William Lye OAM KC

COURT LITIGATION

What barristers do?

A barrister is a legal professional who specializes in court-room advocacy, drafting legal pleadings, and providing expert legal opinions. Traditionally, barristers are retained by solicitors who represent clients in court, and they advise on the law and evidence while conducting trials or appeals. However, in limited circumstances, a client can directly retain a barrister to provide legal and strategic advice in their area of expertise.

All barristers in Australia are self-employed and practise from chambers, where they offer a fresh and independent view of disputes between parties. They are strategic advisors and independent advocates, and their first duty is to the court, making them officers of the court.

William Ah Ket was the first barrister of Chinese descent to practice at the Victorian Bar. He was born in Wangaratta in 1876 and died in 1936. He has the lucky number of 88 on the Victorian Bar roll.

On the other hand, less is known about Wu Ting Fang, who was born in the Straits Settlement in 1842. At a young age, he was sent to Hong Kong where he learned to read and write English. Later, Wu studied law in the United Kingdom at University College London and was called to Lincoln's Inn in 1876, the same year that Ah Ket was born. Wu became the first ethnic Chinese barrister in history. Wu and his wife, Ho Miu Ling, had a son named Wu Chaoshu, who studied at Atlantic City School in New Jersey and the University of London. Both father and son served as foreign diplomats to the USA under the Qing dynasty. Wu Chaoshu's grandson is US Federal Court Judge George H Wu for the Central District of California. 

SENIOR COUNSEL or queen’s counsel or king’s counsel

The titles and ranks of Senior Counsel (S.C.), Queen's Counsel (QC), or King's Counsel (KC), also referred to as "Silk," recognize a barrister's distinguished and proven merit as an advocate in the administration of justice. Silks are members of the inner Bar and act as leaders with additional professional responsibility to clients, the community, and the legal profession. They are typically instructed in more difficult or complex matters.

The Institution of Silk dates back to the late 16th century, when Queen Elizabeth named Sir Francis Bacon as "learned counsel extraordinary to Her Majesty." Sir Francis Bacon was the first "Crown Counsel." In 1604, King James I appointed Sir Francis Bacon with letters patent, making him the first King's Counsel. The title Queen's Counsel is of ancient lineage.

The gowns of Senior Counsel, Queen's Counsel, or King's Counsel are made of silk. In Victoria, the silk gown incorporates a rosette attached to the back of the gown by a silk ribbon. The rosette is a square piece of black silk decorated with a bow on each corner, with several layers of ruffled silk pinned with a button in the center.

The office of Queen's Counsel or King's Counsel is conferred by Letters Patent for pre-eminent distinction as an advocate in Court. Letters Patent is a legal instrument issued by a Monarch or the prerogative powers of the Head of State, granting an office, right, monopoly, title, or status to an individual. Other individuals appointed by Letters Patent include the Governor, Deputy Governor, Executive Councillor, Minister, Supreme or County Court judge, King's Counsel, and Royal Commissioner.

In most States and Territories, Senior Counsel are appointed either by the Chief Justice or by the President of the Bar Association. In Victoria, Senior Counsel are appointed by the Chief Justice pursuant to Rule 14.10 of the Supreme Court (Miscellaneous Civil Proceedings) Rules 2018 and under the seal of the Court. The appointments are entered onto the Roll of Senior Counsel kept by the Prothonotary of the Supreme Court.

A Queen’s Counsel or King’s Counsel is appointed by Letters Patent to be ‘one of Her or His Majesty’s counsel learned in the law’. Senior Counsel in Victoria and South Australia may apply for Letters Patent to be appointed to the office of Queen’s Counsel or King’s Counsel upon invitation by the Attorney General and then upon recommendation to the Governor in Council. In Queensland, appointments are now made as King’s Counsel. Prior to the demise of Her Majesty the Queen, the power to appoint Queen’s Counsel through the issue of Letters Patent is exercised by the Governor in Council. See for example in Victoria the Appointment of Her Majesty’s Counsel Order 2014.

Senior Counsel who obtains a grant of Letters Patent for a commission as Queen’s Counsel or King’s Counsel undertakes not to use the designation ‘Senior Counsel’ or ‘S.C.’ from the date of her or his appointment as Queen’s Counsel or King’s Counsel.

The appointment and Letters Patent expressly provide that the appointment is without loss or gain of precedence granted previously as Senior Counsel, and with full authority to do all things that any other of Her or His Majesty’s Counsel may do and in the same manner and form.

The Letters Patent is a single page document addressed to the recipient setting out the particular commission. It is signed by the Governor and the Attorney General. In Victoria, the details of the Letters Patent are entered in the Register of Letters Patent administered and kept by the Secretary, Department of Premier and Cabinet.

The first Queen’s Counsel in Victoria were appointed on 10 August 1863. John Hubert Plunkett was the first Queen’s Counsel appointed on 6 June 1856 in New South Wales. It took just over 100 years for Joan Rosanove, who was the first female Queen’s Counsel in Victoria, to be appointed in 1965. Looking around the world, the first female King’s Counsel was Helen Kinnear from Canada, appointed in 1934. The first women King’s Counsel in the United Kingdom were Helena Normanton and Rose Helibron, both appointed in 1949. Dame Roma Mitchell, from South Australia, was the first woman in Australia to be appointed Queen’s Counsel in 1962. The first women appointed Queen's Counsel in New Zealand were Chief Justice Dame Sian Elias and Dame Lowell Goddard, both appointed on 4 March 1988.

Appointments to the rank of King’s Counsel (KC) are currently only made in the states of Victoria, Queensland, and South Australia. New South Wales, Australian Capital Territory, Northern Territory, Western Australia, and Tasmania continue to confer the rank of Senior Counsel (S.C.) only. The Commonwealth of Australia can also appoint KCs.

The title ‘S.C.’ for Senior Counsel is not to be confused with the bravery decoration the Star of Courage (‘SC’ - without the dots) that is the second highest Australian Bravery Decoration in the Group of Bravery Citations awarded for acts of conspicuous courage by members of the community in circumstances of great peril.

The use of letters after an individual’s name follows a prescribed order. Decorations and Honours under the Australian Honours System take precedence before Queen’s or King’s Counsel or Senior Counsel.

On the demise of the Crown, each of Her Majesty’s Counsel will immediately and automatically become one of His Majesty’s Counsel and designated as “King’s Counsel” or “KC”.

What counsel does?

William has practised as a barrister for 36 years.

His principal areas of legal practice involve commercial disputes, contractual disputes, corporations law, cross border matters, and alternative dispute resolution. Specific areas include computer and technology matters, oppression and shareholder disputes, enforcement of foreign judgments and awards, contract law, property law, intellectual property law (trademarks and copyright), commercial arbitration, and mediation.

William believes that every problem has an answer but not every answer is the right solution for the client. He seeks to find a strategic pathway to resolve a dispute. 

William is also admitted to practice in NSW, ACT, QLD, NT, WA, SA, and TAS and has appeared in the Courts in NSW, NT, WA, and SA, He can assist clients in their matters in all jurisdictions. He is also able to assist clients with their international arbitration disputes, including acting in international mediation.

WHAT DOES IT COST?

Litigation is costly. The process takes up much of the litigant's resources in time and money. Costs charged to clients are often based on a solicitor-client basis, and any amount recovered upon a success outcome is often less than what a client has paid as the Court usually orders costs on a party-party basis.  In some jurisdictions, each party might have to bear its own legal costs. 

what are Counsel's feEs?

An estimate of William’s fees will be given prior to the work being undertaken. William usually requires his fees to be deposited into the Trust Account of his clerk in advance of the work being undertaken.