Wilmshurst v Vice-Chancellor, Macquarie University

[2002] NSWADT 231

CITATION:	Wilmshurst -v- Vice-Chancellor, Macquarie University [2002] NSWADT 231
DIVISION:	General Division
PARTIES:	APPLICANT Anthony Peter Wilmshurst RESPONDENT Vice Chancellor, Macquarie University
FILE NUMBER:	013313
HEARING DATES:	08/05/2002
SUBMISSIONS CLOSED:	05/08/2002
DATE OF DECISION:	11/13/2002
BEFORE:	Britton A - Judicial Member
APPLICATION:	access to documents - legal professional privilege - Freedom of Information Act - access to documents - legal professional privilege
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Evidence Act 1995 Freedom of Information Act 1989
CASES CITED:	Wilmshurst v Vice Chancellor, Macquarie University [2002] NSWADT 196 Esso Australia Resources Ltd v Commissioner of Taxation [1999] HCA 67 Grant v Downs (1976) 135 CLR 674 Charteris v. General Manager, Leichhardt Municipal Council (GD) [2001] NSWADTAP 12 Waterford v Commonwealth of Australia (1987) 163 CLR 54 Alfred Crompton Amusement Machines Limited v Customs and Excise Commissioners (No. 2) (1972) 2 QB 102 Ritz Hotel Limited v Charles of the Ritz (No. 4) (1987) 14 NSWLR 100 Australian Hospital Care Pty Limited v Duggan (No. 2) (1999) VSC 131 Attorney General of the Northern Territory v Kearney (1985) 158 CLR 599 Seanar Holdings v Kupe Group (1995) 2 NZLR 274 Crescent Farm v Stirling Offices (1972) Ch 553 at 565 Freeman v Health Insurance Commission (1997) 78 FCR 91
REPRESENTATION:	APPLICANT In person RESPONDENT S Rares, SC and I Catanzariti, barristers
ORDERS:	1. The University's decision not to disclose the documents in dispute is affirmed.

1 This is an application brought under the Freedom of Information Act 1989 (NSW) (“the Act”) to review a decision by the Vice Chancellor, Macquarie University. The Applicant, Anthony Wilmshurst, seeks documents created by the University and its legal advisers in response to an earlier application for documents made by him in June 2001. That application is now before the Tribunal (File number 013314) and an interlocutory decision was handed down on 4 October 2002: Wilmshurst v Vice Chancellor, Macquarie University [2002] NSWADT 196. For convenience, I will refer to the June 2001 application as the “first application”.

2 The issue for determination is whether the Vice Chancellor, in refusing access to the documents sought by Mr Wilmshurst, made the correct and preferable decision having regard to any relevant factual material and any written or unwritten law: s 63(1) of the Administrative Decisions Tribunal Act 1997 (NSW) (“the Tribunal Act”).

Background

3 By letter dated 13 June 2001 Mr Wilmshurst made an application to the Vice Chancellor under the Act for various documents:

“I am making an application under the above Act in relation to records held by the University.
For ease of reference to enable you to identify the documents I seek I have attached a copy of a letter, dated 13 July 2001, from the University Solicitor to me.
As you can see the letter relates to another freedom of information request I currently have before the University but the letter from the University Solicitor obviously means records have been generated as a result of my request and it is these records my current request relates to.
I seek copies of all records relating to the letter to me from the University Solicitor. Quite clearly as the original request I made would have involved you identifying holders of relevant records and circulating details of the records sought, including my reference to the letter of 15 November 1999, other records would have come into existence relating to the issue of how I came into possession of the November letter, which has led to the University Solicitor's letter. No doubt the University Solicitor has generated her own file notes and memos. It is all of these records I seek in this application.
Please note this application is a separate one to my other request [your reference F01 01/62] so I do not seek any of the documents covered by that request.”

4 On 31 July 2001 the Vice Chancellor determined the Application and released four of the documents requested (“the original decision”). Exemption was claimed for seven documents under Clause 10 of Schedule 1 of the Act. These documents are listed as items 1-7 and are set out in a Schedule to the University’s original decision. I adopt that description of the documents in this decision.

5 Item 1 is an email from Jennifer O'Brien, University Solicitor, to the University’s external lawyers. Item 7 is a memorandum from Jennifer O'Brien, University Solicitor, to Mr Brian Spencer, Registrar and Vice-Principal of the University. Items 3 to 6 inclusive are draft letters attached to Item 7. Item 2 is a copy of Item 7. There is a handwritten note on Item 2 from Brian Spencer, Registrar and Vice-Principal of the Universityto Ms O'Brien, University Solicitor.

6 On 17 August 2001, Mr Wilmshurst applied for internal review of the original decision. The University failed to determine that application and accordingly under s 34(6) of the Act, the University was taken to have made a determination refusing access to those documents for which exemption was claimed.

7 On 11 October 2001, Mr Wilmshurst lodged a complaint with the Ombudsman and sought an investigation into the conduct of the University in relation to the determination of his application pursuant to Section 52 of the Act. On 24 October 2001, the Ombudsman informed the Applicant of his decision to refuse to investigate the conduct complained of by the Applicant.

8 On 20 December 2001, Mr Wilmshurst applied to the Administrative Decisions Tribunal (the Tribunal) for a review of the University’s original decision.

Scheme of the Act

9 The objects of the Act as set out in s 5, are to extend, as far as possible, the rights of the public:

(a) to obtain access to information held by the Government; and

(b) to ensure that records held by the Government concerning the personal affairs of members of the public are not incomplete, incorrect out of date or misleading.

10 Section 16 of the Act gives individuals a legally enforceable right to be given access to an agency’s documents in accordance with the Act.

11 The University contends that the documents that are the subject of Mr Wilmshurst’s application fall within Clause 10 of Schedule 1 of the Act and as such are exempt. Clause 10 provides:

(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.

12 An agency may refuse access to a document if it is an “exempt document”: s 25(1)(a) of the Act. Section 6(1) of the Act defines an "exempt document" to include a document referred to in Schedule 1.

13 The agency has the burden of proving that its determination is justified: s 61 of the Act.

Submissions

14 Mr Wilmshurst contends that the University is not entitled to rely on the legal professional privilege exemption as the documents in question were created for the purpose of frustrating or avoiding his first FOI application. Mr Wilmshurst argues, “ As neither the original application nor the Internal Review application were responded to, the factual record clearly shows a deliberate refusal to comply with the FOIA and the legal advice sought was part of that course of conduct that enabled the University to take the decision to refuse to comply, at least until 15 February 2002. On the balance of probabilities there is prima facie evidence of the advice being sought to avoid the FOIA.”

15 As such, contends Mr Wilmshurst, the privilege that would otherwise attach to these documents has been displaced.

16 Mr Wilmshurst submits that if the Tribunal is not satisfied that privilege has been displaced, the circumstances surrounding his application warrant an exercise of the Tribunal’s discretion to release the documents. In exercising its discretion under s 25(1) Mr Wilmshurst urges the Tribunal to take account of the following: first, Mr Wilmshurst asserts that the Tribunal, occupies a position analogous to that of “university visitor”, and in exercising its powers under that role, release of the documents is appropriate; second, by the operation s 24 of the Macquarie University Act 1989 the University is prohibited from discriminating against a person on the basis of their “affiliations, views or beliefs”. Mr Wilmshurst asserts that the University’s conduct in respect of both his applications (Files no. 013313 and 013314) constitutes political discrimination; and finally, as a member of the body corporate of the University Mr Wilmshurst contends that he enjoys various rights that include access to the records of the University.

17 Mr Rares SC for the University submits that there is simply no proper foundation to base a finding that the documents in issue were created for any improper purpose. Nor do the circumstances of this case warrant an exercise of discretion to release an exempt document. The relevant decision maker needs to identify special or overriding circumstances before an exempt document is released. Mr Rares asserts that no such special or overriding circumstances exist.

18 The validity of a claim for legal professional privilege depends upon a factual inquiry as to the circumstances in which a document came into existence or was communicated. Mr Rares submits that once, as in this case, that inquiry is satisfied, there is no room for a countervailing public interest in disclosure.

Legal professional privilege

19 The principles of legal professional privilege are well known. The High Court in Esso Australia Resources Ltd v Commissioner of Taxation [1999] HCA 67 adopted the approach taken by Barwick CJ in Grant v Downs (1976) 135 CLR 674 at 677:

[a] document which was produced or brought into existence either with the dominant purpose of its author, or of the person or authority under whose direction, whether particular or general, it was produced or brought into existence, of using it or its contents in order to obtain legal advice or to conduct or aid in the conduct of litigation, at the time of its production in reasonable prospect, should be privileged and excluded from inspection.

20 Section 118 of the Evidence Act 1995 creates a privilege for confidential documents prepared for the dominant purpose of providing legal advice. As far as documents are concerned, it is the "contents of a confidential document (whether delivered or not) prepared by the client or a lawyer" which may be privileged. The Evidence Act defines a confidential document to be a document which, when it was prepared, was prepared in circumstances expressly or impliedly requiring either the person who prepared it or the recipient not to disclose its contents.

21 The Evidence Act largely overlaps the common law position on legal professional privilege. In Charteris v. General Manager, Leichhardt Municipal Council (GD) [2001] NSWADTAP 12 the Appeal Panel considered which approach should prevail for the purpose of the clause 10 of Schedule1. The Panel stated [at 21] that it did not favour an unduly mechanical approach. It was not convinced at this stage that different outcomes would flow from applying the Evidence Act tests or the common law test to documents in dispute in an FOI case.

Application of legal professional privilege to agencies

22 The High Court in Waterford v Commonwealth of Australia (1987) 163 CLR 54 concerned whether legal advice given by lawyers employed by a government agency were protected by legal professional privilege. The majority (at 62) said:

In our opinion. . . . there is no reason to place legal officers in government employment outside the bounds of legal professional privilege. The proper functioning of the legal system is facilitated by freedom of consultation between the client and the legal adviser. . . . To our minds it is clearly in the public interest that those in government who bear the responsibility of making decisions should have free and ready confidential access to their legal advisers. Whether in any particular case the relationship is such as to give rise to the privilege will be a question of fact. It must be a professional relationship, which secures to the advice an independent character notwithstanding the employment.

23 The same principles apply to salaried legal officers in government departments and salaried legal officers in private corporations. (See Alfred Crompton Amusement Machines Limited v Customs and Excise Commissioners (No. 2) (1972) 2 QB 102, cited with approval in Australia by the majority of the judges in Waterford v the Commonwealth; Ritz Hotel Limited v Charles of the Ritz (No. 4) (1987) 14 NSWLR 100; Australian Hospital Care Pty Limited v Duggan (No. 2) (1999) VSC 131.

24 In Australian Hospital Care Pty Limited v Duggan (No. 2) Gillard J made some observations about the issue of independence. Once the claim for legal professional privilege is made, there is a prima facie presumption that the legal adviser was acting independently at the relevant time. The party disputing the claim has the evidentiary burden of establishing facts to rebut the presumption.

Limitation on Scope of Privilege

25 The privilege that attaches to confidential communications is not absolute. It does not apply where a client seeks legal assistance in the commission of a crime or fraud. This “ exception” extends also to civil or equitable fraud, fraudulent breach of trust, improper or illegal act or civil offence, and deliberate abuse of statutory power: Attorney General of the Northern Territory v Kearney (1985) 158 CLR 599; Seanar Holdings v Kupe Group (1995) 2 NZLR 274; Crescent Farm v Stirling Offices (1972) Ch 553 at 565; Freeman v Health Insurance Commission (1997) 78 FCR 91 at 94.

26 In Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 Justice Brennan observed at 514:

“In determining whether a claim of legal professional privilege can be upheld, it is open to the party resisting the claim to show reasonable grounds for believing that the communication effected by the document for which legal professional privilege is claimed was made for some illegal or improper purpose, that is, some purpose that is contrary to the public interest.”

27 Gummow J described the scope of this limitation, (at 563-4) as follows:

"[T]he privilege does not attach to a communication made as part of a criminal or unlawful proceeding or in furtherance of an illegal object. The privilege would not attach where the plaintiff sought legal assistance as a step in, or preparatory to, the commission of a crime or fraud, even though the solicitor was unaware of the purpose of the communication at the time it was made [R v Bell; Ex parte Lees (1980)146 CLR 141 at 145]. The communication would still be ‘designed to facilitate future wrongdoing’ [Carter v Northmore Hale Davy & Leake (1995) 183 CLR 121 at 163]. In addition, the privilege does not protect communications made to further a deliberate abuse of statutory power and by that abuse to prevent others from exercising their rights under the law [Attorney-General (NT) v Kearney (1985) 158 CLR 500]. It follows that the operation of the privilege is not decided, as a general proposition, merely by a determination in the instant proceeding of whether facts amounting to a crime have been proved. The nature of the alleged impropriety and thus the issue of existence of the privilege will vary from case to case."

28 What degree of proof is necessary where it is alleged that a lawyer/client communication is tainted by fraud or impropriety? In Kearney Gibbs CJ at p 516 said:

“The privilege is of course not displaced by making a mere charge of crime or fraud or, as in the present case, a charge that powers have been exercised for an ulterior purpose. This was made clear in Bullivant v Attorney-General (Vict) [[1901] AC at pp. 201, 203, 205] and in O'Rourke v Darbishire ([1920] AC 581 at pp. 604, 613-614, 622-623, 632-633). As Viscount Finlay said in the latter case, ‘there must be something to give colour to the charge’. His Lordship continued:

‘The statement must be made in clear and definite terms, and there must further be some prima facie evidence that it has some foundation in fact ... The Court will exercise its discretion, not merely as to the terms in which the allegation is made, but also as to the surrounding circumstances, for the purpose of seeing whether the charge is made honestly and with sufficient probability of its truth to make it right to disallow the privilege of professional communications.”

Evidence

29 Brian Spencer, the University’s Registrar and Vice Principal gave evidence that he received a memo from Ms O’Brien the University’s in-house solicitor in June 2001 on which he made handwritten comments. He identified these as documents check. He denied that, in his dealings with Ms O’Brien, he at any time sought to hinder, frustrate or delay the processing of Mr Wilmshurst’s first FOI application. Nor, he claimed did anyone in the University communicate any such intent to him.

Findings and conclusions

30 It is common ground that all of the documents sought by Mr Wilmshurst contain confidential communications between the University and its lawyers created for the dominant purpose of giving and receiving legal advice. It is further agreed that a solicitor-client relationship existed between the University and its in-house solicitor, Ms O’Brien and, that at all relevant times, she acted independently notwithstanding her position as an employee of the University.

31 What is in issue is whether the privilege that would otherwise attach to these documents is displaced because, as alleged by Mr Wilmshurst, that advice was sought and given for the improper purpose of avoiding or delaying his first and subsequent FOI application.

32 As conceded by Mr Wilmshurst, there is no direct evidence to support this allegation. He argues however that such inference can be drawn from the circumstances surrounding his first application. I understand Mr Wilmshurst to contend that the timing of the request for legal advice is highly relevant: the University sought and received legal advice about his first FOI application within days after the date for determination mandated by the Act had passed.

33 He asserts that this, together with the fact that the first application was not determined within time, points to the improper purpose of those communications between the University and its lawyers.

34 The University’s failure to comply with Mr Wilmshurst’s first FOI application within time is troubling. Not only did the University fail to respond to that application within the statutory time limits but over six months passed before Mr Wilmshurst received any reply from the University. I do not agree with Mr Rare’s argument that the time limits imposed on agencies by the Act are directory only and any failure to meet those timelines is of little consequence as an applicant has access to redress though external review. The legislation imposes clear obligations on agencies to expeditiously determine FOI applications. Compliance with these time limits is not optional.

35 In my view, where an agency seeks legal advice for the primary purpose of avoiding its obligations under the Act this may constitute an improper purpose. However, in this case the evidence does not support a finding that any link existed between the University’s failure to determine Mr Wilmshurst’s first application within time and seeking and receiving legal advice in July 2001. The University communicated with its lawyers after the deadline for determining Mr Wilmshurst’s application had passed. However, it does not follow, as I understand Mr Wilmshurst to argue, that such advice was necessarily sought to thwart his application.

36 Mr Spencer denies that he sought advice for that purpose and was not cross-examined on that point. The documents in dispute were provided to the Tribunal on a confidential basis pursuant to s 55(b) of the Act. Having carefully examined this material I am of the view that on its face there is nothing to suggest that the advice was sought or received for any improper purpose.

37 It is not apparent from the material before me why the University failed to determine Mr Wilmshurst’s application within time. Even if it is accepted that the University acted improperly by not observing the statutory timetable, the evidence does not support a finding that the legal advice sought and received in July 2001 was sought and provided to assist it to avoid Mr Wilmshurst’s application.

38 It may be that Mr Wilmshurst holds the sincere belief that this was the case. However, mere speculation cannot support a finding that the communications between the University and its legal advisers were contaminated by improper purpose. To use the words of Viscount Finlay in O’Rourke v Darbishire, “…there must be something to give colour to the charge”. I have carefully considered all the evidence and am not satisfied that a prima facie case has been made out that the advice was sought and received to further an improper purpose.

39 Accordingly, I find that the documents sought fall within clause 10, Schedule 1 of the Act and are exempt.

Section 25(1) Discretion

40 I must now consider whether the circumstances of this case warrant release of the documents. Section 25(1) of the Act provides that the relevant decision maker may release an exempt document.

41 In Mangoplah Pastoral Co Pty Ltd v Great Southern Energy [1999] NSW ADT 93 the Tribunal held that it had power pursuant to s 63 of the Tribunal Act to review the decision of an agency to refuse access to an exempt document. That decision was followed in Rittau v Commissioner of Police [2000] NSWADT 186, Watkins v Chief Executive, Roads and Traffic Authority [2000] NSWADT 11 and other cases. I intend to adopt that approach in this decision.

42 The Act provides no express guidance as to what factors ought be taken into account in exercising this discretion. Mangoplah at [90] and [91] provides useful guidance:

The decision-maker must decide whether there is something about the information itself or the surrounding circumstances, which, bearing in mind the objects of the FOI Act and the rationale for any exemption which has been satisfied, persuades him or her that the exemption should not be claimed. The touchstone is whether withholding the document is "reasonably necessary for the proper administration of the Government" (s 5(2)(b)).

Framing the question in this way produces a need to locate special or overriding circumstances or interests before an exempt document is released, but only in the sense that some reason particular to the circumstances should be found for not claiming the exemption.

43 I deal in turn with the three factors, identified by Mr Wilmshurst, which he says justify an exercise of the discretion to release.

Right of Access by Members of Body Corporate

44 Mr Wilmshurst contends that as a graduate of the University, he is a member of its body corporate and as such, he enjoys certain benefits, advantages and privileges, one of which is the right to access the University’s records.

45 Mr Wilmshurst referred me to Claremont Petroleum NL v The Australian Gas Light Company 1 ACSR 504 and Humes Ltd v Unity APA Ltd 11 ASCR 641. I understand him to argue that these cases, which deal with the rights of shareholders to access company records, are authority for the proposition that there is a presumption in favour of release once membership of a body corporate has been established.

46 I do not agree. It is clear from the authorities that that a shareholder has no automatic right of access to company records. In Claremont, it was held that, at common law, an order for inspection of the books of a corporation by a shareholder is confined to cases where there is a definite and particular matter in dispute or a controversy in which the applicant has a special interest distinct from that of other shareholders of the corporation.

47 In Humes, Beach J (at 65) cited with the approval the following passage from American Jurisprudence (2nd edn) Vol 18A [author or editor not cited] para 383:

Even if a seemingly proper purpose for inspection is shown, the purpose cannot, to justify enforcement of a shareholder’s inspection right, be adverse to the best interests of the corporation. Thus, it has been recognised in a number of cases that the stockholder’s common law right of inspection of books will not be enforced where the applicant is acting from motives hostile or inimical to the corporation, or is seeking to do it injury by means of such inspection. The same rule applies under statutes which make the stockholder’s right to inspect books dependent upon the reasonableness of the motives and purposes of the stockholder or upon the inspection being for a proper purpose.

48 At common law therefore, a proper and sufficient reason or reasons must be demonstrated before a member or shareholder of a corporation will be allowed access to the corporation’s records. The reason for such restrictions on access to records is obvious. A person might obtain membership in a corporation for an ulterior purpose, such as to gain access to confidential commercial or personal information, or in some other way, to damage the corporation or in a fashion inimical to the best interests of the corporation. Unfettered access to such records, merely on the basis of membership of a corporation, would undermine or destroy commercial and personal privacy within corporations. It would also tend to undermine or destroy the principles of legal professional privilege, public interest immunity and other immutable features of our system of law.

49 I accept that Mr Wilmshurst is not intent on damaging the University or its best interest. But to allow a member of the university access to documents over which a proper claim for legal professional privilege or confidentiality, either pursuant to a public interest immunity claim or under the Act, has been made would, in an objective sense, almost certainly be contrary to the university’s best interests. This is regardless of the bona fides of the application for access. Such an application would therefore be scrutinised intensely and cautiously before being acceded to even at common law.

50 Even if Mr Wilmshurst had fulfilled the common law preconditions for access, a question I do not have to decide, the common law principles have been overridden by the Act which codifies access to documents held by NSW Government agencies, including the university. It is the Act that will govern the way in which this application is decided.

University Visitor

51 Mr Wilmshurst contends that the Tribunal is vested with the jurisdiction once enjoyed by the University Visitor, a person appointed by statute to deal with complaints about universities, by its members. The position of University Visitor was abolished in NSW in 1994 (except in relation to ceremonial functions - see s 13 of the Macquarie University Act). According to Mr Wilmshurst, the Government decided to abolish that position because it considered that complaints about Universities could be adequately dealt with by the courts and related bodies.

52 It does not follow in my view that the abolition of the position of University Visitor means that the Tribunal now has the jurisdiction (and powers) previously enjoyed by that office. If, as asserted by Mr Wilmshurst, the Government intended for bodies such as this Tribunal, to take over that role, such intention has not found its way into statute.

53 The Tribunal has no power to inquire at large into matters, which take its interest. The statute creating it, namely the Tribunal Act, circumscribes its jurisdiction. Chapter 3 of that Act provides that the Tribunal has such jurisdiction as is conferred by other Acts of Parliament. Section 53 (1) of the Act confers jurisdiction upon the Tribunal to review decisions by an agency made under s 24 or 43 of the Act. This Tribunal does not have jurisdiction to determine disputes at large between the University and its members. The parameters of the Tribunal’s jurisdiction and powers to determine disputes between the University and its graduates are set out in the Act.

54 Accordingly, I reject Mr Wilmshurst’s argument on this point.

Political discrimination

55 Section 24 of the Macquarie University Act provides that:

A person must not, because of his or her religious or political affiliations, views or beliefs, be denied admission as a student of the University or be ineligible to hold office in, to graduate from or to enjoy any benefit, advantage or privilege of the University.

56 Mr Wilmshurst asserts that he has been the victim of political discrimination by the University. It is clear from the chronology set out in Mr Wilmshurst’s written submissions [at 3.1] that there has been a long history of disputes between him and the University over FOI applications.

57 I understand Mr Wilmshurst to argue that given this history of strained relationships, the University has in effect sought to “punish him” by withholding the documents now requested.

58 On the scant evidence before me it is not possible to determine the veracity of these allegations. But in any event, in my view they appear to be largely irrelevant.

59 In determining whether to exercise discretion under s 25(1) the Tribunal steps into the shoes of the original decision maker and makes that decision afresh. The Tribunal as decision maker is required to determine for itself whether any special or countervailing circumstances exist to tip the scales in favour of disclosure of an exempt document. The University’s motivation in refusing to exercise its discretion to release these exempt documents, if indeed it turned its mind to this issue, is of marginal relevance to my decision.

60 In my view, a finding that the original decision maker was not favourably disposed to a particular applicant is not enough to constitute special circumstances. In any event, as stated the evidence before me does not support a finding that the University did unlawfully discriminate against Mr Wilmshurst as alleged.

Application of s 25(4) discretion

61 The majority in Esso set out the rationale underlying legal professional privilege [at 35] and observed that the privilege is a product of balancing competing public interests:

The privilege exists to serve the public interest in the administration of justice by encouraging full and frank disclosure by clients to their lawyers. In Waterford v the Commonwealth [(1987) 163 CLR 54 at 64-65. See also Carter v Northmore Hale Davy & Leake at 128, per Brennan J; at 134, per Deane J; at 147, per Toohey J; at 163 per McHugh J] Mason and Wilson JJ explained that legal professional privilege is itself the product of a balancing exercise between competing public interests and that, given the application of the privilege, no further balancing exercise is required. As Deane J expressed it in Baker v Campbell [at114], a person should be entitled to seek and obtain legal advice in the conduct of his or her affairs, and legal assistance in and for the purposes of the conduct of actual or anticipated litigation, without the apprehension of being prejudiced by subsequent disclosure of the communication. The obvious tension between this policy and the desirability, in the interest of justice, of obtaining the fullest possible access to the facts relevant to the issues in a case lies at the heart of the problem of the scope of the privilege. Where the privilege applies, it inhibits or prevents access to potentially relevant information. The party denied access might be an opposing litigant, a prosecutor, an accused in a criminal trial, or an investigation authority. For the law, in the interests of the administration of justice, to deny access to relevant information, involves a balancing of competing considerations."

62 I am not persuaded that any special or exceptional circumstances have been identified that warrant the exercise of discretion in favour of disclosure. Having found that the documents fall within clause 10 of Schedule 1 and in the absence of any special circumstances it is my view the University’s decision should stand.

63 For all these reasons I affirm the original decision.