Supreme Court New South Wales

• Medium Neutral Citation: In the matter of The New South Wales Bar Association [2014] NSWSC 1695
• Hearing dates: Friday, 26 September 2014
• Decision date: 01 December 2014
• Jurisdiction: Equity Division - Corporations List
• Before: Brereton J

Decision

Proceedings dismissed, with costs

• Catchwords: PROFESSIONS AND TRADES - lawyers - other matters - barristers - senior counsel - application for appointment; ASSOCIATIONS AND CLUBS - jurisdiction of the courts - interference in internal management - bases for intervention - contract - restraint of trade - oppression; CORPORATIONS - membership, rights and remedies - members' remedies and internal disputes - oppression - whether deadline of general application oppressive to member who fails to meet it - whether decision not to extend time oppressive; TRADE AND COMMERCE - other regulation of trade or commerce - restraints of trade - whether protocol of association for selection and appointment of senior counsel a restraint of trade - whether deadline for applications a restraint of trade
• Legislation Cited: (CTH) Corporations Act 2001, s 232, s 233, s 1322(4)(d); (NSW) Legal Profession Act 2004, s 81(2); (NSW) Restraints of Trade Act 1976, s 4(1)
• Cases Cited: Australian Capital Territory v Munday (2000) 99 FCR 72; Andrews v ANZ Banking Group Limited (2012) 247 CLR 205; Buckley v Tutty (1971) 125 CLR 353; Cain v Air Cargo Inc 599 F 2d 316 (9th Cir 1979); Cameron v Hogan (1934) 51 CLR 358; Conservatorship of Wendland 78 Cal App 4th 517 (2000); Criminal Courts Bar Assn v State Bar 22 Cal App 3d 681 (1972); D'Souza v Royal Australian and New Zealand College of Psychiatrists [2005] VSC 161; 12 VR 42; Dougherty v Haag 165 Cal App 4th 315 (2008); Esso Petroleum Co Ltd v Harper's Garage (Stourport) Ltd [1968] AC 269; Ezekial v Winkley 572 P 2d 32 (1977); Golden Day Schools Inc v State Dept of Education 83 Cal App 4th 695 (2000); Hawick v Flegg (1958) 75 WN(NSW) 255; Heath v Redbud Hospital Dist 620 F 2d 207 (9th Cir 1980); Howard F Hudson Pty Ltd v Ronayne (1972) 126 CLR 449; Hughes v Western Australia Cricket Association (Inc) (1986) 19 FCR 10; Re Affinity Health Ltd [2006] NSWSC 579; (2006) 58 ACSR 461; Re Ingleburn Horse and Pony Club Ltd and the Companies Act [1973] 1 NSWLR 641; John J Starr (RE) Pty Ltd v Robert R Andrew (Australiasia) Pty Ltd (1991) 6 ACSR 63; Kim v Southern Sierra Council Boy Scouts of America 117 Cal App 4th 743 (2004); King v Regents of University of California 138 Cal App 3d 812 (1982); Levitch v Australian Dental Association (NSW Branch) (Supreme Court (NSW), Cohen J, 21 December 1984, unrep); Marin County Board of Realtors, Inc v Palsson 549 P 2d 833 (1976); Mitchel v Reynolds (1711) 1 P Wms 181; [1558-1774] All ER Rep 26; Nordenfelt v Maxim Nordenfelt Guns and Ammunition Company [1894] AC 535; Palm Medical Group Inc v State Comp. Insurance Fund 161 Cal App 4th 206 (2008); Parker v American Numismatic Ass'n 2007 Wash App LEXIS 927 (2007); Pharmaceutical Society of Great Britain v Dickson [1970] AC 403; Pinsker v Pacific Coast Society of Orthodontists 460 P 2d 495 (1969); Pinsker v Pacific Coast Society of Orthodontists 526 P 2d 253 (1974); Peters (WA) Ltd v Petersville Ltd (2001) 205 CLR 126; Petrofina (Great Britain) Ltd v Martin [1966] Ch 146; Potvin v Metropolitan Life Insurance 997 P 2d 1153 (2000); Rose v Boxing NSW Inc [2007] NSWSC 20; Wambo Coal Pty Ltd v Sumiseki Materials Co Ltd [2014] NSWCA 326; Yari v Producers Guild of America, Inc 161 Cal App 4th 172 (2008)
• Texts Cited: JD Heydon, The Restraint of Trade Doctrine, (2nd ed 1999, Butterworths)
• Category: Principal judgment
• Parties: David Andrew Smallbone (plaintiff); The New South Wales Bar Association (first defendant); Jane Needham (second defendant)
• Representation: Counsel: M B Oakes SC (plaintiff); I M Jackman SC w D A C Potts (defendants); Solicitors: Hardings Lawyers (plaintiff); Hicksons (defendants)
• File Number(s): 2014/272756

Judgment

1 The plaintiff Mr Smallbone, a barrister, caused an application for appointment as senior counsel to be lodged at the office of the first defendant The New South Wales Bar Association on Friday, 25 July 2014 at 5.12pm. The second defendant Ms Needham SC, the President of the Bar Association, rejected the application as late, on the basis that time for applications closed at 5.00pm. Subsequently, the President refused the plaintiff's request for an extension of time for lodgement of the application. By originating process filed on 16 September 2014, the plaintiff challenges the validity of the 5.00pm deadline, the President's decision not to extend time, and the Bar Council's refusal to reconsider the President's decision. He seeks orders extending time for his application to be made, directing the President to consider it on its merits, or requiring her to reconsider his application for an extension of time.

Background

2 The plaintiff is a practising barrister and a member of the Bar Association. He is a "Local Practising Barrister" and a "member of the Outer Bar" within the meaning of the constitution of the Association.

3 On 15 May 2014, the Bar Council "noted" four documents placed before it in connection with applications for appointment as senior counsel in 2014.

4 One was a circular addressed "to all members of the Outer Bar" and entitled "Appointment of Senior Counsel - 2014", by which the President invited applications for appointment as senior Counsel for 2014 ("the Invitation"). The Invitation stated:

The principles governing selection and appointment of Senior Counsel are set out in the Senior Counsel Protocol, a copy of which is available on the Bar Association's website ...

5 The Invitation identified the members of the selection committee, and shortly outlined the process. It included the following (emphasis in original):

Applications should be made as follows:

1. On or after 1 July 2014, but before 5pm on 25 July 2014, applicants should inform me, in writing, of their intention to seek appointment

...

Applications should be sent to the New South Wales Bar Association, Selborne Chambers, B/174 Phillip Street, Sydney NSW 2000 or DX 1204 Sydney.

Any application received by the Bar Association after 5.00pm on 25 July 2014 will not be considered.

6 Notice of the Invitation was published in "In Brief" on the Bar Association website ("the Notice"); the evidence does not establish precisely when it was published, but the plaintiff downloaded and printed it on 14 July. The Notice was relevantly in the following terms (emphasis in original):

Applications for appointment as senior counsel

President Jane Needham SC invites applications for appointment as senior counsel for 2014. The deadline for applications is 5.00pm on 25 July 2014. The principles governing selection and appointment of senior counsel are set out in the Senior Counsel Protocol; and the Guide to Practical Aspects of Appointment of Silk in New South Wales. ...

7 Amongst the documents noted by the Bar Council was the Senior Counsel Protocol, in the form which had been adopted by the Bar Council on 16 May 2013 ("the Protocol"). It was expressed to set out the principles governing the selection and appointment of those to be designated as Senior Counsel by the President of the Bar Association. Under the heading "Submission of Applications", it provided (emphasis added):

11. On or after 1 July ion each year, applications may be made in writing in a form approved by the Bar Council to the President by junior counsel with full unrestricted practising certificates who wish to be considered for appointment as Senior Counsel.

...

17. Any application not conforming with the requirements in clauses 11 and 12 of this Protocol will be rejected. No application will be considered which is received later than the last Friday in July, except in cases of accident or other special circumstances, and then at the discretion of the President.

8 Also noted by the Bar Council was the "Guide to Practical Aspects", which was expressed to be "a short guide to some of the practical aspects of the operation of the Senior Counsel Protocol ...", and to offer "an explanation of how aspects of the Protocol operate in practice" ("the Guide"). It stated:

1. The Protocol is approved by the Bar Council and is the instrument by which Senior Counsel are selected by the Senior Counsel Selection Committee each year. This guide does not amend or reinterpret the Protocol.

Timing for the appointment of Senior Counsel

2. Pursuant to the Protocol, on 1 July each year the Bar Association calls for applications for appointment as Senior Counsel. The closing date for applications this year is Friday, 25 July 2014.

...

9 The Bar Council also noted the "Cover Sheet for Senior Counsel Application - 2014" ("the Cover sheet"). This form, which was required to be included in an application, opened with the following (emphasis in original):

Please complete all pages of this form and attach your application. Your application must be received at The New South Wales Bar Association by 5.00pm on Friday, 25 July 2014.

10 The plaintiff's application was received, by hand delivery, at the office of the Bar Association at 5.12pm on 25 July. At 5.32, the Bar Association's Executive Director, Mr Selth, sent an email to the President:

Houston, we have a problem ...

We received at 5.12 a Silk application from Smallbone.

Late.

...

We have knocked people back before for being late. We went out of our way to encourage applicants to lodge before 5 pm.

I do not believe we shld make an exception for Smallbone cos he will whinge ...

Unless directed otherwise, I will formally tell Smallbone on Monday that his application was not received by the due time.

11 The President responded at 5.35pm:

I agree. Late is late. The only late applications I've known about being approved are those with prior extensions granted due to extraordinary circumstances.

12 After some further exchanges - which included reference to another instance in which a late application had been rejected in the past, the President observed (at 5.55pm):

Rules are rules, whether it's someone I like [named] or someone who has sued us (Smallbone).

13 On 28 July, with the approval of the President, the Executive Director wrote to the plaintiff:

Your application was received by the Bar Association after the cut-off time of 5:00pm on Friday, 25 July 2014.

Your application was not accompanied by any explanation of why it was lodged late and that due to 'special circumstances' it should nonetheless be considered (clause 17 of the Senior Counsel Protocol).

I am instructed to advise you that your application will not be considered.

I am returning with this letter your application. The Bar Association has not made nor kept a copy.

14 The plaintiff responded, by letter addressed to the President and Councillors, the same day:

The reason why it was lodged late was that I was unexpectedly required in Court on Friday for longer than anticipated. I did not get free until about 3 pm and was perforce required to settle the details of my application in a great rush. This led to the application being hand delivered 12 minutes late.

I must say that I was surprised to receive Mr Selth's letter, given that only 12 minutes were involved and that this is my ninth application and the history of frustration that lies between us.

I request that you accept my application under the provisions of clause 17. I hereby re-submit my application with the above emplanation [sic].

15 On 29 July, the plaintiff wrote again, seeking particulars of the "instructions" referred to in the Executive Director's letter of 28 July, and when he might expect a decision on his application for an extension. The Executive Director drafted a reply which, after approval by the President, he sent on 29 July:

The President has considered your letter of 28 July 2014. However, as there are no 'special circumstances' attached to your application, your application will not be considered.

I note that another late application will also not be considered. The deadline was widely advertised to the Bar. The fact that this is apparently your ninth application and that you say there is a 'history of frustration' does not justify you receiving more favourable consideration than other applicants.

16 The plaintiff responded, on the same day:

Please advise how many applications were accepted for consideration notwithstanding failure to comply strictly with the 5 pm deadline.

I do not agree with the observations in your letter today.

Your letter also fails to deal with the category of accident.

It also fails to deal with the overriding obligation of the Association to act reasonably and fairly in the institution and application of rules which operate in restraint of trade, or which are capable of operating unfairly or oppressively and which, further, are supposed to operate in the public interest and as part of the administration of justice.

...

I hereby re-submit my application. As the governing body of the Association, the Bar Council is ultimately responsible for these matters and cannot avoid such responsibility by delegation. It also ultimately controls the appointment and duration of office of its office bearers.

I therefore insist that my application be referred to the Bar Council for its urgent consideration and that you advise me forthwith of the arrangements that will be made for consideration of this issue by the Bar Council.

You will soon be hearing from my solicitor.

17 The Executive Director replied, on 30 July:

The President, having considered [your two letters of 29 July] has asked that I reply, as is the usual practice.

As I advised yesterday, clause 17 of the Senior Counsel protocol refers specifically to the President having the discretion as to whether late applications should be considered. This is not a matter for the Bar Council.

Your late application was treated in the identical way as the other that was lodged late.

18 On 4 August, the plaintiff wrote to the President, setting out his case in more elaborate detail, and elaborating his case of 'accident' - being the 'unexpected call on my time on the 25th'. The Executive Director replied, on behalf of the President, on 5 August. The letter attached copies of the Cover sheet, the Invitation, the Guide, and the Protocol, and continued:

These documents were all before Bar Council on 15 May 2014. The wording of each of those documents was approved by Bar Council. Both the Cover Sheet - which you signed - and the Invitation to Members clearly stated that the application must be received at the Association by 5.00pm. Your application was not so received, and it (and another application which was also received late) were accordingly rejected.

19 The reply did not address the plaintiff's detailed arguments, but said:

Each of the factors raised by you has been dealt with in our previous correspondence and nothing will be gained by repetition.

20 On 7 August, the plaintiff wrote to each member of Bar Council individually, and sent 21 copies to the Association for distribution. They were not distributed in advance to Councillors, but were made available to be read before the next meeting, on 14 August. On 18 August, the Executive Director wrote to the plaintiff:

The President raised the matter of her refusal of the two applications which arrived after 5.00pm at the Bar Council meeting of 14 August 2014 by way of report to the Council. The correspondence in relation to your application was available for Bar Councillors to view prior to the meeting. As the decision to exercise a discretion to accept a late appointment is a matter for the President, that decision stands. The decision was, however, endorsed by Bar Council.

21 There was some further correspondence, and the above extracts are incomplete, but for present purposes they sufficiently describe the background.

Issues

22 The plaintiff challenges the existence and legality of the "5.00pm rule", the legality of the President's discretionary decision not to consider his application under clause 17 notwithstanding that it was late, and the Bar Council's failure or refusal to review the President's decision.

23 In substance, the plaintiff contended:

(1) That the 5.00pm rule did not exist, because it had not been duly authorised by the Bar Council, or, if it had been made, the time was not essential;

(2) That if it had purportedly been made, it was void or of no effect by reason that it was not made for any proper constitutional object of the Bar Association, and/or it was contrary to (NSW) Legal Profession Act 2004, s 81(2), and/or it was an unreasonable restraint of trade, and/or it was oppressive or unfairly discriminatory within the meaning of (CTH) Corporations Act 2001, s 232;

(3) That the President's decision was an unreasonable restraint of trade and/or oppressive;

(4) That the Bar Council's failure to reconsider and review the President's decision was an unreasonable restraint of trade and/or oppressive; and

(5) That the 5.00pm rule fixed a period for doing an act or taking a proceeding in relation to a corporation, and the Court should extend time pursuant to Corporations Act, s 1322(4)(d).

Justiciability

24 Courts do not as a matter of course intervene in the affairs of voluntary associations, unincorporated or incorporated. For many years, in order that a court be persuaded to intervene, a plaintiff had to establish some interference with its property rights or interests, or some breach of contract [Cameron v Hogan (1934) 51 CLR 358, 378; Hawick v Flegg (1958) 75 WN(NSW) 255, 258-9]. Incorporation, as well as facilitating proof of a contract to found jurisdiction on that basis also provided, through the "oppression" ground, an additional basis for intervention [Re Ingleburn Horse and Pony Club Ltd and the Companies Act [1973] 1 NSWLR 641], and if the rules or a ruling of a private association has the effect of unreasonably restricting a person's liberty to earn income it may be declared void as an unreasonable restraint of trade, even if the rules are not contractual [Buckley v Tutty (1971) 125 CLR 353]. Moreover, the Court's ample power to grant declaratory relief enables it to take cognisance of some domestic disputes which would otherwise not be justiciable [Rose v Boxing NSW Inc [2007] NSWSC 20, [55]-[60]].

25 Different elements of the plaintiff's case rely on different bases of justiciability, and in determining whether the plaintiff has a cognisable case it is necessary to bear in mind both the purpose and juridical nature of the documents that pertain to the arrangements for the appointment of Senior Counsel, and the nature of the plaintiff's complaints.

26 Appointment as Senior Counsel is a professional recognition of eminent members of the Bar who are able to provide exceptional service as advocates and advisers in the administration of justice. Since the executive government ceased to appoint Queens' Counsel in 1992, the appointment has been made by the President of the Bar, after a consultative process, under arrangements established by the Bar Council and contained in the Protocol, which has been reviewed and amended from time to time, most recently in May 2013.

27 It is common ground that the Protocol is not a contractual document. Nor is it legislative in character - it does not form part of the Barristers' Rules. It is not part of the constitution of the Bar Association. It is properly characterised as a statement of the policy that the Bar Association intends to apply. While it is conceivable that that may have some legal consequences (for example, for misleading and deceptive conduct under the Australian Consumer Law, of which there is no suggestion here), it does not of itself create legal rights and duties. As a manifestation of a domestic rather than a public function of the Bar Association [cf its rule-making and disciplinary functions], decisions made for its purposes are not amenable to judicial review [cf D'Souza v Royal Australian and New Zealand College of Psychiatrists [2005] VSC 161; 12 VR 42 (Ashley J), [99]-[118]]. That is not to say that there are not grounds upon which the relevant "rules" or decisions under them might be impugned, but that it is not sufficient for the plaintiff to establish some discretionary error of the kind that might attract relief in the public law.

28 The juridical bases relevant to the plaintiff's claim are:

(1) Contract, at least insofar as the plaintiff impugns the 5.00pm rule on the basis that it was not made for a valid object of the Bar Association;

(2) Restraint of trade;

(3) Oppression (Corporations Act, ss 232 and 233); and

(4) Statutory power to extend time (Corporations Act, s 1322(4)(d)).

The 5.00pm rule

29 The Protocol (clause 17) and the Guide do not refer to a 5.00pm deadline, but only to "the last Friday in July" or "Friday, 25 July 2014". The Invitation and the Cover sheet refer to the 5.00pm deadline, as does the Notice.

Existence and essentiality of the rule

30 The plaintiff submits that there was no 5.00pm deadline, and alternatively that if there was, it was not essential.

31 The submission that there was no 5.00pm deadline had two limbs. The first was that the governing document was the Protocol (which had been adopted by Bar Council), which contained no 5.00pm deadline, and the Bar Council never resolved in terms to adopt such a deadline. The alternative submission was that the Bar Council did not turn its attention to the question, which was said to be demonstrated by inconsistency between the Protocol and the Guide on the one hand, and the Invitation and Cover sheet on the other.

32 The juridical basis for this aspect of the plaintiff's case is not apparent. Any member of the outer bar can apply for silk, regardless of membership of the Bar Association. The Protocol does not create a legally enforceable right to have an application for silk considered, even if timely. Accordingly, even if the Bar Council never authorised the deadline, the fact that applications received after that time were rejected would give rise to no legal remedy. It is not relevant to ask whether the deadline existed or not in law, because the Protocol is not a legal construct.

33 But, although there was no legal necessity for a resolution of the Bar Council to approve the 5.00pm deadline, the suite of four documents concurrently "noted" by the Bar Council on 15 May 2014 were plainly placed before it in anticipation of their imminent publication in June 2014 in connection with the 2014 round of appointments of silk. The documents so noted included the Cover Sheet and Invitation, which conspicuously included the 5.00pm deadline, and the Council's "noting" of the four documents amounted to a decision that, insofar as its approval was required, those documents were approved for distribution. There is no basis for inferring that the Bar Council did not advert to the contents of the documents it noted; far from the references to 5.00pm being inconsistent with the references to the last Friday in July, they gave more precision and definition to them, in the obvious context that no-one would expect the office to remain open to midnight.

34 The plaintiff submitted that it told against a 5.00pm deadline that clause 17 of the Protocol provided a discretion to extend time only in respect of an "application ... which is received later than the last Friday in July", which would leave a lacuna in respect of an application received on the last Friday in July but after closing time. Even if this were an exercise in statutory or contractual construction - which it is not - that would be resolved by construing, as I would, the reference to "the last Friday in July" as "closing time on the last Friday in July" - a view that would reflect the practical reality that it would not be expected that the Bar Association office would remain open until midnight to receive applications.

35 Because they are not legislative or contractual instruments, principles of construction that resolve apparent inconsistencies in documents by resort to a hierarchy of documents are inapt. If the question were whether the Bar Association or President had represented that applications would be received until midnight on 25 July 2014 (which it is not), that question would be resolved by considering the whole of the representational conduct, not just the protocol, and in the light of the Notice, Invitation, and the Cover Sheet - and the obvious fact that the Bar Association office ordinarily closed at 5.00pm and would not be open until midnight to receive applications - no recipient could have been in doubt that applications received after 5.00pm would be rejected (except, perhaps, in case of accident or special circumstances, at the President's discretion). Certainly, the plaintiff was under no misapprehension in that respect.

36 Likewise, because the Protocol is not a legal construct, and there is no legally enforceable right to have a timely application considered, it is not relevant to inquire whether the closing time for applications was essential. In any event, the notion of essential and non-essential time conditions is one that operates in the field of contract. There are many other fields, somewhat analogous to the present, in which it is irrelevant: for example, the closing time for nominations for an election; the closing time for applications for employment or an appointment; the closing time for tenders for a contract; the closing time for applications for a scholarship; the closing time for accepting an offer; and the closing time for nominating a person for an honour or award.

37 Even if the notion were relevant, the statements in the documents about the 5.00pm deadline went far beyond mere warnings for the benefit of applicants, but included categorical statements that applications received after that time would not be considered. The statement in the Invitation that "Any application received by the Bar Association after 5.00pm on 25 July 2014 will not be considered" is categorical and would plainly convey that time was essential.

38 Accordingly, even if the arguments about the existence and essentiality of the 5.00pm rule raised justiciable issues (which they do not), the rule was sufficiently authorised by the Bar Council, and time under it was manifestly essential.

Validity

39 Under this head I address the contentions that the 5.00pm rule served no valid constitutional object of the Bar Association, and that it was contrary to Legal Profession Act, s 81(2).

40 The plaintiff's submissions emphasised that the objects of the Bar Association included promotion of the administration of justice, promotion of the interests and standards of local practising barristers, education, and promotion of fair and honourable practice amongst barristers, and do not include the division of the Bar into an "inner" and "outer" bar. However, as the plaintiff concedes, that distinction is recognised elsewhere in the constitution. The plaintiff did not submit that the making of arrangements for the selection and appointment of senior counsel was outside the objects. The plaintiff's submission was that any such scheme must be carried on consistently with the objects, so as to serve the administration of justice and the interests of all "local practising barristers", fairly, equally, and in good faith; and that a strict 5.00pm deadline was not necessary for the administration of the system, and did not serve the interests of all local practising barristers or promote the administration of justice, because it arbitrarily excluded from consideration an application that was as little as 12 minutes late.

41 As to justiciability, I would accept that the member of an incorporated association has an enforceable right, arising from the constitutional contract, to have the affairs of the association conducted in accordance with its constitution, and to restrain ultra vires acts of the association. Thus I would accept that the plaintiff would have standing to seek a declaration that a decision of the Bar Association was void on constitutional grounds.

42 But in my view there is no merit in the submission that the 5.00pm rule is ultra vires. Once it is accepted that establishing a scheme for the selection and appointment of senior counsel is within the powers of the Bar Association, the specification of a time by which applications must be made is obviously incidental thereto. The fact - if it be so - that it may not directly promote the administration of justice or the interest of all local practising barristers, does not mean that it is ultra vires.

43 The plaintiff next contends that the 5.00pm deadline is a rule, guideline or ruling that is prohibited by Legal Profession Act, s 81, which provides that practice as a barrister is subject to the 'barristers rules', and to no other rules, guidelines or rulings of the Bar Association or Bar Council:

(1) Practice as a barrister is subject to the barristers rules.

(2) Practice as a barrister is not subject to any other rules, practice guidelines or rulings of the Bar Association or Bar Council.

44 The Barristers Rules comprise the rules made by the Bar Council, as well as joint rules made by the Bar Council and the Council of the Law Society. Section 702 empowers the Bar Council to make rules "for or with respect to engaging in legal practice as a barrister". Such rules may make provision for or with respect to any aspect of legal practice [s 706], and are binding on legal practitioners [s 711], except to the extent that they are inconsistent with the Act or the regulations [s 712]. However, the Attorney General may declare a rule inoperative if it imposes restrictive or anti-competitive practices that are not in the public interest, or is not otherwise in the public interest [s 706].

45 In that context, it is clear that the purpose of s 81 is to prevent the Association and the Bar Council from regulating barristers' practices other than by rules made in accordance with the procedure prescribed by Pt 7.5, which rules are subject to disallowance by the Attorney General. As to justiciability, I would accept that if the Bar Association endeavoured to govern or regulate a barrister's practice by rule, guideline or ruling other than the Barristers Rules, the barrister would have standing to obtain relief, on the basis that s 81 conferred a right to carry on practice unencumbered by any such rule, guideline or ruling.

46 The plaintiff submitted that the 5.00pm deadline is "a rule, guideline or ruling of the Bar Association" which has an effect on the practice of a 'Local Practising Barrister' by excluding him from the right to be fairly considered for the right to advertise his legal services under the letters SC. The argument is that (1) by s 84, a barrister can advertise in any way the barrister sees fit (subject to any regulations under s 85), so long as it is not false, misleading or deceptive, or in contravention of consumer and competition legislation, but such a contravention is capable of being professional misconduct or unsatisfactory professional conduct; (2) it might be misleading and deceptive, and thus in contravention of s 84(2) and potentially professional misconduct, for a barrister who has not been duly appointed under the Protocol to use the term 'senior counsel' or the postnominals SC; (3) by excluding a late applicant from consideration, the 5.00pm deadline has the practical effect of preventing the barrister from using the designation "senior counsel"; (4) that effect is a constraint on his practice which is not permitted by s 81(2).

47 The plaintiff's argument must boil down to the proposition that any "rule, guideline or ruling" that prevents him from using the designation "senior counsel" and is not found in the Barristers Rules offends s 81(2). However, the plaintiff eschewed any argument that the Protocol as a whole offended s 81(2). In any event, on the argument as stated above, while I do not doubt that for a barrister to hold himself or herself out as senior counsel, not having been so appointed, would be misleading or deceptive, the relevant constraint on legal practice is imposed by s 84(2) - namely that a barrister must not advertise in a manner that is false, misleading or deceptive - and not by the Protocol, let alone by the 5.00pm deadline.

48 In my view, neither the Protocol, nor the 5.00pm rule, governs, constrains or regulates practice as a barrister in any way. Neither says anything on the subject of how a barrister conducts or promotes his or her work. The imposition of a deadline for the lodging of an application for appointment as senior counsel is not a rule, guideline or ruling concerning practice as a barrister.

49 Accordingly, the "5.00pm rule" is not invalid as ultra vires the Bar Council, nor avoided by Legal Profession Act, s 81(2).

Restraint of trade

50 The plaintiff submits that the 5.00pm rule is void as an unreasonable restraint of trade. The relevant principles may be summarised as follows.

51 In New South Wales, the starting point is that a restraint of trade is valid to the extent to which it is not against public policy [(NSW) Restraints of Trade Act 1976, s 4(1)]. (For this reason, expositions of the law in other jurisdictions must be treated with some caution, especially so far as concerns the proposition that a restraint is prima facie contrary to public policy and void; cf Ashley J's summary in D'Souza v RANZCP, [219], to which, subject to the foregoing caveat, I am indebted]). A restraint is against public policy (and therefore invalid) to the extent that it is unreasonable.

52 The first question is whether there is a restraint of trade [cf Peters (WA) Ltd v Petersville Ltd (2001) 205 CLR 126, 134 [14]]. For this purpose, "trade" includes all forms of employment and the provision for reward of all manner of services, and extends to a profession or calling [Buckley v Tutty, 371-2; Peters v Petersville, 135 [14]]. A restraint of trade involves a restriction on the liberty of a person to engage in remunerative work. This has variously been described as a restriction on the liberty of a person to carry on trade with others in such manner as he or she chooses [Petrofina (Great Britain) Ltd v Martin [1966] Ch 146, 180 (Diplock LJ); approved in Esso Petroleum Co Ltd v Harper's Garage (Stourport) Ltd [1968] AC 269, 317 (Lord Hodson)]; a restriction on the work a person may do for others, or on the arrangements he or she may make with them [Petrofina v Martin, 169 (Lord Denning MR)]; and an interference with a person's liberty of action in trading [Nordenfelt v Maxim Nordenfelt Guns and Ammunition Company [1894] AC 535, 565 (Lord Macnaghten, restating in modern terms what had been said by Lord Macclesfield in Mitchel v Reynolds (1711) 1 P Wms 181; [1558-1774] All ER Rep 26; cited with approval by Lord Wilberforce in Pharmaceutical Society of Great Britain v Dickson [1970] AC 403, 440]. Whether a provision, rule or decision is a restraint depends on its practical effect rather than its legal form [Pharmaceutical Society v Dickson, 440; Howard F Hudson Pty Ltd v Ronayne (1972) 126 CLR 449; Peters v Petersville, 135 [14]]. The restriction need not amount to a total inhibition on activity for there to be a restraint [D'Souza v RANZCP, [222]] (a point to which it will be necessary to return).

53 The doctrine applies to restraints howsoever imposed, and is not confined to contract; it can apply to rules of an organisation, and to decisions made under such rules [Buckley v Tutty, 375-6; Hughes v Western Australia Cricket Association (Inc) (1986) 19 FCR 10, 50]. Thus a decision reached by fair and correct interpretation of a rule will nonetheless be void if the rule itself is an unreasonable restraint; or a reasonable rule may be applied in the individual case in a manner which is unreasonable (for example, for denial of procedural fairness).

54 The second question is whether the restraint is one to which the doctrine applies. Some species of restraint of trade - for example, covenants by a purchaser or lessee restricting the use of land - do not attract the doctrine [Peters v Petersville, 135 [14]-[15]; Esso Petroleum v Harper's Garage, 332 (Lord Wilberforce)]. In Esso Petroleum v Harper's Garage, various rationales were advanced to explain these cases, none of them entirely satisfactory [see JD Heydon, The Restraint of Trade Doctrine, pp 51-62]. Lord Wilberforce's explanation (Esso Petroleum v Harper's Garage, 335), that the transactions involved in these cases were ones that "have become part of the accepted machinery of a type of transaction which is generally found acceptable and necessary, so that instead of being regarded as restrictive they are accepted as part of the structure of a trading society", was adopted by the Full Federal Court in Australian Capital Territory v Munday (2000) 99 FCR 72, 89-93, after a full consideration of the authorities. But while the High Court noted this in Peters v Petersville (at 138 [23]), it was considered inappropriate to express any concluded view on the matter.

55 The third question is whether the restraint is unreasonable, having regard to the interests of the parties and the interests of the public [Peters v Petersville, 139 [27]]. The line between improper restraint and acceptable regulation of trade is not always easily discernible, and drawing it involves a similarly subjective judgment as does whether conduct is negligent or a contract is unjust.

56 Plainly, appointment as senior counsel is not necessary to carry on practice as a barrister. However, the plaintiff submitted that the restriction of entry into the inner bar - designated by public announcement, postnominals, a different uniform, and the traditional and historical recognition that these badges invoke - operates as a barrier to "senior work", and is thus a restraint of trade. As I have observed, there can be a restraint without there being a total inhibition on carrying on trade. In D'Souza v RANZCP, it was held that while the plaintiff was not prevented from practising as a psychiatrist, the fact that he was not a Fellow of the College practically placed a substantial restraint upon him engaging in practice as a psychiatrist, because there were many fields open to Fellows which were limited, or open only by discretion, to one who was not a Fellow (at [223]-[226]). Ashley J summarised the situation thus:

15 The circumstance that the plaintiff has not been admitted as a Fellow means that he does not have a qualification which is pertinent to some hospital appointments, to the performance of certain work pursuant to the Mental Health Act 1986, and to practise as consultant psychiatrist in private practice. It places a barrier, though not insuperable, upon him being recognised as a consultant or specialist psychiatrist for purposes of the Medicare rebate system. Of these matters, more later.

57 To somewhat similar effect is a line of authority in California from which has emerged what is called "the common law right of fair procedure". In Pinsker v Pacific Coast Society of Orthodontists 460 P 2d 495 (1969) (Pinsker 1). Membership of the respondent association, which had rejected the appellant's application for membership, was not essential for a dentist desiring to specialise in orthodontics, and the appellant was carrying on a lawful orthodontics practice and generating substantial earnings from it. However, membership was the only available endorsement of specialist status, and would be economically advantageous, resulting in increased referrals, enabling him to charge substantially larger fees, and making him eligible to take certain courses restricted to members. The Supreme Court of California held that although not economically necessary in the strict sense, membership of the respondent association was a practical necessity for a dentist who wished not only to make a good living as an orthodontist but also to realise maximum potential achievement and recognition in that specialty, so that an applicant for membership had a judicially enforceable right to have his application considered in a manner that complied with the fundamentals of due process, including showing cause for rejection.

58 In Pinsker v Pacific Coast Society of Orthodontists 526 P 2d 253 (1974) (Pinskter 2), the Supreme Court of California described its conclusion in Pinskter 1 in the following terms:

In Pinskter 1 we concluded that although membership in defendant orthodontic associations could not be said to be "an economic necessity," the associations still wielded monopoly power and affected sufficiently significant economic and professional concerns so as to clothe the societies with a "public interest."

59 In Marin County Board of Realtors, Inc v Palsson 16 Cal.3d 920, 130 Cal.Rptr. 1, 549 P.2d 833 (1976), the Supreme Court of California stated the rule in Pinskter as being that "when membership in an association is a practical economic necessity, judicial review is available to examine bases for exclusion from membership".

60 In Ezekial v Winkley 572 P 2d 32 (1977), the same court relied on Pinsker as establishing that it could intervene in the admission practices of professional societies where membership was a practical prerequisite to pursuit of a medical or dental career, and extended it to a hospital's expulsion of a resident, where completion of an approved residency was a prerequisite to practising a surgical specialty, and as a practical matter the expulsion would prevent the plaintiff's acceptance into any other surgical residency program. In Potvin v Metropolitan Life Insurance Co 997 P 2d 1153 (2000), the Court applied the doctrine to an insurance company's decision to remove a doctor from its preferred provider list, but explained that this was so only because the particular insurer possessed such substantial power that the removal significantly impaired the ability of an ordinary competent physician to practice medicine or a medical speciality in a particular geographic area, thus affecting an important and substantial economic interest.

61 However, while the principle in Pinskter has not been questioned, it has been distinguished [Dougherty v Haag 165 Cal App 4th 315 (2008); Yari v Producers Guild of America, Inc 161 Cal App 4th 172 (2008); Kim v Southern Sierra Council Boy Scouts of America 117 Cal App 4th 743 (2004); King v Regents of University of California 138 Cal App 3d 812 (1982); Criminal Courts Bar Assn v State Bar 22 Cal App 3d 681 (1972); Heath v Redbud Hospital Dist 620 F 2d 207 (9th Cir 1980); Cain v Air Cargo Inc 599 F 2d 316 (9th Cir 1979); Parker v American Numismatic Ass'n 2007 Wash App LEXIS 927 (2007)], more often than it has been followed [Palm Medical Group Inc v State Comp. Insurance Fund 161 Cal App 4th 206 (2008); Golden Day Schools Inc v State Dept of Education 83 Cal App 4th 695 (2000); Conservatorship of Wendland 78 Cal App 4th 517 (2000)].

62 In Criminal Bar v State Bar, the Court of Appeal of California observed that the basis for intervention in Pinsker 1 was that membership of the organisation was a "practical necessity" for a dentist who wished to practice orthodontics. In Heath v Redbud Hospital, one of the grounds on which the 9th Circuit upheld summary dismissal was there was no "licensing or certification factor" (present in Pinsker 1 and Ezekial v Winkley) denial of which would make pursuit of the plaintiff's chosen trade or profession impossible. In King v University of California, the appellant non-tenured professor sought an order directing the University to conduct a full adversarial hearing on its decision to deny him tenure. The Court of Appeal distinguished Pinsker 1 on the basis that the University did not possess the requisite degree of practical control over a teacher's career; that the appellant's right to practice his profession was not foreclosed by refusal of tenure; and that the University had simply decided not to accord him the special privilege of life-time employment: "His ability to seek other employment in his profession has not been curtailed in any respect, nor has his professional status been removed or damaged". Those observations resonate in the current context.

63 In Kim v Boy Scouts, the Court of Appeal said that the common law right to fair procedure protected an individual from arbitrary exclusion from membership in a private entity affecting the public interest "where the exclusion or expulsion adversely affects 'an important, substantial economic interest'", in situations where the private entity had substantial power that significantly impaired the affected individual's ability to work in a particular field or profession. Kim's case failed not only because failure to promote him to a higher scout rank had no economic consequence, but also because the doctrine did not extend to an organisation's decision whether to confer on a member a specific rank, award or leadership role.

64 In Parker v American Numismatic Ass'n, the Washington Court of Appeals affirmed summary dismissal of a claim by the plaintiff member challenging his expulsion. In holding that his claim was not cognisable, the Court distinguished Ezekial v Winkley and Pinsker 1 on the basis, inter alia, that the decisions of the associations in those cases made pursuit of an individual's chosen trade or profession impossible, which was not the case in Parker v American Numismatic Ass'n as he still had his shop and, although he would no longer receive the Association journal, he could access it through a library:

Accordingly, it is clear that Parker is not threatened from permanent exclusion of practising his trade ...

65 In Yari v Producers Guild, the Court of Appeal of California explained that the doctrine applies only to private decisions that can effectively deprive an individual of the ability to practice a trade or profession. That was not satisfied by allegations that the plaintiff's career as a film producer would have been enhanced had the defendant given him an Academy Award credit, and that his reputation was tarnished because he was not. Further, it was insufficient that denial of the producer credit award had economic ramifications:

No case holds that the doctrine applies to all private decisions which have economic ramifications for an individual, and it is quickly apparent that economic ramifications are not enough. Otherwise, a wide variety of awards and honours decisions would be subject to judicial scrutiny.

66 Thus while Pinsker 1 establishes that economic necessity in the strict sense is not essential, the cases that follow show that the courts will intervene in such a case only where admission to the association is a practical necessity, and exclusion significantly impairs the plaintiff's ability to practice (or to specialise, or to practice in a particular geographic area) so as to affect an important and substantial economic interest. The key trigger for intervention in Pinsker 1 was that while Pinsker could practice as and call himself a specialist orthodontist regardless, membership was the only available endorsement of specialist status. A mere economic or reputational impact is insufficient, and the doctrine does not extend to decisions to grant or withhold promotion, honours and awards, or special privileges. On that analysis, the doctrine would not apply to the appointment of senior counsel under the Protocol, which is analogous to promotion or the grant of a special status or privilege.

67 In this Court, in Levitch v Australian Dental Association (NSW Branch) (Supreme Court (NSW), Cohen J, 21 December 1984, unrep) an interlocutory injunction was granted restraining the association from giving effect to a resolution expelling the plaintiff and from treating him as if he were not a member, notwithstanding that it was not necessary to be a member in order to practice dentistry and that not being a member would not directly impinge on the plaintiff's earning capacity, but where there would potentially be some loss of prestige and standing. However, this was an interlocutory judgment, in which the principles were not addressed, and the matter was decided on the balance of convenience.

68 Unlike D'Souza v RANZCP, there is barely any field of practice for a barrister that is open only to senior counsel: the only one of which I have been able to think is that of providing an advice or opinion where the contract stipulates for "the opinion of senior counsel". The plaintiff's application for silk itself demonstrates that he appears in cases as leading counsel with a junior, and against senior counsel. The plaintiff's evidence and submissions addressed the supposed "competitive advantage" that silk was said to confer, but a competitive advantage falls far short of a barrier to areas of practice. Unlike in D'Souza v RANZCP, there is no impediment to a barrister engaging in virtually every aspect of practice open to a barrister without being appointed senior counsel. Unlike in Pinskter 1, there are no professional opportunities that are restricted to senior counsel. It may be accepted that appointment as senior counsel is likely to result in an increase in the complexity and importance of briefs, and the ability to charge higher fees, but even under the Californian line of authority that would be insufficient to warrant intervention. There is no impediment to junior counsel engaging in any aspect of a barrister's practice - save for the de minimis field of providing advices where "the opinion of senior counsel" is stipulated for. Exclusion from the inner bar does not restrict a barrister's liberty to carry on trade in such manner as her or she chooses, or restrict him or her in the work he or she may do for others, or the arrangements he or she may make with others. It does not interfere with a barrister's liberty of action in carrying on practice. In this respect the case is quite different from D'Souza v RANZCP, in which exclusion from the College meant as a practical matter exclusion from significant fields of practice. The plaintiff submitted that exclusion of barristers from "the senior rank" is a matter of adverse notice; but I do not accept that there is any stigma associated with not being appointed senior counsel. At worst, it involves a judgment that an applicant does not meet the stringent standard of eminence and excellence in several domains required to justify appointment. The very fact that appointment is for the eminent, and not the long-serving, demands that there will be many very competent barristers of considerable experience who fall short of sufficient eminence to attract appointment. Stories of unsuccessful applications for silk by barristers who have later succeeded, and/or been appointed to the bench, abound.

69 I conclude that a policy governing admission to the inner bar does not impose a substantial restraint upon engaging in practice as a barrister. Nor is admission to the inner bar a practical necessity for a barrister who wishes to practice in all fields of a barrister's work. If that conclusion be correct, then the doctrine of restraint of trade would not invalidate any aspect of that policy. But lest it be incorrect, I will consider the 5.00pm rule.

70 Even if a policy that governs the admission of barristers to the inner bar amounts to a restraint of trade, in my opinion the 5.00pm rule does not, because the connection between the "rule" and the supposed economic prejudice is too remote. In D'Souza v RANZCP, Ashley J put this in terms of causation: his Honour explained that it could not be concluded that the examiners' decision to fail Dr D'Souza effected a restraint on him comprehensively practising his profession because it was certain, or nearly so, that the Council would not have admitted him to Fellowship then, or at any time while investigations were continuing. His Honour proceeded to assume, without deciding, that had the examiners not failed him, he would have been admitted as a Fellow sometime later, and thus that a causal link between the examiners' decision and the economic detriment was established. In the present case, however, the evidence does not begin to demonstrate that, had the plaintiff's application not been rejected as late, it would have succeeded. His eight previous applications had not. The decision would have been made after an extensive consultative process. The ultimate decision involves a judgment by a professional selection committee based on the professional qualities and standing of the applicant. Only a minority fraction of applicants are successful in any one year.

71 And even if the 5.00pm deadline were a restraint, it would be invalid only to the extent that it is unreasonable. It could not sensibly be said that, in the context of a process by which applications are considered on an annual basis, it is unreasonable to appoint a time by which applications must be received - as I think Mr Oakes SC, who appeared for the plaintiff, accepted [T11.34], in reformulating the submission to the effect that an inflexible deadline was contrary to the public interest because it constrained the pool of candidates who might be considered. The necessity for such a "deadline" is apparent from the wide range of somewhat analogous fields, mentioned earlier, in which similar deadlines operate. If there were no such time, then those charged with considering the applications and overseeing the consultative process could never know when the field was closed. Moreover - unlike many of those other areas - the result is not permanent, as another opportunity to apply will present itself the following year. The plaintiff submitted that the imposition of the sanction of loss of a right to be fairly considered, for failure to comply strictly with the 5.00pm deadline, was a penalty (and presumably, void) in accordance with Andrews v ANZ Banking Group Limited (2012) 247 CLR 205. But the consequence of failure to comply with the deadline was no more than the ordinary consequences of missing a deadline, namely the loss of the opportunity that was available until the deadline. No penalty is incurred; the opportunity to which the deadline applied simply ceases to be available, and only until the next annual cycle of applications. In any event, the doctrine of penalties remains confined to the context of contract [Andrews v ANZ, 216; it has no application here.

72 In my view, the imposition of a deadline in these circumstances is far from unreasonable, but necessary. Having regard to the ample notice and widespread publicity given to it, an inflexible deadline would not have been unreasonable, although in this case it is further mitigated by the discretion to accept a late application in case of accident or special circumstances.

Oppression

73 The plaintiff, being a member of the Association, invokes Corporations Act, ss 232 and 233. Two fundamental questions arise: whether the imposition of the 5.00pm deadline and its application to the plaintiff is an aspect of "the conduct of [the Association's] affairs" (within s 232(a) or an act or omission by or on behalf of the Association (within s 232(b); and if so whether it is "oppressive to, unfairly prejudicial to, or unfairly discriminatory against" the plaintiff, whether in his capacity as a member or in any other capacity (within s 232(e)).

74 I am content to accept, for present purposes, that the application of the 5.00pm deadline to the plaintiff was an aspect of the conduct of affairs of the Association, or an act or omission by or on behalf of the Association, so as to fall within s 232(a) and/or (b).

75 As to whether it was oppressive or unfairly prejudicial, in Wambo Coal Pty Ltd v Sumiseki Materials Co Ltd [2014] NSWCA 326, the Court of Appeal reiterated that oppression, at a minimum, imports unfairness according to ordinary standards of reasonableness (at [225]) (per Barrett JA; Bathurst CJ and Beazley P concurring):

Brennan J observed in Wayde v New South Wales Rugby League Ltd [1985] HCA 68; 180 CLR 459 (at 472) that conduct will be oppressive if that conduct was unfair according to ordinary standards of reasonableness and fair dealing; and oppression, at a minimum, imports unfairness. In Catalano v Managing Australia Destinations Pty Ltd [2014] FCAFC 55, the Full Federal Court (Siopis, Rares and Davies JJ) put the matter this way (at [9]):

The test of unfairness requires an objective assessment of the conduct in question with regard to the particular context in which the conduct occurs. The question is whether objectively in the eyes of the commercial bystander there has been unfairness, namely conduct that is so unfair that reasonable directors who consider the matter would not have thought the conduct or decision fair. As the test is objective, whether or not the conduct is oppressive will not depend upon the motives for what was done. It is the effect of the acts that is material.

76 The "particular context" in which the impugned conduct occurred included that the 5.00pm deadline applied universally to all applicants, had been widely publicised, was known to the plaintiff, and was applied to the other late applicant. There is nothing discriminatory, unfair or oppressive about a deadline that applies generally to all applicants. That conclusion is reinforced by the circumstance that ample notice had been given of it.

77 In my judgment, application of the deadline was not oppressive to, or unfairly discriminatory against, the plaintiff; and if it was prejudicial to him (in the sense in which that word is use in s 232), it was not unfairly so. He has not been treated differently from any other candidate, and no reason is apparent as to why the rule should apply to others but not to him. If it be detrimental or prejudicial to the plaintiff to be excluded from consideration for silk for this year, no oppression or unfairness has produced that result: rather, the consistent application of a reasonable deadline has done so. In reality, he is arguing that he should receive especially favourable treatment, which is quite the opposite of oppression, unfair prejudice or unfair discrimination.

78 The "5.00pm rule" cannot be characterised as oppressive, unfairly prejudicial or unfairly discriminatory to the plaintiff.

79 Additionally, while the statute authorises the grant of relief to a plaintiff who is oppressed not qua member but in some other capacity, if the only impact is on the plaintiff in a capacity other than as a member, "then normally, the court would decline to grant relief" [John J Starr (RE) Pty Ltd v Robert R Andrew (Australiasia) Pty Ltd (1991) 6 ACSR 63, 65]. In this case, the alleged oppression of the plaintiff has nothing to do with his membership of the Association, but is in his capacity as a "Local Practising Barrister", or a member of the Outer Bar. That provides an additional basis on which relief would be declined, as a matter of discretion.

The President's decision

80 The plaintiff next impugns the President's decision not to consider his application notwithstanding that it was late, under the clause 17 discretion. This also was advanced on the dual bases of restraint of trade and oppression.

Restraint of trade

81 If, as I have concluded above, the imposition and application of the 5.00pm deadline is not a restraint of trade, then it follows that the President's decision likewise is not a restraint of trade. If, as I have concluded above, the imposition and application of an inflexible deadline, if it were a restraint of trade, would not be an unreasonable one, then a discretionary decision not to waive it could not amount to an unreasonable restraint. It is only if the 5.00pm rule is (contrary to my opinion) a restraint of trade and is (also contrary to my opinion) saved from unreasonableness only by the flexibility inherent in the Presidential discretion, that the President's decision could itself be a restraint which would be void if unreasonable.

82 The President's decision was impugned on multiple grounds, which may be summarised as follows: (1) that she failed to consider and to find a case of "accident" or "special circumstances", and thus never gave proper consideration to exercising the discretion; (2) pre-judgment, including that all late applications should be dealt with the same way regardless of the particular circumstances of each; (3) failure to find that any proper object was to be served by exclusion of the plaintiff's application or that there was any fact or circumstance warranting its rejection on the ground of lateness; and (4) failure or refusal to consider or have regard to the plaintiff's explanation and submissions.

83 It was suggested that inference of error was facilitated by the President's failure to give reasons for her decision. This was not a case in which there was any obligation to give reasons. Sometimes, the absence of reasons may facilitate an inference of discretionary error. But that is rarely if ever so where the decision is objectively reasonable on its face. To a significant extent, the reasons emerge in any event from the correspondence, and in particular the Executive Director's letters of 29 July and 5 August. The explanation offered by the plaintiff for his lateness was essentially that he was detained in court longer than he had expected on 25 July; this was later elaborated with an explanation of the considerable professional and personal demands on his time over the preceding month. As it seems to me, the President decided in substance that there was nothing sufficiently special about the plaintiff's circumstances to warrant the exercise in his favour of a discretion for which "accident" or "special circumstances" were a necessary precondition, but which did not of themselves require a favourable decision.

84 Failure to consider and to find a case of "accident" or "special circumstances", and thus to give proper consideration to exercising the discretion. The President considered and rejected a case of special circumstances: so much appears from the Executive Director's letter of 29 July, the effect of which was to hold that the explanation advanced by the plaintiff in his letter of 28 July - that he was detained in Court longer than he had anticipated - did not amount to "special circumstances". She was not wrong in so holding: the circumstance of being detained in court longer than expected is within the frequent experience of every barrister, and it was amply open to the President to conclude that there was nothing "special" in the plaintiff's circumstances, and even if there were that the circumstances were not such as to call for the favourable exercise of the discretion. While the case of "accident" is not expressly addressed, it was raised in the plaintiff's correspondence and implicitly rejected in the Executive Director's letter of 5 August, and the same reasoning applies to it. As it depends on exactly the same facts as the case of "special circumstances", there is no significance in the absent of separate explicit reference to it: if being detained in Court longer than anticipated constitutes "accident", it is so foreseeable an accident that there is nothing unreasonable about declining to treat it as sufficient ground for waiving the deadline. Objectively, the President's decision was a reasonable one.

85 Pre-judgment, including that all late applications should be dealt with the same way regardless of the particular circumstances of each. This argument was founded on the internal communications to the effect "rules are rules" and "late is late" as indicating that any late application was doomed to be excluded from consideration regardless of the circumstances, and reinforced by what was said to be the assumption that the plaintiff would "whinge". I do not think these matters point to any prejudgment of the exercise of the discretion to consider his application though late. Those communications took place before any application for exercise of the discretion had been made. The issue then under consideration was whether, in order to avoid what was seen as a probable dispute with the plaintiff if his application were excluded as late, it might be accepted notwithstanding that it was 12 minutes late. The outcome was that it should make no difference that the plaintiff might complain, if he was late, by howsoever long or short a margin, he had missed the deadline. Insofar as these communications indicated that any late application would be treated as late, such a position is entirely fair, reasonable and unexceptionable. That says nothing as to how the clause 17 discretion might be exercised, if it were invoked, in any individual case.

86 Failure to find that any proper object was to be served by exclusion of the plaintiff's application or that there was any fact or circumstance warranting its rejection on the ground of lateness. This argument inverts the correct position. The starting point was that the application was out of time. It was for the plaintiff to demonstrate facts and circumstances that warranted a favourable exercise of discretion, or in other words why he should be relieved from the consequences of failing to meet the deadline; not for the President to be satisfied that some proper object was to be served by declining to do so, or that some factor warranted that course.

87 Failure or refusal to consider or have regard to the plaintiff's explanation and submissions. The evidence does not establish that there was a failure to consider or have regard to the plaintiff's explanation and submissions. Absence of detailed responses and reasons does not show that the arguments were not considered. That they did not succeed does not mean that they were not taken into account. In this case, the proper inference - in particular from the Executive Director's letters of 30 July and 5 August - is that the President read and considered, but rejected, the arguments advanced by the plaintiff. For the reasons already stated, that decision was objectively a reasonable one.

88 In his correspondence (and, to a lesser extent, in his submissions to the Court), the plaintiff argued that the facts that this was his ninth application, and that there was what he described as a "history of frustration" between him and the Bar Association on the subject of silk, were matters that called for special consideration. To my mind, they are quite irrelevant to a proper exercise of a discretion to waive a deadline on account of "accident" or "special circumstances", and in not taking those factors into account as relevant - as the Executive Director's letter of 29 July indicates - the President was entirely correct.

89 Accordingly, even if the President's decision operated as a restraint of trade, it was not an unreasonable one.

Oppression

90 In my judgment, a refusal to exercise the clause 17 discretion to extend time was not oppressive to, or unfairly discriminatory against, the plaintiff; and if it was prejudicial to him (in the sense in which that word is use in s 232), it was not unfairly so. It would be otherwise if it appeared that the discretion was conventionally exercised liberally, and the plaintiff had been singled out for adverse treatment, but that was not suggested, let alone established - the evidence is that the only other late application was also excluded, and that a late application had been excluded in the past, and there is no evidence of late applications having been accepted. The plaintiff's complaint is really that he was not given especially favourable treatment - by extending to him a liberty to bring in a late application that was not extended to others. But again, failure to afford the plaintiff especially favourable treatment is not oppression or unfair discrimination.

91 This is reinforced by the above analysis of the complaints made about the President's decision, which demonstrates that the decision was a reasonable one. A reasonable decision not to give the plaintiff especially favourable treatment by relieving him of compliance with a deadline with which all other applicants had to comply cannot remotely be characterised as oppressive, unfairly prejudicial or unfairly discriminatory to him. There was no unfairness to the plaintiff in not relieving him from the consequences of missing the deadline.

92 Accordingly, the President's decision was not "oppressive to, unfairly prejudicial to, or unfairly discriminatory against" the plaintiff.

The Bar Council's non-intervention

93 The plaintiff next argued that the Bar Council's failure or refusal to reconsider and review the President's decision, or to relax the 5.00pm rule, was an unreasonable restraint of trade, and/or oppressive.

94 The reasons I have given for holding that the President's decision was not an unreasonable restraint of trade, nor oppressive, lead to the same conclusion in respect of the Bar Council's non-intervention.

95 Insofar as the plaintiff relies on his standing, as a member of the Association, to have the Bar Council review the President's decision, it would be necessary to identify some obligation arising in or under the constitution to do so. None was identified. Even under the Protocol, which is not part of the constitutional contract, the clause 17 discretion is one given to the President alone, and it is the President, not the Bar Council, who under the Protocol appoints senior counsel. The Protocol does not give the Bar Council any function to perform in the nature of reviewing any decision of the President. It was argued that because the Bar Council established the Protocol it could review decisions made under it, but that is no more correct than a proposition that because Parliament establishes courts and tribunals it could review decisions of those courts or tribunals. While it is true that in one case, the absence of an internal right of appeal contributed - with many other factors - to a finding that a rule (that provided for automatic disqualification without a hearing or any appeal) was an unreasonable restraint [Hughes v WA Cricket Association, 52], that is very far removed from the present circumstances.

96 In my view, the Bar Council had no relevant review function to perform.

Corporations Act, s 1322(4)(d)

97 Finally, the plaintiff invokes Corporations Act, s 1322(4)(d), which relevantly provides as follows:

(4) [Court may make orders] Subject to the following provisions of this section but without limiting the generality of any other provision of this Act, the Court may, on application by any interested person, make all or any of the following orders, either unconditionally or subject to such conditions as the Court imposes:

...

(d) an order extending the period for doing any act, matter or thing or instituting or taking any proceeding under this Act or in relation to a corporation (including an order extending a period where the period concerned ended before the application for the order was made) or abridging the period for doing such an act, matter or thing or instituting or taking such a proceeding;

and may make such consequential or ancillary orders as the Court thinks fit.

98 The power is qualified by "the following provisions of this section", which relevantly include:

(6) [Conditions for making orders] The Court must not make an order under this section unless it is satisfied:

(a) in the case of an order referred to in paragraph (4)(a):

(i) that the act, matter or thing, or the proceeding, referred to in that paragraph is essentially of a procedural nature;

(ii) that the person or persons concerned in or party to the contravention or failure acted honestly; or

(iii) that it is just and equitable that the order be made; and

(b) in the case of an order referred to in paragraph (4)(c) - that the person subject to the civil liability concerned acted honestly; and

(c) in every case - that no substantial injustice has been or is likely to be caused to any person.

99 Section 1322(4)(d) confers power on the Court to make 'an order extending the period for doing any act ... or instituting ... any proceeding ... in relation to a corporation ...'. The "act, matter or thing" for which an extension of time is sought must be "in relation to a corporation".

100 In Re Affinity Health Ltd [2006] NSWSC 579; (2006) 58 ACSR 461, Barrett J (as his Honour then was), while holding that a period specified in an ASIC class order issued under s 341 for the doing of an act specified in the class order was one that came within the words "the period for doing any act, matter or thing ... in relation to a corporation", nonetheless suggested, without deciding, that the bounds of those words might be derived from analogy with statutory situations, though they might be even broader (at [13]):

It gives due weight to the words "or in relation to a corporation" which, clearly enough, are intended to refer to an act, matter or thing not directly referable to the Act itself (under this Act). It also keeps the extension effected by the words "or in relation to a corporation" within bounds appropriately derived from analogy with statutory situations. Whether those bounds may, in some later case, be found to be even broader is a question for the future.

101 It was not suggested that there was any statutory analogy that might be relevant. Just because a corporation is somehow involved does not mean that the act or proceeding in question is one "in relation to a corporation". For example, it would not be suggested that s 1322(4)(d) authorised an order extending time for compliance with a time condition in a contract to which a corporation was party. While the words "in relation to" are of wide import, in this context they require at least that the act, proceeding etc have some effect on the corporation, and do so because it is a corporation - or in other words, they affect it because it is a corporation.

102 The plaintiff submitted that the plaintiff's application for silk is the relevant "proceeding", and that it is a proceeding in relation to a corporation - the Association - rather than merely in relation to its business or affairs, because it involves "promotion to a different rank or class of member - as described in the Constitution, and is therefore an application contemplated by the Constitution for a change of a member's status under the Constitution.

103 However, a successful application does not change the status of a member of the Association. The categories of membership under the Association's constitution, as prescribed by rule 4, are "Ordinary Member" (whether Class A or Class B) and "Life Member". While the constitution contains references to senior counsel, it is not a separate category of membership. Appointment as such does not change the status of a member in relation to the Association - although it confers professional seniority.

104 In my view, an application for silk is not a proceeding "in relation to a corporation" within the meaning of s 1322(4)(d). It has no effect on the Association, and any effect it might have is unrelated to the corporate status of the Association. Section 1322(4)(d) is therefore not available.

105 If, however, the power were available, it would be necessary to consider whether this is a proper case for its exercise. While it is a pre-condition of an order that the Court be satisfied that no substantial injustice has been or is likely to be caused to any person, the absence of injustice or prejudice to others does not mandate that an extension must be granted. Where it is sought to extend time, particularly retrospectively, the Court will ordinarily require some explanation as to why it was not met, and persuasion that it would be just to relieve from the consequences of non-compliance.

106 In this case, the explanation is essentially that the plaintiff was delayed in court on 25 July - the last day for lodgement - longer than he had anticipated - an event well within the experience of any barrister and well within the ordinary vicissitudes of practice. It is not a compelling explanation for the delay.

107 The detriment to the plaintiff is the loss of a chance to be considered for appointment for a year, not forever. Others, who lodged their applications within time, might well have done so with their documentation less comprehensive than they would have preferred, in order to comply with the deadline. Another, whose application was received after 5.00pm, was also rejected. The provision of a "level playing field" for all applicants - not just the plaintiff - tells against it being just to relieve from the consequences of not meeting the deadline. It would be unfair to the applicants who adhered to the deadline, and to the other late applicant whose application was rejected, to permit an extension.

108 Were s 1322(4)(d) available, I would not have been persuaded that this was a case for the exercise of the discretionary power it confers.

Conclusion

109 My conclusions may be summarised as follows:

110 Even if the arguments about the existence and essentiality of the 5.00pm rule raise justiciable issues (which they do not), the rule was sufficiently authorised by the Bar Council, and time under it was manifestly essential.

111 The "5.00pm rule" is not invalid as ultra vires the Bar Council. Once it is accepted that establishing a scheme for the selection and appointment of senior counsel is within the powers of the Bar Association, specification of a time by which applications must be made is obviously incidental thereto and valid, even if it does not directly promote the administration of justice or the interest of all local practising barristers. Nor is the "5.00pm rule" avoided by Legal Profession Act, s 81(2). The imposition of a deadline for the lodging of an application for appointment as senior counsel is not a rule, guideline or ruling governing, regulating or constraining how a barrister carries on practice as such.

112 A policy governing admission to the inner bar does not impose a substantial restriction upon engaging in practice as a barrister; nor is admission to the inner bar a practical necessity for a barrister who wishes to practice in all fields of a barrister's work. The Protocol is not a restraint of trade, and the doctrine of restraint of trade does not affect any aspect of it, including the 5.00pm rule. But even if a policy governing the admission of barristers to the inner bar were a restraint of trade, the 5.00pm rule is not, because the connection between the "rule" and the supposed economic prejudice is too remote. Further, even if the 5.00pm deadline were a restraint, the imposition of a deadline in this context is far from unreasonable, but necessary; and having regard to the ample notice and widespread publicity given to it, an inflexible deadline would not have been unreasonable, although it is further mitigated by the discretion to accept a late application in case of accident or special circumstances.

113 The "5.00pm rule" cannot be characterised as oppressive, unfairly prejudicial or unfairly discriminatory to the plaintiff. He has not been treated differently from any other candidate. If it be detrimental or prejudicial to the plaintiff to be excluded from consideration for silk for this year, no oppression or unfairness has produced that result: rather, the consistent application of a reasonable deadline has done so. In addition, as the alleged oppression of the plaintiff has nothing to do with his membership of the Association, but is in his capacity as a "Local Practising Barrister", or a member of the Outer Bar, relief would be declined, as a matter of discretion.

114 It follows from the conclusion that the 5.00pm deadline is not a restraint of trade, or if it is, is a reasonable one, even if inflexible, that the President's decision under clause 17 could not be an unreasonable restraint. In any event, even if the 5.00pm rule were a restraint saved from unreasonableness only by the flexibility inherent in the clause 17 discretion, the President's decision was objectively not unreasonable, and has not been shown to have been affected by prejudgment or other relevant error.

115 The President's decision was not "oppressive to, unfairly prejudicial to, or unfairly discriminatory against" the plaintiff. A reasonable decision not to give the plaintiff especially favourable treatment by relieving him of compliance with a deadline with which all other applicants had to comply cannot remotely be characterised as oppressive, unfairly prejudicial or unfairly discriminatory to him.

116 The conclusion that the President's decision was not an unreasonable restraint of trade, nor oppressive, leads to the same conclusion in respect of the Bar Council's non-intervention. In any event, the Bar Council had no relevant review function to perform.

117 An application for silk is not a proceeding "in relation to a corporation" within the meaning of s 1322(4)(d). It has no effect on the Association, and any effect it might have is unrelated to the corporate status of the Association. Section 1322(4)(d) is not available. Were it available, I would not have been persuaded that this was a case for the exercise of the discretionary power it confers.

118 All the plaintiff's grounds therefore fail.

119 The Court orders that the proceedings be dismissed, with costs.

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Decision last updated: 01 December 2014