A federal judge has ruled that a copied policy database used in BCC’s trade credit business stays confidential in Greensill-related insurance proceedings.
On December 8, 2025, the Federal Court of Australia decided a dispute over whether Greensill Bank AG and its insolvency administrator, Dr Michael C Frege, could obtain production of a copy of BCC Trade Credit Pty Ltd’s “Credit Insurance Suite” (CIS) database held by McGrathNicol Advisory, or whether that copy was protected by legal professional privilege. The ruling came in one of the “Greensill Proceedings” involving Insurance Australia Limited and other parties.
The database at the centre of the dispute is BCC’s CIS database. It is a live, cloud-based system supplied by Tinubu Square SA and used by BCC to store and access policy data in its day-to-day operations. Tinubu creates daily backups and retains them for a month, and monthly backups retained for a year. Since 2022, it has also created annual backups, but it does not retain any annual backups for years before 2022.
The background begins in June or July 2020, when Tokio Marine Management (Australasia) Pty Ltd (TMMA) was advised of an underwriting incident involving BCC’s Head of Trade Credit, Greg Brereton. TMMA engaged HWL Ebsworth (HWLE) to provide legal advice and assistance. In August 2020, HWLE engaged McGrathNicol Advisory to provide forensic accounting and investigative support. McGrathNicol prepared a report for the dominant purpose of assisting HWLE to provide legal advice to TMMA.
To do this work, McGrathNicol needed detailed data. After its engagement, it requested access to the CIS database for the sole purpose of obtaining information to perform the tasks requested by HWLE. On August 20, 2020, Tinubu provided access to the CIS database as it stood on August 17, 2020 by using a secure file transfer service to send a copy of the CIS database backup file, along with a file signature, directly to McGrathNicol.
Later, Greensill Bank AG and Dr Frege applied for an order under rule 20.32 of the Federal Court Rules 2011 (Cth) that would have required production of that copy of the CIS database. They argued that the copy was not protected by common law legal professional privilege. They also argued that, even if the copy had been privileged when created, that privilege did not subsist because, in the context of anticipated litigation and intended modifications to the live database, TMMA had failed to ensure that an unmodified version of the database was preserved in non‑privileged form.
The judge rejected those arguments. The decision states that the copy of the CIS database held by McGrathNicol was created and communicated so that McGrathNicol could provide forensic accounting and investigative support to HWLE, allowing TMMA to obtain legal advice and assistance. On that basis, the copy was treated as privileged, irrespective of whether the original CIS database, as it stood on August 17, 2020, was privileged. The court referred to authorities including Commissioner of Australian Federal Police v Propend Finance Pty Ltd and Pratt Holdings Pty Ltd v Commissioner of Taxation.
On the question of later changes to the live system, the court accepted that the database was modified after the copy was taken. Emails referred to the reversal of some Greensill policy data in September and October 2020 after it was recognised that Mr Brereton had not properly input data relating to premiums. Greensill expressly did not submit that the making of the copy, or the subsequent claim for privilege, was affected by an improper purpose. The judge found that privilege in the copy was not lost merely because modifications to the live database were contemplated and made, and because an unmodified version of the CIS database as at August 17, 2020, was not preserved in non‑privileged form.
In the end, the court held that privilege in the McGrathNicol copy of the CIS database as at August 17, 2020, continued to subsist and should be upheld. The interlocutory application dated October 30, 2025 was dismissed, and the applicants were ordered to pay the second respondent’s costs.
For insurers and their advisers, the ruling underlines that carefully managed forensic copies of live policy databases can remain securely protected by legal professional privilege.
