Vance v Air Marshall McCormack in his capacity as Chief of Air Force & Anor [2004] ACTSC 85 (8 September 2004)

Last Updated: 17 September 2004

RUSSELL VANCE v AIR MARSHALL ERROL JOHN McCORMACK IN HIS CAPACITY AS CHIEF OF AIR FORCE and THE COMMONWEALTH [2004] ACTSC 85 (8 September 2004)

EX TEMPORE JUDGMENT

No. SC 317 of 2001

Judge: Crispin J

Supreme Court of the ACT

Date: 8 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: 8 September 2004

Place: Canberra

THE COURT ORDERS:

1. that paragraphs 90 and 91 be recalled;

2. the heading immediately above paragraph 90 be amended by changing the letters "DLOs" to the word "officers";

3. paragraph 90 be amended to read as follows:

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.

4. paragraph 91 be amended to read:

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.

5. paragraph 92 remain unaltered;

6. paragraph 93 be amended by changing the letters "DLOs" to the word "officers".

1. On 2 September 2004, I gave judgment on an interlocutory motion by the plaintiff seeking access to certain documents in the possession of the Commonwealth. I ordered that the defendants produce to the plaintiff for inspection and copying, a large number of documents, but rejected a claim for access to documents that had been brought into existence for the purpose of seeking advice from two reserve officers, Mr Hilton SC, and Dr Renwick, who were then in private practice at the Sydney Bar.

2. In the course of rejecting the claim for access to those documents and upholding the claim for privilege, I made certain observations concerning the allegations that had been made against those officers and concluded that, even if those allegations had been sustained, the claimed privilege was still available.

3. Mr Hilton and Dr Renwick have now sought to have parts of the judgment recalled on the basis that there was some inaccuracy in the evidence before me and that, as a consequence, their reputations may have been adversely and unfairly affected by those observations.

4. I should mention that the allegations made by the plaintiff had been extant for a long period prior to judgment and that the Commonwealth had not filed material seeking to contradict or deny them. Furthermore, this was not a royal commission or some similar proceeding, but litigation inter partes and it is not, of course, customary for judges hearing proceedings, whether interlocutory or substantive, to adjourn proceedings in order to give persons named in the course of evidence an opportunity to be heard when they are not parties.

5. Furthermore, whatever may have been the view of counsel for the Commonwealth or even my own view as to the relevance of the allegations in question, they were relied upon by the plaintiff as the factual basis for arguments that the documents were not privileged. In any judgment, it is necessary to refer to any claim that may have been rejected and to explain both the suggested basis for it and the reasons for rejecting it. One cannot simply ignore undisputed evidence on the basis that people who are not parties to the litigation may wish to challenge its accuracy.

6. I did give some thought as to whether it may have been possible to draft a judgment which did not refer to the names of the people concerned, but that would have been somewhat confusing because, throughout the case, the report of review which had featured prominently in submissions had been referred to as the "Hilton Report" and/or the "Hilton and Renwick Report", and one of the four categories of disputed documents had been referred to throughout as the "Hilton documents".

7. In the circumstances, I mentioned in the judgment that neither Mr Hilton or Dr Renwick had been called to give evidence, and more importantly, chose to make no finding that the alleged conduct had actually occurred; finding only that, at face value, the conduct described appeared to have been contrary to accepted standards. By those qualifications, I intended to make it clear that neither had had the opportunity to be heard in relation to the allegations and that I was unwilling to make an actual finding that they had acted in the manner alleged, but that insofar as the issues raised between the parties were concerned, I was obliged to take the undisputed allegations at face value.

8. In my opinion, save in exceptional circumstances, it is inappropriate to permit any further party to be joined in proceedings after judgment has been given, even on an interlocutory motion, for the purpose of reopening the proceedings and adducing evidence to challenge the findings made and the reasons for judgment, and I would normally be most reluctant to do so when the orders do not bind them or affect their legal rights. Such an approach could not only cause further protracted and unnecessary litigation, but give rise to unintended consequences by, for example, casting doubt on the credibility of previously unchallenged evidence.

9. However, it is now clear that there was an error in a statement in an affidavit filed in the proceedings, suggesting that at the time of an interview between the plaintiff on the one hand, and Mr Hilton and Dr Renwick on the other, Dr Renwick at least had been briefed to settle a notice terminating the plaintiff's employment.

10. I am now told that it is now common ground that the brief had actually been delivered to Dr Renwick only some months after the interview in question. Accordingly, the references that I made in my judgment to it being generally improper for barristers briefed by one party to interview an opposing party in the absence of his or her legal advisers were not only irrelevant but potentially liable to mislead someone into believing that that was what occurred. That was, in fact, my understanding at the time that I included those references in the judgment. It now being common ground that that was incorrect, it is appropriate that the judgment be recalled to a limited extent.

11. I have had the benefit of submissions by counsel for all the parties and to some degree the changes that I am about to make are the subject of agreement, though some statements remain in dispute between the parties.

12. Nonetheless, in the circumstances, I order that paragraphs 90 and 91 be recalled.

13. The heading immediately above paragraph 90 will be amended by changing the letters "DLOs" to the word "officers".

14. Paragraph 90 will now read as follows:

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.

15. Paragraph 91 will now read:

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.

16. Paragraph 92 will remain unaltered. There are, however, two minor changes to paragraph 93, in that in the third and the fifth lines, the letters "DLOs" are to be changed to the word "officers".

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Crispin.

Associate:

Date: 10 September 2004

Counsel for the applicants: Mr T Robertson SC

Solicitor for the applicants: Minter Ellison

Counsel for the first respondent (plaintiff): Mr F J Purnell SC, Mr C Erskine and Mr Clarke

Solicitor for the first respondent (plaintiff): Maliganis Edwards Johnson

Counsel for the second respondents (defendants):Mr R Crowe SC

Solicitor for the second respondents (defendants):The Australian Government Solicitor

Date of hearing: 8 September 2004

Date of judgment: 8 September 2004