McGuirk v University of New South Wales

[2006] NSWADT 84

Pending Appeal:

CITATION:	McGuirk v University of New South Wales [2006] NSWADT 84
DIVISION:	General Division
PARTIES:	APPLICANT Gerard Michael McGuirk RESPONDENT University of New South Wales
FILE NUMBER:	053246
HEARING DATES:	16/11/2005 & 30/11/3005
SUBMISSIONS CLOSED:	11/30/2005
DATE OF DECISION:	03/23/2006
BEFORE:	Montgomery S - Judicial Member
CATCHWORDS:	access to documents - legal professional privilege
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Evidence Act 1995 Freedom of Information Act 1989 Protected Disclosures Act 1994
CASES CITED:	Briginshaw v Briginshaw (1938) 60 CLR 336 Charteris v General Manager, Leichhardt Municipal Council [2001] NSWADTAP 12 Commissioner, Australian Federal Police v Propend Finance Ply Ltd (1997) 188 CLR 501 Commonwealth of Australia v Dutton (2000) 102 FCR 168 Daniels Corp International Pty Limited v Australian Competition and Consumer Commission [2002] HCA 49 Esso Australia Resources Ltd v Commissioner of Taxation (1999) 201 CLR 49 Law Society of New South Wales v General Manager, Workcover Authority of New South Wales [2004] NSWADTAP 40 Mann v Carnell [1999] HCA 66 Neary v The Treasurer, New South Wales [2002] NSWADT 261 Saggers v Director General, Attorney General's Department [2005] NSWADT 193 Trade Practices Commission v Sterling (1979) 36 FLR 244 Vance v Air Marshall McCormack in his capacity as Chief of Air Force & Anor [2004] ACTSC 78 Varawa v Howard Smith & Co. Ltd. (1910) 10 CLR 382 Waterford v Commonwealth (1987) 163 CLR 54
REPRESENTATION:	APPLICANT In person RESPONDENT P Singleton, Barrister
ORDERS:	1. The decision under review is affirmed.; 2. No order for costs.

1 Mr McGuirk applied to the University of New South Wales for access to documents under the Freedom of Information Act 1989 (“the FOI Act”). His application sought:

1. Copy of the memorandum from Ms Carol Kirby to Professor Rory Hume dated 8 December 2003, commenting on the matters raised by Mr Michael McGuirk in his letter to Professor Hume dated 24 November 2003.

2. Copy of the letter from Professor Rory Hume of January/February 2003 in which he appointed Professor Stephen Deane academic supervisor of Professor Bruce Hall for the purposes of commencing the disciplinary process under Section 14.3 of the UNSW (Academic staff) Enterprise Agreement 2000.

2 The University’s Freedom of Information Officer advised Mr McGuirk that she had determined that the University held a document that fell within the scope of the second limb of his request. The relevant document was the letter dated 11 February 2003 from Professor Hume to Professor Stephen Deane. She determined to release this document in full. However, she determined to withhold in full the memorandum from Ms Carol Kirby to Professor Hume dated 8 December 2003 (“the Kirby memorandum”).

3 The University’s Freedom of Information Officer determined that the Kirby memorandum was exempt from production pursuant to Clause 10 of Schedule 1 of the FOI Act. She considered that that the Kirby memorandum was legal advice provided by the University Solicitor in her professional capacity as a legal advisor to the University and that release of the document would result in disclosure of a confidential communication made between the University and the University Solicitor in that capacity.

4 Mr McGuirk sought an internal review of the determination to refuse his application. In his application he observed that while confidential communications between a solicitor and a client normally attracts client legal privilege, this is not the case when the advice is given to assist in, or to advance, an illegal purpose. He asserted that the purpose of the Kirby memorandum was to advise Professor Hume on how best to protect certain named officers of the University from the consequences of their criminal breaches of the Protected Disclosures Act 1994.

5 That internal review application was unsuccessful and the reviewer denied Mr McGuirk’s assertions and affirmed the determination to refuse his application. Mr McGuirk filed an application with the Tribunal for an external review of the University’s determination. A copy of the Kirby memorandum was made available to the Tribunal on a confidential basis.

6 Pursuant to section 61 of the FOI Act, the burden of establishing that the determination is justified lies on the University. The University asserts that it is entitled to refuse Mr McGuirk’s request by virtue of Clause 10 of Schedule 1 of the FOI Act. Clause 10 relevantly states:

“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.”

7 The University relies on the evidence of Ms Carol Kirby, the University’s Solicitor. Ms Kirby provided a statement and also appeared at the hearing and was subjected to cross-examination. In her statement she outlined the circumstances that gave rise to the preparation of the Kirby memorandum. Her evidence is that she provided legal advice to Professor Hume on matters arising from correspondence received from Mr McGuirk. She stated that the advice was given in circumstances in which it was anticipated that Mr McGuirk might institute litigation against the University or its officers or former officers. Mr McGuirk subsequently commenced proceedings against five defendants who were or had been officers of the University.

8 Ms Kirby stated that the Kirby memorandum was written in response to Professor Hume's request for an update on the matters it addresses. She says that the memorandum is confined to: (i) a summary of the background to writing of the memorandum; (ii) a summary of the matter of Mr McGuirk's making and possibly making contact with Council members; (iii) an update with respect to the criminal proceedings; and (iv) a summary of the law applicable to the criminal proceedings.

9 Ms Kirby further stated that the Kirby memorandum was written for purposes confined solely to (i) properly managing the legal services she was providing in respect of the criminal proceedings, (ii) properly preparing for other litigation which it was anticipated may arise between Mr McGuirk and the University, its officers and employees or its former officers and employees, and (iii) providing advice on a question of law. Ms Kirby denied any allegation that she wrote the Kirby memorandum for an improper purpose or that it was written in pursuance of some improper objective. In respect of the Kirby memorandum she asserted that there was no impropriety by her and nor is she aware of any impropriety by anyone else.

10 Ms Kirby maintained these assertions under cross-examination. She also provided an outline of the position of the University’s Legal Office in the structure of the University in order to demonstrate the independence of that office and to refute Mr McGuirk’s contentions to the contrary.

11 The University asserts that evidence generally on the culture of an organisation, without more, is not relevant to establish that the University’s Legal Office lacked the necessary degree of independence to attract legal professional privilege to the Kirby memorandum. While it concedes that evidence about an organisation’s culture may indicate that it operated to deprive its legal office of the necessary degree of independence, there is no basis on which the Tribunal could conclude that was the case in this matter.

12 Mr McGuirk contends that there are seven bases for challenging the claim that the Kirby memorandum is the subject of legal professional privilege. He says that Ms Kirby is not able to claim legal professional privilege in her own advice; that the advice given by Ms Kirby to Professor Hume was not attended by the necessary degree of independence; that the advice was given in the furtherance of an illegal object; that the Kirby memorandum was not created for the dominant purpose of giving or receiving legal advice or for use or in connection with actual or anticipated litigation; that the requisite solicitor-client relationship was not present; that in his letter to Mr McGuirk dated 9 December 2003, written immediately after he received the Kirby memorandum, Professor Hume put his state of mind into play, and hence waived his claim to legal professional privilege in the Kirby memorandum; and that in her statement filed with the Tribunal Ms Kirby revealed what she claims are the essential contents of the Kirby memorandum and any claim to privilege in this memorandum is therefore waived by imputation.

13 Mr McGuirk contends that Ms Kirby did not have the necessary degree of professional independence from the University’s management for the University to be able to claim legal professional privilege in the Kirby memorandum. In support of his assertions he referred to a number of academic and media discussions of cultures within a number of academic institutions.

14 He says that the test to be applied is the common law test rather than the test of client privilege under the Evidence Act 1995. In support of this submission he referred to decisions in Commonwealth of Australia v Dutton (2000) 102 FCR 168 and Charteris v General Manager, Leichhardt Municipal Council [2001] NSWADTAP 12. He submits that at common law, for a document to be privileged requires that (i) there must be a solicitor-client relationship; (ii) the document in question must have been created for the dominant purpose of giving or receiving legal advice or for use or in connection with actual or anticipated litigation; (iii) the advice given must be independent; and (iv) the advice given must be confidential. Legal professional privilege is a client's privilege to assert or to waive.

15 Mr McGuirk further asserts that Waterford v Commonwealth (1987) 163 CLR 54 is authority for the principle that in respect of government legal advisers and in-house lawyers, that the following requirements must also be met: (i) the legal advice must be given by a qualified lawyer; (ii) the legal adviser must be acting in his/her capacity as a professional legal adviser; and (iii) the giving of the advice must be attended by the necessary degree of independence. For privilege to be available to an 'in-house' lawyer, there must be a true solicitor-client relationship between the legal adviser and the rest of the agency. This will include whether, in fact, the lawyer can be said to have the necessary degree of independence and is subject to professional standards.

16 Advice given by an in-house lawyer on purely administrative or procedural matters is not privileged. Legal professional privilege is waived where the document in question has been widely distributed or the content of the legal advice has been disclosed or acted upon: Mann v Carnell [1999] HCA 66 (21 December 1999).

17 If only part of a document contains material which is privileged under Clause 10 of Schedule 1 to the FOI Act, disclosure of the part which is not privileged from production is required: Waterford. Further, legal professional privilege does not apply where the communication was part of a criminal or unlawful proceeding, or was made in furtherance of an illegal object, even where the solicitor was unaware of the purpose of the communication at the time it was made: Varawa v Howard Smith & Co. Ltd. (1910) 10 CLR 382

18 In relation to the Kirby memorandum Mr McGuirk contends that the requisite solicitor-client relationship was not present because the relationship was that of employer/employee. He says that the advice given was not attended by the necessary degree of independence and did not meet the criteria for legal professional privilege to apply as specified in Waterford because Ms Kirby was effectively beholden to her immediate superior at the time, Professor John Ingleson. He further asserts that the Kirby memorandum was not created for the dominant purpose of giving or receiving legal advice or for use or in connection with actual or anticipated litigation. He says that no legal proceedings involving the University were either in train or anticipated at the time. He contends that the advice was given in the furtherance of an illegal object, viz. ongoing breaches of the Protected Disclosures Act 1994 by certain officers of the University.

19 Mr McGuirk also contends that Ms Kirby and various other officers of the University acted improperly in using public funds in the defence the proceedings that he commenced. In particular he asserts that public monies were used to provide a private benefit to certain officers of the University. He submits that Ms Kirby’s assertion that the officers were acting in the course of their employment is untenable. He contends that those individuals were facing charges that, in conflict with their obligations to the University, and therefore outside the scope of their employment, that they had breached the Protected Disclosures Act 1994. He referred to the "Guidelines for the Provision of Ex Gratia Assistance for Legal Representation for Ministers of the Crown, Public Officials and Crown Employees" issued by the NSW Premier's Department and contends that it places strict requirements on the conditions under which ex-gratia legal assistance may be provided to public officials, including the procedures which must be followed. He says that Ms Kirby ignored these guidelines and thereby breached her professional obligations as a Solicitor and demonstrated a lack of professional independence.

20 Mr McGuirk provided a detailed account of the exchange of correspondence between himself and various officers of the University and of the circumstances that he alleges existed at the time that the Kirby memorandum was prepared in order to establish that Ms Kirby fails the test of independence described in Waterford. He further asserts that Ms Kirby is not entitled to claim that her memorandum is subject to legal professional privilege, as she is not the client. The only party which can assert a claim to legal professional privilege in the Kirby memorandum is the client ie. the Council of the University. He further asserts that Professor Hume waived his claim to legal professional privilege in the Kirby memorandum by virtue of his 9 December 2003 letter to Mr McGuirk.

21 In summary, Mr McGuirk contends that the claim that the Kirby memorandum is subject to legal professional privilege is unsustainable. The Tribunal should therefore order its immediate release to him.

Finding:

22 In determining this matter the Tribunal is required to decide what the correct and preferable decision is having regard to the material then before it, including any relevant factual material and any applicable written or unwritten law.

23 In a matter such as this, where a claim to legal professional privilege in a document is asserted, the primary onus is on the party claiming the privilege to make out that claim. If the party asserting the claim does not provide sufficient evidence to the Tribunal in support of its claim, that claim must fail. I am satisfied that the University, through Mr Singleton, has asserted the claim for that privilege. I do not agree with Mr McGuirk’s assertion that only Ms Kirby had asserted the claim.

24 The common law principles of legal professional privilege, rather than the Evidence Act test, are applicable to the question of whether documents are exempt under the FOI Act. In the context of a claim for exemption under clause 10 of Schedule 1 to the FOI Act the tests for determining whether legal professional privilege applies are the ruling of the High Court in Esso Australia Resources Ltd v Commissioner of Taxation (1999) 201 CLR 49; as amplified in Daniels Corp International Pty Limited v Australian Competition and Consumer Commission [2002] HCA 49. The Appeal Panel decision in Law Society of New South Wales v General Manager, Workcover Authority of New South Wales [2004] NSWADTAP 40 at [22] accepted that:

“Legal professional privilege can be invoked by the client in respect of any confidential communications made by or to a legal adviser if they were made for the dominant purpose of obtaining or giving legal advice or assistance, or for use in legal proceedings.”

25 In Saggers v Director General, Attorney General's Department [2005] NSWADT 193 the Tribunal’s President (at [21]) accepted the well known statement of Lockhart J in Trade Practices Commission v Sterling (1979) 36 FLR 244 as usefully defining the categories of circumstances in which legal professional privilege can arise:

21 A well-known statement describing the various types of documents that can be the subject of a claim for legal professional privilege is one made by Lockhart J in the case of Trade Practices Commission v Sterling (1979) 36 FLR 244, 245-6. At 245-6 His Honour described the categories 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.’

26 Privilege covers a range of documents, including copies of documents made for a privileged purpose. In Commissioner, Australian Federal Police v Propend Finance Ply Ltd (1997) 188 CLR 501 McHugh J said at 550:

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.

27 There is no doubt that the privilege can attach to the advice of government lawyers who are providing independent legal advice: Waterford.

28 The Appeal Panel in Law Society v Workcover (at [27] and [28]) recognised that the authorities allow some latitude for the inclusion of policy advice, provided that the dominant purpose of the relationship is the rendering of legal advice and assistance. That is, the advice must have been brought into existence in the course of the performance of a solicitor's professional duty or function as distinct from some other capacity unrelated to the giving of professional advice: Nedelandse Reassurantie Groep Holding NV v Bacon & Woodrow & ors [1995] 2 LI R 77 (QBD) per Colman J at 80 applying Minter v Priest [1930] AC 558 at 581-586 per Lord Atkin. See also Packer v Dep Cmr Taxation [1985] 1 Qd R 275 per McPherson J at 287. The Appeal Panel accepted, at [30]-[31] that:

30 If the overall environment is one of legal advice the courts will allow the privilege to cover broader advice which is of a non-legal character, and will protect documents of an administrative character connected to the giving of the legal advice. As to protection of documents of an administrative character (logs of telephone calls and the like), see per McHugh J in Propend Finance at 550; see also Trade Practices Commission v Sterling (1979) 36 FLR 244 at 245-246 per Lockhart J.

31 The proposition that ancillary or incidental advice of a non-legal kind may still be protected by the privilege was accepted in, for example, Waterford per Mason and Wilson JJ at 66; and more recently, DSE (Holdings) Pty Ltd v InterTAN Inc (2003) 203 ALR 348 at 350 per Allsop J. The protected material can, according to an older case, include ‘advice as to what should prudently and sensibly be done in the relevant legal context’: per Taylor LJ in Balabel & Anor v Air India [1988] Ch 317 at 330; [1988] 2 All ER 246 at 254. This category may have expanded in modern times with legal advisers often being asked to give of their ‘commercial wisdom’ as part of the lawyer-client relationship: see Nederlandse, cited above, at 81 per Colman J.

29 I note that I agree with Mr McGuirk’s submission with respect to the state of the law applicable to factors that must be satisfied in order for advice from of government legal advisers and in-house lawyers to attract legal professional privilege.

30 A copy of the Kirby memorandum has been provided to the Tribunal. I have examined that document and in the circumstances I am satisfied that it is a document that would normally attract legal professional privilege. The evidence establishes that the Kirby memorandum was created for the dominant purpose of giving confidential legal advice in connection with anticipated litigation.

31 The issue to be determined therefore is whether the evidence establishes that circumstances existed which either would be inconsistent with that claim or would amount to waiver of that privilege.

32 Mr McGuirk has asserted that it cannot be said that there was the necessary degree of independence within the Legal Office. He contends that the culture within the University was such that it could not be the case. In regard to the applicability of an organisation’s culture to the issue of independence Mr McGuirk relies on views expressed by Crispin J in the Supreme Court of the ACT in the matter of Vance v Air Marshall McCormack in his capacity as Chief of Air Force & Anor [2004] ACTSC 78 (2 September 2004) and the subsequent appeal in that matter.

33 He also contends that the communication was part of a criminal or unlawful proceeding, or was made in furtherance of an illegal object.

34 These assertions inevitably require a determination as to whether the evidence given by Ms Kirby is accepted. While I note that I found Ms Kirby to be a combative witness and some aspects of her evidence were not plausible, I accept her evidence in relation to the preparation of the Kirby memorandum. I find on balance that criteria set out in Waterford have been satisfied in regard to the Kirby memorandum. Ms Kirby is clearly a qualified lawyer. I am satisfied that in giving the advice she was acting in her capacity as a professional legal adviser; in a true solicitor-client relationship. I am satisfied that the giving of the advice was attended by the necessary degree of independence.

35 In Saggers Mr Saggers’ contention was that unlawful conduct had occurred in relation to the sale of the Sydney Markets, amounting to abuse of public office or furtherance of an illegal purpose. He asserted that the sale process was unlawful as no instrument had been created as required by section 5(3) of the Sydney Market Authority (Dissolution) Act 1997. The Tribunal’s President stated at paragraph 36 of his decision:

“36 If Mr Saggers is right and no such instrument has been created, the Tribunal is not satisfied that this kind of omission involves the kind of egregious misconduct to which the limitation allowing for the removal of the protection of legal professional privilege is directed. The malfeasance or misconduct must be of a gross kind, not one that may be no more than an administrative oversight in the course of a process which the Act clearly entitled the Government to undertake. The principal documents completing the transaction are available, and have been provided to Mr Saggers and Mr Cianfrano – the agreement and the deed of release. The case law does not stand for the proposition, asserted by Mr Cianfrano, that a failure to remain within the boundaries of statutory power (mere ultra vires, or ‘narrow’ ultra vires as counsel for the Department called it) is enough to give rise to the loss of legal professional privilege. Much more is required.”

36 Applying that approach to the present matter, it is for Mr McGuirk to demonstrate a prima facie case of the furtherance of an illegal object. Mere allegation is not enough. Allegations of such a serious kind ought to be made out to standard described by Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-363:

"Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inference. Everyone must feel that, when, for instance, the issue is on which of two dates an admitted occurrence took place, a satisfactory conclusion may be reached on materials of a kind that would not satisfy any sound and prudent judgment if the question was whether some act had been done involving grave moral delinquency ... It is often said that such an issue as fraud must be proved "clearly", "unequivocally", "strictly" or "with certainty" ... This does not mean that some standard of persuasion is fixed intermediate between the satisfaction beyond reasonable doubt required upon a criminal inquest and the reasonable satisfaction which in a civil issue may, not must, be based on a preponderance of probability. It means that the nature of the issue necessarily affects the process by which reasonable satisfaction is attained."

37 In my view, the material on which Mr McGuirk relies is insufficient to establish that the culture within the University was such that it cannot be said that there was the necessary degree of independence within the Legal Office. Nor does it do more than suggest that the communication was part of a criminal or unlawful proceeding, or was made in furtherance of an illegal object. I cannot be satisfied to the requisite standard that this was the case. In my view, the Kirby memorandum is a document that would attract legal professional privilege.

38 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. 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. Although, in some circumstances, the concept of fairness may be relevant, "[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".

39 It is inconsistency between the conduct of the client and maintenance of the confidentiality that affects a waiver of the privilege. It is necessary to decide whether the particular conduct to which Mr McGuirk has referred is inconsistent with the maintenance of the confidentiality that the privilege is intended to protect. I do not consider that to be the case. I do not agree with Mr McGuirk’s assertion that any privilege that attached to the Kirby memorandum has been waived.

40 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 Kirby memorandum from which the exempt matter has been deleted in accordance with that subsection.

41 In my view there is no discretion to grant access to exempt documents on the basis that it is in the public interest to do so: Neary v The Treasurer, New South Wales [2002] NSWADT 261. It follows, in my view, that the University is entitled to assert that legal professional privilege attached to the Kirby memorandum. Therefore, it is an exempt document by virtue of to Clause 10 of Schedule 1 of the FOI Act. Accordingly, the determination by the University to withhold the Kirby memorandum in full should be affirmed.

Costs

42 The University has sought costs in relation to part of the proceedings where Mr McGuirk sought an order that limited the representation available to the University. I refused Mr McGuirk’s application.

43 The Tribunal may award costs under section 88 of the Administrative Decisions Tribunal Act 1997 (“the ADT Act”) in respect of proceedings commenced by an application under the FOI Act. Section 88(1) of the ADT Act provides that the Tribunal may award costs only if it is satisfied that there are special circumstances warranting an award of costs. It is rare for the Tribunal to make costs orders in General Division matters. In obtaining an order for costs there are two hurdles to overcome. It is firstly necessary to identify “special circumstances”. It is then necessary to determine whether they “warrant an award of costs”: Gizah Pty Limited v. AXA Trustees Limited (No. 2) [2001] NSWADT 164 at [29].

44 “Special circumstances” are “circumstances that are out of the ordinary, but without having to be extraordinary or exceptional” and one needs to look for those circumstances that are “out of the ordinary” and then see whether they warrant an award of costs, whether in relation to the whole of the proceedings, part thereof or a proportion thereof.

45 While I agree that the application made by Mr McGuirk was misguided and somewhat out of the ordinary, I do not consider that it amounts to “special circumstances” for the purposes of section 88 of the ADT Act. Accordingly, the University’s application for costs is refused.

Orders:

1. The decision under review is affirmed.

2. No order for costs.