CITATION: Howell v Macquarie University [2008] NSWCA 26 This decision has been amended. Please see the end of the judgment for a list of the amendments.
FILE NUMBER(S): 40158/07 40731/07
HEARING DATE(S): 30 January 2008
JUDGMENT DATE: 12 March 2008
PARTIES: Sally Clare Howell - Appellant Macquarie University - Respondent
LOWER COURT MEDIUM NEUTRAL CITATION: Howell v Macquarie University (GD) [2007] NSWADTAP 10; Howell v Macquarie University (No 2) (GD) [2007] NSWADTAP 51
COUNSEL: P Howell, solicitor - Appellant M Allars - Respondent
SOLICITORS: Philip Howell - Appellant Foulsham & Geddes - Respondent
CATCHWORDS: ADMINISTRATIVE LAW – Freedom of information – access to documents – exempt documents – whether documents exempt from production by reason of legal professional privilege – sufficiency of proof of prima facie privilege – whether non-disclosure of exempt matter constitutes breach of procedural fairness – s 55 Freedom of Information Act 1989 –whether documents produced for improper purpose – whether sufficient evidence to raise prima facie case of improper purpose – whether Administrative Decisions Tribunal Appeal Panel erroneously made a finding that there was no evidence of improper purpose – whether Appeal Panel erred in law in declining to remit matter to Tribunal in circumstances where Tribunal had made an error of law – sufficiency of reasons of Administrative Decisions Tribunal and Appeal Panel PROCEDURE – Supreme Court procedure – whether leave required to appeal from decision of Administrative Decisions Tribunal Appeal Panel – whether decision of Appeal Panel was an interlocutory or final decision – s 119(1A) Administrative Decisions Tribunal Act 1997 STATUTES – Interpretation – whether legal professional privilege exemption in legislation should be construed narrowly – Sch 1, cl 10(1) Freedom of Information Act 1989 – meaning of “from production in legal proceedings” – whether exemption should be upheld only in circumstances where claim of privilege would be upheld by a court in legal proceedings – application of “general policy of disclosure” enshrined in Act to construction of exemptions contained in Act – distinction between procedural and evidentiary rules within which court determines whether matter has characteristics needed to make it privileged from production and the characteristics required of privileged documents STATUTES – Interpretation – construction of Acts forming scheme of legislation – proper to have regard to each Act for the purpose of construing expressions used in any one of them – s 73 Administrative Decisions Tribunal Act 1997, Sch 1, cl 10(1) Freedom of Information Act 1989 EVIDENCE – witnesses – whether effect of decision in Jones v Dunkel is to compel the drawing of inferences when a witness is not called
[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.
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This case concerned an appeal to the Supreme Court of New South Wales from a decision of the Administrative Decisions Tribunal Appeal Panel. The appellant, Mrs Howell, sought access to documents held by Macquarie University under the *Freedom of Information Act 1989* (NSW). The University claimed that certain documents were exempt from disclosure due to legal professional privilege, as provided for by Schedule 1, clause 10(1) of the Act. Mrs Howell contended that the Tribunal and Appeal Panel had erred in law by not applying the same evidentiary and procedural standards as a court when determining claims of legal professional privilege.
The primary legal issue before the Supreme Court was the correct interpretation of clause 10(1) of Schedule 1 to the *Freedom of Information Act 1989* (NSW), specifically the phrase "from production in legal proceedings." Mrs Howell argued that this phrase necessitated that a claim for legal professional privilege be proven to the same standard and through the same procedures as would be required in court proceedings. This included requirements such as evidence on oath, cross-examination, and inspection of documents. The Court was also asked to consider whether the Appeal Panel had erred in law by failing to remit the matter to the Tribunal when it found an error of law, and whether the Appeal Panel's decision was final or interlocutory.
The Court, comprising Spigelman CJ, Campbell JA, and Bell JA, reasoned that the phrase "from production in legal proceedings" referred to the characteristics of the matter within a document that would attract legal professional privilege at common law, rather than the procedural and evidentiary rules by which such privilege is established in court. The Court held that the *Administrative Decisions Tribunal Act 1997* (NSW), particularly section 73, expressly frees the Tribunal from the strict confines of court procedure and evidence. Therefore, the task of an agency officer, the Tribunal, and the Appeal Panel is to determine, based on the available information, whether the matter in a document possesses the characteristics of legal professional privilege, irrespective of the procedural mechanisms used to prove it. The Court found that the legislative scheme, comprising both the *Freedom of Information Act* and the *Administrative Decisions Tribunal Act*, indicated that clause 10 should be interpreted in a manner consistent with the Tribunal's procedural flexibility.
The appeal was dismissed. The appellant was ordered to pay the respondent's costs for both matters before the Court.
Orders
Orders of the court
1. Appeal dismissed in matter 40731/07 2. Appellant to pay respondent's costs of both matter 40158 of 2007 and 40731 of 2007, including the costs of the Amended Notice of Motion dated 18 September 2007 in matter 40158 of 2007.
Background
Background to the litigation
Section 117(1) and (3) have the effect of extending that obligation to the Appeal Panel, whether the Appeal Panel is hearing an appeal restricted to questions of law or an appeal that extends to a review of the merits.The Factual Background to the Disputed Documents The Appeal Panel set out the factual background to the submissions of the Appellant:“8As at November 2004 she was the deputy principal of the School for Children with Special Learning Needs in the Macquarie University Special Education Centre (MUSEC). On or about 24 November 2004 the mother of a nine-year old boy who attended the school complained of mistreatment by three staff members at MUSEC, one of them being Mrs Howell. Mrs Howell was notified of the complaint. After considering advice from the University Solicitor, Ms Jennifer O’Brien, the University appointed an external investigator (Mr Geoff Kelly of Lee Kelly & Associates) to undertake an investigation.9From the outset Mrs Howell indicated that she would make a written statement in relation to the complaint but would not submit to an oral interview. In that regard, she had taken advice from her husband, Mr Philip Howell, a solicitor.10On 24 December 2004, in accordance with s 25C(1)(a) of the Ombudsman Act 1974 the University reported the complaint to the Ombudsman. The Ombudsman decided on 3 February 2005, as permitted by s 25E, to monitor the investigation as it raised a ‘reportable allegation’ and it was ‘in the public interest’ to do so.11Mrs Howell continued to object to submitting to a face-to-face interview. She had conveyed her opinion to the other members of staff complained against. The opinion of the investigator and senior officers of the University, including Ms O‘Brien, was that staff should make themselves available for oral interview if requested by the investigator. Conflict over this issue, and other concerns that the staff members had about the investigation, gave rise to a meeting on 17 February 2005 attended by the Head of Department (Dr A Rice), the head of the School (Professor Weldhall), the Director of Human Resources (Mr Tim Sprague), the University Solicitor (Ms O’Brien), Mrs Howell and the other two staff members. The full minutes of the meeting were released to Mrs Howell and are in evidence.12Early in March 2005 Mrs Howell formally complained to the Ombudsman over the way the University was conducting the investigation; and requested the Ombudsman to take it over. The Ombudsman declined to take over the investigation, by letter received 16 March 2005.13On that day, the University Solicitor, Ms O’Brien briefed Professor Elizabeth More, Vice-Chancellor (Administration), over her concerns in relation to what she saw as Mrs Howell’s non-co-operation with the investigation. (This is the document that is described as ‘Document 1’ in the Tribunal’s reasons, though it is important to note that only paragraph 1 of this document was considered by the University to fall within the scope of the relevant request.)14Accepting advice received from Ms O’Brien, Prof More wrote to Dr Rice, asking him to issue a disciplinary direction to Mrs Howell, and providing a text. Dr Rice did so by letter dated 30 March 2005. We will not set out the whole of this letter. The FOI requests were triggered by the second and third paragraphs:‘Information has been referred to me to the effect that you have communicated to a former MUSEC colleague your views about her duties in relation to the Ombudsman’s delegated investigation of the complaint by [the mother of the boy]. In particular, she has stated, in effect, that you advised her that she did not have to participate in a face to face interview with the University appointed investigator if she did not wish to do so and that she could proceed by way of written submissions.If this is the case, it amounts to a breach of the previous request by the University through the University Solicitor and the Director of Human Resources that you not speak to others who may have information concerning the matters complained about.’This text was followed by the giving of a ‘clear direction that you not speak to any other person who may have information relevant to the investigation of the complaint’. The direction continued:‘For the avoidance of doubt, you are directed not to discuss the factual matters giving rise to the complaint or the manner in which the University has determined that the investigation should be undertaken with any such person except with the express consent of the University.’The letter continued, advising that disregard of the direction would be treated as falling within the definition of employee misconduct found in the enterprise agreement between staff and the University and risk formal disciplinary action.15On 27 April 2005 Mrs Howell lodged a formal grievance under the enterprise agreement. The grievance referred to her concerns that this direction was unfair and improper, in particular, the absence of particulars as to her alleged breach of the previous requests, including the precise details of those previous requests. She objected to the suggestion, found in her view in the direction, and in subsequent material, that she may have engaged in action that might have, to use her word, ‘contaminated’ the evidence. Her position is that her view about what was appropriate was widely known and that, in any event, at the meeting of 17 February, Mrs O’Brien, in particular, had accepted that a staff member could not be compelled to attend a face-to-face interview. The grievance included a number of specific complaints relating to the role and conduct of Ms O’Brien.16In July 2005 the University received Mr Kelly’s report. The report found that the allegation was not established against any of the three staff members. The report was transmitted to the Ombudsman. By letter dated 18 August 2005, after considering the investigator’s report, the Ombudsman accepted the investigator’s conclusion that in the instance of one allegation relating to the appellant the event alleged did not occur, and in the instance of the other allegation the event alleged did occur but it was not ‘reportable conduct’ as the action was reasonable.17In all these matters, Mrs Howell has been assisted and advised by Mr Howell. He has acted on her behalf in dealing with the University, and in particular with Mrs O’Brien, on many of the matters that have arisen. He prepared the written submissions filed by Mrs Howell before both the Tribunal at first instance and before the Appeal Panel. In one of those submissions he describes an increasing level of tension and conflict from January 2005 onwards between Mrs Howell and the University.”The Legal Professional Privilege Exemption
Evidence
Evidence Before The Court
The Appeal Panel made its decision on the basis (that has not been questioned before us) that the relevant principles to apply for the existence of the Clause 10 exemption are those concerning the common law of legal professional privilege, not those concerning the availability of client legal privilege under the Evidence Act 1995. The Appeal Panel quoted, at [27] the statement of Gleeson CJ, Gaudron, Gummow and Hayne JJ in TheDaniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49; (2002) 213 CLR 543 at [9], 522; (2002) 77 ALJR 40 at [9]:“It is now settled that legal professional privilege is a rule of substantive law which may be availed of by a person to resist the giving of information or the production of documents which would reveal communications between a client and his or her lawyer made for the dominant purpose of giving or obtaining legal advice or the provision of legal services, including representation in legal proceedings.” The Appeal Panel noted that the relevant test since 1999 had been whether the communication or document was made for the “dominant purpose” rather than the “sole purpose” of rendering legal advice or the provision of legal services: Esso Australia Resources Ltd v Federal Commissioner of Taxation [1999] HCA 67; (1999) 201 CLR 49 at [35]-[61], 64-73.Procedure for the Tribunal Determining Clause 10 ExemptionThe Appellant’s Argument Mr Howell argued the appeal in this Court for his wife. He submits that the words “from production in legal proceedings” in Clause 10(1) of Schedule 1 to the FOI Act must be given some meaning: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at [71], 382. He submits that Clause 10(1) would have been effective without inclusion of the words “from production in legal proceedings”. The added meaning that he says emerges from the words “from production in legal proceedings” is that the exemption should be upheld only in circumstances where a claim of legal professional privilege would be upheld by a court in legal proceedings. That brings with it, he submits, a requirement to have regard to (a) the standard of evidence required by courts; and (b) the procedures courts follow when claims for legal professional privilege are determined. He submits that allowing less than this degree of stringency would widen the scope within which the privilege could be claimed, which would be contrary to the object of, and “general policy of disclosure in” the FOI Act: section 5 FOI Act; General Manager, WorkCover Authority of NSW v Law Society of New South Wales [2006] NSWCA 84; (2006) 65 NSWLR 502 at [147], 533. He submits that the final relief that had been sought in the Tribunal was an order giving access to the documents, and thus a decision about whether they were exempt on the ground of legal professional privilege was a final decision, not an interlocutory decision, and a court would not receive hearsay evidence for the purpose of making a final decision. He submits that the procedures required by the Court for proof of the existence of legal professional privilege include an assertion of privilege on oath, cross-examination of the deponent, inspection of the documents, and the leading of other evidence by those who oppose the claim. He submits that when the Tribunal has evaluated the University’s claim of legal professional privilege without requiring the claim to have been established in the Tribunal in accordance with that standard of evidence and procedure, and the Appeal Panel has upheld the Tribunal’s decision, the Appeal Panel has misconstrued Clause 10, in a way that involves an error of law which this Court should correct.
Decision
Reasons for decision
SPIGELMAN CJ
The appeal to the Tribunal was conducted in accordance with section 63 Administrative Decisions Tribunal Act 1997 (“ADT Act”):“(1)In determining an application for a review of a reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following: (a) any relevant factual material,(b) any applicable written or unwritten law.(2)For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant enactment on the administrator who made the decision.” At the time of the Tribunal’s decision, the prevailing view in the Tribunal was that the Tribunal did not have power to release an exempt document in the exercise of its discretion. The Tribunal’s decision in the present case made express reference to the Tribunal’s lack of power to exercise any such residual discretion. After the decision of the Tribunal had been given, and while the Appeal Panel had its decision reserved, Nicholas J held in University of New South Wales v McGuirk [2006] NSWSC 1362 that the Tribunal had power to exercise the residual discretion. In its first-stage reasons for judgment the Appeal Panel referred to these matters, and continued:“In these circumstances, as a matter of fairness to the applicant, we should make an order which allows the issue of the residual discretion to be agitated by Mrs Howell in relation to the documents exempt by virtue of legal professional privilege. We would encourage the agency to consider whether it is prepared to release any of the exempt documents (ie documents 2-6 and 8-14) in the exercise of the residual discretion during the 21 day period allowed for in the following orders.” In other words, the further directions that the Appeal Panel contemplated included the possibility that it might itself exercise the residual discretion. The University notified Mr Howell of the results of its reconsideration by letter dated 21 March 2007. It decided to release document 1 in a version from which some words claimed to be confidential had been deleted. It also decided to release documents 13 and 15. However it maintained its claim that documents 2-6 inclusive, 8-12 inclusive and 14 were exempt from disclosure on the ground of legal professional privilege, and declined to release any of those documents in the exercise of its discretion. The second stage of the Appeal Panel’s decision was given on 27 September 2007: Howell v Macquarie University (No 2) (GD) [2007] NSWADTAP 51. That decision dealt with two matters only – the correctness of the University’s deletion of allegedly confidential material from document 1, and the correctness of the University’s decision to decline to release documents 2-6, 8-12, and 14 in the exercise of its discretion. The Appeal Panel was not persuaded that the claim for confidentiality was made out. Thus document 1 has been released in its entirety. The Appeal Panel was not persuaded that it should alter the University’s decision concerning the exercise of the overriding discretion in relation to documents 2-6, 8-12 and 14.
Ratio Decidendi
Legal Principle Established
Established by:
SPIGELMAN CJ
“Matter” has the attribute that it “would be privileged from production in legal proceedings on the ground of legal professional privilege” if it has the characteristics identified in the passage quoted at para [41] above from The Daniels Corporation, and is not within one of the exceptions that the common law recognised to the privilege, such as concerning communications made to facilitate the perpetration of a crime or fraud. In my view there is a distinction between the characteristics that matter contained in a document must have before it would be privileged from production in legal proceedings on the ground of legal professional privilege, and the means by which it is established that the matter has those characteristics. In my view, the procedural and evidentiary rules that set the frame within which a court determines whether matter has the characteristics needed to make it privileged from production in legal proceedings on the ground of legal professional privilege are not part of those characteristics. When an application is made to an agency for access to a document under the FOI Act, the application is first dealt with, pursuant to section 41, by an officer of the agency. In all, or nearly all, cases that officer will have no ability to receive evidence given on oath, there will be no occasion for cross-examination of anyone, and the types of facilities that are present in court proceedings for inspection of documents and the leading of evidence by those who oppose the claim, are absent. It is highly unlikely that Parliament would have intended that Clause 10 should bear a meaning that would make it in practice unable to be applied by a significant class of people who the statute itself, in section 41, requires to undertake the task of applying it. Rather, the task of the officer of the agency is to make up his or her own mind, on the basis of such information as is available to him or her, about whether the matter contained in a document has characteristics that would make it privileged from production in legal proceedings on the ground of legal professional privilege. Clause 10 does not change its meaning depending upon whether it is being applied by an officer of the agency, or by the Tribunal. The task of the Tribunal, in reviewing a claim of legal professional privilege made by an agency, is to make up its own mind, on the basis of such information as it has available to it, about whether the matter contained in a document has the characteristics that would make it privileged from production in legal proceedings on the ground of legal professional privilege. Further support for this view is obtained from the ADT Act. Section 73 specifically frees the Tribunal from the confines of evidence and procedure within which a court makes decisions about whether a document is privileged from production on the ground of legal professional privilege. When a number of Acts form a scheme of legislation it is proper to have regard to each of them for the purpose of construing expressions used in any one of them: Sweeney v Fitzhardinge [1906] HCA 73; (1906) 4 CLR 716 at 726; R v Mailes [2001] NSWCCA 155; (2001) 53 NSWLR 251 at [108], 272; Commissioner of Stamp Duties v Permanent Trustee Co Ltd (1987) 9 NSWLR 719 at 723-4. When the ADT Act and the FOI Act are clearly intended to operate together, as part of the one legislative scheme for enforcement of rights, it is unlikely that Parliament intended that Clause 10 should be interpreted in a fashion that is expressly contradicted by section 73 ADT Act.
