Closing time at the bar n' grill
Tuesday, December 2, 2014
Justinian in Bar Talk, NSW Bar Association, Senior Counsel applicants

Grasping for silk ... A deadline is a deadline, except when the bar president extends it ... NSW barrister 12 minutes late with his silk application ... Bar not obliged to consider any application for silk ... Inner and outer bars ... No stigma in not being a silk ... Kate Lilly reports 

Smallbone: history of frustration with the bar association

Justice Paul Brereton in the NSW Supremes has tossed out all the grounds in barrister David Smallbone's challenge against the 5pm deadline for silk applications.

Smallbone missed the deadline by 12 minutes when he hand delivered his application to be appointed an SC on July 25. Frustratingly, it was his ninth application.  

The language used in communications in the bar's holy of holies is instructive. Philip Selth, the bar association's executive director, emailed president Jane Needham SC at 5:32pm.

"Houston, we have a problem . . . 

We received at 5.12 a Silk application from Smallbone.

Late.

---

We have knocked people back before for being late. We went out of our way to encourage applicants to lodge before 5 pm.

I do not believe we shld make an exception for Smallbone cos he will whinge 

---

Unless directed otherwise, I will formally tell Smallbone on Monday that his application was not received by the due time.

Prez Needhan replied: 

"I agree. Late is late. The only late applications I've known about being approved are those with prior extensions granted due to extraordinary circumstances." 

Later that evening she added:

"Rules are rules, whether it's someone I like [named] or someone who has sued us (Smallbone)."

Is there an inference Smallbone is not liked? 

Three days later, with the president's approval, Selth contacted Smallbone and told him his application would not be considered.    

Smallbone suggested that an extension should be considered in light of "special circumstances". He wrote:

"The reason why it was lodged late was that I was unexpectedly required in court on Friday for longer than anticipated. I did not get free until about 3pm and was perforce required to settle the details of my application in a great rush. This led to the application being hand delivered 12 minutes late.

I must say that I was surprised to receive Mr Selth's letter, given that only 12 minutes were involved and that this is my ninth application and the history of frustration that lies between us."

The bar association was not moved. Selth replied the following day: 

"The president has considered your letter of 28 July 2014. However, as there are no 'special circumstances' attached to your application, your application will not be considered.

I note that another late application will also not be considered. The deadline was widely advertised to the bar. The fact that this is apparently your ninth application and that you say there is a 'history of frustration' does not justify you receiving more favourable consideration than other applicants." 

In August, Smallbone took his case to the bar council - in the form of individual letters to each member.  Unfortunately for him, the council couldn't see any problem with the president's decision. Undeterred, he turned to the Supreme Court.  

Smallbone's Supreme Court case 

The silk-deprived barrister sought to challenge the legality of the 5pm deadline, the legality of the president's decision not to consider his application under the "special circumstances" clause of the senior counsel protocol, and the bar council's failure to review the decision. He contended that:

1. The 5.00pm rule did not exist because it had not been authorised by the bar council, or, the time was not essential;

2. If did exist, the 5.00pm rule was void, because it was not made for any proper constitutional object of the bar association, and/or it was contrary to s.81 of the Legal Profession Act (NSW), and/or it was an unreasonable restraint of trade, and/or it was oppressive or unfairly discriminatory under s.232 of the Corporations Act (Cth);

3. The president's discretionary decision not to consider his late application was an unreasonable restraint of trade and/or oppressive;

4. The bar council's failure to review that decision was an unreasonable restraint of trade and/or oppressive;

5. The court should extend time under s.1322(4)(d) of the Corporations Act

Justice Brereton was not convinced by any of this.  

 

Brereton: 5pm closing is not a restraint of trade

First, he found it was no use considering the "legality" of the 5.00pm deadline, as the senior counsel protocol does not give rise to any legally enforceable rights to have applications considered.

In any case, he found the information provided by the bar association amounted to a categorical statement that applications received after the deadline would not be considered, and that the deadline was manifestly essential.  

Furthermore, HH held the 5.00pm rule was not ultra vires, noting the specification of a time by which silk applications must be made is "obviously incidental" to the bar association's power to select and appoint senior counsel.

He found the deadline was not relevant to the Legal Profession Act, noting that the imposition of a deadline, "is not a rule, guideline or ruling governing, regulating or constraining how a barrister carries on practice as such". 

The judge also rejected the "unreasonable restraint of trade" argument noting that the "policy governing admission to the inner bar does not impose a substantial restraint upon engaging in practice as a barrister".

In fact, he had a bit to say about this: 

"Plainly, appointment as senior counsel is not necessary to carry on practice as a barrister. However, the plaintiff submitted that the restriction of entry into the inner bar - designated by public announcement, postnominals, a different uniform, and the traditional and historical recognition that these badges invoke - operates as a barrier to 'senior work', and is thus a restraint of trade.

[snip]

The plaintiff's evidence and submissions addressed the supposed 'competitive advantage' that silk was said to confer, but a competitive advantage falls far short of a barrier to areas of practice. 

[snip]

The plaintiff submitted that exclusion of barristers from 'the senior rank' is a matter of adverse notice; but I do not accept that there is any stigma associated with not being appointed senior counsel. At worst, it involves a judgment that an applicant does not meet the stringent standard of eminence and excellence in several domains required to justify appointment.

The very fact that appointment is for the eminent, and not the long-serving, demands that there will be many very competent barristers of considerable experience who fall short of sufficient eminence to attract appointment. Stories of unsuccessful applications for silk by barristers who have later succeeded, and/or been appointed to the bench, abound."

HH also found the deadline was not unreasonable or discriminatory in the circumstances, considering the deadline was widely publicised, and applied equally to all the applicants.  

He said it was open for the bar association to deny Smallbone's request for a special circumstance extension, noting "the circumstance of being detained in court longer than expected is within the frequent experience of every barrister".

Brereton concluded: 

"The detriment to the plaintiff is the loss of a chance to be considered for appointment for a year, not forever ... Another, whose application was received after 5.00pm, was also rejected. The provision of a 'level playing field' for all applicants . . . tells against it being just to relieve from the consequences of not meeting the deadline. It would be unfair to the applicants who adhered to the deadline, and to the other late applicant whose application was rejected, to permit an extension." 

It's nice to have on the record that there's no stigma in not being eminent. 

See: In the matter of thje NSW Bar Association 

Article originally appeared on Justinian: Australian legal magazine. News on lawyers and the law (http://justinian.com.au/).
See website for complete article licensing information.