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

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

The Tribunal had no power to grant access to an exempt document under s 63(2) of the Administrative Decisions Tribunal Act 1997 where the exemption was based on legal professional privilege; however, the Appeal Panel and primary judge erred in law by requiring a resolution of Council as the only possible means of waiver, as the possibility existed for waiver under general law principles, such as by conduct inconsistent with maintenance of the privilege.

Parties
Appellant/respondent: Gerard Michael McGuirk; Respondent/appellant: University of New South Wales
Jurisdiction
Australia
Judgment Date
07 October 2009
Procedural Posture
Appeal / Court of Appeal Judgment After Concurrent Hearing of Cross Appeals From Supreme Court and Administrative Decisions Tribunal Appeal Panel
Outcome
University’s appeal allowed; McGuirk’s appeal allowed; set aside orders inconsistent with the reasoning; costs awarded to McGuirk from point of self-representation onward; declaration made regarding Tribunal power; no order as to costs on University’s appeal.
Legal Topics
Freedom of Information, Exempt Documents, Legal Professional Privilege, Waiver of Privilege, Jurisdiction of Administrative Decisions Tribunal, Powers of University Officers
Administrative Law Freedom of Information Exempt Documents Legal Professional Privilege Waiver of Privilege Jurisdiction of Administrative Decisions Tribunal Powers of University Officers

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Parties

Gerard Michael McGuirk

Appellant/respondent

University of New South Wales

Respondent/appellant

Procedural Posture

Appeal / Court of Appeal Judgment After Concurrent Hearing of Cross Appeals From Supreme Court and Administrative Decisions Tribunal Appeal Panel

Legal Issues

  1. 1 Whether the Administrative Decisions Tribunal has power under s 63(2) of the Administrative Decisions Tribunal Act 1997 to grant access to exempt documents under legal professional privilege pursuant to the Freedom of Information Act 1989 (NSW)
  2. 2 Whether privilege was waived over legal advice by actions of university officers or council
  3. 3 Whether the Appeal Panel erred concerning the requirements for waiver of privilege

Ratio Decidendi

The Tribunal had no power to grant access to an exempt document under s 63(2) of the Administrative Decisions Tribunal Act 1997 where the exemption was based on legal professional privilege; however, the Appeal Panel and primary judge erred in law by requiring a resolution of Council as the only possible means of waiver, as the possibility existed for waiver under general law principles, such as by conduct inconsistent with maintenance of the privilege.

Court Disposition

University’s appeal allowed; McGuirk’s appeal allowed; set aside orders inconsistent with the reasoning; costs awarded to McGuirk from point of self-representation onward; declaration made regarding Tribunal power; no order as to costs on University’s appeal.

Orders

  • Allow the University’s appeal and set aside the orders of the Appeal Panel in University of New South Wales v McGuirk (No 2) [2008] NSWADTAP 8.
  • Declare that the Administrative Decisions Tribunal has no power under s 63(2) of the Administrative Decisions Tribunal Act 1997 to grant access to a person to a document which is an exempt document of the University under Schedule 1, cl 10 of the Freedom of Information Act 1989 (NSW).