Federal Court of Australia

Henderson v Commonwealth Broadcasting Corporation Pty Ltd (Legal Professional Privilege) [2026] FCA 1632

ORDERS

THE COURT ORDERS THAT:

1.    The applicants’ Interlocutory Applications dated 8 and 22 September 2026 be dismissed.

2.    The respondents’ Interlocutory Application dated 22 September 2026 be dismissed.

3.    The respondents file and serve any affidavits and written submissions on costs by 13 November 2026.

4.    The applicants file and serve any affidavits and written submissions on costs by 27 November 2026.

5.    The respondents file and serve any affidavits and written submissions in reply on costs by 4 December 2026.

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

REASONS FOR JUDGMENT

JACKMAN J:

Introduction

1    For many years, Ms Henderson (the first applicant) and Mr Kyle Sandilands presented a radio program called “The Kyle and Jackie O Show”. Ms Henderson provided her services in presenting that program through her company, Henderson Media Pty Ltd, the second applicant (Henderson Media). Since 2013, the program has been presented on the radio station known as “KIIS 1065”, the licence for which is held by the first respondent (CBC). CBC is an ultimate subsidiary of the second respondent (ARN). The most recent contract between Henderson Media, Ms Henderson and CBC was entered into in 2023 (Contract), and the payments promised under the Contract to Henderson Media amount to many millions of dollars.

2    On 20 February 2026, Ms Henderson and Mr Sandilands had an argument during the broadcast of their program. On 26 February 2026, the solicitors for Ms Henderson and Henderson Media sent a letter to CBC making various complaints under the Work Health and Safety Act 2011 (NSW) (WHS Act) and the Fair Work Act 2009 (Cth) (FW Act), as well as for breach of contract and defamation, and conveying that Ms Henderson would not present a program with Mr Sandilands in the future and that she required an alternative “day part” to the breakfast program (the Complaint Letter) (CB3/2085–8). After conducting an investigation and taking legal advice, on 3 March 2026 ARN resolved effectively to procure CBC to terminate the Contract for what it regarded as repudiation of the Contract by Ms Henderson and Henderson Media. The final hearing is due to take place in April 2027 before another judge.

3    These reasons deal with three remaining Interlocutory Applications relating to claims for legal professional privilege involving in total about 800 documents. They are the Interlocutory Applications by the applicants dated 8 September 2026 (relating to documents which are the subject of a notice to produce served on 18 August 2026) and 22 September 2026 (relating to discovery documents), and the Interlocutory Application by the respondents dated 22 September 2026 (relating to the applicants’ discovery documents). The respondents’ Interlocutory Applications dated 18, 25 and 28 September 2026 were resolved by agreement. The parties have commendably narrowed the applicants’ Interlocutory Application dated 8 September 2026 and the respondents’ Interlocutory Application dated 22 September 2026.

4    It is common ground between the parties that, at common law, legal professional privilege applies to confidential communications made for the dominant purpose of the client obtaining legal advice or for use in litigation, consistently with Esso Australia Resources Ltd v Commissioner of Taxation [1999] HCA 67; (1999) 201 CLR 49 (Esso) at [46] and [61] (Gleeson CJ, Gaudron and Gummow JJ). The parties have provided me with copies of the documents over which they respectively claim privilege. I have inspected those documents in the absence of any objection to that course, consistently with the principle that the Court should not be hesitant to exercise the power to inspect disputed documents, as stated in Grant v Downs [1976] HCA 63; (1976) 135 CLR 674 at 689 (Stephen, Mason and Murphy JJ) and in Esso at [52]. I read those documents in preparing for the hearing, and then re-read them after the hearing in light of the arguments which had been advanced.

5    I will deal first with the 810 documents over which privilege is claimed by CBC and ARN. In that regard, I will consider first whether those documents were privileged at the time that they were brought into existence, and then consider whether that privilege has been waived, and if so, to what extent. I will then deal with the five remaining documents over which Ms Henderson’s and Henderson Media’s claims for privilege are disputed.

Were the CBC and ARN documents privileged when they were brought into existence?

6    This question concerns 17 documents produced under a notice to produce served on 18 August 2026, and 793 documents produced on discovery, by CBC and ARN. In short, the question should be answered: Yes.

7    In relation to the notice to produce documents, the claim for privilege is supported by affidavits of Ms Jessup and Mr Child, each dated 22 September 2026. Ms Jessup is a partner of Herbert Smith Freehills Kramer (HSF Kramer), the solicitors for CBC and ARN in the proceedings. Mr Child is the Chief Legal Officer and Company Secretary of the group of companies having ARN as their ultimate holding company (the ARN Group), and he holds a current solicitor’s practising certificate. Ms Jessup made a further affidavit on 9 October 2026 and Mr Child made a further affidavit on 12 October 2026, those affidavits dealing in part with the notice to produce documents. Privilege is claimed over either the whole or particular portions of the documents.

8    Those affidavits refer to the documents in the relevant categories of the notice to produce, and are generally couched in terms of “the purpose” or “the purposes” of the documents as being to seek, provide, obtain, receive or pass on legal advice. Only on rare occasions is the evidence couched in terms of “the dominant purpose”. I regard the use of the language “the purpose(s)” as a legitimate response to judicial admonition that evidence in support of privilege claims should avoid formulaic or ritualistic expressions: see, for example, Grant v Downs at 689. In any event, the use of the definite article in “the purpose(s)” accords with the ordinary grammatical meaning that the object is unique or considered to be unique. The evidence is thus tantamount to proof of “the sole purpose”, perhaps allowing for some minor or immaterial collateral purpose without falling below what would properly be regarded as the “dominant purpose”. My inspection of the documents confirms that interpretation of the affidavit evidence.

9    As to the discovery documents, the claims for privilege are supported by the affidavits of Ms Jessup of 29 September 2026, 30 September 2026 and 9 October 2026, and affidavits of Mr Child of 29 September 2026 and 12 October 2026. The term “the dominant purpose”
is used frequently in the evidence concerning the discovery documents, but the term “the purpose” is also used. As with the evidence in relation to the notice to produce documents, I regard the latter expression as tantamount to evidence of sole or dominant purpose, and that conclusion is confirmed by my inspection of the documents.

10    Mr Child explains in his affidavit of 29 September 2026 the approach which he took to the 631 documents over which CBC and ARN claim privilege which external lawyers did not send or receive (Internal Documents). Mr Child allocated each of the Internal Documents to a “bucket”, and where there was overlap between the “buckets” he sought to place the relevant document in the bucket that best fits the document. The “buckets” into which he divided the Internal Documents are as follows:

(a)    Bucket 1 comprises documents which he addressed in his evidence concerning the notice to produce documents.

(b)    Bucket 2 comprises documents concerning legal advice received by the ARN Group from external lawyers, and consists of (i) the ARN Group’s own records of legal advice received from external lawyers; (ii) documents disseminating legal advice received from external lawyers (whether the advice itself or the substance of it); and (iii) documents disseminating other communications received from external lawyers for the purposes of the ARN Group obtaining legal advice.

(c)    Bucket 3 comprises documents authored or sent by Mr Child or a member of the ARN Group’s legal team concerning legal advice given or to be given by himself or a member of the ARN Group’s legal team. Mr Child has divided this bucket further into the following subcategories: (i) documents regarding actual or potential action by the Australian Communications and Media Authority; (ii) documents regarding potential contempt of court in connection with things said on air on the ARN Group’s radio stations; (iii) documents sent in the period from 20 February 2026 to 3 March 2026 in relation to “The Kyle and Jackie O Show” (other than documents falling within Bucket 5); and (v) documents sent by Mr Child or other members of the ARN Group’s legal team created for the dominant purpose of providing legal advice to the ARN Group (or which otherwise disclosed such advice) that do not otherwise fit within subcategories (i)–(iv).

(d)    Bucket 4 comprises documents sent within the ARN Group for the purpose of seeking Mr Child’s or his team’s legal advice.

(e)    Bucket 5 comprises documents pertaining to the investigation that followed the 20 February 2026 argument between Ms Henderson and Mr Sandilands.

(f)    Bucket 6 comprises a small number of documents sent to and from the ARN Group’s legal team created for the purposes of either obtaining, or retaining, documents or information that may be relevant for the purposes of potential litigation in the future.

(g)    Bucket 7 comprises board papers and related documents prepared for scheduled board meetings of ARN, which occur roughly six times per year, and which contain legal advice.

11    On their face, the affidavits of Ms Jessup and Mr Child establish that the claims of CBC and ARN for legal professional privilege over the notice to produce documents and the discovery documents were valid as at the time that the documents were brought into existence. I turn now to the particular respects in which that position is challenged by the applicants.

12    First, the applicants contend that the communications and documents which formed part of the respondents’ investigation into the 20 February 2026 incident were not created for the dominant purpose of obtaining external legal advice.

13    Mr Child states in his affidavit of 22 September 2026 at [7] that, on 24 February 2026, he (on behalf of the ARN Group) engaged HSF Kramer to provide legal advice to the ARN Group in relation to an argument between Mr Sandilands and Ms Henderson which had occurred on air on 20 February 2026. He then states that:

For the purpose of facilitating that advice being provided, including in particular obtaining information so that that advice could be given, I (along with Mr Stephenson, Ms Reeves and Ms Elstub) arranged for an investigation to be conducted by Ms Reeves and Ms Elstub into the 20 February incident. To that end, I was involved in a number of scheduled meetings being arranged between (on the one hand) ARN staff and contractors and (on the other hand) Ms Reeves and Ms Elstub (and in one case, Mr Stephenson). By 5:00 pm on 24 February 2026, a number of these meetings had been scheduled.

14    As discussed above, I read the term “the purpose” as meaning the sole or dominant purpose. Mr Child was not cross-examined, and I accept his evidence in the absence of any challenge in cross-examination. It is well-established that documents brought into existence for an investigation are privileged if the investigation was for the dominant purpose of obtaining legal advice: see, for example, Australian Securities and Investments Commission v Macleod [2024] FCAFC 174; (2024) 307 FCR 332 at [89] (Burley, Anderson and Meagher JJ).

15    The applicants tendered certain paragraphs of the affidavit of Ms Reeves of 6 August 2026. Ms Reeves was the “Chief People Officer” of the ARN Group. Although Ms Reeves states expressly in her affidavit at [22] that the “investigation was for the purpose of ARN obtaining legal advice”, that evidence was tendered and admitted only for the limited purpose of use in relation to waiver of privilege (T54.4–16, and see T31.17–18), and I therefore disregard it for present purposes.

16    Ms Reeves also refers in her affidavit (at [21]) to an email she sent in the evening of Saturday, 21 February 2026, to Mr Stephenson and Ms Elstub in the following terms (CB4/2789):

Following events on Friday, let me know your thoughts on what I see as an immediate workplace investigation and commitment to meet with key members of the KJ [presumably a reference to Kyle and Jackie] team as part of this process.

The purpose of ideally initial meetings with key individuals would be to:

•    understand what transpired on Friday from the views of members associated with the KJ show, and

•    explore observations and concerns that have been raised regarding behaviour and performance over recent weeks and months (to whom and what was done about the same).

It is important to be clear about the intent and desired outcome of this investigation. We’d have to have the backing of the Board and management – I get that and understand the sensitivities around the same. I care deeply about the health, safety and wellbeing of all our employees and contractors, and we should all be aligned on a clear expectation that everyone should feel safe, respected and comfortable in our workplace – Kyle and Jackie included.

This process would need to be focused on strengthening the workplace culture and environment, ensuring behavioural expectations are clearly understood and upheld, and supporting a respectful, psychologically safe and high performing team.

I don’t miss the essential requirement that the way we work together supports the commercial objectives of the show and delivers the targeted experience for our audience …..

The investigation is not intended to be punitive. It is about understanding what has occurred, hearing all perspectives, and ensuring appropriate and considered outcomes that support our team, the talent themselves, our business and our audience.

The investigation will be conducted in line with our workplace policies and processes. All discussions must be treated confidentially – and primarily led by Kerri [Elstub] and myself. Would you be best Stepho in this process, to stay impartial? That’s something we should discuss and consider.

I do think the sooner we meet with Jackie + Gemma [Ms Henderson’s agent], and Kyle + Bruno [Mr Sandilands’ agent] will be important. I see this as a Monday targeted outcome.

Let me know your thoughts.

17    The applicants draw attention to the fact that HSF Kramer were not engaged until 24 February 2026, which they submit calls into question whether the dominant purpose of the investigation was to seek legal advice. However, it strikes me as unremarkable that an investigation for the purpose of legal advice would be proposed and commenced shortly before engaging the external lawyers who would give that advice.

18    The applicants submit that the email of 21 February 2026 discloses a purpose which undermines the affidavit evidence of Mr Child that the purpose of the investigation was to facilitate legal advice being provided by HSF Kramer. I reject that submission for the following reasons.

19    In the first place, much of the email is consistent with the purpose of seeking legal advice. Understanding what transpired on 20 February 2026 and exploring observations and concerns regarding recent behaviour and performance is entirely consistent with the dominant purpose of seeking legal advice. Caring for the health, safety and wellbeing of all employees and contractors of the ARN Group is also consistent with that dominant purpose, and relates more to questions of tone and style to be adopted in the investigation than to the purpose of the investigation. Disclaiming any punitive intention is also consistent with the avowed purpose of seeking legal advice in relation to the incident.

20    The applicants’ argument is at its strongest in relation to the part of the email which states that the process “would need to be focused on strengthening the workplace culture and environment, ensuring behavioural expectations are clearly understood and upheld, and supporting a respectful, psychologically safe and high performing team”. Similarly, the email states that the investigation is (among other things) about “ensuring appropriate and considered outcomes that support our team, the talent themselves, our business and our audience”. Those statements are indicative of substantial purposes on the part of Ms Reeves which are independent of obtaining legal advice. However, those statements were made by the Chief People Officer, reflecting her own responsibilities and priorities in that role. While Ms Reeves proposed, and was a participant in, the investigation, she does not claim to have made the decision to proceed with the investigation. Indeed, Ms Reeves states expressly in her email that the investigation would need to have “the backing of the Board and management”, and expressly seeks the views of Mr Stephenson (the Chief Executive Officer) and Ms Elstub (the Chief Content Officer) on her initial proposal. Accordingly, Ms Reeves’s personal conception of the purposes of the investigation at the initial stage of proposing the investigation is far from determinative. Mr Child’s unchallenged evidence is that the purpose of the investigation was to facilitate legal advice, and as the Chief Legal Officer and Company Secretary, Mr Child is likely to have been aware of the views of those who were ultimately responsible for the decision to undertake the investigation in terms of the purposes of the investigation. The hierarchy of decision-making may be a significant factor in assessing the question of fact as to the purpose for which documents are brought into existence: see AWB Ltd v Cole (No 5) [2006] FCA 1234; (2006) 155 FCR 30 (AWB v Cole) at [44(2)] (Young J).

21    Accordingly, I do not regard Ms Reeves’s email of 21 February 2026 as undermining or qualifying the unequivocal evidence in the affidavit of Mr Child that the purpose of the investigation was to obtain legal advice. That conclusion is reinforced by my own inspection of the documents in question over which privilege has been claimed.

22    Second, the applicants contend that the communications and documents created by or sent between non-lawyers in the ARN Group were not created or sent for the dominant purpose of legal advice. However, I am satisfied on the evidence of Ms Jessup and Mr Child that these documents (or the relevant parts of them) were brought into existence for the dominant purpose of seeking or disseminating legal advice. That conclusion is again reinforced by my inspection of the documents in question.

23    Third, the applicants contend that the communications and documents created by, or sent to or from, Mr Child (excluding communications and documents sent to or from external lawyers or receiving or disseminating external legal advice) were not created or sent for the dominant purpose of legal advice. The applicants accept that where Mr Child was effectively acting as a post-box for the receipt and dissemination of external legal advice, then those communications are subject to legal professional privilege. Further, the applicants submit (and I accept) that the mere fact that Mr Child is copied to an email does not establish that the dominant purpose of the communication was the provision of legal advice.

24    It is well-established that legal professional privilege is capable of attaching to communications between a salaried legal adviser and his or her employer, provided that the legal adviser is consulted in a professional capacity in relation to a professional matter and the communications are made in confidence and arise from the relationship of lawyer and client: Waterford v Commonwealth [1987] HCA 25; (1987) 163 CLR 54 at 79–82 (Deane J), 95–96 (Dawson J); and see the cases referred to by Young J in AWB v Cole at [44(10)]. The applicants submit that, given that Mr Child is an in-house lawyer with a range of functions, he is more likely to act for purposes unrelated to legal advice or proceedings than an external solicitor, citing Sydney Airports Corporation Ltd v Singapore Airlines Ltd [2005] NSWCA 47 at [24] (Spigelman CJ, with whom Sheller JA and Campbell AJA agreed). I have borne that proposition in mind in assessing the affidavit evidence of Ms Jessup and Mr Child and in my own inspection of the documents. However, I am satisfied that the claims for privilege over documents in this category are validly made.

25    If it is necessary for Mr Child to establish some measure of independence from his employer in order for CBC and ARN to maintain a claim for privilege over his documents (which I doubt), then I am satisfied from my inspection of the documents as a whole that Mr Child did act independently of any pressure from his employer or from the ARN Group in general.

26    Fourth, the applicants contend that documents sent or received by Mr Max Hewett of Patterson Advisory or Mr Steve Loxton of Fortitude Investor Relations, being third parties, were not privileged. The applicants submit that there is reason to doubt that documents or communications sent to or received from third parties were prepared or sent for the dominant purpose of legal advice. The applicants submit that that is all the more so in light of the nature of the services of these two particular advisers, namely public relations and shareholder relations respectively.

27    It is well-established that the concept of legal advice, while broad, does not extend to advice that is purely commercial or of a public relations character: AWB v Cole at [44(7)] and the cases cited there. However, Mr Child’s evidence in relation to communications with Mr Hewett (see his affidavit of 29 September 2026 at [62]) and Mr Loxton (see his affidavit of 12 October 2026 at [11]–[14]), together with my own inspection of the documents, substantiates the claim for privilege. I am satisfied that the documents sent or received by Mr Hewett or Mr Loxton over which privilege has been claimed were for the dominant purpose of seeking or disseminating legal advice.

28    As to the confidentiality of the communications in question, Mr Loxton was under an express written obligation of confidentiality (affidavit of Mr Child of 12 October 2026 at [11]) and Mr Hewett was plainly under an equitable obligation of confidentiality in the circumstances of his engagement. I am satisfied that both of them complied with those confidentiality obligations.

29    Fifth, the applicants contend that draft communications were not privileged because they were not sent. The applicants submit that unsent drafts are not communications between a client and lawyer. So much may be accepted. However, an unsent draft, or a set of notes for private use, will be privileged if brought into existence for the dominant purpose of seeking or providing legal advice. It is a common practice for a client or a lawyer to prepare notes in advance of actually communicating with the other, which may or may not ultimately be given outward expression. Provided that the notes or drafts were prepared for the dominant purpose of legal advice, they are privileged. There is ample authority, helpfully collected by Young J in AWB v Cole at [44(8)–(9)], for the propositions that:

(a)    legal professional privilege protects the disclosure of documents that record legal work carried out by the lawyer for the benefit of the client, such as research memoranda, collations and summaries of documents, chronologies and the like, whether or not they are actually provided to the client; and

(b)    subject to meeting the dominant purpose test, legal professional privilege extends to notes, memoranda or other documents made by officers or employees of the client that relate to information sought by the client’s legal adviser to enable him or her to advise, or brought into existence by the client for the purpose of communication to the lawyer, whether or not they are actually communicated to the lawyer.

30    Accordingly, I accept as valid the respondents’ claim for legal professional privilege over unsent draft documents.

31    It follows that I reject all of the applicants’ challenges to the respondents’ claims for privilege over documents as at the time they were brought into existence.

Has CBC or ARN waived privilege, and if so, to what extent?

32    Waiver may be express or implied, but in either case 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: Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1 at [29] (Gleeson CJ, Gaudron, Gummow and Callinan JJ). The concept of inconsistency is not confined to conduct by the privilege holder that involves an express or implied assertion about the content of a privileged communication, and the inconsistency principle is capable of application to a case where the privilege holder puts in issue a subject-matter by making positive assertions whilst maintaining that communications on the subject-matter remain confidential: Mastercard Asia/Pacific (Australia) Pty Ltd v Australian Competition and Consumer Commission [2026] FCAFC 37; (2026) 315 FCR 256 (Mastercard) at [66] (Perram, Wheelahan and McElwaine JJ).

33    Many of the cases involving waiver otherwise than by an express or implied assertion about the content of a privileged communication concern issues raised by the privilege holder as to particular states of mind by that person or entity. A succession of Full Federal Court decisions has held, as a matter of fundamental principle, that the question in those cases is not whether the privilege-holder has put that person’s state of mind in issue but whether that person has directly or indirectly put the contents of the otherwise privileged communications in issue in the litigation: Commissioner of Taxation v Rio Tinto Limited [2006] FCAFC 86; (2006) 151 FCR 341 (Rio) at [52], [61] and [65] (Kenny, Stone and Edmonds JJ); New South Wales v Betfair Pty Ltd [2009] FCAFC 160; (2009) 180 FCR 543 at [58] (Kenny, Stone and Middleton JJ); Macquarie Bank Limited v Arup Pty Ltd [2016] FCAFC 117 (Arup) at [28]–[30] (Middleton, Robertson and Gleeson JJ); Mastercard at [50]. The applicants accept the correctness of that principle (T28.38–42). Even the fact that the privilege holder makes clear that the advice was relevant or contributed to a particular course of conduct would not be sufficient to waive the privilege unless, possibly, the contents of the legal advice (and not merely the fact of the advice) are specifically put in issue by relying on the contents of the advice to vindicate a claimed state of mind: Rio at [67]; Arup at [28]. In addition, the applicants submit (T25.31–26.9), and I accept, that the relevant test is whether the party entitled to the privilege makes an assertion, express or implied, or brings a case, which is either about the contents of the confidential communication or which necessarily lays open the confidential communication to scrutiny, and by such conduct an inconsistency arises: DSE (Holdings) Pty Ltd v Intertan Inc [2003] FCA 384; (2003) 127 FCR 499 (DSE) at [58] (Allsop J); cited with approval in Rio at [61], and in Arup at [30] (although in Arup the Full Court rightly cautioned that the statement of Allsop J in DSE is not to be treated as a statutory formulation).

34    It is important not to overgeneralise by treating cases involving a state of mind by the privilege holder as homogenous or as necessarily requiring waiver on account of some broad notion of fairness. Each case will depend on its own facts. A claim based on undue influence or rectification by the privilege holder, for example, is likely to involve a much stronger case for the privilege holder having put the contents of legal advice in relation to the transaction in issue than an ordinary case of reliance on a misrepresentation. The recognition by the Full Federal Court of the fundamental principle that the question is not whether the privilege holder has put that person’s state of mind in issue but whether that person has put the contents of the otherwise privileged communications in issue appears to explain the inconsistency in approach and outcome between the Full Federal Court’s decision in Arup at [26]–[37] and the New South Wales Court of Appeal’s decision in Chen v City Convenience Leasing Pty Ltd [2005] NSWCA 297, at [41]–[46] (Gzell J, with whom Bryson JA and Windeyer J agreed). That is, it is not sufficient to establish that the privileged documents might be, or probably were, relevant to the state of mind that the privilege holder has put in issue. Counsel for the applicants accepts that waiver does not arise merely because state of mind is put in issue (T24.22–24).

35    Further, it is important to identify the specific matters in relation to which the waiver is said to arise: Grocon Group Holdings Pty Ltd v Infrastructure NSW (No 2) [2023] NSWSC 1144 at [38] (Ball J).

36    The aspects of the pleadings which are relevant to the question of waiver are as follows. In the Amended Statement of Claim, the applicants refer to the Complaint Letter as:

(a)    stating that Ms Henderson had on previous occasions notified CBC of Mr Sandilands’ bullying: [32];

(b)    stating that as a result of various pleaded matters CBC had not acted in compliance with its obligations to provide a safe place of work: [33];

(c)    identifying CBC’s obligations under the WHS Act to minimise risks to the health and safety of its workers, including in relation to psychosocial hazards in the workplace: [34];

(d)    stating that CBC had not implemented any control measures to minimise the risk to Ms Henderson: [35];

(e)    stating that, as a result of various of those matters, Ms Henderson could not continue to work with Mr Sandilands: [36]; and

(f)    stating that Ms Henderson was willing to continue with the Contract but required CBC to propose an alternative to the Breakfast Show: [37].

37    It is then alleged that the Complaint Letter:

(a)    identified that Ms Henderson had an entitlement to the benefit of a workplace where safety risks (including psychosocial safety risks) were assessed, controlled, and otherwise eliminated or minimised to ensure the health and safety of Ms Henderson: [38];

(b)    specified that Ms Henderson and Henderson Media reserved their right to make a report to SafeWork NSW: [39]; and

(c)    identified that Ms Henderson had the ability to initiate a claim for relief to address bullying in the workplace under the FW Act: [40].

38    It is alleged that Ms Henderson exercised her workplace right concerning an entitlement to the benefit of a workplace law, being the WHS Act, and that Ms Henderson proposed to exercise a workplace right, being the ability to initiate or participate in a process under the WHS Act, for the purpose of s 341(1)(a) and (b) respectively of the FW Act: [41] and [42]. It is alleged that Ms Henderson proposed to exercise a workplace right, being the ability to initiate a process or proceeding under Pt 6-4B of the FW Act, for the purpose of s 341(1)(b) of the FW Act: [43]. It is then alleged that by terminating the Contract for alleged repudiation by Ms Henderson and Henderson Media:

(a)    CBC engaged in adverse action within the meaning of s 342(1)–Item 3(a) of the FW Act: [47];

(b)    CBC terminated the Contract with immediate effect because of (or for reasons that included) the facts pleaded in [38]–[43]: [48]; and

(c)    by reason of those matters, CBC contravened s 340 of the FW Act: [49] and

(d)    by reason of that contravention, Ms Henderson and Henderson Media suffered loss and damage: [50].

39    The respondents’ Defence puts most of those matters in issue. Importantly the respondents deny the reasons alleged in the Amended Statement of claim at [48] and say that CBC did not terminate the Contract because of (or for reasons that included) any of the alleged matters pleaded in [38]–[43] of the Amended Statement of Claim: [48(c)(iii)]. The following particulars of [48] of the Defence are then provided:

The [Contract] was terminated because those who decided that CBC should do so considered that:

a.    Ms Henderson and her company had indicated that they would not in the future do what they had been engaged to do; and

b.    ARN group should not continue to pay the same compensation that it paid under the relevant services agreement if Ms Henderson was to present a radio show other than with Mr Sandilands, or other than in the breakfast daypart.

40    Accordingly, the applicants have alleged that the respondents’ reasons for terminating the Contract included reasons proscribed by s 340 of the FW Act. Under s 361 of the FW Act, the Court presumes that the action was taken for the alleged reasons unless the respondents prove otherwise. Section 361 thus reverses the onus of proof.

41    The applicants tendered various paragraphs of affidavits served by the respondents in the proceedings, which I admitted without objection, subject to a limitation under s 136 of the Evidence Act 1995 (Cth) as evidence only in relation to the issue of waiver of legal professional privilege. That evidence comprises the affidavit of Mr Stephenson (Chief Executive Officer of ARN) of 18 August 2026 at [124] and [151]–[170]; the affidavit of Mr Cubis (a Non-Executive Director of ARN) of 5 August 2026 at [56]–[82], and the affidavit of Ms Cameron (a Non-Executive Director of ARN) of 5 August 2026 at [55]–[69]. The salient aspects of that evidence are as follows.

42    As to Mr Stephenson’s affidavit, Mr Stephenson emailed the board members on 1 March 2026 proposing a board meeting the next day, and that email has been redacted due to a privilege claim: [151]. In the early morning of 3 March 2026, Mr Stephenson sent an email to the board members forwarding some legal advice that he had received, over which privilege is claimed: [152]. On 2 March 2026, he attended a board meeting and outlined the current status, including that Ms O’Neill had stated that Ms Henderson no longer wanted to work with Mr Sandilands; much of the meeting involved the board receiving legal advice and the board resolved to obtain written legal advice: [153]. On the morning of 2 March 2026, Mr Stephenson sent a text to Mr McLennan about an email from another radio station, and the texts have been partially redacted for privilege: [156]–[157]. On the same day, Mr Stephenson sent Mr Child an email to be sent to the board for review, which has been redacted for privilege along with Mr Child’s email to the board.

43    In the afternoon of 3 March 2026, Mr Stephenson received legal advice from HSF Kramer and Arnold Bloch Leibler, which Mr Child forwarded to the board, and over which privilege has been claimed: [161]. Mr Child sent an email to the board attaching a memorandum from Mr Stephenson and a draft letter to Ms Henderson’s lawyers for the board’s consideration: [162]. The memorandum from Mr Stephenson stated (among other things) ([163] and CB5/3469–70):

ARN has received a letter from solicitors acting for Jackie and her services company, Henderson Media. That letter states that she “cannot continue to work with” Kyle and “direct contact with Mr Sandilands is now untenable”. The letter also “requires” the Group to propose an alternate daypart for her to work and states that Ms Henderson “will not be able to return until a suitable alternate day part is found”.

A copy of that letter will be provided to the Board. A copy of the relevant services agreement will also be provided. A copy of a legal advice received by the company, which is subject to client legal privilege, will also be provided to the Board for the purposes of considering these matters.

Recommendation

Given that:

•    Henderson Media is engaged to present (through Jackie) a breakfast program with Kyle;

•    the letter makes it clear that Henderson Media and Jackie will not present with Kyle; and

•    the letter makes it clear that Henderson Media and Jackie will not present a breakfast program,

I recommend that ARN (through resolution of its Board) resolves to cause [CBC] to accept the repudiation of the services agreement by Henderson Media and Jackie and terminate that agreement accordingly.

44    Mr Stephenson says that, although the memorandum (and the draft letter) stated that it was privileged, he wanted that memorandum to be before the board subcommittee so that it could make an informed decision with the benefit of his opinion and the background facts set out in the memorandum; similarly, he wanted the draft letter to Ms Henderson’s solicitors to be sent to the board subcommittee so that it could make an informed decision about what he was recommending be sent to Ms Henderson’s lawyers: [163]. Mr Child’s email has been partially redacted: [164].

45    Mr Stephenson says that his reasons for making that recommendation were “simple”, and says at [165]:

The strength and commercial value of the Show derived specifically from the combination of Mr Sandilands and Ms Henderson together. It was the “Kyle and Jackie O Show”, and that combination was ARN’s key commercial asset. Without Ms Henderson’s willingness to work with Mr Sandilands, there would be no “The Kyle and Jackie O Show”. If Mr Sandilands continued to present a breakfast show without Ms Henderson, that show would not have delivered the same audience the Show had done historically. It would not have been as successful.

46    Mr Stephenson then explains that his view was that, from a commercial perspective, it was not a workable position that Ms Henderson could expect to maintain the same level of remuneration working in a different timeslot and on a new show, and no other talent in Australian radio or in Australian media was being paid anything approaching that level of remuneration: [166]. Mr Stephenson considered that terminating the Contract was the appropriate response given the 26 February 2026 correspondence from Ms Henderson that had been received: [167]. While Mr Stephenson was aware from the Complaint Letter that Ms Henderson had made complaints and assertions about her rights to a safe workplace, none of those complaints or assertions formed any part of his reasoning for recommending that the Contract be terminated or had any effect on his recommendation: [168].

47    Shortly before the scheduled board meeting in the afternoon of 3 March 2026, Mr Stephenson was copied to an email to Ms Rowe and a response from HSF Kramer, over which ARN claims privilege: [169].

48    The subcommittee meeting was held just after 3.30 pm, and was attended by solicitors from HSF Kramer: [170]. Much of the meeting was spent discussing the advice that had been received by the board, and the board subcommittee accepted Mr Stephenson’s recommendation, resolving as follows (at [170]):

After consideration, it was resolved to proceed with the legal strategy as proposed. Management and HSFK were authorised to issue the letters to Jackie’s lawyers and Kyle this afternoon. The Company Secretary was authorised to issue the ASX release immediately following the issue of these letters.

49    As to the affidavit of Mr Cubis, reference is made to the receipt of an email by Mr Stephenson of 27 February 2026 forwarding some legal advice from ARN’s external solicitors over which privilege is claimed: [56]. The following day, Mr Cubis received further emails about that advice over which privilege is claimed: [56]. On 1 March 2026, Mr Stephenson sent Mr Cubis an email, and privilege is claimed over the email chain which also includes some short responses from other board members: [57]. On 1 March 2026, Mr Cubis discussed engaging Arnold Bloch Leibler with Mr Stephenson or Mr McLennan: [59]. On 2 March 2026, Mr Stephenson forwarded to the board an email from Ms Jessup of HSF Kramer over which privilege is claimed: [60].

50    A board meeting was held at 7 am on 2 March 2026: [61]. Going into that meeting, Mr Cubis did not have a firm view on what the board should so, and he saw it as a fact-finding exercise where he was still trying to understand the implications of Ms Henderson’s solicitors saying that Ms Henderson would not work with Mr Sandilands anymore: [61]. The minutes of the meeting have been redacted for privilege claims: [62]. Some legal advice was presented at the meeting and there was discussion about what the board should do, with Mr McLennan saying that they would not go ahead if there was not a unanimous view held by the board, and the board agreed to obtain some written legal advice: [63]. Mr Cubis recalls Mr Connolly (another director) asking Mr Stephenson a question, which Mr Stephenson answered to the effect that it was not commercially feasible to justify paying Ms Henderson anywhere near the same amount her company was currently receiving if she was not doing a breakfast show with Mr Sandilands: [66].

51    Mr Cubis says the following (at [67]):

At this point, I thought that ARN had to terminate Ms Henderson’s contract, because I thought Ms Henderson and Mr Sandilands were past the point of any reconciliation. I thought that it was like a divorce and that they were never going to team up again. I was not prepared to agree that her company could continue to be paid around $10 million a year for her to work on a different show, because the $10 million a year payment was based on the revenue expected to be earned by The Kyle and Jackie O Show breakfast show. An afternoon show was, in my view, going to earn a fraction of the revenue.

52    On the evening of 2 March 2026, Mr Cubis received an email from Mr Child sent on behalf of Mr Stephenson confirming the meeting scheduled for 4.30 pm the next day, which has been redacted for privilege: [70]. At 2.33 pm, the directors were sent two legal advices by Mr Child, one from HSF Kramer and the other from Arnold Bloch Leibler, over which privilege is claimed: [74]. At 3.01 pm, Mr Cubis received an email from Mr Child containing a draft letter to Ms Henderson’s solicitors and a memorandum to the board from Mr Stephenson (as quoted above in relation to Mr Stephenson’s affidavit): [76]. Mr Cubis was also copied to emails from Mr McLennan and Ms Rowe, together with responses, over which privilege is claimed: [77]–[78].

53    Mr Cubis refers to the resolution at the board meeting to proceed with “the legal strategy as proposed”, and says that he agreed with the resolution: [81]–[82]. Mr Cubis in effect refers to the resolution to proceed with the legal strategy as being the same as the board adopting Mr Stephenson’s recommendation: [82]. Mr Cubis says that he joined in the resolution for the same reasons explained at [67] of his affidavit in relation to the views he had reached at the 2 March 2026 board meeting, and says the following (at [82]):

Ms Henderson was not going to present a breakfast show with Mr Sandilands anymore. I could not justify her being on another show for the same money. So it just made commercial sense to me to terminate Ms Henderson’s agreement. I thought that the relationship was past the point of no return and that ARN had no other realistic option.

54    As to the affidavit of Ms Cameron, she refers to receiving an email from Mr Stephenson on Sunday, 1 March 2026, which has been redacted for privilege, referring to a board meeting scheduled to occur the following day: [55]. Ms Cameron says that she is not a lawyer, but going into the meeting on 2 March 2026 the position in relation to Ms Henderson seemed to her to be “pretty obvious”, saying “When I was told by Mr Stephenson that Jackie had said that she cannot work with Kyle, and cannot do the breakfast daypart, my view was that was the end of the contract”: [58]. Ms Cameron recalls that the board resolved at the meeting at 7 am on 2 March 2026 to obtain “solid written legal advice” from HSF Kramer and a second opinion from Arnold Bloch Leibler: [60].

55    Between the 2 March 2026 board meeting and the board meeting held the next day (the latter of which she did not attend), Ms Cameron spoke on the telephone with Mr McLennan, and Ms Cameron says the following (at [63]):

During that phone call, I told Mr McLennan words to the effect that he could convey to the Board I was content to defer to their decision about whether or not to terminate Jackie’s contract, and that I supported the decision to terminate Jackie’s contract and to issue a breach notice to Kyle, provided that the other Board members were satisfied with the legal advice received.

56    Ms Cameron explains that she took that position as it was her view that Ms Henderson had effectively shown that she would not comply with her contract as she said she could not work with Kyle any more, and Ms Cameron thought that terminating the Contract was the only thing ARN could do, and if there were an opportunity to terminate Mr Sandilands’ contract then that was also the right thing to do: [64]. Ms Cameron did not think it was feasible to try to get Ms Henderson and Mr Sandilands to “make up” again and considered that there was no other realistic option but to terminate the Contract: [65]–[66]. Ms Cameron did not consider that Ms Henderson could be put on a different daypart under the Contract as she had requested; in her view, a different daypart does not command the same dollar value as it does not bring in the same revenue, Mr Sandilands was the major talent on the show, and there was no other daypart immediately available: [67]. Ms Cameron says that in forming her views, her mind never turned, as a reason for coming to her views, to the fact that Ms Henderson made complaints and other assertions about bullying and other workplace health and safety issues, and that that was just not relevant: [69].

57    In relation to the investigation conducted by the ARN Group, the applicants tendered Ms Reeves’s affidavit of 6 August 2026 at [13]–[22], and her email of 21 February 2026 which I have extracted above (CB4/2789). I have referred to that evidence above. The applicants also tendered an exchange of text messages on 3 March 2026 between Ms Rowe (a Non-Executive Director of ARN) and Mr McLennan (a Non-Executive Director and the Chairman of ARN’s board) as follows (CB4/2587):

Mr McLennan:         Hi, I’m on a flight and can’t talk. Can you text? Hamish

Ms Rowe:    I’m just talking to MS [Mr Stephenson]. I wanted to update you on my call with Ros [Reeves] yesterday to follow up on questions Brent [Cubis] and I had regarding interviews with the team and sensor [sic: censor]

Mr McLennan:    Ok thanks. I’ll have to call you in about 4 hrs. Does anything change our discussions?

Ms Rowe’s response is then redacted on the ground of legal professional privilege.

58    In addition, the respondents tendered the following evidence (under a s 136 limitation confining its use to the issue of waiver) to the effect that the exercise or proposed exercise of workplace rights by Ms Henderson was not part of each deponent’s reasons for termination:

(a)    Mr McLennan’s affidavit of 6 August 2026 at [135];

(b)    Mr Cubis’s affidavit of 5 August 2026 at [84];

(c)    Mr Connolly’s affidavit of 18 August 2026 at [73];

(d)    Ms Rowe’s affidavit of 6 August 2026 at [65];

(e)    Ms Cameron’s affidavit of 5 August 2026 at [69]; and

(f)    Mr Stephenson’s affidavit of 18 August 2026 at [168].

59    The respondents also tendered the following affidavit evidence by each of the four directors who were present at the board meeting on 3 March 2026 (subject to the same s 136 limitation confining its use to the question of waiver of privilege) that the board resolution of 3 March 2026 (in terms expressed as a resolution to proceed “with the legal strategy as proposed”) was a resolution to proceed with the recommendation proposed by Mr Stephenson in his memorandum of that day:

(a)    Mr McLennan’s affidavit of 6 August 2026 at [123]–[127];

(b)    Mr Cubis’s affidavit of 5 August 2026 at [81]–[82];

(c)    Mr Connolly’s affidavit of 18 August 2026 at [71]–[72]; and

(d)    Ms Rowe’s affidavit of 6 August 2026 at [63].

60    The applicants contend that there are four specific matters over which the respondents have waived privilege in relation to documents brought into existence between 20 February 2026 and 3 March 2026 inclusive (T53.20–35, as expanded by T41.30–35 and 64.46–47), namely:

(1)    whether the respondents’ reasons for terminating the Contract were that Ms Henderson said she would no longer work with Mr Sandilands or work on a breakfast program, as that would make the Contract no longer commercially viable;

(2)    whether any exercise or proposed exercise of workplace rights by Ms Henderson played any part in those reasons;

(3)    the identification of the “legal strategy” referred to in the ARN board’s resolution of 3 March 2026 (including whether it went beyond the text of Mr Stephenson’s memorandum of 3 March 2026) and the identification of the legal advice to which Ms Cameron refers in her affidavit at [63]; and

(4)    interview notes and transcripts of interviews with staff in the ARN Group’s investigation of the 20 February 2026 incident, and whether or how those interviews affected the decision or discussion as to the termination of the Contract.

61    The applicants contend that inconsistency arises so as to amount to waiver of privilege for three reasons (T41.15–41). First, the applicants submit that the evidence put forward by the respondents is that the relevant decision-makers acted on legal advice. Second, the applicants submit that the decision-makers deployed a legal strategy. Third, the applicants submit that Ms Cameron’s deference to the board’s decision was subject to satisfactory legal advice being received by the other board members. The applicants later added a fourth proposition, namely that in relation to the investigation, the claim of privilege is said to be inconsistent with Ms Rowe’s text messages with Mr McLennan on 3 March 2026 (CB4/2587).

62    As to the applicants’ first submission, the applicants accept that waiver does not arise merely because legal advice was obtained (T24.28–29). Nor, in my view, could it be argued that waiver arises merely because legal advice was not only obtained but was also relied upon. In itself, obtaining and relying on legal advice is an unremarkable feature of any case involving a commercial dispute involving many millions of dollars. Indeed, it is difficult to see how the directors and officers of the respondents could have discharged their duties of care, skill and diligence without obtaining legal advice in relation to the termination of a contract of the importance to CBC and ARN of the Contract, and relying upon that advice. The mere fact that the advice may have contributed, or did contribute, to the decision ultimately taken to terminate the Contract does not put the contents of the legal advice in issue, nor does it necessarily lay open the confidential legal advice to scrutiny.

63    As to the applicants’ second submission, the evidence of Mr McLennan, Mr Cubis, Mr Connolly and Ms Rowe (being the four directors who were present at the meeting on 3 March 2026) is to the effect that the “legal strategy” referred to in the board’s resolution of 3 March 2026 was the same as Mr Stephenson’s recommendation in his memorandum of 3 March 2026, namely to terminate the Contract. The applicants submit that what Mr Stephenson was recommending was not a legal strategy (T33.29–34.29), but in my view it plainly was. Although Mr Stephenson’s memorandum referred to legal advice which would be provided to the board, that advice was sent separately from the memorandum. I accept the respondents’ submission that the legal strategy was the same as the recommendation made in Mr Stephenson’s 3 March 2026 memorandum, and requires no more than the 3 March 2026 memorandum for it to be identified. That conclusion is reinforced by my inspection of the disputed documents, including the legal advice of HSF Kramer and Arnold Bloch Leibler which was provided to the board of ARN on 3 March 2026 and the unredacted minutes of the meeting. It is not necessary to have access to that legal advice in order to understand fully what the legal strategy adopted by the board in its 3 March 2026 resolution comprised.

64    As to the applicants’ third submission, Ms Cameron’s evidence at [63] of her affidavit is said by the applicants to be an express or implied assertion about the content of privileged communications (T23.25–24.14). I reject that submission. Ms Cameron did not attend the 3 March 2026 board meeting, which explains why she adopted the position to which she refers in her affidavit at [63]. The applicants themselves submit, and I accept, that the effect of Ms Cameron’s evidence is that she was willing to defer to the position adopted by the other directors if they were all satisfied with the legal advice (T38.41–47, 39.25–35). That evidence does not make any assertion, whether express or implied, about the content of privileged communications. There is no disclosure (whether express or implied) of the content of the legal advice in that evidence, and there is nothing in that evidence that is inconsistent with the preservation of confidentiality in the legal advice.

65    As to the applicants’ fourth submission, the applicants submit that the exchange of text messages between Mr McLennan and Ms Rowe lays open the issue about what the interviews with the staff revealed, because Ms Rowe’s text shows that Ms Rowe and Mr Cubis wanted to know what the outcome of the interviews was in order to inform their decision, and thus the text is said to have required disclosure as to whether and how the interviews affected the decision or discussion (T64.40–47). That submission amounts to no more than saying that some unspecified aspect or aspects of the privileged communications may have been relevant to the state of mind of Ms Rowe and Mr Cubis. The evidence falls well short of the test advanced by the applicants themselves as to whether the case brought by the respondents necessarily lays open the confidential communication to scrutiny.

66    Accordingly, I reject the applicants’ contention that there has been a waiver of privilege by the respondents.

67    There was some debate before me as to whether, assuming that waiver is established in relation to a specific subject-matter, the notion of inconsistency means that privilege over documents which are entirely consistent with and supportive of the case brought by the privilege holder is waived, or whether all that is waived are documents which adversely affect the privilege holder’s case or otherwise support the case of the party challenging the claim for privilege. The applicants submit that waiver occurs irrespective of the substance of the communication and thus includes documents which are entirely supportive of the respondents’ case (T48.30–50.8, 82.10–23), whereas the respondents submit that the inconsistency principle confines waiver to any documents which support the applicants’ case or adversely affect the respondents’ case and that there would not be waiver over documents which are entirely supportive or corroborative of the respondents’ case (T77.44–78.6). It is not necessary to resolve that issue. However, against the possibility that the dispute over privilege may be taken on appeal, I should record my finding that, having inspected all of the respondents’ privileged documents in question, there are none which could be said to be adverse to the respondents’ case or which are other than supportive of (or neutral in relation to) the respondents’ case. Similarly, none of the four applicants’ documents over which the respondents contend that the applicants have waived privilege (considered below) could be said to be adverse to the applicants’ case or are other than supportive of (or neutral in relation to) the applicants’ case.

68    There was considerable debate in the written and oral submissions as to the significance of the reversal of onus under s 361 of the FW Act to the question of waiver. In particular, the respondents submit that they are not the parties which have put in question their state of mind; rather, the respondents contend that it is the applicants who have done so as a matter of substance, citing DSE at [46]. The respondents submit that the affidavit evidence which they have served is merely a product of the reversal of onus under s 361 in light of the applicants having put in issue the respondents’ reasons for terminating the Contract. However, as indicated above, the question is not whether the privilege holder has put that person’s state of mind in issue, but whether that person has put the contents of the otherwise privileged communications in issue. Accordingly, I do not regard the onus of proof as having a material bearing on the question of waiver.

The applicants’ claims for privilege

69    The dispute in relation to the applicants’ privilege claims over their discovered documents now concerns only five documents.

70    The first is a letter from Ms Tumpey (the solicitor for the applicants) to Dr Justine Corry sent on 6 May 2026 (Document ID HMP.001.0000021). That is the only document in relation to which there is a challenge as to whether it was privileged at the time it was created. The respondents accept that the communication had the requisite dominant purpose, and the only question is whether it is a confidential document. I have inspected the document and it is plainly confidential, and has been since it was brought into existence (consistently with Ms Tumpey placing the document in her Category A as a confidential communication in her affidavit of 28 September 2026 at [14] and [21]).

71    There are four documents in relation to which the respondents contend that privilege has been waived. The first two comprise a series of text messages exchanged between Ms Henderson and Ms O’Neill (Ms Henderson’s agent or manager) on 25 February 2026 (Document ID HMP.002.0118729 and HMP.004.0124107). Privilege is said to have been waived by Ms Henderson’s evidence given in her affidavit of 10 June 2026 at [462] and [463]. Paragraph 462 includes the statement that on 26 February 2026, Ms Henderson instructed her solicitors to issue the Complaint Letter. Whether or not that involves a waiver of Ms Henderson’s instructions, the text messages occurred on the previous day and were between Ms Henderson and Ms O’Neill, not between Ms Henderson and her solicitors. Having inspected the documents, they do not convey instructions to send the Complaint Letter. Paragraph 463 contains statements as to the purpose of the Complaint Letter held by Ms Henderson at the time of sending it, as follows:

The purpose of the letter was to make clear that Mr Sandilands’ conduct was something that had been an issue in the past, which I wanted the Respondents to be aware of. The position that I held in the radio industry was something I had worked my whole life for, and I wanted to continue working without being subject to Mr Sandilands’ behaviour. I felt I should be able to protect myself and not be punished because the Respondents were not prepared to deal with Mr Sandilands.

I do not regard that evidence as putting into question the contents of Ms Henderson’s confidential communications with Ms O’Neill, nor do I regard it as necessarily laying open what she said to Ms O’Neill, if anything, in relation to her subjective purpose for sending the Complaint Letter. In any event, having read the documents in question, they do not concern Ms Henderson’s purpose in sending the Complaint Letter.

72    Finally, the respondents contend that privilege has been waived over text messages between Ms Henderson and Ms O’Neill on 24 March 2026 (HMP.004.0124189) and 30 March 2026 (HMP.002.0118809). The respondents tendered [274]–[284] of Ms O’Neill’s affidavit of 8 June 2026 (the evidence being limited to the question of waiver) concerning negotiations about a potential alternative role for Ms Henderson with the radio station, those negotiations occurring between 19 and 30 March 2026 inclusive. Ms O’Neill says that the reasons she rejected Mr Stephenson’s proposal on behalf of Ms Henderson are set out in an email of 30 March 2026 (CB2/1568–9), which begins by referring to discussions between Ms O’Neill and Ms Henderson about Mr Stephenson’s proposal. The respondents submit that the text messages of 24 and 30 March 2026 were sent at about that time, and submit that privilege has been waived to the extent that the communications are about the proposals that were being discussed at the time. I reject the respondents’ contention. The applicants have not made any assertion about the contents of the confidential communications or otherwise put their contents in issue, nor have they run a case that necessarily lays open the contents of those text messages.

Conclusion

73    Both sets of parties have failed in their respective challenges to claims for privilege. The three Interlocutory Applications should therefore be dismissed.

74    The parties expressed a preference to deal with the question of costs after delivery of these reasons. I will therefore set a timetable for the filing and service of affidavits and written submissions on costs. In the event that a lump sum costs order is sought, as well as any order that the lump sum be payable immediately rather than at the conclusion of the proceedings, the affidavits and written submissions should deal also with the quantification of the lump sum order so as to avoid the need to refer the matter to a Registrar. I anticipate dealing with the question of costs on the papers.

Associate:

Dated:    30 October 2026

SCHEDULE OF PARTIES