Prez of the Qld CA explains the history of barristers, their admissions, the role of the court in the functions of the profession … From pleaders, narrators, attorneys, benchers, serjeants-at-law, inns of court … 800 years compressed into a blistering 46 paragraphs … It’s all about an application for costs … Subeta Vimalarajah reporting 

Walter Sofronoff, president of Queensland’s court of appeal demonstrated his avid interest in legal history in reasons for declining a costs order brought against the Legal Practitioners Admissions Board.

The decision concerned an appellant who sought a declaration that his work as a male escort in his 20s, which resulted in a finding of sex with an underage person, would not affect the board’s assessment as to whether he was a fit and proper type for admission as a lawyer. 

The specific issue at hand was whether the appellant, having been granted that declaration on appeal, could seek costs from the Legal Practitioners Admissions Board, which had initially refused to make such a declaration. 

The seemingly narrow constraints of the matter at hand were no obstacle to a learned discourse from the Cossack on the origins of the bar. 

HH explained that it was “necessary to refer to some of the history of the profession of barristers so that the place of the Legal Practitioners Admissions Board in the Act can be understood and so that its liability to be ordered to pay costs can properly be considered”. 

By the thirteenth century the English common law courts commonly came to accept the appearance of professional pleaders or “narrators” who conducted the oral pleadings and argued questions of law on behalf of clients. 

Narrators were distinct from attorneys, whose role was to represent their principals not only in litigious matters but also in other legal affairs.  

HH said this led to the development of the Inns of Court where senior pleaders could train their apprentices. The courts asserted control over the attorneys, but the pleaders were not regarded as officers of the courts and to this day, “modern barristers in England are also not so regarded”.  

Moving on from developments under Edward 1 in 1292, we find the Inns flourishing under QE1 (1558-1603), so much so that Lord Coke, CJ of the Kings Bench, described them as, “most excellent, and behooveful for attaining to the knowledge of these lawes”. 

Students who were promoted to the point where they could argue moots were “called to the bar”. HH observed: 

“The significance of this call to the bar was that the resulting ‘barrister’ would be able, after a period of probation, to appear in court on behalf of litigants. No further sanction of the court itself was required.” 

Members of the bench were appointed from among the ranks of serjeants-at-law, who were senior barristers and governors of the inns of court. 

They regarded themselves as belonging to a special tribe or order, and called each other “brother”, which is the way male judges quaintly still address each other today. 

The “benchers” had disciplinary authority over the members of their respective inns, which controlled admissions. However, the High Court also regarded itself also as having a power of admission, saying in 1780 that the judges had “delegated” the power of admission to the inns.  

Meanwhile, Down Under, the Charter of Justice of 1823 authorised the NSW Supreme Court to admit fit and proper people as barristers. By 1848 there was a Barristers’ Admission Board in NSW, which consisted of all the Supreme Court judges, the AG, and two briefs. 

This idea caught on in Queensland in 1896, where the rules did not provide for an order for costs in admission appeals. New rules came into place in 1975 and they remained basically unchanged until the Legal Profession Act of 2003. 

HH went into some details about the ins and outs of the Act – admissions, and the jurisdiction of the Supreme Court. 

Some 46 paragraphs later we arrive at the role of the admissions board, which is a peculiar creature being “a statutory adjunct to the court”. 

“Accordingly, it would be incongruous if the Act were to provide for an award of costs to be made against the board when the board is present to ‘help’ the court. The board is not in any sense whatsoever a party to litigation. It appears by reason of its statutory entitlement to appear and to be heard upon a question in which the court is interested for its own purposes. It neither wins nor loses, whatever the court decides.” 

According to this interpretation, the Cossack found the Act confers an immunity on the board against an award of costs. 

Further: 

“The board should appear in such cases and thereby fulfil its statutory duty to help the court without fear of its members being made liable for costs in the event that a mere majority of the court, or even a unanimous court, might take a different view about the matter.” 

Gotterson JA and Douglas J said they agreed with this approach.