At the Bar March 2015

At The Bar March 2015

The Supreme Court and Arbitration Justice McGrath’s Final Sitting NZBA Member Benefits

From the Executive Director INSIDE THIS ISSUE Pg 2 - From the Executive Director Pg 3 - Member Benefits Portfolio 2015 Pg 5 - Arbitration: Lines Drawn By The Supreme Court Pg 8 - It’s That Time of Year Again Pg 10 - From the High Court

Pg 11 - Update from the Chair of The Criminal Rules Sub-Committee Pg 12 - Final sitting – Justice McGrath Pg 15 - Continuing the Conversation Pg 18 - Book Reviews Pg 22 - Electronic Bundles Pg 24 - Training - CPD Year Has Ended Pg 25 - New Members Pg 26 - Insurance Update from Marsh Pg 27 - Petrol Head’s Corner – the Range Rover Evoque and the BMW X5 Pg 30 - Finding the Wine Bargain?

Pg 31 - Events Pg 32 - 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 Clive Elliott QC - Chair Tel: +64 9 309 1769 Email: elliott@shortlandchambers.co.nz Melissa Perkin Tel: +64 9 303 4515 Email: melissa.perkin@nzbar.org.nz CONTRIBUTIONS & ADVERTISING: Jacqui Thompson Tel: +64 21 679 061 Email: jacqui.thompson@nzbar.org.nz DESIGN AND LAYOUT BY Kirsten McLeod Tel: +64 9 834 2224 NEW ZEALAND BAR ASSOCIATION Tel: +64 9 303 4515 Fax: +64 9 303 6516 Email: nzbar@nzbar.org.nz Web: www.nzbar.org.nz P O Box 631 Auckland 1140

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Changes to New Zealand Bar Association (NZBA) Council membership Marcus Elliott, NZBA Council representative from Christchurch, has resigned his position on the NZBA Council on his appointment as a Coroner. We congratulate Marcus on his appointment and thank him for his work while on the Council. The NZBA Council has confirmed Jonathan Eaton QC to fill the vacancy and welcome Jonathan back to the Council.

Intervention Rule The Lawyers and Conveyancers Act provided for a mandatory review of the intervention rule by the New Zealand Law Society (NZLS). The review has been undertaken and the NZBA was consulted during the review process. As a result, an amended intervention rule was adopted by the NZLS Council in April 2014.

The amended rule has been now approved by the Minister of Justice and is expected to come into force in the practicing year commencing on 1 July 2015.

Although there was some support for wholesale abolition of the intervention rule, that will not occur. The new rule replaces Rules 3.43.10 and 14.4 -14.13 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008. The result is that Barristers Sole working in certain areas will be able to take direct instructions from the public. There are however pre-requisites - barristers wishing to take direct instructions will be required to undertake training and then apply for NZLS approval. For that purpose, a training webinar is to be held at 1.00pm on Monday 8 June 2015 - for enrolments see www.lawyerseducation.co.nz. Detailed information about the changes and how to apply will be on the NZLS website (www.lawsociety.org.nz) from mid-April and Barristers Sole will be emailed directly by NZLS. NZBA Membership Benefits With the commencement of the membership year, we have updated our member benefits. Please review the member benefit brochure which has been sent to you with your membership subscription renewal. Additional information is available on the NZBA website. If there are products or services which are not currently available as a member benefit, please contact NZBA with your suggestions.

NZBA Annual Conference The 2015 NZBA Annual Conference will be held in Napier on 7-8 August, with the theme Access to Justice – Challenges for the Legal Profession. Two conference dinners have been confirmed at the wellknown art deco Masonic Hotel and Mission Estate. Accommodation at preferential rates has been negotiated and information on this and further details about speakers and the programme will be made available shortly.

Training Update Our 2015 training began with a webinar presented in February on High Court list appearances. Associate Judge Bell and barrister Suzanne Robertson took attendees through the stages of list appearances and what is required of counsel. The recording of this webinar is available for purchase – for more information, please email NZBA Administrator, Lisa Mills, at nzbar@nzbar.org.nz.

In early March the Court of Appeal and the NZBA cohosted a series of seminars in Wellington and Auckland on advocacy in the Court of Appeal for both civil and criminal advocates. Presented by Justice Randerson and Justice Harrison, with panels of senior counsel assisting, the seminars were described by attendees as invaluable and having excellent content. Please email Lisa Mills if you wish to purchase access to the recorded version of these seminars.

We wish to thank Justice Randerson and Justice Harrison, together with the following counsel who assisted as presenters. The Wellington Civil panel was: Francis Cooke QC, Karen Clark QC (Chair), Mark O’Brien and Dr Andrew Butler. The Auckland Civil panel was: Mike Ring QC, Stephen Mills QC, Lady Deborah Chambers QC (Chair) and Neil Campbell QC. The Wellington Criminal panel was: Brendan Horsley (Chair), Nick Chisnall, Annabel Markham and Christopher Stevenson. The Auckland Criminal panel was: David Jones QC (Chair), Marie Dyhrberg QC, Peter Davey, and Dr Mathew Downs.

Our next webinar, Etiquette for Litigators, will be held on 22 April 2015. Presented by Justice Brewer and barristers Philip Morgan QC and David O’Neill, this webinar takes litigators through the “do’s and don’ts” of appearances and dealing with the judiciary.

Whether you are a junior, or simply want a refresher on current practice, this is a great opportunity to learn. For more information and to register, go to the NZBA website under Events Calendar.

Young Lawyers Mooting Competition Auckland based NZBA Junior Barrister Council representatives Alexandra Sinclair, Stephanie Thompson and Hamish McQueen are working with the NZLS (Auckland Branch) Young Lawyers’ Committee to assist with the organisation of an Auckland mooting competition for young lawyers.

Wellington Council member Matthew Smith is similarly working with the NZLS (Wellington Branch) Young Lawyers’ Committee and there is a possibility a Christchurch based competition will be held. It is hoped that a 2015 national competition will be arranged for the winners of each of the regional competitions.

Consultations Recent and current consultations include a review of family violence legislation, District Court scheduling, the definition of “solicitor” in relation to authority to take affidavits and trial counsel competency.

Silks’ Dinners It is expected that this year’s Queen’s Counsel appointments will be announced in May. The NZBA will again host dinners to celebrate those appointments on a regional basis. Details will be provided to all members soon after the appointments are made.

Melissa Perkin

Member Benefits Portfolio 2015

By Melissa Perkin* Over the past year, the NZBA has expanded the range of member benefit services available to members. The details are available on the NZBA website and in the member benefits brochure which you will receive with your annual membership subscription renewal.

Our three group schemes, including the LexisNexis/NZBA Library Package, Marsh/NZBA Insurance and Office Max, are growing in membership numbers and we would encourage members to review the benefits that these schemes offer.

NZBA e-Library Package LexisNexis NZBA in partnership with LexisNexis offers an exclusive e-Library package to full members.

The collective buying power means significantly reduced rates to access an extensive range of both New Zealand and international electronic library content. In addition, those who subscribe to the

e-Library package are eligible for preferential rates on other LexisNexis products including significant discounts on hard copy titles. The low subscription cost enables subscribers to access over $75,000 worth of content.

Just one example of the positive feedback received from one of our members is “Very impressed by the range of resources available through this package. It constitutes a substantial legal library at your fingertips. It is also excellent value for money. Highly recommended.”

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In addition to the benefits on offer LexisNexis is offering an additional incentive. For existing NZBA package users, any successful referral of a new NZBA e-Library package will receive a complimentary 12 month subscription of any LN RED title of their choice. Any new NZBA e-Library subscribers who sign up before 13th May 2015 go in the draw to win a complimentary 12 month complete LN RED library (RRP value of over $50,000). The prize will be drawn and advertised through the NZBA communications by 19th May 2015.

NZBA Professional Indemnity Insurance - Marsh Membership to the Marsh/NZBA Professional Indemnity Insurance Scheme had a 14% growth in the last year. The Scheme recently included an additional option of cyber cover, to provide risk management and ‘best practice’ advice to NZBA members in conjunction with AIG Insurance. The NZBA CyberEdge Liability product provides access to the CyberEdge RiskTool, a single, web-based platform that will assist members in streamlining the risk management process. Members will have access to prepopulated online best practice advice and training.

We encourage members who are not currently using this Scheme to compare the competitive pricing and policy terms on offer. More information is available from Mark Rogers on ph (09) 928 3056 or mark.rogers@marsh.com .

Office Max OfficeMax has been keeping ahead of the trend away from paper and traditional office supplies by expanding its product range to meet the changing needs of its customers. This includes a product range well beyond stationery and includes wide range of tea, coffee and

leasing and purchasing coffee machines, furniture and technology such as printer/ copiers and tablets through our the NZBA/OfficeMax offer.

NZBA members received additional discounts off the OfficeMax prices on over 20,000 products. NZBA recently compared prices between OfficeMax and a major competitor on a list of office supplies, coffee and other items that NZBA members commonly purchase. We were pleased, to find that the prices for members of the OfficeMax/NZBA group scheme were 12% lower than the major competitor. OfficeMax also provides members with customised pricing on their high volume products to help members further increase their savings.

OfficeMax provides next business day delivery for most orders placed by 5.00pm and orders over $50 (ex GST) are delivered free.

Other Benefits The NZBA member benefits scheme has 30 companies offering special pricing or other deals available to NZBA members. We encourage you to look at the enclosed updated member benefit brochure, as well as the NZBA website, which has more information.

If you have any questions or would like to see some other products or services added, please contact Melissa Perkin at melissa.perkin@nzbar.org.nz * Melissa Perkin is the Executor Director of the NZBA and is on the Editorial Board of At the Bar.

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2015 LexisNexis NZ Limited. LexisNexis and the Knowledge Burst logo are registered trademarks of Reed Elsevier Properties Inc., and used under licence.

Arbitration: Lines Drawn By The Supreme Court

By Philip Rzepecky* Many cases occur, in which it is perfectly clear, that by means of a reference to arbitration, the real interests of the parties will be much better satisfied than they could be by any litigation in a Court of justice.

Philip Rzepecky

Lord Langdate, M.R., The Earl of Mexborough v.

Bower (1843), 7 Beav. 132.

If you listen to the conversation of local litigation lawyers, they will mention arbitration much more often than in the past. Anecdotally, arbitration appears to be more popular with litigants in New Zealand than it used to be. There has always been a significant amount of arbitration for disputes in traditional areas such as rent reviews and trading agreements, where arbitration is required by the terms of the applicable contract. But more and more these days litigants who are not bound to arbitrate are choosing this option rather than court proceedings.

The Supreme Court decided two cases concerning arbitration last year which are worthy of review. In Carr v Gallaway Cook Allan [2014] NZLR 792, where the parties had agreed to arbitrate after their dispute arose, the Court considered the validity of their arbitration agreement. In Zurich Australian Insurance Limited v Cognition Education Limited [2014] NZSC 188, the Court considered the application of the Arbitration Act 1996, where despite an arbitration clause in the insurance contract, Cognition commenced summary judgment proceedings in the High Court, on the grounds that there was no dispute to arbitrate. Zurich objected to jurisdiction and applied for a stay.

In these decisions, the Supreme Court has attempted to recognise the primacy of the parties’ mutual intention where they have either agreed to arbitrate after a dispute has arisen, or entered into a contract where the bargain between them requires that disputes which arise in future be arbitrated.

In Carr, Mr Carr claimed that his lawyers, Gallaway Cook Allan (“Gallaway”) had negligently acted on the settlement of a commercial dispute in circumstances where settlement did not take place on the due date and as a result the other party to the transaction was able to cancel.

The parties agreed to arbitrate. Following a full hearing, the 1

arbitrator dismissed Mr Carr’s claim finding that although the lawyers were negligent, this had not caused any loss.

Mr Carr appealed – relying on a term in the arbitration agreement which gave the parties a right of appeal to the High Court on any question of fact or law arising from the arbitrator’s decision. The clause provided: “The parties undertake to carry out any award without delay subject only to such rights as they may possess under Articles 33 and 34 of the First Schedule to the Arbitration Act 1996 (judicial review), and clause 5 of the Second Schedule (appeals subject to leave) but amended so as to apply to “questions of law and fact” (emphasis added).”

However it became common ground that this clause was contrary to the Arbitration Act 1996, which only permits a limited right of appeal on questions of law, and not at all on questions of fact (Clause 5 of Schedule 2). Gallaway, relying on this issue, objected to any appeal on questions of fact. Mr Carr’s response was to apply under Art. 34(2) of the Act to set aside the award on the grounds that the entire agreement to arbitrate was invalid. He also sought relief under the Contractual Mistakes Act 1977, and for leave to appeal.

In the High Court, Justice Ellis decided that the words “and fact” could not be severed from the rest of the agreement, and therefore rendered the entire agreement invalid. In reaching this outcome, Justice Ellis decided that the Court must consider the relative importance of the clause to the parties and whether or not they would have entered into the arbitration agreement without it. She relied on the following factors to reach her decision: •

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•

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The parties had placed the words in italics and expressly noted this emphasis which amounted to an express indication of importance, and therefore was objectively particularly critical to the parties; Pre agreement correspondence indicated that Gallaway would not have entered into the arbitration unless an appeal on questions of fact was available; Under these circumstances severance would unduly improve the contractual position of Gallaway; The interests of justice did not support that outcome.

Following this reasoning the Court decided that the arbitration agreement was invalid, and therefore the award must be set aside.

Gallaway appealed successfully. In the Court of Appeal,

Philip Rzepecky was one of Cognition’s counsel in the Supreme Court;

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Gallaway argued that the arbitration agreement was an agreement to arbitrate with an ancillary right of appeal – making a strong case for severance of the invalid part of the appeal provision and preserving the award. Mr Carr submitted that the agreement to allow an appeal on questions of fact was integral to the arbitration agreement and therefore there should be no severance rendering the entire agreement invalid.

The Court of Appeal decided that the severance of the words “and fact” did not materially alter the essential nature of the parties’ agreement to arbitrate. The Court emphasised the importance of giving effect to the contractual relationship between the parties especially where the contract had been substantially performed.

The fact that the prohibition was statutory and easily recognised by the parties at the time that they entered the arbitration agreement was also an important factor.

Notwithstanding these findings the Court of Appeal also considered that it had a broad discretion under art 34 of the Act, and that the policy of the Act and the law generally was against setting aside the award.

possible. However if severance of the offending clause would effectively alter or nullify the main purpose of the contract then severance would not be possible. The Court considered that these general principles were consistent with the Act’s private contract based approach – albeit subject to limitation of the statutory scheme.

The Court decided that the right to appeal issues of fact was so fundamental to the parties’ decision to arbitrate their dispute that they could not be severed. This was based on the following factors: •

•

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The highlighting of the words in italics followed by “(emphasis added)”made clear objectively that the scope of appeal rights went to the heart of their agreement; The pre-contractual email exchanges between the parties and their lawyers highlighted that the appeal rights were central to their agreement; The dispute involved allegations of negligence which would be heavily fact driven – so the right to appeal on issues of fact would be fundamental.

That left the third issue in relation to the exercise of the The Supreme Court unanimously rejected the Court of Court’s discretion under art 34 of the Act. It appears that Appeal’s analysis and decided that the offending term the parties agreed in their submissions that art 34 provides could not be severed, and the award must be set aside. a reasonably broad based discretion with reference to the The Court identified three issues for its determination: categories set out, and the policy and purpose of the Act. The Court considered that art 34 provided it with a residual a) First, what constitutes an “arbitration agreement” for discretion not to set aside an award even if the grounds for the purposes of the Arbitration Act? doing so were made out. Gallaway submitted that under b) Second, can the ineffective words in cl 1.2 be severed the circumstances it would not be appropriate to set aside from the remainder of the parties’ agreement? the award where Mr Carr had not even established any c) Third, if they cannot, so that the parties’ arbitration mistake in fact or in law. Mr Williams QC who appeared for agreement is invalid, should this Court set aside the AMINZ, as an intervener, submitted that the Court should award under art 34(2) (a) (i)? adopt a pro-enforcement approach – consistent with international practice and which required the upholding of The first issue arose because Gallaway argued that the awards in all but the most exceptional circumstances. arbitration agreement as drafted by the parties included an undertaking to arbitrate their dispute, which was separate The Court held (Arnold J dissenting) that the absence from the clauses which regulated the procedure which of a valid arbitration agreement which would justify an the parties agreed to. The Supreme Court rejected this award went to the heart of the parties’ intention to arbitrate argument instead deciding that within the scheme of the their dispute. Thus unless there were special intervening Act, the term “arbitration agreement” had a broad meaning circumstances, it would not be appropriate for the Court which included the procedural clauses. to exercise its jurisdiction against setting aside the award.

Interestingly Arnold J in dissenting considered that In respect of the second issue the Supreme Court decided arbitration law has an overlay of public law and policy and that the offending provision could not be severed, and therefore a purely private law approach based on contract therefore the arbitration agreement was invalid. The Court was inappropriate. He would have upheld the award. emphasised that there was no overriding test and that each case must be decided on its particular circumstances. On In Zurich, the plaintiff Cognition had cover under a trade a review of the authorities, the Court considered whether or protection policy issued by Zurich which it had taken out not severance was justified was a matter of construction of in respect of its business in the Middle East. Following a the arbitration agreement to find an objective consideration client default on payment, Cognition notified a claim under of what the parties had agreed by the words which they the policy. Zurich rejected the claim. The policy included had used. Where the invalid clause was subsidiary to an arbitration clause. Cognition commenced summary the main purpose of the contract, severance may be judgment proceedings in the High Court. Zurich filed a

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protest to jurisdiction and applied for a stay in reliance on the arbitration clause in the policy.

This immediately raised a procedural issue as to which application should proceed first – the protest or the summary judgment. Cognition argued that the summary judgment should be heard first or at the same time as the protest on the grounds that the summary judgment test applied to both. Zurich argued that the threshold test for a successful protest to jurisdiction was narrower than for summary judgment – Zurich only needing to establish that its defence was bona fide, and that it was not abusing the court process. Associate Judge Bell agreed with Cognition.

summary judgment test. It relied on the Law Commission’s reports which Cognition submitted recommended retention of the summary judgment procedure even where the parties had agreed to arbitrate. This was on the basis that if the plaintiff was entitled to summary judgement then there was no dispute to refer to an arbitrator. Cognition also referred the Court to a number of New Zealand authorities which it submitted supported this approach.

The Supreme Court agreed with Zurich’s approach. It accepted that either approach was open on a reasonable interpretation of the words in art 8(1). However the more natural meaning was the narrow one. The Court relied on the following factors to support this decision:

Zurich appealed. The Court of Appeal agreed with Bell AJ. Zurich was granted leave to appeal to the Supreme Court on the following issue: “Was the Court of Appeal correct to conclude that there will be no dispute for the purposes of art 8(1) of the First Schedule to the Arbitration Act 1996 unless the defendant has an arguable basis for disputing the plaintiff’s claim as is sufficient to resist an application for summary judgment?”

Art 8(1) provides: “A court before which proceedings are bought in a matter which is the subject of an arbitration agreement shall, if a party so requests not later than when the party’s first statement on the substance of the dispute, stay those proceedings and refer the parties to arbitration unless it finds that the agreement is null and void, inoperative, or incapable of being performed, or that there is not in fact any dispute between the parties with regard to the matters agreed to be referred.”

The emphasised words were included in the New Zealand Act on the recommendation of the Law Commission (which subsequently recommended their retention on a later review). These words do not appear in the UNCTRAL sponsored Model Law on International Arbitration upon which the Act is based. The interpretation of these words therefore would answer the issue on appeal.

Zurich argued that a narrow approach was justified on the grounds that the parties had agreed to arbitration of future disputes in their contract and that this should be upheld. As a result the court should not be able to examine the merits of the dispute. However the court could intervene if there was any abuse of process by the defendant, in circumstances where its defence was not bona fide or the defendant was purely creating a dispute for delaying tactics.

•

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•

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The added words only act as a filter for cases where a defendant is obviously just playing for time – and thus abusing the court’s process; Art 8(1) also applies to arbitrations which may take place outside New Zealand (the Zurich policy had an option for arbitration in Sydney), and therefore New Zealand’s international obligations are engaged.

The narrow interpretation was more consistent with these obligations; The Act recognises the right of the parties to an arbitration agreement to choose this option, and if possible this should not be affected by the local law of the country where the arbitration is to take place; That contrary to Cognition’s submission, the Law Commission and subsequently Parliament intended that the added words would capture the type of case included in the narrow interpretation.

The Supreme Court unanimously allowed the appeal.

Interestingly the parties had advised the Supreme Court that they had settled their dispute following the hearing and before judgement. Nevertheless the Court decided to issue a judgment as it considered that this case raised issues of public importance.

In these two decisions the Supreme Court has shown a preference for taking a strict approach to the application of the law and practice of arbitration to reflect the sanctity of the contractual bargain of the parties who have submitted to arbitration, and to uphold New Zealand’s adoption of the Model Law in the Arbitration Act 1996.

The cases do however show that arbitration law can be technical, and that it is necessary for lawyers to be across all developments if their client’s intend to elect the arbitration option. * Philip Rzepecky is a barrister at MGP Chambers who specialises in insurance, marine insurance, maritime law, commercial litigation & mediation.

Cognition argued for a broad approach which adopted the

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It’s That Time of Year Again…

By Lisa Mills* With the beginning of the financial year comes annual subscription time for the NZBA. With this newsletter you should have received your subscription invoice for the 2015-2016 financial year. This invoice is not due until 20 May but we appreciate payment before or around that time.

Best way to pay The best way to pay as far as we are concerned is by bank transfer with your name and invoice number as the reference. Bank account details can be found on the invoice. This payment method impacts less on the association in time to process and fees.

Other ways to pay This invoice can be paid by cheque (please include your remittance when paying by cheque) or by credit card.

Details for paying by credit card are as follows: From the NZBA Home page click on Login or Register

Type in your email address and password. If you do not know your password please choose ‘I’ve forgotten my password’ and a new password will be sent to the email address we have for you on our NZBA database. You will be asked to update your password.

Once you do this you will see the options you have to change your profile on the NZBA including editing your contact details, changing your address, uploading your photo or CV, amending your areas of practice and of course to include these in our “Find a Barrister listing” you need to update your privacy settings to public.

But I digress… back to paying your account - choose any of the headings and then from the side menu choose account.

Choose ‘Please login or sign up’ (left hand side of screen) – please note - as a member you always need to use this when entering the website – you are not a new user, even if you have never logged in before, you have a member profile therefore you are not a new user.

Directly under your name there is a box which says make a payment. Click on make a payment.

Type in the amount you wish to pay and the invoice number as a reference.

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From High Court Chief High Court Judge Hon. Justice Helen Winkelmann I will report more fully to the profession and public shortly on 2014 but here are some matters of interest for the profession.

Analysis of discovery and case management rules reforms A review of the changes to discovery and case management rules which came into effect in 2012 and 2013 suggests increasing co-operation between counsel and a reduction in the number of case management events in the court (churn) have occurred. These are pleasing results. A summary of the findings can be found on the Rules Committee page on the Courts of NZ website at http://www. courtsofnz.govt.nz/front-page/ about/system/rules_committee/new Workload In addition to the court’s usual workload in crime, last year there were several very lengthy criminal trials including the 20 week long South Canterbury Finance fraud trial and two drugs trials in Auckland of 12 and 18 weeks respectively.

Last year the criminal jurisdiction, category 4 (murder/ manslaughter) criminal cases were able to be given a trial date generally within 12 months of first appearance. Protocol cases which have been directed to be heard in the High Court do not have such prompt dates due in part at least to teething problems with the process.

In the civil jurisdiction, the GFC-initiated bubble in new filings has receded and time to trial continues to trend downward. Other changes likely to have had an effect on timeliness are the changes to case management rules and setting down practices. Below is a time series graph of average age for civil trial disposals.

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In the criminal jurisdiction, despite a drop in the number of criminal cases on hand, the estimated days to hear those cases has remained reasonably steady for the last four years as shown below (the recent rise is due a number of particularly long trials scheduled for Wellington this year).

Reform The Judicature Modernisation Bill had its second reading on 18 February.

The Rules Committee is to consult with the profession on a set of rules for access to court records. These rules are designed to be easier to follow and to provide a clearer framework as to how such applications will be decided.

The revision also combines rules for access to both civil and criminal records.

The Court of Trial Protocol (which lists the classes of

offence for which a High Court decision is required as to the court in which the defendant will be tried) has been reviewed and replaced with a new version that applies to offences committed on or after 1 February 2015. Offences from the Financial Markets Conduct Act 2013 have been included along with clarifications to the criteria for sexual violation of a complainant under 16 and aggravated robbery. From now on there will be an annual review of the Protocol to take into account any new legislation.

Admission ceremonies The Court has clarified its approach to admission ceremonies in smaller provincial centres. The Court recognises the desirability of admitting candidates to the Bar in their local community. However admission ceremonies, like all business of the Court, depend on the availability of a judge. The practice in larger centres is to programme time for admission ceremonies but it is difficult to anticipate whether and when any applications might be heard in smaller centres.

Where a candidate wishes to be admitted in a small registry, the admission ceremony will be arranged when a judge is scheduled to sit there as part of normal circuit

duties. Candidates should be aware however that if other proceedings set down for hearing on that day in that location do not proceed, the ceremony may be rescheduled to a later date and that this may occur at short notice. We will make every effort to ensure this does not occur.

Contact with the profession Last year, I met with practitioners in Tauranga, Hamilton and Dunedin. This year I hope to visit other provincial centres. Regular meetings with representatives of the profession in Auckland, Wellington and Christchurch will continue.

Judicial matters Three judges have retired in recent months: Justice Panckhurst, Associate Judge Abbott and Justice Ronald Young. Justice Goddard will retire from 7 April to chair the British Independent Panel Inquiry into Child Abuse.

Justice Muir was sworn in in November and Justice Hinton in January. Both judges are based in Auckland.

Justice Nation, who will sit in Christchurch, was sworn in on 20 February. Two judges have changed common rooms. Justice Brown is now based in Wellington and Justice Whata is based in Auckland.

Update from the Chair of The Criminal Rules Sub-Committee Hon. Justice Simon France The Criminal Rules Sub Committee was formed to assist the Rules Committee following the enactment of the Criminal Procedure Act 2011. The current membership is: • • • • • • • •

Hon Justice Winkelmann (Chief High Court Judge) Hon Justice Simon France (Chair) His Honour Judge B Davidson Mr D Jones QC Ms Charlotte Brook Mr Mark Harborrow Ms Lynn Hughes Ms Megan Anderson (Ministry of Justice)

The primary focus now is to monitor how the Criminal Procedure Rules 2011 are working. If there are aspects of the Rules that you consider could be improved – either in their content or implementation – please raise it with a Committee member, or one of the professional bodies.

One change that is being considered concerns the filing of formal statements. The present requirement is that they be filed 25 working days before the trial call over (r 5.5(1)). This timeframe seems to be the subject of routine extension. It is undesirable in principle to have a situation such as that, and of course it means that on each occasion there needs to be

an application. A proposal to alter the date to 15 working days, thereby aligning it with the Crown memorandum, is presently being consulted on. Replies to date are supportive of the change.

An example of monitoring implementation is the case management memorandum (CMM). Acting on feedback, and following consultation, members of the Committee, together with the Ministry, have developed a new version. It is currently being tested in Christchurch. The early response is positive, and it is hoped that a wider implementation will soon occur.

The Committee is also reviewing existing Practice Notes.

The aim is to convert as many as possible to Rules, so as to reduce the number of rule sources to which practitioners must go. Many Practice Notes are in fact obsolete and will be discontinued. It is hoped in the near future to incorporate the Sentencing Practice Note into the Rules, after which decisions will be made on the remainder.

Simon France High Court, Wellington Chair, Criminal Practice Rules Sub Committee

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Final Sitting Speech Hon Justice John McGrath Friday 6 March 2015

My career in the practice of law has, to my great fortune, had both private practice and public sector practice phases. In the former phase I was a partner with a general practice in a small law firm, which my grandfather had established, and in which my father was a partner with me. I moved to a Hon Justice John McGrath bigger law firm, Buddle Anderson Kent & Co for focus on litigation. Following a merger it became Buddle Findlay. In these years I learned much from my father, in particular concerning the importance of public service, including service to the legal profession. I also had the advantage of working with three outstanding advocates: in sequence, R B Cooke QC, J F Jeffries and Gerald Tuohy QC. I also learned a lot from Sir John Jeffries about techniques of persuasion in advocacy, and about how to cross-examine.

I then spent enjoyable years at the independent bar which brought home to me the degree of individual responsibility counsel who practice in that environment carry for their client’s cases.

suggested, no particular reason why a public servant should have authority over legal business of government generally. That certainly was not the Attorney-General’s view but I did at times suspect that one or two Ministers had sympathy with it. But that was as far as it went.

Underlying the role of the Solicitor-General as law officers is the government’s responsibility to govern in accordance with the law. This is not an empty slogan.

The Solicitor-General works to ensure there is trust between the government and the judiciary whatever tensions may arise during their exercise of their separate functions. The Solicitor-General also seeks to ensure there is trust between those lawyers who act for the government and those lawyers who act against it. They must be confident that, in an adversary system, the Crown will not act in a way that abuses its position.

But the Solicitor-General also works to ensure that when the government seeks by lawful means to implement its chosen policy it is not impeded from doing so. This is achieved by the Solicitor appearing in the Courts, personally, in leading cases, and ensuring the Crown is represented by good counsel who are aware of their responsibilities in all cases. The Crown Law Office was pivotal to achieving this. I tried to organise it in a way that best enabled it to do so.

But the defining moment in my career in practice came in 1989 when Geoffrey Palmer, then Attorney General, offered me the position as Solicitor-General which was to become vacant. He did so as we were walking together up the central aisle of the Old Town Hall in Wellington in an academic procession for a graduation ceremony.

I had some warning this might happen and I recall accepting the offer before we got to the steps leading up to the stage, in case he developed second thoughts. At that point I left private practice for public practice as a public servant. I also assumed the responsibility of being the government’s senior advocate in the appellate courts and head of the Crown Law Office.

The decade I spent in the role involved many appearances in the High Court, the Court of Appeal and the Privy Council, most of which were seeking to uphold in judicial review proceedings, a position the government had taken, or appearing for the Crown on appeal in criminal proceedings. Novel issues were emerging in the Courts, prompted by new legislation during the late 1980s and 1990s concerning such matters as corporatisation of government trading entities and the link of that policy with claims of breaches of the principles of the Treaty of Waitangi. As well the Bill of Rights Act was passed in 1990 and its scope and effect on government action and statutory interpretation was soon extensively litigated in the Courts.

This was a time when there was a lot of restructuring in the public sector. I soon found out that there were some officials who were not convinced that in the modern public service there was any need for a Solicitor-General who had overall responsibility for conduct of the government’s legal business. Lawyers were seen as useful specialists, as were scientists and doctors, but there was, it was

These were the years in which the Court of Appeal, under the successive presidencies of Sir Robin Cooke and Sir Ivor Richardson, were developing New Zealand’s law taking it in new directions and in ways not easy for me at least to foresee. It was a huge privilege participating in so much of our legal history. It was also a roller-coaster ride appearing before them. It was also at times a sobering

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experience reporting to Ministers on what had happened to their pet policy.

As Solicitor-General, I also had responsibility for the conduct of the Crown prosecution system and came to know and respect many Crown Solicitors, who then as now, practice with colleague trial prosecutors in private firms in cities which are High Court centres. I think the Crown Solicitor system works well. Overall, being Solicitor-General was for me one of the most stimulating and the most exciting roles a practising lawyer could have.

In due course I was asked by another Attorney-General, Margaret Wilson, to accept appointment to the Court of Appeal and a new phase in my career began. After taking the oaths of office as a Judge, I noted that I was moving from a public office as the advocate for the interests of the executive branch of government to an office within the separate judicial branch. The judicial oath which I had sworn was my declaration of independence of my former loyalties to the government and of my commitment thereafter to uphold the rule of law as our society’s protection of the rights of the citizen. The concepts in the oath of impartiality and independence underpin our system of justice and would, I said, henceforth be my guiding philosophy.

Today’s ceremony accordingly marks the end of my public service in two branches of government. Bearing that in mind, I hope you will forgive me if I detour for a few minutes to raise a matter of constitutional kind that causes me some concern.

Our constitution is an informal one. It is not set out in any single document. It has been described as the product of a complex mass of forces of a political, legislative, prerogative and judicial kind. As a result the New Zealand constitution is found in some rules that have been enacted by Parliament, some rules of common law stated by the Courts and a number of conventions which are practices based on established understandings as to the proper exercise of powers. Most New Zealanders seem happy with this and so am I. I do not favour replacement of our arrangements with a written constitution at the present time. But I believe there are gaps in our constitutional arrangements which we need to be aware of if our informal constitution is to continue to provide a sufficient protection to our nation’s good government. And we also need to ensure that we do not inadvertently create new gaps.

The Constitution Act 1986 provides that Parliament continues to have full power to make laws recognising, with clarity, that Parliament is the supreme law making

power of the nation. There is no equivalent provision stating the role of the judicial branch, or indeed the underlying concept of the judicial function which is to uphold the rule of law.

That gap was filled, to some extent, when this Court, the Supreme Court of New Zealand, was established in 2003.

The legislation stipulated that nothing in it “affects New Zealand’s continuing commitment to the rule of law and the sovereignty of Parliament”.9 Interestingly, there is a provision, expressed in similar terms, in the Act of the United Kingdom Parliament, passed two years later, which provided for the establishment of the Supreme Court of the United Kingdom. That statute states that the Constitutional Reform Act 2005 (UK) does not adversely affect “the existing constitutional principle of the rule of law”.

To my mind, the provision in the New Zealand Act of 2003 was an elegant way of addressing concerns that the establishment of the Supreme Court should not alter the generally understood position of the different branches of government under the constitution. The roles of the Parliament and the Courts would remain the same. The inclusion of this statement in the Act that established the Supreme Court was also in my view appropriate legislative recognition that under our constitutional arrangements there is a system underlying our constitutional values. Parliament legislates and the Courts administer the law. The explicit recognition of these roles sends an important signal to those in executive government, including the public service which supports the government and the Courts. It also sends an important signal to the Courts themselves.

Commitment to the rule of law requires Judges to interpret and administer the law in accordance with constitutional principle. Judges may not restrict the true scope of the law to accord with individual notions of fairness in cases before them.

So what is my concern? It is that this statutory provision affirming our nation’s commitment to the rule of law will soon disappear from the statute book. It will be repealed if the Judicature Modernisation Bill, which recently received its second reading in the House of Representatives, is enacted in its present form. If that happens, in the new statute providing for senior Courts, we will no longer have this meaningful statutory recognition of both the judicial and the legislative roles.

It has been suggested that provisions such as section 3(2) of the Supreme Court Act might be better located in a revamped Constitution Act. Fair enough. But that outcome will take time to achieve, possibly a very long time. In the meantime there is a risk that an important

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recognition of constitutional principle will disappear from the statute book.

To sit as a Judge of the Supreme Court of New Zealand, for most of its first decade, and previously as a judge of the Court of Appeal, has been a great privilege. All Courts in our system have the task of elucidating and applying the law, but the Supreme Court has ultimate responsibility for doing so. Our Act recognises that the Court was established so that important legal matters might “be resolved by a Court that has an understanding of New Zealand’s conditions, history and traditions”. That general statement of purpose underlies much of the Court’s jurisprudence in its first decade.

The Court has, I believe, sought to assert its role in developing the law of New Zealand and guiding lower Courts, most notably in areas of constitutional law, including Maori issues and the Bill of Rights, Taxation, Contract and Commercial law, torts, land law, family law, criminal law and evidence law. What the Court has achieved in this respect came under close scrutiny at a great conference held by Auckland University’s Law Faculty last year to mark the Court’s first decade. The papers, which were mainly prepared by leading academic and practising lawyers, were enlightening and occasionally chastening. But the acceptance by a leading group of academic and practising lawyers of the importance of what the Court has been doing was reassuring. We are not here simply to provide another level of appeal.

Rather, we seek out cases which raise important legal principles or where the circumstances indicate that a miscarriage of justice may have occurred.

I want to thank a number of people. First and foremost the Chief Justice – thank you for your very kind comments today and for the support you have given me over my time as a Judge, especially during our decade together on this Court. Your arduous and wide-ranging responsibilities have not stopped you from ensuring that the environment in which the Judges of this Court work is one which stimulates wide ranging intellectual discourse and hard thinking about the important issues we address.

I have very much appreciated that.

My thanks also to the other Judges of the Supreme Court, Willie, Susan, Terence and Mark for their collegiality

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and support. I am also grateful for that of my retired colleagues who preceded them. I am pleased to see two of them, Sir Kenneth Keith and Bill Wilson, both of whom I have known in the law for many years, at this sitting today.

I also wish to acknowledge the presence of the former Chief Justice, Sir Thomas Eichelbaum with whom I had a most stimulating and constructive working relationship when I was Solicitor-General. And I remember the late Sir Ivor Richardson, who died at the end of last year. He was President of the Court of Appeal when I joined it and I learned so much from him during the whole of my life in the law.

Thanks also to the Secretary of Justice, Andrew Bridgman, both personally and as Chief Executive of the Ministry of Justice. The Court of course does not consist of the Judges alone and I want also to thank its Registrar, Gordon Thatcher, and his staff, without whose conscientious and principled assistance, we Judges simply could not administer justice. I also am particularly grateful for the service of the Court’s librarian during its first decade, Sarah Cleghorn, and all the Judges clerks who have worked with me as research assistants. And I am especially grateful to my associate, Deb Goodwin, for all she has done for me.

The pleasure in retirement will come from the greater flexibility it will bring in my family and recreational life.

Throughout my working life I have been sustained by the constant and huge love and support I have had from my wife Chris, our daughter Lucy and our son Tom. They are present today with their spouses Dougal and Göknil and our grandchildren Alex, Claudia, Ayla and Ozan. Many other family members are here, including my sister Caroline and my brother Gordon, who has come over from his busy practice at the Sydney bar. And other friends, some of whom have travelled long distances to be here.

And finally to all of you in the judiciary, the government and the legal profession who have come here today, to wish me well in retirement, thank you very much. * The NZBA thanks Justice McGrath for providing us with a copy of his speech from his final sitting.

Continuing the Conversation…The Fading Star of the Rule of Law

By Frances Joychild QC

This article has been previously published elsewhere.

On 7 November last year the Chief Judge of the High Court, Justice Helen Winklemann, gave the Ethel Benjamin address on the subject of civil law: Access to JusticeWho needs Lawyers? It seems she has illuminated the most critically important legal conversation of our time for civil law at least. I wish to participate in it and my contribution follows.

Frances Joychild QC

Access to Justice is not just a human right for individuals.

It is central to our constitution. It enables the rule of law. That in turn ensures all are treated equally under it and that we live in a peaceful, harmonious, free and democratic society. Over the past three years I have wondered increasingly if I am in a nightmare and have woken in Charles Dickens’ England. On a daily basis I clear my email and phone messages or answer the phone to at least one person in dire and desperate need of legal assistance, often with an extraordinary legal problem and always with no-one to help them.

By the end of last year, I was turning away many more contactees than I could help. Like others, I take on legal aid cases and clients who can pay by only small instalment. I also do some pro bono work. However noone can run a viable practice without a healthy balance of paying clients. In recent months, several of those contacting me said they had already tried large numbers of lawyers – from legal aid lists given to them by the Ministry of Justice or from the phone book or internet.

One caller told me I was 20th lawyer he had tried. Often they had already been to a neighbourhood law office but lawyers there are no longer permitted to represent poor clients – only to advise. Even for those who remain eligible for legal aid, the repayment rules have got tighter and harsher and act as a severe disincentive to uptake.

Not only this, but the legal problems these people present with astound me. They are not the sort of problems that I have come across before and suggest to me that life itself has become an extremely harsh experience for lots of people. These experiences lead me to believe that the rule of law star is fast fading in this country and most of us have no idea this is so.

Legal aid as we know it today.

I understand fully why such large numbers of lawyers have withdrawn from the legal aid system. Everyone who has undertaken it in recent times has a story to tell.

It is a Byzantine system which at its best is demeaning towards the legal aid provider and an affront to her or his professionalism. Enough has been said already about the rates of payment and hours granted. The rates and fixed hours are appallingly inadequate in the context of the costs of running a legal practice. Those doing legal aid now should be recognised for the fact they are in part donating their work to enable the rule of law to continue.

If a person happens to be in the increasing minority who are still eligible for legal aid, and one has to be near to destitute to be eligible these days, legal aid providers have to explain to them nineteen matters relevant to their grant of aid. Of most deterrence to the client are the legal aid debt rules. The client is told they may have to repay some or all of the legal aid granted to them and that interest will be charged on all outstanding debt when the case is finished. In fact interest is charged at the rate of 8% (higher even than the Judicature Act rate) with a six month grace period. Further, the client is told that, in accepting legal aid, they are consenting to the Ministry sending the debt to a third party debt collector and to debt collection costs being added to the debt. Also they are to understand that the Ministry can deduct the debt via payments from their income or bank account. They are also waiving legal professional privilege.

I have witnessed these potential debt recovery actions as a terrifying prospect for persons in need of legal advice and assistance. To be eligible in the first place they are living on a level of income which typically means they will have significant debt burdens already and are living hand to mouth. While they can apply for a debt write off, that is a discretionary decision which will not be considered until the end of the case and after their legal aid repayments have been set.

Last year, one elderly client who lost everything following a business collapse three years previously and was living solely on national superannuation in a rented home, started having panic attacks when advised he had to repay approximately $6000. He had been treated already for severe depression in the course of his financial catastrophe. Those symptoms returned with a vengeance following that letter. I applied for a

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write off ($100 fixed fee for me) explaining all his financial circumstances and three months later he was successful.

One has to wonder why the Ministry didn’t write the debt off when they first set the repayments rather than creating such torment by bureaucracy.1 A woman I advised recently, who needed to challenge the application of a government regulation that, unfairly, was preventing her from being registered in her profession and so able to earn considerably more than her minimum wage job, decided she couldn’t take the risk of incurring further debt for her and her young daughter. The legal issues were far too complex for her to try to take the case on her own. Neither could she have spared the wages to do so.

The vast population who can’t afford a lawyer With many deterred from accessing legal aid and with the median New Zealand income at $31,200 and legal fees at the levels they are, the facts speak for themselves.2 From my personal experience I estimate that at least half the country could not afford legal services, were they to need them. Probably the figure is closer to two thirds.

A client I acted for recently on legal aid, in a professional negligence matter involving 4 to 5 witnesses and a hearing of 2.5 days, told me he spent a whole day in Auckland City with his mother, herself a professional, knocking on doors of law firms and barristers’ chambers.

The quotes for representation were around $100,000 and most of the money was required to be paid up front before legal work commenced.

Justice Winklemann has referred to the huge problems to the court of the unrepresented litigant. However as she also recognised there are those who can’t self-represent for many varied reasons. They don’t clog the court rooms but their inability to access the rule of law is a slow social poison seeping into the fabric of our society. For example, I understand that many small businesses in South Auckland use gangs to collect debts rather than filing for them in the District Court. In parts of society then, the rule of force rather than the rule of law operates.

Types of legal problems appearing Employment Court and Employment Relations Authority decisions are starting to show the tip of the malpractices in the New Zealand labour market. A 2012 ERA decision records a woman having paid $27,000 for a telemarketer job in Auckland.3 The employer required her to withdraw cash for the same amount she had been given in wages and return it to the employer immediately. She was also required to pay her own PAYE. Effectively she was paying to be employed.

I have acted for persons who paid an employer for a

job for their daughter who refused to return the money when they withdrew from the agreement. One client was working all night at a retail outlet 6 nights a week for nothing but food. Clients have told me they work with people being paid half the minimum wage; people working up to 14 hours a day without food breaks, sick leave, or holiday pay. Also I have heard of the very widespread employer practices of paying staff under the table to avoid tax or to record staff working many less hours than they actually work so as to avoid paying tax.

Two years ago I acted for a new New Zealander who borrowed many tens of thousands of dollars from relatives back home to establish himself in a small takeaway franchise. To cut a long story short, the franchisor embraced him into the business, suggested he pay the money straight away so he could get started and said they could sort out the contract the following week.

The contract was the most oppressive my client’s lawyer had seen in thirty years of practice. He tried to negotiate its terms. Within days of advising he would not sign the contract, my client was manhandled out of the premises by security guards and locked out. His money was not paid back to him. That happened 18 months later, only after proceedings were filed and a hearing loomed. I was about the eighth lawyer my client had contacted for help.

Some of the most disturbing and alarming cases I have dealt with recently come from citizens’ dealings with departments of state. The most vulnerable group in New Zealand, and the most stigmatised, are without a doubt income tested beneficiaries. There are increasingly large discretions held by WINZ officials largely without legal overview by independent lawyers. The rule of law fades in such situations, even despite the best meaning and well intentioned officials.

I have heard regular complaints of benefits being randomly cut off, without notice. And it taking weeks or even months and numerous phone calls or visits to WINZ offices to get them reinstated. Often these cut offs are the result of a mistake on the part of the WINZ system (e.g. the medical certificate had been delivered on time but hadn’t made it to the file) or for reasons any fair minded person would consider perfect justification for not being able to comply with a job seeker condition.

Affected beneficiaries, including their children, who are already living a hand to mouth existence, are plunged into sudden dire poverty. Such behaviour on the part of a government department would have been unimaginable in New Zealand, even a decade ago.

One family I dealt with in November on another matter had three children under ten and were without any WINZ support other than two food grants - for months last year

His financial circumstances are known as both the client and lawyer have a duty to let the Ministry know of any change of circumstances that might affect legal aid eligibility.

2 Statistics New Zealand; NZ Income Survey, June 2014.

3 Jingxin Tian v South Pacific Ltd [2012] NZERA AC 3675350263 1

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after the parents work stopped. The benefit was finally paid after the landlady, who had issued an eviction order but then felt worried about their desperate plight, went down to the WINZ office with the client. Miraculously a cheque for back payment of benefit was written out. The harm inflicted on the parents and children in that time, (eg hunger, food insecurity, power insecurity, home insecurity, inability to use transport, stress, sleeplessness, family disharmony) will have consequences for decades.

Staff have so many discretions over beneficiary entitlements and beneficiaries are so dependent on their benefit to meet their most basic needs, that the vast majority are too afraid to rock the boat. For several years now persons have been unceremoniously and unlawfully removed in droves from sickness and invalids benefits and subject to punitive job search conditions for which many are not equipped mentally or physically. They often end up off benefit entirely. Their only recourse is to a Medical Appeal Board (MAB) panel and then to judicial review.

They cannot access the Social Security Appeal Authority.

Clearly they have no money to employ a lawyer. Most of the problems they encounter are not covered by legal aid.

Certainly the rules of natural justice appeared foreign to the MAB panel I sought to review judicially. Likewise the assessing GP appeared to be acting as an arm of WINZ rather than as an independent health professional. But my proceeding never reached the courts. It was made impossible not to settle. One could sense the Ministry concern that a test case challenging the practices surrounding removal from benefit had to be avoided if at all possible.

Solutions What is evident is that there is a huge middle and low income untapped legal market. There are many cases in these markets that can be financially viable. For example one young lawyer with six years’ experience told me last year that she persuaded her firm to let her take a claim against an insurance company where the client was impecunious. The case was settled with full reimbursement to the firm and a very fair payment to the client.

Last year I offered a law graduate 20 hours work a week.

Other barristers have made up the rest. He has enabled me to take on many more cases from the untapped market. He is having great fun, learning tremendous and varied skills and feels a sense of satisfaction. He has worked in contract, tort, employment, insolvency, bankruptcy, human rights, professional negligence and privacy. Yes the supervision is something I wanted to avoid but the counterbalances have made it a positive successful step. There is the pleasure of seeing right done by people and their lives being put back on track or at least having had a voice and being able to put a matter to rest. There are some expressions of humble appreciation and gratitude. There is also the pleasure 4

in helping someone launch their own career and the friendships that emerge as a consequence.

Another very wonderful thing happened to me last year.

I was approached by a person describing himself as a retired judge in his eighties. He offered to provide me with pro bono assistance one day a week. Not only was I touched by the generosity but deeply impressed by the quality of the work. He has reviewed the complex claim of a person wanting to instruct me and advised me on it; drafted a letter in a complex issue surrounding government policy and regulations and is now undertaking a series of interviews with a pro bono client with a very complex fact situation. Another barrister offered a spare room in her chambers for him to work and interview clients in. A former colleague has contacted me on her pending retirement as a lawyer. She too has offered to do some pro bono work.

There are many graduates and new lawyers keen to throw themselves into the market and learn skills. There are many retired lawyers (be they former lawyers, barristers and judges) who may likewise be open to making such contributions for other lawyers and barristers. There are also many high earning barristers and lawyers, who may feel they have earned enough to make unpaid contributions.4 How to put all this together. Perhaps the law societies or Law Commission could assist by providing information and discussion papers reviewing successful overseas models.

Why not a firm with fee earning lawyers or a barrister’s chambers who also service the untapped market by using recent graduates supervised by senior lawyers (retired or otherwise working pro bono)? Some cases would be part paying (as is legal aid) some with significantly reduced fees; some on conditional fee arrangements and some pro bono. Firms could determine their specialty be it public law, bankruptcy, employment law etc. Perhaps there could be charitable donation rebates or other fiscal incentives to undertake such work.

For income tested beneficiaries, who are completely impoverished and have ongoing dealings with government departments, perhaps a special clinic specialising in social security law is the answer. Not only is social security law highly complex but the relationship between client and department is usually in motion, rather than static. There is unlikely to be any way of earning money out of such a practice, unless it is funded. Ideally there would also be a Social Security Ombudsman, something like the Banking and Insurance Ombudsman – though publicly funded. That too could have law graduates and senior law students.

We are a profession of talented and creative people. Let’s keep talking. I am sure there are many possible solutions that can emerge from our collective thinking so that we can play our role in reversing the fast fading of the rule of law.

Of course some already do this. Several law firms act for clients pro bono. These are often organisations as opposed to individuals however.

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Book Reviews Our reviews in this issue cover two books that grew out of theses. The Law Emprynted and Englysshed, by Judge David Harvey, results from his PhD thesis and considers the changes in legal thought and culture that were brought about by the printing press. It focusses on the 16th and 17th century.

Natalya King’s book “Raising the Bar” began life in the form of her Masters’ thesis. This book is forward looking and asks what changes we need to make to ensure that women play a fully productive role in the legal profession and in business generally. This book is a must read for a country that slipped in world gender gap rankings from 7 in 2013 to 13 in 2014.

The Law Emprynted and Englysshed

By Judge David Harvey* 2015, Bloomsbury Publishing PLC The Law Emprynted and Englysshed is a book about what happened when lawyers were confronted with the disruptive changes wrought by the first information technology Judge David Harvey – the printing press. The book considers the impact of the printing press within the context of the intellectual activity of the English legal profession in 16th and 17th centuries.

Up until the introduction of the printing press the culture and practice of law relied on the communication of legal information by oral and manuscript means. The legal profession had developed sophisticated educational processes and practices based upon the oral-aural system along with the utilisation of self-created manuscript materials. For reasons discussed in the book these practices continued for some considerable period of time after the introduction of printing. Prior to printing the manuscript “Law Reports” that we know as the Year Books together with a very limited number of texts and treatises the best known of which were Littleton’s Tenures or Tenores Novelli, Bracton’s De Legibus et Consuetudinis Angliae and Glanvil’s Tractatus de Legibus et Consuetudinibus Regni Angliae, there were lesser known manuscript works and collections of cases that circulated among lawyers such

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as the note books of lawyers and judges which did not see print until they were uncovered by the investigations of legal historians such as Sir John Baker and were published by the Selden Society.

When the printing press was introduced into England by Caxton in 1475 it immediately provided an alternative to this culture. Printed law books – law reports, abridgments and treatises – became increasingly available and were used by lawyers and students.

A number of lawyers rapidly adopted the printing press as a means of communicating legal information and one in particular, John Rastell, was a printer himself. He was related to the family of Sir Thomas Moore and was part of the intellectual group with which Moore was surrounded. Rastell not only saw the advantages of disseminating legal information but was one of the early proponents of printing legal information in English as opposed to law French or Latin. The “englysshing” - his spelling - of legal information accompanied the development of the printing press, hence the title of the book.

A tension arose as the advantages of print were recognised by the authorities – the Church and the State. But the qualities of the printing press, which have subsequently been identified by Professor Elizabeth Eisenstein in her book The Printing Press as an Agent of Change, also turned out to be the disadvantages as the Authority struggled to regulate the vastly increased flow of information that the printing press enabled.

In a chapter which considers the early regulation of the

new technology it is demonstrated that the law was an unwieldy instrument in attempting to resolve this tension. In addition a number of competing interests had their own agendas for regulation of the printing trade, not the least the Company of Stationers, a trade guild, who were interested in ensuring that the trade of printing was restricted only to its members and was not practised by any others. The book suggests that rather than being an instrument of state control of the medium, which is the received wisdom, the Stationers were interested in industry control for their own interests and those of its members and sought to maintain its control through litigation before Star Chamber.

The book examines the way in which lawyers were educated and carried out the practice of law in the 16th and 17th centuries and how it was that there was a willing and interested audience for printed materials. The contextual background for printing the law however was not only restricted to lawyers but to a wider interest group who used the education provided by the Inns of Court as a preparation for local or county administration or for the broadening of a general education.

The book also examines the business of law printing and the way in which lawyers and printers worked together to produce printed material. The wider impact of humanist thought cannot be overlooked in this examination but at the same time the reasons why print and manuscript and some of the earlier oral-aural practices of lawyers continued and co-existed is considered.

The book moves on to examine the types of law books

that were printed in the 16th and 17th centuries, starting with printed reproductions of manuscript works such as the Year Books, statutes and abridgments, moving to what motivated Edmund Plowden to have his Commentaries printed – the first law reports that we would recognise – together with the development of other law publications.

As the examination moves into the 17th century it becomes clear that a much wider range of legal texts were printed, some of which were for specific interests groups including a small book which must have been for a very limited niche market entitled The Orders, Lawes and Ancient Customes of Swanns.

The examination of law printing in the 17th century concludes with a lengthy discussion upon the oeuvre of Sir Edward Coke.

The book concludes with the suggestion that as far as lawyers were concerned, the introduction of the printing press was not as revolutionary as Professor Eisenstein might suggest but rather provided an evolutionary example of the way in which a new technology can impact upon the law. Parallels inevitably can be drawn with new information technologies of the 20th and 21st centuries particularly as we move into the Digital Paradigm and perhaps the way in which lawyers once responded to a new information technology may provide lessons for us today. * David Harvey is a District Court Judge, a part-time lecturer in Law and Information Technology at the Faculty of Law, University of Auckland, and author of leading IT text, Internet.law.nz, now in its 3rd edition (with a fourth edition due this year).

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Book Review - Raising the Bar: Women in Law and Business

By Jacqui Thompson Natalya King* 2014, Thomson Reuters New Zealand Ltd

In her forward to Natalya King’s book1 Equal Opportunities Commissioner, Dr Jackie Blue, comments that although more women join law firms as juniors, men continue to dominate the top levels of the profession Natalya King LLM as partners. For all the strides that women have made, they still have not achieved gender equity. The temptation is to say that it will come in time. After all, the 2014 Gender Gap Report2 ranks New Zealand as no. 13.

The problem is that we have slipped since in 2008 when we were at no 5. In 2013 we were at no. 73. Our ranking for economic participation has gone down from 15 to 30. In particular, the gender pay gap has widened. Any progress we are making is glacial. In 2012 it was reported that it would take 35 years to achieve boardroom equity at our current rate of progress4. That will be too late for our daughters. It was certainly too late for those women we lost from the business world over the last two decades.

Raising The Bar began life as King’s Masters’ thesis. In many ways, its academic approach is one of its greatest strengths. It isn’t written as polemic, tirelessly hectoring the reader.

However it doesn’t just set out facts, figures and theories. It translates these into everyday impacts by combining them with case studies. The book asks what is it like to be a woman in law and business? And most importantly, it tells both women and their employers what they can do to change that experience. This is a book that should be read by both men and women, and by both worker and employer. The gender gap is not a woman’s issue; it is a societal issue. And it isn’t a p (v) World Economic Forum, The Global Gender Gap Report 2013 3 Gender Report 2013 p22 4 Human Rights Commission New Zealand Census of Women’s Participation 2012 (Wellington, November 2012), p2.

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male v female issue. The book does not approach the situation as being about blame. It recognises that it is the responsibility of both women and men to change the situation.

King structures her book to begin by identifying the problem and why it matters. She considers the historical progression and how we have got to the position where law is one of the professional services with the worst performance in gender equity, using a 2012 survey of women in the law to illustrate this. She then considers why progress is being held back.

The final part of her book identifies tools for change, pulling together proven strategies from New Zealand companies with suggestions from lawyers’ experience.

King says that she wrote the book because she was tired of reading the same statistics and having the same conversations about the lack of progress in New Zealand’s corporate and professional services, and in particular law firms. As a recent graduate when she wrote it, she was looking ahead to what her career might be, and on any view, it is a sobering picture for women entering the profession. In 2014 of those admitted to the profession, 60% were women5. This represents a steady trend since 1993 when for the first time more women were admitted than men.

But while more women are entering the profession, there is still a low rate of achievement at the highest ranks.

The 2015 New Zealand Law Society annual Snapshot of the Profession6 shows that areas of significance to the gender gap continue to be retention of women in the profession and the rate at which women progress to the higher ranks of the profession. A more difficult area of concern to track is remuneration.

These concerns are reflected across the business world. But the response, as King’s book shows, is different in each sector.

In law, of those who were admitted between 1980 – 1990, 53% are currently practising. Thirty-nine percent of the women who were admitted in that period have practising certificates, compared with a 64% male retention rate.

5

2

20

6

New Zealand Law Society, “Snapshot of the profession”, 2015 Law Talk 859, p 7 at p 10.

Ibid.

Jump 20 years to the 2001 – 2010 decade and the picture improves. That decade shows an overall retention rate of 71%. The retention rate for women is 66% and for men it is 80%. However these figures don’t necessarily reflect voluntary choices. Times of economic struggle mean that people will remain in jobs they don’t like because of a lack of employment opportunity in other areas.

One of the key problems when assessing the extent of the problem is that there is little or no transparency in income setting. King quotes a woman, called Charlotte, in the finance sector who describes her company’s detailed gender diversity policy. The company claimed a nearly 50% gender split in management roles. However they redefined management to include a lower rank tier in order to achieve this status. The reality was that there were very few women in the higher tiers. Charlotte comments that she doesn’t know if there is equivalence of pay but she cites examples of women being promoted to a higher rank without a commensurate pay increase and being instructed that they cannot tell anyone they have been promoted. She mentions cases of women leaving a role after not receiving a pay increase and the role being regraded and a male appointed at a higher rate. She also cites examples of women being paid around $40,000 less than the median for that role7.

This book is not a series of complaints about how bad things are. It helps to identify specific problems and solutions to these. Some of the problems relate to issues such as unconscious bias and ingrained discrimination.

King relates a fable about the giraffe and the elephant. The giraffe, who was a woodworker, built the perfect giraffe house for himself and his family. While working in his workshop he noticed the elephant, another good woodworker, coming down the road. The giraffe invited him into to explore joint work opportunities. As the door was not big enough for the elephant, it had to be enlarged. Once the elephant got into the building, he suffered a series of misadventures in which he accidentally broke the giraffe’s work because of his size. The elephant was feeling very much ill at ease. The giraffe suggested that it might be easier if the elephant joined an aerobics or ballet class to “downsize” himself. Thinking it over, the elephant said that while that might work, he was not convinced that a house designed for a giraffe would ever really work for an elephant, not unless there were some major changes.

The fable, says King, illustrates that unconscious bias doesn’t require a specific intent to exclude and may not necessarily result in any direct harm or hurt to a person.

It can manifest itself in a number of ways, such as expectations about how women should behave (warm, nurturing v overly aggressive), expectations about women

and their family obligations or lifestyle factors, and even expectations that women will take on the routine, nonbillable or “grunt” work without complaint or reward.

The final section of the book is the key to change. It looks at ways of effecting change from policy through to concrete steps to take. Key to this is the desire to effect the change. Apart from social responses, King has outlined the business benefits of gender diversity, so if employers are still not sure if they can be bothered take any steps at all, they may need to reread Chapter 3.

King says that true change requires legislative and social responses, personal drive and workplace changes. One way of looking at it is that legislative response is often driven by the social response which in turn results from personal and workplace responses. In other words, the micro will alter the macro. The secret may be to just get started by doing one thing and building on that. A good place to find that first step is in Part 6 of this book.

As the Secretary–General for the United Nations recently commented8 it is now clear that achieving gender equality will require the concerted efforts of the private sector. The good news is that the dialogue about the gender gap is getting louder. In 2012 and 2013, the New Zealand Bar Association co-hosted two seminars9 for women lawyers presented in response to concerns from senior women in the profession, including a QC and a High Court Judge, about how women were not rising to senior levels as lawyers.

Talking to the attendees afterwards revealed a range of views from “I don’t feel I am treated differently from male colleagues” (mostly expressed by younger women) through to “I work twice as hard as my male colleagues for half the recognition – including financial and professionalism advancement” (from women who had been in the profession for a while).

At the Wellington seminar Justice Susan Glazebrook discussed the misconceptions of the gender gap10. She quoted a World Bank Youtube campaign Think Equality for Women and Girls. At the end, after asking “What can I do?” the video gives a list of actions including “discuss, debate, yell, speak, fight, vote, demand, change”. Let’s do it, suggested the Judge. King’s book is doing that. It is a critical contribution to the debate that will allow the discussion to be heard and acted on. But more importantly, it is an opportunity for those responsible for the employment, welfare and advancement of their staff to consider what steps they can take right now – rather than waiting 30 odd years for our children to have chances so many women did not have in the last two decades. * Natalya King was a litigator at Buddle Finlay in Wellington before moving to an inhouse position at the Bank of New Zealand. She is in the process of relocating to London.

King, N Raising the Bar, 2014 Thomson Reuters New Zealand Ltd, p26.

Equality means business: UN urges private sector to help close gender gap; see http://www.un.org/apps/news/story.asp?NewsID=50293#.VQ4fCnnGN95 9 Get up and speak”, presented in in Auckland in 2013 and Get up and speak up”, presented in Wellington in March 2014.

10 Glazebrook, S “It is just a matter of time and other myths - the gender gap”, p20, NZBA/WWLA seminar, August 2013 7 8

21

Electronic Trial Bundles - Should You Be More Interested?

By Angel Goodwin and Sarah Yallop* With the Court of Appeal trialling an electronic case on appeal protocol and more High Court trials proposing electronic bundles and electronic court rooms, you may be starting to ask yourself “is it worth considering the electronic bundle”? You might find that they are a resource worth engaging with rather than just an obligation to be met.

Cost and practical considerations Those of us in the business of making bundles have long since abandoned a paper based compilation process regardless of whether a case has been nominated for “electronic bundles”. The speed and flexibility offered by the electronic process have significantly reduced the time and cost of bundle preparation. Producing large bundle sets is a significant and hard to swallow cost for litigants, so techniques for reducing cost and increasing accuracy should be welcomed.

As with discovery, the challenge is to develop an approach and to use software tools that harness the benefits of documents provided in electronic form as a means to combat the exponential increase in document volume arising out of the electronic discovery process.

The production of trial bundles feeds seamlessly on from the e-discovery process. This is where the rewards of the expense and effort of having scanned and coded documents into uniform electronic format under the Court’s exchange protocols can be reaped. Having the documents in an ordered electronic format enables them to be easily collated, ordered and indexed using software tools , without the need for a single page to be printed prior to final approval. This is equally true of discoveries housed in specialist discovery software programmes as it is for simple PDF and spreadsheet sets.

Because the commitment to print can be delayed, much can be done to refine and perfect the bundle before committing to paper production. Drafts can be reviewed, additions and deletions can be made and duplicates

22

easily identified. Importantly, the bundle remains agile to the end, so the compilation process can begin early and remain a “work in progress” until the day of despatch.

Indeed, the whole bundle can be restructured if a better scheme is contemplated.

Printing is the final step in the process, prior to binding.

The printed product is significantly more accurate than photocopied one – where the production is at the mercy of document feeders and paper jams and the attention of support staff. The cost of printing only the final bundle is significantly less than the cost of pagination, copying, checking and collating sets of paper bundles as it produces little or no waste.

Functionality PDF navigation tools such as the “go to page” function, insertion of bookmarks to replicate tabs (something often abandoned in larger bundle sets) and simple Optical Character Recognition processing create an ease of use for Counsel and better returns on time spent locating relevant documents and passages. With much of the text of a bundle able to be searched (apart from handwritten notes in script) a bundle is transformed from a reference object to a resource, helpful during submission writing and at trial.

The flexibility of electronic bundle production takes the unnecessary drama out of trial preparation. And not just for those preparing the bundle. Using the draft electronic bundle while drafting submissions, Counsel can simply insert document ID numbers in their submissions and these can be converted to ABD references instantly when the final bundle is approved. There is no need to allow for production time to insert page numbers and indexing with bookmarks is a breeze. Once finalised hyperlinks can be inserted in the index and between documents - linking brief to evidence for example - to speed the navigation process even further.

The traditional bottleneck of writing submissions and simultaneously producing the bundle becomes a more natural process. As counsel you have a valuable search tool available to you and as documents are added to the bundle, or reference and cross references made in submission, the electronic bundle simply re-adjusts.

When the submissions are ready, so is the bundle.

Sharing bundles Having created the electronic bundle at less cost than the traditional paper set, and made the most of its enhanced functionality in preparing for trial, you also have the added advantage of being able to share all or part of the bundle with colleagues, clients or witnesses at zero cost and without trucking boxes of files around town. It is a very straightforward exercise to extract sets of documents relevant to different individuals and to share these - with or without your annotation.

Similarly, electronic bundles can be transported easily where you go either on a laptop, USB or in the cloud giving you more flexibility for when and where you work.

At trial The efficiencies of the electronic courtroom are a separate topic for another day. We are still some time away from anything like a paperless environment, but a shift to capitalising on the economy and capability advantages of using electronic bundles alongside the comfort and familiarity of a hard copy set is a move that should be considered by Counsel, independently of the Court’s progress. The transition towards more use of electronic media is sure to happen over time and those who embrace the benefits earlier will be pleased they did. *Angela and Sarah are directors of Goodwin Yallop, a litigation support company offering a full range of para-legal services including document management, discovery and trial bundle preparation. Goodwin Yallop can be contacted via email at sarah@goodwinyallop.co.nz and angela@goodwinyallop.co.nz or via the website www.goodwinyallop.co.nz.

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23

The First CPD Year Has Ended – Don’t Panic!

By Jacqui Thompson* We have had a few queries about how lawyers tell the Law Society that they have completed their compulsory professional development (CPD) requirements. Some people have also asked what they need to do to get ready for the 2015-2016 CPD year which began on 1 April. We thought we would share these questions and offer some answers.

Q – How do I let the Law Society know that I have completed my CPD? A – All you need to do is complete a declaration online (see the side panel for instructions). You do not need to send anything to the Law- Society.

Q – Do I need proof that I have completed the 10 hours and who do I send this to?

A – You do need to be able to verify completion but you will only need to provide the verification if you are audited.

Q – Does it matter if I have more than 10 CPD hours in one CPD year?

A – CPD is not a limit on how much training and learning you do. It is a minimum. You should do as much training as you need. If you end up doing 20 hours of CPD training in a year, then 10 hours will meet your current year’s compliance and five hours can go through to the following year’s compliance. But this doesn’t mean that the last five hours were a waste or that you should stop attending events that are relevant to you learning needs, just because you have fulfilled your 10 hour minimum.

Q – Okay but money is limited. I have finished this year’s requirement and carried over five hours. There is a seminar I want to go to which is this year. I can’t justify it as I will still have to pay for another five hours to qualify for the coming year’s CPD. What do I do?

A – If you want to go to the seminar, go to it. This is a separate issue from CPD. However you might want to check if the seminar is being recorded. If it is, find out if the supplier has made it a CPD activity (there must be interactivity included, such as a quiz or a way to ask questions of the presenters). You could then do the recorded seminar (or webinar recording) after 1 April and it will qualify towards your remaining time for the next CPD year.

Alternatively, get a group together after 1 April and pay the group rate for the recording. If you watch it together

24

and discuss it as a group (thus ensuring you engage with the information), it will qualify as a CPD activity and you can verify each other. Whatever activity you choose, it needs to meet your identified learning needs.

Q – Couldn’t I just pay the single price instead of the group price and still share it?

A – You need to be aware as to whether this would be an infringement of copyright laws so check with the provider. Making a saving on the group price could be a costly exercise in the long run, both professionally and financially.

Q – Is a CPD Plan really necessary?

A – Yes. The plan is part of the requirements for your CPD Plan and Record (CPDPR). It is not an annoying administrative issue that you can catch up with later. You need to do this at the start of the year to maximise the benefit of the learning you do. The CPDPR allows you to reflect on your strengths and weaknesses, assess what you have to do to meet the necessary standards or in what areas you want to excel, and then take steps to ensure that you do this.

Q – Is there an easy way to do my plan and keep my record?

A – Yes. The CPDPR takes time but it doesn’t have to be hard. The Law Society has provided an excellent set of resources to help you put together the plan. There is a step by step process that is simple to follow. This is available at www.lawsociety.org.nz/cpd. There are also good templates available for you to create a CPDPR. The basic steps to the CPDPR are: A) Planning what you need, how to meet those needs and what outcome you want to achieve; B) Act to meet the needs by engaging in one or more CPD activities; C) Reflect on the completed activities, how they helped you and whether they met your learning outcomes.

There are various methods of keeping your CPD Plan and Record up-to-date such as online record keeping which you can use, including: 1.

2.

The NZBA has a module for members to record CPD activities that they have undertaken, including non-NZBA events; Storkk.co.nz is an independent service which allows a practitioner to see what events are offered by various suppliers, and to keep a record of these activities. This service is free to NZBA members;

3.

4.

The Law Society’s continuing legal education arm NZLS CLE Limited has its own online CPDPR system; ADLS Inc also has its own online CPDPR module.

If you are not comfortable with online, then use the Law Society’s templates available on the website. Although the rules do not specify any particular format, the templates provide guidance and reassurance you are on the right track.

Q - What if my learning needs change during the year because (for example) I move into a different area of practice?

A – Your CPDPR is not static. It changes as your needs change. You should draft it at the start of the year to look forward to the whole year. But you also should revisit it regularly during the year. You may, for example, be told by a colleague that you need to improve in an area in which you had not realised that you were deficient. You can alter your record during the year to reflect that need.

Q – Does this mean that at the end of each year I have to be proficient in the areas I have identified in the CPDPR? A – No. Take advocacy skills as an example. This might be one of your core learning needs. These skills improve over time with practice and with further training. This need is likely to appear in your CPDPR regularly. But you may want to break it down into more specific components, such as cross-examination skills, or structuring your openings and closings. If you get to the end of the year and you have shown no improvement, too little improvement or it is an ongoing need because of its nature, you can carry it over into the next year. Some needs (knowledge of technology, subject updating etc) will appear regularly in your plan.

Of course there is a caveat on this. You have to meet the minimum professional standards. The Lawyers and Conveyancers Act 2006 focusses heavily on consumer protection. If you are not meeting the necessary standards, you need to think seriously about whether you are in a position to provide regulated services unsupervised. Seek out a mentor and get advice, to avoid disadvantaging your clients and as a worst case scenario engaging the complaints/disciplinary process.

How to Make Your Declaration This information is from the Law Society’s website: 1. Log in to https://www.nzls.org.nz/RegistrationDB/ login with your lawyer ID (six digit number that is on your practising certificate) and password.

2. Click on the item “CPD” on the left hand list of menu items.

3. Tick the box corresponding to the CPD year for which you wish to make a declaration.

4. Click on “Save” 5. You’re done.

6. Under exceptional circumstances, permission to defer the CPD requirements may be granted. To apply, download the form Application for a deferment of CPD requirements to a subsequent practice year for submission. * Jacqui is the NZBA Training Director. If you have any questions or would like to suggest potential training events, please contact her on Jacqui.thompson@nzbar.org.nz

New Members We welcome the following new members to the NZBA: Sandi Bailey

AUCKLAND

Stephanie Marsden

CHRISTCHURCH

WELLINGTON

Paul Michalik

WELLINGTON

James Burt

AUCKLAND

Bryony Millar

BLENHEIM

Thomas Cleary

AUCKLAND

Alice Osman

WELLINGTON

PALMERSTON NORTH

Louise Reed

AUCKLAND

AUCKLAND

Mark Russell

CHRISTCHURCH

Dagny Baltakmens

Stephen Ebert Christine Gordon QC Julian Ironside

NELSON

Alice Krzanich

AUCKLAND

Rosemary Wallis

AUCKLAND

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Insurance Update from Marsh February 2015 Marsh is one of the NZBA’s member benefit partners. They have agreed to provide a quarterly update of insurance matters which might be of interest to our members. If you have any questions please contact Mark Rogers, Risk Advisor, at Mark.Rogers@marsh.com.

The Latest Bridgecorp Decision – Insurance implications Bridgecorp v Certain Lloyd’s Underwriters [2014] NZCA 571 On 27 November 2014, the New Zealand Court of Appeal issued a decision in the Bridgecorp v Lloyd’s case, which has clarified the law in relation to overseas insurers under section 9 of the Law Reform Act 1936.

The proceedings were brought in the Court of Appeal by the same receivers that had already successfully asserted a charge over the D&O policy covering Bridgecorp’s former directors, which led to the Steigrad/Bridgecorp litigation.1 The insurer providing that D&O policy was resident in New Zealand and Australia.

In Bridgecorp v Lloyd’s, the receivers again sought a charge under section 9 of the Law Reform Act 1936 but this time against the proceeds of the professional indemnity insurance policy held by the defunct company’s insurance broker. In this case, however, the broker’s insurers were offshore underwriters (based at Lloyd’s of London) rather than from New Zealand.

The Lloyd’s underwriters obtained a declaration, upheld by the Court of Appeal, that the brokers’ liability policy could not be charged by section 9 because the insurer did not have a place of business in New Zealand, and therefore that the debt payable under the policy was due in England.

We understand that the time limit for attempting a further appeal to the Supreme Court has now expired, and that Bridgecorp’s receivers did not make such an attempt.

Accordingly, this particular set of proceedings is at an end.

So what does it mean for your liability insurance programme?

Although there is always a chance of another test case that might alter the current picture, the Court of Appeal’s decision has created more clarity than previously existed. It means that: • Multi-national insureds headquartered outside New

Zealand with off-shore insurance that made contingency insurance arrangements for their New Zealand operations in case their global policies placed offshore were charged by section 9, can now relax a little and reconsider whether those arrangements are still warranted.

• New Zealand insureds with off-shore insurance which segregated defence costs limits after the original Steigrad/ Bridgecorp decision of September 2011 (and its appeals) may now consider returning to combined limits.

Please note, however, that where an off-shore insurer has an office or agent (which in some cases may include a broker or other intermediary with some delegated authority from the insurer) in New Zealand, there is a still a chance that the insurance debt could be payable in New Zealand. If that is the case it would mean that the insurance policy may still be vulnerable to a section 9 charge, and accordingly, for the moment ring-fencing defence costs in such cases may remain prudent.

The new decision does not affect the need to ring-fence defence costs’ cover when using an insurer that is resident in New Zealand. Insureds will, however, have to add consideration of its effects to their analysis of the advantages vs disadvantages when considering local vs offshore market offerings.

When using Australian insurers caution is recommended as the position there remains uncertain2; particularly as a number of Australian insurers have offices and branches in New Zealand. On that basis where an Australian insurer is involved, ring-fenced defence costs and/or maintaining higher limits appears prudent for the moment.

IMPORTANT Irrespective of where you ultimately choose to insure, we recommend regular review of your limits of liability, programme structure (including ring-fenced defence costs) and choice of insurer with your broker. If you need assistance to determine what are appropriate assessment criteria for your particular needs please discuss with your Marsh client executive.

The earlier Steigrad/ Bridgecorp litigation went to Supreme Court - and the first instance judgment was reversed by the Court of Appeal in between. The decisions resulted in consternation among those associated with buying, arranging, providing or advising on liability insurance and ultimately resulted in the insurance market offering higher limits of liability and/or ring-fenced defence costs solutions in many liability insurance programmes. See Steigrad v BFSL 2007 Ltd [2011] NZHC 1037; Steigrad v BFSL 2007 Ltd [2012] NZCA 604; BFSL 2007 Ltd v Steigrad [2013] NZSC156; [2014] 1 NZLR 304.

1

2 Australia has legislation in several states (NSW, NT and ACT) that is similar to s9 of New Zealand’s Law Reform Act 1936 but the position regarding its application is less clear. The NSW Court of Appeal in the decision of Chubb Insurance Company of Australia Ltd v Moore [2013] NSWCA 212 (‘Chubb v Moore’ or the Great Southern Proceedings) suggested that the charge did not extend to insurance moneys payable in respect of defence costs, that are paid by the insurers in accordance with the advance payment of defence costs provision in an insurance policy before judgment was entered or settlement is agreed in respect of the claim for damages or compensation. But Chubb v Moore may not be fully determinative of the issue. At the time of writing a special leave application to the High Court of Australia has been delayed because of settlement discussions in the proceedings which underlie Chubb v Moore. If they are settled it is highly unlikely that the High Court of Australia will hear the appeal of Chubb v Moore. As we understand it the case has been relisted for mid-June 2015 in case settlement is not reached.

26

Petrol Head’s Corner: The Range Rover Evoque and the BMX X5

By David O’Neill In spite of rumours that the BBC is looking for a new presenter for some random little car programme, David O’Neill has wisely chosen to stay with At the Bar. This issue, it is the battle of the SUVs. He tests the British symbol of the landed gentry against the might of German precision engineering.

I got the call from Madam Editor to provide an article for the upcoming “At the Bar”. Those of you who read this column know that I only go racing twice a year, so not being able to make up any racing stories, I thought I’d opt for an article on a car that I have recently driven.

These days the bulk of SUVs never leave the road and are invariably driven up and down urban streets, picking up children from school and what have you. However, that hasn’t stopped the SUV makers ensuring that if these vehicles do leave the road, they’d be able to cope with it.

The Range Rover Such is the case with the Range Rover Evoque. It has all sorts of electronic wizardry for going down hills, up hills, going into mud, going over rough terrain, rocks etc etc. – I think you get the picture.

I hasten to add that I didn’t try any of these controls but did run through the programming which was basically very simple to use.

There are lots of pictures on the control panel to ensure you don’t get a handbook 3 feet thick in 45 different languages.

roof it looked the part. It car could seat five quite comfortably, however, I wouldn’t want to put 3 oversized teenagers in the back seat as they would be pretty cramped and then they’d start an argument. The car is well appointed with very comfortable leather seats, back and front. However, the boot is tiny and the only way you could get a set of golf clubs in it would be to turf out the teenagers (now there’s a thought) and fold the back seats down.

The rear window is about the same size as a matchbox and backing would be difficult but for the backing camera (which seems to be obligatory these days). All the mod cons were there; air con, leather seats, radio, DVD and MP3 player, navigation and remote phone controls. Even though the rear window was very small, it is more than made up for by the oversized TV screen, which shows you where you are backing and ensures you avoid expensive children’s toys, not to mention (more importantly) the children themselves.

This car was powered by a Rover 2.2 diesel. It’s turbo charged but is no fire breathing dragon. The vehicle makes the usual “clankity-clank” noises that you expect of a diesel. Range Rover haven’t quite got the same refined noise for their diesels that Audi has, but I’m sure that with the price tag for these cars, this will be forthcoming shortly.

It’s no fire breathing monster.

It gets up and goes OK, but I wouldn’t want to chance my arm in a drag race and bet the farm on it.

By the same token, it has sufficient “stonk” and tons of torque that you would expect out of any diesel once it gets onto the turbo. The turbo kicks in around about 2,000 rpm which gives it a bit more get up and go. We belted around the countryside with 5 of us in the car (including the m-in-law) quite comfortably.

To my eye the car was a smart looking small wagon. The way the roof slopes downwards towards the rear of the car gives it a sporty look and with the oversized wheel arches it looks like it really should have a V8 monster under the bonnet, rather than a little wee diesel four cylinder motor.

Sort of think “Tomb raider” styling on a smaller scale and without Angelina Jolie.

These cars are not cheap. This version was about $85,000, which when ranged against its competitors is probably the most expensive of the range between the Audi Q3 and the smaller Mercedes SUV. The Evoque is not a direct competitor with the Audi Q5. It is probably more likely a competitor with the Audi Q3 from a size point of view. However, the price of it does tend to put it up into the next bracket.

This car came in smart dark silver (my description, not the salesman’s) and with the flared wheel arches and sloping

In summary, it’s a very tidy, good looking car with a small motor and an even smaller boot. It will take 5 people

27

reasonably comfortably on a short trip, but if you wanted to go a long distance, then four would be the most that I would put in it. However, don’t expect to pack the house into the back of the vehicle because it’s simply just not there.

If you have a spare $85,000 (and I am talking about the base model here), then by all means go out and get this car, but you really have to be a Range Rover fan to go and purchase one when you consider what is on offer as a direct comparison.

It’s luxurious inside. There is no doubt about the fact it has the Range Rover finish. However, there were some funny touches. For example, in the engine bay there was exposed welds and things were not quite as you would expect of a vehicle that was going to cost you a bomb.

The base model (known as the “Pure”) is $73,000 and from there you can go absolutely mad. I don’t know where they get their model names from. I mean – seriously – Range Rover Evoque… Pure! Try saying that after a few tipples at the Polo……….. The TD4 is $73,000, SD4 $78,000 (both diesels) and Si4 $78,000. The TD4 has significantly less power than the SD4.

However, once you add in things like bigger wheels, grained leather seats, heated seats, Xenon headlights, better paint, flash glass and other nice bits, then you are looking at adding at least $10,000 to the price tag. This is just for the base model, because you then go to the “Pure Tech” (here we go again) which is another $10,000 on top of the base price and then there is the top of the range Dynamic (this is getting silly) which, for the TD4 starts at $89,000 with all the bits and pieces you can add on so you are talking well over $100,000 by the time you have optioned up the vehicle of choice.

I disregarded the Si4 because it is a petrol driven wagon and I suspect the way the world is going these days, petrol driven SUVs are going to go out of fashion very shortly.

BMW X5 If you had asked me 25 years ago whether I would actively choose an SUV over a car, I’d have laughed and the answer always would have been no. That was because SUVs sounded like John Deere tractors, rode like tractors, cornered like tractors and were by and large uncomfortable. Sure – they had economy, but they smelt, were noisy and uncomfortable. Not so these days.

I was given a BMW X5 30d for the weekend. It’s a large vehicle, weighs just over 2 tonnes, almost 5m long and can pull a boat of 3.5 tonnes (with a braked trailer). It is no tractor …

28

BMW have 4 models of the X5 available in New Zealand and all are diesel. There are:• X5 4 cylinder 2 litre version (not for me …)

• X5 30d • X5 40d • X5 M50d All 4 are diesel but the last three are all 3 litre V6 and the only difference between them is, in ascending numbers, an extra turbo bolted on. The X30d has 1 turbo, the X40d has 2 turbos and the M50d has 3 turbos. The single turbo version was really surprising with the amount of power, torque and driveability. I can only begin to imagine what the twin turbo and triple turbo version are like. I suspect the triple turbo version is a fire breathing monster. By the same token, its price tag is $45,000 more than the one I was driving (mine was the $130,500 base model).

For those technically minded people, the car I drove put out 190kw and 560nm. The triple turbo version puts out 280kw and 740nm. To put it in simpler terms, the car I drove could probably happily pull a big boat without any effort. The triple turbo version would probably rip the trailer apart as it took off.

All cars come with an 8 speed automatic transmission.

It rowed through the gears very quickly and because of the torque band being what it is, the car accelerated very quickly and stayed within the power range of the turbo so there isn’t much need to drop below the rev limit where the turbos aren’t.

The car I drove had all sorts of flash bits and pieces, most of which I didn’t get to use. It would put a little shimmy into the steering wheel if you went over your designated spot on the road, ie crossing the centre line. It had a power tail gate (which was really useful). It had the “I drive” system which was basically a dial up for everything you wanted to know in the car.

The one thing I found really useful and a brilliant feature, and I cannot understand why other cars don’t yet have it, was the “heads up display” (apparently found on Fighter jets). For those of you who don’t know – this is where the speed and route (and anything else you wanted displayed on the windscreen) is projected onto the windscreen just below eye level so you don’t need to drop your eyes down to the instrument panel to see what’s happening, but rather see it directly in front of you by just a brief eye movement. It means you don’t take your eye off the road. It was very clear. Even at night it wasn’t distracting. It’s a bit of a problem when you put sunglasses on because the polarisation of the lens tends to make the reflected numbers on the windscreen disappear.

As you can see from the photograph, the car was a pearly white with glossy black wheels. It didn’t look so flash after I’d been through a few sets of road works though. This of course is one of the ever abiding niggles of those people who own white cars. You have to clean them every 5 minutes to keep them looking nice.

The car sales people ran me through all of the functions in the car. I managed to take in about 3 of them and after that lost complete touch with what was going on. I suspect you would need to drive the car for a little while to work out of the things the car could do.

The car went over to the beach and back on the weekend.

The Kopu/Hikuai Road is a good road to test a vehicle out on. Not only does it have corners, but also some good straights so you get to use the handling, suspension, steering and power on the journey. These SUVs are really just a car sitting higher than an ordinary road car. They handle like cars, corner like cars and accelerate like cars. In most instances, they probably outperform most cars, all the while returning a miserly 6 or 7 litres/100km.

I know some of you will go “Bah humbug” and say that you still have to pay road user charges, but if you work out road user charges over a period of time, coupled with the economy of diesel, then it makes no sense to buy a petrol version of one of these cars. This has all the power, torque and economy you would want. Put together, it is a very good package.

Personally I didn’t like the car’s looks that much. I thought it a bit square and slab sided for my taste. However, as you would appreciate, beauty is in the eye of the beholder.

There are those who love the look and those who don’t.

Unfortunately, I’m in the latter camp. By the same token, BMW has been, in my view, polarising its buyers for several years now. It all started when Chris Bangle took over designing for BMW and bought out, what were, in my view, about the ugliest BMW’s ever seen. Again, there was no middle ground with the design. You either loved it or hated it. Bangle has gone now and BMW is moving back towards a more stylish and more svelte car, but for me it hasn’t quite got it - yet.

The car was very comfortable to drive. There is a ton of room in the back seat and junior petrol head was able to sit back and relax and enjoy the amount of leg room available.

The nice touch - there was no transmission tunnel in the middle so that a number 3 passenger in the back seat wouldn’t have to sit there with feet either side of the hump.

The seats were a little bit uncomfortable, with passengers moving around from side to side (particularly through the hills). It didn’t worry me because I held onto the steering wheel, but Mrs Petrolhead and junior petrol head did tend to be knocked around the cabin a little bit and commented on it. I understand you can get sports seats and “comfort”

seats which would hold you in tighter. However, these, are of course optional extras and cost you more.

The list of optional equipment is fairly long and, I might add, expensive. By the same token, that goes for just about all of the Euro type cars that are about these days. The optional extras are extraordinary, but by the same token, expensive. For example, if you wanted to entertain juniors 1 and 2 in the back seat with their own video screens/consoles etc, all hooked up to the vehicle’s entertainment functions, you can shell out $4,000 to BMW to purchase 2 screens inserted into the back of the front seats so that the “little darlings” wouldn’t get too fractious. Personally, I found the $375 DVD player which hung off the headrest coupled with the odd threat just as effective.

My car had the Harman/Kardon surround sound system which was exceptional. The tone of the music played through the system was very good and well worth the extra expense of $1,500. If you really wanted to go the whole hog, you could order the Bang & Olufsen surround system for a mere snip - $9,900!

I think you get a miniaturised symphony orchestra playing in the back seat at that price!

All in all, I think the car was pretty good. It went like a rocket and sounded like one too. It was comfortable. The screen which displays all the functions in the car does not tuck away which is probably not such a good thing. Sometimes you just don’t need to have it sitting up there in front of you displaying everything all the time. The heads up display was fantastic and I think should be mandatory for all new cars. It’s a real bonus, particularly if you are driving at night or in bad weather and you need to keep your wits about you.

The economy looked pretty good. Going over the hill is usually a good test of how economical a vehicle is and on this car we got below 10 litres/100km. It held the road well, went round corners well and soaked up the bumps well.

All in all, if you’ve got a spare $130,000 plus some for the extra bits and pieces, then go buy a BMW X5 3 litre 30d – you’d still have to like the looks! If you really want to go out and impress everybody around you, shell out another $45,000 and get the triple turbo monster. BMW will love you, I am sure, and so will the guy next door who needs his boat towed down to the jetty for launching. You’ll be able to do it at 160kph.

David was provided with the Range Rover Evoque by Duncan & Ebbett, Hamilton. For more information please contact: Craig Duncan on 07 838 1211 The BMW X5 was kindly provided by Coombes Johnston BMW, Hamilton. For more information please contact: Nick Davies at nick.davies@cjbmw.co.nz or phone 07 846 8888. * NZBA Council member and Hamilton barrister, David O’Neill is a regular on the road racing circuit. He is nothing like a presenter on Top Gear. Nothing. We never have to cut anything out of his articles. Really…

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Finding the Wine Bargain?

By Michael Jemison, Macvine International

The range of wines now available has never been greater from a massive 700 plus New Zealand registered wineries to many thousand more from around the planet that want a share of this tiny market.

With New Zealand’s free market economy and the strong dollar, the wine market is hot for bargains, but also be aware some products are cheap for a reason. So how do you find the good wine at the great bargain price and know there is a fair chance that it will not only be drinkable but also offer exceptional value for money?

Here are some simple rules that I have followed over the years with some mishaps but overall the learning experience has been great and also the small number of disasters minimal.

The first thing is try plenty of different wines as you might be surprised what you might like.

Partake in wine tastings that offer you a range of wines to try at a minimal price because no one can tell you what you like as taste is personal.

Knowing what you like is a big start when it comes to wine. Basically what varieties you like to drink, example Chardonnay or Sauvignon Blanc in whites or in reds do you prefer Pinot Noir or Syrah or Shiraz as the Aussies call it or do you prefer Bordeaux blends? Or is it simpler in that you like fruity whites or dry mellow reds? Based on that, the following might be helpful in each for selecting a value-for-money wine.

Sauvignon Blanc • Marlborough – Known for gooseberry Sauvignon Blanc and fresh acidity • Martinborough – Softer acid and some would say more texture and tropical

So why are some wines $23 & some $12? They could be cheaper because the producer has cash flow problems and needs to sell stock or if more expensive, it may be because the brand is established and has a following with demand exceeding supply - hence lessor known brands are cheaper and often offer better value. So the moral here, is to try something new and if in doubt something with a medal sticker will at least say quality should be good.

Pinot Noir: Choice is simple - do I like fruitier Central Otago styles, the savoury notes and dark fruit of Marlborough or the complex earth tones and fine tannins of Martinborough Pinot Noir? The less expensive wines are often lighter, which may mean more appealing when young. Learn vintages and in great vintages, often the 2nd wines are also extremely good and are super value for money. But it is worthwhile to try new producers and remember, sometimes you do get what you pay for and if it exceeds the expectations, buy a case or 2, but always look for a new experience.

Final tip for red wines worth trying where quality exceeds price:

• Look no further than Spanish reds that offer great value from $14 to $100+ per bottle. Better known regions are Rioja for Tempranillo, Campo De Borja for Key things to make finding a wine bargain easier: Garnacha and Yecla for Monastell.

1. Seek advice from those that you know love wine and • Seek out those that are 2 to 5 years old if you want get tips from them or a wine adviser. This is a little youthful fruit and at a price point between $15 and $25, hard to find in a supermarket but there are still a few may give you outstanding red wine that is a bargain. good independent retailers who enjoy wine and are • Other terms relevant to quality refer to aging in barrel happy to give advice. & bottle such as Crianza, Reserva and Gran Reserva – 2. If there are no wine adviser medal stickers, these if these terms are on the label, the wines will most people can help you find wines that others think lightly be more expensive but should be better quality, are of a good quality and this certainly assists the but check where in Spain it comes from and what consumer to make choices between wines they do grape varieties were used. Seek out a Spanish red not know. today and see if you can find the real wine bargain.

3. Try a selection and buy two wines similar in style and * Michael Jemison is the managing director of Macvine try them side by side. Drink over a couple of days International, an importer and distributor of top quality, and see which you prefer. A choice of one is never a specialist wine from New Zealand and around the world choice.

Macvine International offers NZBA members opportunities to 4. Regions which have a style in general means that knowing a wine from a specific region may be a safer buy rare and limited edition wines – for more information visit www.macvine.co.nz or contact Lyn Parent at lyn@macvine. bet: see the following examples of wines that fit this: co.nz or on (09) 579 7451.

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Events

Auckland Christmas Drinks Function, 11 December 2014 Our Christmas function, which was was held at the Northern Club, was a great opportunity for all to launch the festive season.

Brian Rooney and Maria Cole

Dr Gerard Curry and Paul Mabey QC

John Brown and John Mather

Bob Hollyman, Steve Keall, Patrick McGrath and Stephen Mills QC

Philip Skelton QC, Paul Collins, John Land and Suzanne Robertson

Robert Fisher QC and Sonja Clapham

Justice Hinton’s Swearing In, Auckland, 30 January 2015 The following photos were provided with the kind permission of the New Zealand Law Society, and copyright is reserved. Photo credit: Claudia Chilcott.

Matt Casey QC and Michael Fisher

Jane Hunter and Lady Deborah Chambers QC

Pip Muir, Justice Anne Hinton and Kate Davenport QC

Dame Judith Potter, Chris Nolan, Justice Anne Hinton and Robyn Reynolds

Judge Ian McHardy, Maria Cole, Mark Henagan and Glenda Macdonald

Stephanie Ambler, Amanda Donovan and Jane Hunter

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2014-2015 COUNCILCOUNCIL CONTACT DETAILS 2013-2014 CONTACT DETAILS PAUL MABEY QC - President Ph: +64 7 577 1091 Fax: +64 7 577 1092 pgmabey@xtra.co.nz PO Box 13199, Tauranga 3141 TIM CASTLE – Vice President Ph: +64 4 471 0523 Fax: +64 4 471 0672 tim.castle@xtra.co.nz P O Box 10048, Wellington PETER DAVEY Ph: +64 9 309 0475; Fax: +64 9 354 3850 peter@davey.co.nz PO Box 1811, Auckland 1140 JOHN DIXON- Associate Member representative Ph: +64 9 336 7535; Fax: +64 9 336 7629 john.dixon@meredithconnell.co.nz Meredith Connell, PO Box 2213, Shortland St, Auckland 1140 JONATHAN EATON QC Ph: +64 3 372 3466; Fax: +64 3 372 3466 j.eaton@bridgesidechambers.co.nz PO Box 13868, Christchurch 8141 CLIVE ELLIOTT QC - Vice President Ph: +64 9 309 1769; Fax: +64 9 366 1599 elliott@shortlandchambers.co.nz PO Box 4338, Shortland Street, Auckland 1140 SIMON FOOTE Ph: +64 9 307 8784 swbf@simonfoote.co.nz PO Box 1121, Shortland Street, Auckland 1140 LISA HANSEN Ph: +64 4 914 1052 l.hansen@barristerscomm.com PO Box 8045, Wellington 6143 DENNIS JENKIN Ph: +64 9 309 1769 djenkin@shortlandchambers.co.nz PO Box 4338, Shortland Street, Auckland 1140 HAMISH MCQUEEN – Junior Barristers’ Representative Ph: +64 9 309 1769 hmcqueen@shortlandchambers.co.nz PO Box 4338, Shortland Street, Auckland 1140 DAVID O’NEILL - Vice President Ph: +64 7 839 1745 Fax: +64 7 838 9319 david.oneill@nzbarrister.com PO Box 815, Hamilton 3240 JUSTIN SMITH QC Ph: +64 4 917 1080; Fax: + 64 4 472 9029 justin.smith@stoutstreet.co.nz PO Box 5722, Wellington 6145 MATTHEW SMITH Ph: +64 9 460 0749 matthew.smith@chambers.co.nz PO Box 1530, Wellington 6140 ALEXANDRA SINCLAIR - Junior Barristers’ Representative Ph: +64 9 309 1769 asinclair@shortlandchambers.co.nz PO Box 4338, Shortland Street, Auckland 1140 STEPHANIE THOMPSON - Junior Barristers’ Representative Ph: +64 9 367 6895 stephanie@smthompson.co.nz PO Box 405, Shortland Street, AUCKLAND 1140 DEAN TOBIN Ph: +64 3 477 8781 Fax: +64 3 477 8382 dean.tobin@princeschambers.net P O Box 1424, Dunedin MALCOLM WALLACE – Vice President/Treasurer Ph: +64 3 379 6976 Fax: +64 3 366 6291 malcolmwallace@canterburychambers.co.nz P O Box 9344, Christchurch 8141

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