At the Bar February 2012

At The Bar February 2012

Justice Chambers and Attorney-General Chris Finlayson speak to At The Bar NZBA’s 2012 conference in Melbourne 24-26 August Members invited to support Christchurch colleagues Ex-NZBA President “Arrested” in Australia

INSIDE THIS ISSUE Pg 2 - Legal Profession Terrific Career Justice Chambers

Legal Profession Terrific Career - Justice Chambers

By Catriona MacLennan

Pg 4 - Financial Constraints to Dominate Legal Sector - Attorney-General

Justice Chambers said that the downside of the Court of Appeal had been that it was difficult to find time to think deeply about difficult cases, because new cases were always coming along the conveyor belt. He said that he was looking forward to the fact that there would be fewer cases to deal with in the Supreme Court and there would accordingly be more time to think about decisions.

Pg 5 - Message from Justice Minister to NZBA Members Pg 5 - NZBA’s 2012 Conference to be Held in Melbourne - Theme is Leading a Successful Team Pg 6 - Dinner to Support Christchurch Criminal Bar Pg 7 - Ex-NZBA President’s Yachting Success in Australia Pg 8 - NZBA Becomes Full IBA Member Pg 8 - NZBA President to Speak at World Bar Conference

“Judgments must in my view be expressed as simply and practically as possible and not be Law Review articles. That is the gold standard to which I will be trying to work.”

Pg 9 - NZBA Sponsors Paris Visit - Stage International Pg 10 - New Members of the NZBA Pg 11 - Reforms to United Kingdom’s Civil System Aim to Provide Speedier and Cheaper Justice Pg 12 - Foreign Correspondent - News From Around the World Pg 13 - Rules Committee - Consultation on Criminal Procedure Rules: E-Filing Proposed Pg 14 - Rules Committee - NZBA Submissions Concern Expressed Over Failure of 2009 Reforms Pg 15 - Obituary - Rt Hon Sir Maurice Casey - Judge Who Stopped Tour of South Africa Pg 16 - Obituary - Helen Mary Aikman QC - A Woman of Light and Grace Pg 18 - Obituary - George Tanner QC - Architect of the Nation’s Laws

EDITOR CATRIONA MACLENNAN Tel: 0064 9 378 0964 Email: catmac@orcon.net.nz EDITORIAL COMMITTEE Clive Elliott Tel: 0064 9 309 1769 Email: elliott@shortlandchambers.co.nz Melissa Perkin Tel: 0064 9 303 4515 Email: melissa.perkin@nzbar.org.nz

Justice Robert Chambers Being asked to serve on the Supreme Court was an honour and a great privilege, said Justice Robert Chambers who was appointed to New Zealand’s highest court with effect from 1 February 2012. In an interview with At The Bar to mark his appointment, Justice Chambers said that he was looking forward to his new role.

“I think being a lawyer, and especially being a litigator, is a terrific career because it enables people to change course slightly in mid-career. I greatly enjoyed being an advocate. I then became a trial judge for almost four years, which I hugely enjoyed – especially doing the criminal trials which I had never really done in practice. That caused me to develop a great interest in modern methods of instructing juries.”

Justice Chambers said that he had then become an appellate judge.

“The Court of Appeal is a terrific court to be on. It is at the heart of the judicial system.”

Design and layout by Kirsten McLeod Tel: 9 834 2224

However, His Honour noted that the Court of Appeal had delivered more than 670 judgments in 2011.

NEW ZEALAND BAR ASSOCIATION Tel: 0064 9 303 4515 Fax: 0064 9 303 4516 Email: nzbar@nzbar.org.nz Web: www.nzbar.org.nz P O Box 631 Auckland 1140

“I confess, after eight years on it, to feeling pretty tired. The judges on the Court of Appeal have to work very hard.”

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His Honour said that it was important that judgments be easily accessible not only for trial judges and lawyers but also for the public.

Justice Chambers said that his years on the Court of Appeal bench had demonstrated to him that lawyers did an extremely good job.

“Even barely competent advocates are better than no advocate at all.

In my experience, most litigants in person do not have the skills to frame issues for the courts and to argue issues succinctly. Even barely adequate advocates help by giving you a steer and, of course, the best advocates are a joy to listen to.”

Justice Chambers said that the biggest thing he had noticed when he first became a judge was how useful lawyers were. He said that, when he had been in practice, he had thought that advocates should aim to be as brief as possible. However, from the judicial perspective it was immensely beneficial to hear from both sides and he had realised that extreme brevity was not necessarily desirable.

He said that he thought that, on the whole, the standard of the New Zealand legal profession was pretty good. The judiciary always hoped, particularly at appellate level, that counsel would come to court thoroughly prepared.

“Though I think judges need to remember, even at appellate level, that there are always cost constraints on lawyers and judges need to factor that in to how well lawyers can prepare. I think that is particularly the case when lawyers are on legal aid, whether civil or criminal.”

Commenting on ongoing concerns about the ability of the civil justice system to provide access to the courts speedily and at a reasonable cost, His Honour said that he believed that there had been improvements since the NZBA and Legal Research Foundation’s Civil Litigation in Crisis – What Crisis ? in February 2008. Justice Chambers in his address to that conference was less pessimistic than many other speakers about the flaws in the system, stating that he believed that talk of a crisis was overblown. He said then that improvements could be made but that, fundamentally, the legal system in New Zealand continued to provide a fair and timely means of resolving civil disputes.

Justice Chambers said that he believed that the new discovery regime which took effect on 1 February 2012 would be hugely helpful if it was properly applied.

“It will in the great majority of cases limit discovery and the costs associated with excessive discovery.”

His Honour said that the other key spin-off of the new regime would be that, because it was electronic, it would permit electronic inspection of documents and extremely efficient production of common bundles of documents. As cases went on appeal, it would also be possible to use electronic cases on appeal based on the electronic package already created for the trial court.

The Court of Appeal’s introduction of a fast-track pilot scheme for appeals was another initiative that had the potential to enable civil appeals to be heard efficiently, said Justice Chambers. A Fast Track Practice Note 2011 provides that the fast track was to take effect from 1 February 2012. Any party to an appeal may apply for entry to the fast track. The court will then use its best endeavours to offer a fixture date within two months of the fixture date being applied for and the case on appeal being filed.

However, Justice Chambers noted that it was unclear at this time whether lack of resources would constrain the number of cases which could enter the fast track.

His Honour noted that there would also be major changes taking place in the High Court this year in relation to case management.

He said that Chief High Court Judge, Justice Winkelmann, was very alive to the need for efficient dispatch of business in the High Court.

Justice Chambers told At The Bar that the 2009 reforms to the District Courts Rules implemented while he was a member of the Rules Committee had met with a mixed reception.

“I think it is too early to be definitive as to whether they have succeeded or not but they were a real attempt to provide proportionate justice for smaller claims.”

His Honour said that smaller claims comprised the bulk of civil litigation. He had been sceptical about the merits of some of the proposals initially but had later become convinced that they would be of benefit. He said that the system permitted average, intelligent people to act for themselves, which was a vital component because people pursuing small claims would often not be eligible for legal aid.

“The great problem with civil justice, which no jurisdiction has really been able to cure, is that lawyers are expensive. There’s just no way round that, so one just has to work with that as a fundamental premise. That limits what one can do in the way of reform.”

Justice Chambers said that he suspected that lawyers now were more expensive in real terms than they had been 50 years ago because, at that time, personal injury litigation had subsidised the cost of other civil litigation as it had been extremely profitable for lawyers.

“There is not really any equivalent form of litigation now which one would call a cash cow for litigators. Lawyers today are therefore understandably not as inclined as previously to do a lot of smaller work free or for modest fees.”

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Financial Constraints to Dominate Legal Sector Attorney-General

By Catriona MacLennan

Financial constraints would dominate the legal sector in the next three years, said Attorney-General Christopher Finlayson.

Mr Finlayson said in an interview with At The Bar that economic austerity would be ongoing. The justice sector had grown considerably in recent years, so every item of expenditure needed to be scrutinised.

Mr Finlayson said that Prime Minister John Key had also signalled that Attorney-General Christopher the Government would Finlayson be placing considerable emphasis on improving public services so that individuals were able to interact better with the state. He said that this drive would flow into the court system, with initiatives to implement electronic filing and an ongoing programme of updating legislation.

“There is just so much that needs to be done there.”

He said that it was important to ensure that “lawyers’ law,” such as limitation, was correct or the system could not function effectively.

Mr Finlayson entered Parliament in 2005 and was appointed to Cabinet in 2008 following National’s general election win.

Between 2008 and 2011 he held the portfolios of AttorneyGeneral, Minister for Treaty of Waitangi Negotiations, and Minister for Arts, Culture and Heritage. He retained those portfolios following the 2011 election.

Mr Finlayson said that he was focusing heavily on his treaty work at present.

“The work programme for this year is pretty huge.”

He said that many negotiations were at the point where they were 95 or 96 per cent complete. Mr Finlayson said that his experience was that many iwi all around New Zealand were increasingly keen to progress their claims negotiations as the process had been underway for so long. Mr Finlayson in an article dated 16 February 2012 said that the Government’s commitment to progressing treaty settlements was being boosted by extended parliamentary sitting hours and the use of cognate bill options.

“Innovations such as the use of cognate bills and extended sitting hours keep things moving and reduce the time iwi have to wait to take full advantage of settlement benefits. It also avoids the House having to go into urgency, and means that the wider legislative programme is not affected.”

The Government aims to settle historical claims by 2014, meaning that more legislation will be before the House in the short and medium terms. The Ngai Tamanuhiri Claims Settlement Bill and Ngati Makino Claims Settlement Bills

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received their first readings on 16 February. Ngai Tamanuhiri is a Gisborne iwi, while Ngati Makino is a Bay of Plenty iwi. The Ngati Makino Claims Settlement Bill provides for financial redress of $6.5 million, the transfer of over 3400 hectares of Rotoehu Crown Forest Licensed Land and the return of key cultural sites.

Mr Finlayson said that the issue of access to justice through the civil courts was constantly being scrutinised. He said that the Rules Committee had consulted on the reintroduction of summary judgment.

“You’ve got to have a system that is able to provide swift and effective justice.”

He said that a key issue was providing a court process with costs commensurate with the amount at stake in the proceedings. There must be procedures which enabled people to take disputes to court and receive redress.

Mr Finlayson said that he believed that New Zealand had a very good legal profession which was well-educated. Some of this country’s law schools had provided outstanding education over many years. He said that he had no particular concerns about the quality of the legal profession. One or two practitioners let the side down but in South Auckland, which had received so much adverse publicity, the vast majority of practitioners were competent.

“I think, generally speaking, it’s pretty good. We need to keep up standards. We have to ensure that justice is not visited on the vast majority of good, hard-working practitioners because one or two let the side down.”

Mr Finlayson said that he had been involved with the New Zealand Law Society’s continuing legal education programme for six years.

“I think it’s a tremendous programme and the quality of the submissions offered is a great incentive to attend.”

Mr Finlayson also praised NZBA’s seminars, describing them as exceptionally good. He said that a major current issue was whether or not continuing professional development should be made mandatory. The NZLS has issued a discussion document seeking comment from the profession on the subject. The paper proposes that eligible CPD would include participating in or presenting at seminars; lecturing; writing law-related books and articles; and preparing formal submissions.

Mr Finlayson said that he did not intend to express an opinion publicly on whether or not continuing professional development should become mandatory. However, he would follow the debate with interest.

“I see arguments for and against.”

He said that the American Bar Association required members to attend continuing professional development but that sometimes resulted in people enrolling and attending registration but then not actually attending the course. In Australia, there had been debate as to whether or not compulsion worked.

Message From Justice Minister to NZBA Members

By Hon Judith Collins, Minister of Justice

Greetings and happy New Year to you all.

It is a real honour and a privilege to be Minister of Justice this term. Over three years ago, this Government was elected with a commitment to improve the safety and security of our communities.

We’ve delivered.

Last year had the lowest crime rate in nearly 30 years and we’re forecasting the first sustained decline in the prison population for 80 years.This strongly affirms the Government’s focus on law and order, and the vital role everyone in our justice sector – Police, Courts, and Corrections – plays in putting our policies into action. It is clear that there is a much more positive outlook for the sector.

The Government remains committed to delivering a justice system that is accessible to all New Zealanders. Falling crime rates and fewer people entering the justice system mean we have a once in a generation opportunity to modernise the system, and to ensure it continues to meet New Zealand’s changing needs.

Hon Judith Collins, Minister of Justice

We aim to transform the justice sector and deliver a modern, effective and accessible justice service.

That is something we can be extremely proud of. I am excited about what the future holds for the justice sector and what this will mean to the lives of New Zealanders.

NZBA’S 2012 Conference to be Held in Melbourne - Theme is Leading a Successful Team The New Zealand Bar Association’s annual conference will be held in Melbourne from Friday 24 August to Sunday 26 August 2012.

The conference theme will be leading a successful team, with a focus on the role of experts. The keynote speaker will be former Federal Court of Australia judge, Justice Raymond Finkelstein QC.

Other speakers at the conference will include High Court Judge and Rules Committee chair, Justice John Fogarty, Environment Court Judge Craig Thompson, Commerce Commission chair Dr Mark Berry and forensic science consultant and director of The Forensic Group, Dr Anna Sandiford.

Mr Finkelstein was a tutor at Monash University and a solicitor in Melbourne between 1971 and 1975, before being called to the Bar in 1975. His mother and father were Poles who came to Australia as stateless Jews in 1951. During his years at the Bar, Mr Finkelstein shared chambers with Ron Merkel QC and Alan Goldberg QC, who were also later appointed to the Bench. The fact that the trio had extensive experience in corporate law litigation made Melbourne a centre for such litigation, with 90 per cent of corporate cases in the Federal Court at one time being listed in the city.

Dr Sandiford is the author of the book Expert Witness. She has worked in forensic science since 1998 and has been involved with cases in New Zealand, the United Kingdom and the Channel Islands and Cayman Islands. She is one of only a handful of forensic palynologists in the world and was the resident forensic science adviser to the David Bain defence team during his 2009 retrial. Dr Sandiford’s casework specialties include alcohol/ drink drive, footwear, geology, glass, pollen (palynology), toolmarks, physical fits, drugs and drug traces.

Mr Finkelstein was appointed a Queen’s Counsel in 1986 and became acting Solicitor-General for the state of Victoria in 1992. He was a judge of the Federal Court of Australia from 1997 until 2011.

Further details about the conference will be provided to members by email and in the June issue of At The Bar.

Mr Finkelstein was president of the Australian Competition Tribunal between 2008 and 2011. He retired from the Bench in 2011 to return to the Bar and moved into chambers with Mr Goldberg and Mr Merkel.

Mr Finkelstein was renowned for encouraging lawyers to simplify cases and made rulings formulating new approaches to class actions, insolvency and competition law. He has been described as one of Australia’s most creative and inspired commercial judges. He presided over the civil hearing of prominent Australian businessman Steve Vizard, imposing a fine of $390,000 and a 10 year ban on holding company directorships by way of sentence.

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Dinner to Support Christchurch Criminal Bar The Criminal Bar Association of New Zealand Inc and the Auckland District Law Society Inc warmly invite NZBA members to attend a dinner in Auckland in support of the Christchurch Criminal Bar. New Zealand has recently marked the first anniversary of the tragic loss of life in the 22 February 2011 earthquake. Members of the Criminal Bar in Christchurch, along with other Cantabrians, have endured heavy suffering both before and after that date, beginning with the first earthquake on 4 September 2010.

The dinner at the Ellerslie Event Centre on Friday 30 March 2012 at 7pm is to raise funds for the Christchurch Criminal Bar. The cost is $150 and dress is formal. The guest speaker will be former High Court of Australia judge, Justice Michael Kirby AC CMG, who is renowned not only as an eminent jurist but also as an extremely popular speaker.

Sir Michael was appointed to the High Court of Australia in 1996 and served on the bench for 13 years, making him Australia’s longest-serving judge when he retired in 2009.

In his later years on the bench, Sir Michael twice served as Acting Chief Justice of Australia.

In addition to his judicial duties, Sir Michael served on three Australian university governance bodies as well as on many national and international bodies. He was president of the International Commission of Jurists, Geneva, between 1995 and 1998 and a member of the United Nations’ High Commissioner for Human Rights Judicial Reference Group.

Since his retirement, Sir Michael has been appointed an honorary visiting professor by 12 universities and also

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serves as the editor-in-chief of The Laws of Australia. In 2010 he was awarded the Gruber Justice Prize. He is also currently a member of the Eminent Persons’ Group which is investigating the future of the Commonwealth of Nations.

He is the president of the Institute of Arbitrators & Mediators Australia and a member of the Arbitration Panel of the International Centre for Settlement of Investment Disputes (World Bank).

NZBA members will recall that Sir Michael spoke to the Association’s 2007 annual conference in Queenstown. He addressed the topic of advocacy, noting that the High Court of Australia’s decision in the Wik case had conclusively demonstrated to him that lawyers were in the business of persuasion. Sir Michael told the conference that counsel should remember that they were in court to speak for the voiceless and must have the courage to stand up. He said that the opening sentences of oral submissions were counsel’s opportunity to capture the court’s attention.

Openings should accordingly not be technical and boring. *NZBA members who are unable to attend the dinner might wish to make a donation to the fundraising effort. This can be done by sending a cheque to P O Box 135, Shortland Street, Auckland. Email roger.chambers@xtra.co.nz. **The generous support of Giltrap Audi in sponsoring this event is gratefully acknowledged. In addition to providing significant funding for the event, Giltrap Audi has supplied a mystery prize. All those attending the dinner will be in the draw to win the prize.

Ex-NZBA President’s Yachting Success in Australia Former NZBA President, Jim Farmer QC, in late January won Australia’s largest yachting regatta – the Melbourne Festival of Sails and Geelong Race Week. In his 52 foot yacht GEORGIA, built by Cookson boats locally two years ago, he won the Premier Division A with an almost perfect score line of 2,1,1,1,1,1,1, beating the next boat by 12 points.

The Australian media was fulsome in its praise, saying that GEORGIA had “hit the ball so far out of the ground that it may never be found again”. The skipper of the first Australian boat to finish the series said that GEORGIA was in “another league”.

An article by Festival of Sails journalist, Lisa Ratcliff, noted that Dr Farmer had made some changes to the boat following last year’s Audi Hamilton Island Race Week, including putting in a deeper draft keel and buying new sails.

well as being terrific people to be with. At the end of the day that’s what it’s all about.”

America’s Cup veteran, Chris Dickson, was GEORGIA’s tactician.

By winning the regatta, Dr Farmer also won what is said to be the oldest sporting trophy in the Southern Hemisphere (going back to 1841). The prospect of its leaving Australia for the first time, however, was said to have led to Dr Farmer’s arrest by Australian Police (see photo) who only released him after he agreed to leave the trophy in the Royal Geelong Yacht Club showcase. *Any other NZBA members who have exploits they wish to share with readers in upcoming issues of At The Bar should contact the editor, Catriona MacLennan – see details inside the front cover.

Ms Ratcliff said that GEORGIA, which she described as “the gun New Zealand boat,” had been so far ahead on points that it could have stayed ashore on the final day but the crew had instead opted to complete the series. The boat had done so in style “with their fifth corrected time win under a scorching hot sun and in the light ESE breeze that dialled left to the ENE and built, the race committee shifting the finish line accordingly.”

Ms Ratcliff quoted Dr Farmer as saying that the race involved “Perfect weather, flat water, lots of boat speed for us and no mistakes. [The crew members] are all very good sailors as

Photo by Teri Dodds

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NZBA Becomes Full IBA Member The New Zealand Bar Association has moved from being a sustaining member of the International Bar Association to full membership of the organisation. Any national Law Society or Bar Association is eligible to apply for full organisation membership of the IBA. Full member organisations are entitled to appoint up to two IBA councillors to sit on the IBA council and are also entitled to vote at council meetings. Full member organisations pay higher dues than do sustaining members.

NZBA was previously a sustaining member, meaning that it could appoint up to two IBA representatives to sit on the IBA council but was not entitled to vote(except if an agreement had been reached with the full member organisation from the relevant country).

The Bar Issues Commission of the International Trade in Legal Services Committee is developing a resolution on association to supplement the “Transfer of skills and liberalisation of legal services” resolution that was passed by the IBA Council in October 2008.

The consultation is open until 31 March 2012. More information about this issue is available on the NZBA’s website – www.nzbar.org. nz. Otherwise, anyone interested should contact Melissa Perkin.

NZBA President to Speak at World Bar Conference NZBA President, Miriam Dean CNZM QC, will deliver a speech at the biannual International Council of Advocates and Barristers’ Conference to be held in London between 29 June and 1 July 2012. Council member Clive Elliott will also be attending the conference. The theme for this year’s conference is “Advocacy, past, present and future – constant values for a modern Bar.”

NZBA President, Miriam Dean CNZM QC

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The ICAB holds conferences in different cities every second year. The last meeting was in Sydney. The 2012 conference will include addresses by the Hon Robert Shenton French AC, Chief Justice of the High Court of Australia; the Rt Hon The Lord Judge, Lord Chief Justice of England and Wales; the Rt Hon The Lady Hale of Richmond DBE PC, Justice of the Supreme Court of England and Wales; Mr Justice Edwin Cameron, Justice of the South African Constitutional Court;

Baroness Deech of Cumnor DBE, Chair of the Bar Standards Board; and the Honourable Tan Sri James Foong Cheng Yuen SMW DPMS, Judge of the Federal Court of Malaysia.

Key topics to be discussed in conference sessions include the following – • the courts’ expectations of the advocate • advocacy in the highest court • lessons from the advocates of the past • training the young Bar in cross-examination • advocacy at public inquiries, and • prosecution advocacy.

Those attending the conference will be able to tour the Rolls Building prior to the start of the formal sessions. More information about the conference is available on the NZBA’s website – www.nzbar.org.nz

NZBA Sponsors Paris Visit - Stage International

By Zyanya Hill, Barrister

For the last 20 years, every Parisian autumn, the Parisian Bar has welcomed young, French-speaking lawyers from all over the world to participate in a twomonth-long traineeship. In 2011, 75 lawyers attended from 38 different counties, including Argentina, Benin, Croatia, Lebanon, Mauritania and Norway.

The requirements for the course are simple: be under 35, a francophone and a practising lawyer.

I was lucky enough to be chosen by the New Zealand Bar Association to attend in 2011. The Zyanya Hill, Barrister month of October was dedicated to classes organised by l’Ecole de Formation du Barrreau, the French version of The College of Law or IPLS. The classes covered diverse topics ranging from French Civil Procedure to international contract law and the art of oratory. All classes were conducted entirely in French, which was a great opportunity to expand my vocabulary and get the Frenchspeaking part of my brain moving again. It had rusted up slightly after I left university.

In October, we also were taken on tours of the important judicial institutions. La Cour de Cassasation was a highlight, due to its incredible grandeur. Significantly more gaudy than Versailles, the court is not usually open to the public (including any lawyers not directly involved in cases) and therefore we were really lucky to visit it.

Spending two months in Paris is always a treat and I was lucky enough to time my visit to encounter the full range of seasons. It was 30 degrees the day I arrived and I took advantage of the swimming pool suspended over the Seine and the Jardins de Luxembourg. By the time I left, the Christmas lights were up and the vin chaud was flowing.

Another highlight was being in Paris for the nail-biting Rugby World Cup final. I decided to watch the match on the big screens set up outside the Hotel de Ville with (reportedly) 20,000 French rugby fans. I couldn’t watch for the last 10 minutes of the game – all I could think was “If they manage to win, how will I ever live this down ?” Luckily, the best team won on the day and I was able to leave the square with pride, feeling not just a little smug.

The school section of the traineeship was a wonderful opportunity to build international networks, learn more about French and European law, and learn how to view a single problem from the perspective of different legal jurisdictions and competing systems. Class discussion of a single problem proved fascinating, as many countries approached a problem from a different perspective and many obtained a fairly similar result. Then, of course, there were countries in which the relevant response depended on which religion you belonged to and the discussions became really heated.

I then spent the month of November interning at the Parisian office of Allen & Overy, in the litigation team. It was a very exciting time to be there as the firm was right in the middle of a significant expansion of its litigation and arbitration team.

This meant that I was able to work for a variety of partners on different files and attend some of the aforementioned gaudy courts to observe.

The French way of working differs significantly from ours: the three-course lunches are skipped only in times of real emergency and in some offices it is still perfectly acceptable to chain-smoke in front of one’s computer all day long.

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New Members of the New Zealand Bar Association The New Zealand Bar Association is very pleased to welcome the following new members who have joined the Association since December 2011 : Ms Maria Berryman Ms Cherie Clarke

Mr Paul Collins

Ms Elana Geddis

Ms Mania Hope Mr Murray Jordan

Wellington New Plymouth Auckland Wellington Hamilton Auckland

Mr Justin Marinovich Ms Jessica Mills

Mr Simon Mount Ms Kelly Rowell

Mr Andrew Scott-Howman Mr Darren Nairn

New Plymouth Christchurch Auckland Auckland Wellington Auckland

NZBA’s Recent Work Consultations with which NZBA is involved: Ministry of Justice: o NZBA members Helen Cull QC, Bruce Corkill QC and Vivienne Crawshaw have attended meetings with the

Ministry of Justice to discuss fixed fees for legal aid in the civil and family jurisdictions. o NZBA Criminal Committee Chaired by Stuart Grieve QC has provided feedback on the Criminal Legal Aid

fixed fees regime.

Rules Committee: o Criminal Procedure Rules o The proposed changes to the High Court Amendment Rules 2011 and District Courts (General) Amendment

Rules 2011

– NZBA President Miriam Dean QC and Council members Stephen Mills QC, Tim Castle, Dean Tobin and

Lisa Hansen; Select Committee Legal Assistance (Sustainability) Amendment Bill o NZBA member Helen Cull QC attended the Select Committee hearing on 16 February 2012 On behalf of the NZBA Council, we would like to thank these participants.

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Reforms to United Kingdom’s Civil System Aim to Provide Speedier and Cheaper Justice Up to 80,000 more cases each year will be diverted to a simple Small Claims mediation process which bypasses formal court hearings, under changes to the civil justice system in England and Wales unveiled by the Government on 9 February 2012. Justice Secretary Kenneth Clarke said that, without effective civil justice, businesses could not trade, individuals could not enforce their rights and governments could not govern.

He said that all small claims would automatically be referred to the Small Claims Mediation Service, though mediation would not be mandatory. Cases proceeding to court would not require comprehensive legal preparation.

“But individuals and businesses tell me that the civil justice system at the moment can sometimes be intimidating and that they don’t know if using the system will be worth the time, expense and hassle of going to court. I want to make the system as easy and transparent as possible. I want people to be able to resolve their disputes cheaply and simply through the courts’ very successful mediation service, and I want judges freed up to make quick and effective judgments based on the facts of a case, without unnecessary legal complication.”

“This clears the way for all claims to be handled electronically at modern centralised business centres, and to then be allocated across neighbouring courts according to demand. Some administrative work will move from judges to administrators, leaving judges to concentrate on making good decisions rather than managing cases. Restrictions will be lifted on High Court judges sitting in County Courts while waiting to take cases in the High Court.”

The announcement follows the release in March 2011 of a Ministry of Justice consultation paper titled Solving disputes in the county courts: creating a simpler, quicker and more proportionate system – A consultation on reforming civil justice in England and Wales. The document said that, despite the reforms which had followed Lord Woolf’s 1996 Access to Justice report, there were still far too many cases in which parties found themselves going to court unnecessarily and facing disproportionately high costs.

The paper said that more than three quarters – or 87,000 – of all claims allocated to the fast and multi-tracks were still settling between allocation and trial. This meant significant unnecessary costs for the parties as well as waste of court resources and judicial time. The document accordingly proposed a simplified model for road traffic accident claims, personal injury and low-value clinical negligence cases. The ministry said that there should be a simple claims procedure on a fixed costs basis, a dispute management process and fixed recoverable costs for specific case types up to £100,000, an increased small claims jurisdiction and greater use of mediation.

The release of the document was followed by a three month consultation period. The Government then spent seven months considering its response. Mr Clarke said that the majority of cases would be simplified by increasing the limit of small claims from £5000 to £10,000, with a view to a further lift to £15,000 subject to evaluation.

Mr Clarke said that the County Court system would be modernised and streamlined by the introduction of a single county court.

Other changes unveiled by Mr Clarke included improving enforcement of court decisions to ensure that more creditors received what they were owed. He said that, where a court-ordered payment by instalments plan was already in place, creditors would also be able to apply for orders to secure unsecured debts.

This would prevent debtors benefiting from the sale of properties without paying off debts. However, for their protection, debtors would no longer be at risk of losing their homes over consumer credit debts of less than £1000.

Mr Clarke said that the changes would mean that the High Court would be freed up to deal only with complex cases. The level below which non-personal injury claims could not be heard in the High Court would be raised from £25,000 to £100,000. The outdated value of property above which equity cases needed to be referred up to the High Court would be raised from £30,000 to £350,000, reflecting the rise in house prices since the level was last set in 1981.

Mr Clarke said that another initiative would be the extension of a web-based scheme which controlled legal costs for the majority of personal injury cases. Costs were pre-set in a way which encouraged early settlement. Following an evaluation of the current use of the scheme in road accident cases worth compensation of up to £10,000, the scheme would be extended to similar cases involving up to £25,000 and also to employer and public liability personal injury cases.

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Foreign Correspondent – News From Around the World ENGLAND AND WALES

Barristers’ Working Lives survey results released The Bar Council and the Bar Standards Board on 31 January 2012 released the result of Barristers’ Working Lives, the first in a planned series of biennial surveys of the Bar. The aims of the survey are to provide improved demographic data and information about the Bar, to gather insights into the working lives and employment experiences of barristers, and to gain a better understanding of career aspirations, motivations and intentions to stay in or to leave the profession.

The survey was sent to a sample of 8000 barristers and just under 3000 replied. The key findings of the survey were that 70 per cent of barristers would still opt for the Bar if they could start their careers again. Women represented 37 per cent of all respondents, and 57 per cent of those under 30. Half of employed barristers were considering, or might consider, working in some form of alternative business structure.

The survey found that, after 12 years in the profession, the number of women in practice declined. The attrition of women was much higher at the self-employed Bar than at the employed Bar. The majority of the employed Bar worked in the public sector. A quarter of self-employed barristers undertook no publicly-funded work at all, while for 43 per cent, over half of their work was publicly-funded. In criminal practice, the majority of barristers reported that 90 per cent of their work was publicly-funded.

Chairman of Bar delivers inaugural speech “Invest in the future” is the key theme for 2012 for Chairman of the Bar, Michael Todd QC, who delivered his inaugural speech on 5 December 2011. Setting out his vision for his year in office, Sir Michael emphasised to both the Bar and to the United Kingdom government the importance of maximising resources to ensure access to justice. He advocated stronger support for pro bono work, a renewed emphasis on social mobility and a more effective Bar Council as part of a more relevant, outwardlooking profession.

Sir Michael said that he had criticised the United Kingdom Government’s inadequate support of publicly-funded work, its short-sightedness and the apparently ill-informed pursuit of its approach. He said that benefits could be achieved from collaboration and proper investment in legal services. Sir Michael said that a constructive relationship was required with the Government, but he believed that this cut both ways.

“Relationships, be they business, social or domestic, require some “give and take” to make them work. Personally, I would like to see a bit more “give” on the Government’s side, for we, on our side, have certainly been giving a lot.”

Sir Michael predicted that pro bono work would play an increasingly important role, though he cautioned that it was not a replacement for a properly-funded legal aid system. He said that the legal profession needed to be seen as an accessible profession and must acknowledge the benefits that could be gained from social mobility and diversity. Sir Michael called for a co-ordinated approach to making such change.

Bar Council urges protection of private legal advice The Bar Council in February urged the Government to protect

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the fundamental right of citizens to hold private conversations with their lawyers. The call followed a report published by Her Majesty’s Inspectorate of Constabulary on the use of undercover police officers. The issue has been debated at the Committee and Report Stages of the Protection of Freedoms Bill in the House of Lords.

An amendment proposed by Baroness Hamwee at the suggestion of the Bar Council would protect legal professional privilege in all but those circumstances in which it was being abused in furtherance of criminal purposes. Chairman of the Bar, Sir Michael Todd QC, said that the report emphasised the need for stricter and more coherent rules relating to the surveillance of individuals by the state. He said that it was extremely disappointing that the Government had not, so far, taken the opportunity presented by the bill to reassert the fundamental right of individuals to consult their lawyers in private.

UNITED STATES

Attorney-General speaks to ABA summit United States Attorney-General, Eric Holder, announced two new Department of Justice programmes for indigent defence services on 4 February when he spoke to the ABA summit on Indigent Defense Improvement. Mr Holder described indigent defence services as being in crisis, stating that they were underfunded and understaffed. Presentations at the summit described the services as being ineffective in their combination of full-time public defenders and appointed private counsel of varying levels of competence and compensation.

ABA makes submissions on sentencing policies The American Bar Association on 16 February appeared before the United States Sentencing Commission to provide testimony on federal sentencing options after the case of Booker. The Association said that severity – rather than disparity – in sentencing was the most pressing problem currently facing the commission. Testimony prepared by James Felman on behalf of the ABA said that the structure of federal sentencing must not outweigh the most critical issue, which was the outcomes resulting from the system. He said that an advisory guidelines system would be the best structure to achieve the goals of the Sentencing Reform Act. Mr Felman stated that the ABA was opposed to mandatory minimum sentencing standards as an alternative sentencing structure. He concluded that restructuring the sentencing scheme in response to what were only marginally increased rates of disparity “without addressing the ever-increasing overreliance on incarceration has the feel to me of rearranging the deck chairs on the Titanic.”

Life without parole unconstitutional for young people The American Bar Association, in an amicus brief filed in January 2012 in the combined cases of Miller v Alabama and Jackson v Hobbs, urged the United States Supreme Court to rule that it was unconstitutional to give a life sentence without the possibility of parole to juveniles convicted of homicide. The Association said that neither public safety nor penal objectives would be compromised by allowing juveniles the possibility of parole.

SOURCES: Bar Council website – www.barcouncil.org.uk; American Bar Association website – www.aba.org

Rules Committee – Consultation on Criminal Procedure Rules: E-Filing Proposed The Rules Committee is seeking submissions on the draft Criminal Procedure Rules 2012 by 7 May 2012. An eight page consultation paper and draft rules were released by the committee on 20 February 2012. The paper states that the Criminal Procedure Act and 14 related amendment acts were passed in late 2011. They will commence in two stages by Order in Council. Six Orders in Council to commence certain provisions in the legislation were signed by the GovernorGeneral on 14 November 2011. Those provisions relate to suppression laws, sentence indications, bail, warrants to arrest and jury numbers.

The committee says in the paper that it expects that an Order in Council will be sought to bring into force the remaining provisions in the legislation – comprising the vast majority of the amendments – in March or April 2013. If no order is made, these provisions will take effect on 18 October 2013.

The act provides for Court Rules and Regulations. Rules are not required to support the legislative provisions taking effect on 5 March 2012 but procedural rules are required to supplement the legislative provisions commencing in 2013. The paper states that a Criminal Rules Sub-Committee was established by the Rules Committee in June 2011. It was asked to consider issues for inclusion in the rules and to develop their content in consultation with the Ministry of Justice.

The purpose of the rules is to regulate the practice and procedure of the District Courts and the High Court in the exercise of their jurisdictions under the act. It is proposed that the criminal jurisdiction of the Court of Appeal and the Supreme Court continue to be governed by the Court of Appeal (Criminal) Rules 2001 and the Supreme Court Rules 2004 respectively.

of a case management memorandum and the case review, followed by 40 working days until the trial callover. When formal statements are filed, there would be 25 working days until the trial callover.

The committee also draws attention to the issue of the forms to be used for criminal proceedings. While the draft rules stipulate what information the various documents must contain, forms for these documents are not provided in the rules. Instead, the Ministry of Justice will develop template forms for the various documents in the act and rules. The ministry will make the templates available in a range of hard copy and electronic formats, including in a manner allowing documents to be filed in court electronically.

The paper says that enabling electronic filing is a key objective of the ministry’s Electronic Operating Model project, which aims to provide for electronic filing of documents in all criminal proceedings. Phase one of the project will be to create a system for charges to be electronically filed in court by the police. That system will eventually be expanded to apply to all prosecutors.

The second phase of the project will involve the design of systems to enable any documents relating to criminal proceedings to be filed electronically in court. Phase one of the project also entails designing a system that will allow the permanent court record to be kept and maintained in electronic format.

The draft rules consist of eight parts, as follows –

The committee says that a high degree of compliance with the specified timeframes will be critical to the success of the new criminal procedure, although draft Rule 1.7 provides a discretion for the court to vary the time for doing anything if required.

An appendix at the end of the paper depicts the proposed timeframes diagrammatically. The draft rules propose that there should be five working days between the first and second appearances in the District or High Courts if initial disclosure is made at or before the first appearance. In all other cases, the second appearance should be five working days after the expiry of the applicable date for initial disclosure in section 12(4) of the Criminal Disclosure Act 2008.

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Other proposed timeframes include 45 working days between not guilty pleas and case reviews for Category 4, Category 3 jury and any other proceedings in which the Crown is prosecuting.

30 working days would be allowed in all other cases. The paper proposes that there be five working days between the filing

In addition to submissions on any aspect of the draft rules, the committee is seeking comment on any matters that counsel consider give rise to legal or practical difficulties, including the workability of any rule, or compliance with any specified requirement.

The paper states that feedback is sought on two particular aspects of the draft rules: timeframes and forms. In relation to timeframes, the committee states that one of the key objectives of the act is to reduce delay in the courts through the timely resolution of criminal proceedings and by creating efficiencies in the justice sector. To this end, a number of timeframes are specified in the draft rules, including timeframes for filing notices of response, for specified appearances, for case management and for appeals.

Part 1 –preliminary and general provisions, including those relating to extending and shortening time under the rules, custody of exhibits, and speaking Maori or using New Zealand Sign Language in criminal proceedings Part 2 – documents, filing, service and applications, including an expansive definition of the word “document” and provision for electronic filing and electronic service Part 3- commencing proceedings and preliminary steps, including a statement of the information to be included in charging documents, summonses and warrants Part 4 – procedure before trial, setting out the time for the defendant’s second appearance and specifying the information that may be required by a court before a sentence indication is provided under section 61 Part 5 –procedure for trial, specifying timeframes for pre-trial admissibility and other applications Part 6 –access to court documents, extending the Criminal Proceeedings (Access to Court Documents) Rules 2009 from indictable to all criminal proceedings in Part 6 Part 7 – permanent court record, with particular consideration given to section 71 of the Summary Proceedings Act 1957, section 353 of the Crimes Act 1961 and the Supreme Court decision in Mafart v Television New Zealand Part 8 –appeals to the District Court or High Court, including simplifying and consolidating provisions.

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Rules Committee – NZBA Submissions - Concern Expressed Over Failure of 2009 Reforms In early February 2012 the New Zealand Bar Association made submissions to the Rules Committee on the proposed High Court Amendment Rules 2011 and the District Courts (General) Amendment Rules 2011.

The submission on the draft High Court Amendment Rules 2011 was prepared by a sub-committee of the Association’s Council consisting of Tim Castle and Dean Tobin, with the assistance of Stephen Mills QC as chair of the NZBA’s submissions committee. The submission focused on grammatical and specific drafting issues.

The submission on the draft District Courts (General) Amendment Rules 2011 stated that, although the Association’s comments were focused on the proposed changes to the District Court Rules, the NZBA also wished to draw the attention of the Rules Committee to a continuing and apparently widespread concern that the changes to the rules introduced in 2009 had not achieved their intended purpose.

The submission said that the NZBA had, in its 2007 comments on the new District Court Rules, recorded the Association’s understanding that the principal purpose of redrafting the rules and providing for a different process was to make access to the District Court more accessible, cheaper and speedier. However, the Association said that there appeared to be a widely-held view that the new rules had introduced cumbersome and inefficient documentary processes that were not best suited to efficient and prompt dispute resolution in the District Court.

“The almost complete disconnect between the District Court and High Court procedures is also a recurrent complaint.”

The NZBA said that most of the changes to be introduced under the 2011 amendment rules were welcome but they did not address those more fundamental concerns.

“It is submitted that a much more fundamental rethink is required, particularly in relation to the forms and form filling for filing and service. Wherever possible the District and High Court Rules should be the same, with a

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compelling justification where they are not. An example is the (re)introduction of the summary judgment procedure. The Association considers that the District Court Rules would benefit from following exactly the High Court Rules for this procedure.”

The Association said that all of its observations on the draft rules should be considered against that point of principle.

“A fundamental review of the “pleadings process” is now required. Under the 2009 Rules, and likely to remain so with the 2011 amendments, the pleadings process has become a cumbersome form filling exercise that is not appropriate as a substitute for proper and focused pleadings.”

The submission supported the proposed reduction from 30 to 20 days of the time periods for service and giving notice. It also welcomed the proposed reintroduction of a refined summary judgment application procedure.

The Association said that, under the 2009 rules, the opportunity to pursue summary judgment had been elusive. The procedure proposed by the 2011 amendments was accordingly much-needed. However, the submission said that the District Court Rules on summary judgment should exactly mirror the generallysuccessful High Court procedures.

The Association also called for a rethink of form filling requirements, observing that the draft rules made no substantive changes to the existing provisions in that regard.

The submission said that the proposed rules would continue to encourage a convoluted, repetitive, form filling approach which was unlikely to lead to the early identification of issues. The NZBA said that the Information Capsule was a particular culprit.

The submission suggested that the committee should download the forms from the Ministry of Justice website and look at them in that form. The submission concluded that, while the changes proposed were welcome, a more fundamental rethink was both necessary and desirable.

Obituary Rt Hon Sir Maurice Casey – Judge Who Stopped Tour of South Africa Following his retirement from the New Zealand Bench, Sir Maurice sat on the Cook Islands Court of Appeal, the Supreme Court and the Court of Appeal of Samoa, and the Solomon Islands Court of Appeal. In 2000, he presided over the five-member Fiji Court of Appeal which heard an appeal from a High Court decision finding that the military’s abrogation of the 1997 Fijian Constitution was unlawful. The High Court decision was upheld by the Court of Appeal.

Sir Maurice was a member of the Court of Appeal Bench which delivered the landmark decision in New Zealand Maori Council v Attorney-General in 1987. He also delivered the decision on the appeal in the Peter Ellis case.

Rt Hon Sir Maurice Casey

Former Court of Appeal judge, Sir Maurice Casey, died on 19 January 2012 at the age of 88. Sir Maurice was best known to the public for his 1985 decision in the case of Finnigan v New Zealand Rugby Football Union, which was delivered in a glare of white-hot publicity and controversy and effectively halted the planned tour by the All Blacks of South Africa.

Sir Maurice was born in Christchurch in 1923 and became dux of St Patrick’s College in Wellington before attending Victoria University and obtaining an LLM. He served in the Royal New Zealand Naval Volunteer Reserve between 1943 and 1945, becoming a sublieutenant. On his return to New Zealand, Sir Maurice began his legal career practising in law firms in Lower Hutt and Blenheim before moving to Auckland, where he became a partner in Buddle Weir and Co. Sir Maurice was the vice-president of the Auckland District Law Society and a member of the New Zealand Law Society Council.

Sir Maurice was appointed to the Supreme Court (as it was then known) Bench and served as a High Court judge for 12 years before being appointed to the Court of Appeal Bench in 1986. He served nine years as a member of what was then New Zealand’s highest domestically-based court. Sir Maurice was appointed a Privy Councillor in 1986 and a Knight Bachelor in 1991.

In 2005, a dinner was held in Auckland to mark the 20th anniversary of the decision in Finnigan v New Zealand Rugby Football Union. Phil Recordon, who was the second plaintiff in the case alongside Patrick Finnigan, said that he was proud to have been involved in the case. Judge Recordon told the dinner that he had no regrets about being involved in a case which had as its underlying objective the destruction of the South African apartheid regime.

“When I watch television these days and see the provincial and Springbok sides filled with black and coloured players who are there on merit and standing alongside the white Afrikaners and English Boks, I know that, not only was it worthwhile, but for millions of black and coloured people in South Africa, their lives were changed for the better.”

Judge Recordon said that Ted Thomas had argued the case brilliantly and South African Presbyterian Minister, Arnold Stofile, had given evidence that had probably swayed Sir Maurice. Judge Recordon recalled that “All hell broke loose” when Sir Maurice delivered his decision on a Saturday, with media swarming everywhere, abusive phone calls and threatening letters and parcels.

Mr Finnigan told the dinner that Sir Maurice’s voice had quivered slightly as he had begun delivering his judgment.

“I thought of the title of that book by John Mulgan, Man Alone. What Justice Casey did was he helped rugby to get out of an abyss. It gave rugby a chance to clean out the old brigade and get the new involved.”

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Obituary Helen Mary Aikman QC - A Woman of Light and Grace

By Karen Clark QC with her god-parents, the Quentin-Baxters. Thus, Helen was imbued with an awareness of legal and governmental issues in the Pacific from an early age. In 1974 she graduated, aged 19, with a BA in history and politics from the University of the South Pacific.

In the early 1980s she married Jone Dakuvula. Jone and Helen had a daughter, Alisi Varani and a son Atunaisa Varani.

Helen graduated LLB (Hons) from Victoria University of Wellington in 1982 and worked with Wellington firms Findlay Hoggard Richmond (later Buddle Findlay) and Tripe Matthews and Feist. She practised as a barrister after a while and, in the late eighties, worked as a researcher at the Law Commission.

Helen Aikman QC

Helen Aikman, daughter of Professor Colin Campbell Aikman and Betty Alicia James, and sister of Celia and Hilary, was born in Wellington in December 1955. She died in February 2012. Helen’s friends and colleagues from the Pacific have mourned her death as representing “the loss of an extremely talented barrister whose affection and advocacy for things Pacific and in particular all things Samoan was very much woven into her life as it was for her family. A gentle woman of humanity and grace she was passionate about equity, fairness and justice and represented her clients with skill, commitment and an extraordinary application”.

Helen’s affinity with the countries of the Pacific and her knowledge of their law had its origins in her childhood years in Fiji. Her father, Professor Aikman, was Vice-Chancellor of the University of the South Pacific and a distinguished constitutional lawyer who, during his career, worked extensively on the constitutional arrangements of several Pacific countries. During Helen’s final year of college, which she completed in New Zealand, she stayed in another constitutional household environment

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Jone and Helen separated in the early nineties.

In 1992, Helen was admitted to the Samoan bar and travelled with her two children to take up the position of Principal State Solicitor in Samoa and head the small Crown Law Office there. In his eulogy at Helen’s service, Justice McGrath recalled that the experience was arduous. In her prosecution of serious crime and criminal and civil work in the Court of Appeal, Helen had to deal with the added complexity of customary norms which were, at times, in conflict with the human rights protection provisions in the constitution. Although Helen’s background and New Zealand court experience had given her a valuable start, Helen was very much on her own in Samoa with the responsibility for helping its courts get to grips with the principles to be applied.

In 1994, Helen returned to Wellington and became Crown Counsel in the Crown Law Office’s team responsible for Treaty of Waitangi and International Law headed then by Ellen France, now Justice Ellen France. In 1998, she became the Team Leader of the Regulatory Law Team. Tragedy struck the family around this time when Alisi contracted a rare illness.

A letter recently published in The Dominion Post wrote of Helen personifying “grace under pressure” - Hemingway’s characterisation of courage. The correspondent had been involved in litigation in which Helen appeared for the Crown. He learned during the court proceedings that Helen’s daughter

had become ill. After the case he called Helen, to congratulate her and to ask after her daughter.

Helen told him that Alisi had died.

as an advocate to identify and articulate the real principles underlying a case and to put them to the Supreme Court in a way that would help us decide it”

Helen was appointed Deputy Solicitor-General (Constitutional) in 2002. She left Crown Law in 2004 to return to the Bar. During her ten years at Crown Law, Helen represented government interests before the Waitangi Tribunal, the Maori Land and Appellate Courts, the High Court, Court of Appeal and Privy Council. Much of the litigation Helen was involved with related to sales of government assets and the restructuring of government businesses. International law issues included immigration and refugee cases at both trial and appellate level. She was counsel for the Government throughout the Foreshore and Seabed case.

Her commitment to those in need took Helen to India in 2009 to help Shabnam Ramaswamy, a woman who had abandoned her successful business life to establish a school for Delhi street children. The school was closed by the Delhi government and Shabnam and her husband Jugnu decided to set up a similar school for rural youth in Katna, West Bengal. But in 2005, just before the school was to open, Jugnu died of a heart attack, leaving Shabnam to run it single-handedly. In earlier years Helen’s family had donated to Shabnam’s charity but they had since lost contact.

Helen learned of Shabnam’s situation through a feature radio programme. She made contact with Shabnam through the programme-maker, raised funds for her in New Zealand then travelled the long way to Katna where she stayed to support and assist Shabnam for two months before returning to the orthodoxy of legal practice.

She was appointed a Queen’s Counsel and Law Commissioner in 2005.

Her collaborator in the Commission’s work on the convergence of custom and human rights in the Pacific, Justice Eddie Durie, said there were very few people who could cross cultural boundaries in the way Helen did. Helen also led the reform of the law relating to public inquiries, which resulted in a new Inquiries Bill being introduced in the House.

The ten years that followed Alisi’s devastating death coincided with Helen’s own illness from the cancer that was to take her life. Yet, during this time, Helen continued to reach out to others and to practise and exemplify the highest traditions of the Bar. In his eulogy, Justice McGrath commented on the sizeable part of Helen’s work that was for people who needed services regardless of payment.

“In her wider legal work Helen also sought to refashion the law so it would better serve the people who depend on it and she applied her extraordinary legal and person skills to this end.”

She appeared in the Supreme Court as amicus because the court recognised her “special ability

Helen’s final project was unable to be completed before she died. In 2010 she spent five months at Cambridge University on a Herbert Smith fellowship researching and writing what was to be her historical study of the Fijian constitution. Hopefully it will be continued by others.

Last Christmas, Helen travelled with Atu to Fiji. She returned less than three days before she passed away. That she managed to make the trip with Atu, and return home, was characteristic of her determination and resilience and a testament to her son, who shouldered the responsibility for his mother’s care. While we mourn the death of this peerless woman of light and grace, we celebrate the contribution she made to the law in New Zealand and the Pacific, and the difference she made to those in need.

Sources: Hon Justice McGrath; Brenda HeatherLatu, former Attorney-General for Samoa; Hilary Aikman; Katherine Baxter; Julia Maskill and Katherine Van Hale.

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Obituary George Tanner QC – Architect of the Nation’s Laws would be accessible not only to lawyers but to the wider public.

Speaking at the function to mark his retirement from the Parliamentary Counsel Office, AttorneyGeneral and Deputy Prime Minister Michael Cullen said that Mr Tanner had worked hard to make legislation accessible and had been a great champion of the Public Access to Legislation project. Dr Cullen said that Mr Tanner’s work had led to the creation of the Parliamentary Counsel Office’s Drafting Manual as well as a review of the office’s drafting by an international drafting expert. Dr Cullen said that Mr Tanner’s contribution had been important because democracy required the public to be able to understand the rules by which the country was governed.

George Tanner QC

Former Chief Parliamentary Counsel, George Tanner QC, died on 17 January 2012. Mr Tanner made a huge contribution to New Zealand law in his capacity, first, as a Parliamentary Counsel Office staff member and, subsequently, as Chief Parliamentary Counsel. He was at the forefront of law drafting in this country during the times of immense change in the 1980s and 1990s, when Parliament enacted legislation providing for state asset sales as well as for major changes in corporate law.

Mr Tanner was born in Wellington in 1946 and began his legal career in private practice before moving to the Crown Law Office. He worked at the Parliamentary Counsel Office from 1981 until 2007, serving as Chief Parliamentary Counsel between 1996 and 2007.

In addition to his skill and diligence in law drafting, Mr Tanner will be remembered by colleagues for two key projects which were close to his heart.

The first was www.legislation.govt.nz, which makes New Zealand legislation available to members of the public online at no charge. His second initiative was a keen desire to ensure that laws were redrafted in plain English so that they

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In his leisure time, Mr Tanner was known as a fanatical jogger, who refused to miss his daily run regardless of the vagaries of the Wellington weather. He and his family also enjoyed skiing, taking trips to North America to sample its skifields. Mr Tanner’s other sport was golf. He was renowned for taking his time on the golfing green so as to enjoy both the sport and the company of other players.

Mr Tanner was appointed as a Law Commissioner in 2007 and in 2008 was made a Companion of the New Zealand Order of Merit for services to the law. Commenting on Mr Tanner’s death, former Prime Minister Sir Geoffrey Palmer – who knew Mr Tanner both from the Parliamentary Counsel Office as well as from the Law Commission - said “He was a friend and a colleague. I’ll miss him.”

The esteem in which Mr Tanner was held was demonstrated by the turnout at his funeral, which was attended by Chief Justice Dame Sian Elias; Sir Geoffrey; former Governor-General Sir Anand Satyanand; New South Wales Chief Parliamentary Counsel, Don Colagiuri; the Commonwealth of Australia’s first Parliamentary Counsel, Peter Quiggin; and many members of the judiciary.

A Low Stress, Convenient Document Storage Solution for NZBA Members Here are two things that are extremely valuable: a barrister’s time and a barrister’s office space. When your chambers start to fill up with the clutter of archive boxes, files and assorted paper, you are paying a heck of a lot to store this stuff every month. Who has time, though, to clean it all up, organise transport and get it all out to a storage facility or even home to the garage/spare room? Well, now there is a service that takes all of the hassle out of the document storage process for you. Not only will they do all the heavy lifting, transport and secure storage, but the NZBA has even negotiated a big discount for members.

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2011 - 2012 COUNCIL CONTACT DETAILS from 1 October MIRIAM DEAN QC - President Ph: 0064 9 377 8959 Fax: 0064 9 377 8960 P O Box 4111, Shortland Street, Auckland, 1140 miriam@barrists.co.nz STEPHEN MILLS QC - President Elect Ph: 0064 9 307 9820 Fax: 0064 9 307 1572 P O Box 4338, Shortland Street, Auckland, 1140 stephen.mills@shortlandchambers.co.nz CATHERINE BIBBEY - South Island Vice-President Ph: 0064 3 377 5589Fax: 0064 3 365 2592 P O Box 13-868, Armagh, Christchurch, 8141 c.e.bibbey@xtra.co.nz ELLIOT HUDSON - Treasurer / Secretary Ph: 0064 7 839 6644 Fax: 0064 7 839 6610 P O Box 19252, Hamilton, 3244 elliothudson@xtra.co.nz TIM CASTLE Ph: 0064 4 471 0523 Fax: 0064 4 471 0672 P O Box 10048, Wellington tim.castle@xtra.co.nz GERARD CURRY Ph: 0064 9 377 9783 Fax: 0064 9 377 9784 P O Box 106586, Auckland, 1143 gerard.curry@argylechambers.com KATE DAVENPORT Ph: 0064 9 307 8787 Fax: 0064 9 307 8788 P O Box 141, Shortland Street, Auckland, 1140 kate@katedavenport.co.nz CLIVE ELLIOTT Ph: 0064 9 309 1769 Fax: 0064 9 366 1599 P O Box 4338, Shortland Street, Auckland, 1140 elliott@shortlandchambers.co.nz LISA HANSEN Ph: 04 914 1052 Fax: 04 473 3179 P O Box 8045, Wellington 6143 LisaHansen@barristerscomm.com PAUL MABEY QC Ph: 07 5771091 Fax: 07 5771092 P O Box 13199, Tauranga 3001 pgmabey@xtra.co.nz DANIEL PANNETT - Juniors Barristers Representative Ph/ Fax: 09 307 9826 PO Box 4338 Shortland Street, Shortland Chambers, Levels 10-13, 70 Shortland Street, Auckland 1140 DEAN TOBIN Ph: 0064 3 477 8781 Fax: 0064 3 477 8382 P O Box 1424, Princes Chambers, Princes Street, Dunedin, 9054 dean.tobin@princeschambers.net MALCOLM WALLACE Ph: 0064 3 379 6976 Fax: 0064 3 365 2592 P O Box 13254, Armagh, Christchurch, 8141 malcolmwallace@bridgesidechambers.co.nz JUSTIN SMITH Ph 0064 4 9171080 Fax 0064 4 4729029 P O Box 5722 Wellington 6145 justin.smith@stoutstreet.co.nz

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