McGuirk (GD) v University of New South Wales - [2007] NSWADTAP 65

No judgment structure available for this case.

Appeal Panel - Internal

CITATION: Mc Guirk (GD) v University of New South Wales [2007] NSWADTAP 65

PARTIES: APPELLANT
Gerard Michael McGuirk
RESPONDENT
University of New South Wales

FILE NUMBER: 069055

HEARING DATES: 25 May 2007

SUBMISSIONS CLOSED: 25 September 2007

DATE OF DECISION:
9 November 2007

BEFORE: Hennessy N - Magistrate (Deputy President); Britton A - Deputy President; Blake C - Non Judicial Member

CATCHWORDS: Jurisdiction - Access to documents - advance deposit and fees and charges and legal professional privilege

MATTER FOR DECISION: Prinicipal Matter

FILE NUMBER UNDER APPEAL: 053272

DATE OF DECISION UNDER APPEAL: 09/01/2006

LEGISLATION CITED: Administrative Appeals Tribunal Act 1975 (Cth)
Administrative Decisions (Judicial Review) Act 1977 (Cth)
Protected Disclosures Act 1994

CASES CITED: Cianfrano v NSW Department of Commerce [2004] NSWADT 134
Hutchinson v Director General, Roads and Traffic Authority [2004] NSWADT 48
Esso Australia Resources Ltd v Commissioner of Taxation (1999) 201 CLR 49
Daniels Corp International Pty Limited v Australian Competition and Consumer Commission (2002) 213 CLR 593
Law Society of New South Wales v General Manager, Workcover Authority of New South Wales [2004] NSWADTAP 40
Trade Practices Commission v Sterling (1979) 36 FLR 244
Mann v Carnell (1999) 201 CLR 1
Waterford v Commonwealth (1987) 163 CLR 54
AWB v Cole (No 5) [2006] FCA 1234 [218]
Industrial Equity Ltd v Deputy Commissioner of Taxation (1990) 170 CLR 649
Australian Broadcasting Tribunal v Bond (1990) 170 CLR Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
Pettitt v Dunkley [1971] 1 NSWLR 376
Public Service Board of New South Wales v Osmond (1986) 159 CLR 656
Absolon v NSW TAFE [1999] NSWCA 311
Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 149
Ebner v Official Trustee in Bankruptcy [2000] HCA 63
Li v Minister for Immigration and Multicultural Affairs (2000) 96 FCR 125
Johnson v Johnson (2000) 201 CLR 488
Lloyd v Veterinary Surgeons Investigating Committee (2005) 64 NSWLR 245
University of New South Wales v McGuirk [2006] NSWSC 1362
K v K [2000] NSWSC 1052
Neary v The Treasurer, New South Wales [2002] NSWADT 261

REPRESENTATION:
In Person
P Singleton, barrister

ORDERS: 1. Leave is granted for the appeal to be extended to the merits of the Tribunal’s decision in relation to the exercise of the discretion to give access to exempt documents; In relation to Order 1, the following directions are made:; (i) The Appellant is to file and serve any further submissions in relation to the exercise of the discretion within 28 days of the date of these reasons; (ii) The Respondent is to file and serve any submissions in reply within a further 28 days; (iii) The Appeal Panel will make a decision on the papers pursuant to s 76 of the Administrative Decisions Tribunal Act having regard to the evidence before the Tribunal and the further submissions of the parties; 2. In all other respects, the appeal is dismissed.

Introduction

1 The background to this appeal is that in December 2003 Mr McGuirk initiated prosecutions for alleged breaches of the Protected Disclosures Act 1994 against five people who were, or had been, employed by the University of New South Wales (the University). The matter was first listed before the Local Court in Newtown on 22 December 2003. Each of the defendants requested the University’s solicitor to provide him with legal assistance. Those requests were referred to Mr Andrew Mullen, Assistant University Solicitor. Mr Mullen requested that the Crown Solicitor act for the defendants in relation to the criminal proceedings. Solicitors, James Shevlin and subsequently Catherine Follent, had carriage of the matter. Counsel were briefed to represent the defendants. The trial commenced in February 2005. On the third day, an agreement was reached between the parties and the proceedings were dismissed.

2 Mr McGuirk applied to the University for access to seven documents relating to these proceedings under the Freedom of Information Act 1989 (FOI Act). After paying an advance deposit of $405, access was given to four of the documents, but denied to the remaining three documents. Those documents were:

2. Letter from Ms Follent, A/Assistant Crown Solicitor to Mr Mullen dated 4 January 2005 (2 pages – Document 6).

3. Email from Mr Mullen to Ms Follent dated 1 February 2003 (2 pages – Document 7).

3 The ground on which the University refused access to those documents was that they were exempt because they were protected by legal professional privilege: FOI Act, Schedule 1, Cl 10. The Tribunal affirmed the decision to charge an advance deposit and to refuse access to the three documents. The Tribunal also said that it did not have any discretion to grant access to the documents once it had found that they were exempt.

4 Mr McGuirk has appealed against those decisions to the Appeal Panel. He is entitled to appeal on a question of law and has also sought leave for the appeal to extend to a review of the merits of the Tribunal’s decision: Administrative Decisions Tribunal Act 1997 (ADT Act), s 113(2).

Request to disqualify for bias

5 During the hearing before the Appeal Panel, Mr McGuirk asked the presiding member, Magistrate Hennessy, to disqualify herself for bias. He gave two main reasons for making that application. Firstly, he said that she had demonstrated bias in the way she had conducted the hearing to that point by displaying a hostile frame of mind. Secondly, he said that she was a colleague of the President of the Tribunal, Judge O’Connor and that she is receiving instructions from him. He also said that Judge O’Connor does not like him and is trying to “shut him down” as a vexatious litigant. Mr McGuirk said that Magistrate Hennessy’s career in large part depends on “fitting in” with Judge O'Connor. The Tribunal determined the application at the time of the hearing. The decision was to refuse the application to disqualify Magistrate Hennessy for actual or apprehended bias. We now provide brief reasons for that decision.

6 The Tribunal must not act in a way that would cause a fair-minded observer to reasonably apprehend that the Tribunal might not bring an impartial mind to the resolution of the complaint: Ebner v Official Trustee in Bankruptcy [2000] HCA 63). In Li v Minister for Immigration and Multicultural Affairs (2000) 96 FCR 125 Drummond J summarised the principles relating to actual bias at 133-134 (citations omitted):

(b) The emphasis is upon the state of mind which affects the decision-making rather than elements of the process of decision-making taken in isolation.

(c) Proof of an intentional state of mind adverse to the party is not the only way of proving actual bias. Such bias may be subconscious, provided it is real.

(d) It is not sufficient proof of actual bias to show that the decision-maker has expressed views adverse to the party's position at an early stage of the proceedings unless there is also proof that those views were incapable of being changed in the course of the proceedings. Though relevant to proof of actual bias, displays of irritation or impatience and the use of sarcasm by the decision-maker during the hearing are not, without more, generally sufficient to establish such bias, proof of which requires a finding on a question of fact, having regard to all the circumstances of the case.’

7 During the hearing Magistrate Hennessy interrupted Mr McGuirk on several occasions to ask him to focus on his grounds of appeal. The Tribunal has power to determine its own procedure. Taking steps to keep a litigant in person on track by requesting that submissions be confined to relevant issues, does not amount to actual or apprehended bias. In this case, Magistrate Hennessy was attempting to manage the proceedings efficiently and to ensure that relevant matters were raised and irrelevant matters were put to one side. She did so firmly, but not in a manner which would cause a fair-minded observer to reasonably apprehend that the Tribunal might not bring an impartial mind to the resolution of the application.

8 Mr McGuirk’s assertion that Magistrate Hennessy is acting on instructions from Judge O’Connor is not supported by evidence. Similarly, even if Mr McGuirk could prove that Judge O’Connor does not like him and is trying to “shut him down”, that does not mean that Magistrate Hennessy is, or would be seen as, biased against him or likely to make a decision that “fits in” with Judge O’Connor’s alleged views.

Summary of Appeal Panel’s decision

9 We have decided that the Tribunal had no jurisdiction to review the decision of the University to request an advance deposit. That means that there is no need to consider the grounds of appeal that relate to that issue. We have decided that the Tribunal had jurisdiction to review the University’s decision to refuse access to the three documents in dispute and that the Tribunal made no error in affirming the decision not to give access to those documents. We have also decided not to give leave to Mr McGuirk for the appeal to extend to a review of the merits of that decision. Finally, we have decided that the Tribunal made a legal error when it found that it did not have discretion to grant access to documents once it had found that they were exempt. We have given Mr McGuirk leave to extend the appeal to a review of the merits of that decision and have decided to determine that issue ourselves after giving the parties an opportunity to provide further submissions. Our reasons for these conclusions are set out below.

Material before the Appeal Panel

10 Mr McGuirk suggested that since the Tribunal is not bound by the rules of evidence there is no need to identify the material that is before the Appeal Panel. He said that the Tribunal’s “entire file” is relevant and should be taken into account. Mr Singleton, representing the University, submitted that correspondence and other administrative documents on the file are not relevant and should not be taken into account. He added that it was necessary to identify the material to which the Appeal Panel would have regard to ensure procedural fairness. We agree with Mr Singleton’s submissions and have only had regard to the material listed below:

2. The Notice of Appeal filed on 12 September 2006.

3. The Notice in Reply filed on 30 March 2006.

4. The material before the Tribunal below, namely the:

b) letter from Mr McGuirk to the Tribunal dated 3 August 2005 together with 10 attachments,

c) statement of Andrew Mullen dated 3 November 2005 with confidential attachments.

d) statement of Michael Milne dated 3 November 2005 with attachments, and

e) letter dated 8 November 20045 from the Crown Solicitor to Craig Tanner of Maurice Blackburn Cashman Lawyers (Ex A1); letter dated 17 August 2004 from Andrew Mullen to Mr Tanner (Ex A2); letter dated 19 August 2004 from Andrew Mullen to Mr Tanner (Ex A3); letter dated 2 September 2004 from Andrew Mullen to Mr Tanner (Ex A4).

6. Supplementary submission from the University dated 24 September 2007.

11 Request for advance deposit. After Mr McGuirk applied for access to the documents the subject of the appeal on 26 May 2005, the University requested that he pay an advance deposit of $405 before continuing to deal with his application. Mr McGuirk paid that amount on 21 June 2005 and the application proceeded. By notice of determination dated 7 July 2005, the University decided to give Mr McGuirk access to four of the requested documents and to refuse access to the other three.

12 Tribunal’s decision. The Tribunal’s decision on the advance deposit issue appears at [16] to [32] of its reasons. The Tribunal assumed it had jurisdiction to review the University’s decision to request an advance deposit and affirmed that decision. Following the hearing, the Appeal Panel came to the preliminary view that the Tribunal did not have jurisdiction to review that decision. As that issue had not been raised at the hearing, the Registrar invited the parties to provide written submissions. The University provided a submission agreeing with the Appeal Panel’s preliminary view. Mr McGuirk did not provide a submission. Before determining whether the Tribunal had jurisdiction to review the University’s decision to request an advance deposit, it is useful to outline the scheme of the FOI Act, so far at it is relevant to this issue.

Overview of legislative scheme

13 Introduction. A person has the right to be given access to an agency’s documents in accordance with the provisions of the FOI Act: s 16. Applications for access to documents must be made and considered in a particular way as set out in s 17 and s 18. Sections 19 to 22 deal with matters which may arise prior to determining whether access to the requested documents should be given or refused. Those provisions relate to incomplete and wrongly directed applications, the transfer of applications to other agencies and requests for an advance deposit where the costs to the agency of dealing with an application are likely to exceed the amount of the application fee. Section 22 states that:

(3) An agency may refuse to continue dealing with an application if:

(b) payment of the deposit has not been made within the period of time specified in the request.

(b) it may retain the remainder of those deposits.

(6) A refusal to continue to deal with an application under this section is taken to be a determination that is subject to internal review under Part 3 and external review under Part 5, and the provisions of those Parts apply accordingly.

14 Acceptance phase and determination phase. The decisions made under s 19 to s 22 represent the “acceptance phase” of an application made under the FOI Act because the matters dealt with in those provisions arise prior to an agency determining whether access to the documents should be given under s 24. If an agency has refused to continue to deal with an application under s 22, it is not required to determine whether access to the document should be given: s 24(3). Once the acceptance phase is complete, s 24 obliges an agency to determine whether to give access to a document and any charge payable in respect of dealing with the application or in respect of giving access to the document. In this phase, the agency may give, refuse or defer access to a document, consider whether any charge is payable and must give notice of its determination: s 24- s 28. We refer to the second phase as the “determination phase”.

15 Source of jurisdiction. The Tribunal has jurisdiction to review a decision made under the FOI Act if that Act provides that applications may be made to it for a review of a decision or class of decisions made by an agency such as the University: ADT Act, s 38. The FOI Act identifies a decision to refuse to continue to deal with an application following non-payment of an advance deposit within a specified time as a decision which is subject to external review: s 22(6). A decision to request the payment of a deposit is not identified in s 22(6), or anywhere else in the FOI Act, as a reviewable decision.

16 In relation to decisions made in the determination phase, s 53(1) gives a “person who is aggrieved by a determination made by an agency or Minister under s 24 or 43, a right to apply to the Tribunal for a review of that determination”. (Section 43 relates to applications to amend records and is not relevant to these proceedings.) Nothing in s 53 gives a person the right to apply for an external review of a decision to request an advance deposit. Section 53(3)(iv) and (v), relating to charges which are payable or have been paid, apply to decisions made under s 24(1), not to decisions made under s 21 or s 22. Section 53(3)(iv) and (iv) state that:

(a) in the case of a determination that relates to an access application made by the person under section 17, 34 or 36-if the determination is to the effect that:

. . .

(iv) access to a document is to be given to the person subject to a charge for dealing with the access application, or for giving access to a document, that the person considers to be unreasonable, or

(v) a charge for dealing with the access application is payable by the person being a charge that the person considers to have been unreasonably incurred,

. . .

and the determination has been made as a consequence of a review under section 34 or 47 or has not been subject to a right of review under either of those sections.

17 Section 53(3)(iv) refers to a decision made under s 24(1)(b) to give access to the document subject to any charge payable in respect of the giving of access. The decision referred to in s 53(3)(v) is a decision made under s 24(1)(c) for dealing with the application. A charge may be levied whether or not access to the document is given or refused. A request for an advance deposit under s 21 is different from a decision made in the determination phase to charge an applicant for the expenses involved in dealing with an application. However, when a decision is made under s 24(1)(b) or (c) the ‘charge’ for dealing with the application will include any payments previously paid by way of advance deposit. Once the charge has been determined, an applicant will be able to challenge the reasonableness of that charge. An applicant is not entitled to internal or external review of the reasonableness of the request for an advance deposit until it becomes part of a ‘charge’ levied under s 24. This conclusion is contrary to previous decisions of the Tribunal in Cianfrano v NSW Department of Commerce [2004] NSWADT 134 at [54] and Hutchinson v Director General, Roads and Traffic Authority [2004] NSWADT 48 at [28] to [30].

18 Conclusion. The Tribunal had no jurisdiction to review the University’s decision to request an advance deposit, nor to decide whether that decision was reasonable. In addition, the Tribunal had no jurisdiction to set aside a decision if it is invalid. That is a matter for the courts when conducting a judicial review of an administrator’s decision. It follows that it is not necessary or appropriate for us to address Mr McGuirk’s grounds of appeal in relation to the request for an advance deposit.

Jurisdiction to review refusal to give access to three documents

19 Tribunal’s jurisdiction to review decision. On 11 July 2005, Mr McGuirk applied for an internal review of the University’s decision that he be given access to four documents and refused access to the three disputed documents. As the University did not conduct an internal review within 14 days, it was deemed to have made a determination refusing access to the documents: s 34(6). We refer to this decision as the “deemed decision”. On 28 July the University purported to make an internal review determination. We refer to this decision as the “delayed determination”. That determination affirmed the original decision. Mr McGuirk then applied to the Tribunal for external review. At [14] the Tribunal characterised the issue it had to determine as whether “the University’s determination that the withheld documents are exempt was the correct and preferable decision.” That issue can only relate to either the original decision or the delayed determination because the deemed decision was a decision to refuse access to all the documents, even though some of the documents had been provided.

20 Delayed decisions. In certain circumstances, the Tribunal may, on the application of the applicant, deal with the review application as if a delayed decision were a determination under section 24(1) and as if the review application were a review application against such a determination: FOI Act, s 56. Those circumstances did not apply in this case because the decision was not one of the kinds of decision set out in s 56(4) and Mr McGuirk did not apply to the Tribunal to treat the delayed determination as the reviewable decision. The remaining question is whether the Tribunal had jurisdiction to review the original decision. If not, did it have jurisdiction to review the deemed decision?

21 Submissions. Following the hearing, the Appeal Panel wrote to the parties asking them to provide written submissions as to whether the Tribunal had jurisdiction to review the decision to refuse access to the disputed documents in circumstances where a deemed decision had been made to refuse access to all seven documents. The University submitted that the Tribunal had jurisdiction to review the original determination to provide access to four documents and refuse access to the remaining three documents. It said that the prerequisites in s 53 and s 54 had been met. The University said that Mr McGuirk was an “aggrieved person” as he had been refused access to a document (s 53(3)(a)(i)); applied for internal review of the determination within the prescribed time (s 53(2)(b)); and applied to the Tribunal within time (s 54).

22 The University’s alternative submission was that the Tribunal had jurisdiction to review the deemed internal review decision. It said that that application met all the formal requirements of the FOI Act, that is, that Mr McGuirk was aggrieved by the decision, there was no need for a further internal review and the application was lodged within time. The University also said that, at least impliedly, the Tribunal identified the deemed refusal as the reviewable decision. According to the University, neither the parties, nor the Tribunal had any difficulty identifying the applications for access that the Tribunal had to re-determine. The University said that if the Tribunal is taken to have been reviewing the original determination, the deemed determination makes no difference. That decision did not change the effect of the original decision. Alternatively, if the Tribunal is taken to have been reviewing the deemed decision, then the effect of that decision was that all seven documents were withheld. That fact had no practical significance because Mr McGuirk already had four of the documents pursuant to the original determination.

23 Conclusion. The FOI Act sets out a comprehensive scheme for original decisions to be internally reviewed. Before applying to the Tribunal for external review of a decision, the applicant must have applied for internal review. A decision unfavourable to the applicant is deemed to have been made if the internal review is not completed within time. The agency or the applicant may also seek review of a delayed decision in some circumstances. The legislative scheme provides that an internal review decision (whether actual, deemed, or delayed) must be made before an applicant is entitled to apply for external review. It also provides that it is the internal review decision that is subject to external review unless the original decision is not subject to a right of internal review. Section 53 states that:

(2) A review application may not be made:

(b) if the determination has been subject to a right of review under section 34 or 47 but no application for such a review of the determination was made while it was subject to that right, or

(c) while any relevant complaint is being investigated by the Ombudsman.

(ii) access to a document is to be given to the person subject to deferral, or

(iii) access to a copy of a document from which exempt matter has been deleted is to be given to the person, or

(iv) access to a document is to be given to the person subject to a charge for dealing with the access application, or for giving access to a document, that the person considers to be unreasonable, or

(v) a charge for dealing with the access application is payable by the person being a charge that the person considers to have been unreasonably incurred, or

(ii) an agency or Minister should have, and has, taken such steps but the determination is not in accordance with the views of the person, or

and the determination has been made as a consequence of a review under section 34 or 47 or has not been subject to a right of review under either of those sections.

24 Section 53(3) defines the circumstances in which a person is “aggrieved by a determination” and therefore has a right to external review pursuant to s 53(1). One of those circumstances is where the decision is to the effect that the agency refuses to give the person access to a document: s 53(3)(a)(i). That was the effect of the deemed internal review decision in this case: s 34(6). Section 53 also requires that in order to be “aggrieved by a determination”, the determination must have been made as a consequence of a review under s 34 (or s 47) unless the determination is not subject to a right of review under either of those sections. In this case the original decision was subject to a right of internal review and Mr McGuirk exercised that right. As the University failed to determine the application within 14 days, it was taken to have made a determination under section 24 refusing access to the document to which the application relates: s 34(6). Even though the determination under s 34(6) is taken to have been made under s 24, it is still a determination that has been made as a consequence of a review under s 34 as required by s 53(3). It follows that the deemed internal review decision is a reviewable decision, but the original decision is not a reviewable decision because it does not comply with the words in italics in s 53(3) above.

25 Conclusion. We are satisfied on the basis of this analysis that the only decision that the Tribunal had jurisdiction to review was the deemed internal review decision to refuse to give access to the documents. It follows that the Tribunal made an error by purporting to review the original decision. If that error made no difference to the decision the Tribunal ultimately reached, then there is no need to set it aside: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 353 per Mason CJ. In our view the error did not affect the Tribunal’s ultimate decision because Mr McGuirk already had four of the documents pursuant to the original determination. The fact that the Tribunal reviewed the original determination made no difference to its conclusion as it did not need to decide whether or not the four documents which Mr McGuirk already had, were exempt.

Legal professional privilege

26 In relation to the three documents in dispute, the University relied on the exemption in Clause 10 of Schedule 1 to the FOI Act relating to documents subject to 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. Tribunal’s decision.

27 It was not in dispute that the principles of legal professional privilege applicable to proceedings under the FOI Act are the common law principles, rather than those enunciated by the Evidence Act 1995. A communication is protected by legal professional privilege if it is made for the dominant purpose of contemplated or pending litigation, or for obtaining or giving legal advice: Esso Australia Resources Ltd v Commissioner of Taxation (1999) 201 CLR 49 and Daniels Corp International Pty Limited v Australian Competition and Consumer Commission (2002) 213 CLR 593: Law Society of New South Wales v General Manager, Workcover Authority of New South Wales [2004] NSWADTAP 40 at [22]. The Tribunal set out its understanding of the principles of legal professional privilege at [42] – [45]:

Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission

43 In Commissioner, Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 McHugh J said at 553:

"The privilege attaches whenever the communication or material is made or recorded for the purpose of confidential use in litigation or the obtaining of confidential legal advice. The protected communication or material may be a telephone conversation between a solicitor and client, a research memo of the legal adviser on an issue pertinent to the client's affairs or, as in the present case, the collection and collation of material and documents for the purpose of litigation or obtaining legal advice. As long as the communication was made or the material recorded for the sole purpose of legal advice or pending litigation and was intended to be confidential, the actual form of the communication or recording is irrelevant."

Trade Practices Commission v Sterling

(b) Any document prepared with a view to its being used as a communication of this class, although not in fact so used. ...

(c) Communications between the various legal advisers of the client, for example between the solicitor and his partner or his city agent with a view to the client obtaining legal advice or assistance. ...

(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 or to conduct litigation on his behalf. ...

(e) Communications and documents passing between the party's solicitor and a third party if they are made or prepared when litigation is anticipated or commenced, for the purposes of the litigation, with a view to obtaining advice as to it or evidence to be used in it or information which may result in the obtaining of such evidence. ...

(f) Communications passing between the party and a third person (who is not the agent of the solicitor to receive the communication from the party) if they are made with reference to litigation either anticipated or commenced, and at the request or suggestion of the party's solicitor; or, even without any such request or suggestion, they are made for the purpose of being put before the solicitor with the object of obtaining his advice or enabling him to prosecute or defend an action. ...

(g) Knowledge, information or belief of the client derived from privileged communications made to him by his solicitor or his agent".

Waterford v Commonwealth

28 The Tribunal accepted Mr Mullen’s evidence about the role he played with respect to the defendants in the prosecutions Mr McGuirk had initiated for alleged breaches of the Protected Disclosures Act 1994 (the McGuirk v Niland & Ors matters). The Tribunal recorded Mr Mullen’s evidence at [35] to [36]:

Mr Mullen said that part of his role was to ensure that the Crown Solicitor's Office appropriately managed and conducted the defence of the criminal proceedings. He liaised with Mr Linwood and other solicitors of the Crown Solicitor's Office in respect of issues arising in the course of the criminal proceedings and ensured that all relevant persons were kept abreast of information relevant to their role in the case. His evidence places each of the withheld documents within the confines of his role as a solicitor acting for the defendants.

29 The Tribunal concluded that each of the three disputed documents fell squarely within one of the categories of legal professional privilege as outlined by Lockhart J in Trade Practices Commission v Sterling (1979) 36 FLR 244. It rejected Mr McGuirk’s assertions that Mr Mullen did not have the necessary degree of independence and that the documents had been created with the intent of furthering an illegal purpose. Mr McGuirk challenged those findings. We deal with his grounds of appeal below.

Independence

30 Mr McGuirk raised several grounds of appeal which relate to the relationship between Mr Mullen and the five defendants in the McGuirk v Niland & Ors matters. He said that the Tribunal erred when it found that Mr Mullen was able to act for both the University and the defendants without being in breach of the Law Society of New South Wales Professional Conduct and Practice Rules or the principles in Mann v Carnell (1999) 201 CLR 1. Essentially his submission was that Mr Mullen was not sufficiently independent for a claim of legal professional privilege to succeed: Waterford v Commonwealth (1987) 163 CLR 54.

31 Mr McGuirk said that the Tribunal also erred in failing to consider the evidence in relation to the culture at the University which, he asserted, prevented any employed solicitor of the University exercising a fully independent judgement in respect of legal issues. The passage to which Mr McGuirk was referring is set out below:

47 I accept Mr Mullen’s evidence in relation to the role he played with respect to the defendants in the McGuirk v Niland & Ors matter. I am satisfied that there was a solicitor-client relationship between Mr Mullen and those defendants. I also accept Mr Mullen’s evidence in relation to the circumstances surrounding the preparation and receipt of the withheld documents. I find on balance that the criteria set out in Waterford have been satisfied in regard to the withheld documents. Mr Mullen is clearly a qualified lawyer. I am satisfied that he was acting in his capacity as a professional legal adviser, in a true solicitor-client relationship with the defendants in the McGuirk v Niland & Ors matter. I am satisfied that the giving of the advice was attended by the necessary degree of independence.

32 Mr McGuirk also referred to correspondence between Mr Craig Tanner, a solicitor with Maurice Blackburn Cashman Lawyers who was acting for him in relation to the prosecutions and Mr Mullen and Mr Knight, the Crown Solicitor. The correspondence discloses that Mr Tanner had served a third party subpoena on the Vice Chancellor of the University, Mr Mark Wainwright. The Crown Solicitor wrote to Mr Tanner on 8 November 2004 in terms including the following:

I am not instructed, and have never been instructed, to act for the University in connection with this matter. I was at pains to ensure that the University received independent advice in relation to the subpoenas to which Mr McGuirk refers in his letter.

33 In relation to this evidence, the Tribunal said, at [38], that:

McGuirk v Niland & Ors

34 Mr McGuirk said that the Tribunal failed to consider or give proper weight to the evidence in this letter that the Crown Solicitor had never been instructed to act for the University in connection with the private prosecutions. The University’s response to this ground of appeal was that there is no rule that Mr Mullen, who is a solicitor, can only have one client. According to the University, as there was no conflict of the interests of the University and the five defendants, there was no reason why Mr Mullen could not act for both the University and for some of its officers.

35 Conclusion. In matters such as this neither the Tribunal, nor the Appeal Panel, has jurisdiction to determine whether Law Society of New South Wales Professional Conduct and Practice Rules have been breached. The Tribunal accepted Mr Mullen’s evidence and was correct when it noted that there was no evidence of a culture in the University which would prevent him from providing independent advice. Failing to give ‘proper weight’ to certain evidence is not an error of law. A finding of fact will not amount to an error of law except in very narrow circumstances: Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 149. Even an illogical or perverse finding will not amount to an error of law.

Evidence of improper purpose

36 One of Mr McGuirk’s submissions to the Tribunal was that legal professional privilege does not attach to documents that were created with the intention of furthering an illegal purpose. He said that the illegal purpose in this case was the suppression of criminal breaches of the Protected Disclosures Act 1994 by the defendants in the McGuirk v Niland & Ors matter. He added that public monies have been used improperly to fund legal advice and services from the Crown Solicitor's Office. At [49] and [50] of the decision, the Tribunal made the following point:

Industrial Equity Ltd v Deputy Commissioner of Taxation

In my view, Mr McGuirk has done no more than suggest that the communication was made in furtherance of an improper purpose. No evidence has been adduced which amounts to more than expressions of the personal feelings and a sense of grievance. I cannot be satisfied to the requisite standard that this was the case. In my view, the withheld documents attract legal professional privilege.

37 Presumption of regularity. Mr McGuirk submitted in relation to the Tribunal’s reference to Industrial Equity Ltd v Deputy Commissioner of Taxation (1990) 170 CLR 649, that Gaudron J was in dissent and her comment was simply obiter and therefore not binding. The issue in that case was the circumstances in which an improper purpose could be inferred in relation to a decision made under a statutory power. That was not the issue facing the Tribunal. The issue the Tribunal was addressing was whether legal professional privilege had been lost because the communications in the disputed documents had been made in furtherance of a crime or fraud, or some other illegal purpose. The presumption of regularity does not apply in those circumstances because the communication does not involve an ‘official act’ such as the exercise of a power under a statute. To the extent that the Tribunal found that the presumption of regularity was relevant to the issue it had to decide, it was in error. The correct principle is that the party alleging an illegal purpose must present a prima facie case to support the allegations. It is not necessary to prove an illegal purpose on the balance of probabilities: AWB v Cole (No 5) [2006] FCA 1234 [218] per Young J.

38 The Tribunal applied the correct principle at [50] when it found that Mr McGuirk had “done no more than suggest that the communication was made in furtherance of an improper purpose.” Given that finding, the Tribunal’s error in referring to the presumption of regularity does not justify the decision being set aside because the decision would have been the same even if the error had not been made: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 353 per Mason CJ).

39 Evidence of wrong doing. Mr McGuirk challenged the Tribunal’s finding that he had “done no more than suggest that the communication was made in furtherance of an improper purpose”. The illegal or improper purpose which Mr McGuirk said had motivated the University was the suppression of criminal breaches of the Protected Disclosures Act by the defendants in the McGuirk v Niland & Ors matter. It was open to the Tribunal to find that Mr McGuirk did no more than suggest or allege that such a purpose was present. Mr McGuirk said that the Tribunal is not bound by the rules of evidence and the material he put before the Tribunal is sufficient to prove his allegations: ADT Act, s 73(2). While the Tribunal is not bound by the rules of evidence, that does not mean that it is bound to accept every uncontradicted assertion made by a party. The Tribunal admitted the evidence on which Mr McGuirk sought to rely and concluded that it was not sufficient. None of the evidence Mr McGuirk presented established, even at a prima facie level, that the communications were in furtherance of an improper purpose.

40 Mr McGuirk said that if that evidence was not sufficient he could provide the Appeal Panel with further evidence of wrong doing. It would be procedurally unfair to allow Mr McGuirk to submit further evidence when he had ample opportunity to adduce evidence before the Tribunal.

Inadequacy of reasons

41 A more general ground of appeal raised by Mr McGuirk was that the Tribunal failed to give adequate reasons for its decision. Mr McGuirk cited the statements in italics in the following passages as examples of the Tribunal’s inadequate reasons.

McGuirk v Niland & Ors

I am satisfied that the giving of the advice was attended by the necessary degree of independence.

. . .

51 It is therefore necessary to determine whether that legal professional privilege has been waived. Legal professional privilege is for the benefit of the client and it is the client who may waive this privilege. Mann v Carnell at [28] - [29] establishes the principle that privilege is waived if there is inconsistency between the conduct of the client and maintenance of the confidentiality. I do not agree with Mr McGuirk’s assertion that the privilege has been waived. (Italics added.)

42 Section 89(2) of the ADT Act imposes a duty on the Tribunal to give reasons, either orally or in writing. Apart from the situation where a party requests written reasons for an oral decision, the Tribunal is not obliged by statute to give "adequate" reasons. Even though there is no statutory requirement governing the adequacy of reasons given under s 89(2), common law principles are relevant. At common law, there is now a judicial duty to give adequate reasons: see, for example, Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 269-70; Pettitt v Dunkley [1971] 1 NSWLR 376; Public Service Board of New South Wales v Osmond (1986) 159 CLR 656; Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430. That duty appears to apply to tribunals as well as courts: Absolon v NSW TAFE [1999] NSWCA 311. However, the Tribunal does not need to refer to all the evidence or to indicate what evidence it accepts and what evidence it rejects: Wiki v Atlantis Relocations (NSW) Pty Ltd (2004) 60 NSWLR 127 at 135-136 per Ipp JA, with whom Bryson JA and Stein AJA agreed.

43 The Tribunal’s conclusion that the advice given by Mr Mullen was attended by the necessary degree of independence was based on its acceptance of Mr Mullen’s evidence of the role he played in the litigation. The Tribunal’s reasons were adequate.

44 The Tribunal did not accept Mr McGuirk’s submission that the privilege had been waived. Mr McGuirk said that waiver came about because confidentiality was not maintained as the documents were shared with a third party, namely the University. Although the Tribunal did not say so expressly, it implied in [51], that even if documents were shared with the University, that did not amount to an inconsistency between the conduct of the client and maintenance of the confidentiality. While it may have been desirable for the Tribunal to elaborate on its reasons, we do not consider that a failure to do so is significant enough to amount to an error of law. The Tribunal’s reasons adequately explain why Mr McGuirk’s application was unsuccessful.

Bias– competency of Tribunal member

45 A further ground of appeal was that the Tribunal at first instance had breached the rule against bias. Mr McGuirk relied on the High Court’s decision in Johnson v Johnson (2000) 201 CLR 488 referring to the International Covenant on Civil and Political Rights (ICCPR) to submit that the Tribunal was in breach of the rules of procedural fairness because it was not a “competent independent and impartial tribunal established by law.” According to Mr McGuirk, the Tribunal Member hearing this case at first instance, Mr Montgomery, is not competent and a review of his decisions over the last three years would support that assertion.

46 The phrase “competent independent and impartial tribunal established by law” is taken from the ICCPR and is referred to in the following passage of the High Court’s decision in Johnson v Johnson at 501:

"All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent independent and impartial tribunal established by law."

47 The High Court is referring in this passage to the second limb of the rule of procedural fairness, that is, the rule against bias. It is firmly established in the Australian context that a decision maker should be, and should be seen to be, impartial and independent: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337. The High Court was making the point in Johnson v Johnson (2000) 201 CLR 488 that the principle that every adjudicator should be free from bias has also been accepted in the international law of human rights. In that context, the expression includes the notion of a “competent” tribunal. The use of that term in the ICCPR does not mean that an Australian tribunal member should be disqualified unless he or she displays a particular level of competence. The only qualification for appointment as a judicial member is that the person either “holds or has held a judicial office” or is “an Australian lawyer (within the meaning of the Legal Profession Act 2004) of at least 7 years standing”: ADT Act, s 17. Consequently, this ground of appeal fails.

Discretion to give access to exempt documents

48 McGuirk said that the Tribunal asked itself the wrong question at [14] when it said that the issue in relation to legal professional privilege was “whether the University’s determination that the withheld documents are exempt was the correct and preferable decision”. He also said that the Tribunal had failed to determine the “correct and preferable” decision in accordance with s 63(1) of the ADT Act and had failed to exercise all the functions conferred on the University when making the decision: ADT Act, s 63(2). We understand these grounds of appeal to refer to the Tribunal’s finding at [53] that:

Neary v The Treasurer, New South Wales

49 Since the Tribunal handed down its decision, the Supreme Court decided in University of New South Wales v McGuirk [2006] NSWSC 1362 at [102] per Nicholas J, that s 63 of the ADT Act provides the Tribunal with a discretion “to order access to be given to documents which are exempt documents under the FOI Act if it decides that to do so is the correct and preferable decision with regard to the material then before it.” Previously, the view had been taken in several cases including Neary v The Treasurer, New South Wales [2002] NSWADT 261 that it was not open to applicants for review to seek an order that an agency release an otherwise exempt document.

50 It follows that the Tribunal made an error of law in coming to the conclusion that it had no discretion to grant access to exempt documents. The parties have already put forward many of the public policy considerations in relation to the question of whether the documents should disclosed. We consider that this issue can be adequately determined on the basis of any further written submissions, in the absence of the parties: ADT Act, s 76.

Extension to the merits

51 Mr McGuirk requested that leave be granted for the appeal to be extended to the merits of the Tribunal’s decision: ADT Act, s 113(2)(b). In Lloyd v Veterinary Surgeons Investigating Committee [2005] NSWCA 456, the Court of Appeal held that an Appeal Panel may grant leave for an appeal to extend to the merits without having first decided that an error of law exists or may exist in the decision under appeal.

52 Despite the extent of Mr McGuirk’s concern about the Tribunal’s fact finding process, we are not persuaded that the way the Tribunal went about that process was so unfair or unorthodox a manner that it would be in the interests of justice for it to be reviewed: K v K [2000] NSWSC 1052 per Young J at [15]. The Tribunal took into account Mr McGuirk’s evidence but did not agree with him about the inferences he said should be drawn from that evidence. The fact that the Tribunal did not agree with Mr McGuirk that such inferences should be drawn, does not justify extending the appeal to the merits of the Tribunal’s decision. The appeal is extended to the merits only in relation to the exercise of the discretion to give access to exempt documents.

Orders

In relation to Order 1, the following directions are made:

(ii) The Respondent is to file and serve any submissions in reply within a further 28 days.

(iii) The Appeal Panel will make a decision on the papers pursuant to s 76 of the Administrative Decisions Tribunal Act having regard to the evidence before the Tribunal and the further submissions of the parties.

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Citations

McGuirk (GD) v University of New South Wales [2007] NSWADTAP 65

Most Recent Citation

McGuirk v University of New South Wales [2007] NSWADT 270

Cases Citing This Decision

9

Bilquip Pty Ltd, Illmat Pty Ltd, Holibass Pty Ltd v Chief Commissioner of State Revenue (NSW) (Rd) [2013] NSWADTAP 36

McGuirk v University of New South Wales [2009] NSWADTAP 12

McGuirk v University of New South Wales (No 2) [2008] NSWADTAP 12

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31

Statutory Material Cited

3

Ebner v Official Trustee in Bankruptcy [2000] HCA 63

Li v Minister for Immigration and Multicultural Affairs [2000] FCA 19

CITATION:	Mc Guirk (GD) v University of New South Wales [2007] NSWADTAP 65
PARTIES:	APPELLANT Gerard Michael McGuirk RESPONDENT University of New South Wales
FILE NUMBER:	069055
HEARING DATES:	25 May 2007
SUBMISSIONS CLOSED:	25 September 2007
DATE OF DECISION:	9 November 2007
BEFORE:	Hennessy N - Magistrate (Deputy President); Britton A - Deputy President; Blake C - Non Judicial Member
CATCHWORDS:	Jurisdiction - Access to documents - advance deposit and fees and charges and legal professional privilege
MATTER FOR DECISION:	Prinicipal Matter
FILE NUMBER UNDER APPEAL:	053272
DATE OF DECISION UNDER APPEAL:	09/01/2006
LEGISLATION CITED:	Administrative Appeals Tribunal Act 1975 (Cth) Administrative Decisions (Judicial Review) Act 1977 (Cth) Protected Disclosures Act 1994
CASES CITED:	Cianfrano v NSW Department of Commerce [2004] NSWADT 134 Hutchinson v Director General, Roads and Traffic Authority [2004] NSWADT 48 Esso Australia Resources Ltd v Commissioner of Taxation (1999) 201 CLR 49 Daniels Corp International Pty Limited v Australian Competition and Consumer Commission (2002) 213 CLR 593 Law Society of New South Wales v General Manager, Workcover Authority of New South Wales [2004] NSWADTAP 40 Trade Practices Commission v Sterling (1979) 36 FLR 244 Mann v Carnell (1999) 201 CLR 1 Waterford v Commonwealth (1987) 163 CLR 54 AWB v Cole (No 5) [2006] FCA 1234 [218] Industrial Equity Ltd v Deputy Commissioner of Taxation (1990) 170 CLR 649 Australian Broadcasting Tribunal v Bond (1990) 170 CLR Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 Pettitt v Dunkley [1971] 1 NSWLR 376 Public Service Board of New South Wales v Osmond (1986) 159 CLR 656 Absolon v NSW TAFE [1999] NSWCA 311 Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 149 Ebner v Official Trustee in Bankruptcy [2000] HCA 63 Li v Minister for Immigration and Multicultural Affairs (2000) 96 FCR 125 Johnson v Johnson (2000) 201 CLR 488 Lloyd v Veterinary Surgeons Investigating Committee (2005) 64 NSWLR 245 University of New South Wales v McGuirk [2006] NSWSC 1362 K v K [2000] NSWSC 1052 Neary v The Treasurer, New South Wales [2002] NSWADT 261
REPRESENTATION:	In Person P Singleton, barrister
ORDERS:	1. Leave is granted for the appeal to be extended to the merits of the Tribunal’s decision in relation to the exercise of the discretion to give access to exempt documents; In relation to Order 1, the following directions are made:; (i) The Appellant is to file and serve any further submissions in relation to the exercise of the discretion within 28 days of the date of these reasons; (ii) The Respondent is to file and serve any submissions in reply within a further 28 days; (iii) The Appeal Panel will make a decision on the papers pursuant to s 76 of the Administrative Decisions Tribunal Act having regard to the evidence before the Tribunal and the further submissions of the parties; 2. In all other respects, the appeal is dismissed.