Background
ASIC brought proceedings against Noumi Limited (formerly Freedom Foods Group, “FFG”) and two of its executives — Rory Macleod and Campbell Nicholas — alleging that at least $20 million of inventory disclosed in FFG’s FY19 and HY20 financial reports could not have been sold and should not have been recorded as an asset, and that Macleod knew or ought to have known this. The case concerns alleged false or misleading financial statements relating to inventory, including Non-nettable inventory and transactions involving lactoferrin invoices. The hearing was scheduled to commence on 9 June 2026 but was postponed to 15 June 2026 to allow time to resolve evidentiary objections.
In the days immediately before the substantive hearing, Jackman J heard argument on the admissibility of several documents and late-filed affidavits. The contested items included two inventory spreadsheets produced to ASIC in the course of its investigation (tabs 834 and 211 of the court book), a lactoferrin-related accounting document (tab 847), a May Inventory Spreadsheet (tab 164), and a series of affidavits and an expert report filed by ASIC in late May and early June 2026 — weeks before trial — to which Macleod objected on the grounds of lateness and unfair prejudice.
Tab 834 was a spreadsheet generated on 16 August 2022 in response to a statutory notice under s 19(2) of the ASIC Act, showing Nettable and Non-nettable inventory figures by location for each month from June 2019 to June 2020. Tab 211 was a large “Current Inventory Status” spreadsheet created on 3 July 2019 and circulated internally at FFG, which ASIC acknowledged contained an erroneous grand total for inventory attributed to an incorrect inclusion of chocolate milk stock at approximately $37.5 million.
The Court’s Holding
Jackman J admitted both tab 834 and tab 211 into evidence without limitation. As to tab 834, the Court held it was relevant under s 55 of the Evidence Act 1995 (Cth) because, despite reflecting data as at August 2022, it was capable of rationally affecting the assessment of what inventory was recorded in FFG’s systems at the end of each month from June 2019 to June 2020. It fell within the business records exception in s 69(2) because the underlying representations were generated from pre-existing data already embedded in FFG’s accounting systems in the ordinary course of business — meaning s 69(3), which excludes documents prepared in contemplation of proceedings, did not apply to the representations themselves even though FFG was aware litigation was likely by that date. No unfair prejudice to Macleod arose given tab 834 had been expressly referenced in ASIC’s pleading and in the first expert report of Ms Oliver filed in December 2023.
Tab 211 was likewise admitted under the business records exception. The Court acknowledged a paucity of evidence about how the spreadsheet was prepared and accepted that the total inventory figure was erroneous, but held these went to weight rather than admissibility. ASIC relied on the document only as evidence of pre-existing recorded data, not as expressing any opinion or inference, so no opinion-rule issue required a formal s 136 limitation. Ample notice had been given of ASIC’s reliance on tab 211 since it was expressly analysed in Ms Oliver’s first report in December 2023. Tabs 164 and 847 were admitted on agreed terms, with s 136 limitations confining their permitted uses as set out in the orders.
However, the Court rejected four items of late-filed evidence tendered by ASIC: Ms Oliver’s second expert report (21 May 2026), Mr Sun’s third affidavit (3 June 2026), paragraphs 5–18 of Mr Singh’s second affidavit (3 June 2026), and paragraphs 9–21 of Ms Shepherd’s second affidavit (3 June 2026). The Court found that this material was served too late to allow Macleod’s legal team — already fully committed to trial preparation involving cross-examination of 16 lay witnesses — to engage forensic accounting and data experts to respond to the new analyses. The late service caused unfair prejudice under s 135 of the Evidence Act, and the evidence was excluded.
Key Takeaways
- The business records exception in s 69 of the Evidence Act 1995 (Cth) can apply to data extracted from a company’s accounting systems and produced to a regulator years after the relevant period, provided the underlying representations were made in the ordinary course of business — the fact that the company was aware proceedings were likely does not automatically engage the s 69(3) exclusion if those who prepared the data did so without reference to the litigation.
- Acknowledged errors in a business record (such as an erroneous inventory total) go to weight rather than admissibility where the document is otherwise within the business records exception and is tendered for a limited, defined purpose.
- Late-filed affidavits and expert reports will be excluded where they deprive the opposing party of a realistic opportunity to obtain responsive expert evidence before trial, even if the opposing legal team is experienced and well-resourced — the question is whether the lateness causes concrete, irremediable prejudice.
- Section 136 of the Evidence Act allows courts to admit evidence with use limitations, enabling nuanced admissibility rulings that protect parties from unfair prejudice without total exclusion.
Why It Matters
This ruling is significant for regulators and corporate defendants alike. It confirms that historical data extracted from enterprise accounting systems in response to compulsory regulatory notices can be tendered as business records even where extraction occurs years after the fact and in the shadow of anticipated litigation, so long as the underlying data-entry representations were made in the ordinary course of business. For ASIC and similar regulators, this supports the evidentiary value of compulsory-process responses in accounting investigations.
The decision also provides a practical warning about trial preparation timelines in complex commercial litigation. The exclusion of Ms Oliver’s second expert report and the late affidavits illustrates that courts will enforce discipline around evidence-filing deadlines even in high-stakes, document-intensive proceedings. Parties who serve significant new expert or factual evidence close to trial risk having it excluded entirely if the opposing side cannot reasonably respond before proceedings commence.