Federal Court: July 2026

The case of White Oak Commercial Finance Europe (Non-Levered) Ltd v Insurance Australia Ltd (Without Prejudice Privilege) [2026] FCA 769 (‘WPP Proceedings’) concerns an amended interlocutory application brought on 20 April 2026 by Insurance Australia Ltd (‘First Respondent’) against White Oak Commercial Finance Europe (Non-Levered) Ltd (‘Applicant’), seeking the production of certain documents held by the Applicant (at [1]).

The claim

The WPP Proceedings were brought within proceeding NSD 1039 of 2021 (‘White Oak Proceedings’) (at [1]). In the White Oak Proceedings, the Applicant sought, inter alia, judgment against the First Respondent for alleged amounts payable under an insurance policy purportedly issued by BCC Trade Credit Pty Ltd (‘BCC’) as authorised representative of the First Respondent to Greensill Bank AG (‘GBAG’) and Greensill Capital Pty Ltd (‘GCPL’) (at [8]). The claimed losses concerned debts owed to Greensill Capital (UK) Ltd (‘GCUK’) under accounts receivable finance facilities as the Applicant invested in finance programs set up by GCUK (at [8]). The Applicant alleged it was an ‘insured’ under the policy and a ‘loss payee’ pursuant to a ‘Loss Payee Endorsement’. Consequently, the Applicant asserted it was entitled to be indemnified for losses following its purchase of 29 accounts receivable from GCUK between 10 December 2020 and 25 February 2021 (at [8]).

The WPP Proceedings

In the WPP Proceedings, the First Respondent sought production from the Applicant of 15 documents for inspection. Those 15 documents consisted of:

1. 14 WhatsApp messages sent between 19 August 2020 and 18 January 2024 (at [3]); and
2. a draft Term Sheet dated 12 August 2021 marked ‘Private and Confidential’ (at [5]).

In evidence, the Applicant’s solicitor, Ms Box, gave evidence by affidavit that she had reviewed the documents and concluded that:

1. none of the documents were relevant to the issues in dispute in the proceedings; and
2. each of the documents was properly the subject of a claim for without prejudice privilege (at [25]).

Thawley J separated the 15 documents into two groups and dealt with the First Respondent’s application for disclosure for each group separately.

The first group – two WhatsApp messages in 2020

The first group of documents consisted of WhatsApp messages sent between Mr Hakkak and Mr Gupta occurring on 19 August 2020 and 24 August 2020 (at [27]). In determining the documents were not relevant, Ms Box relied on representations from Mr Hakkak that:

1. ‘[Mr Hakkak] was “negotiating [with Mr Gupta] a potential resolution of a dispute” between [Liberty Commodities Limited] and a White Oak company which is not the Applicant in this proceeding’;
2. ‘that the dispute did not relate to “any investment made by White Oak through GCUK in the [Liberty Commodities Limited] Multi-Obligor Program”’; and
3. ‘that the messages “were sent by [Mr Hakkak] for the purpose of attempting to agree a resolution of the dispute with Mr Gupta without resorting to legal proceedings, which he thought could be necessary if the dispute was not resolved consensually”’ (at [27]).

Contrary to Ms Box’s conclusions, however, Thawley J found the documents were likely to be directly relevant:

‘… to White Oak’s knowledge of the financing needs of [Liberty Commodities Limited], reliance, issues of reasonable inquiries in connection with the claims made under Part 7.6 of the Corporations Act, and issues of proportionate liability or contributory negligence’ (at [32]).

Having determined the documents were relevant, the next question was whether they were subject to without prejudice privilege. As noted by Thawley J, without prejudice privilege prevents evidence of settlement negotiations, in relation to existing or contemplated proceedings, being admitted into evidence (at [32], citing Dowling v Ultraceuticals Pty Ltd [2016] NSWSC 386 at [25]). Documents subject to the privilege need not be produced under subpoena or pursuant to discovery and, for interlocutory Federal Court proceedings, the existence of the privilege is determined in accordance with common law principles (at [33], citing Commonwealth Director of Public Prosecutions v Citigroup Global Markets Australia Pty Ltd (No 3 – privilege claims) [2021] FCA 1208 at [114]).

In summary those principles are:

1. the privilege is intended to encourage out-of-court settlement of disputes;
2. in part, the privilege prevents the admission into evidence of concessions made for the purpose of settling matters in dispute; and
3. the public policy behind the privilege is to prevent anything said in a without prejudice negotiation from being relied upon as an admission (at [34]).

Having examined the principles, Thawley J concluded the first group of documents did not attract without prejudice privilege because:

1. the messages were broadly directed towards a general approach the parties might take to their dispute;
2. they did not constitute negotiations or directly discuss any resolution of a dispute;
3. they did not contain any reference to the possibility of litigation or any admissions; and
4. there was no observable element of compromise or any indication of an intention to make an offer of compromise (at [36], citing Thomson v Austen (1823) 1 LJ KB 99).

Group two documents – twelve WhatsApp messages and the draft term sheet

The second group of documents consisted of 12 WhatsApp messages with Mr Gupta occurring after the dispute between the Applicant and Liberty Commodities Limited arose in March 2021 and the draft term sheet (at [38]). Ms Box gave evidence that:

1. the twelve messages were sent for the purpose of seeking to negotiate a resolution of the dispute that is the subject of the White Oak Proceedings; and
2. the draft Term Sheet was created in connection with those negotiations (at [38]).

After receiving submissions from the First Respondent indicating ways in which the documents may be relevant and noting that the First Respondent did not know the contents of the documents (at [39]), Thawley J held the documents were not directly relevant to any issue in the proceedings (at [45]).

Given that Thawley J held the documents were not directly relevant, it was not necessary to consider whether they could be the subject of without prejudice privilege (at [46]).

Consequently, Thawley J ordered:

1. the production of the first group of documents for inspection; and
2. the First Respondent’s amended interlocutory application dated 20 April 2026 otherwise be dismissed (at [47]).

Michael Morgan is a barrister at 13th Floor St James Hall.