Council of the New South Wales Bar Association v Archer

The Council of the New South Wales Bar Association (the appellant) appealed to the Court of Appeal of New South Wales against an order of the Tribunal that required it to produce certain documents. The dispute concerned the appellant's claim to privilege over these documents, which were sought by a legal practitioner (the respondent) in disciplinary proceedings.

The primary legal issue before the Court of Appeal was whether the appellant, as the body responsible for handling complaints against legal practitioners under the *Legal Practitioners Act 1987* (NSW), could be compelled to produce documents over which it claimed privilege, and whether such privilege, if it existed, had been waived by the appellant's conduct.

The Court of Appeal reasoned that the *Legal Practitioners Act 1987* (NSW) provided a specific protection against the compulsory production of documents held by the Bar Association in relation to its disciplinary functions. This protection was not absolute and could be waived if the conduct of the Bar Association was inconsistent with the maintenance of the privilege. However, the Court found that the conduct of the Bar Association in this instance did not demonstrate an inconsistency that would amount to a waiver of privilege. The Court applied the principle that waiver of privilege requires a clear and unequivocal act or omission that is inconsistent with the continued assertion of the privilege.

The Court of Appeal allowed the appeal, set aside the orders of the Tribunal requiring the production of documents, and ordered that the summons to produce documents be dismissed. The respondent was ordered to pay the appellant's costs of the appeal and the application for leave to appeal.