Annual Silks Dinner 2009

The speech delivered by the Honourable Justice Logan RFD on behalf of the Judiciary at the Queensland Bar Association Silks’ Dinner which took place at the Brisbane Club on 16 December 2009 is reproduced below.

Fellow Silks, our spouses and partners, Mr O’Connor, other invitees.

It is ten years since my appointment to the rank of Senior Counsel.  A Douglas was Bar President then and another member of that great clan is again. Those familiar with the history of Scottish chivalry and our respective clan badges would know that makes for a happy coincidence.

Congratulations to the new Silks.  You have advanced in the pecking order at the Bar. 

We in the judicial branch of the profession also have a pecking order. Its nature was never better explained than by Master Funduk of the Queens Bench Division of the old Alberta Supreme Court in South Side Woodwork (1979) Ltd v RC Contracting Ltd1: 

It is a relief that Master Funduk did not have to cope with a judicial system in which an appellate bench comprised or included judges rotated from the ranks of trial judges. I refrain from speculating as to the inspiration he might thereby have found in the notion of little peckers becoming big peckers only to revert to little peckers once again. 

But enough of judicial peckers and more of what the pecking order at the Bar entails. 

This year we have three new leaders. There is a certain symmetry in that number.

Three members of the Senior Bar died this year: 

• The Honourable Peter Connolly;
• The Honourable Kevin Ryan; and
• Tom Parslow Esq

I want briefly to reflect on those three and also on another group of three living appointees to the Senior Bar for the lessons they provide about the qualities leaders at the Bar must exhibit.

Peter Connolly

Peter Connolly could be a martinet. He set high standards for himself and expected the same of others.  He was always receptive to sound argument, no matter how junior its author might be. I had the following experience in appearing before him when very junior and working within the predecessor to your office, Mr Rice. I sought from him in Supreme Court Chambers an order nisi to review a decision given by a Magistrate in Federal criminal Jurisdiction. I explained the nature of the proposed challenge and handed up a draft order.  He studied it, then me.  This is what he said:

That experience provided the inspiration for some of the few corrections I ever felt necessary in drafts provided by Sandy Horneman-Wren when I had the benefit of him as my junior.

Kevin Ryan

Kevin Ryan came from the ranks, sadly not often encountered these days, of those who combined high attainment in legal academia with high level experience in practice.  Many of us here encountered him in each capacity and are the better for that.  What I did not know until it was revealed in Keith Wilson’s moving eulogy at his funeral was that his return to the Law School and related relinquishment of the senior diplomatic post he then held were in answer to a very particular plea from Sir Walter Campbell about meeting a need at the Law School.  He was later the most courteous and conscientious of judges. 

Tom Parslow

I had the pleasure of sharing lunch (fish and chips) and a long afternoon’s conversation with Tom at his home in Sandgate when researching the World War II edition of the Bar News in 2005. I asked him whether as a senior Crown Law Officer he had ever felt any diffidence about tendering unwelcome advice to senior political figures. Tom’s response was, “When you’ve faced the Japs in the jungle, tendering such advice was never a problem”.  Achieving high rank in the Law and the Army never caused him to forget his humble origins. Many of a later generation, including a good many later judges, with no family connection with the Law, got a start in the profession at the Crown Law Office because of Tom Parslow. You, Mr Byrne are one of his inheritors.

Three living appointees to the Senior Bar

I refer to Chief Justice de Jersey, Justice Dowsett and Justice Byrne. There is now a later generation who have no first hand knowledge of just how effective each of these gentlemen was when in active practice at the Senior Bar and of the sacrifice each made for the public good in taking judicial office when he did. 

Of late, the Commonwealth has instituted a process of soliciting by advertisement and then vetting by committee applications for appointment to the Federal Court. That is a reaction to perceived deficiencies in a Commonwealth and also State process whereby an Attorney-General, sometimes with little or no appropriate consultation, or in defiance of advice thereby provided, advised a Vice-Regal officer to make particular superior and other court appointments.  There could though be virtue in the old system.  A wise Attorney-General could head hunt. I rather doubt that the need met by the appointees I have just mentioned would have been as well filled without “headhunting”.  I note that a Senate committee in which another of our number, Senator the Honourable George Brandis, participated, has recently recognised this potential virtue.2

Qualities of Leadership

Reflecting on these Silks, past and present, discloses the following qualities:

1. intellectual rigour
2. lengthy, proven experience in the application of legal knowledge in court and in advising
3. solicitous attention to the development of Juniors
4. moral courage and independence
5. public duty and service to the profession, our State and the Nation.

Entitlement, merely ex officio, to a higher fee is not among them.

It is has never been more important than at present for the Senior Bar to discharge its wider leadership responsibilities. The Bar today faces very real challenges in relation to the current flirtation with national regulation of the legal profession. We in the Judiciary face those too, for the regulation of those who appear before the Courts is an incident of judicial power, State and Federal.

The Senior Bar is the natural recruitment base for the superior courts and, increasingly, the District or County Courts of our country. It is no use complaining about the quality of the bench unless experienced members of the Senior Bar are willing to take appointments and are known by the public to be willing. The contemporary distribution of judicial power as between Commonwealth and State courts is such that it is more important than ever that Silk selection and appointment processes serve the public need for high quality advocates in all of the courts and for a pool from which appropriate appointments to them can be made.

The outcome of that process this year gives cause for confidence in that regard.

Please join me in toasting our new Senior Counsel:

The Honourable Justice Logan RFD A Judge of the Federal Court of Australia

Footnotes

1. [1989] A.J. No. 111, 95 A.R. 161 at 166-67, para 51-53 (Alta. Q.B., Master)
2. The Senate, Legal and Constitutional Affairs References Committee, Australia’s Judicial System and the Role of Judges, December 2009, at p. 19. 

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