Corporate affairs Commission (NSW) v Yuill

HIGH COURT OF AUSTRALIA

Brennan, Dawson, Toohey, Gaudron and McHugh JJ.

CORPORATE AFFAIRS COMMISSION (N.S.W.) v. YUILL

(1991) 172 CLR 319

27 June 1991

Companies

Companies—Investigation—Powers of investigator—To require production of documents—Legal professional privilege—Whether available—Whether excluded by statute—Reasonable excuse for failure to produce—Companies (New South Wales) Code, ss. 295(1), 296(7), 299(2), 308.

Decisions

BRENNAN J. In O'Reilly v. State Bank of Victoria Commissioners (1983) 153 CLR 1, 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 (1983) 153 CLR 52, at pp 90,96-97,117-118,123, 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.

2. Statutory construction has often been described as a search for the intention of Parliament but Lord Reid's description in Black-Clawson Ltd. v. Papierwerke AG. (1975) AC 591, at p 613, is more accurate:
"We often say that we are looking for the intention of
Parliament, but that is not quite accurate. We are seeking the meaning of the words which Parliament used. We are seeking not what Parliament meant but the true meaning of what they said." However, as Lord Simon of Glaisdale explained in that case (at pp 645-646):