At the Bar March 2009

At The Bar

March 2009

Law-and-Order Dominates 2009 Legislative Agenda Tougher criminal laws, a major overhaul of the Resource Management Act, reviews relating to constitutional matters and work on new electoral laws are all on the Government’s legislative agenda for 2009.

The Government during the election campaign promised to take steps to reduce violent crime and make communities safer. Prior to Christmas it moved to implement those pledges by introducing to Parliament three bills as part of its Action Plan on violent crime. Bills toughening bail laws and increasing the sentences for crimes against children were passed before the House rose for the summer holidays. The Domestic Violence (Enhancing Safety) Bill, which will introduce on-the-spot protection orders to be issued by police officers, was given its first reading and referred to a Select Committee for consideration. It also provides for changes to bail and sentencing laws relating to domestic violence cases.

Further law-and-order changes are among the first pieces of legislation to be introduced to Parliament in 2009.

The Sentencing and Parole Reform Bill will introduce life sentences without parole for people convicted of murder who have previously been sentenced to at least five years’ jail for serious violent offences. In a background paper released by the National Party during the election campaign it was calculated that, if the policy had been in force since 2002, it would have applied to 10 people, including the Mt Wellington-Panmure RSA killer William Bell, Antonie Dixon and Graeme Burton.

The Gangs and Organised Crime Bill provides for extended police powers to undertake surveillance on gangs, beefs up local government powers to remove gang fortifications, and make gang membership an aggravating factor at sentencing.

The Criminal Investigation (Bodily Samples) Amendment Bill will expand the range of people from whom the police can take DNA samples, by providing for samples to be taken from all people charged with offences punishable by jail terms. The samples will be destroyed if the defendant is acquitted or the charges are dismissed. Other law-andorder moves include the introduction of a $50 levy for all people convicted of offences, the creation of a Freshstart programme for serious young offenders, longer Youth Court sentences, and the lowering of the age for Youth Court jurisdiction from 14 to 12.

A second key focus for the Government this year will be significant changes to the Resource Management Act. Overhauling environmental legislation was a key government election pledge, and ministers at the beginning of February announced plans to make more than 100 changes to the current act as part of a two-stage reform process. The first stage will focus on improving consent processes, including amendments to streamline and simplify the act and to introduce Interview with visiting British priority consents for projects of Attorney-General national significance. The second stage will target decision-making processes relating to infrastructure, water and urban design.

Appointment of New Zealand’s

Inside this issue: Page 3 Page 5

new Attorney-General

Page 7

Trans-Tasman Legal Disputes Processes Fast-Tracked

Page 9

Upcoming conferences and seminars

Specific proposals included in the initial step are the creation of an Environmental Protection Authority to fast-track major projects, discouraging trade competitors from challenging proposals, removing the current presumption in favour of notification, and power to send applications directly to the Environment Court. The legislation implementing the changes will be referred to a Select Committee for consideration, but the Government continued over...

INSIDE THIS ISSUE Pg 1 - Law-and-Order Dominates 2009 Legislative Agenda Pg 3 - Attorney-General Public Guardian, says Baroness Pg 5 - New Attorney-General NZBA Member Pg 6 - Movements and Markers in Criminal Law Seminar Pg 7 - Trans-Tasman Legal Disputes Processes Fast-tracked Pg 8 - Bar Chat Pg 9 - Upcoming Conferences & Seminars Pg 10 - What Members Need to Know Pg 11 - Junior Barristers Report Pg 12 - Litigation Skills Programme 2009 Pg 13 - NZBA Council Minutes Pg 14 - Risky Business by Callum Mills, Ideal Systems Pg 16 - Crombie Lockwood - The US Crisis

EDITOR Catriona MacLennan Tel: 0064 9 378 0964 Email: catmac@orcon.net.nz EDITORIAL COMMITTEE Miriam Dean QC Convener Tel: 0064 9 377 8959 Email: miriam@barrists.co.nz Monique Pearson Tel: 0064 9 303 4515 Email: nzbar@nzbar.org.nz Graham Kohler Tel: 0064 9 307 9816 Email: kohler@shortlandchambers.co.nz John Matthews Tel: 0064 9 409 2010 Email: jgmatthews@xtra.co.nz DESIGN & PRINT Amanda Brett, Kinetech Creative Tel: 0064 9 576 8393 Email: amanda@kinetechcreative.co.nz New Zealand Bar Association Tel: 0064 9 303 4515 Fax: 0064 9 303 4516 Email: nzbar@nzbar.org.nz Web: www. nzbar.org.nz P O Box 631 Auckland 1140 2

Law-and-Order Dominates 2009 Legislative Agenda cont... intends it to return to the House for its final stages in late August.

In the constitutional sphere, the Government as part of its confidence and supply agreement with the Maori Party agreed to undertake a review of the Foreshore and

The Government as part of its confidence and supply agreement with the Maori Party agreed to undertake a review of the Foreshore and Seabed Act 2004.

Seabed Act 2004, which provides for Crown ownership of the public foreshore and seabed. The review will consider whether the legislation adequately maintains and enhances mana whenua. Governor-General Anand Satyanand in the December Speech from the Throne said that, if repeal of the act was necessary, the Government would ensure that there was “appropriate protection in place to ensure all New Zealanders enjoy access to the foreshore and seabed, through existing and potentially new legislation.”

A further part of National’s confidence and supply agreement with the Maori Party was a promise to set up a group to consider constitutional issues, including Maori representation. Part of that process will comprise a binding referendum on the future of the MMP electoral system. If voters decide that they no longer support MMP, they will be given other options from which to choose a replacement system.

The controversial Electoral Finance Act was repealed in February and the Government will undertake extensive consultation this year as to

what should replace it. In the interim, the old Electoral Act 1993 will apply. The exception to this is the panalties’ provisions of the Electoral Finance Act, which remain in force to deal with any offences relating to the 2008 election. An interim regime is required in case a byelection occurs, which could be the situation if an MP died or if former Prime Minister Helen Clark vacated her parliamentary seat to take up a position with the United Nations.

The Government moved in December to abolish the expert panel set up by the previous government to review electoral laws.

Justice Minister Simon Power said then that National wanted to return to the spirit of bipartisanship which had until recently shaped electoral law in New Zealand.

The Government plans to consult with representatives of all political parties with the goal of introducing an “enduring legislative framework” for electoral law after approximately September 2010. This will involve discussions with political parties, followed by the release of an issues paper on which both the public and politicians will be able to make submissions.

Governor-General Anand Satyanand in the Speech from the Throne said that the Government viewed the Electoral Finance Act as placing a yoke on free speech and thereby eroding the democratic principles underpinning New Zealand. It wanted to replace the legislation with durable and effective electoral law enjoying the support of the public.

The Government also plans to carry out a review of regulations. Its goals will be to identify and remove regulations which the Government considers to be inefficient or superfluous, and to ensure that regulations are used “sparingly and effectively.”

Attorney-General Public Guardian, says Baroness A British review of the role of the Attorney-General had aimed to clarify the functions of the office and ensure that they were understood by the public, said British Attorney-General, Baroness Scotland of Asthal. Lady Scotland spoke to the New Zealand Bar Association newsletter during her visit to New Zealand in February. When she took up the position of AttorneyGeneral, she was charged by British Prime Minister Gordon Brown with restoring public confidence in the role.

She said that she had examined the different components of the office to see whether they fitted well together.

Extensive consultation had been carried out with the legal profession, the judiciary and others, and she had sought to clarify the role and emphasise its function as a guardian of the public interest and “inside scrutineer.” One change made had been amending the Attorney-General’s oath of office to state that the holder “respects the rule of law.” It had also been made plain that the AttorneyGeneral could not direct prosecutorial agencies in individual cases. Lady Scotland said that she had proposed that she prepare an annual report so that people gained a better understanding of what the AttorneyGeneral did. Work was also being undertaken on an outreach strategy for schools and other parts of the community.

“I really want to make people better understand that the Attorney-General is their champion in government.”

Lady Scotland had a packed schedule of discussions with members of New Zealand’s legal community during her visit, meeting with Executive District Court Judge Jan Doogue, former Principal Youth Court Judge Mick Brown, Crown Solicitor Simon Moore, Principal Family Court Judge Peter Boshier, Law Commission President Sir Geoffrey Palmer and SolicitorGeneral David Collins QC. The Baroness said that she had discussed a range of issues during her meeting with New Zealand AttorneyGeneral Chris Finlayson. One of those had been her pro bono initiative, which she said Mr Finlayson had been very interested in. The initiative was begun by the former British AttorneyGeneral, Baron Goldsmith, and has

Visiting British Attorney-General, Baroness Scotland of Asthal, with Dr David Collins QC.

been extended to the international field by Lady Scotland. In November 2008 the Attorney-General’s Pro Bono Committee released a statement of principles for international pro bono legal work. The statement notes that international pro bono legal work may variously be undertaken by lawyers, members of the judiciary, legal academics, and law students.

It says that international pro bono work means the provision, free of charge of legal services, advice, training and support. The aims are to improve access to justice in overseas countries, build capacity and capability in the legal systems of overseas countries, and help meet unmet legal needs. International pro bono work takes different and broader forms than traditional, nationallydelivered pro bono legal work, with advocacy training, judicial assistance and lectures on key areas of law and legal development comprising important aspects of international pro bono legal work.

Lady Scotland said that the statement had been endorsed by the International Bar Association, and she was continuing initiatives to progress the concept. She had created an initial draft of a toolkit outlining how to commence pro bono work and how to involve people such as students.

She hoped that New Zealand would comment on the proposal, and that something could be created for use across the Commonwealth to promote pro bono work and support lawyers who were seeking to uphold the rule of law in challenging situations.

The Baroness said that she had discussed strategies to combat domestic violence with Judge Boshier.

She said that she had a keen interest in that issue, having been involved in work in the domestic violence field for more than 30 years, beginning in her days as a barrister. Lady Scotland said that she had been very impressed by what she had heard about New Zealand’s “It’s Not Okay” campaign.

In turn, she had told Judge Boshier about British initiatives to reduce domestic violence, including the creation of specialist domestic violence courts. Lady Scotland said that there had been two British initiatives which she believed had been particularly important in beginning to turn the tide. Multiagency risk assessment conferences had been established to clarify what factors created high-risk cases in the domestic field. When agencies came together, each was now clear about what was expected of it and there was already agreement about how they would work together. Even more crucially, the Attorney-General said that the position of independent domestic violence advisers had been created. Advisers were allocated at the commencement of domestic violence proceedings and could remain with victims not only throughout the criminal justice process, but for up to three months afterwards.

The Baroness described the advisers as “fantastic,” and said that Britain had been able dramatically to change the outcomes in cases put through continued over...

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Attorney-General Public Guardian, says Baroness continued...

“Well good! You can be the first.””

Baroness Scotland with High Commissioner Mr George Fergusson

the specialist domestic violence courts using the advisers. She said that, previously, the criminal justice process had simply been too much for many victims. Prior to the new initiatives, there had been a 29 per cent conviction rate, with 21 per cent of offenders pleading guilty, and eight per cent being found guilty. Within five years, the conviction rate had soared to 72.5 per cent. She said that British Crime Survey showed that Britain had reduced domestic violence by 58 per cent, at the same time as between 23,000 and 30,000 more complainants had come forward.

Lady Scotland said that the Government had been very clear that it wanted to reduce the numbers of familial homicides as well as grievous bodily harm, and repeat victimisations.

The trajectory was now moving in the right direction in relation to all of those factors, and Britain was starting to roll the initiatives out all across the jurisdiction.

“We know it’s not easy and we know we’ve got to keep putting our foot down on it, but we know it works.”

The Attorney-General said that the Government had also taken steps to involve the corporate sector in initiatives to counter domestic violence, which was estimated to cost business £2.7 billion a year. She said that making firms aware of the bottom line costs to them from domestic violence had been a good way to encourage their involvement.

The Baroness said that Britain remained committed to upholding

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the rule of law at the same time as seeking to deal with terrorist activity.

The Government had made it plain that any rule or legislative provision introduced to combat terrorism must be within the rule of law, and Britain had made clear that it was “deeply opposed” to the United States detention centre at Guantanamo Bay. All participants in trials in Britain had access to good lawyers paid for by the state, and an independent reviewer provided oversight of the anti-terrorist legislation. She said that she believed that some people had been shocked by the extent of terrorist activity uncovered in Britain, and the Government was resolute about ensuring a proportionate response without jeopardising civil liberties.

Lady Scotland is the first woman and first member of an ethnic minority to hold the office of Attorney-General since its creation in 1315. She was born in Dominica and her family moved to England when she was two. She was educated at University College, London, and was called to the bar at Middle Temple in 1977.

Lady Scotland specialised in family and children’s law and, at 35, she was the first black woman, youngest ever woman and youngest person to take silk since William Pitt the Younger. She said in an interview with The Guardian last year that over-achievement was taken for granted in her family.

“In my family it was just bog-standard.

I was brought up to believe that everyone is the arbiter of their own fortune. If you said to my father “But no-one else is doing it,” he would say

The Baroness said in the same British media interview that she was used to confronting other people’s assumptions about her. “I was once told people of my “sort” would find (becoming a barrister) difficult. So I said “What sort is that exactly? “When they stumbled I said “Oh, you mean socialists? Do you mean Catholics?

People from Walthamstow? People who haven’t been educated in private schools? What sort?” I knew exactly what they were talking about. I thought “Let the embarrassment be yours, not mine. People are often frightened of what they don’t know.”

Among a host of other positions, Lady Scotland served on the Bar Public Relations Committee, Professional Conduct Committee, Judicial Studies Board Ethnic Minority Advisory Committee, Legal Advisory Panel on the National Consumer Council, and the National Advisory Committee on Mentally Disordered Offenders. She was a founding member and head of Chambers of 1 Gray’s Inn Square.

She was created a peer as Baronesss Scotland of Asthal in 1997, and was raised to the Privy Council in 2001.

If you said to my father “But no-one else is doing it,” he would say “Well good! You can be the first.”

Lady Scotland was appointed Parliamentary Under-Secretary of State at the Foreign and Commonwealth office in 1999, which involved responsibility for British overseas territories and relations with southern Asian countries. She was responsible for introducing in the United Kingdom the bill to ratify the International Criminal Court. The Baroness became Parliamentary Under-Secretary in the Lord Chancellor’s Department in 2001, and in 2003 was made Minister of State for the Criminal Justice System and Law Reform at the Home Office. Lady Scotland was appointed Attorney-General by new British Prime Minister Gordon Brown in June 2007.

New Attorney-General NZBA Member together with an additional $45.6 million worth of accumulated rentals on Crown forestry land and emissions credits. Te Rauparaha’s kidnapping and 18 month detention, while large slabs of the tribes land were sold, will be acknowledged as part of the settlement. The settlement also provides for rights over the Ka Mate haka, the first time intellectual property

stating that the proposal appeared to breach the New Zealand Bill of Rights Act. Mr Finlayson as AttorneyGeneral is required to vet legislation to check whether it complies with the bill of rights. He said that he did not consider that there were any special circumstances which would justify New Zealand in eliminating such safeguards. The United Kingdom

Mr Finlayson as Attorney-General is required to vet legislation to check whether it complies with the bill of rights.

New Zealand’s new Attorney-General, Christopher Finlayson, is a member of the NZBA. Mr Finlayson was made Attorney-General, Minister for Treaty of Waitangi Negotiations and Minister for Arts, Culture and Heritage when Prime Minister John Key selected his Cabinet in November.

issues have been included in a treaty settlement. It is expected that the Ngati Toa deal, as well as settlements with Kurahaupo Ki Te Waipounamu Trust and Tainui Taranaki ki te Tonga will be concluded by the end of 2009.

The Government’s proposal to permit the police to take DNA samples from people they intend to charge with an imprisonable offence without the safeguard of judicial or other scrutiny resulted in a report from Mr Finlayson

did not have safeguards and its regime had been found to breach the European Convention on Human Rights. Jurisdictions such as Canada, the United States, the Netherlands, Japan, Germany and the Australian states of Victoria and New South Wales all had safeguards in relation to their DNA samples’ regimes.

An NZBA interview with the new AttorneyGeneral will appear in the June newsletter.

Mr Finlayson was born in Wellington and attended Victoria University, graduating with a BA in Latin and French and a Masters degree in Law. He was a partner at Brandons and later, from 1990 to 2002, at Bell Gully.

Mr Finlayson became a barrister sole in 2003. He appeared before the Privy Council nine times and was a member of the Rules Committee, the Council of Law Reporting and the Council for Legal Education. He taught ethics, civil procedure, conflict of laws and intellectual property law at Victoria University and was an author of McGechan on Procedure for a lengthy period.

Mr Finlayson, who only entered Parliament in 2005, has immediately been called on to deal with a host of disparate issues in his new portfolios.

He and representatives of three iwi in February signed letters of agreement relating to a $300 million treaty settlement. Ngati Toa Rangatira will receive $75.35 million in redress,

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Movements and Markers in Criminal Law Seminar Criminal appeals in New Zealand had a high success rate in comparison with appeal outcomes in other countries, Meredith Connell Crown Prosecutor, Simon Mount, told the Legal Research Foundation/ Criminal Bar Association of New Zealand’s Movements and Markers in Criminal Law seminar. Mr Mount said that the New Zealand Court of Appeal heard approximately 400 criminal appeals each year and nearly 40 per cent of those appeals succeeded. That figure could be compared with the United States Federal Court of Appeals, where only about six per cent of criminal appeals succeeded.

New Zealand’s successful appeal rate for conviction appeals was between two and three times higher than that of the United Kingdom. Further, the overall criminal appeal success rate had increased in recent years, rising from around 25 per cent in 2004, to 37 per cent in 2007. However, it should be noted that in 2003 the rate had been close to 30 per cent, and there had then been a sharp fall in success rates in the subsequent year. New Zealand had also experienced a marked decline in the number of criminal appeals dealt with on the papers. The figure had been approximately 27 per cent in 1993, had risen to over 40 per cent in 1995, and had then fallen to around two percent by 2007, following the changes to the Legal Aid regime and the Taito case in the Privy Council.

Mr Mount discussed a number of recent developments relating to criminal appeals. In relation to search warrants and informer privilege, he observed that R v Williams had been designed to be a comprehensive judgment setting out the law applicable in search warrant cases.

Paragraph 224 of the judgment had provided a summary for search warrant applicants, spelling out exactly what was required of them. However, Mr Mount said that 2008 had seen judicial clarification of the meaning of the case.

In R v HVT, the court had described the Williams’ summary as “best practice,” rather than a set of

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statutory requirements, and reaffirmed that section 198 of the Summary Proceedings Act 1957 was the test for validity. In R v Kissling, the court had said that Williams was intended to provide “guidance,” rather than a test for validity.

In relation to informer privilege, Mr Mount said that paragraph 224 of Williams had said that, if search warrant applicants were relying on information from informants, they should “give as much information about the informant as possible, including the informant’s name, address and relationship to the suspect (if known) and any specific information on past reliability.” He said that this ran counter to the traditional protection of identity for informants.

In R v Kissling, the court had said that the court in Williams could not have abrogated a privilege which had been recognised for hundreds of years, and a practice which had been universally followed in New Zealand and similar jurisdictions. The court concluded that it was “well satisfied” that there was no requirement in that case for the police to identify the informer. Kissling had also recognised the limitations on District Court security and invited Parliament to consider security issues during the select committee process for the Search and Surveillance Bill.

Mr Mount said that R v Leonard set out criteria for pre-trial leave applications, listing matters both for and against the granting of leave. He said that the new leave procedure was designed to filter out “hopeless” applications. A new form, provided for in Rule 5B, must be used and there was a requirement to address the Leonard criteria. Full grounds and authorities must be provided. Rule 5C required the Crown to provide a memorandum in reply within five days.

Mr Mount said that the new process meant that applications might be addressed three times – in Rule 5B and 5C memos, at a leave hearing, and at a substantive hearing. Despite the new procedure, the distinction between leave and merits continued to be blurred in many cases.

Public Defender Jonathan Down provided an update in relation to

New Zealand’s successful appeal rate for conviction appeals was between two and three times higher than that of the United Kingdom. Further, the overall criminal appeal success rate had increased in recent years. the Evidence Act 2006, focusing on issues relating to cross-examination.

He advocated that counsel constantly revisit the rules relating to crossexamination and critically assess their performance. In particular, he said that counsel should constantly remind themselves of two rules based on the Common Law and which were now contained in the act. The first was contained in section 92 and provided that parties must cross-examine witnesses on significant matters relevant and in issue, and which contradicted the witness’s evidence if the witness could reasonably be expected to be in a position to give admissible evidence on those matters.

Section 92(2) provided that, if a party failed to comply with that requirement, the judge could grant permission for the witness to be recalled and questioned about the contradictory evidence, admit the contradictory evidence but with its weight affected by the failure, exclude the contradictory evidence, or make any other order that the judge considered just.

Mr Down said that, typically, criticism of counsel who failed to comply with the requirement arose at the time the contradictory evidence was called, but it could also occur at the time of the closing address when lawyers who had stopped short of raising the ultimate issue with witnesses found that they had fallen foul of the rule. He also discussed the veracity rules set out in section 37, noting that issues relating to character had in the new act been divided into two categories of veracity and propensity.

Section 37(1) stated that parties could not offer evidence about a person’s veracity unless the evidence was “substantially helpful” in assessing that person’s veracity.

Mr Down said that provision made judges the gatekeepers.

In deciding whether or not the test was satisfied, judges could consider whether the proposed evidence tended to show lack of veracity, that the person had been convicted of offences indicating a propensity for dishonesty of lack of veracity, previous inconsistent statements, bias, or motivations for untruthfulness.

He said that it was his view that prior rulings were now required in relation to all veracity evidence under section 37, but it was of concern that some counsel might not yet have grasped the breadth of the provision.

Professor Raymond on The Art of Written Persuasion 27 - 31 July 2009 Professor James C Raymond will visit New Zealand in late July and deliver two seminars in Auckland and possibly another in Wellington on “Legal Writing and Reasoning”.

One is a half day seminar for junior / intermediate litigators; the other a full day workshop for senior litigators. These are seminars not to be missed. Programmes and registration forms will be uploaded to the Association’s website www.nzbar.org.nz in due course.

Trans-Tasman Legal Disputes Processes Fast-tracked Legislation is expected to be introduced to both the New Zealand and the Australian Parliaments in 2009 to implement the Trans-Tasman Court Proceedings and Regulatory Enforcement Treaty. The treaty was signed in July 2008 and requires domestic legislation in each jurisdiction to bring it into force. Australian Attorney-General Robert McClelland and New Zealand’s Justice Minister Simon Power in January announced that priority would be given this year to implementation of the treaty.

It is part of the ongoing closer economic relations process which aims to sweep away legal and other impediments to Trans-Tasman business. Article 3 of the treaty provides that final judgments – both monetary and non-monetary – made in civil proceedings in one country will be enforceable in the other by virtue of a simple registration process. Defendants will be given notice of the registration of judgments, with registration being set aside only if it would be contrary to public policy.

However, civil proceedings relating to marriage dissolutions, maintenance and child support are excluded, as are orders concerning probate and administration, welfare guardians, child welfare and orders which could lead to convictions. Importantly, civil

pecuniary penalty orders and fines for certain regulatory offences will be enforceable Trans-Tasman. Article 10 requires both countries to draw up a list of laws under which fines are imposed for criminal offences relating to regulatory regimes affecting the effectiveness, integrity and efficiency of Trans-Tasman markets. Such fines will in future be enforceable in the other jurisdiction.

Article 6 provides for New Zealand and Australia to draw up a list of tribunals, decisions or classes of decisions which can be mutually recognised and enforced. Each nation will nominate courts within its territory to grant interim relief in support of proceedings commenced in the courts of the other country. Initiating processes in a court in one country will be able to be served in the other jurisdiction without the leave of the court being required.

The treaty also makes increased provision for remote appearances in civil proceedings. Article 12 requires each party to provide for subpoenas to be issued in criminal proceedings and served in the other jurisdiction without leave being sought from a superior court.

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BAR CHAT Announcements Rob Osborne has been appointed a temporary Associate Judge of the High Court, for a period of 12 months from 29 January 2009. Associate Judge Osborne practised in Christchurch for many years, initially with Duncan Cotterill and later as a barrister sole. The new Associate Judge will sit in Christchurch.

International Bar Association launches new website The International Bar Association recently announced its new wiki-style website at BASESwiki.org. Developed as a global, web-based, searchable database, this virtual resource will improve access to non-judicial methods of resolving disputes between companies and society.

[Council member Tony Hughes-Johnson QC, attended the swearing-in ceremony for Associate Judge Osborne on behalf of the NZBA.]

BASESwiki.org also serves as a learning centre for anyone interested in how to resolve these disputes outside a courtroom.

Gary Judd QC has been appointed to the APEC Business Advisory Council of New Zealand (ABAC). ABAC is a network of business representatives in each of the 21 APEC economies that meet quarterly to develop business perspectives on issues being discussed among APEC economies. The appointment is for three years.

New Bar Association members

NZBA Council meetings and events Members should feel free to contact any of the Council members – or the Association – with any matters they would like raised on their behalf at future Council meetings.

(See below).

The Bar Association welcomes the following new members to the independent bar and/or the Association: AUCKLAND:

Antony Holmes; Trina Lincoln; Gabrielle Wagner; David Beard

WELLINGTON:

Peter McKnight; Jane Standage; Gareth Bodie; Susanne Ruthven; Jonathan Orpin; Jill Pengelly; Tim Vogel

CHRISTCHURCH: Virginia Nichols SOUTH ISLAND: Carmen Jillett

2009 Council Meetings and Events DATE

EVENT

VENUE

30 April

Bench & Bar dinner

Christchurch Club

01 May

Council Meeting

Christchurch Club

May – TBC

“Criminal Law Update” A half-day seminar with Professor Brookbanks

Auckland

25 June

Council Meeting

Video Conference

27 July 30 July

“Legal Writing and Reasoning” with Professor James C Raymond A half-day seminar aimed at junior/intermediate litigators

Auckland Wellington

28 July 31 July

“Legal Writing and Reasoning” with Professor James C Raymond A full-day intensive workshop aimed at senior litigators (limited numbers)

Auckland Wellington

23-29 August

NZLS Litigation Skills Course (two NZBA scholarships available)

Christchurch

11-13 September

NZBA Annual Conference and Annual General Meeting

Wellington

22 October

Council Meeting

Wellington

03 December

Council Meeting

Auckland

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UPCOMING CONFERENCES & SEMINARS NEW ZEALAND

involvement and interaction of bar leaders in discussions with top level panels on a variety of topics.

Professor Raymond on The Art of Written Persuasion 27 - 30 July 2009

Visit www.ibanet.org to view the full programme and registration form.

Professor James C Raymond will visit New Zealand in late July and deliver two seminars in Auckland and possibly another in Wellington on “Legal Writing and Reasoning”.

One is a half day seminar for junior / intermediate litigators; the other a full day workshop for senior litigators. These are seminars not to be missed. Programmes and registration forms will be uploaded to the Association’s website www.nzbar.org.nz in due course.

New Zealand Bar Association Annual Conference 11 - 13 September 2009 See page 16 if you are interested in presenting a paper at this year’s annual conference. Expressions of interest should be sent via email to monique.pearson@nzbar.org.nz no later than Thursday, 2 April 2009. A full programme will be released in June

INTERNATIONAL Paris Bar Leaders Conference 20 - 21 May 2009 The Fourth Annual Bar Leaders’ Conference will be held in Paris from 20-21 May. Sessions will encourage the

Australian Bar Association Conference 26 June – 1 July 2009 The conference will commence in Strasbourg on Friday, 26 June for a full day session in the Grand Chamber of the European Court of Human Rights. The London component will commence on the evening of Sunday, 28 June and conclude with a Gala Dinner at Lincoln’s Inn on Wednesday, 1 July 2009. The London business sessions will be held at the Mayfair Hotel.

For more information contact Dan O’Connor at mail@ austbar.asn.au or fax (07) 3236 1180.

Scholarships available for the IBA Annual Conference in Madrid 4 - 9 October 2009 This year the sections and committees of the IBA’s Legal Practice Division are once again offering scholarships to young lawyers who wish to participate in the IBA Annual Conference, but may find financial difficulties doing so.

Please visit the IBA website www.ibanet.org.nz or email Kelly Savage at Kelly.savage@int-bar.org for more information on how to apply for a scholarship.

Applications close on Monday, 27 April 2009.

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WHAT MEMBERS NEED TO KNOW New Zealand Bar Association Annual Conference 11 to 13 September 2009 - Wellington

Request for papers Members, if you are interested in presenting a paper at this year’s annual conference, please submit an abstract (400 words max) on your proposed topic. The conference committee is particularly interested in topics that have a wide national relevance and a practical focus.

Some topics of interest to the conference committee based on feedback from members include: • Impact of the Evidence Act in criminal and civil litigation • Sentencing and rehabilitation • FTR evidence recording - the demise of the written brief?

• PII claims against barristers / risk management • Ethics and standards in legal practice • Advocacy, trial tactics, expert evidence • Class actions • Practice management including incorporation and software systems • Use of new technology in litigation Other topics will be considered and members should feel free to email an abstract to the Executive Director, Monique Pearson, for consideration by the conference committee.

Abstracts should be sent via email to monique.pearson@nzbar.org.nz no later than Thursday, 2 April 2009.

Update on Professional Indemnity Insurance The Professional Indemnity and Companion Liability insurance programme for members is negotiated each year at 1 May. Negotiations for the new insurance period commencing 1 May 2009 are already well under way.

The implementation of the Lawyers & Conveyancers Act 2006 at 1 August 2008 has given members the opportunity to incorporate their practice. Incorporation is readily accommodated by the current insurance programme. It is expected that there will be no change in policy conditions from 1 May that would affect the availability of cover for an incorporated practice.

Perhaps surprisingly, claims against the policy continue to be notified on a regular basis. Claims arise from a wide range of professional activity and are not necessarily the domain of one segment of the membership. In recent years some quite substantial claims have been recorded by the scheme insurers. Practice activities that have contributed to claims notifications include taxation; matrimonial property relationships; vexatious litigation; missed limitation periods; defamation; mediation disputes.

Some members are registered to practice at the New South Wales Bar. The current Professional Indemnity policy offered to members is not accepted by the New South Wales Bar. Your council is working with insurance consultant Aon New Zealand to achieve a policy contract that will provide cover for those members who elect to practice in New South Wales as well as in New Zealand.

The insurer composition of the members’ insurance programme has not been finalised for the new period. As previously advised the current programme is co-insured by four insurance underwriting companies being: • QBE Insurance (International) Ltd (lead insurer) • Vero Liability Insurance Limited • NZI Professional Risks (a division of IAG New Zealand Ltd) • American Home Assurance Company From 5 November 2008, rating agency Standard & Poors down graded American Home Assurance Company to “A+/ Credit Watch Negative. This is still the current rating for American Home Assurance Company. Members concerned by this rating have the option of removing American Home Assurance Company from the co-insurance schedule with the remaining insurers taking up proportional shares of the residual balance.

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Junior Barristers Report By now I am sure everyone is getting back into the swing of things after hopefully a long and relaxing break.

I spent my break out in the cold in Colorado. Being in the US of A over the New Year period was interesting because there were only two topics on everyone’s mind and lips - the recession and the inauguration of President Obama. There was a lot of despair about the recession but also a lot of hope about the incoming President and what he could do for the country.

Similarly when I arrived back in NZ and back to work the current obsession was with the recession. Rumours (probably highly inaccurate) of redundancies in the firms and hordes of lawyers returning from recessionravaged London appear to be the favourite topics at the cafes. A related subject of constant debate is whether a recession is a good/bad or neutral thing for barristers. The general consensus is that there is a very shiny silver lining in the cloud that is the recession for barristers, in the form of a lot more litigation. Of course, a lot more litigation means a lot more work so it is probably going to be a head down, tails up year for most people.

Before we all hopefully get swamped in work for the year I wanted to mention a few upcoming opportunities for JBs in 2009:

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NZBA Mentoring Feeling lost? Lonely? Feel like you are missing that special someone in your life! A mentor may just be the thing for you. The Mentoring Programme is available to members of the NZBA and aims to provide a means for less experienced practitioners and members who are new to the independent bar and/or to the NZBA with an opportunity to receive valuable support and guidance in their professional development from a senior member of the Association.

Take the Lead Seminars / Professor Raymond Seminars Coming soon to a town near you - Take the Lead seminars especially designed with you in mind. Invaluable advice on everything from Courtroom Etiquette to Networking. Professor Raymond seminars are also coming in July and by all accounts, well worth the money.

The Reserve Bank wants us to keep spending money to kick start the economy so register for these seminars and you’ll be doing yourself and the economy a favour.

Junior Barrister Functions We will be having JB shindigs this year in the main centres so come along and enjoy some fine food, drink and company. We will keep you posted on event dates as they are confirmed.

Even better, if you are interested in helping to organise a function in your town let me know and together we can make it happen.

Annual Conference The NZBA annual conference is in Wellington this year from 11-13 September. It would be great if we could get a good attendance at the annual conference from the junior bar.

Remember the NZBA is our association too and the NZBA will represent our interests if we show some interest.

Australia JB exchange?

Finally, I wanted to raise the possibility of setting up an Australia - New Zealand bar exchange programme.

The idea would be that junior barristers from New Zealand could experience life as a barrister in an Australian chambers, much like the Pegasus scholarship between UK-NZ. The aim would be to encourage more barristers to establish trans-tasman practices and to generally get some good experience in another jurisidciation. I certainly have not thought through the mechanics, details or implications of this but before I did I wanted to know if there was any interest at all in the idea.

If your curiosity is remotely sparked by this, please flick me an email to let me know joanne.verbiesen@stoutstreet.co.nz

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Litigation Skills Programme 2009 23-29 August 2009 Lincoln University, Christchurch.

Association of Canterbury. Closing dates for applications for financial assistance vary, so please contact Kelly Wright at NZLS CLE Ltd kelly. wright@lawyerseducation.co.nz .

Criteria: 2 to 5 years experience in litigation

The New Zealand Bar Association is offering a full scholarship each to two recent new members of the independent bar. The grants are being offered by the Council as an indication of its determination to support the initiatives presently being taken to improve the standard of litigation skills of those at the independent bar. Applicants do not

Skills: In-depth training in the skills of successful courtroom advocacy Closing date for applications to the NZLS: Monday 29 June 2009.

This week-long programme running from 23-29 August 2009 provides indepth hands-on training in successful courtroom advocacy. The course will be held at Lincoln University, Christchurch The teaching methods for the programme have been adapted from those of the US National Institute for Trial Advocacy (NITA). Each day of the programme allows for intensive practise of discrete advocacy skills and encourages participants to learn by doing and by observation.

Throughout the course participants are guided by specific, candid and constructive critique from experienced faculty from all over New Zealand.

Day One is structured around leading evidence, cross-examination and production of exhibits. Day Two will allow participants to practise cross examination and impeachment, Day Three will involve the examination of expert witnesses and on Day Four there will be mini trials and drills on opening addresses. In Day Five participants will practise closing arguments and begin preparation for the full mock trials, which take place at the Christchurch Courts on Day Six. This course is designed for practitioners who have been in practice between two to five years.

The course is restricted to 96 participants, who will be notified of the success of their application at the completion of the selection process. Some financial assistance is available from the New Zealand Bar Association, the Douglas Wilson Advocacy Trust and the Criminal Bar

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have to be members of the New Zealand Bar Association but must be eligible to join, i.e. practising as a barrister. The scholarship recipients will be required to join the Association and will be expected to remain members for a minimum of three years. The closing date for applications for a scholarship is 4 June 2009. For further information please contact Monique Pearson at monique.pearson@nzbar.org.nz

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Summary of the Minutes of the NZBA Council Meeting Minutes of the Council Meeting of the New Zealand Bar Association held on Thursday, 23 October 2008 at 10:00am at the Wellington Club. In attendance were Colin Carruthers QC, Tony Hughes-Johnson QC, Stephen Mills QC, Chris Gudsell QC, Jonathon Eaton, Elliot Hudson, Terry Sissons, Ken Johnston, Joanne Verbiesen, Anthony Rogers, Graham Kohler, Kate Davenport and Monique Pearson.

Apologies received from Miriam Dean QC.

After a full discussion of the circumstances in which it would be proper to exercise its power to coopt members to the Council, Council resolved that Mr Matthews be co-opted to represent the Otago region.

Mr Carruthers welcomed new Council members Ms Verbiesen, Messrs Rogers and Kohler and expressed a vote of thanks to Messrs Bigio and Ward-Johnson for their valuable contributions while on the Council.

The Council reviewed and subsequently adopted the proposed committees’ structure and the events calendar for 2009. Mrs Pearson advised that the above would be uploaded to the Association’s website.

The following Council members were appointed as Vice-Presidents for 2009:

The Council tentatively adopted the following meeting dates for 2009:

• Miriam Dean QC - Auckland

• 4 December - Christchurch

• Chris Gudsell QC - Hamilton (representing the provincial areas)

• 27 February - Auckland

• Terry Sissons - Wellington

• 25 June - Video conference

• Jonathon Eaton - Christchurch (representing the South Island)

• 22 October - Wellington

Mr Johnston was appointed to the role of Treasurer and spoke to the financial accounts for the periods July, August and September 2008.

Mrs Pearson provided an update on the membership statistics.

• 1 May - Christchurch

• 3 December - Auckland Mrs Pearson spoke to her report on the proposed Membership Relationship Management database. A general discussion followed which resulted in the Council voting in favour of migrating to an upgraded IT platform.

An IT Infrastructure committee was established comprising Mr Carruthers as chair, Ms Davenport and Mr Johnston.

Mrs Pearson reported on the success of the repeat “Take the Lead and Shape Your Future” seminar and encouraged the Wellington and Christchurch VicePresidents to now run with the model.

Mr Carruthers praised the work done

by Ms Dean in developing the pilot programme.

In the absence of Ms Dean, Mrs Pearson reported on the proposed Professor Raymond seminars.

Essentially, two programmes were envisaged. One was a halfday seminar aimed at the junior/ intermediate litigators and the other

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a full-day intensive workshop aimed more at senior litigators. The Council agreed that Mrs Pearson should book Professor Raymond for the last week in July 2009.

Ms Sinclair, Ministry of Justice Deputy Secretary and Mr Orr, Chief Legal Counsel for the Ministry joined the meeting. Ms Sinclair reported on a range of topics relating to the general challenges for the court system; court room security; court house buildings; digital / AV centres for transcription; and the implementation of the Lawyers and Conveyancers Act. Justice Randerson joined the meeting over the lunch period and provided an update on Access to court records; Fast Track procedure; High Court Rules; proposed arrangements to assist FTR transcribers in civil cases; and Briefs of Evidence.

Mr Gudsell provided an update on barristers’ training. He referred to the interim process and criteria for new barristers starting practice on their own account for the first time and Intervention Rule dispensations. Mr Carruthers reported on the meeting he attended with NZLS President, John Marshall QC, Christine Grice and Alan Ritchie. At that meeting the group considered the approach, in principle, to grant applications for dispensations.

Mr Rogers raised the matter of establishing defence counsel seminars.

He asked the Council to consider running topical seminars for the Criminal Bar, such as bail. The Council agreed to pursue this suggestion.

The Council discussed the results of the conference feedback survey.

Mr Eaton reported on the success of the Christchurch social function. He added that a copy of his speech and photographs would be published in the December newsletter.

John Martin, Aon Executive Director, joined the meeting at 3.10pm to discuss matters concerning revised terms and premiums; increase in NZBA claims; the influence of the world economy on policy terms; and an update on the situation with AIG.

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Risky Business

By Callum Mills, Ideal Systems This year, around forty members of the Association will suffer from some form of system or data loss.

About thirty of you will enjoy the pain and misery of a computer virus. For the most part you or your teenage offspring will actually have invited the virus onto your system, through reading an infected email or by installing music or data sharing software.

Anti virus It is fairly simple to address the virus element which will be the most common cause of concern, by following a few simple rules: Never, ever, open an electronic greeting card email even if you think you know the person that sent it.

Some virus’s will read the infected machines email address book and thoughtfully email itself disguised as a greeting card to everyone on the list.

Never install ‘free’ software that promises to resolve system issues that have been detected on your computer; it will most likely present you with a host of real system problems, holding your machine hostage until you provide the software company with your credit card details. Software is generally as good and reliable as the price you pay for it, there is no such

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Five of you will suffer from some form of catastrophic systems failure, where your IT support technician will make a lot of tutting sounds and will suggest that you invest in a nice new system.

Two of you will have your systems stolen, probably from your car, or perhaps some nice gentleman will suggest that you hand it over to him on your way home from chambers.

Three of you will cause irreparable damage to your system by dropping it off the side of your boat, running it over with your own car, standing on it, putting it into the dishwasher and so on.

In this article I will discuss the ways you can safely and cost effectively reduce the risk to you systems and data.

thing as a free lunch in the software business.

Upgrading your IT system

Make sure you have a decent anti virus system installed, it should have an Anti Spyware Module and an Anti Spam Module, if it manages your backups as well, so much the better. Have a look at Windows Live One Care as a starting point, it does not drastically slow down your system, and does everything it says it will reasonably well.

Do not let teenagers use your business computer, if they need or want a computer for their own pursuits then buy them one, it will be much cheaper in the long run. I am sure you all get asked for free legal advice from your relatives and friends. I get to re-build all my relatives and friends’ computers after their teenage offspring (and their friends) have reduced their performance to that of an abacus.

When you need to replace your system, and you will need to with surprising regularity, buy a good quality business machine from your IT contact. Do not buy the latest shiny offering from your local electrical store.

You will regret it and your IT support people will make fun of you.

Unless you really need a laptop, buy a desktop system. Desktops last longer (4-6 years as opposed to 3-4 years for a laptop), desktops are faster (they use faster processors), desktops are less expensive (by at least 30% for comparable technology), and laptops are twenty times more likely to be stolen or accidentally damaged.

I am afraid that I cannot make any suggestions to prevent your laptop continued over...

2008-2009 Council contact details COLIN CARRUTHERS QC - President Ph: 0064 4 471 4275 Fax: 0064 4 471 1195 P O Box 305, Wellington crc@crcarruthers.co.nz

Risky Business cont... from being dropped or run over, other than abstinence of course and being Scottish that goes against the grain.

Backing up your data I am sure that all of you regularly back up all the data on your computer systems and let’s not forget about the data that you keep on your smart phone. I am sure that is always backed up as well.

There really is little excuse for not taking regular backups. Backing up your system should only take a few minutes every week. If you permanently lost all of your computerised files, photographs, emails, address books, videos, etc, how would it affect your clients and your reputation?

Backup devices have come down in price to an incredibly inexpensive level. I recommend that you use an external USB hard drive most of which come with backup software that is simple to use, and costs less than $200.00 retail. If taking a backup is beyond your ability then get someone to come in and do it for you at least once a month. You will be much better off spending a few hundred dollars a year to ensure that you have current copies of all your data.

Now for those of you unfortunate enough to have their systems stolen, even if you have a backup of all your data, and your insurance company pays for a nice new machine, someone, somewhere has all of your data.

If you have put a password on your personal computer’s login screen that will slow up someone accessing your data by about 10 minutes.

Likewise, if you have put passwords on all of your document files, (and nobody ever does that), then that could slow up the new owner of your data by as much as five minutes a file.

The only way to provide a reasonable level of protection to the data stored in your system is through utilities that encrypt all the data on the hard drive making it unreadable by a third party. Drive encryption systems are not inexpensive, but it is surely preferable to spend a few hundred dollars on encryption software rather than seeing your notes and files in the public arena. Legislation exists in the USA and Europe which mandates the use of data encryption tools for all manner of computer data including all data held by the legal profession. It can only be a matter of time until similar legislation is mandated in New Zealand.

The author of this article, Callum Mills, has worked in the IT industry in Europe and Australasia for over thirty years, specialising in consultancy for the Legal, Media, Retail and Fashion sectors. Callum would be happy to personally answer any IT questions that you may have, please send them to callum@ideal-systems.co.nz.

Sources; Gartner Group; Verizon, 2008 Data Breach Investigations Report; Dell & Ponemon Institute, Airport Insecurity; CSI, The 12th Annual Computer Crime and Security Survey, 2007

TERRY SISSONS - Vice President - Wellington Ph: 0064 4 471 1380 Fax: 0064 4 499 8795 P O Box 23063, Wellington terry.sissons@xtra.co.nz KEN JOHNSTON - Treasurer Ph: 0064 4 471 2727 Fax: 0064 4 499 4620 P O Box 5058, Wellington k-johnston@clear.net.nz JOANNE VERBIESEN Ph: 0064 4 917 1083 Mob: 0064 21 616 711 P O Box 117, Wellington 6140 joanne.verbiesen@stroutstreet.co.nz MIRIAM DEAN QC - Vice President - Auckland Ph: 0064 9 377 8959 Fax: 0064 9 377 8960 P O Box 4111, Auckland miriam@barrists.co.nz STEPHEN MILLS QC Ph: 0064 9 307 9820 Fax: 0064 9 307 1572 P O Box 4338, Shortland Street, Auckland stephen.mills@shortlandchambers.co.nz KATE DAVENPORT Ph: 0064 9 307 8787 Fax: 0064 9 307 8788 P O Box 141, Shortland Street, Auckland kate@katedavenport.co.nz GRAHAM KOHLER Ph: 0064 9 309 1769 Fax: 0064 9 377 6956 P O Box 4338, Auckland kohler@shortlandchambers.co.nz ANTHONY ROGERS Ph: 0064 9 373 3196 Fax: 0064 9 377 4850 P O Box 1771, Auckland agvr@xtra.co.nz CHRISTOPHER GUDSELL QC - Vice President Regions Ph: 0064 7 839 3290 Fax: 0064 7 834 0587 P O Box 19085, Hamilton ctgudsell@xtra.co.nz ELLIOT HUDSON Ph: 0064 7 839 6644 Fax: 0064 7 839 6610 P O Box 19252, Hamilton elliothudson@xtra.co.nz JONATHAN EATON -Vice President - South Island Ph: 0064 3 372 3466 Fax: 0064 3 365 2592 P O Box 13-868, Christchurch j.eaton@.bridgesidechambers.co.nz TONY HUGHES-JOHNSON QC Ph: 0064 3 365 2158 Fax: 0064 3 365 7273 P O Box 286, Christchurch achj@xtra.co.nz JOHN MATTHEWS Ph: 0064 3 409 2010 Fax: 0064 3 409 2012 PO Box 1770, Queenstown jgmatthews@xtra.co.nz

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The US crisis - what it means to you

The financial meltdown in the US has dominated news headlines this year. It started with the so-called ‘subprime’ housing crisis where many struggling homeowners walked away from their home loans, a great number of which had been ‘packaged up’ and sold to investors around the world. With these ‘packages’ declining in value, investors, including many Wall Street investment banks suffered large losses. In the case of the Wall Street investment banks, these losses resulted in their share prices collapsing, which in turn resulted in their having to be rescued by US government agencies and, in some cases, led to receivership.

The failure of a growing number of finance companies has also been big news in New Zealand. While, initially, the failures appeared to be the result of poor management, the lack of confidence emanating from the ‘sub-prime crisis’ meant that many otherwise well-managed finance companies were caught up in what became a crisis of confidence.

Investors became reluctant to take the risk of reinvesting their funds as they matured. This effectively ‘starved’ these companies of the money they needed to repay other investors’ funds as they became due.

At the same time, many of these finance companies’ borrowers were not able to repay their loans on time

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because, in many cases, they could not sell the properties they had developed.

So, what do these things mean to you in New Zealand?

The most powerful change is likely to be a shortage of money to borrow, at least compared to the flush lending period of the past five years. This change will be felt in international markets where New Zealand banks typically raise a sizeable proportion of the funds they provide for borrowers in New Zealand.

This will mean that banks will be more selective in whom they lend to, when they lend and may well be on tighter terms.

Your insurance

In light of all these events, there is no time like the present to ensure your personal and business insurance is both adequate as well as appropriate.

For many self employed it could be harder to raise capital to cover an external shock to your business or lifestyle, for example; the need for immediate surgery or hospital care, an untimely death or serious injury resulting in a longer-term disability.

Business check...

If the worst were to happen: As a sole trader, would your business survive without income in the event you being unable to work?

Yes No Are your business debts covered in the event of your untimely death?

Yes No Are the personal guarantees over your residential house/ property covered?

Yes No

If you answered ‘No’ to any of the above, or wish to find out more about your business insurance options, please contact me today: Sue Crawford Ph: 09 623 9900 Sue.crawford@crombie.co.nz www.crombielockwood.co.nz