Newcrest Mining (Wa) Limited v Commonwealth of Australia and the Director of National Parks and Wildlife [1993] FCA 35 (17 February 1993)

FEDERAL COURT OF AUSTRALIA

NEWCREST MINING (WA) LIMITED v. COMMONWEALTH OF AUSTRALIA and THE DIRECTOR OF
NATIONAL PARKS AND WILDLIFE
No. WAG190 of 1992
FED No. 118/93
Number of pages - 3
Legal Professional Privilege

COURT

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
FRENCH J

CATCHWORDS

Legal Professional Privilege - waiver - partial disclosure of privileged materials - implied waiver of associated materials - waiver by joint venture manager - in proceedings brought for benefit of all joint venturers - whether implied waiver by other joint venturers of associated materials - relevance of legal advice to estoppel question -involvement of all joint venturers in relevant decision-making.

Attorney-General (NT) v Maurice [1986] HCA 80; (1986) 161 CLR 475

HEARING

PERTH, 17 February 1993
17:2:1993

Counsel for the Applicant: Sir Maurice Byers QC and

Dr. G Flick

Solicitors for the Applicant and

Plutonic Operations Ltd and Norgold Ltd: Clayton Utz

Counsel for the Respondents: Mr B.J. Shaw QC and
Mr S.G. Gageler

Solicitors for the Respondents: Australian Government
Solicitor

DECISION

ON QUESTION OF LEGAL PROFESSIONAL PRIVILEGE
FRENCH J These present proceedings are brought by Newcrest Mining (WA) Ltd formerly known as BHP Gold Mines Ltd. Newcrest claims to be the transferee from BHP Minerals Ltd of certain mining leases located in the Alligator Rivers region of the Northern Territory including the area known as Coronation Hill. The leases are said to have been held by BHP Minerals from since before 1 July 1978 and transferred to Newcrest on 20 May 1987. BHP Minerals was the manager of the leases on behalf of companies known originally as the South Alligator Joint Venture and later as the Coronation Hill Joint Venture. The other members of the joint venture are Plutonic Operations Ltd and Norgold Ltd. Newcrest has a 45% interest in the joint venture and apparently succeeded BHP Minerals as manager.

2. In the action which, it is common ground, is brought for the benefit of the point venturers, Newcrest claims declarations in relation to proclaimations of the Commonwealth Government purporting to vest land covering the leases in the Director of National Parks and Wildlife. It claims, inter alia, a declaration that it is presently entitled to exercise all rights granted by the mining leases including the right to carry out mining operations on the land over which they exist.

3. The defence raises a number of questions of law and fact to support the proposition that the relevant leases have not been validly renewed of transferred. It is not necessary to canvass them in detail here. In Para.3(g) of the amended defence it is stated that:

"The Mining Leases numbered MLN 19,25 to 28 and 751 to 756
expired on the dates set forth in the second column of
Annexure A to the Amended Statement of Claim and have not
been renewed."

In the amended reply a plea of estoppel is raised based upon various representations said to have been made to Newcrest and BHP Minerals which, it is alleged, led them to continue mining and incurring expenditure in relation to the leases. The representations are said to have been made in correspondence and statements from Ministers of the Crown and senior public servants. In his affidavit, Mr Richard Carter, General Manager-Resource Planning and Development for BHP Minerals from 1982 to 1987, referred to decisions taken to expend monies on the leases in the Coronation Hill area which decisions, he said, were taken in reliance upon various of the pleaded assurances of Ministers and senior officials. The principal decision relied upon for the purpose of the estoppel plea appears to have been taken in September 1986. It was described in Mr Carter's evidence as a "decision to allocate substantial resources and to commence grid drilling." It evidently involved an expenditure of some $5 million. Other decisions referred to to include a decision to continue to allocate resources in September 1987. Although it appears that Mr Carter had significant responsibility in relation to those decisions, it seems on the evidence so far that the members of the joint venture were involved in and contributed to making those decisions.

4. In evidence Mr Carter has disclosed that in deciding to proceed with expenditure on the lease, BHP Minerals took into account legal advice it had received from Ward Keller, a firm of solicitors based in Darwin. Having regard to the disclosure of significant elements of legal advices that had been received, legal professional privilege was waived in relation to the balance. Thus a fuller picture of the considerations operating on the decision-making processes of BHP Minerals can be obtained for the purposes of the estoppel plea. This approach accords with principals enunciated by the High Court in Attorney-General (NT) v Maurice [1986] HCA 80; (1986) 161 CLR 475. Gibbs CJ at 483 said in relation to whether a waiver of legal professional privilege in some material in te possession of a party results in an implied waiver of privilege for associated material:

"(T)he question is whether the disclosure or use of material
that has been made renders it unfair to uphold the privilege
in the associated material, and although the question
whether the material that has been disclosed has been used
in evidence if relevant, it is not decisive."

At 488, Mason and Brennan JJ said:

"The holder of the privilege should not be able to abuse it
by using it to create an inaccurate perception of the
protected communication. Professor Wigmore explains:
"(W)hen his conduct touches a certain point of
disclosure, fairness requires that his privilege shall
cease whether he intended that result or not. He
cannot be allowed, after disclosing as much as he
pleases, to withhold the remainder" (Wigmore, Evidence
in Trials at Common Law (1961), vol.8, par 2327, p
636)
In order to ensure that the opposing litigant is not misled
by an inaccurate preception of the disclosure communication,
fairness will usually require that waiver as to one part of
a protected communication should result in waiver as to the
rest of the communication on that subject-manner: see
Atlantic Insurance Co. v. Home Insurance Co. (1981) 1 WLR
529
Hence, the implied waiver inquiry is at bottom focused on
the fairness of imputing such a waiver."

5. A dispute has arisen in the present case in relation to certain documents produced under subpoena by Plutonic and Norgold. Privilege is claimed by them for these documents on the basis that they "contain communications of legal advice in relation to mining leases held by the Coronation Hill Joint Venture". Their character and prima facie entitlement to such privilege is not in issue. The question which arises here is whether there is to be attributed to Plutonic and Norgold an implied waiver of the privilege by virtue of the disclosures already made by their co-joint venturer and manager in proceedings brought for their benefit. The documents in question, it should be noted, span dates form 1984 through 1989. They include some documents already disclosed by Newcrest and BHP minerals including an important letter of advice from Ward Keller dated 14 June 1984.

6. The threshhold question is whether the principle of implied waiver can extend to materials associated with those disclosed by one party, but in respect of which the privilege vests in another albeit that the other has a common interest in proceedings brought by the disclosing party. Given that the underlying rationale of implied waiver is one of fairness which can overcome the established rationale of legal professional privilege, I think the answer to that threshold question is yes - in principle. The extension of the principle is one, however, to be sparingly applied.

7. In my opinion the present case is one in which fairness mandates that extension. There are two reasons for that. The first is that the action is brought for the benefit of the joint venture as a whole and although there is no direct evidence on the point, it is difficult to imagine that it would have been brought against the wishes of Plutonic and Norgold or indeed without their consent. The second is that the decision-making process relied upon to support the estoppel appears to involve those parties. In these circumstances they cannot, in my opinion, withhold from scrutiny material which may have operated upon that process when partial disclosure has already been made in these proceedings. The claim for privilege cannot be sustained so far as it relates to legal advice in relation to the leases up to and including 1987. It is not clear to me however, that any later material falls within that category and I shall hear from counsel on that question.