In a much anticipated decision, the Full Court of the Federal Court in Sydney today upheld the claim by the Australian Competition and Consumer Commission that its powers under s 155 of the Trade Practices Act 1974 (‘the Act’) to gain access to documents extend to documents which are subject to legal professional privilege.
The decision has significant consequences because the Court determined that a person or company under investigation by the ACCC cannot refuse to provide information to the Commission by relying on legal professional privilege.
The ACCC has always maintained that the proper investigation and effective enforcement of the Act required the powers in section 155 to be interpreted in the way that the full court has in this case. This includes capturing documents that would normally attract legal professional privilege.
Justice Wilcox, with whom Justice Lindgren agreed, said that “Conduct that involves a contravention of the Trade Practices Act, often comprises many separate acts, some of which may be effected through lawyers. Without information about contacts between the person under investigation and that person’s lawyer, it may be impossible for ACCC to see the whole picture”. Similar comments were made by Justice Moore.
Despite the favourable decision, the Chairman of the ACCC, Professor Allan Fels said that there would be no real change in the Commission’s enforcement activities. “The ACCC has rarely sought to override legal professional privilege to seek documents during the course of an investigation. However, this decision means that the ACCC will be able to properly investigate alleged breaches of the Act and determine the seriousness of any breaches without relevant information, documents or evidence being withheld from it under the cloak of legal professional privilege."