Macquarie University v Howell
[2008] NSWADTAP 46
•25 July 2008
Appeal Panel - Internal
CITATION: Macquarie University v Howell (GD) [2008] NSWADTAP 46 PARTIES: APPELLANT
RESPONDENT
Macquarie University
Sally Clare HowellFILE NUMBER: 079027 HEARING DATES: 20 February 2008 SUBMISSIONS CLOSED: 20 February 2008
DATE OF DECISION:
25 July 2008BEFORE: O'Connor K - DCJ (President); Higgins S - Judicial Member; Bolt M - Non Judicial Member CATCHWORDS: FREEDOM OF INFORMATION - exempt documents - Clause 10: Legal Professional Privilege - scope of advice privilege - application to documents relating to conduct of investigation into a complaint of misconduct - dominant purpose - appeal dismissed - Clause 13(b): Confidential Information - interpretation of requirements - misapplication - appeal allowed - Freedom of Information Act 1989 - BIAS - apprehended bias - same bench as in previous appeal - application dismissed MATTER FOR DECISION: Appeal DECISION UNDER APPEAL: Howell v Macquarie University [2007] NSWADT 95; Howell v Macquarie University (No.2) [2007] NSWADT 227 FILE NUMBER UNDER APPEAL: 063012 DATE OF DECISION UNDER APPEAL: 09/28/2007 LEGISLATION CITED: Freedom of Information Act 1989
Ombudsman Act 1974
Administrative Decisions Tribunal Act 1997
Evidence Act 1995
Children and Young Persons (Care and Protection) Act 1998CASES CITED: Howell v Macquarie University [2006] NSWADT 207
Howell v Macquarie University (GD) [2007] NSWADTAP 10
Howell v Macquarie University (No 2) (GD) [2007] NSWADTAP 51
Howell v Macquarie University [2008] NSWCA 26
Howell v Macquarie University [2007] NSWADT 95
Howell v Macquarie University (No 2) [2007] NSWADT 227
Daniels Corporation International Pty Ltd and Anor v Australian Competition and Consumer Commission [2002] HCA 49
Esso Australia Resources Ltd v Commissioner of Taxation (1999) 201 CLR 49
Director General, Attorney General's Department v Cianfrano (GD) [2006] NSWADTAP 26
Trade Practices Commission v Sterling (1979) 36 FLR 244
DSE (Holdings) Pty Ltd v Intertan Inc and Anor (2003) 203 ALR 348
Westpac Banking Corporation v 789TEN Pty Ltd [2005] NSWCA 321; (2005) 55 ACSR 519
Wheeler v Le Marchant (1881) 17 Ch D 675
Pratt Holdings Pty Ltd v Commissioner of Taxation (2004) 207 ALR 217
Meteyard v Love [2005] NSWCA 444; (2005) NSWLR 36
Pratt Holdings Pty Ltd v Commissioner of Taxation [2004] FCAFC 122
Grant v Downs [1976] HCA 63; (1976) 135 CLR 674
Waterford v The Commonwealth [1987] HCA 25; (1987) 163 CLR 54
Director General, Department of Education & Training v Mullett & anor (GD) [2002] NSWADTAP 13
Ryder v Booth [1985] VR 870
Bennett v Vice Chancellor, University of New England [2000] NSWADT 8
Re B and Brisbane North Regional Health Authority (1994) 1 QAR 279
Sunol v Collier [2006] NSWADTAP 51
CDJ v VAJ (1998) 197 CLR 172
Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337
Livesey v New South Wales Bar Association (1983) 151 CLR 288
The Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507
Metropolitan Properties Co (FGC) Ltd v Lannon [1968] 1 All ER 354
R v Commonwealth Conciliation and Arbitration Commission ex parte Angliss Group (1969) 122 CLR 546
Ex parte Schofield re Austin (1953) 53 SRNSW 163REPRESENTATION: APPELLANT
RESPONDENT
M Allars, barrister
P Howell, solicitorORDERS: 1. Appeal allowed in part
2. Order 2(e) set aside
3. Orders 2(b), (c) and (d) set aside to the extent that they order release of exempt matter the subject of a claim for exemption on the basis of cl 13
4. Leave granted to extend appeal to the merits in respect of all documents the subject of a claim for exemption on the basis of cl 13 (see further the Appendix to these reasons)
5. Appeal to be listed for further directions.
REASONS FOR DECISION
1 This appeal has its origin in an application for access to documents made to the University, the appellant, under the Freedom of Information Act 1989 (the FOI Act or the Act) by Ms Howell, the respondent.
Background
2 The University received a complaint in November 2004 from the parents of a boy attending a special school run by the University alleging mistreatment. Ms Howell was the deputy principal of the school.
3 The University engaged Mr Geoff Kelly of Lee, Kelly and Associates to investigate and report on the complaint. The University is bound by the Child Protection provisions of the Ombudsman Act 1974. The Act imposes obligations in relation to the handling of an allegation of reportable conduct. This was an allegation of that type. One of the purposes of the investigation was to ascertain whether ‘reportable conduct’ had occurred, in this instance assault or ill treatment of a child in care. The investigation was conducted subject to the monitoring powers of the Ombudsman.
4 Ms Howell was one of several members of staff that Mr Kelly wished to interview in connection with the school’s management of the child. A dispute arose between Ms Howell and the University over her disinclination to be interviewed by Mr Kelly. Ms Howell did submit a written statement to the investigation. The process concluded in July 2005. Mr Kelly reported. He found no reportable conduct on the part of Ms Howell or any other person. The University accepted the finding. The Ombudsman advised in August 2005 that his office was satisfied with the outcome.
5 A person has a legally enforceable right to be given access to an agency’s documents in accordance with the Act: s 16. An agency may refuse to give access to a document if it is an exempt document: s 25. A document is an exempt document if it is a document of the kind referred to in Schedule 1: s 6.
6 Ms Howell has made six applications to the University under the Act for access to documents relating to the investigation, and in particular relating to documents relating to her. Three of the six applications have been resolved between the parties at University level. Two have already been the subject of litigation in the Tribunal (Tribunal file nos. 053277 and 053320), giving rise to the following Tribunal and Court of Appeal decisions: Howell v Macquarie University [2006] NSWADT 207, decision set aside in part by Howell v Macquarie University (GD) [2007] NSWADTAP 10, leave granted to extend to merits; Howell v Macquarie University (No 2) (GD) [2007] NSWADTAP 51 (new merits decision); appeal against that decision dismissed, Howell v Macquarie University [2008] NSWCA 26 (Spigelman CJ, Campbell, Bell JJA). We should note that the Court of Appeal decision, to which we have made some reference in the reasons which follow, was delivered on 12 March 2008, after argument before the Appeal Panel in the present case.
History to date of the Access Application
7 The access application under notice in these proceedings was made by letter dated 26 August 2005. It sought disclosure of:
8 The University decided to release 11 of the documents that it had identified as falling within the scope of the request. It refused to release 80 documents, numbered (by the final form of the schedule of documents from 1 to 80) on the basis that they were exempt. (There is a further document listed in the schedule, Document 81. The University’s determination was that it was outside the scope of the request. This document is not further considered in these reasons.)
(i) All correspondence and reports submitted to the University by Lee, Kelly and Associates in relation to its investigation of a complaint by [the mother of the boy] made in November 2004.
(ii) All documents including witness statements (other than those submitted by [the applicant]) and transcripts of interviews, which were available to Lee, Kelly and Associates when that firm was preparing its investigation report into the above complaint.
(iii) All other documents submitted to the Vice-Chancellor or the Acting Vice-Chancellor prior to the University making a decision on the report submitted by Lee, Kelly and Associates.
9 In relation to all but one of the 80 documents the University determined that they were exempt on the basis that the contents were protected by legal professional privilege (see cl 10, Schedule 1). The one document not the subject of such a claim (document 59) was exempted on the basis that it involved an unreasonable disclosure of personal affairs (see cl 6). Of the 79 documents the subject of a claim for exemption on the basis of legal professional privilege, 28 were also the subject of confidential information claims.
10 The overall picture was as follows:
11 The Tribunal rejected the University’s determination in its entirety insofar as it was based on the confidential information exemption (cl 13), and substantially rejected its case relying on legal professional privilege (cl 10). The decision is the subject of two sets of reasons: Howell v Macquarie University [2007] NSWADT 95, the decision as to which documents are ‘exempt’; and Howell v Macquarie University (No 2) [2007] NSWADT 227, the decision as to whether the agency’s residual discretion to release exempt documents should have been exercised.
(i) Legal Professional Privilege, cl 10: Documents 1-58 and 60-80;
(ii) Unreasonable Disclosure of Personal Affairs, cl 6: Documents 26, 27, 35, 37, 44, 48, 50, 55, 57, 59, 70, 80;
(iii) Disclosure of Business Affairs, cl 7: Documents 32 and 38; and
(iv) Disclosure of Confidential Material, cl 13: Documents 5-8, 10, 16-20, 23, 26-28, 32, 35, 37, 38, 44, 48-50, 55, 57, 58, 60, 70 and 80.
12 The Tribunal upheld the agency’s determination only as to the whole of 7 of the 79 documents (not counting document 59). It decided that 24 contained some exempt matter but otherwise should be disclosed. It decided that the balance, 48 documents, should be released in their entirety. The Tribunal’s final orders were:
13 The above text is of the final order as revised by the Tribunal on 24 October 2007 following representations by the University. The revisions were made under the slip rule ( Administrative Decisions Tribunal Act 1997 (the ADT Act), s 87). There are still some difficulties with the formulation of the orders. They do not deal with the status of those documents where a part, but not the whole, was considered to be exempt: see orders 2(b), (c) and (d). Our understanding of the orders is that the Tribunal determined that the balance of those documents was required to be disclosed.
1. the decision under review is set aside.
2. in substitution for the decision:
(a) the Respondent's determination that Documents 73-79 are exempt under clause 10 of Schedule 1 to the Freedom of Information Act 1989 (NSW) (“the FOI Act") is affirmed;
(b) those parts of Documents 3, 14, 21 and 43 identified in paragraph 105 of the 20 April 2007 reasons are exempt under clause 10 and the documents are to be released with that exempt matter deleted;
(c) those parts of Documents 16, 27, 34, 35, 37, 44, 48, 50, 55, 57, 63, 68, 70 and 71 identified in paragraph 110 of the 20 April 2007 reasons are exempt under clause 6 of Schedule 1 to the FOI Act and the documents are to be released with that exempt matter deleted;
(d) those parts of Documents 32 and 38 identified in paragraph 92 of the 20 April 2007 reasons are exempt under clause 7 of Schedule 1 to the FOI Act and the documents are to be released with that exempt matter deleted; and
(e) Documents 1-2, 4-13, 15, 17-20, 22-26, 28-31, 36, 39-42, 45-47, 49, 51-54, 56, 58, 60-62, 64-67, 69 and 72 are not exempt and are to be released.
3. no order for costs.
4. the release of additional material is to take place 28 days from the date of these orders.
14 The University’s appeal (see amended notice of appeal filed 30 October 2007) is made under the ADT Act, ss 112 and 113. A stay order is in place as to the documents affected by the appeal. The parties have filed written submissions, and made further oral submissions at hearing.
15 The first three grounds of appeal relate to the Tribunal’s application of cl 13; and the fourth relates to the Tribunal’s application of cl 10.
16 The University does not contest orders 2 (c) and (d) insofar as they determined that the privacy and business affairs exemptions applied to some of their contents but were not applicable to the remainder of their contents.
17 It follows that the University does contest orders 2(c) and (d) insofar as they, in effect, conclude that the cl 10 or cl 13 claims are not made out as to the remainder of the contents; and similarly contests order 2(e).
Documents that remain in dispute
18 In the Appendix to these reasons, we have provided a summary description of the documents that remain entirely or partly in dispute. We have also included for completeness the descriptions of the documents found wholly to be exempt, documents 73 to 79. The document numbering follows the sequence of the University’s amended schedule of documents filed 31 August 2006. This schedule replaced the original schedule used during the planning meeting process. At various points at para [14] of its first-stage reasons the Tribunal supplemented the description given by the University to provide a fuller explanation of the context. We have given the Tribunal descriptions in the Appendix. Document 44 (numbered 54 in the original schedule) is, we surmise, the single most important document – the text of Mr Kelly’s final report (70 pages). Documents 45-69 (numbered 55A-MM in the original schedule) are the annexures to the report that remain withheld.
19 It will be seen, therefore, that the most important consequence of the Tribunal’s decision was that it ordered that the Kelly report be released in its entirety to Ms Howell, subject only to deletions that protected the privacy interests of some other persons named in the report. (Throughout this process Ms Howell has been clear that she only wishes to have access to material that deals with her conduct: see para [5] of the Tribunal’s first-stage reasons.)
The Appeal Grounds
20 As the claim for exemption on which the University has principally relied is the legal professional privilege exemption, it is more sensible, we think, to start with the ground of appeal relating to the Tribunal’s decision in that regard, and then go to the appeal as it relates to the confidential information exemption. As noted, the confidential information exemption was only invoked as to 28 of the documents.
Further Background
21 It is essential to an understanding of the University’s arguments in the appeal to set out relevant extracts from letters relating to the engagement of Mr Kelly.
22 Mr Kelly’s letter of appointment by the University is dated 8 December 2004 and was from the University Solicitor. It said:
23 Minter Ellison had been instructed by the University to advise it about its duties under Part 3A of the Ombudsman Act, in particular whether there was evidence constituting a ‘reportable allegation’ within the meaning of Part 3A. By letter dated 8 December 2004 Minter Ellison wrote to Mr Kelly confirming its understanding of his role in terms similar to the University’s letter. For example the letter said:
‘… for the purposes of Minter Ellison providing the [Macquarie University Special Education] School with legal advice concerning the matter referred to above [the complaint], you are appointed as the School’s agent to investigate the allegations and to communicate to Minter Ellison on behalf of the School, whether in place of, or in addition to the School about the matters set out above.
In fulfilling your duties under this appointment, you are required to provide Minter Ellison with any information and instructions requested from you by Minter Ellison in discussions with Minter Ellison and to receive and comply with any views expressed by Minter Ellison to you about the conduct of the matter. …
Please note that all communications between yourself and any other person in relation to this matter are privileged and confidential and must not be disclosed without the School’s prior consent.’
Legal Professional Privilege
‘We understand the School has appointed you as its agent to investigate the allegations and to communicate to us on behalf of the School, whether in place of, or in addition to the School, any relevant information that will enable us to advise the School on the matters set out above. We understand that the purpose of your appointment by the School is so that we can provide the School with legal advice concerning the matter referred to above.’
24 With the exception of one document, the University made a global claim for exemption, relying on cl 10. Clause 10 provides:
25 Legal professional privilege is ‘a rule of substantive law which enables a person to resist the giving of information or the production of documents to a third party which would reveal confidential communications between the person and his or her lawyer made for the dominant purpose of giving or obtaining legal advice or the provision of legal services, including representation in legal proceedings’: Daniels Corporation International Pty Ltd and Anor v Australian Competition and Consumer Commission [2002] HCA 49 (at [9]) per Gleeson CJ, Gaudron, Gummow and Hayne JJ; see also Esso Australia Resources Ltd v Commissioner of Taxation (1999) 201 CLR 49.
‘ 10 Documents subject to legal professional privilege
(1) A document is an exempt document if it contains matter that would be privileged from production in legal proceedings on the ground of legal professional privilege.
(2) A document is not an exempt document by virtue of this clause merely because it contains matter that appears in an agency’s policy document.’
26 In assessing claims for exemption based on legal professional privilege the Tribunal applies the common law test, and not, to the extent that it may be different, the statutory formulation found in the Evidence Act 1995: Director General, Attorney General's Department v Cianfrano (GD) [2006] NSWADTAP 26 at [12]. The exemption ‘should be construed without any prior inclination to construe it narrowly, nor any prior inclination to construe it broadly’: Howell v Macquarie University [2008] NSWCA 26 per Campbell JA at [48].
27 The burden of establishing that a determination is justified lies on the agency: s 61. As to Tribunal’s approach to the evidence, Campbell JA said in Howell at [54]:
28 The common law, historically (and as reflected in the Evidence Act 1995 , ss 118, 119), distinguished between two limbs of legal professional privilege – legal advice privilege and litigation privilege. At first instance the University submitted that the withheld documents were exempt by reference to both limbs. The Tribunal rejected the case based on litigation privilege. This ruling is not the subject of appeal.
‘The task of the Tribunal, in reviewing a claim of legal professional privilege made by an agency, is to make up its own mind, on the basis of such information as it has available to it, about whether the matter contained in a document has the characteristics that would make it privileged from production in legal proceedings on the ground of legal professional privilege.’
29 One of the well known attempts to categorise the kind of communications to which legal professional privilege may apply is found in the frequently-cited judgment of Lockhart J in Trade Practices Commission v Sterling (1979) 36 FLR 244 at 245-6. Two are relevant to the present discussion, categories (a) and (d) (emphasis added):
30 The documents the subject of the global legal professional privilege claim can be grouped as follows:
‘(a) Any communication between a party and his professional legal adviser if it is confidential and made to or by the professional adviser in his professional capacity and with a view to obtaining or giving legal advice or assistance; notwithstanding that the communication is made through agents of the party and the solicitor or the agent of either of them.
(d) Notes, memoranda, minutes or other documents made by the client or officers of the client or the legal adviser of the client of communications which are themselves privileged, or containing a record of those communications, or relate to information sought by the client's legal adviser to enable him to advise the client …’.
31 The documents found to be exempt by the Tribunal all fell into the final group (i.e. the whole of documents 73 to 79, and parts of documents 3, 14, 21 and 43). Documents 73-79 were all records of communications between the in-house legal officers (the University Solicitor) and senior officers of the client, the University. The part documents were all records of communications involving the external solicitors (Minter Ellison) and the client, the University – in this case usually via the University Solicitor. These are all documents that belong to the orthodox area of application of the ‘legal advice’ limb of legal professional privilege, having the characteristic of direct communications between lawyer and client, and having (the Tribunal was satisfied) the quality of legal advice practically understood (as to the latter, see DSE (Holdings) Pty Ltd v Intertan Inc and Anor (2003) 203 ALR 348 at [25] ff per Allsop J).
- all of the investigator’s file material;
- all of the communications between the investigator (Mr Kelly) and the University’s in-house lawyers (the University Solicitor, Ms O’Brien and the Assistant University Solicitor, Ms Friedman) and between him and the external lawyers (Minter Ellison, in particular Ms Seemann); and, finally,
- the communications between the lawyers mentioned and senior officers of the University.
32 On its face the Tribunal’s conclusion that the documents to which Mr Kelly was a party were not privileged is not surprising as he is not a lawyer, and, on its face, was engaged in the activity of investigation designed to ascertain the facts in relation to a complaint, not the giving of legal advice. His work, on this view, was a prelude to the giving of legal advice by the lawyers to the University.
33 For a recent statement of the usual principle as it applies to non-lawyer communications, see Westpac Banking Corporation v 789TEN Pty Ltd [2005] NSWCA 321; (2005) 55 ACSR 519 per Tobias JA at [38], citing Wheeler v Le Marchant (1881) 17 Ch D 675:
34 The University’s case was that, nonetheless, these communications were ones that the extended sphere of legal advice privilege, because either:
‘Communications between the client and another person, or between a lawyer acting for the client and another person, even if made for the dominant purpose of the lawyer providing legal advice to the client, were not privileged under the general law’.
35 These exceptions are drawn from obiter dicta in Wheeler v Le Marchant .
- Mr Kelly was an agent of the University, and therefore part of the ‘client’: see the Lockhart category (a), above, as italicised; or
- His investigation and report was required, in order for its lawyer(s) to give it legal advice: see the Lockhart category (d), above, as italicised.
36 In that case the plaintiff was seeking specific performance of a contract to build on land owned by the defendant. Responding to an order for production of documents, the defendant claimed legal professional privilege in relation to communications between a third party who was a surveyor and the defendant’s solicitor. It was accepted that the documents had come into exercise prior to litigation being in contemplation, so the issue fell to be determined by reference to the legal advice limb of privilege. It was submitted that the surveyor was a person who the solicitor had needed to consult to enable him to advise his client properly, and therefore all communications fell within the protection of legal professional privilege. The trial court upheld the claim to privilege. The Court of Appeal allowed the appeal.
37 Jessel MR said at 681:
38 Jessel MR noted the confidential advice of a ‘medical man’ to the patient and the confidential advice of a priest to a penitent as instances of highly confidential communications not protected by legal professional privilege. He concluded at 681:
‘[I]t has never been hitherto decided that documents are protected merely because they are produced by a third person in answer to an inquiry made by a solicitor.’
39 His Lordship continued at 681-682:
‘Therefore it must not be supposed that there is any principle which says that every confidential communication which it is necessary to make in order to carry on the ordinary business of life is protected.’
40 As to the instant case, he said at 682:
‘The protection [legal professional privilege] … has never gone beyond the obtaining [of] legal advice and assistance, and all things necessary in the shape of communication to the legal advisers are protected from production or discovery in order that legal advice may be obtained safely and sufficiently.’
41 The extension of the privilege to cover certain communications to which a third party non-lawyer is a party is founded on the following dicta of Jessel MR and Cotton LJ. Jessel MR said at 681:
‘What we are asked to protect here is this. The solicitor, being consulted in a matter as to which no dispute has arisen, thinks he would like to know some further facts before giving his advice, and applies to a surveyor to tell him what the state of a given property is, and it is said that the information given ought to be protected because it is desired or required by the solicitor in order to give legal advice. It appears to me that to give such protection would not only extend the rule beyond what has previously been laid down, but beyond what necessity required.’
42 Cotton LJ said at 684:
‘The actual communication to the solicitor by the client is of course protected, and it is equally protected whether it is made to the client in person or is made by an agent on behalf of the client, and whether it is made by an agent on behalf of the client, and whether it is made to the solicitor in person or to a clerk or subordinate of the solicitor who acts in his place and under his direction.’
43 The University submitted that the Kelly documents were ones generated by an agent in the Wheeler v Le Marchant sense, or at the least his report was required for the lawyers to give legal advice. The University’s submission was that Mr Kelly was its agent to conduct the investigation; investigation was required in order that its lawyers could give it appropriate legal advice on how to deal with the complaint, both in terms of its own responsibilities for children in its care and in terms of its responsibilities as an organisation bound by the Child Protection provisions of the Ombudsman Act; and the investigation was necessary for the dominant purpose of enabling the University to be given the legal advice it required.
‘Their case is put, as I understand it, in this way: It is said that as communications between a client and his legal advisers for the purpose of obtaining legal advice are privileged, therefore any communications between the representatives of the client and the solicitor must be also privileged. That is a fallacious use of the word ‘representatives’. If the representative is a person employed as an agent on the part of the client to obtain the legal advice or the solicitor, of course he stands in exactly the same position as the client as regards protection, and his communications with the solicitor stand in the same position as the communications of his principal with the solicitor. But these persons [the surveyors] were not representatives in that sense. They were representatives in this sense, that they were employed on behalf of the clients, the Defendants, to do certain work, but that work was not the communicating with the solicitor to obtain legal advice.’
44 The University’s case appears to have proceeded on the basis that the critical matter was whether Mr Kelly’s engagement had constituted him an agent in the Wheeler v Le Marchant sense; and, if so, dominant purpose would necessarily be found.
45 An alternative view that is gaining some traction is that the question of whether the externally engaged person is able to be characterised as an ‘agent’ within the meaning of Wheeler v Le Marchant is not the relevant question. The leading decision to this effect is Full Court of the Federal Court in Pratt Holdings Pty Ltd v Commissioner of Taxation (2004) 207 ALR 217 (Fed Ct Full Court, Finn, Merkel, Stone JJ). Finn J (Merkel J agreeing) said in Pratt at [41]:
46 Stone J (Merkel J agreeing) said at [105]:
‘… The important consideration in my view is not the nature of the third party’s legal relationship with the party that engaged it but, rather, the nature of the function performed for that party. If that function was to enable the principal to make the communication necessary to obtain legal advice it required, I can see no reason for withholding the privilege from the documentary communication authored by the third party. That party has been so implicated in the communication made by the client to its legal advisor as to bring its work product within the rationale of legal advice privilege.’
47 For a further discussion of this issue, see Meteyard v Love [2005] NSWCA 444; (2005) NSWLR 36, a case that required the application of the Evidence Act principles as distinct from the common law principles. The court referred to Pratt , but was not required to decide whether it was good law. Basten JA did note that there is ‘some artificiality’ in an approach that in assessing the status of third parties differentiates between agents and independent contractors: at [91].
‘The coherent rationale for legal professional privilege developed by the High Court does not lend itself to artificial distinction between situations where that expert assistance is provided by an agent or alter-ego of the client and where it is provided by a third party. Nor, in my view, should the availability of privilege depend on whether the expert opinion is delivered to the lawyer directly by the expert or by the client. Provided that the dominant purpose requirement is met I see no reason why privilege should not extend to the communication by the expert to the client.’
48 The Tribunal’s reasons for rejecting the University’s case were:
49 The University’s grounds of appeal are:
‘103 Of more fundamental significance is the issue of the dominant purpose for which the documents were created. In this regard, I agree with Mr Howell that Mr Kelly was not an agent for the purposes of the University receiving legal advice. His role was to be independent of the University conducting what was essentially an investigation. While the University chose to use its solicitors to liaise with him, this liaison role was an administrative one and did not require legal knowledge. Subject to the exceptions to which I will refer below, it is my view that the documents were created for the dominant purpose of discharging the University's legal obligation to investigate, not for the purpose of legal advice.
104 It is reasonable for a party to obtain the assistance of experts to enable the giving of legal advice. I accept that advice privilege can extend to communications relating to expert advice that is necessary in formulating a request for legal advice and in providing legal advisers with sufficient understanding of the facts to enable that advice to be given (see for example Pratt Holdings Pty Ltd v Commissioner of Taxation [2004] FCAFC 122 where a report had come into existence for the dominant purpose of enabling the party to communicate with its lawyers to seek legal advice). However, in order to attract privilege the expert’s assistance must be sought for the dominant purpose of legal advice. That is not the case in the circumstances of this matter. Most of the documents were created only for the purposes of the investigation, and none would exist but for the investigation. It is my view that they were not communications within a solicitor-client relationship for the purpose of legal advice.
105 I do not consider that advice privilege can be raised in relation to the communications with witnesses; witnesses' statements; the investigation reports; the documents on which the reports were based; or the documents concerning the handling of the investigation. I therefore do not agree with the University’s assertion that the clause 10 exemption applies to all of the documents in relation to which it is asserted.’
50 The submissions refer at para 9.17 in support of ground (d) to the absence of any consideration by the Tribunal in its reasons of the obligations owed to the Ombudsman under Part 3A. Section 25E of the Ombudsman Act provides:
That the Tribunal erred it the application of cl 10 by:
(a) finding that Mr Kelly was not an agent, when all the evidence supported a finding that Mr Kelly was the University’s agent (reasons [103])
(b) finding that Mr Kelly was an expert appointed to assist in the giving of advice but that his assistance was not sought for the dominant purpose of giving that advice, when there was no evidence to support a finding that Mr Kelly was appointed to assist in the giving of advice (reasons [104])
(c) in the alternative, finding that Mr Kelly was an expert appointed to assist in the giving of advice, but that his advice communicated to the University Solicitor was not privileged (reasons [104])
(d) failing to take into account evidence that the University Solicitor had a role of monitoring the conduct of the investigation by Mr Kelly, as agent of the University, to ensure that the University met its legal obligations under Pt 3A of the Ombudsman Act
(e) failing to accept that legal professional privilege and client privilege apply to the flow of information between legal adviser and client including material which is for information only, when the context is a matter on which the adviser is giving legal advice to the client in confidence.
51 Finally in support of ground (e), the submissions at para 9.18-9.20 assert that the Tribunal failed to accept that legal professional privilege applies to the communication of a flow of information between the client (Mr Kelly being the client for this purpose) and lawyer which is for information only when the context is a matter upon which the lawyer is engaged to give legal advice, citing Allsop J in DSE (Holdings) (as cited earlier in these reasons). It is clear that the Tribunal did not have any reason to go to this question, because of the way it dealt with the dominant purpose point.
‘(1) The Ombudsman may monitor the progress of the investigation by a designated government or non-government agency concerning a reportable allegation, or reportable conviction, against an employee of the agency if the Ombudsman considers it is in the public interest to do so.
(2) The Ombudsman or an officer of the Ombudsman may be present as an observer during interviews conducted by or on behalf of the agency for the purpose of the investigation and may confer with the persons conducting the investigation about the conduct and progress of the investigation.
(3) The head of the agency is to provide the Ombudsman with such documentary and other information (including records of interviews) as the Ombudsman may from time to time request with respect to the investigation.’
52 As noted earlier, in our view the University saw the question of whether Mr Kelly was an agent as fundamental to its case. In its appeal submissions in reply, at 5.1, it says:
53 Even if grounds (a), (b), (d) and (e) of the appeal are made out, this does not assist the University in this appeal, in our view, because the Tribunal’s finding as to dominant purpose was ultimately the determinative finding.
‘The principal submission is that the Tribunal’s factual finding that Mr Kelly was independent, and hence not an agent of the University, is not supported by any evidence. The only finding open on the evidence was that Mr Kelly was the University’s agent and that in the position of client he received legal advice from the University Solicitor.’
54 It is clear, we think, that the Tribunal, influenced by the approach adopted by the Federal Court in Pratt was prepared to treat Mr Kelly as a third party with an acceptable connection to the University for the purpose of applying the test for legal professional privilege. Whether he was treated as an agent of the University or a necessary consultant engaged by its solicitor, the Tribunal was not satisfied that the communications documenting Mr Kelly’s work or recording communications between him and the solicitors were created for the dominant purpose of giving or obtaining legal advice.
55 The ascertainment of the dominant purpose is a question of fact. Campbell JA observed as follows in Howell at [72]:
56 As to why the Tribunal erred in its assessment of ‘dominant purpose’, the University’s submissions are not detailed. Ground (c) of the grounds of appeal is the only one that directly addresses this point. At para 9.16 of the principal submissions in support of ground (c), it is noted that Mr Kelly supplied his report in confidence to the University Solicitor and to Minter Ellison. The terms of his engagement are noted. It is then submitted:
‘The purpose for which a document is brought into existence is a question of fact: Grant v Downs [1976] HCA 63; (1976) 135 CLR 674 at [5], 692 per Jacobs J; Waterford v The Commonwealth [1987] HCA 25; (1987) 163 CLR 54 at [10], 66 per Mason and Wilson JJ; [14], 78 per Brennan J. While sometimes direct testimonial evidence from the person who created a document concerning the purpose [for] which it was brought into existence can be both relevant and important, there is no requirement, even in a court of law, for the purpose with which a document was brought into existence to be proved in this way. Sometimes, an examination of the document itself can be enough to establish the dominant purpose with which it came into existence. That is often the case with a brief to counsel to advise, or a memorandum of advice from counsel, that deals with no topic other than the giving of advice. Sometimes, examination of the circumstances in which a particular document has been produced might show that even though the document considered on its own looked like legal advice, or a request for legal advice, there were other extraneous circumstances that led to the conclusion that it was produced with a dominant purpose other than one which would make the document privileged. It is a question of fact, involving weighing such evidence as is available, whether in any particular case a document was produced with a dominant purpose of giving or obtaining legal advice or the provision of legal services.’
57 As noted earlier, the documents the subject of this claim to which protection was not afforded can broadly be described as follows:
‘[The final report] was given for the dominant purpose of enabling the University Solicitor and Minter Ellison to give legal advice to the University as to whether it was a reportable allegation and how the investigation should be conducted and what was its position in terms of compliance with Part 3A of the Ombudsman Act.’
58 An investigation into the complaint would have been required of the University, whatever the statutory overlay. In our view, a private investigator’s report would not ordinarily be seen as the kind of report to which legal advice privilege ought attach; nor the associated communications involving interaction with the lawyers.
- all of the investigator’s file material; and
- all of the communications between the investigator (Mr Kelly) and the University’s in-house lawyers (the University Solicitor, Ms O’Brien and the Assistant University Solicitor, Ms Friedman) and between him and the external lawyers (Minter Ellison, in particular Ms Seemann).
59 Jessel MR’s examples are illustrative of this point. His Lordship had no difficulty in excluding from the scope of privilege a medical report which might later become part of a solicitor’s file for the purpose of advising a client, or defending a claim.
60 In our view the bench in Wheeler v Le Marchant had in mind a strict approach to the conferment of privilege, and had in mind an agent of a narrow type. Had the court been dealing with, instead of a surveyor, a private investigator engaged by the client or the solicitor (the circumstances here), it is unlikely, we think, that it would have reached any different conclusion. Casting the private investigator as the client’s agent, as occurred in the letters of engagement, would not, we think, have made any difference to the thinking of the court in Wheeler v Le Marchant.
61 In this instance there was, in fact, a statutory overlay. Much is made of the existence of the statutory obligations to justify the claim that the investigation report and associated documents were privileged. We accept that the statutory obligations introduced a need to have regard to concepts with a legal dimension such as ‘reportable allegations’, ‘reportable conduct’, and issues connected with the nature of the external accountability to the Ombudsman.
62 There can be little doubt, we think, that Mr Kelly was implicated to a degree in a set of relationships that had as their object the giving and obtaining of legal advice. Nonetheless, the Tribunal saw the investigator’s primary or dominant responsibility to be to conduct an investigation into the facts, and to report thereon. Certainly, it had to be conducted within parameters and by a process that would be effective in addressing the statutory requirements of Part 3A and the guidelines issued by the Ombudsman. It is a usual feature of any investigation of significance into complaints of misconduct by employees that legal parameters of one kind or another will be applicable.
63 The Tribunal is, understandably, constrained as to what it can reveal in a decision by s 55 of the Act. In our view, there would need to be demonstrated a fact-finding error of great significance to interfere with the finding on appeal, or to grant leave to extend to the merits.
64 We are satisfied that the finding that the Tribunal made on the ‘dominant purpose’ issue was open to it to make. It scrutinised the communications contained in the documents. In order to assist us in reaching this conclusion we have reviewed the documents.
65 We are not disposed to exercise the discretion to grant leave to extend to the merits in respect of the cl 10 claims. The appeal in this regard is dismissed.
66 That leaves for consideration the 28 documents the subject of the claim for exemption under cl 13.
The Confidential Information Exemption
67 Clause 13(b) provides:
68 We see the 28 documents as dividing into the following groups:
‘ 13 Documents containing confidential material
A document is an exempt document: …
(b) if it contains matter the disclosure of which:
(i) would otherwise disclose information obtained in confidence, and
(ii) could reasonably be expected to prejudice the future supply of such information to the Government or to an agency, and
(iii) would, on balance, be contrary to the public interest.’
69 As to 15 of the documents, the Tribunal’s conclusion was that they did not contain matter that would disclose information obtained in confidence: documents 10, 16-20, 23, 26, 28, 32, 35, 37, 38, 49 and 60. Ground 2 of the appeal deals with this conclusion.
- file notes made by Mr Kelly (typically of instructions received from the University Solicitor);
- working papers and drafts prepared by Mr Kelly to assist him in organising and conducting the investigation;
- records of interview;
- the draft and final reports and related papers of the investigation and associated working documents;
- and papers related to his professional fees.
70 As to the remainder, (13), it was satisfied that they contained matter that would disclose information obtained in confidence, but was not satisfied that their disclosure could reasonably be expected to prejudice the future supply of such information to the Government or to an agency: documents 5-8, 27, 44, 48, 50, 55, 57, 58, 70 and 80. Ground 1 of the appeal deals with this conclusion.
71 Ground 3 is a consequential ground asserting that the Tribunal failed to address requirement (iii). This only becomes relevant if the Tribunal wrongly assessed the position in respect of requirement (i) and requirement (ii).
72 We will deal with the Grounds in the order that they arise under cl 13(b), and accordingly will commence with Ground 2.
(1) Application of Requirement (i) to Documents 10, 16-20, 23, 26, 28, 32, 35, 37, 38, 49 and 60
73 This ground of appeal is:
74 In essence, the University questions how on the basis of the evidence it presented the Tribunal could have reached the conclusion that these documents would if disclosed not disclose information obtained in confidence.
2. The Tribunal failed to consider properly, or at all, the application of cl 13(b)(i) in Sch 1 to the FOI Act to Documents 10, 16-20, 23, 26, 28, 32, 35, 37, 38, 49 and 60 in that it:
(a) found that these documents containing communications between Mr Kelly and the University Solicitor could not or did not contain matter whose disclosure would disclose information obtained in confidence for the purposes of cl 13(b)(i), when it had found that Mr Kelly was independent of the University rather than its agent (paras 103, 117); and
(b) in the alternative, failed to consider that because Mr Kelly was an agent of the University, and because Mr Kelly and the University had duties of confidentiality under Pt 3A of the Ombudsman Act, Mr Kelly and the University provided and received information in relation to the investigation in confidence.
75 To reiterate. The University Solicitor had advised the senior officers of the University that the complaint might be affected by Part 3A of the Ombudsman Act. The University decided to appoint an external person to conduct an independent investigation and report to it and to its external legal advisers, Minter Ellison. The University was concerned to ensure that the investigation was conducted in accordance with the Ombudsman’s Guidelines, the formal title of this document being Child Protection in the Workplace: Responding to Allegations against Employees (3rd ed. June 2004). Mr Kelly was engaged. The University subsequently gave a formal notice of the complaint and the investigation to the Ombudsman, and kept the Ombudsman informed of the progress of the investigation.
76 The documents that were found not to satisfy requirement (i) are, mostly, records prepared by the investigator, Mr Kelly: evidence matrix and investigation plan or similar documents (10, 49, 60), emails or file notes recording instructions received by the University Solicitor from Mr Kelly (16-20, 37), diary notes by Jennifer O’Brien recording developments in the investigation and instructions received from Mr Kelly (23, 26), record of instructions from Kyle Pitt [a person interviewed as an alleged witness who was concerned to protect the confidentiality of his communications] (28), request from University Solicitor for instructions from Mr Kelly (29, 35), and fee information and records of instructions from the University Solicitor prepared by Mr Kelly (32, 38).
77 It is difficult, on first impression, to see how the Tribunal could have reached the conclusion that these documents did not contain confidential information. On an ordinary understanding, an investigation of allegations of improper conduct by an employee would involve an express or implied mutual understanding that any information would be treated as confidential. It may be that a different position applies to some of the working documents created by the investigator for his own guidance.
78 The Tribunal commenced its assessment as follows:
79 The Tribunal then expressed conclusions as to which documents met requirement (i) and which did not. It said (emphasis added):
‘114 Mr Howell contends that neither Mr Kelly nor the Ombudsman received information under a duty of confidentiality and that any requirements for confidentiality that did apply only existed during the course of the investigation. The evidence from the applicant supports the submission that the issue of confidentiality was not discussed with her. The University says that it is clear from the circumstances of the investigation that material was obtained in confidence.
115 It is a matter of evidence whether the circumstances of the case indicate that information is obtained in confidence. In my view the evidence in this matter suggests that in fact Mr Kelly conducted the investigation in a manner that ensured the confidentiality of the information that he received. Indeed, one of the most contentious issues between the parties arises from an assertion, which the applicant denied, that the applicant was speaking to the other witnesses during the investigation. The University Solicitor and the University's external legal advisers sought to maintain circumstances where confidentiality would be preserved.
116 The Ombudsman's Guidelines place a heavy emphasis upon maintaining confidentiality of the information provided in the investigation and Mr Kelly represented that the investigation would be conducted in accordance with the Ombudsman Guidelines. With respect to the documents relevant to this asserted exemption it is my view that it is probable that the information that Mr Kelly received from the witnesses was obtained in confidence. It is also my view that the reports that the University received from Mr Kelly were obtained in confidence. This view is consistent with that taken in Watkins v Chief Executive, Roads and Traffic Authority and in TW v TX.’
80 It will be seen that no explanation is given at this point for the conclusion that the remaining documents (i.e. 10, 16-20, 23, 26, 28, 32, 35, 37, 38, 49, 60) were not obtained in confidence. As noted already in our discussion of the legal professional privilege issue, the Tribunal must proceed in a way that does not give rise to disclosure of exempt matter (see FOI Act, s 55), and in fairness to the agency, given that the conclusion is contestable by appeal, be prudent in referring to matter which it does not regard as exempt. To similar effect, see Howell per Campbell JA at [76] and [80].
‘117 I have considered each of the documents in regard to which the clause l3(b) exemption is asserted. In my view, the first limb of clause l3(b) is satisfied in relation to documents 5-8, 27, 44, 48, 48, 50, 55, 57, 58, 70 and 80. Documents 5-8 contain risk analysis, which in my view was probably provided in confidence by Mr Kelly to the University. Document 40 contains Reports, which in my view were probably provided in confidence by Mr Kelly to the University. The remaining documents in this category are either witness statements or file notes recording witness statements, which in my view were probably provided in confidence to Mr Kelly. In my view the remaining documents over which the clause l3(b) exemption is asserted were not obtained in confidence. ’
81 In an attempt to ascertain the basis for the Tribunal’s conclusion not to find some of the documents to be ‘information obtained in confidence’, the University suggested that the answer might be found in the Tribunal’s assessment of the nature of Mr Kelly’s relationship to the University at [103] and [104] (set out earlier in these reasons), and its failure to make a positive finding that he was an agent of the University.
82 Ms Howell responds to the University’s submissions at [40] and following of her submissions. She submits, repeating arguments put below, that this is, at one level, simply a case of the University failing to discharge its onus as a result of not calling either Mr Kelly or Ms O’Brien to give evidence as to the question of whether the relationship was confidential. In addition, she argues that the investigation was affected by overriding obligations affecting the University, the investigator, and employee witnesses, which meant that the relationship between Mr Kelly and the University was deprived of the quality of confidentiality, at least in respect of the documents where the Tribunal found that requirement (i) had not been satisfied.
83 As we have said, on their face, these are documents that were created within the environment of a confidential relationship vis a vis the University and the external solicitors, on the one hand, and the persons of interest, on the other hand. Ordinarily, one would have expected the conclusion to be that the information generated within those relationships possessed the quality of confidentiality. The subject matter of the investigation was a complaint of a very serious kind. This factor also points to the activities of Mr Kelly being expected to be conducted in an environment of strict confidence and information given or received being information obtained in confidence.
84 In the normal course it is to be expected that there would be interaction between the investigator and the employer, here the University, over a range of matters especially in the early stages of the investigation. There would be a need to settle the precise scope of the investigation, its purposes and to ascertain who might be potential witnesses and other sources of relevant evidence. The documents as described all seem to fit this pattern.
85 In our view, it is not essential that there be evidence furnished by the investigator and the immediate person with whom the investigator normally dealt (in this instance Ms O’Brien). The absence of such evidence, we accept, could mean that an onus is not satisfied. But the onus can be satisfied in other ways: by scrutiny of the documents themselves, and, as here, by consideration of the evidence of relevant officers of the University who are able to provide an overall account of the relevant circumstances. Here there was evidence from the University’s FOI Officer, Mr Lachlan Morgan, from Professor J A Piper, who carried out the internal review and from Ms Denise Osmand, the University's Director, Financial Services and Bursar. This view is consistent with the view of Campbell JA in Howell quoted earlier in these reasons.
86 Referring to another of Ms Howell’s submissions, it would rarely be the case that an investigation of this kind could be carried out under an absolute guarantee of confidentiality. An investigation into alleged mistreatment of a child in care might well result in disciplinary or criminal charges, with the consequence that some material initially obtained under a guarantee of confidentiality may come to be revealed and relied upon. This does not mean that the communications are deprived of the status of information obtained in confidence.
87 If the Tribunal’s conclusion that Mr Kelly was not an agent did materially affect the Tribunal’s findings as to cl 13, as asserted by the University, then we think that was an irrelevant matter for the purpose of applying cl 13 to these circumstances. Requirement (i) merely turns on whether the information was obtained in confidence.
88 It is not unusual, we consider, for an organisation to engage an outsider with relevant expertise and experience to conduct sensitive internal investigations. This course of action may provide a degree of assurance to complainants and others with an interest in the sound and fair conduct of the investigation that the investigation will be conducted fairly, and not run the risk of a ‘cover up’ as might be thought possible if a serving employee of the organisation undertakes the investigation. The University was entitled to impose constraints of confidentiality on Mr Kelly’s conduct, and did so. It would have been very surprising had it not done so.
89 In our view, the Tribunal failed to explain adequately how it reached the conclusion that the relationship between Mr Kelly and the University, on the one hand (including for that purpose the external solicitors to the University), and between Mr Kelly and interviewed persons did not give rise to information obtained in confidence. The Tribunal erred, and its decision in relation to the documents affected by this conclusion must be revisited (i.e. documents 10, 16-20, 23, 26, 28-29, 32, 35, 37, 38, 49 and 60).
90 In our view, leave should be extended to the merits on this point, and a finding entered that all the documents for which exemption was claimed met requirement (i). In our view, no other conclusion is sustainable on the evidence.
(2) Misapplication of Requirement (ii) to Documents 5-8, 27, 44, 48, 50, 55, 57, 58, 70 and 80
91 In Director General, Department of Education & Training v Mullett & anor (GD) [2002] NSWADTAP 13 the Appeal Panel said:
92 In an early case at first instance in the Tribunal, Bennett v Vice Chancellor, University of New England [2000] NSWADT 8, the General Division (Hennessy DP) said of requirement (ii):
‘58 In our view cl 13(b)(ii) requires the Tribunal to engage in a relatively abstract analysis. It must ask whether material of the kind sought to be protected on the present occasion would, if released, prejudice the supply of similar material to government in the future, as a matter of reasonable expectation. That requires the Tribunal to characterise the nature of the material sought to be protected on the present occasion; to identify the extent to which material of that kind can only be obtained, or can only reasonably be obtained, by confidential communication; the extent to which guarantees of confidentiality may be necessary. We agree with the dicta of Young CJ in Ryder v Booth [1985] VR 870 as to how a similar question arising under the Victorian FOI Act’s in-confidence exemption (whether disclosure would be reasonably likely to impair the ability of an agency to obtain information communicated in confidence) should be approached. His Honour said at 872:
59 His Honour went on to observe at 872 that the question is a question of fact.’
‘The question then is, would disclosure of the information sought impair (i.e. damage) the ability of the [agency] to obtain similar information in future. … It may be noted that it is the ability of the [agency] that must be impaired. The paragraph is not concerned with the question whether the particular doctor whose report is disclosed will give similar information in future but with whether the agency will be able to obtain such information. …’
93 In the present case, the Tribunal said:
‘The second element is that disclosure could reasonably be expected to prejudice the future supply of such information to Government or an agency. In Re B and Brisbane North Regional Health Authority ((1994) 1 QAR 279 at 341) the Queensland Information Commissioner stated that:
Where persons are under an obligation to continue to supply such confidential information (e.g. for government employees, as an incident of their employment; or where there is a statutory power to compel the disclosure of the information) or persons must disclose information if they wish to obtain some benefit from the government (or they would otherwise be disadvantaged by withholding information) then ordinarily, disclosure could not reasonably be expected to prejudice the future supply of such information. In my opinion, the test is not to be applied by reference to whether the particular confider whose confidential information is being considered for disclosure, could reasonably be expected to refuse to supply such information in the future, but by reference to whether disclosure could reasonably be expected to prejudice future supply of such information from a substantial number of the sources available or likely to be available to an agency.’
‘120 The University contends that those who provided the information expected it to be treated as confidential and not disclosed to third parties. It says that disclosure is likely to lead informers in future to fear the adverse consequences of the University's possible disclosure of the information they supply to third parties. The University also says that the concern about an adverse effect upon the flow of information to responsible agencies is heightened in cases where the welfare of children is at stake and that the public interest in protecting the -welfare of children requires that an agency must be able to carry out an investigation unimpeded by having to disclose information received in confidence during or after the investigation.
94 It will be seen that the Tribunal adopted, without further explanation or any considered examination of the University’s submissions to the contrary, the following propositions put by Mr Howell: every communication between the University and Mr Kelly, or between either of them and the witnesses, was open to being disclosed to the Ombudsman, and that was significant; the University could direct staff to provide information of this kind and the potential also existed that the matter could lead to court proceedings in which they might be called as witnesses; the staff therefore disclosed information in the knowledge that the complaint may well go further and so they could never be sure that they would not be identified or that the information that they provided would not be released; an employee is unlikely to withhold information that exonerates a staff member who is the subject of a reportable allegation; and the strong public interest in the release of the information in matters of this kind, and that there is a public interest in individuals having access to documents containing decisions about them.
121 In contrast, Mr Howell [solicitor for Ms Howell] says that because of the particular circumstances, disclosure of the information is unlikely to have any adverse effect on the future flow of information. He submits that every communication between the University and Mr Kelly, or between either of them and the witnesses, was open to being disclosed to the Ombudsman. He says that the University could direct staff to provide information of this kind and the potential also existed that the matter could lead to court proceedings in which they might be called as witnesses. The staff therefore disclosed information in the knowledge that the complaint may well go further and so they could never be sure that they would not be identified or that the information that they provided would not be released. He contends that in any event an employee is unlikely to withhold information that exonerates a staff member who is the subject of a reportable allegation. This argument is relevant to the information provided by individuals who are no longer staff. Similarly, disclosure of the information is unlikely to have any adverse effect on complaints to the University.
122 The applicant asserts that there is a strong public interest in the release of the information in matters of this kind, and that there is a public interest in individuals having access to documents containing decisions about them.
123 I agree with the applicant’s argument that because of the particular circumstances, disclosure of the information is unlikely to have any adverse effect on the future flow of information. For the reasons argued by Mr Howell it is my view that the second limb of Clause 13(b) is not satisfied. It follows that documents 5-8, 27, 44, 48, 48, 50, 55, 57, 58, 70 are not exempt from release pursuant to Clause 13(b) of Schedule 1 to the FOI Act.’
95 The ground of appeal is:
96 As already noted, the type of complaint under investigation in this case was of the most sensitive kind. The allegations, if established, were grave ones which might well have career ending consequences for any employee charged. In these circumstances, it is at least strongly arguable that witnesses would have been concerned to have some assurance of confidentiality of their communications with the investigator and they would be protected from disclosure to the maximum degree possible consistent with the public interest and certainly not to the public at large.
1. The Tribunal erred in its conclusion relating to the application of cl 13(b) in Sch 1 to the Freedom of Information Act 1989 (NSW) (“the FOI Act ”) in that it:
(a) misconstrued cl 13(b)(ii) by limiting its operation to circumstances where the information would not be required to be disclosed pursuant to a direction given by the University to the relevant staff member, and/or would be immune from disclosure pursuant to court processes, such as subpoenas to appear and give evidence, thereby rendering it extremely difficult to satisfy cl 13(b)(ii) (paras 121, 123).
(b) in relation to cl 13(b)(ii) failed to take into account relevant considerations that:
(c) in relation to cl 13(b)(ii) took into account the irrelevant consideration that information could potentially be required to be disclosed pursuant to procedures associated with court proceedings in which staff might be called as witnesses (paras 121, 123), when:
(i) even if documents were sought to be produced in court proceedings by discovery, notice to produce or subpoena, in such circumstances the confidentiality of documents may be protected by a claim of public interest immunity;
(ii) some employees of the University already had an uncooperative attitude to Mr Kelly’s investigation;
(iii) the applicant encouraged employees not to cooperate with Mr Kelly’s investigation;
(iv) investigators may be deterred from accepting appointments to undertake such investigations under Pt 3A of the Ombudsman Act 1974 (NSW), the purpose of which is to facilitate the disclosure of information to agencies, if communications made by investigators in confidence to agencies about the conduct of the investigation may later be disclosed in breach of obligations of confidentiality between the investigators and the agencies;
(v) that the Children and Young Persons (Care and Protection) Act 1998 (NSW), Pt 3A of the Ombudsman Act 1974 (NSW) and the guidelines entitled Child Protection in the Workplace: Responding to Allegations against Employees (3rd ed, June 2004) (“the Ombudsman’s Guidelines”) reflect an assumption that disclosure of information relating to such investigations into allegations of child abuse could reasonably be expected to prejudice the future supply of such information to an agency.
(d) In relation to cl 13(b)(ii) took into account the irrelevant consideration that the University could direct a staff member to disclose information (paras 121, 123), when there was no evidence to support findings that:
(i) at the time when information was provided to Mr Kelly no court proceedings had been commenced and no member of staff had been called as a witness in court proceedings to give evidence relating to the subject matter of the documents;
(ii) there was no evidence that any person who gave information to Mr Kelly did so because he or she thought it would in any event later be disclosed in court proceedings; and
(iii) the proper task of the Tribunal was to consider the effect of disclosure upon the future supply of information rather than the effect on the supply of information in the investigation conducted by Mr Kelly.
(e) in relation to cl 13(b)(ii) found that staff disclosed information in the knowledge that the complaint may well go further (paras 121, 123), when there was no evidence before the Tribunal that the members of staff who disclosed information had such beliefs, or that any one of them had such a belief; and
(i) the University had directed any employee to provide information to Mr Kelly; or
(ii) it was University policy to direct employees to give information to an investigator appointed under Pt 3A of the Ombudsman Act.
(f) in relation to cl 13(b)(ii) found that staff disclosed information in the knowledge that they could never be sure that they would not be identified (paras 121, 123), when there was no evidence before the Tribunal that the members of staff who disclosed information had such beliefs, or that any one of them had such a belief;
(g) in relation to cl 13(b)(ii) found that staff disclosed information in the knowledge that they could never be sure that the information they provided would not be released (paras 121, 123), when there was no evidence before the Tribunal that the members of staff who disclosed information had such beliefs, or that any one of them had such a belief, and there was evidence that in the context of the FOI request at least two members of staff expressed a desire that their statements not be disclosed.
(h) In relation to cl 13(b)(ii) found that it was unlikely that an employee would withhold information that exonerates a staff member who is the subject of a reportable allegation (paras 121, 123), when there was no evidence of this unlikelihood:
(i) found that disclosure of the documents was unlikely to have any adverse effect on complaints to the University (paras 121, 123), when there was no evidence before the Tribunal that disclosure was unlikely to reduce the flow of complaints to the University.
(i) in relation to employees generally in the circumstances of any such investigation; or
(ii) in relation to persons who are no longer employees of the agency.
97 As Young CJ emphasised, the concerns that witnesses might hold is not in itself the critical matter. The focus of the provision is the effect of disclosure on the future ability of the agency to conduct investigations of this type. As we see it, the critical objective of the agency, and of the laws relating to the reporting of alleged abuse of vulnerable persons, is to obtain a high level of co-operation from persons with relevant information, and to have the investigation proceed in an efficient and timely way, especially if there is any suggestion of abuse that is of a repetitious or systemic kind (the latter is not an issue in the present case, we note).
98 In our view, the fact that investigations of the present type fall under the oversight of the Ombudsman and that documents may be vulnerable to subpoena or discovery in legal proceedings is not a significant consideration in assessing the issue of future prejudice.
99 As Finn J said in Pratt at [11]:
100 The same points will often apply to the conduct of an internal investigation of a complaint against employees of an organisation. The confidential communications that occur are not wholly sealed.
‘In the ordinary course of modern life it is commonplace for a person (natural or company) to have confidential communications with a professional adviser or advisers. Whatever the significance that person may attribute to a particular communication so made, such communications are not ordinarily protected from disclosure in legal proceedings or from an authority exercising coercive powers requiring production of information to it.’
101 We agree with the Queensland Information Commissioner in Re B and Brisbane North Regional Health Authority that where information is elicited under duties imposed on those interviewed (employees, social security recipients) it may well be that there is little basis for a claim that the agency’s future ability to obtain similar information is reasonably likely to be prejudiced. The importance of this consideration will vary, depending on the circumstances.
102 Here the focus was alleged maltreatment of a child with disabilities in the care of the University. In this case it may well be that, as asserted by Mr Howell, employees could have been directed to furnish statements. In our view, it will normally be the case that an investigator, especially in a workplace setting, will seek to proceed by co-operation without having to resort to coercive powers. The Tribunal should have dealt with this issue more fully than it did.
103 Attention was drawn by Ms Howell’s submissions to the dicta in Bennett and Mullett to which we have referred above.
104 In Bennett the applicant was seeking access to a confidential report to University Council (by a Dr Lancaster) into the assessment of the applicant’s Ph D thesis. The degree had for many years been refused, and after the investigation, was granted. The Tribunal was satisfied that requirement (i) was made out, but not requirement (ii). It said:
105 In our view, this approach is consistent with the one seen as appropriate by the Appeal Panel in Mullett , i.e. one:
‘38 The Lancaster Report inquired into the procedures followed by employees of the university when assessing Dr Bennett’s PhD. There are two sources of information and advice in the Report. The first is information obtained from employees who had a role in assessing Dr Bennett’s thesis. The second is the opinions and recommendation of Dr Lancaster.
39 Assessing a student’s work is part of the normal duties of academics employed by the University. Dr Lancaster was not asking them to disclose sensitive or confidential information. They were merely being asked to detail the process by which they assessed a student. It is part of the duty of every employee to obey any lawful and reasonable instructions given by their employer. An instruction by an employer such as the University to its employees to disclose the manner in which they have assessed a student is a lawful and reasonable instruction. Disclosure of information obtained from employees of the University in these circumstances could not reasonably be expected to prejudice the future supply of such information to the University.
40 The opinions expressed in the Report are those of Dr Lancaster. He does not say in his statement that he would be reluctant to provide information to Council in the future if the Report was disclosed. His statement focuses on the reluctance of “people” who are “obviously more guarded about what they say if it is to be released to others.” He went on to say that “if Council wants unvarnished views and opinions provided to it in the conduct of its inquiries then it must be able to ask for that information without concern of consequences such as public embarrassment or threat of legal action.”
41 Even if Dr Lancaster meant to imply that he, or others in a similar position, would be reluctant to provide such information in the future, I do not accept that this is the case. As an employee of the University and a member of Council, it is part of Dr Lancaster’s role to provide such opinions when requested. Dr Lancaster’s concerns about embarrassment and possible legal action are not legitimate reasons for withholding information. Consequently, disclosure of information and opinions obtained from Dr Lancaster (and others in a similar situation) could not reasonably be expected to prejudice the future supply of such information to the University.
42 Having made this finding it is not necessary to consider whether disclosure would be contrary to the public interest under this Cl 13(1)(b).’
106 Our conclusion on the Tribunal’s approach to the applicability or otherwise of requirement (ii) is similar to our conclusion in respect of requirement (i).
‘That requires the Tribunal to characterise the nature of the material sought to be protected on the present occasion; to identify the extent to which material of that kind can only be obtained, or can only reasonably be obtained, by confidential communication; the extent to which guarantees of confidentiality may be necessary.’
107 The Tribunal, at the least, should have given, we think, fuller reasons for concluding that the future ability of the University to examine complaints of this kind could not reasonably be expected to be prejudiced by disclosure of the interviews. The Tribunal did not apply this approach to the evidence before it. The University in our view is correct when it says that the Tribunal was required to engage in an abstract, forward looking inquiry on this question.
108 In our view this ground of appeal is established.
109 Finally we refer to another submission made by Ms Howell. It is that another factor that should be taken into account is the alleged duty of an investigator to disclose information adverse to a person given by another person, to enable the first person to respond to that information. In our view, this is not a consideration relevant to an assessment of whether requirement (ii) is made out.
110 Public officials who engage in investigation such as police, or private investigators of Mr Kelly’s type, are obliged to obtain information by fair and not unlawful means. It does not follow that they are under any obligation to tell the different people they interview what others might be saying about them or the subject matter of the inquiry. The public interest in discovering the facts may well not be served by early disclosure to, for example, a suspect what others may be saying about the suspect’s conduct or what may be being discovered by other means such as surveillance, examination of intelligence records or seizure of documents and things. Investigators may choose in the course of the investigation to put a specific allegation or matter to a witness in order to get a response. If charges are ultimately laid, it will become necessary to disclose the evidence relied upon.
111 In any case the limited cross-disclosure that may be appropriate in the course of investigation has, we think, no bearing on the calculus to be made under Freedom of Information laws where disclosure is unconditional.
(3) Failure to Apply Requirement (iii)
112 In light of the Appeal Panel’s conclusions in respect of Grounds 2 and 1, it follows that Ground 3 is made out.
Application for Leave to Extend to the Merits
113 We have concluded that the Tribunal’s reasons were deficient in connection with cl 13, and its decision should be set aside in that respect. We have entered a substitute finding in respect of requirement (i) of cl 13(b).
114 The issue is whether the application for review should be remitted for redetermination in light of these reasons or retained and disposed of by the Appeal Panel. As to the exercise of this discretion, the Appeal Panel has said:
115 The main substantive hearing in this case occurred almost two years ago. The prompt disposal of the case was delayed by the need to address the possibility of discretionary release of the documents considered to be exempt. The result was that the final Tribunal decision did not issue until September 2007, with the appeal hearing taking place in February 2008. In our view, it is desirable that the proceedings be finalised. Accordingly, the Appeal Panel will retain the matter, and therefore grants the application for leave to extend the appeal to the merits. The Appeal Panel is in just as good a position as the Tribunal at first instance to undertake a review of the merits.
‘85 While the Appeal Panel’s discretion to grant leave is not qualified by the ADT Act (see, for example, Sunol v Collier [2006] NSWADTAP 51 at [29]), it should be exercised with caution and in the interests of justice. It is not enough that the appellant disagrees with the decision. The Appeal Panel is not designed to be a second trial level of the Tribunal. As McHugh J said in CDJ v VAJ (1998) 197 CLR 172 at [111] the power to permit an appeal on a question of fact is ‘not intended to have the practical effect of obliterating the distinction between original and appellate jurisdiction’. Appeal Panels must recognise the importance of not interfering with soundly-made decisions. An appellant should normally, we think, demonstrate on persuasive grounds that a substantial injustice would result if the decision was allowed to stand.’
Disqualification Application
116 At the commencement of the appeal hearing, Mr Howell on behalf of Ms Howell applied for the Appeal Panel to disqualify itself on the ground of actual or apprehended bias. The Appeal Panel rejected the application. It indicated that it would provide its reasons as part of the final decision. These reasons follow.
117 This Appeal Panel is constituted by the same members who heard the appeals arising out of access applications one and three. The final decisions were cited earlier in these reasons, as has the Court of Appeal decision dismissing Ms Howell’s appeal against those decisions.
118 Mr Howell submitted that the Appeal Panel should disqualify itself because it has already made factual determinations in the earlier proceedings on the following matters, giving rise to actual bias, or in the alternative, apprehended bias, as follows:
119 Mr Howell submitted that these alleged findings demonstrated that the Panel had already adopted a firm view in relation to the conduct of parties during the period in which the documents were created and this gave rise to an apprehension of bias in relation to any assessment by the Appeal Panel of the ‘obtained in confidence’ exemption under clause 13 (b) and the public interest component, if the appeal proceeded to the merits. Mr Howell also submitted that comments made by the Appeal Panel demonstrated an irrelevant preoccupation with the fact that he represented his wife in proceedings and that this gave rise to an apprehension of bias. Ms Allars for the University opposed the application.
a. That Ms Howell did not cooperate with Mr Kelly’s investigation;
b. That there was no evidence of improper purpose on the part of the University, and therefore this basis for denying legal professional privilege was not established.
120 In our view, while Mr Howell referred at times in his submission to ‘actual’ bias, he did not refer to any material which might demonstrate that this Panel was actually biased against his client. We will not pursue that branch of his objection any further.
121 The leading authority today as to the approach to be applied by a judge or tribunal member who is the subject of a bias objection is: Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337, where Gleeson CJ, McHugh, Gummow and Hayne JJ said:
122 Other leading authorities include: Livesey v New South Wales Bar Association (1983) 151 CLR 288 at 293-294; 348 and The Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 at 548-549.
‘6. Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity (which may be relevant to the second appeal), a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle.
7. The apprehension of bias principle may be thought to find its justification in the importance of the basic principle, that the tribunal be independent and impartial. So important is the principle that even the appearance of departure from it is prohibited lest the integrity of the judicial system be undermined. There are, however, some other aspects of the apprehension of bias principle which should be recognised. Deciding whether a judicial officer (or juror) might not bring an impartial mind to the resolution of a question that has not been determined requires no prediction about how the judge or juror will in fact approach the matter. The question is one of possibility (real and not remote), not probability. Similarly, if the matter has already been decided, the test is one which requires no conclusion about what factors actually influenced the outcome. No attempt need be made to inquire into the actual thought processes of the judge or juror.
8. The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an "interest" in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.’
123 The test is an objective one and requires a real possibility of apprehended bias. The bias rule of procedural fairness is designed to secure the integrity of administration by requiring the decision-maker to be impartial in adjudicating a matter and disinterested in the outcome: Metropolitan Properties Co (FGC) Ltd v Lannon [1968] 1 All ER 354.
124 Mr Howell referred in support of his submission to two cases, R v Commonwealth Conciliation and Arbitration Commission ex parte Angliss Group (1969) 122 CLR 546 at 592-3 and Ex parte Schofield re Austin (1953) 53 SRNSW 163. In Angliss, a well-known case, the objection was that the judge brought a predetermined view to the resolution of the issues. The objector referred to a speech the judge had given touching on issues now before him in a judicial capacity. The High Court upheld the judge’s rejection of the objection. This was we consider a more potent case for recusal on the ground of predetermination than anything presented by Mr Howell in respect of our prior decisions, yet it failed.
125 In Schofield a magistrate had made a number of adverse findings as to the credibility of a person in a criminal proceeding using very strong language. The magistrate then immediately moved to hear a civil proceeding to which that person was a party. He refused an application to disqualify himself. The Full Court of the Supreme Court ruled that the magistrate should have disqualified himself from the hearing. Even if the magistrate’s comments were justified it was clear he had formed a strong view about the present applicants and their capacity to tell the truth. In our view, there is nothing about the Appeal Panel’s prior determination in respect of applications one and three that remotely resembles the extreme behaviour by the Bench that fell under notice in Schofield.
126 In our view, the account we gave of the background circumstances in the earlier decisions was no more than an attempt to provide an overview of the context and the circumstances that gave rise to the access applications. The statements do not constitute findings of fact in the formal sense, and were not, in our view, significant to the ultimate conclusions in those cases. The issues that arose in the earlier decisions like this one were essentially ones relating to correct application of legal principles to the documents. An appeal against the Appeal Panel’s reasoning was, as we have noted, dismissed by the Court of Appeal.
127 In the daily operation of the legal system, it is not that unusual to see the same parties have a series of contests arising out of the same or a similar set of circumstances. Equally, it is not unusual in this Tribunal for there to be a series of FOI applications that relate essentially to the one broad set of administrative circumstances. In our view it is desirable that benches that are familiar with what may be complex sets of circumstances are retained as the hearing bench.
128 The High Court in Re Ebner emphasised the importance of benches not lightly acceding to bias objections and that the objection should always be determined by reference to the relevant legal standard. Gleeson CJ, McHugh, Gummow and Hayne JJ said at [19] and [20]:
129 As to these observations we would enter the following qualification. As is the case in courts and tribunals generally, the head of jurisdiction has ultimate responsibility for listing. So the President is involved, by necessity, in making the listing decisions in the cases in which he or she sits.
‘19. Judges have a duty to exercise their judicial functions when their jurisdiction is regularly invoked and they are assigned to cases in accordance with the practice which prevails in the court to which they belong. They do not select the cases they will hear, and they are not at liberty to decline to hear cases without good cause. Judges do not choose their cases; and litigants do not choose their judges. If one party to a case objects to a particular judge sitting, or continuing to sit, then that objection should not prevail unless it is based upon a substantial ground for contending that the judge is disqualified from hearing and deciding the case.
20. This is not to say that it is improper for a judge to decline to sit unless the judge has affirmatively concluded that he or she is disqualified. In a case of real doubt, it will often be prudent for a judge to decide not to sit in order to avoid the inconvenience that could result if an appellate court were to take a different view on the matter of disqualification. However, if the mere making of an insubstantial objection were sufficient to lead a judge to decline to hear or decide a case, the system would soon reach a stage where, for practical purposes, individual parties could influence the composition of the bench. That would be intolerable.’
130 The references to his personal association with the access applicant are passing ones. The rejection of his improper purpose argument does not prefigure doom on a subsequent occasion. The problem on the last occasion, as we saw it, was that the evidentiary threshold was not reached by his client.
131 It would be highly disruptive if the bench that dealt with a similar matter on previous occasions were to disqualify itself simply on the ground that it had given a decision unfavourable to one of the parties on an earlier occasion.
132 Our conclusion, as advised at the commencement of the hearing, is that a fair minded lay observer would not entertain a reasonable apprehension that this bench would not be likely to bring a fair and impartial mind to the disposition of these proceedings.
Orders
1. Appeal allowed in part
2. Order 2(e) set aside
3. Orders 2(b), (c) and (d) set aside to the extent that they order release of exempt matter the subject of a claim for exemption on the basis of cl 13
4. Leave granted to extend appeal to the merits in respect of all documents the subject of a claim for exemption on the basis of cl 13 (see further the Appendix to these reasons)
5. Appeal to be listed for further directions.
APPENDIX
Documents upheld as wholly Exempt by the Tribunal
Documents [73 to 79] inclusive are a memorandum from the Assistant University Solicitor to Professor Yerbury dated 29 June 2005, an email from the Assistant University Solicitor to Kylie Colvin dated 1 July 2005, a draft memorandum from the Assistant University Solicitor to Professor Yerbury dated 1 July 2005, a draft letter to go on the VC's University letterhead, a memorandum from the Assistant University Solicitor to Professor Yerbury dated 1 July 2005, a memorandum from the Assistant University Solicitor to Professor Loxton dated 6 July 2005 and an email from the Assistant University Solicitor to Professor Loxton dated 13 July 2005. The memoranda and emails contain advice given by the Assistant University Solicitor in relation to the University's legal obligations and rights and reference to further instructions.
Documents that remain in Dispute in whole or in part
As to the whole of Documents 1-2, 4-13, 15, 17-20, 22-26, 28-31, 36, 39-42, 45-47, 49, 51-54, 56, 58, 60-62, 64-67, 69 and 72, the University’s determination was set aside by the primary Tribunal.
As to Documents 3, 14, 21 and 43, the University’s determination was upheld as to parts on the basis of legal professional privilege or confidentiality but otherwise was in effect set aside.
As to Documents 16, 27, 32, 34, 35, 37, 38, 44, 48, 50, 55, 57, 63, 68, 70 and 71, the University’s determination was upheld as to parts relying on other exemptions, but was not successful as to the balance on the basis of legal professional privilege or confidentiality.
As noted in the reasons for decision at [15], Mr Kelly’s final report is a single large document, and the documents within that report which remain in dispute are those numbered between 44 and 69 in this list.
(A) The documents the subject of a cl 10 (Legal Professional Privilege) Claim Only are:
Document [1] is a diary note by Jennifer O'Brien of a telephone conversation recording developments in an investigation and instructions received by the University Solicitor from Geoff Kelly.
Document [2] is a facsimile from Geoff Kelly to Jennifer O'Brien transmitting a copy of the chronological index of documents in a brief from Minter Ellison.
Document [3] is a diary note by Jennifer O'Brien of telephone conversations recording developments in an investigation, instructions received by the University Solicitor from Geoff Kelly and Professor Wheldall and advice received by the University Solicitor from Minter Ellison.
Document [4] is an email from Geoff Kelly to the University Solicitor. The email is a record of instructions received by the University Solicitor from Geoff Kelly.
Document [9] is an email from Geoff Kelly to the University Solicitor. The email is a record of instructions received by the University Solicitor from Geoff Kelly.
Document [11] is a letter from the University Solicitor to Geoff Kelly dated 16 December 2004, seeking instructions from Geoff Kelly.
Document [12] is an email from Geoff Kelly to the University Solicitor. The email is a record of instructions received by the University Solicitor from Geoff Kelly.
Document [13] is a copy of an unsigned letter prepared by Geoff Kelly and attached to Document [12]. It is a record of instructions received by the University Solicitor from Geoff Kelly.
Document [14] is an email from the University Solicitor to Geoff Kelly and Jacquie Seemann of Minter Ellison dated 20 December 2004. In the email the University Solicitor seeks instructions from Geoff Kelly and advice from Jacquie Seemann.
Document [15] is an email from Geoff Kelly to the University Solicitor and Jacquie Seemann. The email is a record of instructions received by the University Solicitor from Geoff Kelly.
Document [21] is a diary note by Jennifer O'Brien of a telephone conversation recording developments in an investigation, instructions received by the University Solicitor from Geoff Kelly and advice received by the University Solicitor from Jacquie Seemann of Minter Ellison.
Document [22] is an email from Geoff Kelly to the University Solicitor and Jacquie Seemann and an unsigned letter prepared by Geoff Kelly. The email and letter are records of instructions received by the University Solicitor from Geoff Kelly.
Documents [24] is a diary note by Jennifer O'Brien of telephone conversations recording developments in an investigation and instructions received by the University Solicitor from Geoff Kelly.
Document [25] is an email from the University Solicitor to Geoff Kelly dated 14 February 2005 recording developments in the investigation.
Document [29] is an email from the University Solicitor to Geoff Kelly Solicitor dated 16 February 2005, seeking instructions from Geoff Kelly.
Document [30] is a letter from Geoff Kelly to the University Solicitor dated 15 February 2005. The letter is a record of instructions received by the University Solicitor from Geoff Kelly.
Document [31] is a diary note by Jennifer O'Brien of a telephone conversation recording developments in an investigation and instructions received by the University Solicitor from Geoff Kelly.
Document [33] is a diary note by Jennifer O'Brien of a telephone conversation recording developments in an investigation and seeking instructions from Geoff Kelly.
Document [34] is a diary note by Jennifer O'Brien of telephone conversations recording developments in an investigation and seeking instructions from Glenys O'Riley.
Document [36] is an email from Geoff Kelly to the University Solicitor and Jacquie Seemann. The email is a record of instructions received by the University Solicitor from Geoff Kelly.
Document [39] are diary notes by Jennifer O'Brien dated 5 April 2005 of telephone conversations with Geoff Kelly, Sharon Litchfield and Sue Barnes recording developments in an investigation and advice by the University Solicitor to Sharon Litchfield.
Document [40] is a letter from Geoff Kelly to the Assistant University Solicitor dated 9 May 2005. The letter is a record of instructions received by the Assistant University Solicitor from Geoff Kelly.
Document [41] is a diary note by Helen Freidman of a telephone conversation recording developments in an investigation and seeking instructions from Geoff Kelly.
Document [42] are diary notes by Helen Freidman of telephone conversations recording developments in an investigation and seeking instructions from Geoff Kelly.
Document [43] are diary notes by Helen Freidman of telephone conversations recording developments in an investigation, seeking instructions from Geoff Kelly and advice from Jacquie Seemann.
Documents [45-47] inclusive are a list of reference documents, photographs, sketch plan, record of interview, allegation worksheet and statement attached to and forming part of Document [44].
Documents [51 to 54] inclusive and [56 to 58] inclusive are file notes by Geoff Kelly, emails passing between Geoff Kelly and Jennifer O'Brien, answers by Felicity Graham to questions, interview plan for Glenys O'Riley and answers to questions posed by Geoff Kelly regarding the [the boy’s] matter attached to and forming part of Document [44].
Document [59] is identified in the updated schedule as ‘medical details for [the boy] dated 1/12/2004’.
Documents [61 to 69] are an evidence matrix and investigation plan, file notes by Geoff Kelly and letters from Geoff Kelly to Jennifer O'Brien and Helen Freidman attached to and forming part of Document [44]. Document [68] is a File Note telephone call to Kyle Pitt.
Documents [71 and 72] are file notes by Geoff Kelly dated 14 December 2004 and 18 February 2005. These documents are attached to and forming part of a Child Protection Investigation Report in relation to Ann George by Lee Kelly and Associates Pty Ltd sent to Minter Ellison and dated 7 April 2005 and recording and reporting upon work undertaken, documents obtained, preliminary findings, observations and recommendations.
[Document 81 contains handwritten notes of Brigid Readford and is undated.]
(B) The documents the subject of a dual claim, i.e. both under cl 10 (Legal Professional Privilege) and a cl 13 (Confidential Information) Claim are: 5-8, 10, 16-20, 23, 26-28, 32, 35, 37, 38, 44, 48-50, 55, 57, 58, 60, 70 and 80.
Documents [5], [6], [7], and [8] are copies of risk analyses and allegation worksheets prepared by Geoff Kelly and attached to Document [4]. They are records of instructions received by the University Solicitor from Geoff Kelly.
Document [10] is a copy of an evidence matrix and investigation plan prepared by Geoff Kelly and attached to Document [9]. It is a record of instructions received by the University Solicitor from Geoff Kelly.
Documents [16 and 17] are file notes prepared by Geoff Kelly and attached to Document [15]. They are records of instructions received by the University Solicitor from Geoff Kelly.
Document [18] is an email from Geoff Kelly to the University Solicitor and Jacquie Seemann. The email is a record of instructions received by the University Solicitor from Geoff Kelly.
Documents [19 and 20] are file notes prepared by Geoff Kelly and attached to Document [18]. They are records of instructions received by the University Solicitor from Geoff Kelly.
Documents [23] is a diary note by Jennifer O'Brien of telephone conversations recording developments in an investigation and instructions received by the University Solicitor from Geoff Kelly.
Document [26] is an email from Geoff Kelly to the University Solicitor. The email is a record of instructions received by the University Solicitor from Geoff Kelly.
Document [27] is a record of an interview with the carer of the boy prepared by Geoff Kelly and attached to Document [26].
Document [28] is a diary note by Jennifer O'Brien of a telephone conversation recording matters relating to an investigation and instructions received by the University Solicitor from Kyle Pitt.
Document [32] is a copy of a letter, tax invoice and timesheet prepared by Geoff Kelly. They contain instructions received by the University Solicitor from Geoff Kelly and information concerning the cost to the University of the investigation and the professional fees of Geoff Kelly.
Document [35] is an email from the University Solicitor to Geoff Kelly dated 4 April 2005, seeking instructions from Geoff Kelly.
Document [36] is an email from Geoff Kelly to the University Solicitor and Jacquie Seemann. The email is a record of instructions received by the University Solicitor from Geoff Kelly.
Document [38] is a copy of a letter, tax invoice and timesheet prepared by Geoff Kelly. They contain instructions received by the University Solicitor from Geoff Kelly and information concerning the cost to the University of the investigation and the professional fees of Geoff Kelly.
Document [44] are Child Protection Investigation Reports in relation to Sally Howell and Kyle Pitt by Lee Kelly and Associates Pty Ltd to Minter Ellison dated 28 June 2005 recording and reporting upon work undertaken, documents obtained, preliminary findings, observations and recommendations for and on instructions from Minter Ellison.
Documents [48 to 50] inclusive are a list of reference documents, photographs, sketch plan, record of interview, allegation worksheet and statement attached to and forming part of Document [44].
Documents [55], [57] and [58] inclusive are file notes by Geoff Kelly, emails passing between Geoff Kelly and Jennifer O'Brien, answers by Felicity Graham to questions, interview plan for Glenys O'Riley and answers to questions posed by Geoff Kelly regarding [the boy’s] matter attached to and forming part of Document [44].
Documents [60] – Evidence matrix and investigation plan.
Document [70] contains Ann George's answers to questions sent by Geoff Kelly dated 20 February 2005.
Document [80] contains questions submitted to and answers by Ivy Green dated 22 February 2005.
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