McGuirk v University of New South Wales

McGuirk v University of New South Wales - [2007] NSWSC 806 - NSWSC 2006 case summary — Zoe

[6]

(footnotes omitted) 9 Mr McGuirk had a copy of a document in his possession which contained the heading "Can the Council appoint or conduct its own inquiries into the conduct of an academic as a basis for the institution or maintenance of disciplinary procedures against that academic?" The words "Extract only" followed by paragraphs 17 to 21 appear to be an extract from the Walker/Bell advice. 10 It is common ground that Mr McGuirk had adduced sufficient evidence to raise a prima facie case of waiver and that it was the University which had the burden of proving that it had not waived its privilege over the advice. 11 The University furnished evidence on this issue, namely statements of Ms Melanie Harris who is the executive Chancellor of the University and Mr John Daniel Encel who is the Research and Policy Officer in the Secretariat Services Department of the University. There was some dispute before me as to what factual findings were made by the Tribunal in relation to these two witnesses so I will refer to those findings. 12 At [31], the Tribunal Member summarised the evidence of Ms Harris. According to the Tribunal Member Ms Harris stated that she had been advised by the Vice Chancellor that he had queried with the previous Chancellor, Dr Yu, who had advised him that he could not recall having authorised or purported to authorise the release of the Walker/Bell advice. 13 The Tribunal Member stated at [32], [39] and [40]: "32 …Mr Encel states that the Walker-Bell advice was tabled at a confidential special meeting of Council on 10 July 2002. The then-Chancellor, Dr Yu, stressed that the Walker-Bell advice was confidential. Mr Encel further states that he has perused the electronic and paper minutes of Council for the period from July 2002 to June 2005 (inclusive) and has ascertained that Council has not passed any other resolution with respect to this advice. It has never resolved to waive legal professional privilege over this advice or authorised any other person to do so. Several documents that purport to be minutes of Council meetings are in evidence. None of these documents suggest that such a resolution was ever passed.

[24]

(8) …" 22 Mr McGuirk submitted that there is nothing in the by-law to suggest that the Chancellor and Vice Chancellor are in any different position to the other when it comes to the waiver of privilege in relation to an advice given to the University Council. According to Mr McGuirk, given that the Chancellor presides over Council meetings, and the Vice Chancellor's rights and powers vis a vis Council does not affect the precedence and authority of the Council, the Chancellor, and the Deputy Chancellor, it must follow that the Chancellor had the authority, regardless of the fact that Council itself had not taken a position on waiver. 23 Mr McGuirk further submitted that a distinction needs to be drawn between circumstances in which the Council expressly states or determines that there is to be no waiver, and where no official of Council has express power to waive, or where the Council makes no determination. According to Mr McGuirk, the more significant fact is that the Council had left it to the Chancellor and another member of the Council to obtain advice for the Council. Mr McGuirk further submitted that this task was left in the Chancellor's hands provided strong evidence that the Chancellor was in control of the issue. 24 The University submitted that the Council could have passed a resolution conferring authority on the Chancellor to waive privilege. This might have been done in a general manner (for example, by a resolution conferring on the Chancellor power to waive privilege in all cases) or in a specific manner (for example, by a resolution conferring on the Chancellor power to waive privilege over the Advice). The University further submitted that no such resolution, general or specific, was passed and accordingly, the Chancellor did not have power to waive privilege. 25 At [25]-[26] the Appeal Panel held: "25. We return to the critical passage in the Tribunal's decision where the Judicial Member said that he did not accept "the argument that the only mechanism by which such waiver could be effected is by a resolution of the Council." We agree that there would be no need for a resolution if a person representing the 'directing mind or will' of the University has waived the privilege. However, the Chancellor is not in the same or a similar position to the managing director or a senior officer of a company. While the University is a body corporate, the Chancellor is merely a member of the Council who presides at meetings of the Council and is a member of every committee, board and faculty of the University.

[25]

26 We are satisfied that the Tribunal erred when it held that if the advice given to Professor Dutton was given with the approval of the Chancellor, that could in some circumstances be sufficient to waive the legal professional privilege that attaches to the document. There are no circumstances of which we are aware, other than the passing of a resolution by Council, that would be sufficient to give the Chancellor authority to waive privilege…" 26 The Act and By-laws establish the Council as the governing body of the University and the Vice Chancellor as the principal executive officer of the University. The Chancellor's roles are to chair the council and various committees and boards. The Council itself has power to make decisions for the University. The Council would have power to waive the University's privilege over the Walker/Bell advice. The Vice Chancellor also has power (subject to decisions of the Council) to make decisions for the University. He would have power to waive privilege over legal advice received by the University unless to do so would be contrary to a decision of the Council. To waive privilege would have been contrary to a decision of the Council. The Chancellor is not given any statutory power to act for the University or, particular, to waive the University's privilege. It does not follow that the power to chair meetings empowers the Chancellor to make any decisions on behalf of the University. 27 The Chancellor's powers are limited to those defined in the University of New South Wales Act and University of New South Wales By-law. The Council did not waive legal professional privilege on the Walker/Bell advice. The Chancellor did not have the statutory powers nor did he have Council authority to waive legal professional privilege. There was no inconsistency between the conduct of the Council and the maintenance of confidentiality of the Walker/Bell advice. There was no express or implied waiver of legal professional privilege over the Walker/Bell advice. It is my view that the Appeal Panel decision is correct. There is no error of law.

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