Federal Court of Australia

White Oak Commercial Finance Europe (Non-Levered) Limited v Insurance Australia Limited (No 2) [2025] FCA 1062

ORDERS

THE COURT ORDERS THAT:

1.    The second, sixth and seventh respondents have leave to amend their interlocutory application dated 8 April 2025 to the form of the amended interlocutory application handed up during the hearing on 25 August 2025.

2.    The interlocutory application be treated as so amended.

3.    The second, sixth and seventh respondents forthwith file and serve the interlocutory application as so amended.

4.    By 4.00 pm on 10 September 2025, the applicant file and serve an affidavit which identifies with specificity:

(a)    all instant messaging platforms used by each of the custodians identified at [13] of the Affidavit of Ms Rehana Box for work purposes during 2019-2021, including but not limited to, Skype, Microsoft Teams and/or Slack;

(b)    the reasonable searches carried out to identify directly relevant communications from the repositories identified at (a) above, including the details of the search terms and time periods applied; and

(c)    any technology assisted review process utilised in respect of the applicant’s compliance with these orders.

5.    The amended interlocutory application otherwise be dismissed.

6.    The second, sixth and seventh respondents pay 95% of the applicant’s costs of the amended interlocutory application as agreed or assessed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

MOSHINSKY J:

Introduction

1    This is an application by the second respondent, BCC Trade Credit Pty Ltd, the sixth respondent, Tokio Marine & Nichido Fire Insurance Co Ltd, and the seventh respondent, Tokio Marine Management (Australasia) Pty Ltd (together, the BCC/TM Parties), for particular discovery by the applicant, White Oak Commercial Finance Europe (Non-Levered) Limited (White Oak), and for the production of documents in respect of which White Oak has claimed legal professional privilege.

2    The application was initially made by interlocutory application dated 8 April 2025. At the hearing of the application, the BCC/TM Parties relied on an amended version of the interlocutory application that was handed up during the hearing. I gave the BCC/TM Parties leave to amend the interlocutory application to that form. I will proceed on the basis of the amended document.

3    The relief sought by the BCC/TM Parties can be summarised as follows:

(a)    By paragraphs 1, 2 and 3 of the amended interlocutory application, together with categories 1, 2, 3 and 4 of Annexure A to the application, the BCC/TM Parties seek particular discovery pursuant to r 20.21(1) of the Federal Court Rules 2011 of the documents in those categories.

(b)    By paragraph 2 of the amended interlocutory application, together with categories 7, 8, 9 and 10 of Annexure A to the application, the BCC/TM Parties seek the production of unredacted copies of certain documents in respect of which White Oak has claimed legal professional privilege. The BCC/TM Parties contend that White Oak has waived privilege in respect of the documents in those categories.

(c)    By paragraph 3A of the amended interlocutory application, the BCC/TM Parties seek an order that White Oak file and serve an affidavit that identifies certain matters relating to its discovery of communications using instant messaging platforms.

4    At the hearing of the application, the BCC/TM Parties relied on three affidavits of Raylee Joy Hartwell, a partner of Kennedys, the solicitors acting for the BCC/TM Parties in this proceeding. Those affidavits were dated 8 April 2025, 23 May 2025 and 15 July 2025. I note that the second sentence of paragraph 53 of the 8 April 2025 affidavit and pages 617-621 of the Court Book were not read. The BCC/TM Parties also relied on some additional documents contained in the Court Book and on one document that was tendered separately.

5    White Oak relied at the hearing on four affidavits of Rehana Box, a partner of Ashurst Australia, the solicitors acting for White Oak in the proceeding. Those affidavits were dated 19 December 2024, 25 June 2025, 10 July 2025 and 5 August 2025.

6    The application was conducted by both parties on the basis that, apart from the email chain that is the subject of category 10 (see below), it was not necessary for me to read the documents (or parts of documents) over which privilege is claimed by White Oak.

7    Consistently with the order in which the parties addressed the issues in their oral submissions, I will deal with the issues in the following order:

(a)    the privilege issues;

(b)    the application for particular discovery; and

(c)    the issue relating to instant messaging communications.

Privilege issues

8    The BCC/TM Parties seek orders for the production of unredacted copies of the documents in categories 7, 8, 9 and 10 of Annexure A to the amended interlocutory application. The documents in these categories (or parts of those documents) are the subject of privilege claims by White Oak. The BCC/TM Parties contend that White Oak has waived privilege in the legal advice referred to in these documents. The sole basis of this part of the application is waiver of privilege. That the relevant communications are otherwise the subject of legal professional privilege is not in issue.

9    Category 7 refers to three specific documents in respect of which privilege has been claimed (in whole or in part). Category 8 refers to “[u]nredacted copies of any document recording the information that was used or relied upon to prepare the documents referred to in paragraph 7 above”. Category 9 refers to all documents set out in Annexure B to the amended interlocutory application. Annexure B comprises a long list of documents that are described as “Lockton Documents”. Lockton is a firm that provided advice, including legal advice, to White Oak.

10    Category 10 relates to a document that was produced by White Oak in unredacted form as part of the discovery process. White Oak contends that the document discloses legal advice and its production in unredacted form was inadvertent. The document has the identifier WOC.0001.0012.3913 and is a five-page email chain dated 28 to 30 April 2020 (the 28-30 April 2020 Email Chain). A copy of the document with redactions applied to the part over which White Oak claims privilege appears at pages 1188-1192 of the Court Book (and these pages went into evidence). An unredacted version of the document appears at Court Book pages 617-621 (and these pages did not go into evidence). Those unredacted pages were made available for inspection by the Court. As discussed below, I have inspected that version of the document.

11    The issues raised by categories 7, 8 and 9 (on the one hand) are different from those raised by category 10 (on the other). I will therefore start by considering categories 7, 8 and 9, and then deal separately with category 10.

Categories 7, 8 and 9

12    The BCC/TM Parties contend that White Oak has impliedly waived privilege over the documents the subject of categories 7, 8 and 9 in two separate ways, each of which (they contend) justifies the granting of the relief sought:

(a)    First, the BCC/TM Parties contend that White Oak has put in issue its understanding of a legal matter – specifically, its understanding of the legal effect of certain insurance documents that it claims it relied upon when entering the transactions the subject of the proceeding. The BCC/TM Parties principally rely on White Oak’s pleadings, namely its Fourth Amended Statement of Claim dated 7 November 2023 (4ASOC). The BCC/TM Parties also relied in oral submissions on certain documents in evidence and contended that inferences could be drawn from those documents as to the nature and subject matter of the legal advice.

(b)    Secondly, the BCC/TM Parties contend that White Oak has sought to prove its case by affidavit evidence from members of its Investment Committee, who depose to their decision-making process and the information involved in that process. By way of example, the BCC/TM Parties refer to the affidavit of Mr Hackett, particularly at [26] and [31]-[38]. In support of this aspect of their case as to waiver, the BCC/TM Parties rely, in particular, on Commissioner of Taxation v Rio Tinto Ltd [2006] FCAFC 86; 151 FCR 341 (Rio Tinto).

13    There is no real issue between the parties as to the applicable principles concerning implied waiver. In Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd [2013] HCA 46; 250 CLR 303 (Expense Reduction) the High Court (French CJ, Kiefel, Bell, Gageler and Keane JJ) said (at [30]), in relation to implied waiver of privilege, that the courts “will impute an intention [to waive privilege] where the actions of a party are plainly inconsistent with the maintenance of the confidentiality which the privilege is intended to protect”, citing Mann v Carnell [1999] HCA 66; 201 CLR 1 at [29].

14    Both parties in the present case cited Macquarie Bank Ltd v Arup Pty Ltd [2016] FCAFC 117 (Macquarie) and GR Capital Group Pty Ltd v Xinfeng Australia International Investment Pty Ltd [2020] NSWCA 266 (GR Capital). In Macquarie, the Full Court (Middleton, Robertson and Gleeson JJ) stated at [28]-[32]:

28    The correct approach was succinctly described by Yates J in Ferella & Anor v Official Trustee in Bankruptcy (2010) 188 FCR 68 at [65] in the following terms:

... However the question is not simply whether the holder of the privilege has put that person’s state of mind in issue but whether that person has directly or indirectly put the contents of the otherwise privileged communication in issue: see [Rio Tinto] at [65]. Indeed, even the fact that the holder of the privilege makes clear that the advice was relevant or contributed to a particular course of conduct would not be sufficient to waive the privilege unless, possibly, the contents of the legal advice (and not merely the fact of the advice) are specifically put in issue by relying on the contents of the advice to vindicate a claimed state of mind: [Rio Tinto] at [67].

29    In determining whether there has been an implied waiver of privilege, the Court’s focus will be on whether there has been conduct that is inconsistent with the maintenance of confidentiality in the communication over which privilege is asserted. An assessment of whether there has been an implied waiver will be informed by considerations of forensic unfairness.

30    Whilst not to be treated as a statutory formulation, in DSE (Holdings) Pty Ltd v Intertan Inc (2003) 127 FCR 499 (‘DSE’), Allsop J (as his Honour then was) described (at [58]) an implied waiver as arising when:

… the party entitled to the privilege makes an assertion (express or implied), or brings a case, which is either about the contents of the confidential communication or which necessarily lays open the confidential communication to scrutiny and, by such conduct, an inconsistency arises between the act and the maintenance of the confidence, informed partly by the forensic unfairness of allowing the claim to proceed without disclosure of the communication.

31    As the primary judge recognised, a pleading of legal advice may be sufficient to give rise to a waiver of privilege, however a pleading is not necessary for waiver to occur. To this effect, in Hancock v Rinehart [2013] NSWSC 1978, Brereton J noted (at [22]) that the pleading in that case did not deploy or even refer to legal advice or its effect. His Honour noted that it was nonetheless open to conclude that privilege had been waived if other factors of the case warranted such a finding.

32    As stated in Council of the New South Wales Bar Association v Archer (2008) 72 NSWLR 236 at [48], by Hodgson JA, with whom Campbell JA agreed:

It is not enough to bring about a waiver of client legal privilege that the client is bringing proceedings in which the content of the privileged communications could, as a reasonable possibility, be relevant and of assistance to the other party. For the client to do this is not inconsistent with the maintenance of the privilege, and does not give rise to unfairness of the type in question. What would involve inconsistency and relevant unfairness is the making of express or implied assertions about the content of the privileged communications, while at the same time seeking to maintain the privilege. In this respect, it may be sufficient that the client is making assertions about the client’s state of mind, in circumstances where there were confidential communications likely to have affected that state of mind.

(Emphasis added by Full Court in Macquarie.)

15    In GR Capital, Macfarlan JA (McCallum JA and Simpson AJA agreeing) set out the following five guiding principles with respect to issue waiver at [57]:

57    I draw from these authorities the following propositions of present relevance:

(1)    The test is one of inconsistency between the privilege holder’s conduct and its maintenance of the privilege, not one of general fairness or of relevance to an issue in the proceedings.

(2)    Enquiring whether the privilege holder has made express or implied assertions about the contents of the confidential communications, and whether its conduct has therefore “laid open the communications to scrutiny”, assists in ensuring that the court’s focus is on inconsistency rather than simply relevance. If the privilege holder is understood to be asserting something about the contents of the communications, it is but a short step to conclude that it would be inconsistent for it to prevent those contents being scrutinised.

(3)    On the other hand mere relevance of the content of the privileged communications to an issue raised in the proceedings by the privilege holder does not equate to inconsistency – something more is needed. It is of the essence of legal professional privilege that, if maintainable, it entitles a party to withhold potentially relevant documents from inspection by the other party.

(4)    The determination of whether there has been an express or implied assertion about the contents of privileged communications giving rise to a relevant inconsistency is an evaluative decision to be made after consideration of the whole of the circumstances of the case. No hard and fast rules can be formulated. Those circumstances will include the degree of relevance of any advice to the issues in the proceedings, the centrality of the relevant issues in the proceedings and the likelihood of advice having been given, informed, as the High Court said in Mann v Carnell, by considerations of fairness.

(5)    Having considered all those circumstances, the court must decide whether it would be inconsistent with the privilege holder’s conduct for it to maintain privilege. The line between relevance to an issue and inconsistency in this context may be very fine and therefore one on which views might well differ.

16    I will now address each of the two ways in which the BCC/TM Parties present their implied waiver contention in relation to categories 7, 8 and 9.

17    The first way in which the BCC/TM Parties present their implied waiver contention relies primarily on White Oak’s pleadings. In particular, the BCC/TM Parties rely on [190]-[191] of the 4ASOC, where White Oak pleads reliance on the validity and enforceability of the relevant insurance policy and endorsements. In response to the BCC/TM Parties’ submissions, White Oak submitted that these paragraphs of the 4ASOC need to be read in the context of other paragraphs of the 4ASOC.

18    In order to consider the parties’ submissions, it is necessary to have regard to the 4ASOC as a whole. The following is an extract from the 4ASOC setting out the main relevant paragraphs (omitting particulars and mark-up):

M.    Claims against BCC & Brereton

…

Misleading or Deceptive Conduct

105.    By its conduct in entering into and executing each of the BCC/Brereton Documents [defined in paragraph 98 to include the Policy and Endorsements], BCC represented to White Oak that:

a.    BCC was the agent of the Insurer;

b.    BCC was the Corporate Authorised Representative of the Insurer;

c.    BCC was authorised to make an agreement on the terms of each of the BCC/Brereton Documents on behalf of the Insurer as its agent;

d.    each of the BCC/Brereton Documents was binding on the Insurer; or

e.    BCC and the Insurer had no right to rescind or avoid the BCC/Brereton Documents except in accordance with the terms of those documents,

(together, BCC’s Representations).

…

109.    If, which is denied, BCC was not authorised to make an agreement on the terms of each of the BCC/Brereton Documents on behalf of the Insurer as its agent, then:

a.    BCC’s Representations were misleading or deceptive, or likely to mislead or deceive; and

b.    By making BCC’s Representations, BCC engaged in conduct which contravened s 1041H of the Corporations Act and/or s 12DA of the ASIC Act.

…

111.    Each of BCC’s Representations and Brereton’s Representations induced White Oak to:

a.    Enter into the [Master Assignment Agreement] referred to in paragraph 34 above;

b.    Enter into the Loss Payee Endorsement referred to in paragraph 57 above; and

c.    Pay the amounts and acquire the Payment Obligations referred to in paragraph 61 above.

…

M1.    Liability for conduct

…

N.    Claims arising from events in 2020

…

N1.    Events in 2020

…

N2.    BCC’s knowledge

…

N3.    TMMA and TMNF’s knowledge

…

N4.    The Insurer’s knowledge

…

N5.    Non-disclosure to White Oak

176.    At no material time did any of BCC, TMMA, TMNF or the Insurer inform White Oak of any of the following matters:

a.    that in entering into the Policy and some or all of the endorsements thereto, Brereton had not complied with BCC’s ordinary internal procedures for entering into insurance policies and endorsements;

b.    that BCC and TMMA were concerned that Brereton and BCC did not have, or may not have had, actual authority to enter insurance policies or endorsements as agent for the Insurer;

c.    that BCC and TMMA had informed the Greensill Group that Brereton and BCC did not have actual authority to enter into insurance policies or endorsements as agent for the Insurer;

d.    that BCC and TMMA had commenced, were conducting or had conducted the BCC Investigations;

e.    that a purpose of the BCC Investigations was to assist BCC and TMMA to determine whether BCC, the Insurer and/or TMNF were bound by the Policy and the endorsements thereto entered into or agreed by Mr Brereton between June 2019 and July 2020;

f.    that a purpose of the BCC Investigation was to assist BCC and TMMA to determine whether the dealings between Brereton and the Greensill Group, including in relation to the Policy and the endorsements thereto, had involved malfeasance, or the commission of fraud or some other crime;

g.    that BCC and TMMA in fact suspected that the dealings between Brereton and the Greensill Group, including in relation to the Policy and its endorsements, had involved the malfeasance, or the commission of fraud or some other crime;

h.    that BCC had informed the Greensill Group that it did not necessarily accept that it was on risk in relation to endorsements entered into or agreed by Mr Brereton in relation to the Policy between June 2019 and July 2020;

i.    that BCC, on behalf of the Insurer, had informed the Greensill Group that it would not be able to determine its position on whether it was bound by the Policy and any endorsements to the Policy until the BCC Investigation had concluded; and/or

j.    that there was a material possibility that the Policy and endorsements had not been executed within the actual or ostensible authority of BCC to bind the Insurer and/or that BCC and/or the Insurer may not be bound by the Policy and endorsements and may not pay any claim made on the Policy and endorsements.

…

N6.    Misleading or Deceptive Conduct

178.    White Oak refers to and repeats paragraphs 105 to 116 and 120 to 174.

..

181.    BCC’s Representations were:

a.    continuing representations; and

b.    not withdrawn or corrected at any material time.

182.    At all material times, by reason of the matters pleaded in sections N2, N3 and N4 each of the Insurer, TMMA, TMNF and BCC knew or ought reasonably to have known the matters pleaded in paragraph 178.

183.    In the premises pleaded in paragraphs 119 to 174, the circumstances were such as to give rise to a reasonable expectation on the part of White Oak, or a reasonable person in White Oak’s position, that one or more of BCC, the Insurer, TMMA or TMNF would inform it as soon as reasonably practicable if any matter existed that materially qualified or raised a material doubt about the accuracy of BCC’s Representations.

…

185.    Each of the matters pleaded in paragraph 176 (Non-Disclosure to White Oak) materially qualified or raised a material doubt about the accuracy of … BCC’s Representations, because each of those matters materially qualified or raised material doubts as to whether:

a.    the BCC/Brereton Documents had been executed with the actual authority of the Insurer; and

b.    the BCC/Brereton Documents were binding upon the Insurer.

186.    By not disclosing any of those matters each of BCC, TMMA, TMNF and the Insurer represented to White Oak that it and its agents did not know of any matters that materially qualified or raised a material doubt about … BCC’s Representations.

187.    By each of BCC, the Insurer, TMMA and TMNF not disclosing the matters pleaded in paragraph 136 in the circumstances pleaded in paragraphs 179 to 185, they each engaged in conduct which was misleading or deceptive or likely to mislead or deceive.

188.    That conduct was:

a.    in relation to a financial service within the meaning of ss 991A or 1041H of the Corporations Act; and

b.    in trade or commerce and in relation to financial services, within the meaning of s 12DA, 12CA and/or 12CB of the ASIC Act.

189.    In the premises, each of BCC, the Insurer, TMMA and TMNF engaged in conduct that contravened s 1041H of the Corporations Act and/or s 12DA of the ASIC Act.

190.    If any of BCC, the Insurer, TMMA or TMNF had disclosed one or more of the matters in paragraph 176 to White Oak, it would not have:

a.    relied upon the validity or enforceability of the Policy and/or the Endorsements; and

b.    purchased or continue[d] to purchase Payment Obligations as pleaded at paragraph 61.

191.    By reason of the contravening conduct, White Oak:

a.    relied upon the validity or enforceability of the Policy and/or the Endorsements; and

b.    purchased or continued to purchase Payment Obligations as pleaded at paragraph 61.

192.    In the premises White Oak suffered loss or damage by the contravening conduct pleaded in paragraph 189 and 191.

(Emphasis added.)

19    The BCC/TM Parties submit that:

(a)    the various propositions in the 4ASOC that White Oak understood the policy and endorsements to be “valid”, “enforceable”, “binding”, and not subject to a “right to rescind or avoid” are all propositions as to White Oak’s state of mind with respect to legal matters concerning those insurance documents; that is, they relate to an understanding of matters of legal conclusion rather than of mere matters of fact;

(b)    by alleging the counterfactual in 4ASOC [190] – that “if” the matters in 4ASOC [176] had been disclosed to it then it “would not have … relied upon the validity or enforceability” of the policy and endorsements – White Oak has put in issue what it actually knew, understood, and believed about the validity and enforceability of the policy and endorsements; that is because White Oak is alleging, in the counterfactual, that its actual knowledge, understanding and belief would have been diametrically overturned by revelation of the matters in 4ASOC [176]; therefore, the counterfactual cannot make any sense (and cannot be meaningfully tested) without knowing what White Oak’s knowledge and understanding of the validity and enforceability of the policy and endorsements was in the first place; it is only once that knowledge and understanding is ascertained that the effect of the matters in 4ASOC [176] on that knowledge and understanding can be measured and adjudged in the way White Oak contends; and

(c)    the same conclusion follows from the “by reason of” allegation in 4ASOC [191]; White Oak is alleging that the failure to disclose the matters in 4ASOC [176] is the reason it relied upon the “validity or enforceability” of the policy and endorsements – both of which are legal conclusions, and not mere facts; but that allegation cannot be understood in any meaningful way without knowing how White Oak actually came to understand the “validity or enforceability” of the policy and endorsements in the first place, so that the effect of disclosure or non-disclosure of the matters in 4ASOC [176] can be tested and assessed against that baseline; in order to know what role (if any) the matters in 4ASOC [176] had on White Oak’s understanding, it is necessary to see how that understanding came about, and so it is necessary to open up the legal advice which White Oak actually received about the validity and enforceability of the policy and endorsements.

20    In oral submissions, the BCC/TM Parties also referred to documents that provide general context and documents that have been redacted in part for privilege, from which inferences can be drawn about the nature and subject matter of the legal advice. In particular, the BCC/TM Parties relied on the document at pages 405-421 of the Court Book (referred to as a “Screener” document), which is dated 12 March 2020; and the document at pages 422-463 of the Court Book, which is a memorandum headed “Project Irish” dated 23 April 2020. The BCC/TM Parties referred to an extract from the transcript of a UK proceeding involving White Oak (relating to the same subject matter), where reference was made to a document that stated that the White Oak deal team required a “robust legal review” of the policies “to understand the impact of specific language, exclusions, reporting requirements and other risks” (Court Book, page 1655). The BCC/TM Parties submitted that it could be inferred from these documents that the legal advice was directed to the validity or enforceability of the insurance policies. Further, because in some cases the redacted documents referred to a “red/amber/green” classification and the redacted parts followed the word “red”, it was submitted that it could be inferred that the legal advice raised concerns about the policy or transactions.

21    The BCC/TM Parties also referred to [16]-[20] of the affidavit of Steven Ruth dated 4 December 2024 (filed by White Oak in the proceeding) to demonstrate the way in which White Oak’s evidence is presented on this aspect of its pleading.

22    The BCC/TM Parties submit that, having regard to White Oak’s pleadings and the evidence to which the Court was taken during the hearing, there is an implicit assertion by White Oak as to the content of the legal advice, creating an inconsistency with the maintenance of the privilege in the sense described in cases such as GR Capital.

23    In my view, for the reasons that follow, the first way in which the BCC/TM Parties put their implied waiver contention is not made out.

24    While the 4ASOC does put in issue White Oak’s state of mind, the pleading does not refer to legal advice and therefore does not refer to the contents of legal advice. The cases are clear that merely putting state of mind in issue is not sufficient to constitute an implied waiver of privilege: see, eg, Macquarie at [28]. Further, the cases are clear that the relevance of the documents to a matter in issue is not the touchstone of whether there has been a waiver of privilege: see GR Capital at [57(3)].

25    The allegations in [190]-[191] of the 4ASOC need to be seen in the context of the 4ASOC as a whole. The thrust of the case at [178]-[192] is that BCC engaged in misleading or deceptive conduct by making the BCC Representations (which include representations that the relevant policy and endorsements were binding on the insurer and that there was no right to rescind or avoid them except in accordance with the terms of those documents) in circumstances in which there was a reasonable expectation of disclosure (see [183]-[184]) and in circumstances where each of the matters in [176] (which were allegedly not disclosed) materially qualified or raised a material doubt about the accuracy of the representations (see [185]). It is in that context that White Oak pleads, at [190], that if the BCC/TM Parties had disclosed one or more of the matters in [176], White Oak “would not have … relied upon the validity or enforceability of the Policy and/or the Endorsements”. Similarly, it is in that context that White Oak pleads, at [191], that by reason of the contravening conduct, White Oak “relied upon the validity or enforceability of the Policy and/or the Endorsements”. While [190]-[191] contain an implicit assertion that White Oak believed or understood the policy and endorsements to be valid and enforceable, that belief or understanding is referable to the alleged representations and the alleged non-disclosure. White Oak does not rely on the content of legal advice to establish that it held that belief or understanding. Thus, as in Macquarie, it is not the case that White Oak’s belief “must have been informed by … the legal advice” that White Oak received (see Macquarie at [35]).

26    Having regard to the context in which the allegations in [190]-[191] are made, in particular the alleged representations and the alleged non-disclosure, I am not satisfied that White Oak has made any implied assertion about the contents of the legal advice that it received or that it has otherwise “la[id] open the confidential communication to scrutiny”, to adopt the words of Allsop J in DSE (Holdings) Pty Ltd v Intertan Inc [2003] FCA 384; 127 FCR 499 (quoted in Macquarie at [30]).

27    I do not consider the documents to which I was taken during the hearing (that is, the documents in which legal advice has been redacted) to affect the analysis. For there to be a waiver, there needs to be some conduct that gives rise to an inconsistency with the maintenance of the privilege. For the reasons given above, I do not consider White Oak’s conduct (in pleading the 4ASOC) to involve such an inconsistency and the documents do not alter that position. The documents may well support an inference that the legal advice is relevant to an issue in the proceeding, but as noted above, relevance is not the touchstone.

28    For these reasons, the first way in which the BCC/TM Parties put the implied waiver contention is not made out.

29    I now turn to the second way in which the BCC/TM Parties put their implied waiver contention. This relies on the affidavit evidence of members of White Oak’s Investment Committee, which is exemplified by the affidavit of Mr Hackett. In that affidavit, Mr Hackett states at [26] and [31]-[38]:

26.    Investment opportunities are added to the WOGA Investment Committee agenda by way of a request from the ‘Deal Team’, comprising an originator and underwriter, to the administrative assistants of the WOGA Investment Committee. Requests are usually accompanied by either a ‘Screener’ or an ‘Investment Committee Memorandum’. The content of an Investment Committee Memorandum varies depending on the nature of the investment opportunity, however, it will typically include, among other things, a detailed summary of the investment opportunity, a financial analysis of the investment, an analysis of the risks associated with the opportunity, a summary of the underwriting that has been conducted and a summary of any external advice received in respect of the opportunity. A Screener is an abridged version of an Investment Committee Memorandum. The administrative assistant would then upload the Screener or Investment Committee Memorandum to WOGA’s electronic document management systems ‘BoardVantage’ or ‘Salesforce’, or circulate the documents to the WOGA Investment Committee by email using the ‘Whiteoak_Investment_Committee’ distribution email address. These documents would ordinarily be made available to the WOGA Investment Committee at least 48 hours prior to the meeting during which they were scheduled to be discussed. Each of the members of the WOGA Investment Committee had access to Screeners and Investment Committee Memorandums uploaded into either BoardVantage or Salesforce, or emailed directly to them.

…

31.    Since the time I became a member of the WOGA Investment Committee, I have reviewed the Screeners, Investment Committee Memoranda and related material made available to the WOGA Investment Committee in BoardVantage or Salesforce, or sent to me by email, prior to the meeting during which those materials were scheduled to be discussed.

32.    Throughout the Relevant Period, I attended a number of meetings of the WOGA Investment Committee during which the LCL RPA Program was discussed. Screenshots of the Salesforce system showing that the LCL RPA Program was on the agenda during those meetings are set out in the table below and Exhibited in Exhibit DH-1.

[Table omitted]

33.    Prior to each of those meetings, I was either provided with, or had access to, materials that were presented and discussed during the meetings. I have set out those materials in the table below.

[Table omitted]

34.    During the Relevant Period. I participated in a number of votes by the WOGA Investment Committee in relation to the advance of funds from WOGA to White Oak in order to purchase the receivables offered as part of the LCL RPA Program.

35.    In the below table, I have set out documents that record my approval for WOGA to provide funding to White Oak in respect of the LCL RPA Program.

[Table omitted]

36.    During the Relevant Period, as a member of the White Oak UK Approval Committee, I approved increases by White Oak of its investment in the LCL RPA Program on two occasions. I have set out in the table below the documents signed to approve those increases.

[Table omitted]

37.    Prior to making a decision with respect to each of the requests set out in the tables at paragraphs 33, 35 and 36 above, I reviewed and considered the information associated with each of those funding requests.

38.    During the time the LCL RPA Program was being presented to the Investment Committee for approval, the existence of trade credit insurance on the LCL RPA Program to indemnify White Oak in the event of any losses was pivotal to my decision making.

(Emphasis added.)

30    On the basis of those paragraphs, the BCC/TM Parties contend that White Oak has impliedly waived privilege. The BCC/TM Parties rely in particular on Mr Hackett’s statement in [37] that as part of his decision-making process, he “reviewed and considered the information associated with each of those funding requests”.

31    The BCC/TM Parties submit that: critically, Mr Hackett does not seek to explain, identify or otherwise say himself what the “information associated” with the funding requests was; instead, he relies upon the documents he has exhibited to his affidavit to do that work – in effect using those exhibited documents to evidence the “information” he took into account; but he then redacts those very same documents for privilege.

32    The BCC/TM Parties submit that: the present case is to be determined by reference to the distinction identified in Rio Tinto; in that case, waiver arose because the Commissioner had said “the matters, things, circumstances and events taken into consideration [are] those evidenced by the documents listed in [various schedules of documents]” (emphasis added); here, Mr Hackett has said that as part of his decision-making process he “reviewed and considered the information associated with each of [the] funding requests” and has then sought to evidence that “information” by exhibiting documents; that is relevantly identical to Mr Hackett saying (i.e., it is the same as if he had said) that he “reviewed and considered the information evidenced by the exhibited documents”.

33    The BCC/TM Parties submit that: if Mr Hackett had merely said that certain documents containing legal advice were taken into account in his decision making, that would not have waived privilege; that is plain from the authorities, including Rio Tinto; instead, however, Mr Hackett has said that he considered “information” and has sought to identify that information through documents – thus requiring that regard be had to those documents and so laying them open to scrutiny; that, consistent with Rio Tinto, must constitute waiver.

34    In my view, Rio Tinto is distinguishable. In that case, the Full Court of this Court (Kenny, Stone and Edmonds JJ) dismissed an appeal from an interlocutory order that required the Commissioner of Taxation to produce certain documents. At [7] and following, the Full Court set out the procedural history of the matter. The proceedings at first instance were applications filed by Rio pursuant to s 14ZZ of the Taxation Administration Act 1953 (Cth), appealing against objection decisions made by the Commissioner. At [9], the Full Court noted that the docket judge had held that the Commissioner’s statement of facts, issues and contentions (SFIC) must “disclose the facts on which [the Commissioner] has based his assessment and the manner in which he arrived at it”. At [19], the Full Court referred to a letter dated 22 October 2004 from the Commissioner giving further answers to a request by Rio that the Commissioner state the facts, circumstances and matters taken into account in exercising the Commissioner’s discretion under certain provisions (which were specified). At [20], the Full Court set out an extract from the letter, including:

35    As explained at [22] of the Full Court’s judgment, the Commissioner claimed privilege in relation to some of the documents referred to in the Schedules to the letter. The Full Court held that the Commissioner had impliedly waived privilege in relation to eight privileged documents referred to in the Schedules: at [71]-[73]. This was because the Commissioner had not simply said that the eight privileged scheduled communications were relevant to reaching his state of satisfaction or exercising his discretion; nor had he merely said that he took them into account. Rather, “he identified his bases for satisfaction and exercises of discretion as the matters evidenced in the scheduled documents”: at [72].

36    There are several differences between Rio Tinto and the present case. In Rio Tinto, Rio sought to challenge the formation of the Commissioner’s state of satisfaction and exercises of discretion on Avon Downs grounds (see Avon Downs Pty Ltd v Federal Commissioner of Taxation [1949] HCA 26; 78 CLR 353). This necessitated a statement by the Commissioner of the bases for his state of satisfaction and exercises of discretion. It was in this context that the Commissioner’s statement of particulars (which effectively adopted the contents of the scheduled documents) assumed such significance. There is no comparable issue and no comparable procedure in the present case. For these reasons, I consider Rio Tinto to be distinguishable.

37    In the circumstances of this case, I am not satisfied that an inconsistency constituting an implied waiver arises from the statement in Mr Hackett’s affidavit at [37] that, prior to making a decision with respect to each of the requests set out in the tables, he “reviewed and considered the information associated with each of those funding requests”. Read as a whole and in context, it seems to me that this is akin to saying that he took the documents into account. As Rio Tinto held at [72], a statement to that effect is insufficient to constitute an implied waiver of privilege.

38    The BCC/TM Parties’ submissions did not engage in any detail with the documents referred to in category 9 (the Lockton documents). There does not appear to be any separate submission as to implied waiver in relation to these documents.

39    For these reasons, I am not satisfied that there has been an implied waiver of legal privilege in relation to the documents sought by categories 7, 8 or 9.

Category 10

40    Category 10 relates to the 28-30 April 2020 Email Chain, which was produced by White Oak in unredacted form as part of the discovery process. By category 10, the BCC/TM Parties seek production of the following documents:

10.    Unredacted copies of:

a.    any document recording the advice the subject of the 29 April 2020 phone conversation (29 April 2020 Conversation) referred to in [the 28-30 April 2020 Email Chain];

b.    any preparatory communications with, or materials provided to, Lockton or Ashurst in relation to the 29 April 2020 Conversation; and

c.    any previous advices given by Lockton or Ashurst which were referred to in the 29 April 2020 Conversation.

41    The chronology of events in relation to the 28-30 April 2020 Email Chain is (in summary) as follows:

(a)    On 9 August 2024, the 28-30 April 2020 Email Chain was produced by White Oak in an unredacted form as part of the discovery process.

(b)    On 24 March 2025, Kennedys (the solicitors acting for the BCC/TM Parties) sent a 15-page letter that referred (on pages 14-15) to the 28-30 April 2020 Email Chain and set out extracts from the email chain. The letter is at pages 1040-1054 of the Court Book.

(c)    On 16 April 2025, Ashurst (the solicitors for White Oak) sent an email in which they said that disclosure of the email chain in that form had been inadvertent and requested destruction of the document. The email is at page 1074 of the Court Book.

42    In addition, the 24 March 2025 letter from Kennedys was included in an exhibit to the affidavit of Raylee Hartwell affirmed on 4 April 2025 (filed by BCC/TM Parties). That affidavit and the exhibit were included in the Court Book for a case management hearing for the Greensill Proceedings which took place on 10 April 2025. (“Greensill Proceedings” refers to a group of proceedings in this Court involving insurance claims arising from the collapse of the Greensill group. The present proceeding is one of those proceedings.) However, no direct reference was made to the letter at the case management hearing.

43    Pursuant to orders made in the Greensill Proceedings on 30 October 2023, the parties have agreed an electronic exchange protocol (EEP) relating to discovery (Court Book page 1075 and following). Part 3.3 of the EEP provides:

3.3    Privilege clawback

The Parties agree that any inadvertent disclosure of privileged material shall not result in the waiver of any associated privilege, nor result in a subject matter waiver of any kind.

The Parties agree that the disclosure of privileged material, unless explicitly waived, shall be deemed to be inadvertent and the procedure below will apply:

(a)    If, when reviewing another Party’s exchanged documents, it becomes apparent to the receiving Party that some of the disclosed material may be privileged, the receiving Party will:

(i)    immediately suspend review of the apparently privileged materials;

(ii)    not make copies of the apparently privileged material; and

(iii)    as soon as is reasonably practicable and in any event within seven business days of their review of the apparently privileged materials, notify the producing Party of the disclosure of the apparently privileged material in writing.

(b)    Upon receipt of a notification made pursuant to paragraph (a) (iii) above, the producing Party will, as soon as is reasonably practicable and in any event within seven business days of receipt of such notification, either request the destruction of the apparently privileged material, or confirm that the disclosure of the apparently privileged material was intended.

(c)    Upon receipt of a request made pursuant to paragraph (b) above for the destruction of the apparently privileged material, the receiving Party will, as soon as is reasonably practicable and in any event within three business days of receipt of such request, provide to the producing Party a confirmation that all copies of the privileged material have been destroyed.

(d)    The Parties agree that if the producing Party does not provide any response in accordance with paragraph (b) above the disclosure of the apparently privileged material shall be deemed intended.

(e)    If a Party becomes aware that some of its disclosed material is privileged, that Party will, as soon as is reasonably practicable, notify the other Parties in writing of the disclosure of the material and request destruction of the privileged material within three business days of receipt of the request.

(Emphasis in original.)

44    The BCC/TM Parties submit that the EEP required White Oak, upon being alerted to the disclosure, to action a response within seven business days. The BCC/TM Parties submit that White Oak failed to do so.

45    The BCC/TM Parties also submit that White Oak has never sought to explain why it did not adhere to the EEP; nor has it sought to explain how the inadvertent disclosure arose, or even the nature of the inadvertence in the first place.

46    In oral submissions, the BCC/TM Parties invited me to inspect the unredacted version of the 28-30 April 2020 Email Chain (which is at pages 617-621 of the Court Book but is not in evidence) and I have done so.

47    There is no issue between the parties as to the general principles regarding inadvertent disclosure, which were stated by the High Court in Expense Reduction. The issue is the application of those principles to the circumstances of this case.

48    In my view, the evidence establishes that the disclosure of the 28-30 April 2020 Email Chain in its unredacted form was inadvertent. This is established by the affidavit of Ms Box dated 25 June 2025 at [61]. Although no explanation is provided as to how this occurred, there is no contradictory evidence. I therefore accept the evidence that the disclosure was inadvertent. Prima face, therefore, the disclosure of the document did not constitute a waiver of privilege in the legal advice disclosed in the 28-30 April 2020 Email Chain.

49    The question, then, is whether White Oak should be taken to have waived privilege due to the length of time it took for it to state that the disclosure was inadvertent and to seek destruction of the document. In circumstances where the parties have agreed a protocol for discovery that deals with inadvertent disclosure (namely, the EEP), it is appropriate to have regard to that protocol. Paragraph (a) of Pt 3.3 of the EEP imposed certain obligations on the BCC/TM Parties in the circumstances. It can be inferred that, when the BCC/TM Parties were reviewing the 28-30 April 2020 Email Chain in the form produced by White Oak, it became apparent to the BCC/TM Parties that some of the material in that email chain might be privileged. In these circumstances, the BCC/TM Parties were required to: immediately suspend review of the apparently privileged material; not make copies of the apparently privileged material; and, as soon as reasonably practicable and in any event within seven business days of their review of the apparently privileged materials, notify the producing party (White Oak) of the disclosure of the apparently privileged materials in writing. In my view, the BCC/TM Parties failed to do so. The 24 March 2025 letter did not constitute a notification for the purposes of this clause; rather, it constituted an assertion that White Oak had waived privilege in the legal advice referred to in the email chain. In these circumstances, I do not consider that the time taken for White Oak to respond to that letter (which is explained in any event in Ms Box’s affidavit evidence) can be taken to constitute a waiver of privilege.

50    For these reasons, I do not consider that there has been an implied waiver of privilege in relation to the legal advice disclosed in the 28-30 April 2020 Email Chain. Accordingly, I do not consider it appropriate to order production of the documents sought in category 10.

Particular discovery

51    I now turn to the BCC/TM Parties’ application for particular discovery of the documents in categories 1 to 4 of Annexure A to the amended interlocutory application.

52    I note that discovery in this proceeding was ordered to be by way of standard discovery. White Oak largely completed making discovery on 9 August 2024.

53    In broad terms, the BCC/TM Parties challenge the adoption of 1 January 2020 as the ‘start date’ for the discovery provided by White Oak and contend that it should have made discovery in respect of the period 1 November 2018 to 31 December 2019. I note that White Oak is a special purpose vehicle that was only incorporated on 27 March 2020.

54    The BCC/TM Parties contend that, when selecting the 1 January 2020 start date, White Oak did not have regard to the matters raised by the BCC/TM Parties’ contributory negligence defence.

55    In the BCC/TM Parties’ defences to the 4ASOC (together, the Defence), they plead at [112A] that the loss or damage suffered by White Oak (if any) was at least partly a result of White Oak’s own failure to take reasonable care to protect its interests. The Defence alleges that White Oak was contributorily negligent on a number of bases as set out in [112A].

56    The BCC/TM Parties submit that the cumulative effect of their contributory negligence defence is to put in issue the systems, structures and failures of the White Oak Entities (as defined in the Defence), not only in relation to the acquisition of the specific assets the subject of this proceeding, but also in relation to the White Oak Entities’ previous dealings with Greensill and Liberty. The BCC/TM Parties submit that White Oak’s decision to limit discovery to documents produced after 1 January 2020 was not reasonable and should not be allowed to stand.

57    The transactions that are the subject of this proceeding are referred to in the BCC/TM Parties’ submissions as the LCL RPA Programme. I was told (and it appears to be common ground) that those transactions were entered into in December 2020.

58    A major focus of the BCC/TM Parties’ application for particular discovery is a transaction entered into by White Oak ABL LLC (WO ABL) – another entity in the White Oak group of companies – in February 2019. The BCC/TM Parties’ submissions state that WO ABL provided a secured term (one year) syndicated borrowing base facility in the amount of AUD$200 million to Liberty OneSteel (MDR) (the 2019 Transaction). The BCC/TM Parties’ written submissions describe aspects of that transaction at paragraphs 19 to 22. In essence, the BCC/TM Parties submit that documents relating to the 2019 Transaction are directly relevant to the issues raised by the contributory negligence defence because they will show the supervisory mechanisms and other safeguards (such as processes for verifying accounts receivable) that were adopted in connection with the 2019 Transaction, thus highlighting the absence of comparable safeguards in relation to the LCL RPA Programme. That submission is made in circumstances where the 2019 Transaction was entered into by the same corporate group as that which entered into the LCL RPA Programme, and where the same personnel were involved in approving both transactions.

59    I am not satisfied that the documents relating to the 2019 Transaction are directly relevant to the issues raised in the proceeding (specifically, the issues raised by the BCC/TM Parties’ contributory negligence defence). There are substantive differences between the 2019 Transaction and the LCL RPA Programme that mean that the safeguards and supervisory mechanisms adopted for the 2019 Transaction have little, if any, probative weight in establishing what a reasonable investor in the position of White Oak would or should have done in connection with the LCL RPA Programme. The differences between the transactions can be seen from Mr Otte’s evidence in the UK Proceedings at pages 1648 and 1654 of the Court Book. See also page 1633 of the Court Book. The same reasoning applies to categories 1 to 4 more generally.

60    Further, I am not satisfied that discovery of the documents in categories 1 to 4 would be proportionate having regard to the burden and associated cost involved in discovery of those categories.

61    For these reasons, the BCC/TM Parties’ application for particular discovery of categories 1 to 4 is not made out.

Instant messaging communications

62    By paragraph 3A of the amended interlocutory application, the BCC/TM Parties seek an order that White Oak file and serve an affidavit that identifies with specificity:

(a)    all instant messaging platforms used by each of the custodians identified at [13] of the Affidavit of Ms Rehana Box for work purposes during 2019 – 2021, including but not limited to, Skype, Microsoft Teams and/or Slack;

(b)    the reasonable searches carried out to identify directly relevant communications from the repositories identified at (a) above, including the details of the search terms and time periods applied; and

(c)    any technology assisted review process utilised in respect of the Applicant’s compliance with these orders.

63    The discovery orders made by the Court on 30 October 2023 provided (by paragraph 6) for the parties to make standard discovery. Paragraph 9 of those orders required each party to serve on the other parties a list of documents verified by affidavit and an affidavit that identifies with specificity:

(a)    the reasonable searches for directly relevant documents undertaken by that party, including but not limited to any search terms applied; and

(b)    any technology assisted review process utilised in respect of that party’s discovery.

64    Correspondence has been exchanged between the parties as regards the processes adopted by White Oak with respect to discovery of instant messaging communications: see paragraph 42 of White Oak’s submissions. In that correspondence, White Oak provides some information about the approach it adopted in relation to discovery of instant messaging communications. In circumstances where an issue has arisen regarding the approach that has been adopted in relation to this category of documents, I consider it appropriate that White Oak provide an affidavit detailing the approach it adopted. This is consistent with, if not required by, paragraph 9 of the 30 October 2023 orders. I will therefore make an order as sought in paragraph 3A of the amended interlocutory application.

Conclusion

65    For the reasons set out above, I will make an order as sought in paragraph 3A of the amended interlocutory application. Otherwise, the amended interlocutory application is to be dismissed. I will hear the parties on costs.

Associate:

Dated:    2 September 2025

SCHEDULE OF PARTIES