Sydney barrister loses court battle over silk appointments

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A Sydney barrister has lost her legal battle against the Bar Association. Photo: James Davies A Sydney barrister has lost her legal battle against the Bar Association. Photo: Jessica Shapiro
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 It is a title coveted by barristers that has triggered court spats and attempted leadership coups.

Appointments to the prestigious rank of Senior Counsel – or silk – are made annually and are a reliable source of controversy among the NSW bar.

Days before applications close on July 29 for the latest round of appointments, the Federal Court has ruled on the latest stoush involving a barrister whose silken aspirations were thwarted.

Sydney barrister Mary Walker, who specialises in mediations, took the NSW Bar Association to court after her application for appointment as silk was knocked back last year.

The title is prized by barristers because it allows them to charge more for work and sets them apart from their peers as experts in their field.

Ms Walker sought a series of orders, including a declaration that, in dealing with her application, the association had acted in an “oppressive, unfairly prejudicial or unfairly discriminatory manner”.

She also sought a declaration that the Bar Association protocol governing silk appointments – which applies to “practising advocates” – does not shut out barristers who work largely or solely as mediators rather than appearing in court as advocates.

Her legal battle followed a high-profile stoush in 2014 involving Sydney barrister David Smallbone.

He submitted his application for silk 12 minutes after the 5pm deadline and took the association to court after it was rejected for lateness. The Supreme Court dismissed his case.

Ms Walker applied for appointment as silk in 2014 but was told her application was not considered because it was “not within the protocol”.

She tried again last year and was told her application had been considered but knocked back.

In a meeting with the then Bar Association president, Jane Needham, SC, and silk selection committee member Michael Fordham, SC, Ms Walker asked if the association had determined the meaning of the term “practising advocate”.

Mr Fordham replied: “We had deferred any consideration of [that question] … until after your application was determined on the merits. Your application was not enough.”

Federal Court judge Anthony Besanko said the silk selection protocol was “in the nature of a policy document” and did not create legal rights and duties that could be ruled on by the court.

He noted silks were able to charge higher fees and the title was “a public identification of an ability to provide outstanding services”.

“No doubt disappointment, even great disappointment, attends the rejection of an application,” Justice Besanko said.

“Even so, it is not any economic interest or potential economic interest which is sufficient to justify the court’s intervention, particularly having regard to the nature of the protocol.”

He rejected Ms Walker’s argument that she had been treated in an oppressive, unfairly prejudicial or unfairly discriminatory manner.

The title of Senior Counsel (SC) has led to a series of ructions among the NSW bar.

Tensions reached boiling point last year when a group of barristers, agitating for the return of the title of Queen’s Counsel (QC) for silks – last used in 1992 – tried to oust the existing Bar Association leadership team to advance their cause with the state government.

The move would require a change in legislation.

The Bar Association is expected to announce this year’s silk appointments on or by October 7.