Corporate Affairs Commission of New South Wales v Yuill

The applicant, the Corporate Affairs Commission of New South Wales, sought special leave to appeal from a decision of the Court of Appeal of New South Wales concerning the availability of legal professional privilege during an inquiry conducted by an inspector appointed under the Companies Code. The dispute arose when Mr. Yuill, who was required to produce documents and answer questions by the inspector, claimed legal professional privilege. The Supreme Court of New South Wales had declared that privilege was not available, but the Court of Appeal reached a divided conclusion, with a majority holding that privilege was not available for oral statements, though documents might be protected.

The central legal issue before the High Court was whether legal professional privilege was available to a person required to produce documents or answer questions by an inspector appointed under Part VII of the New South Wales Companies Code 1980. This involved determining whether the Code evinced a legislative intention to abrogate the common law rule of legal professional privilege in the context of such investigations.

The applicant argued that the Court of Appeal erred by failing to consider that, at the time the Code was enacted in 1980, it was generally understood that legal professional privilege applied only in judicial or quasi-judicial proceedings. Citing the decision in *Testro v Tait*, the applicant contended that investigations under the Companies Code had previously been held not to be judicial or quasi-judicial. Therefore, the legislature must have intended that privilege would not be available in this context. The applicant submitted that a proper construction of the Code, in light of this understanding, supported the view that privilege was not available.