Set aside by Appeal:
Set aside in part by Appeal on 1 March 2007 and 27 September 2007: Howell v Macquarie University (GD) [2007] NSWADTAP 10; Howell v Macquarie University (No 2) (GD) [2007] NSWADTAP 51
CITATION: Howell v Macquarie University [2006] NSWADT 207 DIVISION: General Division PARTIES: APPLICANT
Sally Clare Howell
RESPONDENT
Macquarie UniversityFILE NUMBER: 053277 and 053320 HEARING DATES: 6-7/12/2005 and 20/12/2005 SUBMISSIONS CLOSED: 03/10/2006
DATE OF DECISION:
07/07/2006BEFORE: Wilson R - Judicial Member CATCHWORDS: access to documents - internal working documents - access to documents - legal professional privilege - Freedom of Information Act - access to documents - internal working documents - Freedom of Information Act - access to documents - legal professional privilege MATTER FOR DECISION: Principal matter LEGISLATION CITED: Freedom of Information Act 1989 CASES CITED: Harris v ABC (1983) 50 ALR 551
N v Director-General, Attorney-General’s Department (No. 4) [2003] NSWADT 122
Nederlandse Reassurantie Groep Holding NV v Bacon & Woodrow [1995] 1 All ER 976
Re Howard v Treasurer of the Commonwealth of Australia (1985) 7 ALD 626
Trade Practices Commissioner v Sterling (1979) 36 FLR 244REPRESENTATION: APPLICANT
RESPONDENT
K Sant, barrister
M Allars, barristerORDERS: 1.The decisions under review are affirmed with respect to the documents considered in these reasons for decision; and; 2.Document #1 in the 053277 Schedule of Exempt Documents is remitted to the respondent for further consideration in accordance with paragraph 16 of these reasons
1 The Applicant has brought both these proceedings pursuant to the provisions of the Freedom of Information Act 1989 seeking to review determinations made by the Respondent refusing access to documents upon applications duly made under that Act. The proceedings are inter-twined in a rather complex way by reason of the way in which the Respondent dealt with the FOI applications and the reactions of the Applicant in an endeavour to address perceived problems and possible solutions. No criticism of the parties is meant by this; the Respondent is under a duty to apply the legislation correctly and the stance adopted may not be readily understood by an Applicant in proceedings like these where an Applicant, not knowing what exempt documents contain, cannot easily ascertain why the applications have been dealt with in a particular way. The Applicant certainly had a difficult reconciliation process on hand following the FOI releases of particular documents (see statement by Brian Spencer, exhibit C2, paragraph10). Despite the considerable assistance from the parties the complexities of these two matters remained significant.
2 At all material times the Applicant was employed by the Respondent as a lecturer in special education, her duties being performed within a school, established by the Respondent, for children with special learning needs. In late 2004 an incident occurred at the school involving one of the children who was attending there. Following this incident the child’s parents lodged a complaint with the Applicant, who referred it to her superiors. The child’s parents contemplated bringing legal proceedings against the Respondent by…
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- Case
- [2006] NSWADT 207
- Decision Date
CaseChat Overview and Summary
The court found that the documents were indeed protected by legal professional privilege, as they were internal working documents prepared for the purpose of obtaining legal advice. The court noted that the privilege applied even though the documents had been shared internally within the university. However, the court also recognised that the public interest in transparency and accountability could, in some circumstances, override legal professional privilege. The court conducted a detailed analysis of the documents in question and concluded that, in this case, the public interest did not outweigh the privilege. The court found that the documents contained sensitive legal advice and that disclosure could potentially harm the university's ability to receive frank and candid legal advice in the future.
The court affirmed the decisions under review, upholding the respondent's refusal to release the documents. However, the court identified one document that required further consideration. The court remitted this document back to the respondent for reassessment in light of the public interest factors. The court emphasised that its decision was specific to the documents considered in these reasons and did not preclude the possibility of disclosure in other cases where the public interest might be more compelling.
The orders of the court were that the decisions under review were affirmed with respect to the documents considered in these reasons. However, document #1 in the 053277 Schedule of Exempt Documents was remitted to the respondent for further consideration in accordance with the court's reasoning.
Orders
Orders of the court
1.The decisions under review are affirmed with respect to the documents considered in these reasons for decision; and; 2.Document #1 in the 053277 Schedule of Exempt Documents is remitted to the respondent for further consideration in accordance with paragraph 16 of these reasons
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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