The Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49

HIGH COURT OF AUSTRALIA

GLEESON CJ,

GAUDRON, McHUGH, GUMMOW, KIRBY, HAYNE AND CALLINAN JJ

THE DANIELS CORPORATION INTERNATIONAL

PTY LTD & ANOR APPELLANTS

AND

AUSTRALIAN COMPETITION AND

CONSUMER COMMISSION RESPONDENT

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

[2002] HCA 49

7 November 2002

S27/2002

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.

On appeal from the Federal Court of Australia

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)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

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.

Trade Practices Act 1974 (Cth), s 155.

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.