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

FEDERAL COURT OF AUSTRALIA

Australian Securities and Investments Commission v Noumi (No 2) [2024] FCA 495 File number: NSD 163 of 2023

Judgment of: SHARIFF J

Date of judgment: 14 May 2024

Catchwords: EVIDENCE – where finding in Principal Judgment (PJ) that legal professional privilege applies to Contested Documents including investigation report – where finding in PJ as to waiver of privilege in investigation report and associated documents – where issue raised following delivery of PJ as to whether privilege established and waived in three associated documents – where final orders disposing of application had not been made so open to Court to re-consider or further consider waiver issue – finding that portions of the three documents privileged on separate basis to investigation report such that waiver of privilege in investigation report did not result in waiver of privilege in those portions – final orders disposing of privilege dispute made largely by consent COSTS – where first and second defendants each enjoyed a degree of success and failure in PJ – where first defendant succeeded in establishing privilege but failed in resisting finding of waiver of privilege in respect of investigation report and certain associated documents – finding that neither party could be characterised as ultimate winner – finding that each party should bear its own costs subject to an exception – where second defendant reformulated or did not press arguments raised in submissions at hearing – finding that second defendant should pay 75% of costs incurred by first defendant in responding to arguments reformulated or not pressed

Legislation: Federal Court of Australia Act 1973 (Cth) ss 37M, 37N, 43(2) Federal Court Rules 2011 (Cth) rr 1.39, 35.13(a), 35.13(b), 40.04