Kreutzer v University of Sydney - [2015] NSWCATAD 270

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Kreutzer v University of Sydney [2015] NSWCATAD 270
Hearing dates: 21 September 2015
Date of orders: 23 December 2015
Decision date: 23 December 2015
Jurisdiction: Administrative and Equal Opportunity Division
Before: Prof G Walker - Senior Member
Decision:
Decision under review affirmed.

Catchwords: GOVERNMENT INFORMATION PUBLIC ACCESS –client privilege –in-house lawyers –independence -communications among non-lawyers –improper purpose.
Legislation Cited: Administrative Decisions Review Act 1997; Evidence Act 1995; Government Information (Public Access) Act 2009; Higher Education Support Act 2003 (Cth).
Cases Cited: Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501;
AQJ v University of New South Wales [2013] NSWADT 306;
Esso Australia Resources Ltd v FCT (1999) 201 CLR 49;
Derby & Co Ltd v Weldon (No. 7) [1990] 3 All ER 161;
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409;
Fenwick v Wambo Coal Pty Ltd (No. 2) [2011] NSWSC 358;
Finers v Miro (1991) 1 WLR 35;
Grant v Downs (1970) 135 CLR 674;
Kang v Kwan [2001] NSWSC 698;
Nature Conservation Council of New South Wales v Department of Trade and Investment [2012] NSWADT 195;
Raven v University of Sydney [2015] NSWCATAD 104;
SL v University of Sydney [2011] NSWADT 65;
Seven National News Ltd v News Ltd (2005) 2 to 5 ALR 672;
Rich v Harrington (2007) 245 ALR 106;
Telstra Corporation Ltd v Minister for Communications (No. 2) [2007] FCA 145.
Category: Principal judgment
Parties: Mr Philipp Kreutzer (Applicant)
University of Sydney (Respondent)
Representation:
Counsel:
B Tronson (respondent)
Solicitors:
Heesom Legal (Respondent)
P Kreutzer (Applicant in person)

File Number(s): 1510058
Publication restriction: Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013, para 91 is not for publication.

Judgment

On 3 February 2015, the applicant Mr Philipp Kreutzer filed with this tribunal an application for review of a decision by the University of Sydney dated 5 December 2014 to refuse access to certain information held by the university. The applicant had lodged an access application under the Government Information (Public Access) Act 2009 (GIPA Act) seeking the following (abbreviating the document descriptions somewhat):

A copy of an agreement between the university and Southern Cross University (SCU) entered into in or about 28 April 2010 for facilitated entry to the University medical program for certain SCU students of rural origin.

A copy of the agreement in which that agreement was terminated on or about 26 October 2012.

Any additional information relating to the provision made by the two universities for SCU students enrolled in the Bachelor of Clinical Sciences degree course at the time the above agreement was terminated.

Copies of all correspondence between the Vice-Chancellor of the University of Sydney, the Dean of the University of Sydney Medical School (SMS), the SMS deputy dean and executive officer from 14 February 2013 to date relating to Annabelle Kreutzer (the applicant’s daughter).

Copies of all correspondence between university officers and SCU in relation to Annabelle Kreutzer.

In relation to all offers made for admission to the 2014 SMS program, the number of offers made to rural applicants, the number of such applicants subjected to random audit and the number of audited applicants who were found not to be of rural origin.

A copy of an agreement between the university and CSU creating a pathway for facilitated entry to the SMS program earlier than, but otherwise similar to, the agreement referred to in (1) above.

A copy of the agreement under which the agreement referred to in (7) above was terminated.

Any additional information regarding the provision made by the university and CSU for students enrolled in the appropriate degree at CSU to be eligible for consideration under the Pathway agreement but who had not graduated at the time the agreement in (7) above was terminated.

The university’s decision on that application dated 9 April 2014 released some of the information requested but withheld part of it. The applicant then applied to the Information and Privacy Commission for review of that decision. The commission’s report dated 14 November 2014 concluded that client legal privilege (also called legal professional privilege) did attach to some of the records withheld, but for some of them it was not apparent on the face of the information available that the privilege applied. It also found that the university’s decisions based on certain considerations in the table to s 14 of the GIPA Act were not justified and recommended that the university make a new decision by way of an internal review.
The university duly made a review decision on 5 December 2014, which concluded that the public interest lay in refusing access to information concerning rural applicants who received admission offers in 2014 and were audited. It also found that the public interest lay in refusing access to information that it considered to be legally privileged and decided that it would not be appropriate to waive that privilege, having regard to the nature of the communications between the applicant and the university and the potential for litigation.
At the commencement of the first day of the hearing on 21 September 2015, the respondent indicated that as a result of a policy change the university proposed to rely solely on client legal privilege in relation to certain information as set out in the updated schedule of documents, and withdrew its refusal to grant access to certain other documents on the basis of an overriding public interest.

Applicable legislation

Schedule 1 of the GIPA Act is headed “Information for which there is a conclusive presumption of an overriding public interest against disclosure”. Clause 5 of that schedule reads as follows:

Legal professional privilege
(1) It is to be conclusively presumed that there is an overriding public interest against disclosure of information that would be privileged from production in legal proceedings on the ground of client legal privilege (legal professional privilege), unless the person in whose favour the privilege exists has waived the privilege.
(2) If an access application is made to an agency in whose favour legal professional privilege exists in all or some of the government information to which access is sought, the agency is required to consider whether it would be appropriate for the agency to waive that privilege before the agency refuses to provide access to government information on the basis of this clause.
(3) A decision that an agency makes under subclause (2) is not a reviewable decision under Part 5.

Legal professional privilege or client legal privilege carries the meaning given to it by the Evidence Act 1995. The material provisions of that Act for present purposes are the following:

117   Definitions
(1) In this Division:
client includes the following:
(a)  a person or body who engages a lawyer to provide legal services or who employs a lawyer (including under a contract of service),
(b)  an employee or agent of a client,
(c)  an employer of a lawyer if the employer is:
(i)  the Commonwealth or a State or Territory, or
(ii)  a body established by a law of the Commonwealth or a State or Territory,
(d)  if, under a law of a State or Territory relating to persons of unsound mind, a manager, committee or person (however described) is for the time being acting in respect of the person, estate or property of a client—a manager, committee or person so acting,
(e)  if a client has died—a personal representative of the client,
(f)  a successor to the rights and obligations of a client, being rights and obligations in respect of which a confidential communication was made.
confidential communication means a communication made in such circumstances that, when it was made:
(a)  the person who made it, or
(b)  the person to whom it was made,
was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law.
confidential document means a document prepared in such circumstances that, when it was prepared:
(a)  the person who prepared it, or
(b)  the person for whom it was prepared,
was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law.
lawyer means an Australian lawyer, a foreign lawyer, or an employee or agent of either of them.
party includes the following:
(a)  an employee or agent of a party,
(b)  if, under a law of a State or Territory relating to persons of unsound mind, a manager, committee or person (however described) is for the time being acting in respect of the person, estate or property of a party—a manager, committee or person so acting,
(c)  if a party has died—a personal representative of the party,
(d)  a successor to the rights and obligations of a party, being rights and obligations in respect of which a confidential communication was made.
(2) A reference in this Division to the commission of an act includes a reference to a failure to act.
118   Legal advice
Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of:
(a)  a confidential communication made between the client and a lawyer, or
(b)  a confidential communication made between 2 or more lawyers acting for the client, or
(c)  the contents of a confidential document (whether delivered or not) prepared by the client, lawyer or another person,
for the dominant purpose of the lawyer, or one or more of the lawyers, providing legal advice to the client.
119   Litigation
Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of:
(a)  a confidential communication between the client and another person, or between a lawyer acting for the client and another person, that was made, or
(b)  the contents of a confidential document (whether delivered or not) that was prepared,
for the dominant purpose of the client being provided with professional legal services relating to an Australian or overseas proceeding (including the proceeding before the court), or an anticipated or pending Australian or overseas proceeding, in which the client is or may be, or was or might have been, a party.

Also relevant is s 125 of the Evidence Act:

125   Loss of client legal privilege: misconduct
(1) This Division does not prevent the adducing of evidence of:
(a)  a communication made or the contents of a document prepared by a client or lawyer (or both), or a party who is not represented in the proceeding by a lawyer, in furtherance of the commission of a fraud or an offence or the commission of an act that renders a person liable to a civil penalty, or
(b)  a communication or the contents of a document that the client or lawyer (or both), or the party, knew or ought reasonably to have known was made or prepared in furtherance of a deliberate abuse of a power.
(2) For the purposes of this section, if the commission of the fraud, offence or act, or the abuse of power, is a fact in issue and there are reasonable grounds for finding that:
(a)  the fraud, offence or act, or the abuse of power, was committed, and
(b)  a communication was made or document prepared in furtherance of the commission of the fraud, offence or act or the abuse of power,
the court may find that the communication was so made or the document so prepared.
(3) In this section:
power means a power conferred by or under an Australian law.

The issue in this case is thus whether, by reason of s 118 or s 119 or both, of the Evidence Act, the documents listed as withheld in the updated schedule of documents, or some or any of them, are the subject of an overriding public interest against disclosure within the meaning of cl 5 of schedule 1 of the GIPA Act and, if so, whether it client legal privilege has been lost by reason of s 125 of the Act.

Respondent’s evidence

The respondent called as a witness Ms Olivia Perks, the university’s director of legal services, who adopted her affidavit of 31 March 2015 (exhibit R1), in which she deposed inter alia that since commencing employment at the university in 2006 she has held a current unrestricted New South Wales practising certificate. She is based within the Office of General Counsel (OGC), which is an independent professional service unit of the university headed by the general counsel, Mr Richard Fisher AM.
On the basis of her responsibilities and experience within the office, she is aware that lawyers within the OGC are officers of the court and expected to comply with the ethical and professional standards of conduct required of the profession, including the obligation to provide independent, honest and professional legal advice to the university. Ms Kristen Migliorini is an OGC employee and holds a current practising certificate. Ms Sarah Heesom is a sole practitioner with a current practising certificate and is engaged by OGC as a consultant solicitor from time to time.
On 28 April 2010, the university and SCU entered into an agreement to establish the “Rural Pathways Program” under which up to 10 places in the university’s medicine and dentistry programs were set aside solely for SCU graduates who met specific eligibility requirements. The deponent was aware that in 2012 Ms Annabelle Kreutzer (who for the sake of convenience will be referred to in these reasons as Annabelle) discontinued her candidature in the Bachelor of Biomedical Science couse at Griffith University and enrolled in a Bachelor of Clinical Science program at SCU. On 9 November 2012, the university and SCU mutually agreed to terminate the agreement. On 14 February 2013, the applicant wrote to Mr Tom Rubin, then executive officer at SMS, stating that the agreement’s cancellation had left his daughter with “a number of problems” and that as a result she would seek credit for her studies at Griffith in order to complete the degree at SCU at the end of 2013. The applicant asked the university to give special consideration to Annabelle in the 2014 medicine intake because she would not have sat for the Graduate Medical School Admission Test (GAMSAT, a standard test applied by medical schools) at the time applications closed.
On 19 March 2013, Annabelle wrote to Mr Rubin informing him that SCU had given her advanced standing in enough Griffith subjects to enable her to graduate at the end of 2013 with the Bachelor of Clinical Science and asked If Mr Rubin had been able to consider her situation, particularly in relation to GAMSAT. Mr Rubin responded on 21 March confirming that the agreement had been terminated and stating that the university had no continuing obligations under it. He said SMS was not able to consider her application without her having satisfactorily performed in the GAMSAT test. The applicant replied to Mr Rubin on 21 March 2013 reiterating the disadvantage suffered by Annabelle and stating that she had intended to sit for the GAMSAT test in 2014 before graduating. By the time she had discovered that the agreement had been terminated and that she could graduate in 2013, it was too late to register for the GAMSAT.
Mr Rubin replied to Annabelle on 21 March 2013 agreeing on behalf of SMS to accept the UK GAMSAT, subject to the other requirements set out in his email, including a minimum GPA of 4.5 at the time of admission, a minimum overall score in GAMSAT and a minimum score of 50 in each section of GAMSAT. He further pointed out that she would still be required to meet the minimum GAMSAT score required for rural origin applicants. If she did achieve that minimum score, however, her GAMSAT results and interview would be added to form a total score, and if she were ranked sufficiently highly on the ranking list for rural applicants, she would be offered a place in the 2014 course. He added, “As you would appreciate, if SMS were to allow other applicants an opportunity to submit GAMSAT results so late in the application and assessment process it would be extremely difficult for SMS to manage its admissions. Therefore the university requests that you sign the attached undertaking as a precondition to the agreement set out in this email…. The university notes that you have asserted that you have suffered detriment…. The university does not share your view. However, the university trusts that you would agree that the proposals set out in this email would alleviate any detriment that you assert”.
On 3 June 2013, Annabelle gave her signed agreement to the proposal in Mr Rubin’s email, including a confidentiality agreement. She attended an interview in accordance with normal practice and submitted her GAMSAT results on 19 November 2013. On 20 November, the dean of medicine, Professor Bruce Robinson, sent Annabelle a letter informing her that although she had been assessed as eligible for admission to the medical program, her total score did not place her high enough on the ranking list for rural applicants to be offered a first round place in it. She was ranked 119 out of 142 rural applicants, and the final offer in the first round was made to rural applicant number 95. There followed an exchange of correspondence in which the applicant inter alia objected to the ranking of rural applicants for admission to the MBBS program. He wrote to the dean on 7 January 2014 stating that it was “clearly not appropriate to treat Annabelle’s application as if she were a standard rural applicant, without regard to the agreement”.
On 8 January 2014, Professor Robinson wrote to the applicant stating:

Ms Kreutzer signed an agreement with the Medical School in June 2013 to resolve her concerns about the former Pathways agreement between Southern Cross University and the University of Sydney. In accordance with that confidential agreement, the University agreed to accept the UK GAMSAT as satisfactory admission test for the purposes of Ms Kreutzer’s application, and to give her an interview pending receipt of her results. In the ordinary event, Ms Kreutzer would have been required to provide GAMSAT results at the time of her application, and her eligibility for an interview would have been dependent on them.
Ms Kreutzer agreed that, if she achieved the minimum GAMSAT score, her GAMSAT results and interview results would be combined to give her a total score and ranking relative to other rural applicants. Ms Kreutzer also agreed that if she was ranked sufficiently highly on the ranking list for rural applicants, she would be offered a place in the course.

Professor Robinson pointed out that Annabelle’s final score did not place her high enough on the ranking list for rural applicants to be offered a first-round place in the program. On 21 January 2014, the applicant wrote to Professor Robinson stating that the agreement signed by Annabelle on 3 June 2013 did not operate to effect a release or waiver of her rights under the agreement. He said she was “already entitled in 2013 to be treated as a rural origin student, and would have applied as such 12 months earlier had she graduated from Griffith and not been induced to change courses in order to meet the Pathway criteria”. He added, “It is within Sydney University’s ability to resolve this issue fairly before it becomes the subject of litigation by offering Annabelle a place as an eligible Pathway student, as has been done for other Pathway applicants”. The deponent stated that that assertion was incorrect, in that no SCU student was admitted to the MBBS under the agreement.
Ms Perks deposed that since February 2013, the university has been engaged in communications with the applicant concerning Annabelle’s claim. On 18 March 2015, the university received a letter from the applicant claiming $375,000 in damages. Ms Migliorini, Ms Heesom and she have received requests from university staff for legal advice about legal problems arising from the agreement, Annabelle’s 2013 application and the applicant’s threats of litigation and claim for damages. They had produced legal advice on a privileged and confidential basis in response to those requests. That advice has been provided only to SMS staff who were responsible for providing policy advice, making decisions on the matters to which the legal advice related, or implementing the decisions that were made in response to the advice.

In order to obtain advice, it was necessary for a limited number of SMS staff to consult one another by email about the instructions to be given to the OGC. It was also necessary for them to discuss the practical effect of the legal advice received. To the best of her knowledge and belief, the email conversations between senior SMS staff took place in anticipation of the litigation threatened by the applicant. A number of those conversations were copied to Ms Migliorini, Ms Heesom and herself.
Under the SMS special admission scheme for rural applicants, rural applicants for admission to the MBBS required a minimum GPA of 4.5 to be considered eligible for admission. Non-rural applicants required a minimum GPA in their undergraduate degree of 5. In 2014 the university introduced a new Doctor of Medicine (MD) program to replace the MBBS, which no longer exists for commencing students.
At the hearing the witness gave further evidence in chief, some of which was taken in closed session pursuant to an order under s 107 of the GIPA Act. The most relevant parts were repeated in open session. Ms Perks said there were from time to time threats of litigation in connection with admission matters. Three factors had been shown by experience to prefigure intimations of legal action;

where an applicant had been refused admission and claimed to have suffered a detriment thereby;

when the unsuccessful applicant’s parents were involved in the correspondence;

when a family member was a lawyer; the office made a practice of conducting searches to ascertain whether a lawyer was involved.

Most disputes concerned admission to medicine and covered a wide range of issues; they were much rarer in other faculties. That was partly because medicine applicants tended to be competitive types, but also because the selection process involves discretionary elements. This case was thought likely to lead to a legal claim because the correspondence mentioned a detriment, and that usually indicated that the matter was being set up for litigation.
In cross-examination Ms Perks said she had been at Sydney when the Pathway and termination agreements had been entered into. Not all university agreements were necessarily drafted by the GCO. In response to a number of questions about the interpretation of the Pathway agreement, the witness explained that the reference to “guaranteed” places did not affect the requirement to meet the admission criteria, nor did the recital about rural applicants being “assured of entry”, as admission was still subject to the admission requirements. The Pathway scheme operated only in the case of applicants who were SCU graduates. The termination agreement was less formal than the pathway agreement and was not witnessed, as it was not required to be. The Academic Board requirements about the creation, variation and deletion of courses (exhibit A1) were not relevant to the Pathway agreement. Nor were the guidelines for inter-institutional agreements (exhibit A2), as they related to such matters as student exchanges.
Ms Perks was not aware of attempts made to comply with the provision in the termination agreement that endeavours should be made to inform affected students. She agreed that she had not pointed to any single threat in her affidavit, but said experience showed the kinds of points that can lead to litigation, and the applicant’s list of detriments in his email of 14 February 2013 to Mr Rubin was one such. She was not aware of whether the university had made any representations to Annabelle, as she did not have ongoing involvement in the matter, which was mainly Ms Migliorini’s responsibility.
The applicant put it to the witness that his letter of 21 March 2013 (exhibit A3, annexure F) did not suggest that the university was under any obligation to Annabelle. She replied that it was not unusual in that respect, but the letter was seeking a resolution, and experience showed that such suggestions could lead to litigation if no resolution was arrived at. That often happened in relation to medical school admissions. She did not think that the undertaking Annabelle was asked to sign was incorrectly treated as a complete resolution and release, or that it would have been drafted differently if that had been the intention. Although Annabelle was told that her total score was too low for her to receive a first-round offer, there could be later rounds up until January. The fact that the letter was written the day after the GAMSAT results had been supplied did not mean it had been pre-written. It could have been done quickly.
Mr Kreutzer then referred the witness to annexure 5 to her affidavit, his letter to Ms Heesom dated 17 March 2015 setting out a detailed analysis of possible damages payable by the university totalling $375,000. He put it to the witness that it was the first reference to compensation, and is was written two years and one month after the correspondence had been initiated. She replied that she was not aware of any earlier compensation claims.
The applicant then referred the witness to a number of the recitals in the draft deed of release and confidentiality (exhibit A3, annexure O), suggesting that they were inaccurate and improper. She replied that she did not regard them as misstatements and in any event it was a draft and the recitals would have been settled after negotiations between the parties. She agreed that it was prepared before the applicant had first mentioned compensation, but said he had already stated that Annabelle had suffered a detriment.

Applicant’s evidence

In oral evidence at the hearing, the applicant adopted his affidavit sworn on 20 April 2015 in which he stated inter alia that the Pathway program was promoted in 2010 by both universities in the press, on their websites and in their newsletters. In the second half of 2011, Annabelle saw on the SMS website a reference to the Pathway program, which greatly appealed to her. She attended an information day at SCU and enquired by telephone about the program at both universities. The respondent’s website stated that the agreement would be reviewed in 2015. That meant that in order to complete the requisite three-year clinical science degree at SCU before the review, Annabelle would need to discontinue her current studies at Griffith and enrol at SCU for the 2012 academic year. That had the effect of extending her undergraduate studies by two years, as she had only one year left of her Griffith degree. None of the material produced by either university promoting the program warned that it could be terminated prematurely.
In February 2013, having successfully completed the first year of the SCU degree, Annabelle discovered that all reference to the program had been deleted from the websites of both universities. On telephoning SMS she was told that the program was no longer running. Following an exchange of communications discussing possible solutions to the problem, Mr Rubin on 21 March 2013 emailed the applicant stating that the Rural Pathways agreement was at an end and the respondent had no continuing obligations under it. The respondent could not consider Annabelle’s application as she did not have a GAMSAT result. In an email of 27 March 2013, Mr Rubin said that the respondent would agree to Annabelle’s sitting for the UK GAMSAT on condition that she sign an undertaking not to disclose the fact that she was permitted to do a late GAMSAT, as disclosure would create difficulties for the university with other applicants. Annabelle registered for the September 2013 GAMSAT but did not sign the undertaking requested as it seemed to be unnecessarily onerous. On telephoning SMS in late May 2013, she was told that unless she signed and returned the undertaking, she could not attend the required interview and her application would be cancelled. She therefore signed the undertaking.
On 19 November 2013 Annabelle received and forwarded to the respondent her GAMSAT results. On the following day, she received a letter from the dean of medicine stating that her total score did not place her high enough in the ranking list for rural applicants to be offered a first-round place in the program (exhibit A3, attachment H). Following receipt of that letter, Mr Kreutzer wrote to the vice-chancellor of SCU, the dean of SMS and Mr John Dowd, then chancellor of SCU, explaining Annabelle’s predicament. All of the emails by the applicant or Annabelle between 27 March 2013 and 9 January 2014 to Mr Rubin or other staff of the respondent or SCU revealed their desire to find a solution to the problem created by the respondent’s cancelling the Pathway agreement and alleging it had no ongoing obligation to Annabelle. None of the emails contained any reference, explicit or implied, to litigation or compensation. His letter of 21 January 2014 to Professor Robinson, dean of SMS, amounted to a detailed restatement of Annabelle’s circumstances followed by a statement of willingness to meet and discuss the matter, coupled with an expression of hope that the matter could be resolved amicably. The request for a meeting was not responded to. That letter was the first communication in which he had used the word “litigation”. He noted that all of the emails or documents in relation to which the respondent claims client privilege pre-date his letter of 21 January 2014.
On 17 February 2014 he received an email from Mr Fisher, general counsel, attaching a draft deed of release and confidentiality agreement (exhibit A3, attachment O). His subsequent correspondence with Mr Fisher concerning various matters in relation to the draft deed elicited no willingness to compromise, and finally Mr Fisher wrote “Time does not permit me this afternoon to deal with the issues you have raised”.
From February 2013 until January 2014 he had believed that once the problem created by the termination of the Pathway agreement was drawn to the respondent’s attention, it would honour the undertakings made to students under the agreement. During January 2014 he concluded that the respondent had not been dealing on a bona fide basis with Annabelle’s request. He therefore made GIPA Act applications to SCU and the respondent. He noted that the termination agreement removed the parties’ obligation to assist students affected by any termination to complete their courses of study and that the termination agreement itself obliged the parties to take steps to inform present students and prospective applicants of the termination. Annabelle, however, received no notification from either university, neither of which appeared to have publicized the fact or in any other way communicated with students.
His concerns about the respondent’s bona fides were further confirmed by the fact that its GIPA response showed that the respondent had from the first contact treated the matter as one where every internal communication was predominantly aimed at obtaining or receiving legal advice. Staff offered no explanation as to why that would be so. Consequently the applicant applied to the New South Wales Ombudsman in July 2014 for the respondent’s conduct to be investigated. In a letter dated 12 March 2015, the Ombudsman stated that the decision to terminate the agreement appeared to have arisen “from concerns being identified by the University of Sydney about whether the agreement was fully compliant with section 19.35 of the Higher Education Support Act 2003 (HESA). These same concerns led to the decision to remove the obligation to comply with clause 7.19”. That was the first indication concerning the reason the agreement had been terminated.
The Ombudsman officer investigating the matter indicated on the telephone that he wished to discuss compensation with the respondent and SCU. The applicant had not raised the matter of compensation with him or with the university before that telephone conversation. He invited the applicant to send indicative figures to him, which he did. In a letter dated 12 March 2013, the investigating officer, Mr Conaty, informed him that “Both the [Respondent] and Southern Cross University have indicated they will consider a claim for compensation. It is now for you to put a claim directly to the university or universities”. On 17 March 2015 he wrote and forwarded the letter referred to in para 43 of Ms Perks’s affidavit, also sending it to SCU. At the date of swearing his affidavit, he had still not received a response to that letter from either university, but noted that a copy of it was annexed to Ms Perks’s affidavit of 31 March 2015.
Mr Kreutzer believed that the University of Sydney had breached s 19.30 of HESA in failing to treat Annabelle fairly as described throughout his affidavit. The respondent had breached s 19.35 of HESA in that the offers made to her by the respondent were not available equally to all other students in the rural origin class. The respondent had also breached s 19.45 of HESA by not having a proper grievance and review procedure.
The applicant also swore an affidavit dated 15 July 2015 (part exhibit A5) stating that he searched the archives kept by the publishers of the Northern Star newspaper, which circulates in the Northern Rivers region of New South Wales, centred on Lismore. He located an article dealing with the Rural Pathways agreement between SCU and the respondent signed by the vice-chancellors of the two universities, a copy of which he attached to his affidavit.
The applicant also tendered an affidavit by Annabelle dated 15 July 2015 (part exhibit A5) in which she stated that in late 2011 she enrolled in the clinical science program at SCU in the circumstances and for the reasons set out in the applicant’s affidavit. She had become aware in early 2013 that the Pathways program established between SCU and Sydney had been cancelled. She subsequently learned that the agreement establishing the Pathway program had been terminated by an agreement between the two universities dated 9 November 2012.
During her time as a student at SCU (in the academic years 2012 and 2013), the university contacted her in relation to academic and administrative matters by email to the email address allocated to her at the time she enrolled. At no time during 2012 or 2013 did she receive any notification from either university to the effect that the Pathways agreement was about to be, or had been, terminated. She remained unaware of the termination until February 2013, when she noticed that all reference to the program had been deleted from the websites of both SCU and Sydney. She immediately discussed that development with her parents and as a result the telephone calls and emails described in the applicant’s affidavit took place.
Their expectation and hope was that once alerted to her circumstances, both universities would take steps to deal with the problem. They gave no thought to commencing litigation or claiming compensation, as it did not occur to them that either university would take a position that amounted to excluding her, regardless of her circumstances. As they expected that the universities would act reasonably, making threats and claims would almost certainly have been counter-productive.

Applicant’s submissions

The applicant filed written submissions in which he argued inter alia that it was important to note that the Rural Pathways Program for SCU students was entirely separate from the facilitated rural entry scheme that had been operating for many years and was available to rural students from all universities. The primary difference was that the Pathways program offered guaranteed entry for up to 10 SCU students who met the relevant criteria. Annabelle met all the criteria. She was at all times also eligible to seek entry under the facilitated rural entry scheme, having met the criteria for that scheme also. She decided, however, to pursue the Pathway option and for that purpose discontinued her studies at Griffith and enrolled in the requisite Clinical Science degree at SCU in January 2012.
Both universities displayed gross maladministration and a lack of good faith and procedural fairness when they cancelled the Pathways program in the manner described in the applicant’s evidence, as the cancelling was carried out secretly and students were not informed of the termination. Neither university complied with cl 2.3 of the termination agreement under which they were required to use reasonable endeavours to inform students and any prospective applicants that the Pathways program had been terminated. The SMS executive officer stated that the program was “at an end and the University had no further obligations under it”, and would provide no other details or reasons. No provision was made for students currently in the program.
Charles Sturt University (CSU) had an identical Pathways agreement with the respondent, which expired six months before the SCU agreement was terminated. The respondent declined to renew it or, initially, to make provision for existing CSU students, but after vigorous representations from CSU allowed two CSU students who were in their final year to transfer into its medical program. The respondent’s general counsel, Mr Fisher, refused to discuss this, saying he would not respond to “unsubstantiated allegations”.
Annabelle changed her position in order to enter the Pathways program. In good faith she undertook the SCU course and the subjects specified by the universities and met all the criteria under the agreement for guaranteed transfer into the Sydney University medical program. The respondent should have offered Annabelle a position in the medical program in November 2013 for study in 2014, but had refused to consider her application as a Pathway student, saying the program was at an end and there were no ongoing obligations under it. It had offered her no fair and reasonable alternative to her rights as a Pathway student. It insisted that if she wished to be considered for admission she would have to satisfy further extensive criteria, including a second interview by a panel and writing an essay. The criteria were not transparent and were at the sole discretion of the medical faculty as to whether they had been met or not. This amounted to her being required to qualify all over again. The university’s treatment infringed several HESA provisions, including ss 19.30 and 19.45.
A party asserting a claim for client privilege bears the onus of proving the facts giving rise to the claim: AWB v Cole (No 5) (2006) 155 FCR 30, [44]. Litigation privilege applies only where litigation is reasonably anticipated, that is, there is “a real possibility of litigation as distinct from a mere possibility, but it does not have to be more likely than not” (Mitsubishi Electric Australia Pty Ltd v Victorian Work Cover Authority (2002) 4 VR 322, [19]). The respondent had no reasonable basis to anticipate litigation at any time earlier than 21 January 2014.
Without further particulars of the nature of the communications, it was impossible to make a submission on particular documents. The respondent’s evidence, however, did not deal with the substance of the claim of privilege by identifying the circumstances in which the relevant communication took place and the topics to which the instructions or advice were directed. Ms Perks’s affidavit refers to conversations taking place “in anticipation of the litigation threatened by the Applicant”, but the applicant did not use the word “litigation” until his letter of 21 January 2014. All the communications subject to the disputed claim for privilege pre-date the 21 January 2014 letter. No claim for compensation was ever initiated either by Annabelle or the applicant. The applicant’s aim during 2013 had consistently been to have the respondent treat Annabelle fairly, and during that time litigation or claims for compensation would have served no purpose and threatening them would in all probability have been counter-productive.

The applicant submitted that the emails numbered 2, 10, 13 and 14 in part 4 of the updated schedule of documents could not support a claim for client privilege because they are communications between staff who are not lawyers in the employ of the respondent, and document 3 in part 5 also may not, as the role of Professor L Barclay is not described.
Communications between a client and its in-house lawyers can attract privilege if the lawyer is independent. The general counsel of the respondent is Mr Richard Fisher, who is an adjunct professor within the respondent’s law faculty. That raises the question of whether his advice or advice from the legal staff he oversees is at risk of being compromised by lack of independence.
No privilege will arise in respect of a communication made for a purpose that is improper, whether or not the legal adviser knows of that purpose. The improper purpose principle covers all forms of fraud and dishonesty, including trickery and sham contrivances. For that exception to apply, there must be more than a mere assertion or allegation of fraud or impropriety: AWB Ltd v Cole at [217]. There must be something to “give colour to the charge” and some prima facie evidence that it has some foundation in fact, but the purpose need not be proved on the balance of probabilities: ibid.
The applicant submitted that the respondent feared that the Pathway agreement had breached HESA s 19.35, as Pathway students were to be given up to 10 places taken from the rural origin scheme that was funded by the Commonwealth. The Pathway was a program offering benefits to selected students from SCU and was not open to the whole rural class, and therefore could possibly jeopardize funding arrangements with the Commonwealth Government. All the respondent’s subsequent unfair behaviour towards Annabelle stemmed from its need to extinguish her claim as a Pathway student, based on the potential breach of the legislation that crystallized upon her taking up a funded place in the medical course. The respondent put its concerns over funding before its obligations to treat students fairly, which was also a breach of HESA, s 19.30. The respondent’s actions thus give rise to a prima facie case that it had improper purposes. The applicant’s written submissions then list in detail 18 instances of conduct in relation to Annabelle’s candidacy which he submits demonstrate improper purpose.
One of the listed instances relates to the legal approach taken to Annabelle’s position:

Adopting from the outset a litigious approach and treating Annabelle as a potential plaintiff rather than as a student adversely affected by a University decision and in need of assistance. In this regard the University has not dealt with her complaint in an acceptable manner and their actions lack integrity. It appears that from the very first contact Annabelle and I had with Mr Rubin, the University began obtaining advice as to how to defeat any claim she may have…. I believe that this entire course of conduct demonstrates the respondent’s improper purposes relating to the subject emails and information”.

The applicant on 21 June 2015 served a second set of written submissions headed “Applicant’s Preliminary Comments on Respondent’s Reply”, which focused on certain new and more detailed descriptions for 12 of the documents (consisting for the most part of the email chains) originally described in its schedule of documents. These descriptions expanded on the descriptions in the original schedule by listing more of the emails in the respective chains, and not necessarily mentioning the one originally adopted as a title or description for that chain. The respondent explained any apparent discrepancies as resulting from the selection of an email that more clearly embodied legal advice. While that does not appear to account for quite all the anomalies highlighted by the applicant, there is no reason to think that any documents have been omitted or materially misdescribed. Little is to be gained from pursuing that line of inquiry.
On the adjourned hearing date of 7 December, the applicant served a further set of detailed written submissions which, after outlining the background of the matter, submitted inter alia that the applicant and Annabelle, on any reading of the correspondence, were seeking only assistance for her to complete the criteria necessary to be able to transfer into the 2014 medical school intake. He contrasted the respondent’s approach to that of SCU (the other party to the Pathway agreement), which took the position that it was incumbent on both universities to recognize that Annabelle had made certain decisions in good faith, given the Pathway agreement in place at the time. The SCU vice- chancellor encouraged the respondent to give special consideration to her application. He also pointed out that when the Sydney University agreement with Scots College was terminated, undertakings to the students were honoured. The Pathway agreement foresaw the possibility of early termination and made provision for affected students to complete their course of study, but the termination agreement removed that protection. No reason had been provided for either the termination or the failure to make provision for existing students.
The advice privilege in s 118 of the Evidence Act could not attach to communications between non-lawyers such as those whom the respondent said were to be treated as the “client”. Professor Lesley Barclay had not been identified as one of the relevant staff, so no communications to or from her would be protected by privilege. The applicant doubted whether every in-house email from 14 February 2013 onwards had been for the dominant purpose of obtaining legal advice, as opposed to, for example, discussing what might be done for Annabelle.
The litigation privilege in s 119 of the Evidence act was not available because there was no “anticipated or pending” legal proceeding in existence. The factors that Ms Perks had identified as being indicators of likely litigation took no account of the nature or content of the correspondence, and there was no example of anything amounting to, or suggestive of, a threat of litigation on the part of the applicant. The reference to compensation in correspondence with the Ombudsman’s office was misleading, as compensation had not been his or Annabelle’s motivation when they first communicated with the respondent in 2013. Their aim had simply been to have the University of Sydney accept Annabelle as a qualified Pathway student and allow her to transfer to the medical program at Sydney. Once Annabelle accepted a place in the University of Queensland’s MD program in September 2014, their motivation turned to uncovering what was behind the maladministration of the Pathway program, given that it involved two universities and four faculties, and an unknown number of students. To date the New South Wales Ombudsman was continuing his investigation into the respondent’s conduct.
The respondent had taken a litigious approach upon the receipt of the applicant’s first email, not because of threats of litigation, as there were none, but because of some other issue unrelated to Annabelle or the applicant’s communications. He submitted that the respondent’s behaviour suggested that there was some concern with the Pathway agreement or the manner or status of its termination, such as the university’s failure to follow its own policies on course termination and the treatment of affected students, that caused the respondent to adopt a litigious approach from the outset. If the legal advice was how to hide the problems with the termination and defeat any student claim, then such communications would not be privileged. Legal advice dealing with covering up past improper conduct or defeating that legitimate claim is not privileged: Finers v Miro [1991] 1 WLR 35, 40.
Making out a claim for client privilege under either s 118 or s 119 required the respondent to discharge the onus of establishing that its in-house counsel were sufficiently independent. A question arose concerning the independence of the university’s general counsel, Mr Richard Fisher AM, by virtue of his also being an adjunct professor of law and therefore potentially having divided loyalties and conflicts of interest. SL v University of Sydney [2011] NSWADT 65 dealt only with salaried legal staff. The issue of general counsel also being a member of the professorial staff was not addressed. If general counsel were not sufficiently independent, than the salaried staff supervised by, and answerable to, him must also lack the necessary independence.
The applicant further contended that any client privilege the respondent might have had was lost through the operation of s 125 of the Evidence Act because that section denies the privilege inter alia to a communication that the client or lawyer knew or should reasonably have known was made or prepared “in furtherance of a deliberate abuse of a power”.
The improper purpose as related to the emails still in dispute was, first, to achieve an outcome where the respondent could claim to have no ongoing obligations to Annabelle as a Pathway student, regardless of whether its actions were proper in terms of statutory or internal policy requirements. This may have involved having to deal with deficiencies in the termination arrangements, which would only come to light on inspection of the emails in contention. Secondly, the improper purpose was to ensure that Annabelle’s application could be defeated by substituting processes or alternatives that the respondent had the sole discretion to determine. That would necessarily require denying her any rights as a Pathway student and therefore disregarding any statutory or internal policy requirements. As a party challenging privilege, the applicant was clearly not in a position to lead much evidence concerning purpose, and in such a case where the other party has exclusive access to the evidence, the court “may be satisfied with relatively less evidence”: Kang v Kwan [2001] NSWSC 698, [37] per Santow J.
There were many circumstances giving “colour to the charge”, as Santow J put it, including the failure to give a reason for cancelling the Pathway agreement, the removal of the original provision obliging the parties to assist affected students by the termination agreement, the termination agreement’s failure to abide by the university’s own policies on the deletion of award courses and failure to abide by the termination agreement provision requiring that current and prospective students be informed that the agreement was at an end. The termination agreement itself violated the basic requirement of the Higher Education Support Act (HESA Act) s 19.30 that all students and prospective students be treated fairly. The fact that the signature of the vice-chancellor on a document as significant as the termination agreement was not witnessed, in apparent disregard for the respondent’s own policies on the execution of documents, also lent substance to the allegation of improper purpose. Those matters should be borne in mind during any inspection of the contested emails.
In oral submissions at the hearing at the adjourned hearing, the applicant submitted that the respondent had not made out a case under either of ss 118 or 119. But if the information were found to come within those provisions, he relied on s 125 and the common law rules relating to improper purpose. For this was not simply a technical GIPA case – the tribunal had to consider the background facts. Annabelle had completed two years at Griffith, but had transferred to SCU on the faith of the Pathway agreement. After a year, having heard no word from the universities, she made enquiries and was told that the Pathways agreement no longer existed. She was not, however, a disgruntled student or the subject of an adverse decision by the university, or a student making a complaint. She was therefore not an instant threat of litigation. Nevertheless, Mr Rubin’s first response was that, the agreement being at an end, the University of Sydney had no further obligations to her, and in addition, she had not sat for the GAMSAT test in time. He did later accept a late September GAMSAT result, but required her to submit to an “undertaking” dated 27 March 2013, which he later called a “waiver” of all her claims. He had promptly sought legal advice and was clearly already thinking that litigation was in prospect. The test, however, is objective, and the fact was that no threats or claims had at that stage been made. By contrast, SCU agreed to a meeting and granted her advanced standing, did not ask for a waiver, and wrote to the vice-chancellor of Sydney University on her behalf. The respondent’s treatment of Annabelle also contrasted with its handling of the Scots College agreement cancellation. At the time the respondent terminated the Pathways agreement, it had in place guidelines relating to the cancellation of courses, but did not comply with them or with applicable legislation.
The respondent contended that communications between non-legal staff were privileged under s 118 because they referred to legal advice. The case law, however, does not extend to staff communications when the persons in question are not lawyers. The dean and deputy dean could be regarded as the “client”, but others would be in the category of “another person” and communications among them would not be protected. As to Professor Barclay, she was said to be responsible for the Northern Rivers area, but there was no other description of her involvement. Consequently s 118 could not apply. There was no reasonable anticipation of litigation such as might activate s 119. Mr Rubin had sought legal advice as soon as he received the applicant’s email of 14 and February 2013, but there was nevertheless no basis for an anticipation of litigation.
Ms Perks had said there had been a number of what the university regarded as “indicators” of likely litigation over medicine admissions, including involvement by an applicant’s parents and the legal background of one or both parents. Nevertheless, in cross-examination, Ms Perks admitted that there had been no examples of statements in the correspondence foreshadowing likely litigation. She had selected certain phrases as suggesting that possibility, but it was more appropriate to look at the correspondence as a whole. The applicant’s initial letter had simply informed the respondent of Annabelle’s circumstances so that they would be able to consider possible options to help her. It was not possible to use later references to litigation as indications of reasonable anticipation at an earlier stage.
Observance by the university of its own course termination guidelines would have avoided litigation. The applicant had assumed that the university would have such a policy, as would any responsible university. Ms Perks’s attempted explanations of why the guidelines did not apply to the Pathway agreement were strained. Mitsubishi was not in point because in that case there had been a specific incident such as would normally give rise to a reasonable anticipation of litigation. In the present case there was no such incident other than the ending of the agreement, which did not directly refer to Annabelle. The letter from the applicant was not such an incident, unlike a case of a failing grade for a particular student.
The independence of the respondent’s general counsel, Mr Fisher, was doubtful because of the dual roles he performed as legal adviser and as an adjunct professor. The evidence about his reporting line was insufficient and the SL case did not apply as it dealt only with salaried staff. As he was not referred to as an addressee of the relevant communications, it would appear that his involvement was being concealed. As he lacked independence, is staff would also lack independence.
The circumstances and documents pointed to the existence of an improper purpose: see Kang at 10. There were also in place statutory requirements for fair dealings with students, but neither university took any steps to honour them, unlike CSU, and simply relieved themselves of their obligations. They told Annabelle that she had failed to gain first round admission because of her ranking, but the Pathway agreement did not use ranking, but guaranteed admission. The failure to offer reasons for termination also pointed to an improper purpose, as did the failure to witness the vice-chancellor’s signature. There were also many other questions about the termination agreement.

Consideration

The tribunal’s function on review under s 63 of the Administrative Decisions Review Act 1997 is to make the correct and preferable decision having regard to the material before it and any applicable “written or unwritten law” (meaning legislation or common law). It is well established that in considering an application for review the tribunal is not confined to the material that was before the deciding agency, but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409.
The objects of the GIPA Act as set out in s 3(1) are to advance the system of responsible and representative democratic government by authorizing and encouraging public release of government information by agencies, giving the public an enforceable right of access to government information and providing that such access is restricted only when there is an overriding public interest against disclosure.
The Act adopts a structured approach that requires decision-makers to:

identify relevant public interest considerations in favour of disclosure,

identify relevant public interest considerations against disclosure,

attribute weight to each consideration for and against disclosure, and

determine whether the balance of the public interest lies in favour of or against disclosure of the government information: Nature Conservation Council of New South Wales v Department of Trade and Investment [2012] NSWADT 195, [29]).

The term “government information” is given a wide meaning by s 4, being defined as “information contained in a record held by an agency”. It is not disputed that the University of Sydney comes within the definition of “agency” and is therefore an agency to which the legislation applies.
The Act establishes a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure: s 5. Applicants for access to government information have a legally enforceable right to be provided with access to it, unless there is an overriding public interest against disclosure: s 9. The GIPA Act overrides other statutory provisions that prohibit disclosure, apart from the “overriding secrecy laws” set out in schedule 1. Section 14 provides that it is to be conclusively presumed that there is an overriding public interest against disclosure of any of the government information described in schedule 1. There is consequently no balancing test for the determination of applications for government information falling into any of the categories in schedule 1.
One class of information that is subject to the conclusive presumption in s 14 is information that would be privileged from production in legal proceedings on the ground of client legal privilege (legal professional privilege), unless the person in whose favour the privilege exists has waived the privilege. An agency seeking to rely on that presumption is required to consider whether it would be appropriate for the agency to waive that privilege before the agency refuses to provide access to government information on that basis: schedule 1, cl 5. The university has decided that it would not be appropriate to waive the privilege in relation to any of the documents remaining in the updated schedule of documents (they are listed under the heading “Part 4” in that schedule).

It is common ground that the question whether the information in issue falls within client legal privilege depends not only on cl 5 of schedule 1 of the GIPA Act, but also on the application of the client privilege provisions of ss 117 to 119 of the Evidence Act 1995. The respondent bears the onus of proving the facts giving rise to the claim of privilege: AWB v Cole (No. 5) (2006) 155 FCR 30, [44].The respondent contends that the material falls within the privilege because it is information prepared for the dominant purpose of the lawyer providing legal advice to the respondent (s 118) or because it is information prepared for the dominant purpose of the university being provided with professional legal services relating to an “anticipated” proceeding to which the university may be a party (s 119). The applicant denies that the material qualifies under either s 118 or s 119, and even if it did, it would be denied client privilege by reason of s 125.
The applicant presented detailed and well-argued submissions that raise many points against the respondent. The majority of those points relate to the merits of the original decisions on the termination of the Pathways program, the treatment of Annabelle’s application and the University of Sydney’s handling of the applicant’s complaint. As such they are not directly relevant to ss 118 and 119 or to cl 5 of schedule 1. Proceedings under the GIPA Act, like those under the earlier freedom of information legislation, should not be used as “a vehicle for the collateral review of the merits or validity of official action”: Raven v University of Sydney [2015] NSWCATAD 104, [45]. Such criticisms may, however, be relevant on the question of improper purpose under s 125.
From the multitude of points raised by the applicant there emerge five main lines of argument or sub-issues that could prove decisive for his case on client privilege. They are:

Communications must be between or among parties who include at least one lawyer;

The respondent’s in-house lawyers lack the requisite independence because the university’s general counsel, Mr Richard Fisher AM, is an adjunct professor of law;

The dominant purpose of providing legal advice (s 118) has not been established;

At the time of the relevant communications there was no reasonable expectation of litigation (s 119); and

If the communications qualified for client privilege, the privilege was lost because the communications had been made for an improper purpose within s 125.

(i) Communications among non-lawyers

As regards the applicant’s first point, the applicant notes that the withheld communications are claimed to have been brought into existence for the dominant purpose of “the lawyer... providing legal advice to the client” and that the respondent describes the key staff as being the client for that purpose, even though none of them were lawyers. He submits that the wording of s 118 makes it clear that advice privilege attaches only to communications between client and lawyers and points out that the respondent cited no authority in support of its contention that privilege could attach to communications between non-lawyers.
The evidence (exhibit R1) shows that Ms Olivia Perks, director of legal services at the University of Sydney and Ms Kristen Migliorini are solicitors within the Office of General Counsel (OGC), an independent professional service unit of the university, and hold current New South Wales practising certificates. They report to the general counsel, Mr Richard Fisher AM, who in turn reports to the vice-chancellor, the university’s principal executive officer, but that reporting line is administrative in nature and involves no supervision by the vice-chancellor of the legal work performed by the Office of General Counsel. Solicitors in the OGC provide legal advice to the senate, the chancellor, the vice-chancellor, senior executives and other officers of the university. Ms Sarah Heesom is a sole practitioner with a current unrestricted New South Wales practising certificate. She is engaged by the OGC as a consultant solicitor to provide advice as required from time to time. That evidence is not disputed.
The respondent submits that whereas it is obvious in the case of natural persons who a solicitor’s client is, that is less clear in the case of a body corporate. Confidential communications between medical school staff concerning requests for advice, instructions to be given to lawyers and the effect of advice received are legally privileged because they are internal deliberations by the OGC’s client and are a natural extension of the legal privilege afforded to confidential documents prepared by natural persons to obtain legal advice or in response to legal advice.
That may well be so, but in my view clearer support for the respondent’s position appears from s 118 itself. The section provides that the privilege attaches if “adducing the evidence would result in disclosure of” a confidential communication between the client and a lawyer or between two or more lawyers. It follows that if two or more non-lawyers communicate about a confidential communication between the client and a lawyer or between two or more lawyers, the privilege will attach because divulging the communication between the non-lawyers would result in the disclosure of the communication from or to a lawyer. As was held in Fenwick v Wambo Coal Pty Ltd (No. 2) [2011] NSWSC 358, [30], “disclosure” for these purposes relates not only to the communication itself, but also to secondary material if its disclosure would reveal the privileged and confidential material.
Apart from the lawyers, the persons named in the withheld communications as senders, addressees or “cc” recipients are:

Professor Bruce Robinson, Dean of Medicine, University of Sydney;

Professor David Cook, Deputy Dean;

Mr Tom Rubin, SMS executive officer at the relevant time;

Ms Lily Lee, SMS admissions manager;

Professor Lesley Barclay AO, Director, University Centre for Rural Health – North Coast;

Professor Iain Graham, Dean and Head, SCU School of Health and Human Sciences; and

Ms Nelida Contreras, Student Support Team, SCU School of Health and Human Sciences.

Some of the communications in question involved one or more of those persons, but were not circulated more widely than that and were clearly treated as confidential. All the persons listed had valid reasons for being parties to the communications and were under at least an implied obligation not to disclose their contents, within the meaning of s 117. As Ms Perks’s evidence explained, they were medical school staff who were responsible for providing policy advice, making decisions on the matters to which the legal advice related or implementing the decisions that were made in response to the advice.
The dean and deputy dean have delegated authority from the senate to make admissions decisions, while Mr Rubin and Ms Lee provided advice on SMS policy and procedure. It is common for deans and deputy deans to seek advice from their faculty staff before making decisions on admission and other student matters. It was necessary for them and the other persons listed to consult one another by email about the instructions to be given to the OGC and about the practical effect of the legal advice received. Further, the privilege extends to advice that is of a non-legal character where that non-legal advice is connected to the giving of legal advice or for contemplated or pending litigation, and to copies of documents that are not privileged where the copy is made for the dominant purpose of obtaining legal advice or for use in pending or contemplated litigation: Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501, 509, 550, 597.
The applicant took issue with the involvement of Professor Barclay, the respondent countering that by virtue of her position she worked closely with SCU and could contribute to the factual background of the legal analysis. That would appear to be correct, as the footer to her emails lists the participants in the North Coast centre for rural health as SMS, SCU, the University of Western Sydney and the University of Wollongong. The applicant’s first line of argument therefore fails.

(ii) Independence of the in-house lawyers

The applicant’s second main point was that the OGC lawyers lacked the necessary degree of independence required for their communications to be treated as privileged. Communications between a client and its in-house lawyers can attract privilege if the lawyer has professional detachment, objective impartiality or an absence of fear or favour: Rich v Harrington (2007) 245 ALR 106. The onus of proving those requirements falls on the party claiming privilege: Telstra Corporation Ltd v Minister for Communications (No.2) [2007] FCA 145, [36]. And in-house lawyer would lack the necessary independence if his or her advice is at risk of being compromised by personal loyalties, duties and interests: Seven Network News v News Ltd (2005) 225 ALR 672, 674. The fact that the general counsel, Mr Fisher, was an adjunct professor of law raised the question of whether his advice, or advice from the legal staff he oversees, is at risk of being compromised.
Ms Perks’s unchallenged evidence (exhibit R1) was that while the general counsel reports to the vice-chancellor, that reporting line is administrative in nature and entails no supervision of any kind over the legal work performed by the OGC. That is sufficient to raise a prima facie inference that Mr Fisher and the OGC do possess the necessary degree of independence. A persuasive burden then falls on the applicant to adduce evidence showing that in reality, Mr Fisher’s independence is compromised by his position as an adjunct professor. At the hearing it was put to Mr Kreutzer that the role of an adjunct can vary widely from one university, and even one faculty, to another. The title may be conferred on a distinguished retired academic as a purely honorific one with a view to gaining some reflected prestige for the university, or it could entail occasionally examining a PhD thesis, or there could be regular teaching commitments, as not infrequently happens in medical and dental schools. As the applicant adduced no evidence to explain what, if any, duties or responsibilities reposed on Mr Fisher as an adjunct professor, the primary inference stands. I therefore find that Mr Fisher and the OGC possess the necessary degree of independence. It is clear that the privilege applies to confidential communications between universities and their salaried legal officers, provided that they have that necessary degree of independence: AQJ v University of New South Wales [2013] NSWADT 306, [157].

(iii) Dominant purpose

The applicant’s third main point was that the dominant purpose of providing legal advice to the client had not been made out. The respondent bore the onus of proving dominant purpose and had not identified “the circumstances in which the relevant communication took place and the topics to which the instructions or advice were directed” (AWB, [44]). He noted that, not having seen the withheld communications, he could not comment on particular emails, but pointed out that all the communications in issue pre-dated his letter of 21 January 2014 which contained the first references to compensation and the possibility of litigation. Throughout 2013 his consistent aim had been to find a satisfactory resolution. It seemed inconceivable that the communications were wholly concerned with legal advice, as some consideration must have been given to the possibility of helping Annabelle to find a way out of her predicament.
Dominant purpose is ascertained by applying an objective test, but subjective purpose may be relevant and can often be decisive: Esso Australia Resources Ltd v FCT (1999) 201 CLR 49, [172] per Callinan J. In the determination of dominant purpose, a subsidiary purpose will not cause loss of the privilege if it would not in itself have been enough to give rise to the communication: Grant v Downs (1970) 135 CLR 674, 692 per Jacobs J.
In oral evidence Ms Perks said that the applicant’s email of 14 February 2013 to the medical school’s executive officer, Mr Rubin, contained a number of features that the OGC regarded as indicators of a legal claim or potential litigation. First, it was from (in this case on behalf of) a person who had been refused admission and believed she had suffered a detriment thereby. Secondly, the correspondence came from a parent of the disappointed applicant. Thirdly, that parent was a lawyer. The applicant’s mention of detriment and Annabelle’s having “changed her position” was a factor in itself, as use of such words usually meant that the university was “being set up” for litigation.
Unlike s 119, s 118 does not require any actual expectation of litigation. The client may have sought legal advice for any reason, whether or not there was any rational basis for apprehending legal problems of any kind. But the university had learned from experience that admissions matters in the medical faculty were much more likely to lead to legal disputes than those in any other discipline. It had learned to act on tell-tale signs that could emerge from the earliest communications even when the possibility of litigation was not actually mentioned. Although s 118 does not require the party invoking privilege to have had any particular expectation of litigation, or any objective reason for having such an expectation, the fact that it did harbour such an apprehension on rational grounds based on experience strengthens the inference that the obtaining of legal advice was indeed the dominant purpose of the communications.
There is no reason to doubt Mr Kreutzer’s evidence that throughout 2013 he had no thought of litigation and believed that merely raising that possibility would have been counter-productive. He had simply been attempting to find a satisfactory solution. In my view his allusions to detriment and an induced change of position probably reflected nothing more than the habits of precise conceptual expression that a lawyer will commonly acquire after a thirty-year career in legal practice such as Mr Kreutzer’s. But his subjective intention is of relatively minor significance in this context. The objective fact was that the university chose to seek legal advice about the applicant’s claims from the outset. Even the fact that the applicant was actively seeking a compromise solution was itself seen by the university as portending a legal claim because, Ms Perks said, in the past it had been found that if no resolution were achieved in such cases, litigation could well result.
Leaving aside for the moment the particular content and circumstances of specific emails, it is clear that the dominant purpose of the exchanges of correspondence in the withheld documents was the obtaining of legal advice. Any references to possible compromise solutions related to a subsidiary purpose which, as Jacobs J pointed out, does not lead to loss of the privilege.
It is now necessary to consider the individual documents that remain after several releases and partial releases. They are all contained in part 4 of the revised schedule, except for document 3 in part 5. They are individually listed and discussed below.
[Not for publication]
My analysis of the documents confirms the respondent’s contention that releasing communications between the client and a lawyer, or between two or more of the University’s lawyers or among non-legal staff for the dominant purpose of the lawyers, or any one or more of them, providing legal advice to the university. On the evidence, including the documents themselves, there is no apparent reason why any of those communications would have come into being if legal advice had not been sought. Indeed, the medical school alerted the university’s legal advisers at the outset and every step was taken in consultation with one or more of the lawyers. The applicant’s third principal line of argument therefore fails.

(iv) Lack of reasonable grounds for expecting litigation: s 119

In view of the conclusion I have reached in relation to the s 118 advice privilege claim, it is not necessary to deal with the s 119 issue.

(v) Improper purpose: s 125

The applicant’s contention that client privilege had been lost by reason of fraud or abuse of power relied on common law authorities and s 125 of the Evidence Act. The relevant provision appears to be s 125(1)(b), which applies to a communication that the client or lawyer, or both, “knew or ought reasonably to have known was made or prepared in furtherance of a deliberate abuse of a power”. The applicant’s submissions on this point are summarized at paras 34, 40-42, 47-49, 56-59 and 64 above. In essence it is argued that the improper purpose consisted of, first, denying any obligations to Annabelle that it had under the Pathways agreement, despite the university’s statutory obligations or internal policies, and, secondly, defeating her application by substituting processes and requirements the satisfaction of which lay in the sole discretion of SMS, as against the right to admission guaranteed in the Pathways agreement.
The principles governing the application of s 125 are usefully summarized by Santow J in Kang v Kwan:

Principles in relation to s125 of the Evidence Act

1. Section 118 of the Evidence Act will operate to bestow legal privilege to confidential communications between a lawyer and client if the dominant purpose of those communications is to acquire legal advice. This is so even if the client intends to use the legal advice obtained, in furtherance of a fraud or some other improper purpose: per Hodgson CJ in Idoport Pty Limited & Anor v National Australia Bank Limited & Ors [2001] NSWSC 222 at para [60]. However that privilege does not prevent the adducing of such evidence where the conditions in s125 of the Evidence Act are made out.
2. However, s.118 will not operate where the improper purpose of the client is not to be pursued through the legal advice which is being sought. In those circumstances the claim for privilege fails at the threshold of s118. Thus it fails where legal advice is not obtained for the utility of that advice in furtherance of the improper purpose but instead for the sake of appearance, as by cloaking an illegal step with the appearance that things are being done properly: per Hodgson CJ in Idoport Pty Limited(supra).
3. A person who alleges that legal professional privilege does not apply to a communication tenders an issue for decision and has the onus of proving it: per McHugh J in Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 141 ALR 545 at 587.
4. At common law a party seeking to resist a claim for legal professional privilege, based on the communication being to facilitate crime or fraud, need show reasonable grounds for believing that the communication between solicitor and client was one made in furtherance of an illegal or improper purpose, including fraud: per Hill J in Zemanek v Commonwealth Bank of Australia & Ors
(FCA, Hill J, 2 October 1997, unreported) at 5. That is the standard in s125(2), namely that “there are reasonable grounds for finding “the fraud, offence, or act, or the abuse of power was committed” and “a communication was made or document prepared in furtherance” thereof.
5. Thus where it is alleged that the communication falls outside the ambit of protection for legal professional privilege it is not sufficient for the party seeking to resist the claim for legal privilege merely to state or assert that the communication was made in furtherance of a fraud or other illegal purpose but must adduce admissible evidence:
Commissioner of Australian Federal Police v Propend Finance Pty Limited (supra).
6. Although the standard of proof is not required to the level of proof on the balance of probabilities that the communication was made in the commission of a fraud or other improper purpose, there must be “something to give colour to the charge”, some evidence at a prima facie level that has foundation in fact grounding such a claim: per McHugh J in Propend at 587; Hill J in Zemanek (supra) at 6.

7. Consistent with the reasoning in Propend, the standards for establishing reasonable grounds will depend on the circumstances, though must still be sufficient to “give colour to the charge”, that is at a prima facie level. Thus if a person challenging privilege is clearly not in a position to lead very much evidence concerning purpose, as where the other party has exclusive access to that evidence, the Court may be satisfied with relatively less evidence. In contrast, much more evidence may be required where the party challenging improperly obtained access to that evidence; Watson v McLearnon [2000] NSWSC 19, Hodgson CJ in Eq, 1 February 2000.
8. Nor must it be overlooked that the court, by s133, may inspect the documents the subject of the claim for privilege, for the purpose of determining a question that arises under the relevant Part 3. Such questions include not only the question of the application of s118 but also questions concerning whether the client legal privilege has been lost or whether the evidence may nonetheless be adduced as under s125.
9. I would follow the view, though expressed as tentative, that "fraud", as used in s.125, requires an element of dishonesty; per Hodgson CJ in Eq in Idoport para [63]. I would however use that term to include the kind of sharp practice often associated with equitable fraud encompassed by the Shorter Oxford Dictionary sense of dishonesty, namely “lack of probity; disposition to deceive, defraud or steal”. I would agree also that an “abuse of power” which is dishonest would be caught by s125(1)(b) as is clear from the requirement that there be a “deliberate” abuse of power. It is difficult to imagine a deliberate abuse of power that does not involve some element of dishonesty but I leave open that possibility for future decision.
10. It follows that the use of the word "deliberate" in s125(1)(b) requires that the client know that the acts in question are an abuse of power, not merely that the client unknowingly but deliberately commit acts that constitute an abuse of power: per Hodgson CJ in Idoportpara [64].
11. The range of instances of fraud are not limited to legal fraud in the narrow sense, but as is said in Cross on Evidence by J D Heydon (Butterworths, 1996) at 25,148:
‘all forms of fraud and dishonesty such as fraudulent breach of trust, fraudulent conspiracy, trickery and sham contrivances’,
[Crescent Farm (Sidcup) Sports Ltd v Sterling offices Ltd
[1972] Ch 553 at 565; [1971] 3 All ER 1192 at 1200], for example an employee who schemes to take other employees and customers into a business competing with the employer’s after termination of the employment, [Barclays Bank plc v Eustice
[1994] 4 All ER 511 at 521-2; [1995] 1 WLR 1238 at 1249 (CA)] or the effecting of transactions at an under value with the purpose of prejudicing a creditor’s interests, [Barclays Bank plc v Eustice
[1994] 4 All ER 511; [1995] 1 WLR 1238 (CA)]”
12. A communication which is made in furtherance of an abuse of the processes of the Court is not of itself fraud, involving dishonesty or a deliberate abuse of a power in the sense used in s125(1)(b). However, a dishonest communication to the Court, in furtherance of a purpose standing outside the (legitimate) scope of the relevant legal process so as to amount to an abuse of process, would invoke s125(1)(b), as constituting a deliberate abuse of a power. This is because the bringing of (or defending) legal proceedings is the exercise of a power which is “conferred by or under an Australian law”, within the definition of power in s125(3). See Williams v Spautz (1992) 174 CLR 509 and
Flower & Hart v White Industries (Qld) Pty Limited (1999) 87 FCRs 134 at 150.

The applicant also relies on common law authority, in particular Finers v Miro [1991] 1 WLR 35, 40, in which the court declared that “Communications in relation to past conduct will not be privileged if the communication is for the purpose of covering up a crime or fraud, or for the purpose of defeating for delaying recovery by the victims of a crime or fraud”.
In support of his allegation of improper purpose, the applicant refers to the large number of allegations concerning the respondent’s conduct set out above, including failure to give any explanation for the cancellation of Pathways, lack of any notification of affected students, removal of provisions from the Pathways agreement concerning students affected by termination, failure to abide by the provisions concerning affected students in the termination agreement, violation of the HESA Act s 19.30 concerning fair treatment of all students, the contrast with the termination of the CSU and Scots College programs and the contrast between the respondent’s attitude to Annabelle’s predicament and that of SCU.
The reference in s 125 to “a deliberate abuse of power” and Finers’s requirement of inter alia “covering up a crime or fraud” indicate that a high level of intentional wrongdoing is required before client privilege will be found to have been defeated. The court in Finers (ibid.) also said that, “It is well established that privilege is lost by the criminal or fraudulent intent of the client, whether or not the solicitor was aware of that intent….” (my emphasis). Derby & Co Ltd v Weldon (No. 7) [1990] 3 All ER 161, 177, on which the applicant also relies, stressed that “An order to disclose documents for which legal professional privilege is claimed lies at the extreme end of the spectrum. Such an order will only be made in exceptional circumstances….” Furtherance of all forms of fraud and dishonesty would cause loss of the privilege, but not inducing breach of contract or the “narrow form” of conspiracy existing in that case.
Something approaching an actual criminal conspiracy (assuming more than one person was involved) would appear to be necessary. Santow J observes that the use of the word “deliberate” requires that the client “know that the acts in question are an abuse of power, not merely that the client unknowingly but deliberately commit acts that constitute an abuse of power”.
The evidence in this case prima facie shows that the respondent treated Annabelle in an unfair and high-handed manner. Ms Tronson submitted that the respondent at all times acted in good faith, but if it did, it nevertheless appears to have behaved with scant regard to the detriment suffered by a prospective student who had acted on the faith of representations made by it. Although Annabelle has since been admitted to the University of Queensland medical school, she has incurred an additional HECS obligation and her graduation, in the normal course of events, has been delayed by two years. While no education is ever really wasted, that is a substantial period out of the life of a young person and a significant postponement of her ability to earn income. Nevertheless, the evidence does not support an inference that the communications came into being “in furtherance of a deliberate abuse of a power”. It was more akin to a case of “the client unknowingly but deliberately commit[ting] acts that constitute an abuse of power”, as Santow J put it. I therefore find that the applicant’s fifth line of argument cannot be sustained and that the respondent has discharged the onus of proving a case for client privilege under s 118.
The application therefore cannot succeed. The decision under review is affirmed.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 23 December 2015

Medium Neutral Citation:	Kreutzer v University of Sydney [2015] NSWCATAD 270
Hearing dates:	21 September 2015
Date of orders:	23 December 2015
Decision date:	23 December 2015
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	Prof G Walker - Senior Member
Decision:	Decision under review affirmed.
Catchwords:	GOVERNMENT INFORMATION PUBLIC ACCESS –client privilege –in-house lawyers –independence -communications among non-lawyers –improper purpose.
Legislation Cited:	Administrative Decisions Review Act 1997; Evidence Act 1995; Government Information (Public Access) Act 2009; Higher Education Support Act 2003 (Cth).
Cases Cited:	Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501; AQJ v University of New South Wales [2013] NSWADT 306; Esso Australia Resources Ltd v FCT (1999) 201 CLR 49; Derby & Co Ltd v Weldon (No. 7) [1990] 3 All ER 161; Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409; Fenwick v Wambo Coal Pty Ltd (No. 2) [2011] NSWSC 358; Finers v Miro (1991) 1 WLR 35; Grant v Downs (1970) 135 CLR 674; Kang v Kwan [2001] NSWSC 698; Nature Conservation Council of New South Wales v Department of Trade and Investment [2012] NSWADT 195; Raven v University of Sydney [2015] NSWCATAD 104; SL v University of Sydney [2011] NSWADT 65; Seven National News Ltd v News Ltd (2005) 2 to 5 ALR 672; Rich v Harrington (2007) 245 ALR 106; Telstra Corporation Ltd v Minister for Communications (No. 2) [2007] FCA 145.
Category:	Principal judgment
Parties:	Mr Philipp Kreutzer (Applicant) University of Sydney (Respondent)
Representation:	Counsel: B Tronson (respondent) Solicitors: Heesom Legal (Respondent) P Kreutzer (Applicant in person)
File Number(s):	1510058
Publication restriction:	Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013, para 91 is not for publication.