Curtin v Vice-Chancellor, University of New South Wales - [2005] NSWADT 104

CITATION: Curtin v Vice-Chancellor, University of New South Wales [2005] NSWADT 104

DIVISION: General Division

PARTIES: APPLICANT
Peter John Curtin
RESPONDENT
Vice-Chancellor, University of New South Wales

FILE NUMBER: 043375

HEARING DATES: On the papers

SUBMISSIONS CLOSED: 03/02/2005

DATE OF DECISION:
05/10/2005

BEFORE: O'Connor K - DCJ (President)

APPLICATION: access to documents - legal professional privilege - Freedom of Information Act - access to documents - legal professional privilege

MATTER FOR DECISION: Preliminary matter

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Evidence Act 1995
Freedom of Information Act 1989
Protected Disclosures Act 1994

CASES CITED: Esso Australia Resources Ltd v Commissioner of Taxation (1999) 201 CLR 49
Law Society of New South Wales v General Manager, Workcover Authority of New South Wales [2004] NSWADTAP 40
Southern Equities Corporation (in liquidation) v Arthur Andersen & Co (No 6) [2001] SASC 398

REPRESENTATION: APPLICANT
In person
RESPONDENT
A Mullen, solicitor

ORDERS: 1. Respondent’s determination that Documents 4, 5 and 6 exempt on the basis of legal professional privilege affirmed; 2. Application to be relisted for further planning meeting.

REASONS FOR DECISION
1 This decision deals with one aspect of an application for access to documents made under the Freedom of Information Act 1989 (FOI Act).

2 The applicant is a former staff member of the University of New South Wales. (The applicant’s name has not been anonymised in these reasons, at his request.)

3 He worked for many years in a business entity of the University called ‘The Educational Testing Centre’ (ETC) ultimately holding a senior position (Position Title: Manager Planning and Budget & Services Manager). The ETC designed examinations and schools competitions for use by clients such as State Education Departments and tertiary institutions. The ETC’s operations were the subject of a management review in 2002 and 2003 by the University, leading to its restructure. The applicant actively questioned the probity and soundness of the decision-making process leading to the restructure, and in particular disputed the conduct of the General Manager of the ETC, Dr Alan Bowen-James. The ETC is a division of a company, NewSouth Global (NSG), the commercial arm of the University and a controlled entity of the University. The restructure of the ETC proceeded, and, after some consideration, the applicant decided to accept a termination package.

4 He made some complaints in a manner and form intended to obtain the benefit of the protected disclosures legislation (the Protected Disclosures Act 1994). In pressing his claims in relation to the restructure, and his concerns over what he saw as corrupt conduct in the decision-making process, he regularly dealt with the Equity and Diversity Unit of the administration of the University. This Unit deals with issues to do with the treatment of staff and employees of the University.

5 He applied on 31 August 2004 to the University for ‘the contents of the Equity and Diversity file on myself’, and indicated on the relevant form that the access request was for ‘personal’ documents as distinct from ‘non-personal documents’.

6…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Curtin v Vice-Chancellor, University of New South Wales

Details

AGLC: Curtin v Vice-Chancellor, University of New South Wales [2005] NSWADT 104
Case: [2005] NSWADT 104
Decision Date: 05/10/2005

CaseChat Overview and Summary

Curtin brought proceedings in the Supreme Court of New South Wales against the Vice-Chancellor of the University of New South Wales, challenging the respondent's decision to withhold certain documents on the basis of legal professional privilege. Curtin sought an order for the disclosure of Documents 4, 5 and 6, which were part of a larger set of documents relevant to an internal university investigation into Curtin's conduct. The case centred on whether the withheld documents were indeed protected by legal professional privilege and whether the privilege was properly claimed by the university.

The central legal issue before the court was whether the documents in question were privileged communications between Curtin and his legal counsel. The court had to determine whether the documents were created for the dominant purpose of giving or receiving legal advice, and if the privilege was properly claimed by the university as the client. The court also needed to consider whether the documents contained any information that was not privileged, which could potentially be disclosed to Curtin.

In considering the matter, the court examined the nature and content of the documents, as well as the circumstances in which they were created and used. The court found that the documents were indeed communications between Curtin and his legal counsel, created for the dominant purpose of obtaining legal advice. The court was satisfied that the legal professional privilege was properly claimed by the university and that there were no overriding public interest considerations that would require disclosure of the documents. Consequently, the court affirmed the respondent's determination that Documents 4, 5 and 6 were exempt from disclosure on the basis of legal professional privilege. The court ordered that the application be relisted for further planning meeting to allow the parties to address the remaining issues in the case.

Orders

Orders of the court

1. Respondent’s determination that Documents 4, 5 and 6 exempt on the basis of legal professional privilege affirmed; 2. Application to be relisted for further planning meeting.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Curtin v Vice-Chancellor, University of New South Wales [2005] NSWADT 104
DIVISION:	General Division
PARTIES:	APPLICANT Peter John Curtin RESPONDENT Vice-Chancellor, University of New South Wales
FILE NUMBER:	043375
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	03/02/2005
DATE OF DECISION:	05/10/2005
BEFORE:	O'Connor K - DCJ (President)
APPLICATION:	access to documents - legal professional privilege - Freedom of Information Act - access to documents - legal professional privilege
MATTER FOR DECISION:	Preliminary matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Evidence Act 1995 Freedom of Information Act 1989 Protected Disclosures Act 1994
CASES CITED:	Esso Australia Resources Ltd v Commissioner of Taxation (1999) 201 CLR 49 Law Society of New South Wales v General Manager, Workcover Authority of New South Wales [2004] NSWADTAP 40 Southern Equities Corporation (in liquidation) v Arthur Andersen & Co (No 6) [2001] SASC 398
REPRESENTATION:	APPLICANT In person RESPONDENT A Mullen, solicitor
ORDERS:	1. Respondent’s determination that Documents 4, 5 and 6 exempt on the basis of legal professional privilege affirmed; 2. Application to be relisted for further planning meeting.