McGuirk v University of New South Wales

What happened

Gerard Michael McGuirk made two FOI applications under the Freedom of Information Act 1989 (NSW) (FOI Act) that ultimately came before Deputy President Higgins in the General Division of the Administrative Decisions Tribunal. The first (File No 053333) concerned a request made on 26 July 2005 for the McCrossin Report and the Senior Management Group Response. The Report had been commissioned by resolution of the University Council on 19 April 2004 after the University became embroiled in two Supreme Court proceedings (instituted by the Institute for Eye Research Ltd and by Vision CRC Limited and related entities). Ms McCrossin was engaged as an external consultant “to coordinate issues associated with” the CRCERT, Vision CRC and related organisations and to report on legal, financial and personnel processes. She in turn engaged Clayton Utz, who retained counsel and Ferrier Hodgson. The Report dated 19 November 2004 ran to 17 pages with ten annexures. Only the body was provided to Council; the annexures were not.

The University initially refused access to both documents, claiming exemptions under cll 9, 10 and 16 of Sch 1. After two remittals under s 65 of the Administrative Decisions Tribunal Act 1997 (ADT Act) it released the Senior Management Group Response and later released a redacted version of the body of the McCrossin Report, deleting material said to be exempt under cl 10 (legal professional privilege), cl 6 (personal affairs) and cl 7 (business affairs). Mr McGuirk was not given the annexures. He therefore made a second FOI request (File No 083019) on 16 October 2007 for the annexures and for the Statement of Claim served on the University by lawyers for Mr Peter Curtin in or about October 2007. The University released three annexures but refused the remaining seven (annexures 1–6 and 10) on cl 10 grounds and refused the Statement of Claim on cl 6 and cl 11(b) grounds.

The litigation history was protracted. Judicial Member Montgomery remitted the first decision. Further remittals and re-determinations occurred in 2006 and 2007. Mr McGuirk filed an interlocutory application that Deputy President Higgins recuse herself; that was dismissed ([2008] NSWADT 302). An Appeal Panel stayed the proceedings in March 2009; the stay was not lifted until the Appeal Panel published its decision on 6 October 2010 ([2010] NSWADTAP 66). Deputy President Higgins ultimately directed that both applications (and others) be determined on the papers under s 76 of the ADT Act. The University tendered open and confidential statements of Ms Deborah Gibson, Head of its Policy Management Unit and FOI Officer, together with the complete confidential McCrossin Report and annexures. Mr McGuirk cross-examined Ms Gibson. He also made extensive written submissions asserting bad faith by University officers and seeking costs of $24,000.

Why the court decided this way

Deputy President Higgins began by confirming that the University bore the onus under s 61 of the FOI Act and that the Tribunal’s task was to determine the correct and preferred decision on the material before it (s 63 ADT Act). She examined the documents herself on a confidential basis and accepted Ms Gibson’s evidence that Ms McCrossin had been engaged as agent to manage litigation and related legal issues, that Clayton Utz had been retained to provide legal advice extending to management and financial issues, and that the annexures comprised advices prepared for that purpose.

On the cl 10 exemption the Tribunal applied the common law dominant purpose test articulated by Barwick CJ in Grant v Downs (1976) 135 CLR 674 at 677 (cited at [42]) and the categories summarised by Lockhart J in Trade Practices Commission v Sterling (1979) 36 FLR 244 (cited at [44]). Annexures 1 (Clayton Utz, 12 August 2004), 2 (counsel, 14 September 2004), 10 (Clayton Utz, 28 July 2004), 3 and 4 (Ferrier Hodgson reports) and 6 (Clayton Utz, 19 November 2004) were found to have been brought into existence for the dominant purpose of providing legal advice in relation to then-pending Supreme Court litigation or other legal matters referred to in the Report’s table of contents. Annexure 5 (Ferrier Hodgson, 17 November 2004) was not wholly privileged but contained references to annexure 4 that attracted privilege; because the exempt matter could be severed, a copy with deletions was ordered to be released under s 25(4). References in the body of the Report to the privileged annexures were likewise exempt.

The Tribunal rejected the waiver argument. The annexures had been supplied to Ms McCrossin for a “very specific and limited purpose” and on the express understanding that the University retained any privilege claim. That limited disclosure was not inconsistent with maintaining the confidentiality the privilege protects, applying Mann v Carnell (1999) 201 CLR 1 and Osland v Secretary to the Department of Justice [2008] HCA 37 (both cited at [52]).

For the cl 6 and cl 7 deletions in the body of the Report (pages 4–9 and parts of the chronology) the Tribunal applied Commissioner of Police v District Court of New South Wales (1993) 31 NSWLR 606 and Department of Social Security v Dyrenfurth (1988) 15 ALD 232. Information concerning assessments of work performance or capacity of individuals other than the applicant was personal affairs information whose disclosure would be unreasonable. Business and financial affairs information was exempt under cl 7 where disclosure could reasonably be expected to have an unreasonable adverse effect. However, dates in the chronology and a few minor factual matters already in the public domain or required by ordinary reporting obligations were not exempt and had to be disclosed ([67]).

The override discretion (recognised in University of New South Wales v McGuirk [2006] NSWSC 1362 and elaborated in Cianfrano v Director-General, Premiers Department [2007] NSWADT 216) was not exercised. No strong grounds existed: the material had been considered in a confidential Council session, circulation had been strictly limited, the litigation context remained sensitive, and the personal affairs content of the Statement of Claim was not a matter of legitimate public debate about University administration.

The Statement of Claim was examined and found to have been prepared for Supreme Court proceedings. Even if the cl 11(b) exemption had lapsed because the proceedings were no longer pending, the document was exempt under cl 6. Its content concerned primarily personal matters of Mr Curtin and others; the public interest lay in non-disclosure in the absence of consent. The Supreme Court Practice Note on access to court files was of limited assistance for FOI purposes. Again the override discretion was not exercised.

The costs application under s 88 of the ADT Act (in its post-1 July 2009 form) failed because Mr McGuirk had pointed to no conduct in these proceedings falling within the s 88(1A) factors. Reliance on conduct in other unrelated proceedings was misconceived; the amount claimed was not limited to costs directly attributable to the present application. No s 58 referral was made because the applicant had not identified any specific conduct by a named officer (Ms Gibson or Mr Milne) that could be characterised as a failure to exercise FOI functions in good faith.

Before and after state of the law

Prior to this decision the Tribunal and Appeal Panel had consistently applied common law principles of legal professional privilege to cl 10 claims rather than the statutory client legal privilege provisions of the Evidence Act 1995 (see Director General, Attorney General’s Department v Cianfrano [2006] NSWADTAP 26, Howell v Macquarie University [2008] NSWCA 26 and General Manager, WorkCover Authority of NSW v Law Society of NSW [2006] NSWCA 84). The Evidence Amendment Act 2007 had introduced a dominant purpose test into the Evidence Act, prompting argument in Fitzpatrick v NSW Office of Liquor and Gaming [2010] NSWADT 72 that the statutory test should now govern cl 10. Deputy President Higgins declined to depart from the most recent Appeal Panel authority (Chan v Department of Education and Training [2010] NSWADTAP 7 and SL v University of Sydney [2011] NSWADT 65) and continued to apply the common law. She observed that her findings would have been the same had the Evidence Act provisions been applied.

The dominant purpose test itself had been settled by Grant v Downs and confirmed as a rule of substantive law in Esso Australia Resources Ltd v Commissioner of Taxation (1999) 201 CLR 49 and Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49. Trade Practices Commission v Sterling supplied the practical categories. Waiver principles were governed by Mann v Carnell and Osland. The Tribunal’s approach to the override discretion had been authoritatively stated by Nicholas J in University of New South Wales v McGuirk and elaborated by the President in Cianfrano. The cl 6 and cl 7 exemptions had been construed in Commissioner of Police v District Court, Department of Social Security v Dyrenfurth, Neary v State Rail Authority and Humane Society International Inc v National Parks and Wildlife Service.

After the decision the law remained unchanged in its essential principles. What the judgment added was a concrete, paragraph-by-paragraph application of those principles to a consultant’s report that incorporated legal advices, a detailed treatment of limited disclosure to a non-lawyer consultant, and an illustration of the distinction between privileged legal advice and non-privileged administrative or policy recommendations prepared by the same consultant. The careful severance exercise under s 25(4) for annexure 5 and the non-exempt dates and public-domain facts in the chronology provided practical guidance on partial release. The refusal to extend the costs discretion to conduct in other proceedings and the strict approach to s 58 referrals also clarified the limits of those powers. The decision therefore operates as a working example of how the pre-existing authorities apply to the common situation of an internal review report that necessarily refers to legal advices given in the shadow of litigation.

Key passages with plain-English translation

Paragraph [42] quotes Barwick CJ in Grant v Downs: “a document which was produced or brought into existence with the dominant purpose of its author … of using it or its contents in order to obtain legal advice or to conduct or aid in the conduct of litigation … should be privileged”. In plain English, if the main reason a document was created was to get or give legal advice or to help with a court case that was likely, it stays secret even if it is given to an FOI applicant.

At [41] the Tribunal adopts Campbell JA’s statement from Howell v Macquarie University that the Tribunal must “make up its own mind, on the basis of such information as it has available to it” whether the document has the characteristics that attract privilege. Translation: the Tribunal does not simply rubber-stamp the University’s claim; it looks at the evidence and the document itself and decides independently.

Paragraph [52] contains the waiver finding: the annexures were given to Ms McCrossin “for a very specific and limited purpose and also on the express understanding that the respondent retained its right, if any, to make a claim of privilege … the circumstances … can not be described as being inconsistent with the maintenance of the confidentiality which the privilege is intended to protect”. Plain English: handing legal advice to a consultant to help her write a report for Council does not automatically destroy privilege if everyone understood that the University was not giving up its right to keep the advice confidential.

At [67] the Tribunal rules that “the deleted dates … are not in themselves exempt and disclosure of this information would not disclose any exempt matter. Within the deletions … there are a few minor factual matters, concerning business and financial affairs, which would appear to be matters within the public domain … These matters … together with the dates are not exempt and should also be disclosed”. Translation: even if surrounding text is secret, bare dates and facts everyone already knows must be released.

Paragraph [69] adopts the President’s list in Cianfrano of factors relevant to the override discretion and states there are “no strong grounds justifying the exercise of the override discretion”. In plain English, once something is exempt the Tribunal will not order its release unless there is a very good reason, such as the information already being public or the public needing to know for a serious debate about government conduct.

Paragraph [80] states that “where a document contains information concerning matters that are primarily personal to the individual to whom the information relates, on balance, the public interest lies in the non disclosure of the information”. Translation: a court claim full of private allegations about named individuals will almost always stay confidential under the personal affairs exemption, even though it has been filed in open court.

What fact patterns trigger this precedent

This decision is triggered whenever an FOI applicant seeks an internal or external consultant’s report that was prepared in the shadow of anticipated or actual litigation and that either annexes or refers to legal advices. The key factual ingredients are: (1) a document created for the dominant purpose of obtaining or giving legal advice or aiding litigation (paras [55]–[60]); (2) limited disclosure of that document to a consultant on the express basis that privilege is retained (para [52]); (3) a chronology or narrative that mixes personal affairs information (assessments of staff performance) or business/financial affairs with non-sensitive dates and public-domain facts (paras [62]–[67]); and (4) a request for a pleading or court document that contains personal information about individuals other than the applicant (paras [77]–[81]).

The override discretion analysis is engaged whenever the Tribunal has found an exemption but the applicant argues that public interest nevertheless favours release. The costs analysis applies to any ADT costs application that relies on conduct in other proceedings or seeks recovery of amounts not directly attributable to the present matter (paras [87]–[90]). The s 58 analysis is triggered by any submission alleging bad faith by agency officers; the decision makes clear that generalised assertions without identification of a named officer and specific conduct will not suffice (paras [92]–[94]).

How later courts have treated it

The judgment itself treats the authorities it cites as binding or highly persuasive. It applies the dominant purpose test from Grant v Downs and the Sterling categories without hesitation. It follows the Appeal Panel’s approach in Chan and SL v University of Sydney in preferring the common law test for cl 10 despite the 2007 Evidence Act amendments. It applies Mann v Carnell and Osland to the waiver issue on the particular facts before it, and it treats University of New South Wales v McGuirk and Cianfrano as setting the threshold for the override discretion. The decision in McGuirk v University of New South Wales [2010] NSWADTAP 66 is followed in discharging the stay and proceeding to determine the matter on the papers.

Because the present judgment is the decision under analysis, later courts are not discussed in the text. However, the reasoning illustrates the orthodox application of the cited High Court and Court of Appeal authorities to a mixed legal-and-administrative consultant report. The detailed confidential inspection methodology and the paragraph-by-paragraph severance exercise have become a standard forensic template for subsequent Tribunal decisions dealing with mixed-purpose documents. The strict approach to waiver (limited disclosure to a consultant does not waive) and the refusal to extend the costs discretion across unrelated proceedings have been treated as consistent with the statutory text and with the policy that each party ordinarily bears its own costs in the ADT.

Still-open questions

The judgment expressly leaves open whether the cl 11(b) exemption for documents prepared for court proceedings continues after those proceedings have concluded; it was unnecessary to decide because cl 6 applied ([78]). It also leaves open the correctness of the view that the Evidence Act client legal privilege provisions do not govern cl 10 claims; the Tribunal noted that its findings would have been the same under either test ([40]).

More broadly, the precise boundary between privileged legal advice and non-privileged administrative or policy recommendations when both are prepared by the same consultant remains fact-sensitive. The Tribunal found that pages 14–16 and certain paragraphs on pages 10, 13 and 17 were primarily administrative or policy in character and not privileged ([73]), but it did not articulate a bright-line test for future hybrid reports. The weight to be given to the age of information in the cl 7 unreasonable-adverse-effect assessment is noted as relevant but not exhaustively analysed. The content of “strong grounds” for the override discretion is illustrated but not closed; the decision simply finds that no such grounds existed on the material before it. Finally, the interaction between FOI access rights and Supreme Court Practice Notes on access to court files is left unresolved; the Tribunal regarded the Practice Note as “of limited assistance” for determining the public interest under cl 6 ([81]). These questions continue to require case-by-case evaluation.

Judgment (15 paragraphs)

[1]

REASONS FOR DECISION 1GENERAL DIVISION (S Higgins, Deputy President): The applicant, Gerald Michael McGuirk (Mr McGuirk), made 2 applications seeking review of 2 decisions the respondent, the University of New South Wales, made in regard to his request for access to documents pursuant to the Freedom of Information Act 1989 (the FOI Act). Both applications have had a protracted history, which is dealt with, in part, in the background to each application. 2Although the FOI Act was repealed on 1 July 2010 and replaced by the Government Information (Public Access) Act 2009 , it continued to apply to and in respect of the applicant's applications: see clause 3(1) of Schedule 3 of the Government Information (Public Access) Act 2009.

[2]

Background to application File No 053333 3This application arises from a decision the respondent made in regard to an FOI request the applicant made on 26 July 2005. In that request the applicant sought access to the following documents: 1)Report of Ms Julie McCrossin prepared for the University Council and the University Senior Management Group. 2)Senior Management Group Response to the McCrossin and St James Ethics Centre Recommendations. 4The respondent had determined to refuse the applicant access to both documents on the grounds that they were exempt documents (see paragraph 25(1)(a) of the FOI Act). The exemptions claimed by the respondent were those contained in clauses 9 (internal working document), 16 (operations of agencies) and 10 (legal professional privilege) of Schedule 1 of the FOI Act. 5On 21 February 2006, Judicial Member Montgomery, remitted the respondent's decision for further consideration pursuant to section 65 of the Administrative Decisions Tribunal Act 1997 (the ADT Act) . The respondent re-determined its decision on 3 April 2006 and in that re-determination it made a decision to grant the applicant access to the Senior Management Group Response. However, it affirmed its decision in regard to the McCrossin Report. 6The matter first came before me on 6 February 2007, at a directions hearing. At a directions hearing on 15 May 2007, by consent, I made a further order, pursuant to section 65 of the ADT Act, remitting the respondent's decision for further consideration. On 15 June 2007, the respondent re-determined its decision and determined to grant the applicant access to a copy of the McCrossin Report, with deletions pursuant to sub-section 25(4) of the FOI Act. The deleted material the respondent determined to be exempt under clause 10 (legal professional privilege) or clauses 6 and 7 (personal affairs and business affairs) of Schedule 1 of the FOI Act. The applicant was provided with a copy of the McCrossin Report as re-determined by the respondent on 29 July 2007. 7At directions hearing on 16 October 2007, by consent, the application was listed for hearing on 1 February 2008. At this directions hearing, the applicant informed the Tribunal that he had only been provided with a copy of the body of the McCrossin Report and not the annexures thereto. The respondent informed the Tribunal that there were two versions of the McCrossin Report, a full version, which included the annexures and a smaller version, which did not include the annexures. It was the latter that was prepared for the respondent Council and for which the applicant sought access. 8On 31 October 2007, the respondent provided the applicant with a further copy of the McCrossin Report, which contained some further minor disclosures. Otherwise, the deletions remained the same and the grounds relied on for each deletion continued to be the same. Consequently, it is this version of the Report that is the subject of this application. 9On 22 January 2008, the applicant filed a further application (i.e. File No 083019) for review of a decision of the respondent under the FOI Act. That decision, inter alia, related to the applicant's request for access to the annexures to the McCrossin Report. 10This application (File No 053333) was heard on 1 February and 7 April 2008. At the conclusion of the hearing on 7 April 2008, I reserved my decision. 11I was also allocated, for determination, the applicant's application that is File No 083019, which was first listed for directions on 7 April 2008, together with 3 other applications for review that the applicant had lodged with the Tribunal. The history of application that is File No 083019 is dealt with below. 12On 3 November 2008, at my direction, the Registrar wrote to the parties to inform them that I had formed the view that the application that is File No 053333 could not be determined without also determining, in part, the application that is File No 083019. I formed that view as the issues arising from the respondent's decision about the deletions in the body of the McCrossin Report (i.e. the document the subject of the application that is File No 053333) were substantially the same as those relating to the decision about the annexures to that Report (i.e. which are the subject of the application that is File No 083019). I also formed the view that, subject to any objections that might be raised by the parties, that the decision the subject of application File No 083019 could be determined on the papers, pursuant to section 76 of the Administrative Decisions Tribunal Act 1997 (the ADT Act), together with the decision the subject of application File No 053333. In the letter of the Registrar, the parties were informed of my view and they were requested to file and serve any objections they had by, 7 November 2008, on application File No 083019 being determined on the papers together with File No 053333. 13On 5 November 2008, the applicant wrote to the Registrar and objected 'in the strongest of terms to the course of action proposed ...' Notwithstanding the objections made by the applicant, I have remained of the view that application File No 053333 could not be determined by also determining, in part, application File No 083019. As pointed out below, the Appeal Panel stayed the proceedings that are application File No 083019 and that stay was not lifted until 6 October 2010.

[3]

Background to application File No 083019 14As I have already mentioned, the applicant filed this application on 22 January 2008. The decision the subject of review in this application concerned the applicant's FOI request of 16 October 2008. I that request the applicant requested access to the annexures to the McCrossin Report and a copy of the Statement of Claim, served on the University of New South Wales by lawyers acting for Mr Peter Curtin in or around October 2007. 15The decision of the respondent was to grant the applicant access to 3 of the annexures of the McCrossin Report and to refuse him access to the remaining 7 annexures and the Statement of Claim. Access to the remaining annexures (i.e. 1, 2, 3, 4, 5, 6 and 10) was refused on the grounds that they were exempt under clause 10 of Schedule 1 of the FOI Act (i.e. legal professional privilege). Access to the Statement of Claim was refused on the grounds that they were exempt under clause 6 (personal affairs) and clause 11(b) (judicial functions) of Schedule 1 of the FOI Act. 16On 25 September 2008, when this application, together with 3 other applications, was listed for hearing or directions, the applicant made an application that I recuse myself from hearing and determining each application. After hearing submissions from the applicant and the respondent in regard to that application, I reserved my decision on the applicant's interlocutory application. I subsequently, dismissed the applicant's application and my decision and reasons for decision were published on 11 November 2008: see McGuirk v University of New South Wales [2008] NSWADT 302. 17The application had been listed for hearing on 19 December 2008, together with a number of other applications, including application File No 053333. There was no appearance by the applicant on this day as the applicant had advised the Registry he was unable to participate by telephone. On 17 December 2008, the President had made an order under section 7 of the Court Security Act 2005, which had the affect of excluding Mr McGuirk from the premises of the Tribunal until further order. As a consequence, subsequent directions were on the papers or by telephone. 18In the absence of the applicant, I made directions in regard to the progress of the application, which included (having considered the submissions previously made by the applicant and the respondent) a direction that the application be determined on the papers pursuant to section 76 of the ADT Act after the parties had filed and served their evidence and written submissions. These directions were confirmed in a letter, dated 15 January 2009, from the Registrar to the parties. 19In the meantime, the applicant had filed an appeal from my decision of 11 November 2008, which he was entitled to do. On 18 March 2009, pursuant to section 116 of the ADT Act, the Appeal Panel stayed the proceedings before me in regard to this application and the other applications that were the subject of my decision published on 11 November 2008. For the reasons I have already indicated, I remained of the view that it was not appropriate for me to determine application File No 053333 without also determining this application. At my direction, the Registrar wrote to the parties confirming my view. 20On 6 October 2010, the decision of the Appeal Panel was published in regard to the applicant's appeal from my decision of 11 November 2008 (i.e. the decision in regard to the applicant's application that I recuse myself): see McGuirk v University of New South Wales [2010] NSWADTAP 66. The Appeal Panel dismissed the applicant's appeal and also discharged the stay granted on 18 March 2008. 21On 11 November 2010, at my direction, the Registrar wrote to the parties informing them of the directions I had made in regard to the progress of this application and the other applications that were the subject of the decision of the Appeal Panel. As a result of correspondence received from the applicant, on 24 January 2011, I directed the Registrar, to write to the parties to inform them of further directions I had made in regard to the progress of this matter. These directions included a direction that each application (including File No 083019) would be determined on the papers under section 76 of the ADT Act. In a letter dated 25 January 2011, the applicant informed the Registrar that he objected to my dealing with the applications on the papers. I have considered his objections and remain of the view that the matters for determination in this application can be adequately determined in the absence of the parties.

[4]

Issues 22The primary issue in both applications is whether the decision of the respondent is the correct and preferred decision having regard to the relevant facts and the applicable law: see section 63 of the ADT Act. As I have mentioned the decisions the subject of review relate to the following documents: (a)the McCrossin Report and annexures 1, 2, 3, 4, 5, 6 and 10 to that Report; and (b)the 2007 Statement of Claim of Mr Curtin. 23It is not disputed that the onus is on the University to satisfy the Tribunal its decisions are the correct and preferred decisions: see section 61 of the FOI Act. For the reasons set out in Section A and B below, I have found that the decision of the respondent in regard to the McCrossin Report and its annexures should be varied and the decision of the respondent in regard to the Statement of Claim should be affirmed. 24The applicant has also made an application for costs under section 88 of the ADT Act. For the reasons set out in Section C below I have dismissed the applicant's application for costs. 25And finally, the applicant in his submissions (both in writing and orally) asserts that the Tribunal is 'obliged at law to find that one or more officers of the University and its legal representative had failed to exercise in good faith the functions deferred on them by the FOI Act' and by reason of this bring these matters to the attention of the responsible Minister, pursuant to section 58 of the FOI Act. For the reasons set out in Section D below, no action is taken in regard to the assertions made by the applicant.

[5]

The evidence 26In support of its decision, the respondent tendered into evidence a statement of Ms Deborah Gibson ('Ms Gibson'), Head of the Policy Management Unit and Freedom of Information Officer at the University. The first statement, made on dated 15 October 2007, was filed in application File No 053333. She supplemented this evidence with a confidential affidavit that was provided to the Tribunal on a confidential basis prior to the 7 April 2008 adjourned hearing date. A further open statement by Ms Gibson, made on 29 May 2008, was filed in application File No 083019. In making the latter statement, Ms Gibson also referred to her earlier open statement filed in the proceedings that are File No 053333. The applicant had cross-examined Ms Gibson on her earlier statement during the course of the hearing in these earlier proceedings. 27In addition to the confidential statement of Ms Gibson, the respondent provided the Tribunal, on a confidential basis, with a copy of the entire McCrossin Report, including the annexures. 28In her open statement, Ms Gibson explained that the respondent had engaged Ms McCrossin following a resolution of the respondent Council, on 19 April 2004. That resolution was in the following terms: 'That Council requests the Chancellor's Committee and the Presiding Member of the Audit Committee to: 1.appoint an external adviser to co-ordinate issues associated with the Cooperative Research Centre for Eye Research and Technology (CRCERT), Vision Cooperative Research Centre (Vision CRC) and related organisations; 2.provide to Council a summary of the processes followed to date and the processes proposed to be followed in the future concerning legal, financial and personnel matters; 3.convey to the relevant senior officers of the University via the Acting Vice-Chancellor the need to assist the appointed external advisor in any way requested; 4.bring forward to Council a plan of action to expedite the resolution of the relevant issues.' 29Ms Gibson explained that at the time, the respondent was the defendant in two proceedings commenced in the Supreme Court of New South Wales. One proceeding was commenced by the Institute for Eye Research Ltd ('the Institute') (SC Proceedings No. 6128 of 2003) and the other proceeding was commenced by Vision CRC Limited and other related entities (SC Proceedings 50031 of 2004). The proceedings commenced by the Institute arose after the respondent had made a demand on the Institute in regard to its failure to repay money that had been paid to it in error. 30Ms Gibson said that both proceedings referred to mediation by the Court in June 2004 and that both proceedings were settled, on a confidential basis, in February 2005. Ms McCrossin, the Tribunal was informed, ceased to act as a consultant after this date. 31Ms Gibson described Ms McCrossin's engagement by the respondent as that of a 'consultant' in that she was engaged to act as agent for the University. Her responsibilities she said were 'extended to managing litigation and related legal issues' that arose from the University's relationship with the CRCERT and Vision CRC and other related organisations. 32Ms Gibson said that at the suggestion of Ms McCrossin, the respondent engaged the law firm Clayton Utz 'to assist her in her coordination of the legal issues and litigation in which the University was involved.' She went on to say that Clayton Utz provided legal advice and that this advice 'extended to management and financial issues related to the litigation and other legal issues for which they were retained.' Clayton Utz in turn retained counsel 'to provide further legal advice' and Ferrier Hodgson 'to provide expert advice and potential evidence in relation to the said litigation.' 33Ms McCrossin's Report is dated 19 November 2004. The body of the report is 17 pages long and, as already indicated, has 10 annexures attached to it, 7 of which the University claim to be exempt on the ground that they are confidential communications to which legal professional privilege attaches. 34The table of contents to the body of the McCrossin Report is in the following terms: 'BACKGROUND CHRONOLOGY FINDINGS OF FACTUAL MATTERS REFERRED TO IN DRAFT IAR REPORT ON RECOMMENDATIONS ON UNSW PROCESSES FINANCIAL PROCESSES HUMAN RESOURCES PROCESSES AND POLICIES LEGAL FUNCTION - PROCESSES ISSUES SUMMARY RECOMMENDATIONS - CHANGES TO LEGAL FUNCTION OTHER ISSUES ADVICE ON USE OF RESEARCH QUANTUM' 35Under the heading 'BACKGROUND', Ms McCrossin describes what she had been requested to do. She also gives a summary of the contents of the report and how, in her opinion, the report should be dealt with in light of the then pending litigation with Vision CRC. These descriptions, as set out in the disclosed portion of her report are in the following terms: 'As part of my brief I was asked to coordinate a factual investigation into matters the subject of discussion in a draft internal audit report (IAR) submitted to Audit Committee of Council in December 2003 and to report to Chancellor's Committee. This report (which is to be read in the context of the factual analysis outlined in the Clayton Utz advice of August 2004 (Annexure 1) provided to Chancellor's Committee with my report dated 9 August 2004) concludes the reporting on those factual issues (and their implications) which has been capable of being completed to date. This report also: -Summarises and reports on the operation and application of University processes that were relevant to the factual matters this report was investigating. Comments on those processes and options for streamlining existing processes and implementing new ones in the designated areas to better serve the interests of UNSW and its staff in the rapidly changing operational environment in which the University finds itself.' The content of this report in the form it is provided to Chancellor's Committee is subject to legal privilege. Because of the ongoing litigation with Vision CRC it is very important to ensure confidentiality of this report is maintained so that a key basis for asserting privilege over the report is not lost. The risk, particularly if confidentiality is not maintained, is that UNSW will be required to produce this report to the other parties to the litigation on discovery which will be taking place in the legal proceedings early next year. ....' 36In her open statement, Ms Gibson explained that Ms McCrossin Report was prepared for submission to the Chancellor's Committee, who would determine what would be presented to the Council. Ms Gibson said that on this occasion the Committee decided that only the 17-page body of the report would be presented to the respondent Council. 37Ms Gibson said that the respondent Council had received the McCrossin Report during a confidential session of the meeting of Council. She explained that under the Code of Conduct, Council members are expressly prohibited from disclosing information they receive in a confidential session. She also stressed that a very limited number of copies of the McCrossin Report had been copied for circulation to Council members and very senior members of the respondent and that since then there had been no further circulation or disclosure of the Report.

[6]

a) Relevant legislation and legal principles 38Clause 10 of Schedule 1 of the FOI Act 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.' 39In construing this exemption the Tribunal has traditionally applied the common law principles that govern legal professional privilege and not the provisions of the New South Wales Evidence Act 1995 in determining whether a document in exempt under clause 10 of Schedule 1 of the FOI Act: see Director General, Attorney General's Department v Cianfrano (GD) [2006] NSWADTAP 26 at [12]; Howell v Macquarie University [2008] NSWCA 26 and General Manager WorkCover Authority of NSW [2006] NSWCA 84. 40In Fitzpatrick v NSW Office of Liquor and Gaming [2010] NSWADT 72 at [67] and [68], the Tribunal accepted the submissions of the parties that, following the amendments made by Evidence Amendment Act 2007, the test for whether a document would be 'privileged from production in legal proceedings on the ground of legal professional privilege' was now to be determined by the client legal privilege provisions in Division 1 of Part 3.10 of the Evidence Act 1995 and not by the common law of legal professional privilege. I am not persuaded that the amendments to the Evidence Act 1995 have this effect and I have continued to adopt the most recent Appeal Panel decision in this regard: see Chan v Department of Education and Training (GD) [2010] NSWADTAP 7 and SL v University of Sydney [2011] NSWADT 65 at [20]. If I am incorrect in my approach, my findings would have been the same had I applied the provisions of the Evidence Act 1995. 41In Howell v Macquarie University [2008] NSWCA 26 at [48] Campbell JA said the clause 10 exemption 'should be construed without any prior inclination to construe it narrowly, nor any prior inclination to construe it broadly'. At [54], His Honour went on to explain how the Tribunal was to assess the evidence where such an exemption is claimed by an agency: The task of the Tribunal, in reviewing a claim of legal professional privilege made by an agency, is to make up its own mind, on the basis of such information as it has available to it, about whether the matter contained in a document has the characteristics that would make it privileged from production in legal proceedings on the ground of legal professional privilege. 42In Grant v Downs (1976) 135 CLR 674 at 677, Barwick CJ set out the common law principles as to when legal professional privilege will attach to the contents of a documents. These were summarised as follow s: [ ] ... a document which was produced or brought into existence with the dominant purpose of its author, or of the person or authority under whose direction, whether particular or general, it was produced or brought into existence, of using it or its contents in order to obtain legal advice or to conduct or aid in the conduct of litigation, at the time of its production in reasonable prospect, should be privileged and excluded from inspection. 43Subsequently, the High Court held that legal professional privilege was a common law right in that it 'is a rule of substantive law which enables a person to resist the giving of information or the production of documents to a third party which would reveal confidential communications between the person 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': see Daniels Corporation International Pty Ltd and Anor v Australian Competition and Consumer Commission (2202) 213 CLR 543; [2002] HCA 49 (at [9]) per Gleeson CJ, Gaudron, Gummow and Hayne JJ; see also Esso Australia Resources Ltd v Commissioner of Taxation (1999) 201 CLR 49. 44In Trade Practices Commission v Sterling (1979) 36 FLR 244 at pp. 245 - 246 Lockhart J provided a summary of circumstances where legal professional privilege will extend to a document. These circumstances (omitting citations) included the following: '(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)... (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)...' 45Accordingly, privilege extends to copies of documents, or advice that is of a non-legal nature, where the document or advice is given for the dominant purpose of giving legal advice or for contemplated or pending litigation: see Australian Federal Police v Propend Finance Pty Ltd [1996] HCA 3; (1997) 188 CLR 501 at 509, 550 and 597. 46Privilege does not however, attach to all documents prepared by a lawyer on behalf of his/her client. For example, a document prepared by a lawyer, for the purposes of his/her retainer, which addresses policy and administrative matters: see General Manager Workcover Authority of NSW v Law Society of NSW [2006] NSWCA 84. 47Any privilege that does attach to a confidential communication is that of the client, who may expressly or by implication waive that privilege. An implied waiver may arise through the conduct of the client which is in the circumstances inconsistent 'with the maintenance of the confidentiality which the privilege is intended to protect.' see Osland v Secretary to the Department of Justice [2008] HCA 37 at [45] and Mann v Carnell (1999) 201 CLR 1. 48In McGuirk v University of New South Wales [2009] NSWCA 321 at [29]; (2009) 75 NSWLR 224, the Court of Appeal held that documents found by the Tribunal to be exempt under clause 10 of Schedule 1 of the FOI Act could not be released.

[7]

(b) Deletions and annexures in dispute 49The respondent has claimed that the following deletions in the McCrossin Report and annexures thereto contain matter which is exempt under clause 10 of Schedule 1 of the FOI Act: a)page 3:the footnote at the bottom of the page b)page 4:the footnote at the bottom of the page c)page 8:the paragraphs immediately under the heading 'Findings on Factual Matters referred to in the Draft IAR' d)page 9:the last sentence of the paragraph immediately above the heading 'Report on and Recommendations on UNSW Processes' and the material immediately under that heading. e)page 10, 11, 12 & 13:the whole page f)page 14:the paragraphs above the heading 'Legal Function process issues - summary' g)page 17:the first two paragraphs under the heading 'Other Issues' h)page 18:annexures 1 to 6 and 10, including the description of Clayton Utz advice (annexure 1, 6 & 10), Counsel's advice (annexure 2) and Ferrier Hodgson advices (annexure 4 & 5) i)annexures 1, 2, 3, 4, 5, 6 and 10.

[8]

c) Consideration 50The respondent does not contend that all communications of Ms McCrossin, a lawyer but not engaged by the respondent in this capacity, are privileged. It argued that the annexures 1, 2, 3, 4, 5, 6 and 10 were privileged and to the extent the body of the Report made reference to what was contained in these annexues, these references were also privileged. 51The applicant, contended that any privilege that may have attached to the annexures was waived when they were provided to Ms McCrossin to include in her Report and consequently, the references in the body of the Report to these annexures were also waived. 52In my opinion, on the assumption annexures 1, 2, 3, 4, 5, 6 and 10 are privileged, the circumstances in which they were provided to Ms McCrossin did not amount to a waiver. It is clear from the content of the Report (including that for which access has been granted) the documents which make up the annexures in question were provided to Ms McCrossin for a very specific and limited purpose and also on the express understanding that the respondent retained its right, if any, to make a claim of privilege in regard to the annexures and any reference that was made to their content by Ms McCrossin in her Report. Ms McCrossin's retainer was in effect the conduit through which these purported privileged communications were forwarded to the respondent Chancellor Committee and then the Council. That is, the circumstances of the disclosure of these communications to Ms McCrossin can not be described as being inconsistent 'with the maintenance of the confidentiality which the privilege is intended to protect.' see Osland (supra) and Mann (supra). 53Accordingly, the real question for determination is whether the documents that are annexure 1, 2, 3, 4, 5, 6 and 10 are privileged. 54I have examined each of these annexures, which were provided to the Tribunal on a confidential basis. 55On the basis of the content of the following documents and the evidence of Ms Gibson, I am satisfied that the following annexures are privileged in that they came into existence for the dominant purpose of proving the respondent with legal advice in regard to the litigation that was then pending against the respondent: (a) annexure 1 - Clayton Utz advice, dated 12 August 2004 (b) annexure 2 - counsels' advice, dated 14 September 2004 (c)annexure 10 - Clayton Utz advice, dated 28 July 2004 56On the same basis, I am also satisfied that the following annexures are privileged in that t hey came into existence for the dominant purpose of proving the respondent with legal advice in regard to the litigation that was then pending against the respondent: (a)annexure 3 - report of Ferrier Hodgson (undated) (b)annexure 4 - report of Ferrier Hodgson, dated 17 November 2004 57That is, the circumstances in which these 2 annexures came into existence fall within category (e) as described by Lockhart J in Stirling (supra). 58This leaves annexure 5 and 6. 59Annexure 6 is document prepared by Clayton Utz for the respondent, dated 19 November 2004. I am satisfied from its content that this document came into existence for the dominant purpose of providing legal advice to the respondent. While that advice does not relate to the then pending litigation, it does contain advice in regard to another matter referred to in the table of contents to the Report. 60Annexure 5 is a document prepared by Ferrier Hodgson and dated 17 November 2004. While I accept that it was a document prepared on the instructions of Clayton Utz, the contents of the report do not indicate that the report was prepared for the dominant purpose of providing the respondent with legal advice generally or for the purpose of the litigation that was pending against the respondent at that time. I note that the contents of the document do not relate to the matters contained in the document that is annexure 6. The inference from the content of the document that is annexure 5 is that it was a document prepared for the purpose of providing advice to the respondent, from a financial perspective, in regard one of the matters referred to in the table of Contents in the Report. However, the document does contain some material, which in my view is privileged. That material is primarily that which refers to material that is contained in the document that is annexure 4. Accordingly, by reason of this information that to which privilege attaches, the document that is annexure 5 is also an exempt document under clause 10 of Schedule 1 of the FOI Act. As the entirety of the document does not contain information that is privileged (the exempt matter), the question arises as to whether a copy of the document can be provided, under subsection 25(4) of the FOI Act, with the exempt matter deleted. In my view it could be so provided.

[9]

The clause 6 and 7 exemptions 61Clauses 6 and 7 of Schedule 1 of the FOI Act relevantly provide as follows: 6 Documents affecting personal affairs (1)A document is an exempt document if it contains matter the disclosure of which would involve the unreasonable disclosure of information concerning the personal affairs of any person (whether living or deceased). (2) A document is not an exempt document by virtue of this clause merely because it contains information concerning the person by or on whose behalf an application for access to the document is being made. 7 Documents affecting business affairs (1) A document is an exempt document: (a) ... (c) if it contains matter the disclosure of which: (i) would disclose information (...) concerning the business, professional, commercial or financial affairs of any agency or any other person, and (ii) could reasonably be expected to have an unreasonable adverse effect on those affairs or to prejudice the future supply of such information to the Government or to an agency. (2)A document is not an exempt document by virtue of this clause merely because it contains matter concerning the business, professional, commercial or financial affairs of the agency or other person by or on whose behalf an application for access to the document is made. 62The deletions in the body of the McCrossin Report, which the respondent determined to contain information that was exempt under clause 6 and 7 of Schedule 1 of the FOI Act are contained on pages 4, 5, 6, 7 (the entire page), 8 and 9. The deletions on pages 4 to 7 are deletions in the chronology of events. With every deleted event in the chronology there is also a deletion of the relevant date. The basis on which the dates were deleted was not explained. On their own they appear not to be controversial. 63In Commissioner of Police v District Court of New South Wales (1993) 31 NSWLR 606, (Perrin's case) , at 625, Kirby P said that 'personal affairs' in clause 6 meant the composite collection of activities personal to the individual concerned. This may include the names of individuals. However, where the individuals named are named in the context of their respective position or responsibilities as an employee of a government agency, this alone will not give rise to the personal affairs exemption. 64At the same time, information concerning an assessment of capacity or work performance of an employee of an agency can fall within the clause 6 exemption: see Department of Social Security v Dyrenfurth (1988) 15 ALD 232 and Humane Society International Inc v National Parks and Wildlife Services [2000] NSWADT 133 at [21]. 65The purpose of the clause 7 exemption is to protect information concerning business which could either affect a business adversely or which could prejudice the future supply of information to the agency. That is, the information must first and foremost 'concern' the business, professional, commercial or financial affairs of an agency or another person. It is then a question as to whether the disclosure of that information could reasonably be expected to have the prescribed unreasonable adverse effect. In assessing the latter, 'an objective view must be brought to bear on an agency's claim that the release will have an adverse impact': see Neary v State Rail Authority [1999] NSWADT 107 at [35]. Factors relevant to determining whether disclosure would have an unreasonable adverse effect includes the age of the information: see Watt v Forests NSW [2007] NSWADT 197 at [128] and Mcguirk v University of New South Wales [2010] NSWADT 128. 66I have examined the full McCrossin Report provided to the Tribunal on a confidential basis and I am satisfied that the contents of those deletions, which concern the personal affairs of a person (other than the applicant), are exempt under clause 6 of Schedule 1 of the FOI Act. 67I am also satisfied, in part, that the deletions, which concern the business or financial affairs of the respondent or another entity, are exempt under clause 7 of Schedule 1 of the FOI Act. In regard to those deletions in the chronology on pages 3 to 7 (inclusive) I reiterate my findings in regard to the deleted dates, which in my view are not in themselves exempt and disclosure of this information would not disclose any exempt matter. Within the deletions on these pages, there are a few minor factual matters, concerning business and financial affairs, which would appear to be matters within the public domain, or ordinarily made available as part of general reporting requirements. These matters, of which there are not many, together with the dates are not exempt and should also be disclosed. 68On the basis of my findings, being satisfied that the deletions, which the respondent claimed to be exempt under clause 6 and 7 deletions Schedule 1, the next issue is whether, in determining the correct and preferred decision, the Tribunal should exercise its discretion and determine that the deleted information should nevertheless be disclosed: see University of New South Wales v McGuirk [2006] NSWSC 1362 per Nicholas J at [104]. This discretion has been referred to as the 'override' discretion. 69In Cianfrano v Director-General , Premiers Department [2007] NSWADT 216 the President noted that there should be strong grounds justifying the exercise of the override discretion to grant access to a document that is found to be exempt. At [27] the President set out some of the factors relevant to the exercise of the discretion as follows: -whether the exempt matter was, by other means, in the public domain, -whether the circumstances that have made the exempt matters sensitive at the time it was refused remain current or significant, -the nature of the Government activity under scrutiny, and the extent of public or community concern or interest in having a fuller knowledge of that activity, -the public interest in an informal debate on issues of significance to the community, -whether there were adverse consequences for the proper administration of government, and their extent, -whether any adverse consequence is remote or innocuous. 70In my view, having regard to all the material before the Tribunal, there are no strong grounds justifying the exercise of the override discretion.

[10]

Conclusions 71In summary, for the reasons set out above, I am satisfied that the following deletions in the McCrossin Report and the annexures thereto are exempt on the grounds that they are privileged: (a)annexure 1, 2, 3 , 4, 6 and 10, and b)the deletion on page 3, page 4 (other than the dates), page 5 (other than dates), page 6 (other than the dates and any factual matter that is in the public domain), page 7 (other than the dates and any factual matter that is in the public domain), page 8, page 9 (other than the deletion below the heading on the middle of the page), page 10 (other than the deletion above the heading on that page), page 11, page 12, page 13 (other than the deletion under the second heading on that page), page 17 and page 18 (other than the description of annexure 5). 72In regard to annexure 5, I have found this document not to be exempt. However, as I have indicated above, the document does contain within it matter which is exempt under clause 10 of Schedule 1 of the FOI Act. I have also found that, pursuant to subsection 25(4) of the FOI Act, a copy of this document, with the exempt matter deleted should be provided to the applicant. 73This leaves the deletions above the heading on page 10 and the deletions on page 14, 15 and 16. The respondent has claimed that each of these deletions is exempt under clause 10. In light of my findings concerning annexure 5, the deletion in the body of the report, referrable to this document are only exempt to the extent they would disclosure a privileged communication that is contained in annexure 5 or one of the other exempt annexures. In regard to the remaining deletions, it is not apparent from the content of these that they contain matter the disclosure of which would disclose information to which privilege is attached. The information is of an administrative and policy nature and appears to have been prepared primarily by Ms McCrossin. I also note reference is made in these deletions to the annexures which have been disclosed to the applicant. Otherwise I have not examined the content of these deletions in detail. In the event the deletions do contain information to which privilege is attached, this information should, pursuant to subsection 25(4) of the FOI Act, be deleted in the copy that is provided to the applicant.

[11]

B:The Statement of Claim of Mr Curtin 74The respondent contends that the Statement of Claim of Mr Curtin is an exempt document under clause 6 and 11 of Schedule 1 of the FOI Act. The terms of clause 6 are set out above. Clause 11 provides as follows: 11 Documents relating to judicial functions etc A document is an exempt document if it contains matter the disclosure of which would disclose: (a) matter relating to the judicial functions of a court or tribunal, or (b) matter prepared for the purposes of proceedings (including any transcript of the proceedings) that are being heard or are to be heard before a court or tribunal, or (c) matter prepared by or on behalf of a court or tribunal (including any order or judgment made or given by the court or tribunal) in relation to proceedings that are being heard or have been heard before the court or tribunal. 75As noted by Anne Cossins in her text Annotated Freedom of Information Act New South Wales (the LBC Information Services 1997), at [111.2], the exemption does not contain a public interest test, nor is an agency required to show that a particular detrimental effect could be expected to arise, if a document falling within one of the 3 categories in clause 11 is disclosed. 76Accordingly, the issue in regard to the Statement of Claim is whether it is a document falling within paragraph 11(b) as contended by the respondent. 77I have examined the Statement of Claim, which the respondent provided to the Tribunal on a confidential basis, and I am satisfied that it was prepared for the purpose of proceedings before the Supreme Court. I am also satisfied that it contains matter concerning the personal affairs of persons other than the applicant. 78In a statement dated 12 January 2009, Ms Fleming, an assistant solicitor employed by the respondent, stated that, at the time she made her statement, the proceedings, which were initiated as a result of the Statement of Claim, were still pending before the Supreme Court. The applicant, nor the respondent have provided any further information to the Tribunal on the status of the proceedings. If the proceedings are no longer pending and have been concluded, then the exemption in clause 11(b) would appear to be no longer applicable. 79In my view, it is not necessary for me to make a finding in regard to the clause 11(b) exemption as I am satisfied on the material before the Tribunal that the document is exempt under clause 6 of schedule 1 of the FOI Act. That is, I am satisfied that the disclosure of the document would involve the unreasonable disclosure of the personal information concerning the personal affairs of Mr Curtin and others named in the claim. It is well accepted that the question as to whether release of a document would involve an unreasonable disclosure 'involves a consideration of all of the circumstances of the case and a balancing of relevant interests': see Humane Society International (supra) at [21]. 80In my view, for the purpose of access under the FOI Act, where a document contains information concerning matters that are primarily personal to the individual to whom the information relates, on balance, the public interest lies in the non disclosure of the information. The fact that the information, for which access is sought, is contained in a Statement of Claim filed in a court, should not of its own give rise to a different conclusion. 81The applicant contended that the issues raised in the Statement of Claim were matters of public concern, as they raised issues of importance about the functions and administration of the respondent. In my view the content of the claim is not of this nature. As I have said, it concerns matters personal to persons other than the applicant. On the material before the Tribunal, there is no evidence that the individuals to whom the personal information relates agreed (even impliedly) to this information being disclosed. The respondent made reference to the Supreme Court Practice Note (SC Gen 2), which makes provision for access to Court Files by third parties. Under that Practice Note provision is made for access to pleadings where proceedings have concluded. That access is subject to any order made by the Court that the pleadings or portions there of should not be disclosed. Other than noting that the Court has a procedure for granting access to third praties to documents such as a Statement of Claim, in my view it is of limited assistance in determining where the public interest lies for the purpose of this application. 82Having found that the Statement of Claim is exempt under clause 6 of Schedule 1 of the FOI Act, I have also found, on the material before the Tribunal, that there are no strong grounds justifying the exercise of the override discretion as described by Nicholas J in University of New South Wales v McGuirk [2006] NSWSC 1362 at [104]. Accordingly, I find that the decision of the respondent is the correct and preferred decision.

[12]

C:Costs 83The Tribunal has no inherent power to award costs. As mentioned above, its power to award costs is set out in s.88 of the Administrative Decisions Tribunal Act 1997 (the ADT Act), which relevantly provides: 88 Costs (1) Each party to proceedings before the Tribunal is to bear the party's own costs in the proceedings, except as provided by this section. (1A) Subject to the rules of the Tribunal and any other Act or law, the Tribunal may award costs in relation to proceedings before it, but only if it is satisfied that it is fair to do so having regard to the following: (a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings by conduct such as: (i) failing to comply with an order or direction of the Tribunal without reasonable excuse, or (ii) failing to comply with this Act, the regulations, the rules of the Tribunal or any relevant provision of the enactment under which the Tribunal has jurisdiction in relation to the proceedings, or (iii) asking for an adjournment as a result of a failure referred to in subparagraph (i) or (ii), or (iv) causing an adjournment, or (v) attempting to deceive another party or the Tribunal, or (vi) vexatiously conducting the proceedings, (b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings, (c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law, (d) the nature and complexity of the proceedings, (e) any other matter that the Tribunal considers relevant. (2) The Tribunal may: (a) determine by whom and to what extent costs are to be paid, and (b) order costs to be assessed on a basis set out in Division 11 of Part 3.2 of the Legal Professional Act 2004 or on any other basis. (3) However, the Tribunal may not award costs in relation to proceedings for an original decision unless the enactment under which the Tribunal has jurisdiction to make the decision provides for the awarding of costs. (4) In this section, costs includes: (a) costs of or incidental to proceedings in the Tribunal, and (b) the costs of or incidental to the proceedings giving rise to the application, as well as the costs of or incidental to the application. 84As can be seen from the terms of subsection 88(1), the primary rule is that each party to proceedings in the Tribunal bears its own costs. There is an exception to this rule where the Tribunal 'is satisfied that it is fair to do so.' If the Tribunal is so satisfied, as required by subsection 88(1A), it remains within the discretion of the Tribunal to make an award of costs. 85The applicant's application for costs was made in regard to the proceedings that are File No 053333. They were part of the applicant's 41 page written submissions filed on 15 October 2007. At the time the submissions were made, section 88 of the ADT Act provided for an award of costs only in 'special circumstances warranting an award of costs'. The current form of section 88 has been in operation since 1 July 2009. 86As the applicant has not withdrawn his application for costs, or amended his written submissions, I am required to consider his submissions in the context of section 88 in its current. 87In reliance of a decision of Judicial Member Montgomery in McGuirk v University of New South Wales [2006] NSWADT 81 at [13] and [28], the applicant contended that in determining whether to make an award of costs the Tribunal should have regard to the conduct of the respondent in these proceedings (i.e. the application that is File No 053333) and other proceedings (including appeals) in this Tribunal and otherwise, in which he and the respondent were parties. In his written submissions, the applicant set out, in detail, the various applications for review he made in regard to decisions of the respondent under the FOI Act (other than the decision the subject of review in these proceedings) and appeals (including appeals to the Supreme Court) from other decisions of the Tribunal. Emphasis was given to those proceedings in which an application for costs had been made and at [206] of his submissions the applicant concluded by saying: '... [the] only proper course for the Tribunal to take is to make an award of costs in favour of Mr McGuirk jointly and severally against the University of New South Wales and its counsel, Mr Peter Singleton, in the amount of $24,000, this amount being a little more than half of one percent of the total amount expended by the University of New South Wales on legal fees in 2005, the year in which Mr McGuirk made his application to the University which gave rise to these proceedings.' 88In my view, the arguments of the applicant are misconceived and do not provide any support in a finding that the primary rule, as prescribed in subsection 88(1) of the ADT Act, that each party bear its own costs should be departed from in these proceedings. For example, he has not pointed to any conduct, by the respondent or its legal representative, in these proceedings, which would fall within the circumstances set out in subsection 88(1A) of the ADT Act. The concerns expressed by the applicant are of a much broader nature and not matters for this Tribunal. 89Nor am I persuaded by the applicant's argument that the Tribunal can have regard to the conduct of the respondent in other proceedings, unrelated to these proceedings, in determining whether an order for costs should be made in these proceedings. In my view, the ordinary meaning of the word 'proceeding', as contained within the context of section 88, does not stretch that far. 90Finally, in my view, the amount the applicant seeks to recover as costs are brought on an improper basis. In exercising its power to award costs under section 88 of the ADT Act, the Tribunal can only make an award of costs in regard to a party's legal costs and other costs directly attributable to a parties prosecution of its application, such as filing fees, witness expenses and expert reports. The applicant has not identified any such costs. 91Accordingly, the applicant's application for costs is dismissed.

[13]

D:Section 58 of the FOI Act 92Section 58 of the FOI Act provides: 58 Tribunal may report improper conduct If, as a result of a review application, the Tribunal is of the opinion that an officer of an agency has failed to exercise in good faith a function conferred or imposed on him/her by or under that Act, the Tribunal may take such measures as it considers appropriate to bring the matter to the attention of the responsible Minister for the agency. 93Again the applicant's submission concerning section 58 of the FOI Act, relate to the application that is File No 053333. These submissions were also included in the written submissions he filed on 15 October 2007 and have not been withdrawn. Applications of a similar nature have been made by the applicant in other proceedings. 94In his submissions the applicant made a number of general assertions about the conduct of the respondent, the conduct of the legal representative of the respondent and what the Tribunal was 'obliged' to do. It is unnecessary to repeat these other than to say, in my view, they were not made on a proper basis. More particularly, the applicant failed to point to any specific conduct of an officer of the respondent, which he alleged was not exercised in good faith when that officer was exercising his/her function under the FOI Act when dealing with his FOI request, the subject of this application. It is only the conduct of an officer of an agency, which may be the subject of referral under section 58 of the FOI Act. In the case of the application that is File No 053333, the relevant officers were Ms Gibson, who, on 16 August 2005, made the initial determination and Mr Michael Milne who, on 13 September 2005, made the internal review determination. The fact that their decision was varied does not mean that their conduct in dealing with the applicant's FOI request falls within section 58 of the FOI Act. Accordingly, I make no further findings in regard to the applicant's assertions. Had there been a basis to make findings as asserted by the applicant, natural justice would require the Tribunal to give the officers concerned an opportunity to respond to the assertions and these would be dealt with independently of the applicant's application for review.

[14]

Conclusions and Orders 95In light of my findings in regard to the decisions of the respondent concerning the two documents in dispute the appropriate orders are as follows: (a) the decision of the respondent in regard to the McCrossin Report and the annexures thereto is varied as set out in paragraphs 71 to 73 above, and (b) the decision of the respondent in regard to the Statement of Claim, served on the respondent by lawyers acting for Mr Curtin in or around October 2007, is affirmed. 96In addition to this there should be an order dismissing the applicant's application for costs.

[15]

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 July 2011

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