In the interests of justice

November 22, 2010

Many readers of this blog will know Bernie Coles QC – he probably doesn’t rate his junior brief in DCT v Chamberlain [1990] FCA 71 as a career highlight as the following extract from the judgment shows:

12. At the commencement of the hearing on 1 September, Mr K R Handley QC announced his appearance with Mr B A Coles as counsel for the Deputy Commissioner. However, Mr Handley immediately added that Mr Coles was not admitted as a practitioner in the Australian Capital Territory. Mr Handley asked me to resolve this embarrassment by making an order for the transfer of the matter to the Federal Court pursuant to s5(1)(b)(iii) of the Jurisdiction of Courts (Cross-Vesting) Act 1987. That sub-paragraph requires the Supreme Court of a State or Territory to transfer a pending proceeding to the Federal Court when it appears to the Supreme Court that “it is otherwise in the interests of justice to do so”. Mr Coles had signed the High Court roll and was, therefore, entitled to appear as counsel in the Federal Court: see Judiciary Act 1903 ss.55B, 55C.

13….Counsel for Mr Chamberlain did not object to the proposed transfer. Whether or not the matter was transferred, it would be heard by the same person, sitting in the same courtroom, and with any appeal going to the Full Court of the Federal Court. As Mr Handley frankly spelled out, the only practical effect of a transfer order would be that Mr Coles could participate in the matter as counsel, rather than have to remove his wig and adopt the role of an adviser/assistant. Under the current rules of the New South Wales Bar, Mr Handley would not have been precluded from appearing without a junior counsel, appearing as such.

14. The case for transfer was less than compelling. Nor was there any explanation as to how Mr Coles had come to accept a brief to appear in a jurisdiction where he was not admitted. But, tenuous as the case was, I thought that, there being no countervailing factors, the advantage to the Deputy Commissioner in having junior counsel of his choice appear, as counsel, justified a conclusion that the transfer of the matter was “in the interests of justice”. Accordingly, I made an order for transfer and all subsequent proceedings have been conducted in the Federal Court rather than in the Supreme Court of the Australian Capital Territory. Mr Coles remained at the Bar table, his wig triumphantly in place.

His Honour (Wilcox J) couldn’t resist putting the boot in some more when he continued at [16] “After I dealt with Mr Coles’ wig, a question arose as to the future conduct of the case….”

Creative commons attribution for the photograph.

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