Street v Queensland Bar Association & Ors; Street v Queensland Bar Association & Ors; In the Matter of Robertson

[1989] HCATrans 52

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B32 of 1988

B e t w e e n -

ALEXANDER WHISTLER STREET

Plaintiff

and

QUEENSLAND BAR ASSOCIATION

First Defendant

QUEENSLAND BARRISTERS BOARD

Second Defendant

THE ATTORNEY-GENERAL IN AND FOR THE STATE OF QUEENSLAND

Third Defendant

Case stated

Office of the Registry

Brisbane No B45 of 1987

B e t w e e n -

ALEXANDER WHISTLER STREET

Applicant

Street(2)

and

QUEENSLAND BAR ASSOCIATION

First Respondent

QUEENSLAND BARRISTERS BOARD

Second Respondent

THE ATTORNEY-GENERAL IN AND FOR THE STATE OF QUEENSLAND

Third Defendant

Application for special leave to

appeal

ClT 2/1/PLC 246 16/3/89

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

And in the matter of -

TIMOTHY FRANK ROBERTSON

Case stated

MASON CJ

BRENNAN J

DEANE J

DAWSON J

TOOHEY J

GAUDRON J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 16 MARCH 1989, AT 10.0J AM

(Continued from 15/3/89)

Copyright in the High Court of Australia

MASON CJ:  Yes, Mr Davies.

MR DAVIES: If it please the Court, before I leave the question

of intercourse, may I just make two further submissions

with respect to the matter which Your Honour

Justice Deane raised yesterday. The first is

that there was always a difficulty,evidenced by

MARRICKVILLE MARGARINE and also the McARTHUR

line of authority and one of our learned friends ' .

yesterday read from the Judgment of Your Honour

ClT 2/2/PLC	247	16/3/89
Street(2)

the Chief Justice in AUSTRALIAN COARSE GRAINS,

in identifying where interstate trade commenced

and ended.

No such difficulty arises in identifying

where interstate movement begins and ends or interstate

communciation begins and ends. But once you start

saying that intercourse is something more than

that then that sort of difficulty arises.

The other submission I would like to make

is - and we made it in a sort of a fashion yesterday

that there may be something which in terms is an

imposition upon some Act either before or after

movement but which is, in truth, an imposition

upon movement. That is not the case merely

because most people affected by it will be engaged
in movement or that the activity which is penalized

motivates the movement and we would submit, with

respect, that it is really only the latter which

would ever be the case here.

Can I then pass to trade and commerce,

Your Honours, and our first submission in that

respect, which is set out in paragraph 6 of our

outline, is that a member of the learned professions,

in carrying on his practice, is not engaged in

trade and commerce. Can I hand up to Your Honours

some books of, in effect, definitions?

(Continued on page 249)

ClT2/3/SDL	248	16/3/89
Street(2)

MR DAVIES (continuing):  Your Honours, they commence with,

as Your Honours will have seen, Samuel Johnson's

definition of "trade" and they then set out

some cases which were decided before and about

1900.       The purpose is not simply to show that

a barrister was not thought t0 be engaged in

trade and commerce in 1900.- that seems almost
to have been conceded in our favour.- but to

really also show that there were, at that time,

two meanings of "trade", a primary and a secondary

meaning, and that one of them really seems to

have developed into the modern meaning of commerce

and the other into the modern meaning of trade.

Could I take Your Honours to Samuel Johnson's

definition of "trade"; a primary and a secondary

meaning. The primary meaning was:

Traffick; commerce; exchange of goods for other goods; or for money.

And the secondary meaning was:

Occupation; particular employment whether

manual or mercantile, distinguished from

the liberal arts or learned professions.

The first of those really seems to have developed into the modern meaning of commerce, or so the

Oxford English Dictionary seems to show and
the second of those into the modern meaning

of trade, although there is, some

overlapping, of course, between trade and commerce.

If Your Honours go to the next page you

will see the Oxford English Dictionary definition

of '·'trade" and it is really the fifth meaning

which is the relevant one here in the third

column:

The practice of some occupation, business,

or profession habitually carried on, esp.

when practised as a means of livelihood

or gain; a calling; formerly used very

widely, including professions; now usually
applied to a mercantile occupation and to

a skilled handicraft, as distinct from a

profession -

that earlier meaning, I should say, of including

professions goes back well before Samuel Johnson's

time. And Your Honours will see just before paragraph b., Lord Denman in All Year Round:

Every trade .. is a business, but every business

is not a trade. To answer the description,

it must be conducted by buying and selling

which the business of keeping a lunatic

asylum is not.

C 1T3/1 /ND 249 16/3/89

Street(2)

MR DAVIES (continuing):  Can I then hand up to Your Honours

theOxford English Dictionary supplement -1986

supplement, with respect to trade, which indicates

that materially there is no difference from that

meaning and also the Oxford English Dictionary

definition of "commerce". We have not reproduced

the 1986 supplement with respect to commerce because

there does not seem to be anything material in it.

Yours Honours will see from that last hand-up the

definition of "commerce", that it seems to adopt

the primary definition of Samuel Johnson in

paragraph 1:

Exchange between men of the products of nature and art; buying and selling together;

trading; exchange of merchandise, esp.

as conducted on a large scale between different

countries.- or districts; including the

whole of the transactions, arrangements,

etc., therein involved.

That mc1y _well, we would submit,--

explain why the founding_ father thou~ht

it necesisary to include both words, ''trade" and

"commerce" to include both the primary and secondary
meaning of trade in Samuel Johnson's dictionary.

The cases which we have given Your Honours up to - at about 1900 - I certainly do not want to take

Your Honours to them in detail, and some of them

not at all. If Your Honours go back to the index,

the case numbered 3, HARRIS V AMERY, is simply

a case in which it was said that banking was not

a trade, and I do not want to take Your Honours

to that.

Number 4, CHARTERED :MERCANTILE BANK OF INDIA V WILSON: can I just take Your Honours to that briefly

because it shows an adoption of Samuel Johnson's

definition. It is number 4 and it is at page 120

in the judgment of Baron Pollock.

(Continued on page 251)

ClT4/l/MB	250	16/3/89
Street(2)

MR DAVIES (continuing):  Your Honours will see just above

the middle of that page a reference to the fact
that he says:

I have found the definition in Johnson's which seems to me to be more near the spirit in which I am construing the

words. It is the second meaning which
he gives, in which trade is described as

an "occupation -

and then sets it out -

That is a very fair expression of the

meaning of the word in common parlance,

when you are speaking of whether a person

exercises a profession or whether he carries

on trade; and in the same way, whether

a person occupies a house for the purpose

of dwelling therein personally, or

whether he occupies it for the purpose of

carrying on a trade.

Then just going back to the index again,

Your Honours, the next case GRAINGER & SON V GOUGH,

I will not take Your Honours to it. Can I give

Your Honours the page references, page 336 and

especially at pages 345 to 345 where Lord Davey

adopts Johnson's first meaning as a meaning of
trade, he put it, in the largest sense, and then

the next case, Your Honours, COMMISSIONERS OF

TAXATION V KIRK, is Lord Davey again and could

I just take Your Honours to that briefly to

page 592 where, in the middle of the page

His Lordship said:

The word "trade" no doubt primarily means

traffic by way of sale or exchange or

commercial dealing, but may have a larger

meaning so as to include manufactures.

The last of those cases about 1900, FARMER V SNOW,

I will not take Your Honours to that, but it is

simply a dictum which says trade is buying and

selling. So, it does seem that in 1900

Samuel Johnson's definition was generally accepted

as the meaning of trade and, as we have submitted,

it may explain why both were included in trade and

commerce, and the modern definitions in the

dictionary, in our respectful submission, show

that they are still the meanings of trade and

commerce and that in the most modern dictionary

it is not suggested that they include the

professions.

ClT5/l/HS	251	16/3/89
Street(2)

MR DAVIES (continuing):  Now, we certainly do not suggest

that the meaning of trade and conrrnerce is frozen

in time as at 1900 and, if one accepts our

learned friend, the Solicitor-General for South

Australia's submission, that trade and conrrnerce

has its popular meaning, we would submit, with

respect, the fallacy of saying that, therefore,

it includes the professions and, certainly, the

profession of law, was really exposed by

Your Honour Justice McHugh's question as to

whether the ordinary person would understand his

doctor to be in trade and conrrnerce.

My learned friend, the Solicitor-General for

South Australia, had defined trade and conrrnerce

as being, "any person who sells his services for

profit".

McHUGH J:  Well, on that theory, a jockey would be a conrrnercial man.

MR DAVIES:  Yes, quite. But our learned friend was really

forced to answer Your Honour in a circular way by saying, "Yes, people would understand their

doctor to be in trade and conrrnerce, if you explain

to them first that any person who sells his

services for profit is in conrrnerce". And, of

course, that circularity, in our respectful

submission, exposes the fallacy of the conclusion

that - - -

DAWSON J:	The difference is, is it not, that in trade, one maximizes the profits, whereas in a profession,
one does not necessarily maximize the profits, but
is a member of a calling which regulates itself?

MR DAVIES:  Quite, it is, indeed. I accept that, Your Honour.

So, in our respectful submission, there is no

basis for the conclusion that the words, "trade

and conrrnerce" were intended to include, or today

include, the practise of the learned professions and

certainly not the law.

Your Honours, the last two cases in that

document I handed up to you have been discussed

during the course of argument yesterday and today,
the first of· them is a decision of Mr Justice Lee

in the Supreme Court of New South Wales and the

second is a decision :of Mr Justice French in the

Federal Court. They concern materially similar

statutory provisions; the New South Wales

provision was the CONSUMER CLAIMS TRIBUNAL ACT,

and the provision considered in BOND CORPORATION

was the TRADE PRACTICES ACT.

ClT6/l/JH	252	16/3/89
Street(2)

MR DAVIES (continuing):  The Judges reached opposite conclusions:

Mr Justice Lee, that a solicitor was not engaged in

trade; Mr Justice French, that an engineering

corporation - that is a corporation of professional

engineers - was; but in each case, of course, there

was a definition of "services" which specifically

included services of a professional nature and

that, of course, makes an important difference between

that sort of situation and the sort of situation we

are concerned with here.

Your Honours, further and as an alternative

submission, we submit that,in any event, a barrister

in conducting cases in court is not in trade and

commerce because of his overriding public duty.	He
is an officer of the court assisting in the
administration of justice.	Can we refer Your Honours

briefly to two statements to that effect, both in

GIANNARELLI, (1988) 62 ALJR 611, and the first of

them is in the judgment of Your Honour the

Chief Justice at page 612 in column 2 in the last

paragraph and going over to the following page.

I do not wish to read it and Your Honours are no

doubt familiar with it.

The other is in the judgment of Your Honour

Justice Brennan at page 623 in column 1 commencing

about letter F over to column 2 again at about letter F.

Your Honours, our learned friend - we should add, of course,

that, in our respectful submission, not only is he not

engaged in commerce but his engagement for that

purpose cannot be trade and commerce, and can we

in that respect mention our learned friend, Mr Bennett's

argument that he might be because his clients are

engaged in trade and commerce.

(Continued on page 254)

C1T7/1/BR	253	16/3/89
Street(2)

MR DAVIES (continuing): But, of course, as some of Your Honours

have said, a barrister engaged in family law or

criminal law does not have commercial clients and

the question cannot surely depend, in our respectful

submission, on whether the clients happen to be

themselves engaged in trade and commerce.

Our next alternative submission, Your Honours, is

that a New South Wales barrister practising before
the Supreme Court of Queensland is not engaged in

interstate trade and commerce. There is no interstate

service; the service is provided wholly interstate and,

again, may we answer our learned friend, Mr Bennett's

submission, that the out-of-chambers fee is a fee for

crossing the border. With great respect, it is nothing

of the sort. It is not a fee paid for any movement

at all. It is a fee for being out of chambers,

wherever that might be.

Finally, we submit, in this respect, as our last

alternative, that the rules do not discriminate

against any interstate trade. They do not preclude a

barrister from obtaining admission as it is asserted

unless he practises principally in Queensland. It

only precludes those who apply pursuant to the rules

we have referred to yesterday, (3), (4) and (5),

wherever they come from. If they discriminate in

requiring a principal place, it is against those who

apply by reason of prior admission elsewhere rather

than those who are engaged in any - or proposed to be

engaged in any interstate trade or commerce and,

if there werea burden on any trade it would be a

burden on the New South Wales barrister's

New South Wales practice, not on any interstate practice;

that is, by restricting his practice in New South Wales.

Of course, it applies equally to delivery of a

brief by a Queensland solicitor to a New South Wales
barrister while he is in Queensland; to a Queensland
barrister to a New South Wales solicitor while he is

in New South Wales, or to a New South Wales solicitor

to a New South Wales barrister to appear in a (Continued on page 255)

Queensland action.

ClT8/1/VH	254	16/3/89
Street(2)

MR DAVIES (continuing): Your Honours, we adopt our learned

friend, the Solicitor-General for South Australia's

submissions with respect to the absence of purposes

being a relevant factor in section 92 as with

section 117 and, in any event, we make the

submissions which we made with respect to

section 117 in that respect, that the history

of what took place with respect to the earlier

rule, both in Court and in extrajudicial statements

can be of no relevance to any question of purpose

as to the current rule. And, of course, we would

say that if purpose is relevant you determine

that by looking not just at this rule but looking

at the rules as a whole.

Our final submission, Your Honours, is that

it was put against us that section 92 can apply

to laws which preclude people from another State

from engaging in trade or commerce within a State.

In our respectful submission, that cannot be correct.

It is correct, of course, that section 92 with

respect to trade and commerce has primarily a

protectionist purpose but to do that it must

discriminate, in our respectful submission, against

trade which is interstate trade. You therefore

must identify something as being interstate trade

and say that it discriminates against us.

They are our submissions, may it please

the Court.

MASON CJ:  Thank you, Mr Davies. Mr Hanson?

MR HANSON:  May we hand up copies of our submissions, if

the Court pleases.

MASON CJ:	Yes.
MR HANSON:	It is in two parts. We deal in one document

with the special leave application and in a separate

document with the other issues. (Continued on page 256)

255   16/3/89

Street(2)

MASON CJ: Thank you.

MR HANSON:  Your Honours, if we could commence with

Mr Street's special leave application, all we

would add to what we have submitted in writing

is this submission that nothing said in COLE

V WHITFIELD renders the reasoning below wrong.

Your Honours, what we want to say in Mr Street's

case then, beyond the special leave application,

will cover Mr Robertson's case. There is not

a lot we feel we can usefully add to what has

been said but there are a few points we would

like to make.

If we could ask Your Honours to look once

again at HENRY V BOEHM, firstly at the judgment

of the Chief Justice at 489. We seek to demonstrate

that the majority judgments require a focusing
on the terms themselves and the immediate operation
of the statutory provision more or less in a

vacuum without regard for the personal circumstances

of the out-of-State resident. We seek to

demonstrate that point by looking firstly at
489, the Chief Justice, at the top of the page,

says this·- the second sentence:

At least prima facie therefore being a resident

of another State must be made by the law

the basis of the imposition or creation
of the disability or discrimination. But,
of course, the necessary direct effect of

the operation of a statute or statutory

provision according to its true construction

must be regarded in considering whether

the law does make residence out of the State

a criterion of its operation. Here, quite

clearly in my opinion, the rules do not

in terms make the fact of being an out-of-

State resident the basis of their operation.

He goes on then to consider the submission for

the resident of Victoria there that he would

have to cease residing in that State and then,

at about point 6 of the page, the last sentence

in that middle paragraph, His Honour says:

(Continuing on page 257)

C lTl 0/1 /ND	256	16/3/89
Street(2)

MR HANSON (continuing):

The rules themselves make no distinctions

between those who may happen already to be

resident in South Australia and those who

do not, where each as qualified elsewhere

than in South Australia.

Mr Justice Menzies at 491, at the top of the page,

the first sentence on line 2:

It is the operation of the law to which

attention must be paid, not to the remoter

consequence of complying with the law that

operates uniformly -

and he returns to that topic on 492. The last

paragraph on 492 is in these terms:

The contention to which counsel for the

.plaintiff returned again and again in the
course of argument is that the rules would
require the plaintiff, a resident of Victoria

to go to South Australia and reside there,

whereas they would operate differently if he

were already a resident of South Australia.

It is not, however, any part of the operation

of the rules that a person seeking admission
must give up his residence in another State
and go to South Australia, notwithstanding

that, in certain circumstances, a remote

consequence of the rules would mean a change

of residence. A resident of Victoria might,

for instance, have lived in South Australia
for a month before he decided to make an application

for admission there. In such a case, although

still a resident of Victoria, the applicant

would be in exactly the same position as if

he were a resident of South Australia. He

would have to stay there for a further fifteen

months.

Mr Justice Gibbs at 498, at about point 2 of the

page, a sentence connnencing:

It was submitted that a resident of Victoria who

wished to satisfy the rule would have to abandon

for the time being his residence in Victoria

whereas a resident of South Australia would

merely continue his residence in that State,

and that there was accordingly a discrimination

based soley on residence. I cannot agree with

this submission. In my opinion it is not right
to say that the rule would require the Victorian
to abandon his permanent residence in Victoria;

what it requir~s is his physical presence in

South Australia for the continuous period of

three months. Exactly the same requirement

is made of a South Australian resident.

ClTll/1/MB	257	16/3/89
Street(2)

There follows a discussion of two other rules

and at about point 8 of the page, a new paragraph

cormnencing:

In my opinion no discrimination is effected by

r.28(1). That sub-rule in itself effects no

discrimination at all but imposes a condition upon the admission of all to whom it applies,

whether resident in South Australia or not.

Our submission is that what is to be derived from

those passages is a focusing upon the direct

and irmnediate operation of the rule without regard to the personal circumstances of the person being

considered. Your Honours, at paragraph 3 of our

submissions we then seek to apply that to the

present problem by seeking to analyse the meaning

of the rule under challenge. At (i) we

submit the rule in itself by its terms, of course,

says nothing of residence. In (ii) we say that

the requirement has the effect of requiring all applicants to reside in Queensland. Now, (iii)

is a further step down the chain of consequences

and (iii) is in these terms: that in order to
comply with the requirement then those who reside
outside Queensland must move there and those who

reside there must not move away.

(Continued on page 259)

ClTll/2/MB	258	16/3/89
Street(2)

MR HANSON (continuing):  Our submission is that only when

the analysis proceeds to the third step is it

possible to discern some discrimination. Our

objection to that reasoning is that the third step

looks at the remoter consequences of complying

with the requirement and goes beyond the direct

effect of the operation of the rule and is

therefore outside the scope of section 117.

We would add that taking the third step can lead

to absurd results, as was sought to be

demonstrated by the learned Solicitor for New

South Wales yesterday - I think it was the

Solicitor for New South Wales who had contrasted

the situation of a man in Cairns who wanted to

take a hotel in Coolangatta with a man from Tweed

Heads. They wanted to do the same thing.

Your Honours, in our submission, the majority

1n HENRY V BOEHM would stop the inquiry at II

of our analysis and would ignore the personal

circumstances of those who must comply.	I pass
on then to section 92.	Our first submission is

that a barrister in court is not engaged in trade

or commerce. We begin with the proposition that

the court itself, of course, is not so engaged.

We rely upon what has been said in GIANNARELLI's

case and what has been said about that this

morning, of course, by Mr Davies. We would add

this; according to the ordinary usage of language

it sounds incongruous to speak of a barrister

being engaged in trade or commerce,at least when

appearing in court. While the distinctions between

professions and other occupations are fading with

the passage of time, the time has not yet arrived

when it sounds a natural and comfortable use of

language to say that a barrister engages in trade

or commerce in conducting litigation.

We submit further there is no authority to support the proposition. The one that came

closest to which Your Honours have been referred

was the GOLDFARB case, the 1975 case. If we could

ask Your Honours to look again at that case, that

is the one in 421 US. If Your Honours would look

at page 787. At the foot of page 787 the court

says - this was the passage relied upon:

Whatever else it may be, the examination

of a land title is a service; the

exchange of such a service for money is

"commerce" in the most common usage of

that word. It is no disparagement of the

practice of law as a profession to

acknowledge that it has this business

aspect -

and then there is a quote from the Act -

C1Tl2/l/HS	259	16/5/89
Street(2)

In the modern world it cannot be denied that the activities of lawyers play an important part in commercial intercourse,

and that anticompetitive activities by

lawyers may exert a restraint on commerce. Your Honours, there are two things we want to say

about that passage. Firstly, of course, it is
confined to the activities there under scrutiny

and the court expressly says so in the

footnote which commences at the foot of page

page 788 that no other features of the professions

are meant to be embraced by the remarks in that

case and will be treated and scrutinized when the

occasion arises. That is the whole of footnote 17.

The concluding sentence of the footnote:

We intimate no view on any other

situation than the one with which

we are confronted today.

Of course, what the court was considering was

services for work which we traditionally regard

as solicitors' work. So, in short, the case says

nothing of the traditional conduct of a barrister's

practice and certainly says nothing of the conduct

of litigation in court by a barrister. So our submission is that that case is scant authority

for the proposition. We rely upon the authority

against the proposition, that is HOLMAN V DEOL

to which Mr Davies has recently referred

Your Honours this morning.

(Continued on page 261)

ClT12/2/HS	260	16/3/89
Street(2)

MR HANSON (continuing):  The next proposition we seek to

put is, assuming a barrister is, in conducting

litigation, engaged in trade or commerce, that there is no interstate component in it when he

comes to Queensland to conduct a court hearing.

We make that proposition in paragraph 2 of our

written submissions, much of that has already been

covered; could we add this? The cases dealing
with goods and the sale, transport and carriage of

goods provide no useful analogy; the cases

dealing with the manufacture of goods provide a
useful contrast. And the manufacturing cases are
said to be to this effect, that there can be no

trade in goods until they come into existence.

In our submission, the present case is the

antithesis of the manufacturing cases and, could

we put it this way? There can be no trade or

commerce in services until the service is

rendered. Before the service is rendered, there
is nothing but intercourse for the purpose of
rendering that service. That intercourse is, of

course, itself protected. Although the

intercourse, itself, is an interstate transaction,

it cannot endow the subsequent rendering of

services with the character of an interstate trade

or commercial transaction.

BRENNAN J:  Does that mean that a law of Queensland, which

says, "That no earth-moving contractor, wno does

not have his principal place of business in

Queensland, shall engage in earth-moving in
Queensland", is not a law which offends

section 92?

MR HANSON:	Elsewhere? Or<in Queensland?
BRENNAN J:	He cannot engage in earth-moving in Queensland.
MR HANSON:	In Queensland.  I do not know, Your Honour.

Of course, earth-moving would be trade.

BRENNAN J:	Necessarily geographically.~ ... ?
MR HANSON:	Trade, yes.  Well, what does he do? He

renders services in Queensland. If he had to bring

his earth-moving equipment to Queensland in order

to render the services, that might be a burden on

an interstate transaction If he is hired by a

Queenslander and lives in New South Wales, it will

be necessary for him to bring his earth-moving

equipment, I suppose, and that would be a burden

upon that transaction.

In the case of a barrister, as somebody said

during the debate here, he brings nothing across

the border except himself and his ability. He

ClT13/l/JH	261	16/3/89
Street(2)

comes here and then does something with his

ability. If the earth-mover does not need to

bring his equipment and comes here and hires the

equipment and then performs in Queensland, in

our submission, there is no interstate element

in the engagement other than his physical,

personal travel from New South Wales which would

be protected.

Your Honours, there was an argument put for

South Australia which suggested that although the

barrister in Queensland was not engaged there in

trade or cormnerce, somehow it was a burden upon

his interstate transactions. In our submission,

that submission ignores the requirements that

there must be identified some interstate trade or

cormnerce against which the discrimination can be

seen to operate. If you cannot identify some

interstate transaction which is trade or cormnerce,

well then, the question of discrimination just

does not arise; the question of protection just

does not arise. And it seemed to us, with respect,

that the argument did not want to identify some

interstate element within Queensland and yet
claim the benefit of the protection of section 92.

There has to be some interstate element with which

you contrast the local element; the local trade

to the same effect. Then, there has to be the

discrimination of one to the protection of the

other... .Unless- you identify something that can

be labelled "interstate", it is difficult to see

how the proposition can be made out.

Your Honours, those were are our submissions

at paragraph 2 on a barrister not being engaged in
interstate trade within Queensland, assuming it

is trade and cormnerce.

(Continued on page 263)

ClT13/2/JH	262	16/3/89
Street(2)

.MR HANSON (continuing): There is a further submission to the

same effect at paragraph 3. My learned friend,

Mr Davies,has already dealt with that in part. It

looks at the problem from a different point of view

by looking at the way in which the barrister's

practice is alleged to have been burdened. You

look at the practice that he maintains in New South

Wales or wants to maintain there and ask, "How is

it burdened?", and the answer is, "There is no

interstate element to it". You look at the practice

he wants to establish in Queensland and for the

reasons we have already advanced above, again

there is no interstate burden.

Your Honours, we pass on then at paragraph 4

to examining whether a barrister can claim to be

engaged in trade or conunerce because his client is so

engaged. .And we put these propositions: that a

litigant who appears before a court hearing is not

engaged in trade or conunerce although, of course,

there may well have been a conunercial transaction

which brought him to court.

what a court hearing consists of, in our submission, is a plaintiff or an applicant appealing

to the court for relief, asking the court to exercise

its powers in his favour and the court in responding

to that request exercises its judicial powers. The

court could not be said to be engaging in trade or

conunerce in so doing. Well, can it then be said

that the litigant who puts the request to the court

is engaging in trade or conunerce - and our submission

is, no.

It may be said that because we have the adversary

system, his opponent is there making counter requests

or opposing what he seeks. It is all an extension of

the commercial dispute that took them there. Our

submission is that that does not necessarily support

the proposition. The opponent may not even be there.

The applicant can seek relief in the absence of the

opponent, of course, subject to requirements as to

notice, but the court's function is simply to grant

or refuse the relief prayed for and that transaction

cannot be labelled as an extension of the trade and

commerce that took the parties, the trading parties,

into the arena.

So we put the submission there that even if

there is a fetter upon the interstate litigant's

right to take his barrister to an interstate case,

there is no interstate trade or commerce fettered in

this way.

C1T14/1/BR	263	16/3/89
Street(2)

MR HANSON (continuing): It is not a fetter upon the litigant's

trade and corrnnerce. This is one of the submissions

put for Mr Street in the stated case: that the

litigant's right to interstate services is fettered.

That could only be so if, in going to court, the litigant is there engaged in trade or commerce

and we seek to meet that in paragraph 4.

In paragraph 5 we go to the question of intercourse.

I do not think there is anything we can usefully add

to what has been said on this topic already. I pass
on to paragraph 6. It deals with a proposition

contended for in paragraph 6(d) of the stated case.

I do not think it was argued. That was the

proposition that the phrase, "trade, corrnnerce and intercourse is an hendiadys." It is not pressed.

We come then, finally, to paragraph 7 and this is the question of control. Much has been made of

the approach of the American courts and could we

seek to distinguish the approach of the American courts

on this basis: that the American corrnnents are made

in a different context; that is the context

of balancing the rights of the lawyers as conferred

by the privileges and immunities clause,balancing

those rights which are expressed in positive terms

against the interests of the local bar association.

That is the balancing process in the American cases.

Here we are concerned to "Weigh the protection conferred

by section 92 against the right of the Queensland

court to exercise reasonable control.	The balancing
processes are different.	We would not deny the force

of the remarks of the American cases; but the

balancing process is not the same,but we add this:

that it is nothing to the point that other States

have not deemed it necessary to claim similar control

if the measures are reasonable.

BRENNAN J:	What is to be balanced, Mr Hanson?
MR HANSON:	If this is said to be a reasonable control under

section 92, Your Honour, that is the argument we are - - -

BRENNAN J:  What is said to be reasonable control?

MR HANSON: Requiring out-of-State practitioners to practise

principally in Queensland.

BRENNAN J:  You rest it completely on the disciplinary power of

the Court, do you?

(Continued on page 265)

ClTlS/1/VH	264	16/3/89
Street(2)

MR HANSON: No, we have put a second proposition there. It

is expressed in these terms, in general, not

universally, of course; there could be more

confidence in the courts and the litigants themselves
could be better served by barristers practising

principally in Queensland on the basis that they

would be expected to be more familiar with the
law and keep abreast of the law on the basis that
there may be some barristers from interstate who

may very infrequently appear out-of-State and

may find it quite a task which, obviously, they

should apply themselves to but they may find it

a task to bring themselves abreast of the current

law when they receive a brief to come to Queensland,

somewhat infrequently, in these days when the

law changes often and substantially. Those who

are on the local scene do not have that problem.

So we simply put the proposition that the

litigants, in that regard, would be better served

by somebody who is principally concerned with

the local scene.

If that is seen, then, to be a reasonable imposition of a standard, well then what is being balanced

is that right of the State court to impose that

standard against the argument that it is a fetter

or a discrimination against the interstate barrister.

There is no balancing of rights, as

Your Honour asked the learned Solicitor for

New South Wales yesterday what right of the New

South Wales Bar does he assert? One of his paragraphs

asserts a violation of the rights of New South

Wales barristers and Your Honour asked for some

cases are.

particulars and there was not much forthcoming.

BRENNAN J:  How does your argument stand against the text

of the rule itself? If one has a person qualified

under paragraphs (3), (4) or (5) to admission,

they may be admitted and commence practice
immediately without any antecedent familiarity

with Queensland law provided they have an intention

at that moment to practise principally?

MR HANSON:  True, Your Honour.

BRENNAN J: Well, if one puts it on the basis of familiarity

with Queensland law, the text of the rule does

not seem to be consistent with the argument.

MR HANSON:  The requirement to remain principally there,

presumably involves a learning and familiarization
process. It means that those who get themselves

once a year are not going to learn a lot. admitted and then go away and come back perhaps everytime they come.

C 1 T 16 /1 / SDL	26 5	MR	HANSON,	16 / 3 / 89
Street(2)

McHUGH J:	How does it come about that after a year they can be trusted to go away and keep up to date?
MR HANSON:	That is a fair enough comment, Your Honour.

Within the year, perhaps, they have familiarized themselves with the general framework of the

local law and statutes that are basically there

and are altered, I suppose, from time to time,

but if you just simply come in once a year without
having gained some familiarity of the framework
of the local scene you are facing something

more of a task than the man who has spent perhaps

12 months there. If the Court pleases, those

are our submissions.

MASON CJ:  Thank you, Mr Hanson. Yes, Mr Greenwood.

MR GREENWOOD:  May it please the Court, it is difficult

to think of something to say at this stage which

has not already been said and, doubtless, very

much better by others and so, in many respects,
I will simply adopt the submission made by them.
For example, with respect to the old rule, I

adopt the submissions made by Mr Davies on behalf

of the Queensland Attorney-General, although

I will say something about the old rule when I

amdeveloping the submission that is mentioned

at the end of my outline which I shall now hand

up.

MASON CJ:  Thank you.

(Continuing on page 267)

ClT17/l/ND	266	16/3/89
Street(2)

MASON CJ:  What is the length of the Bar practice course,

Mr Greenwo·od?

MR GREENWOOD:  Fourteen weeks or one semester.

MASON CJ:  Thank you. Yes.

MR GREENWOOD:	If the Court pleases, a great deal of time has been spent on cases decided in the last century
and on parliamentary debates which concern the old
rule, but it is my intention to spend much more time
on the new rule than, of course, on the old. But
in doing so I would first make this submission, that
if a purpose, an exclusionary purpose, is sought to
be inferred with respect to the new rule it is
unfair to look at that particular new rule in isolation. It should rather be looked at in the
context of the rules as a whole. It is our submission -our first submission is that it cannot
be said of the rules as a whole that they are protectionist and that what one must do is to look at
the different avenues for admission to the Queensland
Bar that they provide for and in broad terms there are two of them. There is the path to admission
which is relied upon by those who hold academic
qualifications gained after examination by one of
the Australian university law schools.and, in our
submission, the rules making provision for people
to be admitted on that ground are by no means
difficult of satisfaction.

On the other hand, of course, there are the

rules that provide for admission for people without

examination on the basis that because they have

been admitted elsewhere they have presumably

satisfied other admitting authorities and that

we should rely on them and dispense with any examinations

before admitting those people to the Queensland Bar.

It is that second category of case, of course, which

this rule, lS(e), addresses.

(Continued on page 268)

C1Tl8/l/MB	267
Street(2)

MR GREENWOOD (continuing): Before dealing with that, might I

first make good my submission that the other category

of case, the interstate resident or practitioner who

seeks admission on the basis of his university

qualification from the University of Melbourne or

Sydney by no means has a difficult row to hoe. The

rules which deal with him are the rules which are

numbered here: 15(d)(2) - and if I might take the

Court to it. Kule 15(d)(2) requires the applicant to:

have obtained a, degree in Law with prescriaed

or approved subjects at a University within the State of Queensland or other Australian University approved by the Board, not being

an honorary degree, and shall have performed

all necessary practical work to the satisfaction

of the Board, and shall have passed ~tage 6

within the meaning of Rule 32.

Passing then to rule 32 - and I will deal with that

rule in more detail later. 32 which provides for

practical instruction is now taken as referring to

rule 25(6) and that is the provision which deals

with our Bar practice course - and I will deal with

that in more detail.

But in sunnnary then it comes to this: that

somebody who has a degree in law must first of all

satisfy the Board as to the contents of his degree;

secondly, he must attend the Bar practice course; and thirdly, he must report certain cases to show

that he understands what, in fact, is going on in a

court. They are the three things that he must do.

Let me take,firstly, the degree in law, and at the outset might I say that because a student has a degree

in law from the University of Queensland at St Lucia,

it does not follow that he comes within this rule.

It has always been the view of the Queensland

Barristers Board that there are certain core subjects which are essential for the proper academic training

of a man or a woman who wishes to pursue a career at

the Bar, and the Board·s view on what are proper core

subjects and the view of the different Queensland

universities are frequently at variance.

(Continued on page 269)

C1Tl9/l/BR	268
Street(2)

MR GREENWOOD (continuing):  In particular, the

University of Queensland puts into its optional subjects which a student does not necessarily have to take in order to acquire

an LLB from Queensland, securities, succession,

conflicts and taxation. So that somebody

corning to us with an LLB from Queensland first

of all has to satisfy us that those subjects are

within their degree. If they are not, then

they have to be topped up. There are different

ways of topping up a degree and they can enrol
as miscellaneous students at the university that
they previously attended or else, if for some
reason that is inconvenient, we will give them

our own examinations and they can attend and

do them.

TOOHEY J:  Mr Greenwood, does the Queensland Institute

of Technology award degrees?

MR GREENWOOD:	Yes, Your Honour.
TOOHEY J:	But I take it it is not a university?
MR GREENWOOD:	It is now, Your Honour.
TOOHEY J:	It is now, is it?
MR GREENWOOD:	Yes.
TOOHEY J:	When it was not what was the position?
MR GREENWOOD:	When it was not its degrees were

acceptable or its qualification was acceptable

and we put in a special rule 7 at that time

which provides that:

He shall obtain the degree of Bachelor

of Arts/Law or the equivalent degree however entitled with prescribed or approved subjects at the Queensland

Institute of Technology, not being an

honorary degree -

and then it continues on.

DAWSON J:  And "approved" in rule 15(2) refers to the degree

rather than the university.

MR GREENWOOD:  Your Honour, that is the way it has been

interpreted and it is a somewhat ba9ly phrased

DAWSON J:  And the degree will not be approved unless rule 16 is complied with.

ClT20/l/HS	269	16/3/89
Street(2)

MR GREENWOOD:  Yes. In fact, what happens is that the

content of the degree is looked at and where

there is some doubt what the Board frequently

does is inquire of the University of Queensland

to find whether, for example, the land law

subject credit relied upon in a particular

degree would be given credit by that university
ad eundum gradum. That, in practice, is the sort
of inquiry that the Board conducts.

(Continued on page 271)

ClT20/2/HS	270
Street(2)

MR GREENWOOD (continuing): Obviously, criminal law is one

subject that gives the Board some problems because

we live in a codified State. So that then is

the approach and what it means is this, that

if Mr Street had come to us, not seeking admission

without examination by virtue of his admission

at another bar but seeking to rely upon the

fact that he had satisfied the examiners of

whichever university he went to, then it would

have been this particular exercise that the

Board would have followed.

It might be said that attendance at the

Bar practice course for the 14 weeks of one

semester, and it involves the student in going

there two nights a week, Mondays and Thursdays,
for three hours each night, it might be said

that that provision imposes at least a residence

for the 14 weeks that the student has to attend.

That assumption is not warranted because, of

course, the Bar practice centre offers its course

to external students as well and there are students

interstate who are qualifying through the Bar

practice course. So that, if Mr Street, for

example, had wished to stay in Sydney and be

an external student of the Bar practice course

there would be nothing whatsoever to have stopped

him from doing that.

Rather than, as it were, give evidence from a bar table on the content of the Bar practice

course and the way that it is conducted, we

have taken the opportunity of having the assistant

director swear an affidavit which was circulated

to my friends at the bar table a couple of days

ago which has been updated now in a modified

version. We did not presume to put it before

the Court without the Court's leave, of course. to put that material before it.

MASON CJ:  What is the affidavit going to tell us?

MR GREENWOOD: It will tell you, Your Honours, that the

Bar practice course has never refused an

application for external status, it will tell

you the number of external students that they

have had and, with respect to the interstate

ones and overseas ones, it will tell you where

they resided at the time when they did the course.

(Continuing on page 272)

C 1T2 l /1 /ND	271
Street(2)
MASON CJ:	Now, Mr Bennett and Mr Robertson, what is your
attitude to this?

MR BENNETT:  I do not object to it, Your Honour. We will be

submitting that it does not take the matter any
further or assist.the Court but we do not object

to my friend putting it before the Court in this

way.

MASON CJ:	Yes, Mr Robertson?
MR ROBERTSON:	Yes, I am with Mr Bennett on that, Your Honour.
MASON CJ:	Yes, very well, we will receive the affidavit,
Mr Greenwood.
MR GREENWOOD:	Thank you.
TOOHEY J:	Mr Greenwood, the rules contain at various stages
provision for the waiver of requirements. Do they
go so far as to permit an entire waiver of the Bar practice course and all other requirements in
the case of somebody who meets rule 15(d)(2)?

MR GREENWOOD:  Yes, Your Honour.

TOOHEY J: In other words, someone armed with the appropriate

academic qualification might be able to secure

admission under subrule (d)(2) without anything more

being required of him or her?

MR GREENWOOD:  Yes, and, indeed, I.suppose that, theoretically

there would be no reason why - if I might go, perhaps,

to the rule which allows that. Rule 31 is the:

Excuse and Exemption -

rule which is available to the Board and, in effect,

it says that the:

Board may -

excuse -

a person from passing any of the above Stages or any

subject at any of the above Stages.

It may, however, of course, do so subject to certain

conditions which it regards as appropriate in an
individual case. That rule is prefaced by saying:

In special circumstances on account of appropriate experience and suitable qualifications, the Board

may exempt a person from passing any of the above

stages.

Now, rule 32 is specifically directed to the practical

aspects of a barrister's training and it too refers to, in the

middle of the rule, about a person being excused or exeIIl)ted by

the Board from doing so.with respect to the practical work.

ClT22/lLVH

Street(2) 272 16/3/89

MR GREENWOOD (continuing):  However, the Board's exemption

power - and while I am on the Board's exemption

power, I should perhaps mention this: the

Board's exemption power only extends to the

subjects, or the practical work, or the

examination stages. It does not extend to

certain other aspects of the admission rules.

For example, rule(S)would allow a barrister and

required to be in actual practise exclusively as

solicitor of the Supreme Court of Western

a barrister for 12 months. And, a case came

before the Board three years ago, in which a
person did not have the full 12 months and the

Board had to say to the Full Court that, although

we wish to exempt this person and support her

application for admission to the Bar, we did not,

ourselves, have the power to exempt her from

that particular requirement, but the Full Court

did and the Full Court was prepared to dispense
with that particular requirement.

But, Your Honour's question, yes, the Board can, if it wished, exempt altogether. There has

never been an application to the Board with

respect to somebody who has undergone the New

South Wales pupilage system, for example. But, of

course, if that application came before us, then

we would have to consider it. The reverse is

true, New South Wales - - -

DEANE J:  Has any practising barrister in another State

ever been admitted pursuant to this procedure?

MR GREENWOOD:	No, it is only - - -
DEANE J:	Up until the recent amendment, was the view taken

that a barrister in another State could be

admitted pursuant to this procedure, even if he

intended to keep on practising?

MR GREENWOOD:

before the Board, that I can recall, in the time Quite shortly, Your Honour, it has never come

I have been on the Board.

DEANE J:  Well, has the Board had any approach as to

whether, if a barrister from another State wanted

to be admitted, following this procedure they

would require an undertaking that he cease

practise or that he become a resident?

C1T23/l/JH	273	16/3/89
Street(2)
MR GREENWOOD:	There is no provision for any such undertaking to be required in the rules, Your Honour.	The

only provision in the rules which in any way

relates to ceasing practice elsewhere was the

provision in the repealed form 10 which only
relates to admission without examination by somebody

relying on being a member of another bar.

MASON CJ:  I suppose it never occurred to anyone until

recently that a practising barrister from another

State might seek admission under rule 15(2)?

MR GREENWOOD:	That may well be so, Your Honour, but the proposition which I am endeavouring to rebut here
is that these rules which, with respect, are not difficult of interpretation, the words are plain,
that these rules have on their face a discriminatory
purpose and my submission is that one must look
at the rules as a whole and certainly we may be
criticized when addressing the problem of admitting somebody on the basis of previous admission
elsewhere alone and admitting without examination,
that the solution that we adopt, that of requiring
him during a probationary period of 12 months to
practise principally in Queensland, we might be
criticized by those who say that that is not the
right way to go about it or it is not the best way
to go about it, and that may well be so.
TOOHEY J:	That strikes me as a rather odd thing to say because it seems tio--carry with it the notion
that the new rule lS(e) should be read down to mean, have the intention of practising principally
in Queensland for 12 months?
MR GREENWOOD:	I would not concede, Your Honour, that it

needs any reading down for that.	I would submit
that is precisely what it means.	A barrister
relying - - -

TOOHEY J·:  Well, could I just take it one step further then?

The new (6) which is referred to in form 10, which

requires a statement of:

intention to practise principally in the

State of Queensland -

should again be taken to mean, you appear to be

saying, "It is my intention to practise for 12

months principally in the State of Queensland."?

MR GREENWOOD: 

Yes, Your Honour. That form is required to

obtain conditional admission. The whole point of
conditional admission is that the person should

practise principally in the State of Queensland

for 12 months and at the -

TOOHEY J: Well, it is an odd way of going about it, if I may

say so.

ClT24/l/MB	274
Street(2)
MR GREENWOOD:	At the end of that period, in order to qualify

for an unrestricted admission, he has to satisfy

the Court that during the last 12 months he has

done what he said was his intention to do, and

that is practise principally in Queensland for

12 months. At the end of that time he is

unconditionally admitted to the Queensland Bar

and he is in the same position as anybody else
who is unconditionally admitted to the Queensland

Bar. The difference is, of course, that somebody

relying on these academic qualifications and relying

on attendance at the Bar practice course would

be unconditionally admitted from the outset.

Such a person relying on academic qualifications

could do what he liked so far as practice is
concerned because, rightly or wrongly, having
done the Bar practice course and having reported

cases in the supreme court, the High Court, the

district court, and so on, of various kinds, he

has demonstrated what we are prepared to regard

as sufficient knowledge of the practice of the	..
law in Queensland in so far as it may be different
from the practice of the law in other parts of the Commonwealth.

TOOHEY J:  You may well be right but it again is an odd

way in which to do it, because paragraph (e) is

linked to the opening words of rule 15:

every person applying to be admitted as a

barrister shall·-

(a), (b), (c), (d), (e), and (e) reads:

if he relies on a qualification set out in

paragraph (d) (3), (4) or (5), have the

intention of practising principally in

Queensland.

In other words, one might read that as meaning

that at the time - one cannot be admitted under	this particular form of qualification without
the intention of practising principally in Queensland.

MR GREENWOOD:  Your Honour, I suppose there are two answers

to that: I suppose there is the technical one

that the admission, which is referred to in the
preamble, is, of course, a conditional admission

because that is what it is.

DEANE J. If that be right, he would not need to be of good

fame at the time he was unconditionally admitted.

MR GREENWOOD:	I am afraid that really has never occurred to the Board, Your Honour. But it is true that when one amends
rules, one does finish up with a hotchpotch which sa:netimes
does not come together with the cohesion that one would
expect in a newly drafted set of rules.

C1T25/l/SDL	275	16/3/89
Street(2)

BRENNAN J: That might be an explanation but it does not

solve the problem which faces this Court, does

it?

MR GREENWOOD:  No, Your Honour, it does not except in

so far as the inference that the question of

fact, if I might so characterize it, and I know

that that characterization is subject to

criticism but our opponents seek to say is that
this rul~ should be looked at in isolation and

looked at in that way it has a purpose or effect

which is discriminatory and, further, that that

discrimination is discrimination to an unacceptable
degree and I am simply saying that although,
perhaps, if one looked at 15(e) in isolation

as a method of admission some minds might say

that it is overly harsh and discriminatory against

people from interstate with interstate

qualifications.

If one looks at the rule as a whole then the other avenue, relying on university examinations,

is a fairly straightforward and simply path

and that the inference of discriminatory purpose

then, to an unacceptable degree, should not

be drawn with respect to 15(e) because it should

not be looked at in isolation. In our submissions,

of course, when we get to 4, we do say that

even if rule 15(e) is looked at in isolation

and not in the context of the alternative methods

of admission, it does not impose a burden that

goes beyond the prescription of a reasonable

standard to be observed in the control of admissions

to the Bar without examination and we do not

resile from that but - - -

BRENNAN J: The first question that arises in order to

consider that submission is the construction

of the rule and its operation and if one construes

the rule as being one relating to a general

intention not limited as to time then one may

arrive at a different conclusion from the conclusion

one would arrive at if one construes it as being

limited to 12 months.

MR GREENWOOD:  I see. Yes, that is so. If one were to

construe it that way then one would have to

say that it takes a lifetime of practice before

someone admitted in Western Australia can

satisfactorily absorb the idiosyncrasies of

Queensland law and practice, I suppose.

C 1T26/l /ND 276

Street(2)

BRENNAN J:  Then in the whole of that lifetime that unqualified

practitioner has been allowed to practise upon the

public of Queensland.

MR GREENWOOD:  Yes, I see, that is so, Your Honour, and that

is why it is so difficult to withstand that proposition.

Although I would not want to wish to agree with Your Honour's proposition completely, There is,

of course, the idea current throughout our profession

at present that the law is not static, that it is

rapidly changing and that continuing legal education

is required and it may well be that some people would

regard a wider rule requiring people who wish to
practise the law in Queensland at the Bar to reside

in Queensland and practise there principally exclusively.

Some minds would regard that, I suppose, as an

appropriate way of addressing the problem of continuing

legal education but we would not do so. And because

we would not do so, we change the rules, and it is this
new rule, of course, that we are interested in

administering and if, in its drafting, it still
transgresses, well, of course, we seek the guidance

of this Court.

I would submit that the position is relatively

clear and that is that it imposes for 12 months during

the period of conditional admission the requirement of

placed on me if I were in Queensland is the requirement

that I practice away from my place of residence and

obviously the disadvantages that flow from that are

the additional costs and the burdens and the personal

sacrifices one has to undertake in order to comply

with the requirement in the bar rules.

As far as the distinction between the words

disability and discrimination are concerned, I perhaps

part from Mr Bennett in his reply in this sense.

Disability, it seems to me, probably does mean legal

disqualification in the sense in which it is

understood that perhaps a minor cannot litigate

without a tutor or a travel agent cannot conduct

business unless licensed and perhaps a barrister

cannot practice without admission as a barrister of

the Supreme Court of New South Wales, and so the

absence of admission is a legal disability, or is a

disability in the sense of which section 117 speaks.

Discrimination, on the other hand, perhaps can

also be a disability but it does mean a distinction

or a difference and the distinction or difference in

my case is as previously put.

(Continued on page 317)

ClT64/l/HS	316	16/3/89
Street(2)

MR ROBERTSON (continuing):  So I would respectfully

submit that section 117 is structured so as to

go behind the face of a law or practice to
examine its substance. It is addressed to the

effect or the impact of practices or laws upon

persons who come within its protection. As I

am the person subject to the discrimination

or disability, it is my personal position which
has to be considered and not the position of

other residents of New South Wales, or for that

matter, other residents of Queensland. The

section by its very terms distinguishes between "cause" and "effect" and it addresses "effect".

Your Honours, finally, there are some

matters I wish to addres~ in the submissions of
the first defendant in Mr titreet.' s case, which

is the Bar Association and which is one of the

respondents in my matter. Can I take the Court

to the written submissions on section 92, which are at page 3 of the written submissions of the

first defendant? Paragraph 7 of the first

defendant seeks to justify the rule. Now, this

is a proposition equally applicable in the

section 117 analysis if it is accepted that the

notion of discrimination or disability can, in

some way, vary according to the legitimate ends

of the discrimination or disability identified. So, accepting for the purposes of argument that

that is so, the first end which it is said the
rule serves is the control over disciplinary

matters could be impaired, or tenuous, or impossible, where the barrister practises

principally outside the jurisdiction.

Now, as we know, those relying upon in_ Queensland qualifications for admission never

have this fetter imposed and they may practise

for the whole of their professional careers

principally outside of Queensland, in which case

one imagines that the control over disciplinary

matters exercised by the judiciary in Queensland

is already impaired, tenuous or impossible, if

there are barristers in Queensland who do so; and,

no doubt, there probably are, because there is

a northern New South Wales circuit where Queensland

lawyers practise and, indeed, where it would be cheaper to brief a Queensland barrister than to

brief someone from New South Wales who has a

practice in Sydney.

ClT65/l/JH	317	16/3/89
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MR ROBERTSON (continuing):  Of course, if one accepts the

construction urged of the rule itself, that this

is a duration or practice requirement so that

it ceases to operate after a year, then

pargraph (i) simply does not address the situation

at all because it means that the mechanism

utilized to exercise the disciplinary control

evaporates after a year of practice by the

barrister.

The second proposition is that in general the courts in Queensland would have more

confidence in and litigants would be better

served by barristers practising principally

in Queensland. The same proposition applies,

that the courts presently presumably have confidence

in Queensland practitioners who may, according to

the rules, practise principally outside of

Queensland and indeed it could be said that

in so far as much appellate work is done in

Canberra, much appellate work in the Federal Court

is done in Sydney and Melbourne, and that has been

the case for some years now, that there are no

doubt lawyers specilizing in appellate work in

Queensland who may have the centre of their

practice outside of Queensland but there has been

no suggestion of any lack of confidence in them

on the part of the judiciary. Of course, the

final proposition is that the litigants would be

better served by barristers practising principally

in Queensland. Your Honours, all I say as to that

is that litigants are best served by being

represented by the barristers having the most

appropriate experience and ability in the

particular area in which they profess to practise

and I do not think even the Queensland Bar would

suggest that it is the sole repository of all

ability and all experience in all areas in which

it is possible to practise in that State. May

it please the Court, those are my submissions.

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

consider its decision in these matters.

AT 2.27 PM THE MATTER WAS ADJOURNED SINE DIE

CIT66/l/JM	318	16/3/89
Street(2)