Daniels Corporation International Pty Ltd v ACCC

Facts

The Australian Competition and Consumer Commission issued notices under s 155 of the Trade Practices Act 1974 (Cth) requiring Daniels Corporation International Pty Ltd and a related company to produce documents and provide information. The companies claimed that certain documents were protected by legal professional privilege. The Full Federal Court held that s 155 abrogated legal professional privilege by necessary implication.

Issues

1. Whether s 155 of the Trade Practices Act 1974 (Cth) abrogated legal professional privilege, either expressly or by necessary implication. 2. Whether legal professional privilege is a common law right requiring clear and unambiguous statutory language to abrogate.

Holding

The High Court unanimously held that s 155 of the Trade Practices Act 1974 (Cth) did not abrogate legal professional privilege, because the provision did not do so in express terms or by necessary implication, and the privilege could not be overridden by implication alone.

Ratio decidendi

Legal professional privilege is a fundamental common law right of such importance that it will not be taken to be abrogated or curtailed by a statute unless the legislature does so by express words or by necessary implication; it is insufficient that abrogation would be a reasonable or even compelling inference from the statutory text.

Obiter dicta

Members of the Court observed that legal professional privilege is not a mere rule of evidence but a substantive common law right, and that its rationale — protecting the confidentiality of communications between lawyer and client to facilitate the due administration of justice — gives it a status analogous to other fundamental rights that resist implied statutory abrogation. McHugh J noted the distinction between the privilege and public interest immunity.

Significance

Daniels Corporation is the leading Australian authority confirming that legal professional privilege is a fundamental common law right that can only be abrogated by clear and unambiguous statutory language, and it has been consistently applied by Australian courts when construing compulsory production regimes and coercive investigative powers.

Key authorities

• Baker v Campbell Baker v Campbell (1983) 153 CLR 52applied
• Propend Finance Pty Ltd v Sing Propend Finance Pty Ltd v Sing (1997) 188 CLR 501applied
• Environment Protection Authority v Caltex Refining Co Pty Ltd Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477considered
• Jurisdiction of Courts (Cross-vesting) Act Case (Re Wakim; Ex parte McNally) Re Wakim; Ex parte McNally (1999) 198 CLR 511cited
• R v Derby Magistrates' Court; Ex parte B R v Derby Magistrates' Court; Ex parte B [1996] AC 487considered