Howell v Macquarie University

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.