Struggle by the Australian Bar Association to keep its name to itself … Barrister’s business used a similar name … Attempt to make barristers’ service more accessible … Into the future … Long and tiring litigation looks like drawing to a close … Nick Bonyhady reports 

According to reports of the parliamentary inquiry, Minus thinks that many small operators in the franchise business had never heard of his government appointed job and that apart from providing mediation services to disputing parties, he also needs to be able to issue binding determinations as an arbitrator. 

The inquiry is currently examining the franchise industry’s code of conduct which, by many accounts, is inadequate to the task of dealing with unconscionable conduct. 

Derek Minus is a barrister, mediator, arbitrator and an internationally qualified instructor in Aikido, the Japanese martial art. He advertises novel mediation seminars that incorporate insights from his practice of Aikido. 

He is also has an affinity for and understanding of technology far in advance of many barristers of his generation. 

In May 2013, Minus wrote to bar associations around the country spruiking a new initiative, Australasian Barrister Chambers Pty Ltd, of which he was the sole director. 

He described it as “a true virtual chambers” with a website, austbar.com.au, which would be “a place to find an Australian barrister with a national focus”.

The website is now offline, but it featured a fetching scales of justice logo in burgundy and a list of barristers.

The Australian Bar Association, with its closely similar web address of austbar.asn.au, was not pleased. 

Michael Colbran QC, then president of the ABA, responded: 

“The Australian Bar Association is concerned that people will be misled into believing that your ‘virtual chambers’ in some way has the support, affiliation, approval or sponsorship of the Australian Bar Association. It does not.” 

Colbran demanded that Minus stop using the domain and the logo.

Minus declined, noting that his scales of justice logo was “derived from the Greek mythological figure, Themis, an oracle at Delphi”.

“[It is] surprising that the Bar Associations would be concerned at competition from within the ranks of its own members”, Minus wrote.

Just days after the exchange of letters, Minus’ company Australasian Barristers Chambers registered the business name “Australian Bar Association”.

According to Minus, his purpose was, “to protect the interests of Australian barristers”.

“My view was that the ABA purported to be an association of Australian Barristers but, in fact, was not. The name that was being utilised by the ABA was unregistered and should have been available to Australian barristers for an association.”

In a 2017 judgment, Justice Andrew Greenwood in the Federal Court found for the ABA and noted that he was … 

“… willing to accept that [Minus] has come to believe that he acted out of some sort of pastoral protective concern for Australian barristers by assuming that all of his own individual concerns about the conduct and status of the ABA were inherent truths and that barristers more generally needed a new organisation.”

Justice Greenwood added that Minus’ belief was “not well placed”.

Yet, the barrister proceeded with registering the ABA business name. Between 2013 and 2016, Minus also registered “Australian Barristers Association” as a business name, incorporated a company called AUSTBAR Pty Ltd, and registered a website with the URL austbaradr.com.

For its part, the Australian Bar Association registered in its name a wordmark and a logomark, incorporated itself and commenced proceedings against Minus.

Initially, Minus had some success. Justice Annabelle Bennett stepped aside from a Federal Court case because her husband David Bennett QC was sitting at the time on the NSW Bar Association’s governing body. 

He also suggested there was some “association” between Justice Bennett and Philip Selth, the executive director of the NSW Bar Association. 

Minus also asked Justice John Nicholas to disqualify himself, but his Honour declined, noting that while he was a member of the NSW bar he was not a member of the ABA and wasn’t likely to become one.

After these interlocutory skirmishes, Minus’ fortunes changed. He and his associated companies were ordered to stop using names similar to “Australian Bar Association”. He continues to oppose the ABA’s registration of “Aust Bar” and “Australian Bar Association”. The ABA has applied for summary dismissal of Minus’ opposition to its name registrations and this is before the Federal Circuit Court on July 31. 

There have been lengthy arguments about whether every barrister was actually a member of the ABA, what rights the members had, whether the association had transparent accounts and whether its assets had been transferred properly when the ABA changed from a voluntary to an incorporated association. 

These battles have taken time. Federal Circuit Court Judge Philip Dowdy only handed down his judgment in April, rejecting Minus’ request that he disqualify himself from the ABA trademark case. 

It seems part of the delay was due to Minus’ difficulty in attending court. On one occasion he asked the judge to move a hearing due to his lecturing duties at the University of Sydney. Dowdy was not moved by this submission. 

University of Sydney law lecturers are equally unmoved when presented with excuses from absent students. 

Minus’ constant court battles over five years have cost an enormous amount of time and money. One of his companies, Australasian Barristers Association Pty Ltd was wound-up in December 2015. Its liquidator received title to three units at Culwulla Chambers that had been in the possession of Minus’ company. 

His defamation action, after radio bloviator Alan Jones called him “Putin-like”, was struck out by Justice Lucy McCallum for want of prosecution.  

Philip Selth, the former CEO of both the ABA and the NSW bar, would have spend hundreds of hours on this litigation.  

He believed he was making a contribution towards modernising the way barristers function and find work, and to use technology in the promotion of their services. 

The ABA website does now have a “find a barrister” link on its home page, but for most people it’s useless because you have to know the barrister you’re finding. 

There have been new entrants into the “dating service” space, without the need to appropriate names approximating those already used by established barrister organisations. 

For its part the ABA has had clear victory, and is now looking to bankrupt Minus if he cannot come up with half a million dollars in costs.