At the Bar July 2015

At The Bar July 2015

The New Intervention Rule Indemnity Insurance Capitalising on Discovery

From the President INSIDE THIS ISSUE Pg 2 - From the President Pg 3 - The New Intervention Rule Pg 9 - Indemnity Insurance - The Claims Process Pg 12 - Sir Thomas Munro Gault KNZM QC PC Pg 13 - Sir Peter Alderidge Williams KNZM QC (1934 – 9 June 2015)

Pg 14 - John Marshall QC Pg 14 - New Members Pg 15 - What (Not) to Wear in Court Pg 16 - History of Legal Regalia for Barristers Pg 17 - When “Happily Ever After” and Retirement Living Part Company Pg 18 - Mobile Business Efficiency: Work Smarter, Not Harder Pg 19 - Time Recording - Can New Tech Help?

Pg 20 - Capitalising on Discovery – Practical Advice to Help You Gain the Most From the Process Pg 22 - Petrolhead’s Corner – Targa Bambina Pg 24 - Are Your Office Walls Screaming “I Don’t Care”?

Pg 26 - Having a Website and Keeping it Up to Date Pg 28 - NZBA Council The views expressed in the articles in this publication may not necessarily be the views of the New Zealand Bar Association.

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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Paul Mabey QC Intervention Rule The changes to the Intervention Rule come into effect on 1 July 2015. The later article outlines the approach the NZBA took to the abolition/retention issue and also addresses the practical impact of the changes.

Annual Conference This year’s conference will be in Napier on 7-9 August. There is an impressive line-up of speakers from the Judiciary, Academia and the profession addressing the conference theme; Access to justice – challenges for the legal profession.

There will also be presentations on practical issues concerning such things as expert witnesses, the role of junior barristers and hints on advocacy. On the social side there are dinners at the Art Deco Masonic Hotel and the Mission Estate. The latter will include pre-dinner wine tasting and a comedy Bench v Bar debate.

Our conferences provide excellent opportunities to spend time with friends and colleagues, to learn and discuss matters of importance to us all. I encourage you to consider attending.

NZBA As Intervener We were recently invited to present written submissions and appear before a full bench of the permanent Court of Appeal which was hearing two separate appeals involving allegations concerning Counsel competence. The Court was concerned to review the rule in R v Clode.

The Criminal Committee prepared comprehensive written submissions which were addressed orally by Jonathan Eaton QC, assisted by Vicki Scott.

Our appearance was by invitation from the Court and there will no doubt be future cases where we will be invited to appear. There may also be cases that come before the Courts that members are aware of involving issues of general importance. For example – access to justice, guideline judgments, constitutional issues, Bill of Rights and professional rules and regulations. If there are such cases where members consider that we could properly become involved, please contact the NZBA Executive Director Melissa Perkin. We can then assess if we could make a useful contribution and if so, we can offer to do so.

National and Regional Young Lawyers Mooting Competitions NZBA Council representatives Alex Sinclair, Stephanie Thompson, Hamish McQueen, Matthew Smith and Malcolm Wallace are assisting with the running of the Regional Young Lawyers Mooting Competitions recently held in Auckland, Wellington and Christchurch. The winners of those competitions will then participate in a national mooting competition.

Sentencing Advocacy Competition We sponsor this annual event which was held at the Auckland High Court in March. As with the mooting competitions it provides a valuable and practical learning opportunity for young lawyers. Training

is becoming an increasing focus of the NZBA and members will be aware from the website of the extensive programme being developed by our Training Committee.

Recent Submissions and Consultations The Council, Criminal and Law Reform Committees as well as a number of members who work in the family jurisdiction have assisted in recent consultations and submissions including: • Ministry of Justice consultation on proposed changes to the legal aid audit and complaints procedures; • Submissions and appearance in the Court of Appeal on R v Clode review; • Submissions to the Rules Committee on persons in custody who attend sentencing by AVL link;

• Ministry of Justice consultation on domestic violence; • Submissions to the Rules Committee on access Court documents in civil and criminal proceedings; • Representations to the Law Commission on the national security information in evidence in proceedings; • Submissions to the Minister of Housing on

amendments to the Construction Contracts Act; and • Dealings with the Ministry of Justice on the extensive Courts Modernisation Bill.

Obituaries Our sympathies go to the family and friends of the late Sir Thomas Gault QC, Sir Peter Williams QC and John Marshall QC.

The New Intervention Rule Because of the importance of the intervention rule for members, the NZBA has provided the following article for their information. This is not a substitute for reading and familiarising oneself with the relevant Rules. The NZBA thanks in particular three former members of the Bar Council, Chris Gudsell QC, Stephen Mills QC and Miriam Dean QC, for the sterling work put into this project over the years and for their contributions and review of this article.

Following an extensive consultation and review process, on 1 July 2015 the long awaited changes to the intervention rule comes into effect. From that date, barristers are able to apply to the Law Society for approval to take direct instructions in certain situations.

Accepting direct Instructions Barristers will need to ask themselves two questions before accepting direct instructions. The first is whether the instruction falls within an exception to the rule. If the answer to this is no, a solicitor will need to be instructed.

The rule continues to recognise the essential distinguishing feature between practising as a barrister and as a barrister and solicitor and preserves that distinction, but recognises that with particular areas of work – principally family and criminal – there is less need for an instructing solicitor. Importantly, the rule generally emphasises the need for instructing solicitors once a matter is in Court, apart from the family and criminal law exceptions. There is also an overriding obligation on counsel to consider the best interests of the client in acting, or continuing to act, without an instructing solicitor.

If the answer is that the instruction does some within an exception, a further question to be asked is whether direct instructions should be accepted? This is a more complex issue and involves a judgment call. This is discussed further below.

In this way the new rule stresses the continuing importance of the barrister’s role as an independent advocate.

In practical terms, lawyers can choose whether to practice at the independent bar or in a firm. Clients in turn can choose to go to litigation specialists in a firm, or request a barrister sole. But those lawyers who have chosen to practice as barristers sole have elected to be bound by the intervention rule. That is their choice. They in turn must accept the responsibilities and limitations that choice brings, including with the new rule.

The new r 14.5.1 Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 specifies that direct instructions can be accepted where the barrister is instructed or appointed by any of the following: (a) a person acting in a judicial or quasi-judicial capacity; (b) a person acting as an arbitrator, mediator, or in any similar capacity; (c) a court,[this includes tribunals under r 1.2] (d) the Law Society; (e) a registered patent attorney; (f) a member of the legal profession in an overseas country; (g) an Official Assignee; (h) a body, officer, or person approved by the Law Society under r 14.6, subject to restrictions and/or terms and conditions as the Law Society determines.

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Some of the above exceptions reflect exceptions in current r 14.6. This part of the rule is principally focussed on entities that instruct directly1.

The new r 14.5.2 sets out further circumstances in which a barrister can receive direct instructions. Here the focus is on the type of work. Again, some of these reflect existing exceptions but, in some cases there is further clarification. Rule 14.5.2 includes where a barrister is instructed to act in the following capacities: (a) in a judicial or quasi-judicial capacity or as counsel to assist any court; (b) as an arbitrator, mediator or in any similar capacity; (c) as a revising barrister pursuant to any enactment.

This work will be rarely performed2; (d) – (h) – new categories (see below); (i) providing a legal opinion to a non-lawyer. Caution needs to be exercised as the duty to apply the interests of justice and best interest of the client test applies in this situation; (j) as a duty lawyer; (k) providing pro bono assistance to a non-profit legal advice service. An example of this would be assisting with Community Law Centres. It is important to note that the mere fact that work is undertaken on a pro bono basis will not exempt a barrister from the intervention rule. This category is limited to legal services operating on a non- profit basis; (l) as a specialist advisor for the Ministry of Justice; (m) in a refugee status matter under the United Nations Convention on the Status of Refugees.

While this includes appeals from the Immigration and Protection Tribunal to the High Court, it is limited to refugee status matters. General immigrations matters (for example, deportation) are subject to r 4.5.1(h); (n) representing a client under the Mental Health (Compulsory Assessment and Treatment) Act 1992; (o) representing a prisoner in an internal disciplinary hearing; (p) moving the admission of a person as a barrister and solicitor.

New categories for direct instructions It is essentially r 14.5.2 that provides for new categories for direct instructions. These are defined by reference to the ‘type of work’ and ‘forum’. There are, however, some important limitations, as identified in the adjacent table.

Direct Instructions categories

Limitations - when an instructing solicitor is required

Criminal - Representing a person charged with any offence – r 14.5.2(d)

• Prosecutions by the Serious Fraud Office, the Financial Markets Authority or the Commerce Commission

Legal Aid – representing any person who has been granted or has a pending application for civil and family legal aid under the Legal Services Act 2011 – r 14.5.2(e). This includes prosecutions by the Serious Fraud Office, the Financial Markets Authority or the Commerce Commission Family law matters that are capable or were initially capable of being brought within the Family Court jurisdiction – r 14.5.2(f)

• If the matter involves complex property issues.

• Transfers or assignments of any interests in land cannot be carried out by a barrister sole (see r 14.2(b))

Employment law matters before the Employment Relations Authority (ERA) and matters that progress from the ERA to the Employment Court – see r 14.5.2(g)

• Matters that involve proceedings in the Employment Court in the first instance3 • Appeals to the higher courts

Civil matters (excluding family and employment matters) which are not proceeding before the, Supreme Court, the Court of Appeal, the High Court, or a District Court. The rule therefore now does not apply to proceedings before (for example) the Land Valuation Tribunal, Waitangi Tribunal, Accident Compensation Appeals Authority; examples of the latter include the Environment Court, Māori Land Court

• Proceedings in the District or High Courts, Court of Appeal or Supreme Court •Under r 14.5.2(h) while a barrister can act in civil matters up to the time they are filed in the District or High Courts, Court of Appeal or Supreme Court, an instructing solicitor is required from the point proceedings are initiated in those courts4

Refer to the “Tree Diagram” accompanying Dean, M. et al, “The New Intervention Rule – what you must know” NZLS CLE Ltd (2015) for help in deciding if a barrister is able to take instructions direct or not.

2 Ibid p4.

3 First instance proceedings include: tort proceedings including those in relation to lock outs and strikes (ss 99 and 187 of the Employment Relations Act 2000); judicial reviews (s 194 of the Employment Relations Act 2000); grant of an injunction under s 100 of the Employment Relations Act 2000); issuing of entry warrants (s 231 of the Employment Relations Act 2000); and offences against the Act such as obstructing a Labour Inspector (ss 187 and 235 of the Employment Relations Act 2000).

4 Dean, M. “Civil Litigation” LawTalk no. 866 5 June 2015 p9 1

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All of these requirements are overlaid by the fundamental obligation to decline, or discontinue acting if the barrister considers it would be in the best interests of the client or justice that an instructing solicitor be retained.5 This applies to some of the exceptions, not all.6 Qualification for direct instructions under r 14.5.2(d) to (h): To qualify to take direct instructions under r14.5.2(d) to (h), barristers must fulfil three conditions. They must: (i) be practising on own account as a barrister sole (r 14.7.1); and (ii) have completed the prescribed training requirements (r 14.7.2); and (iii) have satisfied the Law Society that he or she is a suitable person to accept direct instructions (r 14.7.2).

In addition, the barrister must inform clients in writing of: a)

b) c)

capacity and experience in performing the requested service; and advocacy experience as a barrister; and any disadvantage which the barrister believes may be suffered by the prospective client if no instructing lawyer is retained.

It is important that barristers do not oversell their expertise and experience and risk claims of misleading conduct.

Applying for Approval: The forms for applying for approval can be found at https://www.lawsociety.org.nz/for-lawyers/regulatoryrequirements/intervention-rule-changes/taking-directinstructions. The training requirement is satisfied by completing the NZLS CLE Ltd Intervention Rule Webinar or by having done the equivalent module in Stepping Up: Foundation for practising on own account (available post 1 July 2015). To satisfy the third condition, the Law Society requires the barrister to disclose upheld complaints and any disciplinary history and to advise the Law Society of arrangements that that they have in place for running their practice if they become incapacitated or unable to run their practice. In determining applications, the Law Society will apply the LCA’s purposes, namely protection of consumers of legal services and the maintenance of confidence in the provision of legal services.

Should direct instructions be accepted?

Even if a barrister can in theory take direct instructions, practical and ethical considerations might tell against doing so. A barrister will need to consider whether he or she has expertise and experience to act in a matter 5 6 7

without an instructing solicitor. As already noted, r 14.8 says that a barrister must not accept direct instructions if he or she considers that, in all the circumstances, it would be in the best interests of the client or in the interests of justice for an instructing lawyer to be retained. Clearly, it is not in the best interests of the client or justice if the barrister does not have the expertise or experience to act in a matter without an instructing solicitor. This decision needs to be made up front. It is a key caveat.

Other examples where it may be contrary to the interests of the client or justice include: • Where there are onerous document management functions, including discovery; • Where the size and scale of the case requires several lawyers acting concurrently. Rule 3, relating to diligence and timeliness might apply here; • Where use of a solicitor would result in lower costs to the client (for example, where junior staff should be used to handle some tasks). In considering this aspect, barristers should remember their reasonable fees obligations under r 9; • Whether there is a risk that the barrister’s

independence may be compromised, including where the barrister may be required to give evidence as a result of authoring correspondence of a contentious nature.

The interests of justice is a concept that reflects the tension between counsel’s duty to the Court and the administration of justice, against his or her duty to follow a client’s instructions and to “fearlessly raise every issue, advance every argument and ask every question, however distasteful”7 which the lawyer believes will help his or her client. Where, for example, a barrister’s independence is being compromised, and a distance is required from the client, it may be necessary to have an instructing solicitor.

Equally, if there is a danger of the barrister’s obligations to the Court being compromised, this might well require consideration of an instructing solicitor.

If a barrister has accepted direct instructions, r 14.9 specifies that he or she must not continue to act if at any stage it is considered that, in all the circumstances, it would be in the best interests of the client or in the interests of justice, for an instructing lawyer to be retained, but the client is not prepared to retain one. This situation will constitute good cause for terminating the retainer under r 4.2(c).

Once an instructing solicitor has become involved, a barrister must comply with her/his obligations pursuant to r 14.11 to keep the instructing solicitor reasonably informed of the progress of the brief.

r 14.8 discussed further below.

Refer to the “Tree Diagram” referred to at n1 supra.

Rondel v Worsley [1969] 1 AC 191, 231 (HL) per Lord Reid.

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Client Care obligations Some barristers may already be providing clients with detailed client care information. New r 3.4A, r 3.5A and r 3.6A set out the information that barristers must now provide prior to commencing work. This only applies if the barrister is acting on direct instructions. These include (r 3.4A): (a) The basis on which the fees will be charged, and when payment of fees is to be made. (b) The barrister’s professional indemnity arrangements. This obligation is met if it is disclosed that the barrister holds indemnity insurance that meets or exceeds any minimum standards set by the Law Society. If a barrister sole is not indemnified, this must be disclosed in writing to the client. (c) The fact that the Lawyers’ Fidelity Fund does not provide any cover in relation to a barrister as he or she does not hold client’s funds. (d) The procedures in the barrister sole’s practice for the handling of complaints by clients, and advice on the existence and availability of the Law Society’s complaints service and how to contact the Law Society to make a complaint.

This applies only on the taking of direct instructions.

Prior to undertaking significant work under a retainer, the barrister must provide the client with a copy of the client care and service information set out in the rules, and any fair and reasonable provision in the retainer that limits the extent of the barrister sole’s obligation to the client or limits or excludes liability (r 3.5A). If the information provided under r 3.4A or r 3.5A becomes inaccurate in a material respect, the barrister must update it “with due expedition” (r 3.6A).

Dealing with client money Under r 14.2(e) a barrister cannot operate at trust account. Fees paid in advance must be held in trust (see r 9.3 and reg 9 and 10 Lawyers and Conveyancers Act (Trust Account) Regulations 2008). The position therefore remains that unlike solicitors, in general a barrister cannot take fees in advance of completion of work or hold sums as security for fees.

Rule 14.10 allows for money paid in advance to be held in a trust account of a fund holder who is either a practice (meaning a law practice) or a person approved for the purpose by the Law Society. Funds must be held and dealt with in accordance with terms prescribed by the Law Society.

However r 14.10 specifies that it applies to direct instructions under r 14.5.2(d) to (i). It does not clarify the position in respect of other direct instruction categories.

In these cases, funds will need to be held in a solicitor’s trust account.

One consequential change is the effect on the liability for payment of fees in a direct instruction situations. The amended rules appear to contemplate a contractual relationship between the barrister and the client (see especially the reference in r 3.5A to “undertaking significant work under a retainer”). In turn, this may change the traditional position where a barrister could not sue for his or her fees.

Barristers should therefore ensure that the terms of engagement specify that their services are provided under a contract of retainer and that their fees are recoverable in law.

Other considerations Where direct instructions are accepted, barristers will need to consider all aspects of their practice management such as: Incapacitation or inability to run the practice: this may be for a limited period (such as during an illness) or on a permanent basis, and it covers suspension or striking off. A barrister will need to ensure that someone can take over (inter alia): ongoing instructions; disposing of open files; dealing with closed client files; notifying the Law Society where necessary; outstanding invoicing issues etc. Barristers should therefore consider appointing a colleague to deal with these issues8.

Client records: under direct instruction the responsibility for client records falls directly on the barrister. The client care information will need to specify which documents will be the client’s property, which will be retained by the barrister, the client’s ongoing rights to information held by the barrister and how documents will be held on the termination the retainer. There are also regulatory and statutory requirements as to how long records should be retained. The Law Society provides guidance on this at: www.lawsociety.org.nz/__data/ assets/pdf_file/0003/69762/Ownership-and-retention-ofrecords-opinion-Apr-2014.pdf9.

Disaster recovery: Most businesses have a disaster recovery plan in place. This can include electronic storage of backup files, a record of passwords and IDs, through to checklists of who to contact for help in the event of a disaster10. A disaster may not be or an obvious kind, such as an earthquake. It could include a virus which destroys computer records and makes it impossible to practice for a period of time. Aside from insurance arrangements (including cyberinsurance) barristers should consider the need to have a plan in place to continue client work without significant interruption.

A good summary of considerations is available at http://my.lawsociety.org.nz/in-practice/practice-management/practice-management-advice/what-to-keep-inmind-when-selling-or-closing-a-law-practice.

9 Beck, Andrew “Ownership and retention of records on termination of retainer” Opinion provided to the New Zealand Law Society April 2014.

10 For more information see http://my.lawsociety.org.nz/in-practice/practice-management/practice-management-advice/disaster-recovery-plan-review.

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BILL OF RIGHTS SEMINAR Sponsored by

Presented by: The Chief Justice, Rt Hon Dame Sian Elias GNZM, Rt Hon Sir Geoffrey Palmer QC Dr Andrew Butler (partner, Russell McVeagh) & Dr Gerard Curry (Chair) 4:30pm – 6:30pm | 20 August 2015 | Wellington | CPD: 2 Hrs

This year marks the 25th anniversary of the New Zealand Bill of Rights Act 1990 (NZBORA), the 40th anniversary of the Treaty of Waitangi Act 1975, the 175th anniversary of the signing of the Treaty of Waitangi and the 800th anniversary of the Magna Carta. The focus of this seminar is on the practical use of NZBORA and its increasing relevance to litigation. Topics discussed will include: • NZBORA in the context our legal system • Its relationship to the Treaty and use in considering Treaty issues • Use of NZBORA as a general statute • Use of international instruments • Statutory interpretation and NZBORA • Discrimination as a concept After the seminar there will be a reception to celebrate the forthcoming publication of the new edition of Dr Andrew Butler and Dr Petra Butler’s book “New Zealand Bill of Rights Act: A commentary” (LexisNexis 2015).

Seminar attendees will receive a discount on any purchase. Members who have subscribed for the NZBA e-Library package receive a considerable discount on purchases of texts.

LEARNING OBJECTIVES:

• Understanding of the increasing importance of the NZBORA in a wider range of litigation • Better awareness of statutory interpretation implications • Knowledge of linkage with Treaty issues

LEARNING OUTCOMES

• Be in a better position to advise clients on NZBORA and Treaty issues • Be more aware of possible arguments which could be run in a proceeding • Apply better statutory interpretation techniques.

VENUE DETAILS:

Russell McVeagh, Level 24, 157 Lambton Quay, Wellington Livestream – At your desk

TICKETS (GST incl):

NZ Bar Association junior members (0-7 years) $95 NZ Bar Association members $115 Non-members $135 Please enquire for group rates.

REGISTRATION: To register online: Visit the NZBA Website (www.nzbar.org.nz) - Calendar of Events – Bill of Rights Seminar To register manually: download a registration form from the website and email it to nzbar@nzbar.org.nz or fax it to +64 9 303 4516.

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Indemnity Insurance - the Claims Process

By Mark Rogers* Entering into a claim for the first time can conjure up feelings of stress in the best of us. Your reputation and standard of work as a barrister are being questioned.

Your confidence is taking a hit and you are asking, “Did I cross all the ‘t’s and dot all the ‘i’s?”

give rise to a claim or when a claim is actually made, is the policy that responds. This makes it very important that you notify Marsh of a claim or circumstance as soon as possible and during the policy period.

The concept of fighting legal action, based on the quality of your professional service, can be particularly intimidating even for the most experienced barristers.

This is where the Marsh Claims Practice brings additional value to your insurance policy.

How to notify?

Contact Marsh. In the first instance send us an email summary of the notification including any supporting documentation and if you are unsure, just pick up the phone and call us. We can then direct you on what we need and reassure you that we will be taking care of you throughout the process.

We recognise that the robustness of any insurance programme is demonstrated by its response to claims, and we are proud to be one of the only broker companies in New Zealand that provides a dedicated team of experienced claims professionals to all our clients.

Our Claims Practice was established to advise and assist clients for the successful resolution of claims. We have two dedicated senior claims advocates with substantial experience in claims advocacy roles, who are trained in the insurance industry and hold strong relationships with the New Zealand Bar Association insurers.

Their skills provide an edge for the early resolution of claims as they can anticipate issues that may arise and develop strategies to respond to them.

As with most things in life, making a claim or notification can be simple if you know the processes to follow. In order for New Zealand Bar Association members to get the most out of our claims practice it is important to know how and when to make a notification.

When to notify?

The simple answer is to notify as soon as practicable and during the policy period. Marsh always advises clients: ‘If in doubt, notify’.

Through the NZBA facility, members have two main policies: Professional Indemnity and PrivateEdge. Both policies are written on a “claims made” basis (apart from the General Liability cover provided under PrivateEdge).

“Claims made” means that the policy in place at the time you first become aware of a circumstance which may

Policy terms and conditions require you to notify insurers in writing. Please ensure you forward all correspondence relating to the notification either to your Marsh representative or go directly to our Claims Practice (their contact details are included at the end of this article).

What else should you know?

There is a saying “you don’t know what you don’t know” and this applies to insurance too. Marsh work in the industry - so what seems like normal practice for us can be quite out of the ordinary for someone who hasn’t had to make a claim. In a claim situation it is important to remember not to prejudice yourself or your insurers as this could result in breaching the terms and conditions of your policy wording, potentially leaving you uninsured or with costs that won’t be reimbursed.

Here are a few pointers to protect yourself and your insurer’s position: • Do not admit liability.

• Do not instruct counsel or take steps to defend a claim without prior consent from your insurer.

• Do not send a response to complaints or demands without prior consent from insurers.

• Do not settle any claim without prior consent.

• Do not hand over your original file without taking a photocopy first.

• It is also advisable not to mention you have liability insurance. This tends to make people think you have deep pockets.

With all situations being unique, sometimes these pointers

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won’t apply but if you contact Marsh before you do anything we can advise you on the best course of action.

So, you have followed all of the above and you have notified Marsh but what happens next?

Step 1 Once one of our claims advocate receives the details of your claim, they will review your notification and notify insurers on your behalf. Our claims advocate will also contact you to discuss the notification or claim before notifying the insurer if necessary.

Your insurers may offer legal assistance at this stage but only if the circumstances warrant such representation.

Insurers may also advise steps to mitigate or avoid any potential claim. It is better to try and stop or mitigate a claim at an early stage as it may not only save time and money but also result in less stress for you. It is very important not to undertake any actions yourself to mitigate a claim without discussing it with your insurers first.

Step 2 At this early stage it is likely that indemnity will continue to be reserved pending a full investigation by your insurers.

This usually takes place if and when a panel solicitor or barrister is appointed.

From this point your claims advocate will continue to work with you, your insurer and appointed solicitor or barrister until the conclusion of the claim.

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Step 3 There may also be a third step for some if there are any issues.

In this situation your insurers will contact Marsh to discuss any indemnity concerns and any potential next steps. One of our claims advocates will contact you to discuss this and raise any concerns you may have before any further action is taken.

As with any process this is just a guide on how things should work but all circumstances are unique and things might happen slightly differently. The important thing to remember is that Marsh is here to help and make things easier. So if you have any questions, please don’t hesitate to contact us. * For more information please contact Mark Rogers | Risk Advisor - Finpro mark.rogers@marsh.com DDI: +64 9 928 3056 Fleur Goodyear | Senior Claims Advocate fleur.goodyear@marsh.com DDI: +64 9 928 3160 Sheetal Prasad | Senior Claims Advocate sheetal.prasad@marsh.com DDI: +64 9 928 3041

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Obituaries The legal profession has recently lost three highly respected senior members.

Rt Hon Sir Thomas Munro Gault KNZM QC PC 1938 - 2015 The New Zealand Bar Association notes with sadness the passing of former Court of Appeal President and inaugural Supreme Court justice, Sir Thomas Gault. Sir Thomas died in Auckland on 19 May 2015, aged 76.

Honours 2009 he accepted re-designation of his DCNZM to a Knight Companion of The New Zealand Order of Merit following the restoration of titular honours by the New Zealand government.

Sir Thomas Munro Gault was born in Wellington in 1938.

After attending Wellington College, he studied law at Victoria University College, graduating LLB in 1961. He completed his LLM in 1963. He had joined A J Park & Son in 1961 and became a registered Patent Attorney in 1963. He quickly became a partner at A J Park and was known for his commercial and intellectual property background. In 1998 he was appointed a Member of Honour of the International Association for the Protection of Industrial Property. In the 1980’s he presided over an Intellectual Property advisory Committee appointed by the Minister of Justice.

Sir Thomas was known for his love of golf. Aside from having won the New Zealand Universities Championship in 1958, he was awarded Blues while at university and in 2005 he became the first New Zealander to be club captain of the Royal and Ancient Golf Club of St Andrews. He was the patron of New Zealand Golf, the governing body for golf in New Zealand responsible for fostering and developing the game.

In 1981 Sir Thomas joined the independent Bar. He was appointed as Queen’s Counsel in June 1984 and three years later became a High Court Judge. In 1991 he moved to the Court of Appeal and succeeded Sir Ivor Richardson as its President in 2002. On the establishment of the Supreme Court in 2004, Sir Thomas was one of the first judges appointed to New Zealand’s highest court. Sir Thomas chaired the establishment committee of the New Zealand Institute of Judicial Studies (the professional development arm of the New Zealand judiciary) and was Chair of that Institute’s Board for the first four years of its operation. Sir Thomas was also known as the Consulting Editor of the well-known publication Gault on Commercial Law. Sir Thomas was appointed as a member of the Privy Council of the United Kingdom in 1992 where he sat on occasion until the establishment of the Supreme Court.

He served as a non-permanent judge of the Court of Final Appeal in Hong Kong. He was also appointed a justice of the Supreme Court of Fiji in 2002.

In 2001 Sir Thomas was made a Distinguished Companion of the New Zealand Order of Merit for his services to the judiciary. In 2003 he was appointed an Honorary Bencher of the Inner Temple. In the Special

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Commenting on Sir Thomas’ death, the Attorney-General Christopher Finlayson said that Sir Thomas was one of the great leaders of the New Zealand legal profession.

“He was a distinguished member of the judiciary and a highly respected practitioner, particularly in the areas of intellectual property and competition law,” Mr Finlayson said. “One can look back at the life and career of Sir Thomas and see that his contribution to this country in a number of fields was outstanding”.

Sir Thomas is survived by his wife Barbara and his son Ian, Ian’s wife Sue and their children Elizabeth and Madeleine.

Sir Peter Alderidge Williams KNZM QC (1934 – 2015) The New Zealand Bar Association extends its sympathies to Lady Heeni Phillips-Williams and Sir Peter William’s family following his death in Auckland on 9 June 2015.

In a moving eulogy, his friend since their days at the Feilding Agricultural High School, Sir Ted Thomas, said it was fitting that Peter had died on the very day 800 years ago that King John and his Barons at gathered at Runnymede to work out the terms of Magna Carta. Sir Ted said “No defence lawyer could lay better claim to have lived and breathed his working life in defence of the venerated basic tenets of that Charter than Peter Williams; that no person be deprived of their liberty other than by the lawful judgment of their peers, and that no person be denied justice or right. He strenuously fought for the liberty of his clients before juries of their peers.

He battled, and battled forcefully, on their behalf against the greater resources and might of the state. He believed fervently in justice and the basic tenet that no person was to be denied justice before the law”. In the pursuit of these tenets, Sir Ted said, Peter’s preparation had been meticulous and exhaustive, his strategy well thought out and executed, his clients’ interests pursued with vigour and fearlessness, and his advocacy second to none. He was, he said, the greatest defence lawyer of our time and of all time.

Sir Peter grew up in Fielding where he had a Methodist upbringing. He played a lot of sports and described himself as a “rugged country boy”. As a young man, he spent a short period in prison after he rode a motorcycle around a square in Fielding and a magistrate sentenced him to 10 days. This was to have a lasting effect on his later career. He said that he learnt a lot from prison: he heard the screams at night and felt the claustrophobia, he saw the mentally defective who were incarcerated and the bullying. He recommended that Judges should go into prison for a month so they could understand what they were doing when sentencing defendants.

Sir Peter began his legal studies at Victoria University with Sir Ted Thomas, before moving on to Law School at Canterbury University. Towards the end of his studies he moved to Auckland and graduated with an LLB from Auckland University in 1960. He began his career acting for the underdog. In the 50 years of legal practice that followed, he appeared in over 100 murder trials. A number of his high-profile cases have become part of New Zealand’s criminal trial folklore, including defending Mr Asia, Terry Clark and the Bassett Rd machine gun murderer, Ronald Jorgensen. Sir Peter was also involved

in having Arthur Allan Thomas’ conviction for the murders of Harvey and Jeannette Crewe overturned.

Sir Peter was appointed a Queen’s Counsel in 1987 and a Knight Companion of the New Zealand Order of Merit in the 2015 New Year Honours for his services to the law.

Sir Peter was known for his social conscience, from sailing his yacht to Muroroa in the 1990’s to protest French nuclear testing through to battling for penal reform. Sir Peter was a passionate advocate for the humane treatment of prisoners. For 30 years he headed the Auckland branch of the Howard League for Penal Reform, a charitable organisation which aims to reduce the prison population, reduce recidivism rates and help reintegrate prisoners into community. He resigned from this position in 2011 to establish the Auckland Prison Reform Society.

In a 2014 Radio New Zealand interview, Sir Peter commented that he did not look back so much as ahead.

There were so many things he wanted to achieve, such as the abolition of D Block and solitary confinement and the cruelty in some of our prisons. Sir Peter said that for some who had committed heinous crimes, prison was the place to be. However to actively reduce crime it was necessary to look at and control the causes of crime, such as alcohol or gambling.

He also expressed the view that our criminal code was being diminished by reforms such as the abolition of the provocation defence, the longer sentences and the “three strikes” reforms. “These things are de-evolution and we are going backwards” he said. Sir Peter commented that “we are so lucky in New Zealand to have the rule of law”, but that we must keep it and not diminish it. He was scathing of the Glenn report and its recommendations to reverse the onus of proof. He believed that many of the recent reforms were likely to dismantle the justice system.

Sir Peter also spoke of his love for the law and the theatre of it, particularly the drama of the ornate No. 1 Courtroom in Auckland, where he would wait for the final address to “unleash” himself on the jury. He said it was a wonderful experience and he had missed it since he had retired.

Sir Peter was also an author, having published five books. His last book, “The Dwarf that Moved”, was published in 2014, received the New Zealand 1990 Medal. The book is a reflection of his life in the law.

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John Marshall CNZM QC The NZBA President and Council offers its sympathies to the wife and family of John Marshall CNZM QC. Mr Marshall died at home on 14 June 2015, aged 68, after battling a brain tumour for the last 11 months.

Mr Marshall, the son of former New Zealand Prime Minister Sir Jack Marshall, was admitted to the bar in 1969. He was a litigation partner at Buddle Findlay from 1975 – 1997 before moving to the independent Bar in 1998. In 2007 he was appointed Queen’s Counsel. His practice spanned a wide range of areas from commercial and property matters through to Treaty claims and Fisheries Act cases.

Mr Marshall was an active leader within the profession.

He served as President of the Wellington District Law Society in 2003-2004 and then as President of the New Zealand Law Society from 2007 – 2010. He was known for his work as an arbitrator and mediator, and chaired the Appeals Council and Admissions Appeals Tribunal of the Institute of Chartered Accountants of NZ. He was also a member of the Executive of the South Pacific Lawyers Association, and Chair of the Wellington College Foundation. Mr Marshall had himself been head prefect of Wellington College in 1964, and had served on the Board of Trustees.

changes resulting from the introduction of the Lawyers and Conveyancers Act 2006 and its coming into force in 2008. NZBA President, Paul Mabey QC, acknowledged the contribution of Mr Marshall during this transition. His breadth of understanding of legal services and the way that they were regulated was invaluable to the transition.

His guidance at this time was greatly appreciated by the profession.

Mr Marshall was known for his five year role as Chief Commissioner of the Transport Accident Investigation Commission. He was involved in prominent cases such as the Rena investigation, the Carterton balloon disaster and the Easy Rider fishing boat tragedy. He retired from that position in March 2015.

He was, according to Knox Church Dunedin minister, Kerry Enright, “a significant contributor to the national life of the Presbyterian Church in New Zealand”. Mr Marshall convened the Book of Order and Judicial Reference Group of the Presbyterian Church.

Mr Marshall was made a Companion of the New Zealand Order of Merit in 2015 for services to the law. He is survived by his wife Mary and their three children, John, Annabel and Clementine, and granddaughter Rose.

During his time as President of the Law Society, Mr Marshall oversaw the implementation of the radical

New Members Kent Arnott John Blincoe Andrew Brown Sam Davies Sasha Dolby Stephen Ebert Louise Garthwaite Aniva Hansen Jack Hodder QC Iain Hutcheson Julie-Anne Kincade Patricia Lavus Anna Longdill PC Low Christine Lynch Dianne Martin

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Full Member BLENHEIM Full Member WELLINGTON Full Member WELLINGTON Full Member AUCKLAND Full Member DUNEDIN Associate Member NEW PLYMOUTH Full Member DUNEDIN Full Member AUCKLAND Full Member WELLINGTON Full Member AUCKLAND Full Member AUCKLAND Full Member AUCKLAND Full Member AUCKLAND Full Member AUCKLAND Full Member DUNEDIN Full Member AUCKLAND

Dr Gerard McCoy QC SC Associate Member HONG KONG Duncan McWilliam Full Member TAURANGA Baden Meyer Full Member AUCKLAND Brendan Mills Full Member AUCKLAND Bernadette O’Connor Associate Member WHANGAREI Maria Pecotic Full Member AUCKLAND Adriana Pinnock Full Member DUNEDIN Dr Penelope Ridings Full Member COROMANDEL Shaun Russell Full Member WHANGAREI Lisa Samusamuvodre Full Member AUCKLAND Daniel Schellenberg Full Member AUCKLAND Michael Smith Associate Member WHANGAREI Bridgette Toy-Cronin Associate Member HAMILTON Jack Wass Full Member WELLINGTON Helen White Full Member AUCKLAND James Willis Full Member WELLINGTON

What (not) to Wear in Court

by David O’Neill*

In a recent NZBA webinar1, counsel were reminded of the dress protocol for courts.

Tales of courtroom outfits included a rumour that jeans were worn by one lawyer in the High Court, and that another lawyer turned up in a very light coloured suit (ice cream colour was rumoured - described in very uncomplimentary terms by the Judge in that hearing).

Courts, counsel should still show respect for the court.

Appropriate dress would be: • a gown for a jury trial • a dark suit; • a tie (for men);

While what you wear may not win the case for you, turning up to court inappropriately dressed may be at the least a distraction and at worst, a source of embarrassment if the Judge takes issue with it in front of your client.

Admission Ceremonies: In 2013 the then Chief High Court Judge, Justice Winkelmann, clarified the requirements for dress for admission ceremonies. Candidates and counsel moving have the option of wearing traditional court attire (wigs, bands, white shirt and gowns) or gowns over neat clothing. Neat clothing means a dark suit, white shirt and tie for men and equivalent dress for women (women to ensure their shirt or blouse is white). The two options should not be combined, for example, wearing a wig and a tie, or bands over a tie.

The following guidelines may help to avoid an uncomfortable situation.

High Court, Court of Appeal and Supreme Court Counsel should wear formal business dress which consists of: • a gown • a black, blue or dark grey suit or skirt • a white collared shirt • a tie (for men) • dark shoes The Etiquette Guidelines2 say that formal dress for men is “a dark coloured suit with a collared shirt and tie and for women attire of an equivalent standard”. It was suggested in the webinar that women should therefore consider wearing suit jackets.

If you are appearing by way of AVL link you will need to be gowned. The Judge will determine whether gowns should be worn for a Chambers matter.

District Courts While a more relaxed approach applies in the District 1 2 3

The Law Society has noted that women should have covered shoulders3.

Other Courts Again, respect must be shown for the court. Conservative dress including suits is preferred.

Final sittings and Swearing in Ceremonies: In the High Court, the retiring judge decides if there will be traditional court dress or simply a gown over neat clothing. It is wise to check with the registry before turning up with a wig and gown only to discover you are the only one wearing this outfit.

In the Court of Appeal and Supreme Court, counsel are to wear gowns and formal business dress.

NZBA Council member and Hamilton barrister, David O’Neill was one of the presenters of the NZBA “Etiquette for litigators” webinar. He regularly presents and writes about etiquette and advocacy for a number of organisations. Please contact David at David.

Oneill@nzbarrister.com

NZBA Etiquette for litigators webinar 20 April 2015, presented by Justice Brewer, Philip Morgan QC and David O’Neill.

Etiquette Guidelines for Counsel in Court May 2009, Dept. of Courts website. https://my.lawsociety.org.nz/in-practice/information-for-new-lawyers/new-zealand-law-society-guide-for-new-lawyers/appearing-in-courts-and-tribunals

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History of Legal Regalia for Barristers

By Hugh Collins*

When we visualise a lawyer we most likely picture a man or woman wearing a wig, black gown and bib. However while this stereotype persists, legal wigs in New Zealand are generally reserved for ceremonial purposes only.

Nonetheless they continue to be the defining image of a barrister at work.

Gowns Barrister’s gowns date back as far as the reign of King Edward III in the 14th century. In this period fur and silk lined robes were established as a mark of high judicial office. This was based on the correct dress for attending the royal court of the day. These gowns changed with the seasons, generally green in the summer and violet in the winter, with red for special occasions. The plain black gown, most commonly seen on barristers in New Zealand today, was adopted in 1685 as a result of the Bar going into mourning over the death of King Charles II. “Money bags” Perhaps the strangest aspect of legal attire is the triangular piece of robe which can be seen attached to the back left shoulder of a barrister’s gown. While you could be forgiven for thinking this is some sort of manufacturer’s error, this piece of material (which awkwardly hangs of the back) is said to represent a pocket or “money bag”. The story goes there was a time in the history of the legal profession when barristers would not “lower themselves” to ask clients for money. Instead they would turn their backs to reveal a coin bag, or pocket, to remind clients payment was due. Supposedly the quality of the barrister’s work wouldn’t be compromised if they could not see how much they were being paid. However, original English court dress makers Ede and Ravenscroft argue the money bags are in fact the remains of either an early monastic hood or a traditional hood worn during a period of mourning.

Wigs Wigs first appeared in the legal profession in the 17th century during the reign of King Charles II in the time of the Restoration of the English monarchy. They became fashionable amongst the English upper class after Charles II was inspired by the court of Louis XIV of France. Despite going out of fashion in the reign of King George III, barristers and judges continued to wear them in court to distinguish their profession from other members of society.

Made from either horse, goat or human hair, original wigs were difficult to maintain - they had to be frizzed and

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curled, and then treated with a thick scented ointment known as “pomatum”. Lastly they were covered in a thick layer of powder. This process was required frequently meaning wigs demanded time and attention from their owners.

Today barristers being admitted to the bar in New Zealand can be seen wearing what is known as a tie-wig. The tie-wig has a fuzzed crown, with rows of curls known as ‘buckles’ along the sides and back, and a looped tail at the rear. It became the hair piece of choice for barristers in the early 19th century.

Bibs Bibs, also known as jabots or bands, will only usually be seen worn by barristers when being admitted to the Bar. They first appeared in 1640 when lawyers swapped neck ruffs for ‘falling bands’ of plain linen. Today they consist of two rectangles which are said to represent the tablets of Moses in the Old Testament.

While this attire is not worn by lawyers on a day to day basis, it will continue to be important because it symbolises the timeless and significant influence barristers have in our justice system.

Fun facts: - The word wig is short for periwig, which is derived from the French word ‘perruque’.

- Wigs went out of fashion in the part because of a “powder tax”, which was introduced after the French Revolution in 1790.

- When England’s first female barrister was called to the Bar in 1922, there was heated discussion about what she would wear in court. In the end it was decided that female barristers would wear the wig in the same manner as male barristers, with no hair showing at the front and long hair tied at the back.

- When New Zealand’s first female lawyer Ethel Benjamin was admitted to the Bar in 1887, the Otago District Law Society attempted to impose an alternative dress code to the customary wig and gown. They were unsuccessful in their discriminatory behaviour as Benjamin can today be seen in photos sporting a wig, gown and bib. *This article was written for the Kate Edger Educational Charitable Trust t/a Academic Dress Hire. The Trust can supply members with traditional Court dress.

See www.kateedgertrust.org.nz.

our shout A new soon-to-be-regular event highlighting topics of interest brought to you by Thomson Reuters

WHEN “HAPPILY EVER AFTER” AND

RETIREMENT VILLAGE LIVING PART COMPANY Penny Mudford mediation expert discusses retirement village dispute resolution.

We have an ageing population and its inevitable consequence is more and more people opting to live in retirement villages.

But when John and Mary sell up, down size and shift into their chosen village living “happily ever after” is not guaranteed.

Penny Mudford, dispute resolution expert (FAMINZ(Arb)) says previously unconsidered aspects of village living can often cause varying degrees of distress across a range of areas which in turn can profoundly affect a person’s emotional, mental and physical well being.

The chapter she contributed to the recently released book Elder Law in New Zealand steps through the process of what to do and how to handle a retirement village dispute.

The surprises for residents From observation Penny says most people don’t fully consider the implications of living in a village. They move in with expectations of a peaceful life and then are nonplussed when they find themselves in the centre of a conflict; often the direct consequence of high density living. What was previously innocuous in the privacy of their former quarter acre paradise can be intolerable when it occurs on the equivalent of someone else’s front door step.

For example, says Penny, many villages have specific rules banning the use of a front porch for hanging washing. It’s offensive to some who think it makes a place look scruffy.

Likewise fixing a car in the driveway is probably on the off list, and Tiddles the cat may need to be fostered out before you shift in. so

What happens when “gaps” and surprises collide The current legislative requirements put both residents and operators in an ambiguous position: the operator because they may be both the complained about and the provider of the procedure to solve the complaint. The resident is often similarly conflicted through perhaps being seen as potentially “troublesome” by the village operators and a threat to business.

Neither position, says Penny, allows for fully independent intervention and resolution. In her opinion, this was an opportunity lost when the legislation was being drafted. She says a facilitative type of resolution process is fundamental to achieving good outcomes for everyone.

However, because providing an independent alternative to the procedural requirements set in law is discretionary rather than obligatory, access to facilitation or mediation services is not automatic.

That’s something that puzzles Penny as she says mediation processes are commonplace elsewhere. For instance they are extensively used in employment disagreements and for family disputes. The difference says Penny, is that in this area the onus is with the operator. They may or may not use mediation as they wish.

She says the majority of retirement village residents quite understandably, don’t know, what they don’t know. If mediation is not offered to them, then they are unlikely to request it despite a panel of mediators being available.

For more information: To read the full article visit Online Insider insider.thomsonreuters.co.nz Contact Penny Mudford via her personal website: www.resolutionworld.co.nz/people

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Mobile Business Efficiency: Work Smarter, Not Harder

By Roly Smoldon* I can’t remember the last time I met someone who didn’t have a smart phone, or a mobile device. We use them to stay connected with our families and friends, learn, interact and crucially, we are using them more than ever to become more productive, connected and efficient in the workplace. Barristers are no exception and there are many ways you can improve your business processes to gain efficiency and competitive advantage.

Communication and the movement of data has changed unrecognisably in the past few years and as a result, businesses of all sizes have been left with some interesting choices that will dictate how their business can operate. It’s not so long since businesses only had to cope with smaller sets of information and only a handful of ways we could interact with it. Now we have many systems of engagement, covering many devices, including email, desktop, mobile, social media, web, cloud etc.

Quick responses If someone is trying to get a document, or information from you and they need it quickly, cloud-based technology, partnered with mobile connectivity means you are able to deliver what they want, from wherever you are as quickly as possible. Picture a client making a phone call to your mobile phone while you’re in a café.

They want a document that you used to have to go all the way back to the office to get, but instead you are able to access your cloud storage and retrieve it remotely.

You’re probably used to clients expecting to be able to call you on a mobile number. A landline has its place, if you have a receptionist or assistant, but if you don’t, it’s frustrating for the person trying to contact you, especially if you don’t get back in to the office to clear your messages. Leaving a message on a mobile is perceived as being a faster way to get a response than leaving a message on a landline.

Those few who resist adopting email, social media, web and cloud technologies, are finding themselves increasingly relegated to the sideline of business, taken less-seriously and often, they lose business because their clients expect the agility, accessibility and performance that mobile technology provides. Adoption of mobile technology is easier for smaller businesses and the impact is often life-changing for the business owner.

Reduced risk of data-loss: finger-tip file access Have you thought about the consequences of the loss of your electronic files would do to your business and your clients? What would happen if your computer, containing all of your sensitive legal and client files was lost, stolen or destroyed? Do you back up your files? Do you back up your files to a secure, peripheral drive off-site? Or are you relying on luck to protect them?

Mobile devices and cloud-based services have led to a huge change in work practices, in particular the reduced need to have a dedicated office. You can work on the move, from home, a café, or from the poolside in the Maldives; the reality is that anywhere you can get internet access, you can do provide service to your clients.

Increased efficiency: work smarter, not harder So, putting it simply: cloud technology enables you to work smarter, not harder and bring more balance in to your life. You could run your business from anywhere and you can also continue to provide a service to your clients, even when you’re on the move.

The “cloud” is a network of servers, accessed via the internet, used to provide a service for data storage, transfer or management. These days, the cloud is the basis for much of the technology that we use, whether we know it or not; online banking, accounting and practice management software is increasingly hosted in the cloud, so you probably use it whether you realise it or not.

* Roly Smoldon is the General Manager of IT Services at Ricoh New Zealand. For more information please contact Charley Peace at cpeace@ricoh.co.nz

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Time Recording - Can New Tech Help?

By Ted Jordan* Over the years, timebilling professionals have come up with a variety of ways to record their time.

In the old days there was no alternative to pen and paper, but nowadays you have a bewildering array of high-tech options such as spread-sheets, electronic notes, and an ever-increasing number of time-recording “apps” that can run on PCs, tablets, and smartphones.

Time-recording for barristers The need to bounce between chambers and court presents some special challenges for barristers when it comes to data entry in general, and time recording in particular. The best time to record time is right after the event, but you may not be in a place where it’s easy to type, and you may not even have an Internet connection.

To make matters worse if your work is legal-aid related, you have to provide sufficient detail in your time recording to meet the red-tape requirements.

So, what are the choices?

Your choice of time entry technology depends largely on what you have running back at the office. These systems can generally be categorised as “fully-integrated” or “stand-alone” applications. Stand-alone applications are separate software programs that perform a specific function, like document storage, email, case management, wordprocessing, and accounting. These applications typically do not talk to each other, so your time entries usually need to be re-keyed prior to billing. Technology can help a little in this scenario, however the biggest advantages will be found in fully-integrated practice management systems.

Fully-integrated systems contain all your practice information in a common database. This includes contacts, calendars, email, documents, case details, time records, and accounting.

Direct time entry Purpose-built screens make it easy to review your timesheets and enter time directly into the shared database so that it can be picked up automatically for billing.

Rate sheet overrides can be set by time-keeper, client, and case, to reflect specific fee arrangements. The system will always select the most appropriate default rate, but you can still change it if needed. This saves you having to double-check your records each time you enter time, and ensures that your invoices are always accurate.

Pre-defined “activity codes” speed up time entry by providing default narrations, and are useful for reporting and legal-aid billing. In a similar vein “disbursement templates” allow you to quickly add common cost items like photocopies, travel, courier charges, etc.

Filling in the gaps How often do you get to the end of the day and have a hard time figuring out where you spent all your time?

You know you have worked a full day but your timesheet only shows 4 hours, so you re-check your calendar, dig through your emails, open Word and check the “recent documents” list in an effort to jog your memory.

A good practice management system can spot the gaps in your timesheet and automatically give you suggestions based on your activity for the day. For example it can tell when you logged in, accessed matter files, completed tasks, uploaded documents, connected from your smartphone, and what’s on your calendar. It uses this information to help you reconstruct your day. You can create new time entries by simply clicking on any of the suggested items.

Real-time timers You probably already have a plethora of gadgets to time your activities if you need to. However the benefit of running timers within your practice management system is that they can instantly be linked to matters and converted into time billing records.

You can have several timers active simultaneously.

As you switch between them they will start and stop automatically. For example you may be in the middle of drafting a document when the phone rings. A single click starts a new timer and pauses the document-drafting timer. Once the call is done, add a quick note and then switch back to your document-drafting timer again.

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Mobile access As a barrister, the thing you probably value the most is being able to enter time from your smartphone or tablet.

Good practice management system have “apps” that you can install on your mobile devices to allow you to enter time. The apps communicate directly with your practice management system to keep everything in sync.

But what if I don’t have Internet?

If you’re in court or in transit you might not have an Internet connection. Good mobile apps will work online and offline. When offline, you can enter time records and file notes and these are saved locally on your mobile device until the phone detects an Internet connection. Once that happens, the mobile device will synchronise your changes back to the server.

can always tidy up the narrations later if a few words are misunderstood, but the bulk of your work has been done very easily.

Scratch notes A nice feature found on practice management mobile apps is the ability to dictate free-form notes that can be converted into a variety of other items later on.

For example you could dictate something like: “Attended bail hearing for defendant XXX. Bail granted.

Next hearing July 15th at 3:pm. Bill 1.25 hours at standard rate”.

When you get back to your desk, your scratch note will appear on your screen and you can click a button to convert this into a variety of items such as a file note, a time entry, and a calendar appointment (for the next hearing). The system will re-use the text and make some sensible guesses (like the date of the next hearing) to prevent you from having to re-type the information.

Talk – don’t type One drawback with mobile devices is that it is often hard to type in long narrations with fat fingers and small keypads.

However mobile devices have a killer feature that solves that problem entirely, namely voice-recognition. Good mobile apps allow you to enter text by simply speaking into the microphone. You

* Ted Jordan is the founder and CEO of Actionstep, an online practice management system. For more information go to www.actionstep.com

Capitalising on Discovery – Practical Advice to Help You Gain the Most From the Process

By Angela Goodwin* Although discovery is sometimes perceived as an expensive and potentially burdensome task, this step in a proceeding is also a critical one that has a significant bearing on the course of a case. The proliferation of electronic material to be analysed for discovery may have appeared to make the process more onerous for the practitioner. However the standardisation of procedures for handling discovery in electronic form, in the listing and exchange protocols of Schedule 9 to the High Court Rules, has created a system which relieves duplication of administrative effort and which, when managed well, allows us to derive a valuable return on a client’s investment in discovery. By capitalising on efficiencies in document handling and using the process as a practical analytical device we can make significant advances in the development of our case during this phase of litigation.

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Case analysis The preparation for discovery, prior to the first case management conference requires the lawyer or discovery practitioner to distil the issues from the pleadings and think about them in their practical context. We list the likely custodians of relevant material and consider the nature and categories of documents (in the broadest sense of the word) that we would expect to find. The rules requiring that discovery should be “proportionate to the subject matter of the proceeding” might require us to consider a tailored or a staged discovery. However, a standard discovery order accurately executed will generally be the better course. The key to success in this phase is the analysis of the extent of our own client’s discovery and an understanding of the material we might expect to receive from the other parties.

Document harvesting In commercial matters this phase might necessitate a discussion with the IT team at our client’s office.

Understanding how material is stored and archived by a client can create important efficiencies in transferring electronic material in the most useful media. In cases involving individuals it can be helpful to provide a set of instructions as to how to download electronic material.

In either case a short time in discussion with the client on procedure can save considerable administrative expense. In an exceptional case where the forensic uplift of material is required, expert assistance should be sought.

Initial review and upload A review of the material supplied by the client should be undertaken before it is uploaded to a database.

This allows us to check that agreed parameters have been observed. This step will also reduce overlap between material from different custodians or between hard copy and electronic material.

The exercise will allow us to organise material into a sensible order before the documents are each given a unique (and unchangeable) identification number. A small amount of time undertaking this review is normally compensated by the savings made in processing a reduced document set.

Classification and subjective review It is this phase of discovery that the advantages of electronic discovery start to pay dividends. With our client’s documents uploaded into a litigation management database, we can not only classify documents for relevance and privilege, which creates the capability to produce an affidavit of documents in minutes, but we can capture our analysis and strategic commentary on the documents. It is helpful to code documents by issue, or as material for presentation to a particular witness (particularly expert witnesses), but we can also include free commentary on a document or group of documents which, unlike a Post-it note, will stay with our view of the document throughout the case.

Exchange It is in the acceptance and observance of the listing and exchange protocols that the administrative benefits of electronic discovery are most readily realised. The protocols, prescribing the format in which documents should be coded and exchanged – as individual pdf documents identified by a unique number and coded in specified fields - is designed to engineer a consistency of data that eradicates the duplication of administrative effort previously required for the organisation of discovery material. This is one area of discovery in which parties have been known to seek to save costs by circumventing (or ignoring) the protocols, but it is a step that is critical to the success of the initiative. Where documents are exchanged in the prescribed format by all parties, administrative time is minimised and the ease with which documents can be interleaved, sorted and usefully reviewed and annotated is maximised.

Inspection and enquiry Our inspection of documents received from other parties builds on the subjective database we have created in reviewing material for our own client’s discovery. We can follow the same classifications by issue or witness, which will mean that as we continue with our case analysis and approach briefing, we have only needed to look at each document once to capture its relevance in a searchable way. This is where the lawyer and client can reap the rewards of electronic discovery, properly undertaken.

Regardless of the scale of the collective document set, documents can be grouped and annotated, or even marked for the agreed bundle. They can be printed in chronological order in themed sets. Putting all parties’ material together in this way, and going back to our initial expectation as to what would be discovered in the case, facilitates an analysis of the completeness of discovery leading to early enquiry as to missing documents.

The message Discovery now has the potential to be a more efficient and useful process. As lawyers or discovery practitioners our obligations are to comply with the rules, and to provide the most efficient service to our clients whilst achieving the maximum benefit for them in the advancement of their cases. Ensuring that the best return on the investment in discovery is achieved may require some additional input in the compilation and presentation of discoverable material. However the exchange of material in consistent form and the ability to capture information concerning each document will save a principal’s time in case review.

The advantage gained from the greater knowledge of the case will more than repay this outlay. * Angela Goodwin is a solicitor admitted in England and a director of Goodwin Yallop, an Auckland based litigation support company offering a full range of paralegal services including assisting law firms and barristers with the discovery process, document management and analysis, and trial bundle preparation. Angela can be contacted by email: angela@goodwinyallop.co.nz or via the website www.goodwinyallop.co.nz

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Petrolheads’ Corner: Targa Bambina 2015

By David O’Neill The week of 11 May 2015 rolled around and having been busy with work and no chance to think about the upcoming Targa Bambina 2015, it snuck up on me unannounced.

However, I rallied (excuse the pun) around, drove the car out of storage (it started first time), whipped it down to Capital Tyres for balancing and adjustment and then got it off to scrutineering on the Tuesday afternoon. The tyres I was using were from last year’s Targa South Island and I had a couple of spare new ones, so threw them on the front, used last year’s tyres on the rear and we left for Bombay on Thursday afternoon. Sounds a bit haphazard doesn’t it? Well, you’re right, it was!

on doing 25km per hour and refused to pull over despite the fact there was a string of traffic about half a km along behind them. The trouble with driving a rally car festooned with decals is you can’t indulge in a decent tantrum towards the other idiot. If you do – you get reported and you become the twit getting fined for “unbecoming behaviour”! Rather like being a lawyer and dealing with Standards Committee… However, we got there in plenty of time this year. Last year I drove this particular stage with the only glasses I had in the car – sunglasses and it was just on dusk. It meant for some fairly unsighted (and unsightly) driving!!

We dragged ourselves through pre-rally documentation and briefing. It was a foul night so we went and found our beds for the night and started focussing on driving – uh - sort of!

I should add that by this time we were car number 39 and 8 cars had gone out, some in spectacular fashion.

A lovely RS4 Audi was seen being carted off to the knackers’ yard having rolled over and around a bank.

However, he re-joined us on Sunday with about 3km of duct tape on the car, but still going!

Day 1 - Friday morning dawned and it was reasonably decent to start off with and turned to custard big time later.

We needed to tour down to Mercer and then cut inland towards the east coast. The first stage of the day was fairly damp but everyone was feeling their way through it and it was more of a “loosener” than anything else. Nobody crashed because we were all taking it easy at this stage.

The next couple of stages were around the roads between State Highway One and Miranda and were very fast, more for the V8s than my little car. Then it was time to depart that bit of the country and go further south towards Te Kauwhata. This meant two stages around Lake Waikare of about 35km each.

It’s always a good stage and it always catches people out. There is a particularly nasty corner where the approach is from a quick downhill section into the sharp right off camber corner and a great big ditch on the outside. Nobody went into the ditch this year, but I think it’s the first time in many years it hasn’t caught somebody by surprise. Having said that, of course there were the inevitable prangs, breakdowns and what have you up until then. On one stage five cars went out.

Everybody was saving themselves for the Coromandel bits which are some of the best roads anyone would ever get to drive quickly. We toddled across to Thames and up the Coromandel Coast towards Coromandel Township. There was the inevitable driver that insisted

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We pulled in at the bottom of the Coromandel/ Whangapoua hill. We were the last car into stage and it was, as per usual, a fantastic stage. This time, for the first time, we broke 8 minutes. My time up the hill and down the other side, finishing just by the Whangapoua turn-off, was 7 minutes 48 seconds. I was pretty excited by that.

Having safely navigated the first day in appalling weather, we went to Whitianga and parked up for the night. When I say appalling weather, water was sitting in large puddles on the road and not draining away – not good at 160km/h!

Day 2 - The weather man had said that Saturday and Sunday were going to be nice and he wasn’t wrong. This trip was from Whitianga to the Whenuakite School (for those who don’t know, this is just by the Hot Water Beach/ Hahei turnoff). This is a stage which closes off the only road on the eastern side of the Coromandel Peninsula to traffic while we have a great time whizzing up and down the hill. Again, we were last car into stage (I like this position, as it means I don’t have to look in the rear vision mirror). It took us 7 minutes 41 seconds from Whenuakite School, along past our favourite café (Colenso Café), up Pumpkin Hill and down the other side, finishing just before the one-lane bridge north of Tairua. It was a good dry road, no traffic and plenty of speed.

I have to admit that I did feel a little bit guilty arriving at the other end watching the huge stream of traffic waiting patiently/impatiently for us to finish so they could carry on their legitimate travels up the Peninsula, but the feeling of guilt only lasted about 2 seconds! Then we were back onto the next stage which went from Whiritoa to Waihi.

This is probably the pick of all the stages, because of the road going up the Whiritoa hill and down the other side

and then turning off the Waihi/Whangamata road into Golden Valley Road and onto some of the back roads around towards Waihi Beach Road. Again, it was without incident – well sort of! We did end up going sideways on one corner very early on, but that was because the back tyres were cold.

all assume that:a) You are not going to crash; and b) The five-wire fence they are standing behind will easily stop a 1.5 tonne car doing 160km/h; and c) They would inevitably get out of the way quickly enough.

We beetled (notice – I “toddle here”, “beetle there”. Just trying to avoid repeating “I drove” all the time) into Waihi, got serviced and then shot off for the next stage and gradually made our way over towards Matamata, where we had lunch and went out to race around the Matamata roads, which are always a general favourite.

The correct answer is (d) – none of the above.

The last stage of the day is called Hobbiton and quite rightly so. It starts just past the Hobbiton site where the rest rooms and souvenir shops are and ends up going around the Hobbiton farm. Again, another 35km stage navigated without too many problems. Of course the inevitable happened and our starting number at the back of the field was, by this stage, 34. Cars were coming in and out of the rally as they were repaired, often in a makeshift way.

Day 2 ended in Rotorua. By this stage of course, everybody was keeping gentleman’s hours, primarily because of the small field. I am sure the organisers are concerned, but I expect that most people blew their budget on the South Island jaunt last year. I know it cost me a whole lot more than I anticipated.

Day 3 – This day was dominated by a 67km monster.

It was essentially two stages joined together and I think everyone was a little bit worried about it. The longest stage I have ever done was 50km prior to this and most people haven’t even raced for that long. To keep your concentration while doing up to 180km/h plus takes an awful lot of energy and focus and to do it for around 40 minutes is something else.

However, I think everyone was focused on the same thing, which was getting to the end and we raced that stage in 38 minutes. This left the last stage of the day, which is always a cracker – Paradise Valley! Again, it is a short windy stage which suits my little car and we were able to foot it with the big guys. The V8s were doing it in 6½ minutes and we pulled out a 4 minute 20 second time for the 7.5km around the base of the Ngongotaha Mountain.

It is always a favourite with the Rotorua public as well, as it is lined with loads of people all over the place. I have always wondered what would happen if you had an “off” on this particular stage. I am sure there would be carnage. I am often amazed at where people stand. They

There have been some amazing escapes, but also some horrendous accidents where cars have driven into spectators and a lot of the time, while the driver has obviously made a mistake, the spectators put themselves in danger by standing in what really are the silliest of places, such as the outside of corners. You will have all seen the European WRC events where the spectators crowd onto the roads. If a car is going to go off, it will be on the outside of a corner. It is not often you see cars crashing on the inside of a corner because that is almost impossible. My advice for anybody going to watch these events is to stand on the inside of a corner and get some height because: a) You can see what is coming; b) Cars don’t have wings; and c) If you are on the inside, then you are going to see somebody go off on the outside.

However – back to being silly in a car again. Once again, the car didn’t put a foot wrong.

The crew got very excited when the radiator cap didn’t fit properly, but a 2 minute crimp with a pair of pliers sorted that and this was the extent of the work for the weekend, apart from cleaning windscreens and refuelling the car.

This year’s big one is from Auckland to Wellington and everybody is looking forward to it. It is already noted in my diary and Court fixtures are secondary when it comes to that particular week.

Once again, I have to thank my sponsors – Ebbett Prestige, AON Insurance Brokers, Alexis IT, Staples Rodway, Hamilton and Capital Tyres, Hamilton. Without them I wouldn’t have some of the money to go play with and nor would I have enough stickers to cover the car properly.

Until October – drive safely.

P.S. – I didn’t see Jim Farmer out on the course. He’s probably saving himself for the big one! I do expect to see him there though – I mean the car is far too pretty to hide away in a garage now……….Patience dear reader – all will be revealed if Mr Farmer and his car come out of hiding. I guarantee a picture or 2 will make it onto these pages.

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Are Your Office Walls Screaming “I Don’t Care”?

By Dennis and Judy Wood*

In today’s competitive environment, there is a focus on creating work environments that will entice the best and brightest workers. Bare walls look sterile and boring, while those with bright and exciting pieces of art make an otherwise unremarkable office come to life with character and personality.

Similarly, offices which have been decorated years ago with mass produced office art which has long since faded into the background, seem unloved and uncared for places. Compare this to work places where unique artworks have been carefully selected which stimulate the senses and show workers and clients alike that a great deal of pride is taken in the surroundings people spend a lot of time in every day.

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A well-placed piece of art is part of a client’s initial view of your place of work. Those with bare walls or walls adorned with tired and shabby artwork, suggest an office which has fallen on hard times or simply a lack of interest in the office environment.

Good artwork doesn’t have to be expensive these days and the ability to hire art for your office space is a concept which many have taken up. It is important to select a good art rental company who will help you through the process of selecting the right art for the culture and look of your office. This is especially helpful for those with no knowledge of art. With the ability to change all or some of the art regularly, this

Sadly, with no shortage of celebrities losing their lives to drugs, further portraits are planned for Michael Jackson, Heath Ledger and others. With each pill portrait taking over 100 hours, the works are very limited and very unique – a real talking point for any office. * Dennis and Judy Wood own Mobile Art Gallery, Art Leasing and Consultancy in Mt Eden, Auckland.

For more information go to www.mobileart.co.nz, phone (09) 630 6543

keeps the work environment fresh and invigorating.

One artist who works with art leasing company Mobile Art Gallery, is Steve Smith, who resides in Laingholm, Auckland. Born in London and a graduate of the Hornsey College of Art, Steve Smith has a form of colour synaesthesia which causes music and sound to be visualised in his mind as waves of colour. His fluid use of colour in layers and textures on canvas has been sought after by collectors. Recently, Smith started work on a range of artworks focusing on celebrities who had died from prescription drug overdose. Portraits of Marilyn Munroe, Jimi Hendrix and Judy Garland are carefully crafted from prescription pill capsules which are individually filled to obtain the right colour before being placed among thousands of others to form the portraits.

755 / New Zealand

Create a memorable impression in your office, board room or foyer with contemporary art created by some of New Zealand’s emerging and leading collectible artists.

From only $20 a week!

Transform your office into a work of art.

For full contact details text “art” to 215

Choose from a changing selection of over a thousand works – or ask for a free professional consultation to source artwork that best complements your décor. You can hire art – enabling you to refresh the mood every six months.

Or you can buy the works as many of our clients do.

See what’s possible – visit our website or gallery at 23 Edwin St, Mt Eden.

Or call us for a free consultation at your place (09) 630 6543.

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Having a Website and Keeping it Up to Date

By Greg Wallace* to help with getting your website higher up the search results.

Why do you need to have a website that is up to date?

A couple of years ago, Google updated their system so that newer content is often favoured over older content, meaning that new information is more likely to appear higher in the search results. Content with a more recent inception date tends to rank higher than older content, so adding fresh content can help keep your site ranking where it should.

With the change in the way we use digital technologies to research, browse and shop, websites have become an integral part of a successful business. Historically you would need to spend thousands of dollars with a web design company to get a website designed and built, that was usually then difficult for you to edit and keep up to date. With the changes in technology, this isn’t necessarily the case now, especially if your website doesn’t need complex functionality.

But why is it so important to firstly have a website and secondly, keep it up to date?

In 2006, Google became a verb. It is something we do and something we do all the time. Last month there was over 11.9 billion Google searches worldwide. People are looking for everything on Google including where to find a good barristers. Even if someone has been given a word of mouth referral for a barrister, going to the Yellow Pages is a thing of the past. Potential new clients are Googling to find a barrister’s website, to check out the referral or even just to find your contact details.

Being found in Google using your name is usually quite easy and this is what people search for if they’re a referral checking you out, or if they’re an existing client.

For most professionals, their name is quite unique to them and so there’s not normally a lot of competition for that search. Getting found where more generic search terms are used can be much more difficult and much more competitive. This is where you might need to engage a specialist Search Engine Optimisation expert

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An easy way to get this newer content onto your website is to use a blog. Blog’s have been given a bad name recently and the word blog conjures up images of a friend’s travel blog (filled with stories and pictures of their journey through Europe) or a thrown-together site presenting the author’s political views, favourite recipes and pictures of their cat.

There are many reasons why having a blog for your business can be beneficial but the two most important reason are: • A blog can be your voice to your clients

- Blogs allow you to share developments, stories, ideas, changes in the law and updates in much more detail than other platforms • A blog will get more visitors to your website & help you rank better in Google - Business that had a blog attached to their website received: - 55% more visitors - 97% more links to their website - 434% more pages indexed in Google Having a website is an important tool to promoting yourself and for achieving success. Having a website that is simple to edit and update is important for your searchability in Google. Be sure to check that you have both of these things ticked off your list to help increase your chance of being successful online.

*Greg Wallace is an account manager for Rocketspark.

Please contact Greg Wallace at greg.wallace@rocketspark.com for more information.

New Zealand Bar Association Annual Conference 2015

ACCESS TO JUSTICE – CHALLENGES FOR THE LEGAL PROFESSION 7 - 8 August 2015, Napier War Memorial Conference Centre The New Zealand Bar Association Annual Conference presents a wonderful opportunity for members to learn, network and share professional experiences and challenges. There are two social functions - a casual conference dinner at the Art Deco Masonic Hotel on 7 August and a formal conference dinner with pre-dinner wine tasting at Mission Estate on 8 August.

Don’t miss this year’s Bench v Bar Comedy Debate – David Attenborough presents: Litigators are an Endangered Species, which will be held during the formal dinner.

SPEAKERS • Hon Justice Helen Winkelmann • Hon Justice Geoffrey Venning • Hon Justice Raynor Asher • Hon Justice Simon Moore • Julian Miles QC • Helen Cull QC

• John Katz QC • Chris Gudsell QC • Karen Clark QC • Frances Joychild QC • Luke Claasen • John Dixon

• Simon Foote • Alice Osman • James Rapley • Dr Anna Sandiford • Stephanie Thompson • Bridgette Toy-Cronin

KEY TOPICS • The importance of being expert – finding, briefing, preparing and cross-examining experts • Access to justice – problems and potential solutions • A junior barrister’s place at the Bar • Tips and tricks for advocates For more information and to register go to

www.nzbar.org.nz

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2014-2015 COUNCIL CONTACT DETAILS

2013-2014 COUNCIL CONTACT DETAILS

PAUL MABEY QC - President Ph: +64 7 577 1091 Fax: +64 7 577 1092 pgmabey@xtra.co.nz PO Box 13199, Tauranga 3141 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 peter@davey.co.nz PO Box 1811, Auckland 1140 JOHN DIXON Ph: +64 9 306 2775 john.dixon@shortlandchambers.co.nz PO Box 4338, Auckland 1140 JONATHAN EATON QC Ph: +64 3 372 3466; Fax: +64 3 372 3466 j.eaton@bridgesidechambers.co.nz PO Box 13868, Christchurch 8141 CLIVE ELLIOTT QC - Vice President Ph: +64 9 309 1769; Fax: +64 9 366 1599 elliott@shortlandchambers.co.nz PO Box 4338, Auckland 1140 SIMON FOOTE Ph: +64 9 307 8784 swbf@simonfoote.co.nz PO Box 1121, Auckland 1140 LISA HANSEN Ph: +64 4 914 1052 l.hansen@barristerscomm.com PO Box 8045, Wellington 6143 DENNIS JENKIN Ph: +64 9 307 9815 djenkin@shortlandchambers.co.nz PO Box 4338, Auckland 1140 HAMISH MCQUEEN – Junior Barristers’ Representative Ph: +64 27 337 1495 hmcqueen@shortlandchambers.co.nz PO Box 4338, Auckland 1140 DAVID O’NEILL - Vice President Ph: +64 7 839 1745 Fax: +64 7 838 9319 david.oneill@nzbarrister.com PO Box 815, Hamilton 3240 JUSTIN SMITH QC Ph: +64 4 917 1080; Fax: + 64 4 472 9029 justin.smith@stoutstreet.co.nz PO Box 5722, Wellington 6145 MATTHEW SMITH Ph: +64 9 460 0749 matthew.smith@chambers.co.nz PO Box 1530, Wellington 6140 ALEXANDRA SINCLAIR - Junior Barristers’ Representative Ph: +64 9 354 1403 asinclair@shortlandchambers.co.nz PO Box 4338, Auckland 1011 STEPHANIE THOMPSON - Junior Barristers’ Representative Ph: +64 21 294 8928 stephanie@smthompson.co.nz PO Box 405 AUCKLAND 1140 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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