Court upholds effectiveness of voluntary disclosure agreement in maintaining LPP

The Full Court of the Federal Court has allowed an appeal to overturn a previous Federal Court decision in ASIC v Noumi Ltd [2024] FCA 349, which found that Noumi had waived privilege in an investigation report by disclosing that report to ASIC under a Voluntary Disclosure Agreement (VDA).

Last year, the Federal Court delivered a significant judgment that called into question the effectiveness of VDAs as a means of protecting legal professional privilege in materials disclosed under those arrangements. In ASIC v Noumi Ltd [2024] FCA 349, the Federal Court found that a report prepared by PwC had been the subject of a proper claim for privilege but that Noumi had waived that privilege by disclosing it to ASIC under a VDA. Both ASIC and Noumi applied for leave to appeal the decision.

The Full Court has now made orders allowing the appeals and finding that Noumi did not waive privilege in the PwC report by disclosing it to ASIC under a VDA.

While the Full Court’s decision confirms that VDA arrangements can be an effective way to maintain legal professional privilege, its reasons underscore the need for care to be taken before commissioning an investigation report, and entering into any limited waiver arrangement, such as VDAs.

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