McGuirk v University of New South Wales (GD)

[2007] NSWADTAP 1

Appeal Panel - Internal

CITATION:	McGuirk v University of New South Wales (GD) [2007] NSWADTAP 1
PARTIES:	APPELLANT Michael McGuirk RESPONDENT University of New South Wales
FILE NUMBER:	069017
HEARING DATES:	20/07/2006
SUBMISSIONS CLOSED:	20 July 2006
DATE OF DECISION:	9 January 2007
BEFORE:	Hennessy N - Magistrate (Deputy President); Wilson R - Judicial Member; Blake C - Non Judicial Member
CATCHWORDS:	application of legal test to facts - bias - fail to consider fully the evidence and legal argument - fail to exercise discretinary power - unreasonableness
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	053246
DATE OF DECISION UNDER APPEAL:	03/23/2006
LEGISLATION CITED:	Administrative Decisions (Judicial Review) Act 1977 (Cth) Administrative Decisions Tribunal Act 1997 Guardianship Act 1987 Privacy and Personal Information Protection Act 1998 Protected Disclosures Act 1994
CASES CITED:	Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 Attorney-General (NSW) v X (2000) 49 NSWLR 653 Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 75 ALJR 277 Haines v Leves (1987) 8 NSWLR 442 K v K [2000] NSWSC 1052 Kioa v West (1985) 159 CLR 550 KO & anor v Commissioner of Police, New South Wales Police (GD) [2004] NSWADTAP 21 Lloyd v Veterinary Surgeons Investigating Committee [2005] NSWCA 456 Mangoplah Pastoral Co Pty Ltd v Great Southern Energy [1999] NSWADT 93 Neary v The Treasurer, New South Wales [2002] NSWADT 261 Prasad v Minister for Immigration and Ethnic Affairs (1985) 65 ALR 549 University of New South Wales v Gerard Michael McGuirk [2006] NSWSC 1362 Waterford v Commonwealth (1987) 163 CLR 54
REPRESENTATION:	APPELLANT In person RESPONDENT P Singleton, counsel
ORDERS:	Leave is granted for the appeal to be extended to the merits of the Tribunal’s decision but only as to whether the Tribunal should exercise its discretion to give Mr McGuirk access to the Kirby memorandum, notwithstanding that it is an exempt document.

Introduction

1 Mr McGuirk has appealed against a decision of the Tribunal under the Freedom of Information Act 1989 (FOI Act) refusing him access to a document held by the University of New South Wales. The document, known as the “Kirby memorandum”, was written by Ms Carol Kirby, a solicitor employed by the University. It is addressed to Professor Rory Hume, the then Vice Chancellor. The memorandum was written in response to a letter Mr McGuirk wrote to Professor Hume on 24 November 2003. That letter advised Professor Hume that he had initiated legal proceedings in the Local Court against a number of current and former employees of the University for breaches of the Protected Disclosures Act 1994. Ms Kirby says that one of the purposes of the memorandum was to provide legal advice to Professor Hume in relation to those matters.

2 The University refused to give Mr McGuirk access to a copy of the Kirby memorandum on the ground that it was subject to legal professional privilege. Although the general rule is that a person has a legally enforceable right to be given access to an agency’s documents, that right is subject to the provisions of the FOI Act. There is an exception in that Act for documents subject to legal professional privilege: s 16 and Schedule 1, Cl 10. The purpose of the privilege is to facilitate the seeking and giving of legal advice so that the law is applied and litigation is properly conducted. Mr McGuirk said that while confidential communications between a solicitor and client are generally subject to legal professional privilege, that is not the case when the advice is given to assist in, or to advance, an illegal or improper purpose. He said that the purpose of the Kirby memorandum was to advise Professor Hume on how best to protect certain officers of the University from the consequences of their allegedly criminal breaches of the Protected Disclosures Act 1994.

3 The Tribunal affirmed the University’s decision to refuse access to the Kirby memorandum. Mr McGuirk has appealed against that decision.

Appeal Panel’s jurisdiction

4 Mr McGuirk may appeal to the Appeal Panel "on any question of law": Administrative Decisions Tribunal Act 1997 (ADT Act), s 113(2)(a). Mr McGuirk applied for leave for the appeal to be extended to the merits of the Tribunal’s decision: ADT Act, s 113(2)(b). We consider that application at [51-53] below.

5 The University bears the onus of establishing that its determination is justified: FOI Act, s 61. However, on appeal, it is the appellant, Mr McGuirk, who must make out the grounds of appeal. Any suggestion by him that the University carries an onus in relation to the grounds of appeal is not correct.

Preliminary issue

6 Were Mr Singleton and Ms Kirby acting on instructions? Mr McGuirk said that there was no evidence that the University itself asserts that the Kirby memorandum is exempt because it is subject to legal professional privilege. In making that submission, Mr McGuirk is implicitly asserting that Mr Singleton and/or Ms Kirby may be acting without instructions on that point. Mr Singleton told the Appeal Panel that he was instructed by the University. In those circumstances, it is not incumbent on Mr Singleton or Ms Kirby to adduce evidence of their instructions. This is not the jurisdiction in which allegations of misconduct against barristers or solicitors are to be determined.

7 Can Ms Kirby claim privilege over her own memorandum? Mr McGuirk made several submissions about the professional conduct of Ms Kirby, including alleged breaches of the Law Society of New South Wales Professional Conduct and Practice Rules. (The Solicitors' Rules, made under the Legal Profession Act 1987 are deemed (by virtue of Schedule 9 clause 24 of the 2004 Act) to have been made under the Legal Profession Act 2004.) As we have said, this is not the jurisdiction in which allegations of misconduct against Ms Kirby are to be determined. Mr McGuirk also raised those allegations in the context of submitting that Ms Kirby is not independent of the University and thus her advice does not attract privilege. We deal with this aspect of Mr McGuirk’s submission at [40] below.

Tribunal’s decision

8 The Tribunal’s role was to conduct a merits review of the University’s decision: ADT Act, s 63. The Tribunal noted that the University has the burden of establishing that their decision not to release the Kirby memorandum was the correct and preferable decision: FOI Act, s 61. The University relied on a written statement from Ms Kirby. Mr McGuirk cross examined her on that evidence. The Tribunal summarised Mr Kirby’s evidence at [8] to [10] of the decision:

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.

9 The Tribunal accepted Mr McGuirk’s summary of the legal principles relating to legal professional privilege set out at [14] to [18]:

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

10 The grounds on which Mr McGuirk challenged the University’s decision can be summarised as follows:

(a) the Memorandum was not written by a solicitor who was independent;

(b) the Memorandum was given for an illegal purpose;

(c) the Memorandum was not created for the dominant purpose of giving or receiving legal advice or for use in or in connection with actual or anticipated litigation;

(d) the requisite solicitor/client relationship was not present;

(e) the University waived its right to claim legal professional privilege;

(f) the University should have exercised its discretion to release the document notwithstanding that they regarded it as an exempt document.

11 The Tribunal addressed each of these issues. In relation to (a), Mr McGuirk submitted that the advice was not given with the necessary degree of independence and referred to a number of academic and media discussions about the culture within academic institutions. He said that the University’s culture meant that the Memorandum lacked independence. The Tribunal found that the evidence on which Mr McGuirk had relied in relation to the prevailing culture within the University was insufficient to establish that there was a lack of independence in relation to the advice in the Memorandum.

12 In relation to (b), Mr McGuirk submitted that the Memorandum was part of a criminal, or at least, an unlawful proceeding, or was made in furtherance of an illegal object. According to Mr McGuirk, Ms Kirby and other officers of the University acted improperly in using public funds to defend proceedings against officers of the University which he had commenced. He said that because the proceedings alleged breaches of the Protected Disclosures Act 1994 by individual officers of the University, the University was in breach of the “Guidelines for the Provision of Ex Gratia Assistance for Legal Representation for Ministers of the Crown, Public Officials and Crown Employees” by giving legal assistance to those officers. The Tribunal rejected that submission saying that the evidence on which Mr McGuirk had relied did no more than “suggest” that the communication was part of a criminal or unlawful proceeding, or that it was made in furtherance of an illegal object. According to the Tribunal, “it is for Mr McGuirk to demonstrate a prima facie case of the furtherance of an illegal object.” The Tribunal added that “[M]ere allegation is not enough.”

13 In relation to (c), the Tribunal found on the basis of Ms Kirby’s evidence that the Memorandum was created for the dominant purpose of giving legal advice in connection with anticipated litigation. In relation to (d), Mr McGuirk submitted that because the relationship between Professor Hume and Ms Kirby was that of employer and employee, the requisite solicitor/client relationship was not present. The Tribunal was satisfied that in giving the advice contained in the Memorandum Ms Kirby was acting in her capacity as a professional legal adviser and that the relationship between her and Professor Hume was that of solicitor and client.

14 The Tribunal rejected Mr McGuirk’s submission that the University had waived the privilege because of Professor Hume’s conduct in writing to him on 9 December 2003. The Tribunal said that the conduct to which Mr McGuirk had referred was not inconsistent with the maintenance of the confidentiality that the privilege is intended to protect.

15 Finally, the Tribunal rejected Mr McGuirk’s submission that it has power to grant access to the Kirby Memorandum even if the University discharges its onus of establishing that it is subject to legal professional privilege. The Tribunal has previously noted that this discretion is sometimes referred to, inaccurately, as an “override discretion”: Mangoplah Pastoral Co Pty Ltd v Great Southern Energy [1999] NSWADT 93 at [17].

Grounds of appeal on questions of law

16 Mr McGuirk appealed on five grounds. In summary, those grounds were that the Tribunal:

(1) erred by failing to consider fully the evidence and the legal argument before it;

(2) erred by failing to properly apply the test of legal professional independence described by the High Court in Waterford v Commonwealth (1987) 163 CLR 54;

(3) was biased;

(4) erred by failing to acknowledge that it had a discretion to “override” the University’s decision and by failing to exercise that discretion to set aside the decision; and

(5) made a decision that was “so unreasonable that no reasonable authority could ever have come to it”.

17 We have relied on the Notice of Appeal to identify these grounds. Mr McGuirk mentions other grounds of appeal in his written submissions. The University requested that if we were minded to address matters beyond the grounds of appeal and the question of extension to the merits then the University would wish to be informed and heard. In our view it would be procedurally unfair to address matters raised in Mr McGuirk’s written submissions other than those matters which expand on the grounds of appeal in the Notice of Appeal.

18 When considering each of these grounds of appeal, it is helpful to keep in mind the three stages of the determinative process in which a decision maker could make a legal error. Those stages are:

(a) when “determining the fact by way of primary findings and inferences”;

(b) when “directing himself as to the law” and

(c) when “applying the law to the facts as found”: Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139, per Glass JA at 156.

19 The Tribunal may also make errors relating to procedural fairness including not bringing an unbiased mind to the determination of the matter. Rather than addressing Mr McGuirk’s grounds of appeal in the order he presented them, we have decided to discuss them in relation to the stages of the determinative process to which they relate and then to consider the grounds of appeal based on a breach of procedural fairness.

Determining the facts – ground 1

20 Mr McGuirk’s first ground of appeal relates, in part, to the first stage of the determinative process, namely making findings of fact. He says that the Tribunal failed to fully consider the evidence before it as required by s 63(1) of the ADT Act:

(1) In determining an application for a review of a reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it , including the following:
(a) any relevant factual material,

(b) any applicable written or unwritten law. (Emphasis added.)

21 Mr McGuirk said that the material “then before it” includes transcripts of other proceedings under the FOI Act between himself and the University. He referred, in particular, to a transcript relating to a previous application to the Tribunal for a review of a decision of the University refusing him access to the Kirby memorandum. Although no transcripts were tendered in the Tribunal proceedings below, Mr McGuirk said that those documents were “before it”, at least “constructively”. Alternatively, Mr McGuirk said that, in accordance with s 73(5)(b) of the ADT Act, the Tribunal was obliged to ensure it was disclosed.

22 In support of his submission that the transcripts in other Tribunal proceedings involving the same parties were “constructively” before the Tribunal, Mr McGuirk cited the decision in Prasad v Minister for Immigration and Ethnic Affairs (1985) 65 ALR 549. In that case, Wilcox J was determining an application for judicial review under the Administrative Decisions (Judicial Review) Act 1977 (Cth). The Minister had refused Mr Prasad’s application for a permanent entry permit and one of the grounds for judicial review was that he had failed to take into account a relevant consideration, namely a report of an interviewing officer. Wilcox J found at 559, that the report was on the departmental file and must be regarded as having been “constructively” before the Minister.

23 Prasad can be distinguished from the present case on at least two grounds. Firstly, in the present case the transcripts of other proceedings were not on the file that relates to these proceedings. Mr McGuirk did not file or serve them in these proceedings or seek to tender them at the hearing. Secondly, although 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, it must comply with the principles of procedural fairness: ADT Act, s 73(2). The hearing rule, which is one aspect of the rules of procedural fairness, is that in the ordinary case, a person whose interests, rights or legitimate expectations are affected should be given an opportunity to deal with adverse information that is ‘credible, relevant and significant to the decision to be made': Kioa v West (1985) 159 CLR 550 at 584, Brennan J at 629.

24 In our view, the reference in s 63 of the ADT Act to “material then before it” is a reference to material before the Tribunal in relation to a particular application for review of a reviewable decision. The conventional method of identifying such material is to tender it in evidence before the Tribunal. Given that the Tribunal “may inquire into and inform itself on any matter in such manner as it thinks fit” formal tender may not be required in every case. But procedural fairness is required. The hearing rule requires that the University be given an adequate opportunity to deal with adverse information. It cannot do so unless that information is identified sufficiently to allow the University to respond. That did not occur in this case.

25 Mr McGuirk’s alternative submission was that the Tribunal was in breach of s 73(5)(b) of the ADT Act which requires the Tribunal “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”. The Tribunal has rarely considered the meaning or effect of this provision but it is intended to ensure that the Tribunal is able to require parties to produce evidence which may be relevant to an issue in the proceedings. Typically, that evidence will be evidence that an administrator has within its knowledge or possession. For example, in a case under the Privacy and Personal Information Protection Act 1998, the Appeal Panel has observed that:

The present jurisdiction relates to the conduct of public sector agencies. As noted earlier, the applicant may have a general awareness of the occurrence of conduct that is, on its face, governed by the Privacy Act; and the applicant may not be in a position to identify precisely the details of the conduct. In these circumstances, the Tribunal should play a more active role to ensure that all the relevant facts are before it. In a case of the present kind, relating to suspected disclosure of personal information about an individual as between an agency officer and a third person, if the agency does not willingly supply a statement or affidavit from the officer, the Tribunal should give a direction to that effect: KO & anor -v- Commissioner of Police, New South Wales Police (GD) [2004] NSWADTAP 21 at [59].

26 The Appeal Panel concluded in that case that the Tribunal’s failure to obtain evidence about a conversation between the respondent agency and the applicant’s employer constituted a denial of procedural fairness. The present case is not analogous to the situation in KO. The circumstances of the conduct in KO were exclusively within the knowledge of the agency and the agency was not forthcoming in relation to the conduct which the Tribunal had been asked to review. In the present case, the material on which Mr McGuirk sought to rely was material to which both parties had access. There was no suggestion of the University (or Mr McGuirk) withholding evidence relevant to a review of the University’s decision. Compliance with s 73(5)(b) did not require the Tribunal (or the Appeal Panel) to direct the University, or Mr McGuirk, to produce transcripts of previous proceedings between them.

Material before the Tribunal

27 Since Mr McGuirk can only rely on material that was before the Tribunal, we need to identify that material. As far as we can ascertain, the material before the tribunal was:

1. Mr McGuirk’s application for documents to the University dated 6 June 2005;

2. the University’s letter in response refusing access to the Kirby memorandum dated 28 June 2005;

3. Mr McGuirk’s request for internal review dated 1 July 2005;

4. the University’s internal review dated 18 July 2005 refusing access to Kirby memorandum;

5. Mr McGuirk’s application for Review filed with the Tribunal on 20 July 2005;

6. statement of Ms C Kirby dated 7 November 2005;

7. submissions from Mr McGuirk dated 24 October 2005 with 10 attachments;

8. submissions and attachments from Mr McGuirk dated 14 November 2005;

9. submissions and attachments from Mr McGuirk dated 21 November 2005; and

10. The Kirby Memorandum (confidential exhibit).

28 The Tribunal did not take into account a letter dated 30 December 2005 from Mr McGuirk to the Tribunal received after the hearing had concluded but before the decision had been delivered.

29 The second aspect of Mr McGuirk’s appeal against findings of fact is that the Tribunal made certain findings when either there was no evidence to support those findings or there was strong or irrefutable evidence to the contrary. Mr McGuirk cited the Tribunal’s finding that Ms Kirby had the necessary degree of independence from the University as a finding made without evidence. Mr McGuirk also said that the Tribunal had ignored evidence that the University Council itself was of the view that Mr Kirby did not have the necessary degree of independence to properly advise it.

30 The classic statement of the law on when a finding of fact can constitute an error of law was made by the Court of Appeal in Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 149. That decision has been applied consistently by the Supreme Court and the Court of Appeal since 1985 and is binding on the Appeal Panel. It stands for the proposition that there is no error of law in making a finding of fact for which there was some evidence, even though the finding was "perverse" or contrary to the overwhelming weight of evidence. (See Glass JA with whom Samuels JA agreed, at 155-156.) Kirby P (who was in the minority in Azzopardi) pointed out in Haines v Leves (1987) 8 NSWLR 442 at 469 that the binding rule was that when determining an appeal on a question of law, the Court may not review findings of fact even if “no reasonable person could have reached the decision made”.

31 The Tribunal accepted Ms Kirby’s evidence in relation to the preparation of the memorandum and made the following findings of fact at [34]:

Ms Kirby was acting in her capacity as a professional legal adviser, in a true solicitor/client relationship; and

The giving of the advice was attended by the necessary degree of independence.

32 The Tribunal also found, at [36], that Mr McGuirk had not made out a prima facie case that a purpose of the Kirby memorandum was to further an illegal purpose. None of these findings was made without evidence. Ms Kirby gave evidence refuting any improper purpose. In relation to the finding of independence, the Tribunal noted that she 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. In those circumstances, Mr McGuirk’s submission that the finding that Ms Kirby had the necessary degree of independence was made without evidence is not correct.

Directing himself to the law – ground 4

33 The fourth ground of appeal was that the Tribunal erred by failing to acknowledge that it had a discretion to override the University’s decision. Mr McGuirk said that the Tribunal should have exercised its discretion to order the release of the Kirby memorandum in the interests of addressing and exposing, the pattern of corrupt conduct by certain officers of the University in regard to the treatment of whistleblowers at that University. In making that submission, Mr McGuirk relied on the Tribunal’s decision in Mangoplah Pastoral Co Pty Ltd v Great Southern Energy [1999] NSWADT 93. In that case, the Tribunal found that the use of the word “may” in s 25(1) of the FOI Act (An agency may refuse access to a document . . .) means that an agency has a discretion to release a document even if it is an exempt document. Section 63 of the ADT Act requires the Tribunal, when determining an application for review of a reviewable decision, to decide what the “correct and preferable decision is having regard to the material then before it”. In doing so, the Tribunal may “exercise all the functions that are conferred or imposed” by the FOI Act on the administrator who made the decision. As the administrator has a discretion to release a document even if it is exempt, the Tribunal reasoned that it has a duty when reviewing a determination under s 24 and 25 of the FOI Act to consider whether the document should be released.

34 The Tribunal applied the reasoning in Mangoplah until the President of the Tribunal, O’Connor P, handed down a decision in Neary v The Treasurer, New South Wales [2002] NSWADT 261 on 13 December 2002. In his capacity as Divisional Head of the General Division, and in the absence of any Appeal Panel ruling to the contrary, O’Connor P ruled that there was no “public interest override” discretion conferred on the Tribunal by the FOI Act. The University urged the Tribunal to adopt the reasoning in Neary and provided further arguments in support of the decision in that case. Mr McGuirk provided detailed submissions as to why the decision in Neary was wrong.

35 On 11 December 2006, after we had reserved our decision but before the publication of these reasons, Nicholas J handed down a decision which concluded that:

In my opinion s 63 ADT Act provides the Tribunal with the discretion to order access to be given to documents which are exempt documents under the FOI Act if it decides that to do so is the correct and preferable decision with regard to the material then before it: University of New South Wales v Gerard Michael McGuirk [2006] NSWSC 1362 at [102].

36 Given this decision, which is binding on this Tribunal, the Tribunal below made an error of law when it followed Neary and concluded that there is no discretion to grant access to exempt documents.

37 Mr McGuirk also claimed that the Tribunal failed to fully consider his legal arguments, however he did not say that the Tribunal’s reasons were inadequate or how the alleged failure constituted an error of law. We find no error on that ground.

Applying the law to the facts – grounds 2 and 5

38 While Mr McGuirk acknowledged that the Tribunal correctly stated the law in relation to legal professional privilege, he said that it failed to properly apply that test to the facts of this case. This ground of appeal relates to the third stage of the determinative process, namely applying the law to the facts as found.

39 The Tribunal agreed with Mr McGuirk that in order to attract legal professional privilege, the advice must be independent, notwithstanding the fact that the legal adviser is an employee of the client. Mr McGuirk pointed to the following passage in Waterford v Commonwealth (1987) 163 CLR 54 per Brennan J at p 70 as authority for this proposition:

If the purpose of the privilege is to be fulfilled, the legal adviser must be competent and independent. Competent, in order that the legal advice be sound and the conduct of litigation be efficient; independent, in order that the personal loyalties, duties or interests of the adviser should not influence the legal advice which he gives or the fairness of his conduct of litigation on behalf of his client.

40 Mr McGuirk submitted that the question the Tribunal had to ask itself was whether the conduct of the University in its response to his application for access to the Kirby Memorandum demonstrated “beyond reasonable doubt” that Ms Kirby was competent and had dealt with the matter in a professionally detached manner. With respect, the standard of proof is the civil standard (on the balance of probabilities), not the criminal standard (beyond reasonable doubt). If Mr McGuirk is referring to the University’s conduct when it responded to his first application for the Kirby memorandum, that evidence was not before the Tribunal. In relation to the University’s response to the current application, and the alleged breaches of Professional Conduct and Practice Rules, we are satisfied that in reaching the conclusion that Ms Kirby was competent and independent the Tribunal did not make a finding that was "not open as a matter of law": Attorney-General (NSW) v X (2000) 49 NSWLR 653 at 677. In those circumstances, no error of law is disclosed.

41 Wednesbury unreasonableness. Mr McGuirk’s fifth ground of appeal was that the Tribunal’s decision is so unreasonable that no reasonable Tribunal member could have reached it: Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223. In other words, in applying the law to the facts as found, the Tribunal’s decision was unreasonable in the Wednesbury sense. Mr Singleton correctly pointed out that Wednesbury unreasonableness is a ground of judicial review in relation to the original common law jurisdiction of superior courts to review administrative decisions. It relates to the exercise of a discretion by an administrator. Lord Greene MR said in Wednesbury at p 229 that “It is true that discretion must be exercised reasonably.” (Emphasis added.) In this case, the Tribunal was not exercising any discretionary power. It was merely determining as a matter of law, whether the Kirby memorandum came within the exemption relating to legal professional privilege. Had the Tribunal gone on to decide whether to exercise its discretion to release the document, Wednesbury unreasonableness may have been relevant. As it did not, there is no error of law on that ground.

Bias – ground 3

42 The final ground of appeal was that the Judicial Member demonstrated clear bias in favour of the University. There are two long established rules of procedural fairness, namely the hearing rule and the bias rule. The bias rule requires a decision maker to disqualify himself from hearing a matter if a fair-minded lay observer might reasonably apprehend that the decision maker might not bring an impartial mind to the resolution of the question to be decided: Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 75 ALJR 277 per Gleeson CJ, McHugh, Gummow and Hayne JJ at [6] and [8].

43 According to Mr McGuirk, The alleged bias related to:

(a) a comment the Judicial Member allegedly made in the hearing of another matter involving himself and the University;

(b) the fact that the Judicial Member did not respond to a letter he wrote to the Tribunal on 31 January 2006 in relation to another matter involving himself and the University in which he requested an urgent directions hearing; and

(c) the fact that the Judicial Member refused to disqualify himself in another matter involving Mr McGuirk and the University.

44 Comment by Judicial Member. In a Planning Meeting in relation to another matter conducted on 6 February 2006, Mr McGuirk says that the Judicial Member made the comment that his letter of 31 January 2006 was “bordering on contempt”. Mr McGuirk then said that he foreshadowed that he would make an application for the Judicial Member to disqualify himself for bias unless the Judicial Member voluntarily withdrew from all the matters in which he was a party. He says the Judicial Member declined to do so.

45 There is insufficient evidence for us to make findings about any comment the Judicial Member may have made during the course of another matter. However, assuming that the comment as alleged was made, we are not satisfied that a fair-minded lay observer might reasonably apprehend that he might not bring an impartial mind to the resolution of the question to be decided. The comment merely expressed a preliminary view on a matter relating to a party’s conduct.

46 Failure to respond to request for urgent directions hearing. In his letter to the Judicial Member dated 31 January 2006, Mr McGuirk alleged that:

(a) he had been denied procedural fairness in relation to the directions and compliance or non-compliance with those directions;

(b) the Tribunal had failed to allow him to summons witnesses; and

(c) that the Tribunal had allowed the University to transform what should have been a merits review proceeding into adversarial proceedings.

47 We agree with Mr Singleton’s submission that if the Judicial Member failed to answer an ex parte unsolicited letter, that is not evidence of bias. In the letter Mr McGuirk complains in broad terms that the Tribunal has made “serious errors of law” including failing to afford him procedural fairness, transforming the proceedings into an adversarial contest and failing to give effect to the letter and to the intent of the ADT Act. It is not clear from Mr McGuirk’s correspondence what application he intended to make at a Directions Hearing. In the absence of a specific application from Mr McGuirk requiring the matter to be re-listed, a fair-minded lay observer would not reasonably apprehend that the Judicial Member might not bring an impartial mind to the resolution of the ultimate issue to be decided.

48 Failure to disqualify. Mr McGuirk also said that at a hearing on or about 2 March 2006 the Judicial Member said that he “could see no reason why communications of an in house solicitor of the University would not be privileged.” According to Mr McGuirk that comment was made despite the overwhelming weight of evidence which had been placed before the Tribunal. He asked the Judicial Member to disqualify himself but he declined to do so. On 11 May 2006 Mr McGuirk says he lodged a formal objection to the Judicial Member’s participation in any proceedings in which he was a party.

49 It is commonplace for decision makers to express provisional views to parties in the context of litigation. Such expressions expose the Judicial Member’s thinking on an issue so that a party has an opportunity to dissuade the Member from that view. Exposure of preliminary views does not mean that the decision maker has closed his or her mind on the matter.

Conclusion

50 We have found that the Tribunal made an error of law, namely failing to interpret s 25(1)(a) of the FOI Act as giving the Tribunal a discretion to give access to exempt documents. In those circumstances, it is appropriate to grant leave to extend the appeal to the merits of the Tribunal’s decision and consider whether to exercise the discretion ourselves. Although it is often appropriate to remit matters to the Tribunal when an error of law is found, in this case there are good reasons for the Appeal Panel to hear and determine this question. It will be useful for the Appeal Panel to provide some early guidance on the kinds of factors that are relevant to the exercise of the discretion. Hearing the matter ourselves will also prevent unnecessary delay in the finalisation of Mr McGuirk’s application. Consequently, we extend the appeal to the merits of the Tribunal’s decision but only as to whether the Tribunal should exercise its discretion to give Mr McGuirk access to the Kirby memorandum.

51 Mr McGuirk also submitted that leave should be granted to extend the appeal to the merits of the Tribunal’s decision that the Kirby memorandum was subject to legal professional privilege. We have found no error of law in relation to the Tribunal’s decision on that matter. However, the absence of a legal error does not prevent the Appeal Panel from extending the appeal to the merits of the Tribunal’s decision: Lloyd v Veterinary Surgeons Investigating Committee [2005] NSWCA 456. The ADT Act does not contain any guidance on the relevant matters to be taken into account in determining whether leave should be granted. The Supreme Court has provided some guidance on this question when interpreting s 67 of Guardianship Act 1987. That provision requires a party to proceedings before the Guardianship Tribunal to obtain leave from the Supreme Court before appealing on a question, other than a question of law.

52 In K v K [2000] NSWSC 1052 Young J observed at [10] that "it has never been clearly decided what the circumstances are that should lead the Court to grant leave to appeal under s 67", but went on to make a number of observations on this point: see para [10]-[15]. After considering the relationship between the Court and the Tribunal, Young J observed at [15]:

It would seem to me that s 67 of the Guardianship Act operates so that broad questions of administration and policy and the applicability of policy to individual cases, even if they are not questions of law, may well be subjects on which the Court will grant leave to appeal. On the other hand, it is very unlikely that the Court will grant leave to appeal when there is a problem with a fact finding exercise unless there are clear indications that the Tribunal has gone about that fact finding process in such an unorthodox manner or in a way which is likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed."

53 Although Mr McGuirk has submitted that broad questions of administration and policy are relevant to these proceedings, we are not persuaded that that is the case. Mr McGuirk’s main reason for requesting leave to extend the appeal to the merits of the Tribunal’s decision appears to be that the Tribunal was biased. We have not upheld Mr McGuirk’s appeal on that ground nor do we consider that the Tribunal has gone about its fact finding process in an unorthodox manner or in a way that is likely to produce an unfair result. There was not other reason which justifies the appeal being extended to the merits of the Tribunal’s decision that the Kirby memorandum was an exempt document.

Directions

54 In view of these findings, we make the following directions:

1. Within 28 days of the date of this decision, Mr McGuirk is to file and serve any evidence and submissions on which he intends to rely in support of his submission that the University should have exercised its discretion to give access to the Kirby memorandum notwithstanding that it is an exempt document.

2. Within 28 days of receiving Mr McGuirk’s material, the University is to file and serve any evidence and submissions on which it intends to rely in response.

3. Registry to arrange a date for hearing that is suitable to the Appeal Panel and the parties.

Leave is granted for the appeal to be extended to the merits of the Tribunal’s decision but only as to whether the Tribunal should exercise its discretion to give Mr McGuirk access to the Kirby memorandum, notwithstanding that it is an exempt document.