FEDERAL COURT OF AUSTRALIA

Australian Securities and Investments Commission v Noumi (No 2) [2024] FCA 495

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to s 21 of the Federal Court of Australia Act 1976 (Cth), the Court declares that:

(a)    legal professional privilege attaches to the Privileged Material (as defined in the Schedule to these Orders); and

(b)    the documents containing the Privileged Material are privileged from production.

2.    If neither the Plaintiff nor the First Defendant apply for leave to appeal from the judgment in Australian Securities and Investments Commission v Noumi Ltd [2024] FCA 349 and/or these Orders (other than Orders 3 and 4) within the time period provided for by Order 1 of the Orders of Shariff J dated 23 April 2024 then, within 3 business days after the expiry of that time period, the First Defendant is to provide to the Plaintiff and the Second Defendant electronic copies of the Waiver Document Portions (as defined in the Schedule) in their unredacted form.

3.    The Second Defendant is to pay 75% of the First Defendant’s costs of and incidental to responding to the Second Defendant’s submissions filed on 31 October 2023 by way of:

(a)    the First Defendant’s submissions in reply filed on 22 November 2023; and

(b)    the affidavits of Ms Julia Yvette Turner and Ms Rani Sara John filed on 22 November 2023.

4.    The parties are to otherwise bear their own costs of the application.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

SCHEDULE

1.    In these Orders:

(a)    “Privileged Material” means:

(i)    The contents of FFG.0001.0523.0051 that are redacted and appear at page 88 of Exhibit RSJ-16;

(ii)    The contents of FFG.0001.0520.0002 that are redacted and appear at page 89 of Exhibit RSJ-16;

(iii)    The Privileged Communications Protocol dated on or around 17 July 2020 referred to in paragraph [29] of the affidavit of Rani Sara John sworn 3 October 2023;

(iv)    FRG.0005.0021.0171 at .0335 (being page 165, lines 4-13 of the document) (a redacted copy of which appears at page 109 of Exhibit RSJ-16);

(v)    FRG.0005.0004.0102 at:

A.    .0141 (being page 39, lines 22-24 of the document) (a redacted copy of which appears at page 112 of Exhibit RSJ-16);

B.    .0151 (being page 49, lines 5-7 of the document) (a redacted copy of which appears at page 114 of Exhibit RSJ-16);

(vi)    The portions of COA.0010.0003.0106 (a redacted copy of which appears at pages 80 to 82 of Exhibit RSJ-16) described in paragraph [15(a)-(b)] of the affidavit of Rani Sara John sworn 30 April 2024, and shown in blue and green transparent highlighting in Confidential Exhibit RSJ-22.

(b)    “Waiver Document Portions” means the portions of the following documents or parts of documents as described in the Updated Disputed Privilege Claims Schedule, which appears at pages 8 to 13_1 of Part A of the electronic Court Book provided to the Associate to Justice Shariff on 23 February 2024 at 5:07pm:

(i)    FRG.1000.0005.0031;

(ii)    FRG.1000.0005.0008;

(iii)    FRG.1000.0006.0009;

(iv)    COA.0010.0003.3288 (a redacted copy of which appears at page 84 of Exhibit RSJ-16);

(v)    FRG.1018.0001.0001 (a redacted copy of which appears at pages 85 to 87 of Exhibit RSJ-16);

(vi)    COA.0010.0004.4043 (a redacted copy of which appears at page 92 of Exhibit RSJ-16);

(vii)    FRG.0005.0004.0102 at:

A.    .0137 (being page 35, lines 17-19 of the document) (a redacted copy of which appears at page 111 of Exhibit RSJ-16);

B.    .0147 (being page 45, lines 8-9 of the document) (a redacted copy of which appears at page 113 of Exhibit RSJ-16);

C.    .0152 (being page 50, lines 9-10 of the document) (a redacted copy of which appears at page 115 of Exhibit RSJ-16);

D.    .0176 (being page 74, lines 18-20 of the document) (a redacted copy of which appears at page 118 of Exhibit RSJ-16);

E.    .0198 (being page 96, lines 7-11 of the document) (a redacted copy of which appears at page 122 of Exhibit RSJ-16);

(viii)    FRG.0005.0015.0122 at .0160 (being page 39, lines 1-3 of the document) (a redacted copy of which appears at page 127 of Exhibit RSJ-16);

(ix)    FRG.0005.0009.0126 at .0247 (being page 122, lines 13-16 of the document) (a redacted copy of which appears at page 139 of Exhibit RSJ-16);

(x)    The portions of COA.0010.0003.0106 described in paragraph [15(c)] of the affidavit of Rani Sara John sworn 30 April 2024, and shown in yellow transparent highlighting in Confidential Exhibit RSJ-22.

REASONS FOR JUDGMENT

SHARIFF J:

INTRODUCTION

1    I delivered a judgment in this matter on 11 April 2024: Australian Securities and Investments Commission [2024] FCA 349 (Principal Judgment or PJ). I directed the parties to confer and provide any agreed or competing orders to give effect to my reasons and in relation to the question of costs: PJ [254]-[257]. The parties have reached substantial agreement on the first of these matters, but have not reached agreement on the second. In addition, the parties have brought to my attention an issue relating to the extent of waiver of privilege in Contested Documents 9, 10 and 14 (the Contingent Waiver Issue). Accordingly, these reasons deal with:

(a)    the Contingent Waiver Issue;

(b)    the orders which should be made as to costs; and

(c)    the final orders which should be made to give effect to my reasons.

2    These reasons should be read in conjunction with the Principal Judgment.

THE CONTINGENT WAIVER ISSUE

3    The Contingent Waiver Issue arises because the parties were not, in fact, agreed on the determination of certain issues that were subsidiary to the primary matters that I considered in the Principal Judgment. This needs to be explained.

4    I observed in the Principal Judgment at [2] that, when the privilege dispute first arose between the parties, Noumi claimed privilege (either in whole or in part) over 135 documents. Initially, Mr Macleod challenged Noumi’s claim of privilege over 53 of those documents. By the time Noumi came to file evidence in support of its privilege claims, it asserted legal professional privilege on two different grounds. Specifically, it asserted that:

(a)    some of the disputed documents, or parts of them, were privileged on the basis of an “Expanded Engagement” between Noumi and Ashurst by which Ashurst provided ongoing and ad hoc legal advice on various issues including in respect of the “Inventory Issue” (as defined at PJ [15]) and certain related accounting matters: see PJ [27]; and

(b)    other documents, or parts of them, were privileged on the basis of the “Ashurst PwC Engagement” (which I described in the Principal Judgment, and will continue to describe for present purposes, as the “PwC Michie Engagement”): see PJ [34].

5    In the case of some of the disputed documents, Noumi claimed privilege on both grounds.

6    Further, in respect of some of the disputed documents, Noumi’s claim(s) covered the whole of a particular document. In relation to others, the claim(s) of privilege applied only to portions of those documents which had been redacted. As I explain further below, Contested Documents 9, 10 and 14 were ones in respect of which Noumi claimed privilege only over the redacted portions of those documents, and (at least in the case of Documents 10 and 14) asserted such privilege on both of the grounds identified at [4] above.

7    By the time of and during the course of the hearing, Mr Macleod narrowed the dispute between the parties to 14 “Contested Documents” (relating to 15 documentary items in dispute, as set out in the Updated Disputed Privilege Claims Schedule provided to the Court on 20 February 2024): see PJ [3]. Mr Macleod initially conducted his case on the basis that Noumi had not established privilege in respect of the Contested Documents on any basis. Indeed, as explained further below in my reasons relating to costs, prior to the hearing before me, Mr Macleod advanced six alternative “non-privileged purposes” as being the true purposes for the creation of the Contested Documents. However, during the course of the hearing before me, Mr Macleod indicated that, with one exception relating to Document 15, he only challenged Noumi’s claim for privilege over the Contested Documents to the extent that this claim relied upon the PwC Michie Engagement and that challenge was essentially confined to two arguments (which I consider later in these reasons). Mr Macleod conducted his argument on the basis that, if Noumi established that the PwC Report was privileged by reason of the PwC Michie Engagement, then, each of the remaining Contested Documents (other than Document 15) would also be the subject of privilege. It followed that Mr Macleod did not contest Noumi’s claims for privilege over the Contested Documents to the extent that those claims relied upon the Expanded Engagement.

8    Relying upon the way Mr Macleod presented his case, I proceeded to determine Noumi’s claim for privilege on the basis that the parties were agreed that the resolution of Noumi’s claim that privilege attached to the PwC Report would also determine its claim for privilege over all of the Contested Documents (see PJ [5]), except for Document 15 which I dealt with separately at PJ [243]-[245]. As this was the way the oral argument evolved before me, I also proceeded on the basis that the parties were agreed that it would follow that if any privilege in the PwC Report was waived, this would also result in waiver of privilege in each of the Contested Documents which Mr Macleod claimed would be affected by that waiver (see PJ [6]).

9    All of the above seems straightforward enough, but as it happens there are some wrinkles arising from subtleties in the position that Noumi put to the Court and which Mr Macleod did not address in the arguments before me. This comes about because in relation to Documents 10 and 14, Noumi asserted privilege over certain parts of those documents on both grounds identified at [4] above. In relation to Document 9, Noumi asserted privilege on the basis of the Expanded Engagement. Further, Noumi also contended that if privilege in the PwC Report was waived, it would not follow that privilege in the redacted portions of Documents 9, 10 and 14 would necessarily be waived as some of those redacted portions dealt with matters other than the PwC Report.

10    The result of the above is that there are further matters which I need to determine. The further result is that it does not follow from my finding that privilege was waived in the PwC Report that this necessarily means privilege was also waived in each of the redacted parts of Documents 9, 10 and 14: cf PJ [217]. To the extent that I had so found in the Principal Judgment, it was a finding made on the basis of the way the argument evolved at the hearing before me but in circumstances where the parties did not, during oral argument, address me specifically on Documents 9, 10 and 14. Accordingly, following the issue being raised with me, I convened a case management hearing and invited further evidence and submissions from the parties as to the Contingent Waiver Issue. As I had not previously made final orders disposing of the interlocutory application and no such final orders have been entered, it is open for me to re-consider or further consider and determine whether privilege has been established and, if so, waived in respect of the redacted portions of Documents 9, 10 and 14: see and compare Kitoko v Registrar of the Federal Court of Australia [2024] FCAFC 14 at [26]-[40]; Australian Securities and Investments Commission v Marco (No 15) [2024] FCA 347 at [215]-[233].

11    The remaining matters that I need to address are:

(a)    whether, and on what bases, the redacted portions of Documents 9, 10 and 14 are privileged; and

(b)    if so, whether privilege in those redacted portions has been waived by reason of the waiver of privilege in the PwC Report.

Document 9

12    Document 9 is an examination transcript. Parts of it have been redacted by Noumi (Document 9 Redactions). Ms Rani John of Ashurst has given evidence that the redacted portions of this document are privileged as they convey aspects of legal advice provided by Ashurst to Noumi as part of the Expanded Engagement. Next, Noumi contends that the Document 9 Redactions do not solely disclose the contents of the PwC Report, but disclose communications following, and consequential upon, the delivery of the PwC Report. Ms John’s evidence is that the Document 9 Redactions refer to communications that were informed by and conveyed aspects of legal advice provided to Noumi by Ashurst.

13    In relation to Document 9, Mr Macleod says that it was not apparent to him from Ms John’s evidence whether the Document 9 Redactions disclosed the contents of the PwC Report or communications disclosing the contents of separate legal advice. Mr Macleod accepts that, to the extent that the Document 9 Redactions disclose communications concerning the PwC Report which formed part of a continuation of work carried out pursuant to the PwC Michie Engagement and which were informed by and which conveyed aspects of legal advice provided by Ashurst, waiver of privilege in the PwC Report would not result in waiver of privilege over those portions.

14    I have examined the Document 9 Redactions which relate to both the subject matter of the PwC Report and related accounting matters including a “presentation” which, on Ms John’s evidence, recorded or conveyed legal advice given by Ashurst. I am satisfied that the Document 9 Redactions are the subject of legal professional privilege on the grounds of the Expanded Engagement. Aspects of these redactions are also likely privileged on the basis of the PwC Michie Engagement.

15    I am satisfied that privilege in the Document 9 Redactions has not been waived. The Document 9 Redactions record the fact of the PwC Report, but do not disclose its contents. Rather, the Redactions refer to a “presentation” which conveys the contents of legal advice about the PwC Report and other matters.

16    It follows that no privilege has been waived over the Document 9 Redactions.

Document 10

17    Document 10 is also an examination transcript, portions of which have been redacted by Noumi. Those redactions fall into two categories. The first category covers redacted portions over which Noumi asserted privilege only on the basis of the PwC Michie Engagement (Category 10.1 Redactions). (These are set out at Item 10 of the Updated Disputed Privilege Claims Schedule). At the case management hearing on 22 April 2024, Noumi accepted that as a result of my finding of waiver of privilege in the PwC Report in the Principal Judgment, the Category 10.1 Redactions were also waived (subject to its right to seek leave to appeal).

18    The further evidence filed by Ms John in respect of the Contingent Waiver Issue now makes clear that there is a second category of Document 10 redactions covering portions over which Noumi asserted privilege on the basis of both the PwC Michie Engagement and the Expanded Engagement (Category 10.2 Redactions). (These are set out at Item 14 of the Updated Disputed Privilege Claims Schedule). Ms John’s evidence is that the redactions at page 39 lines 22-24 of Document 10 are privileged in that they disclose matters about which Ashurst was asked to advise pursuant to the Expanded Engagement, as well as matters considered by PwC in preparing the PwC Report. Ms John has also given evidence that the redactions at page 49 lines 5-7 disclose both parts of the PwC Report as well as matters considered by Ashurst in providing legal advice to Noumi in connection with the PwC Report. As a result, Noumi contends that the Category 10.2 Redactions are the subject of privilege on both grounds identified at [4] above. In relation to waiver, Noumi contends that the Category 10.2 Redactions disclose some of the subject matter of the PwC Report, but that they simultaneously disclose some of the subject matter of Ashurst’s Expanded Engagement and remain privileged on that basis.

19    Mr Macleod says that it was not apparent to him from Ms John’s earlier evidence whether the redacted portions separated the matters considered by Ashurst from the matters considered by PwC or from the substance of the PwC Report, or disclosed both simultaneously. He accepts that to the extent that the redacted portions of Document 10 coextensively disclose matters considered by Ashurst in providing Noumi with legal advice, as well as matters considered by PwC in preparing the PwC Report, and coextensively disclose the substance of the PwC Report, as well as matters considered by Ashurst in providing legal advice in connection with that Report, waiver of privilege in the PwC Report would not result in waiver of privilege over these portions.

20    Having examined Document 10 and by reason of Ms John’s evidence, I am satisfied that each of the Category 10.2 Redactions are privileged on both the grounds of the Expanded Engagement and the PwC Michie Engagement. These redactions address both the PwC Report and other related matters that were both the subject of the investigations conducted by Ms Michie and related accounting matters about which Ashurst then provided advice. The subject matter of the redactions is overlapping and needs to be read together in the surrounding context of other answers being given by the examinee as recorded in the transcript. The subject matter of the redactions cannot be neatly delineated between those which strictly relate to the PwC Report and its contents, and those that relate to advice given by Ashurst in relation to that Report and related accounting matters. For this reason, I am satisfied that privilege in the Category 10.2 Redactions has not been waived.

Document 14

21    Document 14 is a file note created by Deloitte of a meeting between Mr David White of Deloitte and Mr Trevor Allen. Ms John has given evidence that the redacted portions of this document disclose the contents of the PwC Report and legal advice provided by Ashurst to Noumi concerning communications with ASIC. Ms John’s further affidavit evidence provided to the Court indicates that the redactions fall into three categories:

(a)    communications that disclose the substance of legal advice provided by Ashurst to Noumi concerning communications with ASIC (Category 14.1 Redactions);

(b)    communications that disclose, co-extensively with the content of the PwC Report, the substance of confidential communications between Ashurst and Noumi in the course of the Expanded Engagement concerning matters considered in the PwC Report, for the purpose of providing legal advice to Noumi (Category 14.2 Redactions); and

(c)    communications that disclose the contents of the PwC Report (Category 14.3 Redactions).

22    Noumi accepts that the Category 14.3 Redactions were privileged solely on the basis that they tended to disclose the contents of the PwC Report and, on that basis, waiver of privilege in the PwC Report resulted in waiver of privilege in those portions of Document 14 (subject to its right to seek leave to appeal).

23    However, Noumi maintains that the Category 14.1 and 14.2 Redactions were privileged on the alternative basis of the Expanded Engagement and, therefore, that waiver of privilege in the PwC Report did not result in waiver of privilege over these redacted portions.

24    Mr Macleod again says that it was not apparent from Ms John’s earlier evidence whether the redacted portions in Document 14 separated the legal advice provided by Ashurst from the substance of the PwC Report, or dealt with both simultaneously. Mr Macleod accepts that, to the extent that the redacted portions of Document 14 relate to privileged communications disclosing legal advice or coextensively disclose the contents of the PwC Report and confidential communications between Noumi and Ashurst, waiver of privilege in the PwC Report would not result in waiver of privilege over those portions of Document 14.

25    Having examined Document 14 and by reason of Ms John’s evidence, I am satisfied that privilege attaches to the Category 14.1 and 14.2 Redactions on the basis of the Expanded Engagement and that privilege attaches to the Category 14.3 Redactions on the basis of the PwC Michie Engagement.

26    I am satisfied that privilege has not been waived in relation to the Category 14.1 and 14.2 Redactions as these portions either solely relate to advice given by Ashurst in relation to matters separate to the PwC Report or disclose matters that both relate to the contents of the PwC Report and the legal advice given by Ashurst in relation to it. I am satisfied that privilege has been waived in relation to the Category 14.3 Redactions as they solely disclose the contents of the PwC Report, which Noumi accepted to be the case (subject to its right to seek leave to appeal).

ORDERS THAT SHOULD BE MADE AS TO COSTS

27    The parties’ respective positions as to costs were as follows:

(a)    Noumi initially provided orders to the Court indicating that each party should bear its own costs, but then filed written submissions contending that Mr Macleod should pay 50% of its costs;

(b)    Mr Macleod’s position is that Noumi should pay 40% of his costs and that ASIC should pay 10% of his costs. Alternatively, Mr Macleod submits that each party should bear its own costs;

(c)    ASIC’s position is that it should bear its own costs of the application.

28    For the reasons that follow, I am satisfied that each party should bear its own costs, subject to one exception in respect of which Mr Macleod should pay Noumi’s costs thrown away by reason of certain matters advanced but not pressed by him.

Applicable principles

29    The appropriate order as to costs is quintessentially a discretionary matter for the Court: s 43(2), Federal Court of Australia Act 1973 (Cth) (FC Act); Wong v Wong (No 2) [2022] FCA 269 at [11], citing Summers v Repatriation Commission (No 2) [2015] FCAFC 64 at [14]. The exercise of the Court’s discretion is unfettered, and no rule or principle should be applied mechanically in the determination of where costs should lie in any particular case: Howards Storage World Pty Ltd [2010] FCAFC 5; (2010) 182 FCR 84 at [17] per Gray J with whim Lindgren J agreed. An order for costs is intended to be compensatory, and not punitive: Latoudis v Casey (1990) 170 CLR 534 at 543 (Mason CJ), 563 (Toohey J) and 567 (McHugh J); Oshlack v Richmond River Council (1998) 193 CLR 72 at 97 [67] (McHugh J).

30    In LFDB v SM (No 2) [2017] FCAFC 207, the Full Court of the Federal Court (Besanko, Jagot and Lee JJ) observed at [6] that the presently relevant approach is as was explained by Gleeson CJ, Gummow, Hayne and Crennan JJ in Foots v Southern Cross Mine Management Pty Ltd [2007] HCA 56; (2007) 234 CLR 52 at 62-63 [25] that although there is “no absolute rule”, one of the “general propositions” regarding an award of costs is that “the award is discretionary but generally that discretion is exercised in favour of the successful party”: citing also Oshlack at 88-89 [40]-[41] (Gaudron and Gummow JJ). Although the usual rule is that “costs follow the event” (see r 40.04 of the Federal Court Rules 2011 (Cth) (FC Rules)) or are awarded in favour of the “successful party”, determination of the “event” and identification of the successful party is often not clear cut and that is particularly the case in privilege disputes where each disputing party has a measure of success.

31    It is also within the discretion of the Court to take into account in an award of costs, the time taken up by a successful party in respect of issues upon which it has failed. However, such an exercise is not one of mathematical calculus but one of impression and judgment: Sze Tu v Lowe [2015] NSWCA 91 at [40]; Harvard Nominees Pty Ltd v Tiller (No 3) [2020] FCA 1054 at [7]; Dodds Family Investments Pty Ltd (formerly Solar Tint Pty Ltd) v Lane Industries Pty Ltd (1993) 26 IPR 261 at 271-2.

Noumi and Mr Macleod should bear their own costs (subject to an exception)

32    Noumi claims that it was the successful party because it was “entirely successful” in establishing the existence of privilege in relation to the Contested Documents. It contends that Mr Macleod’s success in establishing waiver of privilege over the PwC Report reflected success on only one issue, which impressionistically reflected a 25% success in the proceedings before me. In support of this position, Noumi submits that the way Mr Macleod conducted his case led to significant costs being incurred. It points to the fact that initially Mr Macleod disputed privilege over a far greater number of documents which put Noumi to the cost of seeking to establish privilege over numerous documents in respect of which Mr Macleod later withdrew his contentions. Noumi also points to the fact that Mr Macleod in written submissions advanced six separate and substantive “non-privileged purposes” for the creation of the Contested Documents and several grounds of waiver, many of which by the hearing were either abandoned in whole or only faintly put. Noumi submits that on an impressionistic approach, it had success in relation to 75% of the arguments before me, and allowing for Mr Macleod’s success as to 25%, it should have 50% of its costs paid by Mr Macleod.

33    Mr Macleod contends that the phrase “costs follow the event” has been used to describe an award of costs based on the overall outcome, rather than success or failure on individual issues: citing Queensland North Australia Pty Ltd v Takeovers Panel (No 2) [2015] FCAFC 128; (2015) 236 FCR 370 at [16]. However, he acknowledges that costs are in the discretion of the Court and a “successful party” may be awarded less than its costs, or costs may be apportioned based upon success on particular issues: citing Idenix Pharmaceuticals LLC v Gilead Sciences Pty Ltd (No 2) [2018] FCAFC 7 at [3]; Firebird Global Master Fund II Ltd v Republic of Nauru (No 2) [2015] HCA 63; (2015) ALR 192 at [6]; and Les Laboratoires Servier v Apotex Pty Ltd [2016] FCAFC 27; (2016) 247 FCR 61 at [297], [298] and [303]. Mr Macleod submits that the arguments in relation to waiver of privilege in the PwC Report took up a substantial portion of the hearing and that in the result he has succeeded in obtaining access to at least eight of the 14 Contested Documents, and some parts of other documents (being some of the redacted portions of Documents 10 and 14). He contends that access to the PwC Report and waiver of privilege in that Report was the dominant issue in the hearing, and that he was successful on that issue notwithstanding that he did not succeed on every issue. As a result, Mr Macleod contends that he should be entitled to 50% of his costs as he was the successful party. Mr Macleod acknowledges that a significant part of the hearing before me was taken up with the contest as to whether Noumi had established privilege in the Contested Documents, but contends that his position as to apportionment of costs reflects the appropriate outcome.

34    It will be apparent from the above paragraphs that each of the disputing parties claimed to have had success in the overall outcome such that it should entitled to costs, but with a reduction to make an allowance for the respective issue(s) on which it did not succeed. I do not consider that this case is one where the issue of costs should be approached on the basis that one or the other disputing party was the successful party in the event, or as being successful in the overall outcome: see Queensland North at [16]. There were two primary issues in dispute between Noumi and Mr Macleod. The first related to whether Noumi had established privilege in the Contested Documents and the second related to whether privilege in the PwC Report had been waived (which then gave rise to a subsidiary issue as to whether that waiver extended to or affected other documents). Noumi succeeded in establishing privilege but failed in resisting a finding of waiver of privilege in respect of the PwC Report. The other side of this coin is that Mr Macleod failed in resisting the finding of privilege asserted by Noumi, but succeeded in establishing that privilege was waived in the PwC Report and in some (but not all) of the documents that disclosed the contents of the PwC Report. In my impressionistic assessment, it would not be appropriate to characterise one issue as being more dominant than the other. Nor do I consider that either party was the ultimate winner in the overall outcome, such that one party should pay the other’s costs. In those circumstances, I do not consider that it would be appropriate to approach costs on the basis that they should “follow the event”, as the “event” is not clear cut.

35    In arriving at this conclusion, I do not accept Mr Macleod’s contention that my findings in relation to the PwC Report was the primary issue in dispute between the parties, and that he has succeeded on this primary issue. In my view, this is too simplified an analysis of the conduct of the proceedings before me. The articulation of the primary issue in this way does not reflect the way in which the proceedings were conducted both in written and oral submissions, as well as the evidence that was filed. A signification portion of the written materials (including evidentiary materials) and the hearing before me was taken up by Noumi seeking to establish privilege in the Contested Documents and Mr Macleod resisting Noumi’s claim. I also granted leave to Mr Macleod’s Counsel to cross-examine Ms John for this purpose, which occupied a portion of the first day of the two day hearing before me. The fact is that Mr Macleod chose two paths to his claimed success: first, he claimed that none of the Contested Documents were privileged in which case he would have obtained access to the PwC Report, and, second he claimed that if the PwC Report was privileged, Noumi had waived such privilege. Although he has succeeded in ultimately being able to access the PwC Report, it is too simplified an analysis of the hearing that was conducted before me to say that he has succeeded overall.

36    Equally, I do not accept Noumi’s position that Mr Macleod should pay 50% of Noumi’s costs, which reflects that it had success as to 75% of the issues before me and allows for a reduction of 25% on account of Mr Macleod’s success on the question of waiver of privilege in the PwC Report. Noumi’s approach seeks in essence to separate the two primary issues by reference to its impression as to the overall resources of the parties and the Court that were taken up in the determination of its interlocutory application. The result of this would be that one party, Noumi, would be compensated for its costs by a payment in its favour for part of its costs, and the other party would be compensated for its success by way of the reduced liability to pay the other’s costs. Such an approach does not do justice as between the parties in respect of their equal measure of success overall. Nor do I consider that it would be an appropriate exercise of discretion to order one party to pay the other’s costs on the basis of an issue-by-issue examination of success and failure in circumstances where they each had success and failure on the two primary issues.

37    The appropriate order is that each party bear their own costs, subject to the exception below.

Exception in relation to costs thrown away by reason of arguments not pressed

38    Although there were two primary issues that I had to determine, Mr Macleod advanced several substantive arguments in relation to each of them. He subsequently did not press many of these arguments, but not before they had occasioned costs to be incurred by Noumi in responding to those arguments. Although it would not be entirely correct to characterise Mr Macleod as having abandoned “claims” in the sense that his arguments were not causes of action, I consider that Mr Macleod should pay Noumi’s costs incurred but thrown away as a result of the raising of those arguments. To put this in context, I need to explain the way things evolved.

39    Noumi filed its interlocutory application on 12 September 2023 seeking declarations that privilege attached to communications in 53 documents.

40    On 27 September 2023, Mr Macleod informed Noumi that it was no longer pressing a dispute with respect to 19 of the 53 documents, leaving 34 documents in dispute.

41    On 3 October 2023, Noumi informed Mr Macleod that it was no longer pressing its privilege claims in respect of 7 of the remaining documents, and certain of the redactions in the remaining documents, leaving 27 documents in dispute.

42    On 3 and 4 October 2023 respectively, Noumi filed evidence and submissions which recorded 26 documents in dispute.

43    On 31 October 2023, Mr Macleod filed submissions setting out six “non-privileged purposes” which he claimed demonstrated that the PwC Report was not privileged. Mr Macleod asserted that these “non-privileged purposes” were to:

(a)    assist the company to “resolve” the Inventory Issue and determine correct accounting treatment for the company’s financial statements for FY20;

(b)    assist Noumi to produce its statutory accounts for FY20;

(c)    conduct a review of all “accounting matters” including a complete review of accounting policies;

(d)    assist the company to persuade its lenders, e.g. that it had met gearing covenants;

(e)    assist the company to investigate its financial position; and

(f)    prepare a report to furnish to ASIC in order to assist ASIC with an anticipated investigation.

44    In those same submissions of 31 October 2023, Mr Macleod set out five alleged grounds of waiver of privilege in the PwC Report, namely, waiver by:

(a)    liaison and mutual cooperation between PwC teams;

(b)    provision of the PwC Report to ASIC;

(c)    disclosure in ASX announcements and company reports;

(d)    disclosure to ASIC through s 19 examinations; and

(e)    disclosure in communications with Deloitte.

45    Mr Macleod’s submissions of 31 October 2023 were some 32 pages in length. Although they contained a factual narrative and references to applicable principles, my assessment is that the vast majority of these submissions addressed the six “non-privileged purposes” and the five alleged grounds of waiver.

46    Noumi addressed each of these purposes and grounds of waiver in its submissions in reply filed on 22 November 2023. It also filed further evidence on that date. This evidence consisted of an Affidavit of Ms Julia Turner dated 22 November 2023 which addressed amongst other things the various streams of work that had been undertaken by PwC for or on behalf of Noumi. Ms John filed a further Affidavit also dated 22 November 2023 which addressed various matters including the s 19 transcripts of evidence given by current and former officers of Noumi. Noumi’s submissions relied upon these two Affidavits in seeking to rebut Mr Macleod’s contentions as to the six “non-privileged purposes” and five grounds of waiver.

47    On 22 December 2023, following receipt of Noumi’s submissions and evidence in reply, Mr Macleod filed further submissions in which he withdrew his claims of waiver in respect of some of the then contested documents (including the ESOP Report (as defined at PJ [31]), the s 19 examination transcripts (to the extent that those were independent, rather than contingent, waiver claims), and three documents which had been inadvertently produced to ASIC). This further narrowed the dispute between the parties. In these further submissions, Mr Macleod first appeared to refine or distil his arguments seeking to contest privilege down to two primary non-privileged purposes: the first being related to Mr Allen’s or Noumi’s purpose in ascertaining “what had happened” (which I referred to as the Accountability and Causal Issues at PJ [67]) and the second being the “ASIC purpose” (as referred to at PJ [93]).

48    At the hearing before me, Mr Macleod did not contend for the six non-privileged purposes set out in his written submissions of 31 October 2023 but pressed the two purposes I have identified in the preceding paragraph. Mr Macleod also abandoned two of his remaining grounds of waiver (being waiver by liaison between PwC teams and waiver by communication with Deloitte). He continued to press waiver resulting from disclosure in ASX publications, but did so by putting his argument at its highest by reference to only one ASX publication: see PJ [235]. He also did not press a challenge in relation to one of the remaining documents, leaving 14 documents in dispute relating to 15 documentary items.

49    Noumi relies on the above conduct to contend that Mr Macleod caused it to occasion costs in respect of abandoned arguments. Noumi relies upon the judgment of the Full Court in LFDB where the Court (Besanko, Jagot and Lee JJ) stated at [7]:

It has often been remarked that the discretion as to costs is unfettered, but in exercising the discretion to award costs, s 37N(4) of the [Federal Court of Australia Act 1976 (Cth) (FC Act)] requires the Court to take account of any failure by a party to comply with the overarching purpose of the civil procedure provisions, namely to facilitate the just resolution of disputes according to law as quickly, inexpensively and efficiently as possible: see s 37M(1). An award of indemnity costs is not a punitive measure, but is designed for “compensating a party fully for costs incurred, as a normal costs order could not be expected to do, when the court takes the view that it was unreasonable for the party against whom the order is made to have subjected the innocent party to the expenditure of costs”: Hamod v New South Wales [2002] FCAFC 97; (2002) 188 ALR 659 at 665 [20] (Gray J, Carr and Goldberg JJ agreeing). Consistently with facilitating the overarching purpose, such circumstances may include where a proceeding is unduly prolonged by groundless contentions: see Ragata Developments Pty Ltd v Westpac Banking Corporation at 7, 8 (unreported, Davies J, 5 March 1993), and more generally Melbourne City Investments Pty Ltd v Treasury Wine Estates Ltd (No 2) [2017] FCAFC 116 at [3]–[5] per Jagot, Yates and Murphy JJ.

50    It is within the discretion of the Court to take into account the abandonment of issues without explanation particularly where they have occasioned other parties to expend costs that are necessarily thrown away by reason of the abandonment: Haviv Holdings Pty Ltd v Howards Storage World Pty Ltd (No 2) [2009] FCA 652 at [34]-[35] (affirmed on appeal); Queensland North at [24]; Oil Basins Limited v Watson [2014] FCAFC 154 at [163] and [187].

51    Mr Macleod seeks to answer Noumi’s criticisms by contending that the arguments he advanced as to the non-privileged purposes and waiver were from the position of a person asserting such arguments without having examined the relevant documents, as is the case with privilege disputes. He contends that the narrowing of the disputed documents and the issues for determination by the Court is to be expected in such circumstances where the party disputing privilege refines its position having seen the evidence and arguments of the party claiming privilege: citing and relying upon Mitic v Oz Minerals Ltd [2015] FCA 1152 at [59] per Edelman J.

52    I accept that Mr Macleod’s arguments have some force in respect of the process by which the number of documents in dispute were narrowed from 53 to 27 to 14 (referable to 15 documentary items). In part, the narrowing occurred following Noumi not pressing claims in relation to some documents, but in other respects by reason of Mr Macleod not opposing those claims. However, it is different in respect of the arguments that were raised in Mr Macleod’s submissions of 31 October 2023 which asserted six “non-privileged purposes” and five alleged grounds of waiver, many of which by the hearing before me were not pressed or were abandoned. There are some aspects of the six “non-privileged purposes” that Mr Macleod had not necessarily abandoned, but refined and distilled. However, even being generous to the way Mr Macleod subsequently refined his arguments, I am satisfied that the six “non-privileged purposes” were not pressed in the same way in which they were articulated in his submissions of 31 October 2023. Further, Mr Macleod only pressed two of his five arguments on waiver.

53    Mr Macleod’s conduct in seeking to refine and narrow the issues by and during the hearing reflects a commendable approach consistent with the governing principles of civil procedure in this Court: see ss 37M and 37N of the FC Act. The forensic decisions made by Mr Macleod’s legal representatives, and particularly his Counsel, to refine and narrow issues reflect their equally commendable focus upon the real issues in dispute in facilitating the overarching purposes specified in s 37M of the FC Act. Nevertheless, costs were occasioned to Noumi that were wasted. These were costs that, in the result, were wasted or thrown away. As Jagot J observed in Haviv Holdings at [35] (albeit in a different context), “the costs relating to the abandoned claims should not lie where they fall”. Although there her Honour was dealing with abandoned claims, in my view it makes no difference where a party raises substantive arguments and subsequently does not press or abandons them.

54    In my view, Noumi should have the benefit of an order for costs in relation to the arguments that Mr Macleod abandoned or did not press. It is difficult to formulate with any precision an order that would do justice to Noumi in respect of the costs it incurred but wasted in this regard. This requires an impressionistic assessment. Doing my best, I consider that an appropriate order is for Mr Macleod to pay 75% of Noumi’s costs of and incidental to responding to Mr Macleod’s submissions of 31 October 2023 by its submissions and evidence in reply by way of the Affidavits of Ms Turner and Ms John, both dated 22 November 2023. The figure of 75% reflects my assessment of the parts of Mr Macleod’s submissions of 31 October 2023 which were abandoned or not pressed and which occasioned Noumi to respond in its written submissions and evidence in reply. Any disputes about the extent of these costs will be matter for agreement and, if not, taxation: see Haviv Holdings at [41].

ASIC’s position

55    I need to say something about Mr Macleod’s claim that ASIC should pay a portion of his costs. ASIC became involved in the proceedings in circumstances where after the exchange of written submissions as between Noumi and Mr Macleod, it was apparent to me that both of them had made submissions about the proper construction of the Voluntary Disclosure Agreement (VDA, as defined at PJ [47]) between Noumi and ASIC. I invited ASIC to file and serve submissions about this issue, and ASIC accepted that invitation. ASIC’s submissions to the Court primarily addressed the proper construction of the VDA. Consistent with cl 1.2 of the VDA, ASIC did not seek to submit to the Court that disclosure of the PwC Report amounted to waiver of Noumi’s privilege, but otherwise maintained a neutral position. That is unsurprising given that the effect of cl 1 of the VDA is that it is ultimately a matter for the disclosing party to establish to the Court that the documents are privileged. In addition, Information Sheet 165 states that “although the agreement prevents ASIC from asserting that the provision of the information amounts to a waiver of privilege, the agreement does not prevent third parties from asserting that privilege has been waived”.

56    ASIC submitted that in the Principal Judgment, I largely accepted ASIC’s various arguments as to the proper construction of the VDA. That is so. In many respects, ASIC’s contentions as to the proper construction of the VDA were upheld. The basis upon which I found there to have been a waiver focussed upon the application of the inconsistency test in respect of Noumi’s position in the very particular and specific facts of this case. I am not persuaded that ASIC should pay any portion of Mr Macleod’s costs, and the appropriate order should be that ASIC bear its own costs.

ORDERS THAT SHOULD BE MADE TO GIVE EFFECT TO THE PRINCIPAL JUDGMENT

57    Aside from in relation to the Contingent Waiver Issue and costs, the parties were in substantial agreement as to the final orders which should be made. The only other issue on which the parties disagreed was the period of time which should be allowed for production of the materials which I have found in the Principal Judgment and above are liable to production by reason of the waiver of privilege in the PwC Report (the Waiver Document Portions).

58    The parties were initially of the view that the appropriate reference point for any order requiring production of the Waiver Document Portions was 26 April 2024, being 14 days after delivery of the Principal Judgment (factoring in the public holiday for Anzac Day)—that is, the period within which an application for leave to appeal must be filed per r 35.13(a) of the FC Rules. Noumi contended that, subject to any application for leave to appeal or appeal from the Principal Judgment, the Waiver Document Portions should be produced to Mr Macleod within 7 days of 26 April 2024, being 3 May 2024. Mr Macleod contended that, subject to the same contingencies, the Waiver Document Portions should be produced to him within one business day of 26 April 2024, being 29 April 2024. ASIC contended that, again subject to the same contingencies, the Waiver Document Portions should be produced within 14 days of 26 April 2024, being 10 May 2024.

59    At the case management hearing on 22 April 2024, I raised with the parties the fact that the Principal Judgment did not contain substantive orders, but simply required the parties to confer and provide proposed orders and submissions in support of those orders to give effect to my reasons. Thus, as at that hearing, it was my view that there was nothing yet from which to seek leave to appeal or appeal that would set aside any dispositive order I had made. In my view, this rendered the 26 April 2024 date inconsequential. In any event, r 35.13(b) allows the Court to fix an alternative date by which leave to appeal must be filed, and r 1.39 allows the Court to extend a time fixed by the FC Rules or an order of the Court. Accordingly, I indicated to the parties that I would make an order following that case management hearing specifying that time for leave to appeal and to appeal from the Principal Judgment does not commence until I make final orders in these proceedings, which order I made in chambers on 23 April 2024.

60    The only remaining issue was how long a period following the fixing of such a date Noumi should have to disclose the Waiver Document Portions to Mr Macleod. I indicated at the case management hearing on 22 April 2024 that the parties should confer on this issue and come to a sensible agreement on mechanical orders concerning production and timing of production or, in the event that the parties were unable to agree on such orders, to address this issue in their respective submissions on the Contingent Waiver Issue.

61    Following the hearing, the parties informed my chambers that they had reached agreement on a period for production of the Waiver Document Portions of three business days following the expiration of the period allowed for leave to appeal from the Principal Judgment and/or the final orders I will make below. (For abundant clarity, I will note that, pursuant to Order 1 of my orders of 23 April 2024, the time for any application for leave to appeal or appeal will commence from the date that I make the orders referred to in this judgment). These matters having been resolved, I will make orders reflecting the parties’ agreement on the final orders which should be made to give effect to my reasons in the Principal Judgment.

DISPOSITION

62    I will make the orders agreed by the parties with some amendments to reflect the foregoing reasons.

Associate:    

Dated:    14 May 2024