Appellants v Respondent

1 This is an appeal from decisions of Barrett AsJ regarding a claim of common interest privilege over certain documents.

2 In this proceeding, the plaintiff and respondent, Mr Ma, alleges that he entered into a joint venture with the first defendant and first appellant, Mr Qin, for the manufacture of modules to be used in the construction of high-rise buildings. Ma claims that the joint venture formed part of a broader transaction between Ma and Qin on the one hand and certain entities and individuals associated with Hickory Building Systems Pty Ltd ("Hickory"), which owned the intellectual property in the module technology, on the other ("the Hickory entities").[1] Ma was based in China, and the transaction involved Qin dealing with lawyers in Australia, B2B Lawyers ("B2B"). Ma ultimately invested several million dollars in the project. His relationship with Qin then collapsed. Ma has sought to recover the money which he paid in connection with the venture.

3 By summons dated 24 March 2023 ("Discovery Summons"), Ma applied for orders that the first and second appellants (together, "Qin defendants") provide inspection to Ma of certain documents and communications exchanged between Qin and B2B, namely:

(a) the documents listed in Parts 2 and 3 of Schedule 1 to the Qin defendants' amended second list of documents dated 17 February 2023; and

(b) the documents listed in Part 2 of Schedule 1 to the Qin defendants' third list of documents dated 10 March 2023,

(collectively called the "Contested Documents").

4 The Contested Documents cover the period from May 2013 to May 2016. The Qin defendants claim privilege over these documents on the grounds that they are:

(a) confidential communications to or from B2B, the Qin defendants' lawyers, in relation to legal advice; or

(b) documents prepared by B2B for the purpose of giving legal advice to Qin.

5 The issue in the application before Barrett AsJ was whether Ma and Qin had a common interest in the Contested Documents. Ma asserted that a common interest existed such that there was no privilege between them in relation to the Contested Documents, which are said to relate to the Hickory transaction. Qin said that B2B only ever acted for Qin and denied any common interest privilege with Ma.

6 Associate Justice Barrett heard the Discovery Summons on 21 July 2023 and handed down his ruling on 9 October 2023 ("Ruling").[2] Having summarised the facts, legal principles and submissions, his Honour made some key findings, namely:

• it did not appear to be disputed that from 2013, Ma and Qin had discussed being involved in a business venture together with the Hickory entities, or that Ma provided significant funding for that venture;
• the Qin defendants' solicitors, B2B, provided at least some legal services for the benefit of the common interests of Ma and the Qin defendants;
• it was sufficiently clear that Ma and Qin's interests were relevantly aligned and that B2B was providing advice to Qin for the benefit of Ma and Qin regarding their side of the transaction;
• his Honour relied upon two payments, each of approximately $5 million, made by Ma in March 2014 and October 2014 to entities or persons nominated by Qin and which Qin later paid to the Hickory entities;
• B2B was involved in drafting the Heads of Agreement in 2014 where the parties were the Hickory entities on the one hand and "Ruibin Qin and entities yet to be incorporated" on the other hand; and
• in finding that Ma had made out the case for common interest privilege, his Honour did not express a concluded view about the existence or otherwise of a joint venture between Ma and Qin, which was a matter to be determined at trial.[3]

7 His Honour also noted that a common interest privilege may arise where a party believes on reasonable grounds that the lawyer is acting for that party's benefit.[4] The Associate Judge set out the various reasons why Ma held that belief and concluded that he was satisfied that Ma had a reasonable basis for the belief that B2B was acting in both his and Qin's interests.[5]

8 His Honour was satisfied that Ma and Qin had a joint interest for the purposes of s 124 of the Evidence Act 2008 (Vic) ("Evidence Act") and that B2B provided some advice for the benefit of Ma and Qin consistently with that common interest.[6]

9 In the Ruling, his Honour did not make a finding as to when the common interest commenced, but noted that Ma and Qin's interests eventually became adverse to one another. Ma argued that the common interest commenced in June 2013 in light of discussions between him and Qin at the time, but ended by October 2015. Qin essentially contended that he and Ma never had any common interest.

10 The Associate Judge concluded that it was not possible to determine which of the documents in question were privileged without inspecting them, which he had power to do under s 133 of the Evidence Act.[7]

11 When the issue of inspection was raised at the hearing, Ma contended that, while the Court did have the power to inspect the documents, it was unnecessary to do so. This was said to be because the question to resolve was a factual one, namely, whether B2B provided services for Ma's benefit as well as Qin's.

12 The Qin defendants made no submissions about whether Barrett AsJ should inspect the documents.

13 The Court invited the parties to provide submissions about the date range of the documents to be inspected by the Court.

14 After the delivery of the ruling in October 2023, Barrett AsJ made an order in relation to the Discovery Summons on 20 December 2024 ("20 December Order"). The order noted in "Other Matters" that:

1. On 9 October 2023, reasons were delivered in Ma v Qin [2023] VSC 598 in relation to the plaintiff's summons dated 24 March 2023 for inspection of privileged documents based on common interest privilege.
2. In the reasons it was found that the parties had a common interest in documents. By paragraph 29 of those reasons the parties were directed to provide to the Court draft orders reflecting the reasons and if a date range for production of documents could not be agreed, then short submissions as to the appropriate date range. The parties could not agree and filed short submissions.

1. The plaintiff seeks production of documents from June 2013 to 16 October 2015 on the basis that the evidence is that June 2013 is when discussions started between the parties about the venture. The first and second defendants submit that the date range should be 6 March 2014 to 16 October 2015 based on the plaintiff's pleaded case that the joint venture was entered into on 6 March 2014.

1. The appropriate order is that documents from the date range June 2013 to 16 October 2015 be produced to the Court for inspection. There is evidence that discussions about the setting up of the joint venture were occurring from June 2013 and to the extent there was legal advice given during that period in relation to the venture, the parties had a common interest in it.

15 The order required the Qin defendants to produce to the Court for inspection, by 21 January 2025, those Contested Documents which fell within the June 2013 to 16 October 2015 date range ("Inspected Documents").

16 On 6 March 2025, Barrett AsJ made another order ("6 March Order"). The Court noted in "Other Matters" as follows:

1. On 9 October 2023, reasons were delivered in Ma v Qin [2023] VSC 598 in relation to the plaintiff's summons filed 24 March 2023 for inspection of privileged documents based on common interest privilege.
2. On 20 December 2024, AsJ Barrett made Orders for the inspection by the Court of documents to determine whether they were subject to common interest privilege. Those documents have been produced to the Court and Barrett AsJ has inspected them and determined they are subject to common interest privilege and should be produced to the plaintiff, subject to that privilege.

17 Order 1 of the 6 March Order stated that the Inspected Documents were subject to common interest privilege between Ma and the Qin defendants and must be produced to Ma for inspection. The Order did not specify a deadline for production.

18 The final relevant order made by Barrett AsJ was on 14 March 2025 ("14 March Order"). The Court said in "Other Matters":

1. On 6 March 2025, AsJ Barrett ordered that the documents referred to in that order must be produced by the first and second defendants for inspection by the plaintiff ("6 March Order").
2. This order is made to address certain matters subsequently raised with the Court subsequent to the making of the 6 March Order.

1. These orders are made in final disposition of the plaintiff's summons filed 24 March 2023 and to correct an error under the slip rule. The parties provided draft orders that differed only in relation to the date by which documents must be produced. The Court considers it is appropriate that the documents be produced by 4:00pm on 21 March 2025.

19 Order 2 of the 14 March Order required the Qin defendants to pay the plaintiff's costs of and incidental to the application by Discovery Summons. Order 3 required the Qin defendants to produce the Inspected Documents to the plaintiff by 21 March 2025.

20 By notice of appeal filed 19 March 2025, the Qin defendants seek to appeal the following:

(a) order 1 of the 6 March Order, which states that the documents listed therein are "subject to a common interest privilege between the plaintiff and first and second defendants' [sic] and must be produced to the plaintiff for inspection";

(b) order 2 of the 14 March Order, which provides that "the first and second defendants pay the plaintiff's costs of and incidental to his application by summons filed on 24 March 2023" (ie the Discovery Summons);

(c) order 3 of the 14 March Order, which says that "the time by which the first and second defendants must produce to the plaintiff the documents referred to in the 6 March Order is fixed at 4.00pm on 21 March 2025"; and

(d) the Ruling.

21 The Qin defendants seek orders setting aside the aforementioned orders, dismissing the Discovery Summons and requiring the plaintiff to pay the Qin defendants' costs of this appeal and costs of and incidental to the Discovery Summons.

22 The notice of appeal states two broad grounds of appeal.

23 First, the Qin defendants say that the Associate Judge erred in finding that B2B provided at least some legal services for the benefit of the common interests of Ma and the Qin defendants. The Qin defendants say the error arose or was evident from two findings of the Court, namely:

(a) the finding that it was sufficiently clear that the interests of Ma and the Qin defendants were relevantly aligned, in circumstances where:

(i) the admissible evidence did not support such a finding;

(ii) the Associate Judge made the finding before inspecting the documents over which the Qin defendants claimed legal professional privilege; and

(iii) the finding was not supported or capable of being reconciled with Ma's pleading,

("Ground 1(a)"); and

(b) the finding that the fact that B2B was involved in the process of drafting the Heads of Agreement provided a sufficient basis from which to conclude that at least some of B2B's advice was provided for the common interest of Ma and Qin, including in circumstances where:

(i) the Associate Judge did not express a concluded view as to the existence of a joint venture between Ma and one or other of the Qin defendants; and

(ii) Ma made no positive allegation in his pleading that he was a party to the Heads of Agreement,

("Ground 1(b)").

24 Secondly, the Qin defendants contend that the Court erred in determining that Ma and Qin had a common interest for the purpose of s 124 of the Evidence Act and that B2B provided at least some advice to Qin consistently with that common interest. The error is said to arise or be evident from the Associate Judge having:

(a) based his finding upon Ma's subjective belief that B2B was acting for both him and Qin; and

(b) proceeded on the erroneous basis that it was sufficient for common interest privilege to arise if a party believed on reasonable grounds that a lawyer was acting for that party's benefit (without taking account of whether the belief accorded with the true substance of the arrangement between the lawyer and the potential client(s)),

("Ground 2").

25 In oral submissions at the appeal hearing, the Qin defendants advanced four key propositions:

(a) as the party asserting a claim to joint client privilege, the plaintiff had the evidentiary onus of proving his entitlement thereto;

(b) in order to discharge that onus, the plaintiff was required to establish the existence of a particular type of formal legal relationship between him and Qin;

(c) the evidence adduced at the hearing before the Associate Judge did not establish the necessary legal relationship;

(d) the Associate Judge's determination of the application below could not be attributed to or attributable to admissible evidence, but rather three erroneous planks of reasoning (which appeared to be expressed in terms similar to Grounds 1(a), 1(b) and 2 respectively), namely:

(i) the application of a test based on an "alignment of interests" rather than the correct test set out in (b) above, and which was based on pleaded facts which were not the subject of evidence before the Associate Judge;

(ii) a reliance on B2B's involvement in the drafting of certain documents relating to the Hickory transaction; and

(iii) findings about the plaintiff's subjective beliefs as to whether B2B were acting for he and Qin jointly.

26 By notice of contention filed 1 April 2025, the plaintiff contends that the 6 March Order and 14 March Order should be affirmed. The plaintiff does not seek to cross-appeal from any part of those orders.

27 The notice of contention does not expressly address Ground 1(a) or Ground 1(b) of the appeal.

28 The notice states that, if the Associate Judge erred as asserted by Ground 2, then the facts referred to in paragraph 22 of the Ruling were nonetheless objective facts which supported the existence of a joint or common interest.

29 As a preliminary matter, the plaintiff alleges problems in the Qin defendants' conduct of the appeal.

30 Firstly, the plaintiff says that the Qin defendants sought to introduce in its submissions a further ground of appeal, based on an error of law, which had not been included in the notice of appeal. The error is said to be the Associate Judge's failure to require the existence of a formal legal relationship between Ma and Qin necessary for common interest privilege to have arisen ("the Legal Relationship Ground"). The plaintiff noted that, at the time of drafting the notice of appeal, the Qin defendants must have been aware of Attiwill J's comments in Re SLKALT Pty Ltd (in liq)[8] ("Re SLKALT") on the purported requirement for the relevant formal legal relationship, as that judgment was handed down in May 2023 and, indeed, involved both B2B and counsel for the Qin defendants.

31 Secondly, the plaintiff noted that there was no ground of appeal asserting that his Honour erred in his determination of which documents were subject to joint privilege based on his inspection of the documents.

32 Thirdly, the plaintiff says that the reasons provided by the Associate Judge in the Ruling led only to a decision for his Honour to inspect certain of the Disputed Documents, not a final decision as to the privilege status of those documents. If the real complaint was that the Court erred in exercising its discretion to examine the disputed documents, the Qin defendants needed to show an error within the principles set out in House v The King.[9] Moreover, such a complaint should have been raised by notice of appeal from the 20 December Order and not subsequent orders. The Qin defendants also did not make any submissions against the Court inspecting the disputed documents either at the July 2023 hearing before Barrett AsJ or in the submissions subsequently filed after the Ruling was delivered.

33 Fourthly, the notice of appeal and arguments advanced appear to assume that his Honour moved directly from the Ruling to the 6 March Order. This overlooked the intervening steps taken by his Honour. Firstly, his Honour invited the parties to make submissions about the date range of documents. Then, having determined the relevant range of dates based on those submissions, his Honour inspected the documents falling within those dates. Only after inspecting those documents did his Honour hand down the 6 March Order declaring certain documents to be subject to joint privilege and requiring their production to the plaintiff.

Qin defendants' position regarding procedural issues

34 In relation to the first procedural issue, counsel for the Qin defendants argued that the Legal Relationship Ground was "implicit" in the notice of appeal. Moreover, the complaint was clearly identified in its written submissions.

35 As for the second, third and fourth issues, the Qin defendants accepted that, if their complaint had been against the Associate Judge's exercise of discretion to inspect under s 133 of the Evidence Act, they would have had to establish an error in accordance with House v The King.[10] However, counsel explained that the appeal was directed towards the 6 March Order rather than earlier decisions of the Associate Judge because:

• until the Associate Judge's inspection of the documents had been undertaken, it was still unknown whether any of the Contested Documents would be required to be disclosed. The outcome of the Associate Judge's inspection only became evident when the 6 March Order was made; and
• prior to the time of the March Orders, there was nothing that was appropriately the subject of an appeal. Counsel noted that the Associate Judge had not provided a further ruling alongside the orders, as is often provided, to explain the reasoning as to why certain documents were subject to common interest privilege, and from which the Qin defendants could appeal.

36 As to the first procedural issue, I agree with the Qin defendants' submission that the Legal Relationship Ground is implicit in the notice of appeal. I do not consider the Qin defendants to have advanced a new ground of appeal. Rather, the question of whether a formal legal relationship between Ma and Qin is required, and if so, whether it existed, underlies Ground 1(b). In any event, the Legal Relationship Ground was advanced in the Qin defendants' written submissions. The plaintiff had adequate notice of the argument and was able to deal with it during the hearing of this appeal. Therefore, I do not take issue with this aspect of the Qin defendants' conduct of its case.

37 The second, third and fourth procedural issues raised by the plaintiff are interrelated. The notice of appeal seeks that order 1 of the 6 March Order be set aside. That order declared the Contested Documents subject to a common interest privilege between the plaintiff and the Qin defendants and required that those documents be produced to the plaintiff for inspection. The plaintiff effectively asserts that challenging that order would require the Qin defendants to show that Barrett AsJ made an error in exercising his power to inspect the documents pursuant to s 133 of the Evidence Act and/or reached the wrong factual conclusion after inspecting those documents. That is because order 1 of the 6 March Order flowed from the inspection of the Contested Documents undertaken by Barrett AsJ, and not solely the findings made in the Ruling.

38 I accept the plaintiff's argument. The Qin defendants did not assert that the Barrett AsJ ought not to have inspected the documents or that the power under s 133 was exercised incorrectly, either at the hearing of the Discovery Summons, in their written submissions dated 3 November 2024, or at the hearing of this appeal. To impugn order 1 of the 6 March Order, they would have needed to do so. The grounds of appeal set out in the notice of appeal are therefore misdirected. The explanation provided by the Qin defendants in paragraph 35 above does not cure this defect. Nor did the Qin defendants seek to clarify their true position in their written submissions prior to the hearing. I see no proper basis to allow the Qin defendants to depart from the notice of appeal and their written submissions.

39 This appeal was brought by notice under r 77.06 of the of the Supreme Court (General Civil Procedure) Rules 2015 (Vic). Such appeals are not by way of rehearing de novo but are rehearings which, in the absence of further evidence or a change in the law, ordinarily requires an appellant to show error on the part of the Associate Judge before appellate power may be exercised.[11] In addition, if the orders from which an appeal is brought relate to a matter of practice and procedure (as is the case here), an appellate court will exercise particular caution in reviewing the decision.[12]

Ground 1 - did the Associate Judge err in finding that B2B provided at least some legal services for the benefit of the common interests of the plaintiff and the Qin defendants?

40 At paragraph 20 of the Ruling, the Associate Judge found that B2B provided "at least some services for the benefit of the common interests" of Ma and the Qin defendants. This finding was supported by the Associate Judge's conclusions that:

(a) it was "sufficiently clear that Mr Ma and Mr Qin's interests were relevantly aligned and that B2B was providing advice to Mr Qin for the benefit of Mr Ma and Mr Qin on one side of the bargain" ("Alignment Finding"); and

(b) B2B's involvement in drafting a Heads of Agreement in 2014, in which the parties were the Hickory entities on the one hand and "Ruibin Qin and entities yet to be incorporated" on the other, was "a sufficient basis from which to conclude that some, at least, of the advice B2B provided was provided for the common interest of Mr Ma and Mr Qin in relation to the venture with Hickory" ("Drafting Involvement Finding").

41 The Qin defendants submit that the Alignment Finding was made in error for the following reasons.

42 First, the admissible evidence did not support such a finding. The finding appeared to be based on the fact that Ma made two payments of approximately AU$5 million each to persons or entities nominated by Qin ("2014 Payments"). Qin subsequently arranged for payment of money to the Hickory entities. However, Ma's affidavit dated 11 April 2023 ("Ma affidavit") contained no evidence of the 2014 Payments.[13] Further, the mere fact that the Qin defendants had not suggested or provided evidence that the 2014 Payments were for a purpose other than the Hickory transaction (as alleged by the plaintiff) did not provide an evidentiary basis for the Associate Judge's finding. In circumstances where the Ma affidavit did not address the 2014 Payments, Qin's affidavit dated 27 July 2023 ("Qin affidavit")[14] was focused on B2B's retainer, rather than the fact or purpose of the 2014 Payments.

43 Secondly, the Associate Judge made the Alignment Finding without the benefit of inspecting the Contested Documents to assess whether their contents were consistent with that finding. His Honour had stated in the Ruling that it was necessary to inspect the documents in order determine which of them were subject to joint privilege.[15]

44 Thirdly, the Alignment Finding was in error because it was not capable of being reconciled with Ma's own pleaded case, which characterises B2B as acting for Qin, not Ma nor Qin and Ma jointly. The plaintiff's further amended statement of claim dated 19 May 2023 ("FASOC") states that around October 2015, B2B requested a payment receipt from Hickory for Ma. The FASOC describes B2B as having made the request for the receipt "as agent for" or "on behalf of" the Qin defendants.[16] The Qin defendants say that this is inconsistent with B2B acting on behalf of the plaintiff. The Qin defendants also say that the FASOC contains no positive allegation that the plaintiff was a party to the relevant transaction documents.

45 I note that during oral submissions, counsel for the Qin defendants briefly raised (for the first time) the point that the concept of "alignment of interest" is not referred to in the authorities and does not reflect the applicable test, but did not elaborate further. If the Qin defendants wished to argue that the Alignment Finding was premised on incorrect law, that argument ought to have been raised in the notice of appeal and canvassed in their written submissions. As they did not do so, I will not consider this submission.

46 As to the Drafting Involvement Finding, the Qin defendants submit that there is no dispute that Ma and Qin were engaged in commercial dealings with each other, but say that the Associate Judge did not "go so far as to express a concluded view as to there being a joint venture".[17] In the absence of a finding that Ma and Qin were engaged in a joint venture at the time that B2B prepared and received the Contested Documents - such that they could be said to have the type of "formal legal relationship" referred to in Tabcorp Holdings Ltd v Victoria[18] ("Tabcorp") and Re SLKALT - it was not open to the Associate Judge to conclude that Ma had a common interest in the Contested Documents. The Qin defendants contend that it is unclear how B2B's involvement in drafting a transaction document could support a conclusion that B2B's advice was provided for the common interest of Ma and Qin, particularly where the evidence is that B2B was retained by Qin and was never instructed by Ma. In this regard, B2B's drafting of the Heads of Agreement was entirely consistent with B2B being engaged solely by, and acting solely for the benefit of, Qin. Further, the Heads of Agreement did not make explicit reference to Ma.[19]

47 The plaintiff submits that the first ground of appeal misunderstands the Associate Judge's decision-making process. They say that, in substance, the finding at paragraph 20 of the Ruling rose no higher than a finding that Ma had presented a prima facie case that Qin had retained B2B to provide "at least some" advice that was for the common benefit of Ma and the Qin defendants, sufficient to justify the exercise of the Court's discretion under s 133 of the Evidence Act to inspect the relevant suite of documents - in order to determine whether none, some, or all of them were in fact prepared for the common benefit of Ma and the Qin defendants. Put another way, the plaintiff submits that the finding at paragraph 20 was a provisional one, and that the Associate Judge made no ruling at that time as to whether the joint clients exception attached to any one or more of the Contested Documents. Rather, his Honour ultimately determined that it was necessary for the Court to inspect documents in order to determine which, if any, documents were privileged.[20]

48 In any event, the plaintiff submits that in making the finding at paragraph 20, the Associate Judge nonetheless relied on evidence that was cogent and uncontradicted by the Qin defendants.

49 As to the Alignment Finding, the plaintiff says that the 2014 Payments constitute the starkest evidence of the alignment of Ma's interests with those of Qin, and note, as the Associate Judge did, that the Qin defendants did not advance any other purpose for those payments.

50 Further, in response to the allegation that the Alignment Finding is inconsistent with the FASOC, the plaintiff says that:

(a) insofar as the receipt request shows any divergence between the parties' interests, the request was said to have been made on or around 8 October 2015, which is seven days before the date at which it is agreed that any common interest ceased to exist. Therefore, the fact that there may have been a divergence of interest in the last week of the relevant period is immaterial; and

(b) the Associate Judge safeguarded against any error by deciding to inspect the documents to ascertain whether each of the documents was given in Qin or the Qin defendants' separate interests. If there was any error in relation to the inspection and the factual conclusions reached as a result of the inspection, that was not raised by a ground of appeal before the Court.

51 As to the Drafting Involvement Finding, the plaintiff says that it was neither necessary nor appropriate for the Associate Judge to have expressed a concluded view as to the existence of a joint venture between Ma and the Qin defendants because a concluded view on that question was not essential to the Court finding that the legal advice from B2B was obtained by Mr Qin for the joint benefit of Ma and the Qin defendants. The approach taken by the Associate Judge was consistent with that of Warren J (as she then was) in Yunghanns v Elfic Pty Ltd (No 2).[21] Additionally, his Honour was cognisant of the interplay of potentially competing interests in the context of establishing a new joint venture, and therefore considered it appropriate to inspect the documents in order to ascertain whether each privileged communication was in fact made for the common interest of Ma and the Qin defendants, rather than for the Qin defendants' separate benefit.

52 The plaintiff further says that even without the additional evidence that B2B expressly sought instructions from, and in relation to the interests of, Mr Qin's Chinese investors - with no suggestion that B2B understood those investors to be anyone other than Ma - there was ample basis for the Associate Judge to be adequately satisfied of the existence of a common interest, so as to justify his Honour's decision to inspect the documents himself.

53 Lastly, the plaintiff says that during a meeting on 6 March 2014, Qin, Ma and various others reviewed a draft of the Heads of Agreement. During that meeting, Qin explained why the party named in the draft document was described as "Qin Group" rather than "Qin Ma Group".

54 The legal advice privilege provided by s 118 of the Evidence Act is in the following terms:

Legal advice

Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of -

(a) a confidential communication made between the client and a lawyer; or

(b) a confidential communication made between 2 or more lawyers acting for the client; or

(c) the contents of a confidential document (whether delivered or not) prepared by the client, lawyer or another person -

for the dominant purpose of the lawyer, or one or more of the lawyers, providing legal advice to the client.

55 Section 124 of the Evidence Act, which operates as an exception to s 118, provides:

Loss of client legal privilege - joint clients

(1) This section only applies to a civil proceeding in connection with which 2 or more parties have, before the commencement of the proceeding, jointly retained a lawyer in relation to the same matter.

(2) This Division does not prevent one of those parties from adducing evidence of -

(a) a communication made by any one of them to the lawyer; or

(b) the contents of a confidential document prepared by or at the direction or request of any one of them -

56 The relevant legal principles pertaining to s 124 of the Evidence Act were correctly summarised by the Associate Judge at paragraphs 9 to 11 of the Ruling.[22] Those paragraphs are reproduced below for ease of reference:

1. In Great Southern Managers Australia Ltd (in liq) v Clarke ("Great Southern"), the Court of Appeal upheld a decision of Sifris J in determining that s 124:

... does not require all of the joint privilege holders to expressly to retain the lawyer: it encompasses cases where one joint privilege holder retains the lawyer for its benefit and for the benefit of the other joint privilege holders.

There was no warrant in principle or authority for a distinction between the rights of those who actively participated in retaining the lawyer, and those who took a passive role in having the lawyer retained by a joint privilege holder for their benefit, nor would such a distinction be consistent with the ordinary meaning, context and purpose of the words used in the section.

1. The question "[w]hether a lawyer has been jointly retained can be determined by looking at the relationship between the parties, the relationship between the parties and the lawyer and the factual context of the retainer/advice". The circumstances in which relationships have been held to support a common interest privilege include matters involving: a company and its directors, related companies, between one joint venture party and another and the joint venture vehicle, putative partners, insurer and insured, and publisher and author. In Tabcorp Holdings Ltd v State of Victoria ("Tabcorp"), Sifris J discussed the relevant principles as follows:

[119] Legal professional privilege may exist as a joint privilege. Such a joint privilege arises most clearly where two or more parties explicitly jointly retain a lawyer in relation to the same matter. A joint privilege can also arise where there is a formal legal relationship between two or more parties and one of those parties communicates with a lawyer for the dominant purpose of obtaining legal advice, and the other parties share an interest in the subject matter of the advice obtained. For example, a trustee/beneficiary relationship may give rise to joint privilege where the trustee receives legal advice for the benefit of the trust.

[120] The holders of a joint privilege have no confidence against each other, but are able to maintain their privilege against others. Further, as ss 118 and 119 of the Evidence Act require the existence of a "confidential communication" or "confidential document", where issues of joint interest arise, the party claiming the privilege must establish that the communications or documents were to be kept confidential from the other parties.

[121] Section 124 of the Evidence Act applies where one party of a joint retainer is involved in proceedings against one or more of the other parties to the joint retainer and the joint retainer relates to a matter connected to the proceedings. The section excludes the operation of ss 118 and 119 of the Evidence Act, which would otherwise prevent the adducing of privileged material at trial. Section 124 is as follows: ...

[122] "Joint retainer" under s 124 has been given an expansive definition. There is no need for specific contractual documents between each of the parties and the lawyer. Nor are all of the parties required to have communicated with, instructed or received advice directly from the lawyer. Rather what is contemplated is that the advice was sought "for the benefit" of the other joint privilege holders. Whether a lawyer has been jointly retained can be determined by looking at the relationship between the parties, the relationship between the parties and the lawyer and the factual context of the retainer/advice.

[123] For example, in Re Doran Constructions Pty Ltd (in liq) [2002] NSWSC 215; (2002) 194 ALR 101, [56]], Campbell J had regard to the fact that the parties were not excluded from the advice given and that they had not sought advice from other lawyers:

In my view, there was a joint retainer in the present case. While the impetus for the transaction was, I accept, that Doran Holdings had been asked by its financiers to clean up its intercompany loan accounts, that 'cleaning up' process required cooperative action on the part of all four companies involved. There is no basis for believing that any of the companies whose cooperation was involved, were excluded from the advice which was given. Certainly none of them sought advice from anyone other than Mr Freeman.

[124] In Farrow Mortgage Services Pty Ltd (in liq) v Webb [(1996) [1996] NSWSC 259; 39 NSWLR 601, 608], Sheller JA looked to the formal legal relationship between the parties finding that:

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.

[125] In Pioneer Concrete (NSW) Pty Ltd v Webb [(1995) 18 ACSR 418, 422-423], Simos J looked to the objectively determined knowledge of the parties and the true substance of the retainer to make a finding of joint retainer as, among other things:

... the defendant did have the view that the communications from the barristers were communications to him as a client, and did believe on reasonable grounds that the lawyers giving advice were his lawyers so as to entitle the defendant to privilege ... the true substance of the arrangements between the lawyers and the company was to the effect that the lawyers would advise as clients both the company and the former directors in their personal capacities although all legal fees were to be paid by the company.

[126] Further, in Clarke v Great Southern Finance Pty Ltd (receivers and managers appointed) (in liq) [[2012] VSC 260, [51]], I had regard to the interest of the relevant party, a beneficiary, in the advice received by the trustee for the benefit of the trust:

It is precisely because of this very relationship that the plaintiffs shared a very real direct interest in the advice and as a consequence are entitled (as all parties agree) to joint privilege over the relevant document.

[127] The Court of Appeal agreed with this finding [[2012] VSCA 207, [21]], stating that:

The section does not require all of the joint privilege holders to expressly retain the lawyer: it encompasses cases where one joint privilege holder retains the lawyer for its benefit and for the benefit of the other joint privilege holders.

[128] In addition to the joint retainer, to attract the application of s 124, there must also be a connection between the proceeding in which the evidence is being adduced and the matter regarding which the parties retained a lawyer. The documents have been discovered and no party suggested there was no relevant connection.

57 Section 133 of the Evidence Act is also relevant for present purposes. That section provides:

Court may inspect etc. documents

If a question arises under this Part relating to a document, the court may order that the document be produced to it and may inspect the document for the purpose of determining the question.

58 Where there is a disputed claim, the power to inspect documents under s 133 is one that the Court "should not be hesitant to exercise".[23] However, in Victoria, the authorities suggest that, generally, the power under s 133 should only be exercised where the party claiming the privilege (or exception) has provided sufficient evidence to substantiate their claim.[24] In Tabcorp, Sifris J stated that in order for the Court to exercise its discretion under s 133, adequate materials must first be put before the Court to allow the claim to be entertained.[25] The party claiming privilege (or an exception to a privilege) cannot delegate to the Court the task of establishing that the privilege exists.[26] Subsequent cases have acknowledged that there may be situations where the Court exercises its discretion under s 133 even where no evidence has been adduced in support of the privilege claim.[27] Every case ultimately turns on its own facts.[28] If the power to inspect documents is exercised, the essential purpose of such an inspection is to determine whether, on its face, the nature and content of the document supports the privilege claim.[29]

Ground 1(a): Did the Associate Judge err in making the Alignment Finding?

59 The Qin defendants submit that the Alignment Finding was made in error because the admissible evidence did not support such a finding. I do not accept this submission.

60 First, although the 2014 Payments are not referred to in Ma's affidavit, the fact that they were made was alleged and admitted on the pleadings. This provides a sufficient basis for the Associate Judge finding that the 2014 Payments were at least made. The Qin defendants attribute their failure to contextualise the 2014 Payments in the Qin affidavit to the fact that the payments were not referred to in Ma's affidavit, which the Qin affidavit was responsive to. However, this ignores defendants' admissions in the Defence. The Qin defendants had the opportunity to show that the 2014 Payments were made for a different purpose. They failed to do so. In circumstances where the Qin defendants did not provide an alternative explanation for the purpose of these payments, it was open to the Associate Judge to decide that the payments made by Ma to the Hickory entities via Qin demonstrated that the parties' interests were probably aligned with respect to the Hickory transaction, as alleged by the plaintiff.

61 I make the additional observation that, at paragraph 16 of the Ma affidavit, the plaintiff states that he and Qin agreed that Qin's existing company, Kuaiyijiu, would be nominated as the "entity to be incorporated" in the Heads of Agreement, so that it would be the sole investor in the project on behalf of both of them. The Qin affidavit did not respond to this paragraph. I am cognisant that paragraph 7 of the Qin affidavit states: "Where I have not responded to particular paragraphs or allegations contained in the plaintiff's affidavit affirmed on 11 April 2023, that does not mean that I agree with the contents of those paragraphs." However, notwithstanding this disclaimer, I consider that Qin's lack of response lends weight to Ma's evidence, in particular where the Ma affidavit comprises only five pages and Qin specifically chose to respond to other paragraphs in the Ma affidavit (namely, paragraphs 9 to 11 and 18).

62 Secondly, insofar as the Qin defendants submit that the Associate Judge erred in making Alignment Finding prior to inspecting the Contested Documents, I reject this submission. I agree with the plaintiff that the findings expressed in paragraph 20 of the Ruling were provisional (i.e. it established that there was a prima facie basis for inspecting the Contested Documents) and did not constitute a ruling that s 124 of the Evidence Act applied to the Contested Documents. That determination was made only when the Court issued the 6 March Order, after the Associate Judge had inspected the Contested Documents. My agreement with the plaintiff is based on the following matters.

63 First, paragraph 20 of the Ruling must be read together with paragraphs 26 to 29, which state as follows:

1. This is a similar position to that discussed in Hallett, where it is impossible to determine which of the documents are privileged and which are not without inspecting them. The Court has power under s 133 of the Evidence Act to order documents to be produced so that they can be inspected for the purposes of determining the question.
2. Mr Ma submits that the documents sought to be inspected were created within the period when it was clear that B2B was acting in his and Mr Qin's interests, and that that conclusion can be reached without inspecting the documents. Counsel for Ma put the submission as follows:

No submission has been advanced to you that you ought to inspect the documents yourself and in our submission, it's not necessary for you to do so but we acknowledge that you have the power to do so if you saw fit to, and perhaps subject to receiving further submissions about that, but we do say that it's not necessary for you to do so. ...

1. The Qin defendants have not made submissions as to whether I should inspect the documents to determine whether they are subject to any common interest privilege.
2. In the circumstances I consider it necessary to inspect the documents to determine which of them are subject to joint privilege. I will invite the parties, in absence of agreement, to provide submissions limited to five pages as to the appropriate date range of documents to be inspected, and direct that the Qin defendants produce to the Court redacted and unredacted versions of the documents for inspection.

64 It appears from the above-quoted passage that the Associate Judge considered it "impossible to determine which of the documents are privileged and which are not without inspecting them". Thus, when read in context, the finding at paragraph 20 that that B2B provided "at least some services for the benefit of the common interests" of Ma and the Qin defendants could not have constituted a binding ruling that joint client privilege applied to the Contested Documents.

65 This conclusion is further supported by an analysis of the procedural history of the matter. On 3 November 2023, the parties filed competing submissions as to the appropriate date range (in accordance with paragraph 29 of the Ruling). On 20 December 2024, the Associate Judge ordered the Qin defendants to produce the documents in the date range for which Ma had contended, so he could inspect them. It was only after Qin produced the relevant documents to the Court, and the Associate Judge inspected them, that he determined that each document within that date range was subject to common interest privilege. The 6 March Order gave effect to this decision. Thus, the effect of the Ruling was to require the Qin defendants to produce the Contested Documents to the Court for inspection, having established a sufficient basis for making such an order.

66 Finally, the above interpretation of paragraph 20 of the Ruling is consistent with the authorities relating to s 133 of the Evidence Act. Based on the principles set out at paragraph 58 above, it is generally appropriate for the Court to first determine whether there is sufficient evidence to establish a prima facie basis for the privilege claim before exercising its discretion to inspect documents under s 133. For example, in Os[30]l v Oswal,30 Daly AsJ agreed with the statements made by Sifris J at paragraph 9[31]of _Tabcorp_31 and stated that, in her case, there was sufficient contextual evidence and detail to establish, at least on a prima facie basis, that the claims for legal professional privilege would prove to be maintainable upon inspection, such as to justify the exercise of discretion [32]der s 133.32

67 When viewed in context of the relevant case law, it is apparent that the finding at paragraph 20 of the Ruling served the purpose of establishing that there was a prima facie basis for inspecting the Contested Documents pursuant to s 133. This did not amount to a final determination of the issue of privilege.

68 I acknowledge the observation made by the Qin defendants that the approach taken by the Associate Judge differed from, for example, Re SLKALT, where Attiwill J published his ruling after considering the evidence and inspecting the relevant documents. In the present case, the Associate Judge published the Ruling prior to inspecting the documents. However, I do not consider that the sequence of events detracts from the conclusion expressed in paragraph 67 above as to the proper characterisation of the finding.

69 For the reasons given above, I accept the plaintiff's submission that the finding at paragraph 20 of the Ruling rose no higher than a finding that Ma had presented a prima facie case that Qin had retained B2B to provide "at least some" advice that was for the common benefit of Ma and the Qin defendants, sufficient to justify the exercise of the Court's discretion under s 133 of the Evidence Act to inspect the Contested Documents. It follows that the Associate Judge did not err in making the Alignment Finding prior to inspecting the Contested Documents.

70 Thirdly, the Qin defendants submit that the Alignment Finding was erroneous because it is inconsistent with the plaintiff's own pleading. It may well be correct to say that B2B was not acting on behalf of the plaintiff at the time the request for the receipt was made. The plaintiff also accepts that there may have been a divergence of interest around that time. However, by reason of my conclusion above that the Alignment Finding merely established that there was prima facie case for the existence of a common interest, which may be proved or disproved upon inspection of the documents, that finding was not in error.

71 At paragraph 19 of the Ruling, the Associate Judge states that "[t]he context of a joint venture raises its own peculiar issues. Lawyers in that context may act for different parties in respect of different interests at different times". For this reason, his Honour deemed it necessary to inspect the documents in order to determine which of them were privileged. The Qin defendants did not allege that the Associate Judge's final determination which was based on his inspection of the Contested Documents was in error. I accept the plaintiff's submissions in that regard.

72 In conclusion, I find that the Qin defendants have failed to establish that the Associate Judge erred in making the Alignment Finding.

Ground 1(b): Did the Associate Judge err in making the Drafting Involvement Finding?

73 The parties do not dispute that the present case is not the situation described in Tabcorp where two parties "explicitly jointly retain a lawyer in relation to the same matter". The Qin defendants submit that in the absence of an explicit joint retainer, there must be a "formal legal relationship" between the parties in order for joint privilege to arise. The gist of their argument is that, because the Associate Judge did not express a concluded view on whether Ma and Qin were engaged in a joint venture, the parties could not be said to have had a "formal legal relationship", and thus there was no common interest privilege.

74 The first point to make is that the two situations which would give rise to a common interest privilege referred to in Tabcorp are not exclusive. Paragraph 119 of Tabcorp states:

Legal professional privilege may exist as a joint privilege. Such a joint privilege arises most clearly where two or more parties explicitly jointly retain a lawyer in relation to the same matter. A joint privilege can also arise where there is a formal legal relationship between two or more parties and one of those parties communicates with a lawyer for the dominant purpose of obtaining legal advice, and the other parties share an interest in the subject matter of the advice obtained. For example, a trustee/beneficiary relationship may give rise to joint privilege where the trustee receives legal advice for the benefit of the trust.

75 The statement that a joint privilege can also arise where there is a formal legal relationship does not necessarily exclude instances where there is no formal legal relationship. This is evident from paragraph 122 of Tabcorp, which states:

"Joint retainer" under s 124 has been given an expansive definition. There is no need for specific contractual documents between each of the parties and the lawyer. Nor are all of the parties required to have communicated with, instructed or received advice directly from the lawyer. Rather what is contemplated is that the advice was sought "for the benefit" of the other joint privilege holders. Whether a lawyer has been jointly retained can be determined by looking at the relationship between the parties, the relationship between the parties and the lawyer and the factual context of the retainer/advice.[33]

76 The key test is whether "the advice was sought 'for the benefit' of the other joint privilege holders". This test may be made out even in the absence of a formal legal relationship between the parties. This proposition is also supported by the following authorities which indicate that the classes of relationship where mutuality of interest can exist are not "rigidly defined".

77 In Cynett Pty Ltd v Souris, O'Callaghan J said:

"Common interest" in this context is not a "rigidly defined concept". See Farrow Mortgage Services Pty Ltd (in liq) v Webb [1996] NSWSC 259; (1996) 39 NSWLR 601 at 609B (Sheller JA, Waddell A-JA agreeing). And, obviously therefore, the categories of relationship in which a sufficient commonality of interest will arise, or is likely to arise, are not closed. They include insurer and insured, a parent company and a wholly owned subsidiary, a company and a director, a liquidator and creditors (among other categories), and, relevantly for present purposes, co-respondents (or co-applicants). See, by way of example, Bankim Thanki QC (ed), The Law of Privilege (Oxford University Press, 3rd ed, 2018) at 301-302 [6.36].[34]

78 The salient point is that the categories of relationship in which a sufficient commonality of interest can arise are not closed. Although O'Callaghan J goes on to provide some examples of relationships which could also be categorised as formal legal relationships, they are merely examples derived from past English cases where a sufficient common interest had been found to exist.[35]

79 The variety of relationships that could give rise to a common interest is also illustrated by Buttes Gas and Oil Co v Hammer (No 3),[36] where the Court gave the following examples:

Owners of adjoining houses complain of a nuisance which affects them both equally. Both take legal advice. Both exchange relevant documents. But only one is a plaintiff. An author writes a book and gets it published. It is said to contain a libel or to be an infringement of copyright. Both author and publisher take legal advice. Both exchange documents. But only one is made a defendant.[37]

Take the case of a block of flats. The landlord takes proceedings against a particular tenant and the dispute concerns a term of the lease which is common to all the tenancies. The tenant might well circulate all other tenants in confidence with a copy of counsel's opinion which he had obtained. If the landlord were then to join another tenant as an additional defendant, could he obtain production of the opinion? I think not.[38]

80 I therefore accept the plaintiff's submission that it was not necessary for the Associate Judge to have found that Ma and the Qin defendants had a formal legal relationship, whether by reason of being engaged in a joint venture or otherwise. Additionally, as discussed above, the Associate Judge only needed to be satisfied that there was a prima facie basis for inspecting the Contested Documents. It was therefore was sufficient that his Honour was satisfied that at least some of B2B's legal advice was sought for the benefit of both Ma and the Qin defendants. The fact that B2B drafted the Heads of Agreement, a document for a transaction which Ma had some degree of involvement in, provided an adequate basis for this conclusion. I note for completeness that the fact that B2B was formally retained by Qin and not Ma is not a determinative factor here. That is because an explicit joint retainer is only one species of joint privilege.

81 Even if I am wrong to accept the plaintiff's submissions on this point, I find that the evidence supported a prima facie view that Ma and Qin were in a formal legal relationship akin to some form of joint venture and Qin communicated with the solicitors about legal matters in which Ma and Qin both shared an interest.

82 The Qin defendants argue that Ma's name does not appear on the Heads of Agreement and therefore B2B's role in drafting that document has no bearing on the issue of whether B2B provided advice for the common interest of Ma and Qin. I do not agree with this submission. That is because I accept the explanation given by the plaintiff for why his name does not appear on the Heads of Agreement. The Ma affidavit states that:

1. On 6 March 2014, I attended a meeting with Mr Qin, Mr Ge Yibing, Mr Guopeng Wang, Mr Hongguang Zhang, Mr Hailin Niu, Mr Zhisen Jiang, Mr Baocheng Yin, Mr Huaizhi Liu, Mr Jintao Zhao, Mr Yubao Wang and Mr Xiaojuan Wang in Jiaozuo City, China. During that meeting, those present - but primarily Mr Qin and I - reviewed and discussed a draft document titled "Heads of Agreement". The document was in both English and Chinese and was projected on a screen from a computer by Mr Ge. I was not given a copy.
2. I believe that the "party" as named in this document was "Qin Group" ... I asked Mr Qin at this meeting why my name did not appear as a party. He said to me that this was because the Australian side (Hickory) had used a collective name, so we needed to use a collective name too, but that the description "Qin Group" ... included both of us.

83 Ma's evidence that Qin intended that the reference to the "Qin Group" in the Heads of Agreement encompass both the Qin defendants and Ma is corroborated by interviews of two other persons who attended the meeting, Mr Hailin Niu and Mr Zhisen Jiang. In a police interview,[39] Mr Niu said that during the meeting on 6 March 2014, Qin specifically explained that the Qin Group referred to both himself and Ma, as it did not look good to write it as the "Qin Ma Group".[40] Similarly, Mr Jiang said in his police interview[41] that when explaining the Chinese contracting party, Qin had pointed to Ma and said: "Our technology company has not yet been established, so we first sign the Heads of Agreement under the name of the Qin Group, which means the two of us. It won't look good to write it as 'Qin Ma Group' as the name."[42]

84 The Qin affidavit does not respond to or challenge either:

(a) paragraphs 12 and 13 of the Ma affidavit; or

(b) paragraphs 12 to 17 of the affidavit of Peter Cash dated 26 May 2023 (which set out the records of the interviews of Messrs Niu and Jiang referred to above).

85 For the same reasons given in paragraph 61 above, Qin's failure to address paragraphs 12 and 13 of the Ma affidavit renders the Court more justified in accepting Ma's evidence on a prima facie basis.

86 In short, I find no error in the Associate Judge's decision regarding the Drafting Involvement Finding.

Ground 2 - did the Associate Judge err in determining that Ma and Qin had a joint interest for the purpose of s 124 of the Evidence Act and that B2B Lawyers provided at least some advice to Qin consistently with that common interest?

87 At paragraph 22 of the Ruling, the Associate Judge stated as follows:

I also note that a common interest privilege may arise where a party believes on reasonable grounds that the lawyer is acting for that party's benefit. Mr Ma in his affidavit affirmed on 11 April 2023 says that he believed B2B were acting for both him and Mr Qin. Mr Ma was not cross-examined on that evidence, nor was it suggested he should not be believed. Accordingly I accept that was Mr Ma's belief. Mr Ma described the reasons he held that belief as including:

(a) discussions at a meeting in June 2013 at which Mr Qin, Mr Ma and representatives of Hickory discussed the possibility of Mr Ma and Mr Qin investing in Hickory;

(b) a conversation at some time after that at which Mr Qin said to Mr Ma words to the effect that "a firm called B2B Lawyers were our lawyers and that they would be responsible for the review and negotiation of the terms of any agreements with Hickory". Mr Qin denies he said this;

(c) discussions with Mr Qin in or after July 2013, in which Mr Qin said to Mr Ma "that he would be responsible for the Australian aspects of the deal, including negotiations with Hickory and dealing with Australian lawyers who would advise and represent us ... I agreed to this proposal." Mr Qin denies Mr Ma's evidence and particularly denies he said B2B would "advise and represent me and [Mr Ma]." Mr Ma also says that there were subsequent conversations which resulted in an agreement that Mr Qin would incorporate a joint venture company in Hong Kong and continue to deal with all matters in Australia. Mr Ma says that as a result of these matters, he did not have any direct contact with B2B;

(d) Mr Ma and Mr Qin attended a further meeting on 6 March 2014 at which they discussed a draft copy of a proposed Heads of Agreement between them. Mr Ma says that he and Mr Qin's interests were described collectively as the "Qin Group". Mr Ma says that Mr Qin said to him this was because Hickory "had used a collective name, so we needed to use a collective name too, but that the description 'Qin Group' ... included both of us";

(e) the Heads of Agreement drafted by B2B named the Hickory Entities for the one part (being individuals and companies) and "Ruibin Qin & entities yet to be incorporated ... (collectively 'Qin')" as the other parties. That is, Mr Ma was not identified separately. Mr Ma says that in September 2015, he met Mr Qin at his home in Henan, China, where they agreed to use a company already established by Mr Qin, Kuaiyiju, as the joint venture company and that Mr Qin would transfer shares in Kuaiyiju to Mr Ma and Mr Ma would travel to Australia to deal with Hickory's transfer of shares to Kuaiyiju. Mr Qin was to contact B2B to assist with relevant formalities;

(f) between 4 September 2015 and 16 October 2016, Mr Ma was in Melbourne during which visit he attended a meeting at B2B's office. Mr Ma says that at this meeting, which was translated for him by Mr Qin's son Peter, they discussed the requirement to transfer shares to Kuaiyiju. Mr Ma says:

I recall specifically saying to the lawyer words to the effect that this transfer was "important". The B2B lawyer's response ... was that, as long as this was something that had been decided by "your side" (by which I understood him to mean Mr Qin and myself), then B2B would do that, as they were just taking instructions from us.

88 Based on the matters set out above, the Associate Judge found, at paragraph 23 of the Ruling, that Ma had a reasonable basis for the belief that B2B was acting in his and Qin's interests. His Honour was satisfied that Ma and Qin had a joint interest for the purposes of s 124 of the Evidence Act and that B2B provided at least some advice to Qin consistently with that common interest.

89 The Qin defendants contend that the Associate Judge erred in making the determination at paragraph 23 of the Ruling, and that such error arose from the Associate Judge having:

(a) based that finding upon Ma's expressed subjective belief that B2B was acting for both Ma and Qin; and

(b) proceeded on the erroneous basis that it is sufficient for the common interest privilege to arise if a party believes on reasonable grounds that a lawyer is acting for that party's benefit, without taking into account whether that belief accords with the true substance of the arrangements between the lawyer(s) and the potential client(s).

90 The Qin defendants say that the subjective belief of a party regarding the role being discharged by a lawyer, however reasonably held, does not establish the existence of legal professional privilege. They acknowledge that in Pioneer Concrete (NSW) Pty Ltd v Webb[43] ("Pioneer Concrete"), Simos J observed that the defendant "did believe on reasonable grounds that the lawyers giving advice were his lawyers so as to entitle the defendant to privilege in respect of the relevant documents".[44] However, they argue that this passing observation was not determinative of the question of whether privilege was in fact established. Rather, that issue was determined by Simos J's assessment "on the evidence ... that the true substance of the arrangements between the lawyers and the company was to the effect that the lawyers would advise as clients both the company and the former directors in their personal capacities".[45] This reflects the approach described at paragraph 122 of Tabcorp, which requires examination of the parties' relationship, their relationship with the lawyer and the factual context of the retainer or advice, not what one party subjectively believed. The Qin defendants further say that in Re SLKALT, there is no suggestion in the analysis of Attiwill J that a subjective belief of a potential client, reasonably based or otherwise, will suffice to discharge the burden of proof.

91 Thus, the Qin defendants argue that, in the present case, the Associate Judge erred by attributing undue weight to Ma's subjective belief (attributed to an account of events that was disputed by Qin and uncorroborated by contemporaneous documents), rather than the true substance of the arrangements between Ma and Qin (which the Associate Judge did not determine) and the relationship between Qin and B2B (where Ma had no relationship with B2B).

92 The plaintiff makes the following points in relation to Ground 2.

93 First, insofar as the Qin defendants contend that the Associate Judge relied only on Ma's evidence of his subjective belief, that is a misreading of paragraphs 22 and 23 of the Ruling. In sub-paragraphs 22(a)-(f), the Associate Judge lists the reasons given by Ma for his belief. Therefore, there were facts which provided an objectively reasonable basis for Ma's belief that were critical to his Honour's conclusion in paragraph 23, not Ma's subjective belief per se.

94 Second, it is also a misreading for the Qin defendants to assert that the Associate Judge held that it is "sufficient" for a joint interest to exist if a party believes on reasonable grounds that a lawyer is acting for their benefit. That is because his Honour's remarks at paragraph 22 of the Ruling were additional to the provisional finding that he had made at paragraph 20, that "at least some" of B2B's legal advice was provided for Ma's benefit, in addition to Qin's. In that regard, the Associate Judge's approach was entirely consonant with Pioneer Concrete, where Simos J founded his conclusion as to the existence of a common interest not only on the defendant's belief on reasonable grounds that advice was being provided to him personally as a client, but also on his consideration of the "true substance of the arrangements".[46]

95 In the alternative, the plaintiff submits that even if the Associate Judge did err in referring to Ma's reasonable belief that B2B was acting for him, as well as Qin, then the error was immaterial given the findings already made in paragraph 20 of the Ruling. He says that, in any event, the discussions between Ma and Qin (summarised at paragraphs 22(a)-(f) of the Ruling) show the existence of an ongoing agreement and understanding between Ma and Qin that Qin was responsible for communicating with B2B to obtain Australian legal advice in respect of the investment that they were jointly making into Hickory. Taken as a whole, the evidence of those objective facts lent further weight to, or at least corroborated, the true substance of the arrangements as between Ma, Qin and B2B, and the existence of a legal relationship whereby Qin communicated with B2B on behalf of, and in the common interests of, himself and Ma.

96 On this ground, I accept the submission of Ma in preference to those of Qin.

97 The Qin parties were wrong to say that the decision by the Associate Justice was based on Ma's subjective belief and was founded on the erroneous basis that a party's belief on reasonable grounds that a lawyer was acting for the party's benefit was sufficient to ground the common interest privilege without any consideration of the true substance of the arrangements between the lawyer and the potential client.

98 The Associate Judge found there was a reasonable basis for Ma's belief that the solicitors were acting for his benefit and he set out that underlying basis. His Honour also reached a view about the alignment between Ma and Qin and the substance of the arrangements between the solicitor and Ma. In both cases, the Associate Judge was sufficiently satisfied to conclude that, at a prima facie level, there was a joint interest between Ma and Qin which justified an examination of the documents over which Qin claimed privilege.

99 The Pioneer Concrete case is relevant in this context.

Counsel for the defendant submitted that his client was entitled to the relief sought on one or more of three bases. He submitted that his client was entitled to claim privilege in respect of the relevant documents firstly on the basis that the relevant advices were given by the lawyers, not only to the company as client, but also to the defendant in his capacity as their client, notwithstanding that the company paid the fees of the lawyers. ... Further, and in the alternative, counsel for the defendant submitted that the defendant was entitled to claim privilege in respect of the relevant documents upon the basis that the defendant believed on reasonable grounds that, in giving their advices, the lawyers were acting for both the defendant and the company as clients. Further, and in the further alternative, counsel for the defendant submitted that the defendant was entitled to claim privilege in respect of the relevant documents, upon the basis that, even if the defendant was not a client of the lawyers, he was nevertheless entitled to claim privilege in respect of the relevant documents upon the basis that he had a common interest with the company which had retained the lawyers.

Accordingly ... I am of the view that the evidence before me in the present case to which I have referred, compels me to conclude that the defendant did have the view that the communications from the barristers were communications to him as a client, and did believe on reasonable grounds that the lawyers giving advice were his lawyers so as to entitle the defendant to privilege in respect of the relevant documents. In this connection I have had particular regard to the various references by the defendant and his fellow directors in their affidavits to his desire and their desire to obtain advice as to their "personal" liability as directors, and to the fact that such advice was in fact given. I do not consider that the fact that the advices were paid for by the company militates against this conclusion, since I am of the opinion, on the evidence before me ... that the true substance of the arrangements between the lawyers and the company was to the effect that the lawyers would advise as clients both the company and the former directors in their personal capacities although all legal fees were to be paid by the company. ...

In other words, in my opinion, the relevant circumstances of the retainer of the lawyers justify the conclusion that the lawyers were acting (at the company's expense) for both the company as client and the defendant personally as client, as well as the conclusion that the defendant believed on reasonable grounds that the lawyers were giving their advice in their capacity as his lawyers. Upon both those grounds the defendant has, in my opinion, joint privilege (jointly with the company) in respect of the relevant documents. [47]

100 In Tabcorp, Sifris J stated that, in Pioneer Concrete, Simos J "looked to the objectively determined knowledge of the parties and the true substance of the retainer to make a finding of joint retainer".[48]

101 Pioneer Concrete is a little ambiguous because it is not entirely clear whether the reasonable belief and the substance of the retainer were each sufficient to justify the finding of a joint retainer or whether they were to be taken together. Justice Simos said that the circumstances of the retainer justified two conclusions - that the lawyers were acting for both the company and the defendant personally and that the defendant believed on reasonable grounds that the lawyers were giving advice as his lawyer. But he also said that "upon both those grounds" the defendant has joint privilege in the relevant documents.

102 I do not need to reach a concluded view on this issue. I am sufficiently satisfied that Ma had reasonable grounds for his belief that the solicitors were acting for both him and Qin in relation to their arrangements with Hickory. This emerges from the Ruling and earlier discussion in this judgment. I am also satisfied that the circumstances of the retainer are such that, on a prima facie basis, the solicitors acted for both Ma and Qin regarding those commercial arrangements and that Ma had a common interest in the advice. This stems from Ma's evidence and unchallenged evidence from other witnesses.

103 The absence of any reference to a potential client's reasonable subjective belief in Re SLKALT does not mean that it is not a valid ground for determining that joint privilege exists, only that it was not one that was raised before the Court in that case.

104 Accordingly, the Associate Judge did not err in making the finding in paragraph 23, which was based on what Ma believed on reasonable grounds. The matters listed in paragraphs 22(a)-(f) of the Ruling may be characterised as evidence of the "true substance of the arrangements", which substantiates the belief held by the plaintiff.

105 Even if I am wrong, the finding at paragraph 23 of the Ruling was made in addition to the finding at paragraph 20, which is to the same effect. Therefore, any error arising from the finding at paragraph 23 is immaterial.

106 For the reasons set out and subject to hearing from the parties, I propose to order that:

(a) the appeal be dismissed; and

(b) the appellants pay the respondent's costs of and incidental to the appeal, such costs to be taxed on a standard basis in default of agreement.

[1] The Hickory entities include Hickory (the third defendant), Michael Argyrou (the fourth defendant), George Argyrou, Hickory Group Pty Ltd, Sync Building Systems Pty Ltd and SMATA Pty Ltd. The Hickory entities are not parties to the privilege dispute between Ma and Qin or this appeal.

[2] Ma v Qin [2023] VSC 598 ("Ruling").

[8] [2024] VSC 250 ("Re SLKALT").

[9] (1936) 55 CLR 499.

[11] Oswal v Carson [2013] VSC 355 at [11].

[13] The 2014 Payments were referred to in the pleadings.

[14] Qin also swore an affidavit on 2 May 2023 which was identical to the 27 July 2023 affidavit.

[15] Ruling (n 2) at [29].

[17] Ruling (n 2) at [20].

[18] [2013] VSC 302 ("Tabcorp").

[19] The parties to the Heads of Agreement were the Hickory entities and "Riubin Qin and entities yet to be incorporated", which did not include Ma.

[20] Ruling (n 2) at [29].

[21] (2001) 1 VR 92 at [20] ("Yunghanns").

[22] The Qin defendants raise no ground of appeal regarding the statement of legal principles in paragraphs 9 to 11 of the Ruling.

[23] Esso Australia Resources Ltd v Commissioner of Taxation (Cth) [1999] HCA 67; (1999) 201 CLR 49 at [52], cited in Re SLKALT (n 8) at [50], Quebani Pty Ltd v McDonald's Australia Ltd [2023] VSC 439 at [32] and Aquasure Pty Ltd v Thiess Pty Ltd (No 2) [2022] VSC 389 at [28] ("Aquasure").

[24] See, eg, Tabcorp (n 18) at [97]; Mortgage Results Pty Ltd v Millsave Holdings Pty Ltd [2017] VSC 704 at [22]-[26], [66]-[75] ("Mortgage Results"); Aquasure (n 23) at [27]-[30]; Krok v Szaintop Homes Pty Ltd (No 1) [2011] VSC 16 at [15].

[25] Tabcorp (n 18) at [97].

[27] Aquasure (n 23) at [28].

[28] Mortgage Results (n 24) at [24]-[26]; Bailey v Director-General, Department of Land and Water Conservation [2009] NSWCA 100; (2009) 74 NSWLR 333 at [62].

[29] Re SLKALT (n 8) at [50], quoting AWB Ltd v Cole (No 5) [2006] FCA 1234; (2006) 155 FCR 30 at [44(12)].

[30] [2016] VSC 386. See also Yunghanns (n 21) at [19]-[20], [40].

[34] [2020] FCA 1754 at [16].

[35] See Bankim Thanki, The Law of Privilege (Oxford University Press, 3rd ed, 2018) at [6.36] and the cases cited therein. With regards to the common law position in the UK, Thanki observed that "[i]n circumstances where courts have been reluctant to set any rigidly defined boundaries, it is perhaps difficult to set down any definitive rules as to when a relationship will such as to give rise to a common interest privilege. However, it is clear from the case law that it is easier to give examples of relationships where a sufficient common interest has been held to exist, rather than to attempt any more general definition": at [6.35].

[36] [1981] 1 QB 223 ("Buttes Gas"). Although the House of Lords reversed this decision, it expressed no opinion about common interest privilege: Buttes Gas and Oil Co v Hammer [1982] AC 888.

[37] Buttes Gas (n 36) at 243 (Lord Denning MR).

[39] This interview was conducted by officers of the Jiaozuo Municipal Public Security Bureau on 31 October 2018: affidavit of Peter Cash dated 26 May 2023 at [11] ("second Cash affidavit").

[40] Second Cash affidavit at [12(d)], Exhibit PEC-7 at 52-3.

[41] This interview was conducted by officers of the Jiaozuo Municipal Public Security Bureau on 10 November 2018: second Cash affidavit at [13].

[42] Second Cash affidavit at [17(b)], Exhibit PEC-7 at 87.

[43] (1995) 18 ACSR 418.

[47] Ibid at 420, 423 (emphasis added).

[48] Tabcorp (n 18) at [125].