Daniels Corporation International Pty Ltd & Anor v Austn Competition and Consumer Commission S72/2001 [2002] HCATrans 24 (15 February 2002)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S72 of 2001

B e t w e e n -

THE DANIELS CORPORATION INTERNATIONAL PTY LTD and MEERKIN & APEL (a Firm)

Applicants

and

AUSTRALIAN COMPETITION AND CONSUMER COMMISSION

Respondent

Application for special leave to appeal

Office of the Registry

Sydney No S238 of 2001

B e t w e e n -

WOOLWORTHS LIMITED

Plaintiff

and

ALLAN HERBERT MILLER FELS

First Defendant

AUSTRALIAN COMPETITION & CONSUMER COMMISSION

Second Defendant

Office of the Registry

Sydney No S249 of 2001

B e t w e e n -

COLES MYER LIMITED

First Plaintiff

LIQUORLAND (AUSTRALIA) PTY LTD

Second Plaintiff

and

ALLAN HERBERT MILLER FELS

First Defendant

AUSTRALIAN COMPETITION & CONSUMER COMMISSION

Second Defendant

For mention

GAUDRON J

GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 15 FEBRUARY 2002, AT 11.53 AM

Copyright in the High Court of Australia

___________________________

GAUDRON J: I realise there are some other matters that are running with this, but I thought it might be convenient if we just at this stage dealt with the special leave application by calling on the respondent. I should take the appearances first.

MR N.J. YOUNG, QC: May it please the Court, I appear with MR S.E. MARKS for the applicants. (instructed by Meerkin & Apel)

MR A. ROBERTSON, SC: May it please the Court, I appear with my learned friend, MR J.C. SHEAHAN, SC, for the respondent. (instructed by Corrs Chambers Westgarth)

GAUDRON J: Yes. Now, you will have worked out that we would like to hear from you.

MR ROBERTSON: Yes, I heard that, your Honour. Your Honours, this application raises the question of statutory construction in the context of an administrative inquiry by the respondent, the Competition and Consumer Commission.

GUMMOW J: Does that try to minimise its general significance?

MR ROBERTSON: No, I am just setting out the - well, it is of significance to this extent, your Honour, that it does not have anything to do with legal professional privilege in the context of court proceedings and inquiries and, indeed, although part of what my learned friends say is that if access were taken to documents that would otherwise be privileged, then that privilege would be abrogated permanently, one of the matters that we put in contention is that that is not the consequence either under the general law or by virtue of section 122 of the Evidence Act which maintains the proposition that privilege is not waived where the document or - - -

GUMMOW J: You may ultimately be right in all of this, Mr Robertson. The question is - - -

GAUDRON J: It is a sad argument though if it ultimately depends on the Evidence Act, is it not?

MR ROBERTSON: Can I take your Honours to what is not in dispute to found a submission as to the narrow scope of the issues. Could your Honours turn to page 26, which is part of the judgment of Justice Wilcox in the Full Court of the Federal Court. His Honour, after referring to a number of cases both in this Court and in the Federal Court - - -

GUMMOW J: Sorry, what paragraph, Mr Robertson?

MR ROBERTSON: Paragraph 49 of the judgment.

GUMMOW J: Thank you. Yes, I have it.

MR ROBERTSON: At paragraph 49 his Honour says, "Six general propositions emerge" and, as we understand it, as his Honour says in paragraph 50 - - -

GUMMOW J: Well, at paragraph 51 he comes to the point, does he not?

MR ROBERTSON: Yes. What I was pointing out, your Honour - - -

GUMMOW J: Now, this is an enormously important piece of legislation and people have been debating about that point, about section 155, for years.

MR ROBERTSON: Well, not in the courts they have not.

GUMMOW J: No, that is right.

MR ROBERTSON: And although our learned friends say that there is a publication that says that the then Trade Practice Commission's view was that the privilege was not displaced by section 155, if your Honours - - -

GUMMOW J: That is how I understood it when I was in practice. Now, it may subsequently have changed. All I am saying to you is there is a point in there probably.

MR ROBERTSON: Well, your Honours, the publication in question is reproduced in the applicants' authorities at pages 206-207 and refers not to the question of construction - that is the larger volume. I do not know whether your Honours have that but it reproduces a pamphlet or publication and it refers to a policy - - -

GUMMOW J: What date is this publication, do we know?

MR ROBERTSON: This one is, I think, November 1994. One can see that from page 199.

GUMMOW J: You do not have any anterior version?

MR ROBERTSON: No.

GUMMOW J: Anyway, it does not matter.

MR ROBERTSON: My recollection is that there was not one, your Honour, but - - -

GAUDRON J: Anyway, the policy has changed.

MR ROBERTSON: No. What - - -

GAUDRON J: Well, I am looking - "The Commission's present policy is generally to" - - -

MR ROBERTSON: "- - - is generally to refrain from pressing for documents". I am looking now at the question of construction which, as I understand, my learned friends put. And then, over the page:

The Commission is, nevertheless, prepared to require documents in such circumstances if it thinks it appropriate -

Now, the circumstances in which it thinks it appropriate may have changed. They may have changed as a consequence of this Court's decision in Esso reversing Grant v Downs. But what I wanted to draw your Honours' attention to was what is not in dispute, which is those proposition that Justice Wilcox sets out, that is, that a privilege is a fundamental and general principle of the common law; that Baker v Campbell establishes that it is not limited to judicial and quasi-judicial proceedings; that privilege is not taken to be abrogated in a particular case except by clear words, and so on. The judgments proceeded on this - - -

GAUDRON J: So, what is in issue is what is the better view of section 155, at page 60. That is what is in issue.

MR ROBERTSON: At page 60, your Honour?

GAUDRON J: Sorry, paragraph 60, page 29.

MR ROBERTSON: Yes, in this context - and this reduced to simplest terms, in our respectful submission, was the reasoning of the Full Court. That is that Yuill's Case showed - if there was any dispute about it - that the same approach to whether or not legal professional privilege was displaced, that is, clear words of necessary intendment - the same approach applied to legal professional privilege as to privilege against self-incrimination or privilege against exposure to civil penalties.

Pyneboard had earlier established by reference to this very section, section 155 of the Trade Practices Act, that the privilege against exposure to civil penalties was displaced and therefore that led Justice McHugh, who was with your Honour the presiding Judge in dissent in Yuill's Case, to say - and this is at 172 CLR. It is in the respondent's authorities at the third tab. If your Honours turn to page 351 where, although Justice McHugh joined with your Honour the presiding Judge in holding that the "reasonable excuse" formulation did not displace legal professional privilege, his Honour did distinguish, at point 4 of that page, the position under section 155 of the Trade Practices Act and said:

Unlike s 155 of the Trade Practices Act, therefore, the general terms of s 295 show no implied intention to abolish all relevant common law rights and privileges.

And the Full Court of the Federal Court reached the same conclusion with reference to that passage in his Honour's judgment, that reading Pyneboard and reading Yuill, the consequence was that the privilege was displaced by section 155. So, it is not in dispute in this case - - -

GUMMOW J: Which particular form of words in 155 achieve this result of displacing the privilege?

MR ROBERTSON: The words that were the subject of consideration by their Honours in Pyneboard were primarily sections 155(1) and 155(5). Now, as we understand it, it is not contended by the applicants that either Pyneboard or Yuill's Case was wrongly decided and, in our respectful submission, it therefore follows that applying Pyneboard - - -

GAUDRON J: I dare say it was not so contended below. That is not to say that the position would remain the same if the matter were granted special leave.

MR ROBERTSON: All I am saying, your Honour, is that it is not in the submissions of the applicants.

GUMMOW J: Yuill is an authority that might not be in a state of vigorous good health, I think.

MR ROBERTSON: "Might not be", did your Honour say?

GUMMOW J: In a state of vigorous good health. It is a 3:2 decision.

MR ROBERTSON: That is so, your Honour.

GUMMOW J: It is not a decision of the whole seven Justices.

MR ROBERTSON: No, that is so. So, really for those reasons, as shortly stated as they may be, we submit that the decision of the Full Court of the Federal Court is correct.

GUMMOW J: And there is no reasonable prospect of upsetting it.

MR ROBERTSON: Well, I would adopt some other language, that is that it is not sufficiently doubtful, your Honour, which is a different formulation, no doubt.

GUMMOW J: Yes, all right.

MR ROBERTSON: But if I could ask your Honours to turn to page 82 of the application book just so that your Honours can see what we accept and what we do not accept, plainly there is an issue of importance. I am looking at paragraphs 31 and following. But the respondent does not accept the proposition in 32, for the reasons that I have adverted to, or the proposition in 33, that is because the cases of the Full Federal Courts dealing with taxation, bankruptcy and general corporations proceed by reference to different statutory language and different considerations, as your Honour Justice Gummow will recall from the Compass decision which is heavily relied on by my learned friends. In 34 a proposition is put that, frankly, we cannot deal with, in a sense, because it merely says it is out of step with the administration of legislation in Europe and England and the United States, and we cannot tell whether that is right or not.

GAUDRON J: A lot of this does not matter, does it? It is what the words mean.

MR ROBERTSON: Well, ultimately, that must be so, your Honour, and to the extent that other jurisdictions have different words, what they say is not going to help one way or the other.

GUMMOW J: There is also the factor, is there not, that this matter could have come here anyway, Professor Fels being an officer of the Commonwealth?

MR ROBERTSON: Certainly, your Honour, although that could be - - -

GUMMOW J: It will come here sooner or later at that rate. Looking at the next in the list, probably sooner.

MR ROBERTSON: That is quite so, your Honour, but, unfortunately, perhaps, that could be said about a large number of matters which could be commenced or perhaps are commenced in this Court.

Could I say two things lastly, your Honours. Could I ask your Honours to look at page 68 of the application book which contains a document called "Amended Notice of Appeal". The amendments, as we read them, that is between the time the notice of appeal was drafted and the amended notice of appeal, relate only to an issue of an order of the Full Federal Court that the first applicant pay the respondent's costs. Now, no special leave question in relation to that point is identified on page 74 of the amended summary of argument and no argument is put as to why that might be a special leave point. We submit plainly it is not and that it should not form the part of any grant of special leave your Honours might be minded to make.

GAUDRON J: I do not follow that, I am sorry. I do not follow what you are saying there.

MR ROBERTSON: I am sorry, your Honour. Does your Honour have page 68?

GAUDRON J: Page 68, yes.

MR ROBERTSON: "Amended Notice of Appeal".

GAUDRON J: Yes.

MR ROBERTSON: Your Honour sees the underlined bits?

GAUDRON J: Yes.

MR ROBERTSON: There is a second judgment or reasons for judgment, "28 June", and then your Honour goes down to subparagraph (3).

GAUDRON J: So, you want to keep your costs?

MR ROBERTSON: No, your Honour, I do not want the Court to spend any time on a question of practice and procedure of the Federal - - -

GUMMOW J: You say the amended notice of appeal should not have grounds (13) and (14) on page 72? Is that not what it comes to?

MR ROBERTSON: In effect, yes, your Honour.

GUMMOW J: And that any leave that is granted should be in terms of the notice of appeal excluding (13) and (14)?

GAUDRON J: Yes.

MR ROBERTSON: And excluding, obviously, paragraph 1(3) which is introductory to those grounds.

GUMMOW J: Yes.

MR ROBERTSON: The last point I wanted to raise, your Honours, was that there has been a debate between the parties, I think, as to whether and to what extent your Honours should have regard to a letter that the Law Council of Australia wrote yesterday.

GAUDRON J: We would not look at that at all, would we?

GUMMOW J: I have not looked at it.

GAUDRON J: They did not write to us, did they, because if so we would not have received it.

MR ROBERTSON: As your Honours please. I do not need to say anything more about that. If the Court pleases.

GAUDRON J: Thank you. Mr Young, we are not going to concern ourselves about discretionary matters, are we, of (13) and (14)?

MR YOUNG: No. Can I explain why those paragraphs are there. There was a separate hearing and a separate decision on costs following the first decision. We only wanted to achieve the ordinary situation where, if special leave - - -

GUMMOW J: If you win here, that will have a fallout for costs in the Federal Court, I suppose.

MR YOUNG: Yes. We only wanted to make sure that the ordinary situation would obtain, that is if special leave is granted, this Court can deal with the costs of the proceedings as well as the costs of the appeal.

GUMMOW J: We do that all the time, yes.

GAUDRON J: Yes. Well, we understand that. We presume you will make that clear if it later becomes necessary.

MR YOUNG: That is all, your Honours.

GAUDRON J: What is proposed, Mr Young, is that there be a grant of special leave excluding those two grounds but with leave to you to insert a ground indicating that you appeal against the orders as to costs.

GAUDRON J: Now, before doing any further - would it be convenient if we called on the Woolworths and Coles matters.

MR YOUNG: I do not appear in those matters. Mr Sheahan does.

GAUDRON J: No, no, but you can stay at the Bar table. We will just take the appearances at this stage, Mr Gageler.

MR S.J. GAGELER, SC: If your Honours please, with MR P.R. WHITFORD, I appear for the plaintiff in the Woolworths matter and the plaintiffs in the Coles Myer matter. (instructed by Clayton Utz and Allens Arthur Robinson)

MR J.C. SHEAHAN, SC: If the Court pleases, I appear with my learned friend, MR P.J. RENEHAN, for the defendant in each action. (instructed by the Australian Government Solicitor)

GAUDRON J: You will have just heard that there has been a grant of special leave in the first matter but what is proposed is at this stage to indicate that the matter is a matter, in our view, of some importance which should be dealt with fairly quickly. So, we would propose to give such directions as are necessary as would have the appeal books filed within 28 days of today. Now, is there any difficulty about that?

MR SHEAHAN: Your Honours, we had a notice of motion that was designed to give us the opportunity to challenge claims for privilege, anticipating that there might be some longer delay.

GAUDRON J: No, in the special leave matter I am talking about.

MS SHEAHAN: In the special leave matter. No.

GAUDRON J: Do you need further directions or are you able to get that sorted out between yourselves?

MR YOUNG: We do not need further directions, and we can comply with that direction for appeal books within 28 days.

GAUDRON J: Yes, thank you. Now, in this second matter, it would seem sensible that there be a stated case. Are the parties completely ad idem on the stated case or can they be ad idem within half an hour?

MR GAGELER: They are ad idem and I can hand up a form of stated case.

GAUDRON J: Does it vary in any relevant respect?

MR GAGELER: No, it adopts - - -

GUMMOW J: We had a draft.

MR GAGELER: You had a draft and there were some changes proposed by the defendants. All of those changes have been incorporated.

GAUDRON J: Yes. Well, in that case, I will state that case forthwith, unless there is some objection to that.

MR GAGELER: As your Honour pleases.

MR SHEAHAN: If the Court pleases.

GAUDRON J: Now, the next thing is can you get your case stated books ready within 28 days?

MR GAGELER: Yes.

GAUDRON J: Do you need any further directions? It is not to indicate that the matter will be heard immediately but to get yourself an appropriate place in the list they should be filed within 28 days. There is no problem about that?

MR GAGELER: No problem.

GAUDRON J: The matters will be heard together but we do not expect - - -

GUMMOW J: Duplication.

GAUDRON J: Yes.

GUMMOW J: Excessive duplication.

MR GAGELER: You have a promise on our part that there will not be.

GAUDRON J: Notwithstanding that the matters will be heard together, they should, I take it, be capable of being dealt with in one day?

MR GAGELER: Yes.

MR SHEAHAN: I would think so, yes.

GAUDRON J: Yes. The only thing I think is that the interlocutory relief needs to be extended, does it not?

MR GAGELER: Yes, it would be a variation of order 1 of your Honours' orders in each matter of, I think, 7 November.

GUMMOW J: Where do we find them?

GAUDRON J: Do you continue your undertakings?

MR GAGELER: Continuing the undertakings. It would be sufficient to, I think, vary order 1 to extend the interlocutory injunction until further order.

GUMMOW J: What, until further order?

MR GAGELER: Yes. It is just a variation of the last sentence of order 1.

GAUDRON J: Yes. Well, upon the continuation of the undertakings, the injunctions will be continued until further notice, unless Mr Sheahan wants to talk me out of that.

MR SHEAHAN: No, not to talk your Honours out of that. I am instructed to raise one question though and that is this: although the appeal is going to be brought on expeditiously - - -

GAUDRON J: I did not actually say that. I did say - - -

GUMMOW J: I said you are going to be expeditious.

GAUDRON J: If you are expeditious that will secure you - - -

GUMMOW J: Some merit.

GAUDRON J: Yes.

MR SHEAHAN: Thank you, your Honours. The Commission does wish to test some of the claims for privilege that have been advanced.

GAUDRON J: That may be a matter - - -

GUMMOW J: That would fall out of the stated case resolution, would it not?

MR SHEAHAN: What we were going to ask the Court was that it remit to the Federal Court that aspect of the matter.

GAUDRON J: Well, we will see if there is anything to remit. There may be nothing to remit at the end of the day. You may be successful.

MR SHEAHAN: The difficulty is that it is holding up a very major investigation.

GAUDRON J: I realise that but you may well be successful.

GUMMOW J: You want it remitted in anticipation of some adverse result on the stated case?

MR SHEAHAN: We wish to have it remitted so that we can get on with the investigation. If it turns out at the end of the day that we are successful, then it is certainly right that that expense would have been wasted.

GAUDRON J: What if you are successful?

MR SHEAHAN: If we are successful, then that expense will have been wasted.

GAUDRON J: Yes. It is not just your expense.

MR SHEAHAN: No, your Honour, it is also the expense of Woolworths and Coles Myer.

GAUDRON J: No, no, and it is not just their expense. There are, as you can see if you turn your head around over your shoulder and if you have been here all day, there are a lot of people who want to get their cases on, not just in this Court, in the Federal Court.

MR SHEAHAN: Yes.

GAUDRON J: To the extent that you gain yourself merit by being expeditious, other people are being pushed back and to the extent that you have a remitter of a matter that may never need decision, not only are other people being put back but members of the judiciary are having their time wasted, I think. Now, I suppose there are a number of things you could usefully do in anticipation of defeat and that is to work out what it is that will be contested and speak to Mr Gageler about it, I guess. You could do that at least.

MR SHEAHAN: Thank you.

GAUDRON J: Very well. I should, however, also certify for the attendance of counsel in the Woolworths and Coles matter, should I not?

MR SHEAHAN: Thank you.

GAUDRON J: We will adjourn briefly to reconstitute.

AT 12.16 PM THE MATTERS WERE CONCLUDED