Ceremonial - Announcement of Appointment of Senior Counsel

[2009] HCATrans 3

[2009] HCATrans 003

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
KIRBY J
HAYNE J
HEYDON J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON MONDAY, 2 FEBRUARY 2009, AT 3.34 PM

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

Mr D.F. Jackson AM QC

Mr B. Salmon QC

Mr T. Bathurst QC, President of the Australian Bar Association

Mr N. Young QC

Mr J. Digby QC, Chairman of the Victorian Bar

Mr R. Meadows QC

Ms A. Katzmann SC, President of the New South Wales Bar Association

Mr S. Estcourt QC

Mr M. Stewart SC, President of the Queensland Bar Association

Mr M. Blue QC, President of the South Australian Bar Association

Mr C. Colvin SC, President of the Western Australia Bar Association

Ms P. Tate SC, Solicitor‑General for the State of Victoria

Mr M. Grant QC, representing the President of the Northern Territory Bar Association

Mr. R. Lilley SC

Mr S. Pilkinton, President of the Australian Capital Territory Bar Association

Mr M. Plunkett

Ms C. Fourfouris-Mack

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

MR PILKINTON:   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:

She is:

Harriet Louise Donohoe who ranks in seniority after Christopher Michael Erskine

FRENCH CJ:   Thank you, Mr Pilkinton.  Ms Katzmann.

MS KATZMANN:   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 New South Wales.

They are:

Christopher John Bruce who appears in the Bar list next after Alec Leopold

Mark Levinge Brabazon who appears in the Bar list next after Christopher John Bruce

Michael James Windsor who appears in the Bar list next after Mark Levinge Brabazon

Christopher Phillip Hoy who appears in the Bar list next after Michael James Windsor

Lachlan Vincent Gyles who appears in the Bar list next after Christopher Phillip Hoy

Julia Rosalyn Baird who appears in the Bar list next after Lachlan Vincent Gyles

Gregory Andrew Sirtes who appears in the Bar list next after Julia Rosalyn Baird

John Allaster Halley who appears in the Bar list next after Gregory Andrew Sirtes

David Bradridge Studdy who appears in the Bar list next after John Allaster Halley

Arthur Raymond Moses who appears in the Bar list next after David Bradridge Studdy

Anthony James Payne who appears in the Bar list next after Arthur Raymond Moses

Jeremy Stoljar who appears in the Bar list next after Anthony James Payne

Donna Mary Lisa Woodburne who appears in the Bar list next after Jeremy Stoljar

Stephen Bruce Lloyd who appears in the Bar list next after Donna Mary Lisa Woodburne

FRENCH CJ:   Thank you, Ms Katzmann.  Mr Michael Grant.

MR GRANT:   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 Northern Territory.

She is:

Judith Clair Kelly who ranks in seniority after Michael Patrick Grant

FRENCH CJ:   Thank you, Mr Grant.  Mr Stewart.

MR STEWART:   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:

Rodney Stephen Litster who ranks in seniority after Declan Anthony Kelly

Michael James Copley who ranks in seniority after Jeffrey Robert Hunter

Geoffrey Warren Diehm who ranks in seniority after Michael James Copley

Martin Jasper Burns who ranks in seniority after Geoffrey Warren Diehm

Darryl Cameron Rangiah who ranks in seniority after Martin Jasper Burns

FRENCH CJ:   Thank you, Mr Stewart.  Mr Digby.

MR DIGBY:   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:

William Ross Middleton who ranks in seniority after Mark Kranz Moshinsky

Philip Anthony Jewell who ranks in seniority after William Ross Middleton

John Paul Dickinson who ranks in seniority after Philip Anthony Jewell

Craig Warwick Harrison who ranks in seniority after John Paul Dickinson

Joshua Douglas Wilson who ranks in seniority after Craig Warwick Harrison

Douglas Andrew Trapnell who ranks in seniority after Joshua Douglas Wilson

Maryanne Beatrice Loughnan who ranks in seniority after Douglas Andrew Trapnell

Michael Harry Tinney who ranks in seniority after Maryanne Beatrice Loughnan

Caroline Majella Kenny who ranks in seniority after Michael Harry Tinney

Adrian James Ryan who ranks in seniority after Caroline Majella Kenny

Michael Glennon O’Connell who ranks in seniority after Adrian James Ryan

Samuel Richard Horgan who ranks in seniority after Michael Glennon O’Connell

FRENCH CJ:   Thank you, Mr Digby.  Mr Colvin.

MR COLVIN:   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:

Laurence Mark Levy who ranks in seniority after Robert MacKenzie Mitchell

Simon Rutherford Moncrieff who ranks in seniority after Laurence Mark Levy

FRENCH CJ:   Thank you, Mr Colvin.  Mr Blue.

MR BLUE:   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:

Neville Grant Rochow who ranks in seniority after Simon Patrick O’Sullivan

Ian Carlyle Robertson who ranks in seniority after Neville Grant Rochow

FRENCH CJ:   Thank you, Mr Blue.  Mr Jackson, do you move?  Mr Salmon, do you move?  Mr Bathurst, do you move?  Mr Young, do you move?  Mr Digby, do you move?  Mr Meadows, do you move?  Ms Katzmann, do you move?  Mr Estcourt, do you move?  Mr Stewart, do you move?  Mr Blue, do you move?  Mr Colvin, do you move?  Ms Tate, do you move?  Mr Grant, do you move?

On behalf of the members of the Court, I congratulate the newly appointed Senior Counsel.

The office of Queen’s Counsel and its successor, the office of Senior Counsel, have their roots deep in the history of English law, which is part of Australia’s cultural heritage.  That depth can evoke a comforting sense of longevity.  So it was and so it shall continue.  Yet the experience of the ages is that no human institution has a right to immortality or immunity from change.  It is necessary therefore to be conscious of the history of the office and the values which sustain it, and to ensure that those values, and the way in which they serve the public interest, are maintained and publicly affirmed.

The emergence of King’s Counsel as a public office was attributed by Holdsworth to the inability of those appointed as King’s Attorneys and King’s Solicitors, offices which had existed since the 13th century, to cope with their workload[1].  Initially persons were informally appointed by law officers of the Crown as King’s Counsel to assist with that work.  They ranked next after Serjeants‑at‑Law.  In 1604 however, 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 Councillor at Law or one of our Counsel learned in law”.  The practice of appointing King’s and Queen’s Counsel by Letters Patent from the Crown developed from that precedent[2].

[1] Holdsworth, A History of English Law, 2nd ed (1937), vol 6, at 467-468.

[2] Ibid at 474.

King’s and Queen’s Counsel eventually supplanted the Serjeants‑at‑Law who had been the senior office-holders of the profession for hundreds of years at the time of Bacon’s appointment. Alexander Pulling, a Serjeant‑at‑Law in the late 19th century, when that institution had all but vanished before the relentless tide of silk gowns, wrote archly of Bacon’s elevation by Royal Letters Patent 280 years earlier[3]

[3] Pulling, The Order of the Coif (1884) at 185.

“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.”

The “anomaly” to which Pulling referred engendered a powerful legal institution.  Importantly, it broadened from an institution concerned only with the provision of legal advice to the Crown although, consistently with the untidy realities of history, this may have occurred because law officers did not want to take advice from persons, some of whom had received their appointments as acts of favour rather than on account of their merit[4].

[4] Holdsworth, at 476 citing Roger North – Lives of the Norths iii r 38.

In Australia, appointments to the office of Queen’s Counsel were traditionally made by Government on the advice of the Chief Justice of the State or Territory concerned, and generally according to criteria related to professional eminence and excellence, 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.  The Commonwealth maintains the title Queen’s Counsel and the appointment is made by the Governor-General.

In England there have been changes also.  The appointment of Queen’s Counsel was suspended in 2003.  There was pressure for its abolition.  In the event the process leading to appointment was reformed.  Selection of Queen’s Counsel is now in the hands of an independent panel and is based upon references, self‑assessment and a face‑to‑face interview with the candidates.  Appointment is still by the issue of Letters Patent by the Queen who receives the list of successful applicants from the Secretary of State for Constitutional Affairs. 

The changes in the nature of the office in Australia and the new procedures for appointment in England tell of an institution subject to changing circumstances and expectations of contemporary societies and adapting to them.

There are, however, certain fundamentals of the office which have been reflected in the selection criteria adopted around Australia.  Essential attributes are recognised professional excellence, integrity and independence.  Men and women who bear those attributes have much to offer Australia, the Rule of Law and the legal profession.  They are attributes which 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 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 role.

Before the Court rises there is one further thing I wish to say.  This is the last occasion on which Justice Michael Kirby will sit with us as a member of this Court.  He was appointed to this Court in 1996.  Before that appointment he had served for 12 years as President of the Court of Appeal of New South Wales following a brief term as a Judge of the Federal Court of Australia.  His great service to the judiciary and to the wider community is a matter of public record.  I thank him for that service and wish him and his partner, Johan van Vloten, well for the future.

The Court will now adjourn to 10.15 am tomorrow.

AT 3.49 PM THE COURT ADJOURNED