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.
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Background
Noumi is an Australian company listed on the ASX in the business of manufacturing and selling dairy and plant-based beverages and nutritional products. Prior to 2021, Noumi also manufactured and sold cereals and snack food products.
Noumi traded as Freedom Foods until 30 November 2021.
ASIC commenced civil penalty proceedings against Noumi and its former managing director and CEO, Rory Macleod and its former CFO and company secretary, Campbell Nicholas on 24 February 2023. See (23-042MR).
On 13 September 2023, Noumi filed an interlocutory application in the proceedings seeking a declaration that LPP attaches to certain documents and resisted production of those documents to Macleod.
Following the hearing of the application on 14 and 15 February 2024, Justice Sharrif found that Noumi established LPP over the documents however impliedly waived it when it provided the documents to ASIC pursuant to a voluntary disclosure agreement.
On 28 May 2024, ASIC and Noumi both filed separate applications in the Federal Court for leave to appeal the decision and order of Justice Shariff.
On 5 August 2024, Justice Jackman found Noumi had contravened its continuous disclosure obligations. See (24-174MR).
On 17 October 2024, Justice Jackman found Nicholas to have been knowingly concerned in Noumi’s continuous disclosure breaches, breached his duties as an officer of Noumi and to have given false or misleading information to Noumi’s directors and auditors. See (24-227MR).
ASIC’s proceedings against Mr Macleod are ongoing.