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Bar Talk
22 October, 2008  
Tattered silk

Justinian tabulates the new silks in NSW and marvels at the supremacy of the tick

imageOn Friday (Oct. 17) Spiggsy CJ presented the 14 successful NSW candidates for senior counsel with their special ornamented scrolls.

There was much merriment and toasting in the bar common room. Bravo and well done.

The other 113 who thought they deserved silk, but missed out, were not so ecstatic.

Almost every year we puzzle over how it all works, what are the criteria for cracking it, so to speak, and how come good people routinely miss out?

The mystery remains, but in an endeavour to peer into the opaqueness of the silk selection process Justinian has drawn up a little table of the successful 14, showing their vital statistics: chambers, practice areas, higher degrees and the number of times they’ve been reported appearing in superior court judgments.

At editorial HQ, we don’t pretend that this is a definitive document. The number of appearances is drawn from decisions reported by Austlii in the important jurisdictions: High Court, Full Federal Court, Federal Court, Courts of Appeal and Criminal Appeal and Supreme Court.

Consequently, all we can say is that we have a rough guide of what’s what. People who think we’re wide of the mark can let us know through the comments box below and we’re happy to update the calculations.

The most striking feature of the selection is the disproportionate representation of the Selborne-Wentworth axis. Eleven out of the 14 come from that bunker in the Street of Shame, or 79 percent.

The twelfth and sixth floors of Selborne-Wentworth did particularly well, together accounting for almost half the new appointees.

The next most eye-catching characteristic is the proportion who tightly pack down with the commercial, equity, trade practices scrum – at least half of the 14.

Only two criminal types were chosen, a prosecutor and a public defender – none from the private criminal bar.

Maybe this is a reflection of the selection panel itself: bar prez Anna Katzmann (Maurice Byers), next-in-line Tom Bathurst (6 Selborne-Wentworth), big wigs Stephen Gageler (ex 11 Selborne) and Tony Meagher (5 St James Hall), along with chief public defender Mark Ierace.

The weird thing is that the final selection is not subjected to a round of discussion by the bar council.

What the table does show is the range of experience among the new silks.

The longest serving barrister on the list (24-years), the seasoned Lismore public defender Christopher Bruce, has appeared in 19 Supreme Court cases whose judgments have been reported by Austlii and nine times in the Court of Criminal Appeal. We can find no mention of a High Court appearance.

Stephen Lloyd, who has been at the bar for only 10 years, was the most frequent appearer before the High Court, the full Federal Court and the Federal Court. More so than anyone else on the list.

An amazing rocket-fuelled performance.

Some of the rejectees are just as well credentialed, if not more so, in trial and appellate work as some of the silk selectees.

So how is the marque calibrated if it is not altogether a function of frequent appellant and trial experience?

The short answer is that the system of soundings with ticks and crosses being rounded up from a panoply of “stakeholders” has pushed the event into an annual review of popularity.

Disappointed contenders are invariably told by the selectors, “sorry, you didn’t get enough ticks”.

This may be a function of envy, dislike or schadenfreude.

Suspicious minds think that some of the judges, when supplied with the list of candidates, caucus as to how they will award their ticks and crosses.

If one judge decides someone should be encumbered with a cross, the other judges in the caucus will do the same, even though they have no personal knowledge of the hapless contender.

Since the applicants’ list basically goes to the same people each year for their soundings, those who repeatedly apply tend to be locked into a painful cycle of permanent knock backs.

In past years there have been special people with a well-placed patron who ensures they sail through. They don’t need ticks.

However, the tally of markings on the starters’ form is invariably a handy foil when someone has the temerity to question their rejection.

The marque of excellence is subordinated to a regime of ticks and crosses.

This incubates bitterness, division and unhappiness at the bar. It’s about time the whole system of selecting the senior prefects was scrapped.

Anyone that’s any good doesn’t need to be gonged – specially if the process is flawed.

Review the table


Reader Comments

Posted by: Wayne Cooper
Date: October 22, 2008, 3:55 am

Still, it is hilarious to read the same silly names being put forward each year by their hapless, moronic owners who just don't seem to "get" that (a) they are rubbish and (b) everyone else thinks so except them. Vive the annual list of hopefuls!
Posted by: Anonymous
Date: October 22, 2008, 7:48 pm

Thanks for the unhelpful "moronic" comments, Wayne. Your attitude demonstrates exactly why the NSW Inner Bar selection system is unfair and dysfunctional. You admit to expertise with "rubbish"; this insinuates much about you and your ignorance of the methods of the selection system. Next time, can I suggest you remember to engage your brain before you open your mouth.
Posted by: Anonymous
Date: October 26, 2008, 12:45 am

Yeah, poo-hoo Wayne. You bring us all down. Next time, don't forget to check the "anonymous post" box. It's more fun that way, and you get to keep your reputation in tact. I did check the box, right ...
Posted by: Anonymous
Date: October 28, 2008, 1:27 am

His reputation is well and truly intact as a result of that post
Posted by: Anonymous
Date: October 31, 2008, 10:48 pm

Maybe Wayne could change his surname to Kerr.