Plaintiff v Defendants

1 By summons dated 24 March 2023, the plaintiff ('Mr Ma') applied for orders for the first defendant ('Mr Qin') and second defendant ('Qin Group') (collectively, the 'Qin defendants') to provide inspection to Mr Ma of:

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

(b) the documents listed in pt 2 of sch 1 of the Qin defendants' third list of documents dated 10 March 2023.

2 The documents cover the period May 2013 to May 2016. The Qin defendants claim client legal privilege over these documents on the bases that they are:

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

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

(a) affidavits of Peter Edmund Cash affirmed on 24 March 2023, 26 May 2023 and 7 June 2023;

(b) the affidavit of Huaisheng Ma affirmed on 11 April 2023; and

(c) a written outline of submissions filed on 9 June 2023.

(a) the affidavit of David Lurie sworn on 27 April 2023;

(b) the affidavit of Ruibin Qin sworn on 2 May 2023; and

(c) a written outline of submissions filed on 23 June 2023.

5 In this proceeding, Mr Ma alleges that he entered into a joint venture with Mr Qin for the construction of high rise buildings. Mr Ma alleges that the agreement ultimately entered was between him and Mr Qin on the one hand, and the 'Hickory Entities',[1] on the other. The process involved Mr Qin dealing with lawyers in Australia, namely B2B. Mr Ma subsequently invested several million dollars in the project, which then turned sour. Mr Ma has sought to recover the money he paid. The current issue concerns whether Mr Ma and Mr Qin have a common interest in the advice given by B2B to Mr Qin, such that there is no privilege as between them. Mr Qin says that B2B only ever acted for him and denies any common interest.

6 Section 118 of the Evidence Act 2008 (Vic) ('Evidence Act') describes legal advice privilege as follows:

118 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.

7 Section 119 of the Evidence Act describes litigation privilege as follows:

119 Litigation

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 between the client and another person, or between a lawyer acting for the client and another person, that was made; or

(b) the contents of a confidential document (whether delivered or not) that was prepared -

for the dominant purpose of the client being provided with professional legal services relating to an Australian or overseas proceeding (including the proceeding before the court), or an anticipated or pending Australian or overseas proceeding, in which the client is or may be, or was or might have been, a party.

8 Section 124 of the Evidence Act 2008 provides:

124 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 -

9 In Great Southern Managers Australia Ltd (in liq) v Clarke ('Great Southern'),[2] the Court of Appeal upheld a decision of Sifris J[3] in determining that s 124:[4]

...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.

11 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'.[6] The circumstances in which relationships have been held to support a common interest privilege include matters involving: a company and its directors,[7] related companies,[8] between one joint venture party and another and the joint venture vehicle,[9] putative partners,[10] insurer and insured,[11] and publisher and author.[12] In Tabcorp Holdings Ltd v State of Victoria ('Tabcorp'),[13] Sifris J discussed the relevant principles as follows:[14]

[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) [2002] NSWSC 215; 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.

12 Mr Ma submits that he and the Qin defendants were 'joint clients' of B2B for the purposes of s 124 of the Evidence Act, by reason of their common interest. As such, any privilege that exists in the communications is not a privilege that exists as between them, but rather is a privilege that they both hold as against others.

13 The matters that Mr Ma relies on to establish the common interest are the following:

(a) it is not in dispute that B2B provided legal advice, negotiation and drafting of the Heads of Agreement pursuant to the initial retainer letter with Mr Qin issued in April 2013. The parties to the draft Heads of Agreement were 'Ruibin Qin & entities yet to be incorporated (collectively "Qin")', which Mr Ma submits includes him, on the one hand, and the Hickory Entities on the other. In that sense it is submitted that Mr Ma and the Qin defendants' interests were aligned;

(b) in June 2013, Mr Ma and Mr Qin attended a meeting with representatives of the third defendant ('Hickory') in Melbourne. Mr Ma and Mr Qin agreed to engage lawyers to act on their behalf in further dealings with Hickory. Mr Qin told Mr Ma that B2B were their lawyers and would be responsible for negotiating the terms of any agreements with Hickory;

(c) in July 2013, Mr Ma and Mr Qin agreed that Mr Qin would be responsible for Australian aspects of the deal, including negotiations with Hickory and dealings with Australian lawyers. Mr Ma would be responsible for operations in China;

(d) on 5 December 2013, Mr Qin and his son Peter attended a meeting with the fourth defendant, Michael Argyrou, and George Palatianos of Hickory at the office of B2B. David Lurie and Meileng Tam, both of B2B, attended the meeting. Mr Palatianos' notes include: 'talk to Chinese Partner Mr MA';

(e) on 13 December 2013, Ms Tam wrote to Mr Qin and Peter to ask 'whether your Chinese Investors agree with the release of the first $5.0M against the security of 2% right to shares in [Hickory] and 50% unit ownership in SMATA';

(f) on 22 December 2013, Huiying (Apple) Wang replied on Mr Qin's behalf, confirming that 'Mr Qin and Chinese investors agreed' with that proposal. It is put that against the backdrop of Mr Palatianos' notes of the 5 December 2013 meeting (see para 10(d) above), the reference to 'Chinese investors' was a reference to Mr Ma. Further, B2B's request for instructions about the intentions of the 'Chinese investors', and Ms Wang's reply, indicate an awareness both by Mr Qin and B2B that B2B was giving advice for the benefit of both Mr Ma and Mr Qin;

(g) on 6 March 2014, Mr Ma met Mr Qin and others to discuss the Heads of Agreement. Mr Ma and two others recall that one of the matters discussed was how the 'Qin' parties would be described in the Heads of Agreement.[15] The two other attendees recall that Ma and Qin specifically discussed whether they should be described as the 'Qin Ma Group';

(h) between the signing of the Heads of Agreement in March 2014 and events in Australia in September/October 2015, there were numerous communications between B2B and Mr Qin and his representatives and/or Hickory. These show that both B2B and those parties were aware of Mr Ma's involvement as a co-investor with Mr Qin in the Hickory Group. These include:

(i) an email from Ms Tam to Yao Yao (on behalf of Mr Qin) and Mr Palatianos on 13 June 2014, asking whether Mr Ma should be designated as director of '[China Co]' along with Qin;

(ii) an email from Mr Palatianos to Yao Yao, Ms Tam and Mr Lurie on 24 July 2014, referring to 'Qin & Ma group', and attaching an ownership structure chart that showed 'Qin & Ma' as the Chinese investors; and

(iii) an email from Ms Tam to Mr Palatianos and Poly Kiosses (Hickory's general counsel) on 17 September 2014, requesting both Mandarin and English versions of documentation be made available at signing 'to ensure that Mr Qin and his investors understand and agree to the documents';

(i) there were numerous communications between Mr Qin and his representatives and Hickory that acknowledged Mr Ma's interest in the 'Qin' investment in Hickory under the Heads of Agreement;[16]

(j) Mr Qin admitted to Chinese Public Security Bureau investigators in 2016 that he had agreed with Mr Ma that Mr Ma would 'formally participate in the cooperation project with Hickory', as a consequence of which Mr Ma had caused the first payment of approximately AUD5 million to be transferred to Mr Qin's company in Australia, before it was then paid through B2B's trust account to Hickory;

(k) in a visit to Melbourne in September and October 2015, Mr Ma and Mr Qin attended a meeting at B2B, where they discussed with a male lawyer arrangements for Mr Ma and Mr Qin's interests in the Hickory project to be transferred to a Chinese company named Kuaiyiju. Mr Ma told the lawyer this transfer was important, and the lawyer responded that B2B would do that, as they were just taking instructions from 'your side', which Mr Ma understood as referring to Mr Qin and himself. Mr Lurie has not denied attending a meeting at B2B with Ma; and

(l) neither Mr Qin nor Mr Lurie have given evidence to shed light on who Mr Qin's Chinese investors were, if not Mr Ma. It appears that Ms Tam understood that Mr Ma was Mr Qin's Chinese co-investor, and that she sought to confirm Mr Ma's intentions when drafting and negotiating the Heads of Agreement. Similarly to above, Ms Tam has not given evidence to the contrary.

14 The Qin defendants contend that Mr Ma's premise is unsupported by evidence, and the evidence that exists supports the position that B2B was only ever retained by Mr Qin for his benefit. The Qin defendants rely on the following matters in support of that submission:

(a) the retainer letter issued by B2B to Mr Qin on 23 April 2013 makes no reference to Mr Ma yet provided for signing by Mr Qin;

(b) in his affidavit sworn 27 April 2023, solicitor and partner of B2B Mr Lurie states that the privileged documents were created in the course of work by B2B for Mr Qin, that Mr Ma was never a client of B2B and that B2B never received instructions, or provided advice to Mr Ma;

(c) Mr Qin deposes that he only ever engaged lawyers for his benefit and accordingly B2B were only engaged for his interests;

(d) there is no evidence that Mr Ma sought or received advice or paid B2B for the provision of its services, and further, Mr Ma deposes that he did not meet any personnel of B2B until September 2015. The Qin defendants submit that the plaintiff's capacity in this meeting is unclear and that Mr Ma's attendance does not establish he was a client of B2B;

(e) substantial parts of Mr Ma's affidavit dated 11 April 2023 and filed in support of the summons are inadmissible;

(f) potentially relevant evidence of Mr Ma that is admissible raises no higher than an assertion that Mr Qin described B2B to Mr Ma as 'our lawyers'. Note that Mr Qin denies this evidence;

(g) Mr Ma seeks to rely on hearsay evidence that even if admitted has no weight. This evidence includes a file note of an employee of Hickory, Mr Palatianos, referring to Mr Ma as a 'Chinese Partner', and an email from that employee referring to the 'Qin and Ma Group'. Note that no evidence from this employee has been adduced;

(h) the present matter is distinguished from Great Southern, where there was 'no dispute that the retainer was effected on behalf of the respondents, nor that they were absolutely entitled to receive the advice which is in issue';[17]

15 The Qin defendants also submit that Mr Ma's premise presupposes the outcome of the determination of a contested issue in the proceeding; that is, how the relationship between Mr Ma and Mr Qin is to be characterised.

16 Finally, the Qin defendants contend that Mr Ma's premise is not supported by and is inconsistent with Mr Ma's pleading, as:

(a) the further amended statement of claim filed on 19 May 2023 makes no positive allegation that Mr Ma was a party to the relevant transaction documents and Mr Ma's case, as pleaded, relates only to Mr Ma's subjective understanding;[18]

(b) at paras 34B-34C of the further amended statement of claim, Mr Ma alleges that a document was prepared in response to a request by B2B, and in those paragraphs B2B is described as having acted 'as agent for Qin and Qin Group Holdings' and having made the alleged request 'on behalf of Qin and Qin Group Holdings'; an allegation that undermines the proposition that B2B were retained by and acting on behalf of the plaintiff.

17 As discussed above, a common interest privilege does not require that each of the parties having that privilege retain the lawyer, or pay legal fees, or confer with the lawyer. Nor is it critical who the lawyers consider is their client. For example, where a trustee obtains advice from a lawyer in relation to litigation, the fact that the beneficiary is not a party to the retainer, or does not personally pay fees, or does not attend conferences, or that the lawyer does not think the beneficiary is a client, does not mean that the beneficiary does not have a common interest in litigation advice obtained by the trustee for the purposes of s 124 of the Evidence Act.[19]

18 Accordingly the Qin defendants' submissions relying on those matters are not determinative. The central question is whether the advice was obtained for the benefit of Mr Ma. In Farrow Mortgage Services Pty Ltd (in liq) v Webb,[20] Sheller JA said:[21]

Two or more persons may join in communicating with a legal adviser for the purpose of retaining his or her services or obtaining his or her advice. The privilege which protects these communications from disclosure belongs to all the persons who joined in seeking the service or obtaining the advice. The privilege is a joint privilege. So is it also if one of a group of persons in a formal legal relationship communicates with a legal adviser about a matter in which the members of the group share an interest. Communications by one partner about the affairs of the partnership or a trustee about the affairs of the trust are examples. Implicit in the relationship is the duty or obligation to disclose to other parties thereto the content of the communication. Accordingly no privilege attaches to such communications as against others who, with the client, share an interest in the subject matter of communication.

19 The 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. In Hallett v Endeavour Industries Ltd ('Hallet')[22] Rothman J discussed the legal landscape as follows:[23]

[49] In general, in the formation of a Joint Venture and its operation, two quite distinct relationships with legal advisers can occur. On one hand, each party to the Joint Venture may retain, instruct and receive advice from its own solicitor, under which arrangement draft contracts would be exchanged, amendments suggested and, one would hope, agreement reached and a document executed. In those circumstances, each solicitor acts for one only of the Joint Venture partners.

[50] The other arrangement is one in which the parties to the Joint Venture jointly obtain advice as a consequence of which the one firm of solicitors has two (or more) clients and, to the extent they are joint clients, there is no privilege in relation to documents drafted for one client, which could foreclose the other client inspecting those documents.

[51] There is some significant material before the Court from which an inference could be drawn that the last-mentioned arrangement was one that, at least from time-to-time, operated in relation to the Joint Venture and the Trust for the carrying on of the Olive Tree business.

[52] The parties before the Court have submitted that one or other arrangement applies and each submission assumes the arrangements are mutually exclusive. That may not be the case.

[53] The permutations and combinations or relationships is as variable as the imagination or intention of the parties. While a relationship which allowed a firm of solicitors to act, on the one hand, for a Unitholder and, on the other hand, for the Trust and both Unitholders, may give rise to conflicts or potential conflicts, as long as each of the parties is aware of the totality of the relationship, there is no reason why such arrangements cannot be made.

[54] It is possible that Chapman Thackeray, for some purposes, acted on the instructions of the defendant in its interests and for other purposes acted on instructions conveyed by the defendant in the interests, and for and on behalf, of the Unit Trust and each of the Unitholders. For example, I have no doubt, on the documents before the Court, that if the parties were to have reached agreement on the Unitholders' Agreement it would have been Chapman Thackeray that would have overseen the execution of any documents, the payment of any stamp duty and the like. In such circumstances they would plainly have been acting on behalf of the Unit Trust and/or each of the Unitholders and not just the defendant.

[55] There is no difference in principle between the foregoing example and work that may have been done during the course of discussions and negotiations around the Unitholders' Agreement. Some of the documents and correspondence evidence an approach in which Chapman Thackeray are acting on behalf of parties to these proceedings beyond the defendant.

[56] The onus of proof of the proposition of joint client relationship rests on the plaintiffs who asserts [sic] such a relationship. If, as I suspect, any joint client relationship would subsist for some parts of the work performed by Chapman Thackeray that have given rise to documents that have been sought to be subpoenaed and would not subsist in relation to other documents, it is impossible, without an inspection of the documents in the privileged folder, for the Court to determine whether one or more of those documents are a result of work performed for joint clients or the result of advice to the defendant in a separate capacity and not as part of the relationship, which is a joint client relationship.

[57] The plaintiffs have objected to the Court inspecting the documents. That objection was taken in the context of a submission that it is for the defendants to prove lawyer client privilege under s 118 of the Evidence Act as applied by the Uniform Civil Procedure Rules. The defendant has done that. What is now in issue is whether the documents may be inspected to determine whether any one of them is a document that arises from a relationship in which the solicitors, Chapman Thackeray, are acting for joint clients that include one or more of the plaintiffs or the Trust.

20 In this case I am satisfied that B2B provided at least some legal services for the benefit of the common interests of Mr Ma and the Qin defendants. As noted above, a common interest privilege may arise in such circumstances notwithstanding that Mr Ma is not named on the retainer agreement, or did not pay for any legal services, or did not actually receive any advice. It is 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, with Hickory's interests on the other. I reach that conclusion having regard to the fact, in particular, that in March 2014 and October 2014 Mr Ma provided two payments[24] each of approximately AUD5 million to persons nominated by Mr Qin, which Mr Qin subsequently paid to Hickory's interests. It is not suggested by the Qin defendants that these payments were made for a purpose other than arrangements as between Mr Ma and Mr Qin on the one part, and Hickory on the other. B2B was involved in the process of drafting Heads of Agreement in 2014 in which the parties were the Hickory Entities on the one part and 'Ruibin Qin and entities yet to be incorporated' on the other. That is 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. The Qin defendants submitted that this application impermissibly called for the resolution of the question whether there was a joint venture and therefore the resolution of a question for determination at the final hearing. In finding that Mr Ma has made out a common interest privilege in this regard, I do not go so far as to express a concluded view as to there being a joint venture.[25]

21 Mr Qin pleads that there was no binding agreement entered into until 3 September 2015, but does not provide any coherent explanation as to why Mr Ma and his interests at the time of the payments were not sufficiently aligned. It is not necessarily the case that a joint venture can only arise upon execution of a formal written document.[26] Neither does Mr Qin's assertion of his subjective understanding that he was obtaining advice from B2B for his interests alone preclude the common interest. It does not appear to be disputed that from 2013, Mr Ma and Mr Qin had discussed being involved in a business venture together with Hickory, nor does it appear to be disputed that Mr Ma provided significant funding for the purposes of that venture.

22 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.[27] 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.

23 Based on the above, I am satisfied that Mr Ma had a reasonable basis for the belief that B2B was acting in his and Mr Qin's interests. I am therefore satisfied that Mr Ma and Mr Qin had a joint interest for the purposes of s 124 of the Evidence Act and that B2B provided at least some advice to Mr Qin consistently with that common interest.

24 While I am satisfied that some of B2B's advice was provided for the benefit of Mr Ma and Mr Qin, it is also uncontroversial that at a point in time Mr Qin and Mr Ma's relationship degenerated to a point where their interests became adverse to each other's. Mr Ma submits that the common interest commenced in June 2013 in light of the discussions that were occurring at that time, and came to an end at the time of a meeting in Guangzhou on 16 October 2015, when it became apparent that Mr Qin was raising questions whether Mr Ma had any interest in Qin Group. Mr Ma submits that by that time it became apparent that the relationship between them had deteriorated into a landscape of conflicting interests. As noted above, Mr Qin submits that there was never any joint retainer and that the formal Heads of Agreement was entered into only in September 2015. Mr Qin essentially submits that he and Mr Ma never had a common interest. I note that the current statement of claim pleads that the oral joint venture agreement was entered into '[b]etween about November 2013 and 21 March 2014'. The particulars say the joint venture agreement was 'made orally at a meeting ... on 6 March 2014'. Further, the statement of claim pleads that '[o]n 21 March 2014, a Heads of Agreement was executed to facilitate the Project'.

25 The documents Mr Ma seek to inspect, and in relation to which the Qin defendants claim privilege are:

(a) email communications, memoranda and advices between B2B and the Qin defendants between 15 November 2013 and 10 May 2016 (items 2 to 47 in pt 2 of the Qin defendants' amended second list of documents filed 17 February 2023);

(b) email communications and a memorandum between B2B and the Qin defendants between 16 September 2013 and 12 May 2016 (items 1 to 6 in pt 3 of the Qin defendants' amended second list of documents filed 17 February 2023); and

(c) twenty-four memoranda prepared by B2B between 9 August 2013 and 20 January 2016 and an email chain between B2B, Colin Wise and Daniel Wise on 28 August 2013 (items 1 to 25 in pt 2 of the Qin defendants' amended third list of documents filed 10 March 2023).

26 This is a similar position to that discussed in Hallett,[28] 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.

27 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 Mr 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. It's more commonly necessary and more commonly done in cases where you have long lists - claims to privilege over long lists of documents; documents in certain categories, sub-categories, and the judicial officer ... to whom you might be able to delegate the task, would do is to review those to - look at perhaps a specimen of documents to identify which side of the lines certain documents fall into. The question here is simply a factual one; was B2B Lawyers providing services for Mr Ma's benefit as well as Mr Qin's, and as I've said on the evidence before you and within those time periods, you should comfortably find that they were.

28 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.

29 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.

[1] The 'Hickory Entities' included Michael Argyrou (the fourth defendant), George Argyrou, Hickory Group Pty Ltd, Hickory Building Systems Pty Ltd (the third defendant) ('Hickory'), Sync Building Systems Pty Ltd, SMATA Pty Ltd and 'entities yet to be incorporated': para 15(a) of the further amended statement of claim filed on 19 May 2023 ('further amended statement of claim'). The 'Hickory Group' included Hickory, Hickory Group Pty Ltd, Sync Building Systems Pty Ltd and SMATA Pty Ltd: particulars to para 4(c) of the amended statement of claim.

[2] [2012] VSCA 207; (2012) 36 VR 308 ('Great Southern').

[3] Clarke v Great Southern Finance Pty Ltd [2012] VSC 260 ('Clarke').

[4] Great Southern (n 2) 313-314 [21] (Buchanan and Osborn JJA, Beach AJA).

[5] Ibid 308, 314 [23] (Buchanan and Osborn JJA, Beach AJA) (emphasis added).

[6] Tabcorp Holdings Ltd v State of Victoria [2013] VSC 302, [122] (Sifris J) ('Tabcorp').

[7] Pioneer Concrete (NSW) Pty Ltd v Webb (1995) 18 ACSR 418 ('Pioneer Concrete'); Farrow Mortgage Services Pty Ltd (in liq) v Webb [1996] NSWSC 259; (1996) 39 NSWLR 601.

[8] Re Doran Constructions Pty Ltd (in liq) [2002] NSWSC 215; (2002) 194 ALR 101.

[9] Hallett v Endeavour Industries Ltd [2016] NSWSC 886, [48]-[62] (Rothman J) ('Hallett').

[10] Akcan v Cross [2013] NSWSC 403.

[11] FAI General Insurance Co Ltd v ACN 010 087 573 Pty Ltd (2000) 11 ANZ Ins Cas 61-464; [1999] QCA 524.

[12] Morton v Bolinda Publishing Pty Ltd [2017] FCA 187, [64]-[77] (Burley J).

[14] Ibid [119]-[128] (emphasis added) (citations omitted).

[15] See para 13(a). There is a distinction between the 'Qin defendants' as referred to in this ruling and 'Qin' as defined in the Heads of Agreement.

[17] Great Southern (n 2) 34 [22] (Buchanan and Osborne JJA, Beach AJA).

[18] The Qin defendants rely on para 16 of the further amended statement of claim, which states that '[a]t all relevant times until 16 October 2015, Mr Ma understood that the "Qin" parties included, or would include, himself or a company of which he would be a shareholder.'

[19] Clarke (n 3) [42]-[52] (Sifris J).

[20] [1996] NSWSC 259; (1996) 39 NSWLR 601.

[23] Ibid [49]-[57] (emphasis added).

[24] Mr Ma indicates in his pleading that his 'first payment' was constituted by two amounts, paid in February and March 2014.

[25] Yunghanns v Elfic Pty Ltd (No 2) [2000] VSC 113; (2000) 1 VR 92, [20] (Warren J).

[27] Tabcorp [125] (Sifris J), citing Pioneer Concrete 422-423. See also Pioneer Concrete at 420 citing Farrow Mortgage Services at 1331_._

[28] Hallett (n 9) [56] (Rothman J).