Osland v Secretary to the Department of Justice [2008] HCA 37

HIGH COURT OF AUSTRALIA

GLEESON CJ,

GUMMOW, KIRBY, HAYNE, HEYDON AND KIEFEL JJ

MARJORIE HEATHER OSLAND APPELLANT

AND

SECRETARY TO THE DEPARTMENT OF JUSTICE RESPONDENT

Osland v Secretary to the Department of Justice [2008] HCA 37

7 August 2008

M3/2008

ORDER

1. Appeal allowed.

2. Set aside the orders of the Court of Appeal of the Supreme Court of Victoria made on 17 May 2007.

3. Remit the matter to the Court of Appeal of the Supreme Court of Victoria for further hearing in accordance with the reasons of this Court.

4. Respondent to pay the appellant's costs of the appeal to this Court.

On appeal from the Supreme Court of Victoria

Representation

J B R Beach QC with R H M Attiwill and J D Pizer for the appellant (instructed by Hunt & Hunt)

P M Tate SC, Solicitor-General for the State of Victoria with S B McNicol and M J Richards for the respondent (instructed by FOI Solutions)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Osland v Secretary to the Department of Justice

Administrative law – Freedom of information – Exempt documents – Freedom of Information Act 1982 (Vic), s 50(4) empowered Tribunal to decide access should be granted to exempt documents if of opinion that public interest required access to be granted – Whether, in circumstances of this matter, Court of Appeal erred in concluding no basis for Tribunal to exercise power, when Court of Appeal did not examine documents.

Practice and procedure – Legal professional privilege – Waiver – Legal advice obtained in relation to petition for exercise of prerogative of mercy – Whether issue of press release disclosing existence and effect of advice inconsistent with maintenance of confidentiality in content of advice.

Words and phrases – "legal professional privilege", "mercy", "pardon", "public interest", "public interest override", "waiver".