Ceremonial Sitting on the Occasion of the Announcement of Appointment of Senior Counsel

[2022] HCATrans 164

[2022] HCATrans 164

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:   KIEFEL CJ

GAGELER J
KEANE J
GORDON J
EDELMAN J
STEWARD J
GLEESON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON MONDAY, 10 OCTOBER 2022, AT 3.30 PM

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

Ms Linda Mason SC, for the Tasmanian Bar Association

Ms Gabrielle Bashir SC, President of the New South Wales Bar Association

Mr Ian Robertson SC, for the Bar Association of South Australia

Mr Martin Cuerden SC, President of the Western Australian Bar Association

Mr Andrew Muller, for the President of the Australian Capital Territory Bar Association

Ms Roisin Annesley KC, President of the Victorian Bar

Mr Tom Sullivan KC, President of the Bar Association of Queensland

Members of the Judiciary seated within the Court:

The Honourable Chief Justice Peter Quinlan, Chief Justice of the Supreme Court of Western Australia

The Honourable Chief Justice William Alstergren, Chief Justice of the Federal Circuit and Family Court of Australia

KIEFEL CJ:   Ms Mason SC, for the Tasmanian Bar Association.

MS MASON:   May it please the Court, I inform the Court that the following member of the Bar here present has been appointed as Senior Counsel in the State of Tasmania.

She is:

Madeleine Sarah Wilson who ranks in seniority after Jacqueline Gaye Hartnett

May it please the Court.

KIEFEL CJ:   Ms Bashir SC, President of the New South Wales Bar Association.

MS BASHIR:   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 the State of New South Wales.

They are:

John Alexander Waters who ranks in seniority after Timothy David Castle

Peter Thomas Newton who ranks in seniority after Craig Michael Everson

Bede Augustine Patrick Kelleher who ranks in seniority after Matthew Frederick Richardson

Cynthia Louise Cochrane who ranks in seniority after Bede Augustine Patrick Kelleher

Donna Lynette Ward who ranks in seniority after Cynthia Louise Cochrane

Hamish Paul Taylor Bevan who ranks in seniority after Donna Lynette Ward

Andrew David Bailey Fox who ranks in seniority after Hamish Paul Taylor Bevan

Penelope Anne Horvath who ranks in seniority after Andrew David Bailey Fox

Sera Mirzabegian who ranks in seniority after Penelope Anne Horvath

David Richard Sulan who ranks in seniority after Sera Mirzabegian

Georgina Elizabeth Wright who ranks in seniority after David Richard Sulan

Sharyn Trisha Hall who ranks in seniority after Georgina Elizabeth Wright

James Alexander Arnott who ranks in seniority after Troy Duncan Anderson

Luke Thomas Livingston who ranks in seniority after Stuart Andrew Lawrance

Helen Ruth Roberts who ranks in seniority after Luke Thomas Livingston

May it please the Court.

KIEFEL CJ:   Mr Robertson SC, for the Bar Association of South Australia.

MR ROBERTSON:   May it please the Court, I inform the Court that the following member of the Bar here present has been appointed as Senior Counsel in the State of South Australia.

He is:

Damian Francis O’Leary who ranks in seniority after Jarrod Kane Warren

May it please the Court.

KIEFEL CJ:   Mr Cuerden SC, President of the Western Australian Bar Association.

MR CUERDEN:   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 the State of Western Australia.

They are:

Geoffrey Paul Bourhill who ranks in seniority after Lindsay Makinson Fox

Clare Helen Thompson who ranks in seniority after Darren William Leslie Renton

Terence James Palmer who ranks in seniority after Griffin Jay Ranson

Robin Lynn Cohen who ranks in seniority after Terence James Palmer

May it please the Court.

KIEFEL CJ:   Mr Muller, for the President of the Australian Capital Territory Bar Association.

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

She is:

Margaret Anne Jones who ranks in seniority after Neville Shane Drumgold

May it please the Court.

KIEFEL CJ:   Ms Annesley KC, President of the Victorian Bar.

MS ANNESLEY:   May it please the Court, I inform the Court that the following members of the Bar here present have been appointed as King’s Counsel or Senior Counsel in the State of Victoria.

They are:

Daniel Victor Aghion who ranks in seniority after Sandro Samy Goubran

Angus Ewen Auchline MacNab who ranks in seniority after Daniel Victor Aghion

Marc Leon Felman who ranks in seniority after Angus Ewen Auchline MacNab

Fiona Ann Louise Ryan who ranks in seniority after Marc Leon Felman

Meghan Jane O’Sullivan who ranks in seniority after Fiona Ann Louise Ryan

Siobhan Ryan who ranks in seniority after Meghan Jane O’Sullivan

Graeme Anthony Hill who ranks in seniority after Siobhan Ryan

Emily Clare Victoria Porter who ranks in seniority after Graeme Anthony Hill

Patrick Jonathan Doyle who ranks in seniority after Emily Clare Victoria Porter

Ruth Byrne Shann who ranks in seniority after Patrick Jonathan Doyle

Kathleen Elizabeth Foley who ranks in seniority after Lisa Anne Hespe

Charles Oliver Harvey Parkinson who ranks in seniority after Elizabeth Anne Bennett

Nicholas Malcolm Wood who ranks in seniority after Charles Oliver Harvey Parkinson

Barbara Anne Myers who ranks in seniority after Nicholas Malcolm Wood

May it please the Court.

KIEFEL CJ:   Mr Sullivan KC, President of the Bar Association of Queensland.

MR SULLIVAN:   May it please the Court, I inform the Court that the following members of the Bar here present have been appointed as King’s Counsel in the State of Queensland.

They are:

Brett Francis Charrington who ranks in seniority after Michael John Drysdale

Benedict John Power who ranks in seniority after Craig John Eberhardt

Jeffrey Ian Otto who ranks in seniority after Benedict John Power

Ruth Madeline O’Gorman who ranks in seniority after Mark Francis Johnston

Steven James Deaves who ranks in seniority after Ruth Madeline O’Gorman

May it please the Court.

KIEFEL CJ:   Are there any motions from the Bar Table?

Present in the Court today are the Honourable Peter Quinlan, Chief Justice of Western Australia, the Honourable William Alstergren, Chief Justice of the Federal Circuit and Family Court of Australia, and in addition to the Presidents or representatives of the Bar Associations, Mr Collins KC, President of the Australian Bar Association, and Mr Liveris, President of the Law Council of Australia.

On behalf of the Court, I congratulate the new silks.  It is fitting that upon your appointment as Senior Counsel or King’s Counsel for your State or Territory you journey to this Court and have your appointment announced.  Your attendance, and that of your Bar Association, acknowledges the relationship between the courts and the Bar, and the position of this Court at the apex of our judicial system.  The strong relationship between the courts and the Bar and the rule that a barrister’s first duty is to the court has long been an important feature of our legal system.  It would not be possible for the courts to discharge their work if they were not able to rely upon counsel to conduct litigation efficiently and in accordance with the high standards of conduct and ethics which may be expected of members of the profession of barristers.

The Court extends a welcome to your families.  Your journey to the pinnacle of your profession was not taken alone and it has taken many years.  Your appointment is not likely to have been possible without the considerable support and encouragement on the part of your families, for whom this is no doubt an especially happy occasion.

The grant of silk is recognition of your legal knowledge, your ability as an advocate and your display of qualities which have marked you out as leaders of the Bar.  A person is not appointed to silk in recognition merely because of his or her long service as a barrister.  An appointment is justified only where it is obvious that the person’s ability as a lawyer and advocate is outstanding.  This is usually evident from the nature and extent of a person’s practice, the complexity and difficulty of their work, and from the fact that the person has routinely led more junior barristers in the conduct of litigation.

The years at the Bar which now lie ahead of you, as Senior Counsel, will be the most interesting and challenging of your professional life.

The office of Senior Counsel, more specifically King’s Counsel, dates back over 400 years.  The precursors were Serjeants‑at‑Law.  Sir Francis Bacon was the first person to be granted the office of King’s Counsel by letters patent which referred to him as “one of our counsel learned in the law” ^[1].  King’s Counsel were appointed to give assistance and advice to the law offices of the Crown.

[1]        Holdsworth, "Rise of the Order of King's Counsel and Its Effects on the Legal Profession" (1920) 36 Law Quarterly Review 212 at 214.

During the 18th century, King’s Counsel ceased to be assistants of the Attorney‑General and the Solicitor‑General.  The position became one simply of rank and precedence superior to ordinary counsel.  Their establishment contributed to the decline of the Serjeants.  By the 19th century nearly all barristers with high aspirations chose the silk gown of a King’s Counsel over the coif of a Serjeant.  The passing of the Serjeants from history serves to remind us that circumstances may change and that the Bar may need to adapt whilst at the same time holding to its core values.

There has been some controversy over who was the first formal appointee of silk at the Australian Colonial Bar, although there is good reason to believe it was John Hubert Plunkett of New South Wales in May 1856[2].  The delay in formally granting silk has been attributed to doubts as to whether the Governor of a colony had power to issue patents of that kind[3].  But the appointment of Plunkett served to spur on the other colonial governments to appoint their own silks with Tasmania, Victoria and Queensland appointing their first Queen’s Counsel in 1861, 1863 and 1865 respectively.

[2]        Bennett, "Of Silks and Serjeants" (1978) 52 Australian Law Journal 264 at 270.

[3]        Bennett, A History of the New South Wales Bar (1969) at 236.

While the numbers of Senior Counsel in Australia have grown since those first appointments in the mid‑19th century, the significance of the appointment remains unchanged.  Taking silk remains about more than just acquiring a higher status within the profession.  With the new status comes responsibilities and they will require you to think beyond yourself and your own interests.  More will be expected of you – by the courts, by the profession and by your Bar Associations.

The junior Bar will look to you for guidance and example.  You must be conscious of this at all times and conduct yourself with the dignity and civility that your position demands.

Your appointment is made for the benefit of the profession as well as in recognition of your abilities.  This is how the profession may continue.  The profession will survive if it maintains that which sets it apart from other providers of services.  Its hallmarks are integrity and independence.  The courts expect every barrister to uphold the professional and ethical standards of the profession, but they expect silks to be the exemplars of such conduct.

Your role as a leader of the Bar will involve you even more closely with your Bar Associations.  The Associations will expect you to participate in the affairs of the Bar, to guide and educate the junior Bar, to assist when important issues arise and to share in the concerns about challenges facing the profession.  Those who have appointed you evidently have confidence not only in your abilities as a lawyer and advocate but also that you will fulfil the obligations of a silk.

The tradition of this Court recognising the appointment of the nation’s silks is of longstanding.  It was reported in a newspaper in 1921 that:

“Sir Adrian Knox, Chief Justice of the High Court, and his brother Justices Higgins, Duffy, Powers and Starke, looked very hot as they took their seats . . . this morning, adorned by long bottomed wigs reaching well down over their shoulders . . . Mr H.W. Bryant and Mr J.H. MacFarlane intimated that they had been appointed as His Majesty’s counsel . . . Each member of the Court smiled approvingly, and the Chief Justice remarked ‘I am glad to hear it.  I congratulate you both.’” ^[4]

[4]        "New King's Counsel", The Ballarat Star (15 February 1921).

The ceremony today may not be quite so brief, yet it marks the continuation of a tradition.  That tradition may have been disrupted by the COVID‑19 pandemic, but the Court is now glad to be in a position to officially congratulate the new silks on their appointment and to acknowledge the significant office of which they are now a part.

The Court thanks you for the courtesy that you have shown in informing it of your appointments and wishes you and your families well for the future.

The Court will now adjourn until 10.00 am tomorrow.

AT 3.45 PM THE COURT ADJOURNED