In the NSW Supreme Court on Friday, Mr Smallbone's barrister, Malcolm Oakes, SC, argued it was unfair for the "guillotine" to fall on his client after a handful of minutes, and he should be given an extension of time. Mr Oakes argued the 5pm deadline was "never formally adopted" by the association's governing body, the Bar Council, and the real deadline was midnight. He read from internal Bar Association emails in which the association's executive director, Philip Selth, said Mr Smallbone would "whinge" if his application was rejected for lateness but it should not "make an exception" for him. "I agree, late is late," the association's president, Jane Needham, SC, replied, adding that extensions of time were granted only in extraordinary circumstances. Later she wrote that "rules are rules, whether it is someone I like ... or someone who has sued us".

The latter was a reference to Mr Smallbone, who won a Federal Court case in 2011 that gave him the right under privacy law to read comments made about him by other lawyers as part of the senior counsel appointment process. Appointment as senior counsel, known as taking silk in a nod to the silken barristerial robes, is the Holy Grail for barristers. It marks them apart from their peers and allows them to charge more for their services – in some cases as much as $10,000 a day. In rare cases a top silk could charge $25,000 a day, such as for an appeal. This is Mr Smallbone's ninth attempt to be appointed senior counsel. Mr Oakes said it was a "manifestly excessive or disproportionate result" for his client to be "shut out" of applying for silk for another year.

Mr Smallbone had been in a "great rush" to finalise his application after he was in court for longer than anticipated. But Ian Jackman, SC, for the Bar Association, said the 5pm deadline had been made "absolutely explicit". It was "not like an RSVP on a social invitation", he said. The list of new silks is expected to be released next week, but Justice Paul Brereton said he was unlikely to make a decision before then.