Howell v Macquarie University [2008] NSWCA 26

New South Wales Court of Appeal

CITATION: Howell v Macquarie University [2008] NSWCA 26 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 30 January 2008

JUDGMENT DATE: 12 March 2008

JUDGMENT OF: Spigelman CJ at 1; Campbell JA at 2; Bell JA at 103

DECISION: 1. Appeal dismissed in matter 40731/07 2. Appellant to pay respondent's costs of both matter 40158 of 2007 and 40731 of 2007, including the costs of the Amended Notice of Motion dated 18 September 2007 in matter 40158 of 2007.

CATCHWORDS: ADMINISTRATIVE LAW – Freedom of information – access to documents – exempt documents – whether documents exempt from production by reason of legal professional privilege – sufficiency of proof of prima facie privilege – whether non-disclosure of exempt matter constitutes breach of procedural fairness – s 55 Freedom of Information Act 1989 –whether documents produced for improper purpose – whether sufficient evidence to raise prima facie case of improper purpose – whether Administrative Decisions Tribunal Appeal Panel erroneously made a finding that there was no evidence of improper purpose – whether Appeal Panel erred in law in declining to remit matter to Tribunal in circumstances where Tribunal had made an error of law – sufficiency of reasons of Administrative Decisions Tribunal and Appeal Panel - PROCEDURE – Supreme Court procedure – whether leave required to appeal from decision of Administrative Decisions Tribunal Appeal Panel – whether decision of Appeal Panel was an interlocutory or final decision – s 119(1A) Administrative Decisions Tribunal Act 1997 - STATUTES – Interpretation – whether legal professional privilege exemption in legislation should be construed narrowly – Sch 1, cl 10(1) Freedom of Information Act 1989 – meaning of "from production in legal proceedings" – whether exemption should be upheld only in circumstances where claim of privilege would be upheld by a court in legal proceedings – application of "general policy of disclosure" enshrined in Act to construction of exemptions contained in Act – distinction between procedural and evidentiary rules within which court determines whether matter has characteristics needed to make it privileged from production and the characteristics required of privileged documents - STATUTES – Interpretation – construction of Acts forming scheme of legislation – proper to have regard to each Act for the purpose of construing expressions used in any one of them – s 73 Administrative Decisions Tribunal Act 1997, Sch 1, cl 10(1) Freedom of Information Act 1989 - EVIDENCE – witnesses – whether effect of decision in Jones v Dunkel is to compel the drawing of inferences when a witness is not called