In the Matter of Robertson

[1989] HCATrans 44

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney	No S58 of 1987
In the matter of -

An application by

TIMOTHY FRANK ROBERTSON

MASON CJ

(In Chambers)

Robertson

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 7 MARCH 1989, AT 9.32 AM

Copyright in the High Court of Australia

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MR T.F. ROBERTSON:  May it please the Court, in this matter

I am the applicant.

MR G.L. DAVIES, QC:  May it please the Court, I appear for

the Attorney for the State of Queensland, and for

the Bar Association, with my learned friend, MR J. DOUGLAS.

(instructed by t~e Crown Solicitor for Queensland)

HLS HONOUR: Yes, Mr Robertson.

MR ROBERTSON:  Your Honour, the parties have agreed a stated

case with the exception of one matter. There is

already on the Court file a copy of that agreed

case.

HIS HONOUR:	Yes.	The disagreement is over paragraph 7.
MR ROBERTSON:	That is so.	Your Honour, I have a

re-word-processed stated case which makes some

architectural amendments only.

HIS HONOUR:  Is that agreed to apart from this clause 1n

paragraph 7?

MR DAVIES:	Yes, Your Honour.
MR ROBERTSON:	If I might have leave to file it.

Your Honour, my friend's instructing solicitor

notified me on 3 March 1989 that the remaining

area of dispute was paragraph 7 and that related

to a question of fact which it seems seemed to him

would require a tri~l. He went on to say that,

"My client would want to prove that a barrister

could practise principally in the State of

Queensland without foregoing his residence in

Sydney". That, with respect, is an irrelevancy

and a red herring as section 117 addresses

my personal situation and not the position of some

hypothetical barrister, it being, it seems, a

matter on which my friend addresses a position

quite outside the parameters of my personal

situation.

(Continued on page 3)

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Robertson

HIS HONOUR:  Yes, but, Mr Robertson, I happen to be -

I will not say blissfully but unaware of your personal situation so that I am not in a position

to make any findings of fact that relate to

you without hearing evidence.

MR ROBERTSON: Quite. Your Honour, an affidavit was filed

in these proceedings last year by me, making

the statement as a - - -

HIS HONOUR:  Yes, but it was just a bland statement, was

it not, that you could not do so without foregoing

your residence in Sydney?

MR ROBERTSON: Quite, and in my respectful submission

that is ail that is necessary to establish it

as a matter of fact, there being no suggestion

of any evidence challenging that or any possibility
of any evidence being brought forward to challenge

that. The only possibility which has been

foreshadowed to me is an allegation that some
hypothetical barrister might be able to practice

in Queensland whilst maintaining a residence

in Sydney, New South Wales.

That may be the case but that is not my

position. Section 117 addresses me personally.

In those circumstances I would ask Your Honour

to settle the case as we propose. The alternative

is for the matter to be left in the stated case

as a contention on my part and an opposition

on the part of the respondents.

HIS HONOUR:  Yes, paragraph 7 cannot remain in the form

in which it presently is if this disputed clause

comes out. So it would then have to be reformed

as an assertion on your part and a denial on

the part of the defendants.

MR ROBERTSON: Yes, that is the alternative. If

Your Honour were minded to settle it in that	fashion, then obviously I could ask the court	to draw what inferences of fact it wished from
the matters of fact alleged in the stated case.

HIS HONOUR:	Yes.
MR ROBERTSON:	Very well, if Your Honour is of that mind,

then I would propose - - -

(Continuing on page 4)

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Robertson

HIS HONOUR:  I am not necessarily of that mind at the moment,

Mr Robertson.	I would want to hear what Mr Davies
says, first.

MR ROBERTSON: Certainly.

HIS HONOUR:  The other alternative which I take it would

not be particularly attractive to you is that I stand this matter over - take it out of the

list next week.

MR ROBERTSON:  No, it is not attractive to me.

HIS HONOUR:  No, I should not have thought so. Yes, Mr Davies?

MR DAVIES:  Your Honour, accepting our learned friend I s

proposition of law that section 117 addresses

him personally, we would still submit it is a

question of fact which requires trial. As to

whether, in fact, it should go in as an assertion,

a contention, by the applicant and a denial by

us, we would submit that just does not take it

any further. That would not assist the Court

in any way at all and that it really either should

be left out or stood over.

HIS HONOUR:  It may not assist the Court but, on the other

hand, it focuses attention on what the relevant

contentions are.

MR DAVIES:  Yes, I suppose that is true, Your Honour, but

they could as easily be made orally in the course

of submissions as contentions usually are.

HIS HONOUR:  They could be but, on the other hand, after

all, Judges are in the habit of reading stated

cases before they conduct a hearing or participate

in the hearing of the Full Court.

MR DAVIES:  Yes.

HIS HONOUR:  Mr Davies, I wanted to explore with you for

a moment what would be the outcome of a trial on this issue of fact seeing that you concede

that the CONSTITUTION addresses Mr Robertson

personally?

MR DAVIES:  I did not want to concede that, Your Honour.

I was just making that assumption for the purpose

of the discussion. But, Your Honour, I do not

know the answer to that in the sense that - I

mean, even assuming for a moment that our learned

friend's contention of law is correct, then it

is relevant, for example, that other barristers

in similar positions to Mr Robertson could do

that in order to show that he, Mr Robertson, could do

that.

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Robertson

I have not made any attempt to explore the

evidence but if I may give one possible example:

there are barristers who reside in Brisbane of whom it might be said their principal place of

practice is Mt Isa because there are certainly

one or two barristers in Brisbane whose almost

sole court practiae is in Mt Isa - and there may

be other - - -

(Continued on page 6)

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HIS HONOUR:  This is largely a matter of the level at which

you want to practise, is it not?

MR DAVIES:  Yes, it is. And no doubt, for example, ac another

level, at an appellate level, that contention might

be a motive of others.

HIS HONOUR:  I can imagine somebody who would want to pursue a

rather relaxed professional life-style could live in

Sydney and decide that he would practise, say, three months a year in Queensland and do no work, or very little work, in New South Wales.

MR DAVIES:  Yes.

HIS HONOUR: Theoretically, it is possible for anyone to live

in one capital city and conduct his principal

professional practice in another capital city. But

it all depends on how closely you want to be engaged

in the practise of your profession and whether or not

you are going to attract the kind of work that would

keep you busy all the time.

MR DAVIES:  Yes, perhaps the nature of the work that you are

engaged in - and also the way in which the court lists

are conducted.

HIS HONOUR:  Structured, yes.

MR DAVIES:  So, they may be the sort of matters, Your Honour,

but we have not explored specifically the sort of

evidence that we would want to adduce.

HIS HONOUR:  Yes, well obviously between now and next Tuesday

when these cases are listed - this andthe STREET

case to be listed - it is impossible for me to make

the time available to hear evidence and make findings.

$0 that subject to what Mr Robertson says in reply

I am minded to reform p~ragraph 7 so that

paragraph 7 consists of an assertion on the part of

Mr Robertson with a denial by the defendent.

MR DAVIES:	As Your Honour pleases.
HIS HONOUR:	Yes.
MR ROBERTSON:	Well, Your Honour, I accept that position.

There is, of course, an agreed substratum of fact

within the paragraph itself as it presently stands.

The way - - -

HIS HONOUR:  The trouble is unless you reform it it looks like a

tautology, a statement of the obvious.

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MR ROBERTSON:  Indeed. I would propose as follows, that:

The applicant cannot practise principally

in the State of Queensland whilst continuing
to practise princip~lly in the State

of New South Wales.

That is the agreed portion, and the next sentence

should be:

The applicant contends and the State of Queensland, The Queensland Bar Association and the Queensland

Barristers Board deny - - -

11

HIS HONOUR:  Cannot we say that "the respondents

MR ROBERTSON: Well, they are not - - -

HIS HONOUR:	They are not all respondents.
MR ROBERTSON:	They are not respondents, apparently.

HIS HONOUR:  I see. Now, read that again, would you,

Mr Robertson:

The applicant contends and the State of

Queensland - - -

MR ROBERTSON:	- - -the State of Queensland, the Queensland
Bar Association and the Queensland Barristers
Board deny that - the·applic~nt c~nnot practise
principally in the State of Queensland without
foregoing his residence in Sydney whilst
continuing to-practise principally in the
State of New South Wales.

All right, I accept. My friend has suggested that

I should stop at "Sydney 11 and I do that.

HIS HONOUR:  Well now, that would mean:

The applicant contends and the State of Queensland,

The Queensland Bar Association and the Queensland

Barristers Board deny that -

the applicant can practise in the State of Queensland

without foregoing his residence in Sydney.

MR ROBERTSON:	"Cannot" practise principally.
HIS HONOUR:	Cannot practise principally - and stop at that point.
MR ROBERTSON:	Yes.

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HIS HONOUR:	Yes.	Yes, well, I am prepared to state a case

with paragraph 7 in that form. That is acceptable

now to you in the light of what I have said,

Mr Davies?

MR DAVIES~	Yes, Your Honour.
HIS HONOUR:	Very well. Well, the case will be stated in that

form. I shall sign it today and the case will take

its place in the list next week along with the STREET

case. The Court will now adjourn.

AT 9.44 AM THE MATTER WAS ADJOURNED SINE DIE

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