Hargreaves v University of New England [2013] NSWADT 233

Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Hargreaves v University of New England [2013] NSWADT 233 Hearing dates: On the papers Decision date: 23 October 2013 Jurisdiction: General Division Before: S Montgomery, Judicial Member Decision: The decision under review is affirmed. Catchwords: access to government information - conclusive presumption - overriding public interest against disclosure - legal professional privilege Legislation Cited: Administrative Decisions Tribunal Act 1997 Government Information (Public Access) Act 2009 Cases Cited: AWB v Cole [2006] FCA 1234 Battin v University of New England [2013] NSWADT 73 Chamley v Sydney Children's Hospital Network [2013] NSWADT 198 Colefax v Department of Education and Communities [2013] NSWADT 75 Commissioner of Taxation of the Commonwealth of Australia v Pratt Holdings Pty Ltd [2005] FCA 1247 Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409 Fitzpatrick v NSW Office of Liquor and Gaming [2010] NSWADT 72 Pratt Holdings Pty Ltd v Commissioner of Taxation (2004) 136 FCR 357 Category: Principal judgment Parties: Colin Hargreaves (Applicant) University of New England (Respondent) Representation: C Hargreaves (Applicant in person) A McAlary (Legal Officer of Respondent) File Number(s): 133068

reasons for decision 1GENERAL DIVISION (S MONTGOMERY, (JUDICIAL MEMBER)): This is an application for review of a determination by the Respondent, the University of New England ("UNE"), in regard to an access application under the Government Information (Public Access) Act 2009 ("the GIPA Act") by the Applicant, Mr Hargreaves. In his access application the Applicant sought access to information held by the Respondent relating to the 2012 Elections of the Executive Committee of Postgrads@UNE Inc and the UNE Council. He requested: 1. Regarding the 2012 elections for the Executive Committees of Postgrads@UNE Inc, correspondence between 1 February 2012 and 5 November 2012 from any member of the legal office or the Chief Governance office, especially the Returning Officers, Rhonda Leece, David Ayres and Brendan Peet, to nominees and others that make reference to: (a) calling the elections (b) rejection/acceptance of nomination of candidates (c) the election code of ethics (d) rejection/acceptance of scrutineers (e) cancellation and re-running of elections 2. Regarding the 2012 elections for the postgraduate representative on the UNE Council, correspondence between 1 May 2012 and 5 November 2012 from any member of the legal office or the Chief Governance office, especially the Returning Officers, Rhonda Leece, David Ayres and Brendan Peet, to nominees and others that make reference to: (a) calling the elections (b) rejection/acceptance of nomination of candidates (c) the election code of ethics (d) rejection/acceptance of scrutineers (e) cancellation and re-running of elections 3. Regarding the 2012 elections for an academic staff member of UNE Council, correspondence between 1 May 2012 and 5 November 2012 from any member of the legal office or the Chief Governance office, especially the Returning Officers, Rhonda Leece, David Ayres and Brendan Peet, to nominees and others that make reference to: (a) calling the elections (b) rejection/acceptance of nomination of candidates (c) the election code of ethics (d) rejection/acceptance of scrutineers (e) cancellation and re-running of elections 4. any records (including any correspondence from the Public Officer of Postgrads@UNE, Simon Paul, and from any member of the Legal Office or the Chief Governance Office, especially the Returning Officers, Rhonda Leece, David Ayres and Brendan Peet) that relate to the calling of an AGM by 60 signatories (members of the Postgrads@UNE Inc) and the University bringing pressure to bear on the association's Public Officer not to call the AGM, between I May and 30 June 2012. 2The Respondent's Right to Information Officer, Dr Carmel O'Brien, determined the access application and identified a number of documents as falling within the scope of the request. Dr O'Brien initially identified 409 records as falling within the scope however her determination dealt with only a small proportion of those documents. She agreed to grant full access to the majority of the information with some material withheld on the basis that it was personal information about a third party and legal professional privilege was claimed in relation to some other material. 3The Applicant was not satisfied with Dr O'Brien's determination. He raised a number of issues with her and efforts were made between the parties to resolve those issues between themselves. The Applicant applied to the Tribunal for external review of the determination. The matter was listed for planning meetings and the parties took the opportunity to continue their negotiations. 4In his application to the Tribunal the Applicant provided the following background information in relation to his request: In July 2012, an extraordinary series of events lead up to the cancellation of an election for the postgraduate representative on the University Council, two hours from the end of the voting period and just after I had requested the university ombudsman act as a scrutineer; this is briefly documented in an Appendix to this. In trying to sort out what happened and why, the university's internal solicitor and chief governance officer, Brendan Peet, wrote to me demanding that I provide proof of my claims. As Mr Peet refused to provide any documents to me, it became necessary to make a GIPA Application to the University of New England. The application requested copies of all documents and emails related to this election and also the elections of the undergraduate and staff representatives on Council which happened at the same time. ... The original reason for this GIPA application was essentially about the actions of the Brendan Peet, who is the University Solicitor and Chief Governance Officer. As such he is also the Returning Officer for the elections of staff and student representatives to Council. I argue that as a staff member of the university, it is not appropriate for him to claim legal privilege as this means than in his general duties he cannot be investigated. Brendan Peet, at an ensuing Council meeting, stated that he had received outside legal advice on the cancelling of the election but I understand he has not provided a copy of this to Council and he has refused to provide a copy to me. It also seems curious that at first I was told that there were far too many documents to provide. Then on the 10th January, I was told there were only 22. When I pointed out the errors in not including documents in addition to emails and that there were a number of emails that had been provided to me by other candidates in the election, the RIO found a further 312 documents and claimed lack of time to process. After the election was cancelled, another election was called and a candidate ... nominated for this. She asked whether her nomination was OK as she had to go abroad for a wedding and was told by mail that it was fine. However, after nominations closed, Brendan Peet wrote to her stating that her nomination was unacceptable and he did not give her the chance to resubmit. It is believed by many that she was probably the winner of the first election but that was cancelled. All the emails documenting this have been omitted though I have copies from [the candidate] herself. 5Mr McAlary appeared at planning meetings on behalf of the Respondent. As a result of the negotiations between the Applicant, Mr McAlary and Dr O'Brien almost all the issues in the matter have been resolved. The single outstanding issue relates to the Respondent's claim for legal professional privilege in relation to an opinion ("the advice") held by the Respondent. 6The Respondent asserts that the advice contains legal advice from a practising legal practitioner retained by the Respondent. The Applicant contends that legal privilege does not attach to the advice because of alleged breaches of law by the Respondent. Alternatively, he asserts that legal privilege has been lost because the University Solicitor revealed its contents. 7With the parties' agreement I determined that this was a matter that could be determined on the papers, without a hearing.