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…
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Details
- Case
- [2008] NSWADTAP 46
- Decision Date
CaseChat Overview and Summary
Macquarie University appealed to the NSW Court of Appeal against a decision of the Information and Privacy Commission of NSW (Commission) that upheld a decision by the Information Principal Officer (IPO) that certain documents be released under the Freedom of Information Act 1989 (FOI Act). Howell cross-appealed against the Commission’s finding that certain documents were exempt from release under cl 10 of the FOI Act. The University argued that the Commission erred in finding that the advice privilege did not apply to the documents and that the Commission erred in finding that cl 13 did not apply to the documents. Howell argued that the Commission erred in finding that the advice privilege applied to the documents. The court was required to determine the scope of the advice privilege and whether it applied to documents relating to the conduct of an investigation into a complaint of misconduct. The court was also required to determine whether the Commission misapplied cl 13 of the FOI Act.
The court held that the advice privilege did not apply to the documents as the dominant purpose of the documents was not for the purpose of advice. The court held that the Commission misapplied cl 13 of the FOI Act in that it did not properly apply the requirements of cl 13. The court found that the Commission had erred in finding that cl 13 did not apply to the documents. The court allowed the appeal in part and set aside certain orders of the Commission. The court granted leave to extend the appeal to the merits in respect of all documents the subject of a claim for exemption on the basis of cl 13. The appeal was to be listed for further directions.
The court held that the advice privilege did not apply to the documents as the dominant purpose of the documents was not for the purpose of advice. The court held that the Commission misapplied cl 13 of the FOI Act in that it did not properly apply the requirements of cl 13. The court found that the Commission had erred in finding that cl 13 did not apply to the documents. The court allowed the appeal in part and set aside certain orders of the Commission. The court granted leave to extend the appeal to the merits in respect of all documents the subject of a claim for exemption on the basis of cl 13. The appeal was to be listed for further directions.
Orders
Orders of the court
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.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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