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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