Background
Jacqueline Henderson and Kyle Sandilands had long presented “The Kyle and Jackie O Show” on a radio station licensed by Commonwealth Broadcasting Corporation Pty Ltd, an ultimate subsidiary of ARN Media Ltd. After an on-air argument on 20 February 2026, Henderson and her company sent CBC a letter raising workplace-safety, Fair Work Act, contractual and defamation complaints. The letter stated that Henderson would no longer present with Sandilands and required an alternative time slot. After an investigation and legal advice, ARN resolved to procure CBC’s termination of the parties’ services contract on the basis of alleged repudiation.
Before the scheduled April 2027 trial, the parties disputed claims of legal professional privilege over approximately 800 documents. Henderson and her company challenged privilege asserted by CBC and ARN over 810 documents, including investigation materials, internal communications, communications involving outside advisers and unsent drafts. CBC and ARN challenged privilege over five documents produced by Henderson and her company. Each side also argued that the other had waived privilege through pleadings, affidavits or other conduct.
The Court’s Holding
Justice Jackman upheld CBC and ARN’s privilege claims. The affidavit evidence, reinforced by the Court’s inspection of the documents, established that the disputed materials were created for the sole or dominant purpose of obtaining, providing or disseminating legal advice. That conclusion extended to the workplace investigation, communications among non-lawyers, work performed by the internal legal team, communications involving public-relations and investor-relations advisers, and unsent drafts. The internal lawyers had acted professionally and with sufficient independence, and the documents remained confidential.
The Court also found no waiver. Evidence that legal advice was obtained, relied upon or relevant to the termination decision did not put the advice’s contents in issue or necessarily expose those contents to scrutiny. References to a “legal strategy,” the directors’ stated reasons for termination and evidence concerning investigative interviews likewise did not waive privilege. The five documents claimed by Henderson and her company were confidential and privileged, and their affidavit evidence did not put the documents’ contents in issue. The Court therefore dismissed all three remaining interlocutory applications and reserved costs for determination on written submissions.
Key Takeaways
- An internal investigation may be privileged when its dominant purpose is to facilitate legal advice, even if non-legal workplace concerns were discussed when the investigation was initially proposed.
- Privilege can cover communications involving in-house lawyers, non-lawyer employees, outside advisers and unsent drafts when the dominant-purpose and confidentiality requirements are satisfied.
- Putting a party’s reasons or state of mind in issue does not itself waive privilege; the party must put the contents of the privileged communications in issue or necessarily lay them open to scrutiny.
Why It Matters
The decision provides practical guidance for organisations conducting sensitive internal investigations through in-house and external counsel. Corporate roles, mixed participants and the use of public-relations or investor-relations advisers do not automatically defeat privilege, but the evidence must establish the documents’ dominant legal purpose and continuing confidentiality.
It also confirms a restrained approach to implied waiver in employment litigation. Even where decision-makers say they obtained or relied on legal advice, privilege ordinarily remains intact unless their case depends on the advice’s substance rather than merely its existence.