At the Bar June 2012

At The Bar June 2012

Chief High Court Judge boosts engagement with profession Sir David Baragwanath heads Special Tribunal for Lebanon David Williams QC sits in Dubai commercial court Kate Davenport, Rebecca Edwards appear before the Privy Council

INSIDE THIS ISSUE Pg 2 - Chief High Court Judge to Travel to High Court Centres for Consultation with Profession Pg 4 - Sir David Baragwanath Re-elected President of Special Tribunal for Lebanon Pg 5 - David Williams QC Sits on Dubai IFC Court Pg 6 - The Privy Council Revisited

Chief High Court Judge to Travel to High Court Centres for Consultation with Profession

By Catriona MacLennan

Pg 7 - Parliamentary Counsel Office Drafts Hundreds of Laws Every Year

Another illustration of judicial engagement with the profession was the participation of judges in seminars about the courts, said Justice Winkelmann. An example was the February seminar The Life of a High Court File for Junior Practitioners. Justice Lang had spoken at that seminar, which was to be repeated in Wellington. Her Honour said that it was important that lawyers understood how the courts operated. Some practitioners did not have detailed knowledge about the workings of Registries and their interaction with the judiciary.

Pg 8 - The Commercial List and Judicial Specialisation in the High Court Pg 9 - Judge Harvey’s Doctorate to Become Book in 2013 Pg 10 - Barristers and the Fine Art of Networking Pg 11 - Walking the Talk Pg 12 - NZBA Sponsors Sentencing Advocacy Competition Pg 12 Pg 13 Pg 14 Pg 15

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New Members of the New Zealand Bar Association NZBA Seminar Tricks of the Trade - Civil Marsh Upcoming Events and Recent NZBA News

Pg 16 - Obituary - Sir Rodney Gallen - Law and Maori Key for Retired High Court Judge Pg 17 - Obituary - John Haigh QC - Legal World Mourns Sudden Passing of Top Barrister Pg 18 - NZBA’s 2012 Conference to be Held in Melbourne - Theme is Leading a Successful Team Pg 19 -

Pg 20 - Pg 22 -

NZBA President to Speak on Future of Advocacy at World Bar Conference NZBA Makes Submission on Review of Judicature Act Foreign Correspondent - News From Around the World

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 Kirsten McLeod Tel: 9 834 2224 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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Justice Winkelmann Chief High Court Judge, Justice Helen Winkelmann, plans to travel to the 17 High Court centres over the next 18 months to two years to speak to the legal profession about how civil cases can best be dealt with by the courts, particularly in the light of audio visual links and the use of electronic documents and files. Justice Winkelmann will also seek feedback from practitioners about how well services are provided by the High Court in the various regions.

Justice Winkelmann told At The Bar that the judiciary was keen to promote greater engagement with the legal profession. One example of that had been the case management forums held around New Zealand in 2011. Her Honour said that the input provided by lawyers attending the forums had helped to shape the final rules. The feedback had been timely and the profession had made clear the importance of ensuring that, whatever the rules contained, they were enforced. Lawyers participating in the forums had indicated that a key part of the reforms would be effecting behavioural change.

Justice Winkelmann in February released the nine page Report from the High Court on 2011- The Year in Review. The document said that the court had made progress towards the goals of improving case management and increasing timeliness in the hearing of High Court cases and the delivery of judgments. The report also highlighted five noteworthy points from the previous year – • A new approach to scheduling civil cases in Auckland had reduced the time to trial • A focus on scheduling of work in Auckland had enabled more timely allocation of judgment-writing time • Case management changes had been developed and the accompanying High Court Rules were expected to take effect in mid-2012 • Newly-committed criminal cases were to be offered dates within 12 months of committal • Between 1 January and 31 December 2011, 185 jury trials, 1007 civil proceedings on the ready list and 1144 civil and criminal appeals had been completed.

The report was the first in a new format and Justice Winkelmann said that she intended to produce them

each year from now on. Her Honour said that the High Court was trying to obtain better statistics about its work to assist with the report.

Justice Winkelmann said that the Rules Committee had been working to improve court procedures. It was an important body and a very good model of co-operation between the judiciary, the profession and the Ministry of Justice to achieve change.

Her Honour said that NZBA representative Stephen Mills QC and NZLS representative Bruce Gray QC were making excellent and very valuable contributions.

Major reforms to the discovery process took effect on 1 February 2012. Justice Winkelmann said that the changes had been embraced by the profession and appeared to be operating well.

“They are quite fundamental reforms and the profession does seem to be engaging with them.”

Justice Winkelmann said that changes to case management rules had also been drafted. The aim was to have one case management conference for simple proceedings and halt the rote use of conferences.

“We received clear feedback from the profession that they wanted to end the rolling over of case management conferences which they feel are a waste of time and resources.”

Such cases would move to the High Court immediately after their first call, rather than staying in the District Court for a longer period.

Turning to pragmatic matters, Justice Winkelmann said that there was inadequate space in the High Court at Auckland.

Work was accordingly going on with the Ministry of Justice to develop a 20-year strategic plan. Input would be sought from the NZBA and NZLS when plans moved into the detailed phase. Her Honour said that the Waikato/ Bay of Plenty region had experienced a significant increase in its civil workload, particularly in Tauranga. In Christchurch, there was an ongoing need to grapple with the effects of the earthquakes. Sittings were now occurring in the courthouse but there was a need to investigate longer-term options.

In relation to the time taken following hearing to deliver judgments, Her Honour said that there had until now been a lack of reliable information about this available to the judiciary. However, the ministry was now implementing procedures to collect that information so that it could be reported against timeliness standards in future. Justice Winkelmann said that she anticipated the information collected would enable reporting in relation to that aspect of the court’s performance to commence in 2013.

A feature of the reforms was issues conferences, particularly in complex matters. The conferences lasted between half a day and one day, with the focus being on identifying and refining the issues for disposition. Justice Winkelmann said that, although those rule changes would not take effect until 1 August, they had been piloted in Auckland and Wellington since the beginning of 2012 and the trial had been successful.

The conferences were also providing the High Court with an opportunity to collect more detailed information about the cases proceeding to full hearings.

Justice Winkelmann said that a Rules Committee working group, chaired by Justice Asher, had been set up to prepare draft protocols for the electronic enablement of aspects of court hearings. The intention was that agreement be reached on how submissions, authorities and agreed bundles could be dealt with at trial in electronic format. Her Honour said that it was anticipated that judges and counsel and, to some extent witnesses, would use tablet technology.

Her Honour said that the Ministry of Justice was working on creating an electronic operating model so that filing could be done electronically. That would require the integration of Registry services, which would dovetail well with the judiciary’s move to a nationwide approach to the allocation of judicial time. Justice Winkelmann said that the aim was to ensure that waiting times in different districts were similar so that there were no disparities.

Justice Winkelmann said that the coming into force of the most substantial part of the Criminal Procedure Act 2011 in mid-2013 was expected to result in an increasing proportion of appeals from the District Court being dealt with in the High Court. That was because there would be an increase in judge-alone trials in the District Court and appeals from judge-alone trials were dealt with by the High Court rather than by the Court of Appeal.

A protocol had been developed by the Chief High Court Judge and the Chief District Court Judge to better identify which serious and complex criminal cases should be dealt with in the High Court.

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Sir David Baragwanath Re-elected President of Special Tribunal for Lebanon

By Catriona MacLennan

Former Court of Appeal Judge, Sir David Baragwanath, has been reelected unanimously as president of the Special Tribunal for Lebanon and will serve a further 18-month term in that position. Sir David was last year proposed as president of the tribunal

by Judge Antonio Cassesse, the former president, who stepped down on the grounds of ill-health in October 2011.

The Special Tribunal for Lebanon opened on 1 March 2009 in The Hague. It was established following Sir David Baragwanath a large explosion near the St George Hotel in Beirut on 14 February 2005 which killed 23 people, including the former Lebanese prime minister, Rafik Hariri, and injured many others. There was strong condemnation of the bombing, both within Lebanon and internationally. The United Nations Security Council called on the Lebanese Government to bring the perpetrators to justice. On 25 February, the United Nations sent a fact-finding mission to Beirut to inquire into the causes and circumstances of the attack. The group prepared a report which recommended the establishment of an independent international entity to investigate the bombing.

The United Nations International Independent Investigation Committee was established in April 2005. In December that year, following further killings and bombings in Lebanon, the Lebanese Government requested that the United Nations create a tribunal of “international character.” The Lebanese Government and the United Nations signed an agreement for the Special Tribunal for Lebanon on 23 January 2007 and the tribunal was established in 2007 by Resolution 1757. It opened on 1 March 2009 in The Hague. The tribunal is an independent judicial organisation, not a court. It was agreed that it should be based in the Netherlands rather than in Lebanon to ensure justice, fairness and security. The tribunal has an office in Beirut to support its investigation and security work.

The tribunal comprises four organs – • Chambers • The Office of the Prosecutor • The Defence Office and • The Registry.

Its work is divided into four phases. First, the Office of the Prosecutor conducts confidential investigations of suspects. If there is sufficient evidence against a suspect, an indictment will be drafted and submitted to the pre-trial judge for examination. The pre-trial judge considers the evidence and can dismiss the case, seek more evidence from the prosecution, or decide that there is a prima facie case against the suspect.

Secondly, the pre-trial judge prepares the case for trial, during which time the prosecution will continue its investigation and the defence will begin its work. The pre-trial judge will also rule on any applications submitted by victims to participate in the tribunal’s proceedings.

Thirdly, there is the trial. The trials are generally held in public and the trial chamber will decide on the roles to be played by the victims who participate in the proceedings. After hearing the evidence, the judges issue a judgment. The final phase is an appeal, which can be lodged either against the trial chamber verdict or against the sentence, or both.

One of the tribunal’s first acts was to order the release of four Lebanese generals who had been detained by the Lebanese authorities in connection with the Hariri investigation. The action was taken after the tribunal’s pre-trial judge ruled that, on the basis of the information available to the tribunal, there was no cause to detain the generals.

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The president of the tribunal serves for 18 months and is responsible for overseeing its efficient functioning, ensuring the good administration of justice and representing the tribunal in its dealings with the United Nations and with other states. The president is also responsible for supervising the conditions of detention for persons awaiting trial or appeal and for chairing the Senior Management Board, which co-ordinates the tribunal’s activities. Sir David said in a statement at the time of his appointment that public confidence in the tribunal required it to adhere strictly to the law.

“The people of Lebanon are entitled to receive from our tribunal the highest standards of justice delivered without fear or favour, affection or ill-will.”

Sir David in November 2011 made his first visit to Lebanon. In a statement issued on 28 November following the visit, he said that the main purpose of the tribunal was to bring the killers of Lebanese citizens to justice.

“This week’s visit to Beirut has given me great confidence that our mandate of challenging impunity will be fulfilled…I was particularly heartened by the determination of the representatives of the Lebanese people to work for the rule of law and long-term stability. The tribunal, comprising professional judges selected internationally and including senior members of the Lebanese judiciary, is a transitional institution.

We are determined to conclude our job as swiftly as fairness allows.”

Sir David said that he was convinced that the strength of the legal and academic communities of Lebanon would allow the administration of justice in the country to attain new heights. The support that the tribunal was receiving would permit it to contribute to securing the stability that everybody, apart from the killers, desired. That, in turn, would open new opportunities for Lebanon.

Sir David visited Lebanon against in April 2012 and held talks with Lebanese officials. He said in an interview that he had wanted to meet with the Lebanese Prime Minister and President to speak to them about the court’s work, as well as meeting with diplomats.

Sir David said that it had been important for him to meet with members of Lebanese society, including the Bar Association and law students. In a closed session with the Bar Association, he had lectured about Anglo-Saxon and Lebanese law. He said that the tribunal was doing its best to complete its work by March 2015.

On 10 May 2012, the defence team for Mustafa Badreddine filed a motion challenging the legality of the establishment of the tribunal.

The motion argued that the tribunal had been unlawfully established and that the Security Council had abused its powers by adopting Resolution 1757. The main arguments advanced in support of the motion included the following – • That the Security Council had abused its powers in adopting Resolution 1757 as the 2005 assassination and other killings had been tragic but could not be considered to pose a threat to international peace and security • That the Security Council had resorted to its Chapter VII powers to create the tribunal because attempts to create it by treaty had failed and this was an abuse of powers under the United Nations Charter • That the Tribunal’s creation was discriminatory and the Security Council had favoured one political tendency in Lebanon by establishing a tribunal to try crimes associated with the assassination of Hariri and not, for example, other terrorist crimes.

Sir David retired from the Bench of the New Zealand Court of Appeal on 2 August 2010 after 15 years as a judge. That date also marked his fiftieth year in the law.

David Williams QC Sits on Dubai IFC Court The Dubai International Financial Centre courts had developed a reputation for operating to the highest international standards and were providing the certainty and efficiency expected by the global institutions operating in Dubai, said David Williams QC. Mr Williams was appointed as a judge of the courts in January 2008, along with five other new judges. He sits twice a year.

The six new judges swore their oaths of office in front of the late His Highness Sheikh Mohammed Bin Rashid Al Maktoum, Vice-President and Prime Minister of the United Arab Emirates and Ruler of Dubai on 28 January 2008. The occasion was also noteworthy as marking the appointment of the first female judge in the United Arab Emirates. Governor of the Dubai International Financial Centre, Dr Omar Bin Sulaiman, said that the DIFC had undergone rapid growth. The DIFC courts aimed to aid that development by offering the highest-possible standards in legal disputes resolution, with a judicial system based on international best practice. Judges were drawn from many different common law countries.

David Williams QC

The DIFC courts were established in December 2004 as a court of the Emirate of Dubai, United Arab Emirates. Mr Williams said that they operated in English, used common law principles and dealt only with civil and commercial cases. The courts had been created because Dubai had realised that it did not have much oil and accordingly needed to find other sources of income.

It had decided to focus on two initiatives: tourism and the establishment of a financial centre modelled on those in Singapore and Hong Kong.

The DIFC courts were, he said, now recognised as innovators among the regional courts. The DIFC courts had adopted a world-class electronic case management system to improve hearing capabilities and had this year also created a pro bono scheme and pro bono clinic to enable people who could not afford lawyers to seek free advice from lawyers registered with the DIFC courts. There had been a speedy sign-up to the scheme by lawyers offering free legal advice.

Mr Williams said that, to ensure that the litigation conducted by lawyers was of the highest standard, the DIFC courts had implemented a Professional Code of Conduct to which all registered lawyers must adhere. The code was the first of its kind in the region and had been well-received by the United Arab Emirates’ legal community.

That represented a five-fold increase in the tribunal’s jurisdiction, following requests from the business and legal communities for an expansion of the tribunal’s role.

– David Williams QC

Mr Williams said that Dubai believed that its geographical location represented a competitive advantage but it had realised that its legal system was not appropriate. A decision had accordingly been made to create a Vatican City-like zone in the middle of Dubai to found the commercial courts’ jurisdiction. A group of English Queen’s Counsel had written commercial laws for the DIFC. If there was no applicable DIFC statute, regulation or court decision relating to a particular issue, the default position was that it was the law of England and Wales that was applicable.

Mr Williams said that one case over which he had presided had involved a business executive suing a bank for breach of contract and wrongful dismissal. The man had represented himself and, at the end of the proceedings, had sought to claim costs. Mr Williams noted that, in New Zealand, litigants in person could not claim costs. However, England had about eight years ago changed its law to permit litigants in person to claim costs.

Accordingly, said Mr Williams, he had sat in Dubai and applied an English statute to make an award of costs.

Mr Williams said that the judges of the court had overseen the introduction of an urgent case handling facility, web-based case management systems, e-filing and the signing of various local and international memoranda of understanding with the Dubai courts, Abu Dhabi Ministry of Justice, Ras Al Khaimah Courts’ Department, Dubai Judicial Institute and the Jordanian Ministry of Justice. The DIFC courts were now recognised as some of the most advanced commercial courts in the world.

Another important development for the DIFC courts, said Mr Williams, had been the establishment of a Small Claims Tribunal which resolved more than 90 per cent of cases within less than three weeks. He said that it played an important role in promoting the creation of a small and medium enterprise-friendly culture.

The tribunal’s jurisdiction had now been expanded to enable it to hear employment cases involving any amount, provided that all parties agreed to use the facility. It could also deal with non-employment- related disputes of up to AED500,000. That represented a five-fold increase in the tribunal’s jurisdiction, following requests from the business and legal communities for an expansion of the tribunal’s role.

Mr Williams said that the Ruler of Dubai had, in late 2011, passed a decree extending the jurisdiction of the DIFC courts beyond the DIFC. The courts could now hear cases originating from anywhere in the world. A substantial increase in caseload had accordingly been predicted by some observers.

In relation to New Zealand Prime Minister John Key’s ambition to make New Zealand a financial centre for the South Pacific, Mr Williams said that this would not happen unless this country created a commercial court. He said that he and other New Zealand senior barristers and retired judges had moved into arbitration work because New Zealand did not offer a commercial court. Mr Williams is a former member of the ICC Court of International Arbitration, the London Court of International Arbitration and the Board of Directors of the American Arbitration Association. He is a past president of the Arbitrators’ and Mediators’ Institute of New Zealand and a council member of the International Council for Commercial Arbitration.

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The Privy Council Revisited

By Kate Davenport, NZBA Council Member

An appearance in the Privy Council used to be the Holy Grail for all New Zealand counsel.

As one who never appeared in Downing Street when New Zealand still had a right of appeal to the Privy Council, the offer of a brief to appear in the Privy Council was manna from heaven.

I was briefed to appear on two appeals from the Cook Islands Kate Davenport to be heard in April 2012. The Cook Islands had retained the right of appeal to the Privy Council when New Zealand abolished it, but had never had any appeals. These two cases, to be heard together, were to be the first appeals ever heard from the Cook Islands. The cases were historic land law appeals.

The brief came from Ross Holmes, who practises in Auckland and in the Cook Islands. He was acting for both appellants.

Rebecca Edwards, also from Bankside Chambers, was briefed to appear for the respondents. Her instructing solicitor was Tina Browne, a solicitor in the Cook Islands. My junior, Justin Wall, also accompanied us.

The Privy Council is now housed with the Supreme Court in an old Guild Hall on Parliament Square in the heart of Central London. The Privy Council contributes about a third of the budget of the Supreme Court and takes up about a third of the Supreme Court Judges’ sitting time. Neither the Supreme Court nor Privy Council was sitting on the Tuesday before our appeals commenced and we were able to visit Courtroom 3 where our appeals would be heard. The security for the court was tight and every entrance to the building required a repeat bag and body scan.

The first thing that struck me was the intimacy of the court.

There was less than a metre between the Judges’ bench and where counsel sat. They were literally within touching distance. However, the public gallery was four rows deep and, throughout the two days we were in court, the court door was constantly opening and shutting with parties of tourists and observers coming into the courtroom, watching for 15 minutes, chattering in German or Polish or French and then leaving The room was panelled and formal – with the Judges’ bench lined with the flags of the countries who had the right of appeal to the Privy Council.

It was, therefore, a historic moment as I stood up to address the court on our first day. The court also acknowledged the historical importance for the Cook Islands. The flags on the Judges’ bench had been replaced with a large flag of the Cook Islands which hung in a corner of the Court. I could not imagine how long they had had it in storage or whether, as the day for the hearing of the appeal approached, someone had been hastily dispatched to buy the flag. Because of the significance, the court also invited us to tea with the Judges after the end of our first day of hearing. Lord Phillips entertained us in his jersey (which he had obviously put on after his appearance in court) and all of the Law Lords who had sat when New Zealand had a

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right of appeal to the Privy Council spoke about how much they missed seeing New Zealand advocates. They said that a lot of their current workload consisted of Capital cases which came from parts of the Carribean. The tea was very traditional, with the bone china cups and silver teapot, but in a very modern twist the attached photograph was taken by the Supreme Court Communications Officer for their website. The Law Lords who presided over this historic first appeal were Lady Hale, Lord Walker, Lord Mance, Lord Phillips (in the jumper) and the newlysworn in Lord Carnwath.

What of the hearing itself? The judges themselves were both formidable and easy to appear before. They were very interested in the historical and factual aspects of the case and in learning about native land title in the Cook Islands and in New Zealand. Lady Hale especially had an excellent recall for some of the Maori Land Law cases that she had sat on as a member of the Privy Council and was even able to produce some Te Reo for us. In that very English way, they were somehow more homely and yet more grand than you could have imagined.

The court sat from 10.30am to 1.00pm without a break and then from 2.00 to 4.00pm. At the end of the two days of hearing, especially when one had been on one’s feet for three to four hours and asked questions by some of the most exceptional legal minds in the world, both Rebecca and I (and Ross and Tina) felt exhausted and, instead of wanting to have that celebratory glass of wine, I think we all felt we wanted to go home and sleep. Instead, Rebecca, Justin and I visited Joe Smouha QC, a door tenant of Bankside Chambers, and had a look around his chambers at Essex Court. We then had a modest celebratory dinner together and Rebecca and I headed back to New Zealand the next day to start work on other cases.

It was a truly remarkable experience for me. There is something about London, dressed up as she was for the Jubilee and the Olympics, that was so impressive. You could also not ignore or fail to feel the gravitas of appearing before some of the judges of England’s highest court in a legal system that has operated for hundreds of years. While we are a grown-up country and we do not need to look to England to determine our law for us, nonetheless the chance to appear in the Privy Court was remarkable and truly a highlight in my legal career.

Further briefs will all be welcome!

Parliamentary Counsel Office Drafts Hundreds of Laws Every Year The biggest challenge for New Zealand’s law drafters was juggling competing priorities from different government departments to produce hundreds of technically correct and practically workable acts and regulations every year, said Acting Chief Parliamentary Counsel, Bill Moore. He told At The Bar that the Parliamentary Counsel Office had two key roles. The first of these was law drafting. The office drafted all government bills apart from income Bill Moore tax and other revenue bills such as those relating to Goods and Service tax and tax administration. It also drafted all government regulations, as well as commenting on local bills, private bills and, if the Attorney-General requested it to do so, members’ bills.

“Under MMP, policy, particularly on controversial bills, is up for grabs at every stage. You have to explain the changes made to bills and comment on legal questions and sometimes defend the changes.”

Legislation was drafted in accordance with the priorities set out in the Government’s legislative programme. This divided legislation into seven categories. Category One consisted of legislation which must be passed as a matter of law, including all appropriation bills. Category Two was the largest one and comprised those bills which the Government had decided must be passed as a matter of political priority. Category Three contained bills which should be passed within the current year, if possible. Category Four comprised bills which must be referred to a select committee, while category Five contained legislation for which the office must be given instructions this year. Category Six related to legislation which had been placed on hold and Category Seven contained bills which were not to proceed.

The office was a smallish government organisation with a budget of $20.8 million, which employed 80 staff. Mr Moore said that the majority of drafters were women, with the office employing 19 female drafters and 15 males. The youngest drafters were in their late-30s. Ian Jamieson and Don Mathieson QC were the office’s Special Counsel. Mr Moore said that most drafters were in their forties and fifties. Chris McPhail had been the first woman drafter when she was appointed in 1985. Mr Moore said that drafters were encouraged to specialise in a range of different areas as they became more senior.

Mr Moore said that the office concentrated on Category One and Two legislation, working on Category Three and Four bills as resources allowed. The office generally drafted approximately 400 regulations every year but in 2011 that figure had been well over 400. The office’s performance measures stated that 50 to 70 bills were to be introduced each year, between 80 and 100 acts were to be passed and 300 regulations were to be drafted. However, Mr Moore said that the actual output was normally above that.

He said that the office was now focusing on Exposure Drafts of legislation to improve the practical workability of bills. Exposure Drafts are drafted and released for public input prior to a bill being introduced to the House. The aim is to ensure that mistakes, omissions or weaknesses in bills are identified at an early stage so that the legislation is as robust as possible when it is debated in Parliament and finally passed in to law.

One recent example of an Exposure Draft being released for public comment was the Financial Markets Conduct Bill, which was released by the Ministry of Economic Development and then substantially revised as a result of comments made by law firms and others. Other illustrations include the Dairy Industry Restructuring Amendment Bill and the Credit Contracts and Consumer Finance Amendment Bill.

Mr Moore said that the office produced drafts of bills in response to instructions from government departments.

Occasionally, ministers would provide instructions directly. He said that the law drafting role in New Zealand was unusual in the Commonwealth because office staff appeared at select committees to explain changes to draft bills. The MMP electoral system had meant that many amendments to bills were made at the select committee stage.

By contrast, said Mr Moore, in Australian states the drafter’s job was largely finished once the bill was introduced to the House.

Secondly, Mr Moore said that the office had a key role to play in promoting access to the law. This work involved creating and maintaining the website providing free, online access to legislation. Mr Moore said that the office had this year upgraded the www.legislation.govt.nz website to make searching quicker and easier. The changeover to the new system took place over Easter. Those using the site could now find links to deemed regulations - such as Codes of Welfare under the Animal Welfare Act 1999 - as well as links to departmental websites.

“We’re starting to get a reasonably complete set of legislation accessible down to the tertiary level from one website without running around to other departmental websites.”

Mr Moore said that the two ministers with whom he primarily engaged were Attorney-General Chris Finlayson and Leader of the House Gerry Brownlee. The office reported to the Attorney-General, discussing with him any concerns about bills, legal risks, drafting timetables and other matters. Mr Moore met every Monday with Mr Brownlee, the Clerk of the House and other officials to discuss the parliamentary programme for the week. The office produced a list of bills, recording each bill’s state of readiness. The office also briefed Mr Brownlee on which legislation it believed must be passed as a matter of law. When the provisional Order Paper was published, the office combed through it to confirm the order of bills and make any necessary changes. Mr Moore said that the Monday meetings might appear quite mundane but they were central to the smooth operation of the House.

Parliament had recently made provision for extended sitting hours and Mr Moore said that the new regime was proving successful in getting legislation through Parliament. Treaty settlement bills and non-controversial measures were the key bills being dealt with in the extended sitting hours. This meant that more time could be given to debate on contentious matters such as the Search and Surveillance Bill during normal parliamentary sitting hours.

Over the past four or five years, Mr Moore said that the parliamentary Order Paper had become longer and longer, meaning that bills remained on it for lengthier periods. This meant that some bills had become stale and needed redrafting by the time they reached the top of the Order Paper. It was necessary to find the optimum balance between too much speed and too much delay when passing legislation. Mr Moore said that, until the introduction of extended sitting hours, parliamentary time had been dominated by politically contentious and politically significant matters, meaning that law reform measures had tended to be overlooked.

Mr Moore said that the office had a summer intern programme for law students. It took on two interns every summer. A course in Legislation was at present being run at Victoria University.

“We see it as important to be connected to Wellington and to the profession.”

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The Commercial List and Judicial Specialisation in the High Court

by Clive Elliott, NZBA Council Member

On 15 May 2012, the New Zealand Bar Association filed a detailed submission in response to the Law Commission’s issues paper Review of the Judicature Act Clive Elliott 1908 - Towards a Consolidated Courts Act. As part of the process, we conducted a telephone survey of members to ascertain their views regarding judicial specialisation in the High Court and as to the commercial list.

Members were also asked questions as to the appropriate jurisdictional limit for the District Court.

The survey was conducted by Jaime Pannett, a law student in Dunedin, who was contracted to poll all full members of the Association. Each member was phoned individually and if available asked a series of questions. 22 per cent of members, a total of 146 practitioners, participated in the survey. A thank you needs to be extended to those who contributed their time.

Judicial Specialisation A significant majority, 84 per cent of members questioned, indicated that they supported judicial specialisation. Only two per cent of members did not answer this question. 77 per cent indicated that judicial specialisation should be introduced on a more formalised basis.

This shows overwhelming support from members of the Bar. 59 per cent of members contacted said they supported setting up some form of court division. In terms of the specific divisions canvassed (criminal, commercial and civil) the results were less decisive, with a number of respondents saying that the distinction between commercial and civil was unclear. However, a number said that if other divisions were set up that the option would become more attractive.

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84 per cent of members supported the concept of a panel system. They were asked about a number of specific panels. Intellectual property, resource management and tax received the most support, with between 49 and 51 per cent. Trade practices closely followed with 44 per cent. 32 per cent of members supported an equity panel.

Based on the answers from those members who regard the commercial list as relevant to their area of practice the results are reasonably clear; that the commercial list, in its current incarnation, lacks support amongst the Bar. Whether the list should be extended to include more substantive matters is, however, evenly-balanced.

What emerged was that certain members did not support these particular panels on the basis that they were perhaps too specific and they suggested broader panels along the lines of the divisions option discuss below. In terms of other possible panels, family was the most popular, followed by criminal. Other suggestions included commercial, civil, public, admiralty, judicial review, and relationship property. A recurring theme was that any establishment of panels should be influenced by the frequency with which the specialist areas of law came before the High Court.

Even though support for the commercial list is low, the overwhelming support for judicial specialisation and the introduction of panels might help explain why the majority of members polled would prefer to see the commercial list reorganised or replaced.

Commercial List In terms of the commercial list, quite a few members expressed reservations about answering the questions on the basis that they felt they were not sufficiently familiar with the operation of the commercial list. Most of the respondents who did feel qualified were based in Auckland or Wellington. Given that relatively few members responded to these questions and in order to avoid the results being skewed, we only relied on those participants who felt comfortable answering these questions.

In terms of qualified members, in answer to the question whether the commercial list should be retained (continued in its current form) just 23 per cent said yes; whereas 77 per cent said no. As to whether the commercial list should be extended to include more substantive matters, the result was relatively evenly balanced with 51 per cent answering yes and 49 per cent saying no. When asked whether the commercial list should be replaced with a stand-alone commercial court, 36 per cent said yes and 64 per cent no.

District Court Jurisdiction Finally, in terms of the jurisdictional limits of the District Court, the majority of members (56 per cent) supported an increase to the jurisdictional limit. While a number of options were canvassed, the most popular alternative level was $500,000, with 45 per cent of members’ support.

In the Association’s submission to the Law Commission discussion paper, we supported efforts to achieve better allocation of scarce judicial resources generally and more specifically for greater judicial specialisation. We also identified the need for these issues to be debated amongst all stakeholders and suggested that the process should be accelerated. In this regard, based in part on the result of the survey, we indicated the Bar’s strong support for the introduction of specialist panels. We also submitted that panels of specialist judges might not be enough and that procedures generally also needed to be structured so as to deliver the most cost-effective outcomes, preferably within a wider framework of divisions, covering (for example) criminal, commercial and civil/public.

The Association’s submissions to the Law Commission and the survey results are available on the NZBA’s website to those who are interested.

Judge Harvey’s Doctorate to Become Book in 2013

Judge Harvey

A thesis tracing the impact of the printing press on law and legal culture between the fifteenth and seventeenth centuries will in 2013 become a book. Auckland District Court Judge David Harvey was in May awarded his Doctorate of Philosophy in Law, following the completion of his thesis titled The Law Emprynted and Englysshed: The Printing Press as an Agent of Change in Law and Legal Culture 1475-1642.

Next year, Judge Harvey will do further work on the topic with the goal of turning his thesis into a book telling the story of the links between technology and the law during the Reformation. Judge Harvey began research and study for his doctorate in 2004, under the supervision of Professor David Williams and Dr Rosemary Tobin of the University of Auckland’s Faculty of Law and Judith Bassett and Dr Lindsay Diggelmann of the Department of History.

Judge Harvey told At The Bar that he had studied the development of the printing press and the various regulatory structures that had evolved around it and its use by law printers, lawyers, law students and the state. He said that he had wanted to examine in his thesis the impact of new technology on the law but had speedily realised that the dynamism of change in the contemporary IT field would make it difficult for research to keep pace with continuous developments. That was demonstrated by the fact that, when he began his thesis in 2004, Facebook and Twitter were not yet available and Google was only beginning to make its mark.

However, as the printing press had in fact been the first information technology to enable the mass production of texts, he had decided to focus on its influence on the sixteenth and seventeenth century legal professions. He said that Professor Elizabeth Eisenstein in her book, The Printing Press as an Agent of Change, had written about the influence of printing but had not specifically studied its impact on the legal profession. Judge Harvey had accordingly decided to focus his attention on the links between the printing press and the law.

He took Professor Einstein’s thesis, which remained controversial decades after it was first aired, and applied it within the context of the intellectual activity of the English legal profession. Judge Harvey said that the printing press had provided an alternative to a sophisticated legal education process based on an oral/aural system, coupled with the utilisation of largely self-created manuscript materials. Printed books had become increasingly available in the sixteenth and seventeenth centuries. Movements were also afoot to discard the arcane language of the law and to make printed legal materials available in English.

Judge Harvey said that tensions had arisen as the advantages of print were recognised by the authorities – the church and the state – but the new technology was also seen

as a disadvantage to struggles to regulate an increasing flow of information. Judge Harvey said that the law had proved to be an unwieldy instrument in this struggle.

He said that the legal works printed during the sixteenth century had primarily been law reports and abridgements, with a new style of law reporting becoming evident. Print had enabled legal writers to concentrate on principles, rather than on pleadings and procedure.

The seventeenth century had then witnessed a move from printed reports to printed treatises and guide books for administrators and members of the “lower branch” of the legal profession. Legal information for the purposes of standardising procedures and for educational purposes – as a supplement to a troubled legal education system – had begun to dominate.

Judge Harvey said that his research period had ended on the eve of the Civil War. That was a time that, for a short period, had seen the end of press licensing. It had also been the time of the demise of Star Chamber, which had played a significant - though largely unsuccessful - role in seeking to regulate the output of the printing press and the printing trade.

The previous accepted wisdom among scholars studying the Reformation period was that censorship was the key influence on printing. However, Judge Harvey said that he had reached the novel conclusion that, in fact, the real story of the era related to industry regulation and the use of monopolies. It was not the state which had been the most successful in controlling the new technology but rather stationers, who had used legal processes to obtain monopolies and protect their businesses. They had utilised the speedy decisions handed down by Star Chamber as a key avenue for achieving their goal of keeping printing business to themselves.

Judge Harvey said that the changes in the way in which lawyers dealt with information and in their culture had been gradual and progressive, with their hallmark being a coexistence with earlier information-creation, gathering and distribution practices.

A novel feature of Judge Harvey’s thesis was that it used the original typefaces and grammatical styles when quoting from historical documents. However, he said that he had used the latest modern technology to achieve this, by employing a piece of software that translated modern script and sentences into old typefaces and spelling conventions.

Judge Harvey plans to take a break from the sixteenth and seventeenth centuries for the rest of this year, before reworking his thesis in 2013 so that it can be published as a book. He said that a book needed to tell a story and the academic treatise would accordingly be modified to reshape it into that format.

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Barristers and the Fine Art of Networking

by Emily Morrow

Since the global financial crisis, many barristers tell me that the market for legal services has become more competitive.

They are working harder to get new instructions, both from Emily Morrow existing or new referrers and/ or clients. Not surprisingly, barristers want to focus on their business development capabilities; what should they be doing and how can they maximise the return on investment for their efforts?

In my experience, networking needs to be an important component of any barrister’s business development strategy. It’s low cost, high return, easily done and endless in its possibilities. It can be done very appropriately without in any way “diluting” one’s “brand” as a professional.

Interestingly (but perhaps not surprisingly), many lawyers (both solicitors and barristers) tell me they are not entirely comfortable with their networking capabilities. They believe they do not take full advantage of the professional opportunities that efficient and effective networking might generate.

Why is this? Why do otherwise exceedingly bright, capable and self-confident barristers fail to develop professional networks that will build their practices? What holds them back? Clearly, none of us learned the fine art of networking while studying the law and that is perhaps one reason. Another, more subtle, but yet significant reason is that many barristers, in their own minds, have quite negative associations with the concept of networking. Hence, this article.

When working with clients, I invariably discuss networking. It’s a critical capability for successful business development. I often say “Tell me what networking means to you”. Their answers are interesting.

One said, “I know I should network but it feels like manipulating other people and that makes me uncomfortable”. Another responded, “It’s about getting to know other people, but after I’ve done that, I don’t know what to do next”. And yet another said, “It feels unprofessional to me”. Predictably, these clients were anxious about their abilities to network successfully. Fortunately, as with mastering any new technical skill, with some focus and practice, anyone can learn and perfect the fine art of networking.

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When I think about networking, three things come to mind. They are relationship building, giving and Malcolm Gladwell’s book, The Tipping Point. Starting with the last first, Gladwell discusses the midnight ride of Paul Revere and why it successfully mobilised American resistance during the Revolutionary War. Paul Revere was the quintessential “connector” (he knew everyone), “maven” (he knew a lot about everything) and “salesman” (he knew how to promote anything). He was a consummate networker. It wasn’t about him; it was about using his networking skills to accomplish something important for his community. I expect he never asked for thanks.

To be honest, I love to network; I’m a natural at it. Put me anywhere in the world and, like a cat landing solidly on all four feet, I’ll instinctively begin networking. It’s the relationship building and the giving that I find irresistible.

Everyone you meet has a unique perspective and I’m endlessly interested in learning about that. In the process, I gather information and I remember it. This is where the giving piece comes in. Invariably, later on, I find such information could be helpful to another person. Then, really remarkable things can start happening. I might suggest ways to connect the dots so the other person has new options. I don’t tell others what to do, but instead act as a catalyst by connecting people with possible opportunities. It’s their choice to act on those or not.

If you’d like to enhance your networking skills, consider the following: •

•

•

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Articulate why networking is important for you, what you intend to accomplish and what success will look like if you achieve your goals.

Identify who you’d like to meet and how to do that. Will you contact individuals directly, show up at a function where you might encounter them by chance, ask someone else to introduce you or what? The choice will depend on what makes you comfortable. I find extraverts are often more likely to “cold call”, whereas introverts prefer introductions.

No one size fits all.

When you meet someone you’d like to get to know better, show a genuine interest and practise active listening. As the other person tells you about him/herself, suspend your thinking, listen to the other fully, allow a brief pause when the other finishes and then respond. The most charming person is the best listener. If you listen actively, you will be memorable in a positive way.

Consider the significance of what the other person is telling you. What is particularly salient, what has the broadest

implications, what will be relevant to you and others? Remember that information and jettison the rest.

Your memory is limited.

• Keep secrets and respect personal information. Networking is not about gossiping. Be gracious and positive.

Don’t malign others. Stay on the “high road”.

• Then go about your life like the proverbial bumble bee alighting on many flowers. Be a connector, a maven and/or a salesman. Cross- pollinate when you can so the garden becomes a beautiful, rich and robust place where everyone thrives.

• Be prepared for unexpected successes and pursue them assiduously.

Conversely, do not be surprised when interactions prove to be less “fruitful” than you might have hoped. In that case, nimbly change your course, do not take it personally, and pursue new options. Be sure you always have some additional networking opportunities in mind so you can follow up on these and lose no momentum. There is always another fish in the sea…..

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Enjoy the experience and savour your successes. By focusing on giving to others and benefiting your community as a whole, what goes around will come around. You will build an optimal network that benefits everyone while building your professional practice.

I cannot guarantee your networking efforts will immediately translate into a fuller “pipeline” for your legal practice. It takes a while to build a high-functioning network that consistently generates new business. However, if you persevere, are consistent in your efforts and continue broadening and deepening your contacts, you will be successful.

You will also never regret the time, energy and creativity that you invested in the process. *EMILY MORROW, BA, JD (Juris Doctor),is a former lawyer and senior partner with a large firm in Vermont, where she built a premier trusts, estates and tax practice. Having worked in Sydney and the United States, Emily now resides in Auckland and provides tailored consulting services for lawyers focusing on non-technical skills that correlate with professional success; business development, communication, delegation, self- presentation, leadership, team building/management and the like. For more information visit www.emilymorrow.com.

Walking The Talk, Wellington, 8 March 2012

Mary More (The Law Store), Sarah Kennedy (NZ Police), Sarah McKenzie (Crown Law)

Karen Mace (Minter Ellison Rudd Watts), Gina Butson (Treasury), Lucy Elwood (Elwood Law)

Sarah Farquhar (Chapman Tripp), Susanna Dobson (Chapman Tripp), Anna Fenton (Treasury), Jenny Hogue (Treasury), Laura Ashworth (Chapman Trip)

Heather McKinnon (Zindels - Nelson), Antoinette Besier (Fletcher Vautier Moore)

Joanna Holden (Crown Law), Andrea Coop (Brandons)

Ana Baide (Commerce Commission), Nikki Fisher (Duncan Cotterill)

Wendy Smith (Chorus), Marette Morrissey (Commerce Commission)

Katherine Sharp (DLA Phillips Fox), Helen Sims (Crown Law)

Miriam Dean (QC), Nerissa Barber (Ministry of Culture and Heritage)

Samantha Gain (DLA Philips Fox), Johanna Drayton (Dryberg, Drayton employment law)

Megan Bonetti (Simpson Grierson), Maureen Shaddick (Genesis Energy), Elizabeth Welson (Simpson Grierson), Karen Harvey

Jenny Beale (Ministry of Transport), Karen Feint (Barrister), Nancy Watters (Wellington Women Lawyers Association)

Walking the Talk Seminar

Judith Harper (Duncan Cotterill), Rachael Brown (Bell Gully)

Olivia Eaton (MAF), Amanda Barclay (MSD)

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NZBA Sponsors Sentencing Advocacy Competition The New Zealand Bar Assocation was happy once again to sponsor the High Court Sentencing Competition, which took place over three nights in March this year. The competition is now in its fifth year and involves competitors from the law faculties of the University of Auckland, the University of Waikato and, for the first time this year, Auckland University of Technology.

Some twenty-five competitors participated in the first round, with students assigned to argue the case either for the prosecution or for the defence in a fictional sentencing scenario involving a retired engineer who had been cultivating cannabis. The second round involved eight participants making submissions before High Court judges on a violent assault.

Mr Wong submitting

The final of the competition took place on Monday 26 March in Courtroom 1 of the Auckland High Court. With Justices Courtney and Ellis presiding, the finalists, Nicholas Dobbs and Lee Lon Wong (both of the University of Auckland) presented their submissions on the fate of a young woman who had admitted trying to procure the murder of a sporting rival. Both finalists responded excellently to the challenging facts of the scenario and to questions from the judges. After some deliberation and, having praised both finalists for the high standard of advocacy they had displayed, the judges declared Mr Dobbs, who appeared for the prosecution, the winner of the Sentencing Competition 2012.

The organisers gratefully recognise the support of the NZBA, which provided the prizes and whose president Miriam Dean QC attended the final, and the Ministry of Justice.

Auckland High Court

Lee Lon Wong, Justice Ellis, Justice Courtney, Nicholas Dobbs

Mr Wong submitting

Mr Dobbs submitting

New Members of the New Zealand Bar Association The New Zealand Bar Association is very pleased to welcome the following new members who have joined the Association since March 2012: Mr Rowan Butler Mrs Helen Gilbert Mr Stephen Layburn Mr John McLeay Ms Jane Meares

Auckland Auckland Auckland Hamilton Wellington

Ms Karen Monet Mrs Karen Radich Ms Moana Sinclair Ms Catherine Stewart Mr Stephen Taylor

Auckland Wellington Wellington Auckland Wellington

The Association is also delighted to welcome all Parliamentary Counsel and Public Defence Service lawyers as associate members of the Association.

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Contact Emily Morrow, BA, JD | www.emilymorrow.com | Email: pelmorrow@me.com

NZBA Seminar Tricks of the Trade - Civil The New Zealand Bar Association’s Tricks of the Trade – Civil seminar was held in Auckland on 22 May. The seminar dealt with advocacy in the civil context from the perspective of the Bench, the Bar and experts. It was chaired by the Hon. Sir Ian Barker and Justice Toogood provided expert commentary. Other speakers included John Katz QC, Gillian Coumbe, Kate Davenport and Barry Jordan of Deloitte.

Topics discussed included being an effective oral advocate, what judges want in advocates, ethical issues, tips for junior counsel, the use of visual aids, answering questions from the Bench, briefing expert evidence and calculation of damages.

Sir Ian Barker, Barry Jordan, Gillian Coumbe, Tim Herbert and Peter Davey

The seminar will be repeated in Wellington on 13 June with a focus on criminal advocacy. That seminar will be chaired by Hon. Justice Ronald Young and speakers will include Judge Bruce Davidson, Robert Lithgow QC, Cameron Madner, Grant Burston, Sandy Baigent and Michele Wilkinson-Smith. Issues to be discussed will be strategic approaches to the conduct of a criminal trial, whether or not there is a place for humour in the courtroom, how to deal with judges who appear to be against counsel, cross-examination strategies and successful re-examination.

Simon Judd and Peter Davey

John Katz QC and Marian Hinde

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Since the renewal of the New Zealand Bar Association liability programme, Marsh has seen an influx of new members taking out cover, with members growing in excess of 10 per cent since 1 December 2011. The fact that the liability market is continuing to see some lack of appetite towards some professions, such as architects and lawyers, demonstrates the importance of being part of a larger placement to the market where the benefit of leverage can be exercised.

Marsh has been managing and advising on claims requirements for lawyers for over 40 years. Over the past 15 years, there has been little change in the most costly and most commonly-notified claims.

However, recently we have seen a marked increase in the number of claims associated with the commercial conveyances of Blue Chip properties. In the past five years these claims made up around 25 per cent of the total value in solicitors’ claims to the market on their own.

This followed a decision in Bartle v. GE Custodians & Anor, where the threshold for solicitors’ liability was clarified as being substantially lower than previously understood.

What Should be Notified Across the wider professions, we have seen an increase in the number of notifications that have been made long after our clients should reasonably have been aware that there was a problem.

Notifying late can minimise, and sometimes completely eliminate, any policy coverage available to you. If you experience any of the following situations, or any others that may result in an allegation or claim being brought, speak with your broker as soon as possible: • An investigation by or complaint to the Law Society, or any other regulatory or statutory body • An intimation by a third party (whether expressed or implied) of their intention to bring a claim against you or your firm • A criticism of performance where it may give rise to a loss • Awareness of a service or action provided which may fail to meet the standards required, even if the potential claimant is unaware of the shortcomings (e.g. an error or mistake of which you become aware).

It is important to note that under most liability placement for barristers there is cover for quasi-judicial costs. Those relate to the investigation and defence of complaints by “any statutory or professional body which claims jurisdiction to inquire or adjudicate in any such matter”.

Emerging Issues Section 9 Charges In September 2011, the High Court held in Steigrad v BFSL 2007 Ltd (Steigrad) that, where an insurer is aware of a claim for a sum greater than the limit of indemnity, any payments it makes towards directors’ defence costs under a directors’ and officers’ liability (D&O) policy do not reduce the sum subject to the section 9 charge. Any payments by the insurer will effectively be made as a volunteer and it will still remain liable to pay the full indemnity sum to the third party claimants.

The majority of the New Zealand insurance market has now provided a D&O defence costs-only solution and Marsh clients are electing to review coverage, increase their policy limits and/ or implement these options.The Steigrad decision is under appeal.

Additionally, the former directors of Feltex Carpets Limited have issued proceedings seeking declarations as to their own insurance

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position and effectively asking the Court of Appeal to reverse Steigrad.

There continues to be mixed legal opinion on whether the ruling will be fully, partially or totally overturned. Obviously, the case could be further appealed to the Supreme Court as well.

Marsh recommends the following course of action: • Complete a ‘back to basics’ review of risk exposures, following your risk profile review • Assess the financial impact of these risks • Complete with Marsh an insurance coverage gap analysis • Monitor section 9 activity • Implement an insurance solution or accept the risks of not doing so.

Cyber risks – Are you paying attention?

A survey of the Forbes Global 2000 list in February has shown that corporate boards and senior executives are not paying enough attention to cyber risks.The survey, conducted by Carnegie Mellon CyLab, found that less than one-third of the respondents’ boards undertook basic responsibilities for cyber governance and 58 per cent of boards were not reviewing their companies’ insurance coverage for cyber risks.

This fact is quite interesting given that businesses surveyed by Marsh in its 2010 Biennial Survey of Risk rated loss of data, data corruption or failure of systems security and website security (e.g. hackers) as the third highest risk in New Zealand after natural disaster-related risks.The New Zealand Government is taking the increasing cyber and privacy threat very seriously. In June 2011, it presented its cyber security strategy, which is to be headed by the Ministry of Economic Development. As part of this strategy, the Privacy Commissioner has completed a review of the Privacy Act and 136 recommendations have been made. A key recommendation that has been gaining support is the compulsory reporting of serious breaches, (which is already the case in many other countries around the world). Other recommendations include new powers for the Privacy Commissioner, e.g. the power to issue a compliance notice to an entity or individual, binding them to comply or face penalties. Also, requiring an audit to be completed of an entity or individuals privacy practices. The report has been tabled in Parliament and is still to be considered by the Government before any amendments to the law are made.

Can insurance help?

Whilst the cyber and privacy threat is exploding, traditional insurance policies were written / developed long before the evolution of these risks. Consequently, these risks do not fit neatly within existing policy definitions and exclusions and just adding a cyber or internet liability extension to an existing policy is not always a complete fix. Insurers are now also attempting to limit their liability for cyber and privacy risks by incorporating additional exclusions, as they do not want to expose themselves to risks they did not intend to cover originally.

It is therefore recommended that you talk to your adviser to ensure that your insurance policies provide sufficient coverage for the needs of your business. The Carnegie Mellon CyLab survey report recommends that organisations should ensure that they have regular information flows to senior management on privacy and security risks, including cyber incidents and breaches. *To discuss any of these aspects or your current insurance coverage, talk to the New Zeland Bar Association team, Clinton Stanger or Mark Rogers, at Marsh on 0800 627 744.

Upcoming Events and Recent NZBA News Upcoming events include: Tricks of the Trade (Criminal) – Wellington – Wednesday 13 June

The seminar will be presented by Hon Justice Ronald Young, Judge Bruce Davidson, Robert Lithgow QC, Cameron Mander, Grant Burston, Sandy Baigent and Michele Wilkinson-Smith. Additional information and registration are available via the NZBA website.

Bench and Bar Dinner – Thursday 19 July

The annual Bench and Bar Dinner will be held in Auckland on Thursday 19 July and Minister of Justice, Hon Judith Collins, will be our guest speaker (provided she can obtain Leave from the House). Additional information and registration are available via the NZBA website.

Conference – 24-26 August

The annual conference will be held at the Grand Hyatt in Melbourne, with the conference opening function at the Victorian Supreme Court Library, on 24-26 August 2012. The programme has been confirmed with speakers from both New Zealand and Australia. More details and registration are available on the NZBA website.

Walking the Talk - Part Two

NZBA and AMINZ will co-host a follow up seminar from the very successful Walking the Talk seminar held in Auckland and Wellington with seminars in Wellington on Tuesday 6 November and in Auckland on Thursday 8 November. The keynote speaker is Lucy Reed, who is co-head of the Freshfields Bruckhaus Deringer global international arbitration group. More information will be available shortly.

Submission Judicature Act review

Sir Grant Hammond attended the April 2012 Council meeting and provided assistance to the Council regarding the items on which the Law Commission was seeking particular feedback from the NZBA. A comprehensive submission on the Judicature Act review was undertaken by a team including:

Tim Castle

Gillian Coumbe

Miriam Dean CNZM QC

Clive Elliott

Elliot Hudson

Peter McKenzie QC

Stephen Mills QC

Daniel Pannett

Michael Webb The submission was provided to the Law Commission in May.

District Court Rules Review

NZBA Council members were attending most of the District Court Rules Review meetings being held around the country in May.

Meetings with Ministry of Justice Legal Aid

We have been engaging with Ministry of Justice representatives at all levels, and with representatives of the New Zealand Law Society and Criminal Bar Association, on the issues surrounding the fixed fee legal aid scheme, disbursements policy and the legal aid provider contract.

These discussions are ongoing and in more recent times have involved Miriam Dean QC, Stuart Grieve QC, Paul Mabey QC, and Vivienne Crawshaw as well as the Executive Director.

Current issues for the Profession

Andrew Bridgman, the Secretary for Justice, met with the Council in April. A number of issues were raised by the Council including, its serious concerns as to the lack of any appointments of senior counsel for almost four years and the impact this is having on the Bar. The Secretary agreed to take this up with the Minister. The current legal aid changes and how the problems which have been identified by the profession with the fixed fees legal aid regime can be addressed, was also the subject of discussion. The Council was delighted that the Secretary stayed on for lunch and is keen to engage regularly with the Association as well as the wider profession .

CBA – its Litigation Against the Ministry of Justice

After careful consideration, both the Criminal Committee (by majority) and the Council (unanimously), decided not to assist the CBA which had requested assistance from both the New Zealand Law Society (which declined) and the New Zealand Bar Association, to help fund its litigation against the Ministry. As the CBA has been advised, this reflects a very clear view that litigation is not the appropriate strategy going forward and reform is more likely by working co-operatively with the Ministry to try and achieve change where possible. In recent times the NZBA has met with the Secretary for Justice to address some of the other issues arising and he has agreed to take up some of the issues we have raised.

Membership

We have a significant number of unpaid membership subscriptions (with over 350 still unpaid as at 22 May) and encourage you to pay these now as they are overdue.

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Obituary Sir Rodney Gallen - Law and Maori Key for Retired High Court Judge Retired High Court Judge, Justice Rodney Gallen’s, strong commitments to both the law and to Maori have been recognised in the tributes paid following his death on 3 March 2012. His casket was adorned with both a judge’s wig and a korowai, to mark the two cultures that meant so much to him.

Sir Rodney was born in Wellington and grew up in Hawke’s Bay and the East Coast. He was the son of a postmaster and attended Waipawa District High School and Napier Boys’ High School. At an early age, he developed close ties with Maori organisations. He maintained those links until the end of his life. Sir Rodney was admitted to the Bar in 1953 following his graduation from Victoria University. He became a Queen’s Counsel in 1978 and was appointed to the High Court Bench in 1983. He retired in 1999 and was awarded a knighthood in 2000 for his services as a High Court Judge. He subsequently sat on the Fijian Court of Appeal and was in Fiji when the May 2000 coup occurred, resulting in a hasty departure from the country.

Sir Rodney Gallen

Sir Rodney presided over some of the most significant inquiries in New Zealand, including the Commission of Inquiry into the Abbotsford landslip disaster, the 1983 Committee of Inquiry into Procedures at Oakley Hospital, a 2000 review of the Police Complaints Authority and the resolution of abuse complaints by former Lake Alice Hospital patients. In 2001, a report he wrote for the Ministry of Education recommended that there be a tripartite agreement between the ministry, Te Puni Kokiri and the Kohanga Reo Trust to ensure that all organisations worked to support the kohanga kaupapa.

Sir Rodney was fluent in te reo, which he had learned when his father was postmaster at Tokomaru Bay. He headed the judiciary’s cultural education committee, aiming to increase awareness of Maori and law. His knowledge of Maori language and culture was valued by the judiciary. Sir Rodney worked with Ngai Tuhoe to keep ownership of Lake Waikaremoana in Maori hands and served for many years on the Mahi Tahi trust. The trust assists Maori prisoners by immersing them in traditional cultural values. Sir Rodney wrote a history of Waikaremoana.

Chief Justice Dame Sian Elias described Sir Rodney in 2000, at the time he received his knighthood, as a man of compassion who worked tirelessly for others and was deeply committed to the rehabilitation of Maori prisoners. Former colleague, Justice Lowell Goddard, described Sir Rodney at the same time as a man of great mana who had made a huge contribution, not only as a judge but as a member

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of society. She said that he had enormous faith in human nature and always saw the potential in people regardless of their backgrounds or circumstances. He was at the hub of an extended family and regarded as a father to the children he met through the Hillsbrook Children’s Home.

Sir Rodney was accorded a haka as he was carried from the Lindisfarne College Chapel at the end of a funeral service which his local newspaper described as “celebrating a judge who didn’t like judging.” High Court Judge and former Chief Judge of the Maori Land Court, Justice Joe Williams, delivered one of the tributes at the service, which was attended by approximately 800 people. Justice Williams said that Sir Rodney had not liked prisons, yet he had visited them so that he would understand the conditions to be faced by the people he sentenced.

Former Court of Appeal President, Sir Owen Woodhouse, said that he had first met Sir Rodney in 1958, when the latter had returned to Napier after completing his law degree. Both men were pupils of Napier Boys’ High School. Sir Owen said that Sir Rodney had, from the outset, demonstrated that he had an unusually mature grasp of problems.

“It made him a sought-after lawyer and eventually a senior barrister with the rank of QC. It took him as well to London, where he argued successfully an appeal before what was then our final court of appeal, the Privy Council.”

The principal of Iona College in Hawke’s Bay, Pauline Duthie, said that Sir Rodney had been a significant member of the community. He was known among his peers not only as a wise and humanitarian senior jurist but also as a man who “walked the talk.” He had shown great compassion for fellow human beings and was deeply committed to the environment, youth and family. Ms Duthie said that Sir Rodney had been a member of the Iona College Council and had also been one of the school’s three trustees. He had been particularly proud of his association with the Te Whaiti scholarship which allowed students to attend Lindisfarne College or Turakina Girls’ School. The Sir Rodney Gallen Trophy at Lindisfarne College is presented for services to kapa haka.

Ms Duthie said that Sir Rodney had loved the land and was a great conservationist. He had spent much time in the wilderness of Lake Waikaremoana and the Urewera Forest Park. He had also been renowned as a talented musician and it was through his efforts that Iona College had secured an organ and piano for its chapel. Ms Duthie said that Sir Rodney had enjoyed his extensive Hawke’s Bay garden and had been kept company by his Norwegian elk hounds. He was a long-time leader of the Presbyterian Church and played a prominent role in the church’s general assembly joint committee with the Maori Synod, Te Aka Puaho.

Obituary John Haigh QC - Legal World Mourns Sudden Passing of Top Barrister The legal world was shocked and greatly saddened by news of the sudden death of highly-respected Queen’s Counsel, John Haigh, in April. New Zealand Bar Association President, Miriam Dean CNZM QC, said that Mr Haigh had been one of the profession’s “gentlemen” and had been both respected and popular among his peers. That had been quite apart from his reputation as one of the country’s leading silks in both criminal and employment law.

John Haigh QC

Queen’s Counsel Paul Davison said that he and “Jaigh” had enjoyed a long association and friendship extending back well over 30 years. After the two had worked together on a number of cases, Mr Davison had joined Mr Haigh in Chambers in the Southern Cross Building. They had later established Princes’ Chambers together.

“Jaigh certainly possessed the qualities, attributes and skills that made him a superbly effective advocate. He worked exceptionally hard and what was presented in court was the product and result of long hours spent in careful preparation. He had a wonderful sense of humour characterised by an acerbic and, indeed, wicked wit.

He had much material to work with by reason of his extensive and sometimes colourful clientele and their often notorious cases. No-one was immune, be they clients, witnesses, professional colleagues or judges.”

Mr Davison said that, although a calm and composed exterior was maintained in court, there were often hilarious sub-plots being played out by Mr Haigh.

“Sitting beside him in court was itself often something of a challenge to maintain one’s own composure in the face of his “private” (but hardly inaudible) comments and observations. It was this wonderful sense of humour that was no doubt his release valve and coping mechanism for the intense pressure of work that he operated [under]throughout the entire time I was in Chambers with him, and as I observed thereafter.”

Mr Davison said that Mr Haigh had been genuinely and sincerely interested in people and had responded with humanity and understanding when dealing with those involved in his cases.

“He justifiably commanded enormous respect from judges, colleagues and clients. Jaigh had a rare combination of raw, robust forensic ability and subtle, well-honed skills that he employed so effectively, especially in the courtroom. His extensive network of friends is itself testament to his ability to connect with others, resulting in many lifelong and enduring friendships. His sudden death has come as an awful shock to us all. We will miss him but we will never forget our respected and much-loved friend.”

NZBA’s Criminal Law Committee chair, Queen’s Counsel Stuart Grieve, said that Mr Haigh had been the consummate professional. “[He was a] barrister who adhered to the highest standards of the Bar in terms of hard work, knowledge of the law in his specialist fields and sound judgment. He was respected and admired by his colleagues and loved by many of us as a much valued friend.”

Mr Grieve said that he had become acquainted with Mr Haigh in 1967, when he was a prosecutor and Mr Haigh was a defence lawyer. The men had later become friends at the time they were both applying to be appointed as Queen’s Counsel, when they had shared angst about when their turns for appointment would arrive. In 2011, Mr Grieve moved his Chambers on to the same floor as those of Mr Haigh. The pair accordingly saw a lot more of each other, regularly popping into each other’s offices for discussions.

Mr Grieve said that Mr Haigh’s great talent had been his humanity. There were many barristers who were technically competent but lacked a human side but Mr Haigh had been endowed with that quality. In that regard, said Mr Grieve, Mr Haigh had been like the late Kevin Ryan QC. Mr Grieve said that Mr Haigh had enjoyed great jury appeal. He had had the ability to relate both to judges and to juries and to get them on his side.

He had also had great wit and had been a significant friend in the law.

Mr Haigh was born and raised in Auckland and studied at the University of Auckland. He followed in his father’s footsteps in choosing a legal career. Frank Haigh was a lawyer who acted for trade unions, including at the time of the 1951 waterfront strikes. Mr Haigh senior also participated in protests against the 1960 All Black tour to South Africa, with his son marching alongside him in demonstrations.

Mr Haigh went to the Bar in 1984 and was appointed a Queen’s Counsel in 1993. His specialties were criminal and employment law, with him being the first New Zealand silk to specialise in employment law. Like his father before him, Mr Haigh acted for numerous unions. He appeared at a number of Royal Commissions and Commissions of Inquiry, including the Parnell Fumes affair and the Marsden Point industrial disputes.

At the time of his death, Mr Haigh had been appearing at the Royal Commission on the Pike River Coal Mine Tragedy. He also acted for the Ports of Auckland in the ongoing, bitter industrial dispute over the contracting out of jobs on the Auckland waterfront. Mr Haigh had a high media and public profile throughout his legal career.

He acted for former Labour MP and Minister, David Benson-Pope, when he was investigated over claims that he had during his teaching career required a pupil to sit with a tennis ball in his mouth. Mr Haigh represented former assistant police commissioner Clint Rickards at his rape trial following allegations of historic sexual abuse by Louise Nicholas and the laying of charges.

In 2007, Mr Haigh acted for “Lion Man” Craig Busch in a high-profile case in which the latter pleaded guilty to two charges of assaulting his partner.

In 2009, the Queen’s Counsel represented retired judge, Michael Lance, when the latter was charged with the wilful damage of a vehicle parked across the driveway of his apartment. Mr Lance was acquitted following a defended hearing in 2010.

Mr Haigh had extensive experience at all levels of the New Zealand court system, as well as four appearances at the Privy Council in London. He was an animal lover, giving time to serve on the SPCA’s Pro Bono Prosecution Panel and speaking in 2011 in a panel debate at the New Zealand Companion Animal Conference about improving animal welfare laws.

He and his wife both participated in yoga and Mr Haigh also enjoyed classical music and whiskey.

Mr Haigh and his wife attended a Criminal Bar Association dinner on March 30 to help raise funds for Canterbury lawyers.

Mr Haigh, 65, died suddenly on April 22 after suffering a massive brain haemorrhage on April 21.

He is survived by his wife, Susan, and two adult children.

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NZBA’s 2012 Conference to be Held in Melbourne Theme is Leading a Successful Team The New Zealand Bar Association’s annual conference will be held in Melbourne from Friday 24 August to Sunday 26 August 2012. The conference theme will be leading a successful team, with a focus on the role of experts. The keynote speaker will be former Federal Court of Australia judge, Justice Raymond Finkelstein QC. Mr Finkelstein was a tutor at Monash University and a solicitor in Melbourne between 1971 and 1975, before being called to the Bar in 1975. His mother and father were Poles who came to Australia as stateless Jews in 1951. During his years at the Bar, Mr Finkelstein shared chambers with Ron Merkel QC and Alan Goldberg QC, who were also later appointed to the Bench. The fact that the trio had extensive experience in corporate law litigation made Melbourne a centre for such litigation, with 90 per cent of corporate cases in the Federal Court at one time being listed in the city.

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

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

Mr Finkelstein was renowned for encouraging lawyers to simplify cases and made rulings formulating new approaches to class actions, insolvency and competition law. He has been described as one of

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Australia’s most creative and inspired commercial judges. He presided over the civil hearing of prominent Australian businessman Steve Vizard, imposing a fine of $390,000 and a 10 year ban on holding company directorships by way of sentence.

Other speakers at the conference will include High Court Judge and Rules Committee chair, Justice John Fogarty, Environment Court Judge Craig Thompson, Commerce Commission chair Dr Mark Berry and forensic science consultant and director of The Forensic Group, Dr Anna Sandiford. Economist Dr Philip Williams will offer a trans-Tasman perspective and Queen’s Counsel Helen Cull will address regulatory issues from counsel’s perspective.

New Zealand’s Acting Chief Parliamentary Counsel, Bill Moore, will address opportunities and traps relating to rewriting the law. Victorian Chief Parliamentary Counsel, Gemma Moore, will examine assumptions and accessibility in the context of the drafting of legislation.

That will be followed by an advocates’ perspective presented by three Queen’s Counsel - Alan Galbraith, David Shavin and John Burrows.

Financial expert, Barry Jordan from Deloitte, will discuss the use of financial experts, while barrister Paul David will speak about issues relating to the assessment of damages. The after dinner speakers at the conference will be New Zealand Chief High Court Judge, Justice Helen Winkelmann, and Justice Elizabeth Hollingworth of the Supreme Court of Victoria.

NZBA President to Speak on Future of Advocacy at World Bar Conference NZBA President, Miriam Dean CNZM QC, will deliver a speech at the biannual International Council of Advocates and Barristers’ Conference to be held in London between 29 June and 1 July 2012.

The theme for this year’s conference is “Advocacy, past, present and future – constant values for a modern Bar.” Ms Dean will deliver a paper titled The future of Advocacy in New Zealand during a conference session called The future of Advocacy. The session will be chaired by Richard Keen QC, the Dean of the Faculty of Advocates in Scotland.

Mr Keen is ranked as a “star individual” in commercial dispute resolution in Chambers UK 2012. The session will also be addressed by former Lord Justice of Appeal, Sir Stephen Sedley, who will speak about Modernising the appellate process. Sir Stephen has a keen interest in human rights and has been a long-time writer on legal issues for the London Review of Books. The other paper during that session will be delivered by Senior Counsel Russell Coleman, who will speak about The view from Hong Kong. Mr Coleman has a broad civil

NZBA President, Miriam Dean CNZM QC

and commercial practice and has served two terms as chairman of the Bar Council of the Hong Kong Bar Association.

The ICAB holds conferences in different cities every second year. The last meeting was in Sydney. The 2012 conference will include addresses by the Hon Robert Shenton French AC, Chief Justice of the High Court of Australia; the Rt Hon The Lord Judge, Lord Chief Justice of England and Wales; the Rt Hon The Lady Hale of Richmond DBE PC, Justice of the Supreme Court of England and Wales; Mr Justice Edwin Cameron, Justice of the South African Constitutional Court; Baroness Deech of Cumnor DBE, Chair of the Bar Standards Board; and the Honourable Tan Sri James Foong Cheng Yuen SMW DPMS, Judge of the Federal Court of Malaysia.

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

Those attending the conference will be able to tour the Rolls Building prior to the start of the formal sessions.

More information about the conference is available on the NZBA’s website – www.nzbar.org.nz

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NZBA Makes Submission on Review of Judicature Act The New Zealand Bar Association has provided a comprehensive, 57 page submission to the Law Commission on the latter’s paper Review of the Judicature Act – Towards a consolidated Courts Act. The submission was prepared by Tim Castle, Gillian Coumbe, Miriam Dean CNZM QC, Clive Elliott, Elliot Hudson, Peter McKenzie QC, Stephen Mills QC, Daniel Pannett, and Michael Webb.

The Association said that the Judicature Act 1908 was a critical piece of legislation in terms of the administration of justice and a review of its operation was timely. The submission said that many parts of the act had become redundant or outmoded and the Association supported the commission’s focus on reorganisation, consolidation and modernisation.

The NZBA said that it had focused its attention on the key issues of judicial specialisation, wasted costs and vexatious proceedings. The submission said that the Association strongly supported calls for the better allocation of scarce judicial resources generally and, more specifically, for greater judicial specialisation.

“We accept that informal and unseen specialisation may be occurring to some extent. However, the Association considers that the issue needs to be addressed in the open and that the process needs to be accelerated and formalised in the appropriate way. The Association strongly supports the introduction of specialist panels as canvassed by the commission. Panels of specialist judges may not be enough. This is because, first, procedures generally also need to be appropriate to deliver the most cost-effective outcomes. Those procedures will not necessarily be (and do not need to be) the same across all types of cases. Therefore, it may be that for New Zealand, divisions covering (for example) criminal, commercial and civil/ public should be introduced.”

The submission said that this was not intended to cut across the approach of having, to the extent applicable, uniform procedures across the New Zealand courts, including the High Court. Instead, within that approach, a division could have specific procedures to enable it to deal best with the types of matters routinely coming before it. For example, some of the procedures of the London Commercial Court or other international specialist courts might usefully be adopted.

The Association said that a panel system might not in itself be enough. Users – particularly commercial clients – wanted to know that they had a procedure suitably tailored for the efficient resolution of their particular dispute. The submission said that divisions would provide a framework within which panels could operate.

The NZBA said that it was clear from a survey conducted of its members that they did not favour retention of the commercial list. It would be preferable to introduce divisions and panels. The submission said that divisions and panels

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would also be preferable to the creation of a stand-alone commercial court within the High Court structure.

“This is because of the current case loads but also because the current court hierarchy and structure is sound and now well-established. Having divisions sitting within the one High Court also enables court administration and better use of resources across divisions, where it is most effective to do so.”

The submission said that the introduction of divisions and panels should permit a greater degree of specialisation in the High Court, both in terms of judges and procedures, without at the same time producing insularity, loss of flexibility or a small number of judges unduly dominating a particular area of law. Further, the introduction of divisions and panels should not reduce the ability of the court to attract high-calibre judicial appointees.

The Association suggested that judges should be able to be appointed to more than one panel, with each panel comprising a sufficient number of judges to enable concerns about insularity, loss of flexibility and the perceived negative impact of a small number of judges dominating a particular area of law to be addressed.

The panels should at the outset have self-selection as an important element, with recognition of what panel membership would entail.

The submission said that implementation of these changes would help to facilitate the development of New Zealand as a leading jurisdiction in which internationallybased disputes in specialist areas could be determined and resolved. A statutory framework under which judicial and non-judicial determinations could be provided – as was the case in the Middle East and Singapore – would be an important part of such an initiative.

In relation to wasted costs, the submission said that current limitations on the wasted costs jurisdiction of the High Court had not prevented the making or threatening of meritless wasted costs applications. Misuse by litigants of the wasted costs jurisdiction confirmed that it would be desirable to confine the ambit of the jurisdiction further, both in relation to barristers and to litigation solicitors.

The Association said that it was concerned that, since the 2002 Privy Council decision in Harley v McDonald, only three wasted costs orders had been made. Two of them had been against the same counsel. However, a review of the cases indicated that a large number of applications had been brought. The bringing of an application for a costs order against counsel personally was extremely prejudicial, even if the application ultimately failed. It was inevitably damaging to the counsel’s reputation and standing, potentially imposed a significant financial burden, and meant that insurers must be notified and a barrister must be retained to represent counsel.

The submission called for a fundamental revision of the wasted costs regime, stating that any new provision should further limit the wasted costs jurisdiction and replace – rather than supplement – the existing jurisdiction.

In relation to vexatious litigants, the submission said that there was little empirical data available about the extent and impact of vexatious claims. However, based on anecdotal evidence, the Association agreed that more effective powers to control such conduct were needed.

“Although the Association is mindful of the fundamental principle of freedom of access to the courts, that must be balanced against the desirability of protecting others from the harassment of unmeritorious litigation.

Such conduct imposes a heavy burden on the courts’ resources and on judges and court officials. Obsessive litigants can also cause enormous prejudice, including emotional distress and reputational and economic harm, to the parties they target.”

The submission supported giving much greater power, encouragement and support to control vexatious conduct. It said that measures proposed would

represent reasonable constraints. Offending litigants would not be banned altogether from litigating but a requirement to seek prior leave should be able to be imposed more readily and effectively. The Association said that its preferred option was to adopt a system of three graduated orders, similar to the system of “civil restraint orders” used in the United Kingdom and the “limited litigation” orders proposed for Victoria. A three stage graduated system would offer greater flexibility to intervene at an earlier stage and to choose an order appropriate to the particular person or parties as well as to the particular circumstances. Both the United Kingdom and the Victorian models allowed intervention as soon as a party had made two or more applications in a proceeding without merit.

“A graduated system would therefore enable the courts to constrain effectively all problem litigants – the litigant… who constantly brings applications and takes every point (but who may even have occasional success) as well as litigants in the truly vexatious category. The offending behaviour should be seen in terms of a continuum, meaning it is appropriate to have degrees of intervention permitted at different stages of that continuum.”

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Foreign Correspondent - News From Around the World ENGLAND AND WALES Television broadcasting of courts planned Courts in England and Wales would be more publicly accessible than ever before when television broadcasting was introduced, said Justice Secretary Kenneth Clarke. Plans to overturn the ban on filming and broadcasting from law courts were unveiled on 9 May 2012 as part of the Queen’s Speech. The changes have been incorporated into the Crime and Courts Bill announced on 10 May. Mr Clarke said that, once the legal reforms had been passed, broadcasting would be introduced initially in the Court of Appeal. Filming of opening and closing legal arguments by lawyers would be permitted, as would be filming of the handing down of judgments. The Government would later consider allowing filming at the Crown Court but that would involve only filming of judges’ sentencing remarks. No victims, witnesses, offenders or jurors would be filmed.

Mr Clarke said that the Government was bringing the concept of open justice into the modern age.

“People have always had the right to go to watch proceedings in courts but in reality very few actually use that right because it requires them to have enough spare time and the ability to travel. By allowing broadcasting from courts we are now enabling many members of the public to see, for the first time, court proceedings as they happen.”

Filming and broadcasting are currently banned under two statutes.

More mediation in civil justice system Justice Minister Jonathan Djanogly on 8 May launched a Justice for Business: Supporting Businesses and Promoting Growth paper to encourage businesses to use out-of-court methods of resolving disputes. Mr Djanogly said that the vital role that that justice system could play in helping businesses to flourish had not been adequately recognised in the past.

“Economic growth can only be achieved if businesses are free to trade and prosper and the justice system can help them to achieve that. By delivering lower legal costs, regulation that encourages investment and court processes which are faster, simpler and cheaper, the Government is overhauling the justice system so that business can get on with the job rather than getting bogged down in unnecessary litigation.”

The paper said that the Government had in October 2011 commenced legislation enabling the creation of Alternative Business Structures. Non-lawyers could now partially or fully own or control firms providing legal services and ABS could be funded by equity capital. By relaxing the historical restrictions on law firm structure and ownership, the paper said that the legal services market was being opened up to enable lawyers and other professionals to work together as single entities to deliver services in new and more innovative ways.

The document said that the Government was taking other steps to make the justice system more responsive to the public. A programme of work on civil litigation funding and costs was being taken forward. This would implement many of Lord Justice Jackson’s recommendations. Measures would include ending the recoverability of success fees for Conditional Fee Arrangements and after the event insurance premiums, as well as banning referral fees in personal injury claims. Those reforms would be implemented by the Legal

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Aid, Sentencing and Punishment of Offenders Act 2012, which had recently received the Royal Assent.

The paper said that the Ministry of Justice was working on implementing fees for employment tribunals. This would ensure that tribunals were able to focus on genuine claims, helping businesses to avoid unnecessary or unfair costs. Another planned change was measures to speed up processes involving small claims. The small claims limit would be doubled and in future more cases would be referred to a Small Claims Mediation Service, rather than having to go to a small claims hearing.

The ministry said that the county court system would be modernised and streamlined. The back-office process would be redesigned to ensure that cases were handled and outcomes were secured in a less burdensome way.

The Government in 2011 relaunched the Dispute Resolution Commitment, which encourages government departments and their agencies to commit to using ADR techniques before considering courts or tribunals.

New tool to tackle economic crime Plans for a new tool to tackle economic crime have been released for consultation by Solicitor General Edward Garnier QC and Justice Minister Crispin Blunt. Under Deferred Prosecution Agreements, companies would publicly agree to admit wrongdoing and would meet tough conditions such as payment of substantial penalties, the undertaking of internal reform and submitting to regular review and monitoring.

The process would be overseen by a judge and the threat of full prosecution would remain should a company fail to comply with an agreement. Mr Garnier said that, if companies could be encouraged to self-report and to come clean, pay penalties and mend their ways, the time and expense of investigations and prosecutions could be avoided.

“An important aim of any DPA system would be to allow investigators and prosecutors to focus resources on those cases where a prosecution is in the public interest – and there will always be some where it is the only option.”

Mr Blunt said that law enforcement agencies had told the Government that they did not have the tools they required to tackle increasingly-complex economic crimes.

“Investigations can take several years and cost millions of pounds, with no guarantee of success, which means victims wait far too long for reparation. Or indeed receive no payback at all. More clearly needs to be done. Deferred Prosecution Agreements will give prosecutors extra tools to tackle this type of crime and bring about a just outcome – which punishes the wrongdoer, ensures the surrendering of any proceeds and makes amends to victims.”

Brighton Declaration on ECHR Reform adopted The Brighton Declaration had been adopted by all 47 member states of the Council of Europe following talks in Brighton, said Justice Secretary Kenneth Clarke. Mr Clarke said that the changes represented a substantial package of reform and should mean that fewer cases would be considered by the European Court of Human Rights. Mr Clarke said that those cases dealt with by the court should involve allegations of serious violations or major points of interpretation of the European Convention on Human Rights. Fewer cases would mean that the delays currently experienced would be reduced.

“The court will not normally intervene where national courts

have clearly applied the Convention properly. These reforms strengthen the commitment of all member states to the obligations of the Convention and will improve the ability of the court to enforce these obligations sensibly.”

Mr Clarke said that the convention would be amended to include the principles of subsidiarity and the margin of appreciation; admissibility criteria would be tightened so that trivial cases could be thrown out and the court could focus on serious abuses; and the time limit for claims would be reduced from six months to four.

Hertfordshire’s first virtual court A new virtual court at Hatfield Remand Centre was enabling accused persons who had been charged in Watford’s police station to have their first hearings within hours of being charged, said Courts Minister Jonathan Djanogly. The same equipment had been used in the region to enable police officers to provide evidence at court from the police station, a process known as Live Links.

Mr Djanogly said that virtual courts would enable the speedy resolution of cases and would save time as defendants would not need to be transferred between prisons and courts. Virtual courts and Live Links were part of a wider policy to digitalise, streamline and make the criminal justice system more efficient. By the last quarter of 2012, the entire system would be required to go digital, including through the secure electronic transfer of case files between the police, prosecutors and the courts.

New laws to help diverse judiciary More women and people from minority backgrounds would be encouraged to become judges under plans announced

by Justice Secretary Kenneth Clarke in May. Mr Clarke said that new laws would be passed to remove the obstacles which could limit diversity in the judiciary. This would include changing the rules to extend part-time work patterns for senior judges, as a means of providing work-life balance. Mr Clarke said that “positive action” would also be permitted for appointments. This would mean that, if two candidates were completely equal in abilities, a selection could be made on the basis of improving diversity.

Mr Clarke said that the changes would not alter the overriding principle that appointments should be based on merit. However, they were intended to enable clearer career progression and to encourage applications from a wider talent pool.

“We are lucky in this country that we have the finest judiciary in the world. We intend to build on that – we will continue to recruit the very best judges but at the same time we will do what we can to encourage top applicants from a diverse range of backgrounds, so that the judiciary better reflects society.”

AUSTRALIA Victorian Bar Annual Pro Bono Awards Announced Victorian Attorney-General Robert Clark in May presented the annual Victorian Bar Pro Bono Awards, honouring 11 barristers who were among those who gave more than 40,000 hours of free legal assistance to some of the most disadvantaged communities in the past 12 months. Those assisted included people with disabilities, the homeless, asylum seekers, victims of elder abuse, and people who had been subjected to discrimination. Public interest cases included Occupy Melbourne, the “Malaysia Solution” High Court case, environmental causes and the application of Freedom of Information.

Victorian Bar chair, Melanie Sloss SC, said that the stories of the cases and people assisted by all of the nominees

demonstrated a wide range of real and lasting impacts on the lives of people in the community. Figures showed that the value of the hours of free service provided by Victorian barristers in the past 12 months totalled $A13.8 million. There was a 19 per cent increase in the hours committed to the Duty Barrister’s Scheme, which provided barristers for those who were unrepresented and appearing in court. The overall number of pro bono hours climbed by 15 per cent.

State Budget Still Short on Legal Aid Victorian Attorney-General Robert Clark has been urged by the Law Institute of Victoria and the Victorian Bar to increase legal aid funding to prevent a crisis in legal aid. The Institute and the Bar late last year called for $A35 million of additional funding. They said that $25 million of that was required to maintain current legal aid services, without the additional burden on the system created by the reforms introduced by the Baillieu Government’s election promises.

The Government in early May announced that it would provide an additional $26 million to legal aid each year for the next four years. The Institute and the Bar welcomed that announcement but said that they feared that the system would still be underfunded.

Law Institute of Victoria President, Michael Holcroft, said that the Government’s own law and order reforms, such as statutory minimum sentences and additional police, meant that demand for legal aid services would be stretched further than ever before.

Over 1900 barristers in Victoria A total of 31 new barristers has signed the Victorian Bar Roll following completion of the Bar Readers’ Course. Those readers take the total number of barristers on the Bar Roll in Victoria from 1875 to 1906. Victorian Bar chair, Melanie Sloss SC, said that the group of readers demonstrated the broad appeal of the Bar in Victoria to people who were interested in pursuing a career in advocacy and law. While most of the new barristers had come directly from the practising legal profession and a third had served as judicial associate, others had come from academia, television and events management.

UNITED STATES All states represented at ABA Day in Washington All 50 American states were for the first time represented at the 2012 American Bar Association Day in Washington DC. The day is the Association’s annual attempt to connect policy makers with their constituents in the legal profession. ABA representatives and representatives from local, territorial state and specialty Bar Associations speak to elected representatives about issues of importance to the profession, clients and the public at large.

ABA opposes elimination of Legal Services Corporation The American Bar Association said that the Republican Study Committee’s proposed fiscal year 2013 budget plan to eliminate the Legal Services Corporation ignored the overwhelming needs of struggling families for free legal advice and was remarkably short-sighted. The corporation deals with almost a million cases each year, including child custody matters, foreclosures and veterans’ claims.

“We cannot afford to make our courts even less accessible to the public. Rather than eliminating LSC, Congress should increase its investment in access to justice by appropriating $UA402 million for fiscal year 2013.”

Sources: www.justice.govt.uk; www.vicbar.com.au ; www.abanow.org

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

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