Daniels Corporation International Pty Ltd v Accc

• Jurisdiction: Australia Federal only
• Judge: Gleeson CJ,Gaudron,Gummow,Hayne JJ,McHugh J,Kirby J,Callinan J
• Judgment Date: 07 November 2002
• Neutral Citation: 2002-1107 HCA A,[2002] HCA 49
• Court: High Court
• Docket Number: S27/2002
• Date: 07 November 2002

[2002] HCA 49

HIGH COURT OF AUSTRALIA

Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ

S27/2002

The Daniels Corporation International Pty Ltd & Anor

Appellants

and

Australian Competition and Consumer Commission

Respondent

Representation:

N J Young QC with S E Marks for the appellants (instructed by Meerkin & Apel)

A Robertson SC with J C Sheahan SC for the respondent (instructed by Corrs Chambers Westgarth)

Trade Practices Act 1974 (Cth), s 155.

The Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission

Evidence — Legal professional privilege — Statutory notice to produce documents — Whether statute abrogated legal professional privilege.

Trade practices — Notice to produce documents to Australian Competition and Consumer Commission — Commission investigating whether Trade Practices Act 1974 (Cth) contravened — Whether documents to be produced included those for which legal professional privilege claimed.

ORDER

1. Appeal allowed.

2. Set aside the orders of the Full Court of the Federal Court made 16 March 2001, and in lieu thereof declare that s 155 of the Trade Practices Act 1974 (Cth) does not require the production of documents to which legal professional privilege attaches.

3. Remit matter to the Federal Court to determine what, if any, of the documents specified in the notices are the subject of legal professional privilege.

4. Respondent to pay the appellants' costs of the proceedings in the Full Court and in this Court.

1 Gleeson CJ, Gaudron, Gummow and Hayne JJ. The Australian Competition and Consumer Commission (‘the ACCC’), the respondent to this appeal, served notices on Meerkin & Apel (‘the solicitors’), the second named appellants, requiring the production of documents held by them as a result of their having acted as solicitors for the first named appellant, The Daniels Corporation International Pty Ltd (‘the Corporation’). The notices were served pursuant to s 155 of the Trade Practices Act 1974 (Cth) (‘the Act’).

2 The solicitors produced some but not all of the documents specified in the notices. They and the Corporation claimed that the remaining documents were the subject of legal professional privilege and that s 155 of the Act does not authorise the ACCC to require production of documents to which that privilege attaches.

History of the proceedings

3 To test the correctness of the claim that s 155 does not authorise it to require production of documents to which legal professional privilege attaches, the ACCC commenced proceedings against the Corporation in the Federal Court of Australia seeking, amongst other orders, a declaration that it, the Corporation, was not entitled to refuse to produce documents on the ground of legal professional privilege and, also, an order requiring it to produce specified documents. The solicitors were later joined as respondents to the proceedings and similar orders were sought against them.

4 In the Federal Court, the question whether s 155 of the Act authorises the ACCC to require production of documents to which legal professional privilege attaches was isolated as a preliminary issue and referred to the Full Court for decision. The Full Court held that s 155 did authorise notices requiring the production of such documents 1, relying principally on the decisions of this Court in Pyneboard Pty Ltd v Trade Practices Commission2 and Corporate Affairs Commission (NSW) v Yuill3. In the result, the Full Court declared that the solicitors were ‘not entitled to refuse to comply with … the notices … on the ground of legal professional privilege’ and ordered the Corporation to pay the costs of determining the preliminary issue. Having made those orders, it was

unnecessary for the Federal Court to determine whether or not privilege attached to any of the documents the subject of the notices under s 155 of the Act

Section 155 of the Act

5 Subject to sub-s (2A), which is not presently relevant, s 155(1) provides:

‘if the Commission, the Chairperson or the Deputy Chairperson has reason to believe that a person is capable of furnishing information, producing documents or giving evidence relating to a matter that constitutes, or may constitute, a contravention of this Act, or is relevant to a designated telecommunications matter (as defined by subsection (9)) 4 or is relevant to the making of a decision by the Commission under subsection 93( 3) or (3A) 5, a member of the Commission may, by notice in writing served on that person, require that person:

• (a) to furnish to the Commission, by writing signed by that person or, in the case of a body corporate, by a competent officer of the body corporate, within the time and in the manner specified in the notice, any such information;

• (b) to produce to the Commission, or to a person specified in the notice acting on its behalf, in accordance with the notice, any such documents; or

• (c) to appear before the Commission at a time and place specified in the notice to give any such evidence, either orally or in writing, and produce any such documents.’

6 Section 155(2) of the Act confers power on the ACCC to authorise entry to premises to inspect documents. That power arises in somewhat different circumstances from the power to require the provision of information, the production of documents and the giving of evidence under s 155(1). Again subject to sub-s (2A), s 155(2) provides:

‘if the Commission, the Chairperson or the Deputy Chairperson has reason to believe that a person has engaged or is engaging in conduct that constitutes, or may constitute, a contravention of this Act, Part 20 of the Telecommunications Act 1997 6 or Part 9 of the Telecommunications (Consumer Protection and Service Standards) Act 1999 7, a member of the Commission may, for the purpose of ascertaining by the examination of documents in the possession or control of the person whether the person has engaged or is engaging in that conduct, authorize, by writing signed by the member, a member of the staff assisting the Commission (in this section referred to as an authorized officer) to enter any premises, and to inspect any documents in the possession or under the control of the person and make copies of, or take extracts from, those documents.’

7 The obligations that arise on the service of a notice under ss 155( 1) or (2) and the consequences of the failure to comply with those obligations are specified in ss 155(5), (6), (6A) and (7). As at the date of the notices in issue in this appeal 8, those sub-sections provided:

‘(5) A person shall not:

• (a) refuse or fail to comply with a notice under this section to the extent that the person is capable of complying with it;

• (b) in purported compliance with such a notice, knowingly furnish information or give evidence that is false or misleading; or

• (c) obstruct or hinder an authorized officer acting in pursuance of subsection (2).

(6) The occupier or person in charge of any premises that an authorized officer enters in pursuance of subsection (2) shall provide the authorized officer with all reasonable facilities and assistance for the effective exercise of his or her powers under that subsection.

(6A) A person who contravenes subsection ( 5) or (6) is guilty of an offence punishable on conviction:

• (a) in the case of a person not being a body corporate–by a fine not exceeding $2,000 or imprisonment for 12 months; or

• (b) in the case of a person being a body corporate–by a fine not exceeding $10,000.

(7) A person is not excused from furnishing information or producing or permitting the inspection of a document in pursuance of this section on the ground that the information or document may tend to incriminate the person, but the answer by a person to any question asked in a notice under this section or the furnishing by a person of any information in pursuance of such a notice, or any document produced in pursuance of such a notice or made available to an authorized officer for inspection, is not admissible in evidence against the person:

• (a) in the case of a person not being a body corporate–in any criminal proceedings other than proceedings under this section; or

• (b) in the case of a body corporate–in any criminal proceedings other than proceedings under this Act.’

8 Reference should also be made to sub-s (7A) which, at the relevant time 9, provided:

‘This section does not require a person:

• (a) to give information or evidence that would disclose the contents of a document prepared for the purposes of a meeting of the Cabinet of a State or Territory; or

• (b) to produce or permit inspection of a document prepared for the purposes of a meeting of the Cabinet of a State or Territory; or

• (c) to give information or evidence, or to produce or permit inspection of a document, that would disclose the deliberations of the Cabinet of a State or Territory.’

Legal professional privilege

9 It is now settled that legal professional privilege is a rule of substantive law 10 which may be availed of by a person to resist the giving of information or the production of documents which would reveal communications between a client and his or her lawyer made for the dominant purpose of giving or obtaining legal advice or the provision of legal services, including representation in legal proceedings. It may here be noted that the ‘dominant purpose’ test for legal professional privilege was recently adopted by this Court in Esso Australia Resources Ltd v Federal Commissioner of Taxation11 in place of the ‘sole purpose’ test which had been applied following the decision in Grant v Downs12.

10 Being a rule of substantive law and not merely a rule of evidence, legal professional privilege is not confined to the processes of discovery and

inspection 13 and the giving of evidence in judicial proceedings 14...