McGUIRK v UNIVERSITY OF NEW SOUTH WALES; UNIVERSITY OF NEW SOUTH WALES v McGUIRK [2009] NSWCA 321

Reported Decision: 75 NSWLR 224[2010] ALMD 6148[2010] ALMD 6150

New South Wales Court of Appeal

CITATION: McGUIRK v UNIVERSITY OF NEW SOUTH WALES; UNIVERSITY OF NEW SOUTH WALES v McGUIRK [2009] NSWCA 321 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 13 August 2009

JUDGMENT DATE: 7 October 2009

JUDGMENT OF: Ipp JA at 1; Basten JA at 2; Macfarlan JA at 93

(1) In the University's appeal, being matter no 40127 of 2008:

(a) allow the appeal and set aside the orders of the Appeal Panel of the Administrative Decisions Tribunal in University of New South Wales v McGuirk (No 2) [2008] NSWADTAP 8; (b) declare that the Administrative Decisions Tribunal has no power under s 63(2) of the Administrative Decisions Tribunal Act 1987 to grant access to a person to a document which is an exempt document of the University of New South Wales by virtue of Schedule 1, cl 10 of the Freedom of Information Act 1989 (NSW); (c) no order as to the costs of the appeal.

DECISION: (2) In relation to the appeal of Gerard Michael McGuirk (matter no 40652 of 2007):

(a) grant leave to appeal; (b) deem the notice of appeal in the matter bearing the same number, filed on 21 December 2007, to have been properly filed pursuant to this grant of leave; (c) otherwise waive the requirements of the rules with respect to the steps to be taken in relation to the appeal; (d) allow the appeal and set aside orders 5 and 6 made by Harrison AsJ and entered on 4 September 2007; (e) in lieu of the 2006 decision of the Appeal Panel, dismiss the University's appeal from the decision of the Tribunal in McGuirk v University of New South Wales [2005] NSWADT 289; (f) order the University to pay Mr McGuirk's costs of the proceedings in this Court and in the Common Law Division, such costs to be limited to those payable to a litigant in person from the date on which Mr McGuirk ceased to have legal representation.