McGuirk v University of New South Wales

(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." 8 The common law principle in relation to the waiver of legal professional privilege is set out in Mann v Carnell (1999) 201 CLR 1, where the High Court stated: "28. At common law, a person who would otherwise be entitled to the benefit of legal professional privilege may waive the privilege. It has been observed that "waiver" is a vague term, used in many senses, and that it often requires further definition according to the context. Legal professional privilege exists to protect the confidentiality of communications between lawyer and client. It is the client who is entitled to the benefit of such confidentiality, and who may relinquish that entitlement. It is inconsistency between the conduct of the client and maintenance of the confidentiality which effects a waiver of the privilege. Examples include disclosure by a client of the client's version of a communication with a lawyer, which entitles the lawyer to give his or her account of the communication, or the institution of proceedings for professional negligence against a lawyer, in which the lawyer's evidence as to advice given to the client will be received.

29. Waiver may be express or implied. Disputes as to implied waiver usually arise from the need to decide whether particular conduct is inconsistent with the maintenance of the confidentiality which the privilege is intended to protect. When an affirmative answer is given to such a question, it is sometimes said that waiver is "imputed by operation of law". This means that the law recognises the inconsistency and determines its consequences, even though such consequences may not reflect the subjective intention of the party who has lost the privilege. Thus, in Benecke v National Australia Bank , the client was held to have waived privilege by giving evidence, in legal proceedings, concerning her instructions to a barrister in related proceedings, even though she apparently believed she could prevent the barrister from giving the barrister's version of those instructions. She did not subjectively intend to abandon the privilege. She may not even have turned her mind to the question. However, her intentional act was inconsistent with the maintenance of the confidentiality of the communication. What brings about the waiver is the inconsistency, which the courts, where necessary informed by considerations of fairness, perceive, between the conduct of the client and maintenance of the confidentiality; not some overriding principle of fairness operating at large."

(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.

39 The evidence provided by Ms Harris is of little value in resolving this issue. I agree with Mr McGuirk that the University could have addressed the issue by summonsing Professor Dutton to appear before the Tribunal. It did not do so. There is no basis on which I could conclude who provided the copy of the Walker-Bell advice to Professor Dutton or on what terms it was provided. There is no basis on which I could conclude whether or not it was provided with the approval of the Chancellor of the University.

40 I accept the evidence that the University Council has not passed any resolution to waive legal professional privilege over the Walker-Bell advice or authorised any other person to do so. However, I do not accept the argument that the only mechanism by which such waiver could be effected is by a resolution of the Council. In my view, if in fact the Walker-Bell advice given to Professor Dutton was given with the approval of the Chancellor of the University, that could in some circumstances be sufficient to waive the legal professional privilege that attaches to the document. I am unable to finally determine this issue. In the circumstances, I am not satisfied that the University has discharged the onus placed on it." 14 Thus, the Tribunal Member made factual findings firstly, that the University Council had not passed any resolution to waive the legal professional privilege, nor had it authorised any person to do so; secondly, it was unable to conclude who provided the Walker/Bell advice to Professor Dutton; and thirdly, it was unable to conclude whether or not it was made available with or without the authority of the Chancellor.

The Appeal Panel 15 The University's main point upon appeal to the Appeal Panel was that the privilege attaching to the advice belonged to the University, and that only the University, as distinct from an individual member of Council, could waive the privilege. According to the University, as there had been no Council resolution waiving privilege or authorising anyone else to do so. The privilege had not been waived. Of course, it is the client who may waive legal professional privilege over the legal advice.

(i) The University of New South Wales Act and By-law 16 The function of the University, its Council, its Chancellor and its Vice Chancellor are primarily established by the University of New South Wales Act 1989 (NSW) and secondly, by the University of New South Wales By-law 2005 (NSW). 17 The University is a body corporate and possesses the powers incidental to a body corporate pursuant to s 5 of the University of New South Wales Act 1989. The governing authority of the University is the Council - s 8. The Council consists of several individuals including the Chancellor and the Vice-Chancellor - s 9. 18 The functions of the Council are set out in s 15(1A):

(a) acts for and on behalf of the University in the exercise of the University's functions, and

(b) has the control and management of the affairs and concerns of the University, and

(c) may act in all matters concerning the University in such manner as appears to the Council to be best calculated to promote the object and interests of the University." 19 Section 16 gives the Council power to delegate any of its functions, except the delegation power, to any authority or officer of the University: "The Council may, in relation to any matter or class of matters, or in relation to any activity or function of the University, by resolution, delegate all or any of its functions (except this power of delegation) to any member or committee of the Council or to any authority or officer of the University or to any other person or body prescribed by the by-laws." 20 Clause 4 of the University of New South Wales By-law 2005 states: "Chancellor and Deputy Chancellor (1) The Chancellor and Deputy Chancellor, by virtue of their offices, are members of: (a) every committee constituted by any by-law or any resolution of the Council; and (b) every board and faculty in the University. (2) The Chancellor may preside at any meeting of any such committee, board or faculty and has all the rights and powers of the presiding member of any such committee, board or faculty. (3) … (4) This clause has effect despite any other clause of this By-law." 21 Clause 5 of the University of New South Wales By-law 2005 states:

(1) The Vice-Chancellor has the duty of promoting the interests and furthering the development of the University.

(2) The Vice-Chancellor, by virtue of his or her office, is a member of: (a) every committee constituted by any by-law or rule or any resolution of the Council, and

(b) every board and faculty in the University. (3) The Vice-Chancellor may preside at any meeting of any such committee, board or faculty and has all the rights and powers of the presiding member of any such committee, board or faculty.

(4) Despite subclauses (2) and (3), the Vice-Chancellor is not to be a member of the audit committee of the University if the Council so determines.

(5) While a determination of the Council under subclause (4) remains in force, the Vice-Chancellor may attend any meeting of the audit committee of the University but only as an observer.

(6) The Vice-Chancellor is, under the Council and subject to this By-law and the rules and any resolution of the Council: (a) to manage and supervise the administrative, financial and other activities of the University, and

(b) to consult with and advise the Academic Board, and all other University boards, faculties, committees, professors and heads of departments, and

(c) to supervise the discipline of the University, with power to impose penalties for breach of discipline or for misconduct of any kind, and

(d) to give effect to this By-law and the rules and to any regulations or orders made, or to any resolution or report passed or adopted, by the Council, and

(e) to have such functions of the Council as the Council may, from time to time, delegate to the Vice-Chancellor. (7) Nothing in this clause affects the precedence or authority of the Council, the Chancellor or the Deputy Chancellor.

(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.

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.

(ii) Expertise of the Tribunal Member 28 Counsel for Mr McGuirk referred to passages of the transcript where Professor Blake, a Member of the Appeal Panel, commented: "That is certainly not my experience. That in fact chancellors and vice chancellors have a great deal of implied authority and daily are making decisions in terms of the day to day running of the university. And I would have thought whether or not to release the documents would be very much within the normal discretion of the chancellor and would not be dependent on a resolution. Now it would be an extraordinary legalistic university that only gave the chancellor power pursuant to a resolution." 29 Counsel for Mr McGuirk submitted that the Appeal Panel was entitled to draw upon Professor Blake's expertise and should have considered and averted to it in its reasons and by failing to do so erred in law. 30 The Appeal Panel is not bound to rely upon the expertise and general comments of one of its members. Nor is it mandatory for reference to be made to comments of the Tribunal Member during the hearing if they do not form the basis of its decision. There is no error of law.

(iii) The overriding discretion issue 31 Mr McGuirk's Counsel submitted that the Appeal Panel should have exercised its discretion under s 63 of the ADT Act and it did not do so. Counsel for the University submitted that Mr McGuirk should have raised the issue with the Appeal Panel and did not do so. 32 Section 63 of the ADT Act 1997 (NSW) provides:

(1) In determining an application for a review of a reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:

b) any applicable written or unwritten law. (2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant enactment on the administrator who made the decision.

(3) In determining an application for the review of a reviewable decision, the Tribunal may decide: (a) to affirm the reviewable decision, or

(c) to set aside the reviewable decision and make a decision in substitution for the reviewable decision it set aside, or

(d) to set aside the reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal." 33 In University of New South Wales v Gerard Michael McGuirk [2006] NSWSC 1362 Nicholas J stated that in his opinion s 63 of the ADT Act provides the Tribunal with a discretion to order access to be given to documents which are exempt documents under the FOI Act if it decides that to do so is the correct and preferable decision with regard to the material then before it. Prior to this decision, there was a divergence of views in the Tribunal on the interpretation of s 63. His Honour overruled the decision of the ADT expressed in Neary v the Treasurer NSW [2002] NSWADT 261 and preferred the position adopted by the Tribunal in Mangoplah v Pastoral Co Pty Ltd v Great Southern Energy [1999] NSWADT 93 at [102]-[103]. Hence the Appeal Panel has a discretion to order access to be given to documents which are exempt documents under the FOI Act. 34 While Mr McGuirk did not address the overriding discretion issue, the Tribunal did not do so either. I accept that the obligations of the Appeal Panel under s 63 were not clear when Mr McGuirk appeared before it. This obligation under s 63 was clarified in the subsequent decision of Nicholas J in McGuirk. The Appeal Panel did not address the overriding discretion issue and Mr McGuirk should have been given the opportunity to do so. 35 The appeal is upheld. The decision of the Appeal Panel dated 22 August 2006 is set aside. The matter is remitted to the Appeal Panel for determination according to law. 36 Costs are discretionary. Costs normally follow the event. The defendant is to pay the plaintiff's costs as agreed or assessed.

(2) The decision of the Appeal Panel dated 22 August 2006 is set aside.

(3) The matter is remitted to the Appeal Panel for determination according to law.

(4) The defendant is to pay the plaintiff's costs as agreed or assessed. **********

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