The motion to allow barristers to incorporate has been quashed, with the head of the pro-incorporation camp blaming the fear, uncertainty and doubt principle.
A total of 745 members of the NSW Bar voted against allowing individual barristers to offer legal services through a single-member, sole-director company, compared to 374 votes in favour of the motion.
The ballot was taken at yesterday’s (17 September) general meeting of the NSW Bar Association, which was attended by around 300 barristers.
John Hyde Page (pictured) of 5 Selborne Chambers, the barrister leading the pro-incorporation campaign, told Lawyers Weekly that he believes many members who withheld support from the motion were operating on the fear, uncertainty and doubt principle.
Their ‘no’ vote, he claimed, had been influenced by numerous senior members of the Bar who, leading up to the ballot, had described the proposal as “something akin to the end of the world”.
Such comments also prompted the withdrawal of 50 proxy votes in favour of the motion in the week prior to the general meeting, he added.
Hyde Page also admitted that the pro-incorporation camp did not effectively refute technical analysis from the opposition, including submissions by respected silks Tony Slater QC and Bret Walker SC.
“Many people told me the pro-incorporation technical analysis would have had a much bigger impact if it had been released sooner,” said Hyde Page, explaining that a document he penned titled The Personal Benefits of Incorporated Practice was sent to members of the NSW Bar just days before the general meeting.
Hyde Page could not discuss the events of the meeting for confidentiality reasons; however, he revealed that the vote on incorporation was handled in a “proper and respectful fashion that was a credit to all participants”.
Despite the disappointing result, Hyde Page said he is not disheartened and plans to continue to look for ways to modernise and improve the NSW Bar. He added that the campaign has, at least, cast a spotlight on the issue.
“There was a substantial body of opinion that didn’t think this motion would get even 100 votes, so I think this process has been very valuable in as much as it has shown that there is a constituency for responsible and constructive change.”
Lawyers Weekly also sought comment from NSW Bar Association president Phillip Boulten SC, a vocal opponent of incorporation, but did not receive a response prior to publication.
Yesterday’s decision ends the public stoush between the supporters and opponents of incorporation, which culminated in the threat of legal action last week (11 September).
Lawyers Weekly exclusively reported that Hyde Page issued a notice of intended legal action to Boulten, the NSW Bar Association president, over his right, as a director of the Bar Council, to inspect proxy votes relating to the now defeated motion.
Two weeks before that, opponents of incorporation made an unsuccessful attempt to exclude more than 200 proxy votes from the ballot. They argued that that the proxy form did not accurately describe the motion that would be before the general meeting, and that member proxies were being sought before the issue of incorporation had been the subject of advice and members had been given the benefit of that advice.
Both sides of the incorporation debate had also thrashed it out in the press on the topic of tax implications of incorporation.
Supporters of the motion told Lawyers Weekly earlier this month (4 September) that its opponents overstated the danger of incorporated barristers having their tax benefits cancelled by Part 4A of the Income Tax Assessment Act 1936; while opponents continued to warn of possible legal ramifications.