Bennett v Vice Chancellor, Unviersity of New England [2002] NSWADT 175

CITATION: Bennett v Vice Chancellor, Unviersity of New England [2002] NSWADT 175 DIVISION: General Division APPLICANT PARTIES: Dr William Robinson Bennett RESPONDENT Vice Chancellor, University of New England FILE NUMBER: 013184 HEARING DATES: 20/12/01 SUBMISSIONS CLOSED: 02/01/2002 DATE OF DECISION: 09/20/2002

BEFORE: Britton A - Judicial Member APPLICATION: access to documents - confidential material - access to documents - legal professional privilege - Freedom of Information Act - access to documents - confidential material - Freedom of Information Act - access to documents - legal professional privilege MATTER FOR DECISION: Principal matter Administrative Decisions Tribunal Act 1997 LEGISLATION CITED : Evidence Act 1995 Freedom of Information Act 1989 Kay v Commissioner of Corrective Services [2000] NSWADT 67 Esso v Commissioner of Taxation (1999) 201 CLR 49 CASES CITED: Coco v AN Clark (Engineers) Ltd [1969] RPC 41 Saltman Engineering (1948) 65 RPC 203 Re maher and Attorney-General's Department (No 2) (1986) 4 AAR 266 Esso Australia Resources Limited v The Commissioner of Taxation [1999] HCA 67 APPLICANT REPRESENTATION: In person RESPONDENT E Frizell, barrister ORDERS: 1. The decision under review is affirmed

1 The applicant in this matter, Dr William Bennett, was a Ph.D student at the University of New England ("the university"). His doctoral thesis was originally submitted in 1983 and was ultimately rejected in 1990. Professor Klaus Rohde was his supervisor for much of time he was a Ph.D candidate. On 29 July 1997, after a series of inquiries, however, the University Council ("the Council") resolved to award him a doctorate. 2 Dr Bennett has made a previous successful application under the Freedom of Information Act (NSW) 1989 ("the FOIA") to this Tribunal. This application is a request for review of a decision of the university following its rejection of his application for disclosure of certain information and its internal review of the primary decision to refuse access to the information in question. 3 The issue for determination is whether the university, in refusing Dr Bennett access to these documents, made the correct and preferable decision having regard to any relevant factual material and any written or unwritten law: s 63(1) of the Administrative Decisions Tribunal Act 1997 (NSW) ("the Tribunal Act"). 4 The Tribunal has jurisdiction to review this decision pursuant to s 38 of the Tribunal Act and s 53 of the Act. Background 5 In about December 1990, Dr Bennett commenced an action in the District Court against the university, an appeal pursuant to the FOIA. At that stage the Administrative Decisions Tribunal had not yet been created and the Ombudsman and the District Court considered applications for review and appeals under the Act. Dr Bennett was successful in that action in having the university's records concerning him amended. The record in question was a handwritten note made by Professor Rohde concerning Dr Bennett's Ph.D thesis and candidature. Dunford DCJ (as he then was) ordered the deletion of the handwritten note from the university's records. 6 In July 1992, following that success, Dr Bennett commenced a defamation action against the university and Professor Rohde in the District Court. That action was defended by the university. 7 On 10 May 2001, Dr Bennett applied to the university for certain information, which he believed it held in its records. In the following terms, he sought access to the following documents or parts of documents referred to in a letter dated 5 August 1993 from Professor Klaus Rohde to Professor RHT Smith, the university's Vice-Chancellor: