Role of a Barrister
If you are not familiar with the role of a barrister the following may be of some assistance:
The role of barristers: Remarks by Sir Owen Dixon
One of the finest statements of the role and functions of barristers is found as part of the remarks of Sir Owen Dixon, Chief Justice of the High Court of Australia from 1952 to 1964, a Justice of that Court from 1929 to 1952, and a barrister from 1910 to 1929 (and an Acting Justice of the Supreme Court of Victoria from 1926 untill 1929).
From the remarks of Sir Owen Dixon on his swearing in as Chief Justice of the High Court of Australia:
|The Bar has traditionally been, over the centuries, one of the four original learned professions. It occupied that position in tradition because it formed part of the use and the services of the Crown in the administration of justice. But because it is the duty of the barrister to stand between the subject and the Crown, and between the rich and the poor, the powerful and the weak, it is necessary that, while the Bar occupies an essential part in the administration of justice, the barrister should be completely independent and work entirely as an individual, drawing on his own resources of learning, ability and intelligence, and owing allegiance to none.|
The work of solicitors in the administration of justice has the greatest possible importance, but their allegiance is perhaps more to their clients who have a more permanent or at all events a longer relation with them than the transitory relations between client and counsel when the full enthusiasm and force of the advocate are attached to the individual for a short space of time. I would like to say that from long experience on the Bench and a not much shorter experience at the Bar there is no more important contribution to the doing of justice than the elucidation of the facts and the ascertainment of what a case is really about, which is done before it comes to counsel's hands. Counsel, who brings his learning, ability, character and firmness of mind to the conduct of causes and maintains the very very high tradition of honour and independence of English advocacy, in my opinion makes a greater contribution to justice than the judge himself.
I think it is hardly useful to refer to the past except to explain the present. But my work at the Bar covered a period when I was younger and when perhaps according to the ordinary nature of man he derived greater pleasure and excitement from his activities. The activities at the Bar are greater than those on the Bench, and the responsibilities are no less.
21 April 1952 (1952) 85 Commonwealth Law Reports xi. - xii.
What do the initials QC or SC after a barrister’s name mean?
The initials QC or SC after the name of a barrister indicate that he or she is a senior counsel who may otherwise be referred to as Silk as they traditionally wear silk robes to Court. They are often distinguished from junior counsel by a rosette on the back of their robe. Silks are members of what is referred to as the Inner Bar. All other barristers, irrespective of age and seniority, are referred to as junior barristers. Usually Silks are assisted in their work both inside and outside court by a barrister from the junior bar.
The designation of a practitioner as a Senior Counsel is intended to recognize those whose standing and achievements justify an expectation on the part of the public and the judiciary that they will provide outstanding services, as counsel, to the administration of justice.
In Victoria before 2000 such barristers were known as a QC or Queen's Counsel. QCs were appointed by the Governor of the State, upon advice from the Attorney-General, usually after consultation with the Chief Justice of the Supreme Court. In 2000, the Attorney-General caused the description of Queen’s Counsel to be amended to Senior Counsel (SC) for the State of Victoria. In 2004 the Victorian Government announced that no further appointments would be made by it. The Judges of the Supreme Court of Victoria thereupon passed Rules of Court establishing its own equivalent rank of Senior Counsel who are now appointed by the Chief Justice after an exhaustive process of consultation with members of the profession and the judiciary. The Chief Justice has dictated that Senior Counsel must be, and be seen by the judiciary and by their peers to be, deserving of such recognition. The Chief Justice has also determined that the qualities required to a high degree for appointment as Senior Counsel are learning and skill, integrity and independence, maturity and a sense of public responsibility.
What is Chancery?
Chancery Chambers is named for the work once carried out by the Courts of Chancery.
The High Court of Chancery in the United Kingdom was the court that developed from the Lord Chancellor's jurisdiction. The Chancellor was the Keeper of the King’s Seal, called The Great Seal. This Seal was needed to start a lawsuit in the Court of Common Pleas (thus the Common Law), a very strict formal court which sometimes yielded unfair and unreasonable legalistic judgments, but no justice. However, the victim could Petition the King to exercise his discretion - after all he was the King - for a "fair and equitable" judgment overruling the unfair Common Law judgment. Thus the Law of Equity was administered by the Chancellor on behalf of the King in the Court of Chancery, overruling the Common Law.
Chancery was therefore the name given to the set of legal principles which supplement strict rules of law where their application would operate harshly, so as to achieve what is sometimes referred to as "natural justice." It is often confusingly contrasted with "law", which in this context refers to "statutory law" (the laws enacted by a legislature, such as Parliament), and "common law" (the principles established by judges when they decide cases).
In modern practice, perhaps the most important distinction between law and equity is the set of remedies each offers. The most common remedy a court of law can award is money damages. Equity, however, enters injunctions or decrees directing someone either to act or to forbear from acting. Often this form of relief is in practical terms more valuable to a litigant.
A final important distinction between law and equity is the source of the rules governing the decisions. In law, decisions are made by reference to legal doctrines or statutes. In contrast, equity, with its emphasis on fairness and flexibility, has only general guides known as the maxims of equity. An historic criticism of equity as it developed was that it had no fixed rules of its own, with the Lord Chancellor from time to time judging in the main according to his own conscience and thus giving rise to a saying of doing justice according to the length of the Chancellor’s foot. As time went on the rules of equity did lose their flexibility and from the 17th Century onwards equity was rapidly consolidated into a system of precedents much like its cousin common law.
Gradually the rules of equity became formalized, but they preserved important innovations, such as injunctions and trusts. Some posit that Chancery’s greatest contribution was the development of the trust, which separated legal title from beneficial title to property and made the property holder - the Trustee - liable to hold the property for the use and benefit of the true beneficial owner, without the beneficial owner getting his hands on the property so as to waste it. Thus the cornerstone of the Law of Equity is the Trust, the principles of which were refined and enforced in the Courts of Chancery, and are today enforced in all Courts of Australia.
It is a frequent misconception, however, that the Court of Chancery's primary principle of decision in the fifteenth and early-sixteenth century was Equity. The year-book reports reveal that the court was primarily a court of Conscience in its early days. Conscience—a term of art—connoted the moral law applied to prevent peril to the soul of the wrongdoer through mortal sin. The crucial twist to a modern mind is that the remedy was given to the plaintiff not to return him to his rightful position but to look after the wrongdoer's soul. The benefit to the plaintiff was only incidental. This is now understood as the doctrine of unconscionability. This is also the explanation for specific performance, which compels the sinner to put matters right, if he is to save his soul. The concept of Equity—which generally softens the harsh effects of written laws—did not take on a primary role until later in the Court's history.
The reception of the law of equity in Australia was contained in the New South Wales Act 1823 (UK) contained an express provision that the Supreme Court about to be created by the Third Charter of Justice should be a court of equity, with all the power of the Lord Chancellor to administer equitable jurisdiction as in England. It is primarily to this statutory provision that, as a matter of history, the Australian State Supreme Courts ultimately trace their equitable jurisdiction. It was as well that it was incorporated in the Act of 1823 because, in extending English law to New South Wales, s 24 of the Australian Courts Act 1828 referred only to the reception or application of “all laws and statutes” in force in England. Interpreting statutes was a common law monopoly, and in those days, a court composed of common lawyers might readily have held that such a description did not include equity.
In the United Kingdom the High Court of Chancery was merged with the courts of law in 1873, and the judges given the power to administer law and equity. It survives as the Chancery Division of the High Court. In Victoria the merger of the powers of the courts of equity with the courts of law took place in 1878 (and thereafter in other States), thus making it possible for one to seek equitable relief at the same time as legal relief.
The barristers in these chambers therefore may be seen as practising in chancery.
Barristers appear in all major cases in the Australian courts. Their unrivalled fund of experience is available to local and foreign lawyers and other professionals, governments, companies and individual clients around the world. Where a case is pursued in the Australian courts, a solicitor is used to instruct a barrister.
The same professional expertise lends authority to a barrister's advice in planning litigation and in advisory opinions. Subject to the Rules on Direct Access, clients with advisory problems may instruct us to obtain written or oral opinions without the retention of a solicitor. Conferences can take place anywhere around the world.
Arbitration and Mediations
In Chancery Chambers we have barristers with specialist experience as arbitrators and mediators.
We encourage potential barristers of the Victorian Bar to apply for Readership in our Chambers.
Frequently Asked Questions
The Victorian Bar has a useful link dealing with many Frequently Asked Questions on roles fulfilled by barristers - http://www.vicbar.com.au/b.2.asp