At the Bar June 2013

At The Bar June 2013

Sir Robert Chambers 1953 – 2013 Klissers reasserted Meet the new QCs

From the Executive Director INSIDE THIS ISSUE Pg 2 - From the Executive Director Pg 4 - Obituary: Justice Chambers Pg 6 - Klisser’s reasserted Pg 8 - Meet the QC’s Pg 10 - New members Pg 12 - Building enclosure experts Pg 14 - Product Review – LexisNexis Red Pg 16 - Book Review – Tomorrow’s Lawyers Pg 17 - E-discovery – 12 months on Pg 18 - Best practice for lawyers Pg 20 - OPSM Pg 21 - Telephone options Pg 22 -

Events – Sentencing Competition, Success Seminar, Beijing Delegation, Commerce and the Regulators Seminar and Bench and Bar Dinner

Pg 26 - Practice Alert – decisions from the LCRO

EDITORIAL COMMITTEE Clive Elliott QC - Chair Tel: +64 9 309 1769 Email: Elliott@shortlandchambers.co.nz Melissa Perkin Tel: +64 9 303 4515 Email: Melissa.perkin@nzbar.org.nz CONTRIBUTIONS & ADVERTISING: Jacqui Thompson Tel: +64 21 679 061 Email: jacqui.thompson@nzbar.org.nz DESIGN AND LAYOUT BY Kirsten McLeod Tel: +64 9 834 2224 NEW ZEALAND BAR ASSOCIATION Tel: +64 9 303 4515 Fax: +64 9 303 6516 Email: nzbar@nzbar.org.nz Web: www.nzbar.org.nz P O Box 631 Auckland 1140

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Judicial Appointments The Association would like to congratulate the following on their recent judicial appointments: Hon Justice Terence Arnold on his promotion to the Supreme Court bench; Justice Forrest Miller, who has been appointed as a Judge of the Court of Appeal; and Justice David Gendall and Justice Brendan Brown on their appointments to the High Court bench.

Annual Conference Registration for the NZBA Annual Conference is now open. Members are invited to register either by faxing or posting their registration form with payment or by using our online payment option via the NZBA website. We will be joined by the Solicitors-General from across Australasia at the conference.

Early bird pricing is available for registrations received and paid for before 5 July 2013.

The main conference theme is Efficient Justice and we will be joined by an impressive line-up of speakers.

Our conference venue is the newly renovated Heritage Hotel in Queenstown. We have a casual dinner function at the Botswana

Butchery and a formal dinner at the Stoneridge Vineyard near Lake Hayes. There is information on our website about side tours available to you whilst you are in Queenstown. We also have a qualified ski instructor, Stephen Lellman, who will be available to provide transport to and from Coronet Peak, give assistance with ski equipment and lift passes as well as accompany registrants, family and friends on the ski field.

More details about the venue and programme are included later in this newsletter.

Insurance update We are working with our Group Scheme broker, Marsh, on a new policy and set of best practice protocols to provide cover for cyber security and associated risks, which is gaining relevance because of the increased use of smart phone, tablet, laptop and cloud based computing. The policy, the terms of which are currently being discussed with Group Scheme underwriters AIG, is designed to cover risks of losing or having data stolen from any of your computer or smartphone equipment. I hope to be able to announce details of such cover in the next couple of months.

Junior Barrister representatives Following the departure overseas of our junior barrister representative Daniel Pannett, we have been joined on the NZBA Council by Matthew Smith from Wellington and Desley Horton in Auckland as junior barrister representatives. We are planning on social activities in Auckland, Wellington and Christchurch with details to be announced shortly.

Mentoring Programme Members are reminded that we have a mentoring programme in which members are encouraged to be involved. The aim of the programme is to provide a means for less experienced practitioners and members who are new to the Independent Bar and/or to the NZBA with an opportunity to receive valuable support and guidance in their professional development from a senior member of the NZBA. We seek additional senior members to offer their services to more junior members as mentors.

Junior members are similarly invited to request to be matched to a mentor.

Further information is available in the NZBA website, along with application forms and the guidelines under which the programme operates.

Meeting with American Bar Association Director of Rule of Law Initiative Several NZBA members met with Jennifer Rasmussen, Director, Asia & the Pacific, American Bar Association Rule of Law Initiative in Auckland in late May. Jennifer met with members for the purpose of exploring avenues for NZBA members to be engaged in human rights work in conjunction with the ABA’s Rule of Law Initiative. Members interested in knowing more about this work are invited to contact me.

the NZBA suggested version of the Rule with narrower exemptions than those proposed by NZLS.

At the NZLS Council meeting, NZBA President Stephen Mills QC explained the position of the NZBA and why it had reached the position it had with narrower exemptions proposed than those of the proposed NZLS exemptions and the reasons why the NZBA Council recommended not following the course of total abolition or an opt-in/opt-out regime.

A vote of the NZLS Council members, following a straw poll, confirmed there was neither majority support for total abolition of the Rule nor the voluntary opt in/opt out proposal.

NZLS and NZBA are working on finessing the scope of the exemptions with the aim of achieving agreement between the NZLS and NZBA prior to the October 2013 NZLS Council meeting when the matter will be voted on.

Film Screening – Beatrice Mtetwa, Zimbabwean Human Rights Lawyer We co-hosted with the New Zealand Law Society Auckland Branch, a very successful screening of a film by Boston film maker, Lorie Conway, on Beatrice Mtetwa, an internationally recognised Zimbabwean human rights lawyer. At the time of the screening, Ms Mtetwa had been imprisoned by Zimbabwean authorities for challenging an illegally conducted search conducted of the home of the legal advisor to Morgan Tsvangirai, Prime Minister of Zimbabwe. International pressure was applied to Zimbabwe and Ms Mtetwa was released after approximately 2 weeks in custody.

Beatrice Mtetwa

Current Submissions We are currently working on two submissions, being: •

•

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Intervention Rule – this is being attended to by the Intervention Rule Sub-Committee; and Contempt of Court – Law Commission

Consultation

The Intervention Rule proposals were discussed at the last New Zealand Law Society Council meeting in April 2013.

There were four options being considered by the NZLS Council, being: • total abolition • an opt-in/opt-out regime • the NZLS suggested version of the Rule with

extended exemptions

We are co-hosting another screening of the film in Wellington on Tuesday 9 July. The film will be introduced by Ben Paradza, a former Zimbabwean High Court Judge, who will answer questions from the audience after the film. The event will commence at 5.30pm for pre-screening drinks with the film starting at 6.00pm at The Paramount Cinema in Courtney Place.

Ticket information is available on the NZBA website and will be sent to NZBA members via email update.

Subscription payment reminder A reminder to members who have not yet made their annual subscription payments to do so as these are now overdue.

Melissa Perkin

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Loved for his humour and honoured for his brilliance Sir Robert Stanley Chambers KNZM, QC 1953-2013

By Colin Taylor A remarkable feature about the Auckland Town Hall memorial service for the late Sir Robert Stanley Chambers KNZM, QC, was the number of times the word “fun” was used.

Somehow one does not normally associate the word “fun” with the persona of an eminent Supreme Court judge and lawyer.

Sir Robert Chambers

“Fun” was even used in a moving statement from Sir Robert’s grieving widow read to more than 1000 people in attendance on Monday May 27.

Lady Deborah Chambers QC (nee Hollings) asked Robert Fisher QC to read her statement on behalf of family members who were “so wretched at the loss of Rob” they were unable speak.

Lady Deborah said that writing the statement was the hardest thing she had ever done. “We had an extraordinary life for 13 years. To his core Rob was a fundamentally good man. He was funny, kind, clever and loving. He was glorious to live with - always so supportive; always making me laugh. We had so much fun.”

One of the most poignant moments during the service was the reading of a brief auto-biographical eulogy composed

by Sir Robert himself during a light-hearted moment with Lady Chambers’ daughter, Zelda Hollings.

Mr Fisher, who had to pause to compose himself during his reading of Lady Chambers’ statement, recited: “In 2007 Rob and Zelda had a series of silly jokes about what she would say about him at his funeral – you know – when she was about 65. So Rob gave her a list of what Zelda could say about him and this is what he wrote: 1. He was always sensible.

2. He set very clear boundaries for us.

3. He gave us space when I needed it.

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4. He was always there for me.

5. He was good at new beginnings and taught us how to do it.

6. We had lots of laughs.”

Rather sadly, “fun” was also a feature of Sir Robert’s eulogy delivered at the memorial service of his friend Dr Roger Fenton less than a year earlier on June 11, 2012.

“I particularly want to acknowledge the presence of the Chief Justice Dame Sian Elias, Justices John Priestley and Ailsa Duffy, Chief Judge Graeme Colgan, and retired Judges Bob Fisher QC and Peter Salmon QC,” said Sir Robert. “I single them out because all of us were chambers colleagues of Roger’s in Southern Cross Chambers. We had a lot of fun at Southern Cross Chambers.”

Dame Sian, in her eulogy at Sir Robert’s service said: “He was the sunniest person imaginable. Back in New Zealand after Oxford and going to the Bar in February 1981 … he joined David Baragwanath and Bob Fisher in a small space adjacent to their suite. Very much to my good fortune there was a tiny office in Robert’s space which I took over in March 1981 when I decided there was a life after maternity. With small gaps, Robert and I have been together ever since. In 1981 or 1982 I have a distinct recollection of him dictating in relation to an affidavit and hearing him many times refer very loudly to one ‘Sir Robert’. I always thought that title seemed to Rob, one that went very well with his name. It certainly rolled from his tongue with evident satisfaction.”

Dame Sian said that her time at Southern Cross Chambers “was I think, the happiest time of my professional life. With colleagues of the calibre of David, Bob and Robert the law was exciting and fun.”

In 2012, after Sir Robert had been appointed to the Supreme Court – “a position I thought he was born for”- he became a sought-after and “the best” afterdinner public speaker in New Zealand. “He was very funny indeed and loved highlighting idiosyncrasies. He worked really hard at his speeches finding out all sorts of useful, or useless, bits of information”. I found in his papers a list of what he had labelled, quite politically incorrectly: A Dictionary of Irish Medical Terms. He had labelled ‘fibula – a small lie’; and ‘pap smear – a fatherhood test’. It included ‘enema’ which Robert defined as ‘not a friend’.

“I am sure there are no ‘enemas’ of Robert’s here today,” Dame Sian said.

and insatiable appetite for good natured teasing that we will miss the most,” Mr Moore said.

“Apart from his legal studies, he loved Oxford because of its oddities like hosting a May Ball that was always held in June; and “New College” which he attended, clearly having been ‘new’ at one time – but that was about 800 years ago.”

Supreme Court Justice William Young said he had reached a “melancholy conclusion that the earlier eulogy by Dame Sian and tribute by Mr Moore were much like the Income Tax Act – they are very hard acts to follow.”

In his tribute Simon Moore QC said everyone in the legal profession knew how brilliant and talented Sir Robert was. “But what made Robert Chambers so special was his kindness, his humanity and irrepressible sense of fun.”

“...One of the things that made Rob such fun to be around was his wonderful turn of phrase...”

Referring to a long list of scholarships Sir Robert received at Kings College, Mr Moore said his research had “uncovered another much lesser known accomplishment – a dark secret which Robert hid from his friends no doubt with a wellfounded fear about how it might be used against him in later years. He played Mrs Hardcastle in the 1970 production of She Stoops to Conquer!

Justice Young said Sir Robert was “great fun when things were going well and staunch and empathetic in support of his friends when things were not so good. One of the things that made Rob such fun to be around was his wonderful turn of phrase - his great ability to make amusing comments about tasks in hand, people involved and very often their foibles.”

Sir Robert was knighted for services to the judiciary effective May 20 with Her Majesty’s approval being signified before he died on May 21.

** Colin Taylor is a veteran reporter who has written for both television and leading newspapers, and legal publications.

He regularly contributes to “At The Bar”.

“It is Rob’s sense of fun and acute nose for the ridiculous

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Klissers reasserted: NZ Tax Refunds v Brooks Homes

By Kevin Glover*

There are relatively few appellate court decisions in New Zealand relating to applications for interim injunctions. A recent Court of Appeal decision is one such case, and one in which the Court broadened the terms of an injunction granted in the High Court.

One of NZ Tax Refunds’ main competitors is My Refund. My Refund and its director, Mr Brooks, drew the ire of NZ Tax Refunds by using the trading name Tax Refund NZ and NZTax Refund, and by registering and using the domain names www.nz-taxrefund.co.nz and www.taxrefundnz.co.nz.

NZ Tax Refunds alleged that this amounted to passing off and a breach of the Fair Trading Act, and applied to the High Court for an interim injunction to prevent the defendants from using a number of domain names and trading names.

The well known test for the granting of an interim injunction, articulated by the Court of Appeal in Klissers Kevin Glover Farmhouse Bakeries Limited v Harvest Bakeries Limited [1985] 2 NZLR 129 (CA), addresses three questions:

The High Court ruled that the defendants should be prevented from using the domain www.nz-taxrefund.co.nz, but did not grant the interim injunction in relation to other combinations of the words “NZ”, “Tax” and “Refund”. In essence this was based on the Court’s assessment of a fair holding pattern pending full trial, balancing the interests of the parties.

(a) Is there a serious question to be tried?

The plaintiff appealed that decision in relation to the domain names where the interim injunction was not granted.

(b) Does the balance of convenience favour the granting of the interim injunction? (c) Stepping back, what is the overall justice of the case?

In broad terms, the first question looks at the merits of the underlying case and the second point looks at the relative impact of an interim injunction being granted or declined.

The Court then retains a discretion under the third head, including consideration of matters such as the conduct of the plaintiff. That third factor is the key difference between the Klissers test and the House of Lords’ test in American Cyanamid Co v Ethicon Limited [1975] AC 396, as it does not appear in the latter.

The Court of Appeal’s decision in NZ Tax Refunds Limited v Brooks Homes Limited [2013] NZCA 90 is notable for its discussion of the circumstances where the Court will review an injunction decision on appeal and its reiteration of the importance of the Klissers test.

NZ Tax Refunds v Brooks Homes The plaintiff, NZ Tax Refunds, provides online tax refund services. Clients provide tax information to service providers such as NZ Tax Refunds, and the service provider processes that information with the IRD through its online facilities. This involves the service provider acting as the client’s tax agent.

NZ Tax Refunds is the largest business in the field, having a market share of around 30%.

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Discretionary nature of interim injunction The Court of Appeal began by noting that the grant of an interim injunction involves the exercise of a discretion, which reduces the possible grounds of appeal to circumstances where the Judge: (a) has erred in law; (b) has taken account of an irrelevant matter; (c) has failed to take into account a relevant matter; or (d) is plainly wrong.

The Court also added, however, that “whether there is a serious question to be tried is an issue which calls for judicial evaluation rather than the exercise of a discretion”.

The Court of Appeal then approached the case on the basis that the High Court had declined some aspects of the interim injunction because there was not a serious question to be tried on the issue of whether the use of those domain names amounted to passing off or a breach of the Fair Trading Act. Since that did not involve the exercise of a discretion, the Court was able to revisit the issue on appeal.

Application of the Klissers test While the High Court’s judgment referred to the Klissers test and created a holding pattern which was intended to be fair

as between the parties, the Court of Appeal went back to the Klissers test. The Court found that there were in fact serious questions to be tried in relation to all of the domain names, and thus differed from the High Court.

The Court went on to find that the balance of convenience favoured the granting of an injunction in the terms sought and broadened the interim orders accordingly.

Comment The NZ Tax Refunds case is a reminder that the test for an interim injunction requires careful consideration of the Klissers factors in order to find a fair holding pattern until trial.

It is not a freestanding process aimed at finding the fairest possible holding pattern in the circumstances, largely because finding the “fairest” option is a subjective matter which would lead to a great deal of uncertainty.

That is undesirable, particularly given the cost involved in a plaintiff making the application and the fact that applications are, by definition, only made in serious and urgent cases.

subsequent English cases led to Justice Cooke stating that the Court should stand back and consider the overall justice of the case: Klissers at p 142.

The strength of the claim is perhaps best considered as relevant to the overall interests of justice rather than a serious question to be tried. Possible affirmative defences can also be relevant to the overall justice of the case but these tend to be given relatively little weight under the Klissers test.

The test in American Cyanamid was developed to avoid the need for mini-trials at the interim injunction stage… [but] arguments about the strength (or otherwise) of the plaintiff’s claim are still rehearsed at virtually every interim injunction hearing.

It could be said that the test for an interim injunction has an inherent bias in favour of plaintiffs, particularly regarding whether there is a serious question to be tried. The test in American Cyanamid was developed to avoid the need for mini-trials at the interim injunction stage, so that the application can be argued and decided promptly. For example, if a plaintiff raises a tenable claim and the defendant raises a defence there is still a serious question to be tried and the Court must proceed to consider the balance of convenience.

Where there is a serious question to be tried and the balance of convenience favours granting relief, the Court should issue an injunction. The Court’s assessment of the overall justice of the case provides a cross-check or safety valve for consideration of additional factors but, as is clear from the context of Justice Cooke’s comments in Klissers and the decision in the NZ Tax Refunds case, this is not the complete test in itself.

Kevin Glover practises as a barrister from Shortland Chambers in Auckland. He works in the area of civil and commercial disputes and specialises in intellectual property matters.

He writes regularly about case developments and legal issues on his blog, which can be found at www.iplawyer.co.nz.

Even so, arguments about the strength (or otherwise) of the plaintiff’s claim are still rehearsed at virtually every interim injunction hearing. This reflects the fact that the High Court has often found that the strength of a claim can be relevant to the issue of whether or not an injunction ought to issue. In reality, a Judge will be reluctant to restrain a defendant where a plaintiff’s case is perceived as arguable but weak (albeit that the serious question threshold has been met), bearing in mind the discretionary nature of the remedy.

Concerns about an overly mechanical application of the American Cyanamid test unduly favouring plaintiffs in

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Meet the New QCs...

The New Zealand Bar Association congratulates all of the newly appointed Queen’s Counsel.

Neil Campbell QC graduated LLB (Hons) from the University of Auckland and LLM from Cambridge University.

He joined the Auckland firm of Bell Gully Buddle Weir before pursuing an academic career in England and New Zealand, becoming Associate Professor at the University of Auckland.

He combined academia and the bar until 2008, when he left the University of Auckland to practise full time. He is a general civil litigator specialising in contract, property, company, securities and trust disputes.

David Chisholm QC graduated LLB from the University of Auckland and LLM from Queen Mary College in London. He worked overseas before returning to Auckland and was a litigation partner at Phillips Fox for three years and then Kensington Swan for seven years before becoming a barrister sole in 2001. He is a general commercial litigator specialising in corporate insolvency, intellectual property, property and commercial disputes.

Peter Churchman QC is a graduate of the Universities of Otago (LLB (Hons)) and Pennsylvania (LLM). He began his career at Invercargill firm French Sons Burt & Co before moving to Dunedin in 1982 and spending 15 years as a partner at Caudwells. During that time he spent a number of years as a part time law lecturer at the University of Otago and was also a member of the Crown Prosecution panel. He joined Kensington Swan as a partner in 2000.

Peter moved to the independent bar in 2005 and specializes in employment law and civil litigation.

Gillian Coumbe QC graduated from the University of Auckland in 1981 and joined Auckland law firm Russell McVeagh Bartleet &Co. She commenced practice as a barrister at the independent bar in 1993. Gillian has a wide-ranging practice in commercial and civil litigation, particularly in the fields of public law/judicial review, competition law, regulated industries and equity and trusts.

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Paul Dacre QC graduated from Auckland University and later joined Meredith Connell as a Crown Prosecutor. He is a former president of the Criminal Bar Association of New Zealand and council member of the Bar Association. He has practised as a Barrister Sole since 1988.

Paul has been the Pitcairn Island Public Defender since 2002 and is a member of the Crown Solictor’s Prosecution Panel.

He specialises in criminal law.

Kate Davenport QC has an M.Jur. (Distinction) from the University of Auckland. She worked in several Auckland firms and in London before joining the independent bar in 1990. Kate practices as a civil and commercial litigator specialising in disputes between private clients, contract, trust and tort litigation as well as property relationships and family protection and health matters. She is a member of a number of Disciplinary Tribunals and Review Boards. Kate is married and has 4 children aged between 23 and 8.

Matthew Dunning QC is a graduate of the Universities of Auckland (LLB) Hons and Oxford (BCL) and began his career as a judge’s clerk. He joined Russell McVeagh in 1986 becoming a partner in that firm in 1990 before joining the independent bar in 2004. Matthew is a general commercial litigator specialising in competition law.

Jonathan Eaton QC is a graduate of Canterbury University. Initially joining the Christchurch firm Cunningham Taylor before travelling overseas. Jonathan joined the independent bar in 1998 and established Bridgeside Chambers in 2006.

His specialist area of expertise is criminal law and evidence and he is a member of the NZ Armed Forces Courts Martial Panel.

Clive Elliott QC is a member of Shortland Chambers in Auckland. He is a former partner and head of litigation at Baldwins.

Clive is a patent attorney and arbitrator - Fellow of AMINZ. He is a Council member of the NZ Bar Association and the Auckland Branch of the NZ Law Society.

He is convenor of the Intellectual Property Committee of the NZLS. Clive is coauthor of the Lexis Nexis loose-leaf texts

Copyright and Design. Clive specialises in intellectual property and media law, employment law as well as general commercial work and arbitration.

Russell Fairbrother QC joined the then firm of Luckie Hain Kennard and Slater after graduating. He worked for 18 years as a sole practitioner in Napier before joining the independent bar in 1998.

From 2002 until 2008 he was a Member of Parliament. Russell specialises in criminal law and Maori customary rights

Richard Fowler QC graduated LLB (Hons) and commenced his career with JW Damer in Wellington. He joined Phillips Fox in 1979 becoming a partner in 1982. He joined the independent bar in 2011 and has a civil litigation practice specialising in local government, defamation, trust and estates. Richard also acts as chair of Special Tribunals on appointment by the Minister for the Environment.

Nathan Gedye QC graduated from the University of Auckland and began his career working in a number of Auckland firms before joining Bell Gully where he remained for 18 years, 16 of those as a partner. He joined the independent bar in 2004 where he specialises in commercial litigation and criminal law relating to finance companies.

Philip Hall QC graduated from Canterbury University joining the then Christchurch firm of McClelland Wood Mackay & McVeigh where he became a partner in 1974. He joined the independent bar in 1998 specialising in the areas of criminal law, defamation, relationship property, Tribunals and coronial inquests. Philip is Judge of the Court Martial of New Zealand.

Simon Jefferson QC graduated from the University of Auckland, spending a number of years working overseas before returning in 1981. He is enrolled as a solicitor in England and Wales.In New Zealand he joined Shieff Angland Lawyers where he spent 24 years, 21 of those as a partner. Simon joined the independent bar in 2006 and is a family law specialist. He has had extensive involvement with NZLS legal education programmes and the NZ Family Law section. He is a fellow of the International Academy of Matrimonial Lawyers, a member of Lawasia and of the Australian Family Law Section.

Frances Joychild QC is an LLM (Hons) graduate who has been at the independent bar for 12 years. She joined the Human Rights Commission in 1981 and was appointed a Law Commissioner for three years, returning to the independent bar in 2006. She is a specialist in general civil litigation and civil appellate work especially in the areas of human rights and public law litigation.

Graham Kohler QC graduated LLM from the University of Auckland and worked at a number of Auckland firms before joining the independent bar in 1987. He practices as a commercial litigator specialising in contract disputes, construction matters, defamation, land law and leases, estates and judicial review.

Daniel McLellan QC is a graduate of the University of Canterbury. He was admitted to the Bar in 1988. In 1993 he joined Heaney Jones as a partner and from 1996 until 2004 he was a partner of Jones Fee. Daniel went to the independent bar in 2004 when he joined Shortland Chambers. He specialises in defamation and media law, insurance and other commercial litigation.

Christine Meechan QC is a graduate of Canterbury University. Admitted in 1985, she worked for the Auckland firm of Heaney, Jones & Mason before joining Bell Gully Buddle Weir. She was a partner in this firm from 1995 – 2008 and was involved in a wide range of commercial litigation. She joined Bankside Chambers in 2008 and specialises in the areas of insurance, construction and employment disputes.

Matthew Muir QC is a graduate of the Universities of Auckland (LLB (Hons) and Virginia (LLM)). He first joined Auckland firm Holmden Horrocks, becoming a partner in 1985 and spent seven years as a partner at Buddle Findlay. He joined the independent bar in 1995 and practices in the areas of banking, commercial, insurance and aviation law.

John Pike QC graduated LLM (Hons) from the University of Canterbury commencing his career at the Department of Justice as Legal Adviser. He joined the Crown Law Office in 1987 as Crown Counsel and was appointed Deputy Solicitor-General in 2006 and General Counsel in 2007. John has appeared for the Crown in over 1500 Court of Appeal cases and has appeared before the Privy Council 18 times.

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Philip Skelton QC is a graduate of the Universities of Auckland (LLB) and Oxford (BCL). He joined Russell McVeagh’s Auckland office in 1983 and became a partner in 1991. Philip joined the independent bar in 2006 and practices in the fields of employment law and commercial litigation.

Les Taylor QC is a graduate of the University of Canterbury. He joined Wellington firm Bell Gully before becoming a barrister sole in 1999. In 2002 he joined Minter Ellison Rudd Watts as a litigation partner returning to the bar in 2007.

Les specialises in commercial litigation particularly insurance law and practice.

Trevor Shiels QC graduated from the University of Otago and began his career at the firm Paterson Lang where he spent 17 years, 13 as partner. He became a barrister sole in 1992 and has a general, mainly civil and tribunal, practice with some criminal law.

Peter Watts QC is an Auckland barrister and professor of law at Auckland University. He has broad expertise in commercial law, particularly in agency law, company law, equity, restitution, and insolvency law. Peter has written widely on the law and has been cited by the highest courts in many Commonwealth jurisdictions. Peter has advised the New Zealand Law Commission and the Law Commission of England and Wales.

Peter is a door tenant at Fountain Court Chambers, the Temple, London.

Justin Smith QC graduated from the University of Canterbury joining Christchurch firm Lane Neave and Co before moving to Luke Cunningham & Clere in Wellington. He has been a partner in the firms Kensington Swan and Russell McVeagh and joined the independent bar in 2007.

Justin is a general commercial litigator particularly in the areas of securities, energy, judicial review, Fair Trading, Commerce Act and resource management.

Terence Stapleton QC is an LLB(Hons) graduate of the University of Canterbury. After working at Christchurch firm Kerr Mackintosh & Co, he joined Nolan & Skeet where he became a partner and the Gisborne Crown Solicitor from 1979 to 1987.

In Wellington, he was a litigation partner at Brandon Brookfield and Simpson Grierson before co-founding Stapleton Stevens (a specialist litigation and dispute resolution firm) in 1994. Terence was a Commerce Commissioner for two terms from 1993 to 1998 and an inaugural Cease & Desist Commissioner from 2002 to 2007. He is a Fellow of both the Chartered Institute of Arbitrators (UK) and AMINZ and is both a Commercial Mediator and a Chartered Arbitrator. Terence has a long association with the NZLS CLE Litigation Skills programmes. He joined the independent bar in 2000 and specialises in advocacy, litigation and dispute resolution, primarily in commercial, company, construction, property (including relationship and trust) and securities matters.

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New Members of the New Zealand Bar Association The New Zealand Bar Association welcomes the following new members: Mr Mohammad Rafiqul Chowdhury Mr Bryan Gundersen Ms Desley Horton Mr Michael Lee SC

Bangladesh Wellington Auckland Sydney

Mr Ron Mansfield

Auckland

Ms Cathy Murphy

Auckland

Mr Ian Telford

Auckland

Mr Mark Tushingham

Auckland

Mr Dean van Mierlo Miss Katherine Venning Mr Peter Whiteside

Runanga, West Coast Auckland Christchurch

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Building Experts: assessing expertise and qualifications

By Steve Alexander* Litigation in the building and construction sector increasingly requires a background knowledge of how the industry works at a grass roots level together with in depth knowledge of building methodologies and science. There are a limited number of experts available in New Zealand.

Successfully selecting the best expert can often revolve around having Steve Alexander an understanding of the industry, particularly the transition of knowledge and specialism that is occurring and will continue over the next 20 years. Equally, this understanding may help a litigator to effectively challenge an expert.

Background to qualifications Eric Burnett is widely regarded as the grandfather of modern building science in North America. Eric, a civil and structural engineer, divides the built environment into two parts: firstly, civil or structural infrastructure and secondly, built infrastructure. The latter can then be divided into engineered buildings, i.e. large commercial, industrial, educational and institutional buildings and nonengineered buildings, typically low-rise housing, small commercial and industrial buildings and farm buildings. In most engineering faculties in North American universities, the non-engineered, lowrise built facilities, particularly housing, have been almost completely ignored, even though low-rise residential buildings make up a large portion of building business, the economy and cause the most difficulty.

Burnett then divides buildings into four component parts: the structure, enclosure, services and fabrics or interiors. Of these, the enclosure (the part that divides the external environment from the internal environment) has been given no attention at a professional engineering

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level, notwithstanding that since the mid 20th century, it has provided the most difficulty and failure. Engineering faculties in North America are now addressing the science of the building enclosure.

There now are an increasing number of highly skilled enclosure engineers who work with first principals of building physics and chemistry to understand the function and failure of building enclosures in all climate zones resulting in increased understanding of the nature of heat, air transport, water vapour transport, moisture storage, moisture management, rainwater control, and analytical tools.

By contrast in the United Kingdom, building surveying has been a tertiary qualification for many years. Building surveyors are also concerned with the fabric or enclosure of the building, the durability of materials and the form and function of buildings. Building surveyors are not derived from the engineering discipline, but are a discipline in their own right and by comparison to North America, they take a more economic view of building performance than the more scientific view in North America. There is a distinctly different angle of approach.

Although building methods in NZ are far more closely aligned with North America than the UK, many Royal Institute of Chartered Surveyors (RICS) recognised building surveyors have immigrated to NZ.

“There are some experts coming out of specific parts of the industry with very focussed knowledge, but they can lack an understanding of the building enclosure.�

Qualifications for expertise in NZ NZ did not have a significant history of building failure until the 1990’s.

Our building methods derived substantially from what had worked in the past, rather than from the fundamentals of building physics.

Quite suddenly, NZ found that past methods were no longer working and there was, for a time, a crisis of failure and a void of understanding.

This has led to a decade of analysis of building failure and development of the science behind the building enclosure specific to our materials, methods and climate zone.

The first people in NZ to begin the forensic investigation of building failure came mainly from the building disciplines, not from engineering or architecture. The original tertiary

qualification, the NZ Certificate in Building offered before bachelor level courses were widely available, provided education above trade level with emphasis on understanding building materials, assembly and industry regulation. These have been the people who have turned their minds to the diagnosis and remedial attention required of building enclosures in NZ. They brought an understanding of grass roots building methodologies, established trade practices, how these evolved and the reasons for that evolution. These experts are typically not engineers or architects (although there are exceptions) and have formed the nucleus of building enclosure experts in NZ for the last 15 years. There are some experts coming out of specific parts of the industry with very focussed knowledge, but care is needed as they can lack an understanding of the building enclosure, that is, most often, the part of the building that has failed.

that would never have been gained in any tertiary learning but can be fed into the tertiary courses of the future. The best experts for most building disputes, at present, are those with the most experience with investigating and remediating building enclosures, coupled with a thorough understanding of what all this new experience has taught us. Many practitioners in the building industry have had limited exposure to this knowledge and industry publications are few and of limited educational value.

“The most relevant experts, at present, are those with the most experience with investigating and remediating building enclosures…”

Bachelor level courses in building have now been available for 15 to 20 years but none effectively address building physics, the science of the building enclosure or building pathology. Victoria University has offered degrees in both architecture and building science for many years, but their building science qualification is more oriented to building design, economics and management. NZ has adopted the term “Building Surveyor” to describe building experts. This is the UK terminology rather than the North American terminology where the “enclosure specialist” has become a highly demanded branch of engineering.

This explanation would not be complete without acknowledging the work of scientists and engineers at the Building Research Association (BRANZ) in Wellington whose work is highly regarded internationally.

However until the late 1990’s, their efforts had been more focussed on structure and fire. BRANZ research of the building enclosure has increased but is quite limited in scope compared to international research and has yet to filter down to everyday building practice.

New Zealand is experiencing a transition of knowledge that is demanded of building professionals.

Over time more New Zealand experts will become focused on the science of the building enclosure to fully understand the failures of existing practice and to meet the changing demands of modern buildings. *Steve Alexander specialises in the diagnosis and analysis of building failure, assessing code compliance, design and estimation of building remediation, and building performance surveys. Steve is the principal of Alexander & Co (http://www.alexander.co.nz)

The education of the building surveyor in NZ has been substantially assisted by the NZ Institute of Building Surveyors Inc. who have run programs to teach building pathology, investigative methods, remediation practice and the like. NZIBS members are the most reliable source of expertise on the building enclosure demanded for most litigation needs, but there are exceptions. NZIBS members are typically (but not exclusively) limited to low rise buildings.

Building surveyor numbers in NZ have been boosted by buildings surveyors emigrating from the UK. However, the new immigrants from the UK arrive without knowledge of NZ building and come from an environment of very different building materials, methods and history, so it takes many years of experience before they can be effective as an expert in NZ. Experience rules Qualifications and professional associations aside, there is no substitute for experience gained in testing and removing the failed enclosures from a diverse range of buildings. This has revealed significant new knowledge

13

Getting Rid of the Court Bag: LexisNexis Red

By Jacqui Thompson*

Having spent many years assessing research products and negotiating pricing with publishers, as well as carrying out research herself, Jacqui was the ideal person to trial LexisNexis’ digital looseleafs for the Bar Association.

A few years ago, one of the partners at a law firm I worked for was the judge in a Court Martial. He shoved a rather full criminal law looseleaf into his already overloaded court bag and lugged it off to the hearing. The looseleaf had not been properly clipped shut by the previous user and the inevitable happened. He pulled it out to refer to it in the course of the hearing and a few hundred pages fanned out across the bench and onto the floor. Unfortunately, this part of the hearing was actually being filmed for the evening news.

Law Service on to an iPad mini. It was fast to load and ready to use within seconds. It was easy to find the content that I was looking for, using both the contents option and the search function. When I found a relevant section of the text, the hyperlinks allowed me to deepen my research, including jumping to material on the internet.

A Red subscription will allow you to load the product to two devices such as a desktop computer (or laptop) and a tablet/ iPad. You can sync between an iPad/tablet version and your desktop/laptop, so that annotations you make on one will be uploaded to the other. But this doesn’t apply if your desktop/ laptop is a Mac. LexisNexis Red, while working well on an iPad, is ironically not available for Mac.

Anyone who has had to put a looseleaf back together after its contents have spilled everywhere, or has spent time that they will never recover in their lives doing the mind-numbingly tedious task of filing looseleaf updates, is going to like LexisNexis Red.

For larger organisations an e-lending portal will be available later this year, allowing subscribed titles to be loaned out to multiple users over a subscription period. For organisations with limited space, this will enable more titles to be provided to more people without the shelf space requirements.

Anyone who is struggling with online databases will also like LexisNexis Red. It is the “halfway house” solution between the familiar hardcopy and the completely different online version.

It has the look and feel of a hardcopy looseleaf with most of online’s functionality.

Pricing is dependent on a number of factors, including your other subscriptions to LexisNexis products and your type of practice. Matthew Pedersen is LexisNexis’ key account manager who liaises with New Zealand Bar Association members, and says that pricing is a flexible matter that is worth discussing with your account manager. If you already subscribe to an online database, LexisNexis Red will be discounted as a second media title. Likewise if you have hardcopy, it will be discounted.

What is it? The website publicity says it is “...a portable digital referencing tool for your looseleaf titles.” The actual product describes itself as “... a mobile referencing solution providing you with access via your iPad or laptop.” Personally, I just call it a digital looseleaf. It allows you to load a looseleaf onto a mobile device and read it wherever you happen to be.

Advantages of the product are: • It is easy to read, with a familiar format. Similar to eBooks, it can be read in a logical flow; • It is portable – no more having to carry heavy looseleafs around, and you can load several titles onto one device; • You are not dependent on internet access to use it because it is loaded to your device; • It is easy to use. You don’t need complex training and can pick up the basics by watching a two minute YouTube clipYouTube clip; • Red is fully searchable and includes a table of contents and index to allow you to browse and find information easily; • The search function is fast and jumping through the links in the products is fast; • It automatically updates when you go online; • You can annotate it – and your annotations will be saved.

For those who have carefully stuck post-its to strategic spots only to find that they have been tossed out in the updating, this will be a welcome relief; • You can highlight relevant portions; • Copy and paste is available to integrate Red content into your documents seamlessly.

Most of the LexisNexis’ main looseleaf titles have been released in this format. I loaded my trial subscription of Sim’s Court Practice, the District Court Practice and the Family

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So the question is why would you buy LexisNexis Red if you already subscribe to online or hardcopy? This is where you need to decide what product is going to make your practice more efficient. Not every product suits all users.

Red is ideal if you are on the go – whether in meetings or in Court. It definitely is not a “gimmick.” Recently, to increase efficiency, the NSW police force issued 280 iPads to its in-court prosecutors so that they could use LexisNexis Red. It is also ideal if you are going to be somewhere where an internet connection is either not possible or difficult/expensive.

If you like a “book approach” to research (conceptual and context based), Red will work well. Online research can be fragmented and difficult to place in context. However, online still has the advantage in that you can research across products and practice areas depending, of course, on your subscriptions. Red is not a substitute for the in depth research capabilities of the online platforms. But is it a substitute for hardcopy? Probably – depending on the size of your organisation and how many people need access to the product. This is where you need to negotiate with your account manager for a good pricing structure. * Jacqui Thompson is a law graduate with a background in legal libraries, legal research and writing as well as various web projects. Jacqui works for the NZ Bar Association as Training Director and compiling “At the Bar.” To contribute to At the Bar, please email her at jacqui.thompson@nzbar.org.nz.

Raise the Bar

Go digital with LexisNexis® Red™

Mobilise your research with this convenient referencing tool, providing you access to your looseleaf services via iPad and Windows PC. Be confident knowing that your services are updated automatically, accessible 24/7 and will be at your fingertips when you need them the most.

For more information, or to request a demo, visit www.lexisnexis.co.nz/rednzbar or call Matthew Pedersen on 09 368 9515.

© 2013 LexisNexis NZ Limited. LexisNexis and the Knowledge Burst logo are registered trademarks of Reed Elsevier Properties Inc., and used under licence. “iPhone”, “iTunes”, and “iPad” are trademarks of Apple Inc.

Book review: The end of lawyers as we know them?

By Jacqui Thompson*

“Tomorrow’s lawyers” by Richard Susskind, (2013, Oxford University Press, 165pp) RRP $26.99 Richard Susskind latest book draws on many of the themes he highlighted in his book “The End of lawyers”. The more optimistically titled “Tomorrow’s Lawyers” suggests ways to meet the changes that will occur in the profession. Ostensibly it is addressing new law graduates but it is really aimed at all practising lawyers. Its message is that there will be fundamental changes in the next three to six years and by 2035 (the mid career point for new lawyers emerging today), we will be looking at a legal profession that has changed beyond recognition.

The drivers for change According to Susskind, change will be driven by “the more for less challenge”, or an increasing need of clients for legal input, coupled with shrinking budgets. Added to this is the liberalisation of legal practice in most common law jurisdictions. In the UK this has led to alternative business structures, with increasing non-lawyer investment, participation and ownership in the £25 billion UK legal market. Finally, technology will not only introduce new efficient workflow processes but will allow more self help, so that people will not need to consult lawyers in many areas.

Two strategies for meeting this more for less challenge are the efficiency strategy (finding ways of cutting costs such as improving work flow in routine tasks), and the collaborative strategy (clients coming with common needs coming together to share the costs). In the case of the first, the need is to identify work that can be “routinized” and undertaken by “less qualified, lower cost, human beings” or through computerisation.

Legal communities will be a growth area. These are a cross between Linkedin and Wikipedia, but available only to a small group of lawyers who can build up bodies of collective knowledge and experience. An example would be inhouse lawyers communicating knowledge to share the costs of legal services.

The future for litigators and the courts Susskind says that litigators are the most resistant to the idea that all legal work can be “decomposed” into various tasks, some of which can be undertaken by non-lawyers more efficiently. Of the nine areas involved in litigation, only strategy, tactics and advocacy should be reserved to the experienced lawyer. Other tasks such as discovery and document review can be undertaken by lower cost staff in areas like India, rather than juniors at high hourly rates.

Likewise, project management of litigation could be outsourced to those who are more expert in the field. It is, says, Susskind, the collective arrogance of lawyers that

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allows them to believe that, with very little experience or training, they are capable of undertaking large scale project management. He contrasts this with the level of expertise in project management in accounting firms.

So what is the legal landscape going to be like for litigators? Susskind predicts that for the immediate future, very high-value and very complex issues will continue to be argued before conventional courts in the traditional manner. However it is less clear that instructing barristers or trial lawyers for lower value or less complex matters will be commercially viable. The shift to mediation, collaborative lawyering and other forms of ADR will reduce the number of cases that will find closure in the courts.

Courts will become IT enlightened, using technologies such as computer aided transcription and document display systems (that take everyone to the same page in documents at the same time, without the need to manually flip through to it). Research suggests that these two technologies alone could reduce hearing times by up to one third.

Online Dispute Resolution via the internet will increase. An example he quotes is Cybersettling, a system that claims to have settled 200,000 claims with a combined value of over US$1.6 billion. Another example is eBay, where each year 60 million disputes between users are resolved. Although not many lawyers have heard of ODR, it is, says Susskind, a direct assault on the work of trial lawyers – but also a great opportunity to become a market leader in this area.

Susskind believes that in the legal profession there are the benevolent custodians and the jealous guards. The former nurture the law and make it affordable and accessible to the public. The latter wish to ring fence legal practice and make it their exclusive preserve. Tomorrow’s lawyers must take on the “mantle” of the benevolent guardian, and celebrate access to justice and bringing value to clients. It is not, Susskind says, the purpose of law to keep lawyers in business, but to help support society’s needs of the law.

Although a “once over lightly” projection of what the future holds for lawyers, this is a book that lawyers should be talking about. The key to success in this future is technology driven and involves using appropriate resources to reduce time spent on routine work. The time to come to terms with this and prepare for it is now; not in a few years. * Jacqui Thompson is a law graduate with a background in legal libraries, legal research and writing as well as various web projects. Jacqui works for the NZ Bar Association as Training Director and compiling “At the Bar.” To contribute to At the Bar, please email her at jacqui.thompson@nzbar.org.nz.

Looking at the new High Court discovery rules 12 months on

By Andrew King*

Andrew King

With requirements that the cost of discovery be proportionate to what is at issue, the rules focus on better planning, co-operation and use of appropriate technology.

have. If this information is difficult to identify, then the cost of locating and retrieving the information will continue to escalate. Being more informed at an earlier stage will assist parties in estimating the likely costs involved in discovering their information.

It is over 12 months since the new discovery rules commenced, which gives us an opportunity to understand the practical impact of the new requirements.

Many will not have been involved in a discovery exercise under the new rules, while others may only have just come across their first matters.

E-Discovery is not just scanning paper documents Managing electronic documents in the same way as paper documents will only lead to greater inefficiencies and increased costs. For some, all they are doing is listing documents as they always have and then just scanning documents. This is missing the true effectiveness of the process.

The new discovery rules establish a framework to assist parties reach agreement on discovery issues in a proportionate and cost effective manner. The Court now requires that the cost of discovery be proportionate to what is at issue.

The rules have substantially changed the way discovery is conducted.

There is more importance placed on the work required at an early stage of a discovery exercise. Parties must address the new Discovery Checklist (in Schedule 9 of the rules) on all matters and then discuss the issues raised with the other parties to agree the scope and practical arrangements for conducting discovery.

Over recent years there has been an exponential growth in the volume and sources of electronic information. Nearly all information now originates in electronic form. Unless legal professionals are more informed about the electronic discovery process, it can be very complicated, time consuming and costly.

Early planning is essential Overriding all of the issues is the importance of planning the discovery exercise if needless expense is to be avoided. Spend enough time at the outset of a matter to not only understand what you are required to do, but also what options are available to you. There is definitely more ‘front loading’ of work under the new discovery rules, but this initial work will provide greater benefits in the rest of the conduct of the discovery exercise.

All matters are different, so it is important to understand your specific requirements, together with devising the most effective strategy to identify, collect, review and produce the information.

Even on the smallest of matters, the work at the outset can have significant advantages later in the proceedings.

Cooperation and proportionality It does take time to cooperate more fully over practical issues like discovery. However, the success of the new discovery rules will be down to how parties cooperate over what is proportionate and devising a method to target the important information that is at issue. The obligation to cooperate does not end as soon as the discovery order has been agreed. Parties need to ensure they cooperate early enough in the proceeding and then continue to discuss the practical arrangements of the discovery exercise.

Identification and collecting information from the client The Court now expects the parties to know more about their information at an earlier stage to enable them to assess proportionality on all matters. Previously this may have involved a request to the client for all ‘relevant’ information. The new process requires more control on what is being sought and the method of collecting it from the client.

The important questions with discovery commence with what you may have and where it is. These questions are now more complex due to the escalating volumes of electronic information organisations now

Collecting information in its original native application (e.g. word, excel, outlook), can save considerable cost and complication. The metadata (data about the information held within electronic files), can then be used to populate the list of documents. If you have to manually list documents (either from electronic or paper), there are many cheaper options where you can outsource this work (both locally and overseas) The final discovery is often only 100-200 documents, but to get to these documents can be complicated and costly. It is important to learn how to filter and cull information so documents can be reviewed and produced as efficiently and cost effectively as possible. There are many tools and techniques available to drill down and limit the volume of information.

Utilise technology efficiently and effectively The rules require technology to be used efficiently and effectively.

If you do not know what options are available to help manage discovery then it is important to have access to someone that can provide you with an independent assessment of the tools and techniques available. Technology evolves and so do the latest practices in managing information. It is important to keep abreast of these developments.

Software options can cost as little as a few dollars a month. It is a matter of finding the right software to suit your individual requirements. And regardless of the software you deploy, it is essential to devise a plan and strategy to effectively tackle your discovery obligations.

The technologies available are significantly ‘levelling the playing field” when it comes to managing information. These tools and techniques can give smaller firms the ability to more effectively compete with larger firms that may have more resources at their disposal. It can be more efficient to outsource this work, instead of having to invest in the technology and expertise in-house. One of the problems with technology is that it is evolving at an alarming rate, and many have been caught out by investing in in-house tools that are now obsolete.

From a cost perspective, outsourcing the logistics of discovery can be less expensive, as it saves a lawyer’s time and allows them to focus on their real area of expertise – the law. Expert guidance can ensure practitioners are equipped to deal with the increasing challenges of e-discovery. It is certainly likely to be less stressful to place responsibility for managing large volumes of data in the hands of experts with access to the latest tools and techniques.

Discovery can be challenging, but spending more time planning at an early stage, and devising the most appropriate strategy will result in a more effective discovery process. * Andrew King is a litigation support consultant at E-Discovery Consulting (http://www.e-discovery.co.nz/). He advises on strategies to plan every aspect of discovery exercises, simplifying the discovery process for lawyers. He also provides independent e-discovery software advice.

Contact: andrew.king@ediscovery.co.nz or 09 375 3055.

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Best Practice – what does it really mean?

By Ashley Balls* Comparative data on performance allows lawyers to identify where there are inefficiencies in their practices and to make adjustments to correct these. Ashley Balls outlines the factors involved in this exercise for barristers.

Performance metrics are nothing new and the 21st century lawyer has seen the increasing publication of operating data that simplifies comparative analysis and facilitates basic ranking. This is particularly prevalent in overseas Common Law jurisdictions where it is now a matter of course that lawyers in private practice can compare an extensive range of performance characteristics.

These include: • Profit per lawyer • Fees per lawyer • Lock-up (WIP & Debtors) as a proportion of annual fee income • Utilisation rates (the proportion of time at work that is fee earning) • Lawyer productivity • HR ‘leverage’ (the ratio of lawyers to support personnel) • Cost analysis as a proportion of fees billed. (The % spent on salaries, property, PI insurance, property, library, IT, transport, post & telecommunications etc.)

• Property occupation – total office space divided by the number of Full Time Equivalent (FTE) personnel.

The result of having access to performance data enables lawyers to identify where their operational outputs are less than optimal and to make remedial adjustments. Access to verifiable data in the public domain has, according to some highly respected legal commentators, seen the development, application and adoption of Information Technology (IT) and other tools and business processes designed to increase productivity.

Telephony costs Where do barristers fit in all this and what constitutes best practice in terms of operational performance? Fortunately, there are some guidelines and indicative benchmarks – some of which may surprise. For example, the cost of providing telephone services – both landline and mobile. Whilst there is no published data, local access to a very large number of datasets has enabled some rule of thumb observations.

The typical cost of providing fixed line telephony is running at $3,000 - $4,000 per lawyer per annum. This includes line rentals, internet costs, local and toll charges. Add in mobile costs of around $3,000 per annum and telephony quickly becomes a major expense.

Many practitioners believe they are price-takers and can do very little to lower costs other than seek bundled arrangements from telco providers where mobile, fixed and internet from one provider costs less than using multiple suppliers. However, there are other alternatives that can drastically reduce costs – in some cases to around $1500 $2,500 per lawyer per annum. The key is to use Voice Over Internet Protocol (VOIP) technology and reduce the number of fixed line connections.

The generation of $1.25m would require a lawyer to charge and recover an eye watering $961 per hour 5 days a week for a full 52 weeks a year.

In NZ there is a continued reluctance for lawyers to publish data, with many still adhering to the view that the information is ‘private’. Quite why this view prevails when, in most jurisdictions, the data is available off the shelf or on-line, is another matter. For example, in late 2012, for the first time, all the largest 200 UK law firms (by fee income) supplied their fiscal performance data for an annual survey. Some balked at providing the really granular information, such as revenue per square metre of space occupied – principally because of the time/effort required to find and/or calculate the relevant data.

Moving away from the top 200 there is a range of other studies that deliver valuable information to small law firms and barristers sole. Many of the overseas studies concentrate on costs management and devote attention to finding ways of driving down costs, as opposed to more

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important factors such as building fee income and client satisfaction.

There are numerous companies who will provide a VOIP line, usually as an adjunct to the internet connection, for around $10 a month plus call charges at around 2c per minute to ANY location in NZ or overseas. For mobile users, WiFi options and smart phone ‘apps’ provide low cost or free calling options. For the record, my telephony bills for fixed line, internet and two mobile lines is never more than $250 a month. When overseas, take a pocket Wi-Fi unit which tethers to all your mobile devices. Buy it a local Sim card and the cost of data transfer will drop from $10 a megabyte to around 1c or 2c.

Fee generation The critical figure most lawyers want to know is the quantum of fees that can be generated in a year and what proportion will be ‘consumed’ by fixed and variable costs. Statistics NZ Annual Enterprise Survey (AES) can supply figures on fees on a subscription basis. In general terms the national fee average is close to $235,000 of fees per annum. This disguises an enormous variation as there are a few that can generate close to a million.

Claims of figures much higher than this defy mathematical scrutiny and are in all probability just tall tales. For example, the generation of $1.25m would require a lawyer to charge and recover an eye watering $961 per hour 5 days a week for a full 52 weeks a year. The typical working year is 44 weeks, with most managing to convert little more than 50%

of work time to fees. Most lawyers working 50 hours a week are unlikely to bill more than 44 x 25 hours x average billing rate. At $350 per hour this amounts to $385,000 and makes no allowance for discounting, ‘mates rates’, Legal Aid, bad debts and write-offs.

Fixed/variable costs and Lockup Fixed and variable costs will alter by location, stenography/ secretarial services, library and precedent subscription, office rental, type of work carried out, seniority, staff, resources (IT, photocopying, telecommunications, utilities, transport etc.) Developing a model that works is, to some extent, a matter of choice, based on whether to have a dedicated town/city centre office, use of remote digital secretarial services, how much advocacy is involved, whether some resources are shared with others (reception, interview rooms, document shredding, filing/archiving, servers etc.). All have the capacity to dramatically alter the proportion of fees available as drawings and none have any impact on the quality of services delivered.

Finding a reasonable level of lock-up (WIP & Debtors) is always a vexed question, the answer to which is close to the apocryphal ‘how long is a piece of string’? A recent English survey (September 2012) suggested most lawyers, whether practising as barristers or solicitors, operated with lock-up at between 120 and 140 days where annual fees ÷ 365 = 1 lock-up day. In other words the typical English lawyer is carrying a sum of unbilled work equivalent in value to at least 4 months’ fees. This situation is quite unnecessary, costly and widely replicated here in NZ, the implication being that a typical barrister billing say $300,000 per annum could convert half their lock-up of $100,000 ($50,000) to cash. Many resist carrying out the changes necessary to make this happen, citing the notion that clients will never put up with it. To

them, I can say with confidence that I have never seen a client leave their lawyer because there was an expectation that the payment schedule would be business-like.

Other metrics a prudent lawyer should be aware of centre around property occupancy. The range from published overseas surveys is 16 metres to 32 metres per person.

Surprisingly the least efficient users of space seem to occupy the most expensive property with City of London ‘Magic Circle’ firm Allen & Overy having an occupancy rate of 32 meters per person at a very smart address. With property typically accounting for 6% - 12% of total fees, some attention to space occupancy makes sense.

Start with an annual budget Managing the plethora of data starts with an annual budget.

This need be no more than a simple spread sheet and a few formulae, but it is of little value unless the income side of the ledger can be predicted with some accuracy. It would appear that for many the use of budgets is arbitrary, with a significant number electing to operate without one. A budget is the start of a process where fixed and variable costs are measured against projected income and where any significant ‘actual’ variance is a call to action.

Attaining best practice standards in economic terms is only part of a picture that centres on quality assurance, where the outcome is the most efficient delivery of quality legal services to the client for a price that reflects value and meets stated objectives. *Ashley Balls advises lawyers on matters optimising performance and return. Ashley established LegalBestPractice (co-jones.pmf@clear.net.nz) and is a founding member of the Law Management Group (www.lawmanagementgroup.com).

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The Importance of Looking The Eye Examination Experience Closely at Your Eyes

By Matthew Whiting*

Regular eye examinations become more important as you get older.

Many eye-related conditions that tend to show up during your 40s and 50s may have no physical symptoms until they’re quite advanced. You should have a regular eye examination every year once you’ve reached 40 – and these examinations are even more important if you have high blood pressure, diabetes or a family history of eye disease.

If you’re over 40 years of age and you notice that it’s becoming difficult to read the menu in a low lit restaurant, or if you have to extend your arms when reading a book or sending a text, you’re probably suffering from presbyopia. This is a natural part of growing older and occurs when your eyes lose their ability to bring close objects into clear focus.

This will generally be remedied by wearing a set of corrective lenses (either spectacle or contact lenses) for near viewing tasks.

After the age of 40, the chances of developing age related macular degeneration also increases. This is the most common cause of blindness for people over the age of 50 in New Zealand and can lead to loss of vision if not treated early. There are two types of this condition, dry macular degeneration and wet macular degeneration. Both affect your central vision, but the wet version is more serious as it may create scar tissue which blocks your central vision.

For most people, cataracts occur naturally as a sign of ageing. A cataract clouds the lens of your eye, making it look milky, and the condition becomes worse over time. Symptoms include hazy vision causing blurred or distorted images, colour perception that appears more yellow, dark spots or shadows that move when your eye moves and needing more light to see clearly.

Dry eyes occur when your eyes aren’t lubricated enough, the chemical composition of your tears is not balanced or you don’t produce enough tears. Dry eye can affect anyone of any age, but is more common as we get older because we produce a smaller volume of tears. It can lead to uncomfortable sensations such as scratchy, itchy or dry eyes. You may also experience burning or red eyes and blurred vision. Strangely enough, dry eyes may sometimes feel watery too.

Glaucoma affects your peripheral vision slowly and may not be noticeable until it’s advanced. The disease affects the nerve fibres at the back of your eye. Once the fibres die, you’ll experience loss of vision and potentially blindness so it’s vital to detect this condition early. Even if you have no eye-related symptoms, you should have an examination for glaucoma at least by the time you are 45.

Pterygium is a triangular shaped piece of tissue that grows on the white part of the eye, usually close to your nose. It’s not dangerous, but wearing sunglasses and lenses with UV protection is the best way to slow down further growth, as a leading theory proposes that the prevalence of pterygium is caused by long-term exposure to ultraviolet radiation, specifically UV-B radiation. It’s important to note that not all sunglasses provide the same level of UV protection, with many fashion spectacles offering only some protection from UV rays.

Almost everyone will notice a few spots in their vision, especially as we grow older. These floating specks are in the fluid of the eye and are harmless, unless they suddenly increase in number or size. If this occurs, you should see an optometrist as soon as possible for further examination. * Matthew Whiting is the Regional Eyecare Manager for Luxottica NZ

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By Lisa Mills

The Bar Association decided to use its Administrator, Lisa Mills, as a crash test dummy for modern eye care. We sent her along to OPSM, one of our benefit providers, where she put them through their paces.

Sight is incredibly important in most professions, more so for those who deal in words. Personally, having sat in front of a computer screen for most of my working life I realise it is as important to my job as having fingers to type.

So having reached my mid 40s I had begun to notice the significant effort it took to read the fine print on just about everything. Reading for pleasure had virtually become a thing of the past and don’t ask me to thread a needle, because unless I can borrow a pair of glasses it is just not going to happen. I decided it was time to take myself off to a professional who would be able to confirm what I already suspected – age was finally catching up on me. Wanting to take full advantage of the member benefit NZBA had recently negotiated, OPSM was undoubtedly the first port of call.

We started with background general health questions and wall chart reading (who knew that totally non -related conditions could manifest or be identified through an eye test), then moved through an array of the most advanced eye testing equipment in the country. The slitlamp (viewing the health of the eye from the front), the phoropter (determining the prescription required), retinal photography (45° view of the eye) and finishing up with the digital retinal scan (200° view of the eye, including the back) there was no way that any nasty condition could go undetected under such close scrutiny. The digital retinal scan of each eye was displayed on the screen and the optometrist explained my results in detail and answered my questions. The outcome, my eye health was actually pretty good for a woman of my years - nothing a pair of 0.75 prescription reading glasses could not fix.

Next, step out into the shop and on to Accufit and frame selection. Photos were taken of me modelling the frames I liked. This was so I could actually see and compare a variety of frames on my face. Decision made, frames chosen, a digital measurement of my pupils was used to ensure my prescription lenses were perfectly placed in the frames I had chosen. Lastly, frames chosen and, prescription priced and NZBA discount considered, I left feeling reassured that I had purchased a very good pair of glasses which would last me a long time. I also felt I had been given a great deal on the price which made the bargain hunter in my nature feel very satisfied. I have since collected my glasses, tried them on to ensure I was still happy and a week later received a follow up call to make sure everything was good.

4G - Making you move even faster

By Nikos Skepetaris*

Just as we all got used to 3G, 4G has arrived, leaving us to wonder why we should update? What are the benefits of 4G? As Information and Communications Technology (ICT) continues to develop, the business world is applying it ever more broadly – and across increasingly diverse applications. Critical to this is the development of mobile communications technology.

The latest such technology, 4G LTE (‘Fourth Generation – Long Term Evolution’), provides substantial performance improvements over previous mobile technologies, and offers the promise that connectivity will no longer be a barrier to realising the benefits of enterprise mobility.

These improvements in application performance and enterprise mobility can bring a range of benefits for business mobile users: Compared with previous mobile network technologies, 4G LTE offers much higher bandwidth (speed of data transfer), lower latency (faster response times from the network) and improved spectrum efficiency (increasing overall network capacity). In practice, this allows: • More applications to be used on mobile devices, out of the home or office • Faster or real-time sharing of large files and streaming media • Near-immediate delivery of time-sensitive data, such as for real-time interaction or transactions 4G – the world’s fastest mobile network technology – has now launched in New Zealand, heralding a new era in superfast access to content and information on the move. Vodafone’s 4G network is up to 10 times faster than standard 3G services, allowing users to stream, download, upload, browse and game faster than ever before. Kiwis can download a book in less than a second, stream a half hour show in less than 5 seconds and download an album in less than 3 seconds. And 4G

delivers a near seamless connection to the cloud, so businesses can upload and download attachments in seconds, and load web pages instantly.

4G is live now for Vodafone customers in parts of Auckland with the network expanding to more suburbs every week.

4G will be live in parts of Christchurch in June, parts of Wellington in August/September 2013 and in 15 NZ cities

by Christmas 2013.

So what does this mean?

The key difference is faster online access and a better overall experience – with tools like Google maps, photo uploads and seamless access to cloud applications that will enable you to do more work on the go.

For many people, their smartphone has become one of the few items that they can’t leave home without. 4G is the network that the best smartphones were made for, meaning you can access all the information and entertainment you want in real time – and connect faster than ever before.

Large, high definition files can be sent seamlessly at high speed, giving you desk top functionality when they’re working remotely and offering true mobility away from the office.

If you want to experience the speed of 4G, you will need a 4G-capable device with the latest software, a qualifying plan and be in a 4G coverage area. The device seamlessly switches to the next fastest 3G speeds when customers leave the 4G coverage area. Several 4G-capable devices are available now – including iPhone 5, Sony’s Xperia Z, Windows Phone 8X by HTC and Samsung GALAXY Note II 4G variant. For more information and 4G coverage maps, visit www.vodafone.co.nz/fast-network/. * Nikos Skepetaris is the National Sales Manager – Acquisition for Digital Mobile. Check our Member Benefits section on our website for more information

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EVENTS Visit by Delegation from the Beijing Lawyers Association The Bar Association hosted a delegation of lawyers from the Beijing Lawyers Association who visited Auckland in May. The meeting gave an opportunity for Bar Association President Stephen Mills QC, Council members Simon Moore QC and Clive Elliott QC and Executive Director Melissa Perkin to discuss the structure of the Bar Association, its role to its members and the wider legal community. One of the aims of the visiting delegation was to encourage closer ties between New Zealand and Chinese lawyers. Members who are contemplating visiting Beijing are welcome to contact Executive Director Melissa Perkin for an introduction to a representative of the Beijing Lawyers Association.

NZBA Sponsors Sentencing Advocacy Competition

Left to right: Simon Moore QC, Stephen Mills QC, Justice Heath, Philip Arnold, Justice Woodhouse, Timothy Conder and Rob Stevens

The Bar Association was happy to sponsor the High Court Sentencing Advocacy Competition once again. The competition is now in its sixth year. The competitors are drawn from the law faculties of the University of Auckland, the University of Waikato and the Auckland University of Technology. The Competition was also sponsored by the Ministry of Justice and is organised by the Judges’ Clerks at the Auckland High Court.

Competitors are given a fictional scenario of a prisoner awaiting sentence, and are assigned to act as either counsel

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for the Crown or for the prisoner. The competitors must prepare written submissions, and present oral submissions in a courtroom in front of a High Court judge.

The preliminary round, which took place in both the Hamilton and Auckland High Courts, saw 15 competitors present their case for a young cricket aficionado charged with wounding with intent to cause grievous bodily harm, in a racially motivated attack against a South African cricket supporter.

The semi-final round involved 6 competitors presenting their

case for and against a young man charged with aggravated robbery of a residential property.

the Public Defence Service attended the final with Mr Mills QC presenting the prizes.

The final of the Competition required finalists to present submissions on the sentencing of a young man charged with manslaughter. The prisoner, a former gang member, drove off with his aggressor (and one time gang associate) clinging to the bonnet of his car before crashing, with fatal consequences, into a tree. The final was presided over by Justices Woodhouse and Heath and took place on 16th April in Courtroom 1 of the Auckland High Court.

The Judges and moderators of the competition commented on the high standard of written and oral advocacy evident in all rounds of the competition. Many competitors have expressed how useful they have found the experience, noting that it was one of the few competitions in the law school calendar with a criminal law orientation.

The Bar Association congratulates Timothy Conder as the winner this year. The runner up, by a small margin, was Philip Arnold. Both finalists are students at the University of Auckland. The winner and the runner up received prizes provided by the Association of $600 and $400 respectively.

Association President Stephen Mills QC, Council member and Crown Solicitor Simon Moore QC and Rob Stevens of

The Bar Association and Judges’ Clerks would like to thank everyone involved in this competition, and in particular: Justices Woolford, Brewer, Courtney, Andrews, Heath and Woodhouse for acting as judges and Fiona Culliney, Alix Boberg, Sanya Marin, Elizabeth Rutherford, William Fotherby, Fergus Whyte and Association Council members Clive Elliott and Gerard Curry for acting as moderators throughout the competition and providing valuable feedback to all the competitors.

Success - What it looks like and how to achieve it The NZBA co-hosted with the Auckland Women Lawyers Association a well-attended seminar in March 2013.

Speakers included Career Consultants Sandy Burgham and Emily Morrow and was chaired by immediate Past President of the NZBA, Miriam Dean QC. Speakers encouraged participants to question what was their success framework, their vision, mission and stage of their journey.

Ms Burgham described a study which reflected the greatest regrets of those who are dying, including wishing they hadn’t worked so hard, had the courage to express their feelings, stayed in touch with friends, allowed themselves to be happier and had the courage to live true to themselves and not what others expected of them.

Ms Morrow addressed the common change in focus that occurs during one’s career from technical expertise noting

that over time, technical competency alone is insufficient for long term success in the practice of law. She identified core capabilities including the ability to influence and recognizing the importance of building relationships and described the differences between authority (often a blunt and transient instrument) and influence (subtle and ultimately more effective and enduring). The need to have excellent oral and written skills, including practicing active listening as well as having a basic understanding of the four temperament types was seen as important in enabling one to be successful.

Ms Dean reflected on her experiences in the law from the earlier times in her career in law firm and first female partner at Russell McVeagh, making the decision to go to the Bar in 1995 and more recently onto the boards of Auckland Council Investments Ltd and Crown Fibre Holdings and as the current Chair of New Zealand on Air.

Panel: Sandy Burgham, Emily Morrow, Michelle van Kampen and Lee Scott organiser Angela Hansen and Miriam Dean QC

Rachel Reed, Jacqui Parker and Sarah Mandeno

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Bench and Bar Dinner The NZBA hosted its annual Bench and Bar Dinner in Wellington on 13 June. Attorney-General Hon. Christopher Finlayson QC addressed the audience identifying current and upcoming changes with a variety of legislation, with a particular focus on the Judicature Act 1908. A significant contingent of Australian barristers attended, including the President of the Australian Bar Association, Michael Colbran QC, as well as representatives from Victorian Bar Association, ACT Bar and New South Wales Bar.

Desley Horton and Les Taylor QC

Jenny Cooper, Daisy Williams, Desley Horton and Melissa Perkin

Hon. Justice Susan Glazebrook and Hon. Justice Ellen France

Helen Cull QC and Christine Grice

Terence Stapleton QC and Karen Stevens

Noel Sainsbury, Hon. Christopher Finlayson QC, Clive Elliott QC and Malcolm Wallace

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Stuart Pilkinton SC and Chris Gudsell QC

Catherine Bibbey and Dr Gerard Curry

Sir Grant Hammond and Hon. Chester Borrows

Bruce Corkill QC and Jason McHerron

Simon Moore QC and Mike Heron QC

Stephen Mills QC, President of NZ Bar Association

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Commerce and the Regulators Seminar 12 June 2013 The Bar Association recently hosted a seminar which looked at the extension of liability in commerce, finance and business. In particular, it considered the new financial markets regime and the changes to the Commerce Act. The speakers included Justice Terence Arnold (whose appointment to the

John Land, Justice Arnold, Gerard Curry, and Derek Johnston

Supreme Court Bench had been announced the day before the seminar), the Director of the Financial Markets Authority, Sean Hughes, and senior barristers Derek Johnston, John Land and Dr Gerard Curry. Email nzbar@nzbar.org.nz for further information about the availability of papers.

Gerard Curry and Jim McElwain

Practice Alerts from The Law Report* Breach of Intervention Rule - WC v AU LCRO 219/2012, 6 June 2013 This decision involved an application by WC for a review of a Standards Committee decision, that WC had breached r14.6 Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 (intervention rule) and that this constituted unsatisfactory conduct under s12(c) Lawyers and Conveyancers Act 2006 (“LCA”).

The complainant, AU, had been instructed by the then Legal Services Agency (“LSA”) to act for AV. AV had subsequently sought to have WC appointed as her counsel. The LSA refused consent to reassignment of counsel. WC had lodged a bail application on a pro bono basis in the expectation that he would be assigned by LSA to represent AV. AU complained to the Lawyers Complaints Service that WC had acted for AV when she was represented by other counsel (AU) and without an instructing solicitor.

The Legal Complaints Review Officer (LCRO) found that WC had clearly undertaken legal work for AV and he had not had an instructing solicitor when he undertook that work. The fact that WC had acted without a fee was irrelevant. While there was an exception to r14.6 where the lawyer was “providing assistance to a legal advice service operating on a non-profit basis or acting pro bono on work referred by such a service”, that did not apply here as there had been no intervening legal advice service.

While WC may have been motivated in his actions to ensure AV received appropriate legal assistance in a timely way, it was not clear that WC’s views had been reasonably held. It was difficult to see how there was a great deal of urgency in respect of the bail application. There was no evidence WC had made any attempt to contact AU to discuss the situation. While it was not the role of a Standards Committee to enforce standards of mere etiquette, it would seem usual to raise these matters with the other counsel as a matter of courtesy and to ensure that the interests of the client were properly protected and there was no duplication or confusion.

Decision of Standards Committee confirmed.

Reverse Briefs and Payment of Fees held in Solicitor’s Trust Account – TG v NP LCRO 190/2011, 1 February 2013 Application by TG for a review of a determination of a Standards Committee not to take any further action against the practitioner, NP (a barrister), who had represented TG in connection with an

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application by TG’s wife to set aside a prenuptial relationship property agreement.

TG had lodged a complaint against NP concerning (among other matters), the failure by NP to provide a letter of engagement setting out the client care information required by the Lawyers and Conveyancers Act 2006 and misappropriation of money held in the trust account of CCC, NP’s instructing solicitors. CCC had paid funds which been received into its trust account on behalf of TG, to NP, in part payment of an invoice NP issued to TG. TG had instructed NP directly, who had then approached CCC to be the instructing solicitor. TG had not had any interaction with CCC. TG had never received any statements from CCC. The LCRO found that NP’s use of CCC’s trust account had resulted in an incorrect view by NP of her entitlement to the funds held on trust by CCC. CCC had been required to obtain specific instructions from TG before making any payments to NP from the funds held on trust, in accordance with s110 Lawyers and Conveyancers Act 2006 and r 12(6) Lawyers and Conveyancers Act (Trust Account) Regulations 2008 (payments put into trust account must be paid as instructed by the client). CCC had made the payment to NP without authority from TG. It was important that barristers and solicitors who accepted reverse briefs took note of the fact that the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 (the Rules) remained to be observed, and practitioners who did not fulfil their obligations remained exposed to the disciplinary consequences.

NP had been instructed prior to the commencement of the Lawyers and Conveyancers Act 2006. There was no requirement at that time to provide the client care information referred to in r3.4 of the Rules.

However, the Lawyers and Conveyancers Disciplinary Tribunal in Auckland Standards Committee No.1 v Hart [2012] NZLCDT 20 considered that a barrister was still required to provide this information where the involvement of an instructing solicitor was minimal.

Decision of the Standards Committee confirmed. *The Law Report is a weekly newsletter summarising cases of legal significance, together with legal news and articles. Access to full headnote summaries and the cases is available at http:// www.thelawreport.co.nz/

NEW ZEALAND BAR ASSOCIATION ANNUAL CONFERENCE 2013

EFFI CIENT JUSTICE Registration has opened for the NZBA Annual Conference to be held at the Heritage Hotel in Queenstown between Friday 23 August and Sunday 25 August 2013.

The Conference will facilitate a dialogue between Bench and Bar about practical steps available to make litigation quicker and cheaper. Discussion will be led by the Conference Co-Chairs Chief High Court Judge Justice Winkelmann and Bruce Gray QC. Speakers include the Chief Justice, the Attorney-General, the Solicitor-General, several High Court and District Court judges together with leading barristers. The Conference will also be looking at the work of the Constitutional Review Commission and the Role of the Bar in protecting the Rule of Law. The Conference will start with an informal dinner on Friday 23 August at Botswana Butchery.

There will be a formal dinner on Saturday 24 August at Stoneridge Vineyard. The Conference will conclude at 11.30am on Sunday 25 August.

Registration and full programme information is available on the NZBA website at: http://nzbar.org.nz/Category?Action=View&Category_id=303, Places are limited so please book early.

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2012-2013 COUNCIL CONTACT DETAILS STEPHEN MILLS QC – President Ph: +64 9 307 9820 stephen.mills@shortlandchambers.co.nz P O Box 4338, Shortland Street, Auckland 1140 CATHERINE BIBBEY Ph: +64 3 389 5355 c.e.bibbey@xtra.co.nz PO Box 38153, Christchurch 8842 TIM CASTLE – Vice-President Ph: +64 4 471 0523 Fax: +64 4 471 0672 tim.castle@xtra.co.nz P O Box 10048, Wellington DR GERARD CURRY – Vice President Ph: +64 9 377 9783; Fax: +64 9 377 9784 gerard.curry@argylechambers.com P O Box 106586, Auckland 1143 CLIVE ELLIOTT QC Ph: +64 9 309 1769; Fax: +64 9 366 1599 elliott@shortlandchambers.co.nz PO Box 4338, Shortland Street, Auckland 1140 BRUCE GRAY QC Ph: +64 9 307 9811; Fax: +64 9 307 1572 bdgray@shortlandchambers.co.nz PO Box 4338, Shortland Street, Auckland 1140 LISA HANSEN Ph: +64 4 914 1052 l.hansen@barristerscomm.com PO Box 8045, Wellington 6143 DESLEY HORTON - Junior Barristers’ Representative Ph: +64 9 307 9826 dhorton@shortlandchambers.co.nz P O Box 4338, Shortland Street, Auckland, 1140 PAUL MABEY QC - Vice President Ph: +64 7 577 1091 Fax: +64 7 577 1092 pgmabey@xtra.co.nz PO Box 13199,Tauranga 3141 SIMON MOORE QC - Co-opted Ph: +64 9 336 7505; Fax: +64 9 336 7629 simon.moore@meredithconnell.co.nz Meredith Connell, PO Box 2213, Auckland 1140 DAVID O’NEILL - Co-opted Ph: +64 7 839 1745 Fax: +64 7 838 9319 david.oneill@nzbarrister.com PO Box 815, Hamilton 3240 SUZANNE ROBERTSON Ph: +64 9 307 8778 suzannerobertson@xtra.co.nz PO Box 854, Shortland Street, Auckland 1140 JUSTIN SMITH QC Ph: +64 4 917 1080; Fax: + 64 4 472 9029 justin.smith@stoutstreet.co.nz PO Box 5722, Lambton Quay, Wellington MATTHEW SMITH – Junior Barristers’ Representative Ph: +64 9 460 0749 Matthew.smith@chambers.co.nz PO Box 1530, Wellington 6140 DEAN TOBIN Ph: +64 3 477 8781 Fax: +64 3 477 8382 dean.tobin@princeschambers.net P O Box 1424, Dunedin MALCOLM WALLACE – Vice President/Treasurer Ph: +64 3 379 6976 Fax: +64 3 366 6291 malcolmwallace@bridgesidechambers.co.nz P O Box 13254, Christchurch 8141

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