Appointment of Senior Counsel [2011] HCATrans 8

[2011] HCATrans 8

[2011] HCATrans 008

H I G H   C O U R T   O F   A U S T R A L I A

CEREMONIAL SITTING

ON THE OCCASION

OF

THE ANNOUNCEMENT OF APPOINTMENT

OF

SENIOR COUNSEL

Coram:          FRENCH CJ

GUMMOW J
HEYDON J
CRENNAN J
KIEFEL J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON MONDAY, 31 JANUARY 2011, AT 3.31 PM

The following Queen’s Counsel, Senior Counsel and counsel were seated at the Bar table:

Mr D.F. Jackson AM QC

Mr T. Bathurst QC, President of the New South Wales Bar Association

Mr J. Maconachie QC

Mr W. Houghton QC

Mr P. Greenwood SC

Mr M. Colbran QC

Mr H. Burmester QC

Mr R. Douglas SC, President of the Bar Association of Queensland

Mr S. Estcourt QC

Mr S. Gageler SC, Solicitor‑General for the Commonwealth of Australia

Mr P. Riordan SC, President of the Australian Bar Association

Mr G. Donaldson SC, President of the Western Australian Bar Association

Mr M. Grant QC, Solicitor‑General for the Northern Territory

Mr T. Stanley QC, Representing the South Australia Bar Association

Mr M. Moshinsky SC, Chairman of the Victorian Bar Council

Mr A. Horneman-Wren SC

Mr P. Walker, President of the Australian Capital Territory Bar Association

FRENCH CJ:   Mr Solicitor‑General of the Commonwealth.

MR GAGELER:   May it please the Court, I inform the Court that George Witynski has been appointed as Senior Counsel for the Commonwealth of Australia.  He ranks in seniority after Ian William Nash.

FRENCH CJ:   Mr Walker, President of the Australian Capital Territory Bar Association.

MR WALKER:   May it please the Court, I inform the Court that the following member of the Bar here present has been appointed as Senior Counsel for the Australian Capital Territory.

He is:

Gregory Alan Stretton who ranks in seniority after George Witynski

FRENCH CJ:   Mr Michael Grant, Solicitor‑General for the Northern Territory.

MR GRANT:   May it please the Court, I inform the Court that John Benjamin Lawrence of the Bar here present has been appointed as Senior Counsel in the Northern Territory.  He ranks in seniority after Nanette Rogers.

FRENCH CJ:   Mr Bathurst, President of the New South Wales Bar Association.

MR BATHURST:   May it please the Court, I inform the Court that the following members of the Bar here present have been appointed as Senior Counsel in New South Wales.

They are:

Peter Mark Morris who ranks in seniority after Dina Yehia

Anthony James Black who ranks in seniority after Peter Mark Morris

Phillip Gerard Ingram who ranks in seniority after Anthony James Black

Garry William McGrath who ranks in seniority after Phillip Gerard Ingram

Stephen Scott Hanley who ranks in seniority after Garry William McGrath

Geoffrey Thomas Johnson who ranks in seniority after Stephen Scott Hanley

Gregory Curtin who ranks in seniority after Geoffrey Thomas Johnson

Eric William Heales Wilson who ranks in seniority after Gregory Curtin

Sandra Anne Duggan who ranks in seniority after Richard Malcolm Schonell

Peter Sidney Braham who ranks in seniority after Sandra Anne Duggan

Andrew Phillip Coleman who ranks in seniority after Peter Sidney Braham

Murugan Thangaraj who ranks in seniority after Andrew Phillip Coleman

Patricia Emily McDonald who ranks in seniority after Murugan Thangaraj

Elizabeth Ann Collins who ranks in seniority after Patricia Emily McDonald

Hament Kumar Dhanji who ranks in seniority after Adam Andrew Hatcher

Gail Barton Furness who ranks in seniority after Hament Kumar Dhanji

Richard Austin Cavanagh who ranks in seniority after Gail Barton Furness

FRENCH CJ:   Mr Stanley, representing the South Australia Bar Association.

MR STANLEY:   May it please the Court, I inform the Court that the following members of the Bar here present have been appointed as Senior Counsel for the State of South Australia.

They are:

Liesl Jane Chapman who ranks in seniority after Paul Francis Muscat

Adam Patrick Kimber who ranks in seniority after Liesl Jane Chapman

FRENCH CJ:   Mr Douglas, President of the Bar Association of Queensland.

MR DOUGLAS:   May it please the Court, I inform the Court that the following members of the Bar here present have been appointed as Senior Counsel for the State of Queensland.

They are:

Peter John Roney who ranks in seniority after Alexander Adrian James Horneman‑Wren

Todd Arnold Fuller who ranks in seniority after Peter John Roney

Colin James Forrest who ranks in seniority after Todd Arnold Fuller

Carl Wayne Heaton who ranks in seniority after Colin James Forrest

Graeme Francis Crow who ranks in seniority after Carl Wayne Heaton

Kerri Anne Mellifont who ranks in seniority after Graeme Francis Crow

Kenneth Anthony Barlow who ranks in seniority after Kerri Anne Mellifont

FRENCH CJ:   Mr Moshinsky, Chairman of the Victorian Bar Council.

MR MOSHINSKY:   May it please the Court, I inform the Court that the following members of the Bar here present have been appointed as Senior Counsel for the State of Victoria.

They are:

Michael Feery Fleming who ranks in seniority after Rachel Marie Doyle

Andrew James McGregor Moulds who ranks in seniority after Michael Feery Fleming

Peter Anthony Chadwick who ranks in seniority after Andrew James McGregor Moulds

Justin Lawrence Bourke who ranks in seniority after Mark Joseph Rochford

Albert Alfred Monichino who ranks in seniority after Justin Lawrence Bourke

Edward Winslow Woodward who ranks in seniority after Albert Alfred Monichino

Warren Lloyd Friend who ranks in seniority after Edward Winslow Woodward

Samantha Lee Marks who ranks in seniority after Warren Lloyd Friend

Daryl John Williams who ranks in seniority after Samantha Lee Marks

Richard Michael Niall who ranks in seniority after Daryl John Williams

Georgina Lucy Schoff who ranks in seniority after Richard Michael Niall

Philip Howard Solomon who ranks in seniority after Georgina Lucy Schoff

Wendy Anne Harris who ranks in seniority after Philip Howard Solomon

David James Batt who ranks in seniority after Wendy Anne Harris

FRENCH CJ:   Mr Donaldson, President of the Western Australian Bar Association.

MR DONALDSON:   May it please the Court, I inform the Court that the following members of the Bar here present have been appointed as Senior Counsel for the State of Western Australia.

They are:

Selva Kanagananda Dharmananda who ranks in seniority after Stephen Michael Davies

Sam Vandongen who ranks in seniority after Selva Kanagananda Dharmananda

Peter Damien Quinlan who ranks in seniority after Sam Vandongen

May it please the Court.

FRENCH CJ:   Thank you, Mr Donaldson.  I call on the Bar generally for motions. 

In addition to the Solicitor‑General for the Commonwealth and the representatives of the Bar Associations of the States and Territories, who have announced to the Court newly appointed Senior Counsel, I acknowledge the presence at the Bar table of other Senior Counsel – Mr Jackson, Mr Maconachie, Mr Houghton, Mr Greenwood, Mr Colbran, Mr Burmester, Mr Estcourt, Mr Riordan, President of the Australian Bar Association, and Mr Horneman-Wren.  I also acknowledge the presence in Court of The Hon Justice Buchanan of the Supreme Court of Victoria and Mrs Buchanan.

On behalf of the Members of the Court I congratulate all those who have been announced today as newly appointed Senior Counsel.  You come from all parts of the nation.  Your appointments reflect the confidence of the profession and the judiciary that you are persons who have achieved professional excellence and who have the attributes of integrity and independence which mark you out as leaders in the profession.  While your appointments are honours they carry with them the responsibilities of leadership example and public service.

The Office of Senior Counsel and its predecessor, the Office of Queen’s Counsel, have their roots in the history of English law, which is part of Australia’s constitutional and legal heritage.  Despite the depth of that history, experience teaches us that no human institution is immune to change.  The transition from Queen’s Counsel to Senior Counsel exemplifies that proposition.  It is necessary, therefore, to be aware of the history of the Office which you assume and the values which sustain it through institutional change.  It is necessary also to ensure that those values and the way in which they serve the public interest are maintained and publicly affirmed.

The origins of King’s Counsel as a public office were said by Holdsworth to lie in the inability of those appointed as King’s attorneys and King’s solicitors, offices which had existed since the thirteenth century, to deal with their work load.  Initially, persons were informally appointed by law officers of the Crown as King’s Counsel to assist with that work.  However, in 1604, Sir Francis Bacon procured his own appointment as King’s Counsel Extraordinaire on the warrant of James I.  His patent recited that the King had appointed him “our Counsel at Law or one of our Counsel learned in the law”.  The practice of appointing King’s and Queen’s Counsel by letters patent from the Crown seems to have developed from that precedent.

The new Office eventually supplanted Serjeants‑at‑Law, who had been the senior office holders of the profession for centuries at the time of Bacon’s appointment.  Alexander Pulling, one of the last of them, wrote rather resentfully in the late nineteenth century of Bacon’s elevation by letters patent 280 years earlier saying:

Bacon … afforded a precedent for a system of Royal patronage and promotion at the Bar which is altogether opposed to its ancient traditions and the public interest – a system admitted to be properly described as an anomaly.

Well, the anomaly engendered a powerful legal institution.  It evolved from an institution concerned only with the provision of legal advice to the Crown, although it has been suggested that this may have occurred because law officers did not want to take advice from persons, some of whom who had received their appointments as acts of favour rather than on account of their merit.

In Australia, appointments to the Office of Queen’s Counsel were traditionally made by the Governor on the advice of the Chief Justice of the State or Territory concerned, and generally, according to criteria related to professional eminence and excellence in integrity and leadership.  In all States and Territories today the designation “Queen’s Counsel” has been replaced by that of Senior Counsel.  The Office has become an appointment made by the relevant Chief Justice acting on advice from the judiciary and the profession, or by the Head of the relevant Bar Association.

In England there have been changes also.  The process leading to appointment has been reformed and selection of Queen’s Counsel is now in the hands of an independent panel based upon references, self‑assessment and face‑to‑face interviews with the candidates.

The development in the process leading to appointment as Senior Counsel in Australia, and the procedures for appointment as Queen’s Counsel in the United Kingdom, tell of an institution subject to changing circumstances and the expectations of contemporary society and adapting to them.

The fundamentals of the Office reflected in the selection criteria adopted around Australia remain the same.  The essential attributes are recognised professional excellence, integrity and independence.  Those who bear those attributes have much to offer Australia, the rule of law and the legal profession.  They are enhanced by those who possess a broad perspective on their place in society.  One aspect of a broad perspective, which will support the acceptance and continuance of the Office, is a sense of public service which transcends self‑interest.  Another aspect is evidenced by your presence here today at the seat of the High Court in the national capital.  That is, that you see yourselves as members of a national profession, willing and able to provide high‑quality legal services, and to contribute to the rule of law throughout the Commonwealth.  Your attendance today can and should be taken as marking a public commitment to the highest ideals of the law in the service of the administration of justice through the legal services you provide and the contribution you make to improving the quality of justice throughout Australia.

I thank you for your attendance and on behalf of the Members of the Court congratulate you again on your appointments and wish you well in your new roles.

The Court will now adjourn until 10.15 tomorrow morning.

AT 3.46 PM THE COURT ADJOURNED