McGuirk v University of New South Wales; University of New South Wales v McGuirk

[2009] NSWCA 321

Reported Decision: 75 NSWLR 224[2010] ALMD 6148[2010] ALMD 6150

New South Wales

Court of Appeal

CITATION:

McGUIRK v UNIVERSITY OF NEW SOUTH WALES; UNIVERSITY OF NEW SOUTH WALES v McGUIRK [2009] NSWCA 321
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S):

13 August 2009

 
JUDGMENT DATE: 

7 October 2009

JUDGMENT OF:

Ipp JA at 1; Basten JA at 2; Macfarlan JA at 93

DECISION:

(1) In the University’s appeal, being matter no 40127 of 2008:

(a) allow the appeal and set aside the orders of the Appeal Panel of the Administrative Decisions Tribunal in University of New South Wales v McGuirk (No 2) [2008] NSWADTAP 8;
(b) declare that the Administrative Decisions Tribunal has no power under s 63(2) of the Administrative Decisions Tribunal Act 1987 to grant access to a person to a document which is an exempt document of the University of New South Wales by virtue of Schedule 1, cl 10 of the Freedom of Information Act 1989 (NSW);
(c) no order as to the costs of the appeal.

(2) In relation to the appeal of Gerard Michael McGuirk (matter no 40652 of 2007):

(a) grant leave to appeal;
(b) deem the notice of appeal in the matter bearing the same number, filed on 21 December 2007, to have been properly filed pursuant to this grant of leave;
(c) otherwise waive the requirements of the rules with respect to the steps to be taken in relation to the appeal;
(d) allow the appeal and set aside orders 5 and 6 made by Harrison AsJ and entered on 4 September 2007;
(e) in lieu of the 2006 decision of the Appeal Panel, dismiss the University’s appeal from the decision of the Tribunal in McGuirk v University of New South Wales [2005] NSWADT 289;
(f) order the University to pay Mr McGuirk’s costs of the proceedings in this Court and in the Common Law Division, such costs to be limited to those payable to a litigant in person from the date on which Mr McGuirk ceased to have legal representation.

CATCHWORDS:	ADMINISTRATIVE LAW – freedom of information – exempt document – legal advice to University – subject to legal professional privilege – document provided to third party with approval of Chancellor – whether waiver of privilege - APPEAL – leave to appeal – considerations – primary judgment upheld appeal from Tribunal in part and remitted for determination according to law – whether appeal available from order on ground rejected by primary judge – whether appeal from reasons, not orders - JUDGMENT – order remitting matter for consideration according to law – remittal on one ground only – appeal against failure to remit on another ground – different order sought in substance though not in form - JURISDICTION – Administrative Decisions Tribunal – power to exercise functions of original decision-maker – limited to those conferred by an enactment – decision to withhold exempt document on basis of legal professional privilege – privilege arising under general law – whether Tribunal possessed power to grant access despite exempt status of document – Freedom of Information Act 1989 (NSW), s 63
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 (NSW), ss 5, 63, 113, 119, 120, 124 Administrative Decision (Judicial Review) Act 1977 (Cth) Constitution, s 73 Corporations Act 2001 (Cth), s 57A Freedom of Information Act 1989 (NSW), ss 6, 17, 24, 25, 34, 55, 63, Sch 1, cl 10 Interpretation Act 1987 (NSW), s 21A Supreme Court Act 1970 (NSW), ss 10, 101 University of New South Wales Act 1989 (NSW), ss 5, 8, 10, 11, 12, 15, 16 University of New South Wales By-law 2005, cll 4, 5
CATEGORY:	Principal judgment
CASES CITED:	Australian National University v Burns (1982) 64 FLR 166 Australian National University v Lewins (1996) 68 FCR 87 Australian Telecommunications Commission v Colpitts [1986] FCA 257; 12 FCR 395 Baxter Healthcare Pty Ltd v Comptroller-General of Customs [1997] FCA 131; 72 FCR 467 Carltona Ltd v Commissioner of Works [1943] 2 All ER 560 Driclad Pty Ltd v Federal Commissioner of Taxation [1968] HCA 91; 121 CLR 45 Griffith University v Tang [2005] HCA 7; 221 CLR 99 Ibrahim v Commissioner of Police [2004] NSWADTAP 8 Mann v Carnell [1999] HCA 66; 201 CLR 1 McGuirk v University of New South Wales [2005] NSWADT 289 Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24 North Sydney Council v Ligon 302 Pty Ltd [1996] HCA 20; 185 CLR 470 O’Reilly v State Bank of Victoria Commissioners [1983] HCA 47; 153 CLR 1 Prentice v Cummins (No 5) [2002] FCA 1503; 124 FCR 67 Re Patterson; Ex parte Taylor [2001] HCA 51; 207 CLR 391 Scharer v New South Wales [2001] NSWCA 360; 53 NSWLR 299 Tesco Supermarkets Ltd v Nattrass [1972] AC 153 University of New South Wales v McGuirk [2006] NSWADTAP 38 University of New South Wakes v McGuirk [2006] NSWSC 1362 University of New South Wales v McGuirk [2008] NSWSC 369
TEXTS CITED:	Professor Enid Campbell, “Ostensible Authority in Public Law” (1999) 27 FL Rev 1
PARTIES:	Gerard Michael McGuirk - Appellant/Respondent University of New South Wales - Respondent/Appellant
FILE NUMBER(S):	CA 40652/07; 40127/08
COUNSEL:	Self-represented (McGuirk) R McHugh SC/P Singleton (University of NSW)
SOLICITORS:	Self-represented (McGuirk) Sparke Helmore Lawyers (University of NSW)

LOWER COURT JURISDICTION:	Supreme Court; Administrative Decisions Tribunal - Appeal Panel
LOWER COURT FILE NUMBER(S):	SC 30132/06; ADT 079044
LOWER COURT JUDICIAL OFFICER:	Harrison AsJ; Hennessy N (Deputy President); Wilson R (Judicial Member); Blake C (Non-Judicial Member)
LOWER COURT DATE OF DECISION:	25 July 2007; 29 February 2008
LOWER COURT MEDIUM NEUTRAL CITATION:	McGuirk v University of New South Wales [2007] NSWSC 806; University of New South Wales v McGuirk (No 2) [2008] NSWADTAP 8

CA 40652/07
CA 40127/08

IPP JA
BASTEN JA
MACFARLAN JA

7 October 2009

McGUIRK v UNIVERSITY OF NEW SOUTH WALES

UNIVERSITY OF NEW SOUTH WALES v McGUIRK

Headnote

In 2004 Mr McGuirk applied for access, pursuant to s 17 of the Freedom of Information Act 1989 (NSW) ("the FOI Act"), to a legal advice provided to the University. Access was refused, and after an internal review of that decision, Mr McGuirk challenged it in the Administrative Decisions Tribunal, where it was held that legal professional privilege over the advice had been waived and it was therefore no longer an exempt document. The University appealed to the Appeal Panel which held that privilege had not been waived and that the advice need not be released.

In other proceedings between the University and Mr McGuirk, Nicholas J held in the Common Law Division that it was open to the Tribunal to exercise the powers of the administrator who made the original decision, and thus to permit the release of the document even if it was an exempt document.

Mr McGuirk sought to challenge the decision of the Appeal Panel in the Common Law Division, where Harrison AsJ upheld the appeal on the basis of Nicholas J's finding as to the Tribunal's jurisdiction, but rejected the argument concerning waiver of privilege. Upon the matter being remitted to the Appeal Panel to consider whether Mr McGuirk was entitled to access, even if the advice retained status as an exempt document, it was held that he was so entitled.

The University appealed from that decision to the Common Law Division, where Hislop J ordered that the appeal be removed into this Court for determination. Mr McGuirk filed a summons seeking leave to appeal from the decision of Harrison AsJ. Both matters were heard concurrently before this Court.

The issues for determination on appeal were:

(i) whether Mr McGuirk should have leave to appeal from the decision of Harrison AsJ with respect to waiver of privilege;

(ii) the scope of the Tribunal's power to grant access to an exempt document, and

(iii) whether the Appeal Panel had erred on a question of law in holding that the University had not waived its privilege in the advice.

The Court held, allowing both appeals:

In relation to (i)

(per Basten JA, Ipp and Macfarlan JJA agreeing):

1. Where on appeal, relief is granted on one ground, but refused on another, the matter that is remitted to be determined "according to law", is only the issue upon which the appeal was upheld. Although an appeal lies only against an order and not against reasons, an appeal will lies (subject to any question of leave) against the remittal of part only of the matter the subject of the appeal. No substantial prejudice being caused to the University by delay in seeking leave, leave to appeal should be granted: [18] – [24].

Driclad Pty Ltd v Federal Commissioner of Taxation [1968] HCA 91; 121 CLR 45; North Sydney Council v Ligon 302 Pty Ltd [1996] HCA 20; 185 CLR 470; Australian Telecommunications Commission v Colpitts [1986] FCA 257; 12 FCR 395; Baxter Healthcare Pty Ltd v Comptroller-General of Customs [1997] FCA 131; 72 FCR 467, referred to.

In relation to (ii)

(per Basten JA, Ipp and Macfarlan JJA agreeing):

2. The power of the Tribunal to exercise the functions of the original decision-maker being limited to those functions conferred or imposed by any relevant enactment, and the authority of the original decision-maker to grant access to the advice arising from the general law, the Tribunal was not empowered to order the release of this particular exempt document: [33].

Australian National University v Burns (1982) 64 FLR 166; Australian National University v Lewins (1996) 68 FCR 87; Griffith University v Tang [2005] HCA 7; 221 CLR 99; Scharer v New South Wales [2001] NSWCA 360; 53 NSWLR 299, applied.

In relation to (iii)

(per Basten JA, Ipp and Macfarlan JJA agreeing):

3. Where a statute creates an institution which must operate within the milieu of the general law, the statute is not the sole source of relevant legal principle. It was open to the first Tribunal to find that the University, in light of evidence of the advice having been provided to third parties with the approval of the Chancellor, had failed to establish that privilege had not been waived. Where the decisions of both the Appeal Panel and the primary judge are shown to be erroneous, and no cause exists for the reopening of factual issues addressed by the first Tribunal, its decision should stand: [70], [85] – [87].

Mann v Carnell [1999] HCA 66; 201 CLR 1, applied.

CA 40652/07
CA 40127/08

IPP JA
BASTEN JA
MACFARLAN JA

7 October 2009

McGUIRK v UNIVERSITY OF NEW SOUTH WALES

UNIVERSITY OF NEW SOUTH WALES v McGUIRK

Judgment

1 IPP JA: Save for [36] and [39] which discusses issues in regard to which I express no opinion, I agree with the reasons of Basten JA and the orders that his Honour proposes.

2 BASTEN JA: Underlying this litigation is a long running dispute between Mr McGuirk and the University of New South Wales. The scope of that dispute is of no present relevance. The subject matter of the present proceedings (of which there are two before the Court) is an attempt by Mr McGuirk to obtain access to a legal advice prepared by Messrs Bret Walker SC and Andrew Bell (now SC) and provided, through solicitors, to the University. It is not in dispute that the advice, when obtained, was subject to legal professional privilege and was exempt from disclosure under the Freedom of Information Act 1989 (NSW) (“the FOI Act”). Mr McGuirk nevertheless maintained that privilege had been waived in particular circumstances and that, even if it had not been waived, the Administrative Decisions Tribunal had power to direct that the document be disclosed to him.

3 Before addressing the substantive issues, it is necessary to identify the procedural steps through which the jurisdiction of this Court has been invoked.

Procedural history

4 Mr McGuirk applied for access to the advice, pursuant to s 17 of the FOI Act, on 10 December 2004. The University having failed to determine the application within 21 days was deemed to have refused access: s 24(2). The applicant exercised his right to an internal review of that decision, pursuant to s 34 of the FOI Act. A review is required to be dealt with as if it were an original application under s 17: s 34(4). A review was conducted and, on 21 January 2005, the University refused access to the advice on the basis of legal professional privilege.

5 It was not in dispute that the University was entitled to refuse access to the advice if it were “an exempt document”: s 25(1)(a). An exempt document is defined as a document referred to in Schedule 1: s 6(1), exempt document. Schedule 1, cl 10 identifies as an exempt document one that would be “privileged from production in legal proceedings on the ground of legal professional privilege”.

6 Mr McGuirk challenged that decision in the Administrative Decisions Tribunal. On 8 December 2005 the Tribunal held that privilege over the advice had been waived and the advice was therefore not (or no longer) an exempt document. The Tribunal, constituted by Judicial Member Montgomery, ordered that it be released: see McGuirk v University of New South Wales [2005] NSWADT 289 (“the first Tribunal decision”).

7 From that decision, the University took an appeal to an Appeal Panel which held that privilege had not been waived and that the advice need not be released: University of New South Wales v McGuirk [2006] NSWADTAP 38 (“the 2006 Appeal Panel decision”).

8 There were other proceedings in the Administrative Decisions Tribunal between the same parties. These have not given rise to any matter in this Court, but it is necessary, in the present chronology, to note a judgment of Nicholas J in the Common Law Division in University of New South Wales v McGuirk [2006] NSWSC 1362. That judgment, delivered on 8 December 2006, held that the powers of the Tribunal to make the “correct and preferable decision” included exercising all of the functions of the administrator who made the decision under review and thus permitted the Tribunal to decide that the document should be released, even though it was an exempt document: Administrative Decisions Tribunal Act 1997 (NSW) (“the ADT Act”), s 63.

9 By summons dated 4 October 2006 Mr McGuirk sought to challenge in the Common Law Division the 2006 Appeal Panel decision. That appeal involved a challenge to the conclusion of the Appeal Panel that privilege had not been waived by the University, but also raised a question as to whether the Appeal Panel should have exercised its power to order access to the document in any event. The appeal in the Common Law Division was heard by Harrison AsJ. In a judgment delivered on 25 July 2007 her Honour rejected the challenge to the finding with respect to waiver of privilege and declined to overturn the decision of the Appeal Panel on that ground. However, her Honour accepted the construction of s 63 adopted by Nicholas J and set aside the decision of the Appeal Panel on the ground that even if the document were exempt, the Tribunal had nevertheless failed to consider whether Mr McGuirk should be given access to it in any event: McGuirk v University of New South Wales [2007] NSWSC 806.

10 The University did not appeal from that decision, nor did it appeal from the judgment of Nicholas J. Accordingly, the issue with respect to the advice was remitted to the Appeal Panel to determine whether Mr McGuirk should be granted access to the document even though it was an exempt document. On 29 February 2008 the Appeal Panel, chaired by Deputy President Hennessy, upheld Mr McGuirk’s claim and directed that he have access to the document: University of New South Wales v McGuirk (No 2) [2008] NSWADTAP 8 (“the 2008 Appeal Panel decision”).

11 On 27 March 2008 the University filed an appeal in the Common Law Division (Administrative Law List) challenging the 2008 Appeal Panel decision. On 14 April 2008 the University sought a stay of the determination of the Appeal Panel and asked that its appeal be removed into this Court. That motion came before Hislop J who made both orders: University of New South Wales v McGuirk [2008] NSWSC 369.

12 On 22 October 2008 Mr McGuirk filed a summons seeking leave to appeal from the judgment of Harrison AsJ. The application was, in effect, a challenge to her Honour’s decision that the 2006 Appeal Panel decision was not in error in concluding that privilege had not been waived.

13 It is convenient to address the question of leave to appeal first.

14 A right of appeal lies to the Supreme Court from a decision of an Appeal Panel of the Tribunal, pursuant to s 119 of the ADT Act. That provision is, relevantly, in the following terms:

“ 119 Right of appeal to Supreme Court
(1) A party to proceedings before an Appeal Panel of the Tribunal may appeal to the Supreme Court, on a question of law, against any decision of the Appeal Panel in those proceedings.
(1A) Despite subsection (1), an appeal does not lie to the Supreme Court against any of the following decisions of the Appeal Panel except by leave of the Supreme Court:
(a) an interlocutory decision,
….”

15 The ADT Act also provides for the orders to be made by the Supreme Court in disposing of such an appeal, in the following terms:

“ 120 Orders on appeal to the Supreme Court
(1) The Supreme Court is to hear and determine the appeal and may make such orders as it thinks appropriate in light of its decision.
(2) The orders that may be made by the Supreme Court on appeal include (but are not limited to):
(a) an order affirming or setting aside the decision of the Appeal Panel, and
(b) an order remitting the case to be heard and decided again by the Appeal Panel (either with or without the hearing of further evidence) in accordance with the directions of the Supreme Court.”

16 An appeal to this Court may be brought from “any judgment or order of the Court in a Division”: Supreme Court Act 1970 (NSW), s 101(1)(a). As explained by Barwick CJ and Kitto J in Driclad Pty Ltd v Federal Commissioner of Taxation [1968] HCA 91; 121 CLR 45 at 64, addressing the phrase “judgments, decrees, orders and sentences” in s 73 of the Constitution:

“The word ‘judgments’ in this connexion refers only to operative judicial acts, and is not used, as it often is in other contexts, as a convenient abbreviation for reasons for judgment.”

17 The orders made by Harrison AsJ were as follows:

1 The appeal is upheld.
2 The decision of the Appeal Panel dated 22 August 2006 is set aside.
3 The matter is remitted to the NSW Administrative Decisions Tribunal Appeal Panel for determination according to law.
4 The Plaintiff’s Notice to Admit Facts and Authenticity of Documents, dated 8 August 2007, is set aside.
5 The Defendant to pay the Plaintiff’s costs of the proceedings up to 25 October 2006.
6 The Plaintiff to pay the Defendant’s costs of the proceedings on an indemnity basis from 25 October 2006.

18 Mr McGuirk could not have appealed against orders (1), (2) or (5), which were favourable to him. Of the substantive orders, that left order (3). Order (3) is in a common form, but is to substantially the same effect as an order remitting a matter for determination in accordance with the decision or the reasons of the appeal court. It would be assumed by the Appeal Panel that “determination according to law” would at least include determination in accordance with the law as identified by the appeal court. Because Harrison AsJ had determined that the 2006 Appeal Panel decision with respect to waiver of privilege was not affected by legal error, the Appeal Panel hearing the remitted matter was bound to take the same view. Accordingly, it was limited to considering the power to permit access to an exempt document, pursuant to s 63 of the FOI Act.

19 These circumstances are not dissimilar to that which arose in North Sydney Council v Ligon 302 Pty Ltd [1996] HCA 20; 185 CLR 470. In that case, this Court set aside a decision of the Land and Environment Court on a ground requiring remittal. A separate question arose as to whether a development required the consent of an adjoining landowner. This Court had divided on that issue, but held that the consent was not necessary. The appeal sought to challenge that decision on a point of statutory construction. The order made in this Court was one remitting the matter to the Land and Environment Court “for determination in accordance with the decision of [this Court]”: at 474. The judgment of the High Court stated at 474-475:

“In this Court the Council seeks to have that order set aside. The Council does so on the footing that whilst it was successful on one ground of appeal, the order of the Court of Appeal would require redetermination of the proceedings upon what it contends is an erroneous construction of [a provision of the Environmental Planning and Assessment Act 1979 (NSW)]. That is, it asserts that the order of the Court of Appeal operates adversely to its interests. Quite properly, no point was taken as to the competency of an appeal to this Court framed in this way."

20 One way of considering Mr McGuirk’s entitlement to appeal is to consider more precisely the “matter” remitted pursuant to order (3). Because her Honour did not uphold the challenge to the advice being an exempt document, consideration of that question was not part of the matter remitted. Alternatively, it would have been open to her Honour, if sought by a party, to formulate more precise orders by way of declarations indicating the findings made. As explained by Jackson J in Australian Telecommunications Commission v Colpitts [1986] FCA 257; 12 FCR 395 at 411:

“I see no reason why, as in Driclad …, an appeal which seeks to limit the effect of the order of the primary judge in a distinct and separate respect is not competent, particularly where the method of limitation sought is by the making of declarations which it is contended are more appropriate.”

21 A similar approach was adopted by the Full Court (Burchett J, Moore and Merkel JJ agreeing) in Baxter Healthcare Pty Ltd v Comptroller-General of Customs [1997] FCA 131; 72 FCR 467.

22 There remains a question as to whether Mr McGuirk should have an extension of time within which to allow him to file a notice of appeal. Mr McGuirk filed a summons seeking leave to appeal, leave being required because the amount in issue was below the statutory floor. The order made by Harrison AsJ finally disposed of the proceedings heard by her Honour.

23 It appears that, on 25 September 2007, solicitors then acting for the applicant filed a notice of appeal without appointment, a copy of which was served on the University “a short time after”: affidavit of Gerard Michael McGuirk, filed 22 October 2008, par 2. That notice would have been approximately one month late. On 21 December 2007, his lawyers purported to file a notice of appeal: affidavit, par 3. That notice would also have been out of time. Before the notice of appeal was considered by the Registrar, the 2008 Appeal Panel decision was handed down. As noted above, on 27 March 2008, the University commenced an appeal in the Common Law Division against the 2008 Appeal Panel decision.

24 On 14 July 2008 Mr McGuirk filed a notice of motion in this Court (in the University’s appeal) seeking to treat the proceedings commenced by the University in respect of the 2008 Appeal Panel decision as being in substance a combined appeal against the decisions of Harrison AsJ and Nicholas J. However, as appeared from his written submissions in support of the notice of motion (par 9) the purpose of seeking orders to the effect just noted was that they allowed Mr McGuirk an opportunity to appeal against, or file notices of contention in respect of, those decisions in the Common Law Division. There is substance in Mr McGuirk’s concern that he should be able to challenge the adverse finding in the judgment of Harrison AsJ, a matter which, on its face, might have been lost to him, if it could only have been achieved by filing a notice of contention in an appeal brought by the University. However, for the reasons set out above, that assessment is not correct. Rather, Mr McGuirk was entitled, as he sought to do, to bring his own appeal (with leave) from the judgment of Harrison AsJ. In the circumstances, no prejudice has been caused to the University by the short delay in filing the appeal and accordingly time should be extended to allow the notice of appeal to proceed. For reasons indicated below, the issue sought to be raised was a significant point of law and there should be a grant of leave to appeal. The costs of that application, and the notice of motion filed by Mr McGuirk on 14 July 2008, should form part of the costs of his appeal with respect to the judgment of Harrison AsJ.

Issues

25 The first issue concerns the principle identified by Nicholas J and applied by Harrison AsJ in remitting the matter to the Appeal Panel, namely the construction of s 63 of the FOI Act. The University asserted that the construction applied in the 2008 Appeal Panel decision was erroneous. If successful in that respect, that aspect of the decision of Harrison AsJ, resulting in a remittal to the Appeal Panel, must also have been erroneous.

26 The University’s grounds of appeal, in descending order of generality were as follows, namely that the Appeal Panel erred:

(a) in proceeding on the basis that it had power to grant access to an exempt document;

(b) in proceeding on the basis that it had power to grant access to a document exempt by operation of legal professional privilege, and

(c) in applying a test that “if, in the particular circumstances of the case, it is not reasonably necessary for the proper administration of government for the exemption to be relied upon, the preferable decision is that the document be released”.

27 As will be seen below, the University’s argument as to (b) is correct. It is not necessary to consider (a) or (c).

28 Mr McGuirk’s appeal concerned the decision with respect to waiver of legal professional privilege. The 2006 Appeal Panel decision was based on the premise that the University could only waive privilege by a resolution of its Council waiving privilege or authorising an officer to waive privilege. Mr McGuirk sought to appeal from her Honour’s decision upholding that approach as correct in law.

29 The power of the Tribunal to grant access to an exempt document was said to flow from the express terms of s 63 of the ADT Act which, so far as presently relevant provides:

“ 63 Determination of review by Tribunal
(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.
(2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant enactment on the administrator who made the decision.”

30 The source of the construction of this section relied upon by Mr McGuirk and upheld by Harrison AsJ derived from the judgment of Nicholas J in other proceedings between the same parties. His Honour was concerned with documents which were exempt because they included matter relating to a “protected disclosure” within the meaning of the Protected Disclosures Act 1994 (NSW). Further, as counsel for the University noted, the operation of s 63 was conceded in that case, absent two countervailing provisions which were said to lead to a contrary construction. The countervailing provisions relied upon were s 55 of the FOI Act and s 124 of the ADT Act. Nicholas J held that neither of these provisions operated so as to confine the otherwise accepted scope of s 63(2).

31 When the matter came before Harrison AsJ, the primary argument of the University identified in the judgment was that Mr McGuirk should have raised the operation of s 63 before the Appeal Panel and did not do so: [2007] NSWSC 806 at [31]. The argument in this Court (which may well provide a point of distinction from the circumstances which arose before Nicholas J, although it is not necessary to decide that issue) was that any power a relevant officer of the University may have had to grant access to a document subject to legal professional privilege arose under the general law and not under any enactment.

32 Because s 63(2) is limited to the exercise of functions conferred or imposed “by any relevant enactment” the power to waive legal professional privilege is not a power enjoyed by the Tribunal. A relevant enactment must be an Act, regulation, by-law, rule or ordinance: ADT Act, s 5 and Interpretation Act 1987 (NSW), s 21A, statutory rule. The University is a body corporate constituted under the University of New South Wales Act 1989 (NSW) (“the UNSW Act”), s 5. Where the University obtains advice from lawyers, its rights with respect to that advice will depend upon the general law, even if it is obtained for the exercise of its statutory functions: see Australian National University v Lewins (1996) 68 FCR 87 at 96-97 (Kiefel J), 101 (Lehane J); Australian National University v Burns (1982) 64 FLR 166 at 174 (Bowen CJ and Lockhart J); Griffith University v Tang [2005] HCA 7; 221 CLR 99 at [22] (Gleeson CJ), [79]-[81] (Gummow, Callinan and Heydon JJ), each case dealing with the phrase a “decision of an administrative character made … under an enactment” in the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the ADJR Act”) or the Judicial Review Act 1991 (Qld). As explained by Davies AJA in this Court, in a matter arising under the ADJR Act, namely Scharer v New South Wales [2001] NSWCA 360; 53 NSWLR 299 (in dissent) but in a passage quoted with apparent approval by Gleeson CJ in Tang at [18]):

“The crux of the issue in each case is whether the enactment has played a relevant part in affecting or effecting rights or obligations. A grant of authority to do that which under the general law a person has authority to do is not regarded as sufficient.”

33 In the present case, there was no relevant grant of statutory authority. The power to waive privilege did not arise under any enactment. Accordingly, at least in respect of the exempt document in question, no power was conferred on the Tribunal by s 63(2) to waive any legal professional privilege as might remain extant.

34 For present purposes it is not necessary to address each of the further arguments relied on by the University in any detail. However, it is appropriate to refer briefly to the two points of statutory construction relied upon by the University in support of its case in respect of s 63(2). First, and significantly, it relied upon the terms of s 124 of the ADT Act which provides:

“ Application of Act to exempt documents under Freedom of Information Act 1989
(1) General rule
Except as provided by this section, nothing in this Act requires or authorises any person or body to disclose any exempt document to another person or body.
(2) Disclosure to person or body other than Tribunal
The provisions of the Freedom of Information Act 1989 continue to apply to the disclosure of exempt documents to any person or body other than to the Tribunal as if this Act had not been enacted.
(3) Disclosure to Tribunal
If a provision of this Act requires or authorises any person or body to disclose any document to the Tribunal in relation to any proceedings before it and that document is an exempt document:
(a) the Freedom of Information Act 1989 does not prevent the disclosure of the document to the Tribunal, and
(b) the Tribunal is to do all things necessary to ensure that the document is not disclosed to any person other than a member of the Tribunal … unless the person or body disclosing the document to the Tribunal consents to the further disclosure.”

35 Nicholas J treated s 124 as having a limited effect at [99]:

“In my opinion, s 124 is a procedural provision the purpose of which, consistent with the Minister’s statement, is to meet the need of the Tribunal for access to relevant documentation in order to reach the correct or preferable decision about the matter as well as to secure the protection of the confidentiality of Cabinet documents and other exempt documents under the FOI Act.”

36 It is true that s 124 has the procedural effect identified by his Honour. It allows the Tribunal to consider documents claimed to be exempt, without permitting further disclosure of the document without the consent of the person providing the document to the Tribunal. Nevertheless, that procedural liberty is expressed in terms which affirm the underlying principle to which it is stated to be an exception. Section 124 provides support for the continued operation of the general rule and is protective of the exclusion of any right of access to exempt documents. Indeed, s 63(2), properly understood, may itself be a procedural provision limited to the powers necessary to make the relevant determination.

37 Finally, it is convenient to refer to the terms of s 55 of the FOI Act:

“ 55 Procedure for dealing with exempt matter
In determining a review application, the Tribunal:
(a) is to ensure that it does not, in the reasons for its decision or otherwise, disclose any exempt matter, and
(b) is to, where in the opinion of the Tribunal it is necessary to do so in order to prevent the disclosure of any exempt matter, receive evidence and hear argument in the absence of the public, the review applicant and the applicant’s representative.”

38 The University submitted that this provision has a similar effect to s 124 of the ADT Act. It rejected the view expressed by Nicholas J, adopting the reasons of the Appeal Panel in Ibrahim v Commissioner of Police NSW [2004] NSWADTAP 8, that the provision is limited to procedural steps, including the giving of reasons for a decision. His Honour held that “s 55 says nothing about, and has no effect upon, the Tribunal’s powers and functions under s 63 ADT Act”: at [92].

39 To the extent that his Honour construed s 55 of the FOI Act as procedural, providing exceptions to the Tribunal’s obligations to give reasons for its decision and to conduct hearings in public, his Honour was correct. However, it might also be seen as consistent with s 63(2), if that provision were seen as procedural. Thus, the administrator responsible for the original decision as to whether to grant access to a document could do so without showing the document to the applicant. A combination of s 63(2) and s 55 of the FOI Act would allow the Tribunal to adopt a similar process.

40 The appeal of the University with respect to the power of the Tribunal under s 63(2) should be upheld. The decision of the Appeal Panel should be set aside and a declaration made in respect to the operation of s 63(2). The effect of the declaration will be to reverse the conclusion reached by Harrison AsJ in respect of this document, but leave open other decisions involving documents where the power to grant access may have arisen under a relevant enactment.

41 In the first Tribunal decision, the appeal from which was determined by the 2006 Appeal Panel decision, Judicial Member Montgomery carefully set out the relevant issues, including an extract from the judgment of the High Court in Mann v Carnell [1999] HCA 66; 201 CLR 1, to which it will be necessary to refer below. The Tribunal then dealt with the question of onus, holding that there was a preliminary onus on Mr McGuirk to establish that privilege may have been waived. The Tribunal held that he had satisfied that onus. He had relied upon three pieces of material, summarised by the Appeal Panel at [9] in the following terms:

“(a) evidence from Professor Dutton, a member of the Council of the University of Newcastle, recorded in a transcript of proceedings before the [Independent Commission Against Corruption (“ICAC”)] that a member of the University [of NSW] Council had provided him with a copy of the advice ‘in confidence’ and that he sent a copy of that advice to Professor English, of the University of Newcastle; …
(b) an email purporting to be from Professor Dutton to Mr McGuirk dated 22 June 2005 saying that the advice was given to him in confidence with the approval of the Chancellor of the University [of NSW];
(c) an incomplete copy of the advice which Mr McGuirk says he has obtained from an undisclosed source; and
(d) evidence in other transcripts of the ICAC Operation Orion public hearings that a full copy of the advice was provided to ICAC.”

42 That material was set out more fully in the first Tribunal decision at [22]-[24]. The first Tribunal made findings in the following terms:

“27 It is apparent from reference to the copy of the Walker-Bell advice that has been provided to the Tribunal that Mr McGuirk has indeed accurately cited from parts of that document. The University has conceded as much.
28 On the evidence available I am satisfied that a member of the Council of the University probably provided a copy of the Walker-Bell advice to Professor Dutton. It is also probable that Professor Dutton passed a copy of the document on to Professor English. It is also probable that the document that Mr McGuirk has obtained is a copy of that document.
29 This does not necessarily mean that the University has waived its legal professional privilege. However, I am satisfied that Mr McGuirk has presented enough evidence to shift the burden of proving that legal professional privilege has not been waived onto the University.”

43 The first Tribunal then noted the limited effect of the evidence provided by the University. The University did not seek to obtain evidence from Professor Dutton. With respect to the role of the Chancellor, it provided a statement of an executive officer working with the Vice Chancellor who stated that she had been advised by the Vice Chancellor that he in turn had queried the previous Chancellor who had advised him that he could not recall having authorised or purported to authorise release of the advice: at [31]. The University did, however, provide solid evidence that the Council had not passed a relevant resolution in the appropriate period. The first Tribunal concluded:

39 … There is no basis on which I could conclude who provided the copy of the Walker-Bell advice to Professor Dutton or on what terms it was provided. There is no basis on which I could conclude whether or not it was provided with the approval of the Chancellor of the University.
40 I accept the evidence that the University Council has not passed any resolution to waive legal professional privilege over the Walker-Bell advice or authorised any other person to do so. However, I do not accept the argument that the only mechanism by which such waiver could be effected is by a resolution of the Council. In my view, if in fact the Walker-Bell advice given to Professor Dutton was given with the approval of the Chancellor of the University, that could in some circumstances be sufficient to waive the legal professional privilege that attaches to the document. I am unable to finally determine this issue. In the circumstances, I am not satisfied that the University has discharged the onus placed on it.
41 It follows, in my view, that the University has not proved that the determination to refuse access to the Walker-Bell advice is justified. Accordingly, it is my view that the document should be released.”

44 The Appeal Panel noted that the University’s first ground of appeal took issue with the conclusion that a resolution of Council was “not the only mechanism” by which waiver could be effected: at [14]-[15]. The summary of the submission continued:

“According to the University, the only way in which the Chancellor could waive privilege, other than through a resolution of Council, would be if a statute has conferred authority on the Chancellor to do so. The University says that there is no such enactment.”

45 The Appeal Panel also noted two alternative arguments. One was based on the proposition that the first Tribunal had erred “by failing to give adequate reasons for its finding that disclosure with the approval of the Chancellor could in some circumstances be sufficient to waive privilege”: at [27]. Although the Appeal Panel upheld that ground, it would appear that the real complaint was that the first Tribunal was required to make further findings of fact, namely as to the circumstances in which privilege could be so waived.

46 Thirdly, the University challenged before the Appeal Panel what it described as the imposition on it of a burden “of proving what the law is”. That ground was also accepted by the Appeal Panel.

47 It was not denied that the FOI Act, s 61, imposed on the University the burden of justifying its determination. However, the finding that the Tribunal was unable to determine the circumstances in which the approval of the Chancellor would be sufficient to waive privilege was said not to be a matter to which any onus applied, being a question of law. Reference was made at [31] in the Appeal Panel reasons to the decision of Sackville J in Prentice v Cummins (No 5) [2002] FCA 1503; 124 FCR 67 at [77].

48 This last conclusion appears to have been based upon the further proposition accepted by the Appeal Panel, that, as a matter of law, the only way in which the University could waive privilege was pursuant to an appropriate resolution of Council, in this case being one authorising the Chancellor to waive the privilege. If that approach were erroneous, it would seem that the findings of the first Tribunal were that –

(a) the document was provided to third parties by persons who may have had ostensible authority to waive privilege, and

(b) it had not been shown either that they did not possess such authority or that the circumstances were such as not to involve a waiver of privilege.

For reasons indicated below, such an approach would not have been erroneous in law.

49 The appeal to the Appeal Panel pursuant to s 113 of the ADT Act, although to be made on a question of law, could, with the leave of the Appeal Panel, extend to a review of the merits of the appealable decision: s 113(2). The Appeal Panel granted such leave: reasons at [33]. Any findings of fact which had not been made by the first Tribunal, and which should have been made, were therefore capable of being remedied by the Appeal Panel. Similarly, any inadequacy of the reasons of the Appeal Panel became of limited significance, the Appeal Panel undertaking a merit review of the decision. The findings of the Appeal Panel were encapsulated in two paragraphs which read as follows:

34 The [first] Tribunal accepted the evidence put forward by the University that it has not passed a resolution waiving privilege or authorising another person to do so (at [40]). The Tribunal did not specifically consider whether or not the Council had used its power under s 16 [of the UNSW Act] to delegate its function of waiving legal professional privilege or whether it had passed a resolution giving the Chancellor ostensible authority to waive the privilege. Section 16 gives the University power to delegate that function 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. However, no function can be delegated without a resolution of Council. Similarly ostensible authority cannot be given to an agent without a resolution of Council. The evidence of Mr Encel was that from July 2002 to June 2005 (inclusive) Council had not passed any resolution with respect to the waiver of privilege over the advice. We accept that that evidence which is broad enough to include any resolution delegating to the Chancellor the capacity to waive privilege over the advice or authorising him to do so directly.
35 We find that if the advice was given to Professor Dutton with the approval of the Chancellor, that did not waive privilege over the advice because there had been no resolution of Council authorising a waiver. Consequently, the University has discharged its burden of establishing that the advice is exempt.”

50 It is clear from these reasons that the Appeal Panel’s decision turned expressly on one principle of law and one finding of fact. The finding of fact, which was not in dispute and had been accepted by the first Tribunal, was that there was no resolution of Council which either waived privilege or authorised the Chancellor to waive privilege. The principle of law was that only by such a resolution could waiver be effected by the University.

51 The terms of s 16 of the UNSW Act may be set out, but the complaint that the first Tribunal did not in terms refer to the provision seems to have had no bearing on the outcome and would not have affected the conclusion reached by the first Tribunal in any event. The provision reads:

“ 16 Delegation by Council
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.”

52 The question of law challenged in the Court below by Mr McGuirk was that identified at [50] above. Her Honour identified the relevant ground of appeal as being that “the Appeal Panel erred in failing to find that the Chancellor of the University had the capacity to waive the legal professional privilege of the University Council over the document the subject of the plaintiff’s Freedom of Information application”: at [2]. It is her Honour’s finding in respect of that issue which is the subject of the present appeal by Mr McGuirk.

53 There is a secondary challenge in respect of the manner in which the Tribunal dealt with a view expressed by “an expert member”, within the area of his expertise.

54 Further, there is a challenge in respect of the costs orders made by her Honour. If Mr McGuirk is successful in his primary challenge, the costs order will in any event need to be revisited. Further, the second ground will not require consideration.

55 The key findings made by the primary judge were set out at [27]:

“The Chancellor’s powers are limited to those defined in the University of New South Wales Act and University of New South Wales By-law. The Council did not waive legal professional privilege on the Walker/Bell advice. The Chancellor did not have the statutory powers nor did he have Council authority to waive legal professional privilege. There was no inconsistency between the conduct of the Council and the maintenance of confidentiality of the Walker/Bell advice. There was no express or implied waiver of legal professional privilege over the Walker/Bell advice. It is my view that the Appeal Panel decision is correct. There is no error of law.”

56 There are elements of this conclusion which appear to go beyond determining the question of law which her Honour had identified as the relevant issue. In the circumstances, the comment about “inconsistency between the conduct of the Council and the maintenance of confidentiality” should not be understood as going further than a reference to the absence of any resolution of Council relating to the advice. Similarly, the remark with respect to “express or implied waiver” should, in its context, also be treated as a reference to the absence of a resolution of Council with respect to the advice. Finally, the view that the Appeal Panel decision was “correct” should be understood as meaning that it was not attended by relevant legal error. The primary conclusion, consistently with the University’s argument in this Court, identified the source of power to waive privilege solely by reference to the UNSW Act and (if relevant) the By-law.

57 Her Honour correctly noted that the University was established as a body corporate (s 5) and had a Council, identified as “the governing authority of the University” and having the functions conferred or imposed on it by or under the UNSW Act: s 8. Her Honour set out, at [18], the primary functions of the Council, in the following terms:

“ 15 Functions of Council
(1A) The Council:
(a) acts for and on behalf of the University in the exercise of the University’s functions, and
(b) has the control and management of the affairs and concerns of the University, and
(c) may act in all matters concerning the University in such manner as appears to the Council to be best calculated to promote the object and interests of the University.”

58 The primary judge further noted the power of delegation conferred on the Council by s 16 and referred to two clauses in the University of New South Wales By-law 2005, namely cll 4 and 5, dealing with the offices of Chancellor, Deputy Chancellor and Vice-Chancellor. These offices were (at least impliedly) created by ss 10, 11 and 12 of the UNSW Act. Section 10 of the Act stated that the Chancellor “has the functions conferred or imposed on the Chancellor by or under this or any other Act”: s 10(3). With respect to the Vice Chancellor, s 12 stated that he or she “is the principal executive officer of the University and has the functions conferred or imposed on the Vice-Chancellor by or under this or any other Act”: s 12(3).

59 Clause 4 of the By-law appointed the Chancellor as a member of every committee constituted by the By-law or Council, and a member of every board and faculty in the University. It empowered the Chancellor to preside at the meetings of any such bodies.

60 Clause 5 made similar provision with respect to the Vice-Chancellor but also provided:

“ 5 Vice-Chancellor
(1) The Vice-Chancellor has the duty of promoting the interests and furthering the development of the University.
…
(6) The Vice-Chancellor is, under the Council and subject to this By-law and the rules and any resolution of the Council:
(a) to manage and supervise the administrative, financial and other activities of the University ….”

61 In addition to the conclusions reached at [27] and set out above, the primary judge also stated at [26]:

“The Council would have power to waive the University’s privilege over the Walker/Bell advice. The Vice Chancellor also has power (subject to decisions of the Council) to make decisions for the University. He would have power to waive privilege over legal advice received by the University unless to do so would be contrary to a decision of the Council. To waive privilege would have been contrary to a decision of the Council. The Chancellor is not given any statutory power to act for the University or, [in] particular, to waive the University’s privilege.”

Power to waive privilege

62 As noted above, the University’s argument that privilege had not been waived in relation to the advice depended upon the legal proposition that under the UNSW Act only the Council of the University, or an officer properly authorised by resolution of the Council, could waive privilege. However, there is a tension between the proposition that, pursuant to its statute, the University could only waive privilege in the limited way identified, and its argument in relation to the proper construction of s 63(2), namely that waiver of privilege was a general law power and not one conferred by an enactment.

63 No doubt it is true that the breadth of the Council’s functions are to be gleaned in part from such provisions as s 15(1), which states that the functions include:

“(a) provide such courses, and confer such degrees and award such diplomas and other certificates, as it thinks fit,
(b) appoint and terminate the appointment of academic and other staff of the University,
…
(d) borrow money …,
(e) invest any funds belonging to or vested in the University,
….”

64 However, the manner in which the Council is expected to exercise such functions is better revealed by s 15(1B), which reads in part:

“(1B) Without limiting the functions of the Council under subsection (1A), the Council is, in controlling and managing the affairs and concerns of the University:
(a) to monitor the performance of the Vice-Chancellor, and
(b) to oversee the University’s performance, and
(c) to oversee the academic activities of the University, ….”

65 In written submissions, the University asserted that the “primary question” was “whether or not the Chancellor has authority to waive the University’s legal professional privilege”, a question “requiring the ascertaining of the proper construction of … the UNSW Act”. That formulation of the question was based on the assumption, in accordance with the finding of the Tribunal, that there had been no resolution of the Council conferring power on the Chancellor in this specific respect. The argument was not expanded upon in oral submissions.

66 Her Honour’s finding that the Vice Chancellor had power to waive privilege had not been made by the Appeal Panel and gave rise to a factual issue which had not been addressed by the Appeal Panel, but may have been, implicitly, by the first Tribunal. No orders were made to rectify this error of law, presumably because of the further conclusion reached by her Honour that to waive privilege “would have been contrary to a decision of the Council”. However, there was no factual finding as to the terms of any decision of the Council necessary to support such a conclusion. Accordingly, her Honour’s decision identified an error of law on the part of the Appeal Panel which should have resulted in further consideration by the Appeal Panel upon remittal.

67 Before leaving this question, it is convenient to note two further arguments which were raised by the parties. The first involved a submission by Mr McGuirk that both the Tribunal and the primary judge were in error in requiring that the question of authority to waive privilege was to be determined solely by reference to the UNSW Act and relevant instruments made under the Act. Mr McGuirk contended that the University was a corporation within s 57A of the Corporations Act 2001 (Cth) and was not excluded as an “exempt public authority”. He argued that the question of authority to waive privilege on behalf of the University could be determined by reference to principles relating to corporations generally. The argument was thus that s 16 of the UNSW Act, conferring a power of delegation on the Council, was not necessarily the only source of authority of the Chancellor, the Vice Chancellor or other officers of the University. This appears also to have underlain submissions made by Mr McGuirk with respect to “ostensible authority”, being a principle usually identified with the law of agency.

68 The possibility that an officer of the University could bind the University in accordance with principles set out in Tesco Supermarkets Ltd v Nattrass [1972] AC 153 and cases involving the waiver of privilege by a company officer were in fact discussed by the Appeal Panel at [24]. However, the Appeal Panel rejected that argument on the basis that the Chancellor is not “in the same or a similar position to the managing director or a senior officer of a company”: at [25].

69 This approach of the Appeal Panel was wholly dependent upon its construction of the UNSW Act. The primary judge, having accepted the correctness in law of that construction, did not address the issue at all.

70 There are many situations where it is important to start with the statute and not with the general law. That is often so where the statute sets out to vary the general law. But where the statute creates an institution which must operate in the milieu of the general law, to assume that the statute is the sole source of relevant legal principle invites the error which has been identified above.

71 The next question is what follows from the error identified. First, this matter involves large questions of principle, which were by no means adequately discussed in the course of the hearing. They might have raised both questions as to agency under the general law and what is known in public law as the Carltona principle, after Carltona Ltd v Commissioner of Works [1943] 2 All ER 560. As explained by Gummow and Hayne JJ in Re Patterson; Ex parte Taylor [2001] HCA 51; 207 CLR 391 at [176]:

“The presence of an express, and limited, statutory power of delegation does not necessarily exclude the existence of an implied power of a Minister to act through the agency of others.”

72 The principle has usually been articulated with respect to the statutory conferral of power on a Minister, but it is not necessarily so restricted: see O’Reilly v State Bank of Victoria Commissioners [1983] HCA 47; 153 CLR 1 at 11, referred to by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24 at 38. (See also Professor Enid Campbell, “Ostensible Authority in Public Law” (1999) 27 FL Rev 1.) Given the lack of consideration of this issue in argument, it is inappropriate for this Court to say anything further about the matter.

73 Secondly, the University sought to raise by way of a notice of contention a ground for upholding the decision of the primary judge on the basis that the disclosure of the privileged communication was a limited one made for a specific purpose and in confidence, so that the privilege was not waived or lost.

74 This contention had two limbs to it. First, as a matter of law, it appeared to accept that the test of waiver was not necessarily to be determined by reference to the subjective intention of a particular individual, but rather by reference to inconsistency between the conduct of the University (or its officers) and maintenance of the confidentiality attaching to the document: see Mann v Carnell 201 CLR 1 at [28] (Gleeson CJ, Gaudron, Gummow and Callinan JJ). There was no novelty, in the context of these proceedings, in relying on that principle, it having been set out as the basis of the legal approach to be adopted by the first Tribunal in its discussion at [16].

75 The second aspect of the notice of contention was, however, a factual one. There was no finding by the first Tribunal or the Appeal Panel as to the circumstances in which the document was provided either to officers of the University of Newcastle, or to the ICAC. The Appeal Panel did not need to address that question on the basis of legal principle upheld by it. The first Tribunal did address the question but held that it was unable to determine whether the circumstances in which the document had been supplied involved a waiver of legal professional privilege. Having concluded that there was a release of a confidential document to a third party, it concluded that the University had not proved an absence of waiver, being a matter on which it bore the onus of proof: at [40].

76 There appears to have been no evidence (and certainly no findings of the Tribunal) as to the manner in which the University operated. There was no evidence of the manner in which the day-to-day functioning of the University was undertaken, the respective roles, as a matter of practice, of the Chancellor and Vice Chancellor, the number of occasions on which Council met, or the kind of matters which it considered. Although the matter comes to this Court as an appeal on a question of law, there is an air of unreality about the abstract exercise of statutory construction on the basis of which the matter was determined below and by the Appeal Panel.

77 Perhaps somewhat more might have been gleaned from both the Act and the evidence than was expressly recognised in the reasons of the first Tribunal. Thus, it might have been open to the Tribunal to infer that, although the legislation provided that the Council “acts for and on behalf of” the University, it would be inconceivable that, except in the most unusual cases, the Council would be asked to have any involvement in the multitude of decisions and conduct undertaken by officers of the University on a daily basis.

78 Further, some inferences may have been gleaned from the evidence before the Tribunal, including that noted by the first Tribunal at [8], identifying the arguments presented by Mr McGuirk:

“He asserts that a copy of the advice was provided to Professor Kenneth Dutton, Deputy Chancellor of the University [of] Newcastle and that a copy of the advice was also provided to Professor Brian English, Deputy Vice-Chancellor of the University of Newcastle.”

79 The University of Newcastle may operate differently from the University of New South Wales. Nevertheless, the inference was available that both those holding the office of Chancellor (or Deputy Chancellor) and Vice Chancellor (or Deputy Vice Chancellor) might be directly involved in the day-to-day administration of university affairs.

80 Other evidence in similar vein appears to have been accepted by the first Tribunal. Thus, in proceedings before the ICAC, Professor Dutton is recorded in the transcript (which was provided to the Tribunal) as having stated that when “having lunch with some friends, one of whom was a very, very experienced and senior member of the Council of another New South Wales University”, he had been offered an opportunity to see the advice of senior counsel in respect of a particular matter, in confidence. He said he accepted the offer. Mr McGuirk also tendered an email, apparently from Professor Dutton to him, which stated that the advice to which he had referred at the ICAC hearing “was made available to me In Confidence, with the approval of the Chancellor of the University concerned”.

81 It might have been inferred from this material that the “very, very experienced and senior member” was a member of the UNSW Council and that she had deemed it appropriate to provide a copy of the advice to Professor Dutton, but only with the approval of her Chancellor. The further inference might have been drawn that such a person would not have so acted without approval from an appropriate officer of the University, with power to give such approval. It might further have been inferred that, if the Chancellor of the University had been asked to approve such conduct, a person of his status and knowledge of University affairs would not have given approval unless it were appropriate and, if he had thought it were necessary, would himself have discussed the matter with Vice Chancellor.

82 Some, but not all of these inferences were drawn by the first Tribunal. However, there may be certain implicit findings in the conclusion of the Tribunal member that a resolution of Council was not the only mechanism by which waiver could be effected: at [40]. In the present case, the primary judge appears to have accepted that proposition in part by finding that the Vice Chancellor also had power to make decisions for the University and would have had power to waive privilege: at [26].

83 There is much to be said for the parties in proceedings before the Tribunal restricting the issues and the evidence as far as is possible, so as to limit the expense and resources involved in the resolution of disputes under the FOI Act. However, when senior members of the governing body of an agency provide documents to third parties, the agency must expect an inference to arise that legal professional privilege in the document has been waived in the absence of any evidence to the contrary. The approach of the University in the present case was largely limited to identifying the absence of a resolution by the Council authorising the waiver of privilege. This Court can glean only the barest outlines of the issues which may have been addressed in the advice (which is not before the Court), the circumstances in which, and the purposes for which, it was obtained and the uses to which it was put. Legal advice will often be obtained for the purposes of litigation, the conduct of which will be of no immediate concern of the Council of the University. It might be expected that important decisions will be made with respect to such litigation without any specific authorisation from the Council.

84 These findings (or lack of findings) prevent the matter being dealt with in this Court on the basis relied on in the notice of contention. It would appear that senior counsel for the University accepted that position in the course of argument, with the result that the University contended only that in the event that error of law had been identified, it would be necessary to remit the matter to the Tribunal for further consideration.

85 On the findings actually made by the first Tribunal, the University could not succeed on its contention. It would presumably need to call evidence which it did not seek to do before the first Tribunal. On the basis that the first Tribunal had not erred in the way for which the University contended before the Appeal Panel, it is unclear on what basis it should now be permitted to run a new factual case.

86 Because the University does not contend it should have succeeded before the Appeal Panel on a ground not addressed by the Panel, there would appear to be no justification for a remitter. The first Tribunal decision not having been shown to be attended by error of law, there is no suggestion that the Appeal Panel would have granted leave to reopen the factual findings of the first Tribunal. In any event it did not consider further evidence nor does it appear that it was asked to do so.

87 In these circumstances, the decision of the primary judge being in error, the appeal to her should have been upheld, without remitter. The 2006 Appeal Panel decision should be set aside and the appeal from the first Tribunal decision dismissed.

Costs

88 In relation to the University’s appeal, there was a question as to whether the substantive argument upon which the University has succeeded was raised either before Nicholas J, or before the primary judge. Counsel conceded that in the circumstances the University did not press for costs, if successful on that point: Tcpt, 13/08/09, p 77.

89 The second question concerns the costs of Mr McGuirk’s appeal. As already noted, the procedural course taken in respect of this matter has been somewhat convoluted. As it was explained by counsel for the University in the course of argument, objection was originally taken to Mr McGuirk’s appeal on the ground that it was incompetent. Mr McGuirk apparently accepted that proposition and filed an application for leave to appeal, being the way the matter came before this Court. No objection was taken to the application for leave to appeal: Tcpt, p 21. Mr McGuirk was entitled to appeal (with leave) from the judgment of Harrison AsJ, because only part of the matter which he sought to agitate was accepted and remitted to the Tribunal. Leave was required because the matter did not involve any monetary amount, let alone one above the prescribed statutory floor: Supreme Court Act 1970 (NSW), s 101(2)(r). However, none of these factors should affect the final order as to costs. Offers of compromise aside, Mr McGuirk having been successful in his application for leave to appeal and the consequent appeal, he would normally obtain an order for costs, albeit limited to costs as a litigant in person, from the time that he was no longer represented.

90 There is, however, a complicating factor. As noted by the primary judge in a second decision handed down on 31 August 2007 (“the Costs Judgment”) she had originally taken the view that the University should pay Mr McGuirk’s costs of the summons, as he had been successful in having the decision of the Appeal Panel set aside. Her Honour then noted that, on 31 August 2007, the University had tendered a letter dated 25 October 2006 in which it had offered to settle the proceedings by providing Mr McGuirk with access to the advice, on the condition that the proceedings be dismissed and each party bear its or his own costs of those proceedings and the proceedings in the Tribunal. (That letter post-dated the 2006 Appeal Panel decision by two months.) Her Honour then made an order that Mr McGuirk have his costs up to the date of the letter and that thereafter, he should pay the University’s costs on an indemnity basis.

91 The primary judge, having set out the terms of the offer, stated simply that “Mr McGuirk could have had the very thing he wanted”, but noted that he rejected the offer: at [6]. Putting to one side a question raised by Mr McGuirk as to whether this was a Calderbank offer, no attempt was made to assess the reasonableness of his rejection. That would, at the very least, have required consideration of the significance of the proposed settlement with respect to costs. In fact, it was not merely the rejection of the offer, but also the conduct of the University in making the offer which gave rise to a question as to what may have been the real issues in these proceedings. However, these matters have not been addressed on appeal and the question of costs with respect to Mr McGuirk’s application should be dealt with on the basis set out above. Her Honour’s costs orders must be set aside in any event.

92 Accordingly, I would propose the following orders:

(1) In the University’s appeal, being matter no 40127 of 2008;

(a) allow the appeal and set aside the orders of the Appeal Panel of the Administrative Decisions Tribunal in University of New South Wales v McGuirk (No 2) [2008] NSWADTAP 8;
(b) declare that the Administrative Decisions Tribunal has no power under s 63(2) of the Administrative Decisions Tribunal Act 1997 to grant access to a person to a document which is an exempt document of the University of New South Wales by virtue of Schedule 1, cl 10 of the Freedom of Information Act 1989 (NSW);
(c) no order as to the costs of the appeal.

(2) In relation to the appeal of Gerard Michael McGuirk (matter no 40652 of 2007):

(a) grant leave to appeal;
(b) deem the notice of appeal in the matter bearing the same number, filed on 21 December 2007, to have been properly filed pursuant to this grant of leave;
(c) otherwise waive the requirements of the rules with respect to the steps to be taken in relation to the appeal;
(d) allow the appeal and set aside orders 5 and 6 made by Harrison AsJ and entered on 4 September 2007;
(e) in lieu of the 2006 decision of the Appeal Panel, dismiss the University’s appeal from the decision of the Tribunal in McGuirk v University of New South Wales [2005] NSWADT 289;
(f) order the University to pay Mr McGuirk’s costs of the proceedings in this Court and in the Common Law Division, such costs to be limited to those payable to a litigant in person from the date on which Mr McGuirk ceased to have legal representation.

: I agree with Basten JA.

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07/10/2009	-	Correct date of hearing - Paragraph(s) Coversheet
02/06/2010	-	Typographical errors - Paragraph(s) 8, 19, 32, 38, 90, 92