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:
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 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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