University of New South Wales v McGuirk

(c) The plaintiff refused the defendant access to the advice and certain other advices. The reason given for such refusal was: "Clause 10 of Schedule 1 of the FOI Act provides as follows: ' 10 Documents subject to legal professional privilege

(1) A document is an exempt document if it contains matter that would be privileged from production in legal proceedings on the ground of legal professional privilege.

(2) A document is not an exempt document by virtue of this clause merely because it contains matter that appears in an agency's policy document.' I consider that: s the withheld documents record legal advice provided by a legal advisor to the University. s release of the withheld documents would result in disclosure of a confidential communication made between the University and its legal advisor."

(d) The defendant sought a review by the Administrative Decisions Tribunal of the plaintiff's decision. On 8 December 2005 the Tribunal set aside the plaintiff's decision and ordered that the defendant be given access to the advice. The Tribunal held that it was not satisfied that the plaintiff had discharged the onus upon it of establishing that it had not waived its legal professional privilege in the advice by disclosure to a third party.

(e) The plaintiff appealed from the Tribunal's decision to an Appeal Panel. On 22 August 2006 the Appeal Panel allowed the appeal and affirmed the plaintiff's refusal of access to the advice. The Panel concluded that there had been no waiver of legal professional privilege.

(f) The defendant appealed to this court from the decision of the Appeal Panel on the grounds that the plaintiff's Chancellor had the capacity to waive the legal professional privilege of the University and that the Appeal Panel had failed to consider what the correct and preferable decision was in accordance with s 63 of the Act. On 25 July 2007 Harrison AsJ rejected the first ground of appeal but upheld the appeal on the second ground and remitted the matter to the Appeal Panel for determination in accordance with law. Her Honour held: "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." Subsequently her Honour ordered the defendant to pay costs on an indemnity basis from 21 October 2006.

(g) On 21 December 2007 the defendant filed a notice of appeal in the Court of Appeal in respect of the decision of Harrison AsJ. The plaintiff did not appeal or cross appeal from that decision.

(h) On 29 February 2008 the Appeal Panel determined the remitted issue. It set aside the plaintiff's decision not to give access to the advice and "in substitution for that decision, the decision is made to give Mr McGuirk access to the Walker/Bell advice."

(i) On 27 March 2008 the plaintiff sought to file an application for a stay of the decision of the Appeal Panel in the registry of the Tribunal. The registry refused to accept the document on the basis the Tribunal did not have power to order a stay of its own decision and that the application for a stay should be made to the Supreme Court.

(j) The plaintiff, by summons filed in this court on 27 March 2008, sought "1. An order setting aside the orders made by an Appeal Panel of the Administrative Decisions Tribunal and recorded in University of New South Wales v McGuirk (No. 2) [2008] NSWADTAP 8."

and various consequential orders. The stated ground of appeal was "1. The Appeal Panel erred by holding, and proceeding on the basis, that the Administrative Decisions Tribunal has power to make an order granting access to a document that is exempt within the meaning of the Freedom of Information Act 1989 ."

(k) Counsel for the plaintiff indicated that a further ground would be raised by it. He said: "There is one further ground, and that is that the appeal panel erred in deciding as to whether legal professional privilege should be overridden - the essence of that background will be as follows. The appeal panel focused on the question of whether it was necessary for the proper administration of government to keep the document from disclosure, and held that it was not so necessary. It gave reasons, such as, the document was about five years old. The contention on appeal will be that the appeal panel should have taken account, not only of the individual document, but the nature of the exemption which is legal professional privilege. Legal professional privilege, although of course for the benefit of the individual clients, is primarily a matter of the public interest, the public interest in having clients, potential clients, getting good legal 'advice' and representation is so important that it militates in favour of them communicating with the lawyers confidentially."

The submissions 4 In University of New South Wales v Gerard Michael McGuirk [2006] NSWSC 1362 at [102] Nicholas J held: "In my opinion s 63 ADT Act provides the Tribunal with the 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." 5 The plaintiff submits the primary issue in the present appeal is whether Nicholas J's decision is correct and that it is appropriate that that issue be removed into the Court of Appeal for determination pursuant to s 51(5) of the Supreme Court Act 1970. The defendant opposes the removal application. 6 Section 51(5) provides: "Where proceedings by way of appeal or otherwise under any Act other than this Act or proceedings on a stated case, other than a case stated by the court in a division, are commenced in a Division - (a) the court in a Division in which the proceedings are pending is satisfied that special circumstances exist which render it desirable so to do, may, on application by a party or of its own motion, order that the proceedings be removed into the Court of Appeal; and (b) upon an order being made under paragraph (a), the proceedings may be continued and disposed of in the Court of Appeal." 7 The plaintiff submits that a stay of the orders of the tribunal should be granted pending the hearing of this appeal otherwise the appeal will be rendered nugatory. The defendant submitted the lengthy passage of time since the proceedings commenced and the merits, which clearly favoured disclosure of the document, militated against the granting of a stay which should be refused. 8 The defendant, who appeared in person

(a) accepted that the issue of the correctness or otherwise of the decision of Nicholas J was of profound importance to freedom of information and hence to accountability to the public of New South Wales. He said he would welcome having the decision confirmed by the Court of Appeal,

(b) referred to an extract from a manual apparently prepared by the Department of Premier and Cabinet and the New South Wales Ombudsman (Exhibit 1), where at para 8.3.49 the following appears: "There has been controversy as to whether the ADT, when exercising its external review role, also has this discretion to order the release of exempt documents. The ADT (President O'Connor) had previously held that it does not have such discretion ( Neary v The Treasurer, New South Wales [2002] NSWADT 261). Recently, however, Nicholas J in the Supreme Court held that the ADT may exercise such discretion ( University of New South Wales v McGuirk [2006] NSWSC 1362). The Department of Premier and Cabinet has supported the contrary position (as established in Neary's case). As the Government was not a party to the McGuirk proceedings it was not in a position to appeal that decision. The Government may seek to have this decision reconsidered by the Courts if it is raised in future proceedings.",

(c) referred to the decision of the Court of Appeal in Howell v Macquarie University [2008] NSWCA 26 in which the Court of Appeal referred to the decision of Nicholas J in respect of the "residual discretion" without adverse comment,

(d) submitted the plaintiff, as a party to the proceedings before Nicholas J, had had the opportunity to appeal from that decision and had not taken it. It had mounted no or no significant argument to contest the correctness of that decision before Harrison AsJ and had not appealed from her judgment. The defendant said: "I would submit that the University conduct in this matter is less than admirable. I have not fully researched the issues of estoppel in respect of legal proceedings such as this, but I would think that there is arguably a very strong case for the University to be estopped in this matter, and even if I am wrong on that, if I am wrong, and there is no principle of estoppel, because I have not had the time to research it, but certainly in respect of any discretion that this Court has, in respect of the exercise of any powers that this Court has, then the Court is bound to take into account conduct of the party seeking relief. I would submit that this appeal is improper…",

(e) submitted that this appeal should be either stayed pending the determination by the Court of Appeal of the appeal which he had lodged in respect of the judgment of Harrison AsJ, or there should be a joinder of the appeals. 9 However, the defendant's appeal from the judgment of Harrison AsJ has not, in terms, raised an issue which would require the Court of Appeal to determine the correctness or otherwise of the judgment of Nicholas J. This is not surprising as the defendant was successful on this issue. The defendant indicated he did not seek to overturn that decision but rather to clarify its terminology. Accordingly, it would not be appropriate to stay the present appeal pending the determination of the defendant's appeal. The plaintiff is not estopped by the fact it did not appeal to the Court of Appeal from the decision of Nicholas J.

Conclusion 10 In my opinion special circumstances exist in this matter which render it desirable to order that it be removed into the Court of Appeal. 11 The special circumstances are as follows:

(a) the issue is one of importance which had been the subject of conflicting opinions in the Tribunal;

(b) the issue involves a pure question of law, being the proper construction of the Act;

(c) there is a reasonably arguable case that the decision of Nicholas J is erroneous. The argument was outlined as follows by counsel for the plaintiff: "The Freedom of Information Act plainly allows an agency to waive its own legal professional privilege, if it chooses to do so. The argument we will put on appeal, essentially, is that the general conferral of power in no way indicates that Parliament has decided consciously to abrogate legal professional privilege by conferring the power on someone other than the client. Should that argument fail, we will argue this, that section 124 of the act says that nothing in the Administrative Decisions Tribunal Act authorised anybody to release an exempt document, and that section in subsection 2 uses the phrase 'anybody other than the tribunal'. We will be arguing that where the term 'body' is used, it includes the tribunal, and accordingly the prohibition on anybody releasing the material. Thirdly, we will argue that section 55 of the Freedom of Information Act supports our position, it provides that the tribunal may not disclose exempt material in its reasons for decision, or otherwise. We submit that 'otherwise' is wide enough to encompass its orders. We accept there is a reasonable argument against us. The argument based on Coco was not fully put, but will be fully argued this time, I anticipate."

(d) if the matter is heard in the Common Law Division it is anticipated the losing party will appeal to the Court of Appeal;

(e) the Court of Appeal will have the benefit of the judgment of a judge of the Division by reason of the judgment of Nicholas J. The argument of the issue in the Division would involve an unnecessary waste of resources;

(f) the further ground identified by counsel for the plaintiff (2) does not require any factual determination;

(g) the dispute is whether the defendant should have access to the advice. That dispute has become fragmented. The removal of this appeal into the Court of Appeal will provide the opportunity for the dispute to be determined at a single hearing, thereby avoiding a multitude of hearings;

(h) if the defendant, after full research, wishes to argue that the plaintiff is estopped or otherwise precluded from pursuing this appeal by reason of its failure to appeal from the decision of Harrison AsJ, that issue could be determined at the same time as an application by the plaintiff for leave to appeal out of time from the judgment of Harrison AsJ, if the plaintiff considered such an application appropriate. 12 In my opinion, the discretionary matters referred to by the defendant are not such as to justify the refusal of the application on discretionary grounds. 13 Section 121 of the Administrative Decisions Tribunal Act 1997 provides: "Subject to any interlocutory order made by the Supreme Court, an appeal under this Part does not affect the operation of the decision appealed against or prevent the taking of action to implement the decision." 14 The court has an inherent or incidental power to order a stay whenever justice requires. In the present case the plaintiff has reasonably arguable grounds of appeal and a refusal to grant a stay in these proceedings would render the appeal futile. Accordingly, in my opinion, a stay should be granted pending the hearing of the appeal. 15 The defendant's notice of motion, which sought dismissal of the plaintiff's notice of motion, was unnecessary. However, it did not involve any additional costs to the plaintiff. It should be dismissed with an order that each party bear his or its own costs. 16 In my opinion, the appropriate order for costs in respect of the plaintiff's notice of motion is that the costs be costs in the appeal.

Orders 17 I make the following orders: (a) the orders and decision of the Appeal Panel of the Administrative Decisions Tribunal recorded in University of New South Wales v McGuirk (No. 2) [2008] NSWADTAP 8 be stayed pending the determination of these proceedings; (b) the proceedings be removed into the Court of Appeal; (c) this matter be listed for directions before the registrar of the Court of Appeal on a date to be notified by the registrar to the parties; (d) the costs of the plaintiff's notice of motion be costs in the appeal. (e) the defendant's notice of motion is dismissed; (f) each party to bear his or its own costs of the defendant's notice of motion. **********

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