Federal Court of Australia

Greensill Bank AG v Insurance Australia Limited (Privilege Dispute) [2025] FCA 1543

ORDERS

THE COURT ORDERS THAT:

1.    The interlocutory application dated 30 October 2025 is dismissed.

2.    The applicants pay the second respondent’s costs.

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

REASONS FOR JUDGMENT

THAWLEY J:

1    These reasons address a privilege dispute in one of the “Greensill Proceedings”. The general background to the various related proceeding may be found in Greensill Bank AG v Insurance Australia Limited (Anti-Anti-Suit Injunction Application) [2025] FCA 1241.

GBAG’s application for discovery of the CIS Database

2    In June or July 2020, Tokio Marine Management (Australasia) Pty Ltd (TMMA) was advised of an underwriting incident involving BCC Trade Credit Pty Ltd’s Head of Trade Credit, Mr Brereton: CB260 at [6]. TMMA engaged HWL Ebsworth (HWLE) to provide legal advice and assistance: CB261 at [11]. In August 2020, HWLE engaged McGrathNicol Advisory to provide forensic accounting and investigative support: CB261 at [11], CB262 at [14]. McGrathNicol prepared a report for the dominant purpose of assisting HWLE to provide legal advice to TMMA.

3    It is uncontroversial that the McGrathNicol report is privileged. The controversy is whether a copy of a database held by McGrathNicol is privileged.

4    BCC uses a cloud-based “Credit Insurance Suite” application database (CIS Database) to store and access policy data in its day-to-day operations. It is a ‘live’ database. The database is provided by a third party, Tinubu Square SA. Tinubu creates daily back-ups of the CIS Database, and retains those daily back-ups for a month only: CB167 at [15]. Tinubu also creates monthly back-ups and retains those monthly back-ups for a year only: CB168 at [15]. Since 2022, Tinubu has created an annual back-up, but it does not retain any annual back-ups for years before 2022: CB 168 at [15].

5    Mr Whitbourn – a partner at McGrathNicol – gave evidence that:

(a)    after McGrathNicol’s engagement by HWLE in August 2020, McGrathNicol requested access to the CIS Database for the sole purpose of obtaining information to perform the tasks requested of it by HWLE: CB388 at [6]; and

(b)    on 20 August 2020, Tinubu “provided access to the CIS Database [as it stood on 17 August 2020] directly to McGrathNicol by using a secure file transfer service to transfer a copy of the CIS Database backup file … along with a file signature”: CB388 at [7].

6    By an interlocutory application dated 30 October 2025, Greensill Bank AG and Dr Frege (collectively, GBAG) seek orders which would require production of the CIS Database under r 20.32 of the Federal Court Rules 2011 (Cth).

7    The relevance of parts of the CIS Database is not at issue. The importance of the copy of the CIS Database as at 17 August 2020 which McGrathNicol holds is contentious. That copy is perceived by GBAG to have potential significance because the database was later modified.

8    GBAG contends that production of the copy of the CIS Database held by McGrathNicol should be ordered for two reasons. First, GBAG contends that the copy of CIS Database is not protected by common law legal privilege: AS[8]. Secondly, GBAG contends that – if the copy of the CIS Database would otherwise be privileged – the privilege does not subsist because of the circumstances in which it was created, most importantly, that – in the context where litigation was anticipated and TMMA intended to modify the CIS Database – TMMA failed to ensure that an unmodified version of the database was retained: AS[8].

9    For the reasons which follow, production should not be ordered.

The copy of the CIS Database is privileged

10    McGrathNicol requested access to the CIS Database for the sole purpose of fulfilling its engagement with HWLE. McGrathNicol came to hold a “copy” of the CIS Database through Tinubu’s file sharing service transfer: CB388 at [7]. The purpose of giving McGrathNicol a copy of the CIS Database was for McGrathNicol to fulfil its engagement with HWLE so that HWLE could provide legal advice and assistance to TMMA. That was the purpose for which the copy of the CIS Database was created.

11    GBAG submitted that it would be speculative to reach any conclusion about Tinubu’s purpose in creating the copy of the CIS Database held by McGrathNicol. In my view, the circumstances give rise to a compelling inference that the copy held by McGrathNicol was created for a privileged purpose. The better view is that the copy held by McGrathNicol was created when McGrathNicol accessed the file transfer service and transferred or downloaded a copy of the CIS Database to its electronic storage system. However, whether one views the copy as having been created by Tinubu or by McGrathNicol, or partly by both, the copy was plainly created for the purpose of McGrathNicol providing forensic accounting and investigative support to HWLE for TMMA to obtain legal advice and assistance from HWLE.

12    The copy of the CIS Database held by McGrathNicol is privileged irrespective of whether the original CIS Database (as it stood on 17 August 2020) was privileged, because the purpose of creating the copy held by McGrathNicol was to enable TMMA to obtain legal advice and assistance from HWLE: Commissioner of Australian Federal Police v Propend Finance Pty Ltd [1997] HCA 3; 188 CLR 501; Pratt Holdings Pty Ltd v Commissioner of Taxation [2004] FCAFC 122; 136 FCR 357.

Privilege has not been lost by reason of contemplated alterations to the CIS Database

13    If a copy document was brought into existence to enable destruction of the original, whilst the copy was employed in obtaining legal advice, that would involve “gross impropriety”. Privilege in the copy would not subsist in these circumstances and the privilege would not be upheld, because upholding the privilege would allow privilege to be used for a purpose alien to the purpose underlying the privilege: Propend at 570 (Gummow J).

14    GBAG relied on a different formulation of principle. GBAG submitted that if a party copies a non-privileged document with the intention of destroying or modifying the original, the copy would not be privileged even if it was also made for the purpose of obtaining legal advice or for confidential use in litigation. In making this submission, GBAG relied on the following obiter dictum of McHugh J in Propend at 555:

[I]f a party copied a non-privileged document with the intention of destroying the original, the copy would not be privileged even if it was also made for the sole purpose of obtaining legal advice or for confidential use in litigation.

15    Immediately after that sentence, McHugh J explained that this was because, “[i]n that situation, the conclusion is inevitable that one of the purposes of making the copy was to ensure that the maker could safely destroy the original yet at the same time retain a record of the underlying transaction”. When Propend was decided, the test for privilege was whether the sole purpose of the communication was one of obtaining legal advice or for confidential use in litigation, rather than the dominant purpose test which now prevails. Justice McHugh did not address whether a claim for privilege would be upheld where there was both an intention to destroy the original and a purpose of obtaining legal advice which was sufficient for the privilege to apply.

16    By contrast, Gummow J’s statement of principle, the effect of which is recorded at [13] above, does not depend upon a sole purpose test, and addresses the situation where there is both an intention to destroy a document and a copy is employed in obtaining legal advice.

17    Gummow J’s obiter dictum comes closest to addressing the present situation, where the test for privilege is a dominant purpose test. Whilst Gummow J also agreed with McHugh J that there would not be a sole purpose of obtaining legal advice in the circumstances referred to, this was an additional basis supporting his Honour’s conclusion referred to at [13] above, and was not one on which that conclusion depended – see: Propend at 570–1.

18    GBAG expressly did not submit that the making of the copy, and the subsequent claim for privilege, were infected by an improper purpose: AS[53]; T81.41–6. Rather, GBAG submitted that privilege did not subsist by reason of the following four findings which it submitted should be made (T102.17–31):

(a)    TMMA caused the database to be provided to McGrathNicol as part of McGrathNicol’s engagement to assist HWLE to advise TMMA on (amongst other things) how to prepare for anticipated litigation;

(b)    at the time that TMMA caused the CIS Database to be provided to McGrathNicol, TMMA had the intention of modifying the original (which has now occurred);

(c)    it is likely, or at least materially possible, that the modifications are relevant to issues in dispute in these proceedings (which had not commenced at the time of the relevant events); and

(d)    TMMA has failed to ensure that an unmodified version of the CIS Database was preserved in non-privileged form, in a manner that could be disclosed in the proceedings.

19    Privilege in a copy document is not lost merely because the original no longer exists at the time a person seeks production. There are any number of reasons why an original might no longer exist ranging from natural deterioration of the original, through to accidental or negligent destruction or modification, and to intended destruction or modification. The reason Gummow J considered that privilege would not be upheld in respect of a copy document where, at the time the copy was created, it was intended to destroy the original, was that the creation of a copy in order to retain a copy in privileged form only, would involve “gross impropriety” and result in the privilege being asserted for a purpose alien to that for which the privilege exists.

20    Even if the four findings propounded by GBAG were made, that would not be sufficient to conclude that privilege in the copy of the CIS Database as at 17 August 2020 held by McGrathNicol either ceased to subsist or should not be upheld.

21    The dominant (indeed sole) purpose of creating and communicating the copy of the CIS Database as it stood as at 17 August 2020 was for HWLE to provide legal advice to TMMA. Whilst TMMA contemplated that the ‘live’ database would be modified, it was not contended that it had a purpose of retaining a copy of it as at 17 August 2020 for its use, whilst destroying it in that form through modification such that no non-privileged copy existed. It was not established, and I would not infer, that TMMA knew or ought to have known that the modifications it proposed to make to the live database were likely to be materially relevant to issues in future proceedings.

22    GBAG relied on emails referring to the reversal of some Greensill policy data in the CIS Database in September and October 2020, after McGrathNicol came to hold a copy of the CIS Database as it stood at 17 August 2020. These emails indicated that steps were proposed to correct the database after it was recognised that Mr Brereton had not properly input data relating to premiums. The database, being a ‘live’ one, was constantly altered in the course of business. The terms of the emails, and the steps proposed, appear consistent with what one might expect in the events which had occurred.

23    Whilst GBAG implicitly criticised TMMA (or perhaps TMMA and HWLE) for failing to ensure that that an unmodified version of the CIS Database as at 17 August 2020 was preserved in non-privileged form, it did not anchor this implicit criticism to any contended breach of any legal or ethical obligation or even any proved expectation that the CIS Database as at 17 August 2020 would be of special importance in the context of future litigation.

24    These circumstances are not sufficient to establish that the privilege no longer subsists or should not be upheld.

Conclusion

25    It follows that the interlocutory application must be dismissed with costs.

Associate:

Dated: 8 December 2025

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