The mystery of the silk fairy
Friday, July 15, 2016 Mary Walker v NSW Bar Association ... NSW bar silk selection - where Franz Kafka meets Harold Pinter ... Debriefing conversations ... Protocol perils ... Popularity contests ... Bar council's struggle to get to grips with policy decisions
JUSTICE Anthony Besanko's judgment in Mary Walker's case against the NSW Bar n' Grill on silk selection for barrister-mediators lays bare the bar's Kafkaesque decision making processes and the Pinteresque background chats between bar big-wigs and those cast into the salon des refusés (see below for full extracts).
The judgment was attended by a media release from a PR firm acting on behalf of Jeffrey Phillips SC, who was acting on behalf of Mary Walker. It was headed: "Senior & Junior Counsel, Clients - Be Concerned."
We are told that Walker, who is a member of the bar council, is currently "considering her options".
Reasons for rejection cannot be satisfactorily explored because the silk selection committee's work is mystic and confidential. Candidates are not permitted to know if the committee even properly understood the protocol, nor are they able to contest adverse remarks made about them.
Walker: considering her optionsWalker does a massive amount of mediation work at the Supreme Court level and has been putting her hand up for silk for several years. She sought declarations and an order that the bar had breached the Corporations Act by conducting its affairs in a manner that is oppressive, unfairly prejudicial or unfairly discriminatory against a member.
Besanko found that the issue of whether the senior counsel protocol applied to a barrister wholly or substantially engaged in mediations was not justiciable.
The relevant silk selection protocols in 2014 and 2015 said that appointments as SC:
"... should be restricted to practising advocates with acknowledgement 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."
This is followed by a whole pile of "essential criteria" which includes 6(g)(vi): "experience and practice in alternative dispute resolution, including arbitration and mediations."
These provisions emerged from the 2010 Roger Gyles report on the silk protocol which led the bar council to decide:
"... that the selection protocol be amended to clarify that the selection committee shall take into account experience and practice in mediation."
Keith Mason, a former prez of the CA and a silk selector, also did a paper for the bar in October 2010. He said the selection committee was divided on what the protocol means when it came to barristers whose work predominantly consisted of doing mediations.
Even though they might fit the description of "practising advocates" a majority of the committee said that mediator candidates still needed to show that they had "skill ... to a high degree ... in the presentation and testing of litigants' cases".
Mason concluded:
"The committee invites the bar council to clarify the protocol if it has been misinterpreted."
In March 2011 the bar council resolved:
"... 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."
Bar prez Bernie Coles also wrote in the Winter 2011 edition of Bar News that the protocol has been amended so that "pure mediators" can be silked.
There was confusion when in 2011 the ABA's "national" uniform barristers' rules excluded acting as a referee, arbitrator or mediator from the description of "barristers' work". The NSW bar had adopted the ABA rules, sending Sydney mediators hopping mad.
Mary Walker prepared a paper and the bar council resolved again to consider amending its rules to include mediators in the description of "barristers' work".
There was a large amount of stuffing around for about 18 months until July 2013, when the NSW bar council decided to really get a grip on things and resolved to amend the uniform rules to include mediators and arbitrators in its warm embrace.
Needham: feeling badBy May 2014 the council again pondered whether any amendments should be made to the 2013 protocol. Prez Philip Boulton said there was no need for further change since it was clear that "practising advocate" included mediators.
But it wasn't clear to the SC selection committee. In 2014 Walker's application for silk was rejected - it was not even considered because the committee said that as a mediator she did not come within the protocol.
At a rejection de-brief with president Jane Needham on October 2, 2014, Walker was told that, "the protocol needs to be fixed up to be clear about mediation. I feel very bad that this has happened ... You cannot disclose this, as what has happened in the committee is confidential."
There followed more meetings and deliberators. The bar council's senior prefects on the executive committee had a big think about and in October 2014 came up with a memo that threw the previous understandings about the protocol and mediators into disarray.
The executive said there were all sorts of other things to consider in deciding whether a "pure mediator" could be silked. In the end it thought that mediation/ADR was not a "specialist jurisdiction".
More redrafting was called for and a guru from interstate was to be commissioned to find the right words so that barristers who practised substantially or wholly as mediators, with the necessary dollops of learning, skill, integrity, honesty, independence, diligence and experience, etc. could qualify for silk.
Four months later that resolution was rescinded and instead they were going to seek senior counsel's advice on the position of mediators under the Legal Profession Act, the Bar Association Constitution, the Barristers' Rules and the Senior Counsel Selection Protocol.
By now the bar council was in turmoil with over half of them wanting to toss out the protocol and restore the royal plumage of QC. There was open warfare between the conservative QC restorationists and the old guard (president Jane Needham, and the two vices, Noel Hutley and Arthur Moses).
The monarchists met separately in what some described as an attempted coup, coming up with a heap of resolutions, which were dumped on an urgent council meeting as a fait accompli.
See: Barbarians inside the gate
Hutley: where's Noel?Bret Walker was called in and advised that these resolutions were invalid. The matter went back to the bar council and, at a meeting on May 14, 2015, two draft versions of the senior counsel protocol were considered.
One was similar to the 2014 protocol while the other made substantial changes which made it clearer that those whose practices involved conducting mediations could be appointed as SCs.
The 2014 protocol was adopted and it more or less seems to be the one still in place.
In 2015 Mary Walker again applied for silk, having mediated in over 90 Supreme Court matters in the previous 18 months. This time her application was considered, but rejected on the merits.
On October 7 that year she had an extraordinary meeting to discuss her unsuccessful application with Prez Needham and Michael Fordham SC, a member of the silk selection committee. She was told she needed to do more advocacy and that among the comments about her were that she "pestered people" and she had "difficulty influencing in large matters".
When it came to the grunt part of the reasoning, Besanko said that the protocol was little more than a bar policy document. It did not give rise to legal rights and the interpretation of the protocol by the committee did not pose a threat to Walker's livelihood or reputation. He said:
"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 to court's intervention ..."
On the Corporations Law front, Walker submitted that the bar council's conduct was "oppressive, unfairly prejudicial or unfairly discriminatory". A protocol that included people who practice wholly or substantially as mediators and arbitrators was the express intention of the bar council, yet the protocol had been not been amended.
Contentiously, HH thought it was up to the selection committee to interpret the SC protocol in any appropriate way and that bar council was not bound to give directions to the committee.
"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."
Application dismissed.
Rejection de-briefs
Mary Walker met president Jane Needham SC following the committee's failure to consider her application. This is Walker's unchallenged version of the conversation on October 3, 2014:
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.
Noel Hutley SC was then sitting to my right. Noel Hutley SC expressed his regret. 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.
The applicant had a second meeting with Jane Needham on October 8, 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.
Mary Walker: 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.
Jane Needham SC repeated the need to re-draft the Protocol and Walker 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.
Fordham: "I can't answer ..."There was a meeting the following year, on October 7, 2015, after the selection committee considered Walker's application, but rejected it. The meeting took place between Mary Walker, Jane Neeham and Michael Fordham SC:
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 ...
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.
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).
[See 6(g) here in 2016 protocol - same as 2015 protocol.]
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.
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?
As Michael Fordham SC did not respond, so I said words to the following effect to Jane Needham SC:
MW: Jane, can you answer this? You know that these modifications had occurred over the years in the Protocol.
Jane Needham SC nodded in response. 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 ...'
I then said words to the following effect:
MW: There were other modifications in the Protocol, and the Application and Guide.
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.
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:
MF: 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: Yes.
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.
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