“I was raised in a Sri Lankan household with Sri Lankan values, and I’m really proud of that, and I love that. I have a combination of values from Sri Lanka and Australia, and I represent a very large population of Sri Lankan Australians who’ve been injured in the workplace or on the roads. And whilst the legal profession has made certain advancements when it comes to cultural diversity and in our jurisdiction, we’re starting to see judges of colour, female counsel from different ethnic backgrounds, we have a long way to go,” he said.

“[But I’ve had] a couple of recent experiences at court and in a pre-hearing conference with counsel, where, despite being in 2023 and having made so much progress in cultural diversity, it’s evident we’re still not quite there.”

The first of these experiences happened when Mr Fernando was representing a young Sri Lankan woman in the Supreme Court who had experienced a hit and run while riding a bicycle. However, the argument from the Transport Accident Commission was that there was a lack of objective damage to the bicycle to confirm that a road accident actually took place.

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“The suggestion was that our client had fabricated this story to derive a financial benefit. Now, that soon changed from suggesting she was fraudulent to then submitting at court that she was genuinely mistaken. In any event, as the case started, there was a discussion at the bar table about the name of my client, the plaintiff in the matter, and the witnesses, who also happened to be from a Sri Lankan background. And they had long surnames. But the thing about Sri Lankan surnames is they’re not that difficult to pronounce; they’re quite phonetic. And the comment that was made by senior counsel for the defendant was that these names were real tongue twisters.

“And I gave up. Now, I know this barrister. I had previously briefed this barrister. He holds a very prominent position within our jurisdiction. I’ve sat on a board of trustees with him, [and] I get on with him. But that comment was offensive. And at the end of the day, our names are our identity. And to deny even attempting to pronounce my client’s name, it was almost denying her existence, her identity. And so, at that moment, I didn’t say anything,” Mr Fernando added.

“The judge came on the bench; nothing could be said anyway. But I needed to communicate that this sort of comment was not OK. And I thought long and hard. And that afternoon, what I did was I wrote to the judge’s chambers, and I copied in counsel involved, and I said, ‘Dear all, to ensure that these names are properly pronounced, here they are phonetically.’ And I didn’t raise anything in the email about the comment that counsel had made. I mean, the objective was to make sure that everyone at least tried to pronounce these names.”

After sending out that email, Mr Fernando had a conversation with both his senior counsel and junior counsel and emphasised that that sort of comment is unacceptable.

“At the end of the day, we have an obligation as advocates not only to get lots of money for our clients but also to ensure that their integrity is preserved and protected during the litigation process. And my junior counsel said to me, ‘do you want me to say anything?’ And I said, ‘look, I mean, by all means, if you have a relationship with him, if you’re comfortable, then by all means.’ So, to his credit, he did, and he came back and said that he certainly didn’t mean to cause any offence by it,” he said.

“And this is it; there was no offence intended. But this ties in well with the unconscious bias as well. I mean, you are a product of your experiences, and if you haven’t had to represent certain clients from a certain ethnic group or if you’re unfamiliar with these names, you are going to make comments like this. And there’s an element of bringing awareness to different cultures and to ensuring that even if it is an older Anglo-Saxon male who’s a senior counsel, that they are informed about the impact of their comments.”

Mr Fernando also felt like he couldn’t rock the boat too much and said that therefore, strategically communicating any grievances.

“How would I be perceived? I’m heading a law practice that is still being established. How would, in turn, my firm be perceived? So, all of those considerations went through my head, and I really had to put the emotion aside, and I had a discussion with my team members to say to them, this is how I feel. How do you feel about it? And at Maxiom, we have such a multicultural group of individuals. So, I got their thoughts on it, and everyone agreed that this was not on,” he added.

“You do have to manage the politics, and you have one reputation in everything you do. You need to be mindful of your reputation in the profession, but you also have to have a high standard. It’s the standard you walk past is the standard you accept. Now, as legal professionals, we have to hold ourselves to a really high standard in society, and that extends to even the most very experienced senior barrister. So, it’s about understanding what is acceptable. And if you’ve identified behaviour that’s not acceptable, how to strategically communicate that to get the outcome.”

Another recent incident Mr Fernando experienced was over Zoom, where another senior counsel made a reference to Mr Fernando’s client, who was of South Sudanese descent, “being like a monkey” and unsophisticated. Mr Fernando debriefed him, the first time he had done so in his career.

“There was me and two other lawyers from my office that were part of that meeting. And we were all just confused as to why senior counsel just said it and also a bit shocked that he actually made reference to our client as a monkey. That meeting ended. My colleague, again, a senior colleague of mine who is Anglo-Saxon, messaged me and said, ‘did anyone else find this comment highly racist?’ And I was thankful because it wasn’t just me. That is incredibly loaded language when one is talking about a person of African descent. And I have no idea who this counsel is, and it’s probably best that I don’t know,” he explained.

“The three of us who were part of that meeting had a discussion about what’s the best way forward. We then had a discussion with the junior counsel in that case, who I actually have a good relationship with. And she also agreed that the comment was out of line and apologised for not speaking up. Now, she’s a lot more senior than I am, and she’s also from a diverse background, but at what stage do you speak up? We all have to have the courage to speak up, but we have to also do it in a strategic way.”

While these have been unique circumstances and this sort of behaviour is rare, Mr Fernando said that as a firm owner, it has been particularly challenging to manage all the different stakeholder relationships.

“You’ve got to obviously protect your client as best as possible in a myriad ways. You’ve got to look after your staff and manage their own expectations of you as their leader. You’ve got to liaise with counsel. How do you kind of walk that tightrope when it comes to thinking about some of these issues that obviously remain pervasive in the profession? And it’s a really important issue for me. I’ve experienced discrimination. I’ve experienced racism firsthand.

“And part of my desire to be a legal professional was to be in a position of influence where I could ensure that people weren’t discriminated against. And that’s why I love what I do, because we act for not just people who are injured but people of ethnic backgrounds who are injured, who have experienced racism in their careers. I mean, sometimes, we’re acting on behalf of individuals whose claim centres around the discrimination that they’ve experienced, so it’s a huge issue for me,” he added.

“But equally, I’ve learned to put my emotions and my passion [aside], evaluate the situation and respond strategically. And that’s all the more important now being in my position as a firm owner because my reputation is closely aligned with the reputation of my firm, and I want my team to be proud of where they work.”