CITATION: Howell v Macquarie University (No 2) [2007] NSWADT 227 This decision has been amended. Please see the end of the decision for a list of the amendments. DIVISION: General Division APPLICANT PARTIES: Sally Clare Howell RESPONDENT Macquarie University FILE NUMBER: 063012 HEARING DATES: On the papers SUBMISSIONS CLOSED: 20 June 2007 DATE OF DECISION: 28 September 2007 BEFORE: Montgomery S - Judicial Member CATCHWORDS: access to documents - business affairs - access to documents - confidential material - access to documents - legal professional privilege - access to documents - personal affairs - Freedom of Information Act - access to documents - business affairs - Freedom of Information Act - access to documents - confidential material - Freedom of Information Act - access to documents - legal professional privilege - Freedom of Information Act - access to documents - personal affairs MATTER FOR DECISION: Principal matter Administrative Decisions Tribunal Act 1997 LEGISLATION CITED : Freedom of Information Act 1989 Ombudsman Act 1974 Chief Executive, SAS Trustee Corporation v Daykin [2000] NSWADTAP 20 Cianfrano v Director General, Premier's Department [2007] NSWADT 216 Cripps & Anor v G & M Dawson Pty Ltd & Anor (2006) NSWCA 81 Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543 CASES CITED: Howell v Macquarie University [2007] NSWADT 95 Mangoplah Pastoral Co Pty Ltd v Great Southern Energy [1999] NSWADT 93 Miriani v Commissioner for Fair Trading, Office of Fair Trading [2006] NSWADT 52 North Eastern Travelstops Pty Limited v Bradley and Ors (No. 2) [2005] NSWADTAP 17 Secretary to the Department of Justice v Osland [2007] VSCA 96 University of New South Wales v Gerard Michael McGuirk [2006] NSWSC 1362 APPLICANT P Howell, solicitor REPRESENTATION: RESPONDENT M Allars, barrister ORDERS: Orders; In accordance with the Reasons for Decision provided in Howell v Macquarie University [2007] NSWADT 95 ("the 20 April 2007 reasons"), the Tribunal orders that: ; 1. the decision under review is set aside. ; 2. in substitution for the decision:; (a) the Respondent's determination that Documents 73-79 are exempt under clause 10 of Schedule 1 to the Freedom of Information Act 1989 (NSW) ("the FOI Act") is affirmed; ; (b) those parts of Documents 3, 14, 21 and 43 identified in paragraph 105 of the 20 April 2007 reasons are exempt under clause 10 and the documents are to be released with that exempt matter deleted; ; (c) those parts of Documents 16, 27, 34, 35, 37, 44, 48, 50, 55, 57, 63, 68, 70 and 71 identified in paragraph 110 of the 20 April 2007 reasons are exempt under clause 6 of Schedule 1 to the FOI Act and the documents are to be released with that exempt matter deleted; ; (d) those parts of Documents 32 and 38 identified in paragraph 92 of the 20 April 2007 reasons are exempt under clause 7 of Schedule 1 to the FOI Act and the documents are to be released with that exempt matter deleted; and; (e) Documents 1-2, 4-13, 15, 17-20, 22-26, 28-31, 36, 39-42, 45-47, 49, 51-54, 56, 58, 60-62, 64-67, 69 and 72 are not exempt and are to be released.; 3. no order for costs. ; 4. the release of additional material is to take place 28 days from the date of these orders. REASONS FOR DECISION BACKGROUND 1 The background to this matter is set out in Howell v Macquarie University [2007] NSWADT 95. In that decision I determined that many of the documents that have been identified as falling within the scope of the FOI application should be released. However, I found that some documents contained matter which was exempt under either clauses 6, 7 or 10 in Schedule 1 to the Freedom of Information Act 1989 ("the FOI Act"). 2 In University of New South Wales v Gerard Michael McGuirk [2006] NSWSC 1362 the Supreme Court confirmed that the Tribunal has 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. The Court in McGuirk did not provide guidance as to the proper exercise of that discretion. In light of that decision I considered that it was appropriate that the parties have an opportunity to present argument with respect to how the Tribunal's discretion should be exercised. I invited the parties to make submissions in regard to whether the material that Ms Howell seeks should be released notwithstanding that it has been found to be exempt. 3 Each of the parties has filed submissions on the point and it was agreed that the matter would be determined on the basis of those submissions. 4 Section 88(1) of the Administrative Decisions Tribunal Act 1997 ("the ADT Act") provides: 88 Costs (1) Subject to the rules of the Tribunal and any other Act or law, the Tribunal may award costs in relation to proceedings before it, but only if it is satisfied that there are special circumstances warranting an award of costs. The applicant's case 5 The applicant seeks the release of: those parts of documents 73-79 inclusive, which summarise or record statements of alleged fact about the conduct of Sally Howell. Any parts of those documents so released should also show the date of the document and the identity of the sender and recipient(s), so that it is clear what was said when and by whom. 6 The material to which access is sought has been found to be exempt on the grounds of legal professional privilege. 7 The applicant also seeks an order that the respondent pay the applicant's costs of these proceedings on an indemnity basis. 8 The applicant says that the tribunal should exercise its discretion to order the release of the exempt documents. Mr Howell referred to views expressed by Smith JM in Mangoplah Pastoral Co Pty Ltd v Great Southern Energy [1999] NSWADT 93 at paragraphs [90] -[96] which he says provides a useful guide as to how this discretion should be exercised. 9 Mr Howell contends that the basis for the discretion is section 63 of the ADT Act, which does not include the words "public interest". The words used are "correct and preferable". Accordingly it is not correct to limit the exercise of the discretion by reference to a public interest test. 10 He argues that there may be many reasons why it is in the interests of either an agency or an access applicant, or both, to release exempt material that have little or nothing to do with the public interest. For example, if in the defamation claim the applicant has brought against the university solicitor it was the solicitor who wanted privileged documents in order to defend herself, the university might consider it appropriate to release the documents, because it had a greater private interest in protecting its own staff than in preserving confidentiality in the documents released. If the test were limited to public interest grounds, release would be difficult to justify, the law having already determined that preserving the privilege is in the public interest. Release in such circumstances could nevertheless be the correct and preferable decision. 11 He submits that if the Tribunal is to use its override discretion in relation to legally privileged documents, then there should be some principle by which the Tribunal decides to override what the High Court has referred to as an important immunity. It is submitted that a suitable principle is whether an agency in the position of the respondent, acting reasonably and with due regard for its own interests, ought to waive privilege in those parts of the communication which are sought to be released. The particular circumstances of the case should be considered. 12 Mr Howell contends that if this principle were applied to the present case it would permit release of the information sought. He points to documents already released in response to an earlier FOI request and argues that by releasing this information, the respondent acknowledged that letting the applicant know what it believed she had done did not impede its administration or jeopardise the confidentiality of its legal advice. 13 He also submits that it is not in the interests of the respondent to act on the basis of an incorrect view of the facts and that withholding information about what the applicant was believed to have done prevents the respondent from either confirming or correcting its view of what occurred. He also points to what he says are examples of the respondent's failures to provide the applicant with procedural fairness. 14 Mr Howell contends that it is highly unlikely that the release of statements of alleged fact from legal advice will affect the preparedness of the respondent's legal advisers in the future to base their advice on what they believe to be the facts. Costs 15 Mr Howell contends that special circumstances exist to justify an order for costs pursuant to section 88(1) of the ADT Act. He provided an affidavit in support of this submission. 16 He says firstly, that most of the case concerned the respondent's claim of legal professional privilege in circumstances where the documents could not be privileged. He says that on the facts known to the respondent and its lawyers before the FOI request was made, the respondent never had the basis for a claim of privilege in respect of communications by or to Mr Kelly. He submits that the making of a submission that a party knows is not supported by the evidence, and which is contradicted by similar evidence in prior proceedings is a special circumstance. He says that if that claim had not been made for all but one of the 79 documents covered by the request, it is highly unlikely these proceedings would have been brought. The applicant has been put to great expense in running a case that should never have been necessary, and is entitled to be compensated by a costs order. 17 Mr Howell says that a second special circumstance is that the respondent simultaneously maintained contradictory submissions on Mr Kelly's role based on the similar evidence in two different Tribunal proceedings, without disclosing the contradiction to the Tribunal members hearing those proceedings. In doing so, the respondent, and its lawyers, breached the duty of candour they owed to the Tribunal. He submits that it is not acceptable for the same party to make different submissions to different Tribunal members without informing either of the difference. The consequence for the applicant of this non-disclosure was to substantially increase the costs of the case. 18 Mr Howell says that a third special circumstance is the inconsistency between the respondent's claim that the confidentiality element of privilege was established for the documents issued by or to Mr Kelly when it knew Part 3A of the Ombudsman Act 1974 required mandatory notification of the material resulting from the investigation. The respondent must have known from the outset the weakness of its case on the confidentiality element of privilege. 19 Mr Howell says that a fourth special circumstance is that a university which ran a Special School for children with disabilities has attempted to prevent the person who had day to day control of that school from learning what had occurred at the school, despite the implications for the safety and proper management of children at the school. This is completely inconsistent with any notion of child protection. It ignored the requirements of child protection when considering the personal affairs and confidentiality exemptions. 20 Mr Howell says that a fifth special circumstance is the respondent's conduct in resisting the FOI request is inconsistent with the object of the FOI Act "to ensure that records held by the Government concerning the personal affairs of members of the public are not incomplete, incorrect, out of date or misleading." 21 He submits that few of the documents in issue have been withheld in the legitimate assertion of the respondent's legal rights and obligations. The inference is clearly open that the respondent's actions in these proceedings have been nothing more than an attempt to prevent the applicant gaining access to material that will allow her to set the record straight. The respondent's case 22 Ms Allars made submissions regarding the approach to be taken by the Tribunal in exercising its override discretion. She referred to a number of authorities in support of her submissions. In particular she refers to the Appeal Panel decision in Chief Executive, SAS Trustee Corporation v Daykin [2000] NSWADTAP 20 which approved the principle that in the case of clause 10, the Tribunal should only exercise the override discretion in relatively extreme circumstances. 23 She also referred to the High Court decision in Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543 where it was held that legal professional privilege is a fundamental common law right, which may only be abrogated by express and unambiguous statutory language. She submits that it would be odd if the implied override discretion of the Tribunal under section 63 of the ADT Act could operate to abrogate the privilege. She says that the agency would effectively be required by the Tribunal to waive its privilege in circumstances where the ADT Act does not confer on the Tribunal express power to give such a direction. 24 Ms Allars submits that the override discretion should not be exercised to require release of the documents held exempt under clause 10 because: (i) There are no relatively extreme circumstances. (ii) There are no countervailing considerations of higher public importance capable of outweighing the public interest reflected in clause 10. (iii) The legal professional privilege exemption is founded on public interest and reflects a balancing of public interests which has already been undertaken, and resolved in favour of non-disclosure. (iv) Requiring access to be given would override the specific public interest supported by legal professional privilege of preserving the ability of the respondent to obtain advice and present its case in litigation. (v) Contrary to the applicant's submission, the nature of other documents released to the applicant by the respondent, whether in the context of these proceedings or otherwise, cannot render some documents 'less privileged', or have any relevance to the exercise of the discretion. (vi) To require release would infringe the principle set out in Chief Executive, SAS Trustee Corporation v Daykin that it is rarely, if ever, appropriate to exercise the discretion in favour of release in situations where a document protected by legal professional privilege is the subject of an access application by a party to pending or current litigation between the requester and the agency in possession of the document which is subject to the privilege. That is the very situation in the present case, where the applicant seeking access to the documents is the plaintiff in a defamation action against the respondent's solicitor relating to matters which are contained in the documents. (vii) The defamation proceedings in the Supreme Court are of a different nature to the merits review proceedings in the Industrial Relations Commission considered in Daykin. (viii) To require access to be given would subvert the public interest on which the privilege is founded, by depriving the respondent of its entitlement to claim the privilege over the documents in the defamation action. 25 Ms Allars also submits that the override discretion should not be exercised to require release of the documents held exempt under clause 6 because of the public interest in protecting the personal information of individuals against unreasonable disclosure and a further public interest reflected in the provisions of Pt 3A of the Ombudsman Act. Ms Allars argues that there is no public interest in facilitating the applicant's access to documents she believes may support her defamation action against the respondent's solicitor. She has a private interest in those proceedings. They are of no conceivable benefit to the public. Costs 26 The respondent does not seek an award of costs pursuant to section 88(1) of the ADT Act. It also opposes the applicant's application for an award of costs. 27 Ms Allars submits that the applicant's assertion that the making of submissions which differed from those made in other proceedings before the Tribunal is a basis for a costs order is misconceived. She says that there can be many reasons for a party's submissions in one case differing from those made in an earlier case, not least that it concerns different issues, circumstances, evidence and/or legal principles. She further says that the applicant has misconceived the relationship between persons involved in the investigation and the nature of legal professional privilege in the context of that investigation. She says that the fact that Ms O'Brien communicated with Mr Kelly within a solicitor-client relationship for the dominant purpose of giving advice and receiving instructions, does not preclude communications being made by her to Mr Kelly for the purposes of the investigation. 28 Ms Allars submits that the applicant's submissions in regard to the second claimed special circumstance are based on an incorrect assumption that the respondent was under an obligation to make submissions in these proceedings that were identical with those it made in proceedings before Wilson JM. In any event, she says that the claimed inconsistency appears to be based on the applicant's misunderstanding of the role of Mr Kelly. She contends that the applicant's allegations, which comprise the second claimed special circumstance are false, entirely without foundation, and should not have been made. 29 Ms Allars submits that the applicant's submissions with respect to the remaining claimed special circumstance are unfounded. She says that none of the claimed special circumstances reflects a matter capable of falling within any of the factors set out in the Tribunal's Practice Note No 12 on costs and that there is no special circumstance which warrants an award of costs against the respondent under section 88(1) of the ADT Act. Findings 30 In Howell v Macquarie University I stated at paragraphs [105] – [106]: In my view, the clause 10 exemption applies as follows: … Documents 73 – 79. The memoranda and emails contain advice given in relation to the respondent's legal obligations and rights and make reference to further instructions. 106 In my view each of these documents has a clear nexus with the ongoing assistance, of a legal nature, that the legal advisor was rendering to the University and is therefore subject to legal advice privilege and exempt from release pursuant to clause 10 of Schedule 1 to the FO Act. Editing of the exempt matter is reasonably practicable in regard to Documents 3, 14, 21 and 43. It is not reasonably practicable in regard to Documents 73 – 79. 31 The issue for determination here is whether the Tribunal should direct that the exempt matter be released. 32 The Tribunal's President dealt with a claim to legal professional privilege in his recent decision in Cianfrano v Director General, Premier's Department [2007] NSWADT 216. He specifically considered whether exempt matter should be released and observed that the Tribunal has a broad, unfettered discretion to release exempt documents, matching that of the agency. The President reviewed a number of authorities that have considered the issue and stated at paragraph [24]: 24 At this early point in the exercise of this power, the following principles to guide the exercise of the discretion have emerged: (1) The Tribunal must first ascertain whether the matter is exempt matter. (2) The Tribunal should only exercise the power to decline to refuse disclosing exempt matter where there are strong grounds justifying the overriding of the exemption. (3) The question of whether there are strong grounds should take account of the objects of the FOI Act as expressed in s 5. (4) Even in the case of matter that falls within one of the 'restricted documents' categories of exemption (see cll 1 (Cabinet documents), 2 (Executive Council documents) and 4 (Documents affecting Law Enforcement and Public Safety) of Schedule 1) the only absolute exemption arises where the Minister has granted a certificate pursuant to s 59. (5) In the case of restricted documents, particular account should be taken of the concern addressed by s 5(2)(b), i.e. whether or not a restriction of access is 'reasonably necessary for the proper administration of government'. 33 The President quoted views expressed by Maxwell P in the Victorian Court of Appeal decision in Secretary to the Department of Justice v Osland [2007] VSCA 96. He said at paragraph [30]: 30 It will be seen that Maxwell P rejected the suggestion that the passage of time will necessarily be relevant to the protection of certain classes of documents. In these remarks, his Honour focused on the intrinsic value of upholding the privilege regardless of any particulars as to the content of the document or the currency of the issues or controversies with which it deals. This view reflects a concern that any 'watering down' of the secrecy traditionally accorded to communications protected by legal professional privilege would reduce the preparedness of clients to communicate frankly with their legal advisers. In turn, the administration of justice would be impaired. 34 Those views are consistent with the arguments presented by Ms Allars and are also acknowledged by Mr Howell. 35 It seems to me that in light of the views expressed in Daniels Corporation referred to above, there must be some doubt as to whether the override discretion, which arises by virtue of section 63 of the ADT Act read in conjunction with section 25(1)(a) of the FOI Act, extends to communications protected by legal professional privilege. It is not necessary that I resolve that issue in this matter because if a section 25(1) discretion exists, I would not exercise it in favour of the applicant. 36 I have considered the arguments presented by the parties on the issues applicable in the exercise of the discretion. In my view, none of those arguments are sufficient to override legal professional privilege in the present case. I do not consider that the applicant has raised considerations sufficient as to warrant the general release of the exempt documents under section 25 of the FOI Act. 37 I have also considered the arguments presented by the parties on the issue of costs. As indicated above, section 88(1) of the ADT Act allows an award of costs where there are special circumstances that warrant an award. There are many decisions which have considered this section however few awards have been made in the Tribunal's General Division. (see however Miriani v Commissioner for Fair Trading, Office of Fair Trading [2006] NSWADT 52) Where an award of costs has been made it has often been against a party whose conduct has had a seriously unfair impact on the other. It is clear that serious unfairness is not a test that applies in all circumstances, but it is still a very useful guide. In Cripps & Anor v G & M Dawson Pty Ltd & Anor (2006) NSWCA 81 at paragraph 60, the Court of Appeal considered whether special circumstances applied. It stated at paragraph [60]: For this purpose, it suffices that the circumstances are out of the ordinary. They do not have to be extraordinary or exceptional. While the finding of "serious unfairness" is not prerequisite to determining that there are special circumstances, it is nonetheless a highly relevant consideration. 38 Whilst it is clear that persisting in an almost unsupportable case will amount to special circumstances (see North Eastern Travelstops Pty Limited v Bradley and Ors (No. 2) [2005] NSWADTAP 17) that does not apply in a matter where the Tribunal is faced with material which might well result in a decision either way, depending on the fall of the evidence. I have weighed the respective arguments presented by the parties and I do not consider that the circumstances of this matter warrant an order for costs. 39 It follows that the application for release of the exempt documents should be dismissed and that there should be no order as to costs. Orders In accordance with the Reasons for Decision provided in Howell v Macquarie University [2007] NSWADT 95 ("the 20 April 2007 reasons"), the Tribunal orders that: 1. the decision under review is set aside. 2. in substitution for the decision: (a) the Respondent's determination that Documents 73-79 are exempt under clause 10 of Schedule 1 to the Freedom of Information Act 1989 (NSW) ("the FOI Act") is affirmed; (b) those parts of Documents 3, 14, 21 and 43 identified in paragraph 105 of the 20 April 2007 reasons are exempt under clause 10 and the documents are to be released with that exempt matter deleted; (c) those parts of Documents 16, 27, 34, 35, 37, 44, 48, 50, 55, 57, 63, 68, 70 and 71 identified in paragraph 110 of the 20 April 2007 reasons are exempt under clause 6 of Schedule 1 to the FOI Act and the documents are to be released with that exempt matter deleted; (d) those parts of Documents 32 and 38 identified in paragraph 92 of the 20 April 2007 reasons are exempt under clause 7 of Schedule 1 to the FOI Act and the documents are to be released with that exempt matter deleted; and (e) Documents 1-2, 4-13, 15, 17-20, 22-26, 28-31, 36, 39-42, 45-47, 49, 51-54, 56, 58, 60-62, 64-67, 69 and 72 are not exempt and are to be released. 3. no order for costs. 4. the release of additional material is to take place 28 days from the date of these orders. 29/10/2007 - 29/10/2007 Inconsistency between the decision and statement of reasons - Paragraph(s) Orders - paragraph's 1,2, sub paragraph (a) to (e), 3, 4 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.