"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."
34 In respect of documents in the subpoena 1.3 "Memorandum from Jennifer O'Brien to Professor E More and Professor D Yerbury" and document 1.4 "Memorandum from Jennifer O'Brien to Professor E More", Mr Wilson said at paragraph 23 of his decision:
"Documents (including 1.3 and 1.4) 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."
35 The remaining document in the subpoena 1.6 "memorandum from Jennifer O'Brien to Professor E More, cc Professor D Yerbury, Mr T Sprague, Ms S Litchfield was dealt with by Mr Wilson at paragraph 25 of his decision:
"Document (1.6) 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 [1975] 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 Ngo v Director-General, Attorney-General's Department (No.4) [2003] NSW ADT 122)."
36 The Plaintiff, through Mr Howell, appealed against Mr Wilson's decision to an Appeal Panel pursuant to s112 of the ADT Act. The Notices of Appeal in both matter 53277 and matter 53320 challenged Mr Wilson's findings on a number of points of law and sought to extend the appeals to the merits of the case.
37 The Appeal Panel dealt with the appeals in 2 stages. On 1 March 2007 it affirmed the decision of Mr Wilson, in respect of the documents listed in the University subpoena and on 25 September 2007 declined to release any documents in the exercise of a residual discretion. In the course of its reasons the Appeal Panel said something about the background of the matter which not only explains the issues before it but highlights the nub of the Plaintiff's cause of action in these proceedings:
"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.
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.
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.
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.
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.
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-cooperation with the investigation. (This document 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.)
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.
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 request, including the precise details of those previous requests. She objected to the suggestion, found 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.
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.
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."
38 The Appeal Panel recited the grounds of appeal including the ground that Mr Wilson had:
"failed to consider that certain documents were prepared for the dominant purpose of the university discharging its statutory obligation to investigate.