Letters Patent is a document issued by or on behalf of the monarch conferring upon the recipient a right, privilege or office.
On 27 November 2001 I was appearing for Creative Entertainment Pty Ltd in the Coroners Court of New South Wales. Creative Entertainment owned and operated the Big Day Out. During the performance of Limp Bizkit at the Sydney BDO in January 2001, Jessica Michalik died in a crowd collapse and the NSW Coroner, Jackie Milledge, was conducting an Inquest into her death.
I was, before that day, Mark E Dean, to distinguish myself from Mark D Dean another Victorian barrister. My practise was relatively successful and so I had applied for silk; appointment as senior counsel. In 1999 the last QCs had been appointed in Victoria. The then Labor government decided that it did not want to be involved in the recommendation of barristers to be appointed by the Governor as Queen’s Counsel and so the title was changed to Senior Counsel in 2000. But the process remained; that is, Letters Patent were issued but the Governor.
The Coronial Inquest was being heard in Sydney. It was a fascinating case and Mick Upton, The Beatles former driver and by 2001 a festival security advisor, was called to give evidence about the ‘D barrier’ that was designed to satisfy the Coroner that the BDO could continue safely in the future.
I had an idea that my application for silk may be successful as the then Chief Justice John Philips wrote to me after my application seeking some further information. I rang a few other likely candidates to see if they received the letter that I found on my chair in my Melbourne chambers on a weekend return home. They had.
The protocol in 2001 was that the new silks were announced on the last Tuesday in November, a bit like the Melbourne Cup. And so I asked my clerk to see if any further letters (from the Supreme Court ) turned up on that last Tuesday in November, on my desk, in Melbourne. It was a nervous wait.
The phone rang on 27 November 2001 as I was walking along Parramatta Road with the good news. Another Victorian barrister working on the case suggested that I announce my new appearance to the Court as SC. This was not terribly well received by the Sydney barristers or Jackie Milledge who didn’t really get the BDO either. But we had a big night out and the case went well. Mick’s evidence was compelling and the BDO continued for many years. New Order headlined the show after the Inquest. Jessica’s father became close to the BDO attending many in Sydney and throughout Australia and the shocking loss of his daughter was the catalyst for global safety improvements at large music festivals.
I practised as Mark E Dean SC until I was appointed to the County Court of Victoria, by Letters Patent on 28 September 2010.
While I was sitting as a judge I was aware of the various changes to the process of appointment as Senior Counsel and Queens Counsel in Victoria that led to barristers having the option following appointment as SC to apply to the Attorney—General to become QC. The overwhelming majority of new appointments and practising SCs apply to become QC. Sitting judges who are SC are not permitted to apply to become QC, presumably to preserve the separation of constitutional responsibilities. It is generally thought that practising as QC is a brand, a recognition of seniority and expertise and not necessarily a statement that one is a constitutional monarchist.
The title QC is well recognised in our community and throughout many other jurisdictions. Gough Whitlam was a QC. I was in first year law and studying for exams at the University of Melbourne when his commission as Prime Minister was terminated by Sir John Kerr. That event, for my generation, sealed the deal for most of us regarding the role of the monarch in Australian constitutional law. But as junior barristers we respected the QCs—the leaders of the Bar: Frank Vincent QC, John Winneke QC and Lillian Lieder QC. The KCs were the men who had argued the significant constitutional cases that Colin Howard taught us—Dixon KC, Barwick KC, Menzies KC—the conservatives who shaped the development of the law here. They were interesting figures in our history yet there was something dark about the title KC and they were all men. In fairness to many of those men (although none of the above), they served in World War 2 and the impact of that no doubt shaped their view of the world. I know it did in my father’s case.
On 6 June 2022 I retired as a judge of the County Court of Victoria and travelled to the Kimberley to relax, unwind and reflect. I decided that an option would be to return to practise at the Victorian Bar and so sitting in a remote bar 100 km south of Broome overlooking Roebuck Bay I applied online to change my SC to QC. The application was a simple form submitted to the Victorian Attorney General for the issue of new Letters Patent. For me, it was a formality but I was also well aware of the division amongst friends and colleagues about the implications of making the change.
On 16 August 2022, the Executive Council appointed me and eight other SCs, QC. In total five women and four men were appointed. That day we became Her Majesty’s Counsel. It lasted 23 days. I suspect, but do not know, that we may be the last QCs appointed anywhere in the Commonwealth. And it is likely that there will not be any other QCs appointed for the foreseeable future assuming that King Charles III and Prince William reign for the years ahead.
At around 6am, 9 September 2022 I received a text from a friend on northern hemisphere time advising that Queen Elizabeth had died. I, like many of us, was really quite surprised. She looked pretty good on the Tuesday with Liz Truss. Whilst the precise time of Her Majesty’s passing remains unclear, at approximately 3.30am AEST I became a KC without the issue of new Letters Patent to ensure continuity.
That day I watched ABC news and listened to Radio National and then went to the Melbourne Writers Festival to see Mohsin Hamid speak about his new novel The Last White Man. Waiting for my partner outside The Athenaeum I met Brian Cox of Succession (there was a new King that day) fame. Hamid’s novel is about a white man who wakes up one morning to discover he has a different skin colour and unfamiliar appearance. Hamid spoke so well about change, loss and most profoundly about how our imagination distills what we read. It was quite a surreal day and so we went for dinner at the Cellar Bar and I realised I’d been eating there for 40 years or so.
On the day we learnt of the Queen’s death I was advised by the Victorian Bar that I had become KC. It was an immediate transition for the Bar too and I wondered why it was that it was communicated so quickly. Matt Collins KC, the President of the Australian Bar Association was also quick to appear in the media to discuss the change. In this context it is important to note that in NSW, WA and Tasmania it was not possible to be appointed a QC and so the change was not national. This reinforced, for me, the conclusion that the title is one of branding and branding that I was happy to apply to myself. Yet there remained a lingering uncertainty and discomfort in my mind.
As I write this, looking out over the farm, a fox and a wedge tailed eagle are fighting over the remains of a dead kangaroo in the paddock above the creek. The fox prevails even after another eagle arrives to assist.
The uncertainty I feel resides in my own mortality and the experience of change. For reasons that I cannot fully articulate the title KC connects me to the time of my father, the war and the dispossession of Aboriginal lands. While the death of the Queen will change the nation it has also taken us back to the time of a King. A time distant in our make up. A time few of us know but do not want to return to.
The SCs may not feel this way today and some friends are not impressed that I made the change to QC, but I am content to experience this knot in my life, and will remember well how that fox prevailed as the rain swept across the paddocks on Dja Dja Wurrung country. And that change will come.
Mark E Dean KC is a retired judge, writer and farmer.