FEDERAL COURT OF AUSTRALIA

McCabe v Mosaic Brands Limited, in the matter of Mosaic Brands Limited (In Liquidation) (Receivers and Managers Appointed) [2026] FCA 1569

ORDERS

THE COURT ORDERS THAT:

1.    By 4 pm on 5 November 2026:

(a)    the parties are to provide the Associate to Markovic J with proposed orders giving effect to these reasons and which address:

(i)    whether a further hearing is required to consider whether, and to what extent, the directors waived their exclusive privilege having regard to the sample categories of documents, and if so, a proposed timetable to hearing; and

(ii)    the question of costs of the proceeding to date; and

(b)    if the parties cannot agree on the form of orders as contemplated by Order 1(a) above, each party is to provide its proposed form of orders together with its submissions, not exceeding two pages in length with size 12 font and 1.5 paragraph line spacing, to the Associate to Markovic J.

2.    If the parties do not reach a consent position on the form orders or it is otherwise necessary to do so, the proceeding will be listed for case management hearing for the purpose of making orders and/or for further case management on 9 November 2026 at 9.30 am.

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

REASONS FOR JUDGMENT

MARKOVIC J:

1    The plaintiffs are the special purpose liquidators (SPLs) of Mosaic Brands Limited ACN 003 321 579 (in liquidation) (receivers and managers appointed) and twelve related entities identified in Annexure A (together with Mosaic, the Mosaic Companies). The SPLs were appointed to the Mosaic Companies by Orders made by this Court on 9 December 2025: see Shaoxing Newtex Imp & Exp Co Ltd, in the matter of Mosaic Brands Limited (in liq) v Strawbridge [2025] FCA 1479 (Moore J).

2    Vaughan Strawbridge, Kathryn Evans, Kate Warwick and David McGrath were appointed as general purpose liquidators (GPLs) of the Mosaic Companies on 1 July 2025, having first been appointed as joint and several voluntary administrators on or around 28 October 2024.

3    The SPLs propose to conduct public examinations about the examinable affairs of the Mosaic Companies under the Corporations Act 2001 (Cth), including in relation to possible claims against current and former directors of the Mosaic Companies and former legal advisors, Hamilton Locke.

4    A dispute has arisen between the SPLs and some of the current and former directors of Mosaic (and in some cases, of the other Mosaic Companies) about whether certain documents (in particular documents relating to or recording safe harbour advice given by Hamilton Locke and/or Deloitte Financial Advisory Pty Ltd), either within the books and records of the Mosaic Companies or which were produced to or obtained by the SPLs, are subject to a claim for legal professional privilege by the directors, to the exclusion of the Mosaic Companies.

5    Accordingly, the SPLs filed an originating process by which they seek a direction pursuant to s 90-15 of the Insolvency Practice Schedule (Corporations) being Sch 2 to the Corporations Act that, in the absence of any director of the Mosaic Companies establishing a valid claim to “exclusive privilege” in relation to any one or more of the documents produced by Hamilton Locke to the SPLs, the SPLs are permitted to inspect and utilise and would be justified in inspecting and utilising those documents, other than those documents in respect of which a valid claim to exclusive privilege has been established.

6    Each of Messrs David Wilshire, Scott Evans, Richard Facioni and Quentin Gracanin, Ms Sue Morphet, Ms Jacqueline Frank and Ms Erica Berchtold, who at various times were or are directors of Mosaic and some or all of the other Mosaic Companies, was granted leave under r 2.13 of the Federal Court (Corporations) Rules 2000 (Cth) to be heard in this proceeding as an interested person without becoming a party and each (with the exception of Ms Berchtold) has filed a notice of appearance. However, while they filed short written submissions, Ms Morphet and Mr Facioni did not appear at the hearing of the originating process, opting to submit to any orders made by the Court (save in relation to the question of costs). Ms Berchtold did not file a notice of appearance and, save for providing her consent to orders made on 13 May 2026, has not appeared in this proceeding to date.

7    The remaining former and current directors, Messrs Wilshire, Evans and Gracanin and Ms Frank (who, for the purposes of these reasons I will refer to collectively as the Interested Persons), contend that the relevant privilege is held jointly by the directors to the exclusion of the Mosaic Companies (exclusive privilege). The SPLs dispute that characterisation and contend that any legal professional privilege is held jointly by Mosaic (or the Mosaic Companies) or, in the alternative, if the directors have exclusive privilege in the material, they have waived any such privilege. In addition, the parties have identified categories of sample documents which the Interested Persons contend are subject to exclusive privilege. Again, that is disputed by the SPLs.

8    At the hearing the parties agreed that I should first determine: (1) whether the directors held legal professional privilege in the safe harbour advice to the exclusion of the Mosaic Companies (the exclusive privilege question); and (2) if so, whether and to what extent that privilege was waived (the waiver question). Questions concerning identified sample documents will be determined separately to the extent necessary.

THE RELEVANT FACTS

Mosaic

9    Mosaic was a large specialty fashion retailer which operated multiple fashion brands through the Mosaic Companies, including Rivers, Millers, Noni B, Katies and Rockmans. In 2000, under its former name, Noni B Limited, Mosaic was listed on the Australian Stock Exchange.

10    In about 2014 Alceon, a specialist advisory, investment and capital solutions partnership, acquired a large shareholding in Noni B Limited pursuant to an off-market takeover offer.

11    The directors and the company secretary of the Mosaic Companies from time to time during the relevant period are included in Annexure A. In summary in relation to the Interested Persons:

(1)    Mr Wilshire, who has been employed by Alceon since 2010 and is currently a managing director of Alceon, was appointed as a non-executive director to the Noni B Limited board (thereafter, Mosaic after its change of corporate name in 2019) on 4 November 2014. He has remained on the Board of Mosaic as a non-executive director. Mr Wilshire was also a non-executive director of another of the Mosaic Companies, Ezibuy Pty Ltd ACN 058 215 722 (in liquidation) (receivers and managers appointed) from 23 June 2017 to 27 April 2022;

(2)    Ms Frank was a non-executive director of Mosaic from 2 May 2019 to 18 June 2024;

(3)    Mr Evans was a director of each of the Mosaic Companies commencing at various dates between 2014 to 2018 until his resignation as a director of those companies on 24 April 2024; and

(4)    Mr Gracanin was a director of Mosaic from 22 February 2023 to 9 October 2025.

12    There were two other directors of Mosaic and/or the Mosaic Companies during the relevant period: Sue Morphet who was a director of Mosaic from 23 February 2015 to 21 June 2021; and Erica Berchtold who was a director from 24 April 2024 to 15 April 2025.

13    In or about early 2020, when the COVID-19 pandemic broke, the members of the Board were Messrs Wilshire, Facioni and Evans, Ms Frank and Ms Morphet. Mr Facioni was the Chair.

Obtaining safe harbour advice

Initial discussions between directors in relation to safe harbour advice

14    In about March 2020, when mandatory lockdowns commenced in Australia, Mr Wilshire became concerned about the likely impact of the lockdowns and the wider COVID-19 outbreaks on the financial performance of Mosaic. Mr Wilshire recalls that at about this time the Mosaic directors discussed seeking appropriate legal advice to ensure compliance with their directors’ duties, particularly the duty imposed on them to prevent insolvent trading and the application of the safe harbour regime in the Corporations Act. Despite being challenged about the timing of these discussions in cross-examination, Mr Wilshire maintained, and I accept, that they occurred at about the time indicated and before Hamilton Locke was approached to provide any advice.

15    Mr Wilshire’s evidence was that the legal advice that he sought concerned his obligations as a director to prevent insolvent trading and, relatedly, safe harbour protection. Mr Wilshire wished to ensure that he complied with his obligations as a director.

16    Ms Frank says that she first became aware of the safe harbour regime in the Corporations Act in or around March 2020. Prior to that time, she had never sought advice about the safe harbour regime set out in s 588GA of the Corporations Act. Ms Frank’s understanding at that time was that the safe harbour regime applies to directors and that it required consideration of whether a plan or course of action by directors might lead to a better outcome for the company than administration or liquidation. She also understood that the company of which she was a director would have an interest in whether such a restructuring plan was available, and that the possibility of a company restructure would be a matter of significance to that company. However, Ms Frank’s view was that advice about the safe harbour regime was for the directors.

17    Ms Frank recalls that as at March 2020 Mosaic’s retail stores across Australia, particularly those located in New South Wales, had earned reduced revenue over the important Christmas and New Year trading period, primarily due to the impact of the “Black Summer” bushfires during December 2019 and January 2020. Similarly, while the COVID-19 pandemic was in its infancy, it had started to have a negative impact on trading in Mosaic’s retail stores.

18    While she cannot recall the precise detail of the discussions that took place between the directors at the time, Ms Frank recalls that because of the matters referred to in the preceding paragraph, in about March 2020, Mr Facioni suggested to the Board that it should consider obtaining legal advice in relation to the safe harbour regime and that he would contact Hamilton Locke, who had acted, and was acting, for Mosaic in relation to other corporate matters at that time, for the purpose of retaining them to provide that advice to the directors.

19    Similarly, in early 2020 Mr Evans had concerns about the trading position of the Mosaic Companies as the COVID-19 pandemic was progressing and because of the impacts of the government mandated lockdowns on retail businesses. He discussed those concerns with his fellow directors, Mr Facioni, Ms Morphet and Ms Frank, and from those discussions, understood that they shared his concerns. At about that time and following these discussions, Mr Evans wanted to ensure that the directors were complying with their legal obligations, given the uncertainty around COVID-19. He believes that Mr Facioni approached Hamilton Locke to obtain legal advice for the directors.

Mr Facioni’s email to Hamilton Locke

20    On 18 March 2020 Mr Facioni sent an email (18 March Email) to the Board, Luke Softa, chief financial officer (CFO) and company secretary of the Mosaic Companies, and Lisa Dadswell, assistant company secretary in which he wrote:

Dear board,

This is purely as a precautionary measure, so please do not be alarmed.

In view of the current environment, which is rapidly changing, I feel it prudent that we all become aware of our obligations, rights and protections as directors of Mosaic Brands as it navigates these uncertain times.

I have asked Hamilton Locke to provide some advice on the Safe Harbour laws which are designed to protect directors in the event of an insolvency. These are summarised below.

I have also asked Hal Lloyd and Nic Edwards to dial in to the board meeting for half an hour tomorrow to walk us through the below and answer any questions.

As I note above, this is purely precautionary, but it would be remiss of us to not prepare for any contingency. No one knows how bad this might get and for how long.

I'm more than happy to discuss individually. Otherwise we will speak tomorrow.

21    The 18 March Email forwarded an email from Hal Lloyd, a mergers and acquisitions partner at Hamilton Locke, to Mr Facioni, copied to two others at Hamilton Locke, Nicholas Edwards, a restructuring partner, and Brent Delaney. Mr Lloyd’s email had as its subject “Safe Harbour – summary” and, insofar as a claim for legal professional privilege is not made over the contents of that email, Mr Lloyd notes that he provides a summary of the safe harbour rules under the Corporations Act.

22    Mr Wilshire explained that Mr Lloyd was a long standing external legal advisor to Alceon and later the Mosaic Companies. He became their “go to” external lawyer and the first port of call for management or the directors when external legal advice was required. If the advice sought was not related to his area of specialty, Mr Lloyd would involve other lawyers at Hamilton Locke to provide the relevant advice.

Board meeting on 19 March 2020

23    Messrs Lloyd and Edwards attended the Board meeting which took place on 19 March 2020 (19 March Board Meeting) by telephone to provide advice on the safe harbour regime. Mr Wilshire says that from that point forward, Mr Edwards was the directors’ primary legal advisor in relation to the application of the safe harbour regime.

24    Ms Frank also attended the 19 March Board Meeting. She recalls that:

(1)    she met Messrs Lloyd and Edwards at that meeting for the first time. They said that they were solicitors with Hamilton Locke and Mr Edwards introduced himself as having expertise in the areas of insolvency and restructuring;

(2)    Messrs Lloyd and Edwards attended part of the meeting to discuss the safe harbour regime;

(3)    Messrs Lloyd and Edwards provided a general overview of the safe harbour regime to the Mosaic directors; and

(4)    the directors agreed that it would be appropriate for them to seek advice pursuant to the safe harbour regime, in particular from Mr Edwards, as a precaution.

25    Mr Evans recalls that at the 19 March Board Meeting it was resolved that the Mosaic Companies enter safe harbour and that in the weeks following that meeting Mr Facioni, and sometimes other directors, liaised with Hamilton Locke about safe harbour issues.

26    Mr Wilshire accepted that there was no resolution passed at any Board meeting for the Chair or any other person on behalf of the directors to retain Hamilton Locke to provide the safe harbour advice to the directors.

27    Mr Wilshire cannot recall whether there was a specific retainer for Mr Edwards’ engagement, or whether Mr Edwards had ever formalised the engagement to provide legal advice on the safe harbour regime in writing. However, that was a matter with which Mr Wilshire would not normally concern himself in his role as a non-executive director. At the time, he considered that to be a matter that Hamilton Locke would handle to ensure that the paperwork recorded what they were being asked to do. That is, Mr Wilshire expected that Hamilton Locke’s engagement would be properly recorded.

28    To like effect, Ms Frank cannot recall seeing a written engagement between the Board and Hamilton Locke, or Messrs Lloyd or Edwards, for the provision of advice from them to the Board pursuant to the safe harbour regime. Ms Frank assumed that any necessary paperwork and formalities would be taken care of by Hamilton Locke or Messrs Lloyd or Edwards. At the time of the 19 March Board Meeting Ms Frank understood, and it remains her understanding, that: (1) claims for insolvent trading are made against directors personally; (2) the purpose of obtaining advice under the safe harbour regime was to protect directors, like herself, from insolvent trading claims; (3) Hamilton Locke was being retained to advise her and the other Mosaic directors about the safe harbour regime; and (4) advice about the safe harbour regime would be provided only to the Board members in their personal capacity and not also to Mosaic, as the advice had no relevance to Mosaic or any of the Mosaic Companies.

29    Mr Wilshire did not consider that any of the Mosaic Companies was a party to any retainer with Hamilton Locke. The advice that he sought in relation to safe harbour and other issues relating to compliance with directors’ duties concerned his position as a director. In all of his dealings with Hamilton Locke, and in particular Messrs Lloyd and Edwards, on issues that related to directors’ duties (especially safe harbour), Mr Wilshire understood that he was dealing with them in his capacity as a director.

Halting safe harbour advice

30    On 25 March 2020 the Federal Government’s safe harbour temporary relief came into effect. Mr Evans recalls that as a result the intended engagement with a chosen safe harbour advisor, did not progress further until a later point in time when the temporary relief ended. Similarly, Ms Frank recalls that in early 2020 the Federal Government introduced safe harbour measures that meant it was not necessary to receive advice pursuant to the safe harbour regime from Hamilton Locke while those measures were in effect.

31    Mr Edwards and his team continued to provide advice to the directors of Mosaic from 2020 to 2024. During that period, Mr Wilshire understood that it was the directors who were the recipients of legal advice in relation to the safe harbour regime, as opposed to the Mosaic Companies. He held this view because, as set out above, he understood that the safe harbour regime was a defence available to the directors against an action instigated on behalf of the relevant company, rather than the company itself.

Interested Persons’ understanding of the retainer with Hamilton Locke

32    Mr Wilshire’s evidence is that: Mr Edwards never advised Mr Wilshire that his legal advice was being provided to the Mosaic Companies, rather than to the directors, or jointly to the directors and the Mosaic Companies; no solicitor from Mr Edwards’ team suggested that Mr Wilshire was not the intended recipient of Mr Edwards’ or Hamilton Locke’s legal advice in relation to the safe harbour regime; and at no point in time did Mr Edwards (or his team at Hamilton Locke) advise him that there were any risks about the way Hamilton Locke structured its engagement with the directors to provide advice in relation to the safe harbour regime. Conversely, in cross-examination, Mr Wilshire accepted that Mr Edwards never informed him that his advice was being provided solely to the directors, to the exclusion of the Mosaic Companies.

33    Mr Wilshire does not recall any discussion between the directors about the desirability of any safe harbour advice given to the directors personally being included in the minutes of Board meetings. He said that the directors sought advice from Hamilton Locke for themselves and that they followed that advice in terms of documenting the advice and proceeding.

34    In addition to the evidence recorded at [28] above, Ms Frank recalls that at a Board meeting which took place on 16 December 2020:

(1)    Messrs Edwards and Lloyd again attended part of that meeting and reiterated the nature of the safe harbour regime;

(2)    although she cannot recall the precise words spoken, Ms Frank recalls that Messrs Edwards and Mr Lloyd said that they would be available to discuss any specific questions the directors might have about how the safe harbour regime operated. Their offer to provide advice to individual directors was consistent with Ms Frank’s understanding that advice provided pursuant to the safe harbour regime was being provided to the directors in their personal capacity; and

(3)    the Board discussed, and agreed unanimously, to engage Hamilton Locke and Deloitte to act as its advisors pursuant to the safe harbour regime.

35    According to Ms Frank over the course of 2020 to 2024, Mr Edwards, Hamilton Locke and Deloitte provided advice to the Board from time to time in relation to the safe harbour regime. They regularly attended part of Board meetings to provide that advice. Ms Frank understood that the advice provided was confidential advice provide to Board members personally and was not advice provided to the Mosaic Companies. She was never told by anyone that the advice was also being provided to Mosaic or any of the Mosaic subsidiaries.

36    Mr Evans’ evidence is that from time to time between 2020 and 2024, he and the other directors engaged with Hamilton Locke in relation to the safe harbour regime and Hamilton Locke provided advice in relation to that issue. Mr Evans understood that advice was provided to the directors (and not to Mosaic or any of the Mosaic Companies) because it was about the directors’ compliance with their legal obligations as directors of Mosaic and the Mosaic Companies.

37    As set out above, Mr Gracanin became a director of Mosaic in 2022. His solicitor, Orlaifth McCoy, gave evidence on information and belief that Mr Gracanin had informed her that:

(1)    Mr Facioni introduced him to Mr Edwards of Hamilton Locke and Mr Marsden of Deloitte on 23 February 2023. This was Mr Gracanin’s first Mosaic Board meeting at which he was appointed as a director of Mosaic. Mr Gracanin’s recollection is that Messrs Edwards and Marsden were introduced by Mr Facioni on the basis that they were “advising the board in relation to safe harbour”; and

(2)    his understanding was that, from that time and at all subsequent times, Messrs Edwards and Marsden were giving the safe harbour advice for the benefit of all the individuals who constituted the directors of Mosaic at the time, including him and other directors who joined the Board. He sought and received the safe harbour advice from Messrs Edwards and Marsden on that basis.

The role of Deloitte

38    Based on his initial understanding of the safe harbour regime, Mr Wilshire understood that the directors were required to obtain advice from an expert able to analyse and validate that their restructuring plan was a better outcome (than administration or liquidation) for Mosaic. Mr Wilshire understood that in about March 2020 Mr Edwards retained Deloitte as the expert to assist him and Hamilton Locke to provide safe harbour advice to the Board. This aligns with Mr Evans and Ms Frank’s recollection.

39    Mr Wilshire recalls that Deloitte was directly engaged by Hamilton Locke at various times in the period from 2020 to 2024 in order to assist Hamilton Locke in providing its advice. Throughout that period Mr Wilshire’s primary contact at Deloitte was Sam Marsden, partner. Mr Marsden and his team were specifically engaged by Mr Edwards on each occasion that Mosaic entered safe harbour. At no time did Mr Wilshire seek to engage Deloitte in connection with any safe harbour advice on behalf of the Mosaic Companies. Further, on each occasion that Hamilton Locke engaged Deloitte, Mr Wilshire understood that Deloitte was engaged as part of the directors’ retainer with Mr Edwards and Hamilton Locke for the purpose of assisting Mr Edwards and his team to provide safe harbour advice to the directors.

40    In the same period, that is, from 2020 to 2024, Mr Wilshire recalls viewing various engagement letters between Hamilton Locke and Deloitte which referred to Deloitte’s work informing Hamilton Locke’s legal advice to the directors of Mosaic. That is borne out, in part, by the following correspondence.

41    A draft letter dated 4 December 2020 from Deloitte to Mr Edwards of Hamilton Locke (some parts of which are subject to a claim for legal professional privilege) included:

1    Introduction

Thank you for asking Deloitte Financial Advisory Pty Ltd (“Deloitte”) to provide services as detailed in this engagement letter to you to feed into and be part of your legal advice to the directors of the Group.

This letter and our standard terms and conditions (the “Terms”), which are enclosed with this letter, set out the basis on which we will provide our services to you.

2    Services

We understand that you have been engaged to provide Safe Harbour advice to the directors of the Group and you have asked us to provide the following limited services to you:

….

For the avoidance of doubt, this engagement is exclusively between the Group (with you authorised to instruct us on its behalf) and ourselves, solely for the purpose of allowing you to provide legal advice, including Safe Harbour advice, to the Group.

Deloitte agrees not to engage in separate communications with the Group management (including persons authorised by the Group to issue instructions to you) without your involvement or participation.

…

5    Responsibilities

In addition to the responsibilities which are described in the Terms:

•    You are responsible for providing the ultimate legal advice to the Group

•    The Group is responsible for preparing and providing forecasts, including underlying assumptions, to us at the commencement of our work.

•    Management of the Group will make the required personnel including business representatives and contractors available. Should the required resources not be made available in a timely manner, we may mutually agree to allocate further Deloitte resources to the program to maintain the program schedule. This may result in variations to the above fees, Such changes will be reviewed and approved with you prior to action being taken.

You acknowledge that our ability to deliver the Services is dependent on the Group meeting its responsibilities, as well as the Group providing us with instructions and making timely decisions. Any deliverable provided to you, whether it be oral or written, will be captured by your Legal & Professional privilege to the Group.

…

7    Billing

We will issue our invoice to you (acting on behalf of the Group) on completion of the Services, which Hamilton Locke will then send on to your clients for approval.

Our invoices will be addressed to and paid by Hamilton Locke, unless you tell us otherwise. We acknowledge that the Group solely shall be liable to pay our fees and charges, and that you will not be liable for any fees or charges incurred under this engagement.

…

(Emphasis added.)

42    A subsequent letter dated 16 December 2020 from Deloitte to Hamilton Locke (Deloitte Retainer) is relevantly in the same terms as the draft set out in the preceding paragraph.

43    The final page of the Deloitte Retainer (and the earlier draft) provided for a person to sign by way of agreement to its terms. It provided “Hamilton Locke agrees to the terms of this Agreement” and made provision for a suitably authorised person to sign. There were two signed copies of the Deloitte Retainer in evidence before me: one signed on 18 December 2020 by Mr Softa as CFO and company secretary of Mosaic; and one signed on 21 December 2020 by Janelle Watts, director of operations of Hamilton Locke. I consider the effect of this commencing at [158] below.

44    The SPLs submitted that a draft of the Deloitte Retainer was approved by the Board but did not refer to any minutes of a meeting of the Board or other evidence to support that submission. Based on my review, the minutes of the meeting of the Board on 16 December 2020 record that a resolution was passed that “the company engage Deloitte Partners … to provide Safe Harbour advice to Hamilton Locke on the Company’s behalf” and an action item that “Safe Harbour: Deloitte to be engaged as advisers” with the attached Action List recording that the engagement letter with Deloitte was signed in December. Mr Softa and Hamilton Locke were the “Person Responsible” for that action item.

45    Although Deloitte was engaged by Hamilton Locke to assist with the safe harbour advice, over the period of its engagement, Deloitte at times corresponded directly with Mr Wilshire and the other directors or staff at Mosaic for the purposes of sending or requesting information in connection with their engagement. Mr Wilshire had always understood that his communications, or those sent on his behalf, with Mr Marsden and his team were to assist Mr Edwards in delivering legal advice to him.

46    In cross-examination Mr Wilshire did not accept that Mr Softa was the person mainly involved in obtaining the safe harbour advice. He and Ashley Anderiesz, general manager finance reporting to Mr Softa (and later Mr Clarke, as to whom see below at [49]) were involved at the request of the directors to provide the necessary information to Deloitte “which would then feed into Hamilton Locke’s advice to the directors”. Mr Wilshire explained that the safe harbour advice was made available to those members of the management team to facilitate the information flow.

Other engagements by Mosaic Companies of Deloitte

47    Deloitte had other engagements with various of the Mosaic Companies in the period from 2020 to 2024 which were distinct from the engagements relating to the safe harbour advice provided by Hamilton Locke. Those other engagements were recorded in engagement letters between Deloitte and Mosaic or the relevant Mosaic Companies.

Communications between Mosaic employees, Hamilton Locke and Deloitte

48    Between 2020 and 2024, Mr Wilshire corresponded with Messrs Edwards and Marsden and members of their teams about the information required for the purposes of obtaining the safe harbour advice. The purpose of those communications was to ensure that Deloitte and Hamilton Locke had the information that they needed to complete the required analysis.

49    Given Mr Wilshire’s role as a non-executive director of Mosaic he was not able to provide Hamilton Locke and Deloitte with the financial information they sought in order to provide the relevant advice and undertake the financial modelling necessary to give the advice. Accordingly, as set out above, the provision of that information was facilitated through select members of the management team, such as in the first instance, Mr Softa and, at Mr Softa’s direction given the volume of information required, Mr Anderiesz. From about 2024, Mr Clarke, replaced Mr Softa as CFO and company secretary.

50    Mr Wilshire says Mr Softa was the “conduit” between himself and Hamilton Locke and Deloitte over a long period of time. Mr Wilshire had a close working relationship with Mr Softa and he relied on Mr Softa to correspond with Hamilton Locke and Deloitte, and to report back to him with updates when appropriate. It was usual for Mr Softa to attend to the day-to-day requests for information and documents and for him to get Mr Wilshire involved if there was something important or sensitive for him to consider. The finance team reporting to Mr Softa often assisted in responding to requests from Deloitte for financial material required for the purpose of the safe harbour advice. I address the question of Mr Softa’s role starting at [163] below.

51    When corresponding with Hamilton Locke and Deloitte, Mosaic employees would sometimes copy Mr Wilshire or other directors. Mr Wilshire understood that the purpose of this was so that the directors were across the information being shared and received from their external safe harbour advisors.

52    Further, there is evidence that in addition to Messrs Softa, Anderiesz and Clarke, other Mosaic employees had access to the safe harbour advice because they were copied into email chains which set out or attached the safe harbour advice. These employees include Hannah Viles (Mr Evans’ executive assistant), Madison DeSousa (another of Mr Evans’ executive assistants) and Ms Dadswell.

Preparation of, and access to, Board materials

53    Preparation and assembly of Board papers and materials principally fell to Mr Softa, although Mr Evans provided some assistance. Board packs were generally provided about a week or so, or at least a few days, before the relevant Board meeting. They were always issued electronically and typically via email, although for a very short period of time the Board used “Boardtrac”, which was a secure online Board portal.

54    Mr Wilshire recalls that Board packs were only sent to the Board members, Messrs Softa and Anderiesz, and Ms Viles. Mr Wilshire knew this because when the Board packs were issued, they were sent by email by Mr Evans’ executive assistant or Mr Softa as company secretary to the directors as recipients to a single email. Mr Wilshire also recalls that throughout the relevant period there were times when Messrs Edwards and Marsden were copied into those emails.

55    Mr Wilshire explained in cross-examination that Ms Dadswell took minutes at Board meetings and accordingly, she had access to the information discussed at those meetings for that purpose.

56    According to Mr Wilshire, members of the executive leadership team would occasionally come to Board meetings to present on various topics. When doing so, they would often have their own presentation or some other contribution to the Board pack. However, those presenters were not present for the whole Board meeting, nor would they receive the whole Board pack or other Board papers. They attended meetings only for the duration of their presentation.

57    Similarly, Ms Frank was asked if she took any steps to keep the safe harbour advice confidential from senior employees of Mosaic. In response she explained that at every Board meeting, all of the material provided was handed back to the Chair, she never retained any of the papers for confidentiality purposes and she assumed, because of that practice, everything discussed at Board meetings was confidential, not to be discussed outside of the meetings.

The voluntary administration of Mosaic

58    As set out at [2] above on 28 October 2024 Mr Strawbridge, Ms Evans, Ms Warwick and Mr McGrath were appointed as administrators of the Mosaic Companies.

59    Mr Wilshire says that, after the appointment of the administrators to Mosaic, Mr Edwards continued to provide him and the other directors of Mosaic with legal advice about the safe harbour regime and the position the directors should take in dealing with the administrators. When providing that advice, Mr Edwards never informed Mr Wilshire that he was acting for Mosaic or the Mosaic Companies, that he would need to stop acting for the Mosaic Companies, or that he would need some concession or consent from the Mosaic Companies (under the control of the administrators) in order to continue advising the directors.

60    At the time that the Mosaic Companies were in voluntary administration Mr Wilshire would not have expected that Mr Edwards or Hamilton Locke could act both for him and the other directors of the Mosaic Companies, and the Mosaic Companies.

Request for delivery of books of Mosaic

61    On 30 October 2024 Ms Evans, who as set out above was one of the administrators, sent an email to Mr Gracanin which, among other things, attached a letter in which she requested completion of a Report on Company Activities and Property. Ms Evans noted that she would be providing the same letter to each of the directors. The attached letter was dated 29 October 2024 (29 October Letter) and included:

As you know, on 28 October 2024 Vaughan Strawbridge, Kate Warwick, David McGrath, and I were appointed joint and several Administrators of the Group pursuant to Section 436A of the Corporations Act 2001 (“the Act”). Concurrent to our appointment, David Hardy, Gayle Dickerson, Ryan Eagle and Amanda Coneyworth of KPMG were appointed as Receivers and Managers (“Receivers”) of the Companies on the same day.

We note Receivers are now in control the Mosaic Brands Group, which includes its business operations, assets and books and records. Notwithstanding their appointment and control, the provisions under the Act that requires directors to provide information and assistance to the Administrators for the purpose of investigating the Company’s affairs, still apply.

…

Demands for books and property

Section 438B(1) of the Act provides that each director must deliver to the Administrators all books and records in the director’s possession and if the director knows the whereabouts of other records relating to the Companies, tell the Administrators where those records are.

There are additional provisions in the Act relating to books and records of the Company and safe harbour laws. Section 588GB provides that information or books will not be admissible to support safe harbour if there is a failure to permit inspection.

We acknowledge the Receivers are in possession of the books and records. To the extent they have not taken possession of all the books and records, we request you deliver the books and records to the Administrators or Receivers. Attached is notice in this regard.

…

62    The 29 October Letter enclosed a Form 509A notice being a “notice to deliver books of company to the administrators” (October Notice). The October Notice included:

I, Kathryn Evans, of FTI Consulting, Level 22, Gateway, 1 Macquarie Place, Sydney, New South Wales, one of the joint and several Administrators of the Companies, give you notice under Section 438C(3) that I require you to deliver to me, at the above address, within three (3) business days of the date of this notice, the books and records specified in the Schedule, being books of the Companies, that are in your possession.

Note that under Section 438C(5), you must comply with this notice except so far as you are entitled as against the Companies and the Administrators, to retain possession of the books.

…

63    On 5 November 2024 Ms Evans sent a letter to Mr Marsden of Deloitte which enclosed a notice to deliver books of company issued pursuant to s 438C(3) of the Corporations Act, referred to Mr Marsden’s appointment as “Safe Harbour advisor” to the Mosaic Companies and requested “the delivery of all documents described in the enclosed [n]otice” in Mr Marsden’s “possession regarding the abovementioned advice provided to the [Mosaic] Companies”.

The safe harbour timeline and memorandum

64    The next correspondence in evidence before me was dated 21 November 2024. On that date Kassandra Adams, special counsel at Hamilton Locke, sent an email to Ms Evans in which she wrote:

We have been working in the background to assist Deloitte in putting together the safe harbour timeline and memorandum for Mosaic.

We currently have a draft timeline together (which is approximately 40 pages) and are working on the explanatory memorandum. We would like to confirm with you whether you would prefer to receive the draft working version of the timeline tomorrow or hold until the memorandum and timeline are finalised.

Please let me know.

65    On 23 November 2024 Ms Adams sent an email to Ms Evans which included:

Please see attached a draft working timeline in relation to the Mosaic Group and the advice the directors sought from time to time generally and more specifically in relation to the safe harbour provisions as outlined in section 588GA of the Corporations Act 2001 (Cth). We note the directors have not confirmed these dates and we will also send to them at the same time for their confirmation / input as appropriate. Further we note the directors have not waived privileged over any advice and provide to you on a confidential basis.

As you will see the timeline is rather extensive and contains a lot of information. We will continue to work on the timeline (including accompanying documents) and also are considering providing a short written summary to ensure that everything requested is captured in a way that can be easily digested, to assist with the Administrators’ review.

For ease, there are 5 distinct timeframes where the Board sought advice:

1.    Pre-COVID – pre 25 March 2020, the Board conducted initial enquiries regarding what safe harbour was and what is required and sought recommendations of advisors to assist.

2.    COVID – 25 March 2020 to 31 March 2021 – Covid temporary relief was granted by the Government in relation to insolvent trading.

3.    1 January 2021 to 26 May 2021 – formal advice sought on safe harbour and Deloitte engaged through Hamilton Locke to provide financial analysis alongside the legal advice being provided.

4.    27 July 2021 – 31 December 2021– advice sought on safe harbour whilst completion of the capital raise and refinance to CBA occurred. The exact date is still being considered and further information is being sought.

5.    July 22 – appointment – formal advice sought on safe harbour and Deloitte engaged through Hamilton Locke to provide financial analysis alongside the legal advice being provided. During this period the Hilco refinance occurred.

As we continue to collate the information, we reserve the ability to update/amend the timeline as appropriate.

…

66    For the purposes of these reasons, I will refer to the safe harbour timeline and the explanatory memorandum described by Ms Adams in her correspondence set out above respectively as the Timeline and Memorandum.

67    On 30 November 2024 Ms Adams sent an email to Ms Evans to which she attached “further working draft of the timeline with documents hyperlinked (Mosaic - Safe Harbour)”. Ms Adams’ email included:

I note that the timeline is still in draft and documents and events continue to be collated. I reiterate that the directors have not waived privilege over any advice and it is being provided on a confidential basis.

Again, I note that the directors have yet to properly review, provide feedback and confirm the dates for which they sought advice.

68    Mr Wilshire accepted that at around this time work was being done on documents (namely the Timeline and Memorandum) that recorded the safe harbour advice which were provided to the administrators, initially in draft, and eventually in final form. During that period the directors communicated with one another until they were content with the form of the Timeline and Memorandum to be provided.

69    On 5 December 2024 Ms Evans sent a letter to the directors of Mosaic (5 December Letter) in which she wrote:

I refer to the Notice to deliver the books and records of the Companies (Form 509A) to the Administrators included in my letter of 28 October 2024 [sic]. We note that staff of the Companies are assisting in the provision of various information, including books and records.

We refer your attention to the provisions of section 588GB of the Act. That section provides that a director who fails to provide access to books and records to an administrator or liquidator will be prevented from being able to rely on those materials as evidence of having complied with safe harbour requirements. We have requested information from Sam Marsden of Deloitte as the Safe Harbour Advisor. To date, no documents have been provided by the Safe Harbour Advisor.

We require the Directors to provide the following by 12 December 2024:

1.    A summary of your reliance on the safe harbour provisions including the events leading up to first seeking to rely on safe harbour, engagement with advisors and the plans developed by the Directors’ and Management of the Companies.

2.    Copies of all information provided to Deloitte and Hamilton Locke by the Companies (including its directors, officers, employees or agents) in order to analyse the Companies’ financial position.

3.    Copies of all written output prepared by either Deloitte or Hamilton Locke in relation to the advice given to the Companies as safe harbour advisors.

4.    Copies of all written communications between either Deloitte or Hamilton Locke and the Companies (including its directors, officers, employees or agents).

5.    Copies of all written communications between either Deloitte or Hamilton Locke and creditors, suppliers, customers, secured creditors, lenders of the Companies or other third parties doing business or contracting with the Companies.

6.    Any other records concerning the corporate structuring plan and/or safe harbour advice provided by Deloitte or Hamilton Locke to the Companies.

70    On 8 December 2024 Ms Berchtold sent an email to Matt O’Keefe, who I understand was a member of the administrators’ team, in which she wrote:

I note the correspondence on Friday regarding Safe Harbour timelines and documentation to be provided. We are of course going to formally reply to that and David is updating a version of the timeline that I had added to over the past weeks. I do not agree with the narrative (seemingly created to blame me for the demise of the company) that is being peddled by the Chairman and ex CEO that everything was fine in Feb 2024 and the “Mothers Day 2024 trade miss” was a primary contributor to the situation we now find ourselves in. The Mothers Day miss was primarily caused by:

a)    Historical payment issues with suppliers

b)    Poor decision making and oversight by previous management on supply chain issues and transition to new provider

c)    The ex CEO (who had been there 10 years) was working in the business until 1st week May and was on gardening leave until the end of May. The CFO (who had been there 10 years) was working in the business until end August. So I think they were clearly responsible for the Mothers Day trade period.

Sure, we missed our sales, but it was because of issues created by the previous management before they bailed.

Attached are several emails that cover:

-    Reference to an $18m CODB reduction plan from the February (the time when “everything was fine”)

-    CODB updates I provided in July and August - Board agenda emails from 22/8/24 where I have highlighted that we needed to determine who was going to negotiate with suppliers, that Hilco were already pushing for us to close Rockmans and that Luka was apparently already working on a DOCA with Richard

-    Board papers from 27/8/24

71    On 12 December 2024 Mr Facioni sent an email to Mr Strawbridge and Ms Evans with subject “Mosaic Group Safe Harbour” (12 December Email) in which he wrote:

Please see attached memorandum and timeline together with a link to the documents referred to therein (Safe Harbour - Mosaic) as prepared by the Directors of the Mosaic Group and its subsidiaries. Please ignore and delete all previous versions of these documents that you have received from our safe harbour advisors Hamilton Locke/Deloitte. Those versions were only provided as a draft and the attached versions have been reviewed, commented upon and approved by the Directors (including former directors Scott Evans and Jacqueline Frank).

The Directors note that both documents should not be read as a complete defence to any potential future insolvent trading claim brought by a liquidator against them and reserve their right to put forward more information as required.

The documents have been prepared to provide you with an overview of the Directors’ reliance on the safe harbour regime from time to time and to outline the background and steps taken.

While we have tried our best to be as accurate as possible and provide as much detail as possible to assist your preparation of the report to creditors and your investigations into the affairs of the Mosaic Group, we note that there were various changes to the board during the period in which the Directors relied on the safe harbour regime and therefore, its contents may be subject to change.

The Directors ask that these documents not be shared (except to your legal advisors) without the written consent of the Directors.

The provision of these documents is not intended to waive any claim of legal professional privilege by the Directors, whose claims for privilege are maintained. Any disclosure is inadvertent and unintentional and ought not to affect the confidential and privileged nature of advice provided.

Can I ask you to please confirm that the attached satisfies the directors requirements to comply with the notice.

Please do not hesitate to contact any of the Directors should you have any questions in relation to either document.

72    On 13 January 2025 Carla Fairweather of FTI Consulting sent an email to Ms Adams, copied to Mr Edwards, in which she informed Ms Adams that, upon her review, she had been unable to locate a few of the documents identified in the Timeline provided under cover of the 12 December Email. On 22 January 2025 Mr Edwards responded to Ms Fairweather noting that the missing documents had been located, they were missed due to an oversight, providing a zip file containing the documents and noting “for completeness FTI’s request was passed on to the directors, who confirmed Hamilton Locke is authorised to send the documents requested”.

Interested Persons’ understanding of the Timeline and Memorandum

73    Mr Wilshire said that information was provided to the administrators in response to their request which informed the directors that if the material was not provided, it would potentially not be available to them when relying on a safe harbour defence and that decisions as to what to provide were made in consultation with Hamilton Locke. His evidence is that the information was provided on the basis of “non-waiver”, although he also accepted that he was content to provide the information, including the legal advice, to the administrators as the legally appointed representatives of the Mosaic Companies, as guided by Hamilton Locke.

74    At the time of the interactions referred to above with the administrators, Ms Frank was no longer a director of Mosaic. She resigned from the Board on 18 June 2024. In December 2024 Ms Frank was aware that documents were being collated for the purpose of providing them to the administrators and she was provided with one iteration of those documents before they were provided to the administrators. In cross-examination, Ms Frank said that she did not approve the final version of the Timeline and Memorandum provided to the administrators. Rather, she was provided with a copy of the final versions of those documents for her information, after they were sent. Ms Frank said she has no recollection of approving the documents and was “shocked” when she saw the 12 December Email which referred to her approval of the Timeline and Memorandum.

75    However, in cross-examination Ms Frank accepted that after she was informed as an “FYI” that the Timeline and Memorandum had been provided to the administrators, she did not object to the fact that had occurred. That was because Ms Frank did not actually understand what was happening at the time, she was not paying attention, and she was no longer on the Board.

76    Ms Frank’s evidence that she did not approve the documents provided under cover of the 12 December Email is difficult to accept given the terms of the contemporaneous 12 December Email. That email expressly states that “the attached versions have been reviewed, commented upon and approved by the Directors (including former directors … Jacqueline Frank)”. As Ms Frank accepted, unsurprisingly given the passage of time, she has no recollection of approving the despatch of those documents. However, she acknowledged that she received a prior version of the material and made no complaint after the despatch of the final version of the material under cover of the 12 December Email until the commencement of this proceeding. That, coupled with the terms of the 12 December Email, leads me to prefer the contemporaneous document over Ms Frank’s recollection. Thus, I find that Ms Frank did approve the documents provided under cover of the 12 December Email.

Events following the appointment of the SPLs

77    Following their appointment on 9 December 2025 pursuant to Orders of this Court, the SPLs were provided with the following by the GPLs.

(1)    a chronology from the Mosaic Companies’ directors regarding safe harbour which may be the Timeline, although it is not clear;

(2)    a SharePoint containing various files which Mr McCabe, one of the SPLs, understands to be a selection of key documents gathered by the GPLs during the course of their appointment;

(3)    a hard drive containing “.pst” files of various officers and employees of the Mosaic Companies, which was about 863 GB or 1,565,513 files; and

(4)    a hard drive from a former external IT provider to the Mosaic Companies, which Mr McCabe understands is an image of the Mosaic Companies’ server and is 619GB in data size or 442,011 files.

78    On 16 December 2025 Ms Evans, at the time one of the GPLs, sent a letter to Mr McCabe which enclosed two spreadsheets titled “Mosaic Brands - Physical Books and Records Listing” and “Mosaic Mailboxes” respectively. Ms Evans’ letter included:

…

2.    The Board Meeting Packs and Board Minutes from July 2020 that form part of the Non-Archived Books and Records, were loaded up to the KWM share site which you have been given access to on 12 December 2025.

3.    The information provided to us by the directors and their advisors on Safe Harbour were loaded up to the KWM share site which you have been given access to on 12 December 2025. Copies of correspondence with the directors relating to safe harbour and personal asset positions are included, together with copies of searches conducted.

4.    The counsel advice on insolvent trading and safe harbour was loaded up to the KWM share site which you have been given access to on 12 December 2025.

…

79    On 23 February 2026 ERA Legal, the SPLs’ solicitors, requested Hamilton Locke to deliver up the legal files of the Mosaic Companies, whether the files were in the name of a single company or with another. Hamilton Locke provided those files by 16 April 2026. Other than by way of limited sampling for the purposes of checking the files had been delivered, the SPLs have not reviewed those files.

Summonses for examination and production

80    On 12 March 2026 the Court made orders for the issue of summonses for examination pursuant to s 596A and s 596BA of the Corporations Act and summonses for production.

81    On 16 April 2026 White & Case, solicitors for Mr Wilshire, sent a letter to Mr Edwards of Hamilton Locke which included:

…

2.    Our client has been served with an order for production of documents by [the SPLs].

3.    We understand that the [SPLs] have also served Hamilton Locke, and you personally, with orders for production in connection with the Proceeding (“Production Orders”).

Privilege in legal advice given to directors

4.    So that there is no misunderstanding of our client’s position, our client considers that any documents recording or referring to legal advice provided by you or Hamilton Locke to the directors of Mosaic and of EziBuy at any time is subject to a claim of legal professional privilege by our client. Among other things, our client considers advice to him to at least include all advice provided by you and/or your firm in relation to the application of the ‘safe harbour’ regime provided for in s.588GA of the Corporations Act (Cth) 2001 (“Safe Harbour Advice”).

5.    We are instructed that our client:

a)    has not at any time waived legal professional privilege in respect of any advice, including advice recorded in documents held by you or Hamilton Locke that are of that kind;

b)    has not at any time given you instructions to waive legal professional privilege in relation to advice recorded in documents of that kind; and

c)    does not consent to any waiver of privilege by you, Hamilton Locke or any other party in any document over which he has a claim for privilege.

6.    That being so, our client’s position is that all work product of Hamilton Locke in relation to advice that our client has received is covered by that claim for privilege. That is especially so in relation to all Safe Harbour Advice.

…

(Emphasis in original.)

82    On 22 April 2026 White & Case sent a letter to Sparke Helmore, solicitors for Hamilton Locke, which included, among other things:

…

4.    Our client asserts a claim for legal professional privilege over documents recording or referring to legal advice given by your clients to the directors of Mosaic and/or EziBuy (Directors). As we stated in paragraph 4 of the 16 April Letter, that privilege claim covers all safe harbour advice given to the Directors. The client for your client’s engagement, at least in respect of safe harbour, was the Directors and was not (and should not have been) the Mosaic or EziBuy entities (either jointly with the Directors or singularly).

…

6.    We seek urgent clarification as to whether any legal advice provided by your clients to the Directors (including, but not limited to, advice relating to safe harbour) has been disclosed to the [SPLs] or any other party. …

(Emphasis in original.)

83    In response, by letter dated 23 April 2026 Sparke Helmore informed White & Case, among other things, that:

…

2.    Between 2018 and 2024 Hamilton Locke was engaged at various times by Mosaic Brands Limited (Mosaic) and by certain companies in the Mosaic Brands group. In each such matter, we are instructed that Hamilton Locke’s engagement was with the relevant corporate entity and not with the directors of those entities. That is so irrespective of the subject matter of each engagement.

3.    It follows that our client does not accept the position outlined in the last sentence of paragraph 4 of your letter dated 22 April 2026.

...

Paragraph 6 of your 22 April 2026 letter

…

8.    In providing documents to its former client entities, our client has not asserted any claim for privilege or sought to limit the use to which the client entities may put the documents so provided.

9.    The documents provided include documents over which the former client entities would be entitled to legal advice privilege.

…

84    On 1 May 2026 Lavan, solicitors for Mr Facioni, sent an email to ERA in which they informed ERA that:

… we are instructed to confirm for the avoidance of doubt, that any documents recording or referring to legal advice provided by Hamilton Locke to the directors of the [Mosaic Companies] at any time are subject to a claim of legal professional privilege by Mr Facioni. Such advice would include any advice provided by Hamilton Locke in relation to the application of the ‘safe harbour’ regime provided for in s 588GA of the Corporations Act 2001 (Cth).

85    On 4 May 2026 MinterEllison, solicitors for Ms Morphet, sent an email to ERA which included:

…

Our client is concerned that Hamilton Locke may have inadvertently produced documents that are privileged in favour of individuals including our client, without the knowledge or authorisation of the persons holding the privilege. We have sent the attached email to Sparke Helmore seeking urgent confirmation in this regard.

The purpose of this email is to put you and your clients on notice that you may have received documents that are privileged in favour of persons other than the Mosaic companies. If that is the case, privilege in those documents has not been lost and you (and your clients) must not inspect or use the documents.

…

86    On 7 May 2026 the SPLs commenced this proceeding.

LEGAL PRINCIPLES

Legal professional privilege

87    The dispute between the parties concerns pre-trial disclosure. Accordingly, it is to be determined according to common law principles rather than uniform evidence law: Esso Australia Resources Ltd v Federal Commissioner of Taxation [1999] HCA 67; (1999) 201 CLR 49 at [16]-[17] (Gleeson CJ, Gaudron and Gummow JJ). At common law, legal professional privilege applies to confidential communications made for the dominant purpose of a client obtaining legal advice or for use in litigation, regulatory investigations or proceedings: Singtel Optus Pty Ltd v Robertson [2024] FCAFC 58; (2024) 425 ALR 1 at [24] (Murphy, Anderson and Neskovcin JJ). As the Full Court went on to explain in Singtel (also at [24]) the protection is confined to confidential communications made for the purpose of giving or obtaining, including preparation for obtaining, legal advice or the provision of legal services, including representation in litigation or other proceedings.

88    The party claiming the privilege bears the onus of proving the dominant purpose: AWB Ltd v Cole (No 5) [2006] FCA 1234; (2006) 155 FCR 30 at [44(1)] (Young J). A dominant purpose is one which predominates over other purposes. It is the prevailing or paramount purpose: Re CGB Labour Hire Pty Ltd (in liq) [2023] NSWSC 17 at [181] (Meek J), citing AWB (No 5) at [44(5)] (Young J). Where two purposes are of equal weight, neither is dominant in the relevant sense, e.g. where there are two equally important purposes: Commissioner of Taxation v PriceWaterhouse Coopers [2022] FCA 278; (2022) 114 ATR 335 at [144] (Moshinsky J), referring to Commissioner of Taxation v Pratt Holdings Pty Ltd [2005] FCA 1247; (2005) 225 ALR 266 at [30(8)] (Kenny J).

89    The purpose for which a document is created is a matter of fact to be determined objectively, having regard to the evidence, the nature of the document and the parties’ submissions. Further, the evidence of the subjective intention of the person who made the communication, or the person who authorised or procured it, is a relevant but not conclusive consideration. Often, it is the character of the documents that will illuminate the purpose for which they were created: Singtel at [25]-[26] (Murphy, Anderson and Neskovcin JJ).

90    In Singtel at [29] the Full Court observed that:

In Glencore International AG v Commissioner of Taxation [2019] HCA 26; 265 CLR 646 at [30], the High Court noted the importance of confining legal professional privilege “within strict limits”. One of those limits is to be seen in the requirement that a party claiming privilege satisfy the court of its purpose. The quality and precision of the evidence adduced in support of a claim for privilege is relevant, and dominance of purpose is not established by bare ipse dixit.

91    The concept of legal advice is fairly wide. It extends to professional advice about what a party should prudently or sensibly do in the relevant legal context but does not extend to advice that is purely commercial or of a public relations character: Re CGB at [183] (Meek J) citing AWB (No 5) at [44(7)] (Young J).

Joint and common interest privilege

92    Joint privilege arises where two or more people join in communicating with a legal adviser for the purpose of retaining his or her services or obtaining advice. The privilege which protects these communications from disclosure belongs to all the people who joined in seeking the services. Those persons together are entitled to maintain the privilege “against the rest of the world” and must concur in waiving it: see Farrow Mortgage Services Pty Ltd (in liq) v Webb [1996] NSWSC 259; (1996) 39 NSWLR 601 at 608 (Sheller JA, with whom Waddell AJA agreed).

93    Common interest privilege arises where parties have a shared or similar interest in the subject of communications between one or more of them and a legal adviser. The shared interest may arise as a result of the particular situation in which a group of people find themselves. For example, an insured and an insurer may have a shared interest in defeating a claim by a third party against the insured. In those circumstances, a question arises as to whether disclosure among the parties with the common interest of the contents of the confidential communications results in a waiver of the legal professional privilege. The distinction between joint and common interest privilege may be important when considering whether disclosure by one party interested in the matter of the contents of a communication with a third party should be treated as a waiver by all interested parties: Farrow Mortgage Services at 608 (Sheller JA, with whom Waddell AJA agreed).

94    In Farrow Mortgage Services, in the context of the facts of that case, Sheller JA also observed at 608-9:

The privilege attached to legal advice obtained by a company is not lost when the advice is disclosed to its directors but this is not because of their common interest. The company can only manifest its acts and intentions by the actions and declarations of human beings: Black v Smallwood (1966) 117 CLR 52 at 61, Tesco Supermarkets Ltd v Nattrass [1972] AC 153 at 171. The directors’ knowledge of the decision to obtain advice and the contents of that advice cannot be treated as a disclosure to a party separate from the company itself. The directors receive and act upon this information as the mind and directing will of the company. Accordingly the disclosure involves no waiver of the company’s privilege.

95    Provided directors can establish that the privilege is one held only by them, to the exclusion of the company of which they are directors, they may maintain a claim of privilege against the company itself and, by extension, any liquidator appointed to the company: see Re Atlas Construction Group Pty Ltd (in liq) [2019] NSWSC 1656 at [14] (Rees J).

Waiver

96    In Goldberg v Ng [1995] HCA 39; (1995) 185 CLR 83 the High Court considered the question of imputed waiver. Relevantly, Mr Goldberg had disclosed documents to the Law Society of New South Wales for the limited purpose of dealing with its inquiries in relation to a complaint which had been made by Mr Ng against Mr Goldberg. Mr Goldberg’s provision of the documents to the Law Society was on the express basis that they would not be shown to anyone else. Justices Deane, Dawson and Gaudron identified the question to be whether Mr Goldberg’s disclosure of privileged documents to a third party, the Law Society, gave rise to a situation where ordinary notions of fairness required that Mr Goldberg be precluded from asserting that those documents were protected from production for inspection by the Ngs in related proceeding between the Ngs and the Goldbergs: at 98.

97    Before identifying that question, their Honours set out some general principles in relation to imputed waiver including at 96:

Necessarily, the basis of such an imputed waiver will be some act or omission of the persons entitled to the benefit of the privilege. Ordinarily, that act or omission will involve or relate to a limited actual or purported disclosure of the contents of the privileged material. When some such act or omission of the person entitled to the benefit of the privilege gives rise to a question of imputed waiver, the governing consideration is whether “fairness requires that his privilege shall cease whether he intended that result or not”. That does not mean, however, that an imputed waiver must completely destroy the privilege. Like an express waiver, it can be limited so that it applies only in relation to particular persons, materials or purposes.

(Footnote omitted.)

98    In Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1 a majority of the High Court (Gleeson CJ, Gaudron, Gummow and Callinan JJ) put a different complexion on the test for determining whether there has been a waiver saying at [29]:

Waiver may be express or implied. Disputes as to implied waiver usually arise from the need to decide whether particular conduct is inconsistent with the maintenance of the confidentiality which the privilege is intended to protect. When an affirmative answer is given to such a question, it is sometimes said that waiver is “imputed by operation of law”. This means that the law recognises the inconsistency and determines its consequences, even though such consequences may not reflect the subjective intention of the party who has lost the privilege. Thus, in Benecke v National Australia Bank, the client was held to have waived privilege by giving evidence, in legal proceedings, concerning her instructions to a barrister in related proceedings, even though she apparently believed she could prevent the barrister from giving the barrister's version of those instructions. She did not subjectively intend to abandon the privilege. She may not even have turned her mind to the question. However, her intentional act was inconsistent with the maintenance of the confidentiality of the communication. What brings about the waiver is the inconsistency, which the courts, where necessary informed by considerations of fairness, perceive, between the conduct of the client and maintenance of the confidentiality; not some overriding principle of fairness operating at large.

    (Footnotes omitted; emphasis added.)

99    In Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd [2013] HCA 46; (2013) 250 CLR 303 the High Court (French CJ, Kiefel, Bell, Gageler and Keane JJ) said the following about waiver at [30]:

According to its strict legal connotation, waiver is an intentional act done with knowledge whereby a person abandons a right (or privilege) by acting in a manner inconsistent with that right (or privilege). It may be express or implied. In most cases concerning waiver, the area of dispute is whether it is to be implied. In some cases waiver will be imputed by the law with the consequence that a privilege is lost, even though that consequence was not intended by the party losing the privilege. The courts will impute an intention where the actions of a party are plainly inconsistent with the maintenance of the confidentiality which the privilege is intended to protect.

(Footnotes omitted.)

100    In Asahi Holdings (Australia) Pty Ltd v Pacific Equity Partners Pty Ltd (No 2) [2014] FCA 481; (2014) 312 ALR 403 Bromberg J found that the disclosure by an insured to an insurer was made voluntarily to a potential opponent: at [73]. In that context his Honour said at [74]-[75]:

74    However, even where a privileged document is provided to an opponent, the confidentiality in the disclosed communication may be preserved. If the basis upon which privileged material is made available is restricted so as to secure the confidentiality, the act of disclosure may not be inconsistent with the maintenance of the confidentiality which the privilege serves to protect.

75    Restrictions of that kind are obviously better effectuated by an express agreement which spells out the basis upon which the disclosure is made and the limitations upon its further use. However, agreement as to confidentiality may be implied from the circumstances in which the disclosure was made: …

101    In Medibank Private Ltd v McClure [2026] FCAFC 38 Lee J (with whom Wigney and Hespe JJ agreed) said at [27]:

For completeness, it is worth adding that there is a related but distinct body of law concerning waiver. Waiver does not, of course, turn on the dominant purpose for which a document was brought into existence, but on whether later conduct is inconsistent with the maintenance of the confidentiality which the privilege is intended to protect: Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1 (at 13 [29] per Gleeson CJ, Gaudron, Gummow and Callinan JJ); Australian Securities and Investments Commission v Macleod [2024] FCAFC 174; (2024) 307 FCR 332 at (357–360 [129]-[140]). That distinction must be kept steadily in mind. The fact that the same conduct may later bear upon waiver does not preclude its use as evidence of purpose (because it could rationally be probative of that anterior fact in issue). But nor should the tests be conflated. Whether that conflation occurred here is raised by Medibank.

102    The Interested Persons rely on a series of cases which considered waiver where production was compelled.

103    Woollahra Municipal Council v Westpac Banking Corporation (1994) 33 NSWLR 529 concerned a notice to produce and a subpoena served by Abbott Tout Russell Kennedy, a party to the proceeding, on Woollahra Municipal Council and the Department of Local Government and Co-operatives respectively. The Council and Department each sought orders that the notice to produce and subpoena be set aside and, alternatively, the Council sought an order that access to documents produced in answer to the notice to produce and subpoena be denied to the parties to the proceeding. It became common ground that the notice to produce and subpoena would not be set aside and documents were produced with those in dispute being produced to the custody of the court. The question for the court was whether claims for legal professional privilege or public interest immunity in relation to the documents in dispute were established, such that the documents were not made available for inspection.

104    Relevantly, the Council had produced documents which were subject to legal professional privilege to the Department during the course of an investigation undertaken by the Department. The Department had power to compel production. However, the documents were provided without the need for a summons but “under legal professional privilege”: at 534. In addressing whether there had been a waiver by the Council of its legal professional privilege in the documents provided to the Department, Giles J said at 540:

In the present case the disclosure was confined to the inspectors, and the department's response to the subpoena demonstrated no greater dissemination of the relevant documents than flowed from the fact that the inspectors were officers of the department. The disclosure was required by the Council to be on terms of confidentiality, and there is nothing to suggest that the confidentiality was not respected. While there may be a waiver even if the person entitled to the privilege, or the person to whom disclosure is made, purports to preserve it (eg, Ng v Goldberg), that the confined disclosure was on terms of confidentiality is relevant to whether or not there was a waiver, and although later in these reasons I suggest that an assurance of confidentiality could not properly be given by inspectors that does not detract from the Council's endeavour to retain confidentiality. Albeit intentional, the disclosure was under threat of compulsory processes and for the purpose of enabling the inspectors to carry out their statutory duty. In the circumstances in which it occurred, I do not think that the provision of documents subject to legal professional privilege to the inspectors was a waiver of the privilege.

105    In State of South Australia v Peat Marwick Mitchell (1995) 65 SASR 72 one of the questions considered by Olsson J was whether there had been an implied waiver of legal professional privilege in a document because it was produced to the Royal Commission inquiry into the State Bank of South Australia “without any claim for privilege being made and by its distribution to persons appearing before the Royal Commission, and use by them in the course of that inquiry, without any such claim for privilege being made”: at 82. Despite its claim for legal professional privilege, the Bank had produced the document to the Royal Commission because the Royal Commissioner had ruled that s 7 of the Royal Commissions Act 1917 (SA), operated in a manner which disentitled the Bank from relying on legal professional privilege as a basis for declining to produce documents. Justice Olsson said at 82:

The Bank was faced with a ruling which has never been set aside and, whilst it stood, was bound to comply with it. The approach espoused by Giles J in Woollahra (at 538) was plainly applicable. In acting in accordance with the Commissioner’s ruling, the Bank was not, itself, making use of the document in any relevant sense. It was doing no more than comply with the direction given in circumstances in which it was obvious that “refusal to comply would result in compulsion, or at least an attempt at compulsion ... and it did not use the material in such a way that it would be unfair for it to maintain the privilege ... ".

106    In James Hardie & Coy Pty Ltd v Yeomans [2000] NSWSC 539 Master Malpass reached a similar view in relation to the production of documents in response to a request by a costs assessor pursuant to s 207(1) of the Legal Profession Act 1987 (NSW) which was said to create a statutory compulsory process, referring to Woollahra Municipal Council. Master Malpass found that the production of documents in the circumstances before him was not voluntary and that, in any event, the plaintiff had not satisfied him that the situation was not one in which limited waiver may have application. His Honour found that the costs assessor treated the situation as one where he had requisitioned and used the documents solely for a limited purpose in the course of performing statutory functions: at [28]-[30].

Solicitors’ retainers

107    In WIJOAV Services Pty Ltd v Goldstone Private Equity Pty Ltd (No 7) [2026] FCA 423 Owens J considered whether a claim for legal professional privilege could be maintained over material produced by Thomson Geer, solicitors, in answer to a subpoena. The fundamental question for the Court in resolving that issue was: who was Thomson Geer’s client in respect of particular work? In relation to that question his Honour said at [20]:

A retainer does not need to be express, and may be implied from contemporaneous documentation: Trajkovski v Simpson [2019] NSWCA 52 at [13] (Basten JA and Sackville AJA) and at [100] (Brereton JA); Salmon v Albarran (2023) 414 ALR 36; [2023] NSWSC 1238 at [273] (Nixon J). In particular, as was explained in Dal Pont, Lawyers’ Professional Responsibility (4th ed, 2010) at [3.50], cited with approval in Watson v Ebsworth & Ebsworth (a firm) (2010) 31 VR 123; [2010] VSCA 335 at [111] (Neave, Mandie and Hansen JJA) (in turn cited in Salmon at [274]):

Proof of an implied retainer rests on proof of facts and circumstances sufficient to establish a tacit agreement to provide legal services. Its existence is determined by inference from objective facts, not merely by the lawyer’s belief as to which clients he or she was acting for. The reasonable expectations of the alleged client carry significant weight here, as the lawyer may always take steps to dissuade any person from a belief that the lawyer acts for that person.

108    In Global Funds Management v Rooney (1994) 36 NSWLR 122 the plaintiff sought injunctions to restrain the first and third defendants, Messrs Rooney and Wignall, a partner and employed solicitor in the law firm then known as Tress Cocks & Maddox, from disclosing to any person (including the second defendant, the Australian Investments and Securities Commission) any information, instructions, advice or communications acquired or given by or them during the course of the first defendant’s retainer as solicitor for the plaintiff. The proceeding arose because the plaintiff sought legal advice on the issue of a document referred to as the “11th Prospectus”. In relation to the prior prospectus, which was the tenth, Tress Cocks acted for the trustee, National Mutual Trustees Ltd, and another law firm, Middletons Moore and Bevins, acted for the plaintiff. The plaintiff wished to reduce costs when the 11th Prospectus was issued and so, instead of retaining Middletons, sought to “use” the trustee’s solicitors: at 124. The question before the court was whether the first and third defendants acted for the plaintiff.

109    After summarising the evidence before him and surveying the authorities, Young J said at 130:

Although there is some doubt as to the ambit of the rule, it seems clear from the authorities that the submission of the first and third defendants that the privilege only attaches if the relationship of solicitor/client actually exists or at least was contemplated is not a sufficient summary of the law. At least in a situation where the client thought that the lawyer was his or her solicitor and that thought was contributed to by the action of the solicitor or by the person who is seeking to tender the statement, the privilege will exist. In my view the authorities go further to support the proposition that if the client bona fide believes on reasonable grounds that the other is his or her solicitor, then the privilege exists up to the time when that belief is exploded.

(Emphasis added.)

110    His Honour found at 133-134:

Accordingly, Mr Rooney's firm must be considered in law to have been the solicitor for the trustee or the solicitor for the manager or the solicitor for both of them.

His Honour observed at 134-135 that:

I mentioned earlier that in my view, legal professional privilege also exists in the case where there is no retainer but a person bona fide believes on reasonable grounds that the person with whom he or she is communicating is his or her solicitor.

I was concerned that this point had only been lightly touched upon in argument. I thus communicated with all three counsel inviting further submissions if anyone desired to make them.

…

I reconsidered my statement of the law in the light of these further submissions, but I still adhere to it. I agree that Mr Rooney's “disavowal” is a material factor, but, in a particular case, including this one, even with a disavowal the whole of the circumstances may still show that the “client” reasonably remained of the view that the relationship subsisted.

111    At 135 Young J found that he was satisfied on the evidence that the plaintiff genuinely believed that Tress Cocks was its solicitors and that communications to that firm would have the same protection as would be the case of retained solicitors. His Honour relevantly said, also at 135:

… I would prefer to say that the general law of legal professional privilege as disclosed from the cases that have been referred to shows that the privilege is wide enough to encompass a case where a person genuinely believes that a person is his solicitor (or genuinely believes on reasonable grounds that another is his solicitor) without involving any doctrines of estoppel.

112    This Court in Brookfield Multiplex Ltd and Another v International Litigation Funding Partners Pte Ltd (No 2) [2009] FCA 449; (2009) 180 FCR 1 considered whether legal professional privilege attached to correspondence from solicitors, Maurice Blackburn Pty Ltd, to holders and former holders of securities in Brookfield Multiplex Ltd and Brookfield Multiplex Funds Management Ltd (together, Multiplex), about the merits and progress of a potential class action against Multiplex. Justice Finkelstein noted that the resolution of that question raised the scope of legal professional privilege prior to any retainer between a solicitor and his or her client: at [1].

113    At [19] Finklestein J commenced his discussion about a claim for privilege in circumstances where there is no retainer. His Honour relevantly said at [19]:

The privilege exists so that a person may consult his legal adviser in the knowledge that confidentiality will prevail.” Whatever may be necessary to create the required “relationship of trust and confidence”, it is clear that a retainer need not exist. In Minter v Priest [1930] AC 558 at 573 Viscount Dunedin said: “Now, if a man goes to a solicitor, as a solicitor, to consult and does consult him, though the end of the interview may lead to the conclusion that he does not engage him as his solicitor or expect that he should act as his solicitor, nevertheless the interview is held as a privileged occasion.” In Descôteaux v Mierzwinski [1982] 1 SCR 860, Lamer J, in delivering the judgment of the Supreme Court of Canada, said (at 876): “[I]t is necessary, in my view, to distinguish between the moment when the retainer is established and the moment when the solicitor-client relationship arises. The latter arises as soon as the potential client has his first dealings with the lawyer’s office in order to obtain legal advice.” …

114    Justice Finkelstein continued at [20]:

What kind of communication between a lawyer and a “client” with whom there is no retainer can be protected? If the communication is to the lawyer it will be privileged if it is confidential and provided to the lawyer in his professional capacity. A communication may be so characterised in a variety of circumstances, most usually if the person believes he is consulting a lawyer in that capacity and his manifest intention is to seek legal advice or legal services.

115    After referring to United States authorities concerning class actions, his Honour said at [21]:

In the case of a communication from the lawyer, in my view the following (non-exhaustive) rule is appropriate. If a lawyer provides a person with unsolicited legal advice, the advice cannot be privileged. It cannot be privileged because the communication is not made during the course of a professional relationship; nor can it be characterised as confidential. If, on the other hand, the advice is given in pursuance of a request, whether express or implied, made of the lawyer in his professional capacity, or if the circumstances are such that the “client” would reasonably expect to be given such advice, then it will be privileged.

(Emphasis in original.)

116    These passages were quoted with approval in Perazzoli v BankSA, a division of Westpac Banking Corporation Limited [2017] FCAFC 204 at [171]-[174] (Perram, Foster and Murphy JJ).

Safe harbour regime

117    It is convenient to set out the provisions of the Corporations Act which relate to the safe harbour regime.

118    Section 588G of the Corporations Act concerns a director’s duty to prevent insolvent trading by a company. The section applies if a person is a director at the time a company incurs a debt, the company is insolvent at the time or becomes insolvent by incurring the debt and at the time there are reasonable grounds for suspecting the company is insolvent or would become insolvent: s 588G(1).

119    A director will contravene the insolvent trading prohibition in s 588G of the Corporations Act when he or she fails to prevent the company from incurring a debt when the director was aware, or a reasonable person in a like position in a company in the company’s circumstances would be aware, that there are grounds for suspecting that the company is insolvent: s 588G(2).

120    Section 588GA of the Corporations Act is titled “Safe harbour – taking course of action reasonably likely to lead to a better outcome for the company”.

121    Relevantly, s 588GA(1) of the Corporations Act provides that s 588G(2) does not apply in relation to a person and a debt if “at a particular time after the person starts to suspect the company may become or be insolvent, the person starts developing one or more courses of action that are reasonably likely to lead to a better outcome for the company” and “the debt is incurred, or the disposition is made, directly or indirectly with such course of action or in the ordinary course of the company’s business during the period starting at that time and ending at the earliest of” one of four specified times: s 588GA(1)(b).

122    At the relevant time and up to July 2024 s 588GA(2) provided:

For the purposes of (but without limiting) subsection (1), in working out whether a course of action is reasonably likely to lead to a better outcome for the company, regard may be had to whether the person:

(a)    is properly informing himself or herself of the company’s financial position; or

(b)    is taking appropriate steps to prevent any misconduct by officers or employees of the company that could adversely affect the company’s ability to pay all its debts; or

(c)    is taking appropriate steps to ensure that the company is keeping appropriate financial records consistent with the size and nature of the company; or

(d)    is obtaining advice from an appropriately qualified entity who was given sufficient information to give appropriate advice; or

(e)    is developing or implementing a plan for restructuring the company to improved its financial position.

123    Section 588GA(3) provides that a person wishing to rely on s 588GA(1) in a proceeding for, among other things, a contravention of s 588G(2) bears an evidential burden in relation to that matter.

124    Section 588GB is titled “[i]nformation or books not admissible to support the safe harbour if failure to permit inspection etc.” and provides:

When books or information not admissible for the safe harbour

(1)    If, at a particular time:

(a)    a person fails to permit the inspection of, or deliver, any books of the company in accordance with:

(i)    a notice given to the person under subsection 438C(3), section 477 or subsection 530B(4); or

(ii)    an order made under section 486; or

(iii)    subsection 438B(1), paragraph 453F(1)(c), section 453G or subsection 477(3) or 530A(1); or

(b)    a warrant is issued under subsection 530C(2) because the Court is satisfied that a person has concealed, destroyed or removed books of the company or is about to do so;

those books, and any secondary evidence of those books, are not admissible in evidence for the person in a relevant proceeding.

Note: For subparagraph (a)(i), a liquidator could give such a notice if this is necessary for winding up the affairs of the company and distributing its property (see paragraph 477(2)(m)).

(2)    If, at a particular time, a person fails to give any information about the company in accordance with:

(a)    a notice given to the person under section 477; or

(b)    paragraph 429(2)(b), subsection 438B(2) or (3), paragraph 453F(1)(b) or subsection 475(1), 497(4) or 530A(1) or (2);

that information is not admissible in evidence for the person in a relevant proceeding.

…

(4)    The Court may order that subsection (1) or (2) does not apply to a person, and a book or information, if:

(a)    the Court is satisfied that the failures by the person as mentioned in that subsection were due to exceptional circumstances or that it is otherwise in the interests of justice to make the order; and

(b)    an application for the order is made by the person.

…

125    Section 588GA was inserted by the Treasury Laws Amendment (2017 Enterprise Incentives No 2) Act 2017 (Cth). The Explanatory Memorandum to that act provides at [1.16]-[1.17] and [1.20]-[1.21]:

1.16    The aim of the safe harbour reform is to facilitate more successful company restructures outside of a formal insolvency process where doing so would achieve a better outcome for the company than immediately appointing an administrator or liquidator. This encourages directors to closely monitor the financial position of the business, engage early with financial distress and then actively take steps to either restructure the business or, if that is not possible, to move quickly to formal insolvency.

1.17    Under the safe harbour, directors will only be liable for debts incurred while the company was insolvent where it can be shown that they were not developing or taking a course of action that at the time was reasonably likely to lead to a better outcome for the company than proceeding to immediate administration or liquidation.

…

1.20    As it is intended as a protection for competent directors who are acting honestly and diligently, the safe harbour is open only to directors who have been ensuring that the company complies with its obligation to pay its employees (including their superannuation) and meet its tax reporting obligations.

1.21    While the change is intended to allow companies to be restructured outside of a formal insolvency process, some companies may not be able to recover and will still proceed to voluntary administration or liquidation despite the directors’ best efforts. Provided that the director was developing or pursuing a course of action reasonably more likely to lead to a better outcome for the company then they will still have the benefit of safe harbour in these circumstances.

126    Under the heading “[d]etailed explanation of new law” the Explanatory Memorandum provides at [1.29]-[1.33]:

Safe harbour for company directors

1.29    New section 588GA establishes a safe harbour for directors of an insolvent company to protect them against personal liability for contraventions of the insolvent trading provisions under subsection 588G(2) of the Act and is a complementary protection to the defences in s588H. …

1.30    The safe harbour protection from the insolvent trading provisions in section 588G(2) is aimed at facilitating more successful company restructures outside of formal insolvency processes. It is also aimed at driving a cultural change amongst company directors who encounter uncertainty over a company’s solvency.

1.31    Directors will be able to remain in control of the company and take proactive steps to restructure a company in a way that is likely to deliver a better outcome than proceeding to the immediate appointment of an administrator or liquidator without unnecessary focus on their personal liability for debts incurred while the restructure takes place.

1.32    The safe harbour will protect a director in relation to debts that a company incurs directly or indirectly in connection with developing and taking a course of action that is reasonably likely to lead to a better outcome for the company than proceeding immediately to voluntary administration or winding up.

1.33    This will promote entrepreneurialism and encourage business people with the right skills, expertise and experience to serve as company directors without being deterred by personal liability for the company’s debts.

THE INTERESTED PERSONS’ CLAIM FOR EXCLUSIVE PRIVILEGE

127    As set out above, the onus is on the Interested Persons to establish their claim to exclusive privilege over the safe harbour advice. If that is established, then the question of waiver arises for determination.

The Hamilton Locke retainer

128    In the first instance, the Interested Persons’ claim for exclusive privilege is based on the following:

(1)    their understanding that they were represented by Mr Edwards of Hamilton Locke in relation to the safe harbour advice to be given about the operation of, and steps taken, pursuant to s 588GA of the Corporations Act. A retainer between the directors and Hamilton Locke about the provision of safe harbour advice is to be inferred from the relevant surrounding circumstances;

(2)    the subject matter of the safe harbour advice, namely the operation of s 588GA of the Corporations Act;

(3)    the evidence of their understanding that the directors were the beneficiaries of the safe harbour advice; and

(4)    that Hamilton Locke continued to act for the directors after the appointment of the administrators.

129    That is, the Interested Persons contend that the directors had a retainer with Hamilton Locke in connection with the safe harbour advice to the exclusion of Mosaic and any of the Mosaic Companies.

130    As I have already observed the SPLs take a different view. They submit that the evidence suggests strongly against there being any exclusive privilege in the safe harbour advice because there is no evidence of a separate retainer and there are substantial factors which tell against the conclusion that Hamilton Locke was retained exclusively by the directors. These factors include:

(1)    none of the Interested Persons give direct evidence of any retainer with Hamilton Locke and no Interested Person can recall any specific communication with a lawyer to demonstrate the exclusive retainer. Indeed, Mr Facioni, the only person who may have shed light on the circumstances surrounding the purported retainer, has not given evidence, nor has he elected to appear on the hearing of the originating process;

(2)    there is no evidence of attempts by the directors to keep the safe harbour advice confidential from the Mosaic Companies. For example, there is evidence that the privileged advice was shared with various Mosaic’s employees;

(3)    there is no explanation why the directors included legal advice, which they now say is confidential to them personally, in the minutes of Board meetings;

(4)    there is no explanation for the deliberate decision by the directors to provide the administrators (who subsequently became the GPLs) with the very material over which they now claim legal professional privilege;

(5)    the cost for the provision of the safe harbour advice was paid for by Mosaic; and

(6)    Hamilton Locke, through its solicitors Sparke Helmore, expressly stated that it did not regard itself as having a retainer with the directors (see [83] above).

Nature of the Hamilton Locke retainer

131    It was not in dispute that there is no written retainer between the directors and Hamilton Locke. Indeed, there was no written retainer between Mosaic (or the Mosaic Companies) and the directors, on the one hand, and Hamilton Locke on the other, in relation to the provision of safe harbour advice. Nor was a resolution passed at a Board meeting authorising the directors to obtain safe harbour advice for their benefit as had been the case on a previous occasion when the directors obtained advice about their directors and officers’ insurance.

132    However, as authorities such as Global Funds Management and Brookfield make clear (see [108] to [116] above), a retainer can be inferred from the surrounding circumstances and objective facts. Relevantly, the reasonably held subjective and bona fide beliefs of the directors is a relevant consideration. Other factors supporting the existence of a retainer include whether the relevant solicitor undertook work in the alleged client’s interest and for its benefit.

133    In that regard, the following is apparent from the evidence:

(1)    in March 2020 the directors became concerned about the developing COVID-19 pandemic and its effect on their position as directors, and discussed the need to seek legal advice, including in relation to the duty to prevent insolvent trading and the operation of the safe harbour regime;

(2)    each of the Interested Persons gave evidence of their understanding that Hamilton Locke was acting for the directors only in providing the safe harbour advice and not for them and Mosaic (see [32] – [37] above). They understood that the safe harbour advice so provided was confidential and for the benefit of the directors personally;

(3)    that understanding is supported by the 18 March Email sent to the directors at the time, Mr Softa and Ms Dadswell, in which Mr Facioni explained that he had “asked Hamilton Locke to provide some advice on the Safe Harbour laws which are designed to protect directors in the event of an insolvency” (my emphasis). An initial summary of the safe harbour regime prepared by Hamilton Locke was appended to that email. In effect, the 18 March Email was directed to and concerned the directors, provided an explanation about the safe harbour regime designed to protect them, and says nothing about the advice being provided to Mosaic;

(4)    Mr Edwards was retained for the purpose of providing safe harbour advice. He first attended the 19 March Board Meeting to provide such advice, and from that time on, Mr Edwards continued to provide safe harbour advice. Further, Mr Wilshire understood that from about that time Mr Edwards provided safe harbour advice and did so solely for the benefit of the directors; and

(5)    it is immaterial that the provision of the safe harbour advice was paid for by Mosaic. Clause 7.1 of the Board Charter provides that Board members have the right to seek independent professional advice at Mosaic’s expense.

134    In my view, these matters all point to the existence of a retainer between Hamilton Locke and the directors alone.

135    True it is that Mr Facioni did not appear at the hearing or give evidence about the nature of the retainer. While the SPLs refer to Mr Facioni’s absence they do not submit that I should draw an adverse inference about his evidence. In any event, it is clear from the contemporaneous documents that Mr Facioni was concerned that the directors obtain advice about the safe harbour regime and the evidence of each of the Interested Persons is that they understood that Hamilton Locke was retained to act for them in providing that advice.

136    The Interested Persons rely on the relevant provisions of the Corporations Act as a further basis upon which I would infer that the retainer was between the directors and Hamilton Locke only. They submit that the subject matter and inherent character of the safe harbour advice is a powerful reason why I would infer that the Hamilton Locke retainer was exclusively with the directors.

137    The relevant provisions are set out commencing at [117] above. The Interested Persons make three points.

138    First, they submit that the language of s 588GA(2) of the Corporations Act makes clear that, in considering whether a course of action is reasonably likely to lead to a better outcome for the purpose of s 588GA(1), regard may be had to whether the “person” (i.e. the director) performed certain steps. The Interested Persons submit that, given the terms of s 588GA, it is clear why the directors uniformly understood that they personally needed to, and did, obtain the safe harbour advice.

139    The Interested Persons also observe that in 2024 s 588GA(2) of the Corporations Act was amended and is now in the following form:

For the purposes of (but without limiting) subsection (1), in working out whether a course of action is reasonably likely to lead to a better outcome for the company, regard may be had to whether:

(a)    the person is properly informing himself or herself of the company’s financial position; or

(b)    the person is taking appropriate steps to prevent any misconduct by officers or employees of the company that could adversely affect the company’s ability to pay all its debts; or

(c)    the person is taking appropriate steps to ensure that the company is keeping appropriate financial records consistent with the size and nature of the company; or

(d)    the company or the person is obtaining advice from an appropriately qualified entity who was given sufficient information to give appropriate advice; or

(e)    the person is developing or implementing a plan for restructuring the company to improve its financial position.

140    The Interested Persons submit that the effect of the amendment is that since 2024, by virtue of subs (d) above, “the company” (in addition to “the person”) is able to obtain advice from an appropriately qualified entity to feed into the question of whether a course of action is likely to lead to a better outcome. However, prior to that time only the directors were to obtain the advice in order to satisfy the requirement in s 588GA(1). They contend that this supports an inference that the directors were Mr Edwards’ and Hamilton Locke’s clients.

141    Secondly, the Interested Persons rely on s 588GA(1) which, they submit, by its terms provides protection for directors only and not for the company. They contend that the mere fact that safe harbour protection relies on matters that also benefit the company, because the course of action needs to be reasonably likely to lead to a better outcome for the company, does not mean that the protection itself is for the company’s benefit. They say that the protection is derivative from a course of action and it is the protection for which the directors seek the advice.

142    Thirdly, the Interested Persons submit that the protection afforded by s 588GA is prospective. There is no liability until a liquidator is appointed to the company and brings an application for contravention of s 588G of the Corporations Act and, when that occurs, the directors rely on the protection afforded by that section against the company. That is s 588GA acts now to protect the directors from possible future liability to the company at the suit of a liquidator. In those circumstances, the Interested Persons submit that the interests of directors and the company would necessarily be adverse and thus it would make no sense for the advice given about safe harbour to be sought by the directors on behalf of the company.

143    The SPLs take a different view about the effect of s 588GA and related sections of the Corporations Act. They submit that insolvent trading provisions have as their predicate the incurring of a debt at the time the company is insolvent or there are reasonable grounds for believing the company would become insolvent. The duty imposed on a director is to prevent the company from incurring a debt when the director was aware, or a reasonable person in a like position would be aware, that there are grounds for suspecting that the company is insolvent: s 588G of the Corporations Act. To like effect the SPLs focus on the company in s 588GA, namely that the prohibition on insolvent trading will not apply in relation to a person (i.e. a director) and a disposition if, at a time after the person starts to suspect that the company is insolvent, the person starts to develop a course of action that will lead to a better outcome for the company.

144    The SPLs submit that, in this context, insolvency of a company and its ability to incur a debt is quintessentially a matter in which the company has an interest and, as such, to the extent the Interested Persons submit that the safe harbour regime is only for the benefit of directors, that is incorrect.

145    I make the following observations about the SPLs’ submissions set out in the preceding paragraphs.

146    First, in considering the relevant provisions, the SPLs focus on one aspect of the text, namely references to the “company”. Of course the duty imposed on a director pursuant to s 588G(2) of the Corporations Act is to prevent the company from incurring a debt when insolvent or when a reasonable person in the position of the director might suspect it is insolvent. That reflects the role of a director and the requirement that he or she act in the best interests of the company to which he or she is appointed. However, as the Explanatory Memorandum notes, the safe harbour regime was introduced to facilitate more successful company restructures. It was intended to give directors the ability to consider restructuring before a formal insolvency process, and to afford legal protection to the directors while doing so.

147    Secondly, the SPLs do not give sufficient weight to s 588GA(2) of the Corporations Act which provides for the matters to be considered in assessing whether a course of action is reasonably likely to lead to a better outcome for the company. In doing so, regard is to be had to whether the person (i.e. the director) undertook the steps set out in that provision. For example, properly informing him or herself about the company’s financial position, taking appropriate steps to ensure the company is keeping appropriate financial records and so on. The focus of s 588GA(2) (as it was at the time of the events the subject of this application) is clearly on steps taken by a director at the time. While the steps concern the company, they are to be taken by the director in each case and can be relied on by the director in invoking s 588GA of the Corporations Act in answer to an allegation of contravention of the insolvent trading provisions.

148    Thirdly, the SPLs rely on Octet Finance Pty Ltd v Macgregor [2026] NSWSC 103 where Hmelnitsky J referred (at [207]) to [1.16] of the Explanatory Memorandum (see [125] above) and continued at [208]-[209]:

208    The statutory purposes described in this extrinsic material are readily identifiable from the terms of the legislation itself. Importantly, as the language of s 588GA makes clear, although the Subdivision provides a safe harbour for directors, it does so only to the extent that the directors pursue a better outcome for the company.

209    It is therefore wrong to characterise a ‘course of action’ within the meaning of s 588GA(1)(a) as one that is necessarily pursued for the benefit of the directors. It is also wrong to characterise the matters in s 588GA(2) as matters undertaken for the benefit of the directors. A director obtains no relevant personal benefit merely by pursuing a ‘course of action’ to restructure a company, nor from taking the various steps identified in subs (2), such as properly informing himself or herself of the company’s financial position. That is because the alternative to doing those things is either not incurring the relevant debt (within the meaning of s 588G(1)) in the first place or else placing the company into external administration. The notion that Subdivision C supplies an incentive for directors to act in their own interests, or that it rewards them for doing so, is mistaken. To the extent directors enjoy any personal benefit from protection under the safe harbour provisions, they only do so indirectly as a result of taking steps to secure a benefit for the company.

149    In that proceeding Octet Finance Pty Ltd, a creditor of Mrs Mac’s Pty Ltd, sought to recover the outstanding balance of an unsecured credit facility it provided to Mrs Mac’s from the CFO and company secretary of Mrs Mac’s, Mr Markwart, and from each of the directors of Mrs Mac’s. Octet Finance contended that the defendants engaged in misleading or deceptive conduct contrary to s 18 of the Australian Consumer Law (ACL) being Sch 2 to the Competition and Consumer Act 2010 (Cth) and engaged in unconscionable conduct contrary to s 21 of the ACL. As part of its case, Octet Finance attempted to establish the existence of an express and/or implied agency as between Mr Markwart and the directors of Mrs Mac’s. As Mrs Mac’s was in liquidation and unable to satisfy the debt, the agency argument was the legal mechanism by which Octet Finance sought to attribute Mr Markwart’s impugned conduct to the directors, such that Octet Finance could seek damages against those directors personally.

150    At [12] Hmelnitsky J observed that there were two significant areas of dispute between the parties, the first of which concerned the liability of the directors, none of whom had any direct communication with Octet Finance in the relevant period. His Honour said in relation to that area of dispute at [13]:

… All of the communications on which Octet claims to have relied were with Mr Markwart. A significant aspect of Octet’s case is that in communicating with Octet, Mr Markwart was acting as agent for the directors in their personal capacities, or that he was authorised to so act by the directors in their personal capacities. This conclusion is said to follow from the fact that the directors were seeking to implement a plan or course of action that would cloak them with the protections of s 588GA. But for those protections, they would potentially have been exposed to personal liability for insolvent trading. Octet contends that managing unsecured creditors was an aspect of the directors’ course of conduct in maintaining the protection of s 588GA and that they appointed Mr Markwart as their agent to do so. Thus, Octet contends that the representations which Mr Markwart made to it about the company’s proposed restructuring were made by him as agent for the directors in their personal capacities.

151    In the part of Octet relied on by the SPLs (see [148] above), Hmelnitsky J was considering Octet Finance’s case based on implied agency, as summarised above. At [208] Hmelnitsky J recognised that Subdivision C (Safe harbour from breach of duties) provides a safe harbour for directors but only to the extent that they attempt to pursue a better outcome for the company. At [209] his Honour expressed what I understand to be uncontroversial between the parties, namely that a course of action undertaken pursuant to s 588GA of the Corporations Act is for the benefit of the company. So much is apparent from the text of the s 588GA. However, that is to be contrasted with the advice given to directors about invoking the safe harbour regime, any steps they need to take and any consequences of having done so, including their success or otherwise in doing so. The decision in Octet says nothing about the status of that advice.

152    The course of conduct undertaken pursuant to s 588GA of the Corporations Act is for the company and is intended to be for its benefit. However, the protection afforded by s 588GA and related provisions is for the directors. The directors have an interest in obtaining legal advice to ensure they satisfy the statutory conditions necessary to immunise themselves from liability against a claim of insolvent trading initiated on behalf of the Company under s 588G(2) of the Corporations Act. Clearly, the interests of the directors and the company are distinct.

153    In light of my analysis above, in my view, the safe harbour regime has a dual purpose where the second purpose is only enlivened when the company goes into liquidation and, as the Interested Persons submit, the liquidator brings a proceeding for contravention of s 588G of the Corporations Act. In those circumstances, there is nothing unusual about the directors seeking advice personally (and to the exclusion of the company in question) about the effect of and manner in which they should implement the safe harbour regime.

154    A final factor relied on by the Interested Persons and which, in my view, is a powerful indicia that Hamilton Locke was acting for the directors alone in relation to the safe harbour advice is that Mr Edwards and his team continued to act for them after the appointment of the administrators. At that point Mosaic’s and the directors’ interests diverged, and yet Mr Edwards continued to act for the directors in their ongoing interactions with the administrators and, I would infer, considered that he was able to do so notwithstanding a clear divergence of interest. That that occurred is best understood as Hamilton Locke considering that it acted for the directors exclusively in relation to the safe harbour advice.

155    Having regard to those matters I would infer a retainer between Hamilton Locke and the directors alone in relation to the provision of the safe harbour advice.

156    Before leaving this topic, it is necessary to address the letter dated 23 April 2026 from Sparke Helmore to White & Case (see [83] above) in which Sparke Helmore relayed its instructions that in each matter in which Hamilton Locke was engaged, that engagement was with the relevant corporate entity and not with the directors of those entities, “irrespective of the subject matter of each engagement”. However, Hamilton Locke’s stated understanding is not conclusive. It is a relevant consideration and its weight must be assessed against the directors’ reasonable expectations. As I have already observed at [132] above, a legal retainer can be established if the recipient of the advice, in this case, the directors, held a bona fide belief on a reasonable basis that they were the lawyers’, in this case Hamilton Locke, client.

The Deloitte Retainer

157    It is next necessary to consider the role of Deloitte. The Interested Persons submit that, on one view, I need not concern myself with the scope of the retainer with Deloitte but that the question is an objective one, namely whether information passing to or from Deloitte was for the purpose of assisting Hamilton Locke to provide the safe harbour advice to the directors. The Interested Persons submit that the engagement letter with Deloitte needs to be considered in that context.

158    The terms of the Deloitte Retainer are set out at [41] above. The Deloitte Retainer is a confused letter which is internally inconsistent. On the one hand, it includes statements that indicate that their retainer and the advice provided pursuant to it is for the purpose of enabling Hamilton Locke to provide safe harbour advice to the directors. On the other hand, it refers to an engagement “exclusively” between the “Group” and Deloitte, with Hamilton Locke authorised to instruct Deloitte on behalf of the “Group”, solely for the purpose of allowing Hamilton Locke to provide legal advice, including safe harbour advice to the “Group”.

159    The Deloitte Retainer is addressed to Hamilton Locke and its terms were accepted by Hamilton Locke and Mosaic (see [43] above). It is not clear why, given that that it is addressed to Hamilton Locke, the Deloitte Retainer was also signed and accepted by Mr Softa as CFO. One possibility is that he signed on behalf of Mosaic because Mosaic was ultimately responsible for paying Deloitte’s fees for the work done pursuant to the Deloitte Retainer. Another is that he signed it as part of his role as a “conduit” or assistant to the directors in providing the necessary information for them to obtain the safe harbour advice. Yet another, promoted by the SPLs, is that he signed the Deloitte Retainer because the engagement is, as it says, with the Mosaic Companies. While each of these is an available inference, in the absence of evidence, each is also speculative.

160    The reality is that, given the confusion in the Deloitte Retainer, it is not possible to conclude whether the work done pursuant to it was for the directors alone, the directors and Mosaic, or the “Group” (i.e. the Mosaic Companies). On its face and in light of the way it is addressed the Deloitte Retainer was, in the first instance, with Hamilton Locke. That Mosaic may have paid for the advice provided by Deloitte (and for that matter, Hamilton Locke) is not determinative and is of no particular import: see SMBC Leasing and Finance, Inc v Flexirent Capital Pty Ltd (Discovery) [2025] FCA 459 at [103] (Needham J) and [133(5)] above. But, in any event, I accept the Interested Persons’ submission that the scope of the Deloitte Retainer is not the critical issue here. Rather, the question to determined is whether the communications made to or by Deloitte were for the purpose of assisting Hamilton Locke to provide advice to the directors. To the extent they were, they will be subject to a claim for legal professional privilege by the directors. That question is not one that can be resolved immediately. Rather it is to be considered in the second part of the SPLs’ application in connection with the consideration of whether particular categories of documents are privileged.

161    It follows from the above that there was a retainer between Hamilton Locke and the directors in relation to the provision of the safe harbour advice. The communications with Hamilton Locke for the purpose of obtaining that advice and with Deloitte (insofar as they concerned or were connected with the provision by Hamilton Locke of the safe harbour advice to the directors) and other documents recording that advice are subject to exclusive privilege in the hands of the directors.

Confidential communications

162    The final matter to address is confidentiality. The SPLs say that the communications in relation to the safe harbour advice were not “confidential communications” and so do not invoke the cloak of legal professional privilege. The SPLs identify two reasons why I would reach that conclusion. I address each in turn.

Sharing of the safe harbour advice with employees of the Mosaic Companies

163    The SPLs submit that the communications that constituted the safe harbour advice were not confidential communications because they were shared with employees of the Mosaic Companies. In particular, the SPLs dispute that Mr Softa was a “conduit” for or assistant to the directors in circumstances where draft iterations of the safe harbour advice were sent to both Mr Softa and one or more directors. They say that there is simply no evidence that Mr Softa was acting either expressly or impliedly on behalf of, or as “conduit” for, the directors.

164    The evidence concerning the sharing of communications with senior company employees is set out at [52] above. Those communications were shared with those individuals for the specific purpose of providing relevant information to Hamilton Locke and Deloitte to feed into the safe harbour advice. The provision of the safe harbour advice required information (financial and otherwise) that the directors simply did not have, or at least to which they did not have ready access. As Ms Frank said in cross-examination, “there were certain people that needed to be in the tent… to be able to deliver the information that was needed to comply with [the] safe harbour regulations”.

165    I do not accept that because the safe harbour advice (and drafts thereof) was shared with senior employees (and in some cases their executive assistants) charged with assisting the directors, those communications were not treated as confidential for the purposes of maintaining the directors’ exclusive privilege. Those circumstances cannot amount to a waiver vis-a-vis the Mosaic Companies who employed those staff members.

The Board minutes

166    The SPLs raise two further related matters in relation to the Board minutes. First, they submit that the inclusion of the safe harbour advice in the minutes of directors’ meetings is inconsistent with that advice being kept confidential from the Mosaic Companies or third parties including the various employees to whom those minutes (and the Board packs in which they were contained) were disseminated. Secondly, the SPLs contend that the provision of the Board minutes which included communications in relation to the safe harbour advice to the Mosaic Companies’ auditors, BDO, was inconsistent with the maintenance of confidentiality over those communications.

167    I make the following observations about these matters.

168    As the Interested Persons submit, the minutes of Board meetings form part of a company’s records, confidentiality attaches to Board meetings and, by extension, to the minutes of those meetings. That view is reinforced by the fact that members only have a statutory right to obtain copies of minutes of meetings of members and not minutes of meetings of directors: see s 251B of the Corporations Act. Any right of a member to access the minutes of Board meetings is conditional on first obtaining a court order: see s 247A of the Corporations Act.

169    However, as the minutes are books of the company, the confidentiality in them inures to the benefit of the company and not the individual directors, who of course have a duty to maintain the confidentiality. I do not accept the Interested Persons’ submission that because the matters discussed at Board meetings (and, it follows, recorded in the minutes) is confidential to the company, it is not unreasonable for directors to allow to be included in the meetings (and in the related minutes) matters of advice which are confidential to them. The Interested Persons submit that is because the only circumstances in which those minutes will come to the attention of any other person, is in circumstances where those persons will understand and be bound by confidentiality themselves.

170    The real questions that arise in this context are whether the inclusion of communications in relation to safe harbour advice which are subject to a claim for exclusive privilege in the minutes of Board meetings and/or provision of those minutes to a company’s auditors amount to a waiver of the exclusive privilege in those communications. I address those questions below.

WAIVER

171    In light of my finding that the directors have exclusive privilege over the safe harbour advice it is necessary for me to consider the question of whether the directors have, by their conduct, waived their claim for exclusive privilege in the relevant communications either to the administrators and/or to the world at large.

172    The SPLs bear the onus of establishing that there has been a waiver on the part of the directors.

Timeline and Memorandum in response to the October Notice and 5 December Letter

173    The SPLs submit that in providing the Timeline, the Memorandum and their attachments (over which the directors now claim privilege) to the administrators to dissuade them from advancing claims against the directors, the directors acted inconsistently with any confidentiality in those documents. They contend that the evidence, given by the Interested Persons in cross-examination and in the contemporaneous communications, makes it plain that there was a deliberate decision made by the directors to provide the material to the administrators in an attempt to dissuade the administrators/GPLs from pursuing insolvent trading investigations and actions.

174    The SPLs submit that Ms Frank’s evidence was evasive, that I would not accept her evidence about whether she received the Timeline before it was sent to the administrators and that her credit was so undermined in cross-examination that the Court would not accept any contentious matters in her affidavits. They also submit that, even if I do accept her evidence, Ms Frank conceded that after she became aware of the Memorandum, Timeline and associated documents having been provided to the administrators, she never made any complaint when, in her words, she received “an FYI after it had been sent”.

175    The SPLs submit that Mr Wilshire’s evidence was unequivocal, without elaborating as to why that is so.

176    In relation to the words used by Mr Facioni in his 12 December Email, the SPLs submit that it is no answer to say that the directors had no choice but to provide that information. It would have been open to Mr Facioni to provide a more limited response. For example, by stating that he “received advice but it is subject to a claim of privilege”. The SPLs contend that this is an extreme case because the documents were summarised and a copy thereof provided by way of hyperlinks, which is plainly a waiver.

177    The SPLs submit that it is incorrect to say that the documents were sent in response to a specific request made by the administrators “who had statutory authority” to demand it. They say, having regard the operation of s 438C(3) and s 588GB of the Corporations Act and the references therein to “books of the company”, if the directors thought that the documents did not fall into that category, they could have refused to provide them. The SPLs make a similar submission in relation to the 5 December Letter.

178    In summary, the Interested Persons make two submissions in response. First, they say that the directors cannot have waived their privilege over the safe harbour advice in circumstances where the directors were compelled by the administrators to deliver up the safe harbour advice in response to 29 October Letter, the October Notice and the 5 December Letter. Secondly, they say that even if there was a waiver by the directors of their exclusive privilege over the safe harbour advice, that waiver did not extend beyond the administrators.

179    In order to consider whether the directors waived their exclusive privilege in the safe harbour advice, it is convenient to commence with the events in October, November and December 2024 and the directors’ communications, and provision of information to the administrators set out at [61]-[72] above.

180    As set out at [62] above, the 29 October Letter which was sent to each of the directors enclosed the October Notice. The October Notice was issued under s 438C of the Corporations Act and sought the books and records specified in the schedule, being books of the “Companies” that, in Mr Gracanin’s case, were in his possession. The “Companies” were defined as Mosaic “and its subsidiaries listed in Schedule A” (namely, the Mosaic Companies).

181    The schedule in the October Notice provided:

All books and records of the Companies including but not limited to the Certificate of Incorporation, the Memorandum and Articles of Association or Companies’ Constitution, the Common Seal, Directors’ Minute Book, Members’ Minute Book, Statutory Registers and Seal Registers, copies of all documents filed with the Australian Securities and Investments Commission, copies of taxation returns, official signed copies of Annual Accounts, cashbooks, journals, general ledgers, all banking records including bank statements, cheque butts, payment vouchers, deposit books, correspondence in and correspondence out, copies of any contracts entered into including hire-purchase and leasing agreements, plant or asset registers, stock records, depreciation schedules, budgets, titles to any land owned, certificates for any shares or other securities owned, motor vehicles registration certificates, insurance policies, any other deeds or documents relating to any matter whatsoever.

182    It is not clear whether Mr Gracanin (or any of the other directors who received similar letters and notices) produced any documents to the administrators in answer to the October Notice. However, I pause to observe that the October Notice in its terms only sought production of the books and records of the Mosaic Companies.

183    Based on the evidence before me, in November 2024 Hamilton Locke commenced the collation of documents and corresponded with the administrators about their work, including by providing a draft timeline. As I have already found to be the case, Hamilton Locke was acting for the directors in that capacity. They clearly could not be acting for the Mosaic Companies given that those companies were in the hands of the administrators at that time.

184    There is no evidence about how Hamilton Locke came to be doing this work and sharing its progress with the administrators. It is difficult to see how it could be work undertaken in response to the October Notice which generally sought production of the Mosaic Companies’ books and did not expressly raise the question of reliance on the safe harbour regime in the Corporations Act.

185    The 5 December Letter set out a request from the administrators to the directors focused on s 588GB of the Corporations Act and the provision of safe harbour advice (see [69] above). However, the 5 December Letter principally sought that advice and related information insofar as it was given to, or provided by, the Mosaic Companies as follows:

1.    A summary of your reliance on the safe harbour provisions including the events leading up to first seeking to rely on safe harbour, engagement with advisors and the plans developed by the Directors’ and Management of the Companies.

2.    Copies of all information provided to Deloitte and Hamilton Locke by the Companies (including its directors, officers, employees or agents) in order to analyse the Companies’ financial position.

3.    Copies of all written output prepared by either Deloitte or Hamilton Locke in relation to the advice given to the Companies as safe harbour advisors.

4.    Copies of all written communications between either Deloitte or Hamilton Locke and the Companies (including its directors, officers, employees or agents).

5.    Copies of all written communications between either Deloitte or Hamilton Locke and creditors, suppliers, customers, secured creditors, lenders of the Companies or other third parties doing business or contracting with the Companies.

6.    Any other records concerning the corporate structuring plan and/or safe harbour advice provided by Deloitte or Hamilton Locke to the Companies.

    (Emphasis added.)

186    As is apparent from the way in which the 5 December Letter is framed, in categories 2 to 6 inclusive, the administrators sought advice provided to, and communications with, the Mosaic Companies. The inclusion of “directors, officers, employees or agents” in the context of the companies, cannot be understood to capture advice to, or confidential communications with, the directors exclusively. Rather it seeks to ensure that all communications and other documents relating to the Mosaic Companies are provided in each category, notwithstanding their source or to whom they are directed within the Mosaic Companies.

187    Category 1 in the 5 December Letter is different. It sought a summary of the directors’ reliance on the safe harbour provisions in the Corporations Act and related matters. It was seemingly carefully worded in that it required a “summary” or narrative rather than the actual documents. One available inference is that the administrators did not wish to compel the directors to provide material which might be subject to a claim for legal professional privilege.

188    Mr Facioni provided the Timeline and Memorandum with a link to the documents referred to therein under cover of the 12 December Email. The text of Mr Facioni’s email is set out at [71] above.

189    The 29 October Letter referred to s 438B of the Corporations Act. That section imposes obligations on the directors of a company following the appointment of administrators. Relevantly, s 438B(1) requires each director, as soon as practicable after the appointment of an administrator:

(1)    to deliver to the administrator all books in the director’s possession that relate to the company “other than books that the director is entitled, as against the company and the administrator, to retain”; and

(2)    if the director knows where other books relating to the company are, to tell the administrator of their whereabouts.

190    Section 438B(4) provides that a person must not fail to comply with, among others, s 438B(1). An offence based on s 438B(4) is one of strict liability: s 438B(5). However, s 438B(4) does not apply to the extent the person has a reasonable excuse: s 438B(6).

191    Insofar as the October Notice is concerned, s 438C of the Corporations Act is titled “[a]dministrator’s rights to company’s books” and relevantly provides:

(1)    A person is not entitled, as against the administrator of a company under administration:

(a)    to retain possession of books of the company; or

(b)    to claim or enforce a lien on such books;

but such a lien is not otherwise prejudiced.

…

(3)    The administrator of a company under administration may give to a person a written notice requiring the person to deliver to the administrator, as specified in the notice, books so specified that are in the person’s possession.

(4)    A notice under subsection (3) must specify a period of at least 3 business days as the period within which the notice must be complied with.

(5)    A person must comply with a notice under subsection (3).

(6)    Subsection (5) does not apply to the extent that the person is entitled, as against the company and the administrator, to retain possession of the books.

(7)    An offence based on subsection (5) is an offence of strict liability.

192    Both the 29 October Letter and the 5 December Letter referred to s 588GB of the Corporations Act (see [61] and [69] above).

193    The Interested Persons rely on the combined effect of ss 438B, 438C and 588GB of the Corporations Act to submit that there was no waiver by them of their exclusive privilege in the safe harbour advice and related documents by reason of provision of the material under cover of the 12 December Email (or the provision of any earlier drafts).

194    One of the Interested Persons, Mr Gracanin, submits that where there is a duty to disclose, disclosure pursuant to that duty does not amount to a waiver. That is consistent with the general principle that disclosure of a privileged communication to a third party for a limited and specific purpose may not necessarily amount to a waiver, referring to Mann v Carnell at [29] (Gleeson CJ, Gaudron, Gummow and Callinan JJ).

195    Mr Gracanin submits that s 588GB of the Corporations Act is a preclusionary provision. So much can be accepted. Section 588GB(1) prohibits the admissibility in evidence of the books and records of the company in a “relevant proceeding” where a person fails to permit the inspection of, or deliver books of the company in accordance with, relevantly, a notice given under s 438C(3) or under s 438B(1) of the Corporations Act. Section 588GB(2) is to similar effect but concerns a failure to give information about the company in accordance with subss 438B(2) and (3), among others.

196    The term “relevant proceeding” is defined in s 588GB(7) to mean, among others, a proceeding for, or relation to, a contravention of s 588G(2) and in which a person seeks to rely on s 588GA(1) of the Corporations Act.

197    Section 588GB(4) provides for an exception to the operations of s 588GB(1) and s 588GB(2) (see [124] above).

198    Mr Gracanin points to the Explanatory Memorandum which provides in relation to the introduction of s 588GB, among other things, that:

1.86    The effect of the restrictions in the new section 588GB is that a director will not be able to deny a liquidator, administrator or controller access to a company’s books or information about a company and later use these books or the information to evidence safe harbour.

1.87    These restrictions will limit potential dishonest activity where books and information are fabricated to make use of the safe harbour.

…

1.89    The restrictions will not apply to directors who were not notified that a failure to provide the books or information will prevent them from being later used by the directors as evidence in relation to the safe harbour. [Schedule 1, Part 1, item 2, paragraph 588GB(3)(b) and subsection 588GB(5)]

1.90    A failure to notify a director about the consequences of not providing books or information about a company will not otherwise impact the validity of any notice, order or warrant that is issued. [Schedule 1, Part 1, item 2, subsection 588GB(6)]

1.91    Courts will have a power to determine that the safe harbour will be available to a director even where books or information were not provided as required under new section 588GB. This is to ensure that a director would not be taken out of safe harbour where appropriate in the interests of justice.

199    Mr Gracanin submits, based on the above, that the reason why there is a disclosure obligation at an earlier stage of an external administration is to establish the fact of the receipt, by directors at the relevant time, of the documentation and information directed to the safe harbour issues in s 588GA that are required to be satisfied. This also circumvents the risk of fabricating documents or information at a later point in time to try and establish a safe harbour defence. He contends that s 588GB of the Corporations Act provides for a punitive consequence where a director does not provide the relevant documentation and information. Unless a director can rely on an exception in subss 588GB(3) or (4), a failure to provide information requested in a notice that invokes s 588GB deprives the director of the ability to rely on the relevant material sought by that notice.

200    Mr Gracanin submits that the inability to rely on such documentation in defence of an insolvent trading claim will deprive the director from being able to prove, on the balance of probabilities, the matters necessary to establish the safe harbour defence in s 588GA. That is, a director stands to lose a valuable right from a failure to provide the documentation or information requested by an external administrator for the purposes of s 588GB.

201    Mr Gracanin refers to the 29 October Letter, which he contends created an obligation for the purpose of s 438B of the Corporations Act and thus expressly invoked the consequence contemplated by s 588GB, and the 5 December Letter, to submit that, although one could accept that not providing privileged communications may constitute a reasonable excuse for the purposes of s 438B(6) of the Corporations Act, it is unclear why a director should put him or herself at risk of committing a strict liability offence. He says that, at the very least, the directors were labouring under the appreciable risk of losing the rights afforded by s 588GA of the Corporations Act. Mr Gracanin submits that in those circumstances, the Court would readily conclude that the directors were under a duty of disclosure with respect to the materials requested by the 5 December Letter.

202    Mr Gracanin’s submissions, which were adopted by each of the Interested Persons, overlook a number of fundamental aspects of the 29 October Letter, the October Notice and the 5 December Letter.

203    First, the 29 October Letter referred to s 438B(1) of the Corporations Act and the requirement for each director to deliver all books and records of the Mosaic Companies to the administrators or to inform the administrators of their whereabouts if known.

204    Secondly, s 438C concerns an administrator’s rights to the company’s books. In accordance with that purpose, the October Notice, which was a notice under s 438C(3), in its terms only sought books of the Mosaic Companies.

205    Thirdly, the 5 December Letter was carefully framed. As is evident from its terms (see [69] above) save for category 1, it sought communications between Deloitte and/or Hamilton Locke and the Mosaic Companies and information and advice given by them as safe harbour advisers to the Mosaic Companies. It did not seek communications with the directors where they were made to the exclusion of the Mosaic Companies. While category 1 of the 5 December Letter is different, it did not seek production of documents. Instead, it sought a summary of the directors’ reliance on the safe harbour regime in the Corporations Act. In other words, the administrators sought documents and communications with the Mosaic Companies, in relation to which there could be no claim for privilege as against them and were otherwise more careful about the information they sought directly from the directors.

206    Relatedly, the 5 December Letter referred to s 588GB of the Corporations Act but it was not in its terms a notice given under any of the sections referred to in that section and in particular ss 438B(1), 438B(2), s 438B(3) or 438C(3) of the Corporations Act. Mr Gracanin’s submits that by referring back to the 29 October Letter, the 5 December Letter inferred that the request for information for the purposes of s 588GB was one that fell within s 438B. I do not accept that submission. The only reference to the 29 October Letter (incorrectly referred to as a letter dated 28 October 2024) is in fact a reference to the October Notice and a statement that staff of the Mosaic Companies are assisting with the provision of information including the Mosaic Companies’ books and records. It is not possible to infer that the 5 December Letter was in fact a request for information pursuant to s 438B of the Corporations Act.

207    Notwithstanding the matters set out above, the directors elected to provide communications over which they have a claim for exclusive privilege. Given the terms of each of the requests from the administrators for information, I do not accept that the directors were compelled to provide those communications over which they had such a claim to the administrators. That said, there is good reason why, in light of the purpose of the safe harbour regime, and in the interests of minimising exposure to future litigation, a director might choose to be as frank as possible in response to such a request. However, to the extent a director does so, and provides material that is otherwise subject to a claim for privilege, they may well lose that protection.

208    In this case the directors were advised by Hamilton Locke in responding to the 5 December Letter and proceeded in the manner they did (notwithstanding the express terms of the 5 December Letter) to provide a fulsome response to the administrators and to provide copies of documents over which (subject to a challenge from the SPLs in relation to some categories) they have a claim for exclusive privilege. In my view, in providing that material and information in response to the 5 December Letter as they did, and subject to resolving the effect of the 12 December Email, they waived their exclusive privilege in that material.

12 December Email

209    That then brings me to the effect of the 12 December Email under cover of which the material referred to in the preceding paragraph was provided. The Interested Persons submit that the effect of the 12 December Email was to maintain their exclusive privilege in the communications provided to the administrators, insofar as they are subject to such a claim. They contend that the disclosure was on a limited basis and for an expressly confined purpose, and that they expressly sought to preserve their privilege.

210    It is true that by the 12 December Email the directors sought to maintain their exclusive privilege in the material provided. The 12 December Email included:

The Directors ask that these documents not be shared (except to your legal advisors) without the written consent of the Directors.

The provision of these documents is not intended to waive any claim of legal professional privilege by the Directors, whose claims for privilege are maintained. Any disclosure is inadvertent and unintentional and ought not to affect the confidential and privileged nature of advice provided

211    I make the following observations about the 12 December Email.

212    First, the Timeline and Memorandum provided with it had been approved by the directors, including Mr Evans and Ms Frank. There is no evidence that they were approved by Ms Morphet, a topic to which I return to at [225] below.

213    Secondly, the directors asked the administrators not to share the documents without their written consent. That is, their disclosure was, on the face of the 12 December Email, to the administrators only.

214    Thirdly, the directors informed the administrators that by providing the documents: (1) they did not intend to waive any legal professional privilege in them; (2) they maintained their claim for legal professional privilege; and (3) any disclosure was “inadvertent and unintentional and ought not to affect the confidential and privileged nature of advice provided”.

215    By the 12 December Email the directors expressly stated that they did not waive privilege. However, notwithstanding their express reservation, the question is whether their deliberate disclosure was inconsistent with maintaining the confidentiality which the privilege protected: see Mann v Carnell at [29] (see [98] above), such that there has been an implied waiver. In my view, for the reasons that follow, the answer to that question is yes.

216    The provision of the materials was an intentional act. The directors took advice from their lawyers and prepared detailed material, accompanied by the underlying documents. That material was then provided to the administrators. After the 12 December Email Hamilton Locke provided documents which were missed from the original production due to oversight or access issues, with the authority of the directors. Contrary to Mr Facioni’s characterisation, the provision of the material could not be classified as inadvertent or unintentional.

217    I do not accept that the documents and accompanying material were provided in answer to a compulsory process such that the principle in Woollahra Municipal Council (see [103] above) would apply. As I have already observed, the 5 December Letter by which the safe harbour material was sought was not a compulsory process. Other than referring the directors to s 588GB, and thus making them aware of its potential consequences, it did not rely for production of the material on any compulsory powers for production.

218    The privileged material was prepared and given to the administrators to “provide [them] with an overview of the [d]irectors’ reliance on the safe harbour regime from time to time and to outline the background and steps taken”. It was not to “be read as a complete defence to any potential future insolvent trading claim brought by a liquidator against them”. The directors reserved their right to provide further information as required. The objective purpose of providing the material clearly included the ability for the administrators to assess the strength of the directors’ defence to any insolvent trading claim that might be brought in the future based on the safe harbour regime and contemplated that such a proceeding might be brought in the future by liquidators: see Asahi (No 2) at [80]. Given that, the directors must have appreciated that the administrators (and if appointed, liquidators) may wish to share the material with their lawyers (indeed that was acknowledged in the 12 December Email) and that liquidators subsequently appointed may wish to deploy the material in examinations or other court proceedings. As was the case in Asahi (No 2) the administrators (and subsequently liquidators) were not under an implied obligation not to disclose the contents of the material provided under cover of the 12 December Email while pursuing the purposes for which it was provided: Asahi (No 2) at [80].

219    The final aspect of the 12 December Email to consider is the Interested Persons’ submission that if there was a waiver by them, it was limited only to the administrators. In the first instance, that submission is based on the request in the 12 December Email that the administrators not share the documents with anyone other than the administrators’ lawyers without their consent. That stated basis on which the material was provided does not, in my view, mean that the waiver was limited to the administrators.

220    First, the matters discussed at [218] above address this question.

221    Secondly and relatedly, contrary to the Interested Persons’ submission, it would have been apparent to the directors that, in the absence of the implementation of a deed of company arrangement, the administrators would likely become the Mosaic Companies’ liquidators, which is what occurred. It is artificial to suggest that disclosure, and thus any waiver, was limited to those same persons but only in one capacity, particularly when both as administrators and as liquidators, those persons were and are the representatives of the Mosaic Companies. Thus, at the very least, disclosure was to the administrators whether in that capacity or as the GPLs, as they later became. The SPLs were appointed for a particular purpose and, unsurprisingly, were given access to the Mosaic Companies’ books for that purpose. The SPLs stand in the shoes of the GPLs insofar as they are undertaking that role.

222    Thirdly, unlike cases such as Goldberg v Ng, this is not a case where the Interested Persons seek to prevent disclosure to a third party. They seek to prevent disclosure to the very party to who they provided the material.

223    Lastly, in my view the waiver extends to all the world. In Asahi (No 2) in considering a similar issue Bromberg J, having found that there was an implied waiver of the privilege in the insurer’s EA report, relevantly said at [82]:

… In my view, the waiver was complete and not merely limited to the insurer. That is because as Gordon J reasoned at [16]–[17] of Cadbury Schweppes Pty Ltd v Amcor Ltd (2008) 246 ALR 137; [2008] FCA 88, by reference to the observations made by Branson, Sundberg and Allsop JJ in Liberty Funding Pty Ltd v Pheonix Capital Ltd (2005) 218 ALR 283; [2005] FCAFC 3, once the privilege holder provides the privileged information to another person and cannot control its further dissemination by that person, the privilege is destroyed. …

224    The same must apply in this case. That is, having found that the directors waived their exclusive privilege in the material provided under cover of the 12 December Email, the waiver was complete and not limited to the administrators. The directors cannot control further dissemination of the material by the administrators (now the SPLs) or the GPLs.

Ms Morphet

225    The final question that arises is whether there has been a waiver in circumstances where there is no evidence that Ms Morphet, who was a director from 23 February 2015 to 21 June 2021, gave her consent to the provision of the material to the administrators. The Interested Persons say that, as the exclusive privilege is a joint privilege, in the absence of such evidence there can be no waiver, at least in relation to the documents brought into existence during the period in which she was a director.

226    Ms Morphet was served with a copy of the originating application and filed a notice of acting – appointment of lawyer on 11 May 2026. While she did not participate in the final hearing, she filed submissions indicating that she did not wish to be heard on the question of privilege and would abide by any order of the Court as to whether privilege subsists in the documents in issue. Ms Morphet only wishes to be heard on the question of costs.

227    The SPLs made the following submissions.

228    First, in circumstances where there is no evidence of Ms Morphet joining in the waiver, she can continue to maintain the exclusive privilege in the material. However, the inverse does not apply. That is, the directors who have waived cannot take the benefit of the fact that there is one amongst them who has not. The only authority to which I was taken which touches upon this question is Farrow Mortgage Services. It is instructive to set out Sheller JA’s reasons concerning the question of waiver where there is a joint privilege. Relevantly his Honour said at 608:

… Logically the joint nature of the privilege means that all to whom it belongs must concur in waiving it. Theirs is one inseverable right. In pars 20-29 the learned editors of Phipson say that in the case of joint interest, it is sufficient, as against third persons, if only one of the interested parties claims the privilege, though all must concur in waiving it. In Rochefoucauld v Boustead [1897] 1 Ch 196, two parties were engaged in a joint venture. The first invited the second to consult his solicitor but, in proceedings against both parties, waived any privilege in respect of what took place. The second party was held to remain entitled to insist upon the maintenance of the privilege.

229    His Honour casts some doubt on the proposition that all who have the benefit of the privilege must join in its waiver referring to Rochefoucauld v Boustead [1897] 1 Ch 196, which tends to support the SPLs’ submissions, but takes the matter no further. Notwithstanding that, the preponderance of authority has proceeded on the basis of Sheller JA’s statement at 608 that, in the case of joint privilege, all must concur in waiving it: see for example SMBC Leasing at [88] (Needham J); Commissioner of Taxation v White (No 2) [2024] FCA 1291 at [121] (Kennett J); Ghedia (liquidator), in the matter of SK Homes Aus Pty Ltd (in liq) [2024] FCA 859 at [33]-[34] (Goodman J); Kayler-Thomson v Colonial First State Investments Limited (No 2) [2021] FCA 854; (2021) 153 ACSR 663 at [76] (Colvin J); Davaria Pty Ltd v 7-Eleven Stores Pty Ltd [2018] FCA 760 at [47] (Murphy J); Morton v Bolinda Publishing Pty Limited [2017] FCA 187 at [78] (Burley J); Equititrust Limited (in liquidation) (receiver appointed) (receivers and managers appointed) (in its capacity as responsible entity of the Equititrust Income Fund) v Equititrust Limited (in liquidation) (receivers appointed) (receivers and managers appointed) (in its own capacity) (No 3) [2016] FCA 738; (2016) 341 ALR 301 at [12]-[13]; In the Matter of Binqld Finances Pty Ltd (In Liq) [2015] FCA 718; (2015) 107 ACSR 163 at [9] (Foster J); Archer Capital 4A Pty Ltd as Trustee for the Archer Capital Trust 4A v Sage Group plc (No 3) [2013] FCA 1160; (2013) 306 ALR 414 at [68] (Wigney J); Asahi Holdings (Australia) Pty Ltd v Pacific Equity Partners Pty Ltd [2013] FCA 998 (Jessup J) at [13]; Fair Work Ombudsman v Quest South Perth Pty Ltd [2012] FCA 608 at [36] (McKerracher J); Mercantile Mutual Insurance (NSW Workers Compensation) Ltd v Murray [2004] NSWCA 151 at [40]-[42] (Mason P, Handley JA and Brownie AJA agreeing); Temwell Pty Ltd v DKGR Holdings Pty Ltd [2003] FCA 967 at [8] and [12] (Ryan J).

230    Secondly, Ms Morphet was given leave to appear, appeared at case management hearings but elected not to pursue her claim at final hearing. The SPLs submit that in itself constitutes a waiver in circumstances where the very issue in which she would have an interest is being determined and she is not sufficiently interested to appear. I am not persuaded by that submission. The SPLs bear the onus of establishing that there has been a waiver. They must discharge that onus whether or not a party interested in the outcome chooses to appear.

231    Relatedly the SPLs submitted that, given Ms Morphet’s failure to participate, I would draw an adverse inference against her to the effect that there is nothing she could have said in her favour against the proposition that there was a waiver. The SPLs described this as more than a Browne v Dunne (1893) 6 R 67 and Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 inference. However, for the same reasons I would refuse to draw such an inference.

232    Thirdly, the SPLs submit that if neither of the above submissions is accepted then the extent to which there would be no waiver is limited to the time period up to 21 June 2021 when Ms Morphet ceased to be a director. As to that, Mr Gracanin submits that: all of the relevant legal advice related to the issue of safe harbour; while Mosaic’s financial circumstances may have changed from time to time, the advice given for the protection of the directors was all directed to the single issue; and, in the absence of evidence of a fresh retainer, the retainer is relevantly that which was put in place when Ms Morphet was a director.

233    I accept the SPLs’ submission on this issue. I would infer that the relevant retainer with Hamilton Locke was with, and for the benefit of, the directors of the Mosaic Companies from time to time. Accordingly, once Ms Morphet resigned as a director, she was no longer an intended recipient of any advice given pursuant to it. Indeed, upon Ms Morphet’s resignation as a director she no longer owed any duty to Mosaic nor was she in a position to take any steps pursuant to s 588GA of the Corporations Act. Given that there is no evidence as to whether Ms Morphet joined in the waiver with the other directors, there can be no waiver in the material insofar as it concerns events which took place on or before 21 June 2021, when Ms Morphet resigned as a director of Mosaic.

234    It follows that in my view the directors of Mosaic have waived their exclusive privilege in the safe harbour advice and other related material subject to such a claim which concerns events which took place after 21 June 2021 and was provided under cover of the 12 December Email. That waiver is not limited to the administrators but, the privilege having been lost, extends to the GPLs, the SPLs and beyond.

The role of the minutes

235    As foreshadowed above, for completeness and assuming I am wrong in my conclusion set out in the preceding paragraph, I consider whether there has been a waiver of the safe harbour advice by reason of: first, the recording of that advice in the minutes of Board meetings; and secondly, the provision of the minutes of the Board meetings to Mosaic’s auditors, BDO.

236    In relation to the recording of the safe harbour advice in the Board minutes the SPLs submit that the directors deliberately recorded the safe harbour advice in the minutes and that there is no explanation as to why experienced directors would do this and then say the advice is confidential to them. If the directors truly intended to preserve their legal professional privilege, they could have simply recorded that advice had been received or maintained a separate confidential document. They chose not to do so. The SPLs submit that including communications in relation to the safe harbour advice in the minutes of Board meetings was inconsistent with any attempt to keep them confidential.

237    The Interested Persons did not engage in any detail with the SPLs’ submissions insofar as they concerned the question of waiver by inclusion of the material in the minutes, rather they focused on this question through the lens of confidentiality (see above).

238    In my view by including the safe harbour advice in the minutes, the directors acted inconsistently with the maintenance of the confidentiality in that advice such that they waived their exclusive privilege in it. As the SPLs observed the conduct amounting to the waiver was intentional. The directors did not pursue any alternative course when discussing or recording the safe harbour advice such as recording it in a separate document which would not form part of the minutes and/or referring only to the fact of a discussion without recording its detail. Contrary to a submission put by the Interested Persons, the failure to pursue one of these latter courses amounted to a waiver.

239    In contrast to the position set out above, on the assumption that the minutes were provided in draft and approved at a subsequent Board meeting by all of the directors present, there can be no suggestion that all of the directors at the relevant time did not join in the waiver.

240    The SPLs also submit that the provision of the Board minutes to the auditors, BDO, was inconsistent with any attempt to keep the safe harbour advice recorded in those minutes confidential and amounted to a waiver of the exclusive privilege in that advice.

241    In answer, the Interested Persons relied on Re Northern Energy Corporation [2020] NSWSC 1073; (2020) 147 ACSR 572 in support of their submission that disclosure to an auditor does not amount to a waiver of privilege beyond the auditor. In that case, New Hope Corporation Ltd obtained legal advice from Baker McKenzie concerning liabilities arising under a commercial agreement and subsequently provided that advice to its auditors, Deloitte Touche Tohmatsu. The disclosure occurred in circumstances where Baker McKenzie expressly stated that the advice could be shared with Deloitte Touche “on the understanding” that it remained privileged and was being provided confidentially and solely for the purpose of the audit process. The basis on which the advice was provided was communicated to Deloitte Touche at the time of provision of that advice: Re Northern Energy at [33].

242    Justice Rees concluded that the communications attracted legal professional privilege because the dominant purpose of the retainer with Baker McKenzie was to provide legal advice to New Hope and not to assist Deloitte Touche, and because the advice was only subsequently disclosed to the auditor: at [81]-[82]. Her Honour held that disclosure in those circumstances effected only a limited waiver in favour of Deloitte Touche and did not waive privilege as against New Hope’s subsidiaries or more generally: at [70], [79] and [83].

243    Here the only evidence relied on by the SPLs is an email sent on 18 January 2024 by Mr Anderiesz to Naman Shah and Michael Sussman in which Mr Anderiesz wrote that he was providing “the Board minutes and Board report for November and December” and that he “cannot put this on the portal and also these are password protected”. That limited evidence is insufficient for me to determine whether there was a waiver of the exclusive privilege in any safe harbour advice. First, the material forwarded to BDO at the time is not in evidence before me. Secondly, that being so, it is not apparent if that material included any reference to safe harbour advice. Thirdly, while there was no express reference to maintaining confidentiality and any exclusive privilege that may have existed in the material provided, there is a suggestion that the material was confidential given that it could not be put on the portal and was password protected.

244    In short, I would not conclude, based on the evidence before me, that provision of the Board minutes to BDO was inconsistent with the maintenance of confidentiality in the safe harbour advice or amounted to a waiver of the exclusive privilege in the safe harbour advice insofar as it was recorded in the minutes. Insofar as the latter is concerned, the SPLs have not discharged their onus.

CONCLUSION

245    It follows from the above:

(1)    that I am satisfied the directors had a retainer with Hamilton Locke to provide the safe harbour advice, to the exclusion of the Mosaic Companies;

(2)    however, the directors waived their exclusive privilege in the safe harbour advice to the extent that advice was included in the minutes of Board meetings; and

(3)    the directors waived their exclusive privilege in the safe harbour advice (and related materials) relating to events which occurred after 21 June 2021 by the provision of the Timeline, Memorandum and related documents under cover of the 12 December Email (and earlier drafts thereof).

246    The parties should confer and, within 14 days of publication of these reasons, provide my Associate with proposed orders giving effect to these reasons and in relation to costs of the proceeding to date. Those orders should also address whether, in light of my findings, a further hearing is required to consider whether and to what extent the directors waived their exclusive privilege having regard to the sample categories of documents (see [8] above), and if so, provide for a timetable leading to such a hearing.

247    If the parties cannot agree on the proposed orders or other matters referred to in the preceding paragraph they should, within the same time frame, provide my Associate with their competing orders, together with submissions, not exceeding two pages in length. If the parties cannot agree on the form of proposed orders or is it otherwise necessary to do so, the proceeding will be listed to hear further argument on the form of orders or case management, as required, on 9 November 2026 at 9.30 am.

Associate:

Dated:    22 October 2026

ANNEXURE A

SCHEDULE OF PARTIES