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

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

Section 171R of the Legal Profession Act 1987 confers an immunity on specified persons from compellability to produce documents or give evidence in relation to matters arising from their functions under the relevant part of the Act; this immunity is not subject to waiver by conduct short of actual voluntary production of the evidence, nor is it defeated by considerations of procedural fairness, which instead require other remedies. The immunity can be applied to discrete parts of documents, permitting redaction.

Parties
Claimant/appellant: Council of the New South Wales Bar Association; Opponent/respondent: Stephen John Archer
Jurisdiction
Australia
Judgment Date
18 July 2008
Procedural Posture
Appeal / Judgment on Application for Leave to Appeal and Substantive Appeal
Outcome
Appeal allowed
Legal Topics
Privilege, Waiver of Privilege, Procedural Fairness, Statutory Immunity, Disciplinary Proceedings, Production of Documents
Administrative Law Evidence Law Legal Profession and Discipline Privilege Waiver of Privilege Procedural Fairness Statutory Immunity Disciplinary Proceedings +1 more

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Parties

Council of the New South Wales Bar Association

Claimant/appellant

Stephen John Archer

Opponent/respondent

Procedural Posture

Appeal / Judgment on Application for Leave to Appeal and Substantive Appeal

Legal Issues

  1. 1 Whether s 171R of the Legal Profession Act 1987 provides an absolute protection from compellability to produce documents in disciplinary proceedings or is subject to exceptions such as procedural fairness or waiver
  2. 2 Whether s 171R protection applies to parts of documents allowing redaction
  3. 3 Whether the conduct of the protected party amounts to waiver of the protection under s 171R

Ratio Decidendi

Section 171R of the Legal Profession Act 1987 confers an immunity on specified persons from compellability to produce documents or give evidence in relation to matters arising from their functions under the relevant part of the Act; this immunity is not subject to waiver by conduct short of actual voluntary production of the evidence, nor is it defeated by considerations of procedural fairness, which instead require other remedies. The immunity can be applied to discrete parts of documents, permitting redaction.

Court Disposition

Appeal allowed

Orders

  • Leave to appeal granted
  • Notice of Appeal to be filed within fourteen days