At the Bar December 2013

At The Bar December 2013

Justice Glazebrook: Myths about the Gender Gap Professor Warren Brookbanks: Mentally Impaired Offenders Richard Pidgeon: Religious Disputes Andrew King: Tools for Managing eDiscovery

From the President INSIDE THIS ISSUE Pg 2 - From the President Pg 5 - From the Executive Director Pg 6 - Update from the High Court Pg 8 - It is Just a Matter of Time and Other Myths

Pg 12 - Mentally Impaired Offenders Pg 14 - Religious Disputes Pg 16 - eDiscovery – Managing More Efficiently Pg 18 - Lend Me Your Ears Pg 20 - Using the NZ Bar Website Pg 22 - Mooting Competition Pg 24 - CaseBase Review Pg 25 - New Members Pg 26 - Petrol Heads Corner – Targa 2013 Pg 29 - Obstacles and Opportunities - a Review Pg 31 - Christchurch Christmas Drinks Pg 32 - Christchurch Silks Dinner Pg 33 - Auckland Silks Dinner Pg 34 - Wellington Silks Dinner Pg 35 - NZBA Office Christmas Closure

EDITORIAL COMMITTEE Clive Elliott QC - Chair Tel: +64 9 309 1769 Email: Elliott@shortlandchambers.co.nz Melissa Perkin Tel: +64 9 303 4515 Email: Melissa.perkin@nzbar.org.nz CONTRIBUTIONS & ADVERTISING: Jacqui Thompson Tel: +64 21 679 061 Email: jacqui.thompson@nzbar.org.nz DESIGN AND LAYOUT BY Kirsten McLeod Tel: +64 9 834 2224 NEW ZEALAND BAR ASSOCIATION Tel: +64 9 303 4515 Fax: +64 9 303 6516 Email: nzbar@nzbar.org.nz Web: www.nzbar.org.nz P O Box 631 Auckland 1140

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reasons for belonging to the Bar Association. The first is the immediate benefits it offers through issues such as PI cover, training and collegiality. The second is being part of, and assisting with, the increasingly important and influential role the Association plays in relation to law reform, upholding the rule of law and other public policy issues that affect the judicial system. In the second of these areas it is the quality of the submissions and other contributions that your Stephen Mills QC Association makes that are of the As another Christmas and summer greatest importance, but there is no doubt that the growing size break rolls around it is again time to review the year that has passed and quality of the Association’s membership has played an and consider what members can expect from their Association in the important role in increasing its influence. year to come.

One of the potential changes to the regulation of the Bar that the Bar Council has been closely involved in for some time involves the future of the intervention rule.

The Lawyers and Conveyancers Act required the Law Society to carry out a review and this has been underway for some time.

Fortunately an earlier threat of complete abolition has been replaced by a more principled discussion about the purposes of the rule and whether there are areas of barristerial practice where the rule should be The Association has been actively modified or removed. The Bar involved in a number of significant Council has supported changes issues during the past year. Some to the rule where there is a principled basis for change, but are of immediate concern to it has also been insistent that any members. Others may be of less immediate concern, often involving changes must strengthen the independent Bar, not weaken it. wider issues of public policy, but For regulatory reasons the rule in all of these areas where the must also draw clear lines around Association is required to take a public position the size and quality when the rule applies and when it does not. of its membership is important to its credibility and effectiveness.

The intervention rule has now been the subject of vigorous This touches on the two reasons debate at two NZLS Council that I regard as the principal The past - 2013 I am pleased to be able to report that in 2013 your Association has again experienced an increase in both membership numbers and enquiries about membership and member benefits. At a time when the legal profession is undergoing a period of rapid change, not all of which is being welcomed by Association members, the size and quality of the Association’s membership is important to its credibility when it needs to speak out on issues.

meetings I have attended and in a number of working group sessions with the NZLS President and executive team. This has involved bringing into the process members of the Bar Association with expertise in particular areas of practice, such as family law, employment law and environmental law, so that the issues involved in these specialist areas of practice are properly understood.

There does now appear to be a reasonable prospect of agreement being reached on a proposed rule that will be put to the NZLS Council meeting in April for a vote.

The final decision on any changes to the intervention rule lies with the Minister of Justice.

I am grateful to Chris Gudsell QC for the time he has put into chairing the Association’s intervention rule subcommittee.

Your Association has been involved in consultation and submissions over the past year on issues that include the legal services review, civil pecuniary penalties, the review of the District Court Rules and fixed fees for criminal legal aid. In addition your Association continues to comment on law reform issues, particularly those that affect the independence of the courts and the judiciary.

I am grateful to members who have given their time to this important work, either as members of the Association’s law reform committee, or on an ad hoc basis in relation to specific submissions.

As the courts move towards new methods of managing hearings and major changes to the District Court rules, the Association’s membership of the Rules Committee has been invaluable. Over the past year I have been able to feed in the views of members on a range of issues. Andrew Barker has now agreed to step into this role as my alternate on the Rules Committee and in practise I expect him to take over the principal responsibility for this.

I thank the Heads of Bench for their time in discussing issues of mutual concern.

2013 saw the first QC appointment round in five years.

The Association has a formal role in the consultation process and as President I was involved in this.

This was an important event for the independent Bar. Your Association has for some time been closely involved in the effort to reinstate the rank as one that is principally available only to litigators practising at the independent Bar. This requirement has played an important role in establishing the strength and identity of the Bar. It is a requirement that continues to face criticism in some quarters and the Association will need to remain watchful to ensure that this requirement for

appointment remains and that the reasons for it are understood.

The Bar Association held celebratory dinners in Auckland, Wellington and Christchurch to welcome the large number of new silks. These were important occasions in recognising the significant professional achievements the new silks had made. I was delighted to be able to be at all but one of those dinners and at most of the call ceremonies.

The Bar Association is also part of the formal consultation process for High Court appointments under the new judicial appointments process. As President I was involved in meetings with both the Solicitor General and the President of the New Zealand Law Society to convey views about candidates for appointment.

Both of these consultative processes involvement important and difficult decisions and the ultimate outcomes will not always be universally acclaimed.

However, it is very pleasing that the Bar Association is formally consulted on these decisions, albeit the ultimate decisions are made elsewhere.

Your Association continues to be actively involved in training and seminar programmes and it is endeavouring to do this in a way that enables members to meet their CPD requirements. Particular attention is being given to migrating to presentation by webinar in order to reach members throughout New Zealand and not just in the main centres.

The 2013 Annual Conference in Queenstown was a highlight of the training and seminar year and an enormous amount of work was put in by many people, particularly the conference committee and the administration team. I am grateful for the time and contributions from all of these people and from the speakers, whose excellent presentations were well received. This event was covered in the October issue of At the Bar. The Council said farewell to two of its members during 2013 – Catherine Bibbey (Christchurch) and Dr Gerard Curry (Auckland). Both decided not to stand again for Council after several years of hard work and significant contribution. I was sorry to lose them from the Council, but very grateful for all they have contributed. I was very pleased, however, to welcome two new members to the Council – Marcus Elliott (Christchurch) and Peter Davey (Auckland).

Paul Mabey QC has agreed to accept the role of President elect and will hold that role until October 2014 when he will succeed me as President. I am delighted that Paul has been prepared to accept this appointment.

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The future - 2014 I expect one of the highlights of next year to be the World Bar Conference that will be held in Queenstown in early September. This conference is a bi annual event run by the International Council of Advocates and Barristers (ICAB), a body that represents the interests of the independent Bars worldwide. The last World Bar Conference was held in London.

I am grateful to Colin Carruthers QC, who was instrumental in persuading ICAB to give the Association the hosting rights for 2014. Initially the conference was to be held in Auckland in the week following Easter, but for a range of reasons this did not prove to be possible.

As a result of negotiations with the ICAB Board, which required me to travel to Boston to address the Board, ICAB agreed to the Association’s proposed alternative of Queenstown in early September. This change of date has required a re-organising of the original conference committee and it is now chaired by Kate Davenport QC. The conference committee has already confirmed a number of outstanding speakers from New Zealand, the UK, Australia, the USA, Zimbabwe and Hong Kong. The event will be held at the Heritage Hotel in Queenstown, where the conference will take over the entire hotel.

Those who attended the 2013 Annual Conference will be able to confirm that the venue offers superb views, comfortable accommodation and encouraged a great sense of collegiality. More information about the event is available on the Association’s website.

Immediately following the Conference there will be a two day advocacy intensive, taking advantage of the pool of talent available from the conference. This intensive will in part cover appellate advocacy training, the idea for which originated with Justice Randerson and we thank him for supporting this. There will be very limited places for this intensive so keep an eye out for announcements in the New Year.

In 2014 your Association’s training committee intends to focus on delivering skills based training to our members throughout the country. It is in the final stages of selecting the webinar platform for delivering many of these training sessions, but in person workshops will also be run, with the advantages of collegiality and networking that they offer.

Just as there were big changes for criminal barristers in 2013, 2014 will see significant changes for family barristers with the forthcoming changes to the Care of Children regime. The Association’s law reform committee will keep an eye on how this develops and continue to feed the Bar’s views into official channels.

We welcome members’ feedback on this.

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The Judicature Modernisation Bill will also require close attention from your Association to ensure that the changes do not weaken in any way the independence of the courts and the constitutionally important separation of powers. The Association already has a number of concerns in this area and it will raise them at the Select Committee hearings on the Bill if this is required.

Finally, the Association will be keeping a close watch on international trends. Many of the UK developments over the last few years have been precursors to the introduction of similar policies in our own jurisdiction.

At a recent seminar for criminal barristers, Professor Brookbanks noted that the UK has introduced advocacy standards for criminal barristers which will require them to seek accreditation at one of four levels. This will determine the complexity of cases they are allowed to handle. The scheme was devised by the bodies which regulate the legal profession in England and purports to protect the public from advocates who are below standard. The scheme is currently under challenge by way of judicial review and your Association will be keeping a close watch on developments.

England has also seen the introduction of limits on legal aid for judicial review applications, which will greatly affect a range of litigants, including those involved in immigration disputes and prisoners’ rights.

It is clear from my recent attendance at a workshop on legal aid held as part of the IBA conference in Boston that, with very few exceptions, legal aid and access to the courts is an issue worldwide. Your Council has been considering whether the Association is able to play a greater role in pro bono work and in assisting self-represented litigants. It has concluded that a proposal for a pro bono clearinghouse is not one that the Association is able to participate in, but the discussion about assistance to self-represented litigants will continue with the new Council The present – Christmas 2013 The reality is that most of us, after a challenging year, are having difficulty seeing beyond our summer holidays. Whatever you choose to do with this time, on behalf of the Council and staff at the New Zealand Bar Association I wish you a relaxing, safe and enjoyable holiday. To those who celebrate it, Merry Christmas. And to others, please enjoy the way you choose to celebrate this wonderful season of the year.

I look forward to your continued support for the Bar Association in the New Year.

Stephen Mills QC President

From the Executive Director

NZBA Council members Clive Elliott QC (centre) and Suzanne Robertson (third from right), Stephen Penk, Associate Dean, University of Auckland Law School (second from right) together with Executive Director Melissa Perkin, meeting with the Korean Delegation

In our final newsletter of the year, I would like to begin by offering our congratulations to those who have been appointed to the Bench since our last issue.

They are: Justice Cameron Mander and Justice Rachel Dunningham, who have been appointed to the High Court Bench, and Judge John Hassam, who will sit in the Environment Court.

We also note the retirement of Justice Priestley, after having given many years of service on the High Court Bench.

We have had a very busy year, with our most recent activities being a criminal law seminar in Auckland, the ½ day conference, Obstacles and Opportunities, in Christchurch and hosting a delegation from Korea who were in New Zealand to examine training and regulation of the legal profession in New Zealand.

so generously of their time. Your efforts were warmly received and appreciated.

A special thanks goes to retiring Council members, Catherine Bibbey and Dr Gerard Curry, for all their help and support.

I would like to wish you all a very happy and safe holiday season.

Melissa Perkin Executive Director

We are now gearing up for an even more exciting year with the World Bar Conference to be held in Queenstown next September, to be followed by a 2 day advocacy training intensive course. We are also looking at making some significant changes to the members’ benefits and training – watch this space for updates!

Over the past year we have been lucky enough to have a wide range of speakers at our conference, seminars and events. I would like to thank all of those who gave

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High Court Update from the Chief Judge

By Justice Winkelmann This column is a round-up of updates from the High Court released since our last newsletter. All updates are also sent out by email to members on receipt and are included on our website. If you have any questions please contact Melissa Perkin, Executive Director at melissa.perkin@nzbar.org.nz.

2014 Practice Note: Sentencing in the High and District Courts (12 December 2013) The Chief Judges of the High and District Courts have issued a new sentencing practice note to replace the 2003 note issued by the Chief Justice and then Chief District Court Justice Winkelmann Judge which has been revoked. The new practice note is to apply from 3 February 2014 and can be found on the Courts of New Zealand website at http://www.courtsofnz. govt.nz/business/practice-directions/2013-Sentencing-inthe-High-and-District-Courts.pdf.

The practice note applies to • All High Court sentencings • All Category 3 sentencings in the District Court where the Crown is involved • Other Category 3 sentencings in the District Court where (although the Crown is not involved) a judge requests that the prosecution make submissions at sentencing • Category 2 sentencings where a judge requests that the prosecution make submissions at sentencing.

The time frames for submission of memoranda have changed. The prosecution must now file and serve its memorandum at least 5 clear working days prior to sentencing. Defence memoranda must be served 3 clear working days prior to sentencing. Both the prosecution and defence are expected to provide a view on aggravating and mitigating factors.

The note refers to new sentences such as electronically monitored sentences and restorative justice processes and sets a time frame for s 24(2) Sentencing Act 2002 indications when agreement over facts cannot be gained.

Managing Judicial Review Proceedings (4 December 2013) A pilot for the management of judicial review proceedings has been underway in Auckland for the last several months. A judicial review list has been created and is headed by Justice Cooper, before whom all judicial reviews will be listed. This new procedure ensures that cases are efficiently readied for hearing and given appropriate priority for a hearing date.

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The list is heard on Thursdays at 9am. Once a proceeding is listed, counsel will be sent a checklist of matters to be dealt with before first call. If parties cooperate and file a joint memorandum addressing these matters, it is likely that appearances at first callover can be dispensed with. Memoranda are to be filed and served not less than 2 working days before the first call of applications for judicial review: The check list matters are: • The date for filing statement of defence • Any orders necessary in relation to production of the record of decision maker • Whether it is intended to apply for interim relief • Whether any other interlocutory applications are intended to be filed • An estimate of the duration of the hearing • Any dates on which the parties are unavailable for a fixture • The date for filing and serving the plaintiff’s affidavit evidence • The date for filing and serving the defendant’s

affidavit evidence • The date for filing and serving plaintiff’s reply

evidence • The date for provision of a common bundle of

documents • The date for filing and serving plaintiff’s submissions • The date for filing and serving defendant’s

submissions • Any other matters relevant to the proceeding Parties are expected to confer in relation to these matters and if possible to have reached agreement on the terms of a joint memorandum. If that is not possible the parties must file separate memoranda. The memoranda may be filed by fax or email transmission.

The experience to date with the pilot for managing judicial reviews has shown that the trial is working and matters are progressing with minimum cost and delay. A similar list will apply in Wellington from the beginning of 2014.

Civil and Criminal Workload (4 December 2013) For the third year in a row overall volumes of civil filings have decreased. This is an expected effect of the economic cycle and the volumes are still at higher levels than they were six years ago. However, proceedings that are filed are more complicated, often involving multiple parties. When they do get to trial they are taking on average more time to be heard.

The Court remains busy. The number of matters dealt with by adjudication at trial has increased. In the year ended 31 October 2012, 8% of matters were resolved by adjudication. In the year ended 31 October 2013, this figure rose to 9%. On an international comparison, this figure is excellent. It shows that High Court trials are still affordable and that there is good access to the courts.

Particularly pleasing, the average time to disposal for cases that proceed to a hearing has decreased by 94 days over the same period. This is a reflection of improved, targeted case management through to trial, together with a new approach to setting down.

In terms of criminal trials, a hearing can be achieved by the High Court within 12 months of charge. However, often hearings are delayed by other matters. The primary causes of delay appear to be problems with disclosure and the need to address potential mental health issues for defendants.

Judgment timeliness and the High Court (3 December 2013) During 2013 the High Court set out its expectations for the delivery of judgments and advised of an enquiry process for older judgments.

The Court has set a standard that 90% of its judgments are to be delivered within 3 months of the hearing or receipt of final submissions. The long vacation periods are not included within this time period.

At the same time the Court set in place an enquiry process for parties and counsel to ask the local court manager to inquire about the likely time of delivery when the three month period has passed. The judge is not told who has made the inquiry. The court manager will normally be able to provide the inquirer and all other parties with the likely date of delivery in writing.

Inquirers are asked to provide their status (such as plaintiff/defendant or legal representative), the names of parties, the relevant court number and the date the judgment was reserved.

In some cases the judge may advise the parties in advance that the decision is likely to take longer than three months where the case is particularly complex.

Class of Decision

The Court’s judgment delivery standard and enquiry process can be found on the Courts of New Zealand website at http://www.courtsofnz.govt.nz/from/decisions/high-courtjudgment-delivery-expectations-inquiry-process-andrecent-judgment-timeliness The Electronic Bundle Practice Note (23 October 2013) The High Court is introducing an Electronic Bundle Practice Note which can be found at http://www. courtsofnz.govt.nz/business/practice-directions. The Practice Note was developed by a working party of the Rules Committee made up of judges and representatives of the profession. It was developed as a useful innovation for managing, using and reviewing documents at trial.

It establishes a protocol for creating an electronic version of the common bundle to be used in both criminal and civil proceedings. The Practice Note is not intended to change any of the requirements of the High Court Rules or the Criminal Procedure Rules 2012, but simply provides guidance on the format of an electronic version of the common bundle. This guidance is intended to provide consistency in formatting and ensure that the electronic bundle will work on different platforms and systems.

The purpose of the Practice Note is to encourage the use of electronic bundles in cases involving significant quantities of documents. For civil proceedings, r 9.4(2) (c) of the High Court Rules will be amended from 11 November 2013 to require parties to consider whether an electronic bundle is appropriate when the parties are preparing the common bundle. The Electronic Bundle Practice Note states that an “electronic bundle will usually be appropriate when the common bundle is likely to exceed 500 pages.� Even where the common bundle is greater than 500 pages, there is no presumption that an electronic bundle should be used. The use of an electronic bundle in addition to the common bundle is up to the parties to consider and agree on, although it is expected that the use of electronic bundles will become more common as both the profession and courts move to a less-paper environment. The Practice Note sets out several issues that should be considered when considering whether to use an electronic bundle.

% Delivered Within 1 Month

% Delivered Within 3 Months

% Delivered Within 6 Months

Total Judgments Delivered

Civil

77.7%

91.6%

97.7%

1996

Criminal

96.8%

99.4%

99.9%

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Statistics for 2013 will be available in early 2014. In the meantime, the table below shows the time to judgment in the High Court, for judgments delivered in 2012.

Use of an electronic bundle is not limited to civil proceedings.

For criminal proceedings, where there are significant numbers of documentary exhibits, the parties should discuss whether an electronic bundle is appropriate.

Although the use of an electronic bundle is voluntary, I encourage the profession to make use of electronic bundles in hearings and trials.

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It is Just a Matter of Time and Other Myths

By Hon. Justice Susan Glazebrook, Judge of the Supreme Court of New Zealand This article is taken from a paper1 that elaborates on a speech prepared for the New Zealand Bar Association/ Wellington Women in Law seminar ‘Get up and Speak 2013’ held in Wellington on 15 August 2013. A similar speech was given to the New Zealand Bar Association/Canterbury Women’s Legal Association conference “Obstacles and Justice Susan Glazebrook Opportunities” held in Christchurch 22 November 2013. Our thanks to Justice Glazebrook for agreeing to our use of this article.

The Gender Gap As at the latest census by the Human Rights Commission in 2012, only some 19 per cent of partners in large law firms (10 or more partners) were women. The figures are slightly better for smaller law firms of two to five partners, but the percentage still does not reach 25 per cent. Statistics from the New Zealand Law Society show that the numbers for mid-sized firms are slightly worse than those for the large firms at just over 18 per cent. It is important to note that these figures are based on practising certificates for principals. They do not reveal equity partnership statistics, or actual ownership of the business.

The figures for Queen’s Counsel are even worse. Of the 83 Queen’s Counsel as at 1 March 2013 only 12 (14.45 per cent) were women. When the most recent round of appointments made in May 2013 is taken into account, the percentage has crept up slightly to 14.67 per cent.

The percentage of women judges in New Zealand in 2013 was just over 28 per cent. Whichever way you look at them, these figures are woeful. Most, however, remain marginally better than the percentages of female representation as directors in the top 100 companies listed on the New Zealand Stock Exchange. This figure is 14.75 per cent up from 9.32 per cent in 2010 and 8.65 per cent in 2008. The 2012 Human Rights Commission report says that, at the rate of progress over the last ten 1

years, it will be another 35 years before board room equality is achieved.

It is not just the lack of women in senior positions that is the issue. It is clear that there are financial disadvantages in being female. New Zealand has had legislation requiring equal pay in the public sector since 1960, but the first case under it was not heard until 2013.

According to a 2011 study of the New Zealand workforce conducted by Goldman Sachs, females earn 17 per cent less on average than males on a full time equivalent basis. In no industry do women earn more on average than their male counterparts. Potentially of greater concern, however, is that the gender pay gap grows as qualification levels increase. The median wage of unqualified females is roughly 86 per cent of the median wage of unqualified males. At the bachelor degree or higher level, however, the median female salary has been as little as 37 per cent of the median male salary.

So why is this situation so dire, and what can we do about it? The first step is to understand the myths that persist and indulge in some “myth busting” Myths and reality (a) It is just a matter of time The first myth is that we just have to wait and the weight of numbers will eventually cause a “trickle up” effect. Well the figures I have just given you would suggest that it is not happening very fast. In the latest round of QC appointments, only 15 per cent were women. Only 28.4 per cent of judges appointed over the five years up to September 2009 were women. Only 28.82 per cent of all appointments made since 2009 have been female. This is despite the fact that since the 1990s, there have been roughly equal numbers of women and men at our law schools.

Given that over 40 per cent of lawyers entering the profession since 1990 have been women (i.e. for over 20 years), one would have expected more movement in the figures than has been seen to date, or, at very least, that the rate of female appointments to senior positions over the last five to ten years would be starting to be evenly balanced. (b) Everything is OK before the glass ceiling The next myth is that everything goes swimmingly for women until they hit a glass ceiling at senior levels.

The full text of the article (which contains detailed references to source material) is available on our website.

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Well no, sorry. The gender gap begins from the first day of work. A study in 2010 by Statistics New Zealand found that male graduates receive on average a starting salary that is $1890 (6.5 per cent) higher than female graduates. Five years in, male graduates received significantly more than female graduates, with male graduates who left in 2005 receiving 18.2 percent more than female graduates. Differential family responsibilities cannot have had much influence on these figures, particularly as people tend to start their families later now, although it has been suggested that in the first five years of work there may be a reluctance to progress women at the same rate in terms of pay increases because of the perception that they will at some stage have children. (c) Women choose different career paths One possibility is that women go from law school to careers other than law, and that women fall out of the legal profession in greater numbers than their male counterparts. It is true that law graduates do not always pursue a legal career, but it is not clear that there is a differential between men and women in this regard.

It appears that there is an equal split between men and women in the lower levels of New Zealand’s law firms. More generally, by admission year, the figures of lawyers currently practising are not that different from the admissions percentages. Overall in 2010, 43 per cent of practising lawyers were women. The percentage had increased slightly in March 2013 to just under 45 per cent. So women make up a very significant percentage of the legal profession. The statistics suggest that if women are leaving the profession, the rates are similar to those of men leaving.

The phenomenon whereby, after three to five years in private practice, women lawyers in New Zealand leave private firms to move to a corporate or public-sector law job does, however, appear to have validity. In the 2012 Human Rights Commission survey it is noted that women comprise almost 60 per cent of in-house lawyers. In New Zealand, in-house lawyers comprise only 20 per cent of those holding practicing certificates.

It is also true that there are differences in the types of law women specialise in but the question may be whether this is really through choice or through stereotypes. For example, 70 per cent of family lawyers are women and 63 per cent of those in health law. By contrast, almost 70 per cent of those who specialise in banking and finance law are men and men make up 65 per cent of those who specialise in civil litigation and company and commercial law. (d) It is all to do with family responsibilities It has been suggested that women do not wish to advance because of child rearing responsibilities. A US study examined this argument by looking at the position

of women who do not have children and the position of women who do aspire to advancement. They found that, even from the start of their career, these women still lagged behind men. Further, the gender gap increased as their careers progressed. (e) Mentoring is the key Over recent years, there has been a real effort to mentor and develop women. However a US study of the career progression of recent MBA graduates shows that, while men and women are just as likely to receive mentoring and will both benefit from this in terms of job placement and compensation, the benefit that men gain from mentoring is significantly greater. On average, men are 93 per cent more likely in their first post-graduation job to be placed at a mid-manager level if they are mentored; the figure for women is only 56 per cent. Men who are mentored will on average be paid more than women who are mentored.

One explanation for the differential between men and women with mentors may be that men’s mentors tend to be higher placed in an organisation. The US Study found that women with high profile mentors were promoted at the same rate as men with the same level mentors, though women did receive less compensation. (f) Women should network more The Old Boys Club is certainly alive and well. Women have been fighting back with their own networks. These can be valuable (and very supportive) but not at the expense of keeping up general cross-gender networks.

It has even been suggested by one commentator that initiatives aimed at women are doing nothing to advance gender balance The reality, she says, is that the lack of balance is usually because of the mind sets and cultures introduced and maintained by the majority currently in power”. Unless these prevailing views are confronted, in her view women’s clubs will do little to reduce gender inequality in any material way. (g) It is all about merit Let us look at the issue of merit through a medium divorced from the law: orchestras. Clearly you want the best musicians for an orchestra, right? You are auditioning for talent. Orchestras, in the past, have however, traditionally been predominantly male.

Comments had been made to justify this by prominent conductors: for example women have “smaller techniques” (whatever that means).

In the 1970s, there were around 10 per cent female members of US orchestras. This had increased to 35 per cent in the mid-1990s. Why the increase? The acquisition of “larger techniques” by women musicians you venture? Not at all - the increase has been attributed to the introduction of musicians auditioning

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behind a screen so that the gender of the players was unknown. This story shows that our perceptions of merit can be influenced by our subconscious biases.

Similar responses were received from both female and male student participants, showing that gender stereotypes are internalized by both sexes.

Our views of merit can also be influenced by our views of what qualities a job needs and our stereotypes of male and female characteristics. A key finding of research conducted in 2007 was that people associate men and women with different traits and link men with more of the traits that connote leadership (at least the oldfashioned view of leadership). Women are associated with communal qualities, which convey a concern for the compassionate treatment of others. By contrast, men are associated with qualities like assertion and control.

Perceptions of what makes a good leader are changing.

The irony is that the so called ‘female characteristics’ that have often been viewed in a negative light are now understood to be highly beneficial in leadership roles.

It has been suggested that women are more likely than men to bring a more complete range of the qualities needed by modern leaders, including self-awareness, emotional attainment, humility and authenticity. This is a reflection of how men have adapted in response to a culture that judges them by their ability to project strength and confidence.

Women cannot win, however. If they show more aggressive traits, they can suffer prejudice because they are acting outside the traditional role. One study undertaken at Colombia Business School had students scrutinise two CV’s: one for Howard Roizen and one for Heidi Roizen. The CV showed that Howard/Heidi had worked for Apple, launched his/her own software company and been a partner in a venture capital firm.

He/she was outgoing, an incredible networker (Bill Gates was a personal friend) and described by colleagues as a “catalyst” and “captain of industry”. The CV’s were exactly the same, apart from the name.

When asked to judge Howard, the students judged him to be effective and likeable. When it came to Heidi, although they also judged her competent, they thought her aggressive and would not want to work with her.

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It is important, however, that decision-makers identify and rely on the strengths that particular candidates actually possess (whatever their gender), rather than relying on stereotypes. (h) Women need to employ the right strategies to succeed A couple of years ago, I spoke at a seminar for young lawyers and one of the other speakers spoke of the “good girl” syndrome whereby young women think that just performing well is all that matters. The speaker told the participants that they had to do more self-promotion. Certainly that was good advice, but the more I think about it, the more I have been asking myself why just doing a good job is not enough?

Surely those looking for candidates to promote should search out talent and quality and not be taken in by empty hype?

In any event, a recent US study found that high potential women and men employ very similar tactics to get ahead. The strategies just paid off for men more than they did for women in terms of pay and advancement.

As demonstrated by studies such as the Howard/Heidi Roizen experiment discussed above, self-promotion may even prejudice career progression. Until gender stereotypes and unconscious biases are overcome, women will struggle to make it to the top, regardless of the strategies they employ. (i) We are doing you a favour Ensuring gender quality in the work place is far from providing a favour to the female population. To the contrary, it is economic common sense. As was noted in an article in The Economist, the increase in female employment in the modern developed world has been the main driving force of growth in the past couple of decades. The surge in female employment has also contributed more to global GDP growth than new technology or the new global powers, China and India.

A number of studies now also confirm that companies with a gender balance perform better. Where there is a critical mass of more than two or three women on a board, improvements are seen in the ethical practice and accountability, scrutiny and unity, and transparency of a company. Companies with high levels of gender diversity also outperform others in their sector in terms of stock price growth, return on equity and operating result. Moreover there is also an ethical case for diverse workplaces, based on our commitment to human rights, as reflected in the right to be free from discrimination contained in the New Zealand Bill of Rights 1990, the Human Rights Act 1993 and in a number of international instruments to which New Zealand is a signatory. (j) Women do not help other women get ahead in their careers The argument here is that those few women who make it to the top view other upcoming women as a threat and may even actively keep them down to ensure that their own position is not challenged. A recent US study found that this, as a general phenomenon, was not correct. Women are actually more likely than their male counterparts to assist the development of others, especially other females. I suggest that this myth may be attributable to unrealistic expectations of how much even those women who are in senior positions can do to close the gender gap without structural changes.

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(k) Prejudice is a thing of the past People may now be more wary of expressing prejudice.

They may even think they have none. The Harvard Implicit Association Testing tests, however, show that it is alive and well and translates into actual discrimination and stereotyping. Such prejudice is in many ways more difficult to combat as by definition it is hidden and unconscious.

What can be done?

So what can we do? Women can continue to work on overcoming hesitation at seizing opportunities or at putting ourselves forward. We can do more self-promotion (subject to the qualification that this might backfire). But at the centre of the issue is a disproportionate number of men in senior positions.

Accordingly, any real change will require those males at the top to commit to ensuring that the playing field is levelled. And it will be our task to encourage, cajole, persuade and finally to insist that they do so.

It has been suggested that a number of steps should be taken within organisations to facilitate more diversity at the higher levels of employment. Avivah Wittenburg-Cox2 has suggested a four-part strategy for achieving gender balance in businesses. The first phase is to carry out a ‘gender audit’ to assess the gender balance within the firm, compare it with other similar organisations and assess the impact that this has on the firm’s image. Secondly, a firm must undergo an ‘awareness phase’ which requires bringing home the importance of gender balance issues to those in leadership positions.

The third of Wittenburg’s phases is the ‘alignment phase’ where awareness is translated into the processes systems of the firm. She suggests a number of techniques for doing this, including changing recruitment tools, changing the expectation of working long hours to using other measures of productivity, promoting alternative career paths and establishing family-friendly human resource practices such as flexi-time job sharing, part time work, shorter hours, telecommuting, term-time working, and in some cases on-site child care. Wittenburg’s final stage is ‘sustainability’. True change can take decades and momentum must be maintained. It is a matter of trialling strategies, testing results and ensuring that there is an open dialogue within the institution where experiences can be shared.

A recent World Bank YouTube campaign posed the question “What can I do?” The list given in that video includes “discuss, debate, yell, speak, fight, vote, demand, change.” Let’s do it.

Avivah Wittenburg-Cox How Women Mean Business (John Wiley & Sons Ltd, West Sussex, 2010)

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The Challenges of Mentally Impaired Offenders

By Professor Warren Brookbanks LLM BD* The concept of mental impairment is by now engrained in the nomenclature around forensic psychiatry and law in New Zealand. It is a threshold term which, although undefined in statute, signifies the minimum mental health status required to trigger various procedures involving mentally impaired offenders. These include the process for determining Professor Warren Brookbanks unfitness to stand trial, and the disposition of offenders made subject to a hospital order upon conviction pursuant to s34 of the Criminal Procedure (Mentally Impaired Persons) Act 2003. At the present time in New Zealand the defence of criminal non-responsibility, defined in s23 Crimes Act 1961, stands alone in employing the language of “insanity” – a term much aligned by professionals and poorly understood in popular discourse.

In reality, however, the discussion of mental impairment as it intersects with criminal law and procedure, engages a much broader debate than simply insanity and unfitness to stand trial. Increasingly, it includes such issues as the proper scope of the defence of automatism, the related question of the legal status of “sexomnia”, the claims of diminished responsibility and the role of neuroscience in determining the parameters of criminal responsibility, to name a few. Increasingly, questions of the fair and responsible management of mentally impaired offenders are matters that are of concern to policy- makers, judges, legal professionals and academics in many jurisdictions, as they grapple with perennial questions of how best to characterise exculpatory mental impairment, and how to manage the risk presented by dangerous mentally impaired offenders. But perhaps the greatest contemporary challenge has been how to accommodate judicial findings of mental impairment, relevant to the determination of unfitness to stand trial and sentencing, with the insistent demands of human rights law and the legalisation of the rights of disabled persons.

For these and other reasons in recent years a number

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of Commonwealth jurisdictions have revisited laws on insanity and unfitness to plead, and in many cases, instituted major changes to both the definitions and operational criteria. In New Zealand legislative changes around unfitness to stand trial effected in 2003 have generated a significant body of case law, which is largely concerned with interpreting and applying the statutory procedures for determining unfitness.

Unfitness to plead is now the dominant medico/legal consideration in criminal trials, far exceeding insanity in its importance as a substantive trial or pre-trial issue.

Yet Scotland, England, New Zealand and Canada have all reviewed their rules governing legal insanity which, despite its lower profile, continues to excite speculation both as to its utility and its scope of operation.

England is currently in the process of reviewing the law on automatism and unfitness to stand trial, and has made some far-reaching recommendations in both domains. While Canada has, in recent years, amended its statutory law governing the Mental Disorder Defence (formerly the insanity defence), significant change has not been forthcoming in New Zealand.

This would seem to be largely because of the Law Commission’s conclusion that although the problems with the insanity defence are “not insignificant”, in light of available reform options the problems are not of sufficient seriousness to warrant a major exercise of law reform (see Law Commission, Mental Impairment Decision-making and the Insanity Defence Report 120, Wellington, December 2010, at 51). While the New Zealand Law Commission has concluded that the insanity defence is working well enough and does not need amendment, English law reformers have grasped this particular nettle with a recommendation for a new defence characterised as “not guilty due to a recognised medical condition.” (See Law Commission Criminal Liability: Insanity and Automatism - a Discussion Paper (Law Commission, London 23 July 2013). The defence would be available where an accused person was incapable of complying with the relevant law because of a recognised medical condition. As applied to automatism the new defence aims to abolish the troublesome and controversial distinction between internal and external causes and to get rid of the now arcane and unhelpful expression “disease of the mind,” still exclusively the province of the insanity defence.

Perhaps paradoxically, one driver of changes around the defence of automatism has been the difficulties presented by sleep disorders (parasomnias), in

particular, the controversial case of sexomnia. This is a descriptor for a new parasomnia characterised by people initiating (illicit) sexual behaviours while asleep.

The relatively recent identification of this phenomenon in Canada and England, and more recently in New Zealand (see R v T DC Auckland CRI- 2011-090003360, 8 March 2013), has raised serious questions concerning the proper legal response, in particular, whether it should be treated as a cause of “non-insane automatism” or whether it should be branded as the equivalent to insanity where there is a risk of recurrence of the behaviour. This raises difficult questions of legal policy, especially given that sleep is itself a normal condition, despite its sometimes aberrational expression.

Another issue, long avoided in New Zealand, is

whether we ought to have a defence of diminished responsibility, as do England, a number of Australian states, and some other Commonwealth countries.

Arguably, the demise of the defence of provocation, and the binary rigidity of the not criminally responsible/ criminally responsible distinction, have highlighted a distinct gap in available palliative defences for homicide that deserves further consideration.

Recent research around the assessment of claims of lack of impulse control and the unhelpful nature of the irresistible/unresisted distinction have led some academic researchers to advocate for a new irresistible impulse defence based on the accused’s total incapacity to resist imperious impulses to commit criminal acts. Such claims are increasingly being supported by the insights of neuroscientific research which tend to confirm that increased propensities for impulsive and violent behaviour may be associated with particular types of brain lesions (see e.g. S Penney “Irresistible Impulse and the Mental Disorder Defence: The Criminal Code, the Charter and the Neuroscience of Control” (2013) 60 Criminal Law Quarterly 207). These insights cannot be ignored in a criminal justice system that prides itself in fairness and substantive due process.

The law around mental impairment and criminal responsibility is in a constant state of flux and needs to be under continual assessment and review. This will ensure that important statutory definitions reflect modern scientific insights and that procedures for the assessment, disposition and care of mentally impaired offenders are responsive to legitimate human rights concerns and changing perceptions of risk assessment and management. *Warren Brookbanks is Professor of Law at the University of Auckland. He has an international reputation in the fields of criminal law, mental health law and therapeutic jurisprudence.

He is co-author of the leading text Simester and Brookbanks, Principles of Criminal Law, and co-author of Bell and Brookbanks Mental Health Law in New Zealand. In 2011 Warren published Competencies of Trial: Fitness to Plead in New Zealand.

Email: wj.brookbanks@auckland.ac.nz

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The Non-Justiciability Principle in Religious Disputes

By Richard Scott Pidgeon*

In Shergill & Ors v Khaira [2012] EWCA Civ 983 the Court of Appeal of England and Wales declined to determine which of the competing parties had the right to appoint the successor to the Holy Saint of two Sikh gurdwaras (places of worship). Mummery LJ in the leading judgment held that “non-justiciability is a salutary principle of judicial self-restraint.

Richard Pidgeon It ensures that judges do not overreach themselves and that they abstain from deciding questions that are neither appropriate for, nor capable of decision by, judicial method”.

The non-justiciability principle was also a focus of a 260 page judgment of the House of Lords 109 years ago in General Assembly of Free Church of Scotland v Lord Overtoun [1904] AC 515.

The Court of Appeal (in Khaira) declined permission to appeal to the Supreme Court 3 months after delivering its 17 July 2012 judgment, but the Supreme Court granted permission on 4 February 2013, with the argument to be heard (date unknown).

The traditional view on non-justiciability is expressed for example by Barker J in Cecil v Rasmussen (HC Auckland A1269/83, 9 December 1983) concerning a Cook Islands faith community on the verge of a schism. At page 7 of Cecil Barker J sated: “The law is fairly clear; in ecclesiastical disputes of this nature, the Court must not endeavour to interfere; nor can it decide theological or liturgical differences; it must decide the matter purely on a legal basis.”

There is no “one size fits all” rule to apply in this situation. A huge variation in ecclesiological, structural and doctrinal aspects exist as between one religious dispute and another. The procedure used by legal counsel to bring the matter to trial impacts the extent

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of judicial discretion. The factual matrix will also be highly relevant. There is also a need for care in applying overseas case law automatically, for as O’Regan J noted in Palu v The Conference of the Methodist Church of New Zealand (HC, Auckland CIV 2001-404-1870, 23 July 2003 at [303] there may be different constitutional frameworks (such as an established church in England and Wales).

As Ivor L M Richardson (as he then was) argued at p 62 of his monograph Religion and the Law, (Butterworths, Wellington 1962) the courts would not intervene in a schismatic dispute if the “organisation has its own ecclesiastical law and judicial machinery for the determination of the controversy”, and for a dispute amongst the members of a local congregation the “method of settlement will depend on the constitution and rules of the national organisation” (which might be hierarchical, synodical or congregational – e.g.: Roman Catholic/ Anglican; Presbyterian/ Methodist or Baptist/ Associated Churches of Christ respectively).

Many church organisations (such as the Assemblies of God movement) use “general” legislation, such as the Charitable Trusts Act 1957 and the Incorporated Societies Act 1908. This appears to have has encouraged judges to treat religious groups as another voluntary association, leading to a lessened deference to the non-justiciability principle.

One of the most effective inhibitors to litigation is cost, and one related reason for lower levels of litigation (which should not be removed) is the inability for a pool of congregants to obtain legal aid for litigation. Section 12(4) of the Legal Services Act 2011 prohibits the granting of legal aid to groups or people or representatives of such a group with a common.

Early rejection of claims (such as by striking out) would send a signal that the better fora for resolution is within the relevant church tribunals (if available within the denomination) or in alternative dispute resolution (where the usual benefits of confidentiality, expeditious hearing, reduced costs, tailored prehearing directions and the ability to incorporate matters which are strictly incapable of being introduced into a courtroom for procedural, evidential, or reasons of justiciability).

congregation of St Paul’s Church is accepted. The links between the congregation members, while consensual, are not contractual in nature. This can be distinguished from the line of authority known as the “club cases”.

[158] As part of the issue of justiciability, the correctness or otherwise of the governing body’s actions in this dispute in excluding the plaintiffs from the premises and expelling the relevant plaintiffs from the Session and other meetings, involve questions of judgement about the propriety of the conduct of various people, as judged from a Christian perspective. Judgments in such an area necessarily involve elements of faith, doctrine beliefs and standards. Incursion by the Courts into such areas has long been recognised to be undesirable.”

A method of dispute resolution which sees too little use is alternative dispute resolution, being essentially mediation or arbitration. The use of ADR would be in keeping with the Pauline imperative in 1 Cor 6:6 to avoid civil courts.

Lord Justice Mummery was correct in Khaira to strike out the claim, confirming the defendants’ position: “[5] The basis of the defendants’ strike out application is that the contested claim to be the “successor” unavoidably turns on matters of religious faith, doctrine and practice on which the parties hold differing inward beliefs and allegiances.

A secular court will not adjudicate on the truth of disputed tenets of religious belief and faith, or on the correctness of religious practices: those questions are non-justiciable, because they are neither questions of law nor are they factual issues capable of proof in court by admissible evidence. Judicial method is equipped to deal in hard facts objectively ascertainable, directly or by inference, from probative evidence: it is not equipped to determine the truth, accuracy or sincerity of subjective religious beliefs about doctrine and practice.”

Justice Beattie (as he was) in Gregory v Bishop of Waiapu [1975] 1 NZLR 705 at 708 put it this way, “Having regard to the nature of these powers [of the Church of England in New Zealand] and rights, the Courts in my opinion must acknowledge that they will be chary of intervening in church matters unless there are valid and strong reasons for doing so.”

The line (on non-justiciability) should be held in a similarly principled way as in Khaira to discourage excessive litigation by religious groups in New Zealand courts. *Richard Pidgeon is a barrister who acts in matters involving family law, equitable and urgent relief, property and company litigation. He also specialises in ecclesiastical law. Prior to joining the Bar he was a generalist litigator in several Auckland firms and was a partner at Sinisa Pidgeon Law and Pidgeon Law. Richard writes regularly in the NZLJ Charities edition. Richard is based at Wyland Walker House. For contact details see HYPERLINK “http://www.pidgeon.co.nz” www.pidgeon.co.nz.

Associate Judge Gendall (as he then was) in a lengthy and well-researched judgment applied the non-justiciability principle in a successful strike-out application in in Brady v Presbyterian Church of Aotearoa New Zealand [2013] NZHC 864 24 April 2013 (which itself referred to Marshall v National Spiritual Assembly of the Bahá’is of New Zealand Inc [2003] 2 NZLR 205 (HC)). In Brady Associate Judge Gendall held: “[157] The issues here are not justiciable.

The submission that the Court ought not to embark upon adjudicating on matters which are in dispute between the members of the

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eDiscovery – Managing More Efficiently

By Andrew King*

Andrew King

Andrew King’s previous article discussed the requirement of the High Court Rules for cost-effective and proportionate discovery processes. This article takes a closer look at how the increasing challenges of eDiscovery can be managed more efficiently by investing more time planning at an early stage and through the use of technology.

The exponential growth in the sources and volumes of electronic information is making the discovery process more challenging. There is a greater intersection between the law and technology with eDiscovery an unavoidable part of any litigation or investigation.

For some, eDiscovery has simply meant turning documents into an electronic format. Managing electronic information in the same way as we did paper documents, does not ensure that discovery is proportionate and cost effective.

Information explosion Electronically stored information (ESI) has expanded, not reduced, the volume of material which needs to be considered for discovery. Technology allows communication on a wider basis. Conversations that in the past were conducted by telephone or informal meeting with little or no documentary trail now can result in an email trail between multiple people in multiple locations with multiple attachments. The obvious result of this is that where in the past a discovery file might be reasonably limited, files can now frequently consist of ESI numbering in the thousands of individual “documents” or files.

ESI can be gathered from a variety of places and formats. Many documents are never printed. Cell phone records showing a pattern of calls between individuals may be important. Relevant texts, tweets, blogs and even Facebook postings might be available. One of the most important sources is metadata. This is data about a file which is not seen on the face of a document but is embedded. It can identify when a document was created, by whom and when it was accessed or edited.

The entire eDiscovery process continues to become more complex through these evolving issues. These challenges are increased by the greater pressures from both the courts and clients to ensure discovery is proportionate and cost effective. With the increasing volumes of information it is becoming increasingly difficult to get to the key information quickly and cost effectively, especially if traditional practices are used to address eDiscovery.

Upfront investment – early planning is essential Greater investment earlier in the proceeding will help identify the most effective approach that is tailored to suit the requirements of the matter. There is an expectation of more

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front loading of work under the High Court discovery rules, but this work will pay dividends later in the proceeding.

All matters are different, so it is important to understand your specific requirements, together with devising the most effective strategy to identify, collect, review and produce the information. Even small matters that appear straight forward can often become complicated and costly due to not spending time at the outset in planning an appropriate strategy for the matter.

The court now expects parties to know more about their information at an earlier stage to enable them to assess proportionality on all matters. Parties are now expected to identify: • who are the key individuals in the dispute; • what parties have and where it is located; • what is important to the matter in dispute; and • how this information can be provided in a method that is accurate, efficient, and cost-effective.

Identification and collecting information from the client The process of collecting information from a client may have in the past simply involved a request to the client to provide all ‘relevant’ information. More attention is now required to what is being sought and the method of collecting the information from the client.

Prior to commencing a dialogue with opposing counsel it is beneficial to be more informed about your client’s information. This will assist with working through the discovery checklist and the scope of discovery.

The important questions are what might a client have and where is it? If this information is difficult to identify, then the cost of locating and retrieving the information will continue to escalate. An eDiscovery questionnaire or checklist to work through with the client and their IT representatives can be beneficial in finding out about the information held by the organisation. Any problems identified may be important in agreeing the scope and reasonableness of the discovery exercise.

The identification and collection process may require forensic expertise, although in most instances a carefully planned and documented approach with the aid of a questionnaire may be all that is required.

Transforming the way we review documents Document review is still the largest cost of any discovery exercise. As the document volumes increase solely relying on humans to ‘eye ball’ every document is no longer possible. The paper based model required juniors to spend hours investigating and collating material. Much of this work can now be done more effectively by combining eDiscovery tools and strategic advice on cost effective practices.

Early Case Assessment (ECA) tools can assist early in the process. The ECA software will provide lawyers with an informed position (by looking at documents and associated metadata) as to who may be the key people and identify important date periods. The software will provide information

about who may have been communicating and assist in identifying if there are any gaps in the data collected. ECA tools can be beneficial when looking to agree the scope of discovery with other parties.

On many occasions the volume of documents can be reduced by using culling techniques to filter the information.

This may include applying specific date ranges, prioritising key individuals or if appropriate using search terms to isolate important information.

Problems with keyword searches Traditionally lawyers have turned to keyword searches in an attempt to reduce the document volumes. The reality is that keyword searches frequently do not produce the results expected, and more importantly parties are often unaware of the limitations of keyword searches.

Keywords create a black or white scenario – a document is either in or out – because a document either contains the selected word or it doesn’t. Running search terms across a set of documents may reduce the volume of documents to review, but it could mean that many relevant documents are missed if the keyword does not result in a ‘hit’ in a document.

Alternatively the search terms may produce many irrelevant documents that may have different meanings to that intended.

Too often the search terms are produced early in the process and without looking at the documents to assess the viability of the terms. With all search terms it is essential to sample and test the terms to ensure they are producing the results you intended, prior to commencing the document review.

Embracing more sophisticated review options One of the main costs associated with the document review is having to review irrelevant or redundant information. More effective methods have developed that can significantly improve the effectiveness of the document review in terms of speed, accuracy and cost. Some of these options include: • Predictive coding - technology that analyses the decisions of a human review of a sample set of documents.

The software then prioritises or ranks the remainder of documents based on the decisions made on the sample documents. The documents can then be reviewed by lawyers, usually identifying the key documents first.

• Concept searching is a search which attempts to match results with the query conceptually, rather than just by identity or similarity of words. The method searches files based not on keywords, but on the subject matter of the document, paragraph, or sentence. Concept searching is different to keyword searching which requires a particular word to be located in the document. Concept searching adds additional information to the very basic keywords, as it evaluates both words and the context in which they appear.

• Clustering technology - the grouping of documents by identifying conceptually alike documents. The technology breaks the documents up into groups of similar documents (e.g. by similar concept, content or subject). The technology is calculated through the mathematical relationship between the text content of the documents.

• Email threading - technology that allows the identification of related emails in a thread and can identify the email “endpoint” and further unique emails in a thread. As the

majority of information for discovery purposes is currently email, email threading technology is essential to respond to the issues presented by multiple email chains. By identifying the endpoint of the email chain, redundant emails do not have to be reviewed, as the same emails can all be reviewed at the same time.

• Near duplicate technology - that identifies documents that have similar content, but are not exact duplicates.

The near duplicate technology groups all of the near duplicates together so they can be reviewed at the same time, which allows the reviewer to quickly focus on the differences and move through the documents more quickly and accurately.

All of these processes are expressly identified in the checklist of the High Court discovery rules as options to consider.

With all of these techniques (including traditional culling by keyword or date ranges), it is important to have an iterative process that involves testing and sampling of the approach.

Benefits of sophisticated review options By using these techniques to either group similar documents together or prioritise documents, lawyers can expedite the document review exercise. These tools can significantly accelerate the document review exercise when compared to a more traditional linear review process that would usually involve reviewing ‘document by document’.

Utilising these options will reduce the volume of documents that require lawyers to review. At the same time the technology will allow irrelevant material to be quickly isolated so the most important information can be looked at first.

Finding out more The eDiscovery process does present the legal profession with new challenges and requires new skills. These challenges require practitioners to have a greater grasp of electronic and technology issues. If electronic discovery is not conducted properly it can result in unnecessary and wasted costs.

To reduce the disproportionate costs of the discovery process and ensure it is cost-effective from both the client and the lawyer’s perspective, it is important to make better use of technology to get to the information that matters most. Even if lawyers are not currently using these tools and practices, it is critical that they familiarise themselves with these processes.

The 2nd Annual New Zealand eDiscovery Conference will be held in Auckland on March 19th, 2014. It has been designed to provide important knowledge for anyone who is involved in litigation, or those that want to know more about best practices to manage electronic information. For more information, see http://www.e-discovery.co.nz/2ndannual-new-zealand-ediscovery-conference/ *Andrew King is a litigation support consultant at E-Discovery Consulting (www.e-discovery.co.nz), where he advises on strategies and tools to simplify the discovery process including providing independent eDiscovery software advice. Andrew can be contacted on 027 247 2011 or andrew.king@e-discovery.co.nz

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Lend Me Your Ears!

Capturing Your Listeners in the Courtroom

By Meredith Caisley*

In my teaching role, I have listened to generations of intelligent, motivated young people proclaiming the legal profession as their career goal. Proud parents are all too willing to finance them through the arduous four years’ tertiary study (or five years for a conjoint degree), and then on through Professional Legal Studies for another 13 weeks of full-time study. They then struggle to gain employment in a law firm, or any firm – a highly competitive process today. The end product of this overwhelming time, energy and financial sacrifice is a thoroughly well disciplined, well informed young citizen invaluable to the New Zealand legal world. They are trained to write the longest sentences in the professional world, and communicate admirable linguistic detail to other legal specialists.

However - lawyers are trained in writing but they are not trained in speaking Imagine a singer trained in the writing and reading of musical scores, but not trained to sing; a pilot who has read all the manuals, passed all his aviation theory tests, but not actually flown an aeroplane. The very term singer infers a person who can use their vocal instrument melodiously so that an audience is uplifted by the music. The term pilot infers a person who can enter the cockpit and use the instruments on the panel in such a way that their passengers are lifted from the tarmac to soar into the air.

(384 – 322BC) with his treatise “The Art of Rhetoric” who laid the foundations of forensic oratory which have been the primary influence for the next 2,000 years. In Athenian times a man’s rhetorical ability determined his success and influence. Couple this with the NZ legal system, which is ultimately founded on medieval English custom, and we can see that success in the 21st century courtroom is strongly linked to the rhetorical style of the Greeks.

Pericles Funeral Oration on 50 Drachmai 1955 Banknote from Greece

It’s the singer not the song In the 20th century there was a surge of research into the understanding and use of the vocal instrument that professional singers and speakers need to master to be fully effective. Vocal theorists such as Cecily Berry, Kristen Linklater and Patsy Rodenberg have helped us understand the complexities of voice production and taught us how to use our voices for greater effect.

Remember, people are not born great orators, they are trained

Comparably, the term lawyer infers a person who can speak at the bar in such a way that a judge or jury is captured and persuaded of the truth of the scenario presented to them. Many, many hours will have gone into the preparation of arguments and accumulation of evidence so the material to be communicated will be of the highest quality, but the method and manner of that communication lacks impact simply because the speaker has little idea of the skills of oracy.

Once lawyers are taught the intricacies of voice and speech production they can achieve whatever tones and accents they need for a diversity of performance. No longer will they be restricted by “a quiet voice” or “a monotonous voice”, but instead learn how to project or modulate it to suit different occasions and purposes.

Much has been written about “writing a speech” and it is said that Pericles (495 – 429 BC), admired for his passionate, idealistic style and his persuasiveness during the Golden age of Greece, was the first to deliver a written speech in court. Yet it was Aristotle

It’s not what you say, it’s how you say it A litigator needs training in performance skills. This is where it is essential to close the books. Let go of training manuals, and turn to feedback from a speech coach.

Volumes of literature have been written on how to deliver

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speeches effectively, but the theory is entirely different from the practice. Ralph Waldo Emerson once said “Speech is power: Speech is to persuade, to convert, to compel”. To achieve this, a speaker needs to be trained to establish credibility through the use of proxemics, kinesics and paralanguage. Practice is what turns a good lawyer into a great speaker.

• Credibility: This is the perception of the audience that what the speaker has to say is true and accurate.

Credibility doesn’t just happen; it has to be earned. Does the speaker appear to be competent, trustworthy and likable? Are they sincere, concerned for their listeners, self-confident and poised? Do they have the experience and special knowledge of the subject?

• Proxemics: A good speaker manages space and uses movement to connect with their listeners. This varies enormously according to the speaking venue which may be an intimate interview room, a large impersonal auditorium, or the curved aesthetic contours of an arena. According to the anthropologist Edward T Hall, a speaker can select from four “distance zones” in order to make that critical connection with members of their audience.

• Kinesics: Body language is now recognised as the major factor in interpersonal communication. It is said that the effectiveness of any spoken communication depends 7% on verbal ability, 10% on vocal variety, and an overwhelming 83% on visual impact. Michel de Montaign, the 16th century French Renaissence scholar, said “There is no gesture that does not speak.”

Christabel Burniston, the late Director of the English Speaking Board, reminded us that we are our own best visual aid.

• Paralanguage: A speaker gives meaning to words through their use of the voice. This is the critical difference between written and spoken language. A reader can decode words printed on a page quite differently from a listener decoding the same words spoken aloud. A speaker needs to be trained in pronunciation, articulation and enunciation and then be able to deliver those words in a meaningful, artistic, memorable style.

The skilled forensic orator is one who has mastered these practical elements of performance and can demonstrate them confidently and appropriately for the occasion.

Remember, people are not born great orators, they are trained.

Meredith Caisley is the Director of Caisley Communication Consultancy, in Auckland. She has many years of experience in Professional Training & Coaching. She is a Registered Speech Teacher formerly lecturing at the Auckland University of Technology where she specialised in Business Communication. She has also worked effectively with lawyers, and in particular barristers.

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A Brief Guide to: Using the NZ Bar Website – Issue 1

By Lisa Mills*

The NZBA website is a tool which we would like to encourage members to utilise to its full capacity. In order to help all members to become familiar and comfortable with updating their profile, accessing the members only area and booking events online we will over the next few newsletters introduce a series of easy to follow steps to enable you to do this.

What is on the website: The NZ Bar website is available at HYPERLINK “http:// www.nzbar.org.nz” www.nzbar.org.nz. The main areas of interest for members are: 1. General information about the NZBA, the services it offers members including member benefit partners, mentoring, CPD requirements, subscription types and fees. Some of this information is available to the general public and some information is only able to be accessed after you login as a member.

2. Information about NZBA events (and relevant events held by other organisations) and online booking for NZBA events is available – to members and nonmembers (where applicable).

3. The “Find a Barrister” and “Find a Junior Barrister” listings – this is free advertising!

Updating your details and listing yourself publically on the NZBA “Find a Barrister” listing • First choose – Login or register from the home page of the website www.nzbar.org.nz

Click on login or register

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• If you are a member use Please Login or Sign Up (rather than New User SignUp) • Type in your email address and password o If you do not know your password choose I have forgotten my password and a system generated password will be sent to you. o Use this new password to login. Once you have done so you will immediately be asked to change this to a password of your choice. o Please note that the email address that we have on record for you will be the email address that you

need to use to login. If this has changed either use the link My email address has changed or contact nzbar@ nzbar.org.nz with your change of email details.

• The system now defaults back to the home page with one difference. Where you choose login it will now have a welcome message to you. Click on your Member dashboard

Click on Member Dashboard

• All your details are available in their categories (down the left side of the screen). Click on each one and select or edit as appropriate.

• Upload a photo or CV if you choose (hint – if you have a LinkedIn profile you might like to ensure both of these profiles match) • Privacy - this is the area that allows you to control and edit your website listing and what information can be seen about you. The default privacy setting is “none” so if you want people to be able to find you on the ‘Find a Barrister’ listing you need to adjust these settings to either public or members only. If you choose members only then you are assuming members will login to look at your details and this is not necessarily the case. I advise you to choose public for at least your postal address and business contact number.

Click on the appropriate headings to view and update your details.

To publish details ensure the Privacy settings are either set to Members only or Public – depending on your preference.

You can choose a variety of privacy settings if you do not want some of your information public.

Choose update to select your settings

If you have returned a Consent to disclosure form to the NZBA office, you will already have all of this done for you.

But this is a perfect time to check your details are up to date and begin familiarising yourself with the website so you know what to do if you need to change anything on your profile.

Next issue: Registering for events online and keeping CPD records.

If you have any problems please do not hesitate to contact me by phone (9-3 weekdays) or by email nzbar@ nzbar.org.nz

* Lisa Mills is the NZBA administrator. Please contact her for any membership or event enquiries at nzbar@nzbar.org.nz

21

The New Zealand Bar Association/Young Lawyers’ Committee Mooting Competition 2013

By Elizabeth Chan* In what circumstances is it reasonable to expect naked photographs of yourself uploaded onto Facebook to remain private? This was the question grappled with by the finalists of the inaugural New Zealand Bar Association (NZBA)/ Young Lawyers’ Committee (YLC) Mooting Competition 2013. The moot final took place on Thursday 24 October at the Old High Court before a panel of three Supreme Court Judges: the Hon. Justice William Young, Hon. Justice Glazebrook and Hon. Justice Arnold.

The finalists were Sean Conway and Matt Dodd, judges’ clerks at the High Court, as counsel for the appellant; and Edward Greig and Hugh McCaffrey, solicitors at Bell Gully, as counsel for the respondent. It was a close and exciting match, with the respondents being declared the champions of the mooting competition at a prizegiving ceremony hosted at Thorndon Chambers. When announcing the result, Justice William Young praised the high standard of the advocacy, emphasising that he was “heartened” for the future of the legal profession.

The moot final and prizegiving ceremony brought the NZBA/YLC Mooting Competition to a successful conclusion. The mooting competition took place over two months, beginning in early September, when the participants received the moot problem and attended a training session run by Karen Clark QC and Matthew Smith of Thorndon Chambers. There were three rounds of moots in the competition.

Jamie Grant, the Convenor of the YLC, explained that the YLC had decided to organise a mooting

competition to give young lawyers the opportunity to practise the craft of advocacy and to appear before real judges. He also thanked the many organisations and individuals who had supported the competition. These organisations and individuals included: the NZBA as the sponsor of the competition, Thorndon Chambers for hosting the prizegiving ceremony, the Wellington High Court and the Supreme Court for providing court rooms for the moots, the Wellington High Court library for lending the participants robes, Bell Gully for assisting with developing competition resources, the Institute of Professional Legal Studies for offering its premises for use by the participants, and Chris Ryan from Council Brief as the official photographer for the moot final and prizegiving ceremony. At the prizegiving, Tim Castle spoke on behalf of the NZBA, and David Goddard QC spoke on behalf of Thorndon Chambers.

As the co-ordinator of the mooting competition, I am thrilled with its success. This competition has involved the work of many people. I am grateful to my organising committee of 10 people, the 24 participants in the competition, the 21 judges who adjudicated the moots, six barrister/lawyer mentors who coached the semi-finalist and finalist teams, five registrars and many others who provided us with advice in the design of this competition.

The mooting competition has brought together many different people in the legal profession, including young lawyers, barristers, judges and other lawyers.

The YLC would love to see the mooting competition become a regular fixture of the Wellington young lawyers’ calendar and to encourage the expansion of the competition to other regions in New Zealand. The YLC is especially grateful to the NZBA for its encouragement and support.

From left to right: Hugh McCaffrey, Edward Greig, Hon. Justice Glazebrook, Hon. Justice William Young, Hon. Justice Arnold, Sean Conway, Matt Dodd and Elizabeth Chan

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* Elizabeth Chan was the coordinator of the NZBA/YLC Mooting Competition 2013. She also works as a judge’s clerk at the Supreme Court of New Zealand. **The moot judgment, authored by Tim Cochrane, is available online from the “NZ Bar Association/YLC Mooting Competition Final 2013” page at www.younglawyers.co.nz.

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23

20/11/2013 04:41:28 PM

Product Review: CaseBase Pacific Case Citator

By Jacqui Thompson* I have to admit to quite enjoying evaluating databases. Sad but true. So when I was offered the chance to review the upgraded CaseBase Pacific Case Citator database, I was keen to take a look.

In years gone by, this database had saved my life on several occasions when I couldn’t find any New Zealand cases on point and wanted to look to other jurisdictions.

CaseBase was a great option for easily retrieving Australian, and even some English case law, or articles.

But recently CaseBase has been expanded by the addition of a considerable amount of New Zealand material.

What is CaseBase?

CaseBase has over 600,000 case entries of which 75,000 relate to NZ material1. Of that 75,000, not all have full abstracts and/or citation/litigation histories. There has been a big push by LexisNexis (the database provider) to increase NZ content and hopefully this will continue. The database is updated daily.

CaseBase links through to other LexisNexis products such as Unreported Judgements, which provides full text searching across 45,000 judgments, Linxplus and the usual products such as the NZLRs. A CaseBase record contains: • • • • • •

• •

Full case details and parallel citations Case treatment (neutral, negative, positive etc) Catchwords & digest Cases referring to the case Publications referring to the case Cases considered by the case and treatment of those cases (cited, applied, not followed) Legislation considered by the case Link through to full text judgment (if subscribed to)

The citator uses colour signals to show neutral, cautionary, negative/overruled and positive treatments of cases. In theory a glance should tell you if a case is good law. Of course this isn’t quite that simple; cases may be overruled on only one aspect and upheld on the rest. This is when a good abstract can save you a lot of time by noting the treatment of the particular point in the case.

Coverage: CaseBase coverage is more limited than some of its competitors at present. It covers the principal courts together with the specialist courts, but does not cover tribunals such as the Employment Relations Authority 1

From LexisNexis publicity pamphlet

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(although the precedent value of many of these decisions can be limited). The effective date of coverage for NZ material is hard to ascertain as the dates vary for different courts and Report series. The scope document for CaseBase is available at http://www.lexisnexis.com/help/ global/AU/en_AU/casebasescopes.asp.”

It is also important to remember that the access to Australian references can be invaluable (depending on your area of practice), and may offset the fact there are fewer cases than rival databases.

Abstract v full text When you search CaseBase you are searching across abstracts and are, of course, totally dependent on their quality. We have all had examples of reading an abstract, going to the case itself, and discovering that the abstract is hopelessly misleading. As a general rule, I found in the past that the CaseBase abstracts were reasonably helpful.

However I have come across some that require several readings to make sense of them, which is frustrating.

One abstract contained the sentence “Established term enables under Act s 292(2) required only by transaction in question creditor was given means to improve its position over creditors, not creditor would necessarily have succeeded in doing so”. More thought needs to be given by all providers to improving the actual readability of the abstracts.

Ease of search CaseBase is provided on the LexisNexis platform. Most intensive researchers and librarians have always liked this platform, as you can use connectors to construct precise and effective searches. Unfortunately my experience in the past was that many lawyers complained that it wasn’t as easy to use as the chief rival. That rival has now introduced a new platform which also uses a more complicated set of connectors and filters but returns better and more relevant results.

This means that if you have in the past put off the hard work of learning how to use search syntax, now is the time for you to sign up for a few free webinars from the supplier of your choice. It isn’t as hard as it seems once you have practiced it a little. Your database choice can now be based on content, price and quality, rather than how you enter your search terms.

Viewing material When it comes to viewing material, there is both good

news and bad news. The platform allows you to view results in a new format or the classic format. Personally, I like the new format. The results are presented clearly and it has a very good preview screen for each document which is easy to read and has a nice font. Unfortunately you have to close down the preview before you can add a document to your delivery folder or print it. And it can be more difficult to get back to editing and narrowing searches.

The full CaseBase record is nicely set out with tables to add clarity. The abstract uses paragraphs for its concepts so that you are not faced with reading one block of text and trying to sort out different ideas. There are also filters which can be used to sort and arrange the cases considered by a case/referring to a case. This is a nice feature when you are dealing with multiple cites.

Saving and printing your results: This is a feature that I particularly like about CaseBase (and other LexisNexis databases). As you work, you can choose to print/download/email individual records or save them to a delivery folder. If you use the folder you can then arrange your documents within it and either print, email or download the folder. You can also choose your format (Word, text, PDF etc) and what document view you would like (full or brief). This makes organisation of material for later viewing much easier.

Comparing the databases: This article doesn’t attempt to compare case databases.

The problem with any comparison of the major case databases is that of the apples and oranges syndrome.

Each one is slightly different and they have all been chosen to integrate with other components of their platforms. It depends on your practice area, what other material you subscribe too, and frankly, how much you are willing to spend overall. The other problem is that running testing on the results requires more time and intensive research than can be achieved by one brief article.

Price is also a difficult component to compare, because it depends on your levels of subscription etc. This is something you need to talk frankly to your rep about. New Zealand Bar Association members should contact Matthew Pedersen to discuss their LexisNexis subscriptions.

The verdict: This would still rank as one of my “Go To” databases, but in terms of purchasing decisions, that isn’t a decision that can be made in isolation. Australian material can be expensive to obtain, so CaseBase was always a good source for this. Adding the expanded NZ material makes it attractive enough to make me want to start haggling about price. *Jacqui Thompson is the training director of the New Zealand Bar Association and compiles At the Bar. She also is a legal researcher and editor. Contact Jacqui at Jacqui.

Thompson@nzbar.org.nz

New Members of the New Zealand Bar Association Melinda Broek

Dunedin

Prudence Free

Auckland

Peter Fuller

Auckland

Philip Hamlin

Auckland

Denham Martin

Auckland

Daniel Perkins

Wellington

Richard Pidgeon

Auckland

Rosemary Robertson

Hamilton

Richard Sutton

Hamilton

Nicky Utting

Rotorua

Paul White

Auckland

Ting-Chung (Danny) Wu

Auckland

25

PETROL HEAD’S CORNER TARGA NZ 2013

By David O’Neill* with a postscript from James Farmer QC**

David underway

For those of you who follow Targa, I can tell you that this year we started at Dotcom mansion in Coatesville. I didn’t have a clue where Coatesville was, apart from the fact that it was somewhere in the Auckland area. I can tell you it’s through Auckland and then out west into very pleasant countryside, sort of “Big Knobs Country”, (sorry to those NZBA members who live in Coatesville).

There are some big houses out there, but this is the biggest by a long shot!! In a future life I think I’ll go and sell Xmas hampers. The house is built on a steep hill and looks out across the top of west Auckland. The 10 car garaging is stacked 6 down below and 4 up top.

The interior of the garage, that I walked into, to present my documentation, was flasher than most people’s entrances in their houses.

TV1 and TV3 kept elbowing each other out of the way to get pics of what was going on. They wouldn’t interview me despite substantial bribes being offered. The big guy was their target and I don’t look remotely like him.

Tried the accent but got told not to make fun of his nibs by some tattooed goon on a Segway.

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David O’Neill – the new Dotcom?

We were there early enough to get our car in the front row (last time out front – and it got covered in dust and rubbish – sort of ruined the effect…..), and I hear some of my eagle eyed staff managed to spot the car on the news.

I had spotted Jim Farmer’s name in the entrants list, so went to find out if it was one and the same person.

It was. Jim and his wife Rhonda McCrea were in possession of a very well presented and pretty BMW

135i. It had Georgia Racing down both sides and Rhonda’s chiropractic clinic also as one of its naming sponsors. I introduced myself to Jim and Rhonda and they were down the same end of the field as we were.

This was their first time in Targa so understandably they were a little bit nervous, but excited. It is a sort of sweet and sour moment.

being provided by the locals. We then raced out of Whangamomona, back towards New Plymouth and on to Whanganui (note the PC perfect bit) and finally over the hill into Palmerston North.

Enough of that – onto the racing stuff.

The third day was essentially spent in northern Wairapapa and southern Hawkes Bay ending with the much loved stage into Havelock North along the Tukituki stock banks which is an extremely fast road and provides a number of access points for spectators.

Racing It dawned a nice day on Thursday and we headed out towards Kumeu. This first stage was a bit of a loosener, but tough, and it was, particularly for Dotcom. He provided all the entertainment as he had said he would race the first two stages and they had been selling tickets for a lucky draw so that some hapless mug would hop in beside him.

I believe they did have takers for this seat and Dotcom then proceeded to whiz past one of New Zealand’s leading race drivers, hit a corner at about a million miles an hour and tore the wheel off the car (or so we are told).

To add insult to injury, it was a borrowed car.

We toured and raced through the day down through South Auckland, North Waikato, and King Country and into Taranaki where, until the last stage, the weather remained overcast but rain free. It then rained fairly heavily on the final stage of the day which caused some grief to a number of cars.

The next morning dawned fine after ferocious rain storms overnight. The roads were wet and greasy and as a result, a number of the top contenders crashed out in spectacular fashion, one being Clarke Proctor in the Metalman GTR 35 Nissan which hit a bank and barrel rolled in the air before crashing into a paddock and rolling through it. All were OK. The Taranaki roads on day two are notoriously tough, covered in lichen and are a real challenge. They have lined crests, corners after brows and the people who inhabit Taranaki think that a goat track is a two lane road.

There is no way anybody could pass anybody else even with the best will in the World on some of these roads we were on.

Jim and his wife were swapping turns at driving and having looked at times on the Website, they had been doing pretty well. They were somewhat overwhelmed by the amount of information that they were trying to absorb and focus on the race at the same time. They were directly behind us at each start and, all said and done, they were doing well. However, more was to come.

The next day the rally, again, went into Whangamomona (along the Forgotten Highway) and had the usual one hour layover with a superb lunch

All the while the weather remained calm, roads were dry and very fast times were being set.

Unfortunately for Jim and Rhonda, they were followed into a stage, earlier in the day which was particularly fast, by a camera car. This car is driven by an extremely experienced rally driver and is, to newcomers to Targa, unnerving to have him behind you because he hangs off the bumper by about six feet. I had the same experience in my first big rally and found that I spent more time looking in the rear vision mirror than in front.

All I have to go on is what other people have told me, but I understand that Jim was driving, came down a very fast straight and was probably tapped out at around 200kph, braked too late and did not negotiate the fast right hand corner at the end of the straight, proceeded to then park the car into a tree and at the same time knocking over a smaller tree. Both Jim and Rhonda are OK, but the car is a bit shorter than it used to be and I understand, there is quite a bit of work to do on it. Jim has reported to me in an e-mail that they both still have the bug and want to do it again – which is great. I will come to that later in this article.

The final day started with a race up the Gentle Annie towards Taihape and down the other side.

There were some incidents for us - one where the route book warned us about severe bumps along a 900m section. I couldn’t see so anything so I ignored the caution and hit a dip in the road at high speed which caused the back of the car to leap off the ground by a foot or so (it felt like metres)!! That’ll teach me to ignore instructions.

Another highlight was a 22km stage we completed in less than 11 minutes which was the first time I had ever averaged 120kph from start to finish. Bear in mind this includes speed from zero at the standing start, flat out on a straight and slowing to go round corners.

There was a slightly odd moment (if you could call it that) when we were racing through a Rangitikei stage and went through a village at 200kph. It did feel a bit weird to see people sitting out on their verandahs watching cars going past at really high speed.

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We were very chuffed to receive 3rd in class, 2nd in the index of performance (the handicap event for modern) and with a team of three other Hondas, were the best performed team overall in the Targa. A whole load of the most expensive tin plates ever received!!

Postscript by Jim Farmer

Our car is in the smallest class (i.e. smallest engine) in the modern section and all our vehicles are normally aspirated (ie, they do not have turbo or super chargers), and as a result we run at the rear of the field and have a great tussle with each other and often are swapping times or staying within a few seconds overall. It is a heap of fun.

It is rather surreal to come back to our various home towns and then go back to work the next day. It is a little bit difficult adjusting to sitting behind a desk, gazing at a computer screen and trying to sort out problems for clients when just recently you had been driving 100% flat out and thinking of nothing else.

The next year is the 20th Anniversary of Targa. We have been told by the Director of Targa that it will head South, commence in Christchurch, proceed through Dunedin and down to Invercargill and then finish in Queenstown. Jim has indicated that they are keen to do it again, so fingers crossed he will be there at the start line. He has already experienced what most rally drivers experience, which is, a crash. There are only two types of rally driver – one category is those who have crashed and the other category is those who are going to crash.

The Georgia Racing and Trinity Chiropractic car

I have been able to read David’s article, which I enjoyed, and have been asked to add a few comments.

Some of you will know that I am constantly preaching the need for lawyers to have a balanced life style and to engage in activities outside the law – see www. jamesfarmerqc.co.nz for 2 such sermons. It has been pointed out to me that extreme sports (yacht and car racing) may not provide an ideal life balance. However, the both require an enormous amount of time in preparation as well as participation and therefore satisfy the aim of getting away from legal work.

David is right that, as newbies, we were very apprehensive about the first day in particular. By the end of the second day, we felt we were in the swing of things and the enjoyment was terrific. Crashing on the third day provided a reality check and a reminder that the learning curve in this sort of thing is very steep. I was impressed though at how effective the required safety features of rally cars are – roll cages, rally seats, harnesses, neck braces (to prevent whiplash) and of course helmets – and amazed at how calm we were extracting ourselves from the car.

The car no longer has a pretty nose but the repair work is not likely to be that extensive. I can’t wait to give it another go and will be taking the opportunity to get more training from ex-racing car champion Robbie Francevic who built the car and has been a great encouragement and support to us in this venture.

The start at the Dotcom mansion

The photograph above from the Dotcom mansion start represents a small part of the property. The house was three storeys and it was all fairly impressive. The Chrisco people must have sold a lot of hampers… We were not joined on the day by representatives of the New Zealand Police. Nor, disappointingly, could I see signs of them perched in trees with directional mics and cameras in hand. I’m sure they were there in spirit wishing us all happy motoring…

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There is a detailed account of our experiences in the Targa with photos that can be viewed on www.georgia-racing.co.nz.

I thoroughly recommend this activity to my barrister colleagues! * David O’Neill is a Hamilton barrister, a member of the NZBA Council, a self-professed petrol head. ** James Farmer QC is a well-known racer of yachts and arguably an even better known barrister.

Obstacles and Opportunities Seminar

By Melanie Jones* A review of the very successful recent seminar held for professional women in Christchurch. The NZBA would like to thank all those involved in the organisation of this event but make particular mention of former NZBA VicePresident and current CWLA convenor, Catherine Bibbey, who worked tirelessly for the seminar’s success, even while on crutches and on two occasions while in hospital!

On Friday, 22 November 2013, the New Zealand Bar Association and the Canterbury Women’s Legal Association organised a professional women’s seminar titled “Obstacles and Opportunities” at the Ridges Latimer Christchurch. 165 attendees listened, laughed, and responded to the panel of eight talented and successful presenters.

The seminar’s aim was to encourage and enable professional women to overcome obstacles and seek opportunities in their career development. Helen Cull QC chaired the seminar and did a wonderful job of introducing the presenters, ensuring that the programme ran smoothly and making poignant observations and comments throughout.

Mai Chen emphasised persistence in her presentation and reminded us of wise words from Calvin Coolridge that, “nothing in the world can take the place of persistence…” Successful individuals don’t just have one great moment; they constantly strive and take little steps to achieve greatness. Lawyers tend to have a strong perfectionist characteristic and need to be reminded that persistence is required to gain mastery of legal skills.

Mai has also set up a website called “will to live” (www.willtolive.co.nz ) which enables people to create their own will online. However, it is more than just that – it is about embracing life and asking yourself, • Is today the day I die?

• Am I ready?

• Am I doing all I need to do?

• Am I being the person I want to be?

Lisa O’Neill, stylist, entertained us with her hilarious perspective on building our personal brand and personal plan. She empowered us to get out of our track pants or black uniform and ensure that our external appearance reflects our internal projection of ourselves. Lisa reminded us to create our own reality in our professional careers, and remember that “hope is not a plan”. She asked us all a challenging question – what would you do if you knew you couldn’t fail? During Lisa’s presentation, I noticed many women wiping the tears of laughter from

their face. Lisa was a breath of fresh air, and reminded us that we need to live today, not in five years’ time if and when we have lost five kilos.

I wondered if our next presenter, Andrea Thompson might struggle to follow such a dynamic speaker.

However, I need not have worried. Andrea is the cofounder of Catapult, a company which specialises in leadership development. Andrea’s wise words focussed on projecting and building confidence in our professional lives. The starting point was: How do you see yourself?

Andrea made the valid point that men externalise failure, and women tend to internalise failure. We need to overcome this tendency to internalise by building a leadership backbone. Briefly this “backbone” consists of your vision, purpose, values and who you want to be.

Andrea finished on the thought that “nothing comes to those who wait except mould.”

Justice Minister, the Hon. Judith Collins, is the current highest ranked woman in Cabinet. Ms Collins enlightened us with her history from a childhood farming background and desire as a 1960s school girl to become a “lady doctor” through to becoming a prominent member of the National Party. Ms Collins broached the subject of guilt and professional women.

Women seem to specialise in guilt at every level - are we spending enough time with our children, our partner, our colleagues?

She counselled us that we, as women, need to let go of what other people think of us. Instead we have to be brave, courageous and occasionally completely outrageous!

The Hon. Justice Susan Glazebrook discussed the myths surrounding why women make up less than onefifth of the large law firms partnerships in New Zealand and are under-represented generally in senior positions.

Justice Glazebrook debunked each of those myths with compelling data. Justice Glazebrook then surprised us with her personal story of how she left school at 15 through to her appointment at the bench, with a varied life experience in between. Justice Glazebrook completed her presentation by urging us all to seize every opportunity that comes your way and to ensure that your professional career has a strong ethical foundation by giving back to your community.

Emily Morrow hails from Vermont, USA, where she was a senior partner in a large law firm. On emigrating to New Zealand Emily now provides consulting services

29

for solicitors, barristers, in-house counsel and law firms focussing on non-technical skills that correlate with professional success. Emily’s presentation focussed on dealing with difficult personalities. Emily pointed out that in her work she is often asked to “fix” him or her.

However, you cannot change someone’s behaviour, but you can change your own behaviour. Emily then went on to discuss four key personalities using owls, bees, dolphins and foxes to highlight the traits of these personalities. The key idea that I took away from Emily’s presentation was to try and understand the other “difficult” personality rather than focus on your own needs to be understood. This is probably an idea that might be wise to implement in our personal as well as professional lives.

Carmel Fisher, the founder and Managing Director of one of New Zealand’s largest investment managers, Fisher Funds, was the last presenter of the day. Carmel’s presentation encouraged women to live by choice, not chance with their financial decision making. It forced us to consider whether we are making wise investment decisions for ourselves. Women outlive their male partners on average by seven years. At the very least we should be salting away 8% of our salary into a KiwiSaver Fund and as little as $50 per month into investments.

She pointed out that when we are all in a rest home together, those that have heeded her advice will still be able to afford the purple rinse!

The afternoon finished with a word from the next generation. The very talented Alex Hallifax, a final year student from St Andrews College in Christchurch entertained us all with a speech about why mothers should not be their teenage children’s Facebook friends.

The organising committee are grateful to our sponsors as without them, the event would not have been possible.

Our law firm financial sponsors were • Simpson Grierson • Lane Neave • Harmans • Chapman Tripp • Wynn Williams Our other large sponsors were: • Craigs Investment Partners • Merrill Corporation • Medical Assurance • Euromarque We also thank Megisti Sailing Charters, Yazu Hair Lounge, Lone Star, Mind Food Magazine, Maserati Magazine, Thompson Reuters, Lexis Nexis, Beauty at the Tannery and BDM Grange Ltd who supported this event with contributions to speaker gifts, vouchers and goodie bag inserts. * Melanie Jones is a solicitor at White Fox & Jones Christchurch and a member of the Canterbury Women Lawyers’ Association: email maj@whitefox.co.nz

Andrea Thompson, Lisa O’Neill and Hon. Judith Collins

Helen Cull QC

Dr Emily Morrow, Hon. Justice Susan Glazebrook, Alex Halifax and Carmel Fisher

Mai Chen

Members of Tuahiwi Marae perform a mihi whakatau

Denese Bates QC, Sonja Clapham and Helen Cull QC

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Christchurch Christmas Drinks, The George, 1 November 2013

Stephen Mills QC, Dale Lester, Simon Shamy and Hon. Justice William Young

Kirsty May and Helen Coutts

Kerry Cook, John Hardie and Peter Egden

James Wilding, Judge Jane McMeeken, Austin Forbes QC and Denise Johnston

Bob Perry, Catherine Bibbey, Pru Steven and Stuart Rose

Malcolm Wallace, Peter Davey, Jonathan Eaton QC, Clive Elliott QC and James Rapley

Jai Moss, Judge Raoul Neave and Marcus Elliott

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Christchurch Silks Dinner, The George, 30 August 2013

Richard Raymond and Hon. Justice William Young

Nicholas Till QC, Dale Lester, Gerald Nation and Hon. Justice Graham Panckhurst

Fiona Eaton, Kevin Clay and Jonathan Eaton QC

Nigel Hampton QC, Dean Tobin and Stephen Mills QC

Fiona Eaton and Dr. Chris Gallavin

Mark Zarifeh, Marcus Elliott and Charlotte Elliott

Austin Forbes QC, David Caldwell and Simon Shamy

Trevor Shiels QC and Tim Shiels

Philip Hall QC, Judge Raoul Neave, Hon. Justice John Fogarty and Anna Burbury

Andrew Bailey, Serena Bailey and Todd Nicholls

Mark Zarifeh, Stuart Rose and Helen Coutts (The NZBA would like to thank Helen for all her help with organising the dinner)

Address from Stephen Mills QC

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Auckland Silks’ Dinner – Royal New Zealand Yacht Squadron 13 September 2013

Greg Jones, Rt. Hon Chief Justice Dame Sian Elias, and James Farmer QC

Stephen Bonnar and Belinda Sellars

Gillian Coumbe QC, Matt Casey QC, Hon. Justice Jade McLellan and Daniel McLellan QC Helen Winkelmann and David Bigio

Rosemary Thomson and Paul Dacre QC

Paul Dacre QC and Philip Morgan QC

Gillian Coumbe QC, Stephanie McMillan and David Ogden

Melissa Perkin and Simon Moore QC

Judge David Harvey, Clive Elliott QC and Alex McDonald

Miriam Dean CNZM QC, Justice Ailsa Duffy, Simativa Perese, Frances Joychild QC, Philip Rice, Dilki Rajapakse and Geraldine Whiteford

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Wellington Silks’ Dinner – St Johns Restaurant 11 October 2013

Les Taylor QC and Richard Fowler QC

John Greenwood and Helen Cull QC

Karen Stevens and Theo Doucas

Leo Lafferty, Pamela Fairbrother and Russell Fairbrother QC

John Pike QC, Bruce Corkill QC and Matthew Smith

Hon. Justice Douglas White, Karen Clark QC, Peter Castle and Paul Radich

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Paul Morten, Noel Sainsbury and Ian Thorpe

Derek Johnston and Elana Geddis

Paul Mabey QC and Hon. Justice Terence Arnold

Les Taylor QC, Justin Smith QC and Terence Stapleton QC

Robert Lithgow QC and Justin Smith QC

John Pike QC and Mike Lennard

NZBA Office Christmas Closure Please note that the office of the NZBA will be closed from Thursday 19th December 2013 until Monday 13 January 2014.

Wishing you a safe and enjoyable holiday break.

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2013-2014 COUNCIL CONTACT DETAILS STEPHEN MILLS QC – President Ph: +64 9 307 9820 stephen.mills@shortlandchambers.co.nz P O Box 4338, Shortland Street, Auckland 1140 PAUL MABEY QC - Vice President/President Elect Ph: +64 7 577 1091 Fax: +64 7 577 1092 pgmabey@xtra.co.nz PO Box 13199, Tauranga 3141

WORLD BAR CONFERENCE 2014

ADVOCATES AS PROTECTORS OF THE RULE OF LAW 4th to 6th September 2014 Heritage Hotel, Queenstown, New Zealand Every two years, the International Council of Advocates and Barristers (ICAB) organises an international legal conference in different locations worldwide.

In September 2014 the event will be hosted by the New Zealand Bar Association in Queenstown, New Zealand, the Southern Hemisphere’s stunning premier lake and alpine resort.

This is the only conference which brings all members of ICAB and guest jurisdictions together for two and a half days of exclusive visits, networking, debate and discussion.

Conference themes

• Human rights and the rule of law; • Challenges in the era of globalisation; • Economics, international trade treaties and national sovereignty; • Surveillance versus privacy: the balance between the State, the Fourth Estate, the citizen and the rule of law; • Advocacy – upholding the rule of law in a global context.

Speakers

• The Hon the Chief Justice Menon (Singapore) - Keynote Speaker

• The Rt Hon Lord Dyson, Master of the Rolls (United Kingdom) -

Keynote Speaker

• H.E. Judge Sir Christopher Greenwood CMG QC

(United Kingdom; International Court of Justice) - Keynote Speaker

• Julian Burnside AO QC (Australia)

• Russell Coleman SC (Hong Kong)

• The Rt Hon Chief Justice Elias (New Zealand)

• Hon Christopher Finlayson QC, Attorney-General (New Zealand)

• Stephen Hockman QC (United Kingdom)

• The Hon Justice Glenn Martin AM (Australia)

• Professor John McKay (United States of America)

• Beatrice Mtetwa (Zimbabwe)

• Joe Smouha QC (United Kingdom)

• Hon Justice Joseph Williams (New Zealand) Registrations will open 1 February 2014. More information is available at:

www.nzbar.org.nz

TIM CASTLE – Vice President Ph: +64 4 471 0523 Fax: +64 4 471 0672 tim.castle@xtra.co.nz P O Box 10048, Wellington PETER DAVEY Ph: +64 9 309 0475; Fax: +64 9 354 3850 pj@davey.co.nz PO Box 1811, Shortland Street, AUCKLAND 1140 CLIVE ELLIOTT QC Ph: +64 9 309 1769; Fax: +64 9 366 1599 elliott@shortlandchambers.co.nz PO Box 4338, Shortland Street, Auckland 1140 MARCUS ELLIOTT Ph +64 3 348 7300 me@marcuselliott.com PO Box 9344, Christchurch BRUCE GRAY QC Ph: +64 9 307 9811; Fax: +64 9 307 1572 bdgray@shortlandchambers.co.nz PO Box 4338, Shortland Street, Auckland 1140 LISA HANSEN Ph: +64 4 914 1052 l.hansen@barristerscomm.com PO Box 8045, Wellington 6143 DESLEY HORTON - Junior Barristers’ Representative Ph +64 9 307 9826 dhorton@shortlandchambers.co.nz P O Box 4338, Shortland Street, Auckland, 1140, SIMON MOORE QC - Co-opted Ph: +64 9 336 7505; Fax: +64 9 336 7629 simon.moore@meredithconnell.co.nz Meredith Connell, PO Box 2213, Auckland 1140 DAVID O’NEILL Ph: +64 7 839 1745 Fax: +64 7 838 9319 david.oneill@nzbarrister.com PO Box 815, Hamilton 3240 SUZANNE ROBERTSON Ph: +64 9 307 8778 suzannerobertson@xtra.co.nz PO Box 854, Shortland Street, Auckland 1140 JUSTIN SMITH QC Ph: +64 4 917 1080; Fax: + 64 4 472 9029 justin.smith@stoutstreet.co.nz PO Box 5722, Lambton Quay, Wellington MATTHEW SMITH – Junior Barristers’ Representative Ph: +64 9 460 0749 matthew.smith@chambers.co.nz PO Box 1530, Wellington 6140 DEAN TOBIN Ph: +64 3 477 8781 Fax: +64 3 477 8382 dean.tobin@princeschambers.net P O Box 1424, Dunedin MALCOLM WALLACE – Vice President/Treasurer Ph: +64 3 379 6976 Fax: +64 3 366 6291 malcolmwallace@bridgesidechambers.co.nz P O Box 13254, Christchurch 8141

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