Re Robertson

[1988] HCA 38

HIGH COURT OF AUSTRALIA

Mason C.J. and Wilson J.

IN THE MATTER OF THE JUDICIARY ACT 1903

2 August 1988

Decision

MASON C.J. AND WILSON J.: On 9 March 1987 Timothy Frank Robertson ("the applicant") applied to the Supreme Court of Queensland to be admitted as a barrister of that Court. The practice relating to such applications is governed by a rule of court entitled "Rules Relating to the Admission of Barristers of the Supreme Court of Queensland" ("the Rules"). Rule 17 of the Rules provides that no person shall be entitled to be admitted as a barrister until he has received the certificate of the Barristers' Board in Form 1. Form)1 is a certificate, under the signature of the Chairman of the Board, to the effect that the person whose name it bears has complied with the Rules. Rule 38(d) applied in terms to the applicant and required him to include in his affidavit the matters set out in Form 10. That Form, as then prescribed, required an applicant for admission to swear that he had ceased to practise as a barrister in the various courts to which he had been admitted and that he had arrived in Queensland on a certain day (see Form 10, pars.6 and 7). The applicant was not prepared to comply with that requirement. In consequence of that non-compliance, the Board refused to issue Form 1 to him.

2. On 19 June 1987 the applicant filed notice in this Court of his intention to move for an order pursuant to s.40(1) of the Judiciary Act 1903 (Cth) removing into this Court:

"the whole of the cause pending in the Supreme Court of Queensland wherein a question has been raised whether rules 17, 38(d) and 57 of the Rules relating to the Admission of Barristers of the Supreme Court of Queensland in so far as they require Timothy Frank Robertson to take up residence in Queensland and cease to practise as a barrister otherwise than in Queensland as conditions precedent to his admission as a barrister of the Supreme Court of Queensland are ultra vires the Constitution."

3. In substance, the applicant relied, inter alia, upon the following matters as establishing sufficient cause for the removal:

(a) that in so far as the Rules require the applicant to take up residence in Queensland and forgo his residence in New South Wales as a condition precedent to his admission as a barrister, they are contrary to s.117 of the Constitution;

(b) that in so far as the Rules require the applicant to cease practising in the Supreme Court of New South Wales, the High Court and the Federal Court as a condition precedent to his admission as a barrister, they are inconsistent with s.55B of the Judiciary Act and to the extent of that inconsistency are invalid pursuant to s.109 of the Constitution.

4. On 2 July 1987 the Governor in Council amended the Rules. The effect of the amendment was to delete pars.6 and 7 from Form 10 and substitute a paragraph stating the intention of the person applying "to practise principally in the State of Queensland commencing on ...", with provision for the relevant date to be inserted. An additional paragraph was inserted in rule 15 to the same effect as the new paragraph in Form 10 and a new rule 15B was inserted providing for the admission to be conditional in the first instance.

5. The Bar Association of Queensland, the Barristers' Board and the Attorney-General for the State of Queensland all appeared to oppose the motion, principally on the ground that by reason of the amendment to the Rules the questions sought to be litigated by the applicant are rendered academic and that in effect the Court would be asked to give an advisory opinion.

6. On the other hand, the applicant conceded that his application is to be governed by the Rules in their amended form and submits that the issues he seeks to litigate remain substantially relevant to those amended Rules.

7. In all the circumstances, we are satisfied that the applicant has shown sufficient cause and that the cause should be removed. We think it appropriate to give the applicant leave to revise the formulation of the grounds upon which it will be argued that the Rules are ultra vires the Constitution.

Orders

Pursuant to s.40(1) of the Judiciary Act 1903 (Cth), remove into this Court the whole of the proceedings numbered M122/1987 in the name of the applicant now pending in the Supreme Court of Queensland. Further order that the applicant have leave to amend the formulation of the grounds upon which it is intended to be argued that the Rules relating to the Admission of Barristers of the Supreme Court of Queensland are ultra vires the Constitution.