Howell v O'Brien [2009] NSWSC 538 | Case summary

Howell v O'Brien [2009] NSWSC 538 | Case summary | Zoe

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1.6 Memorandum from Jennifer O'Brien to Professor E More cc Professor D Yerbury Mr T Sprague, Ms S Litchfield -23/03/05 - Document 14 2. A legible photocopy of each of the documents referred to in point 1 above" 3 Although Rule 33.4 UCPR expressly gives the Defendant standing to apply to set aside the subpoena, when the subpoena motion was called on for hearing, Mr Paul Dillon, solicitor for Macquarie University, appeared to support the motion, as his client was entitled to do, and he handed written submissions to the court. 4 The motions were filed in the context of a defamation action brought by the Plaintiff who, at relevant times, was employed by Macquarie University (the University) as a lecturer, and as Deputy Principal of the Macquarie University Special Education Centre School (the school). The Defendant was employed as the University's internal solicitor. 5 In November 2004, a parent (Ms Johnston) of a child at the school made a complaint to the University about the school's treatment of the child. Thereafter, there was an inquiry (which exonerated the Plaintiff of any wrongdoing) conducted by Mr Geoffrey Kelly (Mr Kelly) appointed by the University. The inquiry was monitored by the Ombudsman. It seems to be common ground that the alleged defamatory publications (of which there were 5), relied upon by the Plaintiff, occurred, temporally at least, while the Defendant was in the course of acting for the University in respect of the inquiry. PUBLICATIONS AND PLEADINGS 6 In order to put the proceedings in context it is necessary to say something briefly about the alleged defamatory publications and the pleadings. 7 In her Amended Statement of Claim filed in the District Court (the proceedings being subsequently transferred to this Court) on 13 October 2006 the Plaintiff as to the first publication, in paragraph 5, alleged that on 15 March 2005 the Defendant published to Mr Kelly matter set out in Part 1 of Annexure A. Part 1 of Annexure A stated: The matter referred to in paragraph 5 was the following; (a) "Sally Howell has been active in her contact with both Ann George and Kyle Pitt in urging them not to participate in any interview with you." (b) "Sally Howell has extended the same approach to witnesses including Felicity Graham and Brigid Riley". 8 In relation to this publication paragraph 5.10 of the Amended Statement of Claim stated: "5.1 The publication is that described in paragraph 1 of page 2 of the letter from the NSW Ombudsman dated 18 August 2005 to Professor Loxton. The plaintiff is unable to provide further particulars until Macquarie University releases documents to her under the Freedom of Information Act." 9 The paragraph in the Ombudman's letter to Professor Loxton referred to is in these terms: "I note that the investigator, Mr Kelly, commented about 'obstruction' of the investigation by Ms Howell (see file note dated 15 March 2005, attached behind tab 'file notes 3.32-3.38' to the folder) regarding the investigation into the allegation against Ms George. Mr Kelly said (at point 2) that 'Sally Howell has been active in her contact with both Ann George and Kyle Pitt in urging them not to participate in any interview'. Mr Kelly's file note then goes on - I expressed concern [to the university's solicitor, Ms O'Brien] that actions of this nature by Sally Howell constituted an obstruction to the investigation, compromised the independence and transparency of the investigation, and may constitute interference with the witnesses. Jenny indicated that Sally Howell had extended the same approach to the witnesses I have identified including Felicity Graham and Brigid O'Riley. I recommended that consideration be given to a direction to Sally Howell that she not communicate with witnesses and other persons subject of allegations in this matter, in the circumstances. We are concerned at this conduct by Ms Howell. It seems to have been aimed at frustrating the conduct of an investigation sanctioned by law." 10 By her defence the Defendant, inter alia, admitted conversations with Mr Kelly regarding the investigation but denied the publication recorded in his file note. She also denied the defamatory imputations alleged. 11 With regard to the second publication, alleged in paragraph 9, the Plaintiff claimed that on 16 March 2005, the Defendant published to Deputy Vice Chancellor Elizabeth More, the matter set out in Part 2 of Annexure A. Part 2 of Annexure A reads: "The matter referred to in paragraph 9 was the following: (a) "Mrs Howell has advised other members of staff that they need not participate in a face to face interview." 12 Paragraph 9.1 asserted: "9.1 the matter was published as part of a memorandum sent to Professor More. The plaintiff is unable to provide further particulars until Macquarie University releases documents to her under the Freedom of Information Act." 13 The whole of the memorandum to Professor More is one of the subjects of the University subpoena. 14 By her defence, the Defendant, inter alia claimed legal professional privilege in respect of the Second Publication and denied defamatory imputations. 15 The Third Publication was pleaded in paragraph 13. It asserted that on 16 March 2005 the Defendant published to Deputy Vice Chancellor More and the Vice Chancellor, Professor Yerbury the matter set out in Part 3 of Annexure A. Part 3 of the Annexure reads: "The matter referred to in paragraph 13 was the following: "3. Mrs Sally Howell, Deputy Principal of the School, has through her solicitor complained to the Ombudsman about the manner in which the University has conducted the investigation to date. Her allegations concern this office, Mr Kelly (our investigator) and Mr Sprague. 4. Mrs Howell has also requested that the Ombudsman direct the University to suspend its investigation of this matter and has asked the Ombudsman to investigate the University's handling of the matter pursuant to Section 25G(2) of the Act. ……. She has objected to almost every step undertaken by the University and she has directed her criticism at anyone whom she perceives to be involved in this matter on behalf of the University. …… Mrs Howell has approached at least one potential witness to seek to persuade her not to consent to a face to face interview with the investigator. She also maintained this position before other members of staff at a meeting on 17 February 2005, at which Mr Sprague was also present………….." 16 As with the Second Publication, the Plaintiff asserted that the matter was published as part of a memorandum of which the Plaintiff is unable to provide further particulars until the University releases documents to her. The memorandum is also included in the University Subpoena. 17 The Defendant, in respect of the Third Publication again, inter alia, pleaded legal professional privilege and denied defamatory implications. 18 As to the Fourth Publication, the Plaintiff pleaded: "17. On or about 21 March 2005 the defendant published to Deputy Vice Chancellor More and Dr Alan Rice the matter set out in Annexure A, Part 4 (referred to as "the Fourth Publication") Particulars of the Fourth Publication 17.1 The matter was a draft letter to the plaintiff by the university, sent to Professor More for her approval. Subsequently it was sent to Dr Alan rice for his signature." 19 Part 4 of Annexure A read: The matter referred to in paragraph 17 was:

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"21 March 2005 TO GO ON PROFESSOR ALAN RICE'S LETTERHEAD Dear Mrs Howell Re: INVESTIGATION UNDER OMBUDSMAN ACT 1974 I am writing to reaffirm that the University and its staff are covered by the Ombudsman Act 1974. As you know this is also referred to in the Macquarie University Enterprise Agreement 2003-2006 in Attachment 7 - Code of Conduct. The Agreement regulates your employment with the University. 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 Ms Johnston. 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. Thus I am now writing to you with a clear direction that you not speak to any other person who may have information relevant to the investigation of the complaint made by Ms K Johnston dated 24 November 2004. 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. I also must notify you that if you disregard my lawful direction outlined above, that your conduct will fall within the definition of misconduct in 13.03.03 of the Enterprise Agreement. If conduct within that definition occurs you will be placing yourself in a situation which may lead to the University using the Disciplinary Procedures in 13.03 of the Agreement. A copy of this letter is being sent to Human Resources for placement on your personal file as a record of my direction to you. Yours sincerely Professor Rice." 20 In respect of the Fourth Publication, the Defendant, inter alia, pleaded legal professional privilege and denied defamatory imputations. 21 Paragraph 21 pleaded the Fifth Publication: "21. Prior to 6 July 2005 the defendant published to Ms Helen Freidman, the Assistant University Solicitor at Macquarie University the matter set out in Annexure "A" part 5 (referred to as the "Fifth Publication") Particulars of Fifth Publication The publication was the transfer of the defendant's legal file concerning the investigation to Ms Freidman in May 2005. The file contained information about the First, Second, Third and Fourth Publications and a 'direction' issued to the plaintiff by the university dated 30 March 2005, which information included the Fifth Publication." 22 Part 5 of the Annexure provided: The matter referred to in paragraph 21 was: "The grievance lodged by Sally Howell principally concerned a direction issued by Dr Rice to Mrs Howell on 30 March 2005 that she desist from discussing with persons involved in the investigation the factual matters giving rise to the complaint or the manner in which the University had determined that the matter be investigated." 23 By her defence, the Defendant, inter alia, denied the publication alleged, claimed legal professional privilege and denied defamatory imputations. 24 In relation to the whole of the Amended Statement of Claim, the Defendant pleaded absolute privilege by virtue of section 25H(2) of the Ombudsman Act, and clause 5 of Schedule 1 of the Macquarie University Act, and at common law. She also pleaded qualified privilege arising from the Defendant's role as the University Solicitor. THE SUBPOENA MOTION 25 The six documents covered by the University subpoena were produced to the Court in a sealed envelope but I have not inspected them. In respect of each of them the University claims legal professional privilege. Both the Defendant and the University assert that the subpoena should be set aside, either because the Plaintiff is prevented by an issue estoppel from challenging the claim of legal professional privilege or because the subpoena constitutes an abuse of the court's process. This arises so it is contended as a consequence of proceedings in the Administrative Decisions Tribunal (ADT) under the Freedom of Information Act (FOI Act). 26 In dealing with the subpoena motion it will be necessary to dwell at some length on the Plaintiff's attempts to obtain from the University documents under the FOI Act. For the most part, I take the unchallenged history of this from the affidavit of Andrew Gregory Miers, solicitor for the Defendant, sworn 12 March 2009. 27 The Plaintiff in all made six applications to the University under Part 3 of the FOI Act, each constituted by a letter from her husband and solicitor, Mr Philip Howell, to an officer of the University. All the documents sought related directly, or indirectly, to the complaint by Ms Johnston and the investigation which followed it. The applications were respectively made on 3 June 2005; 13 June 2005; 2 August 2005; 26 August 2005; 17 November 2005; and 22 December 2005. 28 The University is an "agency" for the purposes of the FOI Act. Section 16 in Part 3 gives a person "a legally enforceable right to be given access to an agency's documents in accordance with this Act". 29 By section 25, an agency may refuse access to a document "if it is an exempt document". Exempt documents are defined in Schedule 1 to the Act. They include by clause 10, a document "if it contains matter that would be privileged from production in legal proceedings on the ground of legal professional privilege". 30 Section 63 of the Administrative Decisions Tribunal Act (ADT Act) relevantly prescribes the powers of the ADT:

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"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.

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..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." 39 As to whether the relevant documents on their face attracted legal professional privilege, the Appeal Panel said: "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. 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." 40 In relation to the argument that the documents had lost their privileged status, the Appeal Panel encapsulated the issue: "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. 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." 41 The Appeal Panel then referred to the observations of Young J in AWB Ltd v Cole (No. 5) [2006] 155 FCR 30 before holding that the principles stated by his Honour were equally applicable to FOI proceedings. The Appeal Panel continued: "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. 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). 42 And a little later in the reasons: "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". 43 The Appeal Panel referred to the absence in Mr Wilson's reasons of any reference to the submission of "improper purpose" made on behalf of the Plaintiff and said: "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. 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." 44 In the outcome, the Appeal Panel affirmed Mr Wilson's decision in respect of the documents in the University subpoena. The Plaintiff thereupon appealed to the Court of Appeal. Its judgment was delivered by Campbell JA (Spigelman CJ and Bell JA agreeing) on 12 March 2008, [2008] NSWCA 26. The appeal was dismissed with costs. 45 After reciting the relevant facts and dealing with a submission by Mr Howell as to the proper interpretation of clause 10 in Schedule 1 to the FOI Act, Campbell JA made reference to the proceedings in the ADT: "The decision of the Appeal Panel did not set aside the Tribunal's decision on the ground that the Tribunal had determined whether the documents in question were subject to legal professional privilege by a procedure which was inconsistent with that adopted in legal proceedings. However, there is no error of law in the Appeal Panel's failure to set aside the Tribunal's decision on that ground.

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65 As well, the Appeal Panel noted, at [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 privilege status." 46 As to the "dominant purpose" test and the concept of "improper purpose" his Honour said : "72 The purpose for which a document is brought into existence is a question of fact: Grant v Downs [1976] HCA 63; (1976) 135 CLR 674 at [5], 692 per Jacobs J; Waterford v The Commonwealth [1987] HCA 25; (1987) 163 CLR 54 at [10], 66 per Mason and Wilson JJ; [14], 78 per Brennan J. While sometimes direct testimonial evidence from the person who created a document concerning the purpose which it was brought into existence can be both relevant and important, there is no requirement, even in a court of law, for the purpose with which a document was brought into existence to be proved in this way. Sometimes, an examination of the document itself can be enough to establish the dominant purpose with which it came into existence. That is often the case with a brief to counsel to advise, or a memorandum of advice from counsel, that deals with no topic other than the giving of advice. Sometimes, examination of the circumstances in which a particular document has been produced might show that even though the document considered on its own looked like legal advice, or a request for legal advice, there were other extraneous circumstances that led to the conclusion that it was produced with a dominant purpose other than one which would make the document privileged. It is a question of fact, involving weighing such evidence as is available, whether in any particular case a document was produced with a dominant purpose of giving or obtaining legal advice or the provision of legal services.

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(g) an overall balancing of justice to the alleged abuser against the matters supportive of abuse of process". " 54 For the most part, the circumstances listed above would seem to indicate a finding that the University subpoena does involve an abuse of process. However, Mr Howell, in argument before me, sought to rely on "fresh evidence" in the form of documents disclosed to his client after the hearing before Mr Wilson. He referred to his client's affidavit sworn 13 May 2009 whereby she deposed to having received at various times, on and after 23 December 2005, documents which, so he claimed, evidenced improper purpose. 55 The first of those documents was the reference to Mr Kelly's file note in the letter from the Ombudsman to Professor Loxton dated 18 August 2005 quoted in paragraph 9 above. 56 As it appears, the file note referred to is part of a file note dated 15 March 2005 of which the Defendant received the full text on 3 November 2008. The note read: "I telephoned Jenny O'Brien in response to an email message received this morning. 1. I advised her that I have not heard anything from either of the solicitors acting for Kyle Pitt and Ann George. We agreed that Jenny would provide me with contact details for each and I will make direct contact. 2. Jenny advised, as she had previously, that the solicitor for Ann George had indicated to her that she was happy for Ann to participate in a face-to-face interview and preferred that approach. Since then however, Sally Howell has been active in her contact with both Ann George and Kyle Pitt in urging them not to participate in any interview. I am unaware of any direct contact with the solicitor for Kyle Pitt and what their position on a face to face interview was and is, but I understand they were favourably disposed but still in the consideration stage. 3. I expressed concern that actions of this nature by Sally Howell constituted an obstruction to the investigation, compromised the independence and transparency of the investigation, and may constitute interference with the witnesses. Jenny indicated that Sally Howell had extended the same approach to the witnesses I have identified including Felicity Graham and Brigid O'Riley. I recommended that consideration be given to a direction to Sally Howell that she not communicate with witnesses and other persons subject of allegations in this matter, in the circumstances. 4. Jenny informed me that Philip Howell, Sally's husband and solicitor, has lodged a 45 page complaint to the Ombudsman about Jenny's conduct of this matter and the investigation generally. Jenny is preparing a report to the Vice Chancellor and is making, or has made, a response to the Ombudsman." 57 Mr Howell next referred to a letter from Professor Loxton to the Ombudsman dated 12 September 2005, which the Defendant received on 17 February 2006. The letter acknowledges the Ombudsman's letter setting out his conclusions and determination and includes the paragraph:

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"For clarification purposes please note that I am informed by the University Solicitor, Mrs Jenny O'Brien, there are two errors in the investigation reports which are referred to in your letter which should be brought to your attention. The errors are to be found at the paragraph setting out the details of Mr Kelly's file note dated 15 March 2005 at page two of your letter. Firstly, it is Mrs O'Brien's recollection that Felicity Graham never advised her that she had received such an approach from Ms Howell, and she may have inadvertently led Mr Kelly to believe Ms Graham's initial position was based on advice from Ms Howell. Secondly, it is her understanding the reference to 'Brigid O'Riley' should have been 'Glenys O'Riley' and confirms Ms O'Riley was one of at least three potential witnesses who were advised by Ms Howell that they did not have to participate in a face to face interview. These errors do not appear to affect the findings made in this matter by the investigator or the University or the determination made by your office." 58 In light of that material Mr Howell submitted that the conclusion to be drawn is that the Defendant was the source of all Mr Kelly's information about the Plaintiff and that the direction given to the Plaintiff on 30 March 2005, a draft of which being one of the publications relied upon by the Plaintiff, resulted from the Defendant's allegations against the Plaintiff, not because of anything Mr Kelly observed himself. Moreover, so Mr Howell contends, it evidences the publication by the Defendant to Mr Kelly of the allegedly defamatory material contained in the first publication, a publication denied by the Defendant on the pleadings. 59 Furthermore, so Mr Howell submitted, there is a discrepancy between Mr Kelly's file note and a letter written by the Defendant to Mr Howell on 16 March 2005 which contains the sentences: "I am instructed that Ms Glenys O'Reilly has informed my client that your client advised her that she need not attend a face to face interview with the University appointed investigator. Ms O'Reilly further advised my client that your client made similar statements to all staff members likely to be approached by the investigator. The second limb of Mrs O'Reilly's assertion is yet to be confirmed. I note, however, that your client objected vigorously to the face to face interview proposal during the course of the meeting on 17 February notwithstanding the University had clearly indicated in December, 2004 that it no longer pressed for a face to face interview in so far as she was concerned." 60 The discrepancy, so Mr Howell claimed, arises from the reference to an unconfirmed allegation in the letter, contrasted with positive assertions in Mr Kelly's file note. Improper purpose, so Mr Howell contended was to be inferred from a combination of the exaggeration of the situation in the letter to Mr Howell and other documents annexed to the Plaintiff's affidavit of 13 May 2009 including Mr Kelly's file note of 18 February 2005 which contained the sentence: "Jenny hoped that Sally Howell would not attend because of the issues relating to her response to the investigation to date, but she did attend. Her involvement was unhelpful" 61 Having carefully considered Mr Howell's submissions, in the light of all the material before me, I am firmly of the view that nothing, which came to the Plaintiff's notice after the hearing before Mr Wilson, evidences improper motive on the part of the Defendant. To my mind, it suggests no more than she was seeking to pursue her client's interests and instructions to the best of her ability. 62 Before concluding my consideration of the subpoena motion, it is necessary that I deal with Mr Howell's submission based on the decision of the High Court in Attorney General for the Commonwealth v Breckler (1999) 197 CLR 83. 63 The case concerned the question whether Section 37 of the Superannuation (Resolution of Complaints) Act (Cwth), (the Complaint Act) was invalid, in so far as it purported to confer the judicial power of the Commonwealth on a tribunal inconsistently with Chapter lll of the Constitution. In their joint reasons at paragraph 46 Gleeson CJ, Gaudron, McHugh, Gummow, Haynes and Callinan JJ, said: "Reference also should be made to a consideration which, although not necessarily decisive, strengthens the case for validity which is otherwise made out. It is that the Complaints Act does not purport to give determinations of the Tribunal that conclusive character which would prevent collateral challenge in proceedings to compel observance of those determinations. Section 37(3) of the Complaints Act obliges the Tribunal to make a determination in writing which affirms the decision of the trustee in question, remits it, varies it, or sets it aside by substituting the decision of the Tribunal for that of the trustee. Upon such variations or substitutions, s 41(3)(a) operates by specifying that the decision of the Tribunal is "for all purposes" to be taken to be a decision of the trustee. That proposition is qualified by the phrase "other than the making of a complaint about the decision" so as to avoid a situation whereby the machinery beginning with the operation of s 14 is again set in motion, this time in respect of the Tribunal's deemed decision. Conferral upon the determination of the Tribunal of the status of a decision of the trustee does not bring with it a preclusive effect which immunises the determination, and thus its status, from attack in properly constituted curial proceedings. The scope and range of such proceedings is indicated earlier in these reasons." 64 There is no provision in either the FOI Act or the ADT Act in or the effect of the provision in the Complaint Act that for all purposes the decision of the Tribunal was to be the decision of the trustee. Nor does the decision of the ADT seem to me to be one having a "preclusive effect which immunises the determination and thus its status from attack in properly constituted curial proceedings". To the contrary, in my view, there is very much a "conclusive character" about the ADT's determination. 65 The focus of the subpoena motion was not, in any event, the decision of the University. The question is whether it is an abuse of the courts process to re-litigate the precise issue which has been decided according to law by a properly constituted tribunal, which has express jurisdiction in the matter. It is also not to the point, in my view, that the procedures in the ADT may be less formal than those of the Court. The Plaintiff had every opportunity in light of the material available to her to adduce evidence and argue her position fully in the ADT. As I have found, nothing which has come into her possession since advances her position. 66 In the result, I am of the opinion that the issue of whether the documents listed in the subpoena under challenge are subject to legal professional privilege was resolved by the decision of the ADT and that it would be an abuse of the court's process to permit that issue to be relitigated. Accordingly, on the Defendant's motion. I would order that the University subpoena be set aside.

[72]

(3) Nothing in this Part affects any obligation or power to provide information apart from this Part. " 72 The word "information" is not defined, although it appears in several sections, within Part 3A. Mr McClintock submitted that it should be construed widely to achieve the purposes of the statute. That purpose, as it seems to me, is the prompt notification by an agency to the Ombudsman of a reportable allegation and, where appropriate, the investigation of that allegation, either by the Ombudsman or by the agency itself monitored by the Ombudsman. Clearly section 25H must be taken to extend beyond publications to, or by, the Ombudsman, which were already protected by section 17A(1) of the Defamation Act 1976. 73 There is no doubt that the University conducted an inquiry into Ms Johnston's allegation and the correspondence makes it abundantly plain that the inquiry was monitored by the Ombudsman. 74 Mr Howell submitted correctly, I think, that the information to which section 25H(2) refers is information with which Part 3A deals, namely reportable allegations and the investigation of, and response to, them. He submitted also correctly, I think, that the phrase "under the Part" would deny protection to a person who has made a reportable allegation shown to be false and malicious as contemplated by section 25F (4). 75 However, for reasons earlier given, there is, in my view, not a scintilla of evidence that in anything she did the Defendant acted falsely or maliciously. Even if, which I doubt on the evidence before me, she was mistaken in her belief as to the attitudes and conduct of the Plaintiff, that is a very far cry from the animus required for her to have acted falsely and maliciously. Nor, so far as I am aware, was it ever suggested by anybody that Ms Johnston's reportable allegation was made falsely and maliciously. 76 Mr Howell also submitted that the alleged publications were not, in any event, "disclosures of information" protected by section 25H(2). In relation to the first publication, he submitted that this was so because its subject matter was not "the reportable allegation", or the University's response, but rather concerned the Defendant's views about the participation of staff members in the investigation. Similarly, he contended that the other alleged publications concerned matters strictly extraneous to the reportable allegation and the agency's response. In substance, as I understand it, his contention was that section 25H only protects disclosures of information where the provision of that information is expressly provided for, such as in s 25B(2) and s 25D(1). 77 There is, I think, no significance to be given to the word "information" itself. Otherwise disclosures for the purposes of section 25C where the word "information " is not used would not be protected unless made by, or to, the Ombudsman. In my opinion, "information" should be given its ordinary meaning, see for instance The Macquarie Dictionary, Third Edition, "information; 1. knowledge communicated or received concerning some fact or circumstance; news". 78 Consistently with section 33 of the Interpretation Act and the line of cases dealing with the interpretation of remedial, beneficial, and protective provision in statutes, (see for instance D C Pearce and R S Geddes, Statutory Interpretation in Australia 6th Edition paragraph 9.7) in my opinion, section 25H should, as submitted by Mr McClintock, be given the widest possible scope. As I have said Part 3A is plainly intended to facilitate a full and appropriate response to reportable allegations. It must be inferred that the legislature, by enacting section 25H, intended that those engaged in the investigation of a reportable allegation should receive full protection from civil litigation. Contrary to the submission of Mr Howell, I agree with Mr McClintock that the phrase "under this Part" used in section 25H(2) does not restrict the protection given to information "required" to be disclosed under Part 3A, as this would exclude such disclosures as those made under section 25D, where the use of the word "may" suggests a discretion. I favour the interpretation suggested by Mr McClintock that the words "under this Part" have a meaning akin to "in complying with this part". The protection extends, in my opinion, to anything done by an officer of an agency in furtherance of the investigation, including in the case of a solicitor the provision of legal advice as to the manner in which the investigation should be conducted and the degree of cooperation which might be expected from employees of the agency. 79 As all the publications relied upon by the Plaintiff in this case related to the conduct of the Defendant in her role as solicitor for the University, advising and assisting it in the investigation of Ms Johnston's reportable allegation, I hold that a defence based upon section 25H(2) of the Ombudsman Act applied to those publications. It follows that the Plaintiff's action is bound to fail and that the Defendant is entitled to the relief she seeks. In case I am wrong in my interpretation of section 25H, however, I will deal with other matters argued. MACQUARIE UNIVERSITY ACT 80 The Macquarie University Act established the University as a body corporate. Section 8 provided for a council of the University to be its governing authority and section 9 provided in detail for the constitution of such council.

[81]

It is not necessary that statements to prosecuting authorities be absolutely privileged. The function of an authority charged with investigation and prosecution, whether in the courts or elsewhere, is not to ascertain the truth and justice of the matter in a final or binding way, but to decide whether the circumstances warrant the institution of proceedings to ascertain the truth of the matter. Absolute privilege is not required for the effective discharge of that function. Nor is it required for complaints inviting investigation of a special magistrate's ability to discharge his duties of office." 89 Although McHugh J dissented, his Honour discussed absolute privilege in terms apparently approved by the Court of Appeal in Markisic at paragraph 84. At page 221 and following pages McHugh J said (omitting references to authorities cited): "The defence of absolute privilege is available, in limited circumstances, in respect of communications made for the purpose or in the course of judicial, executive and parliamentary proceedings. It is available when its absence would hamper "the efficient functioning of our governmental institutions: legislative, executive and judicial". A person seeking to rely upon the defence has the onus of proving that it applies to the circumstances of the case. Further, that person must demonstrate that its application is necessary in such cases if the relevant governmental institution is to work effectively. As Gavan Duffy CJ, Rich and Dixon JJ stated in Gibbons v Duffell : "The truth is that an indefeasible immunity for defamation is given only where upon clear grounds of public policy a remedy must be denied to private injury because complete freedom from suit appears indispensable to the effective performance of judicial, legislative or official functions. The presumption is against such a privilege and its extension is not favoured ( Royal Aquarium and Summer and Winter Garden Society Ltd v Parkinson ). Its application should end where its necessity ceases to be evident."

[83]

In the few cases where the common law permits the defence in respect of communications made in the course of judicial or quasi-judicial proceedings, it is because the policy of the law requires the court to look beyond the immediate motives and interests of the parties to the wider interests of the proper functioning of the administration of justice. Thus, the evidence of witnesses in courts of justice is absolutely privileged although no doubt some witnesses give false evidence and may sometimes do so maliciously. But absolute privilege exists because the courts presume that it will encourage a greater number of witnesses to speak in a freer and informative manner - which clearly serves the interests of justice - than would be the case if they had only the protection of qualified privilege. As Pearce LJ stated in Addis v Crocker : "absolute privilege is given to proceedings in courts of law in order that judges, advocates and witnesses may perform their respective parts free from a deterrent fear of actions for defamation. This privilege can create hardship for some persons in particular cases, but it is on balance an advantage to the community." …………………………………….. By a long standing rule of the common law, absolute immunity from suit attaches to statements made for the purpose or in the course of the proceedings of any court or tribunal "recognised by law". ……………………………….. Reported decisions show that a tribunal will be characterised as "recognised by law" for the purposes of this limb of the defence only where a clear case is established. Thus, in Royal Aquarium the English Court of Appeal denied absolute privilege to a meeting of the London County Council to consider applications for music and dancing licences. Lord Esher MR said that they were performing an administrative duty, not a judicial duty. In O'Connor v Waldron, the Privy Council held that absolute privilege did not attach to an inquiry held under the Combines Investigation Act . The Judicial Committee held that a commissioner appointed under the Act exercised administrative functions, notwithstanding that he had a duty to act judicially. Their Lordships said:

[87]

However, it should not be overlooked that the suggested equation works two ways. Given its drastic effect in foreclosing all means of redress for defamatory remarks made maliciously, the potential widespread availability of the defence of absolute privilege might itself provide a disincentive to applying the rules of natural justice to new forms of tribunals." 90 I am not persuaded that the passages from Mann v O'Neil, which I have quoted, warrant the conclusion sought by Mr McClintock. Although in its investigation of Ms Johnston's complaint, the University was no doubt required to comply with the norms of natural justice, it was in no sense a body "recognised by law" of the kind referred to by McHugh J. It seems to me that in the circumstances of this case, the common law does no more than provide the Defendant with qualified privilege. In order that the alleged publications attract absolute privilege the Defendant must, in my view, rely solely upon the statutory privilege conferred by section 25 H of the Ombudsman Act. THE PROCEEDINGS CONSITUTE AN ABUSE OF PROCESS 91 Mr McClintock submitted that in the event the University subpoena is set aside, the proceedings themselves must necessarily thereby constitute an abuse of process, at least in respect of the second and third publications, which, on their face, form but part of more extensive documents. 92 It was submitted that not only the Plaintiff but the Defendant also would be prevented from presenting her case if, in effect, the University's claim of legal professional privilege were upheld. He referred to observations of Mason CJ in Jago v District Court of NSW (1989) 168 CLR 23 in relation to the inherent jurisdiction of a court to control and supervise proceedings so as to prevent injustice. Mr McClintock submitted that the proceedings should be permanently stayed in relation to the second and third publications. 93 Mr Howell, on the other hand, contended that material was available to the Plaintiff from which inferences could be drawn sufficient to establish a case in respect of the second and third publications. He referred to Kaplan v Go Daddy Group Inc [2006] NSWSC 250 where Simpson J in somewhat analogous circumstances refused to strike out an Amended Statement of Claim. Although the absence of relevant documents in her hands may prove insuperable to the Plaintiff, it is not the situation, I think, where it would be necessary to grant a permanent stay in order to avoid injustice. The Plaintiff has the onus of proving her case, if she is unable to do so, the proceedings would fail. It is not apparent to me that the evidentiary problems faced by her would cause irremediable injustice to the Defendant. I would decline to grant the stay sought. CONCLUSION 94 For the reasons given, I am satisfied that the Defendant is entitled to the relief she seeks on both motions. In my opinion, the University subpoena should be set aside as an abuse of the Court's process and the proceedings themselves should be dismissed on the basis that they are bound to fail within the principles established by General Steel. 95 I make these orders:

Howell v O'Brien

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