McGuirk v University of New South Wales
[2006] NSWADT 256
•01/09/2006
Pending Appeal:
CITATION: McGuirk v University of New South Wales [2006] NSWADT 256 DIVISION: General Division PARTIES: APPLICANT
Gerard Michael McGuirk
RESPONDENT
University of New South WalesFILE NUMBER: 053272 HEARING DATES: 1/03/2006 SUBMISSIONS CLOSED: 03/01/2006
DATE OF DECISION:
09/01/2006BEFORE: Montgomery S - Judicial Member CATCHWORDS: access to documents - advance deposit and fees and charges - access to documents - legal professional privilege - Freedom of Information Act - access to documents - advance deposit and fees and charges - 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 (Fees and Charges) Order 1989
Freedom of Information Act 1989CASES CITED: Commissioner, Australian Federal Police v Propend Finance Pry Ltd (1997) 188 CLR 501
Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543
Industrial Equity Ltd v Deputy Commissioner of Taxation (1990) 170 CLR 649
Mann v Carnell (l999) 201 CLR 1
McGuirk v University of New South Wales [2006] NSWADT 81
Neary v The Treasurer, New South Wales [2002] NSWADT 261
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
Waterford v Commonwealth (1987) 163 CLR 54REPRESENTATION: APPLICANT
RESPONDENT
In person
P Singleton, BarristerORDERS: The decisions under review are affirmed
1 Mr McGuirk has applied to the University of New South Wales for access to certain documents under the Freedom of Information Act 1989 (“the FOI Act”). By way of an application dated 26 May 2005 Mr McGuirk sought:
- "1. Copy of the delegation of authority from the UNSW Council in accordance with the University of New South Wales Act 1989 under which the approval of expenditure of University funds on the defence of Professors John Niland, John Ingleson, Roger Layton and Greg Whittred, and Mr Neil Morris ("Niland et al.") in the matter of McGuirk v Niland & Ors was authorised.
Alternatively
Copy of any resolution of the UNSW Council (or of the Chancellor's Committee) authorising the expenditure of University funds on the defence of Niland et al. in the matter of McGuirk v Niland & Ors.
Note that Part 14 clause 16 of the University of New South Wales Act 1989 states:
- "The Council may, in relation to any matter or class of matters, or in relation to any activity or function of the University, by resolution, delegate all or any of its functions (except this power of delegation) to any member or committee of the Council or to any authority or officer of the University or to any other person or body prescribed by the by-laws”.
3. Copy of any report to the UNSW Council (or to the Chancellor's Committee) on the expenditure of University funds on the defence of Niland et al. in the matter of McGuirk v Niland & Ors in accordance with Clause 1.3 “Reporting Requirements” of the UNSW Register of Delegations.
4. 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.
5. Letter from Ms Catherine Follent, A/Assistant Crown Solicitor to Mr Andrew Mullen Assistant University Solicitor, The University of New South Wales, dated 4 January 2005.
6. Email from Mr Andrew Mullen, Assistant University Solicitor, The University of New South Wales, to Ms Catherine Follent, A/Assistant Crown Solicitor dated I February 2005."
2 The University’s FOI Officer requested payment of an advance deposit in the amount of $405 and Mr McGuirk paid that amount. Mr McGuirk was subsequently refunded $60 of the advance deposit he had paid. The FOI Officer identified several documents that fell within the scope of Mr McGuirk’s application. She determined to release some of the documents and to withhold others. In the reasons for her determination she stated:
- 1. Resolutions of Council and Delegations of Authority
The University has caused searches to be undertaken for relevant Council minutes and financial delegations documents from 24 November 2003.
In determining which documents are covered by this part of your Application, I liaised with the Office of the Secretary to Council and the Legal Office. A number of files were inspected. I have determined that the relevant documents are those listed in the attached schedule as documents 1 - 4.
I have determined to release the enclosed documents 1 - 4 in full:
a) Document 1 is the Council Resolution and Financial Delegations current at 23 November 2003.
b) Document 2 is Council resolution CL 04/62 approving financial delegations on 19 April 2004. Although this Council Resolution is publicly available on the internet at I have released this document to you in full.
c) Document 3 is an extract of the relevant delegation from the UNSW Register of Delegations approved by Council on 19 April 2004.
d) Document 4 is the current version of the UNSW Register of Delegations effective 18 April 2005 (containing amended definitions relevant to the financial delegation). This document is also publicly available on the internet at
2. Authorisation by Vice-Chancellor of Expenditure
In determining which documents are covered by this part of your Application, I liaised with the Office of the Vice-Chancellor and the Records Administration Section. Eleven files were inspected. I have been advised that no such documents exist.
3. Report on Expenditure
In determining which documents are covered by this part of your Application I liaised with the office of the Secretary to Council and the Legal Office. I have been advised that no such report exists.
4. Correspondence between Mr Andrew Mullen and Crown Solicitor's Office (Parts 4, 5 and 6)
In determining which documents are covered by parts 4, 5 and 6 of your Application, I liaised with the Legal Office and consulted with relevant third parties. I have determined that the documents covered by your Application are those listed in the attached schedule as documents 5, 6 and 7. These documents relate to the dismissed private criminal prosecution brought by you.
I am advised that the documents were identified to you through a related FOI Application to the NSW Attorney General's Department. I have decided to withhold documents 5, 6 and 7 in full as I consider documents 6 and 7 to be partially exempt under clause 7 ("business affairs") and all three documents to be fully exempt under clause 10 ("legal professional privilege") of Schedule 1 of the FOI Act. A copy of these clauses is attached.
In reaching the decision that clause 7 is relevant and applicable I have considered the following matters:
In reaching the decision that clause 10 is relevant and applicable I have considered the following matters:
The documents contain information setting out the charge out rates of external legal practitioners in the private criminal prosecution commenced by you.
The withheld documents give precise information of the fees charged by third parties in the course of their business dealings. Third parties have been consulted by the University and have expressed views that information concerning their business affairs should be withheld.
Disclosure of the information in the withheld documents would disadvantage the third parties by revealing their charge out rates.
Refund of Part of Advance Deposit
The withheld documents record communications between the University's Assistant Solicitor and external solicitors at the Grown Solicitor's Office engaged by the University in connection with actual legal proceedings brought by you against employees or former employees of the University.
The withheld documents are confidential communications written in the course of a lawyer-client relationship for the purpose of preparing for and conducting the defence of these legal proceedings.
The withheld documents were brought into existence for the sole purpose (and certainly the dominant purpose) of preparing for these legal proceedings.
You paid an advance deposit in the amount of $405 to cover the costs of dealing with your Application. The time taken to process your Application was 11.5 hours. Accordingly, I am refunding that part of your advance deposit which was not required for processing your Application, being a cheque for $60 (2 hours at $30 an hour). The cheque is being processed and will be separately forwarded to you when available.
3 Mr McGuirk sought an internal review of the determination. He also requested a full refund of the advance deposit that he had paid. Mr Michael Milne, an Executive Officer to the University’s Deputy Vice-Chancellor (Academic) and Registrar, undertook that review. Mr Milne determined that the withheld documents are exempt documents under either or both of clause 7(1)(c) or clause 10 of Schedule 1 of the FOI Act. He also determined not to refund the balance of the advance deposit.
4 The Schedule provided with the determination provides a reasonable summary of to the University’s response to Mr McGuirk’s application:
Schedule of Documents
- Document 1 (12 pages)
Date/Time: 2 Dec 1996
Description: Council Resolution CL96/92-Financial Delegations to Officers of the University
Determination: Release in full
Document 2 (2 pages)
Date/Time: 19 April 2004
Description: Council Resolution CLO4/062
Determination: Release in full
Document 3 (2 pages)
Date/Time: 19 April 2004
Description: Relevant extracts of sections 2.2, 2.3 and5.3 from the UNSW Register of Delegations
Determination: Release in full
Document 4 (31 pages)
Date/Time: 18 April 2005
Description: Register of Delegations
Determination: Release in full
Document 5 (3 pages)
Date/Time: 21 Dec 2003 11.16am
Description: Email: Andrew Mullen to Ian Linwood including history emails
Determination: Withhold in full - Exempt Clause 10
Document 6 (2 pages)
Date/Time: 4 Jan 2005
Description: Letter: Catherine Follent to Andrew Mullen
Determination: Withhold in full - Exempt Clauses 7 and 10
Document 7 (2 pages)
Date/Time: 1 Feb 2005 10.07am
Description: Email: Andrew Mullen to Cate Follent including history emails
Determination: Withhold in full - Exempt Clauses 7 and 10
5 Mr McGuirk applied to the Tribunal for an external review of the University’s determination.
6 Copies of the following documents have been provided to the Tribunal on a confidential basis as annexures to a statement provided by Mr Andrew Mullen, a solicitor employed by the University:
- (a) email dated 21 December 2003 from Mr Mullen to Mr Ian Linwood, Assistant Crown Solicitor ("Document 5");
(b) letter dated 4 January 2005 from Ms Catherine Follent, Acting Assistant Crown Solicitor, to Mr Mullen ("Document 6"); and
(c) email from Mr Mullen to Ms Follent dated 1 February 2005 ("Document 7").
7 Both Mr Mullen and Mr Milne gave evidence at the hearing and were subjected to cross-examination by Mr McGuirk.
Applicable legislation
8 Section 21 of the FOI Act provides in part:
- 21 Agencies may require advance deposits
(1) If, in the opinion of an agency, the costs to the agency of dealing with an application are likely to exceed the amount of the application fee, the agency may request the applicant to pay to it such amount, by way of advance deposit, as the agency may determine.
(2) If, in the opinion of an agency, the costs to the agency of dealing with an application are likely to exceed the sum of the application fee and of any advance deposits paid in respect of the application, the agency may request the applicant to pay to it such amount, by way of further advance deposit, as the agency may determine.
(3) The amount of an advance deposit requested by an agency in respect of an application shall not be such that the sum of the application fee, the advance deposit and any further advance deposits paid in respect of the application exceeds such amount as, in the opinion of the agency, will be necessary to cover the costs of dealing with the application.
9 Section 28 of the FOI Act provides in part:
- 28 Notices of determination
(1) An agency shall cause written notice to be given to the applicant:
(a) of its determination of his or her application, or
(b) if the application relates to a document that is not held by the agency -of the fact that the agency does not hold such a document.
(2) Such a notice shall specify:
- …
- (i) the reasons for the refusal, and
(ii) the findings on any material questions of fact underlying those reasons, together with a reference to the sources of information on which those findings are based, and
- (i) a statement of any amount payable by the applicant, or
(ii) a statement of any amount refundable to the applicant,
(g) in the case of a determination of an amount referred to in paragraph (b) or (f) or a determination referred to in paragraph (c), (d) or (e):
- (i) the name and designation of the officer by whom the determination was made, and
(ii) the rights of review and appeal, and the rights of complaint to the Ombudsman, conferred by this Act and the Ombudsman Act 1974 in relation to the determination, and
(iii) the procedures to be followed for the purpose of exercising those rights,
10 Section 67 of the FOI Act provides in part:
- 67 Fees and charges
(1) The Minister may, by order published in the Gazette, establish guidelines in relation to the imposition, collection, remittal and waiver of fees and charges under this Act.
…
(3) An agency or Minister, in determining the amount of any fee or charge under this Act, shall not contravene any guidelines in force under this section.
(3A) The guidelines in force under this section are to be taken into account:
(a) by the Tribunal when reviewing a determination described in section 53 (3) (a) (iv) or (v), and
…
(3B) A charge under this Act for dealing with an application or for giving access to a document is not to include any amount for additional time spent in searching for a document that was lost or misplaced.
11 Clause 7 of Schedule 1 of the FOI Act provides in part:
- 7 Documents affecting business affairs
(1) A document is an exempt document:
…
(c) if it contains matter the disclosure of which:
- (i) would disclose information (other than trade secrets or information referred to in paragraph (b)) concerning the business, professional, commercial or financial affairs of any agency or any other person, and
(ii) could reasonably be expected to have an unreasonable adverse effect on those affairs or to prejudice the future supply of such information to the Government or to an agency.
12 Clause 10 of Schedule 1 of the FOI Act relevantly 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 Freedom of Information (Fees and Charges) Order 1989 relates to the “charges” to be imposed under section 24(b) and section 24(c) for “dealing with” an application and for “giving access” to a document. Clause 5 states that:
- (1) The charges
(a) for the giving of access to a document (being a charge determined under section 24(b) of the Act); and
(b) for dealing with an application (being a charge determined under section 24(c) of the Act,
are to be calculated on the basis of an hourly rate of $30 per hour.
(2) Such a charge is not to be imposed in respect of -
(a) the first 20 hours during which -
- (i) an application under section 17 or 36 of the Act (being an application made by a natural person in respect of documents relating to his or her personal affairs) is dealt with; or
(ii) access to a document the subject of such an application is give; or
(3) Such a charge is to be calculated on the time spent by the agency’s or Minister’s staff in actually dealing with the application or giving access to the document, calculated to the nearest quarter of an hour.
14 There are two issues for determination. Firstly, whether the University was entitled to request an advance deposit and if so, how much? Secondly, whether the University’s determination that the withheld documents are exempt was the correct and preferable decision.
15 The University did not press the issue of whether the documents are exempt pursuant to clause 7 of Schedule 1 of the FOI Act.
The advance deposit request
16 Mr McGuirk contends that the University’s request for an advance deposit was invalid and improper and in breach of the government policy to which the University is required to give effect. He argues that the University has a discretion to charge fees but the discretion is to be exercised as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, the disclosure of information: section 5(3)(b) of the FOI Act. He contends that the University is using the provisions of section 21 of the FOI Act to frustrate that fundamental object of the Act.
17 Mr McGuirk queried whether a request for the total estimated cost of processing an application was in fact a ‘deposit’. He contends that a deposit must be something less than the total. He also says that in order to comply with section 28 of the FOI Act the refund cheque that he was given should have accompanied the Notice of determination. As the cheque was sent separately, the University was in breach of the FOI Act. He does not dispute the University’s evidence that it undertook the work for which the deposit was requested. However he disputes the University’s assertion that his application was imprecise and broad. He asserts that it was in fact focused and modest. The University had no difficulty in locating the files and documents affected by his request. He submitted that his application did not involve anything like the scale of documents and the scale of agency effort dealt with in many other cases.
18 He points to the FOI Procedure Manual Third Edition 1994 (“the Procedure Manual”), issued by the NSW Premier's Department which emphasises the fundamental principles underlying the FOI Act, and the manner in which it is to be interpreted. Section 2.14.6 of the Procedure Manual states in part:
- 2.14.6. Advance deposits
Advance deposits of amounts up to but not exceeding the estimated total cost of processing an application may be required. The Act allows the agency or Minister to nominate the amount of any such deposit. It is expected, however, that advance deposits will be used only with large scale requests involving significant charges. [policy]
19 Section 64 of the Administrative Decisions Tribunal Act 1997 requires that the Tribunal give effect to any relevant Government policy in force at the time the reviewable decision was made except to the extent that the policy is contrary to law or the policy produces an unjust decision in the circumstances of the case.
20 Mr McGuirk contends that his request was not a ‘large scale request’ and did not involve ‘significant charges’. He also contends that the University cannot request an advance deposit for documents which do not exist or for time spent in searching for a document that was lost or misplaced: section 67(3B) of the FOI Act.
21 The argument presented on behalf of the University is essentially the same as that presented in McGuirk v University of New South Wales [2006] NSWADT 81. Mr Singleton submits that section 2.14.6 of the FOI Procedure Manual can be interpreted as policy for the purposes of section 64 of the ADT Act. However, he also submits that it is to be seen as a guideline and is not binding. The University contends that the use of the words “It is expected” in section 2.14.6 of the Procedure Manual makes it clear that it is a flexible guideline.
22 The University contends that it has discretion to request an advance deposit. While it concedes that the use of an advance deposit request in order to suppress documents would be a factor that could be taken into account by the Tribunal, in this matter there is no evidence to suggest that the request was used to suppress documents. In fact Mr McGuirk was given some documents. A determination was made to release documents caught by the FOI application, with the exception of 3 documents. The University asserts that the amount that Mr McGuirk was charged reflects the time taken by the University.
23 Mr Singleton submits that this application should not be viewed in isolation but as one a many brought by Mr McGuirk. He says that the policy should not be applied with full vigour even if it is not a large scale application. The University relies on a statement of Mr Milne in which he refers to the history of FOI applications made by Mr McGuirk and the increased workload created by those applications. The University has estimated that over the past year approximately 70% of the work that the University does pursuant to the FOI Act is generated by Mr McGuirk. As a result of the increase in work under the FOI Act, the University has had to redirect a second member of staff to assist the Head of the Policy Management Unit to deal with applications under the FOI Act. The most significant single cause of the need to retain this extra staff member has been the applications made by Mr McGuirk.
Findings with respect to the advance deposit request
24 In my view, the definition of ‘deposit’ that Mr McGuirk urges is unreasonably narrow. While there are dictionary definitions of the term of ‘deposit’ that support Mr McGuirk’s contention, the meaning will depend on the context in which the word is used. The FOI Act and the Procedure Manual anticipate that an agency might request as an advanced deposit, the amount that it estimates is necessary to undertake the work required to process an application. It is also anticipated that a refund will be payable if the amount of the advance deposit paid is greater than is warranted by the actual the work required to process an application. Included in the definitions offered in the Australian Concise Oxford Dictionary the term ‘deposit’ is defined to mean:
- “deposit: n. & v. --n.
1 a a sum of money kept in an account in a bank. b anything stored or entrusted for safe keeping, usu. in a bank.
2 a a sum payable as a first instalment on an item bought on hire purchase, or as a pledge for a contract. b a returnable sum payable on the short-term hire of a car, boat, etc. …”
25 Included in the definitions offered in the Macquarie Dictionary are:
- "4. to give as security or in part payment"; and
"10. anything given as security or in part payment”.
26 In the context of section 21 of the FOI Act the term ‘deposit’ cannot mean ‘part payment’. In my view the term should be taken to include a sum of the kind requested by the University in relation to this application.
27 I agree with Mr McGuirk that his application was focused and narrow. I do not agree with Mr Milne’s classification of the application as imprecise and broad in nature. However, I do accept that it required a careful inspection and analysis of the request and the documents possibly caught by the FOI application. I am satisfied that the liaison and consultation undertaken was a necessary part of processing the application and that the University’s evidence provides an accurate account of the time taken in relation to the application. In the absence of evidence to contradict it, I should accept the evidence given by Mr Milne in regard to time taken by the University of determining Mr McGuirk’s application.
28 I do not accept that the University could determine that it does not hold a requested document without undertaking a search. Accordingly, it is reasonable that the University should include the time to undertake such a search in the assessment of the time taken to determine Mr McGuirk’s application. I am not satisfied that time was spent in searching for a document that was lost or misplaced and therefore section 67(3B) of the FOI Act has no application in the circumstances of this matter.
29 I note that Mr McGuirk has asserted that the University is attempting to use a request for payment of an advance deposit for the purposes of frustrating the objects of the FOI Act. I agree with the submission that the exercise of power for a purpose other than that conferred will be ultra vires, however in the circumstances of this matter there is no evidence to support Mr McGuirk’s assertion.
30 I accept the evidence given by Mr Milne in regard to the burden placed on the University by the various applications that Mr McGuirk has made under the FOI Act. In my view this is a relevant consideration in determining how to exercise the discretion given under section 21 of the FOI Act. This is consistent with the need for a balanced approach reflected by section 5(2) of the FOI Act, which makes the right to be given access to documents subject to restrictions as are reasonably necessary for the proper administration of the Government.
31 I also agree that section 2.14.6 of the Procedure Manual is a relevant Government policy and that the Tribunal must generally give effect to any relevant Government policy. However, it need not do so if the policy is contrary to law or produces an unjust decision in the circumstances of the case. In my view, consideration of the circumstances of the case requires consideration of fact that this is not an isolated application by Mr McGuirk. It also requires consideration of the burden that Mr McGuirk’s applications have placed on the University. When those factors are taken into account, a decision that the University could not request an advance deposit would be an unjust decision.
32 It is my view, that University was entitled to request the payment of an advance deposit. In the circumstances the amount sought exceeded the amount required and Mr McGuirk was refunded the excess. I agree with Mr McGuirk that the refund should have been made at the time of the determination. Nevertheless, the determination by the University to refuse to refund the whole of the advance deposit that he paid was the correct and preferable decision and therefore it should be affirmed.
Legal professional privilege
33 Mr Mullen’s evidence is that the withheld documents arose out of private criminal prosecutions commenced by Mr McGuirk against employees or former employees of the University (“the McGuirk v Niland & Ors matter”). The University contends that each of the withheld documents is exempt under clause 10 of schedule 1 to the FOI Act. Mr Singleton submits that legal professional privilege applies to each of the withheld documents. He argues that it does not matter whether the University was a party to the litigation.
34 The essence of the University’s argument is that legal professional privilege operates to permit the non-disclosure of a number of categories of confidential communication made in the course of a client-lawyer relationship and that the categories of communication include those made in connection with litigation. Privilege extends to documents prepared for the dominant purpose of obtaining or giving legal advice in connection with litigation. In-house lawyers, counsel and senior counsel are lawyers to which legal professional privilege relates.
35 The University says that the defendants in the McGuirk v Niland & Ors matter had a team of lawyers. Mr Mullen’s evidence is that each of the defendants requested the University Solicitor to provide him with legal assistance and that the University Solicitor referred each of the matters to him for carriage i.e. acting in the role of solicitor on a day-to-day basis. He also gave evidence of the role he played in relation to those defendants. He organised for the Crown Solicitor to act for each of the defendants and referred the matters to Mr Ian Linwood, the Assistant Crown Solicitor responsible for the Criminal Law Team of the Crown Solicitor's Office.
36 Mr Mullen said that part of his role was to ensure that the Crown Solicitor's Office appropriately managed and conducted the defence of the criminal proceedings. He liaised with Mr Linwood and other solicitors of the Crown Solicitor's Office in respect of issues arising in the course of the criminal proceedings and ensured that all relevant persons were kept abreast of information relevant to their role in the case. His evidence places each of the withheld documents within the confines of his role as a solicitor acting for the defendants.
37 The onus rests on the University to show that the elements of legal professional privilege have been established. Mr Singleton submits that the University has satisfied this onus and it is then for Mr McGuirk to put forward evidence to support an argument that privilege has been waived. He submits that Mr McGuirk has not put forward evidence to support waiver and accordingly the University’s determination should be upheld.
38 Mr McGuirk contends that the University was not a party to the McGuirk v Niland & Ors matter and there was no client-solicitor relationship between the University and the Crown Solicitor's Office. He relies on correspondence from the Crown Solicitor, which states that he was never instructed to act in the matter. An issue here is whether Mr Mullen was acting on behalf of the University or on behalf of the defendants in the McGuirk v Niland & Ors matter.
39 Mr McGuirk argues that the elements of legal professional privilege have not been established. He says that there was no solicitor-client relationship; confidentiality was not maintained as the documents were shared with a third party; and Mr Mullen was not a professionally independent solicitor. He contends that the culture of the University was not one in which a solicitor can act independently. He 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.
40 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.
41 He further contends that legal professional privilege does not attach to documents that were created with the intent of furthering an illegal purpose. He asserts that in this matter the illegal purpose is the suppression of criminal breaches of the Protective Disclosures Act 1994 by the defendants in the McGuirk v Niland & Ors matter. He says that public monies have been used improperly to fund the obtaining of legal advice and services from the Crown Solicitor's Office.
Findings with respect to legal professional privilege
42 Legal professional privilege is a rule of substantive law, which enables a person to resist the giving of information or the production of a document which would reveal communications between the person and his or her lawyer made for the dominant purpose of giving or obtaining legal advice, or the provision of legal services, including representation in legal proceedings: Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543 at [11].
43 In Commissioner, Australian Federal Police v Propend Finance Pry Ltd (1997) 188 CLR 501 McHugh J said at 553:
- "The privilege attaches whenever the communication or material is made or recorded for the purpose of confidential use in litigation or the obtaining of confidential legal advice. The protected communication or material may be a telephone conversation between a solicitor and client, a research memo of the legal adviser on an issue pertinent to the client's affairs or, as in the present case, the collection and collation of material and documents for the purpose of litigation or obtaining legal advice. As long as the communication was made or the material recorded for the sole purpose of legal advice or pending litigation and was intended to be confidential, the actual form of the communication or recording is irrelevant."
44 In Trade Practices Commission v Sterling (1979) 36 FLR 244 at 245-246 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”.
45 In Waterford v Commonwealth (1987) 163 CLR 54, the High Court held that legal professional privilege can apply to legal advice from in house solicitors. 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.
46 Mr McGuirk has asserted that the culture within the University was such that Mr Mullen was unable to provide advice of an independent character. However, there is no evidence to support that assertion. Mr Mullen has denied the assertion. These assertions inevitably require a determination as to whether the evidence given by Mr Mullen is accepted.
47 I accept Mr Mullen’s evidence in relation to the role he played with respect to the defendants in the McGuirk v Niland & Ors matter. I am satisfied that there was a solicitor-client relationship between Mr Mullen and those defendants. I also accept Mr Mullen’s evidence in relation to the circumstances surrounding the preparation and receipt of the withheld documents. I find on balance that the criteria set out in Waterford have been satisfied in regard to the withheld documents. Mr Mullen is clearly a qualified lawyer. I am satisfied that he was acting in his capacity as a professional legal adviser, in a true solicitor-client relationship with the defendants in the McGuirk v Niland & Ors matter. I am satisfied that the giving of the advice was attended by the necessary degree of independence.
48 I am satisfied that the withheld documents fall squarely within one of the categories of legal professional privilege as outlined by Lockhart J in Trade Practices Commission v Sterling. They would attract legal professional privilege if the necessary elements have been established.
49 Mr McGuirk has asserted that the withheld documents were created with the intent of furthering an illegal or improper purpose. It is for Mr McGuirk to demonstrate a prima facie case. He must establish a proper evidentiary basis for such a claim. 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.
50 In my view, Mr McGuirk has done no more than suggest that the communication was made in furtherance of an improper purpose. No evidence has been adduced which amounts to more than expressions of the personal feelings and a sense of grievance. I cannot be satisfied to the requisite standard that this was the case. In my view, the withheld documents attract legal professional privilege.
51 It is therefore necessary to determine whether that legal professional privilege has been waived. Legal professional privilege is for the benefit of the client and it is the client who may waive this privilege. Mann v Carnell at [28] - [29] establishes the principle that privilege is waived if there is inconsistency between the conduct of the client and maintenance of the confidentiality. I do not agree with Mr McGuirk’s assertion that the privilege has been waived.
52 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 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 withheld documents. They are exempt documents by virtue of to Clause 10 of Schedule 1 of the FOI Act. Accordingly, the determination by the University to withhold the documents in full should be affirmed.
Order
- The decisions under review are affirmed.
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