Woolworths Limited v Fels

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.