Macquarie University v Howell (GD) [2008] NSWADTAP 46

Macquarie University v Howell (GD) [2008] NSWADTAP 46

The Tribunal was entitled to find, on the evidence, that most documents were not created for the dominant purpose of seeking legal advice and thus not privileged. However, the Tribunal failed to adequately explain why certain documents were not obtained in confidence and misapplied the test regarding prejudice to future supply of information. The orders regarding legal professional privilege were upheld (appeal dismissed on that ground), but the orders regarding confidential information exemption were set aside and leave granted to extend the appeal to the merits for documents the subject of a cl 13 claim.

Parties
Appellant: Macquarie University; Respondent: Sally Clare Howell
Jurisdiction
Australia
Judgment Date
25 July 2008
Procedural Posture
Appeal / Appeal Panel Decision Following Tribunal Decision
Outcome
Appeal allowed in part
Legal Topics
Legal Professional Privilege, Confidential Information, Bias, Exempt Documents, Freedom of Information Act 1989
Administrative Law Freedom of Information Legal Professional Privilege Confidential Information Bias Exempt Documents Freedom of Information Act 1989

Case Brief

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Parties

Macquarie University

Appellant

Sally Clare Howell

Respondent

Procedural Posture

Appeal / Appeal Panel Decision Following Tribunal Decision

Legal Issues

  1. 1 Whether documents were exempt under legal professional privilege (clause 10)
  2. 2 Whether documents were exempt as confidential information (clause 13)
  3. 3 Proper interpretation and application of exemptions under Freedom of Information Act 1989

Ratio Decidendi

The Tribunal was entitled to find, on the evidence, that most documents were not created for the dominant purpose of seeking legal advice and thus not privileged. However, the Tribunal failed to adequately explain why certain documents were not obtained in confidence and misapplied the test regarding prejudice to future supply of information. The orders regarding legal professional privilege were upheld (appeal dismissed on that ground), but the orders regarding confidential information exemption were set aside and leave granted to extend the appeal to the merits for documents the subject of a cl 13 claim.

Court Disposition

Appeal allowed in part

Orders

  • Order 2(e) set aside
  • Orders 2(b), (c) and (d) set aside to the extent they order release of exempt matter the subject of a cl 13 claim