Silk reignites QC debate
A prominent Sydney silk has invited members of the NSW Bar to debate whether the Bar Council should reconsider seeking the Attorney-General’s support for the re-instatement of QC in NSW.
Rick Burbidge QC has called a meeting to be held on 25 August at the NSW Leagues Club in Sydney at which he and other barristers will present arguments for and against restoring the QC post-nominal.
The sole purpose of the meeting is to “sound out the Bar” and find out if there is strong support for revisiting the issue, he told Lawyers Weekly.
In May, the NSW Bar Association rejected a motion brought by Sydney barrister John Hyde Page to allow silk appointees to adopt the QC title.
Philip Boulten SC, president of the Association at the time, said the decision was informed by the findings of aseven-member working group chaired by the Hon L J Priestley QC that voted against the motion four to three.
Burbidge claimed the Bar Council did not sufficiently explain its reasoning for the decision.
The SC/QC Working Group noted in its report that a survey of around 300 members of the Bar found that the majority supported the reintroduction of QC by a ratio of two to one.
In June, Burbidge circulated a memo on the subject of revisiting the QC debate. That memo attracted 484 responses; 191 respondents were in favour of a meeting to discuss the topic, 186 were not interested in a meeting and 108 were against calling a meeting.
Burbidge said recently-appointed NSW Bar Association president Jane Needham SC told him the Bar Council had decided that restoring QC in NSW was not in the public interest, and that the response to his memo had not altered that view.
When speaking with Lawyers Weekly in June, Needham said that the retention of the current SC system was “a decision made correctly in my view”, adding that she has no plans to revisit the issue.
Another silk in the pro-QC camp
While Burbidge will act as a moderator at the meeting, he said his personal view is that silks in NSW are disadvantaged because the distinction between SCs at the Bar and SCs in private practice is confusing to the public.
Burbidge argued that the growing number of solicitors with the special counsel (SC) title, referring to a role above senior associate and below partner level, and the ruling by the Law Society that solicitors may robe as barristers when appearing in court as Solicitor Advocates, has “so blurred in the public mind the roles of solicitors and the independent Bar that action to avoid potential misleading is warranted”.
“I don’t want the public to believe an SC is freely available in a solicitor’s office,” he added.
Burbidge also claimed the recent reversion to QC in Queensland and Victoria places SCs at a commercial disadvantage in international commercial litigation and arbitration.
He said it is the experience of some silks that “big matters go to QCs” in overseas jurisdictions such as Hong Kong, which has a two-tier system of senior counsel.
“This suggests there is truth in the proposition that QCs are in some mysterious way better than SCs,” he added.
Burbidge did not dispute that QC is anachronistic; however, he claimed that Australia is “clinging to the strings of the Empire and the only answer to that is ‘so be it’”.
Victorian Attorney-General Robert Clark announced in February that silk appointees in the state will have the option to have the title of QC or SC.
The state followed Queensland’s lead in restoring QC, with Attorney-General Jarrod Bleijie dumping SC altogether in 2013.