At the Bar June 2011

At The Bar June 2011

Contempt of court reviewed NZBA’s 2011 conference theme is “The Modern Barrister” Judge Harvey on new technology and the law Expert witness immunity abolition expected in New Zealand

INSIDE THIS ISSUE Pg 2 - Contempt of Court Examined in Issues Paper Pg 4 - New Technology Poses Challenges for Law - Judge Harvey Pg 6 - NZ Would Follow UK Abolition of Expert Witness Immunity - QC Pg 7 - 2011 NZBA Conference Theme is “The Modern Barrister” Pg 8 - Legal Aid Changes Have Serious Implications - CBA President Pg 9 - Alternative Business Structures Implemented in United Kingdom Pg 10 - AMINZ National Conference: Taking Charge of the Future Pg 11 - Bench and Bar Dinner, Wellington Club Pg 12 - New Members of the NZBA Pg 12 - Joint AWLA/NZBA Seminar for Women Lawyers Pg 13 - United Kingdom Plans “Centre of Legal Excellence” Pg 14 - NZLS Paper Recommends Abolition of Intervention Rule Pg 15 - NZBA Submission On Draft Discovery Rules Urges More Changes Pg 16 - Obituary - Richard Craddock QC Pg 17 - Obituary - Dr George Barton QC Pg 18 - Summary of Minutes of NZBA Council Meeting Pg 19 - Disaster Relief

EDITOR Catriona MacLennan Tel: 0064 9 378 0964 Email: catmac@orcon.net.nz EDITORIAL COMMITTEE Clive Elliott Tel: 0064 9 309 1769 Email: elliott@shortlandchambers.co.nz Melissa Perkin Tel: 0064 9 303 4515 Email: melissa.perkin@nzbar.org.nz Design and layout by Hot Lobster NEW ZEALAND BAR ASSOCIATION Tel: 0064 9 303 4515 Fax: 0064 9 303 4516 Email: nzbar@nzbar.org.nz Web: www.nzbar.org.nz P O Box 631 Auckland 1140

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Contempt of Court Examined in Issues Paper The current law of contempt was considered unsatisfactory both by the judiciary and by the traditional media because the law and its applicability were uncertain in too many important respects, said Victoria University Faculty of Law Professor and Dean, Tony Smith.

Professor Smith was in November 2009 invited by Attorney-General Christopher Finlayson to advise on the reforms that might be necessary or desirable to the law relating to contempt of court. His 126-page issues paper, Reforming the New Zealand Law of Contempt of Court, was released in April 2011.

Professor Smith said that there had recently been a number of expressions of concern about the law of contempt. The Court of Appeal in Siemer v Solicitor-General [2009] NZCA 62 had invited the legislature to intervene in the field.

There had also been complaints by representatives of the traditional press, who had protested that the law was unduly restrictive, particularly when their position was contrasted with the laxity that appeared to govern the world of the new media. There had been suggestions that the procedures were not fair and the Supreme Court had commented adversely on the troublesome distinction between civil and criminal contempt in Solicitor-General v Siemer [2010] NZSC 54.

Although there were sharply conflicting views among observers, Professor Smith said that there was agreement that the position was unsatisfactory. In an area of law in which freedom of expression was often intimately concerned, there was a danger that the law would exercise a chilling effect. Professor Smith said that it was a matter for discussion whether the uncertainties exposed in his paper were such that they were capable of resolution solely through the courts and judicial development.

He said that questions arose as to whether it was time to pursue the suggestion that the law should be the subject of legislative attention, as well as whether the time had now come when the law should clarified, both by being put into statutory form and by the use of delegated legislation in the form of Practice Directions. Professor Smith said that the latter could be directed to some of the procedural difficulties that attended the law of contempt. If there was to be reform, the underlying question was whether it should be comprehensive, or whether piecemeal development was still the better way forward.

Professor Smith said that, in the United Kingdom, piecemeal reform had been pursued. The Contempt of Court Act 1981 had in no sense been an attempt to replace the common law with a code. It had left the common law of contempt largely intact, but had altered certain features of its operation, such as by clarifying when the “strict liability” rule began and ceased to have effect. Professor Smith said that, arguably, it would be more consistent in the New Zealand context to copy the stance that had been taken when the Criminal Code Act had been enacted, by abolishing the common law contempt jurisdiction altogether.

• inaccessibility of the law – the law

was rather obscure and inaccessible, yet contempt problems could arise suddenly and prompt action might be required.

• lack of clarity in the law – the document said that there were a number of areas in which the law of contempt was unclear, including the liability of editors, and disagreement at the highest judicial level about the application of section 24(c) of the New Zealand Bill of Rights Act 1990.

• The modern media and the law of contempt – Professor Smith said that the law had been formulated and developed before the age of the internet and blogging, with new technology arguably rendering much of contempt law either out of date or obsolete.

The document went on to pose 16 questions for submitters. These were – • what disadvantages would flow from codification of the law of contempt ?

• should the right to fair trial take priority over all other protected rights ?

• were the measures employed by the courts adequate to ensure that trials were conducted fairly ?

• if the law were to be codified or put into statutory form, should the test for contempt be that it created a “real risk” to the administration of justice ?

• should consideration be given to the enactment of a statutory power for the courts to prevent interference with the administration of justice by third parties in the proceedings ?

•

•

•

•

to control those who unjustifiably attacked and undermined either the judiciary generally or particular individual judges ?

• if there was such a need, should it be through the current law of contempt by scandalising or was a statutorily-defined regime preferable ?

• if the latter, what should be the applicable tests and what consequences should there be for breaches ?

• should consideration be given to the adoption of different terminology and procedures separating the application to punish for contempt from the enforcement of court orders ?

• should a suitably modified version of the English Practice Direction be adopted as guiding New Zealand practice in cases of contempt in the face of the court ?

• should consideration be given to placing the In-Court Media Coverage Guidelines on a statutory footing and to regulating the use of modern communications devices in court ?

• was a fixed period of imprisonment more appropriate than an should courts be given the power to direct the police to take steps to indeterminate sentence ?

• was the appropriate penalty a enforce court orders if necessary ? was it desirable that the point in maximum of two years, three years time at which a publisher was at risk or longer ? of proceedings for contempt should be Comment on the paper is to be clarified ? should consideration be given in New made by 17 June 2011. Comments Zealand to the introduction of a public or questions can be directed to Professor Smith at Victoria University interest-type defence ? was there a need for special rules – Tony.Smith@vuw.ac.nz

The paper discussed four general criticisms of the law of contempt.

These were the following – • the language of the law of

contempt – the paper said that the language was somewhat misleading, as the commission of an act of criminal contempt did not necessarily involve the element of disdain for the legal process that the language of “contempt” implied. Archaic language was used in describing “scandalising” the court and in the jurisdictional descriptions of superior and inferior courts.

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New Technology Poses Challenges For Law – Judge Harvey Instead, particularly in relation to sentencing, judges were being presented with cases which were advanced to them as having precedent value because of their facts rather than the principles involved.

The doctrine of stare decisis had been predicated on a limited pool of judgments being available to courts.

However, that was no longer the case and lawyers were losing sight of principle because they were looking at large numbers of cases and being attracted to similarities in facts.

Judge Harvey New technology might signal the end of the legal doctrine of precedent, said Auckland District Court Judge, David Harvey. Judge Harvey is an information technology specialist and renowned as New Zealand’s most tech-savvy judge.

He told At The Bar that the doctrine of stare decisis had been developed at a time when information was paper-based and there were clear limits to the number of judgments available. However, the information technology age had turned both those assumptions on their heads and called into question the future of precedent in the courts.

“If we’re going to continue down the track of everything being published online, there is going to be a market for legal researchers to trawl through huge amounts of information to find a real nugget. Alternatively, maybe we’re looking at the twilight of precedent. I don’t know. Maybe we’re going to look into a fact-specific area where cases become of persuasive value only.”

Judge Harvey pointed to the way in which the law of negligence had developed since Donoghue v Stevenson. He said that the evolution of the law had been lengthy and subtle, with different streams developing in New Zealand and in the United Kingdom. However, new technology now meant that lawyers and judges were confronted with huge volumes of cases. Judge Harvey said that the sheer volume of cases meant that facts were becoming more important than principles. He said that the law of precedent directed that the ratio should be looked at. However, this was not what was happening in practice.

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“If you want to maintain the doctrine of precedent, you have got to realise that this is not a print paradigm where there is a limited amount of information.”

presentation used in court, as well as the audio of the witness explaining how the process worked.

Judge Harvey said that the idea of embedding digital content into decisions would remain more the exception than the rule in future. However, simply the possibility of such judgments raised a number of issues for the legal system.

For example, if there was a digital and a hard copy judgment, which one would be considered the authoritative version?

Could it be argued that the hard copy suffered from the absence of the digital content? Other relevant issues included the speed of obsolescence, the impact of changes in technology, presentation of judgments and storage.

“These are all complex issues that have to be thought through.”

He described his digital decision as a first step and said that he would like to see some sort of standardisation applied to the issues involved. He said that he would be giving more thought to these matters as the year progressed, as he was due to speak at a conference in Los Angeles in October. His paper would discuss issues relating to the preparation, distribution, presentation and authoritativeness of digital decisions.

Judge Harvey created legal history in New Zealand in 2010 when he issued this country’s first digital judgment in the case of Department of Internal Affairs v TV Works Ltd, known as the “Pokerstars” case.

Judge Harvey’s judgment included text, website links, images of web pages and video clips recorded on a CD. He said that a digital judgment had previously been issued in a case in the United States which had involved an explanation of an extremely complicated process. The American judge had accordingly embedded into the judgment the animated Power Point

Judge Harvey said that current developments relating to the law and technology in the United Kingdom were “very, very interesting.” Widespread public debate has been sparked there by the granting of “super-injunctions” to celebrities seeking to keep details of their personal lives private. Manchester United star, Ryan Giggs, was granted a court order concealing his identity as he sought to stop a newspaper publishing an account of an alleged affair he had had with a reality tv star. However, thousands of Twitter users subsequently revealed Giggs’ name, the Scottish Sunday Herald published his face on its front page and an MP named Giggs under parliamentary privilege.

The Independent newspaper calculated that 333 gagging orders had been issued in the United Kingdom in the past five years, protecting the identities of celebrities, children and others.

The newspaper said that 264 orders

had been made granting anonymity to children or vulnerable adults. It calculated that a further 69 orders had been issued preventing publication of the names of prominent people, including 28 men accused of having affairs and nine criminals.

However, a report by a committee chaired by Master of the Rolls, Lord Neuberger of Abbotsbury, and released on 20 May 2011 rejected claims that super-injunctions were being applied for and granted far too readily. The paper, titled Super-Injunctions, Anonymised Injunctions and Open Justice, said that the concerns which had existed when the committee was appointed in 2010 had now been addressed. The committee said that, since January 2010, only two super-injunctions had been granted.

One had been set aside on appeal and the second had been in force for seven days. However, the report said that there had been an increase in the number of cases which were anonymised and confusion had arisen when many cases with privacy or anonymity aspects had wrongly been described as involving super-injunctions.

The committee recommended that Practice Guidance should be issued to set out the procedures to be followed when applying for interim injunctions to protect information said to be private or confidential pending trial. The report said that this procedure would enable the media to be informed about applications in advance, as Parliament had envisaged when it passed section 12 of the Human Rights Act 1988. The committee said that such injunctions should in future be referred to as “interim non-disclosure orders.”

Judge Harvey said that some very real challenges were now being mounted by the media to the issue of non-publication orders in the United Kingdom.

“It’s absolutely fascinating because it so adequately demonstrates the challenges we have.”

Judge Harvey said that the timing of the release of the report at the same time as the Giggs controversy was receiving widespread media and public attention was quite unprecedented. He said that he had been astonished by the Lord Chief Justice’s statement, made at the press conference following the release of the report, that technology was “out of control.”

“Technology just sits there. It’s not technology that is the challenge. It’s the way people use it,” said Judge Harvey.

He said that a similar point could be

made in relation to the prosecution of blogger Cameron Slater in the New Zealand context.

Judge Harvey said that the problem with media such as Twitter was that information went viral and it was almost impossible to shut it down. It was also difficult to identify who was spreading confidential information as it was retweeted by so many other people.

rules…we have got to understand not only the way technology works, but the way people use it. Only then can you start to make judgments about whether that behaviour is something that warrants the intervention of the law.”

Judge Harvey said that suggesting that technology was out of control, the internet should be shut down or bloggers should be gagged would not work. Rather, it would worsen the problem.

Judge Harvey said that he was following with interest the rise of law blogs – knows as “blawgs.” He said they were a difficult area for lawyers to become involved in because of the ethical constraints governing the profession. However, some United Kingdom lawyers and barristers’ chambers were presenting extremely high quality material in blawgs.

He pointed to UK Human Rights Blog – www.ukhumanrightsblog. com – as an example. The blog is written by members of 1 Crown Office Row barristers’ chambers Adam Wagner, Rosalind English and Angus McCullough QC. Judge Harvey said that the quality of material on that blog and others in the United Kingdom was of law journal standard. The question accordingly being asked by some legal academics was when a law blog would be cited in court as authority for a proposition.

“It’s not a question of whether or not the law has been broken – the answer to that is easy - but a question of whether or not the law can be enforced.”

Judge Harvey said that Professor Tony Smith’s report, Reforming the New Zealand Law of Contempt of Court, was underpinned by the fact that the rules had been devised for monolithic communication systems such as newspapers, television and radio. Such entities had centralised systems, communicated to audiences of many, and were easily identifiable and easily locatable. However, in the new “digital ecosystem,” the traditional media structure was not present. Information could be published on a blog and material could be placed on YouTube at negligible cost.

“We’ve got to recognise that our current rules were designed for a particular model or paradigm and now we are operating in an entirely different paradigm. Before we start making

‘The quality of some material on law blogs might mean that some consideration may need to be given to this, particularly if counsel are dealing with a novel area of law that is being blogged about overseas.”

Judge Harvey said that barristers could consider writing blogs as a means of establishing their credentials in specific areas of law with instructing solicitors. He said that Twitter could be a remarkable tool, pointing to the tweets of Stanford University’s Professor Larry Lessig which he said provided a continuous thread of information about copyright law and the concepts underlying the Creative Commons. He said that Twitter had major advantages as people could tweet legal articles and then discuss them. Social media accordingly offered many opportunities for lawyers - a point made at an Auckland seminar earlier this year by American lawyer, Adrian Dayton.

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NZ Would Follow UK Abolition of Expert Witness Immunity - QC

James Farmer QC

The New Zealand Supreme Court would follow the United Kingdom Supreme Court’s decision to abolish the immunity from suit of expert witnesses and it would be a waste of time and money even to litigate the point, said barrister James Farmer QC. The Supreme Court in the United Kingdom on 30 March 2011 released its decision in the case of Jones v Kaney, sweeping away the long-standing immunity of those providing expert evidence in court.

Dr Farmer said that, following the decision of the House of Lords in 2002 in Hall v Symons to abolish the immunity of barristers from suit in respect of negligent conduct in court or in conduct closely related to trials, it was no real surprise that the United Kingdom had now taken the same step in relation to expert witnesses. He observed that the 2011 decision had been reached by a majority of five to two, with Lord Hope and Lady Hale taking the view that such decisions should be left to Parliament after proper empirical or other investigation.

“The soundness of that approach can be seen from the judgment of Lord Phillips who expressed the view that since the immunity of barristers was abolished there was, to his perception, no diminution of the advocate’s duty to the court and no flood of claims from disappointed litigants. Neither proposition was established by empirical evidence and, indeed, the case was brought by way of strike out.”

Dr Farmer said that it might be problematic to establish whether or not barristers had since Hall – and since the corresponding New Zealand case of Lai v Chamberlains – been more reluctant to accede to judicial requests to limit causes of action, argument, evidence and cross-examination to the essential.

However, if judicial policy was to be changed in such a dramatic way, then surely there was a case for ensuring that the change was based on empirical investigation and not on subjective impression. He said that, if the processes of the courts did not allow for such investigation, then the case for extra-judicial investigation and parliamentary decision – perhaps after a Law Commission inquiry – must surely be that much stronger.

In relation to future developments in this area of law, Dr Farmer said that, although the majority in Jones had said that it did not intend to affect the absolute privilege from suits in defamation, the logic of the new judicial policy would not see the preservation of that privilege once it was squarely attacked in a future case.

“Of course the same judicial policy would also not protect judges themselves from being sued for either negligence or for defamatory comment either in court or in a judgment. This may, however, be where logic gives way to expedience and pragmatism.”

The case of Jones v Kaney [2011] UKSC 13 involved personal injury proceedings following a road accident. The narrow issue on appeal was whether or not the act of preparing a joint witness statement was one in respect of which an expert witness enjoyed immunity from suit. However, submissions raised the broader

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issue of whether or not public policy justified conferring on expert witnesses any immunity from liability in negligence in relation to the performance of their duties in that capacity.

Supreme Court President, Lord Phillips, observed that the immunity of expert witnesses dated back over 400 years. It had accordingly been established long before the development of the modern law of negligence and, in particular, the recognition of the possibility of liability for negligent misstatement. Lord Phillips said that the continuous theme running through cases supporting general immunity was the chilling effect that the risk of claims arising out of conduct in relation to legal proceedings would have. It was argued that it would make witnesses reluctant to testify, would hamper them from testifying freely and frankly and would subject them to unjustified and vexatious claims by disgruntled litigants. Lord Phillips went on to review cases relating specifically to the immunity of expert witnesses, as well as to discuss the position of barristers.

He said that it was difficult to draw the line that confined the immunity of expert witnesses, describing it as “fuzzy.” However, the effect of the immunity was to preclude the client from suing for breach of duty not only in relation to views expressed in court, but also where an expert’s negligence was alleged to have adversely affected a decision as to settlement. Lord Phillips said that the issue was whether or not such immunity was necessary in order to ensure that an expert’s objectivity was not affected in the minority of cases that did result in court proceedings.

Lord Phillips said that he believed that there was a lesson to be learnt from the position of barristers. It had always been believed that it was necessary for barristers to be immune from suit so that they were not inhibited from performing their duty to the court. However, removal of their immunity had not resulted in any diminution of the advocate’s readiness to perform that duty.

Lord Phillips said that it would be “quite wrong” to perpetuate the immunity of expert witnesses “out of mere conjecture that they will be reluctant to perform their duty to the court if they are not immune from suit for breach of duty.”

Lord Phillips dismissed suggestions that diligent expert witnesses would be harassed by vexatious claims for breach of duty and that there would be a risk of a multiplicity of suits. He said that he believed that his views held good in both civil and criminal cases and that he had concluded that no justification had been shown for continuing to hold expert witnesses immune from suit. Lord Brown agreed, stating that the most likely broad consequence of denying expert witnesses immunity would be “a sharpened awareness of the risks of pitching their initial views of the merits of their client’s case too high or too inflexibly lest these views come to expose and embarrass them at a later date.”

2011 NZBA Conference Theme is “The Modern Barrister” The New Zealand Bar Association’s 2011 conference will be held in Auckland on 2 September.

The conference theme is “The Modern Barrister.”

Conference convenor and NZBA council member, Kate Kate Davenport Davenport, said that this year’s conference aimed to present a snapshot of what barristerial practice was like at present and how it would evolve over the next decade.

A representative of the Corporate Lawyers’ Association of New Zealand and a practitioner would be the other speakers during the first conference session. The practitioner would talk about what clients wanted from barristers and the CLANZ member would discuss corporate clients.

Ms Davenport said that the second conference session would be an interactive one, using materials from the American Bar Association’s annual Chicago Tech Show. The ABA has almost 400,000 members and is the largest voluntary professional membership organisation in the world.

Its TechShow – which is held separately from the ABA’s annual meeting - is attended by around 1500 lawyers each year. The keynote speech at the 2011 TechShow was delivered by Professor Larry Lessig, whose address was titled “Code is Law: Does Anyone Get This She said that the conference would be Yet ?” Professor Lessig discussed opened by Attorney-General Christopher problems relating to regulation of the Finlayson. The first session will be addressed by Auckland District Court Judge digital world using copyright law. One commentator noted that a feature of the and technology expert, David Harvey, who 2011 TechShow had been that lawyers last year delivered New Zealand’s first traded Twitter handles rather than digital judgment. The landmark case of exchanging business cards as they had Department of Internal Affairs v TV Works done in the past. Approximately oneLtd included text, website links, images of third of small firm lawyers in the United web pages and videoclips recorded on a States use social media and lawyers CD. Ms Davenport said that Judge Harvey have been regarded as reluctant to would explain how technology could be used in court processes, including counsel’s embrace such innovations. However, many of those attending this year’s use of technology and better ways of using TechShow live-tweeted panel discussions video and the internet and of accessing Other sessions at TechShow dealt with judgments. The emphasis would be on a e-discovery, Macintosh and integrating move away from reliance on paper and the iPads into legal practice. Renowned written word.

features of TechShow are its “60 Tips in 60 Minutes” session and the final session “60 Sites in 60 Minutes” Ms Davenport said that the ABA had given the NZBA access to a number of TechShow papers, focusing on how technology could be used to improve lawyers’ practices. Topics to be covered would include cloud computing, how to use Microsoft Outlook, the use of Word and how lawyers could make the most of Windows 7.

Another highlight of the conference would be a session on social media, said Ms Davenport. This would include a discussion of how lawyers could use Twitter and Facebook, as well as consideration of whether they should be using them. The conference would also consider e-discovery and the lessons which lawyers could learn from the Christchurch earthquakes.

Ms Davenport said that the conference dinner on Friday night would be addressed by Justice Mark Cooper.

On Saturday, Professor Raymond would present a session on advocacy for those who wished to attend. Ms Davenport said that she hoped that conference attendees would take away with them exciting tips for better use of technology as well as thoughts about the future shape of the Bar.

Dissenting, Lord Hope said that a secure, principled basis for removing the immunity was lacking. He stated that the lack of a clear dividing line between what was to be affected by the removal and what was not, the uncertainty that would be caused, and the lack of reliable evidence as to what impacts would result, suggested that the wiser course would be to leave matters as they stood. If there was to be change, it would be better dealt with by Parliament following a Law Commission report. Lady Hale agreed with that view, stating that it was irresponsible to make such a change on an experimental basis and, if there was to be reform, it should be made by Parliament rather than by the court.

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Legal Aid Changes Have Serious Implications – CBA President

By Criminal Bar Association of New Zealand Inc, President, Adriana Pinnock.

Of the 11,200 practising lawyers only 1,464 are providers of criminal legal aid. That is an indication of the talent unavailable to legal aid recipients.

The recent changes will further reduce that number. That reduction has implications not just Adriana Pinnock for the independent Criminal Bar, but also for the public. More changes are expected in September.

Before that, all providers are required to re-apply for approval to the Ministry of Justice as successor to Legal Services Agency. The Criminal Bar expects the ministry to choose to contract with fewer providers as more cases are channelled to the Public Defence Service.

on the public purse, deterred this Minister from effecting drastic and irreversible changes.

In a few years’ time the Criminal Bar will be unrecognisable. It will no doubt be significantly smaller, perhaps so much so that even private clients will find it difficult to find available experienced counsel. Reliance is placed largely on the PDS to train the next generation of criminal lawyers. Whether it will be able to offer adequate training to a sufficient number of lawyers to meet future need, will depend on its ability not only to recruit but also to retain competent and experienced lawyers.

Many providers will not have their contracts renewed. Those who remain will have their workload significantly reduced – possibly to unsustainable levels. Hourly rates will not increase and the ministry will require savings to be made. The early disposal of cases and the negotiation of a reduced fee are likely to be regarded as indicators of success.

The mechanics for bringing about all of the many changes signalled recently by the Minister have yet to be worked out.

Their absence has not slowed the pace of change. Nor has the impossibility of predicting the extent of future demands

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Accused assigned a lawyer not of their choosing and in whom they have no confidence, or those who do not feel comfortable being defended by a state employee of the very ministry that makes the funding decisions and that will both try and sentence them, will be under pressure to find the funds to engage counsel privately.

When introducing the recent changes the Minister asserted that his aim was to ensure access to justice while making cost savings without any deterioration in quality. Commendable though they no doubt are, those aims may also prove to be entirely unrealistic.

On current announcements the PDS is to handle 50 per cent of all cases, but that share is subject to capacity and, of course, also to the whim of the Gvernment of the day. Just how that culling process will be effected has yet to be determined.

All we know so far is that a panel chaired by a court manager will be established, which will include one lawyer.

Approved providers still willing to undertake legal aid work, will be faced with having to negotiate fixed prices for complex cases. In criminal cases much depends, of course, on how the investigation develops even after charges are laid and also on the volume of disclosure – matters that are impossible for the defence to assess at an early stage.

Importantly, the inability to choose one’s own counsel has deprived accused relying on legal aid of the continuity they enjoyed before the recent changes. Continuity can be enormously useful - particularly in sentencing, for instance, where the historic knowledge of previous counsel is a distinct advantage for the accused, defence counsel and also for the court.

The threshold for qualifying for legal aid has been reduced after having been raised just a few years ago.

Accused who earn over $ 22,000 per annum or a couple with two dependents on a joint income of $ 51,000 or more, no longer qualify for legal aid for the “less serious” cases. Cases have traditionally been categorised for seriousness according to the maximum penalty.

For a caregiver or teacher accused of assault on a child, for instance, the maximum penalty is no indication at all of the enormous impact that a conviction can have on his or her career and life. People supporting themselves on $ 22,000 per year will simply not be able to afford lawyers and will be faced with the prospect of representing themselves.

The wide-ranging and serious longterm implications of the changes brought about swiftly and brutally do not appear to have been fully considered. They appear to have been motivated by the dual goal of dealing with that small number of errant lawyers referred to by Dame Margaret Bazley in her report and by fiscal imperatives. It is a shame that practitioners at the frontline were not consulted about the causes of the so-called blow-out in the cost of legal aid because they would have been in a position to better inform the Minister of the multiple and entirely predictable causes of that increase.

Whether nationalisation of the criminal defence will serve the public well remains to be seen. One thing is certain – it will not cost the country less. What the Government has not factored into the equation is that in the past law firms and individual lawyers have always subsidised legal aid. It always was and still is uneconomic for the majority of practitioners.

Alternative Business Structures Implemented in United Kingdom Sweeping changes to the way in which lawyers practise will take effect in England and Wales on 6 October 2011. On that date, the framework for licensing Alternative Business Structures will be implemented and Outcomes-Focused Regulation will be introduced. Solicitors Regulation Authority chair, Charles Plant, has described 6 October as an historic day for legal services in England and Wales and one which will have a major effect on every firm, on every lawyer and on the legal services market as a whole.

Law firm Irwin Mitchell LLP announced in April that it intended to restructure its partnership as an ABS and then seek external capital for expansion.

The firm has appointed Espirito Santo Investment Bank as its financial adviser to review its options for capital raising. The firm said that all alternatives were currently being considered, with the preferred method and timetable for seeking external funding yet to be finalised.

In preparation for becoming an ABA, Irwin Mitchell is restructuring its operations, adopting a two-tier structure which will see the creation of a new corporate vehicle. Irwin Mitchell LLP will remain the main operating business, with the new holding company becoming admitted with a view to it becoming the controlling member of Irwin Mitchell LLP. Irwin Mitchell national managing partner, John Pickering, said that the Legal Services Act created exciting growth opportunities for strong, well-financed legal services business to accelerate ABS mean that, subject to being licensed their growth plans. and employing at least one qualified lawyer, any business will be able to offer “Irwin Mitchell intends to be at the a full range of legal services. Ownership forefront of these changes and we have therefore taken the decision to of legal services providers – which is seek external investment to further currently restricted to lawyers – will be our ambitious plans for the business. open to anyone who is deemed to be Conversion to an ABS will broaden fit or proper. However, the law firm part our access to capital and enhance our of the business will be required to be separated from the rest of the business, funding flexibility as we execute out strategic growth plan, while ensuring so that it is plain what is and is not that we can continue to provide the covered by legal regulation. Duties to very highest standards of service to shareholders will be subordinate to the our clients.” new firms’ responsibilities to adhere to their regulatory duties, including their In relation to Outcomes-Focused responsibilities to the court and to their Regulation, Solicitors Regulation clients.

Authority executive director of supervision, risk and standards, The Solicitors Regulation Authority has Samantha Barrass, said in a applied to become a licensing authority December 2010 speech that OFR was for ABS and on 3 May 2011 issued a designed to create a more robust and consultation paper on fee structures for ABS. The document said that the starting efficient regulatory system. Instead of focusing on the failures that had assumptions for development of a fee occurred in firms, the emphasis would structure for ABS were that the ongoing be on what the authority required firms cost of regulation of an ABS would be broadly the same as the cost of regulation to achieve by way of outcomes. Ms Barrass said that a new handbook had of an equivalent traditional firm, and been prepared setting out complete that the same general principles could regulatory requirements, while a underline the fee structure for both. The paper also proposed that contributions by revised Code of Conduct set out in ABS firms to a single Compensation Fund 12 chapters a series of mandatory outcomes describing what firms and should be calculated on the same basis individual were expected to achieve in as for traditional firms.

The Legal Services Act 2007 set out the core regulatory framework for the new regime and provided for the creation of the Legal Services Board as the oversight regulator for legal services in England and Wales. The new statutory regime provided for by the legislation became fully active on 1 January 2010. In February, the board announced that the first ABS would up and running in October 2011. The board set out a timetable for companies to apply for licences to become ABS from the northern summer of 2011.

order to comply with the principles in the context of each individual chapter.

The changes will also impact on barristers. The Bar Standards Board has decided to regulate advocacy-focused ABS, Legal Disciplinary Practices and Barrister Only Entities. The decision was the culmination of a high-level consultation which sought to explore the developments brought about by the Legal Services Act. The board decided in principle that Bar Standards Boardregulated entities and self-employed barristers would be permitted to apply to conduct litigation should they wish to do so. Bar Standards Board-regulated entities would be permitted to provide the same services as those currently provided by the self-employed Bar. The board also decided that all owners of Bar Standards Board-regulated entities would also have to be managers.

There would be a 25 per cent limit on non-lawyer owners’ managers of ABS. A majority of the owners/ managers of ABS regulated by the Bar Standards Board would be required to be barristers or other advocates with higher rights of audience. The board said that the entities and self-employed barristers would not be permitted to hold client money. Barristers would be permitted to practise as managers or employees of ABS regulated by other approved regulators, and would be permitted to have ownership interests in ABS subject to the development of rules and guidance on managing any resulting conflicts of interest.

A survey conducted for the Bar Standards Board in 2010 found that more than a third of barristers were likely to join a new business structure in the next five years.

The YouGov survey of 1913 barristers and 141 clerks indicated interest in barristers having the right to conduct litigation. 40 per cent of respondents were interested in one or more of the proposed new structures if they had the ability to conduct litigation, compared to 35 per cent without it. Barrister-only entities were the most popular at 23 per cent, followed by ABS on 21 per cent and legal disciplinary practices on 17 per cent. Barristers in large chambers, or who had been at the bar for longer periods, were more likely to be interested in working in new structures, as were those practising in the fields of employment and criminal law.

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AMINZ National Conference: Taking Charge of the Future

Bench and Bar Dinner, Wellington Club, 19 May 2011

By Deborah Hart, Executive Director, Arbitrators’ and Mediators’ Institute of New Zealand Inc.

The Governor-General, His Excellency Sir Anand Satyanand, was the guest speaker at the Bench and Bar dinner held in Wellington.

Four Australian guests were present – Michael Stewart SC, the President of the Australian Bar Association; Dan O’Connor, Executive Director of the Queensland Bar Association and the Secretary of the Australian Bar Association; Philip Walker, the President of the ACT Bar Association; and Philip Selth OAM, the Executive Director of the New South Wales Bar Association.

Alternative dispute resolution, or ADR, refers to all the processes used as alternatives to litigation, particularly, but not exclusively, mediation and arbitration. These processes have enjoyed a rising popularity, nationally and internationally. The costeffectiveness of ADR has meant that current economic pressures have given ADR increased momentum. But it is not the only reason why ADR is so often the choice for disputants. The choice of determiner or Deborah Hart mediator is often key, as is the confidentiality of the processes. Much has been said about delays in the court system. The speed with which a dispute can be resolved using ADR often contrasts favourably with the time taken for a court hearing date.

Plus parties often have control over the process and, with consensual processes, control over the outcome. But for many disputants, such as those in family disputes who use mediation, the ability to maintain relationships is a fundamental and appreciated benefit.

New Zealand has been enthusiastically using ADR for many years. Mediation is mandated in nearly 50 statutes and accordingly is a practice mainstay for many barristers and lawyers. Construction adjudication is provided by the Construction Contracts Act and has been widely accepted as a successful method of resolving construction payment claims. New Zealand, of course, has an Arbitration Act. The Family Court last year introduced the Early Intervention Programme, mandating mediation of family disputes involving the care of children.

AMINZ believes ADR is certainly not a replacement for the Courts, but has its place within a first-class civil justice

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system. However, there is on-going debate about the place of ADR in our civil justice system, the limits for ADR and how it is best used.

The Arbitrators’ and Mediators’ Institute of New Zealand, (AMINZ), each year holds a conference to hone in on developments in dispute resolution and to discuss current issues. It is the only national dispute resolution conference held annually and this year will be held in Auckland between 4 and 6 August. The conference will tackle some thorny issues. The Chief High Court Judge, Justice Helen Winkelmann, will present on the role of ADR in the civil justice system. Bob Hawkes will lead a workshop on expert witnessing and expert determination and how, practically, they can be done better. Another workshop will deal with the future of adjudication, particularly in light of the changes to construction adjudication signalled by the Government.

Internationally-renowned mediator and commentator, Robert Benjamin, will engage delegates as to how decisionmaking is predictably irrational and what this means for practitioners working with their clients. The Director of the International Centre for Dispute Resolution - Singapore, Michael Lee, will present the latest research carried out by the American Arbitration Association on negotiation.

This research videoed 50 negotiators world-wide and, not surprisingly perhaps, found that cross-culturally all negotiators lie. Auckland Mayor, Len Brown, will launch the conference and speak about how the city deals with its disputes. Justice Joe Williams will be the after-dinner speaker at the AMINZ Annual Dinner to be held at the Royal New Zealand Yacht Squadron.

The comprehensive conference programme includes concurrent streams for determinative and consensual processes and many networking opportunities. As a supporter of the conference, New Zealand Bar Association members are invited to attend the conference and register at AMINZ member rates.

For more information, including the conference programme and to register, see - www.aminz.org.nz. Click on “conference”.

His Excellency the Rt Hon Sir Anand Satyanand, Judge Jan Kelly

Peter McKenzie QC, Justice Marian Frater, Gary Turkington

Christine Grice, Alistair Sweeney

Mary Scholtens QC, Lauren Becroft

Deb Hollings QC, Toby Futter, Simon Shamy, Suzanne Robertson

Jonathan Temm, Stuart Pilkington, Peter Churchman

Helen Aikman QC, Barbara Hunt, Judge Sarah Reeves, Justice Susan Glazebrook, Justice Denis Clifford

Philip Selth, Melissa Perkin, Miriam Dean QC

Jack Wass, Jonathan Orpin

Alistair Sweeney, Miriam Dean QC, Tony Fletcher

William Brewer, Victoria Brewer, Justice Tim Brewer

Richard Laurenson, Judge Charles Blackie, Toby Futter

Sir John McGrath, Nicolette Levy

Justice Arnold, Gerard Curry

Karen Clark QC, Philip Walker

Honorable Christopher Finlayson, His Excellency the Rt Hon Sir Anand Satyanand

Alistair Sweeney, Tony Fletcher

Melissa Perkin, Toby Futter

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United Kingdom Plans “Centre of Legal Excellence” New Members of the New Zealand Bar Association The New Zealand Bar Association Association: Ms Catherine Andersen Ms Jane Bawden Ms Lauren Beecroft Mr David Bleier Ms Jennifer Campion Mr Joseph Cederwall Ms Rochelle Crossman Dr Gordon Cruden Ms Kellie Dawson Justice Rebecca Ellis Ms Erin James

welcomes the following new members to the Independent Bar and/ or the Bar Tauranga Auckland Wellington Wellington Auckland Wellington Dunedin Palmerston North Auckland Auckland Auckland

Mrs Alison King Mr Peter Lowndes Mr Jai Moss Miss Jessica Miles Mr Daniel Pannett Mr Richard Raymond Mr Morgan Slyfield Mr Matthew Smith Mr Ross Sutherland Mrs Tara Vanderkolk Mr Fergus Whyte

Christchurch Auckland Christchurch Auckland Auckland Christchurch Wellington Wellington Auckland Palmerston North Auckland

Joint AWLA/NZBA Seminar for Women Lawyers

Mark your diaries for 17 August 2011! The Auckland Women Lawyers Association and the New Zealand Bar Association are jointly hosting a half-day seminar titled “Walking the Talk”. An impressive line-up of speakers will present on a number of topics aimed at practical ways in which women lawyers can make a difference for themselves and for others around them.

Yvonne McLean from Strategic Direction Consulting Ltd will present on the “Imposter Syndrome” and how issues of confidence can be a block to women taking that next step. Experienced practitioners will talk about how they have managed to overcome this hurdle in their careers and to project confidence on a daily basis.

Barrister and NZBA President Miriam Dean, CNZM, QC, and Bell Gully partner, Jenny Cooper, will co-host a

session on “Presenting Yourself” and will cover topics such as how to walk into a room, shake hands, and project the right image to colleagues and clients. “Bowling the roadblocks” is a session which will deal with many of the specific issues which women must weigh in the balance when contemplating their future career paths.

Genesis Energy general legal counsel, Maureen Shaddick, will talk about coming back into the workforce after a period away. Maria Clarke, of Maria Clarke lawyers, will talk about her experiences in breaking into areas of law which are traditionally regarded as being male-dominated.

Another session will deal specifically with finding that ephemeral life/work balance.

A lively panel discussion will round out the day with women lawyers from a variety of legal practice areas talking about how they have managed the roadblocks in their career, and passing on practical tips to assist women to take that next step.This seminar is a must for women lawyers contemplating a career move or needing some inspiration on how to break through to that next stage. It will appeal to lawyers at all ages and stages from across the spectrum of practice areas.

An action plan aimed at encouraging overseas commercial interests to make use of United Kingdom legal services was unveiled in May by United Kingdom Justice Secretary, Kenneth Clarke, and Minister for Trade and Investment, Lord Green. The strategy details how the United Kingdom can promote its commercial arbitration, mediation and court services to a global audience. The action plan is a key component of the United Kingdom Government’s Plan for Growth.

The United Kingdom’s commercial dispute resolution and legal services at present generate £23 billion per annum, or 1.8 per cent of the United Kingdom’s gross domestic product in 2009. The plan sets out a series of government commitments, including creating an online promotional toolkit for trade and investment advisers, and ensuring that professional representatives attend official visits where appropriate.

Mr Clarke said that, as Britain’s economy emerged from a difficult period, it was vitally important that the country built on its strengths to support the recovery.

“There are few areas where Britain is stronger than in the law. Whether it’s in the provision of legal services,

the use of our courts for the resolution of disputes, or the application of English law for contracting, the United Kingdom is truly a global centre of excellence. People turn to us because they know they will find world-class, highlyspecialised practitioners and expert judges in the specialist courts. They understand that a decision from a court in the United Kingdom carries a global guarantee of impartiality, integrity and enforceability.”

The number of disputes resolved through arbitration and mediation in the United Kingdom reached 34,541 in 2009, up from 19,384 in 2007. The Rolls building, scheduled to open later in the year, will for the first time incorporate on one site the work carried out by the Commercial Court, the Technology and Construction Court and the Chancery Division. More international and commercial arbitrations take place in London under English law than in any other city in the world, with 90 per cent of commercial cases handled by London law firms involving an international party.

Bar Council chairman, Peter Lodder QC, expressed strong support for the plan and said that the council was delighted to be working with the Government to develop the role which the legal sector could play in securing the United Kingdom’s long-term economic recovery.

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NZLS Paper Recommends Abolition of Intervention Rule Submissions are open until 2 September 2011 on the future of the intervention rule. The New Zealand Law Society began a review of the rule in 2010 by conducting preliminary consultation with lawyers.

NZLS executive director, Christine Grice, said that this consultation had demonstrated that lawyers were divided on the issue. Broader consultation was now taking place with the Chief Justice on behalf of the judiciary, the Consumers’ Institute, the Ministry of Justice, the New Zealand Bar Association, the New Zealand Institute of Legal Executives and other organisations.

intervention rule should be revoked and replaced by a new Rule 14.4 which would require barristers accepting direct instructions from lay clients to inform the client of any disadvantages of instructing a barrister directly. Barristers sole would be able to decline to accept direct instructions from lay clients. They would not be able to accept direct instructions if it would be in the client’s interests to require the intervention of an instructing solicitor, or if there was a risk that the barrister might be required to act as a witness in the matter.

The intervention rule provides that barristers sole must accept instructions only from solicitors and must not accept instructions directly from lay clients, except in very limited circumstances. Under the current Lawyers and Conveyancers Act (Lawyers: Rules of Conduct and Client Care) Rules 2008 the Law Society may, in consultation with the Ministry of Justice and the New Zealand Bar Association, grant a specific or general dispensation authorising a barrister sole to accept direct instructions.

The public interest and the interests of consumers must be taken into account in making such decisions.

However, there have been very few applications under the provision.

The New Zealand Law Society in May 2011 released a series of documents relating to the review of the intervention rule, including the following – • a question and answer sheet • a preliminary submission by the NZBA • a preliminary submission by the Family Law Section • a paper proposing replacement of the intervention rule with an “opt in” rule, and • an opinion from John Land of Kensington Swan advising that the intervention rule was anti-competitive.

The paper Opting in to the intervention rule – the case for clients and lawyers to have the right to choose was prepared by NZLS advisers Ian Haynes and Alan Ritchie. The document recommended that the

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subject to some exceptions and to further development of the practising requirements for barristers. The submission said that the benefits of the intervention rule were clear and it was fundamental to the existence of the independent bar. By contrast, the Family Law Section’s preliminary submission argued that the rule should be abolished, except that only solicitors should be able to deal with clients’ money and solicitors should still be able to instruct barristers but the solicitor should determine the nature of the relationship between the parties.

The Family Law Section said that 134 people had responded to a members’ survey, with 131 people overwhelmingly supporting some form of amendment to the rule.

Mr Land’s opinion, dated 16 November 2010, said that he had formed the view that there was a reasonably strong argument that the intervention rule would be regarded as breaching section 27 of the Commerce Act 1986. He said that this was because there was a real chance that removing the rule would increase competition in a way that was real or of substance. Accordingly, the existence of the rule could be regarded as having the likely effect of substantially lessening competition in a market in terms of section 27. He therefore considered that the rule was anti-competitive.

Mr Haynes and Mr Ritchie said that the main reasons for the proposal were that the intervention rule restricted choice and was arguably anti-competitive. The best interests of clients did not require retention of the rule and keeping it would be inconsistent with reforms in other common law jurisdictions.

The NZBA’s preliminary submission, dated 8 June 2010, said that the association’s position was that the intervention rule should be retained,

The opinion said that removing the rule would introduce a new dimension of competition in the provision of advocacy services. Solicitors and barristers sole would need to compete, not just on their legal expertise, but also on the question of the appropriate mix of personnel for a case. Mr Land concluded that, overall, the intervention rule clearly prevented or hindered – and therefore lessened – competition.

It did so in respect both of the cost of the services offered and of the nonprice dimensions. Dr James Farmer QC has produced a paper asserting the contrary view.His paper can be viewed on the NZBA website.

Submissions should be forwarded by 2 September to Christine Grice, Executive Director, New Zealand Law Society, P O Box 5041, Wellington 6145.

NZBA Submission On Draft Discovery Rules Urges More Changes A number of important areas still required attention if new discovery rules were to achieve their intended purposes, the New Zealand Bar Association said in its submission to the Rules Committee on the High Court Amendment Rules (Discovery).

The association applauded the committee for the work it had done on the draft rules but said that additional amendments were required to make the regime clear and understandable and to allow legal practitioners and parties to undertake discovery in a way which met the objectives of the proposed new rules, while at the same time ensuring that unsatisfactory practices could be identified and dealt with.

The association said that its initial submission on the committee’s first consultation paper of 11 September 2009 had emphasised the importance of discovery, referring to it as the single most significant pre-trial process and critical to the proper and just disposition of civil cases. The association’s initial submission supported a distinction between larger, more complex cases and the ordinary, run of the mill, civil cases in which the current discovery rules were generally thought to operate satisfactorily. The association supported tailored discovery in the larger, more complex cases.

“The proposed draft rules address this distinction and to that extent they have the association’s full support.

However, this principle should be extended to allow the parties and courts to better tailor solutions to particular circumstances in all cases.”

The association said that its initial submission had also noted an unwillingness among lawyers to depart from the “safe” default approach. It observed that practitioners were now exposed to civil suit at the hands of dissatisfied clients and this might be a factor in this conservative approach.

“Particular care needs to be taken to ensure that the draft rules, while designed to streamline and simplify the discovery process, do not lead to their own difficulties. This includes the risk of “over discovery” to avoid criticism or, even worse, parties and their legal representatives deliberately gaming or manipulating the rules or adopting “warehousing” or other nonproductive practices to wear down an opponent.”

The submission noted that the draft rules did not contain a rule recording a party’s positive obligation to conduct a reasonable search for documents falling within a discovery order. The association said that it considered that this obligation should be expressly stated, in terms that applied to all documents, both printed and electronic. The submission said that a good example was the “Duty of Search” set out in Rule 31.7 of the United Kingdom’s Civil Procedure Rules, Part 31.

Three reasons were given for urging that the obligation be expressly stated. These were that • the growing prevalence of electronic documents increased the importance of parties carrying out adequate searches to ensure that directly relevant documents were not overlooked • the obligation to undertake a “reasonable” search was consistent with the proportionality principles emphasised in draft Rule 8.17. A reasonable search would not extend exhaustively to every possible source of electronic documents.

• Paragraph 1 of the discovery checklist in Schedule 9 Part A, “Assessing proportionality,” appeared to assume an obligation to conduct a reasonable search, but without expressly stating it.

The submission suggested that draft Rule 8.27(c ) should be expanded to

state expressly that parties must set out the extent of the search that had been made to locate documents required to be discovered. If a party had not searched for a category, class or particular source of documents, on the grounds that to do so would be disproportionate, those limits on the search should be identified and explained with sufficient particularity.

In relation to inaccessible documents, the association observed that electronic discovery could often be an efficient and economic exercise. However, it could also result in huge inefficiencies and costs, particularly when the scope of discovery was extended to inaccessible documents – those not stored in a readily useable or retrievable form. The association said that experience both in New Zealand overseas suggested that it was not uncommon for parties to seek discovery of inaccessible data.

Experience also suggested that, while an occasional smoking gun might emerge, more often the level of responsive documents was wholly disproportionate to the cost and time involved.

The submission said that the association’s position was that the normal or default rule should be that a reasonable search did not extend to inaccessible data. That principle should be expressly stated in the draft rules. The disclosing party should not normally be required to attempt to search back-up media, to retrieve deleted files or to reestablish obsolete systems. The term “inaccessible data” would need to be defined.

The NZBA said that the need to preserve relevant documents had particular importance for

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electronically-stored information. The dynamic natures of electronic documents meant that they could inadvertently be altered, deleted or destroyed far more easily than was the case with paper documents. A new rule should accordingly be added to subpart 3 of the draft rules, expressly setting out an obligation to take reasonable steps to preserve relevant documents from the time when litigation was reasonably contemplated. Consideration should also be given to including in paragraph 1.4 of Schedule 9 Part A a checklist of the practical steps which a party might need to take to preserve electronic documents.

In relation to cost-shifting, the submission said that it was expressly provided for only in limited circumstances under the High Court Rules. The association said that it favoured incorporating into the draft rules the eight Zubulake/Wiginton factors when conducting any cost-shifting analysis. The submission

said that the Court of Appeal had added a ninth factor in the case of Commerce Commission v Telecom Corporation of New Zealand Ltd. Together, the nine principles provided a practical and useful set of guidelines and the draft rules would benefit from their inclusion.

The submission said that default in making proper discovery might arise from a wilful or careless failure to preserve, disclose or produce for inspection relevant documents.

It might also arise from the provision of a non-complying affidavit of documents. A range of evidentiary, procedural and criminal sanctions was available in respect of defaults.

However, questions arose from time to time as to the willingness of the courts to utilise the penalty provisions. The submission accordingly proposed that an express provision should be inserted into the draft rules stating that “If the court determines that a party has failed to comply with any of the discovery obligations in these Rules the court may impose sanctions, if appropriate.”

Obituary – Richard Craddock QC Barrister Richard Craddock QC was undoubtedly one of the doyens of the New Zealand Bar, said New Zealand Bar Association President, Miriam Dean CNZM QC. Mr Craddock had recently been diagnosed with a brain tumour and died at his home in Wanaka on 2 April 2011. Ms Dean said that many members of the association had been privileged over the years to work with Mr Craddock and he would be sadly missed by his colleagues at the independent Bar and by the judiciary.

Barrister James Farmer QC said that Mr Craddock had arguably been the first top barrister who had chosen to make his whole career at the Bar and not to go to the Bench.

Dr Farmer said that this example had been extremely significant as it had indicated that the role performed by a top barrister was a vital one and just as important as that of a judge.

“He was, I think, the outstanding advocate of his generation.”

Dr Farmer said that Mr Craddock’s advocacy had been typified by his ability to present cases in a very simplified way that focused on the essential points.

“He was certainly able to dominate witnesses in crossexamination if domination was required. The great majority of his opponents not only respected him but were in fear of appearing against him.”

Dr Farmer said that Mr Craddock had been extremely adept at negotiating settlements. His reputation as a top-notch courtroom advocate had helped him to obtain settlements that would not otherwise have been possible.

Bell Gully senior litigation partner, Brian Latimour, said that he believed that two of Mr Craddock’s greatest qualities were his courage and his commitment to his cases.

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“He was an advocate who was fearless in advancing his client’s interests no matter how difficult the situation.”

Mr Latimour said that it was a testament to Mr Craddock’s thorough preparation that he invariably achieved the best outcome for his client.

“Richard was formidable precisely because his forensic skills were always backed by a mastery of the detail of even the most complex cases. His ability to instantly recall and deploy that detail in the midst of the fray made it impossible for opponents, witnesses and, indeed, the court, ever to sidestep Richard or catch him out.”

Obituary – Dr George Barton QC Dr George Barton QC was a leader of the Bar, a mentor to many and highly respected by all, said Attorney-General Christopher Finlayson. Mr Finlayson said that Dr Barton was accepted as the father of the legal profession in New Zealand. His career had been characterised by excellence and dedication.

“He made a huge contribution to the law in New Zealand and the Pacific for over 60 years. He served the legal profession, the university, the Presbyterian Church and the international community, most recently as President of the United Bible Societies. No greater contribution can be made to justice than by a fiercely independent member of the Bar who will take on unpopular cases or act for unpopular litigants. Dr Barton was in this category. He was first and foremost a servant of the law and throughout his career exhibited qualities of excellence, fortitude and independence.”

Mr Finlayson described Dr Barton as one of the finest legal practitioners New Zealand had produced and said that his example was an inspiration for generations of New Zealand lawyers.

Barrister and former Law Commissioner, Frances Joychild, worked closely with Dr Barton over a four year period when she was a legal adviser at the Human Rights Commission in the 1980s. She briefed him in relation to alleged discrimination cases. Ms Joychild said that, in 1981, Dr Barton successfully acted for the commission against a motor company and the Christchurch Press in the recently-created Equal Opportunities Tribunal. An employer had advertised a preference for a Christian worker for a job and, when interviewing and rejecting an applicant, had asked questions about the extent of his religious belief and faith.

“He was not a man to do things by halves.”

Ms Joychild said that, in 1984, Dr Barton had been instructed to intervene on behalf of the Human Rights Commission in proceedings before the Equal Opportunities Tribunal after a woman was forced to leave her job following persistent sexual advances by her employer. The novel issue was whether or not sexual harassment could be considered a form of sex discrimination.

Ms Joychild said that Dr Barton had drawn on leading overseas decisions and successfully argued in the affirmative, opening the door for hundreds of claims to be made subsequently.

Ms Dean also recalled Mr Craddock’s colourful and daring private interests, noting that he climbed Mt Aspiring and Aoraki-Mt Cook. She said that he had gone on foreign expeditions, including to Alaska, and had been an instrument-rated private pilot for many years. Mr Craddock was an amateur yachtsman and, at one time, a competitive rally car driver.

In 1986, Ms Joychild said that Dr Barton had been briefed by the Proceedings Commissioner to represent 17 senior air hostesses who claimed that they had been denied promotion opportunities on gender grounds. Ms Joychild said that the case had been very fraught, with widespread and intense opposition by the women’s own union to their claim. However, Dr Barton had once again argued the case successfully.

Mr Latimour said that, in a private life full of personal achievements, Richard brought the same combination of preparation, skill and performance to his many exploits, whether serious mountain climbing, sailing, flying planes or driving performance cars.

ADLS Inc President Anna Fitzgibbon said that Mr Craddock had made an immense contribution to the legal profession both through his advocacy at the Bar and in other ways. Mr Craddock completed his law degree at the University of Otago and began his legal career by working in a law firm in Dunedin.

He later moved to Auckland where he became a partner at Holmden Horrocks before moving to the independent Bar and subsequently taking silk.

Mr Craddock specialised in commercial litigation, including appearing on behalf of clients at the Privy Council.

Mr Craddock had requested that no funeral be held but a celebration of his life for family, friends and colleagues took place at Rippon Vineyard and Winery in Wanaka in April.

“The women called him “Dr George” and he became much loved by them. In the years following the win, I would get a card from George whenever he returned from an international flight where one of “our lot” had been Chief Purser, reporting on the special attention he had received on that flight. Once, I recall him saying one of them had turned up at his hotel after the flight with a leg of lamb for him.”

Ms Joychild said that Dr Barton could read people very well and had a wonderfully wry, but kind, sense of humour. She said that she had learnt a huge amount from watching him practise. He had shown a strong interest in human rights and had used the law as both a shield and a sword to uphold and protect such rights.

“He was always extremely well-organised, thorough, focused and crystal-clear in his thinking. He would keep talking through the

facts and the law until he had identified the key legal issues and, at every stage of preparation, he came back to what they were.”

Barrister Chris Hodson QC said that Dr Barton had been a superb colleague.

“I was his junior occasionally. He always involved colleagues to the extent that allowed him to be present mainly at crucial moments, and perhaps not always even then: it was a great mark of confidence. The clients never seemed to mind, but that was George’s charm.”

Mr Hodson recalled Dr Barton’s many different facets.

“George the International Law Lecturer addressed his silent class each week for 40 minutes almost non-stop; almost without notes. The task of the class was to get every word down, none were wasted, and recount them verbatim in the finals. There were interruptions in my year, but only from Geoffrey Palmer who sat near the back and occasionally put his hand up to say something; to which George would either briefly reply or nod and carry on.

George the Roy Parsons habitué was always so very full of life and vital interest, particularly in anything that sounded remotely like good-natured gossip, and of excellent advice to those in need.”

Mr Hodson said that Dr Barton had also acted as a prosecutor on rare occasions. In 1982, Mr Hodson had appeared for a doctor in his first medical disciplinary case. The patient had died an unpleasant death and Dr Barton had acted for the very upset family.

“Passions ran unusually high, even for that sometimes emotional forum. George was the epitome of wise counsel, making his points with sympathy for all parties; the doctor being nearly as distressed as the family. Cross-examination for both sides was not easy, George and I exchanged words more than once. But after all, when his taxi arrived he, with in the circumstances great courtesy, invited me to join him to the airport. Such had been the exchanges that the tribunal chair (not a lawyer) told me afterwards this made a great impression on the assembled observers and I was able to say that with George the professional traditions were safe.”

Dr Barton did not initially plan a career in the law. He studied classics and mathematics at the University of Otago and graduated with a BA. However, he began taking law units in his second year at university and completed an LLB at Victoria University in 1948. Dr Barton combined legal practice with lecturing, becoming a highly regarded teacher of law at Victoria University. He appeared eleven times at the Privy Council.

At a function to celebrate Dr Barton’s 60th year at the Bar in 2008, barrister and former Minister of Justice, Bill Jeffries, described Dr Barton as “the leader of the New Zealand Bar.” Mr Jeffries said that Dr Barton had in his third decade of practice secured his reputation as one of New Zealand’s leading legal figures in the historic cases of Parsons v Burk, the Europa Oil taxation case and Fitzgerald v Muldoon.

In 1982, Dr Barton appeared in the case of Lesa v AttorneyGeneral and won a declaration from the Privy Council that the plaintiff and many thousands of other Samoans born at that time were British nationals and, accordingly, New Zealand citizens.

Ms Joychild said that Dr Barton had contacted her only three weeks before he died. She had asked him whether he was now in semi-retirement and he had responded that he most certainly was not and never had been.

Dr Barton passed away in May at the age of 87 after suffering a stroke. His funeral was held at St John’s in the City in Wellington.

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Disaster Relief Summary of Minutes of New Zealand Bar Association Council Meeting Held on 15 April 2011

The Christchurch earthquakes of 4 September 2010 and 22 February 2011 caused huge devastation and suffering and highlighted the importance of disaster preparation. Barrister and New Zealand Bar Association Council member, Clive Elliott, is one who has taken this lesson to heart by preparing his own Emergency Kit Checklist. Mr Elliott has kindly made his checklist available below so that members can make use of it for preparing themselves and their families for future emergencies.

1. Opening and Introduction

3. President’s report

1.1 Present: Miriam Dean CNZM QC, Stephen Mills QC, Christopher Gudsell QC, Malcolm Wallace, Anthony Rogers, Gerard Curry, Clive Elliott, Toby Futter, Elliot Hudson, Tim Castle, Dean Tobin and Melissa Perkin

Emergency Kit You should keep enough supplies in your home to meet the needs of you and your family for at least three days.

You should also have an emergency supply kit or “to go” bag to take at short notice in an evacuation. Check and replenish once a year. The basics to stock in your portable “to go” bag should include:

M Dean noted in relation to Christchurch practitioners that it was a good idea for NZBA members to keep in touch with a view to providing assistance/support where possible. M Dean noted that a $10,000 contribution on behalf of the NZBA to the New Zealand Government Christchurch Earthquake Appeal Fund had been made.

1.2 Apologies: Catherine Bibbey, Kenneth Johnston and Kate Davenport.

1.3 Welcome: M Dean welcomed M Perkin to her first meeting and noted the Council’s delight at her acceptance of the Executive Director appointment.

2. Minutes of previous meeting G Curry moved and A Rogers seconded that the Minutes of the Council meeting on 25 February 2011 be accepted as a true and accurate record.

Action Items / Matters arising M Dean noted the following items from the Action List: 2.1 Legal Work – Barristers Sole: S Mills noted the issue with regard to practising certificates for junior barristers and that after discussions with the New Zealand Law Society, the position is that barristers are not entitled to a practising certificate unless employed or eligible to practise on own account.

S Mills advised that he and M Dean would be involved in further discussions with NZLS as a regulatory change was required to make provision for a third category as a pupil. M Dean advised that it had been agreed with NZLS that the NZBA would draft a protocol for a pupillage scheme. S Mills and T Futter agreed to work on a draft protocol.

2.2 Stepping Up: M Dean noted NZLS had advised that for barristers wishing to practise, they would be required to complete the Stepping Up programme. There would also be a transitional requirement for barristers who had not previously done the Stepping Up course to do so if seeking to practise as a barrister and solicitor.

2.3 Disciplinary Proceedings: G Curry noted that he had attended a meeting with Christine Grice and Ian Haynes and that following on from that, Christine Grice had responded by letter to M Dean. G Curry advised that he would discuss the matter in more detail with any interested Council member.

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M Dean spoke to her President’s report, referring specifically to issues relating to discipline, the Rules Committee, the NZBA/ NZLS Joint Bar Dinner, the Bench and Bar Dinner, the visit by Advocate and Member of the Supreme Court Bar Association, MR Gupta, M Dean’s meeting with the Attorney-General, and possible membership of NZBA by Meredith Connell and the Public Defence Service.

4. Executive Director’s report The Executive Director’s report dealt with membership and subscription statistics, an insurance plan update, and International Bar Association membership.

5. Treasurer’s report E Hudson spoke to the February and March 2011 financial accounts.It was noted that the Association Rules did not permit membership by persons with a barristers and solicitors practising certificate.

6. Annual conference The Council discussed the venue, what the Friday programme might look like, budget, and potential speakers. The add-on session of Professor Raymond was also discussed. C Elliott noted that the content was underway and gave a report on progress.

7. Junior Barristers’ representative report T Futter advised that the Sentencing Advocacy Competition went well. He agreed to make contact with other junior barristers to get their permission to add their details to the Find a Junior page. He advised that the Junior members’ handbook was in progress. A replacement was required for T Futter on the Council as his term was concluding.

8. Other items The Council also discussed the Training Committee report, Member Benefits, and General Business, including Legal Aid changes, the Judges’ Pecuniary Interests Bill, the Crown Solicitors’ Review, the AMINZ Annual Conference, the Strategy Review, Client Care Letters and the International Criminal Law Symposium.

Checklist Personal Items Food Fresh drinking water Food (nuts, dried fruit, energy bars) General Items Battery-powered radio and extra batteries Box cutter Candles Compass Duct tape Dust mask Manual can opener Map Matches in a waterproof container Mess kits Mobile phone & charger Paper and pencil Plastic rubbish bags Plastic sheeting Plastic storage containers Pocket knife Rope Torch (with fresh batteries) Whistle Wrench or pliers

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Gloves, hat and shoes Rain gear Sleeping bag Soap Sunglasses Thermal underwear Toilet paper Towelettes Track suit Medical Supplies Anti-bacterial ointment Anti-diarrhea medication Antiseptic wipes Bandages Breathable tape Gauze Hand sanitizer Pain killers Scissors (small) Sterile dressing Tweezers Documents Cash or traveller’s cheques, change Data stick with important records including insurance and home inventory Personal ID

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2010 - 2011 COUNCIL CONTACT DETAILS MIRIAM DEAN QC - President Ph: 0064 9 377 8959 Fax: 0064 9 377 8960 P O Box 4111, Shortland Street, Auckland, 1140 miriam@barrists.co.nz COLIN CARRUTHERS QC - Past President Ph: 0064 4 471 4275 Fax: 0064 4 471 1195 P O Box 305, Lambton Quay, Wellington, 6140 crc@crcarruthers.co.nz STEPHEN MILLS QC - Auckland Vice-President Ph: 0064 9 307 9820 Fax: 0064 9 307 1572 P O Box 4338, Shortland Street, Auckland, 1140 stephen.mills@shortlandchambers.co.nz CHRISTOPHER GUDSELL QC - Waikato/BOP Vice-President Ph: 0064 7 839 3290 Fax: 0064 7 834 0587 P O Box 19085, Hamilton, 3244 ctgudsell@xtra.co.nz KENNETH JOHNSTON - Wellington Vice-President Ph: 0064 4 372 3466 Fax: 0064 4 365 2592 P O Box 5058, Lambton Quay, Wellington, 6145 k-johnston@clear.net.nz CATHERINE BIBBEY - South Island Vice-President Ph: 0064 3 377 5589Fax: 0064 3 365 2592 P O Box 13-868, Armagh, Christchurch, 8141 c.e.bibbey@xtra.co.nz TOBY FUTTER - Junior Barristers’ Representative Ph: 0064 9 308 0516 Fax: 0064 9 308 0518 Bankside Chambers, Level 22, 88 Shortland Street, Auckland toby@futter.co.nz ELLIOT HUDSON - Treasurer / Secretary Ph: 0064 7 839 6644 Fax: 0064 7 839 6610 P O Box 19252, Hamilton, 3244 elliothudson@xtra.co.nz TIM CASTLE Ph: 0064 4 471 0523 Fax: 0064 4 471 0672 P O Box 10048, Wellington tim.castle@xtra.co.nz GERARD CURRY Ph: 0064 9 377 9783 Fax: 0064 9 377 9784 P O Box 106586, Auckland, 1143 gerard.curry@argylechambers.com KATE DAVENPORT Ph: 0064 9 307 8787 Fax: 0064 9 307 8788 P O Box 141, Shortland Street, Auckland, 1140 kate@katedavenport.co.nz ANTHONY ROGERS Ph: 0064 9 377 4850 Fax: 0064 9 377 4850 P O Box 1771, Shortland Street, Auckland, 1140 agvr@xtra.co.nz CLIVE ELLIOTT Ph: 0064 9 309 1769 Fax: 0064 9 366 1599 P O Box 4338, Shortland Street, Auckland, 1140 elliott@shortlandchambers.co.nz MALCOLM WALLACE Ph: 0064 3 379 6976 Fax: 0064 3 365 2592 P O Box 13254, Armagh, Christchurch, 8141 malcolmwallace@bridgesidechambers.co.nz DEAN TOBIN Ph: 0064 3 477 8781 Fax: 0064 3 477 8382 P O Box 1424, Princes Chambers, Princes Street, Dunedin, 9054 dean.tobin@princeschambers.net

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