At the Bar July 2017

At The Bar July 2017

Lawyers in love - barristers share their passions Sports and the law Vexatious litigants

www.nzbar.org.nz

Lexis Lexis Draft Draft ® ®

BE RIGHT . BE FAST . BE KNOWN BE RIGHT . BE FAST . BE KNOWN

NOW AVAILABLE THREETIER TIEROPTIONS OPTIONSFROM FROMJUST JUST$400* $400* NOW AVAILABLE ININ THREE

BECAUSE ONE ONE SIZE BECAUSE DOESNOT NOT FIT FIT ALL DOES Discoverthe theoutstanding outstandingoptions options Discover ® ® Draft is offering – rich content, Lexis Draft is offering – rich content, Lexis great functionalityand andbetter bettervalue! value! great functionality Lexis Draft brings together the power of Microsoft Office® with the Lexis Draft brings together the power of Microsoft Office® with the precise research tools and accurate content that is the hallmark precise research tools and accurate content that is the hallmark of LexisNexis – giving you peace of mind that your documents of LexisNexis – giving you peace of mind that your documents are correct, complete and consistent - every time. are correct, complete and consistent - every time.

For a free demonstration, contact your dedicated NZBA Forrelationship a free demonstration, contact your dedicated NZBA manger – Matthew Pedersen on 09 368 9515 relationship manger – Matthew Pedersen on 09 368 9515 or email matthew.pedersen@lexisnexis.co.nz or email matthew.pedersen@lexisnexis.co.nz

* Price for Lexis Draft Essentials (ex GST, per licence) when added your research package. * Price for Lexis DrafttoEssentials (ex GST, per licence) when added to your research package.

YOUR ASSOCIATION p9

4 From the President – Clive Elliott QC 30 Cyber risk – NZBA Member Benefit Partner, Marsh, explains the risks of being connected 32 Registering for events – Lisa Mills gives you step by step instructions 38 New members – Recently joined members 39 Events – Wellington Bench and Bar Dinner LEGAL MATTERS

p18

p30

p34

7 Arbitration Amendment Act 2016 – letter to the Editor 9 Sports Law: an interview with Max Duthie – London based commercial lawyer, Max Duthie, talks about what makes sports law different 12 Vexatious litigants – The new three tiered system of orders 34 Sentencing Competition 2017 – Tessa Vincent reports on the first Sentencing Advocacy Competition for Victoria University law students LIFESTYLE 18 22 24 36

Lawyers in love (1) – Vroom vroom vroom: David O’Neill falls victim to a gorgeous red Ferrari in Dr Jim Farmer QC’s wonderful collection of cars Lawyers in love (2) – Club, Province, Nation – Desmond Wood combines his love of New Zealand history with a passion for rugby Why diversify? – Laetitia Peterson looks at how many eggs and baskets you need Petrol Heads’ corner – David O’Neill’s Targa comes to a premature end, but he is comforted by a Mercedes

p36 The views expressed in the articles in this publication may not necessarily be the views of the New Zealand Bar Association. EDITORIAL COMMITTEE David O’Neill - Chair Tel: +64 7 839 1745 Email: david.oneill@nzbarrister.com

CONTRIBUTIONS & ADVERTISING Jacqui Thompson Tel: +64 9 303 4515 Email: jacqui.thompson@nzbar.org.nz

Melissa Perkin - Executive Director Tel: +64 9 303 4515 Email: melissa.perkin@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 4516 Email: nzbar@nzbar.org.nz Web: www.nzbar.org.nz PO Box 631, Auckland 1140

From the President By Clive Elliott QC

The last three months have been incredibly busy for your Council and Secretariat. For much of this time, we have been coping without our Executive Director, Melissa Perkin, who unfortunately became unwell while overseas. I am pleased to report that she is now recovering in New Zealand. Melissa has asked me to pass on her thanks to all of those who enquired after her and sent best wishes for her recovery. She expects to be back at her desk in mid July. Rt. Hon. Sir Duncan McMullin PC On behalf of the Council and members of the Association, I would like extend our condolences to the family of former Court of Appeal Judge, Sir Duncan McMullin. Sir Duncan passed away on 26 June 2017, aged 90. Several of our members have taken the trouble to comment to us on the former Judge’s career and, in particular, have mentioned his personal qualities, which made him a pleasure to appear before. Sir Duncan was an Honorary Member of the Association. While print deadlines prevent us from including an obituary in this issue of At the Bar, we will be placing one on our website in the near future. Queen’s Counsel 2017 As President of the NZBA, I am called on each year to meet with the Solicitor-General and the President of the New Zealand Law Society to discuss a list of recommendations for the appointment of Silks, for the Attorney-General to consider. This a complex task that requires careful consideration and is very time consuming. However, the outcome more than makes up for the difficulty of the process and it is therefore with great pleasure that I congratulate the newly appointed Queen’s Counsel. The profiles of the Silks are listed on p28. NZBA Annual Conference 2017 Registrations have opened for the 2017 Annual Conference, which will be held on 15 and 16 September at the Marlborough Convention Centre in Blenheim. The Secretariat has promised me that Blenheim is the sunshine capital of New Zealand and I intend to hold them to it. This year’s theme is Comparative Advocacy. It focusses on the different dispute resolution forums available to counsel. We are fortunate to have three keynote speakers from the United States, the United Kingdom and Australia, who will discuss approaches to advocacy in court, mediation and arbitration in their jurisdictions. We are also fortunate to have members of the judiciary to chair these sessions. In addition, Ian Taylor CNZM (lawyer and entrepreneur), will provide a non-legal component by speaking on innovation and leadership. We have retained last year’s format of optional afternoon leisure activities including a wine tasting tour, visits to classic aviation and automobile museums, walking, mountain biking, and kayaking. Strangely enough the wine tasting tour appears to be selling out fast. Forthcoming AGM 15 September 2017 Our AGM will be held following Session 3 of the Annual Conference. I would encourage as many of you as possible to attend. The Association is undergoing significant change to meet the needs of its members. We would welcome the opportunity of telling you about this and the other business of the Association. Calls for nominations for Council positions will be made in late July. If required (i.e. if we receive more nominations than available positions) an election will be held. I encourage members to consider becoming involved in the Association’s activities, whether this is as an elected Council member or an appointed committee member. It is important both as a matter of professional development and as a contribution to ensuring the growth of the profession. However, it is important to understand that being on Council (and indeed, on our committees) requires a significant time investment. It is not just a matter of attending meetings. Council members

www.nzbar.org.nz

are expected to undertake projects, from writing submissions on law reform through to delivering training. Before running, please consider how much time you can spare from your practice. If you would like to know more, please contact our Executive Director, Melissa Perkin. AIJA Council meeting 16 -17 June The Australasian Institute of Judicial Administration (AIJA) conducts research into judicial administration and the development and conduct of educational programmes for judicial officers, court administrators and members of the legal profession in relation to court administration and judicial systems. There are members from New Zealand on the Council, including the Hon. Justice Helen Winkelmann and Carl Crafar, Chief Operating Officer, Ministry of Justice. I attended the last Council meeting, held in June in Brisbane. One interesting initiative which was discussed was a proposal to conduct a survey of judicial attitudes of Australian Judges along the lines of the survey conducted in 2016 in the United Kingdom.1 The UK survey had a 99% response rate. It considered how judges viewed: • their roles as members of the judiciary; • working conditions; • salary and pensions; • IT Resources; • opportunities, support, training and personal development; • change in the judiciary; • future planning; • recruitment; • leadership. This survey makes interesting reading. Areas of concern are identified (such as a deterioration in working conditions and resourcing, and a perception that judges are not valued by the UK Government). It will be interesting to see if any of these issues emerge in the Australian survey if it goes ahead. Functions We have held a number of functions in the last three months. On 6 April, Richmond Chambers hosted a function for Juniors, which was enjoyed by all. Our thanks go to our Junior Committee (Lara Mannis, Gretta Schumacher and Tito Mijatov) for arranging this, and of course to Richmond Chambers for once again being gracious and generous hosts. At the end of May, Shortland Chambers hosted a function to welcome new members of the Bar. This function was for those who had relatively recently gone to the bar and were practising on their own account, rather than as employed barristers or chambers’ juniors. The aim was to establish a network for barristers in the 5-15 years’ experience bracket and expand support for those starting out. Jane Anderson QC, Kevin Glover and Nura Taefi shared their own personal experiences of starting out at the bar. I would like to thank Honor Ford, Nura Taefi and Alec Steel for kindly organising this event. A special thank you also goes to the team at Shortland Chambers for hosting this event. The Wellington Bench and Bar Dinner was held on 29 June 2017. The dinner attendees from the judiciary included Sir Mark O’Regan, Hon. Justice Denis Clifford, His Honour Associate Judge Warwick Smith, and His Honour Judge Chris Tuohy. Also present was the President of the New Zealand Law Society, Kathryn Beck, and Erin Judge from the Government Legal Network. We were very fortunate to have a leading London sports lawyer as our guest speaker, Max Duthie. A brief report on this event appears on p39. Ceremonies Members of the Association spoke at the Valedictory sittings for Hon. Justice Terence Arnold and Hon. Justice Anthony Randerson. I represented the NZBA for the valedictory sitting for Justice Arnold. Jim Farmer QC also gave an address, given his long-standing professional and personal relationship with His Honour. Stephen Mills QC spoke at the final sitting for Justice Randerson, also on the basis of his long-standing relationship with the Judge. At Hon. Justice Peter Churchman’s swearing in, Lisa Hansen represented the Association. Lisa Hansen and His Honour were chambers colleagues. We hope to see the retired judges at our training events in the future. 1

https://www.judiciary.gov.uk/wp-content/uploads/2017/02/jas-2016-england-wales-court-uk-tribunals-7-february-2017.pdf

www.nzbar.org.nz

Business of the Association Rules Committee – time allocations: The Association has been asked to comment on the Rules Committee’s intended consultation on revisions to the time allocations in Schedule 3 of the High Court Rules for the recovery of costs for trial preparation. The Association has indicated that it agrees that cost allocations for trial preparation based on trial length is preferable to the current fixed allocations based solely on the categorisation of proceedings due to their complexity. It also considers that the review should be extended to time allocations for preparation for, and hearing of, interlocutory and originating applications, appeals, judicial review proceedings and declaratory judgement proceedings. Standard of proof in disciplinary proceedings: The Bar Council of the United Kingdom sought our input for the Bar Council’s contribution to the Bar Standards Board’s consultation process on the standard of proof used in barristers’ disciplinary tribunals. Paul Radich QC responded to this request, outlining the law in New Zealand and, in particular, the Supreme Court’s decision in Z v Dental Complaints Assessment Committee [2009] 1 NZLR 1. Responding to remarks about the Family Court: Many of you will be aware of recent criticism of the Family Court and its judges by a group known as the Backbone Collective. This was widely reported in the media. The Association issued two media releases in support of the Court. These can be found on our website. I acknowledge with thanks the help of Anita Chan QC, who drafted the releases for the Association and David O’Neill, Vice President (Waikato), who assisted in the process. Training: The Training Committee had a late start to the year as the Secretariat was working on bedding in the new CRM (computer system) and website. However, it is now all steam ahead. I was able to contribute to the first webinar this year, “the Perfect Junior”, with co-presenter Jonathan Eaton QC. The webinar was ably chaired by Training Committee member Lara Mannis. We have had some excellent feedback and it will shortly be available as an online CPD resource. The President of the South Australia Bar Association and the Australian Training Council, Ian Robertson SC, combined with James Rapley to present a webinar on case analysis. This session was chaired by Christopher Gudsell QC. It was a very intense session that took attendees step by step through the process. Again, this will be a learning module and we hope to offer it as a hands-on workshop this November. Josh McBride and Phillip Cornegé are presenting a webinar on 4 July on Paperless Hearings. They will demonstrate how to navigate your way through a hearing while presenting. This will also be released as a learning module later in the year. Sentencing Competition: In May, the New Zealand Bar Association and Ministry of Justice hosted the first Sentencing Advocacy Competition for Victoria University law students. This was very successful and I would like to extend my congratulations to all those involved, including the winner, Harrison Cunningham and the runner-up, Julia Spears. A report on this event is available on p 34. Feedback The Council and Secretariat continues to work hard to represent your interests. As always, there is much to do but limited time and resources. If you have any comments, queries or criticisms please don’t hesitate to let me know; feedback of any sort is greatly appreciated.

Letter to the Editor - Arbitration Amendment Act 2016 had anticipated. AMINZ has made a number of appointments since that time using its new appointments policy; a policy which requires either the Executive Director or the President, depending on who is making the appointment, to consult with a panel of practitioners with relevant experience before making such appointments. It’s early days yet, but the process seems to have been reasonably

In his column in the April 2017 edition of At the Bar, Derek Firth makes the observation that the impact of substituting a body appointed by the Minister of Justice for the High Court, in relation to arbitral appointments in article 11 of Schedule 1 and clause 1 of Schedule 2, will be “relatively minor”. On 2 March 2017, the Associate Minister of Justice appointed the Arbitrators’ and Mediators’ Institute of New Zealand, as many

www.nzbar.org.nz

to resolve differences will risk a successful challenge to any appointment which ensues.”

popular with both domestic and international arbitrations. Whether or not this is a reflection of confidence in our appointments policy, expediency or cost effectiveness, we can only guess; but I can say the impact of AMINZ’s appointment has so far been more than minor.

Coincidentally, this issue was recently raised in the case of Body Corporate 200012 v Naylor Love Construction Limited CIV-2017-404-247, Auckland High Court. In his minute of 26 April 2017, Muir J was not satisfied that there was “default” in terms of clause 1(4), notwithstanding that the parties had failed to reach agreement; he perhaps went further than necessary in observing, at para [3]:

There is, however, a significant issue in relation to the interface between article 11 (which provides for the arbitral tribunal to be appointed by AMINZ if the parties cannot agree) and clause 1 (which gives the parties the “quick draw” option to claim default and impose their nominee on the other party).

“If I had been required to, I may have been inclined to depart from the approach adopted by Hansen J in the Hitex decision, particularly given that the Body Corporate applied to this Court under the First Schedule Article 11 before the expiration of the respondent’s notice.”

The first point to note is that issuing a notice under clause 1(4) is not mandatory. Clause 1 sets out an “agreed procedure” for the appointment of the tribunal (an “opt-out” procedure for domestic arbitrations, and “optin” for international arbitrations), which applies subject to articles 11(4) & (5).

The final point, touched on by Muir J, is that clause 1(4) provides no answer to a default notice, other than agreeing the arbitrator specified in the notice. The suggestion that a reference to the High Court under article 11(4) could answer the notice was argued before Hansen J in Hitex, but found no favour. It may be an appropriate answer to the unhappy drafting of clause 1(4) (a clause, like the right of appeal in clause 5, which is not reflected in the UNCITRAL Model Law).

Clause 1 provides for agreement between the parties on the appointment of their arbitral tribunal; if the parties fail to agree or they are unable to reach agreement “expected of them”, then under clause 1(4) any party may serve notice specifying the “default” and requiring them to remedy the default within a specified period; and if they don’t, then the arbitrator specified in the notice is taken to be appointed.

Interestingly, in his excellent article in Law Talk on 23 May 2017, Jack Wass challenges the need for the clause 1 procedure. That would seem to be a sensible approach, particularly given the success that appointment by AMINZ seems to be enjoying.

Under article 11(4), where the parties have been unable to agree on their arbitral tribunal (note, that article 11(4) does not refer to default under the agreed procedure, but to a failure to reach agreement) any party may ask AMINZ to make the appointment for them. It is clear, therefore, that the quick draw procedure under clause 1 is to cover the situation more grievous than a simple failure to agree on the arbitrator, and article 11(4) remains available even if the clause 1(4) notice procedure could have been used. The two procedures sit side by side, if perhaps somewhat unhappily.

I would also support Mr Wass’ suggestion that the words “a dispute arises in respect of the appointment process that the appointed body uses” supporting a challenge to the High Court, should be deleted from the new article 11(7). I do not think arbitration is well served by increasing the opportunities for disgruntled litigants to keep their disputes alive.

The second point, which should be apparent from the above, is that there must be default. This is explicitly referred to by Hansen J in the case of Hitex Plastering Ltd v Santa Barbara Homes Ltd [2002] 3 NZLR 695, referred to by Mr Firth in his article, at paragraph [29] where His Honour observes:

Arbitration is about final and effective dispute resolution; and it is a process the parties enter into voluntarily. We should be wary of providing additional grounds for arguing against enforcement after an adverse outcome. John Walton Commercial Barrister Bankside Chambers Auckland 14 June 2017

“A party or an arbitrator will not be able to invoke subcl (4)(b) unless there has been a genuine attempt to reach agreement. Anyone who peremptorily issues a notice of default without making a reasonable attempt

www.nzbar.org.nz

LexisNexis® eLibrary Package for Barristers

Exclusive to NZBA full members, the LexisNexis eLibrary package offers a comprehensive platform of research and reference materials to make you quicker, slicker and able to take on more. At a fraction of the individual product cost, the package is extremely affordable and offers preferential rates for hardcopy and selected LexisNexis solutions and services. For more information, contact your dedicated relationship manager – Matthew Pedersen on 09 368 9515 or email matthew.pedersen@lexisnexis.co.nz

LW052017MS

eLibrary package is part of the Research pillar within the SmartOffice® Suite, giving you back more time to do what matters to you.

Playing for Sheep Stations: the Rise and Rise of Sports Law By Max Duthie

Max Duthie is a litigator who specialises in sports law and is a partner in one of the UK’s leading law firms, Bird & Bird LLP. He represents governing bodies, event organisers, agents, athletes, broadcasters and sponsors, predominantly in football, rugby union, rugby league, cricket, tennis and cycling. Duthie took some time out from his role as counsel to the Lions Rugby Tour to speak to At the Bar. Asked to comment on whether sports law is a market sector and not a type of law, leading sports lawyer, Max Duthie agrees – but with a qualification. It is not a standalone doctrine because after breaking it down into fundamental building blocks, it does involve applying established principles from existing doctrines to a specific market.

The other qualification is that like any professional services provider, the more you know about the sector in which you are working, the better you are. You may be a brilliant contract lawyer in a wide range of areas, but you are still not going to be better in a specific area than someone who is totally familiar with the issues of that field. The specialist knows all the people, the industry practices and all the potential pitfalls. It is, Duthie agrees, more about the interface between being a lawyer and being a practical advisor.

There are however, one or two areas where it is developing nuances of its own, such as anti-doping and discipline. There is a growing body of case law that suggests you need to approach those cases in a certain way. They are underpinned by administrative law and contract law involving private organisations such as governing bodies acting as quasi-public bodies. Although they begin in a contractual relationship when a party seeks to compete in an event or tournament, this is transformed at the quasijudicial stage of disciplinary proceedings when specialised public law principles emerge.

Sports law, Duthie comments, is an unusual environment. It isn’t a capitalist “eat what you kill and crush the opposition” sector. It can’t be that type of sector, because this would leave you with no one to complete against. It demands of its participants a genuine degree of co-operation that you do not get in many other sectors.

www.nzbar.org.nz

Duthie was himself an athlete. When he studied law at Queens’ College, Cambridge, he played twice in the Varsity Match. At that time, it was played to a full house at Twickenham, which he

describes as an amazing experience. Several future internationals were in the sides. In the early 1990s, he played club rugby but as the game turned professional, it became harder to play at a reasonable standard while working full time. He had just qualified, having trained at magic circle firm, Slaughter and May. He did however take a season out to play rugby for Paris University Club, which at that time was a leading second division club. Duthie wryly comments that his season with them was the start of the club’s downfall to around (currently) the 10th tier of rugby in France. His rugby playing days were ended by injury. By then he had joined a small sports law boutique firm, Townleys. This was very different from Slaughter and May. It was a very flat structure with everyone expected to lend a hand, but he remembers it as fun, and knew that he had found a growing sector of the law in which he wanted to practise. Looking back at the experience of working in a boutique firm, Duthie says it engenders a “can do attitude”. This can be interesting and exciting form a lawyer’s perspective as it encourages you to branch out. In Europe, he says, there is a culture of small law firms. If they are full service, the lawyers need to be both litigators and commercial lawyers and cover many areas of practice, compared with being in a bigger firm, where problems can be referred to specialists who will come up with solutions quickly. Duthie regularly appears before tribunals and disciplinary bodies. Asked about referring matters to the Bar for an opinion, he says that he has developed a hesitation about referring difficult legal problems to barristers too quickly. Given that solicitors have access to the same legal research tools as barristers, they ought to be able to come up with the answer themselves. Duthie impresses on juniors that the firm should be able to answer as many questions as possible before calling in a Silk.

Duthie believes that the key to referral is whether you are asking someone to exercise judgement. There is a difference between saying “these are the leading cases” and saying “in my view, this is how a court would decide”. The advantage of the Bar (apart from, of course, advocacy skills) is that barristers are accessing a “database” of their experience, not just legal knowledge, to give a view on likely outcomes. Duthie also acknowledges the advantages of the independence of the Bar when giving the client advice that might perhaps compromise an ongoing business relationship. One of the philosophies that Duthie brings to the practice of law is one he picked up in Australia, where he and his wife went as a lifestyle move in 2002 – 2005. He worked as a senior associate in the commercial litigation practice at Freehills. Duthie struggles to find anything negative to say about living and working in Australia, stressing it is a fantastic place with much going for it in terms of people and climate. He admires the directness of Australians, as he likes to think of himself as a straight shooter. He recalls discussing with a colleague the selection of players for a five aside soccer team. While they were agonising over whether to pick their best players and win, or be more inclusive, another colleague rather dismissively said “We are not playing for sheep stations”. In other words, it didn’t matter if they won or not. They weren’t playing professional sports. This has always stuck with Duthie and when having discussions now where parties are dwelling on points that don’t matter, he puts on an Australian accent and says; “We’re not playing for sheep stations, mate.” Although Duthie for the most part acts for bodies rather than individuals, his current role as counsel to the Lions Tour is to help the players deal with any disciplinary matters that might arise while on tour. Dealing with the athletes themselves requires a different approach in that they don’t necessarily understand the lawyer’s role. The players are not unintelligent, but are

www.nzbar.org.nz

not used to dealing with lawyers or the process, and may require more explanation. Although it is more time consuming dealing with players rather than organisations, it is more rewarding for the lawyer, who can see the immediate impact of his or her work on the individual.

judge acts that can be dealt with by both the disciplinary process and the criminal law and how serious it must be before the criminal law becomes involved. Often the police may wait to see if sport will deal with it before they decide to act.

Another aspect of this is dealing with safeguards for young athletes. Bird and Bird acts for the Premier League in the UK, which regulates the practice of clubs in relation to academy players. Enormous resources are being poured into academies as clubs compete for the next generation of superstar players.

Cheating and match fixing have regrettably had a high public profile of late. Duthie notes that the seriousness of this behaviour lies in its potential to undermine the bedrock principle of sport, namely uncertainty of outcome. Spectators come to watch a game because they don’t know what the outcome will be. If you take away this uncertainty, it is likely that the sport involved will die, and become American Wrestling, where it is all stage managed.

Because of the age of the players, there are several issues that might arise, such as players being encouraged to leave home etc. When you are 15, Duthie comments, you can see your name in lights but you cannot see the downside. For every champion, there are 10,000 or so who don’t make it. Safeguarding issues are particularly important in the UK now.

The high visibility of sport means that the values engrained in competing are equally visible. This can be a force for both good and bad. There will be instances where because of sport’s high profile, and the fact that it is shown all around the world, these instances may be be very powerful as a social force. One example of this that Duthie recalls is the image of triathlete brothers Jonny and Alistair Brownlee in the World Triathlon Series in Cozumel, Mexico. After Jonny all but collapsed just short of the finish line, Alistair gave up his own chance to come in third to help his brother across the finish line.

Duthie also notes the growth of women’s sports in Britain. He has three daughters who at various stages have been involved in sports, including cricket and rugby. While in the past people rolled their eyes on hearing this, he says that women’s sport in the UK is undergoing a revolution and capturing a new audience. He sees this as a very exciting time for women’s sports. Duthie believes that girls in the 13 and upwards age group can now see a pathway to a career in team sports, whereas in the past it has been limited to sports such a tennis, golf etc.

This is a very powerful image, says Duthie, that demonstrates that while competitiveness is key to sports, you have to remember your humanity when competing. * For more information about Max Duthie see https:// www.twobirds.com/en/our-lawyers/m/max-duthie1

Now and again criminal law issues come up in the context of a sports law matter. There are occasions when the criminal justice authorities are prompted to act by a disciplinary investigation and hearing. By way of example, Duthie acted in the 2009 “Bloodgate” scandal. A player used a blood capsule to fake a blood injury, so that he could come off the field to make way for a tactical substitution. The club doctor was involved because she agreed, in the dressing room, to cut the player’s lip to hide the fake use of a blood capsule.

Barristers Tr

30 years fast/accu For all your Easy iphon

For m E: lisa@

Barristers Transcription Service

From a sports’ perspective, the doctor’s fitness to practice was not relevant. The only concern was whether she should be allowed to be involved in rugby. However, the disciplinary body could not be blind to the fact that her professional medical body would become involved. It is very difficult, Duthie says, to

www.nzbar.org.nz

30 years legal experience

fast/accurate/professional

For all your typing requirements Easy iphone/email upload 24/7 For more information e: lisa@starlegal.co.nz 11

Courts Modernisation – the Vexatious Litigant Jacqui Thompson BA LLB (Hons)*

This article was peer reviewed by Peter Twist, Barrister. We thank him for his comments which were invaluable. The vexatious litigant is not a new phenomenon:1 “From earliest times the courts have battled with both the ingenuity and pertinacity of such litigants. Indeed, in the first Elizabethan period the Parliament found it necessary to enact legislation to ‘avoid trifling and frivolous suits in law in Her Majesty’s court in Westminster.’” Courts will always be slow to interfere with a citizen’s access to justice in the courts. Nonetheless, the growth in persistent litigation by those who cannot accept adverse decisions has meant that stronger measures are required for dealing with the situation. What is a vexatious litigant? While many would agree that we know a vexatious litigant when we see one, there has been very little research into the psychopathology driving litigious behaviour. Dr Mark Levy suggests that the following behavioural characteristics might apply:2 • a history of changing counsel more than once, coupled with at least one episode of representing themselves in Court. If the litigant does secure counsel, their choice will be counsel who identifies closely with their cause, presumably for reasons having to do with the lawyer’s own personal psychology. This results in little or no client control so that no settlement can ever occur. • evidence of narcissistic and paranoid personality traits, manifested by attitudes conveying that the individual considers him or herself to be an exception to the normal judicial process or rules of conduct. If the Court attempts to impose limits, the Court is transformed from arbitrator to oppressor/persecutor.

•

a refusal to settle disputes through customary procedural channels of negotiation and even traditional litigation. The litigant wants his or her alleged suffering, humiliation and victimization witnessed “on the stage of litigation”.

The vexatious litigant may not simply confine his or her activities to court proceedings, but may complain through other channels. Commentators have identified a small group of “unusually persistent complainants who consume an inordinate amount of time and organizational resources in the pursuit of grievances that, in and of themselves, seem, if not trivial, at least lacking in the complexity and import that might justify such lengthy and concentrated campaigns”.3 One of the ways of identifying people in this group is through anomalies frequently found in their written communications. Many of the following list will be familiar to those dealing with the vexatious litigator:4 Form of Communication • curious formatting; • many, many pages; • odd or irrelevant attachments — e.g., copies of letters from others and legal decisions, UN Charter on Human Rights etc., all usually, extensively annotated; • multiple methods of emphasis including - highlighting (various colours) - underlining - capitalization • repeated use of ‘‘’’, ???, !!!; • numerous footnotes and margin notes. Content of Communication • rambling discourse characterised by repetition and a pedantic failure to clarify; • rhetorical questions;

Smith, Simon “Vexatious Litigants and their Judicial Control -The Victorian Experience” (1989) 15(1) Monash University Law Review 48. Levy, M. “Vexatious Litigants – Litigants Who Won’t Accept “No” (or “Yes”) for an Answer” (http://www.fpamed.com/litigants_who_w/ accessed 18 June 2017). 3 Mullen, Paul E. and Lester, Grant, “Vexatious Litigants and Unusually Persistent Complainants and Petitioners: From Querulous Paranoia to Querulous Behaviour” (2006) Behav. Sci. Law 24 (Published online 16 May 2006 in Wiley InterScience, at p335 4 Ibid, p 336 1 2

www.nzbar.org.nz

• repeated misuse of legal, medical and other technical terms; • referring to self in the third person; • inappropriately ingratiating statements; • ultimatums; • threats of violence to self or others; • threats of violence directed at individuals or organizations. Many of these items will resonate with practitioners who have dealt with vexatious litigants. In Attorney-General v Hill5, a decision under s88B of the Judicature Act 1908, after examining 20 proceedings instituted by the respondent, the Court identified several features as showing, on an objective basis, that the proceedings were in fact vexatious. The first item in the list was that there was a pattern of complex, prolix, and sometimes incomprehensible pleadings.

The Querulous or Persistent Complainant

221 complaints received by the Judicial Conduct Commissioner relating to the Supreme Court. These came from only 13 individuals, some of whom had been declared vexatious litigants. The Annual Report for the Commission states that:7 “...the conduct asserted by complainants covers a wide range including corruption, prejudice, bias, discourtesy, incapacity and incompetence. ... Most commonly, however, no substance is provided in support of such allegations and what often becomes clear on examination is a complainant’s simple disagreement with a Judge’s decision.” More insidious is the publishing of complaints on websites. That material does not go away and can be accessed many years after the confrontation is over. As commented by one practitioner, one of the first things a prospective employer (be they the HR manager or an agent) will do is to google an applicant’s name. Some 10 years later, the practitioner is still faced with having to explain a situation that she could not have foreseen. Other lawyers who were involved in the same proceeding have also been featured in internet pieces that cast aspersions on their integrity. Fortunately, in many cases the claims are so extravagant that the litigant/ complainant “outs” him or herself as not being a reliable source of information. The Law Commission in its 2012 report, Review of the Judicature Act 1908: Towards a new Courts Act (NZLC R126), noted the problem of “querulous litigants”. It quoted the description of these in Corbett v Western:8 “Such research as there is tends to suggest that initially the querulous litigant had a legitimate grievance. The judicial or other resolution of that grievance, however, never satisfies or brings finality. The litigant will sue and re-sue. Attempts are made to circumvent matters which are res judicata by collateral attack. Judges and law officers become litigation targets. When there is some statutory complaints procedure against judicial officers, targeted too will be the complaints adjudicator. Appeal tracks are pursued and re-pursued.”

The stages or forums for airing complaint have expanded in modern times to include the internet, emailing a wide circle of people (some relevant or connected to the subject matter and some not) and even billboards.6 Nor is complaint confined to the other party in the proceeding. Increasingly we are seeing instances where judges and lawyers suffer ongoing attacks. Complaints made to the Judicial Conduct Commissioner, the Law Society and the LCRO over alleged improper behaviour place considerable strain on the resources of those offices/bodies. This is particularly so in relation to the Supreme Court. For the year to 31 July 2016, there were

The Commission commented that it had

Attorney-General v Hill (1993) 7 PRNZ 20 (HC) at p26 Attorney-General v Siemer [2014] NZHC 859 at [16] 7 Judicial Conduct Commissioner, Annual Report for the year to 31 July 2016 at p5 https://www.parliament.nz/resource/en-NZ/51DBHOH_PAP69781_1/c884d76c0c56fddbbd7a2a7abf183bba5fe1c48e (accessed 18 June 2017). 8 Corbett v Western [2011] 3 NZLR 41 (HC) at [8]: 5 6

www.nzbar.org.nz

considerable sympathy for the position that lawyers found themselves in when dealing with problem litigants and hoped that the graduated civil restraint order system it was recommending would cover the querulous litigant.9 The Judicature Act 1908 and the inherent powers of the Court: Prior to the enactment of the Senior Courts Act 2016, control over the activities of the vexatious litigant was exercised via the Court’s inherent powers and s88B of the Judicature Act 1908. Under its inherent powers, the High Court could make an order barring a vexatious litigant from making any further interlocutory applications in a civil proceeding without first obtaining the leave of the court (Grepe v Loam (1887) 37 Ch D 168 (CA)):10 “By analogy, the District Court must also have had inherent powers preventing vexatious litigants from issuing future civil proceedings. The High Court probably has power to prevent vexatious litigants from issuing civil proceedings in inferior courts under its inherent jurisdiction to supervise the proceedings of inferior courts.” Section 88B allowed for the Attorney-General to make an application to the Court. The Law Commission identified the following problems with s88B:11 • • • • •

it was a remedy of last resort which had a high threshold for intervention; the test did not consider interlocutory applications, and its position on appeals was unclear; there was little flexibility as to remedy – the orders were a rigid “all or nothing” approach, with no room for flexibility to impose controls appropriate to particular circumstances; only the Attorney-General could apply for an order under section 88B; and only the High Court had the power to make an order.

The Law Commission recommended the adoption of a graduated system of civil restraint orders, like that of the United Kingdom. The Commission noted that this would be consistent with the New Zealand Bill of Rights Act 1990, but

that it might also allow intervention at an earlier stage, rather than as a very last resort.12 Sections 166 – 169 Senior Courts Act 2016 In implementing the recommendations of the Law Commission, the Senior Courts Act avoids the use of the word “vexatious”. Section 166 refers to the making of an order restricting commencement or continuation of a civil proceeding. The section provides for the granting of three orders of increasing severity (see Diagram 1). • a limited order restrains a party from commencing or continuing civil proceedings on a particular matter in a senior court, another court, or a tribunal; • an extended order restrains a party from commencing or continuing civil proceedings on a particular or related matter in a senior court, another court, or a tribunal; • a general order restrains a party from commencing or continuing civil proceedings in a senior court, another court, or a tribunal. Parties to civil proceedings can apply for a limited order or an extended order. Under s 169(2) the Attorney-General can apply for a general order. A High Court Judge may make any of those orders on his or her own initiative.13 There is an appeal as of right to the Court of Appeal against the making of a s 166 order.14 Leave is required to appeal to the Supreme Court. Section 166(6) was an amendment suggested by the Justice and Electoral Committee, and makes it clear that the Court retains its inherent powers to control its procedure. The Court, when faced with a genuine and arguable proceeding, can restrain the making of vexatious applications within that proceeding.15 Grounds and exercise of discretion for making orders Section 167 specifies the grounds for making any of the three orders. In the case of all three orders, the Judge must consider that at least two proceedings filed by the litigant are or were totally without merit. An appeal in a civil proceeding must be treated as part of that proceeding and not as a distinct proceeding.17

New Zealand Law Commission Review of the Judicature Act 1908: Towards a new Courts Act (NZLC R126), [16.48] Harvey. D and Twist, P “Judicature Modernisation: What’s New, What’s Not” (ADLS CPD Seminar, 13 June 2017) para 4.5 11 NZLC R126 at [16.3] 12 Ibid at [16.5] 13 Section 169(3) Senior Courts Act 2016 14 Ibid, 169(8) 15 McGechan on Procedure, SC166.03. 9

www.nzbar.org.nz

Order Limited

Extended

General

Effect • Restrains a party from commencing or continuing in respect of a particular matter only (s 166(3)). • Does not restrain commencement of a private criminal prosecution (s 169(7))

Must show • At least 2 or more civil proceedings about the same matter in any court or tribunal are or were totally without merit. An appeal in a civil proceeding must be treated as part of that proceeding and not as a distinct proceeding. • Proceedings must be commenced or continued by the party to be restrained, whether against the same person or different persons.16 • Restrains a party from commencing • At least 2 or more civil proceedings about or continuing proceedings in any matter in any court or tribunal are or respect of a particular or related were totally without merit. An appeal in a civil matter (s166(4)). proceeding must be treated as part of that • Does not restrain commencement of proceeding and not as a distinct proceeding a private criminal prosecution • Proceedings must be commenced or (s 169(7)). continued by the party to be restrained, whether against the same person or different persons. • Restrains a party from commencing • At least 2 or more civil proceedings about or continuing any civil proceedings any matter in any court or tribunal are or in a senior court, another court, or a were totally without merit. An appeal in a civil tribunal (s166(5)). proceeding must be treated as part of that • Does not restrain commencement of proceeding and not as a distinct proceeding. a private criminal prosecution • Proceedings must be commenced or (s 169(7)). continued by the party to be restrained, whether against the same person or different persons.

Diagram 1 – Orders and Grounds for Senior Courts

However, in the case of a limited order, these meritless proceedings must be about the same matter in any court or tribunal, whereas for the extended order or general order, they can be about any matter.18 As “civil proceeding” is not defined in s 4 of the Act, the meaning in HCR 1.3 probably applies and this would mean that interlocutories are not included. However, in determining if the proceeding is without merit, the Judge may take into account the nature of any interlocutory applications, appeals, or criminal prosecutions involving the party to be restrained (s 167(4)).

“..when are civil proceedings about the same matter in any court or tribunal? It is submitted that s 167(1) has been unfortunately worded because it gives no guidance as to when two proceedings are about the same matter. Do they need to have identical defendants? Or do they need to be of the same type, eg defamation proceedings? Or is there some other test?” The Judge retains discretion as to whether the order should be made.21 The Act itself does not provide any guidance on the exercise of discretion but principles from English case law may be available:22 • the discretion must be exercised in a proportionate manner;23 • the question to be asked is whether the litigant continued with an irrational refusal to take “no” for an answer?24 • past conduct is highly relevant in determining the likelihood of the continuation of future unmeritorious litigation.25

Private criminal prosecutions can also be considered at this level, but a restraining order will not “prevent or affect the commencement” of a private prosecution.19 However, s 26 of the Criminal Procedure Act 2011 will apply to restrain vexatious prosecutions. It has been suggested that s 167(1) presents a problem of interpretation and that amendment is required to bring it back in line with the Law Commission’s recommendations:20

Only the Attorney-General can apply for a general order.26 It is not clear at what point the

16 McGechan on Procedure (Thomson Reuters – Westlaw accessed 25/6/27) suggests that s 167(5) does not affect the principle from Heenan v Attorney-General [2011] NZCA 9, [2011] NZAR 200 at [23] that proceedings brought by the party to be restrained in a representative or fiduciary capacity may be taken into account – see para SC167.02(2). 21 17 24 Section 167(1) Senior Courts Act 2016 Section 167(6) Senior Courts Act 2016 Thakerar v Lynch Hall & Hornby [2005] EWHC 2751 (Ch); 22 18 Harvey and Twist, Op Cit, para 4.20 Ibid, s 167(1) - (3) [2006] 1 WLR 1511 at [4] 23 19 Courtman v Ludlam [2009] EWHC 2067 (Ch) at [12] 25Courtman v Ludlam see n23 at [14] Ibid, s 169(7) 20 26 Harvey and Twist, Op Cit, para 4.17 Section 169(2)

www.nzbar.org.nz

Attorney-General will seek a general order and whether the Court itself will await any such application before proceeding on its own initiative.27 The provision allowing a Judge of the High Court to seek an order on his or her own initiative was added by the Select Committee, which said that this was in line with comparable overseas jurisdictions, and it would be consistent with a court’s inherent powers to control its own proceedings.28 It is notable that the senior judiciary had only sought this power in respect of limited and extended orders. In practice, vexatious actions begin as private matters and spiral to include actions against courts and judicial officers, with the Crown answering these. The Court may be reluctant to make a general order of its own initiative. Without Merit For all three types of order, the Judge making the order must consider at least two proceedings are or were totally without merit. The phrase “totally without merit” is not defined in s 4 of the Act. The Ministry of Justice (the Ministry) advised against specifying criteria in s 167, being of the view that reliance could be placed on New Zealand and English case law. The cases establish that: • •

The Ministry in its Report to the Justice and Electoral Committee identified the following factors in the English case law as relevant in deciding whether a proceeding is totally without merit:30 (a) there are no prospects whatever for success; (b) exposure of defendants to inconvenience, harassment and expense out of all proportion to the gain a plaintiff is likely to receive; (c) actions are brought at the drop of a hat despite the lack of merit; (d) no regard is paid to merit, proportionality or cost by a litigant; (e) the statement of claim or defence discloses no reasonable grounds of bringing or defending the claim; (f ) the statement of claim is an abuse of the court’s process or is otherwise likely to obstruct the just disposal of the proceeding; (g) there has been failure to comply with a rule, practice direction or court order. Term of order The term of an order made under s 166 is for a period of up to three years. However, the judge can extend this to a period of up to five years if he or she is satisfied that there are exceptional circumstances justifying the longer period.31 This is intended to give some flexibility while still preserving rights to access to justice in the New Zealand Bill of Rights Act 1990.

an objective standard must be used in determining whether the proceedings are totally without merit, and not the litigant’s own beliefs or motives; the question is whether the proceeding can be Leave applications: described as “totally without merit” because of its nature and substance, or lack thereof. A person who is subject to a s 166 order can apply on a without notice basis for leave to Twist comments:29 continue or commence a civil proceeding, but the court may direct that the application “Some assistance may be gained from be served on any specified person.32 The looking to England where the phrase “totally application will be determined on the papers, without merit” is now firmly embedded in unless the Judge considers that there are the Civil Procedure Rules 1998 (UK). It has exceptional circumstances and that it is in the been held that no Judge would certify an interests of justice to conduct an oral hearing.33 application for permission to apply for judicial review as “totally without merit” unless he However, the Judge’s determination of an was confident after careful consideration application for leave is final.34 The Select that the case is truly “bound to fail”. It has Committee recommended the addition of this also been held that before a court can record clause because the applicant would have the fact that a struck-out claim was “totally opportunities to test the validity of the order itself, without merit”, it must consider whether and the court would be aware of the person’s the underlying claim had merit rather than background and the merits of the application.35 whether the way in which it was presented or pleaded was “totally without merit”.”

Section 169(2) Section 169(3) Senior Courts Act 2016 28 Report of the Justice and Electoral Committee on the Judicature Modernisation Bill (178-2), p2 29 Twist and Harvey, Op cit, para 4.19 30 McGechan on Procedure SC 167.03

Section 168(2) Section 169(4) 33 Section 169(5) 34 Section 169(6) 35 Op Cit at n28 at p3

www.nzbar.org.nz

District Court and Vexatious Litigants

In line with the Senior Courts Act:

The District Court has powers under s 213 District Court Act 2016 to make orders, but only a limited order or an extended order. Again, a limited order restrains commencing or continuing civil proceedings on a particular matter and an extended order restrains commencing or continuing civil proceedings on a particular or related matter in the District Court. The District Court includes the following divisions:36

• a party to the proceeding may apply for a limited or extended order;38 • a Judge may make an order on his or her own initiative;39 • any order has effect for a period of up to 3 years, but a judge may specify a longer period not exceeding 5 years if satisfied that there are exceptional circumstances justifying the longer period;40 • an application for leave to continue or commence a proceeding may be made without notice, but the court may direct that the application be served on any specified person;41 • applications for leave will be determined on the papers unless there are exceptional circumstances and it is appropriate in the interests of justice to hold an oral hearing;42 • any determination of an application for leave is final;43 • private prosecutions are excluded from the effects of the order but again are likely to be controlled by s26 Criminal Procedure Act 2011;44

(a) a general division, to exercise the ordinary civil and criminal jurisdiction of the court, including common law and equitable jurisdiction and admiralty jurisdiction; (b) the Family Court; (c) the Youth Court; (d) the Disputes Tribunal. Again, the Court’s inherent powers to control its own proceedings have been retained.37 The grounds for making an order are set out in s 214. The section is similar to s 167 Senior Courts Act. A limited order requires two or more civil proceedings about the same matter in the court that are or were totally without merit.

Under s 216(7), a person who is subject to a s 213 order has an appeal as of right to the High Court and an appeal with leave of the High Court is available to the Court of Appeal under s 216(8). There is no reference to the Supreme Court but it is arguable that this appeal is still available.45

An extended order requires two or more civil proceedings about any matter in the court that are or were totally without merit.

Order Limited

Extended

Effect • Restrains a party from commencing or continuing in respect of a particular matter only (s 213(3)). • Does not restrain commencement of a private criminal prosecutions (s 216(6)).

Must show • At least 2 or more civil proceedings about the same matter in any court or tribunal are or were totally without merit. • Proceedings must be commenced or continued by the party to be restrained, whether against the same person or different persons. • An appeal in a civil proceeding must be treated as part of that proceeding and not as a distinct proceeding. • Restrains a party from commencing • At least two or more civil proceedings about any matter in any court or tribunal are or were or continuing proceedings in respect totally without merit. of a particular or related matter • Proceedings must be commenced or (s 213(4)). • Does not restrain commencement of continued by the party to be restrained, whether against the same person or different persons. a private criminal prosecution • An appeal in a civil proceeding must be (s 216(6)). treated as part of that proceeding and not as a distinct proceeding.

Diagram 2 – Orders and Grounds for District Court Section 9 District Court Act 2016 Section 213(5) District Court Act 2016 38 Section 216(1) District Court Act 2016 39 Section 216(2)

Ibid s216(6) Civil Procedure: District Courts and Tribunals (Thomson Reuters Westlaw, accessed 25 June 2016) at DA216.02

www.nzbar.org.nz

Ibid, s 215(2) Ibid, s 216(3) 42 Ibid s 216(4) 43 Ibid s216(5)

Lawyers in Love 1 – Vroom Vroom Vroom David O’Neill*

Every now and then my Sub-Editor (or, as I like to think of her, my subsub-editor) has a not too bad idea. I won’t go as far as good. “David,” she said, “We need to look at lawyers as real people. What are their passions?” My initial fear of having to write an article about feelings faded as she added “Go interview Jim Farmer QC about his cars.” I followed up and asked Jim for some time so I could come up to Auckland, interview him and see some of his cars. I journeyed to Auckland (by train believe it or not) and walked to his offices in Emily Place. We conducted the first part of the interview there. Jim then took me (or rather I drove his car) out to his house at Parnell where we viewed part of his collection. I have heard about people who collect cars but never in my wildest dreams, could I have ever imagined something quite as exotic as this. Jim’s passion for cars is reflected in this diverse and wide-ranging collection.

It was a pleasure to view such a magnificent collection (only part of ) and I have to say that Jim was a terrific interviewee. I am very grateful to Jim for giving up his time and also (I noticed all the dust cloths on the ground) getting the cars ready so that I could see - and drool - over them. To sum up – nothing beats a red Ferrari and the two that were in Jim’s collection, being the Ferrari 512 Berlinetta Boxer and the Ferrari 246 Dino Spyder, were simply magnificent examples of fine Italian machinery. D Jim thanks for talking with me. First, how many cars do you own? J I’m not totally sure, it’s either 20, 21 or 22. D So given that you are not sure, what are the cars? J There are four Ferraris, four Alfa Romeos, four BMW’s, two Porsches, two Volkswagons, a Lancia Intergrale, a Corvette and a Mustang and the BMW 135 that I use for Track Days. D Which is your favourite? J Whatever one I’m driving that day!

www.nzbar.org.nz

D So what are you driving today? J Today I’ve got the Porsche GT4 Cayman which we’ll go in out to the house. D When did you first start racing? J I’ve only done the one Targa. So all my other racing has been yacht racing. D When did you first get interested in cars? J Probably as a very young boy, like most young boys. My father had an Austin 7 after WWII but, when I was 12, I was at Manukau Intermediate School and the local Rotary Club asked the school if they would provide a child to do a lunchtime talk to them so I was chosen. I decided to talk on Henry Ford for some reason. I did some research, wrote to the Ford Motor Company in Detroit and they sent me all this information and I gave a talk on Henry Ford. D What was your first exotic car? J The first exotic car that I ever owned I didn’t manage to get till I was about 25 or 26 years old when I was in England doing post graduate study. I bought a new Tourist Delivery BMW 2002 Tii. Before that, I had an Audi Super 90 (when no-one knew what an Audi was and the brand had just been relaunched).

J Well. Robbie built that BMW Targa car. It was just a new car and he built it for someone else as a rally/race car and this chap didn’t really get into it, so the car got sold and eventually I saw it and I bought it. D So where have you parked the other 11 or 12? J Where are the others? I’ve got 2 at the office, including whatever I’m driving that day. I’ve got a place at Lake Karapiro where I’ve got 2 and the others tend to be getting warrants of fitness and I just forget to pick them up! There are always 4 or 5 that are in workshops somewhere. D What car would you aspire to if you had unlimited funds? J That’s a really hard one. Maybe the BMW 2002 Turbo I mentioned earlier. We once had a BMW 3 litre CSL. Some of the older cars perhaps but there are lots of good classic cars. Not necessarily a lot of money either. I quite like the NSU Rotary - I’d like one of those. D What about a Pagani? J For some reason it doesn’t really appeal to me. I think I’d rather have a Ferrari or Lamborghini.

D You say you currently drive whatever you happen to hop into at the time. You obviously can’t keep all of them at home. J No. At the moment I’ve got 10 there which is unusual and it’s unsatisfactory as you’ll see when we get there. Normally I would have 5 at home, 4 in the garage and 1 sitting in the Court yard – the one that I’m driving. The rest have always been a problem. I had a barn up at Matakana which I don’t have access to any longer. But I’ve just brought another house at Matakana and I’m going to build a 20m x 15m bespoke garage on it and that will solve all the problems. D So you do have mechanical ability or does someone else do it for you? J Someone else does it. D I know for example when you were racing in Targa, you had Robbie Francevic.

www.nzbar.org.nz

D The most user friendly car I have driven was the Porsche 911. You can go and get your milk in it or you can go and have a thrash around the track in the same day.

in Lalique crystal as a bonnet emblem and that [the eagle’s head], alone, was worth $80,000. J Actually going back to what car would I really love to own. The answer to that, I’ve just realized, is a Maserati 250F Grand Prix car.

J Well it’s the same with this Porsche GT4. It’s a very practical car, it’s got a boot in the front and one in the back as well.

D A single seater?

D Really, that’s pretty good. So have you ever owned a Rolls Royce?

J Yes, that to me has always been the ultimate Grand Prix car, 1950’s or whatever it would be.

J No.

D So you told me you do track days. Do you have any interest in classical racing?

D Any desire to own one? J I just would feel selfconscious in one. D As opposed to driving a Ferrari? J Yes! D What about SUV’s, do you own one? J No, I have had a Range Rover in the past, and I had a Jeep Cherokee but I don’t like SUV’s generally. I have a new Alfa Giulia Quadrifoglio arriving into NZ soon that I bought through a London Alfa dealer. I have an arrangement with them that when the new Alfa Stelvio becomes available in England, that’s an SUV with the same 500hp motor, I have the option to buy one of those and I probably will. J The Giulia’s going to be my every day car. My 1M, which I still have, has been my every day car for the last 6 years and this Alfa which is a 4 door family car, happens to have a 505hp Ferrari motor. It’s got an 8 speed auto. The only other automatic cars I have are the ‘69 Mustang and the BMW 135. D Are you interested in Vintage cars? J I am. I kind of like the 1930’s Packards. I would love to have a 1930’s Packard actually except they are big cars. We borrowed one for my son Hugo’s wedding last year. It was an amazing Packard which had an eagle’s head

J Not classical racing no. The BMW 135i is set up for the track. I feel confident in it on the track. My ‘69 Mustang is a classic American muscle car and it is beautiful, but it’s horrible to drive - even on the motorway - when it’s wet. You have to be ultra-careful or it will skid. You get so used to ABS brakes, as you know, and suddenly you’re in a car that doesn’t have ABS brakes and you put the brakes on and it’s a different technique. If you’ve forgotten, you’re in trouble. I really enjoy watching those old muscle cars racing but I’ve never really wanted to be part of it. The same with the 1970’s Alfas and things like that. You’ll see I’ve got a 1970 Alfa and they race those every year. D I know that you race yachts. How many yachts do you have now? J I had two for a while but it’s a recipe for going broke to race two yachts so I sold the second one. That was the one that I built originally in 1995 and we won the Kenwood Cup in Hawaii in it. A few years later I sold it to an American and it went to New York. Many years later I saw it for sale in Indianapolis so I got nostalgic and bought it back again and then we ran a two boat campaign for a while. Apart from anything else it’s actually quite hard to get crew for one boat let alone two all the time. In the end I sold that one.

www.nzbar.org.nz

D Do you still race in the other one? J Oh yes absolutely. All the boats have been called Georgia. There have been Georgia Express or Georgia 1 or Georgia something. D Is that a family name? J That’s my daughter’s name. D Does she reckon she’s your favourite? J She was 8 when I built the first one and she is now 32. In fact a funny story about that: a few years ago she met some young guys who were sailors, and they asked her if she was named after the boat? And she said “No, the boat was named after me.” It gave her great pleasure in saying that. D So you’re still involved in yacht racing? J Yes, I’ve done a lot in recent years. We’ve done a lot of racing in Australia but I finished that campaign about 2 or 3 years ago and since then have been doing the regattas held here and Wednesday night and Saturday racing. I’m thinking we might go back to Australia next year perhaps, Hamilton Island. D What about Sydney - Hobart? J No, when I took up yacht racing, the first boat I had, which was a little Munn 36, was a very fast, light racing yacht. We started out in the Sydney- Hobart. One hundred boats started and only 20 odd finished. We got halfway across Bass Straight and only 2 out of the whole crew were still able to function; the rest of us were just so paralytically ill. It was sort of like 10m waves, it was shocking. I’m never going to do that again. At this point I drove us to Jim’s place in his Porsche GT4 Cayman (yes – he was foolish enough to let me drive……..) where we viewed the collection. Jim dictated all the rest of the interview himself, describing and naming the cars J So first of all, 1970 Alfa GT Junior but with a 2 litre motor in place of the old 1300. I bought that from England from a man who was one of Alfa UK’s top engineers. He’s now a car restorer and and he restored it. The next is the 1991 BMW Z1 which is notable for the doors that slide electronically up and down into the sill as opposed to opening out. It’s quite a high sill so you have

www.nzbar.org.nz

to climb over it and into it. I have had that since new, imported personally from England. I had it converted into right hand drive, which I had to do to register it at the time, because they only made them left-hand drive. The next is a 1978/79 Ferrari 512 Berlinetta Boxer which is the carbureted V12 car and the last of the carburetor cars that Ferrari made, so it’s got special interest for a collector. I restored that car. It took three years to have it restored here and it’s better now than when it was originally built. They were hand-built at the factory, not particularly well. This car is very well built now because it was totally pulled to bits and we started from scratch. Then there is a 1998 355 Ferrari Spyder which is a convertible V8 and a great little car. The 2015 Corvette ZO6 is a top of line Corvette. I picked that up new in America and did a big road trip with two of my sons: my younger son Hugo for the first half of the trip and my elder son Russell, who lives in Sydney, for the second half of the trip. It has a V8 with 650hp, 880nm of torque and a great, great touring car. It’s a beautiful car- yellow and black. Next is a 1991 Lancia Intergrale, the model that won the world rally championship five years running with 4WD and a 2 litre turbo. Nothing will hold it on a winding country road. Next is the 1969 Ford Mustang Mark 1. It’s red and black and probably attracts the most attention of the cars that I have if I am driving it somewhere. Then a 1991 Alfa Romeo Zagato SF which was a car that Zagato designed and built. Only 1000 of them were made. At the time, because people thought it was so ugly, they called it El Mostro (the Monster) and I had the number plate Mostro on it, but these days it actually looks pretty nice, quite contemporary. Finally there is a 1973 Ferrari Dino 246 GTS which is the targa top and that is probably the prettiest Ferrari ever made. A small V6 motor, but a light car, and so it goes really, really well and sounds terrific. * Hamilton based barrister, David O’Neill, is our resident motoring columnist and the NZBA Treasurer.

Club, Province, Country – a Reflection of New Zealand/Aotearoa By Jacqui Thompson

Going into a match with a commitment to winning was part of the national psyche. Wood says that people did not come to New Zealand to fail - including the first Māori to land. He quotes former Prime Minister, Jim Bolger, who in an interview once said that no one in New Zealand has a timid ancestor. The growth of nationhood and pride is mirrored in the international tours that took place. However, the famous 1905 tour to the United Kingdom, in which the All Blacks won all but one match, was opposed by the Otago Union, which said that the function of the New Zealand Rugby Football Union was “the conservation of football and not the advertisement of the Colony”. As things turned out this was perspicacious as the New Zealand side definitely attracted attention – although perhaps not in a desirable way. The 1905 tour was neither the the first international tour nor the first time our players had attracted negative comment. At the end of 1888, the first tour to Britain took place, known as the Natives Tour.1 These players were highly educated urban Māori. They had attended excellent secondary schools, such as Te Aute College, and went on to Otago University. New Zealand Rugby Country: How the game shaped our nation (Bateman 2017) $39.99 Social Historian and barrister, Des Wood, is adamant that his latest book is not a sports book; it is a history of the impact of rugby on a nation. The subtitle is “How the game shaped our nation”, but the real question behind this book is whether rugby reflects New Zealand Society and whether that society is still mirrored in the game? Wood notes that there are parallels in what we did in the 1860’s to 1880’s as a developing nation (for example, innovations in refrigeration) and the way we played rugby. The intensity with which New Zealanders competed in the 1860’s and 1870’s reflected the innovation and adaptability that New Zealand was showing as a growing country.

This tour was important because the methods the players used were subsequently developed and exploited on the 1905 tour. They developed positional play which England had never played. New Zealand identified roles for the positions, such as ball running support. On the Natives Tour, there were problems with the British view that the New Zealand side was too intense. While New Zealand rugby was a running and passing game – a game of skill – the dedication to winning was at the forefront. The difference was therefore not just in playing strategies. It was attitudinal. This intensity could also be seen in the New Zealand team’s commitment to training, which they kept up at all times. Wood recounts, as a comparison, how a British team refused to train on the boat coming out to New Zealand. They paid for that because the New Zealanders then ran all over them.

This was the Tour which marked the first appearance of the black jerseys and the silver fern, which were both later adopted when the NZRFU was formed in 1902.

www.nzbar.org.nz

“... It was bad enough having to play a team officially designated “New Zealand Natives” but the spectacle of thousands of Europeans frantically cheering on a band of coloured men to defeat members of their own race was too much for the Springboks, who were frankly disgusted...”

Like the players on the Native Tour, the players on the 1905 tour again experienced considerable British media criticism for their intensity, and their strategic use of the wing forward position. But all of this was within the rules. It somehow feels as if not much has changed! The Prime Minister WF Massey cabled congratulations to the 1924 team for their “splendid unbeaten record”. Wood comments2:

It is hard not to cheer at the thought of ordinary New Zealanders behaving with such great common sense.

“To the extent that rugby needed to be acknowledged as the ‘national game’, this was its time. No other sport in the country could compete with its prominence, nor its dominance, culminating in the great success of this tour.”

Wood traces the events of the 1981 tour, noting its significance in New Zealand history. As he comments, the tour itself was never about the rugby. Once again, it reflected New Zealand society and in this case a festering division over the morality of maintaining contacts with South Africa. Resistance had been growing to the South African selection procedures over the last few decades, particularly in the wake of the Sharpeville Massacre. New Zealand was censured by the United Nations for its sporting ties.

When World War I ended, 17% of New Zealand’s young male population was lost. Included in this figure were 13 All Blacks. There had also been population loss from the influenza pandemic. However, rugby grew considerably in the 1920’s and continued to be played throughout the country as the 1930s depression dragged on. Along with the growth in club rugby, provincial rugby was strengthened by the increased mobility and the urbanisation of the country. The clubs drew most of their players from towns and cities, contrary to the view that the rugby world (and New Zealand itself) was a rural society. Māori rugby grew as the Māori population moved from rural areas to towns. The book acknowledges the fundamental influence of Māori rugby in developing the skilful running and passing game we have come to know. But it also reveals an uncomfortable and perhaps shameful side to rugby’s relationship with the tangata whenua. As early as 1905, New Zealand agreed to play against South Africa – having first weeded some of its better players from the squad because they were Māori and therefore unacceptable to the South Africans. In 1919 during negotiations for a match between New Zealand and South Africa, the South African Rugby Board advised in a cable its High Commissioner that if the New Zealand team included Māori, the tour would be wrecked and immense harm politically and otherwise would follow. Two players were duly excluded from the New Zealand team, notwithstanding their excellent records. When South Africa toured New Zealand in 1921, there was a match against the New Zealand Māori. Following the match, a cable was sent to a South African newspaper which stated:3 2 3

But there remained an intransigent section of the population that had adopted the disingenuous cry that “sports and politics do not mix”. Today, when various sports receive tax payer dollars to encourage their growth and the holding of money making tournaments, this may seem like a ridiculous statement. But as the 1981 tour approached, this was the catch cry of those who wanted rugby for rugby’s sake. Wood notes that a significant cross-section of New Zealand was opposed to the tour, including Māori, religious groups and trade unions. However, a highly significant group was made up of the educated middle class of both sexes. The other side, says Wood, was typified by the NZRFU officials whose concern was that they not be pushed around by this group. There were, he says, many New Zealanders who truly believed that playing rugby against South Africa was their fealty, their right. It was a group of lawyers in 1985 who finally did the pushing around. They challenged the NZRFU’s decision to tour South Africa on the grounds that it was not applying its own rules. As the time for the tour neared, the proceedings were converted to an application for an interim injunction to prevent the tour from proceeding. The High Court granted the injunction on several bases. This decision was not challenged and the tour did not go ahead. In summing up this period in New Zealand history, Wood comments that it produced heroes

Wood, D., New Zealand Rugby Country (Bateman 2017) p71 Ibid, p94.

www.nzbar.org.nz

Conclusion

from unexpected sources such as politicians from opposite sides of the political divide. He says that the legal system rescued the NZRFU when it made an inexplicable and insensitive decision in 1985. The book also considers the role of women within rugby. It notes that in 1888 a British team came to play in New Zealand and they identified what they believed to be the outstanding features of our rugby: the first was the intensity and the will to win, and the second was the involvement of women. The game at that time was quite violent and it was believed that this was tempered by the presence of women. Wood argues that women assisted in the ascendancy of rugby and its claim to the title of the national game. They enabled the game to flourish. Organised Women’s Rugby did not gain prominence until the latter part of the 20th century. While the national women’s team gained media attention, this was not reflected in the involvement of women in the higher levels of sports administration. In this area, we continue to lag behind other nations, including Australia. It may be that women and rugby have a future together, but the jury is still out.

The book is meticulously researched, as demonstrated by its, not inconsiderable, bibliography. It traces the development of rugby alongside the development of New Zealand society, highlighting the role of Māori in rugby, the increasing role of Pacific Islanders following twentieth century migration, increased commercialisation and the involvement of women at player and administrative level. It asks how rugby will fare in a country with increasing numbers of immigrants who do not share the history of the sport – will it find a new population base or will it face a struggle in its claim to be the national sport? Equally we could ask how New Zealand will assimilate and make room for the new cultures and interests of its latest citizens? This book shows Wood’s love not just of rugby, but of history. There are areas that could be expanded on in the future, and you may not agree with some of his theses on certain aspects, but that is what makes a social history interesting. It challenges your perspective and drives you to respond.

Why Diversify? the Question of Eggs and in How Many Baskets They Should Be Put… Laetitia Peterson*

Why diversify? The question of eggs and in how many baskets they should be put… There are those who want to make a killing and those who wish to never get killed. The happy subset of these two groups is a place we call “Diversification”. In my book Legal Tender, I look at various behaviours or biases that can negatively impact our ability to make sound financial decisions. One is the overconfidence bias. Of the lawyers I studied, 48 per cent showed they were likely to be susceptible to overconfidence, since they professed to have

greater degrees of control over their investments (either directly or via their sharebroker). “Everyone thinks they are a better driver/ singer/investor than they are. Our subjective judgement almost always exceeds our objective accuracy.” – Jim Parker, Dimensional Fund Advisors. Overconfidence can be one of the most detrimental biases that an investor can exhibit, often due to underestimating downside risk, trading too frequently and/or trading in pursuit of the “next hot share”, and holding an undiversified portfolio. Overconfident investors often do not believe that the assets they traditionally favoured will ever perform poorly.

www.nzbar.org.nz

Survey respondents showing symptoms of overconfidence included lawyers who had turned fund managers or single-asset-class investors (predominantly property). One banking and finance lawyer who specialised in dealing with problems arising from overconfidence, said he was now more conservative when it came to investing. The other side of the coin flips to reveal the loss aversion bias. This stems from the common rule of thumb that “psychologically, the possibility of a loss is on average twice as powerful a motivator as the possibility of making a gain of equal magnitude”. Essentially, loss aversion is the tendency for individuals to prefer avoiding losses rather than accruing gains. Many of the options we face in life are “mixed”; there is a risk of loss and an opportunity for gain, and we must decide whether to accept or reject the gamble.

YOU HAVE TWO CHOICES:

QUESTION: OPTION 1

A sure loss of $750,000

OPTION 2

A 75% chance of losing $1 million and a 25% chance of losing nothing

Results showed that 75 per cent of respondents chose Option 2 (preferring to take a risk to avoid a loss), and the remainder Option 1 So, how do we reconcile these two seemingly opposing behaviours? We diversify. Let’s look at a real world example to see how it works. A popular website picked “three top Australian shares for 2016” — shopping centre giant Westfield Corp, digital real estate business REA Group and healthcare company CSL.

“Losses loom larger than corresponding gains.” – Amos Tversky and Daniel Kahneman, as also aptly illustrated by Carl Richards of the Behavior Gap in the sketch.

Each company had “strong management teams, defensive earnings and the kind of profitgrowing business models that should be able to survive all but the most severe of economic downturn”, the website said. Now all of that may well be true, but as at late November 2016, Westfield Corp shares were down 4.3 per cent, CSL was 4.7 per cent lower and REA Group was down 9.5 per cent compared with a positive market return of 1.2 per cent. Inevitably with these lists, some stocks will do well, while others will do poorly. Without seeking to denigrate the abilities of forecasters, it is a tough job to consistently outguess the market. It’s even tougher when your picks come out of a media list that many other people are reading.

I asked all participants in my survey the following two questions to test for signs of emotional bias stemming from risk and loss aversion, as used by Kahneman in his research. YOU HAVE TWO CHOICES:

QUESTION: OPTION 1

A sure gain of $250,000

In any case, a small portfolio like this is likely to be unnecessarily concentrated and open to what’s known as idiosyncratic risk — influences related to individual companies and sectors. For instance, another news outlet picked a UKbased financial services company as a possible “currency play” for 2016, saying it might benefit from the Australian dollar weakening against the British pound.

OPTION 2

A 25% chance of gaining $1 million and a 75% chance of getting nothing

Results showed that 79 per cent of respondents chose Option 1, and the remainder, Option 2. Our conclusion is that lawyers are less likely to take a risk to achieve an extra gain preferring to take the “bird in the hand” approach.

www.nzbar.org.nz

Well, that might have been a good idea at the time, but the AUD actually rose nearly 20 per cent against the pound after the UK’s vote to leave the European Union.

Another stock in that list, James Packer’s Crown Resorts, ran into trouble in October last year when Chinese authorities arrested 18 of the gaming giant’s staff as part of a crackdown on illegal gambling in China. So you can see that investing based on forecasts about individual companies is extremely difficult because you have to take into consideration so many moving parts and future events (that are by definition unexpected). You never know which markets will outperform from year to year. Just look at the table on page 27 showing various asset classes over two decades and their annual returns. If there is no obvious pattern, how can we invest with any assuredness? Harry Markowitz won a Nobel Prize in Economic Sciences for the novel concept that investors care about more than simply a great investment return. They also care about the certainty of getting that return. The more certain investors are, the lower the expected return they are willing to accept. But how can we measure certainty? Markowitz suggested that an acceptable method was standard deviation. It is a simple measure that calculates, essentially, the typical difference between a series of numbers and its average. A series of numbers all bunched up around the average has a low standard deviation. A series of numbers that vary widely around the average has a high standard deviation. For investors, the concept is perhaps even more intuitive. How consistent have their returns been? Have they been up and down like a rollercoaster (high standard deviation) or have they tracked at a consistent rate (low standard deviation). All things being equal, an investor would prefer to have a nice, consistent return. A return like that gives them a lot more certainty about the near future. Markowitz found something extraordinary in his research that most of us now simply take for granted. He found that if an investor held all the investments in a market (such as the NZX 50), they got about the same average return but at a much lower standard deviation as those picking their favourite shares. Believe it or not, that was an industry shattering discovery. If you can get the same benefits (returns) with more certainty (lower standard deviation), it could be a bit foolish to not take advantage of that.

Ever ridden in a car with worn-out shock absorbers? Every bump is jarring, every corner stomach-churning and every red light an excuse to assume the brace position. Owning an undiversified portfolio can trigger similar reactions. You can drive a car with a broken suspension system, but it will be an extremely uncomfortable ride and the vehicle will be much harder to control, particularly in difficult conditions. Throw in the risk of a breakdown or running off the road altogether and there’s a real chance you may not reach your destination. In the world of investment, a similarly bumpy and unpredictable ride can await those with concentrated and undiversified portfolios or those who constantly tinker with their allocation based on a short-term rough patch in the markets. Of course, everyone feels in control when the surface is straight and smooth, but it’s harder to stay on the road during sudden turns and ups and downs in the market. And keep in mind the fix for your portfolio breaking down is unlikely to be as simple as calling a tow truck. For that reason, the smart thing to do is to diversify, spreading your portfolio across different securities, sectors and countries. It also means identifying the right mix of investments (e.g. stocks, bonds, real estate) that aligns with your risk tolerance, which helps keep you on track to achieve your goals. Using this approach, your returns from year to year may not match the top performing portfolio, but neither are they likely to match the worst. More importantly, this is a ride you are more likely to stick with. “Markets are efficient, but there are different dimensions of risk (i.e. the market itself, company size, value and profitability) and those lead to different dimensions of expected returns. That’s what people should be concerned with in their investment decisions and not whether they can pick stocks, pick winners and losers among the various managers delivering basically the same product.” – Eugene Fama, 2013 Nobel Prize Winner (Economics) Just as drivers of suspensionless cars change their route to avoid potholes, people with concentrated portfolios may resort to market

www.nzbar.org.nz

The Mosaic: Illustration of Randomness of which Asset Class Return will be the best year to year

ASSET CLASS RETURNS - RANDOMNESS OF RETURNS - 1991 to 2016 (in New Zealand dollars)

1991

1992

1993

1994

1995

1996

1997

1998

1999

2000

2001

2002

2003

2004

2005

2006

2007

2008

2009

2010

2011

2012

2013

2014

2015

2016

Avg

New Zealand shares

26.2%

10.8%

47.8%

-7.2%

20.1%

17.3%

4.3%

-4.4%

13.3%

-8.0%

13.9%

-1.2%

25.6%

25.1%

10.0%

20.3%

-0.3%

-32.8%

18.9%

2.4%

-1.0%

24.2%

16.5%

17.5%

13.6%

10.1%

9.8%

Australian shares

44.0%

-7.5%

27.2%

-8.9%

13.7%

12.9%

11.9%

13.6%

28.6%

6.2%

8.0%

-20.1%

22.2%

21.0%

21.5%

29.6%

18.2%

-35.6%

42.1%

7.8%

-10.5%

15.0%

3.9%

1.8%

4.4%

9.0%

9.3%

Global large shares

28.9%

-0.5%

13.0%

-8.2%

18.1%

5.0%

40.1%

36.7%

26.9%

2.1%

-11.6%

-36.2%

6.0%

4.3%

15.7%

16.6%

-0.3%

-21.9%

4.5%

4.0%

-5.5%

9.4%

27.0%

10.6%

13.5%

5.3%

6.4%

Global value shares

24.4%

1.0%

20.2%

-6.8%

18.1%

5.7%

39.9%

26.9%

18.6%

17.7%

-9.6%

-36.3%

10.0%

7.7%

15.8%

21.5%

-5.5%

-21.5%

1.8%

1.5%

-5.5%

9.1%

27.0%

9.3%

9.0%

10.0%

6.8%

Global small shares

34.3%

1.2%

17.0%

-6.1%

10.0%

0.8%

12.3%

13.7%

28.9%

15.4%

7.2%

-33.1%

25.7%

13.0%

22.3%

13.8%

-7.9%

-23.5%

15.9%

17.4%

-9.0%

11.0%

32.7%

7.4%

14.1%

10.4%

8.2%

Emerging markets shares

83.1%

6.5%

66.9%

-19.3%

1.6%

4.2%

-0.9%

0.5%

69.0%

-18.7%

3.5%

-25.3%

24.1%

14.1%

41.7%

28.3%

27.5%

-38.5%

43.5%

10.7%

-18.4%

11.6%

-2.3%

3.1%

-2.6%

9.9%

8.9%

New Zealand property

-11.4%

-39.2%

-5.6%

2.8%

13.9%

23.3%

-1.8%

4.8%

-6.4%

7.3%

12.1%

10.4%

13.4%

20.0%

19.7%

24.9%

-4.3%

-20.8%

11.8%

3.4%

11.2%

20.5%

3.9%

24.2%

14.5%

3.8%

4.9%

Global property

5.9%

-3.8%

38.5%

-18.5%

13.4%

18.4%

32.9%

3.4%

-0.1%

44.1%

12.6%

-11.9%

11.5%

25.2%

17.9%

38.3%

-20.8%

-28.7%

9.5%

15.1%

0.1%

17.7%

3.1%

28.7%

14.2%

4.1%

8.9%

New Zealand fixed interest

10.0%

8.4%

6.8%

7.7%

7.9%

7.1%

6.2%

6.5%

6.8%

6.4%

6.5%

4.3%

5.9%

6.3%

5.9%

2.7%

15.4%

5.7%

8.7%

9.3%

6.3%

1.9%

7.4%

5.8%

4.1%

6.8%

Hedged global bonds

17.8%

10.9%

16.0%

-1.8%

21.4%

13.0%

12.8%

13.1%

0.4%

10.3%

8.2%

12.1%

6.3%

9.5%

9.1%

5.5%

8.9%

15.2%

3.5%

6.3%

8.3%

7.2%

2.2%

11.1%

4.5%

5.8%

9.0%

New Zealand cash

10.2%

7.1%

6.3%

6.9%

9.4%

9.8%

7.9%

7.3%

4.8%

6.6%

5.9%

5.7%

5.6%

6.3%

7.3%

7.7%

8.6%

8.3%

3.1%

3.0%

2.7%

3.4%

3.3%

2.3%

5.9%

1991

1992

1993

1994

1995

1996

1997

1998

1999

2000

2001

2002

2003

2004

2005

2006

2007

2008

2009

2010

2011

2012

2013

2014

2015

2016

Highest

83.1%

10.9%

66.9%

7.7%

21.4%

23.3%

40.1%

36.7%

69.0%

44.1%

13.9%

12.1%

25.7%

25.2%

41.7%

38.3%

27.5%

15.4%

43.5%

17.4%

11.2%

24.2%

32.7%

28.7%

14.5%

10.4%

44.0%

10.8%

47.8%

6.9%

20.1%

18.4%

39.9%

26.9%

28.9%

17.7%

12.6%

10.4%

25.6%

25.1%

22.3%

29.6%

18.2%

15.2%

42.1%

15.1%

9.3%

20.5%

27.0%

24.2%

14.2%

10.1%

34.3%

8.4%

38.5%

2.8%

18.1%

17.3%

32.9%

13.7%

28.6%

15.4%

12.1%

6.5%

24.1%

21.0%

21.5%

28.3%

8.9%

8.3%

18.9%

10.7%

8.3%

17.7%

27.0%

17.5%

14.1%

10.0%

28.9%

7.1%

27.2%

-1.8%

18.1%

13.0%

12.8%

13.6%

26.9%

10.3%

8.2%

5.7%

22.2%

20.0%

19.7%

24.9%

8.6%

-20.8%

15.9%

8.7%

2.7%

15.0%

16.5%

11.1%

13.6%

9.9%

26.2%

6.5%

20.2%

-6.1%

13.9%

12.9%

12.3%

13.1%

18.6%

7.3%

8.0%

-1.2%

13.4%

14.1%

17.9%

21.5%

2.7%

-21.5%

11.8%

7.8%

0.1%

11.6%

3.9%

10.6%

13.5%

9.0%

24.4%

1.2%

17.0%

-6.8%

13.7%

9.8%

11.9%

7.3%

13.3%

6.8%

7.2%

-11.9%

11.5%

13.0%

15.8%

20.3%

-0.3%

-21.9%

9.5%

6.3%

-1.0%

11.0%

3.9%

9.3%

9.0%

5.8%

17.8%

1.0%

16.0%

-7.2%

13.4%

7.9%

6.2%

6.5%

6.6%

6.4%

-20.1%

10.0%

9.5%

15.7%

16.6%

-0.3%

-23.5%

5.7%

4.0%

-5.5%

9.4%

3.1%

7.4%

5.8%

5.3%

10.2%

-0.5%

13.0%

-8.2%

10.0%

5.7%

7.1%

4.8%

6.2%

5.9%

-25.3%

6.3%

7.7%

10.0%

13.8%

-4.3%

-28.7%

4.5%

3.4%

-5.5%

9.1%

2.7%

7.4%

4.5%

4.1%

10.0%

-3.8%

6.8%

-8.9%

9.4%

5.0%

4.3%

3.4%

0.4%

2.1%

3.5%

-33.1%

6.0%

6.3%

9.1%

7.7%

-5.5%

-32.8%

3.5%

3.0%

-9.0%

7.2%

2.2%

3.4%

4.4%

4.1%

5.9%

-7.5%

6.3%

-18.5%

7.7%

4.2%

-0.9%

0.5%

-0.1%

-8.0%

-9.6%

-36.2%

5.6%

5.9%

7.3%

5.9%

-7.9%

-35.6%

3.1%

2.4%

-10.5%

6.3%

1.9%

3.1%

3.3%

3.8%

-11.4%

-39.2%

-5.6%

-19.3%

1.6%

0.8%

-1.8%

-4.4%

-6.4%

-18.7%

-11.6%

-36.3%

4.3%

6.3%

5.5%

-20.8%

-38.5%

1.8%

1.5%

-18.4%

2.7%

-2.3%

1.8%

-2.6%

2.3%

Lowest

Sources: NZ Shares: 01/1991 to 06/1991 NZX 10 Capital Appreciation Index; 07/1991 – 01/2001 NZSE 40 Accum Index, Gross of Dividends; 02/2001 to Present NZX 50 Gross Index. Australian Shares: S&P/ASX 200 Total Return Index. Global Large Shares: MSCI World Index. Global Value Shares : MSCI World Value Index. Global Small Shares: DFA Global Small Trust (gross of fees) Jan 1991 to Dec 1998. MSCI World Small Index Jan 1999 to present. Emerging Markets Shares: DFA Emerging Market Trust (gross of fees) Jan 1991 to Dec 1998. MSCI Emerging Markets Index from Jan 1999 to present. NZ Property: New Zealand Property Index (Price only) from Jan 1991 to Jan 1997. New Zealand Property Index (Gross Dividends) from Feb 1997 to June 2015; July 2015 to Present S&P/NZX All Real Estate Gross Index. Global Property: UBS Global Real Estate Index (Gross Dividends) from Jan 1991 to Dec 2014. S&P Developed REIT Index (net div.) from Jan 2015 to present. NZ Fixed Interest: NZX 10 Yr Govt Bonds from Jan 1991 to May 2003. ANZ Corporate A Bonds from June 2003 to present. Hedged Global Bonds: Citigroup World Government Bond Index Hedged to NZD to Dec 2012. Barclays Global Aggregate Bond Index Hedged to NZD Jan 2013 to present. NZ 30 Day Bank Bills: NZ One Month Bank Bill Yields.

timing and constant trading as they try to anticipate the top-performing countries, asset classes, and securities. The effect of trading frequently on your portfolio is similar to what happens to soap when you wash your hands too frequently. It will eventually disappear. It is our role as financial advisors to help you tune your ride. To keep an eye on your shock absorbers and help you to navigate the various potholes and pitstops. Through diversification you reduce the risk and get more certainty over the results, which is key for long term financial planning, i.e. to know with as much certainty as possible that you won’t run out of money. The more diversified your portfolio, the more likely your plan will work out. Some people think diversifying means lower returns. This isn’t true, it means less risk and therefore more certainty, or a smoother ride, less worry, and more peace of mind. Diversify? Five reasons why… 1. Helps you capture what global markets offer;

3. May prevent you from missing opportunities; 4. Smooths out some of the bumps; 5. Helps take the guesswork out of investing. Legal Tender Laetitia’s book explores the ideas of family stewardship, typical money behaviours, attitudes towards money, and lawyers’ views on wealth creation. It delves into the psychological effects of money and the impact of stress and financial worries, as well as the importance of personal resilience and creating a legacy worthy of a life well lived. Legal Tender will change the way you look at the value of your work as a lawyer. * Laetitia Peterson is a personal wealth adviser. She has worked with companies such as Goldman Sachs and boutique funds management firm Liontamer, which she co-founded with Janine Starks. She is now the CEO and founder of The Private Office, helping successful lawyers achieve the financial goals important to them and their families.

2. Reduces risks that have no expected return;

www.nzbar.org.nz

Queen’s Counsel 2017 The NZBA warmly congratulates the 2017 Queen’s Counsel appointees. They are (in call order)*: Professor Tony Angelo QC Professor Tony Angelo is currently Professor of Law at Victoria University of Wellington. He is a VUW graduate. He has been a member of the profession since 1965. After a study stint abroad he was appointed to the VUW Law Staff in December 1967. His research focusses on small states law and particularly on the islands of the Pacific. A long attachment to the Mauritius Attorney General’s office involved major law reform work. Since 2009 Professor Angelo has been heavily involved with the government of Seychelles in access to law and law reform related matters. Professor Angelo says that his QC appointment is a great way to celebrate 50 years as a lawyer. John Dixon QC John Dixon graduated with a BCom and LLB (Hons) from the University of Auckland and a LLM from the University of Chicago. He was admitted in 1992 and practised in New York from 1994 to 2003, first at the law firm Sullivan & Cromwell and then as a prosecutor for the Kings County District Attorney in Brooklyn. After returning to New Zealand he joined Meredith Connell and was a partner in that firm from 2007. Mr Dixon joined the independent bar in 2015 and specialises in competition and consumer law, and criminal prosecution and defence. Suzanne Robertson QC Suzanne Robertson graduated with a BCom, LLB (Hons), and a LLM (First Class Honours) from the University of Auckland. She was admitted in 1990 and joined Chapman Tripp, before spending some time in the United Kingdom. She joined Bankside Chambers in 2007. Ms Robertson says that she is immensely grateful to her colleagues and mentors mainly within, but also outside Bankside Chambers who encouraged and inspired her to take on greater roles. It has

been challenging and rewarding to develop a varied barrister’s practice in areas as diverse as relationship property and competition law. She hopes her appointment to the rank of Queen’s Counsel serves to encourage other female barristers to hang in there and to aim high. Rachael Reed QC Rachael Reed graduated with an LLB (Hons) from Victoria University, and was admitted in 1996. She worked at Chapman Tripp and the Serious Fraud Office before joining Meredith Connell in 2003. After spending some time in the London firm Byrne and Partners, Ms Reed returned to Meredith Connell in 2006 and joined the independent bar in 2012. Ms Reed specialises in serious and complex fraud and is a member of the Serious Fraud Office Prosecution Panel and the Crown Panel (Auckland and Manukau). Paul Borich QC Paul Borich graduated with an LLB from the University of Auckland was admitted in 1988. He joined the Auckland firm Rice Craig and became a partner in that firm in 1996. In 2014 Mr Borich joined the independent bar. He specialises in criminal law, including criminal appeals to the Court of Appeal and Supreme Court. Paul says that he is delighted by the honour. He is grateful to those making the appointment, thereby acknowledging the Manukau and wider South Auckland Bar. Adam Ross QC Adam Ross graduated with a BA and LLB (Hons) from the University of Auckland, and an LLM from the University of Virginia. He was admitted in 1989 and joined Kensington Swan, before becoming a partner in Chapman Tripp in 1996. Mr Ross joined the independent bar in 2015. He specialises in commercial and corporate litigation, commercial crime and regulatory offences, and liability insurance.

www.nzbar.org.nz

Jennifer Cooper QC Jennifer Cooper graduated with a BA and LLB (Hons) from the University of Otago, and a BCL (first class) and MPhil from the University of Oxford. She was admitted in 1995 and worked for the UK Foreign and Commonwealth Office from 1998 to 2002, which included working with international courts and tribunals as Second Secretary at the British Embassy in The Hague. Ms Cooper joined Bell Gully in 2003, becoming a partner in that firm in 2009. In 2011 Ms Cooper joined the independent bar and specialises in financial markets, securities law, competition and fair trading, and insolvency.

Baker & McKenzie, he returned to Kensington Swan in 2003 where he became a partner in 2004. Mr Blanchard joined the independent bar in 2008 and has a general commercial litigation practice, specialising in insolvency and taxation. Dr Campbell Walker Dr Campbell Walker graduated with a BA and LLB (Hons) from the University of Auckland, a LLM from Yale University, and a PhD from the University of Cambridge. He was admitted in 1992, and between 1998 and 2003 he practised international arbitration in the Paris and London offices of Shearman & Sterling. In 2004 he returned to New Zealand and was a founding partner of Auckland firm Gilbert Walker. In 2014 he joined the independent bar and specialises in arbitration, contract, insurance and professional negligence. Dr Campbell would like to thank all the members of the profession who have sent him kind messages of support. He also congratulates the other appointees.

Simon Mount QC Simon Mount graduated with a LLB (Hons) and a LLM (distinction) from the University of Auckland and a LLM from Columbia Law School. He was admitted in 1995. He joined Meredith Connell as a Crown prosecutor in 2000 before going to the independent bar in 2010. Mr Mount has held teaching positions at Columbia Law School and University of Auckland. Since 2015 he has been the Attorney-General for the Pitcairn Islands. His practice focuses on public inquiries, public and regulatory law, and professional disciplinary proceedings. Andrew Barker QC Andrew Barker graduated with a BA and LLB (Hons) from the University of Auckland and an LLM from the University of Toronto. He was admitted in 1995 and joined Russell McVeagh. Following post-graduate study, Mr Barker joined the Law Faculty at the University of Otago in 1999 where he lectured in Tort law and Civil Procedure. He joined the independent bar in 2002. He practices in commercial litigation with a particular specialty in trusts, construction litigation and financial services regulation. â&#x20AC;&#x192; Greg Blanchard QC Greg Blanchard graduated with a BA and LLB (Hons) from the University of Auckland. He was admitted in 1996 and joined Kensington Swan. After two years at the London office of

www.nzbar.org.nz

Grant Brittain QC Grant Brittain graduated with an LLB and was admitted in 1991. Before joining the independent bar in 2002, he practised civil and commercial litigation in Wellington, Auckland and Tauranga. Mr Brittain is based in Tauranga and has a general civil practice, specialising in claims in contract and tort arising out of construction issues. Dr James Every-Palmer QC Dr James Every-Palmer graduated with a BA (Hons) and LLB (Hons) from the University of Otago, a LLM from Harvard Law School, and a DPhil from the University of Oxford. He was admitted in 1994 and gained international experience at the OECD, the International Monetary Fund and the New York firm Sullivan & Cromwell before joining Russell McVeagh in 1998. He became a partner in that firm in 2001 and joined the independent bar in 2013. Dr Every-Palmer specialises in commercial litigation with a focus on economic regulation and competition law. * The material in this article is from the announcement of the 2017 Queenâ&#x20AC;&#x2122;s Counsel appointments by the Attorney-General, Hon Christopher Finlayson, See https://www.beehive.govt. nz/release/appointment-queen%E2%80%99s-counsel-1

Cyber Risk: the Digital Dark Side Marsh*

As wonderful as the internet has been for revolutionising our lives and how we do work, it also came complete with a dark underbelly and all the risks associated with a world that is now always online and constantly connected. What is Cyber Risk? For the modern barrister, there is a strong reliance on the use of emails, office computer networks and mobile devices which all face an element of cyber risk. Industry experts forecast the level of cyber risk and frequency of cyber attacks will continue to rise year on year. In other words, cyber criminals are very much a real threat to deal with in 2017, and the legal industry is not immune.

Common attacks All data means something to someone. With 60% of cyber attacks aimed at small to medium size businesses in New Zealand, the risk in the legal industry is high. You may have virus protection software or your data stored in the cloud, but that doesn’t mean your business is immune from sophisticated hackers. Your common data protection steps may not stop a staff member clicking a bogus email link or inadvertently sending sensitive data. The below points highlight some common types of cyber attacks to the legal industry. Ransomware – Ransomware is a type of malicious software that automatically locks or encrypts data and information that may be critical to carrying out your business operations. This could include case files or sensitive client information. Once embedded in your system, this software demands a ‘ransom’ in exchange for a key to unlock your data. The costs for data forensic and IT experts to find the source of the breach, isolate it and remediate it could be substantial. Cyber insurance policies are

Company directors in New Zealand regard cyber risks as the number one threat to disrupting their business operations. Small to medium businesses, such as a typical barrister, are the most vulnerable and yet the least likely to be prepared for an attack due to the relatively ‘soft’ nature of their cyber security. The damage done to your income, clients and reputation could be immense.

www.nzbar.org.nz

designed to cover you for these types of costs.

Cyber works best in conjunction with other policies that include a Crime component in their cover, such as a Management Liability policy. Currently, not all cyber policies have a crime / fraud component because insurers are cautious about taking on too much risk. In essence Cyber provides first party cover – especially for consultation and recovery costs that may be incurred as a result of a cyber breach.

Phishing / Whaling Emails – With the amount of free information available online, these attacks involve a cyber-criminal carefully observing and gaining knowledge of you and your business. The aim is to manipulate sensitive information or money from a business generally by impersonating someone in a position of influence, such as a client, office manager or personal assistant. A convincingly written and presented email could then target an office accountant with a substituted bank account, requesting for them to urgently transfer money to a solicitor or client. The loss would not be covered by a traditional insurance policy, but the gap in cover could be filled by either a crime policy or a relevant cyber insurance policy. These policies work best in conjunction to ensure that as many risks as possible are covered.

Why would I need cyber insurance when I use the cloud?

Overall, cyber criminals work to extort victims for nothing more than financial gain. By hitting multiple small targets on a regular basis, these attacks could add up to a substantial amount of money – making cyber crime one of the most lucrative black market industries of the new century. They often rely on human error to either naively carry out instructions or to click on a malicious link that could compromise an entire network. Because people will always be a part of business (for the foreseeable future at least), no amount of cyber security will be able to protect you 100%. Frequently Asked Questions Why should I buy a Cyber policy? While you may think your standard insurance policies will provide the appropriate cover, most will not respond to cyber-related events that cause an interruption to your business or the associated costs that come with responding to a loss of data or systems breach.

Cloud service providers commonly have a contractual agreement which contains a ‘liability limitation,’ ‘hold harmless’ or ‘no subrogation rights’ clause. From our experience, cloud service providers such as Amazon and Google will limit their liability to a trivial amount (commonly less than USD$50) or to the fees paid for the service. While it is likely that the cloud provider will not compensate the insured for any costs relating to a data breach (notification, defence costs, compensation), a tailored cyber policy will respond to any resulting third party claims and business interruption costs. What’s the difference between Internet Liability cover and Cyber Insurance? A standard internet liability policy primarily covers errors and omissions stemming from your website content, or while using the internet. It provides very similar coverage to what is offered under a Professional Indemnity policy, including breaches of intellectual property, breach of confidentiality and transmissions of computer viruses, but is limited in the sense that it does not include any first party loss cover. It would not cover business interruption costs should your systems become inaccessible, or provide any forensic, IT, PR or other specialist consultant expenses to mitigate and assist in the event of a network-attack. It also would not cover the repair, restoration or replacement of your data lost as a result of a cyber event.

Many of your current policies, including Material Damage and Business Interruption (MDBI) along with General Liability, have e-commerce or electronic data exclusions which preclude coverage. Case law has determined that these policies are intended to cover tangible assets only. Cyber insurance has been designed specifically to deal with the threats faced when operating in a digital world.

www.nzbar.org.nz

For more information on Marsh Cyber policies contact Mark.Rogers@marsh.com

Online registration might seem complex but is actually straightforward, once you get started. In this article, I will take you through the registration process using this year’s annual conference as an example. Training/Events The training and events menu is where you will find all NZBA events. The banner scrolls across with upcoming events but scroll down the page to see the full list of events in date order. Currently the conference is near the bottom of the list. Click on the heading to visit the main conference page.

Click on the Register Attendees button in the blue box near the bottom of the screen. You will need to enter your email address and choose lookup to ensure you are charged the appropriate price for your ticket (0-7 PQE receive discounts). Complete the fields on the form as instructed. These fields will determine your lanyard name tag information, and any special dietary or other requirements we need to cater for. Select add to cart.

The difference between registering for the conference and registering for a webinar or dinner is that the conference has multiple options to choose from. The best way to approach the multifaceted conference registration is to know what you want before you start the registration process. Read the conference information on the main page, download the conference brochure, the optional activities brochure, the accommodation brochure and accommodation booking form. Once you have looked at these and decided what you want in the way of conference attendance (full conference or conference without Friday dinner) you are ready to start the registration process. If you are not already logged in you will need to login. Use your email address as your login and your password. If you don’t know your password choose the Forgot your password link to set a new password. Once you are logged in choose the relevant Book Now button (middle of the screen or right side menu).

Adding your optional activity Now choose your optional activity. You will have read the information sheet but if not go back and read about this year’s available options. From the main page, click on the link next to your choice of optional activity. Scroll down and select add to cart.

www.nzbar.org.nz

Here you will see pricing information for partner tickets and have the opportunity to complete an online form with your partner’s choices. We will process your partner form and send you an invoice for your partner’s attendance. Other things you need to do Remember you will need to arrange your travel and accommodation. You are welcome to use our travel agent, Faye Bantjes at Corporate Traveller (faye.bantjes@corporatetraveller.co.nz). Faye may be able to assist if flights become very full.

If you are bringing a partner we will cover that shortly – complete your booking first. Finalising your booking

We have secured preferential rates at nearby hotels. Details are available on the conference pages and a form can be completed and sent directly to Michael Hartmann michael. hartmann@scenicgroup.co.nz. Michael is coordinating accommodation bookings.

Scroll up to the top of your screen and click on your Cart. It should have two items; your conference ticket and your optional activity. If it has anything you don’t want or multiple tickets click remove to get rid of any you don’t want, and click on update cart. Then choose checkout. Select your payment option: • • •

On account means you can pay later by cheque or bank transfer; Internet banking with POLi will take you to a screen where you choose your bank and this will redirect to your bank so you can login to internet banking and pay immediately; Credit card enables you to pay immediately by Mastercard or Visa.

Check your billing details. Change any as necessary and choose next. Choose place order at the bottom of the next screen. This will finalise your booking. Check your email. The system will have sent you two confirmation emails (conference and optional activity) and an invoice. Partner attendance If you would like to bring a partner to either of the conference dinners, or an optional activity please return to the main conference page and click the link relating to partner options.

www.nzbar.org.nz

If you have managed to navigate your way to the end of this process you can pat yourself on the back. We know it’s a bit arduous and apologise for that. However, once it’s done you can rest assured that conference registration is the most complicated of all of our registration processes. Most of our events are very simple to register for and we really do appreciate your patience and persistence. If you really do continue to struggle please give us a call on (09) 303 4515 between 9am-3pm and we can talk you through the process, or if all else fails register for you. The new website is a bit of a challenging learning experience for the NZBA Secretariat and probably for a few members, but its added functionality and updated look make mastering it worth the effort. * Lisa Mills is the NZBA Administrator and is happy to help you with all your membership or website questions. Please email her at nzbar@nzbar.org.nz.

Sentencing Competition By Tessa Vincent*

The New Zealand Bar Association and Ministry of Justice hosted in May our first Sentencing Advocacy Competition for Victoria University law students. The new competition was greeted with enthusiasm and 16 competitors took part in the preliminary rounds. Students were required to put together written submissions and to present these orally in assigned courtrooms at the Wellington High Court. Lawyers from around Wellington took time out of their busy schedules to help with the judging. The students were grateful for the in depth of the feedback that was provided. The lawyers enjoyed the experience too, many commenting on how exciting it was to face the courtroom from the opposite direction! Four students were selected for the semi-final and were greeted by Dobson J and Simon France J. The students faced the same factual problem as the preliminary round with the added dimension of swapping from prosecution to defence (and vice versa). Alex Ladyman, Harrison Cunningham, Samantha Hunt and Julia Spears illustrated promising advocacy skills in submitting the appropriate sentence for Ms Johnson who had pleaded guilty to one charge of wounding with intent to cause grievous bodily harm. The students took on the complexities of the advocacy role with aptitude.

death. Ms Spears, counsel for the defence, submitted a sentence of home detention was most appropriate. Mr Cunningham, for the Crown, drew out the aggravating factors of driving under the influence, inexperience and use of a cell phone to submit that a sentence of imprisonment was more appropriate. Thomas J thanked counsel for their helpful submissions and provided feedback as to performance and what she considered to be the appropriate final sentence. Attendees then enjoyed drinks and nibbles in the jury room. Many students commented on how enjoyable they found the competition and how useful it was to develop practical courtroom skills. Thomas J in announcing the winner noted how impressed she was with the quality of the submissions and how her decision was a close call. Harrison Cunningham was announced the winner on the day and Julia Spears runner-up. Both were presented with their prizes from the Bar Association by Thomas J and Lisa Hansen. We thank all those who were involved in the competition and we look forward to the 2018 competition. * Tessa Vincent is Clerk to Hon. Justice Collins and to His Honour Associate Judge Smith at the High Court in Wellington.

Harrison Cunningham and Julia Spears were selected as counsel for the final round in the Number One Courtroom at the High Court in Wellington. The public gallery was packed with budding lawyers and supporters, including Lisa Hansen from the New Zealand Bar Association. The final problem was difficult and involved a young American tourist who had driven on the wrong side of the road to end up on the wrong side of the law. The defendant pleaded guilty to one charge of dangerous driving causing

www.nzbar.org.nz

The 83rd

22-24 September

DEVILâ&#x20AC;&#x2122;S OWN GOLF TOURNAMENT WORLD FAMOUS AND IN PALMERSTON NORTH

Entries now open! www.devilsown.org.nz

With grateful thanks to our wonderful sponsors

Petrol Heads’ Corner David O’Neill*

Targa Hawkes Bay 2017 This was the inaugural Targa Hawkes Bay event. We have never had a dedicated Hawkes Bay event previously. My pick is that they moved Rotorua away from the May time slot because of lousy weather and sent it to the Hawkes Bay because the Hawkes Bay is always sunny – right? Wrong! It was pretty foul all weekend. That weekend the roads were greasy with little grip (as I will show later) throughout. Those glorious roads that I have raved about in past reports were driven over very gingerly by all competitors. Those that didn’t drive gingerly found out to their cost that a greasy road is a greasy road and it doesn’t matter where it’s situated.

Toyota GT86 variant which has a reasonably modest motor, out brakes and out turns my car by a considerable margin. I have got to get really silly to even stay within 30 seconds on a stage with such a car. All the others leave me for dead. Anyway – long story short we didn’t finish. I picked the longest stage of the rally to have my “off”. We were trundling through a gorge which was, believe it or not, midway through a 48km stage and travelling down the gorge round a very slight left-hand bend, the back end decided

We arrived in sunshine but that soon went down the gurgler as the next morning we got away in wet weather. It was also cold. We have, as I have said before, run at the slow end of the modern field. Our car, which used to be a weapon of choice, has now become very much an “also ran”. Even cars in our class (1600cc-2000cc) have all sorts of goodies attached to them to such an extent that the

www.nzbar.org.nz

to race the front end round the corner. I hadn’t braked and hadn’t done anything dopey (or so I assumed) and proceeded to then end up going backwards down the road. The front right wheel hit a large rock on the side, bounced the car up in the air and then spun it around again so we were facing the correct way, whizzing down the side of the road.

next stage. We were able to finish and then tour over the finish line in a slightly dishevelled state.

It made a mess of the front right wheel. That wasn’t the end of it. We stopped on the side of the road round a slight bend but stopped on a rock. In front of us was very little bank and to the left of us was a slope of about 15m down into the river.

Mercedes Benz E43AMG I haven’t ever driven a Mercedes Benz until now. Believe it or not I’ve been in a few, but I have never ever driven one. So this was my first experience with one...

It was our lucky day. I estimate we were doing about 120km/h when we spun, and hitting the rock with the right front, (as we were going backwards) stopped us going into the river. Likewise when we hit the next rock (which managed to bend most of the undercarriage), it stopped us going down the slope and, again, into the river. More luck was upon us. The tyre which by this stage, as you will see from the photo, had sheared off the wheel, was lodged in the arch of the wheel housing which kept the brakes off the road, otherwise I would have wrecked the brakes and probably some of the suspension. The car is now in surgery and will need to be straightened and get some new wheels. You will be pleased to know, you faithful followers, that the chicken, which is cable tied to the number plate, has survived this onslaught and still leads the charge. If you look closely at the photograph showing the front of the car where it’s lodged up against one of NZTA’s marker posts, you will see the small yellow chicken tied to the number plate.

I am back for the Targa NZ, which this year travels from Auckland down through Hamilton, over to New Plymouth, down through Palmerston North and around Wellington. I will report later.

MBNZ arranged for their 2017 Mercedes AMG E43 to be delivered to Hamilton where I picked it up for a week. To give you an idea, this model is nearing the top end of the range of the E class range. In fact the only thing bigger and better than this is the E63 AMG which has a 4L V8 in it. This was the 3L V6 bi-turbo version with the all singing, all dancing bells and whistles. The car I received was described as “obsidian black metallic”. They weren’t wrong. It was very black and very glossy. Inside it was equally as black with black leather, black headlining and black everything else. If you were wearing black you would probably disappear. Specs • Engine – 3L 6 cylinder bi-turbo • Power – 295kw – that’s up there! • Torque – 520nm – not bad! • Acceleration 0-100 (as claimed) 4.6 seconds – good!! • Economy – 8.4L/100km – optimistic I reckon. Generally Price-wise the car, as given to me, was $168,900.

Believe it or not, once everybody had gone through and past us, the recovery crew came along, dragged us out backwards, whisked the side of the car up in the air, put the spare on and we drove out, albeit slowly. The crew had been notified and once we got to the end of the stage, they jacked us up in the air, checked everything out, got the wheels rotated and in the right place and away we went in enough time to make it to the beginning of the final stage of the rally. We only missed the rest of that long stage which we crashed in and the

www.nzbar.org.nz

Because it was their press use car, it had a lot of optional extra equipment. Standard equipment lists are long enough but the optional extras come as packages. I’m not quite sure which package mine had. I had to go through a half hour briefing with the sales person and immediately forgot just about everything she told me. It wasn’t her fault, it’s just that I was in a hurry to get back to work (No – work isn’t that exciting – it’s just that I had a lot to do). Notwithstanding that, the car I got was very smart and was a great deal bigger than it looked. It doesn’t look that large but it is on the inside and, when fitting it into the garage, is on the outside. I did my usual test by taking it to the beach loaded up with cats, kids, food etc. It was a foul night to drive but the car was very comfortable and you felt cosseted all the way over to the beach. The one thing that struck me as super impressive, compared with all the other cars that I have driven, were its headlights. These were astounding. They were the new style headlights. When they were put on full, it was like somebody was drawing back a curtain and you would be hard-pressed to “out drive” the lights. They were astonishing.

It had everything that opened and shut as most of these cars do and I’m sure with a bit of time behind the wheel, I would get to work out where everything was. As it was, the features became a little bit lost in translation, so to speak, and I wasn’t properly able to utilise all the features of the car as I would have wished. Having said that, I have to say that it was a lovely car to drive with plenty of stonk. When you wanted to hit the loud pedal, it took off like a scalded cat. However it did so in enormous comfort and style and it was a head turner. If you love Mercedes Benz and you feel like shelling out close on $170,000 then you couldn’t go far wrong with one of these. But then – why muck around. Go on! Don’t go all eco-friendly and buy the E – whatever small motor version – get the E63 V8 – the big grunter. Do it! You know you want to……….. * David O’Neill is not an eco warrior. Electric cars, greenhouse gases and climate change are topics he will not be writing about in spite of the Sub Editor’s best efforts. He is, however, a Hamilton barrister, the Treasurer of the NZBA , and the Editor-in-Chief of At the Bar – when he is not hooning around in grunty cars and screaming yahoo out the window... [let’s see if he edits that out! Sub-Ed]

New Members April – July 2017 Mr Steven (Steve) Bird AUCKLAND Mr Paul Borich QC AUCKLAND Mr Paul Bradford ASHBURTON Ms Bridget Byers DUNEDIN Mr Ian Carter LOWER HUTT Miss Zoe Caughey CHRISTCHURCH Mr Corbin Child CHRISTCHURCH Mr Michael (Mike) Colson WELLINGTON Dr David Cooper AUCKLAND Ms Tiffany Cooper AUCKLAND Mr Gary Davis CHRISTCHURCH Ms Genevieve Denize (rejoined) TAURANGA Mr Darren Foster HASTINGS Ms Moevao (Vao) Gale MANUKAU CITY Mr Toby Gee WELLINGTON

Mr Bryan Green Mr Richard Jenson Ms Amy Keir Mr Lachlan Muldowney Ms Angeline Nielsen Ms Arezou Nobari Mr Lawrence Ponniah Mr Jonathon (Jono) Ross Ms Sonya Singh Ms Jannah Stringer Mr Kevin Thompson Ms Victoria Whitfield Ms Sarah Wroe Mr Jason Zwi

CHRISTCHURCH TAURANGA CHRISTCHURCH HAMILTON AUCKLAND CHRISTCHURCH AUCKLAND INVERCARGILL AUCKLAND CHRISTCHURCH AUCKLAND HAMILTON AUCKLAND AUCKLAND

www.nzbar.org.nz

Events

Wellington Bench and Bar Dinner â&#x20AC;&#x201C; 29 June 2017 The Wellington Bench and Bar dinner was held at Royal Port Nicholson Yacht Club in the middle of a busy week for Wellington. Members of the Bar and Judiciary wined and dined and were entertained by Max Duthie who recounted, with a great deal of humour, lessons from his days as a professional rugby player and now as a sports lawyer travelling with the Lions team.

Paul Radich QC and Cassandra Kenworthy

Terence Stapleton QC, Paul Radich QC and Paul Morten

Peter McKnight, Bronte Corke and Matthew Sherwood-King

Gareth Richards, Mary Scholtens QC and Michael Lennard

Hon. Justice Denis Clifford, visiting English Silk Alex Gunning QC and Jonathan Gunning

Ian Gordon, Kathryn Beck, Erin Judge and Dr James Every-Palmer QC

Richard Fowler QC, Ann Fowler and Bryan Gundersen

Paul Radich QC and Alex Gunning QC

Mary Scholtens QC and Toby Gee

Hon. Justice Denis Clifford

Sir Grant Hammond KNZM and Christopher Griggs

Guest speaker, Max Duthie

www.nzbar.org.nz

2016 - 2017 COUNCIL CONTACT DETAILS 2013-2014 COUNCIL CONTACT DETAILS CLIVE ELLIOTT QC – President Ph: +64 9 307 1769 elliott@shortlandchambers.co.nz JENNY COOPER QC Ph: +64 09 309 1769 jcooper@shortlandchambers.co.nz PETER DAVEY Ph: +64 9 309 0475; Fax: +64 9 354 3850 peter@davey.co.nz JOHN DIXON QC Ph: +64 9 306 2775 john.dixon@shortlandchambers.co.nz JONATHAN EATON QC - Vice President Ph: +64 3 372 3466 j.eaton@bridgesidechambers.co.nz SIMON FOOTE Ph: +64 9 307 8784 swbf@simonfoote.co.nz LISA HANSEN - Vice President Ph: +64 4 914 1052 l.hansen@barristerscomm.com DALE LESTER Ph: +64 3 366 1465 dale@canterburychambers.co.nz LARA MANNIS Ph: +64 9 600 5509 lara@richmondchambers.co.nz JANE MEARES Ph: +64 4 974 5952 jane.meares@cliftonchambers.co.nz TIHO MIJATOV Ph: +64 4 472 9025 tiho.mijatov@stoutstreet.co.nz DAVID O’NEILL – Treasurer/Vice President Ph: +64 7 839 1745 david.oneill@nzbarrister.com PAUL RADICH QC Ph: +64 4 974 5951 paul.radich@cliftonchambers.co.nz GRETTA SCHUMACHER Ph: +64 9 309 1769 gschumacher@shortlandchambers.co.nz ROB STEVENS - Associate Member Representative Ph: +64 9 302 1963 rob.stevens@pds.govt.nz DEAN TOBIN Ph: +64 3 477 8781 dean.tobin@princeschambers.net