The Full Federal Court has upheld ASIC’s appeal in its case against Noumi’s former managing director and CEO Rory Macleod, finding that providing documents to ASIC pursuant to a Voluntary Disclosure Agreement does not necessarily waive any valid legal professional privilege (LPP) claim.
ASIC Deputy Chair Sarah Court said, ‘Voluntary disclosure agreements have been in use by ASIC for over a decade and are an important tool to enable ASIC to fast track its investigations and for parties to cooperate with ASIC.
‘We are pleased the Full Court has determined that production of documents in accordance with these agreements does not automatically result in a waiver of privilege. We expect this decision will remove uncertainty for parties considering whether to enter into such agreements with ASIC in the future.’
The Appeal Court’s decision, which was delivered on 20 December 2024, was subject to non-publication orders that were lifted by the Court on 6 February 2025.
The Full Court’s decision overturns part of an earlier interlocutory decision arising from a discovery dispute between Noumi and Mr Macleod. In that decision, the Court found that Noumi waived LPP when it provided documents to ASIC pursuant to a voluntary disclosure agreement.
ASIC and Noumi both appealed the decision, and Mr Macleod lodged a cross appeal against the finding that the documents were privileged to begin with. The cross appeal failed.
The proceedings against Mr Macleod will now continue, and a liability hearing will be scheduled by the Court in due course.
