At the bar October 2017

At The Bar October 2017

In-House Counsel and the Bar Animal Welfare Profile of 2017â&#x20AC;&#x201C;2018 NZBA Council www.nzbar.org.nz

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YOUR ASSOCIATION p17

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4 From the President – Clive Elliott QC 8 Your Council – profile of 2017–2018 NZBA Council 21 New Members – recently joined members 11 Training Committee Report – the ABA/NZBA Appellate Advocacy Workshop 32 Young Lawyers Mooting Competition – report 35 Ninth Annual Sentencing Competition – report 38 Events – photos from the Silks' call ceremonies, Auckland Silks’ dinner and the Annual Conference LEGAL MATTERS

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12 Arbitration Act 1996 – a further opportunity for refinement 17 Animal Welfare – a sentencing update 22 In-House Counsel and the Bar – what the Susskind world has in store 30 Indemnity Insurance – how to set the correct level 33 Book Review – Collisions in the Digital Paradigm PRACTICE AND LIFESTYLE

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24 27 37

The Behaviour Gap – letting emotion get in the way of making smart financial decisions Marketing: Cacophony or Focussed? – concentrating your marketing efforts (Not) Petrol Heads' Corner – David O’Neill’s column is sabotaged by Harriet Hybrid

p41 The views expressed in the articles in this publication may not necessarily be the views of the New Zealand Bar Association. EDITORIAL COMMITTEE David O’Neill - Chair Tel: +64 7 839 1745 Email: david.oneill@nzbarrister.com

Jacqui Thompson (Contributions & Advertising) Tel: +64 9 303 4515 Email: jacqui.thompson@nzbar.org.nz

Melissa Perkin - Executive Director Tel: +64 9 303 4515 Email: melissa.perkin@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 4516 Email: nzbar@nzbar.org.nz Web: www.nzbar.org.nz PO Box 631, Auckland 1140

From the President Clive Elliott QC

It has been a particularly active year so far for the NZBA. I outline below a few of the matters that are keeping us busy. NZBA President-Elect and Council Election – 2017/18 I was delighted with the level of interest from members who put themselves forward for election. We had 12 candidates for 7 places on the Council and a contested election for the position of President-Elect. Following the rule change at last year’s AGM, we conducted an election with electronic voting for the first time. This went very well, with the results being available immediately at the end of the voting period. We had a very good voter turnout of over 40% which is substantially higher than we have had in previous elections. The new term for the NZBA Council commenced on 1 October. My congratulations to Kate Davenport QC who was the successful candidate for the position of PresidentElect. The contest for the President-Elect position was very close. We are pleased that Chris Gudsell QC has agreed to remain as Chair of the Training Committee. Chris has worked tirelessly with the Training Committee, both with the development of the webinar and workshop programmes as well as with our international links. A special thanks to Chris for his work and commitment in this important area for the Association. We welcome for the first time onto the Council, Maria Dew from Auckland. Profiles of the Council members are on page 8. We sadly farewell John Dixon QC and Peter Davey from the Council. Both have served on the Council for more than one term - John from 2014 and Peter since 2013. We have been grateful for their time and commitment to the work of the NZBA, with John being on the Criminal and Strategic Planning Committees and Peter being the main architect of our training syllabus, a Mastering Advocacy Course Director and a leader in the provision of training. Appointment of Queen’s Counsel By way of celebration for the 13 new Queen’s Counsel, dinners were held in Auckland on 31 August and Wellington on 28 September. Photos from the call ceremonies and the Auckland dinner are published on pages 38 and 40. 2017 Annual Conference – 15 & 16 September – Blenheim The Annual Conference was held at the Marlborough Convention Centre in Blenheim. The conference was a great success, with wonderful speakers both local and from overseas. Our two dinners at Wither Hills Vineyard and the Omaka Aviation Heritage Centre were well received. The addition of optional activities for the second year running was a great success, with a significant majority of delegates participating. My thanks to the Conference Committee and to the secretariat for putting on such a great event. Photos from the conference are on page 41. Award of Life Membership to Sir Edmund Thomas KNZM QC Following the rule change at the 2016 AGM, the Association may appoint of a life member on rare occasions in appreciation for and in recognition of a person’s work and service for, efforts on behalf of and dedication to the NZBA. The Council made a decision to award life membership to Sir Ted Thomas, who was one of the founding members of the NZBA in 1988 and has had an interest and involvement in the NZBA for many years. I was delighted to present the award to Sir Ted at the formal

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dinner at our 2017 Annual Conference, after which Sir Ted received a well-deserved standing ovation. Management Committee With the continued growth of the NZBA, there has been an increase in the workload for a number of Council members and the President. To assist with the sharing of these responsibilities and to enable greater speed and efficiency in decision making, a proposal was made to set up a Management Committee. The proposal was put before members at the September 2017 Annual General Meeting and passed. The new Council will establish the management committee early on in its term. Strategic Planning The Council has nearly completed the draft strategic plan which it commenced work on in February 2017 and I will report back to members on specific initiatives arising from this work. Swearing-in and Final Sitting Ceremonies Jack Hodder QC spoke at Justice Jagose’s swearing-in in Wellington. Jack was a former partner of His Honour. Paul Radich QC spoke at Justice van Bohemen’s ceremony in Wellington. Jonathan Eaton QC and I spoke at Justice Fogarty’s final sitting in Christchurch in August. I then attended a large and successful dinner that evening. The dinner was organised by the Canterbury/ Westland branch of the NZLS and was very well attended by both solicitors and barristers, including a number of our Christchurch members. INTERNATIONAL BAR LINKS Attendance at New South Wales Bar Association Council Meeting - 7 September 2017 I attended the NSW Bar Association Council meeting on 7 September in Sydney. I addressed the Council on a number of topical issues. It is hoped that these types of visits will help foster closer links between our two organisations. International Council of Advocates and Barristers (ICAB) The 2018 World Bar Conference will be held in Stellenbosch in South Africa over Easter. It is important to maintain the international relationships with other ICAB representatives which have developed over the course of the last few years. Our then President Paul Mabey QC (as he then was) attended the 2016 conference in Edinburgh on behalf of the NZBA. I plan to attend and participate at the 2018 conference. I have been invited to speak on behalf of the New Zealand Bar. International Bar Association Annual Conference – Sydney – October 2017 I will be representing NZBA at the IBA Conference in Sydney in October 2017. Members of ICAB will be attending the conference as well and I will attend an ICAB Council meeting. The Australian Bar Association is also organising events which I will attend. Training Our training team has been particularly busy. Apart from regular workshops, it is focussing on creating practical workshops for members and online course modules. In this report, I would like to note two events in particular. The first is the upcoming Paperless Hearings Workshop on 26 October. This will be a hands-on session and it is designed to give counsel a better understanding of how to deal with the new court environment of electronic bundles and in particular, to demonstrate how to successfully present using electronic documents. In turn, attendees will be able to practice presenting and receive advice and support from our workshop leaders, Josh McBride and Phillip Cornegé, and our workshop guest judge, Dr David Harvey. More information about this event is on our website. The second item I want to mention is the recent combined Australian Bar Association/NZBA Appellate Advocacy Workshop. The training branch of the ABA, the Advocacy Training Council (ATC), has been

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running this course in Brisbane for some years. This well regarded course is usually attended by highly experienced barristers, including those who have applied or are applying in the near future for Silk. This year we joined the ATC to present this course on 8 September to 10 September. We were extremely fortunate to receive the active support of the Supreme Court and the Court of Appeal. The Hon. Justices William Young, Harrison, Brown and Gilbert gave generously of their time to join us in Brisbane. We thank their Honours for sharing their experience and insights with all of the attendees, five of whom were from New Zealand. We would also like to thank Dr James Farmer QC who, together with Course Director, Chris Gudsell QC, joined the coaching team. Without the contribution of our judges and senior counsel as coaches, these courses would not achieve the extremely high levels of success that they do. This course also reflects a deepening training relationship between the NZBA and the ABA, one which we hope to foster in the coming years. I note that the Chair of the ATC (and President of the South Australia Bar Association), Ian Robertson SC, has already contributed to our programme with his highly regarded Case Analysis webinar. I would like to thank Ian and his predecessors for their unstinting commitment and support for our training endeavours in New Zealand, and hope that he will join us next year on other training events. Junior Lawyers Mooting Competitions Joint NZBA/NZLS Mooting Competitions have been held in Auckland, Wellington and Christchurch. Council members involved in assisting with these competitions included Jonathan Eaton QC, Dale Lester, Lisa Hansen and junior barrister representatives Gretta Schumacher, Lara Mannis and Tiho Mijatov. A brief summary on the Christchurch competition is on page 32. In addition to the assistance from the Council members, I am especially grateful for the support of many members who have helped with training, judging and providing feedback to competitors. Sentencing Advocacy Competition We supported the Auckland Sentencing Advocacy Competition in August, for students from the University of Auckland, University of Waikato and Auckland University of Technology. NZBA Council member Peter Davey presented the prize at the final. A report on the competition is on page 35. Law Reform Committee The Law Reform Committee has been busy over the last few months. My sincere thanks to Paul Radich QC for his work as Committee Chair as well as to all those who have assisted with our consultations - recent consultations include: •

Ministry of Justice – Anti-Money Laundering and Countering Financing of Terrorism Guidance and Regulations Working Group – Paul Radich QC has been representing NZBA on the working group particularly with a view to doing what is possible to make sure that barristers are not captured by the regulations where it is inappropriate that they are so captured. Derek Johnson and Peter Castle have been working with Paul in this regard (September 2017).

• Ministry of Justice – legal aid audits – Robert Lithgow QC assisted with providing detailed comment on proposals to extend the legal aid audit regime to include more onsite audits (August 2017). • Ministry for the Environment – Fee waiver criteria in the Environment Court – Pru Steven QC and Bal Mathieson assisted with this consultation (July 2017). • International Bar Association Consultation on Legal Aid Guidelines in Civil, Administrative and Family Justice Systems – Stephen van Bohemen and Kevin Clay assisted with providing feedback (August 2017). 30th Anniversary Finally, the NZBA turns 30 next year. Please pencil in the date of 4 July 2018 for a big 30th anniversary dinner. To conclude, thank you for your ongoing support. As always, feedback, suggestions and comments are appreciated. Please don’t hesitate to contact me or any of your Council members. Clive Elliott QC President

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2017 – 2018 NZBA Council From 1 October 2017, the new Council took control of the NZBA. We farewell some valued council members, Peter Davey and John Dixon QC, who chose not to stand for re-election. The NZBA warmly welcomes its new Council. CLIVE ELLIOTT QC – President (Auckland) Clive is a barrister, registered patent attorney and arbitrator. Before going to the Bar in 2000, he was a partner and headed the litigation team at the firm now known as Baldwins and was with the firm for 17 years. Clive was appointed Queen’s Counsel in 2013. In addition to serving on several committees related to intellectual property, information technology and e-commerce, Clive has authored chapters in various publications on those topics and is President and a member of the management board of the Intellectual Property Society of Australia and New Zealand (IPSANZ). Clive is the NZBA President, the Chair of the Access to Justice Committee and our International Liaison representative. See www.shortlandchambers.co.nz

JENNY COOPER QC (Auckland) Jenny is an experienced commercial litigator specialising in company and securities law, fair trading and consumer finance law, competition law, and insolvency. Prior to joining Shortland Chambers in 2011, Jenny was a litigation partner at Bell Gully. She is a member of the Council of the Legal Research Foundation, and on the New Zealand Law Society’s Civil Litigation and Tribunals Committee. Jenny is a member of the Equitable Briefing and Promotion of the Bar Committees. See www.shortlandchambers.co.nz/barristers/ jenny-cooper MARIA DEW (Auckland) Maria has more than 25 years’ experience as a litigator. In 2000, she commenced practice as a barrister in Auckland after working in law firms and in-house roles both in New Zealand and the United Kingdom. Her employment law practice involves acting for both employers and senior employees. She is regularly involved in advice on disciplinary and grievance actions, urgent injunctions on restraints of trade and confidential information and restructuring issues. Since 2013, Maria has been the Deputy Chair of the Health Practitioners Disciplinary Tribunal. She also serves as an Expert on the Domain Names Commission Panel of Experts. See www.bankside.co.nz/barrister/maria-dew

KATE DAVENPORT QC – President-Elect (Auckland) Kate has previously served on the NZBA Council as VicePresident, Auckland. She stepped back from the Council three years ago but during that time continued to assist the NZBA with advocacy training and gender equity issues. Kate is a member of Bankside Chambers in Auckland. She is a civil and commercial litigator with more than 23 years’ experience at the independent bar. Kate also has a special interest in professional regulation. She is deputy chair of Real Estate Agents Disciplinary Tribunal and for 9 years was Deputy Chair of the Health Practitioners Disciplinary Tribunal. She is also a member of the prosecution panel for the New Zealand Law Society. Kate took Silk in 2013 and was admitted to the UK Bar by the Middle Temple in July 2015. Kate is Co-Chair of the Equitable Briefing Committee. See http://www.bankside.co.nz/barrister/katedavenport-qc/

JONATHAN EATON QC, Vice-President (Christchurch) Jonathan joined the independent Bar in 1998 after 12 years’ practice in general litigation and as a senior prosecutor. Jonathan is a specialist in criminal jury trial and appellate litigation. Jonathan was appointed Silk in 2013. He practises in Christchurch at Bridgeside Chambers. Jonathan returned to the NZBA Council in 2015, having previously been a Council member from 2003 to 2010 including

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JANE MEARES (Wellington) Jane is a commercial barrister, with a wide range of public and commercial experience. At the Bar, she has been involved in a broad range of public sector and commercial advisory work, working with in-house legal teams, firms of solicitors and overseas clients. Prior to joining Clifton Chambers, Jane was the chief legal adviser at the New Zealand Treasury – the Treasury Solicitor – and before that was a corporate and commercial partner at Bell Gully. Jane is a member of the Advisory Bar and Equitable Briefing Committees. See www.cliftonchambers.co.nz

a 2 year term as the South Island NZBA VicePresident. Jonathan is Chair of the Criminal Committee. See www.bridgesidechambers.co.nz SIMON FOOTE (Auckland) Simon practises in commercial, criminal and regulatory matters with particular expertise in complex construction and engineering disputes and international arbitration. He is a member of Bankside Chambers in Auckland and in Singapore, and is a Fellow of the Chartered Institute of Arbitrators (UK) and the Arbitrators’ and Mediators’ Institute of New Zealand. Simon receives instructions as an arbitrator in domestic arbitrations. Simon is the Chair of our Conference Committee and a member of the Equitable Briefing Committee. See www.bankside.co.nz

DAVID O’NEILL – Treasurer and Vice-President (Hamilton) David O’Neill is a barrister in Victoria Legal Chambers in Hamilton. He was admitted to the Bar in 1980 and worked initially for a law firm in Napier before returning home to the Waikato in 1984 to work in the family firm of O’Neill Allen & Parker, becoming a partner in 1985. He was initially engaged in criminal jury work. David joined the independent Bar in 1995. He mainly practises in the civil/commercial area of litigation as well as Family Protection and Testamentary Promises claims. David also undertakes arbitrations, both as counsel and arbitrator and is an Associate of AMINZ. Apart from his legal practice, David is a competitive rally driver and writes regular motoring columns for two publications, including At the Bar. David is the current NZBA Treasurer and Secretary, Chair of the Member Benefits Committee and editor of At the Bar. See www.nzbarrister.com

LISA HANSEN, Vice-President (Wellington) Lisa commenced practice as a barrister sole in February 2010. Prior to that she was a Crown Counsel at the Crown Law Office for 13 years. Her earlier legal experience included two years as a commercial solicitor at Caudwells, Dunedin (1991 to 1993) and three years as the Regional Solicitor for the Department of Conservation’s West Coast Conservancy (1993 to 1996). Lisa is a Gambling Commissioner and a member of Legislation Advisory Committee. Lisa is a member of the Training, Equitable Briefing, Promotion of the Bar and Conference Committees. See www.barristerscomm.com

PAUL RADICH QC (Wellington) Paul has 30 years’ experience as a trial and dispute resolution lawyer and has presented cases, to Supreme Court and Privy Council level, in a range of areas. Paul joined the Bar in 2012, having been a litigation partner with Izard Weston, Bell Gully and Minter Ellison Rudd Watts. Paul has acted for the Crown and for iwi organisations in the Waitangi Tribunal, the Maori Land Court and in the High Court and has negotiated Treaty settlements for iwi. He is an author of textbooks on judicial review and public law. Paul was appointed Queen’s Counsel in 2014. Paul is the chair of the Law Reform Committee and a member of the Equitable Briefing and Conference Committees. See www.cliftonchambers.co.nz

DALE LESTER (Christchurch) Dale has been practising in civil litigation in Christchurch since 1990. He left a well-known Christchurch firm to practice as a barrister in 2004. He was one of the founding members of Canterbury Chambers in 2007. Dale’s main areas of practice are contract, commercial, insolvency and estate litigation. He has extensive experience in disputes concerning property transactions and leases, has acted for many of the insolvency practitioners in the South Island and in numerous estate disputes. Dale regularly represents clients in mediations, arbitrations and in all the major courts and also acts as a mediator and arbitrator. Dale is a member of the Law Reform Committee. See www.canterburychambers.co.nz

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GRETTA SCHUMACHER - Junior Barristersâ&#x20AC;&#x2122; Representative (Auckland) Gretta is a graduate of the University of Auckland, having completed a BA/LLB (Hons). She graduated second in her cohort, receiving a Senior Scholar award in both Law and Arts and received the F A de la Mare Memorial Prize for best academic record in the Part III law programme. Gretta represented New Zealand at the Philip C Jessup International Law Moot Competition as well as the Red Cross AsiaPacific International Humanitarian Law Moot Competition. Gretta was admitted in June 2015. Prior to joining Chambers as a junior barrister, Gretta was a Judgesâ&#x20AC;&#x2122; Clerk at the Court of Appeal of New Zealand. Gretta is a member of the Junior Members and the Equitable Briefing Committees. See www.shortlandchambers.co.nz ROB STEVENS, Associate Member Rep. (Waikato/Bay of Plenty) Rob Stevens graduated from Victoria University of Wellington and was admitted in 1986. He was a founding partner and principal at Fanselows Solicitors

in Wellington from 1991 until January 2012, when he left to join the Public Defence Service as a Deputy Public Defender in its Tauranga office. In March 2013, Rob took up the post of Public Defender for the Northern Region. He was appointed an inaugural member of the Legal Aid Tribunal and has served on the New Zealand Law Society Legal Services Committee. He has a particular interest in Bill of Rights issues and is a member of the Conference Committee. DEAN TOBIN - (Dunedin) Dean was admitted to the Bar in 1984. He worked as a solicitor specialising in civil litigation until 1996, when he commenced practice as a barrister sole. Dean undertakes civil litigation in the District and High Courts and acts as an advocate in arbitration and mediation. His practice incorporates general civil litigation, copyright and intellectual property disputes, trust and family protection claims, insolvency, company litigation, construction disputes and sharemilking disputes. Dean is a member of the Law Reform and Strategic Planning Committees. See www.deantobin.com

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Training Committee Report ATC/NZBA Appellate Advocacy Course Jacqui Thompson*

From 8-10 September, I was fortunate enough to observe at the 2017 Inaugural Australian Training Council (ATC)/New Zealand Bar Association Appellate Advocacy Workshop in Brisbane. As we hope to offer this course in New Zealand, I was sent to watch it in action.

reversed roles; if they had been the appellant in the morning, they became the respondent in the afternoon. This encouraged the advocates to analyse both sides of the argument. The appeals were heard on Saturday. Performances were recorded in-court and then reviewed privately with senior members of the faculty who gave suggestions for improvement. In the afternoon the participants again reversed roles and delivered the opposite argument to the one they had delivered in the morning.

Four New Zealand Judges attended – their Honours Justice William Young, Justice Harrison, Justice Brown and Justice Gilbert – along with Dr James Farmer QC and Course Director, Chris Gudsell QC. There were 24 participants, including five from New Zealand. The coach to participant ratio was 1:2, which is the same as the NZBA Mastering Advocacy Courses. The coaches were Silks who had taught on this course or the ATC’s other workshop courses. The key word here is experienced.

One of the key aspects of this course is that it actively encourages collegiality and positive support. This enables learning to take place in a non-confrontational environment. Social interaction is encouraged and included spontaneous trips to the pub to watch the rugby or a few drinks and dinner with the faculty on the night before the workshop opened.

The Australian participants were all very senior and had either just applied or would be applying in the near future for Silk. The course was seen as being a critical part of that process for the Australians. It was a different situation for the New Zealand team, who while having significant litigation experience, were there to improve their appellate skills.

The opening was delivered by Queensland’s Court of Appeal President, Justice Walter Sofronoff. His Honour began by asking what it was that the “great leaders of the Bar” had in common? What was the quality that enabled them to be respected by other barristers and the judiciary alike? One of the key features he identified was that the best advocates would confront the hard issues in their case – those that were against them. The Court came to trust them. His Honour told the attendees that if they were candid, comprehensive, concise and courageous, the judges would listen to them.

The course, which ran from Friday morning until Sunday lunch time, was held at the Queen Elizabeth II Courts of Law Complex. The Courts were superb. As one of the NZ attendees said, we had a severe case of court envy. They were appointed with excelllent technology, and were very impressive. The Courts are regularly made available for this course in recognition of the importance of this kind of practical training.

There were other interesting and helpful sessions, but one in particular stands out. Lucy Cornell is an internationally renown voice coach, who taught in New Zealand for the NZBA last year. At this course, she spoke to the barristers about finding the spaces in what they had to say and how these spaces could become the point at which real communication takes place. Lucy then went on to coach the participants as they performed and her help was invaluable – an eye opener for many.

The workshop brief is based on a commercial litigation problem. Participants are required to fully prepare the matter and file submissions in advance. At least three days preparation is required. This of course was a minimum and many put a great deal more time in. The barristers prepared an application for leave which they delivered orally on the Friday. Although this process is not used a great deal in New Zealand, it proved to be useful for the participants for preparing for the appeals. In the afternoon they

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The workshop was intensive and all consuming but the New Zealand participants agreed that it was a not to be missed experience.

Arbitration Act 1996 A Further Opportunity For Refinement By John Walton Arbitrator, Adjudicator & Commercial Mediator *

In early April 2017, Paul Foster-Bell MP’s private members’ bill amending the Arbitration Act 1996 was drawn from the ballot, and on 12 April 2017, the Arbitration Amendment Bill 2017 received its first reading. It is now with the Electoral and Justice Select Committee for consideration.1 The Act was just amended in 2016; it is unusual for such highly regarded and effective legislation to receive such attention. This article considers the background to the amendments, and why the 2017 Bill is important. The 1996 Act In 1991, the Law Commission recommended adopting the 1985 UNCITRAL Model Law on International Commercial Arbitration for both domestic and international arbitrations. It was not until Peter Hilt, an MP and AMINZ member, managed to have his private member’s bill drawn from the ballot that the Arbitration Bill was introduced into the House. That bill was eventually passed into law as the Arbitration Act 1996. In addition to providing a long overdue reform to the 1908 legislation, largely inherited from the UK, the new Act brought our legislation into line with the Model Law, except for a number of critical respects: • • • •

The Act has been seen to work very well, and for their part, the courts in NZ have been supportive of Act, and arbitration, more generally. There have, however, been a number of exceptions. In the heavily criticised6 case of Casata Ltd v General Distributors Ltd,7 the Supreme Court held that arbitrators have a duty to make an award of costs, notwithstanding that neither party had claimed or made submissions on the point; a case hard to reconcile with the express wording of clause 6(1)(b) of the Second Schedule.8 The case of Zurich Australian Insurance Ltd v Cognition Education,9 concerning the application of the summary judgment wording at the end of article 8(1), produced a result at odds with the express wording of the Act and with the UK case law on a similar provision. This provision was lifted from a previous version of the UK’s Arbitration Act and inserted into our 1996, ironically, a year in which the UK repealed the provision. The caselaw in the UK had held that the provision was the reverse side of the coin from the normal summary judgment test of there being no tenable defence to the claim. That said, the decision of the Supreme Court, given by Arnold J, was exemplary in its support for arbitration, the finding that: “The added words act so as to filter out cases where the defendant is obviously simply playing for time — the bald assertion of a dispute is not enough to justify the granting of a stay where it is immediately demonstrable that there is, in reality, no dispute.”10

related court proceedings to be held in public, save in exceptional circumstances;2 summary judgment where “there is not in fact any dispute between the parties”;3 quick draw procedure for appointment of the arbitral tribunal;4 and appeals on questions of law.5 Finally, in Carr v Gallaway Cook Allan,11 the Supreme Court engaged in an extensive and

Submissions to the Select Committee closed on 22 June 2017. Section 14F. 3 Article 8(1) of the Frist Schedule. 4 Clause 1 of the Second Schedule. 5 Clause 5 of the Second Schedule. 6 See Williams and Kawharu LexisNexis 2011 (First Edition) at para 16.5.

2005] NZSC 43 Clause 6(1)(b) provides that in the absence of an award as to costs, then costs are to lie where they fall. 9 [2014] NZSC 188. 10 See para [39] of the judgment. 11 [2014] NZSC 75

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technical consideration of severability and effect of the invalidity of the agreement to arbitrate, with the majority coming to the view that the arbitral award had to be set aside. In the context where the parties agreed (on advice from their respective lawyers) to refer their dispute to arbitration and actively participated in it, and where enforcement was resisted on grounds only raised on appeal, the Supreme Court’s technical decision on the agreement to arbitrate has also caused a number of difficulties. While these decisions could be said to be supportive of arbitration, it would be a stretch to say that two of them further the purposes of arbitration generally, focusing as they do, very narrowly on technical arguments in isolation of the overall purpose of limiting judicial review and facilitating recognition and enforcement.

Removal of the High Court as the default appointing body in terms of article 11 of the First Schedule; AMINZ was nominated as the appointing body by the Associate Minister of Justice, Hon Mark Mitchell, on 2 March 2017.

(2) Recognition of emergency arbitrators, appointed for the provision of interim measures and preliminary orders and the recognition of the emergency arbitrator’s awards. The first amendment acknowledged that arbitral institutions are best placed to make appointments where the parties cannot agree. To that end, AMINZ has adopted an appointment process whereby the President or Executive Director is to consult with a panel of experienced and expert practitioners on the most appropriate appointments. This procedure has a number of benefits – it ensures that appointments are robust and made on an informed basis; appointments are made at appropriate levels, thereby bringing on new practitioners, rather than favouring a select few; and the process gives effect to the Institute’s diversity policies. 12 This issue, and the retention of the “quick draw” procedure in clause 1, have been the subject a recent article in LawTalk by Jack Wass, barrister at Stout Street Chambers in Wellington. Mr Wass has made submissions to the Select Committee on the point, supported by AMINZ.

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The first is that the new article 11(7) retains the ability to apply to the High Court for appointment where (a) AMINZ has not made the appointment within 30 days of receiving a request, or (b) “a dispute arises in respect of the appointment process”. While AMINZ has no difficulty making an appointment within 30 days, the second circumstance does little but provide an opportunity for further challenge and delay.12 The second difficulty arises in respect default appointments under article 11 of the First Schedule and clause 1 of the Second Schedule.

2016 Amendments The Arbitration Amendment Act 2016 brought in two substantial amendments: (1)

Substituting AMINZ for the High Court has, however, had a number of unintended consequences.

Article 11(3) – (6) sets out a default procedure for appointment. In general terms, if the parties fail to act as required in their agreement or if they are unable to agree, then the appointment is to be made by AMINZ having due regard to the qualifications required and any other consideration “likely to secure an independent and impartial arbitrator.” As it stands, when read with the AMINZ appointments policy, no further legislative provision would be required. The Second Schedule,13 however, includes a further procedure in clause 1, to which the parties are deemed to have agreed. Unlike article 11, clause 1(4) provides that where there is default under the appointments procedure, or the parties are unable to agree, a party may issue a notice specifying “the details of that person’s default” and proposing a person to fill the vacant arbitrator’s position “if that default is not remedied” within a period of not less than 7 days. In practical terms, this has provided a quick draw procedure under which a party alleges a failure to agree, and forces their appointment on the other party through a default notice. The interaction of article 11 and clause 1 was considered by Hansen J in the case of Hitex Plastering Ltd v Santa Barbara Homes Ltd14; at paragraph [29], his Honour noted: "A party or an arbitrator will not be able to invoke subcl (4)(b) unless there has been a genuine attempt to reach agreement. 13 For domestic arbitrations, the Second Schedule contains default provisions which are subject to agreement – they are “opt-out” provisions; for international arbitrations, the provisions are “opt-in”. 14 [2002] 3 NZLR 695

Anyone who peremptorily issues a notice of default without making a reasonable attempt to resolve differences will risk a successful challenge to any appointment which ensues." More recently, this issue was considered in the case of Body Corporate 200012 v Naylor Love Construction Limited.15 In his minute recording the agreement of the parties, Muir J commented that he was not satisfied that there was “default” in terms of clause 1(4) which would enable a notice to be issued, notwithstanding that the parties had failed to reach agreement. It may be an appropriate answer to the unhappy drafting of clause 1(4), to do away with clause 1 altogether.16 Senior Courts (High Court Commercial Panel) Order 2017 With effect from 1 September 2017, the Chief High Court Judge established a specialist judicial commercial panel of the High Court, to deal with commercial disputes and applications under the Arbitration Act 1996 where the sums at issue are not less than $2 million. This is a welcome development. Arbitration Amendment Bill 2017 The new bill proposes four further amendments: (1) recognise the arbitration of trust disputes; (2) provide for a rebuttable presumption of confidentiality of court proceedings related to arbitration; (3) rectify the technical issues raised in Carr v Gallaway; and (4) remove the opportunity to resist enforcement of arbitral awards on jurisdictional grounds, raised in the Singapore case of PT First Media v Astro. Trust arbitration The arbitration of trust disputes (typically between settlors, beneficiaries and trustees) is problematic, primarily due to the conflict between enforcement and the protection of the rights of under-aged or unascertained beneficiaries. Yet there is strong demand for reform in this area internationally,17 and it is logical that NZ, with the popularity of family trusts, should follow suit. CIV-2017-404-247, Auckland High Court, 26 April 2017, Muir J A position supported by AMINZ in its submissions on the bill – see fn 12 above. 17 See S. Strong and T. Molloy Arbitration of Trust Disputes: Issues in National and International Law (Oxford University Press, Oxford 2016); and T. Wusterman “Consent and Trust Arbitration”, chapter 6 in E. Geisinger and E. Tribaldo-de Mestral Sports Arbitration: A Coach for Other Players ASA Special Series No. 412, 2015. 15 16

The proposed amendment validates arbitration clauses in trust deeds.18 In doing so it recognises the legitimate reasons why settlors include them, for example party autonomy in the selection of specialist arbitrators and in setting the arbitral procedure; privacy for what are often sensitive family disputes; and efficiency.19 There is also the pragmatic realisation that there are deeds that have these clauses and it is better if uncertainty is removed. What it does not do is undermine the rights of unborn/minor beneficiaries. The bill provides for arbitrators to appoint counsel to represent their interests in proceedings and only if appointed will the arbitral award be binding on them. Confidentiality Any discussion of confidentiality in relation to arbitration can be a sensitive issue; it was certainly a touchpaper issue in relation to discussions over investor-state-disputesettlement under the TPPA. This is an issue where the Act is out of step with other Model Law jurisdictions. When the 2007 amendments were introduced, the Law Commission was firm in its view that following the Model Law approach would deprive the courts and, more widely, the legal community of important case law in relation to arbitration. Those submissions resulted in section 14F, providing for related court proceedings to be in public, while retaining the privacy of arbitral proceedings in sections 14A and 14B. The difficulty with much of the discussion of confidentiality of arbitral proceedings is that it is often subverted by suggestions that something underhand is going on, there is “private justice” and the perception that the public has an interest in the private affairs of others.20 Such disputes (particularly in relation to trusts) often arise at a time of emotional vulnerability when close family members or trusted friends have fallen out when they also are coping with the loss of a loved one. To enable those disputes to be dealt with in private is understandable; to have legal issues arising from that private process dealt with in public is less so. The amendments proposed in the bill tread a fine line between the conflicting interests of the 18 Subsequent submissions have suggested that the clause should extend to ad hoc arbitrations, i.e, situations where the agreement to arbitrate is made subsequent to the trust being settled, and after a dispute has arisen. AMINZ has supported this amendment. 19 It would also answer some of the criticism levelled by Dr Molloy QC at the courts over their decisions in trust disputes in his new book – see fn 17 above. 20 See the discussion of the first reading of the bill https://www.parliament.nz/ en/pb/hansard-debates/rhr/combined/HansDeb_20170412_20170412_42

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parties’ expectation of privacy and the public interest in seeing the legal reasoning applied by judges. By establishing a rebuttable presumption of confidentiality, the proposed amendments give the judge the discretion to publish the judgment, with private details, including the names of the parties, redacted. This amendment also brings the NZ Act into line with similar provisions in Singapore and Hong Kong; jurisdictions also offering arbitral services in the region. Carr v Gallaway Cook Allan21 and PT First Media (Lippo) v Astro22 Both these cases relate to challenges to the enforcement of arbitral awards which, on their face, appeared to be beyond reproach. In the first, Carr v Gallaway Cook Allan, the parties had agreed to a right to appeal not only on questions of law, but also on questions of fact; something which is expressly prohibited in clause 5(10) of the Second Schedule. While there are good grounds for accepting that, as a matter of contract, the parties specifically agreed to appeals on fact and it was arguably core to their agreement, the fault was with the agreement to arbitrate, rather than the arbitration itself or the result (though the unsuccessful party would probably agree to differ). This raises an interesting issue beyond the consideration of the majority. The structure of our Act is such that the Model Law provisions are largely encapsulated in the First Schedule, and provisions of domestic application (opt-in for international arbitration) are in the Second Schedule. The prohibition against appeals on questions of law was included as a new paragraph (10) to clause 5 of the Second Schedule in the 2007 amendments. There was logic in adding the paragraph to the Second Schedule as appeals on questions of law are a New Zealand departure from the Model Law. While clause (10) prohibits appeals on questions of fact, it is not a provision which is open to agreement to the contrary; rather it is a condition for allowing appeals at all, which the parties cannot contract out of. Article 34 of the Model Law, on which article 34 of the First Schedule to our Act is based, provides in article 34(2)(a)(i) that an award may be set aside if the agreement to arbitrate was not valid under the applicable law. In this case, the agreement to allow appeals on questions 21 22

of fact was fatal to the enforceability of the award, not because it could not be severed, but because it was central to the agreement. There is, however, a potential saving in article 34(1)(a) (iv) which provides that the award would not be set aside where the arbitral procedure departed from the agreement to arbitrate where “such agreement was in conflict with a provision of this Law from which the parties cannot derogate.” In other words, the provision excluding a right of appeals on questions of fact was one which the parties could not derogate from and therefore that provision in the agreement would not invalidate the award, provided the tribunal did not comply with that part of the agreement. This is the point taken by Arnold J in his dissenting judgment. The problem with this argument is that, while the Model Law refers to derogating from “this Law”, when the provision was carried over into article 34(1)(a)(iv) of our legislation, this Law became “this Schedule”. As the prohibition in clause 5(10) is in the Second Schedule, strictly speaking the saving didn’t apply. The amendments proposed in the Bill include two very simple, but subtle changes to article 34 – the first providing that the parties’ agreement to refer their dispute to arbitration must suffer from invalidity (rather than the defined term “agreement to arbitrate”) and changing the reference to “this Schedule” in article 34(1)(a)(iv) to “this Act” thereby capturing failures to comply with the obligatory provisions of the Act itself and the First and Second Schedules. The second case, Lippo v Astro similarly concerned a complex arbitration which was challenged only on enforcement, rather than

Ibid fn 11. [2013] SGCA 57

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during the course of the arbitration itself. In a decision which makes for difficult reading, Chief Justice Menon came to the conclusion that failure to challenge jurisdiction before the arbitrator was a passive position, whereas challenging enforcement was an active position, which the respondent was entitled to do, notwithstanding the fact that the argument had not been raised before the arbitrator. Needless to say, the decision has received considerable criticism, and has not been followed in other jurisdictions; notably Hong Kong where Astro was able to have the award enforced against Lippo. The amendments proposed in the Bill reinforce the requirement for all challenges to be raised during the arbitral proceedings. Conclusion In adopting the Model Law, it has to be acknowledged that Parliament gave primacy to the purposes of the Act – to facilitate and promote arbitration and the recognition and enforcement of awards. The amendments proposed are consistent with those purposes and they recognise that when the parties agree to have their disputes settled in arbitration, they are doing to with limited

intervention from the courts. Over the last few years, AMINZ has developed an appointments process; it has promulgated an emergency arbitrator protocol; it has generated arbitration rules, for use in both domestic and international arbitration; it has adopted rules and guidelines for awarding costs in arbitration; and it has established the AMINZ Arbitration Appeals Tribunal. Parliament has also recognised AMINZ central role in arbitration by transferring the default appointment role to it from the High Court, and establishing the new specialist commercial list. It is important also not to forget that the primary appeal of arbitration is party autonomy; this includes having disputes determined in private with minimal court intervention. Increasingly, parties have embraced this approach by removing the right to appeal and providing for indemnity costs, by default. Hopefully the 2017 Bill will pass, regardless of the outcome on 23 September! * John Walton is a highly experienced Arbitrator, Adjudicator & Commercial Mediator. He is President of the Arbitrators’ and Mediators’ Institute of New Zealand. John practises at Bankside Chambers, Auckland

Clifton Chambers and Thomas More Chambers have joined forces in Wellington Clifton Chambers brings together experienced barristers with specialist skills in diverse areas of law and in mediation

PETER CASTLE commercial barrister

ANDREW IRWIN barrister

PAUL RADICH

GREG ARTHUR barrister

GEOFF SHARP commercial mediation

CRAIG LINKHORN barrister

DAVID LAURENSON

JANE MEARES commercial and public law

KAREN RADICH employment law

ASHER EMANUEL junior to clifton chambers

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Update on Animal Welfare Sentencing Lessons from Erickson Cassandra Kenworthy*

In November 2015, a secretly recorded video was released to the New Zealand media. The video had been recorded by the activist group, Farmwatch, and showed a worker at a pet food factory mistreating a number of bobby calves. The video sparked public outrage and lead to the prosecution of Noel Erickson, a casually employed slaughterman at the factory. Erickson was charged by the Ministry for Primary Industries in relation to the ill-treatment of 115 bobby calves prior to their slaughter. The Court of Appeal recently released its judgment after Erickson appealed his sentence.1 The judgment includes analysis of the statutory animal welfare regime and guidance for sentencing under the Animal Welfare Act 1999. Background to the Court of Appeal decision MPI laid 10 charges against Erickson. The most serious of these were two charges under s 28(1) 1

(d) of the Act for wilfully ill-treating an animal with the result that it is seriously injured or impaired. These charges related to the treatment of two calves. Erickson was caught on camera picking up a calf and deliberately driving it head first down onto a concrete floor. The second charge related to a different calf, which he pushkicked with such force it fell on its front limbs, before he kicked it hard in the abdomen and dragged it across the ground. Secondary charges were laid under s 28A(1)(d) for the reckless ill-treatment of two groups of calves, one which he swung by their limbs over a gate, causing them to land on a concrete floor from a significant height, and the others who he dragged under a gate and kicked in the abdomen. Representative charges were brought under s 29(a) for ill-treatment of 95 calves through various actions, under s 12(a) for failing to ensure the physical health and behavioural needs of the calves were met by using blunt force trauma in slaughtering 8 calves, and section 12(c) for killing a calf in a manner that caused it to suffer unreasonable or unnecessary pain or distress.

Erickson v Ministry for Primary Industries [2017] NZCA 271.

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In the District Court, Judge Burnett took a starting point of three years’ imprisonment, which was reduced due to mitigating factors, including Erickson’s inadequate training, significant remorse and an early guilty plea. The final sentence was “approximately 22 months” which was converted to a sentence of 10 months’ home detention and 200 hours community work.2 The sentence was appealed by MPI on the ground that it was manifestly inadequate. In the High Court, Courtney J took a global approach and fixed a starting point for all offending of three years and nine months’ imprisonment, then discounted that by three months for Erickson’s inadequate training and supervision. She then discounted that sentence by five per cent for the remorse he displayed, and 25 per cent for his early guilty plea. Erickson was sentenced to two years and six months’ imprisonment.1 Erickson appealed to the Court of Appeal on the basis that the sentence was manifestly excessive due to Courtney J taking too high a starting point and failing to consider home detention. Leave to appeal was not opposed on the basis that it was accepted that Courtney J erred in taking a global sentencing approach despite the various offences carrying different maximum sentences, and the fact the case was seen as providing an opportunity for the Court of Appeal to issue guidance on sentencing for animal welfare offences. Previous case law The Court of Appeal cited a number of previous cases under the Animal Welfare Act in its judgment.

three representative charges were laid under s 28.4 Erasmus was the owner of a dairy herd of 135 cows. 115 had suffered broken tails and many had been hit forcefully with a heavy steel bar while in the confined space of a milking shed. Of the injured animals, 27 had to be put down. A starting point of 4 years’ imprisonment was taken by Priestley J when sentencing Erasmus, and aggravating factors were the number of animals harmed, the fact the offending stretched over a number of weeks and the level of suffering inflicted on the animals. In a related case, Erasmus’ farm manager was charged in Ministry of Primary Industries v Whitelock.5 From a total of 1,100 cows, 152 cows and 57 heifers had broken tails. It was not clear how many of the broken tails Mr Whitelock was personally responsible for, as staff under his management had also caused many to be broken. Two of the affected cows had to be euthanised. Mr Whitelock had also shot a cow in the leg who was due to be euthanised and encouraged another person to do the same. A starting point for sentencing of four and half years’ imprisonment was adopted, with aggravating features of the offending included pre-meditation, the use of a weapon, offending being on a significant scale and breach of trust. Ministry for Primary Industries v Smith also involved dairy cows and tail breaking.6 The defendant was a farm hand who pleaded guilty to a charge of wilfully ill-treating 154 cows. The starting point was two and a half years’ imprisonment in that case, with aggravating factors being the deliberately cruelty inflicted on the animals and the seriousness of the injuries caused.

In Godsiff v R, the defendant was sentenced for killing 23 wild seals, 8 of which were pups.3 Godsiff was convicted of wilful ill-treatment of the animals and was eventually sentenced to 8 months’ home detention, with Mallon J applying a starting point of three years’ imprisonment for sentencing. In that case, aggravating features of the offending included the scale of the offending, the fact female seals were killed who were nurturing infants at the time, and the absence of any element of provocation by the animals. In Ministry for Primary Industries v Erasmus, Ministry for Primary Industries v Erickson [2016] NZHC 2635. Godsiff v R HC Blenheim CRI 2011-406-18, 22 November 2011. 4 Ministry for Primary Industries v Erasmus [2013] NZHC 281, [2013] NZAR 311.

Ministry for Primary Industries v Whitelock [2015] NZDC 20263. Ministry for Primary Industries v Smith DC Ashburton CRI 2013-003-388, 14 October 2013.

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The legislative scheme Animal welfare law in New Zealand is primarily regulated under the Animal Welfare Act 1999. The long title of the Act states its purposes, including:

The ill-treatment offences are the most serious of the offences in the Act and carry the most significant penalties.

Section 12 of the Act provides strict liability offences for breaching sections 10 and 11. “(i) to recognise that animals are sentient: Section 10 requires every owner, or person in charge, of an animal to ensure that the physical, (ia) to require owners of animals, and persons health and behavioural needs of the animal in charge of animals, to attend properly to are met in a manner that is in accordance with the welfare of those animals: both good practice and scientific knowledge. Section 11 requires an owner or person in charge (ii) to specify conduct that is or is not of an animal that is ill or injured to ensure that permissible in relation to any animal or the animal receives treatment that alleviates class of animals: any unreasonable or unnecessary pain or distress being suffered by the animal. Section ... 25 provides that the penalty for offences under s 12 is up to 12 months’ imprisonment and/or fines (v) to provide for the development and issue of up to $50,000 for a person, or $250,000 for a of codes of welfare and the approval of body corporate. codes of ethical conduct.”

The Act creates a number of offences in relation to the ill-treatment of animals. “Ill-treat” is defined in s 2(1) as “causing the animal to suffer, by any act or omission, pain or distress that in its kind or degree, or in its object, or in the circumstances in which it is inflicted, is unreasonable or unnecessary”. Therefore, causing animals pain is not an offence under the Act. Only actions that unreasonably or unnecessarily inflict harm or distress on an animal is ill-treatment. Sections 28 and 28A create offences for the illtreatment of animals. Section 28 provides that a person who wilfully ill-treats an animal, with the result that the animal is permanently disabled, or dies, or the pain or distress caused to the animal is so great that it is necessary to destroy the animal in order to end its suffering, or the animal is seriously injured or impaired, is liable to imprisonment for a term of up to 5 years and/ or a fine of $100,000. A body corporate would be liable for a fine of up to $500,000.

Sentencing guidance The Court of Appeal in its Erickson decision provides organising principles for sentencing of ss 28 and 28A offences. The Court expressly did not propose sentencing bands for animal welfare offences (as it has in the past in relation to criminal offences). The Court held that the correct approach in sentencing under ss 28 and 28A was three pronged. Courts should take into account primary aggravating considerations, then secondary aggravating considerations, before considering any mitigating factors. The Court helpfully set out what would be considerations under each of those categories. Primary aggravating factors are:

Section 28A provides for the lesser offence of reckless ill-treatment of animals. This was a new provision introduced in a 2010 Amendment Act. The provision was legislated to recognise the difficulty often experienced by prosecutors in proving intent under s 28. The provision is identical to s 28, except for the fact the illtreatment of the animal is reckless rather than wilful. Penalties under s 28A are up to 3 years’ imprisonment and/or a fine of up to $75,000 for an individual or $350,000 for a body corporate.

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•

causing of significant pain or distress to the animal (assessed by how acute or extensive the pain was, and how extended the duration of the pain was);

•

using extreme violence (assessed by the nature of the actions taken rather than their effect, which is assessed under category (a));

•

premeditation and planning to cause significant pain or distress, particularly of a sadistic nature;

•

repetitive offending (including the number of victim animals). The Court noted that

sentencing is an evaluative exercise in which the totality of offending is considered in conjunction with the objective seriousness of the offending and the offender’s personal culpability. Sentencing should not be reduced to a mathematical exercise depending upon how many animals were affected);

•

offender taking a leading role in the offending. Secondary participation in offending may diminish the culpability of the offender and reduce the gravity of the offending for which they are being prosecuted for.

Secondary aggravating factors include: •

the means of commission of the offence to the extent they enlarge the fear experienced by the victim animal. Examples of this would be the use of weapons, attacking the animal’s head, or the involvement of multiple offenders;

more significant pain when abused because of its size compared to a larger animal. Secondly, the Court explicitly did not follow the United Kingdom’s Sentencing Guidelines to the extent that the UK treats offending that occurs in a commercial context as an aggravating factor in its own right. The Court did note that a commercial setting may be probative of culpability, because standards are imposed on industries in codes of welfare. However, that does not mean that an animal welfare offence against a farm animal is any worse than one against a companion animal. The Court did accept that if the offender profited from adopting techniques that amounted to ill-treatment, that would be a secondary aggravating consideration. Mitigating factors will often be the reversal of aggravating factors. The Court identified two other mitigating factors: • impulsive or reactive behaviour where there is no sadistic intent, or perhaps a degree of provocation or a poor response being adopted to an unexpected situation; and

• abuse of a position of trust (such as the offender having managerial responsibility); and • the impact on third parties (such as a member of the public witnessing the offending). The Court made two interesting policy decisions in listing the above aggravating factors. Firstly, the Court held that the vulnerability of the animal victim is not a distinguishing consideration that would be treated as an aggravating factor. This is because the “vulnerability of a victim animal may be taken as granted” and this is the premise on which all animal cruelty sentencing proceeds. At first glance, this statement of law appears counter-intuitive. Various animals are inherently more or less vulnerable depending on their situation and nature. It is possible that the Court was saying that a certain type of animal (i.e. a bobby calf ) should not be treated as inherently more vulnerable than a different type of animal (such as a fully grown bull). However, the circumstances in which offending occurs may be aggravating factor in themselves, and be related to the vulnerability of the animals affected. An animal who is vulnerable due to being in a confined space may suffer more distress than an animal capable of defending itself from abuse, or, a smaller, more vulnerable animal may suffer

•

a degree of mental disturbance short of insanity. The Court accepted that mental health could be relevant to the degree of culpability of an offender.

Finally, the Court noted the fact that an animal faced imminent slaughter does not constitute a mitigating factor. Community expectations are that these animals should be treated with respect and in a way that minimises pain and distress. Application to Erickson The Court considered that the following aggravating factors were relevant to the sentencing of Erickson:

The causing of significant pain and/or distress to the calves, and in particular the fact that two had to be euthanised. A further 9 calves would have suffered serious and prolonged shock, trauma, pain and suffering; and

The repetitive nature of the offending. The Court noted that only two calves were the subject of the s 28 charges, and seven calves were the subject of the s 28A

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charges. The primary offending was not as extensive or repetitive as that in the Erasmus case.

The Court held that to a significant degree, Mr Erickson’s offending was attributable to a lack of direction and appropriate equipment, was not sadistic, did not appear to be premeditated, and “while nasty and unquestionably criminal in nature, was not extreme.” The Court held that the starting point for sentencing was no more than two years and six months’ imprisonment on each charge under s 28. This was consistent with the fact that the s 28 offending of Erickson was significantly less serious and extensive compared to Erasmus and Godsiff (who had starting points of four and three years respectively). For the s 28A charges, a sentence of eighteen months’ imprisonment was adopted, and the charges under ss 12 and 29 had a starting point of eight months’ imprisonment. All sentences were to be served concurrently. An uplift of nine months’ imprisonment was taken in recognition of the totality of the offending. 7

Erickson v Ministry for Primary Industries [2017] NZCA 312.

The Court adopted the discounts applied by Courtney J in the High Court, resulting in a final sentence of two years’ imprisonment. The Court has since granted leave for an application to be made to the District Court to substitute a sentence of home detention.7 More recent developments in animal welfare law In 2015, the Animal Welfare Act was amended to allow MPI to create regulations in relation to certain animal welfare matters. As a result, a number of regulations were created to ensure the welfare of calves, an animal group that is considered particularly vulnerable. The last of the regulations in the Animal Welfare (Calves) Regulations 2016 came into force on 1 August 2017. An individual who contravenes the regulations is liable for spot fines. These regulations form part of a wider regulatory framework covering a diverse range of animal welfare issues including pig crating, dog tail docking, rodeo and live exports. A final set of regulations relating to surgical and painful procedures on animals are expected to be released for consultation in 2018. * Cassandra Kenworthy is a barrister at Barristers. Comm chambers, and is Vice-President of the New Zealand Animal Law Association.

New Members Mr Nicholas (Nick) Chisnall

AUCKLAND

Mr William (Will) McKenzie

AUCKLAND

Ms Philippa (Pip) Cobcroft

AUCKLAND

Mr Ken Ng

AUCKLAND

Mr Graeme Colgan

AUCKLAND

Mr Adrian Stuart Olney

WELLINGTON

Mr John Delaney

TAURANGA

Ms Julia Mary Robertson

WELLINGTON

Ms Krystle Gardner

AUCKLAND

Mr Alexander Shinkarenko

Ms Emma Gibbs

AUCKLAND

Ms Esther Watt

Mr Grant Illingworth QC

AUCKLAND

Mr Edward (Ted) Werry

Ms Merran Keil

AUCKLAND

Mr Anselm Williams

Mr Benjamin (Ben) Keith

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WELLINGTON

AUCKLAND WELLINGTON AUCKLAND CHRISTCHURCH

In-House Counsel and the Bar in the Susskind World By Helen Mackay

“The end of the professional era is characterised by four trends: the move from bespoke service; the bypassing of traditional gatekeepers, a shift from a reactive to a proactive approach to professional work; and the more-for-less challenge.” - Richard Susskind ‘The Future of the Professions’ The opportunities and challenges for barristers in being instructed directly by in-house counsel have elements of each of these four trends identified by Professor Susskind. Large corporates and other users of legal services are increasingly sophisticated consumers of professional services as they seek to extract maximum value from their external providers.

his field and is the person who keeps abreast of changes in legislation that impact Nokia." Ms Wyllie says she relies on him to support her and the rest of the legal team in their delivery of legal services to the business. The fixed arrangement sees Mr Abbott travel from outside Wellington to the Nokia head office three days per week. He does not engage directly with the business but works through the legal team and provides integral support. For example, Ms Wyllie can be immersed in a complex negotiation between Nokia and a customer or supplier and "I can say to him 'this is what we are trying to achieve can you write this specific clause’ and I can get on with negotiating."

As reported in the 2015 ACLA/ILANZ Benchmarking and Leading Practices report on the in-house profession, in-house legal teams across Australia and New Zealand spent an average of $1.4 million in their external legal spend. However, only 4% of that total external spend was direct briefing to barristers. In-house counsel make up 21% of the legal profession in New Zealand and 27% of the profession in Australia, so there is considerable scope for the total direct spend to increase.

Jane Meares has enjoyed a varied legal career as a partner at Bell Gully, in-house lawyer and head of legal at the Treasury and DIA and now as a commercial barrister. She is often involved in public sector reviews and enquiries where she is helping decision-makers to understand what happened. She says her knowledge of how the public sector works and her independent role help her in obtaining work directly from in-house clients. She seeks to understand the framework that the entity operates under as well as unpacking the legislation and the core purpose of the public sector entity.

Barristers have traditionally received their instructions from law firms even though inhouse counsel, being holders of practising certificates, are entitled to instruct them directly. So the question is, how can barristers position themselves to increase their in-house counsel client base and share of direct legal spend? Katie Wyllie is the Director of Legal and Compliance, New Zealand and Pacific Islands, for Nokia. The company had an existing arrangement with commercial barrister Chris Abbott when Ms Wyllie joined eight years ago and she says this relationship still works well. She sees Mr Abbott as forming part of the Nokia in-house legal team as "our only formal advisor and helpline. He is a black letter law expert in

Ms Meares has developed strong relationships with in-house counsel from her time in private practice and as a public sector in-house counsel. She has also taken opportunities to enhance her profile where they have arisen e.g. she was invited to present a webinar on in-house legal professional privilege for ILANZ members last year. ILANZ is the In-house Lawyers Association of New Zealand, the section of the NZ Law Society that provides representative services for in-house lawyers. Some ILANZ events are member-only but its annual two-day and halfday conferences are open to all lawyers and are increasingly being attended by barristers.

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Ms Meares says "if barristers want more work from in-house counsel then they should seek to develop relationships and lift their own profile among that part of the profession. They need to get to know in-house lawyers and persuade them of the value proposition of getting specialist advice delivered quickly and effectively at competitive rates." "When professional work is decomposed, constituent tasks tend to be allocated to the least costly sources consistent with the quality and nature of the work involved." 1 Stephen Layburn is an Auckland-based commercial barrister specialising in corporate and financial services issues. Ms Meares cites Mr Layburn as an example of a barrister who has successfully developed a strong commercial profile. He says that being disciplined about the areas he focuses on has helped to build relationships with other lawyers. He says that he has been careful “not to claim expertise across the entire alphabet” and says that his experience is that it is better to “focus attention where you are most qualified and develop your own niche.” Mr Layburn is often instructed directly by inhouse counsel and says where they have a practising certificate, this can be seamless. He says that he is careful to triangulate between all parties and give a clear message that he is not competing with a client's existing legal provider. Instead, he seeks to work with internal and external lawyers. This might involve updating the client’s external law firm, setting out what he has done for the client and what issues have been covered. His advice for other barristers looking to develop their in-house client base is to focus on developing personal relationships and professional networks.

“Sending emails and texts is an automated version of writing letters, whereas social networking is an innovative technology … it gives rise to ways of communicating that were not possible in the past.” 2 Mr Layburn tries to keep the administration expense lean when dealing with in-house counsel as he knows their budgets are under constant pressure. Some firms he works with insist on opening a file and charging a file management fee for interfacing between inhouse counsel and the bar for risk management purposes but most do not. The ability to collaborate is also key as he may work with a range of providers on a project, including a barrister who has a litigation skillset or a distinct specialisation as part of a team approach. “Put bluntly, professionals tend not to like sharing what they know with other professionals.” 3

As someone who has a compelling website and seeks to comment regularly, Mr Layburn emphasises the importance of a virtual presence for barristers. He is often asked to describe his expertise or recent work and can simply provide his website address which contains a full profile of his experience. He runs his website through the user-friendly content management system Wordpress. In the last 18 months Mr Layburn has increasingly used LinkedIn to distribute his

commentaries to his connections. He says he has been at school functions where someone says they have read one of his pieces on LinkedIn in an area that interests them and this has led to some interesting conversations. The key is to be disciplined in “regularly creating thoughtful content and deliberately developing a large network of connections to make sure it gets read”. He says finding the time is a challenge when you are busy but he makes frequent notes on topics he has read or seen which might form the basis for a future article.

Mr Layburn sees the legal market as changing dramatically. An example he gives is where a general counsel is managing the creation of an AML/CFT compliance programme and uses a barrister for specialist advice. Increasingly, compliance providers can provide a complete turnkey package rather than just a piece of specialist advice so the area of compliance has huge opportunities for all legal providers but also increased competition. Sarah Gillies is General Counsel for New Zealand and Australia with CoreLogic, a multinational property information, analytics and services provider. Ms Gillies has not instructed a barrister recently, but her previous experience has involved instructing a barrister through a law firm as a "circuit breaker" when they were not making progress on an application with a regulatory body.

Susskind, R. and Susskind, D. The Future of the Professions: How Technology Will Transform the Work of Human Experts (OUP, Oxford, 2016) Ibid 3 Ibid 1 2

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She also manages the Australian legal team for CoreLogic and has questioned whether it is necessary to brief a barrister through an external firm, particularly on low-value matters where direct briefing was both allowed and could be more efficient. Ms Gillies says it is often difficult to gain insight into who practises in a particular specialty at the bar unless she has a personal connection or is referred by word of mouth. "In-house departments [can] be vastly more efficient in their deployment of the traditional combination of internal labour and external law firms … to ensure that work is undertaken, where appropriate, by less costly suppliers of legal services…" 4 Robert Buchanan is a sole practitioner and former in-house lawyer who authors the rules and ethics chapters of the ILANZ Essential Guide. His public law practice includes assisting in-house counsel to get the best value out of their external legal providers. He has been brought in to help where there has been tension in the relationship between in-house counsel and their external providers. He has reviewed a situation where a lack of coordination between in-house counsel and their internal client created a communication vacuum for an instructed barrister. The barrister was placed in 4 5

the uncomfortable position of having to make significant decisions about the conduct of the litigation which had strategic and cost impacts. The solution was for the organisation to establish an internal litigation management committee to manage the whole portfolio of litigation and to provide a structured forum for discussion of internal legal issues. Mr Buchanan’s advice to barristers in similar scenarios is to ensure your instructions are clear and that the in-house counsel as instructing solicitor is fully briefed at all times as the matter progresses. If you feel you are being asked to make significant decisions beyond your comfort level, “then the remedy is to pick up the phone to the in-house counsel (or general counsel where necessary) to ask for greater clarity.” " There is a new division of labour, and traditional professions sometimes struggle here because they are no longer in the driving seat." 5 * Helen Mackay is CEO and legal strategist at Juno, a new hybrid legal services firm that provides strategic consulting advice and seconded legal counsel for in-house teams. She has been an in-house lawyer for more than 20 years and is the former Executive Officer of ILANZ. Contact Helen at www.junolegal.com.

Ibid Ibid.

The Behaviour Gap - the Financial Distance Between Your Head and Your Heart By Laetitia Peterson*

As a financial planner, Carl Richards grew frustrated watching people he cared about make the same mistakes over and over with their money. They were letting emotion get in the way of making smart financial decisions. He named this phenomenon—the distance between what we should do and what we actually do— “the behaviour gap”. Using simple drawings to explain the gap, he found that once people understood it, they started doing much better.

Carl Richards is the creator of the weekly Sketch Guy column in the New York Times. The drawings you see in this article are his and he has graciously allowed me to use them to demonstrate some of the behaviour gaps lawyers encounter when making financial decisions. For the 20 years ending 31/12/15 the S&P 500 Index averaged 9.85% a year while the average equity fund investor earned a market return of only 5.19%. What created this huge gap between investment return and investor return? It’s the battle between the rational and emotional and it can manifest in many different forms…

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powerful a motivator as the possibility of making a gain of equal magnitude”. Essentially, loss aversion is the tendency for individuals to prefer avoiding losses rather than accruing gains. Many of the options we face in life are “mixed”; there is a risk of loss and an opportunity for gain, and we must decide whether to accept or reject the gamble. I asked all participants the following question to test for signs of emotional gap stemming from loss aversion. QUESTION: YOU HAVE TWO CHOICES:

You would expect lawyers to be rational thinkers, with critical thinking at the core of their legal occupations. However, on a personal level, lawyers are not immune to emotion and behavioural gaps in their decision-making. The issue here is that our decision-making faculties are like lawn bowls – affected by bias and not just one. Many factors can skew an otherwiserational decision.

OPTION 1 - A sure gain of $250,000 OPTION 2 - A 25% chance of gaining $1 million and a 75% chance of getting nothing Results showed that 79 per cent of respondents chose Option 1, and the remainder, Option 2. Our conclusion is that lawyers are less likely to take a risk to achieve an extra gain preferring to take the “bird in the hand” approach.

Overconfidence gap When I interviewed 65 New Zealand lawyers about their money habits, overconfidence was the first gap tested in the survey. Overconfidence is overestimating or exaggerating one’s ability to successfully perform a particular task. The survey indicated that 48 per cent of respondents were likely to be susceptible to overconfidence, since they professed to have greater degrees of control over their investments (either directly or via their financial advisers). Overconfidence was less symptomatic in the remainder, who claimed little or no control. Overconfidence can be one of the most detrimental gaps that an investor can exhibit, often due to underestimating downside risk, trading too frequently and/or trading in pursuit of the “next hot share”, and holding a nondiversified portfolio. Overconfident investors often do not believe that the assets they traditionally favoured will ever perform poorly. One banking and finance lawyer who specialised in dealing with problems arising from overconfidence, said he was now more conservative when it came to investing. Loss aversion gap The loss aversion gap stems from the common rule of thumb that “psychologically, the possibility of a loss is on average twice as

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Risk aversion gap I anticipated that lawyers, like most other people, would prefer a certain gain or to take a risk to avoid a bigger loss so there were no real surprises in the survey results. I also wanted to explore how they perceived their attitudes towards risk. Logically, I had expected a “conservative” response to investing risk, as many had indicated exactly that. The responses below may surprise you. I asked them, “How do you feel about taking risks?” Very comfortable, somewhat comfortable, conservative or very conservative. Close to half, or 43 per cent, ranged from conservative to very conservative, while a majority of 57 per cent saw themselves as somewhat comfortable, through to very comfortable, with risk. It is difficult to reconcile these results with the loss aversion responses. Some found it difficult to limit their choice to only one option. One outlined his attitude to risk as “schizophrenic”. On the one hand, he had investments that were very conservative, but on the other hand, he had highly speculative business interests, such as high-risk ventures and start-ups. Another described himself as “a man of two extremes” with conservative investments (mainly in property) “safely tucked away”, but with a large number of lavish lifestyle assets.

Several others identified themselves as conservative, with investments in only one asset class, property. While acknowledging that this may not be a good financial strategy, they nonetheless considered the investments conservative. Such property holdings often don’t provide an income, as they are often lazy lifestyle assets, such as a family bach. Many also mentioned that most of their property investments were leveraged through debt, which is also not a very conservative strategy. Hindsight gap The hindsight gap is the tendency to see events that have already occurred as being more predictable than they were before they took place – the “I knew it all along!” impulse. The hindsight gap is difficult to measure because people are rarely aware that they are affected by it. I looked for clues to potential hindsight gap, through a question with two options relating to the natural reaction to the situation faced when an investment had failed. Under Option 1, they would generally not fault themselves. Under Option 2, they would want to investigate the situation and determine why the investment had gone wrong. 43 per cent chose Option 1, exhibiting symptoms of hindsight gap. A majority of 57 per cent chose Option 2, which does not hint at Hindsight Gap. The tendency of lawyers to want to analyse and understand the situation reflects their analytical approach and enquiring minds, as well as a desire to learn from the past to avoid repeating the same mistake in the future. Availability gap The availability gap is a rule of thumb that allows people to guess the probability of an outcome based on how that outcome appears in their lives. An issue mentioned regularly by lawyers in large law firms was their inability to invest in shares, due to insider-trading rules. Believing that, as advisers to many listed companies, they were exposed to insider-trading risk, they delegated management of their share portfolios to third parties. While this is prudent, such explanations showed an element of availability gap, as they seemed to infer that by advising some New Zealand listed companies, they were involved in the whole market and could not make any direct investment decisions themselves. Yet, when you do the sums, New Zealand shares

only represent 0.1% of the global market capitalisation. Familiarity gap Many New Zealand investors face the familiarity gap, since they tend to overweight their investments in the 50 stocks making up the NZX 50 Index, often only investing in the top segment. The recurring client-focused tendency of lawyers to want to support their clients’ businesses where possible is an example of the familiarity or availability gap. One lawyer in several governance roles felt a moral obligation to support the projects she was involved with at board level. She had therefore bought shares in the initial public offerings of those companies. It is very common for investors around the world to show a bias in their portfolios towards their home markets, overweighting companies and sectors close to home and with which they are familiar. One property lawyer invested solely in property for this reason. However, restricting investments to his area of competency also significantly limits diversification and creates concentration risk. He acknowledged the familiarity gap and the fact he had made “bogey” decisions, despite his professional expertise. Herd instinct gap Closely aligned with the familiarity and home gaps is the heuristic herd instinct gap. This mentality is characterised by a lack of individual decision-making or thoughtfulness, causing people to think and act the same way as most of those around them. Gravitating towards the same or similar investments as others is a pointer to this gap. The media is a common platform for the herd instinct gap. More than one lawyer acknowledged following newspaper columns and share tips. Another referred to the influence of “billionaire friends” in introducing him to high-risk ventures. He participated without realising the disproportionate effect such investments would have on his muchsmaller portfolio. No one has a crystal ball as to which investments will outperform at any given time. All we know is that in the long run, investors are rewarded for risk-taking – diversifying investments across different global asset classes maximises returns while minimising risk. This is the essence of diversification and “efficient” markets.

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know the enemy and know yourself, you need not fear the result of a hundred battles. If you know yourself but not the enemy, for every victory gained, you will also suffer a defeat. If you know neither the enemy nor yourself, you will succumb in every battle”. The behaviour gap taints rational money-making decisions which can have a negative impact on your financial wellbeing. In my next article, I will give you strategies to combat this, so you can move closer to being financially fighting fit.

The gap between fear and greed Investors often behave illogically based on emotions of fear and greed. They buy in high (herd instinct) and sell out low (loss aversion) letting emotion impel them to move at the wrong time. However, it's been academically proven that a disciplined approach delivers higher returns. It's boring, but it works. To quote Gene Fama, Noble Prize-winning economist, "Your money is like soap. The more you handle it, the less you'll have”. The battle of the gaps As Chinese military general, strategist and philosopher Sun Tzu is often quoted: “If you

* Laetitia Peterson is a personal wealth adviser and is married to competition barrister, Andrew Peterson. She has worked with companies such as Goldman Sachs and boutique funds management firm Liontamer, which she co-founded with Janine Starks. She is now the CEO and founder of The Private Office, helping successful lawyers achieve the financial goals important to them and their families. Legal Tender - Laetitia’s book explores the ideas of family stewardship, typical money behaviours, attitudes towards money, and lawyers’ views on wealth creation. It delves into the psychological effects of money and the impact of stress and financial worries, as well as the importance of personal resilience and creating a legacy worthy of a life well lived. Legal Tender will change the way you look at the value of your work as a lawyer.

Marketing: Cacophony or Focused? By Lynn de Winnaar*

Years ago, marketing was considered more aligned with the Arts than the commercial function it is today. Many brands were made famous simply by a catchy jingle. Nowadays businesses have many competitors using an array of tools and channels vying for the buyers’ attention. The marketing effort needs to be a multifaceted programme, rolled out strategically and designed to penetrate the clutter and ultimately win over the customer.

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Marketing cannot be handled on an ad hoc basis and a business should have a functional marketing plan in place every year, flowing down from the long term strategic plan of the business. It should include clear objectives, detailed strategies, required outcomes and success measures. Step one - branding Branding is the first step in setting up a marketing programme and will define what others think about a business or the service on offer. A brand creates perception, so it’s important to get it right from the outset. It includes assets like a logo, payoff line (a memorable phrase or tag that sums up your service), colour palette, etc. If a company intends engaging marketing agencies,

collaborating with other companies, or hiring marketing staff down the line, documented brand guidelines are essential. Contrary to popular belief, branding is not a simple exercise. The look adopted by a barrister needs to reflect the way they practise law. For example, consider whether the brand should communicate “industry maverick”, or “steadfast and accomplished”. A practice in modern chambers, utilising the latest technology and offering non-traditional billing options might do well with an uncluttered, crisp, and polished brand identity. No one can be all things to all people but a brand is a promise to the customer. Once settled on, it should be applied consistently to build strong brand equity, bearing in mind that a brand serves as a decision-making shortcut for indecisive buyers. Chambers, too, should think about their brand positioning and the role it plays in luring the most sought-after barristers. A marketing professional can guide you on how to differentiate your brand to create competitive advantage, while building a strong brand affiliation with the target market. Some market research will also align brand development with what motivates your clients (customers). Look for someone who will take the time to get to know your practice, who will understand your challenges and resources, and probably work to customise a bespoke solution (although they may already have some models in place that can be adapted to your practice). Step two – the tools The most common tools of the trade in legal marketing are email, website, online forms, social media, networking (events), conferences, online advertising, business listings, referrals, sponsorships and adverts in legal publications. Many of these can be enhanced by digital means, like Search Engine Optimisation (SEO improving your site’s ranking in search results), Search Engine Marketing (SEM - paying to appear in search results) and retargeting (advertising to customers that have visited your website). A content driven marketing strategy is a great

option for legal marketers. It offers value for customers, and develops a perception of thought leadership and expertise in the legal sector in which the lawyer practises. This is a powerful approach if executed correctly and can result in the lawyer being quickly perceived as a leading services provider in that area. Superior expertise can be a compelling reason to select a lawyer, even if his or her charges are not the lowest. Often small businesses procrastinate about having a website, especially if there isn’t an e-commerce requirement. The computer generation is less reliant on word of mouth and tends to research online before buying a service. A website is a must. It doesn’t need to be complex or expensive. It can be the most valuable marketing tool if it has all the right information, is user friendly and has been optimised for both mobile and SEO. Step three – the PR aspect Public Relations is a strategy that every business, irrespective of size should have in place. Put simply, PR can provide the best return on investment marketing wise, provided one has something of interest to say. Engaging a professional will stand any business in good stead. A good publicist will know exactly how to design a PR campaign that gets you noticed, in the news (and on the right channel), and talked about. Plus, you’ll be able to share all your great publicity through your own marketing channels. Step four – get social Speaking of channels, just how important is social media and should legal practitioners be bothered with it? This really depends on your marketing strategy. It’s a great way to entice visitors to a website that is being used for lead generation. It’s also a perfect platform on which to share all that good PR news that is being generated, a success timeline of sorts. The nature of legal practise is that it is based on expertise and skill. Social media is an effective way of demonstrating this. LinkedIn is generally recognised as the social network for professionals and offers a great blogging platform. If you don’t have a profile, get one. People will notice your absence from the network. Get help with setting

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to share detailed information and make a compelling argument. And prime time television is going to get a business known very quickly. It goes without saying that it takes bigger budgets to utilise these channels as part of the marketing mix. Or a very good publicist!

up the profile from a marketer and not an IT person. You need someone who can step back and assess what message is being sent to the market by the profile. Once your profile is set up, be sure to keep it relevant, up to date and professional. Display your talents and knowledge and avoid the temptation to share personal viewpoints on a business profile. It is worth mentioning that the algorithms in the social feeds are constantly being adjusted so that it is getting harder to have your message displayed to your audience. Social media advertising opens up a whole new world of opportunities in communicating to prospective clients in a subtle and non-intrusive way and is a cost effective option. Find marketing help Business owners seldom manage to focus on their core business as well as market it effectively. If there isn’t a dedicated person managing this function, i.e. a marketer on the team, you should consider engaging with specialists who can often set things up so that the business owner can maintain a plan with minimal effort. This really should be your first step, before you worry about the rest.

Businesses not able to invest in marketing resources still have a lot of cost-effective ways to speak directly to their target audiences. Trade magazines, event sponsorships, and conferences all present good opportunities, if selected well. The best platform of all of course is networking. Getting out there and promoting and selling one’s own brand and business at Meetups, industry get togethers, association events, and even in the online world, contributing on chat platforms, blogging useful info, or offering free advice relating to your expertise. And no business has ever ended up worse off for asking happy customers for referrals. One ring to rule them So, given this plethora of expertise do you need several marketers or one? Like all things, it can help to have a “go to person” - someone who understands the industry, its language and the realities of what is being suggested. Just as you wouldn’t suggest a client launching into court without legal help, you should be cautious about devising a marketing strategy without knowing what all the options might be.

A branding agency will be experienced in developing an effective brand identity for you. This usually happens at the outset, or formal brand guidelines should at least be formulated if never done before. A digital specialist could assist with building a website, (or refining a current one), incorporating SEO and setting up or advising on social media. Other services include optimising websites for mobile browsing, enhancing UX (user experience), setting up analytics, assisting in identifying keywords for blog articles, and advising on paid digital advertising, including AdWords. The beauty of digital marketing is in the ability to measure almost everything, including return on investment.

* Lynn de Winnaar is a Marketing Consultant who has previously worked in publishing including as the Segment and Solutions Marketing Manager at LexisNexis New Zealand. She can be contacted at lynndewinnaar@gmail.com.

The digital age has certainly turned the work of marketers on its head. But we can’t discount the value that traditional marketing and advertising still presents. The reach on drive time radio can be phenomenal for brands serving the larger market. The captive audience of a big circulation magazine or newspaper gives the opportunity

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How do you Select the Correct Limit of Indemnity? By Mark Rogers

Selecting the correct limit of indemnity for liability insurance can be difficult, particularly when it is your business and professional reputation at stake if things go wrong.

When reviewing your limit of indemnity there are a number of factors that should have a bearing on how much cover to buy:

Liability insurance differs from most other types of insurance in that there is no defined insurable interest. When you insure your car, house, boat or income, there is an actual distinct value that can be insured. When considering liability insurance, this can sometimes seem like a ‘best guess’ scenario. Over the past few years, we have seen the business environment in New Zealand become more litigious, with parties looking for someone else to blame when something goes wrong – sometimes it is simply the “last person standing” whose involvement may not even have impacted on the situation. This change in attitude, combined with greater access to information via the internet, has meant the insurance industry has seen claims against legal professionals increasing. When such claims have been successful, we have also started to see the amounts awarded by the courts increase. Even unsuccessful claims are becoming more and more expensive as it is not uncommon for costs to be unrecoverable, even when a claim is defended successfully on behalf of an insured. It would not necessarily be a good idea to rely on the minimum standards of indemnity as set by the Law Society. These have not been updated since 2008. But does the minimum limit requirement provide sufficient cover for you? What is the correct limit of indemnity for you if things go wrong? And how do you calculate it? The traditional answer of buying as much as you can afford may no longer be suitable. Since BFSL 2007 Ltd & Ors (in liq) v Steigrad [2013] NZSC 156 (“the Steigrad decision”) it has become market-standard to view limits of cover in two parts: indemnity - also sometimes referred to as loss or settlement; and defence costs.

• • • • • •

What claims have previously been made against you or your peers (that you know of), and how did these claims arise? This is also a question that you should ask your insurance broker. Most brokers and insurers have access to figures and trends that they can provide to their clients. But professional indemnity insurance is not the only answer. We would suggest you also review your risk mitigation policies and procedures to see how these may address the potential claim exposures. Who are your clients? The type of clients you represent and their socioeconomic background can help determine the likelihood of them making a claim against you. A ‘well-heeled’ client is more likely to pursue a claim and could potentially take it as far as the Supreme Court if they have the financial backing to do so. Do you provide general commercial litigation services? Claims from the commercial sector in most instances tend to have higher quantums for claims. It is not unusual for claims to be in the hundreds of thousands, or even millions of dollars. Do you undertake family law? Many legal professionals view this area of law as low risk. However, family law generally involves heightened emotions; with the result that people in these situations can be more likely to feel aggrieved and look for someone to blame if their case hasn’t gone their way. Do you undertake commercial or residential conveyancing or relationship property work? The value of property is currently at an all-time high. If something went wrong and a transaction fell through what would be the cost of the lost opportunity? Would your limit of indemnity cover the total value of the transaction? Have you previously increased your limit of indemnity for a specific contract or client? Professional

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Indemnity insurance is what we call a ‘claims made’ policy. This means it is the policy in force at the time a claim is made that responds, NOT the policy in place at the time of the incident. If you have previously increased your limit of indemnity for a specific contract or client it is advisable to retain this limit as a minimum. If you were to reduce it and a claim is made, you would then only have the lower level of cover to respond in that situation, and you may have to pay any difference in the claim's quantum out of your own pocket. • Do you have a Limitation of Liability clause in your terms of engagement? It is becoming the norm for other professionals such as accountants, IT service providers and project managers, and insurance brokers to include a limitation of liability in their terms of engagement. We usually see liability limited to a multiple of the fees earned for a specific transaction (or time period if multiple transactions are performed on behalf of the client), or the limit of their professional indemnity insurance. In recent years this has become more and more common for legal firms and legal professionals. We understand that this isn’t a ‘fix-all’ or indeed a replacement for insurance, but it can act as a limiting factor to a settlement. When calculating your defence costs, consideration should be given to the type of policy wording you hold.

that defence costs will be paid in addition to the limit of liability noted. When insurers issue this type of wording the defence costs are either capped at a dollar amount, or are equal to a percent of the limit of indemnity, dependent on the wording. 2. Ring Fenced Wording: Some insurers have adopted a more ring-fenced approach within their policy wordings, usually incorporating cover under different sections of the policy. In most cases, one section will represent loss/settlement, another will relate to defence costs, and a third will detail the terms and conditions that govern the entire policy. Generally under this policy structure it will be noted that the loss/settlement and defence costs sections are read as separate policies, and the limits of indemnity can be negotiated separately. 3. Standalone Defence Costs Policy Wordings: Some insurers believe neither costs in addition or ring fencing provide enough certainty and have adopted the approach that defence costs should be a totally separate policy that is purchased in addition to a professional indemnity policy. We have yet to see any of these types of policies tested in the courts, so at this stage it is very difficult to give general guidance on which is the best solution. We recommend that professionals have this discussion with their brokers to find the solution for their individual needs. The policy wording provided to the members of the NZBA is structured as per example two noted above and is split into sections. The policy comes with a standard defence costs limit of $500,000 in the aggregate, but with the option to increase this to either $1,000,000 or $2,000,000 in the aggregate.

Since the Steigrad decision, insurers in New Zealand have been forced to provide a solution to the possibility of section 9 of the Law Reform Act 1936 being used to freeze a defendant's limit of liability. This would mean that the insurance policy can only be used for the payment of loss or settlement if it is deemed that the claim settlement total will exceed the defendant’s limit of liability (a “Section 9 charge”). If a Section 9 charge is placed on an insurance policy then the defendant will have to pay all of the legal costs out of their own pocket.

This still leaves the question how do you know if this is enough? And what limit is correct for you? To determine your defence costs limit we recommend that you ask yourself:-

Generally there are three types of policy wording offered by insurers in response:1. Costs in Addition: Traditionally most policy wordings were on a ‘cost in addition’ basis. Costs in Addition means

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•

What is happening with court costs? As with most things court costs increase year-on-year, and a more complex case can run to weeks, months or even years. Having a clear understanding of what costs are associated with the defence of a claim is a good starting point for assessing the appropriateness of your defence costs limit.

• •

When will my claim make it to court? Some cases can take a number of years to make it to court. If you notify the claim today and the case appears in court in five or six years time, will the defence costs you choose now be sufficient to defend the claim if court costs continue to increase? What if you win and the decision is appealed? It is not uncommon for a case to be appealed to the Court of Appeal or even the Supreme Court. If this was the case would your defence costs limit cover your defence three times?

Ultimately the decision will rest with the individual who is purchasing the insurance and they should purchase a limit that provides them with peace of mind whilst remaining a financially viable option. Claims are undeniably on the increase but hugely significant losses continue to be rare. If you have any doubts, concerns or further questions you contact your broker for individual advice. * For more information or advice, please contact Mark Rogers, Client Executive – FINPRO Specialty New Zealand, Marsh Ltd on 64 9 928 3056 or email him at Mark.Rogers@marsh.com

Young Lawyers Mooting Competition By Dale Lester*

With Canterbury teams having won the Law Foundation Young Lawyers Mooting Competition for the last two years, in the absence of a national competition in 2017 the Canterbury Westland Branch of the New Zealand Law Society and the Bar Association combined to run a regional mooting competition for young lawyers.

Lawyers, Emily Simpson of Harmans Lawyers and Amy Kennerly and Elyse Middleton of Taylor Shaw.

Mr James Pullar of Taylor Shaw was the head co-ordinator and organiser of the competition, with Jonathan Eaton QC and Dale Lester assisting for the Bar Association. The competition involve a preliminary round, semi-final and final starting with eight teams. The competition was in a knockout format. Prior to the competition starting, Jonathan Eaton and Dale Lester ran a training session to encourage those who may have been considering mooting to get involved and to provide some hopefully helpful tips for the competition. The final was held at Christchurch High Court No 1 on 8 August 2017, with Their Honours Justice Nation and Judge Somerville sitting. Their Honours Judges Somerville and Neave heard the semi-finals. The four finalists were Olivia Jarvis of GCA

After a short retirement, Justice Nation and Judge Somerville returned to court to determine that Amy Kennerly and Elyse Middleton were the winners and they received the trophy. The NZLS Canterbury Westland Branch and the Bar Association are grateful to the many practitioners who acted as judges on the preliminary rounds and the Judges who gave their time. The “after match” function was sponsored by the New Zealand Bar Association. * Dale Lester is a Barrister at Canterbury Chambers and a member of the The winners with Jonathan NZBA Council Eaton QC

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Book Review - Collisions in the Digital Paradigm By Jacqui Thompson*

Scholarly achievement aside, Harvey has considerable insight into those interfaces where collisions occur between digital communications and traditional approaches. These include

Apparently there is a digital paradigm. If you google the term, it comes up disturbingly frequently. I say “disturbingly“ because until now it is not something I gave much thought to. But having been given David Harvey’s new book to review1, I am struck by an aphorism he quotes; “we become what we behold. We shape our tools and thereafter our tools shape us.”2

• The internet – how to control a distributed technology; • The concept of digital property – whether there is property right in digital files; • Dealing with evidence – e-discovery and e-disclosure, including the use of presentational techniques and technology as the court; • Social media and the challenges of collaborative, sharing and distributed technologies; and • Reputational harms.

The digital paradigm is a revolutionary change in our fundamental assumptions about the communication of information. Harvey notes that 3: “A paradigm is formed when there is general consensus that the world view is good enough for the collective to gather around and from which it may progress. Hence the paradigm becomes more than an agreed theory of understanding but a much wider societal world view. The shift to digital systems as a means of communication and the transporting of information and digital products represents such a world view.” Harvey believes that there are fundamental challenges to our assumptions about law and they may revolutionise some established legal institutions and doctrines. He goes on to develop a basis for analysing the qualities of digital information, based differentiating it from print. In doing so, he impressively develops a form of taxonomy or classes of qualities occupied by specific exemplars.

Thinking about the aphorism quoted above, in one of the most interesting sections of the book, Harvey asks how we maintain the fundamentals of precedent in the digital paradigm? On the face of it, the (over) abundance of case law online and the sheer volume of preceding cases will be overwhelming unless counsel and judges determine what is relevant. In the United States there has been a move to separate cases with precedential use from those that do not have any value as a precedent. There are many rules surrounding the citation of cases as authority for a proposition. Anyone who has had to research in New Zealand in recent years will recognise the allinclusive quality of the current databases. With one exception4, the cases that are added are not necessarily of any precedential value. There is a catch all approach as opposed to the oldfashioned “Not recommended for publication” stamp some may remember. Harvey suggest that there are two possible and alternative ways forward5. The method first focuses on the content layer and ignores the fact that information and its communication

Harvey, David J. Collisions in the Digital Paradigm (Hart Publishing, Oxford, 2017). McLuhan, Marshall, Understanding Media: the Extensions of Man (London, Sphere Books, 1967) xxi 3 Harvey, Op cit, p18 4 The Law Report database, which has recently merged into Justis, specifically stated that it would only contain cases of either precedential value or that were legally interesting. 1 2

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is different from what went before. A number of rules might be developed around which challenges posed by digital qualities could be met. It is an artificial means of maintain a reality that, Harvey says, is no longer present. Harvey suggests that there is a second way where technology itself provides an answer. It involves artificial intelligence (AI). Legal information either in the form of statutes or case law is simply data which has meaning when properly analysed or interpreted. AI could be used to reduce the dataset to a relevant and manageable level. AI tools would then be deployed to measure the returned results against the facts of a particular case and to predict a likely outcome.6 To some degree the first part is already provided by some database space providers. The second part is nearly here.

So are we approaching the situation where we have decision by machine? What shape will precedent take in the future? Harvey notes that by travelling the digital path, we are irrevocably committed to a course that will change the doctrine of precedent as we know it7. This book is a scholarly, fascinating, and at times uncomfortable, look at the present and the future. Based on meticulous research and in-depth knowledge, it forces you to reconsider many of your current assumptions as to what the law should do when faced with this shifting paradigm. For most lawyers, this will be a “must have” book on their shelves, as it is increasingly difficult to think of an area that is not affected by the digital world. Even if technology is not your passion, Harvey’s insights are well worth the read. * Jacqui Thompson is the NZBA Training Director.

Harvey, Op Cit, p169. Ibid, p 170. 7 Ibid, p171. 5 6

Are you ready for Paperless Hearings? Like it or not, they are here. The next few months will see a transition in many hearings to using electronic documents and bundles. From how to mark up and comment as you go, through to speaking to the electronic documents, our workshop on 26 October will give you practice and confidence in handling yourself in a paper-less hearing.

Visit our website at www.nzbar.org.nz for more information.

Mastering Advocacy™ 34

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Ninth Annual Sentencing Advocacy Competition Natalie Foster*

The New Zealand Bar Association and the Ministry of Justice hosted the Ninth Annual Sentencing Advocacy Competition in August for students from the University of Auckland, University of Waikato and Auckland University of Technology. Each year the competition provides an opportunity for law students to learn how the sentencing process works and to develop their advocacy skills while appearing before Judges of the Auckland High Court. Students file written submissions and present oral submission for either the prosecution or defence in fictional cases. Preliminary rounds were held at the Auckland and Hamilton High Courts, with 24 competitors taking part. The fact scenario involved a charge of wounding with intent to cause grievous bodily harm. The offence was committed by a victim of domestic violence against her partner, a model, using hot shower water. The students commented on the valuable experience of receiving feedback from High Court Judges.

victim had directed racial slurs at the defendant, who was a martial arts expert. Justice Heath presided over the final. Following deliberation the Judge provided feedback to the competitors and announced Abhijit Desai as the winner of the competition. Mr Davey presented the certificates to the competitors and gave invaluable feedback to the competitors, as well as general comments on the importance of good written and oral advocacy. Attendees then enjoyed drinks and nibbles. The organisers gratefully recognise the support of the Bar Association, who provided the prizes, and thank all those who were involved in the competition. * Natalie Foster is a Judges' Clerk at the Auckland High Court

Eight students progressed to the semi-finals at the Auckland High Court which were judged by Justices Muir and Gordon. In the semi-finals, students faced a new fact scenario, involving a wayward young man who had pleaded guilty to aggravated robbery and driving in a dangerous manner. The standard of advocacy in the semi-finals was high and the Judges faced a difficult decision. Abhijit Desai from the Auckland University of Technology and Honor Kerry from the University of Auckland were ultimately selected as counsel for the final round of the competition held in Courtroom One at the Auckland High Court on 15 August 2017. Family members, fellow students and members of the profession came to watch the final, including Peter Davey as a representative for the New Zealand Bar Association. The final problem involved a law student who was found guilty of manslaughter after a night out where he had punched and kicked another student before placing him in a chokehold. The

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Petrol Heads’ Corner By Hybrid Harriet*

Our regular columnist and At the Bar editor, David O’Neill, was unable to contribute to this issue. We have therefore invited our sub-editor to write on a subject about which she knows nothing and is stunningly underqualified to write. Considering David has, however, volunteered to edit this column, and his views are a sharp contrast to those of our sub-editor, we can only conclude that disaster is imminent. Cars of the (near) future The good news is that the car as we know it is coming to an end. In the next decade (well, two decades when it comes to change on New Zealand roads) we are entering the era of the autonomous piloted vehicle.

spluttering person next to you. Or the one who spent most of last night in the pub and is now offloading alcohol fumes on you. Or the friends sitting two seats away yakking at the top of their voices about what someone said to someone else and why he/she is slime.

Personally, I can’t wait. Every time I go to the garage to fill up my efficient Toyota, I still feel pangs of guilt and wonder if I can afford to buy an electric car. Add to that, my navigational skills are nonexistent. I once navigated for a friend in Spain. We were heading South to the beach. We ended up North in a ski field with me assuring her until the last turn that I had it under control. That is a true story. Google Maps has not helped. The instructions are full of ridiculous statements like “in 500 metres turn left”. By the time I have thought about how far 500 metres is, I have passed three streets on my left, the second of which was the turn I wanted. I am the woman you see driving erratically down the road shrieking “Shut up you useless &*%#” to her phone.

I want the privacy and health benefits of travelling solo (or with people who I am interested in and/ or related to), the flexibility of not waiting for my transport to come at a certain time, comfort, time to do other things while travelling and the ability to get from my house to wherever I am going on the most direct route without having to travel via the nearest ski resort.

I need transport that does the thinking, driving and particularly the parking for me. I want to hop in, put on a belt, push the button for my coffee and start reading on my iPad (or equivalent). Eventually the vehicle will pull up at my destination, where I will hop out and it will disappear to go and park itself. I don’t care where but just don’t charge me.

The good news for all of you is that the transportation of the future will mean that drivers like me are a thing of the past.

But wait, you say, you have just described public transport. Well, no. After years of travelling on tubes in London and then buses in Auckland, I realise that the problem with public transport is, well, the public. You know, the sniffling coughing and

Autonomous driving and Driver Assists Driverless cars are not new. In 2014 Audi demonstrated a robotic RS7 which was mechanically like showroom models. It was a petrol guzzling 4.0-litre twin-turbocharged V8, eight-speed automatic transmission, and Quattro all-wheel drive. I have no idea what that means. Except it was powerful with 560 horsepower and 516 pound-feet of torque. I think that means it was fast. (It does. The RS7 is a seriously quick car - Ed)

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One big difference – no driver. GPS signals kept the RS7 on the track with left and right boundaries. There were extra cameras and sensors on the car that enabled the computer (which some moron humanised by calling it Bobby – a dangerous trend that needs stamping out) to determine the correct line to take. At speeds of up to 150 mph during a lap of just over two minutes, the piloted (driverless) RS7 was five seconds quicker than the equivalent RS7 with a “real” driver. The car also learnt the road/ track and applied safety standards as it went.1

smartphone is the control unit for this. As Audi’s website says2 : “Once the vehicle reaches its final position, the tiptronic is set to P and both the engine and the ignition are turned off. When it's time to leave again, the driver can start the car using the smartphone and have it pull out of the parking spot or the garage." Bliss. Why can’t I afford this? When will it come standard on your electric Toyota? Editor’s Comment: These aids for driving are already in many other European and Japanese makes. In the latest Audi – driven by a human – there is a system which keeps you between the centre line and the left hand white line, a system that keeps you in the traffic flow automatically and a system that will detect a car turning up ahead of you and automatically applies the brakes. This last one is actually a pain. The first time it was activated gave me a huge fright. I thought something had broken. I have since de-activated it.

Audi takes its driver assistance systems seriously. For example, “turn assist” monitors

What about the law? The law will be one of the biggest barriers to driverless cars hitting our streets in numbers. There are several ethical issues that need to be worked around the technology before we can consider what regulations we need. For example; if your vehicle is set to swerve to avoid an oncoming truck, and there is a group of children in the path of the swerve, what should the technology’s response be? Allow you to be killed so that you avoid killing the pedestrians – based on a theory of minimisation of loss of life?

oncoming traffic using radar sensors, a front camera and in some case a laser scanner. The system can intervene to brake to prevent the car from colliding with an oncoming vehicle and keep the vehicle in its own lane. Cruise control is nothing new and even controlling the distance between the car you are in and the one in front is not novel. But Audi added S tronic or tiptronic, which in heavy traffic will decelerate the car to a stop and then automatically resume driving, following the traffic ahead. If you are travelling at speeds about 65km/hr its active lane assist keeps the vehicle in its lane. A camera detects lane lines and the track that the car is following between them. There is a raft of other assists already in existence but let us dwell lovingly for a few minutes on my favourite (and indeed, my insurance company’s favourite); Audi AI (remote) parking pilot and Audi AI remote garage pilot. Thanks to these systems, the car will automatically roll into parallel or perpendicular parking spaces or into a garage. The driver can stand outside the car or remain seated. The There are various videos showing this lap on YouTube if you actually enjoy watching a car drive around in a circle

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Studies are already under way to discover how people feel about these ethical dilemmas3. One study gave participants a scenario in which one or more pedestrians could be saved if a car were to swerve into a barrier, killing its occupant or a pedestrian. The researchers then varied some of the details such as the actual number of pedestrians that could be saved, whether the driver or the car computer made the decision to swerve, and whether the participants were themselves the occupant of the car or an anonymous person. The result? People approve of self-driving cars being programmed to minimise the death toll by sacrificing the occupant to save other lives – so long as they are not the occupant travelling in such a car themselves. Hardly any surprise here, https://www.audi-mediacenter.com/en/technology-lexicon-7180/driverassistance-systems-7184 accessed 24/9/17

but some hard lines will need to be drawn by a brave (mythical?) legislature. There will of course be a lot of work in rewriting the traffic regulations, never mind the physical changes that will need to be put in place. But the suspicion is that driverless cars are more likely to creep in by way of giving the human occupant and legal authorities the illusion of driver control. In other words, the auto assists will all but drive the car with the hapless human holding on to the wheel for dear life and wondering when to throw the switch – any switch. The line between driven and driving will blur. This is possibly a cynical view of how the next phase of personal transport will play out. But we all know that law follows societal changes (as it should) and it may also prove to be a realistic view. Either way, there will be several ski fields that will miss my arrival – I hope.

Editor’s Comment: The advent of the electric car is really here. All the main car manufacturers are producing hybrids or completely electric vehicles. Autonomous cars are following suit. The days of the petrol/diesel engine must be numbered. Whether the days of the “driver in control” are numbered is another story. I suspect it will happen – but when? The legislative changes surrounding this will be massive. I, for one, do not want to be the hapless passenger in the self-drive vehicle which chooses to kill me rather than the bunch of people on the side of the road. On another note – I will be back to write about real cars next edition. I get my hands on the new Lexus LC 500 in December for 10 days. This is the latest offering from Lexus with a 5 litre V8 in it. Should be good. * Hybrid Harriet is our Training Director and SubEditor, Jacqui Thompson. The power of taking over Petrol Head’s Corner may have gone to her head. She is now muttering about test driving Teslas. She’s dreamin’, mate.

MIT Technology review https://www.technologyreview.com/s/542626/why-self-driving-cars-must-be-programmed-to-kill/ accessed 24/9/17

Events: 2017 Silks

NZBA President Clive Elliott QC (third from left) with, (left to right) John Dixon QC, Jenny Cooper QC and Andrew Barker QC. (Photo credit: NZLS)

Suzanne Robertson QC, Bankside Chambers

Dr James Every-Palmer QC, Stout Street Chambers

Call to the Inner Bar, Wellington Ceremony

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Auckland Silks' Dinner 31 August 2017

Adam Ross QC, Jane Anderson QC and Matt Casey QC

Katerine Wendt, David Bigio QC and Rebecca Rose

Kathryn Beck and Clive Elliott QC

Jim Farmer QC, Miriam Dean CNZM QC and John Dixon QC

Peter Speakman, Suzanne Robertson QC and David Neutze

Rosemary Thomson, Paul Dacre QC, Her Honour Judge Nicola Mathers and Hon. Justice Kit Toogood

Hamish Anderson, Rachael Reed QC and Honor Ford

Hon. Robert Fisher QC, Kate Wiseman and Stephen Mills QC

Sir Ted Thomas KNZM QC and Lady Margaret Thomas

Michael Reed QC and Stuart Grieve QC

Paul Borich QC, Clare Bennett and Chris Jane

Paul Cogswell, Vanessa Bruton QC and Grant Brittain QC

Andrew Barker QC and Ian Denton

Vicky Mount and Simon Mount QC

Mark Kelly, Steve Keall and Greg Blanchard QC

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Annual Conference, Blenheim, 15-16 September 2017

Garry Williams and Fiona Guy Kidd

Lara Mannis and Alec Steel

Stephen Bonnar QC and Belinda Sellars

Guyon Foley and Lee Treadaway

Jenny Cooper QC, Helen Coutts and Mike Heron QC

Steve Keall and Miriam Dean CNZM QC

Tim Cameron, Trevor Shiels QC and Warren Sowerby

Jenny Cooper QC and Suzanne Robertson QC

Paul Key QC and Peter Wright

Mike Lowe, Heather Skelton and Philip Skelton QC

Melissa Perkin, Phillip Rzepecky and Catherine Bibbey

Antonia Fisher QC, Hon. Justice Anne Hinton and Ian Taylor CNZM

Hon. Justice William Young and Stuart Grieve QC

Josh McBride, Lachlan Muldowney and Phillip CornegĂŠ

Matthew Casey QC and Andrew Barker QC

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Kellie Arthur and Simon Foote

Rowan Butler, Saul Holt QC and Paul Radich QC

Paul Key QC, Tim Cameron, Saul Holt QC and Simon Foote

Kevin Clay and Dale Lester

Matthew Pedersen, Margaret Broadbent and Kumi Sharma

Bridget Ayrey and Kila Pedder

Catherine Bibbey and Susan Mabey

Trish Buckley-AndrĂŠ and Prue Steven QC

Stuart Grieve QC, Antonia Fisher QC and Stephen Bonnar QC

James Little and Julia Adams

Helen Coutts, Rob Stevens, Fiona Guy Kidd, Hon Justice Denis Clifford, Jane Meares and Stephen Bell

Melissa Perkin and Clive Elliott QC

Peter Andrew, Susan Mabey and Peter Wright

Sir Ted Thomas KNZM QC and Dr James Farmer QC

Saul Holt QC and Paul Key QC

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Annual Conference 2017:

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2017-2018 COUNCIL CONTACT DETAILS 2013-2014COUNCIL CONTACTDETAILS CLIVE ELLIOTT QC – President Ph: +64 9 354 1419 elliott@shortlandchambers.co.nz KATE DAVENPORT QC - President Elect Ph: +64 9 307 8787 kate@katedavenportqc.co.nz JENNY COOPER QC Ph: +64 9 309 1769 jcooper@shortlandchambers.co.nz MARIA DEW Ph: +64 9 307 5251 maria@mariadew.co.nz JONATHAN EATON QC – Vice President Ph: +64 3 372 3466 j.eaton@bridgesidechambers.co.nz SIMON FOOTE Ph: +64 9 307 8784 swbf@simonfoote.co.nz LISA HANSEN – Vice President Ph: +64 4 914 1052 l.hansen@barristerscomm.com DALE LESTER Ph: +64 3 366 1465 dale@canterburychambers.co.nz JANE MEARES Ph: +64 4 974 5952 Jane.meares@cliftonchambers.co.nz DAVID O’NEILL – Treasurer / Vice President Ph: +64 7 839 1745 david.oneill@nzbarrister.com PAUL RADICH QC Ph: +64 4 974 5951 paul.radich@cliftonchambers.co.nz GRETTA SCHUMACHER Ph: +64 9 309 1769 gschumacher@shortlandchambers.co.nz ROB STEVENS – Associate Member Representative Ph: +64 9 302 1963 rob.stevens@pds.govt.nz DEAN TOBIN Ph: +64 3 477 8781 dean.tobin@princeschambers.net