Council of the New South Wales Bar Association v Archer - [2008] NSWCA 164

No judgment structure available for this case.

Reported Decision: 72 NSWLP 236

New South Wales

Court of Appeal

CITATION: Council of the New South Wales Bar Association v Archer [2008] NSWCA 164

HEARING DATE(S): 12 May 2008

JUDGMENT DATE:
18 July 2008

JUDGMENT OF: Hodgson JA at 1; Campbell JA at 52; Handley AJA at 72

DECISION: (1) Leave to appeal granted.
(2) Notice of Appeal to be filed within fourteen days.
(3) Appeal allowed.
(4) Set aside the order of the Tribunal disallowing the appellant’s claim to be entitled to withhold from production documents within the range specified in clauses 2 and 4 of the Schedule to the Summons to Produce Documents dated 22 February 2007 addressed to the claimant’s Proper Officer (the Summons).
(5) Set aside the order of the Tribunal requiring the appellant to produce the balance of the documents within the range specified in clauses 2 and 4 of the Schedule to the Summons.
(6) In lieu of the Tribunal’s orders referred to in (4) and (5) above, order that the Summons be dismissed.
(7) Order that the opponent pay the claimant’s costs of the appeal and the application for leave to appeal, and have a Suitor’s Fund certificate if otherwise eligible.

CATCHWORDS: EVIDENCE – Privilege – Waiver – Need for inconsistency between maintenance of privilege and conduct of person entitled to the privilege. - LEGAL PRACTITIONERS – Disciplinary proceedings – Complaints against legal practitioner – Provision in Legal Practitioners Act 1987 concerning the handling of such complaints – Bar Association not compellable to produce documents – Whether protection can be waived – Whether protection was waived.

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997 ss 84, 119
Evidence Act 1995 ss 122, 135
Interpretation Act 1987 s 21(1)
Legal Profession Act 2004 ss 601, 602
Legal Profession Act 1987 ss 171P, 171Q, 171R

CATEGORY: Principal judgment

CASES CITED: Attorney General (Northern Territory) v Maurice (1986) 161 CLR 475
Australian National Airlines Commission v The Commonwealth [1975] HCA 33; (1975) 132 CLR 582
Bayliss v Cassidy (No 2) [2000] 1 Qd R 404
Beneficial Finance Corporation Co Ltd v Conway [1970] VR 321
Butera v Director of Public Prosecutions (Vic) [1987] HCA 58; (1987) 164 CLR 180
Cassidy v Engwirda Construction Company [1967] QWN 16
The Commonwealth v Verwayen [1990] HCA 39; (1990) 170 CLR 394
Electrolux Home Products Pty Ltd v Westside Direct Pty Ltd [2003] FCA 1014
Grant v Southwestern and Co Properties Ltd [1975] Ch 185
Kadian v Richards [2004] NSWSC 382; (2004) 61 NSWLR 222
Lindsay v Health Care Complaints Commission [2005] NSWCA 356
Lyell v Kennedy (No 3) (1884) 27 Ch D 1
Mann v Carnell [1999] HCA 66; 201 CLR 1
Murray v Legal Services Commissioner [1999] NSWCA 70; 46 NSWLR 224
The Ombudsman v Laughton [2005] NSWCA 339
Senior v Holdsworth, ex parte Independent Television News Ltd [1976] QB 23
Singapore Airlines v Sydney Airports Corporation [2004] NSWSC 380
SQMB v Minister for Immigration and Multicultural Affairs [2004] FCA 241; (2004) 205 ALR 392
Standard Chartered Bank of Australia Limited v Antico (1993) 36 NSWLR 87
Telstra Corporation Limited v VT Australasia Pty Limited (1998) 156 ALR 634
Thomason v Municipality of Campbelltown (1939) 39 SR (NSW) 347
Walton v Gardiner (1993) 177 CLR 378
Wentworth v Lloyd (1864) 10 HL Cas 589; 11 ER 1154

TEXTS CITED: Corkhill and Selwyn in “Evolution of the Common Law Principle of ‘Issue Waiver’” (2008) 82 ALJ 338

PARTIES: COUNCIL OF THE NEW SOUTH WALES BAR ASSOCIATION (Claimant/Appellant)
Stephen John ARCHER (Opponent/Respondent)

FILE NUMBER(S): CA 40691/07

COUNSEL: C E ADAMSON SC/ G M GREGG (Claimant/Appellant)
In person (Opponent/Respondent)

SOLICITORS: Hicksons (Claimant/Appellant)
---- (Opponent/Respondent)

LOWER COURT JURISDICTION: Administrative Decisions Tribunal of New South Wales

LOWER COURT FILE NUMBER(S): NSWADT 32019

LOWER COURT JUDICIAL OFFICER: Acting Judge M Chesterman, Deputy President; S Norton SC, Judicial Member; C Bennett, Non Judicial Member

LOWER COURT DATE OF DECISION: 17 September 2007

LOWER COURT MEDIUM NEUTRAL CITATION: Council of the New South Wales Bar Association v Archer (No 9) [2007] NSWADT 214

CA 40691/07
ADT 032019

HODGSON JA
CAMPBELL JA
HANDLEY AJA
18 JULY 2008

COUNCIL OF THE NEW SOUTH WALES BAR ASSOCIATION v Stephen John ARCHER

Headnote

Facts

The claimant, the Council of the NSW Bar Association, brought proceedings in the Administrative Decisions Tribunal against the opponent, Mr Archer, for professional misconduct relating to a failure to pay income tax.

The Tribunal issued a summons to the claimant ordering production of various documents. This included the production of correspondence between Bar Association members and the Australian Tax Office, as well as the minutes of Bar Council meetings, in which reference was made to the opponent.

The claimant produced some documents but withheld others, asserting it was non-compellable to produce these by operation of s 171R of the Legal Profession Act 1987. The opponent applied to the Tribunal for orders that the claimant produce all documents certified in the summons.

The Tribunal rejected the opponent’s application in relation to the Tax Office documents, but ordered that the claimant produce the other documents. The claimant appealed.

Issues on appeal

Issues arising on appeal were:

(1) Whether s 171R is qualified only by the requirements of procedural fairness, which would arise, if at all, at the substantive hearing.

(2) Whether, by some conduct other than actually giving or producing the particular evidence or documents in question, a person can become compellable to give that evidence or produce those documents.

(3) Whether the protection given by s 171R applies to whole documents, or parts of documents.

HELD (allowing the appeal):

( Per Hodgson JA, Campbell JA and Handley AJA agreeing )

(1) Section 171R does not displace the requirement of procedural fairness, and in some circumstances it would be a denial of procedural fairness to make adverse findings where production of documents is denied in reliance on s 171R: Murray v Legal Services Commissioner [1999] NSWCA 70. However, it does not follow that a denial of procedural fairness makes a person compellable to produce documents. Other remedies may be available, such as rejecting evidence under s 135 of the Evidence Act 1995, staying the proceedings, or dismissing the complaint.

(2) A person with the protection of s 171R cannot be compelled to give evidence or produce documents on the basis of an implied waiver of the kind in Attorney General (Northern Territory) v Maurice (1986) 161 CLR 475.

(a) It is not enough that a person is bringing proceedings in which the content of the privileged communications could, as a reasonable possibility, be relevant and of assistance to the other party.

(4) Section 171R does not only apply to whole documents. It can apply to allow redaction of parts of documents.

( Per Campbell JA )

(5) The touchstone for whether a right conferred by a statute is capable of waiver is whether the right is a personal or private right not resting on public policy or expediency: The Commonwealth v Verwayen (1990) 170 CLR 394 at 405. The immunity created by s 171R is not a mere personal right, but is based on public policy. It is therefore not capable of waiver.

( Per Handley AJA )

CA 40691/07
ADT 032019

HODGSON JA
CAMPBELL JA
HANDLEY AJA

18 JULY 2008

COUNCIL OF THE NEW SOUTH WALES BAR ASSOCIATION v Stephen John ARCHER

Judgment

1 HODGSON JA: This application for leave to appeal relates to proceedings brought in the Administrative Decisions Tribunal (the Tribunal) by the claimant, seeking orders against the opponent pursuant to Pt 10 of the Legal Profession Act 1987 (1987 Act), including an order that his name be removed from the Roll of Legal Practitioners.

2 On 22 February 2007, the Tribunal issued a summons under s 84 of the Administrative Decisions Tribunal Act 1997 (ADT Act) addressed to the claimant, ordering production of the following categories of documents:

1. Each application for a practising certificate lodged with the Bar Association by the Respondent between 1 January 1984 and 30 June 2001.

2. All correspondence passing between the Bar Association (or any person on its behalf) and the Barristers Board of Western Australia (or any person on its behalf) between 1 July 1987 and 9 October 2004 concerning or referring to the Respondent.

3. All correspondence passing between the Bar Association (or any person on its behalf) and the Australian Taxation Office (or any person on its behalf) between 1 July 1987 and 9 October 2004 concerning or referring to the Respondent.

(a) the Bar Council;

(b) any committee of the Bar Council;

held between 1 October 2000 and 9 October 2004 that contain any reference to the Respondent.

3 Those categories have been given the labels “certificate applications”, “WA documents”, “ATO documents and “internal documents”.

4 On 21 March 2007 the solicitors for the claimant wrote to the opponent indicating that it had produced documents in response to the summons, but that it had not produced any documents which were non-compellable by operation of s 171R of the 1987 Act.

5 On 5 April 2007, the opponent applied to the Tribunal for orders that the claimant’s claim to be entitled to withhold documents from production by virtue of s 171R be disallowed, that the claimant produce all documents certified in the summons, and that the opponent be permitted to inspect and copy these documents.

6 On 17 September 2007, the Tribunal determined this application, on the basis that the dispute concerned three of the four categories of documents, it apparently being common ground that all documents within the first category had been produced.

7 As regards the ATO documents, the Tribunal rejected the opponent’s application.

8 As regards each of the WA documents and the internal documents, the Tribunal disallowed the claimant’s claim to be entitled to withhold from production documents within each of these categories, ordered the claimant to product “all documents within this range that have not yet been produced in complete form”, and ordered that the opponent be permitted to inspect and copy them (Tribunal judgment pars [104]-[105] and [128]-[129]).

9 The claimant seeks leave to appeal from these orders pursuant to s 119 of the ADT Act, which provides for appeals on questions of law. Leave is necessary because the orders were interlocutory. The application for leave has been heard on the basis that, if leave is granted, the appeal will be determined without any further hearing.

Statutory Provisions

10 Relevant to this application are ss 171P, 171Q, and 171R of the 1987 Act, which provide:

171P Offence: improper disclosure of information

Maximum penalty: 10 penalty units or imprisonment for 6 months, or both.

(2) Subsection (1) does not apply to the disclosure of information by the Commissioner, or a member of the Law Society Council, to the Chief Commissioner of State Revenue.

171Q Protection from liability

171R Certain persons not compellable witnesses

Royal Commissions Act

11 There are provisions to similar effect to s 171Q and s 171R in the Legal Profession Act 2004 (2004 Act) which has replaced the 1987 Act, namely ss 601 and 602 of the 2004 Act. However, it is the 1987 Act that applies to these proceedings.

12 The reference to “this Part” in ss 171P, 171Q and 171R is to Part 10 of the 1987 Act, headed “Complaints and discipline”, which contains provisions concerning the making of complaints against legal practitioners to the Legal Services Commissioner (the Commissioner), and the handling of those complaints by the Commissioner and/or by the Bar Council or the Law Society Council (which are together referred to as the Council), and also with proceedings in the Tribunal concerning such matters.

13 Section 171R was introduced into the 1987 Act by the Legal Profession Reform Act 1993; and in its original form, it had provided that a person referred to in s 171Q was “neither competent nor compellable” to give evidence or produce documents of the type identified. However, a 1996 amendment removes the words “neither competent nor” and substituted the word “not”.

Issues in the proceedings against the opponent.

14 In this application, it is appropriate to have regard to the issues raised in the proceedings against the opponent, and the possible relevance of the documents in question to those issues.

15 Proceedings against the opponent were commenced in the Tribunal by an Information under s 167 of the 1987 Act alleging professional misconduct on the following grounds:

Ground 1

Particulars

Ground 2

Particulars

16 The opponent answered this with a Reply containing the following:

17 The opponent says that the documents sought by the Notice to Produce are relevant to issues raised, in that the opponent will seek to show, through correspondence between the claimant and the Barristers Board of Western Australia, and through minutes of the claimant concerning the opponent, that over a substantial period of time the claimant, knowing of the matters presently alleged against the opponent, did not treat them as amounting to professional misconduct. Accordingly, the opponent says, even though it is a matter for the Court to determine whether the matters proved did amount to professional misconduct, in doing so the Court can have regard to the attitude to these matters displayed by a professional body. Further, the opponent will seek to show that the proceedings were brought against him for no legitimate purpose within the 1987 Act, but for some ulterior purpose.

Murray v Legal Services Commissioner

18 It is common ground that the decision in Murray v Legal Services Commissioner [1999] NSWCA 70; 46 NSWLR 224, is an important authority for the purposes of this application, and it is one which neither side challenges. It is convenient at this stage to set out what was said in that case, in order to understand the different contentions concerning its effect.

19 That case concerned proceedings brought by the Commissioner against Mr Murray claiming that he had been guilty of professional misconduct or unsatisfactory professional conduct. Relevantly to the present application, Mr Murray claimed that the Commissioner had denied him procedural fairness by withholding documents. Sheller JA (with whom Priestley JA and Stein JA agreed) dealt with that contention as follows:

[60] Mr Murray submitted that once the Commissioner had elected to give evidence he could not decide which questions to answer or which documents to produce in reliance on s171R. Counsel relied on R v Adams (1965) VR 563. The Full Court of the Supreme Court of Victoria held that an accused person who had elected, on his trial, to give evidence on oath under s399 of the Crimes Act 1958 (Vic) could be asked and was obliged to answer any question which was relevant to any issue before the Court and any question which might go to his credit and could be compelled to produce relevant documents which were in his custody or under his control.

Attorney General for the Northern Territory v Maurice & Ors

"whether a waiver should be implied depends on whether it would be unfair or misleading to allow a party to refer to or use material and yet assert that that material, or material associated with it, is privileged from production."

At 487-488 Mason and Brennan JJ said:

"An implied waiver occurs when, by reason of some conduct on the privilege holder's part, it becomes unfair to maintain the privilege. The holder of the privilege should not be able to abuse it by using it to create an inaccurate perception of the protected communication. Professor Wigmore explains:

'[W]hen his conduct touches a certain point of disclosure, fairness requires that his privilege shall cease whether he intended that result or not. He cannot be allowed, after disclosing as much as he pleases, to withhold the remainder.' (Wigmore, Evidence in Trials at Common Law (1961), Vol 8, para2327, p636)

In order to ensure that the opposing litigant is not misled by an inaccurate perception of the disclosed communication, fairness will usually require that waiver as to one part of a protected communication should result in waiver as to the rest of the communication on that subject matter: see Greater Atlantic Assurance Co v Home Insurance Co (1981) 1 WLR 529.

Hence, the imputed waiver inquiry is at bottom focused on the fairness of imputing such a waiver."

See also per Deane J at 492-3 and per Dawson J at 497-8.

[62] The six documents production of which was resisted do not appear to me to be related to any material relied upon by the Commissioner in these proceedings, namely his letter of 21 March 1997 dealing with his duty to keep the complainant informed of the course of the investigation and the conversation between Mr Keher and Mr Murray advising Mr Murray that the complaint had been lodged against him and telling him about that complaint. I am not persuaded that the Commissioner's refusal to allow Mr Murray inspection of the six documents gives rise to any unfairness in the conduct of the proceedings before this Court. The six documents are not referred to in any of the material before the Court in the proceedings. Accordingly, assuming, if the Commissioner is properly to administer the Act, (compare s171P(c) of the Act) that he can waive the protection conferred by s171R, he has not waived that protection in respect of the six documents and s171R means that he is not compelled to produce them in these proceedings.

[63] Had there been a document connected by reference or subject matter to Mr Keher's telephone conversation with Mr Murray of 21 February 1997 or the letter sent as the result of it or the terms of the complaint, the subject of the conversation, there would be much to be said for the proposition that as a matter of fairness the Court would not permit the Commissioner on the one hand to rely on the file note and on the other to call in aid s171R to refuse to produce that related or connected material. I do not accept that, simply by calling evidence, the Commissioner waives his right to rely on s171R or should in fairness be required to produce all the other documents in his file. So to hold would ignore the plain language of s171R. It is quite different to say that if the Commissioner wishes to rely upon documents that he cannot be compelled to produce, he should not be permitted to do so in an unfair way by relying on the section not to produce other documents which touch upon the same matter.

[64] No doubt the legislature intended that where the Commissioner has begun proceedings pursuant to the Act his reliance on s171R should be a fair and reasonable reliance which does not interfere with the just and fair hearing of the proceedings he has instituted. There is nothing to suggest that he has acted otherwise in respect of the particular documents the production of which he here resisted. Accordingly, the Court upheld his claim not to produce the documents. For that reason it was unnecessary to say anything about the Commissioner's separate claim to privilege under the Evidence Act for five of the six documents.

Decision of Tribunal

20 The Tribunal held that the considerations of fairness described by Sheller JA in Murray governs the operation of s 171R in proceedings such as these (Tribunal judgment [74]) and applies as from the time the proceedings are commenced (judgment [79]).

21 The Tribunal held that the test for whether a document was of sufficient relevance to warrant production was a very broad one, requiring no more than adjectival relevance; and noted that the claimant had not taken the option to apply to have the summons set aside (judgment [84]-[85]).

22 The Tribunal held that documents that had received attention before the first step falling within Pt 10 of the 1987 Act, namely the claimant’s resolution of 29 August 2002 to make a complaint against the opponent, and that also received further consideration in the course of the activities of the claimant pursuant to Pt 10, must be within the scope of s 171R (judgment [90]).

23 The Tribunal then said this:

91 By virtue of this reasoning, we do not accept Mr Garling’s contention (see [57] above) that by a process of editing or ‘redaction’ a document within the scope of a relevant summons may be severed into (a) one or more parts that need not be produced by virtue of s. 171R, because they contain ‘references to Part 10 considerations’, and (b) one or more other parts that must be produced because they do not contain any such considerations. It seems to us that although there undoubtedly exist grounds (such as informant privilege) that will justify the disclosure of only part of a document, a document must either be entirely within or outside the range specified in s. 171R. We discuss below the implications of the Bar Association having included a number of redacted documents amongst those that it produced.

24 The Tribunal went on to deal separately with the different categories of documents including, relevantly for this appeal, the WA documents and the internal documents.

25 As regards the WA documents, the Tribunal recorded that the claimant had produced a number of such documents, including correspondence between 9 July 2001 and 22 May 2002; and it continued:

100 These documents show that, at least during 2001 and 2002, the Bar Association and the WA Committee (the latter acting on behalf of the Barristers Board of Western Australia) considered it desirable to exchange relevant information regarding the Respondent as it came to hand, in order that both of them might more effectively discharge their responsibilities to the public and the legal profession.

101 Whether or not the content of any further exchanges of information between the Bar Association and the Barristers Board of Western Australia is ultimately relevant to the determination of these professional misconduct proceedings is not significant at this stage. As we pointed out above at [25], the Bar Association has not proceeded with an application that it made on 10 April 2007 for the relevant clause of the Schedule (clause 2) to be struck out. It has implicitly conceded that documents within the range identified by this clause may be of sufficient potential relevance to justify its inclusion in the summons.

102 We note further that, in contrast to the situation in Murray v Legal Services Commissioner (1999) 46 NSWLR 224; [1999] NSWCA 70, the Bar Association has sought to rely on the protection conferred by s. 171R of the LP Act without specifying the documents that it seeks to withhold from production.

Murray

26 As regards the internal documents, the Tribunal said this:

111 The Bar Association has disclosed documents within this category both through the filing of Mr Selth’s affidavit of 13 February 2007 (accompanied by annexures and the exhibited material marked ‘PAS1’) and through production of documents in response to the summons.

112 The material accompanying Mr Selth’s affidavit included the following resolutions by the Bar Council: (a) making the complaint against the Respondent (29 August 2002); (b) determining that the complaint should be dealt with even though it related to alleged conduct occurring more than three years previously (16 December 2002); and (c) determining that the present proceedings should be instituted (31 July 2003). Within the text of a letter to the Respondent dated 26 October 2001, the text of the Council’s resolution on 23 October 2001 cancelling his practising certificate was also set out.

113 As stated above at [22], the internal documents produced in response to clause 4 of the Schedule to the summons comprised minutes of a number of meetings of the Bar Council, its Executive Committee and a Professional Conduct Committee, all bearing dates within the period from 28 February 2001 to 10 October 2001. Almost all of these documents were substantially redacted, in order (as stated in the Bar Association’s submissions) to remove ‘all Part 10 considerations’.

114 As indicated above, Mr Garling argued that the existence of obligations imposed on the Bar Association by rule 25 of the Administrative Decisions Tribunal (Interim) Rules 1998 was sufficient to rebut any argument that disclosure of any or all of the material annexed to Mr Selth’s affidavit or contained in the accompanying exhibit (‘PAS1’) constituted an implied waiver of the protection conferred by s. 171R.

115 We agree with the Respondent, however, that a great deal of this material fell outside the scope of what rule 25 required.

116 This conclusion can be substantiated simply by reference to the dates of many of the documents in PAS1. As appears from the text of the affidavit, pages 4 – 136 of this exhibit (which has 301 pages) contain documents that predate the Bar Council’s resolution of 29 August 2002 making the complaint against the Respondent. Rule 25 requires in subrules (1)(b), (1)(c) and (2) that particulars of investigatory action taken by the informant (including the identity of any investigator) and copies of ‘the reports or other documents relating to the investigation which the informant intends to tender in evidence’ be included in or exhibited to the affidavit under rule 25. But the investigation referred to in the rule is the investigation that s. 148(1) requires to be conducted by the informant ‘into the complaint’. The rule imposes no obligations relating to any investigation conducted before the complaint was made.

117 The remaining provisions of rule 25 – i.e., subrules (1)(a) and (d) – require that in the affidavit the author of the complaint should be identified, that the allegations of professional misconduct or unsatisfactory professional conduct on which the complaint is based should be ‘briefly described’ and that it should be ‘established’ that, at the time of alleged misconduct or unsatisfactory conduct, the respondent was a legal practitioner to whom Part 10 applied.

118 Amongst the documents within PAS1 (i.e., at pages 137 – 301) that are contemporaneous with or postdate the complaint, those of significance in the present context are the minutes recording three resolutions of the Bar Council: i.e., the resolutions making the complaint (29 August 2002), determining that it should be dealt with even though it related to alleged conduct occurring more than three years previously (16 December 2002) and determining that the present proceedings should be instituted (31 July 2003).

119 Inclusion of the first of these sets of minutes in PAS1 may be interpreted as a step taken by the Bar Association in fulfilment of its obligations under subrule (1)(a) of rule 25.

120 As to the second and third of these sets of minutes, it is relevant to note that under Part 10, as interpreted in decisions such as Murray v Legal Services Commissioner (1999) 46 NSWLR 224; [1999] NSWCA 70, the Bar Association is obliged to prove its adherence to a number of procedural requirements (including the basic principle of natural justice) in order to establish that the Tribunal has jurisdiction in these proceedings. On the footing that the Bar Association may be assumed to ‘intend to tender’ these minutes as part of its evidence relating to jurisdiction, they appear to us to fall within the category of ‘other documents relating to the investigation’ defined in subrule (c)(ii).

121 Accordingly, the Bar Association may fairly argue that its disclosure of the minutes of these three resolutions, which fall within the scope of clause 4 of the Schedule to the summons, occurred in fulfilment of specific obligations imposed on it by rule 25 and therefore did not constitute a waiver of the protection afforded to it by s. 171R. This conclusion receives support from authorities discussed later in this judgment, in connection with the Respondent’s application relating to the summons to Mr Robertson.

122 The problem remains for the Bar Association, however, that it cannot maintain this argument with regard to the disclosed minutes that predate the complaint.

123 Furthermore, the Bar Association has proceeded on the assumption that it is entitled under s. 171R to excise from these minutes any material that it considers to be ‘Part 10 material’. For reasons explained above at [91], we do not accept this assumption. As we said in that paragraph, ‘a document must either be entirely within or outside the range specified in s. 171R’.

124 We consider that to disclose part of a document while concealing the rest is an instance of the selective approach to production of documents that Sheller JA in Murray held to be unfair. We do not think that s. 171R can or should be used in this way.

125 It follows, in our opinion, that the Bar Association should not be permitted to invoke s. 171R as a ground for withholding from disclosure the excised text of those minutes, bearing dates within the period from 28 February 2001 to 10 October 2001, that it produced in response to the summons.

126 Earlier in these reasons, at [97], we recorded our conclusion that we should assess this question of fairness separately with respect to each of the three disputed categories of documents. It follows, in our opinion, that because we consider the approach of the Bar Association in producing ‘redacted’ minutes for meetings held in 2001 to have constituted unfair reliance on s. 171R, the Bar Association should be held to have waived, by implication, the protection conferred by this section against being obliged to produce all the documents falling within the category.

Grounds of Appeal

27 The claimant seeks to rely on the following grounds of appeal:

Submissions

28 Ms Adamson SC for the claimant submitted that leave to appeal should be granted, because it was in the public interest to have the effect of s 171R determined; and also in the public interest that the protection afforded by s 171R to persons performing functions in connection with complaints against and discipline of legal professionals should not be wrongly restricted. Ms Adamson referred to a similar formulation in the Ombudsman Act 1974, mentioned but not ruled upon in TheOmbudsman v Laughton [2005] NSWCA 339.

29 Ms Adamson submitted that Murray did not decide that the protection given by s 171R could be waived, but that merely this section did not displace the requirement that respondents to complaints be afforded procedural fairness. She further submitted that considerations of procedural fairness would not require the production of the documents in question in this case, and that the Tribunal erred in assimilating this question to the threshold for determining whether a subpoena had been properly issued. Ms Adamson submitted also that the Tribunal was in error in not permitting “redaction” of documents, that is, in holding that it was the entirety of any document that was either subject to or not subject to the protection of s 171R.

30 The opponent advised the Court that he did not take the point that the claimant was not entitled to cover up parts of the minutes that did not relate to him.

31 He submitted that the Tribunal correctly applied Murray, and that the claimant had plainly waived the protection given by s 171R.

32 He also submitted that, in circumstances where s 171R had only arisen in one case since 1993, its construction could not be said to be a matter of public importance. In the present case, the claimant had not even asserted that there were in fact any documents being withheld, so the Court was being asked to deal with a purely hypothetical question.

Leave

33 There is some force in the opponent’s submission that, in circumstances where the claimant is not making a positive assertion that there are documents being withheld, an appeal would be academic. However, as they stand, the orders of the Tribunal exclude even the masking of parts of documents, which the Court knows has taken place; and the opponent does not suggest that the orders in this respect were justified. Further, in my opinion, s 171R is an important protection to persons engaged in dealing with complaints against legal professionals, and it is important that it not be incorrectly restricted. In those circumstances, in my opinion, it is appropriate to grant leave to appeal.

Parts of documents

34 The Tribunal found that s 171R applies to whole documents, and that “redacting” or masking of parts of documents was not permissible; that is, that the protection given by s 171R either applies or does not apply in relation to whole documents.

35 As noted above, the opponent does not support this view, and in my opinion it is incorrect. It would raise intractable questions as to what constitutes one document and what constitutes more than one document; and it would give rise to extreme inconvenience where documents contained both protected and non-protected material.

36 In s 21(1) of the Interpretation Act 1987, “document” is defined as follows:

document means any record of information, and includes:

37 In my opinion, this definition, which according to s 21(1) applies “in any Act or instrument”, counts strongly against the view that limits the expression to a single piece of paper, or to a number of pieces of paper constituting a single document such as a letter or minutes of a single meeting. It strongly suggests that a reference to a document includes a reference any part of the document (cf cl 8 of Pt 2 of the Dictionary to the Evidence Act 1995). In my opinion, that is the correct view, and the Tribunal’s ruling to the contrary was an error of law.

Can s 171R be waived?

38 It is clear that a person within the protection of s 171R can waive that protection, in the sense that that person can voluntarily give evidence or produce documents affected by s 171R, so long as this is consistent with s 171P. The question is whether, by some conduct other than actually giving the particular evidence in question or producing the particular documents in question, the person can become compellable to give that evidence or produce those documents, pursuant to powers of compulsion such as s 84 of the ADT Act.

39 In my opinion, Murray does not establish that a person can become so compellable. What it does establish is that s 171R does not displace the requirement that, in proceedings before the Tribunal, procedural fairness be afforded to respondents; and that in some circumstances, it would be a denial of procedural fairness to resist production of documents in reliance on s 171R.

40 However, Murray does not say what consequences would follow if the Tribunal reached the view that the Commissioner’s reliance on s 171R did interfere with the just and fair hearing of proceedings instituted by the Commissioner. Remedies other than compulsion to produce the documents could be available. In particular:

Evidence Act

(2) If it were the case that the Commissioner’s conduct was such that the hearing would not be fair, the proceedings could be stayed, certainly by the Supreme Court and possibly by the Tribunal itself. I note that in Lindsay v Health Care Complaints Commission [2005] NSWCA 356, at [73]-[86], Hunt AJA doubted whether the Tribunal could stay its own proceedings; but in my opinion it is not clear that it could not do so, and I note (as did Hunt AJA) that in Walton v Gardiner (1993) 177 CLR 378 at 385 and 400, the High Court noted without demur that the Tribunal constituting under the Medical Practitioners Act 1938 had stayed certain proceedings against a doctor.

(3) The Tribunal could properly take the view that it should not find professional misconduct proved unless it was proved in proceedings in which procedural fairness was afforded; and so, particularly if the Tribunal could not itself stay the proceedings, the Tribunal should dismiss the complaint if the Commissioner’s reliance on s 171R prevented a fair hearing.

41 It is to be noted that s 171R contains no qualification. In that respect, it is different from such provisions as those of the Evidence Act 1995 in relation to client legal privilege, as to which s 122 of the Evidence Act provides as follows:

122 Loss of client legal privilege: consent and related matters

42 It has been held that circumstances in which there is waiver of the kind referred to in Attorney General (Northern Territory) v Maurice (1986) 161 CLR 475 can be ones in which there is consent within s 122(1): Telstra Corporation Limited v VT Australasia Pty Limited (1998) 156 ALR 634; Singapore Airlines v Sydney Airports Corporation [2004] NSWSC 380 at [52]-[55].

43 Because there is no relevant qualification to the protection given by s 171R, in my opinion waiver of the kind referred to in Maurice does not apply so as to subject a person with the protection of s 171R to compulsion in giving evidence or production of documents: any remedy must be found in one or other of the three ways referred to above.

44 There may however be narrower circumstances in which such a person can become subject to compulsion; for example, if such a person gives evidence in chief, and then refuses to answer questions in cross-examination on that evidence. It could be said that, in such a case, the person has voluntarily given evidence, so is not protected from compulsion to give this evidence properly. It is not necessary here to explore the limits of this possibility.

Had protection been waived?

45 Even if I were wrong in the view just expressed, in my opinion the grounds relied on by the Tribunal fell far short of what would be required for waiver based on Maurice.

46 In Mann v Carnell [1999] HCA 66; 201 CLR 1 at [29], Gleeson CJ, Gaudron, Gummow and Callinan JJ explained implied waiver of the kind discussed in Maurice as follows:

[29] ….. What brings about the waiver is the inconsistency, which the courts, where necessary informed by considerations of fairness, perceive, between the conduct of the client and maintenance of the confidentiality; not some overriding principle of fairness operating at large.

47 Previously, in Standard Chartered Bank of Australia Limited v Antico (1993) 36 NSWLR 87 at 93-95, I had discussed in some detail the effect of Maurice and the somewhat similar principle expressed in Thomason v Municipality of Campbelltown (1939) 39 SR (NSW) 347, and the relationship of these principles to the decision of the House of Lords in Wentworth v Lloyd (1864) 10 HL Cas 589; 11 ER 1154:

Turning to the other matter argued, the question of waiver and/or fairness, it seems to me that since Attorney-General for the Northern Territory v Maurice it is clear that fairness is central to the question of whether the conduct of a client is to be taken as waiving legal professional privilege. It also seems to me that, in considering the question of fairness, it is relevant to take into account the principle stated in Wentworth v Lloyd , to the effect that the court cannot draw adverse inferences from the claim of privilege. So it seems convenient to start this consideration by briefly considering what this principle in Wentworth v Lloyd means.

In Wentworth v Lloyd itself, a claim of privilege was made, and the Master of the Rolls, in deciding the case, stated that if the client chose to adopt this course he must be subject to the rule in Armory v Delamirie (1722) 1 Stra 505; 93 ER 664, where keeping back of evidence must be taken most strongly against the person who does so; and the Master of the Rolls said that legal professional privilege was different in this respect from privilege against self-incrimination. The House of Lords dismissed the appeal from the Master of the Rolls on the merits, but Lord Chelmsford, while concurring that the appeal should be dismissed on the merits, very forcefully disapproved of the Master of the Rolls' application of Armory v Delamirie .

Since then the case has been taken as authority against the drawing of any adverse inference from the claim of legal professional privilege, and is also specifically authority against applying Armory v Delamirie or the similar principle in Jones v Dunkel (1959) 101 CLR 298 to such a case. However, it seems to me clear that if there is other evidence from which the court may draw an inference as to the content of legal advice (or as to the commission of an offence in the case of the privilege against self-incrimination), the court may be able to draw that inference on the balance of probabilities in the absence of contrary evidence from the person claiming the privilege. What the court cannot do is to gain extra assistance in drawing that inference from the Armory v Delamirie or Jones v Dunkel principle. A fortiori, the court cannot draw an adverse conclusion if there is no other evidence supporting the conclusion. Most particularly, the court must not draw any adverse inference sub silentio without referring to it.

The fact that no adverse inference can be drawn from the claim of privilege does not mean that the claim can never have an impact on the party's position in a case. It seems to me that it might contribute to clarifying issues, in a way in which I will elaborate after considering the question of waiver and fairness. In Thomason's case (at 358-359; 111), Sir Frederick Jordan appears to suggest that if one of the issues in a case is what advice, if any, a client has received from his or her legal advisers, the client cannot claim legal professional privilege; and he gives as an example of this situation a suit in equity to set aside a transaction on the ground of undue influence.

I am inclined to think that statement is a little too broad. If a party claims to set aside a transaction, on which the party has had legal advice, for undue influence, but makes no assertion whatsoever that there was any inadequacy in the legal advice about the transaction or in the party's relevant legal understanding of the transaction, it seems to me that the mere fact that some other element of undue influence is alleged would not necessarily mean that legal professional privilege is waived. Indeed, the case of Wentworth v Lloyd itself was a case in which W C Wentworth sought to set aside the sale of property on the ground of unfairness, and the successful claim of privilege related to communications between Mr Wentworth and his solicitor concerning this transaction.

I think it would be consistent with Attorney-General for the Northern Territory v Maurice to formulate the principle in Thomason in this way. If a party, by pleadings or evidence, expressly or impliedly makes an assertion about the content of confidential communications between that party and a legal adviser, then fairness to the other party may mean that this assertion has to be taken as a waiver of any privilege attaching to the communication.

Wentworth v Lloyd

48 In my opinion, this exposition is consistent with both Maurice and Mann, subject to the need to look for inconsistency: cf Bayliss v Cassidy (No 2) [2000] 1 Qd R 404; SQMB v Minister for Immigration and Multicultural Affairs [2004] FCA 241; (2004) 205 ALR 392 at [30]-[44], Corkhill and Selwyn, “Evolution of the common law principle of ‘issue waiver’” (2008) 82 ALJ 338. It is not enough to bring about a waiver of client legal privilege that the client is bringing proceedings in which the content of the privileged communications could, as a reasonable possibility, be relevant and of assistance to the other party. For the client to do this is not inconsistent with the maintenance of the privilege, and does not give rise to unfairness of the type in question. What would involve inconsistency and relevant unfairness is the making of express or implied assertions about the content of the privileged communications, while at the same time seeking to maintain the privilege. In this respect, it may be sufficient that the client is making assertions about the client’s state of mind, in circumstances where there were confidential communications likely to have affected that state of mind.

49 If s 171R does have an implied qualification in terms of the principle in Maurice, it could be no wider than this. In the present case, the unfairness relied on by the opponent is that there is a reasonable possibility that the documents in question could assist him, in the way set out in par [17] above, in the case brought against him by the complainant. However, the complainant itself is making no express or implied assertion in the proceedings about the content of these documents, and there is in my opinion no inconsistency between any aspect of the complainant’s conduct of the proceedings and its maintaining the protection of s 171R. Accordingly, there could be no waiver pursuant to the principle in Maurice and Mann.

50 In my opinion, the Tribunal, by approaching the matter on the basis of general considerations of fairness and/or on the basis of what would be relevant for the purposes of upholding a subpoena, made an error of law.

CONCLUSION

51 In my opinion, the errors of the Tribunal that I have identified were errors of law, and the appeal should be allowed. I would propose the following orders:

(2) Notice of Appeal to be filed within fourteen days.

(3) Appeal allowed.

(4) Set aside the order of the Tribunal disallowing the appellant’s claim to be entitled to withhold from production documents within the range specified in clauses 2 and 4 of the Schedule to the Summons to Produce Documents dated 22 February 2007 addressed to the claimant’s Proper Officer (the Summons).

(5) Set aside the order of the Tribunal requiring the appellant to produce the balance of the documents within the range specified in clauses 2 and 4 of the Schedule to the Summons.

(6) In lieu of the Tribunal’s orders referred to in (4) and (5) above, order that the Summons be dismissed.

(7) Order that the opponent pay the claimant’s costs of the appeal and the application for leave to appeal, and have a Suitor’s Fund certificate if otherwise eligible.

52 CAMPBELL JA: I agree with all aspects of the reasons of Hodgson JA, and wish to add only some brief remarks.

Masking Parts of Documents

53 While the definition of “document” in section 21(1) Interpretation Act 1987 is sufficient to make clear that the lack of compellability to “produce documents” that section 171R Legal Profession Act 1987 confers is not to be applied by identifying a “document” as a single piece of paper, or a number of physically connected pieces of paper, there are other routes to the same conclusion.

54 The etymological origin of “document” is the Latin “documentum”, meaning a lesson or an example. Thus, in the origins of the word itself, it is the information conveyed that is the dominant notion, not the physical form in which that information happens to be embodied. The origin is illustrated in the cognate word “documentary” which is these days predominantly an audiovisual means of conveying information.

55 Of course, words can sometimes stray from their linguistic roots, but in this case traces of the ancestry remain in the present day usage. The “My Documents” entity that every user of Windows computing systems will be familiar with does not contain a single piece of paper. Further, the original use of the meaning of “document” as something that conveys information has been recognised in the law. Thus there is authority, not dependent upon any extended definition of "document", that a “document” can be a photograph (Lyell v Kennedy (No 3) (1884) 27 Ch D 1 at 24, 31, 32), a tape recording (Grant v Southwestern and Co Properties Ltd [1975] Ch 185; Cassidy v Engwirda Construction Company [1967] QWN 16; Australian National Airlines Commission v The Commonwealth [1975] HCA 33; (1975) 132 CLR 582 at 594, disapproving Beneficial Finance Corporation Co Ltd v Conway [1970] VR 321; Butera v Director of Public Prosecutions (Vic) [1987] HCA 58; (1987) 164 CLR 180 at 193), a film or video (Senior v Holdsworth, ex parte Independent Television News Ltd [1976] QB 23 at 36, 41) or a computer file or database (Electrolux Home Products Pty Ltd v Westside Direct Pty Ltd [2003] FCA 1014).

56 When equity invented the Bill of Discovery two modes of order were used – orders for production in relation to relevant writing, and orders to answer interrogatories in relation to information that did not necessarily appear in writing. However the objective of both of them was the same – to ensure that information that a litigant had, and that was relevant to the litigation, did not remain secret. Insofar as orders for discovery related to written documents it was possible to seal up those parts of the writing that were not relevant, and that did not need to be disclosed to enable those parts that were relevant to be properly understood: Bray on Discovery, 2nd ed reprint (1885) Legal Books Pty Ltd at 233-236.

57 The context in which section 171R occurs shows that its concern is similarly with the disclosure of information. Section 171P creates a criminal offence that is committed by “a person who discloses information” in certain circumstances. Section 171R addresses itself to one particular means by which information might sometimes be disclosed, through compulsive process in legal proceedings. When its purpose is to restrict the circumstances in which certain types of information can be disclosed by certain types of people, the physical medium in which that information inheres is not important. The expression “or produce documents” in section 171R should be read in a way which facilities the purpose of section 171R. The purpose is facilitated if the lack of compellability to produce a “document” is construed as extending a lack of compellability to produce a part of a piece of writing, when the part in question discloses information of the type to which section 171R relates.

Can Section 171R be Waived?

58 The statutory provision that a person “is not compellable in any legal proceedings … to give evidence or produce documents” in respect of a particular subject matter involves an unusual use of the notion of a person not being “compellable”. A distinction commonly drawn is stated in Cross on Evidence, 7th Aust ed (2004), para [13001]:

“The essential difference between competence and compellability on the one hand, and privilege on the other, is that the two former matters must be resolved before the witness begins to testify. Once the witness has entered the witness box and has been sworn, has affirmed or is permitted by law to give unsworn evidence, the witness must answer all questions put unless excused or unless the refusal to answer is based upon a privilege conferred by law. Competence and compellability therefore attach to the witness and not to the evidence the witness may give.”

59 The lack of compellability that section 171R enacts is, however, a lack of compellability of particular types of person, concerning particular subject matters only. I have difficulty in seeing how that differs in substance from a person having a privilege against giving evidence or producing documents relating to a particular subject matter.

60 A question of whether a person is compellable to give evidence or produce documents will arise only if the person resists giving the evidence or producing the documents. However, once a person takes the point that he or she cannot be compelled to give evidence or produce documents of a type to which section 171R(1) refers, the only express statutory exception that applies to that lack of compellability is the exception contained in section 171R(2). Section 171R(2) says nothing about the provisions of section 171R(1) being ones that can be waived.

61 The type of right the waiver of which was under consideration in Maurice was common law legal professional privilege. When that particular privilege was the creation of the common law, it fell to the common law to define circumstances in which it would, and would not, apply. Waiver, of the type recognised in Maurice, was one such exception created by the common law. A different basis needs to be found if a right or immunity created by statute were to be waived.

62 The case law shows that the facts that a right or immunity is conferred by statute, and that the statute does not explicitly say it can be waived, are not in themselves a sufficient reason to hold that that right or immunity cannot be waived. Frequently statutes create rights or immunities that are intended to form part of the overall body of private law, and the rights and immunities so created can become subject to doctrines or principles emerging from sources outside the statute itself. Waiver is a general law doctrine that, at least sometimes, can apply in this way to a statutory right or immunity. But waiver does not apply to all statutory rights or immunities. Rather, whether a right or immunity created by statute is capable of waiver depends upon the characterisation of the statute.

63 Notwithstanding that there is significant debate about precisely where “waiver” fits into the conceptual apparatus of the legal system (see, eg, The Commonwealth v Verwayen [1990] HCA 39; (1990) 170 CLR 394 at 406-407 per Mason CJ; 421-428 per Brennan J; 451-452, 456-459 per Dawson J; 466-473 per Toohey J; 480-485 per Gaudron J; 491-497 per McHugh J; Kadian v Richards [2004] NSWSC 382; (2004) 61 NSWLR 222 at [68]-[73]), the principles about how to identify those statutory rights that are capable of waiver and those that are not seem settled. In Verwayen at 405 Mason CJ stated the test to be applied:

Admiralty Commissioners v Valverda (Owners)

Lieberman v Morris

Brown v The Queen

64 While the judgment of Mason CJ in Verwayen was a dissenting judgment, other judges who considered the matter in Verwayen agreed that the touchstone for whether a right conferred by statute was capable of waiver was whether the right is a personal or private right not resting on public policy or expediency: 425, 426 per Brennan J; 456 per Dawson J, 486-487 per Gaudron J, 492-496 per McHugh J.

65 Although these principles were stated with reference to statutory rights, and section 171R creates an immunity rather than a right, I see no reason why the same principle should not apply to whether statutory immunities are inherently capable of waiver.

66 It seems to me that the immunity created by section 171R is not a mere personal right, but is based on public policy. The 1987 Act set out a comprehensive scheme for the administration of the legal profession, from admission as a legal practitioner onwards. What follows is by no means an exhaustive account, but gives a sufficient indication of the public importance of the topics with which the Act deals.

67 While some of the criteria for admission as a legal practitioner were left to be established by the Legal Practitioners Admission Board (section 6), section 11 imposed a requirement that:

“A candidate, however qualified in other respects, must not be admitted as a legal practitioner unless the Admission Board is satisfied that the candidate is of good fame and character and is otherwise suitable for admission.”

68 Legal practitioners were required to have practising certificates that were periodically renewed (section 26, 36). Practice as a barrister or solicitor without a current practising certificate was forbidden (section 48B). The Council that issued practising certificates could make them subject to conditions (section 33, 34), and had power to refuse to issue a certificate, or to cancel or suspend a practising certificate (section 37). Grounds on which that latter course could be adopted included that it was in the public interest or the interest of the legal practitioner’s clients that the practising certificate should not be issued or should be cancelled or suspended (section 38A(1)). Practice as a barrister or solicitor was required to be subject to rules created by the respective professional associations (section 38G, 57A–57F). There was provision for review of those rules by public officials, and for the Attorney General to declare such a rule inoperative in some circumstances (section 57GA–57I). Professional indemnity insurance was required as a condition of practice (section 38R, 41). The professional associations were required to report annually to the Attorney General (section 49, 52). There was provision for lay representation on certain committees of the professional associations (section 50, 53). A solicitor's receipt and disbursement of moneys on trust was regulated (section 60-69). A Fidelity Fund was established, from which a person who suffered from a solicitor's failure to account or dishonest default could seek reimbursement (section 70-90D). There was provision for appointment of receivers or managers to firms of solicitors (section 91-114K). The operation of mortgage practices by solicitors was regulated (section 115-122M). A system was set up for the investigation of complaints against legal practitioners, and the imposition of discipline upon them (section 123-171T). Controls were imposed on legal fees and other costs, and provision made for assessment of costs (section 173-208V).

69 Section 171R appears in Part 10 of the Act, the Part dealing with complaints and discipline. That Part sets out an elaborate procedure for the making of complaints against legal practitioners, for the mediation of some complaints, for the investigation of other complaints, and for the Councils of the respective professional associations to decide what if any action to take concerning such complaints. There is provision for proceedings to be brought in the Administrative Decisions Tribunal with respect to a complaint against the legal practitioner. The Tribunal has power, if it is satisfied that the legal practitioner is guilty of professional misconduct or unsatisfactory professional misconduct, to impose any of a wide range of sanctions (section 171C).

70 One can see an overall legislative policy of the Act of seeking to ensure that only people who have and continue to maintain appropriate standards of skill and personal propriety are permitted to practice as legal practitioners, that there is a measure of public accountability and control concerning the operation of the legal profession, and that there are safeguards for members of the public who deal with legal practitioners. The system of dealing with complaints and discipline that is set up by Part 10 of the Act has an important role to play in giving effect to that policy. The various people who are listed in section 171Q(1) all have a role to play in that system. The immunity that those people have under section 171R arises only “in respect of any matter in which the person was involved in the course of the administration of this Part”. It is evident that the immunity that section 171R confers is one that is not conferred for the private benefit of the people who can invoke it. Rather, it is conferred for a public purpose, of enabling the complaints and discipline system for legal practitioners to operate more effectively. When there is this public purpose in conferring the statutory immunity, in my view it is not the type of statutory immunity that is capable of waiver.

71 I agree with the orders proposed by Hodgson JA.

72 HANDLEY AJA: Subject to one qualification I agree with Hodgson JA and Campbell JA, and with the orders proposed by Hodgson JA. The qualification relates to paras [45] to [48] of the Reasons for judgment of Hodgson JA dealing with waiver of the immunity conferred by s 171R of the Legal Profession Act 1987 in the light of the principles governing waiver of legal professional privilege. The current test established by Mann v Carnell (1999) 201 CLR 1, 29 is that of inconsistency. Where the client raises an issue such as undue influence, election, or seeks an extension of the limitation period the client may be making assertions about his or her state of mind based on legal advice. In such a situation, that described by Hodgson JA in para [48] I am inclined to think, in agreement with Hodgson JA, that the raising of the issue will waive the privilege without more. The extensive case law is discussed by Corkhill and Selwyn in “Evolution of the Common Law Principle of ‘Issue Waiver’” in (2008) 82 ALJ 338. Since the question is not squarely raised in this case I will not add further dicta to the extensive case law.

73 The orders proposed by Hodgson JA should be made.

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Citations

Council of the New South Wales Bar Association v Archer [2008] NSWCA 164

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CITATION:	Council of the New South Wales Bar Association v Archer [2008] NSWCA 164
HEARING DATE(S):	12 May 2008
JUDGMENT DATE:	18 July 2008
JUDGMENT OF:	Hodgson JA at 1; Campbell JA at 52; Handley AJA at 72
DECISION:	(1) Leave to appeal granted. (2) Notice of Appeal to be filed within fourteen days. (3) Appeal allowed. (4) Set aside the order of the Tribunal disallowing the appellant’s claim to be entitled to withhold from production documents within the range specified in clauses 2 and 4 of the Schedule to the Summons to Produce Documents dated 22 February 2007 addressed to the claimant’s Proper Officer (the Summons). (5) Set aside the order of the Tribunal requiring the appellant to produce the balance of the documents within the range specified in clauses 2 and 4 of the Schedule to the Summons. (6) In lieu of the Tribunal’s orders referred to in (4) and (5) above, order that the Summons be dismissed. (7) Order that the opponent pay the claimant’s costs of the appeal and the application for leave to appeal, and have a Suitor’s Fund certificate if otherwise eligible.
CATCHWORDS:	EVIDENCE – Privilege – Waiver – Need for inconsistency between maintenance of privilege and conduct of person entitled to the privilege. - LEGAL PRACTITIONERS – Disciplinary proceedings – Complaints against legal practitioner – Provision in Legal Practitioners Act 1987 concerning the handling of such complaints – Bar Association not compellable to produce documents – Whether protection can be waived – Whether protection was waived.
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 ss 84, 119 Evidence Act 1995 ss 122, 135 Interpretation Act 1987 s 21(1) Legal Profession Act 2004 ss 601, 602 Legal Profession Act 1987 ss 171P, 171Q, 171R
CATEGORY:	Principal judgment
CASES CITED:	Attorney General (Northern Territory) v Maurice (1986) 161 CLR 475 Australian National Airlines Commission v The Commonwealth [1975] HCA 33; (1975) 132 CLR 582 Bayliss v Cassidy (No 2) [2000] 1 Qd R 404 Beneficial Finance Corporation Co Ltd v Conway [1970] VR 321 Butera v Director of Public Prosecutions (Vic) [1987] HCA 58; (1987) 164 CLR 180 Cassidy v Engwirda Construction Company [1967] QWN 16 The Commonwealth v Verwayen [1990] HCA 39; (1990) 170 CLR 394 Electrolux Home Products Pty Ltd v Westside Direct Pty Ltd [2003] FCA 1014 Grant v Southwestern and Co Properties Ltd [1975] Ch 185 Kadian v Richards [2004] NSWSC 382; (2004) 61 NSWLR 222 Lindsay v Health Care Complaints Commission [2005] NSWCA 356 Lyell v Kennedy (No 3) (1884) 27 Ch D 1 Mann v Carnell [1999] HCA 66; 201 CLR 1 Murray v Legal Services Commissioner [1999] NSWCA 70; 46 NSWLR 224 The Ombudsman v Laughton [2005] NSWCA 339 Senior v Holdsworth, ex parte Independent Television News Ltd [1976] QB 23 Singapore Airlines v Sydney Airports Corporation [2004] NSWSC 380 SQMB v Minister for Immigration and Multicultural Affairs [2004] FCA 241; (2004) 205 ALR 392 Standard Chartered Bank of Australia Limited v Antico (1993) 36 NSWLR 87 Telstra Corporation Limited v VT Australasia Pty Limited (1998) 156 ALR 634 Thomason v Municipality of Campbelltown (1939) 39 SR (NSW) 347 Walton v Gardiner (1993) 177 CLR 378 Wentworth v Lloyd (1864) 10 HL Cas 589; 11 ER 1154
TEXTS CITED:	Corkhill and Selwyn in “Evolution of the Common Law Principle of ‘Issue Waiver’” (2008) 82 ALJ 338
PARTIES:	COUNCIL OF THE NEW SOUTH WALES BAR ASSOCIATION (Claimant/Appellant) Stephen John ARCHER (Opponent/Respondent)
FILE NUMBER(S):	CA 40691/07
COUNSEL:	C E ADAMSON SC/ G M GREGG (Claimant/Appellant) In person (Opponent/Respondent)
SOLICITORS:	Hicksons (Claimant/Appellant) ---- (Opponent/Respondent)
LOWER COURT JURISDICTION:	Administrative Decisions Tribunal of New South Wales
LOWER COURT FILE NUMBER(S):	NSWADT 32019
LOWER COURT JUDICIAL OFFICER:	Acting Judge M Chesterman, Deputy President; S Norton SC, Judicial Member; C Bennett, Non Judicial Member
LOWER COURT DATE OF DECISION:	17 September 2007
LOWER COURT MEDIUM NEUTRAL CITATION:	Council of the New South Wales Bar Association v Archer (No 9) [2007] NSWADT 214