Australian Securities & Investments Commission wins Full Federal Court appeal on voluntary disclosure agreements and legal professional privilege waiver

The Australian Securities & Investments Commission (ASIC) announced that the Full Federal Court has upheld its appeal in civil penalty proceedings involving Noumi’s former managing director and CEO Rory Macleod, finding that providing documents to ASIC under a Voluntary Disclosure Agreement does not necessarily waive any valid legal professional privilege (LPP) claim. The ruling overturns part of an earlier interlocutory decision in a discovery dispute between Noumi and Mr Macleod, which had found Noumi impliedly waived LPP by producing documents to ASIC pursuant to a voluntary disclosure agreement. ASIC and Noumi both appealed that aspect of the interlocutory decision, while Mr Macleod’s cross-appeal challenging whether the documents were privileged in the first place was dismissed. The appeal decision was delivered on 20 December 2024 and became public after non-publication orders were lifted on 6 February 2025. Proceedings against Mr Macleod will now continue, with the Court to schedule a liability hearing in due course.