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

The New South Wales Court of Appeal considered appeals by the University of New South Wales and Mr. McGuirk concerning a decision of the Administrative Decisions Tribunal (ADT) regarding access to a document under the *Freedom of Information Act 1989* (NSW). Mr. McGuirk sought access to a document that the University claimed was exempt due to legal professional privilege. The ADT had previously allowed Mr. McGuirk access to the document, a decision that was then appealed to the Supreme Court, which remitted the matter back to the ADT for further determination.

The primary legal issues before the Court of Appeal were whether the ADT possessed the power to grant access to a document that was otherwise exempt under the *Freedom of Information Act 1989* (NSW) by virtue of legal professional privilege, and whether the University had waived that privilege by providing the document to a third party with the approval of the Chancellor. The Court also considered whether an appeal lay from the primary judge's reasons, rather than the orders made, and whether the ADT had erred in failing to remit the matter to the ADT on a specific ground.

The Court of Appeal reasoned that the ADT's powers were limited to those conferred by statute, and that s 63(2) of the *Administrative Decisions Tribunal Act 1987* did not grant the ADT the power to override the statutory exemption for documents subject to legal professional privilege under the *Freedom of Information Act 1989* (NSW). The Court found that the ADT had erred in its previous determination by exercising a power it did not possess. Regarding the waiver of privilege, the Court held that the provision of the document to a third party with the Chancellor's approval did not, in the circumstances, constitute a waiver of legal professional privilege.

The Court of Appeal allowed the University's appeal, setting aside the orders of the ADT's Appeal Panel. It declared that the ADT had no power under s 63(2) of the *Administrative Decisions Tribunal Act 1987* to grant access to a document that was exempt by virtue of Schedule 1, cl 10 of the *Freedom of Information Act 1989* (NSW). No order was made as to the costs of the appeal.