FEDERAL COURT OF AUSTRALIA
JANE NEEDHAM SC
NOEL HUTLEY SC
DATE OF ORDER:
THE COURT ORDERS THAT:
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
1 This is an application by Ms Mary Walker for declarations and an order pursuant to s 233 of the Corporations Act 2001 (Cth) against the New South Wales Bar Association (“the Association”), Ms Jane Needham SC and Mr Noel Hutley SC.
2 The applicant practises as a barrister predominantly in New South Wales and she is and has been a member of the Association since 20 May 1988. For some time prior to 2014, the applicant’s practice has been wholly or substantially comprised of the conduct of mediations, as a mediator. Clause 4 of the Association’s Constitution provides for two types of membership, being an Ordinary Member and a Life Member. The applicant is an Ordinary Member – Class A because she is a Local Practising Barrister within the Constitution. The applicant is not Senior Counsel within the Constitution because she is not a Local Practising Barrister appointed and designated as Senior Counsel by the President, and nor has she received a commission as Queen’s Counsel. She is a member of the Outer Bar. The Constitution provides that the business and affairs of the Association are to be managed and administered by the Bar Council. The applicant has been a member of the Bar Council since 11 November 2011.
3 The Association was incorporated as a company limited by guarantee on 22 October 1936. At that point, it had a Memorandum and Articles of Association. The constituent document of the Association at the present time is its Constitution. From 29 May 2014 to 11 November 2015, Ms Needham and Mr Hutley held the positions of President and Senior Vice-President respectively under the Constitution of the Association. Mr Hutley has held the position of President since 12 November 2015. Ms Needham has not held any office of the Association or had any role in the administration of the Association’s affairs since 12 November 2015.
4 In 1992, the New South Wales Government announced that there would be no further appointments of Queen’s Counsel. The Association established its own equivalent rank of Senior Counsel. Senior Counsel are appointed after a consultation process involving members of the profession and the judiciary. The principles governing the selection and appointment of those to be designated as Senior Counsel by the President of the Association are contained in (relevantly) a Senior Counsel Protocol.
5 In 2014 and again in 2015, the applicant applied for appointment as Senior Counsel. On each occasion her application for Senior Counsel was unsuccessful. An unsuccessful applicant is not entitled to reasons for the refusal of his or her application. Under the Senior Counsel Protocol, an unsuccessful applicant may discuss their application with the President. The applicant exercised that option. As to her application in 2014, the applicant was told that her application was not considered because the Senior Counsel Selection Committee determined that it was not within the Protocol. As to her application in 2015, the applicant was told that her application was considered on its merits and that she did not have sufficient support. She was told that the Senior Counsel Selection Committee deferred consideration of the meaning of “practising advocate” in the 2015 Senior Counsel Protocol.
6 The applicant seeks the following declarations:
1. A declaration that on its proper construction the New South Wales Bar Association Senior Counsel Protocol as applicable at 14 May 2015 (2015 Protocol) does not prevent the selection or appointment of the plaintiff as Senior Counsel merely on the ground that her practice is wholly or substantially comprised of the conduct of mediations, as a mediator.
2. A declaration that on the proper construction of the 2015 Protocol the expression “practising advocates” in clause 4 may include a barrister whose practice is wholly or substantially comprised of the conduct of mediations, as a mediator.
3. A declaration that on its proper construction the New South Wales Bar Association Senior Counsel Protocol as applicable at 15 May 2014 (2014 Protocol) did not prevent the selection or appointment of the applicant as Senior Counsel merely on the ground that her practice was wholly or substantially comprised of the conduct of mediations, as a mediator.
4. A declaration that on the proper construction of the 2014 Protocol the expression “practising advocates” in clause 4 may include a barrister whose practice is wholly or substantially comprised of the conduct of mediations, as a mediator.
5. A declaration that the conduct of the Association’s affairs in connection with the 2014 and 2015 Senior Counsel application and appointment process was oppressive to, unfairly prejudicial to, and unfairly discriminatory against, the applicant.
6. A declaration that in the case of the applicant’s applications for appointment as senior counsel in 2014 and 2015 the Senior Counsel Selection Committees for each year construed the Senior Counsel Protocol in a manner inconsistent with:
a. the 2010 Bar Council Resolution; and
b. the 2011 Bar Council Resolution.
The declarations in paragraphs 1, 2, 3, 4 and 6 are sought pursuant to the Court’s power to make declarations of right in appropriate circumstances (Federal Court of Australia Act 1976 (Cth) s 21).
The declaration in paragraph 5 relates to the Court’s power to make orders under ss 232 and 233 of the Corporations Act in the circumstances identified in those sections. In addition to the declaration in paragraph 5, the applicant seeks the following order pursuant to s 233 of the Corporations Act:
7. An order pursuant to section 233 of the Corporations Act 2001 (Cth) (Act) that the Respondents publish a statement to the members of the Association to the effect that in the case of the applicant’s applications for appointment as senior counsel in 2014 and 2015 the Senior Counsel Selection Committees for those years construed the Senior Counsel Protocol in a manner inconsistent with:
a. the 2010 Bar Council Resolution; and
b. the 2011 Bar Council Resolution.
7 The respondents deny that the applicant is entitled to any relief. As to the claims for declarations concerning the proper construction of the Senior Counsel Protocols (paragraphs 1, 2, 3, 4 and 6) the respondents’ principal contention is that the subject matter of those declarations is not justiciable. As to the claims for the declaration in paragraph 5 and the order in paragraph 7, the respondents’ principal contention is that none of the grounds in s 232 of the Corporations Act have been made out. They also contend that the Court should refuse relief in the exercise of its discretion because the conduct relied on by the applicant has not affected her in her capacity as a member.
The Applicant’s Applications for Appointment as Senior Counsel in 2014 and 2015
8 The important issue is the nature of the applicant’s practice in 2014 and 2015, not the quality of her applications and, for that reason, I confine myself to a short summary of her applications.
9 In her application in 2014, the applicant states the following. She practised as a solicitor from 1986 to 1988. She joined the New South Wales Bar in May 1988. In her early years, she practised in both the civil and criminal jurisdictions. She states that in recent years, her practice has been in the areas of insurance, general commercial, professional and medical negligence and policy advice and that she has developed an extensive practice in Alternative Dispute Resolution (“ADR”). The applicant outlines her practice “in advocacy and Court work” over 26 years of practice at the Bar. The information she provides is very detailed and by reference to the criteria in paragraph 6(g) of the Senior Counsel Protocol (see  below), she sets out her involvement in appeal cases, general advocacy and advice work. In addressing any position of leadership she might hold in a specialist jurisdiction and her experience and practice in ADR, including arbitrations and mediations, (paragraph 6(g)(ii) and (vi)), the applicant states that she has an extensive practice in ADR “including mediation, expert determination, arbitration, advice on Claims Resolution Processes particularly in multi-party disputes and advice in all areas of ADR”. The applicant states that between 1 January 2011 and 31 July 2012, she conducted 90 mediations of matters before the Supreme Court, between 1 January 2012 and 31 July 2013, she conducted 92 mediations of superior court cases, and during a period of 18 months prior to her application in July 2014, she conducted 99 mediations of superior court cases. These periods overlap, but on any view from at least 1 January 2011, the applicant conducted a substantial mediation practice.
10 The applicant’s application in 2014 also contains details of her involvement in committees of the Law Council of Australia and the Association respectively which address and monitor ADR issues. The summary provided in her Outline of Closing Submissions is sufficient for present purposes. At different times, the applicant has held the following positions:
(1) Chair of the Law Council of Australia Expert Standing Committee and Advisory Committee on Alternative Dispute Resolution;
(2) Chair of the Law Council of Australia’s Litigation Section Alternative Dispute Resolution Committee;
(3) Chair of the Law Council of Australia’s International Law Section’s Alternative Dispute Resolution Committee;
(4) Member of the Association’s ADR Task Force;
(5) Chair of the Association’s ADR and Arbitration Committee;
(6) Member of the Association’s ADR Committee; and
(7) The Association’s representative on the Supreme Court ADR Committee.
11 The applicant’s application in 2015 contains much the same information as her application in 2014, although there are some differences. For example, she sets out early in the application the current briefs she holds as a practising advocate. Furthermore, she states that in the period of 18 months prior to the application in July 2015, she had conducted 101 mediations in superior court cases.
The Association’s Constitution
12 The Constitution provides that the objects of the Association include to promote the administration of justice; to promote, maintain and improve Local Practising Barristers; to promote the interests and standards of fair and honourable practice amongst barristers; generally to do all such things as may in the opinion of the Bar Council be of benefit to Local Practising Barristers; and to do all such things as are incidental or conducive to the attainment of the stated objects of the Association or any of them.
13 The Constitution provides that the Bar Council is to manage and administer the business and affairs of the Association and that it may exercise all the powers of the Association save for those which are required by the Corporations Act or the Constitution to be exercised by the Bar Association in General Meetings (cl 14.1). The Bar Council is established by the Constitution and is to consist of 21 Ordinary Members – Class A who are elected pursuant to the Constitution (cl 10.2).
14 There are five Office Bearers of the Bar Council being a President, Senior Vice-President, Junior Vice-President, a Treasurer and Honorary Secretary (cl 13.1). The President is to supervise the affairs of the Association and, by virtue of the office of President, is a member of all Committees established by the Bar Council (cl 13.6.1).
15 The Bar Council may delegate any of its powers to committees and it may delegate any of its functions, duties or powers to a committee known as the Executive Committee which consists of the Office Bearers of the Bar Council (cl 14.3.2). The President may make statements or express views about matters of public interest on behalf of the Association (cl 14.8).
16 Other than acknowledging in the definition of Senior Counsel that they are persons appointed Senior Counsel by the President, the Constitution makes no mention of the appointment and designation of Senior Counsel or the Senior Counsel Protocol.
The Senior Counsel Protocol
17 The applicant put before the Court the Senior Counsel Protocol as at June 2011, the Senior Counsel Protocol as at 10 May 2012, the Senior Counsel Protocol as at 16 May 2013, the Senior Counsel Protocol as at 15 May 2014, and the Senior Counsel Protocol as at 14 May 2015. The two Protocols which are relevant are those as at 15 May 2014 and 14 May 2015, although it is necessary to note amendments to the earlier Protocols. The Bar Council approved and disseminated the Protocols.
18 The 2014 Protocol sets out, among other things, the principles governing the selection and appointment of those to be designated as Senior Counsel by the President of the Association. Clauses 1 – 4 are in the following terms:
The principles governing the selection and appointment of those to be designated as Senior Counsel by the President of the Bar Association are as follows:
1. The designation as Senior Counsel of certain practising advocates by the President of the Bar Association, in accordance with the following principles and under the following system, is intended to serve the public interest.
2. The designation of Senior Counsel provides a public identification of barristers whose standing and achievements justify an expectation, on the part of those who may need their services as well as on the part of the judiciary and the public, that they can provide outstanding services as advocates and advisers, to the good of the administration of justice.
3. As an accolade awarded on the basis of the opinions of those best placed to judge barristers’ qualities, the designation of Senior Counsel also provides a goal for junior counsel, and should encourage them to improve and maintain their professional qualities.
4. Appointment as Senior Counsel should be restricted to practising advocates, with acknowledgment of the importance of the work performed by way of giving advice as well as appearing in or sitting on courts and other tribunals and conducting or appearing in alternative dispute resolution, including arbitrations and mediations.
19 Clauses 5 – 7 appear under the heading “Essential Criteria” and are in the following terms:
5. The system for the designation of Senior Counsel must be administered so as to restrict appointment to those counsel whose achievement of the qualities set out below displays and presages their ability to provide exceptional service as advocates and advisers in the administration of justice.
6. The qualities required to a high degree before appointment as Senior Counsel are:
(a) learning: Senior Counsel must be learned in the law so as to provide sound guidance to their clients and to assist in the judicial interpretation and development of the law.
(b) skill: Senior Counsel must be skilled in the presentation, testing, evaluation and resolution of litigants’ cases, so as to enhance the likelihood of just outcomes and/or negotiated resolution in adversarial proceedings, whether in court or otherwise.
(c) integrity and honesty: Senior Counsel must be worthy of confidence and implicit trust by the judiciary and their colleagues at all times, so as to advance the open, fair and efficient administration of justice.
(d) independence: Senior Counsel must be committed to the discharge of counsel’s duty to the court, especially in cases where that duty may conflict with clients’ interests.
(e) disinterestedness: Senior Counsel who are in private practice must honour the cab-rank rules; namely, the duty to accept briefs to appear for which they are competent and available, regardless of any personal opinions of the parties or the causes, and subject only to exceptions related to appropriate fees and conflicting obligations.
(f) diligence: Senior Counsel must have the capacity and willingness to devote themselves to the vigorous advancement of the clients’ interests.
(g) experience: Senior Counsel must have the perspective and knowledge of legal practice acquired over a considerable period.
During this time it is expected (without being exhaustive) that the applicants’ practice will demonstrate some or all of the following:
(i) experience in arguing cases on appeal;
(ii) a position of leadership in a specialist jurisdiction;
(iii) experience in conducting major cases in which the other party is represented by Senior Counsel;
(iv) experience in conducting cases with a junior;
(v) considerable practice in giving advice in specialist fields of law;
(vi) experience and practice in alternative dispute resolution, including arbitrations and mediations; and
(vii) experience in sitting on courts or tribunals.
7. Senior Counsel will have demonstrated leadership in:
(a) developing the diverse community of the Bar; or
(b) making a significant contribution to Australian society as a barrister.
20 Clause 8 provides for a Selection Committee which is to take all steps towards the selection of appointees. The Selection Committee is to consist of the President, the Senior Vice-President, four other Senior Counsel nominated by the President and approved by the Bar Council, not more than one of whom may be a member of the Bar Council, a non-practising barrister whose qualifications are such that the person is an appropriate person to be the non-practising representative on the committee and one non-lawyer community member.
21 The Selection Committee is to establish a consultation group of at least 30 Senior Counsel, at least 30 junior counsel and at least 30 solicitors specialising and experienced in the conduct of litigation.
22 An applicant for appointment as Senior Counsel is to provide in respect of all cases, including contested interlocutory applications in which they appeared in the last 18 months, and if desired, a longer period, the details relating to the cases which are set out in cl 12. After a list of those details, cl 12 provides that they “may be modified in alternative dispute resolution matters or otherwise when confidentiality requires”.
23 Clause 24 provides that the Selection Committee may determine that any application which it is satisfied does not warrant further consideration should be put aside in a preliminary selection. Clauses 25 to 31 provides for the consultation which is to take place in relation to those applications not put aside in a preliminary selection. The Selection Committee is to make a final selection of the proposed appointees. The views of the Chief Justice are sought and the President is not to appoint an applicant whose appointment the Chief Justice opposes.
24 Clauses 35 and 36 deal with the attire of Senior Counsel and the use of the post nominals, “Senior Counsel” and “S.C.”.
25 Clause 37 provides for the undertaking given by Senior Counsel to use the designation “only while they remain practising barristers in private practice or retained under statute by the Crown, or during temporary appointments in a legal capacity to a court, tribunal or statutory body”.
26 The 2015 Protocol is in material respects in the same terms as the 2014 Protocol. There were some minor changes to one or two words and the punctuation in cl 4, but no party suggested that those changes were material.
27 In terms of the issues in this case, there was a significant change to cl 4 in the 2012 Protocol. In the 2011 Protocol, cl 4 was in the following terms:
Appointment as Senior Counsel should be restricted to practising advocates, with acknowledgment of the importance of the work performed by way of giving advice as well as appearances in courts and other tribunals.
28 The 2012 Protocol also changed cl 6(g)(vi) which in the 2011 Protocol simply read:
experience and practice in alternate dispute resolution.
29 Finally, cl 12 of the 2011 Protocol did not have the qualification which appeared in the 2012 Protocol about modifying the details required by the clause in ADR matters or otherwise when confidentiality required.
The Association’s Involvement in Alternative Dispute Resolution (ADR)
30 The Association publishes a list of Bar ADR accredited mediators. A number of the persons listed are Senior Counsel (or Queen’s Counsel). The applicant’s name appears on the list. It also publishes a list of mediators for Supreme Court Referrals with the addition of the identification of areas of experience or specialisation. Again, a number of those persons listed are Senior Counsel (or Queen’s Counsel) and the applicant’s name appears on the list. There is also a similar list identifying District Court practice areas. The Association operates a scheme which it advertises online called “Bar ADR”. The Association offers solicitors, in-house counsel and members of the public with access to barristers trained and accredited in the ADR processes of mediation, arbitration and expert determination.
31 The Association accepts applications for accreditation or re-accreditation of mediators under a system known as the National Mediator Accreditation System.
32 The Association is active in the area of ADR. This is not surprising. The New South Wales Barristers’ Rules (r 38) require a barrister to inform the client or the instructing solicitor of the alternatives to a fully contested adjudication of the case. As I have said, it has an Alternative Dispute Resolution Committee and that committee assists the Association in dealing with ADR issues. For example, the Association made a submission to the New South Wales Law Reform Commission about “updating” statutory provisions providing for mediation and other forms of ADR.
33 The facts are not in dispute.
34 On 20 May 2010, the Bar Council held a meeting at which it considered a Report on the Review of the New South Wales Bar Association Protocol for the appointment of Senior Counsel prepared by The Hon R V Gyles AO QC dated 30 April 2010. A number of matters in the Protocol were discussed and various principles or positions were agreed. In relation to mediation, the following appears in the minutes:
It was agreed that skill in representation of clients in mediation, and in acting as a mediator, were relevant factors to be taken into account by the Selection Committee. The Bar Council agreed that the Selection Protocol be amended to clarify that the Selection Committee shall take into account experience and practice in mediation.
35 In 2010, a review of the Senior Counsel selection process was undertaken and the Association published a paper by the Hon Keith Mason AC QC dated 7 October 2010 which made certain observations and suggestions concerning the Senior Counsel selection process in 2010 and the process to be adopted in the future. Mr Mason had been a member of the Senior Counsel Selection Committee in 2010 as a non-practising barrister with appropriate qualifications. In his paper, Mr Mason made the following observations concerning mediation:
A related matter involved the place of mediation. The Committee recognised the significance of alternative dispute resolution in the modern law. It also acknowledged that a 2010 amendment to the Protocol had included as one of the non-exhaustive list of “experience” criteria “experience and practice in mediation”. By way of analogy, it was also recognised that some great barristers of the past have had a very substantial advice practice in particular areas. The Committee were much troubled and divided about the intent of the Protocol as regards a barrister whose major or sole contemporary practice involves participation in mediations as mediator. It had no difficulty in concluding that such a person is a “practising advocate” who satisfies the stipulation (para 4) that appointment should be restricted to such persons, so long as such an applicant (if a member of the private Bar) stands ready to observe the cab-rank principle. But the majority of the Committee felt that the essential “skill” component referred to above requires it to be demonstrated that an applicant with a mediator’s practice can demonstrate (presumably based on prior experience) that he or she presently has skill “to a high degree” in “the presentation and testing of litigants’ cases”. If this is demonstrable, then there would be no impediment stemming from the current mix of the applicant’s practice being wholly or exclusively that of a mediator. The Committee invites the Bar Council to clarify the Protocol if it has been misinterpreted.
36 Mr Mason’s report and other papers and submissions were considered by the Bar Council at a meeting on 24 March 2011. The following appears in the minutes of that meeting:
The Bar Council agreed that the Protocol should be amended to make it clear that there is no reason why a barrister who practises as a “pure mediator”, that is, who sits as a mediator or in related ADR proceedings, should not be appointed Senior Counsel.
37 The Association publishes the Bar News and in the Winter 2011 edition, the then President of the Association, Mr Coles QC, said the following:
The Bar Association has again this year reviewed the senior counsel protocol. It is crucial that the protocol remain under ongoing scrutiny in order to ensure that the senior counsel selection process continues to be relevant, and again this year the views of members were sought as to how the silk appointment process could be improved. As a result of the review process, the protocol has been amended to make it clear that there is no reason why a barrister who practices as a ‘pure mediator’, that is, who sits as a mediator or in related ADR proceedings, cannot be considered for appointment as senior counsel.
38 I will come back to the chronology of events in due course, but at this point I identify a related issue which arose in 2011.
39 The issue was whether “barristers’ work” included acting as a referee, arbitrator or mediator. The New South Wales Bar Association Rules, and in particular Rule 74(g), provided that barristers’ work included “acting as a referee, arbitrator or mediator”. The issue arose because in 2011, the Bar Associations of some States were considering the adoption of national rules which would be effected through the Australian Bar Association (“ABA”). The ABA’s national rules and, in particular, Rule 15 did not include in the description of barristers’ work, professional work acting as a referee, arbitrator or mediator. The Association adopted those Rules on 8 August 2011. At a meeting of the Bar Council on 24 November 2011, the applicant expressed the view that the New South Wales Rules which had come into force in August 2011 did not adequately address the position of barristers performing ADR work. The applicant agreed to bring forward a paper to the Bar Council on the issue. The applicant prepared a paper dated 1 December 2011 as did the Alternative Dispute Resolution Committee of the Association.
40 At a meeting of the Bar Council on 8 December 2012, the applicant’s paper and that of the Alternative Dispute Resolution Committee were considered and the following resolutions were passed:
Bar Council RESOLVED that the Alternative Dispute Resolution Committee’s suggested amendments to rule 15(d) and Rule 116 of the NSW Barristers rules be forwarded to the Australian Bar Association’s Rules Committee for consideration.
The Bar Council ALSO RESOLVED that this issue be reconsidered if no decision has been made in this regard by the Rules Committee by 1 April 2011.
The Bar Council FURTHER RESOLVED that it accepts that conducting alternative dispute resolution proceedings such as mediations does constitute ‘barristers work for the purposes of the New South Wales Barristers’ Rules of 8 August 2011, and that a note be circulated to the Bar via In-Brief advising them of Bar Council’s resolution.
41 On or about 24 January 2012, the Executive Director of the Association circulated to each member of the ABA Council, a note which contained suggested amendments to the national rules. On 19 June 2012, the Executive Director advised the applicant that the ABA had not by then agreed to the changes to Rule 15(d) of the New South Wales Rules sought by the Association. From June 2012 until about the middle of 2013, the applicant raised the issue of the need to clarify the issue under the Barristers’ Rules at meetings of the Bar Council.
42 At a meeting of the Bar Council on 25 July 2013, the applicant raised the issue again and the Bar Council resolved that the Executive Director report to it on the history of the ABA’s consideration of the suggested changes. The Executive Director prepared a note dated 7 August 2013. At a meeting of the Bar Council on 16 July 2015, the Council resolved that Rule 11 of the Legal Profession Uniform Conduct (Barristers) Rules be amended by adding “representing a client in or conducting a mediation or arbitration or other method of alternative dispute resolution”.
43 The Senior Counsel Protocol as at 16 May 2013 was, relevantly, in the same terms as the Senior Counsel Protocol as at 10 May 2012. In October 2013, the applicant was advised that her application for appointment as Senior Counsel in that year had been unsuccessful.
44 On 10 April 2014, the Bar Council endorsed the Senior Counsel Selection Committee for 2014.
45 There was a meeting of the Bar Council on 15 May 2014 and the applicant was in attendance. The President at that time was Mr Philip Boulten SC. The Bar Council considered whether any amendments should be made to the 2013 Protocol in advance of the 2014 Senior Counsel application process. Mr Alexander Street SC raised proposed amendments to the 2013 Protocol regarding the need for clarification with respect to persons “acting as a mediator” and the definition of “practising advocates”. No amendments were made to the 2013 Protocol. The applicant’s unchallenged evidence is that at the meeting Mr Boulten said words to the following effect:
There is no need to make such an amendment as it is clear that persons acting as a mediator satisfy the definition as it presently reads of “practising advocate”.
46 The 2014 Protocol was in material respects in the same terms as the 2013 Protocol.
47 On or about 25 July 2014, the applicant made an application for appointment as Senior Counsel and I have already made reference to the contents of the application. On 2 October 2014 she was advised by the President of the Association that her application had been unsuccessful.
48 As I have said, the applicant took the option of discussing her application with the President. She met with Ms Needham and Mr Hutley on 3 October 2014. Her unchallenged evidence of the discussion which took place is as follows (the participants are identified by their initials):
JN “What we are going to say to you is confidential.”
JN “You will be unhappy about this. Your application was not considered. The Senior Counsel Selection Committee determined your application was not within the Protocol.”
JN: “The Protocol needs to be fixed up to be clear about mediation. I feel very bad that this has happened.”
JN “You cannot disclose this, as what happened in the Committee is confidential.”
27. Noel Hutley SC was then sitting to my right. Noel Hutley SC expressed his regret.
28. Jane Needham SC then said words to the following effect:
JN “I can understand if you are angry and I would not hold it against you if you were.”
JN “Thank you for the approach you have taken and how you have conducted yourself. Thank you.”
49 The applicant had a second meeting with Ms Needham on 8 October 2014. Her unchallenged evidence as to the discussion which took place was as follows:
JN “Thank you for coming”.
JN “We had an Executive meeting [of the Association] last night. We will deal with the issue regarding mediation practice by fixing the Protocol to make it clear that mediation is part of the Protocol.”
MW: “This has been a running sore for 6-7 years and I do not have faith in the re-drafting. The Bar Rules also need to be amended to include mediation. This has been attempted on many occasions by the Bar Council. I have had this on the table for the Bar Council to remedy since 2011 and that should have been done. Also in respect to this year’s selection process a direction to the Senior Counsel Committee was required from the Bar Council as it was the Bar Council’s Protocol.”
JN: “The Protocol needs to be re-drafted. We need to obtain an outside draftsman. There is silk in Victoria, who we have heard has experience with this. The Protocol will be sent to him. This will be put to the Bar Council and a brief will be prepared.”
JN “Drafting by committee is not often productive.”
MW “Any re-drafting cannot include a discussion of whether acting as a mediator was part of the Protocol. Street SC moved a motion to amend the wording of the Protocol in about April 2014 to make it clear that mediation was included and Boulten SC [the then President of the Association] stated that no amendment was required as it was included in the Senior Counsel Protocol. I have stated a number of times that this issue needs to be dealt with by this Bar Council [the 2014 Bar Council] as it is the responsibility of this Bar Council and has been reviewed by this Bar Council.”
MW “The representation that my application was considered and failed needs to be rectified. The fact is that my application was not considered. This needs to be done.”
JN “I have received a letter from the silks of 9 Wentworth Chambers. I will now refer them to you.”
MW “They have written to you as President of the Bar Association. That is a matter between you and them. You will need to respond to them.”
31. Jane Needham SC repeated the need to re-draft the Protocol and I said words to the effect:
MW: I note what you say the Executive is going to do, but I reserve my personal position as I need time to think about it. I don’t need long, but I need time overnight to consider this.”
50 At a meeting of the Bar Council held on 9 October 2014, the President, Ms Needham, advised those present at the meeting that the applicant’s application was not considered by the Senior Counsel Selection Committee. She advised that the Bar Council would need to deal with the matter and a meeting would be called in the following two weeks for that purpose. She advised that the Bar Council would need to clarify the Protocol so that it was clear. The applicant said (and she was not challenged on this) that a number of those members present at the meeting said that they thought that this matter had been dealt with before.
51 On 15 October 2014, the Executive Committee of the Bar Council prepared a memorandum for the Bar Council. The applicant submits that this is an important document. It is necessary to summarise its contents in some detail. The subject matter addressed by the Executive Committee in the memorandum is the 2014 Senior Counsel Protocol. The Executive Committee refer to the fact that the Selection Committee had decided that the applicant did not meet the criteria for appointment as Senior Counsel and, accordingly, she was not considered for appointment. No qualitative assessment of the applicant’s application was made. The Executive Committee state that the wording of the Protocol was construed in a manner which resulted in the rejection of the applicant’s application as not falling within the Protocol. Her application did not advance to the stage of having the merits considered and the Executive Committee state that it was intended to note that fact in the minutes of the special Council meeting on 16 October 2014. The Executive Committee state that on the construction of the Protocol with reference to its text rather than “the previous considerations by Council” and with reference to the nature and extent of the applicant’s practice as set out in her application, the issues which arose were clause 1 and the description of “practising advocate”; clause 4 and the restriction of appointees to “practising advocates”, despite the acknowledgement of the “importance of the work performed … conducting …. mediations”; and the “essential criteria” set out in clauses 5 and 6 and, in particular, clause 5 which refers to “advocates and advisers”, and clauses 6(a), (c) and (d) insofar as they refer to acting “for” clients, and clause 6(g) and the matters referred to therein given that alternative dispute resolution was not construed as being “a specialist jurisdiction”.
52 The Executive Committee state that in reaching its view, the Selection Committee considered as a preliminary matter, whether the applicant’s application demonstrated that she was a “practising advocate” within the meaning of the relevant paragraphs of the Protocol. It also considered, as I have said, whether mediation/ADR was a “specialist jurisdiction” and determined that it was not.
53 The Executive Committee state that the President and Senior Vice-President had met with the applicant and explained to her the basis for the rejection of her application. The Executive Committee also state that it is of the opinion that the approach taken by the Selection Committee was one that was reasonably open to it on the text of the Protocol. The Executive Committee then state:
However, members of the Council will be aware that that construction does not reflect the discussions had in Council as recently as May this year as to whether a person who practises very substantially or solely as a mediator is able to be appointed Senior Counsel. The Executive recognises that there is a range of views amongst the Bench and Bar as to the nature of a barrister’s practice. However, Council was of the view earlier this year that such an appointment could be made under the current wording of the Protocol. Discussions back to 2012 when paragraph 4 was amended was also to this effect.
54 The Executive Committee also state that the fact that this had been the approach of the Bar Council for some time was beyond doubt and in connection with that statement, the Executive Committee refer to the President’s column in the Bar News, Winter 2011 edition (see  above).
55 The Executive Committee state that plainly where the wording of the Protocol leaves it open to an interpretation which does not reflect the intention of the Bar Council, it needed to be redrafted in order to provide greater clarity to future committees. The Executive Committee recommend to the Bar Council that it resolve as follows:
(a) that paragraphs 1-6 of the Protocol be redrafted with the intention that the re-draft provide specifically that any applicant who holds a current practising certificate is eligible for appointment as senior counsel if that person can demonstrate learning, skill, integrity and honesty, independence, disinterestedness, diligence and experience to the exceptional quality required for appointment, on the basis of practising substantially or wholly as a mediator, arbitrator or other ADR practitioner;
(b) that the drafting (including any recommendations by Council made for changes to first or subsequent drafts) be undertaken by an appropriate person, not a member of the NSW Bar (“the drafter”), in consultation with the President and Senior Vice President;
(c) that the appointment of the drafter, and further provision or clarification of instructions, is to be delegated to the President and Senior Vice President;
(d) that the redrafted Protocol be brought before Bar Council for adoption with the intent that any changes required by Council on that or subsequent occasions be drafted by the drafter rather than settled in Council.
56 A meeting of the Bar Council was held on 16 October 2014. The Executive Committee’s memorandum dated 15 October 2014 and a number of papers concerning the Selection Committee’s construction of the Protocol were before the Bar Council. The President delivered her report which according to the minutes of the meeting was as follows:
1. That the 2014 Silk Selection Committee recommended the appointment of 18 barristers as Senior Counsel from 102 applicants;
2. It was determined by the Committee that one of the applicants, Mary Walker, did not meet the criteria for appointment of the 2014 Silk Selection Protocol, and accordingly, Walker was not considered for appointment as Senior Counsel; and
3. No qualitative assessment was made of Walker’s application. Instead, the wording of the Protocol was construed in a manner which resulted in the rejection of Walker’s application as not falling within the Protocol. Her application did not advance to the stage of having its merits considered.
57 The minutes indicate that the Bar Council passed the following resolution:
Bar Council RESOLVED to seek advice from a Senior Counsel from outside NSW as to:
(a) the position of mediation work under the Legal Profession Act 2014, Bar Association Constitution and the New South Wales Barristers Rules; and
(b) proposed changes to the Senior Counsel Selection protocol.
Game SC is to formulate specific draft questions for advice, which will be considered by the Executive and then circulated to the Bar Council.
58 There then followed correspondence between the applicant and Ms Needham about whether a statement would be issued by the Association to the effect that the applicant’s application for appointment as Senior Counsel had not been considered on its merits. It is not necessary for me to set out the details of that correspondence.
59 A meeting of the Bar Council was held on 23 October 2014 and at that meeting the minutes of the meeting held on 16 October 2014 were confirmed.
60 A meeting of the Bar Council was held on 26 February 2015. At the meeting, the resolution passed at the meeting on 16 October 2014 and referred to above (at ) was rescinded and it was resolved to seek advice from Senior Counsel regarding the position of mediators under the Legal Profession Act 2014, Bar Association Constitution, the New South Wales Barristers Rules and the Senior Counsel Selection Protocol.
61 A meeting of the Bar Council was held on 23 April 2015. The Bar Council endorsed the President’s appointment of the 2015 Silk Selection Committee membership.
62 On 7 May 2015, there was an attempt to have a number of resolutions passed by the execution of a document which contained, among other resolutions, a resolution dealing with the Senior Counsel Protocol. Mr Bret Walker QC gave a written opinion to the effect that the resolutions were of very doubtful validity, and at a meeting of the Bar Council held on 8 May 2015, it was resolved that the motions “do not now, and cannot hereafter, have any legal effect as resolutions of Bar Council or as proxies”.
63 A meeting of the Bar Council was held on 14 May 2015. As I understand it, two draft versions of the Senior Counsel Protocol were before the Council, one largely in terms of the 2014 Protocol and the other making substantial changes, arguably making it clearer that those whose current practices involving conducting mediations could be appointed Senior Counsel. The former version was approved by the Bar Council.
64 On 31 July 2015, the applicant made an application to be considered for appointment as Senior Counsel in 2015.
65 The applicant issued this proceeding on 4 September 2015 and at that stage, as to the 2015 Senior Counsel Protocol, she sought relief as to how it should be construed.
66 On 24 September 2015, she received a letter from the President advising her that her application had been unsuccessful. On 7 October 2015, the applicant had a meeting with Ms Needham and Mr Michael Fordham SC to discuss her unsuccessful application for appointment as Senior Counsel. The applicant’s account of the discussion which was not challenged was as follows:
MW “Where is Noel?”
JN “He will not be present as he and I removed ourselves from the Selection Committee during consideration of your application.”
MF “I am here because I was one of the Committee members. I know you, I regard you as a friend, Jane asked me to come to this meeting and I agreed to come. Your application was determined on merits.”
MW “Jane, was a determination made as to what ‘practising advocate’ meant in the Protocol?”
JN “I cannot answer that.”
MW “Michael, can you tell me if there was such a determination made?”
MF “I cannot answer that. We had deferred any consideration of the meaning of ‘practising advocate’ until after your application was determined on the merits. Your application was not enough.”
MW “What does that mean?”
MF “You had no problem with ‘integrity, honesty and diligence, but you failed to have sufficient support.”
MW “What does that mean?”
MF “I cannot answer that.”
MW “Can you say anything further about that?”
MF “You did not have sufficient support from the Bench and Bar. The determination was skewed to the Bar.”
MW “What does that mean? It’s surprising. I have had a great deal of support in the past.”
MF “I cannot answer that as it would breach confidentiality.”
MW “This had been explained in the past at debriefing sessions. Does this mean that most of the responses were from the Bar and not from the Bench or were there negative comments or..”
62. Jane Needham SC interjected by saying words to the following effect:
JN “Were there more responses from the Bar than the Bench?”
MF “Responses from barristers were greater in number than those from the Bench, there was some support, but not sufficient. The criteria in the application were not sufficient.”
63. I had a copy of the 2015 Protocol with me. I handed it over to Michael Fordham SC. He pointed to paragraph 6(g) of the 2015 Protocol and we had a further discussion in words to the following effect:
MF “Your application was not sufficient to meet 6(g).”
MW “Are the criteria in 6(g) dealt with separately or together?”
MF “They were dealt with separately. They were dealt with in totality and in individual parts.”
64. Michael Fordham SC then pointed to paragraph 6(g)(vi) of the 2015 Protocol and we had a further conversation in words to the following effect:
MF “You nailed it.”
MW “Was there a focus on the last 18 months.”
MF “Yes, that is what we had to do.”
MW “Did you take into account all of the information in the application and the advocacy experience I had in the past?”
MF “We did not discard anything. However, the focus was on the last 18 months.”
MW “Were the modifications or exclusions in the Protocol and in the Senior Counsel Application and Guide in respect to ADR considered?”
65. As Michael Fordham SC did not respond, so I said words to the following effect to Jane Needham SC:
JN “Jane, can you answer this? You know that these modifications had occurred over the years in the Protocol.”
66. Jane Needham SC nodded in response.
67. I then read the last sentence of paragraph 12 of the 2015 Protocol as an example as follows:
MW “The details required in (a) to (f) may be modified in alternative dispute resolution matters or otherwise as confidentiality requires …”
68. I then said words to the following effect:
MW “There were other modifications in the Protocol, and the Application and Guide.”
69. Michael Fordham SC did not respond immediately and then said words to the following effect:
MF “ADR is seen along with everything else. All practices are focused. There are nuances of individual practices – they are all different. Every practice is a nuanced practice.”
70. I repeated my question about the modifications or exclusions in the Protocol and in the Senior Counsel Application and Guide in respect to alternative dispute resolution. Our discussion continued as follows:
MR “I can’t answer whether ADR modifications were considered.”
MF “There were 3 things I wanted to say in this meeting: first, there was no issue with integrity, honesty and diligence (without that you cannot go any further); second, support was not sufficient; and, third, your practice did not get there.”
MF “Going forward, the criteria sets out [Mr Fordham SC referred to paragraph 6(g) of the 2015 Protocol] what you need to do.”
MW “Can I please have more guidance?”
MF “Appeal cases and more cases. Appeal cases are important.”
MW “Do these need to be in the last 18 months or before”
MF “The last 18 months is an important aspect. I encourage you to run a few more cases and more appeals.”
MW “Is this to be in the 18 months before the application?”
MF “There needed to be a significant proportion of advocacy.”
MW “Was the Committee made aware that I had commenced proceedings against the Bar Association?”
JN “I cannot answer that.”
MF “I cannot answer that.”
MW “Can you give me some examples of feedback as to my capacity as a mediator?”
MF “I do not want to divulge confidences.”
MW “The comments need not be attributed to specific individuals. As this is a de-briefing session I would appreciate some feedback that I can assess and use to enhance my mediation practice.”
MF “I will think about it and will respond later.”
MW “I do not need distilled information, but the comments as they were stated would be useful.”
MF “I can give you two comments: one was that you pester people. But that is part of the job of a mediator. There is a mediator who just sits in a room and has lost a large part of their practice because of that. The other comment was that you may have difficulty influencing in large matters.”
MW “I have mediated over 90 Supreme Court matters in the last 18 months. Is this a matter of those who made the comments not understanding the mediation process and an educative issue?”
MF “We have to take them [their comments] into account.”
71. During the meeting, Michael Fordham SC said words to the following effect to me:
MF “This meeting is hard for me.”
72. I responded with words to the following effect:
MW “You may wish to think about how difficult it is for me.”
73. The meeting concluded with a discussion of general matters.
The Issues on the Application
1. Declaratory Relief
67 The power to grant declarations in s 21 of the Federal Court of Australia Act 1976 (Cth) is in a familiar form and I do not need to traverse the general authorities dealing with the power to grant declarations. They are well-known (Forster v Jododex Australia Pty Limited and Another) (1972) 127 CLR 421 at 433-439 per Gibbs J (as his Honour then was); Ainsworth and Another v Criminal Justice Commission (1992) 175 CLR 564 (“Ainsworth”) at 581-582 per Mason CJ, Dawson, Toohey and Gaudron JJ).
68 In the case of voluntary associations, the courts have traditionally declined to intervene in the affairs of the association except where a member can show that he or she has an interest in the property of the association or that the rules of the association amount to an enforceable contract (Cameron v Hogan (1934) 51 CLR 358 at 370 per Rich, Dixon, Evatt and McTiernan JJ).
69 In this case, the issues do not relate to the rules in the Association’s Constitution, but rather to the terms of the Senior Counsel Protocol and what is said by the applicant to be its proper construction.
70 The respondents submitted that the subject matter of the declarations sought in paragraphs 1, 2, 3, 4 and 6 were not justiciable. They referred to a number of cases.
71 In Malone v Metropolitan Police Commissioner (No 2)  1 Ch 344 at 352, Sir Robert Megarry VC said that moral, social or political rights or liabilities are not justiciable in the courts and that “[i]t would indeed be remarkable if by seeking a declaration instead of other relief a litigant could require the court to adjudicate on matters that otherwise would be outside its jurisdiction”. In Mutasa v Attorney-General  1 QB 114 at 120, Boreham J said that the “duty” of the Crown towards its citizens to protect them from arrest and imprisonment was one of imperfect obligation and not enforceable in the Court. It was not in a proper sense a legal duty, namely one which could be enforced in a court of law or the breach which would give rise to a cause of action is a court of law.
72 In Islamic Council of South Australia v Australian Federation of Islamic Councils Inc  NSWSC 211 (“Islamic Council of South Australia v Australian Federation of Islamic Councils”), Brereton J said (at ):
I turn then to the second main issue, which is that of justiciability. Courts do not as a matter of course intervene in the affairs of voluntary associations, unincorporated or incorporated (Cameron v Hogan (1934) 51 CLR 358, 378). In order that a court be persuaded to intervene, a plaintiff must establish some interference with its property rights or interests, or some breach of contract, or some threat to its livelihood or reputation [Field v NSW Greyhound Breeders, Owners & Trainers Association  2 NSWLR 948, (1986) 43 SR; Carter v NSW Netball Association  NSWSC 737; Rose v Boxing New South Wales Inc  NSWSC 20, ; Kovacic v Australian Karting Association (Qld) Inc  QSC 344 .
73 The applicant submitted that the matters she raised were justiciable because they involved a threat or interference with her livelihood or reputation. Although it is not entirely clear, she seemed to submit that the Court had an even broader power to make declarations. She referred to the decision of Brereton J in Rose v Boxing NSW Inc and Anor  NSWSC 20. Mr Rose was Australia’s pre-eminent amateur boxing referee and judge. Boxing NSW Inc was an association incorporated under the Associations Incorporation Act 1984 (NSW) and had control and superintendence of amateur boxing in the State of New South Wales. The Executive Committee of Boxing NSW Inc adopted a resolution that had the effect of barring Mr Rose from any role in amateur boxing in New South Wales for a period of five years. Mr Rose brought proceedings in which he contended that he was not subject to the disciplinary powers of the Executive Committee and that in passing the resolution, the Executive Committee had contravened the Association’s Constitution or the rules of natural justice. Mr Rose succeeded in obtaining a declaration that the resolution was void and of no effect and other relief.
74 Brereton J held that Mr Rose had standing to bring the proceedings on a number of grounds. The applicant relied on paragraph 58 of his Honour’s reasons which was as follows:
Thirdly, if it be wrong to hold that Mr Rose is a member in the sense I have described, one would have the situation that his ability to carry on his activities and affairs in the boxing sphere could be affected by an organisation of which he was not a member and to which he had not subscribed, yet could determine his ability to participate in boxing affairs. There are cases in which non-members have obtained declaratory relief against Associations for denials of natural justice or excesses of powers. Some of those cases were referred to by Campbell J in McClelland v Burning Palms Surf Lifesaving Club (2002) 191 ALR 759, -. Although many were cases in which a financial interest or a restraint of trade was involved - for example, the warning-off by the Trotting Club of a punter in Forbes v NSW Trotting Club Limited (1979) 143 CLR 242 - that was not so in the student council case of Harrison v Hearn  1 NSWLR 428, nor in Finnigan v New Zealand Rugby Football Union Inc.
75 The applicant also relied on Sturt and Anor v the Right Reverend Dr Brian Farran, Bishop of Newcastle and Ors  NSWSC 400. The case involved disciplinary proceedings brought against two priests by the Bishop of Newcastle pursuant to internal legislation made by the Synod of the Diocese of Newcastle. That internal legislation was a Professional Standards Ordinance 2005 (“PS Ordinance”). Sackar J examined the issue of justiciability in detail. He considered that the terms of the PS Ordinance were critical to the plaintiffs’ ability to bring the proceedings (at ). His Honour considered that the PS Ordinance manifested an intention to affect legal rights and obligations (at ) and that, and the consequences of disciplinary action, gave rise to enforceable “contractual rights” to ensure the integrity of the process. His Honour found that this was sufficient to mean that the plaintiffs’ claims were justiciable (at  and ). His Honour went on to consider whether damage to reputation formed an alternative basis upon which it could be concluded that the plaintiffs’ claim was justiciable. His Honour said (at ):
For the purposes at least of complaining about any breach of the rules of natural justice or procedural fairness I consider that the plaintiffs would have sufficient interest to litigate about the alleged inappropriate procedures and seek the appropriate relief. On this basis alone I consider the claims in relation to natural justice are justiciable. It may be that such an interest would not permit the court to entertain claims for a permanent stay based upon an alleged abuse of process I do not have to consider this however, because of my views on the nature of the PS Ordinance and the relief I consider, the plaintiffs can generally claim by reason of the alleged defects and/or irregularities in the procedures followed pursuant to it.
76 In my opinion, leaving aside oppressive conduct under the Corporations Act (which is raised in this case and is dealt with below) and the restraint of trade doctrine (which is not raised in this case), the law is as stated by Brereton J in Islamic Council of South Australia v Australian Federation of Islamic Councils.
77 It is not necessary for me in this case to address whether justiciability describes a limit on the Court’s jurisdiction to grant declaratory relief or is a description of the Court’s jurisdiction to grant declaratory relief (see Johnco Nominees Pty Ltd v Albury-Wodonga (New South Wales) Corporation  1 NSWLR 43 (“Johnco Nominees”) compare Street CJ at 53-54 with Hutley JA at 63). Nor is it necessary for me to address whether the clearly recognised cases where the Court will not make declarations are limits on the Court’s jurisdiction to grant declarations or decisive considerations in considering the exercise of the discretion to grant or withhold declaratory relief (see Johnco Nominees compare Moffitt P at 57 with Hutley JA at 63). The extent to which there are differences which have consequences may be debated. The important point is that there are limits to the circumstances that courts will grant declaratory relief. At a general level, it might be said that there must be a legal controversies (Ainsworth at 581-582 per Mason CJ, Dowson, Toohey and Gaudron JJ) or “matters which have a real legal context, and to the determination of which the Court’s procedure is apt” (Johnco Nominees at 61 per Hutley JA).
78 The applicant does not have any contractual rights in relation to the Senior Counsel Protocol and she has no property rights affected by the construction of the Senior Counsel Protocol. As I have said, to show that the matters she raises are justiciable, the applicant relies on their effect on her livelihood or the damage to her reputation or both.
79 I do not think that the matters concerning the construction of the Protocol are justiciable matters. I say that for two reasons which I think are related. First, the Protocol is not a document which creates legal rights and duties. It is in the nature of a policy document. I agree with the observation of Brereton J in In the matter of the New South Wales Bar Association and Another  NSWSC 1695; (2014) 315 ALR 146 (“Smallbone”), which also considered the 2014 Senior Counsel Protocol, at :
It is common ground that the protocol is not a contractual document. Nor is it legislative in character — it does not form part of the Barristers’ Rules. It is not part of the constitution of the bar association. It is properly characterised as a statement of the policy that the bar association intends to apply. While it is conceivable that that may have some legal consequences (for example, for misleading and deceptive conduct under the Australian Consumer Law, of which there is no suggestion here), it does not of itself create legal rights and duties. As a manifestation of a domestic rather than a public function of the bar association (compare its rule-making and disciplinary functions), decisions made for its purposes are not amenable to judicial review: compare D’Souza v Royal Australian and New Zealand College of Psychiatrists (2005) 12 VR 42;  VSC 161 at – (D’Souza) per Ashley J. That is not to say that there are not grounds upon which the relevant “rules” or decisions under them might be impugned, but that it is not sufficient for the plaintiff to establish some discretionary error of the kind that might attract relief in the public law.
Secondly, I do not think there is a relevant threat to livelihood or damage to reputation. Senior Counsel has an ability to charge higher fees and, as the Protocol itself says, it is a public identification of an ability to provide outstanding services. No doubt disappointment, even great disappointment, attends the rejection of an application. 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. As I have said, the two points are related. In Smallbone, Brereton J reviewed the Canadian authorities in relation to the restraint of trade doctrine (which speak of practical necessity and significant impairment and then said (at ):
Unlike D’Souza v RANZCP, there is barely any field of practice for a barrister that is open only to senior counsel: the only one of which I have been able to think is that of providing an advice or opinion where the contract stipulates for “the opinion of senior counsel”. The plaintiff’s application for silk itself demonstrates that he appears in cases as leading counsel with a junior, and against senior counsel. 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. Unlike in D’Souza v RANZCP, there is no impediment to a barrister engaging in virtually every aspect of practice open to a barrister without being appointed senior counsel. Unlike in Pinskter 1, there are no professional opportunities that are restricted to senior counsel. It may be accepted that appointment as senior counsel is likely to result in an increase in the complexity and importance of briefs, and the ability to charge higher fees, but even under the Californian line of authority that would be insufficient to warrant intervention. There is no impediment to junior counsel engaging in any aspect of a barrister’s practice - save for the de minimis field of providing advices where “the opinion of senior counsel” is stipulated for. Exclusion from the inner bar does not restrict a barrister’s liberty to carry on trade in such manner as her [sic] or she chooses, or restrict him or her in the work he or she may do for others, or the arrangements he or she may make with others. It does not interfere with a barrister’s liberty of action in carrying on practice. In this respect the case is quite different from D’Souza v RANZCP, in which exclusion from the College meant as a practical matter exclusion from significant fields of practice. 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.
80 In the context of threat to livelihood, the applicant relied on agreed facts which were put before me and relevantly, were based on a survey of practising barristers in New South Wales. It seems that the survey was conducted by a professional firm and it revealed, speaking very generally, that Senior Counsel earned more than junior counsel. Counsel for the Association submitted that the survey may not be sufficiently representative to allow any conclusions to be drawn. Responses were received from 52% of all practising barristers in New South Wales. The Association’s submission prompted counsel for the applicant to make an application in the course of his submissions in reply to tender part of the report of the professional firm which expressed the opinion that, in light of the number of responses, the key findings in the report should be highly representative of all practising barristers in New South Wales. I would not receive this evidence. It is opinion evidence and the respondents were entitled to object to its receipt without the author of the opinion being made available for cross-examination. It was too late for that to happen in submissions in reply.
81 I recognise that the observations of Brereton J in Smallbone were made in the context of the restraint of trade doctrine. Nevertheless, I think the descriptions of effect on livelihood or practice and on reputation are accurate and, when coupled with the first matter, mean that the matters, the subject of the declarations in paragraphs 1, 2, 3, 4 and 6, are not justiciable.
82 I should mention arguments which were put, but which I do not strictly need to address. First, it was submitted by the Association that declaratory relief would be futile because the 2014 and 2015 Senior Counsel selection process had been finalised and could not be changed, and it was not known what form the 2016 Protocol would take. Declarations about the proper construction of old Protocols may be of no use. There is force in this submission, but I would refrain from expressing a final view. The Court only reaches the point of considering futility where the matters are otherwise justiciable, perhaps on the ground of threat to livelihood or damage to reputation, and any issue of futility would need to be considered in light of the precise findings made as to these matters. Secondly, the Association submitted that none of the relief should be granted because the relevant acts in the result were those of the President who was acting persona designata. Ms Needham and Mr Hutley put a related argument in the context of the oppression claim pursuant to the Corporations Act to the effect that the conduct complained of was not conduct of the Association within s 232(a) of the Corporations Act. Again, I do not strictly need to deal with these arguments, but I indicate that I would be disposed to reject them. The Bar Council approved the Senior Counsel Protocol each year as well as the Selection Committee. It would seem that in doing so, it was acting within the general powers it is given by the Constitution. The Senior Counsel Protocol contains the major policy decisions about the appointment of Senior counsel. As seen in this case, those major policy issues are debated and determined at the meetings of the Bar Council. The applications are to be made in a form approved by the Bar Council and, as seen in this case, unsuccessful applicants are advised of the result by letter from the President under the letterhead of the Association. It is the Bar Council which is given the power in the Protocol to terminate the appointment of Senior Counsel. In terms of selection, the Selection Committee takes “all steps towards the selection of appointees” and it is to make “its final selection of the proposed appointees”. It would seem that from there that the only impediment to appointment is the opposition of the Chief Justice. In those circumstances, it seems difficult to argue that the relevant conduct was not conduct of the Association or Bar Council or conduct of the Association’s affairs.
2. Oppressive Conduct under ss 232 and 233 of the Corporations Act 2001 (Cth)
83 Sections 232 and 233 of the Corporations Act are in the following terms
232 Grounds for Court order
The Court may make an order under section 233 if:
(a) the conduct of a company’s affairs; or
(b) an actual or proposed act or omission by or on behalf of a company; or
(c) a resolution, or a proposed resolution, of members or a class of members of a company;
(d) contrary to the interests of the members as a whole; or
(e) oppressive to, unfairly prejudicial to, or unfairly discriminatory against, a member or members whether in that capacity or in any other capacity.
For the purposes of this Part, a person to whom a share in the company has been transmitted by will or by operation of law is taken to be a member of the company.
233 Orders the Court can make
(1) The Court can make any order under this section that it considers appropriate in relation to the company, including an order:
(a) that the company be wound up;
(b) that the company’s existing constitution be modified or repealed;
(c) regulating the conduct of the company’s affairs in the future;
(d) for the purchase of any shares by any member or person to whom a share in the company has been transmitted by will or by operation of law;
(e) for the purchase of shares with an appropriate reduction of the company’s share capital;
(f) for the company to institute, prosecute, defend or discontinue specified proceedings;
(g) authorising a member, or a person to whom a share in the company has been transmitted by will or by operation of law, to institute, prosecute, defend or discontinue specified proceedings in the name and on behalf of the company;
(h) appointing a receiver or a receiver and manager of any or all of the company’s property;
(i) restraining a person from engaging in specified conduct or from doing a specified act;
(j) requiring a person to do a specified act.
Order that the company be wound up
(2) If an order that a company be wound up is made under this section, the provisions of this Act relating to the winding up of companies apply:
(a) as if the order were made under section 461; and
(b) with such changes as are necessary.
Order altering constitution
(3) If an order made under this section repeals or modifies a company’s constitution, or requires the company to adopt a constitution, the company does not have the power under section 136 to change or repeal the constitution if that change or repeal would be inconsistent with the provisions of the order, unless:
(a) the order states that the company does have the power to make such a change or repeal; or
(b) the company first obtains the leave of the Court.
84 In order to qualify for orders under s 233(1), the applicant relies on s 232(a), (b) and (e) of the Corporations Act. In other words, she claims that the conduct of the Association’s affairs and the actual acts or omissions of the Association have been oppressive to, unfairly prejudicial to, or unfairly discriminatory against her, as a member, and other members who have a similar type of barrister’s practice to that of the applicant.
85 The relevant principles were not in dispute. They may be briefly stated. Sections 232 and 233 of the Corporations Act replaced s 246AA of the 1989 Cooperative Scheme (which had previously been s 260) which in turn had replaced s 320 of the Companies Codes. The different sections have been worded differently, but the differences are not material in the circumstances of this case. The important issue is the meaning of the expression “oppressive to, unfairly prejudicial to, or unfairly discriminatory against”.
86 A similar expression was used in of s 209 of the New Zealand and Companies Act 1955. In the well-known decision of Thomas v HW Thomas Ltd  1 NZLR 686 at 693, 694 and 695 Richardson J said:
In employing the words “oppressive, unfairly discriminatory or unfairly prejudicial” Parliament has afforded petitioners a wider base on which to found a complaint. … I do not read the subsection as referring to three distinct alternatives which are to be considered separately in watertight compartments. The three expressions overlap, each in a sense helps to explain the other, and read together they reflect the underlying concern of the subsection that conduct of the company which is unjustly detrimental to any member of the company whatever form it takes and whether it adversely affects all members alike or discriminates against some only is a legitimate foundation for a complaint under s 209. The statutory concern is directed to instances or courses of conduct amounting to an unjust detriment to the interests of a member or members of the company. It follows that it is not necessary for a complainant to point to any actual irregularity or to an invasion of his legal rights or to a lack of probity or want of good faith towards him on the part of those in control of the company.
Fairness cannot be assessed in a vacuum or simply from one member's point of view. It will often depend on weighing conflicting interests of different groups within the company. It is a matter of balancing all the interests involved in terms of the policies underlying the companies legislation in general and s 209 in particular: thus to have regard to the principles governing the duties of a director in the conduct of the affairs of a company and the rights and duties of a majority shareholder in relation to the minority; but to recognise that s 209 is a remedial provision designed to allow the Court to intervene where there is a visible departure from the standards of fair dealing; and in the light of the history and structure of the particular company and the reasonable expectations of the members to determine whether the detriment occasioned to the complaining member's interests arising from the acts or conduct of the company in that way is justifiable.
87 The High Court considered s 320 of the Companies (New South Wales) Code in Wayde and Another v New South Wales Rugby League Limited (1985) 180 CLR 459 (“Wayde”). The Western Suburbs District Rugby League Football Club through representatives sought relief under s 320 after it had been excluded from a competition conducted by New South Wales Rugby League Ltd, the company which controlled the game of rugby league in New South Wales and the Australian Capital Territory. The club claimed that the decisions to reduce the number of teams in the competition and then to refuse its application to participate in the competition for a particular year was unfairly prejudicial to the club. The text of ss 232 and 233 of the Corporations Act is different from the text of s 320 of the Code, but for present purposes that does not affect the importance of the High Court’s exposition of the way in which the sections operate. The plurality (Mason ACJ, Wilson, Deane and Dawson JJ) noted that it was conceded that the Board of Directors of New South Wales Rugby League Ltd made the decisions which were under attack in good faith and that there was no suggestion that in exercising its power in the empowering article to conduct such competitions between teams representing all or any of the clubs as the Board of Directors may from time to time determine, the Board failed to have regard to relevant considerations or that it took irrelevant considerations into account. The plurality considered that to be a matter of great importance and their Honours contrasted the situation before them with a case where the decision was one made by the directors of a company in exercise of the general powers of management of the company and they might bona fide adopt a policy or decide upon a course of action which is alleged to be unfairly prejudicial to a minority of the members of a company. There was greater scope for the application of s 320 of the Code in the latter situation.
88 Brennan J (as his Honour then was) said that s 320 extended the grounds for curial intervention in the affairs of a company. His Honour said a person seeking relief under s 320 need not show an irregularity or an invasion of a member’s legal rights or a lack of probity or good faith by those in control of the company towards the member before he or she could obtain relief. His Honour said that at a minimum, oppression imports unfairness. His Honour said that the Court may intervene under s 320 where a member suffers a disadvantage, disability or burden which is unfair according to ordinary standards of reasonableness and fair dealing even though (in a case involving a decision by directors) the directors have acted in good faith and for proper purposes. The question of fairness is one of fact and degree and is to be determined objectively by reference to a standard of reasonable directors possessed of any special skill, knowledge and acumen possessed by the directors. His Honour said (at 473):
The court must determine whether reasonable directors, possessing any special skill, knowledge or acumen possessed by the directors and having in mind the importance of furthering the corporate object on the one hand and the disadvantage, disability or burden which their decision will impose on a member on the other, would have decided that it was unfair to make that decision.
89 In Campbell and Another v Backoffice Investments Pty Ltd and Another  HCA 25; (2009) 238 CLR 304 at , Gummow, Hayne, Heydon and Kiefel JJ reiterated the point that the conduct of a company’s affairs may be oppressive even though the conduct is otherwise lawful, and the person engaging in the conduct believes he or she is acting lawfully.
90 In Fexuto Pty Ltd v Bosnjak Holdings Pty Ltd and Others  NSWCA 97; (2001) 37 ACSR 672 Spigelman CJ said (at ):
The statutory formulation has been extended over the years to confer on the court a wide-ranging remedial jurisdiction. The addition of the words “unfairly prejudicial to” and “unfairly discriminate against”, to the original statutory reference to “oppressive”, indicates an intention that the jurisdiction should not be confined by technical distinctions: see eg Re Saul D Harrison & Sons plc  1 BCLC 14 at 17–20; Re a Company (No 00709 of 1992); O’Neill v Phillips  2 All ER 961;  1 WLR 1092 at 1098–1101.
91 The doctrine of oppression is informed by equitable considerations and it is not open to a judge to find oppression simply on the basis of what he or she thinks is unfair (O’Neill and Another v Phillips and Others  1 WLR 1092 (“O’Neill v Phillips”) per Lord Hoffmann at 1099).
92 In Morgan v 45 Flers Avenue Pty Ltd (1986) 10 ACLR 692 at 704, Young J in the course of considering s 320 of the then Companies (New South Wales) Code expressed the view that the essential criterion in the section was that of commercial unfairness.
93 In John J Starr (Real Estate) Pty Ltd v Robert R Andrew (A’Asia) Pty Ltd and Others (1991) 6 ACSR 63, Young J expressed the view that although an applicant under s 320 was not required to show that he or she was oppressed in their capacity as a member, he would not order relief where the conduct did not affect the applicant in his capacity as a member and only affected him in his capacity (in that case) as a franchisee. This approach was followed by Brereton J in Smallbone (at ) and Emmett J expressed a similar view in HNA Irish Nominee Ltd and Another v Kinghorn and Others (No 2)  FCA 228; (2012) 290 ALR 372 at .
94 A concept which has, from time to time, been employed in deciding whether the affairs of a company have been conducted in a manner which falls within s 232 (or the earlier equivalent sections) is that of legitimate expectation. One can see the significance of the concept where, for example, the alleged oppression, unfair prejudice or unfair discrimination consists of excluding a person from the management of the company where the understanding was that all stakeholders would participate in the management of the company. Many cases under ss 232 and 233 involve an understanding or expectation of some type which is no longer being met and that circumstance forms the basis of the applicant’s claim. In O’Neill v Phillips at 1102 Lord Hoffmann said that it was probably a mistake on his part to introduce the term “legitimate expectations” and he explained the reasons for his view as follows:
It was probably a mistake to use this term, as it usually is when one introduces a new label to describe a concept which is already sufficiently defined in other terms. In saying that it was “correlative” to the equitable restraint, I meant that it could exist only when equitable principles of the kind I have been describing would make it unfair for a party to exercise rights under the articles. It is a consequence, not a cause, of the equitable restraint. The concept of a legitimate expectation should not be allowed to lead a life of its own, capable of giving rise to equitable restraints in circumstances to which the traditional equitable principles have no application. That is what seems to have happened in this case.
95 To recapitulate in terms of the general principles, an applicant for relief under ss 232 and 233 does not need to show an interference with his or her legal rights to qualify for relief. The determination of fairness is to be made objectively and having regard to all the circumstances, including any special knowledge of the actor or decision-maker. Often in determining fairness, competing considerations will have to be assessed and weighed. Equitable principles and perhaps a similar approach to that taken in judicial review proceedings in administrative law cases may inform the judgment to be made. A proper judgment under the section is not one based simply on what the judge considers fair or unfair.
96 In considering the applicant’s case under ss 232 and 233 of the Corporations Act, it is important to note two matters at the outset. First, I do not understand the applicant to be saying that the Association (if it so chose) could not adopt the position that a barrister whose practice consisted wholly or substantially of the conduct of mediators was not entitled to be appointed Senior Counsel. Secondly, I do not understand the applicant to allege that she took any particular action as a result of an understanding that a barrister whose practice consisted wholly or substantially of the conduct of mediations could be appointed Senior Counsel. From time to time, there were suggestions of this in the course of the applicant’s submission. At one level, it may be inferred that she considered that her application in 2014 would be considered on its merits, but I also note the content of her discussions with the President on 9 October 2014 referring to the long history of the issue. As to her application in 2015, there is no evidence which points to a firm conclusion either way. She had issued this proceeding, but at the same time, the Bar Council had adopted a Protocol for 2015 which was, in essence, the same as the 2014 Protocol. There was no allegation in this case of misleading or deceptive conduct.
97 As I have said, the applicant relies on the conduct of the Association’s affairs and an actual act or omission by or on behalf of the Association. Her starting point is what is said to be the intention of the Bar Council in 2014 and 2015. That intention was said to be that a barrister whose practice consisted wholly or substantially of the conduct of mediations could be appointed Senior Counsel. That intention was said to be expressed in the resolutions the Bar Council passed in 2010 and 2011 respectively, Mr Coles’ statement in the Bar News in 2011, Mr Boulten’s statement on 15 May 2014, and Ms Needham’s statement that the Senior Counsel Protocol would be fixed to make it clear that mediation was part of the Protocol.
98 The first allegation made by the applicant is that the Senior Counsel Selection Committees in 2014 and 2015 had, absent any direction or imposition of any condition or limitation upon it by the Bar Council, considered themselves to be free to depart from the intention of the Bar Council and the Association as to the proper interpretation of the Senior Counsel Protocol. I am not sure I fully understand what is being said in this paragraph. I note the following matters. First, as to the process in 2014, the Bar Council’s intention can only be expressed in the period before October 2014 and Ms Needham’s statement afterwards is irrelevant. Secondly, not all of the members of the Senior Counsel Selection Committee are parties to this proceeding. Thirdly, it was not made clear how it was said that the Senior Counsel Selection Committee was advised of the intention of the Bar Council and the Association. Fourthly, there is no suggestion that the Senior Counsel Selection Committee acted in bad faith in either 2014 or 2015. It seems to me that, in those circumstances, the Selection Committee’s obligation was to interpret the Senior Counsel Protocol as it considered appropriate and not try and decide its intention by some other process.
99 The second allegation made by the applicant is that the Association, the Bar Council and the Office Bearers have not directed, instructed or required the Selection Committees for 2014 and 2015 to construe and apply the Senior Counsel Protocol as the Bar Council intended. The obvious difficulty with this allegation is that I do not think that the Association, Bar Council or the Office Bearers were bound to give any direction or instructions or impose any requirement over and above what is in the Senior Counsel Protocol. It is the Protocol which reflects the intention of the Bar Council and once it is made, then unless it is amended, all parties are entitled to proceed according to its terms.
100 The third allegation made by the applicant is that the Association and the Bar Council have not amended the Senior Counsel Protocol to reflect the intention of the Bar Counsel as expressed in the documents and statements identified above. In many respects, this is the gravamen of her complaint under ss 232 and 233 of the Corporations Act. The following matters are to be noted. First, it is open to the Bar Council to rescind or vary any of its previous motions, subject to any particular manner and form requirement. Secondly, there is no unyielding principle that the Bar Council must act on its resolutions in a particular way. It all depends on the particular circumstances. In this case, there were the 2010 and 2011 resolutions, but they were followed by a Senior Counsel Protocol each year. The Senior Counsel Protocol reflected the then intention of the Bar Council. I am unable to see how the Association or the Bar Council were bound by previous resolutions, let alone statements by its Presidents, to approve a Senior Counsel Protocol in a particular form such that a failure to do so was conduct within s 232 of the Corporations Act. For example, the Bar Council in 2015 knew how the 2014 Protocol had been construed by the 2014 Senior Counsel Selection Committee and it approved the 2015 Protocol which was in materially similar terms. This, I think, it was entitled to do.
101 As far as the decision and approach of the Selection Committee is concerned, I cannot see how it can be said that its approach was oppressive or unfairly prejudicial or unfairly discriminatory to the applicant. The Bar Council had approved the 2015 Protocol which was in materially the same terms as the 2014 Protocol and it was the task of the Selection Committee to construe the Protocol according to its terms. It would have been open to it to take the same approach as was taken by the Selection Committee in 2014. There was nothing discriminatory or unfairly prejudicial or unfairly discriminatory in effectively going to the merits first. On the basis of such evidence as there is, the Selection Committee considered the applicant’s performance as a mediator and it is not for this Court to review that decision. It is true that in response to a question from the applicant as to what she could do to improve her chances of appointment, it was suggested that the applicant should do more appeals, but that does not mean that the Selection Committee, in effect, did not consider her performance as a mediator. Conducting more appeals is one way in which any applicant could improve their chances of appointment.
102 I am not satisfied that any of the alleged acts or omissions of the Association or the Bar Council, considered individually or collectively, fall within s 232 of the Corporations Act.
103 Again, in view of these conclusions, it is not necessary for me to consider two further arguments advanced by one or all of the respondents.
104 First, it was submitted by the respondents that relief should be refused because any conduct which the Court concluded was oppressive did not affect the applicant in her capacity as a member. She was a Local Practising Barrister and member of the Outer Bar. Furthermore, any junior counsel with a full unrestricted practising certificate, whether a member of the Association or not, is entitled to apply for appointment as Senior Counsel. Those matters probably lead to the conclusion that had there been oppression, the applicant was not affected in her capacity as a member. However, without deciding the point, I make the observation that it may be relevant to the discretion to take into account whether the member, although affected in some other capacity, has alternative relief available to him or her. Secondly, Ms Needham and Mr Hutley advanced an argument by reference to the 2010 and 2011 resolutions that the Bar Council’s intention was not as the applicant asserted. The submission was that the 2011 resolution went no further than providing that the fact that an applicant was currently practising wholly or substantially as a mediator did not disqualify the applicant from appointment as Senior Counsel. That was as far as the resolution went and did not mean that the other criteria in a Protocol did not need to be considered. In the circumstances, I do not need to consider this argument.
105 The application is dismissed.