McGuirk v Director-General, Attorney General's Department

[2006] NSWADT 265

Pending Appeal:

CITATION:	McGuirk v Director-General, Attorney General's Department [2006] NSWADT 265
DIVISION:	General Division
PARTIES:	APPLICANT Gerard Michael McGuirk RESPONDENT Director-General, Attorney General's Department
FILE NUMBER:	053361 and 053237
HEARING DATES:	10/03/2006
SUBMISSIONS CLOSED:	03/10/2006
DATE OF DECISION:	09/12/2006
BEFORE:	Montgomery S - Judicial Member
CATCHWORDS:	access to documents - legal professional privilege - Freedom of Information Act - access to documents - legal professional privilege
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989 Independent Commission Against Corruption Act 1988 Protected Disclosures Act 1994
CASES CITED:	Attorney General (NT) v. Maurice (1986) 161 CLR Attorney-General (NT) v Kearney (1985) 158 CLR 500 Baker v Campbell (1983) 49 ALR 385 Candacal Pty Ltd v Industry Research and Development Board [2005] FCA 649 Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 DSE (Holdings) Pty Ltd v Intertan Inc (2003) 203 ALR 348 Industrial Equity Ltd v Deputy Commissioner of Taxation (1990) 170 CLR 649 Kang v Kwan & 2 Ors [2001] NSWSC 698 Mann v Carnell (l999) 201 CLR 1 McGuirk v University of New South Wales [2006] NSWADT 256 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449 Pratt Holdings Ply Ltd v Commissioner of Taxation (2004) 207 ALR Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Public Sector Management Office and anor [2004] NSWIRComm 209 Trade Practices Commission v Sterling (1979) 36 FLR 244 Varawa v Howard Smith & Co Ltd [1910] 10 CLR 382
REPRESENTATION:	APPLICANT In person RESPONDENT A Johnson, Solicitor
ORDERS:	The decisions under review are affirmed

1 These matters relate to two separate applications by Mr McGuirk to the Attorney General’s Department (“the Department”) for access to certain documents under the Freedom of Information Act 1989 (“the FOI Act”). The matters are related and were heard together with evidence in one accepted as evidence in the other. They each involve similar issues for determination.

2 In 2003 Mr McGuirk commenced private criminal prosecutions ("the criminal proceedings") against 5 senior employees or former employees of the University of New South Wales (“UNSW” or “the University”): Professor John Niland (former Vice-Chancellor of UNSW), Professor John Ingleson (a Deputy Vice-Chancellor of UNSW), Professor Greg Whittred (Dean of the Faculty of Commerce and Economics at UNSW), Emeritus Professor Roger Layton (former Dean of the Faculty of Commerce and Economics at UNSW) and Mr Neil Morris (Director of Human Resources at UNSW) ("the defendants").

Matter No 053237

3 By way of an application dated 11 April 2005 Mr McGuirk sought:

"1.Copies of correspondence with the Crown Solicitor's Office (CSO) in regard to the cost of providing material subpoenaed by the CSO in regard to the McGuirk v Niland & Ors matter.

2. Copies of all correspondence between the Crown Solicitor's Office and the University of New South Wales in regard to the legal costs, and the payment of these legal cost, associated with the defence of Professors John Niland, John Ingleson, Roger Layton, Greg Whittred and Mr Neil Morris in the McGuirk v Niland & Ors matter concluded in the Downing Street Local Court on Friday 11 February 2005.

3. Copies of any applications for ex gratia assistance for legal representation made by Professors John Niland, John Ingleson, Roger Layton, Greg Whittred and MrNeil Morris in relation to the above matter, in accordance with the 'Guidelines for the Provision of Ex Gratia Assistance for Legal Representation for Ministers of the Crown, Public Officials and Crown Employees."

4 The Department did not make a decision in relation to Mr McGuirk's application within 21 days and was deemed to have refused that application. Mr McGuirk sought an internal review of the Department's decision. The Director General of the Department determined the internal review application and concluded that all of the documents held by the agency were exempt under either clause 7 or clause 10 of Schedule 1 to the FOI Act. Mr McGuirk sought review of the Director General's decision by this Tribunal. A number of documents were subsequently released to Mr McGuirk however the Department maintains it assertion that the remainder of the documents in question are exempt under clause 10 of Schedule 1 to the FOI Act.

Matter No 053361

5 On 17 July 2005, Mr McGuirk applied for access to the following documents:

"l. Copies of all correspondence between the Crown Solicitor and the University of New South Wales in regard to the representation by the Crown Solicitor of Professor John Niland, Professor John Ingleson, Professor Greg Whittred, Professor Roger Layton and Mr Neil Morris ("Niland et al.") in the McGuirk v Niland & Ors matter which was heard in the Downing Street Local Court on 9, 10 and 11 February 2005.

2. Copies of all correspondence between the Crown Solicitor and Professor John Ingleson, Professor Greg Whittred and/or Mr Neil Morris in regard to their representation by the Crown Solicitor in accordance with Section 48(1)(g) of the Legal Profession Act 1987 in the McGuirk v Niland & Ors matter.

3. Copies of all correspondence between the Crown Solicitor and Professor John Niland and/or Professor Roger Layton in regard to their representation by the Crown Solicitor in accordance with Section 48(1)(g) of the Legal Profession Act 1987 in the McGuirk v Niland & Ors matter.

4. Copy of the application (or applications) made by the Crown Solicitor to the Attorney General seeking the approval of the Attorney General for the Crown Solicitor to represent Professors John Niland and Roger Layton in accordance with Section 48(1)(g) of the Legal Profession Act 1987 in the McGuirk v Niland & Ors matter, and the response (or responses) from the Attorney General.

5. Copies of any documents showing a line of delegation from the Attorney General to the Solicitor General which would enable the Solicitor General to approve on behalf of the Attorney General the representation of Professors John Niland and Roger Layton by the Crown Solicitor in the McGuirk v Niland & Ors matter.

6. Copies of any internal memoranda, emails, file notes, minutes of meetings and other similar documentation held by the Crown Solicitor in regard to the representation of Niland et al. by the Crown Solicitor in the McGuirk v Niland & Ors matter."

6 The Department's Acting Director of Community Relations determined that 40 documents fell within the scope of the request. He determined that 7 of those documents should be released in whole, 1 document should be released in part and the remainder were exempt in whole. Mr McGuirk applied for an internal review of the determination. The Director General determined the internal review application and concluded that no additional documents were to be released. Mr McGuirk applied for a review of the Director-General's decision by this Tribunal.

The issues

7 The Tribunal’s role is to determine the correct and preferable decision. In reaching that decision it is necessary to determine whether legal professional privilege applied to the documents in question. If so, it is necessary to determine whether the privilege has been lost. If legal professional privilege applied to the documents and has not been lost, it is then necessary to determine whether the documents should be released despite their being privileged. A copy of each of the documents in question has been provided to the Tribunal on a confidential basis.

8 Mr McGuirk asserts legal professional privilege cannot apply to the documents. He has made several assertions with respect to the Department’s claim. He says that the correspondence he is seeking is between the Crown Solicitor's Office (“the CSO”) and the University, not between the CSO and the defendants. He asserts that if a solicitor-client relationship existed it was between the CSO and the defendants. He says there was no such relationship between the CSO and the University and therefore legal professional privilege cannot apply to correspondence between them.

9 Mr McGuirk also asserts that legal professional privilege cannot apply to the correspondence because it was created in furtherance of an improper purpose.

Applicable legislation

10 Section 5 of the FOI Act provides that the objects of the FOI Act are to extend, as far as possible, the rights of the public to obtain access to information held by the Government. The legally enforceable right to be given access to documents held by the Government, is subject only to such restrictions as are reasonably necessary for the proper administration of the Government. The discretions conferred by the FOI Act shall be exercised, as far as possible, so as to facilitate and encourage the disclosure of information. Section 16 of the FOI Act provides that a person has a legally enforceable right to be given access to an agency's documents in accordance with the FOI Act.

11 Subsection 25(1) of the FOI Act allows an agency to refuse access to an exempt document in certain circumstances, including where a document is an "exempt" document as defined in the FOI Act. Subsection 25(4) of the FOI Act provides that an agency shall not refuse access to an exempt document if it is practicable to give access to a copy of the document from which the exempt matter has been deleted and if it appears to the agency that the applicant would wish to be given access to such a copy. Pursuant to section 61 of the FOI Act the agency has the burden of establishing that its determination was justified.

12 Clause 10 of Schedule 1 to the FOI Act provides:

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.

13 The Department asserts a claim of legal professional privilege for the following categories of documents.

A. Correspondence from Andrew Mullen to staff of the Crown Solicitor's Office providing information, instructions or seeking advice or updates

Documents 5, 8, 10, 11, 13, 19, 20, 31 of 053361

Documents 2, 23 of 053237

B. Correspondence from staff of the Crown Solicitor's Office to Andrew Mullen seeking instructions or providing updates on the progress of the matter of 053237

Documents 6, 12, 16, 17, 21, 36, 39 of 053361

Documents 1, 3, 16, 27

C. File notes of telephone conversations between staff of the Crown Solicitor's Office and Andrew Mullen, the defendants or counsel

Documents 8, 24, 29, 33, 34, 35 of 053361

Document 11, 13, 18, 19 of 053237

D. File notes of court appearances

Document 15 of 053361

E. Correspondence from the Crown Solicitor's Office staff to counsel briefed by the Crown Solicitor

Document 15, 21 of 053237

F. Correspondence from counsel briefed by the Crown Solicitor to staff of the Crown Solicitor's Office

Document 9, 20 of 053237

G. File notes of telephone conversations between staff of the Crown Solicitor's Office and representatives of the prosecutor

Documents 14, 15 of 053361

H. Internal memos or emails between staff of the Crown Solicitor's Office in relation to the conduct of the proceedings

Documents 6, 8, 11, 18, 22,26,27 of 053361

Document 14 of 053237

I. Submissions to the Attorney General or file notes of discussions with the Attorney-General's representatives

Documents 1, 2, 3, 4, 23, 37 of 053361

Documents 24 of 053237

14 The Department refers to the decision in Trade Practices Commission v Sterling (1979) 36 FLR 244 at 245-246 where Lockhart J outlined the categories of legal professional privilege 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. …

(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”.

15 The Department contends that each of the documents falls within the categories outlined in Sterling. It says the Crown Solicitor was in a solicitor-client relationship with the defendants. It says that the defendants instructed the Crown Solicitor through Mr Andrew Mullen, a solicitor employed by the University. Ms Johnson referred to the copies of the documents in question that have been filed and urged the Tribunal to assess those documents and determine whether the documents would be privileged from production in legal proceedings. She submits that the Tribunal would have no difficulty in forming that view and therefore that they are exempt under clause 10 of Schedule 1 to the FOI Act. Ms Johnson argues that it is clear that Mr Mullen was acting either as an agent for the defendants or he was in a solicitor-client relationship with the defendants. In either case, the withheld documents would be privileged. Correspondence between one solicitor acting for the defendants and another solicitor acting for the defendants is privileged. Similarly, correspondence between a solicitor acting for the defendants and an agent for the defendants is privileged.

16 Ms Johnson referred to DSE (Holdings) Pty Ltd v Intertan Inc (2003) 203 ALR 348, where at [91] Allsop J considered it obvious that a third party acting as a messenger would not waive privilege:

"Of course, it would go without saying that the use of the third party as a messenger and in that sense as an agent for communication would be privileged."

17 At [94] Allsop J concluded that such a messenger did not even need to be limited to simply passing on information, as long as the communication between the third party and the solicitor could be taken to be the same as a communication between the client and the solicitor.

18 Ms Johnson submits that the nature of the function that Mr Mullen performed for the defendants was the relevant consideration, rather than the nature of the relationship between them. If the function was to enable the defendants to obtain the legal advice they needed, there was no reason why privilege should not attach to the documents: Pratt Holdings Ply Ltd v Commissioner of Taxation (2004) 207 ALR 217

19 Ms Johnson argues that the CSO was instructed to assist the defendants in relation to the prosecution that Mr McGuirk had commenced against them. She referred to the decision of Gaudron J in Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 where she stated at 545 (footnotes omitted):

Communications made in furtherance of future wrongdoing fall outside legal professional privilege, although there is no particularly precise statement as to the nature of the wrongdoing that produces that result. However, legal professional privilege clearly extends to the situation in which a person seeks advice with respect to past misdeeds. And, once that is accepted, it follows that copy documents which relate to those misdeeds are in no different position from other copy documents provided to a lawyer for the purpose of obtaining legal advice or for use in legal proceedings. Thus, they are privileged if they were made solely for one or other of those purposes.

20 Ms Johnson concedes that an illegal or improper purpose may mean that a communication is denied the protection of privilege however the Tribunal could not be satisfied that that is the case in these matters. She referred to Propend where Brennan CJ stated at 514 (footnotes omitted):

In determining whether a claim of legal professional privilege can be upheld, it is open to the party resisting the claim to show reasonable grounds for believing that the communication effected by the document for which legal professional privilege is claimed was made for some illegal or improper purpose, that is, some purpose that is contrary to the public interest. I state the criterion as “reasonable grounds for believing” because (a) the test is objective and (b) it is not necessary to prove the ulterior purpose but there has to be something “to give colour to the charge”, a “prima facie case” that the communication is made for an ulterior purpose. The purposes that deny the protection of privilege for a communication (whether documentary or oral) between a client and the client's solicitor or counsel include43 the furthering of the commission of an offence.

21 Ms Johnson submits that the relevant issue is the reason for which advice was sought. If it was in furtherance of an improper purpose then the communications will not attract privilege. However, she argues that the defendants instructed the CSO to defend the case brought against them. She says that the prior conduct of the defendants cannot affect the privilege. That behaviour, even if it was improper, was certainly not done on the CSO’s advice, because the behaviour pre-dated the CSO’s instructions. Ms Johnson submits that anything done by the defendants prior to the institution of the applicant's prosecution is therefore irrelevant.

22 She further argues that it cannot be correct to say that seeking legal advice and instructing counsel to defend oneself against a prosecution is improper. A defendant is always entitled to test the prosecution's case. Further, there could be nothing improper in the University paying for the legal costs incurred by the defendants in defending the prosecution proceedings. She says that the guidelines on the granting of ex gratia assistance for legal representation make it plain that the costs of ex gratia assistance are to be met from the relevant Departmental budget. Thus, even if the grant of assistance had been pursued by the University, the University would still have paid for the defendants' legal costs.

23 Mr Mullen provided a statement that was admitted into evidence, appeared at the hearing and was cross-examined by Mr McGuirk. Mr Mullen gave evidence in relation to his position at the University, the role he played with respect to the defendants and the circumstances surrounding the preparation and receipt of the withheld documents.

24 He stated that he provided a number of legal services to the defendants, along with several other legal advisors, and that he understood that the CSO was acting for the defendants and not the University. Mr Mullen also gave evidence of the assistance that he provided to the CSO to allow the CSO to defend the prosecution.

25 The Department also relies on evidence from Mr Ian Linwood, Assistant Crown Solicitor in the CSO Criminal Law Practice Group, and Ms Catherine Follent, a solicitor employed at the CSO. Each provided statements that were admitted into evidence, appeared at the hearing and were cross-examined by Mr McGuirk.

26 Mr Linwood’s evidence was largely concerned with the approach taken by the Department with respect to granting of legal assistance. Ms Follent gave evidence with respect to her dealings with the defendants, other legal advisers and with Mr Mullen. Their evidence supports the Department’s general contentions with respect to the respective roles of the CSO and Mr Mullen and they each denied any impropriety in relation to their roles.

27 With respect to the evidence required to prove improper purpose, Ms Johnson referred to the decision in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449, where the High Court considered the standard to which serious allegations in civil proceedings should be proved. Mason CJ, Brennan, Deane and Gaudron JJ stated at 450 (footnotes omitted):

[T]he strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear proof is necessary "where so serious a matter as fraud is to be found". Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.

28 In Candacal Pty Ltd v Industry Research and Development Board [2005] FCA 649 Lee J stated that a party relying upon the ground that the purpose of bringing the communications into existence is an improper purpose to oppose a claim of privilege made in respect of such communications must be able to show reasonable grounds for believing that such an improper purpose underlay the creation of the communications. His Honour concluded at [122]:

122 Such a claim when made is of a serious nature and it must follow that the material presented in support must appear to have cogency and be sufficient to establish prima facie that the claim is made out. Whilst I am satisfied that the claim by the applicants is open on the material referred to and that the claim has been made honestly, I am not satisfied that it is shown to the requisite degree that agents of the Board undertook communications with legal practitioners for an ulterior and improper purpose.

29 With respect to Mr McGuirk’s contention that the conduct of the prosecution was oppressive because the defendants had greater resources than he had, Ms Johnson submits that the differences in the financial resources of parties to court proceedings could not of itself be sufficient to establish impropriety, even where that means that delays in court proceedings have a greater impact on one party. She submits that Mr McGuirk has not put on evidence that could allow the Tribunal to conclude that the way in which the prosecution was defended was improper.

30 Ms Johnson submits that the seriousness of claiming that the opposing party has obtained legal advice with a view to furthering an improper purpose means that even if the claim is open on the material that is not enough. Mr McGuirk must be able to put cogent and reasonable evidence before the Tribunal which is sufficient to demonstrate a prima facie case of improper purpose on the part of the person seeking legal advice. She further submits that the seriousness of Mr McGuirk's allegations quite properly imposes a significant burden on him to prove improper purpose in this case, and that he has not discharged that burden.

Mr McGuirk’s Case

31 Mr McGuirk challenged the Department’s claim that the withheld documents are subject to legal professional privilege. He says that legal professional privilege simply does not apply in respect of some of the documents to which access is sought. In respect of those documents to which privilege would otherwise apply, the claim is challenged for the following reasons: firstly, he says that any privilege has been waived by disclosure to a third party, viz. the University; and secondly, he says that the communications were made in furtherance of one or more improper purposes.

32 Mr McGuirk contends that as there was no lawyer-client relationship between the CSO and the University, the issue of legal privilege does not arise in regard to these documents. The University was a separate legal entity from the defendants. He says that the defendants chose to disclose all their communications with the CSO to the University in circumstances where there was no compulsion or necessity for them to do so, and that this was voluntary disclosure of legal advice by the defendants to a third party.

33 He submits that legal professional privilege is that of the client and not of the legal adviser. It may be waived by the client but not by the lawyer: Baker v Campbell (1983) 49 ALR 385; Attorney General (NT) v. Maurice (1986) 161 CLR 475. Mr McGuirk also relies on the High Court decision in Mann v Carnell (l999) 201 CLR 1 as authority for the principle that legal professional privilege exists to protect the confidentiality of communications between lawyer and client and that waiver is brought about by the inconsistency between the conduct of the owner of the privilege and maintenance of the confidentiality. He submits that disclosure to the University as a third party is inconsistent with maintenance of confidentiality.

34 Privilege is waived if there is inconsistency between the conduct of the client and maintenance of the confidentiality (Mann v Carnell at [28]). Waiver can be express or implied and where it is implied, the question is whether the requisite inconsistency exists, whatever the client's subjective intention may be (Mann v Carnell at [29]). Although, in some circumstances, the concept of fairness may be relevant (Mann v Carnell at [34]), "[w]hat brings about the waiver is the inconsistency, which the courts, where necessary informed by considerations of fairness, perceive, between the conduct of the client and maintenance of the confidentiality; not some overriding principle of fairness operating at large" (Mann v Carnell at [29]).

35 Mr McGuirk made specific allegations of improper conduct against the defendants. These included allegations of a course of action designed to frustrate the intent of the Protected Disclosures Act 1994 and to oppress people who make Protected Disclosures; alleged actions in breach of the University Code of Conduct, relevant University policies and procedures and the Higher Education Contract of Employment Award 1998; and the contention that the defendants avoided personal liability for the costs associated with the legal action by the payment of their legal expenses in breach of the Premier's Memorandum 99-11 and the "Guidelines for the Provision of Ex Gratia Assistance for Legal Representation for Ministers of the Crown, Public Officials and Crown Employees" (“the Guidelines”).

36 Mr McGuirk says that the passages from Propend to which Ms Johnson referred are of no relevance to this matter. He seeks to rely upon the passage of O'Conner J in Varawa v Howard Smith & Co Ltd [1910] 10 CLR 382 at 386:

"The result of these authorities I take to be this, that the privilege will not be lost unless in the course of the proceeding in which the evidence is tendered it is definitely charged that the communication was in itself a step in the commission of a crime or preparatory to or in aid of the commission of a crime. The same rule applies where the communication is a step in, or preparatory to, or in aid of what has been called 'civil fraud,' that is the carrying out of a fraud not amounting to a crime, but in respect of which the Civil Courts will give relief. A communication made under any of those circumstances loses the privilege, and it is immaterial whether the solicitor was or was not aware of the criminal or fraudulent purpose of the communication at the time when the communications were going on."

37 He argues that where a challenge is mounted to a claim of legal professional privilege on the basis that the communication was made in furtherance of an improper purpose, the onus lies on the person making that claim to show 'reasonable grounds'. He referred to views expressed by Santow J in Kang v Kwan & 2 Ors [2001] NSWSC 698, where he stated:

4. At common law a party seeking to resist a claim for legal professional privilege, based on the communication being to facilitate crime or fraud, need show reasonable grounds for believing that the communication between solicitor and client was one made in furtherance of an illegal or improper purpose, including fraud: per Hill J in Zemanek v Commonwealth Bank of Australia & Ors (FCA, Hill J, 2 October 1997, unreported) at 5. That is the standard in s125(2), namely that "there are reasonable grounds for finding "the fraud, offence, or act, or the abuse of power was committed" and "a communication was made or document prepared in furtherance" thereof.

38 He relies on various authorities for the principle that solicitor-client communication is not privileged if the client sought the advice to guide the client in the commission of a crime or fraud. This will be the case even if the legal adviser is ignorant of the purpose for which the advice was wanted. In Attorney-General (NT) v Kearney (1985) 158 CLR 500, the High Court held that documents that related to a scheme to defeat claims under the Aboriginal Land Rights Act (NT) 1976 (Cth) through an abuse of statutory power were not privileged. As Gibbs CJ stated:

"[I]t would be contrary to the public interest which the privilege is designed to secure - the better administration of justice - to allow it to be used to protect communications made to further a deliberate abuse of statutory power and by that abuse prevent others from exercising their rights under the law".

39 Mr McGuirk also contends that the Department did not follow the procedures outlined in the Premier's Memorandum 99-11 and the Guidelines. The Premier's memorandum No 99-11 makes provision for the grant of ex-gratia legal assistance to public officials where, amongst other things, legal proceedings have been commenced against them and where the proceedings relate to a person’s official duties. Mr McGuirk referred to discussion about the applicability of the guidelines by Marks J in Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Public Sector Management Office and anor [2004] NSWIRComm 209. He says that comments at [63] are relevant to the jurisdiction of the Tribunal in regard to the Guidelines. Marks J noted:

I have concluded that the application of the guidelines is subject to judicial review, having regard to the discretionary nature of the guidelines and in particular the inability to obtain any degree of comfort that will have been applied until the making of an order under sl98M is either imminent or has been undertaken. I am of the opinion that there is sufficient uncertainty surrounding the application of the indemnity created by the guidelines to justify the making of the award sought by the PSA.

40 Mr McGuirk referred to the evidence of Ms Follent and Mr Mullen that the University paid the CSO’s Solicitor's fees and disbursements, despite the fact that a formal grant of Crown representation was not pursued. He says that such an application was required before ex gratia legal assistance can be provided to public officials. He argues that the diversion of public monies for private purposes without official authorisation is corrupt conduct in the terms of Sections 7, 8 & 9 of the Independent Commission Against Corruption Act 1988.

41 In regard to the role of the legal adviser where improper purpose is alleged, Mr McGuirk referred to the decision in Kang v Kwan & 2 Ors where Santow J stated as follows:

45 There remains the question whether the communications were made or the documents prepared, in furtherance of the commission of the fraud or abuse of power earlier identified. With minor exceptions, I find that, in terms of s125(2), the documents in respect of which there is still an extant claim of privilege were so prepared, there being no necessity that the lawyer be aware of there being an intention to commit fraud or abuse power so long as the clients have that intention.

42 Mr McGuirk further contends that in the matter of McGuirk v Niland & Ors, the prosecution case was extremely strong. He says that the financial resources available to the defendants were largely provided by the University in breach of government policy and that a decision was taken to defend the action by using those resources in an oppressive manner.

43 Mr McGuirk also says that independent of the clear and improper purpose behind the application for the CSO to be permitted to represent the five defendants, another issue arises in regard to the claim by the Crown Solicitor that the documents in Category I are exempt documents under with Clause 10 of Schedule 1 of the FOI Act. He submits that those documents are first and foremost administrative documents, part of a defined process for ensuring that representation provided by the CSO in accordance with the relevant policies and procedures of the Attorney General, and in accordance with the Code of Conduct of the Attorney General's Department.

44 He contends that even if the Tribunal finds that the withheld documents are privileged, the Tribunal has a discretion under section 25(1)(a) of the FOI Act to release a document that has been found to be exempt. He submits that in the circumstances the documents should be released.

Findings

45 I have examined the documents that have been provided to me on a confidential basis. I am satisfied that each of those documents falls within the categories of legal professional privilege outlined by Lockhart J in Trade Practices Commission v Sterling. I do not agree with Mr McGuirk’s assertion that the documents in Category I do not attract privilege. While I accept that they are documents of an administrative character, in my view they are connected to the giving of the legal advice and are therefore privileged.

46 With respect to Mr McGuirk’s assertions of improper conduct and that the withheld documents are denied the protection of privilege, I agree with Ms Johnson that in order to resist the claim of privilege Mr McGuirk must be able to put cogent and reasonable evidence before the Tribunal which is sufficient to demonstrate a prima facie case of improper purpose. An improper purpose is not to be inferred lightly. Mere allegation is not enough. If the purpose of a decision has to be ascertained by inference, a presumption of regularity operates: Industrial Equity Ltd v Deputy Commissioner of Taxation (1990) 170 CLR 649 per Gaudron J at 671-2.

47 I note that I found each of the witnesses who appeared for the Department credible witnesses. Their evidence was not significantly affected by the cross-examination. I make no findings of any impropriety in relation to the roles that they played in relation to this matter.

48 Clearly, the defendants instructed the CSO to defend the case brought against them. I agree with Ms Johnson that any conduct prior to the CSO receiving instructions from the defendants is irrelevant for the purposes of these proceedings. In regard to conduct after the CSO received instructions, it is my view that Mr McGuirk has done no more than suggest that the communication was made in furtherance of an improper purpose. I do not agree with his assertion that the University paying for the legal costs incurred by the defendants in defending the proceedings can affect the privilege. Similarly, a failure to follow the procedures outlined in the Premier's Memorandum 99-11 or the Guidelines is not conduct that affects the privilege. I do not consider that the Public Service Association case has any application to these proceedings.

49 I note Mr McGuirk’s assertions with respect to the strength of his case against the defendants and that the conduct of the prosecution was oppressive. I have insufficient basis on which I could conclude that this was the case or that it could prevent a claim for privilege. I cannot be satisfied to the requisite standard that this was the case. In my view, the withheld documents attract legal professional privilege.

50 It is therefore necessary to determine whether that 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 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.

51 In McGuirk v University of New South Wales [2006] NSWADT 256 I stated that I was satisfied that there was a solicitor-client relationship between Mr Mullen and the defendants. I remain of that view. Mr Mullen provided a number of services to the defendants. These included acting as the agent of the defendants, in that he arranged for the CSO to act for them, conveyed their instructions to the CSO and conveyed the CSO's advice to them. The function that Mr Mullen performed was to enable the defendants to obtain the legal advice they needed. It cannot be said that there is any inconsistency between the conduct of the client in providing the withheld documents to Mr Mullen and maintenance of the confidentiality.

52 It follows, in my view, that the withheld documents are exempt documents by virtue of to Clause 10 of Schedule 1 of the FOI Act. I have given consideration to the provisions of section 25(4) of the FOI Act. It is my view that it is not practicable to give Mr McGuirk access to a copy of the withheld documents from which the exempt matter has been deleted in accordance with that subsection.

53 The question of whether the Tribunal has any discretion under section 25(1)(a) of the FOI Act to release a document that has been found to be exempt has been raised in a number of matters before this Tribunal. To my knowledge it has not been resolved at the Appeal Panel level. Section 25(1)(a) provides that an agency may refuse access to a document if it is an exempt document. Arguably, while this section gives the agency discretion to release an exempt document, the Tribunal is not exercising power under section 25 when it is determining an application. In Neary -v- The Treasurer, New South Wales [2002] NSWADT 261 the Tribunal’s President considered the issue in some detail and concluded at paragraph 83:

"83 Accordingly in my view it is not open to applicants for review to seek an order, purportedly in exercise of powers conferred by s 25, that a Minister or agency release an otherwise exempt document. That discretion remains entirely with the Minister or agency."

54 I agree with that view, however if such discretion may be said to exist, I consider that it is not appropriate in the circumstances of this case to release the disputed documents in any event.

55 It follows, in my view that the Department is entitled to assert that legal professional privilege attached to the withheld documents. Accordingly, the determination by the to withhold the documents in full should be affirmed.

Order

The decisions under review are affirmed.