McGuirk v University of New South Wales

[2011] NSWADT 182

Administrative Decisions Tribunal

New South Wales

Case Title:	McGuirk v University of New South Wales
Medium Neutral Citation:	[2011] NSWADT 182
Hearing Date(s):	On the papers
Decision Date:	28 July 2011
Jurisdiction:	General Division
Before:	S Higgins, Deputy President
Decision:	1.The application is dismissed pursuant to subparagraph 73(5)(g)(ii) of the Administrative Decisions Tribunal Act 1997. 2.The applicant's application for costs is refused.
Catchwords:	Access to documents-access to same documents sought previously and for which external review was sought
Legislation Cited:	Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989 Government Information (Public Access) Act 2009
Cases Cited:	McGuirk v University of New South Wales [2010] NSWADTAP 66 McGuirk v University of New South Wales [2009] NSWCA 321; (2009) 75 NSWLR 224 McGuirk v University of New South Wales (No 2) [2008] NSWADTAP 12 McGuirk v University of New South Wales [2008] NSWADT 302 McGuirk (GD) v University of New South Wales [2007] NSWADTAP 65 University of New South Wales v McGuirk [2006] NSWSC 1362 McGuirk v Attorney General's Department [2007] NSWADT 138 McGuirk v University of New South Wales [2006] NSWADT 256 Trlin v Director General, Department of Fair Trading [2002] NSWADT 192
Texts Cited:
Category:	Principal judgment
Parties:	Gerald Michael McGuirk (Applicant) University of New South Wales (Respondent)
Representation
- Counsel:	Counsel: P Singleton (Respondent)
- Solicitors:	G M McGuirk (Applicant in person)
File number(s):	073277
Publication Restriction:

REASONS FOR DECISION

Introduction

1. GENERAL DIVISION (S Higgins, Deputy President): On 19 September 2007, the applicant, Mr McGuirk, lodged an application with the Tribunal seeking review of an internal review decision of the respondent, the University of New South Wales, in regard his request made, on 28 May 2007, pursuant to the Freedom of Information Act 1989 (the FOI Act) for access to 3 specified documents as follows:

   Email from Mr Andrew Mullen, Assistant University Solicitor, the University of New South Wales, to Mr Ian Linwood, Assistant Crown Solicitor, dated 21 December 2003.

Letter from Ms Catherine Follent, A/Assistant Crown Solicitor to Mr Andrew Mullen, Assistant University Solicitor, the University of New South Wales, dated 21 December 2005.

Email from Mr Andrew Mullen, Assistant University Solicitor, the University of New South Wales, to Ms Catherine Follent, A/Assistant Crown Solicitor dated 1 February 2005.

1. Although the FOI Act was repealed on 1 July 2010 and replaced by the Government Information (Public Access) Act 2009 , it continued to apply to and in respect of the applicant's applications: see clause 3(1) of Schedule 3 of the Government Information (Public Access) Act 2009.

The decision the subject of review

1. Ms Gibson, as the delegate of the respondent, initially determined to refuse the applicant access to the 3 documents he had requested on the grounds they were exempt documents: see paragraph 25(1)(a) of the FOI Act. Ms Gibson found that the documents were exempt because they contained information that would be privileged from production in legal proceedings on the ground of legal professional privilege: see clause 10 of Schedule 1 of the FOI Act. In her determination, Ms Gibson noted that the documents for which the applicant had sought access were part of an earlier FOI requests made by the applicant and that access to these had been refused on the same grounds. It was also noted that the applicant had sought external review of the earlier decision of the respondent.

1. Mr Paul Macpherson, another delegate of the respondent, in his internal review decision again noted that this was the applicant's second FOI request for the same 3 documents. The first FOI request, he noted was made on 26 May 2005 and the respondent had determined to refuse the applicant access to these 3 documents on the grounds that each document was an exempt document in that it was privileged (the respondent's earlier determination). He went on to note that, in 2006, the applicant had sought external review of the respondent's earlier determination in regard to these 3 documents and that these documents were also the subject of an appeal, by the applicant, to the Appeal Panel of the Tribunal (see McGuirk v University of New South Wales [2006] NSWADT 256, McGuirk (GD) v University of New South Wales [2007] NSWADTAP 65) and McGuirk v University of New South Wales (No 2) [2008] NSWADTAP 12).

1. In confirming the original decision made by Ms Gibson, Mr Macpherson said he had reviewed all of the decisions previously made by the University and the ADT in regard to the documents in issue.

Preliminary matter in issue

1. On 24 October 2007, when the applicant's application for review of the decision of Mr Macpherson first came before the Tribunal, the respondent raised, as a preliminary issue, the question as to whether the application should be summarily dismissed or stayed as an abuse of process. The basis on which the issue was raised was the fact that the same three documents the subject of these proceedings had previously been the subject of consideration and determination by the Tribunal and the Appeal Panel in the abovementioned proceedings.

1. The respondent subsequently pressed for this issue to be determined as a preliminary issue. That is, it sought an order that the applicant's application be dismissed under the then paragraph 73(5)(h) of the Administrative Decisions Tribunal Act 1997 (the ADT Act). Subsection 73(5)(g) and (h) have since been amended and the equivalent of the former paragraph 73(5)(h) is now subparagraph 73(5)(g)(ii).

1. For the reasons set out below, I have found that the order sought should be granted.

History of the application

1. Before dealing with the matter in issue it is necessary to set out a brief history of this application.

1. After the initial planning meeting on 24 October 2007, the matter was before the Tribunal at directions hearing on 23 January 2008, 8 May and 19 June 2008. Directions were made for the filing and serving of written submissions and by consent the preliminary issue was set down for hearing on 25 September 2008.

1. At the commencement of the hearing, the applicant, as he was entitled to do, made an application that I recuse myself from hearing and determining this application and 3 other applications that were before me on that day for directions (i.e. File No. 083002, 083009 and 083019). Each application was an application by the applicant seeking external review of a determination made by the respondent, under the FOI Act, in regard to an FOI request he had made. After hearing oral submissions from the applicant and the respondent, I reserved my decision on the applicant's application.

1. On 11 November 2008, my decision on the applicant's application and the other 3 applications (i.e. File No. 083002, 083009 and 083019) was published: see McGuirk v University of New South Wales [2008] NSWADT 302. In that decision I dismissed the applicant's application and set the four matters down for further directions on 19 December 2008.

1. On 19 December 2008, I made directions that (a) on or before 11 February 2009, the applicant was to file and serve any additional material in regard to the preliminary issue raised by the respondent and (b) the preliminary issue was to be determined on the papers pursuant to section 76 of the Administrative Decisions Tribunal Act 1997 (the ADT Act). The applicant had advised that he was unable to participate by telephone on that day. Accordingly, the orders that I made were confirmed, in writing, in a letter to the parties from the Registrar.

1. In the meantime, the applicant, as he was entitled to do, appealed, to the Appeal Panel, my decision of 11 November 2008. On 18 March 2009, pursuant to section 116 of the ADT Act, the Appeal Panel stayed this application and the other 3 applications that were the subject of my decision of 11 November 2008. On 6 October 2010, the decision of the Appeal Panel was published: see McGuirk v University of New South Wales [2010] NSWADTAP 66. The Appeal Panel dismissed the applicant's appeal and also discharged the stay granted on 18 March 2008.

1. On 11 November 2010, at my direction, the Registrar wrote to the parties informing them of directions I had made in regard to the further progress of this application and the other 3 applications that were the subject of the decision of the Appeal Panel. These directions included a timetable for filing and serving of any additional evidence and submissions and a further directions date of 2 February 2011 at 10am. In early January 2011, the applicant informed the Registry that he was unable to participate in the directions hearing on 2 February 2001 as he had a commitment in the Supreme Court, at 9.30am, on that day. On 17 January 2011, the applicant filed and served, by facsimile, further written submissions in regard to this application.

1. Having regard to the submission of the applicant and the other material that had been filed, on 24 January 2011, at my direction, the Registrar wrote to the parties to inform them that I had formed the view that the preliminary issue for determination in this application could be adequately determined in the absence of the parties , pursuant to section 76 of the ADT Act. The directions hearing for 2 February 2011 was also vacated.

1. On 25 January 2011, the applicant sent a further facsimile to the Registrar in which he formally advised that he did not agree with my finding that these applications could be dealt with on the papers pursuant to s 76 of the ADT Act and that the decision represented a clear denial of procedural fairness to himself. Other than a mere assertion, the applicant did not identify any basis for his assertion. I have nevertheless re-examined the written submissions that have been filed by the applicant and the respondent in relation to the matters in issue. On the basis of this material, I remain satisfied that it is appropriate to determine the preliminary issue on the papers.

Relevant legislation

1. The procedure of the Tribunal is set out in section 73 of the ADT Act. Paragraph 73(5)(g) sets out the Tribunal's powers of dismissal. Section 73 relevantly provides as follows:

73 Procedure of the Tribunal generally

The Tribunal may, subject to this Act and the rules of the Tribunal, determine its own procedure.

The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice.

The Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.

The Tribunal is to take such measures as are reasonably practicable:

(a) to ensure that the parties to the proceedings before it understand the nature of the assertions made in the proceedings and the legal implications of those assertions, and

(b) if requested to do so-to explain to the parties any aspect of the procedure of the Tribunal, or any decision or ruling made by the Tribunal, that relates to the proceedings, and

(c) to ensure that the parties have the fullest opportunity practicable to be heard or otherwise have their submissions considered in the proceedings.

The Tribunal:

(a) is to act as quickly as is practicable, and

(b) is to ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in any proceedings, and

(c) may require evidence or argument to be presented in writing and decide on the matters on which it will hear oral evidence or argument, and

(d) in the case of a hearing-may require the presentation of the respective cases of the parties before it to be limited to the periods of time that it determines are reasonably necessary for the fair and adequate presentation of the cases, and

(e) may require a document to be served outside the State, and

(f) may adjourn proceedings to any time and place (including for the purpose of enabling the parties to negotiate a settlement), and

(g) may dismiss at any stage any proceedings before it in any of the following circumstances:
(i) if the applicant (or, if there is more than one applicant, each applicant) withdraws the application to which the proceedings relate,

(ii) if the Tribunal considers that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance,

(iii) if the applicant (or, if there is more than one applicant, each applicant) has failed to appear in the proceedings,

(iv) if the Tribunal considers that there has been a want of prosecution of the proceedings, and

(h) may reinstate proceedings that have been dismissed because of an applicant's failure to appear if the Tribunal considers that there is a reasonable explanation for that failure ...

Consideration

1. The applicant has at no time disputed that the documents the subject of this application are the same documents that were included in his earlier FOI request and that they were also the subject of his external review application to the Tribunal.

1. As I have mentioned, the applicant sought access to these documents as part of an FOI request he made on May 2005. On 27 July 2005, on internal review, Mr Michael Milne, Executive Officer to the Deputy Vice-Chancellor (Academic) determined to refuse the applicant access to these documents on the grounds they were exempt under clause 10 of Schedule 1 of the FOI Act. In his application for external review of Mr Milne's determination, the applicant contended that the respondent had failed to establish 'the elements of legal professional privilege' as there was 'no solicitor-client relationship' between respondent and the Crown Solicitor's Office: see McGuirk v University of New South Wales [2006] NSWADT 256 at [39]. He also contended that privilege was in any event waived, or in the alternative, the documents were created with the intent of furthering an illegal or improper purpose: see at [40] to [41].

1. The Tribunal rejected the applicant's contentions as he had provided no evidence to support his contentions (see at [49] to [51]) and on that basis the Tribunal affirmed the decision of the respondent. I note that the Tribunal had before it evidence from Mr Mullen, the author and recipient of the documents in issue (see at [47]).

1. In his appeal from the decision of the Tribunal, the applicant again canvassed his contentions in regard to the documents not being privileged: see McGuirk (GD) v University of New South Wales [2007] NSWADTAP 65 at [26]-[39]. The Appeal Panel found that the Tribunal had applied the correct principles in determining the matters raised by the applicant. I note that in the Appeal Panel's reasons for decision, at [40], the applicant had asserted that he had ample evidence of wrongdoing by the respondent. However, the Appeal Panel found that it would be procedurally unfair to allow the applicant to submit further evidence when he had ample opportunity to adduce evidence before the Tribunal. The Appeal Panel, however, did decide to grant leave to the applicant for the appeal to be extended to the merits on a limited issue, namely the principles set out by Nicholas J in University of New South Wales v McGuirk [2006] NSWSC 1362: see decision of the Appeal Panel at [49] and [50]. The decision of Nicholas J , as pointed out by the Appeal Panel, was decided after the decision of the Tribunal and it concerned the discretion that is to be exercised by the Tribunal when determining the correct and preferred decision after having determined that the document's in issue were exempt documents (see section 63 of the ADT Act). The Appeal Panel found, in applying the principles of Nicholas J that there was no material before it that justified the disclosure of the documents in issue: see McGuirk v University of New South Wales (2) [2008] NSWADTAP 12 at [11].

2. In his application for external review in these proceedings, the applicant gave the following as his reasons for seeking review of the respondent's decision:

   'Improper claiming and application of exemption.
   Failure to consider the 'correct and preferable decision'.
   Failure to consider the public interest with dealing the handling of protected disclosures by officers of the UNSW, including by legal officers of the University.'

1. In lengthy written submissions, filed on 5 June 2008, the applicant made an application for an order that the respondent's application that these proceedings be dismissed for an abuse of process be 'struck' out under the then paragraph 73(5)(h) of the ADT Act (now paragraph 73(5)(g)(ii)). In support of that application, the applicant contended that the Tribunal in the earlier proceedings had not considered some of the most basic issues relevant to the status of the documents in question and on this basis the issue as to whether the documents were or were not protected by legal professional privilege had not been 'properly decided' by the Tribunal in the earlier proceedings. In the submissions the applicant gave a detailed outline of where, in his opinion, the Tribunal in the earlier decision and the Appeal Panel had erred in determining the issues in regard to the status of the documents for the purpose of the FOI Act. He went on to discuss other decisions of the Tribunal and the Appeal Panel, which he contended were not properly decided.

1. The applicant made submissions along similar lines in his further submissions filed on 21 September 2008. In the submissions filed on 17 January 2011, the applicant in essence confirmed his earlier submissions.

1. In its supplementary submissions filed on 23 September 2008, the respondent argued that the power vested in the Tribunal under paragraph 73(5)(g)(ii) of the ADT Act was equivalent to a power to dismiss proceedings on the grounds that they are an abuse of process. It also pointed to the decision of the Tribunal in McGuirk v Attorney General's Department [2007] NSWADT 138, where I held in circumstances similar to those in these proceedings, it was an abuse of process for the applicant to apply for external review of a decision to refuse access to document under the FOI Act, where the applicant had previously sought external review of a decision relating to the same documents. In that application, the applicant's application was dismissed under the then paragraph 73(5)(h) of the ADT Act (now subparagraph 73(5)(g)(ii)).

1. The respondent also pointed to the decision of Trlin v Director General, Department of Fair Trading [2002] NSWADT 192, where Judicial Member Britton made the following observations:

   16 It appears to me that, as this Tribunal is administrative in nature (although it operates in a quasi-judicial fashion), it is not strictly bound by the rules of res judicata and issue estoppel. Nonetheless, as was said in Toleafoa, good reason must be shown for the Tribunal to depart from the general practice of prohibiting the relitigation of facts and questions of law, which have already been decided.

...

18 In effect s .73 (5) (h) allows the Tribunal to safeguard its own process from conscious or unconscious abuse by litigants whose causes of action are frivolous, vexatious, misconceived or lacking in substance. In general terms, an application which is brought on the same grounds as an application which has been previously decided, and which raises no new issues, will fall into one or more of those categories and will not be permitted to proceed.

1. I agree with these observations of Judicial Member Britton. And in the light of the applicant having failed to identify any new grounds (for example, evidence of a subsequent waiver of privilege by the respondent in regard to the contents of documents in issue) I find that the applicant's application is an abuse of process as he merely seeks to re-litigate facts and questions of law that have already been decided. In regard to questions of law, I note that the principles of Nicholas J have been over ruled in so far as they relate to documents that are found to be exempt on grounds of legal professional privilege (see McGuirk v University of New South Wales [2009] NSWCA 321 at [29]; (2009) 75 NSWLR 224). That is, the Tribunal has no power to disclose such documents in determining the correct and preferred decision.

1. Accordingly, the appropriate order is to dismiss the applicant's application pursuant to subparagraph 73(5)(g)(ii) of the ADT Act.

1. While it is not relevant to this application, I note that the circumstances in which an agency may refuse to deal with an application for access under the Government Information (Public Access) Act 2000, includes those where the agency has already decided a previous application for the information concerned and there are no reasonable grounds for believing that the agency may make a different decision on the application: see paragraph 60(1)(b) of that Act.

Costs

1. In his submissions filed on 25 January 2011, the applicant made application that the respondent pay his costs in respect of these proceedings.

1. The Tribunals power to award costs is set out in section 88 of the ADT Act. Subsection 88(1) provides that each party to proceedings before the Tribunal is to bear its own costs in the proceedings, except as provided under that section.

1. Subsection 88(1A) provides that subject to the rules of the Tribunal and any other Act or law, the Tribunal may award costs in relation to proceedings before it, but only if it is satisfied that it is fair to do so having regard to the matters prescribed under that subsection. The prescribed matters relate to circumstances where the conduct of one party to proceedings has disadvantaged another party.

1. Other than a general assertion that the respondent has engaged in improper conduct by frustrating his right to obtain access to the documents he has requested, the applicant has not identified any conduct by the respondent in regard to these proceedings, which would fall within subsection 88(1A) of the ADT Act. Nor has the applicant submitted any information as to the nature of the costs he seeks. Yet he has ample opportunity to do so.

1. Accordingly, the applicants application for costs is refused.

I hereby certify that this is a true and accurate record of the reasons for decision of the Administrative Decisions Tribunal.

Registrar