Re Robertson

[1989] HCA 52

HIGH COURT OF AUSTRALIA

Mason C.J., Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ.

IN THE MATTER OF AN APPLICATION BY TIMOTHY FRANK ROBERTSON

16 November 1989

Decision

MASON C.J., BRENNAN, DEANE, DAWSON, TOOHEY, GAUDRON AND McHUGH JJ. This is a stated case which was heard at the same time as the two matters in Street v. Queensland Bar Association.

2. The applicant is a barrister resident in New South Wales. He is admitted to practice as a barrister of the Supreme Court of New South Wales and practises as a barrister principally in that State. He wishes to obtain admission to practice as a barrister of the Supreme Court of Queensland but intends to continue to practise principally in New South Wales. For reasons similar to those in Mr Street's case, the Rules Relating to the Admission of Barristers of the Supreme Court of Queensland ("the Rules") stand in his way.

3. On 9 March 1987 the applicant commenced proceedings in the Supreme Court of Queensland seeking admission to practice as a barrister of that Court. As explained in Street, the Rules were subsequently amended on 2 July 1987. The applicant contends that the amended Rules are contrary to s.117 of the Constitution in so far as they subject him to a disability or discrimination as a subject of the Queen resident in New South Wales. In these circumstances the following question has been stated for determination by the Court:
"Are the Rules of Court relating to the
admission of Barristers of the Supreme Court of Queensland as amended by Order in Council dated 2 July 1987 invalid as being contrary to Section 117 of the Constitution?"

4. It is clear that the applicant cannot practise principally in Queensland, as required by the Rules as amended, while continuing to practise principally in New South Wales. The applicant contends and the State of Queensland, the Queensland Bar Association and the Queensland Barristers Board ("the respondents") deny that the applicant cannot practise principally in Queensland without foregoing his residence in Sydney. Be that as it may, the fact is that the requirement that the applicant practise principally in Queensland would be substantially deprived of its onerous nature were he to reside in Queensland. The case is indistinguishable from the stated case in Street and the applicant is entitled to invoke the protection of s.117 of the Constitution.

5. We would accordingly answer the question asked in the stated case as follows:

Rule 15(e), par (6) of Form 10 and Rule 15B(2) are inapplicable to the applicant to the extent that they require him to have an intention of practising principally in Queensland or so to practise during the period between conditional and absolute admission.

The applicant's costs should be paid by the respondents.

Orders

Answer the question in the stated case as follows:
Are the Rules of Court relating to the admission of Barristers of the Supreme Court of Queensland as amended by Order in Council dated 2 July 1987 invalid as being contrary to Section 117 of the Constitution?
Answer: Rule 15(e), par(6) of Form 10 and Rule

15B(2) are inapplicable to the applicant to the extent that they require him to have an intention of practising pricipally in Queensland or so to practise during the period between conditional and absolute admission.

The respondents to pay the applicant's costs in this Court.