Background
The Court urgently determined six overlapping interlocutory applications arising from 11 related Greensill proceedings being managed together ahead of a trial scheduled to begin on 14 September 2026. The disputes concerned claims of legal professional privilege, alleged waiver, document production and the adequacy of discovery searches.
The contested material included White Oak documents, redacted Deloitte reports, communications involving Credit Suisse and Greensill Capital (UK), and documents withheld by the BCC/TM parties. The Court had inspected disputed documents and had referred several discovery and privilege questions to referee Edward Cowpe under s 54A of the Federal Court of Australia Act 1976 (Cth).
The Court’s Holding
Justice Lee applied the dominant-purpose test and held that privilege had not been established for certain documents, including due-diligence material serving commercial, risk or compliance functions rather than the dominant purpose of obtaining or giving legal advice. White Oak was ordered to produce specified documents, and the BCC/TM parties were required to produce documents that the referee found were not protected. Other BCC/TM documents remained protected, while the privilege claim for one email chain was sent back to the referee because an attachment had inadvertently been omitted from the material reviewed.
The Court dismissed Marsh’s application for unredacted Deloitte reports and IAL’s application for unredacted Credit Suisse–Greensill communications. Disclosure of privileged Deloitte material to financial regulators, including FINMA and the UK Financial Conduct Authority, did not waive privilege because the disclosures occurred within limited statutory confidentiality regimes and were not objectively inconsistent with maintaining confidentiality. The Court also adopted a referee’s discovery report, ordered Credit Suisse and the UBS cross-respondents to run specified searches and provide responsive discovery, and referred remaining BCC/TM privilege disputes to the referee.
Key Takeaways
- In-house legal involvement does not itself establish privilege; the claimant must prove that obtaining or giving legal advice was the document’s dominant purpose.
- Limited disclosure to a regulator does not necessarily waive privilege, particularly where statutory confidentiality restrictions preserve the confidential character of the material.
- In complex commercial litigation, the Federal Court may use a referee to examine privilege claims, supervise discovery issues and report promptly to the Court.
Why It Matters
The decision illustrates the fact-sensitive distinction between legal advice and documents created principally for commercial, due-diligence, risk or compliance purposes. It also confirms that regulatory disclosure is assessed through the objective inconsistency test: disclosure alone does not automatically destroy privilege.
More broadly, the judgment signals concern about disproportionate discovery disputes in major commercial cases. Justice Lee suggested that early appointment of an experienced referee acting in substance as a discovery master may provide a more disciplined and cost-effective way to manage large-scale discovery.