ASIC v Macleod: Lessons for privilege in Voluntary Disclosures to Regulators

Published

Feb 13 2025

Written By

I am an experienced litigation and investigations lawyer based in Sydney, leading Bird & Bird's Australian disputes and investigations practice and co-leading our global Defence and Security practice.

Jonathan Tay

Senior Associate
Australia

I am a senior associate in the Dispute Resolution team in Sydney. I provide succinct, solutions orientated advice to help our clients solve complex problems, mitigate future risks and develop strategies to simplify their decision-making process.

Evelyn Park

Associate
Australia

I am an associate in our Dispute Resolution Group in Sydney

Practices

Authors: Jonathon Ellis, Jonathan Tay, Evelyn Park, Jonathan Wong

Introduction

A pivotal appeal judgment delivered in December 2024 (lifted from non-publication orders in February 2025) clarified that the production of documents to Australian Securities Investment Commission (ASIC) pursuant to a voluntary disclosure agreement (VDA) did not amount to a waiver of legal professional privilege (LPP).

In the case of Australian Securities and Investments Commission v Macleod [2024] FCAFC 174 (Appeal Judgment), the Full Federal Court found in favour of ASIC and Noumi Limited (formerly Freedom Foods Groups Ltd) (Noumi) that the primary judge did not err in the application of the dominant purpose test but did err in his conclusion that LPP in the documents had been waived.

This article delves into the positive implications of the Appeal Judgment, which removes uncertainty for businesses the subject of any regulatory investigations who may be concerned about the exposure of risks arising from producing documents pursuant to a VDA for cooperation with regulators and its implications on protecting privileged information.

Background

The Appeal Judgement overturns part of an earlier interlocutory decision following orders for the production of documents in Australian Securities and…