Commonwealth v Vance

The Commonwealth of Australia and Air Marshal Errol John McCormack, in his capacity as Chief of Air Force, appealed a decision of Crispin J of the Supreme Court of the Australian Capital Territory. The dispute concerned the termination of the respondent's employment with the Royal Australian Air Force. The applicants sought to claim legal professional privilege over certain documents prepared by legal officers within the Defence Legal Office.

The primary legal issues before the Court of Appeal were whether legal professional privilege attaches to documents prepared by in-house lawyers who do not hold current practising certificates, and whether the admission of evidence concerning parliamentary proceedings was contrary to the *Parliamentary Privileges Act 1987* (Cth). A further preliminary issue arose regarding whether the claim for privilege should be determined under the common law or the *Evidence Act 1995* (Cth), given amendments to the Supreme Court Rules (ACT) concerning pre-trial discovery.

The Court of Appeal held that the *Evidence Act 1995* (Cth), not the common law, governed the determination of privilege for pre-trial discovery, as procedural rules are applied to ongoing litigation. The Court found that the trial judge erred in holding that a current practising certificate was a prerequisite for legal professional privilege. Applying the *Evidence Act*, the Court determined that the definition of "lawyer" and "legal advice" did not necessitate a current practising certificate, focusing instead on whether the communication was made for the dominant purpose of providing legal advice to a client, where "client" includes an employer such as the Commonwealth. The Court also noted that the respondent had not objected to the admission of the parliamentary material before the trial judge, and therefore, the appeal on that ground was unlikely to succeed.

The appeal was allowed, and the orders of Crispin J were set aside, except for the costs order relating to a recall notice of motion. The matter was remitted for determination in accordance with the reasons provided by the Court of Appeal. Leave to appeal from the decision concerning the costs of the recall notice of motion was refused.