Express law No. 27

26 August 2005

Limitations of legal professional privilege

The ACT Court
of Appeal has held that the possession of a practising
certificate by government lawyers is not
a prerequisite for client legal privilege (CLP) under
the Evidence Act 1995.

Commonwealth and Air Marshal McCormack
in his capacity as Chief of the Air Force v Vance

Australian
Capital Territory Court of Appeal, 23 August 2005 (Gray,
Connelly and Tamberlin JJ) [2005] ACTCA 35

The Court of
Appeal allowed the Commonwealth's appeal
from the decision of Crispin J at first instance, which
was the subject of an earlier Express law.

Background

The plaintiff had been a serving officer of
the RAAF. He instituted a claim for damages and other relief
against
the Chief of the Air Force and the Commonwealth for what
he alleges was unlawful termination of his employment in
the RAAF in August 1998.

LPP claim

On discovery, the defendants opposed production
for inspection of a number of documents on the ground of
legal professional
privilege (LPP).

The LPP claim involved communications
with lawyers who were part of the then Defence Legal Office,
essentially
the in-house lawyers of the Department of Defence or military
lawyers (DLOs).

The civilian and military DLOs apparently
did not have practising certificates, and had no statutory
right to
practise.

Decision on appeal

The Court held that Order 34 Rule 3
of the ACT Supreme Court Rules (dealing with the discovery
of documents) displaced
the common law on LPP in favour of provisions of the Evidence
Act dealing with CLP.

The Court agreed with Crispin J that
practising certificates were important in demonstrating
that advice was independent
and given professionally. However, a practising certificate
was not conclusive in this regard. A person could still
be seen as 'independent' or 'as necessarily
acting in a legal professional capacity' for the
purposes of giving 'legal advice' without holding
a practising certificate.

The Court said:

It seems to us that the possession of a
current practising certificate can be a very relevant fact
to take into account
in determining whether or not an employed lawyer, whether
or not in government service, is employed in circumstances
where they are acting in accordance with appropriate professional
standards and providing the independent professional legal
advice such that would attract a claim for client legal
privilege under the Evidence Act. To make the holding of
a practising certificate a pre-condition for such a claim,
however, seems to us to go beyond the requirements of the
Evidence Act, and to amount to appellable error. [30]

Even
though the Court did not conclusively determine whether
the outcome would have been the same had the common law
applied, the decision may be persuasive in favour of a
ruling that a practising certificate is not a prerequisite
to LPP at common law.

Parliamentary Privileges Act issue

At first instance a
transcript of evidence given to a committee of the Senate
by a former legal officer in the RAAF was
admitted, and oral evidence and submissions were put to
the Court in relation to this evidence. This evidence was
relied upon by Crispin J in making an adverse finding on
independence. The Court of Appeal held that the admission
of the transcript of the evidence to the Senate committee
was contrary to section 16 of the Parliamentary Privileges
Act. The Court held further that no waiver of the privilege
could be imputed by the defendants' failure to object
to the admission of the transcript on the ground of parliamentary
privilege. As this privilege belonged to the Parliament,
it was incapable of being waived by a party to a court
proceeding.

Outcome

The Court of Appeal remitted the claims of CLP
to the trial judge for further consideration in accordance
with its
reasons. For further information on LPP and CLP, see AGS
Legal Briefing No. 65
,'Legal Professional Privilege
and the Government', 2 October 2002.

Text of the decision
is available at:
http://www.courts.act.gov.au/supreme/judgmentsca/vance1.htm

AGS
acted as solicitor for the appellants.

For further information
please contact:

Ms Geetha Nair
Senior Executive Lawyer
T 02 6253 7422 F 02 6253 7383
geetha.nair@ags.gov.au

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