Woolworths Limited v Fels - [2002] HCA 50

HIGH COURT OF AUSTRALIA
GLEESON CJ,
GAUDRON, McHUGH, GUMMOW, KIRBY, HAYNE AND CALLINAN JJ
Matter No S238/2001
WOOLWORTHS LIMITED  PLAINTIFF
AND
ALLAN HERBERT MILLER FELS & ANOR  DEFENDANTS
Matter No S249/2001
COLES MYER LIMITED & ANOR  PLAINTIFFS
AND
ALLAN HERBERT MILLER FELS & ANOR  DEFENDANTS
Woolworths Limited v Fels
Coles Myer Limited v Fels
[2002] HCA 50
7 November 2002
S238/2001 and S249/2001
ORDER
IN EACH CASE
Question reserved on case stated answered as follows:
Question
Can the production of documents to which legal professional privilege attaches and is maintained be compelled by the Second Defendant pursuant to section 155 of the Trade Practices Act 1974 (Cth)?
Answer
No.
Order as follows:
1. Declare that s 155 of the Trade Practices Act 1974 (Cth) does not require the production of documents to which legal professional privilege attaches.
2.   Dissolve the injunction granted by Gaudron J on 7 November 2001 and continued by the Full Court on 15 February 2002.
3.   Defendants to pay the costs of the plaintiff(s) of the action and the stated case.
Representation:
Matter No S238/2001
S J Gageler SC with P R Whitford for the plaintiff (instructed by Clayton Utz)
J C Sheahan SC with P J Renehan for the defendants (instructed by Australian Government Solicitor)
Matter No S249/2001
S J Gageler SC with P R Whitford for the plaintiffs (instructed by Allens Arthur Robinson)
J C Sheahan SC with P J Renehan for the defendants (instructed by Australian Government Solicitor)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

GLEESON CJ, GAUDRON, GUMMOW AND HAYNE JJ. These matters were heard at the same time as The Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission. In each matter, a case was stated pursuant to s 18 of the Judiciary Act 1903 (Cth) in which the following question was reserved for the consideration of the Full Court:
"Can the production of documents to which legal professional privilege attaches and is maintained be compelled by the Second Defendant pursuant to section 155 of the Trade Practices Act 1974 (Cth)?"
As a result of amendments effected by Sched 2 to the Treasury Legislation Amendment (Application of Criminal Code) Act (No 2) 2001 (Cth), the provisions of s 155 are in a slightly different form from those considered in The Daniels Corporation. However, it is common ground that nothing turns on those amendments. Accordingly, for the reasons given in The Daniels Corporation, in each case the question reserved for the consideration of the Full Court should be answered "No".
At the conclusion of the hearing of these matters, the parties agreed that, if the questions reserved were answered "No", the Court could finally dispose of the matters by dissolving the injunctions previously granted and making a declaration as sought in the Statement of Claim in each case. Accordingly, the following orders should be made in each matter:
1.Declare that s 155…

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: [2002] HCA 50
Decision Date: 7 November 2002

CaseChat Overview and Summary

In *Woolworths Limited v Fels* and *Coles Myer Limited v Fels*, the High Court of Australia considered whether a statutory notice to produce documents issued by the Australian Competition and Consumer Commission (ACCC) under section 155 of the *Trade Practices Act 1974* (Cth) could compel the production of documents to which legal professional privilege attached. The ACCC was investigating alleged contraventions of the Act.

The central legal issue before the High Court was whether the broad powers conferred by section 155 of the *Trade Practices Act* abrogated the common law doctrine of legal professional privilege. The question reserved for the Court was whether the production of documents to which legal professional privilege attaches and is maintained could be compelled by the ACCC pursuant to section 155.

The High Court, by majority, held that section 155 of the *Trade Practices Act* did not abrogate legal professional privilege. The Court reasoned that while section 155 grants extensive powers to the ACCC to obtain information, it does not contain express words or a necessary implication that would override the fundamental common law right of legal professional privilege. The Court emphasised that such a significant abrogation would require clear and unambiguous statutory language. Accordingly, the Court answered the reserved question in the negative.

The High Court declared that section 155 of the *Trade Practices Act* does not require the production of documents to which legal professional privilege attaches. The injunction previously granted was dissolved, and the defendants were ordered to pay the costs of the plaintiffs.

Orders

Orders of the court

IN EACH CASE

Question reserved on case stated answered as follows:

Question

Can the production of documents to which legal professional privilege attaches and is maintained be compelled by the Second Defendant pursuant to section 155 of the Trade Practices Act 1974 (Cth)?

Answer

No.

Order as follows:

1. Declare that s 155 of the Trade Practices Act 1974 (Cth) does not require the production of documents to which legal professional privilege attaches.

2. Dissolve the injunction granted by Gaudron J on 7 November 2001 and continued by the Full Court on 15 February 2002.

3. Defendants to pay the costs of the plaintiff(s) of the action and the stated case.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

GLEESON CJ, GAUDRON, GUMMOW AND HAYNE JJ HUGH J KIRBY J CALLINAN J

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Ratio Decidendi

Legal Principle Established

Established by: GLEESON CJ, GAUDRON, GUMMOW AND HAYNE JJ, HUGH J, KIRBY J, CALLINAN J

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