Corporate Affairs Commission (NSW) v Yuill [1991] HCA 28

High Court of Australia Brennan, Dawson, Toohey, Gaudron and McHugh JJ. Corporate Affairs Commission (NSW) v Yuill [1991] HCA 28

ORDER Appeal allowed with costs. Set aside the orders and declarations of the New South Wales Court of Appeal except so far as it was ordered that the appellant (the respondent in the Court of Appeal) pay the costs of the respondents (the appellants in the Court of Appeal) of the appeal before that Court and in lieu thereof order that the appeal to that Court be dismissed. Leave to the appellant and the respondents within fourteen days to apply in writing for such further order as it or they may be advised as to the production of the envelopes of documents returned to the respondents pursuatnt to the order of the Court of Appeal.

Cur. adv. vult.

The following written judgments were delivered:—

June 27 Brennan J.

In O'Reilly v. State Bank of Victoria Commissioners [16] , this Court held that legal professional privilege is limited to judicial and quasi-judicial proceedings and therefore did not qualify the obligation to comply with a notice issued under s. 264 of the Income Tax Assessment Act 1936 Cth by the Commissioner requiring a person to attend and give evidence and to produce books relating to any person's income or assessment. Then, in Baker v. Campbell [1] , this Court held that the power of a police officer executing a search warrant issued under s. 10 of the Crimes Act 1914 Cth is restricted by legal professional privilege. The Court by majority overruled the proposition that legal professional privilege is limited to judicial and quasi-judicial proceedings, holding that a statute should be construed as preserving a right to legal professional privilege unless the privilege is abrogated by express words or necessary intendment. The change in the law of this country which was effected by Baker v. Campbell raises two questions in relation to the construction of ss. 295 and 296(2) of the Companies (New South Wales) Code ("the Code"). Section 295 confers on an inspector power to require an officer of a corporation whose affairs are under investigation to produce books relating to its affairs and to appear for examination and to answer questions; s. 296(2) prohibits a refusal or failure to comply with such a requirement "without reasonable excuse". Should ss. 295 and 296(2) be construed in the light of the law as declared in Baker v. Campbell or in the light of the law as understood when the Code came into force on 1 July 1982 and as expressed in O'Reilly v. State Bank of Victoria Commissioners? And, if ss. 295 and 296(2) should be construed in the light of the law as declared in Baker v. Campbell, does the Code necessarily intend to abrogate legal professional privilege? The circumstances in which these questions arise and the relevant statutory context of ss. 295 and 296(2) of the Code are set out by Dawson J. and I shall not repeat them.