Making a Pig’s Ear Out Of a Silk Gown

wigEach jurisdiction has its own system as to how it recognises the most eminent of its barristers. Some  jurisdictions, such as England and Wales, Victoria, and Queensland appoint Queen’s Counsel or, when there is a king on the throne, King’s Counsel. The distinction is well recognised by the public by the post-nominal QC (or KC). Traditionally, QCs wear court gowns made out of silk, and hence they are colloquially known as silks.

There are those who think the system is elitist, and think it should be abolished. One difficulty with that proposal is that, unless existing QCs are stripped of their title, younger up-and-coming barristers will have no opportunity to compete on a level playing field with those existing QCs.

There are others with more Republican sympathies who dislike the nominal link with the monarchy. Thus, the South Australian Labor government in 2008 ended the practice of appointing QCs, instead allowing the Supreme Court to award the title of SC, or “Senior Counsel”. It gave the option to QCs at the time to change their post-nominal from QC to SC, but none did so except just one, Chris Kourakis, who is now the Chief Justice of South Australia.

Other States tried the same experiment, but reversed it. Those reversals have been widely welcomed. Thus, when in 2013 at Queensland reinstated the title of Queen’s Counsel, 70 of the 73 barristers who had there been appointed SC opted to change their post-nominal to QC. Likewise in Victoria, since 2015 newly appointed silks have been given the option of either the QC title or the SC title and again, 89% of the SCs opted to have their title changed to QC.

There is no sensible doubt that QC is a more prestigious title than SC[1], and that by its opposition to QC appointments, the Supreme Court of South Australia is handicapping its senior barristers interstate and internationally. As has become all too painfully aware to me since I went to the bar, the reputation of the South Australian bench and the South Australian bar has got enough problems already, both being regarded on the East Coast as somewhat parochial.

These days, there is no longer a Labor government in power in South Australia, but a Liberal government, and it has been reported that the Cabinet has recently approved a plan whereby existing SCs in South Australia can be made QCs by application to the Attorney-General’s Department. So far so good, and very sensible, you might say.

But conflict lies ahead. The Chief Justice does not like this idea. Indeed, he has made a thinly veiled threat that if the government goes ahead with that plan, the court might well stop making any appointments at all, or might make it a condition of any appointments to SC that the new appointee must promise never to apply for QC. In a letter to the Attorney-General, Vicky Chapman, he wrote:

It should not be assumed that if the SA Bar’s proposal were adopted that the Judges would facilitate it…

The SA Bar’s proposal assumes that if the Executive (the Government) were to adopt the proposal, the Judges of the Court would continue to make appointments of Senior Counsel and not require an undertaking from Senior Counsel not to seek an appointment as Queen’s Counsel.

So, if the Supreme Court will not appoint any more SCs, will the Attorney-General appoint QCs, not on the advice of the Supreme Court, but of some other independent panel as happens in other jurisdictions? She might well, I suppose.

I should confess to some personal interest in all of this. My contemporaries in my London Chambers – Keating Chambers – took silk some 25 years ago.[2] In those days, I was practising as a solicitor, and so not then eligible.[3] Now I am at the independent bar, I do find it irritating for my status as a pre-eminent practitioner not to be recognised by the grant of silk. I went to see the Chief Justice to talk about it some months ago. I do not think he doubted my reputation interstate and internationally, but he said that the South Australian system is not to take any account of such reputation: the grant of silk is made only on the basis of court appearances in the Supreme Court of South Australia. For me, of course, that is a problem. I only do construction and energy cases, and these are almost never tried in the Supreme Court of South Australia. I have appeared as counsel in the majority of Supreme Court challenges of adjudication determinations in South Australia, sometimes on my own, and sometimes as leading counsel with the assistance of a junior, but they have not been very many of these challenges. The majority of my work involves more modern and more efficient dispute resolution processes: adjudication, mediation, expert determination, arbitration, dispute avoidance boards etc. The Chief Justice suggested I might try to find some criminal briefs so that I might appear in his court more often. This was, I thought, a surprising suggestion. Some heavyweight criminals are not particularly bright, but I doubt whether any of them are dumb enough to instruct a construction law specialist to defend them in a serious criminal trial![4] And anyway, if I was offered the title of SC on condition that I undertake never to apply for QC, I would not be prepared to accept that condition.

In truth, it is for me an irritation rather than a serious career impediment. All my briefs come from solicitors who are well aware of my reputation, and who have little interest in the politics or policies of the Chief Justice. The fees which I charge are commensurate with my reputation and experience. If I need a junior for a particular court appearance, I am given one. But for my younger colleagues at the bar, this is a real problem. South Australia has a great deal going for it, and in fields such as the arts and medicine punches well above its weight. But in legal terms, it now punches way below its weight, in the absence of new QCs represents a further handicap.

All power to the Attorney-General’s elbow, I say.




[1] In part because the title “Senior Counsel” is so easily confused with the title “Special Counsel”,  a status given by many firms of solicitors to those who do not fit into their ordinary partnership structures.

[2] There are now some 31 QCs in my Chambers.

[3] There is now some limited opportunity for solicitors to apply for silk in England and Wales. But the title of QC remains intended for leading advocates, whether that advocacy occurs in court, or an arbitration proceedings (where London is particularly important) or some other forum.

[4] I did do a criminal case in the Magistrates Court  once. It was at the insistence of the contractor for whom I had won a civil case, in part because I was able to make his opponent look like an idiot in cross-examination. That had not been particularly difficult, because his opponent was indeed an idiot. Happily, I was able to obtain an acquittal in that criminal case, and so my criminal record of acquittals is 100%. I propose to leave it that way.

Leave a Reply