University of New South Wales v McGuirk

The case between the University of New South Wales and Mr McGuirk was heard in the NSW Court of Appeal. The dispute centred around the University's refusal to allow Mr McGuirk access to legal advice given to the University in relation to his dismissal. Mr McGuirk sought leave to appeal against the NSW Civil and Administrative Tribunal's (NCAT) decision that the University did not need to provide him with the legal advice. The NCAT had ruled that the University's reasons for withholding the advice were adequate and that the burden of proving the law did not lie with the University.

The primary legal issues before the court were whether the Tribunal's reasons for affirming the University's decision to withhold the legal advice were adequate and whether the burden of proving the law lay with the University. The court also considered whether Mr McGuirk's application for leave to extend to the merits should be granted, and if the University had waived its privilege over the legal advice. The court needed to determine whether the Tribunal had erred in law in setting aside the appeal and refusing leave to extend to the merits.

The court found that the Tribunal had not provided adequate reasons for affirming the University's decision to withhold the legal advice. The court held that the Tribunal had failed to address the central issue of whether the University's reasons for withholding the advice were sufficient. The court also held that the burden of proving the law did not lie with the University, but that the University needed to provide sufficient reasons for its decision. The court found that the Tribunal had erred in refusing Mr McGuirk's application for leave to extend to the merits, and that the University had not waived its privilege over the legal advice. The court allowed the appeal, set aside the Tribunal's decision, and affirmed the University's decision to refuse access to the legal advice. The respondent's application for costs was refused.