Australian Federal Courts (Friday 30 October 2026)

Send us Fan Mail Thirteen decisions in the Federal Courts edition for Friday 30 October 2026, one from the Full Court of the Federal Court of Australia and twelve from the Federal Court, six with Judicial Ledger headnotes. The opening story: an employer that relied on legal advice in deciding to end a contract does not waive privilege by putting its state of mind in issue in an adverse action claim, and the reverse onus changes nothing; with a guide to privilege over investigations, in-house counsel, PR advisers and drafts. Then oppression relief after the company has failed: directors ordered to compensate a diluted minority shareholder personally, measured as a notional buyout (the Full Court appeal also features in today's Court of Appeal brief). Plus a chief executive bound by officers' duties before he joined the board, CBD advertising behind a password, and the legal consequences a visa decision-maker must weigh. Practice and Procedure Desk (opening story). Henderson v Commonwealth Broadcasting Corporation Pty Ltd (Legal Professional Privilege) [2026] FCA 1632 (Jackman J, 30 October 2026) - in adverse action proceedings under s 340 of the Fair Work Act 2009 (Cth), privilege is not waived merely because legal advice was obtained, relied upon or contributed to the termination decision; waiver requires that the holder put the contents of the privileged communications in issue, or brought a case that necessarily lays them open, and the s 361 reverse onus does not alter that inquiry. The board's 'legal strategy' was the CEO's recommendation, identifiable from his memorandum. Investigation documents are privileged where the decision-maker commissioned the investigation for the dominant purpose of obtaining legal advice, despite a non-decision-maker's contrary email and a start before external solicitors were engaged; in-house counsel acting in a professional capacity, PR and IR advisers under confidentiality, unsent drafts and private notes can all attract privilege; affidavit evidence of 'the purpose' may be evidence of dominant purpose, confirmed on inspection. All three interlocutory applications dismissed; costs timetabled. The adverse action claim is an untested allegation and continues. JADE Commercial Law Desk (oppression relief, and a civil penalty pair). Aulich v Scott [2026] FCAFC 139 (Charlesworth, Goodman and Neskovcin JJ, 30 October 2026) - appeal dismissed, unanimously. Dilutive $1.00 share issues were oppressive under s 232(e) of the Corporations Act 2001 (Cth). On relief: there is no starting position against relief once oppression has ceased; oppression is assessed at the institution of proceedings and relief when the discretion is exercised; continuing unremedied effects may justify relief even where the company is in a liquidation the oppression did not cause. The s 233(1) power extends to ordering directors personally to compensate a shareholder for loss distinct from the company's, limited to alleviating the consequences of the oppression, quantified as a notional buyout at the date of each dilution rather than a loss of chance. Also in today's Court of Appeal brief. JADE Australian Securities and Investments Commission v Pattenden (Liability – Jones) [2026] FCA 1617 (Kennett J, 30 October 2026) - a CEO who performs the role, is held out as CEO and to whom reporting lines lead is an officer under s 9(1) of the Corporations Act 2001 (Cth), before appointment as a director; a civil penalty defendant is not immune from a Jones v Dunkel inference; s 180(1) needs exposure to a risk of harm, not actual harm; consciously failing to raise known fellow-director conflicts with the board contravened s 181(1); a conscious decision not to act can be an exercise