RICHARD DOUGLAS SC:
We have the pleasure of six highly regarded members of our Bar Association favouring us with their presentation this evening. The format will be as follows:
- the three junior counsel, Adrian Duffy, Damien O’Brien and Liam Dollar will address you, for about 15 minutes each, on a range of topics on the practical aspects of the silk/junior paradigm.
- that will be followed by a panel discussion where our three silk panellists, Danny Gore QC, Graham Gibson QC and Phil Morrison QC, will canvass their views in response to a number of questions put by me, and of which as a matter of courtesy I have given them some advance notice. That should take about 30 to 35 minutes.
- that will then leave us with 10 to 15 minutes for questions.
Dr Cliff Pannam QC, who among other things wrote the book “The Horse and the Law”, said on an occasion like this in Victoria about a decade ago:
… there is no more satisfying experience and rewarding professional experience that junior and senior counsel can enjoy than working, arguing and making decisions together for the purpose of presenting and advancing a client’s cause. The otherwise loneliness of the professional task becomes a shared experience with the opportunity of being able to bounce ideas off one another; to have argument and tactics mutually evaluated; and to share from possibly (and hopefully) different perspectives how an advice should be formulated, pleadings structured, or a case conducted.
I proceed to our speakers.
ADRIAN DUFFY, DAMIEN O’BRIEN AND LIAM DOLLAR THEN SPOKE — SEE THEIR PAPERS ON BAQ CPD WEBSITE.
RICHARD DOUGLAS SC:
Danny Gore, in matters in which you are asked to nominate a suggested Junior Counsel, what are the attributes that you look for in such nomination? Is it your experience with them as your Junior, that they have been opposed to you, or is it is as simple as they are in the room next door or up the corridor?
DANNY GORE QC:
Damien [O’Brien} has really touched upon this group of issues in talking about what Silk a Junior should select. It obviously depends upon the nature of the case. You have to think of a Junior who is appropriate to the particular subject matter of the case. And also for the style of case that it is, whether it is a trial, application or an appeal. We all have different skills and some Juniors are better at say outlines of argument than they are at examining or cross-examining witnesses. So, if as a Silk you want someone to do a good outline of argument, you will look in that direction. If you want someone to handle some of the major witnesses in the case, you would look in that direction. As Damien has also said, communication is important. You can’t work as a team unless you are able to communicate together.
John Gallagher will be disappointed if I didn’t tell a story from time to time in responding to these questions.
I do not remember the first case where I appeared as a Junior to a Silk, but I recall the first case where I appeared with the late and great Peter Connolly QC. He was clearly the leader at the Bar when I was finishing my studies as a Judge’s Associate. For me he was “Mr Connolly”: “Yes Mr Connolly I will tell the Judge that … blah blah blah”. When I came to the Bar I was in the small old lift in the old Inns of Court and I said “Good Morning Mr Connolly”, and he turned on me and said ‘Gore, you are at the Bar now you either call me Peter or you call me Connolly, there is no Mr at the Bar”. I said “Yes Mr Connolly, ah yes Peter, ah yes ummm….”. So how Peter picked me for our first case together I don’t know. Maybe because he knew I would be someone he could ride rough-shod over, I don’t know.
RICHARD DOUGLAS SC:
Phil, given Danny’s comments of Junior selection based on who has experience in a particular field of expertise do you think that means the junior Juniors struggle all the more to get the Junior briefs.
PHIL MORRISON QC:
I think it does. And whilst I agree with those comments I think the ability to leave small appropriate and very expensive gifts has really been overlooked [MUCH LAUGHTER]. But I can say from my own experience two things.
One is as a Silk I am not looking for some patsy to come and say yes and nod their head and sit around like a yard of pump water. I actually like people who come and contribute, stand up, speak their mind, object and intervene when they disagree, not mindlessly agree. I want someone who will bring something to the case, not just come along and be a patsy. That has its own vices. It does lead to a catch 22. I can remember when I started, I think it might have been about 10 years before I got Junior brief to anybody. Simply because I wasn’t fashionable. I didn’t have expensive gifts you know! Graham Gibson and people like David Jackson were very fashionable and they were off with Silks all the time and it used to drive me nuts. So I think that catch 22 does work.
The counter point of all that is, what can you do to make yourself sort of more attractive to Silks? There is only one answer to that … gifts! [MORE LAUGHTER]
RICHARD DOUGLAS SC:
Graham, Damien O’Brien spoke of a practice, an inimical practice as he has described it, of Juniors for a variety of reasons sending drafts to instructing solicitors of their pleadings and advices. I have certainly struck it and the excuse given, unsatisfactorily in my view, is that it is nothing to do with me, it is the relationship that they have with the solicitor that got me the Silk brief in the first place. What’s your view of that practice?
GRAHAM GIBSON QC:
The provision of “draft” opinions to solicitors must be positively discouraged. There can be no upside in that at all. You might think that there is an upside in terms of fostering or maintaining a relationship with a solicitor. It might work that way for a short period of time but inevitably it will come to grief at some stage. There is one exception I think that comes to mind. For example, you might be briefed on an issue of particular specialty or expertise, say a stamp duty matter, by a solicitor who has extensive experience in that field. In such a case, especially if the brief does not include a memo of the solicitors’ views, or a letter of advice from the solicitor to the client, it may be appropriate for Counsel to seek the solicitor’s views on a draft of the opinion.
RICHARD DOUGLAS SC:
Phil, Adrian [Duffy] raised the point about disputes between Junior and Senior arising on the run so to speak in Court. What is your view about that?
PHIL MORRISON QC:
That’s a simple one. I agree with Adrian. You have got to do it [disputation], as it were, out of sight of the Court. You can’t have a family barney going on when the Judges can hear every word you are saying and it goes down on the record and the other side can see it as well. If you disagree about objections, the practical reality of that is that mostly it will be settled by the Silk either by taking the objection or not taking the objection. If you feel really strongly about it either way, either the Silk feels that an objection should be taken or a Junior feels an objection should be taken, it is not just the person on their feet who can take an objection.
I have experienced a situation where I was taking a witness on my side and the person who was actually taking the witness on the other side didn’t take the objection, but rather the Silk did. At the time I thought it a bit unusual.
So you can do it, but resolve it as quietly as you can. There is always an opportunity, when either if it’s an examination in chief that comes to an end or alternatively it’s cross examination. There is always a pause of some sort and if necessary you can say we need five minutes to sort this out.
DANNY GORE QC :
Can I respond to that one? Because it enables me to tell another Peter Connolly story.
RICHARD DOUGLAS SC:
Certainly. They are very important these stories.
DANNY GORE QC:
They are important because these are important names for members of the Bar and most of you didn’t even appear before Peter Connolly.
RICHARD DOUGLAS SC:
One of the great members of our Bar and our Bench .
DANNY GORE QC:
Absolutely. He should have been on the High Court. He had that intellect. He was appearing before the High Court in one case. Sir Garfield Barwick was presiding. Connolly was in difficulty over a point. Barwick was really pressing him on this point. Connolly’s Junior, who I won’t name but he later became a District Court Judge, put up a CLR volume and said to him “Connolly read this, read this, read this!” This is the sort of thing that Adrian [Duffy] raised. So Connolly quickly read it, stalled on the point and said “oh look your Honour we rely upon what Justice Kitto said in the matter of so and so and so and so…”. Barwick responded to Connolly that Justice Kitto was in the dissent. And Connolly picked up the book and threw it across the Bar table and turned to his Junior and said “Whose bloody side are you on?”.
Look, I agree with what Phil [Morrison] said on the objection question, as a Silk if you say to a Junior: “Look I think you should object”. You just sense straight away the hesitation for whatever reason, if as a Silk you think you should object, up you get. There used to be an old English practice that only the examining Counsel could object, but I think the practice in Queensland is different and nationally is different. It was also a practice in England that you couldn’t split witnesses, in other words you couldn’t partly examine with the leader and partly with the Junior. I think that practice is still prevalent in Queensland, but that may change.
RICHARD DOUGLAS SC:
Probably best to raise those issues with the Judge if you are going to do it in a larger trial?
DANNY GORE QC:
Exactly. I agree. It is unfair to Counsel on his or her feet for someone sitting down to say please ask this. I mean, I hate it as a Silk and the Junior should hate it as well. So as a Silk you don’t do it unless you think you really have to. You know what level of discussion you have had with the Junior about the point. If you think it is so important it needs to be asked and you feel that the Junior is probably not across the detail, you just have to ask for an adjournment. You then go outside and talk to you Junior about it and let him or her go after that.
PHIL MORRISON QC:
Let me tell a Danny Gore story that tells you about the resolution of conflicts between Junior and Silk. I was Danny’s Junior in a case. We were at a long bar table in the District Court, Planning Court I think. There was a dispute going on between Danny and the opposing Silk about a call for a document. Danny’s opponent wasn’t responding to his call. Finally, things got tense. I was sitting to Danny’s right and the other Silk was to my right again. In front of my eyes about this far off the Bar table, this bound volume, which was the document called for, went sailing through the air. The other Silk had thrown it the air the length of the Bar table and went way past my eyes and went crash and over went the glasses of water. I thought ‘Wow this is exciting’. I reached out to get it and Danny’s hand landed firmly on my arm. He stood there and said “Your Honour, that is not a proper response to the call.” That conflict was resolved.
RICHARD DOUGLAS SC:
The stories are more important than the theory. I will go to you Graham. Liam Dollar raised the issue about disparate views being expressed by Junior and Senior Counsel. These are a good thing in terms of producing a proper result. But what if those disparate views persist in relation to the provision of opinions, trial theory, cross examination? I am not saying it happens a lot, but I have seen it happen. How does one deal with that?
GRAHAM GIBSON QC:
Well you have covered a number of different topics there. If one takes for example an opinion. Frankly, I think a frank discussion of views is to be encouraged between Silk and Junior. Now for many of you who won’t have had the experience, if the Silk has views on the topic, and you have your different views, persist if you think that is the right way to go. I think it is a most productive aspect of Counsel working together.
In respect of the presentation of a case in court, if things become intractable, ultimately the Silk bears responsibility [for the result]. But only after much talking about a case that is usually months in preparation or in execution. Discussion is to be encouraged and, if necessary, a persistent and fundamental difference may have to be reflected in the expression of differing views in an opinion.
I can’t let Danny have a monopoly on the Peter Connolly stories. Peter Connolly had an awesome reputation as a barrister and a fearsome reputation. On the subject of Juniors, and their performance, he expressed the view, or at least it’s attributed to him, that there are two kinds of junior…..those who pop in after a case to enquire as to how it has gone…..and those who don’t!
RICHARD DOUGLAS SC:
On that question of conflict, Phil or Danny, any additional comments?
PHIL MORRISON QC:
I know through the Bar Practice Course I was doing that one of the things that I have always told the Bar Prac people who are going to be Junior Barristers: they ought never try and pretend to know more than they do. It will hurt you time and time again. We should all do that and I try to do that. Who knows I have got enough ignorance. So when you get a conflict like that, both as a Junior and the Silk, you should be doing this as well. You shouldn’t just assume that you know every damn thing in the world. You [Silk] should be open to the fact that there is a contrary view, and it may well be right.
This is why I say to you I want Juniors who are not just sitting around doing nothing. I actually want people who are a proper sounding board to test what I am doing and to say that they think I am doing it wrong or have it wrong, or got some decision wrong, or I don’t understand the law or whatever else. You don’t actually have to have a brawl about it; you have a mature discussion.
One of you will give ground and if you ultimately don’t then you simply have to live with one another, maintaining your opposite views. The judge will tell you which one is right eventually.
DANNY GORE QC:
Just a brief comment on that. The way I have normally found it is if say on a point of law you and your Junior have a different view, it is quite easy to handle. In a joint opinion you identify the two competing arguments and then when you deal with prospects your assessment of prospects will reflect the differing views that you have.
So if you were both in favour of a particular point you might assess the prospects as being say 60% in favour of winning that point. But if the Silk is in favour of it and the Junior is against it but a very competent Junior you might assess the prospects a bit within the range of 40 to 60%. So you have dropped the prospects below that 50% to reflect the fact that there is recognition of a contrary argument. And you don’t even have to spell out in the opinion if you don’t want to that the Junior supports one argument and the Silk supports another. There are ways of dealing with it. Learn how to deal with it.
RICHARD DOUGLAS SC:
Senior and Junior Counsel are often involved in litigation over a period of months and there are important and not so important points in the interlocutory phases. There are some Silks who want to have everything run past them. Some are irritated by the fact that they are cc’d on every email on every interlocutory instant. Phil what is your view about that?
PHIL MORRISON QC:
I am very much in the latter [camp]. I don’t want to know everything at all. And I get very irritated if I get mindlessly copied in on things that I don’t need to know. It is normally solved if nipped in the bud very early by one or other of us saying “I don’t want to know about this’, or me saying ‘Listen, don’t bother me about all of that stuff, bother me about these things. And please, (and this has been happening very recently) tell the bloody client not to hit reply all on every damn email he gets because suddenly I start getting client emails which I don’t want.”
I suspect the true answer is it depends on your relationship with your Junior. If you are briefed with somebody – this goes both ways – if you are briefed with somebody in whom you don’t have complete confidence then you are naturally going to be a little more edgy.
RICHARD DOUGLAS SC:
Danny, have you any comment on that?
DANNY GORE QC:
The kind of advice I give to a Junior is to treat the case as your own. Pretend that you don’t have a leader. Weigh up your own skills because you will be developing outlines of arguments and pleadings, and so on, which ultimately will be reviewed appropriately by your leader and you will see how well you meet the standard. As a Junior you shouldn’t think this is easy. You should actually think this is hard because I am going to be tested by my own leader, and he or she could be really quite rude to me if I get it wrong.
If you treat the case as your own the rest will sort itself out. The leader will know that you are actually doing a great job because you are taking on all of that responsibility. The leader will let you know also how often he wants you to know something about that case.
RICHARD DOUGLAS SC:
Can I ask you, Graham, about the issue of division of labour which was canvassed by Adrian [Duffy]. He spoke about the agreed division of issues and witnesses and the like. The question I have for you is this: how early in the process of the brief would that the agreed? Should the briefing solicitor be involved in that division of labour?
GRAHAM GIBSON QC:
Although the subject of the division of witnesses and issues will evolve during the preparation of a case, they are matters that should be addressed and resolved — even if only tentatively — in good time before the hearing. As a Junior, to avoid any nasty shocks, you should discuss these topics candidly with your leader at the earliest opportunity.
As to the second aspect, it is a courtesy to involve the solicitor, and I think that should be done. That said, if I have made up my mind about it in conjunction with my Junior it won’t really matter what the solicitor says about it. But occasionally solicitors have strong views about such things and it is an issue to bear in mind.
RICHARD DOUGLAS SC:
There might be a bit of a shock, for instance, at trial for a Junior to find he or she must take a particular witness?
GRAHAM GIBSON QC:
Well, that is what I had in mind when saying so that it is hardly in anybody’s interest that anyone suffer shocks. The nature of litigation is that we suffer enough shocks unintentionally and we don’t want to inflict any more on ourselves. That depends on the nature of the case. Responding to an injunction application, for example, requires decisions to be made immediately and dealing with the matter as if it were a commando raid. If a trial is months away and there are lots of witnesses it will evolve. It can’t be left until the last minute obviously.
What I do is to share my evolving views with the Junior I am working with to see to what extent that they agree with that and are comfortable with it. I should emphasise that I would not expect an inexperienced Junior to be taking witnesses. But it it is not actually doing the Juniors a favour to give them easy ride of sitting quietly in the chair doing nothing because part of the exercise is getting experience. It is a balancing exercise.
RICHARD DOUGLAS SC:
Sometimes the Junior won’t even be in court at a shorter trial. They may not be present half the time they might be out preparing the submissions, assuming they have to make submissions.
Phil and Danny, any comment on that particular issue — division of labour, involvement of solicitor, flexibility?
DANNY GORE QC:
Another Peter Connolly story I am afraid. I was Peter’s Junior in a demurrer.
RICHARD DOUGLAS SC:
You should publish these!
DANNY GORE QC:
Along with the restaurant guide. In a demurrer to a claim for specific performance of a lease and we had a conference with the clients and Peter confidently told the client that we could successfully demur on the basis that the statement of claim didn’t identify the date of commencement of the lease. And he said to me “Gore, you go away and do an outline of argument”. It was in the Full Court of course. So I went and did some research and I found a couple of [English] Court of Appeal decisions which said that you couldn’t demur in those circumstances. I think from memory Lord Denning was on in one I had just come out of university and I thought “This is hot!”
So I went back to Connolly’s chambers and knocked tentatively on the door and he ripped the door open and said “What do you want, you haven’t got a consultation”. I said “I know Peter … Connolly … Mr Connolly, but I have found these decisions of the English Court of Appeal which say that we can’t demur in that matter of so and so…”, he said “They are wrong”. He didn’t bat an eyelid, he just said they are wrong. “Go away and do an outline of argument that says they are wrong.” I said “Why I didn’t think of that?”. As John Cleese said in A Fish Called Wanda — “We won the case”. Peter had his own style. He was a bit rough. In fact he came down to my chambers the next morning and he knocked quietly on the door and I didn’t know who it was and I opened it and he said “Gore I want to come in and say I was a bit tough on you yesterday, I apologise”.
RICHARD DOUGLAS SC:
But he still wanted you to do the outline?
DANNY GORE QC:
He still wanted me to do the outline.
RICHARD DOUGLAS SC:
I have one more question because I want to give an opportunity to these people to ask questions if they wish. It concerns dissatisfaction with Junior Counsel. There must have been occasions where you have been dissatisfied with the performance of Junior Counsel either because of their application to tasks, perhaps their ability, so much so that you think that the client’s interests would be best served by them not continuing as Junior. And perhaps they are a little resistant to that. What’s your view about that issue?
PHIL MORRISON QC:
I don’t think there is any doubt about what should happen, unless you are exercising some sort of prejudice, and hopefully you are not doing that. I have been in a situation where I formed the view that the client’s best interests required a change of Junior. I had no hesitation just as I would expect if the Junior really formed the view that I was such a gallactically stupid person that I couldn’t continue in the case. The Junior should raise it with the solicitor. So I don’t really think there is much doubt about what should happen.
And I will tell you a story, not a Peter Connolly story, a Senior Judge Administrator [Byrne J] story when he was at the Bar and in my chambers. He was fairly tough on Junior barristers even within his chambers as you may not be surprised to hear, particularly when they were working for him as his Junior. If he gave you a task, say a pleading, but usually not a full blown opinion necessarily, he would ask you, or give it to you at 4 o’clock in the afternoon and the next morning say “Have you done that yet?” If you said “No” he would say “Oh dear, we don’t have that much time, perhaps we had better get another Junior in immediately”. So he would discuss switching you out if you couldn’t do it and I think that’s the answer to it. It’s the client’s case, it has to be run the best it can be.
RICHARD DOUGLAS SC:
Graham?
GRAHAM GIBSON QC:
Fortunately perhaps I have never been in that situation but if worst comes to worst, that is right. But one would hope that it could be avoided by counselling.
RICHARD DOUGLAS SC:
Danny can I offer the microphone to anyone to wants to ask questions? Or do you want to tell another Peter Connolly story?
PHIL MORRISON QC:
While you are thinking of questions, can I give you a story about division of labour. You have to be flexible. If you divide the labour up you really have to be flexible. When I was Junior to Pincus, I was taking a particular witness, I knew that and so when that witness was giving the evidence I was there taking every note in the world and concentrating so hard my brain popped. And then the evidence finished and I stood up to cross-examine.
Well I tried to stand up to cross-examine and I got half the way out of my chair and this big hand next to me went thump on my shoulder. Pincus had decided he would take the witness after all. He didn’t bother telling me, just banged me down in my seat and stood up and did it off the top of his head. So be flexible!
RICHARD FRYBERG THEN ASKED A QUESTION ABOUT HOW JUNIORS WERE SELECTED.
GRAHAM GIBSON QC:
It is the exception rather than the rule for me to be contacted by a solicitor and asked ‘Who would you like briefed as a Junior?’ Usually the Junior has been contacted by the solicitor already, or the solicitor will have a Junior in mind.
If I am contacted the solicitor will say “We would like you to take this brief, we are thinking of briefing X as the Junior, are you comfortable with that.” And I don’t think I have ever said “No, I am not comfortable with that”. Although there are circumstances when there has been a discussion – especially when the solicitor has mentioned a few names – as to the nature of the case, the degree of the experience, the sort of matters Danny was talking about at the outset. “What is the skill set likely to be required?” In my case, I’m quite sure that much of my work comes from the recommendation of Juniors, and so the opportunity to positively recommend a Junior is somewhat limited.
RICHARD DOUGLAS SC:
Danny?
DANNY GORE QC:
It is probably a little bit more evenly divided in the case of my particular practice. Sometimes, you know, 50% of the time I will be recommending the Junior or vice versa.
One strong piece of advice I want to give to you all, or to the Juniors of course, you should make it one of your goals to be asked to be a Junior to a Silk that you don’t know. Because in a sense then you will know you have really made it because the Silk will really only have approved of that recommendation on your reputation if you don’t know him. So it might be that he was against you in a case, you were doing a case by yourself, you were a Junior to somebody else, or he was sitting in the back of the Court in the Court of Appeal one day and saw you fully argue a case. For whatever reason when a Silk asks for a Junior that he hasn’t worked with before, as I say, you will know you have made it.
RICHARD DOUGLAS SC:
I adverted earlier to what Dr Pannam QC said some years ago. Can I quote further from Dr Pannam from that same occasion. He expressed himself in a manner which fairly resonates with a number of comments this evening pertaining to the role of a junior when briefed with a silk:
For my part I find that there is nothing more interesting and challenging than to work up a case in common with junior counsel, especially with a junior who has particular views about the matter in hand whatever they might be. It is then that the client is best served by having both senior and junior counsel. Juniors whose sole contribution is to rubber stamp senior counsel’s views without any independent examination should just return the brief. They are of little or no use. A reasoned agreement with senior counsel’s views is a very different matter.
I would ask you all to show your appreciation for your participating colleagues in the usual way.
Thank you and have a good evening.
