Vance v McCormack

Case [2004] ACTSC 78


RUSSELL VANCE v AIR MARSHALL ERROL JOHN McCORMACK IN HIS CAPACITY AS CHIEF OF AIR FORCE and THE COMMONWEALTH [2004] ACTSC 78 (2 September 2004)

EVIDENCE – legal professional privilege – whether applicable to communications with legal officers employed by Australian Defence Force - absence of practising certificates or statutory right to practise – need for independence notwithstanding employment relationship – question of fact – whether different considerations apply to confidential communications with commissioned full-time officers, civilian lawyers employed by the Australian Defence Force and reserve officers – general principles.

Public Service Act 1946 (Vic)

Legal Practitioners Act 1970 (ACT), ss 20, 22, 58
Legal Profession Act 1987 (NSW), s 25
Legal Practitioners Act 1981 (SA), s 17
Legal Practice Act 1996 (Vic), s 314
Legal Profession Act 2004 (Qld), s 47
Legal Practice Act 2003 (WA), s 35
Legal Practitioners Act (NT), s 22 (3A)
Judiciary Act 1903 (Cth), ss 55E, 55Q
Director of Public Prosecutions Act 1983 (Cth), s 15
Government Solicitor Act 1989 (ACT), s 5
Director of Public Prosecutions Act 1990 (ACT), s 16
Defence Act 1903 (Cth), s 123
Defence Force Discipline Act 1982 (Cth), ss 27(1), 29(1), 107, 137
Public Service Act 1999 (Cth)

Daniels Corporation International Pty Ltd v Australian Competition Consumer Commission [2002] HCA 49
Downey v O’Connell [1951] VLR 117

Re Ross [1913] VLR 291

Re Bannister v Legal Practitioners Ordinance 1970-1975; Ex Parte Hartstein (1975) 5 ACTR 100
Alfred Crompton Amusement Machines Ltd v Customs and Excise Commissioners (No 2) [1972] 2 QB 102
AM & S Europe Ltd v Commission of the European Communities [1983] 1 QB 878
Attorney-General (NT) v Kearney (1985) 158 CLR 500
Waterford v The Commonwealth (1987) 163 CLR 54
Grant v Downs (1976) 135 CLR 674
Ex parte Lloyd 5 November 1822, reported as a note in Ex parte Elsee (1830) Mont 69
ReProudfoot & Human Rights & Equal Opportunity Commission (1992) 28 ALD 734
Australian Hospital Care (Pindara) Pty Ltd v Duggan [1999] VSC 131
Clyne v New South Wales Bar Association (1960) 104 CLR 186
Westminster Airways Ltd v Kuwait Oil Co Ltd (1951) 1 KB 134
Law Society of New South Wales v Harvey [1976] 2 NSWLR 154

Law Council of Australia, Model Rules of Professional Conduct and Practice, March 2002, rule 7.2
Butterworths Cross on Evidence, vol 1 at [7015]
Australian Defence Force, Administrative Inquiries Manual, Defence Publishing Service 2000

No SC 317 of 2001

Judge:          Crispin J
Supreme Court of the ACT
Date:           2 September 2004

IN THE SUPREME COURT OF THE     )
  )          No. SC 317 of 2001
AUSTRALIAN CAPITAL TERRITORY )

BETWEEN:RUSSELL VANCE

Plaintiff

AND:AIR MARSHALL ERROL JOHN McCORMACK IN HIS CAPACITY AS CHIEF OF AIR FORCE

First defendant

AND:THE COMMONWEALTH

Second defendant

ORDER

Judge:  Crispin J
Date:  2 September 2004
Place:  Canberra

THE COURT ORDERS THAT:

  1. the defendants produce to the plaintiff for inspection and copying the following numbered documents:  1, 6, 13, 14, 21, 27, 33, 34, 35, 36,…

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AGLC
Vance v McCormack [2004] ACTSC 78
Case
[2004] ACTSC 78
Decision Date

CaseChat Overview and Summary

The case of Vance v McCormack came before the court with the plaintiff seeking to compel the defendants to produce certain documents for inspection and copying. The defendants resisted on the grounds of legal professional privilege, arguing that the communications were protected because they were made to legal officers employed by the Australian Defence Force. The Federal Court was tasked with determining whether these communications were indeed protected by privilege.

The primary legal issue before the court was whether communications with legal officers employed by the Australian Defence Force, who lack practising certificates or a statutory right to practice, qualify for legal professional privilege. This question required the court to consider the independence of these officers despite their employment status, and whether different considerations apply to confidential communications with commissioned full-time officers, civilian lawyers employed by the Australian Defence Force, and reserve officers. The court had to apply general principles of legal professional privilege to these unique circumstances.

The court found that the communications in question were indeed protected by legal professional privilege, despite the absence of practising certificates. The court held that the need for independence, a key element of privilege, was satisfied because the officers were required to provide legal advice free from influence or direction from non-legal members of the Defence Force. The court also determined that while different considerations might apply to various types of legal officers, the principle of privilege remained applicable. Consequently, the court ordered the defendants to produce the specified documents to the plaintiff for inspection and copying.

The final orders of the court mandated that the defendants produce the listed documents to the plaintiff for inspection and copying. This decision underscores the court's commitment to upholding the principle of legal professional privilege, even in the context of unique employment relationships within the Australian Defence Force.

Orders

Orders of the court

1.

the defendants produce to the plaintiff for inspection and copying the following numbered documents: 1, 6, 13, 14, 21, 27, 33, 34, 35, 36, 37, 78, 83, 84, 87, 88, 89, 92, 94, 103, 104, 107, 110, 115, 116, 122, 124, 125, 151, 153, 160, 165, 171, 172, 173, 194, 195, 203, 204, 215, 216, 225, 235, 236, 237, 238, 239, 252, 284, 286, 288, 297, 298, 299, 300, 306, 309, 311, 313, 314, 316, 320, 326, 340.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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