Ceremonial Sitting on the Occasion of the Announcement of Appointment of Senior Counsel [2023] HCATrans 1 (6 February 2023)

Last Updated: 9 February 2023

[2023] HCATrans 001

H I G H C O U R T O F A U S T R A L I A

CEREMONIAL SITTING

ON THE OCCASION

OF

THE ANNOUNCEMENT OF APPOINTMENT

OF

SENIOR COUNSEL

Coram: KIEFEL CJ

GAGELER J

GORDON J

EDELMAN J

STEWARD J

GLEESON J

JAGOT J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON MONDAY, 6 FEBRUARY 2023, AT 3.30 PM

The following King’s Counsel and Senior Counsel were seated at the Bar table:

Mr Ian Robertson SC, for the Bar Association of South Australia

Ms Gabrielle Bashir SC, President of the New South Wales Bar Association

Mr Brahma Dharmananda SC, President of the Western Australian Bar Association

Mr Brodie Buckland, Vice‑President of the Australian Capital Territory Bar Association

Mr Sam Hay KC, President of the Victorian Bar

Ms Mary Chalmers SC, Vice‑President of the Northern Territory Bar Association

Mr Damien O’Brien KC, President of the Bar Association of Queensland

Members of the Judiciary seated within the Court:

The Honourable Deputy Chief Justice Robert McClelland AO, Deputy Chief Justice of the Federal Circuit and Family Court of Australia

The Honourable Justice Richard Niall, Supreme Court of Victoria

The Honourable Justice Chrissa Loukas‑Karlsson, Supreme Court of the Australian Capital Territory

KIEFEL CJ: Mr Robertson SC, for the Bar Association of South Australia.

MR ROBERTSON: May it please the Court, I inform the Court that the following members of the Bar here present have been appointed as Senior or King’s Counsel in the State of South Australia.

They are:

Carey Hugh Goodall who ranks in seniority after Damian Francis O’Leary

Nicholas John Floreani who ranks in seniority after Carey Goodall

Carmen Jane Matteo who ranks in seniority after Nicholas John Floreani

Jane Elizabeth Abbey who ranks in seniority after Carmen Jane Matteo

Gillian Caitlin Walker who ranks in seniority after Chad Jacobi

May it please the Court.

KIEFEL CJ: Ms Bashir SC, President of the New South Wales Bar Association.

MS BASHIR: May it please the Court, I inform the Court that the following members of the Bar here present have been appointed as Senior Counsel in the State of New South Wales.

They are:

Dauid Reza Sibtain who ranks in seniority after Helen Ruth Roberts

Guy Alexander Newton who ranks in seniority after Dauid Reza Sibtain

Simeon Asai Beckett who ranks in seniority after Guy Alexander Newton

David Wade Rayment who ranks in seniority after Simeon Asai Beckett

Justin Charles Hewitt who ranks in seniority after David Wade Rayment

Bill Michael Neild who ranks in seniority after Justin Charles Hewitt

Bradley Lloyd Jones who ranks in seniority after Bill Michael Neild

Julian Stuart Cooke who ranks in seniority after Bradley Lloyd Jones

Ragni Mathur who ranks in seniority after Julian Stuart Cooke

Kellie Ann Stares who ranks in seniority after Ragni Mathur

Iain Charles Colquhoun ranks in seniority after Nicholas Mark Bender

Justine Mary Beaumont who ranks in seniority after Iain Charles Colquhoun

Elizabeth Bishop who ranks in seniority after Justine Mary Beaumont

Scott Robertson who ranks in seniority after Elizabeth Bishop

Jonathan Barry Kay Hoyle who ranks in seniority after Scott Robertson

Patrick Michael Knowles who ranks in seniority after Jonathan Barry Kay Hoyle

Martha Rebecca Marie Barnett who ranks in seniority after Troy Francis Edwards

James John Hutton who ranks in seniority after Martha Rebecca Marie Barnett

May it please the Court.

KIEFEL CJ: Mr Dharmananda SC, President of the Western Australian Bar Association.

MR DHARMANANDA: May it please the Court, I inform the Court that the following members of the Bar here present have been appointed as Senior Counsel in the State of Western Australia.

They are:

Leigh Alan Warnick who ranks in seniority after Terrence James Palmer

Bettina Anne Mangan who ranks in seniority after Leigh Alan Warnick

Craig Steven Bydder who ranks in seniority after Bettina Anne Mangan

Timothy Jerome Hammond who ranks in seniority after Craig Steven Bydder

Fiona Beverley Seaward who ranks in seniority after Timothy Jerome Hammond

Eric Michael Heenan who ranks in seniority after Fiona Beverley Seaward

Rachael Young who ranks in seniority after Eric Michael Heenan

May it please the Court.

KIEFEL CJ: Mr Buckland, Vice‑President of the Australian Capital Territory Bar Association.

MR BUCKLAND: May it please the Court, I inform the Court that the following members of the Bar here present have been appointed as Senior Counsel in the Australian Capital Territory.

They are:

Steven Milton Whybrow who ranks in seniority after Rebecca Jane Christensen

Anthony Brian Williamson who ranks in seniority after Steven Milton Whybrow

May it please the Court.

KIEFEL CJ: Mr Hay KC, President of the Victorian Bar.

MR HAY: May it please the Court, I inform the Court that the following members of the Bar here present have been appointed as Senior Counsel in the State of Victoria.

They are:

James David Sinclair Barber who ranks in seniority after Barbara Anne Myers

Elizabeth Jane Boros who ranks in seniority after James David Sinclair Barber

Maria Pilipasidis who ranks in seniority after Elizabeth Jane Boros

Romauld Andrew who ranks in seniority after Christian Georg Otto Juebner

Ian Peter Horak who ranks in seniority after Romauld Andrew

Craig Hamilton Smith who ranks in seniority after Ian Peter Horak

Raelene Jane Sharp who ranks in seniority after Jason Gullaci

Carl Theodorus Moller who ranks in seniority after Raelene Jane Sharp

Jonathan Hugh Kirkwood who ranks in seniority after Carl Theodorus Moller

Samuel Bruce Rosewarne who ranks in seniority after Jonathan Hugh Kirkwood

Frances Isobel Gordon who ranks in seniority after Samuel Bruce Rosewarne

Melanie Lesley Baker who ranks in seniority after Frances Isobel Gordon

Albert Mark Dinelli who ranks in seniority after Melanie Lesley Baker

Zoe Emmanuelle Maud who ranks in seniority after Albert Mark Dinelli

Robyn Wendy Sweet who ranks in seniority after Zoe Emmanuelle Maud

William Arthur Deryk Edwards who ranks in seniority after Robyn Wendy Sweet

Mark Peter Costello who ranks in seniority after William Arthur Deryk Edwards

Emrys Marc Nekvapil who ranks in seniority after Mark Peter Costello

Roslyn Linda Kaye who ranks in seniority after Emrys Marc Nekvapil

Melanie Szydzik who ranks in seniority after Roslyn Linda Kaye

Eleanor Mary Mallett who ranks in seniority after Melanie Szydzik

May it please the Court.

KIEFEL CJ: Ms Chalmers SC, Vice‑President of the Northern Territory Bar Association.

MS CHALMERS: May it please the Court, I inform the Court that the following member of the Bar here present has been appointed as Senior Counsel in the Northern Territory.

She is:

Victoria Engel who ranks in seniority after Mary Elizabeth Chalmers

May it please the Court.

KIEFEL CJ: Mr O’Brien KC, President of the Bar Association of Queensland.

MR O’BRIEN: May it please the Court, I inform the Court that the following members of the Bar here present have been appointed as King’s Counsel in the State of Queensland.

They are:

Gerard Raymond Mullins who ranks in seniority after Steven James Deaves

Timothy Anthony Ryan who ranks in seniority after Gerard Raymond Mullins

Craig Anthony Wilkins who ranks in seniority after Timothy Anthony Ryan

Sarah Joyce Farnden who ranks in seniority after Craig Anthony Wilkins

Katarina Prskalo who ranks in seniority after Sarah Joyce Farnden

Mark Justin Steele who ranks in seniority after Katarina Prskalo

David Daniel Keane who ranks in seniority after Mark Justin Steele

Holly Louisa Blattman who ranks in seniority after David Daniel Keane

Edward James Goodwin who ranks in seniority after David Edward Francis Chesterman

Daniel James Butler who ranks in seniority after Edward James Goodwin

Angus David Scott who ranks in seniority after Daniel James Butler

Donald Benjamin Gardiner who ranks in seniority after Angus David Scott

David Paul Jones who ranks in seniority after Donald Benjamin Gardiner

May it please the Court.

KIEFEL CJ: Are there any motions from the Bar table?

Present in Court today are two former justices of this Court: the Honourable Kenneth Hayne and the Honourable Patrick Keane. Also present are the Deputy Chief Justice McLelland of the Federal Circuit and Family Court, Justice Loukas‑Karlsson of the Supreme Court of the Australian Capital Territory, Justice Niall of the Court of Appeal of the Supreme Court of Victoria and the Solicitor‑General of the Australian Capital Territory.

On behalf of the Court, I congratulate the new silks. It is fitting that on your appointment as Senior Counsel or King’s Counsel for your State or Territory you journey to this Court and have your appointment announced. Your attendance, and that of your Bar Association, acknowledges the relationship between the Courts and the Bar and the position of this Court at the apex of our judicial system. The strong relationship between the courts and the Bar and the rule that a barrister’s first duty is to the courts has long been an important feature of our legal system. It would not be possible for the courts to discharge their work if they were not able to rely upon counsel to conduct litigation efficiently and in accordance with the high standards of conduct and ethics which may be expected of members of the profession of barristers.

The Court extends a welcome to your families. Your journey to the pinnacle of your profession was not taken alone and it has taken many years. Your appointment is not likely to have been possible without the considerable support and encouragement on the part of your families for whom this is no doubt an especially happy occasion.

The grant of silk is recognition of your legal knowledge, your ability as an advocate and your display of qualities which have marked you out as leaders of the Bar. A person is not appointed to silk in recognition merely because of his or her long service as a barrister. An appointment is justified only where it is obvious that the person’s ability as a lawyer and advocate is outstanding. This is usually evident from the nature and extent of a person’s practice, from the complexity and difficulty of their work, and from the fact that the person has routinely led more junior barristers in the conduct of litigation.

The years at the Bar which now lie ahead of you as Senior Counsel will be the most interesting and challenging of your professional life.

The office of Senior Counsel, more specifically King’s Counsel, dates back over 400 years. The precursors were Serjeants‑at‑Law. Sir Francis Bacon was the first person to be granted the office of King’s Counsel by letters patent which referred to him as “one of our counsel learned in the law”. ^[1] King’s Counsel were appointed to give assistance and advice to the law officers of the Crown.

During the 18th century, King’s Counsel ceased to be assistants of the Attorney‑General and the Solicitor‑General. The position became one simply of rank and precedence superior to ordinary counsel. Their establishment contributed to the decline of the Serjeants. By the 19th century nearly all barristers with high aspirations chose the silk gown of a King’s Counsel over the coif of the Serjeant. The passing of the Serjeants from history serves to remind us that circumstances may change and the Bar may need to adapt while at the same time holding to its core values.

There has been some controversy over the first formal appointment of a silk at the Australian Colonial Bar, although there is said to be good reason to believe it was John Hubert Plunkett of New South Wales in May 1856.^[2] The delay in formally granting silk has been attributed to doubts as to whether the Governor of a colony had power to issue patents of that kind.^[3] But the appointment of Plunkett served to spur on the other colonial governments to appoint their own silks with Tasmania, Victoria and Queensland appointing their first Queen’s Counsel in 1861, 1863 and 1865 respectively.

While the numbers of Senior Counsel in Australia have grown since those first appointments in the mid‑19th century, the significance of the appointment remains unchanged. Taking silk remains about more than just acquiring a higher status within the profession. With that new status comes responsibilities and they will require you to think beyond yourself and your own interests. More will be expected of you – by the courts, by the profession, and by your Bar Associations.

The junior Bar will look to you silks for guidance and example. You must be conscious of this at all times and conduct yourself with the dignity and civility that your position demands.

Your appointment is made for the benefit of the profession as well as in recognition of your abilities. This is how the profession may continue. The profession will survive if it maintains that which sets it apart from other providers of services. Its hallmarks are integrity and independence. The courts expect every barrister to uphold the professional and ethical standards of the profession, but they expect silks to be exemplars of such conduct.

Your role as a leader of the Bar will involve you even more closely with your Bar Associations. The associations will expect you to participate in the affairs of the Bar, to guide and educate the junior Bar, to assist when important issues arise and to share in the concerns about challenges facing the profession. Those who have appointed you evidently have confidence not only in your abilities as a lawyer and advocate but also that you will fulfill the obligations of a silk.

There has been a long history of Senior Counsel announcing their taking of silk to the Court and receiving the Court’s congratulations on their appointment. It has occurred for over a century. There is a report in 1911 of the then‑Queensland Attorney‑General informing the Court, which then comprised Chief Justice Griffith and Justices Barton and O’Connor, of his appointment as one of “his Majesty’s counsel”.^[4] It was also reported in a newspaper in 1921 that:

Sir Adrian Knox, Chief Justice of the High Court, and his brother Justices Higgins, Duffy, Powers and Starke, looked very hot as they took their seats . . . this morning, adorned by long bottomed wigs reaching well down over their shoulders . . . Mr H.W. Bryant and Mr J.H. MacFarlane intimated that they had been appointed as His Majesty’s counsel . . . Each member of the Court smiled approvingly, and the Chief Justice remarked ‘I am glad to hear it. I congratulate you both.’ ^[5]

The ceremony today is not quite so brief. The more formal ceremonial sitting for new silks, which is now a feature of the first sitting period of the Court (COVID permitting) commenced in 1982. It was the result of representations made by the Australian Bar Association to the Court. ^[6]

The Court thanks you for the courtesy you have shown in informing it of your appointments and wishes you and your families well for the future.

The Court will now adjourn.

AT 3.49 PM THE COURT ADJOURNED

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[1] Holdsworth, “Rise of the Order of King’s Counsel and Its Effects on the Legal Profession” (1920) 36 Law Quarterly Review 212 at 214.
[2] Bennett, “Of Silks and Serjeants” (1978) 52 Australian Law Journal 264 at 270.
[3] Bennett, A History of the New South Wales Bar (1969) at 236.
[4] “The High Court of Australia”, Brisbane Courier (27 April 1911).
[5] “New King's Counsel”, The Ballarat Star (15 February 1921).
[6] “High Court ceremonial sitting for new Queen’s Counsel announcing their appointment” (1982) 56 Australian Law Journal 155.