By Dr Michael Douglas, Brief Editor-at-Large
The appointment of Senior Counsel in Western Australia is regulated by PD 10.3 of the Consolidated Practice Directions of the Supreme Court of Western Australia.
That Practice Direction provides that ‘[a]ppointment to the office of Senior Counsel shall be by the Chief Justice on behalf of the Court’ having regard to four principal criteria: (a) eminence in the practice of law, especially in advocacy; (b) integrity; (c) availability; and (d) independence: PD 10.3, [3]-[4].
The Practice Direction also provides for a consultation process, which includes consultation with ‘the President or other nominee of the Law Society of Western Australia’: PD 10.3, [19](d).
His Honour Chief Justice Quinlan has written to the Law Society encouraging us to clarify aspects of the process for the appointment of Senior Counsel among members.
First, it is not correct that only matters occurring in the previous three years can be raised in relation to the suitability of an applicant. In particular, matters relating to the integrity of an applicant can be raised even if they did not occur in the last three years.
Secondly, it is not correct that persons raising sensitive matters with the Chief Justice in relation to an applicant must be identified by the Chief Justice to the applicant. Where sensitive matters are raised with the Chief Justice, they will only be raised with the applicant, and with the committee comprising other Judges with whom the Chief Justice also consults (see PD 10.3, [16]-[17]), with the express consent of the person raising the matter.
The Chief Justice has clarified:
It is the case, as reflected in paragraph 29 [of PD 10.3], that where a specific allegation adverse to an applicant for Senior Counsel is to be taken into account by the Committee, the applicant must be given the opportunity to respond to the allegation. That is a requirement of procedural fairness. Again, where that has occurred, I have always obtained the consent of the person raising the matter, both as to its disclosure and the form of the disclosure. On occasion, the matter has been able to be addressed with the applicant without identifying the person raising the matter.
In that context it is necessary for me to advise the person who has raised the issue that the extent of the information that I am able to provide to the applicant may affect the extent to which the applicant is able to respond to the matter and, in turn, the extent to which the matter forms part of the Committee’s deliberations. The extent of any disclosure nevertheless remains a matter in relation to which the wishes of the person raising the matter are always respected.
Ultimately, in relation to any matter relevant to the suitability of an applicant it is necessary to balance the confidentiality of the process with natural justice to applicants. The person raising the matter decides what may be disclosed; procedural fairness then determines how far an undisclosed matter can bear on the Committee’s deliberation.
We understand that, at the time of writing, applications for appointment to the office of senior counsel are still under consideration.
