ADT decision on legal professional privilege

In another McGuirk, v University of NSW decision (2006) NSWADT 84 the Tribunal has upheld the University’s determination to refuse access on the grounds of the legal professional privilege exemption (Clause 10 Schedule 1) to a memorandum of advice from the in house solicitor to the Vice Chancellor.

The Tribunal, states [paragraph 24] that the test of legal professional privilege for the purposes of the FOI Act are the common law principles rather than the client legal privilege test contained in the NSW Evidence Act. There are other cases where a different view has been taken but nothing of major significance seems to flow from this.

The decision [paragraph 25] includes the list of categories of circumstances in which legal professional privilege can arise – a list that has been used on a number of occasions in recent decisions. The Tribunal also considered a number of other matters relevant to a claim of privilege: whether the University’s Legal Office had the necessary degree of independence to satisfy the test, whether the communication lost its privileged status because it was part of a criminal or unlawful proceeding or was made for an illegal purpose; and whether privilege had been waived. It was satisfied that none of these factors in this case affected the privilege claim.

An application by the University for costs was rejected on the grounds that there were no “special circumstances” even though the Tribunal acknowledged that the application was misguided and somewhat out of the ordinary.