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Rising Sun*
12-14-2008, 08:06 AM
There are at least two sides to every story, but there is a distressingly familiar ring to this one of military and civilian bureaucrats digging deep into the taxpayers' pockets to justify their own incompetent and vincdictive behaviour.


The $12m trial that should never have happened

Paul Daley
December 14, 2008

THIS is a story of how a country founded on justice and egalitarianism tried to destroy a good man whose ambition was to serve it. The country is Australia. The man is Russell Vance.

Today Vance — depressed and worn down — is testimony to the bastardry of the Australian Defence Force legal branch that has relentlessly tried to destroy him.

The cost of pursuing Vance, a former acting commander of the RAAF base at Butterworth, Malaysia, through a military board of inquiry and the civilian courts is at least $12 million.

At 16, Vance, the son of a navy officer, joined the RAAF as an apprentice scientific instrument maker. Possessing a sparkling intelligence, he was named apprentice of the year before later becoming a commissioned officer. He was, by his own admission, a "tough bastard" and a stickler for military discipline — a characteristic he retains despite a lost marriage, a forgone career and damaged health.

In 1993, he was posted as second in command to help "sort out" Butterworth — a base with a reputation as a holiday camp. He soon became acting commanding officer. His abrasive style grated with the men. Their wives complained to a visiting social worker. The social worker wrote a report and RAAF command recommended Vance be "counselled" — a military euphemism for mild admonishment.

Command refused to show Vance the report. Vance applied for it under freedom of information laws. The RAAF responded by convening a board of inquiry. It was a quasi-legal star chamber — a kangaroo court that sat for two years on two continents and cost well over $6 million. Each government-appointed lawyer was paid $1350 a day tax-free, plus expenses, over 186 sitting days.

The inquiry was scrapped when Vance had a breakdown under the pressure. He was deemed psychologically unfit to testify. It was hastily and vindictively reconvened, however, when he was found to be working part-time as part of his medical rehabilitation.

The inquiry benignly criticised Vance's management style. Then RAAF chief Errol McCormack sacked him. Represented pro bono by solicitor John Little, Vance began Federal Court proceedings for reinstatement. The RAAF withdrew his dismissal and sacked him again on the basis of his depression.

The case has rolled on through a series of hearings and appeals.

Little says: "On the basis of what's happened to Russ, you wouldn't let your dog join the Defence Force."

On the eve of the last federal election, shadow defence minister Joel Fitzgibbon told me, in relation to Vance: "Defence really ought to be acting as a model litigant … (It) ought not be spending millions of taxpayer dollars on unnecessary litigation."

Well, Mr Fitzgibbon, it's time to come good, because Defence has proved to be anything but a model litigant. Last month, the Federal Attorney-General's Department told Vance it was so concerned about his case it had launched an investigation into whether Defence had conducted itself appropriately.

The department found Defence had breached its obligation to act as a model litigant "by causing unnecessary delay in the handling of the litigation arising from a failure to undertake all reasonable and necessary inquiries" relating to the discovery of relevant documents.

This was a reference to a judgement by ACT Supreme Court justice Ken Crispin in September 2007 that the Commonwealth should not defend Vance's unfair sacking case "and that the Commonwealth's defence in responding to those allegations be struck out".

Judge Crispin delivered a scathing indictment of Defence's conduct — especially its non-compliance with a discovery order. Three years after the order was made, he noted, Defence told Vance's lawyer 41 more boxes of documents had been "discovered". Surprise, surprise! "(Defence) have now been in breach of the order … for more than five years," Judge Crispin said.

Meanwhile, Jackie Kelly, a former federal Liberal MP and military lawyer who was involved in the early stages of the Vance inquiry, publicly urged former defence minister Brendan Nelson to settle and stop wasting taxpayers' money.

Today, Mr Fitzgibbon is Defence Minister. So minister, it's time to stop this vindictive folly before it returns to court, yet again, this week. http://www.theage.com.au/opinion/the-12m-trial-that-should-never-have-happened-20081213-6xw0.html?page=-1

We should all treat journalists' reports with due scepticism. Judges, such as Crispin in the following quote, are scathing only when it is richly deserved.


Three years after the order for discovery had been made the department unearthed a further 41 boxes of documents.

This, Crispin said, was a stark demonstration of the inadequacy of earlier searches, which should have galvanised the department into the “most rigorous pursuit of every reasonable avenue of inquiry”.

Richard Miller, DoD’s director of litigation, made the following rueful concessions during cross-examination by Francis Purnell SC:

Purnell: Now, its your responsibility when you swear an affidavit of discovery to have caused due search and inquiry to be made. You understand that, don’t you?

Miller: Yes.

Purnell: You’ve used that verbal formula on several occasions in these affidavits?

Miller: Yes…

Purnell: So, when you swore in this affidavit of 8 June this year that you’d conducted due search and inquiry, you’d done nothing of the kind had you, you hadn’t done that?

Miller: Well, to the extent that I was relying upon others doing through it AGS.

Purnell: You had not done the …

Miller: I had not done it.

Purnell: You had not done the inquiries. You hadn’t asked anybody else to do it and you had not been informed that it had been done?

Miller: Correct.

Purnell: So, how were you able to swear that you’d conducted due search and inquiry in your affidavit of 8 June?

Miller: Well, plainly I haven’t been entitled to make that statement.

Purnell: I’m sorry?

Miller: Plainly I haven’t been entitled to make that statement.

The Crispy Cream exploded:

“It is inescapable that the defendants have already had almost five-and-a-half years to find the documents relevant to the retirement of a single officer. An earlier generation of military officers waged the First World War in substantially less time.

“No plaintiff should be forced to endure such an extraordinary delay in the litigation of his or her claim due to the sustained default of a defendant and even Mr [Robert] Crowe’s eloquent submissions [for the Commonwealth] have left me quite unconvinced that there has been any real justification for it.” http://www.justinian.com.au/1080-article