At the Bar June 2016

At The Bar June 2016

Profile of the President When an “Exit Agreement” is Not the Final Word Voice Coach Lucy Cornell The 2016 Silks

From the President By Clive Elliott QC INSIDE THIS ISSUE

This is my first column as President of the New Zealand Bar Association. As members will know, our former President Paul Mabey QC was appointed to the District Court Bench in April this year, which has meant an earlier than expected succession to the NZBA Presidency for me. My term was due to commence in October this year.

Pg 2 - From the President Pg 4 - Bench and Bar Dinner 2016 Pg 6 - Profile of the President Pg 7 - Queen’s Counsel 2016 Pg 10 - World Bar Conference 2016 Pg 12 - NZBA Gender Equity Committee Pg 13 - NZBA Commercial Barristers’ Committee Pg 15 - When an “Exit Agreement” is Not the Final Word Pg 18 - An Interview with Voice Coach Lucy Cornell Pg 20 - Product Review – Practical Guidance Suite Pg 21 - New Members Pg 22 - Flow and Expertise Pg 24 - Mindfulness – a Competitive Advantage Pg 27 - Winter Wellbeing Pg 29 - Ten Tips for Using LinkedIn Pg 31 - Petrol Head’s Corner – Audi Q7 v Landrover Pg 34 - Mastering Cros-Examination Pg 35 - Sentencing Advocacy Competition 2016 Pg 36 - NZBA Council The views expressed in the articles in this publication may not necessarily be the views of the New Zealand Bar Association. EDITORIAL COMMITTEE David O’Neill (Chair) Tel: +64 7 839 1745 Email: david.oneill@nzbarrister.com Melissa Perkin Tel: +64 9 303 4515 Email: melissa.perkin@nzbar.org.nz CONTRIBUTIONS & ADVERTISING: Jacqui Thompson Tel: +64 9 303 4515 Email: jacqui.thompson@nzbar.org.nz DESIGN AND LAYOUT BY Kirsten McLeod - Hot Lobster Design 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

years has been invaluable.

We thank Paul for his efforts and time commitment while on the Council and during his Presidency. His work over the

In addition, our three junior barrister representatives are leaving New Zealand to study overseas. Alice Osman (Wellington) left at the end of May and Alexandra Sinclair (Auckland) and Stephanie Thompson (Auckland) are leaving soon. I thank them all on behalf of the Council for their hard work while they have been on Council. The Council considers that continuity with the junior bar is important, so it has decided to co-opt 3 junior members, James Watson and Tiho Mijatov (both Wellington) and Gretta Schumacher (Auckland) for the remainder of the current Council term.

World Bar Conference – The Edinburgh declaration The Association is a member of the International Council of Advocates and Barristers (ICAB). Every two years ICAB hosts the World Bar Conference (the 2014 conference was in Queenstown, of course). This year the conference returned to its birthplace of Edinburgh where the inaugural conference was held in 2002. At that first conference ICAB passed a resolution, known as the Edinburgh Declaration. At the end of the 2016 Conference representatives of ICAB, including Paul Mabey as the NZBA’s representative, reviewed the Edinburgh declaration in light of developments and challenges emerging since 2002. This resulted in a revised declaration which was put to and approved by those present at the Conference. The revised declaration is set out in the About Us section of NZBA’s website. A report of the conference from Judge Mabey can be found on p10.

2016 Annual Conference – 16 & 17 September - Taupo The Annual Conference is being held at the Millennium Hotel on the lakefront at Taupo. To make the conference more accessible to junior members, we have significantly discounted their delegate rates. The conference theme is The Art and Psychology of Advocacy. Our keynote speaker is Professor Maryanne Garry, from the School of Psychology at Victoria University Wellington. Professor Garry’s expertise is in real-life memory distortions especially as they apply to legal settings and the implications surrounding the accuracy or otherwise of eyewitness testimony. Dr Sven Hansen, founder of The Resilience Institute will be addressing delegates on Trial Fitness – The Science, as well as presenting at an optional workshop session. A full copy of the conference programme has been circulated with this issue of At the Bar and more information can be accessed on our website. We have a top quality line-up of speakers on topics

which include: • • • • •

The Unscripted Art of Cross-examination (Hon Justice Davison, Dr Jim Farmer QC, Lady Deborah Chambers QC, Rob Stevens and commentary from Professor Garry) The Forgotten Art of Re-examination (Hon Justice Lang, Mary Scholtens QC, Paul Radich QC and Brendan Horsley) Commercial Barristers – Evidence of the Breadth of the Independent Bar (Peter Castle, Jane Meares and Dr Derek Johnston) Access to Justice Update – Findings of the Access to Justice Working Group (Hon Justice Winkelmann, Hon Justice Venning, Clive Elliott QC, Frances Joychild QC and Professor Chris Gallavin) After Dinner Speaker - Hon Justice Clifford.

This is a great opportunity to hear from the highest calibre of speakers and to network with your colleagues. It also promises to be highly enjoyable as delegates will have access to one of the optional activities below: • • • • • •

Golf at Wairakei International Golf Course (including a hole-in-one competition with a prize of a new European car) Private fishing charter on Lake Taupo Taste of Taupo Scenic Lake Cruise Aratiatia Dam to Huka Falls Mountain Bike ride Visit to Lava Glass, which includes a glass blowing demonstration, and visit to their gallery and garden of glass sculptures Trial Fitness – The Practice - Workshop with Dr Sven Hansen.

Registration and accommodation information is available on the Association’s website.

Queen’s Counsel appointments We congratulate the 12 new Queen’s Counsel whose appointment was announced in early June. Celebratory dinners will be held shortly after ceremonies. A profile can be found on at p7. Bench and Bar Dinner – Auckland, 9 June and Wellington, 27 July The Auckland Bench and Bar Dinner was a great success and the event was a sell-out. We were delighted that John Allen, Chair of the Racing Board and former Chief Executive and Secretary of Foreign Affairs and Trade was able to address attendees. Our Wellington Bench and Bar Dinner attendees will be addressed by the Solicitor-General, Una Jagose.

Gender Equity A report from Kate Davenport QC on a new Gender Equity Committee can be found on p12. The Committee is being led by Jim Farmer QC and Kate Davenport QC. As the report states, the number of women practising at the New Zealand Bar does not reflect the proportion of women law graduates. Critically, as experience levels increase, the proportion of women at the Bar decreases. The NZBA Council has resolved to give greater

prominence to the issue through the work of the new Gender Equity Committee.

Intervention Rule As a result of the changes to the Intervention Rule, the template terms of engagement letter have been updated and included on the Association’s website under the Knowledge Centre – Practice Management page. Access to Justice Working Group The Access to Justice Working Group is planning to present a comprehensive “Access to Justice” report at the 2016 Annual Conference. The Group plans to initiate two or three meaningful and viable projects which flow from recommendations in the report. Young Lawyers Mooting Competition The Young Lawyers Mooting Competition is being held in Auckland, Hamilton, Wellington and Christchurch. All the finals are held in the week of 20 June. The national final is in Wellington before three Supreme Court judges on Thursday 21 July. The Association’s role in the competition is to assist with provision of members who can act as judges and mentors to the competitors. We thank all those below who have assisted as judges and mentors. They are: In Auckland: Robert Fisher QC (semi-finals), Graham Kohler QC, Philip Skelton QC, David Bigio QC, Jane Anderson QC, Marc Corlett QC (semi-finals), Rowan Butler, Simon Foote, Josh McBride, Suzanne Robertson, Nic Scampion, Daisy Williams and Garry Williams; In Christchurch: Hon Justice Davidson, Judge Borthwick, Jonathan Eaton QC, Peter Whiteside QC, Pru Steven QC, Glenn Jones, Tim McKenzie, Phil Shamy and Simon Shamy; In Hamilton: Philip Morgan QC, Chris Gudsell QC, and David O’Neill; In Wellington: Mary Scholtens QC, Paul Radich QC, James Every-Palmer, Jonathan Haig, Mike Lennard, Gareth Richards, Matt Smith, Tim Smith and Paul Withnall. We would also like to note the contribution of the NZBA representatives to the organisation of the competition. Those people are: Alexandra Sinclair and Stephanie Thompson in Auckland, Dale Lester in Christchurch, Philip Cornegé in Hamilton, and Alice Osman and James Watson in Wellington.

Sentencing Advocacy Competition The final for this year’s competition was held at the Auckland High Court in May. I attended the final and presented the prize money, which was provided by the Association. A report on the competition is at p35. Training The Training Committee is continuing with its programme of practical advocacy modules. Of particular note, the Mastering Cross Examination workshops in Auckland last year and in Wellington earlier this year have been highly successful. A report on the Wellington workshop is included at p34.

Bench and Bar Dinner 2016 The Bench and Bar Dinner was held at the Northern Club on 9 June 2016.

Clive Elliott QC, Fiona McLeod SC, Kathryn Beck and Patrick Oâ&#x20AC;&#x2122;Sullivan QC

Hon. Justice Matthew Palmer, John Allen and Clive Elliott QC

Matthew Casey QC and Geoffrey Jenkin

Brian Dickey, Brett Tantrum and Bob Hollyman

Rowan Butler, Fletcher Pildich and Lara Mannis

Kitt Littlejohn, Mark Oâ&#x20AC;&#x2122;Brien QC, Harry Waalkens QC and Judge David Mather

David Bigio QC and Aimee Creden

Paul Collins and Sheila McCabe

Dr Richard Keam, Graeme Little SC and Judge David Harvey

Suzanne Robertson, Hon Justice Geoffrey Venning, Gillian Coumbe QC and David Neutze

Christine Meechan QC, Hon Justice Mary Peters and Gary Williams

Hannah Stuart and Nura Taefi

Hon Justice Matthew Muir and Dr John Turner

Sandra Grant and Dr Jim Farmer QC

Nalini Soondram, Jonathan Westphal and Libby Major

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Profile of the President By David O’Neill It is with pleasure that the New Zealand Bar Association announces that Clive Elliott QC has taken over as the Association’s President with effect from 12 April 2016. Mr Elliott was President Elect and has agreed to step up early to the role of President, following the appointment of Paul Mabey QC to the District Court Bench. A barrister at Shortland Chambers, he is a registered patent attorney, barrister and arbitrator. Background information on Mr Elliott can be found at the foot of this article. Mr Elliott says one of the main areas on which he intends to focus during his term as President is the maintenance, growth and the well-being of the independent Bar, because of its fundamental role in the maintenance of the rule of law. He also wants to ensure that the Bar Association remains a strong representative body which speaks on behalf of the Bar as a whole and to ensure that it provides real tangible benefits to its members. Mr Elliott has previously served as a Vice-President and has been a Council member from some years. He has been an active member of several NZBA committees. Up until his appointment as President, he was the chair of the Newsletter committee and oversaw the transformation of At the Bar from a pamphlet style publication to a high-quality quarterly magazine. He has also contributed to its content, including in 2014 interviewing the former Chief Judge of the United States Court of Appeals for the Ninth Circuit, His Honour, Judge Alex Kozinski, on the future of the rule of law. In addition, Mr Elliott has served on the Law Reform Committee, and has been instrumental in the formulation of a number of the Association’s responses to Government proposals and legislative initiatives that impacted on or otherwise were of interest to members of the Bar. Mr Elliott’s commitment to the concept of the rule of law is demonstrated by his involvement as chair in the Access to Justice Working Group. This working group was formed in 2015 by the Association in response to growing concerns about the accessibility and affordability of justice and the strains on the system to deliver quality solutions. Mr Elliott continues to lead its initiatives. Another of Mr Elliott’s interests is in developing links between the New Zealand Bar and the Independent Bars in other jurisdictions. He is the Association’s international liaison and the NZBA representative with the International

Bar Association and the Australian Institute of Judicial Administration (AIJA). The Association welcomes Mr Elliott to his position as President.

David O’Neill

Vice President, Chair – Newsletter Editorial Committee.

Background Information Clive Elliott QC is a barrister and member of the New Zealand and New South Wales bars. He is a New Zealand registered patent attorney and arbitrator. Before going to the Bar, he was a partner at Baldwin Shelston Waters (Baldwins) and headed their litigation team. He was with the firm for 17 years. Clive graduated LLB from the University of Natal, Durban before completing an LLM (Hons) at Victoria University of Wellington. On moving to New Zealand in 1983 he joined Baldwins. He left the firm in 2000 to join the independent bar. Mr Elliott was called to the inner Bar in 2013, in the first year that the QC title was reinstated following a hiatus of several years. In addition to having served on the council of the NZ Bar Association for several years (most recently as a Vice President and the President Elect) Mr Elliott is on the council of the Auckland Branch of the NZ Law Society. He is a past council member of the Legal Practice Division of the International Bar Association (IBA) and past co-chair of the Intellectual Property and Entertainment Law Committee of the IBA. He is a past president of the Intellectual Property Society of Australia and New Zealand (IPSANZ). Mr Elliott has acted over the years as counsel in a large number of reported IP cases. He has handled diverse technologies and all aspects of IP, including patents, trademarks, trade secrets and copyright in the High Court, Court of Appeal and Privy Council/Supreme Court. He has acted as counsel in a large number of arbitrations, is a fellow of the Arbitrator’s Institute, a member of the WIPO and National Arbitration Forum and an Expert in the New Zealand Domain Name Resolution Service. He has decided a number of international domain name disputes. In addition to having authored numerous articles, Mr Elliott is also a co-author of the LexisNexis loose-leaf texts Copyright and Design; and Patents and Trade Marks In his “spare” time, Mr Elliott is also a well-known artist who regularly exhibits his work. Examples can be seen at https://cliveelliottart.wordpress.com/

Queen’s Counsel 2016* The NZBA warmly congratulates the following people on their appointment as Queen’s Counsel. They are (in call order):

Professor John Prebble Professor Prebble is currently Professor of Law at Victoria University of Wellington. Professor Prebble completed his law degree at the University of Auckland in 1967, before completing a BCL (Oxford) in 1970 and JSD from Cornell in 1972. Professor Prebble holds the highest international rank of professorship and teaches post-graduate courses internationally (London, Paris, Rome, Vienna, Beijing and Sydney). He is the world’s third most published legal scholar whose academic writing is regularly cited or referred to by the Courts. His main teaching and research interests are in income tax and he has given key expert evidence in New Zealand tax cases, including the Winebox, Ben Nevis and Conduit cases.

Derek Nolan

Bankside Chambers

Mr Nolan graduated with a LLB (Hons) from the University of Auckland and a LLM from the London School of Economics and Political Science. He was admitted in 1976. He joined Auckland firm Sellar, Bone and Partners in 1975 and remained with that firm until 1981 when he joined Russell McVeagh. Mr Nolan joined the independent bar in 2014. Mr Nolan is a guest lecturer and member of the Law Faculty at the University of Auckland. Mr Nolan’s areas of expertise are environmental and resource management law and related fields.

Kenneth Johnston

Lambton Chambers

Mr Johnston graduated with a BA and LLB from Victoria University and a LLM from the London College of Law. He was admitted in 1980 and joined the firm Watts & Patterson (later Rudd Watts) in 1981, becoming a partner in that firm in 1986. He joined the independent bar in 1997 and specialises in civil, commercial and employment litigation, estates and trusts, insurance, professional disciplinary and corporate governance matters. He is regularly appointed as an arbitrator/mediator.

Aaron Perkins

Mr Perkins graduated with a LLB from the University of Auckland in 1980. He worked for two Auckland law firms before joining the independent bar in 1982. In 1986 he joined Meredith Connell, the Auckland Crown Solicitor’s office, and was a partner in that firm from 1993. Mr Perkins has prosecuted a number of complex high profile murder and manslaughter cases. He returned to the independent bar in 2014. Mr Perkins specialises in criminal prosecution and related work.

Kieran Raftery Mr Raftery graduated from Manchester University in 1969. He was admitted in New Zealand in 1988 and joined Auckland firm Meredith Connell, becoming a partner in that firm in 1992. Mr Raftery joined the independent bar in 2015 and specialises in criminal work and work for Crown/public agencies. Mr Raftery is admitted in Samoa and Fiji and has been a faculty member for the Pacific Island Litigation Skills programme since 2000.

Richard Raymond

Canterbury Chambers

Mr Raymond is a graduate of the University of Otago and was admitted in 1988. He joined Wellington firm Buddle Findlay before spending some time in London firm McKenna & Co. In 1993 he returned to Christchurch working at Raymond Donnelly and then Duncan Cotterill where he was made partner in 1998. He joined the independent bar in 2011. Mr Raymond specialises in insurance based litigation and commercial and civil dispute resolution.

Victoria Casey

Thomas More Chambers Ms Casey is a graduate of the University of Auckland. She was admitted in 1988. Ms Casey initially joined Bell Gully Buddle Weir and worked in their Auckland and Wellington offices. Ms Casey joined Meredith Connell in

2002 before going to the independent bar in 2003 where she remained until her appointment as a Crown Counsel at Crown Law in 2008. In 2012 Ms Casey returned to the independent bar specialising in public law, commercial and commercial-regulatory litigation.

Una Jagose

Solicitor-General for New Zealand

Ms Jagose graduated LLB from the University of Otago and LLM (First Class Honours) from Victoria University of Wellington. Admitted in 1990 Ms Jagose joined the then Ministry of Consumer Affairs before moving to the Ministry of Fisheries where she was appointed Chief Legal Advisor in 1999. Ms Jagose joined Crown Law in 2002 and was appointed Deputy Solicitor-General in 2012. She was appointed to the position of Acting Director of the Government Communications Security Bureau in 2015 and was appointed Solicitor-General in February 2016.

David Bigio

Shortland Chambers Mr Bigio graduated from McGill University in 1988. He joined Auckland firm Minter Ellison (previously known as Rudd Watts and Stone) before moving to Ellis Gould in 1992 becoming a partner in 1994. In 2003 Mr Bigio joined the independent bar. Mr Bigio specialises in general civil and commercial litigation including in the fields of real estate and property, building and construction, unit titles, trusts and governance.

Jane Anderson

Shortland Chambers Ms Anderson is a graduate of Canterbury (LLB) and Oxford Universities (BCL). She was admitted in 1991 and joined Auckland firm Rudd Watts and Stone. Ms Anderson joined the independent bar in 1998 and since then has also lectured on intellectual property at Auckland University and acted as a part-time assessor for the College of Law. Ms Anderson has a broad practice with a focus on commercial litigation.

Marc Corlett

Shortland Chambers Mr Corlett graduated LLB (Hons) and MJur (Distn) from the University of Auckland and LLM from Cambridge University. He was admitted in 1992 and joined Simpson Grierson Butler White. In 1996 he joined Russell McVeagh where he continued to work in the area of commercial litigation. In 2002 Mr Corlett joined Meredith Connell as a prosecutor before returning to Russell McVeagh and commercial litigation in 2008. He joined the independent bar in 2010 where he specialises in commercial litigation, fraud and regulatory, and criminal law.

Vanessa Bruton

O’Connell Chambers Ms Bruton is a graduate of the University of Auckland and was admitted in 1995. She initially worked for Auckland firm Hesketh Henry before joining Brookfields in 1999, becoming a partner in the commercial litigation team in 2004. Ms Bruton was a founding partner of TGT Legal from 2011 until 2014 when she joined the independent bar. Her areas of practice are trust, estate and relationship property disputes. * Source: Press release, Office of the Attorney-General of New Zealand

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World Bar Conference 2016 – Edinburgh By Judge Paul Mabey QC In April I attended the World Bar Conference hosted by the Faculty of Advocates in Edinburgh. The theme of the conference was – “The Independent Referral Bar: Retrospective and Prospective”. The Conference is a biennial event for members of the International Council of Advocates and Barristers (ICAB) which was established in 2002 at the Inaugural World Bar Conference, also held in Edinburgh. The members of ICAB are the Bar Associations/Councils of Australia, Ireland, Scotland, England and Wales, South Africa, Hong Kong, New Zealand, Namibia and Zimbabwe. At the Inaugural Conference, ICAB passed a resolution, known as the Edinburgh Declaration. In a significant development, at the end of the 2016 Conference representatives of ICAB (including myself for the NZBA) met to review the Edinburgh declaration in light of developments and challenges emerging since 2002. This resulted in a revised declaration which was put to and approved by those present at the Conference. The revised declaration is set out on the NZBA’s website under the About Us section.

• Professor George Yarrow of Oxford University who spoke of the contribution of an independent legal profession to economic success; • Professor Richard Susskind the IT advisor to the Chief Justice of England and Wales. His theses are likely known to most of us. He spoke of the impact of globalisation and technological change; • Mr Justice Frank Clark, a Judge of the Supreme Court of Ireland who spoke on the role of the independent Advocate in the development of the law; and • Lord Neuberger the President of the UK Supreme Court. Topics for discussion in the Conference sessions included: • Standing up for the rule of law; • The responsibilities of the independent advocate in challenging circumstances; • The future of the independent referral Bar from the point of view of the junior Bar; • Heads of the ICAB Bars discussing: - Core professional values; - Challenges to independence from external forces (government, external regulators etc); - The benefits of self-regulation; - Direct access; - Public access; - Alternative business structures; - Access to justice • Gender and diversity issues. • The place of international law in the Common Law Courts.

The 2016 conference followed on from the very successful conference held in Queenstown in 2014, hosted by the NZBA. The Heads of Bar from all ICAB member associations were present (including the head of the Namibian Bar which comprises 35 Barristers) together with delegates from all member countries. I counted eight or so NZBA members amongst the delegates. There were a similar number from Australia. Hong Kong and South Africa were well represented and, as would be expected were the Northern Hemisphere associations.

The papers presented by the various panellists and the keynote addresses are all available on the Conference website www.worldbarconference.com.

It was pleasing to continue to hear very positive comments about the Queenstown Conference which some regard as the best they have ever attended. I say however that the 2016 Edinburgh Conference was on a par. It was well run. The venues were outstanding and the Conference programme was impressive.

The challenges faced by the independent referral Bars are in many aspects common to all ICAB members. There are of course the extremes such as the active state interference in Zimbabwe and to a lesser extent Hong Kong. The South African Bar faces State regulation by a Council made up of a majority of government appointees.

The keynote opening address was given by Lord Carloway, the Lord President of the Court of Session in Scotland. He is the equivalent of our Chief Justice. I say more below about his abilities as a bass guitarist. Further keynote addresses were given throughout the conference by:

Difficulties involving access to justice was a constant theme. Cuts to legal aid, self-represented litigants and the cost of civil litigation are universal issues. The matters being addressed by our own Access to Justice Working Group are also under active consideration in other jurisdictions.

A matter of particular interest and focus of the NZBA Council is the interests of the junior Bar. That too was a matter for discussion at the Conference with addresses from members of the junior Bar of England and Wales, Ireland and South Africa. Their focus was typical of the concerns raised by our junior members and included mentoring, training, pupillage and the economic reality of commencing practice as a junior. The erosion of the legal aid base in the criminal and family jurisdictions is seen as a barrier to barristers commencing practice in those fields with the threat to the very survival of those specialist Bars. Listening to the comments made by the junior Bar and in discussion with other Heads of Bar I am pleased to say that our focus and the attention that the NZBA is giving to the interests of the junior Bar is very much on point. It should remain one of the primary objectives of the NZBA in the years to come. Those that addressed gender and diversity issues referred to New Zealand as leading the way. The NZBA Equitable Briefing Policy was held up as an example. As with any well run and topical conference the two days were intense and stimulating. It was important that we had a presence and it will be important that we have a presence in South Africa at the next conference. The principal conference venue was the Royal Museum of Scotland, an incongruously modern building in the old town but a perfect venue with delegates entering into the main public exhibition chamber complete with local, Egyptian, Buddhist and South Pacific artefacts. A large adjoining lecture theatre was ideal for the presentations with controlled sound, lighting, video and power point facilities. The final session which took place on the morning of the third day of the conference was in the members debating chamber of the Scottish Parliament. That too is a modern building at the bottom of the Royal Mile adjacent to Holyrood Palace. The Parliament building is open to the public. Delegates were subject to security procedures and were then taken to the debating chamber; a very modern and architecturally interesting building where we sat at MPs benches. The entire session chaired by the Chief Executive of the Scottish Parliament. It was clear that he was not going to have some barrister running a session of any sort on his patch. We all had to stand when the gavel was hit by the clerk and he ran the sessions with military precision. It was effective and impressive and a privilege for us all to be in that environment. The reception on the evening of the first day of the Conference was held in Parliament Hall, at Parliament Square. That is the home of the Scottish Faculty of

L – R: Jeremy Muller SC (South Africa), David Barniville SC (Ireland), Patrick O’Sullivan QC (Australia), Vimbai Nyemba (Zimbabwe), James Wolffe QC (Scotland), Winnie Tam SC (Hong Kong), Paul Mabey QC (New Zealand), Esi SchimmingChase (Namibia), Chantal-Aimee Dorries QC (England and Wales)

Advocates, the equivalent of the Inns of Court. It is a building just off the Royal Mile behind St Giles Cathedral and is ancient and dignified. The reception was held in a Great Hall which we entered by way of a passageway lined with counsel’s briefing boxes; I am told about 300 of them, which are no longer in use but are symbolic. Although they no longer have a practical purpose all members entering the Faculty have their brass name plate added to their briefing box. On the second night (the Friday evening) we were hosted for drinks by the Lord Advocate in the Great Hall of Edinburgh Council. I point out that the hotel accommodation for the delegates, arranged by the organising committee, was all in central Edinburgh with all venues, and the Castle, within easy walking distance. We gathered at the forecourt of the Castle, the scene of the Tattoo, and were then taken into the bowels of the Castle to the Great Hall. The Lord Advocate addressed us on the history of the Hall and those that had lived, and died, there. On the final evening the formal dinner was held in the Scottish National Gallery, a short walk from the Castle. The dining tables were literally arranged in the gallery surrounded by the Scottish National Collection. That was a unique experience. After the dinner the Faculty of Advocates had a party at Parliament Hall, this time in a basement gallery/library area set up with tables, a dance floor and a place for the band. I mentioned the fact that Lord Carloway plays the guitar. He is the bass player in a group called “The Reclaimers”. To reclaim in Scotland is to appeal.

His wife told me The Reclaimers formed about 20 years ago and have a large back catalogue of music consistent with their age, and mine. The Reclaimers consist of Lord Carloway, Sheriff O’Grady QC, Sheriff Liddle and Douglas Fairley QC. They were good. It was an interesting experience to see the dinner suited band with the Scottish Chief Justice playing bass and belting out the lead vocals to Bryan Adams “The Summer of 69”. Our membership of ICAB is essential and important. We have a strong common interest with our colleague Bars in addressing challenges that we face and in supporting and promoting the rule of law. I was pleased and proud to represent the NZBA at this conference. There is a clear mutual respect and friendship between the Heads of Bar and a real interest in what each of us are doing. There was keen interest from the delegates from the various member countries and the Scottish Bar acquitted themselves admirably in their organisation of the Conference. The next Conference is to be in South Africa in 2018. The venue has not yet been selected but is likely to be in Capetown or Durban. I encourage you to attend if you can and meet and share experiences with your colleagues from the other jurisdictions. Clive Elliott is now your President. He will do a great job.

Lord Carloway

He is supported by a hard-working Council, Committees and staff. The NZBA is an increasingly important and influential body in the New Zealand legal landscape. A strong and independent Bar is the cornerstone of an effective legal system. The NZBA exists to support and promote the interests of its members and thereby the strength of the Bar and promotion of the rule of law. I wish all of you the best for the future.

NZBA Gender Equity Committee By Kate Davenport QC The number of women practising at the New Zealand Bar does not reflect the proportion of women law graduates and as experience levels increase, the proportion of women at the Bar decreases. The Association has had an equitable briefing policy since 2009 and this policy has been endorsed by Crown Law. Following on from the findings of the New South Wales Equitable Briefing Working Group Report from 2015, a decision was made by the Council to create a Gender Equity Committee. The sub-committee will investigate the ways in which the Bar Council could do more to promote gender equity and ensure that more women receive a wider range of briefs. The sub-committee is to be chaired by Jim Farmer QC and other sub-committee members are: • • • • •

Kate Davenport QC Paul Radich QC Wendy Aldred Karen Feint Simon Foote

• Lisa Hansen • Stephanie Thompson The Solicitor-General has also agreed to be a member of the committee and as an initial step in getting this initiative off the ground, the Association has agreed with the Solicitor-General that we will send to her CV’s of women barristers who the Crown may be able to brief. This is one way of introducing to the Crown women barristers previously unknown to them. In the long term the Association is looking at running its own database to support this. If you would like to be considered for briefing by the Crown which briefs on a variety of civil work, please send an updated CV with a brief covering letter identifying the areas of law in which you would be comfortable taking instructions (e.g. land law, judicial review, tax etc) to Association Executive Director, Melissa Perkin at melissa.perkin@nzbar.org.nz. Melissa will arrange to forward the CV and covering letter onto the Solicitor-General. We do hope that you will support this initiative. Please feel free to call or email Melissa, Jim or I if you have any comments or suggestions for us. Kate Davenport.

NZBA Commercial Barristers’ Committee By Peter Castle* The NZBA recently resolved to establish a commercial barristers’ committee. Peter Castle explains the reasons why this is a welcome development. A commercial barristers’ committee will provide the opportunity for commercial barristers to contribute to the NZBA and its objectives. However, many members may not be aware of the types of work undertaken by commercial barristers (who are not advocacy barristers) practising in New Zealand and this article is intended to address this. The establishment of a commercial barristers’ committee of the Bar Association may come as a surprise to some members who have practised at the independent bar as advocates. However, for some time now there has been an increasing number of commercial lawyers becoming barristers and the number continues to grow. Traditionally, those practising at the independent bar have specialised in the preparation of pleadings, courtroom advocacy and providing legal opinions. The independent bar in New Zealand is generally reflective of the model on which it is based - namely, that of the United Kingdom. Barristers in both the United Kingdom and New Zealand spend more or less time on court depending on the nature of their practices. What may not be well known however is that in the United Kingdom, while the work of many barristers involves advising on disputes and advocacy, there are in fact many others whose practices are predominantly advisory in nature and who seldom, if ever, appear in court. The UK Bar Council is supported in its role by specialist bar associations which in effect represent specialist interest groups at the bar. One such specialist bar association is the Chancery Bar Association. This association was established in 1935 and material produced by it has noted the following: “Some Chancery barristers, particularly those who specialise in drafting complex documents, advising on transactions and working in the field of tax law, are in court very infrequently. Hence commercial barristers in the UK are sometimes referred to as “chancery barristers” or “equity barristers” Given that the profession in the United Kingdom is a split

profession, the existence of a specialist chancery bar association and non-advocate barristers is somewhat surprising. It might have been thought that in New Zealand, with its fused profession, chancery or equity barristers would be more common but they are a relatively recent phenomenon. The first chancery barrister in New Zealand was John Fernyhough, who having been a partner at both Chapman Tripp and Russell McVeagh McKenzie Bartlett and Co, became a barrister in 1979. Michael Webb became a barrister in 1995 and Quentin Hay in 1998. Since then, the number of commercial barristers has continued to grow.

Why practise as a barrister? The attraction of the independent Bar for many is the true independence it brings. For the commercial barrister it means advice can be provided unimpeded by conflicts of interest and the other interests of a firm. Most commercial barristers have gone to the independent Bar after careers in large law firms and/or government agencies. Invariably they have specialised in company law and business structures such as joint ventures, large and/or complex commercial transactions or contracts including construction and infrastructure project contracts and banking and securities law. Some went to the Bar and practised as advocacy barristers but have moved away from advocacy and into commercial and advisory work. Examples of work undertaken by a commercial barrister who falls into this category include advising on large-scale energy contracts, long-term pricing, credit rating applications, as well as advising overseas governments on energy resource development. Many practise as barristers to differentiate themselves as subject matter specialists from those who undertake the usual array of work undertaken by solicitors. Their specialisation means they provide advice to smaller and/or non-metropolitan law firms whose clients do not typically undertake larger scale or complex transactions. Such law firms are comfortable instructing commercial barristers because they recognise that there is no risk of their clients being “poached”. Similarly, practising as barristers enables conflict referrals from the large law firms where their specialist skills are required.

Some practise as barristers because they can be instructed as subject matter specialists by in-house legal teams of large corporates, government departments and Crown entities. In many cases the in-house legal teams provide substantial resources to support an experienced and commercially aware senior practitioner. Finally, some commercial barristers practise as barristers to gain the freedom to accept governance roles without being subject to potential conflict of interest constraints which are inherent in large law firms.

Work undertaken by commercial barristers There is a wide range of work undertaken by commercial barristers. Some undertake occasional appearance work, others are exclusively involved in advisory work and drafting and negotiating complex commercial agreements. All are involved in negotiations on complex matters in some form or another, and as a consequence are very much advocates for their client’s contractual positions. Some examples of the work undertaken by commercial barristers include: • Advice on, and negotiation of, share and asset sale transactions and related competition law issues. • Advice on standard form construction project contracts and large-scale finance-driven projects such as build, own, operate and transfer contracts and public private partnerships. Preparation and negotiation of long-term energy contracts seems to be the domain of a number of barristers, as is advice on generation projects both here and overseas. • Takeovers, both partial and full, have been the subject of advice from commercial barristers in recent times, as have public offers of shares, such as the Government sell-down of shares in the energy companies and Air New Zealand. • In relation to securities law, commercial barristers have advised the regulator and the private sector on complex security law issues such as the granting of exemptions, KiwiSaver schemes, custodian requirements and share offers. Extensive advice on stock exchange listing rules and, in particular, disclosure obligations has also been provided. • Those commercial barristers who practice in Wellington have a particular focus on public law in the advice that they are required to provide. The type of work is not only advisory (for example on issues of statutory interpretation) but also includes enquiries for government departments such as the

investigation undertaken for the Ministry of Business, Innovation and Employment following the Royal commission of enquiry report into the Pike River disaster (for which total independence is mandatory). • With large-scale local government and territorial authority procurement processes and the increasing level of scrutiny on government procurement, a number of commercial barristers are involved in providing advice on the documentation in relation to such procurement as well as the provision of probity oversight of the processes adopted. In light of the level of government procurement (each year $30 billion of goods and services are procured by the Government) and recent judicial decisions on the reviewability of the decisions made in respect of such processes, it would be fair to say that the level of advice in these areas will continue to increase. In addition, some commercial barristers practise as mediators, arbitrators and adjudicators. This article is not intended to provide a definitive description of the work undertaken by commercial barristers, but it is hoped that members will get the flavour of the work they undertake from it. Those who practise as commercial barristers do not seek to compete in any way with advocacy barristers and the opportunity for participation in the Association by means of the special interest group is welcomed by us all. We look forward to contributing to the activities of the Association. * Peter Castle became a commercial barrister in 2007 after 28 years at Bell Gully. He advises the Crown on complex transactions such as the implementation of the Crown retail guarantee scheme, the Mixed Ownership Model transactions and the International Convention Centre. He also provides probity advice on, and oversight of, Crown procurement processes and specialist advice in the electricity sector. Contact Peter at peter.castle@cliftonchambers.co.nz

When An “Exit Agreement” Is Not The Final Word By Mark Donovan BA LLB (Hons)* Like most of my colleagues who specialise in employment law, I spend a good deal of my time out of court settling disputes between employers and employees. What makes those settlements work is that employers are willing to pay or do something to ensure they are not later forced to contend with a personal grievance. But is it really possible to bind an employee from exercising their right to bring a personal grievance? Normally you would expect the principles of accord and satisfaction to kick in. An employee can give up their right on that basis if they wish, you might say. However, the right to bring a personal grievance is enshrined by a statute, the Employment Relations Act 2000, which also decrees that you cannot contract out of its provisions. Yet if we cannot contract out of those provisions, where does that leave the numerous settlements that employment law practitioners like myself facilitate on a regular basis? What do we advise our employer clients?

Roy v Board of Trustees of Tamaki College This question has recently been given some attention by the Employment Court. Despite its importance, and despite the Act having been in force for a decade and a half, the question does not appear to have been fully considered by the Court before now. In Roy v Board of Trustees of Tamaki College [2014] NZEmpC 153 and [2016] NZEmpC 20, the Court issued two judgments that touched on the issue. Mr Roy claimed he had been forced to resign from his role as a teacher, and was therefore constructively dismissed. His employer countered by claiming he had previously settled the matter, so that his personal grievance could not proceed. Mr Roy did sign terms of settlement under which he agreed to resign and be paid $6,500 under s 123(1) (c)(i) of the Act, but he said he had been coerced into doing so. He asked the Court to disregard the terms of settlement and let him proceed with his grievance claim.

But even before signing that agreement, he had indicated his intention was to resign from his role. He also did not raise his personal grievance with his employer until several months after he left the job. Nevertheless, the Court granted him leave to raise his grievance outside the 90-day period specified under s 114(1) of the Act. The Court accepted that, like any contract, a settlement agreement might be liable to being overturned where there is frustration, mental incapacity, misrepresentation, fraud, duress, undue influence and unconscionability. However, the Court found that Mr Roy was not unduly influenced or put under duress. He elected not to get legal advice on the agreement, though he had an opportunity to do so. What was less clear was whether the agreement should prevent Mr Roy from having his personal grievance heard on the basis that it was an attempt to contract out of the Act.

No Contracting Out Section 238 of the Act provides: 238 No contracting out The provisions of this Act have effect despite any provision to the contrary in any contract or agreement. On its face, that section might render void any provision in a “full and final” settlement agreement that purports to prevent the employee from accessing their personal grievance rights under the Act. The Chief Judge took this argument seriously, and indicated that in at least some cases s 238 would have that effect, remarking at paragraph 195 of the 2016 judgment: “...it should not be assumed that a so-called ‘exit agreement’ by resignation purchased for a very modest sum even before the necessary constituents of a personal grievance have arisen, let alone before one has been raised, will thereby be an effective shield against a grievance claim in all cases ... such a scenario might constitute a contracting out of personal grievance rights contrary to s 238.” The Chief Judge gave a hypothetical example where an employee, after raising a complaint about their supervisor, is presented with terms of settlement out of the blue that purchase their resignation and their agreement not to take a personal grievance. That might be an example of contracting out in the Court’s view, but

each case would require: “...an intensive factual analysis of the circumstances in which the full and final settlement agreement came to be signed. This may involve questions of alleged duress; insufficiency of opportunity for reflection and to seek and act on legal advice; the reasonableness in all the circumstances of the monetary consideration for the resignation; and the like.” In Mr Roy’s case, the Court found that there was no contracting out of the personal grievance provisions, because: • there was a serious employment relationship between the parties, even if Mr Roy had not yet raised a personal grievance by the time he entered into the settlement agreement; • he had already signalled a strong intention to resign; and • he was given the opportunity to obtain independent legal advice on the settlement proposal, even though he did not take that opportunity.

Avoiding A Void Settlement So in what circumstances would s 238 of the Act override a purported settlement of a personal grievance? The Court’s judgment suggests the following factors are relevant: • whether a personal grievance, or at least a serious employment relationship problem, had arisen prior to the settlement being entered into; • the value of the consideration paid to the employee; and • whether the agreement was entered into fairly, for example without duress and with an opportunity given to the employee to get advice. However, with respect, those factors appear to address whether there was valid accord and satisfaction – that is, an agreement supported by consideration to settle a genuine dispute between the parties. The real question, in the writer’s view, is whether, despite any accord and satisfaction, the attempt to prevent the employee from proceeding with their personal grievance under the agreement is rendered void by s 238 of the Act.

A Practical Solution? Section 149 of the Act provides a mechanism by which settlements of employment relationship problems can be countersigned by mediators engaged by the Ministry of Business, Innovation and Employment. Settlements

of employment matters are commonly countersigned in this way because of three benefits accorded to such settlements under s 149(3): a) the terms are final and binding on, and enforceable by, the parties; b) the terms may not be cancelled under section 7 of the Contractual Remedies Act; and c) except for enforcement purposes, no party may seek to bring those terms before the Authority or the court, whether by action, appeal, application for review, or otherwise. It is not clear whether the settlement in Mr Roy’s case was countersigned according to s 149. But if it had been, it would have been arguable that the effect of s 149(3)(a) is that the terms of settlement were final and binding – not because the parties agreed they were, but because s 149(3)(a) of the Act gave them that status. On this view, s 238 would not interfere with the parties’ bargain because the binding force of the agreed terms arises from a provision of the Act. If this is correct, the resulting certainty that the personal grievance has been fully and finally settled represents a further incentive for employers to arrange for their settlement agreements to be countersigned by a mediator.

Conclusion As the law currently stands, practitioners should be wary of advising their employer clients to enter into terms of settlement where the employee has not yet raised a personal grievance. In those circumstances, given the uncertainty of how s 238 is to be interpreted, an employer will have the greatest assurance that their agreement is enforceable if: • a fair assessment of the value paid to the employee under the settlement is calculated; • the employee is given a fair opportunity to consider the terms of the agreement and to get advice before signing; and • the agreement is countersigned by a mediator under s 149. * Mark Donovan is a barrister based in Chancery Chambers in Auckland, He advises on employment related disputes as well as other civil disputes. Mark can be contacted at mail@ markdonovan.co.nz

An Interview with Lucy Cornell By Jacqui Thompson On 31 August, internationally respected voice coach Lucy Cornell will be presenting a four hour workshop for the NZBA in Auckland. Those who have previously attended Lucy’s classes say that they are not to be missed - we even have someone who has signed up for their second session with Lucy! Lucy works with executives and barristers. In addition to her extensive work in the corporate arena, she is a key component in the Australian Bar Association’s Advanced Advocacy Training Intensive each January and has trained court advocates for over 10 years in five different jurisdictions. She has worked with the International Advocacy Training Council, the Advocacy Training Council of the Bar of England and Wales, and has taught at the premier advocacy programmes at Keble College, Oxford.

How did you become a voice coach? I have always loved performing. I loved it at school and at university. I felt that I had a call to acting and teaching. I have a Masters of Applied Science in Voice Research, but I really fell in love with the idea of voice while living in London for a couple of years. I had the opportunity of observing some amazing teachers at the Royal Shakespeare Company, the National Theatre and, of course, the Central School of Speech and Drama. I came back to Australia after a couple of years, and found a master teacher so that I could really get into the study of voice. How did you come to study with Kristin Linklater? I did what amounted to a five year apprenticeship before training with Kristin Linklater. She doesn’t take just anyone. Kristin also only does her teacher training every five years, so there is only 200 of us in the world who teach it. Her technique is a very sophisticated architecture of exercises that aim to free up your natural voice. The assumption is that when we are born we have a free, expressive voice but that over the years it gets cultured and civilised into habits and patterns that help us survive, but it takes us far from our natural capacity. What is the difference between a voice coach and a speech/presentation skills coach? This is a key issue. Voice coaching is a deeper and more transformative approach to articulating and expressing

who you are. Kristin Linklater says that voice coaching is a quartet of thought, feeling, body and voice, in which no one instrument compensates for the other. The idea is that they are working simultaneously and not separately from each other. There is a real art to this. Speech coaches, toast masters and presentation skills coaches work from the outside – pace, pause, inflection, pitch, eye contact and gesture. These are mechanical devices and are a disconnect with the person speaking. And I do deal with this, but only after the focussing on the voice. Voice coaching is an inside out approach. If your voice is limited, it can be a career limiter for you – part of the glass ceiling. It can’t just be about the mechanics of pitch or speaking too quickly. As I said, I do deal with this mechanical stuff but that comes from listening to your inner voice first. For example, at a recent presentation I gave, someone said to me “oh, so it is just about slowing down”. The answer to that is no, it isn’t just that. The outcome of what I do may be about slowing down, but in finding space between your thoughts, you become really present with what you are saying and therefore by default, your audience becomes really present with what you are saying, and you connect in that moment. Connection helps you decide how you can persuade or influence or affect that person.

What makes advocates different? The reason I like working with barristers and advocates is that often they have no support network – no mentorship etc for the performance side of their work. They are like elite athletes or like doing a one man/one woman show, but they do it for days and not for just an hour. There are no directors giving them feedback, or structures managing the performance. And the environment is pressured. This can in some cases lead to advocates having a very strong ego because it is necessary to protect the performance, where you are vulnerable and available to the moment so you can respond strategically. The problem is that you don’t get anyone telling you if your performance was good or not.

What kind of people do you coach? My market is purely business people. Many years ago I worked with actors but I don’t do that anymore. I work with politicians very, very irregularly.

Voice is intimately connected to who you are so I do ask people what their story is. What really surprises me is people who have gone through immense adversity but yet have chosen a job that requires them to speak. I worked with a man who escaped persecution in a Middle East country, and had an intense stutter and was trying to make it in an inner Sydney corporate job but was suffering from PTSD. Barristers can also often surprise me. I can’t tell you how many have said to me, well actually I am an introvert. And of course you think, well, why have they chosen this job?!

Voice is just one aspect of presentation. How does voice training help with the other aspects? Lawyers are trained to believe that all that matters is content. But in court your performance may be an essential part of what you are doing and equally important. Spoken advocacy is 50% performance and 50% content. The whole idea of finding your voice is about reconnecting with your free and persuasive voice. Most of us have lost connection to our authentic voice. It isn’t about a “stick on voice” or doing a Margaret Thatcher. She had to deepen her voice because the culture of the eighties was that a man’s voice was currency. Julia Gillard had to do that as well. For women at the bar, the culture is still patriarchal because the rules around voice are still patriarchal (although it is now beginning to change). Your voice is your expression of your thoughts and feelings through your body. So physical presence just comes with that. The body houses emotional, psychological and physical habits which affect the voice for instance, a tight jaw or tense shoulders. These require conscious change in order for the voice to have its natural expressivity and influence.

How important is breath for your voice? A key premise for the voice work is relaxation. This is then followed by freeing your breath. And then you look at voice. There is no point in even starting work on your articulation, for instance, until your body is relaxed and your breath moving, because your breath is what carries your voice out. So it is relaxation, breath, then voice, then amplify your voice (resonance) and FINALLY articulation. So to return to the beginning of this interview, speech is the last thing you do. There is no point in dealing with this if your jaw and tongue are tight and your voice is not working. This has to come first.

What other elements are important for you voice? I tell people to take their own time, breathe, take up more space internally and externally, connect to people.

It is not about the end. It is about the moments in the communication. The issue of confidence is really interesting. I tell people to remember their wisdom. What I mean by that is, because we are so bound by information, we forget that we have this whole body of instinct and time we have done on this earth that could speak really well for us. That is the real core of leadership. Let this wisdom inform what you say and in that is true confidence.

What are the top five mistakes that we can make? 1. Forgetting to breathe – this is number one 2. Don’t apologise. Raising your voice at the end of a sentence can be partly apologetic. Another way of unconsciously apologising is to hold your head to the side or look down and under. 3. Don’t race to the end of your idea. 4. Don’t assume that your audience is listening. 5. Not realising that your audience is not engaged and failing to treat it as a conversation. What is the Echo Project? This is something I have been really passionate about for a long time. I am constantly working with people who have a voice in the world but I really want to help or give voice to people who don’t have a voice in the world. I have people lined up for interviews such as Tara Moss who has written a book about sexual violence called Speaking Out, Christine Dolan who campaigns against human trafficking, BBC journalist Yalda Hakim, who written about the recent refugee crises and Rosie Batty, Australian of the Year 2016 and a campaigner against domestic violence. I am going to interview them about what having a voice means to them as advocates. This isn’t a missionary approach – I am not trying to do an Eliza Dolittle on anyone! All I am doing is giving another channel to communicate their ideas. It burns me that people don’t have a voice. For more information about the Voice Master Class with Lucy Cornell, please visit the Events section of our website (www.nzbar.org.nz) or contact us on (09) 303 4515.

LexisNexis Practical Guidance – District Court Litigation By Jacqui Thompson BA LLB (Hons)* NZBA members who have signed up to the LexisNexis e-library not only have access to an incredible range of online databases via a single search portal, but they also can use the Practical Guidance suite of products. This article outlines the advantages of Practical Guidance, including a simple way of using the modules to access the more in depth research from the e-library. For more information on either Practical Guidance or the e-Library Package supplied by LexisNexis, please contact the NZBA’s account manager, Matt Pedersen (contact details at end of article). The LexisNexis Practical Guidance products were launched in the UK in 2009, where they quickly took off and then introduced to the Australian and New Zealand markets. Since their introduction, the suite of products in New Zealand has expanded to cover a range of practice areas including; Business Law, Criminal Law, Employment Law, Family Dispute Resolution, Family Law, In-house Counsel, Resource Management Law, Employment Law for Employers, Trust Law, Succession Law, and Property Law. The Slave Free module is a free resource to anyone providing legal support to victims of human trafficking. The latest offering is the District Court Litigation module, which this article focusses on. However, if you want to see how this product is likely to grow over time, it may be worth viewing a more established product such as the Family Law or Resource Management modules.

Fast, Practical Answers The Practical Guidance products are aimed at giving short answers to practical problems. They are a way of quickly finding out more about an area that you may not normally practice in, or are only just starting out in. They also allow you to stay current with legal changes in your own area. This is very much a quick answer tool. It is not a replacement for in depth research, but instead offers a fast answer to the “what do I do next” question. It does, however act as a gateway or a portal to further research. Links within the modules then take you into the more in depth research available

on LexisNexis online databases. There are also quick links to relevant external sites to save time, e.g. modules often include foreign case law and other material where relevant. The modules give the user access to a guidance notes, commentary that links to some of LexisNexis’s leading texts, checklists, precedents, forms, cases and legislation. There are options to search each of these individually or search across the range.

The Home Page – single access point. Many databases require you to go into different screens to look for various types of information. Practical Guidance has aimed to make navigation as simple as possible. The home page is set out as a single control panel. All options available for accessing material are clearly and sensibly set out on this page. The different

options are: • Browsing by topic (see image); • Searching across District Court Litigation for a specific terms or cases using the search field at the top of the page; • Limit your search to a particular type of material - guidance, cases, commentary, legislation, forms and precedents and legal updates; • District Court Litigation Toolkit (this contains a Comparative Table of the District Courts and High Court Rules); • Checklists; • Precedents; • What’s New in District Court Litigation – for keeping up to date on changes and latest case law.

Simplicity in searching If you are not a confident keyword searcher, you can select the Browse Topics option. Broad topic areas are broken down into subtopics. When you click into a subtopic, you are taken to an overview of the area. Clicking on the next tab will then give you commentary (or you can go straight to case law or legislation etc by clicking on those tabs). However, searching by using keywords and connectors can repay your efforts, even at the most basic level. For example, if you are wondering about costs in relation to a proceeding that you believe is an abuse of process, the very simple search of costs w/p abuse (costs in the same paragraph as abuse) will immediately take you to relevant commentary and case law. If you aren’t confident about using connectors, there is a link to instructions on how to do this beside the search boxes. In fact, the LexisNexis help screens really are deserving of a separate mention. Many people assume that it should be clear from simply looking at a screen how the various features of a database will work. While

the Practical Guidance modules have worked hard on simplicity, they have extra functionality that it is worth taking some time to learn about. The help screens are excellent in terms of their content and layout. If in doubt, use them.

Immediacy and practicality in one place In summary, this suite of products is about immediacy and practicality. It is about giving you the answers when you need them and in a way that you don’t have to search for them too hard. They are comprehensive (subject to developing the product over time), navigation around the modules is straight forward and information is presented in a simple format. There are options for emailing, printing and downloading information. The help modules are useful and clearly set out. The products are useful tor those who: • are starting out in a particular area of law; • practise primarily in a particular area but need to refer to another area on occasion (for example, a relationship property issue may arise when considering a commercial issue); • practise across a wide range of practice areas, such as general civil litigators or sole practitioners; • need fast access to information such as when in court or at a meeting; • find online research difficult to navigate and want a simple gateway to get them into the research quickly and at a point that they want to be at, while still being able to drill down to a more in-depth level. NZBA Members can find out more about the Practical Guidance modules by contacting Matt Pedersen at Matthew.Pedersen@lexisnexis.co.nz or tel (64) 21 860 207. * Aside from her work with the NZBA, Jacqui Thompson is a legal researcher for lawyers on most areas of law. Jacqui is often asked to test new information products.

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Flow and Expertise By Dr Sven Hansen To understand flow, recall the last Cricket World Cup semifinal. Grant Elliot hit a six and took New Zealand to the final. When asked what was in his mind when he hit the ball, without hesitation he said: “NOTHING.” Studying 5000 executives, consulting firm McKinsey show that executives in flow are five times more productive. If we could nudge time in flow up by 20%, team or workplace productivity would double.1 As a barrister, when did you last experience that deep, totally focused state of excellence? Time disappeared and you felt absolutely at the top of your game. The concept of flow is not new but the science that supports it and the application to business is flourishing. Flow is a biological state engaging body, heart and mind in a performance of advanced skill in the face of significant challenge. It is exceptionally effective and deeply nourishing. We can all learn how to get more flow in our work.2 In our overloaded jobs the reality is that excessive arousal, anxiety and worry leave the mind full of unhelpful thoughts, the emotions uncomfortable and the body compromised. The pressure of the challenges squeezes out self-care and preparation for performance. The harder we try the more elusive flow becomes. Current research3 shows that in flow the thinking mind or prefrontal cortex is quiet. We call this hypofrontality. The brain works much faster in execution of tasks and the body operates in a fluid, effortless state. The combination of serotonin, adrenaline, 1 2 3

dopamine and anandamide is a natural cocktail that no drug can offer. So here is the question: why do so many of us struggle to find flow in work? Studies estimate the average worker spends 50% of his or her time disengaged from the task at hand. Studies also show us that at least 40% of people struggle with chronic symptoms of distress. The first issue is resilience failure, which has triggered the flood of safety and risk consciousness. The second issue is that we have neglected the science of performance enhancement. This is the focus of this article. It is extraordinarily neglected given the pressure to perform. If you ask elite performers how much time they devote to performance versus practicing for performance, you will discover that about 80% of energy and time is devoted to the deliberate practice required to lift performance. As professionals many of us forget this once we qualify. We live in the delusion that we can perform at 100% output for 12-hour days. Any high performance sports director would need only a moment to recognise a ludicrous situation. The way a well performing business functions would destroy a sports brand. The answers lie right in front of us, yet we are too busy or too afraid to look at them. Take a moment to slow down, consider an alternative and imagine being devastatingly effective in short bursts of transformative action. Here are the key steps you must follow: 1. Start with your life and remember times when you were in flow – sports or hobbies are a good starting point. Then carefully explore where in your workday, week, or job that you are achieving flow. It can be humbling. The founder of flow, M. Csikszentmihaly suggests that only 20% of us achieve flow. In his eighties now, he is still researching and presenting at conferences around the world. 2 Categorise a day’s activity into each segment of the flow diagram. This will give you a clear understanding of what is putting you in flow and what is not.

Cranston, Suzie and Keller, Scott Increasing the Meaning Quotient of Work McKinsey Quarterly, Jan 2013. Duhigg, Charles Smarter, Faster, Better (2016) Kotler, Steven The Rise of Superman (2014)

with devastating effectiveness. This takes deliberate, focused practice. Watch the experts, define the keys to their success and practice diligently. This practice is not comfortable and requires high motivation. 8. We are mostly overloaded, so you do need to pick your battles. Choose jobs that match your skill potential and will deliver impact and satisfaction. Pick some processes that you want to perfect and work on them. Others will quickly notice. Smart professionals learn to delegate the tasks and customer situations at which they are not brilliant. As a consequence they enjoy work and succeed.

Remember that flow, control and relaxation have well engaged skills and will deliver results. Some arousal is necessary for learning. Put the tasks of your role into two columns – those you want more of and those less of. 3. Lock down a daily discipline of reflection on where you have spent your day and begin to ask the hard question: where am I actually adding value? Further: what is making me invaluable? And finally: does this really matter to me? 4. Now you face a critical decision. Will you put your head back in the sand of the slightly uncomfortable known and “box on”? Or, will you select the promise of chasing flow? If the latter, be prepared for very hard work (on skill development) and fear (unsettling challenge after challenge). It is easy to understand why so many people take the safe road and seek comfort. Flow will ask you the hard questions.

9. Naturally, some tasks will be less challenging. Be sure to approach them in a calm and confident way (Relaxed). There are also situations that are very difficult. Getting anxious and worried will destroy your potential. We can only enter into the uniquely powerful state of flow when we relax into it. To liberate your skills into a task requires that you slow the brain down, alter your brain chemistry and ultimately think of nothing. When the thinking mind shuts up you have entered flow and will find your talents and skills fully absorbed in the experience. 10. Be reasonable. We cannot operate in flow all day. My recommendation is to select four tasks adding up to about a third of the day for flow. Make sure you spend a little time clearing your mind, moving, relaxing and visualising these tasks. When you engage give it everything and hold your course.

11. Each time you are interrupted it can take up to 30 minutes to get back to flow. After flow take a break, rest and celebrate. Treat your fellow workers with respect when they are focused. Let them 5. Chunk up the challenge. In the diagram above, Grant finish before you interrupt. Organise flow work in a Elliot entered the outer edge (top right) of macro-flow distraction free environment. but we can edge in at the base of the flow state (50% challenge and 50% skill). We call this micro-flow. 12. Get serious about your self-care. Stay fit, lock in This is a safe way to start for those not willing to your sleep, eat well, learn relaxation skills and take time confront catastrophic failure. We have to coach to master your thoughts and emotions. This is resilience. ourselves or get some help. 6. Define the work in your job that is both challenging and meaningful. The challenge needs to be uncomfortable. Some suggest that it should be placed about 4% higher than your current skills allow. Lifting the challenge will cause you to spend more time in the top half of the graphic. Top left is anxiety provoking. 7. Now we must define the skills required. What will it take to develop the skills you need to deliver a brilliant outcome? The answer is very deliberate practice4. It is helpful to play to our skills but you want to be sure that you have developed a skill mix at a level of proficiency that “hits a six”. Some hack their way through 24 balls to get a few runs. The flow expert hits one ball

Peak, Anders Ericsson, 2016

Mindfulness – a Competitive Advantage By Geoff Mercer Mindfulness. You probably have heard of it, and if you haven’t then chances are you soon will. If you have heard of it you might associate it with stress reduction and better health. There is certainly truth in this; studies have shown that Mindfulness can help reduce stress, improve immune function, blood pressure and heart function and lessen or overcome depression.

attention in the present moment, in a particular way, on purpose and without judgment”. For those new to Mindfulness this definition does not convey the real experience and practice of Mindfulness. It is a bit like describing Charlie Sheen as “an American actor and celebrity” – accurate, but missing out so, so much.

What you might not know is that Mindfulness is also being successfully used as a business tool, a practice that increases productivity, product quality, job satisfaction and, ultimately, profit. This is why, as Bill George, Professor at Harvard Business School, says:

Quantifiable Benefits The results of Mindfulness programmes in business have been quantified. One major U.S. corporate claims that Mindfulness training for its staff contributed to an annual reduction in health costs of US$2,000 per employee and an increase in productivity of one hour per week. Others report a improved work environment aiding staff recruitment and retention and some firms have extended their adoption of mindful practices to their relationships with their customers, increasing sales and customer loyalty as a result.

“The use of mindful practices … are taking hold at such successful enterprises as Google, General Mills, Goldman Sachs, Apple, Medtronic, and Aetna, and contributing to the success of these remarkable organizations.” and why Ariana Huffington of the Huffington Post says: “There’s nothing touchy-feely about increased profits. This is a tough economy. Stress reduction and Mindfulness don’t just make us happier and healthier, they’re a proven competitive advantage for any business that wants one.” Mindfulness is well suited for legal professionals where the core of our business is how we use our minds. I have been a barrister for over 20 years, and for 15 of those years I have been exploring the world of meditation and Mindfulness and bringing this back into my professional life with positive effect.

What is Mindfulness? If you Google Mindfulness, you will find a plethora of newspaper articles, books and videos explaining Mindfulness and how it has become part of the current commercial world. You will see that Google itself, and other companies like the ones mentioned above, use Mindfulness and have their own in-house Mindfulness programmes. If you want a simple definition of Mindfulness it is “Paying

In practical terms, Mindfulness is a catchall word for the practices that allow us to take greater control over our own mindset and, as a result, be more productive and satisfied at work with less stress and other negative consequences. Mindfulness is not just a feel good strategy or one more thing to do, it is simply learning to do what you already do in a more productive and effective state of mind.

Where did Mindfulness come from? The growth in Mindfulness is an indirect result of developments in medical and neuroscientific technology. Until relatively recently the prevailing view was that the human brain was a fixed quantity comprising brain matter that degraded over time. In the 1980s and 1990s technology advanced and CAT, PET, MRI and fMRI scans began to provide more accurate images of the living brain. These revealed that our brain was not a fixed quantity, but like other parts of the body, it could grow, shrink and change according to how we used it and what was occurring around it. This new model of brain function and growth is called neuroplasticity. In 1992 Richard Davidson of the University of Wisconsin, a scientist and a meditator, combined his interests and conducted fMRI scans on Buddhist monks to study the effects of meditation on the brain. The results of these experiments, and others like it, showed changes in the physical and electrical structure of the brain that impact on our ability to be happier, healthier, more focussed and less likely to be hijacked by emotionally driven or other unproductive states of mind.

By then Mindfulness was also already being used successfully in a clinical setting for stress reduction by Dr Jon Kabat-Zinn, an MIT graduate, and Harvard psychologist, Dr Ellen Langer, was writing papers and conducting experiments showing the benefits of Mindfulness on psychological and physical health, and on reducing the negative effects of ageing.

The Growth of Mindfulness In 1981 Roger Fisher and William Ury published their bestseller, Getting to Yes, which resulted from the Harvard Negotiation Project and revolutionised negotiation and conflict resolution. The book encouraged a new mindset and popularised negotiation basics such as ‘separate the people from the problem’ and ‘focus on interests, not positions’. This then flowed through to the growth of mediation which, in New Zealand, established a firm foothold in the ‘90’s and is now ubiquitous in our litigation practices. Like the approach in Getting to Yes, Mindfulness is all about changing our mindset and perspective to improve what we are already doing. The conflict resolution techniques and practices espoused in Getting to Yes were, even in 1981, not new for many experienced negotiators. However, the book sold 3.5 million copies and still sells around 3,500 copies a week. Why? Perhaps the answer lies in the coming together of three factors: • It was based on the empirical experience and the countless hours of practice by the authors • It had the imprimatur of Harvard University and a credible scientific and analytical approach • Its conclusions were translated into simple practices that were accessible to anyone and that, when used, created productive and profitable change in mindset and attitude. Move ahead to 2011 and these same three factors can also explain the recent exponential growth and popularity of Mindfulness. There are now practitioners of Mindfulness in mainstream medicine and science who have had considerable practical experience; Mindfulness has scientific credibility and the backing of academics in highly respected institutions; and the practice of Mindfulness has been distilled down into some easily accessible techniques. Mindfulness is also part of the wider movement that understands that how we think and our mental attitude and perspective are the new frontiers of learning, work productivity, job satisfaction and excellence. Books such as Dr Carol S Dweck’s Mindset and Nobel Prize winning Daniel Kahneman’s Thinking, Fast and Slow have shown

that we are not as in control of our minds as we think we are, usually to our detriment.

How does Mindfulness work? Mindfulness works by helping us retrain our brains to pay attention in a particular kind of way. What we have our attention on defines our thought processes, actions and reactions. Often our focus and attention is driven by habit or other factors and we are not really as in control as we might think we are. Mindfulness teaches us to take control of our attention and to focus effortlessly on what is really going on around us. It heightens our perception of what we need to focus on and reduces the narratives, stories and distractions we so often unhelpfully create for ourselves. Mindfulness teaches us to remove mental obstacles such as worry about outcome and the future or being bound by or regretting the past. Most importantly it teaches us to change our state of mind without having to think about it - as when we most often need to be mindful is when our thinking is under pressure. Getting started A significant advantage of Mindfulness training is that it can be delivered in a way that is compatible with our work life and professional practice. Training programmes typically involve a series of facilitated sessions where Mindfulness practices and techniques are taught and where you will learn to integrate Mindfulness unobtrusively into your day to day life. The purpose of these sessions is to provide a repeatable experience of Mindfulness that you can access when you need it. Mindfulness training does not require any previous experience and nor does it require you to take any significant time out. You should look for a training programme that is convenient for you, in terms of both time and location. As to when you should begin, well, it is axiomatic with Mindfulness that there is no time like the present. The last word should perhaps go to Daniel Goleman, author of the well known book Emotional Intelligence who says in his more recent work Focus, the Hidden Driver of Excellence: “While the link between attention and excellence remains hidden most of the time, it ripples through almost everything we seek to accomplish”. * Geoff Mercer is a barrister and a Mindfulness trainer at The Now Project. He provides training to professionals and businesses through training sessions, workshops and in-house programmes. www.thenowproject.nz

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Winter Wellbeing By Nicola Smith Sovereign Healthy Living Expert, Nicola Smith, shares her tips for maintaining wellbeing during the colder months Today’s fast paced world, with pressing commitments and high stress work environments, can take its toll on our emotional and physical health and as winter rolls in our bodies face additional pressure. While a flu shot and cold & flu tablets can help ward off winter sickness, there are a few natural and free health and wellbeing tips that can be easily implemented into a busy regime that will support your body and prevent winter illness.

Consume a diet high in antioxidants The key to beating winter colds and flu is to strengthen your immune system, and the best way to do this is naturally through your diet. Antioxidants, found mainly in fruits and vegetables, help prevent cell damage by counteracting the effects of free radicals. They’re really the first line of defence for the body to keep free radicals under control and are also vital in the repair of damaged cells. To ensure you’re consuming foods that will support your immune system, it’s important to eat five serves of vegetables and two serves of fruit a day. Flavonoids are especially important this time of year, due to their rich antioxidant and anti-inflammatory properties. Foods like apples, blueberries, parsley and cacao are ideal sources. Incorporate seasonal, fresh produce of varying colours to ensure you’re getting a variety of nutrients.

Keep moving Several studies have found that regular physical activity reduces the amount of sick leave for people, particularly during the winter months. This may be due to neutrophils (white blood cells) increasing in numbers after exercising, keeping your immunity strong. While it’s important to do moderate exercise every day, don’t push it too hard. Overly strenuous physical activity can actually decrease the neutrophils’ ability to destroy microbes. In addition, an increase in cortisol, our stress hormone, can actually weaken the immune system, leaving you vulnerable to illness.

Increase your vitamin D levels For many of us, our busy but sedentary lifestyle stuck behind a desk, has resulted in a large proportion of the adult population becoming vitamin D deficient. This takes a drastic toll on our health including our skin health, immunity,

heart function, bone health and mental wellbeing. The best source of vitamin D is the mid-day sun, but in winter unfortunately the sun is often too low to get adequate amounts. The next best thing is to get the nutrient from our diets. Foods rich in vitamin D include fatty fish such as salmon, tuna and mackerel. Eggs and mushrooms are other good sources for those who don’t enjoy fish. There are also lifestyle changes you can make to increase your vitamin D levels. Losing just 5 percent of your body weight, can raise your levels of the nutrient along with increasing your daily movement.

Squeeze in some sleep Studies show people who don’t get enough good quality sleep, are more susceptible to getting sick after coming into contact with a virus such as a cold. This is largely due to a decreased production of cytokines, proteins needed in higher quantities during infection or inflammation, or even at times when you’re under stress. Being sleep deprived will reduce the production of these protective proteins, affecting your body’s ability to fight illness. In addition, research has found a lack of sleep stimulates the immune system into action, which reflects the same physical response shown during periods of stress. This can result in serious immune system impairment leading to an increased risk of disease. Simple steps like a well-balanced diet free of processed foods, regular exercise and quality sleep are your ultimate protection against winter colds and flu. These easy, natural lifestyle choices are all about prevention and maintaining good health right through the chilly season.

About Nicola Smith Sovereign Healthy Living Expert, Nicola Smith, is a Personal Trainer and Nutrition & Lifestyle Coach who has been involved in the wellness industry for almost 15 years. With a passion for helping Kiwis achieve real health and functional wellbeing, through the food, movement and lifestyle choices; Nicola supports Sovereign’s mission of motivating Kiwis to take charge of their health and wellbeing. Nicola holds the following qualifications: • BPHED, University of Otago (Double major exercise prescription and sport science) • Chek Holistic Nutrition And Lifestyle Coach 2 • Functional Diagnostic Nutrition Practitioner

Ten Tips for Using LinkedIn By Jacqui Thompson* 2. Check your privacy and settings On the top right of the LinkedIn screen is a circle with your profile picture in it. Click on this for a drop down menu. The second to last item on this menu is privacy and settings. Take some time to go through each of the three groups of settings: account, privacy and communications. In the privacy section, for example, there are questions about sharing data with third parties. You may also want to set up a two-step verification to increase security on your profile.

LinkedIn is used by over 433 million people globally, and more than one million people in New Zealand, to create an online business profile and to manage their reputation. It is often a key step for people when checking on prospective business contacts. LinkedIn has moved from being a marketing advantage to being a professional necessity. If you can’t be found on LinkedIn, it can create a negative impression. Equally if you can be found, but your profile is limited, it can look less than professional. LinkedIn has done a fair amount of work to make the platform easy to use. If you have created an account but you aren’t a regular user, here are some quick tips to bear in mind while working on your LinkedIn presence.

1. Check your notification settings before you start doing any work to your profile. When you are making changes to your profile, you may not want your network to be notified of the change, especially if you are simply correcting a spelling error. When selecting the edit mode, on the right hand side of your screen, change “Notify your network” to NO. If you have made a significant change (won an award etc), you may want to notify your network. You can do this by posting an update or, more obliquely by changing the notify your network setting to YES and resetting it to NO later. But consider first the benefits of sharing a post. This is likely to get more attention from your network.

3. Customise your public profile URL In the privacy settings there is a heading “Edit your public profile”. One of the options in this section is to customise your public profile URL to include your name or you practice’s name instead of random numbers. For example, change https://nz.linkedin.com/in/123456 to https://nz.linkedin.com/in/ghostbusterlitigation. 4. Complete as much of your profile as you can Your profile is not a resume or a CV of your historic work. It is about what you are doing now and is your opportunity to let people know what services you offer, as well recommendations as to the quality of your work and any accolades you may have received for that work. Your profile should be content rich. That doesn’t necessarily mean long or wordy and in fact that would be a mistake. But it should have relevant information about what you do and what makes you different. Use key words and phrases in describing yourself that will increase your visibility in searches, and use the language that your potential customer/client might use – for example, “divorce lawyer” (rather than relationship property lawyer), or “leaky building lawyer”. This isn’t an exact science as language changes so quickly, so you may need to experiment. Your profile should include at a minimum: • Summary: Make this descriptive, written in first person and concentrate on what you are doing. • Experience: Set your current position to the top of your list. Be relevant in what you show of your past experience by emphasising the roles that back up the areas in which you want to grow your business. • Skills and expertise: Ensure that the skills are ones that you actually possess. If you are a family lawyer, don’t claim expertise in intellectual property if you don’t have that. • Honours and awards: Some of your honours/ awards may not seem very relevant to your business

but they say something about the kind of person you are. They may speak to your tenacity or your creativity. They may also create a subconscious connection with someone who is looking at your profile. • Education: if you are starting out in your career, this is particularly important, because those you have studied with will go on to become tomorrow’s decision makers and be able to refer work to you.

5. Be genuine Be confident about your skills but be honest. Don’t over inflate or exaggerate – it can lead to a reputation for being less than up-front. Another issue is endorsements. These are generated automatically and depend on the endorser selecting suitable areas to endorse. Don’t accept anything that is not accurate as this may actually create a negative reaction.

links (people who are too remote from what you do) may not be useful at all. Ensure that you have a relevant network. As with everything you add online, your contacts say something about you.

8. Google yourself regularly LinkedIn pages often appear on the first screen of Google searches. Check how visible you are by doing a series of searches on Google. You may need to change or add keywords to increase your visibility. 9. Add your company page and keep it up to date Company pages are a good way to share content and add value to your network. You will stand out from others on the network. While content is critical, think also about adding visual content to your company page. Sometimes, it is all about the pictures...

6. Get recommendations from current or past contacts One of LinkedIn’s features is that it builds trust through recommendations. If you have worked with someone and done well, ask them to recommend you. You can review the recommendation before accepting it on your profile.

10. Save time - Integrate with your website. Most small businesses now use content management systems to manage their websites. Alternatively, you may have standard templates. Often there is an option to post updates to LinkedIn or other social/business media sites. If you have added an article or a news update to your website, click on the Share button and add it to your LinkedIn feed.

7. Connect In general, the bigger your network, the better. Each time you connect to someone, you also see their contacts. There may be people listed who you want to connect with. Ask your contact to introduce you. However, weak

* Jacqui Thompson is the NZBA Training Director and newsletter compiler. Jacqui has worked on improving LinkedIn profiles for several NZBA members and lawyers in law firms.

Petrol Head’s Corner By David O’Neill With his never ending devotion to finder the perfect car for NZBA members, Treasurer and Newsletter chair, David O’Neill, once again sacrificed himself to the Association and test drove two new vehicles – the Audi Q7 and the Landrover Discovery Sport.

The Audi Q7 I was offered the opportunity of taking the new Audi Q7 away for a weekend. Having been an owner of an Audi Q7 for a period of seven years, I felt that I was in a good position to compare the two vehicles. The first thing that was noticeable from the spec sheet was that Audi had put the Q7 on a diet. It has lost 240kg. Apparently 41% of the vehicle is now alloy. The car I got was a 3 litre turbo diesel putting out 200kw and 600nm of torque. Coupled with the Jenny Craig weight loss it was pretty rapid.

Looks An Audi Q7 look is an acquired taste. I eventually grew to like the one we owned and the new one is a sharper, slightly boxier version of the old Q7 look. It sits lower (but this one had air suspension so that may account for that) and is slightly shorter but appears to be wider. Personally I think the new look is better. It’s still hard to make something that’s as large as an aircraft carrier look handsome or pretty (depends on how you look at them I suppose). To put it another way – look at its competitors – hardly a lineup of the finest looking motor vehicles in the world…… Space Like the old one, this Q7 swallows enormous amounts of luggage and bits and pieces. You could throw the golf clubs in, the dog, the kennel, in fact anything you want, and still be able to seat five adults comfortably. The third row of seats can now cater for much larger people. I didn’t pop the back seats up, but my understanding is

the floor is the same height as the floor in the rest of the car. You will notice I said “car”. Driving it was like driving a much smaller vehicle. It actually felt similar to the Audi Q5 to drive. It is remarkable how such a big vehicle can feel small when you go round a corner. Where the old one used to lurch around a corner, this one felt tight and very settled on the road.

Speccy Bits Price as tested $151,000 Six cylinder Three litre turbo charged diesel Power – 200kw Torque – 600nm Transmission – eight speed The other thing I noticed from the spec sheet given to me by the Audi dealer was the towing weight. This thing can pull a 3.5 tonne load which would resolve any issues you had with your boat or caravan or boat/caravan together.

Performance Given the increase in power, torque and decrease in weight, this vehicle is a great deal more responsive and quick up to the speed limit (and beyond) than the old one. I was told by one of the Audi staff members that it was .1 second behind the earlier version 4.2 V8 diesel in acceleration times 0 – 100km/h. I fully believe it! Apparently there is a lower powered version coming out (160kw). Frankly, why bother? Furthermore, if they do put out a V8, then I can’t see the point. All you would be doing would be increasing fuel consumption, lightening the wallet when this particular version goes as well as the old V8. Equipment It came loaded with features which more than ever show that the driverless car is just round the corner.

sports air suspension which is very handy, particularly given that it settles the car comfortably through corners. As per usual, the option list is fairly long and fairly expensive. To be frank, a lot of these options would be great but I don’t know whether they are entirely necessary. Generally speaking the car was well kitted out with plenty of goodies to keep you occupied for a long time. I didn’t check up on fuel consumption too carefully, but I’m pretty sure, given the Coromandel hills, that it was able to get over and back from the beach on the other side of the Coromandel hills at under 10 litres per 100km. That’s impressive for such a large vehicle. This version had the “lane assist” feature, together with a cruise control which decelerated and accelerated according to where you were in the traffic. At one stage I drove for about 15 kilometres with my fingers lightly on the steering wheel and without touching the accelerator or brake. This was on the open road and the vehicle kept up with the traffic, decelerated when it had to and accelerated when it had to. The lane assist software made sure that it stayed within the white lines on the road and would nudge the car back towards the middle of the lane if it drifted. I’m sure it’s sooner rather than later that we’ll be looking literally at being passengers in our own vehicles.

Other Features There was one button which intrigued me on the dashboard which was a button with a steering wheel and the letter P beside it. Foolishly I was sitting on the new lawn at the beach, touched the button at which point the wheels spun violently to the left and asked me where I wanted to park the car. As you can imagine, with such a large car and huge tyres, the lawn didn’t take this very well. I quietly disabled the feature and snuck back inside. Apparently, this is the park assist feature which comes standard and will park the car for you, nose first, tail first or even parallel park in the city. It’s a pretty impressive feature. Coupled with all the other inevitable electronic wizardry which accompanies cars of this nature is the usual Bluetooth telephone, music and the like. I’ve been talking about the keyless entry and how it’d be great to be able to walk away and the car locks itself. Audi have almost got there. If you hop out with the key in your pocket and shut the door, you touch the door handle and the car locks automatically. The car I had was fitted with the S line package which is flasher bumpers and bits and pieces. It did have the

This car is a huge improvement on the old Q7 and whilst not cheap, would be fantastic for lugging around the kids, family dog, boat, caravan and anything else you wanted to latch on behind.

Land Rover Discovery Sport Si4 SE Land Rover NZ organised a Land Rover Discovery Sport to be sent down to Hamilton for me to review. It was delivered to the local dealer, Duncan & Ebbett, and I duly picked it up. These come in a variety of colours and the vehicle I had was known as “Phoenix Orange”. I am not sure where they get their names from, but the one that sprung to mind when I first saw it was – striking! It’s one of those colours which you either love or hate – there is no middle ground. You can make your own mind up from the pictures as to whether you like it or not. Some people loved it and thought that it went well with the black wheels, black accents and black glass and others wouldn’t have a bar of it – your call! I am sure Land Rover would paint it other colours if you really wanted it. The car I was driving is $100,800 as kitted out. This included the extras such as xenon lighting, third row of seats, black accents, black headlining inside, folding mirrors, privacy glass and electric seats. The base price for this version is $89,500.

Speccy Bits • Drive train – 4/2 wheel drive. It switches between the two automatically. • Motor – 4 cylinder 2 litre petrol with turbo. • Torque – 340nm. • Acceleration – 0 – 100km/h - 8.2 secs. • Towing capacity – 2 tonne. Once you got past the colour (no - I really didn’t like it), this was a very impressive motor vehicle. It’s the replacement for the Freelander and better looking, in my view. It’s much bigger inside than it appears, sort of Tardis - like. It doesn’t look huge on the outside but it can swallow people easily. It had the optional third row of seats which could take two relatively small children. I doubt whether an adult could get in there, unless they could do the Houdini thing and fold their legs around their ears. The middle row easily accommodated adults. It had all the goodies expected of a car of this price range. There was the usual keyless entry, keyless start, power tail gate, blue tooth everything, sat/nav and power seats. You have to love the keyless thing. Walk up to the car and touch the door handle and it unlocks. Hop in and push the start button and it starts. Touch the button at the back for the power tailgate and it unlocks and slowly rises out of the way – all the while with the key never leaving your pocket. It’s a nuisance having to get the key out to lock it…… One of the surprising features about this was the automatic transmission which had 9 speeds! There is a manual 6 speed option available in Diesel only. The transmission changes on the auto were almost imperceptible. If you wanted to slip it into sport mode or use the paddle shift then that was fine, but I found overall there wasn’t much of a need for that. Being a 4 cylinder, 2 litre motor, I found if it was pushed too hard it got a little breathless towards the top end of the rev range. However the motor pushed the car along easily. In fact it’s amazing what the boffins can wring out of these small motors these days. Like all cars in this category/price range, they have very similar features and it often comes down to a question of degree or affinity. Bluetooth, sat/nav, power tailgate etc. are expected to be there as standard. Land Rover hasn’t disappointed in this respect. One of the funny aspects was the lack of gear stick. Even with computer controlled gearboxes and what have you, I still expect to see a gear stick, if only to rest my left hand on. On this car a rotary button rose out of the transmission tunnel (1 cm high) when you started the car and you turned it like you would turn a knob. Every so often when I put my hand down to rest on top of the gear stick it wasn’t there and I found that slightly disconcerting.

The boot was much bigger than I would have expected for a car of this size. It was certainly taller than the Q5 that it sat beside in the garage. It gave extra headroom and certainly the passengers (the little darlings) were quite comfortable on a trip. On a personal level, I found that it didn’t handle as tautly as I would have liked in the corners and the steering felt a little bit light at times. By the same token, that’s more than likely to be a personal preference rather than any fault of the car. The list of optional extras isn’t long because much of it is already standard with the vehicle. This car has as standard power adjustable heated exterior mirrors, heated leather seating (in front) and 10 speaker stereo system and has as the optional extras xenon lighting, third row of seats and fixed glass roof with power blind running the full length of the car. One of the interesting features about the vehicle was it had USB ports everywhere. Clearly Land Rover have figured that the coming generation of families will all be carrying iPads, iPods, iPhones and every other sort of conceivable device that is powered through a USB port. There were even USB ports in the rear of the car for the youngest members of the family consigned to the third row of seats. This car is aimed at the same mid-range SUV market that is currently inhabited by the Audi Q5 and Volvo XC60 range of vehicles. It is very economical. Even the petrol powered version that I had returned 8.3 litres per 100km in and out of town, according to Land Rover. The diesel runs on the smell of an oily rag. It isn’t a small vehicle. It’s 4.6m long and 1.7m high. It would comfortably carry 5 big people and 2 little ones or various mix’n’match combinations. It’s no rocket ship. But then again you wouldn’t expect it to be, given the size of the motor, and its performance figures reflect that. By the same token, it got along reasonably briskly which I suspect was probably helped by the 9 speed box. I think it would be an able competitor and definitely a worthy alternative to the Audi and the Volvo. At the end of the day I think these cars/SUVs come down to the affinity the prospective purchaser may have to that marque and how they like the look of the vehicle. Some love the Land Rover and hate the other two and vice versa. Having driven the XC60, the Q5 and now the Discovery Sport, I know which vehicle I would like but then again, that’s a personal preference. I think there is very little which separates these three in this particular market. Don’t discount this Land Rover Discovery Sport. It is an option in this Euro market well worth trying out.

Mastering Cross-Examination Workshop In April 2016 we re-ran our Mastering Cross-Examination Workshop in Wellington. An account from one of our witness’s of the day can be found below. We had an amazing faculty and would like to take this opportunity of thanking the following judges and coaches: • Hon. Justice Helen Winkelmann • Hon. Justice Brendan Brown • His Honour Judge Nevin Dawson • His Honour Judge Craig Thompson • His Honour Judge Thomas Broadmore • Judith Ablett-Kerr QC • Peter Churchman QC • Kate Davenport QC (Course Director) • Jonathan Eaton QC • Dr Jim Farmer QC (Webinar presenter) • Richard Fowler QC • Stuart Grieve QC (Webinar presenter) • Chris Gudsell QC (Course Director) • David Laurenson QC • Robert Lithgow QC • Trevor Shiels QC • Terry Stapleton QC • Les Taylor QC • Nick Chisnall (General Counsel, Public Defence Service) • Pauline Courtney (Crown Law Office) • Peter Davey (Chair, NZBA Training Committee) • James Rapley (Criminal Stream Director) • Craig Stevens (Barrister) • Christopher Stevenson (Barrister) • Liesle Theron (Partner, Meredith Connell) We would also like to thank the Junior NZBA and PDS members who participated as witnesses and some of whom were without doubt extremely difficult to manage (as instructed to be)! • • • • • • •

Analiese Boston PDS Cassandra Kenworthy Barristers.Com Kimberly Lawrence Terrace Chambers Tiho Mijatov Stout Street Chambers Alice Osman Stout Street Chambers Jacquelyn Thompson PDS Vhari Thursby PDS

We would also like to thank our participants for the commitment they showed to the workshop. We received extremely positive feedback from our participants and the course is best summed up in the words of one of those participants: “...it is without a doubt the best course I’ve done in my career... [It] was exceptionally well run – excellent ratio of participant to coaches; excellent placement with litigators of similar experience, very well structured and run presentations and very high calibre coaches and judges. A very BIG thank you and I look forward to

the next one (being stuck at the bottom of the South Island the course is also a very good networking opportunity).” Clare.

The Witness’s Experience – Kimberly Lawrence, Terrace Chambers As a junior barrister, I was invited, along with three other juniors, to play the role of a witness at the NZBA crossexamination workshop in April. None of the four of us acting as witnesses had appeared in Court yet, so being on the receiving end of a crossexamination sounded like an excellent way to get a feel for what good trial skills looked like, without actually having to attempt it (yet) ourselves. Each session had four participants, each of whom had fifteen minutes to conduct a cross-examination in front of a judge and two senior faculty members. My room was judged by Judge Brown and critiqued by Ian Millard QC and Richard Fowler QC. Each participant received a thorough critique of their cross-examination in front of the room, then were taken out by a faculty member for a oneon-one discussion during the next participant’s turn. We played two witnesses; in the morning session a bank manager, and in the afternoon session a solicitor. Both had stories with about as much structural integrity as a piece of swiss cheese. This became even more apparent when the four of us sat down to discuss the weaknesses in our characters’ tales prior to the morning session. Nonetheless, having been told we were to be “robust” witnesses, I went off to my first session fairly confident I could withstand a bit of a beating. I was in for a shock. I sat down, poured a glass of water, and within about ten seconds of my first cross-examination my hackles were right up. I may have been a fairly average and thoroughly underqualified bank manager but I was not totally incompetent, nor was I dishonest as was suggested. After fifteen minutes of sticking doggedly to my story I felt disgruntled, dishonest, and thoroughly discredited. My cross-examiner was then critiqued by the panel, who proceeded to give a small demonstration. I couldn’t believe it; after fifteen minutes of toughing it out against a very good lawyer, Ian asked five simple questions, to which the only answers could possibly be “Yes”, “Yes”, “Yes”, “Yes”, and “Oh dear... Yes” and after which the biggest hole in my character’s story was illuminated. And he did it in such a pleasant, disarming manner! The day continued in much the same vein. I was crossexamined over two sessions by seven very experienced lawyers, and from time to time by Ian and Richard demonstrating. After both morning and afternoon sessions, the participants could ask questions of the faculty and the faculty could comment on their own

experiences of what is and is not effective in cross-examination or court generally. Having now a slightly better idea of what a good and an excellent crossexamination might look like, this was far more helpful to listen to than it would have been a day or two previously. However, what I found most useful was actually being on the receiving end - itâ&#x20AC;&#x2122;s quite intimidating! As the day went on I started to get a feel for which cross-examination styles put me on the defensive, and which ones put me at ease. (I would never have guessed previously that one could be at ease during cross examination, but it turns out itâ&#x20AC;&#x2122;s far less stressful and can create a false sense of security.

If I ever find myself cross-examined again my guard will remain up at all times.) At the end of the day the two streams, civil and criminal, convened for a demonstration. I was asked to play the bank manager once again in the civil demonstration, this time to be decimated by Les Taylor QC. I would suggest that if you are ever to be on the receiving end of a crossexamination by Les you might want the courtroom to be free of spectators! The opportunity to play a witness was invaluable. Having seen the quality and experience of the lawyers attending the cross examination-workshop I imagine it would be a number of years before I would have sufficient experience to really benefit from a workshop aimed at that skill level, so having the opportunity to attend as a witness instead was fantastic. It was also great to meet so many other barristers from around the country.

Sentencing Advocacy Competition 2016 By Rosa Polaschek, Judgesâ&#x20AC;&#x2122; Clerk, High Court The eighth annual Sentencing Advocacy Competition, presented by the Ministry of Justice and the New Zealand Bar Association was again hosted by the Auckland and Hamilton High Courts this year. After preliminary rounds held in both Hamilton and Auckland, and a semi-final evening in Auckland, the final round was held on 12 May in Courtroom 1. Competitors in the Sentencing Advocacy Competition are asked to carry out a mock sentencing exercise, with one acting as the prosecutor and one as defence, each seeking to use their advocacy skills to obtain the best possible outcome. In the final round, the competitors were faced with the difficult scenario of an 18 year old man charged with manslaughter as a result of a prank gone wrong, with road barriers placed on the road causing the death of a driver. The finalists, Jovana Nedeljkov for the Crown and Kyle Simonsen for the defence (both in their final year at the University of Auckland), made submissions as to the appropriate sentence. Their submissions were creative and compelling, showing a high level of advocacy and skill. To make it through to the final, they had successfully made submissions on grievous bodily harm offending carried out by a young girl defending her sister using a fondue fork, and aggravated robbery carried out by a young man at the instigation of his brother and mother. The finalists were whittled down from 24 competitors from Auckland and Waikato Law Schools. Justice Thomas presided over the finals. Her Honour has had extensive experience in presiding over sentencing

Hon. Justice Thomas, Jovana Nedeljkov, Kyle Simonsen and Clive Elliott QC

hearings, in her time at the District Court and the High Court. Her comments on the advocacy skills necessary in representing clients were very helpful, and demonstrated to the competitors and audience the particular value advocacy can have in borderline cases. After some deliberation, and commenting on how close the final competitors were, Kyle Simonsen was announced as the overall winner on the night. The competitors were also lucky to have Clive Elliott QC of the Bar Association in attendance to award their certificates and prizes. Mr Elliott also gave invaluable feedback on the quality of their submissions and how they could improve their oral advocacy skills. Having tips on mooting from the highest level is something all of the competitors commented on throughout the competition as something which made this particular competition a stand out competition amongst the others on offer at Law School. The organisers gratefully recognise the support of the NZBA, which provided the prizes.

2013-2014 COUNCIL CONTACT DETAILS

2015 - 2016 COUNCIL CONTACT DETAILS CLIVE ELLIOTT QC – President Ph: +64 9 307 1769 elliott@shortlandchambers.co.nz

PETER DAVEY Ph: +64 9 309 0475; Fax: +64 9 354 3850 peter@davey.co.nz JOHN DIXON Ph: +64 9 306 2775 john.dixon@shortlandchambers.co.nz

NEW ZEALAND BAR ASSOCIATION ANNUAL CONFERENCE 2016 16-17 September, Millennium Hotel, Taupo

The Art and Psychology of Advocacy CPD: 6.25 Hours

Speakers: Professor Maryanne Garry, School of Psychology, Victoria University Wellington (Keynote address) Hon Justice Winkelmann Hon Justice Venning Hon Justice Lang Hon Justice Clifford Hon Justice Davison Dr Jim Farmer QC Mary Scholtens QC Clive Elliott QC Lady Deborah Chambers QC

Frances Joychild QC Paul Radich QC Peter Castle Professor Chris Gallavin Dr Sven Hansen Brendan Horsley Jane Meares Dr Derek Johnston Rob Stevens

Topics: Memory and Testimony • The Unscripted Art of Cross-examination • The Forgotten Art of Re-examination • Commercial Barristers – Evidence of the Breadth of the Independent Bar • Trial Fitness: the Science and Practice • Access to Justice Update The NZBA Annual Conference is a great opportunity to hear from the highest calibre of speakers and to network with your colleagues. It also promises to be highly enjoyable as delegates will have access to a range optional activities.

JONATHAN EATON QC - Vice President Ph: +64 3 372 3466 j.eaton@bridgesidechambers.co.nz SIMON FOOTE Ph: +64 9 307 8784 swbf@simonfoote.co.nz LISA HANSEN - Vice President Ph: +64 4 914 1052 l.hansen@barristerscomm.com GREG HOLLISTER-JONES - Associate Member Representative Ph: +64 7 928 6202 g.hollister-jones@rhjl.co.nz DENNIS JENKIN Ph: +64 9 216 8531 djenkin@cschambers.co.nz DALE LESTER Ph: +64 3 366 1465 dale@canterburychambers.co.nz TIHO MIJATOV - Junior Barristers’ Representative Ph: +64 4 472 9025 tiho.mijatov@stoutstreet.co.nz DAVID O’NEILL – Treasurer/Vice President Ph: +64 7 839 1745 david.oneill@nzbarrister.com PAUL RADICH QC Ph: +64 4 974 5951 paul.radich@cliftonchambers.co.nz GRETTA SCHUMACHER - Junior Barristers’ Representative Ph: +64 9 309 1769 gschumacher@shortlandchambers.co.nz ALEXANDRA SINCLAIR - Junior Barristers’ Representative Ph: + 64 9 354 1403 asinclair@shortlandchambers.co.nz STEPHANIE THOMPSON - Junior Barristers’ Representative Ph: +64 21 294 8928 stephanie@smthompson.co.nz DEAN TOBIN Ph: +64 3 477 8781 dean.tobin@princeschambers.net JAMES WATSON Ph: +64 4 472 9025 james.watson@stoutstreet.co.nz