Street v Queensland Bar Association

[1988] HCA 37

HIGH COURT OF AUSTRALIA

Mason C.J and Wilson J.

ALEXANDER WHISTLER STREET v. QUEENSLAND BAR ASSOCIATION AND OTHERS

2 August 1988

Decision

MASON C.J. AND WILSON J.: This is an application for special leave to appeal from a decision of the Full Court of the Supreme Court of Queensland (Connolly, Shepherdson and Williams JJ.) refusing an application by the applicant for admission to practise as a barrister of the Supreme Court. The decision was given on 22 May 1987. The issues which were litigated in those proceedings were twofold, namely, that the "Rules Relating to the Admission of Barristers of the Supreme Court of Queensland" ("the Rules"), in so far as they require an applicant for admission to be a resident of the State -

(a) contravene s.117 of the Constitution; and

(b) are invalid by reason of s.92 of the Constitution.

Both issues were resolved against the applicant. On 10 June 1987, the applicant filed notice of an application for special leave to appeal from the decision.

2. On 2 July 1987 the Governor in Council amended the Rules. The substantial effect of the amendment was to delete the condition precedent which formerly had been held to constitute a requirement for admission, namely, that an applicant for admission reside in Queensland, and to substitute a requirement that an applicant intend to practise principally in the State of Queensland.

3. The application for special leave was opposed by the Bar Association of Queensland, the Barristers' Board and the Attorney-General for the State of Queensland, 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 was being asked to embark on an advisory opinion.

4. On the other hand, it was submitted for the applicant that the issues remained substantially relevant and that an appeal to this Court would provide a suitable vehicle by which they could be determined.

5. We do not doubt that the case raises issues of general importance which ordinarily would warrant the grant of special leave. However, there is a difficulty, albeit little more than a technical difficulty, inherent in the circumstances of the case by reason of the amendment of the Rules after the decision of the Full Court and indeed whilst the application for special leave to appeal was pending in this Court. That difficulty is that the case was fought in the Supreme Court and the decision of the Court from which special leave is now sought was made on the basis of rules which are no longer in force. Although there may be little point in this Court hearing an appeal based on the old rules, nevertheless, the issues sought to be litigated by the applicant under the new rules remain substantially the same. Mr Bennett, counsel for the applicant, sought leave, if the Court thought it necessary or helpful in the circumstances, to have the application adjourned in order that his client could file in this Court a statement of claim seeking a declaration of invalidity directed to the Rules as amended. If that claim were to be the subject of a demurrer, then the demurrer could be brought on for hearing at the same time as the matter removed into this Court upon the application of Timothy Frank Robertson.

6. We think this is a convenient course to follow. The application for special leave to appeal will be adjourned, leaving the applicant free to institute fresh proceedings with a view to the early determination, having regard to the amended Rules, of the issues touching his application to practise as a barrister of the Supreme Court of Queensland.

Orders

Application for special leave to appeal adjourned generally.