Ruling forces production of Australian Prudential Regulation Authority records
The Federal Court has rejected most settlement privilege claims by Tokio Marine insurers in the Greensill-related insurance litigation, while ordering further regulator-related discovery.
The ruling came on 28 April 2026 in White Oak Commercial Finance Europe (Non-Levered) Limited v Insurance Australia Limited (No 3) [2026] FCA 530. Justice Moshinsky decided privilege and discovery disputes across eleven proceedings being case managed together. The proceedings involve White Oak, Greensill Bank AG, Credit Suisse supply chain finance funds, Insurance Australia Limited, Tokio Marine entities, Marsh, and Greensill Capital (UK) Limited (GCUK).
White Oak challenged without prejudice privilege claims by BCC Trade Credit Pty Ltd, Tokio Marine & Nichido Fire Insurance Co Ltd, and Tokio Marine Management (Australasia) Pty Ltd (the BCC/TM Parties). The disputed documents related to settlement talks over the validity of insurance policies (the Main Dispute) and a separate claim known as the NMC Dispute.
The BCC/TM Parties initially claimed privilege over 412 Non-GCUK Documents and 531 GCUK Documents. Those figures dropped to 176 and 397 by the hearing, with further cuts to 165 Non-GCUK Documents and two fewer GCUK Documents lodged with chambers afterwards.
Their evidence came from Matt Andrews of Kennedys (Australasia) Partnership, David Chadwick of Kennedys (United Kingdom) Partnership, Kennedys solicitors Nicholas Josey and Nicola McGrady, and three additional documents. The affidavits grouped material into categories covering direct communications between Chris Williams, Chairman of International Business, Tokio Marine HCC, and Lex Greensill, the principal of the entire Greensill group; indirect communications revealing the content of those exchanges; and other communications involving BCC/TM personnel and Marsh, GCUK, GCPL, and Greensill Bank AG.
Justice Moshinsky found that evidence general and conclusionary. The affidavits described communications made "in the context" of efforts to resolve the dispute, which he said did not necessarily mean a without prejudice communication. The unexplained drop in claimed documents further weakened reliability. With the BCC/TM Parties on notice of the gaps and yet failing to file more specific affidavits, he declined to inspect the documents and refused privilege for categories 1 to 3.
Category 4 documents, concerning the NMC Dispute, fared better. Mr Chadwick swore he was authorised to communicate with Credit Suisse to resolve the NMC claim, reviewed each document, and identified them as communications he or someone authorised by him sent or received in furtherance of those discussions, which led to the partial resolution of the claim. After inspection, the judge upheld privilege in full or in part, including over the five GCUK documents in category 4, on the basis their privileged character was apparent from their text read in the context of the Chadwick Affidavit. The ruling is subject to a fraud contention White Oak raised in reply, which the judge will address with the parties.
On waiver, Justice Moshinsky held that without prejudice privilege is a joint privilege. White Oak's three waiver arguments, covering 919 documents discovered by other parties without a privilege claim, 316 documents in the trial bundle of English proceedings against Marsh concerning the Greensill Liberty Commodities Limited Receivable Purchase Agreement programme, and 83 documents used in pleadings, evidence, and tender lists, all failed. Conduct by other parties, including disclosure in the English proceedings (to which the BCC/TM Parties were not party), could not waive the BCC/TM Parties' privilege. Delay in raising the issue, given the size of the litigation, also did not amount to waiver.
White Oak ultimately pursued only one further discovery category: BCC/TM communications with the Australian Prudential Regulation Authority between 24 June 2020 and 30 December 2021 concerning the same subject matter as the Notification of Breach by a General Insurer from TMNF to APRA on or around 30 July 2020. Relying on Ms Box's affidavit dated 6 March 2026, particularly at paragraphs 68 to 69, Justice Moshinsky found reasonable grounds to be fairly certain that further relevant documents existed.
He ordered the BCC/TM Parties to file an affidavit covering control of such documents, reasonable searches undertaken (including search terms) and any technology assisted review process used, and to produce any located documents under the existing electronic discovery protocol.
The balance of White Oak's interlocutory application was dismissed. The BCC/TM Parties' separate application to set aside a White Oak notice to produce was dismissed without adjudication on the merits, after White Oak indicated before the hearing it would not call on the notice.
