THE BAR GAZETTE
Another view which was expressed widely was that
for the satisfactory operation of a pre-trial scheme it
would be necessary for counsel to be present who would
be the counsel actually engaged on the trial later on.
It was pointed out that there was already difficulty in
arranging a time which would suit two or three counsel
even as things stood at the moment, and it was suggested
that busy counsel would be unable to attend on the pre­
trial conferences. It was also suggested in one letter
that, allowing twenty minutes for each conference, one
Supreme Court Judge would not be able to handle
enough conferences in a week to provide a week’s work
at a later stage. This particular critic expressed the view
that delay might be increased and that the system would
result in far more costly litigation. Another widely
voiced view was that, once a trial period for a scheme
was introduced, the procedure would be permanent and
there would be no possibility of going back to the
present system, even if a pre-trial system was not found
to be very satisfactory. Several writers suggested that
some of the commercial causes rules might with ad­
vantage be adapted to jury cases and there was even a
suggestion that a Judge could be empowered to make
orders at the conclusion of a case penalising in costs
a litigant who spent time in proof of matters which were
not substantially in dispute. However, this writer pointed
out that it was entirely legitimate for counsel to refuse
to make admissions which might force the other side
to call a witness so that he could be cross-examined.
It would be difficult for a Judge to determine in many
cases whether what time was actually wasted by a liti­
gant.
Of those who were not totally opposed to some change
in the present system, the great majority took the view
that the English system of a summons for directions
was more suitable for New South Wales conditions than
the pre-trial type of conference which takes place in
the United States. Some feared that the pre-trial con­
7
ference would inevitably be used as a means of exerting
pressure for settlement of cases and others took the view
that the earlier the true issue was grappled with, the
more likely it was that time and expense would be
saved and cases which were properly susceptible of
settlement brought to a conclusion without actually being
litigated.
Nearly all the people who sent in their views took the
firmest view that juries should not be abolished. A
number stated that in their opinion the only way to
decrease the time lag in hearings is to have more Courts
and Judges.
Final Report
In the light of these comments, the sub-committee
substantially modified its views, and indicated a pref­
erence for a modified form of the English summons for
directions procedure.
The report also contained an analysis of the time
likely to be taken up in the hearing of summonses for
direction and came to the conclusion that, if it were to
make any useful contribution to reducing the back-log
of cases unheard in the Supreme Court, both the Judges
and the Bar would need to spend a very great deal
of what is now out-of-Court time in the hearing of
such summonses.
Recommendations were made protecting the position
of the Bar as to fees.
This report was submitted to the Government Law
Reform Committee for its consideration, and, it is
understood, was placed before its sub-committee No. 11
upon which Meares, Q.C., is the representative of the
Bar Association.
It is also understood that sub-committee No. 11 has
given the matter consideration. So far there is no indica­
tion that there will be any early change in the present
system of call-over.
The Law Council of Australia
The Law Council of Australia is about to enter a
stage of its development which will be of great import­
ance to the legal profession in Australia. Both in rela­
tion to the substantial questions of policy which it
handles and the machinery available to it for dealing
with its affairs, new developments are opening up pros­
pects for the Law Council as an institution of significance
in Australia. The Law Council is the top organisation
of the whole Australian legal profession, but its work
and its methods of going about its business are not well
known to the rank and file members of the profession
throughout Australia.
Recent developments provide an opportunity to dis­
cuss the Law Council and its activities. The responsibili­
ties that it will be carrying in the next few years may
serve to show the profession how important it is to have
sound national organisation and leadership. Australian
lawyers will come to realise that the Law Council of
Australia has much more to do than organise conven­
tions and that the Australian legal profession is likely
to be judged, both at home and abroad, to a considerable
extent on the quality of its work.
On the Law Council, representatives of all the con­
stituent Bar Associations and Law Societies throughout
Australia work together on matters of interest to all
lawyers throughout Australia. The Bar Associations of
New South Wales, Victoria and Queensland are mem­
bers of the Law Council. They have recently formed
an Australian Bar Association which will concern itself
with matters of special interest to members of the Bar,
but the Australian Bar Association is being particularly
careful not to cut across or intrude into those areas of
activity which are truly the concern of the whole pro­
fession. The Law Council is accordingly growing more
and more important as the institution to handle, for all
Australian lawyers, matters which affect them in common
8
THE BAR GAZETTE
and matters which they can best handle by acting
together.
It has often been said that the Council is concerned
only with organising Law Conventions. This is, of
course, quite untrue but nevertheless the organisation of
these conventions is, especially nowadays, very important
to the profession. Now that communication between
countries is relatively easy more and more lawyers are
able to attend conventions in other countries. In recent
years, Australia has been very fortunate in having many
distinguished visitors to Australian Law Conventions.
This has been of value in assisting to maintain and raise
the status of the legal profession in the eyes of the
rest of the community, and it has helped to foster
support for the basic ideas of the rule of law by demon­
strating how much we have in common with other
countries and by aiding representatives of newly emerging
countries in Asia and Africa to gain some experience
of the working of our legal system. These conventions
are not, therefore, to be thought of as mere social oc­
casions. Furthermore, the Australian legal profession
has been accorded the honour of arranging the Third
British Commonwealth Legal Convention which will be
organised in Sydney in 1965. The maturity and standing
of the profession will be judged, to some extent, by its
success in handling this big task.
The legal profession of the British Commonwealth is
one of its central and most significant institutions. Now
that the British Commonwealth is changing its character
in many important respects, not the least being in the
economic field, such important common features of Com­
monwealth countries as their very similar legal systems
assume a new importance. The United Kingdom has
always understood the necessity for ensuring that as each
newly independent country moved into full membership
of the British Commonwealth it had sufficient lawyers
and a sufficiently strong appreciation of the central idea
of the rule of law. It has been more difficult in recent
years as the movement to independence became more
rapid to achieve completely satisfactory results in this
part of the task of colonial disengagement. However, one
element of British Commonwealth affairs which will
become recognised more and more is the system of legal
regulation and professional organisation which have
been derived from British sources and are widely spread
throughout the Commonwealth. Indeed, where political
ties have not been strong enough to maintain member­
ship of the Commonwealth, as in the case of Burma,
the connection between the legal profession of that
country and the profession in other British Common­
wealth countries becomes more important. The Austra­
lian legal profession and the Law Council of Australia
have a very big role to play—with the United Kingdom
and Canada—in providing stimulus for the development
of common activities and standards throughout the legal
profession of the Commonwealth. The Law Council
therefore has no reason to apologise for its interest in
Law Conventions and particularly those in British Com­
monwealth countries.
However, its work is of much greater significance than
would be realised by those who think of it solely as a
promoter of conventions. Recent developments in rela­
tion to the executive machinery of the Law Council may
serve to indicate the range of its work and responsibilities
and the problems of organisation which it faces.
The Council itself and its executive have this year
had to consider the future organisation of the administra­
tive work of the Council. This administrative work has,
so far, been handled on an honorary basis with parttime secretarial assistance. The Secretariat has, in ac­
cordance with the provisions of the Constitution of the
Council, been located in Sydney for the past five years
and the constitution now requires, unless some special
decision is made to the contrary, that the secretariat
shall be moved to Melbourne for the next five years.
Consideration has been this year given to the question
whether the time has come for the establishment of a
permanent paid secretariat. The present Honorary
Secretary, Toose, Q.C., who has done an enormous
amount of work for the Council, and whose term of
office is coming to an end this year, has firmly recom­
mended the appointment of a full-time paid Secretary
of high qualifications to deal with the considerable
amount of administrative work and the work of re­
search and collation which is necessary at the Law
Council level. His view has been that there is now
more work than an Honorary Secretary can reasonably
be expected to perform. His view has also been that
a profession of the importance and size of the legal
profession needs a permanent national secretariat to
enable it to play to the full the part which it should
play in national affairs.
However, the establishment of such a secretariat is
expensive and would involve doubling the affiliation
fees of the constituent bodies. Some of these bodies
have been reluctant to double their contribution unless
and until it has been fully demonstrated that the
honorary system can no longer work.
It is obvious that if and when a permanent secretariat
is established its location will have to be decided upon.
The present system, whereby the secretariat is located
alternately in Sydney and Melbourne in five-year cycles,
would probably not be satisfactory if a permanent full­
time staff were to be employed. It was necessary during
this year to decide whether to establish this full-time
secretariat with a doubling of the affiliation fees and
fix its permanent location, or to persist a little longer
with the honorary system. In the outcome, the decision
has been made to persist a little longer with the
honorary system.
It has, nevertheless, been recognised that the amount
of work to be done, would place an unfair burden on
the new Melbourne Secretary and Assistant Secretary,
and the whole system of handling Law Council business
has, therefore, been reviewed. The Executive and the
Law Council itself have recently adopted a report of a
sub-committee which considered the forms of organisa­
tion of the secretariat and of the work of the Council.
In order to relieve the Honorary Secretary and Assis­
tant Secretary of part of the burdensome duties which
have been falling upon the holders of those offices it
has been decided that members of the profession may
be called upon, as the occasion arises, to do advisory or
THE BAR GAZETTE
investigatory work for the Law Council and that in
appropriate circumstances honoraria may be paid for
work done.
The Council also adopted a recommendation in the
following form:—
“(a) Recognising that experience shows that a very
heavy burden is cast upon the Honorary Secretary
and the Honorary Assistant Secretary in handling
the work of the Council it is recommended that,
as a final attempt to ascertain whether the honorary
system is adequate for the purposes of the Council,
standing Sub-Committees of the Executive be es­
tablished consisting of members of the legal pro­
fession throughout Australia to work under the
guidance of individual executive members for the
purpose of collecting and collating material on
the Council’s behalf.
(b) That the following standing Sub-Committees be
established:—
1. International relations.
2. International conventions.
3. Federal government.
4. Law Reform No. 1.
5. Law Reform No. 2.
6. Publicity and Editorial.
and that members of each of these Sub-Commit­
tees and their Chairman be respectively located
in one capital city, so that there is one SubCommittee in each State.
(c) That, on completion of reports, the Sub-Commit­
tees are to return the file and report to the Secre­
tary and send a copy of the report to the Publicity
and Editorial Committee to be acted upon by
that Committee after adoption of the report by
the Executive when necessary.”
This proposal involves the setting up of Sub-Commit­
tees in each State capital city. It was realised that sub­
committees which are geographically scattered, find it
difficult to do expeditious work and the decision was
made that the work of the Council should be, to a sub­
stantial extent, subdivided between standing committees
the personnel of which would in each case be drawn
from the one capital city.
The following sub-committees, which have been
formed, give an indication of the wide range of activi­
ties of the Law Council.
(1) Sub-Committee on International Relations:
This sub-committee will handle for the Council
matters arising in its relations with overseas Bar Asso­
ciations and Law Societies, including the International
Bar Association. This includes the considerable amount
of work replying to requests for information from Aus­
tralia and the Australian States about legal matters.
The constituent bodies of the Law Council will in all
cases be consulted in the future as in the past, but it
will be the task of this sub-committee to co-ordinate and
collate material coming in from the constituent bodies
before despatch overseas. The object of the formation
of this and the other sub-committees is in part to re­
lieve the Honorary Secretary and Assistant Secretary of
this heavy burden of collation of information. An
9
efficient system of co-ordination is very necessary so
that overseas legal bodies may be given an impression
of reasonable efficiency in Australia on these matters.
There is a great deal of contact, both ways, nowadays
between the Australian Law Council and overseas
bodies and, if it is not to be handled by a permanent
secretariat, it must be efficiently handled at one central
point. Because the President of the Australian Law
Council is also a Vice President ex officio of the Inter­
national Bar Association and because it seemed best
for contact with overseas bodies to be handled in the
city where the President of the Australian Law Council
is located, this sub-committee will be established in
Tasmania and will work in close collaboration with the
President, Mr. Bruce Piggott, who practises in Hobart.
(2) Sub-Committee on International Conventions
This sub-committee will be established in Sydney be­
cause the main work on the 1965 British Commonwealth
Convention will be carried out in Sydney. There is,
however, a considerable amount of work involved in
handling Australian participation in conferences in other
countries. Papers have to be arranged, representation
of Australia organised and steps taken to see that those
who wish to attend are accredited. This Sydney sub­
committee will be responsible to see that everything is
done to ensure that the Australian voice is heard at
overseas conventions and that the secretariat is relieved
of the heavy work involved in this aspect of the Law
Council’s affairs. Of course, in the case of this as in all
other sub-committees correspondence will ultimately
go through the secretariat. The sub-committee is merely
to relieve the secretariat of some of the burdens of the
work.
(3) Sub-Committee on Relations with the Federal
Government
More and more of the Law Council’s work arises out
of the fact that the Departments of the Australian Gov­
ernment look to the Australian Law Council as the ap­
propriate body to speak for the Australian legal pro­
fession. This arises, not only in relation to law reform
(to be mentioned hereafter) but on many other matters.
This leads to regular discussions with the AttorneyGeneral’s Department and other departments such as
the Department of External Affairs, the Department of
Territories, the Prime Minister’s Department and so on.
It is not possible to summarise the wide range of
matters arising. It can safely be said that whenever any
aspect of governmental activity touches upon or affects
the legal profession or when it appears that the legal
profession as such may be able to assist the Law Council
of Australia will be asked to give assistance of one kind
or another.
(4) Sub-Committees on Law Reform
Three sub-committees on Law Reform have been set
up. One will operate in Queensland, one in South
Australia and one in Western Australia. Each will have
a Chairman. All Law Reform matters will go to the
co-ordinating Chairman in Adelaide who will allot
matters to the various sub-committees. In the case of
the Law Reform Sub-Committees, as with all other sub­
10
THE BAR GAZETTE
committees, the task will be one of collation of material
coming in from constituent bodies when their opinions
are asked for on questions of Law Reform. There is a
considerable amount of work carried out from year to
year in the field of Law Reform and it involves far
more time than honorary officers can give to it. It
will be the task of the sub-committees to ensure that
replies come in from the constituent bodies and are
collated for use.
(5) Sub-Committee on Publicity and Editorial Matters
This committee will be located in Melbourne where
the secretariat is to be established. Its task will be to
ensure that through the various professional journals and
in other ways detailed information is provided for the
legal profession about the activities and work of the
Law Council. The executive has decided that it is
essential for the rank and file members of the profession
to be provided with much more information about the
Law Council’s activities. This sub-committee will attend
to this task.
Over the next twelve months these various sub-com­
mittees will operate and an assessment will be made of
the whole experiment. It is intended to seek to have
eminent members of the profession participating in the
work of the sub-committees in the various capital cities.
Their membership will not be confined to members of
the Law Council itself. In this way it is hoped many
more lawyers throughout Australia will become actively
engaged in the Law Council’s work and this in itself
will help to spread throughout the profession greater
knowledge of that work.
If the honorary system, despite all of these proposals,
cannot be made to work with proper efficiency then the
profession will probably have to face up to the problem
of organising a permanent secretariat.
Accommodation—Shortage of Chambers
Despite the building of a new set of Chambers equal
in size to the original Wentworth Chambers there is
still a very great shortage of space for existing members
of the Bar and for a number, not yet in practice, who
wish to begin. This situation is a cause of concern
to the Bar Council and to Counsel’s Chambers Ltd.
In the new building there will be eight floors devoted to
barristers’ chambers and this is the maximum amount of
space which could be provided for the Bar, having
regard to the economics of the building and other fac­
tors which had to be taken into account. There are
about seventy-five persons, in practice or wishing to
begin, who cannot be accommodated in the new
building. Assuming a net gain in membership of and
aspirants to active practice at the Bar of only (say)
five per year the position will be considerably worse
in five years’ time if nothing is done.
The Council has accordingly asked its Accommodation
Committee to investigate the situation. On Monday,
19th November, 1962, the Committee called a meeting of
all of those concerned in order to ascertain what real
demand existed for Chambers, how many of those at­
tending were prepared to subscribe capital and in what
quantities and on what terms, what rents those attending
would be prepared to contemplate and so on. Land
values have risen significantly in this part of the city and
it does not seem to be likely that in the future it will
be possible to organise accommodation for barristers’
chambers as cheaply as has been done up to date.
Before any further co-operative planning can be under­
taken it is therefore necessary to ascertain just how many
persons are willing and able to engage in any practical
scheme which may be evolved.
The meeting of those interested was invited to form
a committee from amongst their own members to meet
the Council’s Accommodation Committee and to
nominate two persons to join the Committee whilst it
is dealing with matters relating to the provision of
further space for the Bar. This was regarded as essential
because active initiative participation and planning by
persons actually needing chambers is a necessary condi­
tion for effective action. Both the Council and Counsel’s
Chambers Ltd. are anxious to help but cannot, in a
paternalistic way, solve all problems connected with
the shortage of Chambers in the absence of active work
by those needing chambers. A committee of those in­
terested has been formed and is considering the problem.
The building of Wentworth Chambers and the new
extensions to it has radically changed the position at
the Bar. Most practitioners and aspiring practitioners
want to be “at the centre of things” that is to say in
Wentworth Chambers, but it is simply impossible to ac­
commodate in those Chambers all who want to practice.
The Bar as a whole has an interest in seeking a further
communal solution to the chambers question, first be­
cause the health of the Bar as a profession is dependent
upon reasonably free recruitment to it and the pre­
vention of an artificial monopoly from emerging and
secondly because it is desirable that all members of the
Bar should practise in one area of the city and not be
scattered by economic circumstances into various parts
of the city. The institutions of the Bar will therefore
be most anxious to help find a solution bearing these
matters in mind. However it would be most unfortunate
if the view spread that self-help is now unnecessary or
impossible and it is for this reason that the Council has
assembled those who are directly affected by the lack
of space in order to see whether they are willing
themselves to accept a real share of the responsibility
for the working out of a co-operative and practicable
solution.
It would be most undesirable if the impression grew
that it is the sole task of the profession and of its
governing bodies to solve these questions and that as­
pirants to the Bar are entitled to have things made easy
for them without effort or risk on their part.
Further it must be appreciated that the valuable com­
munal investment which the profession (or rather the
bulk of the profession) now has in Wentworth Chambers
cannot be imperilled by further ventures which are not