McGuirk v University of NSW

Chen v University of NSW [2008] NSWADT 244 Chen v University of New South Wales (No 3) [2009] NSWADT 305 Chen v University of New South Wales (No 4) [2009] NSWADT 320 CASES CITED: McGuirk v University of New South Wales [2005] NSWADT 113 McGuirk v University Of New South Wales; University Of New South Wales v McGuirk [2009] NSWCA 321 University of New South Wales v Gerard Michael McGuirk [2006] NSWSC 1362 University of New South Wales v McGuirk (No 1) (GD) [2005] NSWADTAP 65

APPLICANT In person REPRESENTATION: RESPONDENT P Singleton, barrister

1.The decisions under review are set aside. ORDERS: 2.Access is granted to all of the documents that are the subject of these applications, with the names and addresses of each of the complainants being deleted and replaced, separately for each complainant, by suitable letters of the alphabet so as to maintain consistency throughout the documents. No other deletions are to be made. These orders are to take effect after 28 days of these reasons. 3 There shall be no orders as to the costs.

1 Mr McGuirk commenced these proceedings pursuant to the provisions of the Freedom of Information Act 1989 ("the FOI Act") seeking review of a decision by the respondent in relation to certain documents that he sought under that legislation. He made two applications. The first application sought access to the following reports: (a) Report of Professor McLachlan dated 15 April 2002 ("the McLachlan Report"); (b) Report of Professor Ingleson dated 15 April 2002 ("the Ingleson Report"); (c) Report of Professor Niland dated 17 April 2002 ("the Niland Report"); (d) Report of Professor Deane dated 17 March 2003 ("the Deane Report"); (e) Report of Deputy Vice-Chancellor Wainwright dated 20 November 2003 ("the Wainwright Report"); and (f) Report of Vice-Chancellor Hume 23 December 2003 ("the Hume Report").

2 Mr McGuirk's second application sought access to the following reports: (g) Report of Professor Dowton dated 3 April 2002 ("the Dowton Report"); and (h) Report of Mr Hungerford QC dated 9 June 2004 ("the Hungerford Report").

3 These matters have been the subject of previous decisions of this Tribunal and the NSW Supreme Court. The background to the matters is set out in earlier decisions: see McGuirk v University of New South Wales [2005] NSWADT 113; University of New South Wales v McGuirk (No 1) (GD) [2005] NSWADTAP 65; University of New South Wales v Gerard Michael McGuirk [2006] NSWSC 1362.

4 In his decision in University of New South Wales v Gerard Michael McGuirk [2006] NSWSC 1362, Nicholas J stated the essential facts as follows: "4 Between September 2001 and February 2004, the plaintiff received a number of complaints regarding Professor Bruce Hall, Professor of Medicine at its Southwestern Sydney Clinical School and Director of the Division of Medicine at Liverpool Hospital. Reports in respect of those complaints were written by Professors Dowton, McLachlan, Ingleson, Niland, Deane, Wainwright and Hume, by an independent inquiry chaired by Sir Gerard Brennan, and by the Hon. Mr B C Hungerford QC (the Hall reports). All of the Hall reports have been published on the internet website of the plaintiff, but in a form edited (or "de-identified") to remove details that would identify complainants against Professor Hall and others, and to exclude certain personal information. 5 On 20 June 2004 the defendant made application under s 17 FOI Act to the plaintiff for access to unedited copies of those of the Hall reports which were the reports of Professors McLachlan, Ingleson, Niland, Deane, Wainwright and Hume. He made a similar application on 16 September 2004 for access to unedited copies of the reports of professor Dowton and of Mr Hungerford QC. He was provided with the reports of professors Niland and Hume. The plaintiff declined to provide the other reports, and asserted they were exempt from production under various provisions of the FOI Act. … 25 The application before the Tribunal was for review of the determination to refuse access to the unedited material in the Hall reports which could identify complainants and which also consisted of personal information about other persons on the basis that they were exempt documents under Sch 1, cl 20(1)(d) and cl 6(1) respectively.

26 In short, the plaintiff's case was that the reports were exempt documents and, accordingly, in the exercise of its discretion under s 25(1)(a) it was entitled to refuse access to them. The Hall reports were before the Tribunal in edited and unedited versions."

5 Mr McGuirk does not seek to obtain any personal information contained in the documents.

6 The matters have been remitted for redetermination: University of New South Wales v Gerard Michael McGuirk [2006] NSWSC 1362.

7 Following the remittal for redetermination, the matter was relisted and each of the parties has made further submissions. Submissions have also been made in light of the Court of Appeal decision in the matter of McGuirk v University Of New South Wales; University Of New South Wales v McGuirk [2009] NSWCA 321.

8 Since that time, a relevant decision has been handed down in the matter of Chen v University of New South Wales (No 4) [2009] NSWADT 320 ("Chen (No 4)").

Chen (No 4). 9 In Chen (No 4) the applicant commenced proceedings pursuant to the FOI Act seeking a review of a decision by the Respondent refusing access to certain documents sought by the Applicant. It is my understanding that the documents sought by the applicant in Chen (No 4) are the same documents that are the subject of these proceedings.

10 In Chen (No 4) Judicial Member Wilson made the following orders: 1.The decision under review is set aside in so far as it concerns the documents within the 8 categories of documents under review and the following determination, orders and directions are substituted therefore 2.Access is granted to all of the documents contained within Documents 1 and 2 with the names and addresses of each of the makers of the original protected disclosures, save for the applicant's name and address, being deleted and replaced, separately for each complainant, save the applicant, by suitable letters of the alphabet so as to maintain consistency throughout the documents. No other deletions are to be made. 3.Access is granted to all of the documents contained within Document No. 3 with the names and addresses, where occurring, of each of the makers of the original protected disclosures being deleted and replaced, separately for each complainant, by suitable letters of the alphabet so as to maintain consistency throughout the documents. No other deletions are to be made 4. Access is granted to all of the documents contained within Documents 4, 5, 6, 7 and 8 with the names and addresses, where occurring, of each of the makers of the original protected disclosures being deleted and replaced, separately for each complainant, by suitable letters of the alphabet so as to maintain consistency throughout the documents. No other deletions are to be made 5.For the purposes of giving effect to this determination the addresses of the makers of the original protected disclosures shall include postal, residential, business, employment and email addresses as well as telephone numbers 6.The respondent is directed to give effect to this substituted decision and these orders and directions forthwith and shall give priority in this regard to providing the applicant with access to documents within categories 1, 2 and 3 in accordance with this substituted decision 7.The parties are granted leave to list the proceedings on 3 days notice for further directions to resolve any issues that may arise in giving effect to this substituted decision, orders and directions, including the correction of any oversights 8.There shall be no orders as to the costs involved in bringing and litigating the proceedings in the Tribunal.

11 Those orders were made following separate reasons for decision given by the Tribunal delivered in Chen v University of New South Wales (No 3) [2009] NSWADT 305 ("Chen (No 3)". In an earlier decision in the proceedings, Judicial Member Wilson found that each of the documents sought by the Applicant fell within the protected disclosures exemption in clause 20(1)(d) of Schedule 1 to the FOI Act: Chen v University of NSW [2008] NSWADT 244.It is my understanding that no application was made pursuant to Order 7 in Chen (No 4). It is also my understanding that no appeal has been lodged in respect of that decision.

Consideration 12 I have taken into account the material lodged by each of the parties in regard to the rehearing of this matter. I have also considered the reasoning set out by Judicial Member Wilson leading to the orders made in Chen (No 4). I agree with the Judicial Member's reasoning in Chen (No 3) and adopt it for the purposes of this determination.

13 In addition to those reasons, and in light of the orders made in Chen (No 4), it is also my understanding that the documents that are the subject of these proceedings have been released. Accordingly, I propose to make orders to achieve a similar outcome to Orders 1 to 5 in Chen (No 4). These orders should take effect after 28 days of these reasons.

14 In the circumstances of this matter I am not persuaded that costs should be awarded.

15 As these orders are based on my understanding of a number of matters, the parties are granted leave to list the proceedings on 3 days notice for further directions to resolve any issues that may arise, including the correction of any oversights. Any such application is to be brought prior to the time that the orders are to take effect.

Orders 1.The decisions under review are set aside. 2.Access is granted to all of the documents that are the subject of these applications, with the names and addresses of each of the complainants being deleted and replaced, separately for each complainant, by suitable letters of the alphabet so as to maintain consistency throughout the documents. No other deletions are to be made. These orders are to take effect after 28 days of these reasons. 3 There shall be no orders as to the costs.

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.