White Oak Commercial Finance Europe (Non-Levered) Limited v Insurance Australia Limited

(a) First, the BCC/TM Parties contend that White Oak has put in issue its understanding of a legal matter - specifically, its understanding of the legal effect of certain insurance documents that it claims it relied upon when entering the transactions the subject of the proceeding. The BCC/TM Parties principally rely on White Oak's pleadings, namely its Fourth Amended Statement of Claim dated 7 November 2023 (4ASOC). The BCC/TM Parties also relied in oral submissions on certain documents in evidence and contended that inferences could be drawn from those documents as to the nature and subject matter of the legal advice.

(b) Secondly, the BCC/TM Parties contend that White Oak has sought to prove its case by affidavit evidence from members of its Investment Committee, who depose to their decision-making process and the information involved in that process. By way of example, the BCC/TM Parties refer to the affidavit of Mr Hackett, particularly at [26] and [31]-[38]. In support of this aspect of their case as to waiver, the BCC/TM Parties rely, in particular, on Commissioner of Taxation v Rio Tinto Ltd [2006] FCAFC 86; 151 FCR 341 (Rio Tinto).

1. There is no real issue between the parties as to the applicable principles concerning implied waiver. In Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd [2013] HCA 46; 250 CLR 303 (Expense Reduction) the High Court (French CJ, Kiefel, Bell, Gageler and Keane JJ) said (at [30]), in relation to implied waiver of privilege, that the courts "will impute an intention [to waive privilege] where the actions of a party are plainly inconsistent with the maintenance of the confidentiality which the privilege is intended to protect", citing Mann v Carnell [1999] HCA 66; 201 CLR 1 at [29].
2. Both parties in the present case cited Macquarie Bank Ltd v Arup Pty Ltd [2016] FCAFC 117 (Macquarie) and GR Capital Group Pty Ltd v Xinfeng Australia International Investment Pty Ltd [2020] NSWCA 266 (GR Capital). In Macquarie, the Full Court (Middleton, Robertson and Gleeson JJ) stated at [28]-[32]:
   1. The correct approach was succinctly described by Yates J in Ferella & Anor v Official Trustee in Bankruptcy [2010] FCA 766; (2010) 188 FCR 68 at [65] in the following terms:

... However the question is not simply whether the holder of the privilege 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 communication in issue: see [Rio Tinto] at [65]. Indeed, even the fact that the holder of the privilege 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 Tinto] at [67].

1. In determining whether there has been an implied waiver of privilege, the Court's focus will be on whether there has been conduct that is inconsistent with the maintenance of confidentiality in the communication over which privilege is asserted. An assessment of whether there has been an implied waiver will be informed by considerations of forensic unfairness.

2. Whilst not to be treated as a statutory formulation, in DSE (Holdings) Pty Ltd v Intertan Inc [2003] FCA 384; (2003) 127 FCR 499 ('DSE'), Allsop J (as his Honour then was) described (at [58]) an implied waiver as arising when:

... 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 between the act and the maintenance of the confidence, informed partly by the forensic unfairness of allowing the claim to proceed without disclosure of the communication.

1. As the primary judge recognised, a pleading of legal advice may be sufficient to give rise to a waiver of privilege, however a pleading is not necessary for waiver to occur. To this effect, in Hancock v Rinehart [2013] NSWSC 1978, Brereton J noted (at [22]) that the pleading in that case did not deploy or even refer to legal advice or its effect. His Honour noted that it was nonetheless open to conclude that privilege had been waived if other factors of the case warranted such a finding.

1. As explained at [22] of the Full Court's judgment, the Commissioner claimed privilege in relation to some of the documents referred to in the Schedules to the letter. The Full Court held that the Commissioner had impliedly waived privilege in relation to eight privileged documents referred to in the Schedules: at [71]-[73]. This was because the Commissioner had not simply said that the eight privileged scheduled communications were relevant to reaching his state of satisfaction or exercising his discretion; nor had he merely said that he took them into account. Rather, "he identified his bases for satisfaction and exercises of discretion as the matters evidenced in the scheduled documents": at [72].
2. There are several differences between Rio Tinto and the present case. In Rio Tinto, Rio sought to challenge the formation of the Commissioner's state of satisfaction and exercises of discretion on Avon Downs grounds (see Avon Downs Pty Ltd v Federal Commissioner of Taxation [1949] HCA 26; 78 CLR 353). This necessitated a statement by the Commissioner of the bases for his state of satisfaction and exercises of discretion. It was in this context that the Commissioner's statement of particulars (which effectively adopted the contents of the scheduled documents) assumed such significance. There is no comparable issue and no comparable procedure in the present case. For these reasons, I consider Rio Tinto to be distinguishable.
3. In the circumstances of this case, I am not satisfied that an inconsistency constituting an implied waiver arises from the statement in Mr Hackett's affidavit at [37] that, prior to making a decision with respect to each of the requests set out in the tables, he "reviewed and considered the information associated with each of those funding requests". Read as a whole and in context, it seems to me that this is akin to saying that he took the documents into account. As Rio Tinto held at [72], a statement to that effect is insufficient to constitute an implied waiver of privilege.
4. The BCC/TM Parties' submissions did not engage in any detail with the documents referred to in category 9 (the Lockton documents). There does not appear to be any separate submission as to implied waiver in relation to these documents.
5. For these reasons, I am not satisfied that there has been an implied waiver of legal privilege in relation to the documents sought by categories 7, 8 or 9.

(2010) 188 FCR 68

(2003) 127 FCR 499

(2008) 72 NSWLR 236