CITATION: Council of the New South Wales Bar Association v Archer [2008] NSWADT 311 DIVISION: Legal Services Division APPLICANT Council of the New South Wales Bar Association PARTIES: RESPONDENT Stephen John Archer FILE NUMBER: 032019 HEARING DATES: 4 November 2008 SUBMISSIONS CLOSED: 4 November 2008 DATE OF DECISION: 21 November 2008 BEFORE: Chesterman M - Deputy President CATCHWORDS: Summons to produce documents – application to set aside – relevance – non-compellable witness Administrative Decisions Tribunal Act 1997 Evidence Act 1995 LEGISLATION CITED : Legal Profession Act 1987 Legal Profession Act 2004 Legal Profession Amendment Act 2004 Arhill Pty Ltd v General Terminal Co Pty Ltd (1990) 23 NSWLR 545 Attorney General for the Northern Territory v Maurice (1986) 161 CLR 475 Australian Securities Commission v Somerville (1994) 51 FCR 38 Briginshaw v Briginshaw (1938) 60 CLR 336 Ex parte Clyne; Re Legal Practitioners Act (1969) 71 SR (NSW) 236 Clyne v New South Wales Bar Association (1960) 104 CLR 186 Cosco Holdings Pty Ltd v Commissioner of Taxation (1997) 37 ATR 432 Council of the New South Wales Bar Association v Archer [2008] NSWCA 164 Council of the New South Wales Bar Association v Archer (No 3) [2004] NSWADT 232 Council of the New South Wales Bar Association v Archer (No 9) [2007] NSWADT 214 Council of the New South Wales Bar Association v LI (2005) 64 NSWLR 603; [2005] NSWCA 415 Davison v Council of the New South Wales Bar Association [2007] NSWCA 227 CASES CITED: Lindsay v Health Care Complaints Commission [2005] NSWCA 356 Melbourne Home of Ford Pty Ltd v Trade Practices Commission (1979) 5 TPC 26; (1979) ATPR 40 Ex parte Munro; Re Legal Practitioners Act (1969) 71 SR (NSW) 448 Murray v Legal Services Commissioner (1999) 46 NSWLR 224; [1999] NSWCA 70 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449 New South Wales Bar Association v Archer [2004] NSWADT 38 New South Wales Bar Association v Cummins (2001) 52 NSWLR 279; [2001] NSWCA 284 New South Wales Bar Association v Somosi [2001] NSWCA 285 Trade Practices Commission v Arnott's Ltd (1989) 88 ALR 90 VDAE v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1557 WA Pynes Pty Ltd v Bannerman (1980) 41 FLR 175 Walton v Gardiner (1993) 177 CLR 378 Williams v Spautz (1992) 174 CLR 509 APPLICANT Council of the New South Wales Bar Association REPRESENTATION: RESPONDENT Stephen John Archer 1. The summons to produce documents dated 12 August 2008 and addressed to the Applicant is set aside ORDERS: 2. The costs of the application to set aside this summons are reserved 3. These proceedings are set down for further directions at 9.30 a.m. on 2 December 2008. REASONS FOR DECISION 1 On 9 October 2003, the Council of the Bar Association of New South Wales ('the Bar Association') filed in the Tribunal an Information under Part 10 of the Legal Profession Act 1987 ('the LP Act') against Stephen John Archer, the Respondent. 2 Because this date of filing precedes the commencement of the Legal Profession Act 2004, this case falls wholly to be determined wholly under the LP Act even though it has been repealed: see Legal Profession Act 2004, Schedule 9, clause 15. 3 Although, strictly speaking, the Informant in these proceedings is the Council of the New South Wales Bar Association, it will be referred from now on as 'the Bar Association'. The term 'Bar Council' will be used where its existence as an entity distinct from the Bar Association is of significance. 4 The Bar Association alleged in the Information that the Respondent, a legal practitioner within the meaning of section 128 of the LP Act, has been guilty of professional misconduct. In the Second Schedule to the Information, it requested 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 LP Act. 5 The following two grounds were set out in the First Schedule to the Information:- 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. 6 Particulars were supplied in relation to each ground. For present purposes, it is sufficient to indicate that the Particulars to Ground 1 included allegations that the Respondent had been made bankrupt on 18 December 1991, and again on 21 March 2002, following the presentation of a creditor's petition by the Deputy Commissioner of Taxation, and that he had also been made bankrupt on his own petition, filed on 7 April 1997, with the Deputy Commissioner of Taxation as his most substantial creditor. 7 The Respondent was admitted as a Solicitor of the Supreme Court on 4 June 1971. At his own request, his name was removed from the roll of solicitors on 5 September 1980 and he was admitted as a Barrister of the Supreme Court. 8 On 23 October 2001, the Bar Council resolved that the Respondent's practising certificate should be cancelled. 9 On 29 August 2002, the complaint from which these proceedings stem was made by resolution of the Bar Council. 10 On 31 July 2003, the Bar Council resolved under section 155(2) of the LP Act that these proceedings should be instituted. The interlocutory application to which this decision relates 11 On 12 August 2008, on the application of the Respondent, the Tribunal issued a summons to produce documents (hereafter 'the summons' or 'the present summons') under section 84 of the Administrative Decisions Tribunal Act 1997 ('the ADT Act'), addressed to the Proper Officer of the Bar Association. 12 In the Schedule to the summons, the categories of documents required to be produced were listed as follows:- 1. Copies of all minutes of meetings of the Informant, and of any committee of the Informant, held between 1 January 1990 and 31 December 1991, recording any discussion or resolution by the Informant, or by such committee, concerning the proceedings brought against the Respondent in the Supreme Court of Western Australia by the Barristers Board of that State, which proceedings were determined by the Full Court of that State on 9 March 1990 ("the 1990 Proceedings"). 2. Copies of all reports and other documents of every kind prepared by or on behalf of the Informant, or by any committee of the Informant, concerning, or in any way relating to, the 1990 Proceedings. 3. Copies of all correspondence between the Informant and the Respondent between 1 January 1990 and 31 December 1991 concerning, or in any way relating to, the 1990 Proceedings or to any discussion or resolution of the kind referred to in paragraph 1 hereof. 4. Copies of all correspondence between the Informant, or any person on its behalf, in particular its then President Ms R S McColl, and the Attorney-General of New South Wales, or any person on his behalf, between 1 January 2001 and 26 October 2001 concerning, or in any way relating to: (a) the Respondent; (b) the failure of barristers to meet their obligations to pay income tax; (c) the bankruptcy of barristers upon the application of the Australian Taxation Office; (d) the bringing of proceedings by the Informant against barristers who had failed to meet their obligations to pay income tax or who had been made bankrupt upon the application of the Australian Taxation Office. (e) the amendment, or possible amendment, of the Legal Profession Act 1987, or the regulations made under that Act, to deal, or to attempt to deal, with the matters set out in sub-paragraphs (b) and/or (c) hereof. 5. Copies of all notes and other documents that record or refer to discussions between any person on behalf of the Informant, in particular its then President Ms R S McColl, and the Attorney-General of New South Wales, or any person on his behalf, between 1 January 2001 and 26 October 2001 concerning, or in any way relating to: (a) the Respondent; (b) the failure of barristers to meet their obligations to pay income tax; (c) the bankruptcy of barristers upon the application of the Australian Taxation Office; (d) the bringing of proceedings by the Informant against barristers who had failed to meet their obligations to pay income tax or who had been made bankrupt upon the application of the Australian Taxation Office. 6. Copies of all correspondence between the Informant, or any person on its behalf, and the Attorney-General of New South Wales, or any person on his behalf, between 28 February 2001 and 9 October 2003 concerning, or in any way relating to: (a) the commencement of these proceedings, or of any other proceedings, by the Informant against the Respondent; (b) the provision of funds by the New South Wales Government, or by any department or instrumentality of such Government, to pay the whole or any part of the Informant's costs of these proceedings, or of any other proceedings brought by the Informant against the Respondent. 7. Copies of all notes and other documents that record or refer to discussions between any person on behalf of the Informant, and the Attorney-General of New South Wales, or any person on his behalf, between 28 February 2001 and 9 October 2003 concerning, or in any way relating to: (a) the commencement of these proceedings, or of any other proceedings, by the Informant against the Respondent; (b) the provision of funds by the New South Wales Government, or by any department or instrumentality of such Government, to pay the whole or any part of the Informant's costs of these proceedings, or of any other proceedings brought by the Informant against the Respondent. 8. Copies of all correspondence between the Informant, or any person on its behalf, and the Attorney-General of New South Wales, or any person on his behalf, between 9 October 2003 and 12 August 2008 concerning, or in any way relating to: (a) these proceedings; (b) the payment by the New South Wales Government, or by any department or instrumentality of such Government, of any part of the Informant's costs of these proceedings. 9. Copies of all notes and other documents that record or refer to discussions between any person on behalf of the Informant, and the Attorney-General of New South Wales, or any person on his behalf, between 9 October 2003 and 12 August 2008 concerning, or in any way relating to: (a) these proceedings; (b) the payment by the New South Wales Government, or by any department or instrumentality of such Government, of any part of the Informant's costs of these proceedings. 10. Copies of all correspondence between the Informant, or any person on its behalf, in particular its then President Ms R S McColl, and any person representing the "Sydney Morning Herald", in particular Mr Paul Barry, between 1 January 2001 and 31 March 2001, concerning, or in any way relating to: (a) the Respondent; (b) the failure of barristers to meet their obligations to pay income tax; (c) the bankruptcy of barristers upon the application of the Australian Taxation Office. 11. Copies of all notes and other documents that record or refer to discussions between any person on behalf of the Informant, in particular its then President Ms R S McColl, and any person representing the "Sydney Morning Herald", in particular Mr Paul Barry, between 1 January 2001 and 31 March 2001, concerning, or in any way relating to: (a) the Respondent; (b) the failure of barristers to meet their obligations to pay income tax; (c) the bankruptcy of barristers upon the application of the Australian Taxation Office. 13 On 26 August 2008, the Bar Associated filed an application in the Tribunal for orders that the summons be set aside and that the Respondent pay the costs of the application. 14 At the hearing of this application on 6 November 2008, the Tribunal was constituted by myself, sitting alone, pursuant to an assignment under section 24A(2)(b) of the ADT Act. The evidence adduced at the hearing 15 At the hearing, I admitted, on the tender of the Bar Association, copies of the following documents:- (a) The Constitution of the New South Wales Bar Association. (b) Minutes of the Bar Council recording the election of the following members of the Bar Association as President: Ms R McColl SC on 25 November 1999 and 8 November 2000; Mr B Walker SC on 8 November 2001 and 14 November 2002; Mr I Harrison SC on 13 November 2003 and 11 November 2004. (c) A letter dated 26 October 2001 from the Executive Officer of the Bar Association to the Respondent, advising that the Association had cancelled the Respondent's practising certificate on 23 October 2001 and enclosing a document entitled 'Report and Recommendation to Bar Council'. This document, which had been prepared by a Professional Conduct Committee, was dated 5 October 2001 and related to the Respondent. (d) Minutes, signed by Mr Walker SC as President, of the Bar Council's resolution on 29 August 2002 making the complaint against the Respondent from which these proceedings stem. (e) A report of a Professional Conduct Committee, dated 22 July 2003 and relating to the Respondent. (f) The Bar Council's resolution on 31 July 2003, signed by Mr Walker SC as President, to the effect that these proceedings should be instituted. 16 I admitted this material as business records under section 69 of the Evidence Act 1995, while noting that under section 168 of the LP Act it was not clear whether the Evidence Act applied to the hearing of this interlocutory application. I did so after hearing and dismissing objections by the Respondent on grounds of late service, the absence of verification and relevance. 17 In addition, the Bar Association tendered copies of the following correspondence, to which the Respondent raised no objection: (a) recent letters between Hicksons Lawyers (who act for the Bar Association) regarding the current application by the Association and the Respondent's objections to its tender of the documents just described; (b) a letter dated 24 April 2007 from Hicksons Lawyers to the Respondent (the contents of this letter will be outlined below); and (c) a letter dated 1 September 2008 from the Respondent to Hicksons Lawyers. 18 In this last letter, the Respondent set out – while indicating that the Tribunal's directions made prior to the present hearing did not require him to do so – a 'brief statement of the forensic purposes' for which he required production of the documents described in the Schedule to the summons. In outline, these purposes were described by him as follows:- 1. The documents described in paragraphs (1) – (3) of the Schedule would show that the Bar Association knew about proceedings taken against the Respondent in Western Australia, during which aspects of his taxation affairs were disclosed, but chose to take no step against him until after the publication of an article in the Sydney Morning Herald on 28 February 2001 alleging that he, along with other barristers then practising in New South Wales, had failed to lodge income tax returns or to pay income tax for which they were liable. 2. The documents described in the remaining paragraphs ((4) – (11)) of the Schedule were relevant to an argument that the Respondent intended to advance in the present proceedings. This was that they were not brought or maintained for any lawful purpose connected with the LP Act, but in pursuance of an agreement or arrangement between the Bar Association (made by or behalf of its then President, Ms McColl SC) and the then Attorney General (the Hon Bob Debus). According to this agreement or arrangement, the Association, in return for 'pursuing' the barristers named in the Herald article, would (a) be permitted to participate in the formulation of amendments to the LP Act and the regulations promulgated under that Act and (b) receive funding from the Government to enable it to take disciplinary proceedings against the barristers, with a view to having them removed from the Roll. The benefit that the Government would obtain was that it would be seen by the public to be 'doing something' about barristers who failed to pay tax. 3. The documents sought would also show that the Bar Association realised, 'quite soon after' the publication of the newspaper article and the making of this agreement or arrangement with the Attorney General, that the 'very best case' that it could make against the Respondent was substantially different from, and weaker than, all the cases that could be made out against barristers who had been named. Whereas the cases that in due course were successfully brought in the Court of Appeal in its inherent jurisdiction were successful because the respondent barristers had committed offences under tax law, the Respondent and another of the named barristers (William Davison) were the only barristers with respect to whom (a) disciplinary proceedings were commenced in the Tribunal and (b) the ground alleged was a failure to pay tax. The case against Mr Davison had been 'far more serious' than any case that could be brought against the Respondent. Yet the Association had instituted the present proceedings against the Respondent, more than two-and-a-half years after the newspaper article and two years after cancelling his practising certificate, and had pursued them for a further five years. The documents sought would accordingly 'make good' the inference, which the Respondent intended to substantiate, that the proceedings had only been instituted and maintained for a purpose that was not legitimate under the LP Act, namely, that of honouring the Association's agreement or arrangement with the Government. 19 In this letter to Hicksons Lawyers, the Respondent quoted a passage (at [17]) in the judgment of Hodgson JA in a recent decision of the Court of Appeal relating to these proceedings (Council of the New South Wales Bar Association v Archer [2008] NSWCA 164). In this passage, his Honour summarised the Respondent's account of his purposes in issuing an earlier summons to produce (hereafter 'the earlier summons'), dated 22 February 2007 and addressed to the Bar Association. These purposes were similar to those just outlined. The grounds advanced for setting aside the summons 20 The principal grounds on which the Bar Association's application was based were (a) that its Proper Officer was not compellable to produce any documents such as were listed in the Schedule to the summons, by virtue of the operation of section 171R of the LP Act and (b) that none of these documents was relevant to any question to be decided in the present proceedings. The Association also argued that it was entitled to claim legal professional privilege with respect to the documents listed in paragraphs (6) and (7) of the Schedule. 21 It is convenient to discuss each of these grounds separately. In her submissions on behalf of the Bar Association, Ms Adamson SC indicated that the first ground, based on section 171R, was the primary contention supporting its application for the summons to be set aside. Section 171R of the LP Act 22 Section 171R falls within Part 10 of the LP Act. It states as follows: - 171R Certain persons not compellable witnesses (1) A person referred to section 171Q is not compellable in any legal proceedings (including proceedings before the Tribunal) to give evidence or produce documents in respect of any matter in which the person was involved in the course of the administration of this Part. (2) This section does not apply to proceedings under Part 3 of the Royal Commissions Act 1923 or before the Independent Commission against Corruption. 23 Section 171Q confers immunity from liability on the persons listed in the section with regard to anything done or omitted by them in good faith for the purpose of the administration of Part 10. Relevantly for present purposes, the persons listed include the Bar Association of New South Wales, the Council of this Association, any committee or subcommittee of the Council, a member of any such committee or subcommittee and 'any member of the staff of any of the above'. 24 Brief mention should also be made of section 171P(1) of the Act. It prohibits, subject to criminal penalties, the disclosure of specified information, including information 'obtained in the administration of this Part'. An exception is created by subparagraph (c) of section 171P(1) for any disclosure made 'for the purpose of legal proceedings arising out of this Act or of any report of any such proceedings'. The Bar Association's submissions on section 171R 25 Ms Adamson drew attention specifically to the fact that under section 134, a provision within Part 10, the Association was expressly empowered to make a complaint about a legal practitioner. Its further functions under Part 10 include investigating complaints that it has made (section 148(1)) and instituting proceedings in the Tribunal (section 155(2)). Unless it invokes the Supreme Court's inherent jurisdiction under section 171M, it is obliged to institute such proceedings if it is satisfied, after completing its investigation, that there is 'a reasonable likelihood' that the Tribunal will find the legal practitioner in question to have been guilty of unsatisfactory professional conduct or professional misconduct. 26 Ms Adamson pointed out also that amongst the 'general objects' of Part 10 listed in section 123 of the LP Act are the following: 'to ensure compliance by individual legal practitioners with the necessary standards of honesty, competence and diligence' (subparagraph (b)) and 'to maintain at a sufficiently high level the ethical and practice standards of the legal profession as a whole' (subparagraph (c)). In addition, section 125 states that one of the objects of Part 10 'relating to the providers of legal services' is 'to ensure that legal practitioners are aware of the standards of honesty, competence and diligence expected of them'. 27 Ms Adamson cited the Court of Appeal's decision in Council of the New South Wales Bar Association v Archer [2008] NSWCA 164 as authority for the proposition that the protection afforded to the Bar Association by section 171R will only be displaced (a) by voluntary waiver (i.e., when it chooses to give evidence or produce documents falling within the scope of the section) or (b) in three limited situations outlined in the judgment of Hodgson JA (with whom Campbell JA and Handley AJA expressed their agreement). At [39 – 40], his Honour, having referred earlier to observations on section 171R contained in Murray v Legal Services Commissioner (1999) 46 NSWLR 224, said:- [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: (1) If the Tribunal took the view that the Commissioner was seeking to rely on some evidence in circumstances where its true probative effect could not properly be assessed because the Commissioner was relying on section 171R to withhold other evidence, in my opinion it would be open to the Tribunal to refuse to admit that evidence under section 135 of the Evidence Act 1995, on the basis that its probative value was substantially outweighed by the danger that the evidence might be unfairly prejudicial or misleading or confusing. (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 section 171R prevented a fair hearing. 28 At [43], Hodgson JA explicitly stated that the principle of imputed waiver, as outlined by the High Court in Attorney General for the Northern Territory v Maurice (1986) 161 CLR 475, did not apply to section 171R. At [44], he suggested that in certain 'narrower circumstances' – for example, when a person within the range defined in the section gave evidence in chief but then refused to answer questions in cross-examination – the section might not confer protection. He added that in the case before him it was not necessary to 'explore the limits of this possibility'. 29 With specific reference to the documents listed in the Schedule to the summons, Ms Adamson made the following points. 30 First, with regard to the documents in paragraphs (1) to (3), she drew attention to the following passage in the Professional Conduct Committee's 'Report and Recommendation to Bar Council' dated 5 October 2001(see [16] above), which formed part of the Association's evidence on the present application:- 4. On 20 December 1989 the Barristers Board of Western Australia, having conducted an investigation into Mr Archer's affairs, found that he was guilty of "illegal and unprofessional conduct" in relation to a number of matters, all of which seem to have been the genesis of his 1991 bankruptcy. 5. The Board recommended that he be struck off the roll. 6. On 21 February 1990 the Full Court of the Supreme Court of Western Australia confirmed the finding that Mr Archer had been guilty of illegal and unprofessional conduct, but determined that the proper consequence for such conduct was a series of monetary fines. During the period 20 December 1989 to 21 February 1990 Mr Archer was suspended from practising in New South Wales. 7. The Bar Association, having suspended Mr Archer from practising in New South Wales between the decision of the Board and the Full Court of the Supreme Court of Western Australia, took the view that the matter having been dealt with in Mr Archer's "home state" there was no basis for the Bar Association to pursue the matter. The file maintained by the Bar Association in relation to these matters has been located and reviewed. 31 According to Ms Adamson, this passage showed that during the period to which it related the Association considered making a complaint against the Respondent under section 134 of the LP Act. Although its ultimate decision was not to do so, it was enough for a relevant organ of the Association to give consideration to such a course of action to constitute a 'matter… in the course of the administration of' Part 10, with the consequence that any document relating to the process of consideration fell within the scope of section 171R. 32 Secondly, Ms Adamson submitted that in Council of the New South Wales Bar Association v Archer [2008] NSWCA 164, the Court of Appeal held that the Association was not obliged by what I am calling 'the earlier summons' to produce documents that were relevantly similar, except for the range of dates, to those listed in paragraphs (1) – (3) of the Schedule to the present summons. The documents in question were described in paragraph 4 of the Schedule to the earlier summons as follows:- 4. The minutes of every meeting of (a) the Bar Council; (b) any committee of the Bar Council; (c) any Professional Conduct Committee of the Bar Association, held between 1 October 2000 and 9 October 2004, that contain any reference to the Respondent. 33 With regard to the documents listed in the remaining paragraphs of the Schedule (paragraphs (4) – (11)), Ms Adamson submitted that they were clearly concerned with the question whether the Bar Association should exercise its powers under Part 10 with respect to the Respondent. Although the Association did not in fact take any formal step under Part 10 until 29 August 2002 – this being the date on which the Bar Council resolved under section 134 to make the complaint against him – it could be seen from the Respondent's own definition of the documents sought that they concerned processes of deliberation as to whether a complaint should be made. They were accordingly documents 'in respect of' a matter in which the Bar Association was 'involved in the course of the administration of' Part 10 and for this reason fell within the scope of section 171R. The Respondent's submissions on section 171R 34 The Respondent, who represented himself in opposing this application, argued that the passage cited by Ms Adamson from the Professional Conduct Committee's 'Report and Recommendation to Bar Council' dated 5 October 2001(see [31] above) and his own description of the documents required under paragraphs (4) – (11) of the Schedule to the summons were insufficient to show unequivocally that the documents sought in the summons all related to the Bar Association's exercise of functions conferred on it by Part 10. 35 In this connection, the Respondent laid emphasis on the fact that it was not until August 2002 that the Association decided to exercise a power conferred under Part 10. The documents required under paragraphs (1) – (3) of the Schedule were, however, created many years earlier, in 1990-1991. During 2001, which was the year in which the documents required under paragraphs (4) – (11) were created, it was clear that the Association's principal concern was whether or not to cancel the Respondent's practising certificate. It ultimately did so on 23 October 2001. But its power to take this step arose under Division 1AA of Part 3 of the LP Act, not under Part 10. 36 A further argument strongly pressed by the Respondent was that the Bar Association had neither identified the particular documents in its possession (within the range described in the Schedule to the summons) that it claimed to fall within the scope of section 171R, nor tendered sworn evidence to the effect that all the documents within this range that it possessed related in some way to the actual or contemplated exercise of the Association's functions under Part 10 and therefore fell within the scope of section 171R. My conclusions regarding section 171R 37 It may well be that, as the Bar Association asserts, all the documents in its possession that fall within the range defined in the summons are documents 'in respect of a matter' – for example, the making of the complaint against the Respondent, the investigation of this complaint and the institution of these proceedings – in which the Bar Association was 'involved in the course of the administration of' Part 10. A document would answer this description, and therefore fall within the scope of section 171R, even if (a) it related only to a process of deliberation by the Association as to whether or not to exercise a particular function under Part 10 (such as the making of a complaint) and (b) the immediate outcome of this process was a decision not to exercise the function, at least for the time being. A decision not to take a step authorised by Part 10 involves the exercise of functions conferred under this Part just as a decision to take the relevant step does. 38 In my judgment, however, the material put before me by the Bar Association is insufficient in itself to show that all of such documents as it possesses within the range defined in the summons satisfy the criterion spelt out in section 171R. The obstacle to drawing such an inference is the location of the power, which the Association exercised against the Respondent in October 2001, to cancel his practising certificate. That power arises under Part 3 of the LP Act, not Part 10. Documents relating to the Association's exercise of powers conferred by Part 3 are not protected from production by section 171R nor, as far as I am aware, by any other provision of the LP Act. 39 It is not self-evident from the material on which the Bar Association relied in relation to paragraphs (1) – (3) of the summons – i.e. the passage from the Professional Conduct Committee's report – that during the relevant years (1990-91) the Committee, the Bar Council or any other organ of the Association was giving consideration to making a complaint against the Respondent or taking any other step under Part 10. The only disciplinary measure actually mentioned in the passage was that of cancelling his practising certificate under Part 3. Even if some of the documents in question related to deliberations within the Association as to whether a complaint should be made under Part 10, it does not follow that all of them did. 40 By virtue of the same reasoning, I have concerns about Ms Adamson's submission based on the fact that the Court of Appeal decided in Council of the New South Wales Bar Association v Archer [2008] NSWCA 164 that the Bar Association could rely on section 171R to resist production of documents that were similar, except for the range of dates, to those listed in paragraphs (1) – (3). The documents to which the Court of Appeal's decision related were minutes of relevant meetings of the Bar Council, committees of the Council and Professional Conduct Committees between October 2000 and October 2004. Since the Association made the complaint against the Respondent in August 2002, it is self-evident that some at least of these documents would have related to the exercise of functions under Part 10. By contrast, as just pointed out, the documents required by paragraphs (1) – (3) of the present summons relate to a distinctly earlier period during which there is no clear indication, within the material put before me, that action under Part 10 was contemplated. 41 The documents required under paragraphs (4) – (11) are not susceptible to the same reasoning. In defining the documents required by all but the last two of these paragraphs, the Respondent chose to refer expressly to 'the bringing of proceedings by the Informant against barristers who had failed to meet their obligations to pay income tax or who had been made bankrupt upon the application of the Australian Taxation Office' or indeed to 'these proceedings'. Although in several of the paragraphs, the periods during which the documents required were created came to an end during 2001, and therefore predated the making of the complaint against the Respondent by at least eight months, it can easily be inferred that a number, if not the majority, of the documents in the Bar Association's possession that fall within the scope of the summons bear in some way on the exercise of its functions under Part 10. Yet again it cannot be inferred that this applies to all of these documents. 42 I take account, as obviously I must, of the fact that in Council of the New South Wales Bar Association v Archer [2008] NSWCA 164 the Court of Appeal held that the Association could invoke the protection conferred by section 171R with respect to all the documents to which it maintained that the section was referable. Having so held, the Court ordered at [51] that the summons to produce should be dismissed, even though (as Hodgson JA noted at [33]), the Association did not make a positive assertion that any documents were being withheld. 43 These aspects of the Court's decision could be taken to imply that, once the Association or any other person or body listed in section 171Q of the LP Act (as to which see [24] above) has claimed that documents required to be produced under a summons or subpoena are within the scope of section 171R, it must be treated as not compellable to produce them unless one or more of the particular circumstances outlined by Hodgson JA (see [28 – 29] above) are applicable. According to this interpretation of the decision, it would not matter that the Association (or other person or body) had not stated whether any such documents existed and had not outlined the factual basis for its claim in sworn testimony. It should be noted, however, that the Court's decision, being almost entirely concerned with the question whether the protection conferred by section 171R was subject to implied waiver, did not expressly deal with these quite distinct issues. 44 But for the possible implications of the Court of Appeal's decision that I have just outlined, I would incline to the opinion that because the Bar Association has not identified (even in general terms) any documents allegedly falling within the scope of section 171R and has not verified its claim to the protection of the section, it should not be permitted to claim that the section provides it with complete immunity from production, let alone a ground for setting aside the summons in toto. An important matter providing support for this opinion is that, for reasons already stated, it is not self-evident from the material before me that every document in the Association's possession falling within the scope of the summons falls also within the scope of section 171R. It is clearly possible that many, if not all, of such documents within the scope of paragraphs (1) – (3) do not relate at all to the actual or contemplated exercise of powers under Part 10. 45 In these circumstances, to require identification of the relevant documents and/or verification of the claim to immunity under section 171R would be in line with the approach generally adopted when a disputed claim to client legal privilege falls to be resolved within the context of a subpoena or summons to produce and it is not 'self-evident' that the document is subject to privilege: see Council of the New South Wales Bar Association v Archer (No 9) [2007] NSWADT 214 at [161]. 46 I am, however, relieved of the necessity of determining whether, in the light of the implications arising from the Court of Appeal's decision in Council of the New South Wales Bar Association v Archer, the opinion that I have just outlined is sustainable. The reason for this is that, in my judgment, the second of the grounds advanced by the Bar Association in support of its application should be upheld. The question of relevance 47 As already stated, the second ground advanced by the Bar Association was that the documents required to be produced under the summons were irrelevant to any issue to be determined in these proceedings. 48 In putting forward this contention, the Bar Association relied on the Respondent's own account, summarised above at [19], of the 'forensic purposes' for which he required production of the documents. This account formed part of the evidence tendered on this application by the Association. 49 At the hearing, the Respondent indicated that he intended to use the produced documents to support a claim by him that the Bar Association had instituted and maintained the present proceedings in bad faith and/or for a collateral and improper purpose. He said that he intended to advance this claim as a defence to the present proceedings, or as the basis of a separate application for an order that they be permanently stayed, 50 It was common ground between the parties that the criterion of relevance applicable to a summons to produce documents under section 84 of the ADT Act should be taken to be that stated by Beaumont J in the Federal Court in Trade Practices Commission v Arnott's Ltd (1989) 88 ALR 90 at 103. This was that the summons should have a 'legitimate forensic purpose', to the extent that the documents called for should have an 'apparent' or 'adjectival' relevance to the issues to be determined. This test would be satisfied, his Honour said, if the documents 'could possibly throw light on the issues in the main case'. The Bar Association's submissions on relevance 51 Ms Adamson argued that the summons in this case failed to satisfy even the relatively broad criterion of relevance propounded in Trade Practices Commission v Arnott's Ltd. The main reason for this, she said, was that the purpose said to underlie the summons focused on the conduct of the Bar Association in instituting and maintaining these proceedings in the Tribunal. The issues to be resolved in the proceedings, however, concerned only (a) the alleged conduct of the Respondent, as set out in the Information and (b) the ensuing questions (if such conduct was proved wholly or in part) of whether the Respondent had committed professional misconduct and, if so, what order or orders by way of penalty should be made. 52 According to Ms Adamson, there was a clear distinction between the issues to be resolved in these proceedings (to which, she maintained, the documents required by the summons had no relevance) and the wider range of issues that arose in the course of the Bar Association's exercise of its functions under Part 10 of the LP Act vis-à-vis the Respondent (to which, as already explained, she maintained that the required documents were indeed relevant). 53 Ms Adamson submitted further that if the Respondent wished to avert a possible finding of professional misconduct by claiming that the Bar Association's decision to institute and maintain these proceedings was motivated by an improper purpose, he could not do so simply by putting such a claim forward as a ground of defence. Instead, he could have sought an order, as the respondent practitioner had done in Murray v Legal Services Commissioner (1999) 46 NSWLR 224, that the Association's decision, made pursuant to section 155(2) of the LP Act, was invalid. Alternatively, he could apply to the Tribunal (subject to a doubt as to the scope of its powers) or to the Supreme Court for an order permanently staying the proceedings. But he had taken neither of these steps. 54 Associated with these submissions was an argument along the following lines. Although, as just indicated, the law did provide some scope for the Respondent to impugn the present proceedings by alleging that the Bar Association had instituted them in bad faith and/or for an improper purpose, he should not be permitted to use the procedure of a summons as a means of obtaining evidence in support of this allegation when, on his own admission, he could not point to any prima facie evidence of its truth. 55 In this connection, Ms Adamson relied on the following passage in the judgment of Heerey J in VDAE v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1557 at [18] (authorities cited are omitted):- An allegation of lack of good faith is a serious one. The circumstances in which the Court will find an administrative decision maker had not acted in good faith are rare and extreme:… The allegation implies a lack of an honest or genuine attempt to undertake the task and involves a personal attack on the honesty of the decision maker:… An allegation of bad faith, like an allegation of fraud, should not be advanced by an advocate unless there are proper grounds for doing so:… 56 Ms Adamson advanced further arguments in opposition to the Respondent's assertion that the Bar Association's decision to proceed against him in the Tribunal must evidently have been taken in order to honour an agreement or arrangement between its President during 2001 (Ms McColl SC, as she then was) and the then Attorney General (the Hon Bob Debus). In brief, these arguments were as follows:- 1. If any explanation was needed for an apparent contrast between the Bar Association attitude during the years 1990- 91 to the Respondent's alleged conduct in failing to discharge his legal and civic obligations to pay tax and its resolutions, made on 23 October 2001, 29 August 2002 and 31 July 2003 respectively, to cancel his practising certificate, make a complaint against him and institute these proceedings, it was sufficient to refer to the publication, on 31 August 2001, of the Court of Appeal's judgments in New South Wales Bar Association v Cummins (2001) 52 NSWLR 279; [2001] NSWCA 284 and New South Wales Bar Association v Somosi [2001] NSWCA 285. Those judgments (notably that of Spigelman CJ in the former case at 286 [29 – 30]), put beyond doubt the Court's view, which is binding on the Association and the Tribunal, that a taxpayer's civic obligations extend not only to the submission of tax returns but also to the payment of tax, and that failure by a barrister to comply with these obligations, which have a material connection to the conduct of his or her practice as a barrister, may constitute professional misconduct at common law. 2. A further event of significance in this regard was that the Legal Profession Amendment Act 2004, which relevantly commenced on 27 July 2001, both amended the definition of professional misconduct in section 127 ('for the avoidance of doubt') so as to designate the commission of a tax offence as a possible form of misconduct and inserted Division 1AA into Part 3 of the Act, whereby the Bar Association was empowered to cancel practising certificates on this ground. 3. Even if there was in 2001 an 'agreement or arrangement' between the then President of the Bar Association and the then Attorney General, it could not be assumed to have prompted the Association to institute these proceedings. This was for at least three reasons: (a) the Association's Constitution provided in clause 14 that its business was conducted by the Bar Council (being a body elected annually by the members), not by the President; (b) on 31 July 2003, the date of the Council's resolution that these proceedings should be instituted, Ms McColl was no longer the President; and (c) there was no doctrine of 'executive estoppel' whereby the Bar Council would consider itself bound by the actions of a past President. 4. Under section 155(2) of the LP Act, the Council was obliged to pass such a resolution, since it was satisfied after conducting the investigation required by section 148(1) that there was a 'reasonable likelihood' that the Respondent would be found guilty of professional misconduct or unsatisfactory professional conduct. As Spigelman CJ emphasised in Council of the New South Wales Bar Association v LI (2005) 64 NSWLR 603; [2005] NSWCA 415 at 607 [17], it had no option but to take this step. 5. The claim by the Respondent that under the alleged 'agreement or arrangement' the Bar Association would receive funding from the Government to enable it to take disciplinary proceedings against the barristers named in the article in the Sydney Morning Herald failed to take account of sections 69C, 69F and 69G of the LP Act. Relevantly, sections 69F(1)(a) and 69G(1)(i) provided for payment from the Public Purpose Fund (subject to the approval of the Director-General of the Attorney General's Department) of costs incurred by the Bar Association in exercising its functions under Parts 3 and 10 of the Act. Under section 69C, the assets of the Public Purpose Fund were to be held by four trustees, of whom three were appointed by the Attorney General and the fourth was the Director-General. 57 Ms Adamson acknowledged that there was authority (for example, Ex parte Clyne; Re Legal Practitioners Act (1969) 71 SR (NSW) 236 at 244; Ex parte Munro; Re Legal Practitioners Act (1969) 71 SR (NSW) 448 at 452) for the proposition that the attitude of a professional body such as the Bar Association was relevant to whether the conduct of a legal practitioner was such as to warrant removal from the roll by an order made in disciplinary proceedings. But she submitted that this attitude must be gauged by reference to the approach taken by the relevant body in the court or tribunal that hears the proceedings. It would be irrelevant, she said, that a different attitude was maintained at an earlier time. 58 Finally, Ms Adamson relied on the letter dated 24 April 2007 from Hicksons Lawyers to the Respondent (see [18] above) in opposing an argument put by the Respondent. This argument was that, on being served with the earlier summons, the Bar Association had produced a number of documents relating to its knowledge of events, involving the Respondent, that had occurred in Western Australia between 1987 and 2004, and must therefore have conceded the relevance of the documents sought in paragraphs (1) – (3) of the present summons. The documents so produced are referred to in Council of the New South Wales Bar Association v Archer (No 9) [2007] NSWADT 214 at [17], [21] and [22]. 59 Ms Adamson's response was that in the letter of 24 April 2007, Hicksons Lawyers had expressly stated that the Bar Association, although producing these documents, did not concede that they were relevant to any issue in the proceedings. The Respondent's submissions on relevance 60 As just mentioned, the Respondent's submissions included an argument that in producing a number of the documents sought in the earlier summons, the Bar Association had conceded the relevance of the documents sought in paragraphs (1) – (3) of the present summons. The basis of this argument has been sufficiently explained in the two preceding paragraphs of this judgment. 61 The Respondent's principal contention on the issue of relevance was that the documents sought clearly had 'adjectival' or 'apparent' relevance to his claim that the Bar Association had instituted and maintained these proceedings for the improper purpose of honouring an agreement or arrangement concluded in 2001 between the then President and the then Attorney General in order to demonstrate to the public, following publication of the Herald article, that the Government was 'doing something' about the barristers named in it. Since previously the Association had adopted the attitude (notably when considering the proceedings taken against the Respondent in Western Australia) that his conduct would not amount to professional misconduct, and since the case for removal from the roll that it could in fact mount against him was noticeably weaker than those brought successfully against other barristers named in the Herald article, the existence of an improper purpose of this nature was obviously an inference that could be drawn. 62 The Respondent submitted that if, with the aid of the documents sought in the summons, he could make good this assertion, two consequences might follow. One was that the Tribunal could take account of the Bar Association's purpose in bringing the proceedings when it sought to assess the Association's attitude to the conduct alleged against him, in the manner contemplated in the Association's own submission on this matter (outlined above at [58]). The other was that he could obtain a permanent stay of these proceedings, in accordance with principles stated by the High Court in Clyne v New South Wales Bar Association (1960) 104 CLR 186 and Williams v Spautz (1992) 174 CLR 509. Both of these possible consequences would be of major significance for these proceedings. Discussion and conclusions regarding relevance 63 The applicable law. In proceedings to set aside a subpoena or a summons to produce documents, an assertion of insufficient relevance is often linked with an assertion of oppressiveness. This was the case, for instance, in two earlier applications in these proceedings: see New South Wales Bar Association v Archer [2004] NSWADT 38 and Council of the New South Wales Bar Association v Archer (No 3) [2004] NSWADT 232. But the Bar Association has not claimed that the present summons is oppressive. 64 Accordingly, the only issue to be determined in relation to this ground of the Bar Association's application is the extent, if any, to which the test of a 'legitimate forensic purpose' laid down in Trade Practices Commission v Arnott's Ltd has been satisfied. This involves deciding whether it can be said of the documents sought in the summons that 'adjectival' or 'apparent' relevance exists with regard to all of them, some of them or none of them. Relevance will be established to the extent that documents called for 'could possibly throw light on the issues in the main case'. 65 In resolving this issue, I have found it necessary to dig a little deeper into the requirement of relevance than either of the parties did in their submissions. 66 The Federal Court held in Cosco Holdings Pty Ltd v Commissioner of Taxation (1997) 37 ATR 432 that the test laid down in Trade Practices Commission v Arnott's Ltd would not be satisfied if the potential relevance of the documents was merely 'speculative'. In that case, the Court made the following observation regarding the dictum of Beaumont J just quoted:- Notwithstanding the use of the word "possibly" in this paragraph, in my opinion, that word is not used in any speculative sense. I take his Honour's conclusion expressed in that paragraph as an acquiescence to the correctness of the submission that the material sought could reasonably be expected to throw light on some of the issues in the principal proceedings. It is not a question of looking at the documents to see if the documents might permit a case to be made. 67 In Treasurer of the Commonwealth of Australia v Canwest Global Communications Corp [1997] FCA 578, the Full Court of the Federal Court (Beaumont, Burchett and Emmett JJ) said in relation to the issue of relevance in the context of discovery orders:- A modern statement of the principle which has been repeatedly followed is that made by Brennan J (with whom Bowen CJ agreed) in WA Pynes Pty Ltd v Bannerman (1980) 41 FLR 175 at 181, where what is required to obtain a discovery order in a doubtful case was expressed as follows: sufficient is shown to ground a suspicion that the party applying for discovery has a good case proof of which is likely to be aided by discovery. … But even so low a barrier to discovery may not always impede an application, having regard to the law as stated in Australian Securities Commission v Somerville [(1994) 51 FCR 38] at 54). There the joint judgment states: "Whether it is appropriate to order discovery will depend upon the nature of the case and the stage of the proceedings at which discovery is sought: WA Pines per Brennan J at 181. The two cases [ Melbourne Home of Ford and WA Pines ] must be viewed in the light of their own facts." Where, in a case properly before the Court, a case that cannot be dismissed as an abuse of process, the pleadings raise an issue for decision to which a party's documents may be relevant, the Court will have a discretion to order discovery. The need to establish a basis for the suspicion described by Brennan J in WA Pines will generally be confined to the kind of case to which he was adverting. In the normal case, the pleadings will adequately ground the order. 68 In WA Pynes Pty Ltd v Bannerman (1980) 41 FLR 175 at 182, Brennan J's judgment contains the following passage within which the dictum just quoted is to be found:- In the present case, discovery is sought before there is a tittle of evidence to suggest that the Chairman did not have the requisite cause to believe which paragraph 6 of the statement of claim would put in issue. Some assistance was sought to be derived from cases where discovery had been given to a party before he was required to give particulars of his claim… but in cases of that kind there is either an anterior relationship between the parties which entitles one to obtain information from the other, or sufficient is shown to ground a suspicion that the party applying for discovery has a good case proof of which is likely to be aided by discovery. This is not such a case. This is a case where a bare allegation is made by paragraph 6 of the statement of claim and, the paragraph being denied, the applicant seeks to interrogate the Chairman and ransack his documents in the hope of making a case. That is mere fishing. As Smithers J said in Melbourne Home of Ford Pty Ltd v Trade Practices Commission , supra [(1979) 5 TPC 26] at 35; [(1979) ATPR 40] at 18,087: "In the absence of such evidence the proceeding is essentially speculative in nature. In such circumstances for the Court to assist the applicants by making available to them the processes of interrogatories and discovery would be to assist them in an essentially fishing exercise and from this the Court on established principles should refrain." His Honour's refusal of discovery was right and it ought not to be disturbed. 69 Some of the authorities just cited concerned discovery orders, not subpoenas or summonses to produce. But since they treated Trade Practices Commission v Arnott's Ltd as applicable, they implicitly indicated that the same test of relevance applied in these two contexts. 70 Further formulations of the applicable criterion for subpoenas and summonses to produce are to be found in Ritchie's Uniform Civil Procedure at [33.4.30]. Some of them – for example, a test of being 'necessary for disposing fairly of the proceedings', stated in Arhill Pty Ltd v General Terminal Co Pty Ltd (1990) 23 NSWLR 545 – are distinctly narrower than those just cited. 71 In the passages that I have quoted, attention is paid to not only to the meaning of 'relevance' but also to the question whether the issues to which the documents sought were claimed to be relevant, at least 'adjectivally', had already been raised in the pleadings and the accompanying particulars. This separate question must be investigated in the present case on account of the argument, put by Ms Adamson, that the Respondent's claim that these proceedings were instituted for an improper purpose was not included in his Reply to the Information and has not been formally raised in any separate application by him, such as an application for a permanent stay. It is convenient to consider this question first. 72 Are the issues to which the documents sought are claimed to be relevant, sufficiently raised already, or capable of being raised, within the present proceedings? According to the Respondent's submissions, this question should be answered in his favour. 73 One reason for this, he maintained, is that the Tribunal would be obliged to take account of the Bar Association's purpose in filing the Information when it sought to assess the Association's attitude to the conduct alleged against him. 74 Broadly speaking I agree, however, with Ms Adamson's response to this contention. Even though, as she conceded, the Respondent could seek leave in an amended Reply to include a contention that the Information had been filed and the case pursued for an improper purpose, it is doubtful whether such leave should be granted, for the following two reasons. 75 In the first place, evidence suggesting that at some time before the decision to file the Information the Association considered that the Respondent's alleged behaviour did not constitute professional misconduct is irrelevant to the issues that the Tribunal is required by Part 10 of the LP Act to determine when exercising its jurisdiction in relation to the Information. Those issues are initially defined by the statement in section 167(2) that the Tribunal 'is to conduct an inquiry into each allegation particularised' in the Information. In addition, the Tribunal must decide, in the light of its inquiry, whether any conduct alleged and proved against the Respondent amounts to a disciplinary 'offence' and, if so, whether that 'offence' is professional misconduct or unsatisfactory professional conduct. If the proceedings were to reach the stage where one or more orders under section 171C by way of penalty must be considered, the attitude of the Bar Association regarding the nature of the conduct proved would be relevant. But the only attitude to be taken into account would be that held by the Association at or after the time when it decided to file the Information. 76 Secondly, the Bar Association's attitude to this matter at the time of its Council's resolution to file the Information must be assumed, in the context of hearing the Information, to be in conformity with the resolution. This resolution stated, as required by section 155(2) of the LP Act, that the Council was satisfied of the 'reasonable likelihood' that the Tribunal would find the Respondent guilty of professional misconduct. 77 In fact, the appropriate way for the Respondent to 'inject' (for want of a better word) into the proceedings his claim that they have been instituted and/or maintained for an improper and collateral purpose is the alternative one that he himself suggested: that of making a separate application for an order permanently staying the hearing of the Information. 78 It is well established that the Supreme Court has jurisdiction to make such an order. It may be that the Tribunal also has jurisdiction. But the issue of whether an order should be made cannot be said to be an issue arising within the proceedings as whole until an application has been filed in one or other of these forums. 79 This matter is important because in the authorities cited above at [65 – 71] attention is consistently paid to whether or not the 'forensic purposes' underlying a summons to produce or an application for a discovery order bear a relationship to issues that are already 'live' in the proceedings. Even the comparatively broad formulation of 'adjectival' relevance in Trade Practices Commission v Arnott's Ltd refers to relevance to 'the issues in the main case'. In Treasurer of the Commonwealth of Australia v Canwest Global Communications Corp, it was regarded as important that the issues in question had already been raised in the pleadings. 80 It is not disputed that the Respondent could seek to deal with this apparent problem by applying for a permanent stay. But in doing so, he would be invoking a jurisdiction that the High Court has described as 'one to be exercised only in the most exceptional circumstances'. He would have to discharge the 'heavy' onus of proving that the sole purpose, or at least the 'predominant' purpose, for which the Bar Association has filed the Information and pursued its case against him is the improper and collateral purpose that he has delineated. Authority for these propositions is to be found in the judgment of Mason CJ and Dawson, Toohey and McHugh JJ in the case (cited by the Respondent) of Williams v Spautz (1992) 174 CLR 509 at 529. 81 It appears to me that one reason why their Honours chose to characterise this onus as 'heavy' is that an allegation that a litigant has commenced proceedings for an improper purpose is an allegation of seriously improper behaviour. This is particularly true when, as is the case with the Bar Association, the litigant is an institution charged by the law with important responsibilities relating to the maintenance of professional standards. It is well established, in a line of authorities including the leading case of Briginshaw v Briginshaw (1938) 60 CLR 336, that where a matter alleged in civil proceedings is one of significant gravity, the strength of the evidence required to establish it will be greater than would otherwise be necessary. As the High Court said in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449 at 449-450:- The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary "where so serious a matter as fraud is to be found". Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct. 82 I regard this line of authority as more directly relevant here than cases such as VDAE v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1557 (which was cited by Ms Adamson) dealing with the duty of advocates to refrain from alleging serious impropriety without proper grounds for doing so. 83 In summary, my principal conclusions on the topic canvassed in this part of my reasons are as follows:- 1. In determining relevance, consideration must be given to whether the issues to which the documents sought are claimed to be relevant have been or might be raised within the proceedings. 2. The issues to which the Respondent claims the documents sought by him to be relevant are not issues raised in the proceedings in their current form. 3. It is doubtful whether any application by him to include these issues in an amended Reply should be granted. 4. If he were to make a separate application for an order permanently staying the Tribunal's hearing of the Information on the ground that the sole purpose or predominant purpose for which the Bar Association has commenced and pursued its case on the Information is an improper and collateral purpose, these issues would have been raised within the proceedings as thus enlarged. But he would bear a heavy onus, and the order sought by him would be one that should only be made in 'the most exceptional circumstances'. 84 Has 'adjectival' relevance been established? In determining this question, it is important to take account of the fact that, as the Respondent acknowledges, he has as yet no independent evidence supporting the proposition that he wishes to establish: namely, that the Bar Association has filed the Information and pursued its case against him in order to honour an agreement or arrangement made between its then President and the then Attorney General in 2001. If such independent evidence had been put before the Tribunal, it would follow, I think, that the likelihood of finding support for it in the documents sought would be greater. But as matters stand, the Respondent cannot offer any evidence suggesting (a) that any such agreement or arrangement was ever made, or (b) that the Bar Association's decisions to file the Information and pursue its case against him were prompted in any way by such an agreement or arrangement. 85 In the absence of any evidence supporting these two fundamental components of the claim foreshadowed by the Respondent, it is important to consider the degree of likelihood that this claim might nonetheless be correct. As I view the matter, such likelihood is diminished to the extent that reasons other than those alleged by the Respondents can be found for the Bar Association's decisions. To put this point in another way, if there was no other apparent reason why the Association took these decisions, one would be more inclined to think that the explanation offered by the Respondent was or might be correct and that the documents sought by the summons might 'throw light upon' aspects of the proceedings by providing support for this explanation. 86 In this connection, a matter of major significance is the force of Ms Adamson's argument that the apparent change in the Bar Association's attitude towards the Respondent's alleged failures to meet his tax obligations was attributable in significant measure to two key Court of Appeal decisions delivered in August 2001, namely, New South Wales Bar Association v Cummins (2001) 52 NSWLR 279; [2001] NSWCA 284 and New South Wales Bar Association v Somosi [2001] NSWCA 285 (see [57] above). I agree with this argument. In my opinion, these decisions, by confirming in an emphatic manner that a barrister's breaches of legal and civic obligations to pay income tax would in certain circumstances amount to professional misconduct, left the Association in no doubt that, where evidence of behaviour of this nature came to its notice, it was obliged under Part 10 of the LP Act to embark on the course of conduct that it in fact carried out with regard to the Respondent: i.e., making and investigating a complaint and then, if the conditions laid down in section 155(2) were satisfied, filing an Information alleging professional misconduct and pursuing its case against him. 87 The Respondent sought to rebut this argument by claiming that these two decisions, dealing as they did with barristers who committed offences under tax law, did not apply to barristers against whom only an allegation of failure to pay tax could be made. But I accept Ms Adamson's submission that the Court of Appeal's judgments (notably that of Spigelman CJ in Cummins) strongly suggested that both of these types of behaviour could amount to professional misconduct, because of the emphasis placed on 'civic', not merely legal, obligations with regard to the payment of tax. Accordingly, the Bar Association could not be said to have misapprehended the impact of these judgments in believing that a case founded on breaches of these civic obligations resulting in failure to pay tax would succeed in appropriate circumstances, even though no offences under tax law were alleged to have been committed. The correctness of this belief was in fact confirmed in 2007 by the decision of the Court of Appeal in Davison v Council of the New South Wales Bar Association [2007] NSWCA 227. 88 The Respondent contended also that the case brought against the barrister (William Davison) in the decision just mentioned was 'far more serious' than any case that could be brought against him. He did not however indicate what aspects of the two proceedings might support this proposition. At the present stage of these proceedings, an assessment of its correctness is not feasible. But even if true, it would not greatly assist the Respondent in the present context. The crucial aspect of the Davison proceedings is that the Court of Appeal's judgments vindicated the Bar Association's opinion, based at least in part on the judgments in Cummins and Somosi, that breaches by a barrister of his or her civic obligations regarding the payment of tax would, in appropriate circumstances, amount to professional misconduct. That opinion was an important component of the legal basis for the Information. 89 I consider the following to be additional factors diminishing the likelihood that the Bar Association's decision in October 2003 to institute these proceedings was based on some 'agreement or arrangement' made in 2001 between its then President and the then Attorney General: (a) the Constitution's vesting of power to conduct the Association's business in the Bar Council, not the President; (b) the fact that the Association had different Presidents in 2001 and 2003; (c) the obligation imposed by section 155(2) of the LP Act on the Association to proceed when the requisite conditions were satisfied; and (d) the irrelevance of any alleged promise by the Attorney General to pay the Association's costs, given that sections 69C, 69F and 69G provided for them to be paid from the Public Purposes Fund (to the extent that they were not paid by the Respondent pursuant to an order under section 171E). 90 For these reasons, I consider that the material put before me does not suggest that the documents sought in the summons are likely to provide support for the allegations regarding the Bar Association's conduct that the Respondent has made. 91 My conclusions regarding relevance. The upshot of this discussion may be summarised as follows. The Respondent seeks documents about which the following can be said:- (a) The issues to which he says these documents have 'adjectival' relevance are not issues that have already been raised in the proceedings. (b) It is doubtful whether any application by him to raise these issues in an amended Reply should be granted. (c) If the Respondent applied for a permanent stay of the hearing of the Information on grounds that he has foreshadowed, these issues would have been raised by him within the proceedings as thus enlarged. (d) The onus that he would have to discharge in proving the matters alleged in these grounds, so as to warrant the exercise of the exceptional jurisdiction to grant a permanent stay, is a heavy one. (e) The Respondent acknowledges that at present he can advance no evidence in support of these allegations. (f) It cannot be said that the documents sought in the summons are likely to provide support for these allegations. 92 In view of all these factors, I consider that 'adjectival' or 'apparent' relevance, within the framework of principles to be derived from the case law, cannot be discerned. The summons has a clearly speculative character, there is no direct link between its alleged 'forensic purposes' and the issues currently arising in the proceedings and the achievement of these 'forensic purposes' requires the filing of a separate application and the discharge of a heavy onus of proof. 93 I am encouraged in this conclusion by the thought that if the requirement of relevance was to be treated as satisfied in situations like this one, the way would be open for defendants in civil proceedings to delay the hearing by employing a very simple strategy. All they would have to do is to assert that the proceedings had been instituted for some improper purpose or purposes – without having any evidence to support this assertion and without necessarily believing that it was true – and to apply for the issue of a subpoena or summons requiring the plaintiff to produce documents within a specified range which might conceivably disclose the purpose or purposes alleged. 94 I am not saying that this is a precise account of what the Respondent did in this case. I am saying, however, that if the law did not require that this application by the Bar Association should be upheld on grounds of insufficient relevance, the distinctly undesirable consequence that I have just outlined would seem to follow. The orders to be made 95 In view of my decision on the matter of relevance, it is not necessary for me to consider a subsidiary ground advanced by the Bar Association, namely, that it was entitled to claim legal professional privilege with respect to the documents listed in paragraphs (6) and (7) of the Schedule to the summons. 96 For the foregoing reasons, the summons to produce documents dated 12 August 2008 and addressed to the Applicant in these proceedings is set aside. 97 The costs of this application are reserved. 98 These proceedings are set down for further directions at 9.30 a.m. on Tuesday 2 December 2008. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.