At the Bar September 2011

At The Bar September 2011

NZBA’s 2011 Conference Chief High Court Judge, Justice Winkelmann, on Case Management Professor Todd on Torts

INSIDE THIS ISSUE Pg 2 - 2011 NZBA Conference Examines Barristerial Practice in the 21st Century Pg 6 - Chief High Court Judge Seeks Dialogue with Profession Pg 8 - Torts Update - Sensitive Claimants, Exemplary Damages and Leaky Buildings Pg 10 - Joint NZBA/AWLA Seminar - Walking the Talk Pg 12 - New Members of the New Zealand Bar Association Pg 13 - NZBA Scholarship Winners for 2011 Pg 14 - NZBA Makes Final Submission on Discovery Pg 15 - Intervention Rule Consultation Paper for Members Pg 17 - Recent NZBA News Pg 18 - Obituary - Legal World Mourns the Loss of Chief District Court Judge

EDITOR CATRIONA MACLENNAN Tel: 0064 9 378 0964 Email: catmac@orcon.net.nz EDITORIAL COMMITTEE Clive Elliott Tel: 0064 9 309 1769 Email: elliott@shortlandchambers.co.nz Melissa Perkin Tel: 0064 9 303 4515 Email: melissa.perkin@nzbar.org.nz Design and layout by Kirsten McLeod NEW ZEALAND BAR ASSOCIATION Tel: 0064 9 303 4515 Fax: 0064 9 303 4516 Email: nzbar@nzbar.org.nz Web: www.nzbar.org.nz P O Box 631 Auckland 1140

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2011 NZBA Conference Examines Barristerial Practice in 21st Century The independent Bar in New Zealand was growing and would continue to flourish and be indispensable but also faced some challenges, said AttorneyGeneral Chris Finlayson. Mr Finlayson delivered the opening address at the New Zealand Bar Association’s 2011 annual conference held in Auckland on 2 September. The theme of the conference was The Modern Barrrister.

Mr Finlayson said that the New Zealand Bar Association was in very good heart and ably led by President Miriam Dean CNZM QC, who contributed so much in so many areas.

The Attorney-General said that the legal landscape in this century would change as a result of technological innovation, with increasingly sophisticated clients armed with more information, greater market power to rein in costs and increased competition from outside legal services providers. He said that there was a great deal of pressure to reduce costs. Technology was replacing many tasks previously carried out by law clerks, while a new breed of legal services providers had emerged specialising in document review for large-scale litigation, meaning that some lower-level work was being performed in China or India.

Mr Finlayson said that unparalleled business opportunities awaited counsel who could work through clients’ complex issues but those who could not keep pace with technological change were likely to find themselves on the wrong side of history. He said that electronic discovery and the use of electronic courtroom resources were becoming increasingly common in Australia and other jurisdictions, paving the way for electronic courtrooms. Those innovations could substantially reduce the costs and time incurred in largescale litigation. However, he said that even greater assistance in achieving efficiency would result from counsel observing the rules that already existed.

The Attorney-General said that counsel needed to stop wasting time on producing massive bundles of unnecessary cases and also reiterated Justice Blanchard’s comment in Penny

& Hooper v Commissioner of Inland Revenue that it was undesirable and wasteful of time for experts’ views on legal issues to be included in expert briefs of evidence. Mr Finlayson said that all counsel should be concerned about the “remorseless mercantilism of legal practice” and its effect on civil justice.

Looking to the future, Mr Finlayson said that he doubted that there would be a split in the Bar along the lines in the United Kingdom. However, he expected that the Association would at some point probably assume responsibility for the education and disciplining of barristers. He said that he believed that the Intervention Rule should remain but there should be some obvious exceptions, such as legal aid work. He predicted that the Bar would continue to flourish and said that he would like to see the introduction in New Zealand of something like a pupillage system. If the Government was re-elected, the restoration of the rank of Queen’s Counsel would progress as speedily as possible. A large number of appointments would then need to be made to make up for the lack of appointments in the past three years.

The first session of the conference focused on Practice at the Bar in the 21st Century. Auckland District Court Judge, David Harvey, discussed how technology should be used in legal practice and in the courts. He urged lawyers to take the initiative and improve their skills in dealing with new technology, stating that information was power and those who could not use new technology skilfully were disempowered.

Judge Harvey queried why more use of technology was not being made in courts, stating that Power Point was a powerful medium and should be utilised. He said that the courts still did not have a sensible way of presenting illustrative evidence. Books of small photographs were still being used when it would be far more effective for the photographs to be projected in large scale onto walls with witnesses

being given laser pointers so they could indicate to the court the aspects of the picture they were discussing.

Judge Harvey also advocated more use of video footage but said that those in court needed to employ the pause button to maximise the utility of closed circuit material. He said that competent lawyers must now also be competent in the use of technology. Judge Harvery said that he used Twitter to keep up with legal developments. He suggested that counsel should consider becoming involved in blogging, referring to the United Kingdom Human Rights blog as a superb example of what could be done.

Financial Markets Authority Manager, Litigation, Larissa Vaughan, spoke about what general counsel were looking for when instructing barristers. Ms Vaughan, who was previously Associate General Counsel of the Litigation, Risk and Regulatory team at ANZ New Zealand, said that it appeared that the relationship between the Bar and in-house counsel was underutilised. She said that this should be of concern to barristers because in-house counsel were the gatekeepers to legal work and controlled annual New Zealand legal expenditure of more than $1.25 billion.

However, she cautioned that in-house counsel were not a soft touch for fees but rather were sophisticated, cost-conscious and demanding clients. Ms Vaughan said that in-house counsel might require barristers for specialist or technical advice, strategic input, second opinions on complex matters, as litigators or to provide extra resource support. She advised barristers to make themselves known to in-house counsel, stating that she had had only two approaches from barristers in 12 years working in-house, compared with the hundreds of approaches she had received from law firms. Ms Dean suggested that the Association could consider taking steps to promote links between barristers and in-house counsel.

Barrister Greg King spoke about criminal practice, stating that the pace of change in the criminal law sphere was feverish, with the speedy abolition of the defence of provocation being an example of how quickly hundreds of years of development could be swept away in the wake of a single unpopular case. He said that layers of complexity had been added to the system but the pertinent question was whether or not improvements had actually resulted.

Mr King said that change at the behest of social values was nowhere more evident than in the field of sentencing. Sentences had become longer and the sentencing process had become increasingly complicated. Less than a decade ago, it had been rare for the Crown to make submissions on sentencing and disputed facts hearings had not existed. He said that the added cost and resources involved in the sentencing process had achieved little and New Zealand now boasted the secondhighest imprisonment rate in the Western World.

Mr King said that he feared that the Criminal Procedure (Reform and Modernisation) Bill would, rather than simplifying processes, have the opposite result. He called for lawyers at the coal face of the justice system to be given a greater voice in law reform.

Barrister John Billington QC concluded the session by discussing the differences between the legal landscape when he commenced practice in 1972 and the current position. He said that efforts needed to be made to deal with the fact that civil cases could not now be litigated for less than several million dollars. The large costs involved meant that sections of the community were disenfranchised.

The second and third conference sessions examined Technology and the Law, with presentations about Cloud-powered law offices, the uses of Windows 7 for lawyers, social media and how to deal with inboxes. Session four dealt with Issues for Practice, with the focus being on e-discovery and on lessons to be learned from the Christchurch earthquakes. Barrister Gillian Coumbe, in a paper prepared for the conference, said that the area of electronic discovery that had generated the most litigation was discovery of “inaccessible” documents. She said that, in the early days of electronic discovery, particularly in the United States, the possibility of accessing an opposing party’s deleted documents had been seen as a great opportunity to uncover new evidence. That had resulted in intrusive and oppressive discovery requests.

However, the trend now in most jurisdictions was towards reining in this “dark side” as experience indicated that often the huge cost and burden of restoring inaccessible documents was not justified by the number of responsive documents found. As it turned out, there was rarely a smoking gun. Ms Coumbe said that the final new rules approved by the Rules Committee on 22 August reflected this trend. They did not effect significant change. Rather, they largely codified principles that the courts had slowly been developing for dealing with electronic documents under the existing general discovery rules.

Ms Coumbe said that the new rules contained a clear and welcome presumption against discovery of inaccessible documents. Parties wishing to access deleted documents would need to make a compelling case and would need to be confident of the ultimate utility of the exercise. Discovery in most cases would therefore be about the disclosure of accessible or primary documents. However, she emphasised that preservation would be of the utmost importance in the electronic era and it would be an onerous obligation involving difficult judgment calls.

Judge Harvey, commenting on the session, reiterated his message of the need for lawyers to upskill in relation to new technology. He said that counsel should be thinking about using digital tools to carry out electronic discovery. This required contextbased searches and predictive software analysis to properly include or exclude material. He predicted that electronic discovery would hasten the demise of the Peruvian Guano test. Judge Harvey said that the new discovery rules would require significant judicial involvement and would also require judges to enhance their technological skills so that properly-crafted timetabling directions could be made at case management conferences.

Ms Dean said that the Association was going from strength to strength. Membership numbers were growing and the organisation’s involvement in law reform and training was being enhanced. The NZBA was working on extending its relationships with key stakeholders such as the judiciary. The joint NZBA/ AWLA conference Walking the Talk had surpassed all expectations. Ms Dean thanked Council member and conference committee chair, Kate Davenport, NZBA Executive Director, Melissa Perkin, and NZBA administrator, Lisa Mills, for all their hard work in organising the conference. * The NZBA wishes sincerely to thank the conference sponsors – • ANZ Bank • Digital Mobile • Konica Minolta • LPF Group Ltd • Microsoft Office 365 • Office Max • Phoenix E-File • Thomson Reuters

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Lisa Hansen, Tim Castle and Karen Clark QC

Hon Justice John Priestley and John Billington QC

Kate Davenport, David McLay and Miriam Dean QC

Greg King and Judge Harvey

Andrew Barker, Sally Trafford, Tim Herbert, Simon Judd and Bob Hollyman

Malcolm Wallace

Warren Sowerby and Michael Webb

Larissa Vaughan

Professor Raymond Seminars in Auckland and Wellington International expert Professor James C. Raymond delivered a seminar in Auckland on Effective Oral and Written Techniques on 3 September, the day after the conference. Professor Raymond teaches legal writing to judges, attorneys and tribunal members in North America, Africa, the Caribbean, Asia and the South Pacific.

He is renowned for the new approach he has developed to identifying, arranging, contextualisng and analysing issues.

The aim is to assist decision makers and advocates to produce better judgments and pleadings in less time by eliminating jargon, irrelevant details, poor organisation, fuzzy reasoning and costly mistakes.

Miriam Dean QC

Professor Raymond was joined by an expert panel consisting of Justice Randerson, Robert Fisher QC and David Bigio. The seminar consisted of short lectures on topics including What Makes Good Legal Writing, Writing and Arranging Case-Specific Headings and The First Page Says it All. Short writing exercises were reviewed in small groups, with selected samples being critiqued by the panel and Professor Raymond.

A similar seminar was run in Wellington on 7 September, with Justice William Young, Professor Phillip Green and John Upton QC joining the panel with Professor Raymond.

Kate Davenport and Attorney-General Hon Christopher Finlayson

Hon Rober Fisher QC, David Bigio and Hon Justice Tony Randerson

Professor James Raymond

Former NZBA President Takes to Internet

Paul Dacre and Hon Justice Winkelmann

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Adrienne Wing, Stephen McCarthy, Kate Davenport and William McCartney

Barrister Jim Farmer QC, a former President of the New Zealand Bar Association, has established a website which includes a regular commentary on matters of topical legal interest – www.jamesfarmerqc.co.nz.

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Chief High Court Judge Seeks Dialogue with Profession

By Catriona MacLennan

A dialogue between the High Court and the profession was required to improve the processes for disposing of civil cases in the High Court, said Chief High Court Judge Helen Winkelmann. She told At the Bar that she was concerned that the strength of New Zealand’s civil courts was being “talked down,” which tended to be a self-fulfilling prophecy. Justice Winkelmman said that there was good access to justice in New Zealand and it was important that this was understood.

Chief High Court Judge However, improvements could be made and that was the purpose of a Helen Winkelmann series of forums being held around New Zealand in August and September to discuss proposals for managing the High Court’s civil caseload.

was intended to be intensely practical. It focused more on how litigation could be managed at the coalface than on structural reform. Rule reform was beyond its purview.

The forums, in Christchurch, Dunedin, Hamilton, Wellington and Auckland, would be chaired by Justice Winkelmann and led by judges and representatives of the Rules Committee. Justice Miller would be present throughout and Justice Venning would attend at some locations. One or more members of the Rules Committee – Justice Fogarty, Justice Asher, Stephen Mills QC and Andrew Beck – would also be on hand. NZBA President, Miriam Dean CNZM QC, will be attending the Auckland forum.

The forums would be invaluable for lawyers specialising in civil litigation but would also be of relevance to anyone interested in how civil cases were progressed. Each forum would offer a unique insight into how judges viewed the case management process.

Justice Winkelmann said in her speech that the starting point for any review or discussion must be to identify what was ideally wanted from case management. Working within the High Court Rules, the case management system should – • assist the parties, as soon was reasonably possible, to identify the issues that would be determinative of the proceeding. It should aid in the prompt identification of the key facts and law through pleadings and of the evidence through discovery, at the least possible cost to the parties. Those were objectives designed to minimise the barriers to resolution of the dispute in court.

• prevent or stop unreasonable behaviour by any party. Any incentives that existed within the system – such as the costs regime and the rules regarding joinder of additional parties – should incentivise behaviour that led to the just, speedy and inexpensive disposition of the proceedings.

• provide a certain hearing date at the first available opportunity • create good conditions for settlement, whilst not driving parties to compromise claims on an unprincipled basis out of despair, exhaustion of funds, or just plain exhaustion.

Justice Winkelmann said that case management was the principal means by which judges regulated litigation in New Zealand. It had been brought about as part of the reform of the rules governing civil procedure in the past 20 years. When it was introduced, its principal objectives were to speed the disposition and reduce the cost of litigation, thereby making court processes more accessible.

She said that the New Zealand case management regime had several features. Judicial case management conferences were used to manage the interlocutory stages and to assist parties to identify the issues. Judicial settlement conferences were used to facilitate early settlement, if possible. Her Honour said that all of these features were sound in concept, yet there was a widespread sense that cases were not appropriately managed and that proceedings quickly became too costly. There was also a view that disregard of the rules of procedure was regularly condoned by judges and that cases took too long to come to hearing. She said that she had accordingly decided to assess and review whether or not there was good reason for that dissatisfaction. That review was ongoing and Justices Miller and Venning were assisting her in the work.

However, Justice Winkelmann said that the review was not intended to produce a report of the type written by Lord Justice Jackson in the United Kingdom. Rather, the New Zealand review

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Her Honour discussed the inception of the review in her address to the NZBA’s annual conference in 2010. In her speech, she noted that, when she had become Chief High Court Judge, she had found that there was little detailed information about the High Court’s civil caseload. This meant that it was not possible to state, for example, what percentage of cases settled. It also meant that much of the literature about case management was based on impression, both in New Zealand and in other jurisdictions, because hard data was not available. However, the difficulty with impression as a basis for analysis or reform was that the things most impressed on memory were the situations that sat outside the ordinary. She suggested that, as lawyers, counsel retained and reported their memories of frustrating or unsatisfactory experiences and were unlikely to do the same for occasions when everything had “gone swimmingly.”

Her Honour said that it was important not to lose sight of the need for what Michael Black, the now-retired Chief Justice of the Federal Court of Australia, had described as “an unrelenting and laser-like focus” on identification of the issues and the related exclusion of everything that was not relevant to the resolution of those issues. She said that certain things would follow from a commitment to case management of this type.

First, as a profession, there needed to be encouragement of the involvement of senior counsel at an earlier stage. Secondly, the style of judicial conferences might need to be rethought. Currently they were 15 to 40 minutes long, which was insufficient time to conduct an in-depth analysis of the issues. Justice Winkelmann said that the point at which judges became involved in case management must also be reassessed. In the past few years, judges had pulled back from case management and left it almost exclusively to associate judges. However, she said that she did not believe that judges could afford to become so divorced from proceedings that they only received files a few days prior to hearings.

Justice Winkelmann said that another key objective of case management should be to provide a certain hearing date at the first available opportunity. She identified the delay in fixture dates as the biggest single failing in the present management of civil litigation. Justice Winkelmann said that delay in hearing disputes was unacceptable. The most effective case management that could be done would be to allocate early hearing dates.

A massive growth in summary disposition meant that it now occupied 50 per cent of judicial time.

“You cannot ever solve any issue simply by rules. What is required is a different culture operating in our courts and in the profession if we are going to make any genuine change in how we manage civil litigation to make the expenditure of resources more proportionate to the matters in issue.

We are hoping to engender a more open dialogue.”

Her Honour in the interview with At the Bar said that the review being conducted with the assistance of Justices Miller and Venning had set up a closed case review, sampling files from Auckland and Wellington. The three judges had looked at what had happened with the files and drawn conclusions about the rate at which cases settled and how long and short cases typically behaved.

Their tentative conclusions would be put together with the feedback from the forums to formulate some draft rules relating to case management. She said that the aim was to create a more nuanced system of case management.

The proposed new system would divide cases into short, straightforward cases, which required a short stint of case management and would move quickly to hearing without requiring the input of much judicial time, and complex litigation requiring a great deal of party and judicial resource. The second group comprised the cases which took up a lot of court time and were disruptive to planning because, although lengthy hearing periods were set down, these cases adjourned at a much higher rate than simple fixtures.

Justice Winkelmann said that a very strong theme of the consultation forums would be the need for greater proportionality in how cases were managed and how the profession serviced clients. She said that the judiciary wanted to speak to the profession about the research carried out by the three judges and their conclusions, as well as explaining how the judiciary organised its work. She said that, if lawyers did not understand how judges organised their work, it was hard for the profession to be clear about why judges had particular concerns and why certain features of the system existed.

Counsel needed to be clear about how judges set their work down, how they made the best use of judicial time and also how significant the civil workload of the High Court was. Justice Winkelmann said that there were often reports about how many cases were heard by the courts but such statistics could create a misleading picture because there had been a worldwide trend away from full trials to summary disposition.

beginning a discussion between the High Court and the profession about managing caseloads. It was important that the profession understood the proposals. Ongoing dialogue between the judiciary and the profession would be required.

The forums, organised by the Rules Committee, are in Christchurch on 23 August, Dunedin on 24 August, Hamilton on 30 August, Wellington on 14 September and Auckland on 15 September. Materials will be distributed at each forum. There is no charge for attending but interested parties are requested to advise the Rules Committee Clerk of their intention to attend – caroline.anderson@justice.govt.nz Her Honour said that approximately 10 per cent of ordinary standard proceedings went to full hearings and 20 per cent of originating applications (excluding bankruptcies) did so. She said that, compared with other jurisdictions, New Zealand was far ahead in its access to justice. In Australia, three per cent of cases went to full hearings, while in the United States it was 10 per cent or less.

She said that another issue to be discussed at the seminars would be a proposal for the adoption of performance standards by the judiciary.

These would measure factors such as the timeliness of disposition of categories of cases, as this had implications which were broader than the impact on the judiciary.

“If we expect a simple case to be dealt with within 12 months, that also has implications for the profession so we need to consult the profession about it.”

Justice Winkelmann said that the forums were not just about rules reform but about

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Torts Update - Sensitive Claimants, Exemplary Damages and Leaky Buildings

By Catriona MacLennan

that purpose. And deterrence is more likely to be achieved in relation to conduct that is intentional or reckless. Any deterrent role must be much diminished in a case where the defendant’s wrong was unthinking or inadvertent.”

Professor Stephen Todd A focus on the defendant’s state of mind was a more principled basis for deciding whether or not exemplary damages should be awarded than the uncertain and amorphous concept of the defendant’s conduct being outrageous, said Professor Stephen Todd of the University of Canterbury’s School of Law. Professor Todd was commenting on the Supreme Court decision in Couch v Attorney-General [2010] 3 NZLR 149, in which the majority held that the decision of the Privy Council in Bottrill should be overruled and that exemplary damages should be awarded in accordance with the test set out by the Court of Appeal in Bottrill.

Professor Todd told a Torts Masterclass organised by the Legal Research Foundation that it had been recognised by the courts on many occasions that the primary purpose of exemplary damages was to punish wrongdoers.

Some might see punishment as just one of a number of purposes, including deterrence, condemnation of wrongdoing, appeasement of victims and vindication of victims’ rights.

“Yet there is a strong argument that such additional perceived purposes are simply purposes of tort law generally, and that they lack any particular or sufficiently clear connection with the award of exemplary damages. And if we accept at least that exemplary damages have a proper role in deterring wrongdoing, on the basis that punishment is inextricably bound up with deterrence, the test for their award should be calculated to promote

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Professor Todd said that, in relation to punishment, the emphasis must be on the character of the defendant’s conduct, not on the injury or damage suffered by the plaintiff. However, outrage was very much a matter of individual impression, as it was a subjective concept on which minds could easily differ. By contrast, a test requiring advertence or recklessness as to consequences was based firmly on the quality of the relevant conduct, rather than the reaction to it by others.

It also set a more precise and certain standard.

“Intention or subjective recklessness achieves a degree of consistency with criminal law principles, and in this way it provides for the mental element that is the appropriate test for actions to be punished. The question as to the test for exemplary damages has a great deal more in common with these ordinary principles than with the lesser standards that sometimes suffice in the case of regulatory offences.”

Professor Todd said that the decision in Couch, by spelling out that the defendant’s behaviour needed at least to be advertent or reckless, had assisted in achieving greater clarity and certainty in the law. There was likely to be uncertainty in some or many cases whatever the test but the problem was exacerbated if outrageousness was the sole criterion.

In relation to sensitive claimants, Professor Todd said that such plaintiffs might fail in showing a duty of care on the simple ground that injury to them was unforeseeable. For example, a tomato grower who required water of a particular purity could not complain about damaging impurities when the ordinary drinking standard was satisfied – Hamilton v Papakura District Council [2002] 3 NZLR 308. However, Professor Todd said that a claim had –

exceptionally – succeeded in the case of Bhamra v Dubb [2010] EWCA Civ 13. A caterer for a Sikh wedding had included egg in some of the dishes, when this was forbidden by the Sikh religion for cultural purposes. One of the guests who was allergic to egg ate a dish with egg in it, suffered an anaphylaxic reaction, and died.

The defendant caterer had clearly owed a duty in contract to the bride’s father, who employed it not to use eggs in the dishes, said Professor Todd. However, the question facing the English Court of Appeal was whether or not it owed a duty to the claimant not to injure him by triggering the egg allergy. The court had concluded that the caterer was indeed liable. The “very unusual combination of circumstances” was sufficient to extend the scope of the caterer’s duty of care to harm in the form of personal injury suffered as a result of eating food containing eggs.

Professor Todd said that such a situation would not be covered by accident compensation in New Zealand as there was no personal injury by accident. Caterers would not normally be under duties to supply egg-free food. He said that caterers would be under an ordinary duty to provide non-contaminated food for guests without allergies.

Guests with rare, life-threatening allergies would be expected to inquire into the content of the food and to ensure for themselves that the food was safe to eat.

“A person with an extreme allergy to a common protein very arguably would be expected to warn the caterers and/ or avoid catered dinners and/ or carry an antidote. So we might conclude, contrary to the view of the Court of Appeal, that the caterer was under no duty to protect the plaintiff from the particular risk that eventuated.

Alternatively, we might say that there was no foreseeable risk of harm occurring in this kind of way and that the damage was too remote.”

Professor Todd also discussed cases relating to alleged failures to protect persons from self-inflicted harm. He said that one of these

was the decision of the High Court of Australia in CAL No 14 Pty Ltd v Motor Accidents Insurance Board (2010) 84 ALJR 1. The respondent’s husband had been drinking at a hotel. His keys were taken away but he requested them back and the licensee asked him three times whether he was “right to ride” a motorcycle before returning them. The man was killed in an accident resulting from his drinking.

The High Court of Australia held that the licensee did not owe the deceased a relevant duty of care. Professor Todd said that the court had been confident in rejecting the claimed duty but the decision was not especially convincing.

The publican had voluntarily assumed a responsibility to safeguard the patron from precisely the event which had occurred. Such assumption of responsibility was a well-established basis for imposing a duty to control the conduct of another.

Professor Todd also discussed the duty of care in relation to the inspection and approval of leaky buildings. He noted that the Court of Appeal had in 2010 heard two appeals on the vexed question of the liability of councils for negligence in the inspection or approval of buildings affected by socalled leaky building syndrome. The cases of North Shore City Council v Body Corporate 188529 [2010] NZCA 64 and North Shore City Council v Body Corporate 189855 [2010] NZCA 65 were then appealed to the Supreme Court, which issued a conjoined judgment unanimously dismissing the appeals.

The decision is reported in [2011] 2 NZLR 289. Chief Justice Elias, in agreement with Justice Tipping, had said that she did not consider that it would be principled to introduce restrictions on the liability of territorial authorities according to the form of ownership, the type of residence or the value of the building.

Professor Todd said that it was hardly likely that the court would have been minded to overrule Hamlin. The test that had now been confirmed – that the building be intended for residential use – was seemingly reasonably workable.

The possibility that a duty might be owed in respect of other buildings, such as schools and offices, remained.

Professor Todd said that there was something to be said for a duty in these other cases as well but the scale of the leaky building disaster was such that it was likely to be seen as a step too far.

In relation to limitation issues, Professor Todd said that a consequence of the Supreme Court’s decision was that a new limitation period might commence on every sale.

“The Supreme Court has recognised a duty on those responsible for the putting up of a defective building which is owed to the owner for the time being, even after the defect is discoverable and, it may be, has actually been discovered by a prior owner. When exactly does this cause of action accrue to the later owner? Perhaps the reasonable discoverability of a defect can be treated as contemplating not just a particular date from which time starts to run but a continuing state of affairs ? On this view a later purchaser acquires a cause of action on the date of the purchase, for then he or she suffers damage on becoming the owner of a house with an already discoverable defect. An

objection is still that the limitation period in effect is extended on the happenstance of the property being sold, but seemingly the test has to be modified in some way.”

Turning to defamation, Professor Todd said that it might be that the Lange political discussion privilege would expand into a general public interest defence, with guidance

from recent developments in Canada.

In Grant v Torstar Corporation (2010) 314 DLR (4th) the Supreme Court of Canada had created a new, stand-alone defence of responsible communication on matters of public interest. Professor Todd said that the necessary public interest was not confined to discussion of government or public matters.

“The subject-matter must invite public attention or substantially concern the public because it affects the welfare of citizens or attracts public notoriety or controversy. Some segment of the public must have a genuine stake in knowing about the matter, and the concept is not to be characterised narrowly.”

Professor Todd said that relevant factors in determining whether or not a communication about such a matter was made responsibly included the following – • the seriousness of the allegation • the public importance of the matter • the urgency of the communication • the status and reliability of the source • whether the plaintiff’s side of the story was sought and accurately reported • whether any public interest lay in the fact that the statement was made rather than in its truth, and • other considerations where relevant.

He said that it was apparent that the factors bearing upon responsible communication covered much the same ground as those identified in Reynolds. They included the neutral reporting of the fact that a statement had been made – so-called “reportage”- which had been protected in the United Kingdom on a broad view of Reynolds. Accordingly, the rule that repetition of a defamatory statement was a fresh publication and independently actionable, did not apply in the circumstances covered by the public interest defence.

Professor Todd noted that, in England, the Supreme Court in Spiller v Joseph [2010] 3 WLR 1791 at [117] had held that the defence of fair comment should be renamed “honest comment.”

The elements to the defence were that the opinion must be based on true facts, must be recognisable as opinion and must be genuine.

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Joint NZBA/AWLA Seminar - Walking The Talk More than 240 women lawyers crammed into an Auckland hotel room to attend an outstandingly successful seminar jointly organised by the New Zealand Bar Association and the Auckland Women Lawyers’ Association. The Walking the Talk seminar, held in August, discussed practical ways for women lawyers to make a difference for themselves and for others.

Barrister Deborah Hollings QC discussed three issues.

First, she examined the current position of women and said that change was occurring. The world was going through an amazing and unprecedented period in which the power dynamics between men and women globally were shifting. The majority of the paid workforce in the United States consisted of women and, in terms of numbers, women dominated a number of professions in the United States. In New Zealand, by 2018, the typical lawyer would be a woman.

Ms Hollings said that there were increasing numbers of women partners and more of them had children and spouses. She acknowledged that women still faced discrimination and blockages and said that there was not yet a meritocracy in relation to civil trials in the High Court. Ms Hollings said that the image previously used to describe the hurdles women faced had been that of the glass ceiling. However, she said that she believed that it was now more helpful to employ the metaphor of a bridge. Women should think of themselves as stepping onto to a bridge to begin their professional lives and walking across the bridge to success.

Secondly, Ms Hollings said that five techniques could be used to build confidence at work. These were the following • bluffing it – people sometimes had to display confidence even when they did not feel it and should recognise that winging it was a skill in itself • avoid perfectionism – women should be content with doing jobs as well as they could but should not worry about small matters • perspective –women tended to become more drawn into clients’ cases but should instead step back and recognise that it was the clients who had created the problems and the lawyer’s role was to try and assist in sorting them out • reframe failure – women should not be defeated by failures but should climb in windows if doors slammed in their faces • seek support.

Thirdly, Ms Hollings discussed confidence issues in other situations. She said that it was well known that women lawyers were paid less than their male counterparts for equivalent work. Women needed to go into bat for themselves and ask for pay rises if they found that they were being paid at a lower rate than their male colleagues. She urged women to accept partnerships if they were offered them. Self-employed people had far more control over their work and over work/life balance than employees did.

“Recognise these leadership roles are good roles. Women not pursuing partnership roles I think is a huge mistake.”

Ms Hollings said that is was perfectly possible to pursue a legal career and have children. She knew that because she had done it.

Barrister Michele Wilkinson-Smith discussed projecting confidence and the importance of “faking it until you make it.”

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She said that, early in her career, she had been terrified that she would make a single mistake that would end her legal career.

However, she had “borrowed” confidence from someone else to get by initially. She said that a colleague had advised her to say “yes” to any work she was offered. The attitude of agreeing to take on work and afterwards finding out how to do it was useful and women should adopt it as a strategy.

Genesis Power Ltd general counsel and company secretary, Maureen Shaddick, Maria Clarke of Maria Clarke Lawyers and Simpson Grierson partner, Phillipa Muir, discussed how to deal with roadblocks in one’s working life in the third session. The seminar ended with a panel discussion chaired

by Maori Television head of programming, Carol Hirschfeld, with contributions from barrister Kate Davenport, NZLawyer managing editor, Darise Bennington, Burke Melrose partner, Helen Melrose, Chief High Court Judge, Justice Helen Winkelmann, and Rank Group corporate in-house counsel, Kim Grenfell.

Women who attended the seminar described it as amazing and inspiring and said that they had left on a high. They said that they would be reflecting for weeks to come on what they had heard. Their expectations of the afternoon had been greatly surpassed and they appreciated the honesty, perceptiveness and humour that the speakers had brought to the discussions.

NZBA particularly thanks NZBA member Rebecca Edwards for all her hard work in organising the seminar. NZBA and AWLA are planning to repeat the seminar in Wellington.

Ms Wilkinson-Smith said that, if people faked confidence and survived the first time, the experience would be better the second time and eventually it would not be necessary to fake confidence.

“Be brave. Say yes. You probably won’t stuff it up. Even if you do, it won’t destroy your legal career.”

She said that female lawyers still struggled with the issue of their commercial worth. Women underbilled and wrote off time and she personally struggled with billing her private files. She said that feeling uncomfortable about billing at a proper commercial rate was an issue of confidence.

Yvonne McLean, Shan Wilson & Nerissa Barber

Emma Priest, Genevieve Denize and Miriam Dean QC

Christine Gordon SC & Kate Davenport

Kim Grenfell, Carol Hirschfeld and Justice Winkelmann

Rachael Reed, Rebecca Edwards, Maria Clark, Leigh Judd and Maria Dew

Gill Chappell, Kim Grenfell and Shan Wilson

Darise Bennington and Helen Melrose

Lisa Hansen and Lorraine MacDonald

Strategic Direction Consulting Ltd executive coach, Yvonne McLean, said that research had demonstrated that many high achievers were afraid of being exposed as “frauds” as they did not really believe that they were competent and deserved their success. She said that it was important to recognise and deal with fears. Visualisation and affirmations could be powerful tools to do this.

Women’s Affairs Minister, Hekia Parata, advised women to choose careers about which they were passionate, saying that they should not be content with less as they would spend a long time in the workforce. She said that women should be flexible about their choices because the world in 2011 offered far more opportunities than had existed in earlier days.

“The possibilities are endless and I commend them to you all.”

Ms Parata said that it was important to be tenacious.

“I went into jobs because I loved them and I expected the universe would reward me and that is pretty much what happened.”

The second seminar session dealt with “Presenting Yourself.”

Communicate Consultants director, Janine Gould, discussed the importance of first impressions. She said that people made judgements based on ethnicity, gender, age, appearance, facial expression, eye contact, movement, the amount of room a person occupied, touch and how a person sounded.

Only seven per cent of those judgements were based on what people actually said. Ms Gould said that people who used a lot of fillers in their speech such as “um” and “ah” or qualifications such as “perhaps” and “sort of” were likely to give an impression of lacking confidence. Barrister and NZBA president, Miriam Dean CNZM QC, said that it was important for women to dress appropriately and professionally. Bell Gully partner, Jenny Cooper, said that dress was an important part of a person’s image and how one presented oneself. Looking the part was very important in being accepted and winning professional opportunities.

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NZBA Scholarship Winners For 2011 a significant portion of my practice as being a criminal advocate.”

New Members of the New Zealand Bar Association

She said that winning the scholarship meant everything to her. She had wanted to attend the Litigation Skills Programme for several years but had not until now been able to afford it.

The New Zealand Bar Association is very pleased to welcome a large intake of new members, including a number of senior members of the judiciary. This is very encouraging in terms of the growth of the Association and augurs well for the future. The new members are as follows: Justice Pamela Andrews Auckland Mr Tony Balme Tauranga Mr Tony Beach Auckland Principal Youth Court Judge Andrew Becroft Wellington Mr Peter Birks Rotorua The Hon Justice Robert Chambers Wellington Judge Keith De Ridder Whangarei Mr Ross Dellow Auckland Judge Colin Doherty Christchurch Justice John Faire Auckland Mr Richard Fowler Wellington Justice Christine French Christchurch Mr Ian Gordon Wellington Judge Duncan Harvey Whangarei Ms Kate Hay Hamilton Ms Kimberly Jarvis Dunedin Mr Kelly Johnson Whangarei Ms Robyn Mackie Christchurch Judge Fred McElrea Auckland

Justice Forrest Miller Judge Barbara Morris Ms Sally Morris Mr Jonathan Natusch Mr Graeme Newell Hon Justice Mark O’Regan Ms Kelly Quinn Mr Gareth Richards Mr Steven Rollo Mr Stephen Scott Judge Allison Sinclair Ms Jenni Smith Mr James Stevenson Mr Blair Strang Miss Sally Trafford Justice Christian Whata Ms Stormie Waapu Ms Carolyn Browne Ms Jean McCormick

Wellington Auckland Auckland Auckland Auckland Wellington Auckland Wellington Christchurch Tauranga Auckland Auckland Auckland Auckland Auckland Auckland Auckland Christchurch Auckland

Sentencing Advocacy Competition The NZBA sponsored the 2011 Sentencing Advocacy Competition at the Wellington High Court. Law students from Victoria University competed in two nights of preliminary rounds, semi-finals and then a final which was held in Wellington on Wednesday 3 August.

The two finalists, Sarah Wilson and Finnian Howie, in the preliminary round and semi-finals presented submissions on the appropriate sentence for a defendant convicted on a charge of wounding with intent to cause grievous

bodily harm. The problem for the final was a blackmail charge, with Ms Wilson presenting the submissions for the defence and Mr Howie those for the Crown. Justices Gendall and Simon France presided over the final and declared Ms Wilson the winner of the 2011 Sentencing Advocacy Competition. Barrister Tim Castle described the event as a wonderful evening and said that he was impressed by the quality of the advocacy. The support of the NZBA and the Ministry of Justice was gratefully acknowledged.

Jenni Smith

Jennifer Campion

Auckland barristers Jenni Smith and Jennifer Campion were the 2011 winners of the NZBA Scholarship allowing recipients to attend the NZLS’ Litigation Skills Programme, held at the end of August.

Ms Smith graduated from the University of Auckland in 2003 with a BA/LLB. She was admitted in January 2004 and spent three years working as a junior to barrister Gary Gotlieb, specialising in criminal and traffic law work. She said that she had been the beneficiary of an extremely broad range of experience while working for Mr Gotlieb, with cases ranging from disorderly behaviour to homicide and everything in between. Ms Smith went out on her own at the beginning of 2007 and is now in chambers at Greenlane, where she continues to practise in the criminal and traffic law fields.

Ms Smith said that she intended to continue practising in the fields of criminal and traffic law but was also open to broadening her experience to include other areas of law.

“I have a passion for advocacy so I would want to retain

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Ms Campion graduated from the University of Waikato in 2008 with a BA/ LLB (Hons). She began practice in Auckland in March 2009 working as a solicitor at boutique litigation firm Wilson Harle, where she practised in the general commercial litigation field. From November 2010 until April 2011, Ms Campion worked at Lowndes Associates. In April 2011, she moved to work for barrister David Connor as an associate barrister. She is continuing to practise in the field of general commercial litigation.

Ms Campion said that the scholarship was a wonderful opportunity for her to develop her skills as an advocate, which was what she really wanted to do. She said that she would not have been able to attend the course without the scholarship and was extremely grateful to the NZBA for providing it.

“I’m really looking to build my experience in civil and commercial litigation and feel very privileged to have the scholarship and to be able to do so.”

Free Webinar About Legal Services Changes The New Zealand Bar Association and Thomson Reuters have created a Webinar about the Legal Services Act 2011, which is offered free to members until 10 October 2011. The majority of the new act came into force on 1 July 2011, making important changes to the legal aid system.

The Webinar contains an introduction by NZBA Executive Director Melissa Perkin, with the presentation itself being by Steven Zindel of Zindels, who has practised for more than 25 years and is an author of Thomson Reuters Looseleaf and online Legal Services publications.

The Webinar covers the following topics –

•

•

•

•

•

•

•

Tim Castle, Paula Tesoriero, Greg King, Sarah Wilson, Finnian Howie, Justice Simon France and Justice Warwick Gendall.

“The scholarship has meant the difference between attending and not attending. [The course] is an essential requirement to upskilling yourself to become a better advocate. I’m incredibly grateful to the New Zealand Bar Association.”

the purposes of the act prescribed offences time limits for reconsiderations reviews quality criteria invoices, and questions relating to the act.

The Webinar can be accessed by clicking on the link https://www.thomsonreuters.co.nz/catalogue/legal-services-webinar/

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NZBA Makes Final Submission On Discovery limit or expand the operation of the rule. It was accordingly suggested that sub-clause (1) of draft Rule 8.3 should be reworded to state that, as soon as a legal proceeding was reasonably contemplated, whether or not the proceeding had commenced, a party must take all reasonable steps to preserve documents that were, or were reasonably likely to be, discoverable in the proceedings.

Clive Elliott

Gillian Coumbe

The New Zealand Bar Association in August made a submission to the Rules Committee on the draft High Court Amendment Rules (No. 2) 2011 issued on 13 July 2011. The submission, prepared principally by barristers Clive Elliott and Gillian Coumbe on behalf of the NZBA, said that the Association had noted in its main submission dated 14 March that it was generally supportive of the proposed new rules relating to discovery but believed that they could be improved in certain areas. Practical suggestions for enhancements were included.

likely to be important so that parties knew whether or not the search had been adequate and whether or not it had complied with any prior agreement between them or prior court order. For that reason, and in line with the approach adopted in the United Kingdom, it was recommended that draft Rule 8.27(c) be expanded to state expressly that a party should set out the extent of the search that had been made to locate discoverable documents and at the same time identify any limits to the search and explain this with sufficient particularity.

The August submission said that the NZBA was pleased that a number of its recommendations had been adopted by the Rules Committee.

It considered that the final draft rules represented an important step forward. However, there remained a couple of areas which would benefit from further refinement and clarification. The Association considered that those remaining changes should be made at this point, rather than at a later time.

“The final draft rules do not adopt the suggestion that there should be an obligation to disclose what categories or classes of documents have not been searched, for example, on the basis that it would be disproportionate. This is important as it is likely to be an area of regular controversy between litigants, particularly in relation to categories (and storage locations) of electronic documents. Such an addition would also be consistent with rules in other jurisdictions.”

The submission discussed four specific areas in which the NZBA believed that further refinement of the rules was required. The first of these related to disclosure of the extent of electronic searches. The submission said that, as noted in paragraph 19 of the Association’s main submission, disclosure of the extent of an electronic search was

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Secondly, the submission noted that the Association in its main submission had proposed that an express obligation to preserve documents should be included. That obligation had now been inserted into the new draft Rule 8.3. However, the submission said that the current wording of the rule might unduly

Thirdly, the submission said that detailed comment had been made in the Association’s main submission about cost-shifting. The Association had suggested that the modified Zubulake criteria provided a practical and useful set of guidelines and that the draft rules would benefit from their inclusion. It had also been recommended that draft Rule 8.34 be altered expressly to permit a cost-shifting order to be made when an order for discovery was made.

The submission noted that the first recommendation had not been adopted but the second had to some extent been taken up. However, it was unclear why draft Rule 8.22(1) required it to be shown that it would be “manifestly unjust,” whereas draft Rule 8.22(2) used a criterion of “just.” The submission said that the same standard should apply and it would be advisable to state explicitly that the orders made might relate to “cost-shifting.” The submitters also expressed concern that the draft rule provided that a cost-shifting order could be made “after the party has complied.” They said that this might create practical difficulties as parties should know where they stood in advance.

Finally, in relation to sanctions, the submission stated that insufficient guidance was provided in the draft rules as to what was unacceptable conduct in relation to discovery and no guidance was given as to the consequences of failing to comply with the discovery process. Mr Elliott and Ms Coumbe said that the Association remained of the view that this was an issue that needed to be addressed at this time.

The submission is available in full on the Association’s website. *Concurrence of the Rules was due by 6 September 2011.

Intervention Rule Consultation Paper For Members Retention but relaxation of the Intervention Rule is discussed in a memorandum prepared by the New Zealand Bar Association’s Consultation Committee (chaired by Chris Gudsell QC) for members as part of the continuing review of the rule. The memorandum was provided to members in late July 2011 and members were invited to provide their comments in response by 10 August. That feedback informed the preparation of the Association’s submission to NZLS, which was required by 2 September.

The July memorandum noted that the Association’s current position on the Intervention Rule was set out in a letter dated 8 June 2010 to the chairman of the Working Group on the Intervention Rule. Essentially, the Association’s view, as set out in that letter, was that the rule should be retained, subject to some exceptions and the further development of practising requirements for barristers.

The July memorandum stated that, unless changes were made following this further round of consultation, the letter would provide the foundation for the Association’s submissions to the NZLS in the current, second round of consultation.

The memorandum noted that the Association had proposed two options with regard to exceptions to, or relaxation of, the Intervention Rule. The first of these was that the current Intervention Rule should be retained but dispensation guidelines should be developed to allow for some relaxation in relation to certain categories of work. Alternatively, the Intervention Rule should be replaced by a new rule modelled on the Scottish or Victorian rules, expanding the categories of work for which direct instructions would be allowable. In relation to both options, the Association’s position was that it was essential that further attention should be given to practising and training requirements for barristers.

The memorandum said that the Association was of the view that the Intervention Rule should be retained for the following reasons – • it ensured barristerial independence • the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care)

Rules 2008 must give effect to the statutory distinction between practice as a “barrister” and practice as a “barrister and solicitor.” The rule was the essential distinguishing feature between the two types of practice and the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules also recognised the statutory distinction • the Intervention Rule was in the public interest, was efficiencyenhancing and promoted competition.

The rule was especially important in maintaining a strong Bar and so enabling smaller and medium-sized law firms to compete effectively with larger firms.

The memorandum said that the significance of the Intervention Rule to the independent Bar could not be overstated. The current review of the rule would, to a great extent, shape the future of the independent Bar in New Zealand. It was therefore critical that all members of the independent Bar engaged in informed debate on the subject. However, the document said that it appeared that the wider implications of any change to the current Intervention Rule were underestimated or misunderstood by many. The NZBA Council accordingly considered it prudent to highlight several matters of particular importance requiring members’ consideration.

“The Intervention Rule is more than simply a rule requiring an

instructing solicitor. It is an essential distinguishing feature between practice as a barrister and as a barrister and solicitor, a distinction recognised by the Lawyers and Conveyancers Act 2006. It is the rule that preserves barristerial independence, which itself is so fundamental to the independent Bar’s raison d’etre. Barristers must stand aside from pressures “not to rock the boat” (whether it be politically or in terms of public perception) when asked to provide an opinion or litigate an unpopular but legally sustainable argument. Equally, barristers must not succumb to commercial pressure to run a clearly unsustainable argument. The Intervention Rule is the barrier to pressures of this kind overwhelming those practising at the independent Bar, even (and indeed especially) where they cannot be resisted by solicitors, who are often more dependent upon continued work from clients, or may be under pressure from within their firm to adopt or follow a particular argument or point of view.”

The document said that the Intervention Rule had generally worked efficiently for centuries and remained in place in other Commonwealth jurisdictions. There were thus strong arguments that it was in the public interest for the rule to be retained.

“Indeed, members might well ask themselves how, absent the Intervention Rule, they would be able to distinguish, and market, themselves in competition with those practising in law firms ? What difference would there be between a barrister sole and a barrister and solicitor practising without a trust account ?”

In addition to the above matters of principle, the memorandum said that any change to the Intervention Rule might have a number of practical consequences which members needed to consider. The first of these related to fees. The memorandum noted that Rule 14.2(e) of the Lawyers and Conveyancers Act (Lawyers:

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will be “co-opted as the NZBA representative… something similar.

Conduct and Client Care) Rules 2008 prohibited barristers from receiving or holding money or other valuable property for or on behalf of another person. If barristers were able to accept instructions directly, they would not have the ability to require money to be paid into their instructing solicitors’ trust accounts to cover their fees. This difficulty would not be able to be avoided by rendering bills in advance of carrying out work and then requiring payment before the work was done. Members accordingly needed to consider how this issue would be dealt with if direct instructions were permitted.

Secondly, the Commissioner of Inland Revenue accepted returns of income from barristers on a cash basis. That was not the case for solicitors. Changes to the Intervention Rule might result in the cash basis no longer being available to barristers. Thirdly, consequential amendments to the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 would be required if direct instructions were allowed. Fourthly, the Association had fought hard to reinstate the appointment of silks from the independent Bar only (with the exception of honorary appointments). Abolition of the Intervention Rule could well jeopardise this.

The memorandum went on to observe that the review of the Intervention Rule being undertaken by the NZLS was likely also to be concerned with the interests of consumers of legal services. Issues likely to form part of that debate included the maintenance of professional standards and the quality of work being provided by barristers; whether or not the Intervention Rule enhanced efficiency; and adequate access to legal services by consumers.

“Whatever may be convenient to barristers, decisions concerning reform of the Intervention Rule are likely to be driven by these concerns. Members are encouraged to consider the way in which all of the interests (including those which are difficult to reconcile with each other) can be recognised.”

The memorandum said that the NZBA Council considered that it was now appropriate to provide more details of the

two options proposed by the Association in the first stage of the consultation on the future of the rule. The document set out summaries of the Scottish and Victorian models.

The Scottish model provided that advocates might not accept direct instructions from clients except in the cases detailed in an appendix. The appendix allowed for the acceptance of direct instructions from legal professionals, other professionals, public authorities and specified other persons or bodies. Advocates were prohibited from accepting instructions to receive or handle clients’ money and do administrative work normally carried out by instructing solicitors.

The Victorian Bar Association Practice Rules provided that, subject to the Direct Access Rules, barristers should not advise or act in a professional capacity unless instructed by a solicitor or legal practitioner. The Direct Access Rules set out the situations in which barristers could carry out work on direct access instructions. These included appearing for legally-aided persons in criminal matters in the County Court or in criminal matters in the Magistrates’ Court or the Federal Magistrates’ Court. Barristers were prohibited from accepting instructions to appear in direct access matters in the High Court of Australia, the Federal Court of Australia and other courts except with the written permission of the Ethics Committee.

The memorandum noted that the Council was conscious that members’ views were divided on the future of the Intervention Rule. It said that the Council would not simply be advocating an approach to the rule that favoured either those who supported its outright abolition or those who supported no relaxation at all. The Council intended rather to take a principled approach, whereby the Intervention Rule was maintained but exceptions were identified in response to practical circumstances in which the fundamental principle of barristerial independence was not compromised.

The NZBA’s submission to the NZLS on the Intervention Rule was being finalised as this edition of At the Bar went to press and members will receive a report on the contents of the submission at a later time.

Recent NZBA News

By Melissa Perkin, NZBA Executive Director New Council

The new Council for 2011-2012, declared at the Annual General Meeting on 2 September 2011 is: President: President Elect: Members:

Miriam Dean QC (Auckland) Stephen Mills QC (Auckland) Catherine Bibbey (Christchurch) Tim Castle (Wellington) Gerard Curry (Auckland) Kate Davenport (Auckland) Clive Elliott (Auckland) Lisa Hansen (Wellington) Elliot Hudson (Waikato) Paul Mabey QC (Waikato) Sally Morris (Auckland) Dean Tobin (Dunedin) Malcolm Wallace (Christchurch)

It is with some sadness that we will be losing three Council members, Chris Gudsell QC, Kenneth Johnson and Anthony Rogers. All three have contributed significantly to the Council’s work and we will miss them, however each of them will remain actively involved nonetheless in the Council’s work.

Criminal Committee and Criminal Bar Association Exploratory discussions have been held with the Criminal Bar Association regarding our future relationship. In the short term, however, there is a need for our Association to step up its representation of, and involvement with, the criminal Bar. Initiatives with this are set out in the President’s recent letter.

The Association now has representatives on the Rules Committee, including the newly formed Criminal Rules Committee, and will consequently become even more active in the area of criminal law reform. The Criminal Rules Committee will have a full agenda with the criminal modernisation legislation and the Association is keen to assist in rule development. It is also keen to continue with its training programmes for criminal advocates, in which a number of Crown Solicitors/Counsel and Public Defenders have been involved. The Association also wishes to speak publicly more often on matters affecting the criminal Bar. A new Criminal Committee is being formed for this purpose and will seek to involve members in its work.

Rules Committee

Stephen Mills QC has now been seconded to the Rules Committee which will enable the Association to have more of a voice at the early stage of law reform. David Goddard QC has kindly agreed to be the NZBA representative on the TransTasman Reform Committee. Kenneth Johnston is co-opted as the NZBA representative on the Criminal Rules Committee.

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Intervention Rule Consultation

The New Zealand Law Society has begun the second stage of its consultation on the Intervention Rule required by rule 14.5 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008. Chris Gudsell QC as chair of the Association’s committee has produced a consultation paper which solicits the views of our membership and we have received feedback from a number of members. A final paper was prepared and reviewed by the Council in time for the 2 September 2011 deadline.

Walking the Talk Conference

A very successful half-day conference, Walking the Talk, was co-hosted by the Association and the Auckland Women Lawyers Association, and was held in Auckland on 17 August.

Continuing Legal Education

Seminars including presentations on forensic science issues by ESR and the Independent Forensic Practitioners Institute, mental health, changes to trust law and a seminar on cross examination involving Jim Farmer QC, Chris Gudsell QC and Gerard Curry have been held recently.

Meeting with the Tauranga Bar

The Council met and had lunch with members of the Tauranga Bar at its 1 July Council meeting.

Prosecution Review

Miriam Dean QC, Gerard Curry, Anthony Rogers and Melissa Perkin met with John Spencer who is conducting a review of prosecution services at present.

Legal Aid

There has been considerable correspondence and discussions between Miriam Dean QC and various parties with regard to various concerns arising from the new legal aid rules, especially the recency criteria. Miriam Dean QC, Melissa Perkin and Stuart White, Acting Deputy Secretary Legal Services at the Ministry of Justice, also met to discuss these issues.

New Zealand Law Society

Discussions with the New Zealand Law Society in relation to the employment of junior barristers under pupillage schemes or a contract for services continue.

Meeting with Steve Zack, President of the American Bar Association

Members of Council met with President of the American Bar Association, Steve Zack, in late August in both Auckland and Wellington.

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Obituary Legal World Mourns Loss Of Chief District Court Judge

By Catriona MacLennan

Judge Johnson practised law for 24 years in Auckland, with a two-and-a-half year interval working in Hong Kong as a Crown Counsel during the mid-1970s. Judge Johnson prosecuted both criminal and tax cases during his time in Hong Kong.

Auckland mayor Len Brown and Judge Johnson worked at the same law firm for a time. Mr Brown described Judge Johnson as a pre-eminent New Zealander and loyal friend and said that, in their practice together, he had seen first-hand the judge’s commitment and love for the people of Auckland.

In 1993, Judge Johnson was appointed a District Court Judge.

He was based at the Waitakere, Auckland and Manukau District Courts. At the Waitakere District Court, he was involved with New Zealand’s first Family Violence Court. When he moved to the Manukau District Court, he initiated the creation of a specialist court modelled on the Waitakere one. In late 2004, Judge Johnson called together victim advisers, lawyers and court staff to discuss the setting up of such a court.

Chief District Court Judge Russell Johnson Chief District Court Judge Russell Johnson will be remembered affectionately and respectfully by judges and lawyers as a great New Zealander whose shock death on 24 July 2011 has left a huge gap in this country’s legal world.

Judge Johnson was renowned for his large heart, people skills, smiling demeanour and commitment to restorative justice, combating domestic violence and innovation in the courts. The three great passions of Judge Johnson’s life were his family, law and the navy. He left his mark on all three spheres.

Judge Johnson attended Kaitaia Primary School and completed his secondary schooling at Inglewood High School before graduating with an LLB DipCrim from the University of Auckland.

Manukau District Court Executive Judge, Charles Blackie, met Judge Johnson in 1965 when they were both 18 and had arrived in Auckland to attend law school. Judge Blackie, who was from Putaruru, stayed at the Auckland City Mission’s hostel for young people from the country. Sitting at the lunch table soon after his arrival, he was asked what he planned to do in Auckland. When Judge Blackie said that he was going to study law, another voice piped up that its owner would be doing the same thing. The other voice belonged to Judge Johnson, who was from the small community of Inglewood. The chance meeting was the start of a life-long friendship between the two men, who went through law school together, joined the navy in tandem and rose to high ranks, and also both became judges.

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At the meeting, he delivered a heartfelt and compelling speech about the blight of domestic violence on New Zealand society and the failure of the criminal justice system to deal effectively with it. Judge Johnson asked those present to imagine 400 or more women being “punched, kicked, stabbed or beaten with a belt” every month across the road in the Manukau shopping centre. He said that there would be an outcry and the community would mobilise to protect itself. However, because the violence was happening in the women’s homes “What do you get ?

Same results but only muffled concern…What’s happening ?

Something is wrong with the process.”

Judge Johnson said that a combination of behaviours was coming together to frustrate justice and a new, effective and workable model was required for processing family violence cases in the criminal court. He said that the Manukau judges were aware of the problems and wanted a system that was “more than a masquerade.” The Manukau Family Violence Court began operating in February 2005.

Judge Johnson was appointed Chief District Court Judge in 2005 and moved to Wellington. His six years as head of the country’s busiest court were characterised by his scrupulous fairness, imperturbability and cheerfulness in the face of pressure and a huge workload. As well as carrying out his administrative responsibilities, Judge Johnson continued to preside over court sittings and was invariably speedily on the spot in different parts of the country to take responsibility personally when crises arose or there were difficult cases to be heard.

He continued to advocate improvements to district court processes. In 2009, Judge Johnson described new rules aimed at resolving civil disputes in district courts as a world first which would mean that “greater access to justice will not be empty rhetoric but an achievable reality for many.” In the same year, he delivered a speech in which he called for an end to “political

poker” with the criminal justice system. In mid-2011, Judge Johnson took the unusual step for a judge of appearing on television channel Media7 to discuss criminal justice issues.

Judge Johnson was known for his commitment to restorative justice and was a supporter of the rangitahi courts.

He encouraged the appointment of Maori judges and the use of te reo in the courts.

Judge Johnson was a judge of the Supreme Court of Pitcairn Islands and a Deputy Chief Judge of the Court Martial. He was appointed a Deputy Judge Advocate General of the Armed Forces in 2011.

Judge Johnson and Judge Blackie shared long naval careers. They began as ordinary seamen, with their lives frequently involving legal work during the day and naval commitments in the evening and at weekends. Judge Johnson had lengthy sea deployments, commanding patrol craft and spending a summer in the Antarctic. He and Judge Blackie were involved in tactical exercises involving both New Zealand and Australia. Both men commanded ships. Judge Johnson remained in the navy for 25 years, serving as an officer of the Royal New Zealand Naval Volunteer Reserve and being awarded the Volunteer Reserve Decoration in 1987. He retired as Commanding Officer of the RNZNVR in Auckland in 1992 with the rank of Commander RNZNVR. Judge Johnson was a keen and accomplished small boat sailor and always owned a craft of one type or another. These were not always reliable vessels and there were frequent breakdowns and founderings.

He and other Auckland judges enjoyed numerous sailing excursions. In addition, Judge Johnson had a lengthy involvement with the youth programme, the Ark Trust, served on the Law Society and was president of the Auckland Officers’ Club.

Judge Johnson is survived by his wife, Margaret, daughters Katherine and Sarah, and five grandchildren. He was very much a family man and enjoyed family holidays with his daughters and was devoted to his grandchildren. Tributes to Judge Johnson have flowed from all sectors of the legal world. Judge Blackie summed up Judge Johnson’s life when he said that he had left a gap that would not be easy to fill. Judge Blackie said that there were few activities in which Judge Johnson was involved that did not result in him ending up as president, or otherwise in charge of, the relevant organisation.

Chief Justice Dame Sian Elias Russell Johnson was a great New Zealander. He was a man of great kindness and decency who loved his country and its people. He is a loss to us all. Those who were privileged to work with him and call him a friend feel particularly bereft.

Chief Judge Johnson was an outstanding judicial leader and a dear friend and cherished colleague to all judges, across all courts. He was someone who exercised the authority of office scrupulously, with care for all and no airs. He was generous, good-humoured and measured in all he did. He was a fine lawyer and, as Chief Judge, he led from the front.

Principal Family Court Judge Peter Boshier Chief Judge Johnson led our bench with enormous personal commitment and with a high ethical style. He was widely respected by the 149 judges whom he led. Judge Johnson managed a complex job with diplomacy and patience but with polite firmness. He was collaborative, never dictatorial and driven by principle.

Auckland District Court Judge Fred McElrea Chief Judge Johnson was an outstanding leader of the country’s largest court, the District Court. He was able to make hard decisions but did so after gathering all the relevant material and consulting those affected. He had excellent “people skills,” whether dealing with officials, other judges or defendants in court. His gentle manner and good humour helped defuse difficult situations – sometimes a smile, a sigh and a shrug of the shoulders put difficult matters in perspective even before he said a word.

Auckland District Court Judge Phil Gittos Chief Judge Johnson was a notable small boat sailor and owned small craft all his life. He had an abiding, scholarly interest in naval history, particularly the era of sail at the time of the Royal Navy’s ascendancy of the seas.

Manukau District Court Judge John Adams Chief Judge Johnson acquired early a reputation in the judiciary as a peacemaker.

He had wonderful skills when it came to pursuing change. Among his favourite initiatives were prioritising domestic violence courts and encouraging courts that included Maori. He was concerned about high levels of imprisonment and the inequities that appear from those statistics. He embraced diversity and aimed to bring District Courts into modern relevance in our changing community. His personal warmth and lack of airs were accompanied by a firm vision about New Zealand’s social and justice needs. He was compassionate, funny, understanding and yet he was a firm, reliable hard-working judge who led by example. He loved his wife and family. He was greatly appreciated by his judicial colleagues. In many ways he was a quintessential leader for the District Court in these times.

Supreme Court of Samoa Judge, Vui Clarence Nelson Chief Judge Johnson was a credit to the New Zealand judiciary. He was an endearing character and a very approachable, practical individual. He was always ready to assist the Samoan courts in any way possible and will be sorely missed. Taken too soon when so much good work remains to be done. As we say in our country “ia pau se toa, ia toe tu mai se toa” (“As a warrior falls, so let a warrior arise”).

Attorney-General Christopher Finlayson Chief Judge Johnson was an outstanding leader for what is the largest court in Australasia and the frontline of our justice system. Most recently his leadership was evident in the support he provided to judges and the community in Christchurch following February’s earthquake.

Justice Minister Simon Power Chief Judge Johnson worked constructively with the Government to improve the operation of the District Court. He made valuable contributions to the current criminal procedure reform programme and the development of a new District Court operating model in Auckland.

Courts Minister Georgina Te Heuheu Chief Judge Johnson had huge administrative responsibilities but was every bit a team player. Quite often he would sit in District Courts in every corner of New Zealand to cover for judges who were unavailable for some reason.

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2011 - 2012 COUNCIL CONTACT DETAILS from 1 October MIRIAM DEAN QC - President Ph: 0064 9 377 8959 Fax: 0064 9 377 8960 P O Box 4111, Shortland Street, Auckland, 1140 miriam@barrists.co.nz STEPHEN MILLS QC - President Elect Ph: 0064 9 307 9820 Fax: 0064 9 307 1572 P O Box 4338, Shortland Street, Auckland, 1140 stephen.mills@shortlandchambers.co.nz CATHERINE BIBBEY - South Island Vice-President Ph: 0064 3 377 5589Fax: 0064 3 365 2592 P O Box 13-868, Armagh, Christchurch, 8141 c.e.bibbey@xtra.co.nz ELLIOT HUDSON - Treasurer / Secretary Ph: 0064 7 839 6644 Fax: 0064 7 839 6610 P O Box 19252, Hamilton, 3244 elliothudson@xtra.co.nz TIM CASTLE Ph: 0064 4 471 0523 Fax: 0064 4 471 0672 P O Box 10048, Wellington tim.castle@xtra.co.nz GERARD CURRY Ph: 0064 9 377 9783 Fax: 0064 9 377 9784 P O Box 106586, Auckland, 1143 gerard.curry@argylechambers.com KATE DAVENPORT Ph: 0064 9 307 8787 Fax: 0064 9 307 8788 P O Box 141, Shortland Street, Auckland, 1140 kate@katedavenport.co.nz CLIVE ELLIOTT Ph: 0064 9 309 1769 Fax: 0064 9 366 1599 P O Box 4338, Shortland Street, Auckland, 1140 elliott@shortlandchambers.co.nz LISA HANSEN Ph: 04 914 1052 Fax: 04 473 3179 P O Box 8045, Wellington 6143 LisaHansen@barristerscomm.com PAUL MABEY QC Ph: 07 5771091 Fax: 07 5771092 P O Box 13199, Tauranga 3001 pgmabey@xtra.co.nz SALLY MORRIS - Juniors Barristers Representative Ph/ Fax: 09 551 4400 sally@sallymorris.co.nz DEAN TOBIN Ph: 0064 3 477 8781 Fax: 0064 3 477 8382 P O Box 1424, Princes Chambers, Princes Street, Dunedin, 9054 dean.tobin@princeschambers.net MALCOLM WALLACE Ph: 0064 3 379 6976 Fax: 0064 3 365 2592 P O Box 13254, Armagh, Christchurch, 8141 malcolmwallace@bridgesidechambers.co.nz

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