There is significant awareness of the broad powers of the Australian Competition and Consumer Commission ("ACCC") to compulsorily acquire documents and information as part of its investigative powers under the Trade Practices Act (Cth) ("TPA"). There is perhaps less awareness of the ACCC's obligations to provide documents to those against whom proceedings are commenced which would assist in the defence of their position.
ACCC's obligation to disclose: section 157 TPA
The obligations on the ACCC are perhaps broader when considering the production of privileged documents than the obligations of persons issued with a notice to provide information pursuant to the ACCC's investigative powers under section 155.
Section 157 of the TPA provides that a defendant to proceedings commenced by the ACCC, as well as an applicant for authorisation of anti-competitive conduct, may request the ACCC to provide copies of documents:
- furnished to, or obtained by, the ACCC;
- in connection with the matter to which the application relates;
- which tend to establish the case of the applicant; and
- which are not, documents of the applicant, or documents prepared by an officer or professional adviser of the ACCC.
This statutory right is in addition to the right to obtain discovery1.
Should the ACCC fail to provide documents according to such request the Australian Federal Court may make orders that the ACCC comply, but may refuse to make such an order if it considers it inappropriate, by reason of:
- the disclosure prejudicing any person; or
- for any other reason.
Legal Professional Privilege
It is now clear2 that the ACCC's compulsory powers to acquire documents or other information do not require production of the same where they are subject to legal professional privilege.
On the other hand, it has been held3 that documents, excluding those prepared by officers of the ACCC or its advisers, including legal advisers, that might otherwise attract legal professional privilege, and which are in the hands of the ACCC, are not immune from disclosure.
The Balancing Test
In Arnotts Biscuits Limited v. Trade Practices Commission4, it was held that:
- the intention disclosed by section 157 of the TPA was that an applicant be given a "fair treatment";
- if the documents the subject of the request for production by the ACCC tended to impeach the ACCC's case, they tended to establish the case of the applicant;
- a document which merely suggested some line of inquiry which might be of assistance to an applicant did not answer the description of a document which tended to establish the applicant's case; and
- section 157 did not abrogate the ACCC's right to legal professional privilege. Rather, where a document not created by an officer or adviser of the ACCC, was otherwise the subject of a claim for legal professional privilege, whether or not a Court would authorise its disclosure would depend on the Court's discretion to refuse such order for "any other reason" and one such reason would involve the ACCC demonstrating prejudice arising from disclosure of otherwise privileged documents.
A Practical Example
In Australian Competition and Consumer Commission v. Trading Post Australia Pty Limited  [FCA 1298], the ACCC brought claims against the named respondent and Google Inc in relation to the alleged misleading and deceptive nature of sponsored advertisements appearing on-line.
Trading Post settled the ACCC's claim, admitting liability and agreeing to remedial action. For this purpose correspondence was entered into between Trading Post's legal advisers and the ACCC. Google sought production of such documents to it on the basis, among others, that there might be some material to support the proposition that Google could not be expected to be responsible for the actions of Trading Post beyond Google's control.
The trial judge held, after reviewing the documents, that they were unlikely to establish the case of Google and so fell outside the ambit of the disclosure obligations of the ACCC in section 157.
He further held however that disclosure of correspondence between the ACCC and one defendant in a matter regarding settlement should be refused to a co-defendant because of:
"important interests in encouraging negotiated settlements of disputes, ensuring that parties in such negotiations are open and frank with each other, and ensuring that parties communicate without apprehension that confidential (and partially prejudicial) material may later be made public at the behest of a third party."
While section 157 of the TPA provides a potentially valuable opportunity to obtain documents from the ACCC, otherwise than by way of discovery, to ensure "fairness" in the defence of any proceedings, its enforcement is subject to a broad discretion in the Court to refuse to order production on grounds reflecting its view of public policy.
1 ACCC v. McMahon Services Pty Ltd  FCA 353
2 The Daniels Corporation International Pty Ltd v. ACCC  HCA A9
3 Arnotts Biscuits Limited v. Trade Practices Commission  FCA 135; ACCC v Trading Post Australia Pty Limited  FCA 1298
4 The Trade Practices Commission was the forerunner to the ACCC;  FCA 135
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