Picking a small bone
Friday, August 1, 2014
Justinian in Bar Talk, David Smallbone, NSW Bar Association, Silk selection

Barrister's silk application arrives 12 minutes after deadline ... Told by bar executive director that it will not be considered ... No "special circumstances" ... Correspondence ... Lawyers at ten paces  

David Smallbone, a "history of frustration"

SYDNEY barrister David Smallbone was 12 minutes late in lodging his ninth application for silk. 

Bar executive director Philip Selth returned his application and said it would not be considered as it was not accompanied by an explanation of the "special circumstances" that caused it to arrive after deadline. 

The thwarted brief is consulting his lawyers. 

After receiving Selth's knock-back on July 28 Smallbone wrote to the president and councillors of the bar association requesting his application be accepted under clause 17 of the silk selection protocol.  

He explained that he was in court till about three o'clock on the day of the deadline (5pm, July 25) 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". 

Selth wrote back next day saying that Smallbone had not provided any special circumstances, so tough luck. 

"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." 

By letter dated July 29 Smallbone asked Selth to advise who instructed him not to accept his application. 

By another letter the same day, Smallbone re-submitted his application, insisting that it be referred to the bar council for urgent consideration. 

He added: "You will be hearing soon from my solicitor." 

The most recent missive from Selth was on July 30. 

"As I advised yesterday, clause 17 of the senior counsel protocol refers specifically to the president having the discretion as to whether late applications should be considered. This is not a matter for the bar council ... I return your application." 

In 2011 Smallbone succeeded in a Federal Court application to have the bar provide silk applicants with the comments made about them by the members of the consultation group, as long as the names of individuals were redacted.  

Importantly, Smallbone also won a stay of the bar's decision about his application until he had an opportunity to respond to the comments. 

Nonetheless to say, he remained in the salon de refuses. 

His contention now is that the bar council has ultimate responsibility over the process, despite the delegation of its power in this instance to the president and a silk selection committee. 

You can read the action-packed correspondence here ...  

Selth to Smallbone, July 28

Smallbone to president and councillors, July 28 

Selth to Smallbone, July 29

Smallbone to Selth #1, July 29

Smallbone to Selth #2, July 29 

Selth to Smallbone, July 30 

Article originally appeared on Justinian: Australian legal magazine. News on lawyers and the law (http://justinian.com.au/).
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