Street v Queensland Bar Association & Ors; In the matter of an application by Robertson

[1988] HCATrans 140

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B45 of 1987

B e t w e e n -

ALEXANDER WHISTLER STREET

Applicant

and

QUEENSLAND BAR ASSOCIATION

AND ORS

Respondent

Application for snecial leave

to appeal

Office of the Registry

Sydney	No S58 of 1987
In the matter of -

The Rules relating to the

admission of Barristers of the

Supreme Court of Queensland

Street

And in the matter of -

TIMOTHY FRANK ROBERTSON

Application for removal pursuant
to section 40(1) of the

Judiciary Act

MASON CJ

WILSON J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON FRIDAY, 1 JULY 1988, at 11.02 AM

Copyright in the High Court of Australia

BlTS/1/SH 1 1/7/88

MR D.M.J. BENNETT, QC: In the first of those matters, if

the Court pleases, I appear with my learned friend,

MR D. FRASER, for the applicant. (instructed by

M.G. Lyons & Co)

MR N.M. COOKE, QC: If the Court pleases, I appear with my

learned friend, MR W.M. BOULTON, for the Bar

Association of Queensland. (instructed by

W.H. Tutt & Co.)

MR C. HAMPSON, QC: If it please the Court, I appear with my

learned friend, MR W.M. BOULTON, also, for the

Barristers' Board. (instructed by W.H. Tutt & Co).

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

my learned friend, MR A.K. HERBERT, to intervene for

the Attorney-General for the State of Queensland in

support of the respondent. (instructed by the

Queensland Crown Solicitor)

MR T.F. ROBERTSON:  May it please the Court, I am the applicant

in person in the second matter.

MR DAVIES:  Your Honours, I think that we are for the first

respondent who is the Attorney-General.

MASON CJ: In the second matter?

MR DAVIES: In the second matter.

MASON CJ: Yes. Was that the only other appearance in the

second matter? Yes, that must be so, I

think, Mr Davies. Yes, Mr Bennett.

MR BENNETT: If the Court pleases. Your Honours, I hand up

an outline of the argument I propose to put to the

Court.

MASON CJ: Yes.

MR BENNETT:  If Your Honour pleases. Your Honours, it is

submitted that the case involves a number of important

questions. So far as section 92 is concerned, it is ~oposed to argue that. the decision of this Court in

COLE V WHITFIELD is applicable. The primary

question which will arise is the extent to which
the test laid down in that case can be applied to

intercourse and how it can be applied to intercourse.

There are, of course, questions which arise as to

how concepts based upon analogies of protection can be applied to intercourse as such. It will

also be submitted that this is a case involving

trade and conunerce. If it involves trade and

conunerce, of course, the test in COLE V WHITFIELD

applies fairly simply because we will be submitting

BlT5/2/SH	2	1/7/88
Street

that the sole purpose of the relevant regulation,

either under the old or under the new rules, is

protection which, of course, is the prohibited

purpose under the new test.

So far as section 117 is concerned, there,

again, will be two submissions. The broader

submission is that the Court should overrule

HENRY V BOEHM and that it should apply a test

based on the purpose or effect of substantive

discrimination rather than the narrow test

adopted in HENRY V BOEHM which took what we would

respectfully submit is a very literal view of the

prohibition of discrimination based upon residence.

MASON CJ:  What view did you say? What is the adjective you

used?

MR BENNETT: Literalistic. Literal, perhaps, would be a better

adjective. That submission is the same under the old

and the new rules. The narrow submission under

HENRY V:' BOEHM which is the first matter referred to

in the outline is one which can only be made under

the old rules, not under the new rules. Your Honours

will recall that in HENRY V BOEHM it was said that a

requirement of three months' residence did not violate

section 117 because it applied equally to residents

and non-residents. In Queensland, however, the test

which has been applied by the courts as a result of

the judicial construction of a paragraph in a form

is that the test is based solely on residence.	The
authority ·is RE SWEENEY.	I will not take

Your Honours to it unless Your Honours wish me to.

MASON CJ:	No.
MR BENNETT:	Now, that argument, Your Honours, is only available

under the old rules and not under the new rules.	The
new rule was promulgated one day prior to this
applicaton being set down, to the date on which
this application was first to be heard in Brisbane.

It was published one day after in the Government

Gazette and we would be submitting that it would be

inappropriate for this Court to allow that to

interfere with the grant of special leave.	I have
listed	in the submissions. a number of arguments in

support of that submission. They are: the· section 92

argument is not affected; the major section 117

argument is not affected - I do not propose, unless

Your Honours wish me to, to argue today the question

of retrospectivity of the amendment. It is a fairly
short question but, if it is retrospective, the

applicant must bring himself under the new rules

and, therefore, the question remains, of importance.

The sole effect of the amendment is, therefore, to

remove the narrower argument under section 117.

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Street

I should say it does, also, remove a very short

argument whichIB not special or important but

which would arise in the case and that is the argument that the construction of the form is

wrong. What has happened is that the form

prescribed contains in it the words "I arrived

in Queensland on" and then a blank date and it

has been held that that contains within it

the implication that you must be a resident of

Queensland. There is a short argument that,

despite a long line of authority to that effect,

that is incorrect. That argument, of course, only

arises under the old rule but it is a very short
argument and it certainly will not delay the Court

for long.

If the amendment is not retrospective, then

the narrow question under section 117 and that
construction question remain of importance to the

applicant and, of course, to Mr Robertson, and we

would submit it would be unjust for the applicant's

accrued rights, assuming the legislation is not retrospective, to be frustrated by an amendment

which is not retrospective. In other words, where

a person has an accrued right, his case is heard.

The case has obvious political connotations. We

would submit it would be highly unfortunate for a
non-retrospective amendment to be given the effect

of taking away his rights because it would deny the

opportunity for special leave to appeal and, therefore,

in effect, make the amendment retrospective. Of course,

if the application were refused on the basis of the

amendment, it would be necessary for the applicant

to make a fresh application. He would be delayed

and others seeking to follow in his footsteps would

be delayed by six months or more and we would submit

that there is no substantive disadvantage in the

questions being determined in this case; that all

the relevant questions can be determined in this

appeal and, we would submit, it is an appropriate

case for special leave.
The importance of the issue falls into three categories in descending order.	The first is the

importance of the constitutional questions, the

meaning of intercourse under COLE V WHITFIELD and -

I am sorry, the application of COLE V WHITFIELD to intercourse and the broad interpretation of section 117

on which there is very little authority. The second

and narrower area of public importance is the rights

of interstate barristers to practise in Queensland

and, generally, interstate if other States were to

re-erect barriers and the third and lowest level of

importance is, of course, the importance to the

applicants themselves - sorry, the applicant himself

and Mr Robertson which is nevertheless, we would

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Street

submit, of importance and, for those reasons, we

submit special leave should be granted.

MASON CJ:  Yes, thank you, Mr Bennett. Now, Mr Robertson,

it might be appropriate for us to call on you next.

MR ROBERTSON:	Yes, thank you, Your Honour.
MASON CJ:	Do you wish to add to - - - ?
MR ROBERTSON:	I do, Your Honour.
MASON CJ: Yes.
MR ROBERTSON:	The applications of Street and myself are purely coincidental, fortuituous that they occurred in around
about the same time.
MASON CJ:	But that does not matter, does it?
MR ROBERTSON:	No, it does not, but my application is different

to Street's in several respects.	I do not rely on
section 92.	I rely principally upon the effect or

the proper operation which I say section 117 has.

I do not say than HENRY V BOEHM can be distinguished.

I say it is clearly in point and if it continues as

authority in this Court, it would deprive me of my

argument on section 117. I say that HENRY V BOEHM

is wrong and I am happy to briefly give the reasons

in a moment, Your Honour.

MASON CJ:	No, I do not think we will give that opportunity.
MR ROBERTSON:	Thank you.
MASON CJ:	We will assume that you propose to challenge

HENRY V BOEHM and you need not elucidate the grounds on which you are going to do so.

MR ROBERTSON:  Yes, certainly. The second ground is the inconsistency argument where I assert that my

entitlement to practice in federal courts and courts
exercising federal jurisdiction which has been

conferred by my name being enrolled in this Court

as a practitioner entitled so to practice and

which right is conferred by section SSB of the

JUDICIARY ACT, is inconsistent with a requirement

under the old Queensland admission rules which,

I say, amounts to a direction to me to cease practising in a place other than Queensland and

that i~ a straight section 109 inconsistency.

Your Honours will find these grounds set out at

pages 5 to 6 of the application book, grounds (a)

and (b). The further grounds (c) and (d) I do not

rely upon. I rely upon ground (e) which is the

inseverability ground which is merely incidental

to (a) and (b). Your Honours, (a) was considered

in the Supreme Court of Queensland in STREET's case

and, of course, in SWEENEY's case before then.

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Street

In my respectful submission, cause exists to remove

my matter from the Supreme Court of Queensland

because it would be simplv a waste of judicial time - J

to ask that court to reconsider the arguments I

had wished to put to i4 which would only be formal

anyway,relating to HENRY V BAUME. The second, perhaps

the minor argument relating to the inconsistency

question,is purely a matter of law and a question

which has traditionally been settled in this Court.

For those reasons, may it please the Court, I would

seek the removal and I submit that I have cause to do so.

MASON CJ: Yes, thank you, Mr Robertson. Yes, now who wishes

to address first for the respondents?

MR HAMPSON:  If the Court pleases, _does the Court have the

affidavit of Richard Charles Kent?	He is the secretary
to the Barristers' Board.	The affidavit was filed on

30 June and copies given to various people.

MASON CJ:  Yes, I think we have that affidavit.

WILSON J: Is this the one that exhibits the amended rules,

Mr Hampson?

MR HAMPSON:  Yes, that is so, Your Honour.

WILSON J: Yes, we have it.

MR HAMPSON:  To allow us to appreciate what is being talked

about, I think Your Honours have copies of the rules

before the amendment? Well, I can hand up two

copies, if Your Honours do not have them.

WILSON J: Yes, we have· them.

MR HAMPSON:  You have them.

MASON CJ: Yes.

MR HAMPSON:  If they are photocopies in the pamphlet form, it

is at page 4 under Part III, Qualifications for

Admission. You have rule 15 and under (d) there

are paragraphs (3), (4) and (5) which may be said

to be paragraphs giving rights to admission to

persons who have been admitted elsewhere than in

Queensland first. Now, those particular paragraphs

do not require anything about residence. There is
nothing said about residence there and, in the case

of the two gentlemen who wish to be admitted to the

Queensland Bar, they would, of course, fall under

15(d)(4) in the first instance. It is rule 38

which then requires a person seeking admission to

do certain things and, in the present case, it is

38(d) that is relevant:

BlTS/6/SH	6	1/7/88
Street

If he relies upon a previous admission,

include in his affidavit the matters

set out in form 10.

So, the persons in those classesof (3), (4) and (5)

have to comply with putting an affidavit in, in the form 10, and form 10, as was said in SWEENEY's case by one of the dissenting judges, Mr Justice Campbell,

was a document quite clearly drawn in the last

century and in paragraph (6) it provides:

That I ceased to practise as a barrister in

(here set forth the dates when the applicant

ceased to practise in the various Courts to

which he has been admitted, and the nature

of his employment hereafter.)

(7) That I arrived on the day of

19      , in the State of Queensland.

and I refer to people who know me and so forth.

Now, there is a long line of authority in

Queensland. Those paragraphs of the affidavit

really require an applicant under these (3),(4) and

( 5) , the elsewhere - ad.mi tted rules, to adopt residence

in Queensland as a prerequisite to admission and that

is the matter which was originally challenged and

that is the matter that is before the Court at the

moment, an application for special leave from a

decision of the Full Court of Queensland following

earlier decisions of that court that that is the case.

That is the matter that is presently before the Court.

The new rule, however, changed - it inserted in

rule 15,under (e), a paragraph that provided if he

relies on a qualification set out in paragraph (d)

(3), (4) or (5), the .,elsewhere already admitted"

situations, have the intention of practising

principally in Queensland and, by inserting after

rule 15(a), the following rule: 

An applicant for admission who relies on a

qualification set out in rule 15(d)(3), (4)

or (5) shall in the first place be admitted conditionally only for a period of one year. After the expiration of the said period of

one year the applicant may be granted absolute

admission if he satisfies the court that, since
his conditional admission, and since the date
of the application for the order absolute,

he has practised principally in Queensland

and has not pursued any occupation or business

other than that proper for a barrister.

Then, form 10 is also amended by (3) there, omitting

paragraph (6) and also omitting paragraphs (7) and (8).

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Street

So, the amendment of the form gets rid of the

argument that used to exist. Now, under the

who have been admitted under those rules so far.

new rules which came into force 12 months ago

Now, the situation that, therefore, confronts the Court at the present moment is that these

applicants here have never made any application

under the only rules which are presently relevant,

the others being repealed some 12 months ago, and

this Court is then asked, in our submission, quite

contrary to the principles according to which special

leave has been given for decades in this Court, to

pronounce upon legislation which has been repealed 12 months ago when no application has been made by

either of the gentlemen seeking admission, unlike

other persons, under the new rules - no application

has been made - so that those rules could be brought

before the Court and, indeed, it would appear that

there are only two persons involved, the two

gentlemen presently wishing to be admitted here in this Court, there are only two persons involved in

the question at all of the old rules and, in those
circumstances, it is said, for the interests of the

two persons, it is appropriate to give special leave.

It is important to challenge the repealed legislation

for the purpose, either of a section 52 argument or

to challenge the correctness of HENRY V BOEHM which

was, of course, decided in 1973.

(Continued on page 9)

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Street

MR HAMPSON (continuing):  Now, we would submit,upon all the

principles by which this Court over the years has

granted special leave, this clearly is not a case for

special leave, and that the proper course for the

applican~ is to do now what they should have done

~2 months ago, to apply under the new rules. If, in
fact, they are not admitted under the new rules, or

they find there is something of the new rules that

they wish to challenge; perhaps, for example, that
they cannot be admitted absolutely at the end of the

time, that they bring a challenge then.

MASON CJ:  But is that not to ignore the constitutional

importance of the issues that underlie the challenge,

that is, the right of a barrister, the entitlement

of a barrister, admitted in another State to practise

in Queensland without any discrimination in point of

residence.

MR HAMPSON:	To practise in Queensland courts.
NASON CJ:	Yes.

MR HAMPSON:  Yes. Well, the only reason they would be entitled

to practise in Queensland courts, it would be my

submission, is, of course, that you have the provision

in our rules here that entitle them to be admitted

in the first instance.

MASON CJ:	Yes.
MR HAMPSON:	No one can just walk into New South Wales without

being admitted there.

MASON CJ:	No.
MR HAMPSON:	It is necessary to be admited in the first instance.
MASON CJ:	But the question is whether or not there is a bar

in point of residence - - -

MR HAMPSON:	That is right.
MASON CJ:	- ~ - that violates a provision in the CONSTITUTION,
whether it be section 92 or section 117.
MR HAMPSON:	And the legislation imposed by judicial

construction of the legislation has gone 12 months ago.

This Court, in my submission, has made it clear on

many occasions that it does not give advisory

opinions. If you have a real issue before you on

legislation that, in fact, did impose that requirement

of residence and,. the--appiieants, as they would have

been over 12 months ago, had been denied admission

on the ground that they lacked that residence

qualification, and that, of course, was a point of

significance to all barristers in Australia. One

might have said, 'Yes, it is a very proper case for

BlT6/l/VH	9	1/7/88
Street

special leave" and immediately it would be given.

But one cannot overlook the fact that the rule -

the legislation under which they applied and wished to challenge, for constitutional reasons, has gone.

So the Court, at the moment, has nothing to work on.

It has got nothing before it. The legislation,

in fact, has been repealed and there is no relevant

application made by either of the gentlemen under the new rule, so it cannot be the subject of an appeal.

You see, it is suggested in the argument here, in the notes of outline of the appellant's submission

that was handed up by Mr Bennett, that somehow or other

the old and the new rules can be run together for the

purpose of this particular hearing. It just cannot,

in our submission.

That just is to overlook the fact that the new

rules are not a live issue before this Court. No

application has been made; there is no decision of

the Full Court in relation to them from which special leave is being sought. Special leave is being sought

from a decision of the Full Court which was based on

legislation which was repealed 12 months ago.	Now,
in	those circumstances -the matter could easily

have been cured. It is purely a matter, in our

submission, for the applicants to make applications

under the new rules. as ,. · on my instructions,

a number of people have done.

MASON CJ: Your principal point then is that the appeal, if it

goes forward, will result in a decison that is

advisory only. It will have no practical effect.

MR HAMPSON:	Yes, that is so.
MASON CJ:	Now, that is a rather different point from the point

that you were earlier urging, namely, that the case

is not one of general importance because it applies

only to barristers in New South Wales.

MR HAMPSON:  No. Well, I did not mean to make that point. I

am sorry if I made the point in that way. I thought

I was conceding the fact that if you had current

legislation being challenged, the legislation that

was currently in force being challenged by - even

though it was one barrister only and he says, "The

challenge that I make will be of importance to

barristers elsewhere, assuming that they have got

other qualifications to be admitted as barristers

in Queensland." In other words, they are only

concerned with the residential aspect of it; you

are not with the intellectual or other aspects of it,

whether you have been admitted elsewhere. The

Queensland c~urt is still entitled to insist on

certain things that are set out there in those

paragraphs (3), (4) and (5) of rule 15(d).

But limited only to the residential question,

if that residential question was in a statute, then

the barrister who is making the application says,

B1T6/2/VH	10	1/7/88
Street

"Well, now, I am in the same position as quite a

lot of barristers in Australia. They would otherwise

be able to bring themselves within the rules to be

admitted in Queensland, apart from this residential

bar." Now, if that was the case, I would concede there

was a strong case, a strong element of public

interest, so far as special leave is concerned.	But
my point is that that is not the case.	We are dealing
with repealed legislation here - - -

:MASON CJ:	Yes, I follow the point you are making, Mr Hampson.
MR HAMPSON:	Yes. That is the point that I am making and,

therefore, at the most, even if it went through, the

only person it could possibly benefit would be the

two applicants here, at the most. The High Court, in

my submission, does not give leave in those circumstances.

My point simply is that it is not our fault that that is

the situation. It would have been quite easy; they

have had 12 months to make an application under the

new rules which would have brought the new rules, if

they wished to challenge them, before the court.	But
you cannot challenge something if you have got no
process directed to it -never made an application
and just by putting a reference to it in your heads
of argument somehow or other invests the court with
jurisdiction to determine, when it has never been
before the Barristers' Board, and never been before
the Queensland Full Court.

:MASON CJ:  Yes.

MR HAMPSON:  They are our submissions. We aubmit it is a

straightforward case,that unfortunate1y there cannot

be special leave and what should obviously happen is

there should be an application made under the rules

which have been in force for the last 12 months and,

under which, I stress again, a number of people

have applied, and I am informed - I just checked

the number this morning - four, in fact, have been

admitted.

:MASON CJ:  Thank you. Now, is there anyon~ else on the

respondents' side who wishes to address?

MR COOKE:	I would like to make
:MASON CJ:	Yes, Mr Cooke.
MR COOKE:	Simply to adopt and rely on the arguments that my

learned friend, Mr Hampson, has made, that this is not an

appropriate case for special leave because it would

involve the Court in giving an advisory opinion, as

it were, on a rule which is defunct and which would

then have to applied by analogy to the situation of

a new rule.

:MASON CJ:  Yes. Mr Davies.

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Street

MR DAVIES:  Your Honour, just want to make the point that -

first of all, I ~hould say that we agree with

Mr Robertson, that the consideration by this Court

of the old ruleswould require reconsideration of

the decision of this Court in HENRY V BOEHM, but

the point we also want to make is that a consideration

of the new rule would not. We would take issue with

our learned friend Mr Bennett's submission, in that

respect, that the question raised under his heading

l(a)(ii) would be the same under the new rule.

YrurHonours will recall that the new rule provides

for principal place of practis·e, not a residence in

terms and, we would submit, not a concealed residence

provision.

But even if the submission could properly be

made with respect to the new rule that somehow in

that there is, in addition to a principal place

of practise requirement, a residential requirement,

then the new rule argument would require reconsideration

of the decision of this Court - a very old decision

of this Court - in DAVIES AND JONES V STATE OF

WESTERN AUSTRALIA, which the consideration of the

old rule certainly would not.

MASON CJ: What did that case decide? Just remind us, would you?

MR DAVIES:  That case decided, Your Honour, that where a

discrimination was based on two grounds, one of which

was residence, that it was not a discrimination which

was prescribed by section 117 of the CONSTITUTION.

In that case it was residence and domicile that were the

two relevant requirements. So the submission I am

really making here, Your Honour, is that, if, in fact,

you could say that the new rule which, on its face,

appears to be only a principal place of practise rule,

wherever you happen to reside, that if you coulJ say

that that also involves necessarily that you have to

reside effectively in Queensland, then it has two

requirements: principal place of practise and

residence, andjf DAVIES AND JONES V STATE OF WESTERN AUSTRALIA

is correct, then that doi::>Q not infringe section 117.

MASON CJ:  No. The problem, of course, is though, if you are

reconsidering HENRY V BOEHM, then it throws a

question mark over the previous decisions because
there has been a line of evolution in the cases from

the beginning.

MR DAVIES:  We woµld submit, with respect, that the overruling

of HENRY V BOEHM would not necessarily affect

DAVIES AND JONES V WESTERN AUSTRALIA at all,

Your Honour.

MASON CJ: That may be right, but it seems to me one cannot be

com:ortably satisfied that that would be the outcome.

B1T6/4/VH	12	1/7/88
Street

MR DAVIES:  No, but one cannot be comfortably satisfied the

other way. The point I am really making, Your Honour,

is that there may be quite different considerations

under section 117 in considering the new rule from

those which arise under the old rule.

MASON CJ:	Yes.
MR DAVIES:	And that really is the important factor, in our

respectful submission, when Your Honours are

considering whether, in fact, special leave should

be granted. The only other point which perhaps we

should add, is that our learned friend, Mr Bennett,

referred to intercourse, but, in our respectful

submission, intercourse has nothing to do with this

case. As far as I can recall, it was not even argued

on their side before the Full Court of Queensland.

There is not the slightest suggestion that either

Mr Street or Mr Robertson are prevented from coming

into Queensland. The question is whether, when they

do come into Queensland, whether they can appear

before the Supreme Court of Queensland without being

admitted and complying with the admission requirements.

Indeed, the only other thing perhaps I should say, with respect to trade and commerce, that their

complaint really seems to be not to the residential

requirement but to the requirement that they be

admitted here at all, because if they are admitted

here, of course, they can appear in cases which can
have no possible interstate connection at all -there

cannot be - in cases where there may be no retainer

interstate as well as no performance of the duty
interstate. In other words, they can appear in

Queensland, on a retainer given in Queensland in

respect of a Queensland case, once admitted. So,

in our respectful submission, section 92 really has

nothing to do with this case and, so far as section 117

is concerned, different considerations apply to the

old and the new rule.	They are our submissions, may
it please the Court.

MASON CJ: Thank you, Mr D~vies. Yes, Mr Robertson.

MR ROBERTSON:  May it please the Court, Mr Hampson did not

refer the Court to the most important rule of them
all, which is rule 17. Can I take the Court to that
provision? Rule 17 sets the condition precedent

for admission as a barrister to the Queensland Bar.

It provides:

No person shall be entitled to be admitted as a barrister until he has received the

certificate of the Board in Form 1.

Now, if YourHonours turn to Form 1, which is the

first form in the schedule, Your Honours will see

that the Chairman of the Barristers' Board must

BlT6/5/VH	13	1/7/88
Street	1/7/88

certify that the applicant for admission:

has complied with the Rules relating to the admission of barristers to practise

in the Supreme Court of Queensland.

For so long and whilst ~ver that form is withheld from me by the Barristers' Board, on the basis that I do

not fulfil the requirements of the rules for the time

being, in my respectful submission, my admission is

a live matter in the Supreme Court of Queensland

and a proceeding capable of removal to this Court

pursuant to section 40 ofthe JUDICIARY ACT. It is

clear, with respect, that the relevant ~ule to which the Barristers' Board must direct its attention when

considering whether to issue a form 1 is the rule

existing at the time. My application for admission

has remained on foot since early 1987 and is alive

today; it has not been withdrawn. I am, in those

circumstances,	entitled to admission pursuant to
the rules as they are presently existing.	My

application for removal, as Your Honours will see,

is in perfectly general terms and is not affected

one way or another by the amendments to the rules.

WILSON J: But, Mr Robertson, you are not entitled to a

removal as a matter of right.

MR ROBERTSON:	Indeed, Your Honour.
WILSON J:	Mr Hampson did not, as I understood him, argue that
the matter was not capable of removal. His submission
went to the merits of cause as to whether it should,
in the discretion of the Court, be removed.
MR ROBERTSON:	Indeed, and it is to that matter to which

my submissions have been directed in reply to

Mr Hampson's proposition that no cause exists because

it is only a question in relation to the old rules

which would affect two barristers and, in my

respectful submission, it is a question in relation

to the new rules by reason of the requirement of

rule 17 of the Rules of the Barristers' Board. In

relation to the point Mr Davies made concerning the new
rule not being a concealed residential requirement,

that, of course, is a matter of debate. We certainly

do not concede it and there is authority in the

European Court of Justice under a similar provision

to section 117 of our CONSTITUTION which has found
that such a provision is indeed a concealed

residential or nationality requirement.

MASON CJ:  A provision of this kind in the new rules.

MR ROBERTSON:  Indeed, Your Honour. The case is

ORDER DES AVOCATS AU BARREAU DE PARIS V KLOPP,

(1985) 1 QB 711. Could I hand up copies of that decision

and could I also hand up the predecessor to it,

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THIEFFRY V CONSEIL DE L'ORDRE DES AVOCATS A LA
COURT DE PARIS, which sets out the relevant provisions

of the EEC Treaty. If Your Honours would go first to
the headnote of THIEFFRY's case, Your Honours will

see the EEC Treaty provisions set out in article 52

which provides that:

'' ..... restrictions on the freedom of

establishment of nationals ofa member state

in the territory of another member state

shall be abolished by progressive stages .....

Freedom of establishment shall include the

right to take up and pursue activities as

self-employed persons.·~ ... under the conditions

laid down for its own nationals by the law

of the country where such establishment is

effected.

This provision has been construed as a non-discrimination

clause by the European Court of Justice. In THIEFFRY's

case Your Honours will see from the headnote that

the appellant, who was a Belgian national, had

qualified and practised as a lawyer in Belgium:

He later settled in France, where, having

obtained university recognition of his -

Belgian doctorate degree in law and -

he passed the qualifying examinations

for the profession of advocate. However,

the appellant's application for membership

of the Paris bar was rejected ..... on the

ground that he did not possess -

the requisite degree - the	Parisian degree, that is -
as required by French law.	He appealed and the
European Court of Justice:

Held, that, when a national of one member

state, desirous of exercising a professional

activity ..... had obtained a diploma in

his country of origin which had been recognized

as an equivalent qualification by the competent

authority of the country of establishment - may, even in the absence of specific directives, be

entitled to rely upon article 52 as removing the restriction from practice. KLOPP's case took it

one step further. Klopp was a German advocate who

sought to practise at the Paris Bar and was refused

the right to practise because, under the Parisian

bar rules one could only have one set of chambers.

The European Court of Justice held that that was a restriction which was, in truth, a concealed

requirement which would have the effect, if not in

form then in substance, of preventing a national

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of another State of the European Economic Community

from practising in the first State. So, Your Honours,

I should add there is some American authority which

is largely to the same effect under the EQUAL

PROTECTION AMENDMENT (14) of the United States

Constitution.-. In our respectful submission, it is very much a live question which I seek to agitate in this Court that, under the new Rules, the

provision in relation to practise is, in truth, a

concealed residential requirement. In any event,

it 'WOU.ld be- our submission that, on a true construction

of section 117 of the CONSTITUTION, the criterion

of operation of the law which is sought to be impugned

need not be a residential requirement. So it need

not show in its face discrimination on account of

residency.

MASON CJ: Mr Robertson, you concede, do you, that your

application is to be governed by the amended rules,

not by the rules in their original form?

MR ROBERTSON:  Yes, Your Honour, that is so. As I understand,

that was the proposition Mr Bennett put as well.

MASON CJ:	Yes. Yes, Mr Bennett.
MR BENNETT:	If Your Honours please, there are four points.

First, it is important to realize that there is no

significant difference in effect between the old

rule and the new rule. It is true that one talks

of residence and one talks of principal place of

practise, but it is hard, without conjuring up

whimsical examples to imagine a barrister who

has either and not the other of those qualifications.

I suppose one could imagine a barrister resident

in Tweed Heads who practised principally in Queensland.

But, apart from that example, it is almost impossible

to imagine a case of a person who was resident in

Queensland and practised principally out of Queensland,

or resident somewhere else and practised principally
in Queensland.	One could imagine it, but it would

be highly unlikely.

(Continued on page 17)

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MR BENNETT (continuing): So, the reality is that the rules

do exactly the same thing. The difference is one

of form and we would propose to submit in due

course that what one really has is a colourable

evasion of section 117, particularly bearing in

mind the timing of the amendment.

The second matter is that, of course, if it

be held that the amendment is retrospective

in so far as it deals with the question of the

condition admission or full admission and so on,

then, of course, it would arise directly in this

case.

Thirdly, my learned friend submits that the

may well be that if matters emerge in the course of that application, that there would then be a

appropriate course is to make a fresh application.

further amendment trying some other means of

avoiding the consequence which is sought to be

avoided by these rules. We would submit that the

primary matter to be litigated in this Court is

a broad question which will arise whatever form

is adopted by the local regulation. We would

submit for that reason again, this case will decide the

issue, and as I have demonstrated in-chief, all the

arguments except one minor argument - the narrow

argument under section 117 and one fairly unimportant

argument are equally applicable, certainly the two

major arguments are.

Finally, if Your Honours were against me on

that, and if Your Honours were of the view that

it was appropriate for the matter to be tested

in a form which enabled the new rule clearly to be

before the Court, we have prepared a statement of
claim, which has not, of course, been issued or

served, but of which we have multiple copies here, the effect of which is simply to say, I am a New South

Wales barrister; I want to be admitted in Queensland;

I cannot because of these rules; they are invalid

and seeking declarations of invalidity. If

Your Honours were of the view that such a statement

of claim would cure the difficulty, we would seek

that the matter stand down and that the statement

of claim be filed and served and then the application

reconsidered later today in the light of the fact

that it could be heard with a demurrer to that

statement of claim. But, we would submit, that is

quite unnecessary. It is merely put as a fall-back

position if Your Honours regard the procedural

objection is significant and if Your Honours regard

that as a matter that would solve it.

Finally, in relation to what Mr Robertson said,

I should perhaps add that there is also some

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American authority on a constitutional provision which is in different terms. There was a number

of recent cases in which the Supreme Court has

upheld the fundamental right of an attorney

to be admitted in another jurisdiction

notwithstanding residence. But I will not

trouble Your Honours with those on the leave

application. The reason I mentioned them is to

show that, as in the case of Europe, this issue

is an important issue being considered by the
highest courts of other jurisdiction. If Your Honours

please.

:MASON CJ: Yes, thank you, Mr Bennent. The Court will

consider its decision in these two matters.

AT 11.46 AM THE :MATTER WAS ADJOURNED SINE DIE

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