COURT LITIGATION

Finding Answers. Delivering Solutions.
— William Lye
 
The Supreme Court of Victoria

The Supreme Court of Victoria

What barristers do?

A barrister is a specialist in court-room advocacy, drafting legal pleadings, and giving expert legal opinions. 

Traditionally, a barrister is retained directly by a solicitor, who represents the client, to advise on the law and evidence, and conduct the trial or appeal in court. Today, in limited circumstances a barrister can be retained directly by a client to provide legal and strategic advice either prior to the commencement of any court proceeding or otherwise in the area of his or her expertise, 

All barristers in Australia are self-employed and conduct their practice from chambers. They pride themselves in being able to provide a fresh and independent view of the dispute between the parties. They are strategic advisors and independent advocates.

A barrister is an officer of the Court. Her or his first duty is to the Court.

The first barrister of Chinese descent practising at the Victorian Bar was William Ah Ket. He has the lucky number of 88 on the Victorian Bar roll. Ah Ket was born in Wangaratta in 1876 and died in 1936.  

Less is known about another person - Wu Ting Fang. Wu was born in the Straits Settlement in 1842. At an early age, he was sent to Hong Kong where he learnt to read and write English.. Wu later studied law in the United Kingdom at University College London, and was called to Lincoln’s Inn in 1876 (the year Ah Ket was born). Wu became the first ethnic Chinese barrister in history. Wu and his wife, Ho Miu Ling, had a son Wu Chaoshu who studied in Atlantic City School in New Jersey and the University of London. Both father and son served as foreign diplomats to the USA under the Qing dynasty. Wu Chaoshu’s grandson is US Federal Court Judge George H Wu for the Central District of California.

SENIOR COUNSEL or queen’s counsel

The title and rank of Senior Counsel (S.C.) or Queen’s Counsel (QC), also referred to as ‘Silk’, is a recognition of a barrister’s distinguished and proven merit as an advocate in the administration of justice. Silks are members of the inner Bar, acting as leaders of the Bar, with additional professional responsibility to clients, the community, and the legal profession. Silks are typically instructed in more difficult or complex matters.

The Institution of Silk dates back to the late 16th century when Queen Elizabeth named Sir Francis Bacon as ‘learned counsel extraordinary to Her Majesty’. Sir Francis Bacon was the first ‘Crown Counsel’. In 1604, King James I appointed Sir Francis Bacon with letters patent, making him the first King’s Counsel. The title Queen’s Counsel is, therefore, of ancient lineage.

The gowns of Senior Counsel or Queen’s Counsel are made of silk. In Victoria, the silk gown incorporates a rosette attached to the back of the gown by a silk ribbon. The rosette is a square piece of black silk decorated with a bow on each corner. These bows have several layers of ruffled silk pinned with a button in the centre.

The office of Queen’s Counsel was conferred by Letters Patent for pre-eminent distinction as an advocate in Court. Letters Patent is, thus, a type of legal instrument issued by a Monarch or by the prerogative powers of the Head of State granting an office, right, monopoly, title, or status to an individual. Other individuals appointed by Letters Patent include the Governor, Deputy Governor, Executive Councillor, Minister, Supreme or County Court judge, Queen’s Counsel, and Royal Commissioner.

In most States and Territories, Senior Counsel are appointed either by the Chief Justice or by the President of the Bar Association. In Victoria, Senior Counsel are appointed by the Chief Justice pursuant to Rule 14.10 of the Supreme Court (Miscellaneous Civil Proceedings) Rules 2018 and under the seal of the Court. The appointments are entered onto the Roll of Senior Counsel kept by the Prothonotary of the Supreme Court.

A Queen’s Counsel is appointed by Letters Patent to be ‘one of His Majesty’s counsel learned in the law’. Senior Counsel in Victoria and South Australia may apply for Letters Patent to be appointed to the office of Queen’s Counsel upon invitation by the Attorney General and then upon recommendation to the Governor in Council. In Queensland, appointments are made as Queen’s Counsel. The power to appoint Queen’s Counsel through the issue of Letters Patent is exercised by the Governor in Council. See for example in Victoria the Appointment of Her Majesty’s Counsel Order 2014.

Senior Counsel who obtains a grant of Letters Patent for a commission as Queen’s Counsel undertakes not to use the designation ‘Senior Counsel’ or ‘S.C.’ from the date of her or his appointment as Queen’s Counsel.

The appointment and Letters Patent expressly provide that the appointment is without loss or gain of precedence granted previously as Senior Counsel, and with full authority to do all things that any other of Her Majesty’s Counsel may do and in the same manner and form.

The Letters Patent is a single page document addressed to the recipient setting out the particular commission. It is signed by the Governor and the Attorney General. In Victoria, the details of the Letters Patent are entered in the Register of Letters Patent administered and kept by the Secretary, Department of Premier and Cabinet.

The first Queen’s Counsel in Victoria were appointed on 10 August 1863. John Hubert Plunkett was the first Queen’s Counsel appointed on 6 June 1856 in New South Wales. It took just over 100 years for Joan Rosanove, who was the first female Queen’s Counsel in Victoria, to be appointed in 1965. Looking around the world, the first female King’s Counsel was Helen Kinnear from Canada, appointed in 1934. The first women King’s Counsel in the United Kingdom were Helena Normanton and Rose Helibron, both appointed in 1949. Dame Roma Mitchell, from South Australia, was the first woman in Australia to be appointed Queen’s Counsel in 1962. The first women appointed Queen's Counsel in New Zealand were Chief Justice Dame Sian Elias and Dame Lowell Goddard, both appointed on 4 March 1988.

Appointments to the rank of Queen’s Counsel (QC) are currently only made in the states of Victoria, Queensland, and South Australia. New South Wales, Australian Capital Territory, Northern Territory, Western Australia, and Tasmania continue to confer the rank of Senior Counsel (S.C.) only. The Commonwealth of Australia can also appoint QCs.

The title ‘S.C.’ for Senior Counsel is not to be confused with the bravery decoration the Star of Courage (‘SC’ - without the dots) that is the second highest Australian Bravery Decoration in the Group of Bravery Citations awarded for acts of conspicuous courage by members of the community in circumstances of great peril.

The use of letters after an individual’s name follows a prescribed order. Decorations and Honours under the Australian Honours System take precedence before Queen’s Counsel or Senior Counsel.

What counsel does?

William has practised as a barrister for over 30 years.

His principal areas of legal practice involve commercial disputes, corporations law, cross border matters, and alternative dispute resolution. Specific areas include computer and technology matters, oppression and shareholder disputes, enforcement of foreign judgments and awards, contract law, property law, intellectual property law (trademarks and copyright), commercial arbitration, and mediation.

William believes that every problem has an answer but not every answer is the right solution for the client. He seeks to find a strategic pathway to resolve a dispute. 

William is also admitted to practice in NSW, ACT, QLD, NT, WA, SA, and TAS and has appeared in the Courts in NSW, NT, WA, and SA, He can assist clients in their matters in all jurisdictions. He is also able to assist clients with their international arbitration disputes, including acting in international mediation.

WHAT DOES IT COST?

Litigation is costly. The process takes up much of the litigant's resources in time and money. Costs charged to clients are often based on a solicitor-client basis, and any amount recovered upon a success outcome is often less than what a client has paid as the Court usually orders costs on a party-party basis.  In some jurisdictions, each party might have to bear its own legal costs. A comprehensive index to the Scales of Costs can be found at the Law Institute of Victoria's website.

what are Counsel's feEs?

William’s hourly and daily rates are within the scale in the Senior Counsel column under the Supreme Court of Victoria Scale of Costs. An estimate of his fees will be given prior to the work being undertaken. William usually requires his fees to be deposited into the Trust Account of his clerk in advance of the work being undertaken. Click Trust Account for details.

Supreme Court of Victoria Scale of Costs for Counsel as at 1 January 2019

Supreme Court of Victoria Scale of Costs for Counsel as at 1 January 2019