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

Reported Decision: 72 NSWLP 236

New South Wales Court of Appeal

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

HEARING DATE(S): 12 May 2008

JUDGMENT DATE: 18 July 2008

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

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

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

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