Council of the New South Wales Bar Association v Archer

REASONS FOR DECISION INTRODUCTORY MATTERS The Information presented against the Respondent 1 On 9 October 2003, the Council of the Bar Association of New South Wales ('the Bar Association'), as Applicant, filed in the Tribunal an Information containing two complaints under Part 10 of the Legal Profession Act 1987 ('the LP Act') against Stephen John Archer, the Respondent. 2 The Bar Association alleges that the Respondent, a legal practitioner within the meaning of s 128 of the Act, has been guilty of professional misconduct. In the Second Schedule to the Information, it requests the Tribunal (a) to find to this effect; (b) to find also that he is not a fit and proper person to remain on the Roll of Legal Practitioners; and (c) to order that his name be removed from the Roll or, in the alternative, to make an order under any one or more of sub-paragraphs (b), (c), (d), (e) or (f) of sub-section 171C(1) of the LP Act. 3 The two grounds on which the Bar Association seeks a finding of professional misconduct are set out in the First Schedule to the Information. They are as follows:- 1. Stephen John Archer failed to discharge his legal and civic obligation to pay income tax for the years ended 30 June 1988 to 30 June 2002, adequately or at all. 2. Stephen John Archer failed to make provision, or any adequate provision from income he had received, for the payment of income tax for the years ended 30 June 1988 to 30 June 2002. 4 In the Particulars to Ground 1, reference is made to the making of two sequestration orders against the estate of the Respondent, dated respectively 18 December 1991 and 21 March 2002. It is stated that each of these was made following the presentation of a creditor's petition by the Deputy Commissioner of Taxation. The Particulars state also that on 7 April 1997 the Respondent was made bankrupt on his own petition, with the Deputy Commissioner of Taxation as his most substantial creditor. 5 The Particulars to Ground 2 set out four matters in the following terms:- (a) Stephen John Archer, having entered into an agreement with his wife on 29 March 1988 which was registered under the Family Law Act 1975 ("the Agreement"), chose to make payments to his wife in purported performance of the Agreement, in circumstances where, had he approached the Family Court for an order to vary the Agreement, the Agreement would have been varied such that he could have, had he chose to do so, met his obligations under the Agreement and discharged his legal and civic obligations to pay tax. (b) Stephen John Archer chose not to approach the Family Court to vary the Agreement, although he knew that he could not, or that it was unlikely that he would be able to, comply both with the Agreement and with his legal and civic obligation to pay tax. (c) Stephen John Archer chose to incur debts in respect of goods and services and other items for his own benefit and that of his family and associates and to discharge those debts in preference to the debt which arose in favour of the Australian Taxation Office by reason of assessments issued to him from time to time, following filing of income tax returns by him. (d) Stephen John Archer preferred to pay debts other than tax debts in circumstances where he knew that, irrespective of whether he paid his tax debt, he would continue to enjoy the benefits available to the public as a result of the expenditure of public funds, whereas if he were not to pay other debts, his standard of living would be adversely affected. The Bar Association's applications relating to summonses to produce documents 6 This judgment contains our decisions on three applications that were filed by the Bar Association on 9 December 2004. Two of these related to summonses to produce documents that were issued at its request under s 84(3) of the Administrative Decisions Tribunal Act 1997 ('the Tribunal Act'). We will deal first with these two applications. 7 One of them was for an order that the Respondent should be examined as to his compliance with a summons to produce documents issued on 10 November 2003 at the request of the Bar Association. The scope of this summons was reduced to a limited extent by an order of the Tribunal dated 25 February 2004. 8 In the judgment in which we made this order (New South Wales Bar Association v Archer [2004] NSWADT 38), we summarised at [13] the range of documents which the Respondent was initially required to produce:- In the summons to the Respondent, 16 categories of documents were listed. In addition to his passport or passports since 1 July 1987, these included all documents and records since this date relating to the following: his dealings with the Australian Tax Office, his bank accounts, his credit card accounts, his financial affairs generally, any family trust or superannuation scheme set up by him or for his benefit, the operation of the Agreement with his wife, the sequestrations and subsequent administration of his estate and any court proceedings for a money judgment against him. 9 At [48], we summarised our decision to reduce the scope of the summons: … we do not believe that the test of relevance is satisfied by the requirements in the summons to the Respondent to produce (a) all records relating to 'any family trust' and (b) all records relating to 'any superannuation scheme'. These are respectively items 1.6 and 1.8 in the summons. 10 The Bar Association advised us through its counsel that it was not satisfied with the extent of production pursuant to the summons in its reduced form. 11 Secondly, the Bar Association applied for an order that Sarah Anne Archer, who is the wife of the Respondent, be examined as to her compliance with a summons to produce documents issued on 18 March 2004 at the request of the Bar Association. 12 The scope of this summons was substantially reduced in a decision of the Tribunal dated 13 October 2004 (Council of the New South Wales Bar Association v Archer (No 3) [2004] NSWADT 232). In consequence, the only categories of documents required to be produced were those described in clauses 1.3 and 1.7 of the summons. These state: 1.3 All records (electronic or otherwise) from 1 July 1987 to date relating to the payment to you of any money by Stephen John Archer and all records from 1 July 1987 to date relating to any payments by Stephen John Archer on your behalf. 1.7 All documents and records (electronic or otherwise) evidencing any payment to or on behalf of Stephen John Archer for the period 1 July 1987 to date and without limiting the generality thereof correspondence, invoice (sic), statements, cheque butts, electronic banking records. 13 At the hearing of the present applications, a letter was tendered indicating that no documents have been produced in response to this summons. We were advised that the Bar Association is not satisfied with this outcome. The Tribunal's power to order examination of recipients of summonses 14 On 26 May 2005, we heard submissions from Mr Garling QC (representing the Bar Association), the Respondent (appearing on his own behalf) and Mr Ireland QC (representing Mrs Archer) on four issues. 15 These questions were: (1) whether the Tribunal, at least in proceedings within the Legal Services Division, has the power to make orders of the type sought by the Bar Association; (2) if so, what circumstances warrant an exercise of the power; (3) if the power is exercised, what general principles should govern the scope of any examination conducted; and (4) whether hearings of interlocutory applications such as these, forming part of proceedings for professional misconduct, fall within the scope of s 168(1) of the LP Act, which requires the Tribunal to observe the rules of law governing the admission of evidence. 16 In our decision on these questions, which we delivered on 27 May 2005, we ruled as follows (Council of the New South Wales Bar Association v Archer (No 6) [2005] NSWADT 149): 1. The Tribunal possesses the power to make an order for examination of the recipient of a summons issued under s 84 of the Tribunal Act. 2. In determining whether an appropriate case has arisen for exercise of this power, the question to be asked is whether there is a 'real issue' as to the sufficiency of such production as has occurred. 3. The range of matters that may be addressed in examination of the recipient of a summons is as outlined in paragraph 65 of these reasons [the reference should in fact have been to paragraph 64]. 4. Section 168(1) of the LP Act, requiring the rules of evidence to be applied, should extend to each of the present applications for examination of the recipient of a summons. 17 In using the phrase a 'real issue' in the second of these rulings, we relied on the decision of Hamilton J in Lewis v Nortex Pty Limited [2002] NSWSC 1064, at [5]. We quoted also his Honour's observation at [6] that 'perhaps in an ordinary case the court may be sceptical and not prone to exercise discretion upon a simple statement of non-acceptance'. 18 We referred to two further authorities on this point. In Ishac v David Securities Pty Limited, Unreported, Supreme Court of New South Wales, 13 December 1991 (reported by Butterworths as BC 9101344), Young J said at page 4 that an examination such as we are now concerned with could be conducted 'where there appears to be an unsatisfactory answer to a notice to produce'. In Trade Practices Commission v Arnotts Ltd (No 2) (1989) 21 FCR 306 at 313, Beaumont J held that the discretion to order an examination was exercisable when 'an issue had arisen' as to the existence of any of the documents sought. 19 These three cases were the only authorities that counsel could draw to our attention on this specific question. 20 With reference to the third of our rulings, we stated in our judgment at [64] that both parties appeared content to adopt as an authoritative statement of relevant principles the following passage in Beaumont J's judgment in Trade Practices Commission v Arnotts at 312-313. His Honour was there reproducing the following passage by Justice Moffitt in a book edited by H H Glass (Glass JA as he subsequently became), Seminars on Evidence, 1970, at 10-11: There seems no reason why the court should not have a discretion to ask of the person required to produce documents questions for this purpose, either informally or on oath. In exercising such a discretion the court would not infringe the privilege of a person not to incriminate himself, having regard to the fact that deliberate non-compliance with a subpoena is a contempt of court with penal consequences…. Any such discretion could not extend as far as conducting a discovery process…. The precise limits of questions of a person subpoenaed to produce documents are debatable, but it seems that a judge could ask and possibly permit to be asked, questions informally or on oath to ensure that the party understood the terms of the subpoena and the documents referred to and his obligation thereunder, including his obligation regarding documents in his possession or power and relating to search. If the judge thought fit no doubt he could exercise a power under section 12 of the Evidence Act [this being the Evidence Act then in force] to give a more specific order to such a person when before the court. It would seem, however, that questions could not extend to establishing proof that the person was in contempt of court, nor could they be of the search and inquiry type such as to the person's knowledge as to the location of documents not in his present possession or control, or as to the nature of other documents in his possession not within the scope of the subpoena, or as to a system of books or the like, so that this material could be used to search for other evidence or to enable a different subpoena to be framed. Questions asked of a stranger, whether informal or on oath and whether relating to a claim of privilege or otherwise do not constitute evidence in the trial. Such inquiry is a function exercised on the responsibility of the judge and is merely ancillary to the trial. Probably the person should be sworn, not ad testificandum but to make true answer to all such questions as the court should demand of him. 21 Our fourth ruling was not based on a decision that s 168(1) of the LP Act was definitely applicable. We stated that we considered this to be probably the case, but that in any event the rules of evidence should apply. We held that this was a permissible approach for us to take under s 73(2) of the Tribunal Act, which empowers the Tribunal to determine its own procedure. 22 Our judgment in Council of the New South Wales Bar Association v Archer (No 6) concluded as follows (at [70]): The outcome of these rulings is that it is now open to the Informant in these proceedings to adduce such evidence as it may wish in support of its applications. 23 Having delivered this judgment on 27 May 2005, we heard evidence and submissions on that day relating to the Bar Association's application for Mrs Archer to be examined. We also commenced to hear evidence and submissions relating to the equivalent application against the Respondent. 24 This hearing continued on 26 and 27 July 2005. The Respondent did not appear on the second of those days. We determined that he should have the opportunity, after receiving a copy of the transcript of proceedings, to make submissions in writing in response to arguments put to us on that day on behalf of the Bar Association. He has availed himself of that opportunity. THE APPLICATION AGAINST THE RESPONDENT The evidence tendered by the Bar Association 25 In making this application, the Bar Association relied on parts of an affidavit dated 23 December 2004, sworn by its solicitor in these proceedings, Mr Alan Blanch. Included amongst a number of documents exhibited to him when swearing this affidavit were copies of correspondence passing between him and solicitors representing the Respondent, relating to the Respondent's objections to the breadth of the summons to produce dated 10 November 2003 and addressed to him. Annexed to the affidavit was a schedule of the documents that the Respondent produced on or about 17 March 2004 in response to the summons, following our decision of 25 February 2004 reducing its scope (see [7 - 9] above). 26 In addition to a copy of a letter from the Respondent to the Tribunal dated 9 March 2004, the documents that the Respondent produced were (a) statements, covering the period from 30 April 2002 to 29 September 2003, relating to a bank account held by him at the St George Bank; (b) photocopies of 53 cheque receipt butts, dated between 25 June 2002 and 22 August 2003; (c) a letter dated 23 July 2003 from a Mr John Melluish to the Respondent; and (d) a letter dated 13 October 2003 from the Respondent to Mr M C Donnelly, of Ferrier Hodgson. The roles of Mr Donnelly and Ferrier Hodgson in this matter are outlined below. 27 Mr Blanch deposed that, according to his understanding, Insolvency and Trustee Service Australia ('ITSA') had been appointed as the Official Trustee of the Respondent's estate in his bankruptcies of 18 December 1991 and 7 April 1997. In response to a summons to produce served on 14 November 2003, ITSA had produced a number of documents to the Tribunal. These were listed in a schedule annexed to the affidavit. Included in the exhibited material accompanying the affidavit were copies of some of these documents, comprising letters passing between ITSA and the Respondent within the period from 18 December 1991 to 21 August 2001. 28 Mr Blanch also deposed that, according to his understanding, Mr M C Donnelly, of Ferrier Hodgson, a firm of insolvency experts, had been appointed as the Official Trustee of the Respondent's estate in his bankruptcy of 21 March 2002. In response to a summons to produce served on 14 November 2003, Ferrier Hodgson had produced a number of documents to the Tribunal. These were listed in a schedule annexed to the affidavit. Included in the exhibited material were copies of some of these documents, comprising letters passing between Mr Donnelly and the Respondent within the period from 25 March 2002 to 18 June 2003. 29 The exhibited material also included a copy of the agreement for separation made in March 1988 between the Respondent and Mrs Archer ('the Separation Agreement'), referred to in paragraph (a) of the Particulars to Ground 2 of the Information. 30 Also exhibited were copies of five schedules that were included in the documents that Ferrier Hodgson produced to the Tribunal. 31 According to advice given to Mr Blanch by Ms Angela Gallucci, an employee of Ferrier Hodgson, these schedules comprised (1) a schedule of the payments made by the Respondent to Mrs Archer between 9 March 2001 and 18 March 2002 in compliance with the Separation Agreement, as disclosed in the material provided by the Respondent to Ferrier Hodgson; (2) a schedule, derived from the same source, of cash withdrawals and payments made by the Respondent between 23 May 1997 and 30 June 1999, including various designated payments by cheque to Mrs Archer; (3) a similar schedule, derived from the same source, covering the period between 30 June 1999 and 25 September 2001; (4) a summary of the three preceding schedules; and (5) an estimate of the payments that the Separation Agreement obliged the Respondent to make to Mrs Archer during the period from March 1988 to August 2002. According to the advice given to Mr Blanch by Ms Gallucci, Mr John Boyce, an accountant then employed by Ferrier Hodgson, had prepared the last of these documents. 32 Also exhibited (with the text reproduced in the affidavit) were copies of extracts from the transcripts of examinations of the Respondent in each of his three bankruptcies (dated 18 December 1991, 7 April 1997 and 21 March 2002 respectively) that are referred to in the Particulars to Ground 1 of the Information. The dates of these examinations were 1 December 1992, 3 June 1997 and 19 February 2003. In addition, there were copies of two extracts from the transcript of an examination of Mrs Archer on 4 April 2003 in the last of the Respondent's bankruptcies. 33 The exhibited material also included a copy of a report dated May 1992 regarding the Respondent, which was commissioned by the Westpac Banking Corporation ('Westpac'). It was prepared by a person or entity identified on the first page as 'MGL'. It deals with aspects of the Respondent's and Mrs Archer's financial affairs between 1986 and 1992. It was included in the documents produced to the Tribunal under summons by Ferrier Hodgson. 34 Finally, the exhibited material included copies, also produced by Ferrier Hodgson, of the Respondent's income tax returns for the tax years 1988 to 1991 inclusive, 1996, 1997, 2000 and 2002. Amongst some accompanying tax documents was a taxation estimate for 1995. 35 The Respondent raised objections on a number of grounds to the admission of all these parts of the affidavit, along with the annexed and exhibited material, except for some formal paragraphs and the schedule of the documents that he himself had produced to the Tribunal. He pointed out that, in a ruling outlined above at [16] and [21], we had held that the rules of evidence applied to each of the two applications for examination with which we are dealing. 36 Having heard detailed argument on the matter, we overruled the Respondent's objections to this evidence, subject to two exceptions. These related to (a) a paragraph in the affidavit setting out a provision of income tax legislation and (b) a further paragraph setting out a named chartered accountant's opinion as to what types of document he would expect the Respondent to have created and maintained. 37 In announcing this determination, we indicated that we would give detailed reasons in the present judgment. We do so now, discussing in turn each of the grounds of objection that the Respondent raised. Lack of authentication of documents 38 The Respondent's submissions. The Respondent's objection in this regard was based on the judgment of Bryson J in National Australia Bank Ltd v Rusu (1999) 47 NSWLR 309. In this case, the plaintiff bank sued various parties to recover money allegedly stolen from it. The defendants were unrepresented. Counsel for the plaintiff tendered two pages (referred to in the judgment as 'pages 25 and 26') of what appeared on their face to be the first two pages of a transaction history inquiry in relation to an account identified by number. He asked the Court to find that these pages related to an account held at another bank, the Advance Bank, by the second defendant. 39 There was evidence that pages 25 and 26 formed part of a bundle of documents produced by the Advance Bank in response to a subpoena. This subpoena actually called for bank records covering a different period. There was also evidence that Advance Bank's customers at the time included a person with a name similar to that of the second defendant. However, nothing on the face of pages 25 and 26 identified either the bank or the customer. A solicitor acting for the plaintiff alleged in an affidavit that the second defendant had paid a large sum of money into the Advance Bank account on the day after the alleged theft. 40 Bryson J rejected the tender, on the ground that the authenticity of pages 25 and 26 had not been established. On this issue of authentication, he said (at 312): Before a business record or any other document is admitted in evidence it is obviously necessary that there should be an evidentiary basis for finding that it is what it purports to be. Documents are not ordinarily taken to prove themselves or accepted as what they purport to be; there are exceptions under the common law and under statute for public registers and for many kinds of documents when certified in various ways…. At the simplest, the authenticity of a document may be proved by the evidence of the person who made it or one of the persons who made it, or a person who was present when it was made, or in the case of a business record, a person who participates in the conduct of the business and compiled the document, or found it among the business' records, or can recognise it as one of the records of the business. 41 His Honour then referred to various ways in which authenticity may be established (for example, under rules of court relating to discovered documents) but stated that none of these were applicable in the case before him. He indicated that a method of proving the 'previous representation' contained in pages 25 and 26 was to rely on the 'business records' provision - that is, s 69 - of the Evidence Act 1995 ('the EA'). At 314, he stated that under s 69(1), one of the matters that the plaintiff would have to establish in order to invoke this provision would be that pages 25 and 26 were 'part of records belonging to or kept by the Advance Bank in the course of its business'. He said also, at 313, that s 69(1) 'relates to authentication'. 42 At 314-315, Bryson J held that this requirement of authentication was not eliminated by either s 51 or s 48(1) of the EA. Section 51, he said, abolished the previous law relating only to the question of the 'means' of proving the contents of a document. This was also the question addressed by s 48(1). Both provisions left untouched 'the need to establish that a document is what it purports to be'. 43 At 315, Bryson J made the following observation, on which the Respondent placed strong reliance:- So far as I am aware there is no judgment which has decided that under the Evidence Act 1995 the authenticity of a document tendered in evidence may be determined simply on the basis of the form and contents of the document or on that basis taken with information about the source from which it was produced showing that it was produced on subpoena. 44 At 317, his Honour stated that the plaintiff needed to show that pages 25 and 26 met 'the three requirements of s 69' and that the standard of proof for a fact on which the admissibility of evidence depended was the balance of probabilities, as required by s 142 of the EA. Referring to the test of relevance set out in s 55(1), which he described as 'a test stated with studied breadth', he said:- … it appears to me as a matter of fact that Advance Bank's behaviour in producing a document in response to the subpoena could rationally affect the assessment of the probability of the existence of facts which make the document a business record within s 69. 45 He went on to hold, however, at 317, that as 'means of proof' of the records of Advance Bank, the circumstances relating to its response to the subpoena were 'vehemently unsatisfactory' and that there 'far better means of proving the authenticity of bank statements' were 'obvious and ready to hand'. At 318, he stated that he was not satisfied that pages 25 and 26 were what they were alleged to be, namely business records - specifically, bank statements - of the second defendant's account with this bank. 46 The Respondent argued that Rusu was a case of high authority, particularly because it had been approved by the Court of Appeal in Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25. Here, in the course of discussing a ground of appeal claiming error by a trial judge in placing reliance on a set of clinical notes of unknown origin, Heydon JA (with whom Priestley and Sheller JJA agreed) stated at [46]:- ... if the document was of unknown origin, it could have been objected to as unauthenticated and irrelevant. The Evidence Act 1995does not permit documents to authenticate themselves save in limited circumstances ( National Australia Bank Ltd v Rusu (1999) 47 NSWLR 309). 47 The Respondent also relied on three more cases in which aspects of the judgment in Rusu were applied or cited with approval. These were Kingham v Sutton (No 3) [2001] FCA 1117 at [127], Citibank Ltd v Chiu Wah Liu [2003] NSWSC 236 at [3] and New South Wales Crime Commission v Rinh [2003] NSWSC 811. In the second of these cases, Hamilton J held that in an interlocutory proceeding (such as the present application) the requirement of authentication of documents must still be satisfied, notwithstanding the provision in s 75 of the EA that parties may adduce hearsay evidence so long as they also adduce evidence of its source. 48 The Respondent contended that, in the light of these authorities (notably the Court of Appeal's observations in Daw), we should take no account at all of some judicial and academic doubts that had been expressed about the breadth of the principles stated in Rusu. We outline below the nature of those doubts. 49 In developing his objections based on Rusu, the Respondent also argued at one point that the requirement of authentication was derived solely from the common law, being untouched by the EA. This, he said, was why Bryson J made no mention of s 183 of the EA in his judgment. This section provides that if a question arises about the application of a provision of the Act in relation to a 'document or thing', the court may examine the 'document or thing' and may 'draw any reasonable inferences from it as well as from other matters from which inferences may properly be drawn'. 50 In the Respondent's submission, all of the copied documents accompanying Mr Blanch's affidavit (except for the annexed schedules of documents produced to the Tribunal and the copy of the Separation Agreement) and all the extracted paragraphs from transcripts of bankruptcy examinations were not properly authenticated as required by the principles stated in Rusu. The Tribunal, he maintained, could not be satisfied on the balance of probabilities that these documents were what they purported to be. This was particularly the case with the schedules that Ferrier Hodgson had produced to the Tribunal (see [30 - 34] above). These, he said, had been prepared by one or more unidentified people from unidentified sources, then provided to Mr Blanch in unidentified circumstances, together with advice from a named person (Ms Gallucci) who had not been called as a witness. 51 The Respondent acknowledged that his objections based on the Rusu decision were of a technical nature. But they were, he said, objections based in legal principle and should therefore be upheld. 52 The Bar Association's submissions. Mr Garling submitted that in determining the principles relating to authentication of documents, Bryson J's judgment in Rusu had to be read in conjunction with more recent authorities, notably the judgment of Austin J in ASIC v Rich [2005] NSWSC 417. 53 In that judgment at [95 - 104], Austin J reviewed the reasoning of Bryson J in Rusu, describing it (at [104]) as 'an important and persuasive analysis'. At [105 - 107], he referred to Daw v Toyworld and the other authorities (noted above at [47]) in which this reasoning had been applied or approved. He then went on, at [108 - 115], to outline various criticisms that had been made of it. 54 Austin J referred first to criticism in the fifth edition (2002) of Uniform Evidence Law by Stephen Odgers SC, at page 140 (now in the sixth edition (2004) at page 183). With reference specifically to Bryson J's discussion of s 58(1) of the EA, which deals with the relevance of documents, the author interpreted Bryson J as saying that a court may not draw reasonable inferences from a document as to its authenticity. The author suggested that this proposition would be inconsistent with the intention behind s 58(1) and its legislative history. 55 Austin J then referred to the judgment of Madgwick J in a decision of the Full Federal Court, Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 305. Madgwick J, having cited the passage from Odgers and described Rusu as 'controversial NSW authority', said, at [25]:- In Rusu , his Honour may have meant no more than that there may be cases in which, as a matter of fact, no inference as to authenticity of a document may be properly drawn from the document itself. If he meant to say more than that, it is by no means clear to me that the way is open for a court to read some unexpressed limitation into a grant of power to courts: such grants are generally very liberally construed … Such an approach may be particularly apt where, as here, the provision aims at putting another nail in the coffin of unmeritorious technicality in litigation and s135 provides ample safeguards against possible abuse of the section. 56 The next case that Austin J mentioned in Rich was a decision of the Court of Appeal of the Australian Capital Territory, O'Meara v Dominican Fathers [2003] ACTCA 24. He quoted the following observations on Rusu in the judgment of Gyles and Weinberg JJ at [85]:- In that case, his Honour appeared to hold that the fact that a bank had produced copy bank statements on subpoena did not prove that they were bank statements of the relevant account that was identified on them, and that further proof of authenticity was required. We have considerable doubt as to the applicability of that decision to the present circumstances. Admissibility of evidence is to be judged on the balance of probabilities (s 142), with the benefit of the inferences to which we have already referred (s 183), with the facilitating provisions of s48 and (in the present case) s 146, dealing with evidence produced by processes, machines and other devices. Rusu may also be at odds with the thrust of the judgments in Albrighton v Royal Prince Alfred Hospital [1980] 2 NSWLR 542, per Hope JA at 547-550 and Hutley JA at 565-571, although the text of the legislation there in question differed from the Evidence Act. Albrighton does not seem to have been cited to Bryson J in Rusu . 57 Austin J's own comments on these reactions to Rusu included the following (Rich at [114 - 115]):- 114 In my opinion, the suggestion that Rusu may be at odds with Albrighton relates to Bryson J's unwillingness, in the case before him, to draw inferences as to authenticity from the face of the document and circumstances of its production…. 115 It therefore seems to me that the point made about Rusu in O'Meara is essentially the same as the criticism made by Madgwick J in Lee and by Mr Odgers, namely that authentication may be established by inferences, including inferences from the form and contents of the document tendered. 58 Having agreed, at [116], that it would clearly be absurd, as Bryson J made clear in Rusu, for the law to dispense wholly with the need to prove the authenticity of a document, Austin J went on:- 116 … On the other hand, it is important not to set the bar too high for the authentication of documents, because if too much is demanded, the authentication requirement will fight against the policy underlying the business records provisions which, as Hope JA remarked in Albrighton (at 548), is 'of great importance in the search for truth'. That policy recognises that any significant organisation depends for its efficiency upon the keeping of proper records, to be used and relied upon in the everyday carrying on of the activities of the business and therefore likely to be accurate, and "likely to be a far more reliable source of truth than memory" ( Albrighton , at 548-549 per Hope JA; see also Australian Law Reform Commission, Interim Report on Evidence (Report No 26, vol 1), at [709]). It is reflected in the terms of s 69, which makes hearsay representations in business records admissible without requiring evidence from their authors. 117 The law responds to these competing concerns in a commonsense way, bearing in mind the distinction between authentication and the weight or probative value of the documents. In Rusu, Bryson J did not deny that inferences may be drawn from the document itself, relevant to the question of authenticity. Apart from s 58(1), there is express statutory authority to do so in s 183, when a question arises about the applicability of a provision of the Evidence Act. But Rusu insists on the need for authenticity to be established, and asserts that authentication cannot be achieved solely by drawing inferences from the face of the document where there is no other evidence to indicate provenance. The other cases do not deny these propositions, in my opinion. 59 Mr Garling relied on these statements in Rich, notably in so far as they showed (a) that on the issue of authentication it was 'important not to set the bar too high' on account of the policy objectives underlying the business records provisions; (b) that the matter should be approached 'in a commonsense way'; (c) that s 183 of the EA (which we have outlined above) could be invoked by a party tendering a document; and, most significantly, (d) that Rusu did not establish that, in determining authentication, inferences could not be drawn from the document itself. 60 He also argued that, in interpreting Rusu, it was important to remember that the proceedings involved allegations of a particularly serious nature - specifically, that the defendants, who were unrepresented, had been involved in various ways with the theft of substantial sums of money. This provided a sound reason why Bryson J should have been particularly concerned with the issue of authentication of any documents tendered by the plaintiff. No such special concerns, he said, arose in the present proceedings. They were interlocutory proceedings, the the documents were not being tendered in order to prove the truth of their contents and the Respondent, a barrister, was fully capable of raising legitimate objections to the tender. 61 Mr Garling advanced reasons why the exhibited documents relating to Mr Blanch's affidavit (they are outlined above at [27 - 34]) should be held to have been duly authenticated. For this purpose, he divided them into three groups. 62 Two of these groups of exhibited documents contained documents produced to the Tribunal by ITSA and by Ferrier Hodgson respectively. In Mr Garling's submission, ITSA's role as trustee of the Respondent's estate in his bankruptcies of 18 December 1991 and 7 April 1997 and the role of Mr Donnelly, of Ferrier Hodgson, as trustee in the bankruptcy of 21 March 2002 were sufficiently attested to in Mr Blanch's affidavit and were in any event matters of public record. The copies of documents produced by each of these organisations formed part of its records, kept for the purpose of conducting its affairs, within the meaning of s 69(1) of the EA. 63 The exhibited documents produced by ITSA were all copies of letters between it and the Respondent. They constituted an exchange of correspondence, in which each of them replied more than once to a letter recently received from the other. Letters from the Respondent bore a signature that appeared to be his signature. He had not at any time claimed to the contrary. Having regard to these aspects of the appearance of the documents and the circumstances in which ITSA both kept them and produced them to the Tribunal, there was ample evidence that they were what they purported to be and should therefore be admitted under s 69 of the EA. 64 The exhibited documents produced by Ferrier Hodgson similarly included copies of letters between it and the Respondent, constituting an exchange of correspondence and containing what again appeared to be signatures of the Respondent. There were also some additional documents - for example, copies of the Respondent's bank statements - that the text of a letter showed to have been annexed to, or enclosed with, the letter. In one of his letters to Ferrier Hodgson, the Respondent stated that he was enclosing copies of a number of records of his financial affairs. The records listed were those produced by Ferrier Hodgson to the Tribunal and listed in one of the annexures to Mr Blanch's affidavit. 65 In this correspondence, Ms Gallucci's role as an employee of Ferrier Hodgson having responsibilities with regard to the Respondent's bankrupt estate was clearly indicated. Together with Mr Blanch's reference in his affidavit to the advice that he had received from Ms Gallucci, this sufficiently showed that the five schedules listing payments made by the Respondent, or due to be made by him under the Separation Agreement (see [30 - 31] above), were, as stated in the affidavit, prepared by or for Ferrier Hodgson on the basis of documents (including the Separation Agreement) that the Respondent had provided to it. 66 The remaining exhibited documents drawn from those produced by Ferrier Hodgson to the Tribunal were copies of the 1992 report commissioned by Westpac, and of tax returns and other tax documents of the Respondent (see [32 - 34] above). Mr Garling contended that the appearance, form and provenance of these documents - in particular, the appearance of the Respondent's signature on the tax returns - constituted sufficient evidence of authenticity. 67 The third group of exhibited documents identified by Mr Garling were the copies of extracts from the transcripts of examination of the Respondent and of Mrs Archer in the Respondent's bankruptcies. Mr Garling indicated that, if necessary, the whole transcripts could be tendered to show their authenticity. But he claimed that, in the absence of any direction from the Tribunal to do so, or of any insistence by the Respondent that this should be done, he could rely on their appearance, form and provenance to establish authenticity. 68 Our conclusions. Our principal reason for ruling against the Respondent's objections on the ground of lack of authenticity is that, in our opinion, the criteria of authentication laid down in Rusu, properly understood, are not so strict as to prevent us inferring that the copies of documents exihibited to Mr Blanch's affidavit are in fact what they purport to be. 69 An important proposition in Rusu on which the Respondent relied is that the authenticity of a document tendered in evidence cannot be determined 'simply on the basis of the form and contents of the document or on that basis taken with information about the source from which it was produced showing that it was produced on subpoena'. This phrase (which we have already quoted once in this judgment) is to be found in Rusu at 315 and, indeed, in the headnote to the case. 70 It may be noted, however, that Bryson J did not state this proposition in these absolute terms. He said only that as far as he was aware there was no judgment that a document tendered under the EA could be authenticated on the basis indicated. 71 Moreover, neither this statement nor any other part of his Honour's judgment indicates that no inferences whatsoever regarding authenticity may be drawn from 'the form and contents of the document' or from 'information about the source from which it was produced showing that it was produced on subpoena'. Bryson J in fact said, at 317, that the behaviour of a bank (the Advance Bank) in producing a document in response to a subpoena could 'rationally affect the assessment of the probability of the existence of facts which make the document a business record within s 69'. This appears at least to open up the possibility that, in his view, evidence of production of a document under a subpoena, taken in conjunction with inferences drawn from its form and contents, could in an appropriate case amount to authentication. 72 Contrary to a submission by the Respondent, we consider also that a party tendering a document may rely on s 183 of the EA (the substance of which we have set out above at [49]), at least when it is tendered as a business record. Section 183 authorises a court to examine any document tendered and to 'draw any reasonable inferences from it as well as from other matters from which inferences may properly be drawn'. 73 In contesting this view, the Respondent maintained that the issue of authentication was governed entirely by the common law, whereas according to its express terms s 183 only applies to questions arising under the EA. He relied also on the fact that Bryson J made no mention of s 183. But Bryson J, as passages quoted above from his judgment clearly show, regarded authentication as one of the requirements set out in s 69(1). It must be assumed that s 183 and its possible relevance were not drawn to his attention. Furthermore, in O'Meara v Dominican Fathers [2003] ACTCA 24, Gyles and Weinberg JJ treated s 183 as a relevant provision when the authenticity of a business record is in issue. 74 We will add at this point that we do not attach the weight claimed by the Respondent to the passage in Daw v Toyworld [2001] NSWCA 25, in which Heydon JA, in the Court of Appeal, cited Rusu with approval. His Honour made only passing reference to the case and, more importantly, did not deal at all with the question whether it stood for the particular proposition of law which we are now discussing. The same is true of the other cases supporting Rusu on which the Respondent relied. 75 For these reasons, we agree with Mr Garling that it was not established in Rusu that no inferences whatsoever regarding authenticity may be drawn from the form and contents of a document or from information about the source from which it was produced. 76 According to this reasoning, there is no significant conflict between the principles stated in Rusu and those to be found in ASIC v Rich [2005] NSWSC 417. In the latter case, Austin J stated at [117], 'authentication cannot be achieved solely by drawing inferences from the face of the document where there is no other evidence to indicate provenance'. But, as he stated also, at [115], 'authentication may be established by inferences, including inferences from the form and contents of the document tendered'. In applying these principles, he cautioned against 'setting the bar too high', providing sound policy reasons for this view. 77 To return to the proposition in Rusu with which we commenced this discussion, it may well be that the authenticity of a document tendered in evidence cannot be determined 'simply on the basis of the form and contents of the document or on that basis taken with information about the source from which it was produced showing that it was produced on subpoena'. 78 But this is not the situation here. With the exception of the copies of extracts from the transcripts of bankruptcy examinations of the Respondent and Mrs Archer, the position with the contested documents here is as follows. They were tendered as, and appear on their face to constitute, business records under s 69(1) of the EA. This is because they (a) were kept by a specified entity (ITSA or Ferrier Hodgson) for the purposes of its business and (b) contain representations recorded for the purposes of this business. Furthermore, the basis for the inferences relied on to establish authenticity include, but are not limited to, evidence that they were produced under subpoena by one or other of these entities. In these circumstances, we consider that it is clearly open to us to find, on the balance of probabilities, that some or all of the documents are what they purport to be. 79 In our judgment, on the grounds put forward by Mr Garling, we should indeed make this finding in relation to the copies of documents produced by ITSA and Ferrier Hodgson. In so finding, we take account of the existence of what appears to be the Respondent's signature on a number of them. We agree with Mr Garling's characterisation of some of them as constituting 'exchanges of correspondence'. It is, for all these reasons, more probable than not that these tendered copies of documents are what they purport to be. 80 We might add that the inferences in favour of authenticity are at their weakest with regard to (a) the five schedules prepared by or for Ferrier Hodgson and (b) the report to Westpac. But these documents were produced to the Tribunal by Ferrier Hodgson alongside other documents, such as the letters between it and the Respondent, for which the evidence as to authenticity is distinctly stronger. The case for admitting the five schedules and the report is strengthened to a sufficient extent by their association with documents that more clearly satisfy criteria of authenticity. 81 As to the copies of extracts from the transcript of examinations in bankruptcy in the Federal Court, our conclusion is that this is not a category of document with which the principles in Rusu are concerned. Such extracts are regularly tendered and admitted in court proceedings on the basis that well-established forms of notation are sufficient to identify the proceedings being transcribed. The Respondent did not require the whole of the transcripts to be tendered, despite having an opportunity to do so when responding to Mr Garling's submissions. He raised no objection to the accuracy of the transcription. In these circumstances, we see no reason to reject the tender of these extracts on grounds of authenticity. Secondary evidence of documents. 82 The Respondent objected to some of the tendered material on the ground that it fell within the description 'secondary evidence of documents'. He did not explain this objection at any length, but clearly put it forward as a separate objection to that based on lack of authentication. Mr Garling did not expressly refer to the issue. 83 In the course of dealing with the question of authenticity, we have already explained, at [78] above, that in our view the copies of documents that were produced by ITSA or Ferrier Hodgson fall within the business records provision (s 69) of the EA. At one point, the Respondent argued to the contrary, saying that the documents were not 'kept' within the meaning of this term as used in s 69(1). This suggests that his submission referring to 'secondary evidence' may have been another way of putting his submission regarding s 69(1). 84 In the absence of any other explanation of the gist of this objection, it must be rejected. 85 On the same basis, we do not see how the tender of the copied extracts from transcripts of the bankruptcy examinations in the Federal Court could be refused on the ground that they are 'secondary evidence'. They clearly cannot be rejected, in our view, on the ground that they are not 'business records', and there is no other interpretation that we can give to this objection. Irrelevance 86 The other objection by the Respondent bearing upon a substantial proportion of the annexed and exhibited documents accompanying Mr Blanch's affidavit was on grounds of relevance. His argument was that virtually all of these documents - in particular, those dealing with the periods as far back as the late 1980s and the early 1990s - had no bearing whatsoever on the issue which we had to decide, namely, whether on 10 November 2003, the date of the subpoena addressed to him, he had in his possession any documents within the scope of the subpoena in addition to those which he produced. 87 The Respondent referred, for instance, to a transcribed record of him having said in his bankruptcy examination of 19 February 2003 that until 1995 he had used a card system to record fees due to him as a barrister practising in Perth, but that when he moved to Sydney during 1995 he abandoned this system. In his submissions to us, he asked, rhetorically, how we could derive any assistance whatsoever from this evidence when trying to decide whether he had complied with the subpoena. 88 In response, Mr Garling argued that all the documentary evidence, even the evidence dealing with the late 1980s and the early 1990s, was relevant in at least two ways. First, it showed how, over a long period of time, the Respondent had both conducted a successful legal practice and carried out a series of substantial financial transactions involving his wife (pursuant, at least in some instances, to the Separation Agreement), with the consequence that a significant quantity of financial records must have been generated in each of these contexts. Secondly, it referred on a number of occasions to particular kinds of financial record that were in fact generated. 89 Mr Garling relied also on the legal obligation imposed on taxpayers by s 262A(4)(a) of the Income Tax Assessment Act 1936 (Cth) to retain records created for the purposes of this Act for a period of five years following the filing of the income tax return to which the records relate. In the light of this obligation, he said, evidence regarding the Respondent's systems of financial record-keeping in past years, even as far back as the late 1980s, was relevant in determining what records he might reasonably be expected to have created or acquired from other parties in more recent years and, in the case of documents created in the five years preceding the date of the summons, been required by law to retain. 90 Bearing in mind that the criterion for determining this application by the Bar Association for the Respondent to be examined is whether there is a 'real issue' regarding his compliance with the summons to produce, we are satisfied that the scale and the nature of systems of record-keeping maintained in past years by the Respondent, for the purposes of both his legal practice and his dealings with his wife, are matters of relevance. Undoubtedly, as the Respondent argued, evidence relating to periods such as the late 1980s and the early 1990s would not, if standing alone, assist much, if at all, in determining what records he might be expected to have possessed. But it has a role to play when considered in conjunction with evidence relating to more recent years, and with the obligation imposed by taxation law to retain financial records for at least five years. The merits of the application 91 The Bar Association's submissions. After we had given our ruling admitting into evidence all but a few paragraphs of Mr Blanch's affidavit and all of the annexed and exhibited material, Mr Garling argued to us that, in the light of this material, there was a 'real issue' as to whether the Respondent had complied with the summons addressed to him. 92 It will be recalled (see [26] above) that the only documents produced by the Respondent were statements, covering the period from 30 April 2002 to 29 September 2003, relating to a bank account held by him at the St George Bank, together with a number of cheque butts covering a similar period and three letters. 93 The starting-point for Mr Garling's submissions was the same reasoning as he had employed in rebutting the Respondent's objection on the ground of irrelevance. We have just outlined this reasoning. 94 In addition, Mr Garling pointed to two specific aspects of the evidence, relating specifically to the Respondent's professional activities. 95 First, the copies of tax returns and other tax documents that the Respondent had produced to Ferrier Hodgson disclosed that he had earned substantial sums from his practice as a barrister during the tax years 1999-2000 and 2000-2001 and during the period between 1 July 2001 and the commencement of his bankruptcy on 21 March 2002. His net income during these three periods was shown in the returns as $394,181, $130,200 and $106,012 respectively. His tax return for the first of these periods was dated 6 March 2001 and his returns for the two succeeding periods were dated 12 April 2002. All of these returns bore his signature. It followed, Mr Garling argued, that on each of these two dates the Respondent had in his possession sufficient financial records to complete an income tax return disclosing a significant quantity of professional income. 96 Secondly, when the Respondent sent financial records to Ferrier Hodgson after Mr Donnelly's appointment on 21 March 2002 as trustee of his bankrupt estate, the records sent included tax returns, business activity statements, memoranda of fees and other similar documents relating to the period covered by these tax returns. But the covering letters, dated 15 April and 28 May 2002 respectively and signed by the Respondent, indicated that copies, not the originals, of these documents were being sent. 97 In Mr Garling's submission, it was to be expected that the Respondent would retain the originals. This was because under s 262A(4)(a) of the Income Tax Assessment Act 1936 (Cth), as mentioned above, he was obliged to retain the records relating to these three taxation periods for at least five years following the two dates (6 March 2001 and 12 April 2002) on which he completed and signed the returns. His obligation to do so was indeed stated on the forms of tax return, just below the space where his signature appeared. 98 In such circumstances, Mr Garling submitted, there was clearly a 'real issue' as to whether the Respondent, having sent copies of these financial records to Ferrier Hodgson in April and May 2002 but retained the originals in conformity with his obligations under tax law, still had the originals in his possession when the subpoena dated 10 November 2003 was served on him. If he did, his failure to include them amongst the documents produced in March 2004 constituted a failure to comply with the requirements of the subpoena. 99 In relation to the Respondent's financial dealings with Mrs Archer, Mr Garling referred particularly to the schedule prepared by or for Ferrier Hodgson summarising the amounts that he paid to her between May 1997 and September 2001 and setting out, by way of comparison, the estimated amounts due to be paid under the Separation Agreement. Mr Garling pointed to the scale of the payments due to be made (in 1998-99, more than $120,000), to the scale of the payments actually made (in 1998-99, this amount was $473,000) and also to some complexities within the terms of the Agreement. He argued that, as a matter of ordinary prudence, the Respondent would have created and kept some records of these payments, the latest of which occurred not much more than two years before the issue of the summons. He would have done so in case it was ever alleged that he had not discharged his obligations under the Agreement. 100 Finally, Mr Garling addressed the issue of the range of questions that could be put to the Respondent in any examination. He submitted that, although the principles set out in Trade Practices Commission v Arnotts Ltd (No 2) (1989) 21 FCR 306 at 312-313 (see above, at [20]) placed significant limitations on what could be asked, those limitations were not so severe that an examination would be futile in the present circumstances. 101 In this connection, Mr Garling referred particularly to the following sentence appearing in the judgment in Arnotts:- It would seem, however, that questions could not extend to establishing proof that the person was in contempt of court, nor could they be of the search and inquiry type such as to the person's knowledge as to the location of documents not in his present possession or control, or as to the nature of other documents in his possession not within the scope of the subpoena, or as to a system of books or the like, so that this material could be used to search for other evidence or to enable a different subpoena to be framed. 102 In Mr Garling's submission, this sentence, correctly interpreted, did not preclude questions as to what system or systems of documentation the Respondent had maintained in his personal and professional life, what he had done with documents previously in his possession or what other evidence - for example, the name of a shredding company - might assist in obtaining corroboration of his answers on such matters. This, Mr Garling argued, was because such questions were not 'of the search and inquiry type' and would not necessarily be directed to obtaining material that 'could be used to search for other evidence or to enable a different subpoena to be framed'. These two phrases, he said, should be given full weight in determining precisely what restrictions on questioning were imposed by the sentence. 103 The Respondent's submissions. As indicated above at [24], the Respondent availed himself of the opportunity to file written submissions, despite the fact that he did not appear at the hearing on 27 July 2005. He was supplied with a copy of the transcript of the hearing on that day. His submissions, dated 23 August 2005, were received by the Tribunal on the following day. He stated in a covering letter that they would be served on the solicitor for the Bar Association. 104 These submissions of 23 August 2005 commenced with the statement that the Respondent relied on his earlier submissions of 19 May 2005 and 25 May 2005. 105 The Respondent argued further that the order should not be made since the range of questions that the Bar Association would be entitled to ask was clearly limited by the principles set out in Trade Practices Commission v Arnotts Ltd (No 2). He submitted that the Bar Association would not be entitled to test any answers given by him and that the only examination that could take place would, in effect, be an examination in chief. 106 From this starting point, the Respondent developed the argument that since there could be no doubt that he understood what was sought by the summons and since he had already produced documents to the Tribunal, 'the Tribunal is entitled to believe, prima facie, that the Respondent did not have the documents when served with the summons. That is an end to the matter' (paragraph 12). 107 The Respondent conceded that he 'had many documents in the past' (paragraph 9), but pointed out that the true issue is not whether he had documents in the past but whether he had them at the time he was served with the summons to produce. In response to Mr Garling's contention that although he had sent copies of a number of such documents to Ferrier Hodgson, his trustee in bankruptcy, he was still obliged by s 262A(4)(a) of the Income Tax Assessment Act 1936 to retain the originals, the Respondent claimed that no obligation of this nature remained under this Act once copies of the relevant documents had been delivered by a bankrupt person to his/her trustee in bankruptcy. 108 He also submitted that he was not obliged to make any explanation to the Tribunal concerning what has happened to the documents. In particular, he disputed the claim that he could be asked what other evidence, such as the name of a shredding company, might assist in obtaining corroboration of his answers regarding his disposal of relevant documents that were previously in his possession. 109 Finally, he referred to the fact that the Bar Association made no complaint, by letter or otherwise, to the adequacy of the production of documents between March and December 2004. It followed, he claimed, that there could be no real issue as to whether the response was adequate. 110 Our decision. In our opinion, there is a 'real issue' as to whether the Respondent has complied with the requirements of the summons, and it is appropriate that he be examined in order to determine whether in fact he has complied with it. 111 We agree with the Respondent that it is quite plain that he had many documents in the past. Since he carried on practice as a barrister, one would expect he would have documentation relating to his practice. It is to be expected that in order to comply with s 262A(4)(a) of the Income Tax Assessment Act 1936 (Cth), he would retain such documents for a period of five years after the lodging of his taxation returns. We see nothing in this Act to support his contention that his obligation under this provision ceased once he had delivered copies of these documents to his trustee in bankruptcy. 112 We acknowledge that in exercising our discretion in this matter we must take account of the limitations on the range of questions that may be put to the Respondent. On this important question, however, we agree in general terms with Mr Garling's argument that the sentence quoted above from Trade Practices Commission v Arnotts Ltd (No 2) is primarily concerned to rule out questions that are 'of the search and inquiry type' and/or are directed to obtaining material that might assist in obtaining other evidence. We are inclined to accept the Respondent's specific contention that to require disclosure of the name of a shredding company would go beyond the permitted limits. But this would not, in our view, be the case with all other questions relating to the circumstances in which documents previously in the Respondent's possession ceased to be in his possession, notably where it might reasonably be expected that they would have remained in his possession until the date of service of the summons. 113 We note finally that the Tribunal has a statutory duty under s 73(5)(b) of the Tribunal Act to 'ensure that all relevant material is disclosed to it so as to enable it to determine all of the relevant facts in issue in any proceedings'. 114 Having regard to all these considerations, we believe that we should accede to the Bar Association's application for an order that the Respondent be examined as to whether his response to the summons constitutes full compliance. While we have dealt in general terms with the issue of what questions the Bar Association is entitled to ask, the precise range of permissible questions is a matter best reserved for determination in the course of the examination. THE APPLICATION AGAINST MRS ARCHER 115 The evidence. In making this application for Mrs Archer to be examined, the Bar Association relied on a further affidavit dated 23 December 2004 sworn by Mr Blanch. Included amongst a number of documents exhibited to him when swearing this affidavit was the Separation Agreement. Also exhibited were (a) copies of the five schedules described at [30 - 31] above and (b) copies of extracts from the transcripts of the three examinations of the Respondent that are referred to at [32] above, but with different extracts chosen. In addition, there were copies of the two extracts from the transcript of Mrs Archer's examination on 4 April 2003 that are also mentioned above at [32], together with a further extract from this transcript. 116 Finally, the exhibited material included copies of a number of documents that had been produced by Westpac in response to a summons. These comprised (1) Mrs Archer's income tax returns for each of the five years from 1996 to 2000 inclusive (the last three being listed as enclosures in a letter to her from Rosenfeld Kant, Chartered Accountants, dated 20 December 2000); (2) two personal finance enquiry forms addressed to Westpac by Mrs Archer, dated respectively 10 July 1998 and 29 March 2001; (3) a fax dated 9 April 2001 to an entity called the Mortgage Centre, giving 'Existing Valuation Details' for Mrs Archer, referred to as 'the customer'; and (4) cheque account statements issued by Westpac for an account in Mrs Archer's name, covering the period from 10 January 1996 to 22 April 1996. 117 When this affidavit was tendered, Mr Ireland objected to its final paragraph. We allowed this objection, but admitted the remainder of the affidavit into evidence. 118 The Respondent also sought initially to raise objections. We suggested that he did not appear to have standing to do so. He then stated that he did not after all wish to be heard, but that he reserved such rights as arose from his having argued that he should be heard. 119 In the course of a brief cross-examination by Mr Ireland, Mr Blanch confirmed that the documents listed above at [116] had been produced by Westpac and that he himself had had access to the transcript of the bankruptcy examinations of the Respondent and of Mrs Archer. 120 Submissions on behalf of the Bar Association. Mr Garling submitted that Mr Blanch's affidavit and the exhibited material provided abundant evidence of numerous payments that had been either made by the Respondent to Mrs Archer or made by Mrs Archer to the Respondent or on his behalf. 121 The Respondent, he pointed out, was bound by the Separation Agreement to make regular payments of significant amounts to Mrs Archer. She expected to receive monthly payments of about $7,000. In the period from January 1998 to December 2001, he had in fact paid her nearly $900,000, which was well in excess of what the Agreement required. Her bank account statements between January 2000 and March 2001 showed deposits totalling about $187,000. But her income tax return for 1999-2000 disclosed a taxable income of only $30,242. In the course of an examination in his bankruptcy on 3 June 1997, the Respondent had stated that Mrs Archer had not been in paid employment since December 1995. 122 The inference to be drawn from this evidence, according to Mr Garling, was that during this period at least substantial money dealings occurred between the Respondent and Mrs Archer, some or all of which were referable to the Separation Agreement. 123 Moreover, on 4 April 2003, Mrs Archer indicated, in the course of her examination in the Respondent's bankruptcy, that during such periods since 1988 that he was living with her, his 'habit' was to use cheques in order to make payments to her pursuant to the Separation Agreement. But the only bank account statements that had been produced under other summonses were those produced by Westpac, which related to a period of only three months during 1996. It followed, Mr Garling argued, that Mrs Archer must have had other bank accounts and that these must have generated documents that had not been produced, such as bank statements, cheque books and deposit books. 124 In Mr Garling's submission, the evidence also showed that there were arrangements between the Respondent and Mrs Archer whereby she paid for many of his 'general living expenses'. This emerged from answers given by both of them during examinations in his bankruptcy conducted in February and April 2003 respectively. Mrs Archer referred specifically to making payments for his mobile phone. 125 Mr Garling argued that there was, accordingly, 'overwhelming' evidence that documents relating to these transactions had existed and had been in Mrs Archer's possession. The only issue of doubt, he said, was whether they still existed and were in her possession when she received the summons dated 5 March 2004. This was, as he put it, the 'open question'. 126 The order that the Bar Association sought - that Mrs Archer be examined on oath - was, he said, an appropriate step to take in order to resolve this question. Even if Mrs Archer maintained on oath that she had no documents to produce, and even if the limitations to which her examination would be subject (as to which, see [20] and [112] above) precluded any substantial probing of the reasons why this was the case, the Tribunal should still exercise its discretion in favour of ordering that the examination take place. 127 Submissions on behalf of Mrs Archer. Mr Ireland drew our attention to the schedule of payments made by the Respondent to Mrs Archer between 9 March 2001 and 18 March 2002. There was, he argued, nothing in the evidence tendered by the Bar Association to show that the Respondent made any payments of a continuing nature to Mrs Archer after March 2002. It was relevant in this connection that the Respondent's third and latest bankruptcy commenced on 21 March 2002. 128 Furthermore, there was evidence only of one or more payments made by Mrs Archer on the Respondent's behalf, relating to his mobile phone. The only records of a bank account in Mrs Archer's name were those produced by Westpac, relating to a period in 1996. 129 In these circumstances, Mr Ireland argued, it could not be assumed that any payments from the Respondent to Mrs Archer, or from her to him, had been made since March 2002 in circumstances where a documentary record would be expected to have arisen. There was equally no reason to assume that records of payments made before this time would have survived, and would have been in Mrs Archer's possession at the time when she received the summons. 130 Finally, Mr Ireland submitted that even if we found that there was a 'real issue' as to whether the summons had been complied with, we should exercise our discretion against making an order for Mrs Archer to be examined. Given the history of this matter, she would, he maintained, say 'inevitably' that she had no documents to produce. 131 Our decision. In our opinion, there is indeed a 'real issue' as to whether Mrs Archer has complied with the requirements of the summons, and it is appropriate that she be examined in order to determine whether she has in fact complied with it. 132 We agree with Mr Garling's submission that, having regard to the scale and nature of the financial dealings between the Respondent and Mrs Archer, it must be inferred that (a) a significant quantity of common form documents relating to these dealings - for example, bank statements, cheque books and credit card statements - were generated in the period prior to March 2002; (b) a number of such documents relating to payments made by Mrs Archer to him or on his behalf since March 2002 also came into being; and (c) there is a significant possibility (if not a probability) that some of the documents within these two categories remain within Mrs Archer's possession. These inferences provide in our opinion a proper basis for ruling that there is a 'real issue' as to whether she has complied with the summons. 133 In so ruling, we take particular account of Mr Garling's contention that it is inconceivable that the Westpac bank account, in relation to which Westpac has produced records for a period between January and April 1996, should be the only bank account that Mrs Archer has maintained during the period with which we are concerned. If Mrs Archer has in fact complied with the summons, her failure to produce any records of any bank account whatsoever, or indeed of any credit card account, for the period prior to 4 April 2003 (the date of her examination in the Respondent's bankruptcy) is only explicable if (a) none of the payments on account of the Respondent's living expenses that on her own testimony she made during this period was made by cheque or credit card, or (b) she has destroyed, lost or given to a third party all such records. Her failure to produce any such records for the period between 4 April 2003 and 5 March 2004 (the date of the summons) is only explicable on the basis of one or other of these alternatives or a third alternative, viz, that as from 4 April 2003 she ceased to make any payments on account of living expenses, or on any other account, to the Respondent or on his behalf. We believe that there is a 'real issue' as to whether these explanations represent the truth of the matter. 134 We acknowledge that in exercising our discretion in this matter we must take account of the limitations on the range of questions that may be put to Mrs Archer. But the Tribunal has a statutory duty under s 73(5)(b) of the Tribunal Act to 'ensure that all relevant material is disclosed to [it] so as to enable it to determine all of the relevant facts in issue in any proceedings'. 135 With these factors in mind, we consider that we should accede to this application by the Bar Association. The consequence will be that Mrs Archer will be required to state on oath whether her response to the summons so far constitutes full compliance. THE APPLICATION FOR ACCESS TO DOCUMENTS PRODUCED BY BARRINGTON PARTNERS 136 The third application by the Bar Association was for an order that it be granted access to all documents relating to Adbaston Pty Limited that Barrington Partners, Chartered Accountants, had produced to the Tribunal in response to a summons issued on 24 May 2004. 137 This summons required the production of a very wide range of documents and records relating to the Respondent, Mrs Archer or a company called Adbaston Pty Ltd ('Adbaston'), whether in its own right or as a trustee. The period specified was 'the financial years ending 30 June 1987 to date'. The eleven categories listed included all financial and accounting records (electronic or otherwise); all tax returns and notices of assessment; all records and correspondence with the Australian Tax Office; all records (whether electronic or otherwise) relating to any bank account; fee notes recording services provided by Barrington Partners; and all correspondence (whether electronic or otherwise) between Barrington Partners and any of these parties, or between Barrington Partners and any other person or entity in respect of the affairs of any of these parties. Also required to be produced were all records (whether electronic or otherwise) relating to the winding up of Adbaston; all documents (whether electronic or otherwise) relating to any agreement between the Respondent and Adbaston (including any agreement to lease property to the Respondent or to provide services to him); all credit card statements in respect of any credit card held by the Respondent or Mrs Archer; and a wide range of documents relating to the financial or corporate affairs of Adbaston. 138 On 25 June 2004, Barrington Partners produced various documents to the Tribunal in response to the summons. 139 In our judgment of 13 October 2004 to which we have already referred (Council of the New South Wales Bar Association v Archer (No 3) [2004] NSWADT 232), we dismissed an application by the Respondent to set aside this summons. The Respondent had argued that the summons was objectionable on grounds of oppressiveness and irrelevance, in so far as it required the production of documents and records relating only to the financial affairs of Mrs Archer or of Adbaston. 140 Our decision to dismiss this application (see the judgment at [97 - 102]) was based on four considerations: (1) that any documents bearing upon dealings between Barrington Partners and the Respondent were relevant to these proceedings; (2) that it would be difficult to reduce the scope of the summons by deleting specified passages, so as to exclude documents relating only to Mrs Archer and/or Adbaston; (3) that the Respondent had claimed in his submission that Barrington Partners had no documents within these categories; and (4) that Barrington Partners had already answered the summons anyway. 141 We noted, however, at [100] that but for these considerations we might have been inclined to grant the Respondent's application. This was because (a) we had held that Mrs Archer's independent financial situation was not a relevant matter in these proceedings and (b) the relevance of Adbaston to the proceedings was still not clear to us. 142 As part of our decision dismissing the Respondent's application, we ordered as follows:- The Respondent to have first access to the documents produced by Barrington Partners, in order to raise any objections that he may have to the granting of access to specific documents to the Applicant…. The Applicant may then have access to the produced documents, except any document in respect of which the Respondent has objected…. Any objection to access to a document is to be listed for hearing if necessary. 143 The Respondent exercised his right of first access. He objected to the Bar Association having access to certain documents, which were then placed in a separate envelope in the Tribunal's file for these proceedings. The Bar Association, having inspected the remaining documents produced by Barrington Partners, made the present application for access to all documents contained in the envelope that related to Adbaston. 144 The affidavit of Mr Blanch dated 23 December 2004, to which we have already referred, contained material relating to Adbaston and its dealings with the Respondent. The Respondents argued that this material should not be admitted into evidence, on the same grounds as he put forward in the course of opposing the Bar Association's application for him to be examined (see [38 - 51] above). We rejected this argument, for reasons that we have set out at [68 - 81] above. 145 This material showed that between 1989 and 1997 Adbaston provided accommodation in Nigel Bowen Chambers and other services to the Respondent for the purposes of his practice as a barrister. For some at least of this period, its beneficial owners were Mrs Archer (who was also a director) and the two children of the Respondent and Mrs Archer. It was wound up by court order in August 1996 and dissolved in December 1997. 146 Having regard to this evidence, which had not been put before us when we dealt with the Respondent's application to set aside the summons, we consider that the Bar Association should be entitled now to have access to any of the disputed documents produced by Barrington Partners that bear upon either (a) Adbaston's dealings with the Respondent or (b) any of its dealings with Mrs Archer and/or any of his two children that involved or might have involved any transfer of funds or other property to any of them. Documents relating to any distribution of dividends to them in their capacity as shareholders, for example, would fall within the latter category. 147 On the other hand, the Bar Association should not have access to documents that bear upon Adbaston's dealings with Mrs Archer in any other capacity (for example, as director), or upon other dealings with third parties, or otherwise upon its internal affairs. 148 These criteria are, we believe, consistent with our earlier rulings on the summonses that have been issued in these proceedings. In broad terms, these rulings have been based on the principle that evidence regarding (a) transfers of money or other property between the Respondent and Mrs Archer or (b) payments made by the Respondent for the benefit of any other member of his family since 1988 is potentially relevant in these proceedings. On the other hand, Mrs Archer's independent financial situation and any part that she played in business activities in her own right are not relevant matters. 149 With the consent of both parties, we have examined the documents that the Respondent asked to be placed in a separate envelope. 150 Our decision is that the Bar Association should have access to a file copy of a letter dated 25 January 1990 from Barrington Partners to Mrs Archer, and to copies of three documents relating to Adbaston that were annexed to this letter. These comprise an annual return for 1990 and the undated minutes of a directors' meeting and an annual general meeting (both apparently held some time after 30 June 1990). In different ways, these bear upon Ms Archer's role as a shareholder in Adbaston and on the distribution of dividends to her. 151 We do not grant access to any of the other documents contained in the envelope, as none of them satisfies the criteria that we have set out. OUR ORDERS ON THESE APPLICATIONS 152 We make the orders set out in the ensuing five paragraphs. 153 The Respondent is to be examined as to his compliance with a summons to produce documents issued on 10 November 2003, as varied by an order of the Tribunal made on 25 February 2004. 154 Sarah Anne Archer is to be examined as to her compliance with a summons to produce documents issued on 18 March 2004, as varied by an order of the Tribunal made on 13 October 2004. 155 With regard to the documents produced by Barrington Partners in response to a summons issued on 24 May 2004, the Bar Association is granted access to a file copy of a letter dated 25 January 1990 from Barrington Partners to Mrs Archer and to copies of three documents relating to Adbaston that were annexed to this letter, but not to any other documents in relation to which the Respondent has objected to access being granted. This grant of access includes permission to uplift for not more than 48 hours for the purpose of copying. 156 The costs of these three applications are reserved. 157 The matter is set down for further directions at 9.30 a.m. on 10 October 2005.

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