Council of the New South Wales Bar Association v Archer [2004] NSWSC 1089 | Case summary

REASONS FOR DECISION INTRODUCTION 1 On 9 October 2003, the Council of the Bar Association of New South Wales 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the Legal Profession Act 2004, this case falls wholly to be determined wholly under the LP Act even though it has been repealed: see Legal Profession Act 2004, Schedule 9, clause 15. 3 Although, strictly speaking, the Informant in these proceedings is the Council of the New South Wales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, we will refer to it from now on as 'the Bar Association'. We will use the term 'Bar Council' where its existence as an entity distinct from the Bar Association is of significance. 4 The Bar Association alleges that the Respondent, a legal practitioner within the meaning of s. 128 of the LP 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 LP Act. 5 The Bar Association relies on two grounds, which are set out in the First Schedule to the Information. It is not necessary here to refer to their content, except to say that they relate to alleged conduct of the Respondent in the financial years ranging from 1987-88 to 2001-02. 6 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. 7 On 23 October 2001, the Bar Council resolved that the Respondent's practising certificate should be cancelled. 8 The complaint from which these proceedings stem was made by resolution of the Bar Council on 29 August 2002. The resolution by the Bar Council that these proceedings should be instituted was passed on 31 July 2003. 9 Since the Information was filed, there have been several interlocutory applications, resulting in a number of decisions that we, as the three members constituting the Tribunal in these proceedings, have delivered. Some of these will be mentioned later in this judgment. 10 The present decision deals with three further applications made by the Respondent. Relevant facts 11 On 14 February 2007, the Bar Association filed in the Tribunal an affidavit sworn on the previous day by Mr Philip Selth, its Executive Director. 12 The annexures to this affidavit comprised copies of the following documents; a certificate by the Legal Practitioners Admission Board regarding the Respondent's admission as a solicitor on 4 June 1971, then as a barrister on 5 September 1980; the resolution by the Bar Council on 29 August 2002 making the complaint against the Respondent; a resolution on 16 December 2002 by the Bar Council under s. 137(2) of the LP Act, to the effect that the complaint should be dealt with even though it related in part to alleged conduct occurring more than three years previously; a report of a Professional Conduct Committee of the Bar Association, dated 22 July 2003, to the Bar Council; and the Bar Council's resolution of 31 July 2003 to institute these proceedings. 13 Exhibited to Mr Selth's affidavit and marked 'PAS1' was material described in it as 'a bundle of correspondence from the file of the Bar Council relating to' the complaint. The dates on the correspondence in PAS1 ranged from 3 April 2001 to 21 August 2003. 14 Most of this correspondence was between the Bar Association and the Respondent. But there was also correspondence between the Bar Association and the following organisations: the Registrar, District Court of New South Wales; Ferrier Hodgson, who were the Respondent's trustee in bankruptcy; and the Legal Services Commissioner. In addition, the exhibit contained copies of (a) a report dated 12 June 2003, apparently prepared by a Professional Conduct Committee, to the Bar Council; (b) a statutory declaration relating to the service of the complaint on the Respondent; and (c) the transcript of proceedings in the Federal Court of Australia in which the Respondent and his wife were separately examined on 19 February 2003 and 4 April 2003 respectively. 15 The ensuing account of relevant later events is principally drawn from an affidavit (with annexures) sworn by the Respondent on 25 June 2007. This affidavit was admitted without objection at the hearing, held on 27 June 2007, of the applications with which this judgment is concerned. 16 On 22 February 2007, on the application of the Respondent, the Tribunal issued two summonses to produce documents under s. 84 of the Administrative Decisions Tribunal Act 1997 ('the ADT Act'). The persons to whom the summonses were addressed were, respectively, the Proper Officer of the Bar Association and Mr Dennis John Robertson. 17 The categories of original or copy documents required to be produced under the summons addressed to the Bar Association were defined as follows in the Schedule:- 1. Each application for a practising certificate lodged with the Bar Association by the Respondent between 1 January 1984 and 30 June 2001. 2. All correspondence passing between the Bar Association (or any person on its behalf) and the Barristers Board of Western Australia (or any person on its behalf) between 1 July 1987 and 9 October 2004 concerning or referring to the Respondent. 3. All correspondence passing between the Bar Association (or any person on its behalf) and the Australian Taxation Office (or any person on its behalf) between 1 July 1987 and 9 October 2004 concerning or referring to the Respondent. 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. 18 It is convenient to label documents within these four categories as follows: 'certificate applications', 'WA documents', 'ATO documents' and 'internal documents'. The first of these categories is non-controversial. 19 The four disputed categories of documents that were required to be produced by Mr Robertson are set out below. 20 On 27 February 2007, the two summonses were served. 21 On 21 March 2007, Hicksons, who are the solicitors for the Bar Association, wrote to the Respondent indicating as follows: (a) that the Bar Association had produced documents in response to the summons addressed to its proper officer; (b) that it wished the Respondent to 'explain the relevance' of the documents specified in clause 2 of the Schedule to this summons; (c) that it had not produced any documents which were 'non-compellable by operation of Section 171R' of the LP Act; and (d) that it claimed client legal privilege in relation to all the documents that had been produced by Mr Robertson. 22 Pursuant to leave granted by the Registrar on 23 March 2007, the Respondent inspected the documents produced by the Bar Association. Classified by reference to the four clauses of the Schedule to the summons, these documents were copies of the following:- (1) Certificate applications : applications by the Respondent for practising certificates between 1988 and 2001, together with the certificates issued. (2) WA documents: (a) six letters (one of which was edited or - to use the terminology employed by the Bar Association - 'redacted'), passing between the Bar Council and the Legal Practitioners Disciplinary Tribunal of Western Australia or the Legal Practitioner Complaints Committee of Western Australia, within the period from 9 July 2001 to 22 May 2002; and (b) various decisions relating to the Respondent and bearing dates between 9 March 1990 and 22 April 1997, given in the Full Court of the Supreme Court of Western Australia, the Federal Magistrates Court and the Legal Practitioners Disciplinary Tribunal of Western Australia. (3) ATO documents: a redacted letter dated 9 March 2001 from the Bar Association to the Commissioner of Taxation. (4) Internal documents: the minutes (in most instances, substantially redacted) of (a) four meetings of the Bar Council, (b) one meeting of its Executive Committee (together with an accompanying letter from the Barrister to the then President of the Bar Association) and (c) 17 meetings of a Professional Conduct Committee of the Bar Association, all bearing dates within the period from 28 February 2001 to 10 October 2001. 23 On 5 April 2007, the Respondent filed an application for the following orders relating to the summons served on the Proper Officer of the Bar Association:- (1) that the Bar Association's claim to be entitled to withhold documents from production by virtue of s. 171R (the text of which appears below) be disallowed; (2) that the Bar Association be ordered to produce all documents specified in the summons; and (3) that the Respondent be permitted to inspect and copy these documents. 24 On the same day, the Respondent also applied for the following orders in relation to the summons served on Mr Robertson:- (1) that the Bar Association's claim to privilege in respect of the documents produced by Mr Robertson be disallowed; and (2) that the Respondent be permitted to inspect and copy these documents. 25 On 10 April 2007, the Bar Association filed an application for an order setting aside paragraph 2 of the Schedule to the summons addressed to its Proper Officer. But in a letter dated 24 April 2007 to the Respondent, and at a directions hearing held two days later, it indicated that it no longer wished to proceed with this application. 26 On 26 April 2007, the Respondent filed an application for an order that the Bar Association, by its Proper Officer, be examined as to its compliance with the summons that had been served on it. 27 In a letter dated 3 May 2007 to Hicksons, the Respondent claimed that in consequence of his inspection of the produced documents he had formed the view that the Bar Association had not produced all the required documents. He set out some reasons why this appeared to be the case. 28 In this letter, the Respondent also asked that his 'request' in paragraph 2 of the Schedule to the summons addressed to the Bar Association should be extended to include copies of all notes and memoranda recording or referring to telephone conversations between representatives of the Bar Association and representatives of the Barristers Board of Western Australia or the Legal Practice Board of Western Australia between 1 July 1987 and 9 October 2004. 29 In a letter dated 20 June 2007 to the Respondent, Hicksons enclosed copies of four documents (two file notes and two email messages) in answer to this request. The dates of these documents ranged between 16 January and 22 May 2002. They all fell within the category of WA documents. In the same letter, Hicksons also enclosed a copy of a fax within this category, dated 22 May 2002, which the Bar Association had found while searching its records. 30 In this letter, Hicksons also referred to the possibility that some WA documents and ATO documents had been held by the Bar Association in a file that was now missing. This was in response to the Respondent's claim in his letter of 3 May 2007 that not all the required documents had been produced. 31 In a reply to this letter dated 25 June 2007, the Respondent stated that he did not believe the 'missing file' explanation for what he called 'the Informant's inability to produce documents that it is bound to produce'. 32 Attached to the Respondent's affidavit of 25 June 2007 were copies of three letters (dated 26 June 1990, 7 April 1992 and 28 April 1992 respectively) from the Barrister's Board of Western Australia to the Bar Association or its President. The Respondent pointed that these letters had been produced by the Barrister's Board to the Tribunal in response to a summons addressed to it, but had not been produced by the Bar Association despite being WA documents within the scope of the summons addressed to it. 33 At the hearing on 27 June 2007 relating to these three applications by the Respondent, we admitted into evidence his affidavit of 25 June 2007 and heard oral argument, relating principally to the first of the applications. Subsequently, both parties filed written submissions relating to all three applications. THE APPLICATION FOR PRODUCTION OF FURTHER DOCUMENTS Relevant provisions and case law 34 Relevant provisions of the LP Act. 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. 35 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'. 36 Brief mention should also be made of s. 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 s. 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'. 37 The topics dealt with in Part 10 of the LP Act include the following: the meaning of professional misconduct and unsatisfactory professional conduct; complaints about legal practitioners; investigation of complaints; dealing with complaints following investigation; and disciplinary applications to the Tribunal. 38 The interpretation of s. 171R The only authority providing significant guidance on s. 171R is Murray v Legal Services Commissioner (1999) 46 NSWLR 224; [1999] NSWCA 70. We drew the parties' attention to this case in the course of the hearing. In it, the Court of Appeal held that the failure by the Legal Services Commissioner to provide to a solicitor, Mr Craig Murray, a copy of a complaint made against him under the LP Act and to give him an opportunity to respond to the complaint vitiated subsequent disciplinary proceedings brought against him under Part 10 in the Legal Services Tribunal (the predecessor of this Division). 39 In the Court of Appeal proceedings, which Mr Murray instituted by summons, two items of evidence tendered and relied on by the Commissioner were (a) the testimony of Mr Christopher Keher (a solicitor employed by the Commissioner) relating to a telephone conversation with Mr Murray on 21 February 1997 and (b) a letter dated 21 March 1997 from the Commissioner to Mr Murray. 40 Before the matter came on for hearing, Mr Murray applied for order that the Commissioner produce six specified documents held in the Commissioner's file on the complaint. The Commissioner resisted this application, relying on s. 171R. The Court dismissed the application with costs. 41 In giving judgment in the substantive proceedings, Sheller JA (with whom Priestley and Stein JJA agreed) set out at pp 239-241 (paras [60 - 64]) the following reasons for the decision to dismiss the application:- 60 Mr Murray submitted that once the Commissioner had elected to give evidence he could not decide which questions to answer or which documents to produce in reliance on s171R. Counsel relied on R v Adams (1965) VR 563. The Full Court of the Supreme Court of Victoria held that an accused person who had elected, on his trial, to give evidence on oath under s399 of the Crimes Act 1958 (Vic) could be asked and was obliged to answer any question which was relevant to any issue before the Court and any question which might go to his credit and could be compelled to produce relevant documents which were in his custody or under his control. 61 In addition, Mr Brereton relied upon the principle of fairness adumbrated in Attorney General for the Northern Territory v Maurice & Ors (1986) 161 CLR 475. That case concerned the circumstances in which a person might be said to have waived legal professional privilege. There being no actual intention to waive privilege in particular documents, Gibbs CJ at 481 said: "whether a waiver should be implied depends on whether it would be unfair or misleading to allow a party to refer to or use material and yet assert that that material, or material associated with it, is privileged from production." At 487-8 Mason and Brennan JJ said: "An implied waiver occurs when, by reason of some conduct on the privilege holder's part, it becomes unfair to maintain the privilege. The holder of the privilege should not be able to abuse it by using it to create an inaccurate perception of the protected communication. Professor Wigmore explains: '[W]hen his conduct touches a certain point of disclosure, fairness requires that his privilege shall cease whether he intended that result or not. He cannot be allowed, after disclosing as much as he pleases, to withhold the remainder.' (Wigmore, Evidence in Trials at Common Law (1961), Vol 8, para 2327, p636) In order to ensure that the opposing litigant is not misled by an inaccurate perception of the disclosed communication, fairness will usually require that waiver as to one part of a protected communication should result in waiver as to the rest of the communication on that subject matter: see Greater Atlantic Assurance Co v Home Insurance Co (1981) 1 WLR 529. Hence, the imputed waiver inquiry is at bottom focused on the fairness of imputing such a waiver." See also per Deane J at 492-3 and per Dawson J at 497-8. 62 The six documents production of which was resisted do not appear to me to be related to any material relied upon by the Commissioner in these proceedings, namely his letter of 21 March 1997 dealing with his duty to keep the complainant informed of the course of the investigation and the conversation between Mr Keher and Mr Murray advising Mr Murray that the complaint had been lodged against him and telling him about that complaint. I am not persuaded that the Commissioner's refusal to allow Mr Murray inspection of the six documents gives rise to any unfairness in the conduct of the proceedings before this Court. The six documents are not referred to in any of the material before the Court in the proceedings. Accordingly, assuming, if the Commissioner is properly to administer the Act, (compare s171P (c) (sic) of the Act) that he can waive the protection conferred by s171R, he has not waived that protection in respect of the six documents and s171R means that he is not compelled to produce them in these proceedings. 63 Had there been a document connected by reference or subject matter to Mr Keher's telephone conversation with Mr Murray of 21 February 1997 or the letter sent as the result of it or the terms of the complaint, the subject of the conversation, there would be much to be said for the proposition that as a matter of fairness the Court would not permit the Commissioner on the one hand to rely on the file note and on the other to call in aid s171R to refuse to produce that related or connected material. I do not accept that, simply by calling evidence, the Commissioner waives his right to rely on s171R or should in fairness be required to produce all the other documents in his file. So to hold would ignore the plain language of s171R. It is quite different to say that if the Commissioner wishes to rely upon documents that he cannot be compelled to produce, he should not be permitted to do so in an unfair way by relying on the section not to produce other documents which touch upon the same matter. 64 No doubt the legislature intended that where the Commissioner has begun proceedings pursuant to the Act his reliance on s171R should be a fair and reasonable reliance which does not interfere with the just and fair hearing of the proceedings he has instituted. There is nothing to suggest that he has acted otherwise in respect of the particular documents the production of which he here resisted. Accordingly, the Court upheld his claim not to produce the documents… The Respondent's primary submissions 42 The principal argument put by the Respondent. The Respondent, who appeared in person, relied mainly on an argument to the following effect. Since the Bar Association had already produced in these proceedings many documents that might fall within the scope of s. 171R, the considerations of fairness outlined by Sheller JA in Murray required it to produce any remaining documents in its possession that fell within the scope of the summons addressed to it. 43 In developing this argument, the Respondent advanced the following propositions. First, by quoting from the High Court's judgments in Attorney General for the Northern Territory v Maurice, Sheller JA made it clear that the protection conferred by s. 171R was a species of privilege, which was open to waiver and would indeed be treated as waived by implication in cases where, on account of conduct by the holder of the privilege, it had become unfair for him or her to maintain the privilege. Secondly, in assessing whether it was fair for the Bar Association in the present circumstances to seek to maintain this statutory privilege, we should take account both of the documents that it had produced to the Tribunal before the summons was issued - notably in exhibit PAS1 - and of the documents that it produced in response to the summons. Thirdly, the Bar Association's refusal, through its solicitors, to identify the documents that it withheld in reliance on s. 171R, made it especially difficult for the Respondent to know whether any of the withheld documents might assist his case. 44 In addition to Murray and Maurice, the Respondent relied on the judgment of Deane, Dawson and Gaudron JJ in Goldberg v Ng (1995) 185 CLR 83. At 95-96, their Honours stated:- The circumstances in which a waiver of legal professional privilege will be imputed by operation of law cannot be precisely defined in advance. The most that can be done is to identify a number of general propositions. Necessarily, the basis of such an imputed waiver will be some act or omission of the person entitled to the benefit of the privilege. Ordinarily, that act or omission will involve or relate to a limited actual or purported disclosure of the contents of the privileged material. When some such act or omission of the person entitled to the benefit of the privilege gives rise to a question of imputed waiver, the governing consideration is whether "fairness requires that his privilege shall cease whether he intended that result or not". 45 At 96-97, their Honours quoted from Maurice the passages quoted or referred to by Sheller JA in the above extract from Murray. 46 The alternative argument put by the Respondent. In the alternative, the Respondent maintained that s. 171R, as a matter of construction, did not apply to proceedings in the Tribunal brought by the Bar Association (or, under the same reasoning, by the Law Society or the Legal Services Commissioner) under Part 10 of the LP Act. The proceedings that it governed were instead proceedings that 'called into question' any processes that had taken place under Part 10. 47 The Respondent advanced two grounds in support of this submission. First, since the applicant in proceedings such as these must necessarily disclose some documents and adduce some evidence falling within the scope of the section, treating the section as applicable would have the absurd result of permitting the applicant to choose what material it would disclose and what material it would conceal. Secondly, the list of persons in s. 171Q included bodies and individuals - for example, the Tribunal, a member of the Tribunal or the Registrar of the Tribunal - who could not possibly be able to give relevant evidence in disciplinary proceedings instituted under Part 10 but might well be able to give such evidence when proceedings of this nature were 'called into question'. The Bar Association's submissions 48 Mr Garling SC, appearing with Mr Gregg for the Bar Association, sought to rebut the Respondent's principal argument by arguing that, despite the exposition of s. 171R given by Sheller JA in Murray v Legal Services Commissioner, it was incorrect in the present context to treat the section as conferring a 'privilege' that was open to waiver. 49 In support of this contention, he advanced the following line of argument: (a) the Tribunal's powers to summon witnesses and to compel the production of documents are expressly conferred by ss. 83 and 84 of the ADT Act; (b) the effect of s. 171R is to restrict its powers under these two sections; (c) the Tribunal is a statutory tribunal whose powers cannot exceed those conferred expressly or impliedly by statute; (d) a restriction on its powers such as s. 171R imposes therefore cannot be subject to considerations of fairness such as were outlined by Sheller JA in Murray. In his oral submissions, Mr Garling crystallised this argument in the proposition that s. 171R 'simply says' that 'a person of the requisite kind is … not subject to the power to require the production of documents'. 50 By contrast, Mr Garling submitted, the provisions (ss. 118 and 119) in the Evidence Act 1995 dealing with client legal privilege created 'a bar to adducing evidence which is conditional upon an objection being taken by a client' and therefore would only operate if the client chose to take the objection and the court or tribunal ruled that it was well founded. 51 Secondly, Mr Garling argued that Sheller JA did not in fact state that the protection conferred by s. 171R could be waived. Instead, in the last sentence of paragraph [62], his Honour went no further than to make an assumption to this effect. 52 A further submission by Mr Garling was that Sheller JA treated these considerations of fairness, restricting reliance on s. 171R, as applicable only to the evidence to be adduced at the substantive hearing of the relevant proceedings. They did not apply to the present circumstances, since the evidence on which the Bar Association would rely at the substantive hearing had not been identified. Mr Garling summed up this submission as follows: 'Murray was essentially concerned with the procedural fairness of the selective adducing of evidence in support of the case to be run at the substantive hearing.' He drew our attention in particular to Sheller JA's references in paragraphs [62] and [63] to particular items of evidence being relied on by the Legal Services Commissioner in the proceedings before the Court. 53 Referring to s. 123 of the LP Act, which sets out the general objects of Part 10, Mr Garling argued also that s. 171R served the public interest through permitting the Bar Association and the Law Society to investigate complaints against legal practitioners without being hindered by the prospect of having to produce documents arising from or related to their investigations. 54 In replying to the Respondent's argument that the Bar Association had already produced numerous documents falling within the range defined in s. 171R and was therefore obliged to produce all remaining documents required by the summons, Mr Garling made four submissions. 55 First, he argued that the documents required to be produced under the summons bore no apparent relation to the evidence already filed by the Bar Association. 56 His second argument was that these documents bore no apparent relation to any identified issue in the proceedings. 57 Thirdly, with reference to the documents that had been produced in response to the summons, he argued that s.171R permitted them to be selected or redacted in such a way as to exclude all 'Part 10 documents' and 'Part 10 considerations' and that, except in one instance, they had in fact been so selected or redacted. Implicitly, he treated the 'Part 10 documents' and 'Part 10 considerations' in the present case as documents and 'considerations' bearing upon the making or the investigation of the complaint against the Respondent or the institution or maintenance of these proceedings. With specific reference to the internal documents that had been produced, he pointed out that they related to the Bar Association's resolution of 23 October 2001 to cancel the Respondent's practising certificate, adding that the minutes had been redacted so as to remove 'references to Part 10 considerations'. 58 The one document produced that might, in Mr Garling's submission, have been a 'Part 10 document' was a letter dated 9 March 2001 from the Bar Association to the Commissioner of Taxation. It contained a request that the Commissioner should furnish copies of documents that were on the public record relating to a number of barristers, including the Respondent, who had been mentioned in a recent article in the Sydney Morning Herald. It was 'redacted', seemingly by the deletion of the names of one or more other barristers about whom the Association sought information from the Commissioner. Mr Garling submitted that if, contrary to his primary argument, the protection conferred by s. 171R could be waived, the production of this single letter could not be held to have constituted a waiver. 59 Fourthly, with reference to the documents contained in PAS1, Mr Garling argued that their production to the Tribunal could not constitute a waiver because it had been effected in discharge of the Bar Association's obligations, as the Informant in these proceedings, under rule 25 of the Administrative Decisions Tribunal (Interim) Rules 1998. He submitted that since a defect in the jurisdiction of a statutory tribunal cannot be cured by the consent of the parties, the Tribunal would have lacked jurisdiction in these proceedings if Mr Selth's affidavit, including its annexures and the material in PAS1, had not been filed. 60 Rule 25 states:- 25 Accompanying affidavit (1) If an informant lodges an information with the Tribunal, the informant must at the same time lodge with the Tribunal an affidavit sworn by a competent person on the informant's behalf containing particulars that are sufficient to: (a) identify the author of the complaint to which the information relates and describe briefly the allegations of unsatisfactory professional conduct or professional misconduct on which the complaint is based, and (b) describe briefly the action taken by the informant to investigate the complaint, and (c) identify: (i) any person who investigated the complaint, or matters associated with it, and on whose evidence the informant relies, and (ii) the reports or other documents relating to the investigation which the informant intends to tender in evidence, and (d) establish, for the purposes of section 128 of the Legal Profession Act 1987 , that the person who is the subject of the complaint was a legal practitioner to whom Part 10 of the Legal Profession Act 1987 applies, at the time when the alleged professional misconduct, or unsatisfactory professional conduct, occurred. (2) The informant must lodge with the information and the affidavit required by subrule (1): (a) true copies of the reports and other documents, if any, referred to in subrule (1) (c) (ii), identified as exhibits to that affidavit, or (b) an affidavit by the person who conducted the relevant investigation annexing copies of the reports and other documents. 61 Finally, Mr Garling advanced two propositions in reply to the Respondent's alternative argument - i.e., that s. 171R did not apply at all to proceedings brought in the Tribunal under Part 10. These were (a) that the terms of the section did not restrict its scope in this way, either expressly or by implication, and (b) that the phrase 'proceedings before the Tribunal' in the section was clearly intended to include Part 10 proceedings, since very few other types of proceeding under the LP Act were conducted in the Tribunal. The Respondent's submissions in reply 62 The Respondent's submissions in reply included answers to three components of the argument advanced by Mr Garling. 63 First, the Respondent disputed the proposition that the considerations of fairness canvassed by Sheller JA in Murray only became operative when the substantive hearing commenced. The Respondent pointed out that if this were a correct interpretation of his Honour's observations there would be a high risk of disruption of this hearing. At this hearing, the Tribunal would be asked, for the first time, to determine whether the prior disclosure of documents by the Bar Association, through (for instance) the filing of Mr Selth's affidavit together with the material in PAS1, amounted to a waiver of its protection under s. 171R. With reference to this affidavit, the Respondent submitted that both he and the Tribunal should be entitled to assume that it would be read at the hearing. Accordingly, it should be in interlocutory proceedings, not at the substantive hearing, that the implications of its having been filed should be determined. 64 Referring to the first sentence of paragraph [64] of Sheller JA's judgment, the Respondent maintained that if this approach were not adopted, the Bar Association's reliance on s. 171R would indubitably 'interfere with the just and fair hearing of the proceedings' that it had instituted. 65 Secondly, the Respondent submitted that the relevant considerations of public interest in this situation were not confined to those mentioned by Mr Garling. They also included the important consideration that a litigant should not be permitted to proceed unfairly against another litigant. 66 Third and finally, the Respondent argued that, contrary to Mr Garling's submission, a substantial proportion of the material in PAS1 did not have to be produced by the Bar Association in order to comply with rule 25 of the Administrative Decisions Tribunal (Interim) Rules. Much of this unnecessary material, moreover, was what Mr Garling called 'Part 10 material'. In the Respondent's submission, the voluntary disclosure of this 'Part 10 material' clearly amounted to a waiver of the protection afforded by s. 171R. Discussion and conclusions 67 The Respondent's alternative argument. It is useful to deal first with what we have called the Respondent's alternative argument since, if successful, it would remove any need to consider any further aspects of the interpretation of s.171R of the LP Act. 68 Our view is that there is no basis on which s. 171R could be interpreted as inapplicable to proceedings instituted in the Tribunal under Part 10. No such restriction on its scope appears in its express terms. Furthermore, it is inconceivable that the legislature would have included the bracketed phrase 'including proceedings before the Tribunal' within the section if it had intended to exclude from its operation the principal type of proceeding conducted in the Tribunal in the exercise of jurisdiction conferred by the LP Act. 69 Whether the protection conferred by s. 171R in Tribunal proceedings is subject to considerations of fairness. For a number of reasons, we do not accept Mr Garling's proposition that a restriction, such as s. 171R imposes, on the Tribunal's statutory powers to compel persons to give evidence and/or produce documents cannot be subject to the 'considerations of fairness' (as we will call them) that were outlined by Sheller JA in Murray v Legal Services Commissioner. 70 In the first place, we believe that we must treat his Honour's statements regarding considerations of fairness as binding, even though technically they were obiter dicta. We would refer here particularly to this statement by him at [64]: 'No doubt the legislature intended that where the Commissioner has begun proceedings pursuant to the Act his reliance on s171R should be a fair and reasonable reliance which does not interfere with the just and fair hearing of the proceedings he has instituted' (our emphasis). 71 It is true that at [62] Sheller JA indicated that he would 'assume' that the Legal Services Commissioner could waive the protection conferred by s. 171R. But the fact remains, as the Respondent pointed out, that in the paragraph immediately preceding, he quoted from explanations in the High Court (in Attorney General for the Northern Territory v Maurice) as to how client legal privilege may be waived by implication, without at any stage indicating or even suggesting that these explanations were irrelevant to the operation of s. 171R. 72 Mr Garling sought to persuade us that Sheller JA's statements regarding considerations of fairness, made in the context of Court of Appeal proceedings, should be held inapplicable to Tribunal proceedings. In this connection, he laid emphasis on the principle that the Tribunal, being entirely a creature of statute, had no powers other than those contained in ss. 83 and 84 of the ADT Act to compel persons to give evidence or produce documents. 73 No doubt the Supreme Court's inherent powers as a superior court of record, including its power to punish disobedience to a subpoena as contempt of court, differentiate it markedly from statutory tribunals such as this Tribunal. But Mr Garling offered no explanation as to why any difference of this nature should lead to the conclusion that in the Supreme Court, but not in the Tribunal, reliance by a person listed in s. 171Q of the LP Act on the provisions in s. 171R limiting the power to compel persons to give evidence or produce documents should be subject to considerations of fairness. 74 For these reasons, we conclude that the considerations of fairness described by Sheller JA in Murray v Legal Services Commissioner govern the operation of s. 171R when it is invoked in Tribunal proceedings such as these. 75 Whether it is only during the substantive hearing that considerations of fairness govern the operation of s. 171R. The answer to this question depends chiefly, in our view, on what is to be inferred from language used by Sheller JA in paragraphs [62] and [63] of his judgment. 76 In these two paragraphs, which are reproduced above at [41], his Honour made three explicit references to particular items of evidence being relied on by the Legal Services Commissioner in the proceedings before the Court: see the first sentence of [62] and the first and last sentences of [63]. In [62] he pointed out that the six documents to which Mr Murray's application related were 'not referred to in any material before the Court in the proceedings'. In [63], he outlined a proposition, which he rejected, to the effect that 'simply by calling evidence, the Commissioner waives his right to rely on s 171R or should in fairness be required to produce all the other documents in his file'. 77 These aspects of his judgment are capable, we believe, of supporting the inference for which Mr Garling contended, namely, that in Sheller JA's view the principle that a person invoking the protection of s. 171R was bound by considerations of fairness did not arise until this person had called evidence in the proceedings and indicated what evidence he or she relied on. 78 His Honour did not, however, expressly state that this limitation existed. Moreover, it is apparent from earlier parts of his judgment (see [9], [31 - 33] and [50]) that at the time when Mr Murray's application for an order requiring production of the six specified documents was heard, the substantive hearing had commenced and the Court knew at least the general nature of the evidence being relied on by the Commissioner. 79 For this reason, we consider that not too much should be read into the aspects of Sheller JA's language in [62] and [63] that we have just identified. His Honour did not consider, because he did not need to consider, whether the considerations that we are discussing were applicable during the interlocutory stages of proceedings. We do not interpret his judgment as containing a ruling on this matter. His use of the words 'where the Commissioner has begun proceedings pursuant to the Act' at the end of paragraph [64] suggests in fact that in his opinion considerations of fairness should apply at least from the time when proceedings are commenced by the filing of an information. 80 In further support of his argument that these considerations of fairness should not be applicable during the interlocutory stages of proceedings, Mr Garling invoked a criterion of public interest. It was in the public interest, he submitted, that the Bar Association and the Law Society should be able to investigate complaints against legal practitioners without being hindered by the prospect of having to produce documents arising from or related to their investigations. 81 In our opinion, however, the two countervailing factors urged upon us by the Respondent are of greater weight. It would, we think, be most unfortunate if a respondent in Part 10 proceedings had to wait until the tender of the informant's evidence, at or soon after the commencement of the substantive hearing, before being permitted to argue, on the basis of the evidence tendered, that on account of considerations of fairness the informant could no longer rely on s. 171R. In addition, we agree with the Respondent's submission that fairness as between litigants is a matter of significant public interest. 82 For these reasons, we conclude that the 'considerations of fairness' outlined by Sheller JA in Murray govern the operation of s. 171R during the interlocutory stages of proceedings such as these, not merely the period following the tender of evidence by the informant in the substantive hearing. 83 This conclusion goes a long way towards disposing of two further submissions by Mr Garling. These were to the effect that the documents required to be produced under the summons bore no apparent relation to any identified issue in the proceedings or to any evidence filed by the Bar Association (see [55 - 56] above). 84 Our view of these submissions is that they take insufficient account of principles regarding summonses that we have discussed in earlier judgments in this case (see New South Wales Bar Association v Archer [2004] NSWADT 38; Council of the New South Wales Bar Association v Archer (No 3) [2004] NSWADT 232). These are to the effect that the test for determining whether a document referred to in a summons or subpoena is of sufficient relevance to warrant compulsory production is a very broad one, requiring no more than 'adjectival' relevance. 85 We would add that if, in the Bar Association's contention, any one or more of the four categories required did not satisfy this test, the option of applying for the summons to be wholly or partly set aside was open to it. The Bar Association did in fact make such an application with regard to the WA documents (required under clause 2 of the Schedule to the summons), but then withdrew it (see [25] above). 86 The range of documents to which s. 171R refers. At this stage of our reasoning, it is necessary to determine the nature and scope of the documents to which s. 171R refers. This matter received relatively little attention in the parties' submissions. 87 The important words in s. 171R are these: 'documents in respect of any matter in which the person was involved in the course of the administration of this Part'. According to their natural meaning, they embrace any document that relates in any way to a 'matter' in which the person called upon to produce documents was 'involved in the course of the administration of' Part 10 of the LP Act. 88 In this case, the relevant 'person' is the Bar Association itself, represented in the summons by its 'proper officer'. The relevant 'matter' in which the Bar Association has been 'involved' embraces all the steps that it has taken with regard to the Respondent that fall within the range of its functions under Part 10. These chiefly comprise the making and the investigation of the complaint, the determination (by resolution of the Bar Council) that proceedings should be instituted in the Tribunal and the institution of those proceedings. 89 As we interpret the section, the phrase 'documents in respect of' this 'matter' extends to any document that relates to any of these steps taken by the Bar Association. It may be a document recording a formal decision reached by or on behalf of the Bar Association (such as the Bar Council's resolution on 31 July 2003 to institute these proceedings). It may be a document that was taken into consideration when such a decision was reached (such as the Professional Conduct Committee's report, dated 22 July 2003, which the Bar Council considered before passing this resolution). But equally the phrase extends to any document to which consideration was given by any person (such as an employee of the Association, a solicitor instructed by the Association or a member of a Professional Conduct Committee) while participating in the exercise by the Association of its statutory functions in this matter - notably, in the processes of inquiry that (a) preceded the making of the complaint and (b) constituted the investigation of the complaint required by s. 148(1) of the LP Act. 90 The documents within this very broad ambit include many documents that came into existence before the Bar Council took the first formal step falling within Part 10 - that is, resolving that the complaint should be made against the Respondent. A number of the latter group of documents received attention by or on behalf of the Bar Association when it was not yet acting under Part 10 but was performing a statutory function under Part 3 - namely, deciding whether or not the Respondent's practising certificate should be cancelled. But any such document that was subsequently given consideration in the course of any of the activities undertaken by the Association pursuant to Part 10 must, in our opinion, be categorised as a document falling within the scope of s. 171R so far as the present 'matter' is concerned. 91 By virtue of this reasoning, we do not accept Mr Garling's contention (see [57] above) that by a process of editing or 'redaction' a document within the scope of a relevant summons may be severed into (a) one or more parts that need not be produced by virtue of s. 171R, because they contain 'references to Part 10 considerations', and (b) one or more other parts that must be produced because they do not contain any such considerations. It seems to us that although there undoubtedly exist grounds (such as informant privilege) that will justify the disclosure of only part of a document, a document must either be entirely within or outside the range specified in s. 171R. We discuss below the implications of the Bar Association having included a number of redacted documents amongst those that it produced. 92 How the question of fairness should be approached. As we understand the relevant paragraphs (quoted above at [41]) in Sheller JA's judgment in Murray, our task is as follows. We should consider the extent, if any, to which the Bar Association, by virtue of having disclosed to the Respondent a number of documents within the range defined in s. 171R, is now precluded by considerations of fairness from relying on this section as grounds for withholding other documents that also fall within this range and which it would otherwise be bound to produce in order to comply fully with the summons. 93 In resolving this question, we should take account both of the documents that the Bar Association has produced in answer to the summons and of any other relevant documents that it has disclosed to the Respondent in these proceedings. This conforms, we believe, with the approach taken by the Court of Appeal in Murray. In that case, the Legal Services Commissioner produced none of the six documents listed in the application by Mr Murray. But in deciding whether this amounted to unfair reliance on s. 171R, the Court took account of other material, including a letter from the Commissioner to Mr Murray, that the Commissioner had disclosed to Mr Murray independently of the summons. 94 The documents disclosed by the Bar Association other than in response to the summons include the documents contained in the exhibit, marked 'PAS1', to Mr Selth's affidavit filed on 14 February 2007. Although, being an exhibit, PAS1 was not filed in the Tribunal, it has been open to inspection by the Respondent since that date: see Robowash Pty Ltd v Robowash Finance Pty Ltd [2000] WASCA 409 at [14 - 17]. 95 Because the conditions of fairness explained by Sheller JA derive from, or are akin to, principles governing the implied waiver of client legal privilege, we should not take into account any documents disclosed by the Bar Association in discharge of the specific requirements imposed on it by rule 25 of the Administrative Decisions Tribunal (Interim) Rules 1998. For reasons spelt out below in our discussion of the Respondent's application relating to the documents produced by Mr Robertson, waiver should not be held to arise by virtue of a party taking a step in proceedings that is specifically required by law. 96 In the summons addressed to the Bar Association the present dispute concerns three categories of documents specified in the Schedule: WA documents, ATO documents and internal documents. These categories are clearly distinct and severable, at least conceptually, from each other. It could legitimately be concluded that the Bar Association's disclosure of documents within one of these categories was such that considerations of fairness should preclude it from withholding further documents within the same category, while at the same time reaching the opposite conclusion with regard to either or both of the other categories. 97 Accordingly, in our opinion we should assess this question of fairness separately with respect to each of the three disputed categories. Nothing in the terms of s. 171R or in the principles stated in Murray seems to us to prohibit this. 98 The WA documents. A general description of the WA documents that were produced by the Bar Association in response to (a) clause 2 of the Schedule to the summons and (b) the Respondent's subsequent request for production of associated notes and memoranda is given above at [22] and [29]. 99 The contents of the correspondence, notes and memoranda included among these documents may be summarised as follows:- In a letter dated 9 July 2001 to the Bar Association, the Legal Practitioners Disciplinary Tribunal of Western Australia ('the WA Tribunal') enclosed a copy of three judgments that it had given relating to the Respondent, in 1990, 1992 and 2001 respectively. The letter stated that since the latest of these judgments had not yet been published it was confidential and 'should not be used in any matter'. In a letter dated 29 October 2001, the Bar Association advised the WA Tribunal that it had cancelled the Respondent's practising certificate on 23 October 2001. In a letter dated 31 October 2001, the Legal Practitioners Complaints Committee of Western Australia ('the WA Committee'), which appears to have been an emanation of the Barristers Board of that State, requested from the Bar Association further particulars of the cancellation and copies of all relevant documents. In a letter dated 21 December 2001 to the Bar Association, the WA Committee asked for a reply to its earlier letter. In a letter dated 14 January 2002 to the WA Committee, the Bar Association provided the particulars and copies of documents that the Committee had requested. This letter was apparently redacted by the deletion of material immediately following the text of the Bar Association's resolution of 23 October 2001 effecting the cancellation. In an internal email within the Bar Association dated 16 January 2002, Mr Selth gave permission to an employee to send letters regarding the Respondent to a body that the employee had described to him as the equivalent of the Bar Association in Western Australia. In two file notes and an internal email dated 22 May 2002, recording or referring to telephone conversations between the Bar Association and the WA Committee, there was discussion of the following matters: (a) what Bar Association documents could appropriately be put before a court in Western Australia by the Committee; (b) the Respondent's third bankruptcy, which had occurred recently and was implicitly treated as an event of significance for the activities of both bodies; and (c) the impact of this bankruptcy on the Respondent's entitlement to practise in Western Australia. Also on 22 May 2002, the WA Committee sent a copy of a bankruptcy search against the Respondent to the Bar Association. Also on 22 May 2002, the Bar Association sent a letter to the WA Committee, indicating that it had no objection to the Committee's referring in an affidavit to the Association's cancellation of the Respondent's practising certificate. Enclosed with the letter were copies of a Sydney Morning Herald website item and article, both dated 31 October 2001, describing this cancellation as having occurred on account of 'bankruptcy and tax offences'. 100 These documents show that, at least during 2001 and 2002, the Bar Association and the WA Committee (the latter acting on behalf of the Barristers Board of Western Australia) considered it desirable to exchange relevant information regarding the Respondent as it came to hand, in order that both of them might more effectively discharge their responsibilities to the public and the legal profession. 101 Whether or not the content of any further exchanges of information between the Bar Association and the Barristers Board of Western Australia is ultimately relevant to the determination of these professional misconduct proceedings is not significant at this stage. As we pointed out above at [25], the Bar Association has not proceeded with an application that it made on 10 April 2007 for the relevant clause of the Schedule (clause 2) to be struck out. It has implicitly conceded that documents within the range identified by this clause may be of sufficient potential relevance to justify its inclusion in the summons. 102 We note further that, in contrast to the situation in Murray v Legal Services Commissioner (1999) 46 NSWLR 224; [1999] NSWCA 70, the Bar Association has sought to rely on the protection conferred by s. 171R of the LP Act without specifying the documents that it seeks to withhold from production. 103 In these circumstances, it is, in our judgment, unfair for the Bar Association to deny to the Respondent the opportunity to view the full scope of the exchange of information that occurred between the Bar Association and the Barristers Board of Western Australia within the period specified in clause 2 (1 July 1987 to 9 October 2004). Applying the criterion stated at [64] in Sheller JA's judgment in Murray, we find that this stance adopted by the Association has the potential to 'interfere with the just and fair hearing of the proceedings' that it has instituted. 104 We accordingly disallow the Bar Association's claim under s. 171R of the LP Act that it is entitled to withhold from production documents within the range specified in clause 2 of the Schedule to the summons dated 22 February 2007 addressed to its Proper Officer. 105 We further order (a) that the Bar Association produce, within fourteen days of the date of these reasons (or such further time as may, on application, be allowed), all documents within this range that have not yet been produced in complete form; and (b) that the Respondent is to be permitted to inspect and copy these documents. 106 The ATO documents. We outlined above at [58] the contents of the one document within this category - a letter dated 9 March 2001 from the Bar Association to the Commissioner of Taxation - that the Association produced. 107 A significant aspect of the letter is that the information requested from the ATO was restricted to information already on the public record. In contrast to the WA documents that were produced, this single letter did not suggest that there was or might be a continuing exchange of information between the two authorities involved, or that the ATO might advise the Bar Association of matters that could not be publicly ascertained. The letter was redacted, but in a manner clearly suggesting that the deleted material did not related directly or indirectly to the Respondent. 108 For these reasons, we accept Mr Garling's submission that, although this letter may well have fallen within the range defined in s. 171R of the LP Act, it is not unfair for the Bar Association, despite having produced it, to invoke the protection of this section so far as any other documents within this category are concerned. 109 We accordingly reject the Respondent's application for an order disallowing the Bar Association's claim under s. 171R of the LP Act to be entitled to withhold from production documents within the range specified in clause 3 of the Schedule to the summons dated 22 February 2007 addressed to its Proper Officer. 110 The internal documents. It will be recalled that in clause 4 of the Schedule to the summons addressed to the Bar Association, the category that we have labelled 'the internal documents' was defined as follows:- 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. 111 The Bar Association has disclosed documents within this category both through the filing of Mr Selth's affidavit of 13 February 2007 (accompanied by annexures and the exhibited material marked 'PAS1') and through production of documents in response to the summons. 112 The material accompanying Mr Selth's affidavit included the following resolutions by the Bar Council: (a) making the complaint against the Respondent (29 August 2002); (b) determining that the complaint should be dealt with even though it related to alleged conduct occurring more than three years previously (16 December 2002); and (c) determining that the present proceedings should be instituted (31 July 2003). Within the text of a letter to the Respondent dated 26 October 2001, the text of the Council's resolution on 23 October 2001 cancelling his practising certificate was also set out. 113 As stated above at [22], the internal documents produced in response to clause 4 of the Schedule to the summons comprised minutes of a number of meetings of the Bar Council, its Executive Committee and a Professional Conduct Committee, all bearing dates within the period from 28 February 2001 to 10 October 2001. Almost all of these documents were substantially redacted, in order (as stated in the Bar Association's submissions) to remove 'all Part 10 considerations'. 114 As indicated above, Mr Garling argued that the existence of obligations imposed on the Bar Association by rule 25 of the Administrative Decisions Tribunal (Interim) Rules 1998 was sufficient to rebut any argument that disclosure of any or all of the material annexed to Mr Selth's affidavit or contained in the accompanying exhibit ('PAS1') constituted an implied waiver of the protection conferred by s. 171R. 115 We agree with the Respondent, however, that a great deal of this material fell outside the scope of what rule 25 required. 116 This conclusion can be substantiated simply by reference to the dates of many of the documents in PAS1. As appears from the text of the affidavit, pages 4 - 136 of this exhibit (which has 301 pages) contain documents that predate the Bar Council's resolution of 29 August 2002 making the complaint against the Respondent. Rule 25 requires in subrules (1)(b), (1)(c) and (2) that particulars of investigatory action taken by the informant (including the identity of any investigator) and copies of 'the reports or other documents relating to the investigation which the informant intends to tender in evidence' be included in or exhibited to the affidavit under rule 25. But the investigation referred to in the rule is the investigation that s. 148(1) requires to be conducted by the informant 'into the complaint'. The rule imposes no obligations relating to any investigation conducted before the complaint was made. 117 The remaining provisions of rule 25 - i.e., subrules (1)(a) and (d) - require that in the affidavit the author of the complaint should be identified, that the allegations of professional misconduct or unsatisfactory professional conduct on which the complaint is based should be 'briefly described' and that it should be 'established' that, at the time of alleged misconduct or unsatisfactory conduct, the respondent was a legal practitioner to whom Part 10 applied. 118 Amongst the documents within PAS1 (i.e., at pages 137 - 301) that are contemporaneous with or postdate the complaint, those of significance in the present context are the minutes recording three resolutions of the Bar Council: i.e., the resolutions making the complaint (29 August 2002), determining that it should be dealt with even though it related to alleged conduct occurring more than three years previously (16 December 2002) and determining that the present proceedings should be instituted (31 July 2003). 119 Inclusion of the first of these sets of minutes in PAS1 may be interpreted as a step taken by the Bar Association in fulfilment of its obligations under subrule (1)(a) of rule 25. 120 As to the second and third of these sets of minutes, it is relevant to note that under Part 10, as interpreted in decisions such as Murray v Legal Services Commissioner (1999) 46 NSWLR 224; [1999] NSWCA 70, the Bar Association is obliged to prove its adherence to a number of procedural requirements (including the basic principle of natural justice) in order to establish that the Tribunal has jurisdiction in these proceedings. On the footing that the Bar Association may be assumed to 'intend to tender' these minutes as part of its evidence relating to jurisdiction, they appear to us to fall within the category of 'other documents relating to the investigation' defined in subrule (c)(ii). 121 Accordingly, the Bar Association may fairly argue that its disclosure of the minutes of these three resolutions, which fall within the scope of clause 4 of the Schedule to the summons, occurred in fulfilment of specific obligations imposed on it by rule 25 and therefore did not constitute a waiver of the protection afforded to it by s. 171R. This conclusion receives support from authorities discussed later in this judgment, in connection with the Respondent's application relating to the summons to Mr Robertson. 122 The problem remains for the Bar Association, however, that it cannot maintain this argument with regard to the disclosed minutes that predate the complaint. 123 Furthermore, the Bar Association has proceeded on the assumption that it is entitled under s. 171R to excise from these minutes any material that it considers to be 'Part 10 material'. For reasons explained above at [91], we do not accept this assumption. As we said in that paragraph, 'a document must either be entirely within or outside the range specified in s. 171R'. 124 We consider that to disclose part of a document while concealing the rest is an instance of the selective approach to production of documents that Sheller JA in Murray held to be unfair. We do not think that s. 171R can or should be used in this way. 125 It follows, in our opinion, that the Bar Association should not be permitted to invoke s. 171R as a ground for withholding from disclosure the excised text of those minutes, bearing dates within the period from 28 February 2001 to 10 October 2001, that it produced in response to the summons. 126 Earlier in these reasons, at [97], we recorded our conclusion that we should assess this question of fairness separately with respect to each of the three disputed categories of documents. It follows, in our opinion, that because we consider the approach of the Bar Association in producing 'redacted' minutes for meetings held in 2001 to have constituted unfair reliance on s. 171R, the Bar Association should be held to have waived, by implication, the protection conferred by this section against being obliged to produce all the documents falling within the category. 127 This further conclusion is supported, in our opinion, by the consideration that so far the Bar Association has declined, in purported reliance on s. 171R, to identify any documents that it claims to be entitled to withhold. 128 For these reasons, we disallow the Bar Association's claim under s. 171R of the LP Act that it is entitled to withhold from production documents within the range specified in clause 4 of the Schedule to the summons dated 22 February 2007 addressed to its Proper Officer. 129 We further order (a) that the Bar Association produce, within fourteen days of the date of these reasons (or such further time as may, on application, be allowed), all documents within this range that have not yet been produced in complete form; and (b) that the Respondent is to be permitted to inspect and copy these documents. THE APPLICATION FOR AN ORDER FOR EXAMINATION OF THE 'PROPER OFFICER' OF THE BAR ASSOCIATION The parties' submissions 130 In support of his application, the Respondent argued that a 'real issue' had arisen as to whether the Bar Association, in responding to the summons addressed to it, had sufficiently complied with its terms. In this connection, he referred particularly to the assertion by Hicksons (see [30] above) that a file was 'missing', claiming that this assertion was unconvincing.. 131 Relying on passages in two of our earlier decisions in these proceedings (Council of the New South Wales Bar Association v Archer (No 6) [2005] NSWADT 149 at [9 - 10]; Council of the New South Wales Bar Association v Archer (No 7) [2005] NSWADT 223 at [20]), the Respondent contended that the Tribunal should therefore exercise a power that it possessed to order that the Proper Officer of the Association should be examined 132 In reply, Mr Garling contended that, save with regard to what he described as examination relating to 'non Part 10 documents' falling within the scope of the summons, the Proper Officer of the Bar Association was not compellable to give evidence by virtue of s. 171R of the LP Act. Being a member of the staff of the Bar Association, this person was one of the persons listed in s. 171Q and could therefore claim the protection conferred by s. 171R. In Mr Garling's submission, an additional 'level' of protection existed because the documents to which any examination would relate would be 'Part 10 documents'. 133 In essence, Mr Garling's contention with regard to any 'non Part 10 documents' held by the Bar Association and not yet produced was that no examination in relation to them should be ordered because they would not be relevant in any way to the present proceedings. Our conclusions 134 In general terms, we accept Mr Garling's contention that the Proper Officer of the Bar Association, being a person listed in s. 171Q of the LP Act, may invoke the protection given by s. 171R in response to a summons to give evidence 'in respect of any matter in which the person was involved in the course of the administration of' Part 10 of the Act. 135 Reliance on this protection is, however, subject to the 'conditions of fairness' that we have outlined and applied in determining the Respondent's application relating to production of documents. In the present circumstances, this has the following consequence. If after purported compliance with the orders set out above relating to two of the disputed categories of documents in the summons (the WA documents and the internal questions), there is found to be a 'real issue' as to whether this compliance is sufficient, the Bar Association should not be permitted to rely on s.171R to resist an order for examination of its Proper Officer. 136 Accordingly, the appropriate course of action for us, so far as production of the WA documents and the internal documents is concerned, is to defer considering whether any order for examination should be made until after the orders for further production by the Bar Association, set out above at [105] and [129], have been complied with and the Respondent has had an opportunity to inspect such additional documents as are produced. 137 The position in relation to the ATO documents, which constitute the remaining category, is quite different. We have held that the Bar Association, notwithstanding its production of one document within this category, can withhold production of any further documents by virtue of s. 171R. It must follow that no 'real issue' as to compliance with the summons can arise. 138 We therefore dismiss the Respondent's application for an order for examination of the Proper Officer of the Bar Association, as far as it relates to production of the documents defined in clause 3 of the Schedule to the summons. THE APPLICATION FOR ACCESS TO DOCUMENTS PRODUCED BY MR ROBERTSON 139 The summons to Mr Robertson required production of documents in six categories. Categories 1 and 6 were non-controversial. The remaining categories were defined as follows in clauses 2 - 5 of the Schedule:- 2. Copies of all documents of every kind provided to you by or on behalf of Hicksons to enable you to provide services in relation to the Proceedings (other than documents annexed or exhibited to the affidavit sworn by you on 29 March 2006 and filed in these proceedings ("your Affidavit")). 3. Copies of all reports, statements, schedules, tables, analyses, spreadsheets and other documents of every kind provided by you to Hicksons since 1 March 2001 concerning or in any way relating to the financial or other affairs of the Respondent. 4. Copies of all notes, draft reports, draft statements, schedules, tables, analyses, spreadsheets and other documents of every kind compiled by you or by any person under your supervision, or by any other partner or employee of the Firm [of Weston Woodley and Robertson], since 1 March 2001 concerning or in any way relating to the financial or other affairs of the Respondent. 5. The originals, or in the absence of the originals, copies of every draft of your Affidavit and of each spreadsheet, analysis and other document annexed or exhibited to your Affidavit, whether prepared by you or by any person on your behalf or provided to you by Hicksons, before 29 March 2006. 140 Mr Robertson is an accountant whom the Bar Association has retained to provide evidence in these proceedings. As stated in clause 2 of the Schedule to the summons, the Bar Association has filed an affidavit sworn by him on 29 March 2006. The Bar Association's submissions 141 Mr Garling submitted that the Bar Association was entitled to claim client legal privilege in relation to these documents on the grounds that (a) they had been prepared for the purposes of these proceedings and (b) that the privilege was not waived by the filing of Mr Robertson's affidavit because this affidavit formed part of evidence that the Tribunal had required it to file. This requirement was imposed in a direction of the Tribunal, given on 17 February 2006, that the Bar Association should file and serve any remaining evidence on or before 31 March 2006. 142 The case on which Mr Garling chiefly relied was Sevic v Roarty (1998) 44 NSWLR 287. This case involved a claim for damages for professional negligence brought in the Supreme Court by a patient against her doctor. The case was subject to Differential Case Management pursuant to a Practice Note. In compliance with a direction by the Court that the parties should file all expert reports by a specified date, the defendant filed a report prepared by an expert medical practitioner. The opening sentence of the report stated that the expert had received a letter of instructions and 'the documents concerning this claim'. The plaintiff applied by notice of motion for an order that the defendant produce 'all instructing letters and materials' furnished to the expert for the purposes of his report. The Supreme Court's decision to dismiss this application was upheld by the Court of Appeal. 143 It was common ground that the material sought in the notice of motion was properly the subject of a claim of legal professional privilege. The issue in dispute was whether the privilege had been waived by implication. While agreeing that it had not been waived, the opinions expressed in the Court of Appeal differed on the question whether this issue should be resolved by reference to the Evidence Act 1995 or according to common law principles only. 144 The relevant provisions in the Evidence Act were ss. 119(b), 122(2) and 126, which state (so far as relevant):- 119 Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of: … (b) the contents of a confidential document (whether delivered or not) that was prepared; for the dominant purpose of the client being provided with professional legal services relating to an Australian or overseas proceeding (including the proceeding before the court)… in which the client is… a party. 122(2) Subject to subsection (5), this Division does not prevent the adducing of evidence if a client or party has knowingly or voluntarily disclosed to another person the substance of the evidence and the disclosure was not made: … (c) under compulsion of law … 126 If, because of the application of section …122 …, this Division does not prevent the adducing of evidence of a communication or the contents of a document, those sections do not produce the adducing of evidence of another communication or document if it is reasonably necessary to enable a proper understanding of the communication or document. 145 Sheller JA held that the filing of the expert report, which was a privileged document under s. 119(b), was carried out 'under compulsion of law' within the meaning of s. 122(2(c) and therefore did not amount to a voluntary disclosure within s. 122(2). Furthermore, s. 126 did not operate to require the defendant to disclose the documents referred to in the report even if this was 'reasonably necessary to enable a proper understanding of' the report. 146 According to Sheller JA, these provisions of the Evidence Act were applicable and, indeed, overrode pre-existing common law principles. This was the case even though in their express terms the Act's provisions only applied to the adducing of evidence, not to ancillary processes governing the pre-trial gathering of evidence. In so holding, his Honour followed a recent Court of Appeal decision, Akins v Abigroup Ltd (1998) 43 NSWLR 539, in which the Court held that the principles of the Act regarding client legal privilege applied 'derivatively' to these ancillary processes, resulting in a 'modification' of the common law. 147 By contrast, Powell JA held that the issue of implied waiver could and should be resolved 'without resort to' the provisions of the Evidence Act. At 301, he stated what he believed to the current position in the following terms:- [W]aiver is not to be implied or imputed where the document the delivery of which is relied upon to found the implication, or support the imputation, of waiver was delivered - whether to the other party to the litigation or to a third party - pursuant to an order of a court or otherwise under compulsion of law unless the documents ( sic ) be later tendered in evidence on the hearing of the proceedings in which the parties are involved, or otherwise used in such a way on the hearing of those proceedings as would make it unfair to the other party not to treat the privilege as having been waived. 148 Powell JA then examined a number of common law authorities, including Attorney General for the Northern Territory v Maurice (1986) 161 CLR 475 and Goldberg v Ng (1995) 185 CLR 83 (which we have discussed above). He pointed out that the expert report, which had been filed and served pursuant to a direction by the Court, had not been tendered and might never be tendered. Since in his opinion it had not been used in any way that might make it unfair for the plaintiff to be denied access to the documents to which it referred, there was no ground on which its disclosure should be held to have waived by implication the privilege attaching to these documents. 149 The third member of the Court, Fitzgerald A-JA, also rejected the plaintiff's claim that 'fairness', as defined in the common law authorities, required the defendant to be deprived of the privilege attaching to the documents sought. He also held that if (as he appeared to doubt) the approach taken in the Evidence Act was the correct approach, the same result would ensue. 150 Relying on these judgments in Sevic v Roarty, and also on Akins v Abigroup Ltd and Dubbo City Council v Barrett [2003] NSWCA 267 (another decision of the Court of Appeal), Mr Garling contended that since Mr Robertson's affidavit had been served in compliance with a direction of the Tribunal, there had been no voluntary disclosure and therefore no implied waiver of privilege attaching to documents such as the summons specified. He asserted further that 'the question of waiver of privilege does not fall for consideration unless and until the affidavit is tendered and read at the final hearing'. 151 Mr Garling also made a number of submissions relating specifically to Australian Securities & Investment Commission v Southcorp Ltd [2003] FCA 804, which is the case on which the Respondent chiefly relied. The nature of these submissions is indicated below. The Respondent's submissions 152 The starting-point of the Respondent's submissions as to the general principles to be applied was the proposition, stated in ASIC v Rich [2004] NSWSC 1089 at [2], that a party who claims privilege bears the onus of establishing it. The Respondent pointed out that the documents for which the Bar Association claimed privilege had not been specified. It therefore could not be said that self-evidently they were documents to which privilege attached. 153 Secondly, the Respondent submitted that in Esso Australia Resources Ltd v Commissioner of Taxation (1999) 210 CLR 49, the High Court overruled the line of cases, including Akins v Abigroup Ltd (1998) 43 NSWLR 539, in which it had been held that the Evidence Act was applicable, 'derivatively', to ancillary processes governing the pre-trial gathering of evidence. It followed, he asserted, that both the existence of privilege and the question whether any privilege had been waived were to be resolved according to the common law. It followed also that the approach adopted by Sheller JA in Sevic v Roarty (1998) 44 NSWLR 287 was incorrect and that other cases, postdating the High Court's decision in Esso, in which principles derived from the Evidence Act had been applied to the pre-trial gathering of evidence should not be followed. As examples of these 'other cases', he cited Dubbo City Council v Barrett [2003] NSWCA 267 and New Cap Reinsurance Corporation Ltd (In Liq) v Renaissance Reinsurance Ltd [2007] NSWSC 258. 154 Thirdly, the Respondent argued that the relevant common law principles regarding legal professional privilege and waiver of privilege were well established and had been authoritatively summarised in Australian Securities & Investment Commission v Southcorp Ltd [2003] FCA 804. In that case, Lindgren J ruled on a claim by the plaintiff ('ASIC') to legal professional privilege in respect of a number of documents that an expert retained by it had produced in response to a subpoena issued by the defendant ('Southcorp') before the substantive hearing commenced. Two reports prepared by the expert (a 'First Report' and a 'Final Report') had been made available to Southcorp. 155 At [9], Lindgren J summarised the claim to privilege raised by ASIC as follows:- ASIC submits that disclosure of the Documents in Dispute would result in disclosure, in breach of the privilege to which it is entitled in accordance with common law principles, of confidential communications which took place for the dominant purpose of the obtaining or giving of legal advice or assistance, or of use in connection with legal proceedings, or both; cf Esso Australia Resources Ltd v Commission of Taxation (1999) 201 CLR 49 at [35], [61] per Gleeson CJ, Gaudron and Gummow JJ; Mann v Carnell (1999) 201 CLR 1 at [27] per Gleeson CJ, Gaudron, Gummow and Callinan JJ. Ultimately, ASIC pressed its claim as one of litigation privilege alone. 156 At [21], Lindgren J set out the following six principles, which the Respondent put at the forefront of his submissions:- 1. Ordinarily the confidential briefing or instructing by a prospective litigant's lawyers of an expert to provide a report of his or her opinion to be used in the anticipated litigation attracts client legal privilege: cf Wheeler v Le Marchant (1881) 17 Ch D 675; Trade Practices Commission v Sterling (1979) 36 FLR 244 at 246; Interchase Corporation Ltd (in liq) v Grosvenor Hill (Queensland) Pty Ltd (No 1) [1999] 1 Qd R 141 (" Interchase ") at 151 per Pincus JA, at 160 per Thomas J. 2. Copies of documents, whether the originals are privileged or not, where the copies were made for the purpose of forming part of confidential communications between the client's lawyers and the expert witness, ordinarily attract the privilege: Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 ("Propend"); Interchase, per Pincus JA; Spassked Pty Ltd v Commissioner of Taxation (No 4) (2002) 50 ATR 70 at [17]. 3. Documents generated unilaterally by the expert witness, such as working notes, field notes, and the witness's own drafts of his or her report, do not attract privilege because they are not in the nature of, and would not expose, communications: cf Interchase at 161-162 per Thomas J. 4. Ordinarily disclosure of the expert's report for the purpose of reliance on it in the litigation will result in an implied waiver of the privilege in respect of the brief or instructions or documents referred to in (1) and (2) above, at least if the appropriate inference to be drawn is that they were used in a way that could be said to influence the content of the report, because, in these circumstances, it would be unfair for the client to rely on the report without disclosure of the brief, instructions or documents; cf Attorney-General (NT) v Maurice (1986) 161 CLR 475 at 481 per Gibbs CJ, 487-488 per Mason and Brennan JJ, 492-493 per Deane J, 497-498 per Dawson J; Goldberg v Ng (1995) 185 CLR 83 at 98 per Deane, Dawson and Gaudron JJ, 109 per Toohey J; Instant Colour Pty Ltd v Canon Australia Pty Ltd [1995] FCA 870; Australian Competition and Consumer Commission v Lux Pty Ltd [2003] FCA 89 ("ACCC v Lux") at [46]. 5. Similarly, privilege cannot be maintained in respect of documents used by an expert to form an opinion or write a report, regardless of how the expert came by the documents; Interchase at 148-150 per Pincus JA, at 161 per Thomas J. 6. It may be difficult to establish at an early stage whether documents which were before an expert witness influenced the content of his or her report, in the absence of any reference to them in the report; cf Dingwall v Commonwealth of Australia (1992) 39 FCR 521; Tirango Nominees Pty Ltd v Dairy Vale Foods Ltd (No 2) (1998) 83 FCR 397 at 400; ACCC v Lux at [46]. 157 The fourth submission of the Respondent, dealing with the question of implied waiver of any privilege that arose, was that in the present case the judgment of Powell JA in Sevic v Roarty (1998) 44 NSWLR 287 should not be followed. The reason advanced was that in the present case, unlike Sevic v Roarty, the relevant expert report had not been filed and served 'in pursuance of a direction given' by the Tribunal. While the Tribunal did fix a date for the filing of any further evidence by the Bar Association, it did not 'direct' the Association to 'file expert evidence or an affidavit by an expert or, indeed, evidence of any specific kind'. Instead, the Bar Association 'chose' to obtain an affidavit from Mr Robertson and 'chose' to file and serve it. By contrast, Sevic v Roarty was a case where differential case management applied and a precise direction had been given for 'all expert's reports' to be filed by a specified date. 158 The Respondent's submissions also contained some observations, noted below, in reply to the specific arguments put forward by Mr Garling regarding the Southcorp case. 159 In summary, the Respondent's line of argument was that the principles stated in the six paragraphs just quoted from Lindgren J's judgment in Southcorp, together with an overriding principle of 'fairness', should be applied to the Bar Association's claim to privilege with regard to the documents defined in clauses 2 - 5 of the summons addressed to Mr Robertson. The result, in the Respondent's submission, should be that this claim should be rejected, for the following specific reasons:- (a) In the absence of evidence that the documents sought in clause 4, or any of them, were communicated to the Bar Association or its solicitors, these documents do not attract privilege: Southcorp , para 3 (b) As the result of filing and serving Mr Robertson's affidavit, any privilege that ever attached to the documents sought in clause 2 was impliedly waived: Southcorp, paras 4 and 1. (c) To the extent that the documents sought in clauses 3 and 5 were not incorporated in the affidavit, they were never protected by privilege. To the extent that they were so incorporated (or if, contrary to the last sentence, they were once privileged), the privilege has been impliedly waived by the filing and serving of the affidavit: Southcorp, paras 4 and 2. Discussion 160 It is convenient to commence our discussion of these matters by saying that we agree with the first two submissions of the Respondent. The onus to establish privilege does lie on the Bar Association and the issues as to whether privilege has arisen and, if so, whether it has been waived must be resolved according to the common law. 161 With reference to the first of these matters, we would add that, except where it is 'self-evident' that a document is privileged, it is now recognised (see e.g. Ritchie's Uniform Civil Procedure NSW, para [21.5.70]) that in a case (such as this) where a claim to privilege is disputed, the party claiming privilege may be required to supply affidavit or oral evidence in support of the claim. This is not a case where privilege is 'self-evident' because, as the Respondent pointed out, the Bar Association has not identified the documents that it claims to be privileged. In addition, it has filed no affidavit in support of its claim. 162 With reference to the second matter, it is useful to note a factor that was not spelt out by the Respondent. As indicated above at [153], he referred to two decisions, postdating Esso Australia Resources Ltd v Commissioner of Taxation (1999) 210 CLR 49, to the effect that the Evidence Act should apply to the pre-trial processes that were being utilised. But in these decisions (see Dubbo City Council v Barrett at [12]; New Cap Reinsurance Corporation Ltd (In Liq) v Renaissance Reinsurance Ltd at [15]), the court expressly referred to rules of court rendering the Evidence Act applicable. No such provisions exist in the Administrative Decisions Tribunal (Interim) Rules 1998 or in any other procedural rules governing the present proceedings. The requirement in s. 168(1) of the LP Act that the Tribunal must 'observe the rules of law governing the admission of evidence' is expressly confined to 'the purpose of conducting a hearing' into questions of professional misconduct. 163 We also agree in general terms with the Respondent's third proposition, namely, that Lindgren J's outline of principles in Southcorp is both authoritative and relevant to the present case. The relevant passage from Lindgren J's judgment has been quoted and applied more than once in the Supreme Court: see for example Ryder v Frohlich [2005] NSWSC 1342 at [10]; ML Ubase Holding Co Ltd v Trigem Computer Inc [2007] NSWSC 859 at [21]. 164 In our opinion, this passage is of primary utility in determining which documents within the range sought in the summons to Mr Robertson may be the subject of a claim of privilege, irrespective of any issue of waiver. For example, it provides the basis for a ruling that any document 'generated unilaterally' by Mr Robertson (see principle (3) in Lindgren J's summary) will not attract privilege. On the face of it, one or more of the documents sought in clauses 4 and 5 of the Schedule to the summons might well be covered by such a ruling. 165 In this connection, we obtain useful guidance from two further authorities. The first is a passage (at 162) in the judgment of Thomas J in Interchase Corporation Ltd v Grosvenor Hill (Queensland) Pty Ltd (No 1) [1999] 1 Qd R 141 (to which Lindgren J referred more than once). This passage is as follows:- We are concerned in this case with discovery and production of documents. A necessary basis for privilege to attach to anything - document or otherwise - is that it records a communication. The material in categories B, C, D and E has remained in Richard Ellis's possession, and has not been the subject of any communication with the solicitors, or for that matter anyone else. The basis upon which privilege was claimed for these documents is confined to the claim that they were 'brought into existence by Richard Ellis solely for use in this litigation since its commencement and have been kept confidential.' (my italics). The italicised words draw attention to what is missing, and expose a deficiency in the claim. The documents consist mainly of working papers and valuations of other properties, and lack the quality of confidentiality. There is no reason to think that the documents were made for any confidential purpose. The other deficiency is that they were not communicated or intended to be communicated to anyone. In Commissioner of Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501, 552, McHugh J underlined the fundamental point that the subject matter of privilege is communications . This point, however trite it may seem, is fundamental to the determination of the present appeal. Much of the confusion present in the case law arises from a failure to apply it. Legal professional privilege is concerned with communications, either oral, written or recorded, and not with documents per se. In the present matter, shortly put, the documents in no way make or record communications, let alone confidential communications. I would hold that in general, when an expert is engaged by a solicitor for the purpose of giving evidence in a case, documents generated by the expert and information recorded in one form or another by the expert in the course of forming an opinion are not a proper subject for a claim of legal professional privilege. Privilege may however be claimed in relation to communications between the expert and the solicitor (both ways) when such communication is made for the purpose of confidential use in the litigation. Beyond this there is no sufficient reason why any material relevant to the formation of the expert's opinion should be subject to a claim of legal professional privilege. It is as well to add that an expert or solicitor may not artificially manufacture privilege by, for example, the expert sending in his or her file to the solicitor. Documents of this kind simply are not confidential. 166 The second is a paragraph of the judgment of Barrett J in Ryder v Frohlich [2005] NSWSC 1342. After quoting (at [11]) the above passage from Interchase, his Honour said:- 12 The point made here is that privilege can only attach to documents which embody communication between the expert and the litigant by whom the expert is retained (or the litigant's lawyer). A draft report prepared by the expert is not, of its nature, such a communication. It may be that the draft report is, in fact, given or sent by the expert to the litigant or the litigant's lawyer, but that does not change its character as something prepared by the expert which is not intended to be a means of communication with the litigant or lawyer. 167 It is noteworthy that the Bar Association's submissions did not address the issue of prima facie entitlement to privilege to any significant extent. This is the case even though logically this issue precedes the question with which those submissions were mainly concerned: i.e., whether the filing and serving of Mr Robertson's affidavit constituted an implied waiver of privilege. We would simply observe that there can be no waiver of privilege unless privilege existed in the first place. 168 Mr Garling's specific submissions regarding Southcorp focused on statements made by Lindgren J (notably at [5]) regarding the precise circumstances of the retainer of the expert by ASIC. His Honour took these particular matters into account when formulating his rulings on ASIC's claim to privilege. As contended by the Respondent, however, we do not think that the six general principles formulated by Lindgren J should be read down in any way on account of these particular aspects of the case. As we have said, this outline of the law has been accepted as authoritative in its own right in a number of Supreme Court cases. 169 Where we part company with the Respondent's reliance on Southcorp as an authority directly governing the present case is on the issue of implied waiver. The Respondent argued that Lindgren J's summary, in principle (4), of the impact of an implied waiver should dictate our conclusions regarding the effect of the Bar Association's decision to file and serve Mr Robertson's affidavit. As we said earlier (see [157]), he argued that Powell JA's observations on this question in Sevic v Roarty (1998) 44 NSWLR 287 at 301 were not applicable because in the present case there was no 'direction' by the Tribunal that this affidavit be filed. 170 In our opinion, Lindgren J's judgment did not in fact address the issue of what flowed from the filing of an expert report pursuant to a direction by a court or tribunal. Nowhere is it indicated in his judgment that ASIC had disclosed the First Report and the Final Report of the expert to Southcorp pursuant to any such direction or order. In principle (4), Lindgren J simply sets out what will 'ordinarily' be the consequence of 'disclosure of the expert's report for the purpose of reliance on it in the litigation'. 171 We disagree, moreover, with the Respondent's contention that Mr Robertson's affidavit was not filed 'in pursuance of a direction given' by the Tribunal. As already stated, on 17 February 2006, at the conclusion of a hearing at which the Respondent and his wife had been examined with regard to their compliance with summonses to produce documents that had been served on them, the Tribunal directed that the Bar Association should file and serve 'any further evidence' in these proceedings on or before 31 March 2006. In accordance with this direction, Mr Robertson's affidavit, which was sworn on 29 March 2001, was filed on 31 March 2006. 172 This direction accorded with the normal practice adopted in the Tribunal (as confirmed, for instance, in the second paragraph of its Practice Note No. 18, 'Calling witnesses for oral evidence', issued on 23 March 2005). Amongst the rules prescribed in the Administrative Decisions Tribunal (Interim) Rules 1998 for proceedings under Part 10 of the LP Act, rule 28(3) states in subparagraph (b) that at a directions hearing the Tribunal may give a direction 'that affidavits or statements of evidence of the intended witnesses be lodged with the Tribunal and served by a specified date'. 173 Our views on this matter receive significant support from the judgment of Brownie AJ in Dr Angus McKinnon v BHP Steel (AIS) Pty Ltd & Anor [2004] NSWSC 1027. In an appeal from a decision of a Master, his Honour held that the respondent's filing and serving of two medical reports in response to a direction, given under the Supreme Court Rules, Part 36, Rule 13A, for the filing and serving of 'all affidavits to be relied on at the trial' did not bring about a waiver of any legal professional privilege attaching to documents referred to in the reports, because the disclosure occurred 'under compulsion of law' within the meaning of s. 122(2)(c) of the Evidence Act 1995. (For the reason explained above at [162], his Honour applied the provisions of the Evidence Act, rather than the common law, to this question of waiver.) 174 The judgment of Brownie AJ contains the following observations at [9 - 13] and [16]:- 9 The appellant submits that the directions were given by consent. Assuming that much, they were still the directions of the Court, so that the submission that the reports were not served under compulsion of law is unpersuasive. A direction given by consent or an order made by consent is binding in much the same way as a judgment given by consent is binding. It does not seem to me to be significant in this context, that the respondent at that stage had the right to elect whether or not to serve particular reports being held or that might at any stage before trial, and perhaps up until the moment during the trial when he closed his case elect to rely or not rely upon the reports or either of them. The substance of the direction given was that the relevant parties had to serve any reports that they might rely upon at the trial. 10 Nor does it seem to me to be significant that the respondent might be able to apply successfully to vary the directions that were given unless and until they are varied by the directions of the Court. It can hardly be right to think that litigants, in cases like this, who comply with the directions of the Court, do so voluntarily, rather than under compulsion of law. 11 In addition, I consider that Part 36 Rule 13A compelled the respondent to serve the reports in question if it proposed to use them at trial, and it is not to the point that there is power in the Court to make an order "otherwise". 12 At common law there was no such requirement, but over a period of decades courts have made rules having the practical effect of requiring the disclosure before trial of matters such as I have mentioned, and the present rule exists to compel this kind of disclosure. 13 Again, I do not think it is accurate to say that compliance with the rule means that disclosure made under it is voluntary, and not disclosure under compulsion of law…. 16 What evidence there was, was all the one way. The reports were served because of the directions of the Court and the provisions of the rules, and there appears to have been no debate about that matter before the Master. It is true enough, as the appellant submitted, that the directions given, and the rule mentioned do not provide sanctions for non-compliance, at least in the same sense as in a statute, which might impose a sanction for identified offences. But I do not accept that this means that compliance with the directions given or compliance with the rules means that what is done by way of compliance is not done under compulsion of law. 175 We accordingly reach the following conclusions: (a) that the filing and serving of Mr Robertson's affidavit should be viewed as having taken place in compliance with a direction of the Tribunal; and (b) that the consequences of these steps taken by the Bar Association should be determined in accordance with the statement of common law principles given by Powell JA in Sevic v Roarty (1998) 44 NSWLR 287, in the passage (at 301) that we have quoted above at 147]. 176 In the first part of this passage, Powell JA stated that waiver was not to be implied where the document in question was delivered to the other party pursuant to an order of a court or otherwise under compulsion of law. But he added the following qualification: 'unless the documents (sic) be later tendered in evidence on the hearing of the proceedings in which the parties are involved, or otherwise used in such a way on the hearing of those proceedings as would make it unfair to the other party not to treat the privilege as having been waived'. 177 Brownie AJ in Dr Angus McKinnon v BHP Steel (AIS) Pty Ltd & Anor cited Sevic v Roarty, but did not refer to this passage in Powell JA's judgment. In the paragraphs immediately following the extracts that we have just quoted, Brownie AJ did, however, appear to take account of Powell JA's proposition that either a tender of the relevant documents at the hearing or other 'considerations of fairness' might lead to a finding of waiver. Brownie AJ observed:- 17 The appellant then submitted that considerations of fairness mean that the respondent had waived the privilege that attached to the reports, and to the documents referred to in the reports, referring to the substantive rights concerning legal professional privilege conferred by the common law, rather than client legal privilege mentioned in the Evidence Act. 18 I have to decide an appeal brought under Part 60 Rule 10 from the decision of the Master. I do not consider that it has been shown that the Master made any error in this regard. The appellant's submissions tended to argue the question of fairness as if it was a matter for me to decide, and to focus upon what was said to be the novelty and the difficulty of the plaintiff's claim. I do not see this was put to the Master, but, in any event, the Master's view that no question of fairness would arise until [one or other of the authors of the medical reports] gives evidence and refers to the documents has not been shown to be erroneous. 19 This view appears to be consistent with the fourth principle mentioned by Justice Lindgren in ASIC v Southcorp Limited [2003] FCA 804 at 21. The Master quoted that decision. The authorities that his Honour referred to appear to support what his Honour there accepted. The possible future use of the two reports in question might lead to the view being taken later that considerations of fairness would result in the conclusion that privilege has then been waived, but this stage has not yet been reached. 20 The two reports mentioned refer to other documents. These mere references do not establish that there will be unfairness to the appellant arising from the use of the reports without disclosure of the contents of the documents. That position might or might not arise, or appear to arise, later on. 178 On the question of imputed waiver, therefore, we agree, broadly speaking, with the position put by Mr Garling. Applying common law principles, we conclude that the filing and serving of Mr Robertson's affidavit did not of itself constitute an implied waiver of any privilege attaching to documents referred to or associated with the affidavit. But a waiver might still be held to arise by virtue of a tender of the affidavit at the hearing or other 'considerations of fairness'. 179 We think it appropriate to add that this last conclusion creates the distinct possibility (already mentioned in another context at [63]) that the Bar Association, having successfully maintained a claim to privilege for some at least of the documents produced by Mr Robertson, will ultimately be ordered to disclose the documents following a ruling at the substantive hearing that it has implied waived the privilege by tendering his affidavit. A likely further consequence, which usually entails inconvenience and expense for all concerned, is that an adjournment of this hearing becomes necessary. The Bar Association should, we think, take these matters into account when considering its response to our rulings regarding its claim to privilege. Our conclusions and orders 180 We have held (at [164]) that there are reasons for thinking that some at least of the documents sought in the summons to Mr Robertson are not privileged, despite the Bar Association's claim that they are all privileged. We have also pointed out (at [161]) that the Association has not identified the documents that it claims to be privileged or filed affidavit evidence in support of its claim. 181 In addition, we have held (at [179]) that if any of these documents are indeed privileged, the privilege has not been waived by the filing and serving of Mr Robertson's affidavit. But a waiver might still be held to arise by virtue of a tender of the affidavit at the hearing or other 'considerations of fairness'. 182 In these circumstances, orders to the following effect are appropriate:- (a) Within fourteen days of the date of these reasons (or such further time as may, on application, be allowed), the Bar Association should (i) file and serve a list of the documents produced by Mr Robertson in response to the summons to him dated 27 February 2007 with respect to which it maintains its claim to legal professional privilege and (ii) file and serve an affidavit in support of this claim. (b) Following compliance by the Bar Association with the preceding order, the Respondent is to be permitted to inspect and copy any of the produced documents with respect to which privilege is not claimed. 183 The matter is set down for further directions at 9.30 a.m. on Tuesday 16 October 2007.

Council of the New South Wales Bar Association v Archer

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