Howell v Macquarie University [2008] NSWCA 26 (12 March 2008)

Last Updated: 4 April 2008

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.

FILE NUMBER(S):
40158/07
40731/07

HEARING DATE(S):
30 January 2008

JUDGMENT DATE:
12 March 2008

PARTIES:
Sally Clare Howell - Appellant
Macquarie University - Respondent

JUDGMENT OF:
Spigelman CJ Campbell JA Bell JA

LOWER COURT JURISDICTION:
Administrative Decisions Tribunal Appeal Panel

LOWER COURT FILE NUMBER(S):
069043; 069044

LOWER COURT JUDICIAL OFFICER:
O'Connor DCJ; Higgins JM; Bolt N-JM

LOWER COURT DATE OF DECISION:
1/3/07; 27/9/07

LOWER COURT MEDIUM NEUTRAL CITATION:
Howell v Macquarie University (GD) [2007] NSWADTAP 10;
Howell v Macquarie University (No 2) (GD) [2007] NSWADTAP 51

COUNSEL:
P Howell, solicitor - Appellant
M Allars - Respondent


SOLICITORS:
Philip Howell - Appellant
Foulsham & Geddes - Respondent

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

LEGISLATION CITED:
Administrative Decisions Tribunal Act 1997
Australian Securities and Investments Commission Act 2001 (Cth)
Criminal Assets Recovery Act 1990
Evidence Act 1995
Freedom of Information Act 1982 (Cth)
Freedom of Information Act 1989 (NSW)
Supreme Court Act 1970

CATEGORY:
Principal judgment

CASES CITED:
AWB Ltd v Cole (No 5) [2006] FCA 1234; (2006) 155 FCR 30
Carr v Finance Corporation of Australia Limited (No 1) [1981] HCA 20; (1981) 147 CLR 246
Commissioner of Stamp Duties v Permanent Trustee Co Ltd (1987) 9 NSWLR 719
Corporations and Securities Panel v Bristile Investments Pty Ltd [1999] WASC 183; (1999) 152 FLR 469
Daykin v SAS Trustee Corporation [2001] NSWSC 58; (2001) 51 NSWLR 328
Esso Australia Resources Ltd v Federal Commissioner of Taxation [1999] HCA 67; (1999) 201 CLR 49
General Manager, WorkCover Authority of NSW v Law Society of New South Wales [2006] NSWCA 84; (2006) 65 NSWLR 502
Grant v Downs [1976] HCA 63; (1976) 135 CLR 674
Hall v Nominal Defendant [1966] HCA 36; (1966) 117 CLR 423
Howell v Macquarie University (GD) [2007] NSWADTAP 10
Howell v Macquarie University (No 2) (GD) [2007] NSWADTAP 51
Howell v Macquarie University [2006] NSWADT 207
Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298
Licul v Corney [1976] HCA 6; (1976) 180 CLR 213
Manly Council v Byrne [2004] NSWCA 123
News Corporation Ltd v National Companies and Securities Commission [1984] FCA 36; (1984) 1 FCR 64
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
Puglisi v Administrative Decisions Tribunal of New South Wales Appeal Panel [2001] NSWCA 298; (2001) 52 NSWLR 350
R v Mailes [2001] NSWCCA 155; (2001) 53 NSWLR 251
Sanofi v Parke Davis Pty Ltd (No 1) [1982] HCA 9; (1982) 149 CLR 147
Sweeney v Fitzhardinge [1906] HCA 73; (1906) 4 CLR 716
The Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49; (2002) 213 CLR 543
University of New South Wales v McGuirk [2006] NSWSC 1362
Waterford v The Commonwealth [1987] HCA 25; (1987) 163 CLR 54

TEXTS CITED:


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.



JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA40158/07

CA40731/07

ADT 069043

ADT 069044

SPIGELMAN CJ

CAMPBELL JA

BELL JA

12 MARCH 2008

SALLY CLARE HOWELL v MACQUARIE UNIVERSITY

Judgment

1 SPIGELMAN CJ: I agree with Campbell JA.

2 CAMPBELL JA:

Nature of the Appeal

3 The Appellant in matter 40158 of 2007, Mrs Howell, asked Macquarie University (“the University”) to produce some documents pursuant to the Freedom of Information Act 1989 (“FOI Act”). In seeking those documents, and in the events that led up to the documents being sought, she has been assisted by her husband, who is a solicitor. The University did not produce certain of the documents requested, claiming that they were exempt from production by reason of legal professional privilege, and because other bases for exemption (that do not arise for our decision in this appeal) applied.

4 Mrs Howell applied to the Administrative Decisions Tribunal (“the Tribunal”) for review of the University’s determination. The Tribunal affirmed the determination of the University, save with respect to one document: Howell v Macquarie University [2006] NSWADT 207. Mrs Howell then appealed from the decision of the Tribunal to the Appeal Panel of the Administrative Decisions Tribunal (“the Appeal Panel”).

5 Before the Appeal Panel proceedings had run their course, Mrs Howell obtained some of the documents she sought, partly as a result of findings in the Tribunal and the Appeal Panel, and partly as a result of the University reconsidering its stance. The Appeal Panel dismissed the appeal insofar as it related to the documents now in question, and also declined to release any of them in the exercise of its residual discretion. Mrs Howell now appeals to this Court against the rejection by the Appeal Panel of her appeal against the finding of the Tribunal upholding the University’s claim to legal professional privilege.

Mrs Howell’s Application for Extension of Time and Leave to Appeal

6 As mentioned, the order of the Tribunal affirmed the determination of the University with respect to all the documents then in dispute, save one. That document the Tribunal remitted to the University for further consideration: Howell v Macquarie University [2006] NSWADT 207 at [28].

7 The decision of the Appeal Panel was given in two stages. The first stage was a decision the Appeal Panel gave on 1 March 2007: Howell v Macquarie University (GD) [2007] NSWADTAP 10.

8 In the Tribunal, the individual documents were each identified by a number. The documents in dispute were the ones numbered 1-6 inclusive, and 8-15 inclusive. The University had originally claimed exemption for document 1 on a ground other than legal professional privilege. The Tribunal held that that ground was not made out, but remitted document 1 to the University so that it could consider whether another ground of exemption applied to it.

9 In the judgment following its first-stage hearing, the Appeal Panel set aside the order the Tribunal had made remitting document 1 to the University, and replaced it with an order reading:

“Leave to extend to merits granted, in accordance with the following directions. The application is remitted to the respondent agency pursuant to s 65 of the ADT Act for reconsideration, such reconsideration to be undertaken within 21 days. The whole of the document known as document 1 is to be the subject of reconsideration. The result of that reconsideration is to be reported to the Appeal Panel. If the University decides that document 1 is exempt in whole or in part, the Appeal Panel will give directions for the further conduct of the matter.”

The Appeal Panel varied the order that had affirmed the University’s decision concerning the exemption of documents 2-6 and 8-15, by making the following order:

“The Tribunal’s decision that the documents are exempt documents is affirmed in respect of documents 2-6 and 8-14.

Leave to extend to merits granted, in accordance with the following directions. Document 15 is remitted to the respondent agency for reconsideration, such reconsideration to be undertaken within 21 days. The result of that reconsideration is to be reported to the Appeal Panel. The Appeal Panel will then give directions for the further conduct of the matter.”

10 The Appeal Panel’s reasons show that it had a specific matter in mind in stating that it would “give directions for the further conduct of the matter.” Section 25(1) FOI Act provides (emphasis added):

“(1) An agency may refuse access to a document:

(a) if it is an exempt document.”

Thus, even if a document is an exempt document, an agency still has a residual discretion to release it.

11 The appeal to the Tribunal was conducted in accordance with section 63 Administrative Decisions Tribunal Act 1997 (“ADT Act”):

“(1) In determining an application for a review of a reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:

(a) any relevant factual material,

(b) any applicable written or unwritten law.

(2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant enactment on the administrator who made the decision.”

12 At the time of the Tribunal’s decision, the prevailing view in the Tribunal was that the Tribunal did not have power to release an exempt document in the exercise of its discretion. The Tribunal’s decision in the present case made express reference to the Tribunal’s lack of power to exercise any such residual discretion.

13 After the decision of the Tribunal had been given, and while the Appeal Panel had its decision reserved, Nicholas J held in University of New South Wales v McGuirk [2006] NSWSC 1362 that the Tribunal had power to exercise the residual discretion. In its first-stage reasons for judgment the Appeal Panel referred to these matters, and continued:

“In these circumstances, as a matter of fairness to the applicant, we should make an order which allows the issue of the residual discretion to be agitated by Mrs Howell in relation to the documents exempt by virtue of legal professional privilege. We would encourage the agency to consider whether it is prepared to release any of the exempt documents (ie documents 2-6 and 8-14) in the exercise of the residual discretion during the 21 day period allowed for in the following orders.”

14 In other words, the further directions that the Appeal Panel contemplated included the possibility that it might itself exercise the residual discretion.

15 The University notified Mr Howell of the results of its reconsideration by letter dated 21 March 2007. It decided to release document 1 in a version from which some words claimed to be confidential had been deleted. It also decided to release documents 13 and 15. However it maintained its claim that documents 2-6 inclusive, 8-12 inclusive and 14 were exempt from disclosure on the ground of legal professional privilege, and declined to release any of those documents in the exercise of its discretion.

16 The second stage of the Appeal Panel’s decision was given on 27 September 2007: Howell v Macquarie University (No 2) (GD) [2007] NSWADTAP 51. That decision dealt with two matters only – the correctness of the University’s deletion of allegedly confidential material from document 1, and the correctness of the University’s decision to decline to release documents 2-6, 8-12, and 14 in the exercise of its discretion. The Appeal Panel was not persuaded that the claim for confidentiality was made out. Thus document 1 has been released in its entirety. The Appeal Panel was not persuaded that it should alter the University’s decision concerning the exercise of the overriding discretion in relation to documents 2-6, 8-12 and 14.

17 On 25 June 2007 the Appellant commenced proceedings 40158 of 2007 in this Court by filing a Notice of Appeal from the decision of the Appeal Panel given on 1 March 2007. That Notice of Appeal proceeded as though the Appellant had an appeal as of right from that decision.

18 Section 119(1) ADT Act provides:

“A party to proceedings before an Appeal Panel of the Tribunal may appeal to the Supreme Court, on a question of law, against any decision of the Appeal Panel in those proceedings.”

Section 119(1A) creates an exception to that right of appeal, so that an appeal against, (inter alia) an interlocutory decision of the Appeal Panel does not lie to the Supreme Court except by leave of the Supreme Court.

19 In both of its decisions relevant to this appeal the Appeal Panel was presided over by O’Connor DCJ. Thus, any appeal to this Court is brought in the Court of Appeal: section 48(1)(a)(vii) and 48(2)(f) Supreme Court Act 1970; Daykin v SAS Trustee Corporation [2001] NSWSC 58; (2001) 51 NSWLR 328; Puglisi v Administrative Decisions Tribunal of New South Wales Appeal Panel [2001] NSWCA 298; (2001) 52 NSWLR 350 at [1], 352.

20 On 20 August 2007 the Registrar of the Court of Appeal struck out the Notice of Appeal in 40158 of 2007 on the ground that it was incompetent. The evident basis of his order was that the appeal from the decision of 1 March 2007 was out of time, and hence no appeal lay as of right from it.

21 The Appellant has now filed an Amended Notice of Motion dated 18 September 2007, seeking an extension of time in which to seek leave to appeal from the decision of the Appeal Panel dated 1 March 2007 and that leave to appeal be granted, or alternatively that the order of the Registrar striking out appeal 40158 of 2007 be discharged. In either of those eventualities, the Appellant also seeks to file an Amended Notice of Appeal in 40158 of 2007. A draft of that Notice is in evidence. The University does not oppose the extension of time, but does not consent to the granting of leave to appeal.

22 On 12 November 2007 the Appellant began proceedings 40731 of 2007 in this Court, by filing a Notice of Appeal. That Notice of Appeal, filed as though it is an appeal as of right, appeals from the decision of the Appeal Panel “decided on 1st March and 27th September 2007”. The grounds of appeal in that Notice of Appeal are identical with the grounds of appeal the Appellant seeks to file in 40158 of 2007.

23 Even if the extension of time is granted, leave to appeal in 40158 of 2007 would still be needed because the decision of 1 March was interlocutory. A final decision is one which finally determines and disposes of the rights of the parties: Hall v Nominal Defendant [1966] HCA 36; (1966) 117 CLR 423 at [2]- [3], 442-445 per Windeyer J; Licul v Corney [1976] HCA 6; (1976) 180 CLR 213 at [11], 225 per Gibbs CJ; Carr v Finance Corporation of Australia Limited (No 1) [1981] HCA 20; (1981) 147 CLR 246 at [2]- [4], 248 per Gibbs CJ, [11]-[17], 253-254 per Mason J; Sanofi v Parke Davis Pty Ltd (No 1) [1982] HCA 9; (1982) 149 CLR 147 at [5], 152.

24 The right that the Appellant was asserting, both before the Tribunal and in the Appeal Panel, was the right arising under section 16 FOI Act. Section 16 provides:

“A person has a legally enforceable right to be given access to an agency’s documents in accordance with this Act.”

25 The decision of the Appeal Panel of 1 March 2007 did not finally dispose of the rights of the parties. Concerning documents 1 and 15, that were ordered to be reconsidered, the rights of the Appellant to access were clearly not finally determined. However, even concerning documents 2-6 and 8-14 the evident intent of the Appeal Panel was to consider the application of the residual discretion for itself, in the event that the University did not, during the 21-day period allowed by the orders, itself decide to release the documents in exercise of the residual discretion. Thus, concerning all the documents in question, the decision of 1 March 2007 did not finally determine whether the Appellant would be given access to those documents.

26 The Appellant submits that the first orders “finally determined the rights the parties asserted before the Appeal Panel, and the second orders finally determined new controversies which were initiated by the Panel.” I do not accept that characterisation of the orders. The right that the Appellant was asserting was a right to have access given to the documents. The first orders gave the considered decision of the Appeal Panel concerning all the arguments that the parties had put to it up to that time, and the second-stage hearing of the Appeal Panel did not reconsider the correctness of the reasons for making the orders that followed the first-stage hearing. However, the giving of the decision in University of New South Wales v McGuirk showed that the parties had not advanced all the arguments which might possibly be relevant to whether the Appellant should be given access to the documents, and thus the Appeal Panel left the way open for those additional arguments that might possibly affect whether the Appellant was given access to the documents.

27 There is no occasion to discharge the order of the Registrar made on 20 August 2007. When the Appellant has, in appeal 40731 of 2007 an appeal on foot, that the University does not contend should be struck out as incompetent, and in which she raises all the contentions she would wish to raise if she were granted leave to appeal in 40158 of 2007, there is no utility in granting that leave to appeal. In my view, the Amended Notice of Motion dated 18 September 2007 should be dismissed.

Relevant Statutory Provisions

28 Section 6(1) FOI Act provides:

“exempt document means:

(a) a document referred to in one or more of the provisions of Schedule 1, or ...”

29 Section 25(1) FOI Act provides:

“An agency may refuse access to a document:

(a) if it is an exempt document ...”

30 Schedule 1 of the FOI Act includes provision in clause 10 that:

“A document is an exempt document if it contains matter that would be privileged from production in legal proceedings on the ground of legal professional privilege.”

31 Section 17 states requirements for an application for access to an agency’s document. Section 24(1) provides:

“(1) After considering an application for access to a document, an agency shall determine:

(a) whether access to the document is to be given (whether immediately or subject to deferral) or refused, and

(b) if access to the document is to be given—any charge payable in respect of the giving of access, and

(c) any charge payable for dealing with the application.”

32 The application to the Tribunal for review of the University’s decision was made pursuant to section 53(1) FOI Act, which provides:

“A person who is aggrieved by a determination made by an agency ... under section 24 ... may apply to the Tribunal for a review of the determination.”

33 Section 55 FOI Act provides:

“In determining a review application, the Tribunal:

(a) is to ensure that it does not, in the reasons for its decision or otherwise, disclose any exempt matter, and

(b) is to, where in the opinion of the Tribunal it is necessary to do so in order to prevent the disclosure of any exempt matter, receive evidence and hear argument in the absence of the public, the review applicant and the applicant’s representative.”

34 Section 73 ADT Act provides:

“(1) The Tribunal may, subject to this Act and the rules of the Tribunal, determine its own procedure.

(2) The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice.

(3) The Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.”

35 Section 8 ADT Act provides:

“A reviewable decision is a decision of an administrator that the Tribunal has jurisdiction under an enactment to review.”

Because section 53(1) FOI Act enabled the Tribunal to review the University’s determination concerning Mrs Howell’s application for access to documents, that determination of the University is a “reviewable decision” in the meaning of the ADT Act.

36 Section 112(1) ADT Act defines an appealable decision of the Tribunal as including a decision of the Tribunal made in proceedings for a review of a reviewable decision. The decision of the Tribunal concerning Mrs Howell’s application for access to documents was an “appealable decision” in this definition.

37 Section 113 ADT Act provides:

“(1) A party to proceedings in which an appealable decision of the Tribunal is made may appeal to the Tribunal constituted by an Appeal Panel.

(2) An appeal under this Part:

(a) may be made on any question of law, and

(b) with the leave of the Appeal Panel, may extend to a review of the merits of the appealable decision.”

38 Section 89(5) provides:

“If the Tribunal gives the reasons for its decision in writing under subsection (3), the written reasons are to set out the following:

(a) the findings on material questions of fact, referring to the evidence or other material on which those findings were based,

(b) the Tribunal’s understanding of the applicable law,

(c) the reasoning processes that lead the Tribunal to the conclusions it made.”

39 Section 117(1) and (3) have the effect of extending that obligation to the Appeal Panel, whether the Appeal Panel is hearing an appeal restricted to questions of law or an appeal that extends to a review of the merits.

The Factual Background to the Disputed Documents

40 The Appeal Panel set out the factual background to the submissions of the Appellant:

“8 As at November 2004 she was the deputy principal of the School for Children with Special Learning Needs in the Macquarie University Special Education Centre (MUSEC). On or about 24 November 2004 the mother of a nine-year old boy who attended the school complained of mistreatment by three staff members at MUSEC, one of them being Mrs Howell. Mrs Howell was notified of the complaint. After considering advice from the University Solicitor, Ms Jennifer O’Brien, the University appointed an external investigator (Mr Geoff Kelly of Lee Kelly & Associates) to undertake an investigation.

9 From the outset Mrs Howell indicated that she would make a written statement in relation to the complaint but would not submit to an oral interview. In that regard, she had taken advice from her husband, Mr Philip Howell, a solicitor.

10 On 24 December 2004, in accordance with s 25C(1)(a) of the Ombudsman Act 1974 the University reported the complaint to the Ombudsman. The Ombudsman decided on 3 February 2005, as permitted by s 25E, to monitor the investigation as it raised a ‘reportable allegation’ and it was ‘in the public interest’ to do so.

11 Mrs Howell continued to object to submitting to a face-to-face interview. She had conveyed her opinion to the other members of staff complained against. The opinion of the investigator and senior officers of the University, including Ms O‘Brien, was that staff should make themselves available for oral interview if requested by the investigator. Conflict over this issue, and other concerns that the staff members had about the investigation, gave rise to a meeting on 17 February 2005 attended by the Head of Department (Dr A Rice), the head of the School (Professor Weldhall), the Director of Human Resources (Mr Tim Sprague), the University Solicitor (Ms O’Brien), Mrs Howell and the other two staff members. The full minutes of the meeting were released to Mrs Howell and are in evidence.

12 Early in March 2005 Mrs Howell formally complained to the Ombudsman over the way the University was conducting the investigation; and requested the Ombudsman to take it over. The Ombudsman declined to take over the investigation, by letter received 16 March 2005.

13 On that day, the University Solicitor, Ms O’Brien briefed Professor Elizabeth More, Vice-Chancellor (Administration), over her concerns in relation to what she saw as Mrs Howell’s non-co-operation with the investigation. (This is the document that is described as ‘Document 1’ in the Tribunal’s reasons, though it is important to note that only paragraph 1 of this document was considered by the University to fall within the scope of the relevant request.)

14 Accepting advice received from Ms O’Brien, Prof More wrote to Dr Rice, asking him to issue a disciplinary direction to Mrs Howell, and providing a text. Dr Rice did so by letter dated 30 March 2005. We will not set out the whole of this letter. The FOI requests were triggered by the second and third paragraphs:

‘Information has been referred to me to the effect that you have communicated to a former MUSEC colleague your views about her duties in relation to the Ombudsman’s delegated investigation of the complaint by [the mother of the boy]. In particular, she has stated, in effect, that you advised her that she did not have to participate in a face to face interview with the University appointed investigator if she did not wish to do so and that she could proceed by way of written submissions.

If this is the case, it amounts to a breach of the previous request by the University through the University Solicitor and the Director of Human Resources that you not speak to others who may have information concerning the matters complained about.’

This text was followed by the giving of a ‘clear direction that you not speak to any other person who may have information relevant to the investigation of the complaint’. The direction continued:

‘For the avoidance of doubt, you are directed not to discuss the factual matters giving rise to the complaint or the manner in which the University has determined that the investigation should be undertaken with any such person except with the express consent of the University.’

The letter continued, advising that disregard of the direction would be treated as falling within the definition of employee misconduct found in the enterprise agreement between staff and the University and risk formal disciplinary action.

15 On 27 April 2005 Mrs Howell lodged a formal grievance under the enterprise agreement. The grievance referred to her concerns that this direction was unfair and improper, in particular, the absence of particulars as to her alleged breach of the previous requests, including the precise details of those previous requests. She objected to the suggestion, found in her view in the direction, and in subsequent material, that she may have engaged in action that might have, to use her word, ‘contaminated’ the evidence. Her position is that her view about what was appropriate was widely known and that, in any event, at the meeting of 17 February, Mrs O’Brien, in particular, had accepted that a staff member could not be compelled to attend a face-to-face interview. The grievance included a number of specific complaints relating to the role and conduct of Ms O’Brien.

16 In July 2005 the University received Mr Kelly’s report. The report found that the allegation was not established against any of the three staff members. The report was transmitted to the Ombudsman. By letter dated 18 August 2005, after considering the investigator’s report, the Ombudsman accepted the investigator’s conclusion that in the instance of one allegation relating to the appellant the event alleged did not occur, and in the instance of the other allegation the event alleged did occur but it was not ‘reportable conduct’ as the action was reasonable.

17 In all these matters, Mrs Howell has been assisted and advised by Mr Howell. He has acted on her behalf in dealing with the University, and in particular with Mrs O’Brien, on many of the matters that have arisen. He prepared the written submissions filed by Mrs Howell before both the Tribunal at first instance and before the Appeal Panel. In one of those submissions he describes an increasing level of tension and conflict from January 2005 onwards between Mrs Howell and the University.”

The Legal Professional Privilege Exemption

41 The Appeal Panel made its decision on the basis (that has not been questioned before us) that the relevant principles to apply for the existence of the Clause 10 exemption are those concerning the common law of legal professional privilege, not those concerning the availability of client legal privilege under the Evidence Act 1995. The Appeal Panel quoted, at [27] the statement of Gleeson CJ, Gaudron, Gummow and Hayne JJ in The Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49; (2002) 213 CLR 543 at [9], 522; [2002] HCA 49; (2002) 77 ALJR 40 at [9]:

“It is now settled that legal professional privilege is a rule of substantive law which may be availed of by a person to resist the giving of information or the production of documents which would reveal communications between a client and his or her lawyer made for the dominant purpose of giving or obtaining legal advice or the provision of legal services, including representation in legal proceedings.”

42 The Appeal Panel noted that the relevant test since 1999 had been whether the communication or document was made for the “dominant purpose” rather than the “sole purpose” of rendering legal advice or the provision of legal services: Esso Australia Resources Ltd v Federal Commissioner of Taxation [1999] HCA 67; (1999) 201 CLR 49 at [35]- [61], 64-73.

Procedure for the Tribunal Determining Clause 10 Exemption

The Appellant’s Argument

43 Mr Howell argued the appeal in this Court for his wife. He submits that the words “from production in legal proceedings” in Clause 10(1) of Schedule 1 to the FOI Act must be given some meaning: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at [71], 382. He submits that Clause 10(1) would have been effective without inclusion of the words “from production in legal proceedings”. The added meaning that he says emerges from the words “from production in legal proceedings” is that the exemption should be upheld only in circumstances where a claim of legal professional privilege would be upheld by a court in legal proceedings.

44 That brings with it, he submits, a requirement to have regard to (a) the standard of evidence required by courts; and (b) the procedures courts follow when claims for legal professional privilege are determined. He submits that allowing less than this degree of stringency would widen the scope within which the privilege could be claimed, which would be contrary to the object of, and “general policy of disclosure in” the FOI Act: section 5 FOI Act; General Manager, WorkCover Authority of NSW v Law Society of New South Wales [2006] NSWCA 84; (2006) 65 NSWLR 502 at [147], 533. He submits that the final relief that had been sought in the Tribunal was an order giving access to the documents, and thus a decision about whether they were exempt on the ground of legal professional privilege was a final decision, not an interlocutory decision, and a court would not receive hearsay evidence for the purpose of making a final decision. He submits that the procedures required by the Court for proof of the existence of legal professional privilege include an assertion of privilege on oath, cross-examination of the deponent, inspection of the documents, and the leading of other evidence by those who oppose the claim. He submits that when the Tribunal has evaluated the University’s claim of legal professional privilege without requiring the claim to have been established in the Tribunal in accordance with that standard of evidence and procedure, and the Appeal Panel has upheld the Tribunal’s decision, the Appeal Panel has misconstrued Clause 10, in a way that involves an error of law which this Court should correct.

45 I will not pause to examine any further than I have already done Mr Howell’s submission that the particular decision of the Tribunal involved in this case was a final decision, or his account of the standard of evidence and procedures a court would require if it was to uphold a claim of legal professional privilege. Rather, I shall deal directly with his submission that on the proper construction of Clause 10(1) the Tribunal must determine claims of legal professional privilege in accordance with the same standards of evidence and the same procedures that a court would use.

Construe the Exemption Narrowly?

46 Mr Howell correctly recognises that in General Manager, WorkCover Authority of NSW v Law Society of NSW (at [147], 533) McColl JA (with whom Handley JA and Hodgson JA agreed) referred to the FOI Act enshrining a "general policy of disclosure" of official information. However McColl JA went on, at [149]-[151], 533-534 to consider how that general policy was applied in the construction of the exemptions contained in the Act. She noted that in News Corporation Ltd v National Companies and Securities Commission [1984] FCA 36; (1984) 1 FCR 64 at 66 Bowen CJ and Fisher J said, concerning the rights of access pursuant to the Freedom of Information Act 1982 (Cth):

“... that they did not favour adopting the approach of leaning towards “... a wide interpretation of the provisions of the Act but when considering exemptions ... lean[ing] towards a narrow interpretation”, saying “[t]he rights of access and the exemptions are designed to give a correct balance of the competing public interests involved...[and] [e]ach is to be interpreted according to the words used, bearing in mind the stated object of the Act.” News Corporation Ltd was followed by the Full Federal Court in Searle Australia Pty Ltd v Public Interest Advocacy Centre and Anor [1992] FCA 240; (1992) 36 FCR 111 at 115.”

47 Her Honour went on at [150]-[151], 534 to hold that the principle should apply to the construction of the FOI Act, and that

“It accords with Mahoney JA’s observation in Commissioner of Police v District Court of New South Wales [(1993) 31 NSWLR 606] (at 639–640) that in s 16 (which provides that a person has a legally enforceable right to be given access to an agency’s documents in accordance with the Act) the legislature had “adopted the principle that a citizen should have access to documents held by Government agencies”, but added that “that principle must be subject to exceptions and qualifications” and that “[t]he precise terms of the [exception] clause should govern the extent of the remedy available.”

The Full Federal Court’s approach, in my view, accords with the s 5(3) obligation to interpret and apply the FOI Act so as to further its objects, bearing in mind that while the Act gives a legally enforceable right to be given access to documents held by the Government, that right is subject to such restrictions as are reasonably necessary for the proper administration of the Government: s 5(2)(a) and (b). Determining whether documents should be disclosed involves balancing those two matters.”

48 I respectfully agree with those remarks. They have the effect that I cannot accept Mr Howell’s submission that the “general policy of disclosure” would lead to the exemption in Clause 10 being narrowly construed. Rather, that exemption should be construed without any prior inclination to construe it narrowly, nor any prior inclination to construe it broadly.

Effect of “from production in legal proceedings”

49 While I accept that a court should strive to find work to do for each word, phrase and sentence in a statute, the purpose of inclusion of the words “from production in legal proceedings” is not, in my view, that submitted by the Appellant.

50 The phrase “that would be privileged from production in legal proceedings on the ground of legal professional privilege” describes an attribute of the “matter” by reason of which a document is an exempt document. There are various statutes that contain provisions that have been held by courts to abrogate legal professional privilege in certain circumstances: eg section 192 Australian Securities and Investments Commission Act 2001 (Cth); Corporations and Securities Panel v Bristile Investments Pty Ltd [1999] WASC 183; (1999) 152 FLR 469. There are statutes that abrogate legal professional privilege even in certain types of court proceedings, eg section 35(1)(c) Criminal Assets Recovery Act 1990. In my view, Clause 10(1) describes the “matter” by reference to being privileged from production on the ground of legal professional privilege in the general run of legal proceedings, not in situations where some specific statutory abrogation of the privilege applies.

51 “Matter” has the attribute that it “would be privileged from production in legal proceedings on the ground of legal professional privilege” if it has the characteristics identified in the passage quoted at para [41] above from The Daniels Corporation, and is not within one of the exceptions that the common law recognised to the privilege, such as concerning communications made to facilitate the perpetration of a crime or fraud.

52 In my view there is a distinction between the characteristics that matter contained in a document must have before it would be privileged from production in legal proceedings on the ground of legal professional privilege, and the means by which it is established that the matter has those characteristics. In my view, the procedural and evidentiary rules that set the frame within which a court determines whether matter has the characteristics needed to make it privileged from production in legal proceedings on the ground of legal professional privilege are not part of those characteristics.

53 When an application is made to an agency for access to a document under the FOI Act, the application is first dealt with, pursuant to section 41, by an officer of the agency. In all, or nearly all, cases that officer will have no ability to receive evidence given on oath, there will be no occasion for cross-examination of anyone, and the types of facilities that are present in court proceedings for inspection of documents and the leading of evidence by those who oppose the claim, are absent. It is highly unlikely that Parliament would have intended that Clause 10 should bear a meaning that would make it in practice unable to be applied by a significant class of people who the statute itself, in section 41, requires to undertake the task of applying it. Rather, the task of the officer of the agency is to make up his or her own mind, on the basis of such information as is available to him or her, about whether the matter contained in a document has characteristics that would make it privileged from production in legal proceedings on the ground of legal professional privilege.

54 Clause 10 does not change its meaning depending upon whether it is being applied by an officer of the agency, or by the Tribunal. The task of the Tribunal, in reviewing a claim of legal professional privilege made by an agency, is to make up its own mind, on the basis of such information as it has available to it, about whether the matter contained in a document has the characteristics that would make it privileged from production in legal proceedings on the ground of legal professional privilege.

55 Further support for this view is obtained from the ADT Act. Section 73 specifically frees the Tribunal from the confines of evidence and procedure within which a court makes decisions about whether a document is privileged from production on the ground of legal professional privilege. When a number of Acts form a scheme of legislation it is proper to have regard to each of them for the purpose of construing expressions used in any one of them: Sweeney v Fitzhardinge [1906] HCA 73; (1906) 4 CLR 716 at 726; R v Mailes [2001] NSWCCA 155; (2001) 53 NSWLR 251 at [108], 272; Commissioner of Stamp Duties v Permanent Trustee Co Ltd (1987) 9 NSWLR 719 at 723-4. When the ADT Act and the FOI Act are clearly intended to operate together, as part of the one legislative scheme for enforcement of rights, it is unlikely that Parliament intended that Clause 10 should be interpreted in a fashion that is expressly contradicted by section 73 ADT Act.

56 The decision of the Appeal Panel did not set aside the Tribunal’s decision on the ground that the Tribunal had determined whether the documents in question were subject to legal professional privilege by a procedure which was inconsistent with that adopted in legal proceedings. However, there is no error of law in the Appeal Panel’s failure to set aside the Tribunal’s decision on that ground.

Sufficiency of Proof of Prima Facie Privilege

57 Mr Howell submits that (quite apart from the way in which the Tribunal went about dealing with submissions that the documents were created for an improper purpose) the material before the Tribunal and the Appeal Panel did not suffice even to make out a prima facie case for the existence of the privilege. When he refers to a “prima facie case” he means evidence that would be sufficient to establish the privilege, if there were no improper purpose.

58 At both the hearing before the Tribunal, and before the Appeal Panel, unexpurgated versions of the documents in question were before the Tribunal and the Appeal Panel. They were received, pursuant to section 55(b) FOI Act, on the basis that they were not disclosed to Mr and Mrs Howell.

59 In dealing with legal professional privilege, the Tribunal said, at [21]:

“The relevant principles are quite clear and there is no issue that they are as set out in the Respondent’s submissions, the only issue being the application of these principles to the documents under review.”

60 The Respondent’s submissions included reference to the “dominant purpose” test, but made no reference to the improper purpose exception.

61 The Appeal Panel at [34] stated, concerning para [21] of the Tribunal’s reasons:

“In our view, at this point the Tribunal is simply referring to the ordinary test for the determination of whether documents or communications are privileged, as enunciated in Esso and subsequent authorities. There was no need for it to refer to the exceptions to the privilege at this point of its analysis. It is clear that it proceeded by applying the usual test to the documents.”

In other words, while the Tribunal did not expressly refer to the “dominant purpose” test, it referred to it indirectly, by its reference to the respondent’s submissions, and proceeded to apply it. I can see no error of law in the Appeal Panel adopting this reading of the reasons of the Tribunal.

62 The Appeal Panel said, at [30]-[31]:

“The documents fell into three types:

- communications to an officer of the agency from the University Solicitor, Ms O’Brien (documents 2, 3, 4, 5, 6, 10, 11, 13, 14)

- communication from an officer of the agency to the University Solicitor, Ms O’Brien (documents 8, 9, 12)

- communication to a person who is undertaking an investigation for the agency from the University Solicitor, Ms O’Brien (document 15).

The approach adopted by the Tribunal in dealing with each of the documents (or groupings of documents) was to give a broad outline of its contents, to assess whether it fell within cl 10, and to consider the possibility of whether it might be practicable to edit the document to protect the exempt matter and otherwise release it: see [22]-[26] of its reasons.”

63 Mr Howell raised a specific appeal ground before the Appeal Panel that:

“The Tribunal failed to consider that certain documents were prepared for the dominant purpose of the University discharging its statutory obligation to investigate.”

64 The Appeal Panel dealt with that ground of appeal by saying, at [34]:

“It was reasonably open to the Tribunal to find on the material before it that the dominant purpose (at least) for the making of the communications by the University Solicitor, Ms O’Brien, was to render ‘legal advice’. There is no doubt that some of that advice concerned the University’s responsibilities in respect of its statutory obligations so far as the investigation of child maltreatment complaints is concerned. There is nothing exceptional in an organisation seeking advice from a lawyer about implications of that kind.”

65 As well, the Appeal Panel noted, at [42]:

“In any event in our view, the question of whether the documents in-principle fell within the bounds of legal professional privilege was not an area of serious contest between the parties. Mrs Howell’s main point was that the ‘improper purpose’ exception applied to the documents that post-dated 28 February 2005 (ie documents 9-15) and therefore those documents lost their privilege status.”

66 The material before the Tribunal included not only the documents themselves, but also the practising certificate of Ms O’Brien (showing that she was entitled to practice as a solicitor throughout the relevant time), and her statement of duties. That statement of duties related only to tasks of a legal nature. She was not one of the in-house legal advisors one sometimes encounters, whose duties extend beyond the type of tasks that a legal practitioner engages in in the course of his or her practice.

67 Mrs Howell has made a series of requests under the FOI Act. It was the University’s determination concerning the first and third of those requests that the Tribunal reviewed. There was some overlap between the documents sought in the first request and in the third request, but it is unnecessary to state the precise overlap.

68 In the Tribunal there was both written and oral evidence from Professor Loxton, the Deputy Vice-Chancellor (Academic) of the University. He had conducted an internal review of a deemed refusal to give access concerning Mrs Howell’s first FOI request. Professor Loxton was cross-examined in the Tribunal, but not in a way that sought to elucidate the dominant purpose of the University in bringing into existence the documents that are now the subject of the claim for privilege.

69 Mr Brian Spencer, the Registrar and Vice-Principal of the University made a written statement that was received in evidence in the Tribunal hearing. Mr Spencer conducted an internal review relating to Mrs Howell’s third FOI request. The third FOI request covered all the documents that are now the subject of dispute. His statement said, concerning the University solicitor:

“8. ... Her advice is sought in relation to a wide range of legal issues, including in relation to investigations by external investigative agencies such as the New South Wales Ombudsman, and industrial matters concerning the legal rights and obligations of University employees. In some cases because of the nature of the matter the University instructs the University Solicitor to retain solicitors external to the University to give advice on specified issues, or where legal proceedings are initiated.

9. When the University seeks legal advice from the University Solicitor that advice is provided in confidence, and is available only to the relevant senior University officers who require the advice for the purpose of making the particular decision to which the advice relates.”

70 Mr Spencer’s statement identifies each of the documents in dispute by number, identifies the parties to each communication, and gives a brief description of the relevant contents. For example, concerning document 2 he said:

“The memorandum contains advice given by the University Solicitor in relation to possible breaches of the law, retention of solicitors, and compliance with regulatory requirements.”

71 Other documents are ones that he identified as ones where “the University Solicitor seeks instructions”, or that they are “records of instructions received by the University Solicitor”. Mr Spencer was not required for cross-examination in the Tribunal.

72 The purpose for which a document is brought into existence is a question of fact: Grant v Downs [1976] HCA 63; (1976) 135 CLR 674 at [5], 692 per Jacobs J; Waterford v The Commonwealth [1987] HCA 25; (1987) 163 CLR 54 at [10], 66 per Mason and Wilson JJ; [14], 78 per Brennan J. While sometimes direct testimonial evidence from the person who created a document concerning the purpose which it was brought into existence can be both relevant and important, there is no requirement, even in a court of law, for the purpose with which a document was brought into existence to be proved in this way. Sometimes, an examination of the document itself can be enough to establish the dominant purpose with which it came into existence. That is often the case with a brief to counsel to advise, or a memorandum of advice from counsel, that deals with no topic other than the giving of advice. Sometimes, examination of the circumstances in which a particular document has been produced might show that even though the document considered on its own looked like legal advice, or a request for legal advice, there were other extraneous circumstances that led to the conclusion that it was produced with a dominant purpose other than one which would make the document privileged. It is a question of fact, involving weighing such evidence as is available, whether in any particular case a document was produced with a dominant purpose of giving or obtaining legal advice or the provision of legal services.

73 Mr Howell submits that in the present case the nature of the submission that the Appellant made to the Tribunal concerning improper purpose obliged it not to accept as undisputed fact statements in the documents that were not verified by any other evidence. He submits that is a possibility in the present case that Ms O'Brien intentionally or recklessly misrepresented facts in the advice that she gave, for the purpose of inducing the University to act against the Appellant. He submits that a lawyer who had an improper purpose of seeking to induce his or her client to harm a particular person, and who misrepresented facts in advice so as to advance that improper purpose, could succeed only if the advice had the "look and feel" of legal advice. Thus, he submits, merely examining the documents cannot answer the question that is raised for determination. Further, he submits that evidence from the client as to the purpose with which the advice was sought cannot answer the question either, because achievement of the solicitor's purpose depends upon the client being duped into thinking it is receiving genuine and unbiased legal advice. He submits that when the thrust of the "improper purpose" submission was that Ms O'Brien had used her "advice" as a weapon to harm the Appellant, the Panel had to adopt the procedure which would allow it to test whether the submission was correct.

74 I do not accept that the mere making of a submission that a lawyer is motivated by an improper purpose in giving advice has that consequence. Rather, it is necessary for the submission that there is such an improper purpose to be backed up by evidence sufficient to raise a prima facie case that there really is such an improper purpose. The Appeal Panel considered the correct question, in asking itself whether such prima facie evidence existed.

75 Mr Howell’s submission went further: he alleged that when the Appeal Panel accepted the veracity of statements of alleged fact in the Documents when the maker of those statement was not called as a witness, there was a breach of the requirement for procedural fairness. He noted that the Appellant had not seen the disputed documents, yet the University relied almost wholly on the contents of the Documents. He submitted that the University

"invited the Tribunal to accept statements in the Documents as fact, and then deliberately deprived the appellant of the opportunity of testing that evidence. To avoid the denial of procedural fairness which resulted, the Panel should have declined to accept the veracity of the statements of alleged fact in the Documents, and their claimed significance, without corroborating evidence."

76 The requirement in section 55 FOI Act for the Tribunal to ensure that it does not disclose any exempt matter sets the frame within which proceedings in the Tribunal must occur. When Parliament has required that exempt matter not be disclosed, the consequences of not disclosing it could not, in themselves, be a breach of a legal requirement of procedural fairness. The Appellant had the opportunity to call such evidence as she wished, and make such submissions as she wished, including a submission that the Tribunal ought be satisfied, taking into account that the University had failed to call Ms O'Brien, that a prima facie case of improper purpose was made out. I do not accept that in deciding whether a prima facie case of improper purpose had been made out there was any obligation of law on either the Tribunal, or the Appeal Panel, not to accept as fact statements in the documents that were not verified by any other evidence.

77 In deciding what was the dominant purpose of creation of the various documents in dispute in the present case, both the Tribunal and the Appeal Panel had an advantage not available to this Court, of seeing unexpurgated versions of the documents themselves. The appeal to the Appeal Panel was, so far as the existence of legal professional privilege was concerned, an appeal only on a question of law. In my view the Appeal Panel made no error of law in failing to detect an error of law in the way the Tribunal had dealt with the “dominant purpose” element of the claims for privilege.

78 The Appellant submits that both the Tribunal and the Appeal Panel "assumed that proof of a solicitor-client relationship and the creation of documents apparently resembling legal advice established the principle, unless the appellant established a prima facie case of improper purpose". I am not persuaded that the Appeal Panel made the error of which the Appellant accuses it. The passage from its judgment at [34], quoted at para [64] above shows that the process the Appeal Panel was engaging in what is the correct one, namely determining what was reasonably open to the Tribunal to find on the material before it.

79 The Appellant submits that the Tribunal and the Appeal Panel both "failed to have regard to the circumstances surrounding the creation of the documents, as established by the uncontradicted evidence in Exhibit B9". Exhibit B9 was the Appellant's statement of evidence. It had numerous annexures, that were the documents that set out the whole course of events through which the disputes between the Appellant and the University had come about, and what was done in the course of those disputes. It occupied some 280 pages in the appeal book, and was by far the largest exhibit, so there is considerable inherent improbability in the Appeal Panel having ignored it. It was through Exhibit B9 that large parts of the factual background to the dispute, that I have quoted at para [40] above, were established. As well, the passage from the judgment of the Appeal Panel at para [34] shows that the Appeal Panel understood that some of the documents came into existence in the course of the University performing a statutory obligation to investigate child maltreatment complaints, and considered whether the circumstances in which the documents came into existence meant that the conclusion about dominant purpose that the Tribunal had come to was one that the Tribunal could not properly reach.

80 Alternatively, the Appellant submits that the reasons given by the Tribunal concerning dominant purpose were inadequate, and that the Appeal Panel should have so found. While it is fair to say that the reasons of the Tribunal and the Appeal Panel concerning dominant purpose were brief, the type of reasons that can be given is constrained by the obligation under section 55 FOI Act not to disclose any exempt matter. The conclusion that it was reasonably open to the Tribunal to find that purpose is also one that needs to be seen in the context of the fairly full account of the factual background that the Appeal Panel gave. I am not persuaded that the Appeal Panel failed to have regard to the circumstances surrounding the creation of the documents, nor that either its reasons or those of the Tribunal are inadequate, so far as the “dominant purpose” element of the claim for privilege is concerned.

Improper Purpose

81 One of the submissions that Mr Howell made in the Tribunal was that, even if there were circumstances that gave rise to a prima facie case of privilege, that privilege was removed as a matter of public policy because the documents in question had been produced for an improper purpose. The improper purpose that he alleged existed related only to documents that were dated after 28 February 2005. 28 February 2005 was the date of the first of the disputed documents that came into existence after Ms O'Brien wrote a letter to Mr Howell dated 16 February 2005, in which she said "... your 2 emails of yesterday constitute personal criticism of my competence, diligence and professionalism" and went on to give her response to those criticisms. 28 February 2005 was also the date of the first of the disputed documents that came into existence after the meeting of 17 February 2005. Mr Howell also draws attention to the terms of the letter he wrote on 1 March 2005 to the Ombudsman, requesting the Ombudsman to take over conduct of the investigation, on grounds that included alleged inadequacy in the way in which Ms O'Brien had acted in connection with the investigation of the allegations of misconduct. From the description of parties to the disputed documents that the University has given, and the dates of those documents, it might also be the case that 28 February 2005 is the start of a course of documentation that resulted in the issuing of the directive to the Appellant, but without seeing the documents it is not possible for me to draw a positive inference that that is so.

82 The specific improper purposes that were alleged were:

(a) to harass and penalise the Appellant;

(b) to prevent the Appellant from informing staff of what the University knew to be their legal rights, the exercise of which was perceived by the University not to be in its interests; and

(c) to silence any criticism of the University.

83 In the Appeal Panel, the Appellant made two different types of submissions concerning the "improper purpose" allegation. One was that the Tribunal had failed to consider the allegation that the documents were created for an improper purpose. The other was that the Tribunal failed to give reasons why it did not uphold the "improper purpose" submission. The Appellant made detailed submissions, in writing, concerning why it was that, particularly when one bore in mind the dates of the documents and the sequence of events leading up to their creation, the conclusion should be drawn that the documents were tainted by an improper purpose.

84 In the Appeal Panel the University accepted that otherwise privileged communications can lose that privilege if brought into existence for an improper purpose. It submitted that there was an evidentiary onus lying on the party raising such a case.

85 The Appeal Panel relied on the judgment of Young J in the Federal Court of Australia in AWB Ltd v Cole (No 5) [2006] FCA 1234; (2006) 155 FCR 30 for its statement of the "improper purpose" exception to legal professional privilege. The Appeal Panel said, at [46]-[49] of its first-stage reasons:

“Young J in the Explanatory Statement in the AWB case gave the following explanation of the exception to legal professional privilege which these submissions seek to invoke:

‘Communications between a lawyer and client which facilitate a crime or fraud are not protected by legal professional privilege. This principle is often referred to as the ‘fraud exception’ to legal professional privilege, but this does not capture its full reach. The principle encompasses a wide species of fraud, criminal activity or actions taken for illegal or improper purposes and extends to ‘trickery’ and ‘shams’. As the fraud exception is based on public policy grounds, it is sufficiently flexible to capture a range of situations where the protection of confidential communications between lawyer and client would be contrary to the public interest.’

As his Honour noted at para [215] of his reasons:

‘It is important to bear in mind that the fraud exception is based on public policy grounds. The principle is sufficiently flexible to capture a range of situations where the protection of confidential communications between lawyer and client would be contrary to the public interest ... This aspect of the principle is reflected in the statement that ‘[t]he privilege takes flight if the relationship between lawyer and client is abused’: Clark v United States [1933] USSC 52; (1933) 289 US 1 at 15 ....’

In the AWB case Young J dealt at paras [217] and ff with the question of what is required by way of evidence and the evidentiary standard when an allegation of the present kind is made. The Court derived the following principles from the leading authorities.

- There must be more than a mere assertion or allegation of fraud

- There must be reasonable grounds for believing that the relevant communication was for an improper purpose

- There must be some prima facie evidence that the allegation of improper purpose has some foundation in fact

- It is not necessary to prove an improper purpose on the balance of probabilities

- It must also be established that the communication which is the subject of the claim for privilege was made in furtherance of, or as a step preparatory to, the commission of the fraud or wrongdoing.

These principles are, in our view, equally applicable [to] FOI proceedings. The review applicant must make out a case, at least to a point where the Tribunal is satisfied that there is a prima facie case. The agency should be called upon to respond to that point.”

86 No party in this court criticised these statements of principle that the Appeal Panel drew from the AWB Case. However I should state that in my view, the statements of principle are correct.

87 Mr Howell correctly pointed out that section 61 FOI Act provides:

“In any proceedings concerning a determination made under this Act by an agency ... the burden of establishing that the determination is justified lies on the agency ..."

88 In the particular context of this case, section 61 imposes on the University the burden of establishing that the documents in question were the subject of legal professional privilege. If the University provides prima facie proof that the documents were brought into existence for the dominant purpose of seeking or providing legal advice, and there is no other evidence, that can suffice to discharge the burden. If someone opposing the claim of privilege presents some prima facie evidence that the allegation of improper purpose has a foundation in fact, the burden of establishing that there is no improper purpose then falls on the University. However, there needs to be the prima facie evidence that the allegation of improper purpose has a foundation in fact before the overall burden of proof that the University bears requires it to rebut the allegation of improper purpose.

89 Immediately after the passage I have quoted at [85] above the Appeal Panel went on to say, at para [50]:

“In this case Mrs Howell did not put on any evidence, though there had been extensive reference to ‘improper purpose’ in the submissions prepared and filed by Mr Howell before the hearing (see submissions filed 24 October 2005) and again in the submissions filed after the hearing (on 10 March 2006).”

90 Mr Howell submitted that this statement involves clear error on the part of the Appeal Panel, as Mrs Howell had put on extensive evidence, contained in exhibit B9. It seems to me that that submission involves an over-literal reading of the reasons of the Appeal Panel. In its context, it seems to me that what the Appeal Panel means is that the Appellant did not put on any direct evidence of improper purpose (such as there would be if Ms O'Brien had said to be Appellant, "I'll get back at you for refusing to have a face-to-face interview"), and the indirect or circumstantial evidence was not sufficient to raise a prima facie case.

91 That the Appeal Panel had in mind whether there was sufficient evidence to raise a prima facie case is shown by the way it expressly mentioned, in para [54], that in the AWB Case the "evidence contained material which credibly raised the possibility of the fraud/improper purpose exception applying", and the way the Appeal Panel dealt with the argument that there were insufficient reasons given by the Tribunal for rejecting the submission that the documents lost privilege by reason of improper purpose. In substance, the Appeal Panel found that the reasons of the Tribunal were inadequate on that topic, but after considering the evidence for itself the Appeal Panel declined to remit the matter to the Tribunal. The Appeal Panel said, at [58]-[59]:

“This was a case where there were ‘mere assertions’, to use words found in the leading authorities. The Tribunal should however, we think, have provided some response to the ‘improper purpose’ case put by Mrs Howell, explaining that it was unsustainable in the absence of evidence raising a prima facie case.

The Tribunal, had it given reasons, would, inevitably we consider, have dismissed the case. There was nothing, in our view, on the face of the documents that could lead one to think that the University or Ms O’Brien were engaged in some form of misconduct. Therefore there was no circumstance which might, had the Tribunal addressed the issue, have possibly produced a different result (see Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141 at [9]- [11], 145-6 and Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at [7], 633).”

92 I see no error of law in the Appeal Panel taking that view of the evidence. Nor is there any error of law in the Appeal Panel declining to remit the matter to the Tribunal in circumstances where the Tribunal had made an error of law by failing to give reasons for rejecting the "improper purpose" case, but where the Appeal Panel was of the view that, had the Tribunal given reasons, the outcome would inevitably be the same as that which the Tribunal actually reached.

Jones v Dunkel

93 Another deficiency that the Amended Notice of Appeal alleges exists in the decision of the Appeal Panel is that it "[f]ailed to have regard to the [University's] unexplained failure to call evidence from the author of the documents." It is manifestly obvious that Ms O'Brien (the author of the documents, who Mr Howell was particularly anxious to cross-examine) did not give evidence.

94 It is simply incorrect to say that the Appeal Panel did not have regard to the fact that Ms O'Brien did not give evidence. It dealt specifically with the consequences of her failure to give evidence, at para [40]-[41] of its first-stage reasons:

“The next set of criticisms, found principally in Ground 4, relates to the process of assessment followed by the Tribunal. As Mr Howell has emphasised in his submissions, it is usual in discovery proceedings in the ordinary courts for the affidavit as to discovery to be provided by a solicitor and for the solicitor to make any claims for legal professional privilege. It does not follow that it is an error for the Tribunal not to receive evidence from the agency’s solicitor when assessing a claim to legal professional privilege in FOI proceedings.

What is sufficient evidence for the purpose of assessing whether documents fall within the sphere of legal professional privilege will vary from case to case. While it is not uncommon in FOI cases in the Tribunal for a solicitor to provide evidence in respect of documents said to be privileged, it is not essential. In this instance the Tribunal had evidence from the client, as distinct from the lawyer, as to the privileged nature of the documents. The Tribunal also undertook its own inspection of the documents. It had evidence of the lawyer’s admission to practice and of her role as in-house solicitor. These were, we think, sufficient steps to determine whether the documents were privileged.”

95 The Appeal Panel returned to that topic briefly at para [104] of its first-stage reasons:

"Mr Howell is firmly of the view that Ms O'Brien should have been presented to give evidence. The University was not bound to produce Ms O'Brien."

96 Part of the submission of Mr Howell seems to be that the Appeal Panel ought to have found that the Tribunal made an error of law in finding that the privilege existed, when Ms O'Brien was not called. He submits that the Appeal Panel should have applied “the rule in Jones v Dunkel [1959] HCA 8; (1958-59) 101 CLR 298, per Kitto J at 308, Menzies J at 312 and Windeyer J at 319 and 320-321, and inferred that Ms O'Brien's evidence would not have assisted the [University]".

97 The only sense in which Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 establishes a "rule" concerns the inferences of fact that are open to be drawn when a relevant witness is not called. Jones v Dunkel concerned the trial by jury of a negligence action arising from a motor vehicle collision, at which the defendant, who was also the driver of the motor vehicle with which the plaintiff’s vehicle had collided, did not give evidence. The decision related to the adequacy of the trial judge's directions to the jury. I venture to repeat what I said (with the agreement of Beazley JA and Pearlman AJA) in Manly Council v Byrne [2004] NSWCA 123 at [51]- [52] about the consequences that can be drawn from Jones v Dunkel concerning the obligations of the trial judge in a civil trial by judge alone:

“Thus, if a witness is not called two different types of result might follow. The first is that the tribunal of fact might infer that the evidence of the absent witness, if called, would not have assisted the party who failed to call that witness. The second is that the tribunal of fact might draw with greater confidence any inference unfavourable to the party who failed to call the witness, if that witness seems to be in a position to cast light on whether that inference should properly be drawn.

Even though a jury should be directed about the availability of the inferences which are recognised by Jones v Dunkel, it is entirely a matter for the jury whether it actually draws one, or both, of those inferences: Cafe v Australian Portland Cement Co Pty Ltd (1965) 83 WN (NSW) (Pt 1) 280 at 286, 287. Applying this principle to the situation of a trial by judge alone, there is no compulsion on the trial judge to draw either of the Jones v Dunkel inferences.”

98 In other words, in a civil trial by judge alone Jones v Dunkel licences, but does not compel, the drawing of inferences when a witness is not called. Whether either or both of the inferences are actually drawn is part of the trial judge's task of weighing the evidence. The same applies under the loosened procedural and evidentiary regime that section 73 ADT Act requires the Tribunal to adopt.

99 In the present case, there was no error of law in the Tribunal failing to draw, from the absence of Ms O'Brien, the inferences for which Mr Howell contends. Nor do I see any error of law in the passages I have quoted from the reasons for judgment of the Appeal Panel in which it considered the effect of Ms O'Brien's absence.

The Alleged "No Evidence" Finding

100 Mr Howell’s final submission is that the combined effect of paras [50], [58], and [59] of the reasons of the Appeal Panel (quoted at paras [89] and [91] above) is that the Appeal Panel made a finding that there was no evidence of improper purpose. He submits that there was evidence of improper purpose, albeit circumstantial evidence, and that incorrectly holding that there was no evidence is in itself an error of law.

101 I have already expressed my view that the proper reading of those paragraphs, in the context, is that the Appeal Panel took the view that there was no direct evidence of improper purpose, and insufficient circumstantial evidence to raise a prima facie case. I do not accept that the Appeal Panel made a finding that there was "no evidence" of improper purpose. Thus the submission fails.

Orders

102 I propose the following orders:

1. Appeal dismissed in matter 40731 of 2007.

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.

103 BELL JA: I agree with the orders proposed by Campbell JA for the reasons that his Honour gives.

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AMENDMENTS:


03/04/2008 - Word "testamentary" in second sentence of para 72 replaced with word "testamonial". - Paragraph(s) 72

03/04/2008 - . - Paragraph(s) .


LAST UPDATED:
3 April 2008