A case brought by a senior barrister against the New South Wales Bar Association regarding her application to be appointed Senior Counsel has been dismissed.
Mary Walker applied for the rank of Senior Counsel in 2014 and 2015. The rank brings with it prestige and as noted by Federal Court judge Anthony Besanko, the ability to charge higher fees because it identifies lawyers who are able to provide outstanding services.
Her 2014 application was not considered because it was deemed by the Bar Association as “not within protocol” while her 2015 application was considered but rejected.
Walker, a Sydney-based barrister recognised as an expert in Alternative Dispute Resolution (ADR), sought declarations from the Bar Association including that it “was oppressive to, unfairly prejudicial to, and unfairly discriminatory against, the applicant”.
The lawyer also wanted declarations that the Bar Association’s protocols for silk appointments in 2014 and 2015 does not exclude barristers whose works are mostly or wholly in mediation as mediators from being granted the rank.
Walker also sought that “practicing advocates” in the Bar Association’s selection protocols for the said years – a needed designation to be eligible for silk appointment – may include a barrister whose practice is wholly or substantially comprised of mediations, as a mediator.
Walker has held the chairs for the Expert Standing Committee and Advisory Committee on Alternative Dispute Resolution, Litigation Section Alternative Dispute Resolution Committee, and International Law Section’s Alternative Dispute Resolution Committee at the Law Council of Australia.
However, in judge Besanko’s verdict, he found that the declaration Walker sought regarding the construction of the protocols cannot be decided by the court, saying that the protocols are “in the nature of a policy document”.
Walker does not have any contractual rights in relation to and no property rights affected by the construction of the protocols, the judge noted.
“As I have said, to show that the matters she raises are justiciable, the applicant relies on their effect on her livelihood or the damage to her reputation or both,” the judge wrote.
The judge said that he does not think there is “relevant threat to livelihood or damage to reputation”
“No doubt disappointment, even great disappointment, attends the rejection of an application,” the judge said.
“Even so, it is not any economic interest or potential economic interest which is sufficient to justify the Court’s intervention, particularly having regard to the nature of the Protocol.”
Walker practised as a solicitor from 1986 to 1988 and was admitted to the Bar in 1988. Though she practised in both civil and criminal jurisdictions in her early years, her most extensive practice has been in ADR in the areas of insurance, general commercial, professional and medical negligence and policy advice.