Council of the New South Wales Bar Association v Archer (No 3)

[2004] NSWADT 232

CITATION:	Council of the New South Wales Bar Association v Archer (no.3) [2004] NSWADT 232 revised - 20/10/2004
DIVISION:	Legal Services Division
PARTIES:	APPLICANT Council of the New South Wales Bar Association RESPONDENT Stephen John Archer THIRD PARTY Sarah Anne Archer
FILE NUMBER:	032019
HEARING DATES:	21/09/2004
SUBMISSIONS CLOSED:	09/21/2004
DATE OF DECISION:	10/13/2004
BEFORE:	Chesterman M - ADCJ (Deputy President); Norton S SC - Judicial Member; Bennett C - Non Judicial Member
APPLICATION:	Summonses - applications to set aside
MATTER FOR DECISION:	Preliminary matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Family Law Act 1975 (Cth) Family Law Amendment Act 1987 (Cth) Taxation Administration Act 1953 (Cth)
CASES CITED:	Arhill Pty Ltd v General Terminal Co Pty Ltd (1991) 23 NSWLR 545 Commissioner for Railways v Small (1938) 38 SR (NSW) 564 Council of the New South Wales Bar Association v Archer (No 2) [2004] NSWADT 78 Finnie v Dalglish [1982] 1 NSWLR 400 New South Wales Bar Association v Archer [2004] NSWADT 38 R v Wilkey, ex parte Cooke [1991] 2 Qd R 447 Southern Pacific Hotel Service Inc v Southern Pacific Hotel Corporation [1984] 1 NSWLR 710 Trade Practices Commission v Arnotts Ltd (1989) 88 ALR 90 Walsh v Law Society of New South Wales (1999) 198 CLR 73 Wardell v New South Wales Bar Association [2002] NSWSC 548
REPRESENTATION:	APPLICANT M McCulloch, barrister RESPONDENT In person THIRD PARTY J Ireland QC
ORDERS:	1. The application by Sarah Anne Archer for an order setting aside the summons dated 5 March 2004 addressed to her should be allowed in part, to the extent that clauses 1.1, 1.2, 1.4, 1.5, 1.6, 1.8, 1.9 and 1.10 of the schedule to the summons should be struck out; 2. No order is made on the application by the Respondent for an order setting aside the summons addressed to Sarah Anne Archer; 3. The application by the Respondent for an order setting aside the summons addressed to Barrington Partners is dismissed; 4. The Respondent to have first access to the documents produced by Barrington Partners, in order to raise any objections that he may have to the granting of access to specific documents to the Applicant. This grant of first access is to be exercised within seven days of the date of these reasons. The Applicant may then have access to the produced documents, except any document in respect of which the Respondent has objected. Grants of access are to include permission to uplift for not more than 48 hours for the purpose of copying. Any objection to access to a document is to be listed for hearing if necessary; 5. The application by the Respondent for an order setting aside the summons addressed to the Registrar of the Local Court, Newcastle is allowed; 6. Within 28 days of the date of this decision, Sarah Anne Archer may file and serve an application for costs, with supporting submissions. The Applicant will then have a further 28 days to file opposing submissions. In the absence of a request by either party for a hearing, the matter should then be resolved by a decision ‘on the papers’, under s 76 of the Administrative Decisions Tribunal Act 1977; 7. The costs of the applications made by the Respondent are reserved; 8. The matter is set down for further directions at 9.30 a.m. on 19 October 2004

The Information presented against the Respondent

1 On 9 October 2003, the Council of the Bar Association of New South Wales, as Applicant, filed in the Tribunal an Information containing two complaints under Part 10 of the Legal Profession Act 1987 (‘the Act’) against Stephen John Archer, the Respondent.

2 The Applicant alleges that the Respondent, a legal practitioner within the meaning of s 128 of the Act, has been guilty of professional misconduct. In the Second Schedule to the Information, it requests the Tribunal (a) to find to this effect; (b) to find also that he is not a fit and proper person to remain on the Roll of Legal Practitioners; and (c) to order that his name be removed from the Roll or, in the alternative, to make an order under any one or more of sub-paragraphs (b), (c), (d), (e) or (f) of sub-section 171C(1) of the Act.

3 The two grounds on which the Applicant seeks a finding of professional misconduct are set out in the First Schedule to the Information. They are as follows:-

1. Stephen John Archer failed to discharge his legal and civic obligation to pay income tax for the years ended 30 June 1988 to 30 June 2002, adequately or at all.

2. Stephen John Archer failed to make provision, or any adequate provision from income he had received, for the payment of income tax for the years ended 30 June 1988 to 30 June 2002.

4 In the Particulars to Ground 1, reference is made to the making of two sequestration orders against the estate of the Respondent, dated respectively 18 December 1991 and 21 March 2002. It is stated that each of these was made following the presentation of a creditor’s petition by the Deputy Commissioner of Taxation. The Particulars state also that on 7 April 1997 the Respondent was made bankrupt on his own petition, with the Deputy Commissioner of Taxation as his most substantial creditor.

5 The Particulars to Ground 2 set out four matters in the following terms:-

(a) Stephen John Archer, having entered into an agreement with his wife on 29 March 1988 which was registered under the Family Law Act 1975 (“the Agreement”), chose to make payments to his wife in purported performance of the Agreement, in circumstances where, had he approached the Family Court for an order to vary the Agreement, the Agreement would have been varied such that he could have, had he chose to do so, met his obligations under the Agreement and discharged his legal and civic obligations to pay tax.

(b) Stephen John Archer chose not to approach the Family Court to vary the Agreement, although he knew that he could not, or that it was unlikely that he would be able to, comply both with the Agreement and with his legal and civic obligation to pay tax.

(c) Stephen John Archer chose to incur debts in respect of goods and services and other items for his own benefit and that of his family and associates and to discharge those debts in preference to the debt which arose in favour of the Australian Taxation Office by reason of assessments issued to him from time to time, following filing of income tax returns by him.

(d) Stephen John Archer preferred to pay debts other than tax debts in circumstances where he knew that, irrespective of whether he paid his tax debt, he would continue to enjoy the benefits available to the public as a result of the expenditure of public funds, whereas if he were not to pay other debts, his standard of living would be adversely affected.

The Reply filed by the Respondent

6 In his Reply, filed on 30 October 2003, the Respondent admitted in relation to Ground 1 that in some of the years between 30 June 1988 and 30 June 2001 he did not pay all the income tax that he was assessed to be liable to pay. He also admitted the making of the two sequestration orders and his being made bankrupt on his own petition.

7 In relation to Ground 2, he admitted that in some of the years between 30 June 1988 and 30 June 2001 he did not make adequate provision for the payment of income tax. He also admitted that he entered into the Agreement, that he did not approach the Family Court to vary the Agreement and that from time to time he both incurred debts in respect of goods and services and paid debts other than tax debts.

8 In relation to both Grounds, he denied the other matters alleged and claimed that none of the matters alleged was capable in law of constituting professional misconduct within the meaning of s 127 of the Act.

The present applications

9 This judgment relates to two applications by the Respondent and one application by a third party. The Respondent applied on 6 May 2004 for orders setting aside two summonses to produce documents, addressed respectively to his wife, Sarah Anne Archer (‘Mrs Archer’) and to the Proper Officer, Barrington Partners, Chartered Accountants. In addition, he applied on 20 August 2004 for an order setting aside a summons addressed to the Registrar of the Local Court, Newcastle. The dates of issue of these three summonses were respectively 5 March, 24 May and 5 August 2004. The remaining application was filed by Mrs Archer on 6 May 2004. It was for an order setting aside the summons addressed to her.

10 Each of the three summonses was issued at the instigation of the Applicant. The Tribunal’s power to issue a summons to produce documents arises under s 84 of the Administrative Decisions Tribunal Act 1997.

11 In all three applications, it was claimed that the summonses constituted an abuse of process, and an order for costs was sought. Except with regard to the summons to the Registrar of the Local Court, the applications claimed also that the summonses were oppressive. The Respondent claimed in both of his applications that the summonses to which they related had not been issued for any lawful purpose. He alleged also in relation to the summons to Barrington Partners that it had been procured by the making of a false declaration. This last allegation was not however pressed in his written or oral submissions.

12 By the time this application came on for hearing, Barrington Partners had produced documents to the Tribunal pursuant to the summons addressed to it. No documents had been produced in response to either of the other two summonses.

13 The summons to Mrs Archer required the production of a very wide range of documents and records relating to her affairs ‘from 1 July 1987 to date’. Ten categories were set out. She was required to produce all documents and records (electronic or otherwise) relating to any of the following: any bank account held by her (whether in her own name or jointly with any other person or entity) or of which she was a signatory; any purchase or sale of real estate or shares (whether in her own name or jointly with any other person or entity); the ownership and registration of any motor vehicle registered in her name or in respect of which she had an entitlement to use; and any trust or superannuation scheme set up for the benefit of her or her family. Also required was the production of all statements in respect of any credit card held by her (whether in her own name or jointly with any other person or entity) or of which she was a signatory; all her tax returns and notices of assessment; all her ‘financial and accounting documents and records (electronic or otherwise)’; and all her passports, or copies thereof. Two further categories of documents were described as follows:-

1.3 All records (electronic or otherwise) from 1 July 1987 to date relating to the payment to you of any money by Stephen John Archer and all records from 1 July 1987 to date relating to any payments by Stephen John Archer on your behalf.

1.7 All documents and records (electronic or otherwise) evidencing any payment to or on behalf of Stephen John Archer for the period 1 July 1987 to date and without limiting the generality thereof correspondence, invoice (sic), statements, cheque butts, electronic banking records.

14 The summons to Barrington Partners required the production of a very wide range of documents and records relating to the Respondent, Mrs Archer or a company called Adbaston Pty Ltd (‘Adbaston’), whether in its own right or as a trustee. The period specified was ‘the financial years ending 30 June 1987 to date’. The eleven categories listed included all financial and accounting records (electronic or otherwise); all tax returns and notices of assessment; all records and correspondence with the Australian Tax Office; all records (whether electronic or otherwise) relating to any bank account; fee notes recording services provided by Barrington Partners; and all correspondence (whether electronic or otherwise) between Barrington Partners and any of these parties, or between Barrington Partners and any other person or entity in respect of the affairs of any of these parties. Also required to be produced were all records (whether electronic or otherwise) relating to the winding up of Adbaston; all documents (whether electronic or otherwise) relating to any agreement between the Respondent and Adbaston (including any agreement to lease property to the Respondent or to provide services to him); all credit card statements in respect of any credit card held by the Respondent or Mrs Archer; and a wide range of documents relating to the financial or corporate affairs of Adbaston.

15 The summons to the Registrar of the Local Court required the production of the Court’s entire file relating to proceedings against the Respondent that resulted in a criminal conviction on 27 May 2003. It was for an offence under s 8C(1)(aa) of the Taxation Administration Act 1953 (Cth), constituted by refusal or failure to provide information to the Deputy Commissioner of Taxation when required to do so.

16 In a written submission filed on 20 September 2004 and at the hearing on 21 September, Mr McCulloch, counsel for the Applicant, indicated that it did not oppose an order setting aside the summons to the Registrar of the Local Court. We will accordingly make an order to this effect.

Previous applications by the Respondent in these proceedings

17 It is convenient now to refer to two previous applications made by the Respondent in these proceedings.

18 The first of them was, like the applications now before us, an application to set aside summonses to produce documents that were drafted in very wide terms and had been issued by the Applicant in the proceedings. These summonses, which were 16 in number, were issued in November 2003 and were addressed to the Respondent himself, to Mrs Archer and to a range of other parties.

19 The grounds on which it was claimed that they should be set aside were that they were oppressive on account of the onerous requirements that they imposed upon the recipients, that they sought the production of numerous documents that were irrelevant to the issues raised in the Information and that for these reasons they were an abuse of process.

20 By 11 February 2004, the date on which we heard the application, all the third party recipients of the summonses, except Mrs Archer, had either produced documents to the Tribunal or indicated that they had no documents to produce.

21 The documents required by 15 out of these 16 summonses included documents relating to the affairs or activities of the Respondent (and in some instances also, the joint affairs or activities of the Respondent and Mrs Archer). In 9 of these 15 summonses, production was also required of documents relating to the affairs or activities of Mrs Archer alone. The summonses in this category were addressed to Mrs Archer herself, to the Roads and Traffic Authority, to the Department of Immigration and Multicultural and Indigenous Affairs and to specified branches of six banks.

22 The summons addressed to Mrs Archer, which was apparently not served, required production of the same documents as are listed in the summons to her with which we are now dealing. In the current summons, a different address appears at the top.

23 The remaining summons, addressed to an accountant in Perth, required production all documents and records relating to Adbaston.

24 In a reserved judgment delivered on 25 February 2004 (New South Wales Bar Association v Archer [2004] NSWADT 38 – hereafter Archer (No 1)), we dismissed the application, subject to one qualification. This was that the test of relevance to be applied in these circumstances was not, in our view, satisfied by the requirements in the summons to the Respondent to produce (a) all records relating to ‘any family trust’ and (b) all records relating to ‘any superannuation scheme’.

25 We accordingly ordered that the clauses imposing these requirements should be deleted from the summons to the Respondent, but that subject to this and to any further objections raised by him to specific documents that had been produced the Applicant should have access to the documents produced.

26 The second application of the Respondent to which we should refer was heard by us on 25 and 26 March 2004. It was an application for the proceedings to be dismissed on the ground that the matters set out in the Information were incapable in law of constituting professional misconduct within the meaning of the Act.

27 In a reserved judgment delivered on 21 April 2004 (Council of the New South Wales Bar Association v Archer (No 2) [2004] NSWADT 78 – hereafter Archer (No 2)), we dismissed the application.

28 Later in the present judgment, we will refer to some further aspects of these two prior decisions.

Submissions regarding the summons addressed to Mrs Archer

29 The principal grounds on which Mr Ireland QC, counsel for Mrs Archer, claimed that the summons addressed to her should be set aside were that they imposed an oppressive obligation on her, and that they required the production of numerous documents that were irrelevant to these proceedings.

30 Mr Ireland relied on the proposition that non-parties should not be required to undergo an oppressive exercise akin to discovery. He cited Commissioner for Railways v Small (1938) 38 SR (NSW) 564 and Southern Pacific Hotel Service Inc v Southern Pacific Hotel Corporation [1984] 1 NSWLR 710.

31 Citing in addition Finnie v Dalglish [1982] 1 NSWLR 400 at 407, he submitted that oppression of a non-party recipient of a summons would be occasioned if the terms of the summons compelled the recipient, in the same manner as a party giving discovery, to determine which documents in his or her possession might or might not be relevant to the issues in dispute. He appeared at one stage to argue that the summons to Mrs Archer fell within this principle because it used phrases such as ‘relating to’ and ‘without limiting the generality thereof’ in defining the documents required.

32 It was however held by Waddell J in Spencer Motors Pty Ltd v LNC Industries Ltd [1982] 2 NSWLR 921 at 929 and by Clarke J in Southern Pacific Hotel Service Inc v Southern Pacific Hotel Corporation at 719 that the use of phrases such as ‘relating to’ or ‘referring to’ is not necessarily oppressive. Their Honours pointed out when the context in which such phrases are used in a summons was taken into account, it might become clear that the recipient would not find it difficult to identify the documents required and/or that the ‘potential width’ of the phrase was significantly restricted.

33 Ultimately, the principal submission that Mr Ireland made on the issue of oppressiveness was that Mrs Archer should not be required to produce such a huge quantity of documents. The summons, he said, called for all financial records in her possession relating to a period of over 17 years. Referring to Arhill Pty Ltd v General Terminal Co Pty Ltd (1991) 23 NSWLR 545, he argued that the sheer width and indeterminacy of the range of documents required were sufficient to justify characterising the summons as oppressive.

34 In support of his submission that the documents called for included many that were irrelevant to the proceedings, Mr Ireland emphasised that in conducting proceedings under s 167 of the Act (such as these proceedings are) the Tribunal must limit its enquiry to the case particularised. This is necessary to ensure that the Tribunal does not exceed its jurisdiction and that the practitioner against whom the proceedings are brought is afforded procedural fairness.

35 These principles were affirmed by the High Court in Walsh v Law Society of New South Wales (1999) 198 CLR 73. At 94-95, McHugh, Kirby and Callinan JJ defined as follows the role of the Tribunal:-

Proceedings may only be instituted “with respect to a complaint” by “an information laid by the appropriate Council or the Commissioner” in accordance with Pt 10 of the Act. The function of the Tribunal is confined to that of conducting a hearing “into each allegation particularised in the information”.
36 At 95, their Honours stated that in view of the scheme of the legislation and the introduction of new statutory bodies to regulate legal practitioners ‘the requirements of particularity contained in the Act (and the safeguards thereby introduced for the practitioner concerned) would not be narrowly construed’.

37 Mr Ireland submitted that the only paragraph in the Particulars to the Information (these are set out in [5] above) to which documents possessed by Mrs Archer could conceivably be relevant was paragraph (a) under Ground 2.

38 The allegation particularised here was that the Respondent made no attempt to disengage himself from, or to seek a reduction of, the obligations imposed on him by the agreement, registered under the Family Law Act 1975 (Cth), that he made with Mrs Archer in 1988 (hereafter ‘the Deed’). (We interpolate here that near the end of the hearing of this application the Deed was tendered by the Applicant and admitted into evidence, over an objection by the Respondent.) A necessary ingredient of this part of the Applicant’s case was that the Respondent complied with his obligations under the Deed to pay maintenance to her. For this reason, documents in her possession recording payments by him to her might be of relevance. But in Mr Ireland’s submission all the other documents required – spanning a period of 17 years and relating to her income, her assets (including real property and motor vehicles), her expenditure and any overseas travel in which she engaged – were clearly irrelevant.

39 In this connection, he strongly disputed passages in the written submissions of Mr McCulloch, counsel for the Applicant. These were to the effect that the case brought by the Applicant included allegations (a) that the Respondent ‘alienated his income’ by the ‘mechanism of the Deed’ and (b) that he was ‘benefiting collaterally’ from the payments made to Mrs Archer, as could be discerned from evidence (such as her documents would provide) that the ‘household lifestyle’ was ‘beyond that which was reasonable in the circumstances’. Mr McCulloch relied on these statements in his written submissions to support the proposition that evidence of Mrs Archer’s overall financial situation, including her assets, her sources of income apart from payment under the Deed and the scale and nature of her expenditure, was relevant to these proceedings.

40 Mr Ireland contended that neither of these two allegations was to be found in the Information. It did not assert, expressly or by implication, that the Deed was a ‘mechanism’ or ‘sham’ providing a means for the Respondent to alienate his income. Equally, it did not assert that Mrs Archer colluded in any such scheme established by the Respondent.

41 A further objection raised to the summons by Mr Ireland was that it included clauses requiring the production of (a) all records relating to ‘any family trust’ and (b) all records relating to ‘any superannuation scheme’, even though, as indicated above at [24], we ruled in Archer (No 1) that the equivalent clauses in the summons addressed to the Respondent himself should be struck out. These documents had been included in the current summons to Mrs Archer even though it was issued after we had delivered our decision.

42 In these circumstances, Mr Ireland argued, the apparent irrelevance or low relevance of most of the documents required reinforced his claim that a summons of such width and indeterminacy must be characterised as oppressive. He referred to the ‘balancing exercise’ that must be carried out in determining whether the inconvenience caused to a non-party recipient of a summons in having to produce large quantities of documents is justified by the importance of the documents for the proceedings. His submission in this regard receives support from Clarke J in Southern Pacific Hotel Service Inc v Southern Pacific Hotel Corporation [1984] 1 NSWLR 710 at 719-720.

43 Mr Ireland’s final contention was that the Tribunal, having found the summons to be oppressive and an abuse of process, should not apply a ‘blue pencil’ to ‘rescue’ any parts of it that might be justifiable. It should instead withdraw the summons. He cited Finnie v Dalglish [1982] 1 NSWLR 400 and a Queensland case, R v Wilkey, ex parte Cooke [1991] 2 Qd R 447.

44 The Respondent, representing himself in his application to set aside the summons addressed to Mrs Archer, relied on Mr Ireland’s submissions, while adding some further arguments of his own. We shall briefly outline these additional arguments.

45 The Respondent emphasised in particular the significance of Walsh v Law Society of New South Wales (1999) 198 CLR 73. He argued that since it was not cited to us during the hearing of Archer (No 1), our decision there that a summons in identical terms to Mrs Archer should not be set aside was per incuriam.

46 In this connection, he referred in particular to paragraph [33] of our judgment, in which we outlined a submission by the Applicant that even if documents and records sought in the summonses that it had taken out did not assist in establishing the allegations set out and particularised in the Information, they might still be relevant to the issue of aggravation. Such a submission, the Respondent argued, was clearly contrary to Walsh.

47 He submitted that, in addition to those passages identified by Mr Ireland, further passages in the Applicant’s written submissions infringed the principles laid down in Walsh. They sought to justify the breadth of the summons by reference to allegations that did not form part of the Information. These included allegations that the Respondent maintained a lifestyle that exceeded what was reasonable and that he made payments to Mrs Archer in excess of the Deed’s requirements.

48 The Respondent referred us to the test of relevance formulated, for the purpose of considering the validity of a summons to produce, in Trade Practices Commission v Arnotts Ltd (1989) 88 ALR 90 at 103. This is that the summons must have a ‘legitimate forensic purpose’ to the extent that the material sought has an ‘apparent relevance’ to the issues to be determined. We quoted this test in Archer (No 1) at [43].

49 In that case, we also referred, at [45], to what we described as the ‘more guarded’ test stated in Arhill Pty Ltd v General Terminal Co Pty Ltd (1991) 23 NSWLR 545 at 555-556. This was that the material must be ‘necessary’ for ‘disposing fairly’ of the case. The Respondent in this regard submitted that the ‘necessity’ must be determined by reference to the issues in the case that must be disposed of ‘fairly’.

50 Finally, he contended that the summons, even if otherwise unobjectionable, could not legitimately require the production of any documents created after 30 June 2002, since this was the final day of the period during which the conduct alleged against him in the Information occurred. He claimed that our ruling to the contrary effect, in Archer (No 1) at [50], could not apply to a summons addressed to his wife. The ground for this ruling was that since some of the income tax to which the Respondent was assessed for the tax years prior to 30 June 2002 would not be payable until after this date, the patterns of his spending after this date could be relevant in these proceedings.

51 For the Respondent, Mr McCulloch commenced his written submissions by summarising the basic principles to be applied, more or less in the form put forward by Mr Ireland. He maintained, however, that what we have just described as the ‘more guarded’ test of relevance set out in Arhill was inconsistent with established authority, in so far as it was narrower than the test of ‘adjectival’, as opposed to ‘substantive’, relevance expounded in Trade Practices Commission v Arnotts Ltd.

52 He relied on our decision in Archer (No 1), submitting that nothing in the present summons to Mrs Archer offended the principles that we applied in that decision. In this connection, he relied specifically on our acceptance of his submission that the time period specified in the summonses could extend beyond 30 June 2002.

53 He pointed out that Mrs Archer had not tendered any evidence in her application to show that she was in fact oppressed by the width of the summons to her. If compliance with it posed practical problems for her, she could have provided evidence to this effect. But she had not done so.

54 In responding to Mr Ireland’s arguments that the use of phrases such as ‘in relation to’ and ‘without limiting the generality thereof’ constituted oppression, Mr McCulloch submitted that as used in this summons, these phrases did not require Mrs Archer to determine what documents were or might be relevant to the proceedings. Relying on the Spencer Motors and Southern Pacific Hotel cases, he contended that it was only when such phrases had this effect that they were oppressive.

55 With regard to Mr Ireland’s and the Respondent’s arguments deriving from passages in his written submissions (see [39] and [47] above), Mr McCulloch agreed first that the Information did not allege, expressly or by implication, that the Deed was a ‘sham’, or in any way illegal.

56 He pointed out, however, that the Deed contained provisions for the Respondent to furnish Mrs Archer with a motor vehicle and to pay for overseas holidays. For this reason, he argued, evidence regarding her ownership of motor vehicles and her overseas travel was of relevance to these proceedings.

57 Mr McCulloch sought to justify the claim in his written submission that the Information implicitly alleged that the Respondent maintained a lifestyle that exceeded what was reasonable. He pointed out that our decision in Archer (No 1) had relied significantly on the proposition, drawn from Wardell v New South Wales Bar Association [2002] NSWSC 548, that a practitioner who spent substantial sums out of his income in order to maintain an unreasonably high lifestyle, while fully aware of, or recklessly ignoring, the likelihood that for this reason he could not pay his income tax, could be held unfit to remain on the roll of practitioners. It was on this basis that at [44] we held, with reference specifically to ground 2 of the Information, that

the material sought in these summonses has an ‘apparent relevance’ to the questions whether the Respondent, during the years in question, made ‘adequate’ payments of income tax, or ‘adequate’ provision for such payments.
58 Mr McCulloch submitted finally that, if in fact we found the summons to be unduly wide, we should not strike it out wholly if parts of it were acceptable and could be ‘saved’. It was, he claimed, quite appropriate for us to use a ‘blue pencil’.

Our conclusions on the summons addressed to Mrs Archer

59 In determining whether the documents which the summons requires Mrs Archer to produce are of ‘apparent relevance’ in these proceedings (to quote again the test laid down in Trade Practices Commission v Arnotts Ltd), we agree with Mr Ireland and the Respondent that it is of prime importance to take careful account of what the Information alleges and what it does not allege. Not to do so is to infringe the principles given strong emphasis by the High Court in Walsh v Law Society of New South Wales.

60 In broad terms, the factual allegations that the Information makes can be summarised as follows. In respect of the tax years 1988 to 2002, the Respondent failed to pay income tax and to make adequate provision for the payment of income tax. In consequence, he became bankrupt on three occasions, with the Deputy Commissioner of Taxation as a substantial creditor. The reasons for these occurrences were twofold. First, he chose to comply with the obligations imposed on him by the Deed to make payments to Mrs Archer, even though (a) he could have had these obligations varied in his favour by applying to the Family Court and (b) he knew that if the Deed was not so varied, he was unlikely to be able to meet his tax obligations. Secondly, he chose to incur and discharge debts for goods and services for his own benefit and that of his family and associates, thereby preserving his standard of living, rather than to meet his debts to the Australian Tax Office.

61 We are satisfied that any documents or records in Mrs Archer’s possession that relate to payments made to her or on her behalf by the Respondent have ‘an apparent relevance’ to these allegations. They may be relevant in either or both of two distinct ways. First, they may assist in proving whether and if so, to what extent, the Respondent complied with his obligations under the Deed. Secondly, they may provide evidence of the discharge of debts incurred by the Respondent for goods and services for the benefit of his family.

62 Within this category, the summons may in our view extend to the production of any documents created after 30 June 2002, even though this was the final day of the period during which the conduct alleged in the Information occurred. We see no reason why our ruling along these lines in Archer (No 1) should not apply to the present summons addressed to Mrs Archer. The basis for this ruling remains the same, namely, that since some of the income tax to which the Respondent was assessed for the tax years prior to 30 June 2002 would not be payable until after this date, the patterns of his spending after this date could be relevant in these proceedings.

63 We accept however the Respondent’s argument that, despite Mr McCulloch’s claim to the contrary, the Information does not allege, even by implication, that the Respondent paid more to Mrs Archer than he was required to do under the Deed. If any phrase in the Particulars could be so interpreted, it would be the words ‘in purported performance of the Agreement’, in paragraph (a) of the Particulars to Ground 2. But we do not think that this meaning is sufficiently conveyed.

64 We are satisfied also that any documents or records in Mrs Archer’s possession that relate to payments made by her to, or on behalf of, the Respondent between 30 June 1987 and the date of the summons have ‘an apparent relevance’ to these proceedings. The reason is that without a full picture of the financial dealings between Mrs Archer and the Respondent, the true extent of the Respondent’s compliance (if any) with the Deed may not be established.

65 For these reasons, Clauses 1.3 and 1.7 of the summons (these are quoted at [13] above) are not open to objection, because they are confined to documents and records within these categories. We should add that the submissions of Mr Ireland and the Respondent contained some acknowledgment of this, at least in relation to the former clause.

66 The documents and records listed in the remaining clauses of the summons relate to Mrs Archer’s financial affairs, including her income, her expenditure and her assets, and to any overseas travel in which she may have engaged. These clauses were the focus of strongest opposition.

67 We agree with Mr Ireland and the Respondent that the Information did not allege any form of collusion by Mrs Archer in any ‘scheme’ carried out by the Respondent through the ‘mechanism’ of the Deed.

68 We consider also that, despite suggestions to the contrary in Mr McCulloch’s written submissions, the Information did not allege, expressly or by implication, he was ‘benefiting collaterally’ from the payments made to Mrs Archer. It equally did not allege that there existed a ‘household lifestyle’. We take this phrase in Mr McCulloch’s submissions to mean implicitly the lifestyle of a joint household of Mrs Archer and the Respondent, or at least a lifestyle of his to which she regularly contributed, since it was claimed in the submissions that her credit card statements ‘would quite clearly be “adjectivally relevant” to disclosing the household lifestyle’. It follows that we reject also the assertion in the submissions that the Information alleged this ‘household lifestyle’ to be ‘beyond that which was reasonable in the circumstances’.

69 For these reasons, we cannot accept the principal arguments put forward by Mr McCulloch for claiming that the test of ‘apparent relevance’ is satisfied with regard to the remaining documents and records listed in the summons. These bear upon financial and related affairs of Mrs Archer that are independent of her dealings with the Respondent. Given the number and breadth of the categories set out and the length of the period to which they relate, it is likely that there are very many of them.

70 There remain two lines of argument, however, that might support the conclusion that some, at least, of these documents have ‘apparent relevance’ to the matters alleged in the Information.

71 The first of these formed part of Mr McCulloch’s submissions. It is that because the Deed contained provisions for the Respondent to furnish Mrs Archer with motor vehicles and to pay for overseas holidays, documents and records relating to her ownership of any motor vehicle and the nature and duration of any overseas travel in which she engaged were of ‘apparent relevance’.

72 In our judgment, however, the relevant evidence on these matters is sufficiently embraced within Clause 1.3, which we have already held to be unobjectionable. To the extent that Mrs Archer’s motor vehicles and overseas holidays were paid for by the Respondent, documents and records relating to them are required by this Clause. Subject to the considerations that we will now explore, documents relating to any other motor vehicles that she possessed or overseas holidays that she enjoyed are irrelevant.

73 The second and more substantial of these lines of argument was not put by Mr McCulloch nor mentioned by Mr Ireland or the Respondent. It is as follows.

74 Paragraph (a) of the Particulars to Ground 2 of the Information asserts that if the Respondent had approached the Family Court for an order to vary the Deed, the Deed would have been varied in a manner that would have enabled him to meet both his obligations under it and his obligations to pay tax. Implicitly, it is claimed that his obligations under the Deed would have been reduced.

75 The Deed was entered into on 29 March 1988 between the Respondent and Mrs Archer. For present purposes, it is sufficient to note that in it he agreed amongst other things to make a range of payments by way of ‘permanent provision’ for her and for the two children of their marriage. The children were born on 6 December 1976 and 10 January 1980.

76 The Deed was registered as a maintenance agreement in the Family Court of Western Australia on 2 May 1988, under s 86(1) of the Family Law Act 1975 (Cth) (‘the FL Act’). Section 86(2A), which was inserted by s 46 of the Family Law Amendment Act 1987 (Cth), provides that a registered maintenance agreement may be varied under s 83 of the FL Act as if it were a consent order made by the court in which the agreement was registered.

77 Under s 83, which is headed ‘modification of spousal maintenance orders’, the court has wide powers of variation. Relevantly, the grounds on which it may increase or decrease, under s 83(1)(f) and s 83 (2), the amount payable under a spousal maintenance order or, as in this case, a registered maintenance agreement, include changes in the circumstances of the person receiving or the person making the payments, so long as those changes ‘justify’ the increase or decrease.

78 Section 83(7) requires the court to have regard to the provisions of s 75. This section lists in subsection (2) a very wide range of matters to be ‘taken into account’ in regard to spousal maintenance. It is sufficient here to note that they include ‘the income, property and financial resources of each of the parties’ (para (b)); ‘whether either party has the care and control of a child of the marriage who has not attained the age of 18 years’ (para (c)); ‘where the parties have separated or the marriage has been dissolved, a standard of living that in all the circumstances is reasonable’ (para (g)); and ‘any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account’ (para (o)).

79 The argument may be made that, by virtue of these provisions, documents and records relating generally to the financial affairs of Mrs Archer – irrespective of whether they bore upon any dealing between her and the Respondent – would in fact assist in establishing the Information’s allegation, in Paragraph (a) of the Particulars to Ground 2 of the Information, that if the Respondent had approached the Family Court for an order to vary the Deed, an order would have been made reducing his obligations under it. This is because the Court, in dealing with such a hypothetical application, would have been required to take into account all significant aspects of Mrs Archer’s financial circumstances, not just those which involve dealings with the Respondent.

80 It would follow from this line of reasoning that the Applicant, in seeking to substantiate this allegation in the Information before us, may claim that documents and records bearing on this topic are of ‘apparent relevance’ and may therefore be included in a summons to produce addressed to her.

81 We have concluded however that in the particular circumstances we should not treat this line of reasoning as a basis for enlarging the range of documents and records that Mrs Archer should be required to produce under the summons addressed to her. Our reasons are these.

82 First, there is the very important procedural consideration that neither her counsel nor the Respondent has addressed this particular way in which the relevant clauses of the summons might be justified.

83 Secondly, when due account is taken of the very wide range of matters, listed in ss 75 and 83 of the FL Act, that the Family Court must take into account in deciding whether or not to vary a registered maintenance agreement, it becomes clear that there is a strong possibility that detailed evidence as to Mrs Archer’s financial situation since 1987 might play a quite insignificant role in our decision whether the Respondent would, as alleged in the Information, have been successful if he had applied to the Court for his obligations under the Deed to be reduced. It is quite feasible, for instance, that this issue might be effectively concluded by evidence of significant changes in the circumstances of the Respondent himself.

84 Our third reason, following on from the second, is based on a methodology that we outlined above at [42]. We mean by this the ‘balancing exercise’, described by Clarke J in Southern Pacific Hotel Service Inc v Southern Pacific Hotel Corporation [1984] 1 NSWLR 710 at 719-720, of determining whether the inconvenience caused to a non-party recipient of a summons in having to produce large quantities of documents is justified by the importance of the documents for the proceedings.

85 There are, as we have said, no compelling grounds for believing that detailed evidence as to Mrs Archer’s financial situation since 1987 would necessarily play a major role in substantiating the Information’s claim that the Respondent could have reduced his obligations under the Deed by applying to the Family Court. For this reason, we hold that the numerous documents in her possession which might supply such evidence have not been shown to be of sufficient importance to justify requiring their production by her, a non-party. It follows that the summons to her, in so far as it requires their production, must be characterised as oppressive.

86 For the foregoing reasons, the only clauses in the summons to Mrs Archer that should not be treated as oppressive are Clauses 1.3 and 1.7.

87 As indicated earlier, both Mr Ireland and the Respondent argued that, if we found the summons to be oppressive at least in regard to its predominant requirements, we should strike it down as a whole.

88 We note however that Waddell J in Spencer Motors Pty Ltd v LNC Industries Ltd [1982] 2 NSWLR 921 adopted a different methodology when confronted with a similar situation. At 930, he referred to Rath J’s ruling in Finnie v Dalglish [1982] 1 NSWLR 400 that the whole of a subpoena that has been found to be oppressive in most of its clauses should be struck out. But he then described a further option, which was to strike out from the subpoena before him the four offending clauses, each of which defined an unduly wide category of documents to be produced, and to ‘save’ the remaining clause, which defined a further category that he had found to be objectionable. He held over for further argument the question of which of these options was preferable.

89 In our judgment, the latter of these two approaches is the more appropriate one here. Having regard to the procedural history of this case, we are reluctant to cause a possible further delay by striking down the whole summons when we have held two entirely severable clauses to be unobjectionable.

90 Our observations regarding the remaining clauses may or may not deter the Applicant from having a further summons issued to Mrs Archer. If they do, time and expense will most likely have been saved because the Applicant will have had the benefit of the two clauses that we have upheld without having to issue a further summons. If they do not, it will still be the case that no time and expense will have been lost unnecessarily on account of our decision to uphold these clauses.

91 We are aware that our conclusion in relation to this summons is substantially the opposite of our conclusion on a summons in the same terms in Archer (No 1). By way of explanation, we would note our acceptance of the Respondent’s submission, mentioned above at [45], that because Walsh v Law Society of New South Wales (1999) 198 CLR 73 was not cited to us in that earlier hearing, our decision regarding the summons to Mrs Archer was per incuriam. It is relevant also that the submissions to us at that hearing did not highlight either this particular summons (which was one of a group of 16 before us) or the importance of the distinction between Mrs Archer’s independent financial transactions and her transactions that in some way involved the Respondent. It was only in the course of hearing argument on the matters dealt with in Archer (No 2) that the importance of both this distinction and the decision in Walsh was fully brought home to us.

92 We will give effect to the conclusions that we have reached by ordering that, except in relation to Clauses 1.3 and 1.7, the application by Mrs Archer for the summons to her to be set aside should be allowed. In order to avoid any difficulties that might arise from the doctrine of res judicata, we will make no order on the accompanying application by the Respondent regarding this summons. It is sufficient that the outcome sought in that application will be achieved, to the extent that we consider appropriate, by our order on Mrs Archer’s application.

The summons addressed to Barrington Partners

93 As indicated above at [14], the summons to Barrington Partners required the production of a wide range of document and records. It effectively called for any document or record held by this firm of accountants that related to the affairs of any or all of the Respondent, Mrs Archer and Adbaston between the financial year ending 30 June 1987 and the date of the summons.

94 As indicated above at [12], Barrington Partners have produced material in response to the summons.

95 The Respondent maintained that, in so far as the summons required documents and records relating to the financial affairs of Mrs Archer alone, irrespective of any connection between those affairs and the affairs of the Respondent, it was open to the same objections of oppressiveness and irrelevance as the summons addressed to Mrs Archer.

96 He made the same submissions with regard to the requirement to produce documents and records relating to the affairs of Adbaston.

97 As Mr McCulloch pointed out, the Respondent took some of the wind out of his own sails by also alleging in his written submission that Barrington Partners had no documents or records in its possession relating to the affairs of either Mrs Archer or Adbaston. In this event, Mr McCulloch argued, the Respondent could hardly claim that the summons, in seeking such material, had imposed oppressive obligations on Barrington Partners

98 With regard to the required documents that related to his own affairs, the Respondent submitted that three categories in particular were unduly wide and of no relevance. These were (a) all fee notes recording services provided by Barrington Partners to him; (b) all correspondence between him and Barrington Partners; and (c) all correspondence between Barrington Partners and any third party regarding his affairs.

99 Mr McCulloch submitted that since Barrington Partners had provided professional services as accountants to the Respondent, the documents and records in their possession were likely to include material bearing upon the Respondent’s application of his income, including possibly his tax returns and notices of assessment.

100 But for the fact that documents have already been produced by Barrington Partners, and for the Respondent’s statement that Barrington Partners did not deal at any stage with the affairs of Mrs Archer or Adbaston, we would have been inclined to grant his application. We have already indicated our position as regards material dealing with Mrs Archer’s independent financial situation. The relevance of Adbaston to these proceedings is still not clear to us. It would be difficult to use a ‘blue pencil’ with this summons, as the passages in the summons requiring irrelevant documents cannot easily be severed from the rest.

101 On the other hand, we are not persuaded by the Respondent’s argument that the documents relating to his own affairs that he singled out for criticism are necessarily irrelevant. On this particular issue, we accept Mr McCulloch’s submission.

102 In the circumstances, we see no advantage in formally setting aside the whole summons. We consider it sufficient that, as was suggested by Mr McCulloch, the Respondent should be granted first access to the documents produced by Barrington Partners, in order to raise any objections that he may have to the granting of access to specific documents to the Applicant. This grant of first access is to be exercised within seven days of the date of these reasons. The Applicant may then have access to the produced documents, except any document in respect of which the Respondent has objected. Grants of access are to include permission to uplift for not more than 48 hours for the purpose of copying. Any objection to access to a document is to be listed for hearing if necessary. The principles to be applied in determining any such objection will be those set out in this judgment.

Costs

103 In all the applications to which this decision relates, costs were sought.

104 The two applications relating to the summons to Mrs Archer have been substantially successful. The Respondent’s application for an order striking out the summons to the Registrar of the Local Court was not opposed. On the other hand, we have not acceded to his application relating to the summons to Barrington Partners.

105 As to the applications for costs by the Respondent, it appears to us that our only power to award costs in his favour arises under s 171E of the Act. This provides in subsection (2), however, that the power is only exercisable when the Tribunal, having completed a hearing relating to a complaint, is satisfied that the practitioner concerned is not guilty of unsatisfactory professional conduct or professional misconduct. Those conditions have not been satisfied, though they might be at some future stage. For this reason, the matter of costs in the applications brought by him must be reserved.

106 It is not clear to us whether and if so, according to what principles, we may order payment of Mrs Archer’s costs by the Applicant. The appropriate course is, we think, to allow a period of 28 days within which Mrs Archer, if she wishes to pursue the matter, may file and serve an application for costs, with supporting submissions. The Applicant should then have a further 28 days to file opposing submissions. In the absence of a request by either party for a hearing, the matter should then be resolved by a decision ‘on the papers’, under s 76 of the Administrative Decisions Tribunal Act 1977.

107 This matter is set down for further directions at 9.30 a.m. on 19 October 2004.

Revised 20 October 2004: Name of third party corrected.