At the Bar October 2013

At The Bar October 2013

Financial Markets Experts and building enclosure disputes Professional obligation to understand technology Litigation Funding Silks’ ceremonies

From the Executive Director INSIDE THIS ISSUE Pg 2 - From the Executive Director Pg 4 - Financial Markets Pg 7 - Experts and Building Enclosure Disputes Pg 9 - Professional Obligation to Understand Technology Pg 11 - Cybersecurity Pg 12 - Litigation Funding Pg 14 - Lawspot – Lawyers Giving Back Pg 16 - Annual Conference Pg 18 - Fraud Prevention Pg 19 - Continuing Professional Development Pg 20 - Litigation Skills Course Pg 21 - New Members Pg 22 - Mooting Competition Pg 23 - Life Outside the Bar – BMW driver’s Course Pg 24 - Life Outside the Bar – The Making of Travis Pg 27 - Life Outside the Bar – Petrol Heads’ Corner Pg 28 - Events – Silks’ Ceremonies Pg 30 - Events – Junior Barristers Pg 31 - Events – Get Up and Speak Seminar

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

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Judicial Appointments Our congratulations to Judge Grant Powell, Judge Murray Hunt and Judge Christina Cook on their appointments to the District Court.

Judge Hunt and Judge Cook will sit on the Family Court Bench.

2013-2014 President Elect and Council Given that our current President Stephen Mills QC will be retiring from his role at the end of September 2014, nominations for the President Elect position were called for. Paul Mabey QC, who is based in Tauranga, became the President Elect as from 1 October 2013 and his term as President will commence on 1 October 2014.

because of the increased use of smart phone, tablet, laptop and cloud based computing.

The policy with Group Scheme underwriters AIG, is designed to cover risks of losing or having data stolen from any of your computer, tablet or smartphone equipment or where for other reasons, such as hacking or virus attacks, equipment is unable to be used to access vital data. Further details are available later in this newsletter.

Commonwealth Heads of Government Meeting (CHOGM) The NZBA received a request from the International Bar Association Human Rights Institute (IBAHRI) to support its efforts to uphold the Rule of Law in Sri Lanka following We were required to conduct an the removal from office of Chief election for the 2013-2014 Council Justice Bandaranayake and due to receiving more nominations threats to eviscerate the country’s in Auckland than places on the judiciary as an independent Council. The members of our Council guarantor of constitutional rights. from 1 October 2013 are President Prior to making a decision to Stephen Mills QC, Peter Davey, Clive support the IBAHRI request, Elliott QC, Bruce Gray QC, Simon comment was sought of the Moore QC and Suzanne Robertson Ministry of Foreign Affairs and (Auckland), David O’Neill and Paul Trade (MFAT). As a result of the Mabey QC (Waikato/Bay of Plenty), IBAHRI request and the feedback Tim Castle, Lisa Hansen and Justin from MFAT, a letter was sent to Smith QC (Wellington), Marcus Elliott Hon Murray McCully, expressing and Malcolm Wallace (Canterbury), the NZBA’s concern at the slow Dean Tobin (Dunedin) and our junior progress of post war reconciliation barrister representatives are Desley and the human rights situation in Horton (Auckland) and Matthew Sri Lanka and endorsing the call by the IBAHRI that the New Zealand Smith (Wellington). government reassess its support Dr Gerard Curry of Auckland and for Sri Lanka as the host for the Catherine Bibbey of Christchurch November 2013 CHOGM meeting. have retired from Council. I wish to RECENT EVENTS extend my thanks to them both for their significant contribution to the Annual Conference work of the Association.

Queenstown The Annual Conference was Insurance update very well attended with 114 in Further to my update at the last attendance at our formal Saturday newsletter, our Group Scheme night dinner at Stoneridge Broker, Marsh, has now confirmed Vineyard. Both the conference the detail of the CyberEdge programme and conference Insurance Policy and set of best venue at the Heritage Hotel practice protocols to provide cover were well received. My thanks for cyber-security and associated to the Conference Committee risks, which is gaining relevance members Malcolm Wallace (Chair), to barristers and other lawyers

Lisa Hansen (Deputy Chair), Bruce Gray QC, Suzanne Robertson and Desley Horton and to NZBA Administrator Lisa Mills. Photos from the conference are included later in the newsletter at page 16.

Silks’ Dinners – Christchurch and Auckland As a result of the appointment of 26 new silks, the NZBA has hosted dinners in September in Christchurch and Auckland and will be hosting another dinner in Wellington on 11 October. We have had an excellent turnout at these events. Photos of the events will be included in the December issue of the newsletter.

Juniors’ Function - Auckland NZBA Auckland Junior Barrister Representative Desley Horton, with assistance from Nura Taefi from the NZBA Junior Barrister Committee, hosted an event in July for junior practitioners at Shortland Chambers. Justice Murray Gilbert spoke to the attendees on tips for advocates. Our thanks to the support from Shortland Chambers in hosting this event.

Photos and a summary of the event are included at page 30.

Sentencing Competition - Wellington The NZBA sponsored the annual Sentencing Competition in Wellington in August – the event is organised by the Judges’ Clerks at the Wellington High Court. NZBA Council member Lisa Hansen attended on behalf of the Council to present the prizes to the winner (Aric Shakur) and runner up (Sean Mallett).

Judicial Review Seminar - Wellington In September we hosted the first of what we hope will be on-going joint venture training webinars with Thomson Reuters. Matthew Smith who is one of our Council members and also the author of The New Zealand Judicial Review Handbook published by Thomson Reuters, was joined by Justice Wild and Francis Cooke QC in presenting the seminar which was filmed for later use as a webinar.

Get Up and Speak – Wellington In August, together with the Women in Law Committee of the Wellington Branch of the New Zealand Law Society, we presented a re-run or our successful Auckland seminar “Get Up and Speak Up”. Once again it was a sell-out event. Presenters included Hon Justice Susan Glazebrook and Chief High Court Judge Hon Justice Helen Winkelmann, Karen Clark QC, Janine Bonifant and Andrew Butler of Russell McVeagh. There is a summary of this event on page 31. Our thanks to Russell McVeagh for their support in hosting this event.

UPCOMING EVENTS Obstacles and Opportunities - Christchurch We are hosting, in conjunction with the Christchurch Women’s Legal Association, a seminar at the Rydges Hotel in Christchurch for professional women called Obstacles and Opportunities on Friday 22nd November 2013. We have confirmed speakers including Carmel Fisher, Hon Justice Susan Glazebrook, Mai Chen, Hon. Judith Collins (Minister of Justice), Dr Emily Morrow, Lisa O’Neill, Andrea Thompson and a recorded opening address from the Rt Hon Helen Clark. More details will be available on the NZBA website in October.

Young Lawyers Mooting Competition - Wellington NZBA is working in conjunction with Thorndon Chambers and the Young Lawyers Committee of the New Zealand Law Society to host a mooting competition in September/ October 2013 in Wellington. The mooting competition is designed to give young lawyers the opportunity to develop their skills of written and oral advocacy in a courtroom context.

The NZBA will provide group training to all participants, and mentoring for the semi-finalists and finalists. The finals are being held at the Old High Court in Wellington on 24 October. Monica Hamlyn-Crawshaw and Elizabeth Chan outline the event on page 22.

Criminal Law Update - Auckland Professor Warren Brookbanks will be providing one of his annual updates on criminal law. Mark your diary for Saturday 9th November 1pm – 4.30pm at the Ellen Melville Hall in Auckland. Details and registration are available on our website.

Christmas Drinks We are currently confirming dates for Christmas drinks functions at various venues around the country. We have confirmed the Christchurch function, which will be held at The George Hotel on Friday 1st November and the Auckland function to be held at the Northern Club on Wednesday 11th December so mark your diary! More information regarding Christmas function dates will be advised shortly on our website.

Recent and Current Submissions We have recently been involved with submissions on: • In court media guidelines • Review of electronic technology provisions for courts • Legal Aid provider contracts Members of the Intervention Rule Committee are currently working on the intervention rule submission with the aim of achieving agreement between the NZLS and NZBA prior to the October 2013 NZLS Council meeting when the matter will be voted on.

Melissa Perkin.

ROOM AVAILABLE Vulcan Building Chambers will shortly have a room available to a barrister wishing to share facilities with six other barristers in a professional and supportive environment. The chambers are located on the top two levels of the historic Vulcan Buildings and enjoy a quality contemporary fit-out and sunny outdoor decks with views across the city.

Facilities include: Website, boardroom, library, kitchen, shower, ultra fast broadband, high speed printing and photocopying. The chambers have a dedicated receptionist and a secretarial bay is available if required.

Please email Jennie@vulcanbuilding.co.nz or phone 09 300 1253.

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Effective Disclosure Under the Financial Markets Conduct Act

By Jim McElwain*, the Institute of Finance Professionals NZ Inc. (INFINZ)1 This article provides some insight into the impact of the Financial Markets Conduct Act 2013 (FMCA) and its accompanying regulations from an industry perspective.

“These regulations are part of the most significant reform of financial market regulation in a generation”2.

So said the Minister of Commerce, Craig Foss, on 27 June 2013 when announcing decisions on the regulations needed to bring the Financial Markets Conduct Bill (FMCB) into force.

Jim McElwain

The FMCB passed its third reading on 28 August 2013.

Draft regulations are expected to be released for review in October 2013 and finalised in February 2014, with a transitional period to full implementation of up to 2 years after these become operational on a staged basis from 1 April 2014.

This article focuses on one aspect of the reforms, relating to disclosure – because this arguably is where the greatest change has occurred relative to existing legislation. And, as the Minister states, “disclosure to investors about financial products is a cornerstone of the FMC Bill regime.”

FMC Act purposes and objectives In June 2013, Cabinet papers were released seeking policy decisions for the regulations under the FMCB. www.med. govt.nz/business/business-law/current-business-law-work/ review-of-securities-law. The FMCB’s main purposes were to promote the confident and informed participation by businesses, investors and consumers in New Zealand’s financial markets, and to promote and facilitate the development of fair, efficient, and transparent markets.3 The Cabinet Papers advised that “The FMC Bill seeks to achieve, and explicitly balance, these main purposes by: • Setting out standards of conduct expected of financial

markets participants, based on the requirements in the Fair Trading Act • Removing unnecessary compliance burdens on capital- raising, for example, through new exceptions for small offers • Promoting innovation and new sources of capital, for example, by providing for lower-cost public listed markets and crowd-funding platforms • Decriminalising conduct except where there is

knowledge or recklessness, and instead providing for pecuniary penalties and a range of protective tools such as stop orders, enforceable undertakings and management bans • Ensuring that activities within the regulatory net are properly regulated, for example through improving disclosure, licensing fund managers, and improving governance of managed funds offered to retail investors.”

New disclosure framework The investment statements and prospectuses under the Securities Act 1978 will be replaced for the regulated offer of financial products by a short Product Disclosure Statement (PDS) and all other material information placed on an on-line register (register).

The objective of the reforms is to create more effective disclosure for retail investors. The PDS is envisaged to be a much shorter document than the current investment statements/prospectuses, especially for managed funds such as basic unit trusts and Kiwisaver products. Such products will be subject to high levels of prescription in terms of format and length and the emphasis shifts to ongoing disclosure. A PDS for a more complex Managed Investment Scheme (MIS), equity and debt offerings and derivatives will have less prescription.

The regulations will establish the framework within which Financial Markets Authority (FMA) issues guidance as to their implementation. The FMA’s present guidance on effective disclosure was issued in June 2012. http:// www.fma.govt.nz/media/802192/final_guidance_8_june. pdf. FMA and the Ministry of Business, Innovation and Employment (MBIE) have worked together closely in developing the disclosure regulations.

While this guidance has been developed within the context of the current legislation, the objective for offering

The Institute of Finance Professionals NZ Inc. (INFINZ) is the leading industry body for capital markets professionals in New Zealand. INFINZ has a membership of over 700 individuals drawn from across the capital markets and includes treasury professionals, investment analysts, fund managers, bankers, lawyers and students. One of the objectives of INFINZ is “to promote the proper control and regulation of the New Zealand finance and capital markets” 2 “New Regulations for financial markets”, Minister Craig Foss, 27 June 2013 3 Cabinet Paper 1: Overview, page 2 1

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documents to be “clear, concise and effective” is also a key (legal) requirement under the FMCA. Subsequent to issuing this guidance, FMA has reviewed over 285 offer documents4 . At a presentation to INFINZ members in April 2013, Sue Brown, the then Head of Primary Regulatory Operations5 commented that in terms of presentation and layout, the best offer documents as judged by the FMA featured: • White space • Ease of navigation • Short sentences (no more than 15 to 20 words) • Key information at the front with little or no imagery • Relevant imagery/branding which doesn’t obscure required information • Use of graphs, diagrams, summary information panels • Clear hierarchy of information Split of material information between PDS and register With respect to the new disclosure framework, a key matter for issuers (and their legal advisers!) will be the exercise of judgement around what “material information” should be included in the prescribed content of the PDS which must be issued to all prospective investors. The new definition of “material information” in s 43 FMCA talks about information that “a reasonable person would expect to, or to be likely to, influence persons who commonly invest in financial products in deciding whether or not to acquire the financial products on offer”. The difficulty with this “guidance” is that such information includes all matters, whether they have a significant impact or not. It is a key contributor to the length of existing offering documents, since issuers seek to mitigate their legal exposure by compiling a comprehensive schedule of risks and other information to avoid excluding any potential matter impacting investors’ judgement.

One approach would be to heavily prescribe what information is required to be placed in the PDS. INFINZ has previously expressed concern that this could lead to a “tickin-the box” approach to preparing offering documents, less “ownership” by directors in the process and inadequate information available to investors6. These concerns relate primarily to debt and equity IPOs but the Cabinet papers helpfully suggest less prescription for these issues compared to that applicable to managed funds. Regulators might still, however, wish to place some constraints on these more complex offering documents to enhance their accessibility by retail investors. One option could be to place a limit on the pages (or words) in a PDS, but with discretion able to be exercised by FMA on submission.

An example would be where there has been a complex restructuring of the issuer before or contemporaneous with the issue.

Where strict page or word limits are placed on the PDS, the regulations would need to provide a framework within which the FMA could provide guidance as to what matters are material in an economic sense (and are required to be included in the PDS) and/or how the detailed materials placed on the register (such as complete financial statements)7 can be “safely” flagged and crossreferenced in the PDS. In the absence of a clear definition of materiality, the cross-referencing concept might have the most potential for creation of a short PDS8.

In any proposals worked-up in the NZ context, regard will also have to be had for what might be acceptable to the regulatory authorities in Australia and in the US to ensure that large equity offerings can be marketed to offshore institutions.

Due diligence defence The Cabinet papers stated that directors were to be civilly liable for false or misleading statements in a PDS and register entry, subject to defences of reasonable reliance on information supplied by another person, or the contravention being caused by someone else and the director having taken reasonable precautions and exercised due diligence to avoid the contravention9.

The FMA will issue guidelines under the new Regulations when promulgated, but some indication of their thinking can be gained from their guidance under current legislation. While robust due diligence processes are critical these are, in FMA’s view, only part of the picture.

Directors’ “ownership” of preparation of the offering documents is key, including “asking the hard questions”.

The board of an issuer will therefore likely need to: • Review the establishment of the due diligence process itself; and • Critically review the outputs from the due diligence process, including ensuring that the detailed disclosures are supported and not misleading; and • Consider and test whether the overall documents “are accurate and not misleading as a whole”.

Indeed, the FMA wants directors to consider the disclosure documents holistically (added emphasis) – in their words, not just ticking the boxes through a compliance checklist.

According to the FMA, appropriate steps would include

From 9 July 2012 to 24 April 2013.

Now Head of Strategy, Innovation and Engagement with FMA. 6 http://www.med.govt.nz/business/business-law/current-business-law-work/review-of-securities-law/financial-markets-conduct-regulations-discussion-paper2013-list-of-submissions-and-collated-table 7 For example, within the Z Energy prospectus, the Financial Information section comprised 95 of the 228 pages.

8 In addition to the advent of the Securities Register and cross-referencing to it, officials have recognised that a lot of the length will be automatically dealt with by a combination of (1) getting rid of the potential for a ‘dual offering document’ (i.e. investment statement plus prospectus – particularly prevalent in equity IPOs), (2) reducing the repetition that is a feature of the current prescriptive requirements and (3) avoiding using accounting rules like FRS-42 as a basis for disclosure.

9 Cabinet Paper 2: Disclosure and General Matters, P4.

4 5

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considering whether each disclosure document conveys an adequate and accurate overall impression of the offer and provides a balanced disclosure of the benefits and risks10. The FMA also advises that the disclosure documents should be “consistent with all other information available to directors such as information in board or other management reports.”11

Kiwisaver and other, simpler, managed fund offerings.

These requirements suggest a level of functionality for the on-line register akin to that delivered by the NZX platform.

Delivering a robust and parallel tested IT platform with this level of functionality will be very challenging and it is important that time is allowed for rigorous acceptance testing before the new disclosure regime goes live. The Minister has advised that the on-line register will not golive until 1 December 2014 which responded to industry concerns with respect to the timeframes.

On-going disclosure requirements At present, there are very limited on-going disclosure requirements, after the offering period has ended, for debt and equity issuers outside of the requirements for securities that are listed on registered exchanges.

The objectives of the new disclosure regime under the FMCA is that it be “clear, concise and effective”. This will be addressed by the regulations, the drafts of which will be issued in October.

It has been proposed that there be event-based disclosure for debt, equity and more complex MIS products.

Disclosures with respect to debt securities might include changes to credit ratings and changes to the guarantors of the issuer. For equity securities, disclosure might include the annual report and major transactions. This event-based disclosure would be placed on the on-line register. These fresh requirements raise two matters for such issuers; the processes that need to be put in place to ensure compliance and the need to potentially upgrade their investor relations capability.

Periodic disclosure is to be extended to all managed funds and undertaken including through the on-line register.

There is also the desire to make the register searchable to facilitate comparability among offerings, especially for

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** The INFINZ Conference will be held on 17 October at the Viaduct Events Centre in Auckland with the theme “Getting Capital Ready.” The challenges and opportunities around delivering shorter offering documents will be the focus of a panel session with officials and leading legal and industry participants.

For more details please visit www.infinz.com. * Jim McElwain is the Executive Director of the Institute of Finance Professionals NZ inc. Jim is an economist and experienced corporate finance practitioner.

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FMA Guidance Note: Effective Disclosure, June 2012, p9 Ibid

Rules, Rhetoric and Reality – Experts and Building Enclosure Disputes

By Steve Alexander*

Steve Alexander

In my last article, I addressed the rise of building disputes relating to the building enclosure and the development of relevant expertise in New Zealand. Now I write about the factors influencing both the adequacy and accuracy of expert evidence in relation to building enclosure disputes. Delivering quality expert evidence will be enhanced by an awareness of issues that influence the conduct of expert witnesses.

The rise in building enclosure disputes in the last decade has been unprecedented. Inevitably, the demand for expert witnesses exceeded supply. This resulted in several trends. First, there was a period of rapidly training new experts in both technical matters and in the legal process, particularly throughout the period 2002 – 2010 (but now ongoing). The rise in demand also attracted the opportunist who sought a share of the lucrative fees available as an expert witness and the expectation of ongoing work for at least 10 years.

To be regarded as an expert requires a comprehensive and authoritative knowledge specific to the building enclosure or other discipline and this should be distinguished from a number of years of work experience in either building trades or building professions. Indeed, the skills of forensic investigation and understanding of dispute resolution practice are usually not possessed by the general population of building industry practitioners. To be an expert witness demands a knowledge and understanding of the legal process and preferably a functional knowledge of the law of dispute resolution, contracts and building. This from my observation is the aspect that is most often lacking due to the recent pressures of demand exceeding supply.

The depth of evidence in criminal matters contrasts starkly with that typically available in commercial building enclosure disputes. The evidence presented in most commercial building enclosure disputes is pedestrian by comparison to the sharp scientific analysis available in criminal evidence. This contrast is not completely explained by the difference in the burden of proof or the relative absence of commercial settlement in criminal matters by the exchange of money. There are numerous challenges to overcome for commercial building evidence to achieve the expected level of truth, accuracy and independence.

In building enclosure disputes it is not unusual for the number of causes of failure to be 10, 20, 30 or more, depending on the size and complexity of the building.

Bear in mind also that the term “leaky building” is a misnomer. Buildings are usually found to contain multiple, and often serious, defects that are discovered only due to the investigation of complaints or suspicions of water entry.

Therefore most building enclosure litigation will litigate causes of action beyond a failure to comply with section E2 External Moisture of the building code.

For the full list of causes to be accurately defined requires a level of forensic investigation that may be beyond the claimant’s financial or emotional capacity or beyond the investigator’s knowledge and experience. Combined with the time pressures provided by the unprecedented number and complexity of disputes, it is not surprising that some experts find it burdensome to articulate all of the causes to a fully accurate level, preferring to provide a shorter list of more generalised descriptions.

This may considerably reduce the time required in the briefing of evidence due to the reduction in headings to be addressed but usually the misunderstandings or uncertainty created by the less energetic expression of defects causes a disproportionate increase the time and cost of the following legal process.

Building disputes require a spread of evidence across six categories.

1. Identify the causes of failure.

2. Identify the extent of damage or likely future damage.

3. Explain non-compliance with applicable codes, standards or relevant literature.

4. Comment on the conduct or contribution of the various parties.

5. Determine the remedial works required.

6. Establish quantum.

A remedial solution may be broad brush and consist of a simple list of required works that can only be estimated with a low level of accuracy. This will promote more debate, whereas a fully designed solution that can be estimated accurately will provide more certainty.

Some experts offer evidence across all six categories, although usually quantum is separately managed by a quantity surveyor. Even if the remaining five headings are covered by two or three experts, the volume of material to cover is considerable before adding the credentials, introductory and concluding statements.

It should not be surprising that building enclosure disputes are often characterised by evidence that is a mile wide and an inch deep. The worst examples resort to the trading of opinions, credentialing and ipse dixit evidence.

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The rise in building enclosure disputes has also demonstrated a serious problem with defining the cause of failure. Experts can easily prove that failure has occurred and water has entered. It is then relatively easy to prove damage. Proving the cause of failure, or the exact reasons for water entering is an entirely different matter that requires testing and analytical methods not widely adopted in New Zealand to date.

Proof of cause to date has been highly qualitative but will evolve to a more quantitative basis as the building industry matures and adopts methods to measure building performance. There is often a remarkable correlation between claimed causes of failure and available solvent defendants. Sometimes a particular cause is entirely overlooked because there is no defendant available who would likely be responsible for that issue.

The practice of “code quoting” is common and detrimental.

We have a performance based building code with no prescriptive solutions mandated. Code quoting is the process of a failure to comply strictly with an industry standard or relevant literature being attributed as the cause of failure, without consideration of other performance evidence. While compliance with relevant standards or literature is highly desirable, this is not what defines the difference between success and failure. Ultimately, performance is the measure of success and quantitative assessment of performance provides the best evidence. The building industry is full of prescriptive thinking even though we have had a performance based code for 20 years.

Combine all of this with the complex matrix of legal issues that attach to the claimant and to each defendant and it should not be any surprise that although settlement may be reached, both claimants and defendants often express dissatisfaction with the process, even if they do eventually get to an outcome that they can live with. Unfortunately many parties obtain outcomes that they cannot effectively live with and there is a substantial social cost in health, relationships, families and the future productivity of the individuals involved.

The Code of Conduct for Expert Witnesses set out in Schedule 4 of the High Court Rules provides an essential benchmark. However compliance is “simple but not easy”, particularly in respect of clauses 3(d), (e), (g), 4 and 5. For evidence to truly satisfy these rules, across the breadth of the types of evidence described above, requires an extraordinary effort.

To begin with, the expert should have their draft brief peer reviewed by another expert in their own practice or by a co-operative colleague if they are in sole practice.

The evidence should go through several iterations with the instructing lawyer. Only after numerous reviews and revisions by those parties is the evidence likely to satisfy the rules to the extent that would be reasonably expected.

Demand and time pressures in the current market usually do not permit this extent of preparation so people adapt to retain the work. Experts are often unwilling to get out of step with the juggernaut of dispute resolution machinery and get swept along without questioning the integrity of evidence. The practice of lawyers writing briefs to mitigate insufficient communication skills of the expert or to mitigate

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time constraints should diminish particularly since this has been directly addressed in the High Court Amendment Rules 2012 effective 4 February 2013.

While early settlement is usually regarded as a desirable money saving outcome, this is rarely achieved in today’s heated market. In recent years, full trial ready briefing is demanded before a mediation. Early settlement at mediations is infrequently achieved and settlement is usually not reached until very close to the hearing. The only eventual saving is the cost of the actual trial. This trend could be caused by numerous factors but is certainly contributed to by poor quality work by experts. With good expert witness skills, clear and effective communication, the technical issues should be clearly understood well in advance of trial and certainly in time for the parties to thoroughly consider their position before mediation.

It seems that legal counsel are, in the current environment, not satisfied that they have a full explanation of the technical issues until trial-ready briefs are exchanged.

However this has a number of detrimental effects. Experts are less likely to produce their best quality work and embark on the extent of review necessary if there is a high level of certainty that their brief of evidence will never see the inside of a courtroom and their tenth brief in six months is in the rubbish bin soon after it is completed. The process of briefs being regarded as bargaining chips rather than statements of analytical accuracy and an erudite consideration of technical issues is not conducive to the advancement of forensic investigation in service of the Court.

The use of “will say statements” can be a helpful tool if there is a clear understanding that their purpose is to avoid the extremely time consuming requirements for the production of a full brief and a less detailed articulation of the issues is accepted. If settlement can be reached with a will say statement, this can reserve the trial brief for the occasions when it is clear that settlement is unlikely and the need to produce a fully rules compliant evidential statement can be impressed on the parties. A general decline in the compliance of briefs is unlikely to be arrested when most enclosure disputes never reach trial where the briefs will be properly tested and the expert’s feet held to the fire.

These matters will all work out in the fullness of time.

Science of the building enclosure will be developed further and buildings built using more quantitative performance measurements. Failure to reach performance requirements will be examined with a more highly developed forensic investigation process. Demand for experts in this area will reduce over time, but probably will never return to pre-2002 levels. More experts will develop finer forensic investigation skills, better communication and wider knowledge of litigation practice and dispute resolution. The general practitioner will have less opportunity to participate at expert witness level.

Steve Alexander specialises in the diagnosis and analysis of building failure, assessing code compliance, design and estimation of building remediation and building performance surveys. Steve is the principal of Alexander & Co (www.alexander.co.nz )

A Professional Obligation to Understand Technology

By Josh McBride*

Barristers have traditionally seen “technology” as a useful adjunct to their practices.

Significant developments over the past century have included the word processor, the photocopier, digital dictation, and PABX telephone systems. The control and operation of these technologies has typically been delegated to non-legal office staff, who receive training on how to use the new Josh McBride systems, and then attempt – with varying degrees of success! – to instruct the practising lawyers on how to work the new dictation machine or photocopier, or the next version of Microsoft Word.

That paradigm is gone, and gone forever. Today’s barrister is invariably armed with a smartphone and tablet, is used to dealing with complex documents “on the fly”, and sends and receives email and text messages remotely.

And yet, despite the seemingly relentless enthusiasm for a more modern approach to our practices (“hey, check this new app out! It’s AMAZING. Would you believe my SON found it…”, etc), we are happy to plead ignorance about how all of this technology actually works, and in particular whether it meets our professional obligations in terms of client confidentiality and security.

Try answering some of these questions: • Is the cloud “safe”?

• What is regarded as an acceptable level of “back-up” for your electronic client files?

• Do “paperless” offices comply with your professional obligations, or are you required to keep paper copies of all key documents?

• Should you delete an email sent to you by your

instructing solicitors or client, if you regard the email as unimportant? If not, where and how should you store it?

• How would you produce a text message as evidence in Court?

• Does courtroom etiquette permit you to read your iPad while sitting in a list in the High Court, waiting for your matter to be called?

•

•

Can you swear an affidavit electronically, by someone signing their name using a digital stylus on a touch screen?

If you want to file an electronic bundle in advance of a hearing, but are unsure about whether the Judge will find this helpful, how do you go about finding out?

Feeling uncertain? You are in good company. There are no readily accessible answers to these questions. And yet lawyers are increasingly expected to understand the technology they are using, and understand its risks and benefits.

Despite the seemingly relentless enthusiasm for a more modern approach to our practices… we plead ignorance about whether this technology meets our professional obligations in terms of client confidentiality and security.

A good example is the American Bar Association’s Model Rules of Professional Conduct, which have been updated to require lawyers to “keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology”. Rule 1.6(c) specifies that a lawyer has to make “reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client”.

Various state bar associations in the US have been considering these new rules and trying to provide

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guidance to their members. For example, the New Hampshire Bar Association advise that lawyers should consider the following questions when choosing a cloud provider (the italics are comments from the Association): 1. Is the provider of cloud computing services a reputable organisation?

2. Does the provider offer robust security measures?

The minimum required security measures are “password protections or other verification procedures limiting access to the data; safeguards such as data backup and restoration, a firewall, or encryption; periodic audits by third parties of the provider’s security; and notification procedures in case of a breach.”

3. Is the data stored in a format that renders it retrievable as well as secure?

4. Does the provider commingle data belonging to different clients and/or different practitioners such that retrieval may result in inadvertent disclosure?

5. Do the terms of service state that the provider merely holds a license to the store data?

The cloud provider cannot “own” data stored in the cloud: data must be identified as the client’s property.

6. Does the provider have an enforceable obligation to keep the data confidential?

7. Where are the provider’s servers located and what are the privacy laws in effect at that location regarding unauthorized access, retrieval, and destruction of compromised data?

8. Will the provider retain the data—and if so, for how long—when the representation ends or the agreement between the lawyer and provider is terminated for another reason?

9. Do the terms of service obligate the provider to warn the lawyer if information is subject to a third-party subpoena?

10. What is the provider’s disaster recovery plan with respect to stored data?

Even more information In July 2013 version 2 of the New Zealand Computer Society Cloud Computing Code of Practice (https://www. thecloudcode.org/upload/files/NZCloudCode.pdf) was released. This provides a benchmark for cloud service providers in terms of cloud practices, processes and ethics. Although aimed at providers, it is useful reading for businesses considering moving to cloud based IT services because it explains the nature of cloud offerings and highlights some of the issues they should consider.

I challenge any barrister in New Zealand to try answering those questions for well-known cloud providers such as DropBox or Google Docs.

What is urgently needed is guidance specifically targeting lawyers and their unique needs. We have huge responsibilities in terms of client privacy and confidentiality.

It is simply not good enough for the professional bodies to send out lengthy, jargon-laden checklists telling us what we all need to ask and look for, next time we consider using DropBox or Google Docs. And yet this is what seems to be happening, world-wide. While large law firms, with IT sub-committees and dedicated IT departments, have the resource to investigate these issues and develop their own best practices, the New Zealand legal profession urgently needs high level guidance on what is and is not best practice in the cloud.

The Law Society of British Columbia has also issued an extensive practice guide on the subject (http://www. lawsociety.bc.ca/docs/practice/resources/checklist-cloud. pdf). The guide again includes an extensive checklist.

Again, very best of luck with it!

What about privacy?

The Privacy Commissioner has developed a brief guide on the issue (http://privacy.org.nz/assets/Files/Brochures-andpamphlets-and-pubs/OPC-Cloud-Computing-guidanceFebruary-2013.pdf). Again, this is replete with high-level edicts such as “encrypt your data”. What does that mean?

How do I do that? It also advises you to “Google” your potential cloud provider along with the words “breach” and “privacy” to test their reputation. But what if it’s a brand new service? How do I know whether it is safe?

10

There is also the National Cyber Security Centre’s website (http://www.ncsc.govt.nz/index.html). This government initiative is designed to assist government agencies and critical infrastructure providers defend against cyber-borne threats, but it also contains links that may help SMEs and individuals. It is, of course, not limited to cloud computing offerings. It lists security advisories and allows the reporting of incidents.

What about the future?

A survey in 2012 conducted by the Legal IT Professionals website (http://www.legalitprofessionals.com/wpcs/ cloudsurvey2012.pdf) noted in its introduction that respondents reported that their top three cloud computing concerns were security and client confidentiality issues, compliance and regulatory issues, and concerns regarding the location of data stored in the cloud.

Notwithstanding this, the survey found indications of acceptance and inevitability in the mass adoption of cloud services in the legal industry. In fact the majority believed that cloud computing would be prevalent within the next five years. Likewise a recent Australian law firm article (http://www.shelstonip.com/case_study.asp?cid=13) quoted a survey which showed that cloud computing take up had increased in Australian business from 42 per cent the previous year to 58 per cent in 2012.

We are working on it! Please watch this space. *Josh McBride is a barrister who practises in the civil and regulatory law areas. Josh is a keen user of technology to ensure efficiency in his practice of the law. For more information about Josh see http://www.joshmcbride.co.nz/.

Cyber Risks - Are You Paying Attention?

By Clinton Stanger*

New Zealand is ranked 4th in the world for cyber attacks.

A recent survey shows that they cost New Zealanders an estimated $625 million, with 50 percent of responding New Zealand companies experiencing high levels of cyber attack. Forty percent of employees receive no cyber security training and the majority of our businesses say they have no cyber attack response plan in place.

AIG Vice President, Asia Pacific and Far East, Ian Pollard said New Zealand businesses are woefully unprepared for cyber risks. “The financial cost of cyber attacks can be enormous and is growing as our reliance on digital media expands.

This can result in lost productivity, legal intervention, lost intellectual property, and reputational damage coupled with the loss of customer confidence. More businesses need to know that if customers perceive that their personal details are under threat, they will switch to a competitor.”

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

At an annual cyber conference in May this year, Marsh hosted 85 risk managers from a broad cross section of UK industries. When surveyed, only 29% of the managers believed that their mobile phone was “safe” or “very safe” from hacking. The 71% who believed their phones to be unsafe represented a significant increase from the previous year when only 57% were concerned.

In a recent survey of the legal industry conducted by Marsh New Zealand in August, 11% of respondents listed the loss of data, data corruption or failure of systems security or website as the biggest risk exposure they see facing their practice.

Overseas figures suggest a much higher rate of concern.

Dependence on “hyperconnectivity” is increasing and this is leading to new forms of vulnerability. While historically attacks may have been isolated incidents in the physical world, these attacks can achieve an amplified, cascading effect through the virtual world. The greater awareness of vulnerability is particular pertinent for mobile technology, and the growing phenomenon of bring your own device (BYOD) technology coupled with malware viruses specifically targeting mobile devices. This means that exposure to the hacking of mobile devices is a real concern for lawyers.

The increasing prevalence of third party outsourcing for document scanning, digital dictation and cloud storage with increasing utilisation of remote access and wireless networking substantially increases the exposure to such risks.

The NZ government is taking the increasing cyber and privacy threat very seriously. In June 2011, it presented its cyber security strategy which is to be headed by the Ministry of Economic Development. As part of this strategy, the Privacy Commissioner has completed a review of the Privacy Act and 136 recommendations have been made. A key recommendation that has been gaining support is the compulsory reporting of serious breaches, (which is already the case in many other countries around the world).

In Australia, amendments to the Privacy Act, which come into force in March 2014, will provide the Privacy Commissioner with greater investigative powers, while significantly increasing penalties for serious or repeated interference with an individual’s policy.

Can insurance help?

The NZBA in conjunction with Marsh have worked with AIG in developing a facility for members to access a liability insurance product to protect against these exposures. The CyberEdge insurance policy itself is a polymorph of first and third party coverage providing cover under the policy for defending actions against a barrister for breach of privacy or lack of due care, as well as costs associated with restoring, recreating or recollecting electronic data.

This initiative also provides access to an online portal which will have embedded best practice advice and access to online training and guidance around practices that should be adopted by barristers to protect against such risks.

Clinton Stanger is a Partnerships & Development Manager at Marsh Ltd. For more information on the CyberEdge Policy email clinton.stanger@marsh.com .

Cyber criminals target information which can be quickly sold or traded for financial or competitive gain with minimal effort, and professionals like barristers could be targeted for attractive data on litigation strategy, information relating to mergers and acquisitions, intellectual property or sensitive information on mediation strategy or settlements. And of course, not every attack will be related to monetary reward. Some could be politically motivated (the whistle blowing phenomenon) and with attackers being determined on public exposure.

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Funding Civil Litigation

By Matthew Smith*

Matthew Smith

Civil litigation is expensive these days. This is as true for the judicial review area in which I do a reasonable amount of work as it is for other civil proceedings – even though judicial review as a process was evolved by the Courts to uphold important Rule of Law values like compliance by the Executive Government with law, and equality before and under the law.

An example: 2B scale costs in judicial review The significant costs of judicial review today can be illustrated with reference to the scale costs that would be awarded by the Court to a respondent where an applicant’s judicial review claim is not successful. Leaving aside disbursements like photocopying and Court (filing) fees, the costs an unsuccessful applicant for judicial review is exposed to for a relatively uncomplicated one day judicial review hearing exceed $20,000 – as the table below shows:

Need to provide litigation funding advice Costs exposures like this have created increasing interest in and client-based demand for practical advice on litigation funding options. Where a client is not eligible for legal aid, what litigation funding options are available to them, and what might a client do to try and minimise their costs exposure if their civil proceeding is not successful?

Options for spreading litigation risk/uncertainty One way to make civil litigation more financially feasible for a client is to try and spread the risk and uncertainty of litigation over more people. There are at least three options here.

First, a client might seek litigation insurance. AIG, for instance, offers litigation buyout insurance to enable companies “to manage the negative financial impact of a wide range of events, including litigation involving large uninsured and underinsured liabilities and complex operational issues”. “Such events” it says “may impede successful closure of merger and acquisition transactions, hinder value creation, or stand in the way of needed financing” (http://www.aig.co.nz/litigation-buyout-andspecial-situation-insurance_919_214464.html).

Where litigation insurance is not available to a client, or it is too expensive, third party funding might be available to support the bringing of a claim (or defence).

As Finn Brooke explained in “Litigation funding: Two perspectives – the funder and the lawyer” (NZ Lawyer, issue 180, 23 Item Description Costs award March 2012), there are a number of 2 Commencement of defence by defendant $3,980 (2x $1,990) ancillary benefits to approaching a third party funder, who will do a due Preparation for first case management conference (including 10 $796 (0.4 x $1,990) diligence analysis before deciding discussion about discovery) whether to assist. Those benefits can Filing memorandum for first or subsequent case management include a clearer idea through due 11 $796 (0.4 x $1,990) conference or mentions hearing diligence of strengths/weaknesses of a claim. Note, however, that there 13 Appearance at first or subsequent case management conference $597 (0.3 x $1,990) are obligations for a party to disclose 30 Plaintiff’s or defendant’s preparation of briefs or affidavits $4,975 (2.5 x $1,990) funding arrangements to the other side where the litigation is funded Defendant’s preparation of list of issues, authorities, and common 32 $3,980 (2 x $1,990) by a third party unrelated litigation bundle funder who has no prior interest in the 33 Preparation for hearing $5,970 (3 x $1,990) proceeding and/or who has the ability 34 Appearance at hearing for sole or principal counsel $1,990 (1 x $1,990) to exercise some form of control over the conduct of the proceeding. On Indicative costs total (excl. disbursements) $23,084 these obligations see the Supreme Court’s recent decision in Waterhouse v Contractors Bonding Limited [2013] NZSC 89, particularly at [76].

(The table above assumes informal disclosure by the respondent, one case management conference at which A third strategy for spreading the risk and uncertainty timetabling orders are made, no interlocutory applications, of litigation over a greater number of people, and by a one day hearing, and a costs allowance for only one doing so making civil litigation financially more feasible counsel at the hearing).

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for a client, is to create and use an entity, such as an incorporated society, to advance the proceeding. While this will not always be available as a strategy (depending on what the claim is), it is a not uncommon way to spread risk and fundraise for public law proceedings in particular – as borne out in incorporated ratepayers groups, for instance, bringing judicial review claims.

Berkett v Cave [2001] 1 NZLR 667 (CA), at [13]).

The decision of the High Court in Morrison v Treaty of Waitangi Fisheries Commission (2003) 17 PRNZ 37 provides an example of a New Zealand case where a PCO was made.

As things currently stand PCOs are in their infancy in New Zealand. In this, we can be contrasted with the United Kingdom, for instance, where such orders are much more commonly sought and granted by the Courts in public law proceedings in particular.

The creation and use of an entity such as an incorporated society to advance a civil proceeding has two main litigation costs-related benefits. The first is that it spreads the funding ‘burden’ from one to many. This can help to reduce the costs exposure of any given individual to the litigation, and may help in turn to make civil proceedings financially more feasible than they otherwise would be.

Second, the use of an entity to advance a proceeding can signal to the Court that the claim has a broader public interest dimension to it. Amongst other things, this might later justify a reduction in costs ordered by the Court to be paid by the entity if its case does not succeed, on the ground that the Courts should not discourage by costs awards responsible interest groups from testing public law decisions through the Courts.

Our relative lack of experience in this country with protective costs order, and the lack of case-law on them, makes it quite likely that the making of a PCO would be contested by a respondent.

Possibility of seeking a protective costs order Finally, consideration might be given to whether a client could successfully apply for a protective costs order (PCO) to help with the potential risk/liability that they would face if their proceeding is unsuccessful. PCOs are available where an applicant can, as a minimum, show (i) that the case mounted is clearly arguable; (ii) that there is a substantial public interest in obtaining a decision of the Court on the point or points at issue, irrespective of the result; and (iii) that it would be unduly onerous for the applicant to be expected to fund the litigation even in the interim (see

Our relative lack of experience in this country with PCOs, and the lack of case-law on them, makes it quite likely that the making of a PCO would be contested by a respondent – which will in practical terms add to the time taken to bring a proceeding to a final hearing, and the costs involved in doing that. That said, PCOs have the potential to play an important role in ensuring access to justice, and should not be overlooked by litigators asked to identify options practically open to a client wanting to pursue costs protections up-front. *Matthew Smith is a barrister at Thorndon Chambers. He is the author the Judicial Review Handbook (Brookers 2011). This article is an update of one originally published on the Thomson Reuters website and has been reproduced with permission from the author and Thomson Reuters.

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LawSpot: Helping to Meet Unmet Legal Need

By Nick Mereu* and Elizabeth Chan**

LawSpot (www.lawspot.org.nz) answers New Zealanders’ legal questions for free. In doing so, it aims to make the law more accessible for ordinary Kiwis.

LawSpot operates an online legal Q&A website. The website targets unmet legal need in the community and aims to reach those who would not otherwise be able to afford legal advice.

LawSpot works closely with Community Law Wellington and Hutt Valley (CLWHV).

The founding of LawSpot: a tech solution for a legal problem Former Russell McVeagh solicitor, Maya Shino, and her fiancé, Bowen Pan, a tech entrepreneur, founded LawSpot in early 2012. As a volunteer at the CLWHV, Maya noticed that clients would often ask the same kinds of questions from week to week. She also observed that client numbers attending community law advice sessions varied week to week.

As a result of these concerns, Maya and Bowen combined their legal and technological skills to create LawSpot. The purposes of LawSpot were to: • help people who did not have the time to attend a

community law advice session; • create a searchable database of previous questions and answers, so that people could look for similar questions and consider how the answer might apply to his or her own situation; • reduce valuable community law centre time spent

answering duplicate questions; • provide an easy way for lawyers to volunteer, by allowing lawyers to answer LawSpot questions online and in their own time; and • use the research done by lawyer volunteers to improve the Community Law Manual (a free online legal resource provided by the CLWHV).

A recent LawSpot training session

Recently, LawSpot has partnered with law firms and barristers to enable those with expertise in a particular area of law to publish answers directly on the website (without requiring CLWHV’s approval to publish). This measure will help to reduce the work load of the CLWHV, increase the efficiency of LawSpot’s answer model, and improve the timeliness of the advice given.

Key information LawSpot’s current key advice areas (the areas of law which the public asks the most questions about) relate to consumer, criminal, family, employment, and property/tenancy law. You can visit www.lawspot.org.nz/browse for a full list of the areas of law that LawSpot answers questions in.

How it works Anyone with Internet access can submit a legal question on to LawSpot’s website.

To date, LawSpot has: • trained over 80 volunteer lawyers; • partnered with five law firms to provide pro bono assistance; • partnered with Write Ltd to ensure published answers maintain a high plain English standard; • had 30,000 site hits in the last year (two-thirds of those visits are from people in Auckland and Wellington); • received over 900 questions from the public; and • published answers to 350 questions.

First, the question is reviewed by an independent team of question vetters. The question vetters ensure that the question is generalised, written in plain English, and is a type of question that LawSpot answers. Like the CLWHV, LawSpot does not answer questions about conveyancing, property leasing (except residential tenancies), or questions from businesses, landlords, and employers.

How barristers can help LawSpot would like barristers to contribute by: 1. drafting answers; and/or 2. reviewing the work of LawSpot’s junior volunteer lawyers; and/or 3. publishing answers to the website (in the name of the barrister approving the answer).

Question vetters also ensure that any confidential or identifying information about the person asking the question or his or her particular circumstances is removed from the question. This step is taken to manage potential conflicts of interest.

We would appreciate any help that barristers can provide to meet the growing demand for our service.

Next, the vetted question is made available for LawSpot’s lawyer volunteers to answer. Lawyer volunteers can browse unanswered questions, choose which question they would like to answer, and submit a draft answer to the website.

The draft answer is then reviewed by a senior lawyer, before being published to the website by the CLWHV.

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For more information, please visit our website at www.lawspot. org.nz or contact our CEO, Nick Mereu, at ceo@lawspot.org. nz or by calling 0212033598. * Nick Mereu is the CEO of Lawspot and a case manager at Financial Services Complaints Limited. ** Elizabeth Chan is a Judges’ Clerk at the Supreme Court and a volunteer for LawSpot.

The building blocks for a more profitable practice The new barrister research package

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3 Barrister Premium Includes: i) CaseBase Case Citator (New) ii) New Zealand Law Reports iii) Linxplus iv) One LexisNexis Practical Guidance module v) One Practice Area Collection# of your choice vi) Three individual titles of your choice

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* Individual titles in Barrister Essentials excludes New Zealand Law Reports and LinxPlus. # A Practice Area Collection can be replaced with 3 individual titles. Practice Area Collections exclude General Practitioner, Primary Materials, Encyclopaedic Reference and Litigation, Evidence & Procedure Collections. © 2013 LexisNexis NZ Ltd is part of Reed Elsevier. LexisNexis and the Knowledge Burst logo are registered trademarks of Reed Elsevier Properties Inc., and used under license.

NZBA Annual Conference 2013 - Efficient Justice Queenstown – Heritage Hotel 23rd to 25th August 2013 The NZBA would like to thank the following speakers and sponsors for making the conference an outstanding success: • • • • • •

Rt Hon Chief Justice Dame Sian Elias Chief High Court Judge Hon Justice Helen Winkelmann Hon Justice Forrest Miller Justice John Fogarty Justice Raynor Asher Justice Murray Gilbert

• • • • • •

Judge Paul Keller Judge Susan Thomas Julian Miles QC Professor John Burrows QC Bruce Gray QC Mike Heron QC

• • • • • •

ANZ Bank New Zealand Ltd LexisNexis Marsh Ltd Merrill Corporation Office Max Thomson Reuters

Andrea Manuel and Bruce Gray QC

Michele Sissons, Deb Kellar, Judge Paul Kellar, Miriam Dean QC, John Turner and Russell Bartlett Stuart Rose and Dean Tobin

Thomson Reuters sponsors Nicola Cody and Anne McLennan with Jenny Casey (middle)

Merrill Corporation sponsor Lesley Fulton together with Solicitors-General Martin Hinton QC (South Australia), Leigh Sealy SC (Tasmania) and Mike Heron QC (NZ)

Antonia Fisher, Justice Helen Winkelmann, Judge Susan Thomas, Gillian Coumbe QC and Miriam Dean QC

Brian Latimour, Michele Sissons and Desley Horton

Jane Anderson, Sandra Grant and Marcus Graney

Marcus Elliott, Justice Murray Gilbert, Andrew Skelton and Peter Wright

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Professor John Burrows QC and Penelope Stevenson

Judge Paul Keller, Deb Keller, Suzanne Robertson and Michele Sissons

Peter Wright, Wendy Barker, Andrew Barker, Justice Helen Winkelmann and Sonja Clapham

Cheryl Gwyn and Philip Skelton QC

David Chisholm QC and Merran Chisholm

Sandra Grant and Jane Taylor

Stephen McLeish SC (Solicitor-General, Victoria) and Pam Davidson

The Solicitors-General: Mike Heron QC and Leigh Sealy SC (Tasmania)

Crown Law team: Una Jagose, Cameron Mander, Cheryl Gwyn and Mike Heron QC

Bruce Gray QC and Judge Susan Thomas

Stephen Mills QC and Kate Davenport QC

Andrew Barker, David Russell QC and Kevin Glover

LexisNexis (sponsors) team – Matthew Pedersen, Felix Geiringer, Justice Helen Winkelmann, Gillian Desley Horton, Matthew Smith and Andy Boss and John van Rooyen Coumbe QC, Judge Susan Thomas and Antonia Fisher Michele Sissons

17

Protect Yourself Against Fraud

By Vivian Vesty* When it comes to fraud against consumers, scammers constantly change the way they target victims in order to keep them off guard.

The Ministry of Consumer Affairs estimates New Zealanders lose hundreds of millions of dollars each year to consumer fraud, and their statistics show that one in ten people approached by a scammer will hand over money to them.

In an age where scammers seem to be one step ahead, what can you do to keep your money secure?

This article highlights some of the key things to look out for, and our tips on how you and your clients can protect your money and financial information.

Cheque Fraud Although most of us tend to associate the word “fraud” with “Internet” or “white collar”, a much older form of the crime has raised its head again – cheque fraud.

In the past, cheque fraud has been declining along with the use of cheques. Every year, about 10% fewer cheques are issued compared to the year before. Most of the cheques that are fraudulent have been posted, as criminals use this opportunity to intercept them. They might break into rural post boxes, knock over post office boxes or rob a post delivery person.

“This year, cheque fraud is actually outstripping Internet Banking fraud in terms of the amount of money involved,” says Peter Plowman, Senior Manager, Fraud Risk, for ANZ. Cheque fraud involves any method of altering existing cheques. A common way of doing this is cheque washing, where a chemical is used to strip the writing off the cheque. Criminals then trace the signatures and fill out the rest in any way they like. “Our advice to clients is to use alternative payment methods that are more secure, for instance credit card or Internet payments.

“Also, keep your cheque book under lock and key or safely hidden, and never pre-sign any cheque. One way to help curb fraud is to keep tabs on your bank account, so that any unexpected activity can be identified quickly”, says Plowman.

It is important to make sure that the bank has your current contact details, especially your mobile phone number. That is the first method we use to contact you if we suspect that you have been the victim of fraud.

Going Online - Be savvy with what you do online • Once again, keep your contact information with your bank up-to-date. That way, they can get in touch when they notice an unusual transaction. Your mobile number is particularly important.

• Protect your personal information. Depending on your public image and how you manage your information,

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answers to common security questions, your signature or important documents may be in the public domain or somewhere they can be accessed. Keep tabs on how much of your personal information is released publicly and ensure you destroy or securely store sensitive information.

•

Don’t reuse important passwords. Make sure your passwords that give access to finances, email and social networking are unique and difficult to guess.

Criminals only have to try the 100 most popular passwords in the world to access 15% of all accounts.

•

Keep your computer up-to-date. This includes your operating system, browser and anti-virus software.

Automatic updates often plug weaknesses that hackers have learned to exploit.

•

Consider two-factor authentication for Internet banking.

You can choose to activate this additional security feature. For certain transactions, a special code will then be sent to your mobile phone and this code needs to be entered for the transaction to continue.

Contactless Payments – what you need to know ANZ Contactless is a new payment technology available on ANZ credit and debit cards, allowing you to pay for small purchases (NZ$80 or less in New Zealand, but transaction limits may vary overseas) without swiping, dipping, signing, or entering a PIN at any participating merchant.

Even without having to sign or enter a PIN, ANZ Contactless transactions are still as secure as all other payment methods using your ANZ credit and debit cards.

That’s because it uses secure encryption technology and the same, reliable payment network as regular card transactions.

•

•

•

You are in control – your card never leaves your hand to make a payment No accidental payments – your card must be extremely close to the reader at checkout to work Not billed twice - even if you tap more than once at the checkout, you’ll only get billed once for your purchase

If our ANZ Fraud system notices unusual purchasing activity on your ANZ credit or debit card account, the ANZ Fraud team will be alerted, they’ll block your card so no further transactions can be made and then contact you to check that everything is in order.

More Information ANZ has recently developed a Fraud Awareness Pack for our business customers to help businesses prevent payment fraud. If you’d like a free copy, or want to find out more, please contact Viv Vesty at ANZ (vivien.vesty@anz.com). * National Manager, Professional Services & Associations, Commercial & Agri, ANZ

Mandatory Continuing Professional Development for Lawyers

By Jacqui Thompson* As expected, the Lawyers and Conveyancers Act (Lawyers: Ongoing Legal Education – Continuing Professional Development) Rules 2013 (CPD Rules) have introduced a mandatory continuing professional development (CPD) requirement. All lawyers will need to: 1. Develop a continuing professional development plan and record (CPDPR); 2. Complete 10 hours CPD per annum; and 3. Submit a declaration to the NZLS to the effect that they have completed their CPDR and that they have completed the minimum CPD hours.

Time Frame: From 1 April 2014, lawyers will be required to complete 10 CPD hours each year. Up to 5 CPD hours completed in the transition period can be credited towards the 2014 requirement. The timeline is: 1 Oct 2013 – 31 Mar 2013 Transition (voluntary) period:

up to 5 CPD hours can be

carried forward.

1 Apr 2014 – 31 Mar 2015 10 full CPD hours (including

any carried forward hours)

required.

31 Mar 2013 –

Complete Annual Declaration of Compliance with CPD rules within 5 working days.

Look before your leap The first step it to identify your training needs and create a plan to meet these. The secret is not to get locked into any one type of CPD offering but to make your CPD requirement work for your practice. Choose only training/ learning that you want or need. The aim, after all, is to ensure your ongoing development and knowledge. Various organisations will be providing training options and CPD tools such as online CPDR records. Take some time to think about your needs and the relative costs.

What activities count to CPD? The CPD activities you undertake must be within the bounds of the CPDR you have developed. They also must: • be verifiable (this could be as simple as a receipt for a seminar or a copy of an article); • provide opportunity for interaction/feedback; • be planned and structured, having stated purposes and outcomes; • be related to your identified learning requirements; • not be part of your day to day work.

They may include: • attending courses, seminars, conferences, training,

• •

• •

coaching and study groups; distance learning programmes and webinars; lecturing, teaching or instructing (including reasonable preparation time); writing legal articles/books; preparing and presenting submissions (there are requirements as to the kind).

There are a number of limitations on what can and cannot be included within the above. It would be worthwhile taking some time to check the NZLS Guidelines to the Rules.

What does a CDPR look like?

Although the CPDR is not submitted when you make your CPD declaration, it may be required for audit purposes or if you are applying for a deferment. Records must be kept for three years.

There is no prescribed format for a CDPR. It depends on what you need. It is an ongoing record with no start/stop date. It needs to include • learning needs; • an action plan to achieve these; • an activities record; • reflections on outcomes; • reflections on future learning needs; • documentation verifying attendance.

The NZLS Guidelines suggest dividing the CDPR into the following learning needs: • ethics, professionalism and client care; • knowledge of the law; • legal skills; • personal management skills; • practice management skills; • law and procedures in other countries; • other relevant disciplines.

There is a sample plan for general practice available at www.lawsociety.org.nz/__data/assets/pdf_file/0007/70864/ Sample-CPD-Plan-August-2013.pdf .

Auditing for compliance and failure to comply Each year the NZLS will examine a sample of lawyers’ CPDRs and documentation to verify they have met the requirements. If a lawyer appears to have misunderstood the CPD Rules, assistance and education will be offered by way of correction. However a knowingly false declaration of compliance will be referred to a standards committee for inquiry under the Lawyers and Conveyancers Act 2006. Your CPDR may be required by the standards committee for consideration at this stage. * Jacqui Thompson is the Training Director for the NZBA

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NZBA Sponsorship of Litigation Skills Course Each year NZBA sponsors two barristers who are members of the Association to attend the NZLS Litigation Skills Course.

This is a report from Elliot Lynch and Jonathan Orpin who were the 2013 scholarship recipients.

Elliot Lynch*

“It was the best of times, it was the worst of times” This quote from Charles Dickens aptly describes my recent week long experience attending the Litigation Skills Programme. Flying into Christchurch I was pondering the comments from previous participants. I had heard about the voluminous work load including the late nights preparing and early mornings presenting. On the first night at Lincoln I thought those views were exaggerating the course. By the second night, however, I found they accurately described the study and preparation required to complete the programme.

For the past 28 years the New Zealand Law Society has facilitated a week long intensive programme focusing on developing and refining advocacy skills. In August, Lincoln University hosted 96 lawyers from a variety of professional backgrounds to attend this course. I was fortunate to be the recipient of a scholarship from the New Zealand Bar Association which enabled me to participate in this highly valuable and at times highly stressful advocacy programme.

The week long intensive programme is designed around the adage ‘learn by doing’. Each day participants were required to spend time on their feet advocating their way through case scenarios. Most days involved demonstrations from experienced senior counsel, followed by practicing drills and concluding with critique from the faculty members. There was an incredible wealth of experience from the faculty who were led by Justice Priestley, Judge Farish, Judge Ruth and Judge von Dadelszen.

The feedback received provided a valuable insight into the do’s and don’ts of effective advocacy. The faculty were encouraging and supportive in assisting you to focus on eliminating weakness and developing strengths in your court presentations. The critique was very specific and targeted towards ensuring that the participants became more persuasive in their arguments. Further to this critique, our individual exercises were video recorded and viewed by a third faculty member. During these video sessions participants would receive feedback on delivery and presentation.

Throughout the week the course covered opening and closing addresses, leading evidence in chief and cross

20

examination. At the end of the week, these intensive sessions culminated in a mini trial at the Christchurch District Court presided over by a judge. Our trial was heard before Judge Harvey who at the conclusion provided further insightful critique. It was invaluable having experienced counsel and judges provide comments, feedback and suggestions on how to improve your trial advocacy.

I wish to express my thanks and gratitude to the New Zealand Bar Association for providing a scholarship to attend this programme. Although the course stretched me both physically and mentally, I have gained both competence and confidence. The investment that has been made in me will certainly see returns for my clients who I believe are the real beneficiaries of this programme. *Elliot Lynch is barrister practising in Gisborne and specialising in family and criminal matters.

Jonathan Orpin **

In August 2013, I was fortunate enough to attend the New Zealand Law Society Litigation Skills Programme.

The programme is a weeklong residential course held at the Lincoln University campus in Canterbury.

The course, which has been running for almost 30 years, employs a ‘learning by doing’ teaching method. Over the course of the week faculty members demonstrated different advocacy skills. Participants then had opportunities to practice those skills and receive feedback from the faculty. Skills covered included: leading evidence; cross-examination; production of exhibits; impeaching on previous inconsistent statements; leading and crossexamining experts; and opening and closing arguments.

At the end of the week participants put those skills to the test by taking part in mock trials in front of real judges in courtrooms in the Christchurch District and Family Courts.

I found the programme thoroughly worthwhile. The faculty – judges and senior civil and criminal litigators from across the country – were excellent and very supportive. They generously shared their knowledge and experiences and provided very helpful feedback. They also helped and encouraged participants to find and develop their own individual advocacy styles.

Not unexpectedly, faculty members had differing views about the effectiveness of particular advocacy techniques and the best way to approach particular issues. This led to a number of useful discussions with faculty members explaining their differing views and where and why they disagreed with their colleagues.

The course employed a variety of different teaching tools.

One of the most helpful was the use of video reviews.

Each time I practiced a skill, my performance was recorded. After receiving feedback from faculty members who had watched me live, there was a one-on-one video review session with a different faculty member. Reviewing myself on video was invaluable – although slightly unnerving at first! It gave me the unique opportunity to watch myself as an advocate and see what I look like from the other side of the bench. I immediately identified aspects of my advocacy style that I liked and want to develop, as well as those that I did not and resolved to change. The ability to try new things and then evaluate them over the course of the week was fantastic.

I was able to attend the course thanks to the generous support of the New Zealand Bar Association which awarded me an NZBA Scholarship. I am most appreciative of that assistance and take this opportunity to thank the Association and its members. It is excellent that the Association supports junior members of the independent bar in this way.

Finally, if other junior members of the bar are thinking about attending the course next year (or in years to come), I recommend that you do. The course gives you a rare opportunity to learn from senior litigators, repeatedly practice skills yourself, and try out new approaches to see what does, and does not, work. Best of all, you get to do that without worrying about having a client sitting watching you at the back of the courtroom! ** Jonathan Orpin is a barrister at Stout Street Chambers in Wellington. His main areas of practice are civil and commercial litigation.

New Members of the New Zealand Bar Association Marina Anderson

WELLINGTON

Kristina Bunting

WELLINGTON

Antonio Cozzolino

AUCKLAND

Carissa Cross

WELLINGTON

Chris Gallavin

CHRISTCHURCH

Philip Gurney

AUCKLAND

Mireama Houra

AUCKLAND

Brian Latimour

AUCKLAND

Elliot Lynch

GISBORNE

Simon Mitchell

AUCKLAND

Thomas (Tom) Molloy

AUCKLAND

Julie O’Brien

TAURANGA

Mark O’Brien

WELLINGTON

Nicola Robson

CHRISTCHURCH

Craig Stevens

WELLINGTON

Genevieve Taylor

WELLINGTON

Ian Vernon

WELLINGTON

Justin Wall

AUCKLAND

BARRISTER and MEDIATOR

New website: www.nigeldunlop.co.nz New email: nigel@nigeldunlop.co.nz 21

The New Zealand Bar Association/Young Lawyers’ Committee Mooting Competition 2013

By Monica Hamlyn-Crawshaw* and Elizabeth Chan** The Young Lawyers’ Committee (YLC) is excited to present the inaugural New Zealand Bar Association (NZBA)/YLC Mooting Competition (Competition) in September–October 2013 in Wellington. We are grateful to the NZBA for its invaluable support.

The YLC is a committee of the Wellington Branch of the New Zealand Law Society. As the representative body for lawyers with up to five years’ post-qualification experience (PQE) in Wellington, we have an educative role in providing opportunities for young lawyers develop their legal skills. This year, we have focused on extending our reach to areas of advocacy, professional development, and welfare. The idea for running a mooting competition came from young lawyers who, in response to a survey that we ran on the review of professional legal studies last year, asked for a law competition for young lawyers. Of all the law competitions run at university, such as negotiation, witness examination, and client interviewing, court advocacy is the most difficult and prestigious.

The Competition is designed to give young lawyers the opportunity to develop their skills of written and oral advocacy in a courtroom context. The Competition is not limited to “litigators”, as young lawyers are still discovering the different career paths available to them in the legal profession. We also hope that the Competition will be a challenging opportunity for young lawyers to venture outside of the areas of law that they practice in every day to develop a broad understanding of and appreciation for the law.

The Competition will simulate an appellate court hearing, with a senior and junior counsel on either side. Twelve teams will be divided into six appellant and six respondent

teams. The first round of moots will be held across the week beginning 7 October. The top teams will then progress to the semi-finals based upon the points earned in their heat moot, which will be held on 16 and 17 October. The winning teams from the semi-finals will compete in the finals, to be held on 24 October. Barristers will provide mentoring to the semi-final and final teams.

On 3 September, the New Zealand Law Society hosted a training session for the participants led by Karen Clark QC and Matthew Smith of Thorndon Chambers. Karen Clark QC is an experienced barrister who specialises in civil and commercial litigation, judicial review and public and constitutional law.

Matthew Smith’s main area of practice is civil and commercial litigation, with a particular focus on public law.

Judges will include legal practitioners, judges, academics, in-house counsel, and professional legal studies instructors.

A panel of three Supreme Court judges has been confirmed for the finals. The inaugural NZBA/YLC Mooting Competition 2013 champions will be determined at this final on Thursday, 24 October at the Old High Court in Wellington from 5.30– 7pm. Members of the NZBA, the public and the profession are warmly invited to attend.

For more information, please visit www.younglawyers.co.nz or email ylcmooting@gmail.com. The co-ordinator of the Competition is Elizabeth Chan. * Monica Hamlyn-Crawshaw works at the Ministry of Culture and Heritage. ** Elizabeth Chan is a Judges’ Clerk at the Supreme Court and the Deputy Convenor of the Wellington Young Lawyers’ Committee

From left to right: Jamie Grant, Nigel Salmons, Elizabeth Chan, Monica Hamlyn-Crawshaw and Rikky Minocha. Absent: Tim Cochrane, Natalie Pierce, Nadia Gastaldo-Brac and Mallory Ward.

22

Life Outside the Bar: A Day at the Races                 



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By Melissa Perkin

   directed by the trainer which direction to turn and when to The NZBA member benefits programme contains a wide brake – the aim of the exercise was to show us how we can variety of offerings not only directly related to legal practice brake heavily and steer at the same time. We were required but a wide variety of other goods and services. One such

to literally jump on the brakes to make sure the ABS anti-lock  braking was engaged.

Their day long BMW Advanced Driver Training 1 Course was   a great opportunity to learn some new skills and find out how After lunch, we were able to have another try around the offering is through BMW New Zealand.

 good the safety features now available in track with our newly acquired cornering  modern cars are. We tried out brand new and braking skills. More emergency stop  3 series BMWs. I joined 13 other drivers at training followed in a more realistic setting  the racetrack at Hampton Downs south of as we were each following               the other Auckland for a 6 hour session. We had a 1 course participants were all given the              and   hour in-class briefing by driving trainer Mike instruction to stop without any warning – a  Eady, which detailed the types of driving costly mistake could have ensued if we  we would be taken through and learning hadn’t got it right. about basic techniques for cornering and  The last experience of the day is one I stopping and the best driving position.  will never forget – BMW Hot Laps. I have The first practical exercise us  to •   required      rarely been so frightened and exhilarated take to the track where we followed our at the same time but when I got out of the trainer around track. Our trainer spoke • the  car I had a broad grin to match that of to us throughout this exercise using a all the other participants. We were taken •  walkie-talkie we had in each car. This training showed on a race (as passengers) with one of the two trainers who • which  us when to brake and accelerate and take the best angle are race drivers. This meant speeding around the course in •  through the corner. It was also a great opportunity to be taken conditions which simulated a real race situation. We were  out of my comfort zone as we went faster when cornering going at speeds in excess of 200kmph and often side by  around the track than I would ever have attempted on the side with the other car. We spent a lot of the race within a           road. This gave me the opportunity to see how much better car length of each other, often at speeds over double the  the cars can handle conditions and speed than I ever gave open road speed limit. That experience gave me incredible  them credit for. admiration for race car drivers and their true skill – something  which is difficult to pick up when looking at a car race Next up was the slalom – cones were set up at regular  from the sidelines. That experience alone made the day intervals along the track, the aim being to drive as fast as  worthwhile, but the skills I have picked up are ones which are possible around the slalom – easier said than done. After always handy to have.

3 attempts I had improved my speed around the slalom by 25%. This again showed what the car could do in a tight Make sure to mention your NZBA membership as you are cornering situation and with increased driver confidence. able to receive a 10% discount on any of the courses on offer (BMW Advanced Driver Training 1 and 2 and the BMW Skid The last exercise before a welcome lunch break was Pan Experience). More details are available at http://www. emergency stopping and turning whilst braking hard. We had bmw.co.nz/com/en/insights/driving_experience/overview.html to drive at a cone at 80kmph and then at the last minute, be

I have rarely been so frightened and exhilarated at the same time but when I got out of the car I had a broad grin.

23

Life Outside the Bar: Hobby and Vocation

By David Bates NZBA member David Bates published his first book in 2009. David says that everyone needs a hobby. But his latest work is not so much a hobby as a wake-up call.

It arises out of his concerns over a social problem that needs to be talked about.

Many people have more than one hobby but probably a particular interest will stand out. In my case it just happens David Bates to be books and writing.

My second novel, The Making of Travis, was published in December 2012 by Polygraphia Ltd, Auckland. It and my first novel, Beneath the Cherry Tree, (also Polygraphia Ltd, 2009) are both available in hardcopy from the publisher and me, and on e-book (Kobo). And there’s been a bit of other scribbling over the years too.

the rape of a woman in her own home. Travis was caught, arrested and charged. The second person was never located or charged. Travis was tried and acquitted but his personal tragedy didn’t end there. His prosecution has always troubled me. I still have his client file. It was as if it didn’t want to let me go. For many years I toyed with writing up the case as a book but didn’t. More recently, the time seemed right and so Travis became the kernel of the story I produced. As I have said elsewhere, there seemed to me to be a need to not forget Travis. More accurately, perhaps it is a need to not forget that endless flow of victims. They must be entitled to at least that much.

Travis is not a cheerful story. You won’t feel happy after you read it. But, I have tried to make it honest in what it portrays. Deliberately I have set it in another generation, 1950’s and 1960’s New Zealand. It is not my Travis’s personal story, not at all. But, there are many similarities. The town of Waynton where the story unfolds does not exist – it is fictitious. But, in another sense, it is everywhere. Hence the anagram in the name of the town – you’ll be able to pretty quickly work it out.

There seemed to me to be a need to not forget Travis. More accurately, perhaps it is a need to not forget that endless flow of victims. They must be entitled to at least that much

How did Travis come about?

There are various reasons but shortly stated I think it was because of my own need to somehow record an enduring concern about the scourge of child abuse. For forty years and more I have had contact with victims and offenders, through seventeen years as a police officer and about 30 years as defence counsel. As if exposure to the scourge of abuse in those ways wasn’t enough, there was also the nineteen years I spent as a district inspector for mental health services.

In all of those roles one couldn’t escape the relentless flow of complaints, hurt, misery and anguish of victims – some never able to make disclosures or full disclosures, and some able to do so only after perhaps decades of despair. Rarely, one also encountered false complaints and innocent ‘perpetrators’ but, mostly, there was just an equally relentless flow of hollow and self-serving denials and pathetic attempts at justifications. The huge tragedy is, as we all know, the human condition is such that abuses by some, of our greatest treasures, has always been and will always be.

And so, why Travis? In the early 1980’s I acted for a 17 year old youth. He and another boy were the suspects for

24

Finding time to indulge one’s hobby can be a problem. But find time one must. The Law is a bit of a hard task master, or a really tetchy mistress at times depending on your point of view. It is a wonderful vocation and I wouldn’t have missed it for quids! But even friends need time out now and then. So, one juggles available time. Lately there have been a few children’s stories falling from my pen and perhaps some will see the published light of day.

Our grandchildren are the unwitting guinea pigs. A third novel is progressing and I will get it completed – soon I hope. Then, there’s a bit of gardening, and of course the essential holiday from time to time.

In fact, in one hour and five minutes the taxi will be here to take my long suffering wife and I to the airport so I’d better finish now. I hope you find time to have a look at Travis. If you don’t, that’s fine. Just be sure to make time for a hobby if you don’t already have one. Everyone needs a hobby.

David Bates – Barrister – Tauranga 9 August 2013.

Excerpt from ‘The Making of Travis’

By David Bates, (Polygraphia Ltd, Auckland, 2012) …By the time Travis made an appearance it wasn’t quite dark but was pretty close. Talk about pushing your luck.

Jennifer hadn’t heard him arrive even though she strained her ears as much as she could. She’d been sitting in her room since finishing in the kitchen, keeping out of the way, anxious, wondering where Travis had got to, even scared a bit at what Mum might do when he finally turned up. Day time was certainly over and done with, just hanging on by the skin of its teeth. Night was fast taking over – there was no stopping it. The temperature had dropped. Cooler evening air occupied room after room. She heard a saucepan lid rattling, bouncing about a little, letting steam escape. Smells of boiling pumpkin, potatoes, silver beet and simmering corned brisket and onions seeped through the house. There’d be carrots in the pot too, and a dash of brown vinegar. There always were. Boy she was hungry.

The vegetable-vinegar-meat smells drew her from her room, back towards the kitchen. She walked in from the hall as Travis pushed open the back door. Cautiously, he stepped inside. Cynthia Whittaker, on full alert, rounded on him.

“And where do you think you’ve been Travis Whittaker!”

Before he could respond she continued. “What time do you call this?” She allowed the briefest of pauses. “Well?” Then she waited, but only just.

Jennifer was under no illusion.

Travis couldn’t have been either.

Their mother was fit to burst.

Travis was very pale. Jennifer couldn’t recall seeing him look that bad before; like the colour of big dough blobs just before they went in the oven. You couldn’t tell exactly why from his colour but something wasn’t right; in fact, the more you looked, something was dreadfully wrong. He looked crook, really crook.

Carrying his brown school bag seemed a bit odd, out of place, especially since he wasn’t even wearing his school clothes. Why he’d have that with him she couldn’t quite figure out. His eyes were sort of wide open as if more or less fixed in that position, kind

of like he was non-stop staring except they didn’t have any light or energy in them. They were just big eyes doing nothing much at all. Travis never usually looked like that.

Jennifer had no idea how he managed but as she watched she noticed his eyes somehow appear to make some sort of contact with his mother’s. He sort of passed his eyes over her face, without any real semblance of connection yet, to a marginal extent optically reacting to her inquiries. But, that was all. He just swept his big empty look right on past Cynthia Whittaker’s face and across Jennifer’s too, then, very slowly, his head tilted steadily downwards until his chin was as close to resting on his chest as it could get without actually having quite made it. Judging by the angle Jennifer guessed he probably had a pretty good view of the patterns on the lino. Stock still, Travis just stood there. Maybe he was waiting for his mother to speak again. Maybe he was trying to think of sensible responses to anticipated questions. You couldn’t tell.

Whatever, thought Jennifer, he showed no signs of being likely to say anything useful or significant in the immediate future. It was like he’d known all along he’d be in big trouble, so big he wouldn’t have a hope of avoiding it; so, simply resigning himself to the inevitable, worked out the safest way of dealing with it was doing what he always did – and was shutting down.

Again. Jennifer had seen it before. That was Travis. He was so good at it. No-one, nothing, would get through to him, not until he was good and ready.

If Mum hadn’t twigged on yet she’d be pretty close.

“Well, I’m waiting young man!

What have you got to say for yourself? First your shoes, now this! I don’t know what you think you’re about!” Cynthia Whittaker continued staring directly at him, standing still, feet almost together, leaning just the slightest bit forward from the waist, hands on hips at the point where the fabric ties pulled back the sides of her apron, elbows wing-like…

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Webinar - The Essence of Judicial Review Introduced by Hon. Justice Wild, and presented by Francis Cooke QC and Matthew Smith

Matthew Smith

Francis Cooke QC

The NZBA is committed to providing high quality and relevant training and continuing professional development for members and interested lawyers throughout New Zealand. As part of this we are cooperating with Thomson Reuters to provided online webinars and training modules.

In the first of our joint ventures we are presenting a recorded webinar “The Essence of Judicial Review”.

This was first held as a seminar in Wellington in August, but will soon be available on demand.

The webinar is introduced by Hon. Justice Wild, and presented by Francis Cooke QC and Matthew Smith.

Justice Wild describes the seminar as filled with practical insights on judicial review applications. The presenters concentrate on the realities of this type of proceeding and suggest the best approaches and useful techniques.

The focus is very much on the process of building a case for review and draws heavily on Francis Cooke’s high level of experience and what Justice Wild describes as Matthew Smith’s almost encyclopaedic knowledge of this area of law.

The webinar will be available for viewing later in October.

Information will be available on both the NZBA’s and Thomson Reuters’ websites.

For more information please contact jacqui.thompson@nzbar.org.nz

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thomson reuters and the new zealand bar association present

a webinar on

judicial review AVAILABLE LATE OCTOBER Visit www.nzbar.org.nz

Life Outside the Bar: Petrol Head’s Corner – the Audi SQ5

By David O’Neill* Think “SUV” – yawn! Think “Diesel SUV” – narcolepsy sets in! Well, think again! The Audi SQ5 has arrived!!

The local Audi dealer, Ebbett Prestige, gave me an SQ5 to drive over the weekend. This included a trip to the beach and back so I had a good chance to test out the claims made by Audi that this car broke the mould. They weren’t lying.

I even took the family – and no one complained (mind you I think they are used to being tossed around in the car).

This baby can go!!

Techo specs It’s a 3.0 litre twin turbo diesel. It puts out 230k kW (313 hp or lots of grunt) and 650 nm of torque (lots of pulling power). The claimed fuel consumption is 6.8 litres/100km (didn’t find out – but it is fairly miserly). Audi reserve the “S” badge for their true sporting vehicles……. Anyway enough of that – onto the good stuff…….

Town and around Around town it’s nothing special. It’s a nice car to drive – in fact it really is like a car, just that you sit up higher than usual. The cabin is luxuriously appointed – all the usual goodies. There is more than adequate seating for five people and a good sized boot.

Open Road Everything changes when you get out on the open road.

This thing goes like stink!! It accelerates like it really has got a V8 under the bonnet and it takes 5.1 seconds to go from 0 – 100 km/h. That is quicker than a Porsche Cayenne and a truck load of large engined V8s from across the ditch and a lot of other sports cars from Europe. It’s very, very, quick.

It eats hills like they weren’t there and goes around corners like a small three-door hatch.

It flew over to the beach and came back in similar style.

It’s sure footed in the corners and, with the shorter wheel base, a bump in mid corner doesn’t jump it off the chosen line.

I was hugely impressed. Everything about it was pleasant and in addition, it had all the necessary attributes of a sports car with an ability to carry lots of luggage. The seats fold down in the rear so you can convert it to a large station wagon.

Not everyone will use the power, but it’s there if you want it. It can pass in tight places and go around corners even if they do come up too quickly.

The initial number of SQ5s imported into New Zealand has been pretty much sold out and the Audi distributors are now looking at replacing the ordinary 3.0 litre Q5 with the SQ5 making it the only 3.0 litre option in the Q5 range.

What’s it like?

I picked up the SQ5 on Friday afternoon and toddled back to the office. No dramas. It sounded quite burbly and I discovered Audi weren’t content to allow their customers to listen to a diesel, so they put a sound actuator in the exhaust system and passengers hear a V8 noise rather than the clankety clank of a diesel – sounds naff but it actually works. It really sounds like a V8. Even from the outside it still sounds like a V8 because of a specially tuned exhaust.

Think David Brown tractor with a modern twist.

For those of you who are interested, my run over to the beach and back saw me average 7.7 litres/100km/h. I wasn’t driving economically, so that’s a really impressive figure.

It’s not cheap but you are purchasing quality and to be frank the first diesel rocket released into New Zealand. I’ll bet the competitors are now scrambling to get something equivalent onto the market.

My thanks go to Ebbett Prestige for the opportunity to drive the vehicle. * David O’Neill is a Hamilton barrister and member of the NZBA Council.

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Taking Silk – 106 Years of Excellence

By Jacqui Thompson A brief legal history of Silks begins in 1597 when Sir Francis Bacon was appointed the first Queen’s Counsel Extraordinary.

He was given a patent which gave him precedence at the Bar. He was formally styled King’s Counsel in 1603. It was in the early 1830’s in the United Kingdom that Queen’s Counsel became prominent, overtaking the title of the formerly more senior serjeant-at-law. Eventually, the title became synonymous with excellence at the Bar rather than mere seniority, with appointments based on merit.

The first Queen’s Counsel to be appointed in New Zealand were appointed 1907 by the then Chief Justice, Sir Robert Stout. It was a very different geographical split – of the 10 appointed, two were from Auckland, four from Wellington, two from Christchurch and two were from Dunedin.

We had to wait until the late 1980’s for women to appear on the list. The Rt Hon Chief Justice Dame Sian Elias not only claimed the title of New Zealand’s first Chief Justice of the Supreme Court of New Zealand, but in 1988 she and Justice Lowell Goddard became our first women QCs. Of the 264 appointments, 22 have been women.

Some of our youngest silks have come from the same family - when Lord Cooke was appointed QC in 1964, he was 38 years old - his son, Francis Cooke QC, took silk at 39.

Rumour has it that in our recent round of appointments one of the appointees is still in his thirties.

There has of course been controversy over whether the title is still appropriate in these “post empire” times. In

2004, in the UK following a full review which included the appointment process, it was decided to retain the title Queen’s Counsel but to alter the appointment process. New Zealand, as we know, adopted the title Senior Counsel in 2006, only to reintroduce Queen’s Counsel in 2012. And while much is made of Australia’s abandonment of the title, it is worth noting that one jurisdiction never abandoned it (Northern Territory) and another has since reintroduced it Queensland in 2013. Of the 74 Senior Counsel appointed in Queensland, only four have opted to retain that title with the rest electing to revert to Queen’s Counsel.

The title is a standard of excellence and merit which is recognised globally. The post nominal QC (or eventually one assumes - KC) tells a client that they are getting one of the best. It is part of the history of the legal profession and the qualities it should strive to maintain. And it is a way for the profession to recognise achievement beyond the ordinary in its members.

Holders of the title can be justifiably proud of their achievements in their legal careers. Congratulations to all those who were recently called to the Inner Bar. For a list of NZ Silks with current practising certificates as of July 2013, see http://www.crownlaw.govt.nz/uploads/ qcs_practising_certificate.pdf/ For a list of all appointments since 1907, see http://www. crownlaw.govt.nz/uploads/qc_since_1907.pdf

Christchurch Silks’ Call Ceremony 19 August 2012

Philip Hall QC and Jonathan Eaton QC

Christchurch Silks Call Ceremony

Christchurch ceremony

Hon. Justice William Young and Rt. Hon. Chief Justice Dame Sian Elias

Nigel Hampton QC congratulates Jonathan Eaton QC

Nigel Hampton QC congratulates Philip Hall QC

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Auckland Silks’ Call Ceremony 16 August 2013

This ceremony was one of three held in Auckland. We were unable to attend all three so our apologies to those who are not featured in this selection of photos.

The Bench

Auckland High Court - No. 1 Courtroom

Gillian Coumbe QC is welcomed to the Inner Bar

Clive Elliott QC is welcomed to the Inner Bar

Jane Hunter, Simon Jefferson QC and Inger Blackford

Miriam Dean CNZM QC and Clive Elliott QC

Gillian Coumbe QC

From Bankside Chambers: Kate Davenport QC, Christine Meechan QC, Philip Skelton QC and Peter Watts QC

Judge McHardy and Frank Godinet

Peter Watts QC

Vivienne Crawshaw

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Junior Barristers’ Function – Auckland

By Jacqui Thompson Our most recent Junior Barristers’ function was held on 18 July 2013. It was hosted at Shortland Chambers and organised by NZBA Junior Barrister Council representative Desley Horton. We were lucky to have Justice Gilbert agree to speak. Gillian Coumbe QC also shared some of her insights with the assembled audience of junior lawyers.

The Judge outlined his tips for junior barristers. He began by noting that it is fundamental that persuasion is the object of everything a barrister does, and therefore this should be employed at all stages of a proceeding, from drafting pleadings through to briefs of evidence and submissions.

However it is critical for a barrister to be sincere and genuine.

He or she must be true to their own style. The basics have to be carried out well, but credibility is fundamental.

Tips for barristers included: • Prepare. Never be unprepared and never let a client or the judge down through a lack of preparation.

• Master the facts. All cases are won or lost on these. Deal with material facts and don’t leave it to the judge to introduce these. Never make a mistake about the facts - don’t get them wrong as this can expose a client to being treated roughly on cross-examination.

• Don’t commit too early to a particular approach. Identify the issues and what the essential elements are. What is the minimum you have to prove? Don’t set up extra hurdles requiring proof.

• Refine the issues and confine yourself self to relevant issues - no side-tracking. Judges will always be impressed by your strongest arguments.

• Articulate your propositions persuasively. Be accurate and don’t over reach. This applies at all stages of your matter and documents.

• Be efficient and economical. The cost of litigation is partly

related to trial length, so confine yourself to material issues and deal with them in a logical order.

• Plan your questions for witnesses. Keep them short and compelling.

• Think! Look at the case from every angle. How would you attack it if you were on the other side?

• Never lose sight of the merits. You have to try to show why your outcome is just - judges want to be able to find on the merits.

• Be courteous - always. Be nice to court staff. Never be rude to opposing counsel, as this could affect your career later.

Justice Gilbert noted that judges’ minds are never made up in advance of a hearing. The reality is that judges are ambivalent about who wins, but they can’t help but be influenced by quality submissions. So make an impression at the start; summarise in one page why your client should win.

Ms Coumbe noted that it was important that advocates did not wilt under fire. They were there to advance their clients’ interests. They should therefore be robust and keep trying, even when they felt that the judge was against them. Fortunes in court could change in a day.

Justice Gilbert reinforced this and reminded those present that a judge’s comments in a trial were part of the process of testing.

You should not assume that the judge was not with you.

The Judge said that he had had a long and fulfilling career in law. A legal career was very rewarding and people should feel lucky to do it.

The New Zealand Bar Association thanks Shortland Chambers for hosting the event and in particular, Pamela Caldwell.

Bianca Saldanha, Anja Borchardt and Nura Taefi

Michele Sissons, Justin Wall and Stephanie Thompson

Jacinda Kirtllan, Genevive Vear, Justin Wall and Andrew Tringham Justice Gilbert, Sarah Venning and organiser of event, Desley Horton

Hilary Max, Alexandra Franks, Laura Clews and Thomas Cleary

Arlan Arman, Bridie Sweetman, Sefton Revell and Antonio Cozzolino

Roshni Kaur, Justin Wall and Andrew Tringham

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Tyler Buckley and Susan Giles

Get Up and Speak – Wellington

By Jacqui Thompson On 15 August 2013 the NZBA re-ran seminar in Wellington a version of its successful “Get Up and Speak Up” seminar, in association with the Wellington Women in Law Committee. It was hosted by Russell McVeagh. Once again the event was a sell-out with over 100 attendees. The speakers included the Hon Justice Susan Glazebrook, Hon Justice Helen Winkelmann, Karen Clark QC, Janine Bonifant and Andrew Butler. Originally conceived by NZBA past-President, Miriam Dean CNZM QC, the seminar, aimed to encourage women advocates to look for opportunities to take the lead in court or, in general, to speak up in every forum.

All of the speakers noted that it is in the interests of employers, judges and the profession to ensure that women succeed. The seminar delivered practical guidance and suggestions for those who attended. Key themes that emerged were the need for self-belief and the need to talk to your success. One of the main differences between male and female lawyers was that men made it known when they had done something well, whereas women were more reticent about their achievements. Often this led to them being overlooked.

Ms Clark noted that progress in women achieving parity in the legal profession was like a glacier – there is movement but it is slow. She said that at the heart of being successful there were four basic requirements: authenticity, self-belief, integrity and preparation.

Janine Bonifant drew on her own experiences when describing how to create opportunities. Like the other speakers, she talked about the importance of self-belief in all areas of a career and then outlined the key steps to take when speaking up. She said that for her, the key was preparation, more preparation, and even more preparation.

In terms of goals, you need to avoid rigidity in your approach to career planning and to seize opportunities when they arose.

Andrew Butler remarked that everyone wants women to succeed. And the fact that a lawyer has been employed shows that an employer’s belief in that person. Self-belief is

Members of Women in Law in Committee: Sophie Klinger, Karen Feint, Georgina Rood, Elizabeth Chan and Rachel Dewar

not only important to the lawyer, but it is also important from a client’s perspective. Ultimately it is a matter of doing what you are being paid to do. Self-doubt will drive us to prepare and do our best, but we need to make sure people hear about what we have achieved.

Justice Winkelmann emphasised that when talking about whether the profession is male dominated, we need to bear in mind that it is quality and not quantity that matters.

The profession has many dynamic, innovative and talented women who are now at its heart and can shape it. Having said that, it is not all roses. Justice Winkelmann noted that when she was first appointed to the bench, women appeared in court regularly, but they did not often have speaking roles. The problem is that this hasn’t changed much (except perhaps for Crown counsel and now PDS). The judge said that while junioring can be a great way to gain experience, it was critical to avoid being trapped in that role.

Justice Glazebrook highlighted the myths and fallacies surrounding the position of women in the legal profession in particular and in achieving higher positions in general.

Drawing on facts and figures from surveys and reports (including the 2012 UN report on gender equality) she demonstrated that while everyone was talking about how far women have come, the results have been poor. Rather than change being glacial, in some respects it was stagnant. And the usual explanations given for this lack of progress are not backed up by the statistics. It is important for women to have a voice – to make themselves heard and to speak up.

The seminar was both enlightening and inspiring and was very successful. The NZBA would like to extend its thanks to all involved. We would also like to thank Gillian Coumbe QC for her excellent paper.

The NZBA is running a similar event for women professionals in Christchurch on 22 November. Details will be on our website in October.

If you would like to buy a copy of Ms Coumbe’s paper, please email nzbar@nzbar.org.nz

Speakers: Karen Clark QC, Janine Bonifant, Justice Glazebrook, Justice Helen Winkelmann and Andrew Butler.

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2013-2014 COUNCIL CONTACT DETAILS STEPHEN MILLS QC – President Ph: +64 9 307 9820 stephen.mills@shortlandchambers.co.nz P O Box 4338, Shortland Street, Auckland 1140 PAUL MABEY QC - Vice President/President Elect 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 pj@davey.co.nz PO Box 1811, Shortland Street, AUCKLAND 1140 CLIVE ELLIOTT QC Ph: +64 9 309 1769; Fax: +64 9 366 1599 elliott@shortlandchambers.co.nz PO Box 4338, Shortland Street, Auckland 1140 MARCUS ELLIOTT Ph +64 3 348 7300 me@marcuselliott.com PO Box 9344, Christchurch BRUCE GRAY QC Ph: +64 9 307 9811; Fax: +64 9 307 1572 bdgray@shortlandchambers.co.nz PO Box 4338, Shortland Street, Auckland 1140 LISA HANSEN Ph: +64 4 914 1052 l.hansen@barristerscomm.com PO Box 8045, Wellington 6143 DESLEY HORTON - Junior Barristers’ Representative Ph +64 9 307 9826 dhorton@shortlandchambers.co.nz P O Box 4338, Shortland Street, Auckland, 1140, SIMON MOORE QC - Co-opted Ph: +64 9 336 7505; Fax: +64 9 336 7629 simon.moore@meredithconnell.co.nz Meredith Connell, PO Box 2213, Auckland 1140 DAVID O’NEILL Ph: +64 7 839 1745 Fax: +64 7 838 9319 david.oneill@nzbarrister.com PO Box 815, Hamilton 3240 SUZANNE ROBERTSON Ph: +64 9 307 8778 suzannerobertson@xtra.co.nz PO Box 854, Shortland Street, Auckland 1140 JUSTIN SMITH QC Ph: +64 4 917 1080; Fax: + 64 4 472 9029 justin.smith@stoutstreet.co.nz PO Box 5722, Lambton Quay, Wellington MATTHEW SMITH – Junior Barristers’ Representative Ph: +64 9 460 0749 matthew.smith@chambers.co.nz PO Box 1530, Wellington 6140 DEAN TOBIN Ph: +64 3 477 8781 Fax: +64 3 477 8382 dean.tobin@princeschambers.net P O Box 1424, Dunedin MALCOLM WALLACE – Vice President/Treasurer Ph: +64 3 379 6976 Fax: +64 3 366 6291 malcolmwallace@bridgesidechambers.co.nz P O Box 13254, Christchurch 8141

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