What happened: The Federal Court ruled that a Japanese law firm's report is privileged under Australian law, even though Japan has no legal privilege doctrine.
Who's involved: White Oak (applicant), Insurance Australia Limited, BCC Trade Credit, and Tokio Marine entities (respondents) in the ongoing Greensill litigation.
What's at stake: Access to a key investigative report in the remaining A$170 million White Oak proceedings against IAL.
Why it matters: Insurers with cross-border operations now have Federal Court authority that Australian privilege can shield foreign legal advice regardless of the source jurisdiction's own rules.
Where it stands: The interlocutory application was dismissed with costs; the substantive White Oak proceedings continue.
Japan has no doctrine of legal professional privilege. None. A lawyer's advice there is protected by general confidentiality duties and procedural rules that keep certain documents out of court, but there is no standalone privilege of the kind common law countries recognise.
That absence was the centrepiece of White Oak's argument in the Federal Court: if Japan does not recognise privilege, then a report prepared by a Japanese law firm should not be shielded from production in Australian discovery proceedings.
The court disagreed.
The dispute sits inside the sprawling Greensill trade credit litigation in the Federal Court of Australia. IAG settled the Credit Suisse proceedings in September 2026, removing claims with a face value of about A$2.8 billion. An earlier settlement with Greensill Bank's administrators resolved claims of approximately A$4 billion. What remains is the White Oak proceeding, with claims carrying an aggregate face value of approximately A$170 million plus interest.
At the heart of this privilege fight is a single document: a report dated December 11, 2020, prepared by Japanese law firm Mori Hamada & Matsumoto. Tokio Marine Holdings - the ultimate parent of BCC Trade Credit - commissioned the report after discovering that BCC's former head of trade credit had written insurance policies outside his approved authority limits. Written in Japanese and marked "Privileged & Confidential Attorney Work Product," it was prepared by seven attorneys - six qualified in Japan and one in California.
White Oak wanted to see it. BCC and the Tokio Marine entities said it was privileged. The question for the court was deceptively simple: can Australian privilege protect advice from a country that does not have privilege?
The court heard expert evidence on Japanese law from both sides. Both experts agreed on the key point: Japan has no doctrine of legal professional privilege. But both also confirmed that Japanese law protects the confidentiality of lawyer-client communications through other mechanisms. Under Japanese civil procedure, there is no general discovery process. Article 220(iv) of Japan's Code of Civil Procedure excludes from compulsory production both documents containing information learned during a lawyer-client engagement and documents prepared exclusively for the holder's own use.
The practical result, the court found, is that production of the report could "highly likely" be resisted in Japanese civil proceedings - just not through the mechanism of privilege.
The court approached the question by asking what "privilege" in Rule 20.02 of the Federal Court Rules actually means. His answer: it refers to Australian common law privilege. Because the rule is an Australian procedural safeguard applied in Australian proceedings, no choice-of-law question arose. Even if it did, the court held, a long line of authority going back to 1859 establishes that privilege questions are governed by the law of the forum - the court hearing the case.
The critical finding for cross-border practice: Australian law is "capable of recognising privilege notwithstanding the absence in Japan of a doctrine of legal professional privilege." What mattered was that the communication was confidential, that it would be protected from forced disclosure in its home jurisdiction, and that the policy behind privilege - encouraging frank legal advice - was served by shielding it.
Investigation or legal advice? Both, said the court
White Oak's fallback was that even if Australian law applied, the report was not privileged because Mori Hamada & Matsumoto had been hired to investigate, not to advise. Internal documents repeatedly called the work an "investigation" or "root cause investigation."
The court was not persuaded. The "investigation" label described the means, not the end goal. The lawyers had been asked three questions, all of them legal: whether the incident revealed non-compliance with Japanese law, what Tokio Marine Holdings should do to prevent recurrence under Japanese regulatory standards, and whether it was meeting its ongoing legal obligations. The factual digging was a necessary step toward answering those questions, not a separate purpose competing with the advice.
The court found it "would be inappropriate and artificial to attempt to sever the factual investigations carried out by MHM from the legal advice they provided."
White Oak's final argument was waiver. After receiving the report on December 11, 2020, Tokio Marine prepared a confidential update based on it and shared that update - not the report itself - with Japan's Financial Services Agency ten days later. White Oak argued this was inconsistent with maintaining privilege.
The court held it was not. The report itself was never given to the regulator. The update was provided for a specific regulatory purpose, in response to the FSA's request to be kept informed, and FSA officials were bound by a statutory confidentiality obligation under the Japanese National Public Service Act. No separate confidentiality agreement existed, but the court accepted that this reflected standard practice given the statutory duty already in place.
The ruling drew on the court's own earlier decision in the same litigation - Credit Suisse Virtuoso SICAV-SIF v Insurance Australia Ltd [2026] FCA 1051 - where reports provided to multiple regulators were held not to have been waived. The report at issue here had even stronger protection: it had never left its owner's hands.
White Oak's application was dismissed with costs. The substantive A$170 million White Oak proceedings continue.
For insurers and reinsurers commissioning legal advice across borders - particularly those with parent companies in civil law jurisdictions - the ruling confirms that Australian privilege does not depend on the foreign jurisdiction having an equivalent doctrine. The practical test is whether the communication was confidential, made for the main purpose of legal advice, and would be protected from forced disclosure in its home system.
The allegations in the broader Greensill proceedings have not been determined on the merits. No court has ruled on the substantive claims between the parties.
