Woolworths Limited v Fels [2002] HCA 50

HIGH COURT OF AUSTRALIA

GLEESON CJ,

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

Matter No S238/2001

WOOLWORTHS LIMITED PLAINTIFF

AND

ALLAN HERBERT MILLER FELS & ANOR DEFENDANTS

Matter No S249/2001

COLES MYER LIMITED & ANOR PLAINTIFFS

AND

ALLAN HERBERT MILLER FELS & ANOR DEFENDANTS

Woolworths Limited v Fels

Coles Myer Limited v Fels

[2002] HCA 50

7 November 2002

S238/2001 and S249/2001

ORDER

IN EACH CASE

Question reserved on case stated answered as follows:

Question

Can the production of documents to which legal professional privilege attaches and is maintained be compelled by the Second Defendant pursuant to section 155 of the Trade Practices Act 1974 (Cth)?

Answer

No.

Order as follows:

1. Declare that s 155 of the Trade Practices Act 1974 (Cth) does not require the production of documents to which legal professional privilege attaches. 2. Dissolve the injunction granted by Gaudron J on 7 November 2001 and continued by the Full Court on 15 February 2002. 3. Defendants to pay the costs of the plaintiff(s) of the action and the stated case.

Representation:

Matter No S238/2001

S J Gageler SC with P R Whitford for the plaintiff (instructed by Clayton Utz)

J C Sheahan SC with P J Renehan for the defendants (instructed by Australian Government Solicitor)

Matter No S249/2001

S J Gageler SC with P R Whitford for the plaintiffs (instructed by Allens Arthur Robinson)

J C Sheahan SC with P J Renehan for the defendants (instructed by Australian Government Solicitor)

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

CATCHWORDS

Woolworths Limited v Fels

Coles Myer Limited v Fels

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.