Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission

The Australian Competition and Consumer Commission (ACCC) sought to compel The Daniels Corporation International Pty Ltd (Daniels) and its solicitors to produce documents relevant to an investigation into potential contraventions of the *Trade Practices Act 1974* (Cth). Daniels resisted producing certain documents, asserting legal professional privilege over communications with its solicitors. The Full Court of the Federal Court had previously held that section 155 of the *Trade Practices Act 1974* (Cth) overrode this privilege. The matter proceeded to the High Court of Australia.

The central legal issue before the High Court was whether section 155 of the *Trade Practices Act 1974* (Cth), which empowers the ACCC to obtain information and documents, abrogated the common law right of legal professional privilege. This involved determining whether the statutory language and purpose of section 155 clearly indicated an intention to override this fundamental privilege, or if it should be construed as respecting it in the absence of such clear indication.

The High Court, by majority, reasoned that statutory provisions are not to be construed as abrogating important common law rights, privileges, and immunities unless there are clear words or a necessary implication to that effect. The Court noted that legal professional privilege is a significant common law immunity. While acknowledging that the decision in *Corporate Affairs Commission (NSW) v Yuill* might have suggested a different approach, the majority found that the general principle of preserving common law rights in the absence of clear statutory intent applied. The Court distinguished the privilege against self-incrimination and exposure to penalties, which had been addressed in prior cases like *Pyneboard*, from the distinct nature of legal professional privilege.

The High Court allowed the appeal, setting aside the orders of the Full Court. It declared that section 155 of the *Trade Practices Act 1974* (Cth) does not require the production of documents to which legal professional privilege attaches. The matter was remitted to the Federal Court to determine which, if any, of the documents specified in the notices were subject to legal professional privilege, and the ACCC was ordered to pay Daniels' costs.