Howell v Macquarie University [2005] NSWCA 456 | Case summary

REASONS FOR DECISION 1 In two decisions made in August and September 2005 the respondent (the University) refused to grant the appellant (Mrs Howell) access under the Freedom of Information Act 1989 (the Act) to a number of documents. Mrs Howell immediately applied to the Tribunal for review. By the time the case came on for hearing before the Tribunal in December 2005, 14 documents remained in dispute. The Tribunal delivered its decision in June 2006. It affirmed the University's decision in relation to 13 of the 14 documents. It referred the other document back to the University for reconsideration: see Howell v Macquarie University [2006] NSWADT 207. 2 Mrs Howell appealed against the decision to this Appeal Panel. We heard the appeal in November 2006. There are two notices of appeal (069043, 069044), reflecting the fact that there were two underlying requests. two agency determinations and two review applications (053277, 053320). The appeals were heard together. The appeals are made under ss 112 and 113 of the Administrative Decisions Tribunal Act 1997 (ADT Act). An appeal may be made as of right on a 'question of law'. Leave may be granted by the Appeal Panel to extend the appeal to the merits. 3 The notices of appeal each contain several grounds alleging errors of law, and seek leave for extension of the appeal to the merits. It is not necessary to demonstrate a material error of law as a pre-condition for the grant of leave to extend an appeal to the merits: Lloyd v Veterinary Surgeons Investigating Committee [2005] NSWCA 456. Whether an appeal should be extended to the merits will depend on general considerations of justice, balancing the matters raised by the appellant against the importance of not lightly reopening or upsetting decisions. 4 In the case of the 13 documents, the Tribunal upheld the University's decision that they were protected by legal professional privilege: see Act, s 25(1)(a), and cl 10 of Schedule 1. 5 In the case of the other document, the Tribunal found that the exemption relied upon (cl 9 of Schedule 1, internal working document) was not made out by the University. While the document fitted the general description of an internal working document found in that provision, the University had not satisfied the Tribunal that it was 'contrary to the public interest' to disclose the document. However, in examining this issue, the Tribunal considered that two other exemptions (cl 10, legal professional privilege and cl 13, breach of confidence) might have been open to be claimed in connection with the key item of information which the University sought to protect (the identity of an informer). It also accepted Mrs Howell's contention that the University had wrongly interpreted her FOI request, and had wrongly limited its consideration to the first paragraph of the document. The Tribunal considered that the appropriate course, therefore, was to refer this matter back to the University for reconsideration. It did not indicate expressly which of the two powers of remittal given to the Tribunal by the ADT Act (see ss 63 and 65) were being exercised. 6 No action has been taken by the University in respect of the referral, pending the outcome of this appeal. 7 Background: It is desirable to explain the context in which this dispute arises. In Mrs Howell's submission, these matters are relevant to any public interest calculus. They are also relevant to her case that the legal professional privilege was not applicable to several of the 13 documents because they were created for an improper purpose. 8 As at November 2004 she was the deputy principal of the School for Children with Special Learning Needs in the Macquarie University Special Education Centre (MUSEC). On or about 24 November 2004 the mother of a nine-year old boy who attended the school complained of mistreatment by three staff members at MUSEC, one of them being Mrs Howell. Mrs Howell was notified of the complaint. After considering advice from the University Solicitor, Ms Jennifer O'Brien, the University appointed an external investigator (Mr Geoff Kelly of Lee Kelly & Associates) to undertake an investigation. 9 From the outset Mrs Howell indicated that she would make a written statement in relation to the complaint but would not submit to an oral interview. In that regard, she had taken advice from her husband, Mr Philip Howell, a solicitor. 10 On 24 December 2004, in accordance with s 25C(1)(a) of the Ombudsman Act 1974 the University reported the complaint to the Ombudsman. The Ombudsman decided on 3 February 2005, as permitted by s 25E, to monitor the investigation as it raised a 'reportable allegation' and it was 'in the public interest' to do so. 11 Mrs Howell continued to object to submitting to a face-to-face interview. She had conveyed her opinion to the other members of staff complained against. The opinion of the investigator and senior officers of the University, including Ms O'Brien, was that staff should make themselves available for oral interview if requested by the investigator. Conflict over this issue, and other concerns that the staff members had about the investigation, gave rise to a meeting on 17 February 2005 attended by the Head of Department (Dr A Rice), the head of the School (Professor Weldhall), the Director of Human Resources (Mr Tim Sprague), the University Solicitor (Ms O'Brien), Mrs Howell and the other two staff members. The full minutes of the meeting were released to Mrs Howell and are in evidence. 12 Early in March 2005 Mrs Howell formally complained to the Ombudsman over the way the University was conducting the investigation; and requested the Ombudsman to take it over. The Ombudsman declined to take over the investigation, by letter received 16 March 2005. 13 On that day, the University Solicitor, Ms O'Brien briefed Professor Elizabeth More, Vice-Chancellor (Administration), over her concerns in relation to what she saw as Mrs Howell's non-co-operation with the investigation. (This is the document that is described as 'Document 1' in the Tribunal's reasons, though it is important to note that only paragraph 1 of this document was considered by the University to fall within the scope of the relevant request.) 14 Accepting advice received from Ms O'Brien, Prof More wrote to Dr Rice, asking him to issue a disciplinary direction to Mrs Howell, and providing a text. Dr Rice did so by letter dated 30 March 2005. We will not set out the whole of this letter. The FOI requests were triggered by the second and third paragraphs: 'Information has been referred to me to the effect that you have communicated to a former MUSEC colleague your views about her duties in relation to the Ombudsman's delegated investigation of the complaint by [the mother of the boy]. In particular, she has stated, in effect, that you advised her that she did not have to participate in a face to face interview with the University appointed investigator if she did not wish to do so and that she could proceed by way of written submissions. If this is the case, it amounts to a breach of the previous requests by the University through the University Solicitor and the Director of Human Resources that you not speak to others who may have information concerning the matters complained about.' This text was followed by the giving of a 'clear direction that you not speak to any other person who may have information relevant to the investigation of the complaint'. The direction continued: 'For the avoidance of doubt, you are directed not to discuss the factual matters giving rise to the complaint or the manner in which the University has determined that the investigation should be undertaken with any such person except with the express consent of the University.' The letter continued, advising that disregard of the direction would be treated as falling within the definition of employee misconduct found in the enterprise agreement between staff and the University and risk formal disciplinary action. 15 On 27 April 2005 Mrs Howell lodged a formal grievance under the enterprise agreement. The grievance referred to her concerns that this direction was unfair and improper, in particular, the absence of particulars as to her alleged breach of the previous requests, including the precise details of those previous requests. She objected to the suggestion, found in her view in the direction, and in subsequent material, that she may have engaged in action that might have, to use her word, 'contaminated' the evidence. Her position is that her view about what was appropriate was widely known and that, in any event, at the meeting of 17 February, Ms O'Brien, in particular, had accepted that a staff member could not be compelled to attend a face-to-face interview. The grievance included a number of specific complaints relating to the role and conduct of Ms O'Brien. 16 In July 2005 the University received Mr Kelly's report. The report found that the allegation was not established against any of the three staff members. The report was transmitted to the Ombudsman. By letter dated 18 August 2005, after considering the investigator's report, the Ombudsman accepted the investigator's conclusion that in the instance of one allegation relating to the appellant the event alleged did not occur, and in the instance of the other allegation the event alleged did occur but it was not 'reportable conduct' as the action was reasonable. 17 In all these matters, Mrs Howell has been assisted and advised by Mr Howell. He has acted on her behalf in dealing with the University, and in particular with Ms O'Brien, on many of the matters that have arisen. He prepared the written submissions filed by Mrs Howell before both the Tribunal at first instance and before the Appeal Panel. In one of those submissions he describes an increasing level of tension and conflict from January 2005 onwards between Mrs Howell and the University. The second notice of appeal refers to the fact that on 12 March 2006 Mrs Howell commenced defamation proceedings against the University Solicitor, Ms O'Brien, on the basis of the statements she made about Mrs Howell in the documents sought in the requests. 18 The FOI Requests: On 3 June 2005 Mr Howell, on behalf of Mrs Howell, made the first of several requests under the Act for access to documents pertaining to the investigation and the subsequent disputes. The third of the requests was made in August 2005, and it is linked to the first request. It is these two requests that were the subject of the review applications to the Tribunal (first request, matter 053277 filed 12 August 2005; third request, matter 053320 filed 19 September 2005) which now provide the basis for this appeal. 19 The University did not respond to the first request within the time prescribed by the Act (21 days). Though it had written to Mr Howell indicating that it needed more time to deal with the request, Mr Howell complained that it had not dealt with the request in time, and therefore a situation of 'deemed refusal' had arisen. He asked that the request proceed to internal review. The University agreed, and consequently the determination made on internal review by Professor Loxton, Deputy Vice-Chancellor (Academic), is the only substantive determination of the University, and the one which was the subject of the first review application. 20 The request known as the third request was ultimately the subject of an internal review determination by Mr Brian Spencer, Registrar and Vice-Principal. This request had its origins in dissatisfaction on the part of Mrs and Mr Howell over the adequacy of the response to the first request. 21 As the University's determination in respect of the third request covered several of the documents in the first request, the net result is that document 1 in the Tribunal's reasons for decision is a reference to document 1 as identified in the schedule accompanying the determination of the first request, and the other documents that remain in dispute, documents 2-6 and 8-15 are numbered as identified in the schedule accompanying the determination of the third request. 22 The Tribunal made the following Order: 'In accordance with these reasons the Tribunal therefore: (a) affirms the decisions of the Respondent with respect to the documents the subject of these reasons for decision; and (b) remits document #1 in the 053277 Schedule of Exempt Documents to the respondent for further consideration in accordance with paragraph 16 of these reasons.' 23 Paragraph (a), in effect, refers to the 13 documents numbered 2-6 and 8-15 in the relevant schedule. 24 We will begin with the appeal relating to the 13 documents where the Tribunal upheld the University's determination. Documents 2 to 6; 8 to 15 (Appeal No. 069044) 25 Clause 10 provides: ' 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.' 26 The Tribunal noted at para [21] that the 'relevant principles are quite clear and there is no issue that they are set out in the Respondent's submissions, the only issue being the application of these principles to the documents under review'. 27 As Gleeson CJ, Gaudron, Gummow and Hayne JJ stated in The Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 77 ALJR 40 at [9] (footnotes omitted): 'It is now well settled that legal professional privilege is a rule of substantive law which may be availed of by a person to resist the giving of information or the production of documents which would reveal communications between a client and his or her lawyer made for the dominant purpose of giving or obtaining legal advice or the provision of legal services, including representation in legal proceedings.' 28 Since 1999 the relevant test has been whether the communication or document was made for the 'dominant purpose', rather than the 'sole purpose' of rendering legal advice or the provision of legal services: Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49 at [35]-[61] (Gleeson CJ, Gaudron and Gummow JJ). 29 In FOI proceedings in this Tribunal the common law formulation is to be applied, and it is not necessary to have regard to the (arguably) different formulation of the principle found in the code applying to the operation of legal professional privilege in connection with legal proceedings in New South Wales (client legal privilege under the Evidence Act 1995): see Director General, Attorney General's Department v Cianfrano (GD) [2006] NSWADTAP 26 at [12]. Frequently in their decisions, the Tribunal has referred to Lockhart J's well-known categorisation of communications protected by legal professional privilege from Trade Practices Commission v Sterling (1979) 36 FLR 244, 245-6: '(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. (b) Any document prepared with a view to its being used as a communication of this class, although not in fact so used. (c) Communications between the various legal advisers of the client, for example between the solicitor and his partner or his city agent with a view to the client obtaining legal advice or assistance. (d) Notes, memoranda, minutes or other documents made by the client or officers of the client or the legal adviser of the client of communications which are themselves privileged, or containing a record of those communications, or relate to information sought by the client's legal adviser to enable him to advise the client or to conduct litigation on his behalf. (e) Communications and documents passing between the party's solicitor and a third party if they are made or prepared when litigation is anticipated or commenced, for the purposes of the litigation, with a view to obtaining advice as to it or evidence to be used in it or information which may result in the obtaining of such evidence. (f) Communications passing between the party and a third person (who is not the agent of the solicitor to receive the communication from the party) if they are made with reference to litigation either anticipated or commenced, and at the request or suggestion of the party's solicitor; or, even without any such request or suggestion, they are made for the purpose of being put before the solicitor with the object of obtaining his advice or enabling him to prosecute or defend an action. (g) Knowledge, information or belief of the client derived from privileged communications made to him by his solicitor or his agent.' 30 The documents fell into three types: - communication to an officer of the agency from the University Solicitor, Ms O'Brien (documents 2, 3, 4, 5, 6, 10, 11, 13, 14) - communication from an officer of the agency to the University Solicitor, Ms O'Brien (documents 8, 9, 12) - communication to a person who is undertaking an investigation for the agency from the University Solicitor, Ms O'Brien (document 15). 31 The approach adopted by the Tribunal in dealing with each of the documents (or groupings of documents) was to give a broad outline of its contents, to assess whether it fell within cl 10, and to consider the possibility of whether it might be practicable to edit the document to protect the exempt matter and otherwise release it: see [22]-[26] of its reasons. Grounds of Appeal 32 We now set out the grounds of appeal alleging errors of law: 1. The Tribunal erred in finding the relevant principles concerning the clause 10 exemption were as set out in the respondent's submission. The Tribunal should have found that the relevant principles also included those referred to in authorities cited in the appellant's submission of 20 December 2005 at paragraph 41, to the effect that the privilege does not apply where the solicitor client relationship has been abused in a manner involving dishonesty. 2. In determining the purpose for which the documents were created, the Tribunal failed to consider the appellant's principal submission, and the evidence on which it was based, that the documents had in fact been created for purposes other than those that gave rise to the privilege: 2.1 the Tribunal failed to consider that certain documents were prepared for the dominant purpose of the university discharging its statutory obligation to investigate. 2.2 The Tribunal failed to consider that the documents dated after 28 February 2005 [documents 9, 10, 11, 12, 13, 14, 15] were prepared for the improper purpose of damaging the appellant. 3. In the alternative, the Tribunal failed to give reasons for rejecting the appellant's evidence and submissions on the purpose for which the documents were created, so completely ignoring the case for one party that justice has not been seen to be done. 4. The Tribunal erred in: 4.1 Finding that the most it could do was conduct an independent review of the documents (Reasons: para. 27); and 4.2 Determining the review in accordance with this finding by merely examining the documents themselves, and ignoring evidence of surrounding circumstances; which approach 4.3 is inconsistent with the approach taken in legal proceedings where privilege is claimed; and 4.4 Therefore reflects an erroneous construction of clause 10(1). 5. The Tribunal erred in determining the claim for the clause 10 exemption by reference to the litigation aspect of the privilege, thereby determining the review on a basis other than that on which the parties had conducted the case before the Tribunal, namely that the only advice aspect of the privilege was claimed. (Reasons: paras 22, 23) 33 The first ground concerns the following statement in the reasons for decision: '21. The relevant principles are quite clear and there is no issue that they are as set out in the Respondent's submissions, the only issue being the application of these principles to the documents under review.' 34 In our view, at this point the Tribunal is simply referring to the ordinary test for the determination of whether documents or communications are privileged, as enunciated in Esso and subsequent authorities. There was no need for it to refer to the exceptions to the privilege at this point of its analysis. It is clear that it proceeded by applying the usual test to the documents. There is a specific criticism of its application of the usual test at ground 2.1 where it is said that the Tribunal failed to consider an alternative 'dominant purpose' (that of the University discharging its statutory obligation to investigate). It was reasonably open to the Tribunal to find on the material before it that the dominant purpose (at least) for the making of the communications by the University Solicitor, Ms O'Brien, was to render 'legal advice'. There is no doubt that some of that advice concerned the University's responsibilities in respect of its statutory obligations so far as the investigation of child maltreatment complaints is concerned. There is nothing exceptional in an organisation seeking advice from a lawyer about implications of that kind. 35 Ground 5 is critical of the reasoning in relation to document 2 (see reasons [22]) and documents 3-6, 10, 11 and 13 (reasons [23]) in so far as they assert that the documents are protected by litigation privilege, as distinct from advice privilege. 36 The difference between the 'advice' limb of the privilege and the 'litigation' limb can be one of practical importance. As Young J noted in the AWB Limited v Honourable Terence Rhoderic Hudson Cole (No 5) [2006] FCA 1234 (the AWB case): '144 A traditional formulation of the second limb of legal professional privilege is that it applies to confidential communications passing between a client, the client's legal adviser and third parties for the dominant purpose of use in or in relation to litigation which is either pending or in contemplation: see FCT v Pratt Holdings at 284 [39] per Kenny J. This formulation was referred to, with apparent approval, by Finn J in the Full Court in Pratt Holdings at 360 [6]: see also Grant v Downs at 677 per Barwick CJ. 145 The crucial difference between the first and second limbs of the privilege is that the second limb is not limited to communications whose dominant purpose is the giving or obtaining of legal advice. Communications lacking this advice element, such as communications between a solicitor and a prospective expert witness, will attract privilege where they occur in a litigation context: see JD Heydon, Cross on Evidence, vol 1, Butterworths, 1996, par 25235; SB McNicol, Law of Privilege, Law Book Company, 1992, at p 48; and SL Phipson, Law of Evidence, 16th edn, Sweet & Maxwell, 2005, at pars 23-81 and 23-82.' 37 At para [23] in the case of documents 3 to 6 inclusive and 10, 11 and 13, the Tribunal did refer in addition to litigation privilege. In both places, the Tribunal describes the communications as containing advice in respect of the investigation, and having a 'nexus' to 'anticipated litigation'. The latter appears to be a reference to litigation privilege. What litigation the Tribunal had in mind is not spelt out, but we think the Tribunal had in mind the University's concern that the complainant might bring anti-discrimination proceedings. Ms O'Brien was concerned that this might have been implied by the reference in the complaint to 'human rights breaches' and based on other information she had. 38 If the Tribunal was relying, in part, on litigation privilege, we agree with Mrs Howell's submission that litigation privilege did not arise for consideration. The position had not been reached of 'anticipated litigation' in the narrow sense in which this term is used when a claim to 'litigation' privilege is being assessed: there had not, for example, been any formal complaint lodged with an antidiscrimination body or a formal statement made that such a course was to be pursued. (In any event it may be that 'litigation' privilege is never apt to those contexts as they are proceedings conducted by administrative tribunals as distinct from courts and arguably are not adversarial in character: see generally, Ingot Capital Investments Pty Limited & Ors v Macquarie Equity Capital Markets Limited & Ors [2006] NSWSC 530 (Bergin J).) 39 Nonetheless in our view, it is clear that the Tribunal was primarily assessing the documents by reference to the principles governing legal advice privilege. Any error in relation to litigation privilege was not determinative. 40 The next set of criticisms, found principally in Ground 4, relates to the process of assessment followed by the Tribunal. As Mr Howell has emphasised in his submissions, it is usual in discovery proceedings in the ordinary courts for the affidavit as to discovery to be provided by a solicitor and for the solicitor to make any claims for legal professional privilege. It does not follow that it is an error for the Tribunal not to receive evidence from the agency's solicitor when assessing a claim to legal professional privilege in FOI proceedings. 41 What is sufficient evidence for the purpose of assessing whether documents fall within the sphere of legal professional privilege will vary from case to case. While it is not uncommon in FOI cases in the Tribunal for a solicitor to provide evidence in respect of documents said to be privileged, it is not essential. In this instance the Tribunal had evidence from the client, as distinct from the lawyer, as to the privileged nature of the documents. The Tribunal also undertook its own inspection of the documents. It had evidence of the lawyer's admission to practice and of her role as in-house solicitor. These were, we think, sufficient steps to determine whether the documents were privileged. 42 In any event in our view, the question of whether the documents in-principle fell within the bounds of legal professional privilege was not an area of serious contest between the parties. Mrs Howell's main point was that the 'improper purpose' exception applied to the documents that post-dated 28 February 2005 (i.e. documents 9-15) and therefore those documents lost their privileged status. 43 The balance of the grounds of appeal are concerned with this point. There are three criticisms: one, the Tribunal failed to make findings in relation to the applicant's improper purpose case; the reasons for decision failed to address the submissions on this point; and consequently, justice has not be seen to be done. 44 As we understand the case put for Mrs Howell on this point, it is said that Ms O'Brien, the University Solicitor, was actuated in giving her advice (after 28 February 2005), and in procuring the issuance of the disciplinary direction by an animus she held towards Mrs Howell over the position that Mrs Howell had taken over she or other staff members submitting to face-to-face interviews. 45 The University has not disputed that, in an appropriate case, otherwise-privileged communications may lose that protection for reasons such as waiver or improper purpose. Its submission is that there is an evidentiary onus lying on the party raising such a case. 46 Young J in the Explanatory Statement in the AWB case gave the following explanation of the exception to legal professional privilege which these submissions seek to invoke: 'Communications between a lawyer and client which facilitate a crime or fraud are not protected by legal professional privilege. This principle is often referred to as the 'fraud exception' to legal professional privilege, but this does not capture its full reach. The principle encompasses a wide species of fraud, criminal activity or actions taken for illegal or improper purposes and extends to 'trickery' and 'shams'. As the fraud exception is based on public policy grounds, it is sufficiently flexible to capture a range of situations where the protection of confidential communications between lawyer and client would be contrary to the public interest.' 47 As his Honour noted at para [215] of his reasons: 'It is important to bear in mind that the fraud exception is based on public policy grounds. The principle is sufficiently flexible to capture a range of situations where the protection of confidential communications between lawyer and client would be contrary to the public interest … This aspect of the principle is reflected in the statement that '[t]he privilege takes flight if the relationship between lawyer and client is abused': Clark v United States (1933) 289 US 1 at 15 … .' 48 In the AWB case Young J dealt at paras [217] and ff with the question of what is required by way of evidence and the evidentiary standard when an allegation of the present kind is made. The Court derived the following principles from the leading authorities. - There must be more than a mere assertion or allegation of fraud - There must be reasonable grounds for believing that the relevant communication was for an improper purpose - There must be some prima facie evidence that the allegation of improper purpose has some foundation in fact - It is not necessary to prove an improper purpose on the balance of probabilities - It must also be established that the communication which is the subject of the claim for privilege was made in furtherance of, or as a step preparatory to, the commission of the fraud or wrongdoing. 49 These principles are, in our view, equally applicable FOI proceedings. The review applicant must make out a case, at least to a point where the Tribunal is satisfied that there is a prima facie case. The agency should be called upon to respond at that point. 50 In this case Mrs Howell did not put on any evidence, though there had been extensive reference to 'improper purpose' in the submissions prepared and filed by Mr Howell before the hearing (see submissions filed 24 October 2005) and again in the submissions filed after the hearing (on 10 March 2006). 51 The hearing was set down for three days, 6, 7 and 20 (morning) December 2005. Mrs Howell was represented by Ms Sant of counsel on 6 and 7 December. Most of the hearing time on 6 December 2005 was taken up with a preliminary objection by the University to Judicial Member Wilson continuing to sit. Mr Wilson dismissed the objection. The substantive hearing then commenced. The University relied on affidavit evidence from the makers of the two determinations, Professor Loxton and Mr Spencer. Professor Loxton was produced and cross-examined by Ms Sant. At the conclusion of Professor Loxton's evidence on 7 December 2005, the following exchange occurred between the Tribunal (Judicial Member Wilson) and Ms Sant (transcript p.55:48 ff): 'WILSON: Are there any other further evidentiary matters we've got to deal with, witnesses, documents? SANT: There's no further witnesses I don't think from either side. There is the matter of the notice to produce.' 52 There was then a discussion between Mr Wilson and Ms Sant over her client's notice to the University to produce the University's report to the Ombudsman arising from the investigation of the complaint against Mrs Howell. This was followed by discussion of whether it was appropriate for the Tribunal to consider evidence relating to whether Mrs Howell had complied with the disciplinary direction when assessing the 'public interest' question. The hearing on 20 December dealt with ancillary matters, in particular the University's response to the notice to produce. The parties advised that they agreed that the notice had been met by the University producing the letter from the Ombudsman dated 18 August 2005 (marked C12) and the Investigator's Report, 28 June 2005 and letter to Ombudsman, 13 July 2005 (C13). They were marked confidential to the Tribunal. Ms Allars and Mr Howell made oral submissions. (Ms Sant did not appear on the 20th.) The Tribunal gave directions allowing the parties to file additional written submissions. The University did so on 2 March 2006. Mrs Howell filed submissions on 10 March 2006. 53 Mrs Howell had the opportunity to put on evidence. It is clear from the passage from the transcript that her counsel proceeded with the case on the evidence as submitted at that point. Mr Howell submits that the Tribunal erred in not ensuring that all deponents were made available for cross-examination. We can find nothing in the Tribunal files or the transcript of the proceedings to suggest that any request of this kind was made. The matter was not raised by counsel when she had the opportunity. 54 In the AWB case the evidentiary threshold was met. AWB was under investigation by a Royal Commission. It had invoked legal professional privilege to refuse production of numerous internal documents to the Royal Commission. The company sought a declaration from the Court upholding its refusal as lawful. The Commonwealth appeared as contradictor. Following negotiation between the parties, the Court was called on to examine approximately 900 documents. AWB relied on affidavit evidence in support of its claims for privilege. The Commonwealth relied in reply on the evidence already heard in the Royal Commission. There was no question that as to some documents the Royal Commission evidence contained material which credibly raised the possibility of the fraud/improper purpose exception applying. As to 10 of the documents the Court found on the relevant standard that they were deprived of privilege on the basis that they were brought into existence in furtherance of a fraud or other impropriety. The Court found that numerous other documents lost their privileged status by waiver. 55 Mrs Howell objects that there is no reference whatsoever to her 'improper purpose' submission in the reasons of the Tribunal. 56 The Tribunal has a duty to give adequate reasons. The leading cases in New South Wales include Soulemezis v Dudley (1987) 10 NSWLR 247; Mifsud v Campbell (1991) 21 NSWLR 725; and Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430. (For recent application of these principles see Shellharbour City Council v Rhiannon Rigby [2006] NSWCA 308; Whalan v Kogarah Municipal Council [2007] NSWCA 5.) As to the duty of statutory tribunals, see further Deane J in Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41 at 68. See also s 89(5) of the ADT Act, which provides when an oral decision is given and written reasons are then requested: 'the written reasons are to set out the following: (a) the findings on material questions of fact, referring to the evidence or other material on which those findings were based, (b) the Tribunal's understanding of the applicable law, (c) the reasoning processes that lead the Tribunal to the conclusions it made.' 57 On the other hand, a court or tribunal is not required in its reasons for decision to address slavishly every point raised by a party. The object of the giving of reasons for decision is to reveal the logic and reasoning processes that led the court or tribunal to its final orders. The reasons may choose, therefore, to disregard irrelevant matter and deal summarily with minor relevant points. The key claims, the key evidence and any key legal arguments should be the focus of the reasons. In Beale , Meagher JA referred to the balance that needs to be struck between sufficient reasons and over-elaborate reasons, commenting at 444: 'In the end, the balancing act which needs to be undertaken in considering the sufficiency of a statement of reasons involves the adoption of, at the least, a minimum standard which places the parties in a position to understand why the decision was made sufficiently to allow them to exercise any right of appeal.' 58 This was a case where there were 'mere assertions', to use words found in the leading authorities. The Tribunal should however, we think, have provided some response to the 'improper purpose' case put by Mrs Howell, explaining that it was unsustainable in the absence of evidence raising a prima facie case. 59 The Tribunal, had it given reasons, would, inevitably we consider, have dismissed the case. There was nothing, in our view, on the face of the documents that could lead one to think that the University or Ms O'Brien were engaged in some form of misconduct. Therefore there was no circumstance which might, had the Tribunal addressed the issue, have possibly produced a different result (see Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145-6 and Kioa v West (1985) 159 CLR 550 at 633). 60 The application for leave to extend to the merits is refused so far as it seeks to have reopened the conclusions that documents 2-7 and 9-14 are exempt documents on the basis of legal professional privilege. 61 In our view, the position is not as clear in relation to document 15. This document is an email communication between the University solicitor and the investigator dated 23 March 2005. We doubt whether advice privilege can be raised in relation to that document. It may be that the Tribunal considered this document to be privileged on the basis of litigation privilege. Our provisional view is that neither basis is applicable. In our final orders we have reserved this document for further consideration. If it is found, on reconsideration, to be exempt, we will not reopen the improper purpose claim. We deal with another aspect of the question of leave at the end of these reasons. Document 1, Paragraph 1 (Appeal No 069043) 62 The first request had four numbered parts. It is the University's response to item 1 of the request that remains in contention. Item 1 read: '1. In relation to the letter sent by Alan Rice, Head of the Australian Centre for Educational Studies, to Sally Howell on 30th March 2005 entitled 'Re Investigation under Ombudsman Act 1974': (a) All documents or part of documents containing 'information' mentioned in paragraph 2 of the letter as having been referred to him; (b) All documents or parts of documents which refer to Sally Howell by name and which were considered by Dr Rice prior to him issuing the letter, other than those referred to in point (a); and (c) All documents or parts of documents evidencing the 'previous requests' referred to in paragraph 3 of the letter.' 63 The reference in item 1(a) above is to the following paragraph in the letter of 30 March: 'Information has been referred to me to the effect that you have communicated to a former MUSEC colleague your views about her duties in relation to the Ombudsman's delegated investigation of the complaint by [the mother of the boy]. In particular, she has stated, in effect, that you advised her that she did not have to participate in a face to face interview with the University appointed investigator if she did not wish to do so and that she could proceed by way of written submissions.' 64 The University treated item 1(a) as being restricted to 'part' of the memorandum of advice from Ms O'Brien to Prof More dated 16 March 2005, i.e. only paragraph 1. It refused to release that paragraph. In the documents provided in response to Mrs Howell's request, however, it provided a blacked out document that matched all the pages of this document including paragraph 1. 65 One of Mrs Howell's objections was that her request had been unduly narrowly construed, and the University should have treated the whole of document 1 as falling within the scope of the request. The Tribunal agreed, and considered that greater account should have been taken of the totality of the request made under item 1. The Tribunal was of the view that the whole document fell within the scope of the request, as Mrs Howell had asserted. The reasoning is found at paras [17] and [18] of the Tribunal's decision. The Tribunal's conclusions have not been contested by the University. 66 The difficulty with the reasons, and which is a source of a number of the grounds of appeal, is that in the previous paragraphs, [9]-[16], the Tribunal appeared to discuss the document as a whole, not simply paragraph 1. 67 The Tribunal was satisfied (see para [9]) that the document fell within the requirement of cl 9(1)(a), i.e.: '(1) A document is an exempt document if it contains matter the disclosure of which: (a) would disclose: (i) any opinion, advice or recommendation that has been obtained, prepared or recorded, or (ii) any consultation or deliberation that has taken place, in the course of, or for the purpose of, the decision-making functions of the Government, a Minister or an agency. (b) would, on balance, be contrary to the public interest. (2) A document is not an exempt document by virtue of this clause if it merely consists of: (a) matter that appears in an agency's policy document, or (b) factual or statistical material.' 68 It was not satisfied that the University had made out its public interest case: see para [13]. 69 The Tribunal went on to examine another possible ground for not disclosing the document. It continued: '14 However, one further matter raised by the evidence should be considered, albeit briefly. Disclosure of document #1 could possibly disclose a source of information in circumstances where an inference is open that the information was given in confidence. Although the point was not taken in relation to the public interest requirement in clause 9(1)(b), it could be argued that an adverse effect would be that future information would not be forthcoming as sources would not believe that the information they supplied would be kept confidential or that they would remain anonymous. As the Respondent has in fact disclosed to the Applicant much of the information that is recorded in document #1, it is apparent that the real concern here would be the identity of the source of the information. 15 On the evidence the Tribunal is not satisfied that the information was provided in circumstances of confidence nor that the source wished to remain anonymous. Exhibits 9(a) and (b) concern this aspect. However, the precise circumstances of the communication are not in evidence and it is not possible to draw an inference on the evidence that, more likely than not, the communication was confidential as to source and content. Alternative inferences are equally open. Therefore the adverse consequences that could flow as posited upon the basis that the communication was confidential have not been established to the Tribunal's satisfaction. Consequently, this does not affect the determination stated above and therefore refusal of access cannot be justified by reliance upon the clause 9 exemption in the Schedule to the Act.' 70 The Tribunal then identified two further possible grounds for claiming exemption (cll 10, 13): '16 In relation to document #1 the Respondent has not relied upon the clause 13 exemption concerning the provision of confidential information. From this the Tribunal could conclude, by way of concession, that the information was not in fact provided in confidence. However, this would not be a wise conclusion given that the evidence has dealt with the point to some degree (exhibits C (9) (a) and (b)) and that there may be other reasons, such as inadvertence, why the point was not taken. The preferable course, in the interests of both parties, would be to remit the document for further consideration by the Respondent so that it may be dealt with in accordance with the Tribunal's determination set forth above in relation to the clause 9 exemption and the consideration that clause 13 of schedule I may have application. In addition, the Respondent should be directed to consider the application of the clause 10 exemption to parts of the first paragraph of this document.' 71 Clause 10 is the legal professional privilege exemption. Clause 13 is the breach of confidence exemption: '13 Documents containing confidential material A document is an exempt document: (a) if it contains matter the disclosure of which would found an action for breach of confidence, or (b) if it contains matter the disclosure of which: (i) would otherwise disclose information obtained in confidence, and (ii) could reasonably be expected to prejudice the future supply of such information to the Government or to an agency, and (iii) would, on balance, be contrary to the public interest.' Grounds of Appeal 72 Grounds 1, 2, 3, 4 and 5 : Ground 1 is that the Tribunal erred in failing to set aside the decision in respect of document 1 given its rejection of the University's case relying on cl 9. Ground 2 is that the Tribunal failed to comply with s 63(3)(d) of the ADT Act in that it should have set aside the University's decision before remitting it. Ground 3 is that the Tribunal failed to determine the case in relation to document 1 impartially but instead actively assisted the respondent to withhold the documents from the appellant by suggesting an alternate basis on which the documents could be withheld, and remitting the respondent back for further consideration. Ground 4 is that, in exercising its discretion to remit, the Tribunal wrongly took into account irrelevant considerations, namely that it may have been appropriate to claim the confidentiality exemption, a matter on which there was no evidence; and that the confidentiality exemption may not have been claimed due to inadvertence. Ground 5 is that the Tribunal wrongly determined the review of document 1 on the basis that the cl 9 exemption was claimed for the whole document, thereby determining the review on a basis other than that on which the parties had conducted the case before the Tribunal, namely that the exemption was claimed only for paragraph 1 of document 1. 73 These grounds are related. 74 Document Under Notice: There was no dispute between the parties at the appeal hearing that the document before the Tribunal was only the first paragraph of document 1. But, as previously noted, the text of its reasons, from [9] to [16], speak of a document as if it was the whole of document 1. Ms Allars, for the University, submitted to us that the approach taken by the Tribunal needed to be understood in light of the dispute that had occurred over the University's interpretation of the request. The Tribunal had concluded that the whole of the document had been sought by the request. It rejected the internal working documents claim, but noted that elsewhere in dealing with information relating to the identity of a source, the University had raised the breach of confidence exemption (cl 13). As the University had not assessed the whole of the document, it decided the best course was to refer the matter back to the agency. 75 Extending the Scope of the Inquiry: Whether it is unfair depends, we believe, on whether the Tribunal was entitled to extend its deliberations beyond the boundaries apparently set by the case as argued by the parties. Mrs Howell submits that the boundaries of a case are set by the submissions and contentions of the parties. 76 In this instance the University only relied on the internal working documents exemption (cl 9); consequently, in Mrs Howell's submission, that is the case that the Tribunal must assess. Mr Howell submitted that FOI proceedings were a form of adversarial proceedings; with the corollary that the Tribunal is bound to adjudicate only on the case advanced by the parties. There is recent support for that proposition in a case decided since we heard argument: see University of New South Wales v McGuirk [2006] NSWSC 1362 at [61] (the UNSW case), where Nicholas J observes in relation to FOI proceedings in this Tribunal: 'the proceedings were adversarial and it was up to the parties to define the issues to be left for the Tribunal's decision.' The particular issue in that case was whether the factual parameters of a case had been defined by the parties in a statement of agreed facts, and the relevance in that regard of any later agreed concessions. We agree with Nicholas J's observations in so far as they go to the setting of factual parameters. 77 In our view, the Tribunal in its merits review jurisdiction, including FOI, remains engaged in a form of administrative inquiry, albeit one that must accord with judicial standards of fairness. The ultimate duty of the Tribunal under s 63 is to make the 'correct and preferable decision'. It is well established that the Tribunal is not confined by the reasons for determination of the administrator whose decision is under review, or any changed reasons on which the administrator relies at hearing: see generally Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409. While there may be an agreed factual substratum, the Tribunal still must make the 'correct and preferable' decision. 78 In the Commonwealth FOI case, Re Bartlett and Department of Prime Minister and Cabinet (1987) 12 ALD 659 the agency refused to release a document relying on the Commonwealth Act's internal working documents exemption (Commonwealth Act, s 36). The exemption is in similar terms to cl 9 of the NSW Act. In contradistinction to the NSW Act, the Commonwealth Act at s 36(3) permits the agency head to issue a 'conclusive certificate' in respect of a document that falls into the general category of an internal working document expressing the opinion that it would be contrary to the public interest to release the document. If such a certificate is issued, the Tribunal is limited in its consideration of the public interest issue to determining only whether 'reasonable grounds' exist for the certificate. If there is a reasonable ground, the Tribunal must uphold the claim for exemption. 79 Such a certificate was issued in Re Bartlett. The author of the certificate noted that the documents being sought related to deliberations that had taken place in the time of the Fraser Coalition Government which had now been succeeded by the Hawke Labor Government. It expressed the view that conventions relating to change of government made it imperative that the internal deliberative processes of a previous government not be exposed. The Tribunal rejected this proposition and found, consequently, that where the claim for exemption for a document depended only on that proposition a 'reasonable ground' had not been demonstrated. The Tribunal (Todd DP) continued at [20]: 'The Tribunal is not absolved from considering the exempt quality of the documents in question by its finding of lack of reasonable grounds for a s 36 claim. If a document is clearly exempt under a particular section of the FOI Act it should be found to be so: Austin v Deputy Secretary, Attorney-General's Department (1986) 10 ALD 169; Re Carver and Department of Prime Minister and Cabinet (1987) 12 ALD 447. I say clearly, for while there is no call for the Tribunal to be astute to seek out grounds of exemption where the agency has not made an appropriate claim and supported it with evidence, if there has been a reference to the point in the s 36 material, and/or if supporting evidence has been given in relation thereto, a document which is clearly exempt when judged against the criterion of a section such as s 45 (breach of confidence) should be found to be exempt. In this particular case it first seemed to me as I went through the documents that I would have to give attention on this footing to the provisions of s 40(1)(e) (industrial relations of the Commonwealth); and of s 45 (breach of confidence). As it happens, I have found no call for application of these provisions. The same principle as referred to in Austin's case however requires the Tribunal to consider whether, notwithstanding that it does not consider that the grounds, or some of them, stated in the certificate are supportable as reasonable grounds, another or other reasonable grounds exist: see Re Rae and Department and Department of the Prime Minister and Cabinet [(1986) 12 ALD 589] …'. 80 The objects of the FOI Act seek to promote the maximum access to information; and if the agency fails to make its case out on the exemptions it chooses to rely upon that should normally be the end of the matter. In our view it nonetheless remains open to the Tribunal to identify another basis for exemption, though this is a most unusual step to take in FOI proceedings. Like Re Bartlett the Tribunal considered that the question of the confidentiality of the source and of the source's information had been raised in the submissions of the University, though it had not made a claim for exemption on that ground. Accordingly the Tribunal considered that it should be given a chance to revisit the matter. 81 Natural Justice: However, we agree with the submissions of Mr Howell that Mrs Howell came to the Tribunal to meet a particular case presented by the University (reliance on the internal working documents exemption), and that the Tribunal, by first raising the possibility of cll 10 and 13 providing other heads of exemption in its reasons, denied her natural justice, being an opportunity to be heard on these issues prior to formulating its order of remittal. 82 Remittal Powers: The Tribunal did not clearly indicate which of the two powers to remit provided by the ADT Act was being exercised, when it said: 'The preferable course, in the interests of both parties, would be to remit the document for further consideration by the Respondent so that it may be dealt with in accordance with the Tribunal's determination set forth above in relation to the clause 9 exemption and the consideration that clause 13 of schedule 1 may have application.' 83 The ADT Act at s 63(3) provides that, apart from affirming, varying or setting aside a reviewable decision, the Tribunal may decide: '(d) to set aside the reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.' 84 Section 65 deals with the power of the Tribunal while seized of the matter, and before any final determination: ' 65 Power to remit matters to administrator for further consideration (1) At any stage of proceedings to determine an application for a review of a reviewable decision, the Tribunal may remit the decision to the administrator who made it for reconsideration of the decision by the administrator. (2) If a decision is so remitted to an administrator, the administrator may reconsider the decision and may: (a) affirm the decision, or (b) vary the decision, or (c) set aside the decision and make a new decision in substitution for the decision set aside. (3) If the administrator varies the decision: (a) the application is taken to be an application for review of the decision as varied, and (b) the person who made the application may either: (i) proceed with the application for review of the decision as varied, or (ii) withdraw the application. (4) If the administrator sets the decision aside and makes a new decision in substitution for the decision set aside: (a) the application is taken to be an application for review of the new decision, and (b) the person who made the application may either: (i) proceed with the application for review of the new decision, or (ii) withdraw the application.' 85 The difference between the two powers is of some practical importance. If the s 65 power is being exercised, the effect of sub-s (3) and (4) is that the new decision becomes the reviewable decision that the Tribunal is to address henceforth in determining the application for review. On the other hand if the power that is exercised is the s 63 one, then the Tribunal's determination finally disposes of the application. If the administrator makes a decision, on reconsideration, that maintains the previous decision to any degree, then the applicant has to start again, and initiate a fresh process of internal review and application for review by the Tribunal. 86 In this instance both parties were of the view that the Tribunal had intended to exercise the s 63 power. We agree that this is the more likely conclusion, having regard to the Tribunal's use of the words 'in accordance with the Tribunal's determination'. 87 The object of Mrs Howell's submissions is to obtain an outright 'set aside' order. That would produce the result that the disputed document (i.e. paragraph one of document 1) would be released to her. 88 This would not give effect, as we see it, to the intention of the Tribunal's order. Whatever power the Tribunal was purporting to exercise, clearly the Tribunal intended to give the University a further opportunity to consider the document. To accede to Mrs Howell's argument might be thought to be unfair to the University in depriving it of the opportunity that the Tribunal had intended to give it, in circumstances where there were heads of power available to it enabling it to make such an order. 89 Conclusion: In our view, the Tribunal's decision as it relates to the document it had under notice should be set aside. The most appropriate order, in our view, is that there be a remittal, but under s 65 of the ADT Act. The University would be directed to make a decision on the whole of the document. This is not a result, we appreciate, of the kind Mrs Howell seeks. It would be open to the University in the course of its reconsideration to rely on additional heads of exemption, including those signalled to it by the Tribunal. The benefit of this approach is that it leaves the application for review on foot, and any new decision that falls short of full release of the document would be immediately reviewable by the Tribunal (or the Appeal Panel if it retains the matter). If that were to occur, then, as noted later in these reasons, the Tribunal would be able to look at the case not only in terms of any exemptions relied upon, but also by reference to the residual discretion given to the agency under s 25(1)(a) of the FOI Act to release a document even though it has exempt status. 90 We will deal briefly with the remaining grounds of appeal. 91 Ground 6: Ground 6 is that the Tribunal, in its cl 9 inquiry, failed to determine facts essential to its determination of the question whether the release of the document was contrary to the public interest, specifically by 'failing to determine whether the statements in the document about the appellant were erroneous, as the appellant's uncontradicted evidence asserted'; and by failing to determine 'whether the 'direction' issued in accordance with the instruction contained in the document was unlawful, as the appellant submitted. These grounds of appeal are misconceived. The Tribunal did not have go to this far in considering the public interest issue. It remains a matter for the Tribunal to judge whether it was appropriate for it to get involved in a satellite factual inquiry. In this case there was no need for the Tribunal to go that far, as it was satisfied that the public interest case was not made out for other reasons. Mrs Howell succeeded on this point, without there being any need to delve further into the conduct of the University. As to the second matter, the lawfulness or unlawfulness of the disciplinary direction, that too was a matter that would have involved the Tribunal in a satellite inquiry, and again it was not necessary for it to give any consideration to heading in that direction, given that it was satisfied that the public interest case was not made out for other reasons. 92 Grounds 7, 8: Grounds 7 and 8 relate to the decision of the Tribunal not to assess one of the grounds of exemption claimed for documents 4, 5, 6 and 7, as they were numbered in the schedule accompanying the first request. These are documents 8, 9 and 12 in the second request. Ground 7 is that the Tribunal erred in failing to determine whether any of the matter in the documents was information contained in confidence. Ground 8 is that the Tribunal erred in failing to determine whether the exemption had been correctly claimed. 93 At para [19] the Tribunal said: '19 The remaining documents in issue in this proceeding are documents #4, 5, 6 and 7 in the relevant Schedule of Exempt Documents. These documents are claimed to be exempt from disclosure as they fall within clause 13 of the Schedule to the Act. As these same documents also are subject to an exemption claim under clause 10 of the Schedule in the other proceedings (see documents # 8, 9 and 12 discussed below), and as that claim should be upheld for the reasons set forth below, there is no need to consider the application of clause 13 to them. The Tribunal notes that the question whether parts of these documents fall outside the scope of the FOI request, a point initially taken, is no longer an issue.' 94 The approach the Tribunal took was open to it. There is no obligation on a review tribunal to address all the reasons given by the administrator, if it is been persuaded by one or some of them of the rightness of the administrator's conclusion. In this instance the Tribunal saw these documents as being exempt on the ground of legal professional privilege. 95 Grounds 9, 10: Ground 9, in effect, disputes the statement of the Tribunal in the final sentence of para [19]. The claim is that the Tribunal erred in failing to determine whether parts of the documents withheld by the respondent on the basis that they had not been requested were in fact within the scope of the documents sought in the FOI request. Ground 10 goes to the same issue. It is expressed as an alternative ground to ground 9. The claim is that in affirming the respondent's decision on these documents, the Tribunal adopted the University's 'narrow interpretation' of the request in relation to documents other than document 1, 'despite rejecting that interpretation in relation to document 1; and 'effectively endorsed an approach to freedom of information applications which legitimises the deletion of all context from the matter released, so as to restrict the information conveyed by that matter, thus breaching the objects of the Freedom of Information Act'. In our view, there is nothing in the closing submissions made at hearing, or the subsequent submissions to suggest that any dispute was on foot as to the University's interpretation of the request as it related to documents other than document 1. 96 Ground 11: Ground 11 is that the Tribunal erred in failing to deal with, or alternatively failing to give reasons for not accepting, the appellant's submissions that the contravention of the objects of the Act implicit in the respondent's narrow interpretation of the request was intentional; and the respondent had not performed a genuine internal review; and this affected the weight which could be placed on any statement made by the University about the exemptions claimed. This is another version of the improper purpose submission. For the same reasons as we gave in dealing with that argument as it arose in respect of legal professional privilege, we do not consider that there was any probative material placed in evidence which could have justified the Tribunal in making findings of the kind sought by this ground of appeal. 97 Ground 12: Ground 12 concerns various statements of fact made by the Tribunal in its reasons. Mrs Howell's claim is that the Tribunal misunderstood the background circumstances in various ways. The criticisms set out at ground of appeal 12.1 and 12.2 refer to aspects of the following paragraph, para [3] of the reasons: '3 The Respondent then commenced an internal investigation into the incident and it appointed an independent investigator to gather the evidence and report. During the course of this investigation two developments occurred. The first was that the Applicant lodged a grievance with the Respondent as to the conduct of the investigation. Secondly, the NSW Ombudsman intervened in the investigation and commenced to conduct an investigation into the incident pursuant to its statutory powers. In these circumstances the need for the Respondent to seek legal advice from time to time in relation to the incident, and the investigations under way, is obvious.' 98 This is simply a background paragraph which as the reasons ultimately develop is relevant to why the University sought legal advice from the University Solicitor, Ms O'Brien. Accepting for the moment that the appellant is right in her assertions that they reflect to some extent a misunderstanding of certain aspects of the history of the matter, nothing ultimately turns on those misunderstandings. The appellant's claim is that the grievance was not principally about the conduct of the investigation and that the Tribunal misunderstood its 'temporal relationship' with the disputed documents. The appellant also disputes that the Ombudsman intervened in the investigation and commenced to conduct an investigation pursuant to his statutory powers. We agree with the appellant that the correct position is that the Ombudsman was notified by the University of the complaint, as the University considered it was required to do under the child protection provisions of the Ombudsman Act. The Ombudsman in due course accepted the notification and elected to 'monitor' the investigation. Nothing in our view turns on the misstatement of this matter by the Tribunal. 99 The next criticism relates to para [13] of the reasons. The point of criticism relates to the sentence we have italicised in the following passage: '13 … The only evidence in point is that of Professor Loxton where he deposes as to the need to conduct deliberations at "the senior officer" level in an uninhibited fashion so as to ensure the best possible environment for the effective, impartial and independent conduct of the ongoing investigation (at paragraph 8 of his non-confidential statement, exhibit C1). He then deposes to the fact that the deliberations and processes have not yet completed, including the Applicant's grievance. However, during cross-examination he accepted that there had been closure of the investigation into the incident and that that matter had reached finality by 19 July 2005 (transcript 07.12.05 at page 28 ff). This left the Applicant's grievance as the only possible outstanding matter. This has been left in abeyance for some time but, no doubt, there is still some unresolved issues remaining that could possibly be re-activated. However, this evidence does not establish a factual basis for an argument that the release of document #1 would adversely affect the Respondent's ability to administer its affairs properly and efficiently, including taking the applicant's grievance to finality. The Tribunal is not satisfied that release of this document would have any adverse consequences upon the Respondent's administrative processes. …' 100 The criticism is that the italicised sentence contains a 'finding' for which there was no evidence. The sentence is obscurely expressed. It is not purporting to make a finding. It is in the nature of a comment. Even if it is inaccurate, it does not provide a basis for an error of law argument. 101 The next criticisms relate to the following italicised parts of paras [23] and [24]: '23 Documents # 3 to 6 inclusive and # 10, 11 and 13 are also communications to an officer of the Respondent by its legal advisor. All communications expressly relate to the investigation into the incident and provide advice by the author of a legal nature concerning the Respondent's position and the steps that ought to be taken upon the basis of that advice. In addition, the evidence clearly shows that these documents have a nexus with the litigation that was anticipated as it would be quite unrealistic to find that the Respondent's legal advisor viewed the investigation and the anticipated litigation as being independent of each other . Clause 10 of the Schedule to the Act therefore has application. It would not be practicable to edit these documents satisfactorily. 24 Documents # 8, 9 and 12 consist of a communication by an officer to the Respondent's legal advisor, two notes made by the legal officer and a communication by her. They narrate, and record, a development arising in the course of the investigation. The last-mentioned communication is a proposal by the legal officer as to what ought to be done in the circumstances. Clearly the legal officer's advice was being sought, and in fact was rendered, in her professional capacity. The information was supplied to, and then investigated by, the legal officer with a view to providing advice. Clause 10 of the Schedule to the Act therefore has application. These documents are brief and therefore editing is not practically possible.' 102 The criticism of the passage in para [23] is that this 'finding' 'failed to have regard to the statutory obligations imposed on the respondent'. The criticism of the passage in para [24] is that this was a 'finding' 'accepted as untested assertions by a person the respondent failed to call as a witness, so her evidence could not be tested'. 103 The passage at para [23] appears in the part of the reasons which dealt with the question of whether certain documents were exempt on the ground of legal professional privilege. The Tribunal at [23] and [24] was simply giving a broad picture of its thinking in relation to whether the documents were privileged. In FOI cases the Tribunal will often only give a generalised account of its thinking, as it must, obviously, not descend to a level of detail that might disclose exempt matter. The word 'investigated' perhaps does not best capture what the legal officer (the University Solicitor, Ms O'Brien) was called upon to do when she received the information to which the reasons allude. But in our view the Tribunal's thinking is clearly enough presented. 104 As to the criticism of para [24] this goes to a matter which we have already addressed in dealing with the grounds of appeal on the legal professional privilege aspect. Mr Howell is firmly of the view that Ms O'Brien should have been presented to give evidence. The University was not bound to produce Ms O'Brien. Extension to Merits 105 Mrs Howell has in her submissions referred to the long time this dispute has been before the Tribunal, and asks that, in the event that her appeal is upheld to any extent, that the appeal be extended to the merits. While it is normally to be preferred that a matter be remitted, in this instance our view is that it would be more practical and timely for the Appeal Panel to grant leave to extend to the merits for the limited purposes of dealing with documents 1 and 15, and with the residual discretion submissions. The residual discretion submissions will go to all exempt documents. 106 In the orders which follow we direct the University first to reconsider documents 1 and 15, before the Appeal Panel resumes dealing with the matter. Residual Discretion 107 Section 25(1) provides (emphasis added): '(1) An agency may refuse access to a document: (a) if it is an exempt document.' 108 The Tribunal's general review powers conferred by the ADT Act apply in its FOI review jurisdiction, save to the extent that they have been excluded by the FOI Act: as to which see FOI Act, s 53(4) and (5). Section 63 of the ADT Act is not excluded. Sections 63(1) and (2) of the ADT Act provide: ' 63 Determination of review by Tribunal (1) In determining an application for a review of a reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following: (a) any relevant factual material, (b) any applicable written or unwritten law. (2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant enactment on the administrator who made the decision.' 109 In the UNSW case the Supreme Court (Nicholas J) held, contrary to the then prevailing view in the Tribunal, that, having regard in particular to s 63(2) of the ADT Act, the Tribunal did in FOI matters have an overriding discretion, like that of the agency under s 25(1), to disclose documents even though they had been found to be exempt. As it happens, in the course of its reasons for decision in this case, in its assessment of document 14 the Tribunal alludes to the overriding discretion at [25] (our emphasis): '25 Document # 14 is a communication by the Respondent's legal advisor to another officer. Paragraph 2 of that communication notes legal advice formerly rendered to the Respondent but paragraphs 1 and 3 do no more than narrate factual developments in the course of the investigation then under way. Whilst this document was essentially to inform the recipient of the factual progress of steps being undertaken, on behalf of the Respondent, in the course of the investigation, it has a clear nexus with the ongoing assistance, of a legal nature, that the legal advisor was rendering to the Respondent (following Trade Practices Commissioner v Sterling (1979) 36 FLR 244; Nederlandse Reassurantie Groep Holding NV v Bacon & Woodrow [1995] 1 All ER 976) . Consequently, the document comes within clause 10 of Schedule I to the Act. Editing of the exempt matter is not reasonably practicable. The Tribunal notes that the Respondent could possibly see fit to release this document to the Applicant under the residual discretion that it has pursuant to the legislation, given the knowledge that the Applicant stands possessed of. However, this is a matter for the Respondent alone and not the Tribunal (see N v Director-General, Attorney-General's Department (No. 4) [2003] NSWADT 122 ).' 110 The Supreme Court decision was delivered on 8 December 2006, several months after the Tribunal's decision, and 5 weeks after the appeal was argued before us. 111 In these circumstances, as a matter of fairness to the applicant, we should make an order which allows the issue of the residual discretion to be agitated by Mrs Howell in relation to the documents exempt by virtue of legal professional privilege. We would encourage the agency to consider whether it is prepared to release any of the exempt documents (i.e. documents 2-6 and 8-14) in the exercise of the residual discretion during the 21 day period allowed for in the following orders. Orders 1. As to appeal no 069043 Appeal allowed. Order (b) is set aside. Leave to extend to merits granted, in accordance with the following directions. The application is remitted to the respondent agency pursuant to s 65 of the ADT Act for reconsideration, such reconsideration to be undertaken within 21 days. The whole of the document known as document 1 is to be the subject of reconsideration. The result of that reconsideration is to be reported to the Appeal Panel. If the University decides that document 1 is exempt in whole or in part, the Appeal Panel will give directions for the further conduct of the matter. 2. As to appeal no 069044 Appeal allowed in part. Order (a) is varied. The Tribunal's decision that the documents are exempt documents is affirmed in respect of documents 2-6 and 8-14. Leave to extend to merits granted, in accordance with the following directions. Document 15 is remitted to the respondent agency for reconsideration, such reconsideration to be undertaken within 21 days. The result of that reconsideration is to be reported to the Appeal Panel. The Appeal Panel will then give directions for the further conduct of the matter.

Howell v Macquarie University

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Judgment (10 paragraphs)

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Cases Cited (15)

Cited By (20)