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Appointment of silk in NSW: declaratory relief July 13, 2016

ASSOCIATIONS AND CLUBS – declaratory relief sought pursuant to s 21 of Federal Court of Australia Act 1976 (Cth) – whether subject matter of declarations sought is justiciable – when Court will intervene in internal affairs of voluntary associations – where association is a company limited by guarantee – where issues do not relate to rules in association’s Constitution but rather the terms of a Senior Counsel Protocol – where no contractual or property rights affected – whether issues involve threat or interference with applicant’s livelihood or reputation.

CORPORATIONS – members’ rights and remedies – oppression – whether conduct of the association’s affairs in connection with applicant’s Senior Counsel application and appointment process was oppressive to, unfairly prejudicial to or unfairly discriminatory against the applicant – Corporations Act 2001 (Cth), ss 232, 233.

Walker v New South Wales Bar Association [2016] FCA 799


39    The issue was whether “barristers’ work” included acting as a referee, arbitrator or mediator. The New South Wales Bar Association Rules, and in particular Rule 74(g), provided that barristers’ work included “acting as a referee, arbitrator or mediator”.  The issue arose because in 2011, the Bar Associations of some States were considering the adoption of national rules which would be effected through the Australian Bar Association (“ABA”). The ABA’snational rules and, in particular, Rule 15 did not include in the description of barristers’ work, professional work acting as a referee, arbitrator or mediator.  The Association adopted those Rules on 8 August 2011.  At a meeting of the Bar Council on 24 November 2011, the applicant expressed the view that the New South Wales Rules which had come into force in August 2011 did not adequately address the position of barristers performing ADR work.  The applicant agreed to bring forward a paper to the Bar Council on the issue.  The applicant prepared a paper dated 1 December 2011 as did the Alternative Dispute Resolution Committee of the Association.

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