In White Oak Commercial Finance Europe (Non-Levered) Limited v Insurance Australia Limited (No 3) [2026] FCA 530 the Federal Court considered the evidence required to establish a claim for without prejudice privilege, and the circumstances in which such privilege may be waived.

White Oak filed an interlocutory application challenging claims of without prejudice privilege asserted by the respondents (BCC/TM parties) and sought further discovery of documents. The BCC/TM parties relied on seven affidavits to substantiate their privilege claims over documents grouped into four categories.

White Oak contended there was insufficient evidence to substantiate the BCC/TM parties’ claims for without prejudice privilege. Alternatively, if privilege had been established, it had been waived in respect of a significant portion of documents by, among other things, the use of documents in evidence in related proceedings in England.

The Court accepted that without prejudice privilege attached to one category of documents only. In making this finding, the Court had regard to the nature and quality of the affidavit evidence relied on by the BCC/TM parties. It held:

• certain affidavit evidence was insufficient because it was general and conclusionary, was not tied to specific documents, and was not from persons personally involved in negotiations;
• a communication said to have been made merely “in the context” of ongoing efforts to resolve a dispute is not necessarily a communication made on a ‘without prejudice’ basis, attracting privilege; and
• the reliability of aspects of the BCC/TM parties’ evidence was severely undermined by their failure to explain why the scope of their original claims of privilege had been substantially reduced.

On the issue of waiver, the Court reaffirmed that without prejudice privilege is a joint privilege that cannot be waived unilaterally. Applying this principle, it concluded that disclosure of documents in the related proceedings in England did not amount to a waiver, as the disclosure was not made by the BCC/TM parties.

The decision reinforces that claims for without prejudice privilege must be supported by specific evidence and not asserted in overly broad terms.

The decision can be found here.