Upcoming Mallesons seminarsThe ACT Court of Appeal’s decision in Vance v McCormack case yesterday provides some comfort for in-house counsel in terms of legal privilege for their advice. Although the Court of Appeal decision is not binding in common law, the Court appeared to favour the view that under the common law, the holding of a practising certificate is not definitive regarding privilege.
However, until there is an authoritative decision whether practising certificates are required under the common law, it would be prudent for in-house lawyers to hold a practising certificate.
Companies and government departments would also be best to ensure that their in-house lawyers operate within a structure and under conditions which are conducive to them acting as independent professionals.
Background
In a previous decision in the case, Crispin J held that for legal professional privilege to attach to communications by in-house legal counsel with their employer, the lawyer had to have:
- a current practising certificate, and
- sufficient independence from their corporate or government “client”- in spite of their employment relationship.
Crispin J's decision caused enormous concern among in-house lawyers who did not have a practising certificate, because, if correct, it meant that their legal advice was not privileged.
The ACT Court of Appeal decision
- Crispin J erred in finding that legal professional privilege issues in the case were governed by the common law rather than the Evidence Act 1995 (Cth).
- For privilege to attract, under the Evidence Act, there is no absolute requirement for an in-house lawyer to have a practising certificate as well as being admitted to practise law.
- Under the Evidence Act, holding a practising certificate is an important consideration, but is not definitive for privilege to attach.
- Crispin J's finding that Defence Force legal officers did not operate as independent professionals because they worked in a culture of subservience was based in part on evidence given before a Senate Committee, and this evidence was received erroneously in breach of section 16 of the Parliamentary Privileges Act 1987 (Cth).
The Court of Appeal returned the matter to Crispin J to make a fresh decision based on evidence other than the statements made before the Senate Committee and based on the principle that, under the Evidence Act, the absence of a practising certificate was a relevant consideration but not determinative.
Unresolved issues
The Court of Appeal does not fully resolve the relevant issues.
- The case is authority only for privilege under the Evidence Acts of the Commonwealth, New South Wales and Tasmania, which apply only to the adducing of evidence in hearings before a Federal, NSW, ACT or Tasmanian court. The case is not binding about privilege at common law, which applies more generally.
- The Court of Appeal did not say that Crispin J's comments about the importance of "culture" for the purposes of privilege were incorrect. It is open to Crispin J to make the same decision about culture as long as he does not rely on the statements made before the Senate Committee.
Full text of the decision: http://www.courts.act.gov.au/supreme/judgmentsca/vance1.htm
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