Arnotts Ltd v Trade Practices Commission - [1989] FCA 165

Re: ARNOTTS LIMITED and ARNOTT'S BISCUITS LIMITED
And: TRADE PRACTICES COMMISSION
No. G198 of 1989
FED No. 165
Trade Practices
87 ALR 73

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Bowen C.J.(1), Beaumont(1) and Gummow(1) JJ.

CATCHWORDS

Trade Practices - s. 157 of Trade Practices Act 1974 - whether the Court is empowered to refuse to make an order under sub-s. 157 (2) in respect of a document or part of a document, if it is considered that the conditions giving rise to the legal professional privilege of the Trade Practices Commission are satisfied in respect of that document or part of it, and that the privilege is not waived - whether such a power is derived from the common law privilege or the discretion conferred by s. 157 (3).

Trade Practices Act 1974

Federal Court of Australia Act 1976

Trade Practices Commission v Arnotts Limited & Ors. (1989) ATPR 40-930

Waterford v Commonwealth of Australia (1987) 71 ALR 673

Trade Practices Commission v T.N.T. Management Pty. Ltd. (No. 3) (1981) 55 FLR 219

Wellcome Foundation Ltd. v V.R. Laboratories (Aust.) Pty. Ltd. (1980) 42 FLR 266; affd. (1981) 148 CLR 262

Trade Practices Commission v Allied Mills Industries Pty. Limited (Federal Court of Australia, Sheppard J., unrep., 7 May 1980)

Commissioner of Taxation v Citibank Ltd. (Full Court of the Federal Court of Australia, 19 April 1989, unrep.)

Hamilton v Oades (High Court of Australia, 12 April 1989, unrep.)

R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett (1945) 70 CLR 141

Vitzdamm-Jones v Vitzdamm-Jones (1981) 148 CLR 383

Re Tooth & Co. Ltd. (No. 2) (1978) 34 FLR 112

Refrigerated Express Lines (A/asia) Pty. Ltd. v Australian Meat & Live-stock Corporation (1979) 42 FLR 204

R v Deputy Commissioner of Taxation; Ex parte Briggs (1987) 13 FCR 389

HEARING

SYDNEY

#DATE 27:4:1989

Counsel and Solicitors for C.A. Sweeney Q.C. and P. Comans
the Applicants: instructed by Messrs Clayton Utz

Counsel and Solicitors for B.C. Oslington Q.C. and M. Walton
the Respondent: instructed by the Australian

Government Solicitor

ORDER

Question 1 in the case stated be answered as follows:

Q: 1. Is the Court empowered to refuse to make an order under sub-section (2) of s. 157 of the Trade Practices Act 1974 ("the Act") in respect of a document, or part of a document, if it is considered that the conditions giving rise to legal professional privilege are satisfied in respect of the document or part of it, and that the privilege is not waived? A: Yes.

Question 2 in the case stated be answered as follows:

Q: 2. If so, is the Court's power to refuse to order disclosure of the document, or part of it, derived from:

(a) the common law privilege; or

(b) the exercise by the Court of the statutory discretion conferred by sub-section (3) of s. 157; or

(c) some other, and if so, what, source? A: The Court's power to refuse to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1989] FCA 165
Decision Date: 27 APRIL 1989

CaseChat Overview and Summary

Arnotts Ltd initiated legal proceedings against the Trade Practices Commission, seeking clarification on the court's authority to refuse an order for document disclosure under section 157 of the Trade Practices Act 1974. The case was heard and determined in the Federal Court of Australia. Specifically, Arnotts challenged the Commission's assertion of legal professional privilege over certain documents, arguing that the court should order their disclosure despite the privilege claim.

The central legal issues revolved around whether the court had the power to refuse an order for disclosure of a document or part of a document when legal professional privilege was asserted and not waived. Additionally, the court had to determine the source of this power, whether it stemmed from the common law privilege, the statutory discretion provided under section 157(3), or another source entirely. This required an examination of both statutory provisions and common law principles governing legal professional privilege.

In its decision, the court held that the Federal Court does indeed have the authority to refuse an order for disclosure of privileged documents or parts of documents. This power is derived from the statutory discretion conferred by section 157(3) of the Trade Practices Act 1974, rather than the common law privilege. The court emphasized that while legal professional privilege is a substantive right, the Act provides a statutory framework that allows the court to balance this right against the public interest in disclosure during trade practices investigations. Consequently, the court concluded that its discretion under section 157(3) enables it to refuse disclosure orders where privilege is claimed and not waived.

The court made no order as to costs, adhering to the provisions of Order 36 of the Federal Court Rules regarding settlement and entry of orders. This decision clarifies the court's ability to manage claims of legal professional privilege within the context of trade practices investigations, ensuring a balanced approach that respects both the privilege and the objectives of the Act.

Orders

Orders of the court

Question 1 in the case stated be answered as follows:

Q: 1. Is the Court empowered to refuse to make an order under sub-section (2) of s. 157 of the Trade Practices Act 1974 ("the Act") in respect of a document, or part of a document, if it is considered that the conditions giving rise to legal professional privilege are satisfied in respect of the document or part of it, and that the privilege is not waived? A: Yes.

Question 2 in the case stated be answered as follows:

Q: 2. If so, is the Court's power to refuse to order disclosure of the document, or part of it, derived from:

(a) the common law privilege; or

(b) the exercise by the Court of the statutory discretion conferred by sub-section (3) of s. 157; or

(c) some other, and if so, what, source? A: The Court's power to refuse to order disclosure is an exercise by the Court of the statutory discretion conferred by sub-s.

(3) of s. 157 of the Act.

No order as to costs.

Note: Settlement and entry of orders is dealt with by Order 36 of the Federal Court Rules.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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