Allstate Explorations NL & 2 Ors v Beaconsfield Gold NL & 2 Ors

2 With no objection from the Defendants, the Plaintiffs have, by Notice of Appeal dated 1 June 1999 re-stated the questions for separate determination with some refinements. They have for the first time, re-stated the last two questions by reference to six factual statements in Schedule B. These the Plaintiffs contend could not be the subject of any bona fide dispute, and rely inter alia on an affidavit of John Wood dated 1 June 1999. In relation to those factual statements, the Appellants rely upon s82 of the Supreme Court Act 1970 (NSW) and seek the Court's exercise of discretion under s190(3) of the Evidence Act 1995 (NSW). That discretion under s190(3) of the Evidence Act 1995 arises in a civil proceeding where "the matter to which the evidence relates is not genuinely in dispute", or where otherwise application of the relevant provisions "would cause or involve unnecessary expense or delay". Section 82 of the Supreme Court Act is to similar effect. The Defendants, while not objecting to these refinements of the Plaintiffs' case, take issue with the Plaintiffs' contentions in their appeal. 3 For convenience, I set out below the relevant schedules containing the questions sought for separate determination and the statements of fact said not to be genuinely in dispute: SCHEDULE "A" - QUESTIONS FOR SEPARATE DETERMINATION The following questions are for separate determination: 1. Whether, as a matter of construction, a 2% Management Fee under clause 2.05 of the Beaconsfield Management Agreement is within the meaning of 'costs' in clause 11.3 of the Beaconsfield Mine Joint Venture Agreement (the "BMJVA"). 2. Whether, as a matter of construction, the marking up of an employee's fee determined on a time basis for each employee of any company related to the Manager as are employed on the Project in an amount not exceeding the formula in Item 17 of the Schedule to the Beaconsfield Management Agreement is within the meaning of 'costs' in clause 11.3 of the BMJVA. 3. Whether, as a matter of construction, a program and budget approval in accordance with Part 10 which was calculated to include a 2% Management Fee under clause 2.05 and the marking up of an employee's fee determined on a time basis for each employee of any company related to the Manager as are employed on the Project in an amount not exceeding the formula in Item 17 of the Schedule to the Beaconsfield Management Agreement is binding upon the joint venturers and on the Manager under clause 10.5 of the BMJVA and is a decision binding upon the Joint Venturers pursuant to clause 7.2 of the BMJVA. 4. Whether, in the circumstances as described in schedule B, as a question of law, the Manager could be subject to any fiduciary duty as alleged in the pleadings in carrying out joint venture activities in accordance with programs and budgets approved by the Management Committee under Part 10 of the BMJVA. 5. Whether, in the circumstances as described in schedule B, as a question of law, the marking up of an employee's fee determined on a time basis for each employee of any company related to the Manager as are employed on the Project, or engaging retaining or paying such an employee, in an amount not exceeding the formula in Item 17 of the Schedule to the BMJVA could be a breach of the obligation under clause 2.01(c) of the Beaconsfield Management Agreement." SCHEDULE "B" 1. The second and third plaintiffs and the defendants are parties to the Beaconsfield Mine Joint Venture Agreement ("BMJVA"). 2. The terms of the BMJVA are set out in Exhibit JCW 1 to the affidavit of John Charles Wood sworn 9 July 1998 and in annexure A to the affidavit of John Charles Wood sworn 1 June 1999. 3. Allstate Explorations NL is the Manager of the Beaconsfield Mine Joint Venture (the "BMJV") and is bound by the terms of the BMJVA. 4. All cash calls made during the period 1 May 1994 to date by the first plaintiff as Manager of the BMJV were made in accordance with a programme or budget approved by the Management Committee. 5. The making of the said cash calls by the Manager was done in the course of carrying out Joint Venture activities. 6. A second amended cross-claim has been filed alleging certain fiduciary duties are owed by the Manager as pleaded, and which are denied by the plaintiffs."

4 The Master's determination therefore arises as an exercise of discretion. Furthermore, it is reached in a matter of practice and procedure, where the trial court's determination ordinarily prevails: Do Carmo v Ford Excavations Pty Ltd (1981) 1 NSWLR 409 at 420-421. Moreover, identification of separate questions is by way of exception to the normal rule requiring all issues to be tried together. 5 As to overturning such an exercise of discretion, Kirby P (as he then was) in Golosky v Golosky (NSWCA, 5 October 1993, unreported) at 13 (approved by the High Court in Singer v Berghouse (1994) 181 CLR 201 at 212) emphasises the need for appellate restraint: "Unless appellate courts show restraint in disturbing the evaluative determinations of primary decision-makers they will inevitably invite appeals to a different evaluation which, objectively speaking, may be no better than the first. Second opinions in such cases would be bought at the cost of diminishing the finality of litigation in a troublesome area and, sometimes at least, with a burden of costs upon the estate which should not be encouraged."

6 More specifically, Kirby P said in Morrison v Judd (NSWCA, 10 October 1995, unreported) with whom Meagher and Powel JJA concurred (at 6): "… It is self-evident that, in appeals of this character within the Supreme Court, it cannot have been Parliament's intention that one member of the Supreme Court (a single Judge) should simply substitute his or her own opinion on a discretionary decision concerning a matter of practice for that earlier determined by another member of the Supreme Court (a Master). If this were the principal of appellate review, few cases would conclude at a Master. Every contested case where the party had "a long pocket" would be taken for re-determination by a Judge." [emphasis supplied]

7 There is thus a substantial onus upon the Appellant in seeking to overturn such a decision simply because of the nature of the decision appealed against. But in any event, appeal or not, there must be a high level of confidence that ordering separate questions satisfies the stringent requirements for doing so. These requirements are conveniently set out by Giles CJ Comm D in Tallglen Pty Ltd v Pay TV Holdings Pty Ltd (1996) 22 ACSR 130 at 141-2: "Part 31 r2 of the rules empowers the court to make orders for the decision of any question separately from any other question, whether before, at or after any trial or further trial in the proceedings, and for the statement of a case and the question for decision. In the ordinary course all issues in proceedings should be decided at the one time , but separate decision of a question may be appropriate where, for example, the decision of the question is critical to the outcome of the proceedings and (at least if decided in one way) will bring the proceedings to an end . In particular circumstances the separate decision of a question may be appropriate even if it will not bring the proceedings to an end, such as where there is a strong prospect that the parties will agree upon the result when the core of their dispute is decided or where the decision will obviate unnecessary and expensive hearing of other questions, but such occasions must be carefully controlled, lest fragmentation of the proceedings (particularly when the exercise of rights of appeal is borne in mind) brings delay, expense and hardship greater than that which the making of an order was intended to avoid. It is often the case that the need to make findings of fact for a decision of the separate question, especially findings which may involve issues of credit, tell strongly against the making of an order because related facts, and renewed issues of credit, will or may arise at a later stage in the proceedings. Experience teaches that it should be able to be seen with clarity that decision of a separate question will be beneficial in the conduct of the proceedings and the resolution of the parties' dispute ."

BACKGROUND 8 These separate questions arise in proceedings concerning an unincorporated joint venture and its management. The joint venture is governed by an agreement dated 19 October 1992 ("the BMJVA") and by an associated earlier management agreement dated 4 March 1987 ("the management agreement"). The latter governs exploration, and if warranted, development and mining. The manager is Allstate Explorations NL, the First Plaintiff. The joint venture includes both the three Defendants and the Second Plaintiff. The nature of the dispute has ramified with the extensive pleadings. The Plaintiffs contend that at the core of the dispute are two questions. First, whether the Defendants' notice of 29 June 1998 purporting to be under clause 9.6(c) of the BMJVA alleging various disputed breaches by the First Plaintiff, as manager, was valid. Second, whether the charges referred to therein constitute a "material failure" of the First Plaintiff to perform its obligations and duties under the joint venture agreement. The Plaintiffs describe the consequential issues raised by the notice as "in essence" whether the appellant manager is entitled to include:

(a) a two per cent management fee in the cash calls on the joint venturers, and

(b) a charge representing a marking up of certain persons' salaries in accordance with a formula in item 17 to the schedule to the management agreement. 9 These issues have arisen, following cash calls upon the joint venturers and in particular the three Defendants. These calls are said to be in accordance with programmes and the budgets approved by a management committee under the BMJVA. There is however an issue of whether the Defendants were properly aware of what made up their constituent elements, as I describe later. 10 Under the Plaintiffs' Statement of Claim, the First Plaintiff claims that it is entitled to charge a management fee "under" clause 2.05 of the relevant Management Agreement (para 15). To this the Defendants respond that the definition of "costs" in clause 1.1 of the BMJVA and the costs the subject of clause 2.1 of the annexed "Accounting Procedure" do not extend to nor include management fees (para 17(a)). They contend, in the alternative, that management fees are "inconsistent" with the BMJVA (para 17(b)). To this the Plaintiffs respond that insofar as such management fees were paid by the Defendants, the Defendants, having had knowledge and awareness of the management fees and having approved them in circumstances where the Plaintiffs have at all times acted pursuant to decisions of and at the direction of the management committee, that it follows the Defendants are estopped from denying that the First Plaintiff was manager of the joint venture and thus entitled to the fees. To this the Plaintiffs respond that any monies paid were mistakenly paid by the First Defendant for management fees, with recovery now sought either by way of restitution or as money had and received. I deal later in more detail with the particularisation of these contentions. 11 There is a connection between the issue of the management fee and what are termed charges for "the services". Thus the pleadings disclose a dispute as to whether so much of such charges as represented a sum based on the marking up formulae in item 17 of the schedule to the Management Agreement in respect of the services of personnel retained by the manager on behalf of the joint venture are, or are not, the defined term "Costs" within clause 1.1 of the joint venture. "Costs" are there defined as meaning "all costs incurred in connection with Joint Venture Activities, accounted for in accordance with the Accounting Procedure or, where not provided for in the Accounting Procedure, in accordance with generally accepted accounting practices in Australia". There is a live dispute as to whether what I shall call these item 17 service costs "were Costs of the Joint Venture within the meaning of Part 2.1(f) of the Accounting Procedure" (para 12(a) of the Defence). 12 "Joint Venture Activities" are defined in clause 1 of the BMJVA as meaning "all activities conducted for the purposes of the Joint Venture and under the terms of this Agreement, up to the point at which Production is delivered, whether actually or notionally, to the Joint Venturers as provided in this Agreement." 13 The connection between the two items, that is the management fee and the charges based on the marking up formulae is that both were included in cash calls issued by the First Plaintiff. There is thus a live dispute as to whether the Defendants are, as the Plaintiffs contend, "precluded" from disputing that the cash calls issued by the First Plaintiff prior to 1996, are true and correct and thus "precluded" from making any adjustment claims in relation to those cash calls (see para 10 of the Plaintiffs' Reply). That preclusion is said to arise by way of estoppel and on the basis that the Defendants "had knowledge of, approved and were aware of the service cost charges and management fees and that the First Plaintiff has at all times acted pursuant to decisions of and at the direction of the Management Committee" (see Defence of 17 March 1999); see earlier. 14 A further complex of issues arises by virtue of the Second Amended Cross-Claim of the Defendants under which, speaking generally, it is said that the First Plaintiff stood in a fiduciary relationship with the joint venturers and owed fiduciary duties to the joint venturers as there elaborated. It is then said that the First Plaintiff breached those fiduciary duties by having:

"(i) engaged or retained the services of employees or staff of a related company in the conduct of the Joint Venture at rates of up to 2.4 times the usual salary of those employees and staff;

(ii) caused the Joint Venturers to pay for those services amounts of up to 2.4 times the usual salary of those employees and staff

even though comparable and more cost effective services were otherwise available." 15 The Cross-Claim goes on to contend that monies have been mistakenly paid by the First Defendant for management fees and for the marking up of salaries of personnel so engaged or retained by the first plaintiff (para 36). Payment back is sought in relation to those monies either by way of restitution (para 38) or as money had and received (para 39). 16 In the Plaintiffs' reply they rely upon estoppel as precluding claims under the Cross-Claim and in particular contend (paras 15 and 16): "15. In further reply, the plaintiffs say that in making cash calls upon, inter alia, the defendants, the first plaintiff acted in accordance with approved programs and budgets under clause 2.01 of the Beaconsfield Management Agreement and in accordance with the control and direction of the Management Committee under clause 9.3 of the BMJVA and that making the same was part of the joint venture activities which the Manager was bound to carry out under clause 10.1 of the BMJVA and that the Manager was bound to issue the cash calls under clause 11.2 of the BMJVA. 16. In further reply, the plaintiffs say that by reason of one or more of the matters aforesaid there was no failure to perform any obligation or duty imposed on the first plaintiff under the BMJVA and in the alternative, no failure in a material way within clause 9.6(c), which is otherwise denied."

17 There is, as I have said, a live dispute as to the nature of the approval of the programmes and budgets. Thus in para 5 of the Defendants' Reply to Defence to Second Amended Cross-Claim, paragraphs (b) and (d) provide relevantly as follows: "(b) admit that their representatives were present at meetings of the management committee at which proposed programmes and budgets were discussed and approved by the management committee. Save as aforesaid, they deny the allegations contained in paragraph 7(b); (d) say, without limiting the generality of the foregoing, and in further answer to the whole of paragraph 7, that at no material time did they appreciate nor were they informed by the cross-defendants and, in particular, by the first cross-defendant, for the purposes of, inter alia, a management committee meeting or otherwise that: (i) the programmes and budgets referred to in paragraph 7(a) included an amount or amounts for "Service Costs" and, as implicitly alleged, an implementation of the Charge in relation to the Personnel; (ii) the programmes and budgets referred to in paragraph 7(b) included an amount or amounts for "Service Costs" and, as implicitly alleged, an implementation of the Charge in relation to the Personnel; (iii) the cash calls referred to in paragraph 7(c) included an amount or amounts for "Service Costs" and, as implicitly alleged, an implementation of the Charge in relation to the Personnel."

18 Earlier in para 4(d) the Defendants contend that they did not appreciate nor were informed that the proposed programmes and budgets prepared and presented at the Management Committee meetings with the joint venturers included "the charge", this being the charge in para 6(b) of the Plaintiffs' Defence to Second Amended Cross-Claim in relation to "the Personnel" referred to in para 6(a) thereof. 19 Speaking generally, para 6(a) of the Plaintiffs' Defence to Second Amended Cross-Claim refers to the First Plaintiff as manager retaining, through a company called Otter Services Pty Limited on behalf of the joint venturer and allegedly in connection with Joint Venturer Activities, the services of some twenty persons. Paragraph 6(b) contends that "the cost of obtaining the services of those persons on behalf of the joint venture was in accordance with the amount charged by Otter Services and was charged in accordance with item 17 of the schedule to the Management Agreement ….". In that same Defence, the Plaintiffs, in para 7(a) define these as "Service Costs" being "amounts in respect of personnel retained through Otter Services Pty Limited by the First Cross-Defendant, as Manager of the Joint Venture, on behalf of the Joint Venture in the programmes and budgets presented to and approved by the Management Committee". 20 I deal with some of the ramifications of the pleadings through cross-claims and defences, in order to show that the issues involved are of considerable complexity. Speaking very broadly, they stem from the notice pleaded in paras 19 and 20 of the Plaintiffs' Statement of the Claim, said to be pursuant to clauses 12.5 and 9.6(c) of the BMJVA, requiring the First Plaintiff, as manager, to rectify specified alleged breaches of the BMJVA, such breaches being as I have earlier described and as elaborated in para 20 set out below: "Specific details of the alleged defaults of the first plaintiff as Manager in allegedly not conforming to the BMJVA when issuing cash calls under clause 11.3 of the BMJVA, all of which are denied, are: (a) charging incorrectly (charging 2.4 times salary rather than fair cost recovery) for the services of the Manager-Metallurgy (Barrie Hancock) who is a site employee; (b) charging incorrectly (charging 2.4 times salary rather than fair cost recovery) for the services of offsite personnel (such as Patrick Scott and Ian Kirkham) employed by Otter Gold Mines Limited or other companies within the Otter Gold Group; and (c) charging a management fee (calculated as 2% of total Joint Venture expenditure except for HEC power costs) when such a fee is not a defined Cost under the BMJVA."

21 The Plaintiffs conclude by seeking the following declarations: "1. A declaration that the facsimile dated 29 June 1998 from the first defendant to the plaintiffs is not a valid notice issued pursuant to clause 9.6(c) of the BMJVA and is of no effect. 2. A declaration that the purported notice is not a valid notice issued pursuant to clause 12.5 of the BMJVA and is of no effect. 3. A declaration that each of the cash calls issued by the first plaintiff as Manager of the Beaconsfield Mine Joint Venture have been properly made within clause 11.3 of the BMJVA in respect of the charges referred to in the purported notice, being: (a) the services of the Mine Manager - Metallurgy, Mr Barrie Hancock; (b) offsite personnel; and (c) a management fee. 4. Further and in the alternative, a declaration that any charge referred to in the purported notice not properly made within clause 11.3 of the BMJVA is not in all the circumstances a failure in a material way to perform any obligation or duty under the BMJVA by the first plaintiff as Manager of the Beaconsfield Mine."

22 The Plaintiffs in their outline submissions of 1 June 1999 gave a summation of the background to the issues now raised in para 2-5 in these terms: "2. The respondents served a purported notice dated 29 June 1998 upon the first appellant allegedly under clause 9.6(c) of the BMJVA. The issues raised by this purported notice are in essence whether the appellant is entitled to include a 2% management fee in the cash calls and whether the Manager is entitled to include a charge representing a marking up of certain persons' salaries in accordance with a formula in Item 17 to the schedule to the Beaconsfield Management Agreement. 3. The appellants commenced proceedings seeking declaratory relief specifically focussing upon the construction issues raised by the purported notice. A Defence and Second Amended Cross-Claim have been filed by the respondents which raises construction issues as well as an allegation of alleged fiduciary duty relating to the marking up of the employees' salaries as well as seeking recovery based on restitution for moneys had and received for the amounts paid in relation to the management fee and for so much of the salary as is above the fair cost of recovery for the services. A defence has been filed to the Second Cross-Claim raising both the matters of construction as well as joining issue with the causes of action alleged in the cross-claim as well as pleading certain estoppels. A reply has also been filed by the appellants raising both matters of construction and estoppel as well as a reply by the respondents. 4. The parties had an interlocutory dispute on the pleadings in relation to the adequacy of the alleged fiduciary duty. 4. By Notice of Motion dated 3 May 1999, which came before Master McLaughlin for hearing on 18 May 1999, the appellants sought to have separately determined three questions of construction and two questions of law. The application was supported by an affidavit of G. L. Kent sworn 12 May 1999 together with certain paragraphs of an affidavit of J. C. Wood sworn 9 July 1998 which was not the subject of cross-examination or competing evidence."

23 It is important to appreciate that the Plaintiffs in their broad overview could not adequately portray the factual and legal complexities exhibited by the pleadings to which I have made reference. Furthermore, these pleadings are themselves the subject of a request for further and better particulars by the Defendants from the Plaintiffs in relation to the Plaintiffs' Reply dated 17 March 1999 and the Defence to Second Amended Cross-Claim dated 17 March 1999. While the Plaintiffs point to the application being supported by an affidavit of G L Kent dated 12 May 1999 and certain paragraphs of an affidavit of J C Wood dated 9 July 1998 pointing out that these were not the subject of cross-examination or competing evidence (see para 5 of the Plaintiff's outline of submissions of 1 June 1999), it cannot be assumed that the request for particulars will not lead to the need for further evidence, or cross-examination. I should add that the Plaintiffs, to overcome any dispute in relation to the facts contained in Schedule B, have served a Notice of Motion supported by an affidavit of Mr Wood sworn 1 June 1999. But even if the facts in schedule B were treated as essentially not in dispute, there are real difficulties, of which the Master was evidently conscious, in seizing upon these preliminary questions as being straightforward questions of construction or law capable of resolution solely by reference to those facts and likely to be decisive of the proceedings if decided in a particular way. Before dealing with those difficulties in detail, I will elaborate on the applicable legal principles, to which I have earlier made reference at para 7 above.

LEGAL PRINCIPLES 24 An obvious danger with quarantining what are claimed to be the only relevant facts is that others may later turn out to be relevant. Then the court is in danger of impermissibly exceeding its proper judicial function, by deciding hypothetical rather than real questions in reliance on incomplete facts or facts not all found or agreed; see the joint judgments of the High Court in Bass and Another v Permanent Trustee Co Ltd & Ors (1999) 161 ALR 399 at 413-8 precluding such a course. The High Court cited with approval Brooking J in Jacobson v Ross [1995] 1 VR 337 at 341: "Care must be taken to ensure that, in one way or another, all the facts that are on any fairly arguable view relevant to the determination of the question are ascertainable … as facts assumed to be correct for the purposes of the preliminary determination, or as facts which both sides accept as correct, or as facts which are to be judicially determined. Failure to do this, and in particular failure to perceive that the facts alleged in a pleading are some only of the facts relevant to the determination of the preliminary question, may make the order for preliminary determination unfruitful."

25 That requirement is a fundamental barrier in the way of ordering separate questions which are not determinable solely by facts found or agreed. 26 Lord Denning in Carl Zeiss Stiftung v Herbert Smith & Co [1968] CA 93 at 98-9 confirmed that the proper rule is that a preliminary issue does not have to be decisive whichever way it is decided. It is enough if it is going to be decisive of the litigation if decided in one way; see also Needham J in Printing & Kindred Industries Union of Australia v Clarke (Needham J, SCNSW, 17 September 1976, unreported). He adds an important warning that mixed questions of fact and law rarely allow of a separate question: "I quite agree that in many cases the facts and law are so mixed up that it is very undesirable to have a preliminary issue. I always like to know the facts before deciding the law."

27 Thus what a contract means is primarily a question of law to be found as a matter of objective intention of the parties derived in the first instance from the words used. But courts have long recognised that disputes about what meaning was objectively intended almost invariably requires recourse to the factual matrix of the contract. What is comprised in the factual matrix, its potential for expansion in the interpretive process, is still a matter of divergent view. A narrow formulation was recently essayed by the Court of Appeal in these terms: "the immediate context of the contract, facts which both parties would have had in mind and known that the other had in mind when the contract was made"; per Staughton LJ in Scottish Power plc v Britoil (Exploration) Ltd & others (CA (Staughton, Ottow and Robert Walker LJJ), 18 November 1997) Times Law Reports 2 December 1997. Whether any wider ambit of fact may also be considered under factual matrix, or context, is discussed later (paras 39 and following). But this does not affect the basic proposition that a dispute about the construction of a contract, though primarily a legal question, almost invariably involves factual questions of context as well. 28 It is important that if limited issues are proposed for separate determination, the utmost care must be taken to ensure that they are really suitable for separate decision and that the questions are specified with clarity, in particular with respect to mixed questions of fact and law; see American Home Assurance Co v Ampol Refineries Ltd (1987) 10 NSWLR 13 at 18. 29 Thus courts often refuse to make such orders where what may first appear to be a pure question of law involves in truth findings of fact and the drawings of inferences from primary facts that are more properly dealt with as part of the proceedings as a whole; Rogers v Bailieu Bullock Wilkinson Pty Ltd (1981) 28 SASR 594. 30 That is not to say that, especially in complex litigation, there may not be circumstances where separate questions will be beneficial in the conduct of the proceedings and represent a likely shortening of the proceedings; the paradigm case is where a decision of a particular question critical to the outcome of the proceedings will, at least if decided in one way, bring the proceedings to an earlier end. The question is whether the Plaintiffs satisfy the onus upon them to disturb the finding of the Master that those exceptional circumstances were not there made out. It is to that I now turn.

RESOLUTION OF THIS APPEAL BY REFERENCE TO THOSE PRINCIPLES 31 It is convenient to take each of the questions in turn, referring where necessary to the relevant provisions of the joint venture documentation. 32 Question 1: Whether, as a matter of construction, a 2% Management Fee under clause 2.05 of the Beaconsfield Management Agreement is within the meaning of 'costs' in clause 11.3 of the Beaconsfield Mine Joint Venture Agreement (the "BMJVA")?

33 In relation to this question, the Defendants concede that on its face, it is arguable that question 1 is liable to be answered without resort to a factual framework. However, they contend that any answer would be unhelpful and that there are plainly anterior issues of some complexity to be untangled which do require resort to a factual framework before the kind of matters identified in question 1 can usefully be answered. 34 Thus the Defendants rely upon paras 17(b) and 18 of the Defendant and Second Amended Cross-Claim which is in these terms: "17. Further, the Defendants say, inter alia: (a) the definition of "Costs" in clause 1.1 of the BMJVA and the costs the subject of clause 2.1 of the Accounting Procedure (as defined in paragraph 12 of the Statement of Claim) do not extend to nor include management fees; (b) to the extent that a management fee is anticipated by the Management Agreement (as defined in paragraph 13 of the Statement of Claim) such a fee: (i) is not a relevant "principle" for the purposes of clause 9.3 of the BMJVA; further or alternatively (ii) is inconsistent with the substantive provisions of the BMJVA and, the BMJVA, by reason of clause 9.3 thereof, prevails over the Management Agreement. 18. (a) Subject to referring to the full terms and effect of the BMJVA at the trial of the proceeding and, specifically, clause 9.3 of the BMJVA, they admit that all Joint Venture Activities (as defined in clause 1.1 of the BMJVA) were to be carried out by the first Plaintiff in accordance with the principles set out in section 2 of the Management Agreement. (b) Save as aforesaid they deny each and every allegation contained in paragraph 16."

35 The Defendants' difficulty in a substantive trial of this question lies in the express words of clause 2.05 of the Beaconsfield Management Agreement. It clearly enough contemplates a two per cent management fee whilst clause 11.3 of the BMJVA is in these terms: "The Manager at its discretion, not more than thirty days before the commencement of any month, may issue to each Joint Venturer a Cash Call for that Joint Venturer's Percentage Interest share of the estimated Cost which the Manager anticipates will be incurred during that month."

36 "Costs" are defined as meaning "all costs incurred in connection with Joint Venture Activities, accounted for in accordance with the Accounting Procedure or, where not provided for in the Accounting Procedure, in accordance with generally accepted accounting practices in Australia."

37 The essence of the Defendants' argument is that each of these provisions must be subject to the overriding effect of clause 9.3 of the BMJVA, which provides: "All Joint Venture Activities must be carried out by the Manager, subject to the control and direction of the Committee and in accordance with the principles set out in s2 of the Management Agreement."

38 The pleading, as I have earlier quoted it, then asserts that "Costs" as so defined and as referred to in Clause 2.1 of the Accounting Procedure is a term not apt to comprehend management fees and in particular the two percent Management Fee. Further that to the extent that such a Management Fee is anticipated by the Management Agreement, as clearly it is, it is not "a relevant 'principle'" for the purposes of the overriding clause 9.3 of the BMJVA or is actually inconsistent with it. Presumably this latter argument depends on the word "principles" being inapt to pick up something of the nature of a management fee. 39 It can be seen that the argument is not without its difficulties. Nonetheless, insofar as the argument is not so implausible as to lead to a successful strike-out application in relation to that part of the Defendants' pleadings, as I am satisfied is the case, it does give rise to a legitimate question of interpretation anterior to question 1. The Defendants' argument is then that one cannot resolve that prior question without the Court looking at the relevant background before the parties in ascertaining objectively their contractual intentions. At the narrower level this means looking at least at what may be said to be the immediate context of the contract; that is, confining the factual matrix to the facts which both parties would have had in mind and known the other had in mind when the contract was made; per Staughton LJ in Scottish Power plc v Britoil (Exploration) and Others (supra). Lord Hoffman in Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] 2 WLR 945 at 972 would go further (speaking obiter in describing how contracts are to be construed, for what was before him was a contractual notice, not the contract itself): "In the case of commercial contracts, the restriction on the use of background has been quietly dropped. There are certain special kinds of evidence, such as previous negotiations and express declarations of intent, which for practical reasons …. are inadmissible in aid of construction. … but apart from these exceptions, commercial contracts are construed in the light of all the background which could reasonably have been expected to have been available to the parties in order to ascertain what would objectively have been understood to be their intentions: Prenn v Simmonds [1971] 1 WLR 1381, 1383. The fact that the words are capable of a literal application is no obstacle to evidence which demonstrates what a reasonable person with knowledge of the background would have understood the parties to mean, even if this compels one to say that they used the wrong words. In this area, we no longer confuse the meaning of words with the question of what meaning the use of the words was intended to convey."

40 That approach has not escaped academic criticism. Thus Sir Christopher Staughton, the judge in Scottish Power writing extra-judicially in 1999 58 Camb LJ 303 at 307 and 309 expresses concern at the proliferation of such extrinsic material with attendant cost; also at the notion that courts may ever override the plain words which the parties have used. But it may be questioned whether words are necessarily as plain as they first seem. As Spigelman CJ, remarks (Sir Ninian Stephen Lecture delivered 23 March 1999) writing extra-judicially: "Those who would strictly apply a 'plain meaning' rule have to recognise that general words do not necessarily have a plain meaning", citing Lord Wilberforce in Maunsell v Olins [1975] AC 373 at 385-6 41 Lord Hoffman seeks to emancipate legal construction from the notion that one must first find patent ambiguity before extrinsic evidence becomes admissible. It is rather the extrinsic evidence that not infrequently first shows that the literal meaning was not, in an objective sense, what both parties intended; ambiguity in that sense is latent rather than patent. Semanticists teach us that ambiguity resides in almost any writing divorced from context. Lord Hoffman, writing extra-judicially on "The Intolerable Wrestle with Words and Meanings" in (1997) 114 SALJ 656 at 658 had this to say: "I am not sure that it would ever be possible to use words in a way which was completely unambiguous regardless of the context in which they were uttered; it would certainly require a great deal of thought which we do not normally give to speaking or even writing. In practice we do not try."

42 Indeed "ambiguity" is itself a word of ambiguous reference. Does it mean that one of two (or more) meanings are equally available, or does it also comprehend the commoner situation where the literal words have a likely conventional meaning but are capable of bearing a less likely one; one which, under well-accepted canons of construction can be established as the parties' common intention in an objective sense, by reference to what Lord Steyn calls "the objective contextual scene". 43 Thus in Mannai Lord Steyn at 961 said: "First, in respect of contracts …. the contextual scene is always relevant. Secondly, what is admissible as a matter of the rules of evidence under this heading is what is arguably relevant. But admissibility is not the decisive matter. The real question is what evidence of surrounding circumstances might ultimately be allowed to influence the question of interpretation. That depends on what meanings the language read against the objective contextual scene will let in. Thirdly the inquiry is objective: the question is what reasonable persons, circumstanced as the actual parties were, would have had in mind."

44 But whether one takes the wider or narrow view of context and factual matrix, the questions of construction are not self-evidently ones which can be safely determined solely by reference to the words used and the factual matters in Schedule B, with no resort beyond that to "the objective contextual scene". 45 Thus when one analyses Question 1 in terms of the pleadings, it does evoke anterior questions indicating the possibility - yet to be determined - of a different outcome than a surface reading of the literal words may suggest; in particular as to whether, though the two per cent Management Fee (upper or lower case) may be literally within the meaning of "Costs" in clause 11.3 of the BMJVA, this result may nonetheless be precluded by other provisions of the BMJVA and the associated documents. This is judged by reference to the objective contextual scene, viewed by "reasonable persons circumstanced as the actual parties were", so as to determine in an objective sense what such persons would have had in mind in relation to the Management Fee. In so doing, one seeks to find the meaning to be attributed objectively to the words from the evident commercial purpose of the parties' overall arrangements; compare Lord Steyn "Contract Law: Expectations of Honest Men" (1997) 113 LQR 431 at 441. 46 On that basis, there are questions of fact to be determined which go beyond those factual statements contained in Schedule B, even if all of these were treated as not genuinely in dispute and thus treated as matters which the Defendants should be required to admit without further proof. 47 That reasoning must be fatal to determining question 1 as a proper question for separate determination, as it cannot be said that it could not depend on facts additional to those required to be admitted, when regard is had to anterior issues. 48 Question 2: Whether, as a matter of construction, the marking up of an employee's fee determined on a time basis for each employee of any company related to the Manager as are employed on the Project in an amount not exceeding the formula in Item 17 of the Schedule to the Beaconsfield Management Agreement is within the meaning of 'costs' in clause 11.3 of the BMJVA.?

49 Here again, the Defendants' apparent concession that the question is susceptible on its face to determination without resort to extrinsic facts is importantly qualified. The Defendants contend that such an approach is inattentive to antecedent questions that must be resolved which themselves present issues, the answers to which will require evidence concerning the conduct of the Plaintiffs. 50 The Defendants' contentions are as I have earlier quoted them from the Defendants' pleadings. Essentially, what the Defendants put in issue is the Plaintiffs' contention that the Defendants "had knowledge" and were "aware" that the multiplier (140 per cent concededly within the formula in item 17 of the schedule to the Beaconsfield Management Agreement), had been applied in relation to the twenty persons set out para 6(a) of the Plaintiffs' Defence. That is put in issue by para 5(d) and 6(j) of the Defendants' Reply to Defence to the Second Amended Cross-Claim. The Defendants point to the 29 June 1998 notice (Annexure A to the 9 July 1999 Wood affidavit) and to the particulars of para 32 of the Defendant's Defence and Second Amended Cross-Claim as referring only to three persons, Messrs Hancock, Scott and Kirkham as having received that mark-up, whereas seventeen additional persons who received the mark-up were identified in para 6(a) of the Plaintiffs' Defence to Second Amended Cross-Claim. 51 Essentially, the Defendants' contention is that, being (as they say) unaware and lacking knowledge of this multiplier in relation to the twenty persons, this removes the basis for a "Cash Call" capable of being legitimately made by the Plaintiffs. Such a Cash Call must be the result of an approved and binding programme and budget for the purposes of clause 10.5 of the BMJVA. The Committee, under clause 10.3 of the BMJVA must meet to consider and approve programmes and budgets prepared by the Manager before there can be a Cash Call for it is only "a programme and budget approved in accordance with the above provisions of that Part" which will be binding upon the joint ventures and on the Manager; see clause 10.5 of the BMJVA. The Defendants claim ignorance of a constituent element of the Cash Call, as put in issue by paras 5(d) and 6(j) of the Defendants' earlier mentioned Reply. 52 Essentially then the argument will be a factual one as to whether there was knowledge and awareness of the relevant marking-up on the part of the Defendants via their representation on the relevant Committee. If there were lacking that knowledge and awareness, then question 2, even if answered in the affirmative, would not in that regard resolve the real dispute between the parties. That dispute is not the question of construction but rather the question of whether as the Plaintiffs allege, there are necessary anterior procedures of full disclosure to be complied with and whether they were, such as would allow a Cash Call to be made which included the relevant mark-ups. 53 That again is fatal to allowing question 2 as a question for separate determination as it cannot in any real sense shorten the proceedings even if resolved in favour of the Plaintiffs. I should add that while the relevant affidavit evidence indicates some disclosure (see Annexure A to the 9 July 1998 Wood affidavit plus paras 27 and 29) the Defendants' case as I understand it is that they were not aware with particularity of the numbers of personnel receiving this mark-up and that this was a material matter. One can anticipate the Plaintiffs will strongly contend that the disclosure was sufficient but that is the very kind of matter that is properly for the substantive trial. 54 Question 3: Whether, as a matter of construction, a program and budget approval in accordance with Part 10 which was calculated to include a 2% Management Fee under clause 2.05 and the marking up of an employee's fee determined on a time basis for each employee of any company related to the Manager as are employed on the Project in an amount not exceeding the formula in Item 17 of the Schedule to the Beaconsfield Management Agreement is binding upon the joint venturers and on the Manager under clause 10.5 of the BMJVA and is a decision binding upon the Joint Venturers pursuant to clause 7.2 of the BMJVA.?

55 For the same reason as question 2 should not be for separate determination, question 3 should not be allowed either. Question 3 simply begs the question as to whether the programme and budget had been approved in accordance with Part 10 of the BMJVA so as to have the consequences in clause 7.2 and 10.5 of the BMJVA. 56 Question 4: Whether, in the circumstances as described in schedule B, as a question of law, the Manager could be subject to any fiduciary duty as alleged in the pleadings in carrying out joint venture activities in accordance with programs and budgets approved by the Management Committee under Part 10 of the BMJVA.?

57 This question of whether the Manager could be subject to any fiduciary duty as alleged in the pleadings "in carrying out joint venture activities in accordance with programmes and budgets approved by the Management Committee under Part 10 of the BMJVA" first suffers from the difficulty earlier mentioned, namely that it begs the question whether or not the programmes and budgets were relevantly here approved by the Management Committee. This is in terms not just of their global total but of a sufficiently explicit breakdown of the items therein comprised including the mark-up for the twenty employees. The underlying premise of the Plaintiffs is that once a programme and budget is approved by the Management Committee under Part 10 of the BMJVA, the Manager must simply carry out the joint venture activities in accordance with those programmes and budgets so approved such that the fiduciary duty is overridden by that contractual stipulation. The Plaintiffs rely on the well-known passage in Hospital Products Limited v United States Surgical Corporation & Others (1984) 156 CLR 41 at 97 where Mason J says: "That contractual and fiduciary relationships may co-exist between the same parties has never been doubted. Indeed, the existence of a basic contractual relationship has in many situations provided a foundation for the erection of a fiduciary relationship. In these situations, it is the contractual foundation which is all important because it is the contract that regulates the basic rights and liabilities of the parties. The fiduciary relationship, if it is to exist at all, must accommodate itself to the terms of the contract so that it is consistent with, and conforms to them. The fiduciary relationship cannot be superimposed upon the contract in such a way as to alter the operation which the contract was intended to have according to its true construction."

58 To this the Defendants have several answers based on the contract itself and also that a fiduciary relationship on the manager's part would find its foundation in agency, not contract, in contrast to the situation in Hospital Products. First, they point to clause 2.01(c) of the Management Agreement which requires the performance of joint venture activities "in a good and workmanlike and cost effective manner". Certainly, one would expect that a fiduciary obligation which would apply to the Manager as agent of the venturers would go so far as to place the Manager under a fiduciary obligation in preparation of the relevant programmes and budgets which are themselves to be approved; see generally for a useful discussion on an operator or manager's fiduciary position, "Joint Ventures Law in Australia", edited by W D Duncan 1994 and in particular "Joint Ventures and Equity - Fiduciary Aspects" by Rogers and Nesbitt at 77-9. A manager or operator is the paradigm of a fiduciary agent, being the agent of the venturers, whether appointed by them jointly or severally. 59 It is significant that in the case of a manager or operator, the existence of the basic contractual relationship may not, in the earlier quoted words of Mason J, necessarily provide "the foundation for" the erection of the fiduciary relationship. Rather that foundation is to be derived not from contract, but from the fact that the Manager is the agent of the venturers. Fiduciary obligations presumptively attach as a matter of law to an agency relationship, more particularly where the operator is placed in the position of ascendancy or trust and confidence by the venturers in holding funds and property for them. The contract may flesh out the details of those fiduciary obligations, but is not their fundamental source. 60 That does not render the joint venture contractual documentation irrelevant to the content of the fiduciary obligation. But it does not equate the situation to that of, for example, a distributor to his principal, where the relationship per se, unlike an agency, does not have a fiduciary character but depends fundamentally on the contract itself though capable of being affected by other factors. Here, the contractual documentation would have to be looked at with some care in analysing the content of the fiduciary duty of the Manager in the relevant circumstances but is not determinative in that fundamental sense. Answering question 4 as a separate question would not therefore assist in that overall determination. I should add that such a determination again necessarily requires reference to the factual matrix of the parties' relationship and the factual matters set out in B are quite possibly incomplete for this purpose. Moreover the question is one of mixed fact and law where separating questions and identifying all relevant facts with the necessary precision presents especial difficulty. 61 Question 5: Whether, in the circumstances as described in schedule B, as a question of law, the marking up of an employee's fee determined on a time basis for each employee of any company related to the Manager as are employed on the Project, or engaging retaining or paying such an employee, in an amount not exceeding the formula in Item 17 of the Schedule to the BMJVA could be a breach of the obligation under clause 2.01(c) of the Beaconsfield Management Agreement?

62 Question 5 is in my opinion in a similar position so far as it being a mixed question of fact and law. The marking-up of an employee's fee is not automatically to be treated as complying with the relevant provisions of the joint venture documentation and in particular clause 2.01(c), merely because it did not exceed the formula in item 17 of the schedule to the BMJVA. 63 Indeed when one considers the multiplicity of circumstances that may apply in particular cases to the justifiability of marking-up of an employee's fee, tested against clause 2.1(c) requiring the Manager subject as there stated, "to perform all of its obligations hereunder and conduct all Operations in a good and workmanlike and cost effective manner, "the answer may well be "it all depends". That is another way of saying that answering question 5 as an abstract question of law, without reference to facts other than those described in Schedule B, could not be determinative. If one takes, for example, para 4 of Schedule B, if there were insufficient disclosure in the relevant programme or budget prepared by the Manager by way of breakdown, there could, depending on the circumstances, be a basis for concluding that a breach of the obligation under clause 2.01(c) of the Beaconsfield Management Agreement had occurred. This matter of course has not been tested. But it highlights the difficulty of separating out a question such as question 5. 64 Thus for similar reasons question 5 is not a question which should be separately answered.

Conclusion 65 I do not find anything in the grounds of appeal which should alter the conclusion that I have earlier reached that none of the five questions should be separately answered. I find no fault with the Master's reasoning, though I have attempted to elaborate what should be its underpinning in the context of the particular questions sought to be separately answered. The Master had adequate grounds for not being assured that these questions were capable of easy separation from disputed questions of fact or were yet ripe for determination. Nor were they questions which would assuredly, if answered one way, shorten the case; indeed I would be inclined to think they may well lengthen it, if unintendedly.

Factual Admissions Sought - Schedule B 66 I turn now to the admissions sought in Schedule B. Paragraphs 1 and 2 are not genuinely in dispute and indeed the Defendants do not contend otherwise, though they fairly require so far as paragraph 2 is concerned, that the Plaintiffs produce the BMJVA and the Amendment Deed rather than rely on Exhibit JCW1 which contains some scribbled annotations. 67 As to paragraph 3, a statement that Allstate Explorations NL is the Manager of the Beaconsfield Mine Joint Venture (see "BMJV") and is bound by the terms of the BMJVA" is correctly described as ambiguous, in that it is unclear whether this is a statement of present fact or a statement as to a position over a given period and if the latter, what that period is. However, it should not be difficult to re-frame paragraph 4 to remedy any ambiguity on that score. 68 As to paragraph 4 regarding Cash Calls, this again begs the question were the relevant items properly disclosed in the programme or budget by way of separate itemisation. 69 As to paragraph 5, this must be a question of both fact and law and is not something that could be said to be outside the realm of genuine dispute. 70 As to paragraph 6, its raison d'être was presumably to serve as a shorthand description of the pleadings, for the purpose of answering the questions sought to be separately determined and in particular question 4. I agree with the Defendants' position that it would be better to avoid paraphrasing the pleadings.

CONCLUSION 71 None of the five questions sought to be separately determined should be separately determined and the Master's conclusion in that regard should not be disturbed. As to the admission as not genuinely in dispute of items 1 and 2 of Schedule B, that should be required and likewise paragraph 3 of Schedule B, subject to appropriate definition of the term or period to which it relates. No other matters need be admitted. 72 Costs should ordinarily follow the event though if the parties wish to do so I will hear argument on costs.

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