Appeal Panel - Internal CITATION: McGuirk v University of New South Wales (No 2) [2008] NSWADTAP 11 APPELLANT (Gerard) Michael McGuirk PARTIES: RSPONDENT Univeristy of New South Wales FILE NUMBER: 069017 HEARING DATES: 19 October 2007 SUBMISSIONS CLOSED: 5 December 2007 DATE OF DECISION: 10 March 2008 BEFORE: Hennessy N - Magistrate (Deputy President); Wilson R - Judicial Member; Blake C - Non Judicial Member CATCHWORDS: leave to extend to the merits MATTER FOR DECISION: Principal matter DECISION UNDER APPEAL: McGuirk v University of New South Wales [2006] NSWADT 84 FILE NUMBER UNDER APPEAL: 053246 DATE OF DECISION UNDER APPEAL: 03/23/2006 LEGISLATION CITED : Protected Disclosures Act 1994 CASES CITED: Gamester Pty Ltd v Lockhart [1991] HCA 30; (1993) 112 ALR 623 University of New South Wales v McGuirk [2008] NSWADTAP 8 APPELLANT In person REPRESENTATION: RESPONDENT P Singleton, barrister ORDERS: The University's decision not to give Mr McGuirk access to the "Kirby memorandum" is affirmed. REASONS FOR DECISION Introduction 1 This decision follows on from a decision made by the Appeal Panel on 9 January 2007 (McGuirk v University of New South Wales [2007] NSWADTAP 1). Mr McGuirk appealed against a decision of the Tribunal under the Freedom of Information Act 1989 (FOI Act) refusing him access to a document held by the University of New South Wales. The document, known as the "Kirby memorandum", was written by Ms Carol Kirby, a solicitor employed by the University. It is addressed to Professor Rory Hume, the then Vice Chancellor. The memorandum was written in response to a letter Mr McGuirk wrote to Professor Hume on 24 November 2003. That letter advised Professor Hume that he had initiated legal proceedings in the Local Court against a number of current and former employees of the University for breaches of the Protected Disclosures Act 1994. Ms Kirby says that one of the purposes of the memorandum was to provide legal advice to Professor Hume in relation to those matters. 2 The University refused to give Mr McGuirk access to a copy of the Kirby memorandum on the ground that it was an exempt document because it was subject to legal professional privilege. The Tribunal affirmed the University's decision to refuse access to the Kirby memorandum. Mr McGuirk appealed against that decision. The Appeal Panel found that one of Mr McGuirk's grounds of appeal had been made out, that is that the Tribunal had erred in failing to interpret section 25(1)(a) of the FOI Act as giving the Tribunal a discretion to give access to exempt documents. The Appeal Panel said at [50], that although it is often appropriate to remit matters to the Tribunal when an error of law is found, in this case there are good reasons for the Appeal Panel to hear and determine this question. The Appeal Panel made the following order: Leave is granted for the appeal to be extended to the merits of the Tribunal's decision but only as to whether the Tribunal should exercise its discretion to give Mr McGuirk access to the Kirby memorandum, notwithstanding that it is an exempt document. 3 The Appeal Panel also made the following directions: 1. Within 28 days of the date of this decision, Mr McGuirk is to file and serve any evidence and submissions on which he intends to rely in support of his submission that the University should have exercised its discretion to give access to the Kirby memorandum notwithstanding that it is an exempt document. 2. Within 28 days of receiving Mr McGuirk's material, the University is to file and serve any evidence and submissions on which it intends to rely in response. 3. Registry to arrange a date for hearing that is suitable to the Appeal Panel and the parties. 4 A hearing date suitable to the parties and the Appeal Panel members was not able to be arranged until 19 October 2007. McGuirk did not appear on that date. Mr Singleton, representing the University, made submissions on the question of whether the correct and preferable decision was for the University to give Mr McGuirk access to the Kirby memorandum notwithstanding that it was an exempt document. Given Mr McGuirk's non-attendance, the Appeal Panel made the following directions: 1. The Appeal Panel will ask Mr McGuirk to provide an explanation for his non-attendance on 19 October 2007, within 7 days. If an explanation is provided, the Tribunal will seek submissions from the University as to whether the explanation is adequate and whether Mr McGuirk should be permitted to file any further material in relation to this matter. The Appeal Panel will then determine that issue on the papers. 2. If the Appeal Panel decides that Mr McGuirk has provided an adequate explanation for his non-attendance, he will be directed to file and serve any further submissions in relation to the 'override discretion' within a further 21 days. The University will be given a further 21 days to file and serve any submissions in reply. The Appeal Panel will then determine the 'override discretion' issue. 5 On 22 October 2007, the Tribunal wrote to Mr McGuirk advising him of these directions. On 22 November 2007 Mr McGuirk wrote to the Tribunal advising that he had not had an opportunity for at least a month to review the matters that he currently has before the Tribunal. He says he phoned the Registry on that day and subsequently conducted a thorough search of his 'in tray' and discovered an unopened envelope from the Tribunal containing the 22 October 2007 letter. He says that notwithstanding that he did not read that letter until 22 November 2007, he advised the Tribunal of the reason for his non-attendance on 19 October in a facsimile sent on 23 October 2007. That facsimile explained Mr McGuirk's non attendance in a separate matter (053437) on 23 October 2007. In explaining the reasons for his non-attendance on that day, Mr McGuirk referred to the fact that he had made an application to the Local Court in Burwood on 19 October 2007 for a warrant to be issued pursuant to section 229 of the Criminal Procedure Act 1986 for the arrest of the Commissioner of the New South Wales Police, Andrew Scipione. Mr McGuirk apologised for his non-attendance on 23 October 2007. Mr McGuirk submitted that he clearly had good reasons not only for failing to attend the Tribunal on 19 October 2007, but also for failing to comply with the directions for filing further material. 6 By letter of 28 November 2007, the University submitted that Mr McGuirk's explanation of his non-attendance was not adequate for the following reasons: 1. Mr McGuirk admits that he did not write to the Tribunal advising of his reasons for non-attendance until 23 October 2007, four days after the hearing day. 2. Mr McGuirk was always aware that the matter was listed for hearing on 19 October 2007 as early as 6 August 2007, when the Tribunal wrote to him. Despite this, he offers no reason for his discourtesy in failing to inform the Tribunal or the University before the hearing date, of his intention to not attend the hearing. 3. The reasons for his non-attendance, as set out in his letter of 23 October 2007 are not a sufficient excuse for his non-attendance. There is no rule of law, or ethical or other code of conduct applicable to Mr McGuirk (who is not legally qualified) that requires that criminal proceedings (of which in any event he was an applicant) take precedence over civil proceedings. It was always open to him to instruct a lawyer to appear on his behalf in either set of proceedings but he chose not to do so. 4. The fact that Mr McGuirk is involved as an applicant in a large number of different legal actions is no excuse for his failure to notify the Tribunal of this proposed non-attendance. 7 On 5 December 2007 the Registry wrote to the parties advising that the Appeal Panel was of the view that Mr McGuirk has not provided an acceptable explanation for his non-attendance on 19 October 2007 and that consequently the appeal will be determined on the basis of the submissions before the Tribunal on that date. The parties were also advised that reasons for the Appeal Panel's view that Mr McGuirk's explanation was not acceptable would be provided in the reasons for decision. We now provide those reasons. 8 We accept that Mr McGuirk was in another court on 19 October 2007. However, he had been on notice of the hearing since 6 August 2007. If he was unable to attend on that day, he should have advised the Tribunal and the University prior to the hearing. He has not explained his failure to do so. Furthermore, Mr McGuirk had an opportunity to provide written submissions following the decision in the first matter. He has had ample opportunity to bring any relevant matters to the Appeal Panel's attention. Consequently, we will determine the remaining issue on the basis of the evidence before the Tribunal, written submissions from both parties and Mr Singleton's oral submissions to the Appeal Panel. Was the University's decision not to give Mr McGuirk access to the Kirby memorandum the correct and preferable decision? 9 The remaining question for the Appeal Panel is whether the University should have exercised its discretion under section 25(1)(a) of the FOI Act to give Mr McGuirk a copy of the Kirby memorandum even though that document is an exempt document. The Appeal Panel examined the nature and extent of the discretion in a previous decision, University of New South Wales v McGuirk [2008] NSWADTAP 8. We adopt the reasoning set out in that decision at [9] to [25]. At [25] the Appeal Panel said: By exempting documents subject to legal professional privilege, parliament has decided that, in general, the interests in maintaining legal professional privilege should prevail over the competing interest of open and accountable government. Although the public interest in maintaining legal professional privilege is very strong, documents the subject of legal professional privilege may be disclosed where the particular circumstances of the case justify disclosure. However, the reason for disclosing exempt documents needs to be sufficient to displace the assumption that the exemption is reasonably necessary for the proper administration of Government. 10 In his written submissions to the Tribunal dated 24 October 2005 Mr McGuirk identified as an issue to be decided, whether the Tribunal should order the release of the document using the "public interest override powers vested in the Tribunal by the NSW Parliament." However, Mr McGuirk did not identify any particular reason, which he said was sufficient to justify disclosure. According to Mr Singleton, it is incumbent on Mr McGuirk to point to the relevance of material that was filed. We agree that the Appeal Panel is not required to go through large quantities of material in search of evidence that could possibly support Mr McGuirk's claim. That point was made clear by the High Court in Gamester Pty Ltd v Lockhart [1991] HCA 30; (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. Nevertheless, in the absence of any specific submissions on this point, we have done our best to identify the evidence that could be relevant when considering whether the circumstances of the case justify disclosure. 11 On the basis of the material before us, we understand that Mr McGuirk is asserting that he has presented evidence which demonstrates that Ms Kirby has consistently acted in breach of her obligations to the University and her profession, by: (a) assisting in the subversion of both the letter and the intent of University policies; (b) assisting in the cover up of criminal breaches of the Protected Disclosures Act 1994; (c) suppressing the rights of individual members of the University; (d) placing the interests of individual officers of the University ahead of those of the University as a whole; and (e) misleading the governing Council of the University. 12 This submission was put in support of Mr McGuirk's assertion that the Kirby memorandum was not subject to legal professional privilege because it was made in furtherance of an improper purpose. The Tribunal and the Appeal Panel have rejected the allegation that the Kirby memorandum was made in furtherance of an improper purpose. The Tribunal accepted Ms Kirby's evidence in relation to the preparation of the memorandum and her evidence refuting Mr McGuirk's allegation that the advice was in furtherance of any improper purpose. The Tribunal also accepted that Ms Kirby was competent and independent and that the advice was not communicated in furtherance of an illegal purpose. The Appeal Panel has found that the Tribunal made no error of law in reaching those conclusions. 13 We assume that Mr McGuirk would have sought to rely on evidence of an improper purpose to submit that the Appeal Panel should exercise its override discretion. However, he is not permitted to re-agitate his claim that the memorandum was made in furtherance of an illegal purpose because that issue has already been determined. Consequently, in the absence of a reason, particular to the circumstances of the case, for disclosing the Kirby memorandum, we affirm the University of New South Wales's decision to refuse to give access to that document. 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.