Juliette Brodsky

Yes, I just want to talk a little with a view to some of the topics you just raised. I might just start with the fact all of you took silk – James Merralls of course, you’re still a practising silk. What is being silk worth these days in your view?

Clive Tadgell

Jim’s the only one capable of …

James Merralls

What do you mean by that?

JD Phillips

Well it’s different from being the old QC with the two counsel and the two thirds rule.

Juliette Brodsky

What I’d be interested to know is a bit more about the two counsel rule, you know, is it good or is it bad?

James Merralls

I’m in favour of the two counsel rule. I think that if you go back historically, silks were counsel who were prepared to do only cases which merited the briefing of two counsel. That marked off the area of work that they were prepared to do and which the award of silk recognised them as being capable of doing. If you don’t have a two counsel rule, you allow people to be appointed silk who don’t intend to appear only in cases of that kind, who will appear alone and who are really juniors who are receiving slightly higher fees.

Clive Tadgell

It debases the currency.

JD Phillips

I think it destroys it, I really don’t see any point to taking silk, as it were. Unless it is simply a recognition by the Bar of long service, meritorious service.

James Merralls

As it was in Canada. It became that in Canada.

JD Phillips

Surely South Australia and Western Australia must have been like that in our days?

James Merralls

I don’t think it was.

JD Phillips

Wasn’t it? Even with the undivided profession?

James Merralls

Yes, I don’t think it was.

Bill Ormiston

It made one think about the decision. Each of us took silk at the time when it was in force and one really did have to think whether one could practise and earn an income, with the burden, not merely of paying a higher fee, but always having a junior there who would be paid two thirds of your fee.

JD Phillips

Some failed.

Bill Ormiston

Yes and it weeded out a lot of people because they really didn’t think they could take that risk and there were examples of people who had done so and were not able to earn a sensible living and they had to go to the Barristers Benevolent Fund for assistance. I won’t mention names because I think some might still be alive… but I do remember when I took silk which was in 1975, I had a conversation with Stephen Charles who had a good practice before and later, (a) very first class commercial practice around the Commonwealth. And we both were talking just at Easter as to whether we had made the right decision, and as to whether we were getting the right amount of work, and I think we came to the conclusion, because we were getting half as much again in effect for the brief fees, probably we’d survive. There was a big risk and you weren’t quite sure what was going to happen and, if you don’t have that risk, I think that you do get people applying who just think, well they’ve been there for a considerable time and somehow had long service and they deserve it and that’s not really the point of Queen’s Counsel, senior counsel.

JD Phillips

Well in those days, there were some who didn’t take it because they didn’t take the risk, they wouldn’t take the risk, and there was another snag too when we started. When you applied for silk, you had to notify all those who were your juniors that you were applying for silk and because it was not done …

Clive Tadgell

Sorry, all those who were senior.

JD Phillips

No, juniors, because then anybody – oh that’s right, yes, you had to notify all those who were your seniors but not silks, wasn’t it?

Bill Ormiston

Yes.

JD Phillips

Yes, that you were taking silk, because it was not done once a year it was done whenever the Chief Justice granted an application and applications could be made any time. So anyone who was your senior and was still a junior could maintain his seniority by applying and if he was granted silk he would remain your senior. Now that was a deterrent, too, because if you were too young, all you’d do is provoke a lot of applicants above you and the outcome might not be so clear.

John Batt

I think it had changed by the time I took silk in 1977.

James Merralls

This is when we came to the Bar, not when we took silk.

JD Phillips

Yes, when we took silk, it was done once a year.

James Merralls

I think that system survived for the whole of Ned Herring’s chief justiceship.

Clive Tadgell

He used to ask you to come across and bring your fee book, didn’t he, so I’m told.

Bill Ormiston

I’m not sure he asked everybody to bring their fee book. There were some whom he didn’t need to ask because it was obvious they would excel, and there were others about whom he had doubts, and they were asked to bring their fee book.

JD Phillips

The Chief Justice had a more intimate knowledge of the applicant in those days too, because as I understood it, it was largely based on the amount of appellate work you did and the Chief Justice usually sat in the Full Court, and there was no Federal Court. If you were just doing local government practice, local government fights, you were just regarded as too specialised to be regarded, and so were the people who were doing divorces all the time, which was too specialised.