedings in the Supreme Court of New South Wales, Number 2023 of 1990, between Maronis Holdings Limited and Nippon Credit Australia Limited.” The subpoena was issued by the first defendant on 12 July 2000 and returnable on 17 July 2000. Freehills complied by lodging with the Exhibits Clerk several boxes of documents. Early in the hearing counsel for Nippon Credit applied for leave to inspect the documents, and I was told on a number of occasions that the question of leave to inspect was under discussion. No agreed position emerged and the application for inspection was argued on Friday 18 August 2000. 2 In an earlier judgment in these proceedings on 9 March 2000 ([2000] NSWSC 138) at paras 15-20 I considered the powers and the practice of this Court with respect to allowing inspection of subpoenaed documents. To epitomise the practice, the Court allows a party to inspect documents produced on subpoena if it appears that there is a legitimate forensic purpose for the party to inspect them. The nature of the issues, both on the pleadings and as they appear from the conduct of the hearing before me, shows that Nippon Credit and the other parties to this litigation have a legitimate forensic purpose for inspecting documents within the description in the subpoena. Resistance to inspection was based on a claim of legal professional privilege, which was answered by the first defendant’s claim that the first plaintiff Maronis Holdings Limited had waived privilege. 3 At an earlier stage and as a step in the conduct of proceedings 1746 of 1996, in which Maronis Holdings Limited has sued the partners of Freehills, solicitors representing Freehills produced a draft list of the contents of the files consisting of 461 documents; the documents produced on subpoena appear from preliminary inspection to be the documents in this part of the discovery in proceedings 1746 of 1996, consisting of a legal file containing file notes, letters between solicitors representing the various parties, briefs to counsel, advice from counsel, draft pleadings and other materials which usually constitute a solicitor’s file in a litigated matter. 4 The description of documents in the subpoena is itself enough to indicate that it is likely that documents which are the subject of legal professional privilege are included in the boxes of documents produced by Freehills; it also seems likely that there are many others which are not. When the question of inspection was argued before me the plaintiffs and those representing them had not inspected in detail the contents of the boxes and were unable to identify particular documents to which a claim of privilege applied or to eliminate others to which it did not apply. It seems to me that identifying the documents to which the claim applies is a necessary step for giving effect to my decision. It is also necessary to identify any documents in respect of which there is a claim for privilege by the second plaintiff Girvan Corporation (New Zealand) Limited which plaintiffs’ counsel contended would not to be affected by any waiver. 5 The law of legal professional privilege for this purpose is the general law, as the Evidence Act 1995 and particularly s 119 have not been made applicable by Rules of Court to client legal privilege against inspection of documents produced on subpoena. The Evidence Act 1995 has been made applicable to the inspection of documents produced on discovery by Amendment 335 which introduced into Pt 23 r 1(c) the definition of “privileged document” and made related amendments to Pt 23 in its earlier and later forms. (The earlier Pt 23 is applicable to discovery in these proceedings which were commenced before 1 October 1996). The origin of the privilege in the common law and not in s 119 of the Evidence Act 1995 has no practical outcome for these reasons. 6 Counsel for the Seventh Defendants Messrs Clayton Utz informed me that the plaintiffs have accepted that if an order for access is made in favour of Nippon Credit in such a way that Nippon Credit is free to use the Freehills documents or some of them then the Seventh Defendant would also be entitled to access to those documents. Counsel for Mr Ambler the Fourth Defendant contended that if Nippon Credit is given access to the documents he also should be entitled to access; however I was not told that the plaintiffs accepted that this is so. In my view, if leave to inspect documents is granted to Nippon Credit it should also be granted to other defendants and cross-defendants who apply. 7 In support of the claim of waiver counsel for Nippon Credit tendered a bundle of documents identified as “Solicitors Files: Discovery Issue”. The bundle includes pleadings and a letter already in evidence in these proceedings, of which I should take notice, four letters between solicitors for the parties relating to the question of inspection and a copy of an affidavit of Clive Currie dated 21 July 2000 which was filed on behalf of the plaintiffs in these proceedings but has not been read. I was reluctant to mark the bundle as an exhibit for fear of confusion with exhibits on the principal issues, but I treat it as an exhibit in the interlocutory application. 8 In proceedings 1746 of 1996 Maronis Holdings sues the partners of Freehills and alleges a number of breaches of contractual duty and duty of care in tort in respect of the conduct of proceedings 2023 of 1990 by Freehills, on behalf of Maronis Holdings; Nippon Credit was the defendant in those proceedings. Freehills have denied those allegations in their Defence, and have brought proceedings 2363 of 2000, claiming contribution to any damages which it may be decided that they are liable to pay against all the defendants in the present proceedings including Nippon Credit, and also Mr Boscawen, who at the time of the events in 1989 was an officer of Girvan Corporation (New Zealand) Limited and had a significant part in the relevant events. Issues of res judicata and Anshun estoppel have been raised in Nippon Credit’s Defence in the present proceedings based on the manner of conduct of the 1990 proceedings, issues raised and determined in those proceedings and issues which it is alleged should have been raised and determined in those proceedings. Interlocutory decisions in the present proceedings have limited the grounds on which Maronis Holdings is permitted to attack the mortgage which it granted on 1 July 1989. Nippon Credit particularly referred to para 9(f) in the Reply to the Defence of the first defendant to the Fourth Further Amended Statement of Claim, which was filed early in July 2000. The Reply included the following:

9. In further answer to para 17 of the Defence the plaintiffs say that:

…

(f) In negotiating the consent orders neither Maronis or its legal representatives understood that Maronis would be foregoing the right to advance contentions other than that advanced in relation to s 512; …

In the Amended Reply filed on 18 July 2000 subpara 9(f) refers only to what Maronis understood and omits the reference to its legal representatives.

9 Nippon Credit seek to rely on some statements in the affidavit of Mr Currie of 21 July 2000, filed for the plaintiffs. This affidavit was not read in the plaintiffs’ case in chief, which has been closed. I was told that it may be read in the plaintiffs’ case in reply; however the hearing has not yet reached the case in reply and nothing has happened which has committed the plaintiffs to reading Mr Currie’s affidavit. In relation to waiver by use of affidavit material, the holding of the Court of Appeal in Akins v. Abigroup Limited (1998) 43 NSWLR 539 on the derivative operation of provisions of the Evidence Act should be understood to have been overruled by Mann v. Carnell (1999) 74 ALJR 378; 168 ALR 86. The overruling has no adverse implication for the persuasive force of the observations of Mason P on the position at Common Law in Akins (at 552-553); if anything their importance is enhanced. 10 Mason P’s observations strongly support the view that legal professional privilege in respect of documents is not waived by referring to them in or producing them with a witness statement or an affidavit which is filed and brought to the knowledge of the opponent in accordance with rules of court or practices which require that they be filed and served before they are read in evidence, and that unless and until they are read in evidence there is no waiver. In my view a similar approach should be taken to the use of Mr Currie’s affidavit where it is asserted that the manner in which the plaintiffs have conducted the proceedings and the facts which they have brought forward show that they have waived privilege with respect to the Freehills documents. I do not regard merely obtaining and filing Mr Currie’s affidavit as a use of the material in it from which waiver should be imputed. In my opinion the plaintiffs’ conduct in obtaining and filing the affidavit cannot be the basis of a finding of waiver of privilege; the position may be different if the plaintiffs at some stage choose to read the affidavit in evidence. 11 Nippon Credit’s counsel submitted that by commencing the 1996 proceedings against Freehills, Maronis Holdings has waived any privilege for documents in the file. In support of this counsel referred to Benecke v. National Australia Bank (1993) 35 NSWLR 110. In that case the plaintiff in her originating process and in evidence alleged that prior litigation had been compromised by lawyers contrary to her express instructions that the matter proceed to trial. At the time when the question of legal professional privilege was considered the plaintiff had filed her own affidavit in which she made the allegations. Clarke JA, with whom Gleeson CJ and Sheller JA agreed, stated the position thus (at 116):

In her amended summons the appellant claimed that her case had been settled without her consent and added a contention that the lawyers on both sides were apparently acting in concert. In her affidavit in support, sworn on 23 October 1992, she unequivocally asserted that Ms Beazley had compromised the proceedings contrary to her express instructions that the matter proceed to trial. It is readily apparent, therefore, that if Ms Beazley had been unable to give evidence it would have been necessary for the judge to decide the case upon the uncontradicted evidence of the appellant. The injustice of such a situation needs no emphasis from me.
However, the law did not require the judge to act in that way. The appellant, in making her assertions that her lawyers compromised the proceedings without her consent, opened up the question of the authority of the lawyers to act as they did and thereby waived her privilege. I take this to be clear as a matter of legal principle on grounds of basic fairness.
Although it might have been thought that the position was so clear that there would be no authoritative decision which was helpful on the point there are in fact dicta to be found in the cases which demonstrate the fallacy of the argument. In Thomason v. Campbelltown Municipal Council (1939) 39 SR (NSW) 347; 56 WN (NSW) 108, Jordan CJ said (at 358-359; 111):
“… Hence, in effect, one of the issues in the case was what advice if any the plaintiff had received from her legal advisers as to her alternative legal rights. In these circumstances, since the fact and nature of the advice is an issue in the case, I am of opinion that privilege cannot be raised to prevent the proof of the advice. The position is analogous to that which arises in a suit in Equity to set aside a transaction on the ground of undue influence. In such a suit, it has always been the practice for the defendant to cross-examine the plaintiff with a view to proving that the plaintiff had competent legal advice when he entered into the transaction, and to call and examine the legal adviser if he is available.”
Again, in Attorney-General for the Northern Territory v. Maurice (1986) 161 CLR 475, reference was made to the passage in Wigmore, Evidence in Trials at Common Law (1961) vol 8, par 2327 at 636, to this effect:
“… (W)hen his conduct touches a certain point of disclosure, fairness requires that his privilege shall cease whether he intended that result or not. He cannot be allowed, after disclosing as much as he pleases, to withhold the remainder.”
This principle of waiver has been applied in a number of cases in the United States in which an attorney had been charged by his client, either directly or indirectly, with fraud or other improper or unprofessional conduct: see Popovitch v Kasperlik 70 F Supp 376 (1947) at 381; Wigmore (1961) vol 8, par 2328, at 638.
It follows that I am of the opinion that the appellant waived her legal professional privilege and there could be no objection to the evidence of Ms Beazley or the appellant’s other legal representatives on the ground of privilege.

12 Gleeson CJ, who agreed, observed (at 111): “In the present case, however, the appellant herself lifted the veil of secrecy by giving her version of the communications.” 13 The 1990 proceedings were conducted without pleadings. In the present case it is material to the defences relating to res judicata and Anshun estoppel to establish by evidence what was put in issue, what could be put in issue in the 1990 proceedings, and why some claims were not brought forward. It will be relevant to Maronis Holdings’ reply to Nippon Credit’s reliance on these defences to show by evidence what arrangements relating to the definition of issues Freehills made and were authorised to make on their behalf. The presentation of evidence relating to the alleged Anshun estoppel will make relevant the instructions given by Maronis Holdings to its lawyers, and the circumstances in which those instructions were given, including subjective circumstances which led to the selection of grounds on which the proceedings would be based, and to other grounds not being adopted. 14 The terms of para 9(f) of the Reply are in my opinion a clear illustration that by resisting the Defence the plaintiffs have necessarily opened up the relevance of circumstances in which some contentions were advanced in the 1990 proceedings and others were not, including the terms of communications between the plaintiffs and their lawyers which would otherwise be privileged. In this regard the amendment of para 9(f) to omit reference to the plaintiffs’ lawyers is of no real importance; in relation to a contention that Nippon Credit’s Defence is unconscionable, the knowledge and conduct of persons whom the plaintiffs allowed to manage their affairs, in this case their lawyers, is necessarily open to consideration, both as to what in fact was done and also as to the reasons for doing what was done. This is so whether or not the pleading includes express reference to the lawyers. The position is analogous to the position referred to by Jordan CJ in the passage in Thomason’s case set out by Clarke JA; where it is sought to set aside a transaction on the ground of undue influence it has always been the practice for the defendant to cross-examine the plaintiff with a view to proving that the plaintiff had competent legal advice. 15 It is of course very unusual for an express or intentional waiver of privilege to be followed by any judicial adjudication on waiver of privilege. Judicial consideration is usually required only where it is said that an intentional waiver should be imputed to a party or should be taken to be implied. The authoritative decision on implied waiver is that of the High Court in Attorney General for the Northern Territory v. Maurice & Ors (1986) 161 CLR 475. I particularly refer to the judgment of Gibbs CJ at (481) and to the passage:

The decisions in which this question has been considered seem to me to be particular applications of the rule that in a case where there is no intentional waiver the question whether a waiver should be implied depends on whether it would be unfair or misleading to allow a party to refer to or use material and yet assert that the material, or material associated with it, is privileged from production.

16   See too Mason and Brennan JJ at 487 and 488 and their statement (at 488):

Hence, the implied waiver inquiry is at bottom focused on the fairness of imputing such a waiver;

and Deane J (at 493)

Thus, ordinary notions of fairness require that an assertion of the effect of privileged material or disclosure of part of its contents in the course of proceedings before a court or quasi-judicial tribunal be treated as a waiver of any right to resist scrutiny of the propriety of the use he has made of the material by reliance upon legal professional privilege.

17 In Standard Chartered Bank v. Antico (1995) 36 NSWLR 87 at 94-95 Hodgson J stated the principle in this way.

I think it would be consistent with Attorney-General for the Northern Territory v Maurice to formulate the principle in Thomason in this way. If a party, by pleadings or evidence, expressly or impliedly makes an assertion abut the content of confidential communications between that party and a legal adviser, then fairness to the other party may mean that this assertion has to be taken as a waiver of any privilege attaching to the communication.

18 I respectfully adopt this formulation. See too Ampolex Limited v. Perpetual Trustee Co. (Canberra) Limited (1995) 35 NSWLR 405 at 411. Telstra Corporation v. B.T. Australasia (1998) 85 FCR 152 at 167-168 (Branson and Lehane JJ) may state the principle more broadly. 19 The Telstra case was a decision on the Evidence Act (Cth), not on the common law position. Notwithstanding the respect which should be accorded to a decision of the Full Court of the Federal Court on a matter relating to the Uniform Evidence Acts, the present proceedings are not affected by that Act and there is a clear basis in authority in New South Wales under the general law, including the decision of Hodgson J, for the view which I follow. 20 The effect of commencing the 1996 proceedings must be considered in the context of the controversy and litigation of which the proceedings are part; without the context it could not be concluded that privilege was waived simply by commencing proceedings and claiming, as against the lawyers involved and no other person, that there had been breaches of duty on the part of those lawyers. However, in the context of the whole controversy, including the 1990 proceedings and the present proceedings commenced in 1994, which encompass allegations that the financier, the solicitors who acted or purportedly acted for the plaintiffs on the lending transaction and five directors or officers of the plaintiffs are liable to the plaintiffs, bringing proceedings against Freehills over the conduct of the 1990 proceedings made it probable that those persons or some of them would become the subject of claims for contribution, as indeed they have been. The plaintiffs could, if they had decided to sue Freehills at the time of commencing the 1994 proceedings or at an early stage in those proceedings, have joined Freehills as defendants. The course which they chose of suing Freehills in 1996 produced the likelihood that the contribution of the defendants in the 1994 proceedings and of Freehills to the alleged losses of the plaintiffs would become contentious. 21 In this regard I was referred to some observations in Goldberg v. Ng (1996) 185 CLR 83 at 98, regarding imputed waiver where there are two or more distinct proceedings which are related; that appears to me to be the present position. By bringing the 1996 proceedings the plaintiffs set off a chain of claims and litigation which was fairly certain to lead as it has in fact led to involvement of a number of parties other than the plaintiffs themselves and their former lawyers, and to the need to establish all the circumstances of decisions relating to the conduct of the 1990 proceedings for the purpose of reaching any conclusions about causation of loss and contribution. 22 The connection between the allegations in the 1996 proceedings and Freehills’ allegations in the 2000 proceedings was referred to in argument as “the circle”. The plaintiffs’ counsel contended that by the time the circle came back the issues and the parties had changed to such a degree that there was no implied waiver. I have not accepted that argument in view of what should be regarded as the inevitability that the circular course would be followed once the plaintiffs commenced the 1996 proceedings. 23 In relation to damages it seemed to me, as I observed during the hearing, that the claims for damages made by the plaintiffs in the 1994 proceedings might well have opened up examination of the facts relating to the constitution of the 1990 proceedings and the manner in which they were conducted as relevant to the causation of loss; a particularly clear illustration of that possibility is that the plaintiffs claimed the legal costs of the 1990 proceedings as part of their claims for damages in the 1994 proceedings. This claim on its face extends both to costs incurred by the plaintiffs to their own lawyers, and costs which the plaintiffs were required to pay under costs orders. (In this regard I was told by the Seventh Defendant’s counsel that the claim for costs is no longer pressed by the plaintiffs as against the Seventh Defendants. However there was no indication that the claim for costs as damages has otherwise been abandoned). It appears to me that the claim that costs be included in the damages necessarily opens up the issue whether the costs were reasonably incurred; at least by implication the plaintiffs must allege that they were reasonably incurred, which brings the circumstances which led to their being incurred within the area of facts which in fairness should be open to examination. 24 Counsel for Nippon Credit also relied on the terms of para 3 of the affidavit of Maria Occhiuto sworn on 28 August 1991 in proceedings in the High Court of New Zealand between Nippon Credit as plaintiff, Girvan Corporation (New Zealand) Limited as defendant and counter-claim plaintiff, and Maronis Holdings Limited as second counter-claim plaintiff. That paragraph dealt with events at an interlocutory hearing before McLelland J in the 1990 proceedings which were said to have included a concession by Maronis Holding’s counsel about what was the sole point in those proceedings. In my opinion the use made of that part of the affidavit does not of itself constitute a ground on which waiver of privilege should be imputed to the plaintiffs, either generally or in respect of some narrowly defined range of facts relating to that interlocutory application and the concession alleged to have been made. I see no necessary involvement of the basis in instructions and advice for counsel’s statement to McLelland J in what was put forward in that affidavit. 25 Thus far these reasons deal with matters which were argued before me on Friday 18 August. When on 21 August I told the parties that I had decided, for reasons to be published later, that privilege had been waived by Maronis Holdings and that inspection should be allowed, counsel for the plaintiffs recurred to a possibility, which he had mentioned in argument on 18 August, that there may be documents among those produced by Freehills which relate only to the New Zealand proceedings, or to other later legal business, and not to the 1990 proceedings. Production of such documents would be excessive to the call in the subpoena which expressly calls for documents relating to the 1990 proceedings. I then told counsel that the plaintiffs should identify any documents for which this contention was made, and on 22 August counsel produced three volumes of documents which have been separated from the documents produced on subpoena by Freehills, and claimed legal professional privilege against their being inspected. As I announced on 23 August I inspected these documents and decided that they should not be inspected by other parties. My inspection was not rigorous, and I may permit a lawyer representing the First Defendant to inspect them or some of them, after giving undertakings limiting the use which may be made of any information contained in them. If the First Defendant desires to take this course I will re-open my consideration. 26 On 21 August counsel for the plaintiffs also contended that the documents produced may include documents in respect of which Girvan New Zealand which was not a party to the 1990 proceedings, is entitled to legal professional privilege. The possibility that there may be such documents was the subject of some submissions on 18 August. After I allowed an opportunity for further inspection, plaintiffs’ counsel contended that four of the documents produced fell into this category and claimed legal professional privilege of Girvan New Zealand against their inspection. Counsel identified these documents by their numbers in the List of Contents of Files annexed to the affidavit of Susan Lever in support of the claim for privilege; and produced a copy of the list with markings indicating what claims were made. In the marked list (Interlocutory Ex X), documents for which no claim for privilege was pressed having regard to the decision which I announced on 21 August bear a distinct mark; the small number of documents for which it is conceded that there never was a privilege claim are also indicated, and documents for which a privilege claim is still maintained are indicated with the letter “p”. 27 The claim of privilege of Girvan New Zealand related to documents numbered 9, 15, 18 and 422. I have inspected those documents. Documents 9 and 15 are letters from Shanahan Partners, barristers and solicitors in Auckland New Zealand, to Messrs Freehill Hollingdale and Page dated 9 and 19 March 1990 which in effect refer Girvan New Zealand and Maronis Holdings to Freehills for advice and action in New South Wales. The letter of 9 March 1990 contains a statement that Shanahan Partners acted for Girvan New Zealand, and its contents clearly show contemplation that Freehills would act in the interests of Maronis Holdings as well. The same contemplation is even clearer from the terms of the letter of 19 March 1990. Document 18 is a Memorandum dated 21 March 1990 from one solicitor in the office of Freehills to another listing and reviewing possible causes of action and further steps and information. Document 422 is a bundle of handwritten memoranda containing a miscellany of facts, matters for inquiry and observations on facts known. The terms of all these documents show more or less distinctly that they were prepared on the understanding that Freehills were to act or acted on the instructions of and in the interests of both the plaintiff companies, and not solely in relation to Maronis Holdings, the focus of attention being the prospects of attacking the mortgage and other obligations which Maronis Holdings had incurred. The position taken was that it appears from these documents that Girvan New Zealand as well as Maronis Holdings was a client of Freehills in 1990, and that any waiver of legal professional privilege would be ineffective unless it was a waiver made by both of them. 28 It is plain not only from the terms of the documents but from the whole circumstances of the litigation which have become known to me during the lengthy hearing thus far that the first and second plaintiffs acted then and at all times ever since in a very close association of action and interest; they have always had the same lawyers to represent them, and Maronis Holdings is indirectly the wholly owned subsidiary of Girvan New Zealand. They have been very closely associated in the conduct of all legal business known to me relating to the controversy. Girvan New Zealand is not a party to the 1996 proceedings against Freehills, but since 1994 until the present has at all times been closely associated, and practically identified with Maronis Holdings in the conduct of the present litigation. 29 While it is easy enough to recognise the very close association between the parent company and its subsidiary where the parent company in effect brings the subsidiary with it to lawyers who are to act for both of them and arranges for the lawyers to act for the subsidiary, it is not easy to give the association any well-known legal characterisation. What has taken place is very like a situation of agency where Girvan New Zealand acted on behalf of Maronis Holdings in taking the controversy to Freehills in 1990 and conveying instructions to them; yet it is highly unlikely that an actual relationship of agency was created and there is no evidence of such an agency; the strong interest of Girvan New Zealand in extricating Maronis Holdings from its position is a sufficient explanation of what took place without supposing that there was an actual conferral of agency authority. 30 Plaintiffs’ counsel referred me to the consideration of joint privilege and waiver in the judgment of Sheller JA in Farrow Mortgage Services Pty Ltd (in Liq) v. Webb & Ors (1996) 39 NSWLR 601, particularly at 608. Justice Sheller first considered the privilege position where one of the group of persons who are in a formal legal relationship communicates with a legal adviser about a matter in which the members of the group share an interest; his Honour gave the examples of one partner communicating about the affairs of the partnership and one trustee communicating about the affairs of the trust, and said of persons in that position that their privilege was one inseverable right. His Honour said “Logically the joint nature of the privilege means that all to whom it belongs must concur in waiving it.” Justice Sheller distinguished from joint privilege circumstances where parties have a shared or similar interest in the subject of communications between one or more of them and a legal adviser and observed “… disclosure amongst persons with a common interest, as it has been described, need not result in a waiver of privilege by the party making it.” 31 The present facts do not fit neatly within either of the categories stated by Sheller JA but more closely resemble the first category of joint privilege. As his Honour observed, logically the joint nature of the privilege means that all to who it belongs must concur in waiving it. In my view this observation should not be understood to deal exhaustively with the circumstances in which waiver can take place, because it is to be understood, in cases of implied waiver, which are the cases usually encountered, that intention and concurrence in intention to waive are not necessary, and that, echoing the words of Gibbs CJ in Attorney-General v. Maurice (at 481), where there is no intentional waiver the question whether a waiver should be implied depends on whether it would be unfair or misleading to allow a party to assert that material is privileged from production. The acts from which I have concluded as against Maronis Holdings that a waiver should be implied are not all acts by or on behalf of Girvan New Zealand and did not take place in circumstances in which it could be found that Girvan New Zealand intentionally concurred in waiving a joint privilege. Yet the association between the two in their conduct of legal business in relation of the controversy is close, indeed complete, and has been so close since March 1990 that they should not in my opinion be considered separately when deciding whether it would be unfair or misleading to allow the privilege to be asserted. In my opinion I should not allow the claim that Documents 9, 15, 18 and 422 should not be inspected because of legal professional privilege.

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Last Modified: 09/27/2000