Howell v Macquarie University (GD) [2007] NSWADTAP 10

Howell v Macquarie University (GD) [2007] NSWADTAP 10

The Appeal Panel affirmed that documents 2-6 and 8-14 were exempt on the basis of legal professional privilege because the Tribunal had sufficient material to find they were communications for legal advice, and the appellant's improper purpose case was unsupported by evidence sufficient to raise a prima facie case. Any error in referring to litigation privilege was not determinative. However, document 15 required reconsideration because it was not clear that advice privilege or litigation privilege applied. For document 1, the Tribunal erred procedurally by first raising possible cl 10 and cl 13 exemptions in its reasons without giving Mrs Howell an opportunity to be heard; the...

Jurisdiction
Australia
Judgment Date
01 March 2007
Procedural Posture
Appeal From Administrative Decisions Tribunal Review Decisions Concerning Refusal of Access Under the Freedom of Information Act 1989 / Appeal Panel Decision, With Leave to Extend to the Merits Granted for Limited Purposes
Outcome
Appeal 069043 allowed. Appeal 069044 allowed in part. The Tribunal's decision that documents 2-6 and 8-14 are exempt documents was affirmed, document 1 and document 15 were remitted to the respondent agency for reconsideration, and leave to extend to the merits was granted for limited purposes.
Legal Topics
['exempt Documents' 'legal Professional Privilege Exemption' 'internal Working Documents Exemption' 'breach of Confidence Exemption' 'improper Purpose Exception to Privilege' 'adequacy of Reasons' 'natural Justice' 'tribunal Remittal Powers' 'residual Discretion to Disclose Exempt Documents']
['administrative Law' 'freedom of Information' 'legal Professional Privilege' 'procedural Fairness'] ['exempt Documents' 'legal Professional Privilege Exemption' 'internal Working Documents Exemption' 'breach of Confidence Exemption' 'improper Purpose Exception to Privilege' 'adequacy of Reasons' 'natural Justice' 'tribunal Remittal Powers' 'residual Discretion to Disclose Exempt Documents']

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Procedural Posture

Appeal From Administrative Decisions Tribunal Review Decisions Concerning Refusal of Access Under the Freedom of Information Act 1989 / Appeal Panel Decision, With Leave to Extend to the Merits Granted for Limited Purposes

Legal Issues

  1. 1 ['Whether documents 2-6 and 8-14 were exempt documents because they contained matter protected by legal professional privilege.' "Whether the Tribunal erred by failing to address the appellant's improper purpose argument against legal professional privilege." 'Whether document 15 was properly treated as privileged.' 'Whether the Tribunal denied natural justice by raising possible exemptions under cll 10 and 13 of Schedule 1 to the Freedom of Information Act 1989 for document 1 without hearing from the appellant.' 'Whether remittal should be under s 63 or s 65 of the Administrative Decisions Tribunal Act 1997.' 'Whether the Tribunal could consider the residual discretion to disclose documents notwithstanding exemption.']

Ratio Decidendi

The Appeal Panel affirmed that documents 2-6 and 8-14 were exempt on the basis of legal professional privilege because the Tribunal had sufficient material to find they were communications for legal advice, and the appellant's improper purpose case was unsupported by evidence sufficient to raise a prima facie case. Any error in referring to litigation privilege was not determinative. However, document 15 required reconsideration because it was not clear that advice privilege or litigation privilege applied. For document 1, the Tribunal erred procedurally by first raising possible cl 10 and cl 13 exemptions in its reasons without giving Mrs Howell an opportunity to be heard; the...

Court Disposition

Appeal 069043 allowed. Appeal 069044 allowed in part. The Tribunal's decision that documents 2-6 and 8-14 are exempt documents was affirmed, document 1 and document 15 were remitted to the respondent agency for reconsideration, and leave to extend to the merits was granted for limited purposes.

Orders

  • ['As to appeal no 069043: Appeal allowed. Order (b) is set aside.' 'Leave to extend to merits granted, in accordance with 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...