Lalogianni and Australian National University - [2001] AATA 347

DECISION AND REASONS FOR DECISION [2001] AATA 347

ADMINISTRATIVE APPEALS TRIBUNAL )

) No A2000/276

GENERAL ADMINISTRATIVE DIVISION       )
           Re      MARIA LALOGIANNI
  Applicant
           And    AUSTRALIAN NATIONAL UNIVERSITY
  Respondent

DECISION

Tribunal Senior Member J.A. Kiosoglous MBE

Date26 April 2001
PlaceCanberra

Decision Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal, having taken into account the evidence as a whole, sets aside the decision under review and in substitution therefor, decides that the documents appearing in the schedule of exempt documents marked: (a) ML 1, 2, 3, 8, 10, 11, 14, 17, 18, 19, 20, 21, 24, 25, 26, 27 and FOI 1, 2, 3, 5, 6 and 7 are exempt documents pursuant to the Freedom of Information Act 1982; (b) ML 4, 5, 6, 7, 9, 12, 13, and 15 are not exempt documents; and (c) ML 22, 23 and FOI 4 are to be released subject to the deletions specified herein.

(Signed)
J.A. KIOSOGLOUS
(Senior Member)
CATCHWORDS
FREEDOM OF INFORMATION – "personal information" considered – "legal privilege" considered – ANU handling of a student complaint of sexual harassment and discrimination – burden of proof issues in FOI – waiver of privilege issues – severability of documents – construction of "litigation" for privilege test – whether university procedures "litigation"
Freedom of Information Act 1982 ss.26, 36, 41, 42, 62
Re Williams and Registrar, The Federal Court of Australia (1985) 8 ALD 219
Re Chandra and Minister for Immigration and Ethnic Affairs (1984) 6 ALN N257
Colakovski v Australian Telecommunications Corporation (1991) 29 FCR 429
Re Proudfoot and Human Rights and Equal Opportunity Commission (1992) 28 ALD 734
Esso Australia Resources Ltd v Commissioner of Taxation (1999) 74 ALJR 339
Re Subramanian and Refugee Review Tribunal (1997) 44 ALD 435
Re Thwaites and Department of Human Services [1998] VCAT 580
Grant v Downs (1976) 135 CLR 674
Anderson v Bank of British Columbia (1876) 2 Ch 644
Baker v Campbell (1983) 153 CLR 52
The Commonwealth of Australia v Frost (1982) 61 FLR 378
Waterford v The Commonwealth of Australia (1987) 163 CLR 54
Re Cole and Department of Justice (1994) 8 VAR 114

REASONS FOR DECISION

26 April 2001 Senior Member J.A. Kiosoglous MBE

This is an application by Ms Maria Lalogianni (the applicant) for review of a decision of a delegate of the respondent dated 18 July 2000 (T1/7) which affirmed a decision of another delegate of the respondent dated 22 June 2000 (T1/16) not to grant access to certain documents contained in University files, primarily relating to a dispute between the applicant and a former employee of the respondent.
The Tribunal received into evidence the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (T1-T8), together with fifteen exhibits, eight lodged by the applicant (Exhibits A1-A8) and seven lodged by the respondent (Exhibits R1-R7). In addition, the Tribunal heard evidence from the applicant, as well as Mr S. Herrick, Legal Practitioner, and Professor J. Richards, Deputy Vice-Chancellor, both called by the respondent. The applicant represented herself and the respondent was represented by Ms A. Tonkin, of counsel, on the first day of hearing, and by Mr K. Grime, also of counsel, upon resumption of this matter for oral submissions.
The issue before the Tribunal in this matter is whether or not certain documents should be released to the applicant. Exemption is claimed by the respondent pursuant to sections 41 and 42 of the Freedom of Information Act 1982 (the Act), which relate to disclosure of personal information and legal professional privilege.
history of the application
The applicant made a complaint of sexual harassment and discrimination against a Mr Saul Fridman, a former Senior Lecturer at the Australian National University (ANU), and also made a complaint about the ANU Faculty of Law's "condoning of inappropriate treatment of students" said to have occurred in or about 1996 and 1997. A committee conducted a preliminary investigation into the complaint and prepared a report dated July 1999 recommending further investigation. Further investigations were initiated into the complaints about Mr Fridman's conduct. Such investigations ceased upon the resignation of Mr Fridman from the respondent's employ in or about April 2000. On 31 May 2000 Professor Michael Coper, Dean of Law at ANU, provided an initial response to the complaint about the Faculty of Law's condoning of inappropriate behaviour, in which he detailed several areas in which the Faculty was reforming policy and procedure (contained in Exhibit A1).
The applicant also appealed to the Australian Capital Territory Discrimination Tribunal in or about early 2000, a complaint which was withdrawn in or about mid 2000.
By letter dated 20 April 2000 (T1/13) the applicant requested "total disclosure" in relation to her various disputes with the ANU, and particularly requesting:
"all the documents the Committee that was set up by the DVC had access to, any notes it may have made, any letters it may have sent and/or received and any notes of responses of people interviewed by the Committee. …"

By letter dated 26 May 2000 (T1/15), Mr Stephen Herrick, Legal Officer of the respondent, advised the applicant that the respondent was granting access to certain files, but claiming exemption in respect of certain other documents. The applicant sought reconsideration of this decision on 23 June 2000 (T1/17).
Professor R. Pashley, Chair, Board of the Faculties, affirmed the decision upon reconsideration dated 18 July 2000 (T1/7), exempting certain documents pursuant to section 36 and sub-sections 42(1) and 41(1) of the Act.
applicant's evidence and submissions
The applicant came to Australia with her family in the early 1970s. In 1984 she commenced tertiary studies in Melbourne, but deferred such studies due to her mother's illness. The applicant told the Tribunal that she came to Canberra with her family in 1993, and commenced at the ANU. She stated that she successfully completed the requirements of her law degree up until 1996, but that she had problems at University which started to get worse from 1997 onwards.
The applicant told the Tribunal that she was a student of Mr Saul Fridman in Corporations Law in 1996, at which time she alleges that he had made "advances towards her" and made "threats about her academic progress". She detailed further problems to the Tribunal, particularly in relation to sitting the Corporations Law exam She eventually sat a supplementary Corporations Law exam and made complaint about the content and marking of that exam.
The applicant submitted a complaint on 4 April 1997 about the Corporations Law subject, but withdrew the complaint on 8 April 1997. She gave evidence about other members of the faculty with whom she had had contact with in relation to the problems she was having, and also in relation to the police coming to interview her about damage that someone had done to Mr Fridman's car.
The applicant stated that the escalation of the problems sent her into a depression, resulting in her missing the mid-year exams in 1997. She considered at this stage that she could not return to the ANU. In 1998 she moved to the University of Sydney, where she again had problems, particularly with depression, eventually obtaining concessional passes in the subjects she undertook there. The applicant detailed the problems she then had obtaining status at the ANU for the subjects undertaken in Sydney.
The applicant told the Tribunal that she believed that the investigations into her complaints about Mr Fridman and the Law Faculty were continuing throughout 1999, and that she only became aware at the end of 1999 that the investigating committee had completed its report in July 1999. The applicant further told the Tribunal about the ongoing freedom of information (FOI) issues that she had with the ANU, and detailed her concerns as to the lack of statements of reasons about FOI decisions that had been made, and the lack of advice about her appeal rights. In cross-examination the applicant was taken through the history of various contacts she had with the ANU relating to the FOI requests, and the timing of various requests and responses. Whilst these issues are important to the applicant and respondent, they are not matters of great relevance to this present application.
The applicant told the Tribunal that she intends to pursue further legal action against the ANU, and sought release of the documents in issue to further assist in the process of preparing for such litigation. In particular, she considered that Mr Fridman had made serious allegations against her, and believed that she was entitled to rebut such allegations as a basic principle of administrative law.
mr s. herrick
Mr Herrick was the Head of the ANU Legal Department during the relevant period, and is admitted as a barrister and solicitor in the Australian Capital Territory, holding a current unrestricted practicing certificate. He told the Tribunal that he collected all available documents relevant to this matter, and separated out the documents which now form the subject of this application. All other documents have been provided to the applicant. He stated that the ANU Legal Department is established in a way to ensure that it provides independent legal advice to the respondent, and that the respondent consulted him in a professional capacity as a legal adviser.
Mr Herrick stated that at one stage in the ongoing investigations into the applicant's complaints, he offered to try to let the ACT Human Rights Officer or the ACT Ombudsman inspect the documents and mediate the disputes between the parties. No such mediation eventuated, and the documents were never released to a third party.
Mr Herrick was taken through the history of this matter at some length, particularly in terms of the release of certain documents to both the applicant and Mr Fridman. That history, however, is not particularly relevant to the task before the Tribunal.
professor j. richards
Professor Richards, Deputy Vice-Chancellor, ANU, was authorised to speak on behalf of the ANU in relation to these proceedings, and as the client in receipt of legal advice, claimed legal professional privilege over the matters specified in the schedule of exempt documents (Exhibit R3 (2) – annexure 'A' to Professor Richards' affidavit). His written affidavit also contained an e-mail letter from Mr Fridman (Exhibit R3(4)) in which Mr Fridman states (inter alia):
"…
… I most strenuously object to the disclosure of my personal information to Ms Lalogiannis [sic].
…"
Professor Richards told the Tribunal that no agreement involving issues relating to the applicant was entered into with Mr Fridman in relation to his resignation from the ANU, and no "compensation or indemnity deal" was struck with Mr Fridman. He stated that he took advice from the Legal Office as to what documents should be released to the applicant, and when the documents should be released.
applicant's submissions
The Tribunal does not intend to set out either parties' submissions at great length in this decision, as it has had the opportunity to digest the comprehensive written and oral submissions received from both parties, and such are obviously well known to both parties.
The applicant submitted that she is entitled to rebut the allegations made about her by Mr Fridman. She further submitted that matters that were before the disciplinary committee or part of the ANU's investigations were not legal proceedings, but internal disciplinary proceedings. She also submitted that the fact that the respondent, through Mr Herrick, was prepared to offer the documents to a third party for mediation purposes constituted a waiver of privilege, and Mr Herrick had shown good faith.
The applicant submitted that internal documents prepared for advice purpose could not then have professional privilege attached simply by being given to solicitors She further submitted that it was in the public interest to release the documents allegedly containing personal information of Mr Fridman, as the serious allegations about her that may be contained therein would outweigh the privacy interests of Mr Fridman. She also submitted that no real harm would result from the disclosure, as she considered that Mr Fridman had already made much of the information public, and most of it was now several years old.
The applicant submitted that the respondent had failed to discharge its onus to establish that disclosure was contrary to the public interest, or that the documents should be exempted under the claimed exemptions.
respondent's submissions
The respondent submitted that the disclosure of the documents concerning the personal affairs of Mr Fridman would be unreasonable, noting that he objected to the release of the documents, and that they contained information of a private nature.
The respondent submitted that the documents for which legal privilege is claimed were produced by independent legal practitioners acting in that capacity in circumstances where the documents came into existence for the sole purpose of seeking or giving advice or in respect of anticipated or existing litigation. The respondent submitted that it had not waived privilege.
The respondent submitted that the public interest test is only relevant in relation to the test of unreasonableness in relation to personal information, and that the public interest would not be served by disclosure.
discussion and findings
As the Tribunal indicated to the applicant at the hearing of this matter, sections 26 and 62 of the Act are not relevant to the question before the Tribunal. Whilst the applicant may seek declarations from the respondent, and also seek further and better statements of reasons under the Act, such are rendered moot by the time that proceedings have progressed to this Tribunal. Such further instrumentation would not assist the applicant in her application to have the documents released. Furthermore, the Tribunal does not consider that the respondent has waived its privilege by offering at a previous juncture to allow a mediator to peruse the documents with a view to resolving the issues between the parties. As a matter of fact, such release never occurred. In any event, such release would not be a "public release", but rather a conditional one, predicated upon the expectation that the mediator would utilise the documents to attempt to resolve the situation without passing on such documentation to any other person without the respondent's express consent.
In relation to sections 41 and 42 of the Act, the Tribunal does not propose to set out a lengthy treatise on the relevant law, as such is dealt with in the parties submissions before the Tribunal. Moreover, this is not a matter which turns upon statutory construction. It is a matter that simply requires the correct application of law to the documents, in order to determine whether or not they should be released to the applicant.
Before addressing the particular documents for which exemption is claimed, the Tribunal makes the following general observations. To be exempt, pursuant to section 41 of the Act, the personal information must relate to matters of a private concern of an individual, and not to matters such as their vocational competence (ReWilliams and Registrar, The Federal Court of Australia (1985) 8 ALD 219). Consideration of section 41 of the Act requires the Tribunal to decide whether or not disclosure would be unreasonable. Unreasonable disclosure was considered in Re Chandra and Minister for Immigration and Ethnic Affairs (1984) 6 ALN N257 at pN259 (inter alia):
"…
… whether a disclosure is 'unreasonable' requires, in my view, a consideration of all the circumstances, including the nature of the information that would be disclosed, the circumstances in which the information was obtained, the likelihood of the information being information that the person concerned would not wish to have disclosed without consent, and whether the information has any current relevance. …
…"

In addressing the issue of personal information and unreasonable disclosure, the Tribunal needs to be mindful of public interest considerations (Colakovski v Australian Telecommunications Corporation (1991) 29 FCR 429 at p438 inter alia):
"…
… The exemption from disclosure of such information is not to protect private rights; rather it is in furtherance of the public interest that information of this kind is excepted from the general right of public access, …
…"

In relation to section 42 of the Act, the Tribunal is required to be mindful of the common law principles concerning legal professional privilege. To be exempt, the document must constitute a confidential communication between a client and a lawyer. The pertinent question is whether or not the document came into existence for use in existing or reasonably contemplated litigation, or for the purposes of legal advice. Reasonably contemplated litigation means that there is a probability or likelihood that such will commence. Privilege may apply to government or in-house lawyers in circumstances where they are admitted practitioners who have been consulted on an independent basis, acting in a legal capacity. A distinction is to be drawn between consultation of such practitioners on internal administrative matters and for the purposes of the provision of legal advice (Re Proudfoot and Human Rights and Equal Opportunity Commission (1992) 28 ALD 734). In Esso Australia Resources Ltd v Commissioner of Taxation (1999) 74 ALJR 339, the majority of the High Court held that the correct common law test was that of the "dominant purpose". That is, if the dominant purpose of a document is to obtain or give legal advice, or comes into existence due to anticipated or existing litigation, then privilege attaches.
In her written submissions, the applicant speaks of the respondent failing to discharge its evidentiary burden of proof in relation to why exemptions should be granted. The Tribunal also notes the submission in Ms Tonkin's written submissions that it is generally inappropriate to speak of a burden of proof in Tribunal proceedings. The Tribunal has approached the matter as follows. Whilst there is no burden of proof on either party, in order to grant the exemptions sought, the Tribunal is required to be satisfied that in all the circumstances, such exemptions are justified. It is a necessary precursor to being so satisfied, that the respondent produces to the Tribunal sufficient evidence to justify such an exemption.
The Tribunal has taken into account all of the evidence before it therefore, including submissions from both parties, and proceeded to consider each document in light of its assessment of the evidence, in order to determine whether it is satisfied that each of the documents listed in the schedule of exempt documents should be exempted from the general principle of disclosure.
documents claimed pursuant to section 41 of the act
The relevant documents are referred to by the title attached to them in the schedule of exempt documents (Exhibit R3 (2)). Documents ML 2, ML 4 and FOI 7 are dealt with under the heading "Documents claimed pursuant to sections 41 and 42 of the Act" herein.
Document ML 5 is a two page letter from Mr Fridman to Professor Richards. In the Tribunal's opinion, that letter does not contain information which could be considered to relate to the private affairs of Mr Fridman. It discusses the conduct of the University inquiry, and does not disclose anything of a private nature. Accordingly, taking into account the nature of the information in the circumstances of this matter, the Tribunal finds that it would not be unreasonable to disclose that letter. The public interest would not be served by exempting a document of this nature. Whilst Mr Fridman expresses strong opinions in the letter, these opinions are echoed throughout the other documentation before the Tribunal which have already been released.

Document ML 6 is a letter of two pages from Professor Richards to Mr Fridman. In assessing whether or not this letter contains information pertaining to private matters of Mr Fridman, the Tribunal has been mindful of the correspondence between Mr Fridman and the ANU which has already been released by the respondent (in particular, that contained in Exhibit A5). Particularly, the events referred to in paragraph two of the ML 6 letter are already in the public domain by virtue of the e-mail correspondence between Mr M. Coper and Ms M. McInroy dated 2 November 1999, Mr Coper and Mr Fridman dated 19 October 1999 , and Mr Herrick and Mr Fridman dated 25 October 1999 which appears in Exhibit A5. Further to that, the second to last sentence of that paragraph is repeated in part in a letter from Mr Fridman to Professor Richards dated 21 January 2000 (appearing in Exhibit A7). There is nothing in paragraph three of ML 6 of a private nature. Paragraph four does no more than state the purpose and function of the Committee of Review, information which is already contained in the released documents. Paragraph five contains a request which is dealt with in Mr Fridman's letter dated 21 January 2000 (appearing in Exhibit A7) and given the content of the penultimate paragraph of Mr Fridman's letter dated 21 January 2000, disclosure of paragraph five of ML 6 would not be unreasonable. Accordingly, the Tribunal finds that, given the extent of information which has already been disclosed, disclosure of the entirety of the letter marked ML 6 would not be unreasonable, or contrary to the public interest. Document ML 12 is the same as ML 6, and accordingly, the Tribunal makes the same finding in respect of ML 12.
Document ML 7 must be considered together with document ML 13. No direct evidence was led before the Tribunal to suggest that Mr McMillan objected to the release of the letter dated 10 January 2000 (ML13). Indeed, the ultimate paragraph therein conveys a contrary sentiment. In the Tribunal's opinion, document ML 13 does not involve matters of a private concern, but matters of University administration. Mr McMillan's perception of certain events as they unfolded does not constitute personal information. It simply constitutes a statement by him as to his understanding of events. It is not in the public interest that this information be exempted, particularly given that it is difficult to see how the information could be considered to be of such a "personal" nature that disclosure would be unreasonable. Accordingly, the Tribunal finds that exemption of ML 13 is not warranted pursuant to section 41 of the Act. In this event, there is no reason not to release document ML 7, as it simply makes reference to ML 13, without containing any material which would reasonably fall under section 41 of the Act.
Document ML 8 is a letter from Mr Fridman to Professor Richards which discusses matters that the Tribunal considers to be of a private nature. It is not reasonably within the scope of the public interest, and more particularly the public interest as to the ANU's complaints handling mechanisms, or the handling of the applicant's complaint in particular. The Tribunal considers that the release of that letter may adversely impact upon Mr Fridman's private affairs. Accordingly, the Tribunal finds that it is not unreasonable to exempt ML 8, pursuant to section 41 of the Act, as exemption is not contrary to the public interest, and that letter concerns the private affairs of an individual third party who has taken objection to its release.
Document ML 9 is a letter from Mr Fridman to Professor Richards. The Tribunal considers that the information detailed therein might well be regarded as concerning the performance of Mr Fridman's official duties rather than his personal affairs (Re Subramanian and Refugee Review Tribunal (1997) 44 ALD 435). He responds to the allegations made against him by the applicant as part of the ongoing proceedings relating to the applicant's complaint. This response is a consolidation of what Mr Fridman has said in previous released documents, and the Tribunal does not consider that it falls within the meaning of "personal information" for the purposes of exemption under section 41 of the Act. It is material which would not be unreasonable to release taking into account all of the circumstances of this matter, and bearing in mind Mr Fridman's interests and the general public interest and the Tribunal so finds.
ML 10 is a file note of Professor Richard's concerning a telephone conversation with Mr Fridman. The Tribunal notes Mr Fridman's interests and objection to the release of such information and in the circumstances, considers that it contains information which is personal information of matters that relate to the private affairs of Mr Fridman, and that disclosure of the file note would be unreasonable disclosure. The public interest is not served by the release of that file note. Accordingly, taking into account the various interests and the nature of the information contained in the file note, the Tribunal is satisfied and so finds that the file note ML 10 should be exempt pursuant to section 41 of the Act.
A draft version of ML 15 already appears in the released documents (part of Exhibit A7), and the terms of the draft are exactly the same as ML 15. Accordingly, no purpose can be served by exempting ML 15, as its contents have already entered the public domain. The Tribunal so finds that it is not an exempt document, as its exact contents have already been disclosed.
Document ML 17 is a letter from Mr Fridman to Professor Richards. It contains material which, in the Tribunal's opinion, concerns matters of a private concern to Mr Fridman. The release of such information is not in the public interest, and furthermore, may be a source of embarrassment or professional disadvantage to Mr Fridman. The release of that letter would not further the public interest in matters of the ANU's complaint mechanisms, and on balance, the Tribunal considers that, balancing the relevant interest, and in all of the circumstances, it would be unreasonable to disclose such personal information. Accordingly, the Tribunal is satisfied and so finds that the letter ML 17 should be exempt, pursuant to section 41 of the Act, as it contains personal information relating to a third party. ML 21 is a copy of ML 17, sent by Professor Richards to Mr Herrick, requesting a legal opinion on the contents. For the same reasons as ML 17, the Tribunal finds that ML 21 is exempt pursuant to section 41 of the Act.
Document ML 23 is a letter from Professor Richards to Mr Fridman which addresses a number of issues which had been raised by Mr Fridman in prior correspondence. There are certain aspects of that letter which relate to the ANU's handling of the applicant's complaint. In the Tribunal's opinion, the public interest is served by these aspects being released. Those aspects are not matters of a private nature concerning Mr Fridman, but more particularly concern the administration of the applicant's complaint by the University. It is not unreasonable to disclose such information. There are other aspects to the letter ML 23 however, that concern issues of a private nature relating to Mr Fridman, the release of which would not serve the public interest. Accordingly, the Tribunal deals with ML 23 by way of partial release with certain deletions to be made. Page one is to be released as it concerns matters of administration and not personal affairs. The first two paragraphs on page two are to be released for the same reasons. The section of the letter from the heading "Third Paragraph" to the heading "Overview of the 7 April letter" is not to be disclosed and is exempt pursuant to section 41 of the Act, being personal information that it is not in the public interest to release. The remainder of page 3 and the top of page 4 up until the heading "Paragraph 7" is to be released, as the Tribunal considers that on the balance of the interests involved, taking into account the circumstances of the matter, the public interest is served by disclosure of that portion of the letter. The Tribunal finds that it relates to the ANU's handling of the applicant's complaint, and does not relate to personal affairs of Mr Fridman. To a certain extent, references are made therein to what Mr Fridman may have raised in the exempted letter ML 17, but the Tribunal does not consider that the release of that portion of ML 23 would affect the rationale behind the exemption of ML 17. The fact that Mr Fridman had concerns as to the ANU's handling of the applicant's complaint is not a matter of private concern, and is a matter raised by him in documents already made public. The Tribunal does not consider that the remainder of the letter from the heading "Paragraph 7" onwards could be reasonably released with deletions, without compromising upon the reasonableness of protecting the public interest in not releasing the information contained therein which relates to Mr Fridman's personal information about matters of a private concern. Accordingly, the Tribunal finds that the remainder of page 4 from the heading "Paragraph 7" and the entirety of page 5 are exempt pursuant to section 41 on the basis that it contains information which is personal to a third party, and in relation to which, disclosure would be unreasonable.
Document ML 24 contains information that is unrelated to any public interest in disclosure, and the Tribunal finds that it falls squarely into the category of being personal information to a third party, namely Mr Fridman. Accordingly, the Tribunal finds that it is exempt pursuant to section 41 of the Act.
documents claimed pursuant to section 42 of the act
As a preliminary point, the Tribunal notes that it found Mr Herrick to be an impressive witness. It accepts his evidence that the ANU Law Office has been set up with a degree of independence from the ANU itself. This is not to say that a solicitor/client relationship is automatically generated in the circumstances, as there would obviously still be administrative functions performed by the ANU Law Office which would not be in the context of a solicitor/client relationship. Nevertheless, the Tribunal is satisfied that, where the contextual circumstances suggest such a relationship, there is the requisite level of independence between the ANU and its Law Office so as to allow for a potential solicitor/client relationship.
Document ML 1 is a document drafted by external Senior Counsel at the request of Mr Herrick, as part of the preparation for the misconduct proceedings that were to be instituted against Mr Fridman pursuant to clause 12 of the Universities and Post-Compulsory Academic Conditions Award 1995.
The question also arises in respect of ML 1 and indeed for much of the documentation for which exemption is claimed pursuant to section 42, as to whether the proposed action against Mr Fridman constituted "litigation", as that term is to be read in relation to the test for legal professional privilege. In Baker v Campbell (1983) 153 CLR 52 the majority of the High Court considered that privilege is not to be limited to judicial or quasi-judicial proceedings, with Murphy J noting at p90 therein (inter alia):
"…
… Further the privilege is necessary so that persons may confidently seek and receive advice about conduct which has, or may have, constituted crime, fraud or a civil offence.
If the privilege does not avail outside the courts why should it continue to be available in the courts? Courts would have less access than non-judicial authorities to that which can expose the truth; thus lowering the authority of judicial findings and decisions in contrast with those of non-judicial bodies. …
…"
The common law notion of reasonably contemplated litigation therefore, must be considered in light of Baker v Campbell, such that the scope of litigation is not to be narrowly construed. In TheCommonwealth of Australia v Frost (1982) 61 FLR 378, Ellicott J held that the privilege applies to proceedings conducted by a Board of Accident Enquiry. In Waterford v The Commonwealth of Australia (1987) 163 CLR 54, it was held to apply to the proceedings of this very Tribunal, with Dawson J noting (inter alia) at p101:
"…
The concept of litigation for the purpose of the doctrine of legal professional privilege is, I think, wide enough to embrace the proceedings before the Tribunal which were conducted upon adversary lines and contemplated legal representation. …
…"

With these principles in mind, the Tribunal has considered the scope of the proposed Committee which was to investigate the allegations of misconduct. It has been mindful of the provisions of the Universities and Post Compulsory Academic Conditions Award 1995 (the Award). It notes that there is a degree of formality in the proceedings pursuant to clause 13 of the Award. Mr Fridman would be allowed an advocate during proceedings (albeit not legally qualified). The right is afforded to cross-examine witnesses ("interviewees") and make submissions, and procedural fairness is to be observed. The Tribunal is satisfied, and so finds, that such proceedings may be characterised as litigation, as that term is to be understood by reference to the above quoted authorities. Contemplated committee proceedings, pursuant to the Award, are within the scope of proceedings to which privilege may attach. It is with this in mind that the Tribunal has approached the question of the application of section 42 in this case.
The Tribunal is satisfied that Mr Herrick, in requesting such documentation from external Senior Counsel, was acting in his capacity as an independent solicitor for the ANU, and that advice from Counsel to such an independent solicitor is within the scope of a confidential communication between client and legal advisor (see Re Thwaites and Department of Human Services [1998] VCAT 580 at paragraph 24 for example, and the general principles enunciated in Grant v Downs (1976) 135 CLR 674, applying Anderson v Bank of British Columbia (1876) 2 Ch 644). A barrister clearly falls within the definition of legal adviser, engaged by the client through the intermediary of the solicitor. The Tribunal is satisfied that the document came into existence for the purpose of legal advice, in that the respondent sought legal advice as to what the form and content of certain documentation it was drafting should be. Accordingly, the Tribunal finds that document ML 1 is exempt pursuant to section 42 of the Act.
Document ML 3 is a document from Mr Herrick to Professor Richards which also encloses a copy of ML 1 for Professor Richards' attention. The Tribunal is satisfied that the entirety of ML 3 constitutes a confidential communication between solicitor and client, and that Mr Herrick was acting as an independent solicitor in the circumstances of the drafting of the memorandum part of ML 3. The memorandum and enclosure came into existence for the purposes of obtaining advice alone, and with reasonably contemplated litigation on foot. The Tribunal is satisfied and so finds that ML 3 is exempt pursuant to section 42 of the Act.
Document ML 11 is a fax from Mr Herrick to external Senior Counsel, requesting Counsel to settle the enclosed documents on behalf of the respondent. The Tribunal is satisfied that all of ML 11, inclusive of all enclosures, came into existence as part of confidential communications between solicitor and client for the predominant purpose of providing legal advice at the respondent's request, with litigation reasonably contemplated. Accordingly, the Tribunal finds that ML 11 is exempt pursuant to section 42 of the Act.
Document ML 14 is the reply by Senior Counsel to the request made in ML 11. For the same reasons as ML 11 the Tribunal finds that it is exempt pursuant to section 42 of the Act. It came into existence predominantly for the purpose of an independent legal practitioner providing legal advice to the respondent, in the course of preparation for proposed litigation.
Document ML 18 consists of two file notes, listed on the schedule of exempt documents as being "internal file notes of University Legal Office", although the Tribunal notes that different letterhead appears on the first of these file notes. Both file notes relate to procedural matters concerning the provision of legal advice to the respondent. The Tribunal is satisfied that both documents came into existence for the purpose of being in use for the provision of legal advice to the respondent alone, and in reasonable contemplation of litigation. Accordingly, documents ML 18 are exempt pursuant to section 42 of the Act.
Document ML 19 is a memorandum from Mr Herrick to Professor Richards. The Tribunal is satisfied that the terms of that memorandum demonstrate that Mr Herrick was acting in his capacity as solicitor to the respondent, and that the document arises as a communication between solicitor and client, for the purposes of the respondent being able to obtain legal advice alone. Accordingly, the Tribunal finds that it is exempt pursuant to section 42 of the Act. Document ML 25 is the same as ML 19 and is similarly exempt.
Document ML 20 consists of a number of drafts of a letter the respondent sought to have prepared. The drafts exist in the form of one amended by external solicitors and forwarded to Mr Herrick, and further drafts, which appear in part to have had amendments made by Professor Richards, amongst others. Clearly, all of the drafts came into existence to finalise a letter of the respondent. All of the drafts were prepared in the context of the respondent obtaining legal advice as to the form and content of the proposed letter. The Tribunal is satisfied that all the documents in ML 20 constitute communications between solicitor and client, or solicitor and external solicitor for the purposes of the respondent obtaining legal advice. Accordingly, the entirety of ML 20 is exempt pursuant to section 42 of the Act.
ML 22 contains a letter dated 7 April 2000 which has already been released (appearing in Exhibit A1). ML 22 also contains a fax from Mr Herrick to an external solicitor, which was prepared in the context of seeking legal advice for the respondent. That fax is exempt, pursuant to section 42 of the Act, being a document dominantly in existence for the purpose of the respondent obtaining legal advice. It also contains a copy of ML 17, which the Tribunal has already ruled exempt pursuant to section 41 of the Act.
Document ML 26 is a fax with enclosures sent by Mr Herrick to external solicitors. It is clear from the cover sheet that the intention of the fax was to seek legal advice on the respondent's behalf. The Tribunal is therefore satisfied, and so finds, that the documents comprising ML 26 are exempt pursuant to section 42 of the Act, as they came into existence for the purposes of obtaining legal advice.
Document FOI 1 is a memorandum to Professor Richards from Mr Herrick. It was prepared for the dominant purpose of obtaining instructions as to the provision of legal advice and in contemplation of litigation, and the Tribunal is satisfied, and so finds, that it is exempt pursuant to section 42 of the Act.
Document FOI 2.1 is a file note of the ANU legal office, prepared in the context of responding to the FOI request of the applicant. In essence, it records communication between the solicitor and a third party within the context of the respondent obtaining legal advice as to the FOI request. The Tribunal is satisfied that it arose in the context of a solicitor/client relationship, and that the only purpose of it was within the scope of the respondent obtaining relevant legal advice. Accordingly, it is exempt pursuant to section 42 of the Act. Document FOI 2.2 consists of a brief to advise external junior counsel , and clearly came into existence solely for the purposes of obtaining legal advice for the respondent. The Tribunal is satisfied, and so finds, that it is exempt pursuant to section 42 of the Act. Document FOI 2.3 is a memorandum from Mr Herrick to Professor Richards which details the advice received from external junior counsel. It is a document which clearly came into existence for the purposes of the respondent obtaining legal advice and is exempt pursuant to section 42 of the Act. Document FOI 2.4 consists of the advice from external junior counsel, and, being prepared solely for the purposes of the respondent obtaining legal advice, is exempt as legal advice pursuant to section 42 of the Act. Document FOI 2.5 is a copy of FOI 2.3 and is exempt for the same reasons as FOI 2.3. FOI 2.6 is the advice received from external junior counsel, and came into existence for the purpose of the respondent obtaining legal advice alone. It is exempt pursuant to section 42 of the Act.

Documents FOI 3.1 and 3.3 are communications by Mr Herrick to third parties. The communications arise in the context of the applicant's FOI request, and the Tribunal is satisfied that the communications arose within that context for the dominant purpose of the respondent obtaining legal advice from the ANU Legal Office, acting in a solicitor/client relationship in relation to the FOI request. Such communications between solicitor and third parties are exempt under the common law test, and accordingly, the Tribunal finds that documents FOI 3.1 and 3.3 are exempt pursuant to section 42 of the Act. Document FOI 3.2 is a communication from an administrative assistant of the University legal and copyright office to Mr Herrick, requesting Mr Herrick's advice as to the handling of the applicant's FOI claim. Accordingly, the Tribunal is satisfied that it came into existence for the dominant purpose of the respondent obtaining legal advice, and it is exempt pursuant to section 42 of the Act.
Page one of document FOI 4 is part of the brief to external counsel, and came into existence for the purpose of the respondent obtaining legal advice. It is therefore exempt pursuant to section 42. Page 2 of FOI 4 (headed "Attachment C") is a copy of FOI 1 and is exempt for the same reasons. Whilst pages 3-6 (attachments C and D) of FOI 4 were part of the brief sent to junior counsel, the documents are, of themselves, material which is publicly available. The Tribunal cannot see any reason why those publicly available documents should be exempted pursuant to section 42 of the Act. The actual documents did not come into existence for the dominant purpose of seeking legal advice, but were simply printed out versions of publicly available material. Such material that is created for another purpose and is then made available to legal advisers is not to be privileged simply for the fact of being made available to legal advisers. Accordingly, the Tribunal finds that pages 3-6 of FOI 4 are not exempt pursuant to the Act.
Document FOI 5 consists of the brief to advise external junior counsel, and came into existence for the purpose of the respondent seeking legal advice alone. Accordingly, it is exempt pursuant to section 42 of the Act.
Document FOI 6 is a memorandum of fees from the external junior counsel. The Tribunal is mindful of the comments of the Victorian AAT in Re Cole and Department of Justice (1994) 8 VAR 114, but notes that privilege as to barristers' fees was claimed in that case under the personal affairs exemption, with that Tribunal noting (inter alia) at p130:
"…
… It seems to me that barristers briefed by the office of the DPP are not in a special position and their right to privacy in relation to their earnings from the State is outweighed by the public's right to access to this information.
…"

That case did not deal with the issue of legal privilege in relation to such fees however, as the disclosure of fees came up in a different context to the present matter. In the present case, the Tribunal is satisfied that the dominant purpose for which the fee memorandum came into existence was for the purposes of the respondent obtaining legal advice. It is a necessary part of obtaining such advice that the respondent receive a bill. Accordingly, the Tribunal finds that section 42 is applicable in respect of FOI 6, and it is an exempt document.
documents claimed pursuant to sections 41 and 42 of the act
Document ML 2 is a fax to external Senior Counsel from the respondent enclosing a number of documents from Mr Fridman's personal file. The Tribunal is satisfied that the first page of ML 2 came into existence for the purposes of the respondent seeking legal advice alone, and finds that it is exempt pursuant to section 42 of the Act. As to the remainder of the documents, the Tribunal is of the opinion that they are documents which concern matters of a private nature relating to Mr Fridman. The public interest, on balance, is not served by disclosure of such documentation, and it is not unreasonable not to disclose the documents, on the basis that they contain information of a private nature, which Mr Fridman objects to being released, taking into account the circumstances of this matter and the public interests. Accordingly, those documents are exempt pursuant to section 41 of the Act.
Document ML 4 is a fax cover sheet and draft version of ML 6 (in the exact same terms) forwarded from Mr Herrick to Professor Coper of the ANU Law School. For the same reasons as ML 6, the Tribunal finds that the draft letter is not exempt, and there is no reason to exempt the fax cover sheet, as it did not come into existence for the purposes of obtaining legal advice. Accordingly, the Tribunal finds that ML 4 is not exempt under the Act.
Document FOI 7 is a draft affidavit prepared by Mr Fridman. In the Tribunal's opinion, it clearly contains information which relates to private concerns of Mr Fridman, and is not connected to his then capacity as an employee of the respondent. Whilst the Tribunal can appreciate that the applicant wants to know the nature of what Mr Fridman may have said about her, it considers that there is a greater public interest in keeping such personal information private in the whole of the surrounding circumstances. Disclosure of the information in FOI 7 (which was a draft affidavit only) could have potentially detrimental consequences for Mr Fridman. It is not unreasonable that information of such a private nature should be exempted from disclosure taking into account the broader facts surrounding these proceedings, Mr Fridman's interests and objections to disclosure, and the public interest considerations. On balance therefore, the Tribunal is satisfied that document FOI 7 should be exempt, pursuant to section 41 of the Act, and so finds. In the alternative, that document was clearly prepared by Mr Fridman at the request of Mr Herrick (the "solicitor", in the context of Mr Fridman (the "client") holding a belief that litigation (in the form of the pursuit of a restraining order) would be forthcoming. Clearly, in those circumstances, the document came into existence for the dominant purpose of anticipated litigation, and the Tribunal finds that it is exempt pursuant to section 42 of the Act.
decision
For the above reasons, and pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal, having taken into account the evidence as a whole, sets aside the decision under review and in substitution therefor, decides that the documents appearing in the schedule of exempt documents marked:
(a)ML 1, 2, 3, 8, 10, 11, 14, 17, 18, 19, 20, 21, 24, 25, 26, 27 and FOI 1, 2, 3, 5, 6 and 7 are exempt documents pursuant to the Freedom of Information Act 1982;
(b)ML 4, 5, 6, 7, 9, 12, 13, and 15 are not exempt documents; and
(c)ML 22, 23 and FOI 4 are to be released subject to the deletions specified herein.
I certify that the 69 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member J.A. Kiosoglous MBE
Signed:         .....................................................................................
  (Personal Assistant)
Date/s of Hearing  5 February 2001 & 8 March 2001
Date of Decision  26 April 2001
Counsel for the Applicant        In person
Solicitor for the Applicant         -
Counsel for the Respondent    Ms A. Tonkin and Mr K. Grime
Solicitor for the Respondent    Elrington Boardman Allport