Vance v Air Marshall McCormack in his capacity as Chief of Air Force & Anor [2004] ACTSC 78 (2 September 2004)

Last Updated: 2 February 2005

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] HCA 60; (1985) 158 CLR 500

Waterford v The Commonwealth [1987] HCA 25; (1987) 163 CLR 54

Grant v Downs [1976] HCA 63; (1976) 135 CLR 674

Ex parte Lloyd 5 November 1822, reported as a note in Ex parte Elsee (1830) Mont 69

Re Proudfoot & Human Rights & Equal Opportunity Commission [1992] AATA 317; (1992) 28 ALD 734

Australian Hospital Care (Pindara) Pty Ltd v Duggan [1999] VSC 131

Clyne v New South Wales Bar Association [1960] HCA 40; (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, 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.

2. the parties have liberty to apply on short notice in relation to any issues regarding the scope of this order.

1. This is a motion for an order requiring the defendants to provide a large number of documents for inspection and/or copying by the plaintiff. The motion is opposed on the ground that all of the documents in question are the subject of a claim for legal professional privilege.

2. The substantive proceedings involve a claim for damages and other relief for what the plaintiff alleges was the unlawful termination of his employment as a squadron leader in the Royal Australian Air Force (RAAF) on 21 August 1998, ostensibly on medical grounds.

3. A board of inquiry was appointed on 24 October 1995 to enquire into the performance of the plaintiff's duties whilst he was the officer in charge of the RAAF base at Butterworth. The Board published a report in September 1997 that made certain findings against him. It is alleged that the report was void because the plaintiff had been denied natural justice, that the conduct of the Inquiry had otherwise been vitiated by errors of law and that the conclusions were so unreasonable that no reasonable person could have come to them.

4. Notwithstanding these perceived deficiencies, on 4 June 1998 the second defendant purported to terminate the plaintiff's employment. The notice of termination was revoked on 26 June 1998.

5. The second defendant again purported to terminate the plaintiff's employment on 27 July 1998 but on 10 August 1998 this notice of termination was also revoked. The Federal Court of Australia subsequently ordered, by consent, that an application by the plaintiff for an order setting aside the relevant decision be allowed and that the second defendant pay the plaintiff's costs.

6. It is alleged, in essence, that the termination purportedly made on medical grounds was not actually motivated by any belief relating to the plaintiff's medical condition but by a desire to get rid of him based upon allegations contained in the void report of the Board of Inquiry. In the alternative, the plaintiff alleges that the second defendant was negligent in terminating the plaintiff's employment when it knew or ought to have known that the recommendation to take that step had not in fact been based upon medical grounds and/or that the second defendant failed to make enquiries that would have revealed that fact. The plaintiff seeks damages based on loss of earnings, loss of superannuation and loss of reputation.

7. In an affidavit sworn on 1 May 2003, the plaintiff's solicitor, Mr Little, conveniently divided the disputed documents into four groups.

* The so called "remuneration documents" all but one of which are communications between the Australian Defence Force ("ADF") and the Australian Government Solicitor ("AGS") seeking or providing advice as to the basis on which legal officers should be paid. The plaintiff no longer disputes the claim for privilege in respect of these documents, although he does maintain his claim to be entitled to inspect document number 78 which apparently contains advice from a legal officer employed by the ADF ("DLO"). This document has been treated in these reasons for judgment as a "DLO document".

* The "Hilton documents" most of which consist of communications between DLOs and Mr Hilton SC and Dr Renwick of counsel in relation to advice given regarding the termination of the plaintiff's employment and the drafting of a termination notice, though document number 239 appears to relate to the drafting of a letter to the plaintiff's wife and documents numbered 33 - 37 appear to be related. A further document, number 252, which is a memorandum from Mr Thistleton, appears to have no relevance to the Hilton documents. The claim for privilege in respect of these documents is disputed.

* The "AGS documents" which consist of correspondence with the AGS and in respect of which the claim for privilege is no longer disputed.

* The "DLO documents" which consist of communications with DLOs in connection with requests for or the provision of legal advice. The claim for privilege in respect of all of these documents is disputed.

8. Mr Crowe SC, who appeared for the defendants pointed out that different considerations might apply to claims of privilege made in respect of DLO documents depending on whether the relevant legal officers held military commissions as full-time ADF officers ("military DLOs"), were civilian lawyers employed by the ADF ("civilian DLOs") or reserve officers such as Mr Hilton and Dr Renwick who were also in private practice ("reserve DLOs").

9. The general principles are clear. As Gleeson CJ, Gaudron, Gummow and Hayne JJ said in Daniels Corporation International Pty Ltd v Australian Competition Consumer Commission [2002] HCA 49 at [9], "It is now settled that legal professional privilege is a rule of substantive law which may be availed of by a person to resist the giving of information or the production of documents which would reveal communications between a client and his or her lawyer made for the dominant purpose of giving or obtaining legal advice or the provision of legal services, including representation in legal proceedings".

10. However, issues as to whether employed lawyers are sufficiently independent of their employers for a solicitor/client relationship to exist between them or even as to whether they may properly be regarded as practising as lawyers have long been debated and it is appropriate to refer to some of the leading authorities.

11. In Downey v O'Connell [1951] VLR 117 the Full Court of the Supreme Court of Victoria was obliged to determine whether a person was qualified for appointment to the office of stipendiary magistrate by reason of having been a barrister and solicitor of the Supreme Court and having been practising for a period of at least five years as required by certain regulations made under the Public Service Act 1946 (Vic). Gavan Duffy and O'Bryan JJ referred to the earlier decision of the Full Court in Re Ross [1913] VLR 291 and said that they were satisfied that this decision established that a person might still be practising the profession of a barrister and solicitor though confined in that practice to advising and acting for the Crown and Crown corporations and remunerated by a salary from the Crown. In considering whether Mr Downey fell within that category their Honours stated, at 123, that:

There are a number of things which are marks or characteristics of a practising solicitor. The most important of these is an independence of any superior control in the conduct of his professional work and a direct responsibility to the client or person who stands in an analogous relationship to that of client; another is the extent and volume of the legal business conducted by him; of less importance is the control of an office and a staff trained and versed in legal business and also the manner in which "the other side" in a bilateral transaction commonly treats him. Is the approach made to him as a solicitor for the supposed client, or to the supposed client direct? Take the case of a solicitor who is an employee of a public company. He may not appear to the world as the company's solicitor, but may act merely as a legal adviser to his employer. Such a person, we should say, cannot be said to be practising as a solicitor.

12. Their Honours noted that the evidence had established that Mr Downey had enjoyed independence not only in the advice which he tended to the Public Trustee but also in the conduct of his own department within the Public Trustee's Office. He had direct contact with private solicitors who had dealings with the Public Trustee and also with counsel. His own name appeared as solicitor on court documents and orders, and he was personally addressed as solicitor to the Public Trustee by other solicitors. Notwithstanding these matters, their Honours stated that Mr Downey's case had undoubtedly been on the border line though they ultimately concluded that his legal business had been conducted with the necessary "independence and freedom from control" and that it had been of a range sufficient to justify the conclusion that he had "practised" during the relevant period.

13. Smith J dissented, holding that a person who had been acting as a full-time public servant and who had been precluded from acting on instructions from anyone other than the department or instrumentality to which he had been assigned could not be held to have been "practising" as a barrister and solicitor.

14. In Re Bannister v Legal Practitioners Ordinance 1970-1975; Ex Parte Hartstein (1975) 5 ACTR 100 a Full Court of the Supreme Court of the Australian Capital Territory held that staff of the Australian Legal Aid Office admitted as barristers and solicitors of the court were not entitled to act as solicitors for members of the public. Fox J, with whose reasons for judgment Blackburn J agreed, observed that, in the ordinary case the solicitor is the fiduciary agent of the client and that personal trust and confidence and individual responsibility are central to the relationship. The solicitor must be free from conflicting obligations and pressures and it is the essence of the relationship that the solicitor retains individual personal responsibility to the client.

15. In Alfred Crompton Amusement Machines Ltd v Customs and Excise Commissioners (No 2) [1972] 2 QB 102 the English Court of Appeal took a different approach from that adopted by the Victorian Full Court in Downey v O'Connell. Lord Denning MR said, at 129, that:

The law relating to discovery was developed by the Chancery Courts in the first half of the 19^th century. At that time nearly all legal advisers were in independent practice on their own account. Nowadays it is very different. Many barristers and solicitors are employed as legal advisers, whole time, by a single employer. Sometimes the employer is a great commercial concern. At other times it is a government department or a local authority. It may even be the government itself, like the Treasury Solicitor and his staff. In every case these legal advisers do legal work for their employer and for no one else. They are paid, not by fees for each piece of work, but by a fixed annual salary. They are, no doubt, servants or agents of the employer . . . They are regarded by the law as in every respect in the same position as those who practise on their own account. The only difference is that they act for one client only, and not for several clients. They must uphold the same standards of honour and etiquette. They are subject to the same duties to their client and to the court. They must respect the same confidences. They and their clients have the same privileges.

16. His Lordship went on to sound a note of caution:

Being a servant or agent too, he may be under pressure from his client. So he must be careful to resist it. He must be as independent in the doing of right as any other legal adviser. . . . There is a safeguard against abuse . . . If there is any doubt as to the propriety or validity of a claim for privilege, the master or judge should without hesitation inspect the documents himself so as to see if the claim is well-founded, or not.

17. On the other hand, in AM & S Europe Ltd v Commission of the European Communities [1983] 1 QB 878 at 951 the European Court of Justice limited the scope of confidentiality to communications between a client and an independent lawyer, "that is to say one who is not bound to his client by a relationship of employment".

18. In insisting upon this requirement the Court explained, at 950, that:

. . . it should be stated that the requirement as to the position and status as an independent lawyer, which must be fulfilled by the legal adviser from whom the written communications which may be protected emanate, is based on a conception of the lawyer's role as collaborating in the administration of justice by the courts and as being required to provide, in full independence, and in the overriding interests of that cause, such legal assistance as the client needs. The counterpart of that protection lies in the rules of professional ethics and discipline which are laid down and enforced in the general interest by institutions endowed with the requisite powers for that purpose.

19. The issue was considered by the High Court of Australia in Attorney-General (NT) v Kearney [1985] HCA 60; (1985) 158 CLR 500. In that case Gibbs CJ said, at 510, that he did not doubt the correctness of the decision of the Court of Appeal in Alfred Crompton Amusement Machines Ltd v Customs and Excise Commissioners (No 2) provided that, in giving the advice, the employees were acting in their capacity as legal advisers. Wilson J cited the decision with tacit approval, at 521-522. Dawson J said, at 530-531, that he saw no reason for denying privilege to communications passing between salaried employees and their client provided that they are consulted in a professional capacity in relation to a professional matter and the communications are made in confidence and arise from the relationship of lawyer and client. However, the majority of the High Court held that the documents in question had not been privileged because privilege could not be used to protect communications made to further a deliberate abuse of statutory power and hence prevent others from exercising their legal rights.

20. The decision most apposite to the present proceedings is undoubtedly that of the High Court of Australia in Waterford v The Commonwealth [1987] HCA 25; (1987) 163 CLR 54 in which the majority upheld the claim for privilege in respect of Commonwealth documents that had been brought into existence for the sole purpose of seeking legal advice from salaried government lawyers or for the provision of such advice.

21. Mason and Wilson JJ, in the course of their joint judgment referred, at 61, to a number of authorities, including decisions of superior courts in Canada and Ireland, following the decision of the Court of Appeal in Alfred Crompton Amusement Machines Ltd v Customs and Excise Commissioners (No 2) and observed that a similar approach had been taken in the United States and by three members of the High Court in Attorney-General (NT) v Kearney. Their Honours expressed the opinion that "given the safeguards to which reference is made in the various citations" there was no reason to place legal officers in government employment outside the bounds of legal professional privilege. Their Honours then cited a passage from an earlier decision of the High Court in Grant v Downs [1976] HCA 63; (1976) 135 CLR 674, referring to the public interest in encouraging clients to retain solicitors, seek advice and make full and frank disclosure of the relevant circumstances to the solicitors, before stating, at 62, that:

To our minds it is clearly in the public interest that those in government who bear the responsibility of making decisions should have free and ready confidential access to their legal advisers. Whether in any particular case the relationship is such as to give rise to the privilege will be a question of fact. It must be a professional relationship which secures to the advice an independent character notwithstanding the employment.

22. Brennan J, who agreed with Mason and Wilson JJ as to the appropriate disposition of the appeal, said, at 70-71, that he found great weight in the view of the European Court of Justice that an independent lawyer is one who is not bound to his client by a relationship of employment and that this view faced up to reality whilst, in contrast, the aspirations which Lord Denning MR expressed in Alfred Crompton Amusement Machines Ltd v Customs and Excise Commissioners (No 2) sounded pious but unreal. His Honour cited the passage from the decision in AM & S Europe v Commission of the European Communities, which I have already quoted, and said that the disincentive of sanctions which professional disciplinary tribunals may impose for a breach of ethical rules will be diminished when the breach is committed in the interests of an employer and that the security and environment of employment tend to insulate a salaried lawyer from the opinions of professional peers which, his Honour suggested, was the chief disciplinary influence of the profession. Accordingly, his Honour was unable to accept that salaried lawyers should generally be assimilated to the position of the independent legal profession for the purpose of determining the availability of legal professional privilege. His Honour noted that the influences that naturally attend the relationship of employer and employee are not so significant when the legal adviser is in the employment of the Crown because, as Mason J and his Honour had mentioned in Attorney-General (NT) v Kearney at 517, "The independence of State Crown Solicitors and the Australian Government Solicitor in the giving of legal advice is - or ought to be - protected by the respective Attorneys-General as the first law officers of the Crown, and is buttressed by the laws relating to the public service and sometimes by specific legislation". His Honour did not address the situation of legal officers having a similar tenure in other government departments.

23. Whilst dissenting as to the disposition of the matter, Deane J accepted, at 81, that the conclusion that legal professional privilege can extend to protect the advice given within an organisation by a salaried legal adviser should be accepted as correct in Australia subject to an "important reservation" as to what, if any, qualification should be placed upon that conclusion to avoid potential abuse and in particular, as to the minimum academic and practical qualifications that must be held by "a salaried legal adviser" before the confidentiality of his or her professional legal advice would enjoy the protection of the privilege.

24. Dawson J, who also dissented as to the disposition of the matter, accepted that legal professional privilege may attach to communications passing between a salaried legal adviser and the employer, provided that the legal adviser is consulted in a professional capacity in relation to a professional matter, the communications are made in confidence and they arise from the relationship of lawyer and client. However, his Honour would have denied the application of legal professional privilege when the right to disclosure of a communication might be determined by reference to the doctrine of public interest immunity.

25. The more recent decisions of the High Court amply demonstrate that under Australian law communications for the purpose of obtaining or providing legal advice may, in some circumstances, be protected by legal professional privilege even though the advice is sought from or provided by salaried lawyers in the employ of their clients. However, even Lord Denning's formulation recognised that these lawyers must uphold the same standards of honour and etiquette and that they must be subject to the same duties as officers of the Court. As Mason and Wilson JJ obviously recognised in Waterford v The Commonwealth, that requires lawyers to retain due independence. Perhaps the best known affirmation of the independence which lawyers should enjoy from their clients is Lord Eldon's lofty pronouncement that, he "lends his exertions to all, himself to none" (see Ex parte Lloyd 5 November 1822, reported as a note in Ex parte Elsee (1830) Mont 69 at p 70n at p 72). This doubtlessly profound but somewhat Delphic statement reflected the expectation that, whilst lawyers should do what they can to assist their clients, they should never relinquish their own moral and professional autonomy. Legal practitioners are officers of the court and the codes of professional ethics, in all common law jurisdictions, recognise that they owe duties to the court and have other ethical obligations that must take priority over the client's wishes or instructions. If communications with employed lawyers are to be privileged, the lawyers must retain the independence required by their professional standing and obligations notwithstanding the employment relationship.

26. In the present case, Commodore Michael Smith AM, Director-General of The Defence Legal Service ("TDLS"), gave evidence that the TDLS was an in-house legal unit of the Department of Defence, formerly known as The Defence Legal Office, which had a staff of 190 people, including military and civilian DLOs. It also had the capacity to draw upon the services of some 320 legal officers of what he described as the Reserve components of the Navy, Army and Air Force. He deposed to the fact that, having reviewed the documents for which a claim for privilege had been made and which had been "authored" by lawyers within the in-house legal unit, he was able to confirm that that they involved communications to and from Colonel John Harvey, Wing Commander Paul Cronan, Wing Commander Jeanne Hugoe-Matthews, Mr Peter Benson, Group Captain Simon Harvey and Group Captain Alan Hemmingway. He said that all permanent military and civilian DLOs were legally qualified and admitted to practise but agreed in cross-examination that the military DLOs were not required to hold practising certificates. When pressed about this issue, he agreed that he, himself, had never held a practising certificate and that he was not aware of any of the officers he had named having had practising certificates at the relevant times. He had annexed to his affidavit a copy of a practising certificate that had been held by Colonel Harvey but it had expired on 30 June 1976.

27. Mr Purnell SC, who appeared for the plaintiff with Mr Erskine and Mr Clarke, submitted that the claim for privilege must fail because at least those DLOs on the permanent staff of the ADF did not have practising certificates and the evidence did not establish that any of the relevant DLOs had enjoyed a professional relationship with the ADF that secured to the advice an independent character notwithstanding their employment. I will deal with these issues sequentially.

The need for practising certificates

28. In all Australian jurisdictions the right to practise is generally dependent upon the holding of a practising certificate: see, for example, s 22 of the Legal Practitioners Act 1970 (ACT) ("the ACT Legal Practitioners Act"), s 25 the Legal Profession Act 1987 (NSW), s 17 of the Legal Practitioners Act 1981 (SA) and s 314 of the Legal Practice Act 1996 (Vic).

29. In Queensland and Western Australia the relevant state enactments contain provisions conferring limited rights to practise upon government lawyers generally: see s 47 of the Legal Profession Act 2004 (Qld) and s 35 of the Legal Practice Act 2003 (WA). On the other hand, s 22 (3A) of the Legal Practitioners Act (NT) expressly provides that, subject to the Judiciary Act 1903 (Cth) ("the Judiciary Act"), a legal practitioner who is an officer or employee of a prescribed department, body or organisation shall not practise in the Territory as a legal practitioner unless he or she holds, or is deemed to hold, a current practising certificate.

30. There are some statutory provisions conferring a limited right to practise on government lawyers employed by particular government agencies: see, for example, ss 55E and 55Q of the Judiciary Act, s 15 of the Director of Public Prosecutions Act 1983 (Cth), s 5 of the Government Solicitor Act 1989 (ACT) and s 16 of the Director of Public Prosecutions Act 1990 (ACT). However, the Judiciary Act does not address the position of DLOs and it would appear that the Commonwealth Parliament, having chosen to expressly confer such rights on salaried legal officers employed in certain areas, has chosen not to confer them upon DLOs.

31. Commodore Smith did suggest that s 123 of the Defence Act 1903 (Cth) ("the Defence Act") obviated the need for DLOs to hold practising certificates in order to carry out their duties. The section is in the following terms:

(1) A member of the Defence Force is not bound by any law of a State or Territory:

(a) that would require the member to have permission (whether in the form of a licence or otherwise) to use or to have in his or her possession, or would require the member to register, a vehicle, vessel, animal, firearm or other thing belonging to the Commonwealth; or

(b) that would require the member to have permission (whether in the form of a licence or otherwise) to do anything in the course of his or her duties as a member of the Defence Force.

(2) The Secretary, or an officer within the meaning of the Public Service Act 1922 authorised in writing by the Secretary, may, by instrument in writing, declare:

(a) a person:

(i) who is an officer or employee within the meaning of that Act; and

(ii) who is employed in the Department in, or in connection with, the manufacture of firearms; or

(b) a person who is employed by a body corporate concerned with the manufacture of firearms, being a body corporate declared by the regulations to be a body corporate in relation to which this subsection applies;

to be an authorised employee for the purposes of this subsection and, where such a declaration is made in relation to a person, the person continues to be an authorised employee for the purposes of this subsection while the person continues to be so employed.

(2A) A declaration under subsection (2) may be made by declaring the person holding a particular office or occupying a particular position to be an authorised employee for the purposes of that subsection.

(3) A person who is an authorised employee for the purposes of subsection (2) does not contravene any law of a State or Territory that would require the person to have permission (whether in the form of a licence or otherwise) to have in his or her possession a firearm by reason only of having such a firearm in his or her possession, without such permission, in the performance of his or her duties.

32. This section is obviously cast in very general terms and does not expressly confer any right to practise. It would presumably protect DLOs from prosecution for any offences based upon allegations that, in carrying out duties as members of the Defence Force, they were practising law whilst not holding practising certificates. Indeed, it would provide the same protection for a member who had no legal qualifications and had never been admitted as a legal practitioner. The section does not, in my opinion, warrant an inference that such members should be treated as if they were duly admitted legal practitioners and/or held practising certificates. I am prepared to assume that, in expressly conferring a limited right of practise upon lawyers by provisions such as s 55E and s 55Q of the Judiciary Act, the Commonwealth Parliament intended that confidential communications with them would be protected by privilege in the same circumstances as privilege would arise to protect similar communications with lawyers in private practice. However, a law which merely relieves people from the need to obtain permission to perform certain duties does not, ipso facto, confer the professional standing normally required to undertake professional practice or create privileges of the kind that arise when dealing with those who have such professional standing. I can see no basis for reading into the section an unexpressed intention to create privilege in respect of communications with any person who is a "member of the Defence Force" even if read or written in the course of his or her duties, though there may be circumstances in which the confidentiality of such communications would be protected by public interest immunity.

33. It is true that s 20 of the ACT Legal Practitioners Act provides that, subject to the Act, a person who has signed the roll of legal practitioners is entitled to practise and that DLOs would not be bound by the restrictions on practise imposed by other sections of the Act insofar as they were carrying out defence force duties. However, it was not suggested that the qualification to s 20 should be construed as reflecting a legislative intention to provide a right to practise that was not subject to other provisions of the Act or that, in enacting s 123 of the Defence Act, the Commonwealth Parliament had intended to transmute a qualified right under Territory law into a right that was not so qualified.

34. Mr Crowe submitted that in Waterford v The Commonwealth the majority had not suggested that the salaried lawyer must have a practising certificate and that the reference to a practising certificate by Deane J, at 81, had been somewhat ambiguous. Whilst the Administrative Appeals Tribunal in Re Proudfoot & Human Rights & Equal Opportunity Commission [1992] AATA 317; (1992) 28 ALD 734 had suggested that legal advice given by a government lawyer could be the subject of privilege "at least where the giver of the advice holds a current practising certificate", Mr Crowe submitted that there was no basis for this qualification. He argued that it was sufficient that the person had been duly admitted as a legal practitioner.

35. However, whilst it is true that the majority in Waterford v The Commonwealth did not address this issue, Deane J made the point that Lord Denning's statement that salaried legal advisers were regarded by the law "as in every respect in the same position as those who practise on their own account" save that they act for only one client, would not be true in this country unless, in addition to their academic and other practical qualifications, they were listed on a roll of current practitioners and held a current practising certificate, or worked under the supervision of such a person. Furthermore, Dawson J said, at 96, that "the legal adviser must be qualified to practise law and, it seems, subject to the duty to observe professional standards and the liability to professional discipline". Similarly, in Attorney-General (NT) v Kearney, at 510, Gibbs CJ suggested that advice will be privileged "only if the lawyer who gives it has been admitted to practise and (I incline to think) remains subject to the duty to observe professional standards and the liability to professional discipline".

36. It is difficult to see how these requirements could be regarded as having been satisfied by legal advisers who did not hold practising certificates or, perhaps, worked under the supervision of others with practising certificates, unless they enjoyed a statutory right to practise such as that provided by s 55E or 55Q of the Judiciary Act. In the latter case the legislature might reasonably be taken to have been satisfied that the circumstances of employment for those legal advisers would provide alternative means of ensuring that they maintain due professional standards, keep abreast of developments in professional ethics and enjoy the necessary independence in the provision of legal advice.

37. More fundamentally, it is difficult to see how privilege could be justified on public policy grounds when the legal advisers consulted have no right to practise. In Grant v Downs [1976] HCA 63; (1976) 135 CLR 674, at 685, Stephen, Mason and Murphy JJ explained that:

The rationale of this head of privilege, according to traditional doctrine, is that it promotes the public interest because it assists and enhances the administration of justice by facilitating the representation of clients by legal advisers, the law being a complex and complicated discipline. This it does by keeping secret their communications, thereby inducing the client to retain the solicitor and seek his advice, and encouraging the client to make a full and frank disclosure of the relevant circumstances to the solicitor. The existence of the privilege reflects, to the extent to which it is accorded, the paramountcy of this public interest over a more general public interest, that which requires that in the interests of a fair trial litigation should be conducted on the footing that all relevant documentary evidence is available.

38. Whilst, as I have mentioned, privilege may arise even when the lawyers providing the relevant advice are employed by government bodies, it is clear from this passage that it is nonetheless rooted in the relationship of legal practitioner and client, rather than the relationship of legally qualified employee and employer, and that it is justified by the public interest in "facilitating the representation" of the clients. This rationale appears to presuppose that the practitioners are entitled to practise. It would seem difficult to justify recognising, let alone according paramountcy to, some perceived public interest in facilitating the representation of clients by legal advisers who have no actual right to represent them.

39. It is true that the "clients" of legal advisers with no right to practise may have a substantial interest in ensuring that the confidentiality of their disclosures be protected, but this may also be true of communications with accountants or other professional advisers who provide advice of a legal nature and who may even have academic qualifications in law, but have no right to practise as lawyers. Yet privilege has not been recognised in relation to communications with people in these professions.

40. Those who have been admitted as legal practitioners may, with some justification, suggest significant points of distinction. For example, legal practitioners are admitted by superior courts only after proof of good character and successful completion of courses of study, including legal ethics, which must generally be approved by the courts themselves. However, admission confers only a right to practise that is contingent upon possession of a practising certificate and practitioners are invariably issued with restricted certificates until they have demonstrated that they have the necessary experience and competence to be entrusted with an unrestricted right to practise. The requirements for practising certificates are intended to ensure that those entitled to practise remain in good standing throughout their legal careers by demonstrating continued adherence to current ethical and professional standards.

41. After explaining the rationale for the privilege in Grant v Downs, Stephen, Mason and Murphy JJ added, at 685, a note of caution:

None the less there are powerful considerations which suggest that the privilege should be confined within strict limits.

In the Birmingham Case [1913] 3 KB 850 Hamilton L.J. directed attention to some of these considerations as they relate to claims of privilege made by corporations for their records and correspondence. From his Lordship's observations two points of importance emerge: (1) that the privilege does little, if anything, to promote full and frank disclosure or truthfulness; (2) that the day-to-day records of a corporation which come into existence in the ordinary course of its business may lend themselves to a claim of privilege if the purposive element of a submission to a solicitor is too easily satisfied, thereby excluding effectively the documents from production and inspection or at least subjecting the other party to the disadvantage of surprise when they are used.

To these criticisms others may be added. There is, we should have thought, much to be said for the view that the existence of the privilege makes it more difficult for the opposing party to test the veracity of the party claiming privilege by removing from the area of documents available for inspection documents which may be inconsistent with that case. To this extent the privilege is an impediment, not an inducement, to frank testimony, and it detracts from the fairness of the trial by denying a party access to relevant documents or at least subjecting him to surprise.

42. The last point is of some relevance. Grave injustice could be caused to parties denied access to relevant and perhaps decisive evidence by spurious claims of privilege, the very making of which could prevent them from gaining access to any means of effectively challenging the claims. The law is substantially dependent upon trust in the competence and integrity of legal practitioners to obviate or at least reduce that risk. That trust is not based solely upon the possession of academic qualifications in law or admission as legal practitioners. It is based largely upon continued good standing in a profession that takes active steps to ensure the maintenance of appropriate ethical and professional standards. It does so by fostering awareness of its traditions of integrity and service, by the influence of peers, by the need for practitioners to demonstrate continuing compliance with ethical and professional standards and in most jurisdictions participation in continuing legal education in order to maintain practising certificates.

43. In contrast, as Commodore Smith conceded, DLOs are not required to keep abreast of relevant changes in the rules of practice or legal ethics.

44. It is true that in Australian Hospital Care (Pindara) Pty Ltd v Duggan [1999] VSC 131 Gillard J, after observing that in some circumstances the failure to have a practising certificate would carry substantial weight on the question of lack of independence, said that each case must depend upon its own circumstances and added: "no doubt a court would be more concerned with the qualifications and experience of the lawyer in question, more so than the question of registration". In that case the lawyer had been an interstate practitioner entitled to practise in Victoria without a Victorian practising certificate and the statement should, perhaps¸ be considered in that context. It would otherwise be difficult to understand the suggestion that courts dealing with issues of this kind should be more concerned with the qualifications and experience of the lawyer in question than with his or her right to practise. Privilege claimed in respect of communications with a lawyer duly entitled to practise is not dependent upon his or her relative eminence in the profession and, if duly admitted and entitled to practise, the nature and extent of his or her qualifications and experience are irrelevant. Conversely, even outstanding legal qualifications and experience can provide no adequate basis for privilege when a lawyer has no current right to practise, whether because of a failure to gain admission, a failure to obtain a practising certificate or suspension or cancellation of such a certificate on grounds of misconduct.

45. The requirements for practising certificates are not mere formalities. They form an important part of the legislative scheme for the regulation of the legal profession. For example, if the Professional Conduct Board of the Law Society of the ACT finds that a solicitor of the Territory is guilty of professional misconduct or unsatisfactory professional conduct warranting suspension from practise, its only statutory power to impose such a sanction arises from s 58 of the ACT Legal Practitioners Act which authorises it to "suspend for a specified period not exceeding 12 months any practising certificate held by the solicitor." In the absence of any effective power to suspend defaulting practitioners, the Professional Conduct Board's ability to compel compliance with proper professional standards would be substantially more limited. Hence, in a practical sense, lawyers without practising certificates cannot be said to have the same liability to professional discipline as their colleagues.

46. It is true that ACT barristers are not presently issued with practising certificates and that any disciplinary powers that may be exercised in relation to them by the ACT Bar Association arise only from the rules of the Association which, of course, only bind members. In all other Australian jurisdictions barristers are required to have practising certificates. The absence of statutory recognition for the Association and any power for it to issue practising certificates has long permitted a situation in which it is at least theoretically possible for a practitioner to substantially escape regulation by posturing as a barrister whilst declining to join the Association. It is to be hoped that the ACT Bar Association which is, of course, the body responsible for the formulation and enforcement relating to the rules of conduct for barristers, will ultimately be given power to close this potential loophole. However, even in the absence of statutory recognition or powers, bar associations have long been recognised as having standing to move courts for the disbarment of barristers: see, for example, Clyne v New South Wales Bar Association [1960] HCA 40; (1960) 104 CLR 186. In the present case it was not suggested that any of the DLOs who provided relevant advice had been purporting to practise as ACT barristers. Furthermore, the existence of a legislative lacuna that could conceivably allow a defaulting practitioner to slip through the regulatory net should not be permitted to detract from the obvious importance of maintaining professional standards and ensuring that all legal practitioners are subject to an effective disciplinary regime enabling them to be effectively called to account in relation to their compliance with prevailing professional standards by an independent professional body.

47. In my opinion, privilege arises to protect the confidentiality of communications with a legal adviser only when he or she has an actual right to practise and not merely when he or she has been admitted and joined the ADF, even if permitted to carry out ADF legal duties without holding a practising certificate by s 123 of the Defence Act. If for this reason alone, the present claim to privilege must fail, at least in relation to communications with military or civilian DLOs who did not hold practising certificates and were not stationed at the relevant times in Queensland or Western Australia.

48. This conclusion should not, of course, be seen as imposing any substantial constraints on the rights of government bodies to employ their own legal advisers. It means only that the lawyers in question will need to enjoy some statutory right to practise or hold current practising certificates if communications with them for the purpose of obtaining legal advice are to enjoy the protection of privilege.

The need for independence

49. As previously mentioned, the broader issue raised by this application is whether the nature of the DLOs' employment with the ADF involved a professional relationship which secured to the advice sought or conveyed by the relevant documents an independent character notwithstanding the employment. As Mason and Wilson JJ observed in Waterford v The Commonwealth, at 62, whether in any particular case, the relationship is such as to give rise to privilege is a question of fact.

50. Mr Crowe argued that, in considering any submissions as to the necessary independence of DLOs, I should adopt the approach taken by Gillard J in Australian Hospital Care (Pindara) Pty Ltd v Duggan. In that case privilege was claimed in respect of documents alleged to contain legal advice from a legal practitioner who held the position of "General Counsel" of the plaintiff's parent company. After considering the decisions of the High Court in Kearney and Waterford v The Commonwealth, Gillard J concluded that legal professional privilege will apply if it is established that the relevant communication arose as a result of the employer consulting the employee in a professional capacity, that it related to a professional matter, that it was made in confidence, that it arose from the relationship of lawyer and client and that it satisfied one of the tests laid down in Grant v Downs. His Honour added that, in addition to these elements, there appeared to be a sixth requirement which was the element of independence. His Honour cited the following passage from the judgment of Stephen, Mason and Murphy JJ in Grant v Downs, at 689:

It is for the party claiming privilege to show that the documents for which the claim is made are privileged. He may succeed in achieving this objective by pointing to the nature of the documents or by evidence describing the circumstances in which they were brought into existence. But it should not be thought that the privilege is necessarily or conclusively established by resort to any verbal formula or ritual. The court has power to examine the documents for itself, a power which has perhaps been exercised too sparingly in the past, springing possibly from a misplaced reluctance to go behind the formal claim of privilege.

51. Gillard J said that the authorities had not addressed the issues that arise for consideration and determination in the event that the independence of the lawyer is brought into question. Whilst acknowledging that the ultimate burden rests upon the party claiming the privilege his Honour said, at [62] and [63]:

In my opinion, in the first place it satisfies that burden by the client party swearing the affidavit of documents in the usual form claiming legal professional privilege in respect to the documentary communications. In so doing the party establishes the conditions of the privilege including the fact of independence from any pressures or constraints imposed by the client. In other words, the affidavit establishes the necessary facts.

Whilst the affidavit of documents no longer has the sanctity as it did in the past, nevertheless it is the starting point and due weight should be given to the testimony of the deponent.

52. His Honour proceeded to cite the judgment of Jenkins LJ in Westminster Airways Ltd v Kuwait Oil Co Ltd (1951) 1 KB 134 at 146 in which his Lordship affirmed that whilst each case must depend upon its own circumstances the court should, generally speaking, accept the evidence contained in the affidavit filed in support of the claim of privilege without going further and inspecting the documents. Gillard J also observed that the form of affidavit of documents in the Victorian Rules of Court had never required a deponent to swear that at the relevant time the legal adviser had been acting independently. His Honour added that "a legally qualified practitioner knows his ethical obligations and his duty to the court and is duty bound to approach the task of providing advice in a professional, ethical, honest and independent way". The affidavit is that of the client, not the solicitor and, once that affidavit has been sworn claiming privilege in a manner that would otherwise justify the conclusion that the claim had been properly made, then "the prima facie position is that the legal adviser was acting independently at the relevant time". If the claim is disputed the other party has "the evidentiary burden of establishing facts which prima facie rebut the presumption."

53. I accept that it may generally be presumed that a legal practitioner acting for a party has performed his or her function with the necessary degree of independence to found the claim for legal professional privilege, though I think it may be going too far to suggest that an affidavit which has not been sworn by the lawyer in question and does not address the issue of independence provides a prima facie case on that issue. In my opinion, such a "presumption" must be understood in this context as an inference that may generally be drawn from all of the circumstances including the trust traditionally reposed in legal practitioners, rather than a conclusion that must be drawn as a matter of law unless evidence of sufficient cogency is adduced to the contrary. I accept that an evidentiary onus is cast upon the party seeking to resist the claim of privilege but that onus merely requires the party to show that there is sufficient evidence to raise an issue as to the existence or non-existence of the relevant fact (see generally Butterworths Cross on Evidence, vol 1 at [7015] and the ensuing discussion). As the High Court made clear in Grant v Downs, the legal onus rests upon the party seeking to maintain a claim of privilege and, once the issue has been properly raised by sworn evidence, the evidentiary onus has no further effect and the claim must be rejected unless the party seeking to maintain it is able to prove that the communication arose from a relationship of lawyer and client attended by the necessary independence.

Military DLOs

54. In the present case, Mr Purnell submitted that the evidence revealed a number of issues raising substantial doubts as to whether any of the DLOs holding commissions as full-time ADF officers had acted with the requisite independence.

55. First, the evidence suggested that they did not have practising certificates and, unlike lawyers employed in some other government bodies, did not enjoy a statutory right to practise.

56. Second, the evidence did not establish that their independence was protected by Attorneys-General and buttressed by laws relating to the public service and/or other more specific legislation which, as Mason and Brennan JJ suggested in Attorney-General (NT) v Kearney at 517, protected the independence of state Crown Solicitors and the Australian Government Solicitor.

57. Third, whilst Commodore Smith maintained that DLOs were expected to provide advice independently of any influence from superior officers, they are clearly employed within an authoritarian structure in which obedience may be enforced by penal sanctions. Section 27(1) of the Defence Force Discipline Act 1982 (Cth) (the "Discipline Act") provides that it is an offence punishable by a maximum penalty of two years' imprisonment for a member of the Defence Force to disobey a lawful command by a superior officer. Section 29(1) provides that it is an offence punishable by a maximum penalty of 12 months' imprisonment for a defence member or defence civilian to fail to comply with a general order applicable to that person.

58. There may be instances in which lawyers conclude that other ethical imperatives require them to breach such a statutory obligation and to accept whatever penal sanction may be imposed as a consequence. In general, however, it must be expected that once lawyers are subject to statutory obligations of obedience to the commands of others and amenable to criminal sanctions in the event of non-compliance, the degree of independence they may exercise will generally be limited to that permitted by senior officers entitled to command.

59. Commodore Smith sought to address this issue by pointing out that DLOs are amenable only to lawful commands. However, an order made under the authority of Commonwealth legislation would not be unlawful merely because it required a subordinate to act in a manner that would otherwise be contrary to rules of legal ethics or professional standards and my attention was not drawn to any provision of the Act that would make it unlawful for a senior officer to give directions as to the form or content of documents containing or purporting to contain legal advice.

60. In fact, it seems clear that a DLO could be ordered to act in a manner that would be quite contrary to prevailing standards of professional ethics. In 1998, Ms Jacqui Kelly MP, then a Minister in the Federal Government and a former RAAF legal officer, explained in evidence given to the Senate Joint Standing Committee on Foreign Affairs, Defence and Trade that "ADF lawyers are employed within the chain of command and consequently they can be commanded to do things against their legal training". Commodore Smith did not dispute this proposition, adding only that "Provided there's no illegality involved is a caveat". However, the scope of the orders that members of the ADF may be compelled to obey by relevant provisions of the Discipline Act is not constrained by any provision protecting an overriding entitlement for DLOs to act in accordance with accepted professional standards. When asked whether a commanding officer could order or give instructions to a DLO that would conflict with the Bar rules or the solicitors professional conduct rules, Commodore Smith sought to evade the question, protesting that it was a theoretical proposition and that any form of order, lawful or unlawful, could be given. Despite his evident reluctance to address the issue, the answer is obvious. The provisions of a Commonwealth statute requiring obedience would plainly prevail over rules promulgated by professional associations.

61. Fourth, many DLOs would be under the command of superior officers who were not legally qualified and could not be expected to have a full appreciation of the ethical and professional standards which practising lawyers are expected to maintain or of the need for their subordinates to maintain their own independent judgment. Traditions of loyalty as well as obedience suggest a culture in which advice and decisions should be guided by the principle that the interests of the Commonwealth should prevail. Whilst practising lawyers also recognise a duty to give priority to the interests of their clients, the duty is subject to well understood limitations based upon overriding duties to the court and the need to comply with relevant rules of ethics and practice.

62. Fifth, there was no requirement for DLOs to be members of a Law Society or a Bar Association, no requirement that they keep abreast of developments in ethical rules or professional standards and no provision for peer review of their ethical standards.

63. Sixth, the professional standards of DLOs could not be enforced to the same extent by disciplinary proceedings and sanctions. Whilst Commodore Smith did suggest that DLOs were amenable to discipline by the professional bodies in the relevant jurisdictions, the ethical codes promulgated by such bodies do not have statutory force and it is difficult to see how any ethical duty of compliance could be maintained in the face of a direct order made under the authority of a Commonwealth statute. Furthermore, given the terms of s 123 of the Defence Act, it would appear that the more stringent disciplinary sanctions such as suspension of practising certificates or even removal from a roll of practitioners would not prevent a lawyer who was a member of the ADF from continuing to act as a DLO.

64. Seventh, there was at least some evidence suggestive of an ADF culture within which DLOs clearly lacked the requisite independence. During her evidence to a Senate Committee on 11 May 1998 concerning the Board of Inquiry, Ms Kelly explained:

I think another problem with the current system is that the lawyers are general service officers. That is important because they are then in a general service chain of command where they can be commanded to do things. That may be against their legal training in a civilian outfit but it is perfectly acceptable, culturally, within the RAAF. They are also within a chain of command within the service lawyers. So you have two chains of command running the junior legal officers. That is a contradiction in itself. You are answerable to both commands because both of them have an input on your annual report.

There is also the RAAF culture: do what is in the interests of the RAAF - be that keeping something out of the media or keeping our image very shiny and bright, which is always important to an organisation as proud as the RAAF. It is a systemic problem. It is not something that any one person could have avoided.

65. Ms Kelly's evidence clearly suggests a culture in which the independence normally enjoyed by practising lawyers and perhaps even their ethical orientation may be supplanted to some extent by norms of obedience and loyalty.

66. The risk may be compounded by the fact that ADF legal officers are also required to perform non legal duties and that an appraisal of an officer's performance may reflect contributions both from the officer's immediate supervisor in the chain of command as well as those from the Director-General or another senior lawyer.

67. Mr Purnell also relied upon evidence of a number of incidents which he suggested demonstrated the existence of such a culture. Whilst I think it is unnecessary for me to mention every incident, it may be appropriate to refer to some parts of the evidence which do seem to raise real questions as to the extent to which the independence of DLOs may be respected within the ADF.

68. One such incident relied upon by Mr Purnell occurred during the proceedings of the Board of Inquiry into the plaintiff's conduct when the President simply ordered that the DLO assigned to be the plaintiff's counsel "hand over all files, all papers and all documentation in relation to . . . all advice that he may have given to SQNLDR [Squadron Leader] Vance". He also ordered the DLO to hand over his computer and all floppy discs. These orders clearly required the DLO to violate his client's privilege without even consulting him about the matter. It should be noted that the President was not called to give evidence and I did not have the benefit of any explanation from him, but at face value his conduct in making these orders appears to have been quite improper.

69. The DLO representing the plaintiff complied without protest. Again, he was not called to give evidence and I did not have the benefit of any explanation for his conduct, but at face value his failure to oppose such a grave infringement of his client's legal rights was also improper. The principle that a practitioner must maintain the confidentiality of his or her client is well established and reflected in numerous codes of professional conduct including, most recently, rule 7.2 of the Model Rules of Professional Conduct and Practice published by the Law Council of Australia in March 2002 ("the Model Rules"). I accept that he was bound by the orders he was given but he could have at least objected and explained the need to respect the plaintiff's privilege, albeit to a superior officer who should already have known better.

70. Yet there is no reason to suppose that, in giving these orders, the President realised the impropriety of requiring the DLO to blatantly breach the plaintiff's rights or that, in meekly complying with the orders, the DLO understood that he was failing in his duty to oppose such a breach. The most obvious explanation for their conduct is that both officers had been so influenced by the cultural milieu within which they worked that they were effectively unable to make an independent judgment based on legal and ethical duties that should have been accepted without question by any legal practitioner.

71. Regrettably, there was also evidence that DLOs assigned to represent service members charged with criminal or disciplinary offences sometimes seemed unable to understand the need to act independently on their behalf. During the course of her evidence in May 1998, Ms Kelly explained that:

Often I would find myself advising the defending officer, who would be a flight lieutenant; I would advise the prosecuting officer and I would advise the CO. Basically, they would all walk out of there and they would be pretty happy because the defending officer probably got what he thought he was going to get, but whether that is really independence of the judiciary is another thing.

72. It should be noted that a "CO" (commanding officer) has power to try or otherwise deal with charges relating to a wide range of service offences: see s 107 of the Discipline Act.

73. Mr Purnell also cited a direction issued by Group Captain Hemmingway on 10 December 1999 which purported to remind legal officers of the need to be aware of their responsibilities when providing legal advice to members of the ADF. It stated:

First and foremost, you are employed by the Commonwealth and should not give advice that is contrary to the interests of the Commonwealth.

74. The direction added that if there was any likelihood that the matter upon which advice was sought would place the legal officer in a conflict of interest situation then he or she should not provide that advice but suggest that the member seek independent legal advice.

75. Mr Crowe submitted that this direction was entirely reasonable and that it merely emphasised the difficulties inherent in attempting to act for individual members of the ADF who find themselves in conflict with the Commonwealth. However, this submission does not adequately take into account the context in which DLOs may be forced to comply with this direction.

76. Section 137 of the Discipline Act provides that a convening authority should generally afford an accused person the opportunity to be represented by a DLO at his trial. Furthermore, the Australian Defence Force Administrative Inquiries Manual provides that ADF inquiries must be fair and be seen to be fair, that they must comply with applicable standards of procedural fairness and administrative law, that the due process aspects of natural justice must be observed throughout the Inquiry process and that, as a matter of policy, a person deemed likely to be affected by the Inquiry is to be provided with legal representation by a service legal officer at Commonwealth expense.

77. Any lawyer representing a person at any hearing, let alone a criminal trial, must obviously regard that person as his or her client (see, for example, the definition of "client" in the Model Rules) and as Street CJ said in Law Society of New South Wales v Harvey [1976] 2 NSWLR 154, at 170, there can be no doubt that "the duty of a solicitor to his client is paramount, and that he must not prefer his or the interest of another to that of his client". The mere fact that he or she has been employed or retained by some other person or body to represent the client does not in any way relieve him or her of that duty. Hence, a lawyer engaged by a legal aid body to represent an accused person would clearly breach his or her duty by accepting any instruction not to take any steps in the client's interests that might embarrass or otherwise adversely affect that body's interests.

78. It is true that lawyers should generally seek to avoid such conflicts of interest and that, if the interests of the client and instructing solicitors conflict, counsel should normally advise the solicitors that they should decline to accept further instructions in the matter and refer the client to independent solicitors. However, the terms of s 137 of the Discipline Act and the relevant portion of the Australian Defence Force Administrative Inquiries Manual clearly contemplate the allocation of DLOs to represent members of the ADF in circumstances in which such conflicts are likely to arise. In this context it is difficult, if not impossible, to see how the ADF could comply with the requirements of the Act and/or Manual without placing DLOs in a position in which they were forced to choose between adhering to their duty to the client and infringing the direction.

79. It is also true that, viewed over all, the interests of the Commonwealth may be served by allocating DLOs to represent people accused of offences or likely to be affected by inquiries, and thereby facilitating fair and effective hearings. However, the direction does not suggest that the interests of the Commonwealth should be given priority only in that sense and it seems unlikely that it was either intended to be or was likely to be construed in such a theoretical or systemic manner. It seems rather to reflect a perception that, whilst some conflicts of interest may be intolerable, DLOs should generally defend or otherwise represent people who may be accused of committing offences under Commonwealth law or of misconduct in connection with duties owed to the Commonwealth whilst, at the same time, continuing to accept an overriding duty not to provide advice that may be contrary to the Commonwealth's interests. Such an approach is entirely incompatible with what Street CJ described as the "paramount" duty which a legal practitioner owes to his or her client.

80. A further direction was given by Commodore Smith on 16 July 2003, requiring the following "important" factors to be taken into account when approving a legal officer to represent an "affected person" at a board of inquiry:

(a) the interests of the Service;

(b) the interests of the affected person and

(c) the availability of the legal officer.

He added that the most important factor was the interests of the Service and set out a number of criteria by which this might be assessed.

81. Mr Purnell was also critical of this direction but the evidence does not establish that the approach required for the allocation of DLOs has had any substantial impact upon the independence of those so allocated. In any event, the directive was issued well after the documents in question were prepared.

82. Mr Crowe argued that, even if DLOs did not enjoy professional independence whilst acting for members of the ADF, there was no reason to suppose that they lacked independence in the provision of advice to the Commonwealth or the other defendants when no similar conflict of interest existed. However, independence is not assured by the mere absence of conflicting duties to an employer and a client. On the contrary, as Brennan J observed in Waterford v The Commonwealth, an overriding loyalty to an employer may tend to undermine the independence necessary to ensure due compliance with professional standards and duties.

83. Viewed overall, I think that the evidence to which I have referred does suggest a culture within which there may be scant recognition of the need for independence. Whatever the general validity of the aphorism that one swallow does not make a summer, it is obviously true that evidence of a few incidents does not, of itself, establish either a widespread pattern of conduct or the nature of the legal culture in which they occurred. It is also true that a genuine lawyer/client relationship may exist between an employer and its employed lawyers notwithstanding the fact that one or more have failed to maintain the confidentiality of certain communications or that their behaviour may have otherwise involved breaches of legal or ethical obligations. Furthermore, the mere existence of a power to order a lawyer to breach the confidentiality of a fellow employee or some other third party may not necessarily exclude the possibility of a genuine lawyer/client relationship between that lawyer and the employer. Indeed, even the existence of a power to give orders directly impinging upon independence in the provision of legal advice may not necessarily preclude the existence of such a relationship.

84. The decisive question is whether, as a matter of fact, the relationship between the lawyers and their employer involved professional relationships which secured to the advice sought or conveyed by the relevant documents an independent character notwithstanding the employment. That is a question that may not be adequately answered merely by reference to a few instances in which employed lawyers acted improperly but, on the other hand, cannot be answered merely by reference to defensive or aspirational statements made, however sincerely, on behalf of the employer. It requires due consideration of all of the evidence including that relating to such factors as the employment structure and chain of command insofar as those factors may impinge upon the independence of employed lawyers, directions in fact given by superior officers and attitudes and occurrences capable of casting light on the true nature of the relationships in question.

85. Whilst maintaining that the presumption of privilege had not been displaced, Mr Crowe submitted that, if I were left in any doubt about its application to any of the documents, I should inspect them. I proceeded to do so. The inspection did not provide any further support for the claimed privilege.

86. In at least one instance the claim was clearly misconceived. A schedule accompanying the documents, though not annexed to any affidavit, suggested that a minute from the Chief of the Air Force to the Minister for Defence seeking public release of the Report of the Board of Inquiry was privileged, because it was a "high level communication" that "extracts" legal advice. It is, of course, axiomatic that privilege does not attach to a document merely because of the perceived importance of the author and/or recipient. The document does refer to relevant regulations and cites a decision of the High Court of Australia concerning statutory construction but the schedule containing the assertions did not form part of the evidence actually adduced and the affidavits did not contain any suggestion that anything in the minute had been extracted from any other privileged document. The minute was clearly not a document made for the purpose of obtaining legal advice from a legal practitioner or the provision of advice from such a practitioner. Nor was it a document which came into existence for "the dominant purpose . . . of litigation or in anticipation thereof" as suggested in one of the affidavits. A claim for public interest immunity was also foreshadowed in the schedule but the affidavits disclosed no basis for such a claim and it was not raised in argument.

87. The documents otherwise cast little light on the relevant issues. One opinion by Colonel Harvey was prefaced by the phrase "If our aim is to get rid of Vance as soon as possible . . .", a statement no more suggestive of independence than of objectivity, but the documents generally offered little indication of whether or not the lawyers in question had acted with due independence. Whilst there may well be cases in which the trial judge can resolve any doubts about privilege by inspecting the documents in question, this was not such a case. The case fell to be determined substantially by reference to the factors to which I have previously referred, such as the absence of practising certificates, the structure of the organisation, the nature of the chain of command and its potential impact upon the independence of subordinate legal officers, the nature of orders and directions previously given, and attitudes and occurrences said to cast doubt on whether the lawyers had the necessary independence to enable their relationship with their employer to be properly characterised as one of legal practitioner and client and, as a consequence, to give rise to legal professional privilege.

88. In all the circumstances, I am satisfied that any presumption in favour of privilege attaching to documents sent to or from military DLOs has been amply displaced and that the defendants have failed to discharge the legal onus of proof resting on them in relation to this issue.

Civilian DLOs

89. Mr Crowe submitted that, since Mr Benson was employed under the Public Service Act 1999 (Cth), the arguments based upon the perceived susceptibility to command would not apply to him and that his position had been more analogous to that of a legal officer in the Attorney-General's Department whose position was considered by the High Court in Waterford v The Commonwealth. It is true that Mr Benson would not have been amenable to prosecution under the Discipline Act for disobedience to superior orders. However, he would not have enjoyed a right to practise pursuant to s 55Q of the Judiciary Act and apparently had no practising certificate. Since he was not a "member" of the ADF, he would not even have been entitled to the protection of s 123(1) of the Defence Act. I am satisfied that in these circumstances it would be inappropriate to presume that, as a civilian DLO, he would have acted with the necessary independence and that any evidentiary onus that may have been cast upon the plaintiff by reason of the affidavits of discovery had been discharged. The defendants did not discharge the legal onus of establishing circumstances giving rise to a valid claim of privilege in respect of the communications with him.

Reserve Officers

90. Reserve officers are in a somewhat different position. Whilst acknowledging that such officers usually hold practising certificates, Mr Purnell argued that they were not immune from the statutory obligation of obedience to orders or from a military culture. In support of this submission, he referred to evidence concerning the conduct of Mr Hilton SC and Dr Renwick, who were both in private practice at the Sydney Bar and who were briefed to carry out what they later described as an "independent" review of the inquiry. The plaintiff claimed that he had been invited to participate in an interview with Mr Hilton, and that he had been told that he need not bring a lawyer, that the interview would be tape recorded and that he would be given copies of the tapes. The plaintiff had not given evidence before the Board of Inquiry. He claimed that the interview developed into an aggressive interrogation and that when, in 1998, he sought to obtain from the Commonwealth the promised copies of the tapes of interviews, he was told that the Commonwealth would not provide them to him and, later in 2002, that they had been destroyed. Mr Hilton and Dr Renwick reported to the ADF that the inquiry had been properly conducted and were briefed to a draft termination notice to end the plaintiff's military career. None of these claims were disputed by the defendants, although the Commonwealth submitted that certain parts of them were irrelevant.

91. I must again stress that neither officer was called to give evidence and I did not have the benefit of any denial or explanation from them concerning these allegations. But even if I were to accept them at face value and accept that the conduct described by the plaintiff was contrary to accepted standards of professional conduct, that would not defeat the defendant's claim of privilege.

92. The real difficulty with this aspect of the plaintiff's case is that evidence of a perceived conflict of interest and/or of improper conduct does not, of itself, demonstrate that in providing subsequent advice to the ADF, the officers in question had lacked independence. There is no axiom of human behaviour that would justify a conclusion that any unethical conduct must be attributable to the malign influence of an employer.

93. I accept Mr Crowe's submission that the evidence does not provide any basis for displacing the presumption as to the validity of the claim for privilege in relation to communications with Reserve officers for the purposes of obtaining legal advice. The provisions of the Discipline Act imposing criminal sanctions for disobedience to superior orders do apply to a Reserve officer who is rendering continuous full-time service or who is on duty or in uniform but, whilst this is a potentially significant factor, there are countervailing considerations. The officers in question presumably held practising certificates and their duties would have required them to have been involved in the ADF culture on only a part-time basis. Furthermore, they maintained practices at the private bar and were apparently retained to advise as counsel. In these circumstances and in the absence of any real evidence to the contrary I think that the requisite independence should be presumed.

94. In the light of these conclusions, I intend to order that the defendants produce to the plaintiff for inspection and copying all of the so called "DLO documents" and those which I have mentioned should be treated as falling into that category but not the so-called "Hilton documents".

95. I grant the parties liberty to apply on short notice in relation to any issues regarding the scope of this order.

96. I will also hear counsel as to costs.

I certify that the preceding ninety-six (96) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Crispin.

Associate:

Date: 2 September 2004

Counsel for the plaintiff: Mr F J Purnell SC, Mr C Erskine, and Mr Clarke

Solicitor for the plaintiff: Maliganis Edwards Johnson

Counsel for the defendants: Mr R Crowe SC

Solicitor for the defendants: The Australian Government Solicitor

Date of hearing: 6, 7 November 2003, 17, 18 December 2003

Date judgment reserved: 7 May 2004

Date of judgment: 2 September 2004