In November 2005, whether a practising certificate is required, was explored by Commonwealth of Australia & Anor v Russell Vance. In this case the in-house counsel was engaged as a legal officer with the Australian Defence Force in the position of Departmental Legal Officer (DLO). The plaintiff sought damages from unlawful termination from the Defence Force and applied for an order requiring the defendants to provide a number of documents for inspection. The application was proposed on the ground that the
documents were the subject of a claim of legal professional privilege.
The primary issue in the application was whether communications from DLOs which contained or purported to contain or relate to the provision of legal advice could be the subject of a claim for legal professional privilege. This involved an examination of the position and function of DLOs and in particular, whether they were lawyers.
The application for privilege was considered at common law and not under the provisions of the Evidence Act 1995 (ACT). His Honour Crispin J, examined Waterford v Commonwealth, which he believed to be most relevant to the proceedings. Waterford stated that the in-house solicitor should hold a current practicing certificate or be otherwise entitled to practice in the relevant jurisdiction. In Waterford, the person who provided the legal advice were ‘lawyers,’ that is, not only were they qualified to practise law in terms of academic prerequisites, but each held a relevant practising certificate.
The evidence then stated that while all permanent military and civilian DLOs were legally qualified and admitted to practice, the military DLOs were not required to hold practising certificates. The plaintiff argued that the defendants’ claim for privilege must fail, because the communications the subject of the claim for privilege were not from persons qualified to practise law and they did not hold relevant practising certificates.
Having considered both Waterford and Attorney General (NT) v Kearney (1985) 158 CLR 500 (both of which maintained the importance of practising certificates) his Honour held that it is ‘difficult to see how these requirements could be regarded as having been satisfied by legal advisors who did not hold practising certificates or, perhaps, worked under the supervision of others with practising certificates, unless they enjoyed a statutory right to practice such as that provided by … the Judiciary Act,’ (which the DLOs did not).
Consequently, his Honour concluded that legal professional privilege will arise to “protect the confidentiality of communications
with a legal advisor only when he or she has an actual right to practice and not merely when he or she has… joined the ADF, even if permitted to carry out ADF legal duties without holding a practicing certificate.” Consequently his Honour was satisfied that any presumption in favour of privilege attaching to the documents in issue had been amply displaced.
The appeal
The Commonwealth sought leave to appeal on the basis that the trial judge had erred by holding that a claim for legal professional privilege could only be brought where a document was authored by a person holding a current practising certificate. The court found that from a consideration of those cases it was possible to conclude that his Honour the trial judge should have applied the provisions on client legal privilege of the Evidence Act 1995 (ACT).
The Court then held that where client privilege may be claimed over a document by an in house lawyer, the question is whether the document would meet the statutory test of being a confidential document, which includes being under an express or implied obligation not to disclose its contents, whether or not that obligation arises under law. This may be more easily answered where the lawyer holds a practising certificate. However, holding a practising certificate is not the definitive test, as long as the statutory requirements are met.
The proceedings were accordingly remitted to the trial judge to consider the question of privilege in accordance with the courts reasons. Therefore in jurisdictions where the Evidence Act applies, then privilege will apply to communications sought to be adduced
in evidence if those communications are to or from a lawyer regardless of whether that lawyer holds a current practising certificate so long as the person is acting in their capacity as a lawyer and for a privileged purpose.