McGuirk v University of NSW - [2010] NSWADT 158

No judgment structure available for this case.

CITATION: McGuirk v University of NSW [2010] NSWADT 158

DIVISION: General Division

PARTIES:
APPLICANT
(Gerard) Michael McGuirk
RESPONDENT
University of New South Wales

FILE NUMBER: 073366

HEARING DATES: On the papers

SUBMISSIONS CLOSED: 30 November 2009

DATE OF DECISION:
24 June 2010

BEFORE: Montgomery S - Judicial Member

CATCHWORDS: Freedom of Information - exempt document - Legal professional privilege - documents affecting business affairs

LEGISLATION CITED: Freedom of Information Act 1989
Administrative Decisions Tribunal Act 1997

CASES CITED: Ainsworth v Wilding (1900) 2 Ch 315
Attorney General .of the Northern Territory v Kearney (1985) 158 CLR 500
Commissioner, Australian Federal Police v Propend Finance Pty Ltd 188 CLR 501
McGuirk v University of New South Wales [2006] NSWADT 258
McGuirk v University of New South Wales [2007] NSWADTAP 64
McGuirk v University of New South Wales [2009] NSWADTAP 11
McGuirk v University of New South Wales, University of New South Wales v McGuirk [2009] NSWCA 321
Packer v Deputy Commissioner of Taxation [1985] 1 Qd R 275
Saggers v Director General, Attorney General's Department [2005] NSWADT 193
Trade Practices Commission v Sterling 36 FLR 244
University of New South Wales v Gerard Michael McGuirk [2006] NSWSC 1362

REPRESENTATION:
APPLICANT
In person
RESPONDENT
P Singleton, barrister

REASONS FOR DECISION

1 This matter has been the subject of previous decisions of this Tribunal. The background to the matter is set out in earlier decisions: see McGuirk v University of New South Wales [[2006] NSWADT 258; McGuirk v University of New South Wales [2007] NSWADTAP 64.

2 Mr McGuirk applied to the University of New South Wales for certain documents under the Freedom of Information Act 1989 (“the FOI Act”). The material he requested was correspondence between the University and the Crown Solicitor’s Office, or barristers briefed by that office. The correspondence related to a private prosecution that Mr McGuirk brought against five employees, or former employees, of the University for alleged breaches of the Protected Disclosures Act 1994. Mr McGuirk requested the correspondence relating to the legal costs associated with the defence of that prosecution.

3 The University asked Mr McGuirk to pay an advance deposit of $660 in order to cover the costs of dealing with the application. It said that the reason for requesting that deposit was the high number of applications for access that Mr McGuirk had made since 2003 and the work and expense involved in dealing with those applications.

4 Mr McGuirk did not pay the advance deposit within the time specified by the University and the University decided to refuse to continue to deal with the application. Mr McGuirk applied for an internal review of that decision. The internal review was not completed within the 14-day period allowed by section 34(6) of the FOI Act. Consequently, under section 24 of the FOI Act, the University was deemed to have made a determination refusing access to the documents. Mr McGuirk then brought an application to the Tribunal for a review of the University’s deemed determination.

5 The matter initially came before me for hearing in March 2006 and my decision was recorded as McGuirk v University of New South Wales [2006] NSWADT 258. That decision was set aside by the Appeal Panel and the matter was remitted for review of the deemed decision to refuse access to the requested documents: McGuirk v University of New South Wales [2007] NSWADTAP 64.

6 The appeal panel explained the issue before the Tribunal and the approach to be taken as follows:

Significance of reviewing the deemed decision

33 Nature of merits review. Section 63 of the ADT Act sets out the powers of the Tribunal when reviewing a reviewable decision:

…

35 Burden of proof. Unlike the traditional model for merits review, where there is no onus on either party to prove their case, the FOI Act imposes an onus on an agency to establish that the determination is justified: s 61. This provision does not substantially affect the nature of the Tribunal’s role. It merely means that the agency must satisfy the Tribunal as to any disputed questions of fact: Bennett v University of New England (unreported, NSW Dist Ct, Dunford J, 7 August 1991) at p 10. Where the Tribunal is not persuaded one way or the other, the statutory onus comes into play and the agency’s assertion as to the facts will not be made out: Federal Commissioner of Taxation v Elton (1990) 20 ATR 1796 at 1798.

36 Exercising the functions of the administrator. While it is common to regard the Tribunal as “standing in the shoes” of the administrator, the Tribunal is not the primary decision maker and, under s 63(2), it may only exercise the functions conferred on the administrator for the purpose of reviewing the decision: In Commonwealth Bank Officers Superannuation Corp Pty Ltd v Commissioner of Taxation (2005) 148 FCR 427 the Court said at [29]:

Ultimately, the question turns upon the proper construction of s 43 of the AAT Act. Section 43 empowers the Tribunal to exercise all the powers and discretions conferred upon the original decision maker, provided it does so for the purpose of reviewing a decision. Provided the necessary purpose is present, the power conferred upon the Tribunal is not otherwise limited. It is neither necessary nor permissible to put a gloss upon s 43 that would permit the Tribunal to exercise the decision maker’s powers and discretions only when those powers or discretions are necessarily interdependent with the decision under review, or where the power or discretion to be exercised by the Tribunal is necessarily involved in the making of the decision under review.

Powers on review

7 Mr McGuirk subsequently applied to the Appeal Panel to re-open that decision. The Appeal Panel refused that application: McGuirk v University of New South Wales [2009] NSWADTAP 11.

8 The issue to be determined is therefore whether the deemed decision to refuse access to the requested documents is the correct and preferable decision.

9 The University has identified 25 documents as falling within the scope of Mr McGuirk’s request. The University agreed to release several of those documents and it is my understanding that those documents are not subject of these proceedings. A copy of each of the documents in issue has been provided to the Tribunal as a confidential exhibit to the statement of Ms Helen Fleming made on 7 May 2008. The documents are described in a schedule to that annexure. Privilege is asserted in relation to the description of some of those documents. The documents are described and exemption is asserted as follows:

10 Section 63 of the Administrative Decisions Tribunal Act 1997 (“the ADT Act”) provides:

63 Determination of review by Tribunal

11 Section 16 of the FOI Act provides that a person has a legally enforceable right to be given access to an agency's documents in accordance with that Act.

12 Section 25(l)(a) of the FOI Act provides that an agency may refuse access to a document if it is an exempt document in accordance with one or more of the grounds of exemptions referred to in Schedule 1.

13 Section 25(4)(a) of the FOI Act provides that an agency shall not refuse access to an exempt document, if it is practicable to give access to a copy of the document from which the exempt matter has been deleted.

14 The onus is on the agency to satisfy the Tribunal that its decision was justified: section 61 of the FOI Act.

15 Clause 7 of Schedule 1 to the FOI Act provides:

7 Documents affecting business affairs

16 Clause 10 of Schedule 1 to the FOI Act provides:

10 Documents subject to legal professional privilege

17 The University's position is that most of the documentation sought should be released. However, some material should be withheld on the grounds that the material is exempt pursuant to either Clause 7 or Clause 10 of Schedule 1 to the FOI Act and that withholding that material is the correct and preferable decision. The bulk of the material that the University contends should be withheld is said to be covered by legal professional privilege and therefore is exempt pursuant to Clause 10 of Schedule 1 to the FOI Act. A copy of each of the documents in issue has been provided to the Tribunal as a confidential exhibit to the statement of Helen Fleming made on 7 May 2008. At paragraphs 5 – 7 of her statement, Ms Fleming stated:

Protected Disclosures Act

18 Ms Fleming annexed to her statement a copy of a letter from the Crown Solicitor dated 4 March 2008, which sets out the views of the Crown Solicitor in relation to the relevant documents applicable to them, a letter from Mr Rich dated 17 March 2008, which sets out his views in relation to the two relevant documents applicable to him and a copy of the statement by Mr Mullen referred to in paragraph 5(j) of her statement.

19 I am satisfied that legal professional privilege is asserted in relation to each of the documents in issue.

Clause 10 - legal professional privilege

20 Mr Singleton referred to a number of authorities which have considered the circumstances in which legal professional privilege will apply. He submits that legal professional privilege will arise if each of the following rules is satisfied:

21 Mr Singleton further submits that a solicitor’s notes and memoranda are also privileged. Notes and memoranda made by the solicitor are placed on the same footing as communications between the solicitor and the client. He submits that a communication can be privileged notwithstanding that the communication is made through agents of the party and the solicitor or the agent of either of them. In support of these submissions, Mr Singleton relies on a number of authorities, including Commissioner, Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501, Trade Practices Commission v Sterling (1979) 36 FLR 244 and Ainsworth v Wilding (1900) 2 Ch 315.

22 He submits that one significant aspect of the privilege's attaching to communications, rather than documents or information per se, is that the privilege operates to prevent disclosure of the communication rather than disclosure of a particular document or other means of recording the communication. Thus, a document that is itself not a privileged communication will be protected from disclosure to the extent that it records the content of a communication that was privileged. a bill of costs will not be privileged except to the extent that it contains a summary of privileged communications: Packer v Deputy Commissioner of Taxation [1985] 1 Qd R 275.

23 Mr Singleton submits that the application of these rules of legal professional privilege in the present matter leads to the conclusion that several of the documents are wholly privileged, several parts of other documents are privileged and several documents are not privileged at all.

24 The University asserts Documents 9, 22, 23, 24 are exempt under clause 10 as they consist of correspondence between the Crown Solicitor and the University and therefore fall within one of the categories identified in Sterling and adopted by the Tribunal in Cianfrano v Director General, Attorney General's Department [2005] NSWADT 303 at [19]:

(a) Any communication between a party and his professional legal adviser if it is confidential and made to or by the professional adviser in his professional capacity and with a view to obtaining or giving legal advice or assistance; notwithstanding that the communication is made through agents of the party and the solicitor or the agent of either of them.

25 Documents 2, 4, 8, 15, 17, 19 and 21 are copies of invoices sent by the Crown Solicitor for the legal advice provided to the University. Some of the descriptions reveal the kind of research done and advice provided. The University asserts that as this document was created in the course of a relationship of privilege and the release of that information would reveal the nature of the advice sought, such lines are exempt under clause 10. The University agrees that the remainder of those documents can be released.

Clause 7 - business affairs

26 The University asserts that Documents 11 and 12 are exempt under clause 7 of schedule 1 to the FOI Act. Documents 11 and 12 are invoices from Mr Andrew Rich of Counsel. In his letter of 17 March 2008, Mr Rich claimed an exemption under clause 7(1)(c) over those parts of documents 11 and 12 that relate to the charge out rate he negotiated with the Crown Solicitor’s Office for doing certain legal work. Mr Rich asserted that his charge out rates are a sensitive commercial matter of some significance to his ability to maintain a competitive practice as a barrister and that the disclosure of his charge out rates would adversely affect his practice.

27 The University submits that the asserted exemption should not be overridden without good reason and that nothing has been advanced in this case to suggest such an approach.

The Tribunal’s power to order the release of exempt documents

28 The University submits that the Tribunal has no power to order the release of ,exempt documents. The University contends that University of New South Wales v Gerard Michael McGuirk [2006] NSWSC 1362 per Nicholas J was wrong in so far as it held that the Tribunal has power to order the release of exempt documents. The University submits that the decision of Nicholas J has been cast into doubt by the Court of Appeal decision in McGuirk v University of New South Wales, University of New South Wales v McGuirk [2009] NSWCA 321 (“the Court of Appeal 2009 decision”). It says that it is clear from the Court of Appeal 2009 decision that the Tribunal does not have the power to release an exempt document where the exemption arises under clause 10 of schedule 1 to the FOI Act.

29 The University submits that the restriction logically applies to all clauses of schedule 1 to the FOI Act. However, assuming that the Tribunal does have power to order the release of exempt material, the University submits that this case is not one that warrants its exercise. It says that if the Tribunal finds that the asserted exemptions are made out, then Mr McGuirk's application should fail.

30 The University submits that the Tribunal should make orders requiring the University to grant Mr McGuirk access to so much of the material in question as has not been the upheld as being exempt. Otherwise, access should be refused.

Mr McGuirk's case

31 Mr McGuirk asserts that he should be given access to the documents he has sought. He asserts that the onus lies with the University pursuant to section 61 of the FOI Act but indicated that he proposed to take no further action in this matter. He says that an agency that fails to discharge the burden imposed by section 61 of the FOI Act of establishing that its determination is justified must fail.

32 In regard to the Court of Appeal 2009 decision Mr McGuirk asserts that the Tribunal has the power, as opposed to the discretion, to order the release of an exempt document. This power imposes an obligation that the donee use the power consistent with the purposes for which it is given, and in good faith. Therefore, if the circumstances require its exercise, there is no discretion not to do so. This would be a failure to exercise jurisdiction and hence an error of law.

33 Mr McGuirk submits that section 63(1) the ADT Act not only confers the power to decide ‘what the correct and preferable decision is’, it also places an obligation on the Tribunal to do so. Therefore, even if the Tribunal did not have the power to order the release of the exempt document, the obligation to determine whether the decision of the agency not to release the document would not be diminished. He says that the Tribunal’s ability to determine the correct and preferable decision but not be able to make orders to give effect to that decision by making appropriate orders is analogous to the position of the Ombudsman.

34 Mr McGuirk submits that section 63(2) the ADT Act empowers the Tribunal to stand in the shoes of the relevant administrator. That section deems the decision of the Tribunal to be that of the administrator. Hence if it is the correct and preferable decision to provide access to the documents then there will be no need for the Tribunal to order the release of the documents, irrespective of it being exempt. He says that there can only be one correct and preferable decision under section 25(1)(a) of the FOI Act. It is not necessary that the Tribunal make any orders to give effect to its decision – once the decision is made it takes effect as the decision of the University by virtue of section 66 of the ADT Act.

35 Mr McGuirk submits that the correct and preferable decision of the Tribunal is that he be provided with the documents that he has requested.

Discussion

36 As I have indicated above, I have been provided with a copy of each of the documents that remains in dispute. I have considered each of those documents and I agree with the University’s assertion as to legal professional privilege. Lockhart J’s well-known categorisation of documents affected by legal professional privilege in Trade Practices Commission v Sterling (1979) 36 FLR 244, 245-6 has often been sited in matters in this Tribunal. The categorisation (with authorities deleted) was as follows:

37 The dominant purpose of each document is apparent from the documents themselves. I am satisfied that the relevant material that is said to be exempt concerned legal advice requested or received or the conduct of pending or anticipated litigation. In my view, with the exception of document 25, each of the individual documents prima facie is protected by the privilege to the extent asserted by the University.

38 There is no suggestion in the evidence that the privilege over these documents has been waived.

39 Legal professional privilege does not apply to a communication which was made "in furtherance of an illegal purpose, directed to frustrating the processes of the law and abuse of public office": Attorney General .of the Northern Territory v Kearney (1985) 158 CLR 500; Saggers v Director General, Attorney General's Department [2005] NSWADT 193 at [30]. However, for this exception to apply, the conduct must be egregious or of a gross kind (Saggers at [36]). In the present circumstances, there is no evidence of such conduct. Consequently, it is my view that the exemption pursuant to clause 10 of schedule 1 to the FOI Act applies.

40 However, it is clear from my perusal of the documents that there is scope for granting access to some of them by excising parts that bring the exemption into play. In this regard, I agree with the University’s suggested excision of material.

41 It is clear from the Court of Appeal 2009 decision that the Tribunal’s discretion to grant access to exempt documents does not apply where the ground of exemption is legal professional privilege.

42 I do not agree that document 25 is exempt pursuant to clause 10 of schedule 1 to the FOI Act and it should therefore be released. This is consistent with the approach adopted in the schedule to Ms Fleming’s statement and correspondence provided by the Crown Solicitor’s Office to the University. It is probable that the assertion of exemption in the University’s submissions was included in error.

43 I also agree with the University’s assertion that Documents 11 and 12 are exempt under clause 7 of schedule 1 to the FOI Act. It is clear from my perusal of those documents that they contain information that is commercially sensitive to Mr Andrew Rich. Notwithstanding the age of the information included in Documents 11 and 12, it is my view that release of the information could still reasonably be expected to have an unreasonable adverse effect on Mr Rich’s practice.

44 I agree with the University submission that even if there is power to do so, the asserted exemption should not be overridden without good reason and that nothing has been advanced in this case to suggest such an approach. In the circumstances, I refuse to exercise the residual discretion.

45 In my view, the correct and preferable decision is that Mr McGuirk should be granted access to so much of the material in question as has not been found to be exempt. Otherwise, the decision to refuse him access to the material should be affirmed.

Orders

1. Mr McGuirk is to be granted access to so much of the material in question as has not been found to be exempt.
2. The decision to refuse him access to the material is otherwise affirmed.

Actions

Download as PDF Download as Word Document

Citations

McGuirk v University of NSW [2010] NSWADT 158

Most Recent Citation

Moran v Shellharbour City Council [2011] NSWADT 241

Cases Citing This Decision

1

Moran v Shellharbour City Council [2011] NSWADT 241

Cases Cited

13

Statutory Material Cited

2

McGuirk v University of New South Wales [2006] NSWADT 258

McGuirk v University of New South Wales [2007] NSWADTAP 64

Commissioner of Taxation v Apted [2021] FCAFC 45

CITATION:	McGuirk v University of NSW [2010] NSWADT 158
DIVISION:	General Division
PARTIES:	APPLICANT (Gerard) Michael McGuirk RESPONDENT University of New South Wales
FILE NUMBER:	073366
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	30 November 2009
DATE OF DECISION:	24 June 2010
BEFORE:	Montgomery S - Judicial Member
CATCHWORDS:	Freedom of Information - exempt document - Legal professional privilege - documents affecting business affairs
LEGISLATION CITED:	Freedom of Information Act 1989 Administrative Decisions Tribunal Act 1997
CASES CITED:	Ainsworth v Wilding (1900) 2 Ch 315 Attorney General .of the Northern Territory v Kearney (1985) 158 CLR 500 Commissioner, Australian Federal Police v Propend Finance Pty Ltd 188 CLR 501 McGuirk v University of New South Wales [2006] NSWADT 258 McGuirk v University of New South Wales [2007] NSWADTAP 64 McGuirk v University of New South Wales [2009] NSWADTAP 11 McGuirk v University of New South Wales, University of New South Wales v McGuirk [2009] NSWCA 321 Packer v Deputy Commissioner of Taxation [1985] 1 Qd R 275 Saggers v Director General, Attorney General's Department [2005] NSWADT 193 Trade Practices Commission v Sterling 36 FLR 244 University of New South Wales v Gerard Michael McGuirk [2006] NSWSC 1362
REPRESENTATION:	APPLICANT In person RESPONDENT P Singleton, barrister