Case: Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49 ; (2002) 213 CLR 543
Outcome: applied
It is settled that "legal professional privilege is a rule of substantive law which may be availed of by a person to resist the giving of information or the production of documents which would reveal communications between a client or his or her lawyer made for the dominant purpose of giving or obtaining legal advice or the provision of legal services": Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49 ; (2002) 213 CLR 543 at [9] and [11] and the authorities cited. 23 In the absence of a statutory provision to the contrary, legal professional privilege may be availed of to resist the giving of information or the production of documents in accordance with investigatory procedures of the kind contained in s 155 of the Trade Practices Act 1975 (Cth) ("the TPA"): Daniels Corporation [2002] HCA 49 ; 213 CLR 543 at [10] and [11]. Despite differences in language between the TPA and the ASIC Act , no different result ensues. There is no express provision in the ASIC Act abrogating legal professional privilege. Moreover, there is nothing in the ASIC Act supporting the contention that the abrogation of legal professional privilege is a necessary implication: see eg ss 1(1) , 1 (2), 1 (3), Pt 3 and, in particular, ss 68 and 69 . 24 In the course of argument, ASIC appeared to suggest there were qualifications to the general proposition that the ASIC Act did not abrogate legal professional privilege. The qualifications were, first, that the ASIC Act is silent as to whether a person other than a lawyer may refuse to give information on the ground that it would disclose a communication for which the person claims legal privilege. If that observation by ASIC was intended to provide support for a contention that an individual, not a lawyer, could be compelled by ASIC to disclose information for which the individual had a claim for legal professional privilege, then that contention is rejected. It is rejected because it finds no support in the Act and is contrary to authority ( Daniels ). There is no basis for distinguishing between a lawyer and an individual in the context of legal professional privilege. So much is made clear from the express words of s 69 of the ASIC Act . In the circumstances specified (which includes ASIC's powers of investigation, examination and information gathering in Pt 3) , a lawyer may refuse to comply with a requirement to give information or produce a book, where to do so would involve the disclosure of a privileged communication with the lawyer in their capacity as a lawyer " unless ... the person to whom, or by or on behalf of whom, the communication was made consents to the lawyer complying with the requirement" (emphasis added): s 69(2). In other words, consistent with authority, the section proceeds on the premise that the holder of the privilege (being the client regardless of whether the client is an individual or a body corporate) must consent to the disclosure of the privilege it holds. No other party is able to waive the privilege; it is the holder of the privilege (the client) that must act inconsistently with the maintenance of that privilege for privilege to be waived: see Cadbury Schweppes Pty Ltd v Amcor Ltd (2008) 246 ALR 137 at [17]. Any other result is contrary to the fundamental principles summarised in [21] and [22] above. 29 In other words, I accept the contention that although ASIC cannot compel the production of legally privileged communications of a person (ie the ASIC Act does not override or abrogate legal professional privilege), that does not mean that ASIC cannot receive such communications under any circumstances. As ASIC contended, legal professional privilege affords a person immunity from compulsory disclosure of its privileged communication ( Daniels ). That immunity does not prevent receipt by ASIC in the circumstances of the present case of legally privileged information from the examinees and the witnesses where they were not the holder of the privilege. 40 Secondly, equity may restrain use of confidential information improperly obtained , especially where the information is used as a "springboard for a claim or defence in litigation": Cowell v British American Tobacco Australia Services Ltd [2007] VSCA 301 at [15] - [17] . As Emmett J noted in MM , there is nothing to prevent the holder of a claim for privilege making a privilege claim prior to the tendering of evidence against the holder of any information obtained by ASIC in circumstances not giving rise to a waiver: eg ss 76 - 83 of the ASIC Act ; ss 118 and 122 of the Evidence Act 1995 (Cth) and British Coal Corporation v Dennis Rye Ltd (No 2) [1988] 3 All ER 816. Put another way, "the right of the holder of the privilege not to have privileged material used in evidence against him or her [or it]" is not affected by the disclosure of the privileged material by a party within the scope of the privilege but not entitled to control its exercise: MM at [38]. This is a natural consequence of the basic principle that only the holder of the privilege may waive it. Moreover, although not applicable in the present case (because the third party here is a corporation, which has no privilege against self-incrimination: Daniels at [31]), that preservation of privilege extends not only to legal professional privilege but also privilege against self-incrimination because the ASIC Act abrogates privilege against self-incrimination (s 68(1)) and then provides a "use immunity" to the examinee in relation to information obtained in a s 19 examination where the requirements of s 68(2) are satisfied: s 68(3) of the ASIC Act . Interestingly, unlike other Commonwealth legislation, the "use immunity" in the ASIC Act only applies to persons in relation to the making of an oral statement or the signing of a record and not to the production of documents: s 76(1)(d) of the ASIC Act ; see also Privilege in Perspective , ALRC Report No 107 (2007) at Ch 7 and in particular, paras [7.65] [7.69] and [7.103] and [7.104].