McGuirk v University of New South Wales (No 2) [2006] NSWADT 178

CITATION: McGuirk v University of New South Wales (No 2) [2006] NSWADT 178

DIVISION: General Division

APPLICANT PARTIES: Michael McGuirk RESPONDENT University of New South Wales

FILE NUMBER: 053164

HEARING DATES: 9/05/2006

SUBMISSIONS CLOSED: 05/09/2006

EXTEMPORE DECISION DATE: 05/09/2006

DATE OF DECISION: 06/09/2006

BEFORE: Montgomery S - Judicial Member

CATCHWORDS: Summons - application for issue of

MATTER FOR DECISION: Preliminary matter

LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Independent Commission Against Corruption Act 1988

APPLICANT In person REPRESENTATION: RESPONDENT P Singleton, Barrister

ORDERS: Mr. McGuirk's application for leave to have a summons issued to Professor Wainwright is refused.

REASONS FOR DECISION 1 The substantive matter relates to an application by Mr. McGuirk to the University for access to certain documents under the Freedom of Information Act 1989 ("the FOI Act"). 2 The Tribunal has issued a Practice Note in relation to issuing summonses. Relevantly, Practice Note No. 7 provides: "The purpose of this Practice Note is to provide information to parties to matters before the Tribunal as to Tribunal practice in relation to issuing summonses. The relevant legislation is found at section 84 of the Administrative Decisions Tribunal Act 1997 and rules 20 and 46 of the Administrative Decisions Tribunal (Interim) Rules 1998 which are set out in Schedule 1 to the Administrative Decisions Tribunal Rules (Transitional) Regulation 1998. … 12. Special provisions for issuing summonses in Freedom of Information, Privacy, Anti-Discrimination, Guardianship and Protected Estates and Appeal Panel matters: Parties to applications under the Freedom of Information Act, Privacy Act, parties to complaints referred to the Equal Opportunity Division under the Anti-Discrimination Act, parties to applications under the Guardianship Act 1987 or Protected Estates Act 1983 or parties to internal or external appeal to the Appeal Panel are required to submit, at the planning meeting, case conference or directions hearing, a list of summonses they intend to issue, and to identify the relevance of the evidence, document or thing to the proceedings. The judicial member allocated to the case will consider the list of summonses. Where the judicial member approves of the issuing of some or all of the summonses listed in submission by a party, that party can then apply to the Registrar for the approved summonses to be issued for the purposes described in paragraph 3 of this Practice Note. Where the list of summonses is submitted after the planning meeting, case conference or directions hearing, or where such a preliminary stage is not being conducted, application to issue the summonses should be filed at the registry. The registry will then submit the material to the judicial member for consideration." 3 Mr. McGuirk has requested that leave be granted for the issue of a summons requiring the attendance of Professor Mark Wainwright, the Vice-Chancellor of the University, at the hearing of this matter. 4 On 9 May 2006, following the hearing of arguments in relation to the question of whether that leave should be granted, I refused Mr. McGuirk's request. Mr. McGuirk has requested written reasons for my decision. These reasons are provided in response to that request. 5 In the substantive application Mr McGuirk sought the following documents: 1. Volume 2 of the UNSW Annual Reports for 2001, 2002 and 2003. 2. Commentary on the 'MGI Technology Assurance Service Report' of April 2003 prepared by UNSW management and provided to the NSW Ombudsman in August/September 2003. 3. Copies of all referrals by UNSW to the NSW Auditor General, the Independent Commission Against Corruption, and the NSW Ombudsman during 2003. 4. Copies of correspondence with the Crown Solicitor's Office (CSO) in regard to the cost of providing material subpoenaed by the CSO in regard to the McGuirk v Niland & Ors matter. 5. Copy of the St James Ethics Centre report into the handling by UNSW management of the allegations made by Dr Clare He et al. against Professor Bruce Hall. (This document was provided to the Chancellor of UNSW in December 2004.) 6 Mr McGuirk asserts that Professor Wainwright's evidence is relevant with respect to the third category of documents. He referred to section 11 of the Independent Commission Against Corruption Act 1988 which provides that the principal officer of a public authority is under a duty to report to the ICAC any matter that the officer suspects on reasonable grounds concerns or may concern corrupt conduct. He asserts that as the principal officer of the University, the Vice-Chancellor was under an obligation to make a report to the ICAC in relation to allegations made against Professor Bruce Hall. 7 In 2003, Professor Hume held the position as Vice-Chancellor of the University. Following Professor Hume's resignation from that position in April 2004, Professor Wainwright was appointed Acting Vice-Chancellor of the University and he was subsequently appointed Vice-Chancellor. 8 Mr McGuirk asserts that there are reasonable grounds to suspect that the documents he sought under the third category of his FOI application do not exist, or at least the report to the ICAC which he says the Vice-Chancellor was legally obliged to make, does not exist. He further asserts that Professor Wainwright is the only person who can answer this question with certainty. 9 Mr McGuirk further submitted that the resistance by the University to the production of documents, which the Vice-Chancellor was obliged to provide to the ICAC, triggers a clear requirement for this Tribunal to determine whether or not the Vice-Chancellor is acting properly. 10 While Mr McGuirk accepts that Professor Wainwright was not the principal officer of the University during 2003, he says that he is Professor Hume's successor in that position, and the person who investigated the Hall allegations, and he is the only person who can really give the reasons why the University is resisting the production of the referrals. 11 The University opposed Mr McGuirk's request. Mr Singleton submitted that there is no forensic utility in summonsing Professor Wainwright. He asserted that Mr McGuirk's reason for wanting Professor Wainwright to come and give evidence is an ulterior one, not relevant to the proceedings or the question that has to be determined by this Tribunal and accordingly a summons should not issue. He points to two particular reasons for this assertion. The first is that Professor Wainwright was not the Vice-Chancellor in 2003 and therefore he would be the wrong person to summons for the purpose that Mr McGuirk has identified. The second reason is that whether or not the Vice Chancellor complied with any obligation under the Independent Commission Against Corruption Act in 2003 is not an issue in this case. Mr Singleton submitted that Professor Wainwright could not give any useful or relevant evidence on the question to be determined by the Tribunal and accordingly a summons should not issue. 12 In this matter the University failed to determine Mr. McGuirk's FOI application within the time provided for under the FOI Act. Section 34(6) of the FOI Act provides that an agency that fails to determine an internal review application within 14 days after it is received is taken to have made a determination refusing access to the document to which the application relates. Pursuant to section 61 of the FOI Act the burden of establishing that the determination is justified lies on the University. 13 If Professor Wainwright were to provide some evidence Mr. McGuirk would be entitled to cross-examine him. However, Mr Singleton indicated that the University relies on a statement of Ms Gibson, but does not propose to rely on any evidence by Professor Wainwright. In the absence of that evidence Mr. McGuirk can only speculate about what evidence Professor Wainwright may give and to that extent the exercise can be described as "a fishing expedition ". 14 In my view, the appropriate test for whether a summons should be issued is whether the evidence Professor Wainwright could give is necessary for disposing fairly of the proceedings. On the material before me I am not satisfied that the evidence Professor Wainwright would be able to give is either relevant to the matter that is to be determined or necessary for disposing fairly of the proceedings. Therefore, I see no reason for him to be summonsed. Having formed that view, the appropriate order is that the summons should not be issued. Order Mr. McGuirk's application for leave to have a summons issued to Professor Wainwright is refused.