Case: Kotan Holdings Pty Limited v Trade Practices Commission (1991) 30 FCR 511
Outcome: discussed
The ACCC contends that there is no legitimate forensic purpose to support the production of these documents. The essential reason for this is that the ACCC submits that the only relevant decision in relation to the attack upon the s 155 notice is the decision of the ACCC itself; decisions of officers or staff cannot be decisions of the ACCC to issue the notice. The ACCC relies upon a decision of a Full Court in Kotan Holdings Pty Limited v Trade Practices Commission (1991) 30 FCR 511. 14 The ACCC also contends that even if there is a legitimate forensic purpose in the production of the documents, certain redacted portions of them are subject to a claim for legal professional privilege. One portion is also said, in the alternative, to be the subject of a claim for public interest immunity. 38 Kotan , on which counsel for the ACCC relied, was an appeal from an order of a single judge striking out a statement of claim seeking relief against s 155 notices issued by the Chairman of the Trade Practices Commission. 39 Crucial to the decision of the Court, and to the ACCC's argument in the present case, were the terms of [16] of the statement of claim. It pleaded that on a date unknown to the applicants: (i) the Commission; (ii) the officers of the Commission having the conduct of the matter; (iii) the solicitor acting for the Commission; had decided that proceedings should be instituted. 40 Davies and Foster JJ said at 516 that they accepted that it may be arguable that the power to issue a s 155 Notice ceases when the Commission has formally resolved that legal proceedings be instituted. However, they said that this was not pleaded in [16] of the statement of claim. Lockhart J observed at 522 that the only relevant decision could be that of the Commission itself, so that the allegations that officers of the Commission and the solicitor had decided to institute proceedings could not stand. 41 These were statements of a Full Court and, of course, I accept them as binding, authoritative and correct. But they were made in relation to the pleading that was in issue before their Honours. In my view, their Honours' remarks on this topic, though no doubt central to the question at the final hearing, do not assist the ACCC on the question of the Notice to Produce. 42 What [8] of KAL's statement of issues leaves open for determination on the final hearing, is who, in the present case, comprised the Commission. In this respect, [8] of the statement is in different terms from [16] of the statement of claim in Kotan where the pleading specifically referred to persons who could not have constituted the Commission for the purpose of the decision to issue the s 155 notice. 45 This approach is consistent with that which was adopted by Mansfield J in Australian Competition and Consumer Commission v Rural Press Limited [2000] FCA 66 ; (2000) 96 FCR 389 at [37] [38]. His Honour accepted that the effect of the decision by the judges in Kotan is that the question of whether the exercise of the power is for an improper purpose is to be determined by a consideration of all the circumstances. 46 The precise limits of the power to issue a s 155 notice were left open in Kotan. Davies and Foster JJ accepted that it was arguable that the power ceases when the Commission has formally resolved that legal proceedings be instituted (at 516). Lockhart J at 521 was of the view that the Commission's power to issue a s 155 notice does not cease and is not abused merely because the Commission has made a decision to commence proceedings. 47 The documents required by [5] of the Notice to Produce are documents created by senior officers of the ACCC. They go to the questions raised in [8] of the Statement of Issues and to the questions of purpose raised by the other paragraphs set out above. 48 I reject the submission that they lack a legitimate forensic purpose.