The Honourable Justice Dean Mildren* As the title suggests, this article traces the history of the bar in the Northern Territory from 1873 to the present time. Until 1974, there was no independent bar; the reasons for its establishment and growth since then are examined. The establishment of the Northern Territory Bar Association in 1980 and its work since then is described. Other issues dealt with are legislative recognition of independent barristers; the appointment of Queen’s Counsel; Bar rules; the organisation and structure of the bar; female barristers; barristers employed by the Crown and the Office of the DPP; and challenges facing the bar arising from the implementation of the National Competition Policy.
The legal profession in the Northern Territory has always been a fused profession. The reasons for this are partly historical, and partly a matter of necessity. When the Northern Territory was annexed to South Australia by letters patent issued by Queen Victoria on the 6th of July 1863, the practical, if not the immediate legal effect, was the establishment of a legal system for the Northern Territory heavily influenced by South Australian law which had never had a split profession. In any event, the population of the Northern Territory would not have supported an independent bar. It was not until 1974 that the first attempt was made to establish an independent bar, in the sense of practitioners specialising as barristers independent from any solicitor or firm of solicitors. Consequently, for over 100 years, those practitioners who appeared in the courts as barristers also practised as solicitors.
The first lawyer to arrive in the Northern Territory was William James Villeneuve Smith (1824-1902). Smith, who had been called to the bar in England and had been admitted to the bar in South Australia in 1871 arrived in Palmerston in 1872 or 18731. A colourful and impetuous character who delighted in upsetting the establishment, Smith had a busy practice mainly in the Mining Warden’s Court and Local Court before he returned to Adelaide in 1875. His main opponent, Dr Kaufman, was by contrast a quiet and harmless personality who took little part in public affairs2. Apart from Charles Edward Herbert, who practised briefly in the Territory in the period around 1880-1882 and again as a partner in the firm of H.E. Downer and Herbert from 1896, none of the other early South Australian practitioners made any significant mark on public life in the Northern Territory. From 1900 Herbert served as an M.L.A. in the South Australian Parliament where he sought, unsuccessfully, to alter government policy which required the Judge of the Northern Territory to sit in the lower courts as well as to exercise the jurisdiction of the Supreme Court in criminal trials. He also sought to have the office of Judge separated from that of Government Resident, as it had been between 1884-1892. After Justice Dashwood’s retirement in 1905, he succeeded him as Government Resident and Judge of the Northern Territory (1905-1910). Subsequently Herbert served as Deputy Chief Judicial Officer for the Territory of Papua (1910-1926), but the title of Judge eluded him until 1926. Shortly thereafter he retired to his property at Koolpinyah, south of Darwin. In 1927 he was appointed Administrator of Norfolk Island, where he died in 1929.3
The Bar 1911-1970
On the 1st of January 1911 the Northern Territory became a Territory of the Commonwealth. On 30 May 1911, the Commonwealth established the Supreme Court of the Northern Territory. This came about partly as a result of agitation in the local press, which forcefully pointed out the difficulties caused by the absence of a local registry and a permanent resident Judge4. The new Court had power to admit legal practitioners as well as to suspend or remove them from practice. At that time, Darwin, as Palmerston was now called, had two practitioners, John James Symes and Ross Ibbotson Dalton Mallam5 who had arrived in 1910. In 1912, Donald Arthur Roberts took up a position in the employ of Symes and ultimately took over his practice after Symes’ death in 19156. As there was no Crown Prosecutor’s Office in the Northern Territory either Roberts or Mallam was briefed to prosecute all criminal trials, the other being briefed to appear for the accused. Both Roberts and Mallam were very successful as barristers and contributed much to early Territory life. Both were to become Judges of the Supreme Court, the former from 1921-1928 and the latter from 1928-1933. Despite differing personalities and political opinions they got on well together and from time to time combined their efforts to bring to public attention incompetence in the bureaucracy, which neither of them would tolerate. Both shared a mutual enmity for Gerald Hogan a Special Magistrate and the Registrar of the Supreme Court who was appointed to the office of Deputy Judge after the expulsion of Judge Bevan (together with the Director of the Northern Territory and the Government Secretary) as a result of the infamous Darwin Rebellion in 1919.7 After Judge Bevan had been removed from office in October 19208, Mallam submitted to Deputy Judge Hogan in the case of an appeal from the Magistrate’s Court, (Presley v Geraghty) that he was invalidly appointed. Hogan rejected Mallam’s submission and in subsequent proceedings involving a probate matter he suspended Mallam from practice for 12 months for filing an affidavit which he found was made with the intention of misleading the court and calculated to interfere with the course of justice9. Mallam appealed that decision as well as the decision in Presley v Geraghty to the High Court, which ultimately held, in 1921, that Hogan was indeed invalidly appointed and that all orders that he had made after October 15th 1920 were nullities10. This necessitated retrospective amendments to the Supreme Court Ordinance validating Hogan DJ’s decisions, except of course, the decision in Presley v Geraghty and his decision to suspend Mallam from practice.
However, Hogan made one worthwhile contribution. In 1922 he persuaded the Minister for Home and Territories to appoint a Crown Law Officer for the Northern Territory. The first appointee was Algenon Charles Braham who arrived in Darwin in mid February of 1923 to take up his appointment. Regrettably Braham was not a happy choice. He immediately became embroiled in a lengthy dispute with Judge Roberts over ownership of the Supreme Court library books and over the fact that the Government Secretary, Charles Barnett Story, had given Braham permission to establish his office in the Jury Room. Roberts had a poor opinion of Braham whom he described as a drunk, an incompetent and a nuisance, and objectionable to women when under the influence. In June 1928 Braham was succeed by Eric Thomas Asche11, the father of Austin Asche, who was later to become the Supreme Court’s third Chief Justice in 1987.
During most of the 1920s the private profession remained at three: Mallam, Braham and Norman Wilson Barratt who had arrived in Darwin in September 1923 and was probably employed by Mallam. On 19 July 1926, Frank Ernest Bateman, who had been admitted in Victoria as a barrister in 1894 and admitted in Western Australia in 1905, was given provisional admission. He was struck off the roll by Roberts J on October 4th 1926, only 67 days after his admission in relation to a false affidavit of service of some notices in certain bankruptcy proceedings relating to the calling of a meeting of the creditors of the late Dr John Norris. The matter had been brought to the Judge’s attention by a number of statutory declarations posted to the Judge anonymously by Mallam and Barratt, who had prepared them. The false affidavit had been made only 4 days after his admission. As there was no Law Society and no one moved to have Bateman struck off, the Judge himself drafted the necessary papers for Bateman to be summonsed before him and caused them to be served. Roberts J found that the affidavit was false and that he did not believe Bateman as a witness. He remarked:
“I prefer to think that this is due to mental infliction and perhaps hallucination rather than to sheer dishonesty or wickedness. The effect of such conduct though, from whatever cause, would be most dangerous to the public and to anyone against whom he might become embittered12.”
Roberts J later discovered that Bateman had in fact spent quite some time as an inpatient in a mental institution in Western Australia.
During the 1930s the number of local barristers began to grow. In 1933 there were at least five - E.T. Asche, W.J.P. Fitzgerald, J.S. Harris, H.J. Foster and G.W. Michell. Fitzgerald was the counsel who represented Tuckier in his two trials for murder in August 1934. Tuckier was acquitted of a charge of killing an unknown man at Woodah Island but was convicted of the murder of Constable Albert McColl in a separate trial held only days later. The prosecutor was J.S. Harris who was then acting as the Crown Law Officer13. Fitzgerald’s competence as Tuckier’s counsel was severely criticised by the High Court: see Tuckier v The King (1934) 52 CLR 335 at 346-347.
By 1938 A.B. (Brough) Newell and John W (Tiger) Lyons had both arrived in Darwin. Lyons was ultimately to become the Mayor of Darwin and a member of the Legislative Council and was well known as a fearless counsel, although it was said of him that he would sometimes represent litigants with no more than a few notes of instructions written on the back of a cigarette packet14.
After the bombing of Darwin in February 1942 the civil population was evacuated and the whole of the Northern Territory was placed under military control pursuant to the provisions of the National Security (Emergency Control) Regulations. The regulations remained in force over most of the Northern Territory until the 20th of November 1945 and were not removed entirely until the 28th of February 1946. During this period the Supreme Court of the Northern Territory still continued to function but there were virtually no private practitioners left in the Northern Territory apart from those who were serving in the armed forces, and Dick Ward who resided for a period in Alice Springs. Judge Wells made arrangements with the military authorities to allow lawyers serving in the armed forces to represent defendants in criminal proceedings15. The offices of Crown Prosecutor and Deputy Crown Prosecutor still remained and it appears likely that the Commonwealth retained officers in those positions in Alice Springs during the war years.
Immediately after the war Dick Ward went into partnership with Neil Hargrave to form the firm of Ward and Hargrave in Alice Springs and Brough Newell returned to Darwin. Subsequently, Ward joined Newell in Darwin to form the firm of Newell and Ward which ultimately became the firm of Ward Keller and Rorrison now known as Ward Keller. Tiger Lyons also returned to Darwin.
As by this time regular passenger flights to Darwin were available from Adelaide, it was not uncommon to find Senior Counsel from interstate appearing in major matters as early as 1951. During the 1950s and 1960s the number of legal practitioners in private practice in both Darwin and Alice Springs began to grow but still the firms remained small practices of usually one, two or three practitioners with one of those practitioners performing all of the counsel work. Among the more prominent members of the bar at this time were Dick Ward, John Lyons, Phil Rice, Ian Barker, Cameron Stuart, Ron Withnall and Jim Williams.
The establishment of an independent bar
Gradually as the firms began to grow in Darwin, the practice evolved of one of the partners of the firm working solely as in-house counsel within his firm. By the early 1970s there were nine practitioners who worked either solely as barristers or primarily as barristers in this fashion: Graham MacNish, Dick Ward, Ian Barker, John McCormack, Michael Maurice, John Waters, Tom Pauling, Brian Martin and myself. At that stage there was still no Legal Practitioners Act for the Northern Territory. The Law Society of the Northern Territory which had been formed in 1969 had no statutory powers16. The only measure of control over the legal profession by statute was an ordinance which dealt with the requirement to have trust accounts audited. There was no such thing as a practising certificate. It was necessary to be admitted to the Supreme Court as a barrister and solicitor and the Court did recognise the Law Society as a moving body for the purpose of any disciplinary proceedings, but essentially the legal profession was very much in the control of the Judge.
In 1974 the Legislative Council passed the Legal Practitioners Ordinance 1974 which was introduced into the House as a Private Member’s Bill by Dick Ward on behalf of the Law Society17. At that stage no separate recognition was given to barristers although s20 of the Ordinance did provide for the appointment of Queen’s Counsel and s21 provided for rights of precedence between counsel. During the 1970s and early 1980s Presidents of the Law Society tended to be leading in-house counsel, rather than solicitors.
In 1974, Michael Maurice, who had previously been an in-house counsel with Ward Keller and Rorrison from September 1972 to the end of 1973, returned to Darwin from the Sydney bar and, with effect from the 1st of July 1974, set himself up as an independent barrister. From the 1st of September 1974 he was joined by Tom Pauling. Barristers’ Chambers, as the new independents called themselves, was established on the 3rd floor of Mallam Chambers in Mitchell Street, the same building as was then occupied by Ward Keller and Rorrison.
In the same year Dick Ward and Ian Barker were both appointed Queen’s Counsel. Dick remained with Ward Keller for a few months before being elevated to the bench but Ian was required to give an undertaking to Forster J. to practice at the independent bar. Consequently he left the firm of Withnall and Barker, of which he had been a partner since 1971, upon the basis that, in lieu of his share of the partnership, the firm would provide him with an office and typing facilities for a period of 5 years at the firm’s offices at the 1st floor at the Cercerilli Building in Cavanagh Street. Barker Q.C. joined the independent bar as from the 1st of August 1974.
The organisation of the independent bar at this stage was very loose. There were still no provisions in the Legal Practitioners Ordinance which gave them any recognition and of course there was no such thing as a Bar Council or Bar Association.
Undeterred by tradition or bar rules, the fledgling independent bar made its own arrangements with the other members of the legal profession. Significantly, there was no requirement for senior counsel to appear only with a junior counsel, there was no such thing as a two-thirds rule, and there was no clerking system - barristers made their own engagements directly with the solicitors who wished to employ them. But they did do only bar work, accepted instructions only from an instructing solicitor, and honoured the cab-rank rule.
On the 25th of December 1974, Cyclone Tracy destroyed Darwin and with it the top floor of the Cercerilli Building which forced Barker to join Maurice and Pauling. In the years after the Cyclone the independent bar grew both in numbers and in importance. The success of this growth can be attributed to a number of factors. First, the independent bar was strongly supported by Paul Everingham18, who at that stage was still in practice and had a fair amount of litigation work to brief out. Secondly the members of the bar were supported by the firms for whom they had each previously worked. Thirdly it soon became apparent to the rest of the profession that members of the independent bar were able to provide a cheaper and better quality of service to their clients. Fortunately those who had started the independent bar were people of considerable legal skill and forensic ability and what became apparent very quickly was that it was difficult for part time barristers to compete adequately with them. It was rather like a good amateur trying to take on a professional. The bar was also supported by a number of a younger barristers who joined up in the period between 1975-1980 and who also demonstrated considerable skill19.
From the beginning the new independent bar put a lot of resources into its library. As Michael Maurice Q.C. was later to explain20, the presence of a good working library as well as a good environment to use the library was a significant factor in its success. Apart from providing a necessary resource which was otherwise available only at the Supreme Court Library, the library became the bedrock around which people clustered; it was a place where ideas could be exchanged about the law or about advocacy in general. It represented to the solicitors a resource larger than any individual; solicitors knew that by briefing a member of the bar they were briefing someone who had the ability to tap into a large legal resource as well as to tap into the ideas of others.
The bar may have been young - apart from Barker, none had turned forty - but it was a very professional outfit. As Michael Maurice puts it:
“We projected ourselves as confident and brash - people who wanted to be advocates.”21 But most of all the Bar was successful because there was a demand for its services and the firms found it convenient and cost effective to brief out to them.
By 1980 there were nine practitioners practising at the independent bar22 and the system of employing in-house counsel in the firms had all but died out.
At this stage, because the Legal Practitioners Act23 did not differentiate between the two branches of the profession, barristers were required to have an unrestricted practising certificate in order to practice on their own account. This was not customary in the eastern States. Further, they were also required to keep a trust account and have it audited, (or obtain an exemption from the Law Society) notwithstanding the fact that they did not receive any trust monies. They were also required to comply with the provisions of the Act requiring all practitioners to take out professional indemnity insurance and to contribute towards the Fidelity Fund. Many barristers thought these provisions had little to do with the practice of being a barrister.
It was clear that the bar needed its own professional association but the main reason for establishing the Northern Territory Bar Association was to enable the barristers to affiliate with the Australian Bar Association. Notwithstanding that all members of the bar were members of the Law Society and recognised the Law Society’s right to control ethical rulings and matters of professional conduct and discipline, there was a feeling of isolation from other Australian barristers by the lack of any formal organisation which could be recognised and affiliated with the other bar associations throughout Australia. If the bar was to be a successful entity, now that it was starting to grow it was thought necessary to put in place rules of professional conduct which would be binding upon barristers only, dealing with such matters as the cab-rank rule, and the circumstances under which it would be appropriate for a member of the bar to attend on a solicitor’s office etc. So far as rules of ethical conduct were concerned, the practice had long been to use the rules of New South Wales Bar for guidance, although, as previously mentioned, a number of those rules clearly did not apply. By this time Barrister’s Chambers had moved to Paul Everingham and Co’s former premises at 99 Mitchell Street. Those premises soon became overcrowded and it was apparent that either the bar would have to move if all members were to remain at the same location or other chambers would be formed by necessity. The sooner someone established a separate chambers the sooner these type of problems were going to become critical.