University of New South Wales v McGuirk

[2006] NSWADTAP 38

Set aside by Appeal: Set aside by Appeal on 25 July 2007: McGuirk v University of New South Wales [2007] NSWSC 806

Appeal Panel - Internal

CITATION:	University of New South Wales v McGuirk (GD) [2006] NSWADTAP 38
PARTIES:	APPELLANT University of New South Wales RESPONDENT Gerard Michael McGuirk
FILE NUMBER:	069002
HEARING DATES:	31/03/2006
SUBMISSIONS CLOSED:	03/31/2006
DATE OF DECISION:	08/22/2006
BEFORE:	Hennessy N - Magistrate (Deputy President); Wilson R - Judicial Member; Blake C - Non Judicial Member
CATCHWORDS:	adequacy of reasons - burden of proving the law - leave to extend to the merits - waiver of privilege
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	053100
DATE OF DECISION UNDER APPEAL:	12/08/2005
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Evidence Act 1995 Freedom of Information Act 1989 University of New South Wales Act 1989
CASES CITED:	Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430 Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 Director General, Attorney General's Department v Cianfrano (GD) [2006] NSWADTAP 26 Eden Productions Pty Ltd v Southern Star Group Ltd (unreported, New South Wales Supreme Court, 17 December 2002) Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49 Global Medical Imaging Management Limited (in liquidation) v Australian Mezzanine Investments Pty Limited & Anor [2003] NSWSC 430 (14 May 2003) Lloyd v Veterinary Surgeons Investigating Committee [2005] NSWCA 45 Mann v Carnell (1999) 201 CLR 1 Meltend Pty Ltd v Restoration Clinics of Australia Pty Ltd (1997) 145 ALR 391 Pettitt v Dunkley [1971] 1 NSWLR 376 Prentice v Cummins (No 5) 124 FCR 67 Public Service Board of New South Wales v Osmond (1986) 159 CLR 656 Tesco Supermarkets Ltd v Nattrass [1972] 8 AC 153 Woollahra Municipal Council v Westpac Banking Corporation (1994) 33 NSWLR 529
REPRESENTATION:	APPELLANT P Singleton, counsel RESPONDENT In person
ORDERS:	1. Appeal allowed; 2. The Tribunal’s decision is set aside. In substitution for that decision, the Appeal Panel makes the following decision: The decision of the University to refuse access to the legal advice prepared by Bret Walker SC and Andrew Ball is affirmed; 3. The respondent’s application for costs is refused

Introduction

1 Mr McGuirk applied to the University of New South Wales (the University) for a document under the Freedom of Information Act 1989 (FOI Act). The document was a legal advice prepared by Bret Walker SC and Andrew Bell (the advice) at the request of the Council of the University. The University refused access to the advice on the basis that it was covered by an exemption in Schedule 1 to the FOI Act relating to documents subject to legal professional privilege. Mr McGuirk accepted that the advice was covered by that exemption when it was created but said that the privilege had been waived. The Tribunal decided that the University had not discharged its burden of establishing that the determination was justified and ordered that the advice be released to Mr McGuirk. The University has appealed to the Appeal Panel against that decision.

2 According to Mr McGuirk the University has waived the privilege over the advice because there was evidence that a member of the Council of the University, with the express approval of the Chancellor, had released the advice to Professor Dutton who was a member of the Council of the University of Newcastle. In addition, there was evidence that the advice was provided to the Independent Commission Against Corruption (ICAC). The University’s main point was that the privilege attaching to the advice belonged to the University, and that only the University, as distinct from an individual member of Council, could waive the privilege. As there had been no Council resolution waiving privilege or authorising anyone else to do so, privilege has not been waived.

3 Under s 113(2) of the Administrative Decisions Tribunal Act 1997 (ADT Act) the University may appeal on any question of law. With the leave of the Appeal Panel, the appeal may extend to a review of the merits of the decision. The University sought leave to appeal against the merits of the Tribunal’s decision. We deal with that application below at [34].

Exemption for documents subject to legal professional privilege

4 Under s 16(1) of the FOI Act “[a] person has a legally enforceable right to be given access to an agency’s documents in accordance with this Act.” Following an application for access to documents, an agency must determine whether access to the document is to be given or refused, and any charge payable for dealing with the application: FOI Act, s 24. An agency may refuse access to a document if it is an exempt document: FOI Act, s 25(1)(a). An exempt document includes a document referred to in any one or more of the provisions of Schedule 1: FOI Act, s 6. Clause 10 of Schedule 1 relates to documents subject to legal professional privilege:

10 Documents subject to legal professional privilege

(1) A document is an exempt document if it contains matter that would be privileged from production in legal proceedings on the ground of legal professional privilege.

(2) A document is not an exempt document by virtue of this clause merely because it contains matter that appears in an agency’s policy document.

5 It is the common law principles of legal professional privilege, rather than the statutory provisions relating to client legal privilege in the Evidence Act1995, that are applicable in this case: Director General, Attorney General's Department v Cianfrano (GD) [2006] NSWADTAP 26, at [9] to [12]. Section 61 of the FOI Act provides that the onus of proving that the advice is exempt falls on the University.

6 Legal professional privilege is a common law doctrine. This case involves what is known as “advice privilege” that is, a confidential communication between a lawyer or lawyers (Bret Walker SC and Andrew Bell) and their client (the University) for the dominant purpose of being furnished with legal advice from those lawyers: Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49. It is clear that the privilege belongs to the client: Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 at 570 per Gummow J.

7 In Cross on Evidence, Byrne and Heydon define the circumstances in which waiver of privilege occurs:

Waiver occurs where the party entitled to privilege performs an act which is inconsistent with the confidence preserved by it. (Byrne D and Heydon JD, Cross on Evidence , loose leaf, vol 1, par 25010 (Butterworths, Sydney.) (Emphasis added.)

8 In order to determine whether privilege has been waived, it is necessary to consider whether the University has acted in such a way as to abandon the confidentiality essential to a claim of legal professional privilege: Woollahra Municipal Council v Westpac Banking Corporation (1994) 33 NSWLR 529 at 521. Privilege may be waived if the confidential communication is disclosed to a third person, either expressly or inadvertently: Mann v Carnell (1999) 201 CLR 1.

Tribunal’s decision

9 The Tribunal set out the relevant legislation and the circumstances in which legal professional privilege is waived. It held that there is an initial burden on Mr McGuirk to present prima facie evidence to support his contention that privilege has been waived. According to the Tribunal, if that evidence is sufficient, the burden of proving that legal professional privilege has not been waived shifts to the University (at [38]). The prima facie evidence provided by Mr McGuirk included the following:

(a) evidence from Professor Dutton, a member of the Council of the University of Newcastle, recorded in a transcript of proceedings before the ICAC that a member of the University 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; (Evidence of Professor Dutton at Operation Orion Reference: E03/0895 Wednesday on 8/12/04 at page 1803.)

(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;

(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.

10 The Tribunal focused on the evidence summarised in paragraphs (a) and (b) above. While the Tribunal acknowledged that Mr McGuirk had an incomplete copy of the advice, no particular emphasis was given to that fact. Nor did the Tribunal make any findings about Mr McGuirks’s assertion that evidence in other transcripts of ICAC hearings disclosed that a full copy of the advice had been provided to ICAC. However, the Tribunal found that Mr McGuirk had presented enough evidence to shift the burden of proving that legal professional privilege had not been waived, on to the University (at [38]). The Tribunal found that a copy of the advice had been given to Professor Dutton, even though it could not make a conclusive finding about who gave him that advice or on what terms it was given (see [39]).

11 The University submitted that no individual member of the University Council, even with the approval of the Chancellor, has the authority to waive privilege on behalf of the University. The Tribunal did not give any weight to evidence from Ms Melanie Harris, the executive officer to the Vice-Chancellor of the University, that the Vice-Chancellor had told her that the Chancellor had advised him that he could not recall having authorised the release of the advice.

12 The University also relied on evidence from Mr John Daniel Encel that the Council had never resolved to waive privilege, or authorised anyone else to do so. The relevant parts of Mr Encel’s statement dated 2 August 2005 is set out below:

At a confidential special meeting of Council on 10 July 2002, a Joint Memorandum of Advice from Bret Walker SC and Andrew S Bell (being the advice which the Vice-Chancellor had undertaken to obtain) was tabled. The then-Chancellor, Dr John Yu, stressed that the Joint Memorandum of Advice was confidential. I believe that this Advice is the advice to which Mr McGuirk seeks access.

I have perused the electronic and paper minutes of Council for the period from July 2002 to June 2005 (inclusive) and have ascertained that Council has not passed any other resolution with respect to this advice. In particular, it has never resolved to waive legal professional privilege over this advice or authorised any other person to do so.

13 The Tribunal accepted that evidence, but went on to say, at [40] and [41], that:

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.

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.

14 It was common ground that the advice was protected by legal professional privilege when it was created. The University accepted the Tribunal’s finding that Mr McGuirk had adduced sufficient evidence to raise a prima facie case of waiver. The University also accepted that it had the burden of proving that it had not waived its privilege over the advice. The University did not challenge the Tribunal’s assumption that if the University authorised the disclosure of the advice to Professor Dutton, that would amount to a waiver of its privilege over the advice. The evidence the University relied on to establish that the University had not authorised the disclosure was that of Mr Encel that the Council had never resolved to waive privilege, or authorised anyone else to do so. The Tribunal accepted that evidence, but did not accept the argument “that the only mechanism by which such waiver could be effected is by a resolution of the Council.” The Tribunal held that if the advice was given to Professor Dutton with the approval of the Chancellor, “that could in some circumstances be sufficient to waive ... legal professional privilege ...”

15 The University’s first ground of appeal was that this statement disclosed an error of law because it can only mean that the Tribunal concluded that the Chancellor may have been able to waive privilege in some circumstance without a resolution of Council. 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. Alternatively, the University says that the Tribunal erred by failing to give adequate reasons for its finding that “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.”

16 The University’s second ground of appeal was that the Tribunal proceeded on the basis that s 61 of the FOI Act imposes on the University a burden of proving what the law is. We understand that the University was referring to the fact that the Tribunal was “unable to finally determine” the circumstance in which privilege would be waived if the advice was disclosed with the Chancellor’s approval. The Tribunal went on to say that the University had not discharged its onus of proof. The University interpreted this comment to mean that the University had not discharged its onus of proving to the Tribunal that there was no mechanism (other than a resolution by Council) by which privilege could be waived. According to the University, no litigant has the burden of proving the law: Prentice v Cummins (No 5) 124 FCR 67 at 85 per Sackville J.

Waiver of privilege

17 The first ground of appeal is that the Tribunal erred when it rejected the University’s proposition that the only way in which the University could waive privilege was either by a resolution of Council or if empowered by statute to do so. When determining this issue, we start with the undisputed proposition that the University is the client and the holder of the privilege. The University is established by s 4 of the University of New South Wales Act 1989 (University Act) establishes the University consisting of:

(a) a Council,

(b) the professors and full-time members of the academic staff of the University and such other members or classes of members of the staff of the University as the by-laws may prescribe, and

(c) the graduates and students of the University.

18 The University is a body corporate and possesses the powers incidental to a body corporate: University Act, s 5. The governing authority of the University is the Council: University Act, s 8. The Council consists of several individuals including the Chancellor and the Vice-Chancellor: University Act, s 9. The functions of the Council are set out in s 15(1A):

(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.

19 Section 16 gives the Council power to delegate any of its functions, except the delegation power, to any authority or officer of the University:

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.

20 The Chancellor is a member of the Council and has the functions conferred or imposed on him or her by the University Act, or any other Act: s 9(1)(a) and s 10(3). We are not aware of any other Act that confers functions on the Chancellor. The Council has the authority to make by-laws with respect to “the functions of the presiding member of the Council or Academic Board”: University Act, s 27(1)(e). Cl 4 of the By-law is the only regulation which relates to the functions of the Chancellor. That clause states that:

(1) The Chancellor and Deputy Chancellor, by virtue of their offices, are members of:

(a) every committee constituted by any by-law or rule or any resolution of the Council, and

(b) every board and faculty in the University.

(2) The Chancellor may preside at any meeting of any such committee, board or faculty and has all the rights and powers of the presiding member of any such committee, board or faculty.

21 The Chancellor is to preside at all meetings of the Council at which the Chancellor is present: University Act, Schedule 1, Cl 7(1).

22 Next we examine the mechanisms by which the University could waive its privilege. The purpose of doing so is to determine whether the Tribunal’s conclusion that there may be mechanisms other than a resolution of Council by which waiver could be effected, is correct. In our view, assuming that the advice was given to Professor Dutton with the approval of the Chancellor, a resolution of Council would have been needed before that conduct waived privilege over the advice. The University could have waived privilege by:

(a) by passing a resolution to that effect;

(b) by passing a resolution specifically authorising the Chancellor to waive privilege;

(c) by passing a resolution delegating its function to waive legal professional privilege to the Chancellor;

(d) by passing a resolution giving the Chancellor ostensible authority to waive the privilege.

23 In relation to (d), a client such as the University, may authorise an employee or an agent to waive privilege. If the client is an individual, his or her legal representative has ostensible authority from the client to waive the client’s privilege: Meltend Pty Ltd v Restoration Clinics of Australia Pty Ltd (1997) 145 ALR 391 at 403 per Goldberg J. Section 122 of the Evidence Act 1995 sets out the manner in which client legal privilege may be waived. That section provides that, subject to certain exceptions, privilege is waived if “a client or party has knowingly and voluntarily disclosed to another person the substance of the evidence...” However s 122(3) provides that privilege is not waived unless the “employee or agent was authorised to make the disclosure.” Eden Productions Pty Ltd v Southern Star Group Ltd (unreported, New South Wales Supreme Court, 17 December 2002) was a case decided in accordance with the Evidence Act. Gzell J held at [258] that the financial controller of Southern Star Entertainment Pty Limited could not waive privilege belonging to his employer unless authorised to do so. In the case of the University, that authority would have to come from a resolution of Council.

24 One way in which the University could have waived privilege without passing a resolution would have been through the conduct of an officer of the University with sufficient authority to bind the University: Tesco Supermarkets Ltd v Nattrass [1972] 8 AC 153. In that case the House of Lords held that a corporation could be liable for the acts of its officers who were sufficiently senior to be regarded as the “directing mind or will” of the company. An example of an officer being held to bind the company without the need to prove that the board had passed a resolution arose in Global Medical Imaging Management Limited (in liquidation) v Australian Mezzanine Investments Pty Limited & Anor [2003] NSWSC 430 (14 May 2003). Einstein J decided that the managing director of a company, was in a different position from that of a financial controller in the case of Eden Productions Pty Ltd v Southern Star Group Ltd (unreported, New South Wales Supreme Court, 17 December 2002). His Honour said at [18] to [20] that:

Mr Skrzynski is put up by the first defendant relevantly as a witness of fact in terms of being a representative of the first defendant in these proceedings. His particular position within AMIL seems to me, in the circumstances in which the cross-examination is taking place and presently continuing, to mean that, for the purposes of subsection 3 of section 122, the Court should infer on the evidence, that he was authorised to make the disclosure which he made. . . .

I reject the proposition that it is a necessary precondition to the Court drawing an inference that a person in Mr Skrzynski’s position had authority to make a disclosure of the type here in question, that the party claiming the benefit of section 122(2) prove the passing of a board resolution authorising the disclosure.

For those reasons, the objection to production on the basis of legal privilege is unsuccessful.

25 We return to the critical passage in the Tribunal’s decision where the Judicial Member said that he did not accept “the argument that the only mechanism by which such waiver could be effected is by a resolution of the Council.” We agree that there would be no need for a resolution if a person representing the ‘directing mind or will’ of the University has waived the privilege. However, the Chancellor is not in the same or a similar position to the managing director or a senior officer of a company. While the University is a body corporate, the Chancellor is merely a member of the Council who presides at meetings of the Council and is a member of every committee, board and faculty of the University.

26 We are satisfied that the Tribunal erred when it held that if the advice given to Professor Dutton was given with the approval of the Chancellor, that could in some circumstances be sufficient to waive the legal professional privilege that attaches to the document. There are no circumstances of which we are aware, other than the passing of a resolution by Council, that would be sufficient to give the Chancellor authority to waive privilege. Having found that the Tribunal erred on this ground, it is not necessary to consider the University’s other grounds of appeal. Nevertheless, we deal with them briefly below.

Inadequate Reasons

27 The University’s alternate ground of appeal is that the Tribunal erred by failing to give adequate reasons for its finding that “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.” The University submitted that it was not enough to say that there may be other circumstances in which privilege could be waived. The Tribunal needed to identify what those circumstances could be.

28 Section 89(2) of the Administrative Decisions Tribunal Act 1997 imposes a duty on the Tribunal to give reasons, either orally or in writing. Apart from the situation where a party requests written reasons for an oral decision, the Tribunal is not obliged by statute to give "adequate" reasons. Even though there is no statutory requirement governing the adequacy of reasons provided under s 89(2), common law principles are relevant. At common law, there is now a judicial duty to give adequate reasons: see, for example, Pettitt v Dunkley [1971] 1 NSWLR 376; Public Service Board of New South Wales v Osmond (1986) 159 CLR 656; Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430. That duty appears to apply to tribunals as well as courts.

29 We agree that the Tribunal did not give adequate reasons for its conclusion. This led the Tribunal to the position where it was “unable to finally determine the issue”. The Tribunal was obliged to determine the issue of whether the privilege had been waived if it could do so on the evidence. Instead, it found that the University had not discharged the onus placed on it. That finding leads to the next ground of appeal.

Burden of proving the law

30 The University’s second ground of appeal was that the Tribunal proceeded on the basis that s 61 of the FOI Act imposes on the University a burden of proving what the law is. The ultimate burden of proving that legal professional privilege applies is on the University. Section 61 of the FOI Act states that:

61 Burden of proof

In any proceedings concerning a determination made under this Act by an agency or Minister, the burden of establishing that the determination is justified lies on the agency or Minister.

31 We understand that the University was referring to the fact that the Tribunal was “unable to finally determine” the circumstances in which privilege would be waived if the advice was disclosed with the Chancellor’s approval. The Tribunal went on to say that the University had not discharged its onus of proof. The University interpreted this comment to mean that the University had not discharged its onus of proving to the Tribunal that there was no mechanism (other than a resolution by Council) by which privilege could be waived. According to the University, no litigant has the burden of proving the law: Prentice v Cummins (No 5) 124 FCR 67 at 85 per Sackville J.

32 We agree with the University’s interpretation of this passage and its submission. The University does not have the burden of proving or establishing what the mechanisms are by which privilege could be waived. That is a matter for the Tribunal to determine after hearing submissions from both parties. By suggesting that the University had not discharged its onus because it had not provided sufficient information about the circumstances in which privilege could be waived, the Tribunal erred.

Extension to the merits

33 The Tribunal has a discretion to extend the appeal to the merits of the Tribunal’s decision even if no error of law has been identified: Lloyd v Veterinary Surgeons Investigating Committee [2005] NSWCA 456. In this case, errors of law have been identified and it is appropriate to extend the appeal to the merits of the Tribunal’s decision.

34 The 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 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.

Mr McGuirk’s contentions

36 Although Mr McGuirk did not appeal against the Tribunal’s decision, he raised several matters about which he is concerned. He said, for example that “officers of the University, specifically Ms Debbie Osborn, Ms Carol Kirby and Professor Mark Wainwright have not exercised the functions conferred or imposed upon them under the Act in good faith as they are required to do by the legislature of the State of New South Wales. The Tribunal has an obligation to report this conduct to the responsible Minister, the Minister for education, Ms Carmel Tebbutt, in accordance with s 58 of the FOI Act.” Mr McGuirk went on to submit that:

Further, the evidence suggests that the University Solicitor, Ms Carol Kirby, has colluded with certain members of the University Executive to subvert the processes of the Tribunal, and to frustrate the objects of the Freedom of Information Act. This by the University Solicitor constitutes contempt of the Tribunal, and her actions should be reported to the Supreme Court in accordance with s 131 of the Administrative Decisions Tribunal Act 1997.

37 The Appeal Panel’s powers when an appeal is made on a question of law is to determine the appeal: ADT Act, s 114. The allegations against Ms Debbie Osborn, Ms Carol Kirby and Professor Mark Wainwright do not arise in the appeal proceedings. Consequently we do not intend to deal with them.

Costs

38 Initially, Mr McGuirk sought an order for costs against the University for his expenses including consulting fees foregone. During the course of the hearing, he said that he was seeking costs in the sum of $1.00. Mr McGuirk has not identified the “special circumstances” which would justify an award of costs under s 88 of the ADT Act. His application for costs is refused.

Orders

1. Appeal allowed.

2. The Tribunal’s decision is set aside. In substitution for that decision, the Appeal Panel makes the following decision:

The decision of the University to refuse access to the legal advice prepared by Bret Walker SC and Andrew Ball is affirmed.
3. The respondent’s application for costs is refused.