Australian Securities and Investments Commission v Macleod [2024] FCAFC 174

Australian Securities and Investments Commission v Macleod [2024] FCAFC 174

The Full Court held that the dominant purpose of creation of the PwC Report was for legal advice, and Noumi’s disclosure of the report to ASIC under the VDA did not amount to waiver of privilege, as the VDA maintained confidentiality and did not permit actual disclosure to third parties or use inconsistent with the privilege. Information asymmetry arising from ASIC’s use of the report, absent more, is not sufficient to find waiver.

Parties
Applicant: Australian Securities and Investments Commission; First Respondent: Rory Macleod; Second Respondent: Noumi Limited ACN 002 814 235; Third Respondent: Campbell Nicholas
Jurisdiction
Australia
Judgment Date
20 December 2024
Procedural Posture
Appeal / Judgment on Appeal (leave Granted, Appeal Allowed)
Outcome
Appeal allowed; notices of contention rejected; costs ordered against Mr Macleod.
Legal Topics
Legal Professional Privilege, Waiver of Privilege, Corporate Governance, Production of Documents
Evidence Civil Procedure Legal Professional Privilege Waiver of Privilege Corporate Governance Production of Documents

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Parties

Australian Securities and Investments Commission

Applicant

Rory Macleod

First Respondent

Noumi Limited ACN 002 814 235

Second Respondent

Campbell Nicholas

Third Respondent

Procedural Posture

Appeal / Judgment on Appeal (leave Granted, Appeal Allowed)

Legal Issues

  1. 1 Whether legal professional privilege attaches to the PwC Report produced for Noumi Limited and provided to ASIC
  2. 2 If privilege attached, whether Noumi waived privilege by providing the PwC Report to ASIC under a Voluntary Confidential Legal Professional Privilege Disclosure Agreement (VDA)
  3. 3 Whether the dominant purpose in creating the PwC Report was the provision of legal advice

Ratio Decidendi

The Full Court held that the dominant purpose of creation of the PwC Report was for legal advice, and Noumi’s disclosure of the report to ASIC under the VDA did not amount to waiver of privilege, as the VDA maintained confidentiality and did not permit actual disclosure to third parties or use inconsistent with the privilege. Information asymmetry arising from ASIC’s use of the report, absent more, is not sufficient to find waiver.

Court Disposition

Appeal allowed; notices of contention rejected; costs ordered against Mr Macleod.

Orders

  • Leave to appeal granted.
  • Appeal allowed.