Howell v O'Brien

[2009] NSWSC 538

CITATION:	Howell v O'Brien [2009] NSWSC 538
HEARING DATE(S):	25/05/09; 26/05/09;27/05/09
JUDGMENT DATE :	15 June 2009
JUDGMENT OF:	Patten AJ at 1
DECISION:	See paragraph 95
LEGISLATION CITED:	Uniform Civil Procedure Rules; Macquarie University Act 1989 Freedom of Information Act 1989; Administrative Decisions Tribunal Act 1997 Superannuation (Resolution of Complaints) Act (Cwth) 1993; Interpretation Act 1987; Defamation Act 2005; Ombudsman Act 1974
CASES CITED:	AWB Ltd v Cole (No. 5) [2006] 155 FCR 30; Blair v Curran ([1939] 62 CLR 464 at 53; Rippon v Chilcotin Pty Ltd (2001) 53 NSWLR 198; State Bank of NSW v Stenhouse Ltd (1997) Aust Torts Reports 81-423 (64,077 at 64,089); Attorney General for the Commonwealth v Breckler (1999) 197 CLR 83; General Steel Industries Inc v Commissioner of Railways (1964 112 CLR 125 at 129; Jago v District Court of NSW (1989) 168 CLR 23; Kaplan v Go Daddy Group Inc [2006] NSWSC 250
TEXTS CITED:	D C Pearce and R S Geddes, Statutory Interpretation in Australia 6th Edition: Spencer Bowen Turner and Handley, The Doctrine of Res Judicata 3rd Edition;
PARTIES:	Sally Clare Howell - Plaintiff Jennifer Jane O'Brien - Defendant
FILE NUMBER(S):	SC 020014 of 2009
COUNSEL:	Mr P Howell - Plaintiff Mr B McClintock with Mr A Dawson - Defendant
SOLICITORS:	P Howell - Plaintiff Ebsworth Lawyers - Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
DEFAMATION LIST

Patten AJ

15 June 2009

No: 020014 of 2009

Sally Clare Howell
v
Jennifer Jane O’Brien

JUDGMENT

INTRODUCTION:

1 Before the Court are 2 motions by the Defendant, the first (the summary dismissal motion) seeks an order that the proceedings be summarily dismissed pursuant to Rule 13.4 of the Uniform Civil Procedure Rules (UCPR), alternatively that the Amended Statement of Claim be struck out pursuant to rule 14.28 UCPR, alternatively that the proceedings be permanently stayed.

2 The second motion (the subpoena motion) seeks an order pursuant to Rule 33.4 UCPR that the subpoena issued to Macquarie University on 17 February 2009 (the University Subpoena) at the request of the Plaintiff be set aside. The subpoena sought production of the following documents:

“1. The originals of the following documents which were sought by the plaintiff under Freedom of Information Act request 05/90 and which were the subject of proceedings 053320 between the plaintiff and the university in the Administrative Decisions Tribunal, namely:


Description Date No. of docs in Schedule in
ADT proceedings 053320

1.1 Email to Jennifer O’Brien - 28.02.05 – Document 8
1.2 Email from Jennifer O’Brien
to Tim Sprague -02/03/05 – Document 9

1.3 Memorandum from Jennifer
O’Brien to Professor E More
and Professor Yerbury -16/03/05 – Document 10

1.4 Memorandum from Jennifer
O’Brien to Professor E More -16/03/05 – Document 11

1.5 Handwritten notes of Jennifer
O’Brien -16/03/05 – Document 12

1.6 Memorandum from Jennifer
O’Brien to Professor E More
cc Professor D Yerbury
Mr T Sprague, Ms S Litchfield -23/03/05 – Document 14

2. A legible photocopy of each of the documents referred to in point 1 above”

3 Although Rule 33.4 UCPR expressly gives the Defendant standing to apply to set aside the subpoena, when the subpoena motion was called on for hearing, Mr Paul Dillon, solicitor for Macquarie University, appeared to support the motion, as his client was entitled to do, and he handed written submissions to the court.

4 The motions were filed in the context of a defamation action brought by the Plaintiff who, at relevant times, was employed by Macquarie University (the University) as a lecturer, and as Deputy Principal of the Macquarie University Special Education Centre School (the school). The Defendant was employed as the University’s internal solicitor.

5 In November 2004, a parent (Ms Johnston) of a child at the school made a complaint to the University about the school’s treatment of the child. Thereafter, there was an inquiry (which exonerated the Plaintiff of any wrongdoing) conducted by Mr Geoffrey Kelly (Mr Kelly) appointed by the University. The inquiry was monitored by the Ombudsman. It seems to be common ground that the alleged defamatory publications (of which there were 5), relied upon by the Plaintiff, occurred, temporally at least, while the Defendant was in the course of acting for the University in respect of the inquiry.

PUBLICATIONS AND PLEADINGS

6 In order to put the proceedings in context it is necessary to say something briefly about the alleged defamatory publications and the pleadings.

7 In her Amended Statement of Claim filed in the District Court (the proceedings being subsequently transferred to this Court) on 13 October 2006 the Plaintiff as to the first publication, in paragraph 5, alleged that on 15 March 2005 the Defendant published to Mr Kelly matter set out in Part 1 of Annexure A. Part 1 of Annexure A stated:

The matter referred to in paragraph 5 was the following;

(a) “Sally Howell has been active in her contact with both Ann George and Kyle Pitt in urging them not to participate in any interview with you.”
(b) “Sally Howell has extended the same approach to witnesses including Felicity Graham and Brigid Riley”.

8 In relation to this publication paragraph 5.10 of the Amended Statement of Claim stated:

“5.1 The publication is that described in paragraph 1 of page 2 of the letter from the NSW Ombudsman dated 18 August 2005 to Professor Loxton. The plaintiff is unable to provide further particulars until Macquarie University releases documents to her under the Freedom of Information Act.”

9 The paragraph in the Ombudman’s letter to Professor Loxton referred to is in these terms:

“I note that the investigator, Mr Kelly, commented about ‘obstruction’ of the investigation by Ms Howell (see file note dated 15 March 2005, attached behind tab ‘file notes 3.32-3.38’ to the folder) regarding the investigation into the allegation against Ms George. Mr Kelly said (at point 2) that ‘Sally Howell has been active in her contact with both Ann George and Kyle Pitt in urging them not to participate in any interview’. Mr Kelly‘s file note then goes on -
I expressed concern [to the university’s solicitor, Ms O’Brien] that actions of this nature by Sally Howell constituted an obstruction to the investigation, compromised the independence and transparency of the investigation, and may constitute interference with the witnesses. Jenny indicated that Sally Howell had extended the same approach to the witnesses I have identified including Felicity Graham and Brigid O’Riley.
I recommended that consideration be given to a direction to Sally Howell that she not communicate with witnesses and other persons subject of allegations in this matter, in the circumstances.
We are concerned at this conduct by Ms Howell. It seems to have been aimed at frustrating the conduct of an investigation sanctioned by law.”

10 By her defence the Defendant, inter alia, admitted conversations with Mr Kelly regarding the investigation but denied the publication recorded in his file note. She also denied the defamatory imputations alleged.

11 With regard to the second publication, alleged in paragraph 9, the Plaintiff claimed that on 16 March 2005, the Defendant published to Deputy Vice Chancellor Elizabeth More, the matter set out in Part 2 of Annexure A. Part 2 of Annexure A reads:

“The matter referred to in paragraph 9 was the following:
(a) “Mrs Howell has advised other members of staff that they need not participate in a face to face interview.”

12 Paragraph 9.1 asserted:

“9.1 the matter was published as part of a memorandum sent to Professor More. The plaintiff is unable to provide further particulars until Macquarie University releases documents to her under the Freedom of Information Act.”

13 The whole of the memorandum to Professor More is one of the subjects of the University subpoena.

14 By her defence, the Defendant, inter alia claimed legal professional privilege in respect of the Second Publication and denied defamatory imputations.

15 The Third Publication was pleaded in paragraph 13. It asserted that on 16 March 2005 the Defendant published to Deputy Vice Chancellor More and the Vice Chancellor, Professor Yerbury the matter set out in Part 3 of Annexure A. Part 3 of the Annexure reads:

“The matter referred to in paragraph 13 was the following:
“3. Mrs Sally Howell, Deputy Principal of the School, has through her solicitor complained to the Ombudsman about the manner in which the University has conducted the investigation to date. Her allegations concern this office, Mr Kelly (our investigator) and Mr Sprague.
4. Mrs Howell has also requested that the Ombudsman direct the University to suspend its investigation of this matter and has asked the Ombudsman to investigate the University’s handling of the matter pursuant to Section 25G(2) of the Act.
……. She has objected to almost every step undertaken by the University and she has directed her criticism at anyone whom she perceives to be involved in this matter on behalf of the University.
…… Mrs Howell has approached at least one potential witness to seek to persuade her not to consent to a face to face interview with the investigator. She also maintained this position before other members of staff at a meeting on 17 February 2005, at which Mr Sprague was also present…………..”

16 As with the Second Publication, the Plaintiff asserted that the matter was published as part of a memorandum of which the Plaintiff is unable to provide further particulars until the University releases documents to her. The memorandum is also included in the University Subpoena.

17 The Defendant, in respect of the Third Publication again, inter alia, pleaded legal professional privilege and denied defamatory implications.

18 As to the Fourth Publication, the Plaintiff pleaded:

“17. On or about 21 March 2005 the defendant published to Deputy Vice Chancellor More and Dr Alan Rice the matter set out in Annexure A, Part 4 (referred to as “the Fourth Publication”)
Particulars of the Fourth Publication
17.1 The matter was a draft letter to the plaintiff by the university, sent to Professor More for her approval. Subsequently it was sent to Dr Alan rice for his signature.”

19 Part 4 of Annexure A read:

The matter referred to in paragraph 17 was:

“21 March 2005
TO GO ON PROFESSOR ALAN RICE’S LETTERHEAD
Dear Mrs Howell
Re: INVESTIGATION UNDER OMBUDSMAN ACT 1974
I am writing to reaffirm that the University and its staff are covered by the Ombudsman Act 1974. As you know this is also referred to in the Macquarie University Enterprise Agreement 2003-2006 in Attachment 7 – Code of Conduct. The Agreement regulates your employment with the University.
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 Ms Johnston. 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 requests 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.
Thus I am now writing to you with a clear direction that you not speak to any other person who may have information relevant to the investigation of the complaint made by Ms K Johnston dated 24 November 2004. 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.
I also must notify you that if you disregard my lawful direction outlined above, that your conduct will fall within the definition of misconduct in 13.03.03 of the Enterprise Agreement.
If conduct within that definition occurs you will be placing yourself in a situation which may lead to the University using the Disciplinary Procedures in 13.03 of the Agreement.
A copy of this letter is being sent to Human Resources for placement on your personal file as a record of my direction to you.
Yours sincerely
Professor Rice.”

20 In respect of the Fourth Publication, the Defendant, inter alia, pleaded legal professional privilege and denied defamatory imputations.

21 Paragraph 21 pleaded the Fifth Publication:

“21. Prior to 6 July 2005 the defendant published to Ms Helen Freidman, the Assistant University Solicitor at Macquarie University the matter set out in Annexure “A” part 5 (referred to as the “Fifth Publication”)
Particulars of Fifth Publication
The publication was the transfer of the defendant’s legal file concerning the investigation to Ms Freidman in May 2005. The file contained information about the First, Second, Third and Fourth Publications and a ‘direction’ issued to the plaintiff by the university dated 30 March 2005, which information included the Fifth Publication.”

22 Part 5 of the Annexure provided:

The matter referred to in paragraph 21 was:
“The grievance lodged by Sally Howell principally concerned a direction issued by Dr Rice to Mrs Howell on 30 March 2005 that she desist from discussing with persons involved in the investigation the factual matters giving rise to the complaint or the manner in which the University had determined that the matter be investigated.”

23 By her defence, the Defendant, inter alia, denied the publication alleged, claimed legal professional privilege and denied defamatory imputations.

24 In relation to the whole of the Amended Statement of Claim, the Defendant pleaded absolute privilege by virtue of section 25H(2) of the Ombudsman Act, and clause 5 of Schedule 1 of the Macquarie University Act, and at common law. She also pleaded qualified privilege arising from the Defendant’s role as the University Solicitor.

THE SUBPOENA MOTION

25 The six documents covered by the University subpoena were produced to the Court in a sealed envelope but I have not inspected them. In respect of each of them the University claims legal professional privilege. Both the Defendant and the University assert that the subpoena should be set aside, either because the Plaintiff is prevented by an issue estoppel from challenging the claim of legal professional privilege or because the subpoena constitutes an abuse of the court’s process. This arises so it is contended as a consequence of proceedings in the Administrative Decisions Tribunal (ADT) under the Freedom of Information Act (FOI Act).

26 In dealing with the subpoena motion it will be necessary to dwell at some length on the Plaintiff’s attempts to obtain from the University documents under the FOI Act. For the most part, I take the unchallenged history of this from the affidavit of Andrew Gregory Miers, solicitor for the Defendant, sworn 12 March 2009.

27 The Plaintiff in all made six applications to the University under Part 3 of the FOI Act, each constituted by a letter from her husband and solicitor, Mr Philip Howell, to an officer of the University. All the documents sought related directly, or indirectly, to the complaint by Ms Johnston and the investigation which followed it. The applications were respectively made on 3 June 2005; 13 June 2005; 2 August 2005; 26 August 2005; 17 November 2005; and 22 December 2005.

28 The University is an “agency” for the purposes of the FOI Act. Section 16 in Part 3 gives a person “a legally enforceable right to be given access to an agency’s documents in accordance with this Act”.

29 By section 25, an agency may refuse access to a document “if it is an exempt document”. Exempt documents are defined in Schedule 1 to the Act. They include by clause 10, a document “if it contains matter that would be privileged from production in legal proceedings on the ground of legal professional privilege”.

30 Section 63 of the Administrative Decisions Tribunal Act (ADT Act) relevantly prescribes the powers of the ADT:

“63 Determination of review by Tribunal

(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 . “

31 Being aggrieved by the University’s responses to her applications, the Plaintiff instituted review applications in the ADT pursuant to section 53 of the FOI Act.

32 As the University subpoena itself records, all the documents sought by it were the subject of proceedings in the ADT, numbered 053320. Those proceedings together with proceedings numbered 053277 were heard at first instance by Judicial Member, Wilson, in December 2005. Mr Wilson gave his decision on 7 July 2006.

33 In relation to document 1.1 in the subpoena “Email to Jennifer O’Brien”, Document 1.2 “Email from Jennifer O’Brien to Tim Sprague” and Document 1.12 “handwritten notes of Jennifer O’Brien, Mr Wilson said:

“Documents (1.1, 1.2 and 1.12) consist of:

“A communication by an officer to the Respondent’s legal advisor, two notes made by the legal officer and a communication by her. They narrate, and record, a development arising in the course of the investigation. The last-mentioned communication is a proposal by the legal officer as to what ought to be done in the circumstances. Clearly the legal officer’s advice was being sought, and in fact was rendered, in her professional capacity. The information was supplied to, and then investigated by, the legal officer with a view to providing advice. Clause 10 of the Schedule to the Act therefore has application. These documents are brief and therefore editing is not practically possible.”

34 In respect of documents in the subpoena 1.3 “Memorandum from Jennifer O’Brien to Professor E More and Professor D Yerbury” and document 1.4 “Memorandum from Jennifer O’Brien to Professor E More”, Mr Wilson said at paragraph 23 of his decision:

“Documents (including 1.3 and 1.4) are also communications to an officer of the Respondent by its legal advisor. All communications expressly relate to the investigation into the incident and provide advice by the author of a legal nature concerning the Respondent’s position and the steps that ought to be taken upon the basis of that advice. In addition, the evidence clearly shows that these documents have a nexus with the litigation that was anticipated as it would be quite unrealistic to find that the Respondent’s legal advisor viewed the investigation and the anticipated litigation as being independent of each other. Clause 10 of the Schedule to the Act therefore has application. It would not be practicable to edit these documents satisfactorily.”

35 The remaining document in the subpoena 1.6 “memorandum from Jennifer O’Brien to Professor E More, cc Professor D Yerbury, Mr T Sprague, Ms S Litchfield was dealt with by Mr Wilson at paragraph 25 of his decision:

“Document (1.6) is a communication by the Respondent’s legal advisor to another officer. Paragraph 2 of that communication notes legal advice formerly rendered to the Respondent but paragraphs 1 and 3 do no more than narrate factual developments in the course of the investigation then under way. Whilst this document was essentially to inform the recipient of the factual progress of steps being undertaken, on behalf of the Respondent, in the course of the investigation, it has a clear nexus with the ongoing assistance, of a legal nature, that the legal advisor was rendering to the Respondent (following Trade Practices Commissioner v Sterling (1979) 36 FLR 244; Nederlandse Reassurantie Groep Holding NV v Bacon & Woodrow [1975] 1 All ER 976. Consequently, the document comes within clause 10 of Schedule I to the Act. Editing of the exempt matter is not reasonably practicable. The Tribunal notes that the Respondent could possibly see fit to release this document to the Applicant under the residual discretion that it has pursuant to the legislation, given the knowledge that the Applicant stands possessed of. However, this is a matter for the Respondent alone and not the Tribunal (see Ngo v Director-General, Attorney-General’s Department (No.4) [2003] NSW ADT 122).”

36 The Plaintiff, through Mr Howell, appealed against Mr Wilson’s decision to an Appeal Panel pursuant to s112 of the ADT Act. The Notices of Appeal in both matter 53277 and matter 53320 challenged Mr Wilson’s findings on a number of points of law and sought to extend the appeals to the merits of the case.

37 The Appeal Panel dealt with the appeals in 2 stages. On 1 March 2007 it affirmed the decision of Mr Wilson, in respect of the documents listed in the University subpoena and on 25 September 2007 declined to release any documents in the exercise of a residual discretion. In the course of its reasons the Appeal Panel said something about the background of the matter which not only explains the issues before it but highlights the nub of the Plaintiff’s cause of action in these proceedings:

“7. Background: It is desirable to explain the context in which this dispute arises. In Mrs Howell’s submission, these matters are relevant to any public interest calculus. They are also relevant to her case that the legal professional privilege was not applicable to several of the 13 documents because they were created for an improper purpose.
8. As 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.
From 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.
On 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.
Mrs 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.
Early 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.
On 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-cooperation with the investigation. (This document 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.)
Accepting 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 requests 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.
On 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 request, including the precise details of those previous requests. She objected to the suggestion, found 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, Ms 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.
In 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.
In 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 Ms 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 second notice of appeal refers to the fact that on 12 March 2006 Mrs Howell commenced defamation proceedings against the University Solicitor, Ms O’Brien, on the basis of the statements she made about Mrs Howell in the documents sought in the requests.”

38 The Appeal Panel recited the grounds of appeal including the ground that Mr Wilson had:

“failed to consider that certain documents were prepared for the dominant purpose of the university discharging its statutory obligation to investigate.

..failed to consider that the documents dated after 28 February 2005 [documents 9,10,11,12,13,14,15] were prepared for the improper purpose of damaging the appellant.”

39 As to whether the relevant documents on their face attracted legal professional privilege, the Appeal Panel said:

“What is sufficient evidence for the purpose of assessing whether documents fall within the sphere of legal professional privilege will vary from case to case. While it is not uncommon in FOI cases in the Tribunal for a solicitor to provide evidence in respect of documents said to be privileged, it is not essential. In this instance the Tribunal had evidence from the client, as distinct from the lawyer, as to the privileged nature of the documents. The Tribunal also undertook its own inspection of the documents. It had evidence of the lawyer’s admission to practice and of her role as in-house solicitor. These were, we think, sufficient steps to determine whether the documents were privileged.
In any event in our view, the question of whether the documents in principle fell within the bounds of legal professional privilege was not an area of serious contest between the parties. Mrs Howell’s main point was that the ‘improper purpose’ exception applied to the documents that post-dated 28 February 2005 (i.e. documents 9-15) and therefore those documents lost their privileged status.”

40 In relation to the argument that the documents had lost their privileged status, the Appeal Panel encapsulated the issue:

“As we understand the case put for Mrs Howell on this point, it is said that Ms O’Brien, the University Solicitor was actuated in giving her advice (after 28 February 2005), and in procuring the issuance of the disciplinary direction by an animus she held towards Mrs Howell over the position that Mrs Howell had taken over she or other staff members submitting to face-to-face interviews.
The University has not disputed that, in an appropriate case, otherwise privileged communications may lose that protection for reasons such as waiver or improper purpose. Its submission is that there is an evidentiary onus lying on the party raising such a case.”

41 The Appeal Panel then referred to the observations of Young J in AWB Ltd v Cole (No. 5) [2006] 155 FCR 30 before holding that the principles stated by his Honour were equally applicable to FOI proceedings. The Appeal Panel continued:

“The review applicant must make out a case, at least to a point where the Tribunal is satisfied that there is a prima facie case. The agency should be called upon to respond at that point.
In this case Mrs Howell did not put on any evidence, though there had been extensive reference to ‘improper purpose’ in the submissions prepared and filed by Mr Howell before the hearing (see submissions filed 24 October 2005) and again in the submissions filed after the hearing (on 10 March 2006).

42 And a little later in the reasons:

“Mrs Howell had the opportunity to put on evidence. It is clear from the passage from the transcript that her counsel proceeded with the case on the evidence as submitted at that point. Mr Howell submits that the Tribunal erred in not ensuring that all deponents were made available for cross-examination. We can find nothing in the Tribunal files or the transcript of the proceedings to suggest that any request of this kind was made. The matter was not raised by counsel when she had the opportunity”.

43 The Appeal Panel referred to the absence in Mr Wilson’s reasons of any reference to the submission of “improper purpose” made on behalf of the Plaintiff and said:

“This was a case where there were ‘mere assertions’, to use words found in the leading authorities. The
Tribunal should however, we think, have provided some response to the ‘improper purpose’ case put by Mrs Howell, explaining that it was unsustainable in the absence of evidence raising a prima facie case.
The Tribunal, had it given reasons, would, inevitably we consider, have dismissed the case. There was nothing, in our view, on the face of the documents that could lead one to think that the University or Ms O’Brien were engaged in some form of misconduct. Therefore there was no circumstance which might, had the Tribunal addressed the issue, have possibly produced a different result (see Stead v State government Insurance Commission (1986) 161 CLR 141 at 145-6 and Kioa v West (1985) 159 CLR 550 at 633.”

44 In the outcome, the Appeal Panel affirmed Mr Wilson’s decision in respect of the documents in the University subpoena. The Plaintiff thereupon appealed to the Court of Appeal. Its judgment was delivered by Campbell JA (Spigelman CJ and Bell JA agreeing) on 12 March 2008, [2008] NSWCA 26. The appeal was dismissed with costs.

45 After reciting the relevant facts and dealing with a submission by Mr Howell as to the proper interpretation of clause 10 in Schedule 1 to the FOI Act, Campbell JA made reference to the proceedings in the ADT:

“The decision of the Appeal Panel did not set aside the Tribunal’s decision on the ground that the Tribunal had determined whether the documents in question were subject to legal professional privilege by a procedure which was inconsistent with that adopted in legal proceedings. However, there is no error of law in the Appeal Panel’s failure to set aside the Tribunal’s decision on that ground.

Sufficiency of Proof of Prima Facie Privilege

57 Mr Howell submits that (quite apart from the way in which the Tribunal went about dealing with submissions that the documents were created for an improper purpose) the material before the Tribunal and the Appeal Panel did not suffice even to make out a prima facie case for the existence of the privilege. When he refers to a “prima facie case” he means evidence that would be sufficient to establish the privilege, if there were no improper purpose.

58 At both the hearing before the Tribunal, and before the Appeal Panel, unexpurgated versions of the documents in question were before the Tribunal and the Appeal Panel. They were received, pursuant to section 55(b) FOI Act , on the basis that they were not disclosed to Mr and Mrs Howell.

59 In dealing with legal professional privilege, the Tribunal said, at [21]:
“The relevant principles are quite clear and there is no issue that they are as set out in the Respondent’s submissions, the only issue being the application of these principles to the documents under review.”

60 The Respondent’s submissions included reference to the “dominant purpose” test, but made no reference to the improper purpose exception.

61 The Appeal Panel at [34] stated, concerning para [21] of the Tribunal’s reasons:
“In our view, at this point the Tribunal is simply referring to the ordinary test for the determination of whether documents or communications are privileged, as enunciated in Esso Australian Resources Ltd v Federal Commissioner of Taxation [1999] 201 CLR 49 and subsequent authorities. There was no need for it to refer to the exceptions to the privilege at this point of its analysis. It is clear that it proceeded by applying the usual test to the documents.”

In other words, while the Tribunal did not expressly refer to the “dominant purpose” test, it referred to it indirectly, by its reference to the respondent’s submissions, and proceeded to apply it. I can see no error of law in the Appeal Panel adopting this reading of the reasons of the Tribunal.
………………

63 Mr Howell raised a specific appeal ground before the Appeal Panel that:

“The Tribunal failed to consider that certain documents were prepared for the dominant purpose of the University discharging its statutory obligation to investigate.”

64 The Appeal Panel dealt with that ground of appeal by saying, at [34]:
“It was reasonably open to the Tribunal to find on the material before it that the dominant purpose (at least) for the making of the communications by the University Solicitor, Ms O’Brien, was to render ‘legal advice’. There is no doubt that some of that advice concerned the University’s responsibilities in respect of its statutory obligations so far as the investigation of child maltreatment complaints is concerned. There is nothing exceptional in an organisation seeking advice from a lawyer about implications of that kind.”

65 As well, the Appeal Panel noted, at [42]:
“In any event in our view, the question of whether the documents in-principle fell within the bounds of legal professional privilege was not an area of serious contest between the parties. Mrs Howell’s main point was that the ‘improper purpose’ exception applied to the documents that post-dated 28 February 2005 (i.e. documents 9-15) and therefore those documents lost their privilege status.”

46 As to the “dominant purpose” test and the concept of “improper purpose” his Honour said :

“72 The purpose for which a document is brought into existence is a question of fact: Grant v Downs [1976] HCA 63; (1976) 135 CLR 674 at [5], 692 per Jacobs J; Waterfordv The Commonwealth [1987] HCA 25; (1987) 163 CLR 54 at [10], 66 per Mason and Wilson JJ; [14], 78 per Brennan J. While sometimes direct testimonial evidence from the person who created a document concerning the purpose which it was brought into existence can be both relevant and important, there is no requirement, even in a court of law, for the purpose with which a document was brought into existence to be proved in this way. Sometimes, an examination of the document itself can be enough to establish the dominant purpose with which it came into existence. That is often the case with a brief to counsel to advise, or a memorandum of advice from counsel, that deals with no topic other than the giving of advice. Sometimes, examination of the circumstances in which a particular document has been produced might show that even though the document considered on its own looked like legal advice, or a request for legal advice, there were other extraneous circumstances that led to the conclusion that it was produced with a dominant purpose other than one which would make the document privileged. It is a question of fact, involving weighing such evidence as is available, whether in any particular case a document was produced with a dominant purpose of giving or obtaining legal advice or the provision of legal services.

73 Mr Howell submits that in the present case the nature of the submission that the Appellant made to the Tribunal concerning improper purpose obliged it not to accept as undisputed fact statements in the documents that were not verified by any other evidence. He submits that is a possibility in the present case that Ms O'Brien intentionally or recklessly misrepresented facts in the advice that she gave, for the purpose of inducing the University to act against the Appellant. He submits that a lawyer who had an improper purpose of seeking to induce his or her client to harm a particular person, and who misrepresented facts in advice so as to advance that improper purpose, could succeed only if the advice had the "look and feel" of legal advice. Thus, he submits, merely examining the documents cannot answer the question that is raised for determination. Further, he submits that evidence from the client as to the purpose with which the advice was sought cannot answer the question either, because achievement of the solicitor's purpose depends upon the client being duped into thinking it is receiving genuine and unbiased legal advice. He submits that when the thrust of the "improper purpose" submission was that Ms O'Brien had used her "advice" as a weapon to harm the Appellant, the Panel had to adopt the procedure which would allow it to test whether the submission was correct.

74 I do not accept that the mere making of a submission that a lawyer is motivated by an improper purpose in giving advice has that consequence. Rather, it is necessary for the submission that there is such an improper purpose to be backed up by evidence sufficient to raise a prima facie case that there really is such an improper purpose. The Appeal Panel considered the correct question, in asking itself whether such prima facie evidence existed.

75 Mr Howell’s submission went further: he alleged that when the Appeal Panel accepted the veracity of statements of alleged fact in the Documents when the maker of those statements was not called as a witness, there was a breach of the requirement for procedural fairness. He noted that the Appellant had not seen the disputed documents, yet the University relied almost wholly on the contents of the Documents. He submitted that the University "invited the Tribunal to accept statements in the Documents as fact, and then deliberately deprived the appellant of the opportunity of testing that evidence. To avoid the denial of procedural fairness which resulted, the Panel should have declined to accept the veracity of the statements of alleged fact in the Documents, and their claimed significance, without corroborating evidence."

76 The requirement in section 55 FOI Act for the Tribunal to ensure that it does not disclose any exempt matter sets the frame within which proceedings in the Tribunal must occur. When Parliament has required that exempt matter not be disclosed, the consequences of not disclosing it could not, in themselves, be a breach of a legal requirement of procedural fairness. The Appellant had the opportunity to call such evidence as she wished, and make such submissions as she wished, including a submission that the Tribunal ought be satisfied, taking into account that the University had failed to call Ms O'Brien, that a prima facie case of improper purpose was made out. I do not accept that in deciding whether a prima facie case of improper purpose had been made out there was any obligation of law on either the Tribunal, or the Appeal Panel, not to accept as fact statements in the documents that were not verified by any other evidence.

77 In deciding what was the dominant purpose of creation of the various documents in dispute in the present case, both the Tribunal and the Appeal Panel had an advantage not available to this Court, of seeing unexpurgated versions of the documents themselves. The appeal to the Appeal Panel was, so far as the existence of legal professional privilege was concerned, an appeal only on a question of law. In my view the Appeal Panel made no error of law in failing to detect an error of law in the way the Tribunal had dealt with the “dominant purpose” element of the claims for privilege.”

47 His Honour went on to refer to and expressly approve the reliance by the Appeal Panel upon the statements of principle made by Young J in AWB:

“85 …. The appeal Panel said, at [46]-[49] of its first-stage reasons:
“Young J in the Explanatory Statement in the AWB case gave the following explanation of the exception to legal professional privilege which these submissions seek to invoke:
“Communications between a lawyer and client which facilitate a crime or fraud are not protected by legal professional privilege. This principle is often referred to as the ‘fraud exception’ to legal professional privilege, but this does not capture its full reach. The principle encompasses a wide species of fraud, criminal activity or actions taken for illegal or improper purposes and extends to ‘trickery’ and ‘shams’. As the fraud exception is based on public policy grounds, it is sufficiently flexible to capture a range of situations where the protection of confidential communications between lawyer and client would be contrary to the public interest.’
As his Honour noted at para [215] of his reasons:
‘It is important to bear in mind that the fraud exception is based on public policy grounds. The principle is sufficiently flexible to capture a range of situations where the protection of confidential communications between lawyer and client would be contrary to the public interest: see Kearney at 514–515; R v Cox at 614. This aspect of the principle is reflected in the statement that ‘[t]he privilege takes flight if the relationship between lawyer and client is abused’: Clark v United States (1933) 289 US 1 at 15 ….’
In the AWB case Young dealt at paras [217] and ff with the question of what is required by way of evidence and the evidentiary standard when an allegation of the present kind is made. The Court derived the following principles from the leading authorities.

“ - There must be more than a mere assertion or allegation of fraud
- There must be reasonable grounds for believing that the relevant communication was for an improper purpose.
- There must be some prima facie evidence that the allegation of improper purpose has some foundation in fact.
- It is not necessary to prove an improper purpose on the balance of probabilities.
- It must also be established that the communication which is the subject of the claim for privilege was made in furtherance of, or as a step preparatory to, the commission of the fraud or wrongdoing.
The principles are, in our view, equally applicable [to] FOI proceedings. The review applicant must make out a case, at least to a point where the Tribunal is satisfied that there is a prima facie case. The agency should be called upon to respond to that point.”

48 Campbell JA later referred to the Appeal Panel’s approach:

“91 That the Appeal Panel had in mind whether there was sufficient evidence to raise a prima facie case is shown by the way it expressly mentioned, in para [54], that in the AWB Case the "evidence contained material which credibly raised the possibility of the fraud/improper purpose exception applying" , and the way the Appeal Panel dealt with the argument that there were insufficient reasons given by the Tribunal for rejecting the submission that the documents lost privilege by reason of improper purpose. In substance, the Appeal Panel found that the reasons of the Tribunal were inadequate on that topic, but after considering the evidence for itself the Appeal Panel declined to remit the matter to the Tribunal.”

49 His Honour then proceeded to quote the two paragraphs set out in paragraph 43 above, before adding:

“I see no error of law in the Appeal Panel taking that view of the evidence. Nor is there any error of law in the Appeal Panel declining to remit the matter to the Tribunal in circumstances where the Tribunal had made an error of law by failing to give reasons for rejecting the “improper purpose” case, but where the Appeal Panel was of the view that, had the Tribunal given reasons, the outcome would inevitably be the same as that which the Tribunal actually reached.”

50 A long line of authority establishes the principle of issue estoppel defined thus by Dixon J in Blair v Curran ([1939] 62 CLR 464 at 531

“A judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies.”

51 In my opinion, the very issue debated before me upon the subpoena motion was decide adversely to Mrs Howell by the ADT the issue being that the subpoena documents were subject to legal professional privilege of the University..

52 However, the University is not a party before me and, in my opinion, the Defendant is not a privy of the University, although Mr B R McClintock SC who appeared with Mr A T S Dawson for the Defendant, submitted otherwise. The principle is set forth in Spencer Bowen Turner and Handley, The Doctrine of Res Judicata (third edition by the Honourable K R Handley) at paragraph 231 (omitting references):

“Res Judicata estoppels operate for, or against, not only the parties, but those who are privy to them in blood, title or interest. Privies includes any person who succeeds to the rights or liabilities of the party upon death or insolvency, or who is otherwise identified in estate or interest. It is essential that the party to be estopped by privity must have some kind of interest, legal or beneficial, in the previous litigation or its subject matter. Privity was described by the US Supreme Court as a mutual or successive relationship to the same right of property, although this cannot be exhaustive. Hence assignees will be bound as privies of the assignor.”

53 I do not think that a solicitor in the position of the Defendant has such an identity of interest as to be regarded as a “privy” of the University within the principle stated. However, the doctrine of issue estoppel has been extended to situations where the re-litigation of an issue would amount to abuse of process. Such a case was Rippon v Chilcotin Pty Ltd (2001) 53 NSWLR 198 where Handley JA (with whom Mason P and Heydon JA agreed) quoted with apparent approval the decision of Giles CJ Comm D (as he then was) in State Bank of NSW v Stenhouse Ltd (1997) Aust Torts Reports 81-423 (64,077 at 64,089):

"The guiding considerations are oppression and unfairness to the other party to the litigation and concern for the integrity of the system of administration of justice, and amongst the matters to which regard may be had are -

(a) the importance of the issue in and to the earlier proceedings, including whether it is an evidentiary issue or ultimate issue;

(b) the opportunity available and taken to fully litigate the issue;

(c) the terms and finality of the finding as to the issue;

(d) the identity between the relevant issues in the two proceedings;

(e) any plea of fresh evidence, including the nature and significance of the evidence and the reason why it was not part of the earlier proceedings; ...

(f) the extent of the oppression and unfairness to the other party if the issue was relitigated and the impact of the relitigation upon the principle of finality of judicial determination and public confidence in the administration of justice; and

(g) an overall balancing of justice to the alleged abuser against the matters supportive of abuse of process". “

54 For the most part, the circumstances listed above would seem to indicate a finding that the University subpoena does involve an abuse of process. However, Mr Howell, in argument before me, sought to rely on “fresh evidence” in the form of documents disclosed to his client after the hearing before Mr Wilson. He referred to his client’s affidavit sworn 13 May 2009 whereby she deposed to having received at various times, on and after 23 December 2005, documents which, so he claimed, evidenced improper purpose.

55 The first of those documents was the reference to Mr Kelly’s file note in the letter from the Ombudsman to Professor Loxton dated 18 August 2005 quoted in paragraph 9 above.

56 As it appears, the file note referred to is part of a file note dated 15 March 2005 of which the Defendant received the full text on 3 November 2008. The note read:

“I telephoned Jenny O’Brien in response to an email message received this morning.
1. I advised her that I have not heard anything from either of the solicitors acting for Kyle Pitt and Ann George. We agreed that Jenny would provide me with contact details for each and I will make direct contact.
2. Jenny advised, as she had previously, that the solicitor for Ann George had indicated to her that she was happy for Ann to participate in a face-to-face interview and preferred that approach. Since then however, Sally Howell has been active in her contact with both Ann George and Kyle Pitt in urging them not to participate in any interview. I am unaware of any direct contact with the solicitor for Kyle Pitt and what their position on a face to face interview was and is, but I understand they were favourably disposed but still in the consideration stage.
3. I expressed concern that actions of this nature by Sally Howell constituted an obstruction to the investigation, compromised the independence and transparency of the investigation, and may constitute interference with the witnesses. Jenny indicated that Sally Howell had extended the same approach to the witnesses I have identified including Felicity Graham and Brigid O’Riley.
I recommended that consideration be given to a direction to Sally Howell that she not communicate with witnesses and other persons subject of allegations in this matter, in the circumstances.
4. Jenny informed me that Philip Howell, Sally’s husband and solicitor, has lodged a 45 page complaint to the Ombudsman about Jenny’s conduct of this matter and the investigation generally.
Jenny is preparing a report to the Vice Chancellor and is making, or has made, a response to the Ombudsman.”

57 Mr Howell next referred to a letter from Professor Loxton to the Ombudsman dated 12 September 2005, which the Defendant received on 17 February 2006. The letter acknowledges the Ombudsman’s letter setting out his conclusions and determination and includes the paragraph:

“For clarification purposes please note that I am informed by the University Solicitor, Mrs Jenny O’Brien, there are two errors in the investigation reports which are referred to in your letter which should be brought to your attention. The errors are to be found at the paragraph setting out the details of Mr Kelly’s file note dated 15 March 2005 at page two of your letter. Firstly, it is Mrs O’Brien’s recollection that Felicity Graham never advised her that she had received such an approach from Ms Howell, and she may have inadvertently led Mr Kelly to believe Ms Graham’s initial position was based on advice from Ms Howell. Secondly, it is her understanding the reference to ‘Brigid O’Riley’ should have been ‘Glenys O’Riley' and confirms Ms O’Riley was one of at least three potential witnesses who were advised by Ms Howell that they did not have to participate in a face to face interview. These errors do not appear to affect the findings made in this matter by the investigator or the University or the determination made by your office.”

58 In light of that material Mr Howell submitted that the conclusion to be drawn is that the Defendant was the source of all Mr Kelly’s information about the Plaintiff and that the direction given to the Plaintiff on 30 March 2005, a draft of which being one of the publications relied upon by the Plaintiff, resulted from the Defendant’s allegations against the Plaintiff, not because of anything Mr Kelly observed himself. Moreover, so Mr Howell contends, it evidences the publication by the Defendant to Mr Kelly of the allegedly defamatory material contained in the first publication, a publication denied by the Defendant on the pleadings.

59 Furthermore, so Mr Howell submitted, there is a discrepancy between Mr Kelly’s file note and a letter written by the Defendant to Mr Howell on 16 March 2005 which contains the sentences:

“I am instructed that Ms Glenys O’Reilly has informed my client that your client advised her that she need not attend a face to face interview with the University appointed investigator. Ms O’Reilly further advised my client that your client made similar statements to all staff members likely to be approached by the investigator. The second limb of Mrs O’Reilly’s assertion is yet to be confirmed. I note, however, that your client objected vigorously to the face to face interview proposal during the course of the meeting on 17 February notwithstanding the University had clearly indicated in December, 2004 that it no longer pressed for a face to face interview in so far as she was concerned.”

60 The discrepancy, so Mr Howell claimed, arises from the reference to an unconfirmed allegation in the letter, contrasted with positive assertions in Mr Kelly’s file note. Improper purpose, so Mr Howell contended was to be inferred from a combination of the exaggeration of the situation in the letter to Mr Howell and other documents annexed to the Plaintiff’s affidavit of 13 May 2009 including Mr Kelly’s file note of 18 February 2005 which contained the sentence:

“Jenny hoped that Sally Howell would not attend because of the issues relating to her response to the investigation to date, but she did attend. Her involvement was unhelpful”

61 Having carefully considered Mr Howell’s submissions, in the light of all the material before me, I am firmly of the view that nothing, which came to the Plaintiff’s notice after the hearing before Mr Wilson, evidences improper motive on the part of the Defendant. To my mind, it suggests no more than she was seeking to pursue her client’s interests and instructions to the best of her ability.

62 Before concluding my consideration of the subpoena motion, it is necessary that I deal with Mr Howell’s submission based on the decision of the High Court in Attorney General for the Commonwealth v Breckler (1999) 197 CLR 83.

63 The case concerned the question whether Section 37 of the Superannuation (Resolution of Complaints) Act (Cwth), (the Complaint Act) was invalid, in so far as it purported to confer the judicial power of the Commonwealth on a tribunal inconsistently with Chapter lll of the Constitution. In their joint reasons at paragraph 46 Gleeson CJ, Gaudron, McHugh, Gummow, Haynes and Callinan JJ, said:

“Reference also should be made to a consideration which, although not necessarily decisive, strengthens the case for validity which is otherwise made out. It is that the Complaints Act does not purport to give determinations of the Tribunal that conclusive character which would prevent collateral challenge in proceedings to compel observance of those determinations. Section 37(3) of the Complaints Act obliges the Tribunal to make a determination in writing which affirms the decision of the trustee in question, remits it, varies it, or sets it aside by substituting the decision of the Tribunal for that of the trustee. Upon such variations or substitutions, s 41(3)(a) operates by specifying that the decision of the Tribunal is "for all purposes" to be taken to be a decision of the trustee. That proposition is qualified by the phrase "other than the making of a complaint about the decision" so as to avoid a situation whereby the machinery beginning with the operation of s 14 is again set in motion, this time in respect of the Tribunal's deemed decision. Conferral upon the determination of the Tribunal of the status of a decision of the trustee does not bring with it a preclusive effect which immunises the determination, and thus its status, from attack in properly constituted curial proceedings. The scope and range of such proceedings is indicated earlier in these reasons.”

64 There is no provision in either the FOI Act or the ADT Act in or the effect of the provision in the Complaint Act that for all purposes the decision of the Tribunal was to be the decision of the trustee. Nor does the decision of the ADT seem to me to be one having a “preclusive effect which immunises the determination and thus its status from attack in properly constituted curial proceedings”. To the contrary, in my view, there is very much a “conclusive character” about the ADT’s determination.

65 The focus of the subpoena motion was not, in any event, the decision of the University. The question is whether it is an abuse of the courts process to re-litigate the precise issue which has been decided according to law by a properly constituted tribunal, which has express jurisdiction in the matter. It is also not to the point, in my view, that the procedures in the ADT may be less formal than those of the Court. The Plaintiff had every opportunity in light of the material available to her to adduce evidence and argue her position fully in the ADT. As I have found, nothing which has come into her possession since advances her position.

66 In the result, I am of the opinion that the issue of whether the documents listed in the subpoena under challenge are subject to legal professional privilege was resolved by the decision of the ADT and that it would be an abuse of the court’s process to permit that issue to be relitigated. Accordingly, on the Defendant’s motion. I would order that the University subpoena be set aside.

SUMMARY JUDGMENT

67 The defendant’s motion for summary judgment relied on several discrete bases for the relief claimed. It is appropriate that I deal with them separately. I will adopt as the relevant criteria the well known passage taken from the judgment of Barwick CJ in General Steel Industries Inc v Commissioner of Railways (1964) 112 CLR 125 at 129:

“The test to be applied has been variously expressed; ‘so obviously untenable that it cannot possibly succeed’; ‘manifestly groundless’; ‘so manifestly faulty that it does not admit of argument’; ‘discloses a case which the Court is satisfied cannot succeed’; ‘under no possibility can there be a good cause of action’; ‘be manifest that to allow them’ (the pleadings) ‘to stand would involve useless expense’.”

THE OMBUDSMAN ACT

68 Part 3A of the Ombudsman Act headed “Child Protection” contains a code for the resolution of complaints against certain designated government and non-government authorities of “reportable conduct” towards children. For the purposes of the Act, the University is undoubtedly a designated non-government agency and the complaint made by Ms Johnston concerning the alleged ill treatment of her son constituted a “reportable allegation”. The relevant definitions are:

"a reportable allegation" means an allegation of reportable conduct against a person or an allegation of misconduct that may involve reportable conduct .
"reportable conduct" means:

(a) any sexual offence, or sexual misconduct, committed against, with or in the presence of a child (including a child pornography offence), or
(b) any assault, ill-treatment or neglect of a child , or
(c) any behaviour that causes psychological harm to a child ,
whether or not, in any case, with the consent of the child . Reportable conduct does not extend to:

(a) conduct that is reasonable for the purposes of the discipline, management or care of children , having regard to the age, maturity, health or other characteristics of the children and to any relevant codes of conduct or professional standards, or
(b) the use of physical force that, in all the circumstances, is trivial or negligible, but only if the matter is to be investigated and the result of the investigation recorded under workplace employment procedures, or
(c) conduct of a class or kind exempted from being reportable conduct by the Ombudsman under section 25CA. “

69 The Act places stringent obligations upon relevant agencies, including the obligation to notify the Ombudsman of any reportable allegation, as soon as practicable and, in any event, within 30 days unless a longer period is agreed to by the Ombudsman.

70 Although the statute does not in terms require an agency to investigate any complaint it plainly envisages that this may or will occur. For instance, sections 25E, 25F and 25G provide:

“25E Monitoring by Ombudsman of investigations

(1) The Ombudsman may monitor the progress of the investigation by a designated government or non-government agency concerning a reportable allegation , or reportable conviction , against an employee of the agency if the Ombudsman considers it is in the public interest to do so.

(2) The Ombudsman or an officer of the Ombudsman may be present as an observer during interviews conducted by or on behalf of the agency for the purpose of the investigation and may confer with the persons conducting the investigation about the conduct and progress of the investigation .

(3) The head of the agency is to provide the Ombudsman with such documentary and other information (including records of interviews) as the Ombudsman may from time to time request with respect to the investigation .

25F Results of investigation and action taken to be reported to Ombudsman

(1) This section applies to an investigation concerning a reportable allegation , or reportable conviction , against an employee of a designated government or non-government agency that the Ombudsman monitors under this Part.

(2) The head of the agency must, as soon as practicable after being satisfied that the investigation has been concluded:

(a) send to the Ombudsman a copy of any report prepared by or provided to the head of the agency as to the progress or results of the investigation , and copies of all statements taken in the course of the investigation and of all other documents on which the report is based, and

(b) provide the Ombudsman with such comments on the report and statements as the head of the agency thinks fit, and

(c) inform the Ombudsman of the action that has been taken or is proposed to be taken with respect to the reportable allegation or conviction the subject of the investigation .


(3) After receiving that material and information, the Ombudsman may require the head of the agency or any officer involved in the investigation , or both of them, to provide such additional information as the Ombudsman considers necessary to enable the Ombudsman to determine whether the reportable allegation or conviction was properly investigated and whether appropriate action was taken as a result of the investigation .

(4) In subsection (3), "appropriate action" includes (without limitation) any penalty for the making of a reportable allegation that is shown to be false and malicious.

25G Investigation of reportable conduct by Ombudsman

(1) The Ombudsman may conduct an investigation concerning any reportable allegation , or reportable conviction , against an employee of a designated government or non-government agency of which the Ombudsman has been notified under this Part or otherwise becomes aware.

(2) The Ombudsman may also conduct an investigation concerning any inappropriate handling of or response to any such reportable allegation or reportable conviction , whether on the Ombudsman’s own initiative or in response to a complaint .

(3) The Ombudsman may exercise any conciliation or other relevant powers under this Act in connection with an investigation by the Ombudsman.

(4) The head of the agency is to defer an investigation into the matter if the Ombudsman notifies the head that the Ombudsman intends to investigate the matter under this Act and that the investigation by the agency should be deferred.

(5) At the conclusion of an investigation by the Ombudsman, or on a decision by the Ombudsman to refer the matter back to the agency, the Ombudsman is to provide the agency with any recommendations for action to be taken with respect to the matter, together with any necessary information relating to the recommendations. “

71 Of particular importance to this case are the provisions of section 25H:

“25H Protection and other provisions relating to disclosures of information

(1) A provision of any Act or law that prohibits or restricts the disclosure of information does not operate to prevent or restrict the disclosure of information (or affect a duty to disclose information) under this Part.

(2) If a disclosure of information is made under this Part, no liability for defamation or other civil liability is incurred because of the disclosure.

(3) Nothing in this Part affects any obligation or power to provide information apart from this Part. “

72 The word “information” is not defined, although it appears in several sections, within Part 3A. Mr McClintock submitted that it should be construed widely to achieve the purposes of the statute. That purpose, as it seems to me, is the prompt notification by an agency to the Ombudsman of a reportable allegation and, where appropriate, the investigation of that allegation, either by the Ombudsman or by the agency itself monitored by the Ombudsman. Clearly section 25H must be taken to extend beyond publications to, or by, the Ombudsman, which were already protected by section 17A(1) of the Defamation Act 1976.

73 There is no doubt that the University conducted an inquiry into Ms Johnston’s allegation and the correspondence makes it abundantly plain that the inquiry was monitored by the Ombudsman.

74 Mr Howell submitted correctly, I think, that the information to which section 25H(2) refers is information with which Part 3A deals, namely reportable allegations and the investigation of, and response to, them. He submitted also correctly, I think, that the phrase “under the Part” would deny protection to a person who has made a reportable allegation shown to be false and malicious as contemplated by section 25F (4).

75 However, for reasons earlier given, there is, in my view, not a scintilla of evidence that in anything she did the Defendant acted falsely or maliciously. Even if, which I doubt on the evidence before me, she was mistaken in her belief as to the attitudes and conduct of the Plaintiff, that is a very far cry from the animus required for her to have acted falsely and maliciously. Nor, so far as I am aware, was it ever suggested by anybody that Ms Johnston’s reportable allegation was made falsely and maliciously.

76 Mr Howell also submitted that the alleged publications were not, in any event, “disclosures of information” protected by section 25H(2). In relation to the first publication, he submitted that this was so because its subject matter was not “the reportable allegation”, or the University’s response, but rather concerned the Defendant’s views about the participation of staff members in the investigation. Similarly, he contended that the other alleged publications concerned matters strictly extraneous to the reportable allegation and the agency’s response. In substance, as I understand it, his contention was that section 25H only protects disclosures of information where the provision of that information is expressly provided for, such as in s 25B(2) and s 25D(1).

77 There is, I think, no significance to be given to the word “information” itself. Otherwise disclosures for the purposes of section 25C where the word “information “ is not used would not be protected unless made by, or to, the Ombudsman. In my opinion, “information” should be given its ordinary meaning, see for instance The Macquarie Dictionary, Third Edition, “information; 1. knowledge communicated or received concerning some fact or circumstance; news”.

78 Consistently with section 33 of the Interpretation Act and the line of cases dealing with the interpretation of remedial, beneficial, and protective provision in statutes, (see for instance D C Pearce and R S Geddes, Statutory Interpretation in Australia 6^th Edition paragraph 9.7) in my opinion, section 25H should, as submitted by Mr McClintock, be given the widest possible scope. As I have said Part 3A is plainly intended to facilitate a full and appropriate response to reportable allegations. It must be inferred that the legislature, by enacting section 25H, intended that those engaged in the investigation of a reportable allegation should receive full protection from civil litigation. Contrary to the submission of Mr Howell, I agree with Mr McClintock that the phrase “under this Part” used in section 25H(2) does not restrict the protection given to information “required” to be disclosed under Part 3A, as this would exclude such disclosures as those made under section 25D, where the use of the word “may” suggests a discretion. I favour the interpretation suggested by Mr McClintock that the words “under this Part” have a meaning akin to “in complying with this part”. The protection extends, in my opinion, to anything done by an officer of an agency in furtherance of the investigation, including in the case of a solicitor the provision of legal advice as to the manner in which the investigation should be conducted and the degree of cooperation which might be expected from employees of the agency.

79 As all the publications relied upon by the Plaintiff in this case related to the conduct of the Defendant in her role as solicitor for the University, advising and assisting it in the investigation of Ms Johnston’s reportable allegation, I hold that a defence based upon section 25H(2) of the Ombudsman Act applied to those publications. It follows that the Plaintiff’s action is bound to fail and that the Defendant is entitled to the relief she seeks. In case I am wrong in my interpretation of section 25H, however, I will deal with other matters argued.

MACQUARIE UNIVERSITY ACT

80 The Macquarie University Act established the University as a body corporate. Section 8 provided for a council of the University to be its governing authority and section 9 provided in detail for the constitution of such council.

81 Subsection 9 (9) reads:

“(9) Schedule 1 has effect in relation to the members and procedure of the Council.”

82 Schedule 1 to the Act headed “Provisions Relating to Members and Procedure of the Council”, contains as clause 5:

“5 Liability of Council members and others
No matter or thing done or omitted to be done by:

(a) the University , the Council or a member of the Council , or

(b) any person acting under the direction of the University or the Council ,
if the matter or thing was done or omitted to be done in good faith for the purpose of executing this or any other Act, subjects a member of the Council or a person so acting personally to any action, liability, claim or demand.”

83 Although I agree with Mr McClintock that, in this case, there is no evidence of lack of good faith by the Defendant, I am not persuaded that, in its context, clause 5 of Schedule 1 bears the wide interpretation for which he contends.

84 As I understand the submission, if correct, clause 5 (b) would encompass every employee of the University in whatever capacity engaged. That would seem a curious outcome for a clause in a schedule “in relation to the members and procedure of the Council”. Whatever is the full ambit of the clause I do not think it extends to the advice and conduct of an employed solicitor acting in her professional capacity. She was not, in my opinion, in any real sense acting “under the direction of the University or the Council.

ABSOLUTE PRIVILEGE

85 A further basis upon which it was contended on behalf of the Defendant that the alleged publications were covered by absolute privilege was that the publications were on an occasion properly incidental to the privilege created either by section 17A(1) of the Defamation Act or section 25 H(2) of the Ombudsman Act. Mr McClintock referred to Mann v O’Neil (1997) 191 CLR 204 and Markisic v Department of Community Services of NSW (No2) [2006] NSWCA 321

86 Section 17A(1) of the Ombudsman Act provides:

“There is a defence of absolute privilege for a publication to or by the Ombudsman, as Ombudsman, or to any officer of the Ombudsman, as such an officer.”

87 Mann v O’Neill concerned the question whether a complaint to the Commonwealth Attorney General by an unsuccessful litigant as to the mental capacity of the Magistrate who heard his case was protected by absolute privilege.

88 The claim for absolute privilege was rejected. In the course of their joint reasons Brennan CJ, Dawson J, Toohey J and Gaudron J made observations concerning the attachment of absolute privilege to judicial proceedings (omitting citation of authority):

“Quite apart from the novelty of the arguments advanced on behalf of Dr Mann, it is difficult to relate them to the copy letter forwarded to the Chief Magistrate or to the letter sent to the Minister for Justice. No request was made of either to take action with respect to the proceedings in Purdon & Associates Pty Ltd v Mann . And neither communication was directed to having the recipient take any step to bring about Mr O'Neill's removal from office. However, proceedings were apparently conducted in the Federal Court on the basis that those communications enjoy whatever privilege attaches to the letter to the Attorney-General and it is convenient to consider the appeal on the same basis.

It is well settled that absolute privilege attaches to all statements made in the course of judicial proceedings, whether made by parties, witnesses, legal representatives, members of the jury or by the judge. It extends to oral statements and to statements in originating process, in pleadings or in other documents produced in evidence or filed in the proceedings. It is said that it extends to any document published on an "occasion properly incidental [to judicial proceedings], and necessary for [them]".

It is also settled law that absolute privilege attaches to statements made in the course of quasi-judicial proceedings, i.e. proceedings of tribunals recognised by law and which act "in a manner similar to that in which a Court of justice acts". Various considerations are relevant to the question whether proceedings are quasi-judicial. However, the overriding consideration is "whether there will emerge from the proceedings a determination the truth and justice of which is a matter of public concern". The privilege extends to members of tribunals and to "advocates, litigants, and witnesses". And its scope is no less extensive in other respects than in the case of statements made in the course of judicial proceedings.

It is sometimes said that absolute privilege is founded on public policy considerations. It may be that, so far as concerns communications between officers of State in the course of their official duties, absolute privilege attaches by reason of broad considerations of public policy and convenience. However, a precise basis was identified for that aspect of the privilege in Gibbons v Duffell , it being said in that case that absolute privilege attaches because it is "indispensable to the effective performance of ... official functions."
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It may be that the various categories of absolute privilege are all properly to be seen as grounded in necessity, and not on broader grounds of public policy. Whether or not that is so, the general rule is that the extension of absolute privilege is "viewed with the most jealous suspicion, and resisted, unless its necessity is demonstrated". Certainly, absolute privilege should not be extended to statements which are said to be analogous to statements in judicial proceedings unless there is demonstrated some necessity of the kind that dictates that judicial proceedings are absolutely privileged. And it is that consideration that leads to the rejection of the argument that absolute privilege attaches to the letter to the Attorney-General because it is analogous to a notice of appeal.
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It may be that, so far as concerned the office of a special magistrate when Dr Mann's letters were written, the Attorney-General's role was not merely administrative and investigative. However, there is nothing to suggest that he was exercising anything other than an administrative role in receiving Dr Mann's letter. And the function which Dr Mann's letter invoked was essentially an investigative function. For the purpose of the law of defamation, the position of the Attorney-General in relation to a special magistrate, at least in regard to complaints of the kind involved in this case, is properly equated with that of a prosecuting authority charged with investigating and taking such action as is considered appropriate. Complaints to prosecuting authorities - "statements in aid of justice", as they are sometimes called - enjoy qualified privilege.

It is not necessary that statements to prosecuting authorities be absolutely privileged. The function of an authority charged with investigation and prosecution, whether in the courts or elsewhere, is not to ascertain the truth and justice of the matter in a final or binding way, but to decide whether the circumstances warrant the institution of proceedings to ascertain the truth of the matter. Absolute privilege is not required for the effective discharge of that function. Nor is it required for complaints inviting investigation of a special magistrate's ability to discharge his duties of office.”

89 Although McHugh J dissented, his Honour discussed absolute privilege in terms apparently approved by the Court of Appeal in Markisic at paragraph 84. At page 221 and following pages McHugh J said (omitting references to authorities cited):

“The defence of absolute privilege is available, in limited circumstances, in respect of communications made for the purpose or in the course of judicial, executive and parliamentary proceedings. It is available when its absence would hamper "the efficient functioning of our governmental institutions: legislative, executive and judicial". A person seeking to rely upon the defence has the onus of proving that it applies to the circumstances of the case. Further, that person must demonstrate that its application is necessary in such cases if the relevant governmental institution is to work effectively. As Gavan Duffy CJ, Rich and Dixon JJ stated in Gibbons v Duffell :

"The truth is that an indefeasible immunity for defamation is given only where upon clear grounds of public policy a remedy must be denied to private injury because complete freedom from suit appears indispensable to the effective performance of judicial, legislative or official functions. The presumption is against such a privilege and its extension is not favoured ( Royal Aquarium and Summer and Winter Garden Society Ltd v Parkinson ). Its application should end where its necessity ceases to be evident."


In Gibbons, this Court rejected the availability of the defence for a report made in the course of duty by a police inspector to his superior officer and which contained defamatory statements about the plaintiff.

In the few cases where the common law permits the defence in respect of communications made in the course of judicial or quasi-judicial proceedings, it is because the policy of the law requires the court to look beyond the immediate motives and interests of the parties to the wider interests of the proper functioning of the administration of justice. Thus, the evidence of witnesses in courts of justice is absolutely privileged although no doubt some witnesses give false evidence and may sometimes do so maliciously. But absolute privilege exists because the courts presume that it will encourage a greater number of witnesses to speak in a freer and informative manner - which clearly serves the interests of justice - than would be the case if they had only the protection of qualified privilege. As Pearce LJ stated in Addis v Crocker :

"absolute privilege is given to proceedings in courts of law in order that judges, advocates and witnesses may perform their respective parts free from a deterrent fear of actions for defamation. This privilege can create hardship for some persons in particular cases, but it is on balance an advantage to the community."

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By a long standing rule of the common law, absolute immunity from suit attaches to statements made for the purpose or in the course of the proceedings of any court or tribunal "recognised by law".
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Reported decisions show that a tribunal will be characterised as "recognised by law" for the purposes of this limb of the defence only where a clear case is established. Thus, in Royal Aquarium the English Court of Appeal denied absolute privilege to a meeting of the London County Council to consider applications for music and dancing licences. Lord Esher MR said that they were performing an administrative duty, not a judicial duty. In O'Connor v Waldron, the Privy Council held that absolute privilege did not attach to an inquiry held under the Combines Investigation Act . The Judicial Committee held that a commissioner appointed under the Act exercised administrative functions, notwithstanding that he had a duty to act judicially. Their Lordships said:

"It is only necessary to remember that the commissioner by the Act is empowered to enter premises and examine the books, papers and records of suspected persons to see how far his functions differ from those of a judge. His conclusion is expressed in a report; it determines no rights, nor the guilt or innocence of any one. It does not even initiate any proceedings, which have to be left to the ordinary criminal procedure."

In Hasselblad (GB) Ltd v Orbinson the English Court of Appeal held that absolute privilege did not extend to an investigation by the Commission of the European Communities under Art 89 of the EEC Treaty into possible breaches of Art 85 of the Treaty by the plaintiff corporation. The proceedings were administrative rather than judicial or quasi-judicial in nature. In Douglass v Lewis Mitchell J denied absolute privilege in respect of statements made before a South Australian Royal Commission regulated by statute. In Webber v Warren, the Supreme Court of New South Wales held that absolute privilege did not attach to an inquiry held by the captain of a merchant vessel into passenger complaints about the conduct of the defendant, the ship's surgeon.

At first instance Heerey J, and on appeal Carr J, effectively regarded the defence of absolute privilege as coinciding with the application of the rules of natural justice to non-curial tribunals. However, the expansion of those rules in the last half century does not demand or even permit similar expansions in the availability of the defence of absolute privilege. Many tribunals have obligations to act "judicially" and in accordance with the rules of natural justice. But that does not mean that their proceedings are analogous to the courts of justice, the benchmark for determining whether a tribunal is within the category of tribunals "recognised by law" for the purposes of the defence. "Recognised by law" remains a very high standard. A body like the London County Council is nowadays required to act judicially and in accordance with the rules of natural justice in determining applications for licences. But it is impossible to suppose that the decision in Royal Aquarium on absolute privilege would be reversed if it came before the English Court of Appeal today.

However, it should not be overlooked that the suggested equation works two ways. Given its drastic effect in foreclosing all means of redress for defamatory remarks made maliciously, the potential widespread availability of the defence of absolute privilege might itself provide a disincentive to applying the rules of natural justice to new forms of tribunals.”

90 I am not persuaded that the passages from Mann v O’Neil, which I have quoted, warrant the conclusion sought by Mr McClintock. Although in its investigation of Ms Johnston’s complaint, the University was no doubt required to comply with the norms of natural justice, it was in no sense a body “recognised by law” of the kind referred to by McHugh J. It seems to me that in the circumstances of this case, the common law does no more than provide the Defendant with qualified privilege. In order that the alleged publications attract absolute privilege the Defendant must, in my view, rely solely upon the statutory privilege conferred by section 25 H of the Ombudsman Act.

THE PROCEEDINGS CONSITUTE AN ABUSE OF PROCESS

91 Mr McClintock submitted that in the event the University subpoena is set aside, the proceedings themselves must necessarily thereby constitute an abuse of process, at least in respect of the second and third publications, which, on their face, form but part of more extensive documents.

92 It was submitted that not only the Plaintiff but the Defendant also would be prevented from presenting her case if, in effect, the University’s claim of legal professional privilege were upheld. He referred to observations of Mason CJ in Jago v District Court of NSW (1989) 168 CLR 23 in relation to the inherent jurisdiction of a court to control and supervise proceedings so as to prevent injustice. Mr McClintock submitted that the proceedings should be permanently stayed in relation to the second and third publications.

93 Mr Howell, on the other hand, contended that material was available to the Plaintiff from which inferences could be drawn sufficient to establish a case in respect of the second and third publications. He referred to Kaplan v Go Daddy Group Inc [2006] NSWSC 250 where Simpson J in somewhat analogous circumstances refused to strike out an Amended Statement of Claim. Although the absence of relevant documents in her hands may prove insuperable to the Plaintiff, it is not the situation, I think, where it would be necessary to grant a permanent stay in order to avoid injustice. The Plaintiff has the onus of proving her case, if she is unable to do so, the proceedings would fail. It is not apparent to me that the evidentiary problems faced by her would cause irremediable injustice to the Defendant. I would decline to grant the stay sought.

CONCLUSION

94 For the reasons given, I am satisfied that the Defendant is entitled to the relief she seeks on both motions. In my opinion, the University subpoena should be set aside as an abuse of the Court’s process and the proceedings themselves should be dismissed on the basis that they are bound to fail within the principles established by General Steel.

95 I make these orders:

1. Pursuant to Rule 33.4 of the Uniform Civil Procedure Rules, I set aside the subpoena dated 17 February 2009 addressed to Macquarie University.

2. Pursuant to Rule 13.4 of the Uniform Civil Procedure Rules, I dismiss the proceedings.

3. I order the Plaintiff to pay the costs of the motions and of the proceedings.

4. Exhibits may be returned.