ASIC’s appeal to the Full Federal Court in its case against Noumi’s former CEO and MD, Rory MacLeod, has been successful. The court found that providing documents to ASIC in accordance with a voluntary disclosure agreement did not waive a valid legal professional privilege (LPP) claim.
The Appeal Court’s decision was delivered on 20 December 2024 but was subject to non-publication orders that were lifted by the court on 6 February 2025.
The Full Court’s decision overturned part of an earlier interlocutory decision that stemmed from a discovery dispute between Noumi and 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 that decision, while Macleod lodged a cross appeal against the finding that the documents were privileged to begin with. The cross appeal failed.
The commission said the proceedings against Macleod will now continue, and a liability hearing will be scheduled by the court in due course.
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.”
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.
The action related to Noumi failing to disclose material information about the value of inventories in its financial reports for the full year ending 30 June 2019 and the half year ending 31 December 2019, when it was trading as Freedom Foods Group.
On 5 August 2024, Justice Jackman found Noumi had contravened its continuous disclosure obligations.
On 17 October 2024, Justice Jackman found Nicholas had been knowingly concerned in Noumi’s continuous disclosure breaches, breached his duties as an officer of Noumi and gave false or misleading information to Noumi’s directors and auditors.
ASIC’s proceedings against Macleod are ongoing.
Class action settled for $43 million
In October last year, Noumi reached an agreement to settle the consolidated class action against itself and its former auditor, Deloitte Touche Tohmatsu. The class action was brought by Slater & Gordon and Phi Finney McDonald on behalf of shareholders in relation to breaches of the Corporations Act that saw the shareprice plummet in 2020.
Of the $43 million agreed, Noumi will pay $11.56 million, which will be met in full by its insurers. It will also pay around $4 million in legal costs.
