University of New South Wales v McGuirk

REASONS FOR DECISION Introduction 1 In two separate applications under the Freedom of Information Act 1989 (FOI Act), Mr McGuirk sought access to eight reports held by the University of New South Wales. The reports were prepared by eminent academics and lawyers following allegations that included scientific misconduct and fraud against Professor Bruce Hall. In the internal review decision relating to Mr McGuirk's request for the Reports of McLachlan, Ingleson, Niland, Deane, Wainwright and Hume (File No 043295) the decision was that the Reports should not be released. That decision also noted that the Niland and Hume Reports were publicly available on the University's website. In the internal review relating to Mr McGuirk's request for the Dowton and Hungerford Reports (File No 043398) the decision was to release those Reports but to delete any "personal identifying information". However, Mr McGuirk was advised that a de-identified copy of the Hungerford Report would not be released because the work involved in "dealing with" the application for access would substantially and unreasonably divert the agency's resources: s 25(1)(a1). 2 The main exemption that the University relied on to justify the deletion of information that could lead to the identification of the complainants and other individuals, was the exemption for matter relating to a "protected disclosure". The University also relied on the exemptions for confidential information, personal information, operations of agencies and internal working documents. Mr McGuirk applied to the Tribunal for a review of the University's decision not to give him full copies of the reports. At the invitation of the parties, the Tribunal Member viewed the de-identified reports posted on the University's website. 3 The Tribunal was not satisfied that the University had established any of the exemptions on which it relied and, apart from some material which it said fell outside the scope of Mr McGuirk's application, ordered that the reports be released in full. The University has appealed to the Appeal Panel against the Tribunal's decision on several legal grounds but indicated that it did not seek leave to extend the appeal to a review of the merits. Mr McGuirk submitted during the course of the hearing that even if the Appeal Panel upheld any of the grounds of appeal, the Tribunal's decision was nevertheless correct because the Tribunal has a general discretion to grant access to exempt documents. (See Mangoplah Pastoral Co Pty Ltd v Great Southern Energy [1999] NSWADT 93 and Neary -v- The Treasurer, New South Wales [2002] NSWADT 261.) The University was content to meet this argument despite the late notice. 4 Under the FOI Act a person has a legally enforceable right to be given access to an agency's documents, unless the agency can prove, among other things, that the document is an "exempt" document. Grounds of appeal 5 There were eight grounds of appeal. The first ground was that the Tribunal had denied the University procedural fairness in five different ways. The remaining grounds were based on other errors of law. Ground 1 - Breach of procedural fairness - not allowing University to file further evidence. 6 Background. The first alleged breach of procedural fairness was that the Tribunal had failed to allow the University to file further evidence to show that the original letters of complaint about Professor Hall were "protected disclosures". In order to deal with that ground we need to set out what the "protected disclosures" exemption requires and how the University says the Tribunal breached the rules of procedural fairness. 7 Protected disclosures exemption. Under Cl 20(1)(b) of Schedule 1 to the FOI Act, "A document is an exempt document if it contains matter the disclosure of which would disclose matter relating to a protected disclosure within the meaning of the Protected Disclosures Act 1994." A "protected disclosure" must be made voluntarily by a public official to a body such as the University. It must be about matters including corrupt conduct, maladministration or serious and substantial waste of public money: Protected Disclosures Act 1994, Part 2. The Tribunal Member pointed out during the hearing that unless the complaints made about Professor Hall were "protected disclosures" the reports written in response to those complaints would not be exempt. That is because only documents which disclose matter "relating to" a protected disclosure are exempt under Cl 20(1)(b). The parties agreed with that proposition. 8 University's submissions. The University relied on several points to support its submission that the Tribunal breached the rules of procedural fairness by not allowing it to file further evidence to show that the original letters of complaint about Professor Hall were "protected disclosures". The University said that the Tribunal had made directions that the hearing proceed by way of submissions rather than evidence. On that basis it was said that Mr Mullen, representing the University, had not filed any affidavit evidence. The University also submitted that Mr McGuirk had conceded during the hearing that the elements of the protected disclosures exemption in Cl 20(1)(b) had been made out. Despite that concession the University said that the Tribunal did not alert the University to the fact that it did not accept that concession. Had it done so, the University says it could have adduced further evidence to show that the original letters of complaint about Professor Hall were "protected disclosures". Finally the University submitted that, when the Tribunal raised the need for evidence, Mr Mullen applied for an adjournment to file further evidence supporting the University's reliance on the protected disclosures exemption but the Tribunal did not deal with that application. We consider each of these matters below. 9 The Tribunal's directions. The University submitted on the basis of the Result Sheet from the Directions Hearing and the manner in which the hearing was conducted that the matter was to proceed by way of submissions rather than evidence. The Result Sheet contains directions that the University give to Mr McGuirk and the Tribunal "more detailed or additional reasons for its decision" within a certain time. The Tribunal Member did not tick the box directing that the University file and serve a summary of the facts each witness would be giving to the Tribunal at the hearing. As directions hearings in FOI matters are generally not recorded, there is no transcript of what was said at that time. Each party filed written submissions and spoke to them at length at the hearing. 10 Mr McGuirk's concession. During the course of his submissions Mr McGuirk conceded that the complaints made about Professor Hall were "protected disclosures". He confirmed that to the Appeal Panel. However, he did not concede that the reports should not be released. As we have said, Mr McGuirk submitted that the Tribunal has an overriding discretion to release documents even if they fell within an exemption under the FOI Act. 11 Need for evidence that complaints were "protected disclosures". During the hearing the Tribunal raised the issue as to how it could find that the original letters of complaint were "protected disclosures" when, apart from one, those letters were not before it. The transcript continues as follows: Mr Mullen: That's an interesting point whether the Tribunal here will have to make a determination whether in fact the complaints are in fact protected disclosures. Montgomery: Well, how else can I decide that the exemption applies? Mullen: I agree. Montgomery: And I don't know whether they [the complaints] are in there or not. Mullen: It's the way that this matter was structured. It was done by way of submissions rather than by way of affidavit evidence. Montgomery: But the whole case is about documents and whether or not the documents are exempt under the FOI Act and whether these documents are hanging on other documents so address that any way you like but the onus is on you to prove your case and I would have thought that they are essential parts to prove in your case. Sorry, Mr McGuirk. Applicant: Yes. Mullen: I'm not sure that my friend is actually challenging that particular point and he may well indeed accept it. Montgomery: I have to accept it. I have to make a decision on it and it's not a matter of -- Applicant: It's not up to me. Mullen: It's a factual matter whether in fact complaints were made which would -- Montgomery: Yes, I would have to make a finding of fact that these are protected - this material relating to a protected disclosure or whatever the words of the Act are. Mullen: Yes, no, I agree with that. The complaint has to be in fact a protected disclosure to come within the Protected Disclosures Act. It can't just be any complaint about anything to be a protected disclosure. Montgomery: And I was working through that overnight and I came to a dead end because I couldn't go any further. Mullen: If that's the case I'd be - I would be seeking a further adjournment to go and put on evidence. (Words in brackets and emphasis added.) 12 The Tribunal deferred further consideration of the application for adjournment because of a foreshadowed submission by Mr McGuirk that could possibly have shortened the proceedings. Contrary to the University's contention, that submission was not Mr McGuirk's concession that the complaints were protected disclosures. In any event, that submission did not resolve the matter. The University says that it had not lost sight of the need for an adjournment to present further evidence in relation to whether the original letters of complaint were protected disclosures, but the Tribunal did not return to the adjournment application. 13 That submission does not accurately reflect what happened at the hearing. When the Tribunal Member asked Mr Mullen how long he would need to reply to Mr McGuirk's submissions, the following exchange occurred at p 51-53: Mullen: I've been thinking about the way to respond to my friend's submissions and also the question about the evidentiary matters that they relate to protected disclosures. What I would like to do is take the Tribunal to the Hungerford report and the Hungerford report is a report commissioned by the university to determine whether the complaints which were treated as protected disclosures were all dealt with. The Hungerford report then goes off and tries to re-examine all the complaints from the complainants and then determine whether they were dealt with. I think the Hungerford report identifies approximately 78 complaints over quiet a number of time. To that extent where the Tribunal is sort of asking for us to put on evidence in relation to each of those 78 complaints. It goes back to another submission about . . (not transcribable). . which is whether the application for these document is an unreasonable diversion of resources. So I'm almost inclined - and whether the university would have to receive an FOI application and then go away and examine 78 complaints again to determine whether they were in fact protected disclosures even though they did treat them as protected disclosures and whether that is really an unreasonable diversion of resources having in fact combining that with the personal affairs position. So I think I'm tending to the view that our submission would be that there might have to be a two-stage process in this matter that we would be arguing issues such as personal affairs and an unreasonable diversion of resources and we'd be seeking a determination on that. The unreasonable diversion of resources would also be as I've just said having to go away and identify the complaints and identify whether they are in fact protected disclosures under the FOI Act or under the Protected Disclosures Act. Montgomery: Well, presumably, you've already done that. If you decided to put them on the . . Mullen: Treat them as protected disclosures. Montgomery: If you decided to put them on the net in an edited form haven't you already given thought to that? Mullen: To whether we had to bring evidence today about whether . . ? Montgomery: No, about whether or not they're protected - each of them is a protected disclosure? I will hear your argument anyway. Mullen: Yes, it's in the submissions anyway ... ... So to the extent that a decision would have to be made on whether they are protected disclosures I'm just flagging maybe the better approach is can we do it in a two-stage process? Montgomery: Well, I'm happy to hear the argument but I got to the stage where it was obvious that there had to be a decision of whether or not the documents are exempt and that was going to be a finding of fact and if the basis of them is that they are exempt because they relate to a protected disclosure how can I make that finding of fact if I don't know that there is a protective disclosure? Mullen: We would have - Montgomery: Mr McGuirk says that I should just accept that they are. Mullen: I think there's also a preliminary view. If you don't have to or the university has to do it. To go and do that is an unreasonable diversion of resources. Montgomery: Yes, I understand. Mullen: It's a significant -we'd say it's a major diversion of resources. Applicant: And I'm submitting that the Tribunal is taking on work which is unnecessary because I think that - I'm not arguing about the status of the disclosures. I'm accepting that they are protected disclosures or I'm prepared for the Tribunal to accept that they're protected disclosures and to proceed from there. Montgomery: All right, well, I will go away and think about that. 14 After making further oral submissions Mr Mullen said, at p 72: Having regard to questions put to me about the Protected Disclosures Act and whether information should have been led before the Tribunal as to those protected disclosures I would actually just like to quickly take the Tribunal to the Hungerford report . . . 15 Mr Mullen took the Tribunal various passages in that report and concluded by saying at 75: What I'm alluding to is that I'm going back to the issue of the university actually treated the complaints as protected disclosures under the Protected Disclosures Act. Appeal Panel's findings and conclusions 16 Directions hearing. We find that the Result Sheet from the Directions Hearing contains directions that the University give to Mr McGuirk and the Tribunal "more detailed or additional reasons for its decision" within a certain time. We also find that the Tribunal Member did not tick the box directing that the University file and serve a summary of the facts each witness would be giving to the Tribunal at the hearing. Mr Mullen was obviously aware of the Tribunal's directions. That is apparent from his comment that: It's the way that this matter was structured. It was done by way of submissions rather than by way of affidavit evidence. 17 Each party filed written submissions and spoke to them at length at the hearing. However, we do not accept the University's general submission that the Tribunal hearing was run on the basis of submissions rather than evidence. A legally represented party must be taken to understand, without being specifically told or directed by the Tribunal, that it must adduce evidence to prove its case. The legal onus was on the University to make out the exemptions. Mr Mullen appeared to understand that but was under the mistaken impression that the Tribunal did not require evidence. Alternatively, he chose not to adduce any evidence in support of the University's case. The fact that the Tribunal did not tick a particular box on the Result Sheet does not remove the University's obligation to make out its case. It was open to the University and to Mr McGuirk to adduce evidence at the hearing. The Tribunal did nothing to dissuade either party from doing so. In fact, the Tribunal Member highlighted the need for evidence on particular issues at various stages of the proceedings. The Tribunal confirmed in its decision at [20] that: I specifically raised the issue of my need to be satisfied that the complaints are protected disclosures at the hearing to allow the University to address it however it failed to do so in any satisfactory manner. 18 Mr McGuirk's concession. As was recognised by Davies J in Tuite v Administrative Appeals Tribunal (1993) 40 FCR 483 at 488, an inquisitorial tribunal "may act upon concessions made by parties or their representatives or may reject such concessions if, in the circumstances of each case, it chooses so to do". It was up to the Tribunal to decide whether or not to accept Mr McGuirk's concession. It was not under any obligation to do so. In Seltsam Pty Limited v Ghaleb [2005] NSWCA 208, a Court of Appeal decision handed down shortly after the hearing in this case, the majority (Ipp JA, Mason P agreeing) held at [78] that there was a general principle that: ... although the basis on which the parties conduct a trial does not bind the judge, if the judge contemplates determining the case on a different basis he or she must inform the parties of this prospect so that they have an opportunity to address any new or changed issues that may arise. 19 The majority also found that the trial judge's findings were fundamentally inconsistent with the respondent's concessions and the way in which the trial was run. The trial judge did not inform the parties of his intention to depart from the way in which the case had been conducted and to make findings contrary to the concessions that the respondent had made. The majority concluded at [91], that there had been a clear and serious denial of procedural fairness. 20 We find that Mr McGuirk conceded to the Tribunal that the complaints were "protected disclosures" and that the reports related to those disclosures. However, when Mr Mullen suggested to the Tribunal Member that Mr McGuirk accepted that the complaints were protected disclosures, the Tribunal Member said, "I have to accept it. I have to make a decision on it . . ." (Emphasis added.) The Tribunal Member was indicating to Mr Mullen that he was going to decide the issue on the merits rather than relying on any concession by Mr McGuirk. The Tribunal Member went on to say that he would have to make a "finding of fact" that the material relates to a protected disclosure. Mr Mullen then said, "Yes, no, I agree with that." We accept that Mr McGuirk continued to make the concession despite the Tribunal Member indicating that he was going to decide the issue on the merits. 21 The adjournment application. When the Tribunal Member raised with Mr Mullen the need for evidence that the complaints were protected disclosures, Mr Mullen said that he would be seeking an adjournment to put on further evidence. Later in the proceedings, Mr Mullen said that he had been thinking about the way to respond to the evidentiary matters that relate to protected disclosures. He then made a submission about unreasonable diversion of resources in relation to the Hungerford Report. The Tribunal Member then said that he would go away and think about that submission. During the course of his final submissions, Mr Mullen returned to the question of the need for evidence to support the claim that the materials were exempt by reason that they were protected disclosures. (See transcript 14.04.05 pages 51ff.) He presented the University's case on the basis that the Tribunal would be deciding the issue on the merits. In particular, he attempted to persuade the Tribunal on the basis of the Hungerford Report that the University treated the complaints as protected disclosures. Mr Mullen made detailed submissions but did not apply for an adjournment to enable the University to adduce further evidence. This conduct persuades us that at this point in the proceedings, Mr Mullen had decided not to press his application for an adjournment. The University did not submit, and did not adduce evidence in this appeal, that this was due to inadvertence. 22 Conclusion. The University was legally represented in these proceedings and can be taken to have known that it has the onus of proving the facts which form the basis of any exemption: s 61 of the FOI Act. While Mr Mullen may have been under the mistaken impression on the basis of the Results Sheet that he was not required to file any evidence, the Tribunal Member quickly dispelled any such impression at the beginning of the hearing. Contrary to the University's assertion that the Tribunal was not clear about what it was doing, the Member re-iterated the point that evidence was required and made it clear that he would not be acting on Mr McGuirk's concession. (See VTAO and Others v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 927 at 350.) Mr Mullen understood the Tribunal's position because he went on to make alternative submissions and highlight relevant evidence. He would not have done so had he been under the impression that the Tribunal had accepted Mr McGuirk's concession. We are satisfied that the University had a reasonable opportunity to present its case. There has been no denial of procedural fairness. Ground 1 - Breach of procedural fairness - failure to receive the Brennan Report 23 Background. The University submitted that the failure of the Tribunal to receive the Brennan Report was also a breach of the rules of procedural fairness. Mr McGuirk did not expressly apply for access to the Brennan Report which was a separate report prepared by the former Chief Justice of the High Court, Sir Gerard Brennan. However because the Brennan Report was an annexure to another report, the Wainwright Report, which Mr McGuirk had requested, the Brennan Report was covered by his FOI application. Mr McGuirk told the Tribunal Member that he was not seeking access to the Brennan Report. At p 77 of the transcript of 13 April 2005, Mr Mullen said "So what I've brought with me today is two copies. I've got copies of the reports including the Brennan report, not including Professor Hall's 15 volume response. These are copies of the document in a de-identified form and I've got copies of the original ones with me as well." The Tribunal Member then said, "So you're welcome to take those ones home with you." Later, Mr Mullen said "... I just don't know whether you need to look at them to go through them and find personal identifying information in the originals then compare them with." The Tribunal Member said that he did not need the Brennan report because there was no argument about it. 24 The University conceded that the Tribunal did not have in mind that the Brennan Report would contain evidence about whether the complaints were protected disclosures. Nevertheless, the University submitted that the Brennan Report was admissible because it was relevant to that issue. It said the Tribunal made two errors of law. The first was a breach of procedural fairness because the Tribunal denied the University the opportunity to present its case. The second was that the Tribunal made an error of law by declining to admit relevant evidence. 25 Appeal Panel's findings and conclusion. It is apparent from the passages of the transcript quoted at [23] above, that Mr Mullen did not seek to tender the report. He merely inquired as to whether the Tribunal needed it to go through and compare it with the original. If there was no attempt to tender the Brennan Report in evidence, there can be no breach of procedural fairness by denying the University the opportunity to present its case. Nor can the Tribunal have made an error of law by declining to admit the Brennan Report into evidence. Even if Mr Mullen did seek to tender the Brennan Report, he did not tender it on the basis that it was relevant to the application of any exemptions on which the University relied. The Tribunal is not required to go through large quantities of material in search of evidence that could possibly support the University's claim. That point was made clear by the High Court in Gamester Pty Ltd v Lockhart (1993) 112 ALR 623 at 626 when the Court rejected a submission that a decision maker is obliged to sift through large volumes of written material in order to identify relevant submissions or evidence. The submission was described as suggesting: ... that a judge who has given a party a reasonable opportunity to state that party's claim for relief is under an obligation, without having the benefit of relevant and intelligible submissions, to extract from a mass of apparently non-supportive evidence any pieces of the evidence which could be regarded as supportive. The submission is misconceived. In court proceedings, a judge is bound to give a party a reasonable opportunity to state the party's claim for relief and to point to the evidence, which supports it. But if the opportunity is not taken, the judge is not bound to set out in search for supportive evidence to support a claim which the party has failed to articulate intelligibly. 26 In this case, although the Tribunal gave Mr Mullen a reasonable opportunity to do so, he did not "point to" the evidence in the Brennan Report on which he was seeking to rely. In those circumstances, there has been no breach of procedural fairness, nor did the Tribunal make an error of law in failing to admit relevant evidence. Ground 1 - Breach of procedural fairness - failure to consider or to receive the unedited reports 27 It is normal practice in FOI proceedings for an un-edited version of documents to be provided to the Tribunal on a confidential basis so that the Tribunal can make an informed decision about any exemption that has been claimed. A complete, un-edited copy of the reports was provided to the Tribunal in this case. The University submitted that it was apparent that the Tribunal failed to give consideration to the unedited Reports even though the Tribunal had those Reports before it. The University relied on the following passage from the Tribunal's decision in support of that contention: 16 The University contends that each of the complaints is subject to the protection of the Protected Disclosures Act 1994. The University's evidence in relation to the issue is limited to the report of Professor Ingleson dated 15 April 2002 which indicates that the complaints were treated as protected disclosures. The University adopted this approach notwithstanding the acknowledgement that at least one of the complainants did not seek the protection of the Protected Disclosures Act 1994 . 17 The University presented no other evidence in relation to the original complaints in order to establish that they were lodged as protected disclosures, or to establish whether or not subsequent events had altered the status of the disclosures. ... 20 I specifically raised the issue of my need to be satisfied that the complaints are protected disclosures at the hearing to allow the University to address it however it failed to do so in any satisfactory manner. In my view the mere fact that the University treated the complaints as protected disclosures does not establish that they were in fact protected disclosures. After considering the material before me I find that there is insufficient basis for concluding that the complaints are protected disclosures. The burden of establishing this lies with the University. The University has not satisfied that burden. 21 As I cannot be satisfied that the complaints are protected disclosures, I cannot be satisfied that the Reports are exempt from production under clause 20(1)(d) of Schedule 1 to the FOI Act. 28 In our view, this passage does not support the University's submission that the Tribunal failed to give consideration to the unedited Reports even though it had those Reports before it. The Tribunal noted that the University's evidence in relation to this issue was limited to the report of Professor Ingleson dated 15 April 2002. But that does not mean that the Tribunal failed to take into consideration other material before it. Indeed it is apparent from the Tribunal Member's answer to a question from Mr Mullen during the course of the hearing, that he understood that he could take into account documents even if they were not tendered in evidence. The Tribunal Member said: I can take into account relevant material … I don't think that I'm prevented from looking at something if it is relevant providing I then allow you the opportunity to see it and respond to it and all the usual procedural fairness issues are covered. I think I can take into account these documents, whether they're relevant or not is the bottom line I think. 29 In its reasons for decision, the Tribunal specifically said that, "After considering the material before me I find that there is insufficient basis for concluding that the complaints are protected disclosures." Based on the transcript and the decision, we do not accept the University's contention that the Tribunal failed to give consideration to the unedited Reports even though the Tribunal had those Reports before it. 30 Even if the Tribunal did not consider the unedited reports as potentially relevant evidence, its failure to do so does not amount to a breach of procedural fairness. The un-edited copies of the reports were not provided to the Tribunal on the basis that they contained evidence of any matter in dispute. If the University sought to rely on any material in those reports to make out any of the exemptions, it needed to point to that material. As we have said, the Tribunal Member is not bound to set out in search for supportive evidence which the party has failed to articulate. (Gamester Pty Ltd v Lockhart (1993) 112 ALR 623 at 626.) Mr Mullen did point to relevant evidence in the Hungerford Report. He failed to do so in relation to the un-edited version of other Reports. 31 The University also submitted that the Tribunal failed to make it sufficiently clear to the parties that it would not take the unedited reports into account when coming to its decision. For the reasons given above, we do not accept that the Tribunal failed to take the unedited reports into account. In any case, it is up to the party relying on the material to point to the relevant evidence. Ground 1 - Breach of procedural fairness - failure to consider grounds of exemption. 32 As well as the protected disclosures exemption, the University relied on the confidential information exemptions in Clause 13(a) and Clause 13(b) of Schedule 1 to the FOI Act. The University submitted that the Tribunal had breached the rules of procedural fairness by failing to consider the University's submissions in relation to Clause 13(b). Clause 13 states that: A document is an exempt document: (a) if it contains matter the disclosure of which would found an action for breach of confidence, or (b) if it contains matter the disclosure of which: (i) would otherwise disclose information obtained in confidence, and (ii) could reasonably be expected to prejudice the future supply of such information to the Government or to an agency, and (iii) would, on balance, be contrary to the public interest. 33 The Tribunal dealt with the University's submission at paragraphs 23 to 26 of its decision. 23 The University contends that each of the Reports is an exempt document pursuant to clause 13(a) of Schedule 1 to the FOI Act because the Reports contain confidential material given to the University in confidence. It further contends that to disclose the information in the Reports would expose the University to an action for breach of confidence and that disclosure would, on balance, be contrary to the public interest. 24 In my view there is no merit in this proposition. Despite the University bearing the burden of proof, it has failed to present evidence to support this assertion. There is no evidence at all to show that the University made explicit promises of confidentiality. Nor is there any explanation by the University for its failure to provide such evidence. 25 In light of the material that has already been published by the University and that which is otherwise publicly available, the evidence proffered by the University falls well short of the standard necessary to satisfy the burden placed on it to establish that publication of the Reports would expose the University to an action for breach of confidence. 26 The Tribunal is obliged to bring some scepticism to the task of assessing what are necessarily self-serving statements by agencies as to the availability of grounds for exemption which involve matters of judgment: Electoral Commissioner, State Electoral Office v McCabe (GD) [2003] NSW ADTAP 28. The question is always whether the material, statements of opinion and submissions put forward by an agency justifies reliance on the exemption. In my view, the University's reliance on this exemption is misconceived and its assertion has done it no credit. 34 The University submitted that the Tribunal did not refer to Cl 13(b), by name or otherwise, and that it simply failed to consider this exemption. According to the University, that failure constitutes a breach of procedural fairness. Alternatively, the University submitted that if it did consider Cl 13(b) then its failure to give reasons for rejecting it is also an error of law. 35 Appeal Panel's reasoning and conclusion. The Tribunal did not refer to Cl 13(b) by name in its reasons for decision. However, it is apparent from the passages set out above that the Tribunal had Cl 13(b) in mind. The Tribunal referred to two of the three elements set out in Cl 13(b) namely the necessity for the material to have been obtained in confidence and that disclosure would, on balance, be contrary to the public interest. As all three requirements have to be established in order to make out the exemption, there was no need for the Tribunal to refer to the third requirement. We are satisfied on the basis of the Tribunal's reference to two of the three elements in Cl 13(b) that it did not fail to consider this exemption. 36 The University's alternative submission was that the Tribunal failed to give reasons for rejecting the exemption. That is not correct. After identifying the University's submission, the Tribunal noted that the University had failed to present evidence to support its assertions. In the absence of any evidence in support of the exemptions claimed under Cl 13, the Tribunal rejected the University's reliance on the exemptions in that clause. While the Tribunal's reasons were short, nothing further was required. It follows that we do not agree with the University's submission that the Tribunal failed to give reasons for rejecting the exemption. Ground 1 - Breach of procedural fairness - comments and order in respect of s 58 of the FOI Act. 37 Mr McGuirk submitted to the Tribunal that it should make a reference to the responsible Minister about the conduct of the University pursuant to s 58 of the FOI Act. That section states that: 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 the officer by or under this 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. 38 In relation to this issue, Mr Mullen asked the Tribunal at p 82 of the transcript of 14 April 2005, whether the University was required to make any submissions in response to submissions about section 58 of the FOI Act. The Tribunal Member said: Montgomery: I really haven't given it any more thought than listening to what was said and what was asked is that I either make the decision or to issue some sort of a show cause notice . . .to the university and I haven't given it any more thought than that I heard the application. Mullen: I don't particularly want to be heard on that today. Montgomery: How about if I leave it at this that after I've thought about it if I think there is - that I won't make any decision on the point without giving you the opportunity to have it re-listed and make submissions or whatever you want to do. 39 The Tribunal made the following order in relation to s 58: These matters are to be listed for further directions in relation to the issue of whether a report under Section 58 of the FOI Act ought to be made. 40 The University submitted that the Tribunal did not merely notify the parties of a further listing but published a judgement which included remarks relating to s 58. The Tribunal said at [47] to [50] that: 47 Section 58 of the FOI Act provides that if the Tribunal is of the opinion that an officer of an agency has failed to exercise in good faith a function conferred or imposed by the FOI Act, the Tribunal may take such measures as it considers appropriate to bring the matter to the attention of the responsible Minister. 48 The legislature has expressed clearly its intention that the public has a right to obtain access to information held by the Government. The FOI Act provides a mechanism to obtain that information however the right to access is tempered by certain exemptions. The misapplication of those exemptions in an effort to circumvent the legislature's objective is inimical to the public's confidence in the proper, efficient and fair exercise of its functions under the FOI Act. 49 Mr McGuirk asserts that officers of the University have engaged in obstructionist behaviour and failed to comply with statutory obligations imposed by the FOI Act. He contends that the University has unreasonably relied on exemptions and unfairly forced him to litigate to establish his claims. Mr McGuirk has requested that, in light of this alleged conduct, a report under section 58 of the FOI Act ought to be made. 50 In the present case I am at a loss to understand why the University has resisted so strongly Mr McGuirk's attempts to obtain the Reports. However, I am not prepared to agree to his request at this stage. In my view the proper approach is to allow each party to present considered argument on that issue. Accordingly, the matter is to be re-listed so that directions can be made with respect to the further progress of the matter. 41 The University submitted that the Tribunal had, in effect, decided to issue some sort of a Show Cause notice and breached the rules of procedural fairness by not first hearing the University on whether or not there was any basis for making the comments that it did and by ordering further directions. This submission is misconceived. The Tribunal Member did not issue "some sort of Show Cause notice." He merely set out the terms of s 58, commented on the policy basis for that provision, summarised Mr McGuirk's submission and noted that he was "at a loss" to understand why the University had resisted Mr McGuirk's application so strongly. The matter was then re-listed for further directions. No finding or decision was made. In particular, contrary to the University's submission, no finding was made that was in breach of the principles in Briginshaw v Briginshaw (1938) 60 CLR 336 at 362 and 368-369. Grounds 2 & 3 - Evidence of protected disclosures 42 Apart from the grounds of appeal relating to procedural fairness, the University put forward several other grounds. The first of these is based on [16]-[17] and [20]-[21] of the Tribunal's decision. Those passages are set out above at [27] above. In particular, the University highlights the following passage from [21]: As I cannot be satisfied that the complaints are protected disclosures, I cannot be satisfied that the Reports are exempt from production under clause 20(1)(d) of Schedule 1 to the FOI Act. 43 The University emphasised the word "cannot" in this passage and submitted that the Tribunal had made the following errors of law: failing to take into account the unedited Reports; failing to find that the material in those Reports was itself evidence that the complaints were protected disclosures; and holding that "there was no evidence at all to establish the authenticity or status of" a document that on its face was a protected disclosure. 44 The first alleged error has already been considered in the context of a breach of procedural fairness. The University also submitted that it constitutes an error of law for the Tribunal to fail to consider evidence and material before it. We have already found, contrary to the University's submission, that the Tribunal did not fail to give consideration to the unedited Reports. If it did so, and found no relevant evidence in support of the University's case, then no error of law is disclosed. If it did not consider the unedited Reports as a potential source of evidence in support of the University's case, that is not an error of law. As we have said, the un-edited copies of the reports were not provided to the Tribunal on the basis that they contained evidence of any matter in dispute. If the University sought to rely on any material in those reports to make out any of the exemptions, it should have brought that material to the Tribunal's attention. (Gamester Pty Ltd v Lockhart (1993) 112 ALR 623 at 626.) 45 The second alleged error is that the Tribunal failed to find on the basis of the Reports, that the complaints were protected disclosures. The University submitted that an examination of the Reports discloses sufficient evidence to establish that the complaints were protected disclosures. As we have found that the Tribunal did not make an error by failing to sift through the Reports to identify relevant evidence, it follows that the Tribunal did not make an error in failing to make a particular finding on the basis of that evidence. In any case, a failure to make a particular finding of fact, even if there is some evidence in support of such a finding, is not an error of law. 46 The third alleged error was the Tribunal's finding that 'there was no evidence at all to establish the authenticity or status of" a complaint. The relevant passage from the Tribunal's decision is at [18]: 18 A document that appears to be a complaint from one of the complainants is in the material provided to the Tribunal. That document is contained within an annexure to the Hungerford report. It is expressed to be lodged as a protected disclosure however there is no evidence at all to establish the authenticity or status of this document or even if it is in fact one of the complaints in issue. Mr Mullen, the University's solicitor, did not address this issue other than by reference to Professor Ingleson's report. In my view this is insufficient to satisfy the burden on the University to establish that this or any other document is a protected disclosure. 47 According to the University, there was a "circumstantial case capable of proving that it was an authentic document and that it was one of the complaints in question." The University said that, "The conclusion that there was no evidence to demonstrate that the document was authentic and was one of the complaints in question is so bizarre as to evince (sic) the Tribunal's failure to understand the ways in which it was entitled to use the evidence before it." A finding of fact will not amount to an error of law except in very narrow circumstances. (See Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 149.) Even an illogical or perverse finding will not amount to an error of law. The University said that the question of whether or not a body of evidence is capable, if accepted, of satisfying a Tribunal that a statutory definition has been satisfied is a question of law. The University has imported a meaning to the words "cannot" in [21] of the Tribunal's decision, which, when read in context, was not the intended meaning. All the Tribunal Member meant to convey was that he was not satisfied that the complaints are protected disclosures or that the Reports were exempt under the protected disclosures exemption. This ground of appeal fails. Ground 4 - Failure to act on concession 48 The next ground of appeal was that the Tribunal proceeded on the basis that it was not entitled to act on Mr McGuirk's concession but was obliged to decide the issue on the basis of the evidence. The Tribunal Member did not accept Mr McGuirk's concession. Whether he assumed that he was not entitled to accept it is debatable. When Mr Mullen pointed out that Mr McGuirk may well be accepting that the complaints are protected disclosures, the Tribunal Member said, that "I have to accept it. I have to make a decision on it . . . " (Emphasis added.) The Tribunal Member also emphasised in the decision that he "specifically raised the issue of my need to be satisfied that the complaints are protected disclosures at the hearing ... " These comments are consistent with the Tribunal Member believing that he was not entitled to accept Mr McGuirk's concession. They are also consistent with him having decided that, while entitled to do so, he would not accept it. Having read the whole transcript and decision, we are not satisfied that the Tribunal was under the mistaken impression that he was not entitled to accept Mr McGuirk's concession. 49 The University's submission went further. It was said that it is "ordinarily inappropriate" for a Court to refuse to accept a concession without good cause. No authority was given for that proposition. Even if it is "ordinarily inappropriate" for a Tribunal to reject a concession, it is not an error of law to do so. Ground 5 - evidence on alteration of status of complaints 50 At [17] the Tribunal said: The University presented no other evidence [than the Ingleson Report] … to establish whether subsequent events had altered the status of the disclosures. 51 At [19] the Tribunal said: It is conceivable that as part of this process the complaints might have waived any right to protection under the Protected Disclosures Act 1994, however there is no evidence from which that inference could be drawn. 52 On the basis of these two passages, the University submitted that the Tribunal overlooked the fact that the Protected Disclosures Act does not provide for the status of protected disclosures to alter. That, the University said, was a "serious misunderstanding of law." The comments set out above were obiter dicta. Even if the Tribunal's comments were part of the ratio decidendi, there is no need to set aside the decision unless the decision would, or might, have been different had the error not been made. (Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 353 per Mason CJ.) The University did not submit that any misunderstanding by the Tribunal infected its subsequent reasoning process or its conclusion. Consequently, no error of law has been made out. Ground 6 - Failure to consult 53 One of the exemptions on which the University relied was Cl 6 of Sch. 1 to the FOI Act, the exemption for personal affairs. Under that clause, "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)." Section 31 of the FOI requires an agency to consult with the person concerned before giving someone else access to his or her personal information. The University submitted that the Tribunal Member made orders releasing personal information without first consulting with the people concerned as required by s 31. That, it was said, involves an error of law. 54 The University provided to the Tribunal copies of the original Reports as well as copies of the reports in a "de-identified" form that it was prepared to release to Mr McGuirk. The Tribunal said that Mr McGuirk did not seek access to addresses and other contact details in the Reports. The University submitted that Mr McGuirk had agreed that he did not seek access to the residential addresses of the four complainants referred to in the Reports, but that he was seeking access to the contact details of the other 20 or so people mentioned in the Report. Mr McGuirk did not file a cross-appeal or make any submission to the Appeal Panel that the Tribunal had incorrectly interpreted the scope of his request. The Tribunal Member said at [42] that he had examined each of the documents and compared the original Reports with those in a de-identified form. He came to the conclusion that some of the information in the Reports contained information that fell outside the scope of Mr McGuirk's application because they contain personal information such as addresses and contact details. He added that the University had "mostly, but not invariably, excluded this information from the de-identified form of the Reports that have been published." The Tribunal concluded at [43] that: In my view, this information is personal information for the purpose of clause 6 of Schedule 1 of the FOI Act; however, as it falls outside the scope of Mr McGuirk's applications I need not consider whether its disclosure is unreasonable. Accordingly it is my view that this information should not be disclosed. The information that falls within this category is set out at Schedule 1 to these reasons. 55 The point the University made was that the Tribunal's orders will result in the release of personal information "scattered" through the Reports in circumstances where the Tribunal has not first consulted the persons concerned. If that information is the names of people, then the Tribunal decided at [45] that the names of people mentioned in the Reports does not constitute their personal affairs. Consequently, there is no requirement to consult. If that information was not deleted by the University in the de-identified copies, then it was not relying on the personal affairs exemption in respect of that information. If the information fell into any other category, it may be arguable that the Tribunal unintentionally ordered its release or that if release was intentional, that it should not have done so without consulting the person concerned. As the University did not specifically identify the information "scattered" throughout the Reports which fell outside the two categories outlined above, we are not persuaded that the Tribunal made an error of law. Ground 7 - failure to apply s 24(1)(b) of the FOI Act 56 The University put forward a submission that after considering whether access to documents is to be given or refused, it is mandatory for the Tribunal to go on to consider whether any charge is payable in respect of the giving of access. That submission is based on the terms of s 24(1) and s 53(1) of the FOI Act and s 63 of the ADT Act. 57 Section 24 applies to an agency. It states that: (1) After considering an application for access to a document, an agency shall determine: (a) whether access to the document is to be given (whether immediately or subject to deferral) or refused, and (b) if access to the document is to be given - any charge payable in respect of the giving of access, and (c) any charge payable for dealing with the application. 58 The University submitted that the word "shall" in s 24 indicates that it is mandatory for the agency, and in the case of external review, the Tribunal- to make determinations under each of paragraphs (a), (b) and (c). The University said that because the Tribunal made its own decision on the editing of the material, the University would have to undertake the task of editing all the original documents again and providing them to Mr McGuirk. The University said that in most cases the appropriate course will be for the Tribunal to remit to the agency the question of assessing the appropriate charge. Because no such order was made in this case, the University does not have the power to charge Mr McGuirk for the considerable amount of work involved in complying with the Tribunal's orders. 59 Section 53(1) of the FOI Act gives a person who is aggrieved by a determination made by an agency under s 24, the right to apply to the Tribunal for a review of the determination. Section 63(1) of the ADT Act provides that the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it. For that purpose, it may exercise all the functions that are conferred on the original decision maker by the FOI Act: s 63(2). The Tribunal has the power to affirm, vary or set aside the reviewable decision: s 63(3). 60 The Tribunal's decision below dealt with two separate applications under the FOI Act. In the internal review decision relating to Mr McGuirk's request for the Reports of McLachlan, Ingleson, Niland, Deane, Wainwright and Hume (File No 043295) the decision was that the Reports should not be released. That decision also noted that the Niland and Hume Reports were publicly available on the University's website. Because there was no decision that access to any documents be given under s 24(1)(a), there was no decision in relation to any charge for the giving of access under s 24(1)(b). 61 In the internal review relating to Mr McGuirk's request for the Dowton and Hungerford Reports (File No 043398) the decision was to release those Reports but to delete any "personal identifying information". However, Mr McGuirk was advised that a de-identified copy of the Hungerford Report would not be released because the work involved in "dealing with" the application for access would substantially and unreasonably divert the agency's resources: s 25(1)(a1). 62 We understand the University's submission to be that as the Tribunal set aside the University's decision, and gave access to parts of the Reports, it should also have decided whether the University was entitled to charge for giving that access. Even if that submission is correct, it can be inferred from the Tribunal's reasons that the Tribunal Member decided that no charge should be payable for the giving of access to the Reports. The Tribunal Members said, at [46], that: It will be a relatively simple and inexpensive process to de-identify the Reports to the extent that I consider is warranted. 63 Although that comment was made in the context of reviewing the University's decision about unreasonable diversion of resources in relation to the Hungerford Report, it is also relevant to the more general question of whether a charge should be levied in relation to the giving of access to other de-identified Reports. Ground 8 - findings without evidence 64 The University submitted that the Tribunal had made an error of law by making seven separate findings when there was no evidence for those findings. The findings were those italicised below: The University provided Mr McGuirk with copies of the Niland Report and the Hume Report. Mr McGuirk has also obtained a copy of the report produced as a result of the Brennan inquiry from another source. The University declined to provide Mr McGuirk with copies of the remaining reports and asserts that they are exempt from production under various provisions of the FOI Act. [4] 65 The Tribunal's "finding" is merely a reflection of the University's decisions on internal review. 66 The second finding was that: The University contends that each of the complaints is subject to the protection of the Protected Disclosures Act 1994 . The University's evidence in relation to the issue is limited to the report of Professor Ingleson dated 15 April 2002 which indicates that the complaints were treated as protected disclosures. The University adopted this approach notwithstanding the acknowledgement that at least one of the complainants did not seek the protection of the Protected Disclosures Act 1994 . [16] 67 We assume that the University's point in relation to this passage is that the Tribunal did not take the parties' submissions as evidence. Because Mr Mullen acknowledged this fact during the course of submissions, rather than on the basis of written or oral evidence, the finding was made "without evidence". 68 The University's acknowledgement was a concession on a question of fact. The Tribunal did not need evidence to make a finding in relation to a matter conceded by the University. 69 The third finding was that: Material before the Tribunal indicates that the identities of the complainants have been made public. This has occurred both by way of posting of material on the University's website and by the media exposure apparently sought by some of the complainants themselves. It is conceivable that as part of this process the complainants might have waived any right to protection under the Protected Disclosures Act 1994, however there is no evidence from which that inference could be drawn. [19] 70 The Tribunal Member said in the reasons for decision that, at the invitation of the parties, he viewed the de-identified reports posted on the University's website. Consequently, it is not correct to say that there was no evidence in support of the finding that the identities of the complainants have been made public. 71 The fourth and fifth findings relate to the Tribunal's agreement with two arguments put forward by Mr McGuirk. Each of those arguments is highlighted in bold and the finding is italicised. 30 In contrast, Mr McGuirk asserts that in its disciplinary process the University has an obligation to act in accordance with the applicable Enterprise Agreement. He argues strongly that the University has acted in clear conflict with the provisions of that Enterprise Agreement . He argues that the complainants have not been given the same opportunity that Professor Hall was given to respond to allegations made against them and that the University has adopted an obstinate approach in these proceedings to justify what amounts to a clear abuse of process. 31 He also points to material that suggests that each of the complainants has asserted that the University has failed to protect them from retribution. He argues that the detrimental actions already suffered by the complainants far exceeds any additional detriment that they may suffer in the short term as a result of the publication of the allegations made against them. He contends that the release of the Reports would reveal the processes that the University has adopted and that this is clearly in the public interest. 32 I agree with Mr McGuirk's arguments. I consider that the University's contentions are misconceived. I do not agree with its assessment of the implications for the management of its personnel and on the conduct of its industrial relations that would follow publication. 72 By saying that he agreed with Mr McGuirk's arguments, the Tribunal Member was making a general point that he was persuaded by Mr McGuirk's submissions and not persuaded by Mr Mullen's submissions. Even if the Tribunal Member was impliedly making the findings set out in bold, he was entitled to do so even if the "evidence" was given from the bar table or contained in documents that were not formally admitted into evidence. Under s 73(2), "The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice." 73 The sixth finding was an "implied" finding that the University had refused to release the Reports in their entirety when in fact the majority of the content of the Reports had been released. That assertion is not consistent with the internal review decisions. In the internal review decision relating to Mr McGuirk's request for the Reports of McLachlan, Ingleson, Niland, Deane, Wainwright and Hume (File No 043295) the decision was that the Reports should not be released. That decision also noted that the Niland and Hume Reports were publicly available on the University's website. 74 The seventh finding was that: I note that notwithstanding my view that certain information set out in Annexure G to the Wainwright Report is outside the scope of McGuirk's applications, that material has been posted on the University's website in a readable form . The University may consider it prudent to address that issue however I have no jurisdiction to order it to do so. [44] 75 The Tribunal was merely noting that certain material had been posted on the University's website. The Tribunal Member viewed the website at the invitation of the parties, so there was evidence to support this finding. Override discretion 76 Mr McGuirk submitted during the course of the hearing that if the Appeal Panel upheld any of the grounds of appeal, the Tribunal's decision was nevertheless correct because the Tribunal has a general discretion to grant access to exempt documents. (See Mangoplah Pastoral Co Pty Ltd v Great Southern Energy [1999] NSWADT 93 and Neary -v- The Treasurer, New South Wales [2002] NSWADT 261.) As we have not upheld any of the grounds of appeal, there is no need for us to consider this submission. Further submission 77 On 18 November 2005 the University made a further submission drawing the Appeal Panel's attention to a recent decision - Commissioner of Police v Mercer [2005] NSWADTAP 55. The University said that this decision was relevant to its first ground of appeal, denial of procedural fairness and referred the Appeal Panel in particular to paragraphs [2], [3] and [5] to [11] of that decision. We are unable to see the significance of anything in these paragraphs to the questions before us. This was not a case where the University submitted that the Tribunal had made a premature decision. All that the University said in that regard was that the Tribunal had refused to grant an adjournment when an adjournment was requested. We have dealt with that submission above. Conclusion and Orders 78 None of the University's grounds of appeal has been made out. The Tribunal did not deny the University procedural fairness, nor did it make any of the errors of law that the University submitted it had made. The Appeal Panel makes the following orders: 1. The Tribunal's decision is affirmed. 2. The appeal is dismissed.

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