Set aside by Appeal : Set Aside by Appeal on 8/12/2006: University of New South Wales v Gerard Michael McGuirk [2006] NSWSC 1362 CITATION: McGuirk v University of New South Wales [2005] NSWADT 289 DIVISION: General Division APPLICANT PARTIES: Gerard Michael McGuirk RESPONDENT University of New South Wales FILE NUMBER: 053100 HEARING DATES: 16/06/2005, 8/08/2005 SUBMISSIONS CLOSED: 08/08/2005 DATE OF DECISION: 12/08/2005 BEFORE: Montgomery S - Judicial Member APPLICATION: access to documents - legal professional privilege - Freedom of Information Act - access to documents - legal professional privilege MATTER FOR DECISION: Principal matter LEGISLATION CITED : University of New South Wales Act 1989 Freedom of Information Act 1989 Attorney-General (NT) v. Maurice (1986 161 CLR 475 Baker v Campbell (1983) 49 ALR 385 Bennett v Vice Chancellor, University of New England [2002] NSWADT 175 Daniels Corp International Pty. Limited v Australian Competition and Consumer Commission [2002] HCA 49 CASES CITED: DK -v- Commissioner of Police, New South Wales Police Service [2002] NSW ADT 172 Doelle v Legal Aid Office, Decision No 93005 (24 November 1993) Esso Australia Resources Ltd v The Commissioner of Taxation of the Commonwealth of Australia (1999) 168 ALR 123 Law Society of New South Wales v General Manager, Workcover Authority of New South Wales (GD) [2004] NSWADTAP 40 Mann v Carnell [1999] HCA 66 APPLICANT REPRESENTATION: In person RESPONDENT P Singleton, barrister ORDERS: 1. The determination under review is set aside; 2. I make the fresh determination that the Joint Memorandum of Advice - Phillips Fox Lawyers dated 2 July 2002 ("the Walker-Bell advice") should be released. REASONS FOR DECISION 1 Mr McGuirk has applied to the University of New South Wales for access to certain documents under the Freedom of Information Act 1989 ("the FOI Act"). Amongst other things he requested: "Legal advice provided to the UNSW Council by external counsel in regard to the rights and legal obligations of Council members under the University New South Wales Act 1989" 2 The University did not determine Mr McGuirk's FOI application within the 21-day period provided for in section 24(2) of the FOI Act, and the application was therefore deemed to have been refused. Section 24(2) of the Act reads as follows: "(2) An agency that fails to determine an application within 21 days after the application is received by the agency shall, for the purposes of section 34 and other provisions of this Act, be taken to have determined the application by refusing access to the document to which it relates." 3 Mr McGuirk requested an internal review of the deemed determination of the University to refuse him access to the document. With this request he provided a copy of the Tribunal's decision in the matter of Bennett v Vice Chancellor, University of New England [2002] NSWADT 175 which had dealt with the issue of waiver of legal professional privilege. 4 Ms Judith Davoren determined Mr McGuirk's internal review application. Ms Davoren identified three documents that fell within the scope of this aspect of Mr McGuirk's application. These were: Joint Opinion - Kemp Strang Lawyers dated 19 October 1999 Joint Memorandum of Advice - Phillips Fox Lawyers dated 2 July 2002 Advice - Minter Ellison Lawyers dated 3 June 2002 5 Ms Davoren decided to withhold the three documents in full. She asserted that the documents were exempt from production pursuant to clause 10 of schedule 1 of the FOI Act. She considered that the withheld documents record legal advice provided by a legal advisor to the University and that release of the withheld documents would result in disclosure of a confidential communication made between the University and its legal advisor. 6 Clause 10 of schedule 1 of the FOI Act provides: "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." 7 Mr McGuirk applied to the Tribunal for an external review of the University's determination. The only document that is the subject of this application is the Joint Memorandum of Advice - Phillips Fox Lawyers dated 2 July 2002. That document is a report provided to the University by Mr Bret Walker SC and Mr Andrew Bell ("the Walker-Bell advice"). 8 Mr McGuirk asserts that even if the Walker-Bell advice would have been subject to legal professional privilege in the first instance, this privilege had been waived by the provision of a copy of the advice to a third party. He asserts that a copy of the advice was provided to Professor Kenneth Dutton, Deputy Chancellor of the University Newcastle and that a copy of the advice was also provided to Professor Brian English, Deputy Vice-Chancellor of the University of Newcastle. 9 Mr McGuirk asserts that the University has lost its claim to legal professional privilege in regard to the document sought, and therefore this document in no longer an exempt document for the purposes of Clause 10 of Schedule 1 of the FOI Act. Relevant legislation 10 Under section 16 of the FOI Act a person has a right to apply for access to an agency's documents in accordance with that Act. The agency must determine whether or not the person will be granted the access sought. It may do so only on grounds specified in the FOI Act. 11 Section 61 of the FOI Act places the onus of proving that a determination to refuse access to documents is justified on the agency that makes that determination. One ground on which the agency may refuse access to a document is that the document is exempt pursuant to section 25 of the FOI Act. An exempt document is defined by section 6 to include a document referred to in Schedule 1 of the FOI Act. The agency has a discretion to exercise under section 25. It "may" provide access to the document. It is not bound to refuse access if a document is exempt. 12 The objects of the FOI Act, however, make it clear that as far as possible the public should have the right to obtain access to government records. Nonetheless, if a document is found to be exempt, the agency concerned must find special or overriding circumstances or interests should it wish to release it. Here, the University relies on clause 10 of Schedule 1 of the FOI Act. Legal Professional Privilege 13 The principles of legal professional privilege are now well established. A confidential communication will be protected by legal professional privilege if it was created for the dominant purpose of obtaining or giving legal advice or assistance, or for use in actual or anticipated litigation: Esso Australia Resources Ltd v The Commissioner of Taxation of the Commonwealth of Australia (1999) 168 ALR 123; Daniels Corp International Pty. Limited v Australian Competition and Consumer Commission [2002] HCA 49. 14 In Law Society of New South Wales v General Manager, Workcover Authority of New South Wales (GD) [2004] NSWADTAP 40 the Tribunal's appeal Panel undertook a review of the applicable authorities on the issue. It is unnecessary for present purposes that I undertake a similar process. Mr McGuirk does not assert that the Walker-Bell advice would not have been subject to legal professional privilege in the first instance. On the evidence available, I see no reason to doubt that the Walker-Bell advice was, when created, protected by legal professional privilege. The advice was procured at the request of members of the University Council. It was written on a confidential basis for the sole purpose of providing legal advice in the course of a client-lawyer relationship between the Council and the two lawyers. The only issue of legal processional privilege that is raised in this matter for determination by the Tribunal is whether or not the privilege has been lost by waiver. 15 The privilege is that of the client and not of the legal adviser. It may be waived by the client but not by the lawyer: Baker v Campbell (1983) 49 ALR 385; Attorney-General (NT) v. Maurice (1986 161 CLR 475. 16 In Mann v Carnell [1999] HCA 66 Gleeson CJ and Gaudron, Gummow and Callinan JJ stated the test of waiver in the following terms: "28. At common law, a person who would otherwise be entitled to the benefit of legal professional privilege may waive the privilege. It has been observed that "waiver" is a vague term, used in many senses, and that it often requires further definition according to the context [19]. Legal professional privilege exists to protect the confidentiality of communications between lawyer and client. It is the client who is entitled to the benefit of such confidentiality, and who may relinquish that entitlement. It is inconsistency between the conduct of the client and maintenance of the confidentiality which effects a waiver of the privilege [20]. Examples include disclosure by a client of the client's version of a communication with a lawyer, which entitles the lawyer to give his or her account of the communication [21], or the institution of proceedings for professional negligence against a lawyer, in which the lawyer's evidence as to advice given to the client will be received [22]. 29. Waiver may be express or implied. Disputes as to implied waiver usually arise from the need to decide whether particular conduct is inconsistent with the maintenance of the confidentiality which the privilege is intended to protect. When an affirmative answer is given to such a question, it is sometimes said that waiver is "imputed by operation of law"[23]. This means that the law recognises the inconsistency and determines its consequences, even though such consequences may not reflect the subjective intention of the party who has lost the privilege. Thus, in Benecke v National Australia Bank [24], the client was held to have waived privilege by giving evidence, in legal proceedings, concerning her instructions to a barrister in related proceedings, even though she apparently believed she could prevent the barrister from giving the barrister's version of those instructions. She did not subjectively intend to abandon the privilege. She may not even have turned her mind to the question. However, her intentional act was inconsistent with the maintenance of the confidentiality of the communication. What brings about the waiver is the inconsistency, which the courts, where necessary informed by considerations of fairness, perceive, between the conduct of the client and maintenance of the confidentiality; not some overriding principle of fairness operating at large. 30. In Goldberg v Ng [25] this Court considered a case in which there was disclosure of a privileged communication to a third party, for a limited and specific purpose, and upon terms that the third party would treat the information disclosed as confidential. The Court was divided upon whether, in the circumstances of the case, privilege was waived. However, the reasoning of all members of the Court was inconsistent with the proposition that any voluntary disclosure to a third party necessarily waives privilege. No application was made on the present appeal to re-open Goldberg or any of the earlier authorities on the subject. In Goldberg, reference was made [26] to the statement of Jordan CJ in Thomason v The Council of The Municipality of Campbelltown [27]: "The mere fact that a person on some one occasion chooses to impart to another or others advice which he has received from his solicitor indicates no intention on his part to waive his right to refuse on other occasions to disclose in evidence what that advice was, and supplies no sufficient reason for depriving him of a form of protection which the law has deemed it specially necessary to throw around communications between solicitor and client". 31. His Honour's reference to intention must be read subject to what has been said above." 17 The relevant citations from that passage are as follows: [19] Ross T Smyth & Co Ltd v T D Bailey, Son & Co [1940] 3 All ER 60 at 70; Larratt v Bankers and Traders Insurance Co Ltd (1941) 41 SR (NSW) 215 at 226; The Commonwealth v Verwayen (1990) 170 CLR 394 at 406, 422, 467, 472. [20] Cross on Evidence, 5th Aust ed (1996), par 25005; Attorney-General (NT) v Maurice (1986) 161 CLR 475 at 497-498. [21] Benecke v National Australia Bank (1993) 35 NSWLR 110. [22] Lillicrap v Nalder & Son (a firm) [1993] 1 WLR 94; [1993] 1 All ER 724. [23] eg Goldberg v Ng (1995) 185 CLR 83 at 95. [24] (1993) 35 NSWLR 110. [25] (1995) 185 CLR 83. [26] (1995) 185 CLR 83 at 120. [27] (1939) 39 SR (NSW) 347 at 355. Onus 18 As noted above, the burden of establishing that the Walker-Bell advice is an exempt document pursuant to Clause 10 of Schedule 1 of the FOI Act lies on the University. However, Mr McGuirk asserts that the privilege has been waived. In my view there is a burden on Mr McGuirk to present prima facie evidence to support that contention. Once he has satisfied this requirement, the burden then shifts to the University to establish that waiver has not occurred. 19 This view is consistent with that of the Tribunal's President in DK -v- Commissioner of Police, New South Wales Police Service [2002] NSW ADT 172 and the decision of the Information Commissioner of Queensland in Doelle v Legal Aid Office, Decision No 93005 (24 November 1993) to which the President referred. In Doelle v Legal Aid Office it is stated at [18]: "Pursuant to s 81 of the FOI Act, [the agency] has the onus of establishing that its decision is justified. ... [W]hile on a review ... the ultimate legal onus remains on [the agency], a practical or evidentiary onus shifts to [the applicant] to provide evidence to support his entitlement to relief ... on the basis that the documents in issue contain information that is inaccurate, incomplete, out-of-date or misleading." 20 In respect of an application under the Act in which an applicant asserts that an agency has waived its legal professional privilege in the document to which access is sought, the ultimate legal onus remains on the agency. However, a practical or evidentiary onus shifts to the applicant to provide evidence to support their claim that the agency has waived its claim to legal professional privilege in the relevant document. 21 It is therefore necessary to determine in the first instance whether Mr McGuirk has presented enough evidence to shift, to the University, the burden of proving that legal professional privilege has not been waived. Mr McGuirk's case on preliminary issue of onus 22 Mr McGuirk relies on a passage from page 1803 of the transcript of proceedings in Operation Orion Reference: E03/0895 before the Independent Commission Against Corruption at Sydney on Wednesday, 8 December 2004. The passage involves evidence given to the ICAC by Professor Dutton. Professor Dutton stated: "On 24 September I was in Sydney having lunch with some friends, one of whom was a very, very experienced and senior member of the council of another New South Wales university and she, too, had seen the story about the ombudsman's report and so on and she said, "So, what's happening to this professor?" and I said, "I don't know, I'm not allowed to know" and I explained what I'd been told. She said, "We had a similar situation in my university a year or so ago and we sought the advice of senior counsel on the matter. Would you like me to send you, in confidence, a copy of senior counsel's advice?" I said, "Yes, I'd be grateful." She sent me that advice which seemed to me to bear out the stand that I had taken on this matter. The next development was that on 9 and 10 October 2003, there was what's called a planning retreat, held at Port Stephens. We broke into groups and in the last group, the topic was the role of the council. I raised in this group my surprise that one wasn't allowed to know certain information for this industrial reasons. Present in the group were Professor English and Ms Beach and Ms Beach said, "Privacy provisions prevent you being told this." I go back a step and say that when I received the advice of senior counsel, I sent it to Professor English saying this seems to me to support what I'm saying, rather than what you're saying. He got back to me before the next following council meeting to say that he'd looked at the advice. His own advice was that that didn't apply in Newcastle. I replied that although the situation and circumstances were different, it seemed to me that the same principle applied, namely the right - that council had the right to seek any information that it wished from the vice-chancellor or the deputy vice-chancellor. That was in fact quite specific in the advice of senior counsel. We differed on that. Once I was told that privacy provisions now prevented this from being divulged". 23 Mr McGuirk also tendered a document that purports to be an email dated 22 June 2005 from Professor Dutton to Mr McGuirk. I note that this document is not presented in a form that allows it to be authenticated in any way. In part, this document states: "The advice of Senior Counsel Which I mentioned at the ICAC hearing on 8 December 2004 was made available to me In Confidence, with the approval of the Chancellor of the University concerned. I took "In Confidence" to mean that I would not use the document, or pass it on to anyone else, for any purpose outside of the matter which I was pursuing at the University of Newcastle. I had in mind, in particular, the issue of lawyer-client confidentiality, which is the reason why I was at pains not to disclose at the ICAC hearing the name of the Senior Counsel, nor of the university concerned, nor of the Council member concerned." 24 Mr McGuirk contends that the report to which Professor Dutton was referring is the Walker-Bell advice. Mr McGuirk also contends that he has subsequently obtained a copy of at least part of that advice. Mr McGuirk was not prepared to reveal the source of the document that he has obtained. He has quoted from part of the document that he asserts he has obtained in his written submissions to the Tribunal. The University's case on preliminary issue of onus 25 The University submits that the evidence filed by Mr McGuirk should not be accepted, or at least should not persuade the Tribunal that a member of the University Council did disclose a part of the Walker-Bell advice as allege or that the University's Chancellor, Dr Yu, authorised the disclosure. 26 However, it is submitted, even if the evidence is received and accepted it would not be evidence of a waiver of privilege. Only the owner of the privilege, the client, is able to waive privilege. In this case the owner of the privilege is the University Council. No individual member of the Council, not even the Chancellor, has power to waive privilege on behalf of the Council. At best, Mr McGuirk's case is that one or two individual members of the Council, acting in private capacity, have without authority, disclosed part of a document. Finding on preliminary issue of onus 27 It is apparent from reference to the copy of the Walker-Bell advice that has been provided to the Tribunal that Mr McGuirk has indeed accurately cited from parts of that document. The University has conceded as much. 28 On the evidence available I am satisfied that a member of the Council of the University probably provided a copy of the Walker-Bell advice to Professor Dutton. It is also probable that Professor Dutton passed a copy of the document on to Professor English. It is also probable that the document that Mr McGuirk has obtained is a copy of that document. 29 This does not necessarily mean that the University has waived its legal professional privilege. However, I am satisfied that Mr McGuirk has presented enough evidence to shift the burden of proving that legal professional privilege has not been waived onto the University. The University's case on the issue of waiver 30 As noted, the University asserts that no individual member of the University Council can waive privilege on behalf of the Council. Mr Singleton has asserted that in order to waive privilege there must be an inconsistency between the conduct of the client, in this case the University Council, and maintenance of the confidentiality that the legal professional privilege exists to protect. 31 The University relies on a statement of Ms Melanie Harris who is the executive officer to the Vice Chancellor of the University. Ms Harris states that she has been advised by the Vice Chancellor that he had queried with the previous Chancellor, Dr Yu, who had advised him that he could not recall having authorised or purported to authorise the release of the Walker-Bell advice. 32 The University relies on a statement of Mr John-Daniel Encel who is a research and policy officer in the Secretariat Services Department at the University. Mr Encel states that the Walker-Bell advice was tabled at a confidential special meeting of Council on 10 July 2002. The then-Chancellor, Dr Yu, stressed that the Walker-Bell advice was confidential. Mr Encel further states that he has perused the electronic and paper minutes of Council for the period from July 2002 to June 2005 (inclusive) and has ascertained that Council has not passed any other resolution with respect to this advice. It has never resolved to waive legal professional privilege over this advice or authorised any other person to do so. Several documents that purport to be minutes of Council meetings are in evidence. None of these documents suggest that such a resolution was ever passed. Mr McGuirk's case on the issue of waiver 33 Mr McGuirk submits that the accuracy or otherwise of the evidence given by Professor Dutton to the ICAC could have been tested by the University by telephoning Professor Dutton and inquiring of the facts, or, if Professor Dutton was recalcitrant in these matters, by summonsing him to appear before the Tribunal. The University has done neither of these things. 34 Mr McGuirk asserts that the full Walker-Bell advice was provided to Professor Dutton but submits that whether Professor Dutton was provided with the advice in full or in part is largely irrelevant to the question as to whether the University has waived its privilege in the Walker-Bell advice. Whether this occurred with the authority of the then Chancellor of the University or not is similarly irrelevant, and, in any case the University has not presented any evidence to refute this assertion. 35 He further asserts, based on the evidence of the transcripts of the ICAC 'Orion' Public Hearings, that the full Walker-Bell advice was also provided to the ICAC. If so, he submits, consistent with the principles enunciated in Goldberg v Ng (1995) 185 CLR 83, privilege is in any case waived. 36 He argues that the University's assertion that only the Council is able to waive privilege in the Walker-Bell advice is an absurd proposition. If this were the case then the only mechanism by which such waiver could be effected is by a resolution of the Council. This, he submits, flies in the face of the principle underpinning legal professional privilege. He says that it also reflects a misunderstanding of how universities conduct their business. The University Council has the power to delegates its authority in any matter apart from its power of delegation. The Executive of the University, including the Vice-Chancellor, has power to act on behalf of the University, to the extent that such powers are delegated under section 16 of the University of New South Wales Act 1989. 37 Mr McGuirk submits that the University has clearly failed to discharge the onus on it to prove that legal professional privilege has not been waived. Finding on the issue of waiver 38 As I have indicated above, it is my view that Mr McGuirk has presented enough evidence to shift the burden of proving that legal professional privilege has not been waived onto the University. While the evidence presented by Mr McGuirk is not strong, it is, in my view, sufficient to require the University to produce positive evidence to refute the suggestion that the Walker-Bell advice given to Professor Dutton was not given with the approval of the Chancellor of the University. 39 The evidence provided by Ms Harris is of little value in resolving this issue. I agree with Mr McGuirk that the University could have addressed the issue by summonsing Professor Dutton to appear before the Tribunal. It did not do so. There is no basis on which I could conclude who provided the copy of the Walker-Bell advice to Professor Dutton or on what terms it was provided. There is no basis on which I could conclude whether or not it was provided with the approval of the Chancellor of the University. 40 I accept the evidence that the University Council has not passed any resolution to waive legal professional privilege over the Walker-Bell advice or authorised any other person to do so. However, I do not accept the argument that the only mechanism by which such waiver could be effected is by a resolution of the Council. In my view, if in fact the Walker-Bell advice given to Professor Dutton was given with the approval of the Chancellor of the University, that could in some circumstances be sufficient to waive the legal professional privilege that attaches to the document. I am unable to finally determine this issue. In the circumstances, I am not satisfied that the University has discharged the onus placed on it. 41 It follows, in my view, that the University has not proved that the determination to refuse access to the Walker-Bell advice is justified. Accordingly, it is my view that the document should be released. Orders: 1. The determination under review is set aside. 2. I make the fresh determination that the Joint Memorandum of Advice - Phillips Fox Lawyers dated 2 July 2002 ("the Walker-Bell advice") should be released. 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.